INDEFEASIBLE RIGHT OF USE AGREEMENT
THIS INDEFEASIBLE RIGHT OF USE AGREEMENT (this "Agreement") is made and
entered into as of DECEMBER ___, 1999 ("Effective Date"), by and between XXXXXX
COM, INC., ("Seller") a California corporation and a wholly-owned subsidiary of
STAR Telecommunications, Inc., a Delaware corporation, and XXXX.XXX, INC. and
URJET BACKBONE NETWORK, a Nevada corporation ("Buyer"), with offices at 0000
Xxxxxxxxx, Xxxxxxx Xxxxx, Xxxxxxxxxx 00000.
RECITALS
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WHEREAS, Seller desires to grant to Buyer, and Buyer desires to accept,
the grant from STAR of an IRU in the Capacity comprising a portion of Seller's
Network (as such terms are defined herein), upon the terms and subject to the
conditions set forth in this Agreement.
NOW, THEREFORE, in consideration of the mutual promises set forth
below, and other good and valuable consideration, the receipt and sufficiency of
which are hereby acknowledged, the parties hereby agree as follows:
1. DEFINITIONS
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The following terms shall have the stated definitions in this
Agreement.
"AFFILIATE" means (i) any person directly or indirectly controlling,
controlled by or under common control with another person, (ii) any officer,
director, partner or member of the immediate family of such controlling person,
and (iii) if such other person is an officer, director, general partner or
manager, any corporation, partnership or limited liability company for which
that person acts in that capacity. The term "control" (including the terms
"controlled by" and "under common control with") means the possession, direct or
indirect, of the power to direct or cause the direction of the management and
policies of a person, whether through the ownership of voting securities, by
contract or otherwise.
"CAPACITY" means the dedicated digital transmission capability of a
given portion of the STAR Network described in Exhibit A attached hereto.
"DS-0" means a quantity of the Capacity capable of a data rate of
approximately 64 kbs.
"DS-O V&H MILES" means the quantity of DS-O times the V&H Miles for
each STAR Network Segment, including, without limitation, the V&H Miles for the
city pairs set forth in Exhibit A hereto.
"DS-3" means a quantity of the Capacity capable of a data rate of
approximately 44.6 Mbs.
"GOVERNMENTAL AGENCY" means a local federal, state, municipal or local
governmental or regulatory agency, department, commission, court, bureau or
other authority.
"INDEFEASIBLE RIGHT OF USE" or "IRU" means an exclusive, indefeasible
right of use in optical and/or electrical transmission capacity granted by
Seller to Buyer in the Capacity pursuant to Section 2.1.
"LAWS" mean all federal, state, municipal and local statutes, laws,
codes, regulations rules, ordinances and all orders, guidelines and requirements
of all Governmental Agencies.
"OC-3" means a quantity of the Capacity capable of a data rate of
approximately 155.520 Mbs.
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"OC-12" means a quantity of the Capacity capable of a data rate of
approximately 622.080 Mbs.
"OC-48" means a quantity of the Capacity capable of a data rate of
approximately 2488.32 Mbs.
"OUTAGE" has the meaning set forth in Section 6.3.1.
"OUTAGE CREDIT" has the meaning set forth in Section 6.3.1.
"POI" means the optical and/or electrical connection between Seller and
Buyer at the North America DSX standard cross-connect panels located in Seller's
POPs.
"POP" means a physical location where a long distance carrier
terminates lines before connecting to a local exchange carrier, another carrier
or directly to a customer.
"SELLER" means Xxxxxx Com, Inc., a Delaware corporation.
"STAR NETWORK" means the fiber optic network operated by STAR.
"STAR NETWORK SEGMENT" means the portions of the Seller Network between
the POPs at which the Capacity provided hereunder is made accessible to
Customer.
"TERM" has the meaning set forth in Section 4.
"V&H MILES" is a measurement of the length in miles between the
termination points of a Seller Network Segment using airline miles and
determined based on the vertical and horizontal geographic coordinates of the
locations of the termination points.
