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EXHIBIT 10.49
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Note: Certain material, indicated by three asterisks (***), has been
omitted from this document, pursuant to a request for confidential
treatment filed with the Securities and Exchange Commission. The omitted
material has been filed separately with the Securities and Exchange
Commission.
This ISP Agreement (together with the Schedules attached hereto, as
modified and supplemented from time to time, the "Agreement") is made and
entered into as of August 2, 1999 by and between NavlNet, Inc., a Delaware
corporation (".NaviNet"), and USURF America, Inc. (the "ISP"). Each of
NaviNet and ISP is a "Party"' and collectively are the "Parties" to this
Agreement.
WHEREAS, NaviNet is in the business of providing, certain data services
described in Section 2,1(a) below; and
WHEREAS, ISP desires to receive such data services from NaviNet and NaviNet
desires to provide such data services to ISP;
NOW, THEREFORE, in consideration of the premises. contained herein and for
other good and valuable consideration, the receipt and sufficiency of
"'hich is hereby acknowledged, the Parties hereby agree as follows:
1 DEFINITIONS
1.1 Definitions. Terms not otherwise defined herein shall be defined and
construed in accordance with the Communications Act of 1934, as amended,
and otherwise as such terms are commonly used in the telecommunications
industry.
2 UNDERTAKING
2.1 Obligations of NaviNet.
(a) Data Services. As of 10 days from the In-Service Date (as defined in
Schedule A), NaviNet shall, subject to the conditions set forth herein, (i)
aggregate all incoming calls from End Users (as defined herein), (ii)
convert data traffic to Transmission Control Protocol/Internet Protocol
("TCP/IP") format and (iii) route data traffic between the End User and ISP
or Internet. "End User" shall mean each subscriber of the ISP who logs on
and whose data traffic is routed through a NaviNet point of presence
("NaviPOP").
(b) Log-in Limitation. In the event that an End User attempts to log in to
the NaviNet network with a user name already in use on the network, NaviNet
shall transmit data traffic to and from multiple log-in locations and treat
each log-in as a unique End User for payment purposes.
(c) Technical Support. NaviNet shall operate a toll-free number tor
technical support and service requests. Such telephone assistance shall be
available to ISP, 24 hours per day, 7 days per week, for each day of the
year and shall be prov1ded by a qualified technician. Such numbers shall
be solely for the use of ISP and not for the use of End User. NaviNet
shall designate a NaviNet Account Manager to respond to general service
inquiries.
(d) Web Page. NaviNet shall provide ISP with access to a customized
NaviNet web page which shall provide information including real-time
network data and customer management reporting.
2.2 Obligations of ISP
(a) Equipment. Prior to the In~Service Date, ISP shall install such
equipment as specified in Schedule A, in accordance with the technical
specifications set forth therein.
(b) Compensation. ISP shall pay all sums arising under this Agreement in
accordance with the requirements set forth herein.
(c) Reporting Requirement. No later than seven (7) days following the
first of every month, ISP shall provide NaviNet in writing a forecast of
the maximum monthly total of anticipated End Users at each NaviPOP for each
of the succeeding three months.
(d) End Users. ISP shall inform each End User in writing of the policy set
forth in Section 2.1(b) and shall require End Users to adhere to the
Acceptable Use Policy (as defined in Section 15.1) as a condition of
receiving service.
3. TERM
3.1 The Agreement shall be effective as of the date first written above.
The initial "Term" of the Agreement shall be for three (3) years from the
In-Service Date. Thereafter, the Agreement will automatically renew for
additional one-year terms, unless either Party notifies the other in
writing of its intention not to renew the Agreement at least ninety (90)
days prior to the expiration of the then current Term.
4. CERTAIN FEES
4.1 Monthly User Fees. Each month, subject to the conditions set forth
herein, ISP shall pay NaviNet a "User Fee". Such fee shall be calculated
by multiplying the total number of End Users counted by the NaviNet
authentication server in each month (such number, the "End User Count" or
"EUC") by the applicable dollar amount set forth in Schedule E (the "Fee
Per End User"). Subject to 2.1(b), the NaviNet authentication server shall
count each End User who logs on with a unique user name during any calendar
month as one End User, regardless of the number of times such End User has
logged on during such month and regardless of the location of such End User.
