Exhibit 4.13
URON
Wholesale Services Agreement
This WHOLESALE SERVICES AGREEMENT (hereinafter referred to as the "Agreement")
is entered into between URON, Inc a division of Vicom, Inc. / Multiband, a
wholesale provider of Internet access services, with its principal offices
located at ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇, (hereinafter referred to as
the "provider") and Doctor's Associates Inc. with offices at ▇▇▇ ▇▇▇ ▇▇▇▇▇,
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ (hereinafter referred to as the "Customer").
Term:
The initial term of this agreement shall be for (36) thirty-six months ("Term")
and replace all other existing written agreements between the two companies. The
term shall commence on the date both parties have executed this agreement
(Commencement date) This agreement shall automatically renew for successive (1)
one year periods ("Renewal Periods") after the expiration of the Term; unless
Provider or Customer provides the other party with thirty (30) days written
notice to terminate this Agreement as provided for hereinafter.
1. Description of Services:
Provider shall provide to Customer, and Customer shall purchase from Provider
and deliver to Customer's franchise owners / customers, the Internet access
services (the "provider Services") described in schedule A attached hereto
("Schedule A") Provider shall deliver the Provider Services to Customer on an
on-going basis during the Initial Term (as described herein), and any Renewal
Term (as defined herein), in a professional manner consistent with industry
standards. Customer may use the Provider Services (i) for Customer's own use;
(ii) for resale to end user subscribers; or (iii) for resale to others who in
turn may resell or provide the Provider Services to their end user subscribers
(each of (i), (ii) and (iii), an "End User".
2. Pricing:
The prices and rates for the Provider Services are set forth in Schedule A.
Provider may charge such prices and rates for any Renewal Term by providing
Customer notice in writing at least sixty (60) but not more than ninety (90)
days prior to the end of the Initial Term or Renewal Term, as the case may be.
3. Payment Terms:
3.1 Service Setup Fees. Upon execution of this agreement, by both parties,
Customer shall promptly pay to Provider the service setup fees (the"Setup Fees")
set forth on Schedule A. The Setup Fees shall be received by Provider prior to
Provider being obligated to commence or provide any Provider Services to
Customer.
3.2 Recurring Fees The only recurring fees in this agreement will be for the
connectivity service fees as described herein.
3.3 Service Fees. Calculation of Monthly Fee: Customer will be charged a Monthly
Fee for each user seen on of the unlimited networks (see Schedule A sec 3) as
tracked by the network identifier used by URON (`Unique User"). The Monthly Fee
will be calculated by multiplying the number of unique users in that month by
the price per Unique User. The Monthly Fee is for dial-up Internet access in the
contiguous United States.
3.4 Payment Due Date. All invoices are NET 10 days of the receipt of the Invoice
or the fifteenth day of the month, or the first business day after the fifteenth
of the month, whichever is later and shall be sent via electronic mail. Payments
must be received no later than the fifteenth day of the month (the "Due Date")
in order to avoid incurring a late fee pursuant to Section 3. .
3.5 Billing Disputes Customer shall notify Provider in writing of disputed
charges on any invoice within fifteen, (15) days of the date of delivery of such
invoice. In the event Customer disputes the charges in any invoice by providing
such written notice, payment for that portion of the disputed invoice may be
withheld without penalty pending resolution of such dispute. Payment for all
undisputed amounts ("Undisputed Charges") in any invoice shall remain due on the
Due Date. All billing disputes will be handled during the billing month
following the notice of dispute.
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3.6 Late Payment Charges. Delinquent payments of Undisputed Charges or portions
thereof, are subject to a late payment charge accruing from the Due Date through
the date the overdue amount is paid at the pro-rated rate of one and one-half
percent (1.5%) per month on the amount of the overdue amount, but not to exceed
the maximum lawful rate, if any.
3.7 Suspension for Non-Payment. In the event Customer does not remit payment for
Undisputed Charges by the Due Date, Provider may, in its sole discretion,
suspend the Provider Services upon 10 calendar days prior written notice to
Customer. In the event of termination of Provider Services pursuant to the
provisions of this Section 3.6, reinstatement of Provider Services may be made
solely in accordance with the provisions of Section 3.9.
