EXHIBIT 10.3
COLLOCATION LICENSE AGREEMENT
This Collocation License Agreement (the "Agreement") is made as of the
3rd day of February, 1998 (the "Effective Date"), by and between NEXTLINK Texas
Inc. with an office at 0000 Xxxxxxxxxxx Xxxx, Xxxxx 000, Xxxxxx, XX 00000
("NEXTLINK"), and (Preferred Voice Inc.) a (Delaware) corporation, with an
office at (0000 Xxxxxxxxxx Xxxxxx, Xxx 000, Xxxxxx, Xxxxx 75206) ("Licensee").
In consideration of the mutual covenants and promises described herein, NEXTLINK
and Licensee agree as follows:
WHEREAS, NEXTLINK currently owns or leases certain premises (the
"Premises" described in the Collocation Schedule(s) and amendments thereto, if
any, identified herewith and made a part hereof; and
WHEREAS, Licensee desires access to a portion of the Premises to locate
therein certain telecommunications interconnection equipment (as defined below)
and cabling (the "Equipment") for the purpose of interconnecting the Equipment
with NEXTLINK's telecommunications network (the "NEXTLINK Network"); and
WHEREAS, NEXTLINK is willing to grant Licensee a license to occupy a
portion of the Premises upon the terms and conditions hereinafter set forth.
NOW, THEREFORE, in consideration of the mutual covenants contained
herein, Licensee and NEXTLINK (collectively the "Parties") hereby agree as
follows:
1. LICENSE TO OCCUPY AND PERMISSIBLE USE.
A. Subject to the terms provided below, NEXTLINK hereby grants to
Licensee a license (the "License") to Install, operate, maintain, and
repair a telecommunications system, associated equipment, lines and
cables connected thereto (collectively, the "Equipment') in a portion
of the Premises depicted in the Collocation Schedule attached hereto
(the "Equipment Space"). As defined herein, the term "Equipment" shall
mean only transmission equipment, such as optical terminating
equipment and multiplexes, and equipment being collocated by Licensee
to provide ATM, frame relay and other non-voice services to or for the
benefit of its customers. The term "Equipment" shall specifically not
include switching equipment or equipment used to provide voice
services. Licensee shall co-locate the Equipment with NEXTLINK's
telecommunications facilities and associated equipment (the
"Facilities") at the Premises.
B. Each Collocation Schedule shall have attached thereto the following
Exhibits: The Floor Plan for the Equipment Space, identified as
Exhibit A, General Terms and Conditions, identified as Exhibit B and
Dispatch Labor Charges, identified as Exhibit C. Each Collocation
Schedule shall only be effective upon its being dated and subscribed
to by the parties for identification purposes and together with the
terms hereof shall constitute the entire agreement between the parties
with respect to the Equipment Space (collectively the "Agreement");
1
C. Licensee may use the Equipment Space only for purposes of
installing, maintaining and operating Equipment necessary to
support interconnection to the NEXTLINK Network.
D. If Licensee should interconnect the Equipment with equipment
or services of any other entity other than NEXTLINK without
obtaining the written consent of NEXTLINK, Licensee shall be
in breach of this Agreement and NEXTLINK may pursue any legal
or equitable remedy, including but not limited to the
immediate termination of the License pursuant to Paragraph 16
of Exhibit B hereto.
3. LICENSE FEE. Licensee shall pay NEXTLINK, at the office of the NEXTLINK or at
such other place as NEXTLINK may designate from time to time, a license fee(s)
set forth in the Collocation Schedule for Licensee's use of the Equipment Space
under the terms and conditions set forth herein (the "License Fee"). Licensee
shall pay the License Fee in equal monthly installments in advance on the first
day of each month. Licensee shall pay NEXTLINK interest at the rate of 11/2% per
month on all sums not paid when due hereunder or the highest monthly interest
rate legally permissible, whichever is less.
4. TERM. The term of the License to occupy each Equipment Space shall begin on
the Requested Service Date," set forth in paragraph 3 of each Individual
Collocation Schedule or, If applicable, on the date that NEXTLINK completes the
build-out of the Equipment Space, whichever is later. The minimum term of the
Licensee's license to occupy the Equipment Space shall be the period set forth
in each Collocation Schedule (the "Term"). In the event that NEXTLINK is delayed
in tendering possession of the Equipment Space to the Licensee for any reason
other than the acts or omissions of Licensee, Licensee shall not be obligated to
pay the Occupancy Fee or Service Fee set forth in the Collocation Schedule until
such time as NEXTLINK tenders possession of the Equipment Space to Licensee.
