Internet Services Contract - Michigan Internet Communication Association and BeFirst.com
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Contract
August 17, 1999
This agreement between the Michigan Internet Communication Association (MICA)
and Befirst.com Inc. (Customer) is a one-year contract for Internet Services as
described below for a twelve-month period beginning on the date of installation
of service. Price below is for Internet service only and does not include
telephone company circuit fees. Invoices for Internet service will be sent
quarterly in advance of services rendered. Customer agrees to pay invoices on or
before the due date. Equipment and installation fees as quoted separately must
be paid in advance of installation of service.
<TABLE>
<CAPTION>
MICA.net Customer Start-up Billed
Location Location Description Installation Per/ Month Quarterly
Costs Charge
-----------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Southfield, MI Southfield, MI DS3 Hub Service @ (base cost) 9 $ 16,000. $ 48,000
Mbps-- 40 Mbps burst
Southfield, MI Startup fee: Hardware-- 100 MB $31,000. +
Fast Ethernet Router Interface/ $10,000. +
Router Processor Interface brd., $14,000. +
Watchguard Firewall, DLT Tape $7,000. +
Dry. Resiliency IP software
Total
$51,000.00
</TABLE>
Additional bandwidth above the initial 9 Mbps base cost, in 1 Mbps increments
will be billed at an additional $600.00 extra per month.
By signing below, client agrees to the terms and conditions of the Client
Service agreement on the reverse side of this document.
/s/ Norman J. Estigoy 8-18-99 /s/ Craig Pisaris- /s/ Courtney
--------------------------------------- Henderson Jones
Norman J. Estigoy Date -----------------------------------
CEO Customer Signature Date
Michigan Internet
Craig A. Pisaris / Courtney
-Henderson Jones
-----------------------------------
Print Name
President-CFO / Chairman
-----------------------------------
Title
BeFirst.com, Inc.
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Company Name
12751 Westlines Dr.
-----------------------------------
Address
Ft. Myers, FL 33913
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City, State, Zip
Michigan Internet 21863 Melrose Ave, Southfield, MI 48076
ph: (248) 355-1438 / fx: (248) 355-1488 / www.micanet / info@mica.net
<PAGE>
TERMS AND CONDITIONS
The following terms and conditions govern the Michigan Internet Communication
Association Ltd.'s ("MICA") provision of network services ("Services") to the
company or individual ("Customer") as described on the Client Service Agreement.
The Term "Services" is limited to the equipment, facilities, programming or
software provided by MICA to facilitate MICA Services but does not include
special access lines that may be utilized with MICA Services, or any equipment,
facilities, programming or software at the Customer site. Specifically, MICA
Services includes only that portion of connections on MICA-side of the
telecommunications provider's demarcation. In the case of Hub Services, the
complete connection to the Customer computer system is included. Hub Services
are defined as network services to Customer's computer systems co-located at
MICA facility receiving Internet services. If Services are, or become subject
to, a tariff filed with the Federal Communications Commission or any other
regulatory institution ("Tariff"), the terms and conditions of such Tariff,
including rates, shall govern Customer's use of the Services. Customer shall be
responsible for all connection and local access charges incurred by MICA which
apply to the Connection and if MICA is providing Customer the local loop,
Customer will he billed by MICA for such amounts. If MICA in providing the local
loop, the WAN port on Customer's router is the demarcation point. If Customer is
providing its own local loop, the demarcation point is considered to be the port
on MICA's router. Customer acknowledges that is has received a Product
Specification Sheet relating to the Connection. Also, Customer recognizes that
this agreement does not include equipment.
1. TERM. The initial Term begins on the first day of the month following MICA's
installation of MICA-side equipment or facilities and Internet service
established between MICA and customer routing equipment. The Term for Services
("Term") will be 3 years. After initial Term all Internet services shall
automatically renew for one month Terms unless Customer or MICA notifies the
other by thirty (30) days written notice that it does not wish to renew.
