PACNET RESELLER AGREEMENT
THIS AGREEMENT is made and entered into this 30th day of May, 1997, by and
between PacNet Inc., a Washington corporation with its principal office located
at 1111 Third Avenue, Seattle, Washington 98101 (hereinafter "CARRIER"), and
Rocky Mountain Internet, Inc., a Delaware corporation, with its principal office
located at 1099 Eighteenth Street, Suite 3000, Denver, Colorado 80202
(hereinafter "RESELLER") for the purpose of establishing a sales representation
relationship between them.
WHEREAS, CARRIER is in the business of providing data communications services in
certain geographic market areas; and
WHEREAS, RESELLER has applied to CARRIER for the right to market, sell, and
distribute CARRIER's services to the general public; and
WHEREAS, both CARRIER and RESELLER recognize the compatible nature of their
individual goals in expanding competition in the services offered by CARRIER as
well as any services to be offered by RESELLER and the benefits which will
accrue to the public through the Parties' cooperation; and
WHEREAS, CARRIER has agreed to engage RESELLER pursuant to the terms and
conditions set forth herein.
NOW, THEREFORE, in consideration of the mutual promises, covenants and
warranties which appear below, and intending to be legally bound thereby, the
parties hereby agree as follows:
ARTICLE I
DEFINITIONS
Whenever used in this Agreement, as hereinafter defined, the following terms
shall have the respective meanings given to them in this Article I, unless the
context requires otherwise. Said terms also shall have the said meanings when
used in any exhibit, schedule, attachment or addendum hereto or in any document
made or otherwise delivered pursuant to this Agreement, unless the context
otherwise requires. Each said term defined in this Article I shall be deemed to
refer to the singular, plural, masculine, feminine or neuter as the context
required.
1.1 "AGREEMENT" means this Agreement, as originally executed and as the
same may be amended, modified and supplemented from time to time by
exhibits, schedules, attachments or addendum executed in accordance
herewith.
1.2 "ASSIGNMENT" means a sale, exchange, transfer or other disposition of
all or any portion of Party's rights and obligations hereunder.
1.3 "AFFILIATE" means any person who directly or indirectly, through one
or more intermediaries, controls, is controlled by or is under common
control with such specific
person. A person shall be deemed to control another person when such
controlling person has the power, directly or indirectly to cause the
direction of the management or policies of such person, whether
through the ownership of voting securities, by contact, agency or
otherwise. This term shall also include any person who, directly or
indirectly, through one or more intermediaries, has the contractual
right or option to acquire or vote more than ten percent of the voting
interest of a specific person.
1.4 "BUSINESS DAY" means a day other than Saturdays, Sundays and legal
holidays.
1.5 "CUSTOMER" means an end-user of CARRIER's Services.
1.6 "EFFECTIVE DATE" means the date of last necessary signature hereto.
1.7 "FCC" refers to the Federal Communications Commission.
1.8 "FINAL ORDER" means an action by any applicable federal or state
agency or court as to which (i) no request for stay by the federal
or state agency or court of the action is pending, no such stay is in
effect, and if any deadline for filing any such request is designated
by statute or regulation, it has passed; (ii) no petition for
rehearing or reconsideration of the action is pending and the item for
filing any such petition has passed; (iii) the federal or state agency
or court does not have the action under reconsideration on its own
motion and the time for such reconsideration has passed, and (iv) no
appeal to a court, or request for stay by a court, or the federal or
state agency's or court's action is pending or in effect, and if any
deadlines for filing such appeal or request is designated by statute
or rule, it has passed.
1.9 "HOST CONNECTION" refers to connections from CARRIER network through
to the network of RESELLER.
1.10 "PARTY" refers to one or both of the parties to this Agreement,
CARRIER or RESELLER, as the context indicates.
1.11 "PERSON" means any general partnership, limited partnership,
corporation, joint venue, trust, business trust, governmental agency,
cooperative, association, individual or other entity, and the heirs,
executors, administrators, legal representatives, successors and
assigns of such person as the context may require.
