Exhibit 10.10
[MidNet Logo]
MidNet (Canada), Inc.
000 - 0000 Xxxx Xxxxxxxx Xx. Xxxxxxxxx XX X0X 0X0
Phone 000.000.0000 Fax 000.000.0000
This Agreement, which includes and incorporates by reference the Terms and
Conditions of Service attached hereto (which are subject to change at any time
without prior written notice, at MidNet's sole discretion), sets forth the terms
and conditions under which the parties agree that MidNet will provide certain
services to Customer according to the specifications outlined below.
By signing the Location Order Form and/or using the Service, Customer accepts
the terms and conditions of this Agreement and agrees to pay MidNet for said
Service. Upon MidNet's acceptance of the order, MidNet installs or activates a
Network End Point and delivers to Customer a Service Activation Notice, thus
commencing the Acceptance Period that leads to the Service Activation Date,
which shall be the beginning of the Service Term. Orders based on the Location
Order Form are not binding upon MidNet until accepted by MidNet. MidNet may
invoice parts of an order separately. MidNet bills in advance for Service to be
provided during the upcoming month, except for charges which are dependent upon
usage of Service, which are billed in arrears. MidNet reserves the right to
examine the credit record of Customer and to require a security deposit as a
precondition to delivering or continuing the Service.
Starting on the Service Activation Date, Customer is responsible for all charges
attributable to Customer incurred for Service originating from or terminating at
this Network End Point, even if such charges incurred are the result of error,
omission, or fraudulent or unauthorized use of Service. Charges for Service will
be applied to the account identified by Customer on the Location Order Form or
during the connection setup. If Customer applies charges for Service to an
account of another MidNet customer (including but not limited to the recipient
of a file, the originating or terminating end of a connection, a third-party
service provider, or a project account) and the owner of that account disputes
these charges and/or refuses to pay these charges to MidNet, MidNet reserves the
right to invoice Customer for any such charges incurred for Service according to
the rate card in effect at the time the Service was performed, plus interest on
all amounts past due at the interest rate listed in the Terms and Conditions.
THIS AGREEMENT AND ANY SALES THEREUNDER SHALL BE DEEMED TO HAVE BEEN MADE IN THE
PROVINCE OF BRITISH COLUMBIA AND SHALL BE CONSTRUED AND INTERPRETED ACCORDING TO
THE LAWS OF THE PROVINCE OF BRITISH COLUMBIA AND THE APPLICABLE LAWS OF CANADA.
THE PARTIES HEREBY AGREE TO THE NON-EXCLUSIVE JURISDICTION OF THE COURTS OF THE
PROVINCE OF BRITISH COLUMBIA.
Customer Information: Account Information: Acct # To be
Assigned
Legal Name: Command Post & Transfer Corp. (*) New Account
DBA: Toybox Vancouver ( ) Existing Account
Address 1: Suite 500**
Address 2: 0000 Xxxxx Xxxxxx** Xxxxxxx Contact Information:
City: Vancouver**
Province: BC Name: **
Postal Code: X0X 0X0** Title: **
Phone: 000.000.0000** Phone: 000.000.0000
Fax: 000.000.0000** Fax: 000.000.0000
Email: **
Network End Point Information: ** Specify Floor and Suite: **
( ) Same as Customer address
Type: These premises are: **
( ) Customer premises
( ) MidNet co-location facility ( ) owned by Customer, or
( ) leased or rented until:
Name: [as above]
Address 1: [as above] If building or space is rented or
Address 2: [as above] leased:
City: [as above] ( ) A) Customer agrees to obtain
Province: [as above] written permission from landlord
Postal Code: [as above] to access and use building
Phone: [as above] entrance and riser facilities
Fax: [as above] for installing telecommunications
circuits and equipment, or;
( ) B) Customer authorizes MidNet to
obtain such permission from
landlord on behalf of Customer.
Site Contact For Installation: Other Service Location Information:
Name: ** --------------------------------------
Title: ** --------------------------------------
Phone: ** --------------------------------------
Fax: ** --------------------------------------
Email: ** --------------------------------------
** The confidential portion has been omitted pursuant to a request for
confidential treatment. The confidential portion has been filed separately with
the Securities and Exchange Commission.
Service Information (Verification Phase Only):
1. THE MIDDLE NETWORKSM COMMUNITY - Verification Phase, Vancouver Motion
Picture Industry
Customer desires to connect to the prospective subscriber(s) indicated
below:
**
2. SERVICE TERM: September 1, 2004 - November 30, 2004
The Service Term is: (*) A) Fixed and terminates at the end of the Service
Term, or;
( ) B) Automatically renews unless terminated by
either party giving written notice ninety (90)
days prior to the ending of the Service Term then
in effect.
3. THE MIDDLE NETWORKSM INSTALLATION & CONFIGURATION CHARGES US $0.00
4. THE MIDDLE NETWORKSM SUBSCRIPTION FEE - Verification Phase
Subscription fees during the verification phase range from US $500.00 per
month to US $3,000.00 per month for a minimum of three (3) months. **.
