1
EXHIBIT 10.33
Collocate Contract No. _________________________
Collocate Schedule No. _________________________
Amendment No. _________________________
CRF No. _________________________
Credit Approval No. _________________________
COLLOCATE AGREEMENT
WorldCom Network Services, Inc.(R)
THIS AGREEMENT is entered into this ______________ day of ___________, 199_,
between WORLDCOM NETWORK SERVICES, INC.(R) ("WORLDCOM"), and TELEHUB NETWORK
SERVICES CORPORATION, an Illinois corporation, with its principal office at:
0000 Xxx-Xxxxx Xxxx #000, Xxxxxx, XX 00000
RECITALS
A. WORLDCOM owns or leases certain facilities locations (the "PREMISES")
described in the WORLDCOM Collocate Schedule(s) (the "COLLOCATE SCHEDULES") and
amendments thereto, if any, identified herewith and made a part hereof, at which
PREMISES certain services shall be provided in conformity with the applicable
specifications set forth in Exhibits to this Agreement and each relevant
WORLDCOM Collocate Schedule. Each WORLDCOM Collocate Schedule concerning the
above named parties shall be effective upon its being dated and properly
subscribed by the parties and, together with the terms hereof, shall constitute
the exclusive agreement between the parties with respect to allocated and
designated spaces (the "SPACE") at the PREMISES (all such documents being
collectively designated as the "AGREEMENT").
B. Customer desires access to the Premises and to locate therein certain
telecommunications equipment and cabling (hereinafter the "EQUIPMENT") for the
purpose of interconnecting the Equipment with WORLDCOM'S telecommunications
network (the "WORLDCOM Network").
C. WORLDCOM and one or more of its Affiliates is willing to grant Customer
a nonexclusive limited 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,
WORLDCOM and Customer hereby agree as follows:
1. LIMITED LICENSE TO OCCUPY, INTERCONNECTION RESTRICTIONS AND RELOCATION
PROVISIONS. WORLDCOM hereby grants to Customer a nonexclusive limited license
to occupy the portion of the Premises depicted in each attached WORLDCOM
Collocate Schedule (the "SPACE"). Upon completion of the Buildout Services and
Improvements Relevant to Space, (shown in Exhibit I to each Collocate Schedule)
and the acceptance of such Improvements by Customer after their inspection, the
Space shall be deemed by the parties as then accepted "AS-IS" by Customer.
Customer may use the Space only for the purposes of installing, maintaining and
operating the Equipment to interconnect with: (i) digital telecommunications
services provided to Customer or Customer's customer(s) by WORLDCOM and (ii)
local serving arrangements as set forth below. Each Collocation Schedule, and
any amendments thereto, when dated and subscribed by Customer and WORLDCOM,
shall incorporate the terms and conditions of this Agreement. References in this
Agreement to rights or obligations of WORLDCOM shall refer to the rights and
obligations of WORLDCOM and its authorized affiliate as may be named in the
appropriate Collocation Schedule for the Space and Premises to which it
pertains. In the event of any conflict or inconsistency between this Agreement
and the terms set forth in a Collocation Schedule, terms of the Collocation
Schedule shall in all cases prevail, but only for the Space identified in the
conflicting or inconsistent Collocation Schedule.
Customer may interconnect the Equipment with telecommunications services
provided by third parties only with the prior written consent of WORLDCOM except
in those cases where such interconnection: (i) will provide Customer with
interexchange service or switched service which cannot be provided by WorldCom
with reasonably acceptable quality or diversity to a location which is served by
such third party, and such third party is located in the same building in which
the applicable Premises are located, (ii) is with an alternate access facility
(i.e. Customers or a third party's located in the same building in which the
applicable Premises are located, or (iii) is with Customer's other equipment
within the same building in which the applicable Premises are located (i.e.,
Customer's "close located" equipment). WORLDCOM is granted a right of first
refusal in providing all interconnect telecommunications services to Customer.
Said right of first refusal shall be exercised by Customers providing WORLDCOM
with its requirements for such interconnection and WORLDCOM shall have the right
to bid on the provision of such service. If WORLDCOM'S bid is lower than any
bona fide competing bid or quote received by Customer and fully disclosed to
WORLDCOM, and the terms, conditions, quality and reliability of WORLDCOM
services are equal to or better than such competing bid or quote in Customer's
reasonable judgment, then, Customer shall enter into an appropriate safe
agreement with WorldCom for such services. If Customer is in breach of this
provision, WorldCom may pursue any LOYAL OR equitable remedy, including without
limitation, immediate termination of this limited license pursuant to Paragraph
11 of this Agreement.
CONFIDENTIAL MATERIALS
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Collocate Contract No. _______________________
Collocate Schedule No. _______________________
Amendment No. _______________________
CRF No. _______________________
Credit Approval No. _______________________
In all cases, Customer shall always first request DS-1, DS-3 or greater
service level capacities exclusively from WORLDCOM. WORLDCOM shall cooperate
with Customer to either permit or provide Customer with necessary entrance
facility transmission capacity at voice grade or through DS-1 level service, of
up to one 25 pair copper cable, only, as the case may require, over facilities
obtained or to be obtained by WORLDCOM for special or switched access to local
access transport areas over WORLDCOM's local serving arrangements (the "LSAs")
with local exchange carriers, i.e., local exchange telephone service companies
(the "LECs"); provided, however, capacity over WORLDCOM's LSA is not otherwise
available and already committed. If Customer utilizes third party services
through the DS-1 level and WORLDCOM has such capacity available and uncommitted,
WORLDCOM is permitted to charge Customer (i) with respect to DS-1 level and
lesser capacity a monthly amount equal to WORLDCOM's then current charge for the
LSA capacity in question as is generally available to WORLDCOM customers, and
(ii) with respect to DS-3 and greater capacity levels an amount reasonably
determined by WORLDCOM on an individual case basis (the "MONTHLY RECURRING LSA
ANCILLARY SERVICE CHARGE"). The Monthly Recurring LSA Ancillary Service Charge,
once established, shall be fixed for the period during which the interexchange
service or switched service initially associated therewith is contracted for and
provided to Customer subject, however, to adjustment not to exceed the rate that
otherwise would be charged Customer for the equivalent capacity between the same
points by the relevant LEC. In the event Customer requests DS-1 capacity over
such LSAs for the purpose of obtaining switched access service into the LEC's
central office or serving wire center and WORLDCOM agrees, Customer shall not be
subject to a Monthly Recurring LSA Ancillary Service Charge, if, and to the
extent, only, WORLDCOM receives a charge reduction to such LSA from the LEC
providing the LSA, and, provided, further, Customer shall be directly liable to
the LEC for all charges associated with any such switched access service.