2. GRANT OF IRU IN STAR NETWORK
----------------------------
2.1 IRU GRANT. Seller hereby grants to Buyer an IRU in the Capacity for
the purposes described herein, for the Term, upon the terms and subject to the
conditions set forth in this Agreement.
2.2 INTERCONNECTION. The Capacity shall be delivered to Buyer at the
POI set forth in the POP described in Exhibit A. Buyer, at Buyer's sole cost and
expense, shall obtain and provide all equipment and facilities to interconnect
with the Capacity at the POI described in Exhibit A, including, without
limitation, all transiting and local distribution equipment and facilities, and
Seller shall have no obligation or liability with respect thereto.
2.3 MASTER PROVIDER AGREEMENT. Buyer acknowledges and agrees that Buyer
shall not have any rights of Seller under the master provider agreement,
including, without limitation, any rights to (i) purchase any additional
capacity, or (ii) any discounts, credits or other monetary compensation to which
Seller may be entitled under the master provider agreement.
3. IRU FEE
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3.1 IRU FEE. In consideration of the grant by Seller to Buyer of the
IRU in the Capacity pursuant to Section 2.1, Buyer shall pay to Seller the IRU
fee described in Exhibit A attached hereto ("IRU Fee"). The IRU Fee shall be
payable in accordance with the Finance Agreement of even date herewith (the
"Finance Agreement"), which shall be executed and delivered by the parties
concurrently herewith.
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3.2 PAYMENT OBLIGATION. Notwithstanding any other provisions of this
Agreement or the Finance Agreement, Buyer's obligations to pay to Seller the IRU
Fee shall not be subject to any reduction, set-off or adjustment by Buyer,
except as expressly provided in Section 6.3 of this Agreement with respect to
Outage Credits. Without limiting the generality of the foregoing, in no event
shall any malfunction, non-operation or interruption of the Capacity relieve or
otherwise affect any obligations of Buyer to pay the IRU Fee, except as
expressly provided in Section 6.3 of this Agreement with respect to Outage
Credits.
4. TERM
----
The term of this Agreement (the "Term") shall begin on the Effective
Date and shall continue until the date of the expiration of the term of the IRU
as established in Exhibit A.
5. OPERATIONS
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5.1 CONTROL. Buyer acknowledges and agrees that the grant to Buyer of
the IRU in the Capacity under this Agreement shall not provide Buyer with any
right or authority to control or modify any network or service configuration or
designs, routing configurations, regrooming, rearrangement or consolidation of
channels or circuits or any related functions with regard to the Seller Network.
5.2 SUBSTITUTION. At any time during the term of this Agreement, upon
not less than ninety (90) days written notice to Buyer and with Buyer's
permission which shall not be unreasonably withheld, Seller may substitute for
the Capacity, an equal amount of dedicated digital transmission capability of a
given portion of the Seller Network along an alternative route; provided that in
any such event, (i) such substitution shall be without unreasonable interruption
of service and use, and (ii) Seller shall be responsible for all disconnect and
reconnect fees, costs and expenses.
6. MAINTENANCE AND RESTORATION OF STAR CAPACITY
--------------------------------------------
6.1 STANDARDS. Seller shall provide or cause to be provided maintenance
for the Capacity using its standard maintenance procedures. Buyer acknowledges,
agrees and understands that such maintenance does not ensure the continuous
operation of the Capacity.
6.2 COSTS. All maintenance charges for the Capacity during the Term are
included in the IRU Fee.
6.3 OUTAGE CREDITS.
6.3.1 OUTAGE CREDIT. Buyer acknowledges the possibility of an
unscheduled, continuous and/or interrupted period of time when all or any
portion of the Capacity is "unavailable" (hereafter an "Outage"). In the event
of an Outage, Buyer, as Buyer's sole remedy with respect thereto, shall be
entitled to a pro rata credit (the "Outage Credit").
6.3.2 SCHEDULED OUTAGES. Seller shall give written notice to Buyer
of any scheduled outage as early as is practicable, and a scheduled outage shall
under no circumstances be viewed as an Outage hereunder.
6.3.3 REPORTS. Buyer shall notify Seller to report an Outage by
using the contact numbers on the "Escalation and Contact List" attached hereto
as Exhibit B.
