Exhibit 10.2
CO-LOCATION AGREEMENT
This Co-Location Agreement (the "Agreement") is made and entered into as of the
May 15, 2003
between
Cyberluck Curacao N.V. ("Cyberluck') a corporation organized and existing under
the laws of the Netherlands Antilles, located at UTS building, Heelsumstraat
z/n., Curacao, Netherlands Antilles,
and
IGW Software, NV, a corporation organized and existing under the laws of the
Netherlands Antilles, registered under number 76263 at the Chamber of Commerce
and located at Schottegatweg Oost 10 Suite # 12 Curacao, Netherlands Antilles
and in this agreement referred to as ("Co-locator"),
(Cyberluck and Co-locator arc hereinafter referred to as the "Parties",
collectivelv. or "Party" individually),
RECITALS:
WHEREAS. Cyberluck co-manages the Co-location Center (as defined below) located
at Heelsumstraat z/n, Vredenberg, Curacao Netherlands Antilles;
WHEREAS, The Co-location Center serves as an inter-connection point of several
international marine fiber optic cable systems;
WHEREAS, Co-locator has requested Co-location Space (as defined below), Services
(as defined below) and a right to use the Parking Area (as defined below);
WHEREAS, Cyberluck is willing and able to provide the Co-location Space and
Services to Co-locator at the Co-location Center:
WHEREAS, e-PowerHouse (as defined below) has granted Cyberluck the right to use
the Parking Area and Cyberluck is willing and able to provide the right to use
the Parking Area:
THEREFORE, in consideration of the mutual covenants herein contained, the
Parties agree as follows:
1. DEFINITIONS
The underlined terms set forth below have the following meanings in this
Agreement:
Access Route means the footpath to and from the Co-location Center and the
Parking Area.
Agreement means this Agreement and all exhibits and schedules attached hereto,
as the same may be supplemented or amended in writing by the Parties from time
to time.
Affiliate means any company or other entity directly or indirectly controlled
bycontrolling, or under common control of either Co-locator or Cyberluck.
Capacity means the telecommunications bandwidth capacity assigned or to be
assigned. or to which connectivity is provided, to a co-locator at the
Co-location Center.
Co-location Space means the 10' x 10' space caged on all sides in the Server
Hosting Room in the Co-location Center made available for Co-locator.
Co-location Center means the land, buildings, equipment, utilities, and all
improvements controlled by e-PowerHouse and/or Cyberluck located at former
transmission station located at Vredenberg, Curacao, Netherlands Antilles.
Co-locator Clients means the companies which the Co-locator services in either
its hosting or licensing products or services.
Co-locator Equipment means the Co-locator's owned or leased transmission
equipment, circuit boards, electronic cards, optical or electrical distribution
panels, cabling, and other personal property permitted to be installed within
the Co-location Center.
Co-locator Personnel means the officers, directors, employees, agents,
contractors, subcontractors and suppliers of Co-locator or any of the Co-locator
Affiliates. Co-locator personnel must be designated and registered by_
e-PowerHouse security through Cyberluck.
Common Area means those areas of the Co-location Center to which Co-locator
shall have access, including, but not limited to, the following: Access Route,
lobbies, kitchenette, corridors and restrooms.
Effective Date means the date this Agreement becomes effective, which shall be
the date on which the Agreement is fully executed by the Parties.
e-PowerHouse means International Data Gateway N.V. ("IDG"), a 100% subsidiary
company of United Telecommunication Services N.V. ("UTS") and doing business
under the trade name e-PowerHouse. being the owner of the building in which the
Co-location Center is located,
E-Zone License means an a-zone license under the local E-Zone Law (National
Gazette, No.18).
HVAC means the Heating Ventilation & Air Conditioning system deployed within the
Co-location Center.
Interconnection Cables means the cables provided by e-PowerHouse and/or
Cyberluck that connect the Transmission Equipment Room to the private room, or
Server Hosting Room.
Lease means the lease as defined in Article 3 of this Agreement.
Parking Area means the common parking area at the Co-location Center to be used
by Co-locator as designated by Cyberluck from time to time.
Parking Area License means the license granted by Cyberluck to Co-locator to use
the Parking Area.
Proprietary Information means the proprietary information as defined in Article
16 of this Agreement.
Server Hosting Room means the area in the Co-location Center where the
Co-location Space. Interconnection Cables and HVAC are located.
Services means the services provided by Cyberluck under this Agreement as set
forth in Schedule A , Schedule B and Schedule C in adherence with the Service
Level Agreement.
Target Completion Date means the date the Co-location Space is made available to
Colocator or July 15. 2003, whichever comes first.
Telecommunications Services means transmission of voice/data communications,
satellite uplink and downlink transmission, and fiber-optic transmission
systems.
Tenn means the term as defined in Article 7 of this Agreement.
Transmission Equipment Room means that portion of the Co-location Center in
which the transmission equipment and fiber distribution reside in support,
including distribution, of bandwidth via coaxial cable for Co-locator.
UTS and Cyberluck Personnel means the officers, directors, employees, agents,
contractors, sub-contractors and suppliers of UTS and or Cyberluck or of any of
its affiliates.
2. LEASE
Cyberluck (as lessor) hereby leases (verhuurt) to Co-locator (as lessee), who
accepts to lease (huurt) the Co-location Space.
3. SERVICES
Cyberluck hereby undertakes to provide during the Term the Services to
Co-locator under the terms and conditions as set out in this Agreement, and such
further services as Parties may agree from time to time in writing.
4. PARKING AREA LICENSE
4.1 Cyberluck hereby grants to Co-locator the non-exclusiye and non-transferable
Parking Area License on the condition that Co-locator Personnel may only use the
Parking Area while maintenance and/or operations are being performed by
Co-locator Personnel.
4.2 Under no circumstances shall the Parking Area be used for overnight parking
or for vehicle storage. provided, however, that Co-locator Personnel engaged in
maintenance and/or operations overnight may, during such maintenance and/or
operations. park overnight in the Parking Area the vehicle or vehicles used to
transport them to the Colocation Space for such maintenance and/or operations.
