Capitalized terms used herein but not otherwise defined will have the meaning ascribed to them in Section 11 of these General Terms and Conditions. The terms “Unwired Broadband,” “Client,” “Agreement” and “Effective Date” shall be defined in the applicable master service agreement.
1. Term of Agreement. This Agreement will commence on the Effective Date and will terminate on the date the last Order then in effect expires or is terminated, or as otherwise expressly provided herein. If this Agreement is terminated while Orders are still in effect, then the Orders will automatically terminate.
2. Ordering and Provision of Services. Upon execution by Unwired Broadband and Client of this Agreement, Client may request specific Services from Unwired Broadband by placing Order(s). This Agreement and the Orders will govern Unwired Broadband’s provision of Services to Client and Client’s obligations to Unwired Broadband.
3. Access and Use of the Data Centers and Use of Client’s Equipment.
(a) Subject to terms and condition of this Agreement Client will have access to Licensed Space twenty four (24) hours per day, three hundred sixty-five (365) days per year.
(b) Client represents, warrants and covenants that it will comply with all applicable law and regulations in connection with the performance of its obligations and exercise of its rights under this Agreement, and that it had obtained and will maintain throughout the Term the legal right and authority (including regulatory consents) to operate, configure, provide, place, install, upgrade, add, maintain and repair Client’s Equipment as contemplated by this Agreement. Except as set forth in Section 4 (which is further limited by Section 5), Unwired Broadband will not have any responsibility for any loss or damage to Client’s Equipment.
(c) Client will be responsible and liable for all acts or omissions of Client’s Authorized Persons, Accompanying Persons, and Affiliates, and all such acts or omissions will be attributed to Client for all purposes under this Agreement, including for purposes of determining responsibility, liability and indemnification obligations.
(d) Client may sublicense the Sublicensed Space to Sublicensees provided the (i) the terms and conditions of such Sublicense will be no less restrictive than this Agreement; (ii) Client will not in its dealing with such Sublicensees act or purport to act on behalf of Unwired Broadband or landlords of Unwired Broadband; (iii) Client will require the Sublicensees to abide by the rules set forth in the Policies; (iv) the agreement between Client and Sublicensee will provide that Sublicensee has no right to sublicense, delegate, assign or otherwise transfer its right to use the Sublicensed Space to any other person or entity without Unwired Broadband’s written consent, which consent may be withheld for any reason whatsoever or no reason, and without such consent any such sublicense, delegation, assignment or transfer will be null and void; and (v) Client will cause all Sublicensees to agree in writing that in consideration for the sublicense, Sublicensees waive, to the maximum extent permitted under law, any and all claims of any and all types against Unwired Broadband and the landlords of Unwired Broadband, as may be applicable, at all times, and that in no event will Unwired Broadband, or landlords of Unwired Broadband, have any liability to such Sublicensees, including liability to such Sublicensees for any damages whatsoever, including direct damages.
(e) Under no circumstances shall Unwired Broadband be deemed to have any obligations to any Sublicensee. Sublicensees do not have any rights, separate and apart from Client’s rights, to access their Sublicensed Space. Accordingly, only Client’s Authorized Persons at a Data Center may access the Sublicensed Space of Sublicensees at such Data Center. Furthermore, Unwired Broadband is not responsible for restricting a Sublicensee’s access to Client’s Licensed Space located in a cage or suite to which Sublicensee has access. Client will remain responsible to Unwired Broadband for the performance of all of Client’s obligations under this Agreement (including the payment of all amounts owed under this Agreement) and all other agreements between Unwired Broadband and Client (“Related Agreements“).
(f) This Agreement, and the rights of Client hereunder, are, without any further action by any Party, subject and subordinate to the leases for the Data Centers and all superior instruments to such leases (including, without limitation, mortgages or ground leases for the Data Centers). This Agreement is a services agreement and is not intended to and will not constitute a lease of any real or personal property. Client acknowledges and agrees that (i) it has been granted only a license to use the Licensed Space in accordance with its Agreement (“License“); (ii) Client has not been granted any real property Interest under this Agreement; and (iii) Client had no rights as a tenant or otherwise under any real property or landlord/tenant laws, regulations, or ordinances. Unwired Broadband hereby reserves, with respect to the Data Centers, all rights not specifically granted to Client in this Agreement, including, without limitation, the right (i) of access to and use of Data Center for its own use or the use of others; (ii) to grant additional licenses to other persons or co-location clients for the use of portions of the Data Centers; and (iii) to exercise or grant other rights not inconsistent with the rights granted in this Agreement. Unless otherwise expressly agreed to by the Parties in writing, Unwired Broadband will retain title to all parts and materials used or provided by Unwired Broadband or third parties acting on Unwired Broadband’s behalf in the performance and/or furnishing of the Services.
