Exhibit 10.14
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.
PACNET RESELLER AGREEMENT
THIS AGREEMENT is made and entered into this 30th day of May, 1997, by and
between PacNet Inc., a Washington corporation with its principal office located
at 0000 Xxxxx Xxxxxx, Xxxxxxx, Xxxxxxxxxx 00000 (hereinafter "CARRIER"), and
Rocky Mountain Internet, Inc., a Delaware corporation, with its principal office
located at 0000 Xxxxxxxxxx Xxxxxx, Xxxxx 0000, Xxxxxx, Xxxxxxxx 00000
(hereinafter "RESELLER") for the purpose of establishing a sales representation
relationship between them.
WHEREAS, CARRIER is in the business of providing data communications services in
certain geographic market areas; and
WHEREAS, RESELLER has applied to CARRIER for the right to market, sell, and
distribute CARRIER's services to the general public; and
WHEREAS, both CARRIER and RESELLER recognize the compatible nature of their
individual goals in expanding competition in the services offered by CARRIER as
well as any services to be offered by RESELLER and the benefits which will
accrue to the public through the Parties' cooperation; and
WHEREAS, CARRIER has agreed to engage RESELLER pursuant to the terms and
conditions set forth herein.
NOW, THEREFORE, in consideration of the mutual promises, covenants and
warranties which appear below, and intending to be legally bound thereby, the
parties hereby agree as follows:
ARTICLE I
DEFINITIONS
Whenever used in this Agreement, as hereinafter defined, the following terms
shall have the respective meanings given to them in this Article I, unless the
context requires otherwise. Said terms also shall have the said meanings when
used in any exhibit, schedule, attachment or addendum hereto or in any document
made or otherwise delivered pursuant to this Agreement, unless the context
otherwise requires. Each said term defined in this Article I shall be deemed to
refer to the singular, plural, masculine, feminine or neuter as the context
required.
1.1 "Agreement" means this Agreement, as originally executed and as the
same may be amended, modified and supplemented from time to time by
exhibits, schedules, attachments or addendum executed in accordance
herewith.
1.2 "Assignment" means a sale, exchange, transfer or other disposition of
all or any portion of Party's rights and obligations hereunder.
1.3 "Affiliate" means any person who directly or indirectly, through one or
more intermediaries, controls, is controlled by or is under common
control with such specific
person. A person shall be deemed to control another person when such
controlling person has the power, directly or indirectly to cause the
direction of the management or policies of such person, whether through
the ownership of voting securities, by contact, agency or otherwise.
This term shall also include any person who, directly or indirectly,
through one or more intermediaries, has the contractual right or option
to acquire or vote more than ten percent of the voting interest of a
specific person.
1.4 "Business Day" means a day other than Saturdays, Sundays and legal
holidays.
1.5 "Customer" means an end-user of CARRIER's Services.
1.6 "Effective Date" means the date of last necessary signature hereto.
1.7 "FCC" refers to the Federal Communications Commission.
1.8 "Final Order" means an action by any applicable federal or state agency
or court as to which (i) no request for stay by the federal or state
agency or court of the action is pending, no such stay is in effect,
and if any deadline for filing any such request is designated by
statute or regulation, it has passed; (ii) no petition for rehearing or
reconsideration of the action is pending and the item for filing any
such petition has passed; (iii) the federal or state agency or court
does not have the action under reconsideration on its own motion and
the time for such reconsideration has passed, and (iv) no appeal to a
court, or request for stay by a court, or the federal or state agency's
or court's action is pending or in effect, and if any deadlines for
filing such appeal or request is designated by statute or rule, it has
passed.
1.9 "Host Connection" refers to connections from CARRIER network through to
the network of RESELLER.
1.10 "Party" refers to one or both of the parties to this Agreement, CARRIER
or RESELLER, as the context indicates.
