Mega POP-TM- Services Selected
This form must be completed to activate any MegaPOP-TM- services.
MegaPOP-TM- Customer ID _________ Application Date 10-2-98
Company Name CONSUMER NET MARKETPLACE (CNM Network)
Address 1900 E. Los Angeles Ave., 2nd Floor
City Simi Valley State CA Zip 93065
Phone 805-520-7170 Fax 805-520-7211
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SERVICES SELECTED APPLICABLE FEES
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Standard MegaPOP-TM- Set-Up: Yes No $250
Set-Up Fee: $250
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Proxy Radius (Realms) Set-Up: ten Yes No $250
Set-Up Fee: $250 If YES, the MegaPOP-TM- Proxy
Radius Form must be completed.
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Filtered Access l)ial-Up Service: if you are using Proxy Radius for
Authentication another MegaPOP
Set-Up Fee: $250 Yes No Proxy Radius Form must he completed
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Packet Filter Set-Up: Yes No IF YES, THE MEGAPOP-TM-
Packet Filter Form must
Set-Up Fee: $250 be completed.
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Email Services Requested: Yes No
Set-Up Fee: $4,500
Domain Name to be used
Is this a New err Existing Domain Name?
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Personal Web Services Requested: Yes No
Set-Up Fee: $4,500
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UseNet Services Requested Yes No
Set-Up Fee: $ 100
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I hereby authorize StarNet, Inc. to activate these selected services and agree I
am bound to all conditions and restrictions described within the MegaPOP-TM-
Wholesale Services and StarNet, Inc. Terms of Service Agreement. $500
Total set-up fees
SIGNATURE REQUIRED: (RANDY GREENE) DATE: 10/2/98
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Set-Up Fees Paid By: Company Check /X/ Credit Card / /
If paying by Credit Card, please complete the following:
Name on Credit Card
Card Number
Signature of Card Holder Expiration Date
ALL APPLICABLE SET-UP FEES MUST BE PAID IN FULL PRIOR TO ACTIVATION OF SERVICES.
ALL MEGASOP-TM- SERVICES ARE HELD TO THE STARNET TERMS OF SERVICE DOCUMENT AND
THE MEGAPOP-TM- WHOLESALE SERVICE AGREEMENT
StarNet, Inc. 579 First Bank Drive, Suite 100, Palatine, IL 60067 (847) 963-0116
Voice, (847) 963-1302 Fax
www.megapop.net info@megapop.net
MEGAPOP-TM- Wholesale Service Agreement
100198
This Agreement, made and entered into this 2 day of October, 1998 (hereinafter
referred to as "date of this Agreement") by and between StarNet, Inc., a
corporation having it's principal place of business at 579 First Bank Drive,
Suite 100, Palatine, IL 60067 (hereinafter "SNI") and
CONSUMER NET MARKETPLACE, Inc.
a corporation having it's principal place of business at
1900 E. LOS ANGELES AVE. 2ND. FLOOR
SIMI VALLEY, CA 93065 (HEREINAFTER "ISP").
WITNESSETH
Whereas, ISP is in the business of Providing various Services on the worldwide
computer network known as the Internet and of providing support for various
advertising and telemarketing sales forces;
Whereas, SNI is in the business of providing various services to third parties
on the Internet, including but not limited to providing access to the Internet
for individuals and business entities;
Whereas, ISP desires a provider of access to the Internet for its customers and
clients;
Whereas, SNI desires to provide access to the Internet for customers and clients
of ISP;
Whereas, the parties hereto are desirous of setting forth, in writing, terms and
conditions, under which ISP shall direct their customers to SNI for service and
SNI shall provide such customers with access to the Internet;
Now therefore, in consideration of the premises set forth in the foregoing
recitals, which are hereby made a part thereof anti incorporated herein by
reference, and further, of the mutual promises, covenants, agreements,
conditions, terms and acknowledgments contained herein and other good and
valuable consideration, the receipt and Sufficiency of w high are hereby
acknowledged, ISP and SNI hereby agree as follows:
ARTICLE ONE - DURATION
1.1. TERM.
Except as otherwise provided herein and subject to earlier
termination hereof in accordance with the terms of this Agreement,
the "initial term" of this Agreement shall be one (1) year from the
date hereof.
