MegaPOP(TM) Wholesale Service Agreement
This Agreement, made and entered into this 17th day of December, 1999
(hereinafter referred to as "date of this Agreement") by and between StarNet,
Inc., a corporation having it's principal place of business at 000 Xxxxx Xxxx
Xxxxx, Xxxxx 000, Xxxxxxxx, XX 00000 (hereinafter "SNI") and
Compu-XXXX, Inc. a corporation having it's principal place of business at 00
Xxxxxx Xxxxxx Xxxxxxxxxx, XX 00000 (hereinafter "ISP").
Mutually agreed contract is reassignable to any new entity that replaces the
corporation herein.
WITNESSETH
Whereas, ISP is in the business of providing various services on the worldwide
computer network known as the Internet and of providing support for various
advertising and telemarketing sales forces;
Whereas, SNI is in the business of providing various services to third parties
on the Internet, including but not limited to providing access to the Internet,
including but not limited to providing access to the Internet for individuals
and business entities;
Whereas, ISP desires a provider of access to the Internet for its customers and
clients;
Whereas, SNI desires to provide access to the Internet for customers and clients
of ISP;
Whereas, the parties hereto are desirous of setting forth, in writing, terms and
conditions, under which ISP shall direct their customers to SNI for service and
SNI shall provide such customers with access to the Internet;
Now therefore, in consideration of the premises set forth in the foregoing
recitals, which are hereby made a part thereof and incorporated herein by
reference, and further, of the mutual promises, covenants, agreements,
conditions, terms and acknowledgrnents contained herein and other good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, ISP and SNI hereby agree as follows:
ARTICLE ONE - DURATION
1.1. TERM.
Except as otherwise provided herein and subject to earlier termination
hereof in accordance with the terms of this Agreement, the "initial term"
of this Agreement shall be one (1) year from the date hereof.
1.2. EXTENSION.
This Agreement shall be automatically extended beyond the initial term
unless earlier terminated as otherwise provided in this Agreement or
unless either party provides written notice of termination to the other
as set forth immediately hereinbelow. A written notice of termination
must be provided by one party to the other no later than sixty (60) days
prior to the expiration of the initial term, and hereafter on no less
than sixty (60) days prior written notice. Hereinafter, the Initial term
and any extension thereof shall sometimes collectively be referred to as
the "term of this Agreement".
ARTICLE TWO - DUTIES AND RESPONSIBILITIES OF ISP
2.1. CUSTOMERS.
ISP shall not be limited to directing all of it's customers to SNI for
purposes of providing access to the Internet under the terms and
conditions of this Agreement.
2.2. ADVERTISING AND PROMOTION.
ISP shall solely be responsible for and shall incur reasonable expense in
connection with advertising and promotional activities designed
specifically to generate customers who are interested in access to the
Internet.
2.3. SIGN UP.
ISP shall document and maintain information pertaining to each customer
who has committed to the Internet services to be provided by SNI under
the terms of this Agreement. The pertinent information, specifically the
following: 1. ISP assigned (12) digit PPP logon name, 2. ISP assigned PPP
password, 3. PPP account activation / deactivation symbol, and 4. The
preferred MegaPOP(TM) dial-up location for the specific customer, shall
be forwarded to SNI by ISP, via electronic file transfer to a
pre-determined SNI authentication server, in a pre-determined format, to
SNI for activation on the SNI system for eventual service.
2.4. TERMS AND CONDITIONS.
ISP shall make such warranties, and representations and may limit its
liability to any customer, in such terms, conditions and limitations
substantially identical to those set forth in existing ISP customer
liabilities.
2.5. CUSTOMER CONTACT.
SNI shall not contact an ISP customer without prior written permission of
ISP whose permission shall not be unreasonably withheld.
2.6. ISP PPP ACCOUNT NAMES.
ISP shall assign and be responsible for the assignment of ISP PPP account
names. Account names shall be defined within the twelve (12) digit
account name definition whereas the preceding four (4) digits of the ISP
PPP account name will be defined as the four (4) digit
code assigned exclusively to ISP. The succeeding eight (8) digits in the
ISP PPP account name will be assigned and managed by ISP. ISP agrees to
limit the assignment of ISP PPP account names to one ISP PPP account name
per PPP account assigned.
2.7. PPP ACCOUNT PASSWORDS.
ISP shall be responsible for the assignment and maintenance of all ISP
PPP account passwords.
ARTICLE THREE - DUTIES AND RESPONSIBILITIES OF SNI
3.1. TO ISP.
Within (1) business day after the execution of this agreement by the
parties hereto, SNI shall provide to ISP the following:
(a) complete PPP access to the Internet for all ISP customers described
within this Agreement.
