Exhibit 10.21


EXECUTION VERSION 


Strategic Partnership Master
Agreement


          This
Strategic Partnership Master Agreement (this “Agreement”) is made as of August
11, 2006 (the “Effective Date”) between Wave2Wave Communications, Inc.
(“Wave2Wave”), a Delaware Corporation with its principal offices at 433
Hackensack Avenue, Hackensack, NJ 07601 and incNETWORKS, Inc., a Delaware
Corporation with its principal offices at 198 Brighton Ave., Long Branch, NJ
07740 (“INI”) (hereinafter collectively the “Parties” and each, individually, a
“Party”).


RECITALS


WHEREAS, INI is a provider of Converged Broadband Wireless and Wireline
Networks, Products and Technologies, as well as Next Generation (4G) Network
Service Concepts and Network Design & Support Services which consist of
wireless and wireline voice, data, and video services (collectively, the “4G
Services”);


WHEREAS, Wave2Wave is a provider of Enterprise Managed Networks
Services and has expertise in providing enterprise customer support service as
well as marketing and customer care services;


WHEREAS, the Parties desire to combine Wave2Wave’s Managed Network
Service and Customer Support Services expertise and INI’s wireless and wireline
networking and new service concept design expertise into an offer to provide
the 4G Services to commercial customers within multi-tenant units in the United
States, in accordance with and subject to the terms and conditions of this
Agreement;


WHEREAS, the scope of this Agreement is to establish the general
technical and business rules of the strategic relationship between the Parties
with respect to the approximately 2,400 buildings serviced by Wave2Wave as of
the Effective Date as set forth in Exhibit A which is attached hereto and forms
an integral part of this Agreement and any additional buildings that come
within the scope of this Agreement pursuant to the terms and conditions hereof
(collectively, the “Territory”);


WHEREAS, Parties intend that a multi-tenant building named the Lincoln
Building located at 60 East 42nd Street, New York, NY (the “Lincoln Building”)
will serve as a showcase pilot project of the collaboration contemplated by
this Agreement and will serve as the platform for developing the business plan
and model for continuation of expanding the collaboration into all buildings in
the Territory; and


WHEREAS, in anticipation of the foregoing, the Parties have entered
into the Mutual Non Disclosure Agreement (the “Non Disclosure Agreement”)
between the Parties dated June

* WE HAVE REQUESTED CONFIDENTIAL TREATMENT OF CERTAIN PROVISIONS CONTAINED
  IN THIS EXHIBIT. THE COPY FILED AS AN EXHIBIT OMITS THE INFORMATION SUBJECT
  TO THE CONFIDENTIALITY REQUEST.*




EXECUTION VERSION


26, 2006, attached as Exhibit B to this Agreement and incorporated
herein by this reference, which shall continue to be a binding agreement
between the Parties;


NOW, THEREFORE, in consideration of the promises and mutual covenants
set forth in this Agreement, the Parties agree to the terms and conditions set
forth herein below:


ARTICLE I.

TERM AND TERMINATION


          Section 1. Term. This Agreement shall commence on the
Effective Date and shall continue in effect for a term of five (5) years
(hereinafter the “Initial Term”). Unless either Party notifies the other Party
of its desire not to renew the term of this Agreement at least ninety (90) days
prior to the expiration of the Initial Term or any Renewal Term (as defined
below), the term shall be automatically renewed for additional five (5) year
periods (each such renewed term, a “Renewal Term” and, together with the
Initial Term, the “Term”).


          Section 2. Termination for Breach. Either Party may
terminate this Agreement upon a material or continuing breach of this Agreement
by the other Party by providing thirty (30) days prior written notice of
termination to such other Party, stating the cause therefor. If within such
thirty (30) day notice period, the cause for termination is not cured to the
reasonable satisfaction of the Party giving notice, the termination shall
become effective at the conclusion of such thirty (30) day notice period,
provided that (X) the cure period for a payment default will be ten (10)
business days after notice thereof and (Y) disruption or interruption of
network services will be no greater than the threshold set forth in the
standard Terms and Conditions that govern the 4G Service as provided to end
user customers (the “Standard Terms and Conditions”).


