Initial Public Offering (IPO): Pre-Effective Amendment to Registration Statement (General Form) — Form S-1
Filing Table of Contents
Document/Exhibit Description Pages Size
1: S-1/A Form S-1 Amendment Number 1 107 579K
2: EX-3.1 Restated Certificate of Incorporation 25 111K
3: EX-3.2 Amended and Restated By-Laws 18 82K
4: EX-4.1 Specimen Common Stock Certificate 2 12K
5: EX-4.2 Warrant Agreement Dtd September 4, 1998 33 94K
6: EX-4.3 Common Stock Warrant Dtd 02/19/1999 8 37K
7: EX-4.4 Common Stock Warrant Dtd 02/19/1999 8 37K
8: EX-4.5 Stockholders Agreement Dated 02/19/1999 28 142K
9: EX-10.1 Investment Agreement Dated 04/22/1998 2 19K
16: EX-10.10 Assignment and Assumption Dtd 10/02/1998 3 18K
17: EX-10.12 Employment Agreement Dtd 6/29/1998 15 53K
18: EX-10.13 Agreement for Cooperative Use Dtd 11/5/1996 37 112K
19: EX-10.14 Letter of Agreement Dtd 2/28/1997 2 15K
20: EX-10.15 Letter of Agreement Option Dtd 4/4/1997 2± 14K
21: EX-10.16 Letter Amendement Agreement Dtd 8/1/1997 3 17K
22: EX-10.17 Letter Amendement Agreement Dtd 10/21/1997 2± 14K
23: EX-10.18 Application Transfer Dtd 01/06/1999 2± 15K
24: EX-10.19 Assignment of Ussn and Pct Dtd 01/06/1999 2 16K
25: EX-10.20 Letter Amendment Agreement Dtd 01/26/1999 2 20K
26: EX-10.21 Assignmt of 50% of Certain Patent Prop Dtd 3 24K
01/26/1999
27: EX-10.22 Assignmt of Certain Trademarks Dtd 02/09/1999 2 15K
28: EX-10.23 Internet Services Agreement Dtd 10/24/1997 6 37K
29: EX-10.24 Collaboration Agreement Dtd 02/18/1998 2 17K
30: EX-10.25 Cais Iport License Agreement Dtd 09/10/1998 19 70K
31: EX-10.26 Marketing Assoc. Solution Agreement Dtd 11/11/1998 10 50K
32: EX-10.27 Master License Agreement Dtd 12/23/1998 51 175K
33: EX-10.28 Agreement for High Speed Net Access Serv Dtd 26 93K
02/19/1999
34: EX-10.29 Deed of Lease Dtd July 28, 1997 13 44K
10: EX-10.3 Series A Stock Dtd 02/19/1999 43 177K
35: EX-10.30 Deed of Lease Dtd May 28, 1998 12 41K
36: EX-10.31 Office Building Lease Dtd 11/21/1998 71± 279K
37: EX-10.32 Settle Agreement Dtd 01/24/1999 17 48K
38: EX-10.33 Amended and Restated Equity Dtd 02/12/1999 9 46K
11: EX-10.4 Exchange Agreement Dtd 10/02/1998 5 22K
12: EX-10.5 Agreement of Merger Dtd 10/02/1998 5 25K
13: EX-10.6 Amended and Restated Employment Agreement Dtd 9 43K
06/03/1997
14: EX-10.7 Assignment and Assumption Dtd 10/02/1998 3 17K
15: EX-10.9 Amended Employment Agreement Dtd 9/8/1997 11 49K
EX-10.28 — Agreement for High Speed Net Access Serv Dtd 02/19/1999
Exhibit Table of Contents
EXHIBIT 10.28
AGREEMENT FOR HIGH SPEED INTERNET ACCESS SERVICE IN MULTIPLE
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DWELLING UNITS
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This Agreement made and entered into on this 19th day of February, 1999, by and
between CAIS, INC. ("CAIS") a corporation organized under the laws of the
Commonwealth of Virginia, with its principal office at 1255 22nd Street, NW,
Washington, D.C. and OnePoint Communications Corp., a Delaware corporation with
principal offices at 2201 Waukegan Road, Suite 200E, Bannockburn, Illinois 60015
("ONEPOINT") (CAIS and ONEPOINT are hereinafter referred to collectively as the
"Parties.").
WITNESSETH
WHEREAS, CAIS is in the business of providing various Internet services
including high speed Internet access ("HSIA");
WHEREAS, CAIS owns, is licensee of, and/or otherwise controls rights to
certain patented, patent-pending and proprietary technology, known as OverVoice
(SM), that makes it possible to provide residents of apartment buildings and
similar multi-dwelling unit ("MDU") buildings with simultaneous telephone
service and high-bandwidth access to the Internet and other communication
services over existing in-building wiring; and
WHEREAS, ONEPOINT is a provider of bundled communications and entertainment
services to residents of approximately 1200 MDUs, with approximately 250,000
units, in high growth, densely populated urban and suburban markets, and has
entered into agreements to market Internet services on a preferential basis to
certain of those MDUs, and has the ability to add value to the sale and
licensing by CAIS of CAIS's Internet services to such MDUs; and
WHEREAS, the Parties wish to undertake to provide high speed Internet
access service by implementation of the OverVoice technology and or other
appropriate high speed internet access ("HSIA") infrastructure solutions in MDUs
for which ONEPOINT has or intends to obtain preferential rights for on-site
marketing of HSIA services;
NOW, THEREFORE, in consideration of the mutual covenants and promises
contained herein and for other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties agree as follows:
OnePoint - Channel Agreement - Confidential
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Section 1
DEFINITIONS.
1.1 "Services", means any one or more of the services covered by this
Agreement, and which consist of Internet access, OverVoice service, and other
HSIA service offered to End-Users under the terms and conditions of a Subscriber
License Agreement incorporating in substance the terms and conditions set forth
in Section 14.1.
1.2 "Account", "Customer", "End-User", or "Subscriber", means any
person, partnership, corporation, trust company, unincorporated entity,
association, joint venture, or any entity whatsoever that has executed, for
purposes of utilizing the Services, a Subscriber License Agreement (in a form
acceptable to CAIS and ONEPOINT) that has been accepted by CAIS.
1.3 "Subscriber License Agreement", means an agreement (in a form
acceptable to ONEPOINT and CAIS) between CAIS and an End-User for use of the
Services.
1.4 "Building", means any multi-tenant unit building, including but not
limited to apartment buildings, condominiums and similar structures, within
which the OverVoice system or other HSIA service will be installed by CAIS
pursuant to this Agreement for the purpose of providing the Services to End
Users within such Building.
1.5 "Building Representative", means any person, partnership, corporation,
trust company, unincorporated entity, association, joint venture, or any entity
whatsoever that has the authority with respect to one or more Building(s) in the
Territory to enter into a Building Agreement with CAIS.
1.6 "Building Agreement", means an agreement (in a form acceptable to CAIS
and ONEPOINT) between CAIS and a Building Representative for the installation
and provisioning of the OverVoice system or other HSIA service to one or more
Building(s) controlled by the Building Representative.
