Exhibit 10.15
CUSTOMER AGREEMENT
FOR
WHOLESALE AND VIRTUAL ISP INTEGRATED SOLUTIONS DIAL-UP
INTERNET ACCESS SERVICES
This AGREEMENT (the "Agreement") is made and entered into as of the date of
signature of the last party sign (the "Effective Date"), by and between Cable &
Wireless USA, Inc., a District of Columbia corporation with its principal place
of business at 0000 Xxxxxxxx Xxxx, Xxxxxx, Xxxxxxxx, 00000 ("C&W USA") and
FreeiNetworks, Inc. a Washington corporation with offices at 000 X. 00 X Xxxxxx
Xxxxxxx Xxx, XX 00000 ("Customer") (each being referred to individually as a
"Party" and together as the "Parties").
Whereas, C&W USA provides certain Internet services including Internet access,
transport, interconnection, web hosting, support, and other related services;
WHEREAS, Customer desires to purchase from C&W USA and to offer or resell to
subscribers and other end users ("End Users") certain of C&W USA's Internet
services ("Service") as defined herein, for which Customer will act as the
Internet Service Provider ("ISP") to End Users in accordance with the terms set
out herein;
NOW THEREFORE, in consideration of the mutual promises set forth below, the
Parties hereby agree as follows:
1. DEFINITIONS:
(a) "Customer", as used herein, means a sole proprietorship, partnership,
corporation, or other legal entity that incurs usage charges for the Service (as
defined herein) for its own use or who pays or bears the primary obligation to
pay such charges on behalf of one or more End Users contracting with Customer
for the Services as resold by the Customer, in Customer's capacity s an Internet
Service Provider ("ISP").
(b) "End User", as used herein, means a user to whom the Service is made
available by Customer and may include an individual, a corporation, or a legal
entity who incurs usage charges to the Customer for the Service.
(c) "C&W USA", as used herein, means Cable & Wireless USA Inc.
[*] Confidential Treatment Requested
(d) "Service", as used herein, means the Internet services provided by C&W USA
to Customer as set forth in Exhibit B attached hereto.
2. SERVICE:
2.1 C&W USA INTERNET SERVICES:
C&W USA will provide to Customer for resale or reprovisioning to End Users
analog or digital access to the Internet as follows and as described in Exhibit
B, according to Customer's agreed pricing and service level.
a. TRAFFIC HANDLING. . C&W USA will provide Internet transport of IP
packets, including store and forward, routing, and recovery, to Customer
and its End Users using the same equipment, error handling, redundancy,
routing efficiencies, and otherwise in the same manner as C&W USA handles
C&W USA's customers Internet traffic, except as otherwise provided herein.
b. TRAFFIC DELIVERY. C&W USA will deliver Customer's Internet traffic
transiting C&W USA's Internet facilities ("C&W USA Network") based on
Internet Protocol (IP) addressing. C&W USA IS NOT RESPONSIBLE FOR
TRANSMISSION OF CUSTOMER TRAFFIC BEYOND C&W USA NETWORK.
c. SERVICE LIMITATIONS. Customer hereby acknowledges that the Services
are subject to certain conditions generally beyond the control of C&W USA,
including the type and condition of the equipment (personal computer,
modem, etc.) of Customer and/or End Users. The Service may be temporarily
unavailable or limited because of capacity limitations and may be
temporarily interrupted or curtailed due to equipment modifications,
upgrades, relocations, repairs, and similar activities necessary for the
proper operation of the Service.
2.2 CUSTOMER RESPONSIBILITIES.
2.2.1 GENERAL OBLIGATIONS. Customer hereby agrees to: (I) Notify C&W
USA within 24 hours of any changes in account status for any End
User, including addition of a new End User and termination of an
End User account if and only if Customer is purchasing Virtual
ISP Integrated Dial-up Internet Access Services; (ii) Remit to
C&W USA all payments within thirty (30) days of the date of
invoices for Service provided by C&W USA according to the terms
set forth herein and in Exhibit B hereto; (iii) Provide notice of
any disputed item contained in an invoice received from C&W USA
for prompt resolution; (iv) Notify C&W USA promptly of any
perceived degradation in the Service and cooperate with C&W USA
to thee fullest possible in order to determine the cause of and
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resolve any such degradation; (v) Comply fully with all
applicable federal, state, and local laws, regulations, and
ordinances relating to the Service to be provided hereunder and
the resale of the Service to the End Users, and (vi) Otherwise
comply with the terms and conditions as set forth herein.
