Mozilla Corporation v. IO Phoenix One LLC

Filing 1

COMPLAINT. Filing fee received: $ 400.00, receipt number 0970-12624153 filed by Mozilla Corporation. (Attachments: # 1 Exhibit, # 2 Exhibit, # 3 Exhibit, # 4 Exhibit, # 5 Civil Cover Sheet) (submitted by Michael Farrell)(KMG)

Case 2:16-at-99902 Document 76-3 (Court only)

Filed 02/11/16 Page 1 of 3

Exhibit C

Case 2:16-at-99902 Document 76-3 (Court only)

Filed 02/11/16 Page 2 of 3

DocuSign Envelope ID: 061 F3A09-1455-42CB-82AA-E48BBB1466EA

Amendment 12
Customer . MO ZILLA CO RPO RAT IO N

Change Order Number . QUO 09055 P5F6S9

This Amendment (this "Amendment") is effective as of the date of full execution of this Amendment between Mozilla Corporation
("Customer") and IO Phoenix One, LLC, a Delaware limited liability company ("Licensor")
. Customer and Licensor entered into that
certain License and Master Services Agreement dated December 7, 2009, as amended here by and by any prior amendments (collectively,
the "Agreement") . In consideration of the mutual promises and covenants herein contained, and for good and valid consideration, the
receipt and sufficiency of which are hereby acknowledged, Attachment A ofthe Agreement is hereby amended as follows:

1. Attachment A of the Agreement is hereby amended by adding the following:
Delete: Initial Billing Term:

60 Months

Add:

108 Months

Initial Billing Term:

Additional License Fees:

v
ADD.
Conditioned Power
Conditioned Power Active / Passive (NET)
Delivered to Customer Equipment Area 3

150.00 KW

$175_00/ KW

$26,250 .00

100 .00

$12 .00

$1,200 .00

Other Customer Area
rae
Custo m S t o g Space

($4,117 .50)

Discount

Installation Fees

Security Deposits .

$12,000 .00

$0.00

1. Availability date . The later of 07/01/2012 or thirty (30) days following full execution ofthis Amendment
.
2. Customer acknowledges and agrees that peak power demand in the Customer Equipment Area 3 shall not exceed 150
KW (the KW Amount )
. Customer shall pay Licensor the Installation Fees and one (1) month s License Fees upon execution ofthe Amendment
.
3
.00.
4. The Minimum Monthly Power Charge shall be three thousand seven hundred fifty dollars $3,750
5. Customer Equipment Area 3 to be deployed in one (1) dedicated full module
.
6. Customer acknowledges and agrees Conditioned Power delivery from power distribution unit( PDU )to Customer
Equipment Area and grounding are NOT INCLUDED, TO BE INSTALLED UNDER LICENSOR S MANAGEMENT
AT CUSTOMER S EXPENSE FOR ACTUAL COST PLUS TEN PERCENT (10 /)7. C ustomer acknowledges and agrees Customer intra Data Center communication cabling and Customer Equipment,
cabinets nd racking are NOT INCLUDED, TO BE INSTALLED BY CUSTOMER AT CUSTOMER s EXPENSE
.
a

Case 2:16-at-99902 Document 76-3 (Court only)

Filed 02/11/16 Page 3 of 3

DocuSign Envelope ID: 061F3A09-1455-42CB-82AA-E48BBB1466EA

2 . Section 3 .0 of the Agreement is hereby amended by adding the following to the end of Section 3

.0 as 3 .3 :

"If Customer receives Conditioned Power (NET) as set forth on Attachment A, Customer shall pay for all Conditioned Power used by
Customer as set f0M in this Section 3 .3. The cost to Customer of Conditioned Power for each month shall be the greater of the Minimum
Monthly Power Charge (as defined in Attachment A) or an amount determined by multiplying (i) the rate per kilowatt hour billed to
Licensor by the utility providing electricity to the Data Center during the month, times (ii) the number of kilowatt hours consumed by
Customer during the month . The rate per ldlowatt hour for any month shall be detemiined from the face of the utility's invoice by dividing
the number of kilowatt hours shown on the invoice with respect to the Data Center for the month by the total charges billed to the Data
Center by the utility for the month, or similar method as reasonably determined by Licensor in the event of changes in the utility's billing
method from time to time . If the utility later bills Licensor for additional amounts not reflected on die original invoice for any month
(whether due to error, retroactive rate adjustments or otherwise), Customer shall be responsible to Licensor for Customer's portion thereof
Customer acknowledges that the aggregate amount of power consumption billed by Licensor to its customers at the Data Center for
Conditioned Power each month generally will reflect a shortfall in comparison to the aggregate amount of power consumption billed to
Licensor by the utility with respect to such customers, whether due to factors such as line loss or othervvise
. Licensor reserves the right to
bill Customer for, and Customer agrees to pay its prorata share of, such shortfall as determined by Licensor from time to time in its
reasonable discretion . For purposes of this Section 3 .3, the term "month" shall refer to die period reflected on the invoice received from
the utility. "

All capitalized terms used in this Amendment and not otherwise expressly defined herein shall have the meanings ascribed
to such terms in the Agreement .
Except as expressly modified above, all terms and conditions of the Agreement remain in full force and effect and are
hereby ratified and affirmed .
IN WITNESS WHEREOF, the parties hereto have entered into this Amendment as ofthe date set forth below
IO PHOENIX ONE, LLC

MOZILLA CORPORATION

615 N. 48th Street
Phoenix, Arizona 85008

.

650 Castro Street Suite 300
Mountain View, Califomia 94041-2021
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By: VM Mom

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.
Prmted Name:

G eor e D . s l es s man
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Title: Manager, G`Ioba1 Datacenter operations

T itle: c E o
5/30/2012
Date:

_
Derek Moore
Prlnted Name:

q

Approved IO General Counsel-

2012
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Date:

5/30/2012
q

2012