Exhibit 10.16
FORM OF
SUBSCRIPTION AGREEMENT
GENERAL TERMS
This sets forth the general terms of the Subscription Agreement (the
"Agreement") under which [Generic School District ("Generic")] at [ADDRESS]
will participate in the ZapMe!-TM- netspace program from the ZapMe! Corporation
at ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇ ▇▇▇▇▇, ▇▇ ▇▇▇▇▇ ("ZapMe!") for a
period of three full school years, plus the partial school year in which
installation occurs, (the "Initial Term"), subject to the extension as
hereinafter set forth. These general terms form part of the Subscription
Agreement between [Generic] and ZapMe!.
A. INTRODUCTION
ZapMe! will provide to [Generic] the following equipment, software, and
services (collectively called the "System") without charge or fee:
1. Installations of a local area network at various agreed-on locations
within the schools that are part of or belong to [Generic] or over
which [Generic] exercises administrative control. Included in each
installation is the proposed equipment listed on Exhibit A ("the
Equipment") subject to upgrades, additions and changes from time to
time by ZapMe!, at its sole discretion.
2. Software permitting the System to be operated to ZapMe! netspace
specifications.
3. Support and maintenance services as ZapMe! in its reasonable
discretion shall determine is necessary to keep the System
operational.
4. Initial training on the use of the System for [Generic's] faculty
staff, and follow-on training as ZapMe! in its reasonable discretion
shall determine is necessary or appropriate.
ZapMe!'s obligations under this Agreement are subject to [Generic] meeting each
and every obligation of [Generic] set forth in this Agreement.
B. ZAPME!'S OBLIGATIONS
ZapMe! agrees to perform the following with regard to the System:
1. ZapMe! shall deliver and install the Equipment at mutually agreed upon
locations.
2. ZapMe! shall provide reasonable maintenance and repair of the
Equipment against normal wear and tear (not including damage caused by
vandalism, misuse and the like).
3. ZapMe! shall perform a "Site Survey" to determine (in its sole
discretion) whether the location selected by [Generic] is adequate for
the installation and operation of the Equipment and the System.
4. ZapMe! shall provide a toll-free number so [Generic] can obtain
support, report malfunctions, and otherwise contact ZapMe!-TM-
concerning the System.
5. ZapMe! shall require that its employees, agents, and contractors abide
by all of [Generic's] rules and policies concerning conduct while on
any [Generic] school campus(s), including "checking in" at the main
office prior to entering campus grounds or buildings.
C. [GENERIC'S] OBLIGATIONS
[Generic] agrees to perform the following with regard to the System.
1. With regard to the installation of the Equipment, [Generic] agrees to
provide the following: (i) adequate space and power for the computer
workstations and printer (if printer is provided); (ii) secure
location for the network server, its switches, hubs and cabling, with
adequate power and a dedicated standard analog telephone line that can
be connected to the Internet; (iii) rooftop or other location for the
satellite antenna with a clear and unobstructed path for its signal
and a means to securely attach the antenna; (iv) the ability to
connect all components of the System with required cabling at a
reasonable cost, as determined by ZapMe! in its sole discretion; (v)
any other requirements, as determined by ZapMe!, in its sole
discretion. If at any time any of the conditions contained is this
paragraph cannot be met or maintained by [Generic] then ZapMe! at its
sole discretion will have the right to terminate this Agreement and
[Generic] shall provide ZapMe! reasonable access to its facilities to
retrieve any Equipment.
2. [Generic] agrees to use its best efforts to protect the Equipment and
the software from abuse, damage, destruction, misuse, including but
not limited to unauthorized access, unauthorized duplication of files,
unauthorized alteration or circumvention of protective barriers in the
System, theft, vandalism, fire and flood damage.
3. [Generic] agrees to appoint a faculty member or members who will act
as the System Administrator, upon whom ZapMe! may rely on as being the
contact person for ZapMe!, with authority on behalf of [Generic] on
all matters concerning the System. The System Administrator shall be
reasonably available at all times.
4. [Generic] agrees to give ZapMe! reasonable access to the Equipment for
the purpose of maintenance, repair, making modifications, installing
upgrades, and generally observing the usage of the System.
5. [Generic] agrees to insure all Equipment located at or on [Generic's]
site against damage as a result of vandalism, theft, fire damage,
flood and/or earthquake, power surges and/or lightning strikes.
