EXHIBIT 67
LEASE AND SERVICES AGREEMENT
PARTICULARS
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1 DATE
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2 CUSTOMER Name: NaviSite Europe Limited
Company Number: 02329182
Registered Office: The Old Coroners Court,
0 Xxxxxx Xxxxxx, Xxxxxxx, Xxxxxxxxx XX0 0XX
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3 GUARANTOR Name: NaviSite Inc
Federal ID Number: 00-000-0000
Registered Office: Xxxxxxxxx Xxxx, Xxxxxxx,
XX, 00000, XXX
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4 TERM 7 years from (and including) the
Commencement Date
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5 COMMENCEMENT DATE 1 April 2003
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6 AREA COMPRISED IN THE LOCATION 4,022 square feet
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7 RENT TWO HUNDRED AND EIGHTY ONE
THOUSAND AND FIVE POUNDS AND FORTY FOUR
XXXXX ((pound)281,005.44) per annum
subject to increase in accordance with
Clause 5.2
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8 NUMBER OF CAR PARKING SPACES 5
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9 MAXIMUM LOAD 450 xxxxx per square metre of the Location
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10 ELECTRICITY FEE PAYABLE Yes in accordance with clause 6.13
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11 RATES PAYABLE Yes in accordance with clause 6.14
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12 UPS COSTS PAYABLE Yes in accordance with clause 6.15
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EXECUTED as a DEED by
Global Switch
acting by:
Director
Director/Secretary
EXECUTED as a DEED by
the Tenant
acting by:
/s/ [ILLEGIBLE]
Director
/s/ [ILLEGIBLE]
Director/Secretary
EXECUTED as a DEED by
the Guarantor
acting by:
/s/ XXXXXXX XXXXX
Director
/s/ XXXXXX XXXXXX
Director/Secretary
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THESE TERMS AND CONDITIONS are agreed on the date stated in the Particulars
between:
GLOBAL SWITCH (LONDON) LIMITED (Company Number 03698210) whose registered office
is at 000 Xxxx Xxxxxx, Xxxxxx XX0 0XX ("GLOBAL SWITCH");
TENANT whose details are set out in the Particulars; and
GUARANTOR whose details are set out in the Particulars
1 DEFINITIONS AND INTERPRETATION
1.1 In this Agreement:
"ADMINISTRATION FEE" has the meaning given to that expression in Clause
6.13;
"BUILDING INDEX" means the Building Cost Information Services Limited
All-in Tender Price Index or where such index ceases to exist such
other index as may be agreed or determined most accurately to reflect
any variation in the value of the building costs for the area in which
the Building is situated;
"CABLE MANAGEMENT GUIDE" means the Cable Management and Compliance
Guide attached to this Agreement and as it is amended from time to time
by Global Switch (acting reasonably) and such amendments are notified
in writing to the Tenant;
"COOLING OUTAGE" means the average temperature (measured from the
re-circulation air conditioning units in the Location) of the room
temperature sensors in the Location either:
(a) exceeds 28 degrees Celsius for more than 60 consecutive
minutes; or
(b) falls below 16 degrees Celsius for more than 60 consecutive
minutes;
provided the average heat output caused by the Equipment is less than
or equal to the Maximum Load;
"COMMENCEMENT DATE" means the date set out in the Particulars from
which date Global Switch will commence the provision of the Services;
"COMMON AREAS" means all parts of the Facility from time to time
provided for the common use of more than one of the occupiers of the
Facility and their visitors including (without limitation) vehicular
and pedestrian accesses passages corridors stairways circulation areas
lifts escalators loading bays fire escapes toilet facilities meeting
rooms canteens kitchen areas reception areas lobby areas storage areas
refuse collection and disposal areas and parking areas;
"EQUIPMENT" means the telecommunications and other equipment and
apparatus from time to time installed in the Location by the Tenant;
"FACILITY" means East India Dock House, 240 East India Xxxx Xxxx,
Xxxxxx X00 0XX;
"FACILITY MANAGER" has the meaning ascribed to it in paragraph 18 of
the Schedule;
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"FORCE MAJEURE" means any event outside the reasonable control of a
party affecting its ability to perform any of its obligations (other
than payment) under this Agreement;
"GROUP COMPANY" means any company which is for the time being a
subsidiary or holding company or subsidiary of the holding company of
the Tenant within the meaning of Section 736 of the Companies Xxx 0000
as amended by the Companies Xxx 0000;
"HUMIDITY OUTAGE" means the average humidity (measured from the
re-circulation air conditioning units in the Location) of the room
humidity sensors in the Location is either:
(a) higher than a value corresponding with a relative humidity of
70% for more than 60 consecutive minutes; or
(b) lower than a value corresponding with a relative humidity of
30% for more than 60 consecutive minutes;
"INSURED RISKS" means (to the extent that insurance against such risks
may ordinarily be arranged with an insurer of good repute) such risks
or insurance as may from time to time be reasonably required by Global
Switch;
"LOCATION" means such part of the Facility comprising the area set out
in the Particulars and shown for the purposes of identification only
edged blue on the plan attached to this Agreement including (for the
avoidance of doubt):
(a) all Service Media exclusively serving the Location up to the
point of connection with the common or public system;
(b) all Global Switch's fixtures and fittings from time to time in
the Location;
(c) all improvements alterations and additions;
(d) the floors (but not the floor slabs) screed plaster and other
finishes coverings and carpets on the floors;
(e) the interior finishes (including the plaster paint paper or
any other coverings) from the upper side of the floor slab
immediately below the Location to the underside of the floor
or roof slab immediately above the Location (but including any
voids between the false ceilings and the ceiling slab above
the Location and any voids between any suspended floor and the
floor slab below the Location;
(f) all non load bearing walls and columns wholly within the
Location and the interior one half (including the finishes