4.2 Minimum End User Requirement.
(a) Notwithstanding Section 6.3 or any other provision of this Agreement,
for the month beginning March 1, 2000, and for the remainder of the term,
ISP shall pay NaviNet for a minimum EUC of ***, even if the EUC falls below
such number (as relevant, such EUC, "Minimun EUC").
(b) At any time during the term, ISP may give NaviNet notice (the
"Commitment Notice") of its desire to raise the Minimum EUC to a level that
would qualify it for a reduction in the applicable Fee Per End User,
according to Schedule E. In such event, the User Fee shall be adjusted
such that the Fee Per End User charged for the entire actual EUC shall be
the Fee Per End User specified in Schedule E for the Minimum EUC set forth
in the Commitment Notice; provided, however, that in the event that the
actual EUC exceeds the EUC range containing the Minimum EUC in Schedule E,
the User Fee for such excess number of End Users shall be calculated using
the Fee Per End User specified in Schedule E for the actual EUC.
Notwithstanding the foregoing, during the calendar month in which the
Commitment Notice is delivered and for two calendar months thereafter, the
User Fee shall equal the actual EUC multiplied by the Fee Per End User set
forth in Schedule for the Minimum EUC regardless of whether actual EUC is
less than the Minimum EUC; thereafter, the User Fee shall be based on an
EUC of not less than the Minimum EUC set forth in the Commitment Notice, as
set forth in this Section 4.2(b). ISP's rights under this Section 4.2(b )
may be subject to prior approval of the capacity expansion by NaviNet
pursuant to Section 6 of this Agreement.
4.3 Installation Fee. ISP shall pay NaviNet an "Installation Fee." Such
fee shall equal $*** per End User and shall be levied for each new End User
the first time that such End User logs on with a unique user name.
4.4 Late Fees. All charges arising under this Agreement that remain unpaid
by the due date specified in Section 5.1 are subject to interest thereon
from the due date at the maximum rate permitted by law up to 1.5% per
month, calculated pro rata for each day after the due date until the date
of payment.
4.5 Fee Adjustment. During the initial, term, NaviNet shall not increase
fees set forth herein, unless such increase is mandated by changes in laws,
regulations or governmental rulings or necessitated by any such changes
which prevent NaviNet from receiving the material benefit of the contract.
During the Term, NaviNet shall provide at least sixty (60) days advance
written notice to ISP of such fee increase.
5 PAYMENT AND BILLING AND SERVICE ORDERS
5.1 Payment Date. Unless otherwise agreed to in writing by the Parties, ISP
shall pay sums owing under this Agreement by check within forty (40) days
from the date of written invoice from NaviNet.
(a) Invoice Period. NaviNet will send ISP a monthly invoice reflecting the
charges incurred during the prior Month at each NaviPOP. For purposes of
this Agreement, a "Month" shall mean the period beginning at 12:00:00 a.m.,
Local Time, on the first day of each calendar month and ending at 11:59:59
p.m., Local Time, on the last day of each calendar month. "Local Time"
refers to the timie in each time zone where a given NaviPOP is located.
Any calls that begin in one Month and conclude in the following Month shall
be invoiced to the later Month. Failure by NaviNet to send a monthly
invoice shall not constitute a default or waiver by NaviNet of any of its
rights under this Agreement.
5.2 Billing Disputes. If ISP in good faith disputes an invoice rendered by
NaviNet, ISP may withhold payment of the disputed amount provided ISP gives
written notice of the disputed charge within fifteen (15) days prior to the
due date specified in Section 5.1, and pays any undisputed charges as set
forth in this Agreement. No late fees will be assessed on disputed charges
unless and until it is determined that such charges were validly invoiced.
The le Parties shall cooperate with each other to resolve any billing
dispute expeditiously, If the Parties are unable to resolve a billing
dispute within ninety (90) days from the due date, either Party may then
invoke the arbitration provisions of Section 13. The party prevailing in
any such arbitration shall be entitled to reimbursement for reasonable
expenses (as determined by the arbitrator), including reasonable legal
fees, incurred in connection with such arbitration proceedings.
