Modem Pops Licensing & Services Contract Agreement

This Licensing & Service Agreement (this “Agreement”) is entered into on the ____ day of ____, 2005 (the “Effective Date”) by and between ___________________ (“Customer”), with headquarters located at _________________________________________________, and Modem Pops, Inc., with corporate office located at 6776 Southwest Freeway, Suite 600, Houston, Texas 77074 (“Modem Pops”).

WHEREAS, Modem Pops offers a Private Label Virtual Internet Service Provider Program and proprietary Software (collectively referred to as “VISP Services”) as specifically listed in Modempops Service Order form so that Customer will be able to market VISP Services under Customer's name to Customer subscribers, members and/or end users. (Collectively referred to as “Subscribers”)

WHEREAS, Customer wishes to utilize certain VISP Services, and license certain proprietary software as set forth in more detail herein, from Modem Pops;
NOW THEREFORE, in consideration of the mutual covenants and promises of Modem Pops and Customer herein, the parties agree as follows:

1. TERM OF AGREEMENT
The Agreement is set forth for initial 1-month and will automatically renew for successive terms of one-month each unless notified otherwise in writing by either Party at least ten (10) days prior to the end of the current Term. Customer's payment obligations shall survive termination or expiration of this Agreement.

2. DESCRIPTION OF SERVICES.
Modem Pops will provide Customer with certain VISP Services and proprietary software as requested by Customr in the Service Order.

3. FEES; PRICING; BILLING; PAYMENT
The current Prices, Fees and Rates for the VISP Services provided under the terms of this Agreement are set forth in Customer's Service Order that accompanies and is a part of, this Agreement. Unless the parties agree otherwise in writing as to pricing and payment terms, for any VISP Services, now existing or as hereafter amended, the Modem Pops' list prices and rates and standard payment terms and conditions shall apply and govern.

Any initial deposits by the Customer are non-refundable unless stated otherwise in the Service Order.

Pricing
Customer shall have sole and exclusive discretion over the pricing of the VISP Service. For each Subscriber, Customer shall be entitled to such portion of subscription fees received by Modem Pops, or on Modem Pops' behalf, in excess of the Modem Pops Fee.

In the event that Customer sells VISP Services for less than the Modem Pops' Fee as set forth in Service Order, then Customer shall pay Modem Pops the difference between the Modem Pops Fee and the price the VISP Service is sold to Subscribers within ten (10) days following the end of each calendar month.

Payments
Modem Pops services are offered on a prepay basis. Prior to each month, the Customer will estimate the number of unique users that it anticipates will log on in the following month. At a minimum, this estimate will be equal to the actual usage of the previous month or the minimum payable specified in the Service Order, whichever is higher. At the conclusion of each month, Modem Pops will reconcile actual usage against the anticipated usage. In cases where the usage was higher, the Customer will be billed for those users. Where usage is lower, Customer's account for the next month will be credited. Payment shall be via a mutually agreeable payment method. A month is defined as the 1st day to the last day of each calendar month.

Late Payments and Finance Charges

Payments are due net 15 days from the date of invoice. Finance charges at the maximum legal rate may be assessed on late payments.

Subscriber Billing and Collections
All subscriber billings and collections will be the responsibility of the Customer unless agreed otherwise.

4. MODEM POPS OBLIGATIONS

VISP Services
Throughout the Term of this agreement, Modem Pops will create, develop, host, maintain and provide to Customer's subscribers the VISP Services as set forth in Customer's Service Order; provided that Modem Pops' obligation shall be subject to such Customer Subscribers' entering into, and remaining in compliance with Modem Pops' Terms of Use Agreement, incorporated herein by reference as Exhibit “I”.

Modem Pops will use reasonable efforts, in accordance with its general practices with regard to VISP Services, to make such features and services available in accordance with such schedule, and will keep Customer reasonably apprised of any anticipated additional features and services.

Subcontractors
It is expressly agreed that Modem Pops may subcontract any of its obligations to third parties; provided that Modem Pops shall remain primarily responsible therefore.