1.11 "Person" means any general partnership, limited partnership,
corporation, joint venue, trust, business trust, governmental agency,
cooperative, association, individual or other entity, and the heirs,
executors, administrators, legal representatives, successors and
assigns of such person as the context may require.
1.12 "Proprietary Information" means information relating to the present or
future business activities and operations of CARRIER, RESELLER or their
respective subsidiaries, Affiliates, clients and consultants which is
marked as "Proprietary" or "Confidential". Proprietary Information
shall include, but not be limited to, all technical, marketing and
financial information relating thereto, any information relating to
other pricing methods, processes, financial data, lists, apparatus,
statistics, programs, research, development or related information, or
the results of the provision of Services performed by RESELLER under
this Agreement. Proprietary Information needs to be also marked as
"Proprietary
or Confidential" information.
1.13 "Services" or "CARRIER Services" refers to the data communications
services delineated in Schedule A hereto, to be resold hereunder by
RESELLER to the general public in certain geographic market areas.
ARTICLE II
UNDERTAKING OF THE PARTIES
2.1 Scope. RESELLER and CARRIER wish to set forth a standard of general
terms and conditions which will facilitate RESELLER's ability to
market, sell and distribute the Services within certain geographic
market areas.
2.2 Formation. CARRIER hereby agrees to provide RESELLER, and RESELLER
hereby agrees to accept use of certain CARRIER Services. The Services
are as set forth in Schedule A hereto and in any applicable tariffs.
The Schedule may be revised from time to time by CARRIER in accordance
with generally applicable changes in CARRIER's service offerings.
Services are provided pursuant to the PacNet Services Agreement to be
entered into by the parties, the terms of which are incorporated into
this Agreement by reference.
2.3 Authority of RESELLER. CARRIER hereby grants to RESELLER the
non-exclusive right to solicit orders from and enter into contracts
with Customers for the Services. This Agreement constitutes RESELLER as
a nonexclusive independent contractor only and not as CARRIER's general
or specific agent and does not create a joint venture or apply to
confer any status, power or authority upon RESELLER other than
expressly set forth herein. The scope of the RESELLER's authority is
specifically limited to the minimum authority necessary to perform the
duties accepted pursuant to this Agreement and RESELLER shall, to the
maximum extent not inconsistent with the provision hereof, control the
means, details, manner and method of allotment associated therewith.
RESELLER shall make no representations as to the policies and
procedures of CARRIER other than as specifically authorized by CARRIER
and shall be liable for any misrepresentation made by RESELLER with
regard to CARRIER's Services. RESELLER shall have no right to enter
into a contract on CARRIER's account or to bind CARRIER in any manner.
2.4 RESELLER's Authorizations. RESELLER shall secure and maintain at its
sole expense all licenses and permits required by federal, state or
municipal law or regulation for it and its employees, agents or other
representatives to ensure RESELLER's lawful performance of this
Agreement.
ARTICLE III
PAYMENT AND COLLECTION TERMS
3.1 Rates for Services. Subject to the following Sections of this Article
III, RESELLER will
be charged pursuant to Schedule B hereto for Frame Relay Services and
pursuant to Schedule C hereto for Private Line Services and pursuant to
Schedule D hereto for Internet Services. Schedules B, C & D may be
changed from time to time by CARRIER in accordance with these changes
in CARRIER's applicable tariffs, if any, or generally applicable
schedule of rates. In the event that the underlying carrier or provider
increases its rates for services used by CARRIER in providing Service
hereunder, CARRIER shall have the option to increase rates to RESELLER
upon 30 days prior written notice.
3.2 Minimum Commitment Periods. RESELLER understands and agrees that the
rates for Service are based upon an expected usage level and that,
absent this minimum usage CARRIER would be unable to offer the Services
at the rates given to RESELLER herein. In view thereof, RESELLER shall
have certain Minimum Commitment Levels for Service hereunder. RESELLER
shall have a six (6) month period, commencing on the Effective Date of
this Agreement, during which no Minimum Commitment Level shall apply.
