EXHIBIT 10(l)
SERVICE AGREEMENT
THIS AGREEMENT made and entered into effective the 8th day of March, 1999, by
and between Land Tejas Development at Northpointe, L.L.C., a Texas limited
liability company, (hereinafter called "COMPANY"), ClearWorks Technologies,
Inc., a Delaware corporation (hereinafter called "CLWK").
W I T N E S S E T H:
WHEREAS, COMPANY is a developer of a residential community located in Houston,
Xxxxxx County, Texas (hereinafter referred to as the "Territory"); and
WHEREAS, COMPANY has established a Home Owners Association ("HOA") for such
Territory, wherein HOA in the Territory desires to purchase bundled digital
services exclusively from CLWK, and
WHEREAS, CLWK has developed either directly or through its affiliated entities
an organization which has the ideas, concepts, know-how or techniques to effect
a bundled digital service program; and
WHEREAS, CLWK shall effect the bundled digital service program in the Territory
set forth in Exhibit "A", attached hereto and made a part hereof; and
WHEREAS, COMPANY recognizes the bundled digital services are specialized, high
technology products and services that require the highest standards of quality
control of materials, assembling and testing, and
WHEREAS, the bundled digital service program which CLWK can provide will be very
beneficial and unique to the home owners in the HOA and will enhance the value
of their homes; however, CLWK is unwilling to make the initial financial and
time investment without a grant of exclusivity from the COMPANY and HOA;
therefore, COMPANY is herein granting to CLWK an exclusive bundled digital
service program within the Territory; and
NOW, THEREFORE, for and in consideration of the mutual advantages and benefits
accruing to the parties hereto, the sufficiency of which is hereby acknowledged,
the parties hereto agree that the following shall constitute the agreement
between CLWK and COMPANY concerning the development and installation of the
bundled digital service program, as described herein. This Agreement upon
execution by CLWK and COMPANY shall supersede and replace all prior agreements
and verbal conversations between COMPANY and CLWK regarding the transaction
contemplated herein.
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1. BUNDLED DIGITAL SERVICE PROGRAM
For purposes of this Agreement, the entire Bundled Digital Service Program
shall hereinafter be referred to as the "Program". Exhibit B, attached
hereto and made a part hereof lists the elements, both tangible and
intangible, associated with the Program. It is the COMPANY'S desire that
various elements of the Program be the responsibility of CLWK to design
and install, and that such elements shall be outlined in Exhibit B.
Exhibit C, attached hereto and made a part hereof, lists the elements of,
and associated with the Program, both tangible and intangible, which shall
be the responsibility of COMPANY.
2. SCOPE OF CLWK'S SUPPLIED SERVICES
Attached hereto and made a part hereof is Exhibit B entitled "Services."
This Exhibit B details the elements of the Program CLWK will provide in
accordance with the terms and conditions set forth in this Agreement. The
services listed under each element shown on Exhibit "B" are the maximum
specifications required for the Program.
3. COMMENCEMENT DATE
CLWK agrees to commence the design and installation of the Program in the
Territory upon the execution of this Agreement but, in no event later than
March 15, 1999.
4. TERM OF PERFORMANCE
COMPANY enters into this Agreement for the Program exclusively with CLWK
for a term of twenty-five (25) years from the date of execution of this
Agreement. It is understood and agreed that COMPANY shall not enter into a
similar agreement(s) with any other person or entity for the elements,
components and services contemplated under this Agreement and/or Program
for a term of 25 years from the date hereof, unless mutually specifically
agreed and defined in writing between COMPANY and CLWK.
This Agreement shall continue in force and effect for 25 years from the
date of execution of this Agreement until the end of such term unless
terminated sooner pursuant to Article 12 of this Agreement.
5. COMPENSATION
5.1 Exhibit D, entitled Basic Level Services Pricing, attached hereto
and made a part hereof by reference, describes the rates for basic
services of the Program subject to changes, additions, or deletions
as determined by CLWK and as provided herein. Exhibit E, entitled
Service Details, attached hereto and made a part hereof by
reference, describes the services of the Program, subject to
changes, additions, or deletions as determined by CLWK and as
provided herein.
5.2 INVOICING. CLWK shall submit a detailed invoice to each home then
involved in the Program directly to the customer monthly in advance
for the Basic Level Services of the Program. Such invoices shall be
due and payable to the HOA upon receipt by customer of the invoice.
Interest at the rate of 1-1/2% per month, or the maximum
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rate allowed by law, whichever is less, shall be charged and due on
all past due accounts.
In the event HOA received monies from the CUSTOMER and fails to
remit monies to CLWK in a timely manner, HOA shall be liable for
material breach of contract and shall be liable for the full amount
of the monies received from CUSTOMER and interest plus any other
appropriate amounts due CLWK. It is agreed that time is of the
essence in CLWK receiving payment of its invoices and that CLWK
reserves the rights to suspend services to specific homeowners for
such homeowner's nonpayment of invoices in a timely fashion.
In the case of Enhanced Level Services of the Program, which are
payable according to the amount of usage by the CUSTOMER, CLWK shall
also submit invoices directly to the CUSTOMER monthly for the
Enhanced Level Services of the Program which were rendered in the
prior month. Such invoices shall be due and payable to CLWK by the
CUSTOMER upon receipt of the invoice, and CLWK reserves the right to
suspend services for lack of timely payment.
WITH RESPECT TO THE BASIC LEVEL SERVICES AND ENHANCED LEVEL
SERVICES, CLWK RESERVES THE RIGHT TO CANCEL OR SUSPEND AT CLWK'S
SOLE OPTION, SERVICES OF THE PROGRAM TO CUSTOMERS DUE TO NONPAYMENT
OF ANY INVOICE(S) OVER 60 DAYS PAST DUE AND RETRIEVE AND REPOSSESS
ALL COMPONENTS AND EQUIPMENT FROM THE NON PAYING CUSTOMER IN
CONNECTION WITH THE PROGRAM.
5.3 COMPANY COMPENSATION: Attached hereto and made a part hereof is
Exhibit F entitled "COMPENSATION". CLWK shall pay COMPANY a monthly
compensation for each timely paid invoice on the Basic Level of
Services of the Program. Such compensation and fee shall be paid
pursuant to the rate outlined in the attached Exhibit F.
5.4 CURRENCY: Unless otherwise agreed, payment for all levels of the
Program shall be in U.S. dollars.
5.5 TAXES. Any sales, use or other similar type taxes are not included
in the price listed on Exhibits D and E, and such taxes shall be for
the account of and be itemized separately to the CUSTOMER and
COMPANY.
5.6 DISPUTED INVOICES. In cases of legitimate disputes which arise
between CUSTOMER, HOA and CLWK which represent less than the full
invoice amount, CUSTOMER and HOA shall pay the undisputed amount to
CLWK immediately.
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5.7 PERMITS, EASEMENTS, ETC. COMPANY shall obtain, pay for and provide
adequate easements and elements necessary to easily install,
maintain, operate and provide the Program in the Territory. The
foregoing easement rights shall include, but not be limited to the
easement for the fiber optic cable, the head end building, permits,
official inspections, work permits, identification cards, security
clearances and passes required for the performance of the Program
and services thereto. COMPANY shall provide ingress and egress, and
easy access to and from the head end building and easements and
shall make easily available all utilities necessary to facilitate
installation, maintenance and operation of the Program. The term
"easement" shall refer to the granting of the right to CLWK and its
employees, representatives and agents to make any use in the
Territory, directly related to the program, or any portion thereof,
including but not limited to the head end building, and utilities
for purposes relating to this Agreement, the Program and services
thereto.
6. MODIFICATIONS
Changes in Program. The parties agree that the Program to be provided
hereunder and the compensation therefor shall be reviewed by CLWK not less
than every 12 months, commencing from the date hereof. Any changes to the
Program, may be made by CLWK provided CLWK provides all parties hereto
thirty (30) days prior written notice and such changes do not lower the
quantity or quality of the Program. Any changes to COMPANY'S compensation
shall be mutually specifically agreed and defined in writing between CLWK
and COMPANY.
7. MARKETING
7.1 COMPANY shall actively and solely promote CLWK in connection to the
Program. The parties will cooperate on marketing and promotional
materials and activities relating to the Program and such materials
and activities shall be subject to approval by CLWK before their
release or initiation. With respect to any and all marketing
campaigns in connection to and that arise from the promotion of the
Program, COMPANY shall prominently display, include and reference
CLWK's name and likeness on such promotional activities and
materials provided that CLWK shall have the right to approve or
disapprove the use of its name, likeness, trademarks, etc. in all
cases.
7.2 COMPANY agrees to and shall permit CLWK to distribute and place its
marketing materials regarding the Program in COMPANY'S sales offices
in the respective Territory.
7.3 Any use of the Company's name, logo, trademarks, or other marketing
materials by CLWK shall require the prior written consent of the
Company.
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7.4 CLWK shall have direct access to CUSTOMERS in order to resolve
issues relating to the implementation, providing, and servicing of
the Program.
8. INDEPENDENT CONTRACTOR
8.1 CLWK shall be an independent contractor and CLWK and its employees
shall not be deemed for any purposes to be the agent or servant of
COMPANY. Neither COMPANY nor CLWK shall have the right or authority
to execute any contract or legal document for, or to assume, create,
or incur any liability or any obligation of any kind, express or
implied, against or in the name of the other party or parties
hereto, unless expressly authorized in writing by the party granting
the agency.
9. WARRANTY
9.1 The Program performed by CLWK hereunder will be performed in a
workmanlike manner commensurate with the standards for such services
prevailing in the industry within the greater Houston and
surrounding areas. CLWK further makes no warranty regarding the
level of performance of COMPANY'S, HOA'S or CUSTOMER'S equipment or
facilities.
9.2 With respect to the telephone services of the Program,
CLWK'S only obligation hereunder shall be to provide replacement or
alternate telephone services in the event of telephone service
failure in connection to the Program; that is CLWK shall replace
such telephone service or find alternate service substantially equal
or similar to the original service or product within a reasonable
time commensurate with the standards prevailing in the industry and
as outlined by the Public Utilities Commission of Texas.
9.3 THE FOREGOING IS EXPRESSLY IN LIEU OF ALL OTHER WARRANTIES, EXPRESS,
IMPLIED AND STATUTORY, INCLUDING WITHOUT LIMITATION THE IMPLIED
WARRANTIES OF MERCHANTABILITY AND FITNESS. THE FOREGOING IS CLWK'S
ONLY OBLIGATION.
9.4 COMPANY shall use its best efforts to ensure that a minimum of 95%
of the total single family homes located within the Territory at all
given points of time will be subscribed to the Program within 30
days of occupancy or resale of each home, and shall become CUSTOMERS
of CLWK through the HOA.
10. RELEASE AND INDEMNITY
10.1 CLWK agrees to protect, defend, indemnify and hold harmless COMPANY
its respective parent, subsidiaries and affiliated companies, and
their employees, subcontractors and their insurers from and against
any claim, demand, cause of action, loss, expense award, obligation
to indemnify another, judgment or liability
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on account of illness, injury or death to the employees of CLWK and
CLWK'S subcontractors and/or damage to or loss or destruction of the
property of CLWK arising directly or indirectly out of the
performance of this Agreement regardless of omissions or negligence,
in whole or in any part, of COMPANY.
COMPANY agrees to protect, defend, indemnify and hold harmless CLWK,
its parent, subsidiaries and affiliated companies, and its and their
employees, subcontractors and its and their insurers from and
against any claim, demand, cause of action, loss, expense award,
obligation to indemnify another, judgment or liability on account of
illness, injury or death to the employees of COMPANY and COMPANY'S
subcontractors and/or damage to or loss or destruction of the
property of COMPANY arising directly or indirectly out of the
performance of this Agreement regardless of omissions of negligence,
in whole or in any part, of CLWK.
CLWK and COMPANY are each responsible to third parties to the extent
of their own negligence.
Notwithstanding any of the indemnities and liabilities specifically
referred to above, neither COMPANY or CLWK shall be liable to the
other with respect to any consequential loss including, but not
limited to, loss of anticipated profit, loss of anticipated revenue,
loss of product, or loss of use of money, arising or alleged to
arise out of either COMPANY'S or CLWK'S failure to properly carry
out its obligations hereunder or due to omissions or negligence, in
whole or in any part, of the party at fault, its subcontractors or
vendors in any part, of party at fault, its subcontractors or
vendors or strict liability, and regardless of whether pre-existing
the execution of the Agreement.
11. LIMITATION OF LIABILITY
11.1 CLWK'S LIABILITY FOR DAMAGES TO COMPANYAND/OR OTHERS FOR ANY CAUSE
WHATSOEVER, AND REGARDLESS OF THE FORM OF ACTION, WHETHER IN
CONTRACT OR IN TORT INCLUDING NEGLIGENCE AND STRICT LIABILITY, SHALL
BE LIMITED TO THE AMOUNTS, AS APPLICABLE, RECOVERABLE FROM AND UNDER
INSURANCE WHICH CLWK HAS AND/OR WILL HAVE IN FORCE.
11.2 COMPANY'S LIABILITY FOR DAMAGES TO CLWK AND/OR OTHERS FOR ANY CAUSE
WHATSOEVER, AND REGARDLESS OF THE FORM OF ACTION, WHETHER IN
CONTRACT OR IN TORT INCLUDING NEGLIGENCE AND STRICT LIABILITY, SHALL
BE LIMITED TO THE AMOUNTS, AS APPLICABLE, RECOVERABLE FROM AND UNDER
INSURANCE WHICH COMPANY HAVE AND/OR WILL HAVE IN FORCE.
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11.3 IN NO EVENT SHALL CLWK AND COMPANY BE LIABLE FOR INCIDENTAL,
SPECIAL, INDIRECT, CONSEQUENTIAL OR EXEMPLARY DAMAGES, INCLUDING BUT
NOT LIMITED TO TREBLE DAMAGES UNDER ANY DECEPTIVE TRADE PRACTICE
ACT.
11.4 Each party shall insure its liabilities and indemnity obligations
hereunder with insurance or qualified self-insurance with the
following coverage's and limits:
COVERAGE PER OCCURRENCE/AGGREGATE
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Worker's Compensation Statutory (Texas)
Employer's Liability $1,000,000
Comprehensive General Liability $1,000,000 combined single
including broad form contractual, each occurrence for bodily
broad form property damage, xcu injury and property damage.
hazards, completed operations, and
product liability.
Comprehensive Auto Liability $2,000,000 combined single
(owned and non-owned) limit each occurrence for bodily
injury and property damage.
11.5 Each party will give the other party not less than thirty (30) days
advance written notice of any material changes in any insurance
policy applicable hereto thirty (30) days prior to the expiration
thereof.
11.6 Prior to commencing performance of the Agreement, the parties shall
provide a Certificate of Insurance evidencing the required coverage
and such contractor shall show coverage prepaid for one (1) year
11.7 Each party named in this Agreement shall name the other party as an
additional named insured and each party shall waive its rights to
subrogation; provided, however, that the additional named insured
and waiver of subrogation provisions set forth herein shall only
apply as to those risks the party has expressly agreed to bear or
against which the party has agreed to indemnify the other herein.
11.8 Each party must renew the annual insurance coverage thirty (30) days
prior to the expiration thereof.
12. TERMINATION
12.1 Either party upon advanced written notice to that effect to the
other party, shall have the right to terminate this Agreement at any
time and without judicial decision or resolution in the event that
the latter fails to observe the material provisions and conditions
hereof, and shall fail to correct any material default within 180
business days after the party alleging such material default has
given written notice thereof.
