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Exhibit 10.8
VIRTUAL INTERNET SERVICE PROVIDER (ISP)
FULL SUITE SOLUTION AGREEMENT
THIS AGREEMENT (the "Agreement") is made and entered into as of the
date of signature of the last party to sign (the "Effective Date"), by and
between Cable & Wireless USA, Inc., a District of Columbia corporation with its
principal place of business at 0000 Xxxxxxxx Xxxx, Xxxxxx, Xxxxxxxx 00000 ("C&W
USA") and StupidPC, a Georgia corporation with offices at 0000 Xxxxx Xxxx Xxxxx,
Xxxxx X, Xxxxxxxx, Xxxxxxx ("Virtual ISP") (each being referred to individually
as a "Party" and together as the "Parties").
WHEREAS, C&W USA provides certain Internet services including Internet
access, transport, interconnection, web hosing, support, and other related
services.
WHEREAS, Virtual ISP desires to offer its members, subscribers, and/or
other end users ("End Users") certain of C&W USA's Internet services ("Service")
as defined herein, for which Virtual ISP may be identified or co-branded as the
Internet Service Provider to End Users in accordance with the terms set out
herein;
NOW, THEREFORE, in consideration of the mutual promises set forth
below, the Parties hereby agree as follows:
1 DEFINITIONS:
1.1 "Virtual ISP", as used herein, means a sole proprietorship,
partnership, corporation, or other legal entity that offers the Service to End
Users for whom C&W USA will act as an Internet Service Provider ("ISP").
1.2 "End User", as used herein, means a user or subscriber to whom the
Service is made available by C&W USA offered by Virtual ISP, and who incurs
usage charges to C&W USA for the Service, including members of Virtual ISP's
organization such as, without limitation, individuals, corporations or other
legal entities.
1.3 "C&W USA", as used herein, means Cable & Wireless USA Inc.
1.4 "Service" as used herein, means the Internet services provided by
C&W USA to End Users offered by Virtual ISP as well as the Internet-related
services provided by C&W USA to Virtual ISP for the purposes of customizing,
adapting, administering, and collecting End User payments for Virtual ISP with
respect to the Internet services offered to End Users, as set forth herein and
in Exhibit B attached hereto.
2 SERVICE:
2.1 C&W USA INTERNET SERVICES. C&W USA will provide to End Users,
through reprovisioning by Virtual ISP to End Users, analog or digital dial
access to the Internet, and services related thereto, as follows and as
described in Exhibit B, according to Virtual ISP's agreed customization and
service level as described in Exhibit A.
2.1.1 INTERNET DOMAIN NAME. In providing the Service to End
Users, C&W USA shall use the domain name determined as follows:
(a) USE OF EXISTING VIRTUAL ISP DOMAIN NAME. At the
Virtual ISP's option, C&W USA shall use an existing domain
name provided by Virtual ISP, or a new domain name procured by
Virtual ISP, for purposes of allowing C&W USA to provide the
Service under this Agreement.
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(b) C&W USA PROCUREMENT OF NEW DOMAIN NAME. At the
Virtual ISP's option, C&W USA shall procure and establish a
new domain name for purposes of C&W USA providing the Service
under this Agreement, for which Virtual ISP agrees to pay the
domain name reservation fee set forth in Exhibit A attached
hereto.
(c) LIMITATIONS ON CHOICE OF DOMAIN NAME. Domain
names are subject to availability, and Virtual ISP
acknowledges that C&W USA is not responsible for the failure
to obtain a requested domain name. Furthermore, C&W USA
reserves the right to reject the use of a domain name if C&W
USA determines that the use of such domain name may either:
(i) infringe on another party's trademark; (ii) be misleading
or deceptive; (iii) constitute objectionable or otherwise
offensive words or language or (iv) subject C&W USA to civil
or criminal liability.
2.1.2 SERVICE LIMITATIONS. Virtual ISP hereby acknowledges
that the Services are subject to certain conditions generally beyond
the control of C&W USA, including the type and condition of the
equipment (personal computer, modem, etc.) of End Users. The Service
may be temporarily unavailable or limited because of capacity
limitations and may be temporarily interrupted or curtailed due to
equipment modifications, upgrades, relocations, repairs, and similar
activities necessary for the proper operation of the Service.
