EPOCH NETWORKS, INC.
BRANDED SERVICES AGREEMENT
This Branded Services Agreement ("Agreement") is entered into as of
this 3rd day of February, 1999, between Epoch Networks, Inc.,
d.b.a. Epoch Internet ("Epoch"), and GTC Telecom, Inc. ("Branded
Provider").
WHEREAS, Epoch is an Internet access provider with proprietary
technology, software, systems and engineering;
WHEREAS, Branded Provider desires to offer an Internet access
product in its own name or the name of one or more designees;
WHEREAS, Branded Provider desires to market Internet services in the
markets agreed to by the parties hereto as set forth on Attachment A
hereto ("Markets"), and as may be set forth in the POP Expansion
Agreement attached as Exhibit A hereto ("POP Expansion Agreement"); and
WHEREAS, Epoch desires to extend its marketing efforts and establish
relationships throughout the United States with Branded Provider and
other branded providers who shall re-brand and market Epoch products
and services to their customers;
NOW, THEREFORE, in consideration of the mutual promises contained
herein, it is hereby agreed:
1. Appointment of Branded Provider.
Epoch appoints Branded Provider (on a non-exclusive and
non-territorial basis) to act as an authorized Epoch Branded
Provider in the Markets to resell Epoch's products and services in
its own name during the term of this Agreement, subject to all the
terms and conditions herein, and Branded Provider accepts such
appointment as an authorized Epoch Branded Provider, subject to all
the terms and conditions herein.
2. Services.
The specific products and services of Epoch that Branded Provider
desires to resell and that Epoch agrees to provide ("Services"), and
the terms and conditions on which the Services and any optional
services shall be provided, shall be designated by the parties
hereto in this Agreement and in the applicable Attachments hereto.
3. Epoch Responsibilities.
Epoch shall use commercially reasonable efforts to provide the
Services pursuant to this Agreement, and, to the extent necessary,
shall provide the following services and products in connection
therewith:
a) Provide customized Internet Services listed
in the Attachments ( "Branded Services"). The
Services may also include branded dial-up
software (the "Branded Software") and branded
customer service for customers. The costs of
programming, packaging, duplicating, obtaining
third-party components and branding of the
Branded Software shall be borne by Branded Provider.
b) Provide registration, mail and other
servers sufficient to support the Branded
Software customers.
c) Provide a network operations center for
dedicated and hosted customers on a "24X7" basis
at (888) NET-DOWN, or such other telephone number
as shall be supplied to Branded Provider or its
customers.
d) Provide the billing information in a form
and timeframe sufficient for Branded Provider to
xxxx its customers.
e) Provide network monitoring and engineering
for Epoch's network and maintain such network.
f) Provide Internet equipment and backbone
infrastructure at the Network Access Points
("NAP") to service connections between the NAPs
and Epoch's Points of Presence ("POP").
g) Provide Internet protocol ("IP") addresses
to Branded Provider and its customers, in
accordance with Epoch's normal IP policies, as
such policies may be modified by Epoch from time
to time, as needed in providing dedicated access
services.
h) Provide, at the sole cost of Branded
Provider, marketing support for the Branded
Software.
i) Provide and install equipment and obtain
locations for POPs, which shall be established
and configured based on the projections of
Branded Provider set forth on Attachment B hereto
and in accordance with the terms and conditions
of the POP Expansion Agreement, attached as
Exhibit A hereto.
j) Make available Internet University
training, in both classroom and online formats
provided by Epoch, to Branded Provider for
training Branded Provider's sales, marketing and
project management personnel, for which Branded
Provider shall pay reasonable fees, plus any
necessary travel expenses, for such training.
4. Branded Provider Responsibilities.
In consideration for its appointment as a Branded Provider,
Branded Provider, in addition to the other responsibilities
included herein and in the applicable Attachments, agrees to
the following responsibilities:
a) Solicit customers to use Epoch's Internet
services and maintain a trained and capable sales
and support organization to solicit and register
customers and support Epoch efforts to assure
customer satisfaction.
b) Allocate necessary funding and personnel to
support Branded Provider's product development,
integration, marketing, sales and training with
respect to Branded Services and products.
c) Present to potential customers of Branded
Provider an Internet Service Application (using
only Epoch's form of Internet Service
Application, as the same may be updated by Epoch
or changed or adapted for Branded Providers'
specific needs, only with prior written
authorization from Epoch). Branded Provider shall
work with and assist such customers in completing
the form. Such Application shall constitute
authorization from Branded Provider to Epoch to
provide such customer with the Services on the
terms set forth therein.
d) Set prices for products and services
provided to its customers independent of any
prices charged by Epoch to its customers.
e) Exercise effective control over Branded
Provider's customers, and offer such customer
billing and other services as it deems
appropriate. Branded Provider shall be
responsible for the collection of any charges
pertaining to customer access fees, as well as
other services rendered by Epoch to customer.
f) Take no action inconsistent with this
Agreement, and reasonably support Epoch's efforts
in providing Internet service to Branded
Provider's customers.
5. Fees and Minimum Monthly Revenue Commitment.
a) Fees.
Epoch shall provide the Services to Branded
Provider's customers and xxxx Branded Provider in
accordance with fees set forth on Attachment A.
Branded Provider agrees to pay Epoch not less
than the amount of the Minimum Monthly Revenue
Commitment, as such amount may be modified in
accordance with the Ramp Schedule set forth in
Attachment A. Upon execution of this Agreement,
Branded Provider shall deposit with Epoch an
amount of funds equal to Branded Provider's
Minimum Monthly Revenue Commitment referred to in
Section 5 c) hereof ("Deposit"). If at the time
of any application of the Deposit as provided
herein Branded Provider is in compliance with the
terms and conditions hereof, (a) an amount equal
to up to fifty percent (50%) of the Deposit shall
be applied to charges for the development and
customization of the Branded Software and b) the
balance of the Deposit shall be applied to
Branded Provider's Monthly Minimum Revenue
Commitment for and after the month in which
Branded Provider's obligation under such Ramp
Schedule has reached one hundred percent (100%).
Notwithstanding the foregoing, users may be
charged amounts in addition to the prices
provided for herein as needed in Epoch's sole
discretion to regulate the use of customers in
accordance with Epoch's Acceptable Use Policy
("AUP"), control abuse of Internet services and
comply with regulatory requirements or changes of
law or regulations.
b) Billing and Payment.
Standard recurring charges (e.g., for Internet
access) shall be billed in advance and
usage-based or consulting services shall be
billed in arrears. All invoices are payable
within thirty (30) days of receipt. After thirty
(30) days, unpaid invoices are subject to Epoch's
then-current late payment charge plus interest at
the rate of one and one-half percent (1.5%) per
month on any outstanding balance, or the maximum
permitted by law, plus all expenses of
collection. If Branded Provider disputes any
amount due Epoch under this Agreement or any of
the Attachments hereto (the "Disputed Amount"),
Branded Provider shall pay the Disputed Amount
and provide Epoch with written notice setting
forth the Disputed Amount and Branded Provider's
reasons for disputing such amount. Branded
Provider shall receive a credit against Branded
Provider's next invoice for the portion, if any,
of the Disputed Amount charged in error.
c) Minimum Monthly Revenue Commitment.
