EXHIBIT 10.2
TERREMARK SYSTEM LICENSE AGREEMENT
This License Agreement (the "Agreement") is made and entered into as of this 13
day of June 2002 by and between TERREMARK WORLDWIDE, INC., a Delaware
corporation ("Licensor"), having offices at 0000 Xx. Xxxxxxxx Xxxxx, Xxxxx, XX
00000 and NAP DE LAS AMERICAS - MADRID, S.A., a Spanish limited liability
company having offices at Camara Oficial de Comercio e Industria de Madrid,
Plaza de la Independencia, n(0)1 Madrid, Spain (the "Licensee"). Licensor and
Licensee are each individually referred to herein as a "Party" and are
collectively referred to as the "Parties".
WHEREAS, Licensor and its Affiliates (defined below) have developed and continue
to develop methods of operating carrier-neutral Tier-1 Network Access Points
("Tier-1 NAPs") that feature a distinctive facility format and utilize
distinctive uniform business formats, signs, equipment, layouts, systems,
Know-how (defined below), methods, procedures, inventory specifications,
training, maintenance, refurbishment, remodeling and refit procedures, designs
and marketing and advertising standards and formats, all of which Licensor may
modify from time to time (the "Terremark System"); and
WHEREAS, Licensor and its Affiliates operate and grant to certain qualified
persons or entities, the right to develop and use the Terremark System; and
WHEREAS, Licensee was formed for the purpose of developing, owning and operating
carrier-neutral Tier-1 NAPs in the Territory using the Terremark System (the
"Business"); and
WHEREAS, Licensor wishes to license to Licensee the exclusive use of the
Terremark System in the Territory;
NOW, THEREFORE, in consideration of the mutual covenants and agreements
contained herein, the Parties agree as follows:
1. LICENSE OF INTELLECTUAL PROPERTY
1.1 GRANT OF RIGHTS. In exchange for the consideration set forth in paragraph
1.2 and the Stockholder's Agreement among Licensor, Licensee, and Licensee's
Stockholders on 31 May, 2002 (the "Stockholders Agreement"), Licensor grants to
Licensee, and Licensee accepts, a nontransferable, royalty-free, fully-paid and
exclusive right and license to use, copy and exploit all the intellectual
property, Know-how, Licensor's Confidential Information (as defined below),
Copyrighted Works and Marks comprising the Terremark System, including without
limitation, all trade secrets, know-how, show-how, methodologies and processes
set forth on Schedule A hereto (collectively, the "Intellectual Property") in
connection with operating the Business in the Territory during the Term (the
"License").
(i) The term "Know-how" means a package of non-patented practical
information resulting from experience and testing by Licensor
that is secret, substantial and identified and forms part of
the Terremark System. For these purposes "secret" means that
the know-how as a body or in its precise configuration is not
easily accessible and "substantial" means that the know-how
includes information that is important and useful to Licensee
in developing and operating Tier-1 NAPs in Spain.
(ii) The term "Marks" mean the trademarks, service marks and other
commercial symbols which Licensor authorizes its licensees to
use from time to time to identify the products and services
offered used in connection with the Terremark System, whether
by TerreNAP Data Center or otherwise, including the marks "NAP
of the Americas," "NAP de Las Americas" and "TerreNAP" and the
Know-how.
(iii) The term "Copyrighted Works" means certain copyrighted or
copyrightable works that are created by or for Licensor
(including, without limitation, the Methods and Procedures
Manuals, Basis of Design Drawings and Specifications) and
which Licensor licenses to Licensee from time to time for use
in the operation of the Business in the Territory.
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(iv) The term "Affiliate" shall mean any person or entity that (a)
directly or indirectly owns or controls, (b) is directly or
indirectly owned or controlled by, or (c) is under common
control with Licensor or Licensee, as applicable. For purposes
of this definition, "control" means holding a majority of the
equity or otherwise having the power to direct or cause the
direction of the management and policies of an entity.
(v) The term "Territory" shall mean the country of Spain as its
borders and possessions are constituted on the date hereof.
(vi) No change in the ownership or control of Licensee contemplated
by the Stockholders Agreement shall be deemed to violate the
provisions of this Agreement prohibiting Licensee from
transferring the License.
