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EXHIBIT 10.17
Confidential - WinStar/Xxxxxxxx
WIRELESS FIBERsm IRU AGREEMENT
BY AND BETWEEN
WINSTAR WIRELESS, INC.
AND
XXXXXXXX COMMUNICATIONS, INC.
Effective as of December 17, 1998
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TABLE OF CONTENTS
1. DEFINITIONS..................................................................................................1
1.1. Particular Terms...........................................................................................1
1.2. Other Terms................................................................................................4
2. SCOPE AND STRUCTURE..........................................................................................4
2.1. General....................................................................................................4
2.2. Term.......................................................................................................5
2.3. Strategic Relationship.....................................................................................5
3. GRANTS, RIGHTS AND RESPONSIBILITIES..........................................................................6
3.1. WinStar Grant, Rights and Responsibilities.................................................................6
3.2. WinStar Acceptance and Testing.............................................................................7
3.3. Control of Facilities......................................................................................7
3.4. Provisioning of Xxxxxxxx T-1s..............................................................................8
3.5. Service Orders for Xxxxxxxx T-1s...........................................................................9
3.6. Changes in Service Parameters.............................................................................10
3.7. Delivery of Minimum Xxxxxxxx T-1 Inventory................................................................10
4. OTHER PERFORMANCE AND SERVICES..............................................................................11
4.1. Interconnection...........................................................................................11
4.2. Collocation...............................................................................................11
4.3. Maintenance...............................................................................................11
4.4. Routine Maintenance.......................................................................................11
4.5. Non-Routine Maintenance...................................................................................12
4.6. Subcontractors............................................................................................12
4.7. Xxxxxxxx Equipment........................................................................................12
4.8. Performance Standards.....................................................................................12
4.9. Disengagement Assistance..................................................................................12
4.10. Relocation................................................................................................12
4.11. Ancillary Services........................................................................................13
5. CONTRACT ADMINISTRATION.....................................................................................13
5.1. Reports and Meetings......................................................................................13
5.2. Confidentiality...........................................................................................14
6. CHARGES.....................................................................................................16
6.1. General...................................................................................................16
6.2. Taxes.....................................................................................................16
6.3. Pass-Through Expenses.....................................................................................17
6.4. Most Favored Customer Status..............................................................................17
6.5. Benchmarking..............................................................................................18
7. INVOICING AND PAYMENT.......................................................................................18
7.1. Invoicing.................................................................................................18
7.2. Payment Due...............................................................................................18
7.3. Disputed Charges..........................................................................................19
7.4. Late Interest.............................................................................................19
8. COVENANTS, REPRESENTATIONS AND WARRANTIES...................................................................19
8.1. Non-Infringement..........................................................................................19
8.2. Authorization.............................................................................................19
8.3. Wireless Fiber Connectivity...............................................................................20
8.4. Disclaimer................................................................................................20
9. INDEMNIFICATION.............................................................................................20
9.1. Indemnities by Xxxxxxxx...................................................................................20
9.2. Indemnities by WinStar....................................................................................21
9.3. Indemnification Procedures................................................................................22
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10. LIABILITY, RISK OF LOSS AND INSURANCE.......................................................................22
10.1. General Intent............................................................................................22
10.2. Liability Restrictions....................................................................................23
10.3. Insurance Requirements....................................................................................23
10.4. Risk of Loss..............................................................................................24
10.5. Force Majeure.............................................................................................24
11. REMEDIES AND DISPUTE RESOLUTION.............................................................................25
11.1. Cumulative Nature.........................................................................................25
11.2. Informal Dispute Resolution...............................................................................25
11.3. Arbitration...............................................................................................26
11.4. Termination...............................................................................................27
11.5. Suspension of Service.....................................................................................27
11.6. Litigation................................................................................................27
11.7. Continued Performance.....................................................................................28
12. GENERAL.....................................................................................................28
12.1. Binding Nature and Assignment.............................................................................28
12.2. Entire Agreement..........................................................................................28
12.3. Tariff....................................................................................................28
12.4. Consents..................................................................................................29
12.5. Restriction of Transmissions..............................................................................29
12.6. Use and Ownership.........................................................................................29
12.7. Non-Solicitation..........................................................................................29
12.8. Notices...................................................................................................29
12.9. Counterparts..............................................................................................30
12.10. Relationship of Parties...................................................................................30
12.11. Severability..............................................................................................30
12.12. Reasonableness, Consents and Approval.....................................................................30
12.13. Waiver of Default.........................................................................................30
12.14. Survival..................................................................................................31
12.15. Public Disclosures........................................................................................31
12.16. Third Party Beneficiaries.................................................................................31
12.17. Amendment.................................................................................................31
12.18. Order of Precedence.......................................................................................31
12.19. Interpretation............................................................................................32
12.20. Covenant of Good Faith....................................................................................32
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WIRELESS FIBERsm IRU AGREEMENT
BY AND BETWEEN
WINSTAR WIRELESS, INC.
AND
XXXXXXXX COMMUNICATIONS, INC.
This WIRELESS FIBER IRU AGREEMENT (including the Exhibits and Schedules
attached hereto, the "Agreement"), effective as of December 17, 1998 (the
"Effective Date"), is entered into by and between WINSTAR WIRELESS, INC., a
Delaware corporation with offices located at 000 Xxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx
00000 ("WinStar"), and XXXXXXXX COMMUNICATIONS, INC., a Delaware corporation
with offices located at Xxx Xxxxxxxx Xxxxxx, Xxxxx, Xxxxxxxx 00000 ("Xxxxxxxx").
WHEREAS, WinStar is a fixed wireless services telecommunications
provider currently planning to build-out in the domestic major metropolitan
markets set forth in Exhibit A-1;
WHEREAS, Xxxxxxxx is a provider of high capacity long haul fiber optic
network transport and desires to utilize WinStar's Wireless Fiber Connectivity
(as hereinafter defined) in conjunction with its long haul network services; and
WHEREAS, upon the terms and subject to the conditions set forth below,
Xxxxxxxx desires to acquire from WinStar, and WinStar desires to provide to
Xxxxxxxx, an exclusive, indefeasible right to use certain of WinStar's Wireless
Fiber Connectivity on a private, non-common-carrier basis.
NOW THEREFORE, in consideration of the mutual promises set forth below
and other good and valid consideration, the receipt of which is hereby
acknowledged, WinStar and Xxxxxxxx (collectively, the "Parties" and each, a
"Party") agree as follows:
1. DEFINITIONS
1.1. Particular Terms.
As used in this Agreement:
(a) "Acceptance" has the meaning set forth in Exhibit A-4.
(b) "Acceptance Date" means, for each Hub, the date of Acceptance as
provided in Exhibit A-4.
(c) "Acceptance Standards" means the standards set forth in Exhibit
A-4 with respect to the testing of the Hubs.
(d) "Affiliate" means, with respect to any entity, any other entity
that directly, or indirectly through one or more intermediaries,
Controls, or is Controlled by, or is under common Control with,
such entity.
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(e) "Agreement" has the meaning set forth in the preamble to this
Agreement.
(f) "Confidential Information" has the meaning set forth in Section
5.2.
(g) "Control" and its derivatives means legal, beneficial or
equitable ownership, directly or indirectly, of more than fifty
percent (50%) of outstanding voting capital stock (or other
ownership interest, if not a corporation) of an entity or
management or operational control over such entity.
(h) "Cost" means actual, direct costs incurred and computed in
accordance with the established accounting procedures used by
WinStar to xxxx third parties for reimbursable projects. All
Costs shall be computed in accordance with generally accepted
accounting principles. Such actual, direct costs include:
(i) Labor costs, including wages and salaries, and benefits,
plus the overhead allocable to such labor costs (overhead
allocation percentage shall not exceed the lesser of: (i)
the percentage WinStar allocates to its internal projects;
or (ii) thirty percent (30%)); and
(ii) Other direct costs and Out-of-Pocket Expenses on a
Pass-Through Expenses basis (such as equipment, materials,
supplies, contract services, costs of capital, Required
Rights, sales, use or similar taxes, etc.) plus ten percent
(10%) of such expenses, but
(iii) Less any cost or expense reimbursed by a third party.
(i) "Domestic Hub Capacity" means, at the time in question, the
aggregate capacity of WinStar's deployed Hubs within the United
States.
(j) "Effective Date" has the meaning set forth in the preamble to
this Agreement.
(k) "Governmental Authorizations" means all licenses, permits and
authorizations from the Federal Communications Commission,
Federal Aviation Administration, state public utility
commissions, municipal authorities or any other governmental body
that are materially necessary or required for or used in the
business and operations of WinStar or the provision of the
Wireless Fiber Connectivity.
(l) "Hub" has the meaning set forth in Schedule A.
(m) "Indefeasible Right of Use" or "IRU" means an exclusive,
indefeasible right to use the specified Wireless Fiber
Connectivity as contemplated by this Agreement.
(n) "Intellectual Property Rights" means patent, copyright,
trademark, trade secret or other proprietary rights with respect
to any work product in which such rights could inure.
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(o) "Lit Building" means a building that, at the time in question, is
either a Hub provided by WinStar or equipped with a radio
connection to a Hub provided by WinStar utilizing spectrum in
which WinStar holds a license.
(p) "Losses" means all liabilities, damages and related costs and
expenses (including fines, levies, assessments, reasonable legal
fees and disbursements and costs of investigation, litigation,
settlement, judgment, interest and penalties) directly incurred
by a Party.
(q) "Maintenance" means the network operations, administration and
maintenance required for the continued performance of the WinStar
Fiberless Connectivity.
(r) "Minimum Xxxxxxxx T-1 Inventory" has the meaning set forth in
Exhibit A-6.
(s) "Out-of-Pocket Expenses" means reasonable and actual
out-of-pocket expenses incurred by a Party, but not including
that Party's overhead costs (or allocations thereof),
administrative expenses or other xxxx-ups.