3.8 Termination for Non-Payment. In the event Customer does not remit payment
for Undisputed Charges within thirty (30) days after the Due Date, Provider may,
in its sole discretion, terminate the Provider Services upon 10 calendar days
prior written notice (delivered via facsimile transmission and electronic
e-mail, or postal mail) to Customer. In the event of termination of Provider
Services pursuant to the provisions of Section 3.6, Section 3.7 or Section 3.8,
reinstatement of Provider Services may be made solely in accordance with the
provisions of Section 3.9.
3.9 Reinstatement. In the event Provider Services to Customer are suspended or
terminated for lack of payment per Section 3.6, Section 3.7, or Section 3.8 and
Customer wishes to have the Provider Services reinstated, Customer shall pay all
amounts due in addition to a reconnection fee equal to 10% of the delinquent
amount that resulted in suspension or termination of the Provider Services.
3.10 Collection Expenses. Customer agrees to pay Provider its reasonable
expenses, including reasonable attorney and collection agency fees and cost of
collection inclusive of cost of litigation, incurred in collecting any amounts
owed to Provider by Customer under this Agreement.
3.11 Taxes. All charges to Customer hereunder are exclusive of federal, state,
local and foreign sales, use, excise, utility, gross receipts and value-added
taxes and other taxes, levies fees or excises of any kind, including tax-related
surcharges or applicable tariffs, which Customer agrees to pay; provided,
however, that in no event shall customer pay any taxes based upon (i) Provider's
income, (ii) ordinary personal or real property taxes assessed against or
payable by Provider or (iii) corporate franchise taxes of Provider. In the event
that Customer provides Provider with a duly authorized exemption certificate,
Provider agrees to exempt Customer in accordance with the law, effective on the
date an exemption certificate is received by Provider.
4. CUSTOMER OBLIGATIONS
4.1 Compliance with Use Policy. Customer agrees to use the Provider Services
only in accordance with the terms of this agreement and Providers Use Policy
("Use Policy"), a copy of which is attached hereto as Exhibit 1. Provider may
amend or change its Use Policy at any time by providing Customer with written
notice of such amendment or change. Provider reserves the right to suspend or
terminate any Provider Services to any End User for any violation by such End
User of the Use Policy.
4.2 End Users. If Customer resells Provider Service to any End Users, Customer
(i) shall be responsible for all Dealings with the End Users regarding the
Provider Service, including but not limited to support, maintenance, billing and
collection services; (ii) shall require each End User to enter into an agreement
that such End User shall not use the Provider Services in a manner that is
prohibited by any law or regulation, or that is inconsistent with this Agreement
or the Use Policy; and (iii) shall not make, nor permit any End User to make,
any representation or warranty or offer any indemnity or otherwise make any
commitment to any End User or other party on behalf of the Provider. Customer is
responsible for all fees due to Provider, pursuant to Section 3.2 regardless of
whether Customer receives payment for the Provider Services from any End Users.
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4.3 Errors. Customer shall document and promptly report to Provider all errors
or Malfunctions of the Provider Service of which it becomes aware.
4.4 Contact Person. Customer shall provide Provider with a written list of the
persons ("Contact Person(s)") authorized to contact Provider regarding
Customer's account, for the Provider Services. The list of Contact Person(s) may
be updated or changed at any time by the Customer. The initial Contact Person(s)
shall be ▇▇▇▇▇▇ ▇'▇▇▇▇▇▇ and ▇▇▇▇ ▇▇▇▇▇▇. Anyone who is not a Contact Person
shall not be permitted access to any information regarding the Customer account
with Provider. Additional Contact Persons may be assigned by ▇▇▇▇▇▇ ▇'▇▇▇▇▇▇ or
by an officer of Doctor's Associates, Inc. / SUBWAY(R).
