EXHIBIT 10.5 - Services Agreement dated May 1, 2000 Between Pipeline
Technologies, Inc. and Service Provider
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PORTIONS OF THIS DOCUMENT CONTAINING "XXXXXX" IS MATERIAL
WHICH IDENTIFIES THE PARTY TO THIS AGREEMENT AND HAS
BEEN OMITTED PURSUANT TO A REQUEST FOR CONFIDENTIAL
TREATMENT AND FILED SEPARATELY WITH THE COMMISSION.
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SERVICE AGREEMENT
This SERVICE AGREEMENT ("Agreement") is hereby made and entered into, as of this
1st day of May, 2000 (the Effective Date), by and between XXXXXXXXXXXX
("Company"), and Pipeline Technologies, INC. ("Customer"). Company and Customer
are also referred to herein each as a "Party" and collectively as the "Parties."
1. SERVICES. Customer hereby orders, and Company hereby agrees to provide, the
Services, as specifically described on Schedule A, attached hereto and
incorporated by reference herein, as revised from time to time by Company in
accordance with generally applicable changes in Company's service offerings. The
Services will be provided at the rates, and in accordance with the terms and
conditions, set forth in this Agreement and on Schedule A. Services ordered
hereunder are subject to credit approval. Customer hereby authorizes Company to
act as its agent in placing orders with such carriers and other entities as
shall be reasonably necessary for Company to provide the Services to Customer.
Nothing in this Agreement shall be deemed to prohibit or otherwise limit Company
from selling and providing the Services at retail directly to end users or at
wholesale to other entities for resale to end users
2. TERM. This Agreement shall be effective as of the Effective Date, shall
continue in full force and effect for the term set forth on Schedule A, hereto,
unless earlier terminated pursuant to Section 8, hereof, and shall be
automatically renewed for one or more of the renewal terms set forth on Schedule
A, unless a Party notifies the other Party in writing of its intent not to renew
at least ninety (90) days prior to termination of the then current term of this
Agreement (the "Term"). In the event, however, that Company is unable to
maintain such agreements and facilities as shall be necessary to provide the
Services at rates and on terms and conditions reasonably acceptable to Company
or Company's performance under this Agreement is held by the Federal
Communications Commission (FCC), one or more state regulatory commissions (State
Commissions), or a court of competent jurisdiction to violate any FCC or State
Commission order, regulation, rule or policy, Company may terminate this
Agreement, pursuant to Section 8, without further liability to Customer.
3. ADDITIONAL RESPONSIBILITIES OF COMPANY. Company shall establish, and from
time to time may amend, reasonable service order processing forms and
procedures, shall accept and process orders for the Services submitted by
Customer on such forms and in conformance with such procedures, and shall not
unreasonably discriminate against orders for the Services submitted by Customer.
No order for the Services shall be binding upon Company unless and until such
order has been approved and accepted by Company. Company reserves the right to
verify orders for the Services which do not comply with ordering requirements
established by Company. Company shall exercise reasonable, good faith efforts
(i) to provide at the request of Customer the Services to Subscribers on a
timely basis; (ii) to secure, operate and maintain, or caused to be operated and
maintained, such services and facilities as shall be necessary to provide the
Services; and (iii) to maintain all necessary and appropriate relationships with
network and other service providers. Company shall provide the Services in
accordance with generally accepted industry standards. Company shall provide
Customer with such customer support as shall be reasonable and appropriate.