** US $500.00 per mo.
5. THE MIDDLE NETWORKSM USAGE FEES - Verification Phase
Maximum Data Traffic Volume - Ten (10) Terabytes per month. US $0.00 per
mo.
6. FEES AND CHARGES BEYOND THE VERIFICATION PHASE
Actual data traffic activity and consultation during the verification phase
will be used to establish the subscription fee, charges for Service, and
monthly minimum commitments, beyond the verification phase.
Underutilization charges and termination charges may apply pursuant to the
Terms and Conditions of this Agreement.
7. TAXES AND EXCHANGE RATES
Fees and charges will be calculated in US Dollars per MidNet's prevailing
rate card. Invoice amounts will be converted to Canadian Dollars utilizing
the Bank of Canada's published closing rate for the previous business day.
Fees and charges do not include applicable taxes. Any applicable taxes will
be calculated on the Canadian Dollar amount.
Customer Signature: Accepted by MidNet (Canada), Inc.:
I have read and I understand this Agreement, I agree to its Terms and
Conditions, and I am authorized to bind Customer.
Name: ** Name: Xxxx Xxxx
Title: ** Title: Chief Operating Officer
/s/ ** /s/ Xxxx Xxxx
Signature Signature
Dated for reference: July 27, 2004 Dated for reference: July 27, 2004
** The confidential portion has been omitted pursuant to a request for
confidential treatment. The confidential portion has been filed separately with
the Securities and Exchange Commission.
EXHIBIT 10.10
Terms and Conditions of Service
PLEASE READ THIS DOCUMENT CAREFULLY! IT CONTAINS VERY IMPORTANT INFORMATION
ABOUT YOUR RIGHTS AND OBLIGATIONS, AS WELL AS LIMITATIONS AND EXCLUSIONS THAT
MAY APPLY TO YOU. THIS DOCUMENT CONTAINS A DISPUTE RESOLUTION CLAUSE.
This Agreement contains the terms and conditions that apply to you ("Customer",
"your" or "you") on your purchase from "MidNet", "our" or "we", which is either,
as indicated on the Location Order Form: (A) MidNet Canada Inc., a Canadian
corporation; or (B) MidNet USA Inc., a Nevada corporation, for products and/or
services and support sold in Canada and/or the United States of America. By
accepting delivery of the products and/or the services and support described on
the invoice, Customer accepts and agrees to be bound by these terms and
conditions.
THESE TERMS AND CONDITIONS APPLY UNLESS THE CUSTOMER HAS SIGNED A SEPARATE
AGREEMENT WITH MIDNET, IN WHICH CASE THE SEPARATE AGREEMENT SHALL GOVERN.
These terms and conditions are subject to change without prior written notice at
any time, in MidNet's sole discretion.
1. Other Documents. Other than as specifically provided in any separate, formal
agreement between Customer and MidNet, these terms and conditions may NOT be
altered or amended by the use of any other document(s). Any attempt to alter
or amend this document or to enter an order for services and support that
are subject to altered terms and conditions will be null and void, unless
otherwise agreed to in a written agreement signed by both Customer and
MidNet.
2. Definitions. The following capitalized terms shall have the following
meaning when used in this Agreement:
2.1."Agreement" means this agreement between Customer and either (as indicated
on the Location Order Form): (A) MidNet Canada Inc., a Canadian corporation,
for products and/or services and support sold in Canada; or (B) MidNet USA
Inc., a Nevada corporation, for products and/or services and support sold in
the United States of America.
2.2."Service" means the ability to make and maintain a connection between two
or more Network End Points.
2.3."Network End Point" means the port or device through which the Network
connection can be made.
2.4."Network" means the telecommunications network provided by MidNet and/or
the telecommunications network whose configuration is: (A) controlled by
MidNet; or (B) controlled by MidNet software.
2.5."Service Request Form" means the application form which identifies the
location(s) where Customer wishes to obtain Service from MidNet, the type(s)
of network connection(s) desired at these locations, and the approximate
data volume and/or usage pattern Customer forecasts for these locations.
2.6."Location Order Form" means the document that Customer signs to enter into
a binding contract with MidNet for establishing or using a Network End Point
at a specific location. The Location Order Form incorporates the terms and
conditions of this Agreement by reference and specifies the type of network
services MidNet wishes to provide to Customer at this location, any
applicable recurring, nonrecurring, usage based and/or underutilization
charges for Service, any minimum commitments, the Service Term and early
termination fees, if applicable.
2.7."Effective Date" means the later of: (A) the date of reference indicated by
Customer on the Location Order Form; or (B) the date Customer's order is
accepted by MidNet.
2.8."Service Term" means the duration of time for which the Service is ordered,
as specified in the Location Order Form, and measured as starting on the
Service Activation Date.
2.9."Service Activation Notice" means the notice that MidNet delivers to
Customer advising Customer that the Network End Point has been installed or
has been activated and/or that the Service is ready to use, thus commencing
the Acceptance Period.