Except as provided herein, NEXTLINK shall not be liable to Licensee in any way
as a result of such delay or failure to tender possession.
5. RENEWAL. Licensee shall have an option to renew the Term for an additional 7
year period, subject to agreement by the parties on the License Fee for the
renewal period, which License Fee will be the higher of the License Fee at the
and of the initial 2 years or the then-current market rate for the License.
Licensee's option to renew the License for each Equipment Space shall be
contingent on the election by NEXTLINK to continue to own or lease the Promises
in which the Equipment Space is located for the duration of the Renewal
Period(s), such election to be exercised at the sole discretion of NEXTLINK
5. ACKNOWLEDGMENT OF UNDERSTANDING. The Parties acknowledge that they have read
the Agreement, understand it and agree to be bound by Its terms and conditions.
Further, the Parties agree that the Agreement is the complete and exclusive
statement of the agreement between the parties relating to the subject matter of
the Agreement, and supersedes all proposals, letters of intent or prior
agreements, oral or written, and all other communications and representations
between the parties relating to such subject matter.
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NEXTLINK Texas, Inc. Preferred Voice, Inc.
By: /s/ D. Xxxxx Xxx By: /s/ Xxxx Xxxxxxx
-------------------------------- ----------------------
Printed Name: D. Xxxxx Xxx Printed Name: Xxxx Xxxxxxx
--------------------- ---------------
Title: Account Representative Title: VP Finance
-------------------------- --------------------
Date: 2/5/98 Date:
-------------------------- --------------------
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COLLOCATION SCHEDULE NO. 1
THIS COLLOCATION SCHEDULE IS MADE ON THIS 3RD DAY OF FEBRUARY, 1999 AND SUBJECT
TO ALL DEFINITIONS, TERMS AND CONDITIONS OF THAT CERTAIN COLLOCATION LICENSE
AGREEMENT, DATED ________, 1999 (THE "AGREEMENT") BY AND BETWEEN NEXTLINK Texas,
Inc., with an office at 0000 Xxxxxxxxxxx Xxxx, Xxxxx 000, Xxxxxx, Xxxxx 00000
("NEXTLINK"), and Preferred Voice, Inc., a Delaware corporation, with an office
at 0000 Xxxxxxxxxx, Xxxxx 000, Xxxxxx, Xxxxx 00000.
1) ADDRESS OF TERMINAL FACILITY 2. SPACE ALLOCATION
-------------------------------- ----------------------------
-------------------------------- ----------------------------
-------------------------------- ----------------------------
3. MINIMUM TERM: 2 YEARS 4. RENEWAL PERIOD
Requested service date: _______ (To be completed at time of
Renewal)
5. MONTHLY RECURRING SERVICE FEES
OCCUPANCY FEES $1,000.00 $50.00/mo. per foot -
$1,000.00/mo. per cabinet
CROSS-CONNECT FEES1 $___________ $100.00/DS-1 x _____
$500.00 DS-3x
POWER CHARGE $___________
AC (120 VOLT)2 $___________ $60.00/mo. per 120 Volt/20
amp "unprotected"
DC $ 200.00 $10.00/mo. per - 48 volt DC
amp "protected"
6. NON-RECURRING FEES
Build-Out Fees $ 2,000.00 $25.00 x ____ per foot or
$2,000 per cabinet
Cross-Connect Install $_________ $100.00 x___ (each DS-1 and
DS-3 installed)
Escort Services $_________ SEE EXHIBIT C
Misc. Labor Charges $_________ SEE EXHIBIT C
7. PRIVATE LINE ACCESS FEES ORDERS WILL BE PLACED ON
SEPARATE AGREEMENT
------------------
(1)A "cross-connect" is an electrical connection made between two DS-1
circuits on a DSX-1 cross-connect panel or two DS-3 circuits on a DSC-3
cross-connect panel which interconnects the Equipment with other
telecommunications services. NEXTLINK shall provide appropriate cable facilities
(i.e., patch cords and cables required to connect DSX-N jacks) between the
Equipment and NEXTLINK common cross-connect panel located at the period beyond
the expiration of the Term of the Agreement.
(2)AC Power charges will be applied based on Customer connected Equipment
load based on an initial survey and adjusted annually based on surveys performed
on or about the anniversary of the original survey.
DS-1 Service $ One Channel Term, Plus
----------------Fixed, Plus Mileage
DS-3 Service $ One Channel Term, Plus
----------------Fixed, Plus Mileage
Muxing Fees $ Marketing/Tariffed Rate
----------------
Private Line NRC $ One Channel Termination
----------------Charge
EXHIBIT A TO THIS SCHEDULE DEPICTS THE WORK LICENSEE SHALL PERFORM TO PREPARE
THE EQUIPMENT SPACE FOR LICENSEE OCCUPANCY AND USE.