thereon) of the thickness of such walls dividing the Location
from any other parts of the Facility;
(g) all internal doors and windows and their frames glass and
fitments;
but excluding:
(h) the main structure of the Facility;
(i) all Service Media within the Location serving any other part
of the Facility;
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(j) all tenant's and trade fixtures and fittings; and
(k) all external doors and windows and their frames glass and
fitments
or such other part or parts of the Facility as Global Switch shall from
time to time designate pursuant to Clause 3.1;
"MAXIMUM LOAD" means the maximum heat output of the Equipment stated as
such in the Particulars;
"MEET-ME ROOM[s]" means those parts of the Facility which are shown
edged [blue] on the plan[s] attached to this Agreement or such other
part or parts of the Facility as Global Switch shall designate as such
and notify in writing to the Tenant;
"PARTICULARS" means the Lease and Services Agreement Particulars
forming part of this Agreement;
"PAYMENT DATES" means 1 January, 1 April, 1 July and 1 October in each
year of the Term;
"POWER OUTAGE" means the voltage level of all of the outgoing circuit
terminals, between each phase and the neutral conductor of a power
distribution unit providing electrical power supply to the Equipment in
the Location is nil;
"QUALIFYING OUTAGE" means the occurrence of a Cooling Outage or a
Humidity Outage or a Power Outage;
"RENT" means the annual fee stated in the Particulars payable in
respect of the lease by the Tenant of the Location and its use of car
parking spaces pursuant to Clause 2.1 and the provision of the
Services;
"SERVICES" means the services to be provided by Global Switch pursuant
to this Agreement as described in the Schedule together with any
additional services which Global Switch agrees to provide for the
Tenant pursuant to clause 7.1
"SERVICE INTERRUPTION" means the unavailability of a Service with the
consequence that the Tenant's business at the Location is or may be
materially prejudiced or damaged;
"SERVICE MEDIA" means sewers drains pipes wires cables conduits fibre
optical fibre cable and other conducting media;
"SPECIFICATION" means the specification attached to this Agreement;
"TERM" means the term of this Agreement set out in the Particulars;
"WORKING DAY" means any day from Monday to Friday (inclusive) which is
not Christmas Day, Good Friday or a statutory bank holiday
1.2 The Particulars form part of this Agreement but the headings to clauses
are inserted for convenience only and shall not affect the
interpretation or construction of this Agreement.
1.3 Words importing the singular shall include the plural and vice versa.
Words importing a gender include every gender and references to persons
include an individual,
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company, corporation, firm or partnership.
1.4 All sums payable hereunder are exclusive of VAT or any other applicable
tax or duty payable upon such sums that shall be added if appropriate
at the rate prevailing at the relevant tax point.
1.5 The words and phrases "other", "including" and "in particular" shall
not limit the generality of any preceding words or be construed as
being limited to the same class as any preceding words where a wider
construction is possible.
1.6 Any obligation to do or not to do something shall include an obligation
to procure that it be done or not done.
2 OCCUPATION
2.1 Global Switch hereby demises the Location to the Tenant at the Rent
with effect from the Commencement Date for the duration of the Term
together with the right:
(a) (subject to Clause 3) to install and retain the Equipment in
the Location;
(b) to use the number of car parking spaces set out in the
Particulars in such place or places as Global Switch shall
from time to time designate and notify to the Tenant on not
less than 10 Working Days' prior written notice; and
(c) to connect into the Service Media which are now or at any time
during the Term in the Facility and which serve the Location
and then to the free passage and running of services or
supplies to and from the Location through those Service Media;
(d) (subject to Global Switch's prior approval) to install fibre
optical fibre cable in the ducts and xxxxxxxx in such of the
Common Areas as Global Switch shall specify and along routes
which Global Switch shall approve provided always that the
Tenant complies with the Cable Management Guide;
(e) to pass and xxxxxx at all times over the Common Areas;
(f) (to the extent that Global Switch is entitled to grant such
right) to pass and xxxxxx at all times over the roads and
footpaths of the estate in which the Facility is situated to
gain access to and egress from the Facility to and from the
public highway; and
(g) of escape in emergency over the dedicated fire escapes within
the Common Areas
but excepting and reserving to Global Switch the right on not less than
10 Working Days' advance notice in writing to the Tenant to enter the
Location at all times for the purpose of laying and thereafter
maintaining the Service Media situated in the voids within the Location
but only where is would otherwise be impracticable to lay and maintain
them without such entry, Global Switch causing no damage or destruction
to the Location and no interruption to the Tenant's business carried on
at the Location, together with the right to free passage and running of
services or supplies to and from the remainder of the Facility through
such Service Media, and a right of emergency escape through the
Location;
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2.2 Global Switch reserves the right to refuse to access to the Facility or
remove from the Facility any employees and sub-contractors of the
Tenant whose admission or presence is or would be in the reasonable
opinion of Global Switch detrimental to the security of the Facility or
in respect of whom the Tenant has failed to request a right of access
from Global Switch and Global Switch will not be responsible for the
consequences of any such refusal or failure or delay by the Tenant in
notifying it of its access requirements;
2.3 The Tenant accepts that Global Switch shall be entitled to disconnect
or physically terminate or detach or remove cables or other Service
Media laid by the Tenant in breach of this Agreement and in particular
in breach of Clause 2.1(d).
