1
EXHIBIT 10.4
AFFINITY MARKETING AGREEMENT
BETWEEN
GTE INTELLIGENT NETWORK SERVICES INCORPORATED
D/B/A GTE INTERNETWORKING
AND
AFFILIATED NETWORKS INCORPORATED
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TABLE OF CONTENTS
ARTICLE I- DEFINITIONS ...................................... 3
ARTICLE II- SERVICE ......................................... 4
ARTICLE III- PRICES ......................................... 4
ARTICLE IV- BILLING AND PAYMENT ............................. 5
ARTICLE V- AFFINITY PROGRAM ................................. 5
ARTICLE VI- SUPPORT OBLIGATIONS ............................. 5
ARTICLE VII- LIMITATION OF LIABILITY AND INDEMNIFICATION .... 6
ARTICLE VIII- FORCE MAJEURE ................................. 8
ARTICLE IX- PROPRIETARY INFORMATION ......................... 9
ARTICLE X- TERM AND TERMINATION ............................. 11
ARTICLE XI- MISCELLANEOUS ................................... 12
SERVICE ATTACHMENT 1 - INTERNET DIAL-UP SERVICES ............ 16
EXHIBIT A - SUBSCRIBER AGREEMENTS
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AFFINITY MARKETING AGREEMENT
THIS AFFINITY MARKETING AGREEMENT (this "Agreement") is entered into
between GTE Intelligent Network Services Incorporated d/b/a GTE Internetworking,
a Delaware corporation, with offices located at 0000 XxxXxxxxx Xxxxxxxxx, Xxxxx
000, Xxxxxx, Xxxxx 00000, ("GTE") and Affiliated Network Incorporated with
offices at 0000 Xxxxx Xxxxxxxx Xxxxx, Xxxxx 000, Xxxxxxx Xxxxx, Xxxxxxx 00000
("Affiliated Networks"). (GTE and Affiliated Networks being sometimes referred
to collectively as the "Parties" and individually as a "Party").
WHEREAS, GTE is an Internet Service Provider ("ISP") that offers
Internet access, web hosting and other Internet-related services, the sale of
which benefit from discussions and other contacts between the potential customer
and a knowledgeable marketing channel;
WHEREAS, Affiliated Networks desires to market GTE's services to
Merchants for the establishment and maintenance of Web Sites and Stores;
WHEREAS, GTE wishes to support such endeavors, Affiliated Networks
shall market and promote, on a non-exclusive basis, the GTE services subject to
the terms and conditions contained herein.
NOW THEREFORE, in consideration of the mutual promises set forth below,
the Parties hereby agree as follows:
ARTICLE I - DEFINITIONS
For the purposes of this Agreement, the following definitions shall apply:
I.1 "Customer" means an individual or entity that incurs usage charges for the
Service for its own use or on behalf of a third party User.
I.2 "User" a Customer that uses the Service or an individual or entity whose
Service usage charges are incurred by a third party Customer.
I.3 "Service" means Internet services provided by GTE, as more specifically
described in the attachments hereto and any other subsequent Attachments or
Exhibits that may be added from time to time and made a part hereof.
I.4 "Merchant" mean an individual or entity that is enrolled as a Merchant of
Affiliated Networks at any point in time according to the terms of this
Agreement.
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I.5 "Subscriber" means a Merchant that becomes a customer or User of the
Services.
ARTICLE II - SERVICE
II.1 Purchase of Service. Affiliated Networks and/or its Merchants shall have
the right to purchase from GTE the Services set forth in the Exhibits and
Attachments hereto in accordance with the terms and conditions of this
Agreement.
II.2 Provision of Service by GTE. GTE shall provide the Service to Affiliated
Networks and/or its Merchants substantially in accordance with the
specifications set forth in the Exhibits hereto and subject to the terms and
conditions of this Agreement and the Service Attachments listed below (the
"Service Attachments"). The provision of the Services is further subject to and
conditioned upon the execution by the Customer of separate agreements covering
each of the Services identified below, which are substantially in the form and
attached hereto as Exhibit "A".
SERVICE ATTACHMENTS
Dialup Services Attachment 1
II.3 Additional Services. If, during the term of this Agreement, Affiliated
Networks desires to purchase from GTE, and GTE desires to provide to Affiliated
Networks, additional services, the parties may make such additional services
part of this Agreement by written amendment to this Agreement incorporating the
additional services. Upon the effective date of the amendment, the additional
services shall be deemed to be a part of the Service and the additional service
attachments shall be deemed to be Service Attachments to this Agreement to the
same extent as if they were originally part of this Agreement.
II.4 No Resale. Affiliated Networks shall not resell the Service. The Service
may only be used by Affiliated Networks and its Merchants who are subject to the
applicable agreements set forth in Exhibit "A".
ARTICLE III - PRICES
Affiliated Networks' Merchants shall pay the charges set forth on the Service
Attachments and any other subsequent Attachments or Exhibits that may be
subsequently agreed in writing between the Parties. GTE may increase prices for
subsequent terms of the Agreement by giving notice to Affiliated Networks'
Merchants prior to thirty (30) days before the commencement of the subsequent
term pursuant to Art. X.1. below.
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ARTICLE IV - BILLING AND PAYMENT
Billing Cutoff. GTE shall xxxx Merchants for all applicable charges on a monthly
basis on a personal credit card or, if they are GTE local telephone Customers,
on their monthly telephone xxxx.
ARTICLE V - AFFINITY PROGRAM
V.1 Basic Program. GTE agrees to provide Affiliated Networks and its Merchants
Internet access when Affiliated Networks refers a Merchant that makes a
Qualifying Purchase of any of the services noted in Service Attachment 1 or any
subsequent amendment thereto.
V.2 "Qualified Purchase" means a purchase that meets the following criteria: (a)
the purchaser is a Merchant; (b) the purchaser has not purchased the same
Service from GTE within the preceding one year; (c) the purchaser has remained a
GTE customer in good standing long enough to pay for three full months of the
Service in question.
