Leased Line / Resale Agreement - OEM Networks Inc. and Worldwide Wireless Systems Inc.
LOGO
Leased Line / Resale Agreement
Company Information
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Full Legal Company Name Telephone Fax
Worldwide Wireless Systems, Inc. (802) 674-2206 (802) 674-2751
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Primary Address City State Zip
P.O. Box 470, Route 5 South Ascutney, VT 05030
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Primary Contact Name Telephone Pager e-Mail
Scott A. Wendel (802) 674-2206 (802) 290-5135 scott@vermontel.com
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Emergency Contact Telephone Pager e-Mail
Michael Tedesco (802) 899-1301 (802) 290-5138 miketedesco@ibm.net
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NOC Location (if different from above) City State Zip Suite/Floor
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Resale Circuits
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Pricing (Internet only. Local loop charges additional):
56k Frame relay - $80/month $300 setup
384k Frame Relay - $290/month $400 setup
T1 Frame Relay - $725/month $800 setup
56k Point to point - $120/month $400 setup
384k Point to point - $290/month $500 setup
T1 point to point - $500/month $800 setup
All of the above include Primary DNS for 1 domain, Mail relay and news
read/write for corporate accounts.
Attach Schedule 'D' and amend as circuits ordered.
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This Agreement authorizes OEM Networks, Inc. (OEM) to act as agent for the above
named (Customer) including but not limited to, ordering local
telecommunications, OEM internet services, WAN services, adding to, terminating,
decreasing, removing or rearranging such service or facilities on Customer's
behalf. Unless otherwise specified, charges for local service and other service
or facilities ordered by OEM on behalf of Customer may be billed directly to
Customer by the serving local exchange owner or other service provider.
(Separate local sales contracts may be required) Service is provided pursuant to
Terms & Conditions On attached Pages. Order is not valid, unless accompanied by
this signed page, an initialed copy of Terms & Conditions, a credit application
and up to a 2 month deposit.
Worldwide Wireless Systems, Inc. Scott A. Wendel
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Company Name Name of Person Signing
/s/ Scott A. Wendel July 22, 1998 President/CEO
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Signature Date Title
OEM Networks, Inc. - 1 International Place, 14th Floor - Boston, MA 02110
817.204.0200 Voice - 617.204.0210 Fax - http://www.oem.net/ -
e-Mail: sales@oem.net
Page 1 of 4
<PAGE>
YEARLY RESALE SERVICE AGREEMENT - TERMS OF SERVICE
1. ACCESS. OEM.NET shall provide the basic routing and network management
required to keep an active link which will be of a quality usual and
customary in the industry for similarly situated companies. While OEM.NET
cannot guarantee continuous service, OEM.NET will repair disruption in
services to the extent reasonably possible consistent with its obligations to
other customers. OEM.NET shall also provide news feed and/or mail services if
ordered at current pricing available at http://www.oem.net.
2. PRICING. Please refer to Schedule A attached hereto and incorporated
herewith.
3. TERMS AND CONDITIONS. Customer agrees to comply with OEM.NET's Network Policy
outlined in Schedule B attached hereto and incorporated herewith. Customer
further agrees to require its end users to comply with terms and conditions
in substance identical to those in sections One, Two, Three, Four, Five, Six
and Seven of Schedule B.
4. TERM. This is a one year agreement from the date first written above, and is
automatically renewable for an additional one year term provided that neither
party has provided written notice of intent not to renew to the other party
via certified mail, return receipt requested. Such notice must be provided
not less than thirty (30) days prior to the expiration of the current term,
and notice of such must be sent via or overnight courier or certified mail,
return receipt requested.
5. TERMINATION. Except where modified by Schedules A, B, or attached C, this
contract may be terminated by either party in the event that there has been a
material breach of the contract. Prior to such termination, the party wishing
to terminate shall give the other party written notice (E-Mail transmission
of such notice shall be considered written notice) of intent to terminate
together with a thorough description of the problems which constitute the
breach. The other party shall have fifteen (15) days in which to correct the
breach. If the problem is not corrected, the party intending to terminate may
do so. In the event that Customer is in violation of Section 2 of the OEM.NET
Network Policy, or has permitted such violation and does not act immediately
to correct such violation when it becomes aware of such violation, OEM.NET
shall have the right to terminate this contract without penalty with five (5)
days written notice (E-Mail transmission of such notice shall be considered
written notice). If there are any amounts due and owing by Customer remain
unpaid for more than sixty (60) days, OEM.NET may terminate this agreement
immediately without penalty upon written notice (E-Mail transmission of such
notice shall be considered written notice).