1.7 "Confidential Information", means any secret or proprietary
information relating directly to party's business or to that of a party's
affiliated companies and subsidiaries, including, but not limited to, any and
all technical and non-technical information, including without limitation,
information concerning financial, accounting or marketing reports, business
plans, analyses, forecasts, predictions, projections, intellectual property,
trade secrets and know-how disclosed in connection with the Transactions.
Confidential Information may take the form of documentation, drawings,
specifications, software technical or engineering data, and other forms, and may
be communicated orally, in writing, by electronic or magnetic media, by visual
observation and by other means. Confidential Information includes any reports,
analyses, studies or other materials, whether prepared by the receiving party or
otherwise, that contain or are based upon proprietary or confidential
information. The term Confidential Information shall not include such portions
of the Confidential Information which (i) are or become generally available to
the public other than as a result of a disclosure in breach of this Agreement,
or (ii) are or become available on a non-confidential basis from a source which
is not known, after due
OnePoint - Channel Agreement - Confidential
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and diligent inquiry, to be prohibited from disclosing such information by a
legal, contractual or fiduciary obligation.
1.8 "OverVoice", means services utilizing technology owned, licensed to,
and/or otherwise controlled by CAIS, which technology, among other things, is
utilized to communicate digital signals over twisted pair wires, including wires
actively conducting voiceband communication.
Section 2
SCOPE OF RELATIONSHIP
2.1 Subject to the terms and conditions hereof, ONEPOINT during the term
of this Agreement shall assign to CAIS ONEPOINT's preferential right to provide
HSIA services to certain Buildings, shall introduce CAIS to the appropriate
Building Representative for each such Building and shall facilitate any
negotiations, as provided for in Section 3.1, of a Building Agreement between
such Building Representative and CAIS regarding the HSIA services to be provided
to such Building. CAIS shall provide installation, support and other services
relating to the Services to Buildings and End-Users.
2.2 CAIS shall market, brand and label the Services under CAIS's company
name., The Parties agree that where "OverVoice" is utilized the proprietary
OverVoice wall jacks to be installed in apartment units in each Building shall
bear the logos of both OverVoice and ONE POINT. The Parties agree that the
start-up screen for Internet service to End-Users in the Buildings shall bear
the logos of both OverVoice and ONE POINT. CAIS subject to approval of both
parties to inclusion on the CAIS lead pages shall control all content on the
start-up screen. Revenues derived from advertisements or other content displayed
in the start-up screen shall be allocated, net of third party expenses, as
provided in Section 4.6c with respect to revenues attributable to End Users in
Buildings.
2.3 Each party is free to use its own employees, agents or other
independent contractors to market such party's own products and services, and
otherwise engage in business.
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Section 3
SERVICE DESCRIPTION - RIGHTS AND DUTIES
3.1 Prospective Buildings. a. The Buildings to be offered by ONEPOINT
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to CAIS for the purpose of evaluation by CAIS of whether CAIS desires to provide
HSIA services to such Buildings shall be all the Town & Country properties
throughout the United States where ONEPOINT has secured an agreement with the
Building to offer, on a preferential basis, Internet services (the "ONEPOINT
Designated Properties"). ONE POINT agrees to assign such agreements to CAIS as
requested by CAIS, subject to property owner approval, following the evaluation
described in Section 3.1b below. As of the date of this Agreement, the ONEPOINT
Designated Properties consists of approximately 30 Buildings with approximately
10,000 units. In addition, with respect to other ONEPOINT properties throughout
the United States, but excluding ONEPOINT properties in the Chicago and Phoenix
areas, where ONEPOINT has obtained an existing preferential right of entry for
Internet services and other communications services (the "ONEPOINT Property
Portfolio"), consisting of approximately 300 Buildings with approximately 90,000
units, ONEPOINT agrees to use its best efforts to provide suitable introductions
to Building Representatives of Buildings selected by ONEPOINT , provided,
however, that CAIS shall have the right to decline ONEPOINT's assistance and
exclude from inclusion in this Agreement any Buildings in the ONEPOINT Property
Portfolio for which CAIS has an existing relationship independent of ONEPOINT.
(The parties acknowledge that with respect to ONEPOINT properties in the Chicago
and Phoenix areas where ONEPOINT desires to provide HSIA service in conjunction
with CAIS and where ONEPOINT intends to act as the lead provider of HSIA
services to such properties, such arrangements will be covered by separate
agreement between ONEPOINT and CAIS.)
b. The parties agree that they shall commence an evaluation period with
respect to the ONEPOINT Designated Properties and the ONEPOINT Property
Portfolio upon execution of this Agreement. The parties will agree upon a
reasonable time period within which CAIS shall evaluate and select from those
Buildings offered by ONEPOINT from the ONEPOINT Designated Properties and from
the ONEPOINT Property Portfolio those Buildings for which CAIS intends to
provide HSIA services. As part of the evaluation process, ONEPOINT shall
provide to CAIS pertinent information regarding each such prospective Building,
including a copy of ONEPOINT's agreement with respect to each Building within
the ONEPOINT Designated Properties that provides ONEPOINT the right to offer, on
a preferential basis, Internet services in such Building. Nothing contained in
this Agreement shall require CAIS to agree to select a particular Building
offered to CAIS from within the ONEPOINT Designated Properties or from within
the ONEPOINT Property Portfolio to provide HSIA services. The parties agree
that where CAIS determines that it is necessary or advisable to modify,
supplement or otherwise negotiate with a Building Representative the terms
previously negotiated by ONEPOINT under which Internet services are to be
provided to a Building, ONEPOINT shall use its best efforts provide assistance
to CAIS in negotiating a Building Agreement with such Building Representative
for such Building as provided in Section 6. ONEPOINT agrees that it shall
provide to CAIS the pertinent information regarding each prospective Building
from the ONEPOINT Designated Properties within sixty (60) days of the date of
this Agreement, and
OnePoint - Channel Agreement - Confidential
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shall provide to CAIS the pertinent information regarding each prospective
Building from the ONEPOINT Property Portfolio within twelve (12) months of the
date of this Agreement.
3.2 Internet Connectivity:
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a. CAIS shall supply the dedicated Internet connectivity that will support
each Building installation under this Agreement , provided that CAIS's prices
are competitive with prices available in the local market from other national
Tier One Internet service providers.
Section 4
RESPONSIBILITIES OF CAIS
4.1 a. The Parties agree that where CAIS determines it to be necessary or
advisable as provided in Section 3.1 above, and with the assistance to be
provided by ONEPOINT as set forth in Section 6, CAIS shall act to negotiate and
secure a Building Agreement with a prospective Building. CAIS shall endeavor,
with ONEPOINT's assistance, to negotiate to include in such Building Agreement
the right for CAIS to offer, on an exclusive basis, and for a minimum five (5)
year term, HSIA services to such Building, and which Building Agreement may
provide for financial contributions by the Property to cover a portion of the
up-front installation costs required for the provision of HSIA service. CAIS,
with ONEPOINT's assistance, shall use its best efforts to negotiate as part of
such Building Agreement an initial term of seven (7) years or longer, and in any
case, the initial term shall be for a minimum five (5) years. Such Building
Agreement shall also include the following:
i. Installation of "Equipment" in the basement, wiring closets, and
individual Building tenant units;
ii. Roof rights for access and installation of wireless local loop
technology to connect to basement hub and to other buildings;
iii. The Compensation, Commissioning or other revenue sharing arrangements
between and among CAIS, the Building Representative and, if applicable, the
Building owner (such arrangements to be subject to ONEPOINT's right to withdraw
as Co-Manager within 30 days of Co-Manager's receipt from CAIS of notice setting
forth the terms of the Compensation, Commissioning or other revenue sharing
arrangements to be applicable to such Building);
iv. CAIS's access to Building tenant information, including tenant
telephone numbers, for marketing purposes;
v. Building Representative commitment to assistance with marketing;
vi. Indemnification of Building owner by CAIS;
vii. to the extent a Building Representative for a particular Building is
not the owner of such Building, a signature on behalf of the owner of the
Building evidencing the owner's consent to the terms contained in the Building
Agreement with respect to that particular Building.