V.3 Referral Fee. GTE agrees to pay Affiliated Networks a one-time referral fee
of $10 for each Qualified Purchase. No referral fee will be paid to Affiliated
Networks until a minimum of 1500 active accounts is established. Once the
minimum is surpassed GTE shall pay Affiliated Networks every thirty(30) days,
during the term of this Agreement. Payment will be made to Affiliated Networks
within thirty (30)-days of the end of each month, beginning ninety (90) days
from the execution date of this Agreement.
ARTICLE VI - SUPPORT OBLIGATIONS
VI.1 Program Administrative Support. Affiliated Networks agrees to provide
single first point of contact for administration of this Agreement. Affiliated
Networks and its designee shall cooperate with GTE in the performance and
delivery of the Service hereunder.
VI.2 Communications and Promotions. Throughout the term hereof, Affiliated
Networks agrees to provide Merchant communications and promotions support that
will help Merchants become aware of the Service.
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VI.3 Minimum Terms and Conditions. Affiliated Networks acknowledges and accepts
that its users of the Service will have terms substantially similar to the terms
and conditions identified on Exhibit "A" imposed upon its end users. In
addition, Affiliated Networks agrees to abide by the terms and conditions
contained on Exhibit "A" that are not inconsistent with the terms and conditions
of this Agreement, which are hereby incorporated by reference. Affiliated
Networks acknowledges that the requirements contained on Exhibit "A" may be
modified from time to time by GTE in its sole discretion.
VI.4 Registration. Affiliated Networks and its Merchants may register for
Services by accessing GTE's online registration service via the Access Software.
GTE will provide 1,000 registration CDs to Affiliated Networks to handle this
type of registration. Affiliated Networks will be solely responsible for
distributing the registration CDs to the Merchants.
VI.5 Marketing Materials. Affiliated Networks shall incur the costs of any
marketing materials (both production and printing costs) used to distribute the
software, including but not limited to any collateral, direct mail pieces, sales
training sessions and sales kits. GTE will have the right of final approval on
any marketing materials that include the GTE logo or mention the software, such
approval not be unreasonably withheld.
ARTICLE VII - LIMITATION OF LIABILITY AND INDEMNIFICATION
VII.1 LIMITATION OF LIABILITY. EACH PARTY'S LIABILITY TO THE OTHER (AS DISTINCT
FROM A PARTY'S OBLIGATION TO PAY FOR THE SERVICE PROVIDED PURSUANT TO THIS
AGREEMENT) FOR ACTUAL PROVEN DAMAGES ARISING FROM ANY LOSS, COST, CLAIM, INJURY,
LIABILITY OR EXPENSE RELATING TO OR ARISING OUT OF ANY ACT OR OMISSION IN ITS
PERFORMANCE OF THIS AGREEMENT (NOT INVOLVING WANTON OR WILLFUL MISCONDUCT)
INCLUDING BUT NOT LIMITED TO ANY FAILURE OF OR DISRUPTION OF SERVICE, SHALL BE
LIMITED TO AN AMOUNT EQUIVALENT TO CHARGES PAYABLE BY AFFILIATED NETWORKS UNDER
THIS AGREEMENT FOR THE SERVICE DURING THE PERIOD SUCH DAMAGES OCCUR. SUCH
DAMAGES SHALL NOT INCLUDE ANY BUSINESS OR REVENUE WHICH AFFILIATED NETWORKS
CLAIMS WOULD HAVE BEEN DUE TO IT BUT FOR GTE'S ACT OR OMISSION. NEITHER PARTY
SHALL BE LIABLE TO THE OTHER FOR INDIRECT, SPECIAL OR CONSEQUENTIAL DAMAGES,
INCLUDING BUT NOT LIMITED TO LOSS OF PROFITS, LOSS OF BUSINESS OR BUSINESS
OPPORTUNITY, EVEN IF IT HAS BEEN ADVISED OF THE POSSIBILITY OF THE SAME.
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VII.2 Indemnification Subject to the limitations contained in this Agreement,
each Party ("Indemnifying Party") shall indemnify and hold harmless the other
Party ("Indemnified Party") from and against any loss, cost, claim, liability,
damage or expense (including reasonable attorneys' fees) to third parties,
relating to or arising out of negligence or wanton or willful misconduct by the
Indemnifying Party, its employees, Merchants or contractors in the performance
of this Agreement. In addition, the Indemnifying Party shall, to the extent of
its negligence or wanton or willful misconduct, defend any action or suit
brought by a third party against the Indemnified Party for any loss, cost,
claim, liability, damage or expense relating to or arising out of negligence or
wanton or willful misconduct by the Indemnifying Party, its employees, Merchants
or contractors, in the performance of this Agreement. The Indemnified Party
shall notify the Indemnifying Party promptly, in writing, of any written claims,
lawsuits or demand by third parties for which the Indemnified Party alleges that
the Indemnifying Party is responsible under this paragraph and tender the
defense of such claim, lawsuit or demand to the Indemnifying Party. The
Indemnified Party also shall cooperate in every reasonable manner with the
defense or settlement of such claim, demand or lawsuit. The Indemnifying Party
shall not be liable under this subparagraph for settlements by the Indemnified
Party of any claim, demand or lawsuit unless the Indemnifying Party has approved
the settlement in advance or unless the defense of the claim, demand or lawsuit
has been tendered to the Indemnifying Party, in writing, and the Indemnified
Party has failed promptly to undertake the defense.
VII.3 Releases.
(a) Affiliated Networks acknowledges that network failure can possibly occur,
and Affiliated Networks releases and holds GTE harmless from any losses or
damages that might occur in this event. Affiliated Networks further acknowledges
that Affiliated Networks and/or the User shall be responsible to provide for the
proper installation, operation; and maintenance of the equipment of Affiliated
Networks and/or the User used in connection with the Service, and Affiliated
Networks and/or the User shall ensure that such equipment is technically and
operationally Notwithstanding anything to the contrary contained herein,
compatible with the Service and in compliance with applicable Federal
Communications Commission rules and regulations.