2.1.3 ACCOUNT ACTIVITY RECORDS. C&W USA shall provide periodic
account activity reports to Virtual ISP coinciding with C&W USA's
payment to Virtual ISP of Virtual ISP's royalty share as provided in
section 4 of this Agreement. Account activity reports shall set forth
End User information in detail sufficient only to allow Virtual ISP to
verify its royalty share and in compliance with any applicable consumer
privacy laws. Account activity reports shall be and remain the sole
property of C&W USA.
2.1.4 OTHER SERVICES. C&W USA reserves the right to market
other C&W USA Internet services and related services apart from and in
addition to the Services provided herein to End Users using the Service
hereunder or otherwise, including, without limitation, broadcast or
distribution via the Service (e.g., email) of marketing communications
designed to inform End Users of C&W USA services promotions or events.
2.1.5 END USER SERVICE ACCESS. Service access will be provided
to End Users via a local telephone number where coverage is available.
C&W USA is not responsible for any toll or other fee or charge. The
Service may be remotely accessed via a toll-free number at an
additional charge to be agreed upon by the Parties or End Users.
2.2 VIRTUAL ISP RESPONSIBILITIES.
2.2.1 GENERAL OBLIGATIONS. Virtual ISP hereby agrees to: (i)
Comply with the terms and conditions set forth herein and as more fully
described in Exhibits A and B attached hereto; (ii) provide notice
within 45 days with respect to any disputed royalty payment or other
item contained in any billing report or invoice received from C&W USA
for prompt resolution; (iii) comply fully with all applicable federal,
state and local laws, regulations, and ordinances relating to the
Service to be provided hereunder and the reprovisioning of the Service
to the End Users, and (iv) otherwise comply with the terms and
conditions as set forth herein.
2.2.2 GRANT OF LICENSE TO DOMAIN NAME. In consideration of the
royalty sharing provisions set forth herein and in Exhibit A attached
hereto and in addition to any fees due to C&W USA hereunder, Virtual
ISP hereby grants to C&W USA a fully paid-up,
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worldwide, exclusive, and irrevocable license to use the domain name in
connection with providing the Service under this Agreement, as
described in section 2.1, for the duration of this Agreement and
according to the Termination provisions contained herein. To the extent
that such license depends on any use rights to Virtual ISP's name,
Virtual ISP hereby grants to C&W USA a fully paid-up, worldwide,
exclusive, and irrevocable license to use Virtual ISP's name in
connection with providing the Service under this Agreement.
2.2.3 END USER TERMS AND CONDITIONS. In the event that Virtual
ISP enters into a separate agreement with the End Users with respect to
the Services hereunder, Virtual ISP warrants that it will require each
End User to whom Virtual ISP resells the Service to agree in writing to
acknowledge and comply with the terms and conditions as set forth in
section 8 herein and in Exhibit C attached hereto, unless such End User
agreement is otherwise executed by C&W USA directly with End Users.
2.2.4 COLLECTION ASSISTANCE. The Virtual ISP shall, if and
when requested by C&W USA, assist C&W USA with respect to collecting
amounts owed to C&W USA by End Users ("Collection Assistance").
Collection Assistance shall be limited to making a reasonable number of
calls to an End User to request amounts due C&W USA. If the Virtual ISP
fails to provide Collection Assistance for a particular End User, in
addition to any other remedies available to C&W USA, C&W USA may, upon
ten (10) days' prior written notice to the Virtual ISP, suspend its
payment of royalties to the Virtual ISP for such End User until such
time as the Virtual ISP provides such assistance. In addition, C&W USA
reserves the right to discontinue paying royalties to the Virtual ISP
for any End User that fails to pay C&W USA for C&W USA's services in
accordance with C&W USA's payment terms for such services. C&W USA
shall provide the Virtual ISP with ten (10) days' advance written
notice prior to any such discontinuance of royalties to the Virtual
ISP.