Licensee acknowledges that Licensor is engaged, or may in the future engage, in
the Business in territories other than the Territory, and agrees that Licensor
has the right use and exploit the Intellectual Property in connection therewith
outside the Territory.
1.2 CONSIDERATION. Licensee shall grant to Licensor (or its designated
Affiliate) an initial ten percent (10%) equity interest in Licensee, with the
right to acquire up to an additional thirty -percent (30%), in accordance with
the provisions of the Stockholders Agreement (for an aggregate of 40%). In
addition, as a condition precedent to this License becoming effective, Licensee
shall have purchased and fully paid for 5,000,000 shares of Licensor common
stock pursuant that certain Stock Purchase Agreement between Licensor and
Licensee dated 11 June, 2002.
1.3 REPRESENTATIONS AND WARRANTIES. Licensor represents and warrants that (i) it
owns or has full right and authority to use, exploit and license to Licensee all
the Intellectual Property; (ii) the Intellectual Property is free and clear of
any outstanding injunction, judgment, order or decree; (iii) this License
Agreement and the transactions contemplated hereby have been duly authorized by
all necessary corporate action on the part of Licensor; (iv) the Intellectual
Property licensed to Licensee hereunder comprises all of Licensor's intellectual
property necessary for Licensee to operate the Business; (v) no action, suit,
claim or demand is pending or, to the knowledge of Licensor, is threatened which
challenges the ownership, validity, enforceability, license or use of any item
of Intellectual Property; (vi) the use or exploitation of the Intellectual
Property by Licensee in accordance with this Agreement will not interfere with,
infringe upon, misappropriate or otherwise come into conflict with any
intellectual property or other proprietary right of any third party; and (vii)
to the extent that any interest in the Intellectual Property has been pledged or
encumbered by Licensor, Licensor has received no notice of default under any
such pledge or security agreement and has committed no act that, with the
passage of time or the giving of notice, would constitute an event of default
thereunder.
2. TERM. Subject to the provisions of this Agreement, the term of the License
granted hereby to Licensee (the "Term") for the use of (a) the Marks shall be
for twenty (20) years and (b) all other Intellectual Property licensed hereunder
shall be for 15 years.
3. THE MARKS AND COPYRIGHTED WORKS.
3.1 OWNERSHIP AND GOODWILL. Licensee acknowledges that the Marks, Know-how and
Copyrighted Works are the sole and exclusive property of Licensor and its
Affiliates. Licensee acknowledges that its License to use the Marks, Know-how
and Copyrighted Works are derived solely from this Agreement and are limited to
the operation of the Business by Licensee pursuant to and in compliance with
this Agreement and the applicable standards, specifications, and operating
procedures prescribed by Licensor from time to time during the Term that are
designed to reasonably ensure that the quality of the products and services
provided by Licensee are commercially comparable to those provided by Licensor
or its Affiliates under the Terremark System. Any unauthorized use of the Marks,
Know-how and Copyrighted Works or any attempt by Licensee to appropriate or
claim ownership of any other name, xxxx, symbol or designation used by Licensor
or its Affiliates anywhere in the world, shall constitute a breach of this
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Agreement and an infringement of the rights of Licensor and its Affiliates.
Licensee acknowledges and agrees that all usage of the Marks, Know-how,
Intellectual Property and Copyrighted Works by Licensee and any goodwill
established thereby shall inure to the benefit of Licensor and that this
Agreement does not confer any goodwill or other interest in the Marks, Know-how
or Copyrighted Works upon Licensee, other than as expressly set forth in this
Agreement. All provisions of this Agreement applicable to the Marks, Know-how
and Copyrighted Works shall apply to any other trademarks, service marks,
commercial symbols and copyrighted materials hereafter authorized for use by or
licensed to Licensee by the Licensor whether or not registered or subject to
legal protection in the Territory. In the event Licensee acquires rights in any
Marks, Know-how Copyrighted Works or other trademarks, service marks, commercial
symbols and copyrighted materials from Licensor and in connection with the
operation of the Business the Territory, Licensee undertakes that it will
execute all documents in form and substance reasonably acceptable to Licensee
and reasonably necessary or desirable to vest ownership of such rights in the
Licensor or its Affiliates.
3.2 LIMITATIONS ON USE OF MARKS AND COPYRIGHTED WORKS. Except for the Xxxx "NAP
de Las Americas," Licensee shall not use any Xxxx as part of any corporate or
trade name or with any prefix, suffix, or other modifying words, terms, designs,
or symbols, or in any modified form, nor may Licensee use any Xxxx or
Copyrighted Work in connection with anything other than the Business or in any
other manner not expressly authorized herein or in any other writing by
Licensor. Licensee agrees to display the Marks in the manner reasonably
prescribed by Licensor and in connection with only those advertising and
marketing materials approved by Licensor, which approval shall not be
unreasonably withheld. Licensee agrees to give such notices of trademark and
service xxxx registrations and appropriate copyright notices as Licensor
reasonably specifies. If Licensor authorizes Licensee to prepare any adaptation,
translation or derivative work of the Copyrighted Works, Licensee hereby agrees
that such adaptation, translation or derivative work shall be the property of
Licensor and be deemed included in the Intellectual Property Licensed to
Licensee under this Agreement, and Licensee hereby assigns all its right, title
and interest therein to Licensor. Licensee agrees to execute any documents in
form and substance reasonably acceptable to Licensee, in recordable form, which
Licensor determines are reasonably necessary to reflect ownership by Licensor of
such work. Licensee shall submit all such adaptations, translations or
derivative works to Licensor for approval prior to use, which approval shall not
be unreasonably withheld.
3.3 NOTIFICATION OF INFRINGEMENTS AND CLAIMS. Licensee shall notify Licensor
promptly after it acquires knowledge of any apparent infringement of or
challenge to Licensee's use of any Xxxx, Know-how, Copyrighted Work, Licensor's
Confidential Information or other intellectual property rights licensed under
this Agreement, or claim by any person of any rights in any Xxxx, Know-how,
Copyrighted Work, Licensor's Confidential Information or other intellectual
property rights licensed under this Agreement, and Licensee shall not
communicate with any person other than Licensee's counsel, Licensor and its
counsel in connection with any such infringement, challenge or claim. Licensor
shall have sole discretion to take such action as it deems appropriate in
connection with the foregoing, and the right to control exclusively any
settlement, litigation or other proceeding arising out of any such alleged
infringement, challenge or claim or otherwise relating to any Xxxx, Know-how,
Copyrighted Work, Licensor's Confidential Information or other intellectual
property rights licensed under this Agreement, and to retain all proceeds of any
litigation or settlement. Licensee agrees to execute any and all instruments and
documents, render such assistance, and do such acts and things as may, in the
opinion of Licensor's counsel, be reasonably necessary or advisable to protect
and maintain the interests of Licensor and its Affiliates in any litigation or
other proceeding or to otherwise protect and maintain the interests of Licensor
and its Affiliates in the Marks, Know-how, Copyrighted Works, Licensor's
Confidential Information and other intellectual property rights licensed under
this Agreement.
3.4 RECORDAL OF LICENSES AND REGISTERED USER AGREEMENTS. Licensee shall, at the
request and expense of Licensor, do all acts and execute all documents
reasonably necessary or desirable in Licensor's opinion for establishing
Licensee as a user of the Marks hereunder and where required for the
registration of Licensee's permitted use with governmental agencies.
4. INDEMNIFICATION.
4.1 INDEMNIFICATION BY LICENSEE. Licensee covenants and agrees to defend,
indemnify and save and hold harmless Licensor, together with its officers,
directors, partners, shareholders, employees, trustees, affiliates, beneficial
owners, attorneys and representatives, from and against any and all losses,
costs, expenses, liabilities, claims or legal damages (including, without
limitation, reasonable fees and disbursements of counsel and accountants and
other reasonable costs and expenses incident to any actual or threatened claim,
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TERREMARK - NAP/MADRID - PROPRIETARY & CONFIDENCIAL
suit, action or proceeding, whether incurred in connection with a claim against
Licensee or a third party claim) arising out of or resulting from: (i) any
material inaccuracy in or breach of any representation, warranty, covenant or
agreement made by Licensee in this Agreement; (ii) the failure of Licensee to
perform or observe fully any material covenant, agreement or provision to be
performed or observed by it pursuant to this Agreement..
4.2. INDEMNIFICATION BY LICENSOR. Licensor covenants and agrees to defend,
indemnify and save and hold harmless Licensee, together with its officers,
managers, partners, members, employees, trustees, affiliates, beneficial owners,
attorneys and representatives, from and against any and all losses, costs,
expenses, liabilities, claims or legal damages (including, without limitation,
reasonable fees and disbursements of counsel and accountants and other
reasonable costs and expenses incident to any actual or threatened claim, suit,
action or proceeding, whether incurred in connection with a claim against
Licensor or a third party claim) arising out of or resulting from: (i) any
material inaccuracy in or breach of any representation, warranty, covenant or
agreement made by Licensor in this Agreement; and (ii) the failure of Licensor
to perform or observe fully any material covenant, agreement or provision to be
performed or observed by it pursuant to this Agreement; (iii) Licensee's
compliance with the terms and provisions of Section 3.3, above; and (iv) in
connection with any infringement or claims of infringement of the Intellectual
Property on the intellectual proprietary rights of third parties
4.3. PROCEDURE. Each party entitled to be indemnified pursuant to Sections 4.1
and 4.2 (each, an "Indemnified Party") shall notify the other party in writing
of any action against such Indemnified Party in respect of which the other party
is or may be obligated to provide indemnification on account of Section 4.1 or
4.2, promptly after the receipt of notice or knowledge of the commencement
thereof. The omission of any Indemnified Party so to notify the other party of
any such action shall not relieve such other party from any liability which it
may have to such Indemnified Party, except to the extent the other party shall
have been materially prejudiced by the omission of such Indemnified Party so to
notify it pursuant to this Section 4.3. In case any such action shall be brought
against any Indemnified Party and it shall notify the other party of the
commencement thereof, the other party shall be entitled to participate therein
and to assume and pay for the defense thereof, with counsel reasonably
satisfactory to such Indemnified Party, and after notice from it to such
Indemnified Party of its election so to assume and pay for the defense thereof,
the other party will not be liable to such Indemnified Party under Section 4.1
or 4.2 for any legal or other expense subsequently incurred by such Indemnified
Party with other counsel in connection with the defense thereof nor for any
settlement thereof entered into without the consent of the other party;
PROVIDED, HOWEVER, that (i) if the other party shall elect not to assume the
defense of such claim or action or (ii) if the Indemnified Party reasonably
determines (x) that there may be a conflict between the positions of the other
party and of the Indemnified Party in defending such claim or action or (y) that
there may be legal defenses available to such Indemnified Party different from
or in addition to those available to the other party, then separate counsel for
the Indemnified Party shall be entitled to participate in and conduct the
defense, in the case of (i) and (ii)(x), or such different defenses, in the case
of (ii)(y), and the other party shall be liable for any reasonable legal or
other expenses incurred by the Indemnified Party in connection with the defense.
4.4. INDEMNIFICATION NON-EXCLUSIVE. The foregoing indemnification provisions are
in addition to, and not in derogation of, any statutory, equitable or common-law
remedy any party may have for breach of representation, warranty, covenant or
agreement.
5. CONFIDENTIAL INFORMATION. Either Party and its Affiliates (the "Receiving
Party") possess and may further develop and acquire certain confidential and
proprietary information and trade secrets including but not limited to the
categories of information, methods, techniques, procedures, and knowledge
developed or to be developed by the other Party or its Affiliates (the
"Disclosing Party") (the "Confidential Information"). Licensor shall disclose to
Licensee such Confidential Information as may be required for the development
and operation of the Business in the Territory. Such disclosures may be made
during training and in guidance and assistance furnished to Licensee under this
Agreement. The Receiving Party may also learn or otherwise obtain from the
Disclosing Party additional or other Confidential Information during the term
hereof. The Receiving Party acknowledges and agrees that neither the Receiving
Party nor any other person or entity will acquire any interest in or right to
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use the Disclosing Party's Confidential Information, other than as may be set
forth herein, and that the use or duplication of the Confidential Information
for any other purpose would constitute an unfair method of competition with the
Disclosing Party. The Receiving Party agrees to disclose the Confidential
Information to its employees, consultants, agents or other advisors or
Stockholders who are bound by nondisclosure obligations not to disclose the
Confidential Information and only to the extent reasonably necessary for the
development and operation of the Business in the Territory. The Receiving Party
shall take all other steps reasonably required and/or appropriate to ensure
compliance with the obligations set forth herein.
5.1. NONDISCLOSURE OBLIGATION. The Receiving Party acknowledges and agrees that
the Confidential Information is confidential to and a valuable asset of the
Disclosing Party, is proprietary, includes trade secrets of the Disclosing Party
and is disclosed to the Receiving Party solely on the condition that the
Receiving Party its Stockholders, employees, consultants, agents or other
advisors who have access to Confidential Information agree, and the Receiving
Party does hereby agree that the Receiving Party:
(i) will not use the Confidential Information in any business or
capacity other than for the purpose of the development and
operation of the Business;
(ii) will maintain at all times the absolute confidentiality of the
Confidential Information and not disclose it to any third
parties;
(iii) will not at any time make unauthorized copies of any portion
of the Confidential Information disclosed in written or other
tangible form; and
(iv) will adopt and implement all reasonable procedures prescribed
from time to time by the Disclosing Party to prevent
unauthorized use or disclosure of the Confidential
Information.
Nothing contained herein shall be construed to prohibit Licensee from using
Licensor's Confidential Information in connection with the development and
operation of the Business.
5.2. EXCEPTIONS TO NONDISCLOSURE OBLIGATION. Notwithstanding anything to the
contrary contained in this Agreement, the restrictions on disclosure and use of
the Confidential Information shall not apply to the following:
(i) Confidential Information if and only to the extent that it is
or has become generally known or easily accessible, other than
through disclosure (whether deliberate or inadvertent) by the
Receiving Party, its employees, consultants, agents, advisors
or Stockholders or by third parties in violation of
confidentiality obligations to the Disclosing Party, or become
available to the Receiving Party on a non-confidential basis
from a source that s entitled to so disclose it; and
(ii) the disclosure of the Confidential Information in judicial or
administrative proceedings to the extent that the Receiving
Party is legally compelled to disclose such information,
provided Receiving Party has notified the Disclosing Party
prior to disclosure and shall have used its best efforts to
obtain, and shall have afforded the Disclosing Party the
opportunity to obtain, an appropriate protective order or
other assurance satisfactory to the Disclosing Party of
confidential treatment for the information required to be so
disclosed.
5.3. DERIVATIVE WORKS. Licensee agrees to disclose to Licensor all ideas,
concepts, methods, techniques and products relating to the development and
operation of carrier-neutral Tier-1 NAPs conceived or developed by Licensee
during the term of this Agreement. Licensee hereby grants to Licensor a
perpetual, non-exclusive and worldwide right to use such works and license same
for use in all carrier-neutral Tier-1 NAPs operated by Licensor or its
Affiliates. Licensor and its Affiliates shall have no obligation to make any
payment to Licensee or its employees, Stockholders or Affiliates with respect to
any such idea, concept, method, technique or product.
5.4. The Parties agree to keep the terms and conditions of this Agreement
confidential and not to disclose the contents of this Agreement to any third
party (other than to each Party's attorneys and accountants for purposes of
their rendering their professional services to Licensee) except as may otherwise
be required by law.
5.5. All rights and obligations under this Section 5 shall remain in full force
and effect notwithstanding any termination of this Agreement.
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6. TERMINATION OF AGREEMENT.
6.1 Termination. If a Party materially breaches this Agreement, the
non-breaching party may terminate this Agreement effective 30 days after
delivery of written notice of termination if the non-breaching Party gives
written notice of such breach to the breaching Party and the breaching Party
does not correct such breach within 30 days after delivery of such notice of
material breach; or if such breach cannot reasonably be cured within 30 days
after delivery of such notice, undertake within 10 days after delivery of such
notice, and continue until completion, efforts to cure such breach.
6.2 Licensor may terminate this license immediately if Licensee or any of its
Stockholders challenges or seeks to claim rights in or to challenge the validity
of (a) the Marks or Licensor's rights in any other names, marks or commercial
symbols used by Licensor or its Affiliates anywhere in the world or Licensed
hereunder by Licensee in connection with the operation or promotion of the
Business, whether registered or unregistered, (b) the Licensor Confidential
Information, (c) the Know-how, (d) the Copyrighted Works or (e) any other
intellectual property rights licensed under this Agreement.
6.3 In the event (i) of any termination by Licensee pursuant to this section;
(ii) that Licensor makes an assignment of the Intellectual Property for the
benefit of creditors; (iii) that any petition shall be filed by or against
Licensor under any section or chapter of the United States Bankruptcy Code, as
amended, or under any similar law or statute of the United States or any state
thereof, which petition is not dismissed within sixty (60) days after the filing
thereof, or Licensor shall be adjudged bankrupt or insolvent in proceedings
filed thereunder; or (iv) a receiver or trustee shall be appointed for all or
substantially all of the assets of Licensor; then, Licensee shall, effective as
of the date of such termination automatically and without further action, have a
perpetual license to use the Intellectual Property without further charge or
fee, but otherwise subject to and in accordance with the provisions and
limitations of this Agreement.
7. RIGHTS AND OBLIGATIONS UPON TERMINATION OR EXPIRATION OF THIS AGREEMENT.
7.1 Upon termination or expiration of the Term, Licensee shall return the
Intellectual Property to Licensor. All obligations of Licensor and Licensee
under this Agreement that expressly or by their nature survive or are intended
to survive the expiration or termination of this Agreement or the Agreement Term
shall continue in full force and effect subsequent to and notwithstanding its
expiration or termination and until they are satisfied in full or by their
nature expire.
7.2 Licensee shall not at any time after expiration of the Term or termination
of this Agreement adopt, use or claim ownership rights adverse to those of
Licensor or its Affiliates in or to any Licensor name, trade name, trademark,
service xxxx, logo, Know-how component, get up, commercial symbol, design or
device (including, without limitation, the Marks, the Know-how and the
Copyrighted Works) used by Licensor or its Affiliates anywhere in the world or
used by Licensee in connection with the operation or promotion of the Business.
This undertaking and agreement shall survive the termination or expiration of
this Agreement and shall be binding on Licensee, its officers, owners,
directors, agents, employees, heirs, successors and assigns.
7.3 Nothing in this Agreement shall prohibit Licensee from challenging the
validity of the intellectual property rights licensed under this Agreement.
Licensee acknowledges and agrees that if it were to so challenge the validity of
such rights, the provisions of Section 6.2 of this Agreement shall apply. With
respect to the provisions of this Agreement regarding restrictions upon Licensee
of the use of any name, trade name, trade xxxx, service xxxx, logo, Know-how
component, get up, commercial symbol, design or device of Licensor subsequent to
the expiration or termination of this Agreement, nothing in this Agreement shall
be interpreted as granting additional rights to Licensor that it would not
otherwise have under applicable law.
8. MISCELLANEOUS.
8.1 PUBLICITY. Neither of the Parties shall issue, publish or disseminate, or
cause to be issued, published or disseminated, any press release or public
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communication relating to this Agreement or any of the transactions contemplated
herein using the name or any trade xxxx, logo, trade name, Know-how or other
intellectual property or otherwise referring to Licensor or Licensee, without
the prior written consent of such other party.
8.2 LIABILITY: In no event shall either party be liable, one to the other, for
any indirect, special or consequential damages arising out of or in connection
with this Agreement.
8.3 EXCUSABLE DELAYS: In no event shall either party be liable to the other for
any delay or failure to perform due to causes beyond the control and without the
fault or negligence of the party claiming excusable delay.