Commencing on the seventh (7th) month after the Effective Date of this
Agreement and continuing thereafter, RESELLER's total monthly usage
revenue attributable to its Customer accounts shall equal or exceed a
Minimum Commitment Level of *** per month. CARRIER will have at its
sole option the right to terminate this Agreement under section 4.4 and
4.5.1 of this Agreement in the Minimum Commitment Level is not met as
specified herein.
3.3 Late Payment, Billing Disputes. Payment and billing disputes shall be
tendered in accordance with the provisions of the PacNet Services
Agreement to be entered into between the CARRIER and the RESELLER.
3.4 Creditworthiness. In addition to any other remedies available to
CARRIER, CARRIER may elect with ten (10) days prior written notice, in
its sole discretion, to cause start of service for Services applicable
to a Customer to be withheld or decline to accept a Customer if there
is a material change in RESELLER's creditworthiness or CARRIER may
condition the provision of Services on assurance of payment by RESELLER
or Customer which shall take the form of a deposit or similar assurance
as specified by CARRIER.
3.5 Sales Forecast. RESELLER will forecast quarterly sales objectives.
These objectives will not be considered by CARRIER as RESELLER's
contractual agreements.
ARTICLE IV
TERMS OF AGREEMENT
4.1 Effective Date; Renewal. This Agreement shall become effective upon the
Effective Date, and shall remain in effect for a period of three (3)
years unless otherwise terminated in accordance herewith. This
Agreement shall be automatically renewed thereafter for successive
periods of one (1) year or as otherwise agreed by the Parties. This
Agreement thereupon shall be terminated by either Party at the end of
the initial or then current renewal term upon written notice ninety
(90) days prior to the end of the then current
term.
4.2 Insolvency. Either Party may terminate this Agreement upon ninety (90)
days written notice to the other Party in the event of an admission by
the other Party of an inability to pay its debts, the entering in to by
the other Party of a composition or other arrangement with its
creditors, the appointment of a trustee or receiver, with or without
consent, for the other Party of all or any substantial portion of its
property, or the filing of a petition for relief by or against the
other Party under the Bankruptcy Code of any similar federal or state
statute (including moratorium laws); provided, however, that in the
case of an involuntary petition, there shall be no right of
cancellation hereunder unless such petition remains undismissed sixty
(60) days after the filing thereof.
4.3 Loss or Suspension of Operating Authority. This Agreement shall
terminate automatically and without liability or further obligation on
the part of either party to the other if, by Final Order, CARRIER loses
its authority to provide the Services as contemplated hereunder. If
such authority is suspended, this Agreement shall not terminate, but
shall be suspended until such time as CARRIER regains such authority.
If such authority is lost or suspended with regard to a portion of the
Services or service areas, then this Agreement shall terminate
automatically (in the case of lost authority) or be suspended (in the
case of suspended authority) with regard only to the Services or
service area concerned. The provisions of this Section 4.3 shall not be
construed to affect any liabilities which arise prior to the
termination or suspension hereunder, or which may later arise from the
Parties' activities during the term of this Agreement.
4.4 Events of Default. Aside from any other events of default set forth in
this Agreement, the following shall constitute an event of default
hereunder: (i) the failure by RESELLER to make any payments due to
CARRIER hereunder and continue failure to cure such default within a
period of ten (10) days after receiving written notice of such fault;
(ii) the violation by either Party hereto of any material term or
provision of this Agreement or the failure of either party hereto to
perform any of its material obligations hereunder and continued failure
to cure such default within thirty (30) days after receiving written
notice of such default; (iii) the misapplication by RESELLER of
CARRIER's services and continued failure to cure such default within
thirty (30) days after receiving written notice of such default; (iv) a
consistently poor payment record or other evidence of lack of financial
ability to perform and continued failure to cure such default within
thirty (30) days after receiving written notice of such default; (v)
any action that violates applicable federal or state law or regulation
or other unlawful act and continued failure to cure such default within
thirty (30) days after receiving written notice of such default; (vi)
the failure of RESELLER to abide by the terms of Sections 3.2, 3.3,
5.1, 5.2 and 7.4 hereof and continued failure to cure such default
within thirty (30) days after receiving written notice of such default;
or (vii) the willful or intentional violation by either Party hereto of
any term or provision of this Agreement.
