Exhibit 10.15
EXECUTION COPY
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DIAL ACCESS AGREEMENT
This Agreement ("Agreement") entered into as of the Effective Date by and
between IFX Corporation and its subsidiaries ("Provider") and Tutopia.com, Inc.
and its subsidiaries ("CUSTOMER").
WHEREAS, Provider is an Internet service provider offering a wide range of
services for businesses in Latin America; and
WHEREAS, CUSTOMER wishes to purchase Hourly Dial Access services ("Service")
from Provider in Latin America for the purpose of reselling such Service to its
customers (each of which shall be an "END-USER" as defined below and,
collectively, the "END-USERS") under a private label.
NOW, THEREFORE, in consideration of the foregoing and of the mutual covenants
and promises set forth herein, the parties, intending to be legally bound,
hereby agree as follows:
1. Definitions.
1.1 Agreement
"Agreement" means this agreement and all attachments, schedules and/or exhibits
thereto.
1.2 Effective Date
"Effective Date" means the date on which this Agreement is signed by both
parties, or by the last party to sign if the parties sign on different dates.
1.3 END-USER
"END-USER" means any user of Hourly Dial Access service directly from the
CUSTOMER. END-USER shall not include any other entity that resells such
Service.
1.4 Host
"Host" means a computer with a network (or IP) address.
1.5 Hourly Dial Access
"Hourly Dial Access" means Provider making available ports on access servers
in its POPs, pursuant to its dial access service and under the terms and
conditions of this Agreement, to receive incoming analog calls from an END-USER
to establish a TCP/IP connection between a single Host and the Network and the
Internet.
1.6 Network
"Network" means the combination of Provider operated equipment, servers,
circuits, and other data transmission facilities comprising its TCP/IP wide-
area network and which, together with other publicly-accessible TCP/IP
networks, comprises the global Internet.
1.7 POP
"POP" means a Network "point-of-presence" where Provider data communications
equipment and servers are located to provide END-USERS with access to the
Network and the Internet by means of the Services.
Exhibit 10.15
1.8 Service Agreement
"Service Agreement" means a legally binding agreement between CUSTOMER and an
END-USER for Service, subject to the applicable terms and conditions of this
Agreement.
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2. Resale of Services.
2.1 General.
On the terms and conditions set forth herein, CUSTOMER shall purchase from
Provider, and Provider shall sell to CUSTOMER for resale to its END-USERS,
Service, as described herein, at the prices described in Schedule A. Provider
also agrees to provide such Services under the minimum service standards set
forth in Schedule B. Provider shall invoice CUSTOMER in accordance with
Section 4 for Service commencing on the first day END-USER accesses the
Network.
2.2 Service.
Provider shall provide to CUSTOMER, for resale to its END-USERS, Hourly Dial
Access through dialup telephone service through the POPs in which Provider
provides Service, for the fees set forth in Schedule A. Each END-USER will be
solely and exclusively responsible for obtaining analog telephone service to
place the data call to Provider's POP, and for all charges relating to such
service (unless CUSTOMER assumes such obligations on behalf of its END-USERS).
Provider assumes no liability or responsibility to CUSTOMER, END-USER or any
third party for long distance toll charges, or any government applied charges,
incurred by CUSTOMER, END-USER or any third party using the Service. Customer
shall include a disclaimer to this effect in its Terms of Usage with each End
User.
2.3 Limits on Orders.
As of the Effective Date, CUSTOMER may order Service on behalf of its present
or future END-USERS and there shall be no limit on the number of END-USERS who
may use the Network. CUSTOMER acknowledges, however, that Network capacity
cannot be guaranteed. Therefore, Provider may limit CUSTOMER'S requests to add
additional hours if there is insufficient capacity on the Network or in the POP
to provide such number of hours requested by reasonable prior written notice to
CUSTOMER, subject to Provider's obligation to provide the Minimum Services
pursuant to Section 3.4. Notwithstanding the foregoing, Provider shall use
commercially reasonable efforts to accommodate any request from CUSTOMER to
increase the hours above the amounts Provider agreed to provide pursuant to
Section 3.4 below, provided that Provider cannot make any guarantee regarding
its ability to meet such requests. To increase the likelihood that Provider
can fulfill such request, Provider shall maintain excess network capacity at
least sufficient to support capacity in a given month based on the average
growth rate of the previous 3 months + / - 5% of such average.
2.5 Addition of Provider Services.
The parties may agree to include additional Provider services, to include DSL,
Web Hosting, and Co-location services when available, under this Agreement from
time to time. If so, such additional Provider services shall be added only
after mutual agreement on pricing and by a written modification to this
Agreement.
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2.6 License for Services.