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7. USE OF CAPACITY
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7.1 COMPLIANCE WITH LAWS. Buyer warrants, covenants and agrees that its
use of the IRU and the Capacity shall at all times comply with all applicable
Laws.
7.2 USE OF CAPACITY. Buyer may use the Capacity subject to this
Agreement for any lawful purpose. Buyer agrees and acknowledges that this
Agreement grants no right to use any element of the Seller Network, other than
the IRU in the Capacity granted under this Agreement. Buyer shall keep the
Seller Network, including, without limitation, the Capacity, free and clear of
any and all liens, rights and claims of third parties attributable to Buyer that
adversely affect or impair Seller's rights to or exclusive use of the Seller
Network.
7.3 BUYER OPERATIONS. Buyer shall be responsible for its own
configuration and use of the Capacity; including, without limitation, the
provision of all interconnection facilities, network equipment, testing
equipment and procedures, maintenance, and other facilities or actions necessary
to utilize the Capacity. Buyer shall conduct all such operations and use of the
Capacity in manner which does not interfere with the operations of the STAR
Network or the use thereof by STAR or any other customer of Seller. Buyer shall
comply at all times with all of STAR's standard operating and interconnection
policies, procedures, standards and requirements. When common interconnect
conduit and cabling exist, Seller and Buyer agree to jointly maintain and
operate the facility.
8. BUYER REPRESENTATIONS AND WARRANTIES
------------------------------------
Buyer represents and warrants that:
8.1 Buyer is a duly organized entity, validly existing and in good
standing under the laws of the state of its incorporation or organization.
8.2 This Agreement constitutes the legally valid and binding
obligations of Buyer, enforceable against Buyer in accordance with its terms,
except as such enforceability may be limited by bankruptcy, insolvency,
reorganization, moratorium and other similar Laws and equitable principles
relating to or limiting creditors rights generally. The execution, delivery and
performance of this Agreement by Buyer and the consummation of the transactions
contemplated hereby will not violate, or constitute a breach or default (whether
upon lapse of time and/or the occurrence of any act or event or otherwise)
under, any of the charter documents or any other organizational documents of
Buyer or any agreement, contract, instrument, mortgage, lien or other document
of the Buyer, or violate any Law. The execution and delivery of this Agreement
and the performance by Buyer of its obligations under this Agreement do not
require the consent or approval of any Governmental Agency or third party.
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9. INDEMNIFICATION
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9.1 SELLER'S OBLIGATIONS. Subject to the provisions of Section 10,
Seller hereby releases and agrees to indemnify, defend, protect and hold
harmless Buyer, its employees, officers, directors, agents, shareholders and
affiliates, from and against, and assumes liability for the following:
9.1.1 Any injury, loss or damage to any person, tangible property
or facilities of any person or entity (including reasonable attorneys' fees and
costs) to the extent arising out of or resulting from the acts or omissions,
negligent or otherwise, of Seller, its officers, employees, servants,
affiliates, agents, contractors, licensees, invitees or vendors arising out of
or in connection with a default by Seller in the performance of, or failure to
comply with, its obligations under this Agreement.
9.1.2 Any claims, liabilities or damages arising out of any
violation by Seller of any regulation, rule, statute or court order of any
Governmental Agency, in connection with the performance of its obligations under
this Agreement.
9.1.3 Any claims, liabilities or damages arising out of any
interference with or infringement of the rights of any third party as a result
of Buyer's use of the IRU in the Capacity in accordance with the provisions of
this Agreement.
9.2 BUYER'S OBLIGATIONS. Subject to the provisions of Section 10, Buyer
hereby releases and agrees to indemnify, defend, protect and hold harmless
Seller, its employees, officers, directors, agents, shareholders and affiliates,
from and against, and assumes liability for the following:
9.2.1 Any injury, loss or damage to any person, tangible property
or facilities of any person or entity (including reasonable attorneys' fees and
costs) to the extent arising out of or resulting from the acts or omissions,
negligent or otherwise, of Buyer, its officers, employees, servants, affiliates,
agents, contractors, licensees, invitees, vendors, customers or end users
arising out of or in connection with a default by Buyer in the performance of,
or failure to comply with, any of its obligations under this Agreement,
including, without limitation.