In consideration of Epoch providing Services to
Branded Provider at a wholesale rate, Branded
Provider agrees to take or pay for the Services
as set forth herein. Subject to the effect of
the Ramp Schedule set forth in Attachment A
hereto, as determined by the Start Date defined
therein ("Start Date"), Branded Provider shall
pay Epoch at least the amount per month for
Services set forth in Attachment A as Branded
Provider's Minimum Monthly Revenue Commitment.
For any month in which actual revenues received
by Epoch are less than Branded Provider's Minimum
Monthly Revenue Commitment, Branded Provider
shall pay to Epoch the amount of the difference
between the amount of revenues actually received
and such Minimum Monthly Revenue Commitment.
Monthly Revenues for this purpose shall include
only revenues received with respect to dedicated
services, dial-up services, hosting and
co-location services, lease payments from rental
equipment and charges for optional services
provided by Epoch.
6. Epoch Trademarks and Related Matters.
Except as otherwise provided in writing by Epoch, Branded
Provider shall have no right, title or interest in or to, or
license to use, any trademarks, tradenames or other
intellectual property in or to which Epoch now or hereafter
has any proprietary right or license (collectively, the "Epoch
Marks"), all of which shall remain Epoch's exclusive property.
Branded Provider shall not at any time challenge, or
encourage or support the challenge of another person of,
Epoch's rights in and to the Epoch Marks, nor obtain or seek
to obtain any rights therein. Any use of the Epoch Marks by
Branded Provider or any person employed by or contracting with
Branded Provider shall constitute a material breach of this
Agreement, shall be cause for termination of this Agreement
by Epoch in accordance with Section 8 hereof and shall
constitute irreparable business harm, the amount of which
would be difficult to ascertain, and, therefore, Branded
Provider agrees that Epoch shall have the right to apply to a
court of competent jurisdiction for an order restraining any
such breach (whether or not this Agreement is terminated by
Epoch) and for such other relief as Epoch shall request. The
right of Epoch to enjoin a breach or violation of this
Agreement is in addition to the remedies at law or in equity
otherwise available to it. Branded Provider covenants, which
covenant shall survive the termination of this Agreement, not
to use the name "Epoch," any of the Epoch Marks or other
trademarks or other intellectual property confusingly similar
thereto in any manner or for any purpose whatsoever.
7. Confidentiality, Non-Disclosure, Trade Secrets and
Intellectual Property Rights.
a) The parties hereto each possess certain
confidential and proprietary information
(collectively "Confidential Information"),
including, but not limited to, information
relating to customers; subscribers; prospective
subscriber leads; sales and marketing procedures
and techniques; financial information; personnel
management; facilities; trade secrets;
affiliates; procedures; processes; systems;
software; equipment or network configurations;
past, present, or future research or development;
and business affairs; regardless of the form in
which Confidential Information is stored or
preserved, whether conveyed orally or in writing,
and whether or not designated as confidential and
proprietary. The parties hereto may desire to
disclose Confidential Information to each other
subject to the terms and conditions of this
Agreement.
b) Each Party shall (a) hold all Confidential
Information received from the other Party in
confidence using the same degree of care that the
recipient uses to protect its own confidential
and proprietary information of like kind (but in
no event less than reasonable care); (b) use such
Confidential Information only for the purposes
set forth herein; (c) reproduce such Confidential
Information only to the extent necessary to
support such purpose; and (d) restrict disclosure
of and access to such Confidential Information to
those employees who have a need to know this
Confidential Information for performance of the
activities contemplated by this Agreement and who
are advised of the confidential nature of the
Confidential Information. This obligation to
maintain Confidential Information in confidence
shall continue for a period of three (3) years
following the termination of this Agreement.
c) "Confidential Information" shall not
include any information which: (a) is or becomes
available to the public through no breach of this
Agreement; (b) was previously known by the
recipient without any obligation to hold it in
confidence; (c) is wholly and independently
developed by the recipient without the use of
Confidential Information of the other Party; (d)
is received from a third party free to disclose
such information without restriction; (e) is
approved for release by written authorization of
the disclosing Party, but only to the extent of
and subject to such conditions as may be imposed
in such written authorization; or (f) is
required by law or regulation to be disclosed,
but only to the extent and for the purposes of
such required disclosure order.
d) If either Party becomes legally required to
disclose any Confidential Information of the
other Party, the recipient shall, to the extent
possible, provide the disclosing Party with
prompt written notice of such requirement so that
the disclosing Party may seek a protective order
or other appropriate remedy and/or waive
compliance with respect to that disclosure. In
any case, the recipient will disclose only that
portion of the Confidential Information which,
based on the reasonable advice of counsel, is
legally required to be disclosed and will
otherwise exercise all reasonable efforts to
obtain reliable assurance that confidential
treatment will be accorded the Confidential
Information.
e) This Agreement does not convey any right of
ownership in the Confidential Information or in
any copyrights, trademarks, or other rights
relating thereto.
f) The Parties acknowledge that a breach of
the obligations contained in this Agreement shall
constitute a material breach of this Agreement
and cause irreparable harm to the disclosing
Party for which monetary damages would be
inadequate. Accordingly, in addition to any
other remedy to which the disclosing Party may be
entitled at law or in equity, the disclosing
Party shall be entitled to injunctive relief
(without any requirement to post a bond) to
prevent breaches of any provision of this
Agreement and to specifically enforce the terms
and provisions hereof. The right of the
disclosing Party to enjoin a violation of this
Agreement shall be in addition to the remedies at
law or in equity otherwise available to the
disclosing Party.
g) Immediately upon the termination of this
Agreement for any reason, the recipient shall
return to the disclosing Party or, at the
disclosing Party's option, destroy any materials
or copies of Confidential Information provided
with or generated in connection with this
Agreement including, but not limited to, any
other information containing or based upon, in
whole or in part, any Confidential Information.
h) From and after the date of this Agreement,
until the date which is six (6) months after the
termination hereof for any reason, neither party
shall hire any employees, officers or directors
of the other party to this Agreement, or solicit
any such person to terminate his or her
employment with the other party to this Agreement.
8. Term and Termination of Agreement.
a) Term.
The term of this Agreement shall be three (3)
years from the Start Date, and shall
automatically be renewed for successive one (1)
year periods, unless either party provides the
other with written notice not less than sixty
(60) days prior to the expiration of the then
current term.
b) Termination.
i) By Branded Provider. Branded
Provider may terminate this Agreement (a)
without "cause," by providing Epoch with
one hundred and twenty (120) days prior
written notice of branded Provider's
intent to terminate this Agreement and (b)
for "cause" if Epoch breaches any material
term of this Agreement.
ii) By Epoch. Epoch may terminate this
Agreement for "cause" if Branded Provider
breaches any material term of this
Agreement, which shall include, but is not
limited to, disparaging any product,
service or personnel of Epoch, failing to
timely provide the forecasts required
pursuant to subsection 10b) hereof or
abusing, or suffering its customers to
abuse, Epoch's network.
iii) Notice. The party terminating this
Agreement for "cause" shall give the other
party written notice of termination, which
notice shall include an explanation that
clearly describes the event(s),
occurrence(s) or existing fact(s)
constituting such cause. Upon such
notice, the other party shall have (a)
sixty (60) days to cure any non-monetary
breach (or if such breach cannot be
corrected within such sixty (60) days,
such party shall have commenced and be
continuing diligently to cure such breach)
and (b) five (5) days to cure any monetary
breach. If any such breach is not cured
within such period, this Agreement shall
terminate, unless the party giving such
notice waives such breach in writing.
c) Effects of Termination.
i) Termination Fee. If Branded
Provider shall terminate this Agreement
pursuant to Section 8b)i)(a) above,
Branded Provider shall, on or before the
effective date of termination pursuant to
such notice, pay Epoch a termination fee
equal to seventy-five percent (75%) of the
sum of Branded Provider's Minimum Monthly
Revenue Commitments for all then remaining
months in the term of this Agreement.
ii) Liquidated Damages. If Epoch
terminates this Agreement for "cause,"
Branded Provider shall pay Epoch as
liquidated damages and not as a penalty an
amount equal to the sum of Branded
Provider's Minimum Monthly Revenue
Commitments for all then remaining months
in the term of this Agreement.
iii) Amounts Due. If this Agreement is
terminated for any reason, any and all
amounts due Epoch through the date of
termination shall be or continue to be due
and payable notwithstanding any such
termination.