2.6.1 Grant of License.
Subject to the terms of this Agreement, Provider hereby grants to CUSTOMER,
within the territories in which Provider operates from time to time, a non-
exclusive, revocable license to, market, distribute and resell the Service
directly to END-USERS under CUSTOMER'S private label, subject to the terms and
conditions hereof. Customer may not resell the Service to anyone who is not an
END-USER.
2.6.2 Limitations on License.
The grant of the foregoing license shall not entitle or in any way be construed
to entitle CUSTOMER to: (a) use Provider's trademarks, trade names, copyrighted
material, service marks and/or logos in connection with CUSTOMER'S sales,
advertisements and promotion of the Services, except in materials provided (or
approved prior to CUSTOMER'S use thereof) by Provider; (b) sublicense or assign
any of its rights under this Agreement, except as may be expressly permitted by
this Agreement; or (c) make any agreement or incur any liability for or on
behalf of Provider, except as may be expressly permitted by this Agreement.
2.7 Second-Level Technical Support.
Provider, through its staff or through a third party reasonably acceptable to
CUSTOMER, shall provide directly to CUSTOMER'S designated technical contacts
only (as identified by CUSTOMER on a Provider-provided form), at no additional
charge, reasonable second-level technical support for the Services provided
herein and for Network problems. However, under no circumstances shall Provider
be obligated to provide any type of technical support, customer service, or
problem escalation support directly to END-USERS. CUSTOMER shall not disclose to
its END-USERS any of the contact information for Provider's or the third party's
staff provided to CUSTOMER for its exclusive use.
2.8 Provider POPs.
Provider may change the location of an existing POP, and/or change the means for
accessing such POP (i.e., access numbers) as it, in its sole discretion, deems
appropriate; provided, however, that if the effect of such change is to
materially diminish the geographical coverage or capacity (on the same Dial-In
basis) as serviced by the POP prior to such change, CUSTOMER shall have the
right, in its sole discretion, to provide access from another service provider
for such POP, without any penalty, upon thirty (30) days written notice. In the
event Provider deems it necessary to close an existing POP, Provider shall
provide CUSTOMER with sixty (60) days prior written notice thereof.
3. CUSTOMER'S Obligations.
3.1 Technical Support, Customer Service, and Problem Escalation
Support
CUSTOMER shall be exclusively responsible for all technical support, customer
service, and problem escalation support for its END-USERS. Under no
circumstances shall CUSTOMER refer END-USER phone calls, e-mail, or other
communications to any Provider or third party staff. All communications by
CUSTOMER relating to END-USER problems or concerns shall be made directly and
exclusively between Provider (or its designated third party) and CUSTOMER's
designated technical contacts.
3.2 END-USER Billing.
CUSTOMER shall be responsible for all pricing and service plans, taxes and other
governmental charges, billing and collections with respect to END-USERS.
CUSTOMER is responsible for payment of all Provider charges, pursuant to Section
4 hereof, regardless of whether Customer is paid by its END-USERs.
To the extent that Provider has the ability to determine what the END USER pays
for local telephone access costs, Provider and CUSTOMER shall mutually agree on
the discounts or other benefits that
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Provider will make available to the END
USER. Such discounts or benefits shall be at least equal to the best discounts
or benefits that other free ISP's in the same market offer to their end users.
3.3 Limitation on Warranties and Representations.
Neither CUSTOMER nor its agents shall offer warranties or representations for
the Service which would obligate or otherwise bind Provider beyond any warranty
or representation expressly set forth in this Agreement.
3.4 Forecast and Request.
Prior to the end of each month, CUSTOMER shall send to Provider, a three month
rolling forecast (each, a "Forecast") of the number of END-USERS and hours
expected to be utilized by Customer under this Agreement and the POPs to which
they are expected to connect in the following three months. The Forecast shall
determine the number of hours that Provider shall provide to Customer during
the last month of the Forecast (the first two months of the Forecast to be used
by Provider solely for planning purposes only). The Forecast may indicate an
increase or decrease over prior periods. With respect to the final month of
each Forecast, Provider may either fully agree with the Forecast (an "Agreed
Forecast"), partially agree with the Forecast (a "Partially Agreed Forecast")
or reject the Forecast (a "Rejected Forecast"). The parties agree that Provider
will not disagree with any Forecast with respect to any month below 4.5 million
hours ("Minimum Services").
The first forecast must be delivered within 15 days of the Effective Date.
With respect to an Agreed Forecast, Provider shall provide the Hours forecasted
for the third month of the Forecast.
With respect to a Partially Agreed Forecast, Provider shall provide the Hours
agreed for the third month of the Forecast to the extent that Provider agrees
with the Forecast. To the extent that Provider does not agree with the
Forecast, Customer may elect to choose another Provider for such non-agreed
hours.