6. DISCLAIMER OF WARRANTY. CUSTOMER EXPRESSLY AGREES THAT USE OF THE OEM.NET
SERVICES IS AT CUSTOMER'S SOLE RISK. NEITHER OEM.NET, ITS EMPLOYEES,
AFFILIATES, AGENTS, THIRD-PARTY INFORMATION PROVIDERS, MERCHANTS, LICENSORS
OR THE LIKE WARRANT THAT THE OEM.NET SERVICES WILL BE UNINTERRUPTED OR ERROR
FREE; NOR DO THEY MAKE ANY WARRANTY AS TO THE RESULTS THAT MAY BE OBTAINED
FROM THE USE OF THE OEM.NET SERVICES OR AS TO THE ACCURACY, RELIABILITY OR
CONTENT OF ANY INFORMATION OR SERVICE PROVIDED THROUGH THE OEM.NET SERVICES.
THE OEM.NET SERVICES ARE PROVIDED ON AN "AS IS," "AS AVAILABLE" BASIS WITHOUT
WARRANTIES OF ANY KIND, EITHER EXPRESSED OR IMPLIED, INCLUDING, BUT NOT
LIMITED TO, WARRANTIES OF TITLE OR IMPLIED WARRANTIES OF MERCHANTABILITY OR
FITNESS FOR A PARTICULAR PURPOSE, OTHER THAN THOSE WARRANTIES THAT ARE
IMPLIED BY AND INCAPABLE OF EXCLUSION, RESTRICTION OR MODIFICATION UNDER THE
LAWS APPLICABLE TO THIS AGREEMENT. NO ORAL ADVICE OR WRITTEN INFORMATION
GIVEN BY OEM.NET, ITS EMPLOYEES, AGENTS, THIRD-PARTY INFORMATION PROVIDERS,
MERCHANTS, LICENSORS OR THE LIKE SHALL CREATE A WARRANTY, NOR SHALL CUSTOMER
RELY ON ANY SUCH INFORMATION OR ADVICE.
LIMITATION OF LIABILITY, UNDER NO CIRCUMSTANCES, INCLUDING NEGLIGENCE, SHALL
OEM.NET OR ANYONE ELSE INVOLVED IN CREATING, PRODUCING OR DISTRIBUTING THE
OEM.NET SERVICES BE LIABLE FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL OR
CONSEQUENTIAL DAMAGES THAT RESULT FROM THE USE OF OR INABILITY TO USE THE
OEM.NET SERVICES, INCLUDING, BUT NOT LIMITED TO, RELIANCE BY A CUSTOMER ON
ANY INFORMATION OBTAINED ON THE OEM.NET SERVICES; OR THAT RESULT FROM ANY
MISTAKES, OMISSIONS, INTERRUPTIONS, DELETION OF FILES OR E-MAIL, ERRORS,
DEFECTS, VIRUSES, DELAYS IN OPERATION, OR TRANSMISSION, OR ANY FAILURE OF
PERFORMANCE, WHETHER OR NOT LIMITED TO ACTS OF GOD, COMMUNICATIONS FAILURE,
THEFT, DESTRUCTION OR UNAUTHORIZED ACCESS TO OEM.NET'S RECORDS, PROGRAMS OR
SERVICES, CUSTOMER HEREBY ACKNOWLEDGES THAT THIS PARAGRAPH SHALL APPLY TO ALL
CONTENT, MERCHANDISE OR SERVICES AVAILABLE THROUGH THE OEM.NET SERVICES.
BECAUSE SOME STATES DO NOT ALLOW THE EXCLUSION OF OR LIMITATION OF LIABILITY
FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES, IN SUCH STATES OEM.NET'S LIABILITY
IS LIMITED TO THE GREATEST EXTENT PERMITTED BY LAW.
7. Notwithstanding the foregoing, in no event shall the total liability of
OEM.NET or its employees, affiliates, agents, third-party Information
Providers, merchants or licensors, for all damages, losses and causes of
action whether on contract, tort, including negligence, or otherwise, either
jointly or severally, exceed the aggregate amount paid by Customer to OEM.NET
in the twelve (12) months prior to the claimed injury or damage. The
foregoing provisions of this Section are for the benefit of OEM.NET, its
employees, directors, affiliates, agents, Information Providers, merchants,
and licensors, and each shall have the right to assert and enforce these
provisions directly on their own behalf.
OEM Networks, Inc. Terms of Service
Page 2 of 4
<PAGE>
8. INDEMNIFICATION. Upon request of OEM.NET, Customer agrees to defend,
indemnify and hold harmless OEM.NET and its officers, directors, employees,
agents, third-party Information Providers, merchants and licensees, from any
claims and expenses, including, but not limited to, reasonable attorneys
fees, related to any violation of the OEM.NET Network Policy by Customer (or
by Customer's end users) or in connection with the placement or
transmission by or through Customer (or by Customer's end users) of any
Content on the OEM.NET services and the services of its third-party
Information Providers and Customers.
