NETWORK SERVICES AGREEMENT
EXHIBIT
10.18
THIS AGREEMENT, dated September 28, 2000, is entered into by and between One Call
Communications, Inc., an Indiana corporation, of 000 Xxxxxxxxxxxxx Xxxxxxxxx, Xxxxx
000, Xxxxxx, Xxxxxxx 00000 (hereinafter referred to as “One Call”) and
Aprimo 000 Xxxx 00xx Xxxxxx Xxxxx 000 Xxxxxxxxxxxx, Xxxxxxx 00000
whose address is shown on the last page of this Agreement ((hereinafter referred to as “Customer”).
WHEREAS, One Call is engaged in the business of providing network
communications services and Internet access services, and
WHEREAS, Customer desires to have One Call provide network communications services
and Internet access services,
NOW, THEREFORE, it is agreed as follows:
1. Services.
One Call will provide the services set forth in Exhibit A attached hereto, (the “Services”)
commencing on circuit installation (the “Start Date”).
2. Fees.
Customer will pay One Call for the Services in accordance with the schedule of
fees set forth in Exhibit B attached hereto, (the “fees”). Payment for Services: One
Call will invoice Customer on a monthly basis for Services provided to Customer during
the prior calendar month. Payment of each monthly invoice shall be due within thirty
(30) days after the first (1st) of the calendar month covered by each invoice. A late
payment fee equal to eighteen percent (18%) per annum on all overdue payments will be
due and payable by Customer, said fee to be computed daily from the date payment was
due until payment is received by One Call. All amounts owing by Customer shall be
payable with reasonable attorney fees in the event legal or court proceedings are
initiated for the collections thereof.
Network Services Agreement, Page 1
3. Responsibilities of Customer.
Customer will perform the tasks and provide the equipment identified in Exhibit C
attached hereto (“Customer Responsibilities”) prior to One Call’s performance of the
Services. Failure of Customer to perform any of Customer Responsibilities that are
required to be performed on or before the Start Date shall constitute a material breach
of this Agreement by Customer.
4. Term of Agreement.
The term of this Agreement shall be for a period of one (1) year, commencing on
the date hereof, and this Agreement will automatically be renewed for successive
periods of twelve (12) months each unless written notice is given by one party
to the other at least thirty (30) days prior to the expiration of the current term of
such party’s intent to terminate at the end of such term.
5. Service Interruption.
Customer shall notify One Call immediately if the Services are interrupted for
any reason. One Call will investigate the cause of the interruption within a
reasonable period of time and notify Customer of the cause. If the interruption was
caused by One Call, then One Call shall use reasonable efforts to correct the cause
and restore the Services to Customer. If, the interruption was caused by Customer or
Customer’s equipment, then Customer shall be solely responsible for correcting the
cause. One Call will cooperate with Customer in correcting any interruption caused by
Customer or Customer’s equipment.
6. Maintenance of Customer Equipment.
Customer shall maintain and service all equipment identified in Exhibit C and any
other equipment used by Customer in connection with the Services which is not provided
One Call.
7. Regulatory Matters.
Customer shall at all times comply with and conform to all federal, state and
local laws, rules, regulations, ordinances, tariffs, dockets, orders, and guidelines
applicable. Customer shall permit One Call to take whatever steps are necessary to
ensure that One Call is in compliance with all federal, state and local laws, rules,
regulations, ordinances, tariffs, dockets, orders and guidelines applicable.
Network Services Agreement, Page 2
8. Limited Warranty and Disclaimer.
One Call will provide the services to Customer in conformity with industry
standards for the Services and with accordance to the addendum attached titled,
“Service Level Agreement”. Otherwise the services are provided “as is.” Except for the
limited warranty in this section 8, One Call makes no other warranties, express or
implied, with respect to the services, and One Call specifically disclaims all other
express or implied warranties, including any implied warranties of merchantability or
fitness for a particular purpose. One Call does not warrant that the services will be
uninterrupted.
9. Limatation of Liability.
One Call’s liability to customer hereunder for damages, regardless of the legal
theory of the claim, shall not exceed all amounts actually paid to One Call under this
agreement for the services and such claim for a return of amounts paid shall be
customer’s exclusive remedy for any damages. Further, One Call shall not be liable to
customer for lost profits or for any special, incidental, or consequential damages
whatsoever, even if One Call knew about the possibility of such damages. One Call is
expressly not liable for any damages that may occur to customer’s data, business, or
business relationships due to malfunctioning or interruption of the services.