2.10. "Acceptance Period" means a period of forty-eight (48) hours that Customer
shall have upon receiving the Service Activation Notice, to confirm that the
Service has been installed in accordance with the Location Order Form and is
properly functioning and, for Customer's internal testing purposes. If a
statutory holiday falls within the forty-eight (48) hours Acceptance Period
at the Network End Point to which the Service Activation Notice applies, the
Acceptance Period shall be extended by twenty-four (24) hours for each of
these statutory holidays. Unless Customer delivers written notice to MidNet
within the Acceptance Period that the Service is not installed in accordance
with the Location Order Form or not functioning properly, billing shall
commence on the Service Activation Date.
2.11. "Service Activation Date" means the earliest occurrence of: (A) the date
upon which Customer acknowledges in writing that the Service has been
installed and is functioning properly; or (B) the date which is at the end
of the Acceptance Period; or (C) the date Customer begins using the Service.
2.12. "Confidential Information" means a disclosing party's proprietary,
nonpublic information, in whatever form and regardless of whether
specifically indicated as "confidential". It includes all information and
know-how received hereunder or that the other party has identified as being
proprietary and/or confidential or that, by the nature of the circumstances
surrounding the disclosure, should in good faith be treated as proprietary
and/or confidential. It also includes the terms of this Agreement and the
information provided in the Service Request Form and/or the Location Order
Form. It does not include information lawfully received from third parties
without confidentiality obligations to the disclosing party, information in
the public domain other than by act or omission of the receiving party,
information that is independently developed by the receiving party without
violation of this Agreement, or that the receiving party had available to it
in writing on a non-confidential basis before disclosure hereunder.
3. Quotes; Orders; Credit Approval; Security Deposits; Payment Terms; Interest.
MidNet uses the Confidential Information provided in the Service Request
Form and otherwise for preparing a quote for providing Service to Customer
at one or more Network End Points. Any quotations given by MidNet will be
valid for the period stated on the quotation. By signing the Location Order
Form and/or using the Service, Customer accepts the terms and conditions of
this Agreement and agrees to pay MidNet for said Service. Upon MidNet's
acceptance of the order, MidNet installs or activates a Network End Point
and delivers to Customer a Service Activation Notice, thus commencing the
Acceptance Period that leads to the Service Activation Date and the
beginning of the Service Term. Orders based on the Location Order Form are
not binding upon MidNet until accepted by MidNet. MidNet may invoice parts
of an order separately. MidNet bills in advance for Service to be provided
during the upcoming month, except for charges which are dependent upon usage
of Service, which are billed in arrears. Terms of payment are within
MidNet's sole discretion, and unless otherwise agreed to by MidNet in
writing, payment must be received by MidNet prior to MidNet's acceptance of
an order. Payment for products and services and support may be made by
credit card, wire transfer, or some other prearranged payment method unless
credit terms have been agreed to by MidNet. MidNet reserves the right to
examine the credit record of Customer and to require a security deposit as a
precondition to delivering or continuing the Service. If credit terms have
been agreed to by MidNet, invoices will be delivered monthly and are due and
payable within thirty (30) days after the date of the invoice. Customer
agrees to pay interest on all amounts past due at a rate of one and one half
percent (1.5%) per month (19.56% per year).
4. Charges for Service. Starting on the Service Activation Date, Customer is
responsible for all charges attributable to Customer incurred for Service
originating from or terminating at that Network End Point, even if such
charges incurred are the result of error, omission, or fraudulent or
unauthorized use of Service. Charges for Service will be applied to the
account identified by Customer on the Location Order Form or during the
connection setup. If Customer applies charges for Service to an account of
another MidNet customer (including but not limited to the recipient of a
file, the originating or terminating end of a connection, a third-party
service provider, or a project account) and the owner of that account
disputes these charges and/or refuses to pay these charges to MidNet, MidNet
reserves the right to invoice Customer for any such charges incurred for
Service according to the rate card in effect at the time the Service was
performed, plus interest on all amounts past due at the interest rate listed
in section 3 above.
5. Underutilization Charges. During any period of the Service Term in which
Customer's usage of the Service is less than any minimum commitment made by
Customer for that period, Customer will pay, in addition to all other
applicable charges, Customer's actual usage charges, plus an
underutilization charge (which Customer agrees is reasonable) equal to the
difference between Customer's actual usage charges and the minimum
commitment.
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6. Termination Charges. In the event that, prior to the end of the Service
Term, Customer terminates Service or in the event that the delivery of
Service is terminated due to a failure of Customer to comply with the terms
of this Agreement, Customer shall pay a termination charge that equals the
amount outstanding under the Service Term.
7. Taxes. Unless Customer provides MidNet with a valid and correct tax
exemption certificate applicable to the service location prior to MidNet's
acceptance of the order, Customer is responsible for goods and services tax,
sales and all other taxes associated with the order, however designated,
except taxes on MidNet's net income. If applicable, a separate charge for
taxes will be shown on the invoice.
8. Disputed Invoices. If Customer reasonably disputes any portion of a MidNet
invoice, Customer must pay the undisputed portion of the invoice and submit
a written claim for the disputed amount. All claims must be submitted to
MidNet within sixty (60) days of receipt of the invoice for those Services.
Customer waives the right to dispute any charges not disputed within the
time frame set forth above. In the event that the dispute is resolved in
favor of Midnet, Customer shall pay any unpaid amounts plus interest at the
rate referenced in section 3 above.
