Exhibit 10.17
THIS AMENDED AND RESTATED INTER-COMPANY SERVICES AGREEMENT, dated as of
August 31, 2000, is by and between IFX Corporation, a Delaware corporation
("IFX"), and Xxxxxxx.xxx, Inc., a Delaware corporation ("Tutopia"). Capitalized
terms used herein and not otherwise defined shall have the respective meanings
assigned to them in Article I hereof.
WHEREAS, IFX is an investor in Tutopia; and
WHEREAS, IFX will provide various services to Tutopia and the parties
desire to memorialize certain matters relating to the relationship between IFX
and Tutopia.
NOW, THEREFORE, for good and valuable consideration, the sufficiency of
which is hereby acknowledged, the parties, intending to be legally bound, agree
as follows:
ARTICLE I
DEFINITIONS.
For the purpose of this Agreement the following terms shall have the
following meanings:
1.01 "Action" means any demand, action, suit, counter-suit, arbitration,
inquiry, proceeding or investigation by or before any federal, state, local,
foreign or international Governmental Authority or any arbitration or mediation
tribunal.
1.02 "Affiliate" of any Person means a Person that controls, is controlled
by, or is under common control with such Person. As used herein, "control" means
the possession, directly or indirectly, of the power to direct or cause the
direction of the management and policies of such entity, whether through
ownership of voting securities or other interests, by contract or otherwise.
1.03 "Agreement" means this Inter-Company Service Agreement, including all
of the Exhibits and Schedules hereto.
1.04 "IFX Group" means IFX and each Person (other than any member of the
Tutopia Group) that is an Affiliate of IFX on the date hereof
1.05 "IFX Indemnitees" has the meaning set forth in Section 5.01
1.06 "Indemnifying Party" has the meaning set forth in Section 5.03(a)
1.07 "Indemnitee" has the meaning set forth in Section 5.03
1.08 "Indemnity Payment" has the meaning set forth in Section 5.03(a)
1.09 "Confidential Information" means any information disclosed and/or to
which any of the parties may have access, which is or should be reasonably
understood to be confidential or proprietary to either Party, including, but not
limited to, information concerning each party's business, products, services,
content, finances, subscribers, source code, product designs and plans, customer
lists and other marketing and technical information and other unpublished
information
1.10 "Insurance Policies" means the insurance policies written by
insurance carriers unaffiliated with IFX pursuant to which members of the
Tutopia Group (or their respective officers or directors) will be insured
parties after the date hereof
1.11 "Insurance Proceeds" means those monies:
(a) received by an insured from an insurance carrier; or
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(b) paid by an insurance carrier on behalf of the insured; in any
such case net of any applicable premium adjustments (including
reserves and retrospectively rated premium adjustments) and net
of any costs or expenses incurred in the collection thereof
1.12 "Liabilities" means any and all losses, claims, charges, debts,
demands, actions, causes of action, suits, damages, obligations, payments, costs
and expenses, sums of money, accounts, reckonings, bonds, specialties,
indemnities and similar obligations, exonerations, covenants, contracts,
controversies, agreements, promises, doings, omissions, variances, guarantees,
make whole agreements and similar obligations, and other liabilities, including
all contractual obligations, whether absolute or contingent, matured or
unmatured, liquidated or unliquidated, accrued or unaccrued, known or unknown,
whenever arising, and including those arising under any law, rule, regulation,
Action, threatened or contemplated Action (including the costs and expenses of
demands, assessments, judgments, settlements and compromises relating thereto
and attorneys' fees and any and all costs and expenses (including allocated
costs of in-house counsel and other personnel), whatsoever reasonably incurred
in investigating, preparing or defending against any such Actions or threatened
or contemplated Actions), order or consent decree of any Governmental Authority
or any award of any arbitrator or mediator of any kind, and those arising under
any contract, commitment or undertaking, including those arising under this
Agreement, whether or not recorded or reflected or required to be recorded or
reflected on the books and records or financial statements of any Person.
1.13 "Governmental Authority" shall mean a court, arbitral tribunal,
administrative agency or commission or other governmental or other regulatory
authority or agency.
1.14 "Tutopia Group" means Tutopia, each Subsidiary of Tutopia and each
other Person that is either controlled directly or indirectly by Tutopia on the
date hereof.
1.15 "Tutopia Indemnitees" has the meaning set forth in Section 6.03(a).
1.16 "Person" means an individual, a general or limited partnership, a
corporation, a trust, a joint venture, an unincorporated organization, a limited
liability entity, any other entity and any Governmental Authority.