12.2 Upon termination of this Agreement for material default (other than
making payments pursuant to 12.6 herein) by either party, all
amounts unpaid by
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COMPANY as well as all other outstanding charges shall accrue and
become immediately due and payable to the non-defaulting party.
12.3 Upon termination of this Agreement for material default by CLWK,
COMPANY shall have the option to purchase the cable, hardware,
installation costs and other components owned by CLWK in connection
to the Program pursuant to the pricing terms outlined in Exhibit G,
attached hereto and incorporated herein by reference for all
purposes.
12.4 This Article expressly prohibits any collusion between HOA and
COMPANY to terminate the Agreement.
12.5 In the event CLWK fails to provide telephone services commensurate
to those standards outlined by the Public Utilities Commission of
Texas, then COMPANY may engage another telephone company, mutually
agreed upon by the parties, to provide such telephone services.
CLWK'S failure to provide such telephone services shall not be
considered a material default or failure to observe the material
provisions and conditions hereof for purposes of this Article 12.
Provided, however, that upon COMPANY'S termination of the telephone
services as provided herein, CLWK shall drop the charges for
telephone services under the under the Program. Any and all
compensation received by COMPANY shall be reduced proportionately.
12.6 Monetary Default. Either party upon advanced written notice to that
effect to the other party, shall have the right to terminate this
Agreement at any time and without judicial decision or resolution in
the event that the latter fails to make payments pursuant to the
terms contained in this Agreement, and shall fail to correct such
material default within 30 business days after the party alleging
such material default has given written notice thereof.
13. ASSIGNMENTS AND SUBCONTRACTS
Neither party shall assign or subcontract its duties or obligations
hereunder without the written consent of the other party, except for
receipt of payments which may be assigned; provided, however, CLWK may
subcontract the performance of the Program, or portions thereof, to any of
CLWK'S subsidiaries or affiliates, successors and merger entities with
consent from the other parties hereto, which consent shall not be
unreasonably withheld.
In the event of an assignment by either party, the assignee or its legal
representative shall agree in writing with the other party to personally
assume, perform and be bound by the covenants, obligations,
indemnification provisions and agreements contained herein; however, such
assignment shall not relieve the assignor from its obligations hereunder
unless specifically agreed in writing by the other party.
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14. CONFIDENTIALITY
Any Confidential Information transmitted by one party hereto ("Disclosing
Party") to the other party hereto ("Receiving Party") shall be retained by
the Receiving Party as confidential and not disclosed to any third party
without the written consent of the Disclosing Party. "Confidential
Information" includes, but is not limited to all information, written and
oral, relating to the Disclosing Party, such as the Disclosing Party's
market intelligence, unannounced information regarding the Program,
technical, scientific and financial information; data, drawings, designs,
processes, procedures, formulas, software, source codes, programs,
programming documentation, disks and other intellectual property and
improvements relating to the Program and the Disclosing Party. The parties
to this Agreement understand and acknowledge that the Confidential
Information is valuable, special and unique assets and trade secrets of
the Disclosing Party and that the Disclosing Party has taken measures to
prevent Confidential Information from becoming available to persons other
than those selected by the Disclosing Party to have access to such
Confidential Information for limited purposes. The Receiving Party
undertakes to protect and preserve the Confidential Information as
confidential, and contract with and instruct any officer, director,
employee, agent, contractor or affiliate of the Receiving Party receiving
any or all of the Confidential Information to treat it as confidential,
and not to divulge, publish or disseminate the Confidential Information,
in whole or in part, to any other person or entity except by written
permission by the Disclosing Party. In the event of a breach or threatened
breach by the Receiving Party, or any other person or entity by or through
the Receiving Party, of the provisions of this Confidentiality Agreement,
the Disclosing Party shall, in addition to any other available remedies,
be entitled to an injunction restraining the Receiving Party from
disclosing, in whole or in part, any such Confidential Information to any
person, firm or corporation to whom any of such Confidential Information
may be disclosed or is threatened to be disclosed.
The confidentiality obligations hereunder shall not extend to any
information that is:
a. Already in the possession of the Receiving Party or its parent,
subsidiaries or affiliates;
b. Already in the public domain;
c. Subsequently becomes a part of the public domain through no fault or
breach of the Receiving Party;
d. Is disclosed by others to the Receiving Party or its parent,
subsidiaries or affiliates without breach of any obligation to the
Disclosing Party; or
e. Required by law to be disclosed, but only to the extent and to such
parties as required by such law.
The obligations set forth in this Article shall extend beyond the
duration or termination of the Agreement for a period of three (3)
terms only.
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15. INVENTIONS AND RESERVATION OF RIGHTS
Except as set forth to the contrary in this Agreement, CLWK shall have the
exclusive, free and irrevocable right to use, disclose and practice
without restriction, any and all inventions, ideas and improvements made
by CLWK or its agents, affiliates and employees relating to or in
association with the Program provided hereunder. IT IS CLEARLY UNDERSTOOD
AND AGREED BY ALL PARTIES THAT CLWK HAS AND RETAINS ALL OWNERSHIP, RIGHT,
TITLE AND INTEREST IN AND TO THE PROGRAM, SOFTWARE, HARDWARE, INTELLECTUAL
PROPERTY AND COMPONENTS, SERVICES AND PRODUCTS WHETHER NOW IN EXISTENCE OR
DEVELOPED AND INSTALLED IN THE FUTURE WHETHER BY OR THROUGH CLWK AND/OR
COMPANY.
Except as expressly set forth to the contrary in this Agreement, COMPANY
acknowledges and agrees that COMPANY has, and shall have, no right or
interest in (a) the Program and components, software, hardware,
intellectual property, services and products in connection to the Program,
(b) any CLWK proprietary or licensed technology, (c) any CLWK proprietary
marks, (d) CLWK Program design, software, source codes and improvements,
or (e) any other rights or property of CLWK, all of which are expressly
reserved and shall remain the rights and property of CLWK.
Except as set forth to the contrary in this Agreement, it is also agreed
that COMPANY shall have the exclusive, free and irrevocable right to use,
disclose and practice without restriction, any and all inventions, ideas
and improvements made solely by COMPANY or its agents, affiliates and
employees relating to or in association with the Program provided
hereunder.
CLWK acknowledges and agrees that CLWK, has, and shall have, no right or
interest in (a) any COMPANY proprietary or licensed technology, (b) any
COMPANY proprietary marks, (c) COMPANY software, source codes and
improvements, (d) Territory community intranet (except to the extent of
any and all CLWK liens for unpaid CLWK services on such community
intranet) or (e) any other rights or property of COMPANY all of which are
expressly reserved and shall remain the rights and property of COMPANY.
16. LIENS AND ENCUMBRANCES
It is agreed and understood that COMPANY shall ensure that the Program and
products and components thereto are free from any and all liens and
encumbrances by and through COMPANY but not otherwise, and shall take
whatever action necessary to immediately cause any liens or encumbrances
to be removed.
It is agreed and understood that CLWK shall ensure that the work site of
the Program is free from any and all liens and encumbrances arising out of
CLWK'S performance of services
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under this Agreement, and shall take whatever action necessary to
immediately cause any liens or encumbrances to be removed.
17. NOTICES
All notices and other communications which are required or which may be
given hereunder pertaining to this Agreement shall be in writing and sent
via registered or certified mail, return receipt requested, postage
prepaid, telecopier or telex, to the following address:
ClearWorks Technologies, Inc.
Attention: Xxxxxxx X. XxXxxxx, President
000 X. Xxxx, Xxxxx 000
Xxxxxxx, Xxxxx 00000
Telecopier: 000-000-0000
Land Tejas Development at Northpointe, L.L.C.
C/o Xxxxxxxx Xxxxxx
0000 Xxxxxxxxx, Xxxxx #000
Xxxxxxx, Xxxxx 00000
Telecopier No. 000-000-0000
Notices shall be deemed given when received by the addressee as evidenced
by return receipt or transmission acknowledgment or receipt. Any change of
address shall be notified in writing at least 30 days in advance to the
other parties.
18. FORCE MAJEURE
Neither party under this agreement shall be responsible for
non-performance occasioned by any causes beyond such party's reasonable
control, including but not limited to acts of God, war, riot, civil
disobedience or disturbance, weather, impracticality, accident, strike or
other labor disputes, delays of suppliers, contractors or carriers, fire,
flood or casualty, governmental or judicial actions and shortages of
material, components, fuel, labor or facilities.
With respect to providing telephone services during a catastrophe as
defined by the Public Utilities Commission of Texas, CLWK shall perform in
a manner commensurate with the standards for such telephone services as
outlined by the Public Utilities Commission of Texas. IN NO EVENT SHALL
CLWK AND COMPANY BE ENTITLED TO INCIDENTAL, SPECIAL, INDIRECT,
CONSEQUENTIAL OR EXEMPLARY DAMAGES FOR LATE PERFORMANCE OR FAILURE TO
PERFORM DUE TO FORCE MAJEURE.
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19. POLICIES AND PROCEDURES
The Program supplied by CLWK under this Agreement shall be subject to and
supplied in accordance with CLWK'S policies and procedures, current and
future, applicable to such Program.
20. LAWS
20.1 This Agreement shall be construed and enforced under the laws of the
State of Texas, U.S.A. CLWK and COMPANY hereby submit themselves to
the jurisdiction and venue of the courts of Xxxxxx County, Texas and
agree that said courts shall have exclusive jurisdiction and venue
on any suits relating to this Agreement other than suits for
judgment upon any arbitration award hereunder.
20.2 Any controversy or claim arising out of or relating to this
Agreement, or the breach thereof, shall be settled by binding
arbitration in Houston, Xxxxxx County, Texas in accordance with the
Commercial Arbitration Rules of the American Arbitration
Association, and judgment upon the award rendered by the
arbitrator(s) may be entered in any court having jurisdiction
thereof.
21. SEVERABILITY
If any provision of this Agreement is declared null and void, or voidable,
by a court of competent jurisdiction, then that provision will be
considered severable in the most minimal amount possible and the remaining
provisions of this Agreement shall remain in full force and effect.
22. NO WAIVER
Any party's failure to enforce any of the provisions of this Agreement
shall not effect a waiver of any violation thereof nor preclude
enforcement of that or any other provisions hereof at that or any other
time.
23. ENTIRE AGREEMENT
This Agreement and its Exhibits represent the final, complete, and
exclusive understanding and agreement between the parties hereto with
respect to the Program and the subject matter hereof and may not be
amended except in writing signed by the officers or authorized
representatives of both parties. This Agreement shall inure to the benefit
of and be binding upon the parties hereto, their heirs, executors,
administrators, legal representatives, successors and assigns.
24. Time is of the essence in this Agreement.
25. FAILURE TO DELIVER
CLWK shall deliver the Basic and Enhanced Services to CUSTOMER in the
Territory within 120 days from the execution of this Agreement, unless
otherwise extended by COMPANY. In the event CLWK has failed to deliver
Basic and Enhanced Services to the
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CUSTOMER in the Territory on or before 120 days from the date this
Agreement is executed, and COMPANY has not received an extension from
COMPANY, then upon written notice to CLWK by COMPANY, the COMPANY shall
have the option to declare this Agreement void "ab initio and COMPANY and
CLWK shall have no further obligation to the other. Upon voiding this
Agreement, the COMPANY shall be under no obligation to purchase any cable
or hardware or software associated with the Program. Upon voiding of this
Agreement, the COMPANY shall have the exclusive right to contract with
another company to deliver the Basic Services and Enhanced Services to the
CUSTOMER'S in the Territory.
25. THIS AGREEMENT SHALL NOT BE EFFECTIVE UNTIL THE AGREEMENT BETWEEN CLWK AND
HOA HAS BEEN EXECUTED.
27. Neither this Agreement nor a memorandum thereof shall be recorded in the
Real Property Records of Xxxxxx County, Texas. Violation of this covenant
shall grant the Company the option of terminating this Agreement without
notice or opportunity to cure, notwithstanding provisions to the contrary
in this Agreement.
IN WITNESS WHEREOF, the parties have duly executed this Agreement, in two
counterparts, each of which shall be deemed an original, but which together
constitute one and the same instrument, effective as of the day and year first
shown above.
COMPANY: CLWK:
Land Tejas Development at Northpointe, L.L.C. ClearWorks Technologies, Inc.
By: /s/ XX XXXXXX By: /s/XXXXXXX X. XXXXXXX
Xx Xxxxxx, Co-Manager Name: Xxxxxxx X. XxXxxxx
Title: CEO
By: /s/ XXXXXXXX XXXXXX
Xxxxxxxx Xxxxxx, Co-Manager
ATTORNEY FOR COMPANY: ATTORNEY FOR CLWK:
/s/ XXXXXXXX XXXXXX By: ILLEGIBLE
Xxxxxxxx Xxxxxx
DATE:_______________ DATE: 3-26-99
13
CONFIDENTIAL--COMPANY AND CLEARWORKS TECHNOLOGIES, INC. SERVICE AGREEMENT -
COPYRIGHT (C)CLEARWORKS TECHNOLOGIES, INC.
WE, THE UNDERSIGNED PARTIES, HEREBY AGREE TO SUBMIT TO BINDING ARBITRATION
ADMINISTERED BY THE AMERICAN ARBITRATION ASSOCIATION UNDER ITS COMMERCIAL
ARBITRATION RULES ANY DISPUTE THAT ARISES ON ACCOUNT OF OR IN CONNECTION TO THIS
AGREEMENT. WE FURTHER AGREE THAT ANY CONTROVERSY THAT ARISES FROM THIS AGREEMENT
SHALL BE SUBMITTED TO THREE ARBITRATORS--ONE ARBITRATOR CHOSEN BY COMPANY, ONE
ARBITRATOR CHOSEN BY CLWK AND THE THIRD ARBITRATOR INDEPENDENTLY CHOSEN BY THE
CLWK AND COMPANY ELECTED ARBITRATORS. WE FURTHER AGREE THAT WE WILL FAITHFULLY
OBSERVE THIS AGREEMENT TO ARBITRATE AND THE RULES THERETO, THAT WE WILL ABIDE BY
AND PERFORM ANY AWARD RENDERED BY THE ARBITRATORS AND THAT A JUDGMENT OF ANY
COURT HAVING JURISDICTION MAY BE ENTERED ON THE AWARD.
COMPANY: CLWK:
Land Tejas Development at Northpointe L.L.C. ClearWorks Technologies, Inc.
By: /s/ XX XXXXXX By: /s/XXXXXXX X. XXXXXXX
Xx Xxxxxx, Co-Manager Name: Xxxxxxx X. XxXxxxx
Title: CEO
By: /s/ XXXXXXXX XXXXXX
Xxxxxxxx Xxxxxx, Co-Manager
ATTORNEY FOR COMPANY: ATTORNEY FOR CLWK:
/s/ XXXXXXXX XXXXXX By: ILLEGIBLE
Xxxxxxxx Xxxxxx
14
CONFIDENTIAL--COMPANY AND CLEARWORKS TECHNOLOGIES, INC. SERVICE AGREEMENT -
COPYRIGHT (C)CLEARWORKS TECHNOLOGIES, INC.
