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Exhibit 10.35
INFLOW, INC.
DATA NETWORK EXCHANGE FACILITY SERVICES AGREEMENT
This Data Network Exchange Facility Services Agreement ("Agreement") is
made and entered as of the Effective Date, as defined below, by and between
INFLOW, as defined below, and Customer, as defined below.
CERTAIN DEFINITIONS AND INFORMATION. As used in this Agreement, the
following terms shall have the meanings set forth in this Section:
"Effective Date" shall mean the date this agreement is signed below by
INFLOW.
"INFLOW" shall mean InFlow, Inc., a Delaware corporation, or any
subsidiary or affiliate thereof that delivers all or any portion of the Services
to Customer. INFLOW does business in the State of Colorado as InFlowNet, Inc.
"Customer" shall mean High Speed Net Solutions, Inc., a Florida
Corporation.
"DNX" shall mean the INFLOW data network exchange facility located at
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇., ▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ("Raleigh-Durham DNX"). If this
Agreement relates to more than one DNX, then (1) the additional DNX locations
are listed on Exhibit A or B, and (2) the term "DNX" shall refer to each DNX
individually and collectively.
"Initial Term" shall mean One (1) year from the Effective Date.
"Customer Notice Address" shall be as follows:
High Speed Net Solutions
▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
AGREEMENT. The parties hereby agree as follows:
1. SERVICES AND CUSTOMER EQUIPMENT. Subject to the terms and conditions
of this Agreement, during the term of this Agreement:
a. Services. INFLOW will provide to Customer the services
described in any Exhibit A, attached hereto, as modified by any Service Change
Forms (the "Services"). If more than one DNX is identified above, INFLOW shall
provide the Services at the DNX as specified in the applicable Exhibit A for
that DNX location.
b. Customer Area. The "Customer Area" will mean the location
within the DNX that INFLOW designates for placement of Customer Equipment.
INFLOW shall not relocate the Customer Area without at least 48 hours prior
written notice to Customer.
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c. Customer Equipment. As ▇▇▇ of the Services, Customer will
have a license to install, maintain, use, operate, monitor, repair, and replace
in the Customer Area the equipment set forth in Exhibit B (the "Customer
Equipment"). Customer may not use the Customer Area for any other purpose.
Customer is not granted, ad specifically disclaims, any possessory, leasehold or
other real property interest in the Customer Area, the DNX, or any other portion
of the building or project in which the DNX is located. Without limiting the
foregoing, Customer has no rights whatsoever under INFLOW's lease for the DNX.
d. Service Change Forms. INFLOW and Customer may, at any time
and from time to time after the date of this Agreement, agree to execute one or
more modifications to this Agreement in the form attached hereto as Exhibit B
(collectively, as so executed, the "Service Change Forms"). Any services
modified in such Service Change Forms shall modify the Services under this
Agreement and shall become a part hereof. Notwithstanding the foregoing,
Customer may, from time to time, informally request modifications to Services,
each with a recurring monthly charge equal to or less than $200 and an
installation charge equal to or less than $500, and any such modifications made
by INFLOW shall be incorporated into this Agreement and become a part hereof. In
the event of any discrepancies between the terms and conditions of this
Agreement and the terms and conditions of any Service Change Form, the terms and
conditions of this Agreement shall control, unless the Service Change Form
expressly states otherwise. Nothing in this paragraph or any other provision of
this Agreement shall obligate INFLOW or Customer to agree to any Service Change
Form or to any informal request. Each party shall have the absolute right to
refuse any proposal to modify the terms of this Agreement as they exist now or
at any future time.
2. FEES AND BILLING. Customer will pay INFLOW all fees for the Services
as provided in this Agreement. All such fees are exclusive of sales taxes and
other federal, state, municipal or other governmental taxes now in force or
enacted in the future, all of which Customer will be responsible for and will
pay in full except for any federal or state income taxes payable by INFLOW.
a. Installation Fees. Customer will pay all installation fees
specified in Exhibit A on the Installation Date or fifteen days after any
Customer Equipment has been placed within the DNX, whichever date is earlier.
Customer shall pay all installation fees identified in any Service Change Form
within thirty (30) days of the date of invoice therefor, or as otherwise agreed
in such Service Change Form.
b. Usage Form. Customer shall pay recurring fees for Services
at the DNX as specified in Exhibit A from and after the earlier to occur of (i)
the "Installation Date"; regardless of whether Customer has commenced use of the
Services, and (ii) the date the Customer Equipment is placed in the Customer
Area. If any Service Change Form specifies additional Services, Customer will
pay for such additional services from and after the date INFLOW first provides
such additional Services to Customer or as otherwise agreed in such Service
Change Form.
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c. Billing and Payment Terms. Customer will be billed monthly,
in arrears, for recurring fees for the provision of Services, and payment of
such fees and charges will be due within thirty (30) days of the date of each
INFLOW invoice. All payments will be made in U.S. dollars. Late payments will
accrue interest at a rate of one and one-half percent (1-1/2%) per month, or the
highest rate allowed by applicable law, whichever is lower. If Customer makes a
late payment hereunder, INFLOW will have the right, upon written notice to
Customer, to require payment in advance before the provision of Services, to the
extent permitted by law, or to require other reasonable assurances to secure
Customer's payment obligations hereunder.
d. Customer's Costs. INFLOW will be responsible only for those
costs incurred by INFLOW to provide the Services pursuant to this Agreement.
Customer agrees that it will be solely responsible for all other costs and
expenses that it incurs in connection with this Agreement and the Customer
Equipment.
3. RIGHTS AND OBLIGATIONS.
a. Compliance with Law and Rules and Regulations. Customer
will comply at all times with all applicable laws and regulations with respect
to the Customer Equipment and Customer's use thereof. Customer will also comply
at all times with the terms of (i) this Agreement, and (ii) the terms of
INFLOW's general rules and regulations relating to its provision of Services, as
initially set forth in Exhibit D, which INFLOW may amend from time to time
provided that customer is informed in advance of any such amendments (the "Rules
and Regulations"). Customer acknowledges that INFLOW exercises no control
whatsoever over the content of information passing through the Customer
Equipment and equipment and facilities used by INFLOW to provide Services, and
that it is Customer's sole responsibility to ensure that the information it
transmits and receives complies with all applicable laws and regulations.
b. Access and Security. INFLOW will provide for Customer entry
into the DNX in accordance with INFLOW's security procedures established
pursuant to Section 3(h). INFLOW will provide Customer with one (1) key for each
of the Customer Cabinets and will maintain a spare key at the DNX. Customer will
give written notice to INFLOW of the individuals who are authorized by Customer
to have access to the Customer Area and of any changes to such authorization
from time to time (the "Permitted Individuals"). INFLOW will maintain a list of
the Permitted Individuals and will have the right to limit Customer's access to
the DNX solely to the Permitted Individuals. Subject to the terms of this
Agreement and the Rules and Regulations, the Permitted Individuals will have
access to the Customer Area at all times. While in the DNX, each individual
representing or otherwise entering for or on behalf of Customer (each, including
each Permitted Individual, a "Representative") will comply at all times with the
terms and conditions of this Agreement, including the Rules and Regulations.
Without limiting the foregoing, each Representative will comply with INFLOW's
security and safety procedures, including without limitation, sign-in,
identification and escort requirements as in effect from time to time. INFLOW
may refuse entry to, or require the immediate departure of, any individual who
(i) is disorderly, (ii) has failed to comply with this Agreement, including the
Rules and Regulations, or (iii) has failed to comply with any of INFLOW's other
procedures and requirements after being notified of them.
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c. No Competitive Services. Customer may not at any time
directly or indirectly resell, or permit the resale of cabinet space within the
Data Center without INFLOW's prior written consent.
d. Interconnection. Customer will not physically interconnect
its equipment with equipment of other entities within or serving the DNX or any
other INFLOW facility without INFLOW's prior written consent, which INFLOW may
withhold in its sole discretion.
e. Damage Prevention. Customer shall not damage, or suffer or
permit any damage to, the Customer Area, the DNX, any other portion of the
building or property in which the DNX is located, or the equipment of INFLOW or
any other customer by the Customer Equipment, any Representative, or any other
action or inaction of Customer. The Customer Equipment and Customer's Business
shall not cause damage to the DNX or INFLOW. Customer and its Representatives
will refrain from using any facilities, equipment, tools, materials, apparatus,
or methods that, in INFLOW's sole judgment, might cause damage to the DNX or
otherwise damage or interfere with the equipment or operations of INFLOW or any
other INFLOW customer or other person. INFLOW reserves the right to take any
reasonable action to prevent harm to the services, personnel or property of
INFLOW (and its affiliates, vendors, and customers) or other persons.
f. Safeguarding of Tools. Customer's Representatives may bring
small tools and portable test equipment into the DNX provided that they remove
the same upon their departure from the DNX. Customer will be solely responsible
for the care and safeguarding of all such tools and test equipment. Customer's
Representatives may not bring any other equipment, material, or apparatus into
the DNX without INFLOW's prior written consent. In particular, and without
limiting the foregoing, Customer's Representatives may not bring into the DNX
anything prohibited under the Rules and Regulations.
g. Inspection. INFLOW and its designees may inspect or observe
the Customer Equipment and any tools, equipment, materials or other items
brought into the DNX at any time by a Representative (collectively, including
the Customer Equipment, "Customer's Property") at any time, provided, however,
that the foregoing right is subject to Section 5 of this Agreement. If any of
Customer's Property is in a security enclosure, Customer will furnish INFLOW
with the appropriate keys or information needed to enter the enclosure.
h. Security Procedures. INFLOW will (i) establish security
procedures which it determines are appropriate and cost effective to monitor and
control access to the DNX, and (ii) make reasonable efforts to enforce such
procedures.
i. Acceptable Use. Without limiting Section 3(a) above,
Customer shall not use the Customer Equipment or the Services in connection with
any (A) infringement or misappropriation of any intellectual property rights;
(B) defamation, libel, slander, obscenity, pornography, or violation of the
rights of privacy or publicity; or (C) spamming, or (D) any other offensive,
harassing or illegal conduct. If the Services include internet access, Customer
and all of Customer's end users shall use such internet service in accordance
with INFLOW's
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Acceptable Use Policy, as the same may be modified by INFLOW from time to time,
a copy of which can be obtained from INFLOW or viewed at ▇▇▇.▇▇▇▇▇▇.▇▇▇/▇▇▇▇▇ or
such other location as INFLOW may from time to time designate.
j. Removal of Customer's Equipment. Immediately upon
expiration of the term or earlier termination for any reason of all or any
portion if this Agreement, Customer will remove all of Customer's Property from
the DNX and shall return to INFLOW any equipment belonging to INFLOW associated
with the Services terminated.
k. Indemnity. Customer will indemnify, defend and hold INFLOW,
its affiliates and customers harmless from and against any and all costs,
liabilities, losses, damages and expenses (including, but not limited, to
reasonable attorneys' fees) (collectively, "Losses") suffered by, or resulting
from or arising out of any claim, demand, suit, action, or proceeding (each, an
"Action") brought by or against INFLOW, its affiliates or customers alleging any
breach of Customer's obligations under this Section 3.
4. INSURANCE.
a. Minimum Levels of Customer's Insurance. During the term of
this Agreement, Customer will keep in full force and effect: (i) commercial
general liability insurance in an amount not less than one million dollars
($1,000,000) per occurrence for bodily injury and property damage; (ii) workers'
compensation insurance in an amount not less than that required by applicable
law; and (iii) property insurance covering electronic computer equipment for the
perils customarily insured, but in no event more restrictive than "special
perils" property insurance, covering the Customer Equipment in the amount of its
full replacement cost at the time of the loss. Customer also agrees that it will
maintain, and will be solely responsible for ensuring that its agents (including
contractors and subcontractors) maintain, other insurance at levels no less than
those required by applicable law and customary in Customer's and its agents'
industries. Each policy must contain a provision that the insurance policy, and
the coverage that it provides, will be primary and noncontributing with respect
to any policies carried by INFLOW. Within ten (10) days after request by INFLOW,
Customer will provide to INFLOW evidence of the foregoing insurance. Customer
acknowledges that INFLOW has no obligation whatsoever to insure any of
Customer's Property.
b. Minimum Levels of INFLOW's Insurance. During the term of
this Agreement, INFLOW will keep in full fore and effect: (i) commercial general
liability insurance in an amount not less then one million dollars ($1,000,000)
per occurrence for bodily injury and property damage; (ii) workers' compensation
insurance in an amount not less than that required by applicable law; and (iii)
"special perils" property insurance covering INFLOW's personal property and
premises in the building in the amount of its full replacement cost at the time
of the loss.
c. Acceptable Insurance Companies. All of the insurance
required in this Agreement will be issued by financially secure insurance
companies authorized to issue insurance in the state where the DNX is located.
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d. Waiver of Subrogation. Neither party, nor its officers,
directors, shareholders, employees, agents or invitees, will be liable to the
other party or to any insurance company insuring the other party (by way of
subrogation or otherwise) for any loss or damage in its equipment or property
within the DNX or for loss of business revenue or extra expense arising out of
or related to its equipment or property within the DNX, to the extent the loss
or damage or expense (i) is covered by the injured party's insurance; or (ii)
would be covered by the insurance the injured party is required to carry under
this Agreement.
5. CONFIDENTIAL INFORMATION.
a. Confidential Information. Each party acknowledges that it
may have access to certain confidential information of the other party
concerning the other party's business, plans, customers, technology, products
and services ("Confidential Information"). Confidential Information will
include, but not be limited to, each party's proprietary software, technology
and trade secrets and customer information, to the extent such customer
information is identified as confidential or proprietary, and the terms and
conditions of this Agreement. Each party agrees that it will not use in any way,
for its own account or the account of any third party, nor disclose to any third
party (except as required by law or to the disclosing party's attorneys,
accountants and other advisors as reasonably necessary and subject to the
confidentiality provision hereof), any of the other party's Confidential
Information and will take reasonable precautions to protect the confidentiality
of Confidential information.
b. Exception. Information will not be deemed Confidential
Information hereunder if such information: (i) is rightfully known to the
receiving party prior to the receipt from the disclosing party directly or
indirectly from a source other than one having an obligation of confidentiality
to the disclosing party; (ii) becomes known (independently of disclosure by the
disclosing party) to the receiving party directly or indirectly from a source
other than one having an obligation of confidentiality to the disclosing party;
(iii) becomes publicly known or otherwise ceases to be secret or confidential,
except through a breach of this Agreement by the receiving party; or (iv) is
independently developed be the receiving party.
6. REPRESENTATIONS AND WARRANTIES.
a. Warranties by Customer. Customer represents and warrants to
INFLOW that: (1) Customer owns or has the legal right and authority, and will
continue to own or maintain the legal right and authority during the term of
this Agreement, to place and use the Customer Equipment as contemplated by this
Agreement; (2) Customer is duly organized and validly existing and has the legal
power and authority to enter into this Agreement and to perform its obligations
hereunder; (3) the person signing this Agreement on behalf of Customer is duly
authorized to do so, and upon its execution by such person, this Agreement is
the valid and legally binding obligation of Customer; (4) Customer's services,
products, materials, data, information and Customer Equipment used by Customer
in connection with this Agreement as well as Customer's and its permitted
customers' and users' use of the Services (collectively,
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"Customer's Business") does not as of the Installation Date, and will not during
the term of this Agreement operate in any manner that would violate any
applicable law or regulation; and (5) Customer has read the Rules and
Regulations and Customer and Customer's Business are currently in full
compliance with the Rules and Regulations, and will remain so at all times
during the term of this Agreement.
b. INFLOW's Service Level Agreements.
i. Service Level Agreements. INFLOW's Service Levels
Agreements attached to this Agreement (the "SLAs") constitute INFLOW's sole and
exclusive warranty for providing Services to Customer. INFLOW's maintenance of
the DNX and Services, as described in paragraph 17 of the Rules and Regulations
will not be deemed to be a failure of INFLOW to provide Services in accordance
with this Agreement, or the breach of any SLA. The warranties contained in each
SLA apply only to the Services expressly included therein. The SLAs set forth
Customer's sole and exclusive remedies for any failure by INFLOW to provide
Services in accordance with this Agreement.
ii. No Other Warranty. EXCEPT FOR ANY EXPRESS
WARRANTY SET FORTH IN THE SLAS, THE SERVICES ARE PROVIDED ON AN "AS IS" BASIS,
AND CUSTOMER'S USE OF THE DNX AND THE SERVICES IS AT ITS OWN RISK. INFLOW DOS
NOT MAKE, AND HEREBY DISCLAIMS, ANY AND ALL OTHER EXPRESS AND/OR IMPLIED
WARRANTIES, INCLUDING, BUT NOT LIMITED TO, WARRANTIES OF MERCHANTABILITY AND
TITLE, AND ANY WARRANTIES ARISING FROM A COURSE OF DEALING, USAGE, OR TRADE
PRACTICE. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, INFLOW DOES NOT
WARRANT THAT THE SERVICES WILL BE UNINTERRUPTED, ERROR-FREE, OR SECURE.
iii. Actions of Third Party. Without limiting the
foregoing disclaimer, Customer specifically acknowledges that INFLOW's network
services outside the DNX are provided or controlled by third parties. At times,
actions or inactions caused by these third parties can produce circumstances in
which Customer's connections to telecommunication networks (or portions thereof)
may be impaired or disrupted. Although INFLOW will use commercially reasonable
efforts to take any actions it deems appropriate to remedy and avoid such
circumstances, INFLOW cannot control them and cannot guarantee that they will
not occur. Accordingly, INFLOW will have no liability whatsoever resulting from
or related to such circumstances.
7. LIMITATIONS OF LIABILITY.
a. Damage to Customer Equipment or Business. INFLOW will have
no liability for any damage to, or loss relating to, Customer or the Customer's
Business resulting from any cause whatsoever, except for damage to the Customer
Equipment resulting from INFLOW's gross negligence or willful misconduct.
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b. Exclusions. Except as specified in Section 7(a) above and
the SLAs, in no event will INFLOW be liable to Customer, any Representative, or
any third party for any Losses or claims arising out of or related to this
Agreement, Customer Equipment, Customer's Business or otherwise, including any
lost revenue, lost profits, replacement goods, loss of technology, rights or
services, incidental, punitive, exemplary, indirect or consequential damages,
loss of data, or interruption or loss of use of service or of any Customer
Equipment or Customer's Business, even if advised of the possibility of such
damages, whether under theory of contract, tort (including negligence), strict
liability or otherwise.
c. Basis of the Bargain; Failure of Essential Purpose.
Customer acknowledges that INFLOW has set its prices and entered into this
Agreement in reliance upon the limitations of liability and damages and the
disclaimers of warranties set forth in this Agreement, and that the same form an
essential basis of the bargain between the parties. The parties agree that such
limitations and disclaimers will survive and apply even if this Agreement or any
provisions hereof are found to have failed of their essential purpose.
8. TERM. The term of this Agreement will commence on the Effective Date
and continue for the Initial Term. At the expiration of the Initial Term, this
Agreement will automatically renew for successive terms of one (1) year subject
to Customer's acceptance of INFLOW's then current fees, unless notice of
non-renewal is given by either party no less than ninety (90) days before
expiration of the term. Customer will be deemed to have accepted INFLOW's then
current fees for any successive term unless Customer gives notice to INFLOW of
its rejection of any increase in fees no later than ten (10) days after Customer
receives notice thereof. If Customer rejects any increase in fees, this
Agreement shall terminate on the date which is forty-five (45) days after
Customer gives notice to INFLOW of its rejection of such increase.
9. DEFAULT AND REMEDIES.
a. Default by INFLOW. The occurrence of any of the following
will be a "Default" by INFLOW: (i) INFLOW fails to perform or observe any of its
obligations under this Agreement after a period of thirty (30) days after
receiving notice from Customer of such failure, or (ii) INFLOW's insolvency or
liquidation as a result of which INFLOW ceases to do business.
b. Default by Customer. The occurrence of any of the following
will be a "Default" by Customer: (i) Customer fails to pay, when due, any fees
or charges owing to INFLOW under this Agreement, provided that the first such
nonpayment in any calendar year shall not be a Default unless Customer fails to
pay such amount within five (5) business days after notice from INFLOW of such
nonpayment; or (ii) the breach of any representation or warranty made by
Customer in this Agreement; or (iii) Customer fails to perform or observe any of
its other obligations under this Agreement after a period of thirty (30) days
after receiving
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notice from INFLOW of such failure; or (iv) Customer's insolvency or
liquidation; or (v) Customer commits a Default with respect to INFLOW's
provision of services to Customer at any other DNX, whether pursuant to this
Agreement or any other agreement.
c. Customer's Remedies for Default by INFLOW. Remedies for
failure to deliver the Services in accordance with the SLAs are addressed
entirely in the SLAs. If INFLOW commits a Default, Customer will be entitled, at
its election to terminate this Agreement or seek any available remedies at law
or in equity. Customer's right of recovery for any such Default will be limited
as elsewhere provided in this Agreement, including, without limitation, Section
7 and the SLAs. Notwithstanding anything to the contrary in this Agreement,
INFLOW's maximum aggregate liability to Customer related to or in connection
with this Agreement will be limited to the total amount paid by Customer to
INFLOW hereunder for the prior twelve (12) month period.
d. INFLOW's Remedies for Default by Customer. If Customer
commits a Default, INFLOW will be entitled, at its election, to exercise any one
or more of the following remedies, then or at any time thereafter: (i) to
exercise any remedy for such Default set forth elsewhere in this Agreement; (ii)
to pursue any remedy available at law or in equity; (iii) to terminate this
Agreement; (iv) to suspend Services; and (v) to remove any or all of the
Customer's Property and store the same within the DNX or elsewhere is a
commercially reasonable manner and at Customer's cost and expense if Customer
fails to remove Customer's Property within three (3) days after notice to
Customer, and (vi) to treat as abandoned and retain and use, free of any rights
or claims thereto from Customer or anyone claiming by, through or under
Customer, or dispose of in any manner whatsoever (including destruction thereof)
any of all of the Customer's Property if Customer fails to take possession of
and remove the same from the DNX or place of storage, as the case may be, within
ten (10) days after notice to Customer.
10. OTHER PROVISIONS.
a. Non-Assignment; No Third-Party Rights. Customer will not be
permitted to assign this Agreement in whole or in part without INFLOW's prior
written consent, which will not be unreasonably withheld. Any assignment in
violation of the foregoing restriction will be null and void. Except as
restricted above, this Agreement will be binding upon, and inure to the benefit
of, the parties hereto and their respective successors and assigns. This
Agreement is for the sole and exclusive benefit of the parties hereto, and
nothing in this Agreement will be construed as giving any rights to any person
not a party hereto.
b. Use of Name and Logo. Customer hereby grants to INFLOW the
express right to use Customer's company name and/or logo in marketing, sales,
financial, and public relations materials and other communications solely to
identify Customer as an INFLOW Customer. INFLOW hereby grants to Customer the
express right to use INFLOW's company
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name and logo solely to identify INFLOW as a provider of services to Customer.
Other than as expressly stated herein, neither party shall use the other party's
names, marks, codes, drawings or specifications without the prior written
permission of the other party.
c. Independent Contractors. The parties will have the status
of independent contractors, and nothing in this Agreement will be deemed to
place the parties in any other relationship, including employer-employee,
principal-agent, partners or joint ventures.
d. Non-Waiver. Failure of either party to enforce any of its
rights hereunder will not be deemed to constitute a waiver of its future
enforcement of such rights or any other rights.
e. Severability. If any provisions of this Agreement are held
to be invalid, illegal, or unenforceable under present or future laws, such
provisions will be struck from the Agreement or amended, but only to the extent
of their invalidity, illegality or unenforceability. Such invalidity, illegality
or unenforceability will not affect the remaining provisions of this Agreement.
The parties will remain legally bound by the remaining terms of this Agreement,
and will strive to reform the Agreement in a manner as consistent as reasonably
possible with the original intent of the parties as expressed herein.
f. Force Majeure. Either party will be excused from any delay
or failure in performance hereunder, other than the payment of money, caused by
reason of any occurrence of contingency beyond its reasonable control, including
but not limited to, acts of God, earthquakes, labor disputes and strikes, riots,
war, and governmental requirements. The obligations and rights of the party so
excused will be extended on a day-to-day basis for the period of time equal to
that of the underlying cause of the delay.
g. Governing Law; Jurisdiction. This Agreement will be
governed by and construed to accordance with the substantive laws of the State
of Colorado, without regard to conflict of law principles. INFLOW and Customer
hereby consent and submit to the personal jurisdiction of the State and Federal
courts in Colorado.
h. Integration. This Agreement expresses the complete and
final understanding of the parties with respect to the subject matter hereof,
and supersedes all prior communications between the parties, whether written or
oral with respect to the subject matter hereto. No modification of this
Agreement will be binding upon the parties hereto unless in writing and executed
by Customer and INFLOW.
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i. Exhibits Incorporated. All Exhibits and any Addenda to this
Agreement are incorporated herein and made a part hereof as if fully set forth
herein.
j. Notices. Except where other means of communication are
expressly provided for in this Agreement, all notices or other instruments or
communications provided for under this Agreement will be in writing, signed by
the party giving the same, and will be deemed properly given and received (i) on
the next business day after deposit for overnight delivery by an overnight
courier service such as Federal Express or (ii) three (3) business days after
mailing, by registered or certified mail, return receipt requested. All such
notices or other instruments or communications will be furnished with delivery
or postage charges prepaid addressed to the Customer at the Customer Notice
Address or to INFLOW at the DNX, Attention, General Manager, with a copy to
InFlow, Inc., Legal Department, ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇.
Either party may change its address for notices hereunder by notice to the other
party.
AGREED AND ACCEPTED AS OF THE DATE SET FORTH ABOVE:
INFLOW: CUSTOMER:
Inflow, Inc., a Delaware corporation d/b/a High Speed Net Solutions, Inc., a Florida corporation
InFlowNet, Inc. In Colorado
By: By:
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Name: Name:
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Title: Title:
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Date: Date:
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