4. ADDITIONAL RESPONSIBILITIES OF CUSTOMER. Customer shall use its best efforts
to market the Services. In so doing, Customer shall act in a lawful, ethical and
honest manner at all times, and shall resell the Services in accordance with all
applicable laws, statutes and ordinances, orders of courts of competent
jurisdiction, and rules, regulations, policies and orders of the FCC and State
Commissions, as well as other regulatory and governmental authorities. Without
limiting the generality of the above, Customer shall (i) secure and maintain
such regulatory authorizations as shall be necessary and appropriate for the
provision of the Services to Subscribers, (ii) not use the Services, or
knowingly allow the Services to be used, for any unlawful or fraudulent purpose
or in a manner which will interfere with the use of the Services by others, and
(iii) promptly report to Company all complaints received from Subscribers
regarding the Services. On the Effective Date, and monthly thereafter on or
before the last day of each month, Customer shall provide Company with a written
forecast of anticipated usage of the Services during the immediately following
three months. Customer shall maintain all insurance and/or bonds required by
law, as well as such other insurance and/or bonds as Company shall reasonably
require, all in such amounts as Company shall reasonably specify and issued by
companies reasonably acceptable to Company. Each insurance policy shall name
Company as an additional insured, shall waive subrogation against Company, shall
contain a severability of interest/cross liability endorsement, and shall not be
subject to cancellation or non-renewal without at least thirty (30) days prior
written notice to Company. Customer shall furnish Company with certificates of
insurance on the Effective Date. From time to time, at Company's written
request, Customer shall promptly meet with Company to discuss, and shall
COMPANY - ______
CUSTOMER - ______
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provide to Company such information as Company shall reasonably request
regarding, activities undertaken by Customer pursuant to this Agreement.
Customer is solely responsible for providing to Subscribers the start-up
software allowing the Subscriber to access the Company Internet access network.
Such start-up software must comply with the Company network specifications and
requirements, including, but not limited to, the ability to track the origin of
the Subscriber. At Customers request, Company shall supply, at the rate and
charges set forth in Schedule A, to Customer a master copy CD disk of the
"XXXXXXXXXXX" XXXXXX Internet access start-up software. Customer is solely
responsible for creating replicas for distribution to Subscribers, any artwork
design or customization of the software.
End users who subscribe to services provided by Customer using the Services
(Subscribers) shall be customers of Customer and not of Company, and Customer
shall be solely responsible for providing service to Subscribers. Without
limiting the generality of the above, Customer shall be responsible for
contracting with, ordering, modifying and terminating services for, billing,
collecting from, and performing customer service functions for (including,
without limitation, responding to Subscribers inquiries and complaints,
reporting service outages and other troubles) Subscribers. Excluding mutually
agreed upon Company supplied Technical Support for Internet access, Company
shall not be required to deal directly with Subscribers. Upon Customers request
Company will supply Customer the interface to the Company's authentication
system and billing software enabling Customer to bill Subscribers for Internet
access services at rates outlined in Schedule A. Customer agrees to provide any
hardware and software component(s) required for Company to bill Customer and/or
for Customer to bill Subscribers for Services rendered as outlined in Schedule
A. Company will provide training at Companies facilities for Company supplied
billing software at rates as set forth in Schedule A. Customer shall not, during
the Term, directly or indirectly, individually or jointly, for itself or as
agent, or on behalf of or in conjunction with any person, firm, association,
partnership, or corporation, or as a partner in any partnership, or as a
shareholder of any corporation, or by or through or on behalf of any other
person, sell or resell to any person, firm or entity, services of another
provider which are substantially similar to the Services, except in geographic
areas in which Company does not offer the Services, or elects not to provide the
Services to Customer. During the Term and for one (1) year thereafter, Customer
shall not, without the written consent of Company, solicit, induce, attempt to
employ, or employ any officer or employee of Company.
5. RATES AND CHARGES. Company shall charge Customer, and Customer shall pay to
Company, the usage-sensitive, recurring and non-recurring rates and charges set
forth on Schedule A, hereto, for the Services. The rates and charges set forth
on Schedule A are in lieu of any other tariffed or contractual discounts,
special pricing or term/volume commitments. The rates and charges set forth on
Schedule A may be increased by Company, in a proportionate amount, and at the
same time, in the event that the rates and charges paid by Company for the
services and facilities used to provide the Services are increased. Company may
pass through to Customer any amounts paid by it, directly or indirectly, to (i)
governmental authorities, (ii) entities acting on behalf of governmental
authorities, or (iii) local exchange carriers in conjunction with its provision
of the Services, including, without limitation, access charges, regulatory fees,
and assessments associated with universal service, number administration, number
portability, and telecommunications relay service, as well as amounts it is
required to pay to other entities as a result of federal or state regulatory
mandates, including, without limitation, local exchange carriers and payphone
service providers. In computing usage-sensitive charges, usage of the Services
shall be rounded up to the nearest usage increment as set forth on Schedule A,
with the initial usage increment listed on Schedule A.