b. CAIS shall be responsible for all negotiations and/or customer service
to Building Representatives, including coordination of all issues related to
installation of the OverVoice or other HSIA system Service in the Building,
processing complaints, answering
OnePoint - Channel Agreement - Confidential
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questions, handling all issues related to commissioning, and otherwise assisting
the Building Representative during the term of its contract with CAIS. CAIS may
outsource some or all of such functions to CAIS-approved vendors.
4.2 Service Provisioning. The Parties agree that CAIS shall be the
--------------------
primary service provider responsible for coordination and installation of the
Services in the Buildings. CAIS shall maintain the relationship with the
Building and the Building Representatives for the Services at all times and
shall provide account management to each Building on an on-going basis. CAIS
shall be responsible for the installation, maintenance and repair of any HSIA
systems hardware that will be provisioned in the basement and wiring closets of
Buildings. CAIS shall be responsible for the installation, maintenance and
repair of the any HSIA system equipment wall jacks that will be provisioned in
individual End User's units within the Buildings. Using only CAIS-certified
installation crews, CAIS shall install jacks (two or more in each unit), cabling
and telephone equipment.
The quantities of each of these components required for a given Building will be
determined by the specific Building's configuration and the number of End-Users
in the Building. Hardware installation, repair and maintenance may be undertaken
either directly by CAIS or outsourced to third parties provided that all such
work by either CAIS or CAIS's outsource vendors conforms to CAIS's operational
standards. CAIS shall use its best efforts to develop relationships with
outsource vendors on a local and national level. CAIS shall identify a local
vendor, reasonably acceptable to ONEPOINT, to perform cable modem or Ethernet
card installation for each standard metropolitan statistical area in which
CAIS's Buildings are located.
4.3 End-User Accounts. CAIS's responsibility shall be to use its best
-----------------
efforts to market, advertise, and otherwise solicit End-User customers for the
HSIA Service and to sign said End-Users to Subscriber License Agreements. Such
agreements shall incorporate in substance the terms set forth in Section 13.1.
CAIS shall act as the billing entity and shall be responsible for and shall
provide all End-User billing and tier-one customer service needs including
billing inquiries, issuance of credit, issuance of billing statements, and
collection of End-User retail rate. CAIS shall maintain a local and toll-free
telephone number for this purpose. CAIS also shall be responsible for and shall
provide additional customer service to such Subscribers, including processing
complaints, answering questions, and otherwise assisting the End-Users during
the term of their contract with CAIS for use of the Services CAIS may outsource
some or all of such functions to CAIS-approved vendors.
4.4 Budgeting. For Buildings where ONEPOINT has agreed to participate
---------
financially as Co-Manager as provided in this Agreement, the Parties agree that
capital costs for (i) the OverVoice or other HSIA infrastructure solution and
(ii) the server software solution (iii) and any other items that are mutually
agreed upon by the Parties as reasonably necessary to provide the Services shall
be budgeted by CAIS on a Building-by-Building basis.
4.5 Allocation of Expenses. For each Building offered by ONEPOINT to CAIS,
----------------------
ONEPOINT shall indicate to CAIS whether or not ONEPOINT intends to participate
financially
OnePoint - Channel Agreement - Confidential
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as a "Co-Manager" for such Building by no later than ten (10) business days
following notice from CAIS that CAIS intends to provide HSIA services to such
Building.
a. Joint Costs. For each Building where ONEPOINT has agreed to
participate as Co-Manager, CAIS shall contribute and pay for 75% of the non-
recurring and recurring costs identified as "Joint Costs" as outlined in the
chart in Section 4.5(c) and as set forth in the budget developed pursuant to
Section 4.4, and ONEPOINT shall contribute the remaining 25% of such costs. Any
shortfall of the non-recurring and recurring costs identified as "Joint Costs"
as outlined in the chart in Section 4.5(c) shall be made up by contributions of
CAIS and ONEPOINT in the same 75% to 25% ratio. Where ONEPOINT has declined to
participate as Co-Manager, CAIS shall contribute and pay for 100% of the non-
recurring and recurring costs identified as "Joint Costs" as outlined in the
chart in Section 4.5(c).
b. Expenses Prior to Allocation of Revenues. The following
additional recurring expenses shall be paid by CAIS out of the gross End-User
revenues prior to allocation of net revenue sharing between CAIS and ONEPOINT,
with any shortfall to be made up by contributions (1) where ONEPOINT has agreed
to participate as Co-Manager, 75% by CAIS and 25% by ONEPOINT or (2) where
ONEPOINT has declined to participate as Co-Manager, 100% by CAIS:
(i) the recurring monthly cost of the local loop (including
DS3 local loop and bandwidth, ISDN, and Dial costs)
(ii) the monthly cost of the Internet access for each Building ;
(iii) Commission/Revenue Share to Building/Building
Representative (The negotiation by CAIS of any revenue sharing payments to
Building/Building Representative for a Building shall be subject to the
withdrawal rights of ONEPOINT as described in Section 4.1a(iii) above).
c. The chart below summarizes the allocation of responsibility for various
non-recurring and recurring cost items:
Non-Recurring Costs
[Enlarge/Download Table]
Costs to be
allocated as
Joint
Cost Item: Costs
(75/25)
----------------------------------------------------------------------------------------------------------
Dial up capability (modem RAS, routers) X
Consumer services capability (email, authentication) X
COM21 Headend equipment X
DS3 Installation X
ISDN or other PL installation for dial-in X
DID numbers X
Cable modem purchase and inventory X
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[Download Table]
Network set up costs, including design, equipment, ordering X -
Basement/Closet Equipment Installation, configuration, and X
testing (XXwer, other equipment)
The equipment, installation and other set up costs X
to provide the local loop and
Ethernet Switching Hubs, X
Server,CSU/DSU X
OV/ Jacks and control units X
Related Schedule H equipment expenses X
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Recurring Costs
[Enlarge/Download Table]
Costs to be
allocated to:
Joint Costs
Cost Item: (75/25) CAIS
----------------------------------------------------------------------------------------------------------
Tier 1 Customer Service X
Customer Acquisition X
Modem Provisioning, installation X
Billing and Collection X
Basement/Closet Equipment Installation, Maint. & Repair X
(including 3rd Party Vendors)
Tier 2 Customer Service and Technical Support to Building X
Internet Account Activation and Allocation/Server Disconnection X
Web site , mgmt., hosting X
E-Mail Set-Up X
Royalty Payments for OverVoice licensing rights... X
Web site design X
4.6 Revenue Sharing. Unless agreed otherwise with respect to a particular
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Building, as provided in Section 4.3 above, Revenues from End-Users at each
Building during the Agreement shall be billed and collected by CAIS. After
payment of the expense items provided for in subsection 4.5(b) above, collected
revenues shall be allocated and paid as follows based on
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(1) whether or not ONEPOINT is participating with respect to such Building
as Co-Manager, and (2) the End-User penetration level in such Building during
the month for which such revenue is generated:
a. For a Building where ONEPOINT is participating as Co-Manager:
[Download Table]
Penetr. Level CAIS Rev. % ONEPOINT Rev. %
------------- ----------- ---------------
0-5% * % * %
5-10% * % * %
10-15% * % * %
15-20% * % * %
20-25% * % * %
25-30% * % * %
30-35% * % * %
35%+ * % * %
b. For a Building where ONEPOINT is not participating as Co-Manager:
[Download Table]
Penetr. Level CAIS Rev. % ONEPOINT Rev. %
------------- ----------- ---------------
0-5% * % * %
5-10% * % * %
10-15% * % * %
15-20% * % * %
20%+ * % * %
c. Revenues derived from advertisements or other content displayed in the
start-up screen shall be allocated and paid, net of third party expenses, with
respect to revenues attributable to End-Users in a Building to which CAIS is
providing HSIA services under this Agreement, on the percentage allocation basis
provided in Section 4.6a above based on the End-User penetration level in such
Building during the month for which such revenue applies, and irrespective of
whether or not ONEPOINT is participating with respect to such Building as Co-
Manager.