(b) Affiliated Networks further acknowledges that GTE is not responsible for the
content on the Internet. Affiliated Networks shall indemnify and hold harmless
GTE from and against any loss, cost, claim, liability, damage, or expense
(including reasonable attorneys' fees) to third parties, relating to or arising
from the use of the Service by Affiliated Networks and/or any User, or anyone
using the login identification name of Affiliated Networks or an User, whether
or not Affiliated Networks or the User has knowledge of or has authorized such
access or use, including, without limitation, claims for libel,
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slander, invasion of privacy, infringement of copyright, patent infringement
(where Affiliated Networks or an User has used, connected, or combined the
Service with the products or services of others), negligence, or tortious
behavior.
VII.4 No Warranties. GTE MAKES NO WARRANTIES, EXPRESS OR IMPLIED, WITH RESPECT
TO THE SERVICE PROVIDED PURSUANT TO THIS AGREEMENT, INCLUDING, BUT NOT LIMITED
TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE,
and NON-INFRINGEMENT, NO REPRESENTATION OR STATEMENT MADE BY GTE OR ANY OF ITS
MERCHANTS OR EMPLOYEES, ORAL OR WRITTEN, INCLUDING, BUT NOT LIMITED TO, ANY
SPECIFICATIONS, DESCRIPTIONS OR STATEMENTS PROVIDED OR MADE TO CUSTOMER BY GTE
SHALL BE BINDING UPON GTE AS A WARRANTY OR OTHERWISE.
VII.5 Ownership and Grant of License of GTE Materials.
(a) Any and all software, ideas, inventions, documentation, other documents,
data, programs, materials, code, object code or other materials developed,
produced and/or created, licensed and/or developed by GTE in connection with
this Agreement, including all intellectual property rights, (collectively, the
"GTE Materials") are and shall remain the sole and exclusive property of GTE;
GTE shall have the right to use them for any purpose without compensation to
Affiliated Networks; and Affiliated Networks acquires no sublicense or rights in
same by virtue of this Agreement or the provision of the Service hereunder,
other than as hereinafter provided. During the term of this Agreement, and
subject to its terms and conditions, GTE grants Affiliated Networks a personal,
nonexclusive, nontransferable license to access, execute and use the GTE
Materials solely in connection with their retail activities for the purposes set
forth in the recitals to this Agreement. Affiliated Networks shall have no other
right or license to reproduce, distribute, download, display, modify, enhance,
improve or create any derivative work based on the GTE Materials.
(b) Without limitation to the foregoing, Affiliated Networks shall specifically
not reverse assemble, reverse compile, reverse engineer or otherwise translate
any part or all of the Object Code.
ARTICLE VIII - FORCE MAJEURE
VIII.1 Causes. Neither Party shall be held liable for any delay or failure in
performance of any part of this Agreement from any cause beyond its control and
without its fault or negligence, including, but not limited to, acts of civil or
military authority, government regulations, embargoes, epidemics, war, terrorist
acts, riots, insurrections, fires, explosions, nuclear accidents, strikes,
extended
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power blackouts, natural disasters like earthquakes, floods, volcanic action,
unusually severe weather conditions or other major environmental disturbances,
inability to secure transportation facilities, software products or services of
other persons, acts or omissions of transportation or communications common
carriers and legal and/or regulatory constraints affecting either of the Parties
hereto in performing their obligations hereunder ("Force Majeure").
VIII.2 Remedy. If a Force Majeure condition occurs, the Party injured by the
other Party's inability to perform may elect to: (a) terminate the applicable
Service Attachment as to Service not already received, if such Force Majeure
condition results in a delay or failure to perform which continues for more than
thirty (30) calendar days; or (b) suspend the Service for the duration of the
delaying cause, or (c) buy or sell elsewhere the Service to be bought or sold
hereunder and deduct from any commitment the services for which such commitments
have been made elsewhere and resume performance under this Agreement once the
delaying cause ceases. Unless written notice is given within thirty (30)
calendar days after such injured Party is apprised of the Force Majeure
condition, option (b) shall be deemed selected.
ARTICLE IX - PROPRIETARY INFORMATION
IX.1 Identification. Each Party recognizes and acknowledges that, in connection
with the Service to be provided hereunder, it may disclose to the other Party
proprietary or confidential customer, technical or business information in
written, graphic, oral or other tangible or intangible forms. In order for such
information to be considered "Proprietary Information" under this Agreement, it
must be marked "Confidential" or "Proprietary" or bear a marking of similar
import; provided, however, that Automatic Message Accounting and other billing
data shall be Proprietary Information even though it is not so marked. Orally
disclosed information shall be considered Proprietary Information only if
contemporaneously identified as such and reduced to writing and delivered to the
other Party with a statement or marking of confidentiality within twenty (20)
calendar days after oral disclosure.
IX.2 Nondisclosure. Subject to Sections 9.3 through 9.6, the Party (the
"Receiving Party") that receives Proprietary Information from the other Party
(the "Disclosing Party.") agrees:
(a) That all Proprietary Information shall be and shall remain the exclusive
property of the Disclosing Party.
(b) To limit access to such Proprietary Information to authorized employees who
have a need to know the Proprietary Information in order to perform its
obligations under this Agreement; provided, however, that Affiliated Networks
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may disclose Proprietary Information to its Merchants who agree to be bound by
the terms and conditions of this Agreement.
(c) To keep such Proprietary Information confidential and to use the same level
of care to prevent disclosure or unauthorized use of the received Proprietary
Information as it exercises in protecting its own Proprietary Information of a
similar nature.
(d) For a period of three (3) years following any disclosure, not to copy or
publish or disclose such Proprietary Information to others or authorize anyone
else to copy or publish or disclose such Proprietary Information to others
without the prior written approval of the Disclosing Party.
(e) To return promptly any copies of such Proprietary Information to the
Disclosing Party at its request.
(f) To use such Proprietary Information only for purposes of performing its
obligations under this Agreement and for other purposes only upon such terms as
may be agreed upon between the Parties in writing.