1.17 "Subsidiary of any Person" means any corporation or other
organization whether incorporated or unincorporated of which at least a majority
of the securities or interests having by the terms thereof ordinary voting power
to elect at least a majority of the board of directors or others performing
similar functions with respect to such corporation or other organization is
directly or indirectly owned or controlled by such Person or by any one or more
of its Subsidiaries, or by such Person and one or more of its Subsidiaries;
provided, however, that no Person shall be deemed to be a Subsidiary of such
other Person unless such other Person controls, or has the right, power or
ability to control, that Person.
1.18 "Third Party Claim" has the meaning set forth in Section 5.04(a).
ARTICLE II
TERM AND TERMINATION
2.01 This Agreement shall commence on the date set forth above and unless
earlier terminated pursuant to paragraph 2.02 or 2.03 of this Article, shall
continue for one year. Upon termination, all rights and obligations of each
party hereto shall cease as of the date of termination and any amounts owed by
either party hereto shall be paid in full.
2.02 This Agreement shall also terminate effective immediately upon the
earlier to occur of:
(a) The dissolution, termination or liquidation of IFX or Tutopia;
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(b) The appointment of a trustee in bankruptcy for IFX or Tutopia,
an assignment of assets for the benefit of IFX's or Tutopia's
creditors or the adjudication of bankruptcy with respect to IFX
or Tutopia; or
(c) Either party providing sixty (60)-days written notice of its
intent to terminate the Agreement.
2.03 In the event that either party hereto shall commit any material
breach of or default under this Agreement and such breach or default is not
cured within thirty (30) calendar days after notice of such breach or default
(if remediable), the non-defaulting or non-breaching party shall have the right
(but not the obligation), in addition to all other legal and equitable remedies
that may be available to such party, to terminate this Agreement.
ARTICLE III
OFFICE SPACE, OFFICE FURNITURE AND OFFICE SERVICES ("Shared Premises")
3.01 IFX shall provide Tutopia and its employees use of office space,
office furniture and related office services such as utilities,
telecommunications equipment (including, but not limited to the costs of
installment and maintenance of lines, office units and an estimated amount for
actual calls), dedicated local area network internet access, general office
supplies, mailroom services, cleaning services, receptionist services,
maintenance services and general office equipment (e.g., photocopiers, printers
and telefax machines). The above list is not meant to be all-inclusive.
3.02 With respect to Section 3.01, IFX shall provide Tutopia an itemized
quarterly invoice, which Tutopia shall pay no later than thirty (30) calendar
days after receipt of such invoice, less any disputed amounts. To the extent
possible, IFX will specifically identify direct costs incurred by IFX on behalf
of Tutopia. Indirect costs incurred by IFX and attributable to Tutopia will be
allocated to Tutopia based on the number of employees dedicated to Tutopia
matters verses the total number of employees of IFX. Charges for the shared
premises shall be billed based on the rate schedule set forth in Exhibit A. The
parties shall negotiate in good faith to resolve all disputed amounts.
3.03 Tutopia shall provide IFX at least fifteen (15) calendar days notice
of its need for office space for new employee.
ARTICLE IV
SUPPORT SERVICES ("Services")
4.01 IFX shall provide Tutopia, at Tutopia's request: administration
(including, but not limited to marketing, financial management, sales efforts,
human resources, accounting, legal, etc.), Internet/telecom and certain
technical support services. IFX shall also provide other similar administrative
and operational services required to carry out Tutopia's business plan that IFX
has the resources to provide without unreasonable cost or burden to its own
operations. The above list is not meant to be all-inclusive.
4.02 Tutopia shall pay IFX for all out-of-pocket expenses to third parties
incurred in connection with the Services. Those expenses shall include actual
charges for telecommunications calls, special postage, courier service, and any
other similar products or services provided by third parties which are
individually billed to IFX and which are not included in its general charges
specified above. If V.A.T., use or similar taxes are at any time to be required
to be paid on the Services, they will be added to the amounts payable by Tutopia
pursuant to this Agreement.
4.03 With respect to Sections 4.01 and 4.02, IFX shall provide Tutopia an
itemized quarterly invoice, which Tutopia shall pay no later than thirty (30)
calendar days after receipt of such invoice, less any disputed amounts. To the
extent possible, IFX will specifically identify direct costs (including employee
salaries, bonuses, taxes and benefits) incurred by IFX on behalf of Tutopia
based on a
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reasonable estimate of the percentage of time dedicated by each employee to
Tutopia matters versus the total time dedicated by such employee to Tutopia and
IFX matters. Travel expenses, costs related to Tutopia marketing materials, and
the cost of equipment acquired by IFX specifically on behalf of Tutopia will be
separately itemized. The parties shall negotiate in good faith to resolve all
disputed amounts.