4.5 Remedies.
4.5.1 Termination. Upon the occurrence of an event of default, as
defined in Section 4.4, the non-defaulting Party shall have
the right to terminate this Agreement upon thirty (30) days
written notice.
4.5.2 Customer Contracts. If RESELLER defaults in its performance
hereunder, as defined in Section 4.4, then CARRIER may, at its
option, and as consideration for CARRIER capital expenditures
in providing Service to RESELLER's Customers hereunder, enter
into direct contracts with Customers obtained hereunder and
xxxx such Customers directly, with no compensation being due
to RESELLER therefor.
4.5.3 Specific Performance. CARRIER shall have the right to enforce
the provisions of this Article IV by obtaining an injunction
or specific performance from any court of competent
jurisdiction.
4.5.4. Alternative Remedies. The remedies set forth herein are
cumulative and in addition to, and not in limitation of, other
remedies available at law or in equity. None of the remedies
specified in this Article IV for any default of breach of this
Agreement shall be exclusive.
ARTICLE V
CORPORATE IDENTITY
5.1 Trade Names and Trademarks. All trade names, trademarks and service
marks owned or employed by CARRIER, RESELLER or their respective
subsidiaries or Affiliates, shall remain the sole and exclusive
property of such Party, subsidiary or Affiliate, and such trade names,
trademarks and service marks shall not be used by the other Party
without the prior written consent of such Party, subsidiary or
Affiliate. The breaching Party shall immediately discontinue any use of
such marks and names upon Notice of such breach.
5.2 Advertising. CARRIER shall establish standards for all advertising,
promotional and customer training materials used or distributed by
RESELLER which relate to CARRIER's services. RESELLER may refer to
itself as an authorized reseller of CARRIER Services whenever it refers
to the services in promotional, advertising, or other materials. In
addition, RESELLER shall provide to CARRIER for its prior review and
written approval, all promotional, advertising, or other materials or
activity using or displaying CARRIER's name, Services or referring to
RESELLER as an authorized reseller of CARRIER services. Such review and
standards will be limited to factual matters, pertain to services
furnished by CARRIER and use of CARRIER's marks and name. RESELLER
agrees to change or correct, at RESELLER's expense, any such material
or activity which CARRIER, in its sole judgment, determines to be
inaccurate, misleading or otherwise objectionable.
ARTICLE VI
OPERATING DUTIES OF THE PARTIES
6.1 Customer Subscription and Service. RESELLER shall provide Customers
with applications for Services using pre-printed forms provided or
approved by the CARRIER. Such applications shall then be forwarded by
RESELLER to CARRIER within no more than three (3) business days after
execution. RESELLER agrees to comply with all of CARRIER's customer
service procedures regarding CARRIER's Services hereunder. CARRIER
reserves the right in its full discretion to decline to accept a
Customer contract solicited by RESELLER pursuant to its generally
applicable business criteria.
6.2 RESELLER's Representation; Contracts. RESELLER shall make no
representations, warranties, promises, understandings or agreements
concerning CARRIER and CARRIER's Services not approved in advance by
CARRIER. RESELLER may represent itself as a RESELLER of CARRIER's
Services.