(a) Unwired Broadband will indemnify, defend and hold harmless the Client Parties from any and all liability, damages, costs and expenses (including reasonable attorneys’ fees and expenses) for claims brought by third parties for personal injury or damage to tangible property resulting from the gross negligence or willful misconduct of Unwired Broadband.
(b) Client will indemnify, defend and hold harmless the Unwired Broadband Parties from any and all liability, damages, costs, and expenses (including reasonable attorneys’ fees and expenses) for (i) claims brought by third parties for personal injury or damage to tangible property resulting from the gross negligence or willful misconduct of Client; (ii) any claim by any of Client’s Authorized Persons, Accompanying Persons or Affiliates or any employee of Client other than a claim based on the gross negligence or willful misconduct of Unwired Broadband; (iii) any claim relating to, or arising out of, Client’s, or any of its clients’, services, equipment (including Client’s Equipment) or Client’s use of the Services provided under this Agreement (including claims relating to interruptions, suspensions, failures, defects, delays, impairments or inadequacies in any of the aforementioned services, including the Services from Unwired Broadband); (iv) any claim that Client has failed to fulfill a contractual obligation with a third party; and (v) any claim resulting from Client’s failure to obtain or maintain the required consents pursuant to Section 3(b).
(c) Through counsel of its own choosing, the indemnified party has the right to participate in (but no control the defense of) any proceeding relating to an action in which it is being indemnified under this Agreement, but in such even the indemnified party will be solely responsible for paying the legal fees and expenses for its own counsel. The indemnifying party will, however, continue to be solely responsible for all other expenses relating to the action, including the legal fees and expenses of the counsel it selects to defend claims. The indemnifying party shall not take any action that unreasonably exposes the indemnified party to a risk of damages, which would not be covered by such indemnity, and may not settle any matter without the prior written consent of the indemnified party, which shall not be unreasonably withheld.
5. Dispute Resolution. Any controversy or claim arising out of or relating to this Agreement, or the breach thereof, except those involving non-payment of monthly fees or amounts due for the Services which may be adjudicated in court, shall be settled by arbitration administered by the American Arbitration Association in accordance with its Commercial Arbitration Rules and judgment on the award rendered by the arbitrator(s) may be entered in any court having jurisdiction thereof. The place of arbitration shall be Fresno County, California. The arbitration shall be governed by the laws of the State of state of California. The prevailing party shall be entitled to an award of reasonable attorney fees. The parties understand that the arbitration process is final and binding and waives the right have a dispute adjudicated in court; provided, however, that nothing herein shall prevent a party from seeking injunctive or provisional relief in court, or from filing an action to seek payment for the Services. Notwithstanding the foregoing, to the extent that this section applies to a dispute between an individual consumer and a business, the American Arbitration Association Supplementary Procedures for Consumer-Related Disputes (found at www.adr.org) shall supplement, as required by applicable laws, including those affording individual consumers additional due process rights in arbitration, the procedures provided herein, and shall govern in the case of any conflict among applicable procedures.