2.2.2 CUSTOMER REPRESENTATIVE. Customer will provide a single point of
contact for administrating of this Agreement. Customer shall
cooperate with C&W USA in the performance and delivery of the
Service hereunder.
2.2.3 CUSTOMER EQUIPMENT. Customer shall be responsible to provide for
the proper installation, operation, and maintenance of Customer's
equipment used in connection with the Service, and Customer shall
ensure that such equipment is technically and operationally
compatible with the Service and in compliance with applicable
Federal Communications Commission rules and regulations.
2.2.4 END USER TERMS AND CONDITIONS. Customer warrants that it will
require each End User to agree in writing to comply with and
Customer shall cause each End User to so comply with terms
substantially similar to the terms and conditions identified in
Exhibit C attached hereto.
2.2.5 ACCEPTABLE USAGE OF DIAL-UP ACCOUNTS: Customer will let End
Users use dial-up accounts solely on an active "dial-up" basis,
and in no way on a standby or inactive basis in order to maintain
a connection. A dial-up account may be used for World Wide Web
browsing, reading or posting to Usenet (see Section 11 below)
newsgroups, sending, receiving and reading electronic mail and
transferring files via the file transfer protocol. Automated
processes may not be used such as checking e-mail or pinging the
host to maintain a constant connection. Without limitation of the
foregoing, Customer and End Users shall abide by the provisions
regarding usage set forth in Section 11 of this Agreement and in
Exhibits B and C attached hereto.
3. PRICE:
Customer shall pay to C&W USA the charges associated with the rate plan
selected in accordance with Exhibit A attached hereto, including, but not
limited to, applicable taxes and toll-free number charges. If service access is
not provided via a local telephone number, Customer will also be responsible for
toll or other charges.
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Notwithstanding anything to the contrary herein, C&W USA may upon advance
written notice adjust its rates or charges or impose additional rates and
charges in order to recover amounts it may be required by governmental or
quasi-governmental authorities to collect from or pay to others to support
statutory or regulatory programs during the term of this Agreement (e.g., the
"Universal Service Fund").
4. PAYMENT:
C&W USA shall xxxx Customer as described herein for all applicable
charges on a monthly basis. Amounts not paid within 30 days after the date of
the invoice are past due. A 1-1/2% per month late fee shall be assessed to
Customer on all past due amounts . Prices do not include applicable taxes, for
which Customer is responsible. At C&W USA's request, Customer shall post a bond
in a form and amount acceptable to C&W USA, or provide a security deposit to
assure payment.
5. TERM AND TERMINATION:
This Agreement becomes effective as of its Effective Date and shall
remain in effect for the period indicated in Exhibit A attached hereto or until
terminated as provided herein. This Agreement shall continue in effect for
successive consecutive additional terms as provided in Exhibit A following the
initial Term until either Party gives the other party notice of termination at
least thirty (30) days prior to the expiration of the then-current term. In the
event Customer terminates this Agreement, then without limitation to any other
remedy C&W USA may have, Customer will pay to C&W USA upon discontinuance of the
Service the termination charge set forth on Exhibit A.
6. END USER COMPLIANCE ASSURANCE
C&W USA reserves the right to review, either randomly or periodically
or any combination thereof, End User-provide Content, including webpages, to
confirm End User compliance with the terms of this Agreement using reasonable
commercial and technical means available, in C&W USA's sole discretion.
7. ACCESS:
Service access will be provided via a local telephone number where
coverage is available. C&W USA is not responsible for any toll or other fee or
charge. The Service may be remotely accessed via a toll-free number at an
additional charge to be agreed upon by the parties.
8. CREDIT:
There shall be no credits, reductions, or setoff against the charges
for Service for downtime or interruption of Service unless such Service
interruption exceeds 24 consecutive hours in duration. C&W USA shall provide
Customer with a credit equal to
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1/30 of the recurring monthly charge for Service for each twenty-four hour
period from the tie of notice of interruption until Service restoration,
provided Customer notifies C&W USA of the Service interruptions. No adjustments
shall be made by accumulating periods of non-continuous interruption . A credit
allowance will not be given for mistakes, omissions, interruptions, delays,
errors, defects or curtailments in the Service caused by the negligence or
willful act of Customer or others, or mistakes, omissions, interruptions,
delays, errors or defects caused by failure of equipment or of Service as
described in Section 2.