9.2.2 Any claims, liabilities or damages arising out of any
violation of any regulation, rule, statute or court order of any Governmental
Agency, arising out of the use of the IRU in the Capacity by Buyer, its
officers, employees, servants, affiliates, agents, contractors, licensees,
invitees, vendors, customers or end users.
9.2.3 Any claims, liabilities or damages arising out of any
interference with or infringement of the rights of any third party as a result
of the use not in accordance with the provisions of this Agreement or any misuse
or abuse of the IRU or the Capacity by Buyer, its officers, employees, servants,
affiliates, agents, contractors, licensees, invitees, vendors, customers or end
users.
9.3 SURVIVAL. The obligations of the parties under this Section 9 shall
survive the expiration or termination of this Agreement.
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10. LIMITATION OF LIABILITY; DISCLAIMER OF WARRANTIES
-------------------------------------------------
10.1 AS IS. Buyer expressly acknowledges and agrees that Seller's
rights with respect to the Capacity are transferred to Buyer on an "As Is" basis
and that Seller makes no representation, agreement, statement, warranty,
guarantee or promise regarding the Capacity or the IRU in the Capacity granted
to Buyer under this Agreement.
10.2 EXCLUSIVE. NEITHER STAR NOR ANY OF ITS AFFILIATES MAKES ANY
REPRESENTATION OR WARRANTY WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, AS
TO THE IRU IN THE CAPACITY GRANTED TO BUYER UNDER THIS AGREEMENT, INCLUDING,
WITHOUT LIMITATION, ANY REPRESENTATION OR WARRANTY REGARDING THE DESCRIPTION,
QUALITY, MERCHANTABILITY, COMPLETENESS OR FITNESS FOR ANY PURPOSE OF THE IRU IN
THE CAPACITY GRANTED HEREUNDER OR AS TO ANY OTHER MATTER, ALL OF WHICH
REPRESENTATIONS AND WARRANTIES ARE HEREBY EXCLUDED AND DISCLAIMED. WITHOUT
LIMITING THE GENERALITY OF THE FOREGOING, STAR HEREBY SPECIFICALLY DISCLAIMS ANY
LIABILITY TO BUYER FOR INTERRUPTIONS AFFECTING THE CAPACITY WHICH ARE
ATTRIBUTABLE TO BUYER'S INTERCONNECTION FACILITIES OR TO BUYER'S EQUIPMENT
FAILURES, OR TO BUYER'S BREACH OF THIS AGREEMENT.
10.3 LIMITATIONS. In no event shall Seller or any of its Affiliates be
liable to Buyer or any of its Affiliates or employees or to any third party for:
(a) any loss of profit or revenue, or for any indirect, consequential,
incidental, or similar or additional damages, whether incurred or suffered as a
result of unavailability of facilities or Capacity, performance,
non-performance, termination, breach, or other action or inaction under this
Agreement, or for any other reason, even if Buyer advises Seller of the
possibility of such loss or damage; or (b) for any outage or incorrect or
defective transmissions, or any direct or indirect consequences thereof. In no
event shall Seller's liability for all damages exceed the amount that Buyer has
paid to Seller pursuant to this Agreement.
10.4 CLAIMS AGAINST THIRD PARTIES. Nothing contained herein shall
operate as a limitation on the right of either party hereto to bring an action
for damages against any third party, including any indirect, special or
consequential damages, based on any acts or omissions of such third party as
such acts or omissions may affect the construction, operation or use of the
Capacity or the Seller Network.
11. INSURANCE
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At all times during the term of this Agreement, Buyer shall obtain and
maintain, at its expense, such insurance coverages in such amounts and upon such
terms as are acceptable to Seller, in its sole and absolute discretion, insuring
against damages to property and injuries to persons arising out of the use of
the IRU in the Capacity pursuant to this Agreement and the performance by Buyer
of its obligations under this Agreement, including, without limitation,
contractual liability coverage for Buyer's obligations under this Agreement.