6.3 Conduct of RESELLER.
6.4 CARRIER Responsibilities.
ARTICLE VII
LIABILITY AND INDEMNIFICATION
7.1 RESELLER's Employees. All persons employed by RESELLER to perform
RESELLER's duties under this Agreement are employees and agents of
RESELLER. RESELLER shall be solely responsible for the acts and
omissions of its employees and agents and shall have sole
responsibility for their supervision, direction and control. RESELLER
shall comply with all applicable laws regarding withholding and payment
of all income taxes, social security taxes, unemployment insurance and
worker's compensation and disability benefits as well as those
regarding equal employment opportunities and safety of the workplace
insofar as such concerns the subject matter hereof.
7.2 Right to Conduct Other Business. Each Party hereto understands and
acknowledges that this Agreement is non-exclusive and that the Parties,
their Affiliates, their representatives and other entities with whom
they may contact may compete with the other Party hereto in the
business subject in CARRIER's geographic market areas. This Agreement
shall not in any way limit CARRIER's power and right to contract with
other Persons concerning the subject matter hereof on such terms as
CARRIER sees fit even though such Persons, as a result, compete with
RESELLER. This Agreement also shall not in any way limit RESELLER's
power and right to contract with other Persons concerning the subject
matter hereof, either during the term hereof or thereafter, on such
terms as RESELLER sees fit even though such persons, as a result,
compete with CARRIER.
7.3 Insurance. RESELLER shall, at its sole expense, be insured at all times
during the term of this Agreement, and any extension of renewal
thereof, under a comprehensive liability insurance policy against
claims for bodily and personal injury, death and property damage caused
by or occurring in conjunction with RESELLER's activities hereunder.
Such insurance coverage shall be maintained under one or more policies
of insurance issued by insurance companies qualified to do business in
the states where RESELLER performs its duties hereunder, and shall be
in amounts not less than one million dollars ($1,000,000) per
occurrence for bodily and personal injury and death, five hundred
thousand dollars ($500,000) per occurrence for property damage and five
hundred thousand dollars ($500,000) per occurrence for general
liability arising out of RESELLER's conduct hereunder. RESELLER shall
provide CARRIER with copies of said policies upon written notice and
shall provide for not less than thirty (30) days prior written notice
of any modification, cancellation, or non-renewal thereof. RESELLER's
insurance coverage hereunder is only for the purpose of assuring
CARRIER that Customers being solicited for CARRIER's Services shall
receive good service. It does not and shall not be construed to give
CARRIER any control over or interest in any enterprise of RESELLER
other than the solicitation of Customers for CARRIER's Services.
7.4 Indemnification. Notwithstanding any of the provisions of this
Agreement which may be construed to the contrary, RESELLER and CARRIER
will indemnify each other and their respective directors, officers,
employees, agents and representatives ("Indemnified Parties") and save
them harmless from and against any and all claims, actions, damages,
liabilities and expenses (collectively, "Losses") occasioned by any
willful or negligent act or omission of the other Party, its directors,
officers, employees, agents or representatives ("Indemnifying Party"),
relating to the performance of its obligations hereunder. If any
Indemnified Party shall, without fault on its part, be made a party to
any litigation commenced by or against such Indemnified Party, then
Indemnifying Party shall protect and hold such Indemnified Party
harmless, and shall pay all costs, expenses, losses and reasonable
attorney's fees incurred or paid by such Indemnified Party in
connection with said litigation.
7.5 Quality of Service. CARRIER will make every reasonable effort to
provide continuous and uninterrupted service hereunder in accordance
with generally applicable industry standards. EXCEPT FOR ANY EXPRESS
WARRANTIES STATED IN THIS AGREEMENT, CARRIER DISCLAIMS ALL WARRANTIES,
INCLUDING, WITHOUT LIMITATION, ALL IMPLIED WARRANTIES OF
MERCHANTABILITY AND FITNESS AND OF FITNESS FOR A PARTICULAR PURPOSE,
WHETHER SUCH WARRANTIES ARE MADE BEFORE OR AFTER THE EXECUTION HEREOF.