(t) "Party" and "Parties" have the meanings set forth in the preamble
to this Agreement.
(u) "Pass-Through Expenses" means certain WinStar expenses, as agreed
to between the Parties in writing, which Xxxxxxxx agrees to pay
directly or reimburse on an Out-of-Pocket Expenses basis.
(v) "Prime Rate" means, in respect of any period, the rate published
as Chase Manhattan's prime rate in the Wall Street Journal, or
any successor publication thereto, from time to time during such
period.
(w) "Pro Rata Share" means a proportion equal, for Xxxxxxxx, to the
Xxxxxxxx Connectivity and, for WinStar, the complement of the
Xxxxxxxx Connectivity.
(x) "Qualified Building" means a building that, at the time in
question, has a verified line of sight (per WinStar's standard
practices) to a Hub provided by WinStar and for which the
necessary Required Rights have been obtained by, or provided to,
WinStar.
(y) "Required Rights" means leases or licenses for access to, and use
of, building roof areas and other antenna staging locations and
interior space and conduit rights as necessary to provide
Wireless Fiber Connectivity to a building.
(z) "Sector" means an area of coverage emanating off a
point-to-multipoint radio on a Hub.
(aa) "Sector Capacity" of any given Hub means, as of the date in
question, the transport capacity of the relevant Sector of that
Hub.
(bb) "Start Date" means, with respect to any Xxxxxxxx T-1, the first
day on which such service is provided.
(cc) "T-1" means a circuit (wire, fiber or spectrum) with a capacity
of 1.544 Mbps.
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(dd) "Term" has the meaning set forth in Section 2.2.
(ee) "Xxxxxxxx" has the meaning set forth in the preamble to this
Agreement.
(ff) "Xxxxxxxx Connectivity" has the meaning given in Exhibit A-6.
(gg) "Xxxxxxxx IRU" has the meaning given in Section 3.1(a).
(hh) "Xxxxxxxx T-1" has the meaning given in Section 3.1(a). Each such
circuit shall traverse any two end-points on the WinStar network
(e.g., at the common space in a Lit Building or at a local
WinStar point of presence) and shall be deemed provided when
approved by Xxxxxxxx in accordance with Section 3.5(e).
(ii) "WinStar" has the meaning set forth in the preamble to this
Agreement.
(jj) "WinStar Equipment" means the telecommunications equipment used
by WinStar to implement the Wireless Fiber Connectivity.
(kk) "WinStar Target Market" means a city listed in Exhibit A-2 where
WinStar has at least one Hub to provide the Wireless Fiber
Connectivity, which list may be amended by WinStar from time to
time with notice to Xxxxxxxx (in accordance with Exhibit A-2).
(ll) "Wireless Fiber Connectivity" means the Wireless Fibersm
connectivity, which WinStar is authorized to provide at certain
licensed radio frequency bandwidths.
1.2. Other Terms.
Other terms used in this Agreement are defined in the context in which
they are used and have the meanings there indicated.
2. SCOPE AND STRUCTURE
2.1. General.
(a) This Agreement sets forth the general terms and conditions under
which WinStar grants Xxxxxxxx specific rights to certain capacity
within the deployed Wireless Fiber Connectivity.
(b) The Parties acknowledge that this Agreement does not grant to
WinStar an exclusive privilege to sell or otherwise provide to
Xxxxxxxx any or all of the transport and services of the type
described in this Agreement. Xxxxxxxx may contract with other
suppliers for the procurement of comparable transport or
services. Subject to the Xxxxxxxx IRU granted by WinStar under
this Agreement, WinStar is not restricted from selling to other
entities any types of transport or services including the types
of transport or services that are provided to Xxxxxxxx hereunder.
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2.2. Term.
The term of this Agreement (the "Term"), with respect to each of the
initial two hundred and seventy (270) Hubs implemented by WinStar,
shall begin on the corresponding Acceptance Date and continue in
effect for twenty-five (25) years from that time.
2.3. Strategic Relationship.
(a) Resale of WinStar Product. Pursuant to terms to be agreed upon by
the Parties after the Effective Date, WinStar will xxxxx Xxxxxxxx
the right to market and promote certain WinStar voice and data
products (e.g., wireless capacity, professional services and
Internet connectivity) through its sales channel.
(b) Xxxxxxxx-Provided Roof Rights and Building Access. If requested
by WinStar, Xxxxxxxx shall grant to WinStar, at no cost,
appropriate roof, riser, conduit rights and interior space (in
each case, in quantities to be mutually agreed upon on a
case-by-case basis) rights to buildings in the United States for
which Xxxxxxxx owns, leases or occupies, in whole or in part,
that Xxxxxxxx can obtain (at reasonable cost) or has such rights.
In addition, Xxxxxxxx shall assist WinStar in obtaining such
rights with respect to other buildings in the United States
leased or occupied, in whole or in part, by Xxxxxxxx or its
Affiliates, including by actively conveying to those Affiliates
the strategic and important nature of the relationship with
WinStar. Xxxxxxxx shall provide (and periodically update as
reasonably requested by WinStar) WinStar with a written list of
the addresses of all such real estate.
(c) Mutual Marketing Support. WinStar will provide Xxxxxxxx
reasonable marketing support in connection with Xxxxxxxx' sale of
the Xxxxxxxx T-1s and other WinStar voice and data products.
(d) Provisioning and Billing OSS. The Parties will work together in
order to interface their then-current provisioning and billing
operational support system information (e.g., network events and
statistics). The reasonable costs associated with these
activities shall be mutually shared between the Parties. If,
after consultation with Xxxxxxxx, WinStar is required to provide
provisioning and billing information unique to Xxxxxxxx'
wholesale activities, the reasonable costs of providing such
information shall be borne by Xxxxxxxx.
(e) Regulatory Assistance. If either Party affirmatively takes a
position in the domestic regulatory environment, it will be in
favor of a level playing field and in support of competition, as
such Party determines in its sole discretion. The Parties shall
periodically (but at least semi-annually) meet to discuss their
plans and objectives with respect to the regulatory environment.
3. GRANTS, RIGHTS AND RESPONSIBILITIES
3.1. WinStar Grant, Rights and Responsibilities.
(a) Effective as of the Acceptance Date, WinStar hereby grants to
Xxxxxxxx an exclusive Indefeasible Right of Use (the "Xxxxxxxx
IRU"), for the purposes described herein, in the Xxxxxxxx
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Connectivity as expressed in T-1 increments over time, as
provided in Exhibit A-6 (the "Xxxxxxxx T-1s"), subject to the
additional limitations set forth in Subsection (c) below. Such
grant does not convey any legal title to any real or personal
property, including the spectrum, physical equipment and
connections used to effect the Domestic Hub Capacity.
(b) Subject to the terms of this Agreement, Xxxxxxxx shall have
exclusive use of the Xxxxxxxx T-1s for any lawful purpose during
the Term.
(c) In addition to the Xxxxxxxx Connectivity limitation set forth in
Section 3.1(a), the Xxxxxxxx T-1s shall be subject to the
following limitations:
(i) Xxxxxxxx T-1s from any Lit Building that is connected to the
WinStar Hub through a point-to-point radio link may go up to
but shall not exceed fifteen percent (15%) of the bandwidth
capacity provided to that building notwithstanding WinStar's
usage of any or all of such capacity in that building.
(ii) Xxxxxxxx T-1s that are to be implemented using
point-to-multipoint links between Lit Buildings in a Sector
and a WinStar Hub may go up to but shall not exceed fifteen
percent (15%) of the relevant Sector Capacity of that Hub
notwithstanding WinStar's usage of any or all of such Sector
Capacity in the Sector.
(iii)For Qualified Buildings lit at Xxxxxxxx' expense pursuant to
Section 3.4(b)(ii), the limitation set forth in Subsection
(c)(i), if applicable, shall be increased to fifty percent
(50%) for buildings lit point-to-point. In addition, only
seventy-five percent (75%) of the Xxxxxxxx T-1s in such
buildings will count towards the Xxxxxxxx Connectivity
limitation set forth in Subsection (a) above.
(iv) In accordance with Section 3.6, each Xxxxxxxx T-1 shall
count against the limitations set forth above for one (1)
year, regardless of whether or not the duration of its
connectivity lasts less than one (1) year. After its first
year of connectivity, each Xxxxxxxx T-1 shall count against
such limitations until disconnected.
(v) Xxxxxxxx may order Xxxxxxxx Connectivity only in multiples
of T-1 line speeds. Orders for line speeds higher than T-1
will count proportionately toward the limitations set forth
in this Subsection (c). For example, a DS-3 will count as
twenty-eight (28) T-1s. Apart from the applicability of the
limitations, the line speeds of the circuits constituting
the Xxxxxxxx Connectivity shall have no effect on the
respective rights and obligations of the Parties.
3.2. WinStar Acceptance and Testing.
(a) As of the Effective Date, Xxxxxxxx hereby agrees that Acceptance
of the initial fifty-seven (57) Hubs (the "Initial Hubs")
deployed by WinStar is deemed to have occurred. WinStar
represents and warrants that the Initial Hubs have met the
Acceptance Standards as of the Effective Date.
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(b) Prior to the use of each Hub deployed by WinStar following the
Effective Date, WinStar will have performed testing procedures in
accordance with Exhibit A-4, which are sufficient to verify
compliance with Acceptance Standards. Acceptance of each such Hub
shall occur as set forth in Exhibit A-4.