d. Any installation revenues shall accrue to CAIS.
*Confidential Treatment Requested. The redacted material has been separately
filed with the Commission.
4.7. Payments and Audit Rights. CAIS, as the party responsible for billing
-------------------------
and collection from End-Users, also shall be responsible for handling payments
to vendors for expenses to be jointly paid under the capital budget, and for
calculation and distribution of revenue share payments to ONEPOINT. Monthly
revenue share payments shall be due and payable from CAIS to ONEPOINT by the
15th of the month following the month in which the Services to which the fees
relate were provided to the End-User. CAIS shall report revenue data to
ONEPOINT on a monthly basis in a format mutually agreed upon by CAIS and
ONEPOINT . ONEPOINT shall have the right to audit CAIS's books and accounts with
respect
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to the HSIA Services furnished at Buildings where to which CAIS is providing
HSIA services under this Agreement. Such audit shall be conducted at the expense
of ONEPOINT, unless such audit reveals a variance of more than five percent from
the revenue data reported to ONEPOINT, in which event CAIS shall be obligated to
reimburse ONEPONT for the cost of such audit (as well as compensate ONEPOINT for
any shortfalls in payments due to ONEPOINT revealed as a result of such audit.)
4.8 CAIS agrees that it shall also perform the following:
a. Promote, market and support the Services by:
(i) Identification of prospective End-Users within
the Buildings;
(ii) Contacting of such prospective End-Users and
arranging for and conducting competent and effective
presentations relating to the Services;
(iii) Performance of marketing efforts, pricing and
promotion by Lead Manager as CAIS may in its sole discretion
determine necessary to obtain duly executed Subscriber License
Agreements;.
(iv) Provision of a "Demonstration System" where
appropriate sufficient for the purposes of conducting
demonstrations and performance benchmarks of the Services;
(v) Performance of launch events, and
demonstrations of the Services to prospective End-Users in
Buildings either at the Demonstration Center, on the premises
of such Buildings or End-Users, or at locations arranged by
and paid for by CAIS, as necessary to demonstrate the Services
effectively;
(vi) Obtaining, where CAIS determines necessary or
advisable and with the participation and assistance of
ONEPOINT, prior to the transfer or delivery of an HSIA system
to a Building, a Building Agreement for the Services executed
by the authorized Building Representative and by CAIS, and
incorporating such terms and conditions as are referenced in
Section 4.1;
(vii) Obtaining, prior to the transfer or delivery of
the Services to an End-User, a Subscriber License Agreement
for such Services executed by End-User and CAIS and
incorporating
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such terms and conditions as are referenced in Sections 4.3
and 14.1;
(viii) Providing post-delivery telephone customer
service (at CAIS or customer locations) to End-Users by
trained personnel respecting the documentation, functions, and
operation of the HSIA services;
(ix) Maintaining a copy of any executed Building
Agreement, with ONEPOINT having the right to review such
agreements, for each Building to which CAIS is providing HSIA
services under this Agreement;
(x) Maintaining copies of Subscriber License
Agreements with ONEPOINT having the right to review such
agreements; and providing ONEPOINT with a monthly report
reflecting additions/deletions to the list of active
Agreements;
(xi) Maintaining standards reasonably acceptable to
both ONEPOINT and CAIS of: (a) professionalism in dealing with
customers; (b) technical proficiency in demonstration of the
Services, and End-User and Building support; and (c) Building
and End-user installation timeliness; and
(xii) Following reasonable rules and guidelines as
outlined in OverVoice and/or other applicable policy and
procedure manuals, copies of which shall be delivered to
ONEPOINT upon execution hereof with CAIS to provide ONEPOINT
with any amendments thereto.
b. Pay any applicable taxes, including federal, state, municipal,
excise or similar taxes, and shipping charges.
Section 5
ADDITIONAL UNDERTAKINGS OF CAIS
5.1 CAIS agrees for the period of this Agreement that it shall:
a. Secure the use of the OverVoice technology and make
payment of all licensing fees related thereto;
b. Provide tier-two customer support ;
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c. Undertake the activation and maintenance of customer
Internet accounts, allocation and set-up of customer electronic
mail addresses and boxes;
d. Assign an appropriate number of account and/or project
coordinators to determine equipment requirements, to facilitate
installations, and to manage ongoing operations; and
e. Keep ONEPOINT informed of the status of updates and
improvements being developed by CAIS for the Services or
documentation, or any component thereof, during the term of this
Agreement.
5.2 CAIS represents and warrants to ONEPOINT as follows, and the knowledge
is that ONEPOINT is relying on such representations and warranties in entering
into this agreement:
a. CAIS has all rights necessary to grant any rights herein
to ONEPOINT or the Building or End-User;
b. CAIS will use its best efforts to ensure that the
Service does not contain any routines or devices that
could interfere with the use of the Service (including
without limitation, time locks, keys or "bombs") or
interfere with, corrupt or destroy any software or data
(commonly known as "viruses");
c. There are no agreements, covenants or encumbrances with
respect to the service which anyway conflicts or
interferes with CAIS's right to enter into this
Agreement, to provide the Service or which conflicts or
interferes with ONEPOINT'S right to exercise the rights
granted under this Agreement;
d. That the Service is designed to be used prior to,
during, and after the calendar Year 2000 A.D., and that
the Service will operate during each such time period
without error relating to date data, specifically
including any error relating to, or the product of, date
data which represents or references different centuries
or more than one century.
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Section 6
ADDITIONAL UNDERTAKINGS OF ONEPOINT
ONEPOINT agrees for the period of this Agreement that it shall perform the
following:
6.1 Assign to CAIS the preferential rights held by ONEPOINT to provide
Internet services to such Buildings from the ONEPOINT Designated Properties as
selected by CAIS from those offered, subject to property owner approval.