4.04 The persons listed on Exhibit B hereto are employees of IFX but have
been working full time on behalf of Tutopia. After the date hereof but on or
prior to the Initial Closing, such persons will be transferred to Tutopia's
payroll and become direct employees of Tutopia or its subsidiaries. All costs
associated with such employees incurred on or prior to the Initial Closing,
including salary, payroll taxes, benefits and similar costs paid or liabilities
incurred by Tutopia or by IFX on behalf of Tutopia will become liabilities of
Tutopia, provided, that such liabilities shall constitute "Funded Indebtedness"
for purposes of Section 5(l) of the Xxxxxxx.xxx, Inc. Stock Purchase Agreement
and subject to the limitations set forth therein.
ARTICLE V
INDEMNIFICATION
5.01 INDEMNIFICATION BY TUTOPIA. Except as provided in Section 5.04,
Tutopia shall indemnify, defend and hold harmless IFX, each member of the IFX
Group and each of their respective directors, officers and employees (in each
case, in their respective capacities as such), and each of the heirs, executors,
successors and assigns of any of the foregoing (collectively, the "IFX
Indemnitees"), from and against any and all Liabilities of the IFX Indemnitees
relating to, arising out of or resulting from any of the following items
(without duplication):
(a) The failure of Tutopia or any other member of the Tutopia Group
or any other Person to pay, perform or otherwise promptly
discharge any liabilities of Tutopia in accordance with their
respective terms, whether prior to or after the date hereof; and
(b) Any breach by Tutopia or any member of the Tutopia Group of this
Agreement; provided, however, that Tutopia shall not be
financially responsible hereunder for any special, incidental,
consequential or other similar type of damage to the extent that
such damages are specifically excluded in such agreement.
5.02 INDEMNIFICATION BY IFX. Except as otherwise provided in Section 5.04,
IFX shall indemnify, defend and hold harmless Tutopia, each member of the
Tutopia Group and each of their respective directors, officers and employees (in
each case, in their respective capacities as such), and each of the heirs,
executors, successors and assigns of any of the foregoing (collectively, the
"Tutopia Indemnitees"), from and against any and all Liabilities of the Tutopia
Indemnitees relating to, arising out of or resulting from any of the following
items (without duplication):
(a) The failure of IFX or any other member of the IFX Group or any
other Person to pay, perform or otherwise promptly discharge any
Liabilities of the IFX Group, whether prior to or after the date
hereof; and
(b) Any breach by IFX or any member of the IFX Group of this
Agreement; provided, however, that IFX shall not be financially
responsible hereunder for any special, incidental, consequential
or other similar type of damage to the extent that such damages
are specifically excluded in such agreement.
5.03 INDEMNIFICATION OBLIGATIONS NET OF INSURANCE PROCEEDS AND OTHER
AMOUNTS.
(a) The parties intend that any Liability subject to indemnification
or reimbursement pursuant to this Article V or Article VI will
be net of Insurance Proceeds that
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actually reduce the amount of the Liability. Accordingly, the
amount which any party (an "Indemnifying Party") is required to
pay to any Person entitled to indemnification hereunder (an
"Indemnitee") will be reduced by any Insurance Proceeds
theretofore actually recovered by or on behalf of the Indemnitee
in reduction of the related Liability. If an Indemnitee receives
a payment (an "Indemnity Payment") required by this Agreement
from an Indemnifying Party in respect of any Liability and
subsequently receives Insurance Proceeds, then the Indemnitee
will pay to the Indemnifying Party an amount equal to the excess
of the Indemnity Payment received over the amount of the
Indemnity Payment that would have been due if the Insurance
Proceeds had been received, realized or recovered before the
Indemnity Payment was made.
(b) An insurer who would otherwise be obligated to pay any claim
shall not be relieved of the responsibility with respect thereto
or, solely by virtue of the indemnification provisions hereof,
have any subrogation rights with respect thereto, it being
expressly understood and agreed that no insurer or any other
third party shall be entitled to a "windfall" (i.e., a benefit
they would not be entitled to receive in the absence of the
indemnification provisions) by virtue of the indemnification
provisions hereof. Nothing contained in this Agreement shall
obligate any member of any Group to seek to collect or recover
any Insurance Proceeds.