LICENSEE: NEXTLINK:
By: By:
---------------------------- ------------------------------
Printed Name: Printed Name:
----------------------- -------------------------
Date: Date:
---------------------------- ------------------------------
[CAPITALIZED TERMS USED HEREIN BUT NOT DEFINED SHALL HAVE THE MEANINGS AS SET
FORTH IN THE AGREEMENT.]
EXHIBIT A to Collocation Schedule No.
EXHIBIT A
TO COLLOCATION SCHEDULE NO. 1
THE FLOOR PLAN
EXHIBIT B
TO COLLOCATION SCHEDULE NO. 1
STANDARD TERMS AND CONDITIONS
1. RESERVATION OF RIGHTS. NEXTLINK reserves the right to grant, renew or extend
similar licenses to others for locating equipment and facilities in the
Premises. Further, nothing contained herein shall be construed as granting to
Licensee any property or ownership rights in the Premises.
2. INTERCONNECTION. NEXTLINK shall allow Licensee to connect the Equipment to
the Facilities in accordance with industry accepted practices and procedures.
3. USE. Licensee shall use the Equipment Space and the Equipment installed
within the Premises solely to provide ATM, frame relay and other non-voice (THIS
PROVISION MAY OR MAY NOT PERTAIN TO YOUR CUSTOMER)telecommunications services to
or for the benefit of its customers. Licensee shall not prohibit or interfere
with the use of the Promises or any portion thereof, by NEXTLINK or other
tenants, licensees or occupants of the Premises. Licensee shall not sublicense,
lease, rent, share, resell or allow the use of the Equipment or Equipment Space,
In whole or In part, by any third party, including but not limited to other
providers of computer or telecommunications services, without NEXTLINK's prior
written consent.
4. ACCESS. Subject to the terms and limitations described herein, including
NEXTLINK's reasonable security measures. NEXTLINK shall provide Licensee
reasonable access to the Premises, including the Equipment Space, 24 hours a
day, 7 days a week, every day of each year, so that Licensee may perform
installation, operation, maintenance, replacement and repair functions. Ali such
access and other activities shall be subject to Licensee's providing NEXTLINK
with reasonable advance notice, and shall be at Licensee's expense. During such
access, Licensee must be accompanied at all times by NEXTLINK's designated
representative. Licensee shall provide full and free access to NEXTLINK to the
Equipment at all times.
5. UTILITIES AND INTERRUPTIONS.
A. During the Term, NEXTLINK shall furnish to Licensee electrical power
necessary to meet the reasonable requirements of Licensee, at the Promises. If
the power provided by NEXTLINK causes interference with the proper operation of
Licensee's Equipment, Licensee will be responsible for providing at Licensee's
sole expense any filtering or regulation devices within the Equipment Space, to
correct the interference.
B. Licensee shall pay all costs associated with installation of a
separate electrical panel and meter for the Equipment in the Equipment Space.
Licensee shall pay, and otherwise be responsible for and indemnify NEXTLINK
against all electrical, HVAC and other utility costs attributable to such
Equipment and all of Licensee's activities in the Promises. Licensee shall pay
for electrical, HVAC and other utility costs directly to the applicable
utilities and vendors, or Licenses's pro rata share of such costs to NEXTLINK if
NEXTLINK is billed therefor by the utilities.
C. NEXTLINK shall use all reasonable efforts to notify Licensee in
advance of any planned utility or other interruptions or outages which may
interfere with Licensee's use. Further, the parties shall use their best efforts
to avoid any unnecessary interruptions and, where required, to work with each
other to plan and coordinate necessary service and utility interruptions so as
to minimize disruptions to Licensee's Equipment and NEXTLINK's Facilities.
However, NEXTLINK shall not be liable, including without limitation to Licensee
or any of its customers, for any damages, liabilities or expenses resulting from
or caused by such interruptions or outages.
6. INSTALLATION.
A. Prior to the commencement of any work at or around the Premises,
Licensee shall, at its cost and expense, prepare and deliver to NEXTLINK working
drawings, plans and specifications (the "Plans"), detailing the technical
characteristics, location and size of the Equipment and/or the Equipment Space,
specifically describing the proposed installation and related work, and
detailing the schedule for all installation activities related hereto. No work
shall commence until NEXTLINK, in its sole discretion, has approved the Plans in
writing. The Equipment shall be designed and constructed so as to prevent
electromagnetic and radio frequency signal leakage.