(b) complete 2 B Channel ISDN access to the
Internet for all ISP customers described within this Agreement.
3.2. TO THE CUSTOMERS.
Within one (1) business day of receipt of notice from ISP of an
electronic delivery of customer access information, SNI shall perform,
cause to be performed, or provide, as the case may be, the following:
(a) SNI shall establish a new PPP account for each customer delivered to
SNI, via electronic file transfer, with access to all SNI MegaPOP(TM) PPP
dial-up servers;
(b) For each customer, SNI shall provide unlimited dial-up access to the
Internet through SNI PPP dial-up servers. ISP understands that their
customers will be subject to a minimum of 10 minute idle time cutoff,
whereas each connected customer will lose their connection in the event
they do not make use of their connection for a minimum period of 10
minutes.
3.3. BUSY SIGNAL CONDITION(S).
SNI will make every reasonable effort to maintain a user to modem ratio,
on a city to city basis, equal to or less than 10:1. In the event the
user to modem ratio exceeds 10:1, SNI must take immediate action to
remedy this situation within 30 days. In the event the user to modem
ratio does not reduce to less than 10.1 in the allotted 30 day period,
ISP may make claims for the reduction of their monthly MegaPOP(TM)
invoices for the affected service month, following the 30 day period, for
up to 25% of their total service invoice. ISP must itemize the total
number of affected customers using the MegaPOP(TM) services in the
affected city.
ARTICLE FOUR - TECHNICAL SUPPORT AND CUSTOMER INQUIRIES
4.1. SERVICES OF SNI.
SNI shall perform technical support services, to ISP, solely relevant to
connection of a customer to access to the internet, including but not
limited to the customer's modem, but excluding any services relevant to
the ISP provided customer software. All of said services shall be
performed by SNI during its normal and regular business hours.
4.2. SERVICES OF ISP.
ISP shall address any and all customer inquiries of any nature whatsoever
and shall perform any and all technical support services relevant to the
ISP software provided to its customers.
ARTICLE FIVE - PAYMENT
5.1. AMOUNT.
ISP shall make payment to SNI in the amount, described in Addendum A
"MegaPOP(TM) Price Schedule", per customer per month for each ISP
customer that SNI provides PPP access to the Internet under the terms of
this Agreement. Payment shall be made to SNI on or before the 10th day of
each succeeding calendar month. Payment in full shall be made to SNI, as
provided hereinabove, notwithstanding customer connection to or
termination from the Internet at any time during the preceding calendar
month.
SNI shall provide written notice to ISP, for any changes in the Addendum
A "MegaPOP(TM) Price Schedule", with a minimum sixty (60) day notice
prior to the effectivity of such changes, for all existing recurring fee
services.
5.2. BILLING AND COLLECTION.
ISP shall provide all services of billing and collection and shall be
responsible for all costs and expenses incurred in connection with
services rendered by SNI under the terms of this Agreement.
5.3. FAILURE TO XXXX OR COLLECT.
ISP shall make payment to SNI, as described under the terms of this
Agreement, notwithstanding ISP's failure to xxxx or collect from an ISP
customer for services provided by SNI, under the terms of this Agreement.
5.4. REFUND.
ISP may utilize its reasonable discretion in making a determination
whether monies should be refunded to an ISP customer as a result of
"ineffective services" provided by SNI to a customer under the terms of
this Agreement. "Ineffective services" of SNI shall be defined as the
failure by SNI to provide customers with uninterrupted access to the
Internet for a cumulative time period of less than ninety-seven percent
(97%) of the total available time for connection to the internet during a
given calendar month. "Total time available for
connection to the Internet" shall be determined by multiplying the number
of days in the calendar month by twenty four (24) hours. The log-in
history of SNI's user access logs which shall be recorded by SNI on one
of their servers shall be used to determine service interruptions. Any
such refund provided to an ISP customer, due to the described ineffective
service shall be taken from the payment owed to SNI by ISP for the
successive calendar month.
5.5. AMOUNT CALCULATION FOR CUSTOMERS ADDED.
ISP may provide internet access for their customers via any MegaPOP(TM)
access location. Access Authentication, enabling a customer's connection
to the MegaPOP(TM) system, may be achieved through the MegaPOP(TM)
Account Manager Interface or the ISP's own Authentication Server. ISP
reserves the right to activate and manage their accounts via their own
Authentication Server instead of the MegaPOP(TM) Account Manager
Interface Authentication Server.
(A) ISP agrees to pay SNI the full amount for each customer account
successfully added to the SNI system through the MegaPOP(TM)
Account Manager Interface, within each preceding month, for each
customer account activated from the first (1st) day of the
calendar month through the last day of the calendar month.
