Form CIC
CIBERLYNX INTERNET SERVICES AND EQUIPMENT
CONTRACT TERM COMMITMENT
This Agreement is made and entered into and between the undersigned,
Customer ("Customer"):
CiberLynx, Inc. ("CiberLynx"):
Trilogy
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and
A Florida Corporation,
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County of: Palm Beach
Effective Date: 8/6/99
and it sets forth the terms and conditions for the listed connection, as
provided by CiberLynx.
1. Service - CiberLynx shall provide access to its network pursuant to the
agreed upon specifications listed on Exhibit A, attached hereto. Maintenance of
the local circuit shall be the responsibility of the local carrier, and
CiberLynx shall not be responsible for service delays, disruption, loss, or
damage of any kind resulting from problems with the local circuit, or any long
distance affiliate.
2. Payment - The Initial Setup Fee of $0 and First Monthly Payment ("Monthly
Payment") of $395 shall be due upon execution of this Agreement. Failure of
Customer to make such payment up front will result in delay of service
connection, as CiberLynx will not order any services until such payment is
received. Applicable sales and gross receipts taxes may not be included in the
initial payment, but will, however, be included in Customer's first monthly
billing. CiberLynx will provide invoices to Customer for monthly services at
least one week in advance, prior to delivery of such service by CiberLynx (i.e.
Customer will be invoiced by January 23rd for February 1st - 28th, services).
Customer's Monthly Payment is due, in full, and without deductions or offset,
upon receipt of such Invoice. Failure of Customer to pay Monthly Payment when
due, or within five (5) days thereafter, shall constitute a default by Customer
and shall entitle CiberLynx to discontinue service without further notice.
CiberLynx may, in addition to other remedies, impose the maximum rate of
interest allowable by law on any overdue payments, partial payments or unpaid
balances thereof.
3. Installation of Service - CiberLynx will contact Customer upon receiving an
Installation Date by the local loop, or circuit provider. At this time, Customer
must commit to a date for which CiberLynx can connect Customer to complete the
Installation of Service(s). Customer agrees to have all necessary equipment
and/or personnel ready for the Installation of Service(s) by the agreed-upon
Installation Date. If Customer does not have the necessary equipment and/or
personnel ready for the Installation of Service(s) by the Installation Date, or
if Customer must change the Installation Date for any reason whatsoever,
Customer is liable for payment of the circuit, and for any other costs incurred
by CiberLynx in connection with Customer's Service(s) from the original,
agreed-upon Installation Date. This remains true whether Customer is fully
Installed or not. CiberLynx will ▇▇▇▇ the Customer for the partial Loop charge
by dividing the monthly Loop charge by thirty (30) days, and multiplying the
daily amount by the number of days between the Installation Date by the circuit
provider, and the Installation date by CiberLynx. This partial billing is due
upon receipt, and does not constitute the start of the contract term. The
contract term does not begin until Customer is fully connected with the
service(s) purchased. Any additional charges incurred by CiberLynx on Customer's
behalf, above and beyond the normal installation, or monthly access charges,
including additional wiring, services, or equipment supplied by the circuit
provider upon installation, or other service, will be passed on to Customer, and
will be due upon receipt.
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4. Domain Name Service - CiberLynx will provide primary Domain Name Service
(DNS) for one (1) Domain. Additional DNS domains must be purchased by Customer,
as well as any additional costs for the added domains. 5. Network Connection -
Only the directors, officers, and employees of Customer shall utilize the
Network connection provided by CiberLynx. However, customers of Customer may
have the ability to utilize and access Servers, Information, and other such
types of services contained on the Customer's connection. Except for assigning
IP addresses or DNS to customers in the normal course of business, Customer may
not sell, lease, license, rent, or assign the connection or any parts of the
connection to any party not named in this Agreement.
6. Equipment - All equipment needed for connection to CiberLynx will be
purchased and/or provided by Customer. The Customer hereby holds CiberLynx
harmless for any damage or injury to Customer's equipment or personnel resulting
from connection to CiberLynx.
7. Acceptable Use - Customer is prohibited from transmitting any communication
where the intention of the message, or its transmission or distribution, would
violate any U.S. Federal or State or Local law or regulation. Customer is
prohibited from transmitting any communication where its distribution would
likely be offensive to the recipient or recipients thereof. Customer shall
assure that its use of CiberLynx's network services shall not disrupt CiberLynx,
its associated networks, equipment, or any component part of the CiberLynx
system. "Bulk Messaging" is expressly prohibited under this Agreement. Use of
CiberLynx's connection in violation of any of the above mentioned manners may
result in cancellation of service, at the discretion of CiberLynx.
8. Liability of Warranties - Customer acknowledges that CiberLynx has made no
expressed or implied warranties (whether oral or written), including those of
merchantability or fitness, for any particular purpose with respect to the
services contemplated by this Agreement. Customer acknowledges that all services
are provided as is. CiberLynx does not warrant against interrupted operations of
service. CiberLynx specifically disclaims any liability for actual,
consequential or indirect damages suffered by Customer as a result of the
operation, or malfunction of the service, or delay in implementation,
reconfiguration, or repair of the service, in matters that are outside the
control of CiberLynx.
9. Remedies -
A. Customer:
Customer's remedy for any failure, or nonperformance of CiberLynx's connection
service shall consist of full restoration of Service by CiberLynx. In the event
that any interruption of service should exceed twenty-four (24) consecutive
hours, CiberLynx may disburse a pro-rata refund for any Customer prepaid fees
for the Service interruption. CiberLynx's liability for damages to Customer, or
its authorized users, and any other claims, regardless of the form of action,
shall be limited to the amount of charges paid by Customer for use of the
Service under this Agreement during the twelve month period preceding the date
of such breach.
B. CiberLynx:
CiberLynx's remedy for any failure, or nonperformance of this Agreement by
Customer depends on whether Service(s) have been provided, or not. If Service(s)
have not been performed by CiberLynx at the time of the Breach, then the remedy
is limited to the greater of: (1) The costs incurred by CiberLynx for
cancellation of any of Customer's Service(s), or (2) Forfeiture of Customer's
Initial Payment, or (3) The sum of $1,000.00 due and payable to CiberLynx upon
Cancellation of this Agreement, to cover the costs of CiberLynx's overhead
consumed for the partial performance of Customer's Agreement, and Cancellation
of such Agreement
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If the Service(s) have already been installed, or the Agreement has been
performed, or partially performed, at the time of Breach, then the remedy is
limited to: (1) Strict performance of the Agreement for the full term, or (2)
Restitution for the face value of the Agreement; that is, the total amount of
money that would have been received over the life of the Agreement, had the
Agreement been fully performed. Furthermore, if Customer does breach this
Agreement, for any reason whatsoever, and CiberLynx must pursue a claim for
Breach of Contract, or similar claim, in a court of law, or any other legal
proceedings, Customer agrees to pay for all costs of pursuing such claim.
10. Indemnification - Customer shall indemnify and hold CiberLynx harmless from
and against all liabilities, claims, damages, causes of action, losses, expenses
and judgements (including attorney's fees) arising out of, or in connection
with, the services to be provided under this agreement. Notwithstanding the
foregoing, CiberLynx can not be held responsible for performing its obligation
when its services are delayed or hindered by war, riots, embargoes, strikes,
acts of God, or actions or inactions of third parties (including interruption of
phone services). CiberLynx may cancel or delay performance, as long as such
performance is delayed by the above mentioned occurrence or occurrences. In such
event, CiberLynx shall have no liability to Customer.
11. Termination - CiberLynx may terminate this Agreement, in its sole
discretion, in whole or in part, or suspend the Service at any time upon: (a)
any failure of Customer to pay any amount due hereunder, (b) any Customer breach
of any material part of this agreement, (c) any insolvency, bankruptcy,
assignment for benefit of creditors, reorganization, liquidation, or proceeding
or similar events with respect to Customer, or (d) any governmental or other
regulation, that require alterations of the Services provided hereunder, or any
violation of applicable law, rule or regulation. No such termination shall
relieve Customer of its obligation under this Agreement, including and without
limitations, the obligation to make payments for the Service provided prior to
termination. The rights and obligations of the parties shall survive such
termination or other cancellations of this Agreement.
12. Automatic Renewal - CiberLynx will automatically renew this contract for the
length of the Agreement unless written notice is provided by either party to the
other party at least sixty (60) days prior to the anniversary of the Effective
Date.
13. Assignment - This Agreement may not be assigned or transferred by Customer
without the prior written consent of CiberLynx.
14. Entire Agreement - CiberLynx and Customer hereby agree and stipulate that
this contract and addendum represent the entire agreement between the parties
hereto, and it supersedes all prior written and/or oral communications.
15. Arbitration of Disputes - If any dispute or controversy arises in connection
with this Agreement, whether such dispute arises before, or after the Closing,
and the parties hereto are unable to settle the dispute or controversy
themselves, the parties hereto agree that such dispute or controversy shall be
resolved by a panel of arbitrators in Fort Lauderdale, Florida. This is pursuant
to the Commercial Arbitration Rules of the American Arbitration Association. The
decision of the arbitrators shall be final, binding, may not be appealed and
may, in the discretion of the arbitrators, include a provision for costs and
attorneys' fees. Upon mutual agreement, the parties may elect to waive this
provision and proceed to litigate their respective claims in a court of law.
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16. Acceptance - By signing below, you acknowledge your review and acceptance of
the terms and conditions contained in this document. This Agreement can only be
modified in a written document executed by both parties. Any attempts to make
modifications to these terms and conditions are void, and will not be
enforceable.
Exhibit "A"
CiberLynx Service Level Agreement
This is an addendum to Section 1 (Service) of Form CIC, CiberLynx Internet
Services and Equipment Contract.
1. Service - CiberLynx shall provide access to its Network pursuant to the
agreed upon specifications listed in this contract. Maintenance of the local
circuit shall be the responsibility of the local carrier. However, CiberLynx
will guarantee the following Service Level Agreement, hereafter referred to as
"SLA", to all its clients with term commitments of one or more years. The SLAs
offer the following guarantees:
* 99.99% availability to the CiberLynx Internet data backbone Network
* Median monthly latency of no more than 75 milliseconds roundtrip within
CiberLynx's backbone inside the United States * Delivery, or throughput
rates, of 99.99% of Frame Relay and Internet packets within the CiberLynx
data backbone Network
* Service installation, or provisioning, by the quoted date
* Service Level Agreement Compensation Schedule
* Client will receive a credit of one day's service on their next month's
invoice for each incident of downtime that is longer than 15 minutes, and
shorter than 4 hours * Client will receive a credit of two day's service on
their next months invoice for each incident of downtime extending past 4
hours * Client will receive a credit for a day's service fee if CiberLynx
does not meet the latency guarantee for two consecutive months * Client
will receive a credit for 50% of installation service fee if CiberLynx does
not install necessary equipment and software by the scheduled due date.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed as of the first day and year written above:
Services Provided: 512kb port to Internet, Bump up existing circuit from 256kb
Fees:$395.00 per month
Terms:1yr
Customer: CiberLynx, Inc., a Florida Corporation:
By:__________________ __ By: ______________________
Name: __________________ Name: ▇▇▇▇ ▇▇▇▇▇▇
Title: ___________________ Title: Senior Account Executive
Date: ___________________ Date: 8/6/99
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