EXHIBIT 10.4
10.4 Database Access Agreement.
AGREEMENT BETWEEN SOUTHWESTERN BELL TELEPHONE COMPANY
AND NETWORKS ON-LINE FOR CPSOS DATABASE ACCESS
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This Agreement ("Agreement') sets forth the terms and conditions under which
(Southwestern Bell Telephone Company a corporation. (Pacific Bell, a California
corporation.) for itself and its affiliates (hereinafter Company') will allow
N.O.L., a TEXAS CORP. ("Applicant), (collectively the Verities) access to
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Company's proprietary Complex Products Service Order System ("CPSOS') database.
Whereas; Company offers Digital Subscriber Use (DSL") related services from
designated central offices to customers with qualified local loops; and
Whereas, Applicant desires to access and Company desires to facilitate
Applicant's use of Company's csos database to assist in placing authorized
queries regarding loop qualification status and authorized orders for the
provisioning of DSL; and
Whereas, Applicant understands that Company's CPSOS database provides
preliminary information concerning the basic services (e.g. individual line fiat
rated residential service- IFR; individual line measured business service - 1MB)
provided to Company's end user customers ('Customers');
The parties agree as follows:
1 Term. This Agreement shall become effective the 2 day of Sept, 1999, and
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shall remain in effect thereafter until terminated as provided herein ("Term').
2. Applicant's Representations and Responsibilities.
a) Confidentiality. By signing this Agreement Applicant acknowledges
and agrees that, in the performance of this Agreement. Applicant may receive or
have access to technical, customer (including but not limited to CPNI, customer
proprietary information, non-published or any other customer information which
is protected by law or regulation), personnel and business information in
written, graphic. oral or other tangible or intangible forms, including, but not
limited to, ideas, discoveries, concepts. techniques, know-how, trade secrets,
designs, specifications, records, data, computer programs, drawings, models,
business, product, engineering and deployment plans, reports and samples
(collectively referred to as information') owned or controlled by Company. In
addition, such Information may contain proprietary or confidential Information,
disclosures of patentable inventions with respect to which patents may not have
been issued or for which patent applications may not have been filed, or
material which is subject to applicable laws regarding secrecy of communications
or trade secrets. Applicant agrees:
(i) that all such Information and data so acquired or accessed by
Applicant which is owned by Company will be and will remain Company's
Exclusive property;
(ii) to inform its employees engaged in the handling of such
Information of its confidential character and of the existence of
The requirements to maintain its confidentiality and to employ the same
degree of care used in the protection of its own confidential information
to protect and maintain the confidentiality of such Information;
(iii) to stratify maintain the confidentiality of the data stored
within CPSOS and to use it only for the performance of this Agreement
and no other purpose. Information stored in CPSOS includes customer record
information, and restricted and confidential Information that
Applicant also agrees to protect from unauthorized access by
Applicant's employees;
(iv) to prohibit access to the CPSOS database or to any information
derived from the CPSOS database by any agents or third parties of Applicant;
and
(v) to keep any and all such Information and data confidential in
perpetuity after termination of this Agreement
b) CPSOS Database Access and Use. Applicant shall use Company's CPSOS
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database only to assist in placing authorized queries regarding loop
qualification status and authorized orders for the provisioning of DSL. Prior to
initiating a CPSO query concerning customer information or qualification status
stored on CPSOS, Applicant shall either first (1) obtain the bona tide name,
address and telephone number for each customer about whom the information will
be sought, or (2) obtain explicit written consent from each customer authorizing
the release of such information. Nothing contained herein shall be deemed to
authorize Applicant to access customer information for which Applicant does not
have the requisite customer authorization, Any breach of this section is a
material breach of this Agreement and Company shall have the right to
immediately terminate this Agreement
CPSOS agreement
c) Ordering. Applicant acknowledges that DSL is available only to Company's
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customers with qualified loops and equipment served out of DSL enabled central
offices. Applicant will accurately and completely disclose to customers all
relevant restrictions, rates and charges applicable to Company's OSL service.
Applicant shall only place orders for DSL service pursuant to a bona tide
request from the customer, after the customer has been thoroughly informed of
all pertinent restrictions, rates, charges, terms, conditions and Customer
obligations.
d) Letters of Authorization. If Applicant is ordering DSL on behalf of its
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subscriber(s), it must obtain a written or electronic letter of agency ('LOA"),
in conformance with Company's business practices in effect at the time of such
authorization, from the customer. Applicant shall store all original written or
electronic LOAS in a secure location for four (4) years following the end of the
Term and shall produce the same for SBC'slPaaftc's inspection within twenty tour
(24) hours of written notice in response to a legal, regulatory or customer
service review or investigation, or within two (2) days of written notice in the
event of an audit of the Company.
e) Software and Hardware. Applicant is responsible for obtaining all
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necessary approvals, operating support system software and hardware to access
CPSOS functionality, and all orders initiated through CPSOS must comply with the
requirements set forth in the CPSOS training manual and in the SBC Toolbar.
f) Indemnification. Applicant agrees to indemnify and defend Company, its
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affiliates, and the officers, directors, employees and agents of any of them
('Indemnities'), from and against any loss, cost, damage, claims, expense,
fines, penalties, or liability, including costs of defense and attorneys' fees,
arising from Applicant's failure to adhere to any of terms and conditions of
this Agreement and specifically Applicant's access and use of the CPSOS
database, or Applicant's failure to comply with any applicable law, rule or
regulation, including, but not limited to, any injury to any person or damage to
any property, except to the extent that such loss, cost, damage, claim, expense
or liability arises from the active negligence or willful misconduct of Company
or its employees. Applicant will also keep Company informed as to the progress
of such defense and afford Company an opportunity to participate on an equal
basis in the defense or settlement of such claim.
g) Audit. Applicant hereby agrees that Company may inspect and audit its
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activities to ensure compliance with this Agreement during regular business
hours with advanced notice and Applicant will make any pertinent records and
flies available to Company.
3. Company's Representations.
a) CPSOS Access. Company shall endeavor to provide secure limited access
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to CPSOS functionality during normal business hours. Applicant must obtain
confidential identification and password, documentation and CPSOS training prior
to being allowed to utilize CPSOS.
b) Company reserves the night in its sole discretion to modify or
discontinue the use of any system or interface as it deems appropriate, provided
however, that Company shall provide the Applicant reasonable prior written
notice of any plan to discontinue the system, interface
or of any significant system modification.
c) COMPANY MAKES NO REPRESENTATIONS OR WARRANTIES, EXPRESS OR IMPLIED,
INCLUDING BUT NOT LIMITED TO ANY WARRANTY AS TO MERCHANTABILITY OR FITNESS FOR
INTENDED OR PARTICULAR PURPOSE WITH RESPECT TO THE CPSOS SERVICES PROVIDED
HEREIN.
d) COMPANY RESERVES THE RIGHT TO MONITOR IN ITS SOLE DISCRETION. WITHOUT
NOTICE OR REPORT TO APPLICANT, ACCESS TO AND USE OF THE CPSOS DATABASE BY
APPLICANT, FOR COMPLIANCE WITH THE TERMS OF THIS AGREEMENT.
4. Termination.
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a) Either party may terminate this Agreement for convenience upon 30 days
prior written notice to the other Party. This Agreement may be terminated by
either party upon providing notice to the other of the following events:
b) If the other party fails to perform or to observe, or commits the breach
of any representation, obligation, or covenant of Agreement, and fails to cures
such breach or failure to perform within 15 days, except as set forth below.
c) Company may terminate this Agreement immediately upon the delivery of
written notice to Applicant for Applicants breach which implicates Company's
legal or regulatory obligations or restrictions, including but not limited to an
act or omission by Applicant which causes or may cause Company to be subject to
any review, inquiry or proceeding regarding its regulatory or legal requirements
or obligations, including but not limited to: initiating unauthorized queries of
the CPSOS database; placing unauthorized orders for customers; failing to
obtain, maintain, or provide to Company or any authorized third party upon
request any required LOAs; misrepresentation of Applicant's relationship with
Company; or actions or omissions which dishonor, discredit, reflect adversely
upon or injure the reputation of Company
d) The right of either party to terminate this Agreement is not an
exclusive remedy. and either party shall be entitled to other remedies as
provided by law or in equity
5. Miscellaneous.
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a) Assignment. The parties agree that neither this Agreement, nor any right
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or obligation hereunder, is assignable by Applicant, in whole or in part,
whether by operation of law or otherwise, by Applicant without the prior written
consent of Company.
b) Notices arid Other Communications. Every notice, consent, approval or
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other communication required or contemplated by this Agreement by either party
shall be in writing arid shall be delivered in person, by postage prepaid mail
or by overnight courier service addressed to the party for whom intended at the
address specified below or at such other address as the intended recipient
previously shall have designated by written notice to the other party.
To: Applicant: NetWorks Online, Inc. To: Company
--------- 5400 Foxridge
10497 Town & Country Way #460 Room 240
Houston TX 77024 Mission, KS 66202
ATTN: Don Brown Attention: Kimberly Poores,
Manager - Sales Agency
Phone: 713-554-7100 Phone: (913) 676-6308
Fax: 713-554-0488 Fax: (913) 676-0940
E-mail: DONB@NOL.NET E-mail: kp5575@sbc.com
c) Waiver of Rights. Failure of either party at any time to require the
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other party's performance of any obligation under this Agreement shall not
affect the right to require performance of that obligation. Any waiver by either
party of any breach of any provision hereof shall not be construed as a waiver
of any continuing or succeeding breach of such provision, a waiver or
modification of the provision itself, or a waiver or modification of any right
under this Agreement.
d) Regulatory Changes. Company reserves the right to amend or terminate
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this Agreement to conform it to any requirement of applicable laws or
regulations or to any requirement imposed by the California Public Utilities
Commission or the Federal Communications Commission in the exercise of their
jurisdiction over Company, or to any requirement of the United States Department
of Justice or the state or federal courts in connection with the
Telecommunications Act of 1996.
e) Compliance with Laws. Each party will comply with any and all
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applicable tariffs, rules and orders of judicial and regulatory bodies, and
local, state. and federal laws.
f) No Proprietary Rights Conferred. Nothing contained in the Agreement
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shall be construed as conferring to either party by implication. estoppel, or
otherwise,, any license or right, under any patent, trademark, service mark,
trade name, copyright, or other proprietary right of Company or Applicant.
g) Modification. No modification or amendment of this Agreement shall be
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valid or binding on the parties unless such modification or amendment is made in
writing and duly executed by the authorized representative of each party.
h) Entire Agreement. This Agreement sets forth the entire understanding
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between the parties relating to the subject matter contained herein and merges
all prior discussions between them.
IN WITNESS WHEREOF, the duly authorized persons below have executed this
Agreement as of the date first above written on behalf of the parties.
Southwestern Bell Telephone Applicant: NETWORKS ON-LINE, INC.
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By: Amy E. Cook By: Don Brown
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Amy E. Cook
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(Print Name) (Print Name)
Title: Area Manager Sales Agency Title: DB
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Southwestern Bell
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Date Signed: 9/7/99 Date Signed: 9/2/99
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