Exhibit 10.35


TERMS AND CONDITIONS COVERING ALL

CONTRACTS BETWEEN CUSTOMER AND METCOM INC.


1. Payment - a) Nonrecurring
charges, including construction, are due in advance. Recurring charges shall be
due in advance on the first day of each month; billing shall commence upon
completed installation according to Industry StandardsAny undisputed amount not
received within 30 days of the invoice date shown on the applicable bill will
be subject to Metcom’s standard late charge of 1 1⁄2 % per month. b) Customer agrees
to pay any sales, use, gross receipts, excise, access, bypass or other Local,
State and Federal taxes or charges, imposed on or based upon the provision,
sale or use of the Services provided. Taxes will be separately stated on
Customer’s invoice. 


2. Use - Customer may
use the Services available for any lawful purpose for which they are intended. 


3. Service Term - a) Metcom shall use reasonable efforts to make
Services available by the estimated service date, as set out on the Service
Order Metcom shall not be liable for any damages whatsoever resulting from
delays in meeting any service dates due to delays resulting from normal
construction procedures. Such delays include, but not limited to, delays in
obtaining necessary regulatory approvals for construction, delays in obtaining
rights of way approvals, and delays in actual construction work. If customer is
not ready to accept Metcom Services 30 days after the estimated service date,
Metcom will commence billing. b) After the term of this contract, if the
Customer has not given Metcom 90 days written notice of its intent to
disconnect and termination of this contract, the contract will be automatically
renewed on a month-to-month basis, or other agreed renewal term and the
Customer may then disconnect upon 30 days written notice. 


4. Customer Responsibilities- a) Access - Customer is responsible for arranging access
to any rights of way, conduit and equipment space necessary to provide Services
on the premises so that Metcom-authorized personnel, employees, or agents may
install, repair, maintain, inspect, replace or remove any and all facilities
and associated equipment provided by Metcom. Access to such sites shall be made
available at a time mutually agreeable to Customer and Metcom. Metcom shall
also have the right to obtain access to its cable installed in
customer-provided conduit at any splice or junction box.


     b) Provision of Equipment Space, Conduit. and Electrical Power- Customer
shall provide the necessary equipment space, conduit, and electrical power
required to terminate and maintain facilities used to provide Services on all
applicable premises without charge or cost to Metcom. The space, conduit, and
power must be available to Metcom on a timely basis. Customer shall be
responsible for assuring that the equipment, space and work are protected
against fire, theft, vandalism or other casualty, and that the use thereof
complies with all applicable laws, rules and regulations and with all
applicable leases or other contractual agreements. 


     c)
Governmental Authorizations- Customer shall be responsible to obtain and
continue in effect all government authorizations necessary to permit Customer
to receive Services and comply with its obligations under this Contract. 


5. Equipment - a) Title
- Customer agrees that all right, title and interest in all the equipment
provided by Metcom hereunder shall remain exclusively with Metcom. Customer
shall not create or permit to be created any liens or encumbrances relating to
Customer’s use of the Services or arising from the location of the equipment.
Upon termination of Services, Metcom shall remove its equipment and shall have
the right, but not the obligation, to remove all other facilities from any
applicable premises.


b) Maintenance -
Metcom shall use reasonable efforts to maintain the services in accordance with
applicable performance standards therefor. There are no additional charges for
Metcom maintenance Services. However, Metcom shall have no responsibility for
maintenance and repair of facilities and equipment which it does not furnish
and Metcom may assess Customer its standard charge for any false call outs. 


6. Default- If
Customer (a) shall fail to pay any amount required under this contract and such
failure continues for ten days after written notice to Customer that the same
is due and payable, or (b) fails to comply with other material provision of
this Contract and such noncompliance continues for thirty days after written
notice to Customer thereof, then Metcom at its sole option, may elect to pursue
one or more of the following courses of action: either (i) terminate this
contract whereupon in addition to all sums then due and payable all future
monthly or other charges thereunder or hereunder shall become immediately
payable (discounted to the present value at 6%), (ii) take appropriate action
to enforce payment, including suspension of all or any part of the Service,
and/or (iii) pursue any other remedies as may be provided at law or in equity. 


7. Limitations of Liability  


     a) Liability for Service
Interruptions- To the extent that any part or portion of the Services is
unavailable, interrupted, degraded or otherwise unsatisfactory for any reason,
Metcom and Customer agree that Customer’s sole and exclusive remedy shall be
the credit allowances for interruptions as provided in Section 9. 


     b)
Liability for Damages to Property - Metcom shall not be liable for any
damages whatsoever to property at any Customer premises resulting from the
installation, maintenance, repair or removal of equipment and associated
wiring, unless the damage is caused by Metcom willful misconduct or negligence.



     c)
Liability for Services and Equipment Not Provided by Metcom - Metcom
shall not be liable for any damages whatsoever associated with services
channels, or equipment which it does not famish or for any act or omission of
any entity furnishing to Customer facilities or equipment used for or with the
Services. 


     d)
Liability for Force Majeure Events - Metcom shall not be liable for any
failure of performance or Services for reasons beyond its reasonable control
including casualty, condemnation, or loss of rights of way.


     e)
Liability for Negligence or Fault of Customer - Metcom shall not be
liable for any interruptions or damages due to the fault or negligence of
Customer or due to the failure or malfunction of Customer provided equipment or
facilities. 


     f)
Liability Regarding Governmental Authorization - Metcom shall use best efforts to obtain and keep in
effect all government authorizations necessary, in order to provide Services
under this Contract. Metcom and Customer shall be entitled to take and shall
have no liability for any action necessary including termination, to bring the
Services into conformance with any governmental regulations or authorizations, and Metcom
and Customer shall fully cooperate in and take such action as may be requested
by Metcom or Customer as part
of such compliance. 


     g) No Special Damages - In no event shall Metcom be liable for special
consequential, exemplary, or punitive damages as a result of its performance or
nonperformance of this Contract. 


8. Termination - Metcom may terminate this contract without liability and Customer’s payment will be apportioned if a)
the facilities used to provide service are taken by exercise of condemnation or
eminent domain; or b) the facilities in Metcom’s judgement, be made inoperable
and beyond economically or technologically feasible repair. Should customer
terminate contract prior to completion of agreed term, Customer is liable to pay Metcom the
monthly price differential between the actual Initial term completed and the contractual term pricing or
the balance
of the contract whichever is less. 


9. Credit Allowances - A credit allowance will be given when Service is Interrupted, except as
specified below. An Interruption period begins when Customer reports an
interruption in Service to Metcom.


     a)
Credit allowance does not apply to interruptions: (i) caused by
Customer, (ii) due to failure of power or equipment provided by Customer or
others; (iii) during any period in which Metcom is not given access to the
service premises; (iv) due to scheduled maintenance and repair. 


     b)
Interruptions of 24 hours or less 


	
  

 	
  

 	
  

 
	
 Interruption
 Length

 	
  

 	
 Credit

 
	

 


 	
  

 	

 


 
	
 Less than 30 Min.

 	
  

 	
 None

 
	
 30 Min - 2 Hr 59 Min

 	
  

 	
 1/10 day

 
	
 3 Hr - 5 Hr 59 Min

 	
  

 	
 1/5 day

 
	
 6Hr-8Hr59Min

 	
  

 	
 2/5 day

 
	
 9 Hr-11 Hr 59 Min

 	
  

 	
 3/5 day

 
	
 12 Hr -14 Hr 59 Min

 	
  

 	
 4/5 day

 
	
 15 Hr- 24 Hr

 	
  

 	
 One day

 



     c)
Interruptions over 24 Hours- Interruptions over 24 hours will be
credited 1/5 day for each 3-hour period or fraction thereof. No more than one
full days credit will be allowed for any period of 24 hours. 


10. Indemnification -
Metcom shall be indemnified, defended and held harmless by Customer against all
claims, suits, proceedings, expenses, losses, liabilities, or damages
(collectively “Claims”) arising from the use of Services pursuant to this Contract involving: a) Claims of
thirdparties, including patrons or customers of Customer, arising out of
resulting from, or related to the Customer’s resale or attempted resale of the
Services; b) Claims for libel, slander, invasion of privacy, or infringement of
copyright arising from communication using the Service; c) All other claims
arising out of any act or omission of Customer, or customers or patrons of
Customer, in connection with the Services made available to Customer or term of
this Contract. Customer agrees to defend Metcom
against any such claim and to pay,
without limitation, all litigation costs, reasonable attorney’s fees and court
costs, settlement payments, and any damages awarded or resulting from such
claim. 


Notwithstanding the
foregoing, each Party shall protect, defend, indemnify and hold harmless the
other Party.nd its directors, officers, and employees from any and all claims,
losses, demands, suits or other action or any liabilities whatsoever,
including, but not limited to, costs and attorney fees, whether suffered, made
or asserted by any entity for property damage, personal injury to or death of
any person, or for losses, damages or destruction of property, whether or not
owned by others, resulting from any failure on its part to perform or comply
with any other terms or conditions of this Agreement, or any violation of
applicable law, regulation, or authority. Indemnities and assumptions of
liabilities and obligations, in law or equity, herein provided for shall
continue in full force and effect for the applicable statute of limitations. 


	
  

 
	
      11. Assignment - Metcom may, without obtaining any further
 consent from Customer, assign any of its rights, privileges, or obligations
 under this Contract. Customer shall not, withoutpnor written consent of
 Metcom, which consent shall not be unreasonably withheld or delayed, assign, transfer,
 or in any manner dispose of any of its rights privileges, or obligations
 under this Contract. 

 
	
  

 
	
      12. Warranties - THERE ARE
 NO AGREEMENTS, WARRANTIES, OR REPUSER—TATIONS, EXPRESS OR IMPLIED EITHER IN
 FACT OR BY OPERATION OF LAW, STATUTORY OR OTHERWISE, INCLUDING WARRANTIES OF
 MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE OR USE, EXCEPT THOSE
 EXPRESSLY SET FORTH HEREIN. 

 
	
  

 
	
      13. Miscellaneous - This Contract may be
 modified, waived or amended
 only by a written instrument signed by the party against which enforcement
 thereof is sought, shall be binding upon the parties’ respective successors
 and assigns, and constitutes the entire agreement between Metcom and
 Customer. 

 



The rights and obligations of
the parties under this Contract shall be governed by and construed and enforced
in accordance with the laws of the State of New York.


	
  

 
	
 Agreed to
 by Authorized Signature:

 
	
 By: /s/
 Christopher V. Reeping

 
	
 Christopher
 V. Reeping

 
	
 V.P.-Prepaid
 Operations

 
	
 9/5/2002