9. Representations and Warranties.
Except as otherwise provided below, Branded Provider represents
and warrants to Epoch and Epoch represents and warrants to Branded
Provider as follows:
a) Such Party has all requisite power and
authority, including all necessary licenses, to
engage in such Party's business and enter into this
Agreement and consummate the transactions
contemplated herein.
b) This Agreement has been duly executed by such
Party and constitutes a legal, valid and binding
obligation of such Party, enforceable against it in
accordance with its terms.
c) There is no suit, action or litigation,
administrative, arbitration or other proceeding or
governmental investigation against or affecting such
Party that may, severally or in the aggregate,
materially and adversely affect its ability to
perform any of its obligations under this Agreement.
d) No consent or permission of any person is
required for or with respect to the execution and
delivery by such Party of this Agreement or the
consummation by it of the transactions contemplated
herein, and neither the negotiation or execution of
this Agreement nor the consummation of such
transactions by Branded Provider shall require, or
give any person or entity a valid claim to, the
payment of any royalty, brokerage commission,
finder's or other fee or commission to any person or
entity other than Epoch. Branded Provider hereby
agrees to indemnify, defend and hold harmless Epoch
and its successors and assigns from and against and
in respect of any such claim.
e) Neither the execution and delivery of this
Agreement by such Party nor the consummation of the
transactions contemplated herein shall: (i) conflict
with or result in any violation of or constitute a
default (or an event that, with the giving of notice
or the passage of time or both, would constitute a
default) under any law or any material instrument,
lien or agreement to which such Party is subject or
a party or by which such Party or its properties or
assets are bound or affected; or (ii) otherwise
materially adversely affect the consummation of the
transactions contemplated herein.
f) Neither Branded Provider nor any affiliate of
Branded Provider has received any notice, or
otherwise has knowledge of, any claims (or any facts
or prior act(s) upon which such a claim or assertion
could be based) with respect to any of Branded
Provider's trademarks used in connection with the
Branded Services, including but not limited to
claims that any of such Branded Provider's
trademarks are invalid or are defective in any way.
Branded Provider has taken all steps and done all
acts necessary to protect Branded Provider's right,
title and interest therein and the use thereof by
Epoch, which use shall be on a royalty-free and
non-exclusive basis.
g) Such party is the owner or licensee of all
proprietary software and intellectual property
provided by such party under the terms of this
Agreement. To the extent that Branded Provider
requests Epoch to develop new software which is
deemed proprietary by and to Branded Provider,
Branded Provider shall own all rights and interest
to such software; provided, however, that Epoch
shall have a non-exclusive license to use such
software, which Epoch may use without charge.
Branded Provider does not own, and shall not
acquire, any rights to software which is proprietary
or licensed to Epoch, even though Branded Provider
may have paid reasonable fees for Epoch to customize
such Epoch software for Branded Provider's use
pursuant to this Agreement, including, but are not
limited to, CustomDial, SmartList and xxx.xxx.
h) There exists no present condition or state of
facts or circumstances known to such Party or any of
its affiliates that would prevent it from performing
or fulfilling its obligations under or contemplated
in this Agreement.
10. Covenants of Branded Provider.
Branded Provider hereby covenants and agrees with Epoch as follows:
a) Branded provider shall pay on a monthly
basis the applicable fees, subject to Branded
Provider's Minimum Monthly Revenue Commitment, in
accordance with Section 5 hereof.
b) Branded Provider agrees that Epoch may at
any time refuse service to any customer that:
(i) is using Border Gateway Protocol, (ii) uses
the User Diagram Protocol layer (streaming);
(iii) violates or attempts to violate Epoch's AUP
or other generally accepted Internet protocols
(e.g., "spamming"); (iv) abuses Epoch's network
or the Internet through use of the Services; or
(v) breaches any provision of Epoch's Internet
Service Application (the substantive provisions
of which shall be incorporated in Branded
Provider's agreement with its customers, which
agreement shall be furnished to Epoch for its
approval prior to its use).
c) Branded Provider shall provide Epoch with a
monthly forecast, in the form of Attachment B,
that specifies the sales forecast for the
succeeding four (4) months for each type of
Service for each Market in which Branded Provider
shall be selling such services. Epoch may rely on
such information to build infrastructure to meet
Branded Provider's forecasted needs. Branded
Provider may request in writing to Epoch that
Epoch add to the capacity of an existing POP or
establish a new POP, which request shall be
responded to by Epoch within thirty (30) days of
its receipt. Epoch may, in its sole discretion,
decline to expand the capacity of an existing
facility or build a new POP. If Branded Provider
requests that Epoch open any new POP or add
capacity to an existing POP, Branded Provider and
Epoch shall enter into the POP Expansion
Agreement attached hereto as Exhibit A, pursuant
to which Branded Provider shall agree to pay
Epoch a minimum dollar amount set forth in the
POP Expansion Agreement in addition to the
Minimum Monthly Revenue Commitment. Epoch hereby
acknowledges that Branded Provider shall not be
held responsible for any inaccuracies with
respect to good faith forecasts; and Branded
Provider acknowledges that the failure to timely
provide any of such forecasts shall constitute a
material breach of this Agreement by Branded
Provider.
d) Branded Provider hereby acknowledges and
agrees that all IP addresses are, and shall
remain, the property of Epoch; and IP addresses
shall not be used by Branded Provider after
expiration or termination of this Agreement and
shall be surrendered and returned to Epoch at
such time.
e) Branded Provider shall comply with the
terms and conditions contained in all attachments
that are incorporated herein.
f) If, during the term of this Agreement,
Branded Provider learns of any claim against or
infringement of any of Branded Provider's
trademarks used in connection with Branded
Services or any claim of unfair competition or
other challenge to Branded Provider's ownership
of such Branded Provider's trademarks or Epoch's
right to use any of such Branded Provider's
trademarks, Branded Provider shall promptly
notify Epoch thereof. During the term of this
Agreement, Branded Provider shall have the
obligation, at its own cost and expense, to take
such action as is necessary to restrain any such
infringement or to defend any other such claim or
challenge. Epoch shall cooperate with Branded
Provider in connection therewith, provided that
branded Provider shall pay all of Epoch's
reasonable expenses in connection therewith. If
Branded Provider is unable or unwilling to
provide such defense, Epoch may elect (but shall
not be obligated) to terminate this Agreement for
cause (as defined herein) and seek any of the
remedies and damages provided for therein or
otherwise available at law or in equity.