          Section 3. Automatic Termination. Except as provided
for in ARTICLE IV, Section 3, either Party may terminate this Agreement if any
one of the following events occur: (i) if the other Party becomes insolvent or
admits in writing its inability to pay debts as they mature, or makes an assignment
for the benefit of creditors and as a result thereof cannot perform its
material obligations hereunder; (ii) if a petition under any foreign, state or
United States bankruptcy act, receivership statute, or the like, as they now
exist, or as they may be amended, is filed by the other Party and as a result
thereof such Party cannot perform its material obligations hereunder; or (iii)
if such a petition is filed against the other Party by any third Party and such
application is not resolved favorably to such other Party within sixty (60)
days and as a result thereof such Party cannot perform its material obligations
hereunder.


          Section 4. Survival. In addition to the sections and
provision of this Agreement that by their nature survive expiration or
termination or which must survive





EXECUTION VERSION


expiration or termination in order to give effect to their meaning, the
provisions of ARTICLE V.Section 1 (subject to the final sentence of this
Section 4) and the Non-Disclosure Agreement shall survive any expiration or
termination of this Agreement in accordance with their respective terms.
Wave2Wave acknowledges that in the event of termination of this Agreement, it
remains liable for any amounts incurred under ARTICLE V.Section 1 through, but
not for any time after, the date of such termination.


          Section 5. Nonexclusive Remedy. Subject to the
provision of ARTICLE VI of this Agreement, termination of this Agreement by
either Party will be a nonexclusive remedy for breach and will be without
prejudice to any other right or remedy of such Party.


ARTICLE II.

RIGHTS AND RESPONSIBILITIES OF THE PARTIES


The Parties shall perform their respective responsibilities as follows,
and acknowledge that their respective performance of such responsibilities are
dependent upon the performance of the other Party hereunder:


          Section 1. INI Responsibilities.


                    a.
INI will have the sole responsibility for completing pre-site network design
and engineering, and installation of a converged wireless and wireline networks
within the Territory based on utilizing INI’s Converged Broadband Wireless and
Wireline Network Products and Technologies, Next Generation Network Service
Concepts (collectively, the “4G Technology”) and Network Design & Support
Services expertise.


                    b.
INI will have the sole responsibility within the Territory, on a building-by-building
basis, prior to any 4G Services installation, to perform pre-site network
design and engineering, and shall provide Wave2Wave with a Price Quotation
(“Quote”) which specifies the price to be paid by Wave2Wave to INI for the cost
of the 4G wireless network equipment (the “Equipment”), Equipment installation
and 4G Service and Equipment maintenance, the latter in accordance with
established industry standards.


                    c.
INI will have the sole responsibility for installing the aforementioned 4G
equipment and for insuring, to the Parties’ mutual and reasonable satisfaction,
that the 4G Service operates in accordance with established industry standards.
Such mutual and reasonable satisfaction shall be deemed “Acceptance”.





EXECUTION VERSION


                    d.
INI will provide Wave2Wave with access to Class 4/5 IP Network Services Node
(the “Network Service Node”) capacity within a New York or New Jersey POP
Location for use in the Territory by Wave2Wave’s customers. The purchase price
for the equipment portion of the Network Service Node is estimated, as of the
Effective Date, at [***].


                    e.
INI will have the sole responsibility for ongoing 4G network equipment and
service maintenance.


                    f.
INI has sole responsibility for ongoing maintenance and modernization of such
Network Service Node, in accordance with established industry standards.


                    g.
In connection with the Lincoln Building project, INI will finance all
equipment, installations, connectivity and services provided by the Parties.
For successive buildings in the Territory, the Parties shall determine which of
the Parties shall finance such equipment (the “Financing Party”).


                    h.
Wave2Wave shall have the right of first refusal, as described below, to deploy
or otherwise utilize the 4G Technology and the 4G Services in office buildings
(each, an “Eligible Building”) that are, at the time of such opportunity: (i)
not otherwise accessed or serviced by INI; and (ii) set forth on the
then-current version of Exhibit A which may be updated and revised by Wave2Wave
by written notice to INI during the Term. If INI shall be ready, willing, and
able to accept any offer to deploy or otherwise utilize the INI Technology in
any Eligible Building, then INI shall give Wave2Wave prompt written notice of
such offer and the proposed compensation arrangement and term of engagement.
Wave2Wave shall then have the right of first refusal to engage INI’s services
on the same compensation arrangement and terms offered by the entity proposing
such offer to INI. Wave2Wave shall exercise such right of first refusal by giving
INI written notice that it is doing so no later than thirty (30) days after
receipt by Wave2Wave of INI’s said notice.


          Section
2. Wave2Wave Responsibilities.


                    a.
In the event that Wave2Wave requirements for Network Service Node capacity
exceeds INI’s existing capacity, Wave2Wave shall, in no event, contract for the
provision of additional Network Services Node capacity from any company other
than INI without first extending to INI the right of first negotiation to
provide the additional Network Service Node capacity on fair and reasonable
terms commensurate with existing market practices.





EXECUTION VERSION


                    b.
Wave2Wave will have the sole responsibility for providing all end-user
equipment, customer service support, billing, and provisioning as well as
management services for the underlying projects selected by the Parties.


                    c.
Wave2Wave will have the sole responsibility for maintaining end-user equipment
for customers of the Parties under this Agreement;


                    d.
Wave2Wave will have the sole responsibility for procuring additional business
opportunities and selling to all potential customers. However, following the
one (1) year anniversary of the first commercial customer availability of the
4G Service pursuant to this Agreement, if the actual sales of the 4G Service
fail to reach fifty percent (50%) of the sales milestones that are developed by
the parties in the five-year business plan that the parties will establish pursuant
to Article III, Section 3 of this Agreement, INI reserves the right to market
and sell the service itself, or through a third party, subject to any
applicable restrictions imposed by any building, whether as a result of
Wave2Wave’s access agreement with such building or otherwise.


                    e.
Wave2Wave will have the sole responsibility for obtaining and securing for the
Parties the right and access, and all pertinent documentation, agreements and
any required authorizations or permits, to perform the installation of the
network equipment for the enterprise within the Territory.


                    f.
Wave2Wave will have the sole responsibility for maintaining all billing and
accounting records for the sale to the customers in the Territory, in addition
to such other buildings as the Parties may hereafter agree to add pursuant to
the terms and conditions of this Agreement or by amendment hereto.


                    g.
Wave2Wave shall have the lead role and responsibility for the marketing, and promotion
of the 4G Service in connection with the Parties, provided however that (i) Wave2Wave shall be under no
obligation to use its good faith efforts to so market and promote the 4G
Service in connection with any building until Acceptance of the installation
with respect to such building; (ii) INI will cooperate with Wave2Wave by
providing information and support for such marketing activities, as reasonably
requested by Wave2Wave at no additional cost to Wave2Wave. Examples of such
support as provided by INI may include consultation services regarding
marketing and systems support, marketing opportunity assessment, solution
design reviews and product availability and delivery assistance. In addition,
during the Term of this Agreement, INI agrees to provide appropriate
promotional support to Wave2Wave’s sales and marketing efforts in a manner and
upon terms mutually acceptable to the Parties, at no additional cost to
Wave2Wave.





EXECUTION VERSION


ARTICLE III.

PAYMENT PLAN; NETWORK EQUIPMENT AND INVESTMENT


          Section 1. Purchase Amount. The Financing Party shall
pay for the purchase price for the Equipment (for any building or group of
buildings, as agreed by the Parties, the “Purchase Amount”) as provided in this
Article III. The Purchase Amount for the Equipment required for the Lincoln
Building is estimated, as of the Effective Date at [***]. The Purchase Amount for Equipment with respect to
additional buildings within the Territory shall be as set forth in individual
purchase orders agreed in writing from time to time as the Parties agree to add
additional buildings to the scope of this Agreement. The Purchase Amount with
respect to the Equipment used for the Lincoln Building shall be paid by
Wave2Wave as follows:


                    a.
In accordance with ARTICLE V, Wave2Wave will pay the Purchase Amount through
the payment of the Revenue Share (as defined below) to INI. At such time as the
aggregate amount of the Investment (as defined below) and any Revenue Share is
equal to the Purchase Amount, the Purchase Amount shall be deemed paid in full
and title to the Equipment shall pass to Wave2Wave.


                    b.
Profit Sharing. At all times during the Term,
Wave2Wave shall pay to INI the Revenue Share in accordance with ARTICLE V of
this Agreement.


          Section 2. Delivery and Risk of Loss. INI shall
deliver the Equipment to the designated delivery site F.O.B. such delivery site
(“Delivery Site”). Risk of loss to the Equipment shall pass to Wave2Wave
immediately upon the arrival of the Equipment at the Delivery Site.
Notwithstanding the foregoing, each Party shall be solely responsible for any
damage to the Equipment caused by such Party’s (or it’s subcontractor’s or
designee’s) acts, omissions, negligence or misconduct.


          Section 3. Milestones. Using the Lincoln Building
Project as a demonstration platform, the Parties will develop plans to deploy
the 4G Services and 4G Technology throughout the Territory, based on a five (5)
year business plan which will be reviewed, updated and approved on a
bi-quarterly basis, beginning with the execution of this Agreement, subject to
approval by each Party’s respective Board of Directors. The Parties acknowledge
that this Agreement may require revision, amendment and/or expansion following
such approvals.


          Section 4. Periodic Checkpoints on Strategy and Alignment.
During the Term, appropriate representatives of INI and Wave2Wave will meet in
person or by telephone, as mutually agreed by the Parties from time to time, at
least four (4) times per year to review strategic plans, marketing programs,
partnership opportunities and other matters relevant 





EXECUTION VERSION


to the success of the
joint project initiatives described herein. The results of these periodic
checkpoints are expected to be documented plans for equipment installation and
service provisioning throughout the Territory with tasks, task owners,
milestones and deliverables which may require revision, amendment and/or
expansion of this Agreement.


ARTICLE IV.

LICENSES; OWNERSHIP; MAINTENANCE AND SUPPORT


Section 1. License Grant. In
all cases pursuant to and in consideration of Wave2Wave’s payment for
applicable fees thereunder:


	
  

 	
  

 
	
  

 	
           (a)
 INI hereby grants Wave2Wave a nonexclusive and nontransferable (except as set
 forth herein) license to use the Network Services Node, and, under its
 intellectual property rights, the 4G Technology. The duration of such license
 to the 4G Technology shall be as follows: (i) for Equipment with respect to
 which INI is the Financing Party, including the Equipment for the Lincoln
 Building, such license shall be for the Term and upon payment in full by
 Wave2Wave of the Purchase Amount, such license shall be converted to a
 perpetual license; and, (ii) for Equipment with respect to which Wave2Wave is
 the Financing Party, such license shall be a perpetual license commencing
 upon delivery of the applicable Equipment.

 
	
  

 	
  

 
	
  

 	
           (b)
 Subject to the terms of this Agreement and for Equipment with respect to
 which INI is the Financing Party, INI grants to Wave2Wave a nonexclusive,
 nontransferable, license during the Term to use the Equipment in the
 Territory until such time as title to the Equipment transfers to Wave2Wave
 pursuant to the terms and conditions of this Agreement. The scope of the
 foregoing license encompasses Wave2Wave’s internal use of Equipment in
 connection with providing 4G Services to its customers, but excludes any
 sublicensing, uploading or otherwise transferring, or providing direct access
 to, the Equipment (except as necessary to accomplish the provision of the 4G
 Services to such customers) to any third party without INI’s prior written
 consent.

 



Section 2. License fees. The Parties agree that the
consideration which would otherwise be due to INI pursuant to clauses (a) and (b) above shall be
incorporated into amounts which will otherwise be due under the Revenue Sharing
arrangement.


 Section 3. Section 365(n). Notwithstanding the
provisions of Article I, Section 3, the rights to the 4G Technology licensed
pursuant to Section 1(a) of this Article IV are, and shall otherwise be deemed
to be, for purposes of Section 365 (n) of the United States Bankruptcy Code
(the “Code”), licenses to rights to “intellectual property” as defined under
the Code. INI acknowledges that if it, as a debtor in 





EXECUTION VERSION


possession or a trustee in bankruptcy in a case under the Code, rejects
this Agreement, then Wave2Wave may elect to retain its rights under this
Agreement as provided in Section 365(n) of the Code. The Parties further agree
that, in the event of the commencement of any bankruptcy proceeding by or
against INI under the Code, Wave2Wave shall be entitled to retain all of such
rights under this Agreement in accordance with Section 365(n) of the Code. INI
agrees and acknowledges that enforcement by Wave2Wave of any rights under
Section 365(n) of the Code in connection with this Agreement shall not violate
the automatic stay of Section 362 of the Code and waives any right to object on
such basis.


Section 4. Ownership. With respect to Equipment for which
INI is the Financing Party, INI solely owns all rights, title and interest in
and to the Equipment installed, and reserves all rights thereto not expressly
granted under this Agreement. Title to such Equipment shall pass to Wave2Wave
upon payment in full to INI of the Purchase Amount in accordance with Article
V. Title to Equipment for which Wave2Wave is the Financing Party shall transfer
to Wave2Wave upon the payment by Wave2Wave of the applicable Quote.


ARTICLE V.

REVENUE SHARING


          Section 1.
The Parties shall share the revenue derived from this Agreement pursuant to the
following calculation:


          “Revenue
Share” = [***]


where, with respect to any building in the Territory “Gross Revenue”
means [***], “Baseline Revenue”
means [***], and “Expenses” means [***] A detailed description of applicable
Expenses, for purposes of this Section 1 shall be agreed between the Parties in
the five (5) year business plan agreed to by each Party’s respective Board of
Directors. With respect to buildings in which Equipment with respect to which
the Purchase Amount has not been recovered in full by the Financing Party: (i)
in the event that such Financing Party is INI, the Applicable Percentage for
purposes of calculating the Revenue Share payable by Wave2Wave to INI shall
equal [***] until such Purchase
Amount has been recovered by INI and (ii) in the event that such Financing
Party is Wave2Wave, the Applicable Percentage for purposes of calculating the
Revenue Share payable by Wave2Wave to INI shall equal [***] until such Purchase Amount has been
recovered by Wave2Wave. Following the recovery of the Purchase Amount by the
Financing Party with respect to any building, the Applicable Percentage shall
be equal to [***].


Section 2. Within thirty (30) days following the conclusion of any
calendar quarter, Wave2Wave shall remit to INI the Revenue Share, together with
an accounting, in 





EXECUTION VERSION


reasonable detail and consistent with generally accepted accounting
principles, setting forth information used to calculate the Revenue Share.


Section 3. INI shall have the right to audit Wave2Wave’s books and
records for the sole purpose of determining whether Wave2Wave has complied with
this ARTICLE V. If an audit reveals underpayment of fees due under this
Agreement, all such amounts will be promptly paid with interest at the
prevailing U.S. dollar prime rate accruing from the original due date. If any
such underpayment exceeds 5% of the revenue due to INI for the period audited,
Wave2Wave will also pay INI’s reasonable and actual costs of conducting the
audit. Any information disclosed to or developed by INI in connection with any
audit shall be the Confidential Information of Wave2Wave.


Section 4. Each Party, its Affiliates and sublicensees shall at all times
act in good faith and in a commercially reasonable manner (including, without
limitation, the use of generally accepted accounting principles, consistently
applied) and shall not intentionally or knowingly inappropriately or
inaccurately apportion amounts invoiced for the purpose or effect of
circumventing or depriving the other Party of any benefit due them under this
Agreement.


Section 5. As an additional inducement for INI to enter into this
Agreement, Wave2Wave will purchase from INI on the Effective Date, and INI
shall sell, transfer, convey, assign and deliver to Wave2Wave within one week
from the Effective Date, each subject to and pursuant to the terms and
conditions of a Subscription Agreement, substantially in the form of Exhibit C
attached hereto, [***] shares of
the common stock, par value $.01 per share (the “Common Stock”) of incNETWORKS,
Inc. at a price of [***] per
share, for a total payment of [***]
(the “Investment”).


ARTICLE VI.

REPRESENTATIONS AND WARRANTIES; INDEMNITIES


          Section 1. General Warranties. Each Party represents,
warrants and covenants to the other that:


                    a.
it is duly organized and validly existing and is in good standing under the
laws of its jurisdiction of organization and is qualified and in good standing
as a foreign corporation under the laws of any jurisdiction where the ownership
of its assets or the conduct of its business require such Party to be so
qualified;


                    b.
its execution, delivery, and performance of this Agreement has been duly
authorized by all appropriate organizational action on the part of such Party
and this Agreement constitutes the valid and binding obligation of such Party
enforceable against such Party in accordance with the terms of this Agreement;





EXECUTION VERSION


                    c.
neither the execution and delivery by such Party of this Agreement, nor the
consummation by such Party of the transactions contemplated hereby, nor
compliance by such Party with the provisions hereof, conflicts with or results
in a breach of any of the provisions of the organizational documents or by-laws
of such Party, or any amendments thereto, or any applicable law, judgment,
order, writ, injunction, decree, rule or regulation of any court,
administrative agency or other governmental authority, or of any agreement or
other instrument to which such Party is a party or by which it is bound, or
constitute a default under any provision thereof;


                    d.
no approval, authorization, consent, permission, or waiver to or from, or
notice, filing, or recording to or with, any person, entity or governmental
authority is necessary for the execution and performance of this Agreement;


                    e.
it has and shall maintain during the Term the proper licenses and rights to
perform its obligations hereunder;


                    f.
its personnel have and shall have the necessary experience, qualifications,
knowledge, competency and skill set to perform the obligations of such Party
pursuant to this Agreement;


                    g.
it is in compliance with all applicable local, city, state, federal and
international laws, rules and regulations including all environmental,
immigration, safety and health and labor and employment (including those
addressing discrimination, harassment and retaliation) laws, rules and
regulations, and shall remain in compliance during the Term of this Agreement;
and


                    h.
it shall instruct its personnel in any applicable safety standards and
protocols of which it is made aware, and shall follow all such standards and
protocols.


          Section 2. Territory Access Warranties. Wave2Wave
represents and warrants that it has secured access to the Territory and that it
will be able to meet its obligations under ARTICLE II. Section 2.e hereof as of
the Effective Date. In the event of any breach of this Warranty, Wave2Wave will
reimburse INI for any additional costs incurred by it in order to procure
access to a building in the Territory in order to perform the Joint Work under
this Agreement.


          Section 3. Equipment and Other Warranties.


                    a.
INI agrees to provide the 4G Service hereunder in accordance with established
industry standards, the service levels specified in the Standard Terms and
Conditions, and any additional requirements established jointly and in writing
by the Parties for a specific building within the Territory. The foregoing
extends to the Equipment’s performance as part of the 4G Service, and the
compatibility of the 





EXECUTION VERSION


Equipment, as part of the Service, with products, elements, or
components not supplied by INI but approved or recommended by INI for use in
connection with the 4G Service, including interfaces to equipment or systems
defined in any appendices hereto for which INI is responsible pursuant to this
Agreement.


                    b.
INI shall pass through to Wave2Wave any manufacturer warranties for Equipment
hardware or components and, to the extent necessary or to the extent that any
such manufacturer warranty prohibits such pass-through, assist Wave2Wave in the
pursuit of any claims or rights thereunder.


                    c.
In the event of any breach of the warranty set forth in this Section 3, INI
shall promptly repair or replace the defective or nonconforming Equipment or
otherwise cure any defects and deficiencies so that the Equipment, 4G Service
and Network Service Node shall perform in accordance with the requirements of
this Agreement.


                    d.
Notwithstanding the foregoing, INI shall have no liability pursuant to this
Section 3 for:


                         i.
damage caused by an event of Force Majeure other than to the extent that the
Equipment or component of the Service should have been able to withstand any
such Force Majeure event, in accordance with established industry standards; 


                         ii.
alterations by Wave2Wave and/or INI at Wave2Wave’s request against INI’s
written recommendations and inconsistent with this Agreement, excluding normal
maintenance or parameter changes; damage or deficiencies resulting from a
failure by Wave2Wave to comply with established industry standards; damage
resulting from the gross negligence or willful misconduct of Wave2Wave, or any
of its employees, agents or contractors (other than INI and its permitted
subcontractors); or performance or damages directly resulting from the failure
of equipment or software (or any related services) not provided by INI or any
of its permitted subcontractors (provided that INI has not contributed to such
failure or failed to comply with INI’s project management responsibilities
which contributed to such failure), provided that this shall not limit INI’s
obligations under the Standard Terms and Conditions.


          Section 4. Infringement Indemnity. INI will defend
and hold harmless Wave2Wave from any losses or expenses (including reasonable
legal fees) arising from any third-party action brought against Wave2Wave to
the extent based on a claim that the 4G Service or the 4G Technology infringes
any patent, copyright or other intellectual property right. Wave2Wave will
defend and hold harmless INI from any losses or expenses (including reasonable
legal fees) arising from any third-party action brought against INI to the
extent based on a claim that an add-on product, or other product 





EXECUTION VERSION


used in connection with Wave2Wave’s facilities and not provided,
recommended or approved by INI infringes any patent, copyright or other
intellectual property right. The Party entitled to indemnification hereunder
will (a) promptly notify the other Party in writing of the claim, (b) grant the
other Party sole control of the defense and settlement of the claim, and (c)
reasonably assist the other Party in defending the claim, at such other Party’s
expense.