9. LIMITATION OF LIABILITY
9.1 SERVICE. C&W USA SHALL NOT BE LIABLE FOR OMISSIONS,
INTERRUPTIONS, DELAYS, ERRORS, DEFECTS OR CURTAILMENTS IN THE
SERVICE INTERRUPTIONS CAUSED BY FAILURE OF EQUIPMENT OR SERVICES
NOT PROVIDED BY C&W USA, FAILURE OF COMMUNICATIONS, POWER
OUTAGES, OR OTHER INTERRUPTION NOT WITHIN THE COMPLETE CONTROL OF
C&W USA, NOR SHALL C&W USA BE LIABLE FOR PERFORMANCE DEFICIENCIES
CAUSED OR CREATED BY CUSTOMER'S OR END USERS' EQUIPMENT.
9.2 CONTENT. C&W USA SHALL HAVE NO LIABILITY TO CUSTOMER, END USERS,
OR OTHER THIRD PARTIES WITH RESPECT TO ITS OBLIGATIONS UNDER THIS
AGREEMENT OR OTHERWISE FOR CONSEQUENTIAL, EXEMPLARY, SPECIAL,
INCIDENTAL, INDIRECT OR PUNITIVE DAMAGES ARISING OUT OF ANY
CONTENT TRANSMITTED UNDER THE TERMS OF THIS AGREEMENT. CUSTOMER
HEREBY RELEASES C&W USA FROM LIABILITY ARISING FROM ANY CONTENT
ACCESSED VIA THE SERVICE.
9.3 FORCE MAJEURE: C&W USA's performance under this Agreement shall
be excused in case of labor difficulties, governmental orders,
civil commotions, acts of god, or other conditions or
circumstances beyond its reasonable control.
9.4 EQUIPMENT: C&W USA shall not be liable if changes in operation,
procedures, or services require modification or alteration of
Customer's or End User's equipment, render the same obsolete or
otherwise affect its performance.
9.5 IN NO EVENT SHALL C&W USA BE LIABLE FOR ANY INCIDENTAL, SPECIAL,
CONSEQUENTIAL, OR PUNITIVE DAMAGES INCLUDING BUT NOT LIMITED TO
LOSS OF PROFITS, LOSS OF BUSINESS OR BUSINESS OPPORTUNITY, LOSS
OF USE,
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ETC. THE LIABILITY OF C&W USA FOR ACTUAL PROVEN DAMAGES FOR ANY
CAUSE WHATSOEVER, INCLUDING BUT NOT LIMITED TO ANY FAILURE OF OR
DISRUPTION OF SERVICES, REGARDLESS OF THE FORM OF ACTION, WHETHER
IN CONTRACT OR IN TORT OR OTHERWISE, INCLUDING NEGLIGENCE, SHALL
BE LIMITED TO AN AMOUNT EQUIVALENT TO CHARGES PAYABLE BY CUSTOMER
UNDER THIS AGREEMENT FOR THE SERVICE DURING THE PERIOD SUCH
DAMAGES OCCUR.
9.6 NO WARRANTIES. EXCEPT AS SET FORTH IN THIS AGREEMENT, C&W USA
MAKES NO WARRANTIES OR REPRESENTATIONS, EITHER EXPRESS OR
IMPLIED, CONCERNING THE SERVICE, AND EXPRESSLY DISCLAIMS
WARRANTIES OF FITNESS FOR A PARTICULAR USE OR PURPOSE, THE
WARRANTY OF MERCHANTABILITY AND ANY OTHER WARRANTY IMPLIED BY
LAW.
9.7 CONTENT, ACCURACY OF INFORMATION: C&W USA and its affiliates,
along with any parties from whom C&W USA obtains network
services, exercise no control whatsoever over the content of the
information passing through C&W USA's network. C&W USA makes no
warranties of any kind, whether express or implied, for the
content of the information passing through its network. Use of an
information obtained via the C&W USA network is at Customer's and
its End Users' own risk or the risk of their affiliates. C&W USA
specifically denies any responsibility for the accuracy or
quality of information obtained through its Service.
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9.8 OFFENSIVE AND/OR HARMFUL INFORMATION: The Internet hosts some
material deemed unfit for viewing and reading by minors under the
age of 18. Some sites contain information both in text and
graphical formats that Customer and/or End Users may consider
obscene and/or harmful. Customer and/or End Users agree to not
hold C&W USA responsible for sites and postings that could be
considered obscene, lewd, offensive, and/or harmful. Customers
are responsible for their own monitoring and viewing habits and
their End Users, including minors. C&W USA does not block, filter
or screen postings or sites on the Internet in whole or in part.
