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WHOLESALE USAGE AGREEMENT
PSINet Inc. Purchaser: Rocky Mountain Internet, Inc.
000 Xxxxxxx Xxxx Xxxxx Address: 0000 00xx Xx.
Xxxxxxx, XX 00000 Suite 3000
Xxxxxx, XX 00000
Phone:000.000.0000 Phone: 303. 672.0706
Facsimile:703.397.5318 Facsimile: 303. 672.0711
xxxx@xxx.xxx Electronic Mail: xxxxx@xxx.xxx
Business Contact: Xxxxx Xxxxxxxxx Business Contact: Xxxxx Loud
Title: Regional Sales Manager Title: VP, Operations
Phone: 703.904.4100 x1375
Technical Contact: Xxx Xxxxxx Technical Contact: Xxxxxxx Xxxxxxx
Title: ISP Support Engineer
Phone: 000.000.0000 Title: Vice President
Phone: 303. 672.0727
Fax 303. 672.0711
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THIS AGREEMENT is made by and between PSINet Inc., a corporation incorporated
under the laws of the State of New York, ("PSINet") and Rocky Mountain Internet,
Inc. ("Retailer") in order for Retailer to obtain from PSINet access to the
PSINet's network and the Internet for the benefit of Retailer's individual
customers desiring dialup or "switched" network access ("Access") as further
described below. In consideration of the mutual promises and covenants
contained herein, the parties agree, intending to be legally bound, as follows:
1. DEFINITIONS. The following terms shall have the following meanings for
purposes of this Agreement:
1.1 "AUTHORIZED USER" shall mean any person authorized by a Subscriber to
have an account on a Host. Retailer may not permit any person or entity
other than an Authorized User to Access to the Network, except with the
written consent of PSINet. No person may be authorized to use the Network
by means of a connection between a Host owned or leased by a Subscriber and
a Host owned or leased by a person other than a Subscriber.
1.2 "EFFECTIVE DATE" of this Agreement is the date accompanying the last
party to sign's signature.
1.3 "FORECAST" shall be the four (4) month rolling forecast Retailer
provides to PSINet on a monthly basis of the estimated number of
Subscribers that will be served by each POP.
1.4 "HOST" shall mean a computer with a network (or IP) address.
1.5 "XXXX" is any name, logo, trade name, trademark, copyright, service
xxxx or other intellectual property right owned by PSINet or its Retailer.
1.6 "NETWORK" shall mean the combination of computer hardware, computer
software programs and data transmission facilities operated by PSINet (or
its duly authorized subcontractors) which will permit computers operated by
Subscribers to communicate with computers at remote locations which are
operated by others via the TCP/IP communications protocol and to provide
access to Internet.
1.7 "POP" shall mean a Network point-of-presence where PSINet equipment
will be located and these POPs will be positioned throughout the world in
order to provide Authorized Users Access via telephone calls.
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1.8 "SUBSCRIBER" shall mean any individual person authorized by Retailer to
have Access to the Network, although this Access is not to be used with
Local Area Network (LAN) applications. Retailer may not permit any entity
other than a Subscriber to have Access to the Network, except with the
written consent of PSINet.
2. PSINET OBLIGATIONS.
2.1 GENERAL. PSINet agrees to provide Retailer with Access for Subscribers
to the Network and the Internet. The fees to be paid by Retailer to PSINet
for such Access services are set forth below in Section 4.
2.2 PROVISION OF ACCESS. Throughout the term of this Agreement, PSINet
shall provide Subscribers with Access at the levels then provided and
supported by PSINet. A recent estimated listing of Network POPs can be
retrieved through access to PSINet's world-wide web site at
'XXXX://XXX.XXX.XXX'. PSINet reserves the right to install new POPs and/or
to close existing POPs as it, in its sole discretion, deems appropriate.
In the event PSINet deems it necessary to close an existing POP, PSINet
shall provide Retailer with sixty (60) days written notice thereof.
Retailer may order such Access on behalf of its present or future
Subscribers and there shall be no limit on the number of Subscribers who
may use the Network; provided, however, that PSINet may refuse service to
Retailer because there is insufficient capacity on the Network or in the
POP to provide the Access amount requested. In the event PSINet determines
there to be such lack of capacity, then the provisions of Section 4.10
herein do not apply to the effected POP during any month for which such
insufficient capacity occurs.