5.04 PROCEDURES FOR INDEMNIFICATION OF THIRD PARTY CLAIMS.
(a) If an Indemnitee shall receive notice or otherwise learn of the
assertion by a Person (including any Governmental Authority) who
is not a member of the IFX Group or the Tutopia Group of any
claim or of the commencement by any such Person of any Action
(collectively, a "Third Party Claim") with respect to which an
Indemnifying Party may be obligated to provide indemnification
to such Indemnitee pursuant to Section 5.02 or 5.03, or any
other Section of this Agreement such Indemnitee shall give such
Indemnifying Party written notice thereof within twenty (20)
days after becoming aware of such Third Party Claim. Any such
notice shall describe the Third Party Claim in reasonable
detail. Notwithstanding the foregoing, the failure of any
Indemnitee or other Person to give notice as provided in this
Section 5.05(a) shall not relieve the related Indemnifying Party
of its obligations under this Article VI, except to the extent
that such Indemnifying Party is actually prejudiced by such
failure to give notice.
(b) An Indemnifying Party may elect to defend (and, unless the
Indemnifying Party has specified any reservations or exceptions,
to seek to settle or compromise), at such Indemnifying Party's
own expense and by such Indemnifying Party's own counsel, any
Third Party Claim. Within thirty (30) days after the receipt of
notice from an Indemnitee in accordance with Section 3.05(a) (or
sooner, if the nature of such Third Party Claim so requires),
the Indemnifying Party shall notify the Indemnitee of its
election whether the Indemnifying Party will assume
responsibility for defending such Third Party Claim, which
election shall specify any reservations or exceptions. After
notice from an Indemnifying Party to an Indemnitee of its
election to assume the defense of a Third Party Claim, such
Indemnitee shall have the right to employ separate counsel and
to participate in (but not control) the defense, compromise, or
settlement thereof, but the fees and expenses of such counsel
shall be the expense of such Indemnitee except as set forth in
the next sentence. In the event that the Indemnifying Party has
elected to assume the defense of the Third Party Claim but has
specified, and continues to assert, any reservations or
exceptions in such notice, then, in any such case, the
reasonable fees and expenses of one separate counsel for all
Indemnitees shall be borne by the Indemnifying Party.
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(c) If an Indemnifying Party elects not to assume responsibility for
defending a Third Party Claim, or fails to notify an Indemnitee of its
election as provided in Section 5.05(b), such Indemnitee may defend
such Third Party Claim at the cost and expense of the Indemnifying
Party.
(d) Unless the Indemnifying Party has failed to assume the defense of the
Third Party Claim in accordance with the terms of this Agreement, no
Indemnitee may settle or compromise any Third Party Claim without the
consent of the Indemnifying Party, which consent shall not be
unreasonably withheld or delayed.
(e) No Indemnifying Party shall consent to entry of any judgment or enter
into any settlement of the Third Party Claim without the consent of
the Indemnitee if the effect thereof is to permit any injunction,
declaratory judgment, other order or other nonmonetary relief to be
entered, directly or indirectly, against any Indemnitee.
(f) The provisions of Section 5.05 and Section 5.06 shall not apply to
Taxes.
5.05 ADDITIONAL MATTERS.
(a) Any claim on account of a Liability which does not result from a Third
Party Claim shall be asserted by written notice given by the
Indemnitee to the related Indemnifying Party. Such Indemnifying Party
shall have a period of thirty (30) days after the receipt of such
notice within which to respond thereto. If such Indemnifying Party
does not respond within such thirty (30) day period, such Indemnifying
Party shall be deemed to have refused to accept responsibility to make
payment. If such Indemnifying Party does not respond within such
thirty (30) day period or rejects such claim in whole or in part, such
Indemnitee shall be free to pursue such remedies as may be available
to such party as contemplated by this Agreement.
(b) In the event of payment by or on behalf of any Indemnifying Party to
any Indemnitee in connection with any Third Party Claim, such
Indemnifying Party shall be subrogated to and shall stand in the place
of such Indemnitee as to any events or circumstances in respect of
which such Indemnitee may have any right, defense or claim relating to
such Third Party Claim against any claimant or plaintiff asserting
such Third Party Claim or against any other person. Such Indemnitee
shall cooperate with such Indemnifying Party in a reasonable manner,
and at the cost and expense (including allocated costs of in-house
counsel and other personnel) of such Indemnifying Party, in
prosecuting any subrogated right, defense or claim.
(c) In the event of an Action in which the Indemnifying Party is not a
named defendant, if the Indemnifying Party shall so request, the
parties shall endeavor to substitute the Indemnifying Party for the
named defendant if at all practicable. If such substitution or
addition cannot be achieved for any reason or is not requested, the
named defendant shall allow the Indemnifying Party to manage the
Action as set forth in this Section and the Indemnifying Party shall
fully indemnify the named defendant against all costs of defending the
Action (including court costs, sanctions imposed by a court,
attorneys' fees, experts' fees and all other external expenses), the
costs of any judgment or settlement, and the cost of any interest or
penalties relating to any judgment or settlement.