g) Branded Provider shall comply in all
material respects with all laws applicable to
Branded Provider's business, including reselling
the Services.
h) Branded Provider hereby acknowledges and
agrees that Epoch shall have the right to
reasonably determine (and Branded Provider hereby
agrees to comply with) all policies or procedures
relating to the implementation of any new
technology relating to or affecting the Services
or the responsibilities of the parties hereunder.
i) Branded Provider agrees that upon
termination of this Agreement it shall cease the
resale of Services hereunder, and further agrees
that Branded Provider and Epoch shall remain
liable for the provision of Services to Branded
Provider's customers until the expiration of the
agreements with Branded Provider's customers. If
Branded Provider fails to pay timely the amounts
specified in section 8 c) hereof, Branded
Provider agrees that Epoch may, in its sole
discretion, assume such agreements with
customers, after which such customers shall
become customers of Epoch, and Branded Provider
shall receive no revenues with respect to such
customers.
j) Branded Provider shall not during the term
of this Agreement, or after the expiration or
termination hereof, disparage any Epoch
personnel, products or services.
k) If Branded Provider furnishes Epoch with a
written request to disconnect the Internet access
of any customer of Branded Provider, Epoch shall
have a reasonable period to disconnect such
customer, and Branded Provider agrees that Epoch
shall have no liability whatsoever for any
consequences resulting from such disconnection,
and Branded Provider shall indemnify Epoch for
any such liability.
Branded Provider shall execute and deliver to Epoch such
further documents and take such further actions, including
supplying Epoch at Branded Provider's expense such
information, specifications and other items, as Epoch may
reasonably request from time to time in order to render the
Services.
11. Limitation Of Liability.
NOTWITHSTANDING ANYTHING CONTAINED IN THIS AGREEMENT OR
OTHERWISE, (I) EPOCH SHALL NOT BE LIABLE WITH RESPECT TO ANY
SUBJECT MATTER OF THIS AGREEMENT UNDER ANY CONTRACT,
NEGLIGENCE, STRICT LIABILITY OR OTHER LEGAL OR EQUITABLE
THEORY FOR ANY AMOUNT IN EXCESS OF ONE HUNDRED FIFTY THOUSAND
DOLLARS ($150,000) IN THE AGGREGATE AND (II) NEITHER EPOCH NOR
BRANDED PROVIDER SHALL BE LIABLE WITH RESPECT TO ANY SUBJECT
MATTER OF THIS AGREEMENT UNDER ANY CONTRACT, NEGLIGENCE,
STRICT LIABILITY OR OTHER LEGAL OR EQUITABLE THEORY FOR ANY
INCIDENTAL, CONSEQUENTIAL, EXEMPLARY OR PUNITIVE DAMAGES OF
ANY KIND, INCLUDING, WITHOUT LIMITATION, LOSS OF DATA OR
FILES, PROFIT, GOODWILL, TIME, SAVINGS OR REVENUE. SOME
STATES DO NOT ALLOW THE EXCLUSION OR LIMITATION OF INCIDENTAL
OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATION AND
EXCLUSIONS MAY NOT APPLY.
12. Electronic Communications Privacy Act Notice (18 USC
2701-2711).
EPOCH MAKES NO GUARANTEE OF CONFIDENTIALITY OR PRIVACY OF ANY
COMMUNICATION OR INFORMATION TRANSMITTED ON ITS NETWORK OR ANY
NETWORK ATTACHED TO ITS NETWORK. Epoch shall not be liable
for the privacy of e-mail addresses, registration and
identification information, disk space, communications,
confidential or trade-secret information, or any other content
stored on Epoch's equipment, transmitted over networks
accessed by the Services, or otherwise connected with Branded
Provider's or its customers' use of the Services.
13. Warranty Disclaimer.
Branded Provider acknowledges that the Services are being
provided hereunder by Epoch at Branded Provider's own risk.
Epoch, its employees, affiliates, agents, third-party
information providers, merchants, licensors and the like do
not warrant that the Services shall be uninterrupted or error
free; nor do they make any warranty as to the results that may
be obtained from use of the Services, or as to the accuracy or
reliability of any content, product, service or merchandise
provided through the Services. Epoch does not warrant that any
access number provided to Branded Provider's customers for
connecting to the Internet or receiving the Services shall be
a local call from such users' area code and exchange. THE
SERVICES ARE PROVIDED ON AN "AS IS, AS AVAILABLE" BASIS. TO
THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, NO WARRANTIES,
EXPRESS OR IMPLIED, INCLUDING, BUT NOT BY WAY OF LIMITATION,
THOSE OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR
OF NON-INFRINGEMENT, ARE MADE WITH RESPECT TO THE SERVICES OR
ANY CONTENT OR SOFTWARE INCLUDED THEREIN. SOME STATES DO NOT
ALLOW LIMITATIONS ON HOW LONG AN IMPLIED WARRANTY LASTS, SO
THE ABOVE LIMITATIONS MAY NOT APPLY TO BRANDED PROVIDER.
14. Indemnification.
Branded Provider and Epoch each agree to be responsible for
their own acts and those of their subordinates, employees,
agents and subcontractors during the performance of this
Agreement. Subject to the provisions of Section 11 hereof,
each party hereby indemnifies the other against any and all
losses, costs, damages, claims, expenses or liabilities
arising from any breach of such party's obligations and duties
as set forth in this Agreement.
15. Binding Arbitration.
Epoch and Branded Provider agree to settle by
arbitration any disagreement or controversy, which cannot be
settled by negotiation, arising between Epoch and Branded
Provider and any of their respective subordinates, employees,
agents or subcontractors relating to this Agreement and/or any
customer serviced by Epoch. Such arbitration shall be
conducted, with venue in Orange County, California, according
to standard arbitration rules then in effect of the American
Arbitration Association. Initiation of arbitration may be made
by serving written notice to the other party. This arbitration
agreement is binding upon all parties. Any award the
arbitrator makes shall be final and binding on all parties and
judgment on such award may be entered in any court having
jurisdiction. Furthermore, the prevailing party shall be
entitled to recover reasonable attorney's fees.
16. General.
a) Severability. If any provision of this
Agreement or the application of any such provision
to either party or to any circumstances shall be
determined by any court of competent jurisdiction to
be unenforceable to any extent, the remainder hereof
or the application of such provision to the party or
circumstances other than those to which it is so
determined to be invalid and unenforceable, shall
not be affected thereby, and each provision hereof
shall be valid and shall be enforced to the fullest
extent permitted by law.
b) Notices. All notices, consents, demands,
requests, approvals and other communications which
are required or may be given hereunder shall be in
writing and shall be deemed to have been duly given
on the date of service if personally delivered or
sent by fax (with a confirmation copy to be sent by
certified first class mail), or on the third day
after mailing if mailed certified first class mail,
postage prepaid and addressed as designated below.