6. Warranty Disclaimer, Limitation of Liability, Credits, Court Action
(a) EXCEPT AS OTHERWISE EXPRESSLY SET FORTH IN THIS AGREEMENT, UNWIRED BROADBAND DOES NOT MAKE, AND HEREBY DISCLAIMS, ALL EXPRESS WARRANTIES WITH REGARD TO THE SERVICES, INCLUDING BUT NOT LIMITED TO ANY WARRANTY THAT THE SERVICES PROVIDED HEREUNDER WILL BE UNINTERRUPTED, ERROR-FREE, OR COMPLETELY SECURE. UNWIRED BROADBAND DOES NOT MAKE, AND UNWIRED BROADBAND HEREBY DISCLAIMS, ANY AND ALL IMPLIED WARRANTIES WITH REGARD TO THE SERVICES, INCLUDING THE IMPLIED WARRANTIES OF MERCHANTABILITY OR SATISFACTORY QUALITY, FITNESS FOR A PARTICULAR PURPOSE AND NONINFRINGEMENT OF THIRD PARTY’S INTELLECTUAL PROPERTY RIGHTS. ALL SERVICES PROVIDED PURSUANT TO THIS AGREEMENT ARE PROVIDED OR PERFORMED ON AN “AS IS” “AS AVAILABLE” BASIS, AND CLIENT’S USE OF THE SERVICES IS SOLELY AT ITS OWN RISK.
(b) NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THIS AGREEMENT, IN NO EVENT WILL EITHER PARTY BE LIABLE TO THE OTHER PARTY FOR (I) LOST PROFITS, (II) LOSS OF BUSINESS; (III) LOSS OF REVENUES (EXCEPT THAT CLIENT SHALL BE LIABLE FOR ANY SERVICE FEES OR OTHER AMOUNTS OWED UNWIRED BROADBAND UNDER THIS AGREEMENT); (IV) LOSS OF DATA OR INTERRUPTION OR CORRUPTION OF DATA; (V) ANY CONSEQUENTIAL OR INDIRECT DAMAGES; OR (VI) ANY INCIDENTAL, SPECIAL, RELIANCE, EXEMPLARY OR PUNITIVE DAMAGES (IF APPLICABLE), EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, OR ANY OTHER TYPE OF DAMAGES OTHER THAN DIRECT DAMAGES.
(c) NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THIS AGREEMENT, UNWIRED BROADBAND’S TOTAL LIABILITY TO CLIENT IN THE AGREEMENT FOR THE ENTIRE TERM (AND REGARDLESS OF WHETHER THE CLAIMS ARE BROUGHT DURING OR AFTER THE TERM) WITH RESPECT TO ALL CLAIMS ARISING FROM OR RELATED TO THE SUBJECT MATTER OF THIS AGREEMENT (INCLUDING ATTORNEYS’ FEES) WILL NOT EXCEED THE AMOUNT PAID BY CLIENT TO UNWIRED BROADBAND FOR THE THREE (3) MONTH PERIOD IMMEDIATELY PRECEDING THE MONTH IN WHICH THE FIRST CLAIM AROSE. AS A FURTHER LIMITATION, UNWIRED BROADBAND’S MAXIMUM LIABILITY FOR ANY CLAIMS RELATING TO SERVICES OFFERED OR PROVIDED BY UNWIRED BROADBAND (I) FOR A NON-RECURRING CHARGE ONLY OR (II) AS SMART HANDS SERVICES, SHALL NOT EXCEED THE AMOUNT OF THE SERVICE FEE FOR SUCH SERVICE PROVIDED ON THE OCCASION GIVING RISE TO THE CLAIM.
(d) THE LIMITATIONS SET FORTH IN SECTIONS 5(b)-(c) WILL APPLY TO ALL CLAIMS AND CAUSES OF ACTION WHATSOEVER, REGARDLESS OF WHETHER IN CONTRACT, TORT, STRICT LIABILITY OR OTHER THEORY.
(e) Unwired Broadband and Client each waive the right to bring any claim against the other Party arising or in any way relating to this Agreement more than one (1) year after the date this Agreement expires or is earlier terminated. Each Party recognizes and agrees that the warranty disclaimers and liability and remedy limitations in this Agreement are material bargained for bases of this Agreement.
(f) In the event any legal action, court proceeding or arbitration to construe or enforce any term of the agreement, including collection of amounts alleged to be due and owing under the contract and the services rendered pursuant to the contract, shall be commenced and maintained in an appropriate court or other forum in Fresno, California.
(g) If any legal action, including arbitration is brought to enforce or interpret the provisions of this contract, including collection of amounts alleged to be due and owing under the contract and the services rendered pursuant to the contract, the prevailing party shall be entitled to recover reasonable attorney’s fees and costs, from the other party. These fees and costs are in addition to any other relief to which the prevailing party may be entitled.