3.3. Control of Facilities.
Notwithstanding any other provision of this Agreement, WinStar has and
shall at all times continue to retain control over all FCC licenses,
equipment and facilities subject to this Agreement and shall have, at
all times, required access to all of the equipment and facilities
installed by it pursuant to this Agreement. In exercising this
control, WinStar will not disturb or interfere with the Xxxxxxxx T-1s
without good cause, such as a request from the FCC to shut down
interfering transmissions, emergency service restoration or correction
of other technical problems. WinStar shall provide Xxxxxxxx with as
much prior notice as is reasonably practicable in the case of
emergency disruptions of the Wireless Fiber Connectivity. WinStar
shall, with the reasonable cooperation and assistance of Xxxxxxxx, (i)
operate its business in all material respects in accordance with the
terms of the Governmental Authorizations and (ii) maintain the
validity of the Governmental Authorizations. WinStar agrees to provide
Xxxxxxxx with notice in the event matters come to WinStar's attention
that could materially prevent it from meeting its obligations under
this Agreement. In this regard, WinStar and Xxxxxxxx further agree as
follows:
(a) Xxxxxxxx shall not represent itself as the holder of any FCC
licenses issued to WinStar.
(b) Any communications by either Party with the FCC regarding the
subject matter of this Agreement shall require the other's prior
written approval.
(c) Neither WinStar nor Xxxxxxxx shall represent itself as the legal
representative of the other before the FCC or any state
regulatory body. Except as otherwise required by law, all filings
made before regulatory bodies with respect to WinStar's license
or the services provided hereunder shall be made by and in the
name of WinStar. WinStar and Xxxxxxxx will cooperate with each
other with respect to regulatory matters concerning WinStar's
licenses and the services provided pursuant to this Agreement;
provided, however, this will not relieve WinStar from complying
with the Governmental Authorizations.
(d) Nothing in this Agreement is intended to diminish or restrict
WinStar's obligations as an FCC licensee and both Parties desire
that this Agreement be in full compliance with the rules and
regulations of the FCC and any state or local jurisdiction. If
the FCC or any state regulatory body of competent jurisdiction
determines that any provision of this Agreement violates any
applicable rules, policies or regulations, both Parties shall
bear their respective Pro Rata Share of costs to immediately
bring this Agreement into compliance, consistent with the intent
of this Agreement.
(e) It is expressly understood by WinStar and Xxxxxxxx that nothing
in this Agreement is intended to give to Xxxxxxxx any right that
would be deemed to constitute a transfer of control (as "control"
is defined in the Communications Act of 1934, as amended, or any
applicable FCC rules or case law) of one or more of WinStar's
licenses from WinStar to Xxxxxxxx.
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3.4. Provisioning of Xxxxxxxx T-1s.
Except as otherwise provided in this Section 3.4, WinStar, at its own
expense, shall be solely responsible for obtaining and maintaining all
rights and privileges (including Required Rights, space and power)
that are necessary for WinStar to provide the Xxxxxxxx T-1s to the
WinStar common space.
(a) Subject to the limitations set forth in Section 3.1, Xxxxxxxx may
order T-1s to be connected to any Qualified Building (or a
building that would be a Qualified Building but for the obtaining
of Required Rights). If Xxxxxxxx orders Xxxxxxxx T-1s that are to
be connected to a Lit Building, WinStar will provision, on a
non-discriminatory basis, those T-1s to the common space at no
additional cost with an objective of completing that provisioning
within thirty (30) days from the date of Xxxxxxxx' order.
(b) If Xxxxxxxx orders Xxxxxxxx T-1s that are to be connected to a
Qualified Building (or a building that would be a Qualified
Building but for the obtaining of Required Rights) that is not a
Lit Building:
(i) WinStar shall determine within ninety (90) days of receipt
of notice from Xxxxxxxx whether, in its sole discretion, it
will light such building at its own expense. If WinStar so
elects, that notice shall set forth a target delivery date
and WinStar shall light that building and provision, on a
non-discriminatory basis, the T-1s to the common space with
the objective of completing such activities by the target
delivery date.
(ii) If WinStar elects not to light such building at its own
expense, WinStar will light the building upon Xxxxxxxx'
request, in accordance with a target delivery date
established by WinStar. Xxxxxxxx shall pay for such lighting
at WinStar's Cost of performance. Additionally, in such
event, Xxxxxxxx shall be responsible, with WinStar's
assistance, for obtaining and maintaining, at Xxxxxxxx'
expense, all necessary rights and privileges (including
Required Rights, space and power). Lighting, pursuant to
this Subsection 3.4(b)(ii), of more than five (5) buildings
connected to a single Hub, whether singly or in combination
over any period of time, shall be subject to WinStar's
approval which shall not be unreasonably withheld.
(c) When WinStar lights a building for provisioning a Xxxxxxxx T-1,
Xxxxxxxx will either:
(i) Perform inside wiring for its customers in such building
subject both to obtaining any necessary consents and to
WinStar's then-current installation guidelines and
specifications; or
(ii) Have WinStar perform such wiring at WinStar's Cost.
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3.5. Service Orders for Xxxxxxxx T-1s.
(a) The implementation of a Xxxxxxxx T-1 to a Lit Building shall be
requested on WinStar's Service Order forms in effect from time to
time ("Service Orders"). Each Service Order shall reference this
Agreement. WinStar reserves the right not to accept a Service
Order that does not conform with the terms and conditions of this
Agreement and such non-conforming Service Order shall have no
force or effect hereunder.
(b) Each Service Order will indicate a requested Start Date (the
"Requested Start Date") for the implementation of the Xxxxxxxx
T-1s to a Lit Building, the desired term of the Xxxxxxxx T-1s,
and any other parameters required. WinStar shall acknowledge
receipt of the Service Order, on average, within forty-eight (48)
hours (an "Acknowledgement").
(c) Once a Service Order is placed, Xxxxxxxx may cancel it only by
notice of cancellation not less than ten (10) days prior to
delivery of the corresponding Xxxxxxxx T-1, and payment of any
specified cancellation fee. Xxxxxxxx agrees that the actual
damages in the event of such cancellation would be difficult or
impossible to ascertain, and that the cancellation charge
including those set forth herein is consequently intended to
establish liquidated damages and not a penalty.
(d) Any conflicting, different or additional terms and conditions
contained in Xxxxxxxx' acknowledgment or Service Order or
elsewhere are deemed objected to by WinStar and shall not
constitute part of this Agreement. No action by WinStar
(including fulfillment of such Service Order) shall be construed
as binding or estopping WinStar with respect to such conflicting,
different or additional term or condition, unless the Service
Order containing said term or condition has been signed by an
authorized representative of WinStar.
(e) WinStar shall make reasonable efforts to provide the Xxxxxxxx
T-1s within the service implementation interval set forth in
Section 3.5(b) or by Xxxxxxxx' Requested Start Date. Xxxxxxxx
T-1s shall begin on the date WinStar issues notice that service
is available (the "Start of Service Notice" or "SOSN"),
indicating the Xxxxxxxx T-1 has been tested by WinStar in
accordance with WinStar's standard specifications and that the
service meets or exceeds those specifications.
(f) Xxxxxxxx may reasonably request one or more delays in the
Requested Start Date of a Service Order, a move, or rearrangement
if WinStar receives the delay request at least fifteen (15) days
prior to the Requested Start Date and the requested delay does
not extend the Requested Start Date more than thirty (30) days
from the original date thereof. If Xxxxxxxx delays the Requested
Start Date (or as gauged by the SOSN, if issued for a date after
the Requested Start Date) by more than thirty (30) days, the
Xxxxxxxx T-1s will count against the Minimum Xxxxxxxx T-1
Inventory and the Xxxxxxxx Connectivity for a period of one (1)
year. This count against the Minimum Xxxxxxxx T-1 Inventory and
Xxxxxxxx Connectivity will be effective thirty (30) days after
the Requested Start Date.
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3.6. Changes in Service Parameters.
Following the relevant Start Date for any Xxxxxxxx T-1, Xxxxxxxx may
disconnect or reconfigure that service upon sixty (60) days' prior
written notice. If that action relates to a Xxxxxxxx T-1 that has not
been in place for at least one (1) year from its Start Date, (i) such
Xxxxxxxx T-1 will continue to count against the Minimum Xxxxxxxx T-1
Inventory and Xxxxxxxx Connectivity for the remainder of the one (1)
year period; and (ii) Xxxxxxxx shall also pay WinStar the additional
charges incurred by WinStar that are associated with that
disconnection or reconfiguration. Subsection (ii) shall also apply
with respect to a cancellation as provided in Section 3.5(c).
3.7. Delivery of Minimum Xxxxxxxx T-1 Inventory.
(a) Availability Date. The "Availability Date" shall mean (i) the
Effective Date with respect to the Minimum Xxxxxxxx T-1 Inventory
identified in Exhibit A-6 to be provided to Xxxxxxxx as of the
Effective Date, and (ii) December 31st of each calendar year
following 1998 through the end of the Term with respect to each
annual number of Minimum Xxxxxxxx T-1 Inventory identified in
Exhibit A-6 for such calendar year. The "Deadline Date" shall be
sixty (60) days after the later of (i) such planned Availability
Date or (ii) the planned Availability Date as extended due to
unforeseen events not in the reasonable control of WinStar (other
than as due to WinStar's negligence), Force Majeure events or as
expressly permitted by this Agreement. WinStar shall make
available each of its annual Minimum Xxxxxxxx T-1 Inventories by
the applicable Deadline Date. WinStar shall give Xxxxxxxx as much
prior notice as reasonably possible if, to the best of WinStar's
knowledge, there is a foreseeable risk that it may miss a
Deadline Date for its Minimum Xxxxxxxx T-1 Inventory.
(b) Failure to Meet Deadline Date. If WinStar fails to make available
the Minimum Xxxxxxxx T-1 Inventory by its applicable Deadline
Date, and the Parties are unable, in good faith, to agree to an
alternative Deadline Date, Xxxxxxxx' sole and exclusive monetary
remedy for such failure shall be to obtain Cover (as hereinafter
defined) beginning on the Deadline Date for the number of T-1s
not made available. "Cover" shall be satisfied by obtaining, at
WinStar's expense, the number of T-1s that would have been
available had WinStar made available the entire applicable
Minimum Xxxxxxxx T-1 Inventory. Once WinStar makes such T-1s
available, the Parties will work together to migrate the T-1s to
WinStar at WinStar's sole cost and expense.