With respect to a Rejected Forecast, CUSTOMER shall be free to pick a different
Provider of Service for the third month of the Forecast.
CUSTOMER may request additional hours in excess of the amount set forth in any
Forecast for the first two months of any Forecast. However, if Provider is not
willing to provide such level of Service, Customer may purchase such Service
elsewhere.
With respect to an Agreed or Partially Agreed Forecast or request, the Customer
will pay for the hours used as described in Schedule A and in accordance with
Section 4.
With respect to a Partially Agreed Forecast or a Rejected Forecast, Customer
may at its sole option choose to force Provider to satisfy the Forecast (an
"Enforced Forecast"), up to the lower of: a) the Forecast or b) a projected
compounded monthly growth of 25%.
If Customer elects to make Provider accept an "Enforced Forecast" with respect
to the third month of the Forecast, Customer will pay Provider for such month
the higher of: (a) the total amount of hours committed to be provided by the
Provider multiplied by the effective hourly rate set forth in Section 3 of
Schedule A, divided by 1.25 for the first six months after the date of this
Agreement, 1.175 for the next six months, and 1.10 for the second year and the
third year, whether or not such hours are actually used, and (b) the pricing
schedule set forth in Schedule A in accordance with Section 4. Noncompliance
of this section by Provider shall not be considered a material breach of this
Agreement if Provider maintains an accessibility level above 95% as required by
the second paragraph of Schedule B of this Agreement.
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With respect to a Partially Agreed Forecast or a Rejected Forecast, Provider
shall have, in the following month, the priority to provide all rejected hours
that Customer has not purchased from third parties.
In addition, when any commitment with such third parties expires, Provider shall
have priority to provide any such hours that CUSTOMER still requires.
3.5 Customer's Obligation to Provider.
Provider will have priority as Customer's Hourly Dial Access service provider in
those POPs in Latin America in which Provider has a presence at the time of the
Effective Date (with the express exclusion of the US) (the "Regions"); provided
that (i) the quality and availability of the Services in the applicable Region
shall be at least equal to those available to Customer from any other
telecommunications service provider and to the extent that sufficient
telecommunications capacity is available to adequately service Customer's
forecast and/or requests in the Regions, and (ii) Provider is in compliance with
this Agreement. Provider's services will be provided through Provider's wholly-
owned or controlled in-country subsidiaries.
4. Payment.
4.1 Payment Terms.
Provider shall invoice CUSTOMER monthly, in arrears for Service provided
hereunder, including any amounts in excess of the Minimum Revenue Commitment. In
every case, CUSTOMER agrees to pay for all Service utilized by CUSTOMER, subject
to the terms and conditions hereof. All invoices will be payable within thirty
(30) days of date of invoice (the "Due Date").
4.2 Late Payment Charges.
Delinquent payments are subject to a late payment charge accruing from the Due
Date at the rate of one percent (1%) per month, of the amount due (but not to
exceed the maximum lawful rate). Late payment charges shall be automatically
added to the next invoice. Late payments shall also be indexed for inflation
based on the local consumer price index.
4.3 Consequences of Non-Payment.
In the event CUSTOMER does not remit payment for "Undisputed Charges" (defined
as all charges invoiced to CUSTOMER except for any specified amounts which
CUSTOMER disputes in good faith, with reference to specific provisions of this
Agreement, and with supporting factual documentation, if any) within fifteen
(15) days after the Due Date, Provider shall give 15 days prior written notice,
delivered via fax transmission and overnight courier, for CUSTOMER to cure such
breach. After expiration of such period, Provider may, at its option and in
addition to the late payment charges set forth in Section 4.2, suspend Service
to CUSTOMER and/or END-USERS. Provider shall resume providing Service as soon as
commercially reasonable upon receipt of such payment (including late payment
charges), and in such event CUSTOMER shall pay Provider a reasonable
reconnection fee (if applicable), which shall be invoiced and paid in accordance
with this Section. Notwithstanding anything to the contrary contained in this
Agreement, CUSTOMER shall be responsible for payment due to the extent that such
amounts relate to CUSTOMER failure to reach the Minimum Revenue Commitment as
set forth in Schedule A. CUSTOMER shall not offset or deduct any amount owed to
Customer from END-USERS notwithstanding that Customer has not received payment
from END-USERS.
5. Term and Termination.
5.1 Term.
The initial term of this Agreement shall be three (3) years beginning on the
Effective Date of this agreement.
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5.2 Renewal.
