EXHIBIT 10.9
LICENSE AND SERVICE AGREEMENT
THIS LICENSE AND SERVICE AGREEMENT ("Agreement"), by and among **
("LICENSOR"), ** ("COMPANY"), and MIDNET USA, INC., A NEVADA CORPORATION
("CUSTOMER") is entered into as of July 23, 2004.
INTRODUCTION
Licensor operates the Data Center and has agreed to provide the License
Services to Customer in accordance with Section 2 of this Agreement.
Company has agreed to provide the Company Services to Customer at the Data
Center in accordance with Section 3 of this Agreement. Customer has agreed
to pay the Service Fees to Licensor and/or Company and to comply with the
terms of this Agreement. The License and Service Provisions Addendum and
any other documents executed by Licensor and/or Company and Customer in
connection with this Agreement, as may be amended from time to time, are
made part of this Agreement. All capitalized terms are defined in Section
13 of this Agreement.
LICENSE SERVICES
1.1 General. Licensor shall provide License Services to Customer subject to
and in accordance with the provisions of this Agreement. Subject to the terms
and conditions of this Agreement, Licensor grants Customer a limited and
non-exclusive license to use the Customer Area and Data Center in accordance
with this Agreement.
1.2 Term; Service Fees. The Term of this Agreement with respect to any
particular License Service, and the Service Fees for that Service, shall be as
indicated on the applicable License and Service Provisions Addendum signed by
Customer and Licensor. The Term for such Services may be extended as agreed to
by Licensor and Customer. If Licensor and Customer fail to execute a new License
and Service Provisions Addendum after the expiration of a Term, this Agreement
shall remain in effect on a month-to-month basis and Licensor may, in its sole
discretion, increase the License Service Fees or terminate this Agreement upon
ten (10) days prior written notice.
1.3 Payment. Licensor shall invoice all Service Fees for License Services
monthly in advance, and Customer shall pay all amounts due on the first day of
each month, or as otherwise indicated on the invoice. If Service Fees are not
paid within ten (10) days from the date due, (a) a late fee of five percent (5%)
of the overdue amount shall be due and payable by Customer and (b) such overdue
amount will accrue interest from ten (10) days after the due date to the date of
payment, at the standard late interest rate charged by Licensor, and (c)
Customer shall reimburse Licensor for all of its attorneys' fees and costs. All
payments to Licensor are exclusive of all applicable taxes, fees or levies
whatsoever, now or in the future imposed on the transaction or the delivery of
License Services, all of which Customer shall pay in full as invoiced by
Licensor.
2.4 Payment Due Upon Execution. The following sums (see Section 7 of the
Addendum) shall be due and payable by Customer to Licensor upon Customer's
execution of this Agreement and shall be sent with Customer's executed copies of
this Agreement to Licensor: (a) any Non-Recurring Fees set forth in Section 5 of
the Addendum; (b) the first and last months' Monthly License Fees as set forth
in Section 5 of the Addendum; and (c) a Security Deposit in the amount set forth
in Section 6 of the Addendum.
COMPANY SERVICES
1.4 General. Company shall provide Company Services to Customer subject to
and in accordance with the provisions of this Agreement.
1.5 Term; Service Fees. The Term of this Agreement with respect to any
particular Company Service, and the Service Fees for that Service, shall be as
indicated on the applicable License and Service Provisions Addendum signed by
Customer and Company; provided that the term of this Agreement for Company
Services shall not extend beyond the Term for License Services. The Term for
Company Services may be extended as agreed to by Company and Customer. If
Company and Customer fail to execute a new License and Service Provisions
Addendum after the expiration of a Term, this Agreement shall remain in effect
on a month-to-month basis and Company may, in its sole discretion, increase the
Company Service Fees or terminate this Agreement upon ten (10) days prior
written notice.
1.6 Payment. Company shall invoice all Service Fees for Company Services
monthly in advance, and Customer shall pay all amounts due on the first day of
each month, or as otherwise indicated on the invoice. If Service Fees are not
paid within ten (10) days from the date due, (a) a late fee of five percent (5%)
of the overdue amount shall be due and payable by Customer and (b) such overdue
amount will accrue interest from ten (10) days after the due date to the date of
payment, at the standard late interest rate charged by Licensor, and (c)
Customer shall reimburse Company for all of its attorneys' fees and costs. All
payments to Company are exclusive of all applicable taxes, fees or levies
whatsoever, now or in the future imposed on the transaction or the delivery of
Company Services all of which Customer shall pay in full as invoiced by Company.
3.4 Payment Due Upon Execution. The following sums (see Section 9 of the
Addendum) shall be due and payable by Customer to Company upon Customer's
execution of this Agreement and shall be sent with Customer's executed copies of
this Agreement to Licensor: (a) any Non-Recurring Charges set forth in Section 8
of the Addendum and (b) the first month's Monthly Recurring Charges as set forth
in Section 8 of the Addendum.