Seller shall have the right at any time and from time to time to require Buyer
to change such coverages and amounts by delivering to Buyer written notice
thereof. Upon Seller's demand, Buyer shall deliver to Seller the policies or
certificates evidencing said coverages.
12. OWNERSHIP
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Nothing herein, including, without limitation, the grant of the IRU in
the Capacity, provides Buyer with any ownership or other possessory interests in
any real property, conduit, fiber, or equipment in or on the Seller Network or
along the route of the Seller Network.
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13. AUDITS
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The parties agree that they will use reasonable efforts to cooperate
with each other and coordinate their mutual efforts concerning audits, or other
such inquiries, filings, reports, etc., as may relate solely to the activities
or transactions arising from or under this Agreement, which may be required or
initiated from or by any duly authorized governmental tax authority.
14. CONFIDENTIALITY
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14.1 GENERAL. Seller and Buyer hereby agree that if either party
provides confidential or proprietary information to the other party
("Proprietary Information"), such Proprietary Information shall be held in
confidence, and the receiving party shall afford such Proprietary Information
the same care and protection as it affords generally to its own confidential and
proprietary information (which in any case shall be not less than reasonable
care) in order to avoid disclosure to or unauthorized use by any third party.
This Agreement, including all of the terms, conditions and provisions hereof,
constitutes Proprietary Information, and all information disclosed by either
party to the other in connection with or pursuant to this Agreement shall be
deemed to be Proprietary Information, provided that written information is
clearly marked in a conspicuous place as confidential or proprietary, and verbal
information is indicated as being confidential or proprietary when given or
promptly confirmed in writing as such thereafter. All Proprietary Information,
unless otherwise specified in writing, shall remain the property of the
disclosing party, shall be used by the receiving party only for the intended
purpose, and such written Proprietary Information, including all copies thereof,
shall be returned to the disclosing party or destroyed after the receiving
party's need for it has expired or upon the request of the disclosing party.
Proprietary Information shall not be reproduced except to the extent necessary
to accomplish the purposes and intent of this Agreement, or as otherwise may be
permitted in writing by the disclosing party.
14.2 EXCEPTIONS. The foregoing provisions of Section 14.1 shall not
apply to any Proprietary Information which (i) becomes publicly available other
than through the recipient; (ii) is required to be disclosed by a governmental
or judicial law, order, rule or regulation; (iii) is independently developed by
the disclosing party; or (iv) becomes available to the disclosing party without
restriction from a third party. If any Proprietary Information is required to be
disclosed pursuant to the foregoing clause (ii), the party required to make such
disclosure shall promptly inform the other party of the requirements of such
disclosure.
14.3 PERMITTED DISCLOSURES. Notwithstanding Sections 14.1 and 14.2,
either party may disclose Proprietary Information to its employees, agents, and
legal, financial, and accounting advisors and providers (including its lenders
and other financiers) to the extent necessary or appropriate in connection with
the negotiation and/or performance of this Agreement or its obtaining of
financing, provided that each such party is notified of the confidential and
proprietary nature of such Proprietary Information and is subject to or agrees
to be bound by similar restrictions on its use and disclosure.
14.4 SURVIVAL. The provisions of this Section 14 shall survive
expiration or termination of this Agreement.
15. PUBLICITY
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The parties shall cooperate in developing the content and timing of all
press releases and all other publicity related to the subject matter of this
Agreement.
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16. DEFAULT
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16.1 The following shall constitute Events of Default under this
Agreement:
16.1.1 DEFAULT. Any misrepresentation or breach of any obligations
under this Agreement by a party if said misrepresentation or breach continues
for thirty (30) days after the non-defaulting party shall have delivered to the
defaulting party written notice of any other breach hereunder; provided,
however, that where any such misrepresentation or breach cannot reasonably be
cured within such thirty (30) day cure period, if the defaulting party shall
proceed promptly to cure the same and prosecute such cure with due diligence,
the time for curing such default shall be extended for such period of time not
to exceed ninety (90) days as may be necessary to complete such cure.