4. OTHER PERFORMANCE AND SERVICES
4.1. Interconnection.
(a) With respect to each of the WinStar Target Markets, the Parties
shall mutually determine the most efficient manner of providing
the required connectivity ("Interconnection") between the WinStar
and Xxxxxxxx points of presence, whether through then-existing
installed capacity, implementation of new capacity or third party
arrangements. In addition, the Parties shall set and periodically
review the schedule (timing and priority) of implementation of
those Interconnection facilities and shall adhere to that
schedule in implementing such facilities.
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(b) The Parties shall allocate the costs of each Interconnection
facility as follows:
(i) The Parties shall mutually agree upon a forecast of each
Party's usage of that Interconnection facility during the
first year after implementation (the "Forecast"). The
non-recurring costs associated with the implementation of
that facility and the recurring cost thereof in the first
month of operation (in aggregate, the "Start-up Costs") will
be allocated pro rata between the Parties based upon the
Forecast. One year thereafter the Parties shall re-calculate
the allocation of the Start-up Costs by substituting actual
usage during the preceding year in place of the Forecast.
Based upon that recalculation, Xxxxxxxx shall pay or receive
a refund, in either case equal to the difference between the
initial allocation of the Start-up Costs and the
recalculated amount, plus interest at the Prime Rate for the
applicable period.
(ii) On a quarterly basis, the Parties shall allocate the
periodic recurring costs of that Interconnection facility
pro rata between the Parties based upon actual usage during
the preceding quarter.
(iii)Following the Effective Date, the Parties will mutually
develop appropriate procedures to implement the foregoing.
4.2. Collocation.
Exhibit A-3 sets forth the collocation services, terms and conditions.
4.3. Maintenance.
WinStar shall be responsible for providing maintenance, repair and
testing on all WinStar Equipment used to provide the Xxxxxxxx T-1s, in
accordance with its then-current standard policies and procedures, a
portion of which is attached hereto as Exhibit A-4. Xxxxxxxx is
prohibited from providing any maintenance, repair or testing with
regard to WinStar Equipment.
4.4. Routine Maintenance.
During the Term, WinStar shall perform all required Routine
Maintenance Services at the charges set forth in Schedule C. "Routine
Maintenance Services" means the work specifically identified as
Routine Maintenance Services in Article 5 of Schedule A, provided that
Routine Maintenance Services excludes work for which Xxxxxxxx is
obligated to reimburse WinStar for all or a portion of the Costs
incurred pursuant to other provisions of this Agreement.
4.5. Non-Routine Maintenance.
Xxxxxxxx shall pay its Pro Rata Share of WinStar's direct Costs for
maintenance in respect of the Xxxxxxxx Connectivity other than Routine
Maintenance Services, if the Cost of such work relating to any single
event or multiple related events is greater than Five Thousand Dollars
($5,000.00).
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4.6. Subcontractors.
WinStar may subcontract provisioning, testing, maintenance, repair,
restoration, relocation or other operational and technical services it
is obligated to provide hereunder or may have the underlying facility
owner or its contractor perform such obligations. Such subcontracting
shall not relieve WinStar of any obligations under this Agreement.
4.7. Xxxxxxxx Equipment.
WinStar's maintenance and repair obligations under this Agreement
shall not include maintenance, repair or replacement of Xxxxxxxx'
equipment.
4.8. Performance Standards.
Except as otherwise set forth in Schedule B, for the purpose of this
Agreement the normal standards of performance within the
telecommunications industry in the relevant market shall be the
measure of whether a Party's performance is reasonable and timely.
4.9. Disengagement Assistance.
Upon termination or expiration of this Agreement, WinStar shall
provide Xxxxxxxx and its designated third party providers all
reasonable assistance as necessary to effect a smooth transition to a
new supplier.
4.10. Relocation.
(a) If WinStar determines for bona fide operational reasons, or is
required by a third party acting pursuant to condemnation or
similar authority or by a governmental entity, to relocate all or
any portion of a Hub or any of the facilities used or required in
providing Xxxxxxxx with the Xxxxxxxx IRU, WinStar shall, to the
extent practicable, provide Xxxxxxxx sixty (60) days' prior
notice and shall proceed with such relocation. WinStar shall have
the right to direct such relocation, including the right to
determine the extent of, the timing of, and methods to be used
for such relocation, provided that any such relocation:
(i) Shall be constructed and tested in accordance with the
specifications and requirements set forth in this Agreement
and applicable Exhibits;
(ii) Shall not result in a materially adverse change to the
operations or performance of the Hub, and
(iii) Shall not unreasonably interrupt service on the Hub.
For purposes of this Section 4.10, a WinStar relocation shall be
for bona fide operational reasons if it is undertaken in good
faith (i) to settle or avoid a bona fide threatened or filed
condemnation action or order by a governmental authority to
relocate, (ii) to reduce the likelihood of physical damage, (iii)
as the result of a Force Majeure Event, or (iv) for other
operational reasons to which Xxxxxxxx has consented, provided
that Xxxxxxxx shall not unreasonably withhold such consent.
WinStar shall use reasonable efforts to contest any exercise of
condemnation authority that would require a relocation pursuant
to this Section 4.10.
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(b) Unless such relocation is necessitated by a breach of WinStar's
obligations under this Agreement, Xxxxxxxx shall reimburse
WinStar for the Costs incurred in the same manner and to the same
extent as set forth for reimbursement for Costs of maintenance
other than for Routine Maintenance Services in Section 4.5.
4.11. Ancillary Services.
WinStar may also provide other services to Xxxxxxxx for reasons
including: (a) Xxxxxxxx' request to expedite Xxxxxxxx T-1 availability
to a date earlier than WinStar's published installation interval or a
previously accepted Start Date; (b) Xxxxxxxx T-1 redesign or other
activity occasioned by receipt of inaccurate information from
Xxxxxxxx; (c) Xxxxxxxx' request for use of facilities other than those
selected by WinStar for provision of the Wireless Fiber Connectivity
("facilities" for this purpose shall not include buildings that became
Lit Buildings pursuant to Section 3.4(b)(i)); and (d) other
circumstances in which extraordinary costs and expenses are generated
at the written request of Xxxxxxxx and incurred by WinStar
(collectively, "Ancillary Services").
5. CONTRACT ADMINISTRATION
5.1. Reports and Meetings.
(a) Within thirty (30) days of the Effective Date, the Parties shall
mutually agree upon a set of monthly reports to be issued by
WinStar to Xxxxxxxx. WinStar will provide Xxxxxxxx with suggested
formats for such reports for Xxxxxxxx' review and approval. As
one such report, WinStar will provide a monthly performance
report that describes WinStar's deployment of the Hubs,
availability of the applicable Minimum Xxxxxxxx T-1 Inventory and
a forecast of upcoming WinStar Target Market implementations
(including Hubs, buildings and addresses).
(b) Within thirty (30) days of the Effective Date, the Parties shall
mutually agree upon a set of regular management meetings. WinStar
will prepare and circulate an agenda sufficiently in advance of
each such meeting to give participants an opportunity to prepare
for the meeting and will incorporate into such agenda any items
that Xxxxxxxx desires to discuss. At Xxxxxxxx' request, WinStar
will prepare and circulate minutes promptly after a meeting.
5.2. Confidentiality.
(a) Confidential Information. Xxxxxxxx and WinStar each acknowledge
that they may be furnished with, receive or otherwise have access
to information of or concerning the other Party that such Party
considers to be confidential, proprietary, a trade secret or
otherwise restricted. As used in this Agreement and subject to
Section (c), "Confidential Information" means all information, in
any form, furnished or made available directly or indirectly by
one Party (the "Disclosing Party") to the other (the "Receiving
Party") that (i) concerns the operations, facilities, plans,
affairs and businesses of the Disclosing Party, the financial
affairs of the Disclosing Party, and the relations of the
Disclosing Party with its customers, employees and service
providers, or (ii) is marked confidential, restricted,
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proprietary, or with a similar designation. The terms and
conditions of this Agreement shall be deemed Confidential
Information, but may be disclosed pursuant to this Section 5.2 or
Section 12.15.
(b) Obligations.
(i) Each Party's Confidential Information shall remain the
property of that Party except as expressly provided
otherwise by the other provisions of this Agreement. Each
Party shall each use at least the same degree of care, but
in any event no less than a reasonable degree of care, to
prevent unauthorized disclosure of Confidential Information
as it employs to avoid unauthorized disclosure of its own
information of a similar nature. Except as otherwise
permitted hereunder, the Parties may disclose such
information (A) to their respective directors, officers,
managers, employees, agents, contractors and consultants
(collectively, "Representatives"), (B) to entities
performing services required hereunder only where: (1) use
of such entity is authorized under this Agreement, (2) such
disclosure is necessary or otherwise naturally occurs in
that entity's scope of responsibility, (3) the entity agrees
in writing to assume the obligations described in this
Subsection (b). Any disclosure to such entity shall be under
substantially the same confidentiality terms and conditions
set forth herein.
(ii) Each Party shall take reasonable steps to ensure that its
(and its Affiliates') Representatives comply with this
Subsection (b). In the event of any disclosure or loss of,
or inability to account for, any Confidential Information of
the Disclosing Party, the Receiving Party shall promptly, at
its own expense: (A) notify the Disclosing Party in writing;
and (B) take such actions as may be necessary and cooperate
in all reasonable respects with the Disclosing Party to
minimize the violation and any damage resulting therefrom.
