INTERACTIVE INTERNET
SERVICES AGREEMENT
THIS AGREEMENT dated January 10, 2001 BETWEEN XXXXXXXXXXX.XXX, INC.
(hereafter called "COMPANY") a South Carolina Corporation with offices located
at 0000 X. Xxxxx Xxx., Xxxxxx Xxxxx, Xxxxx Xxxxxxxx 00000 and (CLIENT)
(hereafter called "CLIENT") a South Carolina (CO TYPE (corp)).
COMPANY is engaged in the business of providing high speed internet
interactive services to Hotels, Motels, Commercial Buildings, Hospitals, and
multi-family dwellings ("MDUs") by means of equipment supplied, installed and
maintained by COMPANY.
CLIENT owns or has the authority to operate and enter contracts as the
agent of the property and on behalf of the Properties owned and managed by
CLIENT, (hereafter called "PROPERTY(S)").
COMPANY will supply and install and operate a Wireless High Speed
Internet Services System which will allow the end user to access the Internet
from their guest rooms, meeting space, offices, condominiums, and public areas.
NOW THEREFORE in consideration of the mutual covenants and promises
herein contained, and for other good and valuable consideration (the receipt and
sufficiency of which is expressly acknowledged by each of the parties hereto),
the parties hereby agree as follows:
1 DEFINITION
1.1 "Internet Services" shall mean interactive multimedia, information,
shopping, on-line or Internet access, on-line or Internet programs,
programming, advertising, ordering, and other interactive services
provided through COMPANY'S Wireless Internet Service.
2 TERM
2.1 The term of this Agreement as it pertains to PROPERTY's is for a (5)
five-years term beginning on the date of this Agreement and will
continue upon renewal, with an annual Agreement thereafter.
2.2 During the term of this Agreement, COMPANY will provide the
administrative offices with Internet Access at no fee to CLIENT or
PROPERTY.
3 COMPANY'S RESPONSIBILITIES
3.1 COMPANY agrees to supply High Speed Wireless Internet access based on
the following pricing schedule; The pricing schedule for hotel guest
usage is based on a usage fee of ten ($10.00) dollars per twenty-four
(24) hour access period, such period to end at noon each day.
3.2 COMPANY agrees to supply High Speed Wireless Internet access to all
meeting rooms and convention areas, at initial pricing of two-hundred
and fifty ($250.00) dollars per full day and One-Hundred and fifty
($150.00) dollars per one-half business day use, plus a reasonable set
up fee to be agreed upon by CLIENT and COMPANY. The COMPANY will review
these initial prices with the client to determine the optimum prices,
recognizing that the CLIENT's management will have current market
experience and the COMPANY will maintain the pricing schedule to keep
the pricing competitive with other comparable services. The
compensation for these services rendered for the CLIENT is at the rate
listed in Exhibit A. Payable on a monthly basis as described within.
3.3 The prices in Section 3.1 and 3.2 may be adjusted by COMPANY and/or
CLIENT to correspond with market conditions.
3.4 COMPANY agrees to provide in-room and other necessary marketing
material to promote the system. COMPANY will provide this material in a
form satisfactory to CLIENT.
3.5 COMPANY agrees to ensure that:
3.5.1 The system is well maintained, and that it operates
reliably and in a state of good mechanical repair
throughout the term of this Agreement;
3.5.2 A field maintenance representative will respond to
emergency calls within 6 hours of Owner calling
COMPANY's call center.
3.5.3 For the duration of this Agreement it will maintain
adequate liability insurance which will protect both
COMPANY and CLIENT from claim under any applicable
workers' compensation or employee benefit acts, from
claims for damage due to bodily injury to employees
and others and from claims for damage to property.
The loss or damage to person or property being
insured against by COMPANY shall be restricted to
loss or damage related to the installation,
maintenance, removal or replacement of the High Speed
Internet Equipment or provided to CLIENT by COMPANY
along with an acknowledgment signed by the assignee
which identifies the assignee and declares its
willful assumption of the rights and obligations of
COMPANY to CLIENT under this Agreement part thereof.
3.5.4 The High Speed Wireless Internet service and
COMPANY'S billing of it, is at all times in
compliance with all federal, state and local laws,
requirements and ordinances.
4 INTERNET CONTENT DISCLAIMER
4.1 CLIENT recognizes the Internet is a global network of computers
worldwide. CLIENT recognizes that the SWOMI system provides access to
Internet resources, however SWOMI does not and cannot control the
information available via the Internet, including Internet sites that
may contain offensive, controversial, or inaccurate material. The
selection and use of information accessed via the Internet is the sole
responsibility of the guest(s) and/or consumer, subject to state and
federal law, including copyright laws. Parents and/or Legal Guardians
are responsible for monitoring their children's use of the Internet.
SWOMI adheres to all state and federal laws concerning the Internet
and is committed to providing access to electronic information
technologies and networks for consumers of its product and services.
