STATE OF SOUTH CAROLINA )
) AGREEMENT
COUNTY OF CHARLESTON )
This Agreement dated as of this 21st day of November, 1997 by and
between Internet Cable Corporation, a Nevada corporation, having its principal
place of business at 000 Xxxx Xxxxxx, Xxxxx X, Xxxxxxxxxx, Xxxxx Xxxxxxxx
(hereinafter referred to as "ICBL") and US Cable of Coastal-Texas, LP d/b/a US
Cable Coastal Properties headquartered at Montvale Plaza, 28 W. Grand Avenue,
Montvale, New Jersey and doing business at 0000 Xxxxxxx Xxxxxxx, Xxxx'x Xxxxxx,
Xxxxx Xxxxxxxx (hereinafter referred to as "Cable").
WITNESSETH:
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WHEREAS, ICBL is in the business of providing certain high speed cable
modem Internet-related services,
WHEREAS, Cable is in the business of providing cable-TV related
service,
WHEREAS, ICBL and Cable desire to enter into certain agreements
relating to the delivery of Internet-related data services to Cable's customers
using Cable's currently installed cable-TV wire system at Wild Dunes Resort,
Wild Dunes, South Carolina. Additional sites may be added under "Attachment C",
subject to further negotiations.
WHEREAS, ICBL and Cable desire to set forth certain terms, agreements
and conditions regarding their relationship as set forth below,
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1. TERM: The term of this Agreement shall be for one (1) year, with
said term commencing on this 21st day of November, 1997 and ending at midnight
on the 20th day of November, 1998, unless previously terminated as described
below, or extended by mutual written agreement. Termination, by Cable or ICBL,
shall be by written notice and given at least 90 days prior to the expiration of
the term. At the conclusion of this term, ICBL and Cable will conduct a
mandatory evaluation of this joint venture.
2. OBLIGATIONS: ICBL agrees to use its technical expertise and
knowledge to integrate/deploy hardware equipment for a limited delivery of
Internet Access through Cable's cable-TV lines. Area and subscribers for the
deployment will be selected jointly. ICBL agrees that it will maintain adequate
network capacity/bandwidth using generally accepted industry practices and
standards.
3. EQUIPMENT: Cable shall purchase from ICBL, at ICBL's cost which may
include volume discounts, all headend equipment and cable modems necessary to
provide data over cable. Such equipment shall remain the property of Cable. See
"Attachment A." It is the intent of both parties that "Attachment A" shall be
representative of equipment suitable for the purposes anticipated under this
agreement. However, "Attachment A" does not create a binding requirement to
utilize a specific vendor or equipment. ICBL shall provide and maintain
bandwidth, Internet Access, IP Addresses, routing, cache and content servers as
necessary.
4. HELPDESK: ICBL will furnish all hardware and personnel as needed by
the Helpdesk. Helpdesk will be manned as necessary to provide superior service
in accordance with industry standards. Helpdesk Hours: Standard business hours
(8am-5pm Eastern Standard Time),with technicians on call 24 hours a day, 7 days
a week. Additional full-time staff hours will be added as the subscriber base
warrants.
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5. REVENUE SHARING: Collected gross revenues including the fair market
value of any barter transactions derived from the data services, as pertaining
to the individual cable systems (including, but not limited to, derivative
revenues from server, advertising, video conferencing, server co-location and
any other new technologies developed in the future) shall be shared equally.
Subscriber billing will be the responsibility of Cable with monthly figures
provided to ICBL. Cable will honor ICBL's invoices within industry standards of
Net 30 terms. ICBL will make available to Cable all records, receipts and
reports necessary to accurately disclose revenue generated.
6. CUSTOMER RATES: ICBL and Cable agree to the following proposed
customer user rates and installation charges in Attachment "B", with any
changes being mutually agreed upon in writing.
7. INSTALLATION: ICBL will provide personnel necessary to complete
installations into end-user computers. These technicians will be trained by ICBL
and be bound by acceptable employee policies and procedures agreed upon by ICBL
and Cable.