B. Licensee shall:
I. perform Such installation and related work in a safe
manner consistent with the Equipment manufacturers' specifications and other
requirements provided by NEXTLINK:
II. perform such construction and work so as to minimize
interference with the operation of the Premises and the occupants' activities
and businesses;
III. perform heavy construction or installation activities,
which would reasonably be considered as disruptive or noisy, before 8:00 a.m.
and after 5:00 p.m
IV. obtain necessary federal, state and municipal permits,
licenses and approvals, prior to the commencement of any installation and
related work;
V. conduct its installation activities with manufacturer-
certified technicians;
VI. be responsible for safety conditions in the areas of
work performance at all
times;
VII. keep the installation areas safe and orderly at all
times; and
VIII. upon completion of installation, leave the Premises
clean and free from all of its materials, tools, and equipment not required
after Installation and from all rubbish and debris which result from
installation.
C. NEXTLINK shall have the right to order Licensee to stop its
installation activities, without liability to NEXTLINK, it such activities are
interfering with the operation of the Promises or the occupants' activities and
quiet enjoyment thereof..
7. LICENSEE'S COVENANTS AND WARRANTIES. LICENSEE HEREBY COVENANTS AND WARRANTS:
A. To keep the Equipment Space and the Equipment in good order, repair and
condition throughout the Term and to promptly and completely repair all damage
to the Premises caused by Licensee;
B. To comply with federal, state and municipal laws, orders, rules and
regulations applicable to its activities and the Equipment; and
C. Not to disrupt, adversely affect or interfere with other providers of
services in the Promises or with any occupant's use and enjoyment of its leased
premises or the common areas of the Premises.
8. EQUIPMENT OWNERSHIP AND MAINTENANCE.
A. The Equipment shall belong to Licensee and shall be located in the
Premises at the sole risk of Licensee, and NEXTLINK shall not be liable for
damage thereto or theft, misappropriation or loss thereof, except in the event
of NEXTLINK's gross negligence or willful misconduct. All Equipment supplied by
Licensee shall be labeled by the Licensee as such.
B. Licensee shall at its sole expense maintain and repair its Equipment,
including without limitation to avoid hazard or damage to the Facilities or
injury to NEXTLINK employees, agents and suppliers or to the public. In case
where additional protedon facilities are required, the same shall be provided by
Licensee, at Licensee's sole expense. NEXTLINK shall have no responsibility for
the maintenance and repair of the Equipment, except that NEXTLINK shall agree to
maintain the Equipment in accordance with the Equipment manufacturers'
specifications, subject to Licensee's payment to NEXTLINK of fees which would be
agreed upon by the parties in advance of NEXTLINK providing such Maintenance
services and subject to Licensee's providing training or arranging with the
Equipment manufacturers to provide NEXTLINK with training on maintaining the
Equipment. Licensee shall pay the costs for any such training received by
NEXTLINK.
C. At the expiration or termination of this Agreement, Licensee will remove
the Facilities and Licensee's personal property from the Premises In a neat and
orderly manner, and repair all damage caused by such removal, at Licensee's sole
cost and expense. Any property not so removed within 60 days after the
expiration or termination of this Agreement shall be deemed the property of
NEXTLINK and Licensee shall be liable for all costs incurred by NEXTLINK from
removing the Equipment which Licensee failed or refused to remove and from
repairing the Premises as a result thereof.
9. CONDITION OF EQUIPMENT SPACE AND PROMISES. NEXTLINK makes no warranty or
representation regarding the Premises, including without limitation that the
Equipment Space, the Facilities or the Promises are suitable for the License or
its Intended use thereof. Licensee has inspected the Equipment Space and the
Promises. accepts the same was is" and agrees that NEXTLINK is under no
obligation to perform any work or provide any materials to prepare the Equipment
Space or the Premises for Licensee.
10. LIMITATIONS ON USE AND RELOCATION.
A. NEXTLINK may limit the use of the Equipment Space or any portion
thereof by Licensee hereunder when necessary because of conditions beyond its
control as set forth in 17.a and 17.n. In addition, NEXTLINK reserves the right
at all time during the Term to suspend any and all services and/or Facilities to
be provided hereunder, including, without limitation to furnishing of electrical
power, and remove, change or otherwise terminate the operation of
Licensee-supplied Equipment installed in the Equipment Space without notice, it
NEXTLINK deems, in its sole discretion, that such actions necessary to protect
the public or NEXTLINK personnel, agents, and NEXTLINK Facilities or services
from damages or injury of any kind. NEXTLINK may also effect such action after
notice to Licensee in accordance with Section 16.a hereof. Where possible,
NEXTLINK will notify Licensee promptly of such action and work in cooperation
with Licensee to effect such remedies so as to permit the Equipment to be
returned to operation in an acceptable manner.