10. INDEMNIFICATION
10.1 GENERAL. Customer shall protect, indemnify, and hold harmless C&W
USA and its officers, directors, employees, agents and third
party suppliers along with any parties from whom C&W USA obtains
network services from and against any loss, cost, claim,
liability, damage, or expense (including reasonable attorneys'
fees) to third parties, relating to or arising from: (i) the use
of the Service by Customer, End User, or any of their personnel,
whether or not Customer or End User has knowledge of or has
authorized such access or use, including, without limitation,
claims for libel, slander, invasion of privacy, infringement of
copyright, patent infringement (where Customer or End User has
used, connected, or combined the Service with the products or
services of others), negligence, or tortuous behavior, (ii)
Content including, without limitation, any claims arising out of
Content, that damage another party or that violate t he law
and/or (iii) arising out of injury or death to persons, damage to
property, Customer's breach of any of the terms of this
Agreement, or customer's misrepresentation, fraud, or negligence
with respect to any End User. Customer acknowledges and agrees
that C&W USA shall have no obligation to Customer, End User, or
any member of Customer's organization other than as expressly set
forth in this Agreement.
10.2 CUSTOMER INTELLECTUAL PROPERTY. Customer represents an warrants
that it or End User owns or has a license to use all copyrights,
licenses, trademarks, service marks, patents, and intellectual
property rights for all elements of its content transmitted or
made available over the Internet through the use of the Service,
and that there is no geographic restriction on Customer or End
User use of any of these intellectual property elements. Customer
specifically grants C&W USA the worldwide right to transmit,
download, copy or cache all such intellectual property elements
necessary for C&W USA to provide the Service. Customer agrees to
defend and/or handle at its own expense any claim or action
against C&W USA or any of its affiliated entities for actual or
alleged infringement of any US or International intellectual or
industrial
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property right, including, without imitation, trademarks, service
marks, patents, copyrights, misappropriation of trade secrets or
any similar proprietary rights arising out of Customer's or End
User's Content or particular use of he Service.
10.3 C&W USA INTELLECTUAL PROPERTY. C&W USA shall, at its own expense,
defend any suit or claim instituted against Customer and
indemnify Customer against any award of damages and costs entered
against Customer by a final judgment of a court of competent
jurisdiction in any such suit insofar as the same is based on a
claim that the C&W USA-furnished equipment and/or the C&W USA
services constitute an infringement of any United States patent,
copyright, trademark or similar proprietary right of a third
party; provided that Customer gives C&W USA prompt written notice
of the institution of such suit or the assertion of such claim
and permits C&W USA to defend the same and gives C&W USA all
reasonably available information and assistance and authority to
enable C&W USA to do so. C&W USA shall have control of the
defense of any such suit, including appeals and all negotiations
thereof, including the right to effect settlement or compromise.
At any time during the course of any such litigation, or if in
C&W USA's opinion the C&W USA-furnished equipment and/or the C&W
USA services are likely to become the subject of such a clam or
suit, C&W USA shall have the following options: (i) procure for
Customer, at C&W USA's expense, the right to continue using the
C&W USA-furnished equipment and/or the C&W USA services; (ii)
replace or modify the C&W USA-furnished equipment and/or the C&W
USA services, at C&W USA's expense, so that it become
non-infringing; (iii) grant to Customer an interruption credit,
as described elsewhere in this Agreement, for the period during
which the C&W USA-furnished equipment and/or the C&W USA services
are unavailable to Customer; (iv) discontinue providing and
release Customer from any further obligations for the C&W
USA-furnished equipment and/or the C&W USA services. C&W USA
shall have no liability to Customer if the infringement is based
upon the use of the C&W USA-furnished equipment or the C&W USA
services with any service, equipment or software not made or
furnished by C&W USA. The foregoing states the entire liability
of C&W USA with respect to infringement of patents, copyrights,
trademarks or similar proprietary rights of a third party by the
C&W USA-furnished equipment and/or the C&W USA services and any
resulting unavailability of such services and/or equipment.
11. USE OF SERVICE:
11.1 ACCEPTABLE USE POLICY: Customer agrees to abide and cause End
Users to abide by the terms of C&W USA Internet Acceptable Use
Policy, which is set forth at
XXXX://XXX.XXXXX.XXX/XXXXXXXX_XXX.XXX.
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11.2 EXPORT COMPLIANCE. Customer further agrees to comply and cause
End Users to comply with U.S. export laws concerning the
transmission of technical data and other regulated materials via
the Services.
12. DEFAULT
12.1 In the event Customer fails to comply with any term of this
Agreement, including, without limitation, failure to make timely
payment of any amount due C&W USA or failure to comply with the
restrictions on use of Service set forth in Section 11, Customer
shall be in Default ("Default") of this Agreement. In the event
of a non-payment Default, C&W USA shall provide notification to
Customer of default ("Notice of Default"). Except for a payment
Default or a Default involving a violation of C&W USA's
Acceptable Use Policy, C&W USA shall continue to provide Service
to Customer, for a period of 90 days commencing with Notice of
Default to Customer. Except as otherwise provided in this
Section, Customer shall be afforded the opportunity to cure the
Default or to migrate its End Users to another Internet service
other than that provided by C&W USA during this 90-day period. If
at the end of the 90-day period Customer has not cured the
Default to the satisfaction of C&W USA, C&W USA shall in its sole
discretion, and without limiting its remedies or incurring any
liability to Customer, either temporarily discontinue or
permanently terminate the furnishing of Service to Customer in
whole or in part.
12.2 DEFAULT AFFECTING C&W USA SERVICE OR NETWORK INTEGRITY. Where
Customer's or End User's equipment is used with Service provided
by C&W USA in violation of any of the provisions herein, C&W USA
will notify Customer and take such action as is necessary for the
protection of the Service for use b its other customers. Where
Customer or an End User engages in a violation of the C&W USA's
Acceptable Use Policy, Customer shall correct the violation
immediately and shall confirm in writing to C&W USA within 72
hours that such use has ceased or that the violation has been
corrected. If Customer fails to correct, C&W USA will disconnect
Customer's Service, without any credit allowance, until such time
as Customer compliance with the provisions hereof. C&W USA
reserves the right to charge a reconnect fee for any discontinued
Service that is subsequently reconnected. C&W USA RESERVES THE
RIGHT TO TEMPORARILY SUSPEND OR BLOCK SERVICE TO CUSTOMER OR ANY
OF ITS END USERS OR TAKE ANY OTHER STEPS THAT C&W USA DEEMS
NECESSARY TO PREVENT HARM TO C&W USA AND ITS CUSTOMERS TO
OTHERWISE PROTECT THE INTEGRITY OF THE C&W USA NETWORK OR AS
REQUIRED BY APPLICABLE LAW OR COURT ORDER.
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13. GOVERNING LAW AND FORUM SELECTION
This Agreement shall be governed by, construed under, and enforced in
accordance with, the laws of the Commonwealth of Virginia, exclusive of its
conflict of laws rules. Any legal action of whatever nature by or against the
Parties arising out of or related in any respect to the Agreement shall be
brought solely in either the United States District Court for the Eastern
District of Virginia or the appropriate court of the Commonwealth of Virginia
located in the jurisdiction where C&W USA has its principal place of business.
Customer hereby consents to (and waives any challenge or objection to) personal
jurisdiction in Virginia, and consent to legal process by mail in accordance
with the provisions of Code of Virginia Annotated and the Virginia rules of
procedure.
14. MISCELLANEOUS
In the event of a conflict between this Agreement and any applicable
tariff, the tariff shall prevail. If any provision of this Agreement shall be
held to be invalid or unenforceable, the validity and enforceability of the
remaining provisions of this Agreement shall not be affected thereby. This
Agreement embodies the entire agreement between the parties with respect to the
subject matter hereof and supersedes all prior agreements and understandings,
whether written or oral, and all contemporaneous oral agreements and
understandings relating to the subject matter hereof. Neither Party shall issue
a news release, public announcement, advertisement, or other form of publicity
concerning the existence or the terms of this Agreement without obtaining prior
written approval from the other Party. This Agreement is subject to modification
by any authorized regulatory agency. C&W USA reserves the right to withhold
certain End User information in compliance with foreign privacy laws. Customer
may not assign this Agreement without C&W USA's prior written consent. This
Agreement shall b binding on the parities hereto and their respective personal
and legal representatives, successors, and permitted assigns.
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IN WITNESS WHEREOF, C&W USA and FREEI NETWORKS, Incorporated have caused this
Agreement to be executed by their duly authorized representatives as of the date
first written above.
Customer Cable & Wireless USA, Inc.
FREEI NETWORKS, INC.
----------------------------------
BY: /S/XXXXXX (BOB) XXXXXXXXXX by: /S/XXXX CORNER
------------------------------- --------------------
Name: XXXXXX ((BOB) XXXXXXXXXX Name: XXXX CORNER
---------------------------- ---------------------
Title: PRESIDENT/CEO Title: SVP, RETAIL SALES
---------------------------- ---------------------
Date: 12.23.99 Date: 2/3/00
--------------------------- ----------------------
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CABLE & WIRELESS
USA
ADDENDUM TO CUSTOMER AGREEMENT
FOR WHOLESALE AND VIRTUAL ISP INTEGRATED SOLUTIONS
DIAL-UP INTERNET ACCESS SERVICES
This Addendum ("Addendum") to the Customer Agreement for Wholesale and Virtual
ISP Integrated Solutions Dial-Up Internet Access Services ("Agreement") is
entered into by and between Cable & Wireless USA, Inc. ("C&W USA") and FREEi
NETWORKS, INC. ("Customer"). This Addendum only modifies the Agreement to the
extent specifically set forth below. Any capitalized terms not specifically
defined in the Addendum shall have the same meaning as defined in the Agreement.
This Addendum shall be effective on the date of the last party to sign below.
The following changes are made to the Agreement:
1. SERVICE LIMITATIONS. Add the following at the end of Section 2.1.(c),
Service Limitations:
"C&W USA shall normally provide notice to Customer at least seventy-two
(72) hours prior to performing any preventive maintenance that adversely
affects Customer's use of the Service . Preventive maintenance is normally
performed by C&W USA starting at 2:00 a.m. (local time/any day of the week)
and all other networkwide maintenance and networkwide
upgrades/optimizations are normally performed by C&W USA starting at 2:00
a.m. (Eastern Time/any day of the week)."
2. CUSTOMER REPRESENTATIVE. In the second sentence of Section 2.2.2., CUSTOMER
REPRESENTATIVE, delete "hereunder" and replace it with "under this
Agreement".
3. DEPOSIT REQUIREMENTS. Add the following at the end of Section 4, Payment:
"Customer shall pay an initial deposit amount to C&W USA of $[*]
("Security Deposit Amount") to be received by C&W USA within two (2)
business days of receipt of notice from C&W USA of such requirement.
Thereafter, C&W USA reserves the right, at any time, to require the
Customer to pay additional funds. If C&W USA requires Customer to pay any
additional deposit amounts in accordance with the preceding sentence,
Customer shall make such a payment within two (2) business days after
receipt of notice from C&W USA of such requirement. Upon the termination of
the Agreement, C&W USA shall refund the then current Security Deposit
Amount held by C&W USA plus accrued interest at the applicable rate set by
regulation of the state in which C&W USA invoices Customer (except if
Customer is in breach of the Agreement), less any outstanding amounts then
owed to C&W USA by Customer under the Agreement.
Starting with the second (2nd ) Monthly Billing Period after C&W USA first
makes available the Service for registration by Customer's End User's, C&W
USA shall start crediting the $[*] Security Deposit Amount to
Customer's account under this Agreement in increments of $[*] each
Monthly Billing Period (defined below); provided that, Customer promptly
pays all invoice amounts (which are not subject to a bona fide dispute) in
accordance with the payment terms of Section 4, Payment, of the Agreement."
4. TERM AND TERMINATION. Delete Section 5, Term and Termination, and replace
it with the following:
"5. TERM AND TERMINATION
The initial Term of this Agreement shall become effective as of its
effective Date and shall remain in effect for the period indicated in
Exhibit A attached hereto or until terminated by either Party by providing
written notice to the other Party at least thirty (30) days prior to the
end of the initial Term. After the initial Term, this Agreement shall
continue in effect on a month-to-month basis until either party provides
the other Party written notice of termination at least thirty (30) days in
advance. In the event Customer terminates this Agreement prior to the end
of the initial Term or during a month-to-month period in the manner set
forth above, then without limitation to any other remedy C&W USA may have,
Customer will pay to C&W USA upon discontinuance of the Service the
termination charge set forth on Exhibit A.
Within ninety (90) days of the Effective Date of this Agreement ("90-Day
Period"), C&W USA shall provide a web interface which enables Customer to
disconnect all End Users at any point during any session established by
Customer's authentication. This interface may accept as input either (i) a
radius session id and NAS IP address, or (ii) an account name; but must
accept at least one. The disconnect must be completed within thirty (30)
seconds of sending the HTTP response header. In the event C&W USA is unable
to provide the web interface referenced herein within the 90-Day Period,
Customer may, by providing prior
Page 1 of 3
written notice to C&W USA, terminate this Agreement without incurring any
liability or termination charges, except for fees for Services utilized by
Customer through the effective date of such termination.
5. CREDIT. In the first sentence of Section 8, Credit, delete "24 consecutive
hours in duration" and replace it with "8 consecutive hours in duration".
6. FORCE MAJEURE. Delete section 9.3., Force Majeure, and replace it with the
following:
"9.3. FORCE MAJEURE. Except for Customer's obligation to pay C&W USA for
the Services, each party shall be excused from its performance under
this Agreement in case of labor difficulties, governmental orders,
civil commotions, acts of God, or other conditions or circumstances
beyond its reasonable control. Notwithstanding the above, if C&W USA
experiences a force majeure event ("Force Majeure Event") that affects
its ability to provide the Services to Customer under this Agreement
such that Customer cannot meet its Minimum Monthly Port Commitment
(defined in Exhibit A), the Customer shall not be obligated to meet
the Minimum Monthly Port Commitment applicable to the period during
which the Force Majeure Event occurs and continuing until such time as
the Services are restored by C&W USA.
7. EQUIPMENT. Add the following at the end of Section 9.4., Equipment:
"C&W USA shall make reasonable efforts to provide a reasonable prior notice
to Customer for material changes that C&W USA believes may require
modification and alteration of Customer's or End User's equipment or render
the same obsolete or otherwise affect its performance."
8. ACCEPTABLE USE POLICY. Delete Section 1.1.1., ACCEPTABLE USE POLICY, and
replace it with the following:
"11.1 ACCEPTABLE USE POLICY. Customer agrees to abide by, and to use its
best efforts to require End Users to abide by, the terms of C&W USA
Internet Acceptable Use Policy, which is set forth at
XXXX://XXX.XXXXX.XXX/XXXXXXXX_XXX.XXX. C&W USA shall provide a
forty-eight (48) hour advance notice to Customer prior to any
termination suspension of the Service due to a violation of C&W USA's
Acceptable Use Policy. Notwithstanding the preceding, C&W USA may
immediately terminate or suspend the Service to prevent damage to or
degradation of its internet network integrity which may be caused by
the Customer, End Users or anyone using Customer's access, or to
comply with any law, regulation, court order, or other governmental
request or order which requires immediately action."
9. GOVERNING LAW AND FORUM SELECTION. Delete the second and third sentences of
Section 13, Governing Law and Forum Selection, and replace it with the
following:
"Any legal action of whatever nature by or against the Parties arising out
of or related in any respect to the Agreement shall be brought either in
the courts of the Commonwealth of Virginia or the courts of the State of
Washington. If legal action is brought in the Commonwealth of Virginia,
Customer consents to legal process served by mail in accordance with the
provisions of the Code of Virginia Annotated and the Virginia rules of
procedure."
10. PORT AVAILABILITY. The Service shall meet an average monthly availability
specification of 99.9% ("Average Monthly Port Availability Specification")
based on the average monthly availability, on a 24 hours/day, 7 days/week
basis, for all ports provided under this Agreement. Periods when a port is
not avilable due to a cause beyond C&W USA's reasonable control or due to
C&W USA performing scheduled network maintenance work or network
optimizations shall be excluded when calculating the actual availability.
If the actual monthly port availability during a particular month is less
than the Average Monthly Port Availability Specification, the Customer may
notify C&W USA in writing ("Port Availability Notice"). The ort
Availability Notice must detail the period(s) of times during which the
Service was not meeting the Average Monthly Port Availability
Specification. C&W USA shall have up to thirty (3) days from its receipt of
the Port Availability Notice to cure such service problem ("Cure Period").
If C&W USA does not cure such service problem (i.e., meet the Average
Monthly Poet Availability Specification during the month after the Cure
Period), the Customer may (as its sole an exclusive remedy) terminate the
Agreement by providing five (5) business days' prior written notice of
termination to C&W USA. Upon such a termination, the following shall apply:
(a) Customer shall pay for all Service provided through the date of Service
discontinuance; and (b) C&W USA shall waive the termination charge."