X. Xxxxxxx: ICBL will be responsible for all headend set-up and
computer integration to enable data over the cable system. There will be no
set-up charges to Cable.
B. End-User: ICBL will be responsible for installation and
configuration of the end user's computer to receive data over the cable system.
The parties agree to develop an end-user agreement acceptable to both parties.
Said end-user agreement will not be modified without consent of both parties.
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8. OWNERSHIP: Each party hereto agrees that the ownership of any
property, whether personal or real, tangible or intangible, shall remain with
the party who owned the property immediately prior to the date of this
Agreement, and each party agrees that it shall not make any claim whatsoever
against any such property of the other.
9. MAINTENANCE: Each party hereto agrees that it will maintain in a
good state of repair its property which is being used pursuant to this
Agreement.
10. INSURANCE: Each party hereto agrees to obtain and maintain at all
times during the term hereof appropriate insurance against any loss or liability
for damages or injury to person or property due to any actions or inaction's of
such party relating to the transactions contemplated in this Agreement. Such
insurance policies shall be for a minimal amount of $1,000,000.00.
11. INDEMNITY: In the event Cable is made or becomes party to any suit,
claim or demand by reason of this agreement or an act or omission of ICBL in the
performance of this agreement, ICBL agrees to indemnify and hold Cable harmless
from and against any and all damages, expenses, claims, fines, penalties or loss
including reasonable attorney's fees, incurred by or imposed on Cable in
connection with any such suit, claim or demand. In the event ICBL is made or
becomes party to any suit, claim or demand by any wrongful or negligent act or
omission by Cable, Cable agrees to indemnify and hold ICBL harmless from and
against any and all damages, expenses, claims fines penalties or losses,
including reasonable attorney's fees, incurred by or imposed on ICBL in
connection with any suit, claim, or demand. In no event shall Cable be liable to
ICBL for any loss, of profit, loss of business, loss of use or data,
interruption of business, or for indirect, special, incidental or consequential
damages of any kind.
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ICBL and Cable will comply with all applicable laws, rules and
regulations, now existing or as subsequently amended, relating to Internet
access and related services and all other actions Cable takes pursuant to this
agreement.
12. DEFAULT: The occurrence of any one or more of the following events
shall at the option of a party constitute a material breach of this Agreement by
the other party:
A. The failure of the other party to make any payment required to be
made by the other party hereunder, as and when due;
B. The failure of the other party to observe or perform any of the
covenants, conditions or obligations of the other party under this Agreement
where such failure shall continue for a period of ten (10) days following
written notice thereof from the party to the other party, provided, however,
that if the nature of the other party's default is such that more than ten (10)
days may be reasonable required for such cure, then the other party shall not be
deemed to be in default if it commences such cure within the said ten (10) day
period and thereafter diligently pursues such cure to completion;
C. The making of any general arrangement or any assignment by the other
party for the benefit of creditors, or any other reason.
D. The filing by or against the other party of a petition to have said
party adjudged a bankrupt or a petition for reorganization or arrangement under
any law relating to bankruptcy (unless in the case of a petition filed against
said party it is dismissed or stayed within ninety (90) days;
E. The appointment of a trustee or receiver to take a possession of
substantially all of said party's assets;
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F. The attachment, execution or other judicial seizure of substantially
of said party's assets; or
G. The dissolution of said party which is not reversed within ninety
(90) days.
13. IN THE EVENT OF DEFAULT: In the event of default by one party
hereunder, the non-defaulting party, following any appropriate cure period, may
declare this Agreement to be terminated, in which event, each party's rights and
duties under this Agreement shall terminate without prejudice to the
non-defaulting party's right to receive damages for breach of this in equity
which said non-defaulting party may have. The defaulting party shall be liable
for all its costs and expenses, including reasonable attorney's fees, incurred
by the non-defaulting party in connection with any such default.