(iii)Either Party may disclose the terms and conditions of this
Agreement to any third party that (A) has expressed a bona
fide interest in consummating a significant financing,
merger or acquisition or other corporate transaction between
such third party and such Party, (B) has a reasonable
ability (financial and otherwise) to consummate such
transaction, and (C) has executed a nondisclosure agreement
that includes within its scope the terms and conditions of
this Agreement and also includes a procedure to limit the
extent of copying and distribution thereof. Each Party shall
endeavor to delay the disclosure of the terms and conditions
of this Agreement until the status of discussions concerning
such transaction warrants such disclosure. In addition,
either party (or either party's Affiliates) may disclose the
terms and conditions of this Agreement as such party deems
appropriate to prepare for IPOs or major corporate
transactions. Any disclosure to such entity shall be
substantially under the same confidentiality terms and
conditions as provided herein.
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(c) Exclusions. "Confidential Information" shall exclude any
particular information that the Receiving Party can demonstrate:
(i) At the time of disclosure, was in the public domain or in
the rightful possession of the Receiving Party;
(ii) After disclosure, is published or otherwise becomes part of
the public domain through no fault of the Receiving Party;
(iii)Was received after disclosure from a third party who had a
lawful right to disclose such information to the Receiving
Party without any obligation to restrict its further use or
disclosure;
(iv) Was independently developed by the Receiving Party without
reference to Confidential Information of the Disclosing
Party; or
(v) Was required to be disclosed to satisfy a legal requirement
of a competent government body; provided that, immediately
upon receiving such request and to the extent that it may
legally do so, the Receiving Party advises the Disclosing
Party promptly and prior to making such disclosure in order
that the Disclosing Party may interpose an objection to such
disclosure, take action to assure confidential handling of
the Confidential Information, or take such other action as
it deems appropriate to protect the Confidential
Information.
(d) No Implied Rights. Nothing contained in this Section shall be
construed as obligating a Party to disclose its Confidential
Information to the other Party, or as granting to or conferring
on a Party, expressly or impliedly, any rights or license to the
Confidential Information of the other Party.
6. CHARGES
6.1. General.
The charging mechanisms and pricing methodologies for Wireless Fiber
Connectivity and maintenance and collocation services are set forth in
Schedule C.
6.2. Taxes.
The Parties' respective responsibilities for taxes arising under or in
connection with this Agreement shall be as follows:
(a) Each Party shall be responsible for personal property taxes on
property it owns or leases, for franchise and privilege taxes on
its business, and for taxes based on its net income or gross
receipts; provided, however, that Xxxxxxxx shall be responsible
for its proportionate share (based upon the proportion of the Hub
or building capacity used for Xxxxxxxx T-1) of any property taxes
(or similar levies) assessed as a result of the implementation of
any Xxxxxxxx T-1.
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(b) Xxxxxxxx shall timely report and pay any and all sales, use,
income, gross receipts, excise, transfer, ad valorem or other
taxes, and any and all franchise fees or similar fees assessed
against it due to the Xxxxxxxx IRU or its use of the Xxxxxxxx
T-1s.
(c) If a sales, use, excise, value-added, services, consumption, or
other tax is assessed on the provision of the Wireless Fiber
Connectivity, Maintenance or any other services, the Parties
shall work together to segregate the payments under this
Agreement into three (3) payment streams:
(i) Payments for taxable items;
(ii) Payments where Xxxxxxxx functions merely as a payment agent
for WinStar; and
(iii) Payments for other nontaxable items.
(d) The Parties agree to cooperate with each other to enable each to
determine more accurately its own tax liability and to minimize
such liability to the extent legally permissible. Each invoice
shall separately state the amounts of any taxes collected. Each
Party shall provide and make available to the other any resale
certificates and other exemption certificates or information
reasonably requested by either Party that is applicable to the
subject matter of this Agreement.
(e) Each Party shall promptly notify the other of, and coordinate the
response to and settlement of, any claim for taxes asserted by
applicable taxing authorities for which the other Party is
responsible hereunder. With respect to any claim arising out of a
form or return signed by a Party to this Agreement, such Party
shall have the right to elect to control the response to and
settlement of the claim, but the other Party shall have all
rights to participate in the responses and settlements that are
appropriate to its potential responsibilities or liabilities.
6.3. Pass-Through Expenses.
For each Pass-Through Expense, if any, WinStar shall review the
invoiced charges and determine whether such charges are proper and
valid. Unless the Parties mutually agree otherwise, Pass-Through
Expenses will be paid directly by Xxxxxxxx.
6.4. Most Favored Customer Status.
(a) Xxxxxxxx T-1s. With regard to the Xxxxxxxx Connectivity, Xxxxxxxx
shall have most favored customer protection as follows:
(i) During the twenty-four (24) months following the Effective Date,
if WinStar enters into an agreement with another party to provide
Wireless Fiber Connectivity and the overall pricing ("Financial
Terms") of such services is not Comparable (as hereinafter
defined) to that provided to Xxxxxxxx pursuant to this Agreement
with regard to the Xxxxxxxx Connectivity, WinStar shall promptly
notify Xxxxxxxx in writing of such more favorable Financial
Terms. WinStar shall be under no obligation to disclose to
Xxxxxxxx the identity of any such third party or any other
provisions of such a contract that are not more favorable than
those provided to Xxxxxxxx. As used in this Section, "Comparable"
means not less than one-half the price, after adjustments to take
into account all differences attributable to volume, terms and
conditions, advances in technology, passage of time, market
conditions or strategic relationship value.
(ii) If WinStar sells Wireless Fiber Connectivity to a third party on
Financial Terms that are not Comparable to those provided
hereunder, Xxxxxxxx shall be entitled to an adjustment of the
amounts paid with regard to the Xxxxxxxx Connectivity. Such
adjustment shall be equal to twice the aggregate amount
necessary to make the Financial Terms Comparable and shall be
credited in such amounts as correspond to the timing of Xxxxxxxx'
payment obligations hereunder. Upon payment or credit of such
adjustment to Xxxxxxxx, the Financial Terms of this Agreement
shall be deemed to be those more favorable Financial Terms for
the purpose of future applications of this Section. Nothing in
this Section 6.4 shall be deemed to require WinStar to sell more
Wireless Fiber Connectivity than the Xxxxxxxx Connectivity.
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(b) Excess Connectivity. With regard to Wireless Fiber Connectivity
in excess of the Xxxxxxxx Connectivity or Xxxxxxxx T-1 Ceiling,
as appropriate ("Excess Connectivity"), Xxxxxxxx shall have most
favored customer protection as follows:
(i) During the Term, if WinStar enters into an agreement with
another part to provide Wireless Fiber Connectivity and the
Financial Terms of such services are not Comparable (as
hereinafter defined) to that provided to Xxxxxxxx for Excess
Connectivity pursuant to this Agreement, WinStar shall
promptly notify Xxxxxxxx in writing of such more favorable
Financial Terms. WinStar shall be under no obligation to
disclose to Xxxxxxxx the identity of any such third party or
any other provisions of such a contract that are not more
favorable than those provided to Xxxxxxxx. As used in this
Section, "Comparable" means an equivalent price, after
adjustments to take into account all differences
attributable to volume, terms and conditions, advances in
technology, passage of time, market conditions or strategic
relationship value.
(ii) If WinStar sells Wireless Fiber Connectivity to a third
party on Financial Terms that are not Comparable to those
provided hereunder with regard to Excess Connectivity,
Xxxxxxxx shall be entitled to an adjustment. Such adjustment
shall be equal to the amount necessary to make the Financial
Terms Comparable and shall be credited in such amounts as
correspond to the timing of Xxxxxxxx' payment obligations
hereunder. Upon payment or credit of such adjustment to
Xxxxxxxx, the Financial Terms of this Agreement shall be
deemed to be those more favorable Financial Terms for the
purpose of future applications of this Section.
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6.5. Benchmarking.
(a) Wireless Fiber Connectivity offered by WinStar in excess of the
Xxxxxxxx Connectivity, if any, shall be of equivalent or better
quality, availability and price when compared to similar
offerings in the marketplace. However, nothing in this Section
6.5 shall be deemed to require WinStar to sell more Wireless
Fiber Connectivity than the Xxxxxxxx Connectivity.
(b) Within 180 days after the Effective Date, the Parties will
jointly establish a benchmarking measurement and comparison
process (the "Benchmarking Process") designed to objectively
evaluate whether the Wireless Fiber Connectivity purchased by
Xxxxxxxx in excess of the Xxxxxxxx Connectivity is of equivalent
or better quality, availability and price as compared to similar
services generally available in the market for similar size and
scope requirements ("Market Level Charges"). The Benchmarking
Process will take into consideration relevant factors such as
quality and delivery terms.
7. INVOICING AND PAYMENT
7.1. Invoicing.
WinStar shall invoice Xxxxxxxx for all amounts due under this
Agreement prior to the payment dates set forth in Schedule C and on a
monthly basis in arrears for all other charges. Each invoice shall
show such details as reasonably requested by Xxxxxxxx, separately
state the amounts of any taxes collected and include the calculations
utilized to establish the charges.
7.2. Payment Due.
(a) Subject to the other provisions of this Article 7, invoices
provided for under Section 7.1 and properly submitted to Xxxxxxxx
pursuant to this Agreement shall be due and payable by Xxxxxxxx
within thirty (30) days after receipt thereof. Any amount due
under this Agreement for which a time for payment is not
otherwise specified shall be due and payable within thirty (30)
days after receipt of a proper invoice for such amount.
(b) To the extent a credit may be due Xxxxxxxx pursuant to this
Agreement, WinStar shall provide Xxxxxxxx with an appropriate
credit against amounts then due and owing; if no further payments
are due to WinStar, WinStar shall pay such amounts to Xxxxxxxx
within thirty (30) days.
(c) Xxxxxxxx shall make payments provided for under this Article 7 or
Schedule C by wire transfer of immediately available funds to the
account or accounts designated by WinStar. All other payments to
be made pursuant to this Agreement may be made by check or draft
of immediately available funds delivered to the address
designated in writing by the other Party (e.g., in a statement or
invoice) or, failing such designation, to the address for notice
to such other Party provided pursuant to Section 12.8.
