Exhibit 10.1
INTERNET SERVICES AGREEMENT
THIS INTERNET SERVICES AGREEMENT (this "Agreement") is made and entered
into effective November , 2001, by and between IKANO Communications, Inc., a
Utah corporation ("IKANO"), and Nojata.com, a Utah corporation (the "company"),
on the following:
Premises
IKANO has developed and aggregated several Internet Protocol ("IP")
based products and services; a proprietary IP based billing, provisioning, and
customer management platform (the "Business Rules Platform"); and a network of
networks infrastructure operated by IKANO's network operations centers.
Utilizing this equipment, infrastructure, network resources, and personnel,
IKANO is a turnkey provider of IP products and services to organizations and
their end-user customers, members, and/or employees ("Subscribers"). The company
desires to engage IKANO to provide IP based products and services on the terms
set forth below.
Agreement
NOW, THEREFORE, in consideration of the foregoing premises and the
mutual covenants contained herein and other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, the parties agree as
follows:
1. IKANO Services.
1.1. Scope of Services. Subject to payment of all applicable fees and
the continued cooperation of the Company, IKANO shall use commercially
reasonable efforts to provide the IP based products and services a set forth or
described in the Statement of Work attached hereto as Schedule A (the "Statement
of Work"). The Statement of Work, including any schedules, specifications,
timelines, and requirements included therein, is incorporated into and made a
part of this Agreement. In the event IKANO and the Company agree that IKANO
should provide additional services under the arrangements for their provision
shall be set forth in an addendum to this Agreement, which document shall be
incorporated into and made a part of this Agreement (the services described in
this Agreement and the Statement of Work and the additional services, if any,
are hereinafter collectively referred to as the "Services"). All Services will
be provided in accordance with this Agreement. Except as expressly provided
herein, the Company agrees that IKANO is responsible only for providing the
Services.
1.2. Providing Services. The Company understands that IKANO's
performance under this Agreement is dependent in part on the Company, the
Subscribers, and third parties, including without limitation, suppliers.
Although IKANO will use commercially reasonable efforts to provide the Services,
the provisioning and delivery of the Services will be subject to the continued
cooperation and timely delivery of materials and required process approvals by
the Company; as well as the establishment of mutually acceptable timeframes and
requirements definition. Further, the delivery of the Services will be subject
to delay for reasons beyond IKANO's reasonable control. Accordingly, any
performance to be rendered by IKANO hereunder shall be appropriately waived or
delayed to account for actions or inactions by such third parties. The Company
acknowledges that IKANO has entered into agreements with certain underlying
services provider(s) to be able to provide aspects of the Services and agrees
that IKANO may be unable to provide such Services, or portion thereof, to the
Company in the future due to expiration of such agreement(s) or otherwise. If
IKANO terminates any part of the Service, IKANO shall use commercially
reasonable efforts to find an alternative provider of such Service.
2. Payment for Services.
2.1. Fees and Pricing. In consideration for the Services to be provided
by IKANO, the Company will pay the fees specified in the Statement of Work. All
set-up fees shall be paid in full at the time of execution of this Agreement.
All other fees will be invoiced by IKANO in accordance with its billing and
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invoicing procedures. Generally, invoices will be sent to the Company in the
first five (5) days of each month, and are due and payable within ten (10) days
from the date of invoice. Any fee not paid when due will accrue interest at a
rate of one an done-half percent (1.5%) per month, or the highest rate allowed
by applicable law, whichever is lower, and the Company shall pay all collection
costs incurred by IKANO (including, without limitation, reasonable attorneys'
fees). The Company is responsible for payment of credit card and other payment
processing fees. In connection with offering the Services to the Subscribers,
the Company is solely responsible for all billing adjustments/credits,
creditworthiness, and other service-related requirements of its Subscribers, and
IKANO shall have no liability to Subscribers under this Agreement. The Company's
payment obligations are not contingent upon ability to collect payments or
charges from Subscribers. In certain situations, IKANO may require the Company
to deposit funds with IKANO to secure payment of fees owed by the Company
hereunder. Such deposited funds shall not bear interest.
2.3. Price Escalation. Upon notice of not less than thirty (30) days,
IKANO may, at its discretion, adjust recurring fees under this Agreement,
provided, however, that in the event of a more than eight percent (8%) increase
annually in such prices, the Company may terminate this Agreement within thirty
(30) days of its receipt of such notice. If the Company fails to object to such
adjustment, then the Company shall be deemed to have agreed to the adjustment.
IKANO's standard rates for creative, programming, engineering, and other
services is subject to adjustment from time to time at the discretion of IKANO.
2.4. Nonpayment. After ten (10) business days of nonpayment from any
due date, IKANO may suspend Services. After fifteen (15) days of nonpayment from
any due date, IKANO may terminate the Services and/or this Agreement. The
remedies provided by this paragraph as not exclusive. The Company shall remain
responsible for all charges to the Company which accrued prior to the date of
termination.
3. Minimum Commitment. The parties acknowledge that, in order for the
Services to be successful and to justify the expense, time, and effort to be
incurred by IKANO, the Services must be adopted by Subscribers. Therefore, the
Company agrees to the minimum commitments set forth in the Statement of Work. In
the event these minimum commitments are not being met, IKANO shall have the
right to reevaluate the relationship and may terminate this Agreement on thirty
(30) days' written notice.
4. Customer Use Agreement/Acceptable Use Policy. At registration, each
Subscriber will be required to accept (by signing or clicking through) the terms
and conditions of a Customer Use Agreement/Acceptable Use Policy (the "CUA").
The CUA will have substantively similar terms as those set forth in IKANO's
standard policy, currently located at http:www.ikano.com/useragreemetn.asp, as
the same may be modified by IKANO from time to time. The CUA will contain
provisions prohibiting improper Subscriber activities such as spamming;
illegal/improper postings to newsgroups; and transmitting or otherwise
displaying illegal or improper information or material, including defamatory,
libelous, or obscene items. The CUA will be subject to modification by IKANO
from time to time. Subscribers who do not accept the terms and conditions of the
CUA will not be allowed to access or use IKANO's net work or the Services. The
Company agrees to cooperate with IKANO in enforcing the CUA and to abide by
IKANO's decision to terminate any Subscriber account for violation of the CUA.
IKANO reserves the right to take any and all additional actions it may deem
appropriate with respect to Subscribers who violate the CUA, including, without
limitation, taking action to recover the costs and expenses of identifying
offenders and excluding them from the Services, and levying cancellation charges
and other penalties.
5. Term of Agreement. The initial term of this Agreement shall be for a
period of three (3) years from the date of this Agreement. Thereafter, this
Agreement shall automatically renew on a year-to-year basis unless either party
provides notice to the other party of its intent not to renew this Agreement at
least sixty (60) days prior to the end of the initial or any renewal term. There
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shall be no additional set-up fee in connection with any renewal of this
Agreement, but the recurring fees shall continue, subject to adjustments to
reflect IKANO's then current pricing structure. Notwithstanding any expiration
or termination of this Agreement the Company shall continue to pay for any
Services provided to its Subscribers until the Services are terminated or other
arrangements are made. The cancellation, termination, or expiration of this
Agreement shall not relieve either party of those obligations that, by their
nature, are intended to survive such cancellation, termination, or expiration.
During the term of this Agreement, the Company will not transition any
Subscribers from IKANO's network (including network resources aggregated by
IKANO) to another provider or encourage any Subscriber to terminate his or her
Internet access account.
6. Representations and Warranties.
6.1. IKANO Warranties for Services. IKANO shall perform the Services
consistent with generally accepted industry practices. In order to support the
Services during the term of this Agreement, IKANO shall operate and maintain its
Interest network in accordance with generally accepted and customary industry
standards. IKANO shall use commercially reasonable efforts to monitor and
enforce performance obligations of third party vendors and network providers.
The Company understands that IKANO may, from time to time, need to interrupt the
Services for maintenance and other operations reasons, and that the Company
shall not receive any compensation for such interruptions. Company must report
any deficiencies in the Services to IKANO in writing within five (5) days of
such deficiency in order to receive warranty remedies. EXCEPT FOR THE EXPRESS
WARRANTIES SET FORTH IN THIS AGREEMETN IKANO MAKES NO OTHER WARRANTIES, EXPRESS
OR IMPLIED, AND DISCLAIMS ALL OTHER WARRANTIES, EXPRESS OR IMLIED, INCLUDING,
WITHOUT LIMITATION, WARRANTIES OR MERCHANTABILITY AND FITNESS FOR A PARTICULAR
PURPOSE.
6.2. The Internet. The Company acknowledges and agrees that, except for
the Services, IKANO (and IKANO's suppliers) do not operate or control the
Internet and that (i) viruses, worms, trojan horses, or other undesirable data
or software; or (ii) unauthorized users (e.g. hackers) may attempt to obtain
access to the Company's or its Subscribers' data, website, computers, or
networks. IKANO uses what it believes to be reasonable efforts to protect
itself, its customers, and any end-users from such unauthorized use, but IKANO
is not responsible for failures resulting from the unauthorized acts of third
parties. In the event that IKANO is providing filtering as part of the Services,
the Company acknowledges that filtering is provided only on a "reasonable
efforts" basis and that while filtering may block much objectionable content,
some objectionable content may pass through to Subscribers.
6.3. Company Warranties. The Company represents and warrants that (i)
Company has the power and authority to enter into and perform its obligations
under this Agreement, (ii) Company Content (defined below) does not and shall
not contain any content, materials, advertising or services that are inaccurate
or that infringe on or violate any applicable law, regulation or right of a
third party, including, without limitation, export laws, or any proprietary,
contract, moral, or privacy right or any other third party right, and that
Company owns the Company Content or otherwise has the right to use the Company
Content, and (iii) Company has obtained any authorization(s) necessary for
hypertext links from the web site to other third party web sites. The Company is
solely responsible for obtaining all licenses, approvals, and regulatory
authority for its operations and the provision of the Services to its
Subscribers.
7. Indemnification.
7.1 Indemnification by Company. The Company agrees to indemnify,
defend, and hold harmless IKANO, its directors, officers, employees and agents,
and defend any action brought against same with respect to any claim, demand,
cause of action, debt or liability, including reasonable attorneys' fees, to the
extent that such action is based upon a claim that: (i) if true, would
constitute a breach of any of Company's representations, warranties, or
agreements hereunder, (ii) arises out of the negligence or willful misconduct of
Company; or (iii) any of the Company Content to be provided by Company hereunder
or other material on the web site infringes or violates any rights of third
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parties, including, without limitation, rights of publicity rights or privacy,
patents, copyrights, trademarks, trade secrets and/or licenses.
7.2. Indemnification by IKANO. IKANO agrees to indemnity, defend, and
hold harmless Company, its directors, officers, employees and agents, and defend
any action brought against same with respect to any claim, demand, cause of
action, debt or liability, including reasonable attorneys' fees, to the extent
that such action arises out of the gross negligence or willful misconduct of
IKANO.
7.3. Notice. In claiming any indemnification hereunder, the indemnified
party shall promptly provide the indemnifying party with written notice of any
claim which the indemnified party believes falls within the scope of the
foregoing paragraphs. The indemnified party may, at its own expense, assist in
the defense if it so chooses, provided that the indemnifying party shall control
such defense and all negotiations relative to the settlement of any such claim
and further provided that any settlement intended to bind the indemnified party
shall not be final without the indemnified party's written consent, which shall
not be unreasonably withheld.
8. Limitation of Liability. IKANO SHALL HAVE NO LIABILITY WITH RESPECT
TO IKANO'S OBLIGATIONS UDNER THIS AGREEMENT OR OTHERWISE FOR CONSEQUENTIAL,
EXEMPLARY, SPECIAL, INCIDENTAL, OR PUITIVE DAMAGES EVEN IF AKANO HAS BEEN
ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN ANY EVENT, THE LIABILITY OF IKANO
TO COMPANY FOR ANY REASON AND UPON ANY CAUSE OF ACTION SHALL BEL IMITED TO AN
AMOUT EQUAL TO ONE MONTH'S REVENUES ACTUALLY PAID TO IKANO BY COMPANY UNDER THIS
AGREEMENT UDRING THE MOST RECENT MONTH. THIS LIMITATION APPLIES TO ALL CAUSES OF
ACTION IN THE AGGREGATE, INCLUDING, WITHOUT LIMITATION, BREACH OF CONTRAACT,
BREACH OF WARRANTY, NEGLIGENCE, STRICT LIABILITY, MISREPRESENTATIONS, AND OTHER
TORTS.
9. Intellectual Property Rights.
9.1. Proprietary Right of IKANO. Subject to Company's ownership
interest in Company Content, all materials, including but not limited to any
computer software (in object and source code form), script, programming code,
data, information, or HTML script developed or provided by IKANO or its
suppliers under this Agreement, and any trade secrets, know-how, methodologies
and processes related to IKANO's products or services, shall remain the sole and
exclusive property of IKANO or its suppliers, including, without limitation, all
copyrights, trademarks, patents, trade secrets, and any other proprietary rights
inherent therein and appurtenant thereto (collectively "IKANO Materials"). To
the extent, if any, that ownership of the IKANO materials does not automatically
vest in IKANO by virtue of this Agreement or otherwise, Company hereby transfers
and assigns to IKANO all rights, title and interest which the Company may have
in and to the IKANO Materials. No right or license to any intellectual property
rights associated with the IKANO Materials shall be implied and the Company
shall not copy, modify, reverse engineer, reverse compile, or disassemble any
software code included in the IKANO Materials. Company acknowledges and agrees
that IKANO is in the business of designing and hosting web sites, and that IKANO
shall have the right to provide third parties services which are the same or
similar to the Services, and to use or otherwise exploit any IKANO Materials in
provided such services.
9.2. Proprietary Rights of the Company. The Services may be branded
with such name, logos, marks, and/or other identifying content as provided and
approved by the Company ("Company Content"). Company Content shall include any
materials provided by the Company for incorporation into the Services, including
but not limited to any marks, domain names, logos, proprietary or copyrightable
material, software, images, photographs, illustrations, graphics, audio clips,
video clips or text and other materials of the Company that the Company may
provide to IKANO to facilitate IKANO's provision of the Services and all
intellectual property rights therein. As between Company and IKANO, Company
Content shall remain the sole and exclusive property of Company, including,
without limitation, all copyrights, trademarks, patents, trade secrets, and any
other proprietary rights. The Company assumes sole responsibility for (i)
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acquiring any authorization(s) necessary for hypertext links to third party web
sites and (ii) the accuracy of materials provided to IKANO, including, without
limitation, Company Content, descriptive claims, warranties, guarantees, nature
of business and address where business is conducted, and (iii) ensuring that
Company Content does not infringe or violate any right of any third party. The
Company provide Company Content that does not contain any content or materials
which are obscene, threatening, malicious, which infringe on or violate any
applicable law or regulation or any proprietary, contract, moral, privacy or
other third party right, or which otherwise expose IKANO to civil or criminal
liability. Any such materials provided by Company to IKANO which do not satisfy
the foregoing requirements shall be deemed to be a material breach of this
Agreement. The Company will indemnify and hold IKANO harmless for any
allegations of misuse of such material resulting from the Company's failure to
obtain such necessary permissions and licenses or any other violation of third
party rights caused by use of the Company Content. No title to or ownership of
any of the Company Content will be transferred to IKANO.
9.3. Company License. Company hereby grants IKANO a non-exclusive,
worldwide, royalty free license to edit, modify, adapt, translate, exhibit,
publish, transmit, participate in the transfer of, reproduce, create derivative
works from, distribute, perform, display and otherwise use Client Content as
necessary to render the Services to the Company under this Agreement.
9.4. IKANO License. IKANO hereby grants to Company a limited,
non-exclusive, non-transferable license to make use of IKANO Materials which are
incorporated in the web site and which are required for the operation of the web
site. IKANO hereby reserves for itself all rights in and to the IKANO Materials
not expressly granted to Company in the immediately foregoing sentence. In no
event shall Company use any trademarks or service marks of IKANO without IKANO's
prior written consent.
10. Termination.
10.1. Termination for Breach or Insolvency. Either party may terminate
this Agreement on thirty (30) days written notice of a material breach by the
other party (fourteen (14) days if the breach is nonpayment of amounts due
hereunder), unless such breach is cured within such period. Notwithstanding the
foregoing notice provision, either party may terminate this Agreement
immediately on written notice if the other party (i) ceases to do business or is
unable to pay debts as they mature in the normal course or business; (ii)
becomes or is declared insolvent or bankrupt by a court or tribunal of competent
jurisdiction; (iii) is the subject of any proceeding arising out of its
bankruptcy, liquidation, or insolvency (whether voluntary or involuntary) which
is not dismissed within ninety (90) calendar days; or (iv) makes an assignment
for the benefit of creditors. On any termination, the non-breaching party may
recover from the other party all costs and expenses incurred by the
non-breaching party in connection with the breach (subject to Section 8),
including reasonable attorneys' fees, whether such costs and expenses are
incurred with or without arbitration or other proceedings or before or after
judgment. The non-breaching party may retain all Subscribers and related
information, including credit card information and billing information, and may
continue to provide services to and bill such subscribers in the ordinary course
of business.
10.2. Additional Termination Rights. IKANO may also terminate or
suspend Services to the Company or to any Subscriber at any time without notice
in order to (i) prevent damages to or degradation of its Internet network
integrity which may be caused by the Company or its Subscriber(s); (ii) to
comply with any law, regulation, court order, or other governmental request
order which requires immediate action; or (iii) otherwise to protect IKANO from
liability. IKANO will use commercially reasonable efforts to: (a) minimize the
effect of such termination or suspension; and (b) notify the Company of the
reason(s) for such termination or suspension as soon as reasonably practicable
after such termination or suspension. After ten (10) business days of nonpayment
from any due date, IKANO may suspend Services. After fifteen (15) days of
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nonpayment from any due date, IKANO may terminate the Services and/or this
Agreement. The Company shall remain responsible for all charges to the Company
which accrued prior to the date of termination.
10.3 Survival of Provisions. All terms and provisions of this Agreement
which should by their nature survive the termination of this Agreement shall so
survive.
11. Confidential Information. All information or data related to one
party's business that is designed as confidential or that, by the nature of the
information or the circumstances surrounding its disclosure, should in good
faith be treated as proprietary or confidential shall be "Confidential
Information" and shall remain the property of the disclosing party. Each party
shall use commercially reasonable efforts to protect the confidentiality of all
Confidential Information and shall allow the disclosure of such information
within its own organization only on a need-to-know basis and only to individuals
who have agreed to maintain the confidentiality of such Confidential
Information. If the recipient reproduces any part of such information for
permitted use within its own organization, the recipient shall indicate the
disclosing party's proprietary interest on all such reproductions. If any such
information is to be transferred to the Company's or IKANO's vendors, suppliers
or customers, such information and such transfer must be authorized in writing
by the disclosing party. The obligation to keep information confidential shall
survive termination or expiration of this Agreement. Notwithstanding the
foregoing neither party shall be bound by the confidentiality obligations hereof
with respect to information which (i) was in the public domain at the time of
disclosure; (ii) becomes publicly available through no fault of the recipient;
(iii) was in the recipient's possession, free of any obligation of confidence,
at the time of receipt of the information from the other party; (iv) was
independently developed by employees or agents of the recipient, without reverse
engineering barred by this Agreement or applicable law, and without reference to
any of the information disclosed in confidence; (v) is such that the recipient
is obligated to produce the information under court or government action after
all reasonable appeals have been exhausted, or (vi) is such that the recipient
is obligated to include such information in documents filed with the Securities
and Exchange Commission or other regulatory agency pursuant to applicable
securities laws. Notwithstanding the foregoing, IKANO may use the name of and
identify the Company as an IKANO client in advertising, publicity, or similar
materials distributed by IKANO or provided to prospective clients.
12. Arbitration. Any dispute arising out of or relating to this
Agreement shall be settled by binding arbitration, conducted on a confidential
basis, under the then current Commercial Arbitration Rules of the American
Arbitration Association (the "Association") strictly in accordance with the
terms of this Agreement and the substantive law of the State of Utah. The
arbitration shall be held at a mutually agreeable location in Salt Lake City,
Utah and conducted by one (1) arbitrator chosen from a list of attorneys or
judges who are members of the Association's commercial arbitration panel and are
knowledgeable about the software and electronic commerce industries within
thirty (30) days of the dispute. If the parties cannot within thirty (30) days
after the expiration of such thirty (30) day period, agree on the selection of
the arbitrator, the arbitrator will be chosen pursuant to the Commercial
Arbitration Rules of the Association. The costs of the arbitration, including
the fees to be paid to the arbitrator, shall be shared equally by the parties to
the dispute. The judgment upon the award rendered by the arbitrator may be
entered and enforced in any court of competent jurisdiction. Neither party shall
be precluded hereby from seeking equitable remedies in any court having
jurisdiction hereof including, but not limited to, temporary restraining orders
and preliminary injunctions, to protect its rights and interest, but such shall
not be sought as a means to avoid or stay arbitration. The arbitrator shall not
award any consequential, incidental punitive or exemplary damages. The parties
acknowledge that they have voluntarily agreed to arbitrate their dispute in
accordance with the foregoing and each party hereby irrevocably waives any
damages in excess of compensatory damages.
13. Notices. All demands, notices, and other communications to be given
hereunder, if any, shall be in writing and shall be sufficient for all purposes
if personally delivered, sent by facsimile, sent by nationally-recognized
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courier service, or if sent by registered or certified United States mail,
return receipt requested, postage prepaid, and address to the respective party
at the address set forth below(or at such other address as may from time to time
be designated by such party in writing as herein provided):
a. If to the Company: Nojata.com
Attn: Kurt Moore
849 W. Hillfield Rd, Ste 201
Layton, Utah 84041
Fax: 801-593-0515
b. If to IKANO: IKANO Communications, Inc.
Attention: Legal Department
265 East 100 South, Suite 245
Salt Lake City, Utah 84111
Fax: 801-924-0908
If personally delivered, notice under this Agreement shall be deemed to have
been given and received and shall be effective when personally delivered. Notice
by facsimile and nationally recognized courier service shall be deemed to have
been given when received. Notice by mail shall be deemed effective and complete
two (20 days after deposit in the United States mail.
14. Miscellaneous Provisions.
14.1 No Partnership or Third Party Beneficiaries. The relationship
between IKANO and the Company is that of independent contractors, and nothing in
this Agreement shall be construed to constitute the parties as partners, joint
venturers, Company-owners or otherwise as participants in a joint or common
undertaking between the parties hereto, and the parties expressly agree that no
such partnership is intended. Neither party shall have the right to bind or
obligate the other party. No person or entity other than the parties hereto
shall have, is deemed to have or claim any third party, direct or indirect
benefits, rights or claims to this Agreement or the matters described herein.
14.2 Assignment; Binding Agreement. Except as set forth herein, neither
party shall assign this Agreement, or any of the rights and obligations
hereunder, to any other person without the express written consent of the other
party, provided, however, that either party may assign its rights and
obligations to (i) a company, partnership or other business entity wholly
controlled or owned by the party; (ii) an affiliated entity in which the
assigning party holds or owns a controlling interest (defined as the power to
vote not less than fifty percent of such person's voting securities or ownership
interest); (iii) a purchaser of all or substantially all of the assets of the
assigning party's business; or (iv) a company into which the party's company is
merged or consolidated, provided that notice of any such assignment is promptly
given to the nonassigning party. This Agreement shall be binding upon and inure
to the benefit of the respective parties hereto, their heirs, legal
representatives, successors, and assigns.
14.3 Entire Agreement. This Agreement, together with the Statement of
Work and any other schedule, addendum, or exhibit expressly incorporated herein,
contains the entire agreement between the parties. No promise, representation,
warranty, or covenant not included in this Agreement has been or is relied upon
by either party. Any prior negotiations, correspondence, or understandings
related to the subject matter of this Agreement shall be deemed to be merged in
this Agreement and shall be of no further force or effect. Each party has relied
upon such party's own examination of the full Agreement and the provisions
thereof, and the representations and covenants expressly contained in this
Agreement itself. The failure or refusal of either party to inspect the
Agreement or other documents, or to obtain legal advice or other advice relevant
to this transaction, constitutes a waiver of any objection, contention, or claim
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that might have been based upon such reading, inspection, or advice. No
modification addendum or amendment of this Agreement shall be of any force or
effect unless in writing excluded by all of the parties.
14.4 Interpretation. Unless otherwise provided, all terms shall have
the meaning given them in the ordinary English usage and as customarily used.
Words in any gender shall include both other genders. Whenever the context
requires, the singular shall include the plural, the plural include the
singular, and the whole shall include any part thereof.
14.5 Invalidity. The invalidity or unenforceability of any particular
provision of this Agreement shall not affect the other provisions hereof, and
the Agreement shall be construed in all respects as if such invalid provisions
were omitted.
14.6 Headings. The paragraph and other headings contained in this
Agreement are for purposes of reference only and not limit, expand, or otherwise
affect the construction of any of the provisions or this Agreement.
14.7 Counterparts; Facsimile Signature. This Agreement may be executed
in any number of counterparts, each of which when executed and delivered shall
be deemed to be an original, and all of which shall together constitute one and
the same instrument. The parties hereto agree that transmission to the other
party of this Agreement with its facsimile signatures shall bind the party
transmitting this Agreement by facsimile in the same manner as if such party's
original signature had been delivered.
14.8 No Waiver. Acceptance by either party of any performance less than
required hereby shall not be deemed to be a waiver of such party to enforce all
of the terms and conditions hereof. No waiver of any such right hereunder shall
be binding unless reduced to writing and signed by the party to be charged
therewith.
14.9 Authorized Execution. The individuals signing below each
represents and warrants (i) that he or she is authorized to execute this
Agreement for and on behalf of the party for whom he or she is signing, (ii)
that such party shall be bound in all respects hereby, and (iii) that such
execution presents no conflict with any other agreements of such part.
14.10 Governing Law. This Agreement shall be governed by and construed
in accordance with the laws of the State of Utah as applied to agreements and
made and wholly performable in Utah between Utah residents.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the
day and year first above written.
IKANO COMMUNICATIONS, INC. NOJATA.COM
By /s/ JIM KNOX By /s/ KURT A. MOORE
------------------------------- ----------------------------------
Name Jim Knox Name Kurt A. Moore
Title VP Sales Title President
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SCHEDULE A
STATEMENT OF WORK
IKANO will provide the IP products and services as more particularly described
below.
IP Products and Services
Platform Service(s) to Branded Dial-Up Internet Access Business
be provided: Rules Platform (Billing/Provisioning)
Branded 24x7x365 Customer Service & Tech
Support GlobalSafe content filtering Branded
Instant Messenger (subject to additional
set-up fee)
Subscribed Accounts: Each Subscriber account will include the
following:
o Up to 10 standard e-mail accounts.
o 100 MB of personal web space per
Subscriber.
o 10 MB of WebMail message/storage
per Subscriber.
o Content filtering (optional).
Gold Master CD: To be provided by IKANO and branded with
elements provided by the Company. IKANO will
design CD jackets branded with elements
provided by the Company.
Sign-up CDs: All replication to be done by the Company.
All fulfillment functions are to be
performed by the Company.
Business Rules Platform (BRP): IKANO will provide configuration of a
standard Business Rules Platform to enable
the Company to provide for account
management and billing of the Services. A
web interface will be designed and provided
to the Company for access to available
standard online information. IKANO will
provide standard fields on the sign-up pages
for Internet access accounts. IKANO can
create additional fields on the signup form
at an additional programming cost. IKANO
will also provide a Mission Control
interface. Mission Control is a single login
solution, which provides the Company a
management interface to the Services and
other IKANO information. Mission Control may
not e available at the launch of the
Services but will be made available to the
Company when it is available to IKANO's
customers generally.
Examples of Standard Reports provided by the
Business Rules Platform include plan status
reports (open/closed accounts, suspended
accounts), by area code reports, failed
credit card report and standard accounting
reports. These reports will be reviewed
during Business Rules Platform training. Any
reports beyond the standard reports are
considered custom and the Company must pay
for any development of custom reports.
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Email: Each Subscriber account will include up to
ten email accounts. IKANO will manage and
support these e-mail accounts with 10 MB of
storage space per account. IKANO will
provide for management of e-mail accounts to
ensure that the storage capacity is no
exceeded and e-mail service to the Company
and its Subscribers is not impaired. In
connection with this e-mail management and
to protect the quality of e-mail service,
IKANO may delete aged or excessive e-mails.
End-User Personal Web Space: IKANO will provide up to 100 MB of personal
website for each Subscriber account.
Dial-up Network Access: The Services include the standard IKANO
Network to support nationwide dial up access
by Subscribers. The IKANO Standard Network
includes dial-up access the United States,
Canada, United Kingdom, France, Italy,
Spain, Germany, Belgium, Hong Kong, and
Tokyo.
The Company acknowledges that IKANO is
aggregating the dial-up Internet networks of
third party providers and that continued
support of any particular point of presence
(POP) is dependent on the continued
availability and support of such location by
a third party provider. In the event that
IKANO is unable to identify a third party
provider, or is otherwise unable to identify
an alternative, in any area that is no
longer supported on economic terms
comparable to what is provided hereunder,
the Company agrees that IKANO may increase
its price or may terminate service to such
identified POP location.
Customer Support: 24x7x365 branded customer support provided
by IKANO; toll free number for Company
customers provided by IKANO as part of
customer support function. The Company
acknowledges that IKANO's ability to deliver
customer support in accordance with this
Statement of Work is dependent on the
forecasts provided by the Company.
GlobalSafe Content Filtering: Server side content filtering is included
with dial-up services. The GlobalSafe filter
causes a Subscriber's browser to utilize a
proxy server when connected to the Internet.
Access to content filtering is password
protected.
Implementation Schedule
Target Launch Date: IKANO requires at least forty-five (45) days
following execution of Agreement and payment
of setup fees to implement the Services,
subject to continued cooperation and process
approvals by the Company.
Branding of Services/Content
Access Branding: The Company owns its own domain.
Start-up Page: Provided by Company.
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Content Objects Provided ISP Information Pages to be integrated into
by IKANO: Company website (Customer Service Info,
Subscriber Online Sign-Up Pages, Customer
Use Agreement, Network Status, Dial-up
Locations, Ask The Expert).
Content to be Provided by: Company will provide all content
incorporated into its portal.
Branding Elements: All branding elements are in final form and
will be provided by the Company to IKANO.
Billing and Fees
Subscriber Billing: IKANO will bill Subscribers through the
Business Rules Platform.
Credit Card Processing Fees: The Company pays all credit card processing
fees. IKANO will batch process credit card
authorizations nightly. Real-time credit
card activation and authorization is not
available except for additional
consideration for al programming.
Subscriber Proceeds All proceeds will be deposited into the
Deposited: Company's merchant account.
Custom Report Generation: Standard reporting is included as part of
the Business Rules Platform. Any reports
beyond this are considered custom and must
be paid for by the Company.
One Time Set-up Fee: $2,000--for branded dial-up Internet access
platform $2,500--for Instant Messenger
Recurring Monthly Subscriber The following recurring Subscriber fees are
Fees: payable for each Subscriber account. These
accounts do not provide for fixed
connectivity and additional $1.00 per hour
charge may be made by IKANO in the event an
individual Subscriber's usage exceeds one
hundred fifty (150) hours.
Recurring Subscriber fees are based on
volume, as set forth in the schedule
below:
0--2,500........................$10.60
2,501--5,000....................$10.30
5,001--10,000...................$10.15
10,000+.........................$10.07
Minimum Commitment
Subscriber: Company will guarantee a minimum adoption of
Subscribers as set forth in the following.
If any minimum commitment is not met the
Company will be charged for the difference
between the commitment and the actual
amount.
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Month Subscribers
December 2001..................50
January 2002...................75
February 2002..................125
March 2002.....................225
April 2002.....................325
May 2002.......................425
June 2002......................575
July 2002......................725
August 2002....................875
September 2002.................1025
October 2002...................1175
November 2002..................1325
Additional Fees
Fees payable on an as
required Basis: An SSL key will be required for a secure
sign up form. The Company will need to
provide a business license or articles of
incorporation to IKANO. IKANO will procure
the SSL key. The annual cost is $150 for
each SSL key.
$150 per hour for Website design and
programming services. $150 per hour for
custom programming services. There may be
additional costs for customized services,
such as SQL programming, streaming media,
XML programming, or other solutions.
Domain Registration: $30.00 per domain for
two years.
Domain Modification: $150.00
Domain Hosting: $5.00 per month for hosting
of a top-level domain. $1.00 per month per
e-mail account for optional anti-spam and
anti-virus filtering (Mail Rover).
Spamming penalties attributable to
Subscribers will be charged to the Company
to pass through to Subscribers. The first
offense for a Subscriber is $100. The second
offense is $500. The third offense is $500
and automatic termination of the Subscriber
account.
DSL Services
DSL Services: The Company may offer and sell DSL services
to its Subscribers on the following terms in
those areas where it is available and
supported by IKANO.
Description of DSL Internet A DSL Circuit is a digital data
Access: telecommunications service that consists of
one private virtual circuit between a
Subscriber's premise an IKANO that utilizes
Digital Subscriber Line ("DSL") technology.
A DSL Circuit provides upstream and
downstream maximum throughput rates that
typically range from up to 128 Kbps to 1.1
Mbps. The maximum throughput rate depends on
such factors as the distance of the
Subscriber's premise from a Central Office
or DSLAM and the quality of the copper
telephone line serving the premise.
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Provision of a DSL Circuit includes Internet
access service provided by IKANO. A DSL
Circuit does not include email, newsgroup
server access, website hosting, or any other
IP services.
IKANO's Role as Aggregator: The nature of DSL technology is such that no
one party provides all of the
infrastructure, services, and support
related to DSL Internet access.
Multiple parties, including ILECs, CLECs,
IKANO, and the Company must work together
and cooperate in order to effectively
provide DSL Internet access to the Company's
Subscribers. IKANO has made and has
continued to make significant investments in
infrastructure, technology, services, etc.,
to enable it to serve as an aggregator of
DSL services within the United States, IKANO
aggregates and provisions third party DSL
services. IKANO also provides related IP
based services available to its business
customers.
DSL Circuits are not available in all parts
of the United States, and even where DSL
circuits are available within the United
States they may not be available in the
entire geographic area when IKANO may
provide such services. The availability of
DSL Circuits may be limited based on
location of the individual Subscriber, the
availability of DSL Circuits from third
party providers, and other factors. IKANO
residential DSL Services will be installed
at residential addresses only.
IKANO will be responsible for DSL loop
qualification (loop quals) and order
processing for the Company's Subscribers.
IKANO will make a toll free number available
to the Company's Subscribers for requesting
loop quals, evaluating DSL service options,
placing orders, etc. IKANO will provision
the services and, once they are activated,
will monitor the DSL Circuit through its
network operations center.
Service Levels: It has not been customary in the industry
for DSL Providers to provide service level
agreements in connection with the DSL
services they offer. The Company
acknowledges that IKANO does not own or
operate a significant portion of the network
equipment involved with DSL Internet access
and thus cannot provide a higher level of
service than is provided by the DSL
Providers for which it aggregates services.
Installation and
Recurring Costs: Prices for DSL Circuits include installation
and are dependent on the provider, local
market conditions, any applicable
promotions, and other factors beyond the
price of IKANO. The monthly service fees are
based on the type, provider and location of
the DSL Circuit and shall be set forth in a
schedule delivered by IKANO to the Company,
as the same may be amended or supplemented
from time to time. All DSL prices and
availability are subject to change at any
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time and are beyond IKANO's reasonable
control, as they are based on prices from
vendors, which are subject to change.
IKANO will invoice the Company during the
first 5 days of each month; payments are due
10 days after the invoice date.
Minimum Credit Term: The minimum initial term for each Subscriber
DSL Circuit shall be one year from the date
of installation of the DSL Circuit,
continuing ton a month-to-month basis
thereafter (or such other term as may
specifically be provided by the DSL Circuit
vendor) (the "Circuit Term"). In the event a
Subscriber terminates service prior to the
expiration of the Circuit Term, the Company
will be required to pay IKANO installation
and equipment charges for such terminated
account, as such charges are imposed by the
actual provider of the DSL Circuit. The
Company will also be responsible for paying
any early termination fees, which range in
amount, typically between one month of
service, $300, or the remaining Circuit Term
multiplied by the monthly cost of the DSL
Circuit. It is anticipated that these costs
will be passed on to Subscribers through the
Subscriber Agreement.
Underlying Subscriber Most DSL Providers will require Subscribers
Agreements: to enter into agreements with terms of 1 or
more years in order to receive DSL service.
These agreements will typically require
Subscribers to pay significant amounts
upfront for installation, new equipment,
cabling, and other such similar costs. In
addition these agreements will typically
require that Subscribers pay a significant
penalty if they cancel service prior to the
expiration of the term of the agreement. The
Company is responsible for paying this
amount and must take steps it deems
appropriate to pass the cost on to the
Subscriber so that the Subscriber is
ultimately liable.
Marketing: The Company will use its best efforts to
market and sell DSL services to its
customers. All expenses incurred by the
Company in connection with its effort to
obtain and retain Subscribers will be the
sole responsibility of the Company.
Termination of the Agreement: In the event the Company is in default under
the terms of the Agreement and IKANO
determines to terminate the Agreement, IKANO
will immediately contact the Company's
Subscribers directly to provide the option
to (i) switch their Service directly to and
have payments received directly by IKANO or
(ii) have their Subscriber DSL Circuit
immediately terminated. Neither of these
options will relieve the Company of any
monies due by IKANO.
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