Use of the Parking Area by Colocator Personnel is subject to reasonable
Co-location Center regulations. Cyberluck may therefore at any moment in
consultation with Co-locator change the regulations regarding the Parking Area
License.
5. PERMITTED USE
5.1 The Co-Location Space is leased and the Parking Area License is granted on
condition that Co-locator uses them only for purposes related to the operations
or technical control of the Capacity or for the purpose of installing,
maintaining, operating, repairing, or removing equipment necessary for such
operation or technical control of Co-locator's Equipment.
5.2 Co-locator shall only with the prior written consent from Cyberluck install,
or cause to be installed any equipment in the Co-location Center including, but
not limited to, the following: tower, ATM Switch, IP Router or Digital Cross
Connect equipment in the Colocation Center.
6. E-ZONE LICENSE
6.1 To benefit from the government issued 'tax regime', Co-locator must have an
E-zone License under the local E-Zone Law (National Gazette. No.18).
6.2 In case Co-locator does not apply for the E-zone License or is not granted
such license, Cyberluck has the obligation to notify this to the authorities
concerned. Cyberluck will only omit tax charges for their services after
Co-locator has submitted to Cyberluck a copy of the E-zone License, as granted
by the local government agency.
6.3 Co-locator is solely responsible for maintaining his a-zone status. If
Co-locator fails to comply with the local E-zone Law, all tax will be levied for
all services, as applicable for non a-zone companies.
6.4 Cyberluck shall at the request of Co-locator provide all documents and other
information necessary to enable Co-locator to obtain and maintain its E-zone
License.
6.5 The e-zone license applies to Co-locator and Co-locator Clients who apply
and are accepted in the same manner as described in Sections 6.1 - 6.4.
7. TERM OF AGREEMENT
7.1 The term of this Agreement will commence on the Effective Date and shall
continue for an initial period of 3 (three) years, and shall automatically renew
for subsequent periods of 1(one) year unless terminated by either Party not less
than 60 days prior to expiration of the current period of("Term"). If this
Agreement is terminated earlier under any provision of this Agreement or by
applicable law. the Term shall be deemed to end on the effective date of such
termination.
7.2 Upon the event of a default as defined in Article 20 of this Agreement, the
party not in default shall have the right to terminate this Agreement as
provided for therein.
8. LIMITATION OF RIGHTS
Except for the Parking Area License expressly granted herein, this Agreement
does not create or vest in Co-locator any other property right or interest,
including ownership or easement interest in any part of the Co-location Center
or the improvements thereon.
8.1 No recording This Agreement shall not be recorded in any applicable
government recording office or land records department, until required by the
local law.
8.2 Cross-Connect/Interconnect The Co-locator may not (re-) sell its Capacity
locally for use in Curacao, nor may Co-locator utilize the Co-location Center
for the provision of any Telecommunications Services. The foregoing prohibitions
shall not prevent Co-locator from providing hosting services to others.
9. FEES AND CHARGES
9.1 Monthly Recurring Charges (MRC)
a. Commencing on the Target Completion Date, Co-locator shall pay
to Cyberluck in advance the monthly recurring charge ('MRC")
of 30.00 USD per square meter for office space, 2,787.00 USD
per caged rack space 10' x l0', and 500.00 USD per rack in the
cage and all other charges set forth in Schedule C. If the
Target Completion Date is a day other than the first day of
the month, the MRC shall be prorated. The MRC set forth in
Schedule C is fixed.
b. Co-locator will not be required to pay Cyberluck for any
testing if the testing request arises from transmission
problem and such problem is attributable to a failure in any
equipment or system component between the
multiplexing/transmission equipment in the Co-location Center
and leads to major disturbance in the co-locator activities.
c. In the event Co-locator requests a change, rearrangement or
disconnection of circuits in the Interconnection Cables if
available or possible, Co-locator will pay Cyberluck
non-recurring charge as offered on request of the Co-locator.
9.2 Other Costs If, at any_ time during the term of this Agreement, Co-Locator
requests Cyberluck to provide services or equipment not delineated herein or in
the attached Schedules. CoLocator agrees to pay to Cyberluck costs for such
services or equipment provided a quotation is provided in advance of the work
performed.
9.3 Payment Requirements Co-locator shall pay the charges imposed upon
Co-locator within 30 (thirty) calendar days after the date of invoice. Cyberluck
will render all invoices under this Agreement in U.S. dollars, and Co-locator
shall pay all invoices in immediately available funds. All charges shall be due
and payable without abatement, deduction, counterclaim or set-off, commencing on
the Target Completion Date and on the first day of each month thereafter.
9.4 All amounts due to Cyberluck shall be remitted to Cyberluck at the address
for payments designated on the bill or invoice or, in the absence of such
designation. to:
Cyberluck Curacao N.V.
Pletterijweg Oost 1, Ara Hill Top,
Suite A-4, Curacao,
Netherlands Antilles
Cyberluck shall send its invoices to:
IGW Software
501 Brickell Key Dr. Suite 603
Miami, FL 33131
9.5 If Co-locator fails to pay any invoice within 30 (thirty) days after the
date of invoice. Colocator will accrue extended payment interest at the rate of
1.5% per month. Such extended payment interest will accrue from the day
following the date on which payment is due, until the date payment is received
by Cyberluck. All invoices are deemed as correct if not disputed in writing
within 15 (fifteen) days of receipt. Cyberluck will include the extended payment
interest in a subsequent invoice.
9.6 Payment Security
a. Cyberluck requires a security deposit of $35,000 payable
before the Target Completion Date. Cyberluck may request
additional security if Co-locator fails to make timely
payments in accordance with this Article.
b. In the event of Co-locator's breach or failure to pay amounts
due under this Agreement, Cyberluck may draw upon the
security, and Co-locator shall, within 15 (fifteen) days
following notice of Cyberluck's draw, replenish the security
to the amount as set forth under a. above.
9.7 Survival of Monetary Obligations If there are any outstanding monetary
obligations of Co-locator under this Agreement attributable to the period prior
to the expiration or termination of this Agreement, such obligations shall
survive the termination or expiration of this Agreement and such amount(s) shall
be payable to Cyberluck within 30 (thirty) days after receipt of notice from
Cyberluck.
9.8 Abandonment Neither Co-locator's abandonment nor vacation of the Co-location
Space in violation of this Agreement shall relieve or reduce Co-locator's
liability to Cyberluck, including, without limitation, liability for payments or
charges due hereunder.
9.9 Future Cost Reductions Cyberluck agrees to review its bandwidth costs of
Co-locator from time to time with the possibility of providing a discount if the
price of Cyberluck's bandwidth has decreased significantly. That is, if the cost
of Cyberluck's bandwidth diminishes significantly, Cyberluck may provide similar
discounts to Co-locator provided Co-locator does not diminish the level of
Services presently provided under this Agreement.
10. CO-LOCATION SPACE, INSTALLATION, SERVICES, ACCESS
10.1 Installation and Co-location Space Preparation
a. Cyberluck shall prepare Co-Location Space as indicated by
Co-locator.
b. Designated Cyberluck Personnel, UTS Personnel and Co-locator
Personnel shall have keys to access Co-location Space. UTS and
Cyberluck Personnel will only unlock and enter the Co-location
Space with the prior permission of Co-locator when necessary
for testing or to determine compliance with Agreement in
accordance with Article 12 (Inspection), provided that UTS
and/or Cyberluck Personnel may enter Co-location Space without
Co-locator's permission in the event of an emergency or
required by Law. In this case, Cyberluck Personnel and UTS
Personnel agree to provide a written report immediately
thereafter as to the reason for entrance into Colocator's
space.
c. Cyberluck shall have the Co-location Space prepared for
installation of Co-locator Equipment. The network setup fee is
provided in Schedule C. Preparation will include, as required,
Cyberluck staff engineering, provisioning, installation, and
testing of all necessary equipment and to support Co-locator
Equipment. Any request to modify the Co-location Space, such
as the placing of a wire mesh roof, is subject to Cyberluck
receiving consent from e-PowerHouse. Upon prior notification
as to costs if any, Co-locator shall be responsible for the
payment to Cyberluck for material and labor. Cyberluck shall
use its best efforts to complete such preparation by the
Target Completion Date.
d. Cyberluck shall have the right to monitor all installation
work at the Co-location Center including but not limited to:
permitting, regulatory, safety, use, scheduling, and other
areas of concern. Co-locator shall submit to Cyberluck (i) any
and all plans (including, without limitation, site plans and
specifications) and time schedules for the installation of
Co-locator Equipment and (ii) the proposed physical layout of
Colocator Equipment. Cyberluck shall approve plans or notify
Co-locator of any objections not later than 15 (fifteen) days
following receipt of Co-locator plans. If installation of
Co-locator Equipment occurs in violation of approved plans or
in a manner not reflected in such plans, then, upon discovery
of such, Cyberluck may object to such installation of
equipment, and Co-locator shall modify the equipment or the
installation of the equipment as requested by Cyberluck within
15 (fifteen) days of such notification by Cyberluck.
This Article 10.1 applies both to initial installation and to any
reconfiguration of Colocator Equipment at the Co-location Center. Cyberluck and
Co-locator shall jointly develop a schedule for all activities relating to
installation that requires joint participation by Cyberluck and Co-locator, and
such schedule shall include installation procedures and initial testing of the
Interconnection Cables. Cyberluck
does not undertake any liability with respect to its approval of any Co-locator
plans, specifications and installation and testing schedules.
10.2 Alterations to Co-location Space or Co-location Center
a. Cyberluck shall promptly inform Co-locator of any maintenance
to be performed by Cyberluck or e-Powerhouse and Co-locator
may have personnel present to observe any maintenance
performed by Cyberluck. "Promptly" means at least 24 hours
advance notice if there is potential to cause downtime, or in
the case of an emergency, Cyberluck will inform Co-locator
immediately. Co-locator will maintain the Co-location Space in
a reasonable non-discriminatory manner.
b. Cyberluck shall have the right to monitor all material
improvements, alterations or modifications to be made to the
Co-location Space unless previously approved in writing by
Cyberluck ("Material Improvements"). Co-locator covenants and
agrees that its use of the Co-location Space shall not
unreasonably interfere with Cyberluck's use of the Co-location
Center or any other tenants' use of the Colocation Center.
c. If, in the course of installation or maintenance, Co-locator
damages or interferes with the Capacity or Interconnection
Cables or equipment of another Co-locator, Colocator will be
responsible for the costs of repair or restoration. Cyberluck
will perform any work necessary to restore Capacity or repair
Interconnection Cable and will bill back to Co-Locator
Cyberluck's Costs for such work.
10.3 Necessary Authorizations Co-locator represents and warrants to Cyberluck
that it has obtained or will obtain, at Colocator's sole cost and expense and
prior to the installation of any of Co-locator Equipment, from all applicable
public and/or private authorities, all leases, authorizations, licenses,
permits, rights of way and easements necessary to install and operate
Co-locator's Equipment within the Co-location Space (collectively the
"Authorizations"). Co-locator further warrants and represents that it will
maintain all such Authorizations throughout the term of this Agreement. Copies
of such Authorizations will be provided to Cyberluck upon demand.
Cyberluck covenants and agrees that it shall provide Co-locator with all
reasonably required assistance in order to obtain and maintain the
Authorizations.
11. PROTECTING OF THE CO-LOCATION CENTER
11.1 Co-locator agrees not to damage, overload, deface or commit waste to any
part of the Colocation Center and/or surrounding properties. Co-locator shall be
responsible for all damage of any kind or character to anv part of the
Co-location Center caused by Colocator or Co-locator Personnel or by anyone
authorized by Co-locator to enter any part of the Co-location Center. Co-locator
and the Co-locator Personnel, and anyone authorized by Co-locator to enter any
part of the Co-location center, shall exercise reasonable care in performing any
work or operating any equipment, so as to protect all Cyberluck's structures,
equipment and utilities against damage or interruption of servic Co-locator
shall comply with all safety standards issued by Cyberluck.
11.2 If Co-locator or Co-locator Personnel, or anyone authorized by Co-locator
to enter theCo-location Center by act or omission causes damage to any part of
the Co-location Center, or any property in or around the Co-location Center,
Cyberluck may restore such property at Co-locator's sole cost and expense.
Cyberluck will issue an itemized invoice for its costs of such restoration.
11.3 Cyberluck agrees not to damage, overload, deface or commit waste of any
part of the Colocation Space. Cyberluck shall be responsible for all damage of
any kind or character to any part of the Co-location Space caused by Cyberluck
or Cyberluck's Personnel or by anyone authorized by Cyberluck to enter any part
of the Co-location Space. Cyberluck's Personnel, and anyone authorized by
Cyberluck to enter any part of the Co-location Space, shall exercise reasonable
care in performing any work or operating any equipment, so as to protect all
Co-locator structures, equipment and utilities against damage or interruption of
service.
11.4 Co-locator shall not do or permit anything to be done in the Co-location
Center by any Affiliate, personnel, or any other person authorized by Co-locator
to enter the Co-location Center, that will in any way conflict with any
Netherlands Antilles law, statue, ordinance or governmental rule, order,
regulation or requirement now in force or that is hereafter enacted or
promulgated, or that would create a nuisance, or that would constitute a breach
of the peace, or that would interfere in any way with activities of Cyberluck
and other colocators terminating at the Co-location Center, or their respective
personnel. In case either Co-locator fails or neglects to comply with any laws,
statutes, ordinances, rules, orders, regulations, or requirements, or fails or
neglects to cure a nuisance, breach of the peace or interference, then Cyberluck
may, after 10 (ten) days prior written notice or such shorter period as may be
required under applicable law, take such actions as are necessary (including, to
the extent necessary, entry into any part of any of the Co-location Space) to
comply with any and all of the said laws, statutes, ordinances, rules, orders,
regulations or requirements, and to cure such nuisance, breach of peace, or
interference at the Co-locator's sole cost and expense: provided, however, that
no notice shall be required for emergency actions, which must be taken
immediately, or for actions which must be taken expeditiously to meet legal
requirements or to avoid criminal or civil liability. In non-emergency cases,
notwithstanding anything in this paragraph to the contrary, if the Co-locator is
proceeding diligently to cure any violation or conflict with any laws, statutes,
ordinances, governmental rule, order, regulation or requirement but curative
action cannot be completed, within the 10 (ten) day period or such shorter
period, the period necessary to complete such curative action shall be extended
for such times as is reasonably necessary to assure completion. Co-locator shall
provide Cyberluck with a telephone number where Co-locator can be reached
twenty-four hours a day, seven days a week, to be informed of an emergency.
Co-locator shall cooperate with Cyberluck in the defense of any proceeding, and
shall indemnify and hold Cyberluck (and its Affiliates and personnel) harmless
from and against any cost (including without limitation reasonable attorneys
fees), penalty, fine, claim, or liability in connection with any violation by
Co-locator of the aforementioned laws, statutes, ordinance, rules. orders.
regulations or requirements. These provisions are in addition to Cyberluck's
rights under Article 18 to terminate this Agreement.
11.5 Co-locator shall, at its sole cost and expense, handle and dispose of all
rubbish, garbage and waste in connection with Co-locator's operations in the
Co-location Space in accordance with reasonable criteria established by
Cyberluck from time to time, in order to keep the Co-location Center, including
the Co-location Space, in an orderly and safe
condition, and in accordance with all governmental requirements. Cyberluck will
require other users of the Co-location Center within its control to adhere to
the same criteria.
11.6 Co-locator shall, at its sole cost and expense, comply with the
regulations, requests and requirements provided to Co-locator by Cyberluck
related to any fire, liability, or other insurance carrier providing insurance
for the Co-location Center or any part thereof or improvements thereon or of the
local fire authorities in connection with its use of the Colocation Center, the
Access Route, the Parking Area, and the ground under which the Entrance Conduit
is installed to house the cabling elements that provide Co-locator Capacity. If
such regulations change, Cyberluck agrees to promptly provide Co-locator with a
copy of those changes.
11.7 Cyberluck shall have no obligation under this Agreement to police or
protect Co-locator transmission facilities, equipment or property (including
without limitation the Colocation Space) at the Co-location Center except as
provided in this Article 11.
12. INSPECTION
In addition to their other rights under this Agreement, Cyberluck, any of the
Cyberluck Personnel, and any Cyberluck's designee shall conduct during business
hours compliance and safety inspections of the Co-location Space after written
notice to Co-locator. Colocator Personnel may accompany Cyberluck during such
inspections except, when, in emergency situations, safety or service
considerations justify an inspection without delay, in which event Cyberluck
shall notify Co-locator of the inspection by calling the emergency telephone
number provided in this Article.
Written notice shall be directed to:
Cyberluck:
Cyberluck Curacao N.V.
Emergency Cellular telephone #1
Emergency Cellular telephone #2
Co-locator:
IGW Software
Emergency pager oncall(a_)
Emergency Cellular telephone #1
Emergency Cellular telephone #2
Emergency Cellular telephone #3
Emergency Cellular telephone #4
Nothing in this Article shall require Cyberluck to provide advance notice to
Co-locator. or to conduct inspections in the company of Co-locator Personnel, if
the inspection is required by building inspector, fire marshal, or other
governmental official who does not provide at least 3 (three) days' notice of
the inspection; provided however, that in the event of such inspection,
Cyberluck shall notify Co-locator of the inspection by calling the emergency
telephone number provided in this Article.