WAIVER OF CONSUMER RIGHTS
WE, THE UNDERSIGNED PARTIES, WAIVE OUR RIGHTS UNDER THE DECEPTIVE TRADE
PRACTICES-CONSUMER PROTECTION ACT, SECTION 17.41 ET SEQ., BUSINESS & COMMERCE
CODE, A LAW THAT GIVES CONSUMERS SPECIAL RIGHTS AND PROTECTIONS. AFTER
CONSULTATION WITH AN ATTORNEY OF OUR OWN SELECTION, WE VOLUNTARILY CONSENT TO
THIS WAIVER.
COMPANY: CLWK:
Land Tejas Development at Northpointe, L.L.C. ClearWorks Technologies, Inc.
By: /s/ XX XXXXXX By: /s/XXXXXXX X. XXXXXXX
Xx Xxxxxx, Co-Manager Name: Xxxxxxx X. XxXxxxx
Title: CEO
By: /s/ XXXXXXXX XXXXXX
Xxxxxxxx Xxxxxx, Co-Manager
ATTORNEY FOR COMPANY: ATTORNEY FOR CLWK:
/s/ XXXXXXXX XXXXXX By: ILLEGIBLE
Xxxxxxxx Xxxxxx
15
CONFIDENTIAL--COMPANY AND CLEARWORKS TECHNOLOGIES, INC. SERVICE AGREEMENT -
COPYRIGHT (C)CLEARWORKS TECHNOLOGIES, INC.
EXHIBIT "A"
ATTACHED TO AND MADE A PART OF THAT CERTAIN SERVICE AGREEMENT DATED MARCH 8,
1999, BY AND BETWEEN LAND TEJAS DEVELOPMENT AT NORTHPOINTE, L.L.C. AND
CLEARWORKS TECHNOLOGIES, INC.
TERRITORY
1. Exclusive Territory:
Northpointe Subdivision developed by Land Tejas Development
Houston, Xxxxxx County, Texas
Legal Description:
SEE EXHIBIT "A-1" ATTACHED HERETO FOR METES AND BOUNDS DESCRIPTION OF THE
TERRITORY ATTACHED HERETO AND PART HEREOF FOR ALL PURPOSES.
16
CONFIDENTIAL--COMPANY AND CLEARWORKS TECHNOLOGIES, INC. SERVICE AGREEMENT -
COPYRIGHT (C)CLEARWORKS TECHNOLOGIES, INC.
###-##-####
EXHIBIT "A"-1
FIELD NOTES
Description of a 196.35 acre (8,552,888) square foot) tract of land out of the
Xxxxxxx Xxxxxxx Survey, Abstract No. 621 and the X.X. Xxxx Survey, Abstract No.
1639, in Xxxxxx County, Texas and being more fully described by metes and bounds
as follows (with bearings referenced to the Texas State Plane Coordinate System,
Xxxxx Xxxxxxx Xxxx, XXX 00):
COMMENCING at a TXDOT right-of-way marker found in the southeast
right-of-way line of Xxxxxxxxx Road (100-feet wide as described in Xxxxxx
County Clerk's File No. D900150) marking the west end of a corner cut back
line at the intersection of the southeast right-of-way line of said
Xxxxxxxxx Road and the southwest right-of-way line of State Highway 249 and
being the most westerly north corner of the residue of a tract of land
conveyed to Perry and Xxxxxxx Xxxxxxxx by a Warranty Deed with Vendor's
Lien recorded in Xxxxxx Xxxxxx Xxxxx'x Xxxx Xx. X000000;
THENCE, South 58 20 1/4 59 3/4 West, along the southeast right-of-way line
of said Xxxxxxxxx, Road, a distance of 346.19 feet to a 5/8-inch iron rod
found for the west corner of a tract of land conveyed to Perry and Xxxxxxx
Xxxxxxxx by a General Warranty Deed with Third Party Vendor's Lien recorded
in Xxxxxx County Clerk's File No. N072545 and marking the most northerly
corner and POINT OF BEGINNING of the herein described tract;
THENCE, South 31 39 1/4 01 3/4 East, along the southwest line of the
aforesaid Xxxxxxxx tract and the southwest line of a tract conveyed to
Perry and Xxxxxxx Xxxxxxxx by a Special Warranty Deed recorded in Xxxxxx
County Clerk's File No. R244974 and the southwest line of a tract conveyed
to AMJ Investments, Inc. by a Special Warranty Deed with Vendor's Lien
recorded in Xxxxxx County Clerk's File No. R244977 and across a tract
conveyed to Xxxxxx X. Xxxxxx, Trustee by a General Warranty Exchange Deed
recorded in Xxxxxx County Clerk's File No. J313807, a distance of 1115.49
feet to a 5/8-inch iron rod set in the southeast line of said Xxxxxx X.
Xxxxxx tract;
THENCE, North 58 20 1/4 59 3/4 East, along the southeast line of said
Xxxxxx X. Xxxxxx tract, a distance of 438.91 feet to a 5/8-inch iron rod
set for the beginning of a curve in the southwest right-of-way line of the
aforementioned State Highway 249 (variable width right-of-way);
[Page 1 of 12]
###-##-####
EXHIBIT "A"-1
THENCE, southeasterly, along the southwest right-of-way line of said State
Highway 249 and along said curve to the left, having a radius of 11,634.16
feet, through a central angle of 01 41 1/4 34 3/4 (the chord bears South 36
19 1/4 00 3/4 East on a distance of 364.02 feet) an arc distance of 364.03
feet to a 5/8-inch iron rod set for the point of tangency of said curve;
THENCE, South 37 12 1/4 47 3/4 East, along the southwest right-of-way line
of said State Highway 249, a distance of 292.60 feet to a 5/8-inch iron rod
set for the point of curvature of a curve to the right;
THENCE, southeasterly, along the southwest right-of-way line of said State
Highway 249 and along said curve to the right, having a radius of 1,512.89
feet, through a central angle of 03 20 1/4 25 3/4 (the chord bears South 35
32 1/4 34 3/4 East a distance of 88.18 feet) an arc distance of 88.20 feet
to a 5/8-inch iron rod set for the point of tangency of said curve;
THENCE, South 33 52 1/4 22 3/4 East, along the southwest right-of-way line
of said State Highway 249, a distance of 339.99 feet to a TXDOT
right-of-way marker found for the point of curvature of a curve to the
left;
THENCE, southeasterly along the southwest right-of-way line of said State
Highway 249 and along said curve to the left, having a radius of 1,542.89
feet, through a central angle of 03 20 1/4 25 3/4 (the chord bears South 35
32 1/4 34 3/4 a distance of 89.93 feet) an arc distance of 89.94 feet to a
TXDOT right-of-way marker found for the point of tangency of said curve;
THENCE, South 37 12 1/4 47 3/4 East, along the Southwest right-of-way line
of said State Highway 249, a distance of 326.40 feet to a 5/8-inch iron rod
set for the point of curvature of a curve to the right;
THENCE, southeasterly, along the southwest right-of-way line of said State
Highway 249 and along said curve to the right, having a radius of 16,988.73
feet through a central angle of 00 46 1/4 22 3/4 (the chord bears South 36
49 1/4 36 3/4 East a distance of 229.12 feet) an arc distance of 229.12 feet
to a 5/8-inch iron rod set for corner;
THENCE, South 54 05 1/4 54 3/4 West, departing said right-of-way line of
State Highway 249, a distance of 626.83 feet to a 5/8-inch iron rod set for
corner;
THENCE, South 37 12 1/4 47 3/4 East, a distance of 852.15 feet to a
5/8-inch iron rod set for the beginning of a curve to the left;
THENCE, southerly, along the arc of said curve to the left, having a radius
of 630.00 feet, through a central angle of 39 12 1/4 49 3/4 (the chord
bears South 00 59 1/4 51 3/4 West a distance of 422.81 feet) an arc
distance of 431.18 feet to a 5/8-inch iron rod set for the point of
compound curvature of a compound curve to the left;
[Page 2 of 12]
###-##-####
EXHIBIT "A"-1
THENCE, southeasterly, along the arc of said compound curve to the left,
having a radius of 2,030.00 feet, through a central angle of 07 36 1/4
25 3/4 (the chord bears South 22 24 1/4 46 3/4 East a distance of 269.31
feet) an arc distance of 269.51 feet to a 5/8-inch iron rod set for the
point of reverse curvature of a curve to the right;
THENCE, southwesterly, along the arc of said reverse curve to the right,
having a radius of 25.00 feet, through a central angle of 88 27 1/4 48 3/4
(the chord bears South 18 00 1/4 56 3/4 West a distance of 34.88 feet) an
arc distance of 38.60 feet to a 5/8-inch iron rod set for the point of
tangency of said reverse curve;
THENCE, South 62 14 1/4 50 3/4 West, a distance of 612.42 feet to a
5/8-inch iron rod set for the point of curvature of a curve to the left;
THENCE, southwesterly, along the arc of said curve to the left, having a
radius of 630.00 feet, through a central angle of 08 08 1/4 56 3/4 (the
chord bears South 58 10 1/4 22 3/4 West a distance of 89.53 feet) an arc
distance of 89.60 feet to a 5/8-inch iron rod set for the point of tangency
of said curve;
THENCE, South 54 05 1/4 54 3/4 West, a distance of 140.00 feet to a
5/8-inch iron rod set for corner;
THENCE, South 35 54 1/4 06 3/4 East, a distance of 60.00 feet to a
5/8-inch iron rod found for the most northerly corner of an 8.3463 acre
tract described in a deed to BACS, L.L.P. recorded in Xxxxxx County Clerk's
File No. R854471;
THENCE, South 18 59 1/4 27 3/4 West, along a westerly line of said BACS
tract, a distance of 104.86 feet to a 5/8-inch iron rod found for the point
of curvature of a curve to the left;
THENCE, southerly, along a west line of said BACS tract and the arc of said
curve to the left, having a radius of 1,950.00 feet, through a central
angle of 24 49 1/4 46 3/4 (the chord bears South 06 34 1/4 34 3/4 West a
distance of 838.45 feet) an arc distance of 845.05 feet to a 5/8-inch iron
rod set for corner;
THENCE, South 81 48 1/4 36 3/4 West, a distance of 100.08 feet to a
5/8-inch iron rod set for the beginning of a curve to the left;
THENCE, southerly, along said curve to the left, having a radius of 2050.00
feet, through a central angle of 00 25 1/4 10 3/4 (the chord bears South 06
09 1/4 47 3/4 East a distance of 15.01 feet) an arc distance of 15.01 feet
to a 5/8-inch iron rod set for corner;
THENCE, South 37 36 1/4 40 3/4 West, a distance of 21.52 feet to a
5/8-inch iron rod set in the north right-of-way line of proposed
Northpointe Boulevard (100-foot wide right-of-way);
THENCE, South 81 48 1/4 36 3/4 West, along the north right-of-way line of
said proposed Northpointe Boulevard, a distance of 79.11 feet to a
5/8-inch iron rod set for corner;
[Page 3 of 12]
###-##-####
EXHIBIT "A"-1
THENCE, North 06 00 1/4 54 3/4 East, a distance of 437.52 feet to a
5/8-inch iron rod set for corner;
THENCE, North 83 59 1/4 06 3/4 West, a distance of 359.06 feet to a
5/8-inch iron rod set for the point of curvature of a curve to the right;
THENCE, northwesterly, along the arc of said curve to the right, having a
radius of 640.00 feet, through a central angle of 45 44 1/4 11 (the chord
bears North 61 07 1/4 01 3/4 West, a distance of 497.42 feet) an arc
distance of 510.88 feet to a 5/8-inch iron rod set for the point of
tangency of said curve;
THENCE, North 38 14 1/4 55 3/4 West, a distance of 343.33 feet to a
5/8-inch iron rod set for corner;
THENCE, North 83 14 1/4 55 3/4 West, a distance of 7.07 feet to a 5/8-inch
iron rod set for corner;
THENCE, South 51 45 1/4 05 3/4 West, a distance of 10.00 feet to a
5/8-inch iron rod set for corner;
THENCE, North 38 14 1/4 55 3/4 West, a distance of 50.00 feet to a
5/8-inch iron rod set for corner;
THENCE, North 51 45 1/4 05 3/4 East, a distance of 10.00 feet to a
5/8-inch iron rod set for corner;
THENCE, North 06 45 1/4 05 3/4 East, a distance of 7.07 feet to a 5/8-inch
iron rod set for corner;
THENCE, North 38 14 1/4 55 3/4 West, a distance of 365.00 feet to a
5/8-inch iron rod set for corner;
THENCE, North 83 14 1/4 55 3/4 West, a distance of 7.07 feet to a 5/8-inch
iron rod set for corner;
THENCE, North 51 45 1/4 05 3/4 West, a distance of 10.00 feet to a
5/8-inch iron rod set for corner;
THENCE, North 38 14 1/4 55 3/4 West, a distance of 50.00 feet to a
5/8-inch iron rod set for corner;
THENCE, North 51 45 1/4 05 3/4 East, a distance of 10.00 feet to a
5/8-inch iron rod set for corner;
THENCE, North 06 45 1/4 05 3/4 East, a distance of 7.07 feet to a 5/8-inch
iron rod set for corner;
THENCE, North 38 14 1/4 55 3/4 West, a distance of 212.58 feet to a
5/8-inch iron rod set for the point of curvature of a curve to the right;
[Page 4 of 12]
###-##-####
EXHIBIT "A"-1
THENCE, northwesterly, along the arc of said curve to the right, having a
radius of 945.00 feet, through a central angle of 12 10 1/4 41 3/4 (the
chord bears North 32 09 1/4 35 3/4 West a distance of 200.48 feet) an arc
distance of 200.86 feet to a 5/8-inch iron rod set for the beginning of a
reverse curve;
THENCE, westerly, along said reverse curve to the left, having a radius of
25.00 feet, through a central angle of 34 29 1/4 01 3/4 (the chord bears
South 82 57 1/4 13 3/4 West a distance of 14.82 feet) an arc distance of
15.05 feet to a 5/8-inch iron rod set for the end of said reverse curve;
THENCE, South 65 42 1/4 42 3/4 West, a distance of 10.00 feet to a
5/8-inch iron rod set for corner;
THENCE, North 24 17 1/4 18 3/4 West, a distance of 50.00 feet to a
5/8-inch iron rod set for corner;
THENCE, North 65 42 1/4 42 3/4 East, a distance of 10.10 feet to a
5/8-inch iron rod set for the beginning of a curve to the left;
THENCE, northeasterly, along said curve to the left, having a radius of
25.00 feet, through a central angle of 34 15 1/4 04 3/4 (the chord bears
North 48 21 1/4 11 3/4 East a distance of 14.72 feet) an arc distance of
14.95 feet to a 5/8-inch iron rod set for the beginning of a reverse curve;
THENCE, northerly, along the arc of said curve to the right, having a
radius of 945.00 feet, through a central angle of 12 47 1/4 12 3/4 (the
chord bears North 16 06 1/4 45 3/4 West a distance of 210.46 feet) an arc
distance of 210.89 feet to a 5/8-inch iron rod set for the beginning of a
reverse curve;
THENCE, westerly, along said reverse curve to the left, having a radius of
25.00 feet, through a central angle of 34 29 1/4 01 3/4 (the chord bears
North 80 41 1/4 43 3/4 West a distance of 14.82 feet) an arc distance of
15.05 feet to a 5/8-inch iron rod set for the end of said reverse curve;
THENCE, South 82 03 1/4 47 3/4 West, a distance of 10.00 feet to a
5/8-inch iron rod set for corner;
THENCE, North 07 56 1/4 13 3/4 West, a distance of 50.00 feet to a
5/8-inch iron rod set for corner;
THENCE, North 82 03 1/4 47 3/4 East, a distance of 10.00 feet to a
5/8-inch iron rod set for the beginning of a curve to the left;
THENCE, northeasterly, along said curve to the left, having a radius of
25.00 feet, through a central angle of 34 29 1/4 01 3/4 (the chord bears