Immediately following the end of the Ramp-up Period Customer shall be liable for
the monthly minimum usage charge ("Minimum Monthly Commitment"), both as set
forth on Schedule A. In the event that Customer fails to satisfy the Minimum
Monthly Commitment in a given month, Customer shall be billed in the amount of
the Minimum Monthly Commitment rather than for its actual usage of the Services.
Customer shall not be excused from paying Company for the Services provided to
Customer because all or a portion of such Services were fraudulently used. If
Company discovers fraudulent use of the Services, it may, but is not required,
to take such actions as it deems appropriate to prevent such fraudulent usage.
If Customer discovers fraudulent use of the Services, it shall promptly notify
Company. Customer shall provide Company with valid and appropriate tax exemption
certificates for all applicable jurisdictions (federal, state and local).
Customer shall be responsible for properly charging taxes to Subscribers and for
the proper and timely reporting and payment of applicable taxes to the taxing
authorities, and shall defend and indemnify Company from payment and reporting
of all applicable federal, state and local taxes, including, but not limited to,
gross receipts taxes, surcharges, franchise fees, occupational, excise and other
taxes (and penalties and interest thereon), relating to the Services. If
Customer fails to provide and maintain the required certificates, Company may
charge Customer and Customer shall pay such applicable taxes.
6. PAYMENT TERMS. Rates and charges for the Services, excluding Flat Rate Voice
Ip, shall be billed monthly. Flat Rate Voice Ip accounts will be billed weekly
and Company will collect payment from Customer via bank draft of Customers bank
account. Usage sensitive charges shall be billed in arrears. Recurring charges
COMPANY - ______
CUSTOMER - ______
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shall be billed in advance. Nonrecurring charges shall be billed upon completion
of the associated activity. All invoices shall be due and payable within thirty
(30) days of the date of the invoice, unless otherwise specified on Schedule A,
hereto (the "Due Date"). Payments shall be considered past due if not received
by Company on or before the Due Date. A late payment charge not to exceed one
and one-half percent (1.5%) of the past due balance may be applied by Company to
any amount not paid by Customer on or before the Due Date. All payments,
excluding Flat Rate Voice Ip, shall be made by Customers company check or wire
transfer to such account at such financial institution as Company shall from
time to time designate. In the event that Customer in good faith disputes a
charge, it shall so notify Company in writing within thirty (30) days of its
receipt of the invoice containing the disputed charge, including in such notice
an explanation and all available supporting documentation. Company shall respond
to said notice within thirty (30) days of its receipt of the notice and
thereafter Company and Customer shall attempt in good faith to resolve the
dispute. In the event that the Parties are unable to resolve the dispute, either
Party may submit the matter to arbitration pursuant to Section 14, hereof, in
which event, the dispute shall be resolved through binding arbitration. Customer
shall pay all disputed amounts in accordance with this Section 6 subject to
resolution of the dispute. All invoices not disputed by Customer within thirty
(30) days of Customers receipt thereof shall be final and binding upon Customer.
7. SECURITY. In order to reasonably safeguard Company's interests, Customer
shall provide Company on the Effective Date with a suitable deposit as a
guarantee of payment for its use of the Services and the performance by Customer
of its obligations hereunder ("Security Deposit"). The initial Security Deposit
shall be as set forth on Schedule A, hereto. The Security Deposit may be in the
form of cash or such irrevocable commercial letter of credit, bond, or other
instrument, or assurance as shall be reasonably acceptable to Company. Company
may increase the Security Deposit at anytime during the Term if (i) the amount
of the Security Deposit is less than the aggregate amount Company billed
Customer for use of the Services during the immediately two (2) preceding
months, (ii) Customer fails to timely pay bills rendered to it on two (2)
occasions during any six (6) month period, or (iii) Company reasonably believes
that due to Customers financial condition, additional security is required to
safeguard its interests. Company may draw upon the Security Deposit at any time
for payment of any amounts owed to it by Customer. In the event that Company so
draws upon the Security Deposit, Customer shall be required within five (5)
business days of written notice of such draw to replenish the amount drawn by
Company. Upon termination or expiration of this Agreement, Company may draw upon
the Security Deposit for payment of Customer's final bill or any other amounts
then owed to it by Customer. The fact that Customer has provided the Security
Deposit neither relieves Customer of its obligations hereunder to timely pay
amounts owed to Company nor constitutes a waiver or modification of Company's
right to terminate this Agreement under Section 8, hereof, for nonpayment of
such amounts.