9. Regulatory and Legal Changes: In the event of any change in applicable law,
regulation, decision, rule or order that materially increases the costs or
other terms of delivery of Service, MidNet and Customer will negotiate
regarding the rates to be charged to Customer to reflect such increase in
cost and, in the event that the parties are unable to reach agreement
respecting new rates within 30 days after MidNet's delivery of written
notice requesting renegotiation, then: (A) MidNet may pass such increased
costs through to Customer; and (B) Customer may terminate the affected
Customer order(s) without termination liability by delivering written notice
of termination no later than thirty (30) days after the effective date of
the rate increase.
10. Equipment Supplied by MidNet as Instrument of Service. Where MidNet provides
on-premises equipment and such equipment is not subject to a separate,
written agreement for purchasing such equipment or is listed on an invoice
as being sold outright to Customer, such equipment shall be deemed to be an
instrument of Service for which the following conditions apply: Customer
agrees to retain original condition of equipment upon receipt and
installation on premises. Customer will also be responsible for providing
and maintaining, at its own expense, the level of power, heating and air
conditioning necessary to maintain the proper environment for the
MidNet-supplied equipment located on the Customer premises. In the event
Customer fails to do so, Customer shall reimburse MidNet for the actual and
reasonable cost of repairing or replacing any equipment damaged or destroyed
as a result of Customer's negligence. Customer shall not, and shall not
permit others to, rearrange, disconnect, remove, and attempt to repair, or
otherwise tamper with the MidNet-supplied equipment without prior written
consent from MidNet. Customer acknowledges herewith that Customer will not
receive any right or title to MidNet-supplied equipment other than the right
to use it in conjunction with accessing the Service. Customer acknowledges
that the equipment shall not be used for any other purpose. Customer shall
not take any action that causes the imposition of any lien or encumbrance on
the equipment. In no event will MidNet be liable to Customer or any other
person for interruption of Service or any other loss, cost or damage caused
or related to improper use or maintenance of the equipment by Customer or
third parties provided access to equipment in violation of this Agreement,
and Customer shall reimburse MidNet for any damages incurred as a result
thereof. Customer agrees (which agreement shall survive the expiration,
termination or cancellation of this Agreement) to allow MidNet to remove the
equipment from the Customer premises: (A) after termination, expiration or
cancellation of this Agreement; or (B) for repair, replacement or otherwise
as MidNet may determine is necessary or desirable, but MidNet will use
reasonable efforts to minimize disruptions to the Service caused thereby; or
(C) for non-payment of amounts due to MidNet.
11. Title; Risk of Loss; Third-Party Products. Title to equipment purchased from
MidNet (and not provided by MidNet as an instrument of Service) passes from
MidNet to Customer on shipment from MidNet's facility or the facility of
MidNet's supplier, if shipped from there. Loss or damage that occurs during
shipping is MidNet's responsibility. Title to software will remain with the
applicable licensor(s). Ship dates are estimates only. MidNet is not liable
for delays in shipment or failure to ship by the estimated ship date. Any
warranty and technical support provided on third-party products purchased
through MidNet are provided by the original manufacturer and not by MidNet.
These products may be returned only in accordance with the return policy in
effect on the date of invoice. The warranties and technical support may vary
from product to product.
12. Customer Provided Equipment. MidNet shall not be responsible for the
operation, maintenance or security of any Customer-provided equipment.
Customer is solely responsible for the compliance of Customer-provided
equipment and its operation with any applicable code, law, regulation or
tariff. MidNet undertakes no obligations and accepts no liability for the
configuration, management, performance or any other issue relating to
Customer-provided equipment used for access to or the exchange of traffic in
connection with the Service and/or for Customer providing services to others
via the Network.
13. Access to Customer Premises and/or Network End Points. Customer shall allow
MidNet and its subcontractors and their respective employees reasonable
physical access to the Customer premises and/or premises where such Network
End Points are located, including but not limited to building floors and
risers as determined by MidNet for the installation, inspection, scheduled
or emergency maintenance, replacement or removal of equipment relating to
the Service. Customer shall provide MidNet with the appropriate contact
information needed for physical access to the premises and shall, if and
where necessary, authorize MidNet in writing to obtain permission from, and
coordinate access with, third parties such as landlords and/or other tenants
in buildings where access to transmission lines and/or Network End Points
are installed, or are to be installed, in space owned or controlled by such
third parties. MidNet shall notify Customer two (2) days in advance of any
regularly scheduled maintenance that will require physical access to the
Customer premises. Customer will provide a safe place to work and comply
with all laws and regulations regarding the working conditions on the
Customer premises.
14. Software and Documentation. All rights, including but not limited to
copyright, patent, trademark and other intellectual property rights, in any
software and/or documentation provided by MidNet in connection with any
Service shall remain the exclusive property of MidNet or its licensor(s).
MidNet grants to Customer a non-exclusive license to use such software and
documentation solely for Customer's internal business purposes in accordance
with the terms of this Agreement. No portion of such software or
documentation shall be copied, decompiled, downloaded, translated, or
delivered to a third party without MidNet's prior written consent, except
that Customer shall be permitted to copy MidNet-provided software for
Customer's internal emergency use.