1.12 "PROPRIETARY INFORMATION" means information relating to the present or
future business activities and operations of CARRIER, RESELLER or
their respective subsidiaries, Affiliates, clients and consultants
which is marked as "Proprietary" or "Confidential". Proprietary
Information shall include, but not be limited to, all technical,
marketing and financial information relating thereto, any information
relating to other pricing methods, processes, financial data, lists,
apparatus, statistics, programs, research, development or related
information, or the results of the provision of Services performed
by RESELLER under this Agreement. Proprietary Information needs to
be also marked as "Proprietary
or Confidential" information.
1.13 "SERVICES" OR "CARRIER SERVICES" refers to the data communications
services delineated in Schedule A hereto, to be resold hereunder by
RESELLER to the general public in certain geographic market areas.
ARTICLE II
UNDERTAKING OF THE PARTIES
2.1 SCOPE. RESELLER and CARRIER wish to set forth a standard of general
terms and conditions which will facilitate RESELLER's ability to
market, sell and distribute the Services within certain geographic
market areas.
2.2 FORMATION. CARRIER hereby agrees to provide RESELLER, and RESELLER
hereby agrees to accept use of certain CARRIER Services. The Services
are as set forth in Schedule A hereto and in any applicable tariffs.
The Schedule may be revised from time to time by CARRIER in accordance
with generally applicable changes in CARRIER's service offerings.
Services are provided pursuant to the PacNet Services Agreement to be
entered into by the parties, the terms of which are incorporated into
this Agreement by reference.
2.3 AUTHORITY OF RESELLER. CARRIER hereby grants to RESELLER the
non-exclusive right to solicit orders from and enter into contracts
with Customers for the Services. This Agreement constitutes RESELLER
as a nonexclusive independent contractor only and not as CARRIER's
general or specific agent and does not create a joint venture or
apply to confer any status, power or authority upon RESELLER other
than expressly set forth herein. The scope of the RESELLER's
authority is specifically limited to the minimum authority necessary
to perform the duties accepted pursuant to this Agreement and
RESELLER shall, to the maximum extent not inconsistent with the
provision hereof, control the means, details, manner and method of
allotment associated therewith. RESELLER shall make no
representations as to the policies and procedures of CARRIER other
than as specifically authorized by CARRIER and shall be liable for
any misrepresentation made by RESELLER with regard to CARRIER's
Services. RESELLER shall have no right to enter into a contract on
CARRIER's account or to bind CARRIER in any manner.
2.4 RESELLER'S AUTHORIZATIONS. RESELLER shall secure and maintain at its
sole expense all licenses and permits required by federal, state or
municipal law or regulation for it and its employees, agents or other
representatives to ensure RESELLER's lawful performance of this
Agreement.
ARTICLE III
PAYMENT AND COLLECTION TERMS
3.1 RATES FOR SERVICES. Subject to the following Sections of this
Article III, RESELLER will
be charged pursuant to Schedule B hereto for Frame Relay Services and
pursuant to Schedule C hereto for Private Line Services and pursuant
to Schedule D hereto for Internet Services. Schedules B, C & D may
be changed from time to time by CARRIER in accordance with these
changes in CARRIER's applicable tariffs, if any, or generally
applicable schedule of rates. In the event that the underlying
carrier or provider increases its rates for services used by CARRIER
in providing Service hereunder, CARRIER shall have the option to
increase rates to RESELLER upon 30 days prior written notice.
3.2 MINIMUM COMMITMENT PERIODS. RESELLER understands and agrees that
the rates for Service are based upon an expected usage level and
that, absent this minimum usage CARRIER would be unable to offer the
Services at the rates given to RESELLER herein. In view thereof,
RESELLER shall have certain Minimum Commitment Levels for Service
hereunder. RESELLER shall have a six (6) month period, commencing on
the Effective Date of this Agreement, during which no Minimum
Commitment Level shall apply. Commencing on the seventh (7th) month
after the Effective Date of this Agreement and continuing thereafter,
RESELLER's total monthly usage revenue attributable to its Customer
accounts shall equal or exceed a Minimum Commitment Level of $5,000
per month. CARRIER will have at its sole option the right to
terminate this Agreement under section 4.4 and 4.5.1 of this Agreement
in the Minimum Commitment Level is not met as specified herein.