CUSTOMER EQUIPMENT
1.7 Installation. After obtaining authorization from Licensor, Customer may
install Customer Equipment, in the Customer Area specified for Customer as
provided in the License and Service Provisions Addendum or as otherwise
specified by Licensor. Customer agrees to provide Licensor, from time to time,
with a list of Customer Equipment and its estimated market value, and to install
and operate the Customer Equipment, including interconnections, cabling and
conduit, only in the locations and as otherwise specified on the applicable
License and Service Provisions Addendum and in accordance with this Agreement.
** The confidential portion has been omitted pursuant to a request for
confidential treatment. The confidential portion has been filed separately with
the Securities and Exchange Commission.
1.8 Access and Use. The Customer Area shall only be accessed in accordance
with Licensor's security and access policies and rules. Licensor shall have the
right, but not the obligation, to restrict access to those representatives of
Customer who are specified in writing by Customer. Customer shall have no
license to access, use, operate or store Customer Equipment (including, without
limitation, conduits and cabling) in any location other than the Customer Area
as specified in the License and Service Provisions Addendum, or as otherwise
approved by Licensor. Licensor and Company shall have access to the Customer
Area in order to perform Services, maintenance or repairs, to make alterations,
and to show and inspect the Customer Area. Licensor may modify or suspend
License Services as necessary to comply with any law or regulation or Licensor
policy, as reasonably determined by Licensor. Customer shall comply with
Licensor's rules and regulations, including security and access policies, with
respect to the Data Center. Customer may use the Customer Area only for purposes
of storing maintaining and operating Customer Equipment in a manner consistent
with the business and operations of the Data Center, Customer shall not use the
Customer Area for general office use or for any other purpose. Customer agrees
not to interfere with the use of the Data Center by other customers, licensees,
occupants and tenants. If Customer or the Customer Equipment interferes with the
operations of the Data Center or with any operations or equipment of any
customer, licensee, occupant or tenant of the Data Center, Customer shall
immediately eliminate all such interference. No work or alterations to the Data
Center shall be performed by or on behalf of Customer unless approved in writing
and in advance by Licensor, and Customer shall not cause any liens to be imposed
upon the Data Center. If Customer desires to interconnect with other customers,
licensees or tenants in the Data Center and/or Building, Customer agrees to
facilitate all of its interconnections and cross-connections via the MUX and MDF
Rooms offered by Company. Customer acknowledges that neither Licensor nor
Company have made any representations or warranties regarding Customer's ability
to interconnect with other customers, licensees or tenants in the Data Center
and/or Building. Customer's inability to interconnect with other customers,
licensees or tenants in the Data Center and/or Building shall not affect
Customer's obligations under this Agreement.
1.9 Removal of Customer Equipment. If Customer wants to remove any Customer
Equipment during the Term of this Agreement, Customer shall provide Licensor
with a written description of the Customer Equipment to be removed. Upon
request, Customer shall pay all Service Fees and other sums payable to Licensor
prior to removal of substantially all of the Customer Equipment.
1.10 Relocation of Customer Equipment. In the event Licensor determines
that it is necessary to relocate Customer Equipment, Licensor shall use
commercially reasonable efforts to minimize the interference with Customer's use
of the Services, and Customer shall cooperate in good faith with Licensor to
facilitate such relocation. Licensor shall be responsible for any costs incurred
by Licensor in connection with any such relocation, and for the cost of direct
labor incurred by Customer within the Data Center in connection with such
relocation (but not other costs incurred by Customer). Notwithstanding the
foregoing, if such relocation is due to interference of Customer Equipment or
otherwise required because of Customer, Customer shall be responsible for the
costs of such relocation, including all costs incurred by Licensor, Company and
Customer.
1.11 Security. Licensor has rules and policies governing security, with
which Customer agrees to comply; however, Licensor does not guarantee the
security of Customer Equipment or the Customer Area, and Customer agrees that
Licensor will not be liable for any inability, failure or mistake in doing so.
Customer shall provide to the Data Center manager any keys or any other means
necessary to access such Customer Equipment during emergencies.
1.12 Removal of Cabling. Customer shall, at its sole cost and expense,
promptly (and otherwise within five (5) business days after demand by Licensor,
which demand may be made from time to time and at any time) remove any unused
and/or dead cables of Customer in the Customer Area, Data Center and/or any
other portion of the Building (without providing Customer the right to have any
cabling except to the extent set forth in the License and Service Provisions
Addendum), and immediately repair all damage resulting from such removal. If
Customer fails to comply with the foregoing terms of this Section 4.6, then
Licensor may, upon forty-eight (48) hours written notice to Customer, remove
such unused and/or dead cables (whether existing or future), and/or repair those
portions of the Customer Area, Data Center and/or any other portion of the
Building damaged by the removal (whether the removal was done by Licensor or
Customer), and Customer shall, immediately upon demand by Licensor, pay to
Licensor all costs and expenses incurred in connection therewith, including,
without limitation, Licensor's administrative fee of fifteen percent (15%) of
the cost of the work in question.
