EXHIBIT 10.10
[GRAPHIC] BRIDGEPOINT
INTERNATIONAL
BRIDGEPOINT INTERNATIONAL (USA) INC.
CO-LOCATION SERVICE AGREEMENT
TERMS AND CONDITIONS
[GRAPHIC] BRIDGEPOINT
INTERNATIONAL
1) Service
Pursuant to the terms and conditions of this Agreement ("Agreement") and
any present or future co-location service order(s) (collectively referred
to as the "Order") BridgePoint International (USA) Inc. ("BridgePoint")
will provide to the Client executing this Agreement and the Order with
BridgePoint, on a nonexclusive basis, the services set forth herein
("Service"). The Order is hereby incorporated by reference; in the event of
any conflict between the terms of this Agreement and the terms of the
Order, the terms of the Order shall govern.
2) Service Description
The Service consists of housing certain equipment owned by the Client
("Equipment") according to the specifications set forth in the Order
(Service Order Form for installation fees bearing reference number
5E8FF375AB02 attached hereto as Schedule A and Service Order Form for
co-location service fees bearing reference number 1F8FDD8981DF attached
hereto as Schedule B), on monthly fee basis, in service unit(s) in a
co-location area specifically conditioned, built and staffed ("Co-location
Area" as shown on plan attached hereto as Schedule C) for this purpose
located within a BridgePoint centre ("BridgePoint Centre").
3) Charges
3.1 Fees and terms of payment
The Client shall pay any installation or non-recurring fees as set
out in the Order as well as any monthly co-location Service fees
("Service Fees") as totalled in the Order, plus all applicable taxes
("Total Monthly Payment").
Any non-recurring fee is payable within the fifteen (15) days
following the signature of the Order.
Service Fees are payable monthly in advance on the first business
day of the month. The first Total Monthly Payment for the Order is
payable immediately on the first day of the month following the
month in which the "Service Start Date" (as defined in Article 20.1
of the Special Provisions attached hereto as Schedule D) occurs,
with the subsequent Total Monthly Payments continuing every month
thereafter during the term of this Agreement as set forth in the
Order. No Service Fees will be charged to Client from the Service
Start Date until February 28, 2001 inclusively.
Service fees and any other sums that may be due from Client to
BridgePoint under this Agreement are payable in U.S. Dollars.
Service fees shall be payable by bank wire transfer in accordance
with BridgePoint's instructions.
3.2 Interest
Any amount past due by the Client to BridgePoint under this
Agreement shall bear interest from the due date until paid in full
at the rate of 1.0 per month for each month or part thereof, or the
highest rate permitted under the applicable law of the State of New
York, whichever is lower.
2
[GRAPHIC] BRIDGEPOINT
INTERNATIONAL
3.3 Taxes
Service fees do not include any U.S. Federal, foreign, state or local
taxes which are the Client's legal responsibility including, but not
limited to, income, withholding, stamp, sales, excise and turnover
taxes or use taxes, fees, charges or assessments of any nature, however
denominated, which may now or hereafter be levied by any governmental
authority on the Service provided or payments made under this Agreement
("Taxes"). Any such Taxes and interest thereon (and, if resulting from
Client fault or negligence, penalties thereon) shall be paid and borne
by Client, or, if paid by BridgePoint, promptly reimbursed by Client.
When required by law, BridgePoint shall collect any and all Taxes from
Client for remittance to the appropriate governmental authorities. If
the rate of any applicable tax should change or if a new tax is
introduced during the term of this Agreement, such rate or such new tax
becomes applicable, and the Total Monthly Payment shall be adjusted
accordingly.
4) Additional Service
During the term of this Agreement, and subject to BridgePoint's written
consent, which consent shall not be withheld unreasonably, the Client may
request that the nature or amount of Service to be provided by BridgePoint
be increased ("Additional Service"). In such event, another Order must be
executed by the parties. The Client acknowledges pricing may change from
Order to Order. Notwithstanding the above, during the initial Term (as
referenced in article 20.4 of the Special Provisions attached hereto as
Schedule D) only, BridgePoint agrees to supply level one (1) technical
support services at the hourly rate of $85.00 US during business hours and
at $105.00 US outside business hours.
5) BridgePoint's Responsibilities
5.1 BridgePoint is to provide and maintain the Service in accordance with
the requirements set out in the Order and this Agreement, including
Schedule E hereto and incorporated herein by reference.