1.2. EXTENSION.
This Agreement shall be automatically extended beyond the initial
term unless earlier terminated as otherwise provided in this
Agreement or unless either party provides written notice of
termination to the other as set forth immediately hereinbelow. A
written notice of termination must be provided by one party to the
other no later than sixty (60) days prior to the expiration of the
initial term, and hereafter on no less than sixty (60) days prior
written notice hereinafter, the initial term and any extension
thereof shall sometimes collectively be referred to as the "term of
this Agreement".
ARTICLE TWO - DUTIES AND RESPONSIBILITIES OF ISP
2.1. CUSTOMERS.
ISP Shall not be limited to directing all of it s customers to SNI
for purposes of providing access to the Internet under the terms and
conditions of this Agreement.
2.2. ADVERTISING AND PROMOTION.
ISP shall solely be responsible for and shall incur reasonable
expense in connection with advertising and promotional activities
designed specifically to generate customers who are interested in
access to the Internet.
2.3. SIGN UP.
ISP shall document and maintain information pertaining to each
customer who has committed to the
Internet Services to be provided by SNI under the terms of this
Agreement The pertinent information, specifically the followings 1.
ISP assigned (12) digit PPP logon name, 2 ISP assigned PPP password,
3PPP account activation/deactivation symbol, and 4. The preferred
MegaPOP-TM- dial-up location for the specific customer, shall be
forwarded to SNI by ISP, via electronic file transfer to a
pre-determined SNI authentication server, in a pre-determined format,
to SNI for activation on the SNI system for eventual service.
2.4. TERMS AND CONDITIONS.
ISP shall make such warranties, and representations and may limit its
liability to any customer, in such terms, conditions and limitations
substantially identical to those set forth in existing ISP customer
liabilities.
2.5. CUSTOMER CONTACT.
SNI shall not contact an ISP customer without prior written
permission of ISP whose permission shall not be unreasonably
withheld.
2.6. ISP PPP ACCOUNT NAMES
ISP shall assign and be responsible for the assignment of ISP PPP
account names. Account names shall be defined within the twelve (12)
digit account name definition whereas the preceding four (4) digits
of the ISP PPP account name will be defined as the four (4) digit
code assigned exclusively to ISP. The succeeding eight (8) digits in
the ISP PPP account name will be assigned and managed by ISP. ISP
agrees to limit the assignment of ISP PPP account names to one ISP
PPP account name per PPP account assigned.
2.7. PPP ACCOUNT PASSWORDS
ISP shall be responsible for the assignment and maintenance of all
ISP PPP account passwords.
ARTICLE THREE - DUTIES AND RESPONSIBILITIES OF SNI
3.1. TO ISP.
Within (1) business day after the execution of this agreement by the
parties hereto, SNI shall provide to ISP the following:
(a) complete PPP access to the Internet for all ISP customers
described within this Agreement.
(b) complete 2 B channel ISDN access to the Internet for all ISP
customers described within this Agreement.
3.2. TO THE CUSTOMERS.
Within one (1) business day of receipt of notice from ISP of an
electronic delivery of customer access information, SNI shall
perform, cause to be performed, or provide, as the case may be, the
following:
(a) SNI shall establish a new PPP account for each customer delivered
to SNI, via electronic file transfer, with access to all SNI
MegaPOP-TM- PPP dial-up servers;
(b) For each customer, SNI shall provide unlimited dial-up access to
the Internet through SNI PPP dial-up servers. ISP understands that
their customers will be subject to a minimum of 10 minute idle time
cutoff, whereas each connected customer will lose their connection in
the even they do not make use of their connection for a minimum
period of 10 minutes.
3.3. BUSY SIGNAL CONDITION(S).
SNI will make every reasonable effort to maintain a user to modem
ratio, on a city to city basis, equal to or less than 10:1. In the
event the user to modem ratio exceeds 10:1, SNI must take immediate
action to remedy this situation within 30 days. In the event the user
to modem ratio does not reduce to less than 10:1 in the allotted 30
day period, ISP may make claims for the reduction of their monthly
MegaPOP-TM- invoices for the affected service month, following the 30
day period, for up to 25% of their total service invoice. ISP must
itemize the total number of affected customers using the MegaPOP-TM-
services in the affected city.