6.2 Provide suitable introductions to Building Representatives of the
Buildings from the ONEPOINT Designated Properties and the ONEPOINT Property
Portfolio offered by ONEPOINT and selected by CAIS pursuant to Section 3.1b,
and, where determined by CAIS to be necessary or advisable, use ONEPOINT's best
efforts to provide to CAIS assistance in the negotiation and completion of a
Building Agreement between CAIS and such Building Representative for each
applicable Building.
6.3 Assist in ongoing relations with Buildings and Building
Representatives.
Section 7
EQUIPMENT OWNERSHIP
7.1. Ownership of the equipment to be installed in each Building to provide
the Services shall be allocated as follows:
a. in the same proportion as expenses are allocated for such Building in Section
4.5 above; provided, however, that CAIS shall own all of the proprietary
OverVoice equipment where installed in each Building to provide the Services.
Section 8
PROPRIETARY RIGHTS; COMPETITION
8.1 ONEPOINT acknowledges and agrees that the OverVoice system and
technology are owned by and/or controlled by and proprietary to CAIS and embody
valuable patents, copyrights and trade secrets. ONEPOINT shall make no
additional copies of OverVoice system proprietary equipment and documentation
and shall not attempt to reverse engineer the OverVoice system. ONEPOINT shall
protect the OverVoice services and other CAIS materials related to the OverVoice
services from unauthorized access, copying, dissemination, disclosure, or
decompilation or other unauthorized use. In addition, both parties agree and
acknowledge that, pursuant to the terms of the Mutual Non-Disclosure Agreement
between the parties dated May7, 1998, they will keep strictly confidential all
Confidential Information and will not, without
OnePoint - Channel Agreement - Confidential
Page 14
express written authorization, signed by the other parties authorized officer,
use, sell, market or disclose any Confidential Information to any third person,
firm, corporation, or association for any purposes.
8.2 CAIS shall own all additions, modifications, changes, or other
derivative works for the OverVoice System developed by ONEPOINT (collectively
"COMPANY Works"), and ONEPOINT hereby agrees to treat such ONEPOINT Works as
works made for hire to the extent permissible under law and to otherwise assign
to CAIS the same. ONEPOINT agrees to sign all documents and perform all such
acts reasonably necessary to perfect CAIS's rights. ONEPOINT agrees to provide
CAIS with a copy of all ONEPOINT Works together with the any supporting
documentation, at least once per year, or upon request by CAIS.
8.3 ONEPOINT acknowledges that it obtains no right, title nor interest in
or to any CAIS copyright, trademark, patent or other proprietary right relating
to the OverVoice services, and ONEPOINT agrees not to remove, alter, cover or
obscure any copyright, patent, trademark or other proprietary rights notice on
proprietary equipment and documentation related to the OverVoice services or any
portion thereof. ONEPOINT shall comply with reasonable directions submitted by
CAIS from time to time regarding the placement of notices on the proprietary
equipment and materials related to the OverVoice services. ONEPOINT agrees that
it shall comply with the following restrictions on use of products containing
the OverVoice technology, that the following language regarding such
restrictions shall appear on the exterior packaging of any such product, and
that such restrictions shall be included in any agreements by ONEPOINT to resell
or further sub-license such products:
"Purchaser (or licensee) agrees not to use this product in
detached single-family residential structures, and also
agrees not to use this product in business establishments
earning at least 90% of their revenues from the sale of food
and beverages consumed on premises."
8.4 ONEPOINT shall: (a) notify CAIS immediately of the unauthorized
possession, use, or knowledge of any Services, materials, other items or
Confidential Information or trade secrets supplied or made available to ONEPOINT
under this Agreement, by a person or organization not authorized by this
Agreement to have such possession, use, or knowledge; (b) assist in correcting
any such unauthorized possession, use, or knowledge to the extent ONEPOINT
determines reasonable; and (c) cooperate with CAIS in any litigation against
third parties deemed necessary by CAIS to protect its proprietary rights. Any
and all expenses incurred by ONEPOINT at CAIS's request in connection with
compliance with this Section, including reasonable attorneys' fees, shall be
reimbursed to ONEPOINT by CAIS.
8.5 ONEPOINT has and shall execute no authority to make statements or
representations concerning the Services that exceed or are inconsistent with the
marketing materials and technical specifications provided to ONEPOINT by CAIS.
ONEPOINT has and shall exercise no authority to bind CAIS to any undertaking or
performance with respect to the Services.
OnePoint - Channel Agreement - Confidential
Page 15
8.6 To assist CAIS in the protection of its proprietary rights, ONEPOINT
will permit reasonable inspections by representatives of CAIS, not more than two
times per year at CAIS's sole cost and expense, to review ONEPOINT's
confidentiality policies and procedures relating to the safeguard of CAIS 's
Services and proprietary material, as well as the accounting information
regarding the same.
8.7 ONEPOINT agrees not to make modifications to Services for the purpose
of installing or operating the same with incompatible hardware.
8.8 ONEPOINT agrees that it will not use any CAIS Confidential
Information for the purpose of development or distribution, directly or
indirectly, of any product or program similar to, or competitive with, the
OverVoice System. CAIS agrees that it will not use any ONEPOINT Confidential
Information for the purpose of development or distribution, directly or
indirectly, of any product or program similar to, or competitive with, the
products or programs offered by ONEPOINT.
8.9 This Agreement is expressly made subject to any laws, regulations,
orders or other restrictions on the export from the United States of America of
products and information about the products, which may be imposed from time to
time by the Government of the United States of America. Notwithstanding
anything contained in this Agreement to the contrary, ONEPOINT shall not export
or reexport, directly or indirectly, any product, or information pertaining
thereto to any country or destination or permit its trans-shipment to any
country or destination for which such Government or any agency thereof requires
an export license or other governmental approval at the time of export without
first obtaining such license or approval.
Section 9
TERM AND TERMINATION
9.1 The term of this Agreement shall commence as of the date first set
forth above and shall continue the later of (i) seven (7) years from the date
hereof or (ii) the latest expiration of CAIS's right to provide HSIA services to
any Building for which HSIA services are provided pursuant to this Agreement,
unless sooner terminated in accordance with the provisions herein. Following
completion of the initial seven year term, this Agreement shall be extended
automatically for additional successive one year terms unless either party give
the other 90 days' advance written notice of its intention to terminate the
Agreement at the end of the initial term or any renewal term. Notwithstanding
the preceding, the terms of this Agreement shall continue to apply with respect
to any Building until the termination date of any Building Agreement entered
into pursuant to this Agreement.
9.2 a. If conditions exist that constitute a material breach of this
Agreement by a party , the non-breaching party shall provide written notice of
the details of the material breach to the breaching party. If the breaching
party's breach has not been resolved to the other party's satisfaction within
thirty (30) days, the other party has the right to terminate this Agreement.
OnePoint - Channel Agreement - Confidential
Page 16
b. In the event, after default by a party hereunder, counsel is
employed by the other party to enforce the defaulting party's obligations,
defaulting party hereby agrees to pay the attorney's fees so incurred by the
non-defaulting party, whether or not suit be brought, and all other costs and
expenses connected with such enforcement.
