Zipa will provide the Customer with access, wiring, equipment,
and services as shown on the monthly invoice for the purpose of internet access,
via Zipa network according to the terms and conditions contained in this Agreement.
Accordingly, Zipa and Customer agree as follows:
1. Purpose of Agreement; Use of Space
Zipa grants Customer a nonexclusive limited license to occupy the portion
of the Premises as per their invoice. Customer agrees to use the Space only
to install, maintain and operate equipment to interconnect to the Zipa network.
Customer agrees that it is being granted only a license to occupy the Space
and not a real property interest in the Space. Customer’s occupancy of the
Space will serve as Customer’s acceptance of the Space.
Customer agrees to use the Space only for the purposes described in this
Agreement, and not for any unlawful purpose, nor in a manner which conflicts
with Zipa Internet Use Policy (incorporated in this Agreement by this reference
and found at www.zipa.com). Customer further agrees not to
encumber the Space in any manner. Customer and its approved subcontractors
and representatives agree not to smoke, drink, or eat in the Space, to keep
the Space in a clean and safe condition, and to comply with any rules of the
applicable landlord and/or Zipa.
2. Term; Options to Renew; Holdover
and Possession
The term of this Agreement begins on the later of: (1) the requested service
date or (2) the date Zipa completes the Space, and continues for the term
of the invoice. Following the end of the Initial Term, this Agreement will
renew on a monthly basis until terminated by either party on at least 30 days
prior written notice. All terms and conditions contained in this Agreement
will be applicable to any renewal term, expect upon written notice by Zipa.
Customer’s use of the Space throughout the term of this Agreement is contingent
upon Zipa continuing to own or lease the Premises where the Space is located.
If Customer does not remove its equipment form the Space within 30 days following
the termination of this Agreement, Zipa may, at Customer’s expense, remove
Customer’s equipment from the Space and ship it to Customer’s last known address.
3. License Fee, Taxes and Other Fees
Customer agrees to pay the monthly license fee for its occupancy of the Space.
Customer may request additional space at the Premises at any time during the
term of this Agreement, and Zipa may, but is not obligated to, provide Customer
with additional space. In the event Zipa Provides Customer with additional
space, Customer agrees to pay an appropriate increase in its license fee,
as mutually agreed upon by Zipa and Customer.
If Zipa’s good faith estimate of Customer’s projected monthly recurring charges
is $5,000.00 per month or more, Zipa may require an official letter of credit
issued by Customer’s primary financial institution.
If Customer removes its equipment from the Space or terminates this Agreement
other than as provided in Section 15 below before the expiration of the Initial
Term (except for the removal under Sections 11 or 15 below), Customer will
be liable for payment of fifty percent (50%) of all monthly recurring fees
multiplied by the number of months remaining in the Initial Term.
Zipa’s fees do not include taxes or other assessments by regulatory agencies.
Customer agrees to reimburse Zipa for it’s pro rata portion of these charges
on a monthly basis.
Customer agrees to pay Zipa for all expenses that Zipa incurs in preparing
the Space for Customer’s equipment. These expenses if any are listed at http://www.zipa.com/,
and are due on the day this Agreement is signed.
Customer agrees to reimburse Zipa for any damage to the Space that is caused
by Customer, its representatives or its equipment.
4. Minimum Use Requirement
Customer agrees to maintain a minimum of 256 kbps per rack unit or 1 mbps
per Cabinet, which ever is less averaged across the month. If Customer does
not maintain this level of use, and does not correct the shortfall within
90 days of notice from, Zipa may terminate this Agreement on 30 days additional
notice.
5. Maintenance
Customer is responsible for performing all maintenance and repair on its
equipment. Zipa has no obligation to maintain Customer’s equipment.
6. Landlord Services
Customer agrees that Zipa will not perform any services normally provided
by a landlord at any leased Premises. Services provided by a landlord will
be made available to Customer on the same basis as they are available to Zipa.
Zipa has no liability for the delay or failure of any landlord to perform
any service.
7. Customer Access
Customer may access the Space when accompanied by a Zipa escort Monday –
Friday between 8:00 am and 5:00 pm, excluding holidays (“Normal Business Hours”).
Customer may also access the Space when accompanied by a Zipa escort outside
of Normal Business Hours at the fees listed at http://www.zipa.com/.
8. Zipa Access
Customer will provide Zipa with unrestricted access to the Space on 24 hours
advance notice. In the event of an emergency, Zipa will have immediate unrestricted
access to the Space. Customer’s phone number listed in their account will
serve as a 24-hour maintenance and emergency contact telephone number for
trouble notification. Customer will also post this number on its equipment
located in the Space.
9. Improvements to Space
Zipa must review and provide written approval for all plans and contractors
before Customer makes any improvements to the Space. Customer, or the contractor
employed by Customer, must guarantee in writing that the workmanship of any
improvement to the Space will be free from defects for one year after completion.
All improvements will be made a to Customer's expense, will become part of
the Space, and may not be removed from the Space at the end of this Agreement.
