EXHIBIT 10.19
SERVICES AGREEMENT
THIS AGREEMENT is entered into by and between Pinnacle Towers Inc.
("Contractor") and Pinnacle Towers Inc. II ("Customer"), and is effective as of
________________, 1998 (the "Effective Date").
W I T N E S S E T H
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WHEREAS, Customer desires for Contractor to provide Customer with certain
Services as requested by Customer; and
WHEREAS, Customer is willing to provide such services;
NOW, THEREFORE, in consideration of the representations and agreements
contained herein, the parties hereby agree as follows:
SCOPE OF SERVICES
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TOWERS/SITES COVERED UNDER THE AGREEMENT. With respect to each
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telecommunication towers listed on Exhibit D. Contractor will provide
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certain services as more particularly described in the Description of
Services attached hereto as Exhibit A (hereinafter referred to as
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"Services"). Exhibit D may be amended from time to time upon written
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notice from Contractor to Customer to include each telecommunication
tower purchased by Customer from Contractor or one of Contractor's
affiliates, unless Contractor elects not to include one or more such
towers on Exhibit D.
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BILLING AND PAYMENTS
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BILLING. Contractor will xxxx Customer for Services, at such
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intervals as Contractor may reasonably designate, according to the
Compensation Schedule attached hereto as Exhibit B. If Contractor
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decides to change the frequency of billing, Contractor will give
notice of such change to Customer 45 days before the change is
effective.
PAYMENTS. Within 30 days after receipt of a xxxx from Contractor,
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Customer will pay such xxxx in full. Contractor may charge a service
charge of 1.5% per month or the maximum legal interest rate, whichever
is less, for any overdue amount.
PERFORMANCE OF SERVICES
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INDEPENDENT CONTRACTOR. Contractor is an independent contractor in
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the performance of this Agreement. All persons furnished, used,
retained or hired by or on behalf of contractor in the performance of
the Services will be considered to be the employees or agents of
Contractor.
LIMITED WARRANTY.
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EXPRESS WARRANTY. Contractor warrants that all services performed by
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Contractor under this Agreement will be performed in a professional
and workmanlike manner.
EXCLUSIVE REMEDY. Customer's sole and exclusive remedy for breach of
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the warranty set forth in Section 4.1 or for any other defect in the
Services shall be to request, within thirty (30) days following
performance of the particular defective Service, correction or
reperformance of such Service. If Customer makes such a request,
Contractor will promptly correct or reperform without charge any
Service found actually to be defective.
LIMITATION OF LIABILITY.
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LIMITATION OF DAMAGES. CONTRACTOR WILL NOT BE LIABLE TO
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CUSTOMER,WHETHER IN CONTRACT OR IN TORT OR UNDER ANY OTHER LEGAL
THEORY, INCLUDING NEGLIGENCE, FOR ANY INDIRECT, SPECIAL, INCIDENTAL,
CONSEQUENTIAL, PUNITIVE, OR SIMILAR DAMAGES ARISING OUT OF OR IN
CONNECTION WITH THE PERFORMANCE OR NON-PERFORMANCE OF THIS AGREEMENT,
OR FOR ANY CLAIM MADE AGAINST CUSTOMER BY ANY OTHER PARTY, EVEN IF
CONTRACTOR HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH CLAIM.
LIMITATION OF AMOUNT OF DAMAGES. CONTRACTOR'S LIABILITY FOR ANY CLAIM
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ARISING UNDER OR IN CONNECTION WITH THIS AGREEMENT WILL NOT EXCEED THE
AMOUNT OF PAYMENT RECEIVED BY CONTRACTOR PAID BY CUSTOMER FOR THE
SERVICES DURING THE 12 MONTH PERIOD IMMEDIATELY PRECEDING THE TIME
WHEN SUCH CLAIM IS MADE.
ALLOCATIONS OF RISKS. This Agreement allocates fairly between
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Contractor and Customer the risks of errors and omissions in the
Services. This allocation is the result of negotiations between the
parties, is accepted by both parties, and is reflected in the pricing
for the Services, other fees payable, the limited warranties and
remedies provided, the disclaimer of liability for certain damages
including without limitation, indirect, special, incidental,
consequential and punitive damages, and the limitation of liability.
The parties stipulate that, in any proceeding regarding any dispute
under this Agreement, all these provisions should be recognized and
enforced.
SURVIVAL. The provisions of this Section 5 will survive any
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termination or expiration of this Agreement.
TERM AND TERMINATION.
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TERM OF AGREEMENT. This Agreement is effective for an initial term of
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one (1) year commencing on the Effective Date and, unless terminated
as provided herein, will be extended automatically for an indefinite
term.
TERMINATION WITHOUT CAUSE. Either Customer or Contractor may
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terminate this Agreement at any time for its convenience without
charge or liability by giving ninety (90) day written notice of
termination to the other party.
TERMINATION FOR CAUSE. Notwithstanding anything to the contrary
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elsewhere in this Agreement, each party, by written notice to the
other, may terminate this Agreement or suspend its further performance
without terminating this Agreement if the other party:
terminates or suspends doing business; becomes subject to any
bankruptcy or insolvency proceeding under federal or state law (unless
removed or dismissed within 60 days from filing therefore), becomes
insolvent, becomes subject to direct control of a trustee, receiver or
similar authority, or makes an assignment for the benefit of
creditors; or;
materially breaches any obligation under this Agreement and has not
cured such breach (or, if the breach is such that the cure would take
longer period, commenced to cure and proceeded diligently therewith)
within 30 days of receiving written notice from the terminating party
specifying such breach or failure.
OBLIGATIONS UPON TERMINATION Upon termination, Customer will pay
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Contractor promptly for all Services performed prior to termination.
INDEMNITY. Customer will indemnify Contractor, its affiliates and
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their respective employees, officers, agents and directors from and
against all injuries, losses, damages, costs, expenses and other
liabilities, including without limitation, attorney's fees and
expenses of litigation, which may arise out of, result from or be
connected with any Hazardous Substances, Environmental Conditions
and/or any other related circumstances, activity, and/or incident.
SURVIVAL. The provisions of this Section 7 shall survive any
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termination or expiration of this Agreement.
MISCELLANEOUS.
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EXCUSABLE DELAYS. Except with respect to Customer's obligation to pay
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for Services promptly, neither party will be deemed to be in default
of any provisions of this Agreement or liable for delays in
performance resulting from acts or events beyond the reasonable
control of such party. Such acts or events include, without
limitation, acts of God, civil or military authority, civil
disturbance, war, strikes, fires, other catastrophes, or other events
beyond a party's reasonable control.
INCORPORATION OF EXHIBITS. The Exhibits referenced in and attached to
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this Agreement will be deemed an integral part hereof to the same
extent as if written at length herein.
NOTICES. All notices permitted or required to be given under this
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Agreement will be in writing and will be deemed duly given upon
personal delivery or transmission by facsimile machine to the address
or facsimile numbers set forth below or to such other address or
facsimile number as the receiving party may have designated by 10 days
prior written notice given in accordance with this provision.
IF TO CONTRACTOR: IF TO CUSTOMER:
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PINNACLE TOWERS INC. PINNACLE TOWERS INC. II
0000 XXXXXXXX XXXX., 3/RD/ FLOOR 0000 XXXXXXXX XXXX., 0/XX /XXXXX
XXXXXXXX, XX. 00000 XXXXXXXX, XX. 00000
ATTENTION: ______________________ ATTENTION:_________________________
FACSIMILE NO.:___________________ FACSIMILE NO.:_____________________
AMENDMENT. Except as specified in Section 1 and in Exhibit B, this
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Agreement may be modified only by Amendment executed in writing by a
duly authorized representative for each party.
ASSIGNMENT. Neither Customer nor Contractor may assign this Agreement
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in whole or in part without the prior written consent of the other,
except that Contractor may assign this Agreement and all rights and
obligations hereunder to a successor in interest or any present of
future affiliate of Contractor, upon which Assignment by Contractor or
Customer will release Contractor from any liability or obligation
under this Agreement.
SEVERABILITY. If any provision of this Agreement is held by a court
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of competent jurisdiction to be contrary to law, the remaining
provisions of this Agreement will remain in full force and effect.
GOVERNING LAW. This Agreement is governed by and will be construed in
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accordance with the Laws of the State of Delaware, United States of
America.
ENTIRE AGREEMENT. This Agreement contains the entire agreement of the
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parties concerning the Services and there are no oral or written
representations, understandings or agreements between the parties
respecting the subject matter of this Agreement which are not fully
expressed herein.
IN WITNESS WHEREOF, each party has caused this Agreement to be executed in
duplicate originals by its duly authorized representative on the respective
dates entered below.
Pinnacle Towers Inc. Pinnacle Towers Inc. II
By: _______________________________ By:________________________________
Print Name: ________________________ Print Name:________________________
Title:______________________________ Title: ____________________________