3 RELOCATION OF THE EQUIPMENT
3.1 Subject to Clause 3.3, Global Switch shall have the right exercisable
on not less than six month's written notice to the Tenant during the
Term to require the Equipment to be moved from the Location or any
other part or parts of the Facility where the Equipment is then located
and to be installed in some other part of the Facility (the "NEW
LOCATION"). All costs and expenses incurred in connection with such
relocation of the Equipment shall be borne by Global Switch.
3.2 Upon expiry of a notice served under Clause 3.1, this Agreement shall
determine (but without prejudice to the rights of either party in
respect of any antecedent breach of this Agreement by the other) and
the Tenant shall:
(a) hand back the Location to Global Switch in accordance with the
provisions of this Agreement; and
(b) deliver to Global Switch the original part of this Agreement;
and
(c) enter into a new agreement on the terms of this Agreement
(mutatis mutandis) in respect of the New Location for a term
expiring on the contractual expiry date of this Agreement.
3.3 Without prejudice to the rights of Global Switch pursuant to Clause
3.1, Global Switch agrees that, in specifying the time-scale for any
relocation of the Equipment, Global Switch shall use all reasonable
endeavours to consult with the Tenant and to specify a time-scale that
causes minimum disruption to the operation of the Equipment and Global
Switch agrees that it shall not exercise the rights set out in Clause
3.1 except for bona fide purposes connected to the good management of
the Building.
4 INSPECTION
4.1 Global Switch may on not less than 5 Working Days' notice to the
Tenant, except in emergency, enter the Location at any time with or
without workmen and, if so reasonably required by the Tenant,
accompanied by a representative of the Tenant to take a plan of and to
view the state and condition of the Location and if any defects
disrepair or unauthorised alterations are found for which the Tenant is
liable the Tenant will within three months after written notice (or
immediately in case of emergency) repair and make good the Location to
Global Switch's reasonable satisfaction and in case of default Global
Switch its agents or contractors may enter the Location to carry out
all necessary works and the Tenant shall repay the costs of those works
to Global Switch on demand.
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4.2 In exercising the rights of entry granted by Clause 4.1 Global Switch
will cause as little interference as is reasonably possible with the
Equipment and will cause as little damage as possible to the Location
and will promptly make good any damage caused to the Location to the
Tenant's reasonable satisfaction.
5 Fees AND PAYMENT TERMS
5.1 The Tenant undertakes to pay Global Switch the Rent without deduction
or set-off, such Rent to be payable in four equal instalments quarterly
in advance on the Payment Dates, provided that the first instalment
shall comprise an appropriate proportion of the Rent calculated with
effect from the Commencement Date until the end of the then current
quarter to be payable on the date of this Agreement.
5.2 The Tenant undertakes to pay Global Switch the Administration Fee
within 10 Working Days of written demand.
5.3 The Rent shall upon each anniversary of the Commencement Date increase
by 3%.
5.4 If any sum due under this Agreement is not paid within 5 Working Days
of the due date then (without prejudice to Global Switch's other rights
and remedies) Global Switch reserves the right to charge interest on
such sum on a daily basis (after as well as before judgement) from the
due date to the date of payment at the rate of 3% above the base rate
from time to time of Lloyds TSB Bank plc or (if such base rate shall be
unascertainable) of such other bank as Global Switch may nominate from
time to time).
6 TENANT'S OBLIGATIONS
The Tenant shall be responsible for the consequences of any use of the
Equipment and agrees with Global Switch:
6.1 To keep the Location in good and substantial repair and condition and
to the extent necessary to comply with such obligation reinstate
rebuild or (where beyond economic repair) renew each part of it.
6.2 To maintain the Equipment in good working order in accordance with the
manufacturers' guidelines for the use operation and maintenance of the
same and to procure that the Location is kept tidy and safe at all
times.
6.3 To comply with the requirements of Global Switch's reasonable technical
and installation standards in respect of the Facility and Global
Switch's reasonable electrical power management procedures and the
Cable Management Guide as are notified to the Tenant in advance and in
writing from time to time and ensure that (without limitation):
(a) no installation or modification alteration or addition to the
Equipment would result in increases to the floor loading or
environmental conditions of the Equipment above the levels
specified by Global Switch's technical and installation
standards in respect of the Facility;
(b) no overloading to the electrical power supply system occurs;
and
(c) the maximum heat output of the Equipment does not exceed the
Maximum Load;
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and the Customer shall supply to Global Switch a monthly report
recording measured data summarising the electrical load to the
electrical power supply system and the heat output of the Equipment;
6.4 To comply with the requirements of
(a) any statutes, regulations and codes of practice applicable to
the Facility or its use; and
(b) the reasonable health and safety instructions and such
reasonable rules and regulations issued in writing to the
Tenant by Global Switch from time to time in respect of the
Facility or its use.
6.5 Not to use the Location except for the retention and operation of the
Equipment with ancillary office use nor cause any injury, damage or
nuisance to or, interference with any person or property including
(without limitation) the Facility and/or any equipment owned by third
parties which may from time to time be located in the Facility.
6.6 Not actively to compete with the business of Global Switch carried out
in and from the Meet-Me Room[s] nor solicit the custom or business of
Global Switch's Tenants in the Meet-Me Room[s].
6.7 To comply with the reasonable directions of Global Switch in the event
that interference occurs between the Equipment and the equipment of any
third party in the Facility (where that interference is not caused by
that third party) provided that Global Switch will use its reasonable
endeavours to ensure that any such directions do not have an adverse
effect on the Equipment.
6.8 Not to make:
(a) any structural alteration or addition whatsoever in on or to
the Location; or
(b) any non-structural alteration or addition whatsoever in on or
to the Location without the prior written consent of Global
Switch (such consent not to be unreasonably withheld or
delayed).
6.9 To maintain an up-to-date, complete and accurate inventory of the
Equipment and continue to provide Global Switch with full and updated
details of the inventory.
6.10 To ensure that the Equipment is clearly identified as belonging to the
Tenant.
6.11 Subject to Clause 10.3 to indemnify Global Switch against all costs,
claims, demands, losses, damages, expenses and liabilities of
whatsoever nature (including without limitation reasonable legal fees)
suffered or incurred (directly or indirectly) by Global Switch in
connection with any claim that the use or possession of the Equipment
or any computer programs used in connection with the Equipment
infringes the intellectual property rights (including without
limitation any patent, copyright, design right, registered design,
trade xxxx or service xxxx) of any third party or causes interference
with the equipment of any third party.
6.12 To be responsible for the payment directly to the relevant carriers or
suppliers of all fees and charges payable in relation to the ordering
and/or installation and/or rental and use of communications circuits
from public telecommunications carriers or
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suppliers and in relation to the provision of maintenance and support
services other than those provided by Global Switch as part of the
Services.
6.13 To be responsible for the payment of all fees and charges levied for or
in connection with the provision of an electrical supply to the
Location which supply shall be separately metered and the fair
proportion of the electricity used for the cooling of the Location but
the Tenant's responsibility under this Clause 6.13 shall (for the
avoidance of doubt) exclude the supply of electricity to the Common
Areas the cost of which shall be included within the Rent provided that
at no time shall the Tenant be charged by Global Switch a greater unit
cost per kilowatt per hour for electricity than Global Switch is
otherwise charged for the same plus a fixed annual administration fee
of 5% per annum of that charge (the "ADMINISTRATION FEE").
6.14 To pay the rates and any other occupational taxes or charges levied by
any authority due in respect of the Location unless that is included as
one of the Services.
6.15 To pay on demand a fair proportion of the cost of maintaining an
uninterruptible power supply system for the Location (which proportion
shall be (pound)3,626 for the first year of the Term).
6.16 At the end of the Term or on the earlier termination of this Agreement,
to remove the Equipment from the Location and to make good to Global
Switch's reasonable satisfaction any resultant damage (which, to avoid
doubt, includes the replacement of floor tiles which have been cut to
accommodate the installation of the Equipment) and on demand to pay any
and all reasonable costs incurred by Global Switch arising from the
disconnection and removal of the Equipment.
7 PROVISION OF SERVICES
7.1 Subject to the other provisions of this Agreement and the Tenant paying
the Rent Global Switch hereby agrees with the Tenant to provide the
Services to the Tenant in accordance with this Clause 7, together with
such other additional services requested by the Tenant that Global
Switch agrees (at an additional cost to the Tenant) in writing to
provide.
7.2 Global Switch warrants and undertakes to the Tenant that it shall
perform the Services with reasonable care and skill in a proper and
efficient manner using (where appropriate) suitable materials and
competent staff and in accordance with this Agreement and (where the
Specification prescribes a level of performance to be achieved by the
Services) the Specification but Global Switch does not warrant or
undertake that the Services will cause the Equipment to operate without
fault or interruption save that in carrying out the Services or any
other works to the Facility Global Switch will use its reasonable
endeavours not to interfere with the Equipment.
7.3 Global Switch will use its reasonable endeavours to minimise any
disruption to or interruption in the Services.
7.4 Subject to Clause 7.2, all other conditions, warranties, terms and
undertakings (whether express or implied, statutory or otherwise)
relating to the delivery, performance, quality, occurrence or
reliability of the Equipment or the Services are hereby excluded to the
fullest extent permitted by law.
7.5 (Without prejudice to any other remedy or right of claim on the part of
the Tenant pursuant to this Agreement) except where the same is due to
any act omission or
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default by the Tenant, if a Qualifying Outage occurs:
(a) for a period up to (and including) three (3) hours (from the
time of the occurrence of the Qualifying Outage), then the
Tenant will receive a credit against the Rent of ONE THOUSAND
FIVE HUNDRED POUNDS ((pound)1,500);
(b) for a period between three (3) hours and six (6) hours (from
the time of the occurrence of the Qualifying Outage), then the
Tenant will receive (in addition to any amounts under clause
7.5(a)) a credit against the Rent of TWO THOUSAND FIVE HUNDRED
POUNDS ((pound)2,500);
(c) for a period between six (6) hours and twenty-four (24) hours
(from the time of the occurrence of the Qualifying Outage),
then the Tenant will receive (in addition to any amounts under
clauses 7.4(a) and (b)) a credit against the Rent of FOUR
THOUSAND FIVE HUNDRED POUNDS ((pound)4,500);
(d) for each subsequent period of twenty-four (24) hours, then the
Tenant will receive (in addition to any amounts under clauses
7.5(a), (b) and (c)) a credit against the Rent of EIGHT
THOUSAND POUNDS ((pound)8,000)
but Global Switch shall not be required to allow such credits in
respect of more than four (4) Qualifying Outages (in respect of which
credits have been given on each of four (4) occasions pursuant to
clause 7.4) in any one period of thirty (30) days during the term of
this Agreement and any such credits shall be set off against the Rent
or other amounts due from Customer for the next following Payment Date
(or such longer period if appropriate) or, if no such sums are due,
such credit shall be paid by Global Switch to the Customer within
fourteen (14) days of the expiry or earlier determination of the term
of this Agreement.