5.3 Service Orders. Prior to receiving service from NaviNet, ISP must
submit NaviNet's Service Order Form describing the initial coverage and
capacity required by ISP. The Service Order Form is subject to the terms
and conditions contained herein.
6 VOLUME AND CAPACITY REQUIREMENTS
6.1 Capacity Expansion Request. NaviNet's obligation to provide service
under this Agreement is contingent on the availability of capacity at each
NaviPOP. Therefore, the Parties have set forth below certain approval
procedures and penalties which are intended to encourage ISP to notify
NaviNet of anticipated variations in the EUC at any NaviPOP from month to
month. THEREFORE, NOTWITHSTANDING ANYTHING HEREIN TO THE CONTRARY, IF AT
ANY TIME AFTER MARCH 1, 2000, THE NUMBER OF END USERS AT ANY NAVIPOP AT ANY
TIME EXCEEDS THE PREVIOUS MONTH'S EUC BY MORE THAN *** AND SUCH INCREASE
HAS NOT BEEN PREAPPROVED IN ACCORDANCE WITH THIS SECTION, NAVNET MAY, IN
ITS SOLE DISCRETION, BLOCK SERVICE TO THE ADDITIONAL END USERS IN EXCESS OF
*** OVER THE PREVIOUS MONTH'S EUC, OR CHARGE A PREMIUM FOR SUCH END USERS
AS SET FORTH IN SECTION 6.2, AND IN THE EVENT THAT NAVINET HAS NOT BLOCKED
SERVICE TO SUCH END USERS, ISP AGREES TO PAY FOR SUCH END USERS AS SET
FORTH IN SECTION 6.2.
(a) If lSP seeks to increase the number of End Users at any NavjPOP over
the previous month's EUC at such NaviPOP by less THAN or equal to ***, no
preapproval is required under this Agreement.
(b) If ISP seeks to increase the number of End Users at any NaviPOP over
the previous month's EUC by more than ***, ISP shall request in writing
authorization for increased capacity from NaviNet. Such request shall
state the aggregate capacity requested by ISP (the "Requested End User
Count") and shall set forth the month in which the increased capacity is
required. Upon receipt of such request, NaviNet, in its sole discretion,
shall approve or reject such request in writing. If NaviNet approves such
request, NaviNet shall provide such increased service at the volume level
specified in the month indicated to ISP in writing.
6.2 Capacity Fees. If NaviNet has not specifically authorized an increase
in capacity in accordance with Section 6.1(b) and the number of End Users
at any time exceeds the previous month's EUC by more than ***, and provided
NaviNet does not block service to such additional End Users, ISP shall pay
two times the applicable Fee Per End User for the number of End Users in
excess of the previous month's EUC plus ***. Such fees shall be in
addition to and not in lieu of fees set forth in Section 4.
6.3 Capacity Reduction Notification. Notwithstanding the provisions of
Section 4, in no event shall the Minimum EUC for any month during the Term
be less than eighty-five percent (85%) of the actual EUC for the
immediately preceding month.
7 CONFIDENTIAL AND PROPRIETARY INFORMATION
7.1 (a) For the purposes of this Agreement, "Confidential Information"
shall mean information conveyed to the other Party in any form, including
but not limited to processes, technology, know-how, drawings, reports,
models, patent applications, technical or product specifications, pricing
information, the terms and conditions of this Agreement and computer
hardware and software. In addition, the terms and provisions, but not the
existence, of this Agreement shall be deemed Confidential Information and
may be disclosed only in accordance with the terms of this Section 7. Each
Party agrees to maintain in confidence and not to disclose to any third
party Confidential Information without the prior written consent of the
other party. A Party receiving Confidential Information shall (i) use
Confidential Information only when necessary to perform its obligations
under this Agreement, (ii) maintain adequate procedures to preserve the
integrity of Confidential Information, which are at least equal to the
procedures such Party would use to protect its own Confidential
Information, (iii) disclose Confidential Information only to those of its
respective employees and consultants having a need to know such
Confidential Information in carrying out the duties of each Party under
this Agreement and then only if such employees and consultants have been
expressly advised of the requirements of this Section 7 and (iv) upon
termination of this Agreement immediately return all Confidential
Information without retaining copies thereof. Notwithstanding Section 13 of
this Agreement, either Party may seek injunctive relief to enforce this
Section.