5. DISCLAIMER OF WARRANTIES; LIMITATION OF LIABILITITY 5.1 Disclaimer of
Warranties EXCEPT AS OTHERWISE EXPRESSLY SET
FORTH HEREIN AND IN SCHEDULE A or B (as applicable) HERETO, PROVIDER DISCLAIMS
ALL OTHER WARRANTIES, EXPRESS AND IMPLIED, INCLUDING THE WARRANTIES OF
MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, NONINFRINGEMENT AND TITLE,
AND ANY WARRANTIES ARISING FROM A COURSE OF DEALING, USAGE, OR TRADE PRACTICE.
EXCEPT AS OTHERWISE EXPRESSLY SET FORTH HEREIN AND IN SCHEDULE A or B (as
applicable) HERETO, PROVIDER DOES NOT WARRANT THAT THE PROVIDER SERVICES WILL BE
UNINTERRUPTED, ERROR-FREE, OR COMPLETELY SECURE. PROVIDER DOES NOT AND CANNOT
CONTROL THE FLOW OF DATA TO OR FROM ITS SUPPLIER'S SERVERS AND OTHER PORTIONS OF
THE INTERNET. SUCH FLOW DEPENDS IN LARGE PART ON THE PERFORMANCE OF SERVICES
PROVIDED OR CONTROLLED BY THIRD PARTIES. AT TIMES, ACTIONS OR INACTIONS CAUSED
BY THESE THIRD PARTIES CAN PRODUCE SITUATIONS IN WHICH PROVIDER SERVICES MAY BE
IMPAIRED OR DISRUPTED. ALTHOUGH PROVIDER WILL USE COMMERCIALLY REASONABLE
EFFORTS TO TAKE ACTIONS IT DEEMS APPROPRIATE TO REMEDY AND AVOID SUCH EVENTS,
PROVIDER CANNOT GUARANTEE THAT THEY WILL NOT OCCUR. ACCORDINGLY, PROVIDER
DISCLAIMS ANY AND ALL LIABILITY RESULTING FROM OR RELATED TO SUCH EVENTS, EXCEPT
AS PROVIDED IN SCHEDULE A or B (as applicable) HERETO. NEITHER PARTY WILL BE
RESPONSIBLE FOR ANY DAMAGE ANY END USER SUFERS FROM USE OF THE PROVIDER
SERVICES. THIS INCLUDES DAMAGES RESULTING FROM LOSS OF DATA DUE TO DELAYS,
NON-DELIVERIES, MIS-DELIVERIES, OR SERVICE INTERRUPTIONS. USE OF ANY INFORMATION
OBTAINED VIA USE OF THE PROVIDER SERVICES IS MADE AT THE END USER'S OWN RISK.
5.2 LIMITATION OF LIABILITY. IN NO EVENT SHALL EITHER PARTY BE LIABLE (WHETHER
IN CONTRACT, TORT OR OTHERWISE, INCLUDING NEGLIGENCE AND STRICT LIABILITY) FOR
ANY SPECIAL, INDIRECT, SPECULATIVE OR CONSEQUENTIAL DAMAGES WHATSOEVER,
INCLUDING BUT NOT LIMITED TO LOST PROFITS, LOST SAVINGS OR COSTS ATTRIBUTED TO
DELAYS OR LOSS OF TIME, EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE CLAIM OR OF
THE POSSIBILITY OF SUCH DAMAGES, AND IN NO EVENT SHALL EITHER PARTY BE LIABLE TO
THE OTHER FOR PUNITIVE DAMAGES. THE LIABILITY OF PROVIDER AND ITS SUPPLIERS
UNDER THIS AGREEMENT IS LIMITED TO PROVIDER'S OBLIGATIONS UNDER THE LIMITED
WARRANTY SET FORTH ABOVE. IN NO EVENT SHALL THE LIABILITY OF EITHER PARTY EXCEED
THE AMOUNT OF THE FEE PAID TO PROVIDER FOR THE PROVIDER SERVICE TO WHICH THE
SPECIFIC CLAIM RELATES.
6. TERM; TERMINATION.
6.1 Term; Automatic Renewal. This Agreement shall be for an initial term of (3)
three years from the Effective Date (the "Effective Date begins on the date of
execution of this agreement") and shall be automatically renewed for successive
one (1) year terms (each a "Renewal Term") unless either party provides written
notice by certified postal mail with return receipt, to the other party of its
intent not to renew the Agreement at least thirty (30) days prior to the end of
the Initial Term or any Renewal Term, as the case may be. Not withstanding the
foregoing, either party may terminate this Agreement for cause as provided under
Section 6.2, and either party may elect to terminate this Agreement without
cause as provided in Section 6.3.