11. PRICING. The following changes are made to Exhibit A, Pricing Schedule:
a. PRICING, RAMP-UP SCHEDULE AND MINIMUM MONTHLY PORT COMMITMENT. Delete
the "Pricing" portion of Section 1 and replace it with the following:
"PRICING.
(i) PORT PRICING. Customer shall pay C&W USA the rates per port as set
forth below:
Page 2 of 3
a. $[*] per port effective during the period starting on the date C&W
USA first makes available the Service for registration by Customer's
End Users ("Service Start Date") and ending on the date which is the
earlier of either (1) the ninetieth (90th) day after the Service Start
date, or (2) the date C&W USA implements the disconnect server.
b. $[*] per port effective at the end of the period defined in Section
(i) a. above.
It is acknowledged that the Customer shall be providing its own customer
service, billing and fulfillment to its End Users. Therefore, the above
rate applies only to internet network access and does not include any C&W
USA-provided customer service, billing or fulfillment to End Users.
Further, it is understood that C&W USA is only selling wholesale dial
internet service originating in the U.S. Therefore, the above rates apply
only to such services.
(ii) RAMP-UP SCHEDULE AND MINIMUM MONTHLY PORT COMMITMENT. The Customer must use
the minimum number of ports (each, a "Minimum Monthly Port Commitment")
during each of the Monthly Billing Periods as set forth below. If the
Customer does not meet the Minimum Monthly Port Commitment for a particular
Monthly Billing Period, for that month, the Customer shall pay C&W USA the
Minimum Monthly Port Commitment applicable to that monthly Billing Period
multiplied by the applicable rate per port set forth above. FOR EXAMPLE, if
during the 1st Monthly Billing Period, the Customer used 9,5000 ports, the
Customer shall pay C&W USA $[*] for that month (i.e.,, the Minimum
Monthly Port Commitment for that Monthly Billing period of 10,000 ports
multiplied by $[*].
-----------------------------------------------------------------------------------------------------
Monthly Billing Periods Minimum Monthly Port Commitment for each
Monthly Billing Period**
-----------------------------------------------------------------------------------------------------
1st Monthly Billing Period* [*] ports
-----------------------------------------------------------------------------------------------------
2nd Monthly Billing Period [*] ports
-----------------------------------------------------------------------------------------------------
3rd Monthly Billing Period [*] ports
-----------------------------------------------------------------------------------------------------
4th Monthly Billing Period [*] ports
-----------------------------------------------------------------------------------------------------
5th Monthly Billing Period [*] ports
-----------------------------------------------------------------------------------------------------
6th Monthly Billing Period [*] ports
-----------------------------------------------------------------------------------------------------
7th Monthly Billing Period [*] ports
-----------------------------------------------------------------------------------------------------
8th Monthly Billing Period [*] ports
-----------------------------------------------------------------------------------------------------
9th Monthly Billing Period and each monthly 40,000 ports per each
Billing Period thereafter Monthly Billing Period
-----------------------------------------------------------------------------------------------------
* Starting with the first full month after Service is first made
available to Customer's End Users for registration."
** Port quantities are subject to availability to be determined by
Starting with the first full month after Service is first made
available to Customer's End Users for registration. If Starting with
the first full month after Service is first made available to
Customer's End Users for registration cannot provide port quantities
during a particular Monthly Billing period which results in the
Customer not being able to meet its Minimum Monthly Port Commitment
that Monthly Billing Period, the Customer shall pay Starting with the
first full month after Service is first made available to Customer's
End Users for registration for the actual port quantity used that
month and not the Minimum Monthly Port Commitment for that Monthly
Billing Period.
b. Term. Delete Section 11, Term, and replace it with the following:
"11. This Agreement shall have an initial term of thirty-three (33) months
and it shall automatically renew on a month-to-month basis thereafter
until either Party terminates this Agreement as provided in Section
5."
FREEI NETWORKS, INC. Cable & Wireless USA, Inc.
-------------------- -----------------------------
Signature: /s/Xxxxxx (Bob) XxXxxxxxxx Signature: /S/XXXX CORNER
----------------------------- ----------------------
Printed Name: XXXXXX ((BOB) XXXXXXXXXX Printed Name: XXXX CORNER
----------------------------- ----------------------
Title: PRESIDENT/CEO Title: SVP, RETAIL SALES
----------------------------- ----------------------
Date: 12.23.99 Date: 2/3/00
----------------------------- ----------------------
Page 3 of 3
[*] = Confidential Treatment Requested