(B) ISP agrees to pay SNI the full amount for each of their
customers who have signed onto the MegaPOP(TM) system for any
period of time between 12:00AM on the first (1st) day of the
calendar month through the 11:59:59 PM on the last day of the
calendar month, and who are not activated within the MegaPOP(TM)
Account Manager Interface Authentication Server. These ISP
accounts may gain access to the MegaPOP(TM) system via the
Authentication Server under the direct control and ownership of
the ISP.
5.6. AMOUNT OF CALCULATION FOR CUSTOMERS DELETED.
(Item 5.6. applies only to those accounts activated and managed within
the MegaPOP(TM) Account Manager Interface Authentication Server.) ISP
agrees to pay SNI the full amount for each customer deleted from the
MegaPOP(TM) Account Manager Interface Authentication Server during a
calendar month for customers deleted on or after the first (1st) day of
the calendar month.
5.7. AMOUNT CALCULATION FOR ISDN ONLINE TIME
Charges for online time for ISDN accounts will be calculated based upon a
monthly start point of 12:00:00AM on the 1st day of a month, and ending
with 11:59:59PM on the last calendar day of the same month. ISDN Online
time billing will be rounded down to the nearest minute, and charged in
one minute increments. ISDN Online time will be billed after 150 hours of
online time, per month. All MegaPOP ISDN service is offered at 128K, 2 B
Channel service. Online time is calculated using the total single channel
time, divided by two (2). Monthly online free time, per B Channel, is 150
hours, for a total of 300 channel hours. ISP agrees to pay the agreed
upon hourly rate, for all it's customer's online time, exceeding 150 free
hours per month, per ISP ISDN customer. ISDN online time will
be determined using SNI's log-on accounting server log files. Online time
disputes will be resolved only through the examination of SNI's log-on
accounting server log files. SNI's log-on accounting server log files
will be available to the ISP in the event a dispute occurs.
ARTICLE SIX - NON-EXCLUSIVITY
6.1 ISP and SNI agree to the terms of this Agreement with the understanding
that both ISP and SNI can and may offer similar services to the market as
competitors. ISP and SNI agree to the terms of this Agreement with the
understanding that the right to offer PPP accounts to the market is
nonexclusive and mutually competitive.
ARTICLE SEVEN - NON-SOLICITATION
7.1 ISP and SNI, each to the other, hereby agree that during the term of this
Agreement and for a period of sixty (60) days after termination of this
Agreement, neither party shall solicit any business from any customer(s)
of the other party.
ARTICLE EIGHT - COVENANT NOT TO COMPETE
8.1. STARNET PERSONNEL.
Unless otherwise agreed to by the parties in writing, SNI shall not hire,
employ or engage in any manner the services of any employee, servant,
director, or shareholder of ISP during the term of this Agreement.
ARTICLE NINE - LIMITATION OF LIABILITY
9.1. CONTRACT.
Neither SNI, nor any of its agents, contractors, technicians, or any tier
shall be liable to ISP or an other person or organization in contract for
any general, special, indirect, incidental, or consequential damage
whatsoever, including but not limited to, any lost data, lost time or
other system related damages, damage or loss of property or equipment,
loss of profits or revenues, cost of capital, etc., which arises out of
or is in connection with the services of SNI covered or furnished within
the terms of this Agreement.
9.2. TORT.
Neither SNI nor any of its agents, contractors, technicians or any tier
shall be liable to ISP or any other person or organization for any damage
whatsoever in tort (whether based in negligence, willful conduct or
strict liability) for any act or omission by ISP or any of its servants,
employees, or agents or for any use (other than its own intended
purpose), tampering, or illegal use of the by the customers which arises
out of or is in connection with the services of SNI covered by the terms
of Agreement.
9.3. The remedies of ISP set forth herein are exclusive and the total cumulative
liability of SNI and any of its agents, contractors, technicians, and any
tier with respect to this Agreement, or any thing done in connection
herewith such as performance or breach hereof, or from installation,
configuration, startup / initialization, programming, or any other services
of SNI covered by or furnished under the terms of this Agreement, in tort
(including negligence or strict liability), or otherwise, shall not exceed
the monthly service fee payable to SNI on which such liability is based.