8 SERVICE INTERRUPTION NOTIFICATION AND CORRECTION PROCEDURE
8.1 Immediately on becoming aware of a Service Interruption the Tenant
shall contact Global Switch and shall in each case provide the
appropriate information by submitting a completed incident report in
the form attached to this Agreement
8.2 Following notification in accordance with Clause 8.1 or after becoming
aware from another source of a Service Interruption (including
awareness based on monitoring of building control systems within the
Facility) Global Switch shall (in the case of any Service Interruption
save for the unavailability of a Service):
(a) specify to the Tenant an estimated time scale for resumption
of the Service;
(b) use its reasonable endeavours to remedy the Service
Interruption as soon as practicable; and
(c) update the Tenant as necessary until the provision of the
Service is resumed.
8.3 The Tenant shall allow Global Switch free access to the Location at all
times for so long as the Service Interruption persists in order to
inspect and/or test the service and carry out any remedial works but
only where is would otherwise be impracticable to inspect and/or test
the service and carry out any remedial works without such entry and in
exercising the rights of entry granted by this Clause 8.3 Global Switch
will cause as little interference as is reasonably possible with the
Equipment and will make good any damage caused to the Location to the
Tenant's reasonable satisfaction.
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9 PLANNED WORK NOTIFICATION PROCEDURE
9.1 The Tenant acknowledges that Global Switch will from time to time carry
out routine work that will affect the provision of the Services. The
parties agree that provided Global Switch complies with the procedure
set out in Clause 9.2, any disruption to the provision of the Services
by such routine work shall not constitute Service Interruption.
9.2 Global Switch shall give the Tenant at least 10 Working Days' notice in
writing in advance with details of the nature of the routine work to be
carried out, the likely disruption to the Services, the dates and times
for carrying out such work and an estimated time scale for completing
it.
9.3 Global Switch shall consult with and have due regard to any reasonable
suggestions put forward by the Tenant to minimise any inconvenience and
disruption to the Tenant which may be caused by such routine work.
9.4 Global Switch shall use its reasonable endeavours to ensure that the
carrying out of routine work causes as little inconvenience and
disruption to the Tenant as is practicable in the circumstances.
10 LIMITATION OF LIABILITY
10.1 Save as provided by statute the following provisions set out the entire
liability of the parties (including any liability for the acts and
omissions of its employees, agents and sub-contractors) to each other
arising as a result of any breach of its obligations under this
Agreement.
10.2 Neither party (the "FIRST PARTY") shall be liable to the other (the
"SECOND PARTY") for loss of profits, contracts or goodwill or any type
of economic, indirect, consequential or special loss or damage
(including loss or damage suffered by the Tenant as a result of an
action brought by a third party) even if such loss was reasonably
foreseeable. Subject to Clause 10.3, the First Party shall be liable to
the Second Party for direct loss or damage incurred by the Second
Party.
10.3 Subject to Clause 10.2, the entire liability of a party to the other
party under this Agreement in any period of 12 months during the Term
shall not exceed (pound)150,000.
11 INSURANCE
11.1 The Equipment shall at all times be at the Tenant's entire risk and the
Tenant shall be responsible for insuring the Equipment against all
risks (including without limitation, consequential loss and loss of
profits cover) as may be appropriate, taking into account the
provisions of Clause 10.
11.2 If the Location is unfit for occupation and use because of damage by an
Insured Risk then (save to the extent that the payment of the loss of
rent insurance moneys is refused due to the act or default of the
Tenant) the Rent (or a fair proportion according to the nature and
extent of the damage) shall be suspended until the date on which the
Location is again fit for occupation and use and in the event that the
Location shall not be rendered fit for occupation and use within three
years of the date of such damage then either party may while the
Location has not been rendered fit for occupation and use terminate
this Agreement by giving to the other prior written
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notice and such termination shall be without prejudice to any claim in
respect of any prior breach of the obligations contained in this
Agreement.
12 DURATION AND TERMINATION
12.1 This Agreement shall automatically terminate on the expiry of the Term
or (if earlier) by operation of this Clause 12.
12.2 Global Switch may immediately terminate this Agreement without payment
of compensation or other damages caused to the Tenant solely by such
termination by giving notice in writing to the Tenant if any one or
more of the following events happens:
(a) the Tenant commits a material breach of any of its obligations
under this Agreement which is incapable of remedy;
(b) the Tenant fails to remedy, where it is capable of remedy, any
breach of its obligations under this Agreement (save as to
payment) within a reasonable period (having regard to the
nature of the breach) after having been required in writing to
remedy or desist from such breach;
(c) if any sum payable under this Agreement is not paid within
seven days of its due date for payment in accordance with this
Agreement;
(d) the Tenant is deemed to be unable to pay its debts within the
meaning of Section 123 of the Insolvency Xxx 0000, or calls a
meeting for the purpose of passing a resolution to wind it up,
or such a resolution is passed, or a resolution is passed by
the directors of the Tenant to seek a winding up or
administration order, or the Tenant presents, or has
presented, a petition for a winding up order, or presents, or
has presented, a petition to appoint an administrator, or has
an administrative receiver, or receiver appointed over all or
any part of its business, undertaking, property or assets.