If WORLDCOM is unable or unwilling to provide capacity over WORLDCOM's LSA,
Customer may obtain its own entrance facility transmission capacity from the
relevant LEC with no additional charge to Customer from WORLDCOM accruing. In
such case, however, Customer shall direct the LEC to conform its installation of
such facilities to the directives of WORLDCOM. Notwithstanding any provisions of
this Agreement to the contrary, Customer may interconnect its transmission
capacity with other providers of telecommunications services at the relevant
LEC's central office or serving wire center at which entrance facility
transmission capacity is terminated.
All cross connections relevant to interconnecting the Equipment with
WORLDCOM or Customer controlled entrance facility transmission capacity or third
party services or equipment shall be established through WORLDCOM'S common
cross-connect panel in each of the Premises. 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 DSX-3 cross-connect panel, and similarly otherwise, which
then interconnects the Equipment with other telecommunications services.
WORLDCOM may exclusively provide appropriate cable facilities (i.e., patch cords
and cables required to connect DSX-N jacks) between the Equipment and WORLDCOM's
common cross-connect panel located at the Premises. A cross-connect may be
permitted to attach a telecommunications path between the Equipment and any
other third party, provided WORLDCOM, in its reasonable judgment, grants advance
written consent to Customer's cross-connect request. Customer agrees to pay for
the cross-connect services either at rates and terms in accordance with
Customer's digital service agreement with WORLDCOM, or, if such rates are not
provided by WORLDCOM or Customer has no transmission service agreement with
WORLDCOM, then, in accordance with WORLDCOM's then current published recurring
and non-recurring charges for cross-connects and/or applicable ancillary
services. Cross-connect charges payable to WORLDCOM are to be determined by
WORLDCOM according to the level and type of facilities to be connected. Any
cross-connect provided shall not be provided for any period beyond the
expiration of the Term of the license relevant to the Space in which the
Equipment is located. Customer may not provide, or make available to any third
party, space within the Collocation Space without WORLDCOM's prior written
consent. If Customer should provide, or make available to any third party, space
within the Collocation Space without obtaining the written consent of WORLDCOM,
Customer shall be in breach of this Agreement and WORLDCOM may pursue any legal
or equitable remedy, including but not limited to the immediate termination of
the pertinent license.
WORLDCOM shall not arbitrarily require Customer to relocate the Equipment;
however, upon one hundred twenty (120) days' prior written notice or, in the
event of an emergency, such lesser time as may be reasonable or necessary,
WORLDCOM may require Customer for a good and substantial reason and not solely
to accommodate another collocate customer to relocate the Equipment to a site
which shall afford acceptable environmental conditions for the Equipment and
comparable accessibility to the Equipment. All costs of relocating the Equipment
shall be borne by Customer, provided, however Customer shall not be required to
pay for the cost of improving the replacement WORLDCOM Space to which the
Equipment may be relocated. Unless otherwise provided in the written Collocation
Schedule, each visit by Customer or its designee to the Space for security
purposes may require advance permission or escort services to be furnished by
WORLDCOM from the time Customer's Employee or representative sign(s) in upon
arriving at and entering the Premises to the time such personnel signs out upon
leaving. WORLDCOM will specify in writing to Customer those locations that
require escort. Charges for escort services may be charged as a dispatch labor
charge in an amount that is not more than WORLDCOM customarily charges its best
customers for similar services under like circumstances and calculated so as to
provide WORLDCOM with reimbursement for its actual costs.
2. SERVICE; STANDARD SPECIFICATIONS; SPECIAL TERMS. WORLDCOM shall provide
Customer with access and the services (collectively called the "Services")
described in Exhibits attached to each WORLDCOM Collocate Schedule. The Services
shall be performed at the Space during the Term (as hereinafter defined) of the
relevant limited license to the Space and any month-to-month extensions thereof.
WORLDCOM shall use reasonable efforts to provide Services without interruption;
however, WORLDCOM does not warrant that the Services shall be free from
interruptions and WORLDCOM shall not be liable for any failure to provide the
Services. However, a prolonged and continued failure by WORLDCOM to provide the
Services or the environment required to adequately operate or maintain the
Equipment, (and assuming no force majeur event is the cause of such failure),
after allowing WORLDCOM adequate time to correct its failure, and after written
notice from Customer, and such failure condition persists, Customer may
terminate this Agreement as to the particular Space affected by such failure.
Upon any such termination, neither party shall have any further or other
liability to the other, for damages or otherwise, except for obligations under
the Agreement which survive such termination, such as, but not necessarily
limited to, the removal of the Equipment and restoration of the Space by
Customer.
CONFIDENTIAL MATERIALS
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Collocate Contract No. __________________________
Collocate Schedule No. __________________________
Amendment No. __________________________
CRF No. __________________________
Credit Approval No. __________________________
If, at any time during the term of this Agreement, WORLDCOM receives a good
faith offer in writing from another potential collocate customer concerning any
rack, cabinet or Space that does not then have active WORLDCOM interexchange or
switched services installed and being then utilized by Customer; and, if such
offer is substantially similar to the terms and conditions of this Agreement,
("Competitive Offer") and such Competitive Offer would result in an overall net
revenue advantage to WORLDCOM in the aggregate of least ten percent (10%),
WORLDCOM agrees to negotiate in good faith with Customer to revise the rates and
charges set forth above to be competitive with those set forth in the
Competitive Offer. The parties agree that such negotiation will commence within
thirty (30) days of WORLDCOM'S written notice to Customer of receipt of such
Competitive Offer. Customer shall have a right of first refusal to match such
Competitive Offer within sixty (60) days of the notice. WORLDCOM may, if the
offer is not matched by Xxxxxxxx, thereupon reassign the Space, rack or cabinet
concerned and realize the increased revenue opportunity with no further
liability accruing between the parties to this Agreement regarding the
individual Space, rack or cabinet concerned. Such right of first refusal as
described immediately above, however, shall only apply to racks or cabinet Space
not then providing direct interexchange or switched services minimum revenue
comparable to that of the Competitive Offer. Notwithstanding anything in this
paragraph to the contrary, however, Customer will be permitted to keep in
reserve up to 25% of Customers contracted for Space in the WORLDCOM collocation
facility concerned for Customer's future telecommunications equipment needs
hereunder such as, but not necessarily limited to, space for operating ancillary
approved equipment normally required for the proper use of Customer's collocated
Equipment.
Customer shall abide by the standard specifications as set forth in
Exhibits incoporated in each WORLDCOM Collocate Schedule. Customer agrees to
properly maintain all of its Equipment placed in the Space at Customer's sole
expense. Customer acknowledges that it has been granted only a license to occupy
the Space and that it has not been granted any real property interests in the
Space.