9. SEVERABILITY. In the event that any portion of this Agreement is held to be
unenforceable, the invalid or unenforceable portion shall be construed in
accordance with applicable law as nearly as possible to reflect the
original intentions of the parties, and the remainder of the Agreement shall
remain in full force and effect. The paragraph headings herein are provided
only for reference and shall have no effect on the construction or
interpretation of the Agreement.
10. NO IMPLIED WAIVER/MODIFICATION. The failure to insist upon or enforce strict
performance by the other party of any provision of the Agreement shall not
be construed as a waiver of any provision or right. Neither the course of
conduct between parties nor trade practice shall act to modify any
provision of the Agreement.
11. NO AGENCY. No agency, partnership, joint venture or employment is created as
a result of this agreement. Neither party is authorized to bind the other in
any respect.
12. ASSIGNABILITY. OEM.NET reserves the right to assign this Agreement upon
thirty days written notice to the Customer. The Customer shall not have the
right to assign this Agreement except by written consent of OEM.NET.
13. CONFIDENTIALITY. OEM.NET and Customer agree that any and all knowledge
gained of either party's systems, services, marketing and practices and the
like shall remain confidential. Such knowledge shall not be used by either
party for any purpose whether personal, business or otherwise and shall not
be given, sold or shared with any other individual or entity.
14. EXCUSED PERFORMANCE. Neither party shall be liable to the other under this
Agreement for any failure in performance that is due to causes beyond its
reasonable control, including, but not limited to, acts of nature,
governmental actions, fires, civil disturbances, interruption of power or
transportation problems.
15. APPLICABLE LAW. This Agreement shall be governed by and construed in
accordance with the laws of the Commonwealth of Massachusetts. Each party
irrevocably consents to the exclusive jurisdiction of the courts of the
Commonwealth of Massachusetts and the federal courts situated in the
Commonwealth of Massachusetts in connection with any action arising under
the Terms of Service Agreement or relating to the OEM.NET services. Any
cause of action of Customer or its authorized user(s) with respect to the
OEM.NET services must be commenced within one (1) year after the claim or
cause of action arose or said cause of action shall be barred.
<PAGE>
SCHEDULE A
OEM.NET SERVICES FEES & CHARGES
1. All charges are listed on page #1 of this Agreement, under "Services
Ordered"
2. Telco charges, if applicable or indicated, are estimated using tariff
database information. Actual charges may vary. Any taxes, state or federal
or FCC/DPU surcharges will be passed through to the customer. OEM makes no
warranty or guarantee of telco pricing accuracy.
3. OEM may require customer to pay a two month deposit with bank certified
funds prior to the establishment of service. Once the customer has
established a timely payment history, OEM will issue a credit against future
service for the amount of the deposit.
4. Interruption of Service Credit - For any interruption of service that is not
due to negligence or non-compliance with this agreement on the part of the
customer or the operation or the malfunction of facilities, power, or
equipment provided by the customer, customer will receive a credit for the
period during which service was interrupted. An interruplton begins when the
customer reports a service, facility, or circuit to be interrupted and
releases it for testing and repair. An interruption ends when the service,
facility, or circuit is operating properly. Credit allowances are
calculated on the basis of a 30-day month; and the credit shall be pro-rata
allowance against the service charge, based on the duration of the
interruption as follows: First 30 minutes - none, 30 minutes to 3 hours -
1/10 day, each additional 3 hour period (or fraction thereof) 1/5 day.
Two or more interruptions of 15 minutes during anyone 24 hour period shall
be considered a single interruption. No more than one full day's credit will
be allowed for any period of 24 hours. For any interruption of service which
is directly attributable to OEM equipment or engineering failures and not
originated by failures not directly attributable to OEM, including but not
limited to: the customer or facilities, power or equipment provided by the
customer, OEM's upstream providers, interruptions of service experienced due
to an uphill outage, or acts of God customer will receive a credit.
SCHEDULE B
OEM.NET NETWORK POLICY FOR LEASED LINE AND IP RESALE ACCOUNTS
1. OEM.NET exercises no control whatsoever over the content of the information
passing through it's network. OEM.NET makes no warranties of any kind,
whether expressed or implied, for the service it is providing. OEM.NET also
disclaims any warranty of merchantability or fitness for a particular
purpose. OEM.NET will not be responsible for any damage you suffer. This
includes loss of data resulting from delays, non-deliveries, mis-deliveries,
or service interruptions caused by it's own negligence or your errors or
omissions. Use of any information obtained by OEM.NET's network is at your
own risk. OEM.NET specifically denies any responsibility for the accuracy or
quality of information obtained through it's services.
