INSTALLATION SERVICES AGREEMENT
THIS INSTALLATION SERVICES AGREEMENT is executed this 2nd day of October,
1996 by TELEPORT COMMUNICATIONS GROUP INC. ("TCG"), a Delaware corporation,
with principal offices located at Two Xxxxxxxx Xxxxx, Xxxxxx Xxxxxx, Xxx Xxxx
00000, and ADVANCED RADIO TELECOM, CORP. ("ART"), a Delaware corporation, with
principal offices located at Xxxxx 0000, 000 - 000 X.X., Xxxxxxxx, Xxxxxxxxxx
00000.
WHEREAS, BizTel, Inc. ("BizTel") has been issued licenses by the Federal
Communications Commission ("FCC") to provide wireless telecommunications
services utilizing specific portions of the 38.6 to 40.0 GHz frequency band (the
"38 GHz band") in certain geographical areas and, in the future, BizTel may
receive licenses from the FCC for additional geographical areas from time to
time; and
WHEREAS, TCG has entered into an agreement (the "Prime Contract"),
pursuant to the terms and conditions of which TCG is providing BizTel with 38
GHz transmission facilities ("Transmission Facilities") installation services;
and
WHEREAS, pursuant to the Prime Contract, and subject to provision therein
for BizTel's approval, TCG has the right to subcontract Transmission Facilities
installation services that it is providing to BizTel; and
WHEREAS, among other things, ART has expertise in the installation of 38
GHz microwave radio systems; and
WHEREAS, BizTel has consented to TCG's use of ART as a Transmission
Facilities installation services subcontractor in accordance with the terms and
conditions contained herein; and
WHEREAS, TCG desires to utilize ART on a subcontractor basis to provide
installation services in connection with the Prime Contract, and in accordance
with the terms and conditions set forth herein.
NOW THEREFORE, in consideration of the mutual promises, covenants and
conditions set forth below, the parties, intending to be legally bound, agree as
follows:
1.0 Term.
The term of this Agreement shall be one (1) year from the date of
execution. The initial term and any subsequent renewal term shall be subject to
termination of this Agreement pursuant the provisions of Paragraphs 9.0 and
11.11.
2.0 Installation of Transmission Facilities.
2.1 Non-Exclusive Contractor. TCG hereby retains ART, pursuant to
the terms hereof, to install Transmission Facilities on a subcontract basis in
connection with TCG's obligations under the Prime Contract. The services
provided hereunder to TCG shall be rendered by ART on a non-exclusive basis and
nothing in this Agreement shall prevent TCG, in its sole discretion, from
utilizing other sources, including, but not limited to TCG's own internal
sources, to install Transmission Facilities.
2.2 Installation Order. From time to time during the term hereof,
TCG may request, that ART install Transmission Facilities at specified
geographic locations. TCG shall initiate such requests by providing ART with a
properly completed circuit path installation order ("Installation Order") in the
form set forth in Exhibit A hereto, as that form may be modified by agreement of
the parties from time to time. Such Installation Order shall specify the
desired location of the transmission points, the desired transmission path, the
desired transmission capacity, the specific equipment to be installed, the
desired date for the commencement of service, as well such other information as
may be provided by TCG or reasonably requested from time to time by ART and
shall contain record of BizTel's certification in a corresponding installation
order issued by BizTel to TCG, that the desired transmission path is free of
harmful interference and from causing harmful interference to other transmission
paths, based on BizTel's computer analysis. Within five (5) business days after
receipt of a Installation Order, ART may elect to accept the order, and, if so,
shall indicate such acceptance by countersigning said Installation Order and
returning a countersigned original to TCG. If no written approval is received
by TCG within said time period, TCG may assume that ART has declined to accept
said offer and TCG
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shall be free to obtain the desired services from any other source, including
its own internal sources.
2.3 Standard Installation Services. ART shall provide all requisite
engineering services, as well as all of the labor and materials (including
mounting hardware and cabling) required to install the Transmission Facilities
specified in an Installation Order in accordance with the installation
specifications provided in Exhibit B hereto (the "Installation Specifications"),
which may be amended from time to time by agreement of the parties to comply
with any changes to the Prime Contract, standard industry practices,
manufacturer recommendations, and the Rules and policies of the FCC and any
state regulatory authority with competent jurisdiction (a "Standard
Installation"). In addition, at the conclusion of each installation, ART shall
perform such tests as may be reasonably required by TCG and or BizTel to ensure
that said installations have been completed in accordance with the Installation
Specifications. Notwithstanding anything contained in this Paragraph 2.3 to the
contrary, all transmission equipment (including transmitters, antennas and other
electronics) required for any Installation shall be provided as set forth in the
Installation Order. In the event the Installation Order specifies ART as the
provider of the transmission equipment, title to such equipment shall be
transferred by ART concurrently with the delivery of the Installation Completion
Report pursuant to a xxxx of sale and such other documents as are reasonably
necessary to accomplish such transfer. In connection with the transfer of title
to such equipment, ART shall assign to TCG, to the extent reasonably possible,
any rights of ART to manufacturer's warranties relating to the equipment. From
and after the date of ART's delivery of the Installation Completion Report, TCG
shall bear the entire risk of loss, theft, destruction or damage of the
equipment or any portion of it from any cause whatsoever for the equipment
covered by such Report. The total or partial destruction of any equipment or
the total or partial loss of use or possession by TCG shall not release or
relieve TCG from the duty to pay the charges provided herein.
2.4 Site Leases, Permits & Approvals.
(1) In addition to any other services provided hereunder, upon TCG's
request, ART shall make reasonable efforts to obtain
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on TCG's behalf and under TCG's supervision any site leases, site use permit, or
other site acquisition agreements ("Site Leases") as may be deemed by TCG to be
reasonably necessary to install, operate and/or maintain any specified
Transmission Facilities. All Site Leases shall, to the extent reasonably
practicable, be obtained as set forth in the Installation Order and accepted by
ART. ART shall submit for TCG's approval any Site Lease not substantially in
the form of that attached as Exhibit C. TCG shall within two (2) Business Days
provide Notice to ART whether TCG agrees to such Site Lease. TCG's failure to
give Notice within such two (2) Business Day period shall be deemed acceptance
of such Site Lease as proposed.
(2) In the event ART is requested to obtain a Site Lease on TCG's behalf,
TCG shall pay any nonrecurring and recurring finders fees, access, rental, or
other fee, cost or charge associated with such Site Leases (a "Site Use
Charge"). In the event the use of a potential site would result in a Site Use
Charge, ART shall give Notice to TCG. TCG shall within two (2) Business Days of
delivery of ART's Notice, provide Notice to ART whether or not TCG agrees to
such Site Use Charge. TCG's failure to provide Notice within such two (2)
Business Day period shall be deemed acceptance by TCG of the Site Use Charge.
TCG hereby agrees that upon TCG's acceptance of a Site Use Charge, TCG shall
execute a Site Lease for such Site. Notwithstanding the foregoing, ART shall be
authorized to accept a Site Use Charge on TCG's behalf of no greater than $200
on a recurring basis and $1,200 on a non-recurring basis without prior Notice to
or approval of TCG.
(3) Other than as set forth herein, TCG shall obtain all permits and
approvals as may be reasonably necessary to install, operate and/or maintain any
specified Transmission Facilities.
2.5 Non-Standard Installation Services.
(1) If requested in an Installation Order, and agreed to by ART, ART shall
also be responsible for providing non-standard installation services. Such
services shall be specified in said Installation Order, and the parties shall
agree upon the consideration to be paid by TCG for said services consistent.
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(2) ART may also identify services and equipment necessary to perform an
installation after the receipt of an Installation Order. In the event such
anticipated non-standard installation services exceed $1,000, ART shall give
Notice to TCG. TCG shall within two (2) Business Days of the Notice, provide
Notice to ART whether TCG agrees to such non-standard installation services.
TCG's failure to give Notice within such two (2) Business Day period shall be
deemed acceptance of such non-standard installation services.
2.6 Subcontractors. ART may utilize subcontractors to perform its
installation services obligations pursuant to this Agreement. In order to
ensure compliance with the terms and conditions of the Prime Contract, and to
ensure a superior level of quality and to maintain the integrity of proprietary
information, TCG and BizTel shall have reasonable discretion to approve (or
reject) any subcontractor providing such services. The use of subcontractors
shall not relieve ART from any of its obligations hereunder.
2.7 Installation Completion. Within two (2) business days after
completion of the installation, ART shall provide a Completion Notice to the TCG
Network Management Center (as defined in Paragraph 3.1) in the form set forth in
Exhibit D attached hereto. For purposes of this Agreement, installation shall
not be deemed completed until TCG acknowledges in writing that the subject
Transmission Facilities have been installed in accordance with the Installation
Specifications, which acknowledgment shall be issued within two (2) business
days and shall not be unreasonably withheld by TCG; provided, however, that TCG
may reject any installation if not in accordance with the Installation
Specifications. TCG's failure to provide such acknowledgement within such two
(2) Business Day period shall be deemed acceptance of completion by TCG. Upon
TCG's reasonable request, ART shall provide TCG with such other reports
concerning ART's performance of installation services hereunder.
2.8 Timely Completion. ART shall make reasonable efforts under the
circumstances to complete construction in accordance with the Installation
Specifications within the time period specified in the Installation Order.
Mitigating circumstances shall include, but not be limited to events of force
majeure (as defined in paragraph 11.8) and harmful radio
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interference not detected previously and untimely equipment delivery beyond the
control of ART.
3.0 Network Operations.
3.1 BizTel Network Control Procedures. BizTel maintains and
operates, at its sole cost and expense, at least one network control center (the
"Network Control Center") from which it monitors and controls all BizTel
Transmission Facilities, electronically enters Installation Orders, tracks such
orders and generally supervises the day-to-day activities of TCG pursuant to the
Prime Contract. Under such supervision, monitoring of Installation Orders
pursuant to this Agreement shall be accomplished by TCG at the TCG network
management center (the "NMO"). The NMO shall be staffed 24 hours a day, seven
days a week, and shall have the capability at any time, upon the direction of
the Network Control Center, to activate or shut down any Transmission Facilities
which are the subject of any Installation Order. No Transmission Facilities
installed pursuant to this Agreement shall initiate radio emissions without
prior authorization from the NMO. Each center shall have the capability of
monitoring Transmission Facilities to determine whether they are operating
normally and in accordance with BizTel's standards of service, the terms and
conditions of the BizTel licenses and all applicable Federal and state
regulations. ART shall cooperate fully at all times to facilitate the above-
described network control procedures.
3.2 Testing of Transmission Facilities. Notwithstanding any other
provision of this Agreement, ART shall notify the NMO prior to initiating any
testing of Transmission Facilities in connection with any installation services
provided hereunder. ART shall report the results of any testing to the NMO
within twelve (12) hours of conducting said tests.
3.3 Initiation, Restoration or Interruption of Regular Operations.
Notwithstanding any other provision of this Agreement, ART shall coordinate with
the NMO prior to initiating regular service at any Transmission Facilities
installed by ART pursuant to this Agreement. ART shall report the time and
location of any regular service initiation that it performs pursuant to this
Agreement to the NMO on the Completion Notice set forth in Paragraph 2.7.
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4.0 Payment Obligations of TCG.
4.1 TCG shall pay to ART Twenty-Five Thousand Nine Hundred Sixty
Dollars ($25,960) ("Services Payment") for each Standard Installation installed
pursuant to an Installation Order in accordance with the Installation
Specifications. TCG will pay any non-standard installation service in connection
with such installation services pursuant to Section 4.3 below.
4.2 TCG shall deliver the Services Payments to ART as follows:
(1) Six Thousand Four Hundred Ninety Dollars ($6,490) concurrent with each
Installation Order;
Nineteen Thousand Four Hundred Seventy Dollars ($19,470) within
fifteen (15) business days of TCG's acceptance of installation
completion as set forth in Paragraph 2.7.
4.3 Except for recurring Site Use Charges and other similar costs which
TCG shall assume and be responsible for, ART shall invoice TCG each month for
the cost of non-standard installation services. All payments shall be due
within thirty (30) days of the receipt of the invoice. Payments shall be
forwarded to the address stated on the face of the invoice. ART shall have the
option, without notice, to impose a late payment charge of one and one-half
percent (1.5%) per month or the maximum amount allowable by law on any past due
charges, whichever is higher. TCG agrees to pay all costs, including reasonable
attorney's fees, expended in collecting past due charges. All invoices shall be
conclusively presumed to be accurate unless TCG gives notice to ART to the
contrary within thirty (30) days of the receipt of the invoice, except where the
incorrectness could not have been discovered with due diligence within that
period.
4.4 Taxes. TCG agrees to pay any sales, use, gross receipts, excise or
local, state or Federal taxes or charges, however designated (excluding taxes on
ART's net income, or any fines or other forfeitures imposed on ART or
indemnified by ART pursuant to Paragraph 8.0), imposed or based on the
provision, sale, or use of services provided under this Agreement. Any taxes
imposed on ART that are required to be paid
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by TCG under this Paragraph 4.5 shall be separately stated on each monthly xxxx
submitted by ART to TCG.
4.5 Changes in Rates. All rates for services provided pursuant to
this Agreement may be modified by written agreement of the parties based on
changes in ART's cost to provide such services as a result of TCG's modification
of the Installation Specifications.
5.0 Regulatory Issues.
5.1 Agreement In Compliance. The parties to this Agreement hereby
agree that nothing in this Agreement is intended to diminish or restrict
BizTel's obligations as an FCC licensee, and it is the intent of TCG and ART
that this Agreement and the services provided hereunder be in full compliance
with: (i) the terms and conditions of BizTel's 38 GHz licenses; (ii) all
applicable Rules and policies of the FCC; (iii) the Communications Act of 1934,
as amended; and (iv) any applicable state and local telecommunications
regulation.
5.2 Retention of Control by BizTel. In performing the services
provided for under this Agreement, ART at all times shall take all reasonable
measures to ensure that all Transmission Facilities and the daily operations
thereof remain subject to the ultimate control and/or unfettered access of
BizTel, with "unfettered access" meaning the same level of access privilege to
the subject Transmission Facilities which is afforded to ART. It is expressly
understood by TCG and ART that nothing in this Agreement is intended to give to
ART any right which would be deemed to constitute a transfer of control (as
"control" is defined in the Communications Act of 1934, as amended, and/or any
applicable FCC rules or case law) of one or more of BizTel's 38 GHz licenses.
In this regard, ART shall make reasonable efforts to ensure that its employees,
agents, affiliates, and subcontractors shall not represent ART to be the holder
of any FCC licenses issued to BizTel.' Further, ART shall not represent itself
to be the legal representative of BizTel or TCG before the FCC or any state
regulatory body.
5.3 Cooperation. ART shall cooperate fully with TCG and BizTel at
all times to reasonably ensure that and all activities performed pursuant to
this Agreement comply fully with
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all applicable FCC Rules and policies and any applicable state
telecommunications law or regulations as of the time of Installation. Such
cooperation shall include, but not be limited to, ART's assistance in the
posting of FCC licenses at any Transmission Facilities location installed by ART
pursuant to an Installation order provided TCG delivers said license to ART no
later than three (3) business days prior to the scheduled Installation
completion date set forth on the Installation Order. ART shall be entitled to
reimbursement for any reasonable expenses resulting from such cooperation that
are not a part of the Installation Specifications.
5.4 Regulatory Interpretation. BizTel shall have the right to
determine: (i) regulatory compliance of its 38 GHz operations; (ii) its
obligations as an FCC licensee or a state-certified common carrier; or (iii) the
applicability of any FCC rules or policies, or state telecommunications laws and
regulations. Notwithstanding the foregoing, neither ART nor its employees,
agents, affiliates, or subcontractors shall knowingly fail to comply with
applicable regulatory obligations.
5.5 Filings. ART shall not be responsible for, and shall not bear
any costs for, any filings with: (i) the FCC; (ii) state utility commissions;
and (iii) any other governmental body. However, in order to facilitate the
timely filing of FCC submissions deemed necessary or desirable by BizTel in its
own discretion, ART shall cooperate fully by timely supplying to TCG information
related to the performance of its services hereunder reasonably necessary to
make such filings. BizTel shall be solely responsible for determining the form
and content of, as well as preparing, filing and prosecuting any such filings.
6.0 Warranty.
6.1 Standard of Performance. ART shall perform the services
hereunder materially and reasonably in accordance with the requirements set
forth in this Agreement, as they may be modified by agreement of the parties
from time to time, in a workmanlike manner using material and equipment free
from known defects, except that TCG shall be responsible for the condition of
any transmission equipment provided by TCG, or provided by a TCG equipment
vendor other than ART, upon its delivery to ART.
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6.2 EXCEPT AS SET FORTH ABOVE OR OTHERWISE HEREIN, ART MAKES NO
WARRANTIES OF ANY KIND WITH RESPECT TO ANY OF THE EQUIPMENT, SERVICES AND
RELATED SUPPORT SERVICES, WHETHER EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED
TO IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR
CONFORMITY TO ANY REPRESENTATION OR DESCRIPTION OR COMPLIANCE WITH FCC RULES OR
REGULATION. NEITHER PARTY SHALL BE LIABLE TO THE OTHER PARTY OR ANY CUSTOMER OR
SUCH OTHER PARTY OR ANY OTHER PERSON (INCLUDING, FOR EXAMPLE, A PERSON BUYING
COMMUNICATIONS SERVICE FROM A CUSTOMER OF SUCH OTHER PARTY) FOR INDIRECT,
SPECIAL, PUNITIVE, INCIDENTAL OR CONSEQUENTIAL DAMAGES (INCLUDING BUT NOT
LIMITED TO LOST REVENUES, ANY CLAIM OF ANY CLIENT, CUSTOMER OR PATRON FOR LOSS
OF SERVICES, LOST PROFITS OR REVENUES, OR COST OF SUBSTITUTE PERFORMANCE,
EQUIPMENT OR SERVICES) ARISING UNDER THIS AGREEMENT OR FROM ANY BREACH OR
PARTIAL BREACH OF THE PROVISIONS OF THIS AGREEMENT OR ARISING OUT OF ANY ACT OR
OMISSION BY EITHER PARTY, ITS EMPLOYEES, SERVANTS, AGENTS OR AFFILIATES, WHETHER
BASED ON A BREACH OF CONTRACT, BREACH OF WARRANTY, NEGLIGENCE OR ANY OTHER
THEORY OF LIABILITY.
7.0 Liability Insurance.
ART and TCG shall each maintain, and require their respective
subcontractors and/or affiliates to maintain, during the term of this Agreement
the following insurance coverage as well as all other insurance required by law
in each jurisdiction where the work is performed hereunder: (1) Worker's
Compensation and related insurance as required by law, related to its employees;
(2) employer's liability insurance, related to its employees, with a limit of at
least two million dollars ($2,000,000.00) for each occurrence; (3) comprehensive
general liability insurance, with a limit of at least two million dollars
($2,000,000.00) per occurrence; and (4) for ART and its subcontractors and
affiliates, comprehensive motor vehicle liability insurance with limits of at
least two million dollars ($2,000,000.00) for bodily injury including death, to
any one person, three hundred thousand dollars ($300,000.00) for each occurrence
of property damage, and one million dollars ($1,000,000.00) for any one
occurrence. Each party shall furnish the other, if requested by the other,
certificates or adequate proof of the insurance required by this clause. Any
policy pursuant to this Paragraph 7.0 shall provide that the insurance company
must give ART and TCG notice in writing at least thirty
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(30) days prior to cancellation of, or any material change in, the policy.
8.0 Indemnification.
8.1 Terms of Indemnification. Except as otherwise provided in this
Agreement, TCG and ART shall indemnify, defend and hold the other party harmless
from any and all claims, damages, causes of action, penalties, statutory
damages, interest, and costs and expenses, including reasonable attorney's fees
and court costs, arising directly or indirectly out of (i) the breach of such
party's representations, warranties or obligations hereunder, or (ii) the
negligence or willful misconduct of the said party, its employees or agents in
connection with the performance of this Agreement.
8.2 Prompt Notice. A party seeking indemnification pursuant to this
Agreement (the "Indemnified Party") shall, as condition to its right to be
indemnified, give the party from which such indemnification is sought (the
"Indemnifying Party") prompt notice of the matter for which such indemnification
is sought specifying the matter and the covenant, representation, warranty,
agreement, undertaking or obligation contained herein which it asserts provides
a right to indemnification and, in reasonable detail, the nature and dollar
amount of any claim against the Indemnified Party for which the Indemnified
Party seeks indemnification (a "Claim"). Prior to taking any action with
respect to any Claim, the Indemnified Party shall consult with the Indemnifying
Party as to the procedure to be followed in defending, settling, or compromising
such Claim, and the Indemnified Party shall not consent to any settlement or
compromise of any Claim without the prior written consent of the Indemnifying
Party. The Indemnified Party shall permit the Indemnifying Party, if it so
elects, to assume the exclusive defense of any Claim, including the compromise
or settlement thereof, at its own cost and expense. If the Indemnifying Party
shall elect to assume the exclusive defense of any Claim pursuant to this
Agreement, it shall notify the Indemnified Party in writing of such election,
and the Indemnifying Party shall not be liable hereunder for any fees and
expenses of the Indemnified Party's counsel relating to such Claim after the
date of delivery to the Indemnified Party of such notice of election.
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8.3 Survival. The provisions of this Paragraph 8.0 shall survive the
termination or expiration of this Agreement for a period of one (1) year.
9.0 Termination.
9.1 Basis For Termination. If an Event of Default occurs as set forth
in this Paragraph 9.0, either party may terminate this Agreement upon thirty
(30) days' written notice to the other party; provided, however, that only a
nondefaulting or nonbreaching party may terminate this Agreement as a result of
an Event of Default. Any party seeking to terminate this Agreement shall
continue to fulfill its obligations under this Agreement during the above notice
period.
9.2 Event of Default. For purposes of this Agreement, it shall be an
"Event of Default" hereunder if: (i) ART or TCG breaches any material covenant
or agreement entered into between ART and TCG in connection with this Agreement,
or otherwise fails to materially comply with any provision of this Agreement,
and such breach or failure continues for thirty (30) days after written notice
thereof shall have been sent by the nonbreaching party to the breaching party;
or (ii) TCG or ART fails to make any payment due and payable under this
Agreement and such failure continues for thirty (30) days after written notice
thereof shall have been sent by the nonbreaching party to the breaching party.
9.3 Termination of Installation Order. Prior to delivery of the
Completion Notice, TCG may in its discretion terminate any Service Order. Upon
such termination, TCG shall be responsible for reimbursing ART for any out-of-
pocket costs or expense incurred by ART prior to such termination which ART is
unable to recoup through resale.
9.4 Other Remedies. In addition to the termination rights set forth in
this Paragraph 9.0, each party may exercise any other remedy available at law or
equity in an Event of Default by the other party.
9.5 Survival. Notwithstanding any termination pursuant to this
Paragraph 9.0, any payment obligations incurred
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to the effective date of such termination pursuant to Paragraph 4.0 shall
continue in full force and effect until satisfied.
10.0 Use of Information.
10.1 Confidential Treatment. Each party acknowledges that, in the
course of the performance of this Agreement, it may have access to privileged
and proprietary information claimed to be unique, secret and confidential, and
which constitutes the exclusive property or trade secrets of the other, and the
parties acknowledge that they are in a confidential relationship with each
other. Such information, which shall include, without limitation, customer
information, may be presented in documents marked with a restrictive notice or
otherwise tangibly designated as proprietary or during oral discussions, at
which time representatives of the disclosing party may specify that the
information is proprietary. Notwithstanding the foregoing, all information
exchanged hereunder ("Information"), in whatever form recorded, furnished by
either party to the other party under or in contemplation of this Agreement
shall remain the property of the furnishing party. Unless the parties otherwise
agree in writing, all Information: (i) shall be treated in confidence by the
receiving party and used only for the purposes for which furnished, (ii) shall,
together with any copies thereof, be returned or destroyed when no longer
needed, or may, if in the form of software recorded on an erasable storage
medium, be erased. The above conditions do not apply to any part of the
Information that can be shown to have been: (i) previously known by the party to
which it was furnished; (ii) in the public domain through no fault of such
party; or (iii) later lawfully acquired from any other source, which source is
not the agent of the other party, by the party to which it was furnished.
Notwithstanding the foregoing, BizTel shall be permitted to use Information
provided by ART in submissions required by the FCC or any other regulatory body
of competent jurisdiction.
10.2 Survival. The provisions of this Paragraph 10.0 shall survive
the termination or expiration of this Agreement for a period of two (2) years.
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11.0 Miscellaneous
11.01 Notice. All notices, request, demands and other communications
under this Agreement must be in writing and will be deemed duly give, unless
otherwise expressly indicated to the contrary in this Agreement, (i) when
personally delivered, (ii) upon receipt of a telephone facsimile transmission
with a confirmed telephonic transmission answer back, (iii) three (3) days after
having been deposited in the United States mail, certified or registered, return
receipt requested, postage prepaid, or (iv) one (1) business day after having
been dispatched by a nationally recognized overnight courier service, addressed
to the parties or their permitted assigns at the following addresses (or at such
other address or number as is given in writing by either party to the other) as
follows:
If to ART: If to TCG:
Xxxxxx X. Xxxxxx Teleport Communications Group Inc.
President One Teleport Drive
500-108th Avenue, N.E. Staten Island, New York 10311
Suite 2600 Attn: Vice President - Wireless
Xxxxxxxx, XX 00000 Services
Tel: 000-000-0000 Tel: 000-000-0000
Fax: 000-000-0000 Fax: 000-000-0000
with a copy to: with a copy to:
Xxxxxx X. Xxxxxx, Esq. Teleport Communications Group Inc.
General Counsel's Office One Teleport Drive
500-1-8th Avenue, N.E. Staten Island, New York 10311
Xxxxxxxx, XX 00000 Attn: W. Xxxxxxx Xxxxxxxxx, Xx.
Tel: 000-000-0000 General Counsel
Fax: 000-000-0000 Tel: 000-000-0000
Fax: 000-000-0000
11.2 Waiver. Any waiver by any party of any breach of or failure to
comply with any provision of this Agreement by the other party must be in
writing and shall not be construed as, or constitute, a continuing waiver of
such provision, or a waiver of any other provision of this Agreement.
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11.3 Complete Agreement. This Agreement, including Exhibits A - D,
which are attached to and hereby incorporated into this Agreement, sets forth
the entire understanding of the parties with respect to the subject matter
hereof, and supersedes all prior agreements, covenants, arrangements,
communications, representations or warranties, whether oral or written, by any
party or any officer, employee or representative of any party with respect to
the subject matter hereof.
11.4 Assignment. This Agreement may not be assigned by TCG or ART,
unless the assigning party obtains the prior written consent of the other party
and any attempted assignment in contravention of this provision shall be void
and ineffective. Notwithstanding the foregoing, ART may assign this Lease
Agreement without TCG's prior written consent (i) in conjunction with the merger
or reorganization of ART or any controlling corporation, or the sale by ART or
any controlling corporation of all or substantially all of its assets; or (ii)
to any entity that is affiliated with, owns or controls, or is owned or
controlled by, in whole or in part, ART or its affiliates.
11.5 Survival. This Agreement shall be binding upon and inure to the
benefit of the parties, and their respective assigns, heirs, successors and
legal representatives.
11.6 Amendment. This Agreement may be amended or modified only by an
instrument in writing duly executed by both parties.
11.7 Governing Law; Jurisdiction. The parties agree that all disputes,
claims or controversies between TCG and ART arising out of or relating to this
Agreement shall (be settled by arbitration in accordance with the Commercial
Arbitration Rules of the American Arbitration Association ("AAA"). The site of
such arbitration shall be in Nassau County, New York for any dispute involving
an Installation Order or Service east of Interstate Highway 35, and in King
County, Washington for any dispute involving an Installation Order or Service
west of Interstate Highway 35. If a dispute involves (i) an Installation Order
or Service which is both east and west of Interstate Highway 35, or (ii) matters
which otherwise do not arise from an Installation Order or Service which could
be reasonably
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classified as either east or west of Interstate Highway 35, the site of such
arbitration shall be in King County, Washington. For matters arbitrated in
Nassau County, New York, decisions of the arbitration panel shall be based upon
New York State law and the law of the United States of America. For matters
arbitrated in King County, Washington, decisions of the arbitration panel shall
be based upon Washington State law and the law of the United States of America.
This choice of venue is intended by the parties to be mandatory and permissive
in nature and each party waives any right it has to assert the doctrine of forum
non-convenience or similar doctrine or otherwise object to venue as stated
herein. The arbitration panel shall consist of three arbitrators, one
arbitrator to be selected by each party and the third arbitrator to be selected
by the other two arbitrators. Any decision rendered by the arbitration panel
pursuant to this provision shall be concurred in by a majority of the members of
the panel. Judgment may be entered by any court of competent jurisdiction.
Arbitration pursuant to this section shall be the exclusive means of resolving
any dispute, claim or disagreement between ART and TCG arising under this
Agreement. The prevailing party in the arbitration shall be entitled to
reimbursement from the other party for all costs of the arbitration, including
but not limited to fees and expenses paid to the AAA and its own reasonable
costs and attorneys' fees.
11.8 Force Majeure. If by reason of force majeure either party is
unable in whole or in part to carry out its obligations hereunder, that party
shall not be deemed in violation or default during the continuance of such
inability. The term "force majeure," as used herein, shall mean the following:
acts of God, acts of public enemies; orders of any kind of the Government of the
United States of America or of any individual state or any of their departments,
agencies, political subdivisions, or officials or any civil or military
authority; insurrections, riots, epidemics, landslides, lightning, earthquakes,
fires, hurricanes, volcanic activity, storms of extraordinary force, floods,
washouts, drought, strikes, embargoes, civil disturbances, explosions, or any
other cause or event not reasonably within the control of the adversely affected
party; provided, however, that upon the occurrence of an event of Force Majeure
the delayed party shall so notify the other party promptly.
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11.9 Dealings with Third Parties; Use of Indicia. Except as set forth
herein, neither party is, nor shall either party hold itself out to be, vested
with any power or right to contractually bind on behalf of the other as its
contracting broker, agent or otherwise for committing, selling, conveying or
transferring any of the other party's assets or property, contracting for or in
the name of the other party, or making any contractually binding representations
as to the other party which shall be deemed representations contractually
binding upon such party. Neither TCG nor ART shall have the right to use the
other's name, trade names, trademarks, service marks, logos, codes or other
symbols without the other's written consent, except as required by law.
Additionally, ART shall not use BizTel trade names, trademarks, service marks,
logos, codes or other symbols without BizTel's written consent, except as
required by law
11.10 Independent Contractor. Except as set forth herein, work
performed by ART under this Agreement shall be performed as an independent
contractor and not as an agent of TCG or BizTel, and no persons furnished by ART
in connection with the performance of its obligations hereunder shall be
considered the employees or agents of TCG or BizTel.
11.11 Severability. If any provision of this Agreement is declared
void by any court, or any state or federal regulatory agency of competent
jurisdiction, the validity of any other provision of this Agreement shall not be
affected and shall remain in full force and effect. Upon such determination that
any term or other provision is invalid, illegal, or incapable of being enforced,
TCG and ART shall negotiate in good faith to modify this Agreement so as to
effect the original intent of the parties as closely as possible in an
acceptable manner to the end that the agreements contemplated hereby are
fulfilled to the extent possible, provided, however, if revisions acceptable to
both parties are not mutually agreed to by the parties within 120 days after
such a determination, either party shall have the right to terminate this
Agreement upon written notice as provided for in Paragraph 9.1.
11.12 Counterparts. More than one counterpart of this Agreement may be
executed by the parties.
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11.13 Headings. The Paragraph and other headings contained in this
Agreement are for reference purposes only and shall not affect the meaning or
interpretation of this Agreement.
IN WITNESS WHEREOF, the parties have caused this Agreement to be executed
by their duly authorized officers on the day and year first above written.
TELEPORT COMMUNICATIONS GROUP INC.
By:
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Title: VP Wireless Service
ADVANCED RADIO TELECOM, CORP.
By:
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Title: Chairman & C.E.O.
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