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EXHIBIT 10.29
HSANET CABLE AFFILIATE AGREEMENT
THIS CABLE AFFILIATE AGREEMENT ("Agreement") made the 15th day of
October, 1997, between
HIGH SPEED ACCESS NETWORK, INC. ("HSAnet"), a Delaware corporation
with its principal place of business at Littleton, Colorado,
A N D
XXXX MULTIMEDIA PARTNERSHIP
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PRINT NAME
a Pennsylvania general partnership (hereafter referred to as ("Operator"),
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TYPE OF ENTITY
with its principal place of business at Hazleton, Pennsylvania.
B A C K G R O U N D
A. The Operator is the sole and exclusive owner of the cable television
system(s) in the geographic areas identified on Schedule A attached hereto and
incorporated herein by reference (the "System"). The Operator desires to augment
its business by utilizing the technical capacity of the System to permit
customers of HSAnet to utilize the System for purposes of internet access and
high speed data transmission.
B. HSAnet is in the business of providing its customers with internet
access and high speed data transmission through various sources, including
without limitation, through dial-up ISP systems and cable television plants and
systems ("HSAnet Service" or "Service"). HSAnet desires to use the Operator's
System to deliver the HSAnet Service to its customers.
C. The Operator and HSAnet believe that it is in their mutual interests
to utilize Operator's System to provide HSAnet customers with access to the
HSAnet Service.
NOW, THEREFORE, in exchange for good and valuable consideration, the
receipt and adequacy of which is hereby acknowledged, and intending to be
legally bound hereby, the parties agree as follows:
1. HSANET SERVICE. Subject to the terms and provisions of this
Agreement,
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Operator hereby grants to HSAnet, and HSAnet hereby accepts from the Operator,
the exclusive right to use the System to deliver to HSAnet customers the HSAnet
Service during the term of this Agreement (all recipients of HSAnet Services
within the geographic region of Operator's System shall constitute "HSAnet
Customers").
2. TERM. The initial term of this Agreement shall commence on the date
of this Agreement and continue for a period of five (5) years from the date the
HSAnet Service is first utilized by HSAnet customers ("Commencement Date"). The
term of the Agreement shall thereafter be automatically renewed for successive
five (5) year renewal terms unless written notice of termination is given by
either party to the other at least six (6) months prior to the expiration of the
initial or applicable renewal term, in which case this Agreement shall terminate
at the end of such initial or applicable renewal term.
3. SYSTEM REQUIREMENTS FOR SERVICE. Operator acknowledges and
understands that in order to deliver the HSAnet Service to HSAnet customers, (a)
the System must satisfy the technical requirements set forth in Exhibit B
attached hereto and incorporated herein by reference ("System Data
Requirements") and (b) HSAnet shall have no responsibility, duty or obligation
regarding the System satisfying the System Data Requirements. The Operator does
covenant and agree that it shall promptly undertake any measures to cause the
System to attain and maintain the System Data Requirements during the period of
time of this Agreement. Exhibit B sets forth the time frame agreed upon by the
Operator and HSAnet for the Operator to bring the System into conformity with
the System Data Requirements.
4. HSANET RESPONSIBILITIES FOR HSANET SERVICE. Upon completion of
System Data Requirements by the Operator, HSAnet will promptly undertake any
measures specified in Exhibit B as HSAnet Responsibilities in order to permit
Operator's System to provide the HSAnet Services to HSAnet customers. Except as
is expressly made applicable to HSAnet in Exhibit B and labeled as HSAnet
Responsibilities, HSAnet shall have no responsibility, duty or obligation
regarding the System's capacity to provide the HSAnet Services to HSAnet
customers.
5. COMPENSATION AND PAYMENTS. Subject to the terms and provisions of
this Agreement, effective on and after the Commencement Date, HSAnet shall pay
to the Operator an amount equal to twenty-five (25%) percent of the gross
revenue of HSAnet Customers (the "Fee").
Within forty-five (45) days following the end of each and every
calendar month during the Term thereof, HSAnet shall deliver to the Operator, to
the attention of Xxxxxx X. Xxxx, Vice President and Chief Operating Officer, a
statement showing the computation of the Fee in accordance with Exhibit C,
containing true and accurate information for the preceding calendar month as to
(i) the total number of HSAnet Customers in Operator's System franchise area,
(ii) HSAnet gross revenue for use of the HSAnet Service in Operator's System
franchise area, and (iii) a calculation of the Operator's Fee.
HSAnet shall keep true and accurate books and records relating to this
Agreement and Operator's Fee in accordance with generally accepted accounting
principles, consistently applied.