Following the initial three (3) year term, this Agreement will be renewed for a
one-year term if either party hereto so elects in writing within 90 days prior
to the end of the initial term, provided, that a Change of Control (as defined
below) has not taken place. If a Change of Control of either party has
occurred prior to the end of the initial three (3) year term such party shall
have the right to terminate this Agreement upon expiration of the three (3)
year term and the other party shall not have the right to extend for the one
(1) year renewal term as provided above. If this Agreement is so renewed,
Customer shall be obliged to purchase from Provider during each month of the
renewal term the lower of: a) 20% of the total hours to be used by Customer for
providing internet service to its End Users or b) four (4) million hours per
month for sale to Customer's End Users. The price for such services shall be
as provided in Schedule A . After the first 12 month renewal term, this
Agreement shall automatically continue upon the same terms and conditions for
subsequent one-year periods unless terminated by either party upon written
notice given at least sixty (60) days prior to the end of the applicable one-
year period.
5.3 Termination.
5.3.1 By Either Party.
Either party may terminate this Agreement if the other party has materially
breached this Agreement and has failed to cure such breach within thirty (30)
days after the non-breaching party has given written notice by fax transmission
and overnight courier clearly specifying such breach. Further, Customer may
terminate this Agreement as set forth in Schedule B.
5.3.2 Other Termination.
(a) Upon termination of this Agreement for any reason at the end of the initial
or any subsequent term, Provider, upon request of CUSTOMER shall continue
to provide Services under the terms herein for no more than three (3)
commencing at the end of the term then in effect, provided that CUSTOMER
shall continue to make payments for such Services rendered as set forth in
Section 4, at the applicable rates described in Schedule A.
(b) In case of termination as a result of failure of the parties to reach an
acceptable "re-negotiated" price, as provided for in Schedule A, then
CUSTOMER shall transfer all of its End-Users off of the Provider Network
within a minimum period of three (3) months after the date of termination,
and Provider shall continue to provide Services for this three (3) month
period, as set forth herein.
6. Limitation of Warranties & Liability.
6.1 LIMITATION OF WARRANTIES.
EXCEPT AS OTHERWISE SPECIFICALLY PROVIDED HEREIN, PROVIDER DOES NOT WARRANT ANY
CONNECTION TO, TRANSMISSION OVER, NOR RESULTS OF USE OF, ANY NETWORK
CONNECTION, SERVICE, EQUIPMENT OR FACILITIES PROVIDED UNDER THIS AGREEMENT.
EXCEPT AS OTHERWISE SPECIFICALLY PROVIDED HEREIN, PROVIDER FURTHER DISCLAIMS
ALL WARRANTIES, WHETHER EXPRESS, IMPLIED OR STATUTORY, INCLUDING, WITHOUT
LIMITATION, ANY IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A
PARTICULAR PURPOSE AND NON-INFRINGEMENT OF THIRD PARTY RIGHTS. EXCEPT AS
SPECIFICALLY PROVIDED HEREIN, AND SUBJECT TO THE LIMITATION SET FORTH IN
SECTION 6.2, PROVIDER SPECIFICALLY DISCLAIMS ANY RESPONSIBILITY FOR ANY DAMAGES
SUFFERED BY CUSTOMER OR ANY THIRD PARTY, EXCEPT FOR THOSE CAUSED BY PROVIDER'S
GROSS NEGLIGENCE OR WILLFUL MISCONDUCT.
CUSTOMER ACKNOWLEDGES THAT ITS END-USERS MAY PERIODICALLY NOT BE ABLE TO ACCESS
THE NETWORK. WITHOUT LIMITING PROVIDER'S OBLIGATIONS SET FORTH ON SCHEDULE B,
PROVIDER WILL TAKE REASONABLE MEASURES TO MINIMIZE SUCH INABILITY TO ACCESS
THE
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NETWORK IF WITHIN PROVIDER'S REASONABLE CONTROL, HOWEVER, PROVIDER DOES NOT
WARRANT OR REPRESENT THAT EACH AND EVERY END-USER WILL BE ABLE TO ACCESS THE
NETWORK ON EVERY LOG-IN ATTEMPT.