8. TERMINATION/DEFAULT. This Agreement may be terminated without liability to
the terminating Party: (i) at any time by mutual agreement of the Parties; (ii)
by Company (a) upon five (5) days written notice in the event that Customer
fails to pay any amount due Company by the Due Date, if such breach is not cured
within the notice period; (b) upon five (5) days written notice in the event
that Customer fails, directly or indirectly, to satisfy its Minimum Monthly
Commitment, if such breach is not cured within the notice period; (c) upon
written notice in the event that Customer fails to provide on the Effective
Date, or increase or replenish within five (5) days following Company's request
therefor, the Security Deposit; (d) upon written notice pursuant to Section 2
hereof; or (e) upon five (5) days written notice in the event that Customer
engages in fraudulent or deceptive conduct, or any conduct which tends to
discredit, dishonor, reflect adversely upon or injures the reputation of
Company, in reselling the Services if Customer does not cease engaging in such
conduct within the notice period; (iii) by the non-breaching Party upon five (5)
days written notice in the event of a material breach by the other Party if such
material breach is not cured within thirty (30) days of written notice of the
breach by the terminating Party; (iv) by Customer upon thirty (30) days written
notice in the event that Company increases the rates for the Services pursuant
to Section 5, hereof, by in excess of twenty percent (20%); or (v) immediately
upon written notice by a Party upon institution by or against the other Party of
any proceeding for relief under the Bankruptcy Code, the insolvency of the other
Party or the appointment by a court of competent jurisdiction of a receiver of
the other Party's property. In the event of a material breach by a Party under
this Agreement, the non-breaching Party, in addition to having the right to
terminate this Agreement without liability, may pursue such other remedies as
may be available to it at law or in equity. In the event of a material breach by
Customer of this Agreement, Company may immediately, at its sole discretion and
without liability to Customer, also (i) suspend the provision of the Services to
Customer; (ii) cease accepting and processing new orders for the Services from
Customer; (iii) withhold from Customer delivery of billing records; (iv)
foreclose on any security interest or lien it may have in Customers assets; (v)
bill and collect for the Services directly from Subscribers; and/or (vi) market
the Services directly to Subscribers. Neither termination nor expiration of this
Agreement shall relieve a Party of liabilities previously accrued hereunder.
COMPANY - ______
CUSTOMER - ______
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9. LIMITATIONS ON LIABILITY. EXCEPT AS OTHERWISE EXPRESSLY PROVIDED HEREIN,
COMPANY MAKES NO WARRANTY, EITHER EXPRESS OR IMPLIED, CONCERNING THE SERVICES,
INCLUDING, WITHOUT LIMITATION, WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A
PARTICULAR PURPOSE OR USE. EXCEPT AS OTHERWISE EXPRESSLY PROVIDED HEREIN,
COMPANY SHALL NOT BE LIABLE TO CUSTOMER OR ANY OTHER THIRD PARTY FOR ANY DAMAGES
ARISING OUT OF MISTAKES, ACCIDENTS, ERRORS, OMISSIONS, INTERRUPTIONS, OR DEFECTS
IN TRANSMISSION, OR DELAYS ARISING OUT OF OR RELATED TO THIS AGREEMENT OR THE
OBLIGATIONS OF COMPANY PURSUANT TO THIS AGREEMENT. COMPANY SHALL NOT BE LIABLE
FOR ANY DAMAGES, COSTS OR CLAIMS ARISING FROM SERVICES, FACILITIES OR EQUIPMENT
NOT FURNISHED BY IT, OR FROM ANY OTHER EVENT THAT PREVENTS COMPANY FROM
PERFORMING ITS OBLIGATIONS UNDER THIS AGREEMENT, IF THAT EVENT IS BEYOND THE
REASONABLE CONTROL, AND WITHOUT THE FAULT OR NEGLIGENCE, OF COMPANY. IN NO EVENT
SHALL A PARTY BE LIABLE FOR ANY INDIRECT, SPECIAL, INCIDENTAL, OR CONSEQUENTIAL
DAMAGES (INCLUDING PROFITS) REGARDLESS OF THE FORM OF ACTION, WHETHER IN
CONTRACT, TORT, STRICT LIABILITY, OR OTHERWISE, ARISING OUT OF THE PERFORMANCE
OF THIS AGREEMENT.