13. RELOCATION OF CO-LOCATION SPACE
Cyberluck shall not arbitrarily require Co-locator to relocate Co-locator Space
and Colocator Equipment; provided, however, upon 30 (thirty) days prior written
notice, or such lesser time as may be reasonable in the event of an emergency,
Cyberluck may require Co-locator to relocate Co-locator's Equipment to a new
building or new room at the Colocation Center which shall afford comparable
environmental conditions for Co-locator Equipment and comparable accessibility
to Co-locator Equipment.
Prior to the relocation of Co-locator Equipment, Cyberluck shall prepare, at
Cyberluck's sole cost and expense, the new Co-location Space to which Co-locator
Equipment will be relocated. Co-locator shall be responsible for relocating and
installing Co-locator Equipment in the new Co-location Space, and the Parties
shall share equally the cost and expense thereof. Cyberluck and Co-locator shall
work together in good faith to minimize any disruption of service that might be
associated with a relocation of Co-locator Equipment.
14. RESTORATION OF CO-LOCATION SPACE AND OTHER AREAS
14.1 Upon the expiration of or termination of this Agreement, Co-locator shall
promptly and solely at its own cost and expense:
a. remove any equipment or other property installed by or on behalf of
Co-locator in the Co-location Space; and
b. at Cyberluck's request, substantially restore the Co-location Space to
its original condition, with normal wear and tear excepted, acts of God
and damages for which Cyberluck is fully reimbursed by insurance,
excepted.
14.2 If Co-locator fails to perform any of the obligations specified in 14.1
within 30 (thirty) days of expiration or termination of this Agreement,
Cyberluck may perform such work at Co-locator's sole cost and expense upon 7
(seven) days prior written notice of its intent to perform such work, Cyberluck
berluck shall issue an itemized invoice of Cyberluck's Costs, and Co-locator
shall pay such invoice within 30 (thirty) calendar days after the invoice is
issued by Cyberluck.
14.3 In addition to the remedies in 14.2, if Co-locator fails to perform the
obligations specified in 14.1 within 30 (thirty) days after expiration or
termination of this Agreement, and provided Cyberluck gives Co-locator 30
(thirty) days prior written notice, Cyberluck may elect at its option:
a. to take ownership of any or all equipment and other property
remaining in the Colocation Space, in which case such
equipment and other property of which Cyberluck takes
ownership shall be deemed conveyed to Cyberluck, and shall
become the property of Cyberluck, free of any ownership
interest or lien of any kind by Co-locator; or
b. to treat the equipment and any or all other property as
abandoned by Co-locator.
In either event, Cyberluck may retain all other property. or at Co-locator's
sole cost and expense and without further notice, Cyberluck may remove and
dispose of all other property, and restore the leased real property areas to
their original condition. Any indebtedness by Co-locator to Cyberluck under this
Agreement shall be reduced by the fair market salvage value, if any, of any
property which Cyberluck retains or of whi Cyberluck takes ownership pursuant to
this Article, and shall be increased by Cvberluck's Costs of removing,
transferring and/or disposing of property retained by Cyberluck or abandoned by
Co-locator.
14.4 If Cyberluck takes ownership of any property as permitted by this Article.
Co-locator shall give such further assurances as Cyberluck may reasonably
require, including but not limited to the execution of bills of conveyance or
other instruments as reasonably necessary to carry out the intent of this
Article.
14.5 Co-locator shall not remove the Interconnection Cables, tie cables and any
associated equipment, maintenance order wire, spare circuits or entrance conduit
used by Cyberluck to provide the Services under this Agreement. The
Interconnection Cables, tie cables and any associated equipment, maintenance
order wire, spare circuits and entrance conduit used by Cyberluck to provide the
Services under this Agreement are deemed and understood to be the property of
Cyberluck during the Term, and after the expiration or termination of this
Agreement.
14.6 Cyberluck reserves the right to charge Co-locator, pro-rata, to repair
and/or renovate the Co- location Space to the extent such repair or renovation
is not covered by applicable insurance.
15. LIEN
Co-locator shall not cause or permit the property of Cyberluck and Cyberluck's
Affiliates to become subject to any lien, trust, pledge or security interest
arising out of any work performed, facilities or materials furnished, or
obligations incurred by or for Co-locator. Nothing in this Article shall limit
either Party's right to subject its own property and equipment to liens, trusts,
pledges or security interests. In the event Co-locator causes Cyberluck to incur
any costs or expenses as a result of any lien, trust, pledge, or security
interest arising out of non-compliance with this Article, then Co-locator shall
indemnify Cvberluck for all such costs and expenses, including without
limitation. Cyberluck attorney's fees and claimant's attorney's fees, within 30
(thirty) days of receipt of an itemized invoice and shall execute (and, to the
extent necessary, record, at its own expense) all instruments reasonably
required and provided by Co-locator to clear from Co-locator's title any
leasehold interest, license, or other possessory or nonpossessor_y estate, right
or interest that Co-locator might have or claim under this Agreement.
16. PROPRIETARY INFORMATION
16.1 Proprietary Information is defined as information pertaining to business
plans, licensing agreements, network configuration, traffic volume, financial
information, service or planned service, current or planned activities,
specifications, designs, plans, drawings, software, data prototypes, processes,
methods, research, knowledge, development or other information relating to each
Party_ *s business activities or operations or to those of its customers or
suppliers that:
a. is marked proprietary or confidential, or bears a marking of
like import;
b. the disclosing Party states to be proprietary or confidential:
or would logically be considered proprietary or confidential
under circumstances of its disclosure to the receiving Party.
16.2 Proprietary Information that is delivered or disclosed to the other Party
will:
a. be held in confidence by the receiving Party;
b. be disclosed only to those employees or authorized
representatives on a need-toknow basis; and
c. be used only in fulfillment of the receiving Party's
obligations under this Agreement.