(b) The provisions of this Section 7 shall not apply to the extent that
such Confidential Information was: (i) in the public domain prior to
disclosure, or becomes so known subsequent to such disclosure through no
fault of the receiving Party, (ii) received by the receiving Party from a
third party not under an obligation to the owner of such information not to
disclose it, or (iii) approved for release by prior written consent of the
disclosing Party.
(c) The provisions of this Section 7 shall not prevent the disclosure of
the terms of this Agreement by either Party to investors or investment
bankers who sign a non-disclosure agreement, where notice and a copy of
such agreement is provided to the other Party no later than seven (7) days
following such disclosure.
7.2 Proprietary Information. Each party agrees to refrain from obtaining or
attempting to obtain any industrial or intellectual property rights that
are based in whole or in part on Confidential Information received by it.
8 EVENTS OF DEFAULT
The following shall constitute an "Event of Default" under this Agreement:
8.1 ISP may be deemed to be in default of its obligations under this
Agreement if: ISP fails to perform or fulfill any of its obligations under
this Agreement, including failure to abide by the decision of the
arbitrator in accordance with Section 13, and such failure is not remedied
within thirty (30) days after written notice thereof from NaviNet; provided
however, that NaviNet may in its sole discretion extend such thirty (30)
day period. Any such extension must be in writing.
8.2 NaviNet may be deemed to be in default of its obligations under this
Agreement if: NaviNet fails to perform or fulfill any of its obligations
under this Agreement, including failure to abide by the decision of the
arbitrator in accordance with Section 13, and such failure is not remedied
within thirty (30) days after written notice thereof from ISP; provided
however, that ISP may in its sole discretion extend such thirty (30) day
period. Any such extension must be in writing.
9 TERMINATION
9.1 This Agreement may be terminated prior to the expiration of the Term:
(a) by either party in the Event of Default by the other Party;
(b) by either party in the event of any event set forth in Section 10.1
which remains in effect for more than thirty (30) days;
(c) by either Party if any law, regulation or governental ruling, or
interpretation or implementation thereof by a competent court or regulatory
authority, prevents that Party from receiving a material benefit of the
contract.
9.2 Any termination shall be effective upon written notice by the
terminating Party to the non-terminating Party in accordance with Section
16.9.
9.3 Upon termination of this Agreement, ISP shall remain liable to NaviNet
for (i) all payabIes outstanding, (ii) any uninvoiced User Fees and (iii)
the User Fee for the Minimum EUC for the remainder of the Term.
10 LIMITATION Of LIABILITY
10.1 Force Majeure. Neither NavtNet nor ISP shall be liable in any respect
for any failure of performance hereunder, if such is due to acts of God,
fire, explosion, vandalism, cable cut, storm or other similar occurrence,
any law, order, regulation, direction, action or request of the United
States government or of any other government or of any civil or military
authority, national emergencies, insurrections, riots, wars, strikes,
lockouts or work stoppages or other labor difficulties, supplier failures
(including failure of performance of any carrier), shortages, breaches or
delays, or preemption of existing service in compliance with a final rule
or regulation of the Federal Communications Commission or a court of
competent jurisdiction.
10.2 Disclaimer of Warranties. Except as expressly set forth in this
Agreement, NaviNet makes no warranties, representations or agreements,
written or oral, express or implied, either in fact or by operation of law,
including warranties of merchantability and fitness for a particular purpose.