2. RATES. Rates are as set forth on Client Service Agreement Contract ("Order").
MICA will provide thirty (30) days written notice of any change in base prices.
Customer is responsible for service fees according to the new base prices for
Customer services installed based on the most recent Service Order(s). Billing
shall commence on the date the Connection is activated. Customer will be
invoiced quarterly for all amounts due and owing to MICA. All payments are due
within 30 days after the date of such invoice.
3. PAYMENT. Customer agrees to pay all charges incurred. Upon receipt of MICA
invoice Charges shall be due on the first day of each calendar quarter for that
quarter's (three months) service whether or not an invoice is received. Payment
shall be made in U.S. Dollars. Interest charges of 1 3/4 percent per month or
the highest rate permitted by law will accrue daily on all amounts not paid
within thirty (30) days of the date due. Customer will be deemed to be in
default hereunder if payment is not received within 30 days after the date of
such invoice, and in addition, all Customer services will be disconnected
without notice if any amounts are not paid within thirty (30) days of the date
due. Customer will pay all sales and use taxes, as well as duties or levies, on
Services. Customer's Services will not be initiated until Customer has paid
current Customer fees, Services startup fees, and the fees for the first month
of Services. If Customer wishes to cancel a Service Order before the Service is
initiated, the Customer must provide notice to MICA in writing with return
receipt, and such notice must be received by MICA prior to Service initiation.
When a Customer cancels before initiation, the first month Service fee will be
refunded but the startup fee will only be refunded when a new Service Order from
any other Customer utilizes the equipment purchased with said startup fees.
Because of the difficulties and inconvenience in attempting to establish the
loss, if Customer breaches this Client Service Agreement with respect to any
term of this agreement or terminates this contract early, MICA reserves the
right, in addition to any other remedies which maybe available to it, to
terminate this agreement and the services provided to Customer hereunder. In
addition, upon the occurrence of any breach hereunder, 75% of the cumulative
total of the balance on this agreement shall become due and payable as of that
date as liquidated damages and not as a penalty. Customer acknowledges that the
amounts payable pursuant to the preceding sentence are equitable compensation to
MICA, and are intended to reasonably compensate MICA for the losses which are
occasioned by Customer's failure to honor its obligations hereunder and that the
exact amount of damages is difficult or impractical to establish.
4. TERMINATION. MICA with (30) days prior written notice may terminate this
service agreement at any time.
5. RIGHTS AND OBLIGATIONS OF CUSTOMER.
A. Customer shall at its own expense provide all necessary preparations required
to comply with MICA's installation and maintenance specifications, and shall be
responsible for the costs of relocation of any equipment or telecommunications
circuits once Services are initiated. This includes a circuit from a location of
Customer's choice to MICA router (for all Services except Hub Services), circuit
termination and packet switching equipment to connect Customer systems or
networks to Services. For Hub Services, Customer shall provide the computer
system to locate at MICA facility.
B. Customer shall provide information related to Services as requested by MICA
to troubleshoot Services.
C. Customer shall not nor shall it permit or assist others to use Services for
any purpose other than that for which they are intended.
D. Customer shall not nor shall it permit or assist others to abuse or
fraudulently use Services, including but not limited to the following:
1. Obtaining or attempting to obtain service by any fraudulent means or device
with intent to avoid payment;
2. Accessing, altering, or destroying any information of another MICA Customer
by any fraudulent means or device, or attempting so do so; or
3. Using Services so as to interfere with the use of MICA network by other
Customers or authorized users, intentionally or not; or in violation of the law
or in aid of any unlawful act.
E. Customer acknowledges that MICA's network may only be used for lawful
purposes. MICA reserves the right to, from time to time, monitor Customer's
activity. The transmission of any material in violation of any United States or
State regulations is prohibited. This includes, but is not limited to,
copyrighted material, material legally judged to be threatening or obscene,
material protected by trade secret or material that is otherwise deemed to be
proprietary or judged by MICA to be inappropriate or improper such as
unsolicited bulk e-mail messages. MICA has zero tolerance for unsolicited bulk
e-mail messages and reserves the right to terminate the Connection in the event
that MICA becomes aware that Customer, or persons making use of Customer's
services or using the MICA network for the distribution of unsolicited bulk
e-mail messages.