10. Indemnification.
(a) Customer shall defend, indemnify, and hold harmless One Call and its
directors, officers, agents,
officials, and employees from and against any and all claims, actions, causes of
action, liabilities, fines, penalties,
judgments, liens, and costs and expenses, including court costs and reasonable
attorney fees arising out of any
negligent or willful act or omission by Customer; any material breach of this
Agreement by Customer; any failure
by Customer to comply with any applicable federal or state laws, rules,
regulations, tariffs, dockets, laws,
ordinances, orders or guidelines, or other regulatory requirements applicable to
Customer; or any claim by a third
party related to any activities of Customer in connection with the Services unless
caused by the negligent or willful
act or omission of One Call.
(b) One Call shall defend, indemnify, and hold harmless Customer and its
directors, officers, agents,
officials, and employees from and against any and all claims, actions, causes of
action, liabilities, fines, penalties,
judgments, liens, and costs and expenses, including court costs and reasonable
attorney fees arising out of any
negligent or willful act or omission by One Call; any material breach of this
Agreement by One Call; or any failure
by One Call to comply with any applicable federal or state laws, rules,
regulations, tariffs, dockets, laws,
ordinances, orders or guidelines, or other regulatory requirements applicable to
One Call.
Network Services Agreement, Page 3
11. Termination.
In addition to all other rights of termination as herein provided, both Customer
and One Call shall have a right to terminate this Agreement by reason of a material
breach by the other party of any terms of this Agreement if such breach is not cured
within thirty (30) days after written notice of such breach is given to the breaching
party. One Call may terminate this Agreement at any time upon written notice to
Customer of its current network facilities or arrangements are terminated for any
reason beyond the control of One Call.
12. User Relations.
Customer shall be responsible for communicating with its users of the Services
provided by One Call. Customer shall independently establish the charges to its users
for the Services provided in connection with this Agreement. Customer shall be solely
responsible for passwords and any other security systems implemented by Customer or its
users of the Services provided under this Agreement. Customer acknowledges that
information transmitted using the Services may be publicly accessible. Customer shall
assume sole responsibility for determining whether any transmitted information is
confidential and shall adviser its users of the public accessibility of information
transmitted using the services. One Call assumes no responsibility for protecting the
privacy of any information transmitted using the Services and no responsibility for
limiting access to such information.
13. Force Majeure.
To the extent that either Customer or One Call shall be prevented or delayed from
performing hereunder or giving any notice because of any event or circumstance over
which such parties have no reasonable control (including, without limitation, war,
fire, civil commotion, strike, flood, power shortages or outages, communications
breakdowns and outages, acts or orders or regulatory agencies having jurisdiction,
and the like), then such party shall be excused from performing or giving such notice
for the duration of such event or force majeure, provided, however, that if the
duration of the delay caused by such an event shall exceed thirty (30) days, the party
who was to benefit from the performance of such act shall have the right to terminate
this Agreement by giving written notice to the other party.
Network Services Agreement, Page 4
14. Nature of Relationship Between Parties.
Nothing herein shall be construed to place the parties in a relationship of partners or joint
venturers, and this Agreement does not make either party the agent or legal representative of the
other for any purpose whatsoever. The parties further agree that no representation shall be made by
either party that would create an apparent agency, employment, partnership, or joint venture.
Neither party shall have the power, expressed or implied, to obligate or bind the other in any
manner whatsoever. Neither party shall be responsible for any act or omission of the other or any
employee of the other. No employee of One Call is or shall be considered an employee of Customer
and no employee of Customer shall be considered an employee of One Call for any purpose in
connection with the performance of Services under this Agreement.
15. Changed Business Economic Conditions.
The parties hereto recognize and affirm that the fee schedule set forth in Exhibit B is based
upon current business and economic condition in the telecommunications industry in the United
States and that such business and economic conditions may adversely change in the future by reason
of competition, industry consolidation, governmental regulation, loss by One Call of current
network facilities or arrangements, and factors which are beyond the control of One Call. In view
of these factors, One Call may change the fee schedule at any time upon thirty (30) days prior
written notice to Customer. Customer then has thirty (30) days to terminate Agreement after notice
of change in the Schedule.
