ICS NETWORK SYSTEMS EQUIPMENT COLLOCATION AND SERVICES AGREEMENT
This Agreement ("Agreement") between ICS Network Systems Incorporated, a New
York Corporation with an office at 000 Xxxxxxx Xxxxxx, Xxxxxxx, Xxx Xxxx,
("ICS") and Educational Video Conferencing, Inc. a New York Corporation with
offices located at 00 Xxxx Xxxxxx Xxxxxx Xxxx, Xxxxx 000, Xxxxxxx, XX 00000,
hereinafter referred to as ("Customer").
ICS and Customer agree that the following terms and conditions apply to the
provision and use, within the United States, of the AT&T ISDN Services and
related products ("Services") referenced in any Attachments to this Agreement
signed by Customer and accepted in writing by ICS. Such Attachments are an
integral part of this Agreement.
1. ISDN Services Contract Period, Monthly Payments, Deposits and Service
Activation Fees
A) This Agreement is effective when signed by Customer and returned with the
first months service charge of $8,246.00 ($589.00 x 14) and accepted in
writing by ICS. The contract period commences on the date the ISDN services
are activated and unless terminated in accordance with the provisions herein,
will continue in effect for 36 months.
B) Customer shall pay ICS the monthly charges of $8,246.00 ($589.00 x 14) due
under this Agreement, without deduction or setoff. All payments shall be
mailed to the address stated on the invoice. Invoices will be issued monthly
for the next months services and are payable within thirty (30) days from the
date of the invoice.
C) Customer agrees to pay any taxes due on the Services, however designated
(excluding taxes on ICS's net income), unless Customer provides a valid tax
exemption certificate.
D) Customer agrees to pay the ISDN Service Activation and Installation fee of
$8,500.00 within thirty days of the ISDN Service activation date.
E) Customer agrees to pay $500.00 per month for each video server collocated
at the facility. Customer will be invoiced net 30 days from the date each
server was received at the facility. For purposes of this agreement, equipment
collocation services will be provided on a 36 month term basis, at Customer's
option, and collocation fees will be fixed at $500.00 per month for each video
server for the 36 month term.
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2. TERMINATION
A) If Customer: (i) fails to pay any outstanding charges within ten (10) days
after receipt of written notice from ICS of delinquency; or (ii) fails to
perform or observe any material term or condition of this Agreement relating
to the content of any transmissions by a User or to interference with,
disruption of, or other improper utilization of network resources after the
provision of written notice from ICS of such failure; or (iii) fails to
perform or observe any other material term or condition of this Agreement
within thirty (30) days after receipt of written notice from ICS of such
failure, ICS may terminate this Agreement. Upon termination, Customer shall be
liable for all charges incurred as of the date of termination and, if
applicable, any termination charges associated with termination of the
Services. All such charges that are not previously due and payable shall be
payable within thirty (30) days from the date shown on ICS's invoice.
B) If ICS fails to perform or observe any material term or condition of this
Agreement within thirty (30) days after receipt of written notice from
Customer of such failure, Customer may terminate the Services materially
affected by the breach. Except for charges incurred as of the date of
termination, Customer shall have no further financial obligations to ICS for
such terminated Services.
C) Customer may terminate this agreement prior to the ISDN service activation
date without any termination liability and Customer's first month's service
deposit will be refunded.
D) Termination of the Services after the service activation date and prior to
the 36 month term of this agreement for any reason other than the provisions
specified in section 2B or 4A of this agreement will require that early
termination charges be paid by Customer to ICS in an amount equal to 100% of
the monthly ISDN service payments remaining for months 1-12, plus 50% of the
monthly ISDN service payments remaining for months 13-24, plus 25% of the
monthly ISDN service payments remaining for months 25-36.
E) Termination charges associated with equipment collocation services are not
applicable as the equipment collocation services, with respect to termination
fees, will be considered a month to month service arrangement.
3. CUSTOMER RESPONSIBILITIES
A) Customer is solely responsible for the content of any transmissions using
the Services, or any other use of the Services by Customer or by any person or
entity Customer permits to access the Services (a "User"). Customer agrees
that it and any User will not use the Services for illegal purposes or to
interfere with or disrupt other network users, network services or network
equipment. Violations of the foregoing by Customer or any User may result in
removal of violative communications and early termination of the Service.
Customer shall defend, indemnify, and hold harmless ICS (as defined in
Paragraph 5A) from and against all liabilities and costs (including reasonable
attorneys' fees) arising from any and all claims by any person based upon the
content of any transmissions by Customer or any User using the Services or any
other use of the Services by Customer or any User.