6.2 LIMITATION OF LIABILITIES.
EXCEPT FOR CUSTOMER'S PAYMENT OBLIGATIONS, OR THE PARTIES' RESPECTIVE
INDEMNIFICATION OBLIGATIONS, NEITHER PARTY (TO INCLUDE ITS PARENT COMPANY IF
ANY), SHALL BE LIABLE TO THE OTHER FOR ANY LOSS, DAMAGE, LIABILITY, CLAIM OR
EXPENSE ("CLAIMS") ARISING OUT OF OR IN RELATION TO THIS AGREEMENT OR THE
PROVISION OF ANY SOFTWARE, HARDWARE OR SERVICE, HOWEVER CAUSED, WHETHER
GROUNDED IN CONTRACT, TORT (INCLUDING NEGLIGENCE) OR THEORY OF STRICT
LIABILITY, GREATER THAN THE LESSER OF (A) $100,000, OR (B) THE SUM TOTAL OF
CUSTOMER'S PAYMENTS TO PROVIDER DURING THE SIX (6) MONTHS IMMEDIATELY PRECEDING
THE EVENT FOR WHICH DAMAGES ARE CLAIMED. EXCEPT FOR THE PARTIES' RESPECTIVE
INDEMNIFICATION OBLIGATIONS, IN NO EVENT SHALL EITHER PARTY BE LIABLE FOR ANY
INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE OR OTHER CONSEQUENTIAL DAMAGES WHETHER
OR NOT FORESEEABLE (INCLUDING, WITHOUT LIMITATION, DAMAGES FOR THE LOSS OF
DATA, GOODWILL OR PROFITS) ARISING OUT OF OR IN RELATION TO THIS AGREEMENT EVEN
IF ADVISED BEFOREHAND OF THE POSSIBILITY OF SUCH LIABILITY. NO ACTION OR
PROCEEDING AGAINST PROVIDER MAY BE COMMENCED MORE THAN TWO YEARS AFTER THE
SERVICES GIVING RISE TO THE CLAIM ARE RENDERED.
7. Proprietary Rights.
7.1 Ownership of Proprietary Data.
Except for the license specifically granted to CUSTOMER as set forth
in Section 2.6, Provider shall at all times retain full and exclusive
right, title, and ownership interest in and to the Service, the Network,
all its names, logos, trade names, trademarks, copyrights, service marks
and any and all other intellectual property or trade secret rights related
thereto, and CUSTOMER shall at all times retain full and exclusive right,
title, and ownership interest in and to its service, all its names, logos,
trade names, trademarks, copyrights, service marks and any and all other
intellectual property or trade secret rights related thereto. Neither
Party may use any patent, copyrightable materials, trademark, trade name,
trade secret or other intellectual property right of the other Party except
in accordance with the terms of the license provision contained herein.
7.2 Notice Requirement.
CUSTOMER shall place a notice on all materials using Provider copyrighted
materials, trademarks or service marks (including without limitation Service
Agreements), as follows:
"(C) 200_, Licensed to [CUSTOMER] along with applicable trademarks and
intellectual property. All Rights Reserved."
7.3 Infringement of Proprietary Rights.
CUSTOMER shall notify Provider of any action by any third party known or
suspected by CUSTOMER to constitute an infringement of Provider's proprietary
rights. CUSTOMER shall honor all reasonable requests by Provider, other than
engaging as a party in litigation (unless Provider agrees to indemnify and hold
Customer harmless from such litigation, including the payment of Customer's
reasonable legal fees), to perfect and protect at Provider's expense any rights
of Provider in the Services, the Network or such intellectual property or trade
secret rights. Provider shall notify CUSTOMER of any action by any third party
known or suspected by Provider to constitute an infringement of CUSTOMER's
proprietary rights. Provider shall honor all reasonable requests by CUSTOMER,
other than engaging as a party in litigation (unless CUSTOMER agrees to
indemnify and hold Provider harmless from such litigation, including the payment
of Provider's reasonable legal fees), to perfect and protect at CUSTOMER's
expense any rights of CUSTOMER in the Services, the Network or such intellectual
property or trade secret rights.
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8. Indemnity Provisions.
8.1 By Provider.
Provider will defend, indemnify and hold CUSTOMER harmless from and against any
losses arising out of any claim by an END-USER which is based on any warranty,
promise or representation made by Provider to Customer under this Agreement
relating to Provider's obligations to provide the Service. Failure by the
CUSTOMER to include in its Service Agreements with END-USERS the provisions
required by this Agreement (Sections 2.2 and 7.2) shall relieve Provider from
the responsibilities set forth in this Section 8.1 to the extent such failure is
reasonably related to the alleged losses.
8.2 By CUSTOMER.
CUSTOMER will defend, indemnify and hold Provider harmless from and against all
claims, complaints, losses, costs and expenses asserted by third parties to the
extent they arise out of or in connection with (a) CUSTOMER'S breach of or
default of any covenant or provision of this Agreement, (b) any grossly
negligent or willful act or omission or violation of Section 3.4 by CUSTOMER or
any of its END-USERS, or their respective directors, officers, owners, employees
or agents, or (c) any violation or alleged violation by CUSTOMER or END-USERS of
any and all applicable rules, regulations, statutes, codes, ordinances and other
requirements, whether federal, state, local, foreign, or international, in
connection with the matters contemplated by this Agreement. Provider will
defend, indemnify and hold CUSTOMER harmless from and against all claims,
complaints, losses, costs and expenses asserted by third parties to the extent
they arise out of or in connection with (a) Provider's breach of or default of
any covenant or provision of this Agreement, (b) any grossly negligent or
willful act or omission or violation of Section 3.4 by Provider or its
directors, officers, owners, employees or agents, or (c) any violation or
alleged violation by Provider of any and all applicable rules, regulations,
statutes, codes, ordinances and other requirements, whether federal, state,
local, foreign, or international, in connection with the matters contemplated by
this Agreement.