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6.2 For Cause Termination. Either party may terminate this Agreement immediately
for cause and without penalty in the event (i) the other party breaches, in any
material respect, any of the terms and conditions of this Agreement and such
breach is not cured within thirty (30) days after written notice from the other
party specifying the nature of such breach; or (ii) the other party ceases
conducting business in the normal course, makes an assignment for the benefit of
creditors, or otherwise becomes a party to any judicial or administrative
proceeding in bankruptcy, receivership or reorganization for the benefit of
creditors. In the event that Customer has terminated this Agreement based on
Uron, Inc.'s failure to provide services, Customer shall only be obligated to
pay the monthly fee for the time period in which such services were actually
provided.
6.3 Termination without Cause. Either party may terminate this Agreement without
cause on thirty (30) days prior written notice.
6.4 Effect of Termination. Customer's payment obligations accrued prior to
termination or expiration of this Agreement shall survive such termination or
expiration of this agreement except as provided in 6.2 of this Agreement.
Sections 5, 7, 8, 9, 11 and 12 shall survive termination or expiration of this
Agreement.
7. CONFIDENTIALITY.
7.1 Each party agrees that information disclosed by one party under this
Agreement (the "Disclosing Party") to the other party (the "Receiving Party"),
including, without limitation, pricing, marketing plans, Customer or supplier
lists, methodologies, technology, and/or software, which information is
considered proprietary by the Disclosing Party, shall be considered
"Confidential Information" under this Agreement.
7.2 A Receiving Party shall not use the Disclosing Party's Confidential
Information in any manner or for any purpose not expressly set forth in this
agreement, and shall not disclose the Disclosing Party's Confidential
Information to any third party, without the Disclosing Party's prior written
consent, except as required by law or under order of court or government agency,
and then only if the Receiving Party gives the Disclosing Party at least ten
(10) days prior written notice before making any disclosure pursuant to such
order in order to afford such Disclosing Party the opportunity to attempt to
obtain a protective order. Each party agrees to exercise the same level of care
in protecting the Confidential Information of the other party from unauthorized
use and disclosure as it uses in connection with its own Confidential
Information, but in no event less than reasonable care.
7.3 Confidential Information will not include information that is (i) publicly
available, other than by breach of this Agreement, (ii) in the Receiving Party's
lawful possession prior to the Effective Date, (iii) obtained by the Receiving
Party from third parties without disclosure restrictions known to the Receiving
Party, or (iv) independently developed by the Receiving Party without reference
to the Disclosing Party's Confidential Information (as shown by that Receiving
Party's written records).
8 Service Levels
8.1 Performance Provider acknowledges that the Provider Services will be
"mission critical" to Customer's business and therefore will require the highest
quality of customer support and operation. In accordance with the Service Level
Specifications ("SLS") attached as Schedule A for dialup services and Schedule B
for Business Class DSL Services, Provider shall configure, maintain, upgrade,
monitor, modify and operate the computer equipment, servers, network equipment
and components, and telecommunications requirements (including, for all of the
foregoing, any and all associated functions, protocols, methodologies and
processes) at each Provider data center as necessary to fully operate and
support and provide the Services to Customer. Provider agrees to notify Customer
promptly of any factor, occurrence or event coming to its attention that may
affect Provider' ability to meet the service level described in the SLS, or that
is likely to cause any material interruption in the delivery of the Services.
8.2 Remedies In the event Provider fails to satisfy the material terms of the
SLS with respect to all or a portion of the Services, Customer shall have such
rights and remedies as are afforded to it by the SLS, this Agreement or, subject
to the limitations set forth in this Agreement, by Law.