12.3 In the event that there are more than four (4) Qualifying Outages in
any one period of thirty (30) days during the term of this Agreement
the Customer may terminate this Agreement by notice in writing to
Global Switch.
12.4 Termination of this Agreement shall be without prejudice to the other
rights and remedies of either party both under this Agreement and at
law.
12.5 Forthwith upon the termination of this Agreement or the expiry of the
Term, any right to use the Equipment in the Location (or elsewhere in
the Facility) in the shall automatically cease and the Tenant shall
make arrangements (at the Tenant's own cost) to promptly remove the
Equipment from the Facility at a time to be agreed with Global Switch
such time to be no later than 10 Working Days following the date of
such termination or expiration and on demand pay any and all reasonable
costs incurred by Global Switch arising directly or indirectly from the
disconnection and removal of the Equipment.
13 CONFIDENTIALITY
13.1 Each party shall keep and procure to be kept secret and confidential
all information belonging to the other party disclosed or obtained as a
result of the relationship of the parties under this Agreement and
shall not use nor disclose the same save for the
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purposes of the proper performance of this Agreement or to the party's
financiers for the purpose of raising finance or with the prior written
consent of the other party.
13.2 Neither party shall disclose the contents of this Agreement to any
third party without the other party's prior written consent (such
consent not to be unreasonably withheld or delayed).
14 FORCE MAJEURE
14.1 If either party is affected by Force Majeure it shall immediately
notify the other party in writing of the matters constituting the Force
Majeure and shall keep that party fully informed of their continuance
and of any relevant change of circumstances whilst such Force Majeure
continues.
14.2 The party affected by Force Majeure shall take all reasonable steps
available to it to minimise the effects of Force Majeure on the
performance of its obligations under this Agreement.
15 ASSIGNMENT AND SUB-CONTRACTORS
15.1 The Tenant shall not be entitled to assign, transfer or otherwise
dispose of the Location in whole or in part or to assign, transfer or
otherwise dispose of any of its rights under this Agreement except as
permitted by this Clause 15;
15.2 The Tenant may:
(a) assign or transfer this Agreement in whole to a Group Company;
or
(b) share or part with the possession or occupation of the whole
or any part of the Location with a Group Company provided that
the occupation by a Group Company shall cease upon it ceasing
to be a Group Company;
(c) grant rights to use parts of the Location or the Equipment to
third parties, provided that:
(i) such third parties will use the Location or the
Equipment in respect of which rights are granted to
it in accordance with the terms of this Agreement
(except for the payment of the Service Fee and other
obligations inapplicable to the part of the Location
in respect of which rights are granted to it);
(ii) such third parties will comply with all security,
health and safety regulations from time to time
applicable to the Facility;
but the Tenant will remain liable to Tenant under the terms of
this Agreement for the observance and performance of its
obligations under this Agreement and the Tenant shall take all
reasonable and lawful steps and proceedings to remedy any
breach of the obligations of its tenants.
15.3 Global Switch shall be entitled to engage sub-contractors to carry out
all or any of the Services, but Global Switch shall remain liable to
the Tenant under the terms of this Agreement for the provision of any
Services by its sub-contractors.
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16 GENERAL
16.1 This Agreement contains the entire agreement and understanding between
the parties in relation to their subject-matter.
16.2 If at any time any part of this Agreement (including any one or more of
the clauses of this Agreement or any sub-clause or paragraph or any
part of one or more of these clauses) is held to be or becomes void or
otherwise unenforceable for any reason under any applicable law, the
same shall be deemed omitted from this Agreement and the validity
and/or enforceability of the remaining provisions of this Agreement
shall not in any way be affected or impaired as a result of that
omission.
17 PROPER LAW AND JURISDICTION
17.1 This Agreement and any disputes arising out of or in relation to this
Agreement shall be governed by and construed in accordance with English
law. The parties agree to submit to the exclusive jurisdiction of the
English Courts. If the Tenant shall be incorporated or registered
outside England and Wales its address stated in the Particulars shall
be its address for service for the purpose of proceedings brought in
the English Courts.
17.2 The Guarantor irrevocably authorises and appoints Bridgehouse Partners
LLP of Xxxxxxxxxx Xxxxx, 0 Xxxxxxxxxx Xxxxxx, Xxxxxx X0X 0XX (or such
other firm of solicitors in England or Wales as it may from time to
time by written notice to Global Switch substitute), to accept service
for the purpose of proceedings brought in the English Courts and
service on Bridgehouse Partners LLP (or such substitute) shall be
deemed to be service on the Guarantor.
18 NOTICES
18.1 Any notice required or authorised by this Agreement must be in writing.
18.2 Giving a notice or delivering a document to the Tenant's lawyer has the
same effect as giving or delivering it to the Tenant.
18.3 Transmission by fax is a valid means of giving a notice or delivering a
document where delivery of the original document is not essential.
18.4 Subject to Clauses 18.5 and 18.6, a notice is given and a document
delivered when it is received.