3 PRICING:
Payments to C&W USA from End Users received in connection with
the Service hereunder shall be apportioned between C&W USA and Virtual
ISP in accordance with Exhibit A attached hereto. Fees to be paid by
Virtual ISP to C&W USA associated with the Service plan including, but
not limited to, any optional services to be provided by C&W USA are set
forth in Exhibit A attached hereto. If service access is not provided
via a local telephone number, End User will be responsible for toll or
other charges. Notwithstanding anything to the contrary herein, C&W USA
may upon advance written notice adjust its rates or charges or impose
additional rates and charges in order to recover amounts it may be
required by governmental or quasi-governmental authorities to
collection or pay to others to support statutory or regulatory programs
during the term of this Agreement (e.g., the "Universal Service Fund").
4 PAYMENT:
Virtual ISP shall pay C&W USA fees for services provided as
set forth in Exhibit A attached hereto in accordance with the terms set
forth therein and in Exhibit B attached hereto. C&W USA shall pay
Virtual ISP the royalty share as set forth in Exhibit A attached hereto
on a monthly basis in accordance with the terms set forth therein, C&W
USA reserves the right to apply Virtual ISP's royalties due to any
outstanding payment from Virtual ISP due C&W USA, under this Agreement
or otherwise, before providing the remaining portion thereof to Virtual
ISP in payment of the royalties set forth in Exhibit A attached hereto.
Amounts attributable to Federal, state and local taxes, fees, and
surcharges of any kind shall be excluded from the End User payment
basis used for determining the royalties due to Virtual ISP under this
Agreement and Exhibit B attached hereto.
5 TERM AND TERMINATION:
5.1 TERM. This Agreement becomes effective as of its Effective Date and
shall remain in effect for the period indicated in Exhibit A attached hereto or
until terminated as provided herein. This Agreement shall continue in effect for
successive consecutive additional terms as provided in Exhibit A following the
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initial Term until either Party gives the other party notice of termination as
set forth in section 5.2 below.
5.2 TERMINATION. Either Party may terminate this Agreement without
cause by giving notice to the other Party at least thirty (30) days prior to the
expiration of the then-current term. In the event of termination, each Party
hereby agrees to not disclose to any third party the confidential information of
the other Party obtained under this Agreement, including, without limitation,
End User confidential information or privacy information, business plans and
operations, including marketing plans, pricing strategies, and service costs,
and technical information and intellectual property of any kind associated with
any network element, whether or not protected through patent or copyright or
other form of protection.
5.2.1 TERMINATION FOR CAUSE. In addition to any other
termination provision set forth herein, a Party may terminate this
Agreement for cause upon the other Party's Default as specified in
section 10 herein. C&W USA shall have the right to terminate this
Agreement if: (i) after twelve (12) months following the Effective Date
of this Agreement the total number of active End Users acquired under
this Agreement falls below 5,000 End Users, or (ii) Virtual ISP
violates the non-compete provision set forth in section 5.2.2(b).
5.2.2 C&W USA END USERS. In the event of termination by either
Party, C&W USA hereby reserves the right to continue to provide the
Service to End Users as follows:
(a) CONTINUITY OF SERVICE. In the event of
termination, C&W USA shall have the right to continue to provide
Service to End Users in C&W USA's sole discretion.
(b) NON-COMPETE. Notwithstanding applicable law, in
no event shall Virtual ISP be entitled to migrate or move C&W USA's End
Users acquired under this Agreement or otherwise to another service,
nor shall Virtual ISP attempt to solicit End Users to another service
or offer to End Users the Service as set forth herein provided by a
third party, for the longer of: (i) the duration of this Agreement,
(ii) the time during which C&W USA pays royalties of any amount to
Virtual ISP. However, C&W USA will optionally provide to Virtual ISP
the ability to broadcast or distribute via the Service (e.g., email) to
End Users, in accordance with its privacy policy. Marketing
communications designed to inform End Users of Virtual ISP promotions
or similar Virtual ISP sales events for services other than the
Service.
5.2.3 SURVIVABLE DOMAIN NAME LICENSE. In the event that: (i)
C&W USA terminates this Agreement for cause, or (ii) Virtual ISP
terminates this Agreement without cause, Virtual ISP's fully paid-up,
worldwide, exclusive, irrevocable, and perpetual license grant to C&W
USA to use the domain name in connection with providing the Service
under this Agreement, as described in section 2.1. shall survive
termination of this Agreement and shall continue in effect for at least
one (1) year form the date of termination or for as long as C&W USA
pays royalties of any amount to Virtual ISP for Service hereunder,
whichever is longer.