2.3 ISDN SERVICE. PSINet shall also make ISDN 64k and 128k Internet
connection services available to Retailer for Subscribers. The fees to be
paid by Retailer for such services are set forth below.
2.4 ***
2.5 REPORTS AND INFORMATION REGARDING SERVICE.
2.5.1 ACCESS TO NETWORK MONITORING SYSTEMS. PSINet shall provide
Retailer with read-only access to all applicable network monitoring
systems used by PSINet to monitor the Network.
2.5.2 PSINET NETWORK OUTAGES. PSINet shall provide to Retailer
prompt notification of any Network outages that affect Subscribers.
When possible, at least three days in advance notice of planned
outages shall be given to Retailer so that Subscribers may be alerted.
2.6 PSINET TECHNICAL SUPPORT. PSINet agrees to provide Retailer, at no
additional charge, reasonable back-end technical support and problem
escalation support for Access and Network problems. However, PSINet is not
obligated to provide technical support and problem escalation support to
Subscribers.
2.7 TERMINATION OF ACCESS. PSINet shall terminate the Access rights of
any Subscriber as soon as is reasonably practicable upon written notice
from Retailer to do so or upon mutually agreed upon electronic process with
receipt confirmed, but shall have no liability in connection therewith.
Further, Retailer and its Subscribers are required to comply with PSINet's
Net-Abuse Policy ("Policy") as currently set forth on PSINet's Web site
(xxxx://xxx.xxx.xxx) and as the Policy may be modified by PSINet in its
sole discretion from time to time. Any content, material, message, or data
made available or transmitted through the Network, wherever it is sent
from, viewed, received, or retrieved, that is in violation of (i) any
local, state, federal or international law, regulation or treaty; (ii) the
Policy; or (iii) any community standard or accepted Internet policy is
prohibited. In the event of violation of the foregoing by any Subscriber,
PSINet will advise Retailer accordingly, and PSINet reserves the right, in
its sole discretion, to terminate such Subscribers Access immediately with
written notice to Retailer. In the event of violation of the foregoing by
Retailer, PSINet may deem such violation a material breach of this
Agreement and may, in its sole discretion, terminate this Agreement with
written notice to Retailer, but without the cure period specified in
Section 5 below.
3. RETAILER OBLIGATIONS.
3.1 RETAILER RESPONSIBILITY FOR ITS SUBSCRIBERS. Retailer shall be
responsible for all customer support, pricing and service plans, billing
and collections with respect to its own Subscribers.
3.2 RETAILER CONNECTION TO THE NETWORK. Retailer shall provide, at its
own expense, the telecommunications circuit for its connection to the
Network which shall run between the best suited PSINet POP (as determined
by
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PSINet) and the Retailer's operations center (which includes the local
telephone company or Competitive Access Provider circuits). In addition,
Retailer shall provide an estimate of the traffic it anticipates between
Retailer's network and PSINet's Network.
3.3 SUBSCRIBER EQUIPMENT. PSINet shall not be responsible for the
installation, operation or maintenance of any computer equipment or
computer software programs provided by Retailer or any Subscriber.
3.4 ***
3.5 USE OF MARKS. Neither party is authorized through this Agreement to
use the other party's Marks in connection with their sales, advertisements
and promotion of its services to Subscribers, except in materials either
provided or approved by the authorized user of the xxxx xxxxx to it's use.
Each party shall send to the other party a copy of any printed material
using the other party's Xxxx or other copyrighted material, and the
authorized party shall have the right to disapprove such use (although
approval shall not be unreasonably withheld). Upon termination of this
Agreement, each party shall cease to use any of such Marks or copyrighted
material and shall, within a reasonable time agreeable to the authorized
party, remove any reference to authorized party from its advertising and
promotional material.
3.6 ***
4. PRICE AND PRICING TERMS.
4.1 ***
4.2 ***
The applicable Base Charge above is to be applied to all Subscribers
irrespective of the rate that previously was applied to that group of
Subscribers. For example, if there are a sufficient number of Subscribers
to satisfy the second-tier pricing requirement, the applicable Base Charge
shall apply to all Subscriber Base Charges. Should the amount of
Subscribers subsequently fall below such tier, incurring a higher Base
Charge, the applicable Base Charge shall be adjusted to the higher Base
Charge for all Subscribers as indicated in this section.