OEM Networks, Inc. Terms of Service
Page 3 of 4
<PAGE>
2. OEM.NET's network may only be used for lawful purposes. Transmission of any
material in violation of any U.S., State or foreign laws or regulations is
prohibited. This includes, but is not limited to: copyright material,
material legally judged to be threatening or obscene, or material protected
by trade secret law. You agree to indemnify and hold harmless OEM.NET from
any claims resulting from your use of the service which damages you or
another party.
3. On-Line Etiquette: Customer and Customer's end users are prohibited from
activities which would disrupt OEM.NET Internet Services. In addition, users
are forbidden from impersonating others and making unsolicited commercial
appeals. Examples of prohibited conduct include:
a. SPAMMING
b. HACKING IP SPOOFING PING FLOODING
c. ATTEMPTING TO GAIN ENTRY INTO ANY OEM.NET COMPUTER SYSTEM
4. OEM.NET"s RIGHT TO MONITOR. OEM.NET may, but is in no way required to or
promises to, electronically monitor through router and/or any and all
traffic which passes over our Wide Area Network. This monitoring may include
public as well as private communications and data transfers from our
Customers and their end users and to our Customers and their end users as
well as any and all communications and data transfers to and from any other
internet sites. OEM.NET will monitor our Customers and their end users and
those who use or transmit communications or other data over our network for
security purposes and system utilization and for compliance with the OEM.NET
Network Policy. Furthermore, OEM.NET reserves the right to monitor and
disclose any content, records or electronic communications of any kind (1)
to satisfy any law, regulation or authorized governmental request; (2) if
such disclosure is necessary to operate OEM.NET; or (3) to protect the
rights or property of OEM.NET, its Customers or Information Providers or
Merchants. The monitoring and disclosure activities of OEM.NET may negate
the privacy protections which the Customer would otherwise enjoy under
federal and state law, including the Electronic Privacy Communications Act.
Customer acknowledges that OEM.NET may do so and Customer understands they
may be giving up privacy rights which they would otherwise be entitled to
under state, federal and other laws.
5. Any access to other networks connected to OEM.NET's network must comply with
the rules appropriate for that other network. Use of OEM.NET's network
itself may be for any lawful purpose. Use of OEM.NET's network for lawful
commercial purposes is both permitted and encouraged. Connectivity is
provided for your organization only, and resale of direct IP connectivity to
other organizations or individuals is prohibited, unless noted in Schedule
'A'.
6. OEM.NET attempts to run an "open" system which allows customer access to a
wide ranage of internet offerings. OEM.NET does not censor the content of
newsgroups, and it is up to each individual user to determine which
newsgroups are appropriate for viewing and participation. There are a number
of tools which can allow Customers and end users to screen out unwanted
material. It is up to each individual to Site such available tools to
screen for content.
<PAGE>
7. OEM.NET retains the right in its sole discretion not to carry on its Service
"unlawful material" and further OEM.NET reserves the right to restrict
access to any material which violates OEM.NET's Network Policy. OEM.NET,
will refuse to connect to and will terminate any offending Service, in the
event that offending material is created, offered or encouraged by Customer
or its End Users which is unlawful as determined by applicable
international, federal, state or local laws, regulations, or ordinances such
Customer or end user account will be termianted. In addition, such Customer
account will be terminated if the Customer is found to have had any role in
the creation, implementation, distribution, posting or the like of such
material. Such termination shall occur immediately and without prior notice.
Whether the Customer played any such role shall be determined exclusively
by OEM.NET.
8. Payment is due when indicated on invoice. Accounts are in default if
payment is not received by that date. If your payment is returned to us
unpaid, you are immediately in default and subject to a returned check fee
of $25 from us. Accounts unpaid after due date may have their service
interrupted. Such an interruption does not relieve you from the obligation
to pay the monthly charge. Only a written request to terminate your service
60 days from termination relieves you of your obligation to pay the monthly
charge. Accounts in default are subject to 1.8% monthly interest. If you
default, you agree to pay OEM.NET it's reasonable expenses, including
attorney and collection costs, incurred in enforcing it's rights under these
terms and conditions.
9. Billing for OEM.NET will normally commence when the connection from the
OEM.NET hub is completed to your site, and IP packets can be passed.
However, in certain circumstances billing may occur when an OEM.NET hub and
a functioning telelphone circuit are prepared to route IP packets to your
site. Service is invoiced in advance and may be canceled in writing with 60
days notice with no penalty. In the event of early cancellation of this one
year term commitment, without such notice, the customer will be required to
pay 75% of OEM.NET's standard monthly charge for each month remaining in the
term commitment. OEM.NET reserves the right to change the rates by notifying
you 30 days in advance of the effective date of the change.
10. These terms and conditions supersede all previous representations,
understandings or agreements and shall prevail notwithstanding any variance
with terms and conditions of any order submitted. Use of OEM.NET's network
constitutes acceptance of these terms and conditions.
OEM Networks, Inc. Terms of Service
Page 4 of 4