IX.3 Required Disclosures. The Receiving Party agrees to give notice to the
Disclosing Party of any demand to disclose or provide Proprietary Information of
the Disclosing Party to another person, under lawful process, prior to
disclosing or furnishing such Proprietary Information. Further, the Receiving
Party agrees to reasonably cooperate if the Disclosing Party deems it necessary
to seek protective arrangements. The Receiving Party may disclose or provide
Proprietary Information of the Disclosing Party: (a) to implement, effect and
enforce the Party's tariffs; (b) to meet the requirements of a court, regulatory
body or government agency having jurisdiction over the Party; provided, however,
that the Receiving Party shall notify the Disclosing Party so as to give the
Disclosing Party a reasonable opportunity to object to such disclosure. The
Disclosing Party may not unreasonably withhold approval of protective
arrangements provided by any such court, regulatory body or government agency.
Nothing herein requires either Party to support the position of any person or
entity as to whether any particular Proprietary Information is proprietary under
applicable law or this Article IX.
IX.4 Exceptions. Notwithstanding anything to the contrary contained in this
Agreement, the Proprietary Information described herein shall not be deemed
confidential or proprietary and the Receiving Party shall have no obligation to
prevent disclosure of such Proprietary Information if such Proprietary
Information:
(a) is already known to the Receiving Party;
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(b) is or becomes publicly known, through publication, inspection of the
product, or otherwise, and through no wrongful act of the Receiving Party;
(c) is received from a third party without similar restriction and without
breach of this Article IX;
(d) is independently developed, produced or generated by the Receiving Party;
(e) is furnished to a third party by the Disclosing Party without a similar
restriction on the third party's rights; or
(f) is approved for release by written authorization of the Disclosing Party.
IX.5 Permitted Uses. GTE shall be permitted to use Proprietary Information
obtained through recording the usage of GTE-provisioned facilities for the
purposes of: (a) estimation of facilities usage for jurisdictional separations;
(b) engineering and network planning of facilities; and (c) measurement for
billing purposes.
IX.6 Legal Requirements. Notwithstanding anything to the contrary contained in
this Agreement, a Party's ability to disclose Proprietary Information or use
disclosed Proprietary Information is subject to all applicable statutes,
decisions and regulatory rules concerning the disclosure and use of such
Proprietary Information which, by their express terms, mandate a different
handling of such information.
IX.7 Attachments. The Parties acknowledge that the attachments to this Agreement
may contain confidential information provided by Affiliated Networks and
identified as such and agree to limit distribution of portions of the Agreement
containing such information to those individuals in their respective
organizations with a need to know the contents of the Agreement. The Parties
further agree to seek confidential status for these portions of the Agreement
with any regulatory commission, with which the Agreement must be filed, to the
extent such a designation can be secured.
ARTICLE X - TERM AND TERMINATION
X.1 Term. This Agreement shall become effective on the date it is executed by
both Parties, and shall remain in effect for one (1) year (the "Initial Term"),
and shall continue after the Initial Term for subsequent terms of one (1) year
each except that either Party may terminate this Agreement upon thirty (30)
calendar days written notice.
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X.2 Termination for Breach. Notwithstanding anything to the contrary contained
herein, either Party shall have the right to terminate this Agreement, in whole
or in part, by written notice if either Party fails to cure or begin a good
faith effort to cure a material breach of any provision of this Agreement within
thirty (30) calendar days following written notice of such violation.
ARTICLE XI - MISCELLANEOUS
XI.1 Survival Provisions. The provisions of Section VII.5 (Ownership), Article
IX (Limitation of Liability and Indemnification), Article IX (Proprietary
Information) shall survive the expiration or the termination of this Agreement.
XI.2 Amendments, Waivers. This Agreement (or any part thereof, including
attachments or documents referred to herein) may be modified or additional
provisions may be added by written agreement signed by or on behalf of both
Parties. No amendment or waiver of any provision of this Agreement and no
consent to any default under this Agreement shall be effective unless the same
shall be in writing and signed by or on behalf of the Party against whom such
amendment, waiver or consent is claimed. In addition, no course of dealing or
failure of any Party to strictly enforce any term, right or condition of this
Agreement shall be construed as a waiver of such term, right or condition. In
the event GTE and Affiliated Networks subsequently agree that GTE shall provide
additional or enhanced services not otherwise described in this Agreement, then
Parties may by appropriate addenda provide for such services and their cost and
make the same subject to the terms and conditions included within this
Agreement.
XI.3 Assignment. Any assignment by either Party of any right, obligation or
duty, in whole or in part, or of any interest, without the written consent of
the other Party shall be void, except that either Party may assign all of its
rights, obligations and duties to any legal entity which is a subsidiary or
affiliate of that Party without consent, but with prior written notification.
Such written consent shall not be unreasonably withheld or delayed.
XI.4 Trademarks and Trade Names. Except as specifically set out in this
Agreement, nothing in this Agreement shall grant, suggest, or imply any
authority for one Party to use the name, trademarks, service marks, or trade
names of the other for any purpose whatsoever.
XI.5 Third Party Beneficiaries. This Agreement is for the benefit of the Parties
and creates no rights or entitlements for any person or organization that is not
a named party to this Agreement.
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XI 6 Governing Law This Agreement shall be governed by the substantive laws of
the State of Texas.
XI.7 Notices and Demands.
(a) Except as otherwise provided under this Agreement, all notices, demands or
requests which may be given by any Party to the other Party shall be in writing
and shall be deemed to have been duly given on the date delivered in person or
deposited, postage prepaid, in the United States mail, return receipt requested
and addressed as follows:
To GTE: Xxxxx Xxxxxxxx, Xx. Administrator- Contract Management
GTE Intelligent Network Services Incorporated
0000 XxxXxxxxx Xxxxxxxxx, Xxxxx 000
Xxxxxx, XX 00000
972/751-4051
To AFFILIATED NETWORKS:
Affiliated Networks Incorporated
0000 Xxxxx Xxxxxxxx Xxxxx, Xxxxx 000
Xxxxxxx Xxxxx, Xxxxxxx 00000
Attn: Xxxxx X. Xxxxxxxx, President
(b) If personal delivery is selected as the method of giving notice, a receipt
of such delivery shall be obtained.
(c) The address to which such notices, demands, requests, elections or other
communications is to be given by either Party may be changed by written notice
given by such Party to the other Party pursuant to this Agreement.
