NETWORK SERVICES CONTRACT
Between
IBS INTERACTIVE, INC.
and
THE CATHOLIC HEALTHCARE NETWORK
THIS CONTRACT (the "Contract") is entered into as of by and between IBS
Interactive, Inc. ("IBS"), located at 000 Xxxx Xxx., Xxxxxxx, Xxx Xxxxxx 00000.
and The Catholic Healthcare Network, ("Customer"), a company located at 0000 0xx
Xxx. - Xxxxx 0000, XX, XX 00000.
NOW, THEREFORE, the parties agree as follows:
Article I. STATEMENT OF WORK
A. IBS will provide the Services (the "Services") which will be
dedicated communications links to the Internet, computer hardware and
co-location of the Customers servers.
B. Variations from the aforesaid Statement of Work shall be subject to
written approval by IBS and the Customer.
Article II. DURATION OF CONTRACT
This Contract shall be effective upon the signing of the Contract by
Customer and IBS (the "Effective Date"). This Contract shall continue
in effect, unless sooner terminated as provided in this Contract, for
a period of 2 year(s) after the Effective Date. This Contract may be
renewed upon the mutual written agreement or the parties hereto.
Article III. ESTIMATED COST AND PAYMENT
A. IBS will invoice Customer for the One-Time Costs listed in Appendix
A upon the execution of this Contract. IBS will invoice Customer
monthly for the Monthly Costs listed in Appendix A.
B. Payments shall be submitted to:
IBS Interactive, Inc.
000 Xxxx Xxxxxx
Xxxxxxx, XX 00000
The invoices shall be paid within thirty (30) days of receipt by
Customer. IBS shall give Customer written notice of any payment not
made within such thirty (30) days period and Customer shall have an
additional five (5) day period from receipt of such notice to make
payment without penalty. Subsequent to the aforementioned five (5) day
period, a service charge equal to one and one-half percent (1.5%) of
the invoiced amount shall be assessed monthly for all over due
payments stated on subsequent invoices.
Article IV. PROJECT DIRECTORS
-------------------- is hereby designated as the Customer Project
Director for this Contract. Xxxxx Xxxxxxx Xx., is hereby designated as
the IBS Project Director for this Contract.
Article V. CHANGES
This Contract, including the attached Appendix A, may only be amended
with the prior written consent of both of the parties hereto.
Article VI. PUBLICATION
The Customer hereby permits IBS to publicly disclose that Customer
utilizes IBS' services. All other terms of this agreement are
confidential and shall not be disclosed by the parties hereto not by
their agents or employees except as is necessary in the ordinary
course of business solely for the implementation of this Contract
where required by law.
Article VII ASSIGNMENT
Neither this Contract nor any rights or obligations under this
Contract, in whole or in part, shall be assigned or otherwise
transferred by either party without the other party's prior written
consent. In the event a proposed assignment is approved, the successor
party to this Contract shall expressly assume in writing the
obligation to perform in accordance with the terms and conditions of
this Contract.
Article VIII. TERMINATION
A. This Contract may be terminated by either party upon sixty (60)
days prior written notice to the other party. Written notice of
termination must be sent by the terminating party, together with a
copy of this Contract, to the address of the non-terminating party
listed above.
B. Notwithstanding sub-section (A) hereof, IBS shall have the right to
immediately terminate this Contract in the event of Customer's breach
of any of its representations or warranties as set forth in Article X
below.
C. Notwithstanding sub-section (A) hereof, IBS may terminate this
Contract upon five days prior written notice in the event that
Customer fails to make payments in accordance with Article III of this
Agreement.
D. In the event of termination by IBS, IBS shall promptly refund a
pro-rata share of the Monthly Cost (as defined in Appendix A) to the
Customer unless the termination is pursuant to either Article VIII(B)
or Article VIII(C) in which case IBS shall not be required to refund a
pro-rata share of the Monthly Cost to Customer. In the event of a
termination by Customer, IBS shall not be required to refund a
pro-rata share of the Monthly Cost to Customer unless the Service down
time is caused by a war, acts of God, strikes or other labor
disturbances, national emergency, action of a primary telephone common
carrier, the fault of Customer or any causes of like or different kind
beyond the control of IBS. The pro-rata share of the Monthly Cost
shall be:
Number of days in month remaining after termination
---------------------------------------------------
Monthly Cost x Number of days in month of termination
In the event of termination, Customer retains all rights to any of
Customer's documents located on an IBS system.
Article IX. CUSTOMER'S INDEMNITY
Customer shall indemnify and hold harmless IBS from and against any
and all liabilities, claims, costs, assessments, fees or expenses of
any kind, including without limitation defense costs and attorneys'
fees arising from or related in any way to (I) any claim which, if
proved, would breach any warranty or representation of Customer under
Article X of this Contract and (ii) any and all Third Party Claims (as
defined below).