The guest(s) and/or consumers rent SWOMI at their own risk and will
hold harmless the COMPANY (providers) and any and all associates that
provide the SWOMI system.
5 CLIENT'S RESPONSIBILITIES
5.1 Before COMPANY begins to install the High Speed Wireless Internet
Equipment, CLIENT shall make the following available in the PROPERTY
for use by COMPANY:
5.1.1 Secured, non-public area(s) (work rooms, roofs,
basements, Telco closets, electrical chases, etc.) in
PROPERTY deemed by COMPANY to be satisfactory for the
installation of the equipment required to facilitate
the operation of the COMPANY's High Speed Internet
System;
5.1.2 Access to Telco or communications closets, guest
rooms, work rooms, roof access and all hallways and
crawl spaces throughout the PROPERTY for
installation, testing and operation of the High Speed
Wireless Internet System;
5.1.3 An area near the front-desk of PROPERTY for the
placement of materials (approved by CLIENT)
advertising the High Speed Internet System;
5.1.4 A source and supply of electricity to the COMPANY's
System; and
5.1.5 Reasonable access and assistance to and around the
property during installation of the system.
The above facilities shall be made available to COMPANY for the term of this
Agreement.
5.2 CLIENT agrees not to allow access to COMPANY's equipment by any party
other than COMPANY's designated representative.
6 OPERATION AND MAINTENANCE OF THE COMPANY'S HIGH SPEED INTERNET SYSTEM
6.1 If requested by COMPANY, changing the in-room guides, and other hotel
approved advertising material supplied, promptly upon receipts of such
items from COMPANY;
6.2 Conducting routine surveillance of the COMPANY's System, to ensure that
it is operating properly;
6.3 Promptly notifying COMPANY's maintenance call center in the event that
any defect or malfunction occurs in the High Speed Internet System or
any part thereof.
7 COMPANY'S OBLIGATIONS WITH RESPECT TO THE SYSTEM EQUIPMENT
7.1 Upon the expiration or termination of this Agreement, COMPANY shall
have thirty (30) days in which to remove the System Equipment from the
PROPERTY.
7.2 COMPANY shall ensure that its system is maintained in a state of good
repair through the duration of this Agreement. Any part of the COMPANY
system equipment which is defective or which fails to meet a reasonable
standard of signal transmission or operation shall be repaired or
replaced by COMPANY, at its expense.
8 FINANCIAL MATTERS
8.1 The CLIENT and PROPERTY will charge the Internet access fees, for
meeting and/or conference rooms, to conference host at the time of
issuing the Wireless Internet Access Transceivers. COMPANY will charge
for the Internet access via an e-commerce transaction to guests using
their own computers.
8.2 The CLIENT and COMPANY have no obligation to share any confidential
banking information regarding collection of Internet access revenue
with the other. COMPANY will provide a monthly guest usage report to
CLIENT in a timely manner
9 EXCLUSIVITY, FIRST RIGHT OF REFUSAL, AND ASSIGNMENT
9.1 During the term of this Agreement CLIENT agrees that COMPANY shall be
an exclusive provider of Wireless Internet Services to hotel guests.
The CLIENT shall not authorize or share revenue with any other person
or entity providing Wireless Internet Services to Property. In the
event PROPERTY desires to offer additional Internet Services not then
offered by COMPANY, COMPANY shall consider in good faith the financial
terms upon which COMPANY may be willing to implement such services at
the PROPERTY.
9.2 With thirty (30) days written notice, COMPANY AND CLIENT may assign its
interest in this Agreement with the prior written consent of CLIENT or
PROPERTY, provided that the party acquiring COMPANY's interest in this
Agreement agrees in writing to assume the liabilities and obligations
under this Agreement and acquires ownership of the PROPERTY.
10 CLIENT OWNERSHIP OF RIGHTS
10.1 CLIENT acknowledges that COMPANY is the sole owner of all right, title
and interest in and to the System and all improvements and enhancements
thereof, including all intellectual property rights, and that by virtue
of this Agreement CLIENT's PROPERTY acquires no rights whatsoever
thereto, CLIENT and PROPERTY shall not at any time claim that the
System constitutes a fixture of the Site. Without limiting the
foregoing, all customer information developed from customer orders
placed using the System shall be the sole property of COMPANY. COMPANY
shall own all improvements and enhancements of the System made during
the term of this Agreement, and PROPERTY hereby assigns and quitclaim
to COMPANY any and all rights of CLIENT and PROPERTY therein and
thereto.
10.2 Any client guest names and addresses gained from use of the system
shall not be shared, sold, rented or used in any manner that could lead
to their use in the Hospitality, Hotel or Rental Industry. Should such
use occur, it will be sufficient grounds to terminate the Agreement
immediately upon notification of COMPANY and could lead to any other
remedies available under the law.
