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EXHIBIT 10.25
SERVICES AGREEMENT
THIS IS A SERVICES AGREEMENT ("Agreement") dated as of the 15th day of
March, 1999, by and between (i) HIGH SPEED ACCESS CORP., a Delaware corporation,
and its successors and assigns ("HSA"); and (ii) DARWIN NETWORKS, INC., a
Delaware corporation, and its successors and assigns ("Darwin").
R E C I T A L S:
X. Xxxxxx engages in the business of providing high-speed
Internet access via digital subscriber lines (the "Operations").
X. Xxxxxx wishes to enter into an agreement whereby HSA will
provide to Darwin and on Darwin's behalf, certain financial, accounting,
engineering, customer service, network monitoring, and other professional staff
services (the "Services", as further described in Section 2 below).
C. HSA wishes to perform such Services on behalf of Darwin,
and the parties hereto wish to reduce to writing their understanding with
respect to the matters contained herein.
NOW, THEREFORE, the parties hereto, in consideration of the mutual
covenants contained herein and for other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, agree as follows:
1. Independent Contractors. It is understood and agreed that the
relationship between the parties hereto is that of independent contractors, and
nothing herein contained shall be deemed to create or authorize the creation of
the relationship of partnership or joint venture between HSA and Darwin.
2. HSA's Obligations. HSA shall perform the following services for and
on behalf of Darwin (collectively, the "Services") as more particularly
described on Exhibit A attached hereto and made a part hereof:
A. Financial functions, including:
[1] billing and collections, general accounting,
financial reporting and cash flow, data processing, bookkeeping and
general record-keeping;
[2] treasury and payroll, including banking and cash
management, (i.e., the handling and issuance of checks and other
negotiable instruments pertaining to Darwin's accounts payable and
payroll); human resources and employee benefits;
[3] in-house legal and business development support;
and
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[4] as it relates to the Operations, governmental
compliance functions necessary to enable Darwin to meet the reporting,
record-keeping, and budgetary requirements of all applicable statutes,
rules or regulations of all governmental agencies.
B. Management information system functions, including central
office local area network (LAN) design and management.
C. Network monitoring, including 24 hour monitoring of Darwin
installations through HSA's network operations centers.
D. Help desk, including 24 hour maintenance of 1-800 number
hotline.
E. Engineering and installation support as requested.
F. ISP services, including e-mail, news and web hosting.
G. Human resources support, including payroll, benefits
administration, recruiting and hiring support.
H. Backbone services including data access and transport and
Internet porting.
I. Lease/purchase management: purchase for and/or lease to
Darwin on an "arms-length" basis any necessary office equipment, furniture and
fixtures, and supplies for Darwin's account, and, at HSA's option, if Darwin has
no funds available therefor, any field equipment necessary for the Operations.
J. Such other services as the parties shall agree from time to
time.
In performing Services on behalf of Darwin, HSA shall use the
same degree of care and diligence as it uses in the performance of comparable
duties for its own account, provided, that HSA shall not be obligated to
commence legal proceedings for the purposes of collecting Darwin's accounts
receivable.
3. Darwin's Obligations. The obligations of Darwin shall consist of the
following:
A. To provide assistance and cooperation in all billing of
services for the period in which this Agreement is effective and to pay over to
HSA, immediately upon receipt thereof, any payments or reimbursements for such
services.
B. To establish policies affecting the Operations which are
not inconsistent with the responsibilities assigned to HSA under the terms of
this Agreement.
C. To cooperate with HSA in executing all forms and returns
required pursuant to applicable taxing statutes, federal, state and local rules
and regulations and governmental reimbursement programs.
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4. Revenues, Costs of Operation and Service Fee.
A. All revenues from the operations of, or any interest earned
on any deposits or accounts maintained under this Agreement for, Darwin and the
Operations shall be deposited into and paid out of one or more bank accounts
established by HSA and Darwin (at a financial institution selected by HSA and
Darwin) for the payment of the following items on a monthly basis in the
following order of priority: (i) the Costs of Operation (as defined in Section
4.B below); (ii) the service fees described on Exhibit B attached hereto
("Service Fees"); and (iii) any outstanding cash advances made by HSA as
contemplated herein or hereunder. HSA shall not commingle any funds of Darwin
received or controlled by it pursuant to this Agreement with any funds of HSA.
B. The "Costs of Operation" shall include, but are not limited
to: (i) all costs and expenses incurred in the operation and management of the
Operations, including, without limitation, utilities prorations, rents under any
leases, and salary, compensation or payments to the employees of Darwin; (ii)
all premiums or charges for insurance coverage with respect to the Operations,
(iii) all expenses and costs incurred in connection with the purchase of
necessary supplies and supplies supplied by independent contractors, and (iv)
any ad valorem taxes payable with respect to any personal property owned by
Darwin for the period this Agreement is effective.
C. HSA is authorized to pay each invoice for Service Fees
unless within ten (10) days of presentation of such invoice Darwin shall notify
HSA of its objections.
5. Working Capital. HSA is hereby authorized to incur expenses and
liabilities in the ordinary course of rendering the services described herein.
To the extent funds are available therefor, HSA shall pay timely all Costs of
Operation but shall have no liability for and shall not be obligated to provide
funds for any Costs of Operation to the extent Darwin shall not have any funds
available therefor. HSA may provide at its option, but shall not be obligated to
provide, any working capital for the Operations.