16.1.2 DEFAULT UNDER FINANCE AGREEMENT. Any default by Buyer under
the Finance Agreement, subject to any applicable notice and cure periods
provided for therein.
16.2 REMEDIES. Upon occurrence of event of default by a party, subject
to the applicable notice and cure periods, the non-defaulting party may pursue
any and all other remedies it may have under applicable law or principles of
equity relating to such default, including, without limitation, the termination
of this Agreement and the rights to the IRU and the Capacity provided that
appropriate notice has been given under this Section 16 and subject to the
limitations in Section 10.
17. TERMINATION
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Upon the expiration of the Term set forth in Section 4 or the earlier
termination of this Agreement pursuant to this Section 17, all of Customer's
rights in and to the IRU and the Capacity subject to this Agreement shall revert
to Seller without reimbursement of any fees or other payments previously made
with respect thereto, and from and after such time Buyer shall have no further
rights with respect thereto.
18. FORCE MAJEURE
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The parties' obligations under this Agreement are subject to, and
neither party shall be liable for, delays, failures to perform (except the
payment of money by Buyer), damages, losses or destruction or malfunction of any
equipment or any consequence thereof caused or occasioned by, or due to, acts of
God, fire, explosion, flood, water, the elements, vandalism, cable cut, labor
disputes or shortages, utility curtailments, power failures, civil disturbances,
any law, order, regulation, direction, action or request of the United States
Government or any other Governmental Agency of any one or more of said
governments, any law, order, regulation, direction, action or request, or
overthrow of any foreign nation or government, or subdivision thereof, to which
services are provided pursuant to this Agreement, any national emergency,
insurrection, riot, war, strike, lockout or work stoppage, or other labor
difficulties, shortages of equipment or supplies, unavailability of
transportation, acts or omissions of third parties, or any other cause beyond
the parties' reasonable control.
19. NO PERSONAL LIABILITY
---------------------
Each action or claim against Seller arising under or relating to this
Agreement shall be made only against Seller as a corporation, and any liability
relating thereto shall be enforceable only against the corporate assets of
Seller. Buyer covenants and agrees that it shall not seek to xxxxxx the
corporate veil or otherwise seek to impose any liability relating to, or arising
from, this Agreement against any shareholder, employee, officer or director of
Seller. Each of such persons is an intended beneficiary of the mutual promises
set forth in this Section and shall be entitled to enforce the obligations of
this Section.
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20. GENERAL PROVISIONS
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20.1 NOTICES. Any and all approvals, disapprovals, demands and/or
notices required or permitted to be given hereunder shall be in writing and
shall be personally delivered, telecopied or mailed by certified or registered
mail, return receipt requested, postage prepaid, to the respective parties at
the addresses indicated below:
If to Seller: If to Buyer:
Attention: Contract Manager Attention: Xxxxxxx X. Xxxxxx
STAR Telecommunications, Inc. Urjet Backbone Nework
000 Xxxx Xx Xx Xxxxxx 0000 Xxxxxxxxx
Xxxxx Xxxxxxx, Xxxxxxxxxx 00000 Xxxxxxx Xxxxx, XX 00000
Telephone No.: (000) 000-0000 Telephone No.: (000) 000-0000
Telecopy No.: (000)000-0000 Telecopy No.: (000) 000-0000
Any notices properly addressed, sent by registered or certified mail, return
receipt requested, shall be deemed to have been duly given and received
seventy-two (72) hours after they are deposited in the United States mail,
postage prepaid. Notices shall be deemed delivered and received at the time
delivered if properly addressed and delivered to the addresses set forth in this
Section during normal business hours or personally delivered to the person to
whose attention they are addressed or sent by confirmed telecopy to a party's
regular business telecopier during regular business hours. Notice sent by any
other manner shall be effective upon actual receipt of the addressee. Any party
may change its address for purposes of this Section by giving notice to the
other party as provided in this Section.
20.2 WAIVER. The failure of either party hereto to enforce any of the
provisions of this Agreement, or the waiver thereof in any instance, shall not
be construed as a general waiver or relinquishment on its part of any such
provision, but the same shall nevertheless be and remain in full force and
effect.