ARTICLE FOUR - TECHNICAL SUPPORT AND CUSTOMER INQUIRIES
4.1. SERVICES OF SNI.
SNI shall perform technical support services, to ISP, solely relevant
to connection of a customer to access to the Internet, including but
not limited to the customer's modem, but excluding any services
relevant to the ISP provided customer software. All of said services
shall be performed by SNI during its normal and regular business
hours.
4.2. SERVICES OF ISP.
ISP shall address any and all customer inquiries of any nature
whatsoever and shall perform any and all technical support services
relevant to the ISP software provided to its customers.
ARTICLE FIVE - PAYMENT
5.1. AMOUNT.
ISP shall make payment to SNI in the amount, described in Addendum A
"MegaPOP-TM- Price Schedule" per customer per month for each ISP
customer that SNI provides PPP access to the Internet under the terms
of this Agreement. Payment shall be made to SNI on or before the 10th
day of each succeeding calendar month. Payment in full shall be made
to SNI as provided hereinabove, not withstanding customer connection
to or termination from the Internet at any time during the preceding
calendar month. SNI shall provide written notice to ISP, for any
changes in the Addendum A "MegaPOP-TM- Price Schedule", with a
minimum sixty (60) days notice prior to the effectivity; of such
changes, for all existing recurring fee services
5.2. BILLING AND COLLECTION.
ISP shall Provide all services of billing and collection and shall be
responsible for all costs and expenses incurred in connection with
services rendered by SNI under the terms of this Agreement.
5.3. FAILURE TO BILL OR COLLECT.
ISP shall make payment to SNI as described under the terms of this
Agreement notwithstanding ISP's failure to bill or collect from an
ISP customer for services provided by SNI under the terms of this
Agreement.
5.4. REFUND.
ISP may utilize its reasonable discretion in making a determination
whether monies should be refunded to an ISP customer as a result of
ineffective services provided by SNI to a customer under the terms of
this Agreement. Ineffective services of SNI shall be defined as the
failure by SNI to provide customers with uninterrupted access to
Internet the for a cumulative time period of less than ninety-seven
percent (97%) of the total available time for connection to the
internet during a given calendar month Total time available for
connection to the Internet shall be determined by multiplying the
number of days in the calendar month by twenty four (24) hours. The
log-in history of SNI s user access logs which shall be recorded by
SNI on one of their servers shall be used to determine service
interruptions. Any such refund provided to an ISP customer due to the
described ineffective service shall be taken from the payment owed to
SNI by ISP for the successive calendar month.
5.5. AMOUNT CALCULATION FOR CUSTOMERS ADDED.
ISP may provide internet access for their customers via any
MegaPOP-TM- access location. Access Authentication enabling a
customer s connection to the MegaPOP-TM- system may be achieved
through the MegaPOP-TM- Account Massager Interface or the ISP s own
Authentication Server. ISP reserves the right to activate and manage
their accounts via their own Authentication Server instead of the
MegaPOP-TM- Account Manager Interface Authentication Server.
(A) ISP agrees to pay SNI the full amount for each customer account
successfully added to the SNI system through the MegaPOP-TM- Account
Manager Interface within each preceding month for each customer
account activated from the first (1st) day of the calendar month
through the last day of the calendar month.
(B) ISP agrees to pay SNI the full amount for each of their customers
who have signed onto the MegaPOP-TM- system for any period of time
between 12:00 AM on the first (1st) day of the calendar month through
the 11 59:59 PM on the last day of the calendar month and who aren't
activated within the MegaPOP-TM- Account Manager Interface
Authentication Server. These ISP accounts may gain access to the
MegaPOP-TM- system via the Authentication Server under the direct
control and ownership of the ISP.
5.6 AMOUNT OF CALCULATION FOR CUSTOMERS DELETED.
(Item 5.6. applies only to those accounts activated and managed
within the MegaPOP-TM- Account Manager Interface Authentication
Server.) ISP agrees to pay SNI the full amount for each customer
deleted from the MegaPOP-TM- Account Manager Interface Authentication
Server during a calendar month for customers deleted on or after the
first (1st) day of the calendar month.