5.2 BridgePoint shall maintain an inventory documentation listing of all
Equipment in the Co-location Area (inclusive of the main Equipment,
spare parts and the reference number of the location where they are
placed) and updated inventory documentation, which shall include
information regarding the Equipment, spare parts, telephone circuits
and Client port assignments whenever they are replaced or moved or
modified. A copy of this documentation will be kept accessible at the
BridgePoint Centre, and a copy will be provided to Client upon
request.
5.3 BridgePoint shall provide storage space for the Client's spare parts
free of charge to the Client. Client agrees that spare part storage
capacity is proportionate to the space actually occupied by its
Equipment in relation to the total space capacity available in the
Co-location Area and may vary depending on storage space available at
the time of request.
5.4 BridgePoint shall carry out routine visual inspection during business
days to determine whether there is evidence of malfunction, such as
non-working indicator lights or meters, smoke, fire, audible or visual
alarm indications, or unusual noise emission.
3
[GRAPHIC] BRIDGEPOINT
INTERNATIONAL
If such inspection indicates evidence of any such malfunction,
BridgePoint shall notify the Client's contact as specified in Schedule
F, or if there is no answer by attempting to contact a responsible
person at Client's head office. Notwithstanding the foregoing
obligation, BridgePoint shall also take reasonable steps to notify
Client of any other alarm or dangerous condition in the Co-Location
Area that is brought to its attention.
6) Client Responsibilities
6.1 Client shall provide and deliver the Equipment to the Co-location Area
at its own expense. Bridgepoint shall ensure that Client has the
necessary access to elevators and/or freight elevators for purposes of
Equipment delivery. Client shall install the Equipment at the
Co-location Area in the presence of a BridgePoint representative.
6.2 Client shall be responsible for obtaining and maintaining all
approvals and permits necessary for Client's use of the Service and
the Equipment. In connection with its use of the Service, Client shall
comply with all domestic, inter-governmental and foreign governmental
regulations, FCC rules and policies, and other laws, rules and
regulations, both current and as may come into effect, that are
applicable to the Service (including, without limitation, any
restrictions that limit or prevent Client's use of the Service in,
between, or among any countries). Client's failure to so comply or to
obtain necessary governmental authorization approval permits both
domestic and foreign, as may be necessary for Client to make use of
the Service, shall not relieve Client of its payment obligations for
Service made available under this Agreement. Nothing herein shall
obligate Client to obtain any permits or licenses for preparing the
Co-location Area all of which shall be the obligation of Bridgepoint.
6.3 Client is responsible for payment of all charges for the Service for
the full Term or Term extension(s) granted hereunder.
6.4 Client may request BridgePoint's staff to perform specific actions on
behalf of the Client that are not specifically identified in the
Order. BridgePoint, acting in good faith will make commercially and
technically reasonable efforts to accommodate such requests, but
BridgePoint may refuse such requests if they are outside the
qualifications of BridgePoint's technicians or requires special
equipment to be performed. Client may communicate any request
described herein by electronic mail ("e-mail") providing the e-mail is
sent to a BridgePoint contact person listed in Schedule F annexed
hereto. Any such request will be deemed to be given as of the date and
time it is received by a BridgePoint contact person listed in Schedule
F.
If BridgePoint proceeds with any such actions not specifically
identified in the Order and requested by Client, Client shall pay
reasonable additional charges, which will be invoiced to Client, for
all the work done in response to such request.
7) Access to Co-location Area and data
Client and its duly authorized contractors, agents, and employees may have
access, twenty four (24) hours a day, seven (7) days a week on an escorted
basis, to the service unit in the Co-location Area where the Equipment is
housed and at any time BridgePoint shall undertake commercially reasonable
efforts to provide Client immediate access to the Co-location Area upon
prior request by calling BridgePoint Network Operation Centre at
▇▇▇-▇▇▇-▇▇▇▇; provided, however, that in no event will it take more than
one hour to provide access. Client may have access to all data and
information available to BridgePoint relating
4
[GRAPHIC] BRIDGEPOINT
INTERNATIONAL
to the performance of this Agreement, by calling BridgePoint's contact as
specified in the Order, or if this person is not available, to a
responsible person at BridgePoint's head office and such information will
be given with reasonable time.
Client's access to the Co-location Area shall be contingent upon escort by
BridgePoint personnel and the observance of safety and security procedures
established by BridgePoint to protect the Co-location Area, BridgePoint
Centre and the equipment of its other Clients in the Co-location Area.
Aside from Client and its duly authorized contractors, agents, and
employees access to the Client's segment of the Co-Location Area shall be
permitted only to BridgePoint staff carrying out obligations under this
Agreement, or Bridgepoint subcontractors having a Bridgepoint escort. Under
no circumstances shall any third parties be permitted access to the
Client's segment of Co-Location Area unless escorted by Client.
8) Term and Extensions
See Article 20.4 of Special Provisions attached hereto as Schedule D.
9) End of Co-location Agreement
Upon the termination of this Agreement at the end of the initial term or
any extension thereof, Client will have up to thirty (30) days to remove
its Equipment from the Co-location Area at its own cost and in
consideration of the then current per diem Co-location Service Fees. If
Client is in default or fails to pay those fees upon thirty (30) days'
notice, BridgePoint may stop providing Service and move the Equipment into
a storage room at Client's costs and without any liability whatsoever in
respect thereof and without any further notice or any form of legal process
whatsoever. In the event of termination by Client pursuant to section 10.1,
Client shall have 60 days to remove its Equipment.
10) Termination
10.1 a) Except as otherwise provided in Section 15, in the event that
BridgePoint materially or repeatedly defaults on any of its obligations,
including, without limitation, failure to take reasonable steps to protect
the Equipment from damage, failure to provide adequate and timely security,
access and support, failure to provide adequate HVAC service, and, within
ten (10) days after written notice is given to Bridgepoint specifying the
default:: (i) such default is not substantially cured within said ten (10)
day period; or (ii) BridgePoint does not obtain the approval of Client for
a plan to remedy the default, the Client may terminate this Agreement by
giving final termination written notice to the Bridgepoint.
10.1 b) Notwithstanding anything herein to the contrary and except as
otherwise provided in Section 15, in the event Bridgepoint fails to provide
uninterrupted electrical power in the amount set forth in the Service Order
as modified, suplemented, or replaced by the parties from time to time
("Power") for more than an aggregate of three (3) hours or fails to provide
Power 5 or more times in a 30 day period, Client may terminate this
Agreement upon written notice to Bridgepoint. If Bridgepoint fails to
provide Power for an aggregate of sixty-one (61) minutes or more in any
thirty (30) day period, Client shall be entitled to a credit on Service
Fees equivalent to one (1) month Service Fees at the then prevailing rate
and if Bridgepoint fails to provide Power for an aggregate of time
exceeding one hundred and twenty-one (121) consecutive minutes in any
thirty (30) day period, Client shall be entitled
5
[GRAPHIC] BRIDGEPOINT
INTERNATIONAL
to a credit on Service Fees equivalent to two (2) months Service Fees at
the then prevailing rate.
10.1 c) In the event that Client materially or repeatedly defaults in the
performance of any of its duties or obligations under this Agreement
(except for default otherwise covered by section 10.2) and, within ten (10)
days after written notice is given to Client specifying the default: (i)
such default is not substantially cured; or (ii) Client does not obtain the
approval of BridgePoint for a plan to remedy the default, BridgePoint may
terminate this Agreement by giving final termination written notice to the
Client upon receipt of which this Agreement shall be terminated without
further notice or delay the whole, without prejudice to BridgePoint's
rights to recover from Client arrears of fees and damages for any loss of
fees suffered by reason of this Agreement having been prematurely
terminated and to enforce any security granted to BridgePoint to guaranty
fulfillment of Client's obligations hereunder and the rights hereunder
shall survive the termination of this Agreement.
10.2 Notwithstanding the foregoing, BridgePoint may terminate this
Agreement by giving ten (10) days written notice if Client is in
default of making any payment hereunder for more than thirty (30)
days from the due date of such payment provided that such default
has not been cured during the aforementioned ten (10) day notice
period.
10.3 If either party becomes the subject of a bankruptcy proceeding; is
the subject of any proceedings relating to its liquidation,
insolvency or for the appointment of a receiver or similar officer
for it, and such proceedings are not dismissed within thirty (30)
days; makes a general assignment for the benefit of all or
substantially all of its creditors; or enters into an agreement for
the composition, extension or readjustment of all or substantially
all of its obligations, then the other party, within the conditions
of applicable law, may immediately terminate this Agreement by
giving written notice. Should Bridgepoint be so declared Bankrupt or
insolvent, Bridgepoint will use commercially reasonable efforts to
continue the Service and availability of the Co-location Area,
subject to the order of any Bankruptcy Court or competent authority.