9.3 a. Upon expiration or termination of this Agreement, for any reason,
the Parties agree that they shall work together to establish a method of
terminating the HSIA service to such Building and for resolving ownership/cost
recovery and removing proprietary equipment in a manner that causes no
disruption either to the service received by the end user or to the relationship
between ONEPOINT and the end user or between ONEPOINT and the management of such
Building.
b. The parties obligation respecting non-use and nondisclosure of
the other party's Confidential Information or trade secrets related to the
Services shall survive termination of this Agreement and shall remain in effect
for so long as such information shall remain proprietary to the owner of such
information.
9.4 Each party's accrued payment obligations to the other party for
service and other charges shall survive termination of this Agreement.
Section 10
INDEMNITIES
10.1 Each party shall defend, indemnify and hold the other party and its
employees, independent contractors, and agents from and against any and all
claims, taxes, penalties, interest, costs, demands, expenses, damages, lawsuits,
or other liabilities (including without limitation, reasonable attorneys' fees)
relating to or arising out of (i) acts or omissions of the indemnifying party
or the indemnifying party's Subcontractors (or their respective employees,
independent contractors or agents), or the indemnifying party's Building
Representatives (or their respective employees, independent contractors or
agents) or End-User Customers (ii) the operation of the indemnifying party's
business(es), (iii) agreements or understandings between the indemnifying party
and third parties (including Subcontractors) relating to the indemnified party
or the Services, (iv) workers' compensation, employment insurance, Social
Security, income tax, welfare benefit, pension or similar laws with respect to
the indemnifying party, its employees and the Subcontractors (v) any material
breach of any representation, warranty or covenant contained herein, that is not
timely cured as provided for in Section 9.2a or (vi) any material defect in
the OverVoice or HSIA services that is not timely cured as provided for in
Section 9.2a.
10.2 The indemnities contained in Section 10.1 hereof shall be conditioned
upon the indemnifying party receiving (1) prompt written notice of any claims,
demands, or actions for which indemnity is sought; (2) cooperation in the
defense by the indemnified party; and (3) control of the defense and/or
settlement of such claim, demand, or action as to which indemnity is sought.
OnePoint - Channel Agreement - Confidential
Page 17
10.3 CAIS will defend or settle, at its own expense, any claim or suit
against ONEPOINT alleging that the Services infringe any United States patent,
trademark, copyright, or trade secret. CAIS also will pay all damages and costs
that by final judgment may be assessed against ONEPOINT due to such
infringement.
10.4 CAIS's obligation as set forth in the foregoing paragraph is expressly
conditioned upon the following: (1) that CAIS shall be notified promptly in
writing by ONEPOINT of any claim or suit; (2) that CAIS shall have sole control
of the defense or settlement of any claim or suit; (3) that ONEPOINT shall
cooperate with CAIS in a reasonable way to facilitate the settlement or defense
of any claim or suit; and (4) that the claim or suit does not arise from any
non-CAIS modifications to the Services.
10.5 If any Services become the subject of a claim of infringement, CAIS
will, at its option: (1) procure the right to continue using the applicable
Services; (2) replace the Services with a non-infringing product substantially
complying with the Services' specifications; (3) modify the Services so they
become non-infringing and perform in a substantially similar manner to the
original services; or (4) upon failure of the foregoing, CAIS will cease any
infringing use of the Services and CAIS or its agents will refund the fees paid
CAIS for the infringing Services, less a reasonable allowance for use and pay
any and all costs, expenses, penalties, including reasonable attorneys fees,
which may be suffered by ONEPOINT as a result of the termination of the Services
to the Buildings and/or the End Users.
10.6 SECTIONS 10.3 THROUGH 10.5 STATE THE ENTIRE LIABILITY OF CAIS, ITS
AFFILIATES, SUBCONTRACTORS AND REPRESENTATIVES FOR INFRINGEMENT BY ANY LICENSED
SERVICES.
OnePoint - Channel Agreement - Confidential
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Section 11
EXPENSES
11.1 Except as otherwise specified in this Agreement, each party agrees
that it shall be responsible for its own expenses and costs under this
Agreement, and that the other party shall have no obligation to reimburse such
party for any expenses or costs incurred by such party in the performance of
such party's duties hereunder.
Section 12
LIMITATIONS OF LIABILITY
12.1 a. Neither party shall have a right to or shall claim limited,
special, indirect, or consequential damages, including lost profits, for breach
of this Agreement. Remedies shall be limited to claims for amounts due
hereunder or for indemnification as provided for herein. The foregoing
limitation of remedies shall not apply to any action by CAIS for infringement by
ONEPOINT; any action based on or with respect to unauthorized publication,
disclosure, or use of confidential information or trade secrets of CAIS; or any
action based on CAIS 's rights in patents, copyrights, trademarks, or trade
names or other proprietary rights in the Services.
b. ONEPOINT agrees that CAIS will in no event be responsible for any
losses or damages of any and every nature (including, but not limited to,
consequential losses) incurred by ONEPOINT, by any subcontractors, marketing
agents, sales representatives, affiliates or employees utilized by ONEPOINT, by
any End Users, or by any other party, arising out of or resulting from service
outages or interruptions, delays, failure to provide service, or discontinuance
of service, whether or not caused by the fault or negligence of CAIS, including,
but not limited to, losses or damages of any nature resulting from the loss of
data, inability to access Internet, or inability to transmit or receive
information. ONEPOINT agrees to be responsible for appropriately conveying this
disclaimer to any subcontractors, marketing agents, sales representatives,
affiliates, employees, and End Users in Buildings where ONEPOINT is the Lead
Manager.
c. Not withstanding the provisions of Section 13.1b, CAIS upon
request of ONEPOINT will agree to adjust the fees for the Internet connectivity
service provided to a Building by CAIS pursuant to Sections 3.2 and 4.5b(ii) by
50% if such Building's connection time for such month is below 99.5%, and will
agree to adjust the monthly service fee for such Building by 100% if the
connection time for such month is below 99.0%. Normal periodic but scheduled
maintenance is to be considered up time for purposes of this calculation. CAIS
is not responsible for Internet network problems external to the CAIS network
and outages attributable to such external causes shall not be considered down
time for purposes of this calculation.
d. CAIS represents and warrants to ONEPOINT that CAIS owns, is a
licensee of, and/or otherwise controls rights to the OverVoice Internet
technology and that its use as provided
OnePoint - Channel Agreement - Confidential
Page 19
in this Agreement is both authorized by its license and does not infringe upon
the rights of any third party and does not violate any local, state, or federal
law of the United States.