3.3 LATE PAYMENT, BILLING DISPUTES. Payment and billing disputes shall be
tendered in accordance with the provisions of the PacNet Services
Agreement to be entered into between the CARRIER and the RESELLER.
3.4 CREDITWORTHINESS. In addition to any other remedies available to
CARRIER, CARRIER may elect with ten (10) days prior written notice,
in its sole discretion, to cause start of service for Services
applicable to a Customer to be withheld or decline to accept a
Customer if there is a material change in RESELLER's creditworthiness
or CARRIER may condition the provision of Services on assurance of
payment by RESELLER or Customer which shall take the form of a deposit
or similar assurance as specified by CARRIER.
3.5 SALES FORECAST. RESELLER will forecast quarterly sales objectives.
These objectives will not be considered by CARRIER as RESELLER's
contractual agreements.
ARTICLE IV
TERMS OF AGREEMENT
4.1 EFFECTIVE DATE; RENEWAL. This Agreement shall become effective upon
the Effective Date, and shall remain in effect for a period of three
(3) years unless otherwise terminated in accordance herewith. This
Agreement shall be automatically renewed thereafter for successive
periods of one (1) year or as otherwise agreed by the Parties. This
Agreement thereupon shall be terminated by either Party at the end
of the initial or then current renewal term upon written notice
ninety (90) days prior to the end of the then current
term.
4.2 INSOLVENCY. Either Party may terminate this Agreement upon ninety
(90) days written notice to the other Party in the event of an
admission by the other Party of an inability to pay its debts, the
entering in to by the other Party of a composition or other
arrangement with its creditors, the appointment of a trustee or
receiver, with or without consent, for the other Party of all or any
substantial portion of its property, or the filing of a petition for
relief by or against the other Party under the Bankruptcy Code of
any similar federal or state statute (including moratorium laws);
provided, however, that in the case of an involuntary petition, there
shall be no right of cancellation hereunder unless such petition
remains undismissed sixty (60) days after the filing thereof.
4.3 LOSS OR SUSPENSION OF OPERATING AUTHORITY. This Agreement shall
terminate automatically and without liability or further obligation
on the part of either party to the other if, by Final Order, CARRIER
loses its authority to provide the Services as contemplated
hereunder. If such authority is suspended, this Agreement shall not
terminate, but shall be suspended until such time as CARRIER regains
such authority. If such authority is lost or suspended with regard
to a portion of the Services or service areas, then this Agreement
shall terminate automatically (in the case of lost authority) or be
suspended (in the case of suspended authority) with regard only to the
Services or service area concerned. The provisions of this Section
4.3 shall not be construed to affect any liabilities which arise
prior to the termination or suspension hereunder, or which may later
arise from the Parties' activities during the term of this Agreement.
4.4 EVENTS OF DEFAULT. Aside from any other events of default set forth
in this Agreement, the following shall constitute an event of default
hereunder: (i) the failure by RESELLER to make any payments due to
CARRIER hereunder and continue failure to cure such default within a
period of ten (10) days after receiving written notice of such fault;
(ii) the violation by either Party hereto of any material term or
provision of this Agreement or the failure of either party hereto to
perform any of its material obligations hereunder and continued
failure to cure such default within thirty (30) days after receiving
written notice of such default; (iii) the misapplication by RESELLER
of CARRIER's services and continued failure to cure such default
within thirty (30) days after receiving written notice of such
default; (iv) a consistently poor payment record or other evidence of
lack of financial ability to perform and continued failure to cure
such default within thirty (30) days after receiving written notice
of such default; (v) any action that violates applicable federal or
state law or regulation or other unlawful act and continued failure
to cure such default within thirty (30) days after receiving written
notice of such default; (vi) the failure of RESELLER to abide by the
terms of Sections 3.2, 3.3, 5.1, 5.2 and 7.4 hereof and continued
failure to cure such default within thirty (30) days after receiving
written notice of such default; or (vii) the willful or intentional
violation by either Party hereto of any term or provision of this
Agreement.