5.2.4 EFFECT OF TERMINATION ON ROYALTIES. In the event of
termination for cause by C&W USA, C&W USA shall cease to pay royalties
to Virtual ISP for Service to any End User beyond the billing period in
which termination occurs. In the event of termination by C&W USA
without cause, C&W USA shall continue to pay royalties to Virtual ISP
as set forth in Exhibit A attached hereto for one (1) year following
the date of termination; C&W USA shall cease to pay royalties to
Virtual ISP for Service to any End User thereafter.
5.2.5 RIGHT TO TERMINATE INDIVIDUAL END USERS. C&W USA hereby
reserves the right to terminate Service to any one or more particular
End Users that violate C&W USA's Acceptable Use Policies.
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6 COMPLIANCE ASSURANCE:
6.1 COLLATERAL. C&W USA shall have the right to review all Virtual ISP
sales collateral descriptions of the Service offering, and other material,
including webpages containing the name, logo, or any other reference or
identifying xxxx associated with C&W USA. Virtual ISP shall not publish or
distribute such materials without having first received the prior consent of C&W
USA, which shall not be unreasonably withheld.
6.2 OPERATIONS. C&W USA further reserves the right to review Virtual
ISP's sales or reprovisioning operations generally to confirm Virtual ISP
compliance with the terms of this Agreement in C&W USA's sole discretion.
7 LIMITATION OF LIABILITY:
7.1 SERVICE. C&W USA SHALL NOT BE LIABLE FOR OMISSIONS, INTERRUPTIONS,
DELAYS, ERRORS, DEFECTS OR CURTAILMENTS IN THE SERVICE INTERRUPTIONS CAUSED BY
FAILURE OF EQUIPMENT OR SERVICES NOT PROVIDED BY C&W USA, FAILURE OF
COMMUNICATIONS, POWER OUTAGES, OR OTHER INTERRUPTION NOT WITHIN THE COMPLETE
CONTROL OF C&W USA, NOR SHALL C&W USA BE LIABLE FOR PERFORMANCE DEFICIENCIES
CAUSED OR CREATED BY VIRTUAL ISP'S REPRESENTATIONS OR END USERS' EQUIPMENT.
7.2 CONTENT. C&W USA SHALL HAVE NO LIABILITY TO VIRTUAL ISP, END USERS,
OR OTHER THIRD PARTIES WITH RESPECT TO ITS OBLIGATIONS UNDER THIS AGREEMETN OR
OTHERWISE FOR CONSEQUENTIAL, EXEMPLARY, SPECIAL, INCIDENTAL, INDIRECT OR
PUNITIVE DAMAGES ARISING OUT OF ANY CONTENT TRANSMITTED UNDER THE TERMS OF THIS
AGREEMENT. VIRTUAL ISP HEREBY RELEASES C&W USA FROM LIABILITY ARISING FROM ANY
CONTENT ACCESSED VIA THE SERVICE.
7.3 FORCE MAJEURE. C&W USA's performance under this Agreement shall be
excused in case of labor difficulties, governmental orders, civil commotions,
acts of god, or other conditions or circumstances beyond its reasonable control.
7.4 IN NO EVENT SHALL C&W USA BE LIABLE FOR ANY INCIDENTAL, SPECIAL,
CONSEQUENTIAL, OR PUNITIVE DAMAGES INCLUDING BUT NOT LMITED TO LOSS OF PROFITS,
LOSS OF BUSINESS OR BUSINESS OPPORTUNITY, LOSS OF USE, ETC. THE LIABILITY OF C&W
USA FOR ACTUAL PROVEN DAMAGES FOR ANY CAUSE WHATSOEVER, INCLUDING BUT NOT
LIMITED TO ANY FAILURE OF OR DISRUPTION OF SERVICE, REGARDLESS OF THE FORM OF
ACTION, WHETHER IN CONTRACT OR IN TORT OR OTHERWISE, INCLUDING NEGLIGENCE, SHALL
BE LIMITED TO AN AMOUNT EQUIVALENT TO FEES PAYABLE BY VIRTUAL ISP UNDER THIS
AGREEMENT FOR THE SERVICE DURING THE PERIOD SUCH DAMAGES OCCUR.