Notwithstanding anything to the contrary, nothing herein shall be
deemed to have modified any of the parties' rights pursuant to the
United States Bankruptcy Code.
11) Ownership
11.1 For the purposes of this Article, references to the Equipment
shall not be limited to the Equipment, but shall also include any
other equipment which the Client may provide to BridgePoint from
time to time pursuant to the terms and conditions of this
Agreement.
11.2 The Equipment is the property of Client and Client shall bear all
risks of loss during the Term or extension(s) and in the
Equipment's transfer back to Client at the end of this Agreement,
unless loss or damage is due to the negligence or wilful
misconduct of BridgePoint, its officers, employees or agents.
11.3 BridgePoint shall take commercially reasonable precautions for
the security of the Equipment and shall not alienate it or use it
for purposes other than as set forth in this Agreement.
11.4 BridgePoint remains owner of the installation equipment described
in the Order including the Air Conditioning units installed for
the Client's Co-location Area, and
6
[GRAPHIC] BRIDGEPOINT
INTERNATIONAL
such shall not be removed from the Client's Co-location Area at
any time during the Term of this Agreement nor upon termination
of this Agreement.
12) Confidentiality
12.1 During the term of this Agreement, and for a period of three (3)
years after the expiration of the term of this Agreement,
proprietary or confidential information (Information) of any kind
pertaining to both parties' businesses, and all written
Information marked by either party as "Confidential" or
"Proprietary" shall be treated by the other party as secret and
confidential and accorded the same protection as the parties give
to their own Information of a similar nature.
12.2 Notwithstanding the foregoing, confidential Information does not
include information which:
a) has been published or is otherwise readily available to the
public other than by breach of this Agreement;
b) has been rightfully received by Client or BridgePoint from a
third party without breach of any confidentiality
obligations;
c) has been independently developed by Client's personnel or
BridgePoint's personnel without access to, or use of, the
other party's confidential Information;
d) was known to Client or to BridgePoint prior to its first
receipt from the other party and which Client or BridgePoint
as the case may be has documented prior to the date of first
receipt from the other party; or
e) is required to be disclosed by law whether under an order of
a court or government, tribunal or other legal process. In
such cases, Client or BridgePoint, as the case may be, must
immediately notify the other party of the disclosure
requirement, in order to allow the other party a reasonable
opportunity to obtain a court order to protect its rights,
or otherwise to protect the confidential nature of the
Confidential Information.
13) Warranty, Limitation of Liability & Indemnification
13.1 BridgePoint's obligation under this Agreement is to provide Service
to Client and its liability for any failure to do so is limited
exclusively as expressly provided in this Agreement. The foregoing
undertaking is in lieu of all other warranties, expressed or
implied, including, but not limited to, any implied warranties of
merchantability and fitness for a particular purpose. BridgePoint
makes no warranty, express or implied, to any person or entity other
than Client concerning the Service.
13.2 BridgePoint and Client each represent and warrant that they are
validly organized, existing and in good standing in their respective
jurisdictions of domicile and have corporate authority and power to
execute, deliver and perform this Agreement.
13.3 In no event shall BridgePoint be liable for any incidental,
consequential, exemplary or punitive damages or loss of revenues or
profits, whether foreseeable or not, occasioned by any defect in the
provision of service herein, any delay in the provision of service
to Client or any third party, any failure of BridgePoint to provide
service, or
7
[GRAPHIC] BRIDGEPOINT
INTERNATIONAL
any other cause whatsoever. In no event shall BridgePoint's total
liability in connection with its performance under this agreement
exceed an amount equal to one Million US Dollars ($1,000,000.00).
