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Operating and Performance Matters Sample Clauses

Operating and Performance Matters. The operating and performance standards for each Service shall be as set forth in the Product Supplement for the relevant Service. Seller will provide Buyer five (5) days’ prior written notice of any scheduled maintenance performed by or on behalf of Seller on its facilities that, in Seller’s sole opinion, has a substantial likelihood of noticeably affecting the Service. Seller will provide Buyer as much advance notice as reasonably practicable with regard to any scheduled maintenance performed on any Third Party Facilities that provides Services under this Agreement. Notwithstanding the foregoing, in the event of an emergency, Seller will have the right to perform maintenance and/or restoration of its facilities or Third Party Facilities (including, without limitation, actions required to restore continuity to a severed or partially severed fiber optic cable, restore dysfunctional power and ancillary support equipment, or correction of any potential jeopardy conditions), and Seller will notify Buyer as soon as reasonably practicable thereafter. Buyer will follow Seller’s procedures and processes for reporting repair, problem and maintenance requirements associated with the Services provided to Buyer. If, on responding to a Buyer-initiated service call, Seller determines that the cause of a Service Outage or other problem is a failure, a malfunction or the inadequacy of Buyer’s equipment or facilities, then Buyer shall compensate Seller, at Seller’s prevailing rates, for time and materials expended during the service call. The remedies associated with any failure or delay of Seller (a) to provide the Services in accordance with the operating and performance standards set forth in the Product Supplement for the relevant Service, (b) to maintain and operate facilities in accordance with Sections 4 and 6, and/or (c) to otherwise perform in accordance with any other obligations it may have under this Agreement or otherwise to Buyer (any failure of Seller with respect to (a), (b), or (c) above being referred to as a “Performance Failure”) shall be exclusively in the form of the liquidated damages and other express remedies (the “Performance Liquidated Damages”) set forth in the Product Supplement for the relevant Service. BUYER’S RIGHT TO RECEIVE SUCH PERFORMANCE LIQUIDATED DAMAGES SHALL BE BUYER’S SOLE AND EXCLUSIVE REMEDY AND SELLER’S SOLE AND EXCLUSIVE OBLIGATION IN THE EVENT OF A PERFORMANCE FAILURE, EVEN IF SUCH REMEDY IS DEEMED TO FAIL ITS ESSENTIAL PURPO...
Operating and Performance Matters. (a) Any failure of performance or delay attributable to Customer or Customer’s agents, representatives, or other contractors, or End Users, or any failure, incompatibility, or unavailability on the part of Customer’s equipment or network, End Users’ equipment or network, facilities, or systems provided by Customer’s other contractors or any End User or End User’s other contractors (“Third Party Equipment”), shall not serve i) In the event that Evolve IP installs dedicated connectivity between Evolve IP and any End User, including, but not limited to, T-1s, DS3s, Ethernet services, and fiber connectivity (“Dedicated Access”), and there has been any delay attributable (in Evolve IP’s sole discretion) to Customer or any End User that delays the Service Activation date for more than five (5) business days past the date of the installation of the Dedicated Access, Evolve IP reserves the right to begin invoicing Customer for the Dedicated Access, and Customer agrees to pay for such charges. ii) In the event that there has been any delay attributable (in Evolve IP’s sole discretion) to Customer or any End User that delays the Service Activation Date of any Services for more than sixty (60) days past the date of the Sales Order executed by Customer, Evolve IP reserves the right to begin invoicing Customer for all or a portion of the Services ordered, and Customer agrees to pay for such charges. Notwithstanding the foregoing, these charges will not apply in the event that Evolve IP and Customer had previously agreed in writing to a phased installation of the Services. (b) Following the Service Activation Date, Evolve IP will provide as much advance telephonic, written, or electronic notice as reasonably practicable with regard to any scheduled maintenance with respect to the Services. Notwithstanding the foregoing, in the event of an emergency, Evolve IP shall have the right to perform maintenance and/or restoration of its network, Evolve IP-Provided Equipment, and the Services, without advance notice. (c) Evolve IP will provide to Customer procedures and processes for reporting repair, problem, and maintenance requirements associated with the Services. If, upon responding to a Customer-initiated service call, Evolve IP reasonably determines that the source of the trouble or failure is a failure, malfunction, or inadequacy on the part of Customer or any End User, Customer’s equipment or any End User’s equipment, or any other of Customer’s or any End User’s supplier...
Operating and Performance Matters 

Related to Operating and Performance Matters

  • Parties to Lock-Up Agreements The Company has furnished to the Underwriters a letter agreement in the form attached hereto as Exhibit A (the “Lock-up Agreement”) from each of the persons listed on Exhibit B. Such Exhibit B lists under an appropriate caption the directors and executive officers of the Company. If any additional persons shall become directors or executive officers of the Company prior to the end of the Company Lock-up Period (as defined below), the Company shall cause each such person, prior to or contemporaneously with their appointment or election as a director or executive officer of the Company, to execute and deliver to the Representatives a Lock-up Agreement.

  • Conditions to Obligations of Sellers The obligations of Sellers to consummate the transactions contemplated by this Agreement are subject to the fulfillment or written waiver, prior to or at the Closing, of each of the following conditions; provided, however, that in no event may Sellers waive the conditions contained in Section 7.3(h) or Section 7.3(i): (a) Each of the representations and warranties of Purchaser contained in ARTICLE V of this Agreement shall be true and correct (disregarding for the purpose of such determination any qualification as to materiality or Purchaser Material Adverse Effect) as of the Closing Date as if made on such date (except for representations and warranties that speak as of a specific date or time, which representations and warranties shall be true and correct only as of such date or time), except to the extent that any breaches of such representations and warranties, individually or in the aggregate, have not had, or would not reasonably be expected to have, a Purchaser Material Adverse Effect. (b) Purchaser shall have performed or complied in all material respects with all agreements and obligations required by this Agreement to be performed or complied with by it prior to or at the Closing. (c) Purchaser shall have delivered, or caused to be delivered, to Sellers: (i) Parent Warrant A (including the related warrant agreement), duly executed by Purchaser; (ii) Parent Warrant B (including the related warrant agreement), duly executed by Purchaser; (iii) a certificate executed as of the Closing Date by a duly authorized representative of Purchaser, on behalf of Purchaser and not in such authorized representative’s individual capacity, certifying that the conditions set forth in Section 7.3(a) and Section 7.3(b) are satisfied; (iv) stock certificates evidencing the Parent Shares, duly endorsed in blank or accompanied by stock powers duly endorsed in blank, in proper form for transfer, including any required stamps affixed thereto; (v) the Equity Registration Rights Agreement, duly executed by Purchaser;

  • Conditions to Obligations of Seller The obligations of Seller to consummate the transactions contemplated by this Agreement shall be subject to fulfillment at or prior to the Closing of the following conditions (any one or more of which may be waived in whole or in part by Seller):

  • Conditions to Obligations of Parent and Sub The obligations of Parent and Sub to effect the Merger are further subject to the satisfaction or waiver on or prior to the Closing Date of the following conditions:

  • Conditions to Obligations of Parent and Merger Sub The obligations of Parent and Merger Sub to effect the Merger are also subject to the satisfaction or waiver by Parent at or prior to the Effective Time of the following conditions:

  • Conditions to Obligations of Buyer and Seller The obligations of Buyer and Seller to complete the transactions contemplated by this Agreement are subject to the satisfaction at or prior to the Closing of the following conditions:

  • Conditions to Obligations of Company The obligation of Company to effect the Merger is also subject to the satisfaction or waiver by Company at or prior to the Effective Time of the following conditions:

  • CONDITIONS PRECEDENT TO OBLIGATIONS OF PARENT AND MERGER SUB The obligations of Parent and Merger Sub to effect the Merger and otherwise consummate the transactions contemplated by this Agreement are subject to the satisfaction, at or prior to the Closing, of each of the following conditions:

  • Additional Conditions to Obligations of Parent and Merger Sub The obligations of Parent and Merger Sub to consummate the Merger are subject to the satisfaction at or prior to the Effective Time of the following conditions, any or all of which may be waived exclusively by Parent, in whole or in part, to the extent permitted by applicable Law:

  • Conditions to the Obligations of Sellers The obligation of Sellers to consummate the Acquisition shall be subject to satisfaction of each of the following conditions, which may be waived in writing by TMM: (a) For purposes of this Section 8.3(a), the accuracy of the representations and warranties of KCS and KARA Sub set forth in this Agreement shall be assessed as of the date of this Agreement and shall be assessed as of the Closing Date with the same effect as though all such representations and warranties had been made again on and as of the Closing Date (provided, however, that the representations and warranties that speak as of a specific date other than the date of this Agreement shall speak only as of such date) and such representations and warranties shall be true and correct in all material respects; (b) Each of KCS and KARA Sub shall have performed and complied in all material respects with all agreements, covenants, obligations and conditions required by this Agreement to be performed or complied with by it at or prior to the Closing Date; (c) Each of KCS and KARA Sub shall have delivered to TMM a certificate, dated as of the Closing Date, signed on behalf of KCS or KARA Sub, as the case may be, by its Chief Executive Officer and Chief Financial Officer confirming the satisfaction of the conditions contained in Sections 8.3(a) and 8.3(b); (d) Each of the Ancillary Agreements shall have been duly executed and delivered by or on behalf of KCS, and Sellers shall have no reasonable basis for belief that any of such agreements shall not become effective at the Effective Time; (e) TMM shall have received an opinion dated the Closing Date of Xxxxxxxxxxxx Xxxx & Xxxxxxxxx, counsel to KCS, and Xxx Xxxxxxx, Associate General Counsel to KCS, in the form and as to the matters set forth on Exhibit H-1 and H-2, respectively, with such exceptions and qualifications as are reasonably acceptable to TMM; (f) There shall not exist any event or combination of events that, individually or in the aggregate, will (or would reasonably be expected to) prevent KCS from performing any of its post-Closing obligations under this Agreement or any Ancillary Agreement at or after the Effective Time; (g) Since December 31, 2002, there has not been any KCS Material Adverse Effect or any development or combination of developments that, individually or in the aggregate, has had or is reasonably likely to have a KCS Material Adverse Effect of which TMM did not have knowledge prior to the date of this Agreement; (h) TMM shall have received copies of all other consents, approvals, authorizations, qualifications and orders of all Governmental Authorities and all other Persons party to contracts with KCS or any of its Subsidiaries that are required in respect of the transactions to be consummated at Closing, other than those that, if not obtained, would not, individually or in the aggregate, reasonably be expected to have a KCS Material Adverse Effect and such consents and other items shall remain in full force and effect as of the Closing Date; (i) TMM shall have received the consents of the holders of the 2003 Notes and of the 2006 Notes referred to in Section 5.5, provided that TMM shall have used its commercially reasonable efforts to obtain such consents; and. (j) TMM shall have received the release referred to in Section 7.15.