Exhibit 10.52 ***Text Omitted Filed Separately
Confidential Treatment Request
Under 17 C.F.R. Subsection 200.80(b)(4),
200.83 and 240.24b-2
EXHIBIT 10.52
GLOBAL NAPs REALTY, INC. COLLOCATION AGREEMENT
Global NAPS Realty, Inc., ("GLOBAL") and xXxx.xxx ("CLIENT") hereby agree,
subject to the terms of GLOBAL's General Terms and Conditions which are
incorporated herein by reference, that GLOBAL shall provide and license to
CLIENT the use of collocation space as set out below:
1. Description of Equipment To Be Installed: GLOBAL shall install the
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following equipment for CLIENT's use, if any: None.
2. Client 24-Hour Maintenance Telephone Number: 000-000-0000
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3. Start Date: To Be Determined By Separate Letter Agreement
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4. Rack / Space Requirements:
-------------------------
4.1 Number of Racks: To Be Determined By Separate
Letter Agreement
4.2 Cage Required: To Be Determined By Separate
Letter Agreement
4.3 Installation and materials charges apply to equipment installed by
GLOBAL. All installations must meet GLOBAL installation
Standards. NOTE: All customer specifications or drawings must be
attached and approved by GLOBAL prior to commencement of work.
5. Service Description
-------------------
5.1 GLOBAL shall provide and license to CLIENT rack and cabinet space
at its facility/facilities at To Be Determined By Separate Letter
Agreement. GLOBAL shall provide CLIENT with a single 20 amp, 120
volt electrical service, unless otherwise agreed.
5.2 CLIENT acknowledges that space at GLOBAL's facility is limited
and GLOBAL provides rack and cabinet space under an Agreement
with Global NAPs, Inc., as an accommodation to line service
customers of Global NAPs, Inc. CLIENT may obtain
telecommunication and network services, for redundancy purposes
at this
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facility from vendors other than Global NAPs, Inc., but
not in a monthly dollar amount to exceed service purchased from
Global NAPs, Inc.
5.3 It is specifically understood between the parties that this
Agreement creates a license to use rack space and not a leasehold.
The parties specifically agree that in the event this Agreement is
terminated, GLOBAL may only take possession of the subject space
after completion of Porting Services referenced in Addendum, Item
#4. Under no circumstances must GLOBAL initiate a Summary Process
action to regain possession of the space. Upon termination of the
license, GLOBAL may, if necessary, physically remove CLIENT's
equipment from the rack space or, at its discretion, may obtain
injunctive relief to compel CLIENT to remove said equipment.
5.4 Intentional Interference: In the event that CLIENT intentionally
interferes with another party's rack space, this Agreement shall
terminate immediately and, in addition to all other remedies set
forth herein, CLIENT shall forfeit the contents of its rack space
to GLOBAL.
6. Compensation
------------
6.1 CLIENT agrees to pay GLOBAL a one time set up fee of [...***...]
per rack, and an annual charge of [...***...] per rack to be paid
in twelve monthly installments of [...***...] per month per rack.
CLIENT acknowledges that this figure reflects a discount which
shall be granted if, and only if, payment is received by GLOBAL
on or before the first day of the month. If payment is not
received by the first day of the month, CLIENT will pay
[...***...] per month per rack. CLIENT shall pay for its
electricity. GLOBAL shall provide CLIENT with a good faith
estimate of CLIENT'S average electrical usage on a monthly basis
and CLIENT will pay for same. If CLIENT disputes GLOBAL's
assessment of CLIENT's use, CLIENT may, at its own expense,
separately meter its electrical usage and pay GLOBAL in
accordance with the meter reading.
6.2 CLIENT shall pay to GLOBAL the set up fee and the first monthly
rack charge upon execution of this Agreement. Subsequent monthly
rack charges shall be paid in advance of the month to which they
apply. GLOBAL shall invoice CLIENT for estimated electrical usage,
and these invoices shall be paid within Thirty (30) days following
the date of CLIENT's invoice. CLIENT's payments to GLOBAL shall be
made without set off.
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6.3 Any charges not paid when due, shall be subject to late charges at
one and one-half percent (1 1/2%) per month.
6.4 GLOBAL may terminate this Agreement upon Ten (10) days written
notice and without waiving any other rights if any charge is not
paid in full within Thirty (30) days after the due date. In such
event CLIENT shall be responsible for all unpaid charges plus all
of GLOBAL's costs and expenses associated with the collection of
said unpaid charges (including attorneys' fees).
7. Certain Federal, State and Local Taxes
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7.1 Any state or local excise, sales, or use taxes (excluding any
taxes on income) resulting from the performance of this Agreement
shall be borne by the Party upon which the obligation for payment
is imposed under applicable law even if the obligation to collect
and remit such taxes is placed upon the other Party. Each Party
shall be responsible for filing all returns for federal, state or
local sales, use, excise, governmental, or other taxes or tax-like
fees imposed on or with respect to its services.
