EXHIBIT 10.8
LICENSE AGREEMENT
This LICENSE AGREEMENT ("Agreement") made and entered into as of this 31st day
of JULY, 2001, by and between ACCESSCOLO, INC. ("Company"), a Delaware
corporation, having an office at 00 Xxxxxxx Xxxxxx, Xxxxxxxxxx, Xxxxx 000, Xxx
Xxxxxx 00000 and AT&T CORP. ("Customer"), having an office at 000 Xxxxx Xxxxx
Xxxxxx, Xxxxxxx Xxxxx, XX 00000.
RECITALS
A. Customer is the owner, lessee or customer of a certain "Data System" (as
hereinafter defined) with respect to which Customer desires Company to
perform certain "Services" (as hereinafter defined).
B. Company, or its affiliate, currently leases certain premises in the
"Building" (as hereinafter defined) pursuant to a lease (the "Lease").
Company desires to perform the Services on the terms and conditions set
forth in this Agreement.
C. All the Services shall be performed by Company at the "AccessColocenter" (as
hereinafter defined), located in the Building.
Now, therefore, in consideration of the mutual promises and covenants set forth
herein, the parties agree as follows:
1. DEFINITIONS. For purposes of this Agreement, the following definitions shall
apply.
(a) "Building" shall have the meaning set forth in the Information Schedule.
(b) "AccessColocenter" shall have the meaning set forth in the Information
Schedule.
(c) "Commencement Date" shall have the meaning set forth in the Information
Schedule.
(d) "Data System" shall mean Customer's computer hardware, peripheral and
other tangible equipment and telecommunications equipment listed on
Schedule B attached hereto and made a part hereof and placed at the Site
for use by Customer in the operation of its business. The term "Data
System" does not include any "Software" (as hereinafter defined). As
between Company and Customer, the parties acknowledge and agree that the
Data System and Software are the property of Customer.
(e) "Expiration Date" shall have the meaning set forth in the Information
Schedule.
(f) "Information Schedule" shall mean the schedule attached hereto as
Schedule A and made a part hereof.
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(g) "Rules and Regulations" shall mean the rules and regulations issued by
Company relating to the use of the Site, as such rules may be amended or
supplemented by Company from time to time. A copy of the Rules and
Regulations existing as of the date hereof is attached hereto as
Schedule D.
(h) "Security Deposit Amount" shall mean the amount set forth in the
Information Schedule as the Security Deposit Amount.
(i) "Service Charges" shall have the meaning set forth in the Information
Schedule.
(j) "Services" shall mean those services set forth in Schedule C attached
hereto and made a part hereof.
(k) "Site" shall mean the location in the AccessColocenter designated on the
Information Schedule and as shown on Exhibit A or such other location
within the AccessColocenter as the parties shall agree.
(l) "Software" shall mean any software, data, information contained in
documentation, and other information and intangibles used by Customer to
operate and maintain Customer's business through the Data System.
(m) "Term" shall mean the period commencing with the Commencement Date and
ending on the Expiration Date, unless sooner terminated in accordance
with the provisions hereof.
2. INSTALLATION OF DATA SYSTEM. Customer shall install at the Site the Data
System together with any Software desired by Customer. The Data System shall
be and remain the personal property of Customer. All costs and expenses for
such installation shall be the sole responsibility of Customer. Except as
specifically set forth with respect to the work, if any, to be performed by
Company in order to prepare the Site, Customer shall take possession of the
Site "as is," in its then condition and state of repair on the date of
delivery of the Site to Customer. Company shall connect the Data System,
installed by Customer at the Site, to the electrical system, Uninterruptible
Power Supply system ("UPS") and Emergency Power Supply system ("EPS")
provided by Company, necessary to support the Data System. All costs and
expenses for connection to the electrical, UPS and EPS power, and for
bandwidth access in the AccessColocenter or the Building shall be the sole
responsibility of Customer and shall be paid to Company as "Additional
Service Charges" (as hereinafter defined) within thirty (30) days after the
date of an invoice therefor. Provided that Customer is not then in default
beyond any applicable cure period under this Agreement, Customer shall, upon
the expiration of this Agreement, at its sole cost and expense, remove from
the Site all of Customer's property, including (without limitation) the Data
System and any other equipment installed by Customer including, without
limitation, generators, dish antennas, or whip antennas and shall repair any
damage to the Site or the Building resulting from the removal of Customer's
property - ordinary wear and tear excepted. With respect to any conduit or
cable installed in the AccessColocenter or the Building by or on behalf of
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Customer, Company shall have the right, in its sole discretion, on the
Expiration Date or sooner termination of the Term, to take possession of
such conduit and cable and, upon exercise of such right, Company shall be
the owner thereof notwithstanding anything to the contrary contained in this
Agreement. If Company elects to require Customer to remove such conduit and
cable, Company shall provide Customer sixty (60) days prior written notice
of Customer's obligation or Customer will be relieved of such obligation. If
any mechanic's lien is filed against the AccessColocenter or the Building
for work claimed to have been done for, or materials furnished to, Customer,
the same shall be discharged by Customer within twenty (20) days after the
filing thereof, at Customer's expense, by filing the bond required by law or
otherwise. If Customer shall fail to discharge any such lien within such
twenty (20) day period, Company may at any time thereafter cause such lien
to be discharged and Customer shall pay to Company all expenses incurred by
Company in connection therewith, including reasonable attorneys' fees and
costs, and such expenses shall constitute Additional Service Charges for all
purposes hereof. Customer shall have access to the Building and
AccessColocenter twenty four (24) hours per day, seven (7) days per week
throughout the Term.
3. PERFORMANCE OF SERVICES.
(a) During the Term, Company shall perform the Services through its
employees or independent contractors hired by Company.
(b) The Data System shall be accessible to Customer twenty-four (24) hours
per day, seven (7) days per week throughout the Term, subject, however,
to the security procedures of the Company and the owner of the Building
(the "Building Owner").
(c) All labor, parts and supplies required for the performance of the
Services shall be supplied by Company at Company's sole cost and
expense. All labor, parts and supplies required for the installation,
operation and maintenance of the Data System and Software shall be the
sole responsibility of Customer.
4. SERVICE CHARGES.
(a) In consideration of Company's performance of Services hereunder,
Customer shall pay the Service Charges to Company on a monthly basis,
with Service Charges for one month payable within 15 day of full
execution and delivery of this Agreement. Thereafter, Service Charges
shall be paid on the first day of each calendar month after the Service
Charge Commencement Date during the Term. Customer shall have no
obligation to pay any Operating Expenses under the Lease.
(b) The Service Charges shall include, at no additional charge, sufficient
riser access for Customer to install a one and a quarter (1 1/4) inch
interduct connecting the Customer's existing location on the eleventh
(11th) floor of the Building to the Customer's Data System in the
AccessColocenter on the seventh (7th) floor of the Building.
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(c) Customer may request that Company provide additional services (the
"Additional Services"), including, without limitation, construction of
the Site, connection of the Data System to other locations within the
AccessColocenter or the Building, maintenance of the Data System,
providing on-site management, providing bandwidth access, providing
managed storage services, providing access to risers and conduits,
providing access to antennaes, providing lateral connections to four
inch risers, providing cross-connects, providing in-house technical
support and providing project management support. If Company shall be so
requested and shall agree to perform any Additional Services, Customer
shall pay Company the charges therefor (the "Additional Service
Charges") calculated at Company's standard rates (a Current Fee Schedule
is attached as Exhibit B) or as otherwise agreed in writing between
Company and Customer, any such payment to be made within thirty (30)
days after the date of an invoice for such Additional Service Charges.
(d) In addition to the Service Charges described in Section 4(a) and the
Additional Service Charges described in Section 4(c), Customer shall pay
all sales, franchise, use, corporation, unincorporated business, income
(except for income taxes based on Company's taxable earnings), excise,
telecommunications or other applicable taxes arising out of the Services
or Additional Services provided to Customer, the Service Charges or
Additional Service Charges related thereto, or arising out of or in
connection with the use or operation of the Data System and the
Software.
(e) Customer shall pay Company interest on any amount due hereunder which is
not paid by its due date at a rate equal to the then current U.S. Prime
Rate plus two percent (2%) per annum compounded monthly (or such lesser
rate as is the highest rate permitted by law). Company shall have the
same remedies for non-payment of Additional Service Charges as are
available to Company for non-payment of Service Charges.
5. COMPLIANCE WITH LAW.
Company represents and warrants that as of the Commencement Date, the
Building and the AccessColocenter, the common areas and exterior entrances
to the Building, shall comply with all certificates, permits and approvals
required by applicable laws, statutes, ordinances, orders, codes, rules and
regulations of all federal, state, county, city and local departments and
agencies ("Legal Requirements"), including without limitation the Americans
with Disabilities Act. Company shall defend, indemnify and save Customer
harmless from any claims, fines, penalties, liabilities, losses, damages,
costs and expenses (including reasonable attorney's fees, expert witness
fees and other costs of defense) arising form the failure of Company to
comply with its obligations under this Section. Company agrees that, in
connection with the performance of the Services and the Additional Services,
Company shall comply with all applicable laws, rules and regulations.
Customer agrees that in connection with the operation of the Data System and
Software for Customer's business, Customer, its agents and employees, shall
comply with all applicable laws, rules and regulations. Customer
acknowledges that Company exercises no control whatever over the content of
any information passing through the Data System and further acknowledges
that Customer is solely responsible to insure that such information complies
with all applicable laws, rules and regulations. Customer is required to
comply with all building rules, regulations and other requirements that
Company's landlord may impose, a copy of which has been provided to
Customer.
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6. NEGATION OF WARRANTY.
Except as otherwise specifically provided herein, Company does not warrant
the Services performed hereunder or the accuracy or correctness of the
performance or results of the Services or that the Services shall be
uninterrupted, error-free or completely secure, and there are no warranties
made by Company, express or implied, including, but not limited to,
warranties of merchantability or fitness for any particular purpose.
Any interruption of Services, not caused by Customer, resulting in
Customer's inability to conduct its business in the AccessColocenter in
whole or in part shall entitle Customer to a pro rata abatement of the
Monthly Service Charges and Additional Service Charges payable for each day
Services are interrupted in excess of two (2) days in any one (1) month, or
five (5) days in any calendar year, or ten (10) days during the Term,
provided, however, in the event any interruption of Services continues for
more than thirty (30) consecutive days, Customer shall have the right to
terminate this Agreement.
7. TERM AND TERMINATION.
(a) This Agreement shall commence on the Commencement Date and expire on the
Expiration Date or sooner termination of the Term. On the Expiration
Date or sooner termination of the Term, Customer shall peaceably quit
and surrender the Site in broom-clean condition, normal wear and tear
and damage by casualty excepted and shall promptly and diligently repair
and restore to its original condition the Site or any portion of the
AccessColocenter or the Building utilized by Customer pursuant to the
provisions hereof.
(b) Customer's occupancy of the Site shall be subject to all applicable
terms and conditions of Company's lease of the AccessColocenter (the
"Lease"), including, without limitation, any provisions regarding
termination, condemnation, damage to premises and eminent domain.
(c) This Agreement may be terminated or canceled upon the occurrence of one
or more of the following (each, an "Event of Default"):
(i) By Company, if Customer fails to pay Company the Service Charges,
Additional Service Charges, taxes or other charges required to be
paid by Customer hereunder within five (5) days after the date
written notice of such failure is given to Customer;
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(ii) By either party, if the other party is in material default of any
provision hereunder and such default is not cured within thirty
(30) days after written notice thereof is given to the other
party; provided, however, if such default is of a type which may
not reasonably be cured within such thirty (30) day period, the
other party may have such additional time as is reasonably
necessary under the circumstances provided that it commences to
effect such cure within such (30) day period and thereafter
prosecutes such cure to completion with due diligence; or
(iii) By either party, if a petition is filed by or against the other
party under the United States Bankruptcy Code which petition is
not dismissed, discharged or stayed within ninety (90) days after
the date of filing in the Bankruptcy Court.
(d) In the event of any termination or cancellation of this Agreement by
Company, Company may (but shall not be required to):
(i) Declare all amounts owed to it hereunder to that date which would
have constituted the end of the Term but for its termination to
be immediately due and payable, together with all interest owed
thereon;
(ii) After fifteen (15) days' prior written notice to Customer, remove
the Data System from the Site and store for Customer's benefit at
Customer's cost and expense.
(e) The foregoing rights and remedies of the parties shall be cumulative and
in addition to all other rights and remedies available to them at law
and in equity.
8. REPRESENTATIONS.
(a) Customer represents and warrants that it has the legal right, power and
authority to place and use the Data System as contemplated by this
Agreement, and to use any Software without infringing, misappropriating
or otherwise violating any intellectual property or other rights of any
third party. Customer further represents and warrants that its
placement, arrangement and use of the Data System and Software complies
with the Data System and Software manufacturer's environmental and other
specifications.
(b) Company represents and warrants that it has the legal right, power and
authority, and will continue to possess the legal right and authority
during the Term, to enter into this Agreement and to provide the
Services and such Additional Services as may be provided to Customer
without infringing, misappropriating or otherwise violating any
intellectual property rights or other rights of any third party.
Customer, however, understands and agrees that its rights under this
Agreement are subordinate to and no greater than Company's rights under
its Lease, and in the event that the Lease terminates or is limited for
any reason, this Agreement will automatically terminate or be limited as
well. In the event of any taking by eminent domain for public use,
Customer will acquiesce in and be bound by any action taken or agreement
entered into by Company with respect to that taking, provided that
Customer shall be entitled to terminate this Agreement if Customer's
rights are materially diminished by such taking and provided further
that Customer's obligations hereunder, including its obligation to pay
Monthly Service Charges and Additional Service Charges, shall be reduced
in proportion to the reduction in Services resulting from such taking if
Customer decides not to terminate.
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9. LIMITATION OF LIABILITY AND INDEMNIFICATION.
(a) In no event shall either party be liable to the other party or to any
customer or client of the other party for any indirect, special,
incidental, punitive or consequential damages or damages for lost
profits, lost advertising or other revenue, the cost of replacement
goods, loss of technology, rights or services, loss of data,
interruption or loss of use of the Building, AccessColocenter, Data
System or Software, arising out of or in any way related to this
Agreement or the performance or non-performance of the Services or the
Additional Services or any breach of this Agreement even if the party
has been advised of the possibility of such damages.
(b) Except in the event of the intentional acts of malfeasance or willful
misconduct of Company, its servants, agents or employees, Company shall
not be liable to Customer for, and Customer hereby releases Company
from, any and all compensatory damages resulting from or related in any
way to the performance or non-performance of the Services or the
Additional Services by Company including, without limitation, loss,
suspension or interruption of electrical, UPS, or EPS power or
air-conditioning for the Data System to the Site. Company will not have
any liability to the customers of the Customer for claims arising from
the provision of the Customer's service to its customers (including, but
not limited to, any claim from any customer of Customer for loss of
services, lost profits or lost revenues). Except in the event of the
intentional acts of malfeasance or willful misconduct of Customer, its
servants, agents or employees, Customer shall not be liable to Company
for, and Company hereby releases Customer from, any and all compensatory
damages resulting from or related in any way to the performance or
non-performance by Customer under this Agreement. Customer will not have
any liability to the customers of Company for claims arising from the
performance or non-performance of the Company's service to its
customers.
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(c) Company shall indemnify, defend and hold Customer, its officers,
directors, shareholders, partners, affiliates, members, servants, agents
and employees, harmless from and against any and all claims, lawsuits,
damages, losses, awards, demands, liabilities, judgments and expenses
(including reasonable attorneys' fees and costs) by whomever asserted or
recovered, resulting from the intentional acts of malfeasance or willful
misconduct of Company or any representative thereof which constitutes a
breach by Company of any material provision of this Agreement. Customer
shall indemnify, defend and hold Company, its officers, directors,
shareholders, partners, affiliates, members, servants, agents and
employees, harmless from and against any and all claims, lawsuits,
damages, losses, awards, demands, liabilities, judgments and expenses
(including reasonable attorneys' fees and costs) by whomever asserted or
recovered, resulting from the intentional acts of malfeasance or willful
misconduct of or any representative thereof Customer which constitutes a
breach by Customer of any material provision of this Agreement.
(d) Notwithstanding anything to the contrary in this Agreement and subject
to the other limitations specifically set forth herein, each party's
maximum aggregate liability in connection with this Agreement or any
breach thereof will be limited in the aggregate to the total amount of
Service Charges to be paid by Customer to Company hereunder.
(e) Unless caused by Customer, its agents or contractors, Company shall
defend, indemnify and save Customer harmless from any claims, fines,
penalties, liabilities, losses, damages, costs and expenses that arise
due to any leak, spill, release, discharge, disposal or emission of
hazardous substances that has or will occur either in the
AccessColocenter or the Building prior to or after the Commencement
Date.
10. INSURANCE.
(a) Customer shall maintain the following insurance: comprehensive general
liability insurance for the Site, naming Company as an additional
insured, with limits of not less than $5,000,000.00, combined single
limit for personal injury or death and property damage; this amount may
be a combination of general and excess liability. Customer shall have
the right to self insure for the coverage required under this subsection
(a);
(b) At least thirty (30) days prior to the Commencement Date and thereafter
not later than thirty (30) days prior to the expiration of any then
expiring policy, Customer shall deliver to Company certificates of
insurance, fully endorsed, in compliance herewith. In the event that
Company requires an adjustment of the limits of insurance to be
maintained by Customer in order to reflect insurance changes in the
standards of the telecommunications industry, Customer shall so modify
the policy limits set forth herein within thirty (30) days of the date
of Company's written request therefor and shall provide Company with an
appropriate endorsement certifying to such change.
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(c) Each party agrees to include in each of its insurance policies (insuring
the AccessColocenter and Company's property and business interest
therein, in the case of Company, and insuring Customer's property, the
Data System, the Software and business interest of Customer in the case
of Customer, against loss, damage, or destruction by fire or other
casualty) a waiver of the insurer's right of subrogation against the
other party and, in the case of Customer, also against the Building
Owner, or if such waiver should be unobtainable or unenforceable (A) an
express agreement that such policy shall not be invalidated if the
insured waives the right of recovery against any party responsible for a
casualty covered by the policy before the casualty or (B) any other form
of permission for the release of the other party. If such waiver,
agreement or permission shall not be, or shall cease to be, obtainable
without additional charge or at all, the insured party shall notify the
other party promptly after learning thereof. In such case, if the other
party shall so elect and shall pay the insurer's additional charge
therefor such waiver, agreement or permission shall be included in the
policy, or the other party shall be named as an additional insured
therein, and such policy shall contain, if obtainable, an agreement by
the insurer that the policy will not be canceled without at least ten
(10) days' prior notice to both insureds and that the act or omission of
one insured will not invalidate the policy as to the other insured.
(d) Each party hereby releases the other party and in the case of the
Customer, also the Building Owner, with respect to any claim (including
a claim for negligence) which it might otherwise have against the other
party for loss, damage or destruction with respect to its property
(including its business interest) occurring during the Term and with
respect and to the extent to which it is, or under the terms of this
Section should have been, insured under a policy or policies containing
a waiver of subrogation or permission to release liability or naming the
other party as an additional insured, as provided in subsection (d)
hereof.
(e) Customer shall cause each of its customers whose equipment shall be
placed on the Site (i) to release Company and the Building Owner and
(ii) to obtain from such customer's insurer, a waiver of right of
recovery against, or permission for release of, Company and the Building
Owner, all to the extent that Customer is required to perform acts
similar to those set forth in clauses (i) and (ii) for the benefit of
Company pursuant to this Agreement.
(f) Company shall maintain comprehensive general liability insurance for the
AccessColocenter with limits not less than $8,000,000 combined single
limits for personal injury, death or property damage.
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11. PROPRIETARY AND CONFIDENTIAL INFORMATION. Each party acknowledges and agrees
that any and all information emanating from the other's business in any
form, including without limitation this Agreement, shall be considered
confidential and proprietary information ("Proprietary Information"), and
each party agrees that it will not, during or for a period of three (3)
years after the Term, duplicate, use or disclose, or permit the duplication,
use or disclosure of any Proprietary Information by or to any person not an
employee or agent of the parties unless (i) the express written consent of
the other party is obtained prior to any duplication, use or disclosure;
(ii) any such Proprietary Information is a matter of public knowledge or
becomes generally available to the public other than by breach of this
Agreement; (iii) any such Proprietary Information is previously and lawfully
known to the other party prior to disclosure; (iv) any such Proprietary
Information was obtained by a third party who itself is lawfully in
possession of such Proprietary Information and is not subject to any
obligation of confidentiality; or (v) compelled to do so by law or
appropriate legal process. In the event that the disclosure of Proprietary
Information is compelled by law or appropriate legal process, the recipient
shall provide the disclosing party with prompt written notice so that the
disclosing party may seek a protective order or other appropriate remedy or
waive compliance with this Section. In the event that the disclosing party
is unable to obtain a protective order or other appropriate remedy, or if
the disclosing party so directs, the recipient shall, and shall cause its
employees to, exercise its reasonable best efforts to obtain a protective
order or other appropriate remedy at the disclosing party's reasonable
expense. Failing the entry of a protective order or other appropriate remedy
or receipt of a waiver hereunder, the recipient shall furnish only that
portion of the Proprietary Information that written opinion of its counsel
advises is legally required to be disclosed and shall exercise its
reasonable best efforts to obtain reliable assurance that confidential
treatment shall be accorded such Proprietary Information. Each party agrees
that on the Expiration Date it shall return any Proprietary Information in
its possession to the other party.
12. ASSIGNMENT. Customer shall not sublease, sublicense, transfer or assign this
Agreement, in whole or in part, or permit the Site to be used by any other
party without the prior written consent of Company, which consent shall not
be unreasonably withheld, conditioned or delayed. Any assignment by Customer
in breach of this Section shall be void. However, Customer shall be
permitted to assign this Agreement without Company's consent to (i) any
entity which directly or indirectly controls, is controlled by or is under
common control with Customer or (ii) to any entity with which Customer shall
become merged or consolidated or to which all or substantially all assets of
Customer are transferred; provided, however, that (x) any such assignee
shall assume all of the obligations of Customer hereunder from and after the
date of such assignment by means of a written instrument of assumption which
shall be delivered to Company prior to the effective date of such assignment
and (y) no such assignment shall serve to release the assignor from any
liability under this Agreement and such assignor and such assignee shall
thereafter remain jointly and severally liable under this Agreement. The
Company may assign this Agreement without the consent of Customer; provided,
however, that no such assignment shall serve to release the assignor from
any liability under this Agreement and such assignor and such assignee shall
thereafter remain jointly and severally liable under this Agreement.
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13. FORCE MAJEURE. Except for the payment of Service Charges, Additional Service
Charges or other charges due by Customer, Company or Customer shall not be
liable to the other party for any failure to perform, or delays in the
performance of, the Services required hereunder if such delays or failures
are due to strikes, labor difficulties, inclement weather, fires,
explosions, acts of God, vandalism, power outage, earthquake, acts of
terrorism, riots, acts of government, acts of the Building Owner or any
tenant or occupant of the Building, or other causes beyond the reasonable
control of Company or Customer.
14. NOTICES. Any notice, statement, demand, consent, approval or other
communication required or permitted to be given, rendered or made by either
party to the other pursuant to the terms of this Agreement shall be in
writing and shall be deemed to have been properly given, rendered or made
only if hand delivered, delivered by any nationally recognized over-night
delivery service or sent by United States registered or certified mail,
return receipt requested addressed to the other party at the following
address:
As to Customer: AT&T Corp.
000 Xxxxx Xxxxx Xxxxxx
Xxxx 0000X0
Xxxxxxx Xxxxx, XX 00000
Attn: Lease Administration
With a copy to: AT&T Corp.
000 Xxxxx Xxxxx Xxxxxx
Room 5364B2
Xxxxxxx Xxxxx, XX 00000
Attn: GRE Legal Department
As to Company: AccessColo, Inc.
00 Xxxxxxx Xxxxxx, Xxxxx 000
Xxxxxxxxxx, Xxx Xxxxxx 00000
Attn: General Counsel
With a copy to: Xxxxxxxxxxx & Xxxxxxxx LLP
1251 Avenue of the Xxxxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: Xxxxxx Xxxxxxxx, Esq.
Any such notices shall be deemed to have been given, rendered or made on the
date received if delivered by hand or by a nationally recognized overnight
delivery service or on the second day after the date so mailed unless mailed
outside the State of New Jersey in which case it shall be deemed to have
been given, rendered or made on the third business day after the date so
mailed. Either party may, by notice as aforesaid, designate a different
address or addressee for notices, statements, demands, consents, approvals
or other communications intended for it.
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16. MISCELLANEOUS.
(a) This Agreement is a license agreement for the purposes specified herein
only and shall at no time be considered a lease, sublease or other
agreement for use or occupancy of the Site or any other premises in the
Building. Customer acknowledges that it has been granted only a
non-exclusive license to place its Data System in the Site, and that it
has not been granted any real property interests in the Site. Customer
acknowledges that other co-locating customers may have access to the
AccessColocenter for colocation purposes. In no event will Company be
liable for any damage to Customer's Equipment or any interruption to
Customer's service caused by any action or inaction of another
collocating party, or for failure to provide security escort for another
colocating party.
(b) Customer shall fully comply with the rules and regulations attached
hereto as Schedule D, as the same be amended or supplemented hereafter,
provided such rules and regulations shall be enforced in a
nondiscriminatory manner. Said rules and regulations shall not increase
Customer's obligations under this Agreement.
(c) Each party expressly acknowledges and agrees that the other party has
not made and is not making, and each party, in executing and delivering
this Agreement, is not relying upon, any warranties, representations,
promises or statements, except to the extent that the same are expressly
set forth in this Agreement. All understandings and agreements
heretofore had between the parties are merged in this Agreement, which
alone fully and completely express the agreement of the parties and
which are entered into after full investigation. Neither party has
relied upon any statement or representation not embodied in this
Agreement.
(d) No agreement shall be effective to change, modify, waive, release,
discharge, terminate or effect an alteration of this Agreement in whole
or in part, unless such agreement is in writing, refers expressly to
this Agreement and is signed by the both parties.
(e) It is the express intention of the parties that no other party be
entitled to the benefits of this Agreement as a third party beneficiary.
(f) If Company or Customer shall bring any action for relief against the
other, arising out of this Agreement, the losing party shall pay the
prevailing party reasonable attorneys fees and costs.
(g) Except as otherwise expressly provided in this Agreement, the
obligations under this Agreement shall bind and benefit the successors
and assigns of the parties hereto with the same effect as if mentioned
in each instance where a party is named or referred to.
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(h) Customer shall, within twenty (20) days after receipt of written request
from Company, execute a certificate addressed to Company and/or its
designee stating (i) the date to which Service Charges and Additional
Service Charges have been paid, (ii) whether Customer has any
outstanding claims against Company, whether Company is otherwise in
default under this Agreement, and the amount of such claim or the nature
of such default, and (iii) whether Customer is in default beyond any
applicable cure period under this Agreement.
(i) This Agreement shall be governed by and construed in accordance with the
laws of the State of New Jersey, without regard for conflicts of laws
principles. If any provision of this Agreement shall be deemed invalid
or unenforceable, the remainder of this Agreement shall not be affected
and shall be enforced to the extent permitted by law.
(j) WAIVER OF JURY TRIAL. EACH OF THE PARTIES HERETO HEREBY IRREVOCABLY
WAIVES, TO THE FULLEST EXTENT PERMITTED BY LAW, ANY AND ALL RIGHT TO
TRIAL BY JURY IN ANY LEGAL PROCEEDING ARISING OUT OF OR RELATING TO THIS
AGREEMENT.
(k) The terms and provisions contained in this Agreement that by their sense
and context are intended to survive the performance thereof by the
parties hereto shall survive the completion of performance and
termination of this Agreement, including, without limitation, the making
of any and all payments due hereunder.
(l) Words having well-known technical or trade meanings shall be so
construed, and all listings of items shall not be taken to be exclusive,
but shall include other items, whether similar to or dissimilar to those
listed, as the context reasonably requires.
(m) No rule of construction requiring interpretation against the draftsman
hereof shall apply in the interpretation of this Agreement.
(n) Each of the parties hereby submits to the non-exclusive jurisdiction of
the United States District Court for the District of New Jersey and of
any New Jersey State Court sitting in Xxxxxx County for the purposes of
all legal proceedings relating to the execution, validity or enforcement
of this Agreement. Each of the parties hereto hereby irrevocably waives,
to the fullest extent permitted by law, any objection which it may now
or hereafter have to the laying of the venue of any such proceeding
brought in such a court and any claim that any such proceeding brought
in such a court has been brought in an inconvenient forum.
(o) (i) Customer represents that Customer has dealt directly with and only
with Xxxxxxx & Wakefield of New Jersey, Inc. (the "Listed Broker")
(whose commission shall be paid by Company pursuant to separate
agreement), in connection with this Agreement and agrees to defend,
indemnify and save harmless Company against all claims, liabilities,
losses, damages, costs and expenses (including reasonable attorneys'
fees and other costs of defense) arising from Customer's breach of this
representation.
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(ii) Except for Customer's breach of this subsection (i), Company
hereby agrees to defend, indemnify and save harmless Customer against
all claims, liabilities, losses, damages, costs and expenses (including
reasonable attorneys' fees and other costs of defense) arising from the
claims or demands of the Listed Broker and any other brokers or finders
for any commission alleged to be due any such brokers or finders in
connection with this Agreement or the transactions contemplated hereby.
(p) The captions, headings and titles in this Agreement are solely for
convenience of reference and shall not affect its interpretation.
(q) If either party is a corporation or limited liability company, each
person executing this Agreement on behalf of such party hereby
covenants, represents and warrants that such party is duly incorporated
or organized and qualified, and authorized to do business in the State
of New Jersey; and that each person executing this Agreement on behalf
of such party is duly authorized to execute, acknowledge and deliver
this Agreement to the other party.
(r) The waiver of any breach or default of this Agreement shall not
constitute a waiver of any subsequent breach or default and shall not
act to amend, supplement or negate the rights of the waiving party.
(s) All Exhibits or Schedules to this Agreement are hereby incorporated into
this Agreement, and references to "this Agreement" shall include all
Exhibits or Schedules.
(t) This Agreement may be executed in one or more counterparts, each of
which shall be original, and all of which shall constitute one and the
same instrument.
(u) Company and Customer are independent contractors and this Agreement
shall not serve to establish any relationship or partnership, joint
venture, employment, franchise or agency between Company and Customer.
Neither Company nor Customer have the power to bind the other or incur
obligations on the part of the other without the other's prior written
consent, except as otherwise expressly provided for herein.
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IN WITNESS WHEREOF, the parties hereto have set their hand and seal on
the date first above written.
ATTEST: ACCESSCOLO, INC.
/s/ Xxxx X. Xxxxxxxx BY: /s/ A. Xxxx Xxxx
-------------------------------- --------------------------------
Name: A. Xxxx Xxxx
Title: President
ATTEST: AT&T CORP.
/s/ Xxxxxxx X. Xxxxx BY: /s/ Xxxx X. Xxxxxx
-------------------------------- --------------------------------
Name: Xxxx X. Xxxxxx
Title: Director, Real Estate
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