7. Insurance. Client agrees to maintain appropriate insurance, at its expense, for each Data Center during the entire time this Agreement is in effect, which at a minimum shall consist of (i) Commercial General Liability Insurance in an amount not less than One Million U.S. Dollars ($1,000,000), per occurrence for bodily injury, death and property damage, which policy will include contractual liability coverage related to this Agreement; (ii) Workers’ Compensation and employer’s liability insurance in an amount not less than that prescribed by applicable law; and (iii) umbrella or excess liability insurance combined single limit of no less than Two Million U.S. Dollars ($2,000,000) or the local currency equivalent. Prior to any use of the Licensed Space at a Data Center (including, but not limited to, delivery of any Client’s Equipment to a Data Center), Client will furnish Unwired Broadband with certificates of insurance that evidence the minimum levels of insurance set forth herein and which list Unwired Broadband and Unwired Broadband’s landlord, as may be applicable, as additional insureds (but the insurance must only list Unwired Broadband’s landlord as an additional insured if Unwired Broadband so requests). In addition, Client will notify Unwired Broadband of any non-renewal, cancellation, reduction in policy limit or other material change in Client’s coverage at least forty-five (45) days prior to such change in coverage.
8. Termination of Agreement and Suspension of Service.
(a) Either Party may terminate this Agreement by giving written notice of termination to the other Party if the other Party breaches any material term or condition of this Agreement and fails to cure such breach within thirty (30) days (ten (10) days in the case of a failure to pay Service Fees) after receipt of such notice. If the breach (other than where Client has failed to pay Service Fee) cannot be cured within thirty (30) days, the breaching Party shall be given a reasonable period of time, but not to exceed sixty (60) days, to cure the breach, provided that the breaching Party acts promptly and diligently to cure such breach.
(b) Without limiting Unwired Broadband’s rights under Section 7(a), Unwired Broadband may suspend the provision of Services and deny access and removal of Client’s Equipment to the Data Center, if (i) Client fails to cure any monetary breach of this Agreement (e.g. fails to pay any amounts owed) within ten (10) days of notice of the same (or within five (5) days of notice of the same in the event Client’s past due on two (2) or more occasions during a six (6) month period); (ii) Client or Client’s Equipment Interferes with Unwired Broadband’s operation or maintenance of the Data Center or with one or more of its other clients’ use thereof, and within a reasonable time, not to exceed one (1) hour of being notified by email or phone, Client fails to (a) cease such interference; (b) provide a plan acceptable to Unwired Broadband to cease such interference; or (c) authorize Unwired Broadband to resolve such potential interference (billed at Smart Hands rates); (iii) in Unwired Broadband’s reasonable judgment, Client or Client’s Equipment has the potential to interfere with Unwired Broadband’s operation or maintenance of the Data Center or with one or more of its other clients’ use thereof, and within a reasonable amount of time, not to exceed forty-eight (48)hours of being notified by email or phone, Client fails to (a) resolve such potential interference; (b) provide a plan acceptable to Unwired Broadband to resolve such potential interference; or (c) authorize Unwired Broadband to take action to resolve such potential interference (billed at Smart Hands rates). If Unwired Broadband suspends a Service pursuant to this Section 7(b), unless Unwired Broadband has subsequently terminated this Agreement as permitted under this Agreement, Unwired Broadband will resume the discontinued Service as soon as reasonably practical after it is reasonably satisfied that Client has cured the breach(es) which gave rise to the suspension, and Unwired Broadband may charge a reinstatement fee equal to the direct out-of-pocket expenses incurred by Unwired Broadband to discontinue and then resume the Service. Further, Unwired Broadband may terminate this Agreement if Client’s breach referenced in Section 7(b)(ii) or (iii) continues for at least five (5) days or occurs more than three (3) times in any twelve (12) month period.
(c) Unwired Broadband may terminate this Agreement immediately upon giving written notice to Client if Client becomes unable to pay debts as they become due, ceases to do business, enters into a deed of arrangement, undergoes judicial management, commences the process of liquidation, has a receiver appointed or begins winding up or similar arrangements.