16. Bankruptcy.
In the event either One Call or Customer becomes bankrupt (files a petition in bankruptcy
or has an involuntary petition in bankruptcy filed against them and said petition is not
dismissed within sixty (60) days of such filing), the other party may elect to terminate this
Agreement by written notice effective at the end of the calendar
month such notice was given.
17. Arbitration.
All claims or disputes arising out of this Agreement or the alleged breach
thereof shall be decided by arbitration in accordance with the Commercial Arbitration
Rules of the American Arbitration Association then in existence unless the parties
mutually agree otherwise. Notice of the demand for arbitration shall be submitted in
writing to the other party to the Agreement and to the American Arbitration
Association. All arbitration proceedings and hearings shall be held in Indianapolis,
Indiana. Any arbitration award shall be binding and enforceable in any court having
jurisdiction of the parties hereto. The cost of the arbitration proceeding, exclusive
of each party’s own attorney fees and out-of-pocket expenses, shall be borne equally
by the parties.
Network Services Agreement, Page 5
18.
Notices.
Any
notice either party desires to give the other party hereunder shall be in writing
and shall be delivered by first class United States mail, postage prepaid, addressed to
the parties at their addresses set forth below unless such addresses
are changed by written notice from time to time. Written notices may
also be faxed to either party, but, to be effective, the notice must
also be mailed as aforesaid.
| If to One Call: | One Call Communications, Inc. | |||
| 000 Xxxxxxxxxxxxx Xxxxxxxxx | ||||
| Xxxxxx, Xxxxxxx 00000 | ||||
| ATTENTION: President | ||||
| Fax Number: 000-000-0000 | ||||
| If to Customer: | To Customer at the address set forth below. |
Network Services Agreement, Page 6
19. Non-Waiver.
No term or provision of this Agreement shall be deemed waived and no breach or default shall
be deemed excused unless such waiver or consent shall be in writing
and signed by the party claimed to have waived or consented. No
consent by any party to, or waiver of, a breach or default by the
other, whether express or implied, shall constitute a consent to, waiver of, or excuse for any different or subsequent breach or
default.
20. Assignment.
This Agreement may not be assigned by Customer except with the written consent of One Call, which
consent shall not be unreasonably withheld.
21. Governing Law.
This Agreement and any disputes relating thereto shall be governed by the Laws of the State of Indiana.
22. Binding Effect.
This Agreement shall be binding upon and inure to the benefit of the successors and permitted assigns of
the parties.
23. Headings and Titles.
The
headings and titles in this Agreement are for convenience of reference only
and shall not be construed to define or limit any of the terms herein or affect the
meanings or interpretations of this Agreement.
24. Entire Agreement.
This Agreement represents the entire understanding between the parties regarding
the subject matter hereof and supersedes all other prior and contemporaneous
agreements, understandings, negotiations, and discussions between the parties with
respect to such subject matter.
25. Severability.
If any provision of this Agreement is held by a court of competent jurisdiction to be
contrary to law, the
remaining provisions of this Agreement will remain in full of force and effect.
Network Services Agreement, Page 7
IN WITNESS
WHEREOF, the parties, by their duly authorized representatives, have executed this
Agreement the day and year first above written.
ONE CALL COMMUNICATIONS, INC.
|
APRIMO INCORPORATED | |
(One Call)
|
(Customer) | |
By: /s/ [ILLEGIBLE]
|
By: /s/ Xxxxxxxx Xxxxxxxxxxxx | |
Printed Name:
|
Printed Name: Xxxxxxxx Xxxxxxxxxxxx | |
Title:
|
Title: VP | |
Date:
|
Date: September 12, 2000 | |
| Customer Address: | ||
| 000 Xxxx 00 xx Xx., Xxxxx 000 | ||
| Xxxxxxxxxxxx XX 00000 | ||
| Attention: Xxxx Xxxxxxxx | ||
| Contact Number: 000.000.0000 | ||
| Fax Number: 000.000.0000 | ||
| Emergency Number: 317.508.6946 | ||
| Technical Contact: | ||
| Contact Name: XXXXXX XXXXXXXX | ||
| Contact Number: 000.000.0000 | ||
| Emergency Number: 317.698.6383 | ||
| Maintenance E-mail Notification: | ||
| xxxxxx. xxxxxxxx @ xxxxxx.xxx | ||
Network Services Agreement, Page 8
