V-ISP/PROXY HOURLY RATE SERVICE ACRES
This Agreement, made and entered into this 19th day of January, 2004
(hereinafter referred to as the "date of this Agreement" by and between
Critical Hub Networks Corp., d/b/a Caribe.Net, a Puerto Rico corporation
having its principal place of business at 1314 Ponce de Leon Ave., 4th
Floor, San Juan, Puerto Rico 00913 (hereinafter "Caribe.Net") and
Powerchannel. Inc., a corporation having its principal place of business at
16 North Main Street, Suite 395 New City, NY 10936 (hereinafter "ISP").
WITNESSETH
Whereas, ISP provides global remote access, dedicated digital
telecommunications and Internet access services, and other ancillary
services, to commercial users;
Whereas, Caribe.Net is in the business of providing various services to
third parties on the Internet, including but not limited to providing
access to the Internet, including by not limited to providing access to the
Internet for individuals and business entities;
Whereas, ISP desires a provider of access to the Internet for its customer
and clients; Whereas, Caribe.Net desires to provide access to the Internet
for customers and clients of ISP;
Whereas, the parties hereto are desirous of setting forth, in writing,
terms and conditions, under which ISP shall direct their customers to
Caribe.Net for service and Caribe.Net shall provide such customers with
access to the Internet;
Now therefore, in consideration of the premises set forth in the foregoing
recitals, which are hereby made a part thereof and incorporated herein by
reference and further, of the mutual promises, covenants, agreements,
conditions, terms and acknowledgments contained herein and other good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, ISP and Caribe.Net hereby agree as follows:
DEFINITIONS
For the purpose of this Agreement, the following terms and/or phrases will
be used throughout the Agreement and shall be defined as follows:
POP (or Point of Presence) shall mean any location within Puerto Rico where
an individual can connect to the Caribe.Net network via a local telephone
number provided by Caribe.Net without incurring any long distance charges
from either their local telephone company or their long distance telephone
company.
PPP Dialup Network Connection shall mean a single Internet connection using a
single username and password, assigned by ISP to a single user, via an analog
telephone line and a modem to a Caribe.Net POP, and established utilizing the
Point-to-Point Protocol (PPP) to pass TCP/IP data packets between the two
modems.
Technical Support shall mean technical support via telephone for assistance with
the use, configuration or setup of any Internet Access Account via any personal
computer system.
Local Internet Access shall mean that from within a particular town and/or
calling area, clients can utilize Caribe.Net's Internet Access Accounts without
incurring any long distance calling telephone costs by connecting via a
telephone number local to that area.
ARTICLE ONE - DURATION
1.1 TERM
Except as otherwise provided herein, the "initial term" of this
agreement shall be one year from the date hereof.
1.2. EXTENSION
This Agreement shall be automatically renewed for successive one year
terms beyond the initial term unless earlier terminated as otherwise
provided in this Agreement. A written notice of termination must be
provided by one party to the other party no later than sixty (60) days
prior to the expiration of the initial term, and hereafter on no less
than sixty (60) days prior to the expiration of successive one year
terms. Hereinafter, the initial term and any extension thereof shall
sometimes collectively be referred to as the "term of this Agreement".
ARTICLE TWO - DUTIES AND RESPONSIBILITIES OF ISP
2:1 CUSTOMERS
ISP shall not be limited to directing all of its customers to
Caribe.Net for purposes of providing access to the Internet under the
terms and conditions of this Agreement.
2.2 ADVERTISING AND PROMOTION
ISP shall be solely responsible for and shall incur reasonable expense
in connection with advertising and promotional activities designed
specifically to generate customers who are interested in access to the
Internet.
2.3 TERMS AND CONDITIONS
ISP shall make such warranties and representations and may limit its
liability to any customer, in such terms, conditions and limitations
substantially similar to those set forth in existing ISP customer
liabilities.
2.4 CUSTOMER CONTACT
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Caribe.Net shall not contact any ISP customer without prior written
permission of ISP whose permission shall not be unreasonably withheld.
2.5 RADIUS AUTHENTICATION SERVER
ISP shall be solely responsible for configuring and maintaining a
Radius Authentication Server for the authentication of users to
establish a PPP Dialup Network Connectivity session. ISP is solely
responsible for ensuring the connectivity of this server to the
Caribe.Net network. Failure of the ISP to ensure connectivity of this
server will result in the inability of its users to establish a PPP
Dialup Network Connectivity session via any Caribe.Net POP.
2.6 NETWORK CONNECTIVITY
ISP is solely responsible for obtaining, administering & maintaining
TCP/IP network connectivity with the Caribe.Net network with a minimum
throughput of 64Kbps.
2.7 CUSTOMER ACCOUNT ADMINISTRATION
ISP is solely responsible for all tasks related to the billing,
support and management of its customers Internet access accounts,
including adding new users, deleting users, suspending users, adding
additional user services, billing users, providing technical support,
among others.
2.8 ADDITIONAL SERVICES
ISP is solely responsible for providing any services to its clients
other than PPP Dialup Network Connectivity. Such services may include
electronic mail, personal web server space, and telephone technical
support, among others.
2.9 ACCEPTABLE USE POLICY
ISP is solely responsible for ensuring that its users are aware that
they must adhere to the Rules of Acceptable Network Usage (hereinafter
referred to as the Rules), appended to this Agreement as Addendum B.
In the event that an ISP user is found to be violating the Rules, it
is the responsibility of ISP to inform said user and to prevent said
user from continuing to violate the Rules, by means such as
terminating the user's account from ISP, terminating the user's
ability to establish a PPP Dialup Network Connection with a Caribe.Net
POP, among others.
2.10 MODEM AVAILABILITY
Due to delays in the installation of telephone facilities which are
out of the control of Caribe.Net, Caribe.Net may inform ISP that a
town is "closed to new clients". In the event that ISP is notified in
writing of such a closure, ISP will cease to accept applications for
ISP services from any resident of such town. Caribe.Net will notify
ISP in writing immediately once additional telephone facilities have
been installed in such town and that ISP may resume accepting
applications for ISP services in such town. In the event that
Caribe.Net informs ISP that a town is "closed to new clients",
Caribe.Net will also cease from accepting application from residents
of such town for its own
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Internet services, and will not resume accepting applications for its
own services until ISP has been notified in writing that ISP may
resume accepting applications from residents of such town.
ARTICLE THREE - DUTIES AND RESPONSIBILITIES OF CARIBE.NET
3.1 INTERNET ACCESS
Caribe.Net will provide PPP Dialup Network Connectivity to any of
ISP's clients via any Caribe.Net POP which are successfully
authenticated on ISP's Radius Authentication Server.
3.2 INTERNET CONNECTIVITY
Caribe.Net is solely responsible for ensuring that its POPs are
connected to the Internet, and for providing PPP Dialup Network
Connectivity to all successfully-authenticated ISP users via any
Caribe.Net POP, provided that ISP is in accordance with all other
terms in this Agreement, including payment terms & conditions &
network connectivity requirements.
3.3 RADIUS PROXY SERVER
Caribe.Net will maintain a Radius Proxy Server which, when a user
tries to connect to a Caribe.Net POP with username of the form
user@yourdomain.com, the Caribe.Net Radius Proxy Server will query the
ISP Radius server to verify if that username & password are accepted
or rejected. It is the sole responsibility of Caribe.Net to maintain,
configure, and administer the Radius Proxy Server.
3.4 DOMAIN NAME SERVER SERVICES
Caribe.Net will provide all ISP clients who establish a PPP Dialup
Network Connectivity connection via any Caribe.Net POP with Domain
Name Server (DNS) service for the purpose of navigating and connecting
to servers and information on the Internet.
3.5 MODEM AVAILABILITY
Caribe.Net will perform to its best efforts to maintain a user:modem
ratio of no greater than 10:1.
3.6 BANDWIDTH AVAILABILITY
Caribe.Net will perform to its best efforts to maintain a maximum
bandwidth usage of 75% or less on all Caribe.Net network transmission
circuits.
ARTICLE FOUR - TECHNICAL SUPPORT AND CUSTOMER INQUIRES
4.1 SERVICES OF CARIBE.NET
Caribe.Net shall provide technical support services solely to ISP's
staff and employees in relation to the PPP Dialup Network Connectivity
of a customer of ISP to the Internet via any Caribe.Net POP. No
technical support will be provided for any of ISP's clients, or
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for assistance with the configuration of any other software other than
the dialup network components required to establish a PPP connection.
All of said services shall be performed by Caribe.Net during its
regular technical support operating hours.
4.2 SERVICES OF ISP
ISP shall provide its own clients with technical support services, and
will provide assistance with the configuration of the client's
software to connect to the Internet via any Caribe.Net POP. This
includes providing the client with the correct username, password, DNS
server IP addresses, the phone number of the Caribe.Net POP closest to
the user, and any other information necessary in order for the client
to establish a PPP Dialup Network Connection via a Caribe.Net POP.
ARTICLE FIVE - PAYMENT
5.1 AMOUNT
ISP shall make payment to Caribe.Net in the amount described in
Addendum A "VISP/PROXY Hourly Rate Price Schedule", for PPP Dialup
Network Connectivity usage by ISP's users.
5.2 CHANGES IN AMOUNT
Due to the changing laws and costs in the communications industry,
significant changes in costs may require Caribe.Net to increase and/or
decrease the costs as described in Addendum A. Such changes may
include new taxes or fees imposed either by a federal or local
government agency; significant telecommunication circuit increases
and/or decreases; among others. Caribe.Net will not increase and/or
decrease any prices as described in Addendum A without first providing
ISP with a written 90 day notice of such pending changes and without
providing ISP with the option to terminate this contract prior to the
expiration of the term without penalty.
5.3 ISP INVOICING AND PAYMENT TERMS
Caribe.Net will send ISP an invoice each month for services rendered
during the previous calendar month. Invoices will be sent via postal
mail, fax and/or electronic mail. Payment is due in full NET-30, or
within 30 days of the date of invoice. If payment is not received
within 45 days of the date of invoice, Caribe.Net may suspend all ISP
services as described in this Agreement until payment is made.
Caribe.Net will not be liable for any damages suffered or incurred by
ISP as a result of the suspension of ISP services because of failure
ISP to submit payment on time.
Any payment made which is returned to Caribe.Net unpaid, such as a
bounced check or stop payment placed on a check among others, will
result in immediate suspension of ISP's services, and a "Bad Check"
fee of $100 will be added to ISP's account.
5.4 BILLING AND COLLECTION
ISP shall provide all services of billing and collection to its own
clients, and shall be
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responsible for all costs and expenses incurred in connection with
services rendered by Caribe.Net, under the terms of this Agreement.
5.5 FAILURE TO BILL OR COLLECT
ISP shall make payment to Caribe.Net, as described under the terms of
this Agreement, notwithstanding ISP's failure to bill or collect from
an ISP customer for services provided by Caribe.Net, under the terms
of this Agreement.
ARTICLE SIX - NON-EXCLUSIVITY
6.1 ISP and Caribe.Net agree to the terms of this Agreement with the
understanding that both ISP and Caribe.Net can and may offer similar
services to the market at competitors. ISP and Caribe.Net agree to the
terms of this Agreement with the understanding that the right to offer
PPP accounts to the market is non-exclusive and mutually competitive.
ARTICLE SEVEN - NON SOLICITATION
7.1 ISP and Caribe.Net, each to the other, hereby agree that during the
term of this Agreement and for a period of sixty (60) days after
termination of this Agreement, neither party shall solicit any
business from any customer(s) of the other party.
ARTICLE EIGHT - COVENANT NOT TO COMPETE
8.1 PERSONNEL
Unless otherwise agreed to by the parties in writing, both ISP and
Caribe.Net shall not hire, employ, or engage in any manner the
services of any employee, servant, director or shareholder of the
other party during the term of this Agreement.
8.2 NETWORK
Unless otherwise agreed to by the parties in writing, ISP agrees not
to expand his network, or contract network services from another party
in any area in which ISP's clients are able to establish a PPP Dialup
Network Connection via a Caribe.Net POP.
ARTICLE NINE - LIMITATION OF LIABILITY
9.1 CONTRACT
Neither Caribe.Net, nor any of its agents, contractors, technicians,
or any tier shall be liable to ISP or any other person or organization
in contract for any general, special, indirect, incidental, or
consequential damage whatsoever, including but not limited to any lost
data, lost time or other system related damages, damage or loss of
property or equipment, loss of profits or revenues, cost of capital,
etc., which arises out of or is in connection with the services of
Caribe.Net covered or furnished within the terms of this Agreement.
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9.2 TORT
Neither Caribe.Net nor any of its agents, contractors, technicians or
any tier shall be liable to ISP or any other person or organization
for any damage whatsoever in tort (whether based in negligence,
willful conduct or strict liability) for any act or omission by ISP or
any of its servants, employees, or agents or for any use (other than
its own intended purpose), tampering, or illegal use of by the
customers which arises out of or is in connection with the services of
Caribe.Net covered by the terms of this Agreement.
9.3 The remedies of ISP set forth herein are exclusive and the total
cumulative liability of Caribe.Net and any of its agents, contractors,
technicians, and any tier with respect to this Agreement, or anything
done in connection herewith such as performance or breach hereof, or
from installation, configuration, startup/initialization, programming,
or any other services of Caribe.Net covered by or furnished under the
terms of this Agreement, in tort (including negligence or strict
liability) or otherwise, shall not exceed the monthly service fees
paid to Caribe.Net on which such liability is based.
ARTICLE TEN - INDEMNIFICATION
10.1 Notwithstanding anything to the contrary herein contained, each party
agrees to indemnify and hold the other harmless against any and all
liability, loss, claim, judgment, damage and expense (including
without limitation attorney fees and costs of litigation) incurred or
suffered by the indemnified party as a result of negligence, willful
misconduct, or breach of any terms of this Agreement by the
indemnifying party, including but not limited to claims, liabilities,
losses, damage, judgment and expense which arise out of alleged injury
or death of any person or damage to property of every kind and
description. The indemnifying party will not be responsible for any
compromise or settlement made without its written consent, which
consent will not be unreasonably withheld. Each party shall promptly
notify the other in writing of any claim for which its obligated under
this indemnity and for which it may seek indemnification from the
other. The indemnifying party shall have the right to sue the defense
of any such claim. Both parties shall confer as to and agree on the
legal counsel(s) to be selected in such defense.
ARTICLE ELEVEN - NONDISCLOSURE
11.1 GENERAL
Both parties agree not to disclose to any third party any proprietary
or confidential information obtained from the other during the
negotiation or performance of this Agreement which the Agreement is in
force and for three years thereafter, including any and all technology
and trade secrets now existing or arising in the future, price,
schedules and customer lists.
ARTICLE TWELVE - REMEDIES FOR BREACH
12.1 Except as otherwise limited by Article Nine, if either party breaches
any of the terms and
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provisions of this Agreement on its part to be performed, whether such
breach pertains to a default in payment or otherwise, the
non-breaching party shall have the right, if it so elects, to serve
upon the breaching party a written notice of its intentions to
terminate this Agreement and the nature of the breach. (a) The
breaching party shall thereupon have a period of thirty (30) days
within which to remedy the breach. (b) If the breaching party fails to
duly remedy the breach, then upon the expiration of the thirty (30)
days this Agreement and any rights herein granted shall in all
respects cease and terminate, and the breaching party shall have no
further rights hereunder. (c) Notwithstanding such termination, each
party's rights arising out of this Agreement or in connection
therewith or existing prior thereto shall nevertheless continue in
full force and effect, including such party's right to sue for damages
caused to them by the other party's breach and failure to cure the
same within the aforementioned time period.
12.2 Nothing in this Agreement shall bar either party's right to seek
specific performance of the provisions of this Agreement and
injunctive relief against threatened conduct that will cause it loss
or damages under customary equity rules, including applicable rules
for obtaining restraining orders and preliminary injunctions. Both
parties agree that the nonbreaching party may seek such injunctive
relief in addition to such further or relief as may be available at
equity by law.
12.3 If a claim for the amounts owed by either party is asserted in any
judicial proceeding, or if either party is required to enforce this
Agreement in a judicial or arbitration proceeding, the party
prevailing in such proceeding shall be entitled to reimbursement of
its costs and expenses, including but not limited to, reasonable
accounting, attorney and attorney assistant fees.
ARTICLE THIRTEEN - TERMINATION
13.1 Jhis Agreement will be considered terminated if any of the following
conditions occur: (a) The term of this Agreement has expired, and
either party had given the other party a written notice of their
intention to terminate this Agreement at the conclusion of the current
term, and such notice was provided a minimum of 60 days prior to the
expiration of the term; or (b) Either party has breached this
Agreement, and the non-breaching party has provided the breaching
party with a written notice of such breach, and the breaching party
has failed to remedy the breach in the 30 days following receipt of
written notice of such breach
13.2 In the event of termination, Caribe.Net will suspend all ISP services
as described in this Agreement at 12 midnight on the last day of the
current term, or on the last day of the specified day for termination
of this contract for reasons as described about in sections 13.1 (b)
and 13.1 (c).
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13.3 Except in the event of item 13.1 (c), termination penalties will be
limited to 100% of the minimum monthly service fee as stated in
Addendum A, times the number of months remaining in the current term.
IN WITNESS WHEREOF, the parties hereto have executed this agreement in duplicate
as of the date set forth hereinbelow.
- --------------------------------------------------------------------------------
By: Carlo Marazzi By:Jessica Lampert
Title: President Title:VP Research Aand Development
Company: Critical Hub Networks Corp. Company: Powerchanel ,Inc
Address: PO Box 11278 San Juan, Address: 16 North Main Street
Puerto Rico 00910 Suite 395
New York , NY 10956
Employer Identification Number:
134032400
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ADDENDUM A -
V-ISP/PROXY HOURLY RATE PRICING SCHEDULE
POWERCHANNEL, INC.
Cagbe.Net's V-ISP/PROXY HOURLY RATE program bases its monthly fees on the total
amount of time (rounded to the nearest hour) that ISP customer's had PPP network
sessions established during one calendar month ("Total Connection Time"). Bills
will be calculated by adding the total minutes of PPP network session usage by
ISP's users during one month, and rounding up to the nearest hour.
Startup Fees and Minimum Commitment There is an initial setup fee of $750
required to implement the V-ISP/PROXY HOURLY RATE service. Unless otherwise
agreed to by the parties in writing, the rates stated herein shall remain
constant for the term of the Agreement.
There is a minimum monthly service fee of $1,000.
For the first three months of service, or until May 1, 2004 (whichever is
sooner), the minimum monthly service fee will be $0.
- -,Monthly Fees
ISP will be billed each month the greater of the following:
(a) the minimum monthly service fee; or
(b) The Total Connection Time multiplied by the applicable Hourly Service
Fee (as shown in the table below
----------------------------------------------------------------------------------------
Total Hours of Established PPP network Hourly % Discount
sessions during the mouth Service Fee Base Level
(S/hour)
----------------------------------------------------------------------------------------
Base Level: 0 to 50,000 hours $0.47 0%
----------------------------------------------------------------------------------------
Level 1: 50,001 to 100,000 hours $0.45 5%
----------------------------------------------------------------------------------------
Level 2: 100,001 to 150,000 hours $0.42 10%
----------------------------------------------------------------------------------------
Level 3: 150,001+ hours $0.40 15%
----------------------------------------------------------------------------------------
Security Deposit
ISP is required to maintain a deposit, which will be applicable towards the last
month of service, of an amount equal to the greater of either (a) $2,000; or (b)
the average billing over the course of the previous three (3) months. ISP will
have thirty (30) days to submit any additional security deposit as required due
to increased billing. After six months of service, ISP may request Caribe.Net to
re-evaluate the security deposit requirement utilizing its payment history with
Caribe.Net as the basis for such request.
Future Price Discounts
In the event that ISP exceeds an average billing of 50,000 hours, Caribe.Net
will allow ISP to increase its minimum monthly service fee in exchange for
increased discounts on the hourly service fee rates.
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ADDENDUM B -
CARIBE.NET ACCEPTABLE USE POLICY
This Acceptable Use Policy specifies the actions prohibited by Critical Hub
Networks, Corp. ("Caribe.Net") and its associated companies, to users of the
Caribe.Net Network. Caribe.Net reserves the right to modify the Policy at any
time.
ILLEGAL USE. The Caribe.Net Network may be used only for lawful purposes.
Transmission, distribution or storage of any material in violation of any
applicable law or regulation is prohibited. This includes, without limitation,
material protected by copyright, trademark, trade secret or other intellectual
property right used without proper authorization, and material that is obscene,
defamatory, constitutes an illegal threat, or violates export control laws.
SYSTEM AND NETWORK SECURITY. Violations of system or network security are
prohibited, and may result in criminal and civil liability. Canoe Net will
investigate incidents involving such violations and may involve and will
cooperate with law enforcement if a criminal violation is suspected. Examples of
system or network security violations include, without limitation, the
following.
(a) Unauthorized access to or use of data, systems or networks, including any
attempt to probe, scan or test the vulnerability of a system or network or
to breach security or authentication measures without express authorization
of the owner of the system or network.
(b) Unauthorized monitoring of data or traffic on any network or system without
express authorization of the owner of the system or network.
(c) Interference with service to any user, host or network including, without
limitation, mailbombing, flooding, deliberate attempts to overload a system
and broadcast attacks.
(d) Forging of any TCP-IP packet header or any part of the header information
in an email or a newsgroup posting.
EMAIL. Sending unsolicited mail messages, including, without limitation,
commercial advertising and informational announcements, is explicitly
prohibited. A user shall not use another site's mail server to relay mail
without the express permission of the site.
USENET. Posting the same or similar message to one or more newsgroups (excessive
cross posting or multiple posting, also known as "SPAM") is explicitly
prohibited.
INDIRECT OR ATTEMPTED VIOLATIONS OF THE POLICY, AND ACTUAL OR ATTEMPTED
VIOLATIONS BY A THIRD PARTY ON BEHALF OF A CARIBE.NET CUSTOMER OR A CUSTOMER'S
END USER, SHALL BE CONSIDERED VIOLATIONS OF THE POLICY BY SUCH CUSTOMER OR END
USER.
Complaints regarding Illegal Use or System, Network Security issues, email
abuse, USENET abuse or SPAM should be sent to postmaster@.caribe.net.
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