THE STATED WARRANTIES ARE IN LIEU OF ALL OBLIGATIONS OR LIABILITIES ON
THE PART OF THE CARRIER FOR DAMAGES INCLUDING, BUT NOT LIMITED TO
SPECIAL, INDIRECT, INCIDENTAL, CONSEQUENTIAL OR PUNITIVE DAMAGES
ARISING OUT OF OR IN CONNECTION WITH THE
USE OR PERFORMANCE OF CARRIER'S SERVICES. IT IS EXPRESSLY UNDERSTOOD
THAT THE SOLE REMEDY OF RESELLER FOR BREACH OF THIS AGREEMENT BY
CARRIER OR FOR ANY DAMAGE TO RESELLER OR OTHER PERSON CLAIMED TO HAVE
RESULTED FROM RESELLER'S RESALE HEREUNDER OR FROM THE USE OF CARRIER'S
SERVICES IS CREDIT FOR NETWORK OUTAGES AS SET FORTH IN THE ASSOCIATED
PACENET SERVICES AGREEMENT.
7.6 Taxes. RESELLER shall be solely responsible to pay all applicable
local, state and federal taxes, including sales and uses taxes, excise,
access, bypass or other local, state and federal taxes or charges
imposed based upon the provision, sales or use of the Services provided
hereunder. RESELLER also shall pay any applicable gross receipts taxes
with regard to said Services, including surcharges. Such taxes will be
billed by CARRIER to RESELLER and will be separately stated on
RESELLER's invoice, provided, however, that CARRIER will not xxxx to
RESELLER such taxes as may be exempted by a tax exemption or resale
certificate for operations in any state for which RESELLER obtains such
a certificate.
ARTICLE VIII
CONFIDENTIALITY
8.1
ARTICLE IX
MISCELLANEOUS
9.1 Force Majeure. Neither Party shall be liable to the other Party for any
delay or failure to perform hereunder due to causes beyond the control
of said Party, including, but not limited to: acts of God; acts of the
public enemy; acts of the United States of America, or any state,
territory or political subdivision thereof or of the District of
Columbia; fires; floods; epidemics; quarantine restrictions; or strikes
or freight embargoes.
9.1.1 Notwithstanding the foregoing provisions, in every case the
delay or failure to perform must be beyond the control and
without the fault or negligence of the Party claiming
excusable delay.
9.1.2 Performance times under this Agreement shall be considered
extended for a period of time equivalent to the time lost
because of any delay or failure to perform which is excusable
hereunder; provided however, that is any such delay or failure
shall, in the aggregate, last for a period of more than thirty
(30) days, the Party not relying on the excusable delay or
failure, at it option, may terminate this
Agreement.
9.2 Succession. This Agreement shall be binding upon and inure to the
benefit of the Parties and their respective heirs, executors,
administrators, legal representatives, successors, and assigns,
provided, however, that RESELLER may not assign its rights, nor may it
delegate its duties hereunder, except with CARRIER's prior written
consent. Any such attempted transfer shall be void and shall constitute
a breach of this Agreement.
9.3 Notices. All notices pursuant to this Agreement shall be in writing and
shall be sent by overnight mail.
If to CARRIER, to:
PacNet, Inc.
Carrier Sales
0000 0xx Xxxxxx
Xxxxx 0000
Xxxxxxx, XX 00000
If to RESELLER, to:
Rocky Mountain Internet, Inc.
Chief Financial Officer
0000 Xxxxxxxxxx Xxxxxx
Xxxxx 0000
Xxxxxx, XX 00000
9.4 Entire Agreement. This Agreement represents the entire agreement and
understanding between CARRIER and RESELLER as to the subject matter
hereof. No waiver, alteration, or modification of any of the provisions
of this Agreement shall be binding unless in writing and signed by duly
authorized representative of the Party against which enforcement of
such waiver, alteration or modification is sought.