5. CUSTOMER OBLIGATIONS

Compliance with Agreement, Exhibits and Use Policy
Customer Subscribers are required to comply with all conditions of the Terms of Use as they may be updated and amended from time to time. Modem Pops reserves the right to suspend or terminate any VISP Services to Customer and its Subscribers for any violation of this policy. Customer shall require each Subscriber to agree to the terms and conditions of the Terms of Use before providing such Subscriber with VISP Services.

Exclusions
Modem Pops will not be responsible for Customer's Subscribers if they have misused any VISP Service and if they have caused a malfunction in any VISP Service due to an error on their part. Modem Pops may choose to help such Subscribers for a programming fee to be determined case by case and payment for such support Services shall be the sole responsibility of the particular Customer Subscriber.

Duties
Customer shall document and promptly report all errors or malfunctions of VISP service. Modem Pops shall provide all functions and services as set forth in Schedule A and selected by the Customer, or as otherwise agreed to by the parties. All functions and services outside the scope of Schedule A are the responsibility of the Customer.

Distribution
Customer will be responsible for distributing the Software to those of its Subscribers who shall have access to the VISP Services for use in accordance with the terms of this Agreement, Schedules or Exhibits attached hereto. Modem Pops shall make available via download from the Internet and/or via Master CD, the Software for Customer.

Upon the mutual agreement of Customer and Modem Pops, Customer may reproduce and distribute without change, the Software to its Subscribers, provided that all costs of producing and distributing the Software shall be borne by Customer. Customer may not bundle the Software with any software or content competitive with the Software, unless expressly agreed in writing by Modem Pops. Customer may copy the Software for the sole purpose of distributing it to its Subscribers in accordance with this Agreement, Schedules or Exhibits attached hereto.

Promotion of VISP Service
Throughout the Term, Customer shall actively promote, market, advertise and offer the VISP Services.

6. SOFTWARE LICENSES; LIMITATIONS

Software License
During the term of this Agreement and any extension thereof, Modem Pops will grant Customer a limited, royalty-free, non-transferable, nonexclusive, license to use the Software in executable form only for purposes of Modem Pops' exercising its rights under this Agreement.

Customer agrees that neither it nor its subscribers intend to or will directly or indirectly, export or transmit (i) the Software or related documentation and technical data or (ii) any software product as described in this Agreement (or any part thereof), or process, or service that is the direct product of the Software, to any country to which such export or transmission is restricted by any applicable U.S. regulation or statute, without the prior written consent, if required, of the Bureau of Export Administration of the U.S. Department of Commerce, or such other governmental entity as may have jurisdiction over such export or transmission.

Limitations
This Agreement transfers to the Customer neither title nor any proprietary or intellectual property rights to the Software, documentation, or any copyrights, patents, trademarks or any other intellectual property embodied or used in connection therewith, except for the rights expressly granted in this Agreement. Except as expressly permitted in writing by Modem Pops, Customer agrees that it will not for itself, or through any parent, subsidiary, affiliate, Agent, Members or other third party: (i) reverse engineer, decompile, disassemble, reconfigure, modify, translate or otherwise attempt to derive source code from the Software, (ii) sell or lease the Software or (iii) write or develop any derivative software or any other software program based upon the Software.

Trademarks
Each party hereby grants the other party a license to use its trademarks, trade names, service marks designs and logos (“Marks”) as provided to the other party from time to time, solely for purposes of creating, marketing and providing the VISP Services in accordance with this Agreement; provided that all uses of the other party's Marks shall require the prior written consent of the other party. In addition, Modem Pops shall be permitted to include Customer's Marks in its client lists used in promotional materials and presentations. Neither party shall, by reason of such license or otherwise, obtain any ownership interest in the Marks of the other party, and all use by the other party shall inure solely and exclusively to the benefit of the owner of the Marks.