In the event of a complete loss of the Services (Service Outage), Company shall
provide Customer with a credit equal to the proportion of the monthly recurring
charge associated with the period of the Service Outage (Credit); provided,
however, that a Credit shall not be due in conjunction with Service Outages (i)
caused by an individual or entity other than Company; (ii) caused by equipment,
facilities, or services not provided by Company; (iii) caused by scheduled
maintenance or repair activities; or (iv) during any period in which Company is
not permitted access by Customer to locations and/or facilities necessary to
restore the Services. A Service Outage shall commence when Customer reports the
outage to Company and shall end when the availability of the Services is
restored. In no event shall a Credit exceed the amount of the monthly recurring
charge for the Services taken by Customer.
10. INDEMNIFICATION. Both Parties hereby agrees to defend, indemnify, and hold
harmless the other Parties parents, employees, officers, managers, agents,
affiliates and subsidiaries from all claims and liabilities, including costs and
expenses and reasonable attorney's fees attributed to, arising out of or
resulting from (i) a material breach of this Agreement; or (ii) the sale, use,
adequacy, and availability of the Services provided by Customer to Subscribers.
The obligations set forth in this Section 10 shall survive any termination of
this Agreement.
11. PROPRIETARY INFORMATION\CONFIDENTIALITY. Each Party acknowledges that during
the Term the other Party (the "Proprietary Party") may disclose to it, or it may
receive in performing its obligations under this Agreement, information which is
considered proprietary, confidential and/or competitively-sensitive by the
Proprietary Party ("Proprietary Information") and agrees to take all reasonable
and necessary steps to preserve the confidentiality of all Proprietary
Information, whether communicated by the Proprietary Party, or received, in
writing, electronically, orally or otherwise. Proprietary Information shall
include information and data regarding or relating to present or future pricing,
discount policies, marketing strategies, commission plans, business plans and
projections, sales goals, profit margins, financial data, markets and suppliers,
legal and regulatory data, prospective and/or actual regulatory strategies,
technical information, techniques, new ideas, inventions, developments,
names/addresses/telephone numbers of Subscribers, credit histories and trade
names of Subscribers, rates of attrition, and such other confidential
engineering, technical, financial, business, marketing, promotional and sales
data as a Disclosing Party shall designate as "proprietary," either in writing
or orally, all of which are hereby identified and acknowledged to be Proprietary
Information. This Agreement and its contents shall be deemed to be Proprietary
Information of both Parties. Proprietary Information shall not include (i)
information which at the time of disclosure was generally available to the
public; (ii) information which subsequent to its disclosure by the Proprietary
Party to the receiving Party, is published or otherwise becomes available to the
public through any means other than an act or omission of the receiving Party;
(iii) information which was previously known to the receiving Party free of any
obligation to keep it confidential or which is subsequently developed in good
faith by the receiving Party; and (iv) information rightfully acquired in good
faith from a third party on a non-confidential basis without breach of an
agreement to maintain said information in confidence. Proprietary Information
disclosed to a Party is and shall remain the property of the Proprietary Party.
By disclosing Proprietary Information, the Proprietary Party does not relinquish
any of its proprietary rights and interests therein and hereby specifically
reserves all such proprietary rights and interests to said Proprietary
Information. A Party shall return (or, with the consent of the Proprietary
Party, which shall not be unreasonably withheld, destroy) all Proprietary
Information and all copies thereof, including, without limitation, written and
electronic copies, as well as all summaries, notes or other documents, materials
or things containing Proprietary Information, to the Proprietary Party promptly
upon the reasonable written request of the Proprietary Party and upon
termination of this Agreement.