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B) Customer agrees to comply, and to use best efforts to cause all Users to
comply, with United States law with regard to the transmission of technical
data which is exported from the United States using the Services.
4. ICS RESPONSIBILITIES
A) ICS will provide the Services as described in the Attachments. However,
ICS's policy is to continually improve its products and services, and so may
from time to time change the methods for delivering Services provided to
Customer under this Agreement. In the event that ICS changes the Services in
any way that materially decreases the level of the Services available to
Customer, Customer shall have a one time right to terminate this Agreement
within the thirty (30) day period following notice of such change by ICS and
payment of all charges incurred as of the termination date, but without any
termination liability to ICS.
B) ICS warrants to Customer that its collocation facility is and will continue
to be maintained in good working order, including the UPS(s) (Uninterrupted
Power Supply), standby diesel generator(s), electrical service, switchgear and
HVAC, (Heating, ventilation and air conditioning) equipment. Furthermore, ICS
warrants that these systems are fully operational and are properly configured
to operate in an emergency and are routinely tested by ICS in full cycle, full
load test(s) and that all of the above equipment is insured and covered under
manufacturer's warranty or extended maintenance agreements.
5. WARRANTY AND LIMITATION OF LIABILITY
A) FOR PURPOSES OF THIS PARAGRAPH, ICS INCLUDES ANY AFFILIATED AND SUBSIDIARY
COMPANIES OF ICS, ANY SUBCONTRACTORS AND SUPPLIERS OF THE FOREGOING, AND THE
DIRECTORS, EMPLOYEES, OFFICERS, AGENTS, SUBCONTRACTORS AND SUPPLIERS OF ALL OF
THEM.
B) ICS SHALL NOT BE LIABLE FOR INDIRECT, INCIDENTAL, CONSEQUENTIAL OR SPECIAL
DAMAGES, INCLUDING WITHOUT LIMITATION DAMAGES FOR HARM TO BUSINESS, LOST
PROFITS, LOST SAVINGS OR LOST
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REVENUES, WHETHER OR NOT ICS HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH
DAMAGES. ICS SHALL NOT BE LIABLE FOR ANY DAMAGE THAT CUSTOMER MAY SUFFER
ARISING OUT OF USE OF, OR INABILITY TO USE, THE SERVICES OR PRODUCTS PROVIDED
HEREUNDER.
C) ICS SHALL NOT HAVE ANY LIABILITY FOR DAMAGES OR DELAYS DUE TO FIRE,
EXPLOSION, LIGHTNING, POWER SURGES OR FAILURES, STRIKES OR LABOR DISPUTES,
WATER, ACTS OF GOD, THE ELEMENTS, WAR, CIVIL DISTURBANCES, ACTS OF CIVIL OR
MILITARY AUTHORITIES OR THE PUBLIC ENEMY, INABILITY TO SECURE PRODUCTS OR
TRANSPORTATION FACILITIES, FUEL OR ENERGY SHORTAGES, ACTS OR OMISSIONS OF
COMMUNICATIONS CARRIERS, OR OTHER CAUSES BEYOND ITS CONTROL.
6. Equipment Co-location Fees and Service Description
A) ICS provides rack space for Customer equipment co-located at ICS's facility
in Bohemia NY. ICS does not restrict the size of equipment Customer may wish
to co-locate however ICS reserves the right to re-quote Customer to co-locate
equipment which may require specialized racks or dedicated floor space. ICS
typically does not co-locate monitors (CRT displays) at the facility and
provides Customer with the use of a monitor to access their system during
visits to the facility. ICS does not accept Customer supplied UPS's or power
conditioning equipment, and all power supplied to Customer equipment at the
facility is 120V AC/60Hz, unless special arrangements are made with ICS prior
to delivering equipment to be co-located.
B) ICS provides all cabling to connect Customer's equipment to the facility's
power supply systems, LAN or Internet routers or ISDN circuits. Each primary
systems component (server, router) colocated at the facility is charged a
monthly fee. The fee charged is for the physical space allocated to mount or
place Customer's equipment at the facility, the conditioned power supplied to
Customer's equipment through an on-line UPS, emergency standby power supplied
through diesel powered generator, and HVAC of all equipment rooms located at
the facility.