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9 Transition of Services
9.1 General Upon the expiration of this Agreement due to a party's submission of
a notice of non-renewal pursuant to Section 6.1 or any termination of this
Agreement due to a party's default pursuant to Section 6.2, Provider shall
cooperate with Customer and its designee for a period not to exceed 180 days
from the effective date of such termination or such other period as agreed by
the parties in writing (the "Transition Period") for the orderly and seamless
transition and migration from the Services to Customer or another service
provider. During the Transition Period, the parties shall cooperate to develop a
transition plan for such transition. To the extent Customer requests that
Provider provide material personnel or other resources to assist in the
transition, Customer shall pay Provider for such assistance on a time and
materials basis at Provider's then prevailing rates generally applied to
Provider's other customers. The terms of this Agreement, including the licenses
granted by Provider and the obligation of Customer to pay for Services, shall
govern and apply during the Transition Period. Under no circumstances during the
Transition Period will Provider interfere with or otherwise disrupt the
Services.
10 Security Measures
10.1 Security Requirements Provider acknowledges that certain Confidential
Information of Customer will reside on Provider's equipment and facilities
(including any customer information and databases) and any unauthorized access
to such information by Provider's employees or any third party could severely
damage Customer. Accordingly, Provider shall use its best efforts to safeguard
and maintain security of the Provider data centers and to protect Customer's
Confidential Information, including, but not limited to, (a) physical security
of the facility where servers and computing equipment are maintained that permit
access only to authorized personnel, (b) network security restricting access to
personnel on a need-to-know basis, (c) baring connections of any data center to
the Internet or other public networks unless sufficient firewalls, proxy servers
and similar measures are used to prevent unauthorized access, and (d) other
business systems designed to optimize security. Subject to requirements of
applicable law, Provider shall, at Customer's direction, either return or
destroy all Confidential Information of Customer resident on or as part of the
Provider data centers and certify in writing to Customer such return or
destruction.
11 Indemnification Obligations
11.1 Provider Indemnification Provider will indemnify and hold harmless
Customer, its officers, directors, employees, customers and agents from any and
all claims, losses, liabilities, damages, expenses and costs (including
reasonable attorney's fees and court costs) which result from (i) all claims,
whether or not successfully proven, that assert facts which constitute (a) an
allegation of infringement arising from the Provider Services, or any element
thereof, on any third party intellectual property rights, or (b) a breach of any
of the representations, warranties or other obligations provided by Provider
hereunder; or (ii) the injury or death of any individual, or the loss of, damage
to or misappropriation of real or personal property, in digital or other form,
resulting from the negligent acts or omissions of Provider, its agent or
employees.
11.2 Customer Indemnification Customer will indemnify and hold harmless
Provider, its officers, directors, employees, customers and agents from any and
all claims, losses, liabilities, damages, expenses and costs (including
reasonable attorney's fees and court costs) which result from (i) all claims,
whether or not successfully proven, that assert facts which constitute a breach
of any of the representations, warranties or other obligations provided by
Customer hereunder; or (ii) the injury or death of any individual, or the loss
of, damage to or misappropriation of real or personal property, in digital or
other form, resulting from the negligent acts or omissions of Customer, its
agent or employees.
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11.3 Indemnification Procedure In the event Indemnification is sought Under this
Section 8, the party requesting such Indemnification (the "Indemnified Party")
shall (a) notify the other party (the "Indemnifying Party") within ten (10) days
of receiving notice of such claim, suit cause of action or action (the "Claim")
giving rise to the Indemnifying Party's indemnification obligations; (b) give
the Indemnifying Party sole authority to defend or settle the Claim, provided
however that the Indemnified Party shall be entitled to appear, defend and
protect its rights and interests, through settlement or otherwise, if the
Indemnified Party reasonably believes it has grounds for insecurity, and
provided further, however, that the Indemnifying Party shall not settle the
Claim without the prior written consent of the Indemnified Party, which consent
shall not be withheld unreasonably; and (c) responsibly cooperate and assist the
Indemnifying Party (including, but not limited to, providing all information
related to the Claim) at the Indemnifying Party's expense with defense of the
Claim.