10.3 Limitation of Liability. Neither NaviNet nor ISP shall be liable to
the other Party nor any other person, firm or entity for any incidental,
indirect, special, consequential, punitive or reliance damages of any
nature whatsoever regardless of the foreseeability thereof (including, but
not limited to, any claim from any client, customer, third party or patron
for loss of services, lost profits or lost revenues) arising under or in
connection with this Agreement, or the performance hereunder, arising from
any breach, or partial breach, or potential breach of the provisions of
this Agreement, or arising out of any act or omission by either NaviNet or
ISP, their respective agents, employees or affiliates whether based on
breach of contract, breach of warranty, negligence or any other theory of
liability. ISP's sole and exclusive remedy for any breach of this
Agreement shall be as set forth in Section 11.
11 PERFORMANCE STANDARDS
11.1 Service Interruption Credits. NaviNet shall grant a credit allowance
(a "Service Credit") for Service Interruption (as defined in Section
11.1(b)) to ISP.
(a) Credit Intervals. Service Credits shall be calculated and credited in
fifteen (15) minute intervals beginning upon notification by ISP to the
toll-free NaviNet number referenced in Section 2.1(c) and ending upon
restoration of service (such interval, "Downtime"), provided however, no
Service Credit shall be granted for Service Interruption lasting less than
sixty (60) minutes in duration. For example, if the Service Interruption
has a duration of 1 hour and 35 minutes, the Downtime is 1.5 hours.
(b) Service Interruption. "Service Interruption" is deemed to occur if
there is a "Total Service Interruption" (ISP is unable to receive or
transmit any traffic from the NaviPOP) or a "Partial Service Interruption"
(ISP is able to receive traffic from one or more, but not all, NaviPOPs)
which is not due to (i) the negligence of or acts or omissions of ISP or
its agents, (ii) failure of power, equipment or circuits provided by ISP or
its agents, (iii) scheduled maintenance or repairs or (iv) any force
majeure event set forth in Section 10.1.
(c) Total Service Interruption. In the event of a Total Service
Interruption, ISP shall receive a Service Credit equal to the previous
month's billable EUC times the Current Month Fee Per End User (as defined
below) times the quotient of the Downtime divided by 720 hours per month.
The "Current Month" is the month during which the Service Interruption
occurs. The "Current Month Fee Per End User" if ISP has delivered a
Commitment Notice, is the Fee Per End User determined pursuant to Section
4.2(b) and, if ISP has not delivered a Commitment Notice, is the weighted
average of the Fee Per End User paid by ISP for the Current Month.
(d) Partial Service Interruption. In the event of a Partial Service
Interruption, ISP shall receive a Service Credit equal to the previous
month's billable EUC at each of the interrupted NaviPOPs times the Current
Month Fee Per End User times the quotient of the Downtime at the respective
NaviPOP divided by 720 hours per month.
11.2 Modem Availability Credits. If NaviNet does not meet the Modem
Availability Minimum (as defined below), NaviNet shall grant a credit
allowance (a "Modem Credit" and, together with the Service Credits, the
"Credits") to ISP as set forth below. ISP's sole remedy in the event that
NaviNet fails to meet the Modem Availability Minimum shall be to receive
Modem Credits.
(a) Modem Availability Claim. If ISP believes that NaviNet has failed to
meet the Modem Availability Minimum, ISP may submit notice or a claim (a
"Claim") to NaviNet, which notice shall specify the date and hour of the
failure, as well as the NaviPOP to which such failure relates (the "Subject
NaviPOP").
(b) Calculation of Modem Credit. If NaviNet determines that its modem
ports at the Subject NaviPOP had available capacity during the hour in
which the Claim arose (the "Claim Hour"), no Modem Credits shall be owing
to ISP with respect to such Claim. If NaviNet determines that its modem
ports at the Subject NaviPOP were at capacity during the Claim Hour, ISP
may be entitled to a Modem Credit, determined as set forth below.
Step 1: If the number of End Users concurrently logged into the NaviNet
network through the Subject NaviPOP during the Claim Hour (the "Claim Hour
End User Maximum") is less than the average number of End Users
concurrently logged into the NaviNet network through the Subject NaviPOP
during the Claim Hour for the seven (7) days immediately preceding the date
on which the Claim arose (the "Average End User Maximum"), then proceed to
Step 2. If not, NaviNet shall not owe any Modem Credits to ISP as a result
of the Claim.