6. Term. Unless earlier terminated in accordance with Section 7 hereof
or further extended as provided herein, this Agreement shall commence effective
at 12:01 a.m. local time on March 15, 1999 ("Commencement Date"), and shall
extend for a period of six (6) months (the "Term"); provided, that either Darwin
or HSA may terminate all or any particular Service on thirty (30) days notice.
The Term will be subject to automatic renewals of six (6) months each unless
either party provides written notice of its election to terminate this Agreement
at least thirty (30) days prior to the expiration of the then existing Term.
7. Default and Termination.
A. The following shall be deemed to be an "Event of Default"
hereunder:
[1] If any licenses or permits applicable to the
Operations are canceled or revoked because either party has failed to
perform its obligations hereunder and such
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party is not, in good faith, diligently pursuing the reinstatement of
such licenses or permits.
[2] If either party becomes insolvent or makes an
assignment for the benefit of creditors or commits an act of bankruptcy
or files a voluntary petition under the provisions of the United States
Bankruptcy Code, including without limitation, a petition for
reorganization or arrangement or consents to an involuntary petition or
is adjudicated a bankrupt.
[3] If either party violates, or is in breach of, any
material term or condition of this Agreement.
B. The party with respect to which an Event of Default is not
applicable may declare this Agreement terminated immediately.
C. Upon termination of this Agreement for any reason, any
outstanding accrued Service Fee and any advances by HSA pursuant to Section 5
hereof (collectively, "HSA Obligations") shall become immediately due and
payable and HSA is authorized to pay such amounts to itself from the accounts
maintained by it pursuant to Section 4.A hereof within five (5) days after
submission to Darwin of a calculation of such amounts.
8. Cooperation at Termination. Upon the expiration or earlier
termination of this Agreement, the parties hereto shall cooperate fully with the
other in effecting an orderly transition to avoid any interruption in the
rendering of the Services and, in that connection, HSA shall surrender to Darwin
all contracts, books, records and reports maintained by HSA with respect to the
Operations.
9. Indemnification. The party with respect to which an Event of Default
is applicable (the "Defaulting Party") shall indemnify and hold the other party
and its shareholders, directors, officers, employees and agents harmless from
any and all liabilities, losses, damages, claims, and costs arising from an
Event of Default, except for liabilities, losses, damages, claims, and costs
arising from the non-Defaulting Party's gross negligence, bad faith or willful
misconduct.
10. Parties Bound. The provisions of this Agreement shall be binding
upon the parties hereto and their respective successors and assigns. Except as
specifically provided herein, no assignment of rights or delegation of duties
shall relieve either party, as the case may be, of its obligations hereunder.
Except as specifically provided herein, neither party may assign its rights or
delegate its duties under this Agreement without the prior written consent of
the other party; provided that a party may assign its rights and delegate its
duties to any successor entity in the event of a merger or a sale of
substantially all of the party's assets if the successor entity assumes all of
the party's obligations hereunder.
11. Severability. In the event any provision hereof shall be modified
or held ineffective by any court in any respect, such adjudication shall not
invalidate or render ineffective the balance of the provisions of this
Agreement.
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12. Entire Agreement; Modification; Waiver. This Agreement constitutes
the entire agreement between the parties with respect to the subject matter
hereof and completely supersedes all prior oral agreements between the parties.
All other agreements with respect to the subject matter hereof between the
parties, whether written or oral, are merged herein. No supplement,
modification, or amendment of this Agreement shall be binding unless executed in
writing by the parties hereto. No waiver of any of the provisions of this
Agreement will be deemed, or will constitute, a waiver of any other provision,
whether or not similar, nor will any waiver constitute a continuing waiver. No
waiver will be binding unless executed in writing by the party making the
waiver.
13. Execution in Counterparts. This Agreement may be executed in
multiple counterparts, each of which shall be deemed an original, but all of
which together shall constitute one and the same document.
14. Further Assurances. The parties each hereby agree to execute and
deliver all of the agreements, documents, and instruments required to be
executed and delivered by them in this Agreement and to execute and deliver such
additional instruments and documents and to take such additional actions as may
reasonably be required from time to time in order to effectuate the transactions
contemplated by this Agreement.
15. Tense; Captions. In construing this Agreement, whenever
appropriate, the singular tense shall also be deemed to mean the plural, and
vice-versa, and the captions contained in this Agreement shall be ignored.
16. Governing Law. This Agreement shall be construed, interpreted, and
enforced in accordance with the substantive laws of the Commonwealth of
Kentucky.
17. Parties in Interest. Nothing in this Agreement, whether express or
implied, is intended to confer any rights or remedies under or by reason of this
Agreement on any persons other than HSA and Darwin and their respective
successors and assigns, nor is anything in this Agreement intended to relieve or
discharge the obligation or liability of any third persons to any party to this
Agreement.
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IN WITNESS WHEREOF, the parties have executed this Agreement as of the
day and year first set forth above.
DARWIN NETWORKS, INC.
By: /s/ XXXXX XXXXX
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Xxxxx Xxxxx, President
HIGH SPEED ACCESS CORP.
By: /s/ W. XXXX XXXXX, III
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W. Xxxx Xxxxx, III, Chief Operating Officer