CUSTOMER OBLIGATIONS
1.13 Representations and Warranties of Customer. Customer represents and
warrants (to Licensor and Company) that at all times (i) Customer has the legal
right and authority, and will maintain the legal right and authority during the
Term of this Agreement, to install and use the Customer Equipment as
contemplated under this Agreement; and (ii) the performance of its obligations
under this Agreement and use of Services and Customer Equipment will not violate
applicable manufacturer's specifications, or any applicable laws or regulations,
or rules, regulations or policies of Licensor or Company, or unreasonably
interfere with other Licensor and/or Company customers' use of Services, or with
the use of Services of the Data Center by any customers, licensees, tenants or
other occupants of the Data Center, (iii) the person or persons executing this
Agreement on behalf of Customer is or are authorized to do so.
1.14 Damage/Repair. If Customer or any of its agents, assignees,
sublicensees, representatives, employees, contractors, subcontractors or
invitees damages any portion of the Data Center or any equipment of any
customer, licensee, occupant or tenant, Licensor and/or Company shall have the
right and may, in its sole discretion, repair such damage and Customer shall
immediately reimburse Licensor and/or Company, as applicable for all costs and
expenses incurred in such repair.
INSURANCE
1.15 Customer Minimum Insurance Levels. Customer will maintain the
following insurance during the Term: (i) comprehensive general liability
insurance in an amount not less than US$2 million per occurrence for bodily
injury and property damage; (ii) hazard insurance for Customer Equipment for
perils covered by the special form ISO Commercial Property insurance policy,
including but not limited to loss of business income and extra expense; and
** The confidential portion has been omitted pursuant to a request for
confidential treatment. The confidential portion has been filed separately with
the Securities and Exchange Commission.
2
(iii) machinery insurance for Customer Equipment for perils covered by the broad
form machinery policy, including but not limited to business interruption and
extra expense, and (iv) workers compensation insurance or employer's liability
insurance in an amount not less than that required by applicable law. Such
insurance: shall be with insurers reasonably acceptable to Licensor and Company;
shall not have a deductible amount in excess of US$10,000 in aggregate; shall
name Licensor and Company and any other parties identified by Licensor or
Company from time to time, such as their lenders, as additional insureds
(Licensor, Company, and such additional parties shall be referred to herein as
the "Additional Insureds"); shall provide that such insurance is primary and
that any insurance carried by Licensor or Company or any other Additional
Insured is excess and non-contributing; shall provide that such insurance cannot
be canceled or modified upon less than thirty (30) days prior written notice to
Licensor and Company and any other Additional Insured; and shall provide that
the insurer waives all rights of subrogation against Licensor, Company, all
Additional Insureds and their respective officers, directors, employees, agents,
representatives and contractors. Prior to any installation of Customer Equipment
in the Customer Area, and prior to any expiration date of the insurance
policies, Customer will furnish copies of policies which evidence insurance
coverage required hereunder. Upon request by Licensor or Company, Customer will
provide copies of all required insurance policies.
1.16 Waiver of Subrogation. Licensor, Company and Customer hereby waive and
shall cause their respective property insurance carriers to waive any and all
rights of recovery, claim, action or causes of action against the other and
their respective trustees, principals, beneficiaries, partners, officers,
directors, agents, and employees, for any loss or damage that may occur to
Licensor, Company or Customer or any party claiming by, through or under
Licensor, Company or Customer, as the case may be, with respect to any Customer
Equipment or the Data Center thereof, including all rights of recovery, claims,
actions or causes of action arising out of the negligence of Licensor, Company
or the negligence of Customer which loss or damage is (or would have been, had
the property insurance required by this Agreement been carried) covered by
insurance.
INTELLECTUAL PROPERTY
Customer is and shall remain exclusively entitled to all right, title and
interest in and to all of Customer's Technology and its Confidential
Information, Licensor is and shall remain exclusively entitled to all
right, title and interest in and to all of Licensor's Technology and its
Confidential Information, and Company is and shall remain exclusively
entitled to all right, title and interest in and to all of Company's
Technology and its Confidential Information. No Party shall, directly or
indirectly, reverse engineer, decompile, disassemble or otherwise attempt
to derive source code or other trade secrets from the property of the other
Parties.
NO LEASE OR EASEMENT
This Agreement is a services agreement and does not constitute a lease,
sublease or easement of or with respect to real property. Customer
acknowledges and agrees that it has been granted only a limited and
non-exclusive license to use the Customer Area and the Data Center in
accordance with this Agreement, and to obtain the License Services and
Company Services.
NO THIRD PARTY BENEFICIARIES; INDEMNIFICATION
Licensor, Company and Customer agree that there shall be no third party
beneficiaries to this Agreement, including, but not limited to, the
insurance providers for any Party. Customer will indemnify, defend, protect
and hold harmless Licensor and Company, and their respective officers,
directors, principals, and employees (collectively, the "Indemnified
Parties"), from and against any and all costs, damages, liabilities,
losses, and expenses (including, but not limited to, reasonable attorneys'
fees and costs) resulting from any claim, suit, action, or proceeding
brought by any third party against any Indemnified Party alleging (i) the
infringement or misappropriation of any intellectual property right or
other unlawful or illegal wrongdoing by Customer relating to the delivery
or use of Services by Customer, its officers, directors, principals,
employees, agents, assignees and sublicensees; (ii) personal or physical
injury or property damage caused by Customer, its officers, directors,
principals, employees, agents, assignees or sublicensees; (iii) any work
done at the Data Center by or for Customer, or any negligent act or
omission by Customer or its officers, directors, principals, employees,
agents, assignees and sublicensees, or any breach of this Agreement by
Customer; and (iv) any damages arising out of the Services or the failure
of Services, or the use by Customer or its employees, agents, contractors,
assignees or sublicensees of the Data Center, or any claims by customers of
Customer, or the destruction or damage to Customer Equipment, except as
caused by Licensor's or Company's gross negligence or willful misconduct.