XI.8 Publicity. GTE and Affiliated Networks agree to submit to the other Party
any advertising, sales promotion, press releases or other publicity matter
relating to this Agreement wherein corporate or trade names, logos, trademarks
or service marks or the other Party or its affiliates are mentioned and each
Party further agrees not to publish or use such advertising, sales promotions,
press releases or publicity matters without the other Party's prior written
approval. NOTWITHSTANDING THE FOREGOING, BOTH PARTIES AGREE TO PROVIDE THE OTHER
PARTY PRIOR WRITTEN RESPONSE WITHIN TEN (10) BUSINESS DAYS FROM RECEIPT--OF SUCH
REQUESTS. SUCH APPROVAL SHALL NOT BE UNREASONABLY WITHHELD.
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XI.9 Executed in Counterparts. This Agreement may be executed in any number of
counterparts, each of which shall be an original, but such counterparts shall
together constitute but one and the same document.
XI.10 Headings. The headings in this Agreement are for convenience and shall not
be construed to define or limit any of the terms herein or affect the meanings
or interpretation of this Agreement.
XI.11 Binding Effect. This Agreement shall be binding upon the Parties hereto
and their respective successors and permitted assigns.
XI.12 Severability. In the event that one or more of the provisions contained in
this Agreement shall be invalid, illegal or unenforceable in any respect under
applicable statute, regulatory requirement or rule of law, then such provisions
shall be considered inoperative to the extent of such invalidity, illegality or
unenforceability and the remainder of this Agreement shall continue in full
force and effect.
XI.13 Entire Agreement. This Agreement (including all attachments hereto)
constitutes the entire understanding between the Parties and supersedes all
prior understandings, oral or written representation, statements, negotiations,
proposals and undertakings with respect to the subject matter thereof. In the
event of conflict between the terms and conditions of this Agreement and any
attachment hereto, the terms and conditions of this Agreement shall control.
XI.14 Authority. Each signatory to this Agreement represents and warrants that
he or she has authority to bind the entity on whose behalf he or she is
executing this Agreement.
XI.15 No Offer. Submission by GTE of this Agreement to AFFILIATED NETWORKS for
examination or signature does not constitute an offer by GTE for the products or
services described herein. This Agreement shall be effective only upon execution
and delivery by both AFFILIATED NETWORKS and GTE.
XI.16 Relationship of the Parties. This Agreement shall not be construed to
create a joint venture, partnership, employment relationship or franchise or any
other legal relationship between the parties. None of the parties shall share or
be responsible for the debts and liabilities of the other party, or have the
authority to legally bind the other in any matter.
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IN WITNESS WHEREOF, the Parties have entered into this Agreement
effective on the last date shown below.
GTE INTELLIGENT NETWORK SERVICES INCORPORATED D/B/A GTE INTERNETWORKING
By: /s/ Xxxxx X. Xxxxxxx, XX
------------------------------------------------
Name: Xxxxx X. Xxxxxxx, XX
------------------------------------------------
Title: Vice President/General Manager, On-line Services
------------------------------------------------
Date: 8/5/98
------------------------------------------------
AFFILIATED NETWORKS INCORPORATED
By: /s/ Xxxxx X. Xxxxxxxx
------------------------------------------------
Name: Xxxxx X. Xxxxxxxx
------------------------------------------------
Title: President
------------------------------------------------
Date: 7/29/98
------------------------------------------------
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SERVICE ATTACHMENT 1
INTERNET DIAL-UP SERVICES
SERVICE DESCRIPTION
GTE INTERNETWORKING DIAL-UP ACCESS SERVICE
Designed for residential and small business customers who periodically access
the Internet for information, browsing and file transferring;
ANALOG CONNECTION SERVICES WITH SPEEDS UP TO 56 KBPS INCLUDE:
Personal Edition of an Internet browser software;
Full Internet Access (browser, e-mail and newsgroups);
2 Megabytes of drive space on web server for personal home page;
24 hour, 7 day technical support;
$19.95* per month for dialup access;
$15 one-time set-up fee.
ISDN INTEMET ACCESS SERVICE INCLUDES:
ISDN 1B channel, dynamically assigned IP address
Personal Edition of an Internet browser software;
Full Internet Access (browser, e-mail and newsgroups);
2 Megabytes of drive space on web server for personal home page;
24 hour, 7 day technical support;
$39.95* per month includes dial-up access;
$40.00 one time set-up fee.
Prices include Internet access only and do not include local telephone line
charges. Prices subject to change and may require applicable sales taxes. 800
Number Dial-Up: Subscribers accessing the service from outside the local calling
scope can use the toll-free number. Additional charges of $5.95/per hour may
apply.
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EXHIBIT A
SUBSCRIBER END-USER AGREEMENT
See Attachment
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GTE INTELLIGENT NETWORK SERVICES INCORPORATED ("GTE")
INTERNET ACCESS AGREEMENT
____ calling to access the Internet, Subscriber, and/or any person
using Subscriber's login identification name, or login identification names
ordered by Subscriber, is deemed to have accepted the terms and conditions
contained in this Internet Access Agreement (the "Agreement") and shall be bound
thereby.
1. DEFINITIONS:
(a) "Subscriber," as used herein, means an individual, a corporation, or
a legal entity who incurs usage charges for the Service for its own
use or who incurs such charges on behalf of a third party, i.e., a
User.
(b) "User," as used herein, means a Subscriber who uses Service or an
individual, a corporation, or a legal entity whose Service usage
charges are incurred by a third party, i.e., Subscriber.
2. SERVICE: GTE will provide Subscriber and its Users analog or digital
access to the internet depending upon the rate plan selected (the
"Service"), subject to conditions generally beyond the control of GTE,
including the type and condition of the equipment (personal computer,
modem, etc.) of Subscriber and/or its Users. Service may be temporarily
unavailable or limited because of capacity limitations and may be
temporarily interrupted or curtailed due to equipment modifications,
upgrades, relocations, repairs, and similar activities necessary for the
proper operation of Service.