5.7. AMOUNT CALCULATION FOR ISDN ONLINE TIME.
Charges for online time for ISDN accounts will be calculated based
upon a monthly start point of 12:00:00
AM on the 1st day of a month and ending with 11:59:59 PM on the last
calendar day of the same month. ISDN Online time billing will be
rounded down to the nearest minute and charged in one minute
increments. ISDN Online time will be billed after 150 hours of online
time per month. All MegaPOP ISDN service is offered at 128K, 2 B
Channel service. Online time is calculated using the total single
channel time, divided by two (2). Monthly online free time per B
Channel is 150 hours for a tot al of 300 channel hours. ISP agrees to
pay the agreed upon hourly rate, for all its customer's online time
exceeding 150 free hours per month, per ISP ISDN customer. ISDN
online time will be determined using SNI's log-on accounting server
log files. Online time disputes will be resolved only through the
examination of SNI's log-on accounting server log files. SNI's log-on
accounting server log files will be available to the ISP in the event
a dispute occurs.
ARTICLE SIX - NON-EXCLUSIVITY
6.1. ISP and SNI agree to the terms of this Agreement with the
understanding that both ISP and SNI can and may offer similar
services to the market as competitors. ISP and SNI agree to the terms
of this Agreement with the understanding that the right to offer PPP
accounts to the market is non-exclusive and mutually competitive.
ARTICLE SEVEN - NON-SOLICITATION
7.l. ISP and SNI, each to the other, hereby agree that during, the term of
this Agreement and for a period of Sixth (60) days after termination
of this Agreement, neither party shall solicit any business from any
customer(s) of the other party.
ARTICLE EIGHT - COVENANT NOT TO COMPETE
8.1. STARNET PERSONNEL.
Unless otherwise agreed to by the parties in writing, SNI shall not
hire, employ or engage in any manner the services of any employee,
servant, director, or shareholder of ISP during the term of thus
Agreement.
ARTICLE NINE - LIMITATION OF LIABILITY
9.1. CONTRACT.
Neither SNI, nor any of its agents, contractors, technicians, or any
tier shall be liable to ISP or any other person or organization in
contract for any general, special, indirect, incidental, or
consequential damage whatsoever, including but not limited to, any
lost data, lost time or other system related damages, damage or loss
of property or equipment, loss of profits or revenues, cost of
capital, etc. which arises out of or is in connection with the
services of SNI covered or furnished within the terms of this
Agreement.
9.2. TORT.
Neither SNI nor any of its agents, contractors, technicians or any
tier shall be liable to ISP or any other person or organization for
any damage Whatsoever in tort (whether based in negligence, willful
conduct or strict liability) for any act or omission by ISP or any of
its servants, employees, or agents or for any use (other than its own
intended purpose), tampering, or illegal use of the by the customers
which arises out of or is in connection with the services of SNI
covered by the terms of this Agreement.
9.3. The remedies of ISP set forth herein are exclusive and the total
cumulative liability of SNI and any of its agents, contractors,
technicians and any tier with respect to this Agreement, or any thing
done in connection herewith such as performance or breach hereof, or
from installation, configuration, startup/initialization,
programming, or any other services of SNI covered by or furnished
under the terms of this Agreement, in tort (including negligence or
strict liability), or otherwise, shall not exceed the monthly service
fee payable to SNI on which such liability is based
ARTICLE TEN - INDEMNIFICATION
10.1. Notwithstanding anything to the contrary herein contained, each party
agrees to indemnify and hold the other harmless against any and all
liability, loss, claim, judgment, damage and expense (including
without limitation attorney's fees and costs of litigation) incurred
or suffered by the indemnified party as the result of negligence,
willful misconduct, or breach of any terms of this Agreement by the
indemnifying party, including but not limited to claims, liabilities,
losses damage, judgment and expense which arise out of alleged injury
or death of any person or damage to property of every kind and
description. The indemnifying party will not be responsible for ANY
COMPROMISE or settlement made without its written
consent, which consent will not be unreasonably withheld. Each party
shall promptly notify the other in writing of any claim for which its
obligated under this indemnity and for which it may seek
indemnification front the other. The indemnifying party shall have
the right to sue the defense of any such claim. Both parties shall
confer as to and agree on the legal counsel(s) to be selected in such
defense.