By giving to the other party at least ten (10) days'
written notice thereof, either party and its
respective successors and assigns shall have the
right, from time to time and at any time during the
term of this Agreement, to specify as its address
any other address within the United States of America.
c) Cooperation. The parties hereto agree to
cooperate in taking such actions and to execute and
deliver such additional documents and instruments as
may be reasonably necessary or convenient to
effectuate the purposes of this Agreement.
d) Taxes; Shipping and Other Expenses. Branded
Provider shall pay all applicable sales and use
taxes arising from or related to Branded Provider's
purchase or lease of any equipment from Epoch,
together with all
shipping expenses reasonably
incurred by Epoch in providing such equipment to
Branded Provider. Except as expressly provided
herein to the contrary, the fees and expenses of
Branded Provider and Epoch in connection with the
execution and delivery of this Agreement and the
consummation of the transactions contemplated hereby
shall be paid by the party incurring such fees.
e) Attorneys' Fees. In the event that either of
the parties hereto (or any successor thereto)
resorts to legal action to enforce, defend or
interpret any of the terms or the provisions of this
Agreement, the prevailing party shall be entitled to
receive, in addition to such other remedies as shall
be awarded to it in such legal action, reimbursement
from the non-prevailing party for all reasonable
attorneys' fees and all other costs incurred in
commencing or defending such action. In addition,
the prevailing party shall be entitled to recover
from the non-prevailing party post-judgment
attorneys' fees incurred by the prevailing party in
enforcing a judgment against the non-prevailing
party. Notwithstanding anything in this Agreement to
the contrary, the provisions of the preceding
sentence are intended to be severable from the
remainder of this Agreement, shall survive any
judgment rendered in connection with the aforesaid
legal action and shall not be merged into any such
judgment.
f) Relationship of the Parties. Epoch and
Branded Provider intend that Branded Provider is an
independent contractor. The mode, manner, method and
means employed by Branded Provider and the
performance of the terms and conditions of this
Agreement shall be of Branded Provider's selection
and under the sole control of Branded Provider. The
parties acknowledge that personnel employed by
Branded Provider to perform services under this
Agreement are not Epoch employees and that Branded
Provider assumes full and sole responsibility for
the acts of its employees, agents and independent
contractors. Branded Provider and Epoch acknowledge
that their relationship arising from this Agreement
does not constitute or create a general agency,
joint venture, partnership, employment relationship
or franchise between them and Branded Provider does
not have, nor shall Branded Provider hold itself out
as having, any authority to make any agreement or
incur any liability or bind Epoch in any manner.
g) Entire Agreement; Amendment. This Agreement,
together with the applicable Attachments and
Exhibits hereto, embodies the entire agreement and
understanding of the parties hereto with respect to
the subject matter hereof. This Agreement cannot be
amended or terminated orally, and may be amended or
terminated only in writing duly executed by both of
the parties hereto.
h) Waivers. No delay or omission by either party
in exercising any right or power accruing upon the
non-compliance or failure or performance by the
other party hereto of any provisions of this
Agreement shall impair any such right or power, or
to be construed to be a waiver thereof. A waiver by
either party of any of the covenants, conditions or
agreements hereof to be performed by the other must
be in writing and signed by the party who is waiving
such covenant, condition or agreement.
i) Counterparts. This Agreement may be executed
in any number of counterparts, each of which shall
be deemed an original, but all of which together
shall constitute one and the same document.
j) Headings and Usage. Headings of the sections
of this Agreement are for reference purposes only
and shall not affect the construction or
interpretation of any of its provisions. The use of
the singular shall, where applicable, also refer to
the plural and the use of the plural shall, where
applicable, also refer to the singular, as the case
may be.
k) Assignment. This Agreement may not be
assigned by Branded Provider without the consent of
Epoch. Epoch may assign its duties and obligations
hereunder to any entity that acquires all (or
substantially all) of the assets or stock of Epoch,
provided such assignee assumes, and faithfully
performs, the duties and obligations of Epoch
hereunder.
l) Applicable Law. This Agreement shall be
governed by, and construed and enforced in
accordance with, the internal laws of the State of
California, exclusive of the choice of laws
provisions thereof.
m) Successors and Assigns. This Agreement shall
be binding on and inure to the benefit of the
parties and their permitted successors and assigns.
All provisions of this Agreement which by their
nature should survive expiration or termination,
including, without limitation, accrued rights to
payment, warranty disclaimers, limitations of
liability, confidentiality and proprietary
information, shall survive such expiration or
termination until such time that the obligations are
satisfied in full or by their nature expire.
n) Force Majeure. Epoch shall not be held liable for
failure to fulfill its obligations hereunder if such
failure is due to causes beyond its reasonable control
(Force Majeure), including, without limitation, actions or
failures
to act of any third-party upon whom Epoch
reasonably relies for services (e.g. Local Exchange
Carriers, IntereXchange Carriers, etc.), act of God, fire,
earthquake, catastrophe, legislation, governmental
prohibition or regulation or change therein, hacker,
national emergency, riot, insurrection, war, strike,
lockout, work stoppage or other labor difficulty, or other
cause reasonably unforeseen in the normal course of
business. The time for any performance required under this
Agreement shall be extended by the delay incurred as a
result of any such act of Force Majeure and Epoch shall in
no way be responsible nor liable for any damages or losses
incurred as a result of such act(s).
o) Confidentiality. Neither party shall publicize or
disclose the existence of this Agreement or its terms
without the consent of the other, and in the event of such
agreement, all press release materials shall be reviewed
and approved by the other party. The failure of either
party to exercise in any respect any right provided for
herein shall not be deemed a waiver of any further rights
hereunder.
p) No Assurances Regarding Profitability. Branded
Provider acknowledges that it has read this Agreement and
understands and accepts the terms, conditions and
covenants contained herein. Epoch expressly disclaims the
making of, and Branded Provider acknowledges that it has
not received or relied on, any guaranty, express or
implied, as to the amount of commissions or other revenue
that it may earn as a result of its activities pursuant to
this Agreement.
IN WITNESS WHEREOF, the parties have executed this Agreement
as of the date first written above.
EPOCH NETWORKS, INC. GTC TELECOM, INC.
By: /s/Xxxx Xxxxxxx By: /s/Xxxx Xxxxxx
Name: Xxxx Xxxxxxx Name: Xxxx Xxxxxx
Its: President Its: CEO
Address: 00000 Xxx Xxxxxx Xxxxxx, 0xx Xxxxx Address:
0000 Xxxxxx Xxxxxx, #X0
Xxxxxx, XX 00000 Xxxxx Xxxx, XX 00000
Tel: 000-000-0000 Tel: 000-000-0000
Fax: 000-000-0000 Fax: 000-000-0000
Attachment A - Branded Provider Price List, Monthly Revenue
Commitment and Ramp Schedule
Attachment B - Markets and Forecast Addendum
Exhibit A - POP Expansion Agreement
Copyright, 1998 Epoch Networks, Inc.
Attachment A
Branded Provider (Private Label) Product Price List,
Monthly Revenue Commitment
And Ramp Schedule
DEDICATED INTERNET ACCESS
Branded Provider shall receive twenty percent (20%) off current
Epoch retail prices.
Dedicated Pricing:
Epoch Retail Price 1 Price to Branded Provider 1
Service Monthly Activation Fee Monthly Activation Fee
56K $240 $350 $192 $280
128K $395 $500 $316 $400
256K $750 $700 $600 $560
384K $950 $950 $760 $760
512K $1,250 $1,000 $1,000 $800
T-1 (1.54 Mbs)$1,795 $1,500 $1,436 $1,200
T-3 (up to 45 Mbs) Quote only$7,500 Quote only $6,000
BGP Premium A.Q. A.Q. A.Q. A.Q.