Step 2: If the total number of Unsuccessful Sessions (as defined below)
during the month in which the Claim arose (the "Claim Month") is less than
or equal to the Modem Availability Minimum, NaviNet shall not owe any Modem
Credits to ISP as a result of any Claim asserted during such Claim Month.
If the total number of Unsuccessful Sessions during the Claim Month is
greater than the Modem Availability Minimum, NaviNet shall provide Modem
Credits to ISP equal to the product of multiplying (a) the Current Month
Fee Per End User by (b) the number obtained by subtracting the Modem
Availability Minimum from the total number of Unsuccessful Sessions during
the Claim Month.
"Modem Availability Minimum" is one percent (1%) of the aggregate of (a)
the total Successful Sessions for the Claim Month and (b) the total number
of Unsuccessful Sessions during the Claim Month.
A "Successful Session" occurs whenever an End User logs onto a NaviPOP .
"Unsuccessful Sessions" means the Average End User Maximum minus the Claim
Hour End User Maximum.
11.3 Application of Credits. Any Credits earned by ISP for any calendar
month shall appear on the invoice for the month immediately subsequent
thereto; provided, however, that in no event shall Na\liNet be liable for a
Credit in excess the User Fee invoiced in such month.
11.4 Waiver of Credits. If ISP should fail to comply with the provisions
of Sections 2.2(c) or 6.1 at any time, ISP shall be deemed to have
waived-its right to receive any Credits to which it may have been entitled
for the month during which the failure occurs.
12 INDEMNIFICATION
12.1 ISP shall indemnify, hold harmless and defend NaviNet, its directors,
officers, agents, employees and/or representatives from and against any and
all claims, demands, causes of action, losses, expenses or liabilities,
including reasonable attorney's fees. on account ofin.iury or death of any
person or loss of or damage to any and all property arising, directly or
indirectly, out of the acts or omissions of ISP, any subcontractor,
director, officer, agent, employee and/or representative of each of them,
in the performance of any obligations arising under this Agreement, except
to the extent such cause of action, loss, expense or liability is caused
solely by the gross negligence or willful misconduct of NaviNet.
12.2 NaviNet shall indemnify, hold hannless, and defend ISP, its directors,
officers, agents, employees and/or representatives from and against any and
all claims, demands, causes of action, losses, expenses or liabitities,
including reasonable attorney's fees, on account of injury or death of any
person or loss of or damage to any and all property arising, directly or
indirectly, out of the acts or omissions of NaviNet, any subcontractor,
director, officer, agent, employee and/or representative of each of them,
in the performance of any obligations arising under this Agreement, except
to the extent such cause of action, loss, expense or liability is caused
solely by the gross negligence or willful misconduct of ISP.
13 DISPUTE RESOLUTION
13.1 Any dispute arising out of or relating to this Agreement shall be
settled by arbitration by an arbitrator chosen by NaviNet and approved by
ISP and in accordance with the rules of the American Arbitration
Association. The decision of the arbitrator shall be final and binding.
Judgment upon the award rendered by the arbitrator may be enforced by any
court with jurisdiction. All such arbitration shall be conducted at a
location chosen by NaviNet. Pending resolution of the dispute, the Parties
agree to continue to perform all obligations arising under this Agreement.
14 SERVICE MARKS
14.1 NaviNet grants ISP a non-exclusive, non-transferable license to use
the "NaviNet" name as well as the service marks set forth in Schedule B.
ISP grants NaviNet a non-exclusive, non-transferable license to use the
"USURF America, Inc." name as well as the service marks set forth in
Schedule C. Such license is intended solely for the purpose of advertising
and marketing ISP's alliance with NaviNet without exposing either Party to
claims for service xxxx or trade xxxx infringement. Each Party shall retain
exclusive ownership of all service marks and trade marks associated with
its business. Either party may at any time revoke such license granted
hereby to the other Party.
14.2 Each Party agrees to obtain the oral or written approval of the other
Party prior to: (i) the publication, dissemination or transmission of any
promotional material containing the name or service marks of the other
party and (ii) the use of tbe name or service marks of the other Party in
conjunction with any other names or service marks.