7. CONFIDENTIAL INFORMATION

Confidentiality
Each party agrees that information disclosed by one party under this Agreement (the “Disclosing Party”) to the other party (the “Receiving Party”), including pricing, marketing plans, plans, methodology, technology, and/or software, which information is considered proprietary by the Disclosing Party, shall be considered Confidential Information under this Agreement.

A Receiving Party shall not disclose the Disclosing Party's Confidential Information to any third party without the Disclosing Party's prior written consent, except under order of court or government agency, and then only if the Receiving Party gives timely notice of such order to the Disclosing Party to afford such Disclosing Party the opportunity to attempt to obtain a protective order. Each party agrees to exercise the same level of care in protecting the Confidential Information of the other party from unauthorized use and disclosure as it uses in connection with its own Confidential Information, but in no event less than reasonable care.

Confidential Information will not include information that is (i) publicly available, (ii) in the Receiving Party's lawful possession prior to the Effective Date and not subject to disclosure restrictions on the part of the Receiving Party, (iii) obtained by the Receiving Party from third parties without disclosure restrictions known to the Receiving Party, or (iv) independently developed by the Receiving Party without reference to the Disclosing Party's Confidential Information (as shown by that Receiving Party's written records).

8. CONTRACT TERMINATION.

For Terms of Use Agreement Violations
Customer and its Subscribers shall comply with the Modem Pops' Terms of Use Agreement, attached hereto as Exhibit “I”, and act immediately to remedy any violation of the Terms of Use Agreement by a Customer Subscriber. If Customer member(s) violate such Policy, or Customer permits or tolerates such violation, Modem Pops reserves the right, in its sole discretion, to suspend or terminate any or all of such Customer Subscriber(s)

Transition
On receipt of notice for termination, the parties shall use reasonable efforts to continue, for ten (10) days, to provide, but not promote, market or advertise, the VISP Services, solely to Subscribers with active accounts at the time of termination, in order to effectuate an orderly transition of such Subscribers (the “Transition Period”). Customer will have the right to use the Software and the User Data during the Transition Period.

During the Transition Period the parties will provide Subscribers with reasonable notices, including but not limited to e-mail notices, bill inserts and Customer Messages, that the VISP Service will cease as of the effective date of such expiration or termination. Such notices will provide Subscribers with relevant information as to how Subscribers may convert their VISP Service accounts to Modem Pops accounts, without interruption of service, and further will notify Subscribers that such conversion will occur automatically on such date, in the absence of instructions to the contrary.

The parties will reasonably cooperate with one another to effectuate such transition.

Effect of Termination
Upon expiration or termination of this Agreement Customer shall discontinue all use and distribution of the Software and destroy the Software and all copies of the Software contained in any computer memory or data storage apparatus under the control of the Customer.

All applicable warranties, indemnities, confidentiality provisions as well as all accrued payment obligations shall survive termination of this Agreement.

9. LIMITATION ON WARRANTIES, REPRESENTATIONS & INDEMNITIES; DISCLAIMER

Warranty
Each party represents and warrants to the other that it has full power and authority to enter into and perform its obligations under this Agreement.

Neither Customer nor its agents shall offer warranties, representations or indemnities for the VISP Services which would obligate or otherwise bind Modem Pops beyond any warranty, representation or indemnity expressly set forth in the Schedules of this Agreement, or make any other warranties, promises, indemnities or representations with respect to the VISP Services, to any Subscriber or prospective Subscriber, or any other person or entity.

DISCLAIMER
CUSTOMER AGREES THAT THE VISP SERVICE IS PROVIDED ON AN "AS IS", “AS AVAILABLE” BASIS WITHOUT WARRANTIES OF ANY KIND, EITHER EXPRESSED OR IMPLIED, EXCEPT AS SET FORTH HEREIN, INCLUDING BUT NOT LIMITED TO (I) WARRANTIES OF TITLE OR NON-INFRINGEMENT, AND ANY WARRANTIES ARISING FROM A COURSE OF DEALING, USAGE, OR TRADE PRACTICE (II) IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, OTHER THAN THOSE WARRANTIES THAT ARE IMPLIED BY, AND INCAPABLE OF EXCLUSION, RESTRICTION OR MODIFICATION UNDER, APPLICABLE LAWS, OR (III) WARRANTIES AS TO AVAILABILITY OR PERFORMANCE OF THE VISP SERVICE. IN NO EVENT SHALL MODEM POPS HAVE ANY LIABILITY WHATSOEVER FOR CIRCUMSTANCES BEYOND ITS REASONABLE CONTROL, INCLUDING BUT NOT LIMITED TO FAILURES OF OR DEFICIENCIES OR ERRORS IN PORTIONS OF THE VISP SERVICE PROVIDED BY THIRD PARTIES (INCLUDING, FOR EXAMPLE, INTERNET CONNECTIVITY). MODEM POPS DOES NOT WARRANT THAT THE VISP SERVICES WILL BE UNINTERRUPTED, ERROR-FREE, OR COMPLETELY SECURE. MODEM POPS DOES NOT AND CANNOT CONTROL THE FLOW OF DATA TO OR FROM ITS SUPPLIER'S SERVERS AND OTHER PORTIONS OF THE INTERNET. SUCH FLOW DEPENDS IN LARGE PART ON THE PERFORMANCE OF SERVICES PROVIDED OR CONTROLLED BY THIRD PARTIES. AT TIMES, ACTIONS OR INACTIONS CAUSED BY THESE THIRD PARTIES CAN PRODUCE SITUATIONS IN WHICH VISP SERVICES MAY BE IMPAIRED OR DISRUPTED. ALTHOUGH MODEM POPS WILL USE COMMERCIALLY REASONABLE EFFORTS TO TAKE ACTIONS IT DEEMS APPROPRIATE TO REMEDY AND AVOID SUCH EVENTS, MODEM POPS CANNOT GUARANTEE THAT THEY WILL NOT OCCUR. ACCORDINGLY, MODEM POPS DISCLAIMS ANY AND ALL LIABILITY RESULTING FROM OR RELATED TO SUCH EVENTS.

Cure.
In the event of a breach of the foregoing warranty, Customer shall promptly notify Modem Pops of the breach in writing. Upon receipt of notice, Modem Pops will use commercially reasonable efforts to remedy the breach. If, in Modem Pops' sole judgment, the breach cannot be remedied through commercially reasonable efforts, Modem Pops may at its option compensate Customer for any loss caused by the breach, by credit against amounts owing under this Agreement or otherwise, or may terminate this Agreement and refund to Customer an equitable portion of any fees paid by Customer to Modem Pops for VISP Services not performed. THE FOREGOING SETS FORTH CUSTOMER'S SOLE REMEDY AND MODEM POPS' SOLE LIABILITY FOR BREACH OF WARRANTY.

LIMITATION OF LIABILITY
IN NO EVENT SHALL EITHER PARTY BE LIABLE (WHETHER IN CONTRACT, TORT OR OTHERWISE, INCLUDING NEGLIGENCE AND STRICT LIABILITY) FOR ANY SPECIAL, INDIRECT, SPECULATIVE OR CONSEQUENTIAL DAMAGES WHATSOEVER, INCLUDING BUT NOT LIMITED TO DAMAGES FOR LOSS OF BUSINESS INFORMATION, LOST PROFITS, LOST SAVINGS OR COSTS ATTRIBUTED TO DELAYS OR LOSS OF TIME, COST OF COVER AND THE LIKE, ARISING OUT OF PERFORMANCE, USE OF, OR INABILITY TO USE, ALL OR PART OF THE VISP SERVICE, EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE CLAIM OR OF THE POSSIBILITY OF SUCH DAMAGES, AND IN NO EVENT SHALL EITHER PARTY BE LIABLE TO THE OTHER FOR PUNITIVE DAMAGES. THE LIABILITY OF MODEM POPS AND ITS SUPPLIERS UNDER THIS AGREEMENT IS LIMITED TO MODEM POPS' OBLIGATIONS UNDER THE LIMITED WARRANTY SET FORTH ABOVE. IN NO EVENT SHALL THE LIABILITY OF MODEM POPS OR ITS SUPPLIERS EXCEED THE AMOUNTS PAID TO, OR REATINED BY, CUSTOMER IN RESPECT OF THE VISP SERVICE HEREUNDER DURING THE TWELVE (12) MONTHS PRIOR TO THE TIME THE CLAIM FOR DAMAGES AROSE AND TO WHICH THE SPECIFIC CLAIM RELATES

Indemnification
Each party shall indemnify, defend and hold harmless the other party and the officers, directors, Agents, Affiliates, distributors, franchisees and employees of such other party from and Against any and all claims, losses and liabilities arising from any third party claim alleging facts that, if true, would constitute a breach by the indemnifying party of its obligations, representations or warranties under the Agreement.

Indemnification Procedure
If a party entitled to indemnification hereunder (the "Indemnified Party") becomes aware of any matter as to which it believes it is entitled to indemnification hereunder, the Indemnified Party shall give the other party (the "Indemnifying Party") prompt written notice of such Action. Such notice shall (i) provide the basis on which indemnification is being asserted and (ii) be accompanied by copies of all relevant pleadings, demands, and other papers related to the Action and in the possession of the Indemnified Party. The Indemnifying Party shall have the right to assume the defense of the action, and in the event the Indemnifying Party assumes such defense, the Indemnified Party shall cooperate, at the expense of the Indemnifying Party, with the Indemnifying Party and its counsel in the defense, and the Indemnified Party shall have the right to participate fully, at its own expense, in the defense of such Action.

10. NOTICES & REQUESTS

All notices, authorizations and requests in connection with this Agreement shall be deemed given on the day they are (i) transmitted via electronic mail with a copy deposited in the mails, postage prepaid, certified or registered, return receipt requested, or (ii) sent by overnight courier, charges prepaid, with a confirming fax, and addressed as follows:

Notices to Customer: Notices to ModemPops:

________________________________ ModemPops, Inc.

________________________________ Southwest Freeway, Suite 600

________________________________ Houston , Texas 77074

Attention: _____________ Attention: Chief Operating Officer

or to such other address as the party to receive the notice or request so designates by written notice to the other.

Billing Disputes
Customer must notify Modem Pops in writing of any disputed charges within fifteen (15) days of the date of the payment. If Customer does not notify Modem Pops within that time period, Customer is deemed to have waived any right to dispute such amounts, either directly or as a set-off, recoupment or defense in any action or efforts to collect amounts due to Customer.

11. GENERAL.

Governing Law
This Agreement shall be governed by and interpreted in accordance with the internal laws of the State of Texas and the parties agree that all disputes arising out of or relating to this Agreement shall be brought exclusively in the state or federal courts located in State of Texas .

Alternative Dispute Resolution
The parties to this Agreement shall try to come to a settlement of any dispute, controversy or claim arising out of or relating to this Agreement, or the breach, termination or validity thereof. If the parties fail to settle any such matter, such matter shall be finally settled in accordance with the Commercial Rules of Arbitration of the American Arbitration Association in effect at the time, and judgment upon the award rendered may be entered in any court of competent jurisdiction. The award of the arbitrator(s) may include compensatory damages against either party but under no circumstances may the arbitrator(s) award punitive or multiple damages against either party. Arbitration proceedings shall be conducted in New York , NY . The parties agree not to institute any litigation or proceedings against either other in connection with this Agreement except as provided in this Article. In no event shall such an arbitration award include any award of punitive damage and the parties hereby waive the right to recover punitive damages.

ALL DISCUSSIONS AND DOCUMENTS PREPARED PURSUANT TO ANY ATTEMPT TO RESOLVE A DISPUTE UNDER THIS PROVISION ARE CONFIDENTIAL AND FOR SETTLEMENT PURPOSES ONLY AND SHALL NOT BE ADMITTED IN ANY COURT OR OTHER FORUM AS AN ADMISSION OR OTHERWISE AGAINST A PARTY FOR ANY PURPOSE INCLUDING THE APPLICABILITY OF FEDERAL AND STATE COURT RULES.

The parties agree to toll any applicable statutes of limitations during the course of any of the above dispute resolution proceedings. Nothing in this Paragraph will prevent any party from seeking injunctive relief in a judicial proceeding if interim relief from a court is necessary to preserve the status quo pending resolution or to prevent serious and irreparable injury to that party or others. The parties shall continue to perform all obligations under this Agreement pending the above-described dispute resolution proceedings, subject to full reservation of rights at law or under this Agreement.

Force Majeure
Neither party shall be considered in default under any provision of this Agreement by reason of any delay or failure in its performance of its obligations hereunder if such delay or failure is caused by events beyond its reasonable control, including but not limited to acts of God or the public enemy; riots or insurrections; war; accidents; fire; strikes; and other labor difficulties (whether or not the party is in a position to concede to such demands); embargoes; judicial action; lack of or inability to obtain export permits or approvals, necessary labor, materials, energy, components, or machinery; and acts of civil or military authorities. The time for any performance required hereunder shall be extended by the delay incurred as a result of the events described above.

Relationship between Parties
Neither this Agreement, nor any terms and conditions contained herein, shall be construed as creating a partnership, joint venture, Agency relationship or as granting a franchise.

Severability
In case any provision of this Agreement shall be invalid, illegal or unenforceable by a court of competent jurisdiction, such provision shall be construed so as to render it enforceable and effective to the maximum extent possible in order to effectuate the intention of this Agreement; and the validity, legality and enforceability of the remaining provisions hereof shall not in any way be affected or impaired thereby

Delays or omissions
No delay or omission to exercise any right, power or remedy accruing to a party under this Agreement shall impair any such right, power or remedy of such party nor shall it be construed to be a waiver of any such breach or default, or an acquiescence therein, or of any similar breach or default thereafter occurring; nor shall any waiver of any single breach or default be deemed a waiver of any other breach or default theretofore or thereafter occurring. Any waiver, permit, consent or approval of any kind or character on the part of either party of any breach or default under this Agreement, or any waiver on the part of either party of any provisions or conditions of this Agreement must be made in writing and shall be effective only to the extent specifically set forth in such writing. All remedies, either under this Agreement or by law or otherwise afforded to a party, shall be cumulative and not alternative.

Entire Agreement
This Agreement and the attached Schedules and Exhibits attached to the Schedules accepted by Customer and Modem Pops constitute the entire understanding and agreement between the parties and supersede any and all prior or contemporaneous oral or written communications with respect to the subject matter hereof, except where specifically stated otherwise. This Agreement shall not be modified, amended or in any way altered except by an instrument in writing signed by the parties. If any provision of this Agreement, or the application of such provision to any person or circumstance, shall be held invalid, the remainder of this Agreement, or the application of such provision to persons or circumstances other than those to which it is held invalid, shall not be affected thereby. This Agreement may be changed only by written Agreement signed by both parties.

Agreement
This Agreement shall be binding upon the parties hereto and their respective successors and assigns as permitted hereunder. No person or entity other than the parties hereto is or shall be entitled to bring any action to enforce any provision of this Agreement against either of the parties hereto, and the covenants and agreements set forth in this Agreement shall be solely for the benefit of, and shall be enforceable only by, the parties hereto or their respective successors and assigns as permitted hereunder.

This Agreement may be executed simultaneously in two or more counterparts, each counterpart shall be deemed to be an original, and all counterparts individually or together shall constitute one and the same instrument. Each party represents and warrants that the person whose signature appears below is duly authorized to enter into this agreement on behalf of the party. In witness whereof, the parties have entered into this agreement as of the date last set forth below (the “Effective Date”):