3. ACCEPTABLE USAGE OF DLAL-UP ACCOUNTS: Subscriber and its Users agree to
use dialup accounts solely on an active "dial-up" basis, meaning only as
needed and in no way on a standby or inactive basis in order to maintain a
connection. Without limitation of the foregoing, Subscriber and its Users
shall abide by the following provisions regarding usage:
(a) A dial-up account may be used for World Wide Web browsing, reading
or posting to Usenet (see Section 13 below) newsgroups, sending,
receiving and reading electronic mail and transferring files via the
file transfer protocol.
(b) A dial-up account shall not be used to host a dedicated server site
on the Internet.
(c) A dial-up account shall not be accessed simultaneously by multiple
users using the same user ID.
(d) A dial-up account has only one mailbox for incoming electronic mail
unless additional mail boxes have been purchased.
(e) Automated processes may not be used such as checking e-mail or
pinging the host to maintain a constant connection.
(f) User ID Names will be issued to Subscriber by GTE based upon
availability. If the User ID name is surrendered by Subscriber for
any reason, GTE shall not be obliged to reserve that name.
(g) GTE shall not be obligated to retain electronic mail for longer than
one month.
(h) A dial-up account has only 2 megabytes of server space for
Subscriber web pages unless additional web space has been purchased
or otherwise expressly allocated. And no such space shall be
available for accounts that are promotional until they become
billable accounts (unless such space is made available during the
promotional period, at GTE's sole discretion.
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4. INACTIVITY DISCONNECT POLICY: GTE reserves the right to disconnect a
dial-up account after 15 minutes of inactivity, as detected by GTE through
electronic means. This time is approximate and subject to change without
notice in GTE' sole discretion. Electronic or mechanical means to avoid an
inactivity disconnect are strictly prohibited. Electronic or mechanical
means include, but are not limited to, "pinging" the mail server,
employing electronic or software autodialer features to maintain an active
connection or repeatedly checking for e-mail by autolog-in to the mail
server. GTE reserves the right to electronically audit connections to
enforce the above requirements.
5. ACCESS: Service access will be provided via a local telephone number where
available. GTE is not responsible for any toll or other charges in the
event service access is not provided via a local telephone number, for
instance, if service access is provided via a toll call. If a local
telephone number is not available, the Service may be remotely accessed
via an 800 series number at an additional charge.
6. PRICE: Subscriber shall pay to GTE the charges associated with the rate
plan selected, including applicable taxes, 800 series number, etc. If
service access is not provided via a local telephone number, Subscriber
may also be responsible for toll or other charges.
7. PAYMENT: Subscriber shall be billed on a monthly basis. Payment will be
deemed made when received by GTE.
8. TERM AND TERMINATION: This Agreement becomes effective upon registration
of Subscriber's login identification name and shall remain in effect for
the period indicated in the rate plan selected or until terminated as
provided herein. This Agreement shall continue in effect for consecutive
additional terms following the initial Term until either Party gives the
other party on-line notice or other notice of termination at least thirty
(30) calendar days prior to the expiration of the then-current term. In
the event Subscriber terminates the Service hereunder, then without
limitation to any other remedy GTE may have, Subscriber will pay to GTE
upon discontinuance of the Service a termination charge equal to the
applicable monthly rate times the number of months remaining in the term.
9. CREDIT: There shall be no credits, reductions, or setoff against the
charges far Service for downtime or interruption of Service unless such
Service interruption exceeds 24 hours in duration. GTE shall provide
Subscriber with a credit equal to 1/30 of the recurring monthly charge for
Service for each twenty-four hour period from the time of notice of
interruption
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until Service restoration, provided Subscriber notifies GTE of the Service
interruptions. No adjustments shall be made by accumulating periods of
non-continuous interruption. A credit allowance will not be given for
mistakes, omissions, interruptions, delays, errors, defects or
curtailments in the Service caused by the negligence or willful act of
Subscriber or others, or mistakes, omissions, interruptions, delays,
errors or defects caused by failure of equipment or of Service as
described in Section 2.
10. LIMITATION OF LIABILITY: GTE SHALL NOT BE LIABLE FOR INTERRUPTIONS CAUSED
BY FAILURE OF EQUIPMENT OR SERVICES NOT PROVIDED BY GTE, FAILURE OF
COMMUNICATIONS, POWER OUTAGES, OR OTHER INTERRUPTION NOT WITHIN THE
COMPLETE CONTROL OF GTE, NOR SHALL GTE BE LIABLE FOR PERFORMANCE
DEFICIENCIES CAUSED OR CREATED BY SUBSCRIBER'S OR ITS USERS' EQUIPMENT.
SUBSCRIBER AND USER HEREBY RELEASE GTE FROM LIABILITY ARISING FROM ANY
CONTENT ACCESSED VIA THE SERVICE. GTE'S PERFORMANCE UNDER THIS AGREEMENT
SHALL BE EXCUSED IN CASE OF LABOR DIFFICULTIES, GOVERNMENTAL ORDERS, CIVIL
COMMOTIONS, ACTS OF GOD, OR OTHER CONDITIONS OR CIRCUMSTANCES BEYOND ITS
REASONABLE CONTROL. GTE SHALL NOT BE LIABLE IF CHANGES IN OPERATION,
PROCEDURES, OR SERVICES REQUIRE MODIFICATION OR ALTERATION OF SUBSCRIBER'S
OR ITS USERS' EQUIPMENT, RENDER THE SAME OBSOLETE OR OTHERWISE AFFECT ITS
PERFORMANCE. IN NO EVENT SHALL GTE BE LIABLE FOR ANY INCIDENTAL, SPECIAL,
CONSEQUENTIAL, OR PUNITIVE DAMAGES INCLUDING BUT NOT LIMITED TO LOSS OF
PROFITS, LOSS OF BUSINESS OR BUSINESS OPPORTUNITY, LOSS OF USE, ETC. THE
LIABILITY OF GTE FOR ACTUAL PROVEN DAMAGES FOR ANY CAUSE WHATSOEVER,
INCLUDING BUT NOT LIMITED TO ANY FAILURE OF OR DISRUPTION OF SERVICE,
REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT OR IN TORT OR
OTHERWISE, INCLUDING NEGLIGENCE, SHALL BE LIMITED TO AN AMOUNT EQUIVALENT
TO CHARGES PAYABLE BY SUBSCRIBER UNDER THIS AGREEMENT FOR THE SERVICE
DURING THE PERIOD SUCH DAMAGES OCCUR. GTE MAKES NO OTHER WARRANTIES OR
REPRESENTATIONS, EITHER EXPRESS OR IMPLIED, CONCERNING THE SERVICE, AND
EXPRESSLY DISCLAIMS WARRANTIES OF FITNESS FOR A PARTICULAR USE OR PURPOSE,
THE WARRANTY OF MERCHANTABILITY AND ANY OTHER WARRANTY IMPLIED BY LAW.