9.5 Savings Clause. If any term, covenant or condition of circumstance
shall to any extent be invalid or unenforceable, the remainder of this
Agreement, or the application of such term, covenant or condition to
person or circumstances other than those as to which it is held invalid
or unenforceable, shall not be affected thereby and each term, covenant
or condition of the Agreement shall be valid and be enforced to the
fullest extent permitted by law. All obligations and duties which by
their nature extend beyond the expiration or termination of this
Agreement shall survive and remain in effect beyond any expiration or
termination.
9.6 Governing Law. This Agreement shall be construed in accordance with and
governed by the laws of the State of Washington.
9.7 Arbitration. Any dispute between CARRIER and RESELLER arising under
this Agreement shall be subject to arbitration in the City of Seattle,
State of Washington,
pursuant to the rules then in effect of the American Arbitration
Association (or any other place or under any form of arbitration
mutually acceptable to the Parties). The decision rendered by the
arbitrator shall be final and conclusive upon the Parties and a
judgment thereon may be entered in the highest court of the forum
having jurisdiction of the matter.
9.8 Attorney Fees and Costs. In the event of any legal dispute between the
Parties relating to this Agreement, including arbitration provided for
in Section 9.7, the most prevailing party shall be entitled to all
costs and legal expenses, including, but not limited to reasonable,
ordinary and necessary attorney fees, accounting fees, court costs,
expert witness expenses and investigation expenses.
9.9 Regulatory Approval. This Agreement shall be subject to and governed by
any applicable state and federal regulatory agencies having
jurisdiction over the subject matter hereof. Should any approval or
authority be required for any acts, duties or obligations to be
performed hereunder, the Parties will cooperate in securing the same.
9.10 Authority to Contract. RESELLER warrants that it has full authority to
enter into this Agreement and that such action has been duly authorized
in accordance with RESELLER's articles of incorporation, bylaws or
other applicable organizational documents and procedures.
9.11 Captions. Captions contained herein are inserted only as a matter of
convenience and in no way define, limit or extend the scope or intent
of any provision hereof and have been duly authorized to do so in
accordance with RESELLER's corporate or other organizational documents
and procedures.
9.12 Independent Business Judgment. The Parties hereby acknowledge and agree
that RESELLER is an independent business sufficiently sophisticated to
exercise and exercising its own business judgment. The Parties hereby
further acknowledge and agree that CARRIER has made no recommendations
or representations regarding any aspect of RESELLER's business,
including, but not limited to, any representations with regard to
RESELLER's profits therefrom.
9.13 Waiver. Failure or delay on the part of either Party to exercise any
right, power or privilege hereunder shall not operate as a waiver of
any other obligation. Waiver by CARRIER or RESELLER of a breach of any
provision of this Agreement by the other party shall not operate or be
construed as a waiver of any subsequent breach by the other Party.
9.14 Counterparts. This Agreement may be executed in counterparts, each of
which shall, for all purposes, be deemed to be an original and all of
which together shall be deemed the same agreement.
9.15 Opportunity to Participate in Drafting. The Parties have been furnished
an equal opportunity to participate in the drafting of this Agreement
and any exhibits or schedules
attached hereto. No ambiguity shall be construed against any Party
based upon a claim that that Party drafted the applicable language.
9.16 Authority to Execute. Each person executing this Agreement on behalf of
another person or organization represents and warrants to the other
Party that he or she is fully authorized to execute and deliver this
Agreement on behalf of such person or organization.
9.17 Non-Solicitations. During the term of this Agreement and for a period
of one (1) year thereafter, CARRIER agrees not to aggressively solicit
the customers of RESELLER, with any products or services that directly
compete with those the RESELLER is offering the customers.
IN WITNESS WHEREOF, the Parties have caused this Agreement to be executed by
their duly authorized officers as of the day and year first above written.
CARRIER: PacNet, Inc. RESELLER: Rocky Mountain Internet, Inc.
By: By:
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Name: Name:
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Title: Title:
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Date: Date:
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