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Exhibit 10.27
PRIVATE LABEL INTERNET SERVICE PROVIDER AGREEMENT
This Agreement is entered into on December 14, 1999, by and between Towne
Services, Inc., a Georgia corporation, located at 3950 Johns Creek Court,
Suite 100, Suwanee, Georgia, 30024 ("Licensee"), and Lynxus, Inc., a Delaware
corporation located at 99 Krog Street, Atlanta, Georgia 30307 ("Licensor").
BACKGROUND
A. Licensor is an Internet Service Provider with facilities to provide
access to an internet server network, and with all rights to certain internet
access software that enables subscribers to access information and services on
the "world wide web."
B. Licensee wishes to engage Licensor to provide a facility for the
delivery and maintenance of internet access, to deliver and maintain such
Internet access, and to license to Licensee the right to market and sell
internet subscriptions to its customers as the internet access provider under
its exclusive "private label brand."
C. Licensor and Licensee desire to enter into an Agreement by which
Licensor will provide the above-referenced services and by which Licensee will
be authorized to distribute Licensor's internet Access Software, specifically
customized by Licensor for distribution by Licensee to its customers according
to the terms and conditions of this Agreement.
NOW THEREFORE, the parties hereby agree as follows:
1. DEFINITIONS.
a. Access Software means the Licensor's Internet installation
software product either embodied on CD-ROM or available on-line, including all
subsequent versions thereof provided to Licensee and its End Users pursuant to
this Agreement.
b. Documentation means a digital version of the collateral
materials normally provided by Licensor to End Users for use of the Access
Software (such as instruction/users manuals, data sheets, and registration
forms).
c. Intellectual Property Rights means patent, copyright, trade
secret, and any other intellectual property rights related to Access Software
and Documentation.
d. End User means a customer who acquires or downloads a copy of
the Access Software and Documentation as part of a Product and solely for the
End User's internal purposes and not for resale or redistribution.
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e. End-User Agreement means a digital version of the license
agreement attached hereto as Exhibit "A" that governs the use of the Access
Software by End Users and which must be accepted online by an End User before
such End User is permitted to download the Access Software and Documentation.
f. Product means a CD-ROM or electronically transmitted file
containing a copy of the Access Software and Documentation, digitally signed by
Licensor.
g. License Terms means the terms in Section 2 below.
h. Territory means all areas within the United States that are
subject to the Lynxus Network.
2. SERVICE AND LICENSE TERMS
a. Licensor will provide services for the interconnection of End
Users with the Internet ("Internet Services"). Licensor agrees that the Internet
Services provided to End Users will (i) be on a "private label" basis and (ii)
be of a quality usual and customary in the industry for similarly situated
companies; any failure by Licensor to meet this standard shall constitute a
material breach of this Agreement.
b. Access Software License. Subject to the terms and conditions of
this Agreement, Licensor hereby grants to Licensee a non-exclusive,
nontransferable, license to distribute the Access Software to End Users within
the Territory, provided that Licensee
(i) Only distributes and sublicenses the Access Software as
supplied by Licensor,
(ii) Does not distribute Access Software to any End User who has
not entered into an End User Agreement.
c. Restrictions On Use. The foregoing license grant shall be
subject to the following restrictions:
Licensee will not:
(i) Reverse engineer, reverse compile, or disassemble the
Access Software, except as permitted by law;
(ii) Copy or otherwise reproduce the Access Software in whole or
in part; or
(iii) Modify the Access Software in any manner.
d. Licensing Relationship. The Access Software is licensed, not sold, by
Licensor to Licensee, and nothing in this Agreement will be interpreted or
construed
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as a sale or purchase of the Access Software. Further, any distribution or
delivery of the Access Software by Licensee to any End User will be by license,
and not by sale.
e. Rights Reserved to Licensor. Licensee acknowledges that the Access
Software and Documentation are the property of Licensor and the Licensee has no
rights in the foregoing except those expressly granted by this Agreement.
Nothing herein shall be construed as restricting Licensor's rights to sell,
lease, license, modify, publish, or otherwise distribute the Access Software or
Documentation, in whole or in part, to any other person.
3. LICENSE RIGHTS.
a. Licensee acknowledges and agrees that Lynxus, Inc. is the owner and
developer of both the internet server network and the intellectual property
that Licensor has the right and authority to license to Licensee hereunder and
that Lynxus, Inc. has the right to seek legal recourse directly against
Licensee for violation or breach of the terms of the license granted in this
Agreement.
4. ON-LINE DISTRIBUTION BY LICENSEE
a. Licensing. Prior to any online transmission or distribution of the
Product to a potential End User, and as a precondition to any transmission or
distribution of the Product, Licensee must provide an online display of the
End-User Agreement to such person in a manner (a) that notifies the potential
End User of the terms of the End-User Agreement, and (b) that requires an
affirmative act by such person to clearly indicate acceptance of, and agreement
to be bound by, the terms of the End-User Agreement.
b. Versions. Licensee agrees to distribute only the most recent versions
of the Product as supplied by the Licensor.
5. LICENSEE MARKETING OBLIGATIONS
a. Making Efforts. Licensee will use reasonable efforts to market,
promote, and distribute the Access Software and Documentation to its customers.
Licensee agrees to accurately advise potential End Users on the specifications,
selection, use, and functionality of the Access Software in accordance with the
Documentation.
b. Statements Regarding Access Software. Licensee will not make any
statement about the technical features or capabilities of the Access Software in
any advertisement or other marketing materials beyond information provided to
Licensee by Licensor. Licensee will first obtain the written approval of
Licensor prior to publishing such an advertisement or material.
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c. Cost of Distribution. All costs relating to the promotion,
marketing, and distribution of the Product shall be borne by Licensee.
d. Prices. Subject to minimum subscription charges established by
Licensor, as set out in Section 11, below, Licensee shall have sole discretion
to set the license fee charged to End Users for the Product.
6. LICENSEE'S DELIVERY OBLIGATIONS
By no later than 30 days after the execution of this Agreement,
Licensee shall deliver to Licensor the following:
(i) A domain name which Licensee has established through
INTERNIC;
(ii) Such proprietary marks of Licensee to be integrated into
Access Software to provide brand identification with the Licensee, including
Trademarks, logos and derivations, names, slogans, commercial symbols, and other
Intellectual Property, including copyrights, and all artwork to be placed on the
shipping labels and diskette containing the Product, which Vendor may employ in
connection with the custom designed Access Software;
(iii) The Licensee's IP addressing and applicable RADIUS
information identified by Licensee for inclusion in the Product.
7. LICENSOR'S DELIVERY OBLIGATIONS.
a. Initial Deliverables. Licensor will deliver the current
version of the Access Software as customized and Documentation to Licensee
within 10 days after receipt of materials specified in Section 6. Upon such
delivery, Licensee shall have the right to deliver the Access Software to End
Users, and Licensor shall have the obligation to provide the Internet Services
to End Users as provided hereunder.
b. Each Product installation package will afford End Users the
choice of unfiltered Internet access with total accessibility to the World Wide
Web or filtered Internet access that provides an internet "filter" to block
users access to a comprehensive array of violent, pornographic, and other
unsuitable websites to the fullest extent practicable.
c. New Versions. Licensor shall provide Licensee with copies of
all new releases, updates, or revisions of the Access Software and Documentation
within a reasonable time after each such release is made generally available by
Licensor. Licensor will notify Licensee of its plans for each new release,
update, or revision of the Access Software or Documentation within a reasonable
time prior to such release.
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8. LICENSOR'S SUPPORT OBLIGATIONS
a. Support for End Users. Licensor will provide support to End
Users of the Access Software to be distributed hereunder, according to its then
current published Access Software support policy.
b. Support for Licensees. Licensor will give Licensee, without
charge, technical information, current maintenance documentation, and telephone
assistance to enable Licensee to effectively distribute the Access Software.
Licensee is not entitled to source code for the Access Software. In addition,
Licensor will:
(i) Maintain the entire network and provide technical upgrades
in a timely manner.
(ii) At additional cost, Licensor will provide technical support
to End Users on a separate toll free number dedicated to Licensee.
(a) Licensor will integrate the Licensee toll free number
into Licensor's switch to facilitate personalized call handling at no charge to
Licensee.
(b) No monthly minimum usage charges will be assessed.
(c) All calls will be tracked and billed to Licensee 12
cents/minute. THIS COST IS WAIVED.
(d) Licensor will provide detailed monthly billing reports
and analysis of calls.
9. LICENSOR WARRANTIES
a. Authority. Licensor represents that it has the right and
authority to enter into this Agreement and to grant to Licensee the rights to
the Access Software and Documentation granted in this Agreement.
b. Non-infringement. Licensor warrants to Licensee that the
installation, transmission, and distribution of the Access Software and
Documentation by Licensee according to this Agreement and that promotion and
marketing thereof will not infringe or misappropriate the proprietary rights of
any third party.
c. End-User Warranties. Warranties for the End Users of the Access
Software, if any, will be specified in the End-User Agreement. Licensee is not
authorized to make any other warranties on Licensor's behalf.
d. DISCLAIMER. EXCEPT AS OTHERWISE SET FORTH HEREIN, THE FOREGOING
ARE THE ONLY WARRANTIES MADE BY LICENSOR. LICENSOR SPECIFICALLY DISCLAIMS ALL
OTHER WARRANTIES, EXPRESS OR
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IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF
MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE.
10. LICENSEE WARRANTIES
a. AUTHORITY. Licensee represents that it has the right and
authority to enter into this Agreement.
b. NON-INFRINGEMENT. Licensee warrants to Licensor that it owns or
has the right to use print, publish, display and perform all such proprietary
marks of Licensee to be integrated into Access Software to provide brand
identification with the Licensee, including trademarks, logos and derivations,
names, slogans, commercial symbols, and other Intellectual Property, including
copyrights, and all artwork to be placed on the shipping labels and diskette
containing the Product, which Licensor may employ in connection with the custom
designed Access Software and that the publication, use, promotion, and
marketing thereof will not infringe or misappropriate the proprietary rights of
any third party.
11. FEES AND PAYMENTS
a. SET-UP, LICENSING AND INSTALLATION COSTS
(i) Initial Buildout. License Fee for OEM sublicense:
$3,500.00.
(ii) Lynxus will create the master disc at an initial quantity
of 20 discs to be installed by Towne Services on a pre-loaded basis.
The total sum of $3,500 is due and payable upon execution of
this agreement.
(iii) Installation disks required for end-user installation will
be replicated from the master disc at a cost of $0.80 per disc with a minimum
of 5,000 per order.
b. END USER SUBSCRIPTION COSTS
(i) Setup and installation fee per each new pre-loaded
subscriber by Towne Services: $0.00
(ii) Total Monthly Recurring Cost (MRC)
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(a) Monthly Recurring Costs (MRCs) as indicated below will apply for
all new Licensee Accounts.
1) Per user per month per subscribing End User for monthly paid
accounts.
1 - 1,000 subscribers $13.00
1,001 - 2,500 subscribers $12.50
2,501 - 5,000 subscribers $12.00
5,001 + subscribers $11.50
(b) Remote Access to the network is provided to subscribers when
outside of the Lynxus network local dial area via 8XX (800/888/877) numbers at a
cost of $0.07 per minute. Detailed billing is provided which includes date, time
of day, and call duration.
(c) Licensor will submit invoice(s) to Licensee for MRCs due on a
monthly basis, including information detail sufficient for Licensee to allocate
MRC fees according to End User, provided in an electronic format mutually
agreeable to Licensor and Licensee. Licensee agrees to remit payment for monthly
invoices within 30 days of receipt of invoice.
c. End User Technical Support
(i) End User technical support: billed at 0.00 cents per minute for all
support calls.
d.
f. Books and Records. Licensee agrees to maintain adequate books and
records relating to End-Users' account status utilizing the itemized statement
of End-User subscribers referred to in the preceding Paragraph. Such books and
records shall be available at their place of keeping for Licensor or its
representative for the purpose of determining whether the correct Commissions
have been paid to Licensee according to the terms of this Agreement and whether
Licensee has otherwise complied with the terms of this Agreement.
12. CONFIDENTIALITY
Each party acknowledges that it may be exposed to certain information that
is the confidential and proprietary information of the other party ("Owner") and
that is not generally known to the public ("Confidential Information").
Recipient agrees that it will take appropriate steps to protect such
Confidential Information form unauthorized disclosure, that it will not disclose
such information to any third party, and that it will not use any Confidential
Information (other than as authorized by this Agreement) without prior written
consent of Owner. Recipient's obligations with respect to Confidential
Information shall continue for the shorter of three (3) years from the date of
termination
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of this Agreement or until such information becomes publicly known other than
by breach of this Agreement by Recipient.
13. Licensee Trademarks
a. Use. Licensor shall include copies of the Licensee's trademarks
and other proprietary rights legends ("Licensee Trademarks") on its internet
Website, in the manner specified by Licensee form time to time in writing.
Licensor acknowledges that the Licensee Trademarks are owned solely and
exclusively by Licensee and agrees to use the Licensee Trademarks only in the
form and manner (with appropriate legends) prescribed by Licensee. Licensor
agrees to mark all advertising and other uses of the Licensee Trademarks with a
legend indicating that the Licensee Trademarks are the property of the Licensee.
b. Licensor Review. From time to time as Licensor shall reasonably
request, Licensee shall furnish to Licensor for its examination a copy of all
advertising, brochures, and other materials, in electronic or written form, used
to market or distribute the Product.
14. INDEMNIFICATION
a. By Licensor. Licensor will defend, indemnify, and hold Licensee
harmless from and against any and all liabilities, losses, damages, costs, and
expenses (including legal fees and expenses) associated with any claim or action
brought against Licensee for actual or alleged infringement of any U.S. patent,
copyright, trademark, service mark, trade secret, or other property right based
on the distribution, license, or use of the Access Software or Documentation
according to this Agreement, provided that Licensee promptly notifies Licensor
in writing of the claim and allows Licensor to control, and fully cooperates
with Licensor in, the defense and all related settlement negotiations. Licensor
shall have no liability for any settlement or compromise made without its
consent. Upon notice of an alleged infringement, or upon Licensor's conclusion
that such a claim is likely, Licensor shall have the right, at its option, to
obtain the right for Licensee to continue to exercise the rights granted under
this Agreement, substitute other computer Access Software with similar operating
capabilities, or modify the Access Software so that it is no longer infringing.
b. By Licensee. Licensee shall indemnify and hold Licensor harmless
from and against any and all liabilities, losses, damages, costs, and expenses
(including legal fees and expenses) associated with any claim or action brought
against Licensor that may arise from Licensee's improper or unauthorized
marketing, or distribution, including claims based on representations,
warranties, or misrepresentations made by Licensee; provided that Licensor
promptly notifies Licensee in writing of the claim and allows Licensee to
control, and fully cooperates with Licensee in, the defense and all related
settlement negotiations. Licensee shall have no liability for any settlement or
compromise without its consent.
15. LIMITATION OF LIABILITY
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EACH PARTY'S LIABILITY HEREUNDER SHALL BE LIMITED TO DIRECT DAMAGES. IN NO
EVENT WILL EITHER PARTY BE LIABLE TO THE OTHER FOR INCIDENTAL, INDIRECT,
SPECIAL, OR CONSEQUENTIAL DAMAGES (INCLUDING LOST PROFITS) SUFFERED BY THE
OTHER PARTY, EVEN IF SUCH PARTY HAS PREVIOUSLY BEEN ADVISED OF THE POSSIBILITY
OF SUCH DAMAGES.
16. TERM AND TERMINATION.
a. Term. This Agreement will continue in effect for three (3)
years from the date hereof ("Initial Term"). Upon expiration of the Initial Term
and each Renewal Term thereafter, this Agreement will be automatically renewed
for an additional one (1) year term ("Renewal Term") unless terminated by either
party upon thirty (30) days notice prior to the expiration of the Initial Term
or any Renewal Term.
b. Termination. Licensee may terminate this Agreement at any time
prior to the end of Term upon thirty (30) days written notice.
c. Effect on End Users. Termination by either party will not
affect the rights of any End User under the terms of the End-User Agreement.
17. GENERAL PROVISIONS
a. Assignment. This Agreement may not be assigned by either party
by operation of law to any other person, firm or corporation without the
express written approval of Licensor.
b. Notices. All notices and demands hereunder shall be in writing
and shall be served by personal service or by mail at the address of the
receiving party set forth in this Agreement (or at such different address as may
be designated by such party by written notice to the other party). All notices
or demands by mail shall be by certified or registered mail, return receipt
requested, or by nationally recognized private express courier and shall be
deemed complete upon receipt.
c. Governing Law. This Agreement shall be governed by and construed
in accordance with the substantive laws of the State of Georgia.
d. 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 provided in this Agreement, neither party
shall have any right, power, or authority to act or to create any obligation,
express, or implied, on behalf of the other.
e. Force Majeure. Neither party shall be responsible for delays or
failure of performance resulting from acts beyond the reasonable control of such
party. Such acts shall include, but not be limited to, acts of God, strikes,
walkouts, riots, acts of
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war, epidemics, failure of suppliers to perform, governmental regulations,
power failures, earthquakes, or other disasters.
f. Survival Of Certain Provisions. The indemnification and confidentiality
obligations specified in the Agreement shall survive the termination of the
Agreement by either party for any reason.
g. Headings. The titles and headings of the various sections and paragraphs
in this Agreement are intended solely for reference and are not intended for any
other purpose whatsoever or to explain modify, or place any construction on any
of the provisions of this Agreement.
h. All Amendments In Writing. No provisions in either party's purchase
orders, or in any other business form employed by either party, will supercede
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.
i. Entire Agreement. The parties have read this Agreement and agree to be
bound by its terms, and further agree that it constitutes the complete and
entire agreement of the parties and supercedes all previous communications, oral
and written, between them relating to the license and to the subject matter
hereof. No representations or statements of any kind made by either party that
are not expressly stated herein shall be binding on such party.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the date
specified above.
LICENSOR: LICENSEE:
Lynxus, Inc. Towne Services, Inc.
By: /s/ J. Ebij By: /s/ Bruce F. Lowthers
---------------------- ---------------------
Title: CEO Lynxus, Inc. Title: Bruce F. Lowthers, CFO
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INTERNET SERVICE AGREEMENT
1. PROVISION OF SERVICES. I understand and agree that, subject to the terms
and conditions of this Agreement, [PROVIDER] shall provide me with certain
Internet access and web site hosting services. I understand and agree that I
am fully responsible for the use of such services by me or anyone whom I
permit to use my account, and that [PROVIDER] reserves the right to
terminate my account at any time, for any reason.
2. MY OBLIGATIONS. I understand that I am responsible for determining whether
a [PROVIDER] telephone number is within my local calling area, and that I am
responsible for any long distance charges I may incur in connecting to
[PROVIDER]. If I am using one of [PROVIDER's] unlimited plans, I agree not
to provide any public information service over this connection, not to use
any automatic method to avoid inactivity disconnect, and to keep the
connection active only when I am actively using it. I understand that I may
cancel my account at any time effective the end of that billing cycle. If I
am not satisfied and wish to cancel my account within thirty days of the day
[PROVIDER] activates my account, I may do so and receive a full refund of
all money paid. I understand that [PROVIDER] may change its prices from time
to time, and that I will be provided with 15 days written or electronic mail
notice of any such changes.