The payment to be made for the initial month of Access for any Subscriber
shall include (i) an amount equal to the applicable Base Charge for such
initial month, prorated in the case of a partial month, and (ii) an amount
equal to such Base Charge as payment in advance for the next month of
Access. If one of the Subscribers cancels service within any month, there
will either be no charge or a pro-rated charge depending upon the time of
that Subscriber's service cancellation within that month.
4.3 ADJUSTMENTS TO BASE CHARGE.
4.3.1 **.
4.3.2 ***
4.3.3 ADDITIONAL ADJUSTMENT. Once the number of Subscribers using
the Network exceeds 150,000, the parties will negotiate in good faith
to agree upon an appropriate adjustment to the applicable Base Charge.
4.4 MINIMUM COMMITMENT.
4.4.1 ***
4.4.2 ***
4.5 TAXES. Retailer shall be liable for and shall reimburse PSINet for
all taxes and related charges however designated resulting from the
transactions contemplated hereby (except those relating to PSINet's gross
income), including federal, state, provincial or local sales, use or
value-added taxes (VAT) and excise taxes, imposed in connection with or
arising from the provision of Access.
4.6 INVOICES. PSINet shall invoice Retailer monthly in advance for all
charges under this Agreement. All invoices will be payable within thirty
(30) days of date of invoice. Invoices not paid by their due date shall be
subject to a 1.5% per month interest fee, or the maximum extent allowed by
applicable laws, whichever is less, on all past-due
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balances. In the event PSINet incurs additional fees as a result of any
collection activity, such as collection agencies or legal fees, Retailer
shall reimburse PSINet for all such fees. In the event Retailer shall fail
to pay PSINet any amount due under this Agreement, PSINet, in addition to
charging applicable delinquency fees, may discontinue providing Access to
Retailer and its Subscribers upon ten (10) days prior written notice by
overnight courier or certified mail to Retailer and chance to cure. PSINet
shall resume providing Access immediately upon receipt of such payment, and
in such event Retailer shall pay PSINet a reasonable reconnection fee.
4.7 ***
5. TERM/EXTENSIONS/TERMINATION. The term of this Agreement shall be three (3)
years, commencing on the last day of the Ramp Period as defined above, and,
unless either party notifies the other in writing not less than one-hundred
eighty (180 days) prior to the end of the initial term or any extension thereof,
this Agreement shall be automatically renewed annually thereafter for a period
of one year.
Either party may terminate this Agreement if such other party has materially
breached this Agreement and has failed to cure such breach within thirty (30)
days after receiving written notice clearly specifying such breach; provided,
however, that this notice period shall not apply to a termination by PSINet in
accordance with the provisions of Section 2.7, 4.4.2 and/or 4.6.
6. WARRANTIES EXCLUDED. EXCEPT AS EXPRESSLY PROVIDED HEREIN, PSINET MAKES NO
WARRANTIES IN CONNECTION WITH ITS NETWORK OR THE PROVISION OF ACCESS AS
CONTEMPLATED HEREIN, WHETHER WRITTEN OR ORAL, STATUTORY, EXPRESS OR IMPLIED,
INCLUDING WITHOUT LIMITATION THE WARRANTY OF MERCHANTABILITY, THE WARRANTY OF
FITNESS FOR A PARTICULAR PURPOSE OR USE AND NON-INFRINGEMENT OF THIRD PARTY
RIGHTS. RETAILER'S SOLE AND EXCLUSIVE REMEDY SHALL BE PSINET'S OBLIGATION TO
ADJUST THE FEES PAYABLE BY RETAILER AS SET FORTH ELSEWHERE HEREIN.