(d) Unwired Broadband may terminate this Agreement upon giving written notice to the Client as to any affected Licensed Space or Data Center if any portion of the Data Center in which the affected Licensed Space is located becomes subject to a government order having the effect of terminating Unwired Broadband’s use of such facility or if Unwired Broadband’s possession is terminated or abated for any reason (e.g. condemnation proceeding) or Unwired Broadband cannot provide Client with access to the affected Licensed Space as contemplated herein for a period exceeding thirty (30) days.
9. Removal of Client’s Property.
(a) Upon expiration or termination of this Agreement, or an Order (or any portion thereof), all rights of Client with respect to the affected Licensed Space (“Terminated Space”), will terminate, and Client will immediately remove all of Client’s Equipment and other items belonging to Client, Client’s Authorized Persons, Accompanying Persons and/or Associated Entities located in such Terminated Space (“Client Property”) but not any wiring, cable or other equipment or property that does not belong to Client. Client agrees that unless Unwired Broadband otherwise agrees in writing, failure to remove Client Property within ten (10) days from the expiration of the applicable Order (or Unwired Broadband’s termination of the Order due to Client’s breach or as otherwise permitted under this Agreement), or within thirty (30) days if the Order is terminated before expiration due to Unwired Broadband material breach, will constitute abandonment of the Client Property and will automatically provide Unwired Broadband with the remedies it has under the law of the jurisdiction where the Data Center is located in connection with abandoned property, and additionally, Unwired Broadband will be entitled to pursue all available legal remedies against Client, including, without limitation, any or all of the following remedies: (i) immediately removing any or all such property and storing at Client’s expense at an on-site or off-site location; (ii) shipping such property to the address set forth a the end of this Agreement at Client’s risk and expense; or (iii) upon thirty (30) days prior written notice to Client, liquidating such property and charging Client for all costs associated with the liquidation and retain from liquidation all amounts necessary to pay Unwired Broadband all amounts owed by Client under this Agreement, including this Section 8(a).
(b) Neither Party will be liable to the other Party for properly terminating this Agreement of any portion thereof in accordance with its terms, but Client will be liable to Unwired Broadband for any amounts due and payable. Where any Order terminated prior to the expiration of the Service Term, except due to Unwired Broadband’s material breach, Client will immediately be liable to Unwired Broadband for all Service Fees which would have been payable by Client for the remainder of the entire Service Term.
10. Confidential Information.
(a) Except as expressly permitted in this Section 9, no Party will, without the prior written consent of the other Party, disclose any Confidential Information of the other Party to any third party.
(b) Neither Party will disclose Confidential Information from the other Party except where (i) the disclosure is required by applicable law or regulation or by an order of a court or other governmental body having jurisdiction after giving reasonable notice to the other Party with adequate time for such party to seek a protective Order; (ii) if in the opinion of counsel for such Party, disclosure is advisable under applicable securities laws regarding public disclosure of business information; or (iii) the disclosure is reasonably necessary and is to that Party’s, or its Affiliates’, employees, officers, directors, attorneys, accountants and other advisors, or the disclosure is otherwise necessary for a Party to exercise its rights and perform its obligations under this Agreement, so long as in all cases referenced above, in this subsection (iii), the disclosure is no broader than necessary, and the person or entity who receives the disclosure agrees prior to receiving disclosure to keep the information confidential (except with regards to disclosures to a court or arbitrator in connection with an action to enforce a party’s rights under this Agreement). Each Party is responsible for ensuring that any Confidential Information of the other Party that the first Party discloses pursuant to this Agreement (other than disclosures pursuant to subsections (i) and (ii) (but with respect to (iii), only with regard to disclosures to a court or similar body necessary for a Party to exercise its rights under this Agreement) above that cannot be kept confidential by the first Party is kept confidential by the person receiving the disclosure to the same extent that the receiving Party must keep the information confidential.
(c) Neither Client nor Unwired Broadband grants the other the right to use its trademarks, service marks, trade names, logos, copyrights, or other intellectual property rights or other designations in any promotion, publication, or press release without the prior written consent of the other Party in each case. Notwithstanding the restrictions set forth in this Agreement during the Term, (i) Unwired Broadband may issue a press release announcing Client’s entry into the Data Centers without obtaining Client’s consent; and (ii) either Party may publicly refer the other Party, orally and in writing, as a client or vendor of services of or to the other Party, as the case may be, without obtaining consent from such other Party.