15. System Security. Customer may not use the Network or Network End Point(s) to
attempt in any way to circumvent user authentication or security of any
host, network, or account. This includes, but is not limited to, accessing
any data not intended for Customer, logging into any server or account
Customer is not expressly authorized to access, password cracking, probing
the security of the Network or other networks and/or servers connected to
the Network in search of weakness, or violation of any other organization's
security policy. Customer may not attempt to interfere or deny service to
any user, host, or network. This includes, but is not limited to, flooding,
mail bombing, or other deliberate attempts to overload or crash a host or
network. MidNet will cooperate fully with investigations of violations of
systems or network security at other sites, including cooperating with law
enforcement authorities in the investigation of suspected criminal
violations. Users who violate system or network security may incur criminal
or civil liability.
16. Password Protection. MidNet will provide Customer with administrative
username(s) and password(s) for Customer account and/or the ability to
establish and manage end user accounts. Customer and its end users are
entirely responsible for maintaining the confidentiality of their
password(s) and account(s). Furthermore, Customer is entirely responsible
for any and all activities that occur under the Customer account or end user
accounts managed by Customer. Customer agrees to notify MidNet immediately
of any unauthorized use of Customer account, end user accounts managed by
Customer, or any other breach of security. MidNet will not be liable for any
loss that Customer may incur as a result of someone else using Customer
password or account, either with or without Customer's knowledge. Customer
may be held liable for losses incurred by MidNet or another party due to
someone else using Customer account or password, or password or account of
an end user account managed by Customer. Customer and its end user(s) may
not use anyone else's account at any time, without the permission of the
account holder. Customer acknowledges and agrees that certain services may
provide password-restricted access to Customer information such as names and
certain terms of Customer contracts. By using the Service and accessing
information resources provided by MidNet relating to such Service, Customer
consents to MidNet's display of such information via the Service or Network
and accepts all risks of unauthorized access to such information.
17. Representations and Warranties. Each party warrants that by entering into
this Agreement the party will not violate, conflict with or result in a
material default under any other contract, agreement, indenture, decree,
judgment, undertaking, conveyance, lien or encumbrance to which the party is
a party or by which it or any of its property is or may become subject or
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bound. Each party shall not grant any rights under any future agreement, nor
will it permit or suffer any lien, obligation or encumbrances that will
conflict with the full enjoyment of either party of its rights under this
Agreement. Each party further represents and warrants that it has, and
during the Term will have all necessary rights, licenses, permits,
governmental authorizations and the like to carry out its obligations under
this Agreement; and that it is in compliance with, and during the Term will
continue to comply with, all material governmental laws, regulations, orders
and the like, applicable to the Service contemplated by this Agreement and
services rendered or access to information sources, resources or services
which may be provided or be available from other service providers
participating in or connected to the Network. THE FOREGOING REPRESENTATIONS
AND WARRANTIES ARE IN LIEU OF ALL OTHER WARRANTIES, EXPRESS, IMPLIED, ORAL
OR WRITTEN, INCLUDING, BUT NOT LIMITED TO ANY IMPLIED WARRANTY
MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE OR ACCURACY OR USE.
18. Indemnification. Each party shall indemnify and hold harmless the other
party, its directors, officers, employees, and agents, successors, and
assigns, from all damages, costs, expenses and liabilities, including
reasonable attorney's fees and disbursements, sustained in any action
commenced by any third party and arising in connection with the indemnifying
party's performance of its obligations and duties under this Agreement.
MidNet will indemnify, defend, and hold harmless Customer, its directors,
officer, employees, agents, subsidiaries and affiliates, harmless from any
loss, damage, liability or expense on account of any claim(s) and shall
defend any suit and dispose of any claim(s) or other proceedings based on an
allegation that use of the Service, excluding any data transmitted by
Customer between or among Network End Points, infringes any United States or
foreign patent or other intellectual property right.
Customer will indemnify, defend, and hold harmless MidNet, its officers,
directors, employees, affiliates, and agents from any and all losses,
claims, damages, expenses (including attorneys' fees and expert witness
fees), other liabilities, and causes of action of every nature whatsoever
arising directly or indirectly in connection with: (i) the negligent acts,
omissions or intentional wrongdoing of Customer; (ii) the violation by
Customer of any applicable laws, ordinances, regulations, or rules in
connection with the offering of its services; and (iii) a breach of this
Agreement.
The indemnified party shall promptly notify the other party of any such
suit or claim.
19. Limitation of Liability. MIDNET (INCLUDING MIDNET'S PARENTS, AFFILIATES,
OFFICERS. DIRECTORS, EMPLOYEES OR AGENTS) DOES NOT ACCEPT LIABILITY BEYOND
THE REMEDIES SET FORTH HEREIN, INCLUDING ANY LIABILITY FOR PRODUCTS AND
SERVICES NOT BEING AVAILABLE FOR USE OR LOST OR CORRUPTED DATA OR SOFTWARE.
MIDNET WILL NOT BE LIABLE FOR LOST PROFITS, LOSS OF BUSINESS, OR OTHER
INCIDENTAL, INDIRECT, CONSEQUENTIAL, SPECIAL OR PUNITIVE DAMAGES, EVEN IF
ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, OR FOR ANY CLAIM BY ANY THIRD
PARTY EXCEPT AS EXPRESSLY PROVIDED HEREIN.
MIDNET SHALL NOT, BY REASON OF THE DISCONTINUATION OR MODIFICATION OF
HARDWARE OR SOFTWARE, OR THE SUSPENSION, TERMINATION OR NON-RENEWAL OF THIS
AGREEMENT OR THE DISCONTINUATION OF SERVICES OR TERMINATION OR NON-RENEWAL
OF AN AGREEMENT BETWEEN MIDNET AND ONE OF ITS CO-LOCATION OR BANDWIDTH
PROVIDERS, BE LIABLE TO CUSTOMER FOR COMPENSATION, REIMBURSEMENT OR DAMAGES
OF ANY KIND, INCLUDING WITHOUT LIMITATION THOSE ON ACCOUNT OF THE LOSS OF
PROSPECTIVE PROFITS, OR ON ACCOUNT OF EXPENDITURES, INVESTMENTS OR
COMMITMENTS MADE IN CONNECTION WITH THE ESTABLISHMENT, DEVELOPMENT OR
MAINTENANCE OF CUSTOMER'S BUSINESS.
CUSTOMER AGREES THAT FOR ANY LIABILITY RELATED TO THE PURCHASE OF PRODUCTS
OR SERVICES, MIDNET IS NOT LIABLE OR RESPONSIBLE FOR ANY AMOUNT OF DAMAGES
ABOVE THE MAXIMUM DOLLAR AMOUNT PAID BY CUSTOMER FOR THE PURCHASE OF
PRODUCTS AND/OR SERVICES UNDER THIS AGREEMENT FOR ANY BILLING PERIOD.
THE FOREGOING LIMITATIONS APPLY REGARDLESS OF THE CAUSE OR CIRCUMSTANCES
GIVING RISE TO SUCH LOSS, DAMAGE OR LIABILITY, EVEN IF SUCH LOSS, DAMAGE OR
LIABILITY IS BASED ON NEGLIGENCE OR OTHER TORTS OR BREACH OF CONTRACT
(INCLUDING FUNDAMENTAL BREACH OR BREACH OF A FUNDAMENTAL TERM).
NEITHER MIDNET NOR CUSTOMER MAY INSTITUTE ANY ACTION IN ANY FORM ARISING OUT
OF THIS AGREEMENT MORE THAN EIGHTEEN (18) MONTHS AFTER THE CAUSE OF ACTION
HAS ARISEN, OR IN THE CASE OF NONPAYMENT, MORE THAN EIGHTEEN (18) MONTHS
FROM THE DATE OF LAST PAYMENT.
SOME STATES OR PROVINCES DO NOT ALLOW THE EXCLUSION OF LIMITATION OF (i)
INCIDENTAL OR CONSEQUENTIAL DAMAGES OR (ii) IMPLIED WARRANTIES OR
CONDITIONS, SO THE ABOVE EXCLUSIONS MAY NOT APPLY TO YOU.
20. Products and Services. MidNet continually upgrades and revises its products
and service offerings to provide MidNet customers with new choices. MidNet
may revise and discontinue products and services at any time without prior
notice to customers. MidNet will ship products and deliver services that
have the functionality and performance of the products ordered, but changes
between what is shipped or delivered and what is described in a
specification sheet or catalogue are possible. The parts, assemblies and
software used in building MidNet products and services are selected from new
and equivalent-to-new parts and assemblies in accordance with industry
practices. Spare parts may be new or reconditioned. The quoted MidNet SKU
numbers for MidNet-branded products are of the quantity specified by MidNet
and conform in all material respects with the MidNet product specifications
current on the date such products were shipped.
21. Dispute Resolution.
A. Acknowledgments. Customer acknowledges that MidNet possesses valuable
confidential and proprietary information, including trade-marks and
business practices, that would be damaging to MidNet if revealed in
open court. The parties further acknowledge and agree that it is
preferable to resolve all disputes between them confidentially,
individually, and in an expeditious and inexpensive manner The parties
accordingly acknowledge and agree that private dispute resolution is
preferable to court actions.
B. Good Faith Negotiation. Before commencing any arbitration in the
manner set out in Subsection 21(C) below, the parties shall first
attempt to resolve any dispute or differences between them by way of
good faith negotiation. The good faith negotiation shall commence by
each party communicating their position regarding the complaint,
claim, dispute, or controversy to the other party, and how the parties
should resolve the dispute. The parties shall then make good faith
efforts to negotiate a resolution of the claim, dispute, or
controversy. Neither party shall commence any arbitral proceedings
unless and until the good faith negotiation fails.