7. Fault Isolation and Problem Resolution
A) ICS maintains a 24 hour hotline for reporting problems. When a problem is
encountered ICS will work to isolate the problem starting from the ISDN
services connection to Customer's co-located equipment at the center to
determine where the problem exists. If the problem is determined as any part
or function of the ISDN service circuit at the facility, ICS will immediately
commence emergency repair operations to resolve and correct the problem, and
will keep Customer appraised regarding the progress and expected completion
time of the repair or resolution of the problem. If Customer supplied
co-located equipment is determined as the cause of the problem ICS will advise
Customer of the problem and will provide telephone support and testing
functions to assist Customer in resolving the problem. If Customer has
arranged with ICS to maintain spare parts or hot spare equipment on site, ICS
will coordinate with Customer any equipment repair or replacement procedure
which can reasonably be expected to be performed at the facility. ICS may also
request that Customer authorizations be transmitted by telephone or through
Customer representatives visiting the facility in response to an emergency
before commencing extraordinary repair procedures on Customer's equipment.
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B) If ICS supplied and maintained co-located equipment is determined as the
cause of the problem ICS will immediately commence operations to repair the
equipment or resolve the problem. ICS will advise Customer of the problem and
will provide Customer with the expected completion time for the repair or
resolution of the problem.
8. Site Security
ICS maintains a secure facility and limits visits to the facility by Customer
personnel to those individuals indicated in advance by Customer as authorized
to visit the facility. There are no unsupervised visits permitted at this
facility. Except for instances when Customers authorized personnel are
visiting the facility in response to an emergency, ICS requires that all
visits be scheduled at least two hours in advance and limited to the hours
between 8:00 AM to 6:00 PM, Monday through Friday. All Customer equipment that
is co-located at the facility must be logged into and out of the facility, and
ICS will record the model, description and serial number of all Customer
equipment moved in or out of the facility.
9. INSURANCE
ICS carries insurance for coverage against theft or physical damage to
Customer's equipment while collocated at the facility. ICS does not provide
any insurance covering loss of use of damaged equipment, lost or damaged data,
lost or damaged application or operating system software or lost revenues due
to theft or damage of Customer equipment located at the facility. Unless
special arrangements are agreed to by Customer and ICS, insurance is limited
to $30,000.00 per Customer, per occurrence. ICS does not warrant that any
claim for damage to Customers equipment will be accepted by ICS's insurance
underwriters.
10. GENERAL
A) THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED UNDER THE LAWS OF THE
STATE OF NEW YORK, WITHOUT GIVING EFFECT TO ITS CONFLICTS OF LAW PRINCIPLES.
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B) If any portion of this Agreement is found to be invalid or unenforceable,
the remaining portions shall remain in effect and the parties will begin
negotiations for a replacement of the invalid or unenforceable portion.
C) ICS's performance obligations under this Agreement shall be solely to
Customer and not to any third party. Other than as expressly set forth herein,
this Agreement shall not be deemed to provide third parties with any remedy,
claim, right of action, or other right.
D) No change, modification, or waiver of any of the terms of this Agreement
shall be binding unless included in a written agreement and signed by both
parties.
E) THIS IS THE ENTIRE AGREEMENT BETWEEN THE PARTIES WITH RESPECT TO THE
SERVICES PROVIDED HEREUNDER AND IT SUPERSEDES ALL PRIOR AGREEMENTS, PROPOSALS,
REPRESENTATIONS, STATEMENTS, OR UNDERSTANDINGS, WHETHER WRITTEN OR ORAL,
CONCERNING SUCH SERVICES.
ICS CUSTOMER
By: /s/ By: /s/
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(Authorized Signature) Date 11/20/97 (Authorized Signature) Date
Xx. Xxxx X. Buntzmann Xxxxxx Xxxxx
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(Typed or Printed Name) (Typed or Printed Name)
Chairman + CEO C.E.O.
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(Title) (Title)
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ICS NETWORK SYSTEMS EQUIPMENT COLLOCATION AND SERVICES AGREEMENT
ATTACHMENT A Services Description and Quotation
Product Description Item Qty Unit Cost Extended Recurring Install/
Monthly Activation
AT&T ISDN PRI T1 1 14 589.00 8,246.00 8,246.00
1.54 mb/s Circuit
Monthly Charge for 36
month term includes a
total of 5 D Channels
and 403 B Channels
PRI Circuit Install/ 2 14 607.14 8,500.00 8,500.00
Activation
Collocation of 2 Accord 3 2 500.00 1,000.00 1,000.00 NC
MCU's
Includes 1 2' x 7'
Mounting rack
Monthly Charge
Collocation of 4 1 500.00 500.00 500.00 1,200.00
1 CUCEEME Server in
same rack as item 3
Monthly Charge
ICS Network Systems CUSTOMER
By: /s/ By: /s/
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(Authorized Signature) Date (Authorized Signature) Date 11/20/97
Xxxxxx Xxxxx Xx. Xxxx X. Buntzmann
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(Typed or Printed Name) (Typed or Printed Name)
C.E.O. Chairman + CEO
----------------------------- ----------------------------
(Title) (Title)
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