The provisions of this Section shall survive termination of this Agreement.
LIMITATIONS OF LIABILITY
1.17 Damage to Customer Equipment. Neither Licensor nor Company assumes any
liability for, and Customer hereby releases Licensor and Company for, any damage
to, or loss of, any Customer Equipment resulting from any cause (except
Licensor's and/or Company's own willful misconduct or gross negligence), and
Customer assumes full responsibility for protecting the Customer Equipment. In
any event, Licensor and Company shall not be liable for any damage resulting
from any type of conduct if such loss is covered by Customer's property/hazard
insurance. To the extent Licensor or Company is found liable for any damage to,
or loss of, Customer Equipment, such liability will be limited to the
replacement value of Customer Equipment. Neither Licensor nor Company shall be
liable for lost data and software.
1.18 Limitation of Damages. Licensor's and Company's respective liability
arising out of or relating to this Agreement, including without limitation on
account of performance or nonperformance of obligations hereunder, regardless of
the form of the cause of action, whether in contract, tort (including without
limitation negligence), statute or otherwise, shall be subject to the other
terms of this Agreement and shall in no event exceed the amounts paid by
Customer to Licensor for the License Services which are the subject matter of
the claim or paid by Customer to Company for the Company Services which are the
subject matter of the claim or, if it does not relate to specific Services, to
fifty percent (50%) of all amounts paid by Customer to Licensor and/or Company,
as applicable.
** The confidential portion has been omitted pursuant to a request for
confidential treatment. The confidential portion has been filed separately with
the Securities and Exchange Commission.
3
1.19 Waiver of Certain Damages. Notwithstanding anything to the contrary
contained in this Agreement, neither Licensor nor Company shall, under any
circumstances, be liable for any claim for any consequential, incidental,
indirect, punitive, exemplary or special damages of any nature whatsoever, or
for any damages arising out of or in connection with any malfunctions, delays,
loss of data, lost revenues, lost profits, interference, interruption of service
or loss of business or anticipatory profits, regardless of the form of action,
whether in contract, tort (including negligence), strict liability or otherwise.
1.20 Warranty Limitation. Neither Licensor nor Company makes any express
and/or implied warranties of any kind whatsoever, including, but not limited to,
warranties of fitness for a particular purpose, merchantability, noninfringement
of intellectual property rights and title, and any warranties arising from a
course of dealing, usage, or trade practice.
TERMINATION; EXPIRATION
1.21 Termination for Breach. Licensor and/or Company may terminate this
Agreement upon written notice of termination to Customer, if (i) Customer
breaches any material term or condition of this Agreement (including, without
limitation, the failure to pay any Service Fees when due) and, if such breach
arises due to a failure to pay Service Fees, such failure continues for three
(3) business days after such Fees are past due, and, with respect to other
breaches (other than as provided in this paragraph as subsections (ii) and (iii)
below), Customer fails to cure such breach within seven (7) days after receipt
of written notice of breach from the Party sending the notice; (ii) Customer
files a voluntary petition in bankruptcy or commences any voluntary proceeding
relating to insolvency, receivership, liquidation, or composition or assignment
for the benefit of its creditors; or (iii) Customer becomes the subject of an
involuntary petition, in bankruptcy or any involuntary proceeding relating to
insolvency, receivership, liquidation or composition or assignment for the
benefit of creditors if such petition or proceeding is not dismissed within
thirty (30) days of filing.
1.22 Termination by Licensor or by Company. If Customer defaults under this
Agreement as provided in Section 11.1 above, Licensor or Company, as applicable,
at any time thereafter has the right to deny Customer access to the Data Center,
may suspend and terminate the provision of Services and may terminate this
Agreement. In addition to all other remedies, upon termination of this
Agreement, Licensor and Company each reserves the right to disconnect power to
Customer Equipment, and otherwise discontinue Services.
1.23 Removal of Equipment/Security Agreement/Lien on Equipment. Upon the
expiration or earlier termination of this Agreement, Customer shall remove from
the Data Center all Customer Equipment and shall return the Customer Area to
Licensor in the same condition as it was on the Commencement Date, normal wear
and tear excepted, pursuant to a time schedule agreed upon by Licensor and
Customer, or if no schedule is agreed upon, within ten (10) days after the
expiration date or termination date, as applicable. Customer shall not be
permitted to remove any Customer Equipment or retrieve any stored data unless
payment of all Service Fees and other amounts due and payable to Licensor and
Company are current and not in default. If Customer fails to comply with this
paragraph, Customer shall be responsible for all damages and costs incurred by
Licensor and Company, and during any period of holdover, shall also pay Licensor
and Company monthly Service Fees equal to two-hundred percent (200%) of the
monthly Service Fees in effect immediately preceding such holdover. Customer
agrees that Licensor and Company shall each have a security interest/lien on
Customer's Equipment and Customer's stored data as security for payment of all
Service Fees and other amounts due and payable to Licensor and Company, as
applicable.