10. Interconnection with Third Parties
Customer grants Zipa a right of first refusal to bid on and provide all telecommunications
related services to Customer at the Space. Customer may connect to telecommunications
services provided by third parties at the Space only if Zipa gives its prior
written consent. Zipa will provide Customer with entrance facilities and
cross connections throughout the term of this Agreement at the prices listed
at http://www.zipa.com/. Upon the end of Agreement, all
interconnections shall be removed from the customer space by the customer. If the customer
does not remove the interconnections, Zipa will remove the interconnections at the
customer's expense. Removal shall include removal of all cabling installed for the
customer's use, unless an exception is given in writing by Zipa.
11. Relocation of Equipment
Zipa may require Customer to relocate its equipment on 60 days prior written
notice. In the event of an emergency beyond Zipa’s control, Customer may
be required to relocate its equipment immediately upon notification. If Customer
is required by Zipa to relocate for any reason, Zipa and Customer shall evenly
split all costs associated with any such relocation. If possible, Zipa will
provide a good faith estimate to Customer of such costs prior to any relocation.
Zipa will provide Customer with a comparable alternate location if Customer
is required to relocate its equipment.
12. Lien on Equipment
Zipa will have no rights to or interest in the Equipment other than statutory
rights, if any, granted a landlord with respect to the property of a tenant
(commercial or residential), and those set forth in this Agreement. Except
as provided herein, the Equipment shall remain the sole property of Customer.
However, if Customer fails to pay any amounts due to Zipa or is in default
of any agreement with Zipa, Zipa will have a lien on the Equipment and all
other personal property of Customer that may be located in or on the Premises.
Customer specifically waives any and all exemptions allowed by law with respect
to such lien, which lien may be enforced by Zipa by the taking and selling
of such Equipment and/or property (to be made in a commercially reasonable
manner upon thirty (30) days’ written notice to Customer), or such lien may
be enforced in any other lawful manner available to Zipa.
13. Insurance
If the value of the equipment housed in the Zipa facility exceeds $10,000,
Customer agrees to maintain insurance for its equipment located in the Space
in the amounts and types listed below, and to name Zipa as an additional insured
under these policies:
A.
Worker’s Compensation/Employer’s Insurance in accordance with all applicable
federal and state statutory requirements.
B.
Commercial General Liability – single limit for bodily injury and property damage
of $1,000,000 for each occurrence and General and Products Liability aggregates
of not less than $2,000,000.
C.
Excess or Umbrella Liability coverage – combined single limit for bodily injury
and property damage of not less than $1,000,000 for each occurrence with an
annual aggregate of $1,000,000 to apply in excess of all other insurance coverage’s
required above.
The name insured certificate holder must be shown to include:
Zipa, LLC.
650 Poydras Street
Suite 1015
New Orleans,
LA 70130
Customer will provide Zipa with certified copies of these insurance
policies within five days after receiving a request from Zipa. Customer will
obtain additional insurance coverage, if it is required by the landlord of
the Premises where the Space is located.
Customer will require any contractor it uses at the Premises
to comply with these insurance requirements and, upon request, to supply Zipa
with proof of this coverage before beginning work.
Zipa will not insure or be responsible for any loss or damage
to any property owned or leased by Customer or its employees or agents.
14. Quiet Enjoyment
Customer will not unreasonably interfere with Zipa or any other tenant’s
use of the Premises. Zipa will not unreasonably interfere with Customer’s
use of the Space and will make reasonable efforts to prevent others from interfering
with Customer’s use of the Space.
15. Termination for Cause
If either party materially braches any of the terms of this Agreement, the
other party may terminate this Agreement without liability to the breaching
party, but only if (a) the non-breaching party has given at least 10 days
notice of its intent to terminate, and (b) prior to the effective time of
the notice, the breaching party has not substantially remedied the breach.
If the breach relates to either Customer’s failure to make payments for 10
days after the payment becomes due or Customer’s unauthorized use of the Space,
then notice of termination may be effective on the day notice is given.
16. Notices
All notices under this Agreement must be in writing and sent via an overnight
courier that provides evidence of delivery. All notices to Customer must
be sent to the address listed on Page 1, and all notices to Zipa Must be sent
to the following address:
Zipa, LLC.
650 Poydras Street Suite 1015
New Orleans, LA 70130
17. Limitation of Liability
Zipa will take reasonable precautions to prevent damage to Customer’s equipment,
however, Zipa liability for any damage to Customer’s equipment is limited
to either the amount of actual damages or the total fees paid under this Agreement,
whichever is less.
Zipa will not be responsible to Customer for any special, indirect, consequential
or incidental damages, including but not limited to lost profits.
Customer agrees to indemnify, defend and hold Zipa harmless from any and
all liabilities, losses, damages, claims, actions, expenses and costs (including
attorney’s fees) incurred by or asserted against Zipa that result from:
(a) Customer’s use of the Space;
(b) Any third party that Customer permits to use or visit the
Space;
(c) Any breach of this Agreement by Customer; and
(d) Customer’s violation of any law or regulation.
18. Indemnification
Zipa hereby agrees to defend and indemnify and hold Customer harmless from
and against any claim, expense or liability occurring by reason of death of
or injury to any person, or loss of or damage to any property arising out
of or in connection with this Agreement and which