C. Arbitration. ANY CLAIM, DISPUTE, OR CONTROVERSY (WHETHER IN CONTRACT,
TORT, OR OTHERWISE, WHETHER PREEXISTING, PRESENT OR FUTURE, AND
INCLUDING STATUTORY, COMMON LAW, INTENTIONAL TORT AND EQUITABLE CLAIMS
CAPABLE IN LAW OF BEING SUBMITTED TO BINDING ARBITRATION) AGAINST
MIDNET, its agents, employees, officers, directors, successors,
assigns or affiliates (collectively for purposes of this paragraph,
"MidNet") arising from or relating to this Agreement, its
interpretation, or the breach, termination or validity thereof, the
relationships between the parties, whether pre-existing, present or
future, (including, to the full extent permitted by applicable law,
relationships with third parties who are not signatories to this
Agreement), MidNet's advertising, or any related purchase SHALL BE
RESOLVED EXCLUSIVELY AND FINALLY BY BINDING ARBITRATION ADMINISTERED
BY THE NATIONAL ARBITRATION FORUM ("NAF") under its Code of Procedure
and any specific procedures for the resolution of small claims and/or
consumer disputes then in effect (available via the Internet at
xxxx://xxx.xxx-xxxxx.xxx, or via telephone at 0-000-000-0000). The
arbitration will be limited solely to the dispute or controversy
between Customer and MidNet. Any award of the arbitrator(s) shall be
final and binding on each of the parties, and may be entered as a
judgment in any court of competent jurisdiction. Information may be
obtained and claims may be filed with the NAF at X.X. Xxx 00000,
Xxxxxxxxxxx, XX 00000, or by e-mail at xxxx@xxx-xxxxx.xxx, or by
online filing at xxxx://xxx.xxx-xxxxx.xxx.
D. Injunctive Relief and Provisional Relief in Aid of Arbitration.
Notwithstanding the provisions in this section 21 or anywhere else in
this Agreement, MidNet shall have the right to seek and obtain any
provisional or interim relief from any court of competent jurisdiction
to protect its trade-xxxx or property rights or to preserve the status
quo pending good faith negotiation and/or arbitration.
22. Applicable Law. Customer agrees to comply with all applicable laws and
regulations of the various jurisdictions in which MidNet makes, as
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indicated on the Location Order Form(s), Network End Points available to
Customer.
23. Exports. The Customer acknowledges that the products and/or Service licensed
or sold hereunder are subject to, and Customer agrees to comply with, the
export control laws and regulations of Canada and the United States.
24. General Service and Support. MidNet will provide general service and
technical support to Customer, in accordance with the then-current service
and technical support policies and conditions in effect. For end-user
Customers, MidNet promises that its support people will attempt to handle
over the telephone any problem involving MidNet-branded products and/or
services. However, MidNet's support people may not be able to understand or
resolve any given problem. Service offerings may vary from product to
product. If Customer purchased optional services and support, MidNet and/or
a third-party service provider will provide the optional service and support
to Customer in accordance with the then-current terms and conditions in the
optional service contract between MidNet and/or the third-party service
provider and Customer. MidNet and/or the third-party service provider may,
at their discretion, revise their general and optional service and support
programs and the terms and conditions that govern them. The optional
services and support programs and their terms and conditions in place at the
time of purchase will apply to Customer's purchase. MidNet has no obligation
to provide service or support until MidNet has received full payment for the
product or service/support contract for which service or support is
requested.
25. Term. This Agreement shall be effective as of the Effective Date. The
initial term of this Agreement shall be the Service Term indicated on the
Location Order Form. The Service Term shall renew as indicated on the
Location Order Form.
26. Termination. Service Terms that automatically renew can be terminated by
either party giving notice as indicated on the Location Order Form, in which
case this Agreement terminates on the date that is at the end of the Service
Term then in effect.
A. Termination by MidNet. Notwithstanding any minimum agreed term, MidNet
may terminate this Agreement: (i) upon a failure by Customer to pay
invoices when due, which failure is not cured after notice to Customer
and a continued failure to pay such invoices for a period of thirty
(30) days following such notice; (ii) upon any material breach (other
than nonpayment of amounts owed), which such material breach is not
cured after notice to Customer and a continued failure to cure such
breach sixty (60) days following such notice; or (iii) immediately
upon notice to Customer in case of a breach by Customer of section 28
(Confidentiality) of this Agreement.
B. Termination by MidNet in Particular Circumstances. MidNet may
terminate this Agreement immediately without liability upon notice to
Customer if Customer (i) terminates, winds up, liquidates, or suspends
its business (whether voluntarily or otherwise); (ii) becomes subject
to any bankruptcy or insolvency proceeding under federal, state or
provincial law; (iii) becomes insolvent or becomes subject to direct
control by a trustee, receiver, or similar authority; (iv) if Customer
violates any law, rule, regulation or policy of any government
authority related to Service; (v) if Customer makes a material
misrepresentation to MidNet in connection with the ordering or
delivery of Service; (vi) if Customer engages in any fraudulent use of
Service; (vii) if Customer interferes with or disrupts or attempts to
interfere with or disrupt the Network or Service or servers or
networks connected to the Network, or disobeying any requirements,
procedures, policies or regulations of networks connected to the
Service or Network, or accesses or attempts to access password
protected secure or non-public areas of any servers or networks
connected to the Service or Network; or (viii) if a court or other
government authority prohibits MidNet from furnishing the Service.
