Agreement for Internet Access Services - Worldwide Wireless Systems Inc. and FreeLinQ Communications Corp.
AGREEMENT FOR INTERNET
ACCESS SERVICES
This Agreement for Internet Access Services (the "Agreement"), dated
October 21, 1998 (the "Effective Date"), is made and entered into by and between
Worldwide Wireless Systems Inc., a Delaware corporation ("Worldwide"), and
FreeLinQ Communications Corporation, a Nevada corporation ("FreeLinQ").
WHEREAS, FreeLinQ has entered into that certain Agreement (the "Trump
Agreement"), dated as of June 25, 1998, with Trump New Media LLC, a New York
limited liability company ("Trump New Media"), pursuant to which, among other
things, FreeLinQ has agreed to provide Trump New Media with certain internet
services as more fully set forth in the Trump Agreement;
WHEREAS, FreeLinQ anticipates entering into additional contracts or
other arrangements (the "Additional Agreements") to provide video on demand
("VOD"), internet and other services (the "FreeLinQ Channel");
WHEREAS, FreeLinQ desires that Worldwide provide internet services to
residential and commercial properties identified in the Trump Agreement and the
Additional Agreements, and Worldwide has the necessary personnel, experience and
equipment to perform the internet services and is willing to perform such
internet services subject to the terms and conditions hereinafter set forth; and
WHEREAS, Worldwide and FreeLinQ desire to set forth the terms and
conditions of the marketing efforts to be conducted by them in connection with
the solicitation of users for the internet services to be provided by Worldwide;
NOW THEREFORE, in consideration of the premises and the
representations, warranties and covenants and mutual agreements contained
herein, FreeLinQ and Worldwide hereby agree as follows:
1. INTERNET SERVICES AND SUPPORT.
1.1. Services. Subject to the terms and conditions of this Agreement,
Worldwide will provide (i) the internet access services set forth
on Exhibit A (the "Residential Internet Services") to those
residential buildings set forth on Exhibit A (the "Residential
Buildings"), (ii) the internet access services set forth on
Exhibit B (the "On-Net Commercial Internet Services") to those
commercial buildings set forth on Exhibit B where FreeLinQ has an
established wired infrastructure to provide internet access (the
"On-Net Commercial Buildings") and (iii) the internet access
services set forth on Exhibit C (the "Off-Net Commercial Internet
Services" and together with the Residential Internet Services and
the On-Net Commercial Internet Services, the "Internet Services")
to those commercial buildings set forth on Exhibit C where
FreeLinQ does not have an established wired infrastructure to
provide internet access but does have the option to wire such
buildings pursuant to the Trump Agreement or the Additional
Agreements (the "Off- Net Commercial Buildings" and together with
the Residential Buildings and the On-Net
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Commercial Buildings, the "Buildings"). During the term of this
Agreement, unless otherwise agreed to in writing by Worldwide,
FreeLinQ agrees not to hire, retain or otherwise engage any other
entity or individual to provide the Internet Services to or in
respect of any of the Buildings.
1.2. Additional Off-Net Buildings. In the event that Worldwide obtains
access to any building that is not provided for in the Trump
Agreement or the Additional Agreements (the "Off-Net Buildings"),
Worldwide hereby agrees to give FreeLinQ the right of first
refusal to provide the FreeLinQ Channel to such Off-Net Buildings.
FreeLinQ shall have fifteen (15) days to exercise such right of
first refusal and shall notify Worldwide in writing on or prior to
the last day of such fifteen day period whether or not the right
of first refusal shall be exercised. If such right of first
refusal is exercised, such Off-Net Building shall be deemed an
"On-Net Commercial Building" for purposes of this Agreement. In
the event the right of first refusal is not exercised, FreeLinQ
shall not restrict Worldwide's access to such Off-Net Building.
1.3. Support. Worldwide will provide the technical support set forth on
Exhibit A (the "Worldwide Residential Support Services") for the
Residential Internet Services and the technical support set forth
on Exhibit B (the "Worldwide Commercial Support Services" and
together with the Residential Support Services, the "Worldwide
Support Services") for the On-Net Commercial Internet Services and
the Off-Net Commercial Internet Services.
1.4. Worldwide Installation Services. Worldwide will provide the
installation services set forth on Exhibit D.
1.5. Internet Website Portal Page. FreeLinQ and Worldwide hereby agree
that the posting of any advertisements, including, but not limited
to, banner advertisements and hyperlinks to other websites, on any
internet website portal page created as part of the Internet
Services to be provided hereunder (the "Web Page") shall be
mutually agreed upon by FreeLinQ and Worldwide. All revenues
generated, if any, from the posting of such advertisements on the
Web Page shall be split equally between FreeLinQ and Worldwide,
provided that FreeLinQ and Worldwide share equally in the cost of
administering such advertisements.
2. SOLICITATION OF END-USERS; RESPONSIBILITIES OF FREELINQ AND
WORLDWIDE.
2.1. Solicitation of End-Users. FreeLinQ shall, and shall permit
Worldwide to, solicit all of the tenants of the Buildings (each an
"End-User") to subscribe to the Internet Services and provide the
Marketing Services (as defined herein) during the Initial Term (as
defined herein) and any Renewal Term (as defined herein) of
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this Agreement, and FreeLinQ shall include in each VOD service
questionnaire (the "VOD Questionnaire") furnished to each End-User
a page substantially in the form of Exhibit E hereto. FreeLinQ
shall deliver each such signed and completed page to Worldwide
promptly, but in any event within five (5) days, after receipt
thereof.
2.2. Marketing Responsibilities of FreeLinQ. In connection with
soliciting End-Users and providing the Marketing Services,
FreeLinQ shall:
(a) perform the sales and marketing services set forth on Exhibit
F provided, however, that Worldwide shall have the right, but
not the obligation, by written notice given to FreeLinQ, to
delete one or more of the marketing services from Exhibit F
and/or itself perform all or any portion of any such services
and provide such services directly to the End-Users (such
services listed on Exhibit F as the same may be modified in
accordance with the terms of this Agreement, being referenced
to as the "Marketing Services");
(b) pay for any and all costs, fees and expenses in connection
with the performance of its obligations hereunder, including,
but not limited to, those arising in connection with the
Marketing Services;
(c) conduct its business so as to maintain the goodwill of
Worldwide;
(d) use only promotional material approved by Worldwide in
connection with performing the Marketing Services;
(e) comply fully with all applicable federal, local and state
laws, regulations and ordinances; and
(f) with respect to each Residential Building and On-Net
Commercial Building, provide the installation services set
forth on Exhibit G.
2.3. Other Responsibilities of FreeLinQ. FreeLinQ shall provide
unrestricted access to the FreeLinQ headends to Worldwide.
FreeLinQ shall provide internet connectivity to each End-User in a
Residential Building using the FreeLinQ broadband network and the
customer premise equipment and network located in such Residential
Building.
2.4. Responsibilities of Worldwide. (a) Worldwide may enter into an
internet service provider agreement (each an "ISP Agreement") with
each residential End-User who subscribes to the Residential
Internet Services and may enter into a network service provider
agreement (each a "NSP Agreement") with each End-User that
subscribes to either the On-Net Commercial Internet Services or
the Off-Net Commercial Internet Services.
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(b) In the event that Worldwide includes any reference to or
information about FreeLinQ in connection with soliciting
End-Users and performing Marketing Services directly to
End-Users, Worldwide shall use only promotional material
approved by FreeLinQ.
3. LIMITS OF AUTHORITY
FreeLinQ shall not:
(a) hold itself out as Worldwide's agent or representative except
as provided herein, or make any representation or warranty
concerning Worldwide or the Internet Services to be provided
by Worldwide;
(b) enter into any agreement with any End-Users with respect to
the Internet Services or solicit the End-Users to enter into
any other agreement with respect to the Internet Services
other than the ISP Agreements and the NSP Agreements as
provided herein;
(c) waive, alter or change any provision of any ISP Agreement or
NSP Agreement;
(d) modify or extend the amount or time of payment of any charge
or fee arising under any ISP Agreement or NSP Agreement;
(e) incur any expense or obligation in the name of Worldwide; or
(f) use Worldwide's name or Marks (as defined herein) in
connection with its business other than in the manner
expressly provided for herein and consistent with proper
trademark practices.
4. TERM AND TERMINATION.
4.1. Term. This Agreement will commence on the Effective Date and
continue until the fifth anniversary thereof ("Initial Term").
Upon expiration of the Initial Term and each Renewal Term
thereafter, this Agreement will be automatically renewed for an
additional five (5) year term ("Renewal Term") unless terminated
by either party upon 180 days' written notice given prior to the
expiration of the Initial Term or any Renewal Term, as the case
may be.
4.2. Termination for Breach. Either party may terminate this Agreement
prior to the expiration of the Initial Term or any Renewal Term in
the event of a material breach of the terms or conditions of this
Agreement by the other party which breach is not cured within
thirty (30) days of written notice from the party not in breach.
In addition to these rights of termination, each party will have
the right, in the event of an uncured breach by the other party,
to avail itself of all remedies or causes of action, in law or
equity, for damages as a result of such breach.
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4.3. Effects of Termination. (a) Termination or expiration of this
Agreement for any reason shall not (i) release either party from
any liability or obligation which has already accrued as of the
effective date of such termination, including, but not limited to,
the obligation of Worldwide to pay any amounts due pursuant to
Article 7 hereof; provided, however, that such payment obligations
shall terminate upon the termination of the ISP Agreements and the
NSP Agreements that have been entered into as a result of the
Marketing Services and prior to termination hereof and (ii)
constitute a waiver or release of, or otherwise be deemed to
prejudice or adversely affect, any rights, remedies or claims,
whether for damages or otherwise, which a party may have
hereunder, at law, equity or otherwise.
(b) In the event this Agreement is terminated by Worldwide
pursuant to Sections 4.2 or 5.5(a) hereof, FreeLinQ shall pay
to Worldwide any and all costs and fees required to be paid
by Worldwide to bandwidth providers arising under any and all
agreements entered into with such bandwidth providers in
connection with the provision of the Internet Services
pursuant to this Agreement.
5. TITLE AND OWNERSHIP.
5.1. Disclosed Material. All technical, creative or business
information or material including, but not limited to, business or
marketing plans, analytical methods, computer programs, data
files, drawings, photographs, films, scripts, sketches, samples,
or financial or marketing data, whether oral, written or otherwise
furnished or disclosed under, or in contemplation of, this
Agreement ("Disclosed Material") shall remain the disclosing
party's property. All Disclosed Material shall be used only in
connection with the performance of the obligations arising under
this Agreement and shall not be otherwise used, copied, or
disclosed to any third party without the disclosing party's prior
written consent.
5.2. Return of Disclosed Material. Upon written request and upon
termination of this Agreement for any reason, all Disclosed
Material in tangible form shall be returned immediately to the
disclosing party and all Disclosed Material not capable of return
shall be destroyed and the receiving party shall certify to the
disclosing party that such Disclosed Material has been destroyed.
5.3. Marketing Materials. Each party acknowledges and agrees that,
except for Disclosed Material provided by either party (including
without limitation each party's proprietary methods, techniques,
processes, strategies and other know-how relating to interactive
advertising and promotions, regardless of the manner or form in
which the foregoing are disclosed to one party by the other
party), all documents, reports, creative designs and other
deliverables prepared by one party for the other party ("Marketing
Materials") pursuant to this Agreement shall be the property of
the creating party. While this Agreement is in effect, each party
shall have a personal, non-exclusive, royalty-free,
non-transferable license to use
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any Marketing Material in connection with the provision of the
Marketing Services.
5.4. Trademark License. (a) During the Term of this Agreement,
Worldwide grants FreeLinQ a nonexclusive, non-transferable license
to use, copy, display, reproduce and transmit its trademarks,
tradenames and logos (collectively, the "Worldwide Marks") in
connection with the Marketing Services solely in the manner set
forth herein. Within five (5) days of the termination of this
Agreement, FreeLinQ shall cease all display, advertising and use
of all of the Worldwide Marks, and shall not thereafter use,
advertise or display any of the Worldwide Marks except to the
extent expressly permitted in this Agreement. All use of the
Worldwide Marks shall inure to the benefit of Worldwide.
(b) During the Term of this Agreement, FreeLinQ grants Worldwide
a nonexclusive, non-transferable license to use, copy,
display, reproduce and transmit its trademarks, tradenames
and logos (collectively, the "FreeLinQ Marks" and together
with the Worldwide Marks, the "Marks") in connection with the
Marketing Services solely in the manner set forth herein.
Within five (5) days of the termination of this Agreement,
Worldwide shall cease all display, advertising and use of all
of the FreeLinQ Marks, and shall not thereafter use,
advertise or display any of the FreeLinQ Marks except to the
extent expressly permitted in this Agreement. All use of the
FreeLinQ Marks shall inure to the benefit of FreeLinQ.
5.5. Marketing Materials. (a) Prior to any use of any Mark or any
Marketing Material, each party will provide to the other party
copies of the Marketing Materials for such party's written
approval. Each party shall respond promptly by e-mail or by any of
the other means of notice set forth in Section 11.3 hereof, but in
no event later than ten (10) business days after receipt (failing
which response, the materials shall be deemed accepted by the
non-disclosing party). The release of any Marketing Materials
embodying a Mark without prior review and written approval (or
deemed acceptance, as provided herein) shall be a material breach
of this Agreement, and grounds for immediate termination by the
non-disclosing party, without the right to cure. This provision
applies to all Marketing Materials embodying a Mark, whether in
electronic or print format. The parties agree that acceptance of
Marketing Materials embodying a Mark under this paragraph shall be
continuing for all previously approved Marketing Materials which
are materially unchanged. The parties acknowledge that breach of
this provision will cause irreparable harm to the non-disclosing
party, and such party may seek injunctive relief without having to
prove damages to restrain any breach or threatened breach of this
provision, in addition to all other remedies which it may have, in
law or in equity.
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(b) To the extent FreeLinQ has the right to approve of marketing
materials, including press releases, which include
Worldwide's name or Marks and which are to be used by Trump
New Media in connection with the promotion or provision of
the Internet Services, such approval by FreeLinQ shall not be
granted to Trump New Media without the prior written consent
of Worldwide.
5.6. Use of Mark. The Worldwide Marks may be used only as a means of
identifying Worldwide as the source and provider of the Internet
Services, and the FreeLinQ Marks may be used only as a means of
identifying FreeLinQ as the source and provider of the VOD
services. The Marks may be used only in form expressly approved by
each party as provided in this Agreement, and under no
circumstances may they be altered in any way whether by change of
color, type, design, or otherwise. The presentation of the Marks
shall at all times be such that ownership of any particular Mark
is clear. All Marks shall have the (R) or (TM) or symbols where so
designated by each party. Each party shall have the unilateral
right to establish, monitor and enforce such quality standards and
additional terms and conditions concerning the use of its Marks as
it deems necessary to reasonably protect its Marks. Each party
hereby renounces ownership of and assigns to the other party any
goodwill which accrues as a result of either party's use of the
Marks.
5.7. Proprietary Rights in Marks. Title to and ownership of all Marks,
and all rights therein, including, without limitation,
intellectual property rights applicable thereto, are and shall
remain the exclusive property of the party that owns the Mark.
Neither party shall take any action to jeopardize, limit or
interfere in any manner with the aforesaid rights. Each party
shall have only those rights in or to the Marks expressly granted
to it pursuant to this Agreement.
6. CONFIDENTIALITY.
"Confidential Information" means all information disclosed by the
disclosing party ("Discloser") to the receiving party ("Recipient") (in writing,
orally or in any other form), including, without limitation, Disclosed Material,
source code, trade secrets, customer lists, development tools and processes,
computer printouts, computer programs, design drawings and manuals,
improvements, business plans, technical data, product ideas, personnel,
contracts and financial information, unless (i) the information is or becomes
publicly known through lawful means; (ii) the information was, and is documented
in writing to have been, rightfully in Recipient's possession or part of
Recipient's general knowledge prior to receipt of the Confidential Information;
(iii) the information is disclosed to Recipient without confidential or
proprietary restriction by a third party who rightfully possesses the
information (without confidential or proprietary restriction) and did not learn
of it, directly or indirectly, from Recipient, or (iv) the information is
independently developed by the Recipient without use of the Discloser's
Confidential Information. Recipient shall reproduce the other party's
Confidential Information only for purposes of this Agreement and only to the
extent necessary for such
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purpose and shall hold all Confidential Information in strict confidence and
shall not disclose any Confidential Information to any third party. Recipient
shall take all reasonable measures to protect the confidentiality and avoid the
unauthorized use, disclosure, publication, or dissemination of Confidential
Information. If either party should receive a subpoena, court order or other
legal process (each a "Legal Order") which would compel the disclosure of such
Confidential Information, that party shall promptly notify the other party of
such event so as to provide such party with a reasonable opportunity to obtain
an appropriate court order protecting such Confidential Information. Any
information required to be disclosed pursuant to any Legal Order shall no longer
be Confidential Information but only to the extent required to be disclosed in
the Legal Order and subject to the restrictions ordered by the court.
7. BILLING AND PAYMENT.
7.1. Collection of Fees. Worldwide shall be responsible for the billing
and collection of fees in connection with all of the ISP Agreements and the NSP
Agreements entered into with End-Users in Residential Buildings and On-Net
Commercial Buildings as a result of FreeLinQ Marketing Services.
7.2. Payment and Reports. Within forty-five (45) days after the end of
each month, Worldwide will pay FreeLinQ the amount as determined in accordance
with the schedule set forth on Exhibit H hereto but only to the extent amounts
are collected by Worldwide and not refunded.
7.3. Commissions for Off-Net Buildings. Worldwide and FreeLinQ agree
that Worldwide shall pay a commission to FreeLinQ for those Off-Net Commercial
Buildings to which Worldwide decides, in its sole discretion, to provide Off-Net
Internet Services. Such commission shall be mutually agreed upon by Worldwide
and FreeLinQ at the time Worldwide agrees to provide the Off-Net Internet
Services to such Off-Net Commercial Buildings.
7.4. End User Information. Worldwide shall provide to FreeLinQ, within
forty-five (45) days after the end of each month, a report for that month
showing the name and address of each End-User to whom Worldwide is providing
Internet Services.
7.5. Book and Records. (a) Worldwide agrees to maintain adequate books
and records relating to the provision of Internet Services to End-Users. Such
books and records shall be available at their place of keeping for inspection by
FreeLinQ or its representative, for the purpose of determining whether the
correct fees and/or commissions, if any, have been paid to FreeLinQ in
accordance with the terms of this Agreement and whether Worldwide has otherwise
complied with the terms of this Agreement. FreeLinQ shall have the right to
conduct such an audit, for the prior three month period only, upon thirty (30)
days advance notice once each quarter. Such audit is to occur during Worldwide's
normal business hours, at a time and location designed to minimize disruption to
Worldwide's business. Information contained in Worldwide's books and records
shall constitute Confidential Information as defined in Section 6.
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(b) If the results of any such audit as provided for in
subsection (a) of this Section 7.5 establish that Worldwide
has underpaid FreeLinQ by an amount greater than ten percent
(10%) in any quarter, then Worldwide shall pay promptly to
FreeLinQ the amount of the shortfall plus an amount computed
at the rate of eighteen percent (18%) per annum, compounded
monthly, on the shortfall (the "Additional Amount") for the
period commencing on the date such payment was due and owing
and terminating on the date such shortfall and Additional
Amount is paid in full.
(c) If the results of any such audit as provided for in
subsection (a) of this Section 7.5 establish that Worldwide
has overpaid FreeLinQ by any amount, then FreeLinQ shall pay
promptly, but in any event within fifteen (15) days after the
discovery of such overpayment, the total amount overpaid by
Worldwide or, at the option of Worldwide, such amount shall
be credited to amounts payable by Worldwide under the next
month's invoice.
8. REPRESENTATIONS AND WARRANTIES.
8.1. Worldwide's Representations.
(a) Worldwide is a corporation duly organized, validly existing
and in good standing under the laws of the jurisdiction of
its incorporation and has all requisite corporate power and
authority to own, lease and operate its properties and to
carry on its business as now being conducted, is properly
qualified to do business in all jurisdictions where it
currently conducts business and to enter into this Agreement
and to perform its obligations hereunder.
(b) Worldwide has full corporate power and authority to enter
into and execute this Agreement and to carry out the
transactions contemplated hereby in accordance with its
terms. The execution, delivery and performance by Worldwide
of this Agreement and the consummation by Worldwide of the
transactions contemplated hereby have been duly and validly
authorized by all necessary corporate action on the part of
Worldwide, and no other corporate proceedings on the part of
Worldwide are necessary to authorize this Agreement or to
consummate the transactions contemplated hereby. This
Agreement has been duly and validly executed and delivered by
Worldwide and constitutes a legal, valid and binding
obligation of Worldwide, enforceable against it in accordance
with its terms, except that (i) such enforceability may be
subject to bankruptcy, insolvency, fraudulent conveyance,
reorganization or other similar laws now or hereafter in
effect affecting or relating to enforcement of creditors'
rights generally and (ii) general equitable principles.
Neither
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the execution, delivery and performance by Worldwide of this
Agreement nor the consummation by Worldwide of the
transactions contemplated hereby will, with or without the
giving of notice or the passage of time, or both, (i) violate
any provision of law, rule, regulation, order, judgment,
writ, injunction or decree applicable to Worldwide or any of
its properties or assets, (ii) conflict with, result in a
breach of, terminate, modify, or cancel, or require any
notice under any note, bond, mortgage, indenture, license,
contract or agreement to which it is a party or by which
Worldwide or any of its assets is bound or result in the
imposition of any lien upon any of the assets of Worldwide;
or (iii) conflict with, violate or result in a breach of any
of the terms, conditions or provisions of the Certificate of
Incorporation or By-Laws of Worldwide.
(c) Worldwide, to the best of its knowledge, warrants that the
Marks and all Disclosed Material provided by Worldwide to
FreeLinQ under this Agreement do not infringe upon the
intellectual property rights or any other rights of any third
party, or defame or invade the privacy of any third party.
(d) Worldwide warrants that the Worldwide Support Services shall
be performed by qualified personnel who will perform the
tasks thereunder consistent with good professional practice
and generally accepted standards in the internet industry.
8.2. FreeLinQ's Representations.
(a) FreeLinQ is a corporation duly organized, validly existing
and in good standing under the laws of the jurisdiction of
its incorporation and has all requisite corporate power and
authority to own, lease and operate its properties and to
carry on its business as now being conducted, is properly
qualified to do business in all jurisdictions where it
currently conducts business and to enter into this Agreement
and to perform its obligations hereunder.
(b) FreeLinQ has full corporate power and authority to enter into
and execute this Agreement and to carry out the transactions
contemplated hereby in accordance with its terms. The
execution, delivery and performance by FreeLinQ of this
Agreement and the consummation by FreeLinQ of the
transactions contemplated hereby have been duly and validly
authorized by all necessary corporate action on the part of
FreeLinQ, and no other corporate proceedings on the part of
FreeLinQ are necessary to authorize this Agreement or to
consummate the transactions contemplated hereby. This
Agreement has been duly and validly executed and delivered by
FreeLinQ and constitutes a legal, valid and binding
obligation of FreeLinQ, enforceable against it in accordance
with its terms, except that
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(i) such enforceability may be subject to bankruptcy,
insolvency, fraudulent conveyance, reorganization or other
similar laws now or hereafter in effect affecting or relating
to enforcement of creditors' rights generally and (ii)
general equitable principles. Neither the execution, delivery
and performance by FreeLinQ of this Agreement nor the
consummation by FreeLinQ of the transactions contemplated
hereby will, with or without the giving of notice or the
passage of time, or both, (i) violate any provision of law,
rule, regulation, order, judgment, writ, injunction or decree
applicable to FreeLinQ or any of its properties or assets,
(ii) conflict with, result in a breach of, terminate, modify,
or cancel, or require any notice under any note, bond,
mortgage, indenture, license, contract or agreement to which
it is a party or by which FreeLinQ or any of its assets is
bound or result in the imposition of any lien upon any of the
assets of FreeLinQ; or (iii) conflict with, violate or result
in a breach of any of the terms, conditions or provisions of
the Certificate of Incorporation or By-Laws of FreeLinQ.
(c) FreeLinQ represents that it shall perform its obligations
under this Agreement in a good and workmanlike fashion and in
accordance with the highest professional standards of the
industry.
(d) FreeLinQ represents that all Marketing Materials created,
produced and/or developed by FreeLinQ shall be works of
original authorship and will not infringe the rights of any
third party.
8.3. THIS ARTICLE 8 SETS FORTH ALL OF THE REPRESENTATIONS AND
WARRANTIES OF A PARTY TO THE OTHER PARTY. EACH PARTY HEREBY
DISCLAIMS ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING,
WITHOUT LIMITATION, THE WARRANTIES OF MERCHANTABILITY AND FITNESS
FOR A PARTICULAR PURPOSE. WORLDWIDE DOES NOT MAKE ANY
REPRESENTATIONS AND WARRANTIES REGARDING ANY CONTENT, WEBSITE OR
OTHER MATERIALS ACCESSIBLE VIA THE INTERNET SERVICES. THE PARTIES
ACKNOWLEDGE THAT, BECAUSE OF THE NATURE OF THE INTERNET AND THE
INTERNET RELATED TECHNOLOGY, THERE MAY BE DISRUPTIONS TO INTERNET
SERVICES BEYOND THE CONTROL OF WORLDWIDE AND THAT WORLDWIDE SHALL
BEAR NO RESPONSIBILITY FOR SUCH DISRUPTIONS.
9. INDEMNIFICATION.
9.1. Worldwide Indemnification. Worldwide shall indemnify, hold
harmless and defend FreeLinQ, its affiliates, officers, directors,
employees and agents from and against any claim, suit or
proceeding and any damages or liability therefrom or settlement
thereof (including reasonable attorneys' fees and disbursements)
to the
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extent (i) based on a claim that the Worldwide Marks or any
Disclosed Material provided by Worldwide infringe the patent,
copyright, trademark, trade secret, publicity, privacy or other
rights of any person, defame any person, or violate any applicable
law or regulation or (ii) resulting from any breach of this
Agreement by Worldwide.
9.2. FreeLinQ Indemnification. FreeLinQ shall indemnify, hold harmless
and defend Worldwide, its affiliates, officers, directors,
employees and agents from and against any third party claim, suit
or proceeding and any damages or liability therefrom or settlement
thereof (including reasonable attorneys' fees) to the extent (i)
based on a claim that the FreeLinQ Marks or any Disclosed Material
provided by FreeLinQ infringe the patent, copyright, trademark,
trade secret, publicity, privacy or other rights of any person,
defame any person, or violate any applicable law or regulation or
(ii) resulting from any breach of this Agreement by FreeLinQ.
9.3. Exceptions. The indemnities set forth in Sections 9.1 and 9.2
shall not apply if (i) the indemnified party fails to give the
indemnifying party prompt notice of any claim it receives and such
failure materially prejudices the indemnifying party; or (ii) the
indemnifying party is not given the opportunity to control the
defense and settlement of any claim.
9.4. Settlement. The indemnified party shall not, without the prior
written consent of the indemnifying party, enter into any
settlement the result of which would materially limit or modify
the rights of the indemnifying party under this Agreement.
10. LIMIT ON LIABILITY.
NEITHER PARTY SHALL HAVE ANY LIABILITY FOR LOSS OF PROFITS OR SPECIAL,
INCIDENTAL, CONSEQUENTIAL, PUNITIVE OR EXEMPLARY DAMAGES, EVEN IF EITHER PARTY
HAS WARNED OR BEEN WARNED OF THE POSSIBILITY OF SUCH LOSS OR DAMAGE.
NOTWITHSTANDING ANY OTHER PROVISIONS OF THIS AGREEMENT, EITHER PARTY'S LIABILITY
UNDER THIS AGREEMENT SHALL NOT EXCEED THE TOTAL AMOUNT OF FEES AND COMMISSIONS
ACTUALLY PAID BY WORLDWIDE TO FREELINQ PURSUANT TO THIS AGREEMENT.
11. GENERAL PROVISIONS.
11.1. Assignment. This Agreement may not be assigned by either party to
any other person or entity without the express written consent of
the other party; provided, however, that Worldwide may assign this
Agreement to any other person or entity upon 30 days' prior to
written notice to FreeLinQ and with the express written consent of
FreeLinQ, which consent shall not be unreasonably withheld,
pursuant to the sale of all or substantially all of the assets of
Worldwide or pursuant to a merger of Worldwide with another
entity.
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11.2. Invalidity; Enforceability; Severability. If any provision or
provisions of this Agreement shall be held to be invalid, illegal
or unenforceable, the validity, legality and enforceability of the
remaining provisions shall not in any way be affected or limited
thereby.
11.3. Notices. Any notices or other communications required or
permitted hereunder shall be given in writing and shall be
delivered by hand or sent by telecopy, by certified or registered
mail, postage prepaid and return receipt requested, or by
nationally recognized overnight courier service and shall be
deemed given when so delivered by hand or telecopied (but only if
receipt thereof is acknowledged by return telecopy or if a
conforming copy is delivered or sent within one business day
thereafter by any other means of delivery permitted by this
Section 11.3), or if mailed, on the date of actual receipt and in
the case of overnight courier service, the business day following
dispatch, addressed as set forth on Exhibit I or to such other
address as shall be furnished in writing by either party; provided
that any notice or communication changing either of the addresses
set forth on Exhibit I shall be effective and deemed given only
upon its receipt.
11.4. Governing Law. This Agreement shall be governed by and construed
in accordance with the laws of the State of New York applicable to
contracts made and to be performed entirely within such State.
11.5. Dispute Resolution. (a) Any disagreement, dispute, controversy or
claim arising out of or relating to this Agreement or the
transactions contemplated hereby, including, without limitation,
the interpretation hereof and any breach, termination or
invalidity hereof, shall be settled exclusively and finally
through arbitration (irrespective of the magnitude thereof, the
amount in controversy or whether such matter would otherwise be
considered justiciable or ripe by a court or arbitral tribunal).
(b) The arbitration shall be conducted in accordance with the
commercial arbitration rules of the American Arbitration
Association (the "Arbitration Rules"), except as those rules
conflict with the provisions of this Section 11.5, in which
event the provisions of this Section 11.5 shall control.
(c) The arbitral tribunal shall consist of three arbitrators
chosen in accordance with the Arbitration Rules. The
arbitration shall be conducted in New York County. Any
submission of a matter for arbitration shall include joint
written instructions of Worldwide and FreeLinQ requiring the
arbitral tribunal to render a decision resolving the matters
submitted within 60 days following the submission thereof.
Arbitration proceedings shall be conducted in confidence.
(d) Any decision or award of the arbitral tribunal shall be final
and binding upon the parties to the arbitration proceeding.
Worldwide and FreeLinQ
<PAGE>
agree that the arbitral award may be enforced against them or
their assets wherever they may be found and that a judgment
upon the arbitral award may be entered in any court having
jurisdiction thereof.
(e) All out-of-pocket costs and expenses incurred by any party in
connection with the resolution of any disagreement, dispute,
controversy or claim pursuant to this Section 11.5,
including, but not limited to, reasonable attorney's fees and
disbursements, shall be borne by the party incurring the
same; provided, however, that the arbitral tribunal shall
have the discretion to declare either party as the
"prevailing party" with respect to one or more of the issues
that were the subject of the arbitration and to require the
other party to reimburse such "prevailing party" for some or
all of its costs and expenses incurred in connection with
such proceeding.
(f) The costs of the arbitral tribunal shall be divided evenly
between the parties, unless there is a "prevailing party, "
in which case the arbitral tribunal may allocate more or all
of such costs to the party thereto that is not the
"prevailing party."
(g) This Section 11.5 shall not prohibit or limit in any way any
party from seeking or obtaining preliminary or interim
injunctive or other equitable relief from a court for a
breach or alleged breach of any of the covenants and
agreements of another party contained in this Agreement.
11.6. Relationship of the Parties. Each party is acting as an
independent contractor and not as an agent, partner, or joint
venturer with the other party for any purpose. Except as expressly
provided in this Agreement, neither party shall have the right,
power, or authority to act or to create any obligation, express or
implied, on behalf of the other.
11.7. Survival of Certain Provisions. Notwithstanding the termination
or expiration of this Agreement, the following provisions shall
survive, along with either party's obligations to pay any payments
or fees accrued prior to termination or expiration: 4.3, Articles
5, 6, 8, 9, 10 and 11.
11.8. Headings. The titles and headings of the various sections and
paragraphs in this Agreement are intended solely for convenience
of reference and are not intended for any other purpose
whatsoever, or to explain, modify or place any construction upon
or on any of the provisions of this Agreement.
11.9. All Amendments in Writing. No provisions in any other business
forms, including the VOD Questionnaires, the ISP Agreements and
the NSP Agreements, employed by either party will supersede the
terms and conditions of this Agreement, and no supplement,
modification, or amendment of this Agreement shall be binding,
unless executed in writing by a duly authorized representative of
each party to this Agreement.
<PAGE>
11.10. Waiver. It is understood and agreed that no failure or delay by
either party in exercising any right, power or privilege hereunder
shall operate as a waiver thereof, nor shall any single or partial
exercise thereof preclude any other or further exercise thereof or
the exercise of any right, power or privilege hereunder.
11.11. Entire Agreement. This Agreement, together with the Exhibits
annexed hereto, constitutes the entire agreement of the parties
hereto with respect to the subject matter hereof and supersedes
all prior and contemporaneous agreements, arrangements and
understandings, either oral or written, relating thereto. No
representations or statements of any kind made by either party,
which are not expressly stated herein, shall be binding on such
party.
11.12. Counterparts. This Agreement may be executed in counterparts,
each of which shall be deemed an original and both of which
together shall constitute one and the same instrument.
11.13. Further Assurances. The parties agree to promptly execute and
deliver to the requesting party, upon reasonable request, any
documents necessary to effectuate the purposes of this Agreement.
[SIGNATURE PAGE FOLLOWS]
<PAGE>
IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date set forth above.
WORLDWIDE WIRELESS SYSTEMS INC. FREELINQ COMMUNICATIONS CORPORATION
By: /s/David E. Padilla By: /s/ Maury DiDomenico
-------------------- -----------------------
Name: David E. Padilla Name: Dr. Maury DiDomenico
Title: President & CEO Title: President and CEO
<PAGE>
Exhibit A
---------
RESIDENTIAL INTERNET SERVICES, RESIDENTIAL BUILDINGS
AND WORLDWIDE RESIDENTIAL SUPPORT SERVICES
Worldwide shall provide the following Residential Internet Services to
the Residential Buildings:
Internet access provided to the FreeLinQ switch will include:
(a) full network management and support of the internet access
provided to the FreeLinQ headend switch;
(b) an appropriate router and device to manage internet bandwidth so
as to not reasonably interfere with the VOD services;
(c) the appropriate DNS Service;
(d) up to 10Mb web space per ip address;
(e) news services;
(f) one (1) free e-mail account per End-User;
(g) a Caching server to support VOD service initiated Internet Ad
links; and
(h) optional additional e-mail accounts for each user at a fee
specified by Worldwide.
Residential Buildings shall mean all residential buildings which FreeLinQ has
the right to provide VOD or internet services to from time to time pursuant to
the Trump Agreement or the Additional Agreements during the Initial Term and any
Renewal Term. FreeLinQ shall provide to Worldwide a list of the Residential
Buildings as of the date hereof and notify Worldwide in writing promptly of any
new Residential Buildings to be added to such list.
Worldwide shall provide the following Residential Support Services to the
Residential Buildings:
Support of the Residential Internet Services to the FreeLinQ switch with second
level support to FreeLinQ technical personnel for the support required beyond
the switch to each End- User in a Residential Building for either STB (Set Top
Box) or PC connections to the internet.
Support shall be provided on a 12 hour 7 day basis.
<PAGE>
Exhibit B
---------
ON-NET COMMERCIAL INTERNET SERVICES, ON-NET COMMERCIAL
BUILDINGS AND WORLDWIDE COMMERCIAL SUPPORT SERVICES
Worldwide shall provide the following On-Net Commercial Internet Services to the
On- Net Commercial Buildings:
Internet access to the FreeLinQ headends will include router, DNS Service and
fee based e-mail services as required by End-Users located in On-Net Commercial
Buildings.
On-Net Commercial Buildings shall mean those commercial buildings which FreeLinQ
has the right to provide On-Net Internet Services to from time to time during
the Initial Term and any Renewal Term. FreeLinQ shall provide to Worldwide a
list of the On-Net Commercial Buildings as of the date hereof and notify
Worldwide in writing promptly of any new On-Net Commercial Buildings to be added
to such list.
Worldwide shall provide the following Worldwide Commercial Support Services to
the On-Net Commercial Buildings and the Off-Net Commercial Buildings:
(a) Full network management and support of the internet access
provided to the FreeLinQ headends;
(b) Second level support to FreeLinQ technical personnel for problems
encountered on the FreeLinQ broadband network and/or the customer
premise network and equipment; and
(c) Full support of all Internet Services provided by Worldwide
including the DNS Services, e-mail services and other services as
purchased by the End-Users located in the On-Net Commercial
Buildings and the Off-Net Commercial Buildings.
<PAGE>
Exhibit C
---------
OFF-NET COMMERCIAL INTERNET SERVICES AND
OFF-NET COMMERCIAL BUILDINGS
Worldwide shall provide the following Off-Net Commercial Internet Services to
the Off- Net Commercial Buildings:
(a) Dedicated internet access from the Worldwide internet routers
directly to End-Users located in Off-Net Commercial Buildings;
and
(b) DNS Service and fee based e-mail services as required by
End-Users located in Off-Net Commercial Buildings.
Off-Net Commercial Buildings shall mean all commercial buildings and/or
End-Users to which FreeLinQ has access to provide Internet Services. FreeLinQ
shall provide to Worldwide a list of the Off-Net Commercial Buildings as of the
date hereof and notify Worldwide in writing promptly of any new Off-Net
Commercial Buildings to be added to such list.
<PAGE>
Exhibit D
---------
WORLDWIDE INSTALLATION SERVICES
Worldwide shall provide the following installation services:
Installation of internet access to the Worldwide internet routers located in the
points of presence ("POPs") provided by FreeLinQ, including all wiring, hardware
and resources necessary to install a working internet access POP.
<PAGE>
Exhibit E
---------
WORLDWIDE INTERNET ACCESS SUBSCRIPTION INFORMATION
Name:
----------------------------------------------------------
Address:
--------------------------------------------------------
--------------------------------------------------------
--------------------------------------------------------
--------------------------------------------------------
Phone Number:
---------------------------------------------------
E-Mail Address:
-------------------------------------------------
Billing Information:
Credit Card:
-------------------------------------------
Account Number:
----------------------------------------
Date of Expiration:
------------------------------------
General Authorization
The undersigned hereby grants authorization to FreeLinQ Communications
Corporation and its personnel to release to Worldwide Wireless Systems Inc.
("Worldwide") the information set forth above to be used in connection with the
provision of internet services by Worldwide.
Date: By:
----------------------- ----------------------------
Name:
--------------------------
<PAGE>
Exhibit F
---------
MARKETING SERVICES
FreeLinQ shall develop a marketing program (the "Marketing Program")
for the VOD and Internet Services which shall include, but not be limited to,
taking the following actions:
(a) FreeLinQ shall include Worldwide promotional sales material in all
FreeLinQ customer promotions and sales literature;
(b) In the event FreeLinQ enters into any advertising agreements to
promote its services (either on a barter or full-pay basis),
FreeLinQ shall use its best efforts to integrate Worldwide
promotional materials and information relating to Worldwide's
services therein;
(c) FreeLinQ shall run television promotions of Worldwide on the
FreeLinQ dedicated promotional channel and run of station
promotion as a standard operating procedure;
(d) FreeLinQ shall invite Worldwide to participate in any
presentations or discussions with vendors, advertisers and
alliance partners (whether as "packaged-buys" or as stand alone,
as necessary);
(e) FreeLinQ shall use its best efforts to include Worldwide in
interactive activities and to develop new projects and programs in
order to promote the combined services provided by Worldwide and
FreeLinQ; and
(f) In the cases where FreeLinQ telecommunications distribution is not
sufficient for its expansion, FreeLinQ shall use its best efforts
to expand its services through the Worldwide distribution system
and all Marketing Materials previously designed to promote and
sell both FreeLinQ and Worldwide services shall be applied
accordingly.
Worldwide shall participate in the development of the Marketing Program.
<PAGE>
Exhibit G
---------
FREELINQ INSTALLATION SERVICES
FreeLinQ shall provide the following installation services to
Residential Buildings and On-Net Commercial Buildings:
(a) high speed connectivity to the buildings from the Headends;
(b) switching capability at the building end;
(c) DSL or other highspeed connectivity from the building switch to
the user premises;
(d) physical connection of FreeLinQ system to the user PC or Network;
and
(e) computer IP configurations and troubleshooting
<PAGE>
Exhibit H
---------
PAYMENT SCHEDULE
ON-NET Residential Up to: 2501 to: 5001 To: 7501 to: 10001 *
Subscribers -------------------------------------------------------------------------------------
2500 5000 7500 10000 15000 20000 30000 40000 60000
-------------------------------------------------------------------------------------
(Month to Month Incremental revenues only; shown below)
* Monthly Rev. @$29.95 74,875 74,875 74,875 74,875 149,750 149,750 299,500 299,500 299,500
Rev. Split % FLQ/WWSI 30/70 35/65 40/60 45/55 50/50 50/50 50/50 50/50 50/50
---------------------------------------------------------------------------------------------------------------------
Monthly FreeLinQ Revenue 22,463 26,206 29,950 33,694 74,875 74,875 149,750 149,750 149,750
Monthly WWSI Revenue 52,413 46,869 44,925 41,181 74,875 74,875 149,750 149,750 149,750
---------------------------------------------------------------------------------------------------------------------
* Note: The first 10,000 Subscribers will remain at the Rev. Split indicated,
for the life of the program.
Assumptions:
Monthly Internet Charge $29.95
Trump Towers to have free Internet service through 12/98
Subscribers to the VOD service without Internet service will have access to the
Internet for Advertising sites only.
WWSI Costs: Bandwidth
Head End Internet Equipment
Support, Customer Care and Billing, Network Management,
Emall, Caching & DNS servers etc.
FLQ Costs: CPE Equipment (Customer Premise Equipment), i.e.. Set Top
Box, modems etc.. Installation Resources (All Install
Revenue goes to FreeLinQ)
<PAGE>
Exhibit I
---------
NOTICES
If notice to Worldwide:
Worldwide Wireless Systems Inc.
Route 5
Ascutney, Vt.
Attn: David E. Padilla, President & CEO
Phone: 802-674-2206
Fax:
E-mail: xjpadilla@worldnet.att.com
With a copy to:
Morrison & Foerster LLP
1290 Avenue of the Americas
New York, NY 10104
Attn: Mark L. Mandel, Esq.
Phone: (212) 468-8000
Fax: (212) 468-7900
E-mail: mmandel@mofo.com
If notice to FreeLinQ:
Dr. Maury DiDomenico
721 Fifth Avenue, 29th Floor
New York, NY 10022
Phone: (212) 752-6549
Fax: (212) 752-6546
E-mail: mauryd@gti.net
With a copy to:
Martin Firestone, Esq.
E & M Firestone Associates Incorporated
2045 La Alley Lane
DeLand, Florida 32720
Phone: (904) 740-0031
Fax: (904) 740-1503
<PAGE>
IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date set forth above.
WORLDWIDE WIRELESS SYSTEMS INC. FREELINQ COMMUNICATIONS CORPORATION
By: /s/David E. Padilla By: /s/ Maury DiDomenico
-------------------- -----------------------
Name: David E. Padilla Name: Dr. Maury DiDomenico
Title: President & CEO Title: President and CEO
<PAGE>
IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date set forth above.
WORLDWIDE WIRELESS SYSTEMS INC. FREELINQ COMMUNICATIONS CORPORATION
By: /s/David E. Padilla By: /s/ Maury DiDomenico
-------------------- -----------------------
Name: David E. Padilla Name: Dr. Maury DiDomenico
Title: President & CEO Title: President and CEO