7.5 NO WARRANTIES. EXCEPT AS SET FORTH IN THIS AGREEMENT, C&W USA MAKES
NO WARRANTIES OR REPRESENTATIONS, EITHER EXPRESS OR IMPLIED, CONCERNING THE
SERVICE, AND EXPRESSLY DISCLAIMS WARRANTIES OF FITNESS FOR A PARTICULAR USE OR
PURPOSE. THE WARRANTY OF MERCHANTABILITY AND ANY OTHER WARRANTY IMPLIED BY LAW.
8 INDEMNIFICATION:
8.1 GENERAL. Virtual ISP shall protect, indemnify, and hold harmless
C&W USA and its officers, directors, employees, agents and third party suppliers
along with any parties from whom C&W USA obtains network services from and
against any loss, cost, claim, liability, damage, or expense (including
reasonable attorneys' fees) to third parties, relating to or arising from: (i)
the representations made by Virtual ISP, including sales collateral regarding
the Service or regarding C&W USA, End User, or
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any of their personnel, whether or not Virtual ISP or End User has knowledge of
such representations, including, without limitation, claims for libel, slander,
invasion of privacy, infringement of copyright, patent infringement (where
Virtual ISP or End User has used, connected, or combined the Service with the
products or services of others), negligence, or tortious behavior; (ii) content
including, without limitation, any claims arising out of dilution and/or (iv)
physical injury or death to persons, damage to property, Virtual ISP's breach of
any of the terms of this Agreement, or Virtual ISP's misrepresentation, fraud,
or negligence with respect to any End User. Virtual ISP acknowledges and agrees
that C&W USA shall have no obligation to Virtual ISP, End User, or any member of
Virtual ISP's organization other than as expressly set forth in this Agreement.
8.2 VIRTUAL ISP INTELLECTUAL PROPERTY. Virtual ISP represents and
warrants that it or End User owns or has a license to use all copyrights,
licenses, trademarks, service marks, and intellectual property rights for (i)
all elements of its sales material related to the Service and (ii) all
trademarks, copyrights and other intellectual property rights with respect to
any Virtual ISP supplied or chosen domain name or content, and that there is no
geographic restriction on Virtual ISP or End User use of any of these
intellectual property elements, Virtual ISP specifically grants C&W USA the
worldwide right to transmit, download, copy or cache all such intellectual
property elements necessary for Virtual ISP to market the Service using C&W
USA's network elements. Virtual ISP agrees to defend and/or handle at its own
expense any claim or action against C&W USA or any of its affiliated entities
for actual or alleged infringement of any US or international intellectual or
industrial property right, including, without limitation, trademarks, service
marks, patents, copyrights, misappropriation of trade secrets or any similar
proprietary rights arising out of Virtual ISP's particular use of the Service.
8.3 C&W USA INTELLECTUAL PROPERTY. C&W USA shall, at its own expense,
defend any suit or claim instituted against Virtual ISP and indemnify Virtual
ISP against any award of damages and costs entered against Virtual ISP by a
final judgment of a court of competent jurisdiction in any such suit insofar as
the same is based on a claim that the C&W USA furnished equipment and/or the C&W
USA services constitute an infringement of any United States patent, copyright,
trademark or similar proprietary right of a third party; provided that Virtual
ISP gives C&W USA prompt written notice of the institution of such suit or the
assertion of such claim and permits C&W USA to defend the same and gives C&W USA
all reasonably available information and assistance and authority to enable C&W
USA to do so. C&W USA shall have control of the defense of any such suit,
including appeals and all negotiations thereof, including the right to effect
settlement or upon the use of the C&W USA furnished equipment or the C&W USA
services with any service, equipment or software not made or furnished by C&W
USA. The foregoing states the entire liability of C&W USA with respect to
infringement of patents, copyrights, trademarks or similar proprietary rights of
a third party by the C&W USA furnished equipment and/or the C&W USA services and
any resulting unavailability of such services and/or equipment.