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5.06 SURVIVAL OF INDEMNITIES. The rights and obligations of each of IFX
and Tutopia and their respective Indemnitees under this Article V shall survive
the sale or other transfer by any party of any Assets or businesses or the
assignment by it of any Liabilities.
5.07 UNAVAILABILITY OF INDEMNITY. If the indemnification provided for in
this Article V is held by a court of competent jurisdiction to be unavailable to
an indemnified party with respect to any Liabilities referred to herein, the
indemnifying party, in lieu of indemnifying such indemnified party hereunder,
agrees to contribute to the amount paid or payable by such indemnified party as
a result of such Liability in such proportion as is appropriate to reflect the
relative fault of the indemnifying party on one hand and of the indemnified
party on the other in connection with the event that resulted in such Liability,
as well as any other relevant equitable considerations.
ARTICLE VI
INSURANCE MATTERS
6.01 Tutopia and IFX agree that Tutopia may remain on IFX's insurance
policies relating to Directors and Officers, property, errors and omissions,
professional liability, worker's compensation, office content and general
liability until the earlier of such time as Tutopia no longer qualifies for
coverage on the respective IFX Insurance Policy or, upon thirty (30) days' prior
written notice to IFX, Tutopia elects to be removed from the IFX Insurance
Policy or Policies. For so long as Tutopia is covered by IFX's Insurance
Policies, Tutopia shall pay to IFX on a quarterly calendar basis (prorated on a
daily basis for any partial month), no later than thirty (30) days after the end
of each respective quarter, in respect of the period from the date hereof until
the termination of Tutopia's coverage on all of IFX's Insurance Policies, in
respect of Insurance Policies under which Tutopia shall continue to have
coverage following the date hereof. IFX and Tutopia agree to cooperate in good
faith to provide for the treatment of any Insurance Policies that shall remain
in effect following the date hereof on a mutually agreeable basis. IFX shall
provide Tutopia with prompt notice in the event that any Insurance Policy shall
be terminated or otherwise cease to be in effect for any reason, provided that
IFX shall provide Tutopia with reasonable notice prior to taking any action to
terminate or reduce the scope of insurance. In no event shall IFX, any other
member of the IFX Group or any IFX Indemnitee have liability or obligation
whatsoever to any member of the Tutopia Group in the event (i) that any
Insurance Policy or other contract or policy of insurance shall be terminated or
otherwise cease to be in effect for any reason, shall be unavailable or
inadequate to cover any Liability of any member of the Tutopia Group for any
reason whatsoever or shall not be renewed or extended beyond the current
expiration date; or (ii) notwithstanding the provisions of the immediately
preceding sentence, that IFX fails to provide Tutopia with notice of any such
event.
6.02 (a) The parties intend by this Agreement that Tutopia and each other
member of the Tutopia Group be successors-in-interest to all rights that any
member of the Tutopia Group may have as of the date hereof as a subsidiary,
affiliate, division or department of IFX prior to the date hereof under any
policy of insurance issued to IFX by any insurance carrier unaffiliated with IFX
or under any agreements related to such policies executed and delivered prior to
the date hereof, including any rights such member of the Tutopia Group may have,
as an insured or additional named insured, subsidiary, affiliate, division or
department, to avail itself of any such policy of insurance or any such
agreements related to such policies as in effect prior to the date hereof. At
the request of Tutopia, IFX shall take all reasonable steps, including the
execution and delivery of any instruments, to effect the foregoing; provided,
however that IFX shall not be required to pay any amounts, waive any rights or
incur any Liabilities in connection therewith.
(b) after the date hereof, none of IFX or Tutopia or any member of
their respective Groups shall, without the consent of the other,
provide any such insurance carrier with a release, or amend,
modify or waive any rights under any such policy or agreement,
if such release, amendment, modification or waiver would
adversely affect any rights or potential rights of any member of
the other Group thereunder; provided however that the foregoing
shall not (A) preclude any member of any Group from presenting
any claim or from exhausting any policy limit, (B) require any
member of any Group to pay any premium or other amount or to
incur any
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Liability, or (C) require any member of any Group to renew,
extend or continue any policy in force. Each of Tutopia and IFX
will share such information as is reasonably necessary in order
to permit the other to manage and conduct its insurance matters
in an orderly fashion
6.03 This Agreement shall not be considered as an attempted assignment of
any policy of insurance or as a contract of insurance and shall not be construed
to waive any right or remedy of any member of the IFX Group in respect of any
Insurance Policy or any other contract or policy of insurance.