12 MISCELLANEOUS
12.1 Assignment. Neither party may sell, assign, transfer, or otherwise convey
any right, duty, obligation, or interest under this Agreement without the prior
written consent of the other party. (which consent shall not unreasonably be
withheld); provided, that either party may assign this agreement to an affiliate
of such party without consent provided said affiliate is an economically viable
entity or person and certified financial statements on such affiliate is
provided to Provider and is acceptable to Provider in its form and content. For
purposes hereof, "affiliate" shall mean a person or entity that directly or
indirectly through one or more intermediaries, controls, or is controlled by, or
is under common control with, the party concerned. Additionally, Customer shall
have the right to assign this Agreement to an entity controlled by Customer's
franchisees.
12.2 Force Majeure. Neither party shall be considered in default under any
provision of this Agreement by reason of any delay or failure in its performance
of its obligations hereunder if such delay or failure is caused by events beyond
its reasonable control, including but not limited to acts of God or the public
enemy; riots or insurrections; war; accidents; fire; strikes; and other labor
difficulties (whether or not the party is in a position to concede to such
demands); embargoes; judicial action; lack of or inability to obtain export
permits or approvals, necessary labor, materials, energy, components, or
machinery; and acts of civil or military authorities; provided that, the
non-performing party gives prompt notice of such force majeure event to the
other party and makes all commercially reasonable efforts to remove such causes
of non performance promptly and perform whenever such force majeure event has
ceased. The time for any performance required hereunder shall be extended by the
delay incurred as a result of the events described above. In the event that the
force majeure event continues for greater than thirty (30) days, either party
may terminate this Agreement upon written notice to the other party, and upon
such termination, neither party shall have any further obligation nor liability
to the other except as set forth in Section 9.
12.3 Disaster Recovery. In the event of a disaster or catastrophe totally or
partially disabling Customer's computing or telecommunications capability or
Provider's ability to provide the Services, whether due to natural or man-made
causes, Provider agrees to use its best efforts to aid in the prompt restoration
of computing or telecommunications capability, including, but not limited to,
providing maintenance services, and providing technical assistance to Customer
in its attempts to Services. Customer shall be treated at least as favorably as
Provider's most favored customer in the event that the disaster or catastrophe
affects others. Customer and Provider shall negotiate in good faith to provide
reimbursement to Provider for the actual costs of time, materials, and shipping
involved in such emergency response.
12.4 Governing Law; Dispute Resolution. This Agreement and the rights of the
parties hereunder shall be governed by and interpreted in accordance with the
laws of the State of New York excluding its laws relating to conflicts of laws.
In the event of any dispute, controversy or claim arising out of or relating to
this Agreement, or the breach, termination or validity thereof, the Parties
shall first try in good faith to come to a settlement for such matter. If the
parties are unable in good faith to settle any such matter, such matter shall be
resolved exclusively by binding arbitration under the Greater Commercial Rules
of the American Arbitration Association, and judgment upon the award rendered
may be entered in any court of competent jurisdiction. The award may include
compensatory damages against either party but under no circumstances may the
arbitrator award punitive or multiple damages against either party. Arbitration
proceedings shall be conducted before one single arbitrator in New York area.
Each party hereby expressly waives their right to initiate legal proceedings for
other legal remedies, including, but not limited to, injunctive relief and
monetary damages, in any court, except to the extent it is required to enforce
the arbitration award; provided, however, that either party may seek temporary
injunctive relief to preserve the status quo pending resolution of the matter or
to prevent serious and irreparable injury to that party or others. The parties
shall continue to perform all obligations under this Agreement pending the above
described dispute resolution proceedings, subject to full reservation of rights
at law under this Agreement.
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ALL DISCUSSIONS AND DOCUMENTS PREPARED PURSUANT TO ANY ATTEMPT TO RESOLVE A
DISPUTE UNDER THIS SECTION ARE CONFIDENTIAL AND FOR SETTLEMENT PURPOSES ONLY AND
SHALL NOT BE ADMITTED IN ANY COURT OR OTHER FORUM AS AN ADMISSION OR OTHERWISE
AGAINST A PARTY FOR ANY PURPOSE INCLUDING THE APPLICABILITY OF FEDERAL AND STATE
COURT RULES.