ISDN - 64K $240 $495 $192 $396
(1 B Channel)
ISDN - 128K $480 $990 $384 $792
(2 B Channels)
Metered T-1 $2,000 $1,600
Monthly $250 $200
Access
Usage $.035/Mb n/a 2
Monthly Cap $1,895 $1,421 2
Notes:
1.The "Monthly Charge" shall be for Epoch Internet service
only; the "Activation Fee" shall
be for Epoch set-up; LEC monthly; cross-connect and installation
charges shall be quoted
separately and charged in addition to all Epoch fees and charges.
2. The usage charge shall be calculated by applying the
percentage amount of the discount to
the total monthly usage based on the retail rate.
Branded Provider may purchase the following services at the prices
set forth below.
Digital Subscriber Line (DSL) 1
Line 160K 200K 416K 768K 1.1M
Speed
Monthly $75 $125 $135 $165 $199
Local
Access2
Monthly $85 $85 $85 $160 $160
Internet for for for for for
Access2 10GB 10GB 10GB 20GB 20GB
per per per per per
Month Month Month Month Month
Excess Usage $0.04 $0.04 $0.04 $0.04 $0.04
per Mb per Mb per Mb per Mb per Mb
Activation $375 $375 $375 $375 $375
Notes:
1. Netopia routers/CSU/DSU for use with the Services may
be leased from Epoch at $35 per month each. Branded
Provider shall pay Epoch the amount of its purchase price
for any leased equipment not returned to Epoch within
ninety (90) days after termination of the related Internet
services agreement.
2. Start-ups require payment of the monthly access fees
for the first and last months.
Customer Router & CSU (CPE) - Extremely Low Rental
Packages, See Below For Details
99% Uptime Guarantee - No Charge
Local Loop (LEC) Provisioning - No Charge
NOC Support at "888-NET-DOWN" - No Charge for 24 X
7 Network Support
E-Mail @ Customer Domain - a dedicated line customer
may choose to have Epoch manage and host e-mail services
at a custom domain. Each e-mail account shall be charged
a one-time set-up fee of $20/user and an annual account
maintenance charge of $8 per account. This is not
inclusive of applicable domain name registration or
transfer fees.
Lifetime Equipment Guarantee - No Charge (for all
equipment provisioned through Epoch)
DIAL-UP INTERNET ACCESS
The prices shown below are prices to be charged to Branded
Provider.
Dial-up Pricing
Service (Epoch POPs): Price
Unlimited1 9600 to $13.00
56K2 Analog
ISDN Dial-up Pricing
1 B Channel $25.50 month
Usage 20 hours
Excess $.0163/min
2 B Channels $25.50 month
Usage 10 hours
Excess $.0323/min
Notes:
1. Unlimited dial-up access is subject to control of
abusive network users as defined by the Epoch Acceptable Use
Policy.
2. 56K analog service, where available, is standardized
on Xxxxxxxx xxxx sets and K56Flex technology.
Online Interactive Registration - No Charge
Authentication - No Charge
UseNet News - No Charge
E-Mail @ Epoch Vanity Domains - No Charge
E-Mail @ Branded Domain - see description below
MyWebSite (personal, -xxx.xxxxx.xxx.xxx $0 set-up
non-branded web sites) $.25 per month per account
(plus excess)
xxx.xxxxx.xxxxx.xxx - $7,500 set-up
DIAL-UP SOFTWARE
CustomDial Plus Software - Costs: (dial-up access software
branded and customized)
Dial-up Access Software- custom branded for each Branded Provider
Epoch shall develop customized dial-up software based upon
Epoch's standard configuration options. Epoch's customized
software shall perform user account creation, including one
e-mail account, and user set up based upon Epoch's standard
configuration options through on-line, toll-free interaction
with one (1) of Epoch's account registration servers. A
one-time charge of $5,000 shall be charged for Windows 95/98,
and an additional charge of $2,500 shall apply for NT. Any
additional modifications to standard customization shall be
billed at $200 per hour and shall be subject to programmer
availability.
Epoch shall make reasonable efforts to complete software
customization within eight (8) weeks of receipt of executed
customization guide and all required artworks/logos, which
shall be provided by Branded Provider. Any changes made to
the requirements, documents or artwork shall result in
additional programming time required and thus delay this
timeline. Each customer shall receive in its e-mail inbox a
branded, custom "Welcome Letter" upon successful registration
of a dial-up Internet account and the creation of a customized
start page/partial service offered via Snap!, for which
Branded Provider shall pay $500 in the aggregate.
Snap!- Dial-up Web Site Launch Page:
A central, customized start page shall be the first thing to
appear when Branded Provider's customers log onto the Internet.
The start page shall have links and graphics specific to
Branded Provider's company. All web development is done on a by
quote only basis. A one time fee of $2500 shall be charged to
configure and develop the base functionality of this "page."
All artwork and logos are to be provided by Branded Provider at
the time of customization/configuration guide review. Any
additional programming shall be at a charge of $200/hour and be
subject to availability of programming resources. Additional
web hosting fees shall apply.
E-Mail @ Branded Domain
Each version of the customized Internet software may be
customized to contain one (1) or more "domains" for e-mail
addresses (i.e., xxxxxxxx@xxxxxxxxxx.xxx). Epoch shall charge
a one (1) time fee of $1,000 per unique domain for customer
e-mail addresses to configure mail servers and systems to host
mail services at the unique domain. Domain name registration
and transfer fees charged by Epoch and other parties may also
apply.
WEB HOSTING AND SERVER C0-LOCATION
Branded Provider shall receive twenty percent (20%) off
current Epoch retail prices.
Retail Pricing Hosting & Co-Location
Service: Mo Fee Set up fee Meter Fee (per Mb)
Hosting $25 $250 $.0400 /Mb for 0 - 25,000Mb,
$.015/Mb thereafter
Co-Lo's1:
1/6 Rack $105 $600
1/3 Rack $180 $900
1/2 Rack $270 $1,200
Full Rack $540 $1,500
Set-up Fees:
Co-Lo's1:
Ethernet $750 $.015/Mb up to 170,000 Mb,
$.005/Mb thereafter
$6,000 cap
FDDI $7,500 $.008/Mb up to 150,000 Mb,
$.001/Mb thereafter
$75,000 cap
Fast Enet $3,500 $.008/Mb up to 150,000 Mb,
$.001/Mbthereafter
$75,000 cap
1. Epoch data centers only. (Subject to availability)
CUSTOMER SERVICE
Dial Up Internet Technical Support (DISC): (Branded with
customer greeting) This service includes technical support for
dial up customers only and shall be subject to Epoch's standard
dial up support service levels.
Epoch shall customize its Dial-up Internet Support Center for
Branded Provider's customers for a one (1) time charge of $5,000
per unique branding (telephone number and custom greeting)
consistent with Epoch's standard branded support program. The
customer support center shall include technical support seven
(7) days per week, and Epoch shall provide monthly statistical
data consistent with its standard reporting practices. At
Branded Provider's request, Epoch shall provision a unique toll
free number for support of a particular customer base. The set
up charge for this service shall be at quote, calls to this toll
free number shall be charged an additional $0.09 per minute if
provided by Epoch. Branded Provider may provision its own toll
free number.
Cost bundled with dial-up access price listed above.
Dedicated Internet Support (Network Operations Center) NOC:
Phone answered generically. For dedicated Fractional T-1 to T-3
customers only.
Network Operations Center Support maybe accessed via
a toll free call to "0-000-XXX-XXXX"
Network Support shall included support hours of 24
hours per day, 7 days a week.