6.04 Tutopia does hereby, for itself and each other member of the Tutopia
Group, agree that no member of the IFX Group or any IFX Indemnitee shall have
any Liability whatsoever as a result of the insurance policies and practices of
IFX and its Affiliates as in effect at any time prior to the date hereof,
including as a result of the level or scope of any such insurance, the
creditworthiness of any insurance carrier, the terms and conditions of any
policy, the adequacy or timeliness of any notice to any insurance carrier with
respect to any claim or potential claim or otherwise.
6.05 Nothing in this Agreement shall be deemed to restrict any member of
the Tutopia Group from acquiring at its own expense any other insurance policy
in respect of any Liabilities or covering any period.
ARTICLE VII
EXCHANGE OF INFORMATION; CONFIDENTIALITY
7.01 AGREEMENT FOR EXCHANGE OF INFORMATION; ARCHIVES.
(a) IFX and Tutopia, on behalf of its respective Group, agree to provide,
or cause to provide, to the other Group, as soon as reasonably
practicable after written request, any information in the possession
or under the control of such Group which the requesting party
reasonably needs (i) to comply with reporting, disclosure, filing or
other requirements imposed on the requesting party (including under
applicable securities or tax laws) by a Governmental Authority having
jurisdiction over the requesting party, (ii) for use in any other
judicial, regulatory, administrative, tax or other proceeding or in
order to satisfy audit, accounting, claims, regulatory, litigation,
tax or other similar requirements, or (iii) to comply with its
obligations under this Agreement; provided, however, that in the
event that any party determines that any such provision of
Information could be commercially detrimental, violate any law or
agreement, or waive any attorney client privilege, the parties shall
take all reasonable measures to permit the compliance with such
obligations in a manner that avoids any such harm or consequence.
(b) Tutopia shall have access during regular business hours (as in effect
from time to time) to the documents and objects of historic
significance that relate to the business of Tutopia that are located
in the IFX records to the extent such documents or objects have been
specifically identified and requested by Tutopia in advance or, if
specific documents or objects have not been identified, to the extent
Tutopia has provided IFX with proper advance notice to request such
access and the Tutopia representative designated to receive such
access is accompanied by an IFX representative. Tutopia may obtain
copies (but not originals) of documents for bona fide business
purposes and may obtain objects for exhibition purposes for
commercially reasonable periods of time if required for bona fide
business purposes, provided that Tutopia shall cause any such objects
to be returned promptly in the same condition in which they were
delivered to Tutopia and Tutopia shall comply with any rules,
procedures or other requirements, and shall be subject to any
restrictions (including prohibitions on removal of specified
objects), that are then applicable to IFX. Nothing herein
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shall be deemed to restrict the access of any member of the IFX
Group to any such documents or objects or to impose any liability
on any member of the IFX Group if any such documents or objects
are not maintained or preserved by IFX.
7.02 OWNERSHIP OF INFORMATION. Any Information owned by one Group that is
provided to a requesting party pursuant to Section 7.01 shall be deemed to
remain the property of the providing party. Unless specifically set forth
herein, nothing contained in this Agreement shall be construed as granting or
conferring rights of license or otherwise in any such Information.
7.03 COMPENSATION FOR PROVIDING INFORMATION. The party requesting such
Information agrees to reimburse the other party for the reasonable costs, if
any, of creating, gathering and copying such Information, to the extent that
such costs are incurred for the benefit of the requesting party. Except as may
be otherwise specifically provided elsewhere in this Agreement or in any other
agreement between the parties, such costs shall be computed in accordance with
the providing party's standard methodology and procedures.
7.04 RECORD RETENTION. To facilitate the possible exchange of Information
pursuant to this Article VII and other provisions of this Agreement after the
date hereof, the parties agree to use their reasonable best efforts to retain
all Information in their respective possession or control on the date hereof in
accordance with the policies of IFX as in effect on the date hereof. No party
will destroy, or permit any of its Subsidiaries to destroy, any Information
which the other party may have the right to obtain pursuant to this Agreement
without first using its reasonable best efforts to notify the other party of the
proposed destruction and giving the other party the opportunity to take
possession of such information prior to such destruction.
7.05 LIMITATION OF LIABILITY. No party shall have any liability to any
other party in the event that any Information exchanged or provided pursuant to
this Agreement which is an estimate or forecast, or which is based on an
estimate or forecast, is found to be inaccurate, in the absence of willful
misconduct by the party providing such Information. No party shall have any
liability to any other party if any Information is destroyed after reasonable
best efforts by such party to comply with the provisions of Section 7.04.