Special additional terms and conditions, if any, relevant to a particular
Space may be negotiated between the parties but, to be binding on WORLDCOM, must
be set forth in the appropriate WORLDCOM Collocate Schedule(s). Such special
terms and conditions shall be, constitute and are hereby considered as
"superseding provisions" which provisions shall control in the event of a
conflict between such provisions and the terms stated in this Agreement.
3. TERM OPTIONS TO RENEW AND POSSESSION. Customer's limited license to
occupy each separate Space shall begin as of the Requested Service Date set
forth in the site specific WORLDCOM Collocate Schedule or the date WORLDCOM
completes the build-out of each individual Space, or the date the relevant
Collocate Schedule is accepted and approved by WORLDCOM, whichever is set forth
in the site specific Schedule as the "Billing Commencement Date". The term of
Customer's license to occupy the Space shall be the period set forth as to each
location as specified in the relevant WORLDCOM Collocate Schedule (the "Initial
Terms"). Initial Terms available are month to month, or for a one, two, or three
year duration. Initial Terms shall be specified for each location in the
relevant Collocate Schedule. Any right granted to Customer to renew its license
to occupy the Space shall be contingent upon the election of WORLDCOM to
continue to own or lease the Premises in which the Space is located for the
duration of the Term and any Renewal Period(s).
The Initial Term and any Renewal Periods are collectively referred to as
the "Term". Customer's opportunity to renew this limited license to occupy the
Space shall be contingent upon WORLDCOM electing, in its sole discretion, to
continue to own or lease the Premises in which the Space is located for the
duration of the Renewal Period(s)
Following the expiration of the Initial Term or Renewal Period, if any,
stated in the relevant WORLDCOM Collocate Schedule(s) or failure of either of
the parties to enter into any formal Renewal Periods, Customer's license shall
continue in effect on a month-to-month basis upon the same terms and conditions
specified herein and in the pertinent Collocate Schedule adjusted only as to
then current pricing unless and until terminated by Customer or WORLDCOM upon
thirty (30) days' prior written notification by Customer or WORLDCOM of
non-renewal or termination shall be by certified mail or overnight message
delivery, return receipt requested and such notification shall not be effective
until actually received by WORLDCOM or Customer at its designated "Business
Address". Delivery to Customer shall be presumed effective five days after
mailing or placing with an overnight delivery carrier if undeliverable, refused
or unclaimed by Customer.
If WORLDCOM fails to tender possession of the Space to Customer on or
before the approved Requested Service Date (as specified in the relevant
WORLDCOM Collocate Schedule) this Agreement shall not be void or voidable of
WORLDCOM tenders possession of the Space to Customer within a ninety (90) day
period after such Requested Service Date and such tender is not late due to an
impeding act or omission of Customer. Customer shall be liable for expense or
losses to WORLDCOM caused by any impedance or improper act or omission of
Customer. Customer may, upon written notice to WORLDCOM after failure by
WORLDCOM to tender possession of the Space for causes other than the impeding
acts or omissions of Customer, declare any relevant to the individual Premises
concerned WORLDCOM Collocate Schedule
CONFIDENTIAL MATERIAL
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4
Collocate Contract No. ___________________________
Collocate Schedule No. ___________________________
Amendment No. ___________________________
CRF No. ___________________________
Credit Approval No. ___________________________
to be null and void with no further obligation by Customer for the terminated
Collocate Schedule; provided, however, other obligations of the parties
regarding other collocation sites and Schedules will continue unabated and
without offset.
In the event WORLDCOM is delayed in tendering possession of the Space to
Customer for any reason other than the impeding acts or omissions of Customer,
Customer shall not be obligated to pay occupancy fees or other monthly service
fees (as hereinafter defined) hereunder until such time as WORLDCOM does tender
possession of the Space to Customer. WORLDCOM shall not be liable to Customer
nor to any third party for any consequential or other damages resulting from any
such delay or failure to tender possession.
4. FEES AND TAXES. Customer shall pay WORLDCOM a basic monthly occupancy fee set
forth in each WORLDCOM Collocate Schedule (the "Basic Fee" or "Monthly Recurring
Fee") for this limited license to locate its Equipment in the Space described
therein.
The Basic Fee shall be due and payable, in advance, without notice or
demand; and without abatement, deduction, counterclaim or setoff commencing on
the first day of the Term relevant to the license for the use of each Space and
on the first day of each calendar month thereafter during the Term and any
succeeding term, if applicable, (charges for partial months shall be prorated).
The Basic Fee shall be increased on a pro rata basis by any increases in the
rental incurred by WORLDCOM required under any pertinent lease relevant to the
Premises in which the Space is located (the "LEASE"). Customer shall be liable
to pay any increased occupancy Fee as of the date when WORLDCOM becomes liable
for such payments. WORLDCOM shall notify Customer of such increase as soon as
practicable. Neither Customer's abandonment nor vacating of the Space in
violation of this Agreement shall relieve or reduce Customer's liability to
WORLDCOM for fees and charges.
Customer acknowledges that charges set forth in the WORLDCOM Collocate
Schedules to this Agreement do not include taxes and certain space related
expenses which may fluctuate due to third party landlord, regulatory agency or
taxing authority actions. Customer agrees to reimburse WORLDCOM for any such
applicable taxes, assessments, regulatory fees, expenses, utility increases or
similar charges as prorated and based on Customer's use of the Space (exclusive
of WORLDCOM'S income taxes); such taxes, fees and charges being generally
included in the Basic Fee. Customer further agrees to reimburse WORLDCOM for all
reasonable repair or restoration costs associated with damage or destruction
caused by Customer's personnel, suppliers/contractors or visitors during the
Term; or as a consequence of Customer's unauthorized activities or improper
removal of Equipment or property from the Space. Customer agrees to indemnify,
defend and hold WORLDCOM harmless from any liabilities, costs, expenses
(including without limitation, reasonable expenses of investigation and
attorney's fees and court costs), assessments, settlements or judgments arising
out of or incidental to the imposition, assessment or assertion by any
governmental authority of any tax or increase in tax liability which is or is
claimed to be an obligation of Customer.
5. SERVICE FEE AND BUILD-OUT FEE. Customer shall pay to WORLDCOM for the
Services rendered pursuant to this Agreement the service fee set forth in each
applicable WORLDCOM Collocate Schedule (the "Service Fee"). The Service Fee
shall be payable in advance commencing on the first day of the Term relevant to
the license for the use of the Space and on the first day of each calendar month
thereafter during the Term, and any succeeding renewal period as may be
applicable. If Customer requests WORLDCOM provide services not delineated herein
or in the relevant Collocate Schedule at any time during the Term, Customer
agrees to pay WORLDCOM'S then current time and materials price for such services
or items delivered as are then in effect. The Service Fee shall be paid without
abatement, deduction, counterclaim or setoff immediately upon receipt of
WORLDCOM invoice.