(d) The first invoice provided under this Agreement shall be due and
payable within sixty (60) days of the Effective Date.
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7.3. Disputed Charges.
Xxxxxxxx shall pay undisputed charges when such payments are due under
this Agreement. Xxxxxxxx may withhold payment of particular charges
that Xxxxxxxx disputes in good faith and for which it promptly gives
written notice to WinStar, stating the details of such dispute. The
Parties shall promptly refer such matter to dispute resolution in
accordance with Section 11.2. If Xxxxxxxx withholds any disputed
charges and such charges are ultimately determined to be proper and
payable to WinStar, Xxxxxxxx shall pay such charges to WinStar plus
interest at the Prime Rate from the date such charges were originally
due until the date such charges are paid. WinStar agrees that no
payment dispute shall be grounds for WinStar to withhold or diminish
the quality or quantity of any of the connectivity and services
provided hereunder.
7.4. Late Interest.
If either Xxxxxxxx or WinStar fails to make any payment under this
Agreement when due, such amounts shall accrue interest, from the date
such payment is due until paid, including accrued interest, at the
Prime Rate.
8. COVENANTS, REPRESENTATIONS AND WARRANTIES
8.1. Non-Infringement.
Each Party represents, warrants and covenants to the other that it
shall perform its responsibilities under this Agreement in a manner
that does not infringe, or constitute an infringement or
misappropriation of, any Intellectual Property Rights of any third
party.
8.2. Authorization.
Each Party represents and warrants to the other that:
(a) It has the requisite corporate power and authority to enter into
this Agreement and to carry out the transactions contemplated by
this Agreement;
(b) The execution, delivery and performance of this Agreement and the
consummation of the transactions contemplated by this Agreement
have been duly authorized by the requisite corporate action on
the part of such Party;
(c) This Agreement constitutes a legal, valid and binding obligation
enforceable against such party in accordance with its terms;
(d) Its execution of and performance under this Agreement shall not
violate any applicable existing regulations, rules, statutes, or
court orders of any local, state, or federal government agency,
court, or body;
(e) It is not subject to any contractual or other obligation that
would prevent it from entering into this relationship; and
(f) It has not offered or provided any inducements in violation of
law or the other Party's policies of which it has been given
notice, in connection with this Agreement.
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8.3. Wireless Fiber Connectivity.
Excluding services provided by third parties other than WinStar's
subcontractors, WinStar covenants that the Xxxxxxxx T-1s shall be
designed, engineered, installed, constructed and operated in
accordance with the specifications set forth in the applicable
services schedule. WinStar further covenants that it will use its
commercially reasonable efforts under the circumstances to remedy any
delays, interruptions, omissions, mistakes, accidents or errors in the
Xxxxxxxx T-1s provided hereunder and to restore such Xxxxxxxx T-1s to
compliance with the terms hereof.
8.4. Disclaimer.
EXCEPT AS SPECIFICALLY SET FORTH IN THIS AGREEMENT, THE PARTIES MAKE
NO WARRANTY TO EACH OTHER OR ANY OTHER ENTITY, WHETHER EXPRESS,
IMPLIED OR STATUTORY, AS TO THE MERCHANTABILITY OR FITNESS FOR ANY
PARTICULAR PURPOSE OF ANY WIRELESS FIBER CONNECTIVITY, XXXXXXXX T-1s,
HUBS, ANCILLARY SERVICES OR ANY OTHER SERVICES PROVIDED HEREUNDER OR
DESCRIBED HEREIN, OR AS TO ANY OTHER MATTER, ALL OF WHICH WARRANTIES
ARE HEREBY EXPRESSLY EXCLUDED AND DISCLAIMED.
9. INDEMNIFICATION
9.1. Indemnities by Xxxxxxxx.
Xxxxxxxx agrees to indemnify, defend and hold harmless WinStar and its
Affiliates and their respective officers, directors, employees,
agents, successors, and assigns, from any and all Losses and
threatened Losses arising from, in connection with, or based on
allegations of, any of the following:
(a) Xxxxxxxx' failure to observe or perform its duties or obligations
to third parties (e.g., duties or obligations to subcontractors);
(b) Xxxxxxxx' infringement or misappropriation of any Intellectual
Property Rights of any third party;
(c) Xxxxxxxx' unexcused failure to abide by the terms and conditions
of the business relationship as mutually agreed to by the Parties
in writing;
(d) The death or bodily injury of any agent, employee, customer,
business invitee or any other person to the extent caused by the
tortious conduct of Xxxxxxxx;
(e) The damage, loss or destruction of any real or tangible personal
property to the extent caused by the tortious conduct of
Xxxxxxxx;
(f) Fines, penalties or other amounts payable due to Xxxxxxxx'
violation of applicable laws or regulations; and
(g) Any claim, demand, charge, action, cause of action, or other
proceeding asserted against WinStar but resulting from an act or
omission of Xxxxxxxx in its capacity as an employer of a person.
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9.2. Indemnities by WinStar.
WinStar agrees to indemnify, defend and hold harmless Xxxxxxxx and its
Affiliates and their respective officers, directors, employees,
agents, successors, and assigns, from any and all Losses and
threatened Losses arising from, in connection with, or based on
allegations of, any of the following:
(a) WinStar's failure to observe or perform its duties or obligations
to third parties (e.g., duties or obligations to its customers);
(b) WinStar's infringement or misappropriation of Intellectual
Property Rights of any third party;
(c) WinStar's unexcused failure to abide by the terms and conditions
of the business relationship as mutually agreed to by the Parties
in writing;
(d) The death or bodily injury of any agent, employee, customer,
business invitee or any other person to the extent caused by the
tortious conduct of WinStar;
(e) The damage, loss or destruction of any real or tangible personal
property to the extent caused by the tortious conduct of WinStar;
(f) Fines, penalties or other amounts payable due to WinStar's
violation of applicable laws or regulation; and
(g) Any claim, demand, charge, action, cause of action, or other
proceeding asserted against Xxxxxxxx but resulting from an act or
omission of WinStar in its capacity as an employer of a person.
9.3. Indemnification Procedures.
With respect to third-party claims, the following procedures shall
apply:
(a) Promptly after receipt of notice of the commencement or
threatened commencement of any civil, criminal, administrative,
or investigative action or proceeding involving a claim in
respect of which the indemnitee will seek indemnification
pursuant to this Article 9, the indemnitee will notify the
indemnitor of such claim in writing. No failure to so notify the
indemnitor will relieve the indemnitor of its obligations under
this Agreement except to the extent that it can demonstrate
damages attributable to such failure. Within fifteen (15)
calendar days following receipt of written notice from the
indemnitee relating to any claim, but no later than ten (10)
calendar days before the date on which any response to a
complaint or summons is due, the indemnitor will notify the
indemnitee in writing if the indemnitor elects to assume control
of the defense and settlement of that claim (a "Notice of
Election").
(b) If the indemnitor delivers a Notice of Election relating to any
claim within the required notice period, the indemnitor shall be
entitled to have sole control over the defense and settlement of
such claim; provided that (i) the indemnitee shall be entitled to
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participate in the defense of such claim and to employ counsel at
its own expense to assist in the handling of such claim, and (ii)
the indemnitor shall obtain the prior written approval, not to be
unreasonably withheld or delayed, of the indemnitee before
entering into any settlement of such claim or ceasing to defend
against such claim. After the indemnitor has delivered a Notice
of Election relating to any claim in accordance with the
preceding paragraph, the indemnitor shall not be liable to the
indemnitee for any legal expenses incurred by the indemnitee in
connection with the defense of that claim. In addition, the
indemnitor shall not be required to indemnify the indemnitee for
any amount paid or payable by the indemnitee in the settlement of
any claim for which the indemnitor has delivered a timely Notice
of Election if such amount was agreed to without the written
consent of the indemnitor.
(c) If the indemnitor does not deliver a Notice of Election relating
to any claim within the required notice period, or ceases to
defend against the claim, the indemnitee shall have the right to
defend the claim in such manner as it may deem appropriate, at
the cost and expense of the indemnitor. The indemnitor shall
promptly reimburse the indemnitee for all such costs and
expenses.
10. LIABILITY, RISK OF LOSS AND INSURANCE
10.1. General Intent.
Subject to the specific provisions of this Article 10, it is the
intent of the Parties that each Party shall be liable to the other
Party for any actual damages incurred by the non-breaching Party as a
result of the breaching Party's failure to perform its obligations in
the manner required by this Agreement.
10.2. Liability Restrictions.
(a) IN NO EVENT, WHETHER IN CONTRACT OR IN TORT (INCLUDING BREACH OF
WARRANTY, NEGLIGENCE AND STRICT LIABILITY IN TORT), SHALL A PARTY
BE LIABLE FOR INDIRECT OR CONSEQUENTIAL, EXEMPLARY, PUNITIVE OR
SPECIAL DAMAGES EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE
POSSIBILITY OF SUCH DAMAGES IN ADVANCE.
(b) Subject to Subsection (c), below, each Party's total liability to
the other, whether in contract or in tort (including breach of
warranty, negligence and strict liability in tort) shall be
limited to two hundred million dollars ($200,000,000).
(c) The limitation set forth in Subsections (b), above, shall not
apply with respect to: (i) third-party claims subject to
indemnification pursuant to the Agreement; (ii) fees due and
owing under this Agreement at the time of the claim; and (iii)
amounts subject of Cover as provided in Section 3.7(b).
(d) For the purposes of this Section 10.2, all amounts payable or
paid to third parties in connection with claims that are eligible
for indemnification pursuant to this Agreement shall be deemed
direct damages.
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10.3. Insurance Requirements.
(a) During the Term, WinStar shall have and maintain in force the
following insurance coverages:
(i) Worker's Compensation and Employer's Liability. Worker's
Compensation Insurance in amounts required by applicable law
and Employers Liability Insurance with limits not less than
$1,000,000 each accident. If work is to be performed in
Nevada, North Dakota, Ohio, Washington, Wyoming or West
Virginia, the party shall participate in the appropriate
state fund(s) to cover all eligible employees and provide a
stop gap endorsement for these monopolistic states in
WinStar's Worker's Compensation Insurance Program.
(ii) Commercial General Liability. WinStar shall carry broadform
general liability insurance coverage for property damage,
bodily injury, personal injury, contractual liability and
accidental pollution legal liability with coverage of at
least $10,000,000 per occurrence and in the aggregate. Total
limits can be attained by the inclusion of an
Umbrella/Excess Liability policy.
(iii)Automobile Liability. WinStar shall carry automobile
liability insurance written on the occurrence form of
policy. The policy shall provide for bodily injury and
property damage liability covering the operation of all
automobiles used in connection with performing under the
Agreement and shall provide coverage of at least $2,000,000
per occurrence.
(b) WinStar shall cause its insurers to issue certificates of
insurance evidencing that the coverages required under this
Agreement are maintained in force. The minimum limits of coverage
specified herein are not intended, and shall not be construed, to
limit any liability or indemnity of WinStar under this Agreement.
(c) Nothing in this Agreement shall be construed to prevent WinStar
from satisfying its insurance obligations pursuant to this
Agreement under a blanket policy or policies of insurance that
meet or exceed the requirements of this Article.
10.4. Risk of Loss.
(a) Each Party shall promptly notify the other of any matters
pertaining to any damage or impending damage to or loss of
Wireless Fiber Connectivity known to it that could reasonably be
expected to adversely affect the Wireless Fiber Connectivity.
(b) Each Party shall take all reasonable precautions against, and
shall assume liability for, subject to the terms of this
Agreement, any damage caused by it to the property of the other
Party.
(c) Neither Party shall use, or allow others to use, equipment,
technologies, or methods of operation that interfere in any way
with or adversely affect the Xxxxxxxx Connectivity or the
permitted use thereof by Xxxxxxxx, WinStar or authorized third
parties.
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(d) Xxxxxxxx shall not cause or permit any part of the Xxxxxxxx T-1s
to become subject to any mechanic's lien, materialman's lien,
vendor's lien or any similar lien or encumbrance whether by
operation of law or otherwise.
10.5. Force Majeure.
(a) No Party shall be liable for any default or delay in the
performance of its obligations under this Agreement if and to the
extent such default or delay is caused, directly or indirectly,
by fire, flood, lightning, earthquake, elements of nature or acts
of God, riots, civil disorders, rebellions or revolutions in any
country or any other cause beyond the reasonable control of such
Party; provided, however, that (i) the non-performing Party is
without fault in causing such default or delay, and (ii) such
default or delay could not have been prevented by reasonable
precautions and cannot reasonably be circumvented by the
non-performing Party through the use of alternate sources,
workaround plans or other means, including means contemplated by
applicable disaster recovery processes or procedures).
(b) In such event the non-performing Party shall be excused from
further performance or observance of the obligation(s) so
affected for as long as such circumstances prevail and such Party
continues to use commercially reasonable efforts to recommence
performance or observance whenever and to whatever extent
possible without delay. Any Party so delayed in its performance
shall immediately notify the other Party by telephone (to be
confirmed in writing within two (2) business days of the
inception of such delay) and describe at a reasonable level of
detail the circumstances causing such delay. The non-performing
party will provide the other party prompt written notice of the
cessation or termination of the force majeure event.
11. REMEDIES AND DISPUTE RESOLUTION
Any dispute between the Parties arising out of or relating to this
Agreement, including with respect to the interpretation of any provision of
this Agreement and with respect to the performance by Xxxxxxxx or WinStar,
shall be resolved as provided in this Article 11.
11.1. Cumulative Nature.
Except as otherwise expressly provided herein, all remedies provided
for in this Agreement shall be cumulative and in addition to and not
in lieu of any other remedies available to either Party at law, in
equity or otherwise.
11.2. Informal Dispute Resolution.
(a) Prior to the initiation of formal dispute resolution procedures
(i.e., arbitration), the Parties shall first attempt to resolve
their dispute at the senior manager level. If that level of
dispute resolution is not successful, the Parties shall proceed
informally, as follows:
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(i) Upon the written request of either Party, each Party shall
appoint a designated representative who does not otherwise
devote substantially full time to performance under this
Agreement, whose task it will be to meet for the purpose of
endeavoring to resolve such dispute.
(ii) The designated representatives shall meet as often as the
Parties reasonably deem necessary in order to gather and
furnish to the other all information with respect to the
matter in issue that the Parties believe to be appropriate
and germane in connection with its resolution. The
representatives shall discuss the problem and attempt to
resolve the dispute without the necessity of any formal
proceeding.
(iii)During the course of discussion, all reasonable requests
made by one Party to another for non-privileged
non-confidential information reasonably related to this
Agreement shall be honored so that each of the Parties may
be fully advised of the other's position.
(iv) The specific format for the discussions shall be left to the
discretion of the designated representatives.
(b) Prior to instituting formal proceedings, the Parties will first
have their chief executive officers meet to discuss the dispute.
This requirement shall not delay the institution of formal
proceedings past any statute of limitations expiration or for
more than fifteen (15) days.
(c) Subject to Subsection (b), formal proceedings for the resolution
of a dispute may not be commenced until the earlier of:
(i) The designated representatives concluding in good faith that
amicable resolution through continued negotiation of the
matter does not appear likely; or
(ii) Thirty (30) days after the initial written request to
appoint a designated representative pursuant to Subsection
(a), above, (this period shall be deemed to run
notwithstanding any claim that the process described in this
Section 11.2 was not followed or completed).
(d) This Section 11.2 shall not be construed to prevent a Party from
instituting, and a Party is authorized to institute, formal
proceedings earlier to avoid the expiration of any applicable
limitations period, or to preserve a superior position with
respect to other creditors or as provided in Section 11.6(a).
11.3. Arbitration.
If the Parties are unable to resolve a dispute as contemplated by
Section 11.2, and that dispute is not subject to 11.6(a) of this
Agreement, then such dispute shall be submitted to mandatory and
binding arbitration at the election of either Party (the "Disputing
Party") pursuant to the following conditions:
(a) Selection of Arbitrator. The Disputing Party shall notify the
American Arbitration Association ("AAA") and the other Party,
describing in reasonable detail the nature of the dispute, (the
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"Dispute Notice") and shall request that the AAA furnish a list
of five (5) possible arbitrators who have substantial experience
in the telecommunications industry. Each Party shall have fifteen
(15) days to reject two (2) of the proposed arbitrators. If only
one individual has not been so rejected, that person shall serve
as arbitrator; if two (2) or more individuals have not been so
rejected, the AAA shall select the arbitrator from those
individuals.
(b) Conduct of Arbitration. The arbitrator shall allow reasonable
discovery in the forms permitted by the Federal Rules of Civil
Procedure, to the extent consistent with the purpose of the
arbitration. The arbitrator shall have no power or authority to
amend or disregard any provision of this Section 11.3 or any
other provision of this Agreement. In particular, the arbitrator
shall not have the authority to exclude the right of a Party to
terminate this Agreement when a Party would otherwise have such
right. The arbitration hearing shall be commenced promptly and
conducted expeditiously.
(c) Replacement of Arbitrator. Should the arbitrator refuse or be
unable to proceed with arbitration proceedings as called for by
this Section, such arbitrator shall be replaced and a rehearing
shall take place in accordance with the provisions of this
Section. In such case, the replacement for the arbitrator shall
be either selected by the AAA from the original group of
potential arbitrators that were not rejected by the Parties or,
if there are no such arbitrators available, selected by repeating
the process of selection described in Subsection (a), above.
(d) Findings and Conclusions. The arbitrator rendering judgment upon
disputes between Parties as provided in this Section shall, after
reaching judgment and award, prepare and distribute to the
Parties a writing describing the findings of fact and conclusions
of law relevant to such judgment and award. The award of the
arbitrator shall be final and binding on the Parties, and
judgment thereon may be entered in a court of competent
jurisdiction.
(e) Place of Arbitration Hearings. Arbitration hearings hereunder
shall be held in Chicago, Illinois. If the Parties mutually
agree, arbitration hearings may be held in another location.
(f) Time of the Essence. The arbitrator is instructed that time is of
the essence in the arbitration proceeding, and that the
arbitrator shall have the right and authority to issue monetary
sanctions against either of the Parties if, upon a showing of
good cause, that Party is unreasonably delaying the proceeding.
Recognizing the express desire of the Parties for an expeditious
means of dispute resolution, the arbitrator shall limit or allow
the Parties to expand the scope of discovery as may be reasonable
under the circumstances.
11.4. Termination.
A Party shall not be in material breach of this Agreement unless and
until the other Party provides it written notice of default and the
non-performing party has failed to cure within thirty (30) days after
receipt of such notice. Any event of default may be waived in writing
at the non-defaulting Party's option. Upon the failure of a Party to
timely cure its material breach hereunder within the applicable cure
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period, the non-defaulting Party shall have the right to (i) terminate
this Agreement or (ii) subject to the terms of this Article 11, pursue
any legal remedies it may have under applicable law or principles of
equity relating to such breach.
11.5. Suspension of Service.
If Xxxxxxxx does not make any undisputed payment of at least One
Hundred Thousand Dollars ($100,000) within thirty days of the payment
due date, WinStar may suspend service to all Xxxxxxxx T-1s upon five
(5) days' prior written notice if Xxxxxxxx does not cure within such
period. If such non-payment continues for more than thirty (30) days
after receipt of such notice, WinStar shall have the right to
terminate this Agreement.