1.24 Storage of Customer Equipment. If Customer does not remove the
Customer Equipment as required by this Agreement, Licensor may remove Customer
Equipment to a secure storage area, at Customer's expense. Licensor shall not be
liable for any loss or damage caused to Customer or its Customer Equipment or
other property resulting from such removal and storage. If Licensor and Company
do not receive payment of all unpaid Service Fees and other amounts due and
payable to Licensor and Company, and the cost of removal and storage within
sixty (60) days after the end of the Term, Licensor or Company may sell the
Customer Equipment at public or private sale. The proceeds of such sale shall be
applied to costs and to any amounts owing by Customer to Licensor and/or
Company, and any damages incurred by Licensor and/or Company, and the balance,
if any, shall be paid to Customer.
DEFAULT PROVISIONS
1.25 Licensor's Remedies. If Licensor terminates this Agreement because of
any reasons set forth in Section 11.1, or if Customer terminates this Agreement
without just cause, Customer agrees to pay to Licensor, within ten (10) days of
such termination: (i) an amount equal to the total of any and all discounts
given Customer from the License Service Fees as reflected on the License and
Service Provisions Addendum up to the date of termination, and (ii) since the
contract damages suffered by Licensor would be extremely difficult, if not
impossible, to determine, Customer agrees to pay Licensor an amount equal to
one-hundred percent (100%) of the License Service Fees payable for all of the
months remaining on the Term of this Agreement, as liquidated damages and not as
a penalty. These damages shall be in addition to the amounts due pursuant to
Sections 9, 11.3 and 11.4 hereof.
1.26 Company's Remedies. If Company terminates this Agreement because of
any reasons set forth in Section 11.1, or if Customer terminates this Agreement
without just cause, Customer agrees to pay to Company, within ten (10) days of
such termination: (i) an amount equal to the total of any and all discounts
given Customer from the Company Service Fees as reflected on the License and
Service Provisions Addendum up to the date of termination, and (ii) since the
contract damages suffered by Company would be extremely difficult, if not
impossible, to determine, Customer agrees to pay Company an amount equal to
one-hundred percent (100%) of the Company Service Fees payable for all of the
months remaining on the Term of this Agreement, as liquidated damages and not as
a penalty. These damages shall be in addition to the amounts due pursuant to
Sections 9, 11.3 and 11.4 hereof.
DEFINITIONS
"COMMENCEMENT DATE" means, with respect to any License Service, the date
Licensor will begin providing such License Service to Customer, and with
respect to any Company Service, the date that Company will begin providing
such Company Service to Customer, as indicated on the relevant License and
Service Provisions Addendum. The Commencement Date of this Agreement shall
be the first Commencement Date of any License Service or Company Service.
** The confidential portion has been omitted pursuant to a request for
confidential treatment. The confidential portion has been filed separately with
the Securities and Exchange Commission.
4
"COMPANY SERVICES" means all services set forth in the applicable License
and Service Provisions Addendum, including, without limitation (to the
extent set forth in the applicable License and Service Provisions
Addendum): (a) MDF Services (cross-connects through a main distribution
frame); (b) DC Power (direct current power service); (c) AC Power
(alternating current power service and, to the extent applicable,
uninterruptible power supply service) (d) Clocking Service (redundant
clocking source for Customer networks through a managed Stratum II clocking
system); (e) EasyMUX Service (managed multiplexing and de-multiplexing
service at a variety of connection speeds for grooming and aggregation of
circuits); (f) Media Conversion Service (managed media conversion service
that extends the traditional reach limitations of Time Division Multiplexed
and Ethernet circuits); (g) Build-Out Service (build-out services,
including demolition and clean-up, site preparations, electrical and
lighting, layout implementation and finish out of space); (h)
Rack-and-Stack Service (basic installation services for Customer equipment,
including racks, cabinets, cable trays, ladder racks and equipment
chassis); (i) Wiring Services (providing connections at the Data Center
using cables); and (j) Remote Hands Service (repair, maintenance and other
services activated remotely).
"CONFIDENTIAL INFORMATION" means any information disclosed by any Party to
the other Parties, directly or indirectly, in writing, orally or by
inspection of tangible objects that is designated as "Confidential,"
"Proprietary" or some other similar designation, including information
disclosed to a disclosing party by third parties.
"CUSTOMER AREA" means that portion or those portions of the Data Center
made available to customers of Licensor for the placement of Customer
Equipment and equipment of other Licensor customers.
"CUSTOMER EQUIPMENT" means the Customer's computer and network hardware
(not including stored data) and all other tangible equipment placed by or
on behalf of Customer in the Customer Area. The Customer Equipment shall be
identified on a list delivered by Customer to Licensor, as amended in
writing from time to time by Customer.
"DATA CENTER" means the co-location facility operated by Licensor and
located at the address set out in the License and Service Provisions
Addendum.