COMPANY - ______
CUSTOMER - ______
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Proprietary Information shall not be used, or allowed to be used, by the
receiving Party for any purpose other than to facilitate its performance under
this Agreement or disclosed to any third party without the Proprietary Party's
prior written consent. The receiving Party shall use at least the same degree of
care and discretion it uses with regard to its own proprietary or confidential
information to prevent the disclosure, unauthorized use or publication of
Proprietary Information, including, but not limited to taking steps to: (i)
advise all receiving Party employees with access to the Proprietary Information
of the obligation to protect the Proprietary Information; and (ii) restrict
disclosure of the Proprietary Information solely to its employees with a need to
know. A receiving Party may disclose Proprietary Information (i) if required to
do so by law; or (ii) if ordered to do so by a court or other governmental
authority of competent jurisdiction; provided, however, that the receiving Party
shall provide the Proprietary Party prior written notice of any such disclosure
and exercise commercially reasonable efforts to both afford the Proprietary
Party an opportunity to contest the disclosure and to limit the extent of the
disclosure to the maximum extent practicable. The obligations set forth in this
Section 12 shall survive termination of this Agreement.
12. RELATIONSHIP OF PARTIES. This Agreement constitutes Customer only as an
independent contractor and not as a general or special agent or representative
of Company and does not create a partnership or joint venture between Company
and Customer. This Agreement does not confer on Customer, and Customer shall not
represent that it has by virtue of this Agreement, any status, power, or
authority other than to the extent expressly provided herein. Customer shall not
have the right, power or authority, nor shall hold itself out as having the
right, power or authority, to create any contract or obligation, express or
implied, binding Company. Customer shall be solely responsible for the manner
and means by which it performs, as well as expenses incurred by it in
performing, its obligations under this Agreement. Customer shall have no right
by virtue of this Agreement in any other business ventures of Company or any
revenues, profits or losses derived therefrom, and neither Customer nor
Customers employees, agents or representatives shall have any claim for
compensation, benefits or reimbursement against Company.
13. TRADEMARKS. Customer recognizes the right, title and interest of Company in
and to its name, service marks, trademarks and copyrights ("Company
Trademarks"), acknowledges that the Company Trademarks and the registrations
thereof are good, valid and enforceable in law and equity, and agrees, during
the Term and thereafter, not to engage in any activities, directly or
indirectly, which may contest, dispute or otherwise impair the right, title and
interest of Company in and to the Company Trademarks. Customer shall not acquire
or claim any right, title or interest in or to the Company Trademarks through
purchase and use of the Services, and nothing in this Agreement shall constitute
a general license authorizing the use of the Company Trademarks. Customer shall
not use the Company Trademarks without Company's prior written approval and then
only to the extent and in the manner so approved and subject to such rules and
regulations as Company shall from time to time promulgate in its sole
discretion.
14. ARBITRATION. Arbitrations under this Agreement shall be conducted in
accordance with the United States Arbitration Act (Title 9, U.S. Code),
notwithstanding any choice of law provision in this Agreement, and under the
Commercial Arbitration Rules of the American Arbitration Association ("AAA").
The arbitration shall be conducted in the City of XXXXX, XXXXX. The decision of
the arbitrator shall be final and binding upon the parties. Judgment upon the
arbitration award may be entered in any court having jurisdiction. In rendering
any decision or making findings of fact the arbitrator shall apply the express
intentions of the parties set forth in this Agreement and the laws of the State
of XXXXX, including, without limitation, any applicable statutes, regulations
and binding judicial decisions, as such would be applied by the courts of the
State of XXXXX and the United States District Court for the Northern District of
XXXXX.
15. MISCELLANEOUS. All notices and other communications required or permitted
hereunder shall be in writing and shall be deemed to have been given when
received by hand delivery, telecopy (followed by notice transmitted, postage
prepaid, by U.S. registered or certified mail, return receipt requested), or
overnight delivery service, with acknowledged receipt, addressed to the other
Party at the address first above written for that Party, or to such other
addresses as such Party shall have given for such purpose by notice hereunder.
