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EXHIBIT 10.27
FIBER OPTIC PRIVATE NETWORK AGREEMENT
Product Order
This Product Order ("Product Order") together with the Exhibits and the General
Terms and Conditions attached hereto constitute the Fiber Optic Private Network
Agreement ("Agreement") which is effective as of September 1, 1998 by and
between Metromedia Fiber Network Services, Inc. ("MFN") 0 Xxxxx Xxxxxxxxx
Xxxxxx, 0xx Xxxxx, Xxxxx Xxxxxx, Xxx Xxxx 00000, and AboveNet Communications,
Inc. ("Carrier") whose address is 00 Xxxx Xxx Xxxxxxxx, Xxxxx 0000, Xxx Xxxx,
Xxxxxxxxxx 00000. Definitions of terms used in this Agreement appear in this
Product Order, Exhibits and in the General Terms and Conditions.
1. Carrier orders and MFN will provide Leased Fiber as follows:
1.1 Lease Term: 240 Months
1.2 Number of Leased Fibers: Two (2) strands of single mode fiber in a
Point to Point configuration.
1.3 Carrier locations ("Location(s)"):
1.3(a) 0000 Xxxxx Xxxxxxxxx, Xxxxxxxx 0xx Xxxxx, Xxxxxx, Xxxxxxxx
[*]
1.4 Leased Fiber Specifications: See Exhibit A
1.5 Installation Charge and Lease Payments:
1.5(a) One Time Installation Charge: N/A
1.5(b) Monthly Lease Payment:
1.5.b.1. Dark Fiber [*]
1.5.b.2. Dark Fiber Maintenance [*]
1.5.b.3. Prepayment of 4 months
Monthly Lease Payment: [*]
1.6 Carrier will pay all Applicable Taxes (as provided in the Agreement)
on the Installation Charge and all Lease Payments as and when due.
1.7 Payment Terms for 1.5.b.3: Due upon signature of contract.
2. Estimated Installation Completion Date(s): [*]
3. Notice addresses and contact persons:
3.1 Metromedia Fiber Network Services, Inc.
0 Xxxxx Xxxxxxxxx Xxxxxx, 0xx Floor
White Plains, New York 10601
Attention: Vice President -- Marketing
*Confidential portion has been omitted and filed separately with the Commission.
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If declaring a default or termination, a copy of the notice must be
sent to:
Metromedia Fiber Network Services, Inc.
0 Xxxxx Xxxxxxxxx Xxxxxx, 0xx Floor
White Plains, New York 10601
Attention: Vice President - Legal Affairs
3.2 AboveNet Communications, Inc.
00 Xxxx Xxx Xxxxxxxx, Xxxxx 0000
Xxx Xxxx, Xxxxxxxxxx 00000
Xxxx Xxxx, Chief Technology Officer
4. Early Termination Charge:
4.1 If this Product Order is terminated pursuant to Section 11.1 of the
General Terms and Conditions, Carrier will pay to MFN an Early
Termination Charge (plus applicable sales or other taxes) for the
Leased Fiber determined as follows:
o 1st year termination -- 100% of all unpaid Leased Fiber
Monthly Lease Payments for the first year, plus 80% of all
unpaid Leased Fiber Monthly Lease Payments for the second
year, plus 60% of all unpaid Leased Fiber Monthly Lease
Payments for the third year, plus 40% of all unpaid Leased
Fiber Monthly Lease Payments for the fourth year, plus 20%
of all unpaid Leased Fiber Monthly Lease Payments for the
fifth year, plus 10% of all unpaid Leased Fiber Monthly
Lease Payments for the sixth through twentieth years.
o 2nd year termination -- 80% of all unpaid Leased Fiber
Monthly Lease Payments for the second year, plus 60% of
all unpaid Leased Fiber Monthly Lease Payments for the
third year, plus 40% of all unpaid Leased Fiber Monthly
Lease Payments for the fourth year, plus 20% of all unpaid
Leased Fiber Monthly Lease Payments for the fifth year,
plus 10% of all unpaid Leased Fiber Monthly Lease Payments
for the sixth through twentieth years.
o 3rd year termination -- 60% of all unpaid Leased Fiber
Monthly Lease Payments for the third year, plus 40% of all
unpaid Leased Fiber Monthly Lease Payments for the fourth
year, plus 20% of all unpaid Leased Fiber Monthly Lease
Payments for the fifth year, plus 10% of all unpaid Leased
Fiber Monthly Lease Payments for the sixth through
twentieth years.
o 4th year termination -- 40% of all unpaid Leased Fiber
Monthly Lease Payments for the fourth year, plus 20%
of all unpaid Leased Fiber Monthly Lease Payments for
the fifth year, plus 10% of all unpaid Leased Fiber
Monthly Lease Payments for the sixth through
twentieth years.
o 5th year termination -- 20% of all unpaid Leased Fiber
Monthly Lease Payments for the fifth year, plus 10%
of all unpaid Leased Fiber Monthly Lease Payments for
the sixth through twentieth years.
o 6th through 20th year termination -- 10% of all unpaid
Leased Fiber Monthly Lease Payments for the sixth through
twentieth years.
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4.2 If only a Prepaid Lease Payment is paid or payable and no Monthly
Lease Payments, then the Early Termination Charge will be equal to
the unamortized portion of the Prepaid Lease Payment over the Lease
Term as of the date of termination.
5. Special Requirements:
5.1 MFN will provide collocation to Carrier for Carrier's
telecommunication equipment in conjunction with Leased Fiber under separate
agreement based on the following pricing (this pricing is in addition to 1.5 of
this Product Order):
5.1(a) Collocation space for one (1) 7 foot by 23 inch wide
rack housing customers telecommunications equipment, and
DC power consisting of -48V DC @ 20 amps with dual A and
B feeds, at (6) six MFN Regeneration/Junction Sites
along the New York to Washington DC backbone:
[*] 240 Month Term
5.1(b) Carrier will be responsible for all collocation at 0000
Xxxxx Xxxxxxxxx, Xxxxxx, Xxxxxxxx. [*]
5.2 Carrier will provide all building entrances and risers at 0000 Xxxxx
Xxxxxxxxx, Xxxxxx, Xxxxxxxx [*]
5.3 If Carrier wishes to lease additional fiber strands between the
Locations, Carrier will deliver a written request therefore to MFN
on or before the first anniversary of the effective date of this
Product Order. Such written request will include the number of fiber
strands requested, up to four (4) additional fiber strands. If
additional fiber strands are available, MFN will prepare and deliver
to Carrier a Product Order for such additional fiber strands which
will include the price and Estimated Installation Completion Date.
MFN will use commercially reasonable efforts to provide access to
such additional fiber strands within sixty (60) to ninety (90) days
after delivery of such written request. The Monthly Lease Payment
for such additional fiber strands will be [*] per fiber strand, per
month.
The persons signing this Agreement are authorized by the respective parties to
do so. Signature constitutes acceptance of all terms and conditions in this
Product Order, the Exhibits and the General Terms and Conditions.
AboveNet Communications, Inc. Metromedia Fiber Network Services, Inc.
By: /s/ XXXX XXXX By: /s/ XXXXXX X. XXXXXXXXXXX
--------------------------------- ---------------------------------
Name: Xxxx Xxxx Xxxxxx X. Xxxxxxxxxxx
-------------------------------
Title: CTO President
------------------------------
Date: 8/31/98 Date: 9/2/98
------------------------------- -------------------------------
*Confidential portion has been omitted and filed separately with the Commission.
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FIBER OPTIC PRIVATE NETWORK AGREEMENT
EXHIBIT A
LEASED FIBER SPECIFICATIONS
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FIBER OPTIC PRIVATE NETWORK AGREEMENT
GENERAL TERMS AND CONDITIONS
1. TERM AND LEASE
1.1 MFN hereby leases to Carrier optical fiber ("Leased Fiber") on MFN's fiber
optic cable network ("Network") and/or constructed and installed
specifically for Carrier and the equipment and interfaces described in the
Product Order ("Equipment"), as provided in the Product Order. The Leased
Fiber and Equipment leased by Carrier will be referred to as the "Product".
The lease term ("Lease Term") and other specific terms pertaining to the
Product are set forth in the Product Order. The term "Party" will refer,
individually, to either MFN or Carrier and the term "Parties" will refer to
both of them. The term "Agreement" will mean and include the Product Order
and all Exhibits thereto and these General Terms and Conditions.
1.2 MFN will use commercially reasonable efforts to complete installation of
and provide Carrier with access to the Product on or about the Estimated
Installation Completion Date specified in the Product Order at the
Locations specified in the Product Order ("Turnover Date"). For a period of
time not to exceed ten (10) business days after the Turnover Date (the
"Acceptance Test Period"). Carrier will conduct such testing as it
reasonably deems necessary to ensure that the Product conforms in all
material respects to the material technical specifications set forth in the
relevant Exhibits ("Specifications"). Carrier will use commercially
reasonable efforts to complete such acceptance testing and notify MFN in
writing within five (5) business days after the Turnover Date, but in any
event within the Acceptance Test Period, of acceptance or of any
"Deficiencies" (as defined herein) in the Product. Deficiencies exist if
the Product does not conform in all material respects to the relevant
Specifications. Upon receipt of such notification from Carrier, MFN will
promptly undertake correction of such Deficiencies and restore access to
and use of the Product to Carrier. The "Service Date." whereupon the Lease
Term commences, will be the earlier of (i) completion of testing and
acceptance of Product by Carrier, (ii) expiration of the Acceptance Test
Period or, (iii) if Carrier has identified Deficiencies, then the first
date upon which Product conforms in all material respects with the relevant
Specifications.
1.3 [*]
[*]
*Confidential portion has been omitted and filed separately with the Commission.
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[*]
1.4 Carrier will obtain all necessary approvals for access into the Location
buildings and for the use of any required building riser conduit or other
required building facilities at all Locations. Unless otherwise provided
for in the Product Order, if there is no existing and available riser
conduit or other required facilities within such buildings then MFN will
perform all construction and installation of such riser conduit and Carrier
will reimburse MFN for the entire cost to construct and install such riser
conduit plus fifteen percent (15%) plus applicable sales or other taxes.
1.5 Upon the expiration of the Lease Term, or any earlier termination of this
Agreement, Carrier will promptly remove from any property owned, leased or
licensed by MFN all Carrier property, equipment and other materials used
in connection with the Product within forty five (45) days from such
expiration or termination. Carrier will complete such removal in a manner
that does not interfere with or damage the Product or the Network. If
Carrier fails to remove its property within such period, such property will
be deemed abandoned, and MFN will make such disposition of the property as
it deems necessary or advisable at Carrier's sole expense.
1.6 [*]
[*]
*Confidential portion has been omitted and filed separately with the Commission.
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2. TERMS OF PAYMENT
2.1 Unless otherwise provided for in the Product Order, Carrier agrees to pay
the One Time Installation Charge upon the execution of this Agreement and
to prepay an amount equal to the Leased Fiber Monthly Lease Payment for
four (4) months or such portion of the Prepaid Lease Payment as provided in
the Product Order, for the Location(s), and any Security Deposit for the
Equipment, if applicable. Carrier will also pay to MFN all applicable sales
or other taxes other than taxes on or measured by MFN's income or capital,
("Applicable Taxes"), unless Carrier is eligible for an exemption and
Carrier provides to MFN an exemption certificate or other documentation.
Commencing on the Service Date and continuing each month thereafter for the
duration of the Lease Term, Carrier will pay the Monthly Lease Payment (and
the Monthly Maintenance Payment for the Equipment, if applicable) plus
Applicable Taxes in advance for each month. If service commences after the
first day of any month or terminates before the last day of a month, then
the payment for such partial month will be pro rated based on the number of
days of the Lease Term during that month to the number of days in that
month. Carrier will include such pro rata payment for the initial partial
month in the first monthly payment at the commencement of the Lease Term.
The Prepaid Lease Payment, if any, will be paid as provided in the Product
Order.
2.2 The Monthly Lease Payment for the Leased Fiber and, if applicable, the
Monthly Maintenance Payment for the Equipment and any payment pursuant to
the Collocation License (together, the "Payment") will be increased (but
not decreased) each year during the Lease Term by the percentage increase,
if any, in the Consumer Price Index - Urban Wage Earners and Clerical
Workers (U.S. City Average, All Items, Base 1982-1984 equals 100) (the
"Index"), as published by the United States Department of Labor, Bureau of
Labor Statistics (the "Bureau"). The Index for the calendar month which is
four (4) months prior to the Service Date will be compared with the Index
for the calendar month which is four (4) months prior to each anniversary
of the Service Date during the Lease Term and the Payment will be increased
in accordance with the percentage increase, if any, between such Indexes.
2.3 If Carrier fails to pay any sum when due pursuant to this Agreement, then,
in addition to such sum, Carrier will pay interest on such unpaid sum at
the lower of the highest legal rate of interest permitted in the State of
New York or one and one-half percent (1.5%) per month.
3. MAINTENANCE, RESTORATION AND REPAIR OF THE NETWORK AND PRODUCT MONITORING
3.1 MFN will provide remote monitoring of the Network and the Product to the
extent that the Product is incorporated into the Network. MFN will use
commercially reasonable efforts to maintain the Product in accordance with
the Specifications (subject to reasonable wear and tear) and the Network in
good operating condition at all times during the Lease Term. Carrier shall
pay for maintenance as set forth in Section 1.5(b) of the Product Order
and as set forth in Section 3.4 hereof.
3.2 An "Outage" will mean the complete interruption of communications on one or
more of Carrier's Leased Fibers resulting from physical damage to, or
severance of, or a break in, or other failure of any Product. If an Outage
or any other material degradation of service on any Leased Fibers occurs
Carrier will immediately notify MFN by telephone at (000) 000-0000 or
through such other notification procedure as Parties may establish.
Provided that MFN personnel or contractors have access to affected Carrier
facilities immediately upon notification, MFN will respond and commence
work within two (2) hours after the time of notification by Carrier and
restore effective use of the Product as expeditiously as
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practicable, but in no event more than four (4) hours after receipt by MFN
of Carrier's notification, subject to "Force Majeure" as provided in
Section 11 hereof.
3.3 Except for any Outage caused by or resulting from (i) Force Majeure as set
forth in Section 11 hereof; (ii) the act or omission of Carrier, its
employees, agents or contractors, or any of Carrier's equipment or
facilities used in connection with the Product; or (iii) planned Outages by
reason of Services which have been scheduled and approved in advance by
Carrier ("Excepted Outages") in the event of an Outage, Carrier will
receive from MFN a credit ("Outage Credit") calculated at 5% of the Leased
Fiber Monthly Lease Payment for the affected Leased Fiber strands for each
four (4) hours of Outage, up to a maximum of the Leased Fiber Monthly Lease
Payment for one (1) full month. Except in the case of a Prepaid Lease
Payment or termination as provided in this Section 3.3, the Outage Credit
will be applied against future payments which may become due and payable by
Carrier to MFN. The Outage Credit will be determined by dividing the total
Leased Fiber Monthly Lease Payment by the number of Locations and dividing
this result by the number of Leased Fiber strands to determine the Leased
Fiber Monthly Lease Payment per Leased Fiber Strand. This result is then
multiplied by five percent (5%) and by the number of four (4) hour Outage
periods. For example, if the Leased Fiber Monthly Lease Payment for six (6)
Locations is $60,000.00, the Leased Fiber Monthly Lease Payment for each
Location would be $10,000.00, and if there were four (4) Leased Fiber
strands for each Location, the result would be $2,500.00 per Fiber Strand.
If the Outage affected two (2) strands at one Location for eight (8) hours,
the Outage Credit would be $2,500 x 5% x 2 = $125.00. For the purposes of
determining the Outage Credit pursuant to this Section 3.3, if the Product
Order provides for a Prepaid Lease Payment, then the Monthly Lease Payment
will be determined by dividing the Prepaid Lease Payment by the total
number of months of the Lease Term. The Outage Credit will be in the form
of a cash payment to Carrier by MFN if the Carrier has paid the Prepaid
Lease Payment in full or if this Agreement is terminated by either Party as
provided in Section 34 hereof. Outage Credits will not be credited or
payable for any period of time during which MFN personnel or contractors
are denied access to Carrier Locations or other facilities to remedy an
Outage.
3.4 If an Outage occurs and continues for a period longer than fifteen (15)
days for any reason other than "Force Majeure" as defined in this
Agreement, then at any time thereafter, unless and until such Outage is
corrected, either Party can terminate this Agreement and the Product Order
with respect to the Product subject to the Outage by written notice of such
termination delivered to the other Party. Notwithstanding the foregoing, if
such Outage occurs and continues by reason of a breach by a Party of its
obligations under this Agreement, such breaching Party will not have any
right to terminate this Agreement. The Outage Credit and right to terminate
will be the sole and exclusive remedy of Carrier and liability of MFN for
any Outage regardless of the cause of such Outage.
3.5 If all or part of the Product requires restoration, replacement or repair
by reason of an act or omission of Carrier, its employees, agents, or
contractors or any of Carrier's equipment or facilities used in connection
with the Product, such repair, replacement and/or restoration will be made
by MFN, at Carrier's sole expense, in accordance with MFN's then current
time and materials rates plus Applicable Taxes. In addition, Carrier will
not receive any Outage Credit by reason of the foregoing.
3.6 MFN may assign or subcontract to any third party any or all of its
performance obligations (including maintenance) under this Agreement and
Product Order at any time, without the consent of Carrier, provided that
MFN will remain obligated for such performance in accordance with the
terms of this Agreement.
3.7 MFN will have the right to inspect Carrier's use of the Product at any
time and from time to time during normal business hours upon at least
twenty four (24) hours' prior notice by MFN.
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4. USE AND OWNERSHIP OF THE PRODUCT
4.1 Carrier will not, by itself or through any agent or contractor, make any
repair to or replacement of the Product or the Network or any other
equipment or facilities provided by MFN in connection with the Product or
otherwise. Carrier will not install any equipment to be used with the
Product or use the Product in any manner which damages or interferes with
the Product or the Network.
4.2 Carrier will use the Product in full compliance with all applicable
federal, state and local laws, rules and regulations and all applicable
franchises, rights of way, leases, licenses, contracts and other
obligations to third parties with respects to the Network or Product.
Carrier will obtain and maintain in effect during the Lease term all
rights, leases, licenses, permits and governmental or non-governmental
approvals necessary for use of the Product by Carrier and its customers.
4.3 Carrier acknowledges and agrees that the Product is provided for use (1)
exclusively by Carrier and/or affiliated entities which control or are
controlled by or commonly controlled with Carrier ("Affiliates") named in
the Product Order (if applicable the term "Carrier" as used in this
Agreement will include any such Affiliates of Carrier), (2) customers of
Carrier and (3) only in the ordinary course of business of Carrier. For
the purposes of this Agreement, the ordinary course of business of Carrier
will not include the lease, license, sale or other transfer of the Leased
Fiber as "dark fiber" (as such term is uncommonly understood in the
telecommunications industry). Carrier will not under any circumstances (a)
permit or provide access to or use of the Product, in whole or part, to
any third party (other than a customer of Carrier in the ordinary course
of business of Carrier), pursuant to (by way of example and not in
limitation) sublease, license, sublicense or resale, or any other right to
use, or (b) share or otherwise utilize in conjunction with a third party
(including without limitation in any joint venture or as part of any
outsourcing activity), without the prior written consent of MFN, which
consent may be given or withheld in MFN's sole discretion. Any breach of
this Section 4.3 will be deemed to be a material breach of this Agreement
and in the event of such material breach MFN will have the right to
immediately terminate this Agreement, any applicable Product Orders and
Carrier's access to the Network, in addition to any and all rights and
remedies.
4.4 MFN retains all right, title and interest in and to the Product and the
Network to the points within the locations specified in the Product Order
at which MFN's facilities end and Carrier's facilities begin, subject only
to the grant of access and use provided to Carrier pursuant to this
Agreement.
4.5 MFN reserves the right to utilize unused external building access and
space within the building conduit(s) occupied by the Product at the
locations and otherwise, provided that such use does not interfere with or
hinder Carrier's use of its Product as permitted hereunder.
5. AUTHORIZATIONS; RELOCATION; CONDEMNATION
5.1 "Authorization(s)" will mean all material and applicable governmental or
non-governmental licenses, easements, rights of way, conduit, pole
attachment and any other facilities or property rights, licenses,
contracts, franchises, approvals, permits, orders, consents, and all other
rights required for MFN to operate and maintain the Network or provide the
Product to Carrier pursuant to this Agreement.
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5.2 MFN will use commercially reasonable efforts to have or obtain by the
Service Date, all Authorizations and to maintain or renew all such
Authorizations through the Initial Term and to replace such Authorizations
with reasonably suitable replacement Authorizations if any expire or are
terminated or discontinued during the Initial Term. If any Authorizations
are modified, terminated or discontinued and not replaced, and the loss of
such Authorizations threatens to cause or does cause material financial
harm to MFN, or prevents or materially interferes with MFN's control,
possession and/or use of the Network or ability to lease the Product or
materially and adversely affects the use by Carrier of the Product, then
MFN will at its option either (i) provide Carrier with comparable Product
or fiber optic capacity on portions of MFN's then existing Network (and/or
other MFN Networks, including networks belonging to or controlled by MFN
Affiliates) or on networks of third parties, or (ii) terminate this
Agreement with respect to the affected Product and rebate to Carrier the
pro rata portion of all Prepaid Lease Payments allocable to the terminated
Product and amortized over the remainder of the Lease Term. The foregoing
will be MFN's sole and exclusive liability and Carrier's sole and exclusive
remedy with respect to the foregoing.
5.3 If MFN receives notice of any request, intent or plan by any governmental
or non-governmental third party, to relocate any material part of the
Product or any material segment of MFN's Network used in the provision of
the Product, MFN will notify Carrier of such request, intent, or plan. If
MFN is required by any such third party to relocate any segment of MFN's
network used in providing the Product, MFN will give Carrier at least
sixty (60) days (or such lesser period of notice that MFN may have
received) prior written notice of any relocation ("Relocation Notice").
Together with the Relocation Notice, MFN will provide an estimate of the
cost of such relocation. MFN will relocate the Leased Fibers, and, to the
extent MFN is not reimbursed for the cost of such relocation by a third
party, governmental entity or otherwise, Carrier will pay its pro rata
share of the costs associated with the relocation of the Product; except,
however, to the extent that such relocation is the direct result of any
negligent or willful act or omission of MFN. MFN will use its
commercially reasonable efforts to secure an agreement for reimbursement
from any third party, governmental entity or otherwise, requiring any
relocation of the Network and the Product.
5.4 If any portion of the Network or the Product and/or the Authorizations in
or upon which the Product has been installed, become the subject of a
condemnation proceeding which is not dismissed within one hundred eighty
(180) days after the date of filing of such proceeding and which could
reasonably be expected to result in a taking by any governmental agency or
other party having the power of eminent domain for public purpose or use,
both Parties will be entitled, to the extent permitted under applicable
law, to participate in any condemnation proceedings for compensation by
either joint or separate awards for the economic value of their respective
interests in the Leased Fibers that are subject to such condemnation
proceeding.
6. WARRANTIES
6.1 MFN warrants to Carrier that upon the Service Date Product will operate in
accordance with the Specifications related thereto.
EXCEPT AS OTHERWISE EXPRESSLY PROVIDED IN THIS AGREEMENT, MFN DISCLAIMS ALL
WARRANTIES WHETHER EXPRESS OR IMPLIED INCLUDING ANY AND ALL WARRANTIES OF
MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE WITH RESPECT TO THE (i)
NETWORK OR PRODUCT, (ii) THE LEASE GRANTED PURSUANT HERETO, (iii) MAINTENANCE
SERVICES (iv) CONSTRUCTION AND INSTALLATION SERVICES, IF ANY, AND (v) ANY OTHER
SERVICE(S) (HEREINAFTER (iii) THROUGH (v)
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WILL COLLECTIVELY BE REFERRED TO AS "SERVICES") PROVIDED BY OR ON BEHALF OF MFN
HEREUNDER.
7. LIABILITY/INDEMNIFICATION
7.1 Except for the gross negligence or willful misconduct of a Party hereto
and except where a specific remedy is provided in this Agreement, the liability
of each Party to the other Party for damages will be limited to the total
Installation Charges the Payments paid or payable by Carrier for the Lease Term
during which the damages were incurred. In no event will either Party be liable
to the other Party for any incidental, indirect, special, consequential,
exemplary, or punitive damages arising out of or relating to this Agreement,
the lease granted hereunder, the Network, Product or Services provided
hereunder, including damages based on loss of revenues, profits or lost
business opportunities, regardless of whether the respective Party had been
advised of or could have foreseen the possibility of such damages.
7.2 Each Party agrees to indemnify, defend and hold the other, its officers,
directors, employees, agents and contractors harmless from and against all
loss, damage, liability, cost and expense (including reasonable attorney's fees
and expenses) by reason of any claims or actions by third parties for (i)
bodily injury, including death, (ii) damage, loss or destruction or any real or
tangible personal property (including without limitation the Network and
Product) which third party claims arise out of or relate to (a) any Product or
Services provided by or on behalf of MFN hereunder, (b) a Party's performance
of or failure to perform any term, condition or obligation under this
Agreement, (c) any act or omission of a Party's directors, agents, employees,
contractors, representatives or invitees, or (d) Carrier's or its customer's use
of the Product and conduct of their respective businesses including without
limitation the content of any video, voice or data carried by Carrier or its
customers on the Product or Network.
7.3 Except as otherwise set forth in this Agreement, nothing contained herein
will operate as a limitation on the right of either Party to bring an action
for damages against any third party based on any act or omission of such third
party as such act or omission may affect the construction, operation, or use of
the Product. Each Party agrees to execute such documents and provide such
commercially reasonable assistance, at the claiming Party's sole expense, as
may be reasonably necessary to enable the claiming Party to pursue any such
action against such third party.
8. CONFIDENTIALITY
1.1 The Parties acknowledge and agree that this Agreement and the information
each Party has provided or will provide in connection with this Agreement
or that the other Party learns or obtains from a source other than public
domain or from a source (including a Party) not in violation of any
obligation of confidentiality, including, without limitation, the terms and
conditions thereof, are and will be confidential and proprietary to the
Party providing such information (the "Providing Party"). The Party in
receipt of or learning or obtaining the confidential information (the
"Receiving Party") agrees not to distribute, use or disclose to any third
party the confidential information of the Providing Party.
8.2 Except as may be required by applicable legal requirements in the course
of defending or prosecuting a legal, insurance or other claim or as
required by applicable law, rule or regulation, each Party will restrict
dissemination of confidential information to only those persons who must
have access to such confidential information in order to perform their
respective rights or obligations hereunder. Each Party will promptly
notify the other Party of any such required disclosure to enable such
other Party to seek protective relief therefrom and shall cooperate as
such other Party may request in connection therewith.
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8.3 Customer may disclose the identity of MFN as a supplier of Customer, each
with the prior written consent from the other; which consent will not be
unreasonably withheld or delayed; provided, that no such disclosure
shall imply any endorsement of the disclosing Party or contain any
misleading reference to the nature of the relationship between the
Parties.
8.4 Each Party acknowledges and agrees that the information of a Party
described in this Section 8 constitutes valuable property of such Party
and that such Party will suffer irreparable injury not compensable by
money damages for which such Party will not have an adequate remedy at
law in the event of a breach by the other Party of the provisions of
this Section 8 and therefore such Party shall be entitled to injunctive
relief to prevent or curtail any such breach, threatened or actual. The
foregoing shall be without prejudice to or limitation on any other
rights a Party may have under this Agreement, at law or in equity.
9. NOTICES
Unless otherwise provided herein, all notices and communications
concerning this Agreement will be in writing and sent to the address (and
contact person) specified in the Product Order, or at such other address as may
be designated in writing by a Party. Unless otherwise provided herein, notices
will be sent by certified US Postal Service, return receipt requested, or by
commercial overnight delivery service, or by facsimile, and will be deemed
delivered, if sent by US Postal Service, five (5) days after deposit, if sent
by facsimile, upon verification or receipt or, if sent by commercial overnight
delivery service, one (1) business day after deposit therewith.
10. RENEWAL TERM
Provided that Carrier is not in breach of any of its material obligations under
this Agreement and subject to the conditions of this Agreement, Carrier may
renew the term of this Agreement for the Product for one (1) additional renewal
term upon the terms and conditions of this Agreement, except for the length of
such renewal term and the Installation and Lease Fee payments, which the
Parties will negotiate in good faith following Carrier's written request for
renewal delivered to MFN no earlier than one year before the scheduled
expiration date of the initial term and no later than ninety (90) days before
such expiration date.
11. TERMINATION/FORCE MAJEURE
11.1 If any of the following events of default occur, the non-breaching Party
(if MFN) will have the right to deny access by Carrier to the Product or Network
and (if either Party) to terminate this Agreement by written notice following
the expiration of any periods of time included in the following, such
termination to be effective in the on the date set forth in the written notice
of termination:
(a) If Carrier terminates any Product Order at any time before the
expiration of the Lease Term (whether before or after the Turnover Date) or
fails to make any payment hereunder within five (5) days or receipt of written
notice of late payment from MFN, MFN will have the right to terminate this
Agreement and deny access by Carrier to the Product or Network immediately
without further notice to Carrier.
(b) If a Party breaches any material term or condition of this
Agreement and such breach remains uncured thirty (30) days after delivery to the
breaching Party of written notice of such breach, unless the breach is of a
nature or involves circumstances requiring more than thirty (30) days to cure,
the time period may be extended for such time as will be reasonably required,
provided the defaulting party proceeds diligently to cure the breach.
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(c) A Party applies for or consents to the appointment of a receiver,
trustee or similar officer for it or any substantial part of its property or
assets, or any such appointment is made without such application or consent by
such Party and remains undischarged for a period of sixty (60) days; or
(d) A Party consents to the institution of a petition, application,
answer, consent, default of otherwise of any bankruptcy, insolvency or
reorganization and any such proceeding as instituted against such Party remains
undischarged for a period of sixty (60) days.
11.2 If any Authorization is modified, terminated or discontinued and not
replaced as provided in Section 5.2 of these General Terms and Conditions, and
MFN has not notified Carrier in writing within sixty (60) days after the
occurrence of such modification, termination or discontinuance that MFN will
provide additional or substitute Product or capacity as provided in Section
5.2, then and thereafter either party has the right, exercisable in its sole
discretion, to terminate the Product Order with respect to the affected Product
upon thirty (30) days prior written notice (or such other notice as is
practicable under the circumstances) without liability whatsoever by either
Party to the other Party or any party claiming by, through or under such other
Party other than the return to Carrier, of the unamortized portion of any
Prepaid Lease Payment as of the date of such termination as provided in Section
5.2.
11.4 Neither Party will be in breach of this Agreement resulting from
delay or prevention of performance of such Party which is caused by any act
attributable to an occurrence or an event of "Force Majeure" as defined herein.
Neither Party will, however, be relieved of liability for failure of
performance due to a claimed Force Majeure hereunder if such failure is due to
causes arising out of its own negligence or to removable or remedial causes
that it fails to remove or remedy using commercially reasonable efforts and
within a reasonable period of time.
11.5 The term "Force Majeure" will mean any cause beyond the control of
Carrier (of MFN, as applicable) which, by the exercise of due foresight,
Carrier (or MFN) could not reasonably have been expected to avoid, and which by
the exercise of reasonable diligence, Carrier (or MFN) will be unable to
overcome, including but no limited to action by governmental authority
including without limitation moratorium on any activities related to this
Agreement, third party labor dispute, flood, earthquake, fire, lightning,
epidemic war, riot, civil disturbance, sabotage and the like. The party
affected by an event of Force Majeure (the "Affected Party") will notify the
other party (the "Other Party") promptly of any occurrence or condition which,
in the Affected Party's reasonable opinion, warrants an extension of time. Such
notice will specify in detail the anticipated length of delay, the cause of the
delay and a timetable by which any remedial measures will be implemented.
12. ASSIGNMENT; SUCCESSION
12.1 Carrier will not assign any right nor delegate any duty under this
Agreement, in whole or in part, whether by operation of law or otherwise,
without the prior written consent of MFN. Upon any permitted assignment (or
delegation) hereunder, Carrier will remain jointly and severally responsible
for the performance under this Agreement, unless released in writing by MFN.
Any permitted assignee will expressly assume all liabilities hereunder prior to
the effectiveness of such assignment. Any attempted assignment or delegation
without such consent will be null and void and may be deemed by MFN, in its
sole discretion, to constitute a material breach of this Agreement.
12.2 This Agreement and Product Order will be binding upon and inure to
the benefit of the Parties hereto and their respective successors and permitted
assigns.
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13. GOVERNING LAW
13.1 THIS AGREEMENT WILL BE INTERPRETED AND CONSTRUED IN ACCORDANCE WITH THE
INTERNAL LAWS OF THE STATE OF NEW YORK WITHOUT GIVING EFFECT TO ITS PRINCIPLES
OF CONFLICTS OF LAWS.
14. SURVIVAL
The Parties' respective representation, warranties, and covenants, together
with obligations of indemnification, confidentiality and limitations on
liability will survive the expiration, termination or rescission of this
Agreement and continue in full force and effect.
15. ENTIRE AGREEMENT
This Agreement, Product Order, Exhibits and all addenda attached hereto
constitute the entire agreement between the parties hereto with respect to the
subject matter hereof and supersede any and all prior negotiations,
understandings, and agreement with respect hereto, whether oral or written.
16. REMEDIES CUMULATIVE
Except as otherwise expressly provided, the rights and remedies set forth
in this Agreement will be in addition to, and cumulative of, all other rights
and remedies at law or in equity.
17. REPRESENTATIONS, WARRANTIES AND COVENANTS
Each Party represents, warrants and covenants to the other that (a) it is a
corporation, limited liability company, partnership, or other legal entity,
duly organized, validly existing and in good standing under the laws of the
state of its organization, (b) it has all requisite power and authority to
enter into and perform its obligations under this Agreement and Product Order
and (c) this Agreement, when executed, will become the legal, valid and binding
obligation of such Party.
18. MISCELLANEOUS
18.1 The covenants, undertakings, and agreements set forth in this Agreement
will be solely for the benefit of and will be enforceable only by the Parties
hereto or their respective successors or permitted assigns.
18.2 The headings of the Sections in this Agreement are strictly for
convenience and will not in any way be construed as amplifying or limiting any
of the terms, provisions or conditions thereof.
18.3 In the event any term of this Agreement will be held valid, illegal or
unenforceable, in whole or in part, neither the validity of the remaining part
of such term nor the validity of the remaining terms of this Agreement will be
in any way affected thereby.
18.4 This Agreement may be amended only by a written instrument executed by the
Parties.
18.5 No failure to exercise and no delay in exercising, on the part of either
Party hereunder, any right, power or privilege hereunder will operate as a
waiver hereof, except as expressly provided herein.
18.6 This Agreement may be executed in multiple counterparts, each of which
will constitute one and the same instrument.
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AboveNet Communications, Inc.
By: /s/ XXXX XXXX
---------------------------------
Name: Xxxx Xxxx
Title: CTO
METROMEDIA FIBER NETWORK SERVICES, INC.
By: /s/ XXXXXX X. XXXXXXXXXXX
---------------------------------
Name: Xxxxxx X. Xxxxxxxxxxx
Title: President