B. NEXTLINK shall have the right to relocate or require the relocation
of the Equipment if such relocation was necessary or desirable, in NEXTLINK's
reasonable judgment, including without limitation due to damage to the Premises.
In such event, NEXTLINK shall provide Licensee with reasonable advance notice of
the need to relocate such Equipment, and the parties shall meet to agree upon
the activities required for such relocation. Licensee shall be responsible for
all costs resulting from such relocation of the Equipment. It Licensee and
NEXTLINK are unable to agree upon the terms of such relocation, Licensee can
terminate the Agreement, subject to Licensee's performing its obligations
resulting from termination.
11. INDEMNIFICATION. Licensee shall defend, indemnify. and hold NEXTLINK its
principals, officers, directors, agents, and employees harmless from and against
any loss, cost, damage, liability, claims and expenses of any kind arising
directly or indirectly from the installation, operation, maintenance and repair
of the Equipment or from Licensee's or any of Licensee's subcontractors' or
agents' acts or omissions including, but not limited to, reasonable attorneys'
fees and court costs, except to the extent such loss, damage, cost or expense is
due to the gross negligence or willful misconduct of NEXTLINK or its employees
or agents. The provisions of this Section 11 shall survive termination of this
Agreement.
12. INSURANCE.
A. Licensee shall maintain such insurance, including through a blanket
policy, as will fully protect both Licensee and NEXTLINK from any and all claims
by employees of Licensee under the Workers' Compensation Act or employees
liability laws, including any employers' disability insurance laws, and from any
and all other claims of whatever kind or nature for any and all damage to
property or for personal injury, including death to anyone whomsoever, that may
arise from Licensee's acts or omissions, including without limitation
installation, operations, maintenance or repair services, in or around the
Premises by Licensee or by anyone directly or indirectly engaged or employed by
Licensee. Licensee shall provide NEXTLINK with certificates evidencing the
required coverage before NEXTLINK begins any installation work or services in or
around the Premises and indicating that NEXTLINK shall be notified not less than
sixty (60) days prior to any cancellation or material
change in any coverage. Such insurance shall also name NEXTLINK as an additional
insured party under the coverage.
B. Licensee's General Liability Insurance shall be a combined single
limit of $2,000,000.
C. Insurance described in subsections (a) and (b) of this Section 12
shall be maintained by Licensee throughout the term of this Agreement and any
period during which any claims arising from this Agreement are or may be
outstanding. Upon Licensee's default in obtaining or delivering any such policy
or certificate of insurance or Licensee's failure to pay the premiums therefor,
NEXTLINK may (but shall not be obligated to) secure or pay the premium for any
such policy and charge Licensee the cost of such premium, or NEXTLINK may
terminate this Agreement without liability to Licensee.
13. LIENS. Licensee shall be responsible for the satisfaction or payment of any
liens for any provider of work, labor, material or services claiming by, through
or under Licensee. Licensee shall also indemnify, hold harmless and defend
NEXTLINK against any such liens, including reasonable attorneys' fees. Such
liens shall be discharged by NEXTLINK within 30 days after notice of filing
thereof by bonding, payment or otherwise, provided that Licensee may contest any
such liens in good faith and by appropriate proceedings.
14. SUBCONTRACTORS. Licensee may subcontract any portion of work within the
Promises contemplated by this Agreement to any entity competent to perform such
work. Licensee must obtain NEXTLINK's written approval before utilizing any
subcontractor to perform any activities under this Agreement. In no event shall
such subcontract relieve Licensee of any of its obligations or liabilities under
this Agreement for its subcontractors.
15. CONFIDENTIALITY. The Parties agrees that all documentation and information
provided by the other shall be used solely in connection with the installation,
operation, maintenance, and repair of the Equipment, that all such documentation
and information shall be deemed proprietary to the disclosing party and shall be
received and maintained in confidence. The receiving party agrees to take such
precautions as may be necessary to protect the information from disclosure to
others or from use by itself or others for any purpose inconsistent with this
Agreement without the prior consent of the disclosing party.
16. TERMINATION.
A. Termination for Breach. Either party may terminate the Agreement if
the other party materially breaches any warranty. representation, agreement, or
obligation contained or referred to in the Agreement, provided the non-breaching
party has given the breaching party notice of such breach and there has been a
failure to cure such breach within a 30 calendar day cure period, unless another
cure period is noted below, after receipt of such notice.
B. Events of Material Breach. Events of material breach of a warranty,
agreement, representation, or obligation include, but are not limited to:
I. Interference caused to Facilities or other equipment or
facilities at the Premises by the installation, operation, maintenance,
replacement or repair of the Equipment, which breach must be cured within 24
hours;
II. Failure by Licensee to pay the License Fee and interest as
and when due, which breach must be cured within a ten calendar day period;
III. Breach by either party of any material nonmonetary
provision of the Agreement;
IV. If Licensee abandons or deserts the Equipment during the
Term hereof or Licensee Effective Date.
V. Licensee's failure to complete all installation activities
within three months of the Effective Date.
17. GENERAL.
A. DAMAGES LIMITATION AND DISCLAIMER. IN NO EVENT SHALL EITHER PARTY BE
LIABLE TO THE OTHER PARTY OR TO THE OTHER PARTY'S CUSTOMERS FOR ANY INCIDENTAL,
INDIRECT, SPECIAL, CONSEQUENTIAL OR PUNITIVE DAMAGES, INCLUDING WITHOUT
LIMITATION ANY LOST PROFITS, LOST GOODWILL, OR LOST BUSINESS, ARISING UNDER OR
AS A RESULT OF THIS AGREEMENT, EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE
POSSIBILITY OF SUCH DAMAGES. FURTHERMORE, IN NO EVENT WILL NEXTLINK BE LIABLE TO
LICENSEE FOR ANY DAMAGES, DIRECT OR INDIRECT, TO LICENSEE-SUPPLIED EQUIPMENT
ARISING OUT OF LICENSEE'S USE OF THE PREMISES OR THE SERVICES PROVIDED
HEREUNDER, UNLESS SUCH DAMAGES ARE THE DIRECT RESULT OF NEXTLINK IS GROSS
NEGLIGENCE OR WILLFUL MISCONDUCT.
B. ASSIGNMENT. Licensee shall not assign, transfer or otherwise
encumber any Interest It has hereunder or may have in the Equipment Space, this
Agreement or delegate its duties hereunder without the prior, written consent of
NEXTLINK, which consent will not be unreasonably withhold or unduly delayed;
except that upon notice to the NEXTLINK, Licensee may, without obtaining
NEXTLINK's prior consent, make such assignment to: (a) an entity which Licensee
controls, is controlled by or is under common control with; or (b) an entity
which succeeds to all or substantially all of Licensee's assets whether by
merger, sale or otherwise, provided that the assignee assumes in full the
obligations of Licensee under this Agreement. This Agreement shall inure to the
benefit of and be binding on all successors and assigns. Any assignment in
contravention of these provisions shall be null and void.
C. NOTICE. Every notice required or permitted hereunder shall be in
writing and shall be delivered to the party's address set forth in the preamble
of the Agreement. Either Party May change its address for the purpose of notice
hereunder by providing the other party with notice of the now address.
D. GOVERNING LAW. This Agreement shall be governed by and construed
under the laws of the State of Washington. Venue for any action between the
parties shall be in Seattle. Washington. and Licensee agrees to accept exclusive
personal jurisdiction of such courts.
E. SEVERABILITY. If any term or condition of the Agreement shall to any
extent be held invalid or unenforceable by a court of competent jurisdiction,
the remainder of the Agreement shall not be affected thereby, and each term and
condition shall be valid and enforceable to the fullest extent permitted by law.
F. NONWAIVER. Any failure or delay by either party to exercise or
partially exercise any right, power or privilege under the Agreement shall not
be deemed a waiver of any such right, power, or privilege under the Agreement.
G. MODIFICATIONS. No modifications or amendments to the Agreement and
no waiver of any provisions hereof shall be valid unless in writing and signed
by duly authorized representatives of the parties.
H. BINDING EFFECT. The Agreement binds the named parties and each of
their employees, agents, independent contractors, representatives and persons
associated with it.
I. AUTHORIZATION. Both parties have full power and authority to enter
into and perform this Agreement. The representatives signing this Agreement on
behalf of the parties have been properly authorized and empowered to enter into
this Agreement.
J. ACKNOWLEDGMENT OF UNDERSTANDING. The parties acknowledge that they
have read the Agreement, understand it and agree to be bound by its terms and
conditions. Further, the parties agree that the Agreement is the complete and
exclusive statement of the agreement between the parties relating to the subject
matter of the Agreement, and supersedes all proposals, letters of intent or
prior agreements, oral or written, and all other communications and
representations between the parties relating to the subject matter of the
Agreement.
K. NOTICE OF DELAYS. When either party has knowledge that any actual or
potential situation is delaying or threatens to delay the timely performance of
this Agreement, that party shall, within five working days, give notice thereof,
including all relevant information with respect thereto, to the other party.
L. ATTORNEYS' FEES AND COSTS. If any litigation is brought to enforce,
or arises out of, the Agreement or any term, clause, or provision hereof, the
prevailing party shall be awarded its reasonable attorneys' fees together with
expenses and costs incurred with such litigation, including necessary fees,
costs, and expenses for services rendered, as well as subsequent to judgment in
obtaining execution thereof.
M. INDEPENDENT CONTRACTOR RELATIONSHIP. Nothing contained herein shall
be construed to imply a joint venture, partnership, or employer and employee
relationship between the parties. Neither party shall have any right, power or
authority to create any obligation, express or implied, on behalf of the other
except as defined in this Agreement or as mutually agreed to under the terms
of this Agreement. The employees or agents of one party shall not be deemed or
construed to be the employees or agents of the other party for any purpose
whatsoever.
N. FORCE MAJEURE. Neither party shall be liable or responsible for
delays or failures in performance resulting from events beyond the reasonable
control of such party. Such events shall include but not be limited to acts of
God, strikes, lockouts, riots, acts of war, epidemics, acts of government, fire,
power failures, nuclear accidents, earthquakes, unusually severe weather, or
other disasters, whether or not similar to the foregoing. Licenses shall not be
entitled to xxxxx payment of the License Fee during the pendency of any delays
or failures in performance caused by or resulting from an event beyond the
reasonable control of a party.
O. AUTHORITY. Neither party shall have any authority to bind, obligate
or commit the other party by any representation or promise without the prior
written approval of the other party.
P. REMEDIES. Except as otherwise provided for herein, no remedy
conferred by any of the specific provisions of the Agreement is intended to be
exclusive of any other remedy. Each and every remedy shall be cumulative and
shall be in addition to every other remedy given hereunder, now or hereafter
existing at law or in equity or by statute or otherwise. The election of any one
or more remedies by either party shall not constitute a waiver of the right to
pursue other available remedies.
Q. SURVIVAL. The terms, conditions and warranties contained in the
Agreement that by their sense and context are intended to survive the
performance hereof by the parties hereunder shall so survive the completion of
the performance, cancellation or termination of the Agreement.
EXHIBIT C
to Collocation Schedule No. 1
DISPATCH LABOR CHARGES
The following charges shall be applied for Escort Services and any other labor
performed by NEXTLINK Texas-authorized personnel, employees, or contractors at
the request of the Customer.
1. Normal NEXTLINK Texas business hours. $100.00 for the first 1/2 hour
$50.00 for each additional 1/2
(Monday through Saturday 7:00 am until 7:00 pm, except NEXTLINK observed
holidays)
2. Off Hour NEXTLINK Texas business hours: $300.00 for the first 1/2 hour
$75.00 for each additional 1/2
(Monday through Saturday 7:00 pm until 7:00 am, except NEXTLINK observed
holidays)
3. Sunday and Holiday NEXTLINK Texas $300.00 for the first 1/2 hour
business hours: $75.00 for each additional 1/2
Note: Labor hours are billed in half hour increments. Sunday and Holiday hours
have a four hour minimum.
NEXTLINK TEXAS [Graphic]
POLICY ON COLLOCATION:
THE MONTHLY RECURRING CHARGE FOR RACK COLLOCATION IS $1,000,000, PER MONTH, PER
CABINET. THIS ENTITLES THE CUSTOMER TO:
1) One 7"x23" relay rack or footprint of equivalent size. |_|YES |_| NO
2) Access to -48VDC power feeds. (One "A" and one "B" feed) |_|YES |_| NO
3) Amounts of additional -48DC power @ $10.00/amp |_|YES |_| NO
4) 24 Hour access to their equipment for maintenance. |_|YES |_| NO
5) Card access may be utilized. |_|YES |_| NO
6) Access to 110 VAC power for testing and equipment. |_|YES |_| NO
7) Transmission cabling to the space (non-terminated). |_|YES |_| NO
8) Relay rack grounding. |_|YES |_| NO
9) Environmental monitoring (HVAC, temperature and water) |_|YES |_| NO
10)Labor for Power feeds and relay rack monitoring. |_|YES |_| NO
Please note
IT IS ESSENTIAL FOR THE CUSTOMER TO HAVE -48VDC POWER REQUIREMENTS.
NEXTLINKpowers all equipment on a -48VDC plant with battery back up. In the
event of a local power failure, battery back up will engage. Customer will not
recognize loss of power.