13.4 Client agrees and covenants that it shall utilize the Service
purchased hereunder solely for lawful telecommunications purposes
and in accordance with all applicable telecommunications
regulations; and that it shall at all times during the Term and any
extension(s) granted hereunder comply with all applicable laws
respecting defamatory, obscene, or pornographic materials or
communications or governing the infringement of copyright or other
proprietary rights of any third party. Client further agrees that it
shall defend, indemnify and hold harmless BridgePoint, its officers,
directors, stockholders, employees, agents, and permitted assigns
from any claims, liabilities, losses, costs, or damages, including
attorneys' fees, arising out of the acceptance of Service by Client,
or Client's use (or Client's customer or permitted assigns' use) of
the Service, that: (i) is caused by any act, omission, fault or
negligence of Client or Client's employees, customers or permitted
assigns, or (ii) arises under a warranty or representation by Client
to BridgePoint or to any third party in connection with the Service
or (iii) arises out of libel, slander, infringement of copyright,
trademarks, service marks, trade secrets or patents, or breach in
the privacy or security of transmissions over the Service.
13.5 BridgePoint shall defend, indemnify and hold harmless Client from
any claims, liabilities, losses, costs, or damages, including
attorneys' fees, arising out of the provision of Service to Client
that (i) is caused by any act, omission, fault or negligence of
BridgePoint; or (ii) arises under a warranty or representation by
BridgePoint to Client in connection with the provision of Service,
provided, however, that except as permitted by Section 13.3 and by
Section 10.1 b) with respect to credit, in no event shall
BridgePoint be obligated to indemnify Client for any claims,
liabilities, losses, costs, or damages, including attorneys' fees
and costs, arising out of the provision or lack of provision or
delay in provision by BridgePoint of Service, for which
BridgePoint's sole liability is set forth in Section 13.3 of this
Agreement.
13.6 Each party shall promptly notify the other of any suit, claim or
action which may give rise to the other party's (the "Indemnifying
Party") obligation to indemnify the other party (the "Indemnified
Party"), and shall fully cooperate with the Indemnifying Party and
its insurance agent(s) in the defence of such suit, claim or action.
The Indemnifying Party shall have absolute and sole discretion to
settle any such suit, claim or action; provided that the
Indemnifying Party obtains a release in favour of the Indemnified
Party with respect to all matters that were raised or should have
been raised in such suit, claim, or action. Any indemnification
hereunder shall be offset by any insurance payment recovered by the
Indemnified Party or insurance benefits to which it is entitled. The
indemnification obligations stated in this Article 13 shall survive
any termination of this Agreement.
14) Insurance
Subject to Sections 13.1, 13.3, 13.4 and 13.5 of this Agreement, both
Parties shall be responsible for damage to, or loss of their own property,
both real and personal, and that each shall be responsible for insuring
his own property, with an insurance policy providing extended coverage,
including but not limited to perils of fire together with insurance
against flood, theft, vandalism, malicious mischief, sprinkler leakage and
damage, and boiler and pressure vessel insurance. Client will also
subscribe to and maintain additional insurance
8
[GRAPHIC] BRIDGEPOINT
INTERNATIONAL
covering damages to third-party equipment and personnel caused by the use
of the Equipment for up to the amount specified in the Order, including
Comprehensive General Liability Insurance in an amount not less than three
million dollars ($3,000,000) per occurrence for bodily injury and property
damage and Worker's Compensation in an amount not less than that
prescribed by statutory limits, and any other insurance coverage necessary
to BridgePoint's provision, and Client's taking of Service under this
Agreement. The Client shall furnish BridgePoint, upon request, with
certificates of insurance evidencing such coverage. BridgePoint hereby
declares having subscribed to and will maintain an insurance coverage
sufficient to cover its obligations under Article 13 hereof and will
furnish, upon Client's request an insurance certificate evidencing such
coverage.
15) Excusable Delay
BridgePoint shall not be liable for any failure of performance or
unavailability of Service due to causes beyond its commercially reasonable
control, including, but not in any way limited to (provided that such
events are in fact beyond BridgePoints commercially reasonable control):
acts of God; strikes; labour disputes; acts of war or civil unrest;
satellite or uplink/downlink/ground station disruptions, or acts of third
parties, including, without limitation, landlords, government authorities
and backbone service providers provided BridgePoint gives timely notice to
Client when any such cause has occurred or is expected or imminent, and
provided further that BridgePoint takes commercially reasonable steps to
deliver uninterrupted Service to the maximum extent permitted under the
circumstances, including cooperation with Client to implement temporary
alternatives at reasonable Client expense. Each such event shall
constitute an event of "Force Majeure." If, within fifteen (15) calendar
days of an event of Force Majeure, BridgePoint offers comparable service
to Client or is able to restore Service in accordance with this Agreement,
this Agreement shall be extended by the period the Service was not
available to Client, but only to the extent BridgePoint's third party
contractual arrangements permit such extension. In the event BridgePoint
does not offer comparable service to Client or restore the Service in
accordance with this Agreement during such fifteen (15) day period, Client
may terminate this Agreement as provided in Article 10. The remedies
provided in this Section 15 shall be the only remedies of the Client
because of the non-availability of Service caused by an event of Force
Majeure.