16.3 Neither Party will be liable for the disclosure or such Proprietary
Information that:
a. is, or becomes, publicly known, other than by breach of this
Agreement.
b. is obtained by the receiving Party from a third party without
restriction,
c. is previously known by the receiving Party without
confidentiality restriction:
d. is, at any time, developed by the receiving Party completely
independent of any disclosures hereunder; or
e. is required to be released by law.
16.4 All Proprietary Information in whatever form disclosed will be promptly
returned by the receiving Party to the disclosing Party upon written request by
the disclosing Party.
16.5 Each Party will keep the terms and pricing of this Agreement confidential,
provided that (i) Cyberluck and its Affiliates may publicly disclose that
Co-locator is co-located in the Co-location Center after 90 (ninety) days have
transpired from this Agreement's execution, and (ii) Cyberluck may disclose the
terms and pricing of this Agreement to its investors and financial institutions
providing financing to Cyberluck. Each Party will preserve the other Party's
Proprietary Information with the same degree of care used in protecting its own
Proprietary Information.
16.6 The Parties hereby acknowledge that any Proprietary Information is
essential to the disclosing Party's continuing business and was developed by or
for the disclosing Party at significant cost. The Parties further acknowledge
that damages arising from wrongful disclosure of such Proprietary Information
cannot be calculated with reasonable certainty and that the disclosing Party may
obtain injunctive or other equitable relief to remedy or prevent any breach of
threatened breach of this Agreement. Such remedy will not be deemed exclusive
for any such breach of this paragraph, but will be in addition to any and all
other remedies available at law or in equity to the disclosing Party.
17. INSURANCE
Co-locator and Cyberluck shall at all times during the term of this Agreement
maintain not less than the following insurance:
17.1 "All Risk" or Fire/Extended Coverage including natural disaster and flood
Insurance covering not less than the full replacement cost of Co-locator's
Equipment.
17.2 Comprehensive General Liability Insurance naming Co-locator as the named
insured. Cyberluck shall be named as an additional insured for purposes of this
Agreement. The comprehensive general liability insurance policy cover liability
for injury to or death to persons or damage to property including, but not
limited to, work associated with this Agreement, including such liability as may
arise from the use of independent contractors, as well as any contractual
liability assumed under this Agreement.
Cyberluck and/or affiliates shall be named as additional insured for purposes of
this Agreement.
a. All the foregoing insurance shall be affected with financially
reputable insurers licensed to do business in all
jurisdictions where any work is performed and reasonably
acceptable to Cyberluck.
b. Foregoing insurance. The coverage for the comprehensive
general liability_ and property shall waive the insurer's
right of subrogation against Cyberluck.
17.3 All the foregoing insurances shall be endorsed to confirm it is primary to
any insurance that Co-locator may carry.
17.4 The limits specified herein are considered minimum requirements and shall
not be construed in anv way as limits of liability or as constituting acceptance
by Co-locator of such responsibility for financial liabilities in excess of such
limits. Co-locator shall bear all deductibles applicable to any insurance.
17.5 Co-locator shall require any of its contractors and sub-contractors to
maintain insurance in amounts and with such coverage equal to the requirements
of the Co-locator under this Agreement.
17.5.1 Co-locator shall report to Cyberluck or affiliates as soon as
practicable, within 24 hours, all accidents or occurrences resulting in injuries
to Co-locator Personnel or third parties, or damage to property of third
parties, arising out of or during the course of activities performed at the
Co-location Center.
17.6 The insurance requirements of this Article shall remain in place for the
Term of this Agreement. Certificates evidencing such insurance coverage shall be
submitted to Cyberluck (at the address below) no less than 10 (ten) days prior
to delivery of Colocator's Equipment to the Co-location Center. The certificates
shall certify that that the above insurances are in force and will not be
canceled or materially altered without first giving Cyberluck 30 (thirty) days
prior written notice. No such cancellation, modification or change shall affect
Co-locator's obligation to maintain the insurance coverage required by this
Agreement.
Certificates of insurance shall be mailed to:
Cyberluck Curacao N.V.
Pletterijweg Oost 1, Ara Hill Top
Suite A-4, Curacao, Netherlands Antilles
Fax: (5999)- 465-1136
and,
IGW Software
Schottegatweg Oost 10 Suite #12
Curacao, Netherlands Antilles
Fax: +1-305-373-4668
Co-locator hereby waives and releases Cyberluck its employees, and agents, from
all claims that may arise from any injuries to persons or damage to property and
Co-locator shall look solely to its own insurance for recovery with respect to
any such claims.
Cyberluck hereby waives and releases Co-locator its employees, and agents, from
all claims that may arise from any injuries to persons or damage to property and
Cyberluck shall look solely to its own insurance for recovery with respect to
any such claims.
18. INDEMNIFICATION
18.1 Co-locator will indemnify Cyberluck for damages, losses and expenses caused
bv:
a. any act or omission of Co-locator or Co-locator Personnel at
the Co-location Center or Co-locator Space, except to the
extent those are caused solely by the gross negligence or
willful misconduct of Cyberluck;
b. the failure of Co-locator to maintain or maintain in good
standing all Authorizations as provided in Article 10.3
hereof,
c. the negligence or willful misconduct of Co-locator, Co-locator
Personnel or anyone acting under Co-locator's direction or
control or on its behalf arising from Colocator's exercise of
its rights and responsibilities under this Agreement:
d. any third party claim, demand or suit for damage resulting
from any act or omission of Cyberluck that causes or
contributes to a failure of Co-locator's transmission
facilities that transit the Co-location Space: provided.
however, the foregoing indemnity shall not apply to third
party claims resulting from Cyberluck's gross negligence or
willful misconduct. Furthermore, Co-locator hereby waives any
claims that Co-locator may have against Cyberluck for damages
to Co-locator resulting from any act or omission of Cyberluck
that causes or contributes to a failure of Co-locator
Equipment, except damages resulting from Cyberluck's gross
negligence or willful misconduct:
18.2 Cyberluck will indemnify Co-locator for damages, losses and expenses caused
by:
a. any act or omission of Cyberluck or Cyberluck Personnel at the
Co-location Center or Co-locator Equipment, except to the
extent those are caused solely by the gross negligence or
willful misconduct of Co-locator;
b. the failure of Cyberluck to maintain or maintain in good
standing all Authorizations as provided in Article 10.3
hereof.
