EXHIBIT 10.22
SERVICE AGREEMENT
AGREEMENT NUMBER 1620
When authorized signatories of both GE Capital Spacenet Services, Inc. ("GE")
and Intercept Communications Technologies, L.L.C. ("Customer") have signed
below, this offer becomes a binding Services Agreement (Agreement") between
them. Then GE will be bound to provide those services described, under the
terms and conditions printed on this and subsequent pages of this Agreement, and
Customer will be bound to take and pay for those services under those terms and
conditions.
AGREED TO BY: ACCEPTED BY:
Intercept Communications GE Capital Spacenet Services,
Technologies, L.L.C. Inc.
SIGNATURE: /s/ Xxxx Xxxxx /s/ Xxxx X. Xxxxxxxxx
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PRINTED NAME: Xxxx Xxxxx Xxxx X. Xxxxxxxxx
TITLE: Vice President Vice President and General
Counsel
DATE: February 25, 1998 February 25, 1998
ADDRESS: 0000 Xxxxxxx Xxxxxx Xx, Xxx 000 0000 Xxx Xxxxxx Xxxx
Xxxxxxxx, Xxxxxxx 00000 XxXxxx, Xxxxxxxx 00000
Terms and Conditions
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1. BACKGROUND AND OVERVIEW - Under the terms of this Agreement, GE will provide
the necessary personnel, materials, and services as required to render data
transmission services. The network communications services are as described in
this document, including appendices. This service will utilize GE-Provided
Equipment ("Equipment"), software, and services provided by GE. Certain
Equipment shall be subject to environmental limitations as prescribed by GE.
Interface to the Equipment shall be via RS-232 interface at the remote location
connecting a Customer-provided terrestrial circuit (Backhaul) to Customer's data
center. Customer's use of the Equipment will provide Customer with a
transmission system capable of carrying data traffic between Customer's host
computers and remote locations specified by Customer.
2. TERM - The Term of this Agreement (Agreement Term") shall commence on
signature of this document ("Effective Date"). Each installed Site (a "Site"
being a VSAT location) hereunder shall have a Minimum Site Service Term
("Minimum Site Service Term) of sixty (60) months. Each Site shall
automatically continue after the Minimum Site Service Term to the End Date of
the Agreement (Agreement End Date), which shall be the last day of service
provided at the last Site. Any Site having completed its Minimum Site Service
Term may be terminated by either party by providing at least sixty (60) days
advance notification of termination.
3. TRANSMISSION SERVICE
A. GE warrants that the transmission services provided hereunder for the entire
network will be operational for 99.8% of the scheduled service time averaged
over the most recent twelve (12) months of the Agreement Term. Should a service
interruption occur, the duration of the service interruption will be as follows:
It will be deemed to commence at the time that a malfunction is reported to the
Network Management Center by a Customer representative and will be deemed to
have ended when communications services have been restored and the Customer's
data center has been contacted. If the Customer's data center is not open at
the time of restoration of service, the service interruption shall be deemed
complete at the time of restoration of service.
B. In the event GE fails to provide service to Customer for more than twelve
(12) consecutive hours, consistent with the selected maintenance plan, after
notification to GE of any failure or suspected failure, GE shall, upon the
request of the Customer, credit Customer's account by an amount equal to two
percent (2%) of the monthly service fee at each affected Site for each
additional 12 hour period during which the service interruption continues. Said
credit shall be the sole and exclusive remedy of Customer with respect to
interruption of service. GE shall not be liable for any service interruption
and credit shall not be given for any failure or interruption of service due to
the failure or nonperformance of any Customer-provided terrestrial equipment,
action or inaction by Customer, its employees, invitees, third parties,
Customer-scheduled down-time (maintenance, upgrades, etc.) or a breach of this
Agreement by Customer or a third party or any other cause beyond GE's control,
to include but not be limited to those actions set forth under the Force Majeure
provision of this Agreement. If GE is precluded from restoring service due to
Site inaccessibility or lack of an authorized representative to grant access or
provide escort, as appropriate, GE shall not be liable for the service
interruption for the time associated with such Site inaccessibility or lack of
escort.
4. INSTALLATION OF EQUIPMENT - Customer shall provide adequate electrical
outlets and power for installation and operation of all Equipment to be provided
by GE as part of this Agreement. Customer shall pay GE for the installation of,
removal, or replacement of any additional equipment requested by Customer
outside of the scope of a standard installation, as prescribed by GE. Customer
shall grant access to GE for installation of the Equipment during normal
business hours, including appropriate security escort when required. Late
cancellation of an installation or failure to grant access for a scheduled
installation will result in a Canceled Site Installation charge.
5. MAINTENANCE AND SERVICE
A. Subject to the terms and conditions hereof, GE shall provide maintenance
support for all Equipment provided as part of this Agreement. Such maintenance
shall consist of: (1) Equipment maintenance which includes travel to and from
the Site and technical trouble shooting to isolate any problems; (2) labor for
on-Site repair and replacement, as required, of malfunctioning Equipment; (3)
diagnostic support of malfunctioning Equipment; (4) software maintenance for one
protocol; (5) for Sites located within 50 miles of a GE field service office, GE
will use commercially reasonable efforts to ensure that the field service
technician will arrive at the Site ninety percent (90%) of the time within four
hours of dispatch, and (6) coverage during GE's normal business hours, Monday
through Friday, 9AM - 5PM, excluding holidays; provided, however, that if the
24-hour maintenance option in Appendix A is selected, the maintenance hours
shall be as set forth in Appendix A. GE's maintenance obligations under this
Agreement do not include provision of consumable supplies, repair or replacement
of Equipment failures or malfunctions caused by improper operations, maintenance
by other than GE authorized representatives, relocation or modification by
Customer or others not under GE's control, failure or interruption of Customer-
provided terrestrial communications or electrical power, accident, fire,
lightning, snow, snow removal, or other hazards beyond normal range of use,
trouble calls where no problem is found and the reported problem does not repeat
within five calendar days, or failures or malfunctions resulting from exposure
of the Equipment to conditions beyond its operating conditions; such failures
and malfunctions will be repaired on a commercially reasonable effort basis and
billed to Customer on a time and materials basis at GE's then-effective prices.
Customer shall grant or have granted access as required for maintenance of the
Equipment during maintenance hours, including appropriate security escort when
required. Failure to grant or have granted access during a maintenance call
will result in an Aborted Site Visit charge.
B. Customer may give GE notice of any Equipment or network failure or suspected
defect by calling GE's 24-hour Network Management Center at 0-000-000-0000.
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6. CHARGES AND PAYMENT
A. All payments made under this Agreement shall be in U.S. Dollars. The fees
or prices for Services are as set forth in Appendix A. GE will xxxx Customer for
monthly charges one (1) month in advance of the month's service due and payable
the last day of the billing calendar month (e.g. September 1 billing for
October's service is due and payable September 30.) Monthly charges for partial
months of Services will be prorated on a thirty (30) day month basis. Invoicing
for each Site shall commence once the Site is available for transmission
service.
B. Customer shall be required to supply as payment security a deposit of
$25,000 within ten days of signature of this Agreement. Upon the completion of
twelve months of rendering of prompt payment in accordance with the terms of
this Agreement, such deposit shall be returned to Customer.
C. In the event that any fees or charges are not paid in full by Customer when
due and such non-payment continues for a subsequent thirty (30) day period, then
GE shall provide Customer with written notice of such non-payment. If Customer
fails to cure such non-payment within ten (10) days after the date of such
notice, then GE, in addition to and not in lieu of its rights under Section 16
(Termination and Suspension) below, reserves the right to charge Customer a late
payment charge calculated on the past due balance at the rate of one and one-
half percent (1.5%) interest per month for each month or part thereof. This
late payment charge will not be imposed on the portion of an invoice which may
reasonably be under dispute by Customer, provided that Customer has paid the
undisputed portion in full and has notified GE of the disputed amount within 15
days of receipt of GE's invoice along with a written explanation of the dispute
based on the terms of this Agreement.
7. TAXES AND FEES - The Service Fee and other charges under this Agreement are
as set forth in Appendix A. These charges exclude all present and future taxes,
duties, or fees of any nature, including, but not limited to federal, state, or
local sales or use taxes, fees, excises, property or gross receipts taxes or
fees, telecommunication taxes, license or access fees, or other taxes or duties
which may now or hereafter be levied on the services provided or on payments
made under this Agreement. Any such taxes, fees, or duties, however
denominated, which may now or hereafter be levied on the services provided, the
Equipment installed, or payments made under this Agreement, excluding taxes
based on GE's net income, shall be paid by Customer. If GE is required to pay
or pays any of these, Customer shall promptly reimburse GE for such payments
including applicable penalties and interest, if any. Taxes, late payment
charges, and other charges (other than those imposed due to GE's negligence)
will be invoiced following their accrual. GE agrees to provide reasonable
documentation supporting any such charges.
8. CLOSURE OF BUSINESS LOCATION - In the event Customer ceases to do business
at one of its Sites, Customer may request that GE transfer the service to some
other business location (it being understood that GE shall reasonably comply
with such request provided that Customer shall pay GE, at the price set forth in
Appendix A, for the removal of the Equipment and reinstallation at such other
premises, as well as storage or shipping fees or charges, on a mutually
agreeable schedule). To the extent that the Minimum Site Service Term has not
expired at the Site, ceasing to do business at such Site by Customer shall not
relieve Customer of its obligation pertaining to the Minimum Site Service Term.
Payment by Customer of the Standard Service charge during the time of transfer
shall continue without interruption. Subscriber shall give GE at least 30 days
written notice of such transfer or closure of its business or business location.
9. ASSIGNMENT - Either party may, on written notice to the other, assign its
rights and obligations hereunder to: (i) its parent corporation or an
affiliated corporation owned by a common parent in connection with any corporate
restructuring, and (ii) a third party entity in connection with the transfer of
all or substantially all of the assigning party's assets to such entity. Except
as provided above in this Section, either party may assign its rights and
obligations under this Agreement to a third party only upon receiving the prior
written consent of the other party, which consent may be reasonably conditioned
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but will not be unreasonably withheld. The parties agree that no assignments
will be made unless the assignee agrees to accept in full the responsibilities
and obligations of the assigning party.
10. GE PROVIDED EQUIPMENT
A. Title - Title to the Equipment installed or provided by GE under this
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Agreement shall remain with GE. Customer shall not move the Equipment, nor
permit the Equipment to be moved, modify the Equipment nor permit the Equipment
to be modified, and Customer shall not permit any liens or encumbrances to be
placed upon the Equipment. GE shall have the right and authority acting in its
own name or the name of Customer to complete and file such documents as it deems
necessary to protect its security interest in or ownership of the Equipment or
other equipment and Customer shall fully cooperate with and support all such
filings by GE.
B. Risk of Loss - Risk of loss or damage for Equipment shall pass to Customer
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upon installation of the Equipment at a Customer designated Site. Customer
shall insure all Equipment installed and all GE-owned equipment on Customer's
premises against risk of loss or damage due to any cause other than normal wear
and tear, and shall name GE as a loss payee to the extent of its losses. Proof
of such insurance by a carrier acceptable to GE shall be made available to GE by
Customer upon request by GE. Customer shall notify GE of any material change in
such insurance coverage or insurance carrier.
11. REMOVAL OF EQUIPMENT - Upon expiration or termination of this Agreement, GE
shall have the right to abandon equipment in place if it so elects, after
written notice has been provided to Customer. If GE elects to remove equipment,
Customer shall facilitate GE's entry into all applicable premises to permit GE
to remove any Equipment and any Software owned by GE and used to provide
Services.
12. GOVERNING LAW - This Agreement shall be construed and enforced in
accordance with and shall be governed by, the laws of the United States and of
the Commonwealth of Virginia. The parties agree to submit to the jurisdiction
of the state and federal courts sitting in the Commonwealth of Virginia. Venue
for any claims hereunder shall be a court of competent jurisdiction in or near
Fairfax County, Virginia.
13. RESPONSIBILITIES OF CUSTOMER AND GE
A. Compliance and Approvals - Each party shall comply with all applicable
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governmental laws, rules and regulations. Customer is responsible for obtaining
any local permits, landlord consents or other waivers or consents that may be
necessary for GE to install the Equipment and for Customer to make use of the
communications services. The Customer is advised to obtain any such required
permits or approvals well in advance of installation. If on-Site installation
is prevented due to any of the above, the Aborted Site Visit charge shall apply.
The obligations of Customer under this Agreement are not conditioned upon
Customer's receipt of such authorizations or approvals.
B. Backhaul - Customer shall be responsible for all charges, non-recurring and
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recurring, and communications hardware, associated with the terrestrial
communications link between Customer's data center and GE's designated
communications hub. GE shall have no warranty obligations in connection with
any terrestrial communications link, other than to pass through to Customer any
warranties by the vendor or provider thereof.
C. Insurance - Each party, at its own expense, will obtain and/or maintain
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insurance to cover risks associated with their respective business activities
detailed herein.
D. Standard Site Installation Lead Time. GE shall use commercially reasonable
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efforts to schedule and complete a standard installation of Equipment at
Customer-designated Sites for utilization of this service from 30 to 45 days of
receipt of notification and Site information from Customer, though nonstandard
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installations may take longer. Installations will be subject to mutually
acceptable scheduling, taking into consideration the number of Sites to be
installed. Expedited installation service is available as set forth in Appendix
A. Necessary information to be supplied by Customer includes Site address, point
of contact at Site including telephone number, desired installation date, and
any special installation requirements. Customer shall have obtained all
necessary permits and approvals adequately in advance of the installation.
Installations canceled by Customer less than four (4) business days prior to the
mutually scheduled installation shall be subject to the canceled installation
fee.
E. Minimum Order Quantity. Within twenty-four (24) months of the signature of
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this Agreement, the minimum quantity of Sites for network communications
services set forth in Appendix B shall have been ordered for installation within
ninety (90) days. In the event the minimum quantity have not been ordered
within such twenty-four (24) month period, invoicing for Unordered Minimum
Quantity Sites shall commence in accordance with Item 16 of Appendix A.
14. LIABILITY OF GE AND CUSTOMER
A. Customer shall defend, indemnify and save GE harmless from and against
injuries, loss or damage to GE's employees or property or to the person or
property of third parties to the extent they are caused by the willful or
negligent acts or omissions of Customer (and all risk of loss and damage to the
property caused by anyone other than GE and its subcontractors while the
property is in Customer's control or custody), and from and against any and all
claims, expenses, or losses (including reasonable attorneys' fees and expenses)
arising out of or in connection with the application or content of Customer's
transmissions through the provided transmission services.
B. Each party shall defend, indemnify and save the other harmless from and
against injuries, loss or damage to the other's employees or property or to the
person or property of third parties to the extent they are caused by the willful
or negligent acts or omissions of the perpetrating party or that of its
subcontractors, agents, or representatives while performing their duties at
Customer's or End-User's Sites.
C. Except for the obligation to defend, indemnify and hold harmless provided in
Section 14.B, GE's total liability under this Agreement shall in no case exceed
the Service Fees paid to it by Customer during the six months immediately
preceding the cause of action. Customer has accepted this limitation of
liability for Services provided hereunder and understands that the price of the
Services would be higher if GE were requested to bear additional liability for
damages.
D. UNDER NO CIRCUMSTANCES SHALL EITHER PARTY BE LIABLE TO THE OTHER PARTY OR TO
ANY THIRD PARTIES FOR INCIDENTAL, INDIRECT, SPECIAL OR CONSEQUENTIAL DAMAGES OF
ANY KIND, INCLUDING LOST PROFITS, LOSS OF USE OF EQUIPMENT OR SERVICES, OR
DAMAGES TO BUSINESS OR REPUTATION ARISING FROM THE PERFORMANCE OR NON-
PERFORMANCE OF ANY ASPECT OF THIS AGREEMENT WHETHER IN CONTRACT OR TORT OR
OTHERWISE, AND WHETHER ADVISORY HAS BEEN MADE OF THE POSSIBILITY OF SUCH
DAMAGES.
E. EXCEPT AS STATED HEREIN, GE PROVIDES NO WARRANTIES, EXPRESS, IMPLIED OR
STATUTORY, INCLUDING BUT NOT LIMITED TO, ANY IMPLIED WARRANTIES OF
MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE RESPECTING SERVICES
PERFORMED, LICENSED SOFTWARE, OR EQUIPMENT FURNISHED UNDER THIS AGREEMENT.
15. FORCE MAJEURE - Neither party shall be liable for failure to perform its
obligations under this Agreement to the extent such failure is due to causes
beyond its commercially reasonable control, including but not limited to
externally caused transmission interference, Acts of God, the public enemy,
embargo, power failures, governmental act, fire, accident, strike, war, riot,
inclement weather, irreparable facility or key equipment failure or destruction,
or such other cause that is beyond the control of the parties. In the event of
a force majeure, the party invoking this Section shall notify the other party in
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writing of the events creating the force majeure. An interruption of service
due to a Force Majeure action shall not be deemed to be part of the measured
period for system availability. If any such delay exceeds forty-five (45) days,
then following such forty-five day period either party hereto may terminate the
unperformed portions of this Agreement on ten (10) days' prior written notice to
the other party.
16. TERMINATION AND SUSPENSION OF SERVICE
A. Either party may terminate this Agreement only for default in the event of
material breach by the other party if such breach continues for a period of
sixty (60) days after written notice of intention to terminate describing the
default is given by the non-breaching party and such event of breach is not
remedied within the stated period. Notwithstanding the foregoing, GE may, on
thirty (30) days' written notice, suspend or terminate the Service to be
provided under this Agreement, due to Customer's non-payment of charges due.
Upon termination for material default by either party, Customer shall cease
utilizing the Service and shall remit to GE upon receipt of a final invoice all
amounts accrued or due to GE up to and including the termination date. Customer
hereby consents to the jurisdiction of any court or administrative agency having
subject matter jurisdiction in which GE may elect to bring an injunctive action
to require Customer to cease using service at any or all Sites, as applicable,
if Customer fails or refuses to do so after receipt of notice pursuant to this
Article.
B. If default is due to the Customer, then Customer shall pay all applicable
amounts due for the remaining term in accordance with this Agreement, plus
deinstallation charges. Either party may pursue any other remedies existing at
law or in equity to the extent consistent with this Agreement and its governing
law. GE and Customer agree that damages to GE resulting from a termination
hereunder are not readily determinable either at the time of signing of this
Agreement or at the time of its termination and that the amount of the
liquidated damages is both necessary and reasonable. Either party may bring
legal action for the violation or breach of this Agreement, and shall be
entitled to recover reasonable attorneys' fees incurred in enforcing obligations
as stated herein.
C. Sites which have completed their Minimum Site Service Term may be terminated
without penalty, though Customer shall be liable to GE for all obligations then
accrued to GE as of the effective date of termination. With sixty (60) days
notice and if a) at least one year of service has been rendered, and b) if more
than six months remains under the term of the Agreement, Customer may terminate
its network by paying 75% of the total outstanding monthly Standard Service
charges for all Sites not having completed the Minimum Site Service Term.
D. Notwithstanding the above, either party may terminate this Agreement without
penalty within thirty (30) days of signature should the provision of
transmission services be determined to be unfeasible as a result of any testing
or certification efforts during this 30 day period.
17. CONFIDENTIALITY
A. Neither party shall, without the other's written consent, disclose to any
third party any manuals, technical data, software, pricing, terms, proprietary
information, or trade secrets, nor permit any third party to have access thereto
or to any of the other party's Equipment or software.
B. The content of this Agreement shall be treated as confidential and shall not
be disclosed by Customer or GE to third parties without the prior written
consent of the other party. The existence of this Agreement may be disclosed in
advertising or publicity by either party, provided that such disclosure is
approved in writing by the non-disclosing party prior to release for
publication; provided, however, that either party may include the name of the
other party in a serial list of Customers or vendors (as applicable) of each
others' products and services. Neither party may use the trademarks, trade
names, or logos of the other party without prior written permission of the other
party.
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18. SEVERABILITY - In the event any one or more of the provisions of this
Agreement shall for any reason be held to be invalid or unenforceable, the
remaining provisions of this Agreement shall be unimpaired, and upon mutual
agreement of the parties the invalid or unenforceable provision shall be
replaced by a provision which, being valid and enforceable, comes as close as
lawfully possible to the intention of the parties underlying the invalid or
unenforceable provisions.
19. NON-WAIVER - The failure of either party to insist upon strict adherence to
any material term or condition of this Agreement on any occasion shall not be
considered a waiver of any right thereafter to insist upon strict adherence to
that term or condition or any other material term or condition of this
Agreement.
20. RELATIONSHIP OF PARTIES - This Agreement is not intended by the parties to
constitute or create a joint venture, pooling arrangement, partnership, agency
or formal business organization of any kind. GE and Customer shall be
independent contractors with each other for all purposes at all times and
neither party shall act as or hold itself out as agent for the other unless so
designated in a separate writing signed by the principal, nor shall either party
create or attempt to create liabilities for the other party. All obligations
under this Agreement shall be performed by and between GE and Customer. This
Agreement does not create any rights in any end-users or in any other third
party not a signatory hereto.
21. NOTICES AND POINTS OF CONTACT - Except as otherwise provided, all
important notices or other communications required or desired to be given or
sent in connection with this Agreement shall be in writing and transmitted to
the applicable party by hand delivery or U.S. certified mail, return receipt
requested, postage prepaid. Invoices and other non-emergency communications may
be transmitted via regular US mail or facsimile.
22. ENTIRE AGREEMENT - This Agreement, together with the appendices listed
herein, comprises the entire and exclusive agreement of the parties with respect
to the subject matter hereof and supersedes any and all prior and
contemporaneous agreements, understandings, arrangements, proposals or
representations whether written or oral, heretofore made between the parties
hereto and relating to this subject matter. It does not, however, revoke or
rescind any prior agreements for other services which may have been executed by
the parties. This Agreement may be modified, changed or amended only by an
express written agreement signed by duly authorized representatives of both
parties stating that it is an amendment. Waivers, or purported waivers, of any
provision of this Agreement shall be in writing and signed by an authorized
officer of both parties.
23. LICENSE OF SOFTWARE
A. "Licensed Software" means any computer program, including any modifications,
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updates, or additions which may be included by GE in any or with provided
Equipment as object code or executable form in any medium, and related materials
such as diagrams, manuals and other documentation which are for use in the
Equipment provided to Customer under this Agreement.
B. By signature of this document, GE grants to Customer a non-exclusive license
to use or have used the Licensed Software as it resides in GE's Equipment, but
only for the purpose of causing such Equipment to operate for the provision of
transmission services and not otherwise. Customer shall not permit any third
party to gain access to the Licensed Software or transfer the Licensed Software
to any third party, copy or permit to have copied the Licensed Software, reverse
engineer, disassemble, de-compile, or transmit the Licensed Software in any form
or by any means. Violation of these restrictions shall entitle GE to terminate
this License of Software without liability, take possession of the Equipment,
software, and terminate this Agreement for default. Licensed Software is and
shall remain the exclusive property of GE or GE's vendors. No license other
than that specifically stated herein is granted to Customer, and Customer shall
have no right under patent, trademark, copyright, trade secret or other
intellectual property of GE or GE's vendors other than that granted herein.
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C. Customer agrees to include this provision, though suitably amended to
reflect the parties, in any sub-contract to provide data transmission services
utilizing the services provided herein.
24. APPENDICES - The following Appendices are incorporated as part of this
Agreement:
APPENDIX A Listing of Provided Services and Prices
APPENDIX B Order Summary
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