7.2 To the extent permitted by applicable law, the Party obligated to
pay such taxes may contest the same in good faith and shall be
entitled to the benefit of any refund, provided that such Party
cannot permit any lien to exist on any assets of the other Party
by reason of any such contest.
WITNESS our hands and seals this 20th day of April, 1999.
Global NAPs Realty, Inc. ("GLOBAL")
By: /s/ XXXXXXX XXXXXX
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(Signature)
Xxxxxxx Xxxxxx
-----------------------------
(Name)
Vice President
-----------------------------
(Title)
xXxx.xxx
0000 Xxxxxx Xxxx
Xxxxx Xxxx, XX 00000-0000
tel: 000-000-0000
fax: 000-000-0000
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e-mail: xxxx@xxxx.xxx
("CLIENT")
By: /s/ XXXXXX XXXXXXX
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Xxxxxx Xxxxxxx, President & COO
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GENERAL TERMS AND CONDITIONS
The following General Terms and Conditions are incorporated into the
agreements between Global NAPs, INC., Global NAPs Realty, INC. and/or Global
NAPs Networks, Inc. (each hereinafter referred to as "GLOBAL") and xXxx.xxx
("CLIENT").
1. Term and Termination
--------------------
1.1 The initial term of this Agreement is One (1) year and thereafter
shall continue from month to month until either Party gives
Thirty (30) days written notice of termination to the other or as
otherwise provided for herein. If substantially all of the assets
of either Party are sold the buyer may, upon Nine (9) months
written notice, terminate this contract.
1.2 Except as otherwise provided for herein, in the event that either
Party commits a material breach of this Agreement, and fails to
cure such breach within Thirty (30) days after written notice of
such breach from the nonbreaching Party, the non-breaching Party
may terminate this Agreement.
1.3 Neither Party shall be relieved of its respective obligations
arising prior to the termination of this Agreement.
1.4 In the event that CLIENT intentionally interferes with another
party's rack space, this Agreement shall terminate immediately
and, in addition to all other remedies set forth herein, CLIENT
shall forfeit the contents of its rack space to GLOBAL .
2. Severability
------------
In the event that any one or more of the provisions contained
herein shall for any reason be held to be unenforceable in any
respect under the laws of the jurisdiction governing the entire
Agreement, such unenforceability shall not affect any other
provision of this Agreement, but this Agreement shall be construed
as if such unenforceable provision or provisions had never been
contained herein.
3. Amendments: Waivers
-------------------
3.1 Except as otherwise provided herein, this Agreement may be amended
only by written Agreement signed by authorized representatives of
both Parties.
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3.2 No waiver of any provisions of this Agreement and no consent to
any default under this Agreement shall be effective unless the
same shall be in writing and signed by or on behalf of the Party
against whom such waiver or consent is claimed. No course of
dealing or failure of any Party to enforce any term, right or
condition of this Agreement shall be construed as a waiver of such
term, right or condition.
4. Independent Contractors
-----------------------
Each Party shall perform its obligations hereunder as an
independent contractor and not as the agent, employee or servant
of the other Party, and neither Party nor any person furnished by
such Party shall be deemed employees, agents or servants of the
other Party or entitled to any benefits available under the plans
for such other Party's employees.
5. No Exclusivity
--------------
Nothing herein shall be construed to prohibit either Party from
entering into similar arrangements with any third Party, or to use
its own assets and personnel for any legitimate business purpose.
6. Force Majeure
-------------
Neither Party shall be held liable for any delay or failure in
performance of any part of this Agreement from any force majeure
condition, including acts of God, acts of civil or military
authority, government regulations, embargoes, epidemics, war,
terrorist acts, riots, insurrections, fires, explosions,
earthquakes, nuclear accidents, floods, strikes, power blackouts,
unusually severe weather conditions, inability to secure products
or services of other persons or transportation facilities, acts of
GLOBAL's suppliers, acts or omissions of transportation common
carriers, or other causes beyond their reasonable control whether
or not similar to the foregoing conditions.
7. Warranty
--------
GLOBAL warrants that it has as of the Effective Date hereof, the
right to provide the Service to CLIENT. GLOBAL makes no other
warranties with respect to its provision of the Service under this
Agreement, either express or implied. GLOBAL AND ITS SUPPLIERS
EXPRESSLY DISCLAIM ALL IMPLIED WARRANTIES, INCLUDING WARRANTIES OF
MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE.