C. Effect of Early Termination of Agreement. Upon early termination or
expiration of this Agreement: (i) MidNet immediately shall cease
providing the Service; (ii) all outstanding unpaid charges will become
immediately due and payable; (iii) Customer shall not be entitled to
any refund of monies paid hereunder, but nothing in this section shall
affect Customer's right to claim damages directly resulting from
MidNet's material breach, subject to all of the provisions of this
Agreement; (iv) each party will promptly return to the other party any
Confidential Information of the other party in its possession or
control.
The provisions of sections 17, 18, 19, 28 and 36 expressly continue and
survive such termination, as shall any other provision hereof that by its
terms is intended to survive and have effect after termination.
27. Notices and Requests. All notices in connection with this Agreement shall be
deemed given on the day they are sent by air express courier, charges
prepaid, to the contact person indicated on the Service Order Form.
28. Confidentiality. Each party will disclose the other's Confidential
Information only to such of its employees and contractors as is reasonably
necessary in the performance of this Agreement. Each party will notify the
other of unauthorized use, disclosure, theft, or other loss of Confidential
Information promptly upon learning of any of the foregoing. Notwithstanding
the foregoing, either party may disclose Confidential Information as
required by governmental or judicial order, provided it gives the other
party prompt written notice before such disclosure and complies with any
protective order (or equivalent) imposed on such disclosure. In addition,
either party may disclose Confidential Information in an action to enforce
the terms of or determine the parties' rights under this Agreement. This
provision shall survive termination of the Agreement and remain in force for
a period of 3 years thereafter.
29. Publicity. Neither party shall have the right to use the other party's or
its affiliates' trade xxxx, service xxxx, trade name, insignia, symbol,
identification and/or logotype or to otherwise refer to the other party in
any marketing, promotional or advertising materials or activities unless
mutually agreed to. Neither party shall issue any publication or press
release relating to any contractual relationship between MidNet and
Customer, except as may be required by law or as agreed to between the
parties in writing.
30. Independent Contractors. The parties shall have the status of independent
contractors, and nothing in this Agreement shall be deemed to place the
parties in the relationship of employer-employee, principal-agent, or
partners or joint venturers. Any transactions between or among MidNet
customers shall be deemed to be transactions between or among independently
operating third parties. Customer understands and agrees that MidNet's only
involvement in such a transaction is that of a subcontractor for the purpose
of making and maintaining a connection between and among these parties so
that these parties can exchange or access information or data.
31. Severability. If any paragraph or clause of this Agreement shall be held to
be invalid or unenforceable by any body or entity of competent jurisdiction,
then the remainder of the Agreement shall remain in full force and effect
and the parties shall promptly negotiate a replacement provision or agree
that no replacement is necessary.
32. Non-Waiver. If either party fails, at any time, to enforce any right or
remedy available to it under this Agreement, that failure shall not be
construed to be a waiver of such party's right to enforce each and every
provision of this Agreement.
33. Headings. The section headings used herein are for convenience of reference
only and do not form a part of these terms and conditions, and no
construction or inference shall be derived therefrom. The headings and
captions of the various sections of this Agreement are included solely for
convenience and shall not be deemed to be a part of this Agreement or
considered in construing the terms and conditions hereof.
34. Language. This Agreement has been written in the English language and, in
the event of any conflict or inconsistency between the English-language
version and any translation hereof the English language version shall
prevail.
35. Force Majeure. MidNet shall not be liable for any delay or failure in
performance caused by circumstances beyond its reasonable control.
36. Governing Law. THIS AGREEMENT AND ANY SALES THEREUNDER SHALL BE DEEMED TO
HAVE BEEN MADE EITHER (AS INDICATED ON THE LOCATION ORDER FORM): (A) IN THE
PROVINCE OF BRITISH COLUMBIA FOR CUSTOMER ORDER FORMS PERTAINING TO
ADDRESSES IN CANADA, IN WHICH CASE THIS AGREEMENT SHALL BE CONSTRUED AND
INTERPRETED ACCORDING TO THE LAWS OF THE PROVINCE OF BRITISH COLUMBIA AND
THE APPLICABLE LAWS OF CANADA FOR SERVICE SOLD AND/OR DELIVERED IN CANADA;
OR (B) IN THE STATE OF NEVADA FOR CUSTOMER ORDER FORMS PERTAINING TO
ADDRESSES IN THE UNITED STATES OF AMERICA, IN WHICH CASE THIS AGREEMENT
SHALL BE CONSTRUED AND INTERPRETED ACCORDING TO THE LAWS OF THE STATE OF
NEVADA AND THE APPLICABLE LAWS OF UNITED STATES OF AMERICA FOR SERVICE SOLD
AND/OR DELIVERED IN THE UNITED STATES OF AMERICA. THE PARTIES HEREBY AGREE
TO THE NON-EXCLUSIVE JURISDICTION OF THE COURTS OF EITHER: (A) THE PROVINCE
OF BRITISH COLUMBIA; OR (B) THE STATE OF NEVADA, AS INDICATED ON THE
LOCATION ORDER FORM.
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