Customer shall also pay to WORLDCOM the amount set forth in each WORLDCOM
Collocate Schedule as Customer's share of the cost of the improvements to the
Space required to be made by WORLDCOM in order to permit WORLDCOM to provide the
Customer Services (the "BUILD-OUT FEE"). The Build-out Fee shall be payable to
WORLDCOM as compensation for such costs upon Customer's execution of the
WORLDCOM Collocate Schedule relevant to the Space concerned. Should this
Agreement or any individual WORLDCOM Collocate Schedule terminate or be
suspended by WORLDCOM due to Customer default prior to Customer paying the
balance of any Build-out Fee, then, and in that event, WORLDCOM shall be
entitled to accelerate and immediately collect the balance of any such Build-out
Fee from Customer. Failure to fully pay the Build-out Fee as agreed or upon any
acceleration, will be deemed a material default hereunder.
6. LANDLORD SERVICES. It is understood and agreed that WORLDCOM shall not
directly render any of the services provided by the landlord of non-owned
WORLDCOM facilities (the "Landlord") in Premises in which the Space may be
located to Customer under an appertaining Lease, but, rather, all services
provided by the Landlord to WORLDCOM in such facilities shall be made available
on a limited license basis to Customer the same as are made available to
WORLDCOM.
WORLDCOM shall use reasonable efforts to keep the Space free from
interruption of service; however, WORLDCOM does not guarantee that the use of
the Space shall be free from interruption for any reason. WORLDCOM warrants
only that the Space shall conform to the standard specifications set forth in an
Exhibit to the WORLDCOM Collocate Schedule(s). Notwithstanding the foregoing nor
anything contained in this Agreement to the contrary, WORLDCOM shall not be
liable for any failure of the Space to be fit for the purpose to which Customer
intends to put the Space after buildout and Customer acceptance of the Space;
which acceptance shall be evidenced by Customer occupancy. Occupancy shall be
considered proof of full, complete and proper performance by WORLDCOM concerning
the Space.
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Collocate No. ___________________________
Collocate Schedule No. ___________________________
Amendment No. ___________________________
CRF No. ___________________________
Credit Approval No. ___________________________
7. INSURANCE. Customer shall obtain, pay for and unceasingly maintain insurance
coverages and in amounts of coverage not less than those set forth below and
shall provide WORLDCOM timely certificates as issued by insurance companies
satisfactory to WORLDCOM to evidence such existing coverages. Such certificates
shall provide that there shall be no termination, non-renewal, or modification
of such coverage without thirty (30) days' prior written notice to WORLDCOM. In
the event of any failure by Customer to comply with the provisions of this
paragraph, WORLDCOM may, at its option, on notice to Customer, suspend this
Agreement until Customer is in full compliance with this Paragraph 7, or
terminate this Agreement. The following types and minimum coverages shall apply:
a. Worker's Compensation insurance complying with the law of the state or
states of Customer's operation, whether or not such coverage is required by law,
and Employer's Liability insurance with limits of $500,000 per each employee and
$500,000 disease policy limit. If work is to be performed in Nevada, North
Dakota, Ohio, Washington, Wyoming or West Virginia, Customer shall purchase
Workers' Compensation in the State Fund established in these respective states.
Stop Gap coverage, and, if available, Employers Overhead coverage, shall also be
purchased.
b. Commercial General Liability insurance with a combined single limit for
bodily injury and property damage of $1,000,000 per each occurrence and General
and Products Liability aggregates of not less than $2,000,000 covering all
obligations or operations of Customer is required. The policy shall include no
modifications that reduce the standard coverages provided under a Commercial
General Liability Insurance policy form.
c. Business Automobile Liability insurance with a combined single limit for
bodily injury and property damage of $1,000,000 per each occurrence, with such
insurance to include coverage for all owned, non-owned and hired vehicles.
d. Excess or Umbrella Liability coverage with a combined single limit for
bodily injury and property damage of not less than $1,000,000 per each
occurrence shall be in force with an annual aggregate of $1,000,000 to apply in
excess of all other insurance coverages required above.
In the event coverage is denied or reimbursement of a properly presented
claim is disputed by the carrier for insurance provided in (a) through (d)
above, Customer shall, upon written request, provide WORLDCOM with a certified
copy of the involved insurance policy or policies within ten (10) business days
of receipt of such request.
Customer waives its right and underwriter's right of subrogation against
WORLDCOM, and WORLDCOM's officers, directors, agents, employees, and
shareholders, provided that such waiver prior to loss does not void or alter
coverage.
Neither the insurance required herein nor the amount and type of insurance
maintained by Customer, shall limit or affect the extent of Customer's liability
to indemnify WORLDCOM hereunder for injury, death, loss or damage.
WORLDCOM, and its affiliates, shall not insure or be responsible for any
loss or damage to property of any kind owned, licensed or leased by Customer or
its employees, servants and agents. Any policy of insurance covering the
property owned, licensed or leased by Customer against loss by physical damage
or otherwise shall provide that the underwriters have given their permission to
waive their rights of subrogation against WORLDCOM, its affiliates and their
directors, officers, employees, subsidiaries, including the directors, officers
and employees thereof.
The named insured certificate holder
must be shown as: WORLDCOM NETWORK SERVICES, INC. (R)
Attn: Contract Administration
0000 X. Xxxxxxxx Xxx., X.X.1.1-000X
Xxxxx,XX 00000-1808
If Customer utilizes contractors(s) per this Agreement, then Customer shall
require all such contractors(s) to comply with these insurance requirements and
to supply to WORLDCOM certificates of insurance before any work by such
contractor or any of its subcontractors commences.
If additional insurance coverages are required by the Landlord pursuant to
the Lease relevant to the Space in question, Customer hereby agrees to comply
with the Landlord's requirements under the Lease, including as the Lease may be
modified from time to time provided, however, Customer will be notified in
writing at least 60 days in advance of such modifications.
8. IMPROVEMENTS TO SPACE AND PREMISES; QUIET ENJOYMENT. In the event
Customer desires to make improvements to the Space and such Improvements are
deemed to be material and substantial as determined by WORLDCOM ("Material
Improvements"), Customer shall submit all plans and specifications for such
work to be performed in the Space to WORLDCOM for WORLDCOM's prior written
approval, which approval shall not be unreasonably withheld or delayed.
WORLDCOM shall exclusively submit all such plans and specifications for
Material Improvements to the Landlord if applicable for the Landlord's prior
written approval where appropriate. No construction for Material Improvements
may commence until both of the foregoing written consents are obtained.