Notwithstanding anything to the contrary BridgePoint agrees and
acknowledges that during the term of this Agreement it will use
commercially reasonable efforts to use the generator back-up to provide
Power in the event that the primary supply is unavailable.
16) Transfer or installation of Equipment
16.1. At no time shall Client be obliged to move its Equipment or receive
the Services hereunder in a Co-location Area that is different from
the initial Co-location Area provided for in this Agreement unless
Client agrees in writing.
17) Choice of Law & Arbitration
All questions concerning the validity and operation of this Agreement
shall be governed by and construed in accordance with the laws of the
State of New York, U.S.A., applicable to contracts entered into and wholly
to be performed in the State of New York, without giving effect to its
provisions governing conflicts of laws. BridgePoint and Client agree that:
9
[GRAPHIC] BRIDGEPOINT
INTERNATIONAL
17.1 any controversy or claim not settled by the parties arising out of
or relating to this Agreement, or any breach thereof or asserted
breach thereof, shall be resolved by arbitration in accordance with
the rules of the American Arbitration Association in New York City,
New York with one arbitrator, expert in the field of
telecommunications, to preside;
17.2 if the parties cannot agree to one arbitrator within ten (10)
business days, then within five (5) business days thereafter each
party shall choose one arbitrator expert in the field of
telecommunications and the two arbitrators so chosen shall within
five (5) business days, jointly elect and agree to a third
arbitrator, also expert in the field of telecommunications;
17.3 any notice, document or complaint in any such proceeding may be
served by delivery to the addresses identified in the Order; and
17.4 any award rendered by such an arbitral proceeding shall be final and
binding and judgment upon any such award may be entered in any court
of competent jurisdiction thereof. The remedies provided in this
Agreement for breach thereof by BridgePoint or Client shall
constitute the sole and exclusive remedies to the aggrieved party,
and any and all other remedies which might otherwise be available
under the law of any jurisdiction are hereby expressly waived by
both BridgePoint and Client.
18) Notices
Subject to the provisions of Section 6.4, any notice or communication under
this Agreement shall be in writing and shall be hand-delivered, given by
fax, overnight courier service, or sent by registered mail return receipt
requested, postage prepaid, to the other party's designated representative,
receiving such communication at the address specified herein, or such other
address or person as either party may in the future specify to the other
party. Such notice shall be deemed to be received upon delivery or, by fax,
on the next business day following transmission provided electronic
evidence of properly completed transmission is produced at point of origin
or, if mailed, on the fourth business day following the date of mailing.
To BridgePoint:
To the attention of the Chief Financial Officer
▇▇▇ ▇▇▇▇-▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇
▇▇▇ ▇▇▇
Tel: (▇▇▇) ▇▇▇-▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
To Client:
To the attention of the Chief Financial Officer
▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇., ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Tel: (▇▇▇) ▇▇▇-▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
10
[GRAPHIC] BRIDGEPOINT
INTERNATIONAL
19) Miscellaneous
19.1 Neither party may assign or transfer all or any part of its rights
under this Agreement, without the prior written consent of the
other, except when assigning all of their rights and obligations to
any legal entity controlling, controlled by, or under common control
with it, in which case thirty (30) days' prior notice must be given
to the other party. Notwithstanding the foregoing, a transfer by
BridgePoint or Client in connection with the sale by either party of
all or substantially all of its assets, or in connection with a
merger or consolidation of either party into or with another
company, shall be a permitted assignment hereunder to which the
other Party grants its consent under condition that the level of
credit of said legal entity is considered satisfactory to that other
Party.
19.2 BridgePoint may enter into subcontracts with third parties for its
performance of any part of its duties and obligations. If any
obligations of BridgePoint are assigned to a subcontractor,
BridgePoint will remain responsible for such obligations under this
Agreement.
19.3 This Agreement is not intended to create, nor shall it be construed
to be, a joint venture, association, partnership, agency, franchise,
or other form of juridical entity. Neither party shall have, nor
hold itself out as having, any right power or authority to assume,
create, or incur any expenses, liability, or obligation on behalf of
the other party, except as expressly provided for herein.