ARTICLE TEN - INDEMNIFICATION
10.1 Notwithstanding anything to the contrary herein contained, each party
agrees to indemnify and hold the other harmless against any and all
liability, loss, claim, judgment, damage and expense (including without
limitation attorney's fees and costs of litigation) incurred or suffered by
the indemnified party as the result of negligence, willful misconduct, or
breach of any terms of this Agreement by the indemnifying party, including
but not limited to claims, liabilities, losses, damage, judgment and
expense which arise out of alleged injury or death of any person or damage
to property of every kind and description. The indemnifying party will not
be responsible for any compromise or settlement made without its written
consent, which consent will not be unreasonably withheld. Each party shall
promptly notify the other in writing of any claim for which its obligated
under this indemnity and for which it may seek indemnification from the
other. The indemnifying party shall have the right to xxx the defense of
any such claim. Both parties shall confer as to and agree on the legal
counsel(s) to be selected in such defense.
ARTICLE ELEVEN - NONDISCLOSURE
11.1. GENERAL.
Both parties agree not to disclose to any third party any proprietary or
confidential information obtained from the other during the negotiation or
performance of this Agreement while the Agreement is in force and for five
years thereafter, including any and all technology and trade secrets now
existing or arising in the future, price, schedules and customer lists.
ARTICLE TWELVE - REMEDIES FOR BREACH
12.1. Except as otherwise limited by Article Nine, if either party breaches any
of the terms and provisions of this Agreement on its part to be performed,
whether such breach pertains to a default in payment or otherwise, the
non-breaching party shall have the right, if it so elects, to serve upon
the breaching party a written notice of its intention to terminate this
agreement this Agreement and the nature of the breach.
(a) The breaching party shall thereupon have a period of thirty (30)
days, after written notice as such has been served, within which to
remedy the breach.
(b) If the breaching party fails to duly remedy the breach, then up on
the expiration of the thirty (30) days this Agreement and any rights
herein granted shall in all respects cease and terminate, and the
breaching party shall have no further rights hereunder.
(c) Notwithstanding such termination, each party's rights arising out of
this Agreement or in connection therewith or existing prior thereto shall
nevertheless continue in full force and effect, including such party's
right to xxx for damages caused to the them by the other party's breach
and failure to cure the same within the aforementioned time period.
12.2. Nothing in this Agreement shall bar either party's right to seek specific
performance of the provisions of this Agreement and injunctive relief
against threatened conduct that will cause it loss or damages under
customary equity rules, including applicable rules for obtaining
restraining orders and preliminary injunctions. Both parties agree that
the non- breaching party may seek such injunctive relief in addition to
such further or relief as may be available at equity by law.
12.3. If a claim for amounts owed by either party is asserted in any judicial
proceeding, or if either party is required to enforce this Agreement in a
judicial or arbitration proceeding, the party prevailing in such
proceeding shall be entitled to reimbursement of its costs and expenses,
including but not limited to, reasonable accounting, attorney's and
attorney assistant fees.
ARTICLE THIRTEEN - TERMINATION
13.1 GENERAL.
Unless otherwise agreed to in writing by ISP and SNI and except as maybe
otherwise provided herein, this Agreement shall automatically terminate
upon the occurrence of any of the following events:
(a) a party files for bankruptcy, or is or becomes insolvent or is
declared insolvent or bankrupt, or makes an assignment or another
arrangement for the benefit of its creditors or is involuntarily the
subject of a bankruptcy filing;
(b) a party has all or any substantial portion of its equity or assets
expropriated by any governmental authorities;
(c) a party is dissolved or liquidated; or
(d) a party disposes of substantially all of its assets.
13.2. DEACTIVATION OF CUSTOMERS.
Upon termination of this Agreement and by no later than the end of the
month succeeding
the calendar month in which this Agreement has been terminated, SNI shall
deactivate all ISP PPP accounts, thereby terminating an ISP customer's
access to the Internet, and SNI shall be entitled to all payments from
ISP in accordance with the terms of this Agreement up to and including
the date of deactivation.
13.3. TERMINATION PENALTY
ISP's Termination of this Agreement, prior to the agreed upon termination
date as described in article 1.1. of this Agreement, will result in a
penalty payment calculated according to the following formula:
Number of Remaining Months of Agreement X Average Monthly Usage Fees for
Prior Months of Agreement
ISP agrees to pay this amount in the event of ISP's Termination of this
Agreement prior to the agreed termination date described in article 1.1.
of this Agreement.
IN WITNESS WHEREOF, the parties hereto have caused this agreement to be executed
in duplicate as of the date set forth hereinbelow.
STARNET, INC.
An Illinois Corporation
By: /s/ Xxxx X. Xxxxxxxxxxxx Date: December 17, 1998
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Signature and Title
ISP
By: /s/ Xxxxx Xxxxx Date: December 17, 1998
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Signature and Title
Chief Technology Officer,
Senior Vice President
Addendum to MegaPOP/Compu-XXXX Agreement
Dated 12/15/1998
This contract is contingent upon the represetnation by MegaPOP that
there is an agreement in place with GTE for use of all GTE Pops.