18.5 If a notice or document is received after 4 pm on a working day, or on
a day that is not a working day, it is to be treated as having been
received on the next working day.
18.6 Unless the actual time of receipt is proved, a notice or document sent
by the following means is to be treated as having been received before
4 pm on the day shown below:
(a) by first class post: 2 working days after posting;
(b) by second class post: 3 working days after posting;
19 GUARANTOR'S OBLIGATIONS
19.1 The Guarantor covenants with Global Switch including (without the need
for any express assignment) its successors in title that at all times
during the Term and
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notwithstanding any disclaimer of this Agreement the Rent and all other
sums payable pursuant to this Agreement will be punctually paid and the
obligations and other terms on the Tenant's part contained in this
Agreement will be performed and observed and if at any time during the
Term there is a default in the payment of Rent or in observance and
performance of any obligations or terms in respect of which default has
occurred the Guarantor will pay the Rent and observe or perform the
obligations or terms in respect of which such default has occurred and
will make good to Global Switch on demand and will indemnify Global
Switch against all losses damage costs and expenses arising or incurred
by Global Switch as a result of such non-payment non-performance or
non-observance.
19.2 The liability of the Guarantor will not in any way be released lessened
or affected by:
(a) any time or indulgence granted by Global Switch to the Tenant
or any neglect or forbearance of Global Switch in enforcing
the payment of the Rent or the observance or performance of
the covenants or other terms of this Agreement;
(b) any variation of the terms of the Agreement by agreement
between Global Switch and the Tenant.
19.3 If at any time during the Term the Tenant (being an individual) becomes
bankrupt or (being a company) enters into liquidation and the trustee
in bankruptcy or liquidator disclaims this Agreement then if so
required by written notice given by Global Switch within three months
after such disclaimer the Guarantor or a company which the Guarantor
shall nominate being a company of at least equivalent financial
standing to the Guarantor as at the date of this Agreement and which
Global Switch shall approve (acting reasonably) will enter into a new
agreement with Global Switch subject to any interest affecting the
Location for a term equal to the residue of the Term which would have
remained had there been no disclaimer for the same Service Fee as that
which would otherwise have then been payable under this Agreement and
subject to the same covenants provisions and conditions in all respects
as those contained in this Agreement such new agreement to take effect
from the date of disclaimer.
19.4 If Global Switch so requires the new agreement will contain an express
obligation (in addition to all other obligations and provisions as
mentioned and specified above) by the Guarantor (as Tenant) immediately
to carry out and complete at its own expense all works (whether of
repair decoration or otherwise) for which the Tenant would have then
been liable at the date of the grant of the new agreement under the
obligations provisions and conditions of this Agreement if the Location
had at that date been in its actual state and condition.
19.5 In any such case the Guarantor shall pay the proper and reasonable
costs of negotiating, documenting and executing the new agreement.
19.6 If this Agreement is disclaimed and for any reason Global Switch does
not require the Guarantor to accept a new agreement in accordance with
the above provisions the Guarantor will pay to Global Switch on demand
an amount equal to the Service Fee and all other sums payable pursuant
to this Agreement for the period commencing on the date of the
disclaimer and ending on the date six months after the disclaimer.
19.7 It is agreed and declared that the liability of the Guarantor is as
principal covenantor with Global Switch and not merely collateral to
the principal liability of the Tenant.
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20 CONTRACTS (RIGHTS OF THIRD PARTIES) ACT 1999
Unless the right of enforcement is expressly granted, it is not
intended that a third party should have the right to enforce any
provision of this Agreement under the Contracts (Rights of Third
Parties) Xxx 0000.
21 UPGRADE WORKS
21.1 Global Switch may enter the Location and carry out the works (which are
set out on the attached scope of works) within the Location to divide
the Location from other parts of the Facility (the "UPGRADE") and
Clause 9 shall apply to the Upgrade.
21.2 Prior to commencing work Global Switch will notify the Tenant in
writing and on an open-book basis of the estimated costs of the
Upgrade.
21.3 Subject to clause 21.4 the Tenant shall pay to Global Switch on demand
all reasonable costs actually incurred by Global Switch in carrying out
the Upgrade.
21.4 The costs payable by the Tenant under clause 21.3 shall not exceed
(pound)17,000+ ((pound)17,000 x BI)
where BI is the percentage increase (if any) in the Building Index
between the date of this Agreement and that date upon which the Upgrade
is completed.
22 SECTIONS 24-28 LANDLORD AND TENANT ACT 1954
Having been authorised so to do so to do by an Order of the
Kingston-upon-Thames County Court made on the _____________ 2003
pursuant to section 38(4) Landlord and Xxxxxx Xxx 0000 Global Switch
and the Tenant agree that the provisions of sections 24-28 (inclusive)
of that Act are excluded in relation to this Agreement.
AS WITNESS their acceptance of the terms and conditions set out in this
Agreement the parties have executed this Agreement as a deed on the date set out
in the Particulars.
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SCHEDULE
(SERVICES)
1 Save to the extent that such maintenance is either the Tenant's
responsibility under Clause 6.1 of this Agreement or required due to
damage caused by the Tenant, the maintenance and repair of the
structure of the Facility and all parts of the Facility to include
maintaining, repairing, renewal and replacement (where necessary),
cleaning and redecorating the exterior structure, foundations, all
walls, the roof, the structure, foundations, all walls, the roof, the
structural slabs of the ceilings and floors, any party walls,
structures and boundaries which form part of the Facility, and the
means of vehicular and pedestrian access thereto is maintained repaired
and (where necessary) renewed, the Common Areas, all service media and
all plant and equipment serving the Facility.