Network monitoring status on a 24 x 7 basis
Proactively contacts clients to inform them of line
status issues (only if problems are detected)
TRAINING AND SUPPORT SERVICES
Training Courses and Support Services:
Internet 101 (online)
Internet 101 delivers a basic introduction to the Internet.
Since the course is online, students must have access to
computer with access to the Internet and a user account with a
password. Students may login and interact with the information
at anytime and from anywhere in the world. Course fee is $10
per person. (See xxxx://xxx.xxxxxx.xxx for more information)
Internet Overview (1/2 day classroom)
Internet Overview is a brief overview of the Internet Industry
and the competitive marketplace. The course can be given
within Epoch's training facility or off-site. Course fee is
$500 per person. (Course fees are exclusive of travel &
expenses.)
Internet Essentials (2 day classroom)
Internet Essentials is a detailed review of the Internet
industry, technology, products, applications, market
strategies, and selling connectivity. This course can be given
within Epoch's training facility or off-site. Course fee is
$1000 per person. (Course fees are exclusive of travel &
expenses.)
Internet Credibility (2 day classroom)
Internet Credibility is a comprehensive look at the more
technical aspects of Internet technology and is designed to
enhance the abilities of experienced Internet Sales
Representatives & Sales Engineers. The course can be given
within Epoch's training facility or off-site. Course fee is
$1500 per person. (Course fees are exclusive of travel &
expenses.)
PROGRAM SET-UP CHARGES
FTP Set-up:
Epoch shall provision a secure and unique FTP site where
billing and other branded service information shall be
posted on a mutually agreed time frame. A one (1) time
set-up fee of $500 shall be charged for each FTP site plus
an annual maintenance fee of $250
Registration Interface:
Epoch shall provide a Web interface to the Epoch's servers
(including, but not limited to Radius, mail, and user
database servers), so that Branded Provider may add or
delete dial-up Internet access users at its discretion. A
one (1) time programming and set-up fee of $2,500 shall be
charged for each unique configuration of the Registration
interface. This interface shall be subject to Epoch's
security provisions, which shall include at a minimum a
secure user ID and password access to this utility as well
as dedicated access to Epoch's network for this utility.
Other Programming
Any other systems programming or customization not
included shall be done on a case by case basis, upon
customer request.
Strategic Account Management & Project Management (Epoch
tasks)
Branded Provider's dedicated single point of contact to
ensure that all tasks are managed, and proactively
completed during the branding process. This person shall
also be Branded Provider's ongoing support for the term of
the Agreement, to ensure that Branded Provider and its
customers are serviced to the highest levels in the
industry today.
Miscellaneous Services:
Domain Name Registration - $100 per domain name
charge to Branded Provider (does not include InterNic fee
whichshall be billed directly to the customer by the "Nic")
Domain Name Transfer - $75 per domain name transfer
REVENUE COMMITMENT, DISCOUNT LEVEL AND RAMP SCHEDULE
Minimum Monthly Revenue Commitment in recurring revenues: $25,000
Contract Ramp: (As a percentage of the Monthly Minimum Revenue
Commitment.)
Month one (1) shall commence upon the first day of the
first month commencing after full execution of the Branded
Services Agreement to which this is attached ("Start Date").
Month 1 0% Month 4 30% Month 7 term 100%
Month 2 0% Month 5 50%
Month 3 10% Month 6 80%
Taxes, Surcharges, and Fees:
Prices listed above do not include federal, state, or local
sales or uses taxes, nor do they include surcharges or fees
which may be imposed by governmental, regulatory, or other
entities. Branded Provider will be liable for any and all such
taxes, fees or surcharges imposed upon Epoch in connection with
or arising from the provision of products and/or services under
the Agreement.
Attachment B
Markets and Forecast
The geographic markets are:
Forecasted customers and usage is: (list to be provided to
Epoch monthly per the Agreement)
Access Type # @ POP- Market 1 Market 2 Market 3
Dial-up: Analog
ISDN
Dedicated: 56K
128K
256K
384K
T-1
T-1+
Other:
EXHIBIT A
POP EXPANSION AGREEMENT
THIS POP EXPANSION AGREEMENT (the "Agreement") is entered into
this ___ day of _____, 1998, by and between Epoch Networks, Inc.,
d.b.a. Epoch Internet, a California corporation ("Epoch") and
__________, a __________ corporation ("Branded Provider").
Capitalized terms not defined herein shall have the meaning set
forth in the Reseller Agreement.
WHEREAS, Epoch and Branded Provider have entered into that
certain Branded Services Agreement dated __________ (the "Reseller
Agreement").
WHEREAS, Branded Provider desires to resell Services of Epoch
in locations not currently serviced by Epoch and Epoch desires to
expand the sale of its services.
NOW, THEREFORE, in consideration of the mutual premises
contained herein, it is hereby agreed:
1. Establishment of POP
On or before __________, 199_, Epoch shall establish a POP to
provide analog dial-up Internet and dedicated connectivity access at
speeds of at least 1.5 megabits per second (the "POP") in a service
area designated as ____________________ (the "Market") under the
following terms and conditions:
(a) Branded Provider shall not be in default under the
terms of the Reseller Agreement;
(b) Epoch shall include not less than one (1) local dial-up
access number for dial-up POPs and shall take steps consistent with
its regular business practices and market forecasts provided by
Branded Provider to ensure timely delivery of Internet services to
the customers of Branded Provider. Epoch may, at its option, choose
to make additional local dial-up numbers available in the Market;
(c) Epoch shall notify Branded Provider, in writing, when
Services are available in the Market; and
(d) Epoch shall be solely responsible for the support and
maintenance of its network in the Market. In addition, Epoch may
solicit customers to use the extension of its network in the Market
through its standard sales and marketing channels.
Epoch may decline to extend its network into the Market if
telecommunications services and facilities appropriate for such
network extension are not available within the Market.
2. Price for Usage
Branded Provider shall pay Epoch current rates for Services
as set forth in the Reseller Agreement, provided that revenues
generated from such POP shall not be included in the revenue
commitments set forth in Attachment A of the Reseller Agreement.
3. Ramp Schedule
Branded Provider shall guaranty Revenues to Epoch from the
Market of at least the amount set forth below during the term of
this Agreement:
Months After Monthly
Installation Revenue
1 0
2 0
3-15 $4,000
For any month in which actual revenues received by Epoch are
less than the amount set forth in the table above, Branded Provider
shall pay to Epoch the amount of the difference between the amount
of revenues actually received and such amount. Monthly Revenues for
this purpose shall include only revenues received with respect to
dedicated services, dial-up services, hosting and co-location
services, lease payments from rental equipment and charges for
optional services provided by Epoch.
4. Term
The term of this Agreement shall be for fifteen (15) months
after the installation of the POP. If the term of the Reseller
Agreement expires prior to the expiration of this Agreement, Epoch
may extend the term of the Reseller Agreement with respect to the
Market only to be coterminous herewith.
5. Conflict with Reseller Agreement
The terms and conditions of the Reseller Agreement as they
may be supplemented hereby shall remain in full force and effect.