7. LIMITATION OF LIABILITY. NOTWITHSTANDING ANYTHING CONTAINED IN THIS
AGREEMENT TO THE CONTRARY, THE PARTIES AGREE THAT PSINET SHALL IN NO EVENT BE
LIABLE TO RETAILER, ITS SUBSCRIBERS OR ANY OTHER PERSON FOR ANY ACTUAL, DIRECT,
INDIRECT, CONSEQUENTIAL, SPECIAL, INCIDENTAL, RELIANCE, PUNITIVE OR ANY OTHER
DAMAGES OF ANY KIND OR NATURE WHATSOEVER (INCLUDING, WITHOUT LIMITATION, DAMAGES
FOR THE LOSS OF DATA, GOODWILL OR PROFITS) REGARDLESS OF THE FORESEEABILITY
THEREOF, ARISING OUT OF THE PROVISION OF ACCESS OR IN ANY WAY ARISING OUT OF
THIS AGREEMENT, WHETHER IN AN ACTION ARISING OUT OF BREACH OF CONTRACT, BREACH
OF WARRANTY, DELAY, NEGLIGENCE, STRICT TORT LIABILITY, PATENT MATTERS OR ANY
OTHER THEORY. NO ACTION OR PROCEEDING AGAINST PSINET MAY BE COMMENCED MORE THAN
TWO YEARS AFTER THE SERVICES ARE RENDERED. THIS CLAUSE SHALL SURVIVE FAILURE OF
AN EXCLUSIVE REMEDY. PSINET'S TOTAL LIABILITY FOR GROSS NEGLIGENCE DURING THE
LIFETIME OF THIS AGREEMENT SHALL IN NO EVENT EXCEED ONE HUNDRED TWENTY-FIVE
THOUSAND DOLLARS ($125,000) IN THE AGGREGATE.
8. INDEMNIFICATION OF PSINET. RETAILER SHALL INDEMNIFY AND HOLD HARMLESS PSINET
AND PSINET'S DIRECTORS, OFFICERS, EMPLOYEES, AGENTS AND ADVISORS FROM AND
AGAINST ANY AND ALL CLAIMS OF OTHER PERSONS OR ENTITIES ARISING OUT OF MATERIAL,
DATA, INFORMATION OR OTHER CONTENT TRANSMITTED BY SUBSCRIBERS OR OTHER ACTS OR
OMISSIONS OF RETAILER AND/OR ITS SUBSCRIBERS.
9. ***
10. MISCELLANEOUS.
10.1 INDEPENDENT PARTIES/NO AGENCY. The relationship of PSINet and
Retailer shall be that of independent third parties. Except as otherwise
expressly provided in this Agreement, this Agreement does not constitute
either party as the agent or legal representative of the other party and
does not create a partnership or joint venture between the parties. Except
as otherwise expressly provided in this Agreement, neither party shall have
any authority to contract for or bind any other party in any manner
whatsoever. This Agreement confers no rights of any kind upon any third
party.
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10.2 FORCE MAJEURE. PSINet shall not be liable for failure to fulfill
its obligations hereunder if such failure is due to causes beyond its
reasonable control, including, without limitation, actions or failures to
act of Retailer or any Subscriber, acts of God, fire, catastrophe,
governmental prohibitions or regulations, viruses which did not result from
the acts or omissions of PSINet, its employees or agents, national
emergencies, insurrections, riots or wars, or strikes, lockouts, work
stoppages or other labor difficulties. The time for any performance
required hereunder shall be extended by the delay incurred as a result of
such act of force majeure, and PSINet shall act with diligence to correct
such force majeure.
10.3 DELAYS OR OMISSIONS. No delay or omission to exercise any right,
power or remedy accruing to a party under this Agreement shall impair any
such right, power or remedy of such party nor shall it be construed to be a
waiver of any such breach or default, or an acquiescence therein, or of or
in any similar breach or default thereafter occurring; nor shall any waiver
of any single breach or default be deemed a waiver of any other breach or
default theretofore or thereafter occurring. Any waiver, permit, consent
or approval of any kind or character on the part of either party of any
breach or default under this Agreement, or any waiver on the part of either
party of any provisions or conditions of this Agreement must be made in
writing and shall be effective only to the extent specifically set forth in
such writing. All remedies, either under this Agreement or by law or
otherwise afforded to a party, shall be cumulative and not alternative.
10.4 BENEFIT AND ASSIGNMENT. No party hereto shall assign this Agreement,
in whole or in part, whether by operation of law or otherwise, without the
prior written consent of the other parties hereto (which consent shall not
be unreasonably delayed or withheld); and any purported assignment in
violation of the foregoing shall be void. This Agreement shall be binding
upon and shall inure to the benefit of the parties hereto and their
respective successors and assigns as permitted hereunder. No person or
entity other than the parties hereto is or shall be entitled to bring any
action to enforce any provision of this Agreement against any of the
parties hereto, and the covenants and agreements set forth in this
Agreement shall be solely for the benefit of, and shall be enforceable only
by, the parties hereto or their respective successors and assigns as
permitted hereunder.