15 ACCEPTABLE USE POLICY
15.1 ISP shall maintain a written policy which is consistent with and
includes all of the material terms of the policy attached hereto as
Schedule D, including without limitation, a prohibition against unlawful
use of its network and requirement of cooperation with law enforcement
officials in the pursuit of illegal uses of its network (such policy,
"Acceptable Use Policy"). ISP shall deliver in writing such Acceptable Use
Policy to NaviNet within thirty (30) days following the execution of this
Agreement and shall deliver in writing to NaviNet all material changes made
to such Acceptable Use Policy within thirty (30) days of such changes. ISP
shall require all End Users to adhere to the Acceptable Use Policy as a
condition of receiving ISP service. Failure of an End User to comply with
such Acceptable Use Policy shall be grounds for termination of End User's
contract with ISP at the request of NaviNet. Notwithstanding anything
herein to the contrary, NaviNet may block any data traffic to or from End
Users, which appear to violate such Acceptable Use Policy.
16 MISCELLANEOUS
16.1 Number Portability. Notwithstanding the availability of number
portability in a particular jurisdiction, the Parties agree that any line
numbers assigned to ISP in connection with service provided under this
Agreement are provided solely for the use of NaviNet services. Upon
termination of this Agreement, ISP shall be prohibited from using any line
numbers assigned to it by NaviNet.
16.2 Entire Agreement; Modifications in Writing. This Agreement constitutes
the entire Agreement between ISP and NaviNet and supersedes all prior
agreements and undertakings, whether written or oral, concerning the
subject matter of this Agreement. No amendments or modifications to the
printed terms and provisions of this Agreement will be valid or binding
unless such amendments or modifications are agreed to in writing and signed
by both Parties.
16.3 Assignability. Neither Party may assign this Agreement or any right or
obligation hereunder without the prior written consent of the other Party,
which consent shall not be unreasonably withheld; provided, however, that
NaviNet may assign this Agreement to any entity controlled by or under
common control with NaviNet without seeking ISP's consent and ISP's consent
shall not be required in connection with the sale or other transfer of all
or substantially all of the assets of or equity interests in NaviNet.
16.4 Waiver. The failure of either Party to give notice of default or to
enforce or insist upon compliance with any of the terms or conditions of
this Agreement shall not be construed as a waiver thereof or of any other
term or condition of this Agreement.
16.5 Choice of Law. This Agreement shall be governed by and interrupted in
accordance with the laws of the State of New York, without regard to the
choice of law rules thereof.
16.6 Relationship Between the Parties. Except as expressly stated herein,
neither NaviNet nor ISP is an agent, employer, partner. contractor or joint
venturer of the other.
16.7 Severability. In the event any portion of this Agreement is found to
be invalid or nullified, it shall not affect the validity of any other
provision of this Agreement.
16.8 Survivability. The terms and provisions contained in this Agreement
that by their sense and context are intended to survive the performance or
termination thereof by the Parties hereto shall so survive the completion
of performance or termination of this Agreement, including without
limitation provisions for indemnification and the making of any and all
payments due hereunder .
16.9 Notices. Notices to be given to any Party under this Agreement shall
not be effective unless in writing and hand-delivered or mailed by
registered or certified mail to said party at its address as set forth
below, or to such other address as has been designated by the other party
in accordance with this Section 16.9.
If to NaviNet:
NaviNet, Inc.
000 Xxxxxxx Xxxxxx
Xxxxxxx, XX 00000
Attention: X .X. Xxxxxx
If to ISP:
USURF Amenca, Inc.
0000 Xxxxxxxx Xxxx Xxxx
Xxxxx Xxxxx, XX 00000
Attn: Xxxxx X. Xxxxxx
Notices shall be effective on the date delivered, if by hand, or if by mail
on the third business day after the date mailed.
16.10 Headings. Descriptive headings in this Agreement are for convenience
only and shall not affect the construction of this Agreement.
16.11 Counterparts. This Agreement may be executed in multiple
counterparts, each of which shall be deemed an original and all of which
together shall constitute one and the same document.