"FORCE MAJEURE EVENT" is any cause beyond a Party's reasonable control,
including, without limitation, acts of war, acts of God, earthquake,
hurricanes, flood, fire or other similar casualty, embargo, riot, sabotage,
labor shortage or dispute, governmental act, insurrections, epidemics,
quarantines, inability to procure materials or transportation facilities,
failure of power, restrictive governmental laws or regulations,
condemnation, failure of the Internet or other reason of a like nature not
resulting from the actions or inactions of a Party.
"LICENSE AND SERVICE PROVISIONS ADDENDUM" means the form or forms so
entitled, as may be amended, signed by Customer and Licensor and/or
Customer and Company setting out matters including without limitation
License Services, Company Services and Service Fees.
"LICENSE SERVICES" means all services set forth in the License and Service
Provisions Addendum, including without limitation (to the extent set forth
in the applicable License and Service Provisions Addendum) (i) Co-Location
Services (the provision of space as set forth in a License and Service
Provisions Addendum for Customer Equipment pursuant to this Agreement),
(ii) AC Power (alternating current power service and, to the extent
applicable, uninterruptible power supply service) and (iii) the
non-exclusive use of Conduits and Innerducts.
"PARTY(IES)" means the party or parties signing this Agreement.
"SERVICE FEES" means charges for Services as identified in the applicable
License and Service Provisions Addendum.
"TECHNOLOGY" with respect to any Party means such Party's proprietary
technology, including (with respect to Company or Licensor, as applicable)
Services, software tools, hardware designs, algorithms, software (in source
and object forms), user interface designs, architecture, class libraries,
objects and documentation (both printed and electronic), network designs,
know-how, business methods, and any related intellectual property rights
throughout the world (whether owned by such Party or licensed to such Party
from a third party) and also including any derivatives, improvements,
enhancements or extensions of Technology conceived, reduced to practice, or
developed by such Party or a related party during the Term.
"TERM" means the period or period of time, as set forth in the License and
Service Provisions Addendum, during which Licensor and Customer, or Company
and Customer, as applicable, are obligated to perform under this Agreement.
"TERMINATION DATE" means, with respect to any License Service, the date on
which Licensor shall cease to provide such License Service, and with
respect to any Company Service, the date on which Company shall cease to
provide such Company Service, as indicated on the applicable License and
Service Provisions Addendum, or such earlier date which may be determined
in accordance with this Agreement.
MISCELLANEOUS PROVISIONS
1.27 Destruction of Data Center. Licensor may terminate this Agreement by
written notice to Customer in the event (a) the Data Center is wholly or
partially damaged by fire, windstorm, tornado, flood or by similar causes or
casualties, whether or not the License Services or Company Services are
affected, and one or more of the following conditions are present: (i) in
Licensor's reasonable judgment, the repairs cannot be accomplished within 180
days after the date of discovery of the damage, (ii) the holder of any mortgage
or deed of trust or a ground lessor requires the insurance proceeds be used for
purposes other than the repair, (iii) the damage is not fully covered by
Licensor's insurance, (iv) the damage occurs during the final 12 months of the
Term, or (v) the cost to repair exceeds $500,000 in the aggregate, or (b) all or
** The confidential portion has been omitted pursuant to a request for
confidential treatment. The confidential portion has been filed separately with
the Securities and Exchange Commission.
5
any portion of the Data Center is taken by power of eminent domain, or Licensor
grants a deed or other instrument in lieu of such taking. If Licensor does not
terminate this Agreement, Licensor shall have a reasonable time within which to
rebuild or make any repairs. Customer is responsible to repair and replace any
damaged or destroyed Customer Equipment. Licensor and Company shall have no
liability to Customer for any casualty, eminent domain or failure or suspension
of License Services or Company Services, or for any annoyance, inconvenience,
injury or damage related to such event or any repairs or restoration.
1.28 Force Majeure; Court Order; Cancellation. No Party will be liable for
any failure or delay in its performance under this Agreement (other than its
obligation to make a payment of money under this Agreement) due to a Force
Majeure Event, provided that the non-performing Party: (a) gives the other Party
prompt written notice of such cause, and (b) takes all reasonable steps to
promptly correct such failure or delay in performance. Neither Licensor nor
Company shall be liable for its failure or delay in its performance under this
Agreement if such failure or delay is in compliance with and pursuant to an
order issued by a court (or other tribunal) of competent jurisdiction. If either
Licensor or Company is unable to provide applicable Services for a period in
excess of thirty (30) consecutive days for any reason set forth in this section,
any Party may cancel this Agreement upon written notice to the other Parties,
and all Parties shall be released from all liability accruing under this
Agreement from and after the effective date of such cancellation.