[Generic] will add ZapMe! as an additional
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insured under such policy(ies) or programs and will provide ZapMe!
with a certificate thereof or other written evidence indicating ZapMe!
shall be a beneficiary of such insurance within thirty (30) days of
[Generic's] execution hereof.
6. [Generic] agrees to allow ZapMe! to use its name, photographs, videos,
or recordings of the System and the use of the System, including
interviews with students and faculty for publication in general media
and/or solicitation of corporate Sponsors of the System, subject to
[Generic's] privacy policy concerning students' and faculty's personal
information and applicable law.
7. [Generic] agrees that commencing sixty (60) days after completion of
the installation of the Equipment and activation of the System
[Generic] will maintain an average of four (4) hours of usage per
computer terminal per school day, excluding vacation days, weekends,
summer vacations and days that the System is not in Service.
8. [Generic] agrees to use the Equipment only for the System and not for
any other use without the prior written consent of ZapMe!.
9. [Generic] agrees not to install, change, or delete any software on the
Equipment without the prior written consent of ZapMe!.
10. [Generic] agrees if a printer is provided with the System, [Generic]
will pay for the cost of consumable supplies such as paper and ink or
toner replacement cartridges.
11. [Generic] agrees not to rent, lease, or allow the usage of the
Equipment or the System by any third party without the prior written
consent of ZapMe!. For the purpose of this clause "third party" shall
mean anyone other than [Generic's] students and their parents,
faculty, employees, and any user that is participating in a [Generic]
sponsored community educational program.
12. [Generic] agrees to notify ZapMe! within 48 hours of finding a
malfunction or other problem with the Equipment or the System.
13. [Generic] shall identify the presence of asbestos on [Generic's]
premises or in [Generic's] facilities. [Generic] acknowledges that if
during the installation of the Equipment ZapMe! encounters asbestos in
[Generic's] premises or facilities which interferes with installation,
either [Generic] or ZapMe! may terminate this Agreement.
14. [Generic] is responsible for obtaining zoning and building permits or
waivers when required. This Agreement is not binding on ZapMe! unless
[Generic] furnishes the required zoning and building permits or
waivers or satisfactory evidence that the permits or waivers are not
required.
15. [Generic] agrees that all users will be required to abide by ZapMe's
terms of use, as expressed in ZapMe!'s "User Agreement" that all users
shall be required to agree to before accessing the System. A copy of
the current User Agreement is attached hereto as Exhibit B. [Generic]
acknowledges that as the System is refined and upgraded, the terms and
conditions of the User Agreement may be modified at the sole
discretion of ZapMe!. [Generic] hereby grants ZapMe! permission to
monitor usage of the System, including but not limited to usage by
[Generic's] students and faculty, subject to ZapMe!'s privacy policy.
16. [GENERIC] AGREES THAT IT WILL TRAIN ITS FACULTY TO WARN STUDENTS PRIOR
TO USING THE SYSTEM AGAINST ACTUALLY MEETING WITH PEOPLE THEY HAVE MET
ON THE NETWORK WITHOUT THE CONSENT OF A PARENT OR GUARDIAN. [GENERIC]
AGREES THAT IT WILL PERIODICALLY (AND IN ANY EVENT NOT LESS THAN ONCE
PER MONTH) REMIND STUDENTS OF THIS PRECAUTION.
17. [Generic] acknowledges that the System is supported by selling
advertising to corporate and other for-profit sponsors ("Sponsors")
and agrees that Sponsors will be allowed to display their logos, name,
brands, advertising and/or other corporate information on the System
including in some cases links to the Sponsors' websites, and to take
advantage of the interactive nature of the System.
18. [Generic] agrees that ZapMe! may grant on-site access to the System to
ZapMe!'s sponsors or other commercial partners of ZapMe!, including
providers of testing and supplementary educational services. Access
would, in the absence of [Generic's] consent, occur only during
off-school hours and would be subject to compliance with any policies
and procedures Subscriber has adopted regarding access to [Generic's]
premises.
19. [Generic] shall maintain at all times an accurate log of users that
includes the actual identity of each user of the System that has been
provided an account through [Generic]. [Generic] shall also furnish
ZapMe! with a modified log that indicates the age, grade and gender of
the user (or whether the user is a faculty member, as the case may be)
so ZapMe! may: (i) accurately register or confirm the registration of
each student and faculty member on the System; (ii) maintain a list of
user names and passwords for students and faculty; and/or (iii) assign
and maintain an email system for the students and faculty. [Generic]
agrees to update this list before the start of each school semester.
ANY PERSONAL INFORMATION THAT ZAPME! RECEIVES FROM [GENERIC] OR ANY
USER WILL NOT BE DISTRIBUTED TO ANY THIRD PARTY, OTHER THAN AS
REQUIRED BY LAW OR AS NECESSARY TO AVOID IMMEDIATE DANGER OF PHYSICAL
HARM TO PERSON OR PROPERTY.
20. [Generic] agrees to facilitate a student "take home" marketing
program. On at least three (3) occasions per school year, [Generic]
will distribute to its students take home materials which may contain
a home version of the Network, Sponsor's commercial advertising and/or
information about contests, scholarships, promotions, and educational
programs. While [Generic] shall be obligated to encourage students to
take home such materials, [Generic] shall not be deemed to endorse any
such materials and shall not be required to violate any policies or
procedures adopted by [Generic] with respect to take-home programs.
21. [Generic] agrees to keep the System powered up on a twenty-four (24)
hours per day, seven (7) days per week basis in order for ZapMe! to
periodically access the System for updates and other administrative
and maintenance procedures.
22. [Generic] agrees to limit the issuance of e-mail accounts to
individuals ages 13 and above.
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D. MISCELLANEOUS TERMS
1. Automatic Renewal. This Agreement will automatically be extended for
an additional one (1) year term ("Renewal Term") without change of
Equipment, unless [Generic] or ZapMe! notifies the other to the
contrary ninety (90) days prior to the end of the Initial Term or any
subsequent Renewal Term of this Agreement. The termination and renewal
procedures provided for herein shall apply in any subsequent Renewal
Term.
2. Ownership of Equipment. ZapMe! shall retain ownership of any and all
aspects of the System including but not limited to the Equipment, any
software included with the System, any and all tradenames, trademarks,
copyrights, licenses and/or proprietary graphics and designs.
3. Ownership of Contributed Material. In the event that [Generic] or any
of its users submits or contributes any lesson plans, website links,
data, educational content or other material of any kind to ZapMe!,
this information whether used or not shall become the property of
ZapMe! and in no event shall ZapMe! be required to provide
compensation in any form to [Generic] or any user of the System unless
otherwise agreed to in writing.
4. Removal of Equipment. In the event of termination of this Agreement by
either party, ZapMe! shall have free and reasonable access to retrieve
the Equipment and all other components of the System as originally
installed or as subsequently modified or upgraded.
5. Viewing Optional. [Generic] represents and covenants that [Generic's]
students shall not be required, mandated or coerced into viewing or
using the System and use by students shall be strictly voluntary at
all times.
6. Email System, User Name, Password. [Generic] acknowledges that there
will be an electronic mail system ("Email") that will be an integral
part of the System. All users will be assigned an address, mailbox,
and a "log on user name and password" for access to the System and
Email. [Generic] hereby agrees to indemnify, defend and hold harmless
ZapMe! from all liabilities, losses, claims, damages and expenses
arising from any content transmitted or received through the email
system. [Generic] acknowledges that ZapMe! is not responsible for
content of email transmitted or received by users or other third
parties.
7. Accessing Objectionable Material. [Generic] and ZapMe! both
acknowledge there exists the possibility that some material accessible
on or through the System may be deemed harmful to minors or otherwise
objectionable by the students or their parents or legal guardians
("Objectionable Material"). ZapMe! hereby disclaims any responsibility
or liability for any Objectionable Material accessed on or through the
System. [Generic] hereby agrees to indemnify, defend and hold harmless
ZapMe! from all liabilities, losses, claims, damages and expenses
arising from the access to Objectionable Material, if any. [Generic]
acknowledges that ZapMe! is not responsible for content on the
Internet. [Generic] understands that the risk of student's viewing
Objectionable Material may be reduced by restricting access to the
ZapMe! intranet (which restricts access to the Internet generally) and
by installing available filtering software.