North 62 49 1/4 17 3/4 East a distance of 14.82 feet) an arc distance of
15.05 feet to a 5/8-inch iron rod set for the beginning of a reverse curve;
[Page 5 of 12]
###-##-####
EXHIBIT "A"-1
THENCE, northerly, along the arc of said curve to the right, having a
radius of 945.00 feet, through a central angle of 13 55 1/4 11 3/4 (the
chord bears North 00 48 1/4 19 3/4 East a distance of 229.02 feet) an arc
distance of 229.58 feet to a 5/8-inch iron rod set for the beginning of a
reverse curve;
THENCE, northwesterly, along said reverse curve to the left, having a
radius of 25.00 feet, through a central angle of 34 29 1/4 05 3/4 (the
chord bears North 63 12 1/4 41 3/4 West a distance of 14.82 feet) an arc
distance of 15.05 feet to a 5/8-inch iron rod set for the end of said
reverse curve;
THENCE, North 80 27 1/4 13 3/4 West, a distance of 10.00 feet to a
5/8-inch iron rod set for corner;
THENCE, North 09 32 1/4 47 3/4 East, a distance of 50.00 feet to a
5/8-inch iron rod set for corner;
THENCE, South 80 27 1/4 13 3/4 East, a distance of 10.00 feet to a
5/8-inch iron rod set for the beginning of a curve to the left;
THENCE, easterly, along said curve to the left; having a radius of 25.00
feet, through a central angle of 34 28 1/4 57 3/4 (the chord bears North 82
18 1/4 18 3/4 East a distance of 14.82 feet) an arc distance of 15.05 feet
to a 5/8-inch iron rod set for the beginning of a reverse curve;
THENCE, northerly along the arc of said curve to the right, having a radius
of 945.00 feet, through a central angle of 08 03 1/4 35 3/4 (the chord
bears North 15 21 1/4 35 3/4 East a distance of 132.82 feet) an arc
distance of 132.93 feet to a 5/8-inch iron rod set for the end of said
reverse curve;
THENCE, North 80 27 1/4 13 3/4 West, a distance of 172.96 feet to a
5/8-inch iron rod set for corner;
THENCE, North 21 57 1/4 01 3/4 West, a distance of 120.00 feet to a
5/8-inch iron rod set for the beginning of a curve to the left;
THENCE, northeasterly, along the arc of said curve to the left, having a
radius of 1,030.00 feet, through a central angle of 13 46 1/4 39 3/4 (the
chord bears North 61 09 1/4 39 3/4 East a distance of 247.08 feet) an arc
distance of 247.68 feet to a 5/8-inch iron rod set for the point of
tangency of said curve;
THENCE, North 54 16 1/4 20 3/4 East, a distance of 461.08 feet to a
5/8-inch rod set for the point of curvature of a curve to the left;
THENCE, northeasterly, along the arc of said curve to the left, having a
radius of 330.00 feet, through a central angle of 31 12 1/4 32 3/4 (the
chord bears North 38 40 1/4 04 3/4 East a distance of 177.54 feet) an arc
distance of 179.75 feet to a 5/8-inch iron rod set for the point of
tangency of said curve;
[Page 6 of 12]
###-##-####
EXHIBIT "A"-1
THENCE, North 23 03 1/4 48 3/4 East, a distance of 82.06 feet to a
5/8-inch iron rod set in the common southwest line of a 35-foot wide
Tennessee Gas Pipeline Company Easement as described in Xxxxxx County
Clerk's File Nos. D814271 and K739784 and the northeast line of a 50-foot
wide Exxon Pipeline Easement (currently owned by Tejas Gas Pipeline) as
described in Volume 6439, Page 601 of the Xxxxxx County Deed Records;
THENCE, North 35 43 1/4 40 3/4 West, along the common line between said
Tennessee Gas Pipeline Easement and said Tejas Gas Pipeline Easement, a
distance of 1491.82 feet to a 5/8-inch iron rod set for an angle point;
THENCE, North 39 49 1/4 26 3/4 West, along the aforesaid common easement
line, a distance of 349.66 feet to a 5/8-inch iron rod set for an angle
point;
THENCE, North 33 06 1/4 56 3/4 West, along the aforesaid common easement
line, a distance of 127.08 feet to a 5/8-inch iron rod set in the arc of a
curve in the southerly right-of-way line of the aforementioned Xxxxxxxxx
Road;
THENCE, northeasterly, along the southerly right-of-way line of said
Xxxxxxxxx Road and along said curve to the left, having a radius of
2,850.00 feet, through a central angle of 16 18 1/4 14 3/4 (the chord bears
North 66 30 1/4 06 3/4 East a distance of 808.25 feet) an arc distance of
810.98 feet to a 5/8-inch iron rod found for the point of tangency of said
curve;
THENCE, North 58 20 1/4 59 3/4 East, along the southeast right-of-way line
of said Xxxxxxxxx Road, a distance of 457.16 feet to the POINT OF BEGINNING
and containing a computed area of 197.37 acres (8,597,500 square feet) of
land.
SAVE AND EXCEPT those certain tracts described as M.U.D. Director's Lots in
Xxxxxx County Clerk's File Nos. L108000, L108006 L108010, and K462965, and
SAVE AND EXCEPT those certain tracts described in the following 5 pages.
[Page 7 of 12]
###-##-####
EXHIBIT "A"-1
SAVE AND EXCEPT:
FIELD NOTES
Northpointe WCID Detention Site
(Restricted Reserve "B" in Canyon Gate Section One)
Description of 17.51 acres (762,856 square feet) of land out of the Xxxxxxx
Xxxxxxx Survey, Abstract No. 621, located in Xxxxxx County, Texas and being more
fully described by metes and bounds as follows (with bearings referenced to the
Texas State Plane Coordinate System, Xxxxx Xxxxxxx Xxxx, XXX 00):
COMMENCING at a point marking the intersection of a southwest line of a
50-wide Tejas Gas pipeline easement (granted to Humble Pipeline by deed
recorded in Volume 6439, Page 601 of the Xxxxxx County Deed Records) and a
northerly right-of-way line of Westlock Drive as recorded in the Partial
Replat of Westbourne, Section One (as recorded in Volume 316, Page 49 of
the Xxxxxx County Map Records);
THENCE, North 35 54 1/4 06 3/4 West, along a southwest line of said Tejas
Gas pipeline easement, a distance of 2434.06 feet to a point for a
southeast corner and POINT OF BEGINNING of the herein described tract;
THENCE, South 54 05 1/4 54 3/4 West, a distance of 457.00 feet to a point
for corner;
THENCE, North 35 54 1/4 06 3/4 West, a distance of 878.75 feet to a point
for corner;
THENCE, North 51 45 1/4 05 3/4 East, a distance of 317.27 feet to a point
for corner;
THENCE, North 35 54 1/4 06 3/4 West, a distance of 580.49 feet to a point
for corner;
THENCE, South 51 45 1/4 05 3/4 West, a distance of 307.75 feet to a point
for corner;
THENCE, North 35 54 1/4 06 3/4 West, a distance of 519.85 feet to a point
for corner;
THENCE, North 51 45 1/4 05 3/4 East, a distance of 307.75 feet to a point
for corner;
THENCE, North 35 54 1/4 06 3/4 West, a distance of 302.23 feet to a point
for corner;
THENCE, North 54 16 1/4 20 3/4 East, a distance of 142.69 feet to a point
in a southwest line of the aforementioned Tejas Gas pipeline easement;
THENCE, South 35 43 1/4 40 3/4 East, along a southwest line of said Tejas
Gas pipeline easement, a distance of 658.06 feet to an angle point;
THENCE, South 35 45 1/4 17 3/4 East, along a southwest line of said Tejas
Gas pipeline easement, a distance of 270.56 feet to an angle point;
THENCE; South 35 54 1/4 06 3/4 East, along a southwest line of said Tejas
Gas pipeline easement, a distance of 1365.27 feet to the POINT OF BEGINNING
and containing a computed area of 17.51 acres (762,856 square feet) of
land.
This description is based on a compilation of data and does not reflect a
staked boundary survey.
[Page 8 of 12]
###-##-####
EXHIBIT "A"-1
SAVE AND EXCEPT
FIELD NOTES
Director's Tract "A"
Xxxxxx County M.U.D. 280
Description of 0.1135 acre (4,942 square feet) of land out of the Xxxxxxx
Xxxxxxx Survey, Abstract No. 621, located in Xxxxxx County, Texas, and being
more fully described by metes and bounds as follows (with bearings referenced to
the PARTIAL REPLAT OF WESTBOURNE, SECTION ONE, as recorded in Volume 316, Page
49 of the Xxxxxx County Map Records);
COMMENCING at a point marking the southwest corner of a tract of land for
the right-of-way of Xxxxxxxxx Road (as described in Xxxxxx County Clerk's
File No. D900150);
THENCE, North 87 19 1/4 27 3/4 East, along the south right-of-way line of
said Xxxxxxxxx Road, a distance of 29.92 feet to the point of curvature of
a curve to the left;
THENCE, easterly, along the south right-of-way line of said Xxxxxxxxx Road
and along said curve to the left, having a radius of 2850.00 feet, through
a central angle of 13 23 1/4 59 3/4 (the chord bears North 80 37 1/4 29 3/4
East a distance of 665.01 feet) an arc distance of 666.52 feet to a point
in an easterly line of a 35-foot wide Tennessee Gas Pipeline easement (as
described in Xxxxxx County Clerk's File Nos. D814271 and K739784);
THENCE, South 33 06 1/4 30 3/4 East, along an easterly line of said
pipeline easement, a distance of 114.32 feet to an angle point;
THENCE, South 39 49 1/4 00 3/4 East, along an easterly line of said
pipeline easement, a distance of 348.86 feet to an angle point;
THENCE, South 35 43 1/4 14 3/4 East, along an easterly line of said
pipeline easement, a distance of 2251.38 feet to a point for the northwest
corner and POINT OF BEGINNING of the herein described tract;
THENCE, North 63 00 1/4 09 3/4 East, a distance of 50.00 feet to a point
for corner;
THENCE, South 35 43 1/4 14 3/4 East, a distance of 100.00 feet to a point
for corner,
THENCE, South, 63 00 1/4 09 3/4 West, a distance of 50.00 feet to a point
for corner;
THENCE, North 35 43 1/4 14 3/4 West, a distance of 100.00 feet to the POINT
OF BEGINNING and containing 4,942 square feet of land;
[Page 9 of 12]
###-##-####
EXHIBIT "A"-1
SAVE AND EXCEPT:
FIELD NOTES
Director's tract "C"
Xxxxxx County M.U.D. 280
Description of 0.1135 acre (4,942 square feet) of land out of the Xxxxxxx
Xxxxxxx Survey, Abstract No. 621, located in Xxxxxx County, Texas and being more
fully described by metes and bounds as follows (with bearings referenced to the
PARTIAL REPLAT OF WESTBOURNE, SECTION ONE, as recorded in Volume 316, Page 49 of
the Xxxxxx County Map Records):
COMMENCING at a point marking the southwest corner of a tract of land for
the right-of-way of Xxxxxxxxx Road (as described in Xxxxxx County Clerk's
File No. D900150);
THENCE, North 87 19 1/4 27 3/4 East, along the south right-of-way line of
said Xxxxxxxxx Road, a distance of 29.92 feet to the point of curvature of
a curve to the left;
THENCE, easterly, along the south right-of-way line of said Xxxxxxxxx Road
and along said curve to the left, having a radius of 2850.00 feet, through
a central angle of 13 23 1/4 59 3/4 (the chord bears North 80 37 1/4 29 3/4
East a distance of 665.01 feet) an arc distance of 666.52 feet to a point
in an easterly line of a 35-foot wide Tennessee Gas Pipeline easement (as
described in Xxxxxx County Clerk's File Nos. D814271 and K739784);
THENCE, South 33 06 1/4 30 3/4 East, along an easterly line of said
pipeline easement, a distance of 114.32 feet to an angle point;
THENCE, South 39 49 1/4 00 3/4 East, along an easterly line of said
pipeline easement, a distance of 348.86 feet to an angle point;
THENCE, South 35 43 1/4 14 3/4 East, along an easterly line of said
pipeline easement, a distance of 2251.38 feet to an angle point;
THENCE, North 63 00 1/4 09 3/4 East, a distance of 100.00 feet to a point
for the northwest corner and POINT OF BEGINNING of the herein described
tract;
THENCE, North 63 00 1/4 09 3/4 East, a distance of 50.00 feet to a point
for corner;
THENCE, South 35 43 1/4 14 3/4 East, a distance of 100.00 feet to a point
for corner;
THENCE, South 63 00 1/4 09 3/4 West, a distance of 50.00 feet to a point
for corner;
THENCE, North 35 43 1/4 14 3/4 West, a distance of 100.00 feet to the POINT
OF BEGINNING and containing 4,942 square feet of land.
[Page 10 of 12]
###-##-####
EXHIBIT "A"-1
SAVE AND EXCEPT;
FIELD NOTES
Director's Tract "D"
Xxxxxx County M.U.D. 280
Description of 0.1135 acre (4,942 square feet) of land out of the Xxxxxxx
Xxxxxxx Survey, Abstract No. 621, located in Xxxxxx County, Texas and being more
fully described by metes and bounds as follows (with bearings referenced to the
PARTIAL REPLAT OF WESTBOURNE, SECTION ONE, as recorded in Volume 316, Page 49 of
the Xxxxxx County Map Records):
COMMENCING at a point marking the southwest corner of a tract of land for
the right-of-way of Xxxxxxxxx Road (as described in Xxxxxx County Clerk's
File No. D900150);
THENCE, North 87 19 1/4 27 3/4 East, along the south right-of-way line of
said Xxxxxxxxx Road, a distance of 29.92 feet to the point of curvature of
a curve to the left;
THENCE, easterly, along the south right-of-way line of said Xxxxxxxxx Road
and along said curve to the left, having a radius of 2850.00 feet, through
a central angle of 13 23 1/4 59 3/4 (the chord bears North 80 37 1/4 29 3/4
East a distance of 665.01 feet) an arc distance of 666.52 feet to a point
in an easterly line of a 35-foot wide Tennessee Gas Pipeline easement (as
described in Xxxxxx County Clerk's File Nos. D814271 and K739784);
THENCE, South 33 06 1/4 30 3/4 East, along an easterly line of said
pipeline easement, a distance of 114.32 feet to an angle point;
THENCE, South 39 49 1/4 00 3/4 East, along an easterly line of said
pipeline easement, a distance of 348.86 feet to an angle point;
THENCE, South 35 43 1/4 14 3/4 East, along an easterly line of said
pipeline easement, a distance of 2251.38 feet to a point;
THENCE, North 63 00 1/4 09 3/4 East, a distance of 150.00 feet to a point
for the northwest corner and POINT OF BEGINNING of the herein described
tract;
THENCE, North 63 00 1/4 09 3/4 East, a distance of 50.00 feet to a point
for corner;
THENCE, South 35 43 1/4 14 3/4 East, a distance of 100.00 feet to a point
for corner;
THENCE, South, 63 00 1/4 09 3/4 West, a distance of 50.00 feet to a point
for corner;
THENCE, North 35 43 1/4 14 3/4 West, a distance of 100.00 feet to the POINT
OF BEGINNING and containing 4,942 square feet of land.