11. Miscellaneous. (a) Notice. Unwired Broadband where otherwise expressly states in the Agreement, all notices, consents, or approvals required by this Agreement will only be effective if in writing and sent by (i) certified or registered air mail, postage prepaid; (ii) overnight delivery requiring a signature upon receipt,; (iii) delivery by hand; or (iv) facsimile or electronic mail (promptly confirmed by mail), to the Parties at the respective street addresses, facsimile numbers, or electronic mail addresses set forth and designated as such in this Agreement or such other addresses or facsimile numbers as may be designated in writing by the respective Parties, Notices, consents and approvals under this Agreement will be in writing and be deemed effective on the date of receipt.
(b) Entire Agreement. This Agreement and all Orders executed at any time during the Term, all of which are incorporated herein by this reference, constitute the complete and entire agreement between the Parties with respect to the subject matter hereof, and supersede and replace any and all prior or contemporaneous discussions, negotiations, proposals, understandings, and agreements, written and oral, regarding such subject matter, as well as any industry custom. This Agreement may be executed in two or more counterparts (and the signature pages may be delivered with ink signature or by facsimile or email), each of which will be deemed an original, but all of which together will constitute on and the same instrument.
(c) Construction. Each Party acknowledges and agrees that it has reviewed this Agreement, and it is the Parties’ intent that this Agreement will not be construed against any Party. The section headings and captions throughout this Agreement are for convenience and reference only, and will not be used to construe the Agreement. If any provision of this Agreement is adjudged by a court to be invalid, illegal or unenforceable, the application of such provision in any other circumstances, or the validity, legality, or enforceability of any other provision of this Agreement. All terms and conditions of this Agreement will be deemed enforceable to the fullest extent permissible under applicable law, and, when necessary, the court in any action between the Parties is requested to reform any and all terms or conditions to give them as much effect as possible. In this General Terms and Conditions, references to “Section(s)” shall be references to “Section(s)” of such document.
(d) Survival. [Sections 3(b), 3(c), 3(e), 4, 5, 7, 8, 9, 10(a), (c), (d), (f), and (h)] will survive the termination of this Agreement, but Section 9 will only survive for three(3) years after the end of the Term. In addition, all provisions of the Agreement that can only be given proper effect if they survive termination of this Agreement will survive the termination of this Agreement. This Agreement will be valid as to any obligation incurred prior to termination of the Agreement, including any Service Fees owed by Client.
(e) Unwired Broadband Affiliates, Independent Contractors: Assignment. Unwired Broadband may permit any other Unwired Broadband Affiliate, or any independent contractor or other third party, to perform any of Unwired Broadband’s obligations hereunder, and Unwired Broadband may assign this Agreement to any person or entity at any time. Client may assign this Agreement without Unwired Broadband’s prior consent (in which event Client must provide Unwired Broadband with prior notice of the assignment) only where the party to whom this Agreement is assigned by Client is either an Affiliate of Client, or is acquiring all or substantially all of Client’s business or assets, and in all such events the person or entity to whom this Agreement is assigned by Client agrees in writing to be bound by all of the terms of this Agreement. This Agreement will be binding upon and inure to the benefit of all successors and permitted assigns of Unwired Broadband and Client, who will be bound by all of the obligations of their predecessors or assignors. Except as set forth in this Agreement with respect to sublicensing only and Section 10(e) with respect to an assignment of the entire Agreement under the conditions specified above only, Client will not assign, delegate, transfer, or sublicense all or any part of the Licensed Space.
(f) Force Majeure. Except for Client’s obligation to pay amounts owed under this Agreement, including Service Fees, neither party will be responsible or in any way liable to the other party, and neither party will have any termination or other rights, arising out of or relating to any failure by the other party to perform or any hindrance in the performance of its obligations under this Agreement if such failure or hindrance is caused by events or circumstances beyond such nonperforming Party’s control, including acts of God, war, labor strike, terrorist act, fire, flood, earthquake, health epidemic, any law, Order, regulation or other action of any governing authority or agency thereof, or failure of the Internet.