Unless otherwise provided herein, this Agreement may be amended only by an
instrument in writing duly executed by all Parties. Any waiver by any Party of
any breach of or failure to comply with any provision of this Agreement by the
other Party shall not be construed as, or constitute, a continuing waiver of
such provision, or a waiver of any other provision hereof. If any provision or
provisions of this Agreement are determined to be invalid or contrary to any
existing or future law, statute or ordinance of any jurisdiction or any order,
rule or regulation of a court or regulatory or other governmental authority of
competent jurisdiction, such invalidity shall not impair the operation of or
affect those provisions in any other jurisdiction or any other provisions hereof
which are valid, and the invalid provisions shall be construed in such manner as
shall be as similar in terms to such invalid provisions as may be possible,
consistent with applicable law. This Agreement may not be assigned by a Party
without the prior written consent of the other Party, which consent shall not be
unreasonably withheld; provided, however, that Customer shall be deemed to
consent to any assignment of this Agreement by Company to an Affiliate. The
rights and obligations under this Agreement shall survive any merger or sale of
a Party and shall be binding upon the successors and permitted assigns of each
Party. This Agreement shall be binding upon and inure to the benefit of the
Parties hereto, and their respective assigns, heirs, successors and legal
representatives. It is not the intent of the Parties that there be any third
party beneficiaries of this Agreement, and this Agreement is exclusively for the
benefit of the Parties hereto or their respective assigns. The Parties covenant
to one another to execute and deliver such further instruments and do such
further reasonable acts and things as may reasonably be required to carry out
the intent and purposes of this Agreement.
COMPANY - ______
CUSTOMER - ______
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THIS AGREEMENT SETS FORTH THE ENTIRE UNDERSTANDING OF THE PARTIES WITH RESPECT
TO THE SUBJECT MATTER HEREOF AND SUPERSEDES ALL PRIOR AGREEMENTS AND COLLATERAL
COVENANTS, ARRANGEMENTS, COMMUNICATIONS, REPRESENTATIONS AND WARRANTIES, WHETHER
ORAL OR WRITTEN, BY EITHER PARTY (OR ANY OFFICER, DIRECTOR, EMPLOYEE OR
REPRESENTATIVE OF THEREOF) WITH RESPECT TO THE SUBJECT MATTER HEREOF. THIS
AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE
STATE OF XXXXXXX, APPLICABLE TO AGREEMENTS MADE AND TO BE ENTIRELY PERFORMED
THEREIN, WITHOUT REGARD TO ITS PRINCIPLES OF CHOICE OF LAW. THE PARTIES AGREE
THAT ANY ACTION TO ENFORCE OR INTERPRET THE TERMS OF THIS AGREEMENT SHALL BE
INSTITUTED AND MAINTAINED ONLY IN THE FEDERAL DISTRICT COURT FOR THE NORTHERN
DISTRICT OF XXXXXXX, OR IF JURISDICTION IS NOT AVAILABLE IN FEDERAL COURT, THAN
A STATE COURT LOCATED IN XXXXXXX, XXXXXXX. CUSTOMER HEREBY CONSENTS TO THE
JURISDICTION AND VENUE OF SUCH COURTS AND WAIVES ANY RIGHT TO OBJECT TO SUCH
JURISDICTION AND VENUE.
This Agreement may be signed in any number of counterparts, each of which shall
be an original for all purposes, but all of which together shall constitute one
agreement.
IN WITNESS WHEREOF, the Parties have caused this SERVICE AGREEMENT to be
executed as of the day and year first above written.
CUSTOMER COMPANY
Pipeline Technologies, Inc.