4.5 REMEDIES.
4.5.1 TERMINATION. Upon the occurrence of an event of default, as
defined in Section 4.4, the non-defaulting Party shall have the
right to terminate this Agreement upon thirty (30) days written
notice.
4.5.2 CUSTOMER CONTRACTS. If RESELLER defaults in its performance
hereunder, as defined in Section 4.4, then CARRIER may, at its
option, and as consideration for CARRIER capital expenditures
in providing Service to RESELLER's Customers hereunder, enter
into direct contracts with Customers obtained hereunder and
bill such Customers directly, with no compensation being due
to RESELLER therefor.
4.5.3 SPECIFIC PERFORMANCE. CARRIER shall have the right to enforce
the provisions of this Article IV by obtaining an injunction or
specific performance from any court of competent jurisdiction.
4.5.4. ALTERNATIVE REMEDIES. The remedies set forth herein are
cumulative and in addition to, and not in limitation of, other
remedies available at law or in equity. None of the remedies
specified in this Article IV for any default of breach of this
Agreement shall be exclusive.
ARTICLE V
CORPORATE IDENTITY
5.1 TRADE NAMES AND TRADEMARKS. All trade names, trademarks and service
marks owned or employed by CARRIER, RESELLER or their respective
subsidiaries or Affiliates, shall remain the sole and exclusive
property of such Party, subsidiary or Affiliate, and such trade names,
trademarks and service marks shall not be used by the other Party
without the prior written consent of such Party, subsidiary or
Affiliate. The breaching Party shall immediately discontinue any use
of such marks and names upon Notice of such breach.
5.2 ADVERTISING. CARRIER shall establish standards for all advertising,
promotional and customer training materials used or distributed by
RESELLER which relate to CARRIER's services. RESELLER may refer to
itself as an authorized reseller of CARRIER Services whenever it
refers to the services in promotional, advertising, or other
materials. In addition, RESELLER shall provide to CARRIER for its
prior review and written approval, all promotional, advertising, or
other materials or activity using or displaying CARRIER's name,
Services or referring to RESELLER as an authorized reseller of
CARRIER services. Such review and standards will be limited to
factual matters, pertain to services furnished by CARRIER and use of
CARRIER's marks and name. RESELLER agrees to change or correct, at
RESELLER's expense, any such material or activity which CARRIER, in
its sole judgment, determines to be inaccurate, misleading or
otherwise objectionable.
ARTICLE VI
OPERATING DUTIES OF THE PARTIES
6.1 CUSTOMER SUBSCRIPTION AND SERVICE. RESELLER shall provide Customers
with applications for Services using pre-printed forms provided or
approved by the CARRIER. Such applications shall then be forwarded
by RESELLER to CARRIER within no more than three (3) business days
after execution. RESELLER agrees to comply with all of CARRIER's
customer service procedures regarding CARRIER's Services hereunder.
CARRIER reserves the right in its full discretion to decline to accept
a Customer contract solicited by RESELLER pursuant to its generally
applicable business criteria.
6.2 RESELLER'S REPRESENTATION; CONTRACTS. RESELLER shall make no
representations, warranties, promises, understandings or agreements
concerning CARRIER and CARRIER's Services not approved in advance by
CARRIER. RESELLER may represent itself as a RESELLER of CARRIER's
Services.
6.3 CONDUCT OF RESELLER.
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6.4 COLLECTION OF CHARGES.
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6.5 RESELLER'S RESPONSIBILITIES.
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6.6 CARRIER RESPONSIBILITIES.