11. INDEMNITY: Subscriber and User shall indemnify and hold harmless GTE from
and against any loss, cost, claim, liability, damage, or expense
(including reasonable attorneys' fees) to third parties, relating to or
arising from the use of the Service by Subscriber, User, or any of their
personnel, whether or not Subscriber or User has knowledge of or has
authorized such access or use, including, without limitation, claims for
libel, slander, invasion of privacy, infringement of copyright, patent
infringement (where Subscriber or User has used, connected, or combined
the Service with the products or services of others), negligence, or
tortious behavior. Subscriber agrees to indemnify GTE along with any
parties from whom GTE obtains network services, and to hold them harmless
from any claims resulting from the use of the Service by Subscriber or its
Users that damage another party or that violate the law.
12. SUBSCRIBER RESPONSIBILITY: Subscriber shall ensure that its Users shall
comply with the terms and conditions of this Agreement. Any access to
other networks connected to GTE's network must comply with the rules of
the other networks. Subscriber shall not use or permit its end users to
use the Services in ways that violate laws, infringe the rights of others,
interfere with users of our network or other networks, or otherwise
violate our Acceptable Use Policy set forth at xxxx://xxx.xxx.xxx/xxx/.
For example, you shall not distribute chain letters or unsolicited bulk
electronic mail ("spamming"); propagate computer worms or viruses; use a
false identity; attempt to gain unauthorized entry to any site or network;
distribute child pornography, obscenity or defamatory material over the
internet; or infringe copyrights, trademarks or other intellectual
property rights. Subscriber further agrees to comply with U.S. export laws
concerning the transmission of technical data and other regulated
materials via the Services.
13. USE OF SERVICE: Subscriber and its Users agree to abide by and comply with
the following terms and conditions:
(a) Misuse of Service: Subscriber and its Users shall not use the
Service to make foul or profane expressions, to impersonate another
person with fraudulent or malicious intent, to contact another
person so as to annoy, abuse, threaten, or harass such other person,
or for any purpose in violation of law, or in such a manner as to
interfere unreasonably with the use of the Service by any of GTE's
customers. Subscriber and its Users shall not distribute chain
letters or "junk" mail (any unsolicited mail of a business or
commercial nature) or engage in "Ponzi" or "pyramid" schemes. The
Service and underlying network may only be used for lawful purposes.
Transmission of any material in violation of any U.S. or state
regulation is prohibited. This includes, but is not limited to:
copyrighted material, material which is threatening or obscene, or
material protected by trade secret. In addition, GTE generally
reserves the right in its sole discretion to either temporarily
discontinue, or permanently terminate furnishing the Service upon
notice to Customer in the event Customer uploads any information
that is libelous, defamatory or that violates or infringes any right
of privacy of any Persons; uploads any messages, data, images or
programs that are indecent, obscene or pornographic; use the
facilities and capabilities of GTE to conduct or solicit the
performance of any illegal activity or to conduct any other activity
that infringes the rights of GTE or any third party; or upload any
information, messages, data, images or programs that is
discriminatory or otherwise offensive as determined by GTE in its
sole discretion.
(b) INTERFERENCE WITH THE RIGHTS OF THIRD PARTIES: In the event that GTE
receives notice from a third party, or in the event that GTE
reasonably believes, that Subscriber's or any User's use of the
Service, either alone or in connection with products or services of
others, constitutes, causes, results in, induces or contributes to
either (i) defamation, invasion of privacy, or unfair competition,
or (ii) misuse, misappropriation or infringement of any patent,
copyright, trademark, trade secret or other proprietary or
intellectual property right of such third party, then GTE shall have
the right, in its sole and exclusive option and discretion, without
prior notification to Subscriber or to User(s), and without limiting
any other rights or remedies GTE might have or incurring any
obligation or liability to Subscriber or to User(s), to temporarily
discontinue or permanently terminate, in whole or in part,
furnishing of Services to Subscriber or to User(s).
-2-
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(c) Usenet Policy and Posting Restrictions: Usenet comprises a system of
bulletin boards called newsgroups. Usenet access is provided to
dial-up customers of GTE. Subscriber and its Users shall not post to
newsgroups until they have familiarized themselves with the subjects
and established guidelines and restrictions of the newsgroup. All
such Usenet guidelines and restrictions are hereby incorporated
herein by reference and Subscriber and its Users unconditionally
agree to adhere to them. These guidelines and restrictions include,
but are not limited to, the following:
- Only post articles that are relevant to the newsgroup.
Inappropriate or irrelevant postings are not appreciated by
participants of newsgroups nor are they allowed under Usenet
protocols.
- Most newsgroups do not allow commercial postings. Users should
verify this restriction before making any such posting.
- Blanket postings to all or large numbers of newsgroups
simultaneously with disregard to the newsgroups' subject are
forbidden.
- Chain letters are not allowed to be posted.
- Unauthorized creation of newsgroups is prohibited.
(d) Harm to Equipment, Software and Processes: Subscribers agree
unconditionally to not cause harm to GTE or third party equipment,
software, or processes used in connection with furnishing the
Service. In addition to constituting a default under this Agreement,
any breach of this provision may result in civil and/or criminal
penalties pursuant to applicable local, state and federal law.
(e) Content, Accuracy of Information: GTE and its affiliates, along with
any parties from whom GTE obtains network services, exercises no
control whatsoever over the content of the information passing
through GTE's network. GTE makes no warranties of any kind, whether
express or implied, for the content of the information passing
through its network. Use of any information obtained via the GTE
network is at Subscriber's and its Users' own risk or the risk of
their affiliates. GTE specifically denies any responsibility for the
accuracy or quality of information obtained through its Service.