Customer covenants and agrees that its use of the Space shall not interfere
with WORLDCOM's use of its Premises or any other tenants' use of their premises
in the building in which the Premises are located. WORLDCOM covenants and
agrees with Customer that WORLDCOM's use of the Premises and/or the use of the
Premises by WORLDCOM's other customers shall not unreasonably interfere with
Customer's use of the Space.
Customer shall not employ any contractor to perform Material Improvements
unless previously approved in writing by WORLDCOM (which approval shall not be
unreasonably withheld), and, further, where appropriate, unless approved in
writing by the Landlord. Customer and each contractor and subcontractor
participating in performing Material Improvements shall warrant that such work
shall be kept free from all mechanic's and/or materialman's liens and free from
any and all defects in workmanship and materials for the period of time which
customarily applies in good contracting practice, but in no event for less than
one (1) year after the acceptance of the work by Customer and WORLDCOM. The
aforesaid warranties of each such contractor and subcontractor and Customer
shall include the obligation to repair or replace in a thoroughly first-class
and workmanlike manner all defects in workmanship and materials without
additional charge. All the Material Improvements shall be covered in the
contracts and subcontracts for performance of Customer's work and shall be
written so that they shall inure to the benefit of WORLDCOM and
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Collocate Contract No. __________________________
Collocate Schedule No. __________________________
Amendment No. __________________________
CRF No. __________________________
Credit Approval No. __________________________
Customer as their respective interests may appear. Such warranties shall be so
written that they can be directly enforced by either Customer or WORLDCOM, and
Customer shall give to WORLDCOM any assignment, permission or other assurance
requested to effectuate the same.
It shall be Customer's responsibility to cause each of Customer's
contractors and subcontractors to maintain continuous protection of the premises
adjacent to the Space in such manner as to prevent any damage to adjacent
property by reason of the performance of such work.
All work to be performed under this Paragraph 8 shall be coordinated with
all work being performed by WORLDCOM and other tenants of the building in which
the Premises are located. The contractor or subcontractor shall comply with all
procedures and regulations prescribed by WORLDCOM and the Landlord of the
Premises for integration of Customer's work with the work to be performed in
connection with the construction of the building, and all construction within
the building which comprises or contains the Premises.
All fixtures, alterations, additions, repairs, improvements and/or
appurtenances attached to or built into, on or about the Space prior to or
during the Term of the limited license relevant thereto, whether by WORLDCOM at
its expense or at the expense of Customer, or by Customer at its expense or by
previous occupants of the Space, shall be and remain part of the Space and shall
not be removed by Customer at the end of the Term of the limited license
relevant to the Space. Upon the termination or expiration of the Term relevant
to the Space, WORLDCOM may allow Customer thirty (30) days after the date of
such termination or expiration, at Customer's sole cost and expense, to remove
Customer's trade fixtures (including, but not limited to, rectifiers/chargers,
batteries, AC power conditioning equipment, telecommunication switching
equipment, channel banks, etc.) installed by Customer provided that the Space is
restored by Customer to its original condition before the installation of such
items, reasonable wear and tear excepted, and that all such work (including
restoration) is performed in accordance with the other provisions of this
Agreement. If Customer shall fail to complete such removal and restoration where
permitted by WORLDCOM within the aforesaid thirty (30) day time period, all such
trade fixtures remaining within the Space or at the Premises may, at WORLDCOM'S
option, without notice, be deemed abandoned whereupon such items and equipment
will become the sole property of WORLDCOM, and WORLDCOM may dispose of such
items, equipment and trade fixtures as it deems appropriate without liability to
Customer at any other firm, person or entity. Customer shall continue to pay the
Basic Fee and other Fee(s) specified in the relevant WORLDCOM Collocate Schedule
until the earlier of: (i) Customer's removal of such trade fixtures and
completion of such restoration or (ii) WORLDCOM'S taking possession of such
trade fixtures as set forth above; but, in any event, not later than forty (40)
days after the termination date. All work affecting the Space shall be in
compliance with all laws, ordinances, rules, regulations, orders and directives
of governmental and quasi-governmental bodies and authorities having
jurisdiction over the Premises and the Space and Customer shall obtain and keep
in continuous effect all licenses, permits and other authorizations required
with respect to the business conducted by Customer or Customer's contractors
within the Space.
9. EMERGENCY PHONE NUMBERS. Customer shall provide WORLDCOM with means of access
to the Space and except in the case of an emergency, upon not less than
twenty-four (24) hours' notice, WORLDCOM shall have the unrestricted right to
enter the Space for the purpose of inspecting the same. Customer shall, upon
execution of this Agreement, provide WORLDCOM with a twenty-four (24) hour
maintenance telephone number for trouble notification and resolution by
inserting said telephone number(s) in the WORLDCOM Collocate Schedule(s). In
addition, Customer shall place such number at a visible location outside but
near the Space.
10. SOLE USE OF SPACE BY CUSTOMER. Customer acknowledges that it has been
granted only a limited license to occupy the Space; that it has not been granted
any real property interest in the Space; that neither this Agreement nor any
interest created herein shall be assigned, mortgaged, subleased, encumbered or
otherwise transferred by Customer and that neither the Space nor any part
thereof shall be encumbered in any manner by reason of any act or omission on
the part of Customer, or used or occupied, or permitted to be used or occupied,
by anyone other than Customer in conformity with this Agreement. Any attempt to
allow the use or occupancy of the Space by anyone other than Customer or to
assign, mortgage, sublease or encumber any rights under this Agreement, unless
otherwise previously agreed to in writing by WORLDCOM, shall be void; and in
such event, WORLDCOM shall have the immediate right to terminate this
Agreement as to the affected relevant Space.
11. DEFAULT. If (i) any payment due pursuant to this Agreement shall remain
unpaid for a period of ten (10) days after the same shall become due and
payable, or (ii) Customer fail to perform or fulfill any other covenant or
provision of this Agreement and such failure is not remedied within thirty (30)
days after the receipt of written notice thereof from WORLDCOM; or (iii)
Customer should interconnect with any other party in contravention of this
Agreement, then, and in that event, Customer shall be in default under this
Agreement and any license granted hereunder shall thereupon, at WORLDCOM'S sole
discretion and election and by virtue of this express stipulation, expire and
terminate and be of no further force or effect as to the affected relevant
Space. In the event of default by Xxxxxxxx, Customer agrees to pay any and all
reasonable costs incurred by WORLDCOM in the enforcement of this Agreement,
including reasonable attorney's fees. Any extension of time granted to Customer
by WORLDCOM to cure a default shall be effective only if made in writing.
WORLDCOM'S granting of an extension, failing to act with respect to any
default, or waiving any default shall not constitute a permanent waiver by
WORLDCOM of its rights hereunder with respect to any future act or default by
Customer, or any failure to cure such default within any extension period
granted by WORLDCOM.
Customer may be deemed to be in default of this Agreement if Customer has
failed to pay any sums due WORLDCOM under any collocate schedule, under the
following conditions, only: i) the failure to pay any proper fee or charge
hereunder by Customer where such failure continues for forty-five (45) days
after receipt of notice by Customer that WORLDCOM intends to exercise its rights
hereunder to terminate; or ii) the failure to reasonably commence the cure of a
nonmonetary default hereunder which failure continues for a period of forty-five
(45) days after receipt of notice by Customer to the same effect as i), above;
or iii) the failure to complete the cure of a nonmonetary default hereunder
which failure continues for a period of forty-five (45) days after such cure
could reasonably have been completed, and notice to that effect has been
received by Customer wherein WORLDCOM has expressly advised customer in such
notice that WORLDCOM intends to take the action described in i), just above
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CONFIDENTIAL MATERIALS
7
Collocate Contract No. ____________________________
Collocate Schedule No. ____________________________
Amendment No. ____________________________
CRF No. ____________________________
Credit Approval No. ____________________________
12. NOTICES. All notices, consents, and other communications required or
permitted hereunder shall be in writing and shall be mailed or delivered as set
forth in this Paragraph 12 (or to such additional or other persons, at such
other address or addresses as any be designated by notice of the appropriate
party.) Mailed communications shall be sent by United States certified or
registered mail, postage prepaid or by a generally recognized overnight delivery
system such as Federal Express. Such communications shall be deemed effective
upon delivery to WORLDCOM or Customer, as the case may be, at their respective
business addresses shown at the end of this agreement.
13. LIMITATION OF LIABILITY AND INDEMNIFICATION.
(a) WORLDCOM shall take reasonable precautions to avoid actual damage to
the Space and/or the Equipment; however, except for actual damage to the Space
and/or the Equipment caused by the gross negligence or willful misconduct of
WORLDCOM, its agents, employees or affiliated companies, WORLDCOM'S liability
for damages incurred by Customer for any other cause whatsoever shall be limited
to the charges due WORLDCOM under this Agreement. As used in this Subparagraph
13(a) the term "actual damages" shall mean no more than the cost to restore the
Space to a state substantially similar to that which existed as of the Billing
Commencement Date and the cost to repair the Equipment to a state of working
order or the replacement value of the Equipment if such damage renders said
Equipment beyond a reasonable state of repair.
(b) WORLDCOM shall not be liable to Customer nor any other person, firm or
entity for any incidental, indirect, special, consequential, punitive or
reliance damages of any nature whatsoever regardless of the foreseeability
thereof (including, but not limited to, any claim from any client, customer,
third party or patron for loss of services, lost profits or lost revenues)
arising under or in connection with this Agreement, or the performance
hereunder, arising from any breach, or partial breach, or potential breach of
the provisions of this Agreement, or arising out of any act or omission by
either WORLDCOM or Customer, their respective employees, servants or agents
whether based on breach of contract, breach of warranty, negligence or any other
theory of liability.
(c) Customer shall indemnify, defend and hold harmless WORLDCOM and its
agents, servants, employees and affiliates from any claims, demands, actions,
damages, charges, expenses, fees, liability, judgments, and costs (including
attorney's fees) arising from: (i) Customer's use or enjoyment of the Space or
Services, or the use by any third party permitted by Customer to visit or
utilize the Space, Services or Premises, unless caused by WORLDCOM'S gross
negligence or willful misconduct; (ii) breach or nonperformance of any covenant
or obligation of Customer contained herein, or (iii) arising out of the
violation of any law or regulation by Customer. Customer's obligation to assume,
protect, defend, indemnify and save WORLDCOM harmless shall extend to protect
WORLDCOM'S officers, directors, agents, employees and any corporate shareholder
of WORLDCOM or its affiliates, and Customer shall continue to indemnify, defend
and hold harmless WORLDCOM for so long as any of the named indemnitees may be
subjected to claims or suits calling for such obligations; provided, however,
Customer shall not be obligated to indemnify, end or hold harmless WORLDCOM and
the named indemnitees from claims, demands, actions, damages, liability,
judgments, expenses and costs arising from or asserted by third parties against
WORLDCOM on account of physical property damage to such third party's property
located upon the Premises (exclusive of the Space) or personal injury to such
third party to the extent such damage is caused by any gross negligence or
willful misconduct of WORLDCOM or its agents or employees.
(d) Customer shall be responsible to pay or repay WORLDCOM for any expense,
fee, or loss suffered or paid by WORLDCOM due to fire, casualty, injury or other
charge made against WORLDCOM as a result of Customer's use, occupancy of or
conduct within the Space. WORLDCOM shall have no liability of any kind
whatsoever to Customer or any person, firm or entity for any act or omission of
WORLDCOM, its agents or employees excepting only as follows: WORLDCOM, at its
own expense shall indemnify Customer and hold Customer harmless with respect to
any and all loss, damage, liability or expense asserted against Customer by a
third party on account of any physical property damage to such third party's
property located upon the Premises (exclusive of the Space) or personal injury
to such third party caused solely by the gross negligence or willful misconduct
of WORLDCOM or its agents or employees arising out of WORLDCOM'S performance of
this Agreement. WORLDCOM'S obligation to indemnify and hold Customer harmless
shall extend to Customer's officers, directors, employees, agents, and any
corporate shareholder of Customer, and shall continue only for so long as any of
the named indemnitees may be subject to claims or suits calling for such
obligations.
14. USE. With respect to each WORLDCOM Collocate Schedule executed by Customer
(whether simultaneously with or after the date of this Agreement), Customer
shall continually maintain per Space not less than (i) $7,000.00 in monthly
recurring interexchange service charges from WORLDCOM, and/or (ii) $21,000.00 in
monthly measured and per call switched service charges from WORLDCOM (the
"Monthly Minimum"), at least a portion of which interexchange service and/or
switched service must originate/terminate in the Space in question. If Customer
requests more than four (4) racks or cabinets with respect to any individual
Space, the Monthly Minimum with respect to the relevant Space will be subject to
adjustment as determined in WORLDCOM'S reasonable judgment, which modified
amount will be set forth in the applicable WOLRDCOM Collocate Schedule(s). If
Customer fails to maintain the Monthly Minimum and relevant increase or
decrease, if any, with respect to any Space. WORLDCOM may, in its reasonable
judgment and upon ninety (90) days' notice to Customer, terminate this Agreement
with respect to the affected relevant Space.