7.06 CONFIDENTIALITY. (a) Subject to Section 7.07, each of IFX and
Tutopia, on behalf of itself and each member of its respective Group, agrees to
hold, and to cause its respective directors, officers, employees, agents,
accountants, counsel and other advisors and representatives to hold, in strict
confidence, with at least the same degree of care that applies to IFX's
confidential and proprietary information pursuant to policies in effect as of
the date hereof, all Confidential Information concerning each such other Group
that is either in its possession (including Confidential Information in its
possession prior to the date hereof) or furnished by any such other Group or its
respective directors, officers, employees, agents, accountants, counsel and
other advisors and representatives at any time pursuant to this Agreement and
shall not use any such Confidential Information other than for such purposes as
shall be expressly permitted hereunder or thereunder, except, in each case, to
the extent that such Confidential Information has been (i) in the public domain
through no fault of such party or any member of such Group or any of their
respective directors, officers, employees, agents, accountants, counsel and
other advisors and representatives, (ii) later lawfully acquired from other
sources by such party (or any member of such party's Group which sources are not
themselves bound by a confidentiality obligation), or (iii) independently
generated without reference to any proprietary or Confidential Information of
the other party.
Each party agrees not to release or disclose, or permit to be released or
disclosed, any such Information to any other Person, except its directors,
officers, employees, agents, accountants, counsel and other advisors and
representatives who need to know such Information (who shall be advised of their
obligations hereunder with respect to such Information), except in compliance
with Section 7.07. Without limiting the foregoing, when any Information is no
longer needed for the purposes contemplated by this Agreement each party will
promptly after request of the other party either return to the other party all
Information in a tangible form (including all copies thereof and all notes,
extracts or summaries based
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IFX Confidential and Proprietary
Exhibit 10.17
thereon) or certify to the other party that it has destroyed such Information
(and such copies thereof and such notes, extracts or summaries based therein).
7.07 PROTECTIVE ARRANGEMENTS. In the event that any party or any member of
its Group either determines on the advice of its counsel that it is required to
disclose any Information pursuant to applicable law or receives any demand under
lawful process or from any Governmental Authority to disclose or provide
Information of any other party (or any member of any other party's Group) that
is subject to the confidentiality provisions hereof, such party shall notify the
other party prior to disclosing or providing such Information and shall
cooperate at the expense of the requesting party in seeking any reasonable
protective arrangements requested by such other party. Subject to the foregoing,
the Person that received such request may thereafter disclose or provide
Information to the extent required by such law (as so advised by counsel) or by
lawful process or such Governmental Authority.
ARTICLE VIII
MISCELLANEOUS
8.01 COUNTERPARTS; ENTIRE AGREEMENT; CORPORATE POWER.
(a) This Agreement may be executed in one or more counterparts, all
of which shall be considered one and the same agreement, and
shall become effective when one or more counterparts have been
signed by each of the parties and delivered to the other party.
(b) This Agreement, and the Exhibits, Schedules and Appendices
hereto, contain the entire agreement between the parties with
respect to the subject matter hereof, supersede all previous
agreements (including the Inter-Company Services Agreement dated
January 7, 2000, between the parties), negotiations,
discussions, writings, understandings, commitments and
conversations with respect to such subject matter and there are
no agreements or understandings between the parties other than
those set forth or referred to herein or therein.
(c) IFX represents on behalf of itself and each other member of the
IFX Group and Tutopia represents on behalf of itself and each
other member of the Tutopia Group as follows:
(i) Each such Person has the requisite corporate or other power
and authority and has taken all corporate or other action
necessary in order to execute, deliver and perform each of
this Agreement, to which it is a party and to consummate
the transactions contemplated hereby and thereby; and
(ii) This Agreement to which it is a party has been duly
executed and delivered by it and constitutes a valid and
binding agreement of it enforceable in accordance with the
terms thereof subject to (a) the laws of bankruptcy and
laws effecting creditors' rights generally and (b) the
availability of equitable remedies.
8.02 GOVERNING LAW. This Agreement is or, upon execution and delivery
thereof, shall be governed by, and construed in accordance with, the laws of the
State of Florida. The Parties agree to submit themselves to the exclusive
jurisdiction of the courts of the State of Florida or of the United States
District Court for the Southern District of Florida in respect of litigation
arising out of this agreement, waiving all affirmative and legal defenses in
respect of jurisdiction, forum and venue.
8.03 ASSIGNABILITY. Neither party hereto or thereto may assign its
respective rights or delegate its respective obligations under this Agreement
without the express prior written consent of the
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other parties hereto or thereto; provided, however, that either party hereto may
assign its rights and delegate its responsibilities in connection with a sale or
assignment of all or substantially all of its assets to a single acquiror.