c. the negligence or willful misconduct of Cyberluck, Cyberluck
Personnel or anyone acting under Cyberluck's direction or
control or on its behalf arising from Cyberluck's exercise of
its rights and responsibilities under this Agreement:
d. any third party claim, demand or suit for damage resulting
from any act or omission of Co-locator that causes or
contributes to a failure of Cyberluck's transmission
facilities that transit the Co-location Space; provided,
however, the foregoing indemnity shall not apply to third
party claims resulting from Co-locator's gross negligence or
willful misconduct. Furthermore, Cyberluck hereby waives any
claims that Cyberluck may have against Co-locator for damages
to Cyberluck resulting from any act or omission of Co-locator
that causes or contributes to a failure of Cyberluck
Equipment, except damages resulting from Co-locator's gross
negligence or willful misconduct;
18.3 Moreover, should Co-locator Equipment become the subject of a claim of
infringement, Co-locator shall, at it's sole expense, as soon as is practicable,
either remove Co-locator Equipment or modify Co-locator Equipment to make it
non-infringing.
18.4 Parties shall promptly notify each other of any claims, losses, damage,
expense or liability arising under this Article.
18.5 The indemnification provisions in this Article shall survive the expiration
or termination of this Agreement.
19. NO THIRD PARTY BENEFICIARIES
This Agreement does not provide third parties with any remedy, claim, liability,
reimbursement, cause of action or other right.
20. DEFAULT AND TERMINATION
20.1 The occurrence of any, of the following shall constitute an "event of
default." and shall give the non-defaulting Party the right to terminate this
Agreement:
a. Co-locator's failure to pay any amounts due hereunder when
such amounts are due and such failure shall continue for 15
(fifteen) days after the date written notice is received by
Co-locator from Cyberluck.
b. Co-locator vacates or abandons the Co-location Space.
c. Co-locater fails to install and operate Co-locater Equipment
in the space within 180 (one hundred eighty) days after
Cyberluck makes the Co-location Space available to Co-locator.
d. The filing of a voluntary petition in bankruptcy, an
adjudication of bankruptcy or insolvency, the making of a
general assignment for the benefit of creditors, the filing of
a petition for liquidation, dissolution or similar arrangement
under any present or future statute, law or regulation, the
consenting to or acquiescence by a Party in the appointment of
a trustee, receiver, or liquidator of it, or of all or any
substantial part of its assets or properties, or the taking by
a Party's shareholders of any action looking to its
dissolution or liquidation.
e. The commencement of any proceedings against a Party seeking
liquidation, dissolution or similar relief under any present
or future statute, law or regulation, if such proceedings are
not dismissed within 60 (sixty) days after their commencement,
or appointment without a Party's consent or acquiescence of
any trustee, receiver, or liquidator of it, or of all or any
substantial part of its assets and properties, if such
appointment is not vacated within 60 (sixty) days after it is
made.
f. The failure of a Party to perform any of its obligations
(excluding Co-locator's monetary obligations) under this
Agreement for a period of 15 (fifteen) days after the date of
written notice from the other Partv.
g. 10 (ten) hours of consecutive down time in the Co-location
Space will allow Colocator to terminate this Agreement.
20.2 Upon 5 (five) days' written notice by Cyberluck of the termination of this
Agreement due to the occurrence of an event of default by Co-locator, Co-locator
shall be responsible for
60 (sixty) days MRC as a termination fee and shall thereafter immediately remove
the Co-locator Equipment from the Co-locator Space, and vacate the Co-location
Center.
20.3 Upon 5 (five) days' written notice by Co-locator of the termination of this
Agreement due to the occurrence of an event of default by Cyberluck. Cyberluck
shall provide 90 (ninety) days for Co-locator to vacate the Co-location Center;
60 (sixty) of the 90 (ninety) day will be free of charge as a termination fee.
20.4 Co-locator shall be responsible for any damages associated with removal of
the Co-locator Equipment, vacating the premises or otherwise. A Party's exercise
of any right or remedy shall not prevent it from exercising any other right or
remedy available at law, in equity or otherwise.
20.5 Notwithstanding the foregoing in this Article 20, Co-locator shall have the
right to terminate this Agreement upon four (4) months' written notice, for any
or for no reason.
21. CONDEMNATION
21.1 If Cyberluck receives notice that any competent public authority has
commenced condemnation or eminent domain proceedings against the Co-location
Center or any part thereof, Cyberluck shall promptly give Co-locator written
notice thereof. If any of the Co-location Space is appropriated or taken by
condemnation or eminent domain by any_ public or quasi-public authority, or is
conveyed by Cyberluck in lieu of condemnation or eminent domain, this Agreement
shall terminate as to the effective date of such appropriation, taking, or
conveyance.
Should the Co-location Space be condemned in whole or in part, taken by eminent
domain proceedings, or conveyed in lieu of condemnation or eminent domain, so as
to render the Co-location Space substantially unusable, Co-locator may terminate
this Agreement, as of the effective date of such taking, by giving Cyberluck
notice in writing not later than 30 (thirty) days after such date.
Any taking or appropriation by condemnation, eminent domain proceedings, or
conveyance in lieu of condemnation or eminent domain, shall be deemed to render
the Co-location Space substantially unusable if it results in Co-locator's
inability to use the Co-location Space in the manner and for the purpose
contemplated under this Agreement.
21.2 Co-locator shall not incur any future fees or charges under Article 4 for
any termination contemplated by this Article 21. Co-locator shall have the right
to retain any equipment that it installs in the Co-location Space, unless such
equipment is subject to the condemnation or eminent domain proceeding, in which
case Co-locator shall be entitled to receive any and all proceeds paid with
respect to such equipment.
21.3 Co-locator shall have the right to appear. claim. prove and receive any
award by the condemning authority for the value of Co-locator's leasehold
improvements, if any, and its leasehold estate, and for damages to, or
condemnation of, the Co-location Space, Colocator furniture, trade fixtures and
equipment and any reimbursement of Co-locator's cost in moving and relocating
such furniture, trade fixtures and equipment. ,
21.4 Upon partial condemnation of the Co-location Center or conveyance lieu
thereof that renders the Co-location Space substantially unusable, Cyberluck
shall exercise
commercially reasonable efforts to provide alternative space at the Co-location
Center upon which Co-locator may option to replace or relocate its equipment,
the expense of such a relocation would be equally split between the parties.
22. FORCE MAJEURE
Neither party shall be liable for any failure nor delay in performance to the
extent caused by causes beyond its reasonable control, including, without
limitation, labor disputes, fires or other casualties, weather or natural
disasters, damage to facilities, or the conduct of third parties.
23. ASSIGNMENT
23.1 Cyberluck shall have the right to assign this agreement to any of its
affiliated companies from time to time provided such transferee assumes in
writing all obligations under this agreement. Co-locator may not transfer or
assign its rights or obligations under this Agreement without the prior written
consent of Cyberluck, such consent not be unreasonably withheld.
23.2 With Cyberluck's prior written consent, Co-locator may assign its rights
and obligations under this Agreement to another company to which has been
assigned the entire interest of Co-locator. Such assignment of this Agreement
shall be subject to the following conditions:
a. Co-locator must submit to Cyberluck a written request
designating the entity to which this Agreement is to be
assigned (referred to in this Article as "Assignee").and
b. Assignee must provide insurance certificates as described in
Article 17, must agree in writing to be bound by this
Agreement and to assume all obligations of Co-locator as of
the effective date of the assignment (including without
limitation any outstanding indebtedness for fees, charges,
costs or expenses under this Agreement) and must certify that
all warranties or representations made by Co-locator in or
pursuant to this Agreement are true and complete as to
Assignee.
23.3 Assignment by Co-locator shall not relieve or discharge Co-locator for any
obligations existing as of the effective date of the assignment. Assignment by
Cyberluck shall not relieve or discharge Cyberluck for any obligations existing
as of the effective date of the assignment.
24. NO SIGNS
Co-locator shall not erect any exterior signs on or around the Co-location
Center, including without limitation signs on the exterior of the building.
25. SEVERABILITY
If any one or more of the provisions contained in this Agreement is for any
reason held to be unenforceable in any respect under applicable local law of
Netherlands Antilles, such enforceability shall not affect any other provision
of this Agreement, but this Agreement shall then be construed in such a way as
will achieve the intent of such enforceable provision or provisions to the
extent permitted by law.
26. CAPTIONS
Titles to Articles in this Agreement are used merely for convenience and shall
not be taken as an interpretation of the contents of those Articles, or as an
attempt to enlarge. limit or define terms covered by this Agreement.
27. SURVIVAL
The obligations of the Parties, which by their nature, continue beyond the terms
of this Agreement, shall survive the termination of this Agreement.
28. NO WAIVER
No course of dealing or failure of either Party strictly to enforce any term,
right or condition of this Agreement shall be construed as a waiver of such
term, right or condition.
29. AMENDMENTS
This Agreement may be modified or amended only by written agreement signed by
duly authorized representatives of both Parties, except that either Party_ , by
written notice to the other Party, may unilaterally modify its addresses for
receipt of notices, invoices and payments.
30. NOTICES
30.1 All notices required or permitted to be given or delivered under this
agreement shall be in writing (unless otherwise specifically provided herein)
and shall be addressed to:
Cyberluck Curacao N.V.
Pletterijweg Oost 1, Ara Hill
Top Suite A-4
Curacao, Netherlands Antilles
Attn: Managing Director
Co-locator:
IGW Software
c/o UTS Geubouw
Heelumstrat z/n
Vredenberg, Curacao
Netherlands Antilles
Fax: +1-305-373-4668
30.2 Except as otherwise provided in this agreement, any notice or other
communication shall be given in writing and sent by registered or certified
mail, postage prepaid, return receipt requested or by recognized overnight
delivery or by facsimile. Except as otherwise specifically provided, notices and
other communications shall be deemed given and received three days after the
date of mailing or, in the case of notices or other communications delivered in
person, when received at the recipient's designated address for notices. The
addresses for notice may be changed by giving written notice in accordance with
this Article.
31. NO PARTNERSHIP OR JOINT VENTURE
The relationship between the Parties to this Agreement shall not be that of
partners nor of joint ventures, and nothing contained in this Agreement shall be
deemed to constitute a partnership or joint venture between them. Neither Party
may represent to any third party that the other Party jointly participates with
such Party in the provision of services or facilities.
32. CHOICE OF LAW AND DISPUTE RESOLUTION
The law of the Netherlands Antilles shall govern this Agreement. Any disputes
arising hereunder shall be submitted to competent court in the Netherlands
Antilles.
33. SUCCESSORS AND ASSIGNS
This agreement is binding upon and shall inure to the benefit of the Parties and
their permitted successors and assigns.
34. SCHEDULES
All schedules attached to this Agreement are a part hereof and are incorporated
herein by reference.
35. ENTIRE AGREEMENT
This Agreement constitutes the entire agreement between the Parties with respect
to the subject matter hereof and supersedes any and all prior or contemporaneous
agreements, whether written or oral.
IN WITNESS WHEREOF, the Parties hereto have severally subscribed these presents
or caused them to be subscribed in their name and behalf by their respective
officers duly authorized.
Cyberluck Curacao, N.V. IGW Software
By: By:
Name: Annthony P. Mc.K. Dick Name: Bryan Abboud
Title: Attorney-in-fact Title: CEO
Date: 5/30/03 Date: 5/16/03