4. APPROPRIATE USE OF SERVICES. I agree to maintain my password as private and
confidential information. I agree to use my [PROVIDER] account in a way that
conforms with all applicable laws and regulations. I specifically agree not
to make any attempt to gain unauthorized access to any systems or networks.
I agree that I will not use the [PROVIDER] services (including any web site
I establish on [PROVIDER's] server) or the [PROVIDER] web site to publish,
post, distribute, or disseminate another's proprietary information,
including trademarks or copyrighted information, without express
authorization of the rights holder. I understand and agree that [PROVIDER]
reserves the right to immediately remove (with or without terminating my
account) from my account or any web sites I establish on [PROVIDER's]]
server any material or information which infringes another's property
rights.
5. Security. I understand that the information available through [Provider] or
interconnecting networks may not be accurate, including the content
displayed on the [PROVIDER] Desktop. I understand that internetworking
communications are not secure, and may be subject to interception or loss.
[PROVIDER] makes no warranties of any kind, whether expresses, implied or
statutory concerning the data or information available through the
[PROVIDER] network.
6. WARRANTY DISCLAIMER. I understand the use of my [PROVIDER] account, and any
data of information accessed using that account, will be completely at my
own risk. I understand that the cumulative liability of [PROVIDER] for any
and all claims relating to the service provided by [PROVIDER], in contract,
tort, or otherwise, shall not
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exceed that total amount of the basic service fees paid to [PROVIDER] for
services within the prior year. I agree that [PROVIDER] shall have no liability
for any consequential, indirect special or incidental damages regardless of the
success or effectiveness of other remedies.
7. INDEMNIFICATION. I agree to defend, indemnify and hold [PROVIDER] harmless
and its affiliates harmless from any and all liabilities, costs, and expenses,
including reasonable attorney's fees, related to or arising from, any violation
of this agreement by me or those who access the services through my account, or
the use of the services or the internet and the placement or transmission of
any message, information, software, audio files or other materials on the
Internet by me or by those who have access to the services through my account.
8. TERMINATION. I understand that [PROVIDER] reserves the right to terminate my
account at any time for any reason, including, but not limited to, my failure
to abide by the terms of this agreement or my failure to pay any fees or
charges when due. If my account is inactivated, I may be required to pay
reconnect charges and a prepaid deposit in order to re-active my account. If
my account includes space on [PROVIDER's] server, anything stored in this space
will be deleted upon inactivation. I understand that violation of certain
generally accepted guidelines on Internet usage, such as restrictions on mass
e-mailings and mass advertising, or posting to inappropriate newsgroups, may
cause severe operating difficulties for [PROVIDER], and would be a likely
cause for termination of my account. More detail of violations can be found in
the [PROVIDER] Policy on Appropriate Use as may be available via a link on the
[PROVIDER] home page at http://www.[PROVIDER].net/ and by any other policies
posted on the [PROVIDER] web site.
9. LAW AND JURISDICTION. I understand and agree the laws of the State of
Georgia govern these Terms of Service and my [PROVIDER] account. I expressly
agree that exclusive jurisdiction for any claim or dispute with [PROVIDER] or
relating in any way to my account or my use of [PROVIDER] resides in the courts
of Georgia. I further agree and expressly consent to the exercise of personal
jurisdiction in the courts of Georgia in connection with any such dispute,
including any claim involving [PROVIDER] or its affiliates, subsidiaries,
employees, contractors, officers, or directors.
10. COMPLETE AGREEMENT: AMENDMENTS. This agreement represents the complete
agreement between [PROVIDER] and myself with respect to the subject matter of
this Agreement, and supersedes any other written or oral agreement. I
understand and agree that [PROVIDER] may amend or modify this agreement or
impose new conditions at any time. Any use of [PROVIDER's] services shall be
deemed to constitute acceptance by me of the then-current service agreement
(including any amendments, modification, or new conditions) as published and
made available via a link on the [PROVIDER] home page at
http://www.[PROVIDER].net/.