(f) Offensive and/or Harmful Information: The Internet hosts some
material deemed unfit for viewing and reading by minors under the
age of 18. Some sites contain information both in text and graphical
formats that Subscriber and/or Users may consider obscene and/or
harmful. Subscriber and/or Users agree to not hold GTE responsible
for sites and postings that could be considered obscene, lewd,
offensive, and/or harmful. Subscribers are responsible for their own
monitoring and viewing habits and their Users, including minors. GTE
does not block, filter or screen postings or sites on the Internet
in whole or in part.
14. DEFAULT: Upon a default by Subscriber GTE may, in its sole discretion,
without prior notification and without limiting its remedies or incurring
any liability to Subscriber, either temporarily discontinue or permanently
terminate the furnishing of Service to Subscriber in whole or in part.
"Default" means any failure by Subscriber to comply with any term of
Agreement, including without limitation, failure to make timely payment of
any amount due GTE or failure to comply with the restrictions on use of
Service set forth in Section 13. Where Subscriber's equipment is used with
Service provided by GTE in violation of any of the provisions herein, GTE
will notify Subscriber and take such action as is necessary for the
protection of the Service for use by its other customers. Subscriber shall
discontinue such use of the equipment or correct the violation immediately
and shall confirm in writing to GTE within five days that such use has
ceased or that the violation has been corrected, and if Subscriber fails
to do so, GTE will disconnect Subscriber's Service, without any credit
allowance, until such time as Subscriber complies with the provisions
hereof. GTE reserves the right to charge a reconnect fee for any
discontinued Service that is subsequently reconnected.
15. NO WARRANTIES: GTE makes no warranties, express or implied, with respect
to the Services provided pursuant to this Agreement, including, but not
limited to, the implied warranties of merchantability and fitness for a
particular purpose. No representation or statement made by GTE or any of
its agents or employees, oral or written, including, but not limited to,
any specifications, descriptions or statements provided or made to
Customer by GTE shall be binding upon GTE as a warranty or otherwise.
16. EQUIPMENT: Subscriber shall be responsible to provide for the proper
installation, operation, and maintenance of Subscriber's equipment used in
connection with the Service, and Subscriber shall ensure that such
equipment is technically and operationally compatible with the Service and
in compliance with applicable Federal Communications Commission rules and
regulations.
17. RESOLUTION OF DISPUTES:
(a) The parties desire to resolve disputes arising out of this Agreement
without litigation. Accordingly, except for action seeking a
temporary restraining order or injunction related to the purposes of
this Agreement, or suit to compel compliance with this dispute
resolution process, the parties agree to use the following
alternative dispute resolution procedure as their sole remedy with
respect to any controversy or claim arising out of or relating to
this Agreement or its breach.
(b) At the written request of a party, each party will appoint a
knowledgeable, responsible representative to meet and negotiate in
good faith to resolve any dispute arising under this Agreement. The
parties intend that these negotiations be conducted by non-lawyer,
business representatives. The location, format, frequency, duration,
and conclusion of these discussions shall be left to the discretion
of the representatives. Upon agreement, the representatives may
utilize other alternative dispute resolution procedures such as
mediation to assist in the negotiations. Discussions and
correspondence among the representatives for purposes of these
negotiations shall be treated as confidential information developed
for purposes of settlement, exempt from discovery and production
which shall not be admissible in the arbitration described below or
in any lawsuit without the concurrence of all parties. Documents
identified in or provided with such communications that are not
prepared for purposes of the negotiations are not so exempted and
may, if otherwise admissible, be admitted in evidence in the
arbitration or lawsuit.
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(c) If the negotiations do not resolve the dispute within 60 days of the
initial written request, the dispute shall be submitted to binding
arbitration by a single arbitrator pursuant to the Commercial
Arbitration Rules of the American Arbitration Association. A party
may demand such arbitration in accordance with the procedures set
out in those rules. Discovery shall be controlled by the arbitrator
and shall be permitted to the extent set out in this section. Each
party may submit in writing to a party, and that party shall so
respond, to a maximum of any combination of 35 (none of which may
have subparts) of the following: interrogatories, demands to produce
documents and requests for admission. Each party is also entitled to
take the oral deposition of one individual of another party.
Additional discovery may be permitted upon mutual agreement of the
parties. The arbitration hearing shall be commenced within 60 days
of the demand for arbitration. The arbitration shall be held in
Irving, Texas. The arbitrator shall control the scheduling so as to
process the matter expeditiously. The parties may submit written
briefs. The arbitrator shall rule on the dispute by issuing a
written opinion within 30 days after the close of hearings. The
times specified in this section may be extended upon mutual
agreement of the parties or by the arbitrator upon a showing of good
cause. Judgment upon the award rendered by the arbitrator may be
entered in any court having jurisdiction.
(d) Each party shall bear its own costs of these procedures. A party
seeking discovery shall reimburse the responding party the costs of
production of documents (to include search time and reproduction
costs). The parties shall equally split the fees of the arbitration
and the arbitrator.
18. MISCELLANEOUS: This Agreement shall be governed by, construed under, and
enforced in accordance with, the laws of the state of Texas. In the event
of a conflict between this Agreement and any applicable tariff, the tariff
shall prevail. If any provision of this Agreement shall be held to be
invalid or unenforceable, the validity and enforceability of the remaining
provisions of this Agreement shall not be affected thereby. This Agreement
embodies the entire agreement between the parties with respect to the
subject matter hereof and supersedes all prior agreements and
understandings, whether written or oral, and all contemporaneous oral
agreements and understandings relating to the subject matter hereof. GTE
may amend the terms and conditions of this Agreement by giving Subscriber
30 days' prior on-line notice. This Agreement is subject to modification
by any authorized regulatory agency. GTE may assign this Agreement without
limitation, but Subscriber may not assign this Agreement without GTE's
prior written consent. This Agreement shall be binding on the parties
hereto and their respective personal and legal representatives,
successors. and permitted assigns.
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