F. Customer acknowledges that MICA offers Customer access to the Internet.
Customer hereby acknowledges that the Internet is not owned, operated, managed
by or in any way affiliated with MICA or any of its affiliates, and that it is a
separate network of computers, independent of MICA. Customer's use of the
Internet is solely at Customer's own risk and is subject to all applicable
local, state, national and international laws and regulations. Access to the
Internet is dependent on numerous factors, technologies and systems, many of
which are beyond MICA's authority and control.
G. Customer acknowledges that access to other networks connected to MICA's
network must comply with the rules appropriate for that other network. MICA
exercises no control whatsoever over the content of information passing through
its network.
6. EQUIPMENT OR SOFTWARE NOT PROVIDED BY MICA.
A. MICA shall not be responsible for the installation, operation or maintenance
of equipment or software not provided by MICA; nor shall MICA be responsible for
the transmission or reception of information by equipment or software not
provided by MICA.
B. Customer shall be responsible for the use and compatibility of equipment or
software not provided by MICA. In the event that Customer uses equipment or
software not provided by MICA that impairs the Customer's use of Services,
Customer shall nonetheless be liable for payment for Services. Upon notice from
MICA that the equipment or software not provided by MICA is causing or is likely
to cause hazard, interference or service obstruction, Customer shall eliminate
the likelihood of hazard, interference or service obstruction. Customer shall if
necessary pay MICA to troubleshoot difficulties caused by equipment or software
not provided by MICA. MICA will notify Customer by telephone before any such
charges are incurred.
C. MICA shall not be responsible if any changes in Services cause equipment or
hardware not provided by MICA to become obsolete, require modification or
alteration, or otherwise affect performance of equipment or hardware not
provided by MICA.
D. MICA includes this terms and conditions so that MICA can control the
performance of MICA network on an end-to-end basis and protect MICA network.
MICA's intent is to manage the router on a Communication basis with Customer for
leased line based services. This paragraph does not apply so dialup or Hub
Services.
1. MICA reserves the right to allow or refuse the make, model and/or software
revision of Customer provided router to be used as the gateway to MICA.
2. The Customer will set the initial configuration of the Customer's router
interface into MICA network as provided by MICA.
3. Customer must permit MICA to access the router's SNMP variables, and Customer
must, at MICA's request, permit one or more MICA network management systems to
be the recipient of SNMP TRAP messages.
4 Customer must offer MICA read/write access to the router's configuration
tables. Either Customer or MICA can administer the access controls (i.e., login
and password) to the router's configuration editor. MICA will only modify that
part of the router's configuration that controls the interface into MICA
network.
7. RIGHTS AND OBLIGATIONS OF MICA.
A. MICA shall install, operate and maintain Services. MICA shall not be
responsible for cabling that connects equipment not provided by MICA to MICA
Services.
B. MICA warrants that Services will be in good working order and will conform to
MICA's service specifications upon the date installed. The foregoing warranties
are in lieu of all other warranties, express or implied, including but not
limited to the implied warranties of merchantability and fitness for a
particular purpose.
For Web Hosting services, MICA will provide reasonable and industry acceptable
network security measures to help protect appropriate customer data files, with
respect to MICA web hosting services.
C. Customer's sole remedy for performance or non-performance of Services
pursuant to MICA's service specifications shall be repair or replacement of
Services.
D. MICA shall not be liable, either in contract or in tort, for protection from
unauthorized access of Customer's transmission facilities or Customer premise
equipment; or for unauthorized access to or alteration, theft or destruction of
Customer's data files, programs, procedure or information through accident,
fraudulent means or devices, or any other method, even should such access occur
as a result of MICA's negligence.