12.2 FOR A PERIOD OF NINETY (90) DAYS FROM THE DATE THE OVERVOICE
INTERNET TECHNOLOGY IS INSTALLED AND READY FOR USE AT A BUILDING, IF THERE
APPEAR ANY DEFECTS IN THE OVERVOICE INTERNET TECHNOLOGY OR THE SERVICE THAT
ARISES (UNDER PROPER AND NORMAL USE AND CARE) DURING THIS WARRANTY PERIOD, CAIS
WILL REPLACE OR REPAIR THE OVERVOICE INTERNET TECHNOLOGY AND ANY DEFECTIVE
EQUIPMENT RELATED THERETO WITHOUT CHARGE, PROVIDED THAT ONEPOINT NOTIFIES CAIS
IN WRITING OF THE EXISTENCE OF A CLAIMED DEFECT WITHIN THE PERIOD SPECIFIED
HEREIN. CAIS MAKES NO OTHER WARRANTY OR REPRESENTATION AS TO THE PERFORMANCE OR
OPERATION OF ANY OF THE SERVICES TO THE ONEPOINT OR ANY THIRD PARTY. ONEPOINT
SHALL MAKE NO REPRESENTATION OR WARRANTY WITH REGARD TO THE SERVICES. ANY
IMPLIED WARRANTIES (INCLUDING, BUT WITHOUT LIMITATION, MERCHANTABILITY AND
FITNESS FOR A PARTICULAR PURPOSE) ARE HEREBY EXCLUDED. THE PARTIES AGREE THAT
CAIS'S LIABILITY, IF ANY, FOR DAMAGES RELATING TO ANY SERVICES SHALL BE LIMITED
TO THE ACTUAL END-USER SUBSCRIBER LICENSE AGREEMENT FEES PAID FOR THOSE SERVICES
AND WILL IN NO EVENT INCLUDE ANY CONSEQUENTIAL, INCIDENTAL, INDIRECT, SPECIAL OR
OTHER DAMAGES OF ANY KIND, EVEN IF CAIS HAS BEEN APPRAISED OF THE LIKELIHOOD OF
SUCH DAMAGE OCCURRING.
THE ONEPOINT UNDERSTANDS AND ACKNOWLEDGES THAT CAIS'S PRICE TERMS
DEPEND IN PART UPON THIS EXCLUSION OF WARRANTIES AND LIABILITIES.
Section 13
SERVICE USAGE
13.1 The Services may be utilized by the Parties and their respective End
User Customers only for lawful purposes, and the usage of the Services in
connection with or adjunct to any matter or thing which violates any foreign,
municipal, state, county or federal statute or regulation is prohibited. Both
Parties agrees to comply with the terms and conditions for use of the Services
set forth below in this Section 13.1. Such terms and conditions shall apply to
all of both Parties' respective downstream End-user Customers, and CAIS is
responsible for notifying such End Users of these terms and conditions by
incorporating such terms and conditions in all of CAIS's End-User Subscriber
License Agreements, and for assuring and enforcing compliance with these terms
and conditions by CAIS's End-User Subscribers.
a. Subject to the terms of ONEPOINT's Agreement with CAIS, End-Users
agree to subscribe to OverVoice or other HSIA service, and are
granted through CAIS, where applicable, a non-transferable, non-
assignable, non-exclusive sub-license to
OnePoint - Channel Agreement - Confidential
Page 20
use the OverVoice technology and any software provided as part of the
HSIA service, for the term of the End-User's service agreement.
b. The utilization of any data or information received End-User
Customers from the utilization of the Service to be provided by CAIS
is at End-User Customer's respective sole and absolute risk. CAIS
specifically disclaims and denies any responsibility for the
completeness, accuracy or quality of information obtained through the
Services to be provided.
c. Other than as specifically provided in this Agreement, CAIS makes
no warranties of any kind, whether expressed or implied, for the
services or software it is providing. CAIS also disclaims any
warranty of merchantability or fitness for a particular purpose. CAIS
will not be responsible for any damages End-User Customer suffers.
This includes loss of data resulting from delays, nondeliveries,
misdeliveries, or service interruptions caused by ONEPOINT's,
Customer's or CAIS's negligence, errors or omissions, or due to
inadvertent release or disclosure of information sent by the End-User.
d. The Services may only be used for lawful purposes. Unauthorized
transmission or storage of any information, data, or material in
violation of any Federal or state law or regulation is prohibited.
This includes, but is not limited to: copyrighted material, material
which is obscene, or material protected as a trade secret. End-Users
agree to indemnify and hold harmless CAIS from any claims (including
CAIS's attorney fees) resulting from End User's use of the Services
which damages the End-User or another party or parties.
e. End-User's access to CAIS's Internet service is subject to
compliance with the CAIS and, where applicable, OverVoice Acceptable
Use Policies, which are available on the CAIS and OverVoice home page
at: http://www.cais.com/cais/comp_aup.htm and
http://www.overvoice.com/aup.htm, respectively. Any access to other
networks connected to CAIS's network must comply with the rules for
that other network.
f. OverVoice service is a shared high bandwidth Internet service, and
CAIS reserves the right to prohibit or limit uses of the service that
could unduly interfere with the provision of service to other
customers. An End-User may not conduct web services or operate any
type of server through the End-User's OverVoice account.
g. CAIS shall have the right to correspond by e-mail directly with
all End-User Subscribers of the OverVoice service in order to update
such Subscribers on the Services.
Section 14
OnePoint - Channel Agreement - Confidential
Page 21
AUTHORITY
14.1 CAIS and ONEPOINT each represent to the other that this Agreement has
been authorized by all necessary corporate action. CAIS represents that to the
best of its knowledge it is either in compliance or is in the process of
becoming compliant with any and all regulatory requirements applicable to its
business as presently conducted. ONEPOINT similarly represents that to the best
of its knowledge it is either in compliance or is in the process of becoming
compliant with any and all regulatory requirements applicable to its business as
presently conducted. Upon request from one party, the other party shall provide
written documentation by any and all appropriate judicial, legislative, or
regulatory agency reflecting the other party's ability to sell the Services in
each state such other party provides service. CAIS represents that it is duly
authorized to entering into sub-license agreements under the terms of CAIS's
license agreement for use of the OverVoice technology.
Section 15
STATUS OF PERSONNEL
15.1 Relationship of the Parties. CAIS and ONEPOINT acknowledge and
---------------------------
agree that the relationship between them is solely that of independent
contractors, and nothing in this Agreement is to be construed to constitute the
parties as employer/employee, franchisor/franchisee, agent/principal, partners,
joint venturers, co-owners, or otherwise as participants in a joint or common
undertaking. Each party shall be responsible for wages, hours, and conditions of
employment of such party's personnel during the term of and under this
Agreement. Nothing herein shall be construed as implying that employees of one
party are employees of the other. Employees of one party are not entitled to
benefits of any nature whatsoever provided by the other party to its employees.
Neither CAIS nor ONEPOINT (or their respective employees, subcontractors, or
agents) have any right, power, or authority to act or create any obligation,
express or implied, on behalf of the other.
15.2 Non-Solicitation of Employees. During the term of the Agreement, and
-----------------------------
for a period of one year thereafter, neither ONEPOINT nor CAIS shall hire away
or attempt to hire away the other's employees or provide the other's employees
with any form of compensation or inducement that was not approved in advance by
the employing entity.
Section 16
INSURANCE
16.1 Each party agrees, at its respective sole cost, to carry and keep in
full force and effect at all times during the term of this Agreement and during
any extension thereof, a commercial liability insurance policy with a single
limit of no less than $1 Million, including coverage for bodily injury, property
damage and personal injury liability. CAIS shall name ONEPOINT and the Building
owner for each of CAIS's Buildings as additional insureds. Such
OnePoint - Channel Agreement - Confidential
Page 22
policy shall stipulate that the insurer shall provide the other party at least
thirty (30) days written notice prior to cancellation, failure to renew or any
material change in coverage of the policy. At a party's request, the other party
shall provide the requesting party with a certificate of insurance which
evidences the minimum levels of insurance set forth above and names the
requesting party as an additional insured. Each party also agrees, at its
respective sole cost, to carry and keep in full force and effect at all times
during the term of this Agreement and during any extension thereof, a workers
compensation insurance policy in an amount not less than prescribed by statutory
limits.