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During the Term hereof and for one year thereafter, at Operator's expense,
Operator or its designated representatives may, at HSAnet's offices and at
reasonable times within regular business hours and from time to time, subject to
suitable protections relating to confidentiality and non-disclosure, inspect and
make extracts and copies of any such books and records in order to determine the
accuracy of any or all of HSAnet's statements rendered under this Agreement. In
the event that any audit undertaken by HSAnet in accordance with its rights
hereunder discloses a discrepancy of five (5%) percent or more with respect to
the amount of the Fees set forth on any of HSAnet's statements, HSAnet shall
reimburse Operator for all costs incurred by Operator in connection with such
audit.
6. DELIVERY OF HSANET SERVICE. HSAnet shall use its best efforts to
provide a high quality HSAnet Service to its customers. Any and all costs of
whatever kind or nature incurred with respect to the maintenance of Operator's
plant shall be borne by and shall be the sole responsibility of Operator.
7. DISTRIBUTION OF HSANET SERVICE. Operator covenants and agrees that
it shall distribute the HSAnet Service in its entirety, without delay,
interruption, alteration, addition, deletion or editing of any portion thereof
and in a manner which will permit the reception by HSAnet Service customers in
the same manner it provides services to its cable television customers. Operator
shall maintain suitable facilities to HSAnet for the retransmission of HSAnet
Service throughout the System and shall comply with all applicable local, state
and federal laws, rules, regulations and franchises as required in connection
with the operation of its System.
Operator shall cooperate with HSAnet to ensure that HSAnet Service is
received only by parties who are HSAnet Service customers.
Operator shall not, and shall not authorize others to, receive,
retransmit or use by any means, whether now known or hereafter devised, any part
of the HSAnet Service without the prior written authorization of HSAnet.
Operator shall take all reasonable precautions to prevent unlawful reception,
retransmission or use of the HSAnet Service. If Operator becomes aware that any
unauthorized third party is receiving or transmitting any part of the HSAnet
Service, Operator shall notify HSAnet in writing of the name and address of such
third party.
8. OWNERSHIP AND USE OF HSANET EQUIPMENT AND SOFTWARE. Subject to
Operator's rights relating to the HSAnet Equipment, if its loan to HSAnet is not
repaid as required by Operator, the HSAnet Equipment and software which has been
supplied and installed by HSAnet in Operator's System under this Agreement shall
at all times be the property of HSAnet. Subject to the foregoing relating to
Operator's loan to HSAnet, Operator agrees to immediately return to HSAnet in
good condition at the termination of this Agreement all HSAnet Equipment subject
to reasonable wear and tear. Operator will use reasonable care to avoid damaging
HSAnet Equipment, and will not move, relocate, alter, sell, lease, license,
assign, encumber or otherwise tamper with the HSAnet Equipment.
Operator acknowledges that the names and Marks "HSAnet", "High Speed
Access Network" and other HSAnet trademarks and logos and variations
incorporating the same, and
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titles of programs contained in the HSAnet Service are the exclusive property of
HSAnet and that Operator has not and will not acquire any proprietary rights
thereto by reason of the Agreement. Operator shall have no rights to use such
names, marks, logos, variations or titles except at the times and in a manner
expressly approved by HSAnet. Operator shall not publish or disseminate any
material which violates any restriction imposed by HSAnet.
9. MARKETING AND PROMOTION. Operator covenants and agrees that it shall
promote the HSAnet Service to cable subscribers of the System with the aim of
maximizing the number of HSAnet Service customers. HSAnet shall provide Operator
with promotional and marketing advice and shall make available to Operator, at
Operator's expense, such sales and promotional materials as HSAnet and Operator
mutually consider appropriate. Operator's payments pursuant to this paragraph
shall be made within thirty (30) days of receipt of HSAnet's invoice for same.
Operator shall not delete or alter, or authorize the deletion or alteration of,
any copyright or trademark notice, logo, credit or any other notice included in
any materials delivered pursuant to this paragraph.
10. FORCE MAJEURE. HSAnet shall not be liable to Operator for failure
to supply the HSAnet Service or any part thereof, nor shall Operator be liable
to HSAnet for failure to provide the HSAnet Service or any part thereof, by
reason of any act of God, labor dispute, non-delivery by third parties,
breakdown of facilities, legal enactment, governmental order or regulation or
any other cause beyond their respective control.
11. DEFAULT AND TERMINATION. Due and timely performance of both parties
is of the essence hereof. If HSAnet defaults in the making of any payments
hereunder or if either party defaults in the performance of any of its material
obligation hereunder and such default shall not be cured within five (5) days
after written notice thereof to HSAnet, or if either party becomes insolvent, or
if a petition under any bankruptcy act shall be filed by or against either party
(which petition, if filed against Operator, shall not have been dismissed within
thirty (30) days thereafter), or if either party executes an assignment for the
benefit of creditors, or if a receiver is appointed for the assets of either
party, or if either party takes advantage of any insolvency or any like statute
(any of the above acts are hereinafter called "Event of Default"), then the
other party may, in addition to any and all other rights which that party may
have, terminate this Agreement by giving written notice to the other party at
any time after the occurrence of any Event of Default. HSAnet shall,
nevertheless, remain liable for all monies due or to become due to Operator
pursuant hereto.