8. Termination.
a. Expiration of Agreement. This agreement shall not renew if either
party gives the other party ninety (90) days written notice prior
to expiration of the Agreement. Otherwise this agreement will
renew as per "General Terms" at the beginning of this Agreement.
b. Termination by [Generic]. [Generic] may terminate this Agreement
upon the occurrence of any of the following events: (i) if ZapMe!
breaches its obligations under this Agreement; (ii) if
participation by [Generic] in the System violates any law,
ordinance or regulation.
c. Termination by ZapMe!. ZapMe! may terminate this Agreement upon
the occurrence of any of the following events: (i) if [Generic]
breaches its obligations under this Agreement; (ii) if the
satellite dish or any component of the System is damaged,
destroyed or stolen and if ZapMe! determines, in its sole
discretion, that occurrence of damage, destruction or theft at
[Generic's] campus is excessive; (iii) if ZapMe! is unable to
maintain sufficient Sponsors for the System; (iv) participation
by [Generic] in the System, or the System violates any law,
ordinance, or regulation; or (v) if ZapMe! provides [Generic] 30
days written notice of its intent to terminate.
d. Removal of Equipment. In the event of Termination ZapMe! shall
have the right but not the obligation to remove the Equipment. In
the event of Termination [Generic] shall give ZapMe! full
reasonable access to remove the Equipment should ZapMe! elect to
make such removal.
9. No Assignment. This Agreement may not be assigned by [Generic] without
the prior written consent of ZapMe!.
10. Governing Law. This Agreement shall be governed by and construed in
accordance with the laws of the State of California.
11. Entire Agreement. This instrument contains the entire agreement
between the parties with respect to the subject matter hereof, and
supersedes any and all prior negotiations, or agreements written or
oral and may be modified only in written form executed by the parties.
12. Binding Effect. The terms and conditions of this Agreement shall inure
to the benefit of, and be binding upon, the respective successors and
assigns of the parties.
13. Force Majeure. ZapMe! shall not be in violation of any of its
obligations in this Agreement in the event occurrences beyond its
reasonable control prevent its performance.
14. Damage during Installation or Removal. ZapMe! shall not be obligated
to remove any wiring during removal of the Equipment for any reason.
Repair of any damage during installation or removal of Equipment to
[Generic] shall be done on a "patch to match" basis.
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15. Waivers. No Waiver or failure of enforcement by either of the parties
hereto of any term or condition of this Agreement shall be effective
unless in writing, nor shall it operate as a waiver of any other
breach of such term or condition or of any other term or condition.
16. Interpretation. The captions used in this Agreement are for
convenience and reference only and shall not be considered as part of
this Agreement.
17. Counterparts. This Agreement may be executed in counterparts, each of
which shall be deemed an original, and all of which when taken
together shall constitute one and the same instrument.
18. Authority. The individuals executing this Agreement and any and all
documents in furtherance of this Agreement have the legal power, right
and actual authority to bind their respective parties.
19. Future Sites. In the absence of a new agreement, the parties agree
that the addition of any future Systems or equipment at any [Generic]
site(s) or school campus(s) shall be bound under the terms of this
Agreement.
20. Effective Date. This Agreement shall become effective and binding on
the parties on the date that [Generic] signs the Agreement.
[GENERIC SCHOOL DISTRICT] ZAPME! CORPORATION
DATE SIGNED__________________________ DATE SIGNED__________________________
BY:__________________________________
PRINTED NAME:________________________
TITLE:_______________________________ _____________________________________
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EXHIBIT A
TYPICAL EQUIPMENT LIST FOR EACH SCHOOL
This list is subject to availability of equipment, power, space, telephone
lines, and also may be changed or upgraded over the term of the Agreement. The
person assigned to take delivery for [Generic] will sign for the actual
equipment delivered and installed at mutually agreed upon locations. The
following is the typical equipment to be installed at a school:
1. Fifteen (15)* computer workstations, including keyboards, mice, and
monitors.
2. One network server system including a multi-port hub and cabling to
the workstations.
3. One mounted satellite antenna cabled to the network server.
4. 1 printer.
5. Software necessary to operate the System.
* Smaller schools or schools with insufficient space to accommodate ZapMe!'s
standard configuration may receive fewer computers.
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Exhibit "B"
(THIS IS AN ELECTRONIC FORM THAT USERS MUST AGREE TO BEFORE ACCESSING
THE SYSTEM)
ZAPME! USER AGREEMENT AND PRIVACY POLICY
USER AGREEMENT. ZapMe! Corporation (ZapMe!) hereby grants all users of the
ZapMe!-TM- netspace, (the "Network") a non-exclusive, non-transferable
license to use the Network subject to the terms and conditions listed below.
Before starting each session, all users shall agree:
1. To abide by the following rules with respect to your username and
password: (i) only use your own; (ii) never give to anyone else; (iii)
notify ZapMe! immediately if lost, stolen, or used by a third party.
2. To abide by the acceptable use policies, rules and standards of
conduct of [Generic] and the Network.
3. To abide by all applicable federal, state and local laws, including
but not limited to such laws pertaining to computer crime,
unauthorized computer access and the Electronic Communications Privacy
Act of 1986.
4. If you are a minor, not to meet in person with people that you have
met on the Network without the consent of a parent or guardian.
5. Not to write, post, transmit or use material which is threatening,
defamatory, lewd, vulgar, obscene, profane, or disrespectful while
using the Network.
6. Not to engage in personal attacks or harassment, including
prejudicial, racial, or discriminatory attacks.
7. To immediately report any adult, offensive or otherwise objectionable
material appearing on the Network to ZapMe! or the local system
administrator, and to acknowledge that ZapMe! is not responsible for
any such material encountered during your use of the Network.
8. Not to use the Network for the purpose of sending unsolicited email to
individuals, mailing lists or newsgroups. This practice is commonly
referred to as "spamming."
9. Not to resell or use the Network for commercial purposes.
10. To abide by all software license agreements and other intellectual
property agreements and all applicable laws related to copyright,
trademark, patent and other proprietary rights in connection with the
access, display, distribution or any other use of any material
available on or through the Network.
11. To acknowledge that any submission or contribution of any lesson
plans, website links, data, educational content, or other material of
any kind to ZapMe! shall become the property of ZapMe! and in no event
shall ZapMe! be required to provide compensation in any form unless
otherwise agreed to in writing.
12. To hold ZapMe! harmless from any responsibility, liability, damage,
injury or loss of any kind arising from use of the Network.
13. To agree that ZapMe! has the right to deny access to the Network or
terminate use of the Network to anyone at any time without notice.
PRIVACY POLICY: It is ZapMe!'s general policy not to collect personal
identifying information from our users. We strongly discourage any "minor"
(individual under the age of 18) using the Network from disclosing any personal
identifying information including, but not limited to, his or her name, address,
phone number, e-mail address or Social Security number without first getting
permission from his or her parent or guardian. The local System Administrator
will maintain a log of account user identities and any questions regarding
specific user identities or accounts should be directed to the System
Administrator. From time to time, it may be necessary for students to provide
personal identifying information in order to operate the Network services and
programs, such as e-mail or in connection with the distribution of credit,
prizes, scholarships, other winnings, awards and/or recognitions. ZAPME! WILL
NOT DISTRIBUTE TO THIRD PARTIES ANY PERSONAL IDENTIFYING INFORMATION RECEIVED
FROM ITS USERS, EXCEPT AS REQUIRED BY LAW OR AS ZAPME!, IN ITS SOLE DISCRETION,
DEEMS NECESSARY TO AVOID IMMEDIATE DANGER OR PHYSICAL HARM TO PERSONS OR
PROPERTY. ZAPME! ENCOURAGES BUT DOES NOT REQUIRE THIS SAME POLICY FROM ITS
SPONSORS AND THEREFORE FOREWARNS ITS USERS TO REVIEW THE PRIVACY POLICY OF
SPONSORS OR ANY OTHER THIRD PARTIES REQUESTING PERSONAL INFORMATION ON THE
NETWORK AND GET HIS OR HER PARENT'S OR GUARDIAN'S PERMISSION BEFORE GIVING
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OUT ANY PERSONAL INFORMATION. ZapMe! may monitor the Network and compile
statistics and demographics with regard to the habits, viewing preferences, and
other non-identifying information, such as age and gender, about the Network's
users. ZapMe! may distribute to third parties any of this aggregated
statistical, demographic or non-identifying information for commercial purposes.
In addition, ZapMe! may share non-identifying information such as age, gender
and zip code of its users with its third party partners.
NO WARRANTY CLAUSE: ZAPME! EXPRESSLY DISCLAIMS ALL WARRANTIES AND GUARANTIES,
EXPRESS, IMPLIED OR OTHERWISE ARISING, INCLUDING BUT NOT LIMITED TO THE IMPLIED
WARRANTY OF MERCHANTABILITY, ANY IMPLIED WARRANTY OF PERFORMANCE, AND THE
IMPLIED WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE, AND SHALL NOT BE LIABLE
FOR ANY LOSS OF PROFITS, LOSS OF USE, LOSS OF DATA, INTERRUPTIONS OF BUSINESS,
NOR FOR INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, OR PUNITIVE DAMAGES OF ANY
KIND, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. SOME JURISDICTIONS DO
NOT ALLOW THE EXCLUSION OF LIMITATION OF WARRANTIES OR INCIDENTAL OR
CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATIONS MAY NOT APPLY TO YOU.
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