20.3 CHOICE OF LAW; CONSENT TO EXCLUSIVE JURISDICTION. This Agreement
shall be in all respects governed by and construed and enforced in accordance
with the Laws of the State of California, including all matters of construction,
validity and performance, without regard to choice of Law rules which would
otherwise require reference to the Laws of some other jurisdiction. Customer
hereby consents to the jurisdiction of the Superior Court and the Municipal
Court of the State of California of the County of Santa Xxxxxxx and agrees that
such courts shall have exclusive jurisdiction over any suit, claim or cause of
action arising out of or related to this Agreement.
20.4 ATTORNEYS' FEES. In the event of any action or proceeding to
enforce or construe any of the provisions of this Agreement, the prevailing
party in any such action or proceeding shall be entitled to reasonable
attorneys' fees and costs.
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20.5 RULES OF CONSTRUCTION.
20.5.1 TECHNICAL OR TRADE TERMS. Unless expressly defined herein,
words having well known technical or trade meanings shall be so construed. All
listing 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.
20.5.2 CUMULATIVE REMEDIES. Except as set forth to the contrary
herein, any right or remedy of Buyer or Seller shall be cumulative and without
prejudice to any other right or remedy, whether contained herein or not.
20.5.3 NEGOTIATIONS. This Agreement has been fully negotiated
between and jointly drafted by the parties.
20.5.4 CONFLICTS. In the event of a conflict between the
provisions of this Agreement and those of any Exhibit, the provisions of this
Agreement shall prevail and such Exhibit shall be corrected accordingly. Each
Exhibit described herein is attached hereto and incorporated herein by this
reference.
20.6 ASSIGNMENT.
20.6.1 SELLER. Seller shall have the right to assign this
Agreement or any of its rights and obligations under this Agreement without
notice or the consent of Buyer.
20.6.2 BUYER. Buyer shall not have the right to assign this
Agreement or any rights or obligations under this Agreement without the prior
written consent of STAR, which consent shall not be unreasonably withheld.
Notwithstanding the foregoing, no said assignment shall relieve Customer of any
of its obligations under this Agreement. The provisions of this Section are
subject to Section 5 of the Finance Agreement.
20.7 RELATIONSHIP OF THE PARTIES. Neither Seller nor Buyer are the
legal representatives or agents of the other party for any purpose whatsoever
and neither party shall have the power or authority to assume or create, in
writing or otherwise, any obligation or responsibility of any kind, express or
implied, to transact business, to make any warranty or otherwise to act in any
manner in the name of or on behalf of the other party. This Agreement shall not
be construed as constituting or creating a partnership between Seller and Buyer
or as creating any other form of legal association between Seller and Buyer
which would impose liability upon one party for the act or the failure to act of
the other party.
20.8 SEVERABILITY. If any term, covenant or condition contained herein
shall, to any extent, be invalid or unenforceable in any respect under the laws
governing this Agreement, the remainder of this Agreement shall not be affected
thereby, and each term, covenant or condition of this Agreement shall be valid
and enforceable to the fullest extent permitted by law.
20.9 SURVIVAL. The provisions of Sections 8, 9, 10, 14, 16, 17, 19 and
20 shall survive the termination of this Agreement.
20.10 ENTIRE AGREEMENT; AMENDMENT. This Agreement constitutes the
entire and final agreement and understanding between the parties with respect to
the subject matter hereof and supersedes all prior and contemporaneous
agreements relating to the subject matter hereof. The Exhibits referred to
herein are integral parts hereof and are hereby made a part of this Agreement.
This Agreement may only be modified or supplemented by an instrument in writing
executed by a duly authorized representative of each party.
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In confirmation of their consent and agreement to the terms and
conditions contained in this IRU Agreement and intending to be legally bound
hereby, the parties have executed this Agreement as of the date first above
written.
SELLER: XXXXXX COM, INC.: BUYER: XXXX.XXX, INC. AND URJET
BACKBONE NETWORK
By: ________________________________ By: ________________________________
Name: ________________________________ Name: ________________________________
Title:________________________________ Title:________________________________
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