19.4 If any provision of this Agreement is held invalid, illegal or
unenforceable in any respect, such provision shall be treated as
severable, leaving the remaining provisions unimpaired, provided
that such does not materially prejudice either party in their
respective rights and obligations contained in the valid terms,
covenants, or conditions of this Agreement.
19.5 There are no intended third party beneficiaries to this Agreement.
19.6 The failure of either party to require the performance of any of the
terms of this Agreement or the waiver by either party of any default
under this Agreement shall not prevent a subsequent enforcement of
such term, nor be deemed a waiver of any subsequent breach.
19.7 This Agreement may not be modified, supplemented, or amended, or
default hereunder waived, except upon the execution and delivery of
a written agreement signed by the authorised representative of each
party.
19.8 Both parties represent and warrant that each has the full authority
to perform its obligations under this Agreement and that the person
executing this Agreement has the authority to bind it.
19.9 The provisions of Articles 3, 9, 11, 12, 13, 17, 18 and 19 and
Sections 6.3 and shall survive the expiration or termination of this
Agreement for any reason.
19.l0 This Agreement, together with the Order and Schedules annexed
hereto, constitutes the entire Agreement and the final and full
terms of understanding between the parties and supersedes all
previous agreements, understandings, negotiations, and
11
[GRAPHIC] BRIDGEPOINT
INTERNATIONAL
promises, whether written or oral, between the parties with respect
to the subject matter hereof.
19.ll During the Term and any extension(s) granted hereunder, and for a
period of one (1) year thereafter, neither party shall knowingly
solicit the employment of, or offer employment to, any employee of
the other party.
19.12 This Agreement may be signed in counterparts, each of which will
have the same force and effect as a fully-executed original, but
both of which shall constitute one Agreement.
19.13 The headings of the sections and subsections of this Agreement are
for the purposes of reference only and do not evidence the
intentions of the parties.
19.14 The parties acknowledge that this agreement, upon execution, shall
not take effect until the addendum to the Colocation Agreement in
the form attached as Schedule G has been executed and delivered by
Bridgepoint International, Inc. and Bridgepoint International
(Canada), Inc.
12
[GRAPHIC] BRIDGEPOINT
INTERNATIONAL
20. Special provisions
See attached Schedule D entitled "Special Provisions" incorporated
herein by reference.
21 Schedules
Schedule A: Order -- Installation Fees
Schedule B: Order -- Service Fees
Schedule C: Order -- Plan of Co-location Area and additional area
under Right of First Refusal
Schedule D: Special Provisions
Schedule E: General Information with respect to BridgePoint services
Schedule F: Bridgepoint contact person list
Schedule G: Addendum to Co-location Agreement
13
[GRAPHIC] BRIDGEPOINT
INTERNATIONAL
BRIDGEPOINT AND CLIENT HEREBY ACKNOWLEDGE THAT THE TERMS AND CONDITIONS
CONTAINED HEREIN SHALL GOVERN EACH ORDER MADE BY CLIENT FOR SERVICE TO BE
PROVIDED BY BRIDGEPOINT AND THAT CLIENT SHALL ABIDE BY SUCH TERMS AND
CONDITIONS.
For and on behalf of the Client Zone Telecom, Inc.
---------------------------------------------------
(Name of Client)
Having its head office at ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇., ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
---------------------------------------------------
(Street, City, State, Country, Postal Code)
Duly authorized by ▇▇▇▇▇▇ ▇▇▇▇▇, Vice President Strategy, North America
---------------------------------------------------
(Name of Representative, Title)
Date 06-02-01
---------------------------------------------------
(Day, Month, Year)
/s/ ▇▇▇▇▇▇ ▇▇▇▇▇
---------------------------------------------------
(Signature)
For and on behalf of BridgePoint International (USA) inc. having its head office
at ▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Duly authorized by ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, President and COO
----------------------------------
(Name of Representative, Title)
Date 06-02-01
----------------------------------
(Day, Month, Year)
/s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
----------------------------------
(Signature)
Duly authorized by ` Yves Grou, Chief Financial Officer
----------------------------------
(Name of Representative, Title)
Date 06-02-01 February 23, 2001
----------------------------------
(Day, Month, Year)
/s/ Yves Grou
----------------------------------
(Signature)
14