MANAGEMENT CONSULTING SERVICES AGREEMENT
This Management Consulting Services Agreement (hereinafter "Agreement") is
made and entered into as of this 17th day of June, 1997 (The "Effective
Date") by and between ACSI Advanced Data Services, Inc., a Delaware
Corporation, ("ACSI") and WebSite Management Company, Inc., doing business as
FLASHNET Communications ("FLASHNET"), a Texas Corporation.
WHEREAS, FLASHNET is a corporation with experience in the provision of
internet services to commercial customers;
WHEREAS, ACSI is a corporation engaged in the provision of local
telecommunications services;
WHEREAS, ACSI wishes to utilize the services of FLASHNET in the development
of certain specialized product offerings, and in the creation of an
integrating billing process for such product offerings;
NOW THEREFORE, in consideration of the mutual promises, covenants, and
Agreements set forth below, the parties agree as follows:
1. TERM AND TERMINATION.
1.1. This Agreement shall be as of the Effective Date specified
above, and shall remain in full force and effect for a period of one year.
1.2. This Agreement may be terminated by FLASHNET only for failure
of ACSI to make payments as provided herein.
1.3. This Agreement may be terminated by ACSI upon 60 days advance
written notice to FLASHNET, for FLASHNET's failure to fulfill any of its
consulting service responsibilities or to meet any of its Performance
Criteria (as defined below) provided if such failure is continuing at the end
of such period.
1.4. Upon any termination of this Agreement, both parties agree to
return all data, materials, and properties belonging to the other by the
termination date.
2. PRICES. The flat rate fee for one year of management consulting services
provided for hereunder shall be one million dollars ($1,000,000.00).
3. FLASHNET'S RESPONSIBILITIES. FLASHNET shall provide ACSI with management
consulting services consisting of advice as to:
3.1. the structuring of special offerings to other potential
internet service providers;
3.2. testing and implementation of the packaging and provisioning
of a customized or bundled package consisting of ACSI's local
service offering and FLASHNET's internet service offering to
be offered for sale to FLASHNET's customer base;
3.3. integrated billing services for certain ACSI data customers
and for the customized or bundled package of ACSI/FLASHNET
product offerings;
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3.4. management of all moves, adds and changes as relates to any
and all local telephone service that FLASHNET purchases from
ACSI;
3.5. methodology for joint sales calls by FLASHNET with ACSI for
special offerings to ACSI customers; and
3.6. development of a product offering for consumer internet
services in markets where neither FLASHNET nor ACSI currently
provide services.
4. ACSI RESPONSIBILITIES. ACSI shall cooperate with FLASHNET by providing
access to all information, materials, personnel, equipment, and networks as
may be reasonably necessary for FLASHNET to perform its duties as defined
hereunder and shall comply with reasonable requests of FLASHNET in the
performance of its duties hereunder.
5. PAYMENT SCHEDULE. Contingent upon FLASHNET's successful fulfillment of
the Performance Criteria, as described in section 6, or ACSI's waiver of the
same, ACSI shall make payment in US dollars to FLASHNET in the following
increments:
5.1. two hundred and fifty thousand dollars ($250,000.00) paid
before June 30, 1997;
5.2. five hundred thousand dollars ($500,000.00) paid on or before
July 15, 1997; and
5.3. two hundred and fifty thousand dollars ($250,000.00) paid on
or before September 1, 1997.
6. PERFORMANCE CRITERIA. FLASHNET's successful performance of its
obligations under this Agreement shall be measured by FLASHNET's fulfillment
of the following Performance Criteria (herein so called):
6.1. Within thirty (30) days of the Effective Date of this
Agreement, FLASHNET will provide ACSI with a document that
defines a suggested process to be used in structuring special
offerings to other internet service providers.
6.2. Within sixty (60) days of the Effective Date of this
Agreement, FLASHNET will provide ACSI with a written proposal
describing a suggested customized or bundled package
consisting of ACSI/FLASHNET product offerings.
6.3. Within ninety (90) days of the Effective Date of this
Agreement, FLASHNET will submit to ACSI a written proposal
describing a process which may be used as an integrated
billing system for the customized or bundled product offering
referred to above.
6.4. Within one hundred twenty (120) days of the Effective Date of
this Agreement, FLASHNET will submit to ACSI a tentative
marketing plan which may be used for a consumer internet
services offering to be made available in new markets.
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FLASHNET will be deemed to have fulfilled such individual Performance
Criteria listed above so long as the document or written proposal therein
mentioned is provided within the specified time frame; regardless of whether
the relevant offering, product, system or plan is actually implemented,
accepted or created by ACSI (and FLASHNET, where applicable). Each document
or written proposal referenced above shall be in such format, content or
length and shall have such other characteristics as FLASHNET shall determine
appropriate in its reasonably exercised sole and absolute discretion.
7. TAXES, DUTIES AND SIMILAR LIABILITIES. ACSI shall be liable for all
taxes or duties applicable to any products or services purchased from
FLASHNET under this Agreement.