1.29 Governing Law; Dispute Resolution. This Agreement shall be governed by
the laws of the State of California, without reference to its conflict of law
provisions. The Parties agree to use commercially reasonable efforts to resolve
all disputes by negotiation. Any such dispute not so settled within thirty (30)
days from the receipt of notice of the dispute will be settled by arbitration
conducted in the city in which the Data Center is located and in accordance with
the rules of the American Arbitration Association. All decisions by any
arbitrator shall be in accordance with the applicable federal, state and local
laws and shall be contained in a reasoned, written opinion. Responsibility for
costs of the arbitration and related attorney's fees and expenses of the Parties
will be as specified in the arbitration award, and the arbitrator(s) is hereby
authorized and directed to take into account the relative merits of the
positions of the respective Parties in allocating such fees, costs, and
expenses. The arbitration award will be final and binding upon the Parties
hereto. In the event a Party applies for a judgment to be entered on an
arbitrator's award, or in the event of any litigation between the parties, then
and in such event the Courts of the jurisdiction (state or country) in which the
Data Center is located will have exclusive jurisdiction over the parties and
subject matter, and the prevailing party shall be entitled to reasonable
attorneys' fees and costs.
1.30 Security Deposit. Licensor and Company shall have the right to obtain
from Customer a security deposit, which shall secure the compliance of Customer
with the terms of this Agreement, in the amount indicated on the applicable
License and Service Provisions Addendum. Licensor and Company shall have the
right to retain that portion of the security deposit necessary to pay for any
damages incurred by Licensor or Company for Customer's breach of this Agreement.
Customer shall immediately replenish any security deposit to the extent used by
Licensor or Company to cure a breach of this Agreement.
1.31 Severability; Waiver. In the event any provision of this Agreement is
held by a tribunal of competent jurisdiction to be contrary to any law or
regulation, the remaining provisions of this Agreement will remain in full force
and effect. The Parties shall not be deemed to waive any of their rights or
remedies under this Agreement unless such waiver is in writing and signed by the
Party to be bound. The waiver of any breach or default of this Agreement will
not constitute a waiver of any subsequent breach or default.
1.32 Assignment. Customer may assign this Agreement as part of a corporate
reorganization, consolidation, merger, or sale of substantially all of its
assets without obtaining Licensor's or Company's consent, provided that the
transferee has at least the same net worth as the original Customer. Except for
the foregoing, Customer may not assign this Agreement or sublicense the Customer
Area or the Services without first obtaining Licensor's and Company's written
consents. In any event, no assignment shall relieve Customer of its obligations
hereunder. Both Licensor and Company may assign this Agreement in whole or in
part without obtaining the consent of Customer or any other Party.
1.33 Notice. Any notice or communication required or permitted to be given
under this Agreement may be delivered by hand, sent by overnight courier, at the
addresses set forth in the License and Service Provisions Addendum(s) or at such
other address as may hereafter be furnished. Such notice will be deemed to have
been given as of the date it is delivered unless such date is a weekend or
holiday, in which event such notice will be deemed delivered on the
next-succeeding business day.
1.34 Relationship of Parties. Licensor and Customer are independent
contractors and this Agreement will not establish any relationship of
partnership, joint venture, employment, franchise or agency between Licensor and
Customer. Company and Customer are independent contractors and this Agreement
will not establish any relationship of partnership, joint venture, employment,
franchise or agency between Company and Customer.
1.35 Entire Agreement; Counterparts. This Agreement constitutes the
complete and exclusive agreement between the Parties with respect to the subject
matter hereof, and supersedes and replaces any and all prior or contemporaneous
discussions, negotiations, understandings and agreements, written and oral,
regarding such subject matter. This Agreement may be executed in counterparts.
1.36 Language. If this Agreement is translated into another language, the
translation is for the convenience of the Customer and the provisions of the
version of this Agreement set forth in English shall prevail for all purposes.
1.37 Headings. Headings used in this Agreement are for reference only.
1.38 Binding Effect. This Agreement will bind and inure to the benefit of
each Party and each Party's successors and permitted assigns.
1.39 Delivery of Certificate. Customer shall, at any time and from time to
time, upon not less than ten (10) days' prior written notice from Licensor
and/or Company, execute, acknowledge and deliver to the requesting party (i.e.
to Licensor and/or Company) a statement in writing certifying the following
information, (but not limited to the following information in the event further
information is requested by Licensor and/or Company): (i) that this Agreement is
** The confidential portion has been omitted pursuant to a request for
confidential treatment. The confidential portion has been filed separately with
the Securities and Exchange Commission.
6
unmodified and in full force and effect (or, if modified, stating the nature of
such modification and certifying that this Agreement, as modified, is in full
force and effect); (ii) the dates to which the rental and other charges are paid
in advance, if any; (iii) the amount of Customer's security deposit, if any; and
(iv) acknowledging that there are not, to Customer's knowledge, any uncured
defaults on the part of Licensor and/or Company under this Agreement, and no
events or conditions then in existence which, with the passage of time or notice
or both, would constitute a default on the part of Licensor and/or Company under
this Agreement, or specifying such defaults, events or conditions, if any are
claimed. It is expressly understood and agreed that any such statement may be
relied upon by any prospective purchaser or encumbrancer of all or any portion
of the Data Center and/or Building. Customer's failure to deliver such statement
within such 10-day period shall constitute an admission by Customer that all
statements contained therein are true and correct. Additionally, Customer's
failure to deliver such statement within such 10-day period shall constitute a
material breach and default by Customer under this Agreement.
[signatures on next page]
MIDNET USA, INC.