8.3 Defense Obligations.
The indemnifying party under Section 8.1 or 8.2, above, shall assume the defense
of any claim qualifying for indemnification with counsel reasonably satisfactory
to the other party, and the other party shall cooperate to the extent reasonably
requested by the indemnifying party. The other party may employ its own counsel
in any such case, and shall pay such counsel's fees and expenses. The
indemnifying party shall have the right to settle any claim for which
indemnification is available; provided, however, that to the extent that such
settlement requires the other party to take or refrain from taking any action or
purports to obligate the other party, then the indemnifying party shall not
settle such claim without the prior written consent of the other party, which
consent shall not be unreasonably withheld, conditioned or delayed.
9. Nondisclosure.
9.1 Confidential Information.
Provider and CUSTOMER agree that all information (whether in writing, orally or
in any other format) disclosed by either of them to the other during the
negotiation of this Agreement or to be disclosed during the performance of this
Agreement including all such exchanges which have taken place prior to the
execution of this Agreement (without regard to whether information has been
expressly marked or otherwise designated as confidential or proprietary) shall
constitute "Confidential Information"; provided, however, that Confidential
Information shall not include information that is or becomes publicly known
through no wrongful act of either Party (or any of its employees), has been
approved for release by written authorization of the originating Party, or has
been disclosed pursuant to a requirement of a government agency or of law.
During the term of this Agreement, and at all times thereafter, the Party to
whom Confidential Information has been imparted shall maintain such information
as confidential and shall not disclose or permit the same to be disclosed to any
person or entity. Each Party shall take all reasonable steps to minimize the
risks of disclosure of Confidential Information. Each of the Parties further
agree that the unauthorized disclosure by it of Confidential Information
received from the other shall cause irreparable harm and significant injury to
the other which may be difficult to ascertain. Accordingly, each Party agrees
that the other shall be entitled to equitable relief, including, without
limitation, an immediate injunction enjoining any breach by it of this Section,
in addition to all other remedies available to such Party at law or in equity.
The Parties agree that the obligations in this Section shall survive the
termination or expiration of this Agreement.
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9.2 Limitation on Disclosures.
Neither party shall publicly use the other party's name, trademark, service
mark or any other identifying symbols, directly or indirectly, in any public
advertising, news release, or any other public professional or trade
publication, and, except as may be required by law, without such party's
previous consent. Neither party shall make any press release, public
announcement, or any other public disclosure concerning this Agreement, without
the other party's prior written consent, which shall not be unreasonably
withheld. Notwithstanding the foregoing, nothing set forth herein shall
prohibit CUSTOMER from accurately using Provider's name for CUSTOMER'S own
business promotional purposes, including identifying Provider as one of its
providers to existing and potential business partners or disclosing Provider as
one of its providers as necessary for financing purposes. Notwithstanding
anything contained herein to the contrary, Provider shall be allowed to disclose
the pricing schedule contained herein (without specifically identifying the
identity of CUSTOMER) with respect to any "True Pricing" survey which includes
Provider or with respect to any merger, acquisition or other material
transaction regarding Provider or any of its affiliates (provided that the
intended recipients of such information agree to keep the information
confidential). Notwithstanding anything contained herein to the contrary,
CUSTOMER shall be allowed to disclose the pricing schedule contained herein with
respect to any merger, acquisition or other material transaction regarding
Customer or any of its affiliates (provided that the intended recipients of such
information agree to keep the information confidential).
10. Dispute Resolution.
Any disagreement or dispute between the parties shall, if not promptly resolved
by mutual agreement, be reduced to writing and submitted to the executive
officers of each party designated to handle such disputes. Within 30 days of
the submittal, the executive officers may, upon mutual agreement, meet to
resolve the dispute and to hear any arguments that a party wishes to make in
connection therewith. If the executive officers reach agreement on the
disposition of the dispute, they shall promptly issue their joint written
decision resolving the dispute. Any dispute so dealt with shall be considered
conclusively and finally decided and shall not be the subject of any litigation.
Any dispute, which such executive officers are unable to promptly decide, may be
taken by the aggrieved party to binding arbitration under the rules of the
American Arbitration Association in Miami.