8.04 THIRD PARTY BENEFICIARIES. Except for the indemnification rights
under this Agreement of any IFX Indemnitee or Tutopia Indemnitee in their
respective capacities as such, (a) the provisions of this Agreement are solely
for the benefit of the parties and are not intended to confer upon any Person
except the parties any rights or remedies hereunder, (b) there are no third
party beneficiaries of this Agreement, and (c) nothing in this Agreement shall
provide any third person with any remedy, claim, liability, reimbursement, claim
of action or other right in excess of those existing without reference to this
Agreement.
8.05 NOTICES. Except as otherwise permitted herein, any notices or
consents required or permitted under this Agreement shall be made in writing and
delivered in person or by registered or certified mail, postage prepaid, return
receipt requested, or by a reputable courier delivery service, or by facsimile
or e-mail during regular business hours (provided that a confirmation copy
follows by first-class US Mail or another method of delivery permitted under
this Section), as follows unless such address is changed by written notice
hereunder. Such notice shall be deemed given for purposes of this Agreement on
the day that such writing is sent to the intended recipient thereof in
accordance with the provisions of this section:
If to Tutopia: If to IFX:
Jak Xxxxxxxx Xxxx Xxxxxxxxxx
Xxxxxxx.xxx, Inc. IFX Corporation
00000 XX 00 Xxxxx, Xxxxx 000 00000 XX 00 Xxxxx, Xxxxx 000
Xxxxx Xxxxx, Xxxxxxx 00000 Xxxxx Xxxxx, Xxxxxxx 00000
Fax: (000) 000-0000 Fax: (000) 000-0000
E-mail: Xxxx@xxxxxxx.xxx E-mail: XXxxxxxxxxx@xxxxxxx.xxx
8.06 SEVERABILITY. If any provision of this Agreement or the application
thereof to any Person or circumstance is determined by a court of competent
jurisdiction to be invalid, void or unenforceable, the remaining provisions
hereof or thereof, or the application of such provision to Persons or
circumstances or in jurisdictions other than those as to which it has been held
invalid or unenforceable, shall remain in full force and effect and shall in no
way be affected, impaired or invalidated thereby, so long as the economic or
legal substance of the transactions contemplated hereby or thereby, as the case
may be, is not affected in any manner adverse to any party. Upon such
determination, the parties shall negotiate in good faith in an effort to agree
upon such a suitable and equitable provision to effect the original intent of
the parties.
8.07 FORCE MAJEURE. Neither Party shall be liable for any failure or delay
resulting from any acts of God, governmental action, fire, insurrection,
earthquake, power failure, riot, explosion, embargo, strikes, whether legal or
illegal, labor or material shortage, transportation interruption of any kind,
work slowdown or any other condition beyond the control of the Party affecting
production or delivery in any manner. In the event of any such excused delay,
the time for performance shall be extended for a period equal to the time lost
by reason of the delay.
8.08 HEADINGS. The article, section and paragraph headings contained in
this Agreement are for reference purposes only and shall not affect in any way
the meaning or interpretation of this Agreement.
8.09 WAIVERS OF DEFAULT. Waiver by any party of any default by the other
party of any provision of this Agreement shall not be deemed a waiver by the
waiving party of any subsequent or other default, nor shall it prejudice the
rights of the other party.
8.10 AMENDMENTS. No provisions of this Agreement shall be deemed waived,
amended, supplemented or modified by any party, unless such waiver, amendment,
supplement or modification is in
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IFX Confidential and Proprietary
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writing and signed by the authorized representative of the party against whom it
is sought to enforce such waiver, amendment, supplement or modification.
8.11 INTERPRETATION. Words in the singular shall be held to include the
plural and vice versa and words of one gender shall be held to include the other
genders as the context requires. The terms "hereof," "herein," and "herewith"
and words of similar import shall, unless otherwise stated, be construed to
refer to this Agreement as a whole (including all of the Schedules, Exhibits and
Appendices hereto and thereto) and not to any particular provision of this
Agreement. Article, Section, Exhibit, Schedule and Appendix references are to
the Articles, Sections, Exhibits, Schedules and Appendices to this Agreement
unless otherwise specified. The word "including" and words of similar import
when used in this Agreement shall mean "including, without limitation," unless
the context otherwise requires or unless otherwise specified.
IN WITNESS WHEREOF, the parties have caused this Inter-Company Agreement to
be executed by their duly authorized representatives as of the date first above
written.
For Xxxxxxx.xxx, Inc.: For IFX Corporation:
/s/ Jak Xxxxxxxx /s/ Xxxxxxx Xxxxxx
----------------------------------- -------------------------------------
Signature Signature
Jak Xxxxxxxx Xxxxxxx Shalom
----------------------------------- -------------------------------------
Print Name Print Name
President CEO
----------------------------------- -------------------------------------
Title Title
August 31, 2000 August 31, 2000
----------------------------------- -------------------------------------
Date Date
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