ARTICLE ELEVEN - NONDISCLOSURE
11.1. GENERAL.
Both parties agree not to disclose to any third party any proprietary
or Confidential information obtained from the other during the
negotiation or performance of this Agreement while the Agreement is
in force and for five years thereafter, including any and all
technology and trade secrets now existing or arising in the future,
price, schedules and customer lists.
ARTICLE TWELVE - REMEDIES FOR BREACH
12.1. Except as otherwise limited by Article Nine, if either party breaches
any of the terms and provisions of this Agreement on its part to be
performed, whether such breach pertains to a default in payment or
otherwise, the non-breaching party shall have the right, if it so
elects, to serve upon the breaching party a written notice of its
intention to terminate this agreement this Agreement and the nature
of the breach.
(a) The breaching party shall thereupon have a period of thirty (30)
days, after written notice as such has been served within which to
remedy the breach.
(b) If the breaching party fails to duly remedy the breach, then upon
the expiration of the thirty (30) days this Agreement and any rights
herein granted shall in all respects cease and terminate, and the
breaching party Shall have no further rights hereunder
(c) Notwithstanding such termination, each party's rights arising out
of this Agreement or in connection therewith or existing prior
thereto shall nevertheless continue in full force and effect,
including such party's right to sue for damages caused to them by the
other party s breach and failure to cure the same within the
aforementioned time period.
12.2. Nothing in this Agreement shall bar either party's right to seek
specific performance of the provisions of this Agreement and
injunctive relief against threatened conduct that will cause it loss
or damages under customary equity rules, including applicable rules
for obtaining restraining orders and preliminary injunctions. Both
parties agree that the non-breaching party may seek such injunctive
relief in addition to such further or relief as may be available at
equity by law.
12.3. If a claim for amounts owed by either party is asserted in any
judicial proceeding, or if either party is required to enforce this
Agreement in a judicial or arbitration proceeding, the party
prevailing in such proceeding shall be entitled to reimbursement of
its costs and expenses, including but not limited to, reasonable
accounting, attorney's and attorney assistant fees.
ARTICLE THIRTEEN - TERMINATION
13.1. GENERAL.
Unless other vise agreed to in writing by ISP and SNI and except as
may be otherwise provided herein, this Agreement shall automatically
terminate upon the occurrence of any of the following events:
(a) a party files for bankruptcy or is or becomes insolvent or is
declared insolvent or bankrupt, or makes an assignment or another
arrangement for the benefit of its creditors or is involuntarily the
subject of a bankruptcy filing,
(b) a party has all or any substantial portion of its equity or
assets expropriated by any governmental authorities;
(c) a party is dissolved or liquidated; or
(d) a party disposes of substantially all of its assets.
13.2. DEACTIVATION OF CUSTOMERS.
Upon termination of this Agreement and by no later than the end of
the month succeeding the calendar month in which this Agreement has
been terminated, SNI shall deactivate all ISP PPP accounts, thereby
terminating an ISP customer's access to the Internet, and SNI shall
be entitled to all payments from ISP in accordance with the terms of
this Agreement up to and including the date of deactivation.
13.3. TERMINATION PENALTY.
ISP's Termination of this Agreement, prior to the agreed sport
termination date as described in article 1.1 of this Agreement, will
result in a penalty pas meat calculated according to the following
formula:
Number of Remaining Months of Agreement X Average Monthly Usage Fees
for prior Months of Agreement
ISP agrees to pay this amount in the event of ISP's Termination of
this Agreement prior to the agreed termination date described in
article 1.1. of this Agreement.
IN WITNESS WHEREOF, the parties hereto have caused this agreement to be executed
in duplicate as of the date set forth hereinbelow.
STARNET, INC.
An Illinois Corporation
By: Date:
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Signature and Title
ISP
By: (Randy Green, VP Sales) Date: 10-02-98
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Signature and Title
ISP Initials: (RG)
Page 5 of 5
STARNET, INC. 579 First Bank Drive, Suite 100, Palatine, IL 60067
(847) 963-0116 Voice, (847) 963-1302 Fax, www.megapop.net