Section 17
USE OF NAMES, LOGOS, SERVICE MARKS, ETC.; MARKETING AND PUBLIC RELATIONS
17.1 a. Except for such use and for use for the purposes of identification
of the Services, no right, title, interest, or license in or to any trademark or
service mark of CAIS is granted to ONEPOINT under this Agreement. ONEPOINT may
on its business cards state that ONEPOINT is an authorized provider of CAIS's
Services for sub-licensing of the Services of CAIS. CAIS shall be permitted to
identify ONEPOINT in marketing and related material to promote CAIS' services.
Except as provided herein, no party may otherwise use the name, logos, trade
names, service marks, trademarks, printed materials, or art work of any other
party, or of any third party, in any promotional or advertising material without
the prior consent of such party or such third party.
b. Public Relations Program. The Parties agree to implement a joint
-----------------------------
public relations program including a series of joint press releases, media
interviews, and on-going handling of media inquiries, as determined and mutually
agreed to by the Parties before publication. This program is to include the
joint announcement of the Parties Agreement through traditional press releases,
postings on each Party's web site(s), and the establishment of appropriate
hyperlinks between both Parties' web sites.
Section 18
COST OF LITIGATION
18.1 In the event of litigation arising under this Agreement, upon final
judgment and award of a court of competent jurisdiction, the prevailing party
shall be entitled to recover, in addition to other amounts awarded under such
judgment, reasonable attorney fees of such prevailing party.
Section 19
NOTICES
OnePoint - Channel Agreement - Confidential
Page 23
19.1 All notices, demands, or consents required or permitted under this
Agreement shall be in writing and shall be delivered personally, or sent by
overnight delivery service or certified or registered mail to the appropriate
party at the address set forth in the first paragraph of this Agreement or at
such address as shall be given by either party to the other in writing.
Section 20
MISCELLANEOUS
20.1 This Agreement shall be deemed to be made in the District of Columbia,
and shall in all respects be interpreted, construed, and governed by and in
accordance with the laws of the District of Columbia.
20.2 The parties agree that any suit to enforce any provision of this
Agreement arising out of or based on this Agreement or the business relationship
between any of the parties hereto shall be brought in the United States District
Court for the District of Columbia, or the local courts of the District of
Columbia. Each party hereby agrees that such courts shall have in personam
jurisdiction with respect to such party, and each party hereby submits to the in
personam jurisdiction of such courts.
20.3 Each party agrees to keep each and every item to which the other party
retains title free and clear of all claims, liens, and encumbrances except those
of such other party, and any act of such first party, either voluntary or
involuntary, purporting to create a claim, lien or encumbrance on such an item
shall be void. Any equipment which is owned solely by one party to this
Agreement may be encumbered by such party as such party deems appropriate.
20.4 Each party hereby acknowledges that, in the event such party breaches
its duties under this Agreement, the other party will suffer immediate and
irreparable damage, and that injunctive relief will be appropriate. Any and all
remedies herein expressly conferred upon a party shall be deemed cumulative and
not exclusive of any other remedy conferred hereby or by law on such party, and
the exercise of any one remedy shall not preclude the exercise of any other.
20.5 Invalidity of Provisions. If any covenant or provision is ultimately
------------------------
determined to be invalid, illegal or incapable of being enforced, all other
conditions and provision, contained herein shall, nevertheless, remain in full
force and effect, and no covenant or provision shall be dependent upon any other
covenant or provision unless so expressed herein.
20.6 Survival. The provisions of Sections 9.1 though 9.9, 10, 12, 15.2,
--------
17, and 20.4 shall survive the expiration or termination of this Agreement.
20.7 Assignment. Either party shall have the right to assign this
----------
Agreement to any affiliated entity or in connection with the sale or transfer of
all or substantially all of such party's assets. Each party's respective rights
and obligations under this Agreement shall inure to the
OnePoint - Channel Agreement - Confidential
Page 24
benefit of and be binding upon such party's successors and assignees. Neither
party shall assign this Agreement or any interest therein without the other
party's prior written consent, which consent shall not be unreasonably withheld.
Any assignment or transfer without the required consent is void. A sale of a
controlling interest in a party, including but not limited to a transfer of 50%
or more of the voting securities of such party, shall be considered a transfer
under this Agreement.
20.8 Entire Agreement. The parties agree that this Agreement is the
----------------
complete and exclusive statement thereof between the parties and that it
supersedes and merges all prior proposals and understandings, and all other
agreements, whether oral or written, between the parties relating to the subject
matter hereof. This Agreement may not be modified or altered except by a
written instrument duly executed by the parties hereto.
20.9 Amendments; Waivers; Remedies. This Agreement, or any of its
-----------------------------
provisions may not be amended, supplemented, or modified, and no provision may
be waived, unless such amendment, supplement, modification, or waiver is in
writing and signed by the party against whom enforcement of any of the foregoing
is sought. The waiver of any breach or default under this Agreement does not
constitute the waiver or an other breach or default, whether or not similar, nor
any subsequent breach of the same provision. The election by either party of
any right or remedy contained in this Agreement is not exclusive of any other
rights or remedies in law or equity other than as may be limited by this
Agreement.
20.10 Counterparts. This Agreement may be executed in two or more
------------
counterparts, each of which is an original, but all of which together shall
constitute one and the same instrument.
20.11 Authority to Execute; Binding Effect. The individuals signing this
------------------------------------
Agreement represent and warrant that they are authorized to bind and do so bind
the party on behalf of which they are executing this Agreement. This Agreement
is binding on the parties and their respective successors and permitted assigns.
20.12 Compliance with Laws. During the term of this Agreement, each party
--------------------
must comply with all local, state and federal laws and regulations applicable to
its business and the performance of its obligations under this Agreement.
20.13 Force Majeure. Either party's delay in, or failure of, performance
-------------
under this Agreement is excused, to the extent any delay in its performance is
caused by or is the result of factors beyond its control, including act of God,
fire or other catastrophe, electrical, explosion, accident, flood, storm,
vandalism, strike or lock-out , work stoppage, or acts of government or agencies
thereof outside such party's reasonable control.
20.14 Third Parties. The provisions of this Agreement and the rights
-------------
and obligations created hereunder are intended for the sole benefit of CAIS and
ONEPOINT, and do not create any right, claim or benefit on the part of any
person not a party to this Agreement, including Building Representatives,
Subscribers and sub-contractors.
OnePoint - Channel Agreement - Confidential
Page 25
IN WITNESS, WHEREOF, the parties have caused this Agreement to be executed by
their duly authorized officers, indicating their acknowledgment, acceptance and
approval thereof as of the date first written above.
ONEPOINT COMMUNICATIONS CORP. CAIS, INC.
/s/ William F. Wallace /s/ Evans K. Anderson
-------------------------------- -------------------------------
Name Name
President SR VP Sales and Markerting
-------------------------------- -------------------------------
Title Title
2/19/99 2/19/99
-------------------------------- -------------------------------
Date Date
OnePoint - Channel Agreement - Confidential
Page 26
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