(g) Conflicts. All Orders are at all times subject to all of the terms and conditions of this Agreement. In the event of ambiguity, conflict or inconsistency among the documents comprising this Agreement, the documents shall be given a descending order of precedence as follows: (i) the Order; (ii) the Attachments and Exhibits to this Agreement, other than these General Terms and Conditions; (iii) the Policies; (iv) the body of the Master Service Agreement, and (v) these General Terms and Conditions.
(h) General. Except where otherwise expressly states herein, and subject to the limitations set forth in Section 5, the rights and remedies provided for herein are cumulative and not exclusive of any rights or remedies that a Party would otherwise have. Unwired Broadband and Client are independent contractors and this Agreement will not establish any relationship of partnership, joint venture, employment, franchise or agency between Unwired Broadband and Client. Neither Unwired Broadband nor Client will have the power to bind the other or incur obligations on the other’s behalf without the other’s prior written consent.
The Parties agree that there will be no third party beneficiaries to this Agreement, including, but not limited to, any Accompanying Person, Affiliate, Sublicensee, Authorized Person, end user, client or the insurance providers for either Party.
No waiver of any breach of any provision of this Agreement will constitute a waiver of any prior, concurrent or subsequent breach of the same or any other provisions hereof, and no waiver will be effective unless made in writing and signed by an authorized representative of the waiving Party.
Accompanying Person: Each person (other than an employee of Unwired Broadband) who is accompanied by and Authorized Person while at a Data Center.
Affiliate: As to a party, means any entity controlling, controlled by, or under common control with such party, where the term “control” and its correlative meanings, “controlling”, “controlled by”, and “under common control with,” means the legal, beneficial or equitable ownership, directly or indirectly, of more than fifty percent (50%) of the aggregate of all voting equity Interests in an entity.
Authorized Person: Each person who is then included on the most recent list of Authorized Persons given to Unwired Broadband by Client in accordance with the Policies.
Billing Commencement Date: For a Service ordered in an Order other than Online Orders or Phone Orders, the date designated in the Order as the Billing Commencement Date. For a Service ordered in an Online Order or Phone Order, the date Unwired Broadband begins providing the Service to Client, unless otherwise agreed to by the Parties in the Order.
Confidential Information: Information disclosed by one Party to the other Party that (a) is identified by the disclosing party, in writing or orally, as confidential at the time of disclosure, or (b) contains the disclosing Party’s client lists, client information, technical information, pricing information, pricing methodologies, financial position, trade secrets, client communications or proposals, benchmarking information, satisfaction surveys, or information regarding the disclosing Party’s business planning or business operations. Ina addition, (i) the terms of this Agreement will be deemed Confidential Information of each Party; and (ii) the design of the Data Centers, the Services provided and equipment used at the Data Centers, all will be considered Confidential Information of Unwired Broadband. Other than the terms and conditions of this Agreement, information will not be deemed Confidential Information hereunder if such information (i) is known to the receiving Party prior to receipt from disclosing Party directly or indirectly from a source other than one having obligation of confidentiality to the disclosing Party; (ii) becomes known (independently of disclosure by the disclosing Party) to the receiving Party directly or indirectly from a source other than one having obligation of confidentiality to the disclosing Party; (iii) become publicly known or otherwise ceases to be secret or confidential, except through a breach of this Agreement by the receiving Party; or (iv) is independently developed by the receiving Party. For the avoidance of doubt, the mere placement of materials ore equipment containing information at an Unwired Broadband location does not constitute disclosure of such information to Unwired Broadband.
Cross-Connect: A physical or wireless interconnection within a Data Center that (i) exits Client’s cage or (ii) connects Client to another Unwired Broadband client.
Client Care Website: The client care website accessible via the Internet at a location designated by Unwired Broadband, which it had the right to change from time to time.
Client Company: A company that is an Affiliate of Client.
Client Cross-Connect: A physical interconnection, including cable, connection, and other wiring that (i) does not exit Client’s cage, (ii) does not connect Client to another Unwired Broadband client, and (iii) interconnects (a) Equipment belonging to the Client or (b) POD Equipment that is provided by Unwired Broadband and that is in Client’s cage with Client’s Equipment.