11.6. Litigation.
(a) Immediate Injunctive Relief. The only circumstance in which
disputes between the Parties shall not be subject to the
provisions of Sections 11.2 and 11.3 is where a Party, in good
faith, determines that a temporary restraining order or other
injunctive relief is its only appropriate and adequate remedy. If
a Party seeks immediate injunctive relief and does not prevail in
substantial part, that Party shall pay the other Party's costs
and attorneys' fees to the extent incurred in responding to or
challenging the request for immediate injunctive relief.
(b) Jurisdiction. The Parties consent to the jurisdiction of the
courts of the State of New York and to jurisdiction and venue in
the United States District Court for the Southern District of New
York for all litigation that may be brought with respect to the
terms of, and the transactions and relationships contemplated by,
this Agreement. The Parties further consent to the jurisdiction
of any state court located within a district that encompasses
assets of a Party against which a judgment has been rendered for
the enforcement of such judgment or award against the assets of
such Party.
(c) Governing Law. This Agreement and performance under it shall be
governed by and construed in accordance with the laws of the
State of New York without regard to its choice of law principles.
11.7. Continued Performance.
Each Party agrees to continue performing its obligations under this
Agreement while any dispute is being resolved except to the extent the
issue in dispute precludes performance (dispute over payment shall not
be deemed to preclude performance except as provided in Section 11.5).
12. GENERAL
12.1. Binding Nature and Assignment.
(a) This Agreement shall accrue to the benefit of and be binding upon
the Parties hereto and any purchaser or any successor entity into
which either Party has been merged or consolidated or to which
either Party has sold or transferred all or substantially all of
its assets.
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(b) Neither Party may, or shall have the power to, assign this
Agreement or delegate such Party's obligations hereunder without
the prior written consent of the other, except to:
(i) An entity that acquires all or substantially all of the
assets of such Party,
(ii) Any Affiliate,
(iii) A successor in a merger or acquisition of either Party, or
(iv) In connection with any financing.
12.2. Entire Agreement.
This Agreement, including any attached Schedules, constitutes the
entire agreement between the Parties with respect to the subject
matter in this Agreement, and supersedes all prior agreements, whether
written or oral, with respect to the subject matter contained in this
Agreement.
12.3. Tariff.
WinStar acknowledges that this is a private non-common carrier
agreement and that any incorporation of WinStar tariff provisions is
done for the convenience of the Parties.
12.4. Consents.
As between the parties, Xxxxxxxx shall be responsible for all
arrangements with copyright holders, music licensing organizations,
performers' representatives or other parties for necessary
authorizations, clearances or consents with respect to transmission
contents.
12.5. Restriction of Transmissions.
Xxxxxxxx will not transmit content that violates applicable law or
carries an unreasonable risk of leading to criminal, civil or
administrative proceedings or investigations against Xxxxxxxx or
WinStar.
12.6. Use and Ownership.
Neither Party shall have any right, title or interest to the equipment
installed by the other Party.
12.7. Non-Solicitation.
Neither Party shall directly or indirectly solicit the other's
employees or contractors without the other Party's written consent,
which shall not be unreasonably withheld.
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12.8. Notices.
All notices, requests, demands, and determinations under this
Agreement (other than routine operational communications), shall be in
writing and shall be deemed duly given (i) when delivered by hand,
(ii) one (1) business day after being given to an express, overnight
courier with a system for tracking delivery, (iii) when sent by
confirmed facsimile with a copy delivered thereafter by another means
specified in this Section, or (iv) four (4) business days after the
day of mailing, when mailed by United States registered or certified
mail, return receipt requested, postage prepaid, and addressed as
follows:
If to WinStar: If to Xxxxxxxx:
WinStar Wireless, Inc. Xxxxxxxx Communications, Inc.
000 Xxxx Xxxxxx Xxx Xxxxxxxx Xxxxxx, Xxxxx 00-0
Xxx Xxxx, XX 00000 Xxxxx, Xxxxxxxx 00000
Attn: EVP, General Counsel Attn: Contract Administration
Facsimile: 212/922-1637 Facsimile: 918/573-6578
With a copy to: With a copy to:
WinStar Wireless, Inc. Xxxxxxxx Communications, Inc.
0000 Xxxxxxxx Xxxx Xxx Xxxxxxxx Xxxxxx, Xxxxx 0000
Xxxxx Xxxxxx, Xxxxxxxx 00000 Xxxxx, Xxxxxxxx 00000
Attn: VP, Commercial and Attn: General Counsel
Legal Operations
Facsimile: 703/288-6647 Facsimile: 918/573-3005
A Party may from time to time change its address or designee for
notification purposes by giving the other prior written notice of the
new address or designee and the date upon which it will become
effective.
12.9. Counterparts.
This Agreement may be executed in several counterparts, all of which
taken together shall constitute one single agreement between the
Parties hereto.
12.10. Relationship of Parties.
Each Party, in performing hereunder, is acting as an independent
contractor, and such Party's personnel (including its subcontractors)
shall not be considered or represented as employees or agents of the
other Party. Neither Party is an agent of the other and has no
authority to represent that Party as to any matters, except as
expressly authorized in this Agreement.
12.11. Severability.
If any provision of this Agreement conflicts with the law under which
this Agreement is to be construed or if any such provision is held
invalid by an arbitrator or a court with jurisdiction over the
Parties, such provision shall be deemed to be restated to reflect as
nearly as possible the original intentions of the Parties in
accordance with applicable law. The remainder of this Agreement shall
remain in full force and effect.
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12.12. Reasonableness, Consents and Approval.
(a) Where this Agreement requires a Party to assist or
cooperate, such requirement shall not be interpreted to
require materially more than a commercially reasonable level
of effort (i.e. the standard applicable will not be "best
efforts" or "exhausting all available means").
(b) Except where expressly provided as being in the sole
discretion of a Party, where agreement, approval,
acceptance, consent, or similar action by either Party is
required under this Agreement, such action shall not be
unreasonably delayed or withheld. An approval or consent
given by a Party under this Agreement shall not relieve the
other Party from responsibility for complying with the
requirements of this Agreement, nor shall it be construed as
a waiver of any rights under this Agreement, except as and
to the extent otherwise expressly provided in such approval
or consent.
12.13. Waiver of Default.
No waiver or discharge hereof shall be valid unless in writing and
signed by an authorized representative of the Party against which such
amendment, waiver, or discharge is sought to be enforced. A delay or
omission by either Party hereto to exercise any right or power under
this Agreement shall not be construed to be a waiver thereof. A waiver
by either of the Parties hereto of any of the covenants to be
performed by the other or any breach thereof shall not be construed to
be a waiver of any succeeding breach thereof or of any other covenant
herein contained.
12.14. Survival.
No termination of this Agreement shall affect the rights or
obligations of any Party with respect to any other provisions of this
Agreement that contemplate performance or observance subsequent to any
termination or expiration of this Agreement.
12.15. Public Disclosures.
All media releases, public announcements, and public disclosures
relating to this Agreement or the subject matter of this Agreement,
including promotional or marketing material, but not including
announcements intended solely for internal distribution or disclosures
to the extent required to meet legal or regulatory requirements, shall
be coordinated with and shall be subject to approval by both Parties
prior to release.
12.16. Third Party Beneficiaries.
Except as otherwise provided in this Agreement, this Agreement shall
not be deemed to create any rights in third parties, including
suppliers and customers of a Party, or to create any obligations of a
Party to any such third parties.
12.17. Amendment.
(a) This Agreement shall not be modified, amended or in any way
altered except by an instrument in writing signed by both
Parties.
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(b) Unless otherwise expressly permitted in this Agreement, WinStar
shall not make any changes to the Exhibits or Schedules attached
hereto that may have a material adverse impact on the performance
or usability of Xxxxxxxx Connectivity without Xxxxxxxx' prior
written consent.
12.18. Order of Precedence.
In the event of a conflict, this Agreement shall take precedence over
the Schedules attached hereto, and the Schedules shall take precedence
over their attached Exhibits.
This order of precedence may be modified in a subsequently-added
Schedule or Exhibit if this modification is explicitly noted in the
corresponding amendment instrument.
12.19. Interpretation.
(a) Terms other than those defined in this Agreement shall be given
their plain English meaning, and those terms, acronyms and
phrases known in the telecommunications and information
technology services industries shall be interpreted in accordance
with their generally known meanings. Unless the context otherwise
requires, words importing the singular include the plural and
vice-versa.
(b) References to "Article," "Section," "Subsection" and "Schedule"
mean references to an article, section, subsection or schedule of
this Agreement, as appropriate, unless otherwise specifically
stated.
(c) The article and section headings in this Agreement are intended
to be for reference purposes only and shall in no way be
construed to modify or restrict any of the terms or provisions of
this Agreement.
(d) The words "include," "includes" and "including," when following a
general statement or term, are not to be construed as limiting
the general statement or term to any specific item or matter set
forth or to similar items or matters, but rather as permitting
the general statement or term to refer also to all other items or
matters that could reasonably fall within its broadest scope.
12.20. Covenant of Good Faith.
Each Party agrees that, in its respective dealings with the other
Party under or in connection with this Agreement, it will act in good
faith.
IN WITNESS WHEREOF, this Agreement has been executed and delivered by the
undersigned officers, thereunto duly authorized, as of the date first written
above.
WINSTAR WIRELESS, INC. XXXXXXXX COMMUNICATIONS, INC.
/s/ Xxxxxxx X. Xxxxxx /s/ Xxxxx Xxxxxx
By: -------------------------------------------- By: ----------------------------------------
Xxxxxxx X. Xxxxxx Xxxxx Xxxxxx
Name: -------------------------------------------- Name: ----------------------------------------
Vice President President, Xxxxxxxx Network
Title -------------------------------------------- Title: ----------------------------------------
December 17, 1998 December 17, 1998
Date: -------------------------------------------- Date: ----------------------------------------