XXXXXXXXXXXXXXXXXXXXX
By: /s/ Tim Murtaugh By: XXXXXXXXXXXXXXXXXXXXX
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Name: Tim Murtaugh Name: XXXXXXXXXXXXXXXXXXXXX
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Title: President Title: XXXXXXXXXXXXXXXXXXXXX
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COMPANY - ______
CUSTOMER - ______
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COMPANY - ______
CUSTOMER - ______
SCHEDULE A
SERVICES:
Dial Up Internet Access: Service includes-
3 (POP 3) email accounts
24 X 7 technical support
Newsgroups
5 megabytes for personal web space
Unlimited Internet access
Professionally staffed technical
support(1) services and
personnel 24 hours a day, 7 days
a week. Includes trouble
shooting Subscriber's technical
problems relating to the
Internet service (i.e.
connectivity, email, and
start-up software(2)
installation assistance)
Voice Ip Service: Service includes-
PIN numbers
Monthly CDR file for billing
Flat Rate Voice Ip Service:(3) Service Includes-
Unlimited On-net Voice Ip calling
for a fixed monthly fee
(1) Technical support does not cover computer hardware, desktop installed
software, modem or problems derived from the Subscriber's personal computer
other than Internet service
(2) Provided only for Internet access start-up software automated sign-up
software licensed from XXXX
(3) Flat Rate Service is for residential customers only
Term: Initial: Two (2) Years
Renewal: One (1) Year
Payment Terms (excluding Flat Rate): Twenty (20) Days
Ramp-Up Period Ninety (90) Days
Minimum Monthly Commitment Fifty thousand ($50,000) dollars
Initial Security Deposit: To be determined
INTERNET ACCESS: $5.95 per account per month
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Customized Start-up software $299.00(3)
XXXXXXXXXXX Start-up Software (per license) $4.25
Additional email accounts $1.00 per month per account
(3) includes set up fee and master CD
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COMPANY - ______
CUSTOMER - ______
VOICE IP (post paid): $.02 per minute
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Voice Ip Usage Increments: Initial: 6 Seconds
Additional: 6 Seconds
Off net 1+ termination (completed call) By LATA - See Attached Schedule
Off net 800 origination (completed call) $.079
FLAT RATE VOICE IP
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On-Net traffic only (per account) $20.00 per month
On Net Origination to 0ff-Net traffic
Termination By LATA - See Attached Schedule
Off Net Origination to On\Off Net Termination $.079
Flat Rate Voice Ip Payment terms Weekly
BILLING RATES
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Billing Software Training $20.00 per hour
Web Interface (viewing Voice Ip real
time billing) $1800.00 (one time)
Billing Set-up To be determined
COMMERCIAL WEB HOSTING:
-----------------------
BASIC PLAN $14.95/month
25 Megabytes of web space for web site, 1000 MB data transfer per month,
Individual FTP Directory, CGI-Bin Directory, 25 E-mail accounts, Unlimited
E-mail Forwarding, E-mail Auto-responder, Password Protected Directories, Web
Statistics and Log Files, Daily Backups, On Site BBS
INTERMEDIATE PLAN $19.95/month
Same as Basic Plan with:
35 Megabytes of web space for web site
ADVANCED PLAN $29.95/month
Same as Intermediate Plan with:
40 Megabytes of web space for web site
2000 MB data transfer per month
Excessive Bandwidth $1.00 per megabyte per month
Domain Registration $125.00
(Includes 2 year InterNic
registration)
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<PAGE>
COMPANY - ______
CUSTOMER - ______
Business Credit Application
Company Information:
Name
----------------------------------------
Street Address
----------------------------------------
City, State & Zip
----------------------------------------
Contact Phone
----------------------- ---------------------------
Date Established
-----------------------
Type of Business: Credit Amount Requested
----------------------- ----------
Sole Proprietorship Corporation Partnership
If sole proprietorship or partnership, please complete personal application
Bank Information:
Name Contact Person
----------------------- ---------------------
Branch Location Contact Number
----------------------- ---------------------
Account Number
-----------------------
Trade References:
Name Contact Name
----------------------- ---------------------
Account Number Contact Number
----------------------- ---------------------
Name Contact Name
----------------------- ---------------------
Account Number Contact Number
----------------------- ---------------------
Name Contact Name
----------------------- ---------------------
Account Number Contact Number
----------------------- ---------------------
The above information is provided for the purpose of obtaining credit and is
warranted to be true. We hereby authorize the references listed above to release
financial information and credit reports to XXXXXXXXXXXXXXX.
Name Title
----------------------------------- -------------------------------
Signature Date
----------------------------- -------------------------------
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