Common use of Shipment, Title and Risk of Loss Clause in Contracts

Shipment, Title and Risk of Loss. 5.1 Prior to the Ship Date, Company shall have the right to reschedule any pending Orders; provided that (i) a minimum period of notice prior to such Ship Date is given to Nortel by Company in accordance with the applicable Product Annex; and (ii) the new Ship Date is within ninety (90) days of the original Ship Date. However, each Order may only be rescheduled once. Company shall reimburse Nortel for any storage fees, insurance and demurrage costs incurred with respect to such rescheduled Orders. 5.2 All Products shall be delivered to Company in accordance with Ex Works and risk of loss and damage to Products shall be construed as defined therein. Company shall keep such Products fully insured for the total amount then due Nortel for such Products. Company shall pay transportation charges, including insurance, associated with the shipment of Products; provided however, that if the parties agree, Nortel shall prepay transportation charges, and insurance for delivery of Products to the Installation Site or other delivery location or other designated receiving point as specified in an Order. The charges therefor shall be invoiced by Nortel and paid by Company to Nortel in accordance with Article 4 above. 5.3 Good title to Hardware furnished hereunder, free and clear of all liens and encumbrances, shall vest in Company upon full payment to Nortel of the total amount payable by Company for such Hardware and any related Licensed Software or Services ("Total Fee") furnished by Nortel in connection with such Hardware. Prior to payment of the Total Fee for the Products and Services in an Order, Company shall not sell or lease the Hardware, or allow any liens or encumbrances to attach to the Hardware or Software, or remove the Hardware or Software from the Installation Site without the prior written consent of Nortel, such consent not to be unreasonably withheld. 5.4 If Company notifies Nortel prior to a Ship Date that Company does not wish to receive such Products on the Ship Date, or the Installation Site or other delivery location is not prepared in sufficient time for Nortel to make delivery in accordance with such date, or Company fails to take delivery of any portion of the Products in an Order when shipped, Nortel may place the applicable Products in storage. In that event, Company shall be liable for all additional costs thereby incurred by Nortel. Delivery by Nortel of any Products to a storage location as provided above shall be deemed to constitute delivery of the Products to Company for purposes of this Agreement, including, without limitation, provisions for payment, invoicing, passage of risk of loss, and commencement of the warranty period. 5.5 Until the Total Fee is paid, Company grants to Nortel and/or its agents a purchase money security interest in the Products in an Order and their proceeds or such other similar protection as may be available in the applicable jurisdiction. Company shall cooperate with Nortel in preserving and perfecting Nortel's security interest in the Products and Company shall promptly (i) execute and deliver to Nortel such financing statements as Nortel may require and (ii) execute and deliver to Nortel such other agreements, documents and instruments as Nortel may require to perfect and maintain the validity, effectiveness and priority of the security interest created or intended to be created by this Agreement. Company authorizes Nortel to file one or more financing or continuation statements and amendments thereto, relating to all or any part of the Products in an Order without signature of the Company where permitted by law. A carbon, photographic or other reproduction of this Agreement or of any financing statement covering the Products or any part thereof shall be sufficient as a financing statement and may be filed as a financing statement. Company shall not sell, lease or otherwise transfer the Products or any portion thereof, except to Company Affiliates only, or allow any liens or encumbrances to attach to such Products or any portion thereof prior to payment in full of the Total Fee. Company Affiliates shall not sell, lease or otherwise transfer the Products or any portion thereof or allow any liens or encumbrances to attach to such Products or any portion thereof prior to payment in full of the Total Fee. 5.6.1 Company shall provide Nortel or its subcontractors with access to its Installation Sites or other Company facilities during the times specified by Nortel and as are reasonably necessary for Nortel to perform its obligations hereunder. Nortel shall comply with Company's reasonable site and security regulations of which Nortel is informed by Company. 5.6.2 All sites at which the Products shall be delivered or installed shall be prepared by Company in accordance with Nortel's standards, including, without limitation, environmental requirements. Prior to and during installation, Company shall ensure the timely and adequate delivery, installation and functioning of the electrical and communications connections and other environmental requirements, including but not limited to, HVAC systems, specified in Nortel's instructions, Specifications, Documentation or in a Product Annex. 5.6.3 Company shall provide reasonable working space and facilities, including heat, light, ventilation, telephones, electrical current, waste removal and other necessary utilities, for use by Nortel personnel performing installation or other Services, and adequate secure storage space, if required by Nortel, for Products and materials. Company shall also provide adequate security against theft, damage or other loss for the Products while on Company's Installation Site or other delivery location specified by Company. 5.6.4 Company shall obtain all necessary governmental permits applicable to Company in connection with the installation, operation, and maintenance of Products furnished hereunder, excluding any applicable permits required in the normal course of Nortel's doing business. Any information which Nortel reasonably requests from Company and which is necessary for Nortel to properly install or maintain the Products shall be provided by Company to Nortel in a timely fashion and in a form reasonably specified by Nortel.

Shipment, Title and Risk of Loss. 5.1 Prior to the Ship Date, Company shall have the right to reschedule any pending Orders; provided that (i) a minimum period of notice prior to such Ship Date is given to Nortel by Company in accordance with the applicable Product Annex; and (ii) the new Ship Date is within ninety (90) days of the original Ship Date. However, each Order may only be rescheduled once. Company shall reimburse Nortel for any storage fees, insurance and demurrage costs incurred with respect to such rescheduled Orders. 5.2 All Products shall be delivered to Company in accordance with Ex Works and risk Risk of loss and damage to Products shall be construed as defined thereinpass to Company upon delivery to the loading dock at the Installation Site or other delivery location specified by Company in an Order. Company shall keep such Products fully insured for the total amount then due Nortel for such Products. Company shall pay transportation charges, including insurance, associated with the shipment of Products; provided however, that however if the parties agree, Nortel shall prepay transportation charges, and insurance for delivery of Products to the Installation Site or other delivery location Site, or other designated receiving point as specified in an Order. The charges therefor therefore shall be invoiced by Nortel and paid by Company to Nortel in accordance with Article 4 above. 5.3 5.2 Good title to Hardware furnished hereunder, free and clear of all liens and encumbrances, shall vest in Company upon full payment to Nortel of the total amount payable by Company for such Hardware and any related Licensed Software or Services ("Total Fee") furnished by Nortel in connection with such Hardware. Prior to payment of the Total Fee for the Products and Services in an Ordersuch Product, Company shall not sell or lease the Hardware, or allow any liens or encumbrances to attach to the Hardware or Licensed Software, or remove the Hardware or Licensed Software from the Installation Site without the prior written consent of Nortel, such consent not to be unreasonably withheld. 5.4 5.3 If Company notifies Nortel prior to a Ship Shipment Date that Company does not wish to receive such Products on the Ship Shipment Date, or the Installation Site or other delivery location is not prepared in sufficient time for Nortel to make delivery in accordance with such date, or Company fails to take delivery of any portion of the Products in an Order when shippedsuch Products, Nortel may place the applicable Products in storage. In that event, Company shall be liable for all additional costs thereby incurred by Nortel. Delivery by Nortel of any Products to a storage location as provided above shall be deemed to constitute delivery of the Products to Company for purposes of this Agreement, including, without limitation, provisions for payment, invoicing, passage of risk of loss, and commencement of the warranty period. 5.5 Until the Total Fee is paid, 5.4 Company grants to Nortel and/or its agents a purchase money security interest in the Products in an Order Hardware and their its proceeds or such other similar protection as may be available in the applicable jurisdiction. Until the Total Fee has been paid to Nortel, Company shall cooperate with Nortel in preserving and perfecting Nortel's purchase money security interest in the Products and Company shall promptly (ia) execute and deliver to Nortel such financing statements as Nortel may require and (iib) execute and deliver to Nortel such other agreements, documents and instruments as Nortel may require to perfect and maintain the validity, effectiveness and priority of the security interest created or intended to be created by this Agreement. Company authorizes Nortel to file one or more financing or continuation statements and amendments thereto, relating to all or any part of the Products in an Order without signature of the Company where permitted by law. A carbon, photographic or other reproduction of this Agreement or of any financing statement covering the Products or any part thereof shall be sufficient as a financing statement and may be filed as a financing statement. Company shall not sell, lease or otherwise transfer the Products or any portion thereof, except to Company Affiliates only, or allow any liens or encumbrances to attach to such Products or any portion thereof prior to payment in full of the Total Fee. Company Affiliates shall not sell, lease or otherwise transfer the Products or any portion thereof or allow any liens or encumbrances to attach to such Products or any portion thereof prior to payment in full of the Total Fee. 5.6.1 Company shall provide Nortel or its subcontractors with access to its Installation Sites or other Company facilities during the times specified by Nortel and as are reasonably necessary for Nortel to perform its obligations hereunder. Nortel shall comply with Company's reasonable site and security regulations of which Nortel is informed by Company. 5.6.2 All sites at which the Products shall be delivered or installed shall be prepared by Company in accordance with Nortel's standards, including, without limitation, environmental requirements. Prior to and during installation, Company shall ensure the timely and adequate delivery, installation and functioning of the electrical and communications connections and other environmental requirements, including but not limited to, HVAC systems, specified in Nortel's instructions, Specifications, Documentation or in a Product Annex. 5.6.3 Company shall provide reasonable working space and facilities, including heat, light, ventilation, telephones, electrical current, waste removal and other necessary utilities, for use by Nortel personnel performing installation or other Services, and adequate secure storage space, if required by Nortel, for Products and materials. Company shall also provide adequate security against theft, damage or other loss for the Products while on Company's Installation Site or other delivery location specified by Company. 5.6.4 Company shall obtain all necessary governmental permits applicable to Company in connection with the installation, operation, and maintenance of Products furnished hereunder, excluding any applicable permits required in the normal course of Nortel's doing business. Any information which Nortel reasonably requests from Company and which is necessary for Nortel to properly install or maintain the Products shall be provided by Company to Nortel in a timely fashion and in a form reasonably specified by Nortel.

Shipment, Title and Risk of Loss. Agreement No. FT19901M 5.1 Prior to the Ship Date, Company FiberNet shall have the right to reschedule any pending Orders; Orders provided that (i) a minimum period of notice prior to such Ship Date is given to Nortel Networks by Company FiberNet in accordance with the applicable Product Annex; and (ii) the new Ship Date is within ninety (90) days of the original Ship Date. However, each Order may only be rescheduled once. Company Nortel Networks shall reimburse Nortel be responsible for any storage fees, insurance and demurrage costs incurred with respect to such rescheduled Orders. 5.2 All Products shall be delivered to Company in accordance with Ex Works and risk Risk of loss and damage to Products shall be construed as defined thereinpass to FiberNet upon delivery to the loading dock at the Installation Site or other delivery location specified by FiberNet in an Order. Company FiberNet shall keep such Products fully insured for the total amount then due Nortel Networks for such Products. Company FiberNet shall pay transportation charges, including insurance, associated with the shipment of Products; provided however, that however if the parties agree, Nortel Networks shall prepay transportation charges, and insurance for delivery of Products to the Installation Site or other delivery location or other designated receiving point as specified in an Order. The charges therefor therefore shall be invoiced by Nortel Networks and paid by Company FiberNet to Nortel Networks in accordance with Article 4 above. 5.3 Good title to Hardware furnished hereunder, free and clear of all liens and encumbrances, shall vest in Company FiberNet upon full payment to Nortel Networks of the total amount payable by Company FiberNet for such Hardware and any related Licensed Software or Services ("Total Fee") furnished by Nortel Networks in connection with such Hardware. Prior Except as provided in Section 15.4.3 prior to payment of the Total Fee for the Products and Services in an Order, Company FiberNet shall not sell or lease the Hardware, or allow any liens or encumbrances to attach to the Hardware or Software, or remove the Hardware or Software from the Installation Site without the prior written consent of NortelNortel Networks, such consent not to be unreasonably withheld. 5.4 If Company Except as set forth in Article 5.1, if FiberNet notifies Nortel Networks prior to a Ship Date that Company FiberNet does not wish to receive such Products on the Ship Date, or the Installation Site or other delivery location is not prepared in sufficient time for Nortel Networks to make delivery in accordance with such date, or Company FiberNet fails to take delivery of any portion of the Products in an Order when shipped, Nortel Networks may place the applicable Products in storage. In that event, Company FiberNet shall be liable for all additional actual costs (including storage costs), which additional costs Nortel Networks shall use reasonable efforts to mitigate, thereby incurred by NortelNortel Networks; however, if such costs are incurred solely due to the fault or negligence of Nortel Networks, they shall be Nortel Networks' responsibility. Delivery by Nortel Networks of any Products to a storage location as provided above shall be deemed to constitute delivery of the Products to Company FiberNet for purposes of this Agreement, including, without limitation, provisions for payment, invoicing, passage of risk of loss, and commencement of the warranty period. 5.5 Until the Total Fee is paid, Company FiberNet grants to Nortel and/or its agents Networks a purchase money security interest in the Products in an Order and their proceeds or such other similar protection as may be available in the applicable jurisdiction. Company FiberNet shall cooperate with Nortel Networks in preserving and perfecting Nortel's Nortel Networks' security interest in the Products and Company FiberNet shall promptly (i) execute and deliver to Nortel Networks such financing statements as Nortel Networks may require reasonably require; and (ii) execute and deliver to Nortel Networks such other agreements, documents and instruments as Nortel Networks may reasonably require to perfect and maintain the validity, effectiveness and priority of the security interest created or intended to be created by this Agreement. Company FiberNet authorizes Nortel Networks to file one or more financing or continuation statements and amendments thereto, relating to all or any part of the Products in an Order without signature of the Company FiberNet where permitted by law. A carbon, photographic or other reproduction of this Agreement or of any financing statement covering the Products or any part thereof shall be sufficient as a financing statement and may be filed as a financing statement. Company shall not sell, lease or otherwise transfer the Products or any portion thereof, except to Company Affiliates only, or allow any liens or encumbrances to attach to such Products or any portion thereof prior to payment in full of the Total Fee. Company Affiliates shall not sell, lease or otherwise transfer the Products or any portion thereof or allow any liens or encumbrances to attach to such Products or any portion thereof prior to payment in full of the Total Fee. 5.6.1 Company shall provide Nortel or its subcontractors with access to its Installation Sites or other Company facilities during the times specified by Nortel and as are reasonably necessary for Nortel to perform its obligations hereunder. Nortel shall comply with Company's reasonable site and security regulations of which Nortel is informed by Company. 5.6.2 All sites at which the Products shall be delivered or installed shall be prepared by Company in accordance with Nortel's standards, including, without limitation, environmental requirements. Prior to and during installation, Company shall ensure the timely and adequate delivery, installation and functioning of the electrical and communications connections and other environmental requirements, including but not limited to, HVAC systems, specified in Nortel's instructions, Specifications, Documentation or in a Product Annex. 5.6.3 Company shall provide reasonable working space and facilities, including heat, light, ventilation, telephones, electrical current, waste removal and other necessary utilities, for use by Nortel personnel performing installation or other Services, and adequate secure storage space, if required by Nortel, for Products and materials. Company shall also provide adequate security against theft, damage or other loss for the Products while on Company's Installation Site or other delivery location specified by Company. 5.6.4 Company shall obtain all necessary governmental permits applicable to Company in connection with the installation, operation, and maintenance of Products furnished hereunder, excluding any applicable permits required in the normal course of Nortel's doing business. Any information which Nortel reasonably requests from Company and which is necessary for Nortel to properly install or maintain the Products shall be provided by Company to Nortel in a timely fashion and in a form reasonably specified by Nortel.

Shipment, Title and Risk of Loss. 5.1 Prior to the Ship Date, Company shall have the right to reschedule any pending Orders; provided that (i) a minimum period of notice prior to such Ship Date is given to Nortel by Company in accordance with the applicable Product Annex; and (ii) the new Ship Date is within ninety (90) days of the original Ship Date. However, each Order may only be rescheduled once. Company shall reimburse Nortel for any storage fees, insurance and demurrage costs incurred with respect to such rescheduled Orders. 5.2 All Products shall be delivered to Company in accordance with Ex Works and risk Risk of loss and damage to Products shall be construed as defined thereinpass to Company upon delivery to the loading dock at the Installation Site or other delivery location specified by Company in an Order. Company shall keep such Products fully insured for the total amount then due Nortel for such Products. Company shall pay transportation charges, including insurance, associated with the shipment of Products; provided however, that if the parties agree, Nortel shall prepay transportation charges, and insurance for delivery of Products to the Installation Site or other delivery location or other designated receiving point as specified in an Order. The charges therefor shall be invoiced by Nortel and paid by Company to Nortel in accordance accordance, with Article 4 above. 5.3 Good title to Hardware furnished hereunder, free and clear of all liens and encumbrances, shall vest in Company upon full payment to Nortel of the total amount payable by Company for such Hardware and any related Licensed Software or Services ("Total Fee") furnished by Nortel in connection with such Hardware. Prior to payment of the Total Fee for the Products and Services in an Order, Company shall not sell or lease the Hardware, or allow any liens or encumbrances to attach to the Hardware or Software, or remove the Hardware or Software from the Installation Site without the prior written consent of Nortel, such consent not to be unreasonably withheld. 5.4 If Company notifies Nortel prior to a Ship Date that Company does not wish to receive such Products Product on the Ship Date, or the Installation Site or other delivery location is not prepared in sufficient time for Nortel to make delivery in accordance with such date, or Company fails to take delivery of any portion of the Products in an Order when shipped, Nortel may place the applicable Products in storage. In that event, Company shall be liable for all additional costs thereby incurred by Nortel. Delivery by Nortel of any Products to a storage location as provided above shall be deemed to constitute delivery of the Products to Company for purposes of this Agreement, including, without limitation, provisions for payment, invoicing, passage of risk of loss, and commencement of the warranty period. 5.5 Until the Total Fee is paid, Company grants to Nortel and/or its agents a purchase money security interest in the Products in an Order and their proceeds or such other similar protection as may be available in the applicable jurisdiction. Company shall cooperate with Nortel in preserving and perfecting Nortel's security interest in the Products and Company shall promptly (i) execute and deliver to Nortel such financing statements as Nortel may require require; and (ii) execute and deliver to Nortel such other agreements, documents and instruments as Nortel may require to perfect and maintain the validity, effectiveness and priority of the security interest created or intended to be created by this Agreement. . 5.5.1 Company authorizes Nortel to file one or more financing or continuation statements and amendments thereto, relating to all or any part of the Products in an Order without signature of the Company where permitted by law. A carbon, photographic or other reproduction of this Agreement or of any financing statement covering the Products or any part thereof shall be sufficient as a financing statement and may be filed as a financing statement. Company shall not sell, lease or otherwise transfer the Products or any portion thereof, except to Company Affiliates only, or allow any liens or encumbrances to attach to such Products or any portion thereof prior to payment in full of the Total Fee. Company Affiliates shall not sell, lease or otherwise transfer the Products or any portion thereof or allow any liens or encumbrances to attach to such Products or any portion thereof prior to payment in full of the Total Fee. 5.6.1 5.6 Company shall provide Nortel or its subcontractors with access to its Installation Sites or other Company facilities during the times specified by Nortel and as are reasonably necessary for Nortel to perform its obligations hereunder. Nortel shall comply with Company's reasonable site and security regulations of which Nortel is informed by Company. 5.6.2 5.6.1 All sites at which the Products shall be delivered or installed shall be prepared by Company in accordance with Nortel's standards, including, without limitation, environmental requirements. Prior to and during installation, Company shall ensure the timely and adequate delivery, installation and functioning of the electrical and communications connections and other environmental requirements, including but not limited to, HVAC systems, specified in Nortel's instructions, Specifications, Documentation or in a Product Annex. 5.6.3 5.6.2 Company shall provide reasonable working space and facilities, including heat, light, ventilation, telephones, electrical current, waste removal and other necessary utilities, for use by Nortel personnel performing installation or other Services, and adequate secure storage space, if required by Nortel, for Products and materials. Company shall also provide adequate security against theft, damage or other loss for the Products while on Company's Installation Site or other delivery location specified by Company. 5.6.4 5.6.3 Company shall obtain all necessary governmental permits applicable to Company in connection with the installation, operation, and maintenance of Products furnished hereunder, excluding any applicable permits required in the normal course of Nortel's doing business. Any information which Nortel reasonably requests from Company and which is necessary for Nortel to properly install or maintain the Products shall be provided by Company to Nortel in a timely fashion and in a form reasonably specified by Nortel.