11. General Terms.
11.1 Independent Contractors.
The Parties hereto are acting as independent contractors and under no
circumstances shall any of the employees of one party be deemed the employees of
the other for any purpose. Except as otherwise expressly provided in this
Agreement, this Agreement does not constitute either party as the agent or legal
representative of the other party and does not create a partnership or joint
venture between the parties. Except as otherwise expressly provided in this
Agreement, neither party shall have any authority to act for the other party in
any agency or other capacity, to make commitments of any kind for the account
of, or on behalf of, the other party or to contract for or bind the other party
in any manner whatsoever. This Agreement confers no rights of any kind upon any
third party.
11.2 Force Majeure.
Provider shall not be liable for failure to fulfill its obligations hereunder if
such failure is due to causes beyond its reasonable control, including, without
limitation, actions or failures to act of CUSTOMER or any END-USER, acts of God,
fire, catastrophe, governmental prohibitions or regulations, telephone company
equipment failure or delays, international bandwidth provider failure or delays,
viruses which did not result from the acts or omissions of Provider, its
employees or agents, national emergencies, power failures, insurrections, riots
or wars, or strikes, lockouts, work stoppages or other labor difficulties. The
time for any performance required hereunder shall be extended by the delay
incurred as a result of such act of force majeure, and Provider shall act with
diligence to correct such force majeure.
In order to avoid telephone company equipment failure or delays, or
international bandwidth provider failure or delays, Provider shall contract with
carrier grade telephone companies and international bandwidth providers.
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CUSTOMER shall have the right, in its sole discretion, to secure access from
another service provider without any penalty for those POPs subject to force
majeure for the time period of such force majeure.
11.3 Delays or Omissions.
No delay or omission to exercise any right, power or remedy accruing to a party
under this Agreement shall impair any such right, power or remedy of such party
nor shall it be construed to be a waiver of any such breach or default, or an
acquiescence therein, or of any similar breach or default thereafter occurring;
nor shall any waiver of any single breach or default be deemed a waiver of any
other breach or default theretofore or thereafter occurring. Any waiver,
permit, consent or approval of any kind or character on the part of either party
of any breach or default under this Agreement, or any waiver on the part of
either party of any provisions or conditions of this Agreement must be made in
writing and shall be effective only to the extent specifically set forth in such
writing. All remedies, either under this Agreement or by law or otherwise
afforded to a party, shall be cumulative and not alternative.
11.4 Binding Agreement.
Unless otherwise provided herein, this Agreement shall be binding upon and shall
inure to the benefit of the parties hereto and their respective successors and
assigns . No person or entity other than the parties hereto is or shall be
entitled to bring any action to enforce any provision of this Agreement against
either of the parties hereto, and unless otherwise provided herein, the
covenants and agreements set forth in this Agreement shall be solely for the
benefit of, and shall be enforceable only by, the parties hereto or their
respective successors and assigns.
Subject to Section 5.2, this Agreement is valid and binding and shall continue
in full force and effect without penalty or other adverse consequence,
including, without limitation, consequences resulting from any Change in Control
of either party.
"Change in Control" means the occurrence of any one of the following events:
(a) any consolidation, merger or other similar transaction involving Provider or
Customer, if Provider or Customer is not the continuing or surviving
corporation, or which contemplates that all or substantially all of the business
and/or assets of Provider or Customer will be controlled by another corporation;
(b) any sale, lease, exchange or transfer (in one transaction or series of
related transactions) of all or substantially all of the assets of Provider or
Customer; (c) approval by the stockholders of Provider or Customer of any plan
or proposal for the liquidation or dissolution of Provider or Customer, unless
such plan or proposal is abandoned within 60 days following such approval; (d)