E. MICA shall not be liable for claims or damages caused by Customer's fault,
negligence or failure to perform Customer's responsibilities; claims against
Customer by any other party; any act or omission of any other party furnishing
services; or installation or removal of equipment furnished by any service
provider, except where caused by the gross negligence of MICA.
F. MICA shall not be liable for damages to Customer equipment caused by the
negligence or willful acts of MICA's officers, employees, agents or contractors
for loss through theft or vandalism of Customer equipment on MICA's premises,
and for damages caused by the use of Customer equipment or supplies .
G. For any other claim, Customer's damages, if any, shall be limited to those
actually proven as directly attributable to MICA, subject to the following
limitation: MICA will not be liable under any circumstances for any lost profits
or other consequential damages, even if MICA has been advised of the possibility
of such damages to Customer for any cause whatsoever, regardless of the form of
action, and whether in contract or in tort, including negligence, shall be
limited to the lesser of $100,000 or the monthly charges paid for Services from
the date damages were incurred, but in no event more than twelve (12) month's
charges for the Services that cause the damages.
H. Upon default by Customer, MICA may terminate Services and retake possession
of Services (before, during or after action to recover sums hereunder), retain
all payments made hereunder, and recover charges and costs owed by Customer as
well as any other damages MICA may have sustained because of Customer's default.
"Default" shall mean where Customer becomes subject of a voluntary or
involuntary bankruptcy, insolvency, reorganization or liquidation proceeding;
makes an assignment for the benefit of creditors; admits in writing its
inability to pay debts when due; or fails within ten (10) days after written
notice to remedy any breach of this Agreement.
I. MICA may interrupt Customer Services immediately after an attempt so notify
Customer by telephone at the telephone number of the technical contact specified
on the Service Order in any event where MICA Technical Review Committee has
determined Customer is in breach of paragraph 5 subparagraph B of this
Agreement. In the event such action is taken by MICA, Customer Services will be
reinstated when MICA's Technical Review Committee determines the condition has
been remedied by Customer. This paragraph takes precedence over paragraph 7
sub-paragraph G.
J. MICA MAKES NO WARRANTIES, EXPRESSED OR IMPLIED, INCLUDING, BUT NOT LIMITED
TO, THOSE OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, THIS INCLUDES
LOSS OF DATA RESULTING FROM DELAYS, NONDELIVERIES, MISSED DELIVERIES, OR SERVICE
INTERRUPTION HOWEVER CAUSED. USE OF ANY INFORMATION OBTAINED BY MICA'S NETWORK
IS AT CUSTOMER'S OWN RISK. MICA SPECIFICALLY DISCLAIMS ANY RESPONSIBILITY FOR
THE ACCURACY OR QUALITY OF INFORMATION OBTAINED THROUGH ITS SERVICES.
K. Customer understands that routine maintenance and periodic system repairs,
upgrades and reconfigurations may result in temporary impairment or interruption
in service. As a result, MICA does not guarantee continuous or uninterrupted
service and reserves the right from time to time to temporarily reduce or
suspend service without notice.
8. INDEMNITIES. MICA its affiliates, officers, directors, licensees, licensers,
will be indemnified and saved harmless by the Customer from and against all
loss, liability, damage and expense, including reasonable attorney's fees,
caused by:
1. Negligent acts or omissions of officers, employees, agents or contractors of
Customer that arise out of or are caused by the construction, installation,
maintenance, presence, or use or removal of systems, channels, terminal
equipment or software not provided by MICA that are connected to MICA Services
and that result in claims and demands for damages to property or for injury or
death to persons including payments made under any Worker's Compensation Law or
under any plan for employee's disability or death benefits;
2. Claims for liable, slander, invasion of privacy or infringement of copyright,
and invasion and/or alteration of private records or data arising from any
information, data or message transmitted over the network by Customer.
3. Claims for infringement of patents arising from the use of equipment and
software, apparatus and systems not provided by MICA in connection with
Services.
9. GENERAL.
A. Customer shall not assign or transfer the Order without the prior written
consent of MICA. MICA may, however, assign this Agreement to its parent company
or an affiliate with thirty (30) days notice. No Customer is allowed to resell
or redistribute Internet services provided by MICA including but not limited to
the following services; dial-in asynchronous modem connections, leased line, and
hub services. Retransmission of Internet connection services through microwave
and radio waves for reselling is prohibited. MICA may permit Customer to provide
Internet services to third parties only under an exclusive written agreement
between MICA and Customer.
B. MICA will not be responsible for performance of its obligations hereunder
where delayed or hindered by war, riots, embargoes, strikes, or other concealed
acts of workmen (whether of MICA or others), casualties, accidents or other
occurrences beyond MICA's control. MICA shall notify Customer in the event of
any of the foregoing occurrences. Should such occurrence continue for more than
sixty (60) days, MICA or Customer may cancel the Order for the affected Services
with no further liability.
C. The provision of Services by MICA is subject to MICA's continuing approval of
Customer's creditworthiness. Customer shall furnish financial information as
MICA may from time to time request to determine Customer's credit-worthiness.
D. Any legal action arising out of failure, malfunction or defect in Services
shall be brought within one (1) year of the occurrence or is deemed waived. Any
and all actions shall be brought in the appropriate court system in the State of
Michigan.
E. This Agreement may not be modified except by written amendment by the
parties. No agent, employee or representative of MICA or Customer has authority
to bind the parties to any representation or warranty unless such is
specifically included in this Agreement, the Order, or written amendments
thereto.
F. Any notice required to be given hereunder shall be in writing and shall be
deemed to have been delivered when deposited in the United States Mail,
registered or certified mail, return receipt requested with adequate postage
affixed and addressed to the person set forth in the signature block hereto or
to such other address as either party may provide to the other in accordance
with the provisions hereof. Notices may be sent to the administrative address of
record for the Customer. Notice so MICA shall be to:
Michigan Internet Communication Association, Ltd.
P.O. Box 2133, Southfield, MI 41037
Attention: Contract Administration
G. All users of Customer services are responsible for ensuring their use
complies with any policies in effect which may apply to their use. Further,
users of Customer services are responsible for determining which policies affect
their specific use. This may include but is not limited to the National Science
Foundation Appropriate Use Policy.
H. Customer is responsible for assessing its own need for property, casualty,
and liability insurance and shall obtain such insurance as it sees fit. Customer
shall bear the risk of loss to its own equipment and agrees to so make any
claims against the others for any property loss.
I. This Agreement shall be governed by the laws of the State of Michigan.
J. Should any part or portion of the Agreement be found invalid, the balance of
the provisions shall remain unaffected and shall be enforceable.
K. It is understood and agreed by the parties hereto that this instrument in
conjunction with the Customer Agreement constitutes the entire agreement between
the parties. Each party hereby specifically advises the other that any
representations inconsistent with the terms and conditions contained herein made
by any officer, agent or employee are wholly unauthorized and specifically
repudiated.
L. It is understood and agreed by the parties hereto that this instrument in
conjunction with the Customer Agreement constitutes the entire agreement between
the parties. Each party hereby specifically advises the other that any
representations inconsistent with the terms and conditions contained herein made
by any officer, agent or employee are wholly unauthorized and specifically
repudiated. The parties have entered into this Agreement as of the date
indicated on the first page front.
M. Neither party shall disclose any of the terms and conditions of this
agreement without the prior written notice of the other, provided, however, in
any of its sales and marketing materials MICA may refer to Customer as its
Customer.
N. This agreement may be executed in two or more counterparts, each of which
shall be deemed to be an original for all purposes hereof. This agreement
contains the entire agreement of the parties hereto and with respect to the
matters covered hereby and supersedes any other prior or simultaneous agreement
related to such matters.
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