[Page 11 of 12]
###-##-####
EXHIBIT "A"-1
SAVE AND EXCEPT
FIELD NOTES
Director's Tract "E"
Xxxxxx County M.U.D. 280
Description of 0.1135 acre (4,942 square feet) of land out of the Xxxxxxx
Xxxxxxx Survey; Abstract No. 621, located in Xxxxxx County, Texas and being more
fully described by metes and bounds as follows (with bearings referenced to the
PARTIAL REPLAT OF WESTBOURNE, SECTION ONE, as recorded in Volume 316, Page 49 of
the Xxxxxx County Map Records);
COMMENCING at a point marking the southwest corner of a tract of land for
the right-of-way of Xxxxxxxxx Road (as described in Xxxxxx County Clerk's
File No. D900150);
THENCE, North 87 19 1/4 27 3/4 East, along the south right-of-way line of
said Xxxxxxxxx Road, a distance of 29.92 feet to the point of curvature of
a curve to the left;
THENCE, easterly, along the south right-of-way line of said Xxxxxxxxx Road
and along said curve to the left, having a radius of 2850.00 feet, through
a central angle of 13 23 1/4 59 3/4 (the chord bears North 80 37 1/4 29 3/4
East a distance of 665.01 feet) an arc distance of 666.52 feet to a point
in an easterly line of a 35-foot wide Tennessee Gas Pipeline easement (as
described in Xxxxxx County Clerk's File Nos. D814271 and K739784);
THENCE, South 33 06 1/4 30 3/4 East, along an easterly line of said
pipeline easement, a distance of 114.32 feet to an angle point;
THENCE, South 39 49 1/4 00 3/4 East, along an easterly line of said
pipeline easement, a distance of 348.86 feet to an angle point;
THENCE, South 35 43 1/4 14 3/4 East, along an easterly line of said
pipeline easement, a distance of 2251.38 feet to a point;
THENCE, North 63 00 1/4 09 3/4 East, a distance of 200.00 feet to a point
for the northwest corner and POINT OF BEGINNING of the herein described
tract;
THENCE, North 63 00 1/4 09 3/4 East, a distance of 50.00 feet to a point
for corner;
THENCE, South 35 45 1/4 14 3/4 East, a distance of 100.00 feet for corner;
THENCE, South 63 00 1/4 09 3/4 West, a distance of 50.00 feet to a point
for corner;
THENCE, North 35 43 1/4 14 3/4 West, a distance of 100.00 feet to the POINT
OF BEGINNING and containing 4,942 square feet of land.
[Page 12 of 12]
EXHIBIT "B"
ATTACHED TO AND MADE A PART OF THAT CERTAIN SERVICE AGREEMENT DATED XXXXX 0,
0000 XX AND BETWEEN CLEARWORKS TECHNOLOGIES, INC. AND LAND TEJAS DEVELOPMENT AT
NORTHPOINTE, L.L.C.
SERVICES
1. The Program as covered by the Agreement shall mean all services provided to
consumers located in the Territory. Services shall be defined as Basic and
Enhanced services and shall include the following:
BASIC SERVICES
Basic Telephone Services
Basic Cable TV Services
High Speed Internet Connectivity
Community Intranet
ENHANCED SERVICES
Voice Mail
Enhanced Cable TV Services
On-Demand Video Rental
Long Distance Telephone
2. ClearWorks shall provide the Basic Level Services of the Program to the
subscribed Customers by and through the HOA. ClearWorks shall invoice the
customers for such services as provided in the Agreement. The customers shall
pay their invoices directly to the HOA who shall tender same to CLWK.
3. ClearWorks shall provide the Enhanced Level Services of the Program to the
subscribed Customers directly to the Customer, and ClearWorks shall invoice
the Customer directly.
4. ClearWorks shall maintaine the Program at a technological level commensurate
with the standards for such Program prevailing in the industry in the Greater
Houston and surrounding areas.
5. ClearWorks shall maintain the Program price at a competitive level
commensurate with the standards for such Program prevailing in the industry
in the Greater Houston and surrounding areas.
6. ClearWorks shall provide end user support in terms of end user services
selection and answer and support all end user questions. The performance of
ClearWorks' customer support shall
17
CONFIDENTIAL--COMPANY AND CLEARWORKS TECHNOLOGIES, INC. SERVICE AGREEMENT -
COPYRIGHT (C)CLEARWORKS TECHNOLOGIES, INC.
be commensurate with the standards for such customer support prevailing in
the industry in the Greater Houston and surrounding areas.
7. ClearWorks shall maintain all field equipment and support personnel in
connection to the Program, including all support of all cable, electronics
and satellite dishes.
8. ClearWorks shall provide all infrastructure cabling within the Territory
necessary to deliver the Program.
9. ClearWorks shall provide all Head End electronics, including the necessary
number of satellite dishes as determined by ClearWorks.
10.ClearWorks will provide backup power to ensure consistent systems operation
in the event of a power outage.
11.ClearWorks will pay the monthly electricity xxxx incurred by ClearWorks as a
result of the head end building.
12.ClearWorks shall be responsible for insuring the contents of the head end
facility pursuant to the following coverages and limits:
Comprehensive General Liability $1,000,000 combined single including broad
form contractual, each occurrence for bodily broad form property damage,
xcu injury and property damage. hazards, completed operations, and product
liability.
CLWK shall name COMPANY as an additional named insured and shall waive its
rights to subrogation and provide a Certificate of Insurance to Company
substantiating such coverage upon request.
13.ClearWorks shall be responsible for payment of one-half of cost of the
expansion phase of the head end facility. Expansion costs are estimated to be
$35,000.
18
CONFIDENTIAL--COMPANY AND CLEARWORKS TECHNOLOGIES, INC. SERVICE AGREEMENT -
COPYRIGHT (C)CLEARWORKS TECHNOLOGIES, INC.
EXHIBIT "C"
ATTACHED TO AND MADE A PART OF THAT CERTAIN SERVICE AGREEMENT DATED MARCH 8,
1999 BY AND BETWEEN LAND TEJAS DEVELOPMENT AT NORTHPOINTE, L.L.C. AND CLEARWORKS
TECHNOLOGIES, INC.
COMPANY'S DUTIES AND RESPONSIBILITIES
1. COMPANY shall use its best efforts to ensure that a minimum of 95% of the
total single family homes located within the Territory at all given points of
time will be subscribed to the Program within 30 days of occupancy or resale
of each home, and shall become CUSTOMERS of CLWK through the HOA.
2. Except for the head end building expansion, the COMPANY shall be responsible
for the costs, construction, maintenance, including but not limited to
landscaping, of all buildings, foundations including HVAC and other physical
housing requirements for ClearWorks to implement the Program. Except for the
construction cost of the expansion of the head end building, the COMPANY will
specifically provide physical space to house equipment of the program at no
charge to CLWK.
3. At no cost to ClearWorks, COMPANY shall be responsible for granting permanent
access to easements throughout Territory for ClearWorks' cable installation
and other services arising out of or in connection to the Program and this
Agreement.
4. COMPANY shall be responsible for inclusion of ClearWorks in all marketing
materials associated with technology for Territory.
5. COMPANY shall use its best efforts to help amend the deed restrictions of all
new sections within Territory to require the Basic Level Services package
within the Program.
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CONFIDENTIAL--COMPANY AND CLEARWORKS TECHNOLOGIES, INC. SERVICE AGREEMENT -
COPYRIGHT (C)CLEARWORKS TECHNOLOGIES, INC.
EXHIBIT "D"
ATTACHED TO AND MADE A PART OF THAT CERTAIN SERVICE AGREEMENT DATED MARCH 8,
1999, BY AND BETWEEN LAND TEJAS DEVELOPMENT AT NORTHPOINTE, L.L.C.AND CLEARWORKS
TECHNOLOGIES, INC.
BASIC LEVEL SERVICE PRICING
COMPANY agrees to pay CLWK for the initial three (3) months of services of
Program under INITIAL THREE MONTHS PLAN as defined hereunder, for each home in
the Program (within 30 days of occupancy) pursuant to the sums set forth below,
subject to changes, additions, or deletions as determined by CLWK and as
provided herein. After the first three (3) months of Basic Level Services of the
Program paid by COMPANY, HOA shall be responsible to pay the monthly invoice for
the Basic Level of Services.
INITIAL THREE MONTHS PLAN
-------------------------
SERVICE COMPANY PRICE(3 MONTHS)
------- -----------------------
Basic Services
Enhanced Services
TOTAL .................................................. $239.55
BASIC PRICE PLAN
----------------
SERVICE XXX XXXXX (MONTHLY)
------- -------------------
Basic Local Telephone Service
Basic Cable TV
Internet Connectivity (10MB or
higher)
TOTAL* ..................................................... $78.14
20
CONFIDENTIAL--COMPANY AND CLEARWORKS TECHNOLOGIES, INC. SERVICE AGREEMENT -
COPYRIGHT (C)CLEARWORKS TECHNOLOGIES, INC.
EXHIBIT "E"
ATTACHED TO AND MADE A PART OF THAT CERTAIN SERVICE AGREEMENT DATED MARCH 8,
1999, BY AND BETWEEN LAND TEJAS DEVELOPMENT AT NORTHPOINTE, L.L.C. AND
CLEARWORKS TECHNOLOGIES, INC.
SERVICE DETAILS
---------------
SAVINGS MATRIX
SERVICE RETAIL COST HOA COST
------- ----------- --------
Basic Telephone .................................... $ 25
Basic Cable TV ..................................... $ 37.24
Internet ........................................... $ 356
Community Intranet ................................. N/A N/A
TOTAL .............................................. $418.24 $ 78.14
* COMPARED USING ISDN SERVICE AND RATES
BASIC LOCAL TELEPHONE SERVICE
Basic Local Telephone Service is defined as an analog dialtone line delivered to
the consumer with touch tone dialing service and without any extended calling
features. It is designed to support existing analog telephones which homeowners
may have supporting RJ-11C tip & ring 2-wire phone lines.
BASIC CABLE TV
CHANNEL ID CHANNEL ID
------- ---------------- ------- ----------------
2 KPRC - NBC 35 EWTN
3 Reserved 36 Family Channel
4 Reserved 37 HGTV
5 CG - Guard Gate 38 History Channel
6 CG - Pool 39 KHTV-Ind
7 Spare 40 HSN
8 KUHT -PBS 41 Learning Channel
9 TISD 42 Lifetime
21
CONFIDENTIAL--COMPANY AND CLEARWORKS TECHNOLOGIES, INC. SERVICE AGREEMENT -
COPYRIGHT (C)CLEARWORKS TECHNOLOGIES, INC.
10 TISD 43 MTV
11 KHOU-CBS 44 VH1
12 Spare 45 KXLN-IND
13 KRTK-ABC 46 Nashville Net
14 KRTK-ABC (HDTV) 47 Nickelodeon
15 A&E 48 KTMD-FOR
16 America's Voice 49 KTFH-IND
17 Angel One 50 QVC
18 Cartoon Net 51 KNWS
19 CNBC 52 SCI-FI
20 KTXH-IND 53 TBS
21 CNN 54 TNT
22 Headline News 55 Travel Channel
23 Comedy Central 56 Trinity
24 Country Music 57 KVVV-IND
25 Court TV 58 TV Land
26 KHIV-FOX 59 TV-FOOD
27 CSPAN 60 USA
28 CSPAN2 61 Weather Channel
29 Discovery 62 Spare
30 Disney 2 63 Spare
31 E! 64 Spare
32 XXXX 00 Xxxxx
33 ESPN2 66 Spare
34 ESPNews 67-79 Spare
* ClearWorks reserves the right to change the Basic Cable TV channel lineup
shown and described herein for any reason without prior notice; provided
however, that the quantity and quality of the channel lineup is not materially
diminished from the original channel lineup.
INTERNET CONNECTIVITY (10MB OR HIGHER)
Dedicated Internet connectivity will be delivered via a shared Ethernet 10MB/s
connection into the home. This connection will plug into the IBM Network
Connection Center for distribution throughout the home. Each home will be
assigned one (1) E-Mail address associated with their connection.
22
CONFIDENTIAL--COMPANY AND CLEARWORKS TECHNOLOGIES, INC. SERVICE AGREEMENT -
COPYRIGHT (C)CLEARWORKS TECHNOLOGIES, INC.
EXHIBIT "F"
ATTACHED TO AND MADE A PART OF THAT CERTAIN SERVICE AGREEMENT DATED MARCH 8,
1999, BY AND BETWEEN LAND TEJAS DEVELOPMENT AT NORTHPOINTE, L.L.C. AND
CLEARWORKS TECHNOLOGIES, INC.
COMPENSATION
COMPANY shall receive a monthly compensation in the amount of $10.00 per
customer on all paid invoices for Basic Level Services per customer of the
Program.
The compensation shall be paid not later than fifteen (15) days after receipt by
CLWK of HOA'S monthly payments received from customers for Basic Level Services
under the Program. Interest at the rate of 1-1/2% per month, or the maximum rate
allowed by law, whichever is less, shall be charged and due on all past due
payments to the Company.
COMPANY SHALL BE PAID THEIR RESPECTIVE COMPENSATION PER CUSTOMER AFTER CLWK HAS
RECEIVED A PAYMENT FROM EACH CUSTOMER FOR SERVICES OF PROGRAM IN IMMEDIATE
AVAILABLE GOOD FUNDS. i.e. IF ONE CUSTOMER'S INVOICE PAYMENT IS RECEIVED BY
CLWK, THEN CLWK OWES THE COMPANY $10 WHETHER OR NOT ANY OTHER CUSOMERS PAY THEIR
INVOICES.
Right to Inspection. COMPANY shall have the right to inspect CLWK's customer
records, specifically customer invoices and subscription agreements which arise
from all levels of services of the Program on a quarterly basis provided COMPANY
gives CLWK ten (10) days advanced written notice of its intent to inspect.
COMPANY: CLWK:
Land Tejas Development at Northpointe, L.L.C. ClearWorks Technologies, Inc.
By: /s/ XX XXXXXX By: /s/XXXXXXX X. XXXXXXX
Xx Xxxxxx, Co-Manager Name: Xxxxxxx X. XxXxxxx
Title: CEO
By: /s/ XXXXXXXX XXXXXX
Xxxxxxxx Xxxxxx, Co-Manager
23
CONFIDENTIAL--COMPANY AND CLEARWORKS TECHNOLOGIES, INC. SERVICE AGREEMENT -
COPYRIGHT (C)CLEARWORKS TECHNOLOGIES, INC.
EXHIBIT "G"
ATTACHED TO AND MADE A PART OF THAT CERTAIN SERVICE AGREEMENT DATED MARCH 8,
1999, BY AND BETWEEN CLEARWORKS TECHNOLOGIES, INC. AND LAND TEJAS DEVELOPMENT AT
NORTHPOINTE, L.L.C.
PRICING TERMS PURSUANT TO ARTICLE 12 OF THE AGREEMENT
In the event the COMPANY purchases the Program components pursuant to Article 12
of this Agreement, COMPANY and CLWK shall mutually agree upon an independent
third party to assess the fair market value (FMV) of the items listed below:
BUYOUT COSTS FOR INFRASTRUCTURE
TOTAL
-----
PHYSICAL INFRASTRUCTURE - CABLING QTY
--------------------------------- ---
Cabling Northpointe Section 1 254 FMV
Cabling Northpointe Section 2 69 FMV
Cabling Northpointe Section 3 86 FMV
Cabling Northpointe Phase 5 271 FMV
Cabling Northpointe Section 4/Villages 105 FMV
Cabling Northpointe Section 5/Villages 000 XXX
Xxxxxxx Xxxxxxxxxxx Xxxxx 0 159 FMV
Cabling Phase A2 102 FMV
BASIC CABLE TV HEAD END
Covsersion Basic Cable / Per Channel 50 FMV
Dish and Switch Equipment FMV
ENHANCED CABLE TV HEAD END
Digital Satellites 1,2,3,4 4 FMV
Digital Satellites R1,R3,R7,R9,R11 5 FMV
Spare For Hot Swap 1 FMV
Transcoder 5 FMV
Mod. Equipment 1 FMV
Ethernet Hubs and Modems 1 FMV
TELEPHONE SWITCH & OTHER PHONE EQUIP.
Phone Switch Equipment 1 FMV
INTERNET ROUTER & OTHER DATA EQUIPMENT
IP Routing Equipment Downstream 1 FMV
24
CONFIDENTIAL--COMPANY AND CLEARWORKS TECHNOLOGIES, INC. SERVICE AGREEMENT -
COPYRIGHT (C)CLEARWORKS TECHNOLOGIES, INC.
XX Xxxxxxxxxxx Xxxxxxx 0 000 XXX
XX Northpointe Section 2 69 FMV
US Northpointe Section 3 86 FMV
US Northpointe Phase 5 271 FMV
US Northpointe Section 4/Villages 105 FMV
US Northpointe Section 5/Villages 101 FMV
US Northpointe Phase 6 159 FMV
US Phase A2 000 XXX
XXXX XXX FACILITY
Head End Building FMV
Satellite Pad FMV
Satelitte Dishes FMV
SET TOP BOXES
STB Northpointe Section 1 000 XXX
XXX Xxxxxxxxxxx Xxxxxxx 2 00 XXX
XXX Xxxxxxxxxxx Section 3 00 XXX
XXX Xxxxxxxxxxx Xxxxx 0 000 XXX
XXX Xxxxxxxxxxx Xxxxxxx 4/Villages 000 XXX
XXX Xxxxxxxxxxx Xxxxxxx 5/Villages 000 XXX
XXX Xxxxxxxxxxx Xxxxx 0 159 FMV
STB Phase A2 102 FMV
TOTAL Project FMV
FMV
Upon termination of this Agreement by COMPANY, ClearWorks shall have no further
rights to occupy the head end facility; provided, however, that COMPANY has
purchased the head end facility for fair market value.
Any purchase of the infrastructure shall include an on going license to use and
operate the technology without any further consideration beyond the payment
provided herein.
COMPANY: CLWK:
Land Tejas Development at Northpointe, L.L.C. ClearWorks Technologies, Inc.
By: /s/ XX XXXXXX By: /s/XXXXXXX X. XXXXXXX
Xx Xxxxxx, Co-Manager
Name: Xxxxxxx X. XxXxxxx
By: /s/ XXXXXXXX XXXXXX
Xxxxxxxx Xxxxxx, Co-Manager Title: CEO
Xxxxxxxx Xxxxxx
25
CONFIDENTIAL--COMPANY AND CLEARWORKS TECHNOLOGIES, INC. SERVICE AGREEMENT -
COPYRIGHT (C)CLEARWORKS TECHNOLOGIES, INC.
SERVICE AGREEMENT
THIS AGREEMENT made and entered into effective the 26th day of March, 1999, by
and between ClearWorks Technologies, Inc., a Delaware corporation (hereinafter
called "CLWK") and the Canyon Gate at Northpointe Home Owner's Association
(hereinafter called "HOA").
W I T N E S S E T H:
WHEREAS, Land Tejas Development at Northpoint, L.L.C. ("COMPANY") is a developer
of a residential community located in Houston, Xxxxxx County, Texas (hereinafter
referred to as the "Territory"); and
WHEREAS, COMPANY has established a Home Owners Association ("HOA") for such
Territory, wherein HOA in the Territory desires to purchase bundled digital
services exclusively from CLWK, and
WHEREAS, CLWK has developed either directly or through its affiliated entities
an organization which has the ideas, concepts, know-how or techniques to effect
a bundled digital service program; and
WHEREAS, CLWK shall effect the bundled digital service program in the Territory
set forth in Exhibit "A", attached hereto and made a part hereof; and
WHEREAS, HOA recognizes that bundled digital services are specialized, high
technology products and services that require the highest standards of quality
control of materials, assembling and testing, and
WHEREAS, HOA desires to obtain exclusively from CLWK and CLWK desires to furnish
the bundled digital service program hereinafter set forth, provided, however,
that individual home owners are not obligated under this Agreement to
exclusively contract with CLWK for services and HOA has the right to provide
easements to other service providers; and
WHEREAS, the bundled digital service program which CLWK can provide will be very
beneficial and unique to the home owners in the HOA and will enhance the value
of their homes; however, CLWK is unwilling to make the initial financial and
time investment without a grant of exclusivity from the HOA; therefore, HOA is
herein granting to CLWK an exclusive bundled digital service program within the
Territory; and
NOW, THEREFORE, for and in consideration of the mutual advantages and benefits
accruing to the parties hereto, the sufficiency of which is hereby acknowledged,
the parties hereto agree that the following shall constitute the agreement
between CLWK and HOA concerning the development and installation of the bundled
digital service program, as described herein. This Agreement upon execution by
CLWK and HOA shall supersede and replace all prior agreements and verbal
conversations between CLWK and HOA regarding the transaction contemplated
herein.
1
CONFIDENTIAL--HOA AND CLEARWORKS TECHNOLOGIES, INC. SERVICE AGREEMENT -
COPYRIGHT (C)CLEARWORKS TECHNOLOGIES, INC.
1. BUNDLED DIGITAL SERVICE PROGRAM
For purposes of this Agreement, the entire Bundled Digital Service Program
shall hereinafter be referred to as the "Program". Exhibit B, attached
hereto and made a part hereof lists the elements, both tangible and
intangible, associated with the Program. It is the HOA's desire that
various elements of the Program be the responsibility of CLWK to design
and install, and that such elements shall be outlined in Exhibit B.
Exhibit C, attached hereto and made a part hereof, lists the elements of,
and associated with the Program, both tangible and intangible, which shall
be the responsibility of HOA.
Unless otherwise defined herein, the term "industry standards" shall mean
those standards prevailing in the industry as applied to suppliers of
cable T.V., telephone services, and internet services to the general
public within the Houston metropolitan and surrounding area.
2. SCOPE OF CLWK'S SUPPLIED SERVICES
Attached hereto and made a part hereof is Exhibit B entitled "Services."
This Exhibit B details the elements of the Program CLWK will provide in
accordance with the terms and conditions set forth in this Agreement. The
services listed under each element shown on Exhibit "B" are the maximum
specifications required for the Program.
3. COMMENCEMENT DATE
CLWK agrees to commence the design and installation of the Program in the
Territory upon the execution of this Agreement, but in no event later than
March 22, 1999.
4. TERM OF PERFORMANCE
HOA shall enter into this Agreement for the Program exclusively with CLWK
for a term of twenty-five (25) years from the date of execution of this
Agreement. It is understood and agreed that HOA shall not enter into a
similar agreement(s) with any other person or entity for the elements,
components and services contemplated under this Agreement and/or Program
for a term of 25 years from the date hereof, unless mutually specifically
agreed and defined in writing between HOA and CLWK.
This Agreement shall continue in force and effect for 25 years from the
date of execution of this Agreement until the end of such term unless
terminated sooner pursuant to Article 12 of this Agreement.
5. COMPENSATION
5.1 Exhibit D, entitled Basic Level Services Pricing, attached hereto
and made a part hereof by reference, describes the rates for basic
services of the Program subject to changes, additions, or deletions
as determined by CLWK and as provided herein. Moreover, the basic
rates shall be subject to modification commiserate with industry
standards for pricing of similarly bundled digital services, but in
no event to exceed
2
CONFIDENTIAL--HOA AND CLEARWORKS TECHNOLOGIES, INC. SERVICE AGREEMENT -
COPYRIGHT (C)CLEARWORKS TECHNOLOGIES, INC.
the industry standard for retail pricing of each individual service
if purchased separately. Enhanced service pricing and program
contents shall be similar to industry standards for similar services
commonly available in the greater Houston area. Exhibit E, entitled
Service Details, attached hereto and made a part hereof by
reference, describes the basic services of the Program, subject to
changes, additions, or deletions as determined by CLWK and as
provided herein.
5.2 INVOICING. In the case of Basic Level Services of the Program CLWK
shall submit an invoice to each individual CUSTOMERS. HOA shall
collect these funds and forward same on a monthly basis to CLWK
after having subtracted Two Dollars ($2.00) per CUSTOMER paid
invoice. Interest at the rate of 1-1/2% per month, or the maximum
rate allowed by law, whichever is less, shall be charged and due on
all past due accounts.
In the event HOA received monies from the CUSTOMER and fails to
remit monies to CLWK in a timely manner, HOA shall be liable for
material breach of contract and shall be liable for the full amount
of the monies received from CUSTOMER and interest plus any other
appropriate amounts due CLWK. It is agreed that time is of the
essence in CLWK receiving payment of its invoices and that CLWK
reserves the rights to suspend services to specific homeowners for
such homeowner's nonpayment of invoices in a timely fashion.
IN NO EVENT SHALL HOA BE LIABLE FOR NON-PAYING CUSTOMERS.
In the case of Extended Level Services of the Program, which are
payable according to the amount of usage by the CUSTOMER, CLWK shall
submit invoices directly to the CUSTOMER monthly for the Extended
Level Services of the Program which were rendered in the prior
month. Such invoices shall be due and payable to CLWK by the
CUSTOMER upon receipt of the invoice, and CLWK reserves the right to
suspend services for lack of timely payment.
WITH RESPECT TO THE BASIC LEVEL SERVICES AND ENHANCED LEVEL
SERVICES, CLWK RESERVES THE RIGHT TO CANCEL OR SUSPEND AT CLWK'S
SOLE OPTION, SERVICES OF THE PROGRAM TO CUSTOMERS DUE TO NONPAYMENT
OF ANY INVOICE(S) OVER 60 DAYS PAST DUE AND RETRIEVE AND REPOSSESS
ALL COMPONENTS AND EQUIPMENT FROM THE NON PAYING CUSTOMER IN
CONNECTION WITH THE PROGRAM.
5.3 HOA REBATE: Attached hereto and made a part hereof is Exhibit F
entitled "REBATE". HOA is entitled, upon receipt of funds on each
CUSTOMER'S paid invoice to withhold Two Dollars ($2.00) prior to
forwarding the funds collected by HOA on CLWK's behalf. HOA SHALL
WITHHOLD ITS RESPECTIVE
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REBATE ONLY AFTER CLWK HAS RECEIVED FULL PAYMENTS FOR SERVICES OF
PROGRAM.
5.4 CURRENCY: Unless otherwise agreed, payment for all levels of the
Program shall be in U.S. dollars.
5.5 TAXES. Any sales, use or other similar type taxes are not included
in the price listed on Exhibits D and E, and such taxes shall be for
the account of and be itemized separately to CUSTOMER and HOA.
5.6 DISPUTED INVOICES. In cases of legitimate disputes which arise
between CUSTOMER, HOA and CLWK which represent less than the full
invoice amount, CUSTOMER shall pay the undisputed amount to CLWK
immediately.
6. MODIFICATIONS
Changes in Program. The parties agree that the Program to be provided
hereunder and the compensation therefor shall be reviewed by CLWK not more
often than every 12 months, commencing from the date hereof. Any changes
to the Program, deletions or changes in compensation may be made by CLWK
provided CLWK provides all parties hereto thirty (30) days prior written
notice. Any changes to the Program contents or pricing shall be in
conformity with industry standards in the greater Houston metropolitan
area.
7. MARKETING
7.1 HOA agrees to and shall permit CLWK to distribute and place its
marketing materials regarding the Program in all sales offices in
the respective Territory.
7.2 CLWK shall have direct access to CUSTOMERS in order to resolve
issues relating to the implementation, providing, and servicing of
the Program.
8. INDEPENDENT CONTRACTOR
8.1 CLWK shall be an independent contractor and CLWK and its employees
shall not be deemed for any purposes to be the agent or servant of
HOA. Neither CLWK nor HOA shall have the right or authority to
execute any contract or legal document for, or to assume, create, or
incur any liability or any obligation of any kind, express or
implied, against or in the name of the other party or parties
hereto, unless expressly authorized in writing by the party granting
the agency.
8.2 Notwithstanding the foregoing paragraph, HOA shall be responsible
for subscribing CUSTOMERS to the Basic Level Services of the Program
and processing all subscription agreements with CUSTOMERS regarding
the Basic Level Services of the Program described under this
Agreement. HOA shall provide CLWK with all current subscription
agreements for each house within the Territory, including but not
limited to new subscription agreements, suspensions, cancellations
and
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renewals. It is understood and agreed that CLWK shall provide the
subscription agreement/customer contract form(s).
9. WARRANTY
9.1 The Program performed by CLWK hereunder will be performed in a
workmanlike manner commensurate with the standards for such services
prevailing in the industry within the greater Houston and
surrounding areas. CLWK further makes no warranty regarding the
level of performance of COMPANY'S, HOA'S or CUSTOMER'S equipment or
facilities.
9.2 With respect to the telephone services of the Program, CLWK'S only
obligation hereunder shall be to provide replacement or alternate
telephone services in the event of telephone service failure in
connection to the Program; that is CLWK shall replace such telephone
service or find alternate service substantially equal or similar to
the original service or product within a reasonable time
commensurate with the standards prevailing in the industry and as
outlined by the Public Utilities Commission of Texas.
9.3 THE FOREGOING IS EXPRESSLY IN LIEU OF ALL OTHER WARRANTIES, EXPRESS,
IMPLIED AND STATUTORY, INCLUDING WITHOUT LIMITATION THE IMPLIED
WARRANTIES OF MERCHANTABILITY AND FITNESS. THE FOREGOING IS CLWK'S
ONLY OBLIGATION.
10. RELEASE AND INDEMNITY
10.1 CLWK agrees to protect, defend, indemnify and hold harmless HOA, its
respective parent, subsidiaries and affiliated companies, and their
employees, subcontractors and their insurers from and against any
claim, demand, cause of action, loss, expense award, obligation to
indemnify another, judgment or liability on account of illness,
injury or death to the employees of CLWK and CLWK'S subcontractors
and/or damage to or loss or destruction of the property of CLWK
arising directly or indirectly out of the performance or
nonperformance of this Agreement regardless of omissions or
negligence, in whole or in any part, of HOA.
CLWK agrees to protect, defend and indemnify and hold harmless HOA,
its respective parent subsidiaries, affiliated companies and their
employees and contractors, managing agents and their insured from
any and all claim demand, causes of action, loss, expense award,
judgment or liability of any kind brought by CUSTOMER on account of
quality of services provided CLWK, literature provided by CLWK or
CLWK's performance under the program or due to HOA providing CLWK
marketing materials.
HOA agrees to protect, defend, indemnify and hold harmless CLWK, its
parent, subsidiaries and affiliated companies, and its and their
employees, subcontractors
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and its and their insurers from and against any claim, demand, cause
of action, loss, expense award, obligation to indemnify another,
judgment or liability on account of illness, injury or death to the
employees of HOA and HOA'S subcontractors and/or damage to or loss
or destruction of the property of HOA arising directly or indirectly
out of the performance or nonperformance of this Agreement
regardless of omissions of negligence, in whole or in any part, of
CLWK.
CLWK and HOA are each responsible to third parties to the extent of
their own negligence.
Notwithstanding any of the indemnities and liabilities specifically
referred to above, neither CLWK or HOA shall be liable to the other
with respect to any consequential loss including, but not limited
to, loss of anticipated profit, loss of anticipated revenue, loss of
product, or loss of use of money, arising or alleged to arise out of
either HOA or CLWK'S failure to properly carry out its obligations
hereunder or due to omissions or negligence, in whole or in any
part, of the party at fault, its subcontractors or vendors in any
part, of party at fault, its subcontractors or vendors or strict
liability, and regardless of whether pre-existing the execution of
the Agreement.
10.2. THIS AGREEMENT CERTIFIES THAT HOA HAS THE RIGHT TO CONTRACT FOR
CUSTOMER(S), PRESENT AND FUTURE, AND TO GRANT SUCH INDEMNIFICATION
AND BIND CUSTOMERS BY THE COVENANTS, OBLIGATIONS, INDEMNIFICATION
PROVISIONS AND AGREEMENTS CONTAINED HEREIN. NO NEW OR SUCCESSOR HOA
FOR THE TERRITORY OR ANY PART THEREOF SHALL BE FORMED WITHOUT
ACCEPTING AND ASSUMING IN WRITING THE COVENANTS, OBLIGATIONS,
INDEMNIFICATION PROVISIONS AND AGREEMENTS CONTAINED HEREIN.
11. LIMITATION OF LIABILITY
11.1 CLWK'S LIABILITY FOR DAMAGES TO HOA AND/OR OTHERS FOR ANY CAUSE
WHATSOEVER, AND REGARDLESS OF THE FORM OF ACTION, WHETHER IN
CONTRACT OR IN TORT INCLUDING NEGLIGENCE AND STRICT LIABILITY, SHALL
BE LIMITED TO THE AMOUNTS, AS APPLICABLE, RECOVERABLE FROM AND UNDER
INSURANCE WHICH CLWK HAS AND/OR WILL HAVE IN FORCE.
11.2 HOA'S LIABILITY FOR DAMAGES TO CLWK AND/OR OTHERS FOR ANY CAUSE
WHATSOEVER, AND REGARDLESS OF THE FORM OF ACTION, WHETHER IN
CONTRACT OR IN TORT INCLUDING NEGLIGENCE AND STRICT LIABILITY, SHALL
BE LIMITED TO THE AMOUNTS, AS
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APPLICABLE, RECOVERABLE FROM AND UNDER INSURANCE WHICH HOA HAS
AND/OR WILL HAVE IN FORCE.
11.3 IN NO EVENT SHALL CLWK AND HOA BE LIABLE FOR INCIDENTAL, SPECIAL,
INDIRECT, CONSEQUENTIAL OR EXEMPLARY DAMAGES, INCLUDING BUT NOT
LIMITED TO TREBLE DAMAGES UNDER ANY DECEPTIVE TRADE PRACTICE ACT.
11.4 CLWK shall insure its liabilities and indemnity obligations
hereunder with insurance or qualified self-insurance with the
following coverage's and limits:
COVERAGE PER OCCURRENCE/AGGREGATE
-------- ------------------------
Worker's Compensation Statutory (Texas)
Employer's Liability $1,000,000
Comprehensive General Liability $1,000,000 each
occurrence/2,000,000 general
aggregate
including broad form contractual, each occurrence for bodily
broad form property damage, xcu injury and property damage.
hazards, completed operations, and 2,000,000 products comp/op agg
product liability. 300,000 fire damage (any one fire)
Comprehensive Auto Liability $1,000,000 combined single
(owned and non-owned) limit each occurrence for bodily
injury and property damage.
HOA shall insure its liabilities and indemnity obligations hereunder with
insurance or qualified self insurance with the following coverages and limits:
COVERAGE
--------
Directors and officers Liability
Insurance
Comprehensive General Liability
Insurance $1,000,000.00
11.5 Each party will give the other party not less than thirty (30) days
advance written notice of any material changes in any insurance
policy applicable hereto.
11.6 Prior to commencing performance of the Agreement, the parties shall
provide a Certificate of Insurance evidencing the required coverage.
11.7 Each party named shall name the other party as an additional named
insured and each party shall waive its rights to subrogation;
provided, however, that the additional named insured and waiver of
subrogation provisions set forth herein shall only apply as to those
risks the party has expressly agreed to bear or against which the
party has agreed to indemnify the other herein.
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12. TERMINATION
12.1 Either party upon advanced written notice to that effect to the
other party, shall have the right to terminate this Agreement at any
time and without judicial decision or resolution in the event that
the latter fails to observe the material provisions and conditions
hereof, and shall fail to correct any material default within 180
business days after the party alleging such material default has
given written notice thereof.
12.2 Upon termination of this Agreement, all funds received by HOA from
CUSTOMERS shall be paid to CLWK immediately.
12.3 This Article expressly prohibits any collusion between HOA and
COMPANY to terminate the Agreement.
12.4 In the event CLWK fails to provide telephone services commensurate
to those standards outlined by the Public Utilities Commission of
Texas, then upon mutual consent among the parties, HOA may engage
another telephone company to provide such telephone services, and
CLWK'S failure to provide such telephone services shall not be
considered a material default or failure to observe the material
provisions and conditions hereof for purposes of this Article 12.
Provided, however, that upon HOA'S termination of the telephone
services as provided herein, CLWK shall grant CUSTOMERS and HOA a
discount proportionate to the price of the telephone service charged
under the Program. Any and all rebates received by HOA shall be
reduced proportionately.
13. ASSIGNMENTS AND SUBCONTRACTS
Neither party shall assign or subcontract its duties or obligations
hereunder without the written consent of the other party; provided,
however, CLWK may subcontract the performance of the Program, or portions
thereof, to any of CLWK'S subsidiaries or affiliates, successors and
merger entities without such consent from the other parties hereto.
In the event of an assignment by the HOA to which CLWK has consented, the
HOA'S assignee or its legal representative shall agree in writing with
CLWK to personally assume, perform and be bound by the covenants,
obligations, indemnification provisions and agreements contained herein;
however, such assignment shall not relieve HOA from their obligations
hereunder unless specifically agreed in writing by CLWK.
14. CONFIDENTIALITY
Any Confidential Information transmitted by one party hereto ("Disclosing
Party") to the other party hereto ("Receiving Party") shall be retained by
the Receiving Party as confidential and not disclosed to any third party
without the written consent of the Disclosing Party. "Confidential
Information" includes, but is not limited to all information, written and
oral, relating to the Disclosing Party, such as the Disclosing Party's
market intelligence, unannounced information regarding the Program,
technical, scientific and financial information; data, drawings, designs,
processes, procedures,
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formulas, software, source codes, programs, programming documentation,
disks and other intellectual property and improvements relating to the
Program and the Disclosing Party. The parties to this Agreement understand
and acknowledge that the Confidential Information is valuable, special and
unique assets and trade secrets of the Disclosing Party and that the
Disclosing Party has taken measures to prevent Confidential Information
from becoming available to persons other than those selected by the
Disclosing Party to have access to such Confidential Information for
limited purposes. The Receiving Party undertakes to protect and preserve
the Confidential Information as confidential, and contract with and
instruct any officer, director, employee, agent, contractor or affiliate
of the Receiving Party receiving any or all of the Confidential
Information to treat it as confidential, and not to divulge, publish or
disseminate the Confidential Information, in whole or in part, to any
other person or entity except by written permission by the Disclosing
Party. In the event of a breach or threatened breach by the Receiving
Party, or any other person or entity by or through the Receiving Party, of
the provisions of this Confidentiality Agreement, the Disclosing Party
shall, in addition to any other available remedies, be entitled to an
injunction restraining the Receiving Party from disclosing, in whole or in
part, any such Confidential Information to any person, firm or corporation
to whom any of such Confidential Information may be disclosed or is
threatened to be disclosed.
The confidentiality obligations hereunder shall not extend to any
information that is:
a. Already in the possession of the Receiving Party or its parent,
subsidiaries or affiliates;
b. Already in the public domain;
c. Subsequently becomes a part of the public domain through no fault or
breach of the Receiving Party;
d. Is disclosed by others to the Receiving Party or its parent,
subsidiaries or affiliates without breach of any obligation to the
Disclosing Party; or
e. Required by law to be disclosed, but only to the extent and to such
parties as required by such law.
The obligations set forth in this Article shall extend beyond the
duration of the Agreement.
15. INVENTIONS AND RESERVATION OF RIGHTS
CLWK shall have the exclusive, free and irrevocable right to use, disclose
and practice without restriction, any and all inventions, ideas and
improvements made by CLWK or its agents, affiliates and employees relating
to or in association with the Program provided hereunder. IT IS CLEARLY
UNDERSTOOD AND AGREED BY ALL PARTIES THAT CLWK HAS AND RETAINS ALL
OWNERSHIP, RIGHT, TITLE AND INTEREST IN AND TO THE PROGRAM, SOFTWARE,
HARDWARE, INTELLECTUAL PROPERTY AND COMPONENTS, SERVICES AND PRODUCTS
WHETHER NOW IN EXISTENCE OR DEVELOPED AND INSTALLED IN THE FUTURE WHETHER
BY OR THROUGH CLWK AND/OR HOA.
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Except as expressly set forth in this Agreement, HOA acknowledges and
agrees that HOA has, and shall have, no right or interest in (a) the
Program and components, software, hardware, intellectual property,
services and products in connection to the Program, (b) any CLWK
proprietary or licensed technology, (c) any CLWK proprietary marks, (d)
CLWK Program design, software, source codes and improvements, or (e) any
other rights or property of CLWK, all of which are expressly reserved and
shall remain the rights and property of CLWK.
It is also agreed that HOA shall have the exclusive, free and irrevocable
right to use, disclose and practice without restriction, any and all
inventions, ideas and improvements made solely by HOA or its agents,
affiliates and employees relating to or in association with the Program
provided hereunder.
Except as expressly set forth in this Agreement, CLWK acknowledges and
agrees that CLWK, has, and shall have, no right or interest in (a) any HOA
proprietary or licensed technology, (b) any HOA proprietary marks, (c) HOA
software, source codes and improvements, (d) Territory community intranet
(except to the extent of any and all CLWK liens for unpaid CLWK services
on such community intranet) or (e) any other rights or property of HOA all
of which are expressly reserved and shall remain the rights and property
of HOA.
16. LIENS AND ENCUMBRANCES
It is agreed and understood that HOA shall ensure that the Program and
products and components thereto are free from any and all liens and
encumbrances, and shall take whatever action necessary to immediately
cause any liens or encumbrances to be removed.
It is agreed and understood that CLWK shall ensure that the work site of
the Program is free from any and all liens and encumbrances arising out of
CLWK'S performance of services under this Agreement, and shall take
whatever action necessary to immediately cause any liens or encumbrances
to be removed.
17. NOTICES
All notices and other communications which are required or which may be
given hereunder pertaining to this Agreement shall be in writing and sent
via registered or certified mail, return receipt requested, postage
prepaid, telecopier or telex, to the following address:
ClearWorks Technologies, Inc.
Attention: Xxxxxxx X. XxXxxxx, President
000 X. Xxxx, Xxxxx 000
Xxxxxxx, Xxxxx 00000
Telecopier: 000-000-0000
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Canyon Gate at Northpointe Home Owner's Association
0000 XXXX XXXXXXX #000
XXXXXXX, XX 00000
Telecopier No. 000-000-0000
Attn: XXXXX XXXXXXXXX
Notices shall be deemed given when received by the addressee as evidenced
by return receipt or transmission acknowledgment or receipt. Any change of
address shall be notified in writing at least 30 days in advance to the
other parties.
18. FORCE MAJEURE
Neither party under this agreement shall be responsible for
non-performance occasioned by any causes beyond such party's reasonable
control, including but not limited to acts of God, war, riot, civil
disobedience or disturbance, weather, impracticality, accident, strike or
other labor disputes, delays of suppliers, contractors or carriers, fire,
flood or casualty, governmental or judicial actions and shortages of
material, components, fuel, labor or facilities. With respect to providing
telephone services during a catastrophe as defined by the Public Utilities
Commission of Texas, CLWK shall perform in a manner commensurate with the
standards for such telephone services as outlined by the Public Utilities
Commission of Texas. IN NO EVENT SHALL CLWK AND HOA BE ENTITLED TO
INCIDENTAL, SPECIAL, INDIRECT, CONSEQUENTIAL OR EXEMPLARY DAMAGES FOR LATE
PERFORMANCE OR FAILURE TO PERFORM DUE TO FORCE MAJEURE.
19. POLICIES AND PROCEDURES
The Program supplied by CLWK under this Agreement shall be subject to and
supplied in accordance with CLWK'S policies and procedures, current and
future, applicable to such Program.
20. LAWS
20.1 This Agreement shall be construed and enforced under the laws of the
State of Texas, U.S.A. CLWK and HOA hereby submit themselves to the
jurisdiction and venue of the courts of Xxxxxx County, Texas and
agree that said courts shall have exclusive jurisdiction and venue
on any suits relating to this Agreement other than suits for
judgment upon any arbitration award hereunder.
20.2 Any controversy or claim arising out of or relating to this
Agreement, or the breach thereof, shall be settled by binding
arbitration in Houston, Xxxxxx County, Texas in accordance with the
Commercial Arbitration Rules of the American Arbitration
Association, and judgment upon the award rendered by the
arbitrator(s) may be entered in any court having jurisdiction
thereof.
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21. SEVERABILITY
If any provision of this Agreement is declared null and void, or voidable,
by a court of competent jurisdiction, then that provision will be
considered severable in the most minimal amount possible and the remaining
provisions of this Agreement shall remain in full force and effect.
22. NO WAIVER
Any party's failure to enforce any of the provisions of this Agreement
shall not effect a waiver of any violation thereof nor preclude
enforcement of that or any other provisions hereof at that or any other
time.
23. ENTIRE AGREEMENT
This Agreement and its Exhibits represent the final, complete, and
exclusive understanding and agreement between the parties hereto with
respect to the Program and the subject matter hereof and may not be
amended except in writing signed by the officers or authorized
representatives of both parties. This Agreement shall inure to the benefit
of and be binding upon the parties hereto, their heirs, executors,
administrators, legal representatives, successors and assigns.
IN WITNESS WHEREOF, the parties have duly executed this Agreement, in two
counterparts, each of which shall be deemed an original, but which together
constitute one and the same instrument, effective as of the day and year first
shown above.
CLWK:
ClearWorks Technologies, Inc.
By: /s/ XXXXXXX X. XXXXXXX
Name: Xxxxxxx X. XxXxxxx
Title: CEO
HOA:
Canyon Gate at Northpointe Home Owner's Association
By:/s/ XXXXX XXXXXXXXX
*Name: Xxxxx Xxxxxxxxx
*Its Authorized Agent for Purposes
Of Executing This Specific Contract
With Full Authority to Bind the HOA and
Any Present and/or Future Homeowner(s)
In the Territory For The Full Term of This Agreement
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WE, THE UNDERSIGNED PARTIES, HEREBY AGREE TO SUBMIT TO BINDING ARBITRATION
ADMINISTERED BY THE AMERICAN ARBITRATION ASSOCIATION UNDER ITS COMMERCIAL
ARBITRATION RULES ANY DISPUTE THAT ARISES ON ACCOUNT OF OR IN CONNECTION TO THIS
AGREEMENT. WE FURTHER AGREE THAT ANY CONTROVERSY THAT ARISES FROM THIS AGREEMENT
SHALL BE SUBMITTED TO THREE ARBITRATORS--ONE ARBITRATOR CHOSEN BY HOA, ONE
ARBITRATOR CHOSEN BY CLWK AND THE THIRD ARBITRATOR INDEPENDENTLY CHOSEN BY THE
CLWK AND HOA ELECTED ARBITRATORS. WE FURTHER AGREE THAT WE WILL FAITHFULLY
OBSERVE THIS AGREEMENT TO ARBITRATE AND THE RULES THERETO, THAT WE WILL ABIDE BY
AND PERFORM ANY AWARD RENDERED BY THE ARBITRATORS AND THAT A JUDGMENT OF ANY
COURT HAVING JURISDICTION MAY BE ENTERED ON THE AWARD.
CLWK:
ClearWorks Technologies, Inc.
By: /s/ XXXXXXX X. XXXXXXX
Name: Xxxxxxx X. XxXxxxx
Title: CEO
Attorney for CLWK:
/s/ ILLEGIBLE, General Counsel
HOA:
Canyon Gate at Northpointe Home Owner's Association
By:/s/ XXXXX XXXXXXXXX
*Name: Xxxxx Xxxxxxxxx
*Its Authorized Agent for Purposes
Of Executing This Specific Contract
With Full Authority to Bind the HOA and
Any Present and/or Future Homeowner(s)
In the Territory For The Full Term of This Agreement
Attorney for the HOA:
-----------------------
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WAIVER OF CONSUMER RIGHTS
WE, THE UNDERSIGNED PARTIES, WAIVE OUR RIGHTS UNDER THE DECEPTIVE TRADE
PRACTICES-CONSUMER PROTECTION ACT, SECTION 17.41 ET SEQ., BUSINESS & COMMERCE
CODE, A LAW THAT GIVES CONSUMERS SPECIAL RIGHTS AND PROTECTIONS. AFTER
CONSULTATION WITH AN ATTORNEY OF OUR OWN SELECTION, WE VOLUNTARILY CONSENT TO
THIS WAIVER.
CLWK:
ClearWorks Technologies, Inc.
By: /s/ XXXXXXX X. XXXXXXX
Name: Xxxxxxx X. XxXxxxx
Title: CEO
Attorney for CLWK:
/s/ ILLEGIBLE, General Counsel
HOA:
Canyon Gate at Northpointe Home Owner's Association
By:/s/ XXXXX XXXXXXXXX
*Name: Xxxxx Xxxxxxxxx
*Its Authorized Agent for Purposes
Of Executing This Specific Contract
With Full Authority to Bind the HOA and
Any Present and/or Future Homeowner(s)
In the Territory For The Full Term of This Agreement
Attorney for the HOA:
-----------------------
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EXHIBIT "A"
ATTACHED TO AND MADE A PART OF THAT CERTAIN PRODUCT AND SERVICE AGREEMENT DATED
3/26/99 BY AND BETWEEN CLEARWORKS TECHNOLOGIES, INC. AND CANYON GATE AT
NORTHPOINTE HOME OWNER'S ASSOCIATION.
TERRITORY
1. Exclusive Territory:
Northpointe Subdivision developed by Land Tejas Development
Houston, Xxxxxx County, Texas
Legal Description:
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EXHIBIT "B"
ATTACHED TO AND MADE A PART OF THAT CERTAIN SERVICE AGREEMENT DATED 3/26/99
BY AND BETWEEN CLEARWORKS TECHNOLOGIES, INC. AND CANYON GATE AT NORTHPOINT HOME
OWNER'S ASSOCIATION.
SERVICES
1. The Program as covered by the Agreement shall mean all services provided to
consumers located in the Territory. Services shall be defined as Basic and
Enhanced services and shall not be limited to the following:
BASIC SERVICES
Basic Telephone Services
Basic Cable TV Services
High Speed Internet Connectivity
Community Intranet
ENHANCED SERVICES
Voice Mail
Enhanced Cable TV Services
On-Demand Video Rental
Long Distance Telephone
2. ClearWorks shall provide the Basic Level Services of the Program to the
subscribed Customers. ClearWorks shall invoice the individual CUSTOMERS on
behalf of the HOA for such services as provided in the Agreement.
3. ClearWorks shall provide the Enhanced Level Services of the Program to the
subscribed Customers directly to the Customer, and ClearWorks shall invoice
the Customer directly.
4. ClearWorks shall maintained the services provided under the Program at a
technological level commensurate with the industry standards for such Program
(i.e. bundled services) prevailing in the industry for the Houston
metropolitan and surrounding areas.
5. ClearWorks shall maintained the Program price at a competitive level
commensurate with the standards for such Program prevailing in the industry
for the Houston metropolitan and surrounding areas; provided however, that
the price for the services of the Program are in no event priced higher than
the retail prices of the respective elements of the Program (i.e. telephone
services, internet, cable, etc.) if such elements were purchased separately.
6. ClearWorks shall provide end user support in terms of end user services
selection and answer and support all end user questions. The performance of
ClearWorks' customer support shall
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be commensurate with the industry standards for such customer support
prevailing in the industry for the Houston metropolitan and surrounding
areas.
7. ClearWorks shall maintain all field equipment and support personnel in
connection to the Program, including all support of all cable, electronics
and satellite dishes.
8. ClearWorks shall provide all infrastructure cabling within the Territory
necessary to deliver the Program.
9. ClearWorks shall provide all Head End electronics, including the necessary
number of satellite dishes as determined by ClearWorks.
10.ClearWorks will provide backup power to ensure consistent systems operation
in the event of a power outage.
11.ClearWorks will pay the monthly electricity xxxx incurred by ClearWorks as a
result of the head end building.
12.ClearWorks shall be responsible for insuring the contents of the head end
facility pursuant to the following coverages and limits:
Comprehensive General Liability $1,000,000 combined single including broad
form contractual, each occurrence for bodily broad form property damage,
xcu injury and property damage. hazards, completed operations, and product
liability.
13. ClearWorks shall be responsible for preparing individual customer invoices
for all levels of service of the Program and mailing such invoices to Customer.
14. HOA shall not be responsible for repairing, replacing, upgrading or
maintaining any equipment or software in connection to the Program; such shall
be the responsibility of ClearWorks.
*Unless otherwise defined herein, the term "industry standards" shall mean those
standards prevailing in the industry as applied to suppliers of cable T.V.,
telephone services, and internet services to the general public within the
Houston metropolitan and surrounding area.
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CONFIDENTIAL--HOA AND CLEARWORKS TECHNOLOGIES, INC. SERVICE AGREEMENT -
COPYRIGHT (C)CLEARWORKS TECHNOLOGIES, INC.
EXHIBIT "C"
ATTACHED TO AND MADE A PART OF THAT CERTAIN SERVICE AGREEMENT DATED 3/26/99
BY AND BETWEEN CLEARWORKS TECHNOLOGIES, INC. AND CANYON GATE AT NORTHPOINTE HOME
OWNER'S ASSOCIATION.
HOA'S DUTIES AND RESPONSIBILITIES
1. ClearWorks shall provide all sales literature and subscription agreements to
HOA for marketing the Program and ClearWorks shall be solely responsible for
the contents thereof. Any contract provision for a term or containing a
cancellation penalty or automatic renewal clause shall be conspicuously
highlighted in the sales literature and subscription agreement.
2. ClearWorks shall provide each new homeowners three (3) months services free
of charge upon the purchase of any new residence. The homeowners, to obtain
the services, will be directed to the HOA to register for the three (3) month
free service. At said time, HOA agrees to provide each new homeowner with the
sales literature and subscription agreement to be provided by ClearWorks.
3. The HOA shall be responsible for subscribing Customers to the Basic Level
Services of the Program. The HOA shall handle all logistics and be
responsible for all costs and expenses in connection with obtaining Customer
subscriptions and subscription renewals.
4. In the event of a resale of a home, HOA agrees to include literature
regarding services provided under the Program and a letter informing the new
home owner that all connection fees will be waived upon execution of a
subscription agreement for services under the Program.
5. The HOA shall be responsible for collecting payment from Customers who
subscribe to the Basic Level Services Program. The HOA shall be further
responsible for forwarding payment for the Basic Level Services of the
Program to ClearWorks on a timely basis as described in this Agreement. Time
is of the essence.
6. The HOA shall be responsible for maintaining the landscaping of all
buildings. The HOA will not charge ClearWorks for the use of the building
that houses the equipment of the Program (i.e. the head end building).
7. The head end building shall only be used to service the Territory described
in Exhibit A.
8. At no cost to ClearWorks, HOA shall be responsible for granting permanent
access to easements throughout Territory for ClearWorks' cable installation
and other services arising out of or in connection to the Program and this
Agreement.
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CONFIDENTIAL--HOA AND CLEARWORKS TECHNOLOGIES, INC. SERVICE AGREEMENT -
COPYRIGHT (C)CLEARWORKS TECHNOLOGIES, INC.
EXHIBIT "D"
ATTACHED TO AND MADE A PART OF THAT CERTAIN SERVICE AGREEMENT DATED 3/26/99
BY AND BETWEEN CLEARWORKS TECHNOLOGIES, INC. AND CANYON GATE AT NORTHPOINTE HOME
OWNER'S ASSOCIATION.
BASIC LEVEL SERVICE PRICING
---------------------------
SERVICE PRICE (MONTHLY)
------- ---------------
Basic Local Telephone Service
Basic Cable TV
Internet Connectivity (10MB or
higher)
TOTAL* ..................................................... $78.14
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CONFIDENTIAL--HOA AND CLEARWORKS TECHNOLOGIES, INC. SERVICE AGREEMENT -
COPYRIGHT (C)CLEARWORKS TECHNOLOGIES, INC.
EXHIBIT "E"
ATTACHED TO AND MADE A PART OF THAT CERTAIN SERVICE AGREEMENT DATED 3/26/99
BY AND BETWEEN CLEARWORKS TECHNOLOGIES, INC. AND CANYON GATE AT NORTHPOINT HOME
OWNER'S ASSOCIATION.
SERVICE DETAILS
---------------
SAVINGS MATRIX
SERVICE HOA COST
------- --------
Basic Telephone Service.............................
Basic Cable TV Service..............................
Internet Connectivity*..............................
Community Intranet ................................. N/A
TOTAL .............................................. $ 78.14
* COMPARED USING ISDN SERVICE AND RATES
BASIC LOCAL TELEPHONE SERVICE
Basic Local Telephone Service is defined as the Public Utilities Commission of
Texas standard dialtone line delivered to the consumer with touch tone dialing
service and without any extended calling features. It is designed to support
existing analog telephones which homeowners may have supporting RJ-11C tip &
ring 2-wire phone lines. All extended calling features shall be priced
comparable to those features within the industry in the Houston metropolitan and
surrounding area.
BASIC CABLE TV
CHANNEL ID CHANNEL ID
------- ---------------- ------- ----------------
2 KPRC - NBC 35 EWTN
3 Reserved 36 Family Channel
4 Reserved 37 HGTV
5 CG - Guard Gate 38 History Channel
6 CG - Pool 39 KHTV-Ind
7 Spare 40 HSN
8 KUHT -PBS 41 Learning Channel
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CONFIDENTIAL--COMPANY AND CLEARWORKS TECHNOLOGIES, INC. SERVICE AGREEMENT -
COPYRIGHT (C)CLEARWORKS TECHNOLOGIES, INC.
9 TISD 42 Lifetime
10 TISD 43 MTV
11 KHOU-CBS 44 VH1
12 Spare 45 KXLN-IND
13 KRTK-ABC 46 Nashville Net
14 KRTK-ABC (HDTV) 47 Nickelodeon
15 A&E 48 KTMD-FOR
16 America's Voice 49 KTFH-IND
17 Angel One 50 QVC
18 Cartoon Net 51 KNWS
19 CNBC 52 SCI-FI
20 KTXH-IND 53 TBS
21 CNN 54 TNT
22 Headline News 55 Travel Channel
23 Comedy Central 56 Trinity
24 Country Music 57 KVVV-IND
25 Court TV 58 TV Land
26 KHIV-FOX 59 TV-FOOD
27 CSPAN 60 USA
28 CSPAN2 61 Weather Channel
29 Discovery 62 Spare
30 Disney 2 63 Spare
31 E! 64 Spare
32 XXXX 00 Xxxxx
33 ESPN2 66 Spare
34 ESPNews 67-79 Spare
* ClearWorks Reserves the right to change the Basic Cable TV channel lineup
shown and described herein for any reason without prior notice; provided
however, that the quantity and quality of the channel lineup is not materially
diminished from the original channel lineup.
INTERNET CONNECTIVITY (10MB OR HIGHER)
Dedicated Internet connectivity will be delivered via a shared Ethernet 10MB/s
connection into the home. This connection will plug into the IBM Network
Connection Center for distribution throughout the home. Each home will be
assigned one (1) E-Mail address associated with their connection. The Internet
connectivity shall be maintained to support a minimum of 20% user access at any
given time. In addition, the internet connection provided under the Program
shall be maintained in conformity with the industry standards.
21
CONFIDENTIAL--HOA AND CLEARWORKS TECHNOLOGIES, INC. SERVICE AGREEMENT -
COPYRIGHT (C)CLEARWORKS TECHNOLOGIES, INC.
EXHIBIT "F"
ATTACHED TO AND MADE A PART OF THAT CERTAIN PRODUCT AND SERVICE AGREEMENT DATED
3/26/99 BY AND CLEARWORKS TECHNOLOGIES, INC. AND CANYON GATE AT NORHPOINTE HOME
OWNER'S ASSOCIATION.
REBATE
------
HOA is entitled to deduct Two Dollars ($2.00) from each CUSTOMER'S invoice for
Basic Services provided under the program prior to forwarding the monies to
ClearWorks. This Rebate shall be adjusted annually for inflation pursuant to the
U.S. Consumer Price Index as issued by the Bureau of Labor Statistics by
executing a new Exhibit "F".
HOA SHALL BE PAID THEIR RESPECTIVE REBATE ONLY AFTER CLWK HAS RECEIVED FULL
PAYMENTS FOR SERVICES OF PROGRAM IN IMMEDIATE AVAILABLE GOOD FUNDS.
CLWK:
ClearWorks Technologies, Inc.
By: /s/ XXXXXXX X. XXXXXXX
Name: Xxxxxxx X. XxXxxxx
Title: CEO
HOA:
Canyon Gate at Northpointe Home Owner's Association
By:/s/ XXXXX XXXXXXXXX
*Name: Xxxxx Xxxxxxxxx
*Its Authorized Agent for Purposes
Of Executing This Specific Contract
With Full Authority to Bind the HOA and
Any Present and/or Future Homeowner(s)
In the Territory For The Full Term of This Agreement
22
CONFIDENTIAL--HOA AND CLEARWORKS TECHNOLOGIES, INC. SERVICE AGREEMENT -
COPYRIGHT (C)CLEARWORKS TECHNOLOGIES, INC.