8.4 END USER PRIVACY. Virtual ISP hereby represents and warrants that
any End User information provided by Virtual ISP to C&W USA is: (i) authorized
by the End User(s) for dissemination to C&W USA, and (ii) provided in lawful
compliance with any applicable consumer privacy laws, including, without
limitation, consumer safety laws for the applicable jurisdiction, foreign
privacy laws, as well as any private agreements between Virtual ISP and End
Users. Virtual ISP shall protect, indemnify, and hold harmless C&W USA and its
officers, directors, employees, agents and third party suppliers along with any
parties from whom C&W USA obtains network services from and against any loss,
cost, claim, liability, damage, or expense (including reasonable attorneys'
fees) to End Users and third parties, relating to or arising Virtual ISP's
failure to maintain End User information in compliance with all applicable
privacy laws and agreements. C&W USA shall not provide End User account or other
information to third parties except in compliance with an order issuing from a
court of competent jurisdiction.
9 END USER USE OF SERVICE:
9.1 ACCEPTABLE USE POLICY. In the event that Virtual ISP enters into a
separate agreement with the End Users with respect to the Services hereunder,
Virtual ISP agrees to require End Users to acknowledge their compliance to the
terms of C&W USA's Internet Acceptable Use Policy, which is set forth at
xxxx://xxx.xxxxx.xxx/xxxxxxxx_xxx.xxx.
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9.2 EXPORT COMPLIANCE. In the event that Virtual ISP enters into a
separate agreement with the End Users with respect to the Services hereunder,
Virtual ISP further agrees to require End Users to acknowledge their compliance
to U.S. export laws concerning the transmission of technical data and other
regulated materials via the Services.
10 DEFAULT:
In the event a Party fails to comply with any material term of this
Agreement, including, without limitation, failure to make timely payment of any
amount due the other Party or mischaracterization of C&W USA and/or the Service,
that Party shall be in Default ("Default") of this Agreement. In the event of a
non-payment Default, the defaulting Party shall be provided a notification of
default ("Notice of Default"). In the event of Default, C&W USA shall continue
to provide Service to End Users in C&W USA's sole discretion.
11 GOVERNING LAW AND FORUM SELECTION:
This Agreement shall be governed by, construed under, and enforced in
accordance with, the laws of the Commonwealth of Virginia, exclusive of its
conflict of laws rules. Any legal action of whatever nature by or against the
Parties arising out of or related in any respect to the Agreement shall be
brought solely, in either the United States District Court for the Eastern
District of Virginia or the appropriate court of the Commonwealth of Virginia
located in the jurisdiction where C&W USA has its principal place of business.
Virtual ISP hereby consents to (and waives any challenge or objection to)
personal jurisdiction in Virginia and consents to legal process by mail in
accordance with the provisions of Code of Virginia Annotated and the Virginia
rules of procedure.
12 MISCELLANEOUS:
In the event of a conflict between this Agreement and any applicable
tariff, the tariff shall prevail. If any provision of this Agreement shall be
held to be invalid or unenforceable, the validity and enforceability of the
remaining provisions of this Agreement shall not be affected thereby. This
Agreement embodies the entire agreement between the parties with respect to the
subject matter hereof and supersedes all prior agreements and understandings,
whether written or oral and all contemporaneous oral agreements and
understandings relating to the subject matter hereof. Neither Party shall issue
a news release, public announcement, advertisement, or other form of publicity
concerning the existence or the terms of this Agreement without obtaining prior
written approval from the other Party. This Agreement is subject to modification
by any authorized regulatory agency. C&W USA reserves the right to withhold
certain End User information in compliance with state, federal and foreign
privacy laws. Virtual ISP may not assign this Agreement without C&W USA's prior
written consent. This Agreement shall be binding on the parties hereto and their
respective personal and legal representatives, successors, and permitted
assigns.
IN WITNESS WHEREOF, C&W USA and StupidPC have caused this Agreement to
be executed by their duly authorized representatives as of the date first
written above.
Virtual ISP Cable & Wireless USA, Inc.
By: /s/ Xxxx Xxxxxxx By: /s/ Xxxx Corner
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Name: Xxxx Xxxxxxx Name: Xxxx Corner
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Title: President Title: Senior Vice President
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Date: November 12, 1999 Date:
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