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8. Liabilities
-----------
NEITHER PARTY SHALL BE LIABLE FOR ANY LOSS OR DAMAGE INCURRED BY
REASON OF OR INCIDENTAL TO SUCH PARTY'S OBLIGATIONS UNDER THIS
AGREEMENT. SUCH LIMITATION OF DAMAGES SHALL INCLUDE, BUT NOT BE
LIMITED TO, AMOUNTS FOR INDIRECT, SPECIAL OR CONSEQUENTIAL DAMAGES
OF ANY KIND WHATSOEVER, INCLUDING LOST REVENUE OR LOST PROFITS,
EVEN IF ADVISED OF THE POSSIBILITY THEREOF, WHETHER SUCH DAMAGES
ARISE OUT OF BREACH OF CONTRACT, BREACH OF WARRANTY, NEGLIGENCE,
STRICT LIABILITY OR ANY OTHER THEORY OF LIABILITY AND WHETHER SUCH
DAMAGES WERE FORESEEABLE OR NOT AT THE TIME THIS AGREEMENT WAS
EXECUTED.
9. Indemnification
---------------
To the extent not prohibited by law, and except as otherwise
provided herein, the Parties shall indemnify, defend and hold each
other and their suppliers harmless from and against any loss,
cost, claim, injury or liability brought by a person not a party
or an affiliate under this Agreement that relates to or arises out
of their own acts or omissions or the acts or omissions of their
employees, agents or contractors in the use of the Service under
this Agreement, whether negligent or otherwise. The Parties shall
notify each other of any claims as soon as practicable, and
reasonably cooperate with each other in the defense of any claims.
10. Governing Law
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This Agreement shall be deemed to be a contract made in the State
of Massachusetts, and the construction, interpretation, and
performance of this Agreement shall be governed by the substantive
laws of said State.
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11. Executed in Counterparts
------------------------
This Agreement may be executed in any number of counterparts, each
of which shall be an original; but such counterparts shall
together constitute but one and the same document.
12. Headings
--------
The headings and numbering of sections in this Agreement are for
convenience only and shall not be construed to define or limit any
of the terms herein or affect the meaning or interpretation of
this Agreement.
13. Entire Agreement
----------------
This Agreement, including any Attachments, constitutes the entire
Agreement between the Parties and supersedes all prior oral or
written Agreements, representations, statements, negotiations,
understandings, proposals or undertakings with respect to the
subject matter hereof.
14. Notices and Demands
-------------------
All notices, demands, requests, elections, or other communications
herein provided to be given or which may be given by one Party to
the other Party shall be made in writing and, except as otherwise
provided herein, such notices, demands, requests, elections, or
other communications shall be deemed to have been duly given when
received. If hand delivered, any such notice, demand, request,
election or other communication shall be deemed to have been
received on the business day received; if sent by registered or
certified mail, return receipt requested, the date of receipt; if
sent by overnight courier, the day after delivery to the courier;
and if sent by electronic facsimile and followed by an original
sent via overnight or first class mail, the date of confirmation
of the facsimile; and in all cases shall be addressed as follows:
If to GLOBAL:
Xxxxxxx X. Xxxxxx, Xx.
General Counsel
Global NAPs, Inc.
Xxx Xxxxxxxxxx Xx.
Xxxxxx, XX 00000
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If to CLIENT: At the address set forth in the Agreement.
The address to which such notices may be given by either Party may
be changed by written notice given by such Party to the other
Party pursuant to this Section. All notices sent hereunder,
whether by mail, overnight courier, or personal delivery, shall be
sent return receipt requested.
15. Third-Party Beneficiaries
-------------------------
This Agreement shall not provide any person not a Party to this
Agreement with any remedy, claim, liability, reimbursement, cause
of action or other right in excess of those existing without
reference to this Agreement. Either Party may, however, assign
this contract to an affiliate, parent or subsidiary upon Seven (7)
days written notice.
16. Delegation and Assignment
-------------------------
16.1 Neither Party may assign, transfer, or sell its rights under this
Agreement, or delegate its obligations hereunder, without the
prior written consent of the other Party which written consent
will not be unreasonably withheld. The Parties may, however,
assign their rights or delegate their obligations to affiliated or
successor corporations, or parent or subsidiary corporations.
16.2 Subject to the above restrictions, the provisions of this
Agreement shall be binding upon and shall inure to the benefit of
the Parties and their permitted assigns and successors.
17. Survival
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The provisions contained herein, the provisions contained in the
Telephone Switch Service Agreement and the provisions contained in
the Collocation Agreement, if any, between the Parties shall
survive the termination of said Agreements.