15. EMINENT DOMAIN. In the event of a taking by eminent domain (or a conveyance
by any Landlord of all or any portion of the Premises to an entity having the
power of eminent domain after receipt of actual notice of the threat of such
taking) of all or any portion of the Premises so as to prevent, in WORLDCOM'S
sole determination, the utilization by Customer of the Space in the Premises,
this Agreement shall terminate as of the date of such taking or conveyance with
respect to the Space which is affected by such taking or conveyance and the
Basic Fee and other relevant fee(s) paid or to be paid by Customer shall be
proportionately reduced at WORLDCOM'S discretion. Except as set forth below,
Customer shall have no claim against WORLDCOM for the value of the unexpired
Term of the license affected thereby (or any portion thereof) or any claim or
right to any portion of the amount that might be awarded to the Landlord of the
Premises or to WORLDCOM as a result of any payment for condemnation or
CONFIDENTIAL MATERIALS
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8
Collocate Contract No. ________________________
Collocate Schedule No. ________________________
Amendment No. ________________________
CRF No. ________________________
Credit Approval No. ________________________
damages. Nothing contained in this Agreement shall prohibit Customer from
seeking any relief or remedy against the condemning authority in the event of an
eminent domain proceeding or condemnation which affects the Space
16. DAMAGE TO PREMISES. If the building in which the Premises are located is
damaged by fire or other casualty, WORLDCOM shall give immediate notice to
Customer of such damage. If such damage is the result of Customer's negligence
or use of the Space or Services, Customer shall reimburse WORLDCOM for all cost,
expense, loss or damage resulting from such negligence or use of the Space or
Services. If a Landlord or WOLRDCOM exercises an option to terminate a
particular Lease due to damage or destruction of the Premises, or if WORLDCOM
decides not to rebuild such building or portion thereof in which the Space is
located, this Agreement shall terminate as of the date of such damage or
decision as to the affected Space and the Basic Fee and other relevant Fee(s)
paid by Customer shall be proportionately reduced. If neither the Landlord of
the affected Premises nor WORLDCOM exercises the right to terminate, WORLDCOM
shall repair the particular Space to substantially the same condition it was
prior to the damage. In the event WORLDCOM shall fail to complete the repairs
within a time period considered reasonable under telecommunications industry
standards, Customer shall thereupon have the option to terminate this Agreement
with respect to the affected Space, which option shall be the sole remedy
available to Customer against WORLDCOM under this Agreement relating to such
failure. If the Space or any portion thereof shall be rendered untenantable by
reason of such damage, the Basic Fee and other Fee(s) for such Space shall
proportionately xxxxx, based on the amount of square footage which is rendered
untenantable, for the period from the date of such damage to the date when such
damage shall have been repaired for the portion of the Space rendered
untenantable.
17. FORCE MAJEURE. Notwithstanding any other provision of the Agreement, neither
party shall be deemed in default of this Agreement for delay, failure in
performance, loss or damage due to any of the following force majeure
conditions: fire, stake, explosion, power blackout, earthquake, flood, war,
water, the elements, labor disputes, civil disturbance, government requirement,
civil or military authority, acts of God, inability to secure transportation
facilities, acts or omissions of transportation carriers, or other causes beyond
their reasonable control, whether or not similar to the foregoing. Any party
failing timely to perform its obligation under this Agreement must take all
reasonable steps to remedy its nonperformance or delay in performance with the
least possible delay in order to mitigate the adverse effect of its
nonperformance upon the other party to this Agreement.
18. LIEN ON EQUIPMENT. WORLDCOM shall have no rights to or interest in the
Equipment other than statutory rights, if any, granted a landlord with respect
to the property of a tenant (commercial or residential) other than those set
forth in this Agreement. Except as provided herein, the Equipment shall remain
the sole property of Customer. However, in the event Customer fails to pay
WORLDCOM for amounts due hereunder and is in default of this Agreement, WORLDCOM
shall have a lien upon the Equipment and all other personal property of Customer
which may be located in or upon the Premises. Customer hereby specifically
waives any and all exemption allowed by law with respect to such lien. Such
lien, (subject to the rights of third parties, if any, with security interests
in the Equipment, including, but not necessarily limited to, third party
commercial lenders, equipment lessors and factors, whether or not such security
interests have been perfected), may be enforced by WORLDCOM for Customer's
failure to pay amounts due hereunder by the taking and selling of such Equipment
and/or property, (said sale to be made in a commercially reasonable manner upon
thirty (30) days' written notice to Customer), or such lien may be enforced in
any other lawful manner available at the sole option of WORLDCOM. The lien
provided for herein shall not, before default by Customer, be recordable as a
security interest in the Equipment and shall only arise in the event Customer
fails to pay such charges.
19. CONDUCT IN SPACE AND PREMISES. Customer shall abide by WORLDCOM'S and any
applicable Landlord's rules with regard to Customer's conduct in the Premises.
Such rules include, but are not limited to, a prohibition against smoking in the
Space or the Premises by Customer's employees, agents, representatives,
contractors, subcontractors, invitees or licensees. Further, Customer shall
maintain the Space in a clean and safe condition, including but not limited to
the preclusion of storing hazardous or combustible materials in the Space
20. ASSIGNMENT - CHANGE IN CONTROL. This Agreement shall be binding upon and
inure to the benefit of the parties hereto and their respective successors or
assigns. Except as security for financing or in connection with the enforcement
of any security interests so granted. Customer shall not assign or transfer this
Agreement to any third party which is not an existing affiliate or subsidiary of
Customer as of the date of this Agreement without the prior written consent of
WORLDCOM, which consent shall not be unreasonably withheld or delayed. If
Customer makes such an assignment or transfer without the written consent of
WORLDCOM, WORLDCOM may immediately cancel this Agreement. In the event Customer
sells or transfers substantially all of as assets to another party and WORLDCOM
agrees in writing to assign or transfer this Agreement to such party, Customer
shall require the purchaser, as a condition of such sale, to agree that the
purchaser shall fully assume this Agreement and continue to perform all of the
obligations of Customer under this Agreement.
CONFIDENTIAL MATERIALS
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9
Collocate Contract No. ___________________________
Collocate Schedule No. ___________________________
Amendment No. ___________________________
CRF No. ___________________________
Credit Approval No. ___________________________
21. ENTIRE AGREEMENT AND FUTURE MODIFICATION OF AGREEMENTS. This Agreement,
attached Exhibits and the WORLDCOM Collocate Schedule(s) identified herewith and
made a part hereof along with two certain Letters of Intent between the parties,
all of which together contain the entire agreement of the parties with respect
to the Space delineated in each WORLDCOM Collocate Schedule to the date hereof.
No other prior agreements or understanding pertaining to such Collocate Space
shall be legally effective. This Agreement may only be modified in a writing
duly and validly signed by both parties in interest at the time of modification.