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ARTICLE VII
LIABILITY AND INDEMNIFICATION
7.1 RESELLER'S EMPLOYEES. All persons employed by RESELLER to perform
RESELLER's duties under this Agreement are employees and agents of
RESELLER. RESELLER shall be solely responsible for the acts and
omissions of its employees and agents and shall have sole
responsibility for their supervision, direction and control. RESELLER
shall comply with all applicable laws regarding withholding and
payment of all income taxes, social security taxes, unemployment
insurance and worker's compensation and disability benefits as well
as those regarding equal employment opportunities and safety of the
workplace insofar as such concerns the subject matter hereof.
7.2 RIGHT TO CONDUCT OTHER BUSINESS. Each Party hereto understands and
acknowledges
that this Agreement is non-exclusive and that the Parties, their
Affiliates, their representatives and other entities with whom they
may contact may compete with the other Party hereto in the business
subject in CARRIER's geographic market areas. This Agreement shall
not in any way limit CARRIER's power and right to contract with other
Persons concerning the subject matter hereof on such terms as CARRIER
sees fit even though such Persons, as a result, compete with
RESELLER. This Agreement also shall not in any way limit RESELLER's
power and right to contract with other Persons concerning the subject
matter hereof, either during the term hereof or thereafter, on such
terms as RESELLER sees fit even though such persons, as a result,
compete with CARRIER.
7.3 INSURANCE. RESELLER shall, at its sole expense, be insured at all
times during the term of this Agreement, and any extension of renewal
thereof, under a comprehensive liability insurance policy against
claims for bodily and personal injury, death and property damage
caused by or occurring in conjunction with RESELLER's activities
hereunder. Such insurance coverage shall be maintained under one
or more policies of insurance issued by insurance companies qualified
to do business in the states where RESELLER performs its duties
hereunder, and shall be in amounts not less than one million dollars
($1,000,000) per occurrence for bodily and personal injury and death,
five hundred thousand dollars ($500,000) per occurrence for
property damage and five hundred thousand dollars ($500,000) per
occurrence for general liability arising out of RESELLER's conduct
hereunder. RESELLER shall provide CARRIER with copies of said
policies upon written notice and shall provide for not less than
thirty (30) days prior written notice of any modification,
cancellation, or non-renewal thereof. RESELLER's insurance coverage
hereunder is only for the purpose of assuring CARRIER that Customers
being solicited for CARRIER's Services shall receive good service.
It does not and shall not be construed to give CARRIER any control
over or interest in any enterprise of RESELLER other than the
solicitation of Customers for CARRIER's Services.
7.4 INDEMNIFICATION. Notwithstanding any of the provisions of this
Agreement which may be construed to the contrary, RESELLER and
CARRIER will indemnify each other and their respective directors,
officers, employees, agents and representatives ("Indemnified
Parties") and save them harmless from and against any and all
claims, actions, damages, liabilities and expenses (collectively,
"Losses") occasioned by any willful or negligent act or omission of
the other Party, its directors, officers, employees, agents or
representatives ("Indemnifying Party"), relating to the performance
of its obligations hereunder. If any Indemnified Party shall,
without fault on its part, be made a party to any litigation
commenced by or against such Indemnified Party, then Indemnifying
Party shall protect and hold such Indemnified Party harmless, and
shall pay all costs, expenses, losses and reasonable attorney's fees
incurred or paid by such Indemnified Party in connection with said
litigation.