18. Governmental Compliance
-----------------------
18.1 Each Party shall perform this Agreement in compliance with all
applicable federal, state, county, and local laws, regulations,
government agency orders or decisions and codes, and shall obtain
permits and certificates where needed. In the event that such
permits or certificates cannot be obtained, or in the event that
legislative, regulatory, other legal action or changes in laws
invalidate a material term(s) of this Agreement or adversely
affects a Party's ability to perform a material term(s) of this
Agreement, the Parties shall attempt to renegotiate a new term(s)
as may be
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required to allow this Agreement to continue. In the event that
such new term(s) cannot be renegotiated, and the ability of one or
both Parties to perform this Agreement has been materially
adversely affected, then, the adversely affected Party shall have
the right to terminate this agreement upon Thirty (30) days
notice.
18.2 All obligations under this Agreement shall be performed in
compliance with those statutes, government agency orders, and
regulations prohibiting discrimination against any employee or
applicant for employment because of race, color, religion, sex,
national origin, age, or handicap. Where required by law,
certificates of compliance shall be provided.
19. Confidentiality
---------------
The Parties covenant and agree that they will not either during
the term of this agreement, or at any time thereafter, disclose
to anyone any confidential information concerning each other's
business or affairs. Information shall be considered confidential
only if it is clearly marked as confidential or designated in
writing as confidential before being provided to the other Party.
WITNESS our hands and seals this 20th day of April, 1999.
Global NAPs Realty, Inc. ("GLOBAL")
By: /s/ XXXXXXX XXXXXX
-----------------------------
(Signature)
Xxxxxxx Xxxxxx
-----------------------------
(Name)
Vice President
-----------------------------
(Title)
xXxx.xxx
0000 Xxxxxx Xxxx
Xxxxx Xxxx, XX 00000-0000
tel: 000-000-0000
fax: 000-000-0000
e-mail: xxxx@xxxx.xxx
("CLIENT")
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By: /s/ XXXXXX XXXXXXX
-------------------------------
Xxxxxx Xxxxxxx, President & COO
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B ADDENDUM
The following Addendum is incorporated into the standard agreements
between GLOBAL NAPS, INC., Xxx Xxxxxxxxxx Xxxx, Xxxxxx, XX 00000 (hereinafter
referred to as "Global") and xXxx.xxx, Inc., 0000 Xxxxxx Xxxx, Xxxxx Xxxx, XX
00000 (hereinafter referred to as "Client").
Whereas, Global is in the business of providing telecommunication services
either directly or through its affiliates.
Whereas, Client is in the business of providing facsimile services and is
in need of telecommunications services for said business. Specifically, client
requires large blocks of telephone numbers for use in its facsimile service
business.
Whereas, Client wishes to obtain telecommunications services from Global
and its subsidiaries or affiliates at its various locations throughout the
United States and Global wishes to provide said services.
Now, therefore, in consideration of the mutual provisions contained herein
and other good and valuable consideration, the receipt and sufficiency of which
are hereby acknowledged, Global and Client hereby agree as follows:
1. Telephone Numbers. Global, its subsidiaries and affiliates, shall use
their best efforts to obtain for Client the telephone numbers that it
requires for its facsimile service business.
2. Stock Option. For every [...***...] telephone numbers that Global, its
subsidiaries or its affiliates provides to Client and Client accepts,
Client shall provide Global with a stock option to purchase 2,500
shares of common stock of Client at the then current fair market price.
The maximum number of options shall not exceed 100,000 shares. This
option may be exercised by Global or its designee at anytime for a
period of three years after receipt of said option.
3. Additional Payment. Client shall, in addition to all other payments
required for the services rendered by Global, pay Global [...***...] per
telephone number per month for each telephone number provided to Client
by Global, its subsidiaries or its affiliates up to [...***...]
telephone numbers. Global and Client shall negotiate in good faith
regarding treatment of telephone numbers in excess of [...***...].
4. Porting. In the event that Client wishes to have any or all of its
telephone numbers ported from Global, its subsidiaries or its
affiliates, to another telecommunications carrier, whether by means of
local number portability (" LNP") or remote call forwarding ("RCF"),
Client agrees to pay Global its standard charge for this service which
shall
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include all costs Global, its subsidiaries or its affiliates, reasonably
incur in providing said service as well as a reasonable markup.
5. Cooperative Marketing. The parties agree to engage in cooperative
marketing ventures whereby they shall assist each other in marketing
their products. This shall include but not be limited to including
links for each other on their respective Internet Web pages.
6. Initial Order. Client agrees to make an initial order of [...***...]
telephone numbers.
7. Additional Terms. The parties acknowledge that there are no additional
terms except those terms that appear in the telecommunications and
collocation agreements executed by the parties, however the terms of
the general Terms and Conditions shall govern where applicable.
In Witness Whereof, the parties hereto have signed this agreement as a
sealed instrument on this 20th day of April, 1999.
Global NAPs, Inc. xXxx.xxx, Inc.
By: /s/ XXXXXXX XXXXXX By: /s/ XXXXXX XXXXXXX
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Xxxxxxx Xxxxxx, Vice President Xxxxxx Xxxxxxx, President
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