11 GENERAL PROVISIONS
11.1 The laws of the state of South Carolina constitute the proper law of
this Agreement. The Courts of South Carolina shall have exclusive
jurisdiction over all matters arising under this Agreement and will be
the forum in which to settle any dispute that arises out of this
Agreement.
11.2 This Agreement is binding upon the parties and their respective
successors or permitted assigns.
11.3 Should any provision of this Agreement be unenforceable, uncertain or
adjudged to be invalid, then the offending provision shall be struck
from this Agreement as if it were never included herein and the
remainder of the Agreement shall stand as a binding and enforceable
contract existing between the parties.
11.4 This Agreement constitutes the whole of the Agreement between the
parties.
11.5 This Agreement may only be amended by instrument in writing signed by
each of the parties hereto.
11.6 Neither COMPANY nor CLIENT shall be held liable for the failure to
perform or a delay in performing any of its obligations hereunder if
such failure or delay is the result of any legal restriction, labor
dispute, strike, boycott, flood, fire, public emergency, revolution,
riot war, interruption in the supply of electricity or any other cause,
including acts of God, which is beyond the control of the parties
hereto.
12 MEDIATION AND ARBITRATION
12.1 If a dispute, controversy, or claim (whether based upon contract, tort,
statute, common law, or otherwise) (collectively a "Dispute") arises
from, or relates directly or indirectly to, the subject matter hereof,
and if the Dispute cannot be settled through direct discussions, the
parties shall first endeavor to resolve the Dispute by participating in
a mediation administered by the American Arbitration Association (the
"AAA") under its Commercial Mediation Rules before resorting to
arbitration. Thereafter, any unresolved Dispute shall be settled by
binding arbitration administered by the AAA in accordance with its
Commercial Arbitration Rules and judgement on the award rendered by the
arbitrator, after the review rights set forth below have been
exhausted, may be entered in any court having jurisdiction. The
arbitration proceedings shall be conducted in Horry County, South
Carolina, on an expedited basis before a neutral arbitrator (or
multiple arbitrators if required by the Commercial Arbitration Rules)
who is a member of the Bar of the State of South Carolina and has been
actively engaged in the practice of law for at least fifteen (15)
years, specializing in commercial transactions with substantial
experience in the subject matter of this Agreement. Any attorney who
serves as an arbitrator shall be compensated at a rate equal to his or
her current regular hourly billing rate. Upon the request of either
party, the arbitrator's award shall include findings of fact and
conclusions of law but the same may be in summary form. Either party
may seek review of the arbitrator's award before an arbitration review
panel comprised of three (3) arbitrators qualified in the same manner
as the initial arbitrator (or arbitrators) as set forth above by
submitting a written request to the AAA. The right of review shall be
deemed waived unless requested in writing within then (10) days of the
delivery of the initial arbitrator's award. The arbitration review
panel shall be entitled to review all findings of fact and conclusions
of law in whatever manner it deems appropriate and may modify the award
of the initial arbitrator in its discretion. Unless otherwise deemed
appropriate by the arbitrator(s), the prevailing party shall be
entitled to an award of all reasonable out-of-pocket costs and expenses
(including attorney's and arbitrators' fees) related to the entire
arbitration proceeding (including review if applicable).
AGREED TO AND ACCEPTED:
By: _______________________ Witness by:___________________
Title:______________________ Date:_________________________
Date:_______________________
XXXXXXXXXXX.XXX
By: _______________________
Xxxx Xxxxx
Title: Managing Director
Date:
EXHIBIT A
INTERNET SERVICES REVENUE SHARING Agreement
CLIENT or PROPERTY will receive ten percent (10%) of Net Revenues received by
COMPANY from Internet access fees at the PROPERTY for usage between zero (0) and
ten percent (10%) throughout the term of this Agreement.
CLIENT or PROPERTY will receive fifteen percent (15%) of Net Revenues received
by COMPANY from Internet access fees at the PROPERTY for usage between eleven
percent (11%) and fifteen percent (15%) throughout the term of this Agreement.
CLIENT or PROPERTY will receive twenty percent (20%) of Net Revenues received by
COMPANY for Internet access fees at the PROPERTY for usage between sixteen
percent (16%) and up throughout the term of this Agreement.
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Percentage of Guest Internet Usage Net Revenue Share for Hotel
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0 - 10 10%
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11 - 15 15%
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16 + 20%
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GUEST INTERNET USAGE PERCENTAGE for any month is calculated as the number of
paid guest-room usage in such month divided by the product of the number of
rooms in the PROPERTY times the number of days in such month. "NET REVENUES" is
defined as all revenues received form guest Internet access at PROPERTY less
fees' charge to CLIENT by Internet feed providers.
Other Sources of Revenue (to be calculated on a monthly basis):
1. Meeting or Conference Rooms gross revenue: $100.00 per day.