Customer specifically acknowledges that neither WORLDCOM nor any agent or
employee of WORLDCOM has made any representations, warranties or promises except
as expressly set forth in this Agreement and in the WORLDCOM Collocate
Schedule(s) identified herewith.
22. NO WAIVERS. A waiver by either party of any of the covenants or agreements
hereof to be performed by the other party shall not be construed to be a waiver
of any succeeding breaches thereof or of any other covenants or agreements
herein contained to be performed by the other party.
23. SEVERABILITY; LEGAL COMPLIANCE. It is the intention of the parties to comply
with all applicable federal, state and local statutes, orders, regulations and
case law in the performance of this Agreement. To the extent that any provision
fails to comply with any such requirements or is otherwise held to be invalid,
illegal or unenforceable, such provision shall be considered null and void but
the remaining provisions of this Agreement shall be unimpaired, and the invalid,
illegal or unenforceable provision shall be replaced by provisions that are
acceptable to both parties, are valid, legal and enforceable, and come as close
as possible to reflect accurately the intentions of the parties underlying the
invalid, illegal or unenforceable provision or provisions, so long as such
replacement provisions do not have the effect of frustrating the basic business
purposes and expectations of both parties. In such latter event, either party
shall have the right to terminate this Agreement upon written notice to the
other.
24. NATURE OF RELATIONSHIP OF PARTIES. Nothing contained herein shall be deemed
to create a relationship between Customer and WORLDCOM of employer and employee,
master and servant, principal and agent, contractor and subcontractor,
co-venturers, partners or any similar relationship within the meaning of any law
or otherwise. This Agreement shall not constitute either party as the agent for
or principal of the other for any purpose.
25. REPRESENTATIONS AND WARRANTIES. Each party represents and warrants that it
has taken all requisite corporate or partnership action to approve execution,
delivery and performance of this Agreement and that this Agreement constitutes a
legal, valid and binding obligation enforceable against it in accordance with
its terms. Customer further warrants that it is a legally existing, properly
licensed and valid business entity in good standing with all governmental
entities having authority or jurisdiction over Customer or Customer's business.
Customer acknowledges that it has not been induced to enter into this Agreement
by any representation or promise not specifically expressed in this Agreement.
Any modification made hereto shall not be valid and binding unless in writing
and signed by both Parties.
26. GENERAL PROVISIONS.
(a) The Space provided for hereunder is subject to the condition that it
shall not be used for any unlawful purpose.
(b) This Agreement shall be construed under the laws of the State of
California without regard to choice of law principles.
(c) The terms and provisions contained in this Agreement that by their
sense and context are intended to survive the performance thereof by the
parties hereto shall survive the completion of performance and termination
of this Agreement, including, without limitation, the making of any and all
payments due hereunder.
(d) Descriptive headings in this Agreement are for convenience only and
shall not affect the construction of this Agreement.
(e) Words having well known technical or trade meanings shall be so
construed, and all listings of items shall not be taken to be exclusive,
but shall include other items whether similar or dissimilar to those
listed, as the context reasonably requires.
(f) No rule of construction requiring interpretation against the draftsman
hereof shall apply in the interpretation of this Agreement.
(9) Signature below acknowledges Customer's agreement to and acceptance of
the "Standards for Customer Responsibility" set forth in the Collocate
Schedule(s) Exhibit 11.
27. CONFIDENTIALITY.
From time to time during the Term, the parties may deem it necessary to provide
each other with confidential information ("Confidential Information")
Confidential Information is defined as information marked appropriately and
transferred pursuant to this Agreement and shall include, without limitation,
formulas, processes, designs, photographs, plans, samples, equipment, equipment
performance reports, subscriber lists, pricing information, studies, findings,
inventions, ideas, drawings, schematics, sketches, specifications, parts lists,
technical data, databases, software in any form, flowcharts, algorithms and
other business and technical information. Excluded from Confidential Information
is that information for which the recipient can demonstrate: (a) that the
recipient had the information in its possession without confidential limitation
prior to disclosure, or (b) that the recipient independently developed the
information, or (c) that the information is known or becomes known to the
general public without breach of this Agreement, or (d) that the recipient
received the information from a third party rightfully and without confidential
limitation.
CONFIDENTIAL MATERIAL
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10
Collocate Contract No. ___________________________
Collocate Schedule No. ___________________________
Amendment No. ___________________________
CRF No. ___________________________
Credit Approval No. ___________________________
The parties agree that the receiving party of Confidential Information shall:
(i) Maintain the confidentiality of such Confidential Information and
not disclose it to any third party, except as authorized by the
original disclosing party. Such Confidential Information includes
both oral and visual Confidential Information;
(ii) Restrict disclosure of Confidential Information to employees who
have a "need to know" such information in connection with their
employment. Such Confidential Information shall be handled with
the same degree of care which the receding party applies to its
own Confidential Information;
(iii) Take precautions necessary and appropriate to guard the
confidentiality of Confidential Information, including informing
as employees who handle such confidential Information that it is
confidential and not to be disclosed to others, but in no event,
less than reasonable care;
(iv) Use such Confidential Information only as required in performance
of this Agreement;
(v) Acknowledge that the Confidential Information is and shall at all
times remain the property of the disclosing party.
No use of any Confidential Information is permitted except as otherwise provided
herein or as required by law, and no grant under any proprietary rights is
hereby given or intended, including any license, implied or otherwise.
IN WITNESS WHEREOF, the parties have caused this Agreement to be executed as of
the day and year first above written.
WORLDCOM NETWORK SERVICES, INC.(R) CUSTOMER: TELEHUB NETWORK SERVICES
CORPORATION
BY: /s/ Xxxxxxx X. Xxxxx /s/ Xxxxxxx X. Xxxxxxxxx
---------------------- ---------------------------
(Signature) (Signature)
XXXXXXX X. XXXXX XXXXXXX X. XXXXXXXXX
-------------------------- ---------------------------
(Print Name) (Print Name)
Director, Custom Managed Solutions Group President
---------------------------------------- ---------------------------
(Title) (Title)
4-3
----------------------- , 1998 -------------------- , 199_
(Date Approved) (Date Signed)
Business Address: Customer Business Address:
WORLDCOM NETWORK SERVICES, INC.(R) TeleHub Network Services Corporation
Mail Drop 1.1-205A --------------------------------------
6929 X. Xxxxxxxx Xxx. 0000 Xxx-Xxxxx Xxxx., #000
Xxxxx, Xxxxxxxx 00000-1808 --------------------------------------
Attn: Collocate Analyst Gurnee, IL 60031
Email: xxxxxxx.xxxx@xxxx.xxx --------------------------------------
TEL: (000) 000-0000 Attn: Vice President, Network Services
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TEL: 000-000-0000
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CONFIDENTIAL MATERIALS