14. ACCESS: With respect to the transactions contemplated herein, each
party agrees to grant to the other party reasonable access throughout the term
of this Agreement and for one (1) year thereafter, to all of the properties,
books, contracts, records, etc. of the other party required for each party to
meet its obligations hereunder. Each party agrees to treat as confidential and
will not use or provide to others, during the term or following the termination
of this Agreement, information disclosed to it or to its counsel, accountants,
engineers or other representatives if said information is not publicly
available. Each party agrees not to dispose of any relevant books, contracts,
documents or other records relating to the transactions contemplated in this
Agreement for a period of one (1) year from the termination date of this
Agreement without first offering to deliver such records to the other party.
15. TERMINATION: This Agreement shall be terminated upon the occurrence
of one of the following:
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A. The expiration of the term described above;
B. At the option of the non-defaulting party, following a default by
the other party which is not cured within any applicable cure period; or
C. Upon the written agreement of each party hereto.
D. ICBL may terminate this agreement with no obligation to Cable at any
time if: (1) Cable fails to comply with any of the provisions of this agreement.
(2) Cable fails to meet the uptime or repair within a reasonable period of time,
(3) In the event of a major change to cable's system, ICBL determines that
Cable's system cannot be made compatible with ICBL's requirements within 48
hours of such a change.
E. Cable may terminate this agreement if ICBL's conduct, business
practices or equipment interferes with Cable's reception or core business. ICBL
will have 10 days to cure the problem. If the problem has not been cured within
10 days, then Cable has the option to terminate this agreement and neither party
shall have any claims against the other. If ICBL experiences capacity or any
other difficulties where it cannot meet acceptable network performance standards
or otherwise provide the services specified in this agreement, Cable will be
able to terminate the agreement without liability.
16. SURVIVAL: The respective representations, warranties covenants,
guaranties and indemnification's of each party hereto shall not terminate at,
but shall survive, the termination of this Agreement.
17. PARAGRAPH HEADINGS: The paragraph heading contained in the
Agreement are for reference purposes only and shall not affect in any way the
meaning or interpretation of this Agreement.
18. NOTICES: Cable agrees to give written notice to ICBL immediately
upon receiving any order or request from a court, administrative or
investigative agency
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or other governmental body for information about or access affecting or having
the probability of affecting any ICBL subscriber or ICBL subscriber account (an
"Order"), and to give ICBL a reasonable opportunity to respond to Cable before
Cable responds to any such Order.
A. to the extent consistent with applicable laws, rules and
regulations, not to place ICBL in violation of its Service Use and End User
Licensed Agreements, and
B. to maintain full compliance with all laws, rules and regulations
applicable to the Order. Cable further agrees to furnish ICBL immediately with
copies of all correspondence to or from the requesting authority in relation to
such Order.
All notices, demands or other communications hereunder shall be in writing and
shall be deemed to have been duly given if delivered, or mailed first class
postage prepaid addressed, as follows:
A. If to ICBL:
INTERNET CABLE CORPORATION
000 XXXX XXXXXX, XXXXX X
XXXXXXXXXX, XX 00000
C. If to Cable:
US CABLE COASTAL PROPERTIES US CABLE CORPORATION
ATTN: REGIONAL MANAGER ATTN: G. XXXXXX XXXXX
0000 XXXXXXX XXXXXXX XXXXXXXX PLAZA, 00 X. XXXXX XXX.
XXXX'X XXXXXX, XX 00000 XXXXXXXX, XX 00000
or a party may hereafter designate such other address as for such purpose.
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19. MISCELLANEOUS:
A. ICBL and Cable are independent Contractors, and nothing this
agreement is to be interpreted to make their party an agent, partner,
representative or employee of the other. Neither ICBL nor Cable may assign this
agreement without the prior written consent of the other, except that ICBL may
assign this agreement, upon notice to Cable to any affiliate of ICBL.
B. PUBLICITY PRESS RELEASES AND MARKETING MATERIAL: All promotional
material including, but not limited to publicity press releases, name branding
and marketing material shall be approved by both ICBL and Cable in advance.