12.5 Notices. All notices, requests and other communications under this
agreement must be in writing and must be mailed by certified mail, postage
prepaid and return receipt requested, delivered by hand or sent by Federal
Express or similar receipt-bearing courier service, to the party to whom such
notice is required or permitted to be given. If mailed, any such notice will be
considered to have been given five (5) business days after it was mailed, as
evidenced by the postmark. If delivered by hand, or sent by Federal Express or
similar receipt-bearing courier service, any such notice will be considered to
have been given when actually received by the party to whom notice is given, as
evidenced by written and dated receipt of the receiving party. In each case, any
such notice, request or other communication will be addressed to the respective
party at the addresses indicated in the preamble of this Agreement or to such
other addresses as may hereafter be indicated by notice delivered in accordance
with the terms hereof to the other party.
12.6 Severability. In case any provision of this Agreement shall be invalid,
illegal or unenforceable, such provision shall be construed so as to render it
enforceable and effective to the maximum extent possible in order to effectuate
the intention of this Agreement; and the validity, legality and enforceability
of the remaining provisions hereof shall not in any way be affected or impaired
thereby.
12.7 Delays or omissions. No delay or omission to exercise any right, power or
remedy accruing to a party under this Agreement shall impair any such right,
power or remedy of such party nor shall it be construed to be a waiver of any
such breach or default, or an acquiescence therein, or of any similar breach or
default thereafter occurring; nor shall any waiver of any single breach or
default be deemed a waiver of any other breach or default theretofore or
thereafter occurring. Any waiver, permit, consent or approval of any kind or
character on the part of either party of any breach or default under this
Agreement, or any waiver on the part of either party of any provisions or
conditions of this Agreement must be made in writing and shall be effective only
to the extent specifically set forth in such writing. All remedies, either under
this Agreement or by law or otherwise afforded to a party, shall be cumulative
and not alternative.
12.8 Government Contractor. As a federal Government Contractor or Subcontractor,
Doctor's Associates Inc. is required to and will comply with all of the
provisions of various federal laws, regulations and executive orders including
Executive Order 11246, The Rehabilitation Act of 1947 and the Vietnam Era
Veterans' Readjustment Assistance Act of 1974 and amended. Doctor's Associates
Inc. will not discriminate against any employee or applicant for employment
based on race, color, religion, national origin, sex, age disability or
veterans' status. We will take affirmative action to ensure that applicants are
employed and the employees are treated during employment without regard to their
race, color, religion, national origin, sex, age disability or veterans' status.
Doctor's Associates Inc. certifies it is in compliance with these laws. Doctor's
Associates Inc. is also bound to obtain similar certification from its
contractors and suppliers of goods and services in excess of specified dollar
amounts.
12.9 Privacy Policy. Uron, Inc. agrees to comply with Doctor's Associates Inc.
Internet Privacy Policy as posted on ▇▇▇.▇▇▇▇▇▇.▇▇▇.
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12.10 Binding Agreement. This Agreement shall be binding upon the parties hereto
and their respective successors and assigns as permitted hereunder. No person or
entity other than the parties hereto is or shall be entitled to bring any action
to enforce any provision of this Agreement against either of the parties hereto,
and the covenants and agreements set forth in this Agreement shall be solely for
the benefit of, and shall be enforceable only by, the parties hereto or their
respective successors and assigns as permitted hereunder.
12.11 Entire Agreement. This Agreement and any attached Schedules and Exhibits
constitute the entire understanding and agreement between the parties and
supersede any and all prior or contemporaneous oral or written communications
with respect to the subject matter hereof. This Agreement shall not be modified,
amended or in any way altered except by an instrument in writing signed by the
parties
12.12 Counterparts; Duly Authorized. This Agreement may be executed
simultaneously in two or more counterparts, each counterpart shall be deemed to
be an original, and all counterparts individually or together shall constitute
one and the same instrument. Each party represents and warrants that the person
whose signature appears below is duly authorized to enter into this agreement on
behalf of the party. In witness whereof, the parties have executed this
Agreement under seal as of the Effective Date.
Customer: Provider:
Doctor's Associates Inc. URON, Inc.
By: s/▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇ By:s/▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Print name: ____________________ Print name: ____________________
Title: Vice President Title: CEO
Date: March 4, 2004 Date: 2-26-04
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