16.12 Year 2000 Compliance. The "Year 2000 Problem" refers to the
potential inability of some computer software to appropriately treat
date-related information or functions involving dates of January 1,2000 and
thereafter. The Parties make the following representations and warranties,
to the exclusion of all other representations and warranties made in this
Agreement, with respect to the Year 2000 Problem:
(a) NaviNet represents that is has made and will continue to make
commercially reasonable
efforts to ensure that the computer systems it uses or intends to use in
providing the NaviNet Data Services will not be materially impaired by the
Year 2000 Problem, provided, however, that ISP acknowledges and agrees that
NaviNet is an integrator of systems and services provided by other
entities, and NaviNet can neither modify the products and services of such
entities nor guarantee that they will function without adverse effect from
the Year 2000 Problem. NaviNet will periodically inform ISP of the steps
NaviNet is taking to ensure against adverse effects on the NaviNet Data
Services cause by the Year 2000 Problem. Breach of the foregoing
representations and obligations shall constitute an Event of Default under
Section 8.2, and ISP's sole and exclusive remedy for such Default shall be
termination in accordance with Section 9.1. ISP's sole and exclusive
remedy for any service interruption or impairment caused by the Year 2000
Problem shall be as set forth in Section 11.1.
(b) ISP represents that it has been given ample opportunity to make inquiry
into the programming and operational aspects of any and all computer
systems that it utilizes, or intends to utilize, in its business
operations, and ISP hereby warrants that, as to such systems, ISP will make
reasonable efforts to ensure that the Year 2000 Problem will not materially
adversely affect ISP's business operations or performance under this
Agreement. Breach of the foregoing shall constitute an Event of Default
under Section 8.1, and NaviNet's sole and exclusive remedy for such Default
shall be termination in accordance with Section 9.1.
(c) It is expressly agreed that the indemnification contained in Section
12, including the limitations of liability referenced therein, shall apply
to any third-party claims arising out of a breach of the above Year 2000
Problem representations and warranties.
IN WITNESS WHEREOF, the Parties have executed and delivered this Agreement
as of the day and year first written above.
ISP
/s/ Xxxxx X. Xxxxxx
By: Xxxxx X. Xxxxxx
Title: Chief Executive Officer
NAVINET, INC.
/s/ X.X. Xxxxxx
By: X.X. Xxxxxx
Title: Chief Executive Officer
SCHEDULE A - FACILITIES AND EQUIPMENT
1. EQUIPMENT
1.1 ISP shall install the following equipment in accordance with the
specifications set forth herein.
(a) TBD Back-end TBD circuit(s) (optional); *
(b) Two (2} RADIUS server(s);
(c) TBD CSU/OSU device(s);
(d) TBD router port(s) of TBD type
* NaviNet recommends installation of Back-end circuit(s) in connection with
the use of the NaviNet
Data Services. If ISP elects not to install a Back-end circuit(s), it
shall so indicate below.
Back-end circuit(s) to be installed? Yes No X
2. IN-SERVICE DATE
2.1 Prior to August 15, 1999 (such date, the ''In-Service Date"), ISP
shall install and test in conjunction with NaviNet the equipment set forth
above and shall notify NavlNet that it is prepared to receive service.
SCHEDULE B - NAVINET SERVICE MARKS
(Show "NaviNet", "GeoDial ISP", "GeoDial" in their appropriate fonts)
SCHEDULE C - ISP SERVICE MARKS
(Show ISP Marks in their appropriate fonts)
SCHEDULE D - ACCEPTABLE USE POLICY
SCHEDULE E - FEE SCHEDULE
End User Count Fee Per End User Fee Per End User
Two Year Term Three Year Term
EUC less than or
equal to 5,000 $*** $***
5,000 less than EUC
less than or equal
to 10,000 $*** $***
10,000 less than EUC
less than or equal
to 25,000 $*** $***
25,000 less than EUC
less than or equal
to 50,000 $*** $***
50,000 less than EUC
less than or equal
to 100,000 $*** $***
EUC greater
than 100.000 $*** $***
(d) Example. If the aggregate EUC calculated by the NaviNet authentication
server is 10,100, the User Fee with a three year term is calculated as
follows: 10,100 x $*** = $***