2 Provision of access at all times throughout the year for visiting
public telecommunications carrier staff for the installation and
testing of lines.
3 Provision of access at all times throughout the year for visiting
maintenance staff from any authorised maintenance organisation.
4 Provision of access at all times throughout the year for visiting
Tenant staff.
5 Liaising with the Tenant over equipment installations by suppliers or
public telecommunications carriers, or maintenance visits by any
authorised maintainer.
6 At all times throughout the year ordering on behalf of the Tenant
communications circuits from public telecommunications carriers on
instruction from and as authorised by the Tenant.
7 In relation to the Common Areas:
7.1 the cleaning, repair, maintenance, decoration, replacement and renewal
(where necessary) of the Common Areas and all relevant external areas
of the Facility;
7.2 the maintenance, repair and renewal of electrical plant and equipment;
7.3 the provision of lighting;
7.4 the provision of heating;
7.5 the provision of air conditioning in the reception/lobby area;
7.6 the provision of hot and cold running water;
7.7 the repair, maintenance, renewal and operation of such fire prevention,
fire fighting and fire alarm equipment and signs as may be required by
any fire or other authority, or as required by Global Switch's
insurers;
7.8 the provision and, where necessary, renewal of refuse bins and the
operation of a refuse collection service for the Facility;
7.9 the provision of separate meters to monitor and record the supply of
the utilities to the Common Areas;
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7.10 the payment of all existing and future rates payable in respect of the
car parking spaces referred to in Clause 2.1(b) together with any
internal and external plant compounds/buildings and all Common Areas;
7.11 carpeting, decorating, furnishing and equipping the Facility to a high
quality (to be reasonably agreed with the Tenant), (which shall include
the provision of such services to the main entrance halls and lobby
areas of the Facility);
7.12 the provision of a suitably qualified receptionist in the common
reception areas during normal working hours and the provision of at
least one security guard to carry out the receptionist's duties at the
reception at all other times
7.13 the provision of appropriate switchboard facilities at all times
throughout the year.
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8.1 Insuring:
(a) the Facility; and
(b) against the public liability of Global Switch in respect of
claims in connection with or in any way arising out of the use
by the Tenant of the Facility;
8.2 Where the Facility is damaged by a risk against which Global Switch has
insured laying out the net proceeds of such insurance in respect of
such damage (other than in respect of loss of service fee income) in
remedying the damage and reinstating the Facility.
9 The provision from the date of this Agreement at all times of suitable
beverage and food vending machines and appropriate preparation areas
(to include microwave ovens).
10 The provision, repair, maintenance, replacement and renewal (if
necessary) of flood lighting and of any plants, shrubs, trees, garden
or other landscaped areas in the Common Areas.
11 The provision, furnishing, servicing, cleaning, maintaining and (where
necessary) renewing a suitable conference room, audio visual facility
for the use of the occupiers of the Facility of such size.
12 The provision, maintenance, repair and (where necessary) replacement of
sign boards located in the common entrance areas.
13 The provision, repair, maintenance and (where necessary) renewal or
replacement of the car parking spaces referred to in Clause 2.l(b).
14 The maintenance, repair, renewal (where necessary) and cleaning (where
necessary) of the Facility's security equipment.
15 The provision of a suitable number of security personnel to patrol the
site on a regular basis and monitor the security equipment
installations at all times throughout the year. In addition, the
following provisions will be made:
15.1 the maintenance of a rolling archive of 1 month's events as recorded by
the CCTV equipment. The recordings will be stored for review when
required;
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15.2 fax/e-mail equipment to enable the Tenant to communicate access
requirements;
15.3 the supply of proximity reader cards for the Tenant's staff, Tenant's
contractors and agents.
16 Supervision of equipment and checking of all fire alarms, facility
management and security systems.
17 Establishing procedures for fault notification and logging, including
points of contact with the Tenant, escalation procedures and
notification of clears.
18 The provision of a building manager ("THE FACILITY MANAGER") to oversee
the services outlined in this Services List and act as the principal
point of contact for the Tenant in respect of the Tenant's requirements
as to reporting faults to the Facility Manager and the Facility Manager
reporting faults to Global Switch and the Tenant. The Facility Manager
will be located on site during normal working hours with emergency call
out availability at any time when not present on site at all times
throughout the year.
19 The provision to the Location of the following:
19.1 continuous electrical power supply from either a mains or a generator
source;
19.2 tempered fresh air from air main plant handling units;
19.3 chilled water from the chilled water based cooling system;
19.4 keeping active, powers and ready for use the system for the extraction
of smoke and suppressant gas from the Location;
19.5 keeping active, powered and ready for use the stand by generators;
19.6 operation of the building management system as necessary in support of
the services and the provision of a data link to allow monitoring (but
not operation) of the building management system by the Tenant.
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INCIDENT REPORT
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To: Building Manager
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Tenant:
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Location:
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Date of Service Interruption:
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Time of Service Interruption:
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Nature of Service Interruption:
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Signed for and on behalf of the Tenant
..............................
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BELOW THIS LINE FOR GLOBAL SWITCH INTERNAL USE ONLY
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Date and time of receipt of Incident Report:
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Action taken:
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Date and time full Service resumed:
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Signed:
..............................
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