Client’s Equipment: All network and/or computer equipment (including wiring and Client Cross-Connects between such equipment and Client’s POD Equipment) that is located in the Licensed Space, including equipment that is owned, leased, licensed or otherwise obtained for use by Client. Client’s Affiliates, Client’s Authorized Person, Accompanying Person, or Associated Entities (but this does not include Cross-Connects or POD Equipment that is provided by Unwired Broadband and that is located in Client’s Licensed Space).
Client Parties: Client and the Affiliates, owners, officers, directors, employees, and agents of Client or of the Affiliates of Client.
Data Centers: The data centers in which Client licenses Licensed Space or receives Services from Unwired Broadband pursuant to an Order.
Licensed Space: The areas which are licensed by Client for the Services being provided. For each Licensed Space, Unwired Broadband will determine at all time during the Term the exact location in the Data Centers where the Licensed Space will be located, and Unwired Broadband will notify Client accordingly.
Online Order: An Order of Services place online via the Client Care Website which will be effective only after Unwired Broadband accepts it in accordance with Unwired Broadband’s then current procedures.
Order: A statement of work (“SOW”) incorporated into this Agreement by reference prepared by Unwired Broadband that describes the Services. An Order may also be referred to as a SOW and may be amended by a SOW Amendment. SOW Amendments will amend existing Orders but will not replace them unless otherwise agreed by the Parties in writing. Orders are not valid until signed by both Parties, except for Online Orders and Phone Orders. Unwired Broadband is under no obligation to accept an Order. Unless otherwise specified, reference to Order(s) shall also include Online Orders and/or Phone Orders.
Order Confirmation: A document which may not include signature sent by Unwired Broadband that confirms, among other things, the Services, the quantity of Services, and the prices of such Services. Not all Online Orders or Phone Orders require Order Confirmations and Unwired Broadband will in its sole discretion determine which Online Orders or Phone Orders require Order Confirmations to be effective.
Parties: Client and Unwired Broadband.
Party: Client or Unwired Broadband
Phone Order: An Order for Services placed over the phone, where available, via an Unwired Broadband client care representative, which will be effective only after Unwired Broadband accepts it in accordance with Unwired Broadband’s then current procedures or Unwired Broadband begins providing the Service ordered under the Online Order.
POD Equipment: The (i) patch panels, DSX panels for category 5 twisted pair, co axial, single and multi-mode fiber, or (ii) other appropriate (as reasonably determined by Unwired Broadband) point of demarcation equipment.
Policies: The procedures, rule, regulations, security practices and policies adopted by Unwired Broadband that are then in effect for the Data Centers, and as they may be amended from time to time by Unwired Broadband.
Services: All services, goods and other offerings of any kind requested under an Order agreed to by Unwired Broadband, and to be provided by Unwired Broadband to Client pursuant to this Agreement.
Service Fees: Charges and fees for Services charged to Client by Unwired Broadband pursuant to this Agreement, and are exclusive of Taxes.
Service Term: The period commencing on the Billing Commencement Date and ending after the term specified on the applicable Order.
Smart Hands Services: Service that are defined as Smart Hand Services under the then current Policies.
Sublicensed Space: The portion of the Licensed Space that is sublicensed, to a Sublicensee by Client pursuant to the terms of this Agreement.
Sublicensee: A client of Client or other third party who sublicenses all or part of the Licensed Space from Client.
Taxes: Sales, use, transfer, privilege, excise, VAT, GST, consumption tax, and other similar taxes and duties, whether foreign, national, state or local, however designated, now in force or enacted in the future, which are levied or imposed by reason of the performance by Unwired Broadband or Client under this Agreement or by Client with respect to its operations and use of the Services, but excluding taxes on Unwired Broadband’s net income.
Term: The term of this Agreement as determined in accordance with Section 1 of this Agreement.
Unwired Broadband Company: An Affiliate of Unwired Broadband or any other business entity deemed by Unwired Broadband to be an Unwired Broadband Company.
Unwired Broadband Parties: Unwired Broadband and the Affiliates, owners, officers, directors, employees, and agents of Unwired Broadband or of the Affiliates of Unwired Broadband.