EXHIBIT 10.15
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, Xxxxxxxx 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
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or 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 P.O. Box 50191, Minneapolis, MN 55405, 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-mark 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 Xxxxxxxx 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 mark, service mark, 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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