8. CONFIDENTIALITY AND NON-DISCLOSURE. Except as authorized in advance by
the other party, neither FLASHNET nor ACSI shall disclose confidential or
proprietary information that is property of the other. Confidential or
proprietary information means confidential business, technical or data
processing information, trade secret, or other proprietary information
clearly identified by the providing party as confidential or proprietary
information acquired by the receiving party in the course of carrying out the
tasks defined in this Agreement. Confidential or proprietary information does
not include matters of public knowledge previously disclosed by the owning
party, information disclosed under operation of law, information in the
possession or within the knowledge of the receiving party prior to receipt
from the providing party, or information disclosed by either party with the
prior written consent of the other.
9. FORCE MAJEURE. Neither party shall be liable or deemed to be in default
for any delay or failure in performance or disruption in service under this
Agreement resulting directly or indirectly by reason of fire, flood,
earthquake, explosion or other casualty, strikes or labor disputes,
disruptions of telecommunications systems, inability to obtain supplies or
power, war or other violence, any law, order, proclamation, regulation,
ordinance, demand or requirement of any government agency, or any other act
or condition whatsoever beyond the reasonable control of the affected party,
provided the party so affected shall take all reasonable steps to avoid or
remove such cause of nonperformance and shall resume performance hereunder
with dispatch whenever such causes are removed. Notwithstanding the above, a
party materially adversely affected by said delay, failure or interruption
may terminate this Agreement if said delay, failure or interruption should
exceed ninety (90) days, but the terminating party shall not be entitled to
any damages or other relief except termination. In no event shall Force
Majeure be an excuse for nonpayment of monetary obligations payable by one
party to the other.
10. GOVERNING LAW. This Agreement shall be governed by and construed in
accordance with the laws of the State of Maryland.
11. WARRANTY AND TITLE. FLASHNET does not make any warranties,
representations or guarantees regarding the services or products to be
provided hereunder other than those expressly contained in this Agreement.
FLASHNET DISCLAIMS ALL IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A
PARTICULAR PURPOSE.
FLASHNET shall have no duty to correct any errors in data provided pursuant
to this Agreement unless ACSI notices FLASHNET of such error within sixty
(60) days after the expiration of this Agreement and the error was caused
solely by FLASHNET.
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12. INDEPENDENT CONTRACTOR. FLASHNET represents that it is an independent
contractor and neither it nor its employees or subcontractors shall be, or
deemed for any purpose to be, an employee or agent of ACSI.
13. DISPUTE RESOLUTION. If either party wishes to commence litigation in
connection with a dispute concerning this Agreement, then either before or
promptly after doing so, that party shall notify the other party in writing
by overnight courier service or facsimile transmission of a request for a
meeting. The request shall contain a description of the problem. Within
fourteen (14) days of receipt of the letter requesting the meeting, the
parties shall meet at a mutually convenient location. The meeting shall be
attended by an executive of each company having the authority to resolve the
dispute. Each party may bring technical staff or other representatives having
information bearing on the problem; however, neither party may bring an
attorney or be represented in the meeting by an executive who is an attorney
unless agreed to in advance, in writing, by the other party.
In the event the parties are unable to reach a resolution utilizing the
negotiating methods first above-mentioned, the parties hereto agree to submit
such dispute for resolution by binding arbitration under the Commercial
Arbitration Rules of the American Arbitration Association in effect at the
time arbitration is demanded. In no event shall the demand for arbitration be
made later than one (1) year after the claim, dispute, controversy or other
matter in question accrued or arose.
14. LIMITATION OF LIABILITY. In no event shall FLASHNET's liability to ACSI
for damages resulting from any claims arising from or relating to any acts or
omissions in the performance of this Agreement, including, without
limitation, liability for patent or copyright infringement, exceed the total
amount of compensation received by FLASHNET under this Agreement. FLASHNET
shall not be liable to ACSI for any claims for lost profits, or indirect or
consequential damages arising from or related to FLASHNET's acts or omissions
in the performance of this Agreement.
15. MODIFICATIONS. No waiver, alteration, or modification of this Agreement
will be binding or effective unless in writing and signed by a duly
authorized representative of both FLASHNET and ACSI.
16. ENTIRE AGREEMENT. This Agreement constitutes the entire agreement among
the parties and supersedes all other oral or written agreements,
communications and documents between the parties with respect to the subject
matter hereof.
17. NOTICES. Any notices to be given hereunder by either party to the other may
be effected either by personal delivery in writing or by mail or overnight
courier service. Mailed notices shall be addressed to the individuals indicated
below, but each party may change the address by written notice in accordance
with this paragraph.
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement or caused
it to be executed in their name and on behalf by their duly authorized
representatives.
WebSite Management Company, Inc. ACSI Advanced Data Services, Inc.
d/b/a FLASHNET Communications
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M. Xxxxx Xxxxxx Xxxxxx Xxxxx
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Name Name
President S R.V.P.
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Title Title
/s/ M. Xxxxx Xxxxxx /s/ [ILLEGIBLE]
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Signature Signature
6/18/97 6/18/97
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Date Date
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