8.4 GOVERNING LAW; SUBMISSION TO JURISDICTION. This Agreement shall be governed
by and construed in accordance with the laws of the State of Florida applicable
to contracts made and to be performed entirely within such State. Each of the
Parties hereby submits to the nonexclusive jurisdiction of the courts in
Miami-Dade County for purposes of all legal proceedings arising out of or
relating to this Agreement and the transactions contemplated hereby. Each of the
Parties 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. In the event
of any litigation regarding the rights and obligations under this Agreement, the
prevailing party shall be entitled to recover reasonable attorneys' fees and
court costs in addition to any other relief that may be granted. The "prevailing
party" means the party who receives substantially the relief desired, whether by
settlement, dismissal, summary judgment, judgment or otherwise after the
expiration of the time to appeal any such judgment.
8.5 WAIVER OF JURY TRIAL. Each of the Parties hereby waives its rights to a jury
trial of any claim or cause of action based upon or arising out of this
Agreement or the subject matter hereof. The scope of this waiver is intended to
be all-encompassing of any and all disputes that may be filed in any court and
that relate to the subject matter of this transaction, including, without
limitation, contract claims, tort claims, breach of duty claims, and all other
common law and statutory claims. This Section has been fully discussed by each
of the Parties and these provisions shall not be subject to any exceptions. Each
of the Parties hereby further warrants and represents that such party has
reviewed this waiver with its legal counsel, and that such party knowingly and
voluntarily waives its jury trial rights following consultation with legal
counsel. This waiver is irrevocable, meaning that it may not be modified either
orally or in writing, and this waiver shall apply to any subsequent amendments,
supplements or modifications to (or assignments of) this Agreement. In the event
of litigation, this Agreement may be filed as a written consent to a trial
(without a jury) by the court.
8.6 COUNTERPARTS/CAPTIONS AND HEADINGS. This Agreement may be executed in
counterparts, each of which shall be deemed an original, and all of which
together shall be deemed to constitute one and the same instrument. The captions
and headings used in this Agreement are for convenience only and are not to be
considered in construing or interpreting this Agreement.
8.7 NOTICES. Unless otherwise provided, any notice or other communication
required or permitted to be given or effected under this Agreement shall be in
writing and shall be deemed effective upon personal or facsimile delivery to the
party to be notified or two business days after deposit with an internationally
recognized courier service, delivery fees prepaid, and addressed to the party to
be notified at the following respective addresses, or at such other addresses as
may be designated by written notice; PROVIDED, HOWEVER, that any notice of
change of address shall be deemed effective only upon receipt:
If to Licensor: Terremark Worldwide, Inc.
0000 Xxxxx Xxxxxxxx Xxxxx
Xxxxx, XX 00000
Attn: Chief Operating Officer
Fax: 000-000-0000
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With a copy to
Terremark Worldwide, Inc.
0000 Xxxxx Xxxxxxxx Xxxxx
Xxxxx, XX 00000
Attn: General Counsel
Fax: 000-000-0000
If to Licensee: NAP de Las Americas - Madrid, X.X.
Xxxxxx Oficial de Comercio e Xxxxxxxxx xx Xxxxxx, Xxxxx xx
xx Xxxxxxxxxxxxx, x(0)0 Xxxxxx, Xxxxx
Attn: President
Fax:
8.8 SEVERABILITY/ENTIRE AGREEMENT/COSTS. If one or more provisions of this
Agreement are held to be unenforceable under applicable law, such provisions
shall be excluded from this Agreement and the balance of this Agreement shall be
interpreted as if such provision were so excluded and shall be enforceable in
accordance with its terms. This Agreement (and the Exhibits hereto) constitutes
the entire agreement among the parties with respect to the subject matter hereof
and supersedes all prior agreements, understandings and discussions between
them. Except as otherwise provided for herein, each of the Parties shall pay all
expenses incurred by it or on its behalf in connection with this Agreement or
any of the transactions contemplated hereby.
8.9 SURVIVAL OF REPRESENTATION, WARRANTIES AND COVENANTS. Notwithstanding
anything herein to the contrary, the representation, warranties and covenants
contained herein shall survive termination or expiration of this Agreement.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the
day and year first above written.
Terremark Worldwide, Inc.
By: /s/ Xxxxxx X. Xxxxxx
------------------------------------
Name: Xxxxxx X. Xxxxxx
Title: President and CEO
NAP de Las Americas - Madrid, S.A.
By:
------------------------------------
Name:
Title:
TERREMARK SYSTEM LICENSE - SPAIN
Page 8