7.5 QUALITY OF SERVICE. CARRIER will make every reasonable effort to
provide continuous and uninterrupted service hereunder in
accordance with generally applicable industry
standards. EXCEPT FOR ANY EXPRESS WARRANTIES STATED IN THIS
AGREEMENT, CARRIER DISCLAIMS ALL WARRANTIES, INCLUDING, WITHOUT
LIMITATION, ALL IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS AND
OF FITNESS FOR A PARTICULAR PURPOSE, WHETHER SUCH WARRANTIES ARE MADE
BEFORE OR AFTER THE EXECUTION HEREOF. THE STATED WARRANTIES ARE IN
LIEU OF ALL OBLIGATIONS OR LIABILITIES ON THE PART OF THE CARRIER FOR
DAMAGES INCLUDING, BUT NOT LIMITED TO SPECIAL, INDIRECT, INCIDENTAL,
CONSEQUENTIAL OR PUNITIVE DAMAGES ARISING OUT OF OR IN CONNECTION
WITH THE USE OR PERFORMANCE OF CARRIER'S SERVICES. IT IS EXPRESSLY
UNDERSTOOD THAT THE SOLE REMEDY OF RESELLER FOR BREACH OF THIS
AGREEMENT BY CARRIER OR FOR ANY DAMAGE TO RESELLER OR OTHER PERSON
CLAIMED TO HAVE RESULTED FROM RESELLER'S RESALE HEREUNDER OR FROM THE
USE OF CARRIER'S SERVICES IS CREDIT FOR NETWORK OUTAGES AS SET FORTH
IN THE ASSOCIATED PACENET SERVICES AGREEMENT.
7.6 TAXES. RESELLER shall be solely responsible to pay all applicable
local, state and federal taxes, including sales and uses taxes,
excise, access, bypass or other local, state and federal taxes or
charges imposed based upon the provision, sales or use of the
Services provided hereunder. RESELLER also shall pay any applicable
gross receipts taxes with regard to said Services, including
surcharges. Such taxes will be billed by CARRIER to RESELLER and
will be separately stated on RESELLER's invoice, provided, however,
that CARRIER will not bill to RESELLER such taxes as may be exempted
by a tax exemption or resale certificate for operations in any state
for which RESELLER obtains such a certificate.
ARTICLE VIII
CONFIDENTIALITY
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ARTICLE IX
MISCELLANEOUS
9.1 FORCE MAJEURE. Neither Party shall be liable to the other Party for
any delay or failure to perform hereunder due to causes beyond the
control of said Party, including, but not limited to: acts of God;
acts of the public enemy; acts of the United States of America, or
any state, territory or political subdivision thereof or of the
District of Columbia; fires; floods; epidemics; quarantine
restrictions; or strikes or freight embargoes.
9.1.1 Notwithstanding the foregoing provisions, in every case the
delay or failure to perform must be beyond the control and
without the fault or negligence of the Party claiming excusable
delay.
9.1.2 Performance times under this Agreement shall be considered
extended for a period of time equivalent to the time lost
because of any delay or failure to perform which is excusable
hereunder; provided however, that is any such delay or failure
shall, in the aggregate, last for a period of more than
thirty (30) days, the Party not relying on the excusable delay
or failure, at it option, may terminate this Agreement.
9.2 SUCCESSION. This Agreement shall be binding upon and inure to the
benefit of the Parties and their respective heirs, executors,
administrators, legal representatives, successors, and assigns,
provided, however, that RESELLER may not assign its rights, nor may
it delegate its duties hereunder, except with CARRIER's prior written
consent. Any such attempted transfer shall be void and shall
constitute a breach of this Agreement.
9.3 NOTICES. All notices pursuant to this Agreement shall be in writing
and shall be sent by overnight mail.
If to CARRIER, to:
PacNet, Inc.
Carrier Sales
1111 3rd Avenue
Suite 1600
Seattle, WA 98101
If to RESELLER, to:
Rocky Mountain Internet, Inc.
Chief Financial Officer
1099 Eighteenth Street
Suite 3000
Denver, CO 80202
9.4 ENTIRE AGREEMENT. This Agreement represents the entire agreement and
understanding between CARRIER and RESELLER as to the subject matter
hereof. No waiver, alteration, or modification of any of the
provisions of this Agreement shall be binding unless in writing and
signed by duly authorized representative of the Party against which
enforcement of such waiver, alteration or modification is sought.
9.5 SAVINGS CLAUSE. If any term, covenant or condition of circumstance
shall to any extent be invalid or unenforceable, the remainder of
this Agreement, or the application of such term, covenant or condition
to person or circumstances other than those as to which it is held
invalid or unenforceable, shall not be affected thereby and each term,
covenant or condition of the Agreement shall be valid and be enforced
to the fullest extent permitted by law. All obligations and duties
which by their nature extend beyond the expiration or termination of
this Agreement shall survive and remain in effect beyond any
expiration or termination.
9.6 GOVERNING LAW. This Agreement shall be construed in accordance with
and governed by the laws of the State of Washington.
9.7 ARBITRATION. Any dispute between CARRIER and RESELLER arising under
this Agreement shall be subject to arbitration in the City of Seattle,
State of Washington, pursuant to the rules then in effect of the
American Arbitration Association (or any other place or under any form
of arbitration mutually acceptable to the Parties). The decision
rendered by the arbitrator shall be final and conclusive upon the
Parties and a judgment thereon may be entered in the highest court of
the forum having jurisdiction of the matter.
9.8 ATTORNEY FEES AND COSTS. In the event of any legal dispute between
the Parties relating to this Agreement, including arbitration
provided for in Section 9.7, the most prevailing party shall be
entitled to all costs and legal expenses, including, but not limited
to reasonable, ordinary and necessary attorney fees, accounting fees,
court costs, expert witness expenses and investigation expenses.
9.9 REGULATORY APPROVAL. This Agreement shall be subject to and governed
by any applicable state and federal regulatory agencies having
jurisdiction over the subject matter hereof. Should any approval or
authority be required for any acts, duties or obligations to be
performed hereunder, the Parties will cooperate in securing the same.
9.10 AUTHORITY TO CONTRACT. RESELLER warrants that it has full authority
to enter into this Agreement and that such action has been duly
authorized in accordance with RESELLER's articles of incorporation,
bylaws or other applicable organizational documents and procedures.
9.11 CAPTIONS. Captions contained herein are inserted only as a matter of
convenience and in no way define, limit or extend the scope or intent
of any provision hereof and have been duly authorized to do so in
accordance with RESELLER's corporate or other organizational documents
and procedures.
9.12 INDEPENDENT BUSINESS JUDGMENT. The Parties hereby acknowledge and
agree that RESELLER is an independent business sufficiently
sophisticated to exercise and exercising its own business judgment.
The Parties hereby further acknowledge and agree that CARRIER has made
no recommendations or representations regarding any aspect of
RESELLER's business, including, but not limited to, any
representations with regard to RESELLER's profits therefrom.
9.13 WAIVER. Failure or delay on the part of either Party to exercise any
right, power or privilege hereunder shall not operate as a waiver of
any other obligation. Waiver by CARRIER or RESELLER of a breach of
any provision of this Agreement by the other party shall not operate
or be construed as a waiver of any subsequent breach by the other
Party.
9.14 COUNTERPARTS. This Agreement may be executed in counterparts, each
of which shall, for all purposes, be deemed to be an original and
all of which together shall be deemed the same agreement.
9.15 OPPORTUNITY TO PARTICIPATE IN DRAFTING. The Parties have been
furnished an equal opportunity to participate in the drafting of
this Agreement and any exhibits or schedules attached hereto. No
ambiguity shall be construed against any Party based upon a claim
that that Party drafted the applicable language.
9.16 AUTHORITY TO EXECUTE. Each person executing this Agreement on behalf
of another person or organization represents and warrants to the other
Party that he or she is fully authorized to execute and deliver this
Agreement on behalf of such person or organization.
9.17 NON-SOLICITATIONS. During the term of this Agreement and for a period
of one (1) year thereafter, CARRIER agrees not to aggressively solicit
the customers of RESELLER, with any products or services that directly
compete with those the RESELLER is offering the customers.
IN WITNESS WHEREOF, the Parties have caused this Agreement to be executed by
their duly authorized officers as of the day and year first above written.
CARRIER: PacNet, Inc. RESELLER: Rocky Mountain Internet, Inc.
By: /s/ Stephen L. Sperry By: /s/ Kevin R. Loud
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Name: Stephen L. Sperry Name Kevin R. Loud
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Title: Director Title: Vice President-Business Development
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Date: 6/13/97 Date: June 2, 1997
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