          Section 5. Service Warranty.


                    a.
The Parties shall, subject to the terms and conditions hereof, perform their
obligations hereunder with reasonable care and in good faith, and in a manner
consistent with the procedures and practices that a prudent business person in
the industry would employ relating to services of the nature and character
provided hereunder, using a degree of skill and attention no less than that
which each Party customarily exercises with respect to customers or territory
not subject to this Agreement that they manage for others in accordance with
their existing practices and procedures.


                    b.
INI warrants that all services provided to Wave2Wave under this Agreement by
its personnel or permitted subcontractors will be provided in accordance with
standard industry practices. Wave2Wave will notify INI of any alleged breach of
this warranty within thirty (30) days of the performance of any such services.
In the event of a breach of this warranty, Wave2Wave’s sole and exclusive
remedy for such breach shall be for INI to repair or re-perform such services
without charge to Wave2Wave.


                    c.
Wave2Wave warrants that all services provided to customers using capacity on
the Network pursuant to this Agreement by its personnel or permitted
subcontractors will be performed in accordance with standard industry
practices.


          Section 6. Resources. INI represents and warrants
that it possesses sufficient monetary resources as of the Effective Date and
taking into account the Investment, to complete its obligations hereunder in
connection with the Lincoln Building project, and to operate for a reasonable
period of time thereafter.


          Section 7. Liability. Each Party shall be responsible
for, and hereby assumes, any and all risks of personal injury or property
damage attributable to the grossly negligent or willful acts or omissions,
during the Term of this Agreement, of such Party, its affiliates and their
respective directors, officers, employees and agents and for the activities
such Party is responsible for conducting under this Agreement. Each Party
agrees to indemnify and hold the other harmless with respect to such
liabilities.





EXECUTION VERSION


ARTICLE VII. GENERAL PROVISIONS


          Section 1. Applicable Law. This Agreement shall be
construed and enforced in accordance with, and governed by, the law of the
State of New Jersey. The Parties hereto exclusively submit to the exclusive
jurisdiction of the courts of the State of New Jersey to the extent required
for the litigation of any claim, dispute or difference that may arise
hereunder, and each Party hereby irrevocably consents that service of process
shall be valid if served in the manner and to the address set forth herein.


          Section 2. Expenses. Other than as set forth herein,
all expenses incurred by the Parties under this Agreement will be borne solely
and entirely by the Party which has incurred such expenses.


          Section 3. Forum for Resolving Disputes. Any claim or
controversy arising out of or related to a claimed violation or material breach
of this Agreement or any of the provisions herein shall be resolved by final
and binding arbitration administered by JAMS or another provider of arbitration
services in accordance with their current rules for resolving commercial
disputes. Notwithstanding the above, either Party shall also have the right to
seek equitable and injunctive relief in any New Jersey court of competent
jurisdiction in the event that a breach or threatened breach may give rise to





EXECUTION VERSION


irreparable injury to such Party which may not be adequately
compensated by monetary damages.


          Section 4.
OTHER THAN IN CONNECTION WITH A PARTY’S INDEMNIFICATION OBLIGATIONS OR A PARTY’S
BREACH OF ITS OBLIGATIONS PURSUANT TO THE NON DISCLOSURE AGREEMENT, NEITHER
PARTY SHALL BE LIABLE TO THE OTHER OR TO ANY THIRD PARTY FOR ANY SPECIAL,
INDIRECT, CONSEQUENTIAL, PUNITIVE OR EXEMPLARY DAMAGES, INCLUDING, BUT NOT
LIMITED TO, LOST PROFITS ARISING OUT OF THIS AGREEMENT, EVEN IF THE PARTIES
HAVE KNOWLEDGE OF THE POSSIBILITY OF SUCH DAMAGES. OTHER THAN IN CONNECTION
WITH A PARTY’S INDEMNIFICATION OBLIGATIONS OR A PARTY’S BREACH OF ITS
OBLIGATIONS PURSUANT TO THE NON DISCLOSURE AGREEMENT, NOTWITHSTANDING ANYTHING
CONTAINED HEREIN TO THE CONTRARY, THE MAXIMUM EXTENT OF EACH PARTY’S LIABILITY
TO THE OTHER HEREUNDER, SHALL NOT, UNDER ANY CIRCUMSTANCES EXCEED THE AGGREGATE
FEES ACTUALLY PAID BY WAVE2WAVE TO INI IN CONNECTION WITH THE BUILDING ACTUALLY
GIVING RISE TO SUCH LIABILITY.