10.5 ADDITIONAL ACTIONS, DOCUMENTS AND INFORMATION. Each of the parties
hereto agrees that it will, at any time, prior to, at or after the date
hereof, take or cause to be taken such further actions, and execute,
deliver and file or cause to be executed, delivered and filed such further
documents and instruments and obtain such consents, as may be reasonably
requested in order to fully effectuate the purposes, terms and conditions
of this Agreement.
10.6 NOTICES.
(a) All notices and other communications required or permitted
hereunder shall be in writing and shall be mailed by certified or
registered mail (return receipt requested), express air courier,
charges prepaid, or facsimile addressed as follows:
To Retailer: as specified above.
To PSINet:
PSINet Inc. with copy to PSINet Inc.
000 Xxxxxxx Xxxx Xxxxx 000 Xxxxxxx Xxxx Xxxxx
Xxxxxxx, Xxxxxxxx 00000 Xxxxxxx, Xxxxxxxx 00000
Facsimile: 703.397.5318 Facsimile: 703.904.4200
Attn: Xxxx Xxxxx, Vice President, Carrier
& ISP Services Attn: General Counsel
or to such other address as either party shall have furnished to the
other in writing.
(b) If a notice is given by either party by certified or registered
mail, it will be deemed received by the other party on the third
business day following the date on which it is deposited for mailing.
If a notice is given by either party by air express courier, it will
be deemed received by the other party on the next business day
following the date on which it is provided to the air express courier.
If a notice is given by facsimile, it will be deemed received by the
other party after confirmation of receipt. Notwithstanding the
foregoing, any payments made under this Agreement shall be deemed
received only when actually received.
10.7 COMPLIANCE WITH LAW. Retailer is responsible for complying with all
applicable rules, regulations, statutes, codes, ordinances and other
requirements, whether federal, state, provincial, local, international or
otherwise in connection with the matters contemplated by this Agreement.
10.8 SEVERABILITY/SURVIVAL/WAIVERS. In case any provision of this
Agreement shall be invalid, illegal or unenforceable, such provision shall
be construed so as to render it enforceable and effective to the maximum
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extent possible in order to effectuate the intention of this Agreement; and
if such provision shall be wholly invalid, illegal or unenforceable, the
validity, legality and enforceability of the remaining provisions hereof
shall not in any way be affected or impaired thereby. The parties' rights
and obligations that, by their nature, would continue beyond the
termination, cancellation, or expiration of this Agreement, shall survive
such termination, cancellation or termination. The waiver or failure of
either party to exercise in any respect any right provided for in this
Agreement shall not be deemed a waiver of any further right under this
Agreement.
10.9 TITLES AND SUBTITLES. The titles of the Sections of this Agreement
are for convenience of reference only and are not to be considered in
construing this Agreement.
10.10 GOVERNING LAW AND VENUE. Customer agrees to the non-exclusive
jurisdiction of the federal and state courts of the Commonwealth of
Virginia for any action or proceeding arising out of or in relation to this
Agreement. This Agreement shall be governed by the substantive law of the
Commonwealth of Virginia.
10.11 ENTIRE AGREEMENT/AMENDMENTS. This Agreement represents the complete
agreement and understanding of the parties with respect to the subject
matter herein, and supersedes any other agreement or understanding, written
or oral. In the event of any conflict arising between Customer's purchase
order terms and this Agreement, this Agreement shall take precedence. This
Agreement may be modified only in writing signed by both parties.
Both PARTIES REPRESENT AND WARRANT THAT THEY HAVE FULL CORPORATE POWER AND
AUTHORITY TO EXECUTE AND DELIVER THIS AGREEMENT AND TO PERFORM THEIR OBLIGATIONS
HEREUNDER, AND THAT THE PERSON WHOSE SIGNATURE APPEARS BELOW IS DULY AUTHORIZED
TO ENTER INTO THIS AGREEMENT ON BEHALF OF THE PARTY.
IN WITNESS WHEREOF, THE PARTIES HAVE ENTERED INTO THIS AGREEMENT AS OF THE DATE
SET FORTH:
Xxxxx X. Loud, Vice President
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Authorized Retailer Representative/Title (please type or print)
/s/ Xxxxx X. Loud 3/10/98
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Retailer Signature Date
Xxxx X. Xxxxx
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Authorized PSINet Representative (please type or print)
/s/ Xxxx X. Xxxxx 3/11/98
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PSINet Representative Signature Date
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PSINET WHOLESALE USAGE AGREEMENT 6/16/97