12. MISCELLANEOUS All rights not specifically granted to Operator
hereunder in and to the HSAnet Service are reserved to HSAnet for HSAnet's sole
and exclusive use, disposition and exploitation and are exercisable by HSAnet
any time, from time to time, in any location and by any means whatsoever.
All notices, statements and other communications given hereunder shall
be made in writing by telegraph, telex, personal delivery or by mailing the same
by certified mail, return receipt requested, or by next day express delivery in
a postpaid wrapper, addressed to the other as aforesaid, and the date of such
personal delivery, telegraphing, telexing, the next day if by express delivery,
or the date five (5) days after such mailing shall be deemed the date on which
such notice is effective.
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Neither this Agreement nor any rights or obligations hereunder may be
assigned by HSAnet without prior written consent of Operator, and such
assignment shall not relieve the assignor of its obligations hereunder. Any
purported assignment without such consent shall be null and void and not
enforceable against Operator. This Agreement and the rights and obligations of
the parties hereunder shall be binding upon and shall inure to the benefit to
HSAnet and Operator and their respective legal representatives, and permitted
successors in interest and assigns.
Any waiver by either party of any breach of any term or condition
hereof shall be effective only if in writing and such writing shall not be
deemed to be a waiver of any subsequent or other breach, term or condition of
this Agreement.
With respect to the subject matter of this Agreement, this Agreement
and the Exhibits hereto (i) set forth the entire agreement between the parties
hereto and any parties who have in the past or who are now representing either
of the parties hereto,
(ii) supersede all prior understanding and communications between the parties,
oral or written, and (iii) constitute the entire agreement between the parties.
Operator and its employees and agents have maintained and will
maintain, in confidence, the terms and conditions of this Agreement, as well as
all data, summaries, reports or information of all kinds, whether oral or
written, acquired, devised or developed in any manner by or from HSAnet
personnel or HSAnet files, and have not and will not reveal the same to any
persons not employed by HSAnet, except (i) at the written direction of HSAnet,
(ii) to the extent necessary to comply with law or a valid order of a court of
competent jurisdiction, in which event Operator shall so notify HSAnet as
promptly as practicable (and, if possible, prior to making any disclosure) and
in all cases shall seek confidential treatment of such information; (iii) as
part of its normal reporting or review procedure to its parent company, auditors
and its attorneys, provided such parent company, auditors and attorneys agree to
be bound by the provisions of this paragraph and (iv) in order to enforce its
rights pursuant to this Agreement.
HSAnet and its employees and agents have maintained and will maintain,
in confidence, the terms and conditions of this Agreement, as well as all data,
summaries, reports or information of all kinds, whether oral or written,
acquired, devised or developed in any manner by or from Operator personnel or
Operator files, and have not and will not reveal the same to any person not
employed by Operator, except (i) at the written direction of Operator, (ii) to
the extent necessary to comply with law or valid order of a court of competent
jurisdiction, in which event, HSAnet shall so notify Operator as promptly as
practical (and if possible, prior to making any disclosure) and in all cases
shall seek confidential treatment of such information, (iii) as part of its
normal reporting or review procedure to its parent company, auditors and its
attorneys, provided such parenting company, auditors and attorneys agree to be
bound by the provisions of this paragraph and (iv) in order to enforce its
rights pursuant to this Agreement.
Nothing contained herein shall be deemed to create a relationship of
joint venture, associates, principal and agent or partnership between the
parties hereto and neither party shall hold itself out of the contrary. Each
party is acting as principal hereunder.
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This Agreement and the rights and obligation of the parties hereunder
shall be governed by and construed in accordance with the laws of Maryland
applicable to contracts entered into and fully performed therein.
XXXX MULTIMEDIA PARTNERSHIP, HIGH SPEED ACCESS NETWORK, INC.
BY CABLE TV, INC.
its managing general partner
BY: /s/ XXXXXX X. XXXX BY: /s/ XXX XXXXXXX
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XXXXXX X. XXXX, VP & COO XXXXXX XXXXXXX, PRESIDENT
DATE: October 15, 1997 DATE: October 15, 1997
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SCHEDULE A
CABLE TELEVISION SYSTEMS
Xx. Xxxx'x Xxxxxx - Xxxxxxxx
Xxxx Xxxxxx Xxxxxx - Virginia
Western Cablevision, Inc. (Arizona)