6. LIMITATION OF LIABILITY
NOTWITHSTANDING ANYTHING CONTAINED IN THIS AGREEMENT OR
OTHERWISE, (I) EPOCH SHALL NOT BE LIABLE WITH RESPECT TO ANY
SUBJECT MATTER OF THIS AGREEMENT OR THE RESELLER AGREEMENT
UNDER ANY CONTRACT, NEGLIGENCE, STRICT LIABILITY OR OTHER
LEGAL OR EQUITABLE THEORY FOR ANY AMOUNT IN EXCESS OF THE
AMOUNT SET FORTH IN THE RESELLER AGREEMENT IN THE AGGREGATE
AND (II) NEITHER EPOCH NOR BRANDED PROVIDER SHALL BE LIABLE
WITH RESPECT TO ANY SUBJECT MATTER OF THIS AGREEMENT UNDER ANY
CONTRACT, NEGLIGENCE, STRICT LIABILITY OR OTHER LEGAL OR
EQUITABLE THEORY FOR ANY INCIDENTAL, CONSEQUENTIAL, EXEMPLARY
OR PUNITIVE DAMAGES OF ANY KIND, INCLUDING, WITHOUT
LIMITATION, LOSS OF DATA OR FILES, PROFIT, GOODWILL, TIME,
SAVINGS OR REVENUE. SOME STATES DO NOT ALLOW THE EXCLUSION OR
LIMITATION OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE
ABOVE LIMITATION AND EXCLUSIONS MAY NOT APPLY.
7. Electronic Communications Privacy Act Notice (18
USC 2701-2711)
EPOCH MAKES NO GUARANTEE OF CONFIDENTIALITY OR PRIVACY
OF ANY COMMUNICATION OR INFORMATION TRANSMITTED ON ITS NETWORK
OR ANY NETWORK ATTACHED TO ITS NETWORK. Epoch shall not be
liable for the privacy of e-mail addresses, registration and
identification information, disk space, communications,
confidential or trade-secret information, or any other Content
stored on Epoch's equipment, transmitted over networks
accessed by the Services, or otherwise connected with Branded
Provider's or End Users' use of the Services.
8. Warranty Disclaimer
Branded Provider uses the services provided hereunder
at Branded Provider's own risk. Epoch, its employees,
affiliates, agents, third-party information providers,
merchants, licensors and the like do not warrant that the
Services shall be uninterrupted or error free; nor do they
make any warranty as to the results that may be obtained from
use of the Services, or as to the accuracy or reliability of
any Content, product, service, or merchandise provided through
the Services. Epoch does not warrant that any access number
provided to End Users for connecting to the Services shall be
a local call from End Users' area code and exchange. THE
SERVICES ARE PROVIDED ON AN "AS IS, AS AVAILABLE" BASIS. NO
WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT BY WAY OF
LIMITATION, THOSE OF MERCHANTABILITY, FITNESS FOR A PARTICULAR
PURPOSE OR OF NON-INFRINGEMENT, ARE MADE WITH RESPECT TO THE
SERVICES OR ANY CONTENT OR SOFTWARE THEREIN. SOME STATES DO
NOT ALLOW LIMITATIONS ON HOW LONG AN IMPLIED WARRANTY LASTS,
SO THE ABOVE LIMITATIONS MAY NOT APPLY TO BRANDED PROVIDER.
9. Indemnification
Branded Provider and Epoch each agree to be responsible
for their own acts and those of their subordinates, employees
and subcontractors during the performance of the work under
this Agreement. Each party hereby indemnifies the other
against any and all losses, costs, damages, claims, expenses
or liabilities arising from any breach of each party's
obligations and duties as set forth in this Agreement.
10. Binding Arbitration
Epoch and Branded Provider agree to settle by
arbitration any disagreement or controversy arising between
Epoch and Branded Provider and any of their respective
employees, agents, etc. relating to this Agreement and/or any
customer serviced by Epoch. Such arbitration shall be
conducted, with venue in Orange County, California, according
to standard arbitration rules then in effect of the American
Arbitration Association. Initiation of arbitration may be made
by serving written notice to the other party. This arbitration
agreement is binding upon all parties. Any award the
arbitrator makes shall be final and binding on all parties and
judgment on it may be entered in any court having
jurisdiction. Furthermore, the prevailing party shall be
entitled to recover reasonable attorneys fees.
11. General
Neither party shall have the right to assign any
rights, duties or obligations hereunder without the prior
written consent of the party, which may not be unreasonably
withheld.
Neither party shall be held liable for failure to
fulfill its obligations hereunder if such failure is due to
causes beyond its reasonable control (Force Majeure)
including, without limitation, actions or failures to act of
any third-party upon whom either party reasonably relies for
services (e.g. Local Exchange Carriers, IntereXchange
Carriers, etc.), acts of God, earthquake, fire, catastrophe,
governmental prohibitions or regulations, hackers, national
emergencies, riots, wars, strikes, lockouts, work stoppages or
other labor difficulties, or other causes reasonably
unforeseen in the normal course of business. The time for any
performance required under this Agreement shall be extended by
the delay incurred as a result of any such act of Force
Majeure and neither party shall in no way be responsible for,
nor liable for, any damages or losses incurred as a result of
such act(s).
The entire Agreement between the parties is
incorporated in this Agreement (including all Attachments
hereto) and supersedes all prior discussions and agreements
between the parties relating to the subject matter herein.
This Agreement can be modified only in writing when duly
signed by authorized representatives of both parties.
If any provision of this Agreement shall be held to be
invalid, illegal or unenforceable, the validity, legality and
enforceability of the remaining provisions shall not in any
way be affected or impaired thereby.
Every provision of this Agreement is intended to be
severable. If any term or provision hereof is illegal or
invalid for any reason whatsoever, such illegality or
invalidity shall not affect the validity of the remainder of
this Agreement.
This Agreement is governed by the laws of the State of
California, exclusive of the choice of laws provisions thereof.
12. No Publicity
Neither party shall publicize or disclose the existence of
this Agreement or its terms, or issue a press release
concerning this Agreement, except as required by competent
legal process, without the consent of the other, with such
approval not to be unreasonably withheld, and in the event of
such agreement, all press release materials shall be reviewed
and approved by the other party. The failure of either party
to exercise in any respect any right provided for herein shall
not be deemed a waiver of any further rights hereunder.
13. Acknowledgments
Branded Provider acknowledges that it has read this
Agreement and understands and accepts the terms, conditions
and covenants contained herein. Epoch expressly disclaims the
making of, and Branded Provider acknowledges that it has not
received or relied on, any guaranty, express or implied, as to
the amount of revenue that it may earn as a result of its
activities pursuant to this Agreement.
14. Notices
All notices made to Branded Provider shall be delivered
to its address designated below, or as otherwise designated by
Branded Provider from time to time. All notices to Epoch shall
be delivered to its address designated below, or as otherwise
designated by Epoch from time to time.
15. Binding Effect
This Agreement is binding upon the parties hereto,
their respective executors, administrators, heirs and
successors in interest. All obligations by either party which
expressly or by their nature survive the expiration or
termination of this Agreement shall continue in force and
effect subsequent to and notwithstanding this Agreements
expiration or termination until such time that the obligations
are satisfied in full or by their nature expire.
IN WITNESS WHEREOF, the parties have so agreed and made
effective on the date first-above written.
EPOCH NETWORKS, INC. BRANDED PROVIDER
By: By:
Name: Name:
Its: Its:
Address: Address:
00000 Xxx Xxxxxx Xxx
0xx Xxxxx
Xxxxxx, XX 00000
Tel: 000-000-0000 Tel:
Fax: ###-##-#### Fax:
