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)

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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 Doc| .s$lgmd by n»asu»4 W B y :[ By: VM Mom 4 w ¢ 0}. , S . (s 1 w u ~ . Prmted Name: G eor e D . s l es s man Q 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 Zh Date: 5/30/2012 q 2012

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