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PSDA
E-CONTRACT
CLASS: 4-E
This Agreement is made and entered into as of the January 1, 2009 ("Effective Date")
by and between the NaviSite, Inc. ("NaviSite"), a Delaware corporation having an
office and place of business at 400 Minuteman Road, Andover, MA 01810 and Clear
Blue Technologies, Inc. a Delaware corporation having an office and place of
business at 100 First Street, Suite 1000, San Francisco, CA 94105("CBT") and the
wholly-owned subsidiaries of CBT listed on the signature pages hereto. ("CBT").
Now therefore, in consideration of the terms and conditions set forth herein, the
parties agree as follows:
Scope
NaviSite is going to provide management services to CBT related to: (i) the
discontinuation of certain operations and data centers if and as decided by CBT to be
discontinued and (ii) certain administrative, legal and human resources as described
herein. The scope of this document is limited to the Services and Optional Services to
be provided and the payment for said work
Services
1. Operation Management
c) Security Services- including VPN configuration/support, firewall support, IDS support and
vulnerability scans.
g) Customer response and management- general customer support including: space, power
and cross connect add-ons, providing answers to billing questions, incident handling and
operations projects, implementations and project management, renewals SPAM handling,
customer communications and special requests such as de-racking equipment.
2. Sales and Sales Support NaviSite will provide sales services including:
3. Financial and Accounting Services NaviSite will manage and perform the following
financial and accounting functions:
a) Disbursement function - from purchase order through cash payments for expenses. This
will include cash management and planning.
b) Collection function - This will include collection calls, cash collections and collection
forecasts;
c) Accounting function - NaviSite will maintain CBT's general ledger in accordance with
GAAP. In addition, NaviSite will prepare CBT's monthly financial statements, in accordance
with GAAP. These financial statements will be prepared within 30 days of month end; and
d) Planning and forecasting - NaviSite will provide 6 and 12 month financial planning and
analysis for the CBT data centers. This analysis will include recommendations for
performance improvement.
As part of providing support and Optional Services in the area of human resources, NaviSite
shall hire the CBT human resources professionals and shall provide to CBT all benefit and
human resources support for CBT and its employees.
2. Legal Support Services
NaviSite will provide a variety of legal support, advice and services both through its internal
and external counsel. Such services may include, litigation management, transaction planning
and document drafting. Contract administration for all vendor, lease and customer contracts
shall be performed by NaviSite as part of the Optional Services.
3. Discontinued Operations
In the event that CBT decides to discontinue or shut down certain data centers, NaviSite will
provide services to shutdown certain discontinued CBT data centers. Such services may
include: financial and accounting services, customer communication and customer migration,
vendor, and landlord negotiations, facilities services, human resources and legal support
structuring transactions with third parties.
Retained Rights: Each party will retain all right, title, and interest in and to its own
Pre‐Existing Intellectual Property irrespective of any disclosure of such Pre‐Existing
Intellectual Property to the other party, subject to any licenses granted herein.
Service provider shall maintain adequate insurance coverage and minimum coverage limits
for its business as required by any applicable law or regulation, including Workers’
Compensation insurance as required by any applicable law or regulation, or otherwise as
determined in its reasonable discretion. Service Providers lack of insurance coverage shall
limit any liability under this Contract.
MISCELLANEOUS
i. Assignment Provider shall not assign any rights of this Contract or any other written
instrument related to Services and/or Deliverables provided under this Contract, and no
assignment shall be binding without the prior written consent of Customer. Subject to the
foregoing, this Contract will be binding upon the Parties’ heirs, executors, successors and
assigns.
ii. Governing Law. The Parties shall make a good-faith effort to amicably settle by mutual
agreement any dispute that may arise between them under this Contract. The foregoing
requirement will not preclude either Party from seeking injunctive relief as it deems
necessary to protect its own interests. This Contract will be construed and enforced in
accordance with the laws of the State of [Sender.State], excluding its choice of law rules.
iii. Severability. The Parties recognize the uncertainty of the law with respect to certain
provisions of this Contract and expressly stipulate that this Contract will be construed in a
manner that renders its provisions valid and enforceable to the maximum extent possible
under applicable law. To the extent that any provisions of this Contract are determined by a
court of competent jurisdiction to be invalid or unenforceable, such provisions will be deleted
from this Contract or modified so as to make them enforceable and the validity and
enforceability of the remainder of such provisions and of this Contract will be unaffected.
iv. Independent Contractor. Nothing contained in this Contract shall create an employer and
employee relationship, a master and servant relationship, or a principal and agent relationship
between Service Provider and Customer. Customer and Service Provider agree that the
Provider is, and at all times during this Contract shall remain, an in dependent contractor.
v. Force Majeure. Neither Party shall be liable for any failure to perform under this Contract
when such failure is due to causes beyond that Party’s reasonable control, including, but not
limited to, acts of state or governmental authorities, acts of terrorism, natural catastrophe,
fire, storm, flood, earthquakes, accident, and prolonged shortage of energy. In the event of
such delay the date of delivery or time for completion will be extended by a period of time
reasonably necessary by both Service Provider and Customer. If the delay remains in effect
for a period in excess of thirty days, Customer may terminate this Contract immediately upon
written notice to Freelancer.
vi. Entire Contract. This document and all attached or incorporated documents contains the
entire agreement between the Parties and supersedes any previous understanding,
commitments or agreements, oral or written. Further, this Contract may not be modified,
changed, or otherwise altered in any respect except by a written agreement signed by both
Parties.
Signature
By providing signatures below both parties are accepting all terms and conditions listed
above as well as confirming all deliverables and services within said contract are true and
agreed upon.
Customer Date: