SALES AGREEMENT
This Agreement ("Agreement"), effective 3/4/98, is between PACIFIC BELL INTERNET
SERVICES, a California corporation ("PBI") and CNM NETWORK ("CUSTOMER"). This
Agreement sets forth the terms and conditions under which PBI shall provide
Internet Access Services (hereinafter "Services") to Customer.
SECTION I
1. TERMS OF THE SERVICE
A. Service will commence on the Service Activation Date and will continue
for the term specified in the applicable Sale Order. The term of the Service
shall automatically renew on a month to month basis on the terms and conditions
set forth herein, unless the terminating party delivers to the other party sixty
days advance written notice of termination. Upon renewal under this provision,
the price to Customer will be as stated in PBI's price list in effect at the
time of renewal for month to month Service.
B. The Service Activation Date shall be the date Customer has
connectivity over the transport network to PBI's Internet Access Network. In
the case of connectivity via ISDN, Frame Relay, SMDS, or ATM, connectivity shall
have occurred when a physical connection has been installed and a Private
Virtual Circuit (PVC) has been established to permit routing of traffic from
Customer's equipment to PBI's Internet Access Network. The Activation Date
shall not be dependent on correct configuration of Customer's computer
equipment, applications (e.g. Domain Name Service, Electronic Mail Service),
Local Area Network or Wide Area Network.
2. SALES ORDERS
A. Customer may issue Sales Orders from time to time. Each Sales Order
shall be substantially in the form of Exhibit A. Each Sales Order shall (i) be
deemed to be a separate and independent Agreement between the parties; (ii)
incorporate all provisions of this Agreement as it may from time to time be
amended and agreed to be the parties, including any appendices, exhibits and
other documents attached hereto, and (iii) be required initially, with each new
feature package, and with each new location thereafter.
B. Acceptance of this Agreement by PBI, and the provisions of Services
and/or Equipment (if the Equipment option is chosen), under this Agreement, and
any applicable Sales Orders, is conditioned on completion of the Credit
Verification Form, Exhibit B, and verification of the credit information
provided therein. PBI will, at its discretion, check the credit history of the
Customer prior to acceptance of any Sales Order. PBI reserves the right to
reject any Sales Order based on the results of the credit check, or to impose
additional terms and conditions, in accordance with its credit policies. In the
event additional terms and conditions are needed, such additional terms and
conditions shall be set forth in an amendment to this Agreement, or in a Sales
Order issued under this Agreement.
C. PBI may require an advance payment, progress payments, or other form
of security as a condition of acceptance of any Sales Order.
3. BILLING AND COLLECTIONS
A. For all charges, including installation charges and taxes, if
applicable, PBI will (i) send Customer an invoice, (ii) bill Customer on the
Customer's monthly Pacific Bell telephone bill, or (iii) bill the Customer's
credit card. The first invoice for Service will include: (1) the pro-rated
charges for the remainder of the current month; (2) the total charges for the
following month; (3) the usage charges for the previous month, and (4) the
installation charges, as applicable. Monthly recurring Service charges shall
commence on the Service Activation Date, and shall be billed in advance of
Service for months following the first month of Service. Invoices are due and
payable in full upon receipt. If any portion of payment is received after the
late payment date, a monthly late charge may be charged to Customer as
liquidated damages. The monthly late charge will be 1.5% of the entire
outstanding balance for each month or portion thereof (18% per annum) for which
the balance remains.
B. In the event Customer fails to pay charges billed by PBI or its
billing agent is unable to bill Customer, PBI reserves the right to bill
outstanding sums in any of the alternative methods identified in paragraph 3.A.
PBI may assign unpaid late balances to a collection agency for appropriate
action, in the event legal action is necessary to collect on balances due,
Customer agrees to reimburse PBI for all expenses incurred to recover sums due,
including attorneys fees and other legal expenses.
C. Customer's basic telephone Services -- such as Contrax Measured
Business Service, or ISDN -- will not be disconnected for nonpayment of charges
for Services provided under this Agreement. However, PBI may suspend or
discontinue Services if charges for these Services are not paid.
4. INTERRUPTION OF SERVICE
Customer understands and agrees that temporary interruptions may occur as
normal and reasonable events in the provision of the Service. PBI agrees to
exercise reasonable care to prevent such occurrences. Customer further
understands and agrees that PBI has no control over third party networks
Customer may access in the use of the Service and therefore, delays and
disruptions of other network transmissions are completely beyond the control of
PBI.
5. LIMITATION OF LIABILITY
A. PBI shall make reasonable efforts to provide continuous uninterrupted,
expedient and error-free Service to Customer. In no event shall PBI be liable
to Customer or any other person for any special, incidental, consequential or
punitive damages of any kind, including without limitation, loss of profits,
loss of income or cost of replacement Services.
B. PBI's liability for damages for interruption of Service, or for
mistakes, omissions, delays, errors and defects in the provision of the Service,
shall in no event exceed an amount equal to the prorata charges to Customer for
the period during which the Services are affected.
C. Any software provided hereunder is provided on an as is basis. PBI
makes no express or implied warranties (including those of merchantibility or
fitness for a particular purpose) with respect to the software provided.
D. EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT, PBI HEREBY
DISCLAIMS ANY AND ALL WARRANTIES INCLUDING IMPLIED WARRANTIES OF FITNESS,
MERCHANTIBILITY AND PERFORMANCE.
E. PBI MAKES NO WARRANTY THAT THE SERVICE WILL MEET CUSTOMER'S
REQUIREMENTS, OR THAT THE SERVICE WILL BE UNINTERRUPTED, TIMELY, SECURE, OR
ERROR FREE; NOR DOES PBI MAKE ANY WARRANTY AS TO THE ACCURACY OR RELIABILITY OF
ANY INFORMATION OBTAINED THROUGH THE SERVICE. CUSTOMER UNDERSTANDS AND AGREES
THAT ANY MATERIAL AND/OR DATA DOWNLOADED OR OTHERWISE OBTAINED, THROUGH THE USE
OF THE SERVICE, IS DONE AT CUSTOMER'S OWN RISK, AND THAT CUSTOMER WILL BE SOLELY
RESPONSIBLE FOR ANY DAMAGE TO CUSTOMER'S COMPUTER SYSTEM OR LOSS OF DATA WHICH
RESULTS FROM THE DOWNLOAD OF SUCH MATERIAL AND/OR DATA.
F. PBI MAKES NO WARRANTY REGARDING ANY TRANSACTIONS EXECUTED THROUGH
THE SERVICE, AND CUSTOMER UNDERSTANDS AND AGREES THAT SUCH TRANSACTIONS ARE
CONDUCTED ENTIRELY AT CUSTOMER'S OWN RISK.
6. CANCELLATION AND TERMINATION
A. In the event a ruling, regulation or order issued by a judicial,
legislative or regulatory body causes PBI to believe that this Agreement may be
in conflict with such rules, regulations or orders, the Customer shall either
agree to modify this Agreement to conform to the terms of such rules,
regulations or orders, or PBI may terminate this Agreement without liability.
B. Customer may terminate any Sales Order upon thirty days prior notice
to PBI. However, upon termination, Customer shall pay any applicable
cancellation charge as set forth in subpart D of this paragraph.
C. If Customer fails to pay any charge when due, including but not
limited to installation charges or taxes, and such condition continues
unremedied for a period of thirty days, or if Customer fails to perform or
observe any other material term or condition of this Agreement, or if Customer
provides false or inaccurate information which is required for the provisions of
the Service or that which is necessary to allow PBI to bill Customer for the
Service, and such condition continues unremedied for thirty days, Customer shall
be in default and PBI may terminate this Agreement. Upon such termination by
PBI, Customer shall be liable for any applicable charges, including a
Cancellation Charge.
D. A Cancellation Charge for early termination of Services will be
applied to the final bill. The Cancellation Charge shall be in a sum equal to
the installation charges waived, plus any recurring charge(s) for the remaining
balance of the term of the Agreement.
7. ASSIGNMENT AND SUBCONTRACTING
A. Either party may, at any time, assign its rights and delegate its
duties under this Agreement to any present or future affiliate of such party; or
PBI may assign to any other company if such assignment will, in PBI's opinion,
provide consistent Services to Customer, or assist in the implementation of any
law or ruling issued by any judicial or other governmental authority. The
assigning party shall give written notice of any such assignment
B. PBI may subcontract any or all of the work and duties to be performed
by it under this Agreement, but shall retain responsibility for the work
subcontracted.
8. GOVERNING LAW
This Agreement shall be construed in accordance with the laws of the State of
California.
9. MODIFICATION OF TERMS AND CONDITIONS
This Agreement may be amended by mutual Agreement of the parties at any time
during the term of this Agreement. No amendment of this Agreement shall be
valid unless in writing and duly executed by both parties.
10. FORCE MAJEURE
Neither PBI nor Customer shall be responsible for damages or for delays or
failures in performance resulting from acts or occurrences beyond their
reasonable control, including, without limitation: fire, lightning, explosion,
power surge or failure, water, acts of God, war, revolution, civil commotion or
acts of civil or military authorities or public enemies, any law, order,
regulation, ordinance, or requirement of any government or legal body or any
representative of any such government or legal body; or labor unrest, including
without limitation, strikes, slowdowns, picketing or boycotts; inability to
secure raw materials, transportation facilities, fuel or energy shortages, or
acts or omissions of other common carriers.
11. USE LIMITATIONS
A. Customer agrees to comply with the rules, regulations and policies,
including but not limited to, PBI's Acceptable Use Policy (located at
HTTP://PUBLIC.PACBELL.NET/DIALUP/USEPOLICY.HTML), all
policies applicable to PBI and all policies applicable to any network that is
accessed through PBI. Violation of any such rules, regulations and policies, or
any attempts to break security or to access an account which does not belong to
Customer, shall be considered a material breach of contract, and PBI may
terminate this Agreement without liability. Upon such termination by PBI,
Customer shall be liable for any applicable charges, including cancellation
charges.
B. Nothing contained in this Agreement may be construed to convey to
Customer any interest, title, or license in the user ID, electronic mail
address, Universal Resource Locator or domain name used by Customer in
connection with the Service.
C. PBI reserves the right to suspend or terminate Service to the
Customer, or suspend or terminate any user ID, electronic mail address.
Universal Resource Locator or domain name used by Customer in the event it is
used in a manner which (i) constitutes violation of any law, regulation or
tariff (including, without limitation, copyright and intellectual property
laws); (ii) is defamatory, fraudulent, obscene or deceptive; (iii) is intended
to threaten, harass or intimidate; (iv) tends to damage the name or reputation
of PBI, its parents, affiliates and subsidiaries; or (v) interferes with other
Customers' use and enjoyment of the Services provided by PBI.
D. Customer understands and agrees that any attempt to break security, or
to access an account which does not belong to Customer, shall be considered a
material breach of this Agreement, and such breach may result in suspension or
termination of the Service. Customer further agrees to immediately notify PBI
of (i) any unauthorized use of Customer's account and/or (ii) any breach, or
attempted breach, of security known to Customer.
12. CUSTOMER RESPONSIBILITIES
A. Unless specified in an accepted Sales Order, which is executed
pursuant to this Agreement, Customer is solely responsible for provisioning,
configuration and maintenance of all Customer premises equipment (hardware and
software), including without limitation: TCP/IP routers, CSU/DSU line interface
units, primary domain name servers, electronic mail servers, netnews servers and
firewall or proxy servers. PBI shall not be responsible for delays in the
provision of Service resulting form incompatibility of such equipment, or
resulting from improper provisioning, configuration or maintenance of such
equipment.
B. PBI may provide configuration files for certain routers, at its sole
discretion, and only as a convenience to Customer. PBI recommends that Customer
obtain RFC compliance information from the manufacturer of their routers.
C. Customer is responsible for choosing a domain name and submitting an
application for address assignment or transfer to PBI. PBI makes no warranties
with respect to the availability of any domain name. Nothing contained in this
Agreement may be construed to convey to Customer any interest, title, or license
in the user ID, electronic mail address, Universal Resource Locator or domain
name used by Customer in connection with the Service.
13. TRANSPORT SERVICES
A. Customer must obtain local transport services from Pacific Bell for
Dedicated Internet Access. Rates, terms and conditions applicable to Pacific
Bell transport services are set forth in tariff schedules filed with the
California Public Utilities Commission, and are not in any way affected by the
terms of this Agreement. Customer is responsible for payments of tariffed
network services needed for use of the Service. ANY LONG DISTANCE MEASURED
SERVICE OR TOLL CHARGES INCURRED BY CUSTOMER TO ACCESS THE SERVICE DURING
CUSTOMER'S USE OF THE SERVICE SHALL BE CUSTOMER'S SOLE RESPONSIBILITY.
B. Customer must select a complementary Global Service Provider for
interconnection services. Rates, terms and conditions applicable to
complementary Global Service Provider interconnection services are not in any
way affected by the terms of this Agreement.
14. SOFTWARE
PBI will provide Customer with the Service software ("Client Software" or
"Software") as specified in the Sales Order, together with necessary user guides
and other documentation. Use of the Client Software is subject to the Software
licensing provisions set forth in this Agreement enclosed in the Client Software
Package.
15. GENERAL
A. If any portion of this Agreement is found to be invalid or
unenforceable, the parties agree that the remaining portions shall remain in
effect. The parties further agree that in the event such invalid or
unenforceable portion is an essential part of this Agreement, they will
immediately begin negotiations for a replacement.
B. If either party ever fails to enforce any right or remedy available to
it under this Agreement, that failure shall not be construed as a waiver of any
right or remedy with respect to any other breach or failure by the other party.
C. Any legal action brought by Customer against PBI with respect to this
Agreement must begin within two years after the cause of action arises.
D. Any terms which by their sense and context are intended to survive
expiration or termination of this Agreement shall survive.
E. This Agreement constitutes the entire agreement between the parties,
and consists of the foregoing terms and conditions and the terms and conditions
on the attachments to this Agreement, which are incorporated herein by this
reference.
F. Notices and other communications shall be transmitted in writing by
U.S. Mail postage prepaid and shall be effective four days after the sending
date. To PBI: PBI, 303 Second street, North Tower, 6th Floor, Suite 650, San
Francisco, CA 94107, Attn: Vice President, Sales. To Customer: As set forth
below, or as indicated in the Sales Order.
SECTION II. The terms and conditions of this Section II shall not apply if
Equipment is not being purchased pursuant to this Agreement.
1. SALE OF EQUIPMENT
A. Title to Equipment provided by PBI under this Agreement shall pass to
the Customer when all charges have been paid in full.
B. Equipment provided by PBI under this Agreement, PBI shall have: (1) A
purchase money security interest in the Equipment to secure the purchase price
of the Equipment until the purchase price is paid in full; and (2) a security
interest in the Equipment to secure all installation, sales taxes and Service
charges until the charges are paid in full. Customer agrees to execute and
deliver all documents requested by PBI to protect and maintain these security
interests.
C. Risk of loss for Equipment provided to Customer under this Agreement
shall pass to Customer on delivery.
D. PBI shall transfer to Customer the warranty provided by the original
manufacturer of the software or Equipment provided pursuant to this Agreement.
PBI makes no express or implied warranties
(including those of merchantibility or fitness for a particular purpose) with
respect to the software or Equipment provided.
2. INSTALLATION OF EQUIPMENT
A. In the event PBI provides on site installation of Equipment provided
pursuant to this Agreement, Customer shall provide reasonable access to
Customer's premises, and adequate communications facilities and work space, to
enable PBI to perform its obligations under this Agreement. Customer shall make
premises free from all hazardous material (e.g. asbestos) and dangerous
conditions prior to performance of work by PBI.
B. Installation is complete when:
- Equipment is configured per manufacturer specifications, or other
Customer-specified configuration provided to PBI prior to
installation.
- Equipment is connected to network service, as applicable to the type
of units to be installed.
- Equipment has been tested with network service provided by Pacific
Bell, which is ordered by Customer, outside this Agreement.
- Equipment operates as per manufacturer specifications.
C. Installation does not include:
- Installation or other work related to inside wire.
- LAN configurations and testing of applications.
- Additional site visits for Customer missed appointments, site not
ready, or additional testing or configuration requested by Customer.
Additional site visits will be billed on a time and materials charge
at the then current rate, at a minimum of two hours per site visit.
- Fine tuning of application related communication.
- Administration of installed units, or configuration changes requested
after installation.
- Site visits to determine circuit or jack demarcation or termination,
or to determine equipment placement.
3. MAINTENANCE OF EQUIPMENT
A. PBI will provide onsite repairs or maintenance ("Maintenance
Services") for Equipment provided pursuant to this Agreement. In the event
Customer purchases Maintenance Service from PBI, Customer shall provide
reasonable access to Customer's premises, and adequate communications facilities
and work space, to enable PBI to perform its obligations under this Agreement.
Customer shall make premises from all hazardous material (e.g. asbestos) and
dangerous conditions prior to performance of work by PBI.
B. If the Equipment provided pursuant to this Agreement has been altered or
repaired by any other party than PBI, without PBI's written consent, or a
malfunction is the result of mishandling, abuse, misuse or improper storage,
installation, maintenance or operation by other than PBI (including use in
conjunction with equipment electronically or mechanically compatible) or if the
Equipment has been damaged by fire,
explosion, power failure, any act of God, or by any other cause whatsoever other
than PBI, then PBI has no obligation to provide Maintenance Service.
C. If PBI dispatches to the Customer's site and is not able to perform
Maintenance Service on Equipment provided pursuant to this Agreement due to lack
of access or other acts or omissions on the part of the Customer, PBI will bill
and the Customer will reimburse PBI at PBI's then applicable and then current
time and material rates.
D. If PBI dispatches to the Customer's site to perform Maintenance Services on
Equipment provided pursuant to this Agreement and the trouble is not found or
the trouble is related to Equipment not covered by this Agreement, PBI will bill
and the Customer will reimburse PBI at PBI's then applicable and then current
rates for travel and time spent.
E. Title to parts installed on Equipment provided pursuant to this agreement
during the Maintenance Services process will pass to Customer upon installation.
Title to parts removed during the rendering of the Maintenance Services will
pass to PBI upon removal.
F. For Maintenance Services of any Equipment provided pursuant to this
Agreement under a manufacturer's warranty, PBI may, at its option, repair or
replace such Equipment at Customer's location or at another location specified
by PBI.
G. Customer is responsible for the costs of shipping Equipment provided
pursuant to this Agreement for services under manufacturer's warranty. Should
equipment received for service prove to be in good working order, such Equipment
shall be returned to Customer at Customer's expense.
SECTION III. The terms and conditions of this Section III shall not apply if Web
Hosting Service is not purchased pursuant to this Agreement.
1. CUSTOMER RESPONSIBILITY.
A. Customer will furnish PBI with the pre-developed web site that is to
be hosted by PBI. Any change to this web site will be provided by the
Customer to PBI in the form of "ready to implement" HTML pages.
B. Customer shall allow PBI continuous access to Customer's web site to
the extent necessary for the purpose of providing security,
maintenance and repair of system software, facilities, and operational
support systems.
C. Customer shall be liable for any damage to PBI equipment, hardware,
software, facilities and systems which may be caused by or result
from: (1) negligent or willful acts of omissions of Customer or its
personnel; or (2) malfunction or failure of equipment or software
caused by Customer by its agents, employees or suppliers.
2. INSTALLATION
Installation is complete then (1) Customer's web site is configured per PBI's
specifications, (2) Customer's web site has been tested with network service,
(3) Customer has received domain name from the InterNIC, or agrees to use a PBI
designated URL and (4) Customer's web site is connected to the Internet.
3. ADDITIONAL CHARGES
A. Additional charges for Web Hosting shall apply if one or more of the
following is required: (1) installation or other work related to custom web
sites; (2) LAN configurations and testing of applications; (3) additional
testing or configuration requested by Customer; (4) alterations or configuration
changes requested after installation has been completed.
B. PBI's invoice will clearly state any excise, sales, use or other taxes
applicable to Customer's purchase of Web Hosting Service(s) from PBI. If
Customer presents PBI with a valid exemption certificate (in the form of Exhibit
D) in advance of billing, taxes will not be collected. In addition to the
foregoing,
PBI shall not be responsible for any assessment, billing or collection of any
taxes or fees applicable to the goods or services provided by Customer in
connection with the Web Hosting Service.
4. DISCLAIMERS, LIMITATIONS OF LIABILITY AND INDEMNITY
A. PBI IS NOT RESPONSIBLE FOR PROVIDING SECURITY SYSTEMS OR FIRE WALLS
FOR CUSTOMER'S WEB SITE, AND SHALL NOT BE LIABLE IN ANY WAY FOR ANY DIRECT OR
CONSEQUENTIAL LOSS, DAMAGE, EXPENSE, COST OR CLAIM WHATSOEVER IN THE EVENT
CUSTOMER'S WEB SITE IS MODIFIED, TAMPERED WITH, BLOCKED, OR OTHERWISE AFFECTED
BY ANY ACTIONS OF ANY THIRD PARTY USERS OF THE SITE OR BY THE THIRD PARTY ACCESS
TO THE SITE OR BY REASON OF ITS CONNECTION TO THE INTERNET.
B. Customer's web site will be maintained on a server deemed adequate for
purposes of access to its third parties. Customer acknowledges that the server
on which its site will be maintained may also be used to maintain the sites of
other customers of PBI and that such shared use may affect the speed of access,
downloading speed, and capacity for simultaneous access to Customer's site. PBI
SHALL IN NO EVENT BE LIABLE FOR ANY DIRECT OR CONSEQUENTIAL LOSS, DAMAGE,
EXPENSE, COST OR CLAIM WHATSOEVER RESULTING FROM DELAYS IN ACCESS, BLOCKAGE,
DOWNTIME, OR OTHER SERVICE PROBLEMS CAUSED BY USE OF THE SITE IN EXCESS OF THAT
SPECIFIED BY CUSTOMER.
C. PBI shall have the right, but not the obligation, to terminate all
access to the site without prior notice in the event PBI determines that the
site contains material which is in violation of the Use Limitations of this
Agreement or PBI's Acceptable Use Policy (located at
"http://public.pacbell.net/dialup/usepolicy.html'). PBI SHALL IN NO EVENT BE
LIABLE FOR ANY DIRECT OR CONSEQUENTIAL LOSS, DAMAGE, EXPENSE, COST, OR CLAIM
WHATSOEVER RESULTING FROM THE UPLOADING OF CONTENT OR MATERIAL TO THE WEB SITE
BY CUSTOMER OR BY ANY THIRD PARTY.
D. Customer agrees to indemnify and save PBI harmless from all claims,
losses, expenses, suite and attorney's fees (collectively "Liabilities") for
damages to or loss of any property and for liability, or loss resulting for the
assessment of any taxes, penalties, interest, additions to tax surcharges or
other charges (including reasonable attorney fees), which may in any way arise
out of or result from or in connection with this Agreement, Customer's use of
the Web Hosting Service, except to the full extent that such liabilities arise
from the active negligence or willful misconduct of the other. Customer further
agrees to indemnify and save PBI harmless from all claims, losses, taxes, fees,
liens, expenses, suits and attorney's fees (collectively "Tax Liabilities")
resulting from or in connection with Customer's delay or failure to pay any tax,
fee or assessment, or Customer's failure to file any tax return or other tax
information as required by law.
5. PBI OBLIGATIONS
For the Web Hosting service PBI shall (1) provide Internet web site hosting for
the Customer, (2) work with the Customer for the first thirty days after
installation to answer any unresolved issues, and (3) provide Customer 24x7
Network Operations Center (NOC) support The NOC monitors PBI's network and
server facility.
6. INSTALLATION DATE
The estimated available installation date is in two weeks after PBI has received
a signed Sales Order. Changes to the web site will be installed by PBI within an
estimated two (2) business days after receipt by PBI of the changes. These time
periods may vary based on scope of the desired installation and upon the current
availability of equipment and service.
PACIFIC BELL INTERNET SERVICES COMPANY NAME: CNM Network
Signed: Signed: Fred Rice
Print Name: Liz Gallagher Print Name: Fred Rice
Title: Sales Representative Title: President
Date: 3/4/98 Date: 3/4/98
(Customer must initial only one applicable option)
XX Option A. Customer hereby certifies that more than ten percent of the use
of the Service is interstate in nature.
Option B. Customer hereby certifies that less than ten percent of the use
of the Services is interstate in nature.
*Offer expires thirty (30) days from this date
Exhibits attached: (A) Sales Order Form (B) Credit Verification Form (C)
Customer Price Quote Sheet (D) Tax Exemption Certificate