By: /s/ Xxxx Xxxx
------------------------------
Name: Xxxx Xxxx
----------------------------
Title: Chief Operating Officer
---------------------------
**
By:
------------------------------
Name: **
Title: Vice President
**
By:
------------------------------
Name: **
Title: Vice President
** The confidential portion has been omitted pursuant to a request for
confidential treatment. The confidential portion has been filed separately with
the Securities and Exchange Commission.
7
LICENSE AND SERVICE PROVISIONS ADDENDUM
This document is being executed pursuant to that certain License Agreement and
Service Agreement ("Master Agreement") dated July 23, 2004 by and between **
("Licensor"), ** ("Company") and MIDNET (USA, INC.), A NEVADA CORPORATION
("Customer").
By signing this document on behalf of the Customer, the signing party represents
and warrants that he or she has the unconditional authority to execute this
document on behalf of the Customer and that, upon such execution, this document
is binding upon the Customer. This document is governed by the terms and
conditions set forth in the Master Agreement. Any undefined terms herein shall
have the same meaning as those set forth in the Master Agreement.
TERMS OF LICENSE AGREEMENT DESCRIPTION
1. Date: August 4, 2004
2. Building/Data Center: ** Los Angeles, California **
3. Term:
3.1 Length of Term: Twelve (12) months
3.2 Commencement Date: September 1, 2004
3.3 Expiration Date: August 31, 2005
4. Telecommunication Installations:
4.1 Cabinet: One (1) nine foot (9')
cabinet (the "SPACE") located
in the **, as further set
forth in EXHIBIT A to this Addendum.
4.2 AC Electrical Power: One (1) 110 volt 20-amp AC circuit.
4.3 Conduits: None.
4.4 Innerducts: None.
5. Customer Fees: Non-Recurring Fees Monthly License Fees
Months during Term Monthly License Fee
(a) Cabinet: ** ** **
(b) AC Electrical Power: ** ** **
(c) Conduits: N/A
(d) Innerducts: N/A
6. Security Deposit: **
7. Payments Due to
Licensor Upon Execution: **
TOTAL DUE TO LICENSOR ON EXECUTION: **
** The confidential portion has been omitted pursuant to a request for
confidential treatment. The confidential portion has been filed separately with
the Securities and Exchange Commission.
TERMS OF SERVICE AGREEMENT
Non-Recurring Monthly Term of
8. Services Scope of Services Charge Recurring Charge Service
(a) MDF Services Customer agrees to pay NRC - Cross MRC - Cross
the charges set forth Connections Connections:
herein for one (1)
fiber cross-connection First fiber cross First fiber cross Term of
on the MDF during the connection: connection: the Master
entire term of the NRC: ** MRC: ** Agreement
Agreement, and Company
agrees to provide the
above-referenced
cross-connection as
requested by Customer.
Company shall also Additional Cross Additional Cross
provide Customer with Connection NRC: Connection MRC:
additional Copper: ** Copper: **
cross-connections on Coaxial: ** Coaxial: **
the MDF upon Fiber: ** Fiber: **
Customer's request,
from time to time, and
at any time, during
the term of the
Agreement, at the
pricing herein,
subject to
availability at the
time of the request.
(b) DC Power Services N/A
(c) UPS Power Services N/A
(d) Clocking Services N/A
(e) EasyMUX Services N/A
(f) Media Conversion Services N/A
(g) Build-Out Services N/A
(h) Rack and Stack Services N/A
(i) Wiring Services N/A
(j) Remote Hands Service N/A
9. Payments Due to Company Upon Execution: Total Non-Recurring Charges ($**) and First Month's MRC's ($**)
TOTAL DUE TO COMPANY ON EXECUTION: $**
MISCELLANEOUS
10. Address of Customer for Notices: MidNet (USA, Inc.)
0000 Xxxxxxxxx Xxxxx, Xxxxx 000
Xxxx, Xxxxxx 00000
Attention: Xxxxxxx Xxxxxxxx
with a copy to:
MidNet (USA, Inc.)
0000 Xxxxxxxxx Xxxxxx, Xxxxx 000, XXX 130
Xxxxxxxxxx, XX 00000
Attention: Carrier Relations
** The confidential portion has been omitted pursuant to a request for
confidential treatment. The confidential portion has been filed separately with
the Securities and Exchange Commission.
11. Address of Customer for Billing: MidNet (USA, Inc.)
0000 Xxxxxxxxx Xxxxxx, Xxxxx 000, XXX 130
Xxxxxxxxxx, XX 00000
Attention: Accounts Payable
12. Address of Licensor and **
Company for Notices:
with copies to:
**
13. Address of Licensor for Payment: **
14. Address of Company for Payment: **
MIDNET (USA, INC.)
By: /s/ Xxxx Xxxx
-----------------------------
Name: Xxxx Xxxx
---------------------------
Title: Chief Operating Officer
--------------------------
** **
By: /s/ ** By: /s/ **
----------------------------- -----------------------------
Name: ** Name: **
Title: Vice President Title: Vice President
** The confidential portion has been omitted pursuant to a request for
confidential treatment. The confidential portion has been filed separately with
the Securities and Exchange Commission.