the acquisition by any "person" (as such term is used in Sections 13(d) and
14(d)(2) of the Securities Exchange Act of 1934), or two or more Persons acting
in concert, of beneficial ownership (within the meaning of Rule 13d-3
promulgated under the Exchange Act) of 25% or more of the outstanding shares of
voting stock of Provider or Customer; provided, however, that for purposes of
the foregoing, "person" excludes any underwriter purchasing shares of Provider
or Customer with the intent of reselling them; or (e) if, during any period of
24 consecutive calendar months commencing on the date of this Agreement, those
individuals (the "Continuing Directors") who either (i) were directors of
Provider or Customer on the first day of each such period, or (ii) subsequently
became directors of Provider or Customer and whose actual election or initial
nomination for election subsequent to that date was approved by a majority of
the Continuing Directors then on the board of directors of Provider or Customer,
cease to constitute a majority of the board of directors of Provider or Customer
11.5 Notices.
All notices and other communications required or permitted hereunder shall be in
writing and shall be mailed by certified or registered mail (return receipt
requested), overnight express air courier, charges prepaid, or facsimile
addressed as follows:
To CUSTOMER: with a copy to:
- -------------------------------------- --------------------------------------
- -------------------------------------- --------------------------------------
- -------------------------------------- --------------------------------------
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Exhibit 10.15
______________________________________ ______________________________________
______________________________________ ______________________________________
Phone: _____________Fax: _____________ Phone: _____________Fax: _____________
To PROVIDER: with a copy to:
______________________________________ ______________________________________
______________________________________ ______________________________________
______________________________________ ______________________________________
______________________________________ ______________________________________
______________________________________ ______________________________________
Phone: _____________Fax: _____________ Phone: _____________Fax: _____________
If a notice is given by either party by certified or registered mail, it will be
deemed received by the other party on the third business day following the date
on which it is deposited for mailing. If a notice is given by either party by
overnight air express courier, it will be deemed received by the other party on
the next business day following the date on which it is provided to the air
express courier. If a notice is given by facsimile, it will be deemed received
by the other party after confirmation of receipt.
11.6 Compliance with Law.
Both parties are responsible for complying with all applicable rules,
regulations, statutes, codes, ordinances and other requirements, whether
federal, state, local, foreign, or international, in connection with the matters
contemplated by this Agreement.
11.7 Assignment.
CUSTOMER's rights under this Agreement are non-transferable, and may not be
assigned or sub-licensed without the prior written authorization of Provider
unless the assignment is to an affiliate of CUSTOMER or in connection with the
sale of substantially all the assets of CUSTOMER. Such authorization may be
withheld for any reason. Any act in derogation of the foregoing shall be null
and void; provided, however, that any such assignment shall not relieve CUSTOMER
of its obligations hereunder. Provider's rights under this Agreement are non-
transferable, and may not be assigned or sub-licensed without the prior written
authorization of CUSTOMER unless the assignment is to an affiliate of Provider
or in connection with the sale of substantially all the assets of Provider. Such
authorization may be withheld for any reason. Any act in derogation of the
foregoing shall be null and void; provided, however, that any such assignment
shall not relieve Provider of its obligations hereunder.
11.8 No Third Party Beneficiaries.
No provision to this Agreement is intended, nor shall any be interpreted, to
provide or create any third party beneficiary rights or any other rights of any
kind in any affiliate, shareholder, partner of any party hereto or any other
third party; including any END-USER, unless specifically provided otherwise
herein, and except as so provided, all provisions hereof, shall be personal
solely between the parties to this Agreement.
11.9 Severability.
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Exhibit 10.15
In case any provision of this Agreement shall be invalid, illegal or
unenforceable, such provision shall be construed so as to render it enforceable
and effective to the maximum extent possible in order to effectuate the
intention of this Agreement; and the validity, legality and enforceability of
the remaining provisions hereof shall not in any way be affected or impaired
thereby.
11.10 Order of Precedence.
In the event of any conflict or inconsistency between this Agreement and any
attachments, schedules, or exhibits, the provisions of the Agreement shall
control.
11.11 Governing Law.
This Agreement and any issues arising out of or in relation thereto shall be
governed by the law of Florida applicable to contracts to be performed wholly
within that state. CUSTOMER and Provider agree to the exclusive jurisdiction of
the courts of Florida for any action or proceeding arising out of or in
relation to this Agreement.
11.12 Entire Agreement / Amendments.
This Agreement and the attachments, schedules and exhibits incorporated herein
by reference constitute the entire understanding and agreement between the
parties with regard to the subjects hereof and supersede all prior oral and
written agreements, commitments and understandings with respect to such matters.
Neither this Agreement nor any term hereof may be amended, waived, discharged or
terminated, except by a written instrument signed by the parties hereto. The
execution of this Agreement terminates the existing network services agreement
currently in place between the parties.
11.13 Counterparts.
This Agreement may be executed simultaneously in two or more counterparts, each
counterpart shall be deemed to be an original, and all counterparts individually
or together shall constitute one and the same instrument.
Each party represents and warrants that the person whose signature appears below
is duly authorized to enter into this Agreement on behalf of the party.
In Witness Whereof, the parties have entered into this Agreement as of the date
set forth:
Tutopia.com, Inc.
/s/ Jak Bursztyn
- ----------------------------------------------------
Signature
Jak Bursztyn
- ----------------------------------------------------
Print Name
President
- ----------------------------------------------------
Title
August 30, 2000
- ----------------------------------------------------
Date
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Exhibit 10.15
IFX CORPORATION
/s/ Michael Shalom
- -----------------------------------------------------
Signature
Michael Shalom
- -----------------------------------------------------
Print Name
CEO
- -----------------------------------------------------
Title
August 30, 2000
- -----------------------------------------------------
Date
Attachments:
Schedule A - Pricing Schedule
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Schedule B - Service Standards
- ----------
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