Article X. REPRESENTATIONS AND WARRANTIES
Sellers Representations
IBS hereby represents with respect to the Service provided pursuant to
this Contract that IBS will employ adequate personnel to perform and
deliver the Service.
CUSTOMER REPRESENTATION
A. Customer represents that neither Customer, its agents nor employees
shall utilize the Service for:
1. illegal purposes.
2. transmission of threatening, obscene, or harassing materials; or
3. interference with or disruption of network users, services or
equipment.
For the purposes of this contract, disruptions include, but are not
limited to, disruption of unsolicited advertising, propagation of
computer worm and viruses, and using the network to make unauthorized
entry to any other machine accessible via the network.
It is assumed that the information and resources accessible on or
through the Service are private to the individuals and organizations
which own or hold rights to those resources and information, unless
specifically stated otherwise by the owners or holders of those
rights. It is therefore not acceptable for an individual to use the
Service to access information or resources unless permission to do so
has been granted by the owners or holders of rights to those resources
or information.
B. Customer represents and warrants to IBS:
1. That the name which it has requested IBS to register, or the name
that Customer has registered, on its behalf with the Internet Network
Information Center (Inter NIC) does not and will not infringe or
conflict with any trademark. tradename service xxxx or any proprietary
right of any third party; and
2. That Customer will not use the Service in any way or engage in any
conduct which will (whether intentionally or not) infringe on any
copyright. trademark, service xxxx, tradename, patent. trade secret or
other intellectual property or proprietary right or right of publicity
or privacy of, or libel, slander, defame or disparage, any third party
("Third Party Claims"), or create risk of liability for IBS with
respect to any Third Party Claims or cause IBS to become a party to
any action or proceeding involving Third Party Claims.
Article XI. DISCLAIMER OF WARRANTIES
IBS EXPRESSLY DISCLAIMS ALL WARRANTIES, EXPRESSED OR IMPLIED RELATING
TO THE SERVICE INCLUDING, WITHOUT LIMITATION, ITS ACCURACY,
RELIABILITY, COMPREHENSIVENESS, COMMERCIAL VALUE, MERCHANTABILITY,
FITNESS OR SUITABILITY FOR ANY PARTICULAR PURPOSE.
Article XII. LIMITATION OF LIABILITY
NOTWITHSTANDING ANY OTHER PROVISION OF THIS AGREEMENT, IBS SHALL NOT
BE LIABLE OR RESPONSIBLE FOR MISUSE OF SERVICE BY CUSTOMER, ITS
AGENTS, ITS EMPLOYEES AND/OR ITS CLIENTS OR FOR CONSEQUENTIAL, SPECIAL
OR INCIDENTAL DAMAGES, AND ITS LIABILITY FOR ANY AND ALL PURPOSES
SHALL BE LIMITED TO THE AMOUNT ACTUALLY PAID TO AND RECEIVED BY IBS
PURSUANT TO THIS CONTRACT.
Article XIII. FORCE MAJEURE
IBS or its contracts shall be excused from failures or delays in
furnishing equipment or Services hereunder to the extent that such
failure or delay arises either in whole or in part from any cause
reasonably beyond its control.
Article XIV. GOVERNING LAW
This Contract shall be governed by the laws of the State of New York.
Article XV. SOLE AGREEMENT
This Contract supersedes any and all prior oral representations and/or
understandings, and/or all written correspondence, understandings
and/or agreements and contains the entire understanding and agreement
between the parties.
Article XVI. SEVERABILITY
All provisions or this Contract shall be severable and no such
provision shall be affected by the invalidity of any other such
provision to the extent that such invalidity does not also render such
other provision invalid. In the event or the invalidity of any
provision of this Contract, this Contract shall be interpreted and
enforced as if all provisions thereby rendered invalid were not
contained herein. If any provision of this Contract shall be
susceptible of two interpretations, one of which would render the
provision invalid and the other of which would Cause the provision to
be valid, such provision shall be deemed to have the meaning which
would cause it to be valid.
Article XVII. WAIVER
The failure of either party to exercise in any respect any right
provided for herein shall not be deemed a waiver of such right or any
other right herein.
Article XVIII. SIGNATORIES
The respective signatories to this Contract hereby represent and
warrant that they have the authority to execute this Contract and bind
the parties hereto.
Article XIX. HEADINGS
The headings used in this Contract will be used only for purpose of
reference and shall not be deemed to govern, limit, modify or in any
other manner affect the scope. meaning or intent of the provisions of
this Contract or be given legal effect whatsoever.
BY THEIR SIGNATURES BELOW, the undersigned parties to this Contract have 'greed
to the terms and conditions provided above
INTERNET BROADCASTING SYSTEM, INC. THE CATHOLIC HEALTHCARE NETWORK
By: /s/ Xxxxxxxx Xxxxxxxx, Xx. By: /s/ Xxxxxxx Seglet
------------------------------ ---------------------------
Xxxxxxxx Xxxxxxxx, Xx.
General Manager
Date: 12/27/96 Date:
