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WHOLESALE USAGE AGREEMENT
PSINET INC. RETAILER: FLASHNET COMMUNICATIONS, INC.
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇ Address: ▇▇▇▇ ▇. ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇.
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ Ft. ▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Phone:▇▇▇.▇▇▇.▇▇▇▇▇▇▇▇▇▇▇ Phone: ▇▇▇.▇▇▇.▇▇▇▇
Facsimile:703.397.5318 Facsimile: 817.332.9594
▇▇▇▇@▇▇▇.▇▇▇ Electronic Mail: ▇▇▇▇▇@▇▇▇▇▇.▇▇▇
BUSINESS CONTACT: ▇▇▇▇▇▇ ▇▇▇▇▇▇ BUSINESS CONTACT: ▇▇▇▇▇ ▇▇▇▇▇▇
Title: ACCOUNT EXECUTIVE Title: PRESIDENT
TECHNICAL CONTACT: ▇▇▇ ▇▇▇▇▇▇ TECHNICAL CONTACT: ▇▇▇▇▇ ▇▇▇▇▇▇▇ EXT. 242
Title: Wholesale Support Coordinator ▇▇▇ ▇▇▇▇▇▇▇▇ EXT. 229
Phone: ▇▇▇.▇▇▇.▇▇▇▇ ----------------------
Title: V.P. Sys Ops
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Phone: 888 FLASHNET,
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Fax: ▇▇▇ ▇▇▇-▇▇▇▇
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THIS AGREEMENT is made by and between PSINet Inc., a State of New York
corporation. ("PSINet") and the wholesale dialup services customer
("Retailer") of PSINet's wide-area computer network system in order for
Retailer to obtain from PSINet access to the PSINet's network and the
Internet for the benefit of Retailer's individual customers desiring dialup
or "switched" network access ("Access") as further described below. In
consideration of the mutual promises and covenants contained herein, the
parties agree, intending to be legally bound, as follows:
1. DEFINITIONS. The following terms shall have the following meanings for
purposes of this Agreement:
1.1 "AUTHORIZED USER" shall mean any person authorized by a Subscriber to
have an account on a Host. Retailer may not permit any person or entity
other than an Authorized User to Access to the Network, except with the
written consent of PSINet. No person may be authorized to use the Network
by means of a connection between a Host owned or leased by a Subscriber and
a Host owned or leased by a person other than a Subscriber.
1.2 "EFFECTIVE DATE" of this Agreement is the date accompanying the last
Party to sign's signature.
1.3 "HOST" shall mean a computer with a network (or IP) address.
1.4 "▇▇▇▇" is any name, logo, trade name, trademark, copyright, service
▇▇▇▇ or other intellectual property right owned by PSINet or its Suppliers.
1.5 "NETWORK" shall mean the combination of computer hardware, computer
software programs and data transmission facilities operated by PSINet (or
its duly authorized subcontractors) which will permit computers operated by
Subscribers to communicate with computers at remote locations which are
operated by others via the TCP/IP communications protocol and to provide
access to Internet.
1.6 "POP" shall mean a Network point-of-presence where PSINet equipment
will be located and these POPs will be positioned throughout the world in
order to provide Authorized Users Access via telephone calls.
1.7 "SUBSCRIBER" shall mean any individual person authorized by Retailer
to have Access to the Network, although this Access is not to be used with
Local Area Network (LAN) applications. Retailer may not permit any entity
other than a Subscriber to have Access to the Network, except with the
written consent of PSINet.
PSINET WHOLESALE USAGE AGREEMENT WITH FLASHNET
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2. PSINET OBLIGATIONS.
2.1 GENERAL. PSINet agrees to provide Retailer with Access for Subscribers
to the Network and the Internet. The fees to be paid by Retailer to PSINet
for such Access services are set forth below in Section 4.
2.2 PROVISION OF ACCESS. Throughout the term of this Agreement, PSINet
shall provide Subscribers with Access at the levels then provided and
supported by PSINet. A recent estimated listing of Network POPs can be
retrieved through access to PSINet's world-wide web site at
'▇▇▇▇://▇▇▇.▇▇▇.▇▇▇'. PSINet reserves the right to install new POPs and/or
to close existing POPs as it, in its sole discretion, deems appropriate. In
the event PSINet deems it necessary to close an existing POP, PSINet shall
provide Retailer with thirty (30) days written notice thereof. Retailer may
order such Access on behalf of its present or future Subscribers and there
shall be no limit on the number of Subscribers who may use the Network;
provided, however, that PSINet may refuse service to Retailer because there
is insufficient capacity on the Network or in the POP to provide the Access
amount requested. In the event PSINet determines there to be such lack of
capacity, then the provisions of Section 4.10 herein do not apply to the
effected POP during any month for which such insufficient capacity occurs.
2.3 ISDN SERVICE. PSINet shall also make ISDN 64k and 128k Internet
connection services available to Retailer for Subscribers. The fees to be
paid by Retailer for such services are set forth below.
2.4 QUALITY OF SERVICE. PSINet shall provide to Retailer (for its
Subscribers) Internet connection services that meet reasonable commercial
standards, including, but not limited to, accessibility, latency, packet
loss, and throughput. PSINet shall keep and maintain its Network in good
condition and repair. The Network shall be properly maintained, serviced
and upgraded by PSINet as it, in its sole discretion, shall determine is
necessary in order to ensure connectivity to Subscribers. PSINet shall
maintain its Network to ensure at least 99% availability.
2.5 REPORTS AND INFORMATION REGARDING SERVICE.
2.5.1 ACCESS TO NETWORK MONITORING SYSTEMS. PSINet shall provide
Retailer with read-only access to all applicable network monitoring
systems used by PSINet to monitor the Network.
2.5.2 PSINET NETWORK OUTAGES. PSINet shall provide to Retailer
prompt notification of any Network outages that affect Subscribers.
When possible, at least three days in advance notice of planned
outages shall be given to Retailer so that Subscribers may be alerted.
2.6 PSINET TECHNICAL SUPPORT. PSINet agrees to provide Retailer, at no
additional charge, reasonable back-end technical support and problem
escalation support for Access and Network WHICH SHALL BE AVAILABLE 24X7.
However, under no circumstances is PSINet obligated to provide technical
support and problem escalation support to Subscribers.
2.7 TERMINATION OF ACCESS. PSINet shall terminate the Access rights of any
Subscriber as soon as is reasonably practicable upon written notice from
Retailer to do so or upon mutually agreed upon electronic process with
receipt confirmed, but shall have no liability in connection therewith.
SUCH ELECTRONIC PROCESS SHALL PROVIDE RETAILER WITH THE ABILITY TO ADD OR
DELETE SUBSCRIBERS IN A NEAR REAL-TIME BASIS.
Further, Retailer and its Subscribers are required to comply with
PSINet's Net-Abuse Policy ("Policy") as currently set forth on PSINet's
Web site (▇▇▇▇://▇▇▇.▇▇▇.▇▇▇/▇▇▇/▇▇▇▇▇▇▇▇.▇▇▇▇) and as the Policy may be
modified by PSINet in its sole discretion from time to time. Any
content, material, message, or data made available or transmitted
through the Network, wherever it is sent from, viewed, received, or
retrieved, that is in violation of (i) any local, state, federal or
international law, regulation or treaty; (ii) the Policy; or (iii) any
community standard or accepted Internet policy is prohibited. In the
event of violation of the foregoing by any Subscriber, PSINet will
advise Retailer accordingly, and PSINet reserves the right, in its sole
discretion, to terminate such Subscribers Access immediately with
written notice to Retailer. In the event of violation of the foregoing
by Retailer THEMSELVES, PSINet may deem such violation a material breach
of this Agreement and may, in its sole discretion, terminate this
Agreement with written notice to Retailer, but without the cure period
specified in Section 5 below.
3. RETAILER OBLIGATIONS.
PSINET WHOLESALE USAGE AGREEMENT WITH FLASHNET
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3.1 RETAILER RESPONSIBILITY FOR ITS SUBSCRIBERS. Retailer shall be
responsible for all customer support, pricing and service plans, billing
and collections with respect to its own Subscribers.
3.2 RETAILER CONNECTION TO THE NETWORK. Retailer shall provide, at its own
expense, the telecommunications circuit for its connection to the Network
which shall run between the best suited PSINet POP (as determined by
PSINet) and the Retailer's operations center (which includes the local
telephone company or Competitive Access Provider circuits). In addition,
Retailer shall provide an estimate of the traffic it anticipates between
Retailer's network and PSINet's Network.
3.3 SUBSCRIBER EQUIPMENT. PSINet shall not be responsible for the
installation, operation or maintenance of any computer equipment or
computer software programs provided by Retailer or any Subscriber.
3.4 OPTIONAL PEERING. In addition to the connection of Retailer's network
and PSINet's Network as set forth in Section 3.2, Retailer may, but shall
not be obligated to, provide telecommunications circuits interconnecting
Retailer's network with the Network at a location or locations agreed upon
by the parties. The parties will use these circuits only for traffic
originating within one party's network (or the networks of its Subscribers)
and destined only to the other party's network (or the networks of its
Subscribers) in accordance with PSINet's "ISP Peering Agreement" which
shall be incorporated herein in the event of such optional peering.
3.5 REQUIRED FORECAST. RETAILER SHALL PROVIDE TO PSINET, ON A MONTHLY
BASIS A FOUR-MONTH ROLLING FORECAST OF THE ESTIMATED NUMBER OF SUBSCRIBERS
THAT WILL BE SERVED BY EACH POP. RETAILER AGREES TO PROVIDE PSINET WITH
THE FORECAST NO LATER THAN FIRST OF EACH MONTH DURING THE TERM OF THIS
AGREEMENT. RETAILER AND PSINET WILL WORK CLOSELY TO ENSURE ACCURACY OF
THESE FORECASTS. IF RETAILER CHANGES THE CURRENT USAGE PLANS OR IMPLEMENTS
NEW ONES, THE PARTIES AGREE TO NEGOTIATE IN GOOD FAITH ANY APPROPRIATE
CHANGES IN THE INDEX FACTORS TO REFLECT SUCH CHANGES.
4. PRICE AND PRICING TERMS.
4.1 ADVANCED PAYMENT. Retailer agrees to pay to PSINet in advance of
Retailer's first Subscriber subscribing to the Network a one-time,
non-refundable fee of (Confidential treatment has been requested). This
fee shall be applied to future, monthly Base Charge payments after the
Ramp Period as set forth below in this Section.
4.2 BASE CHARGE. Upon the Effective Date, and on the first day of each
month thereafter throughout the initial or any successive terms of this
Agreement, Retailer agrees to pay PSINet for each Subscriber who is then
or was at any time during the immediately preceding month authorized to
use the Network a Base Charge pursuant to the following schedule and
subject to adjustments as provided below:
TOTAL # OF SUBSCRIBERS USING THE NETWORK APPLICABLE BASE CHARGE
(Confidential treatment (Confidential treatment
has been requested) has been requested)
additional adjustment
ADDITIONAL ISDN CHARGES:
Initial-B-channel ISDN line (64Kbps)
for up to 100 hours per month Same as above
Additional Hours (above 100) Same as above
(Confidential treatment (Confidential treatment
has been requested) has been requested)
(Confidential treatment
has been requested) (all
usage)*
PSINET WHOLESALE USAGE AGREEMENT WITH FLASHNET
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* In one-minute increments rounded upward
* ISDN pricing will be in addition to the applicable Base Charges.
The applicable Base Charge above is to be applied to all Subscribers
irrespective of the rate that previously was applied to that group of
Subscribers. For example, if there are a sufficient number of Subscribers
to satisfy the second-tier pricing requirement, the applicable Base Charge
shall apply to all Subscriber Base Charges. Should the amount of
Subscribers subsequently fall below such tier, incurring a higher Base
Charge, the applicable Base Charge shall be adjusted to the higher Base
Charge for all Subscribers as indicated in this section.
The payment to be made for the initial month of Access for any Subscriber
shall include (i) an amount equal to the applicable Base Charge for such
initial month, prorated in the case of a partial month, and (ii) an amount
equal to such Base Charge as payment in advance for the next month of
Access. If one of the Subscribers cancels service within any month, there
will either be no charge or a pro-rated charge depending upon the time of
that Subscriber's service cancellation within that month.
4.3 ADJUSTMENTS TO BASE CHARGE.
4.3.1 INTERNATIONAL CHARGES. Retailer and its Subscribers may also
have Access from any PSINet POP in Canada for an additional fee of
(Confidential treatment has been requested) US per hour added to the
Base Charge (calculated in one minute increments rounded upward), and
from any PSINet POP outside of the US and Canada for an additional
fee of (Confidential treatment has been requested) US per hour added
to the Base Charge (calculated in one minute increments rounded
upward).
4.3.2 "TOLL-FREE" CHARGES. Retailer and its Subscribers may also
access the Network using a "toll free" PSINet POP (for example, using
an 800 or 888 number) within the contiguous 48 states of the United
States for an additional fee of $(Confidential treatment has been
requested) per hour added to the Base Charge (calculated in one
minute increments rounded upward).
4.3.3 ADDITIONAL ADJUSTMENT. Once the number of Subscribers using
the Network exceeds (Confidential treatment has been requested), the
parties will negotiate in good faith to agree upon an appropriate
adjustment to the applicable Base Charge.
4.4 MINIMUM COMMITMENT.
4.4.1 RAMP PERIOD. The initial ten (10) months from the Effective
Date hereinafter defines the "Ramp Period". The minimum number of
Subscribers on a monthly basis during the Ramp Period shall be
projected as follows:
Month 1:(Confidential Month 2:(Confidential Month 3:(Confidential Month 4:(Confidential
treatment has treatment has treatment has treatment has
been requested) been requested) been requested) been requested)
Month 5:(Confidential Month 6:(Confidential Month 7:(Confidential Month 8:(Confidential
treatment has treatment has treatment has treatment has
been requested) been requested) been requested) been requested)
Month 9:(Confidential Month 10:(Confidential
treatment has treatment has
been requested) been requested)
PSINet and Retailer agree that these numbers will serve as a gauge of
the success of the program during the Ramp Period.
4.4.2 MINIMUM AMOUNTS. The minimum monthly revenue from Retailer
for Access provided by PSINet for Subscribers pursuant to this
Agreement shall be (Confidential treatment has been requested) after
the Ramp Period mentioned above. In the event PSINet's gross revenues
from Retailer (Confidential treatment has been requested).
In the event that PSINet chooses not to purchase the subscribers and
Retailer chooses not to remit to PSINet the amount stated above in
subparagraph (a), this Agreement shall be terminated; provided,
however, that PSINet shall continue to service, and Retailer shall
continue to pay for, the Subscribers at the highest Base Charge
specified in Section 4.2 hereof for a period of sixty (60) days
following such failure by Retailer to provide the minimum monthly
revenue payment in order to assure a smooth transition for said
Subscribers.
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4.5 TAXES. Retailer shall be liable for and shall reimburse PSINet for all
taxes and related charges however designated resulting from the
transactions contemplated HEREIN BY RETAILER OR SUBSCRIBERS (except those
relating to PSINet's gross income), including federal, state, provincial or
local sales, use or value-added taxes (VAT) and excise taxes, imposed in
connection with or arising from the provision of Access.
4.6 INVOICES. PSINet shall invoice Retailer monthly in advance for all
charges under this Agreement. All invoices will be payable within thirty
(30) days of receipt of invoice. Invoices not paid by their due date shall
be subject to a 1.5% per month interest fee, or the maximum extent allowed
by applicable laws, whichever is less, on all past-due balances. In the
event PSINet incurs additional fees as a result of any collection activity,
such as collection agencies or legal fees, Retailer shall reimburse PSINet
for all such fees. In the event Retailer shall fail to pay PSINet any
amount due under this Agreement for a period of thirty (30) days, PSINet,
in addition to charging applicable delinquency fees, may discontinue
providing Access to Retailer and its Subscribers UPON ONE (1) WEEK prior
written notice by overnight courier or certified mail to Retailer. PSINet
shall resume providing Access immediately upon receipt of such payment and
in such event Retailer shall pay PSINet a reasonable reconnection fee.
4.7 SUBSCRIBER CHARGES. Retailer is solely responsible for establishing
and collecting its Subscriber charges for services it offers its
Subscribers through the Network and for preparing and mailing invoices to
its Subscribers. Retailer is responsible for payment of the total amounts
invoiced it by PSINet (except for any amounts disputed by Retailer in good
faith) regardless of whether Retailer is paid by its Subscribers.
4.8 PORT QUANTITIES. PSINET WILL MAKE BEST EFFORTS THAT IF ACTUAL NUMBER OF
SUBSCRIBERS ON A GIVEN POP AT THE BEGINNING OF THE MONTH MULTIPLIED BY THE
INDEX FACTORS (THE "ACTUAL INDEXED NUMBER") IS NO MORE THAN TEN PERCENT
GREATER THAN THE FORECASTED INDEXED NUMBER PROVIDED SIXTY (60) DAYS PRIOR
TO THE BEGINNING OF SUCH MONTH, THEN SUBSCRIBERS IN THAT PSINET POP WILL
ENCOUNTER NO MORE THAN TEN (10) BUSY SIGNALS AS A RESULT OF FACTORS
REASONABLY WITHIN THE CONTROL OF PSINET.
5. USE OF MARKS. NEITHER PARTY IS AUTHORIZED THROUGH THIS AGREEMENT TO USE
THE OTHER PARTY'S MARKS IN CONNECTION WITH THEIR SALES, ADVERTISEMENTS AND
PROMOTION OF ITS SERVICES TO SUBSCRIBERS, EXCEPT IN MATERIALS EITHER PROVIDED
OR APPROVED BY THE AUTHORIZED USER OF THE ▇▇▇▇ ▇▇▇▇▇ TO IT'S USE. EACH PARTY
SHALL SEND TO THE OTHER PARTY A COPY OF ANY PRINTED MATERIAL USING THE OTHER
PARTY'S ▇▇▇▇ OR OTHER COPYRIGHTED MATERIAL, AND THE AUTHORIZED PARTY SHALL
HAVE THE RIGHT TO DISAPPROVE SUCH USE (ALTHOUGH APPROVAL SHALL NOT BE
UNREASONABLY WITHHELD OR DELAYED). UPON TERMINATION OF THIS AGREEMENT, EACH
PARTY SHALL CEASE TO USE ANY SUCH MARKS OR COPYRIGHTED MATERIAL AND SHALL,
WITHIN A REASONABLE TIME AGREEABLE TO THE AUTHORIZED PARTY, REMOVE ANY
REFERENCE TO AUTHORIZED PARTY FROM ITS ADVERTISING AND PROMOTIONAL MATERIAL.
6. TERM/EXTENSION/TERMINATION. The term of this Agreement shall be two (2)
years, commencing on the last day of the Ramp Period as defined above, and,
unless either party notifies the other in writing not less than ninety (90)
days prior to the end of the initial term or any extension thereof, this
Agreement shall be automatically renewed annually thereafter for a period of
one year.
Either party may terminate this Agreement if such other party has materially
breached this Agreement and has failed to cure such breach within thirty (30)
days after receiving written notice clearly specifying such breach; provided,
however, that this notice period shall not apply to a termination by PSINet
in accordance with the provisions of Section 2.7, 4.4.2 and/or 4.6.
6. WARRANTIES EXCLUDED. EXCEPT AS EXPRESSLY PROVIDED HEREIN, PSINET MAKES
NO WARRANTIES IN CONNECTION WITH ITS NETWORK OR THE PROVISION OF ACCESS AS
CONTEMPLATED HEREIN, WHETHER WRITTEN OR ORAL, STATUTORY, EXPRESS OR IMPLIED,
INCLUDING WITHOUT LIMITATION THE WARRANTY OF MERCHANTABILITY, THE WARRANTY OF
FITNESS FOR A PARTICULAR PURPOSE OR USE AND NON-INFRINGEMENT OF THIRD PARTY
RIGHTS.
7. LIMITATION OF LIABILITY. NOTWITHSTANDING ANYTHING CONTAINED IN THIS
AGREEMENT TO THE CONTRARY, THE PARTIES AGREE THAT PSINET SHALL IN NO EVENT BE
LIABLE TO RETAILER, ITS SUBSCRIBERS OR ANY OTHER PERSON FOR ANY ACTUAL,
DIRECT, INDIRECT, CONSEQUENTIAL, SPECIAL, INCIDENTAL, RELIANCE, PUNITIVE OR
ANY OTHER DAMAGES OF ANY KIND OR NATURE WHATSOEVER (INCLUDING, WITHOUT
LIMITATION, DAMAGES FOR THE LOSS OF DATA, GOODWILL OR PROFITS) REGARDLESS OF
THE FORESEEABILITY THEREOF, ARISING OUT OF THE PROVISION OF ACCESS OR IN ANY
WAY ARISING OUT OF THIS AGREEMENT, WHETHER IN AN ACTION ARISING OUT OF
PSINET WHOLESALE USAGE AGREEMENT WITH FLASHNET
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BREACH OF CONTRACT, BREACH OF WARRANTY, DELAY, NEGLIGENCE, STRICT TORT
LIABILITY, PATENT MATTERS OR ANY OTHER THEORY. NO ACTION OR PROCEEDING
AGAINST PSINET MAY BE COMMENCED MORE THAN TWO YEARS AFTER THE SERVICES ARE
RENDERED. THIS CLAUSE SHALL SURVIVE FAILURE OF AN EXCLUSIVE REMEDY.
7. INDEMNIFICATION.
7.1 BY RETAILER. RETAILER SHALL INDEMNIFY AND HOLD HARMLESS PSINET AND
PSINET'S DIRECTORS, OFFICERS, EMPLOYEES, AGENTS AND ADVISORS FROM AND
AGAINST ANY AND ALL CLAIMS OF OTHER PERSONS OR ENTITIES ARISING OUT OF
MATERIAL, DATA, INFORMATION OR OTHER CONTENT TRANSMITTED BY SUBSCRIBERS OR
OTHER ACTS OR OMISSIONS OF RETAILER AND/OR ITS SUBSCRIBERS.
7.2 BY PSINET. PSINET SHALL INDEMNIFY AND HOLD HARMLESS RETAILER AND ITS
DIRECTORS, OFFICERS, EMPLOYEES, AGENTS AND ADVISORS FROM AND AGAINST ANY
AND ALL CLAIMS OF OTHER PERSONS OR ENTITIES ARISING OUT OF ACTS OR
OMISSIONS OF PSINET.
10. CONFIDENTIAL INFORMATION. The provisions in the Bilateral Nondisclosure
Agreement executed between the parties shall apply to the terms of this
Agreement and shall survive the execution and termination of this Agreement
for any reason.
11. MISCELLANEOUS.
11.1 INDEPENDENT PARTIES/NO AGENCY. The relationship of PSINet and Retailer
shall be that of independent third parties. Except as otherwise expressly
provided in this Agreement, this Agreement does not Constitute either party
as the agent or legal representative of the other party and does not create
a partnership or joint venture between the parties. Except as otherwise
expressly provided in this Agreement, neither party shall have any
authority to contract for or bind any other party in any manner whatsoever.
This Agreement confers no rights of any kind upon any third party.
11.2 FORCE MAJEURE. PSINet shall not be liable for failure to fulfill its
obligations hereunder if such failure is due to causes beyond its
reasonable control, including, without limitation, actions or failures to
act of Retailer or any Subscriber, acts of God, fire, catastrophe,
governmental prohibitions or regulations, viruses which did not result from
the acts or omissions of PSINet, its employees or agents, national
emergencies, insurrections, riots or wars, or strikes, lockouts, work
stoppages or other labor difficulties. The time for any performance
required hereunder shall be extended by the delay incurred as a result of
such act of force majeure, and PSINet shall act with diligence to correct
such force majeure.
11.3 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 or
in 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.
11.4 BENEFIT AND ASSIGNMENT. NEITHER PARTY MAY SELL, TRANSFER, OR ASSIGN
THIS AGREEMENT, EXCEPT TO ENTITIES COMPLETELY CONTROLLING OR CONTROLLED BY
THAT PARTY, OR TO ENTITIES ACQUIRING ALL OR SUBSTANTIALLY ALL OF ITS
ASSETS, WITHOUT THE PRIOR WRITTEN CONSENT OF THE OTHER, WHICH CONSENT SHALL
NOT BE UNREASONABLY WITHHELD OR DELAYED. ANY ACT IN DEROGATION OF THE
FOREGOING SHALL BE NULL AND VOID; PROVIDED, HOWEVER, THAT ANY SUCH
ASSIGNMENT SHALL NOT RELIEVE THE ASSIGNING PARTY OF ITS OBLIGATIONS
HEREUNDER. BOTH PARTIES SHALL REQUIRE WRITTEN NOTICE IN THE EVENT OF ANY
ASSIGNMENT BY THE OTHER PARTY. This Agreement shall be binding upon and
shall inure to the benefit of 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 any of
PSINET WHOLESALE USAGE AGREEMENT WITH FLASHNET
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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.
11.5 ADDITIONAL ACTIONS, DOCUMENTS AND INFORMATION. Each of the parties
hereto agrees that it will, at any time, prior to, at or after the date
hereof, take or cause to be taken such further actions, and execute,
deliver and file or cause to be executed, delivered and filed such further
documents and instruments and obtain such consents, as may be reasonably
requested in order to fully effectuate the purposes, terms and conditions
of this Agreement.
11.6 NOTICES.
(a) All notices and other communications required or permitted
hereunder shall be in writing and shall be mailed by certified or
registered mail (return receipt requested), express air courier,
charges prepaid, or facsimile addressed as follows:
To Retailer: as specified above.
To PSINet:
PSINet Inc. with copy to PSINet Inc.
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Facsimile: 703.397.5318 Facsimile: 703.904.4200
Attn: ▇▇▇▇ ▇▇▇▇▇, Vice President, Attn: General Counsel
Carrier & ISP Division
or to such other address as either party shall have furnished to
the other in writing.
(b) If a notice is given by either party by certified or
registered mail, it will be deemed received by the other party on
the third business day following the date on which it is
deposited for mailing. If a notice is given by either party by
air express courier, it will be deemed received by the other
party on the next business day following the date on which it is
provided to the air express courier. If a notice is given by
facsimile, it will be deemed received by the other party after
confirmation of receipt. Notwithstanding the foregoing, any
payments made under this Agreement shall be deemed received only
when actually received.
11.7 COMPLIANCE WITH LAW. BOTH PARTIES ARE responsible for complying with
all applicable rules, regulations, statutes, codes, ordinances and other
requirements, whether federal, state, provincial, local, international or
otherwise in connection with the matters contemplated by this Agreement.