If customer has AC requirements, NEXTLINK will have the customer purchase an
inverter to terminate to the NEXTLINK power plant. NEXTLINK requires the
customer to size inverter to allow forecasting of future growth. AC power is not
protected against disruption in service.
IF NECESSARY, A NON-RECURRING CHARGE BASED ON TIME AND MATERIALS WOULD BE
ASSESSED TO COVER:
1) The labor and hardware required to extend ladder racking.
2) -48VDC power in excess of 10 amps per relay rack being installed.
3) If the customer wishes to supply their own cabinet, the cabinet
will be subject to NEXTLINK approval along with any charges to
install the cabinet.
THE MONTHLY RECURRING CHARGE FOR FLOOR SPACE IS $50.00, PER MONTH, PER FOOT.
THIS ENTITLES THE CUSTOMER TO:
1) Xxxxx Xxxx 00 |_|YES |_| NO
2) Access to -48VOC power feeds. (one "A" and one "B" feed) |_|YES |_| NO
3) Amount -48VDC power required 0 $1 0.00/amp |_|______ AMPS
4) 24 Hour access to their equipment for maintenance. |_|YES |_| NO
5) Card access may be utilized. |_|YES |_| NO
6) 110 VolV20 amp AC Outlet placed inside Customer space |_|YES |_| NO
7) Additional unprotected" 110 Volt/20 amp 0 $60.00/each |_|__________
8) Transmission cabling to the space. (non-terminated) |_|YES |_| NO
9) Relay rack grounding. |_|YES |_| NO
10) Environmental monitoring (HVAC, temperature and water) |_|YES |_| NO
11) Labor for Power feeds and relay rack monitoring. |_|YES |_| NO
Please note:
IT IS ESSENTIAL FOR THE CUSTOMER TO HAVE -48VDC POWER REQUIREMENTS.
NEXTLINK powers all equipment on a -48VDC plant with battery back up. In the
event of a local power failure, battery back up will engage. Customer will not
recognize loss of power.
If customer has AC requirements, NEXTLINK may have the customer purchase an
inverter to terminate to the NEXTLINK power plant. NEXTLINK requires the
customer to size inverter to allow forecasting of future growth.
IF NECESSARY, A NON-RECURRING CHARGE BASED ON TIME AND MATERIALS WOULD BE
ASSESSED TO COVER:
4) The labor and hardware required to extend ladder racking.
5) -48VDC power in excess of 10 amps per relay rack being installed.
6) If the customer wishes to supply their own cabinet, the cabinet will be
subject to NEXTLINK approval along with any charges to install the cabinet.
LOCAL CITY ISSUES FOR RESOLUTION
The customer's equipment is subject to the same environmental, grounding and
operational specifications as the equipment in the NEXTLINK network. Any
equipment that falls outside these parameters would be subject to denial in the
Collocation space. NEXTLINK Engineering would make this determination. All power
maintenance performed by NEXTLINK would be scheduled in such a manner as to
allow for the customer to "man" their equipment if necessary. The cost of
coverage will be at the sole expense of the customer.
____ (Licensee Initial)
SUMMARY OF QUALITY STANDARDS FOR COLLOCATION CUSTOMERS
------------------------------------------------------
EQUIPMENT MOUNTED IN RELAY RACK OR CABINET
A. Must be able to be mounted alone or with brackets supplied to fit into
relay racks or cabinets.
B. If equipment is not able to be mounted alone or with brackets a shelf or
shelves if provided.
CABLING
1. Cable and wire will always be secured with cord or twine. Nylon cable ties
are not acceptable on horizontal cable racks or any location where
personnel safety and cable sheath protection can not be assured.
2. All sewing operations will be ended with a square knot and excess cord
trimmed off.
3. All cables and wire will break off side of cable rack (not be run through
cable rack) to equipment.
4. Protect all cable at break-offs with formed fiber or sheet fiber cut to
size and secured.
5. Rubber or neoprene covered wire must be protected by sheet fiber when it is
secured with cord or nylon ties.
6. Nylon ties may not be used for the following applications: A. Securing
fiber optic cable. B. Securing cable or wire on cable racks and break-offs.
C. Securing power cable.
7. Cut nylon cable ties so that no sharp edges will protrude, they must be
flush or under flush.
8. All types of cable racks containing power wire and cable will have all
threaded rod supports protected with fiber tubing.
SAFETY
9. All reasonable precautions will be taken to avoid physical injury of
personnel, inter of service or damage to equipment. All rings, wrist
watches, metal bracelets, etc. removed for personal safety.
ELECTROSTATIC DISCHARGE (ESD)
10. ALL ESD PRECAUTIONS MUST BE TAKEN.
_____ (Licensee Initial)