20. COUNTERPARTS: This Agreement may be executed simultaneously in two
or more counterparts, each of which shall be deemed an original, but all of
which together shall constitute one and the same instrument.
21. LAW TO GOVERN: This Agreement shall be construed and enforced in
accordance with the laws of the State of South Carolina and any dispute shall be
heard in a court of competent jurisdiction in Charleston County, South Carolina.
22. ENTIRE AGREEMENT; WAIVER: This Agreement constitutes the entire
agreement between the parties and supersedes prior negotiations, understanding
and agreements concerning the subject matter hereof. No modification or waiver
hereof shall be binding upon any party unless in writing and signed by or on
behalf of the party against which the modification or waiver is asserted.
23. EXPENSES AND TAXES: Each party hereto shall pay its own expenses
incident to this Agreement and the transactions contemplated herein, including
all legal and accounting fees and disbursements.
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24. ASSIGNMENT; PARTIES IN INTEREST: This Agreement shall inure to the
benefit of and be binding upon the parties named herein and their respective
successors and assigns, and any assignment of this Agreement or the right
hereunder by any party hereto without the written consent of the other party
shall be void.
25. RULE OF CONSTRUCTION: This Agreement has been negotiated between
the parties with assistance of legal counsel and no provision hereof shall be
construed against a party based on the identity of the party which prepared the
provision.
26. TIME: ICBL and Cable agree that time is of the essence in the
performance of this Agreement.
27. ADDITIONAL SITES: Additional sites may be added to and covered
under this Agreement without modifying the Agreement itself by modifying
"Attachment C." Additions are not considered part of this Agreement until both
ICBL and Cable have signed the modification to Attachment C.
28. CABLE CUSTOMER LIST: ICBL will have access to Cable's customer
list for the business purposes described herein. ICBL may not in any way use,
reproduce or distribute this customer list or any customer information to any
party outside of ICBL and may only use such information to facilitate this
agreement. ICBL may not utilize this customer list for any purpose other than
internal operations.
29. AMENDMENTS FOR TECHNICAL ADVANCEMENTS: Due to changing technical
environment which this business is based on, Amendments to this Agreement may be
made to accommodate new advances in technology. Amendments are not considered
part of this Agreement until both ICBL and Cable have signed the Amendment.
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed
by their respective officers thereunto duly authorized as of the day and year
first above written.
US CABLE OF COASTAL-TEXAS, LP INTERNET CABLE CORPORATION
________________________ By: _____________________
G. Xxxxxx Xxxxx Xxxxxxx X. Xxxxxx
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Vice President President
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Date Date
Attachment B
MONTHLY CHARGES
A: Residential - $ 44.95 per month, which will include access for one
computer/one IP address.
(1) Residential subscription rates will only be available in structures
zoned for residential occupancy.
(2) Residential connections are not intended to be used as dedicated
server connection.
(3) Both parties agree to adjust residential rates to meet the
competitor's and/or market demand.
B: Small business- $250.00 per month, with $25.00 per IP and with a
maximum of 5 users/IP addresses.
(1) If located in a structure zoned for commercial occupancy, the
account will be classified as, at least, a small business.
(4) Further classification of this category will limited to those
companies with less than $750,000 annual sales.
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C. Commercial - (greater than $750,000 in annual sales) $500.00 per
month, with $25.00 per IP up to 100 users/IP addresses (flat rate of
$2,500.00 per month thereafter).
INSTALLATION FEE
INSTALLATION FEE WILL BE MUTUALLY AGREED UPON TO COVER FOR COST AND
REASONABLE LABOR RATES.
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ICBL Signature Title Date
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US Cable of Coastal-Texas, LP Title Date
Attachment C
Following are locations that are to be covered under the contract between
Internet Cable Corporation and US Cable signed November 21, 1997. The locations
listed below which have been signed by ICBL and US Cable are considered part of
the Agreement.
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New Location
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Includes (the following service areas):
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Additional Information:
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Additional Terms and Conditions:
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ICBL Signature Title Date
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US Cable of Coastal-Texas, LP Title Date
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