11.8 SEVERABILITY/SURVIVAL/WAIVERS. 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
if such provision shall be wholly invalid, illegal or unenforceable, the
validity, legality and enforceability of the remaining provisions hereof
shall not in any way be affected or impaired thereby. The parties' rights
and obligations that, by their nature, would continue beyond the
termination, cancellation, or expiration of this Agreement, shall survive
such termination, cancellation or termination. The waiver or failure of
either party to exercise in any respect any right provided for in this
Agreement shall not be deemed a waiver of any further right under this
Agreement.
11.9 TITLES AND SUBTITLES. The titles of the Sections of this Agreement are
for convenience of reference only and are not to be considered in
construing this Agreement.
11.10 GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY THE
SUBSTANTIVE LAW OF THE STATE OF NEW YORK WITHOUT REFERENCE TO ITS
PRINCIPLES OF CONFLICTS OF LAW.
11.11 ENTIRE AGREEMENT/AMENDMENTS. This Agreement represents the
complete agreement and understanding of the parties with respect to the
subject matter herein, and supersedes any other agreement or understanding,
written or oral. In the event of any conflict arising between Customer's
purchase order terms and this Agreement, this Agreement shall take
precedence. This Agreement may be modified only in writing signed by both
parties.
PSINET WHOLESALE USAGE AGREEMENT WITH FLASHNET
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BOTH PARTIES REPRESENT AND WARRANT THAT THEY HAVE FULL CORPORATE POWER AND
AUTHORITY TO EXECUTE AND DELIVER THIS AGREEMENT AND TO PERFORM THEIR
OBLIGATIONS HEREUNDER, AND 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 ENTERED INTO AGREEMENT AS OF THE DATE SET
FORTH:
/s/ M. ▇▇▇▇▇ ▇▇▇▇▇▇, President
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Authorized Retailer Representative/Title (please type or print)
/s/ [illegible] 2/13/98
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Retailer Signature Date
▇▇▇▇ ▇. ▇▇▇▇▇, VP, Carrier and ISP Sales
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Authorized PSINet Representative (please type or print)
/s/ [illegible] 2/17/98
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PSINet Representative Signature Date
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PSINet
PSINET WHOLESALE USAGE AGREEMENT WITH FLASHNET
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AMENDMENT TO WHOLESALE USAGE AGREEMENT
This amendment (the "Amendment") to the Wholesale Usage Agreement (the
"Agreement") dated February 17, 1998, effective on the last date signed below,
between PSINet Inc., a New York corporation, and Flashnet Communications, Inc.,
a _____________ corporation.
RECITALS
WHEREAS, the parties wish to further amend the Amended Agreement to reflect
certain revisions they have discussed and agreed upon;
NOW, THEREFORE, in consideration of the mutual obligations in this Second
Amendment and for other good consideration, the receipt and sufficiency of which
are acknowledged, the parties agree as follows:
1. Change Section 4.4.1 Ramp Period to read as follows:
"4.4.1 RAMP PERIOD. The initial sixteen (16) months from the Effective
Date hereinafter defines the "Ramp Period". The minimum number of
Subscribers on a monthly basis during the Ramp Period shall be projected
as follows:
Month 1: ____ Month 2: _____ Month 3: _____ Month 4: _______
Month 5: ____ Month 6: _____ Month 7: _____ Month 8: _______
Month 9: ____ Month 10: ____ Month 11: ____ Month 12: ______
Month 13: ___ Month 14: ____ Month 15: ____ Month 16: 50,000
PSINet and Retailer agree that these numbers will serve as a gauge of the
success of the program during the Ramp Period."
2. Add a new Section 4.4.2 that reads as follows:
(Confidential Treatment has been requested)
3. All provisions of the Agreement, except as modified by this Amendment,
shall remain in full force and effect and are hereby reaffirmed.
IN WITNESS WHEREOF, the duly authorized representatives of the parties hereto
have executed this Amendment as of the last date specified below, with said
Addendum effective on that date.
FLASHNET COMMUNICATIONS, INC. PSINET INC.
By: By:
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▇▇▇▇ ▇▇▇▇▇
Vice President, Carrier and ISP Services
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Date: Date:
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