          Section 5. Subcontracting/Assignment. Neither Party
shall subcontract or delegate any of its responsibilities hereunder to any
other party without the prior written consent of the other Party, which consent
shall not be unreasonably withheld or delayed. Either Party may only assign
this Agreement in its entirety, upon written notice to the other Party: (i) to
an affiliated company; or (ii) to an unaffiliated company pursuant to a sale,
merger or other consolidation of the other Party or any of its applicable
operating division and covenants that this Agreement shall be assigned in the
event of any such sale, merger or other consolidation. Any assignment other
than as described above shall be null and void.


          Section 6. Attachments. All attachments to this
Agreement shall be deemed a part of this Agreement and incorporated herein by
reference.


          Section 7. Amendment. This Agreement may not be
modified or amended or any term or provision hereof waived or discharged except
in a physical writing (e.g., no e-mail) signed by the Parties.


          Section 8. Waiver. The waiver by one Party of a
breach of any provision of this Agreement by the other shall not operate or be
construed as a waiver of any subsequent breach.


          Section 9. Construction. The headings of contained in
this Agreement are for convenience of reference only and shall not limit or
otherwise affect the meaning thereof. Words importing the singular include the
plural, words importing any gender





EXECUTION VERSION


include every gender and words importing persons include entities,
corporate and otherwise; and (in each case) vice versa. Whenever the terms
“including” or “include” are used in this Agreement in connection with a single
item or a list of items within a particular classification (whether or not the
term is followed by the phrase “but not limited to” or words of similar effect)
that reference shall be interpreted to be illustrative only, and shall not be
interpreted as a limitation on, or an exclusive enumeration of the items within
such classification.


          Section 10.
Independent Parties. INI and
Wave2Wave are independent parties. Nothing in this Agreement will be construed
to make either Party an agent, employee, franchisee, joint venturer or legal
representative of the other Party. Neither Party will have, nor represent
itself to have, any authority to bind the other Party or act on its behalf.


          Section 11.
Severability. If for any reason
any provision of this Agreement becomes unenforceable, other than as a result
of a breach or default by a Party that provision of the Agreement will be
enforced to the maximum extent permissible and the other provisions of this
Agreement will remain in full force and effect.


          Section 12.
Notices. All notices required or
permitted under this Agreement will be in writing and will be deemed given when
personally delivered or three business days after being mailed by U.S.
certified mail, first class, postage prepaid (or by reputable courier service
with package tracking ability, such as Fed Ex, UPS, DHL, etc.), to such Party
at the address set forth in the first paragraph of this Agreement. Each Party
may change such address by notice to the other Party in compliance with this Section.


          Section 13.
Force Majeure. Neither Party will
be responsible for any failure or delay in its performance under this Agreement
due to causes beyond its reasonable control, including but not limited to,
labor disputes, strikes, lockouts, shortages of or inability to obtain labor,
energy, raw materials or supplies, war, riot, act of God or governmental
action.


          Section 14.
Counterparts. This Agreement may
be executed in any number of counterparts, each of which shall be deemed an original
but all of which taken together shall constitute one and the same instrument.





EXECUTION VERSION


IN WITNESS WHEREOF, the Parties have executed this Agreement as of the
day and year first above written.


	
  

 	
  

 
	
 incNETWORKS,
 Inc.

 	
 WAVE2WAVE
 COMMUNICATIONS, INC.

 
	
  

 	
  

 
	
 By: /s/ Jesse E.
 Russell

 	
 By: /s/ Steven
 Asman

 
	
 Print Name: Jesse
 E. Russell

 	
 Print Name: Steven
 Asman

 
	
 Title: CEO

 	
 Title: President

 



* We have
requested confidential treatment of certain provisions contained in this
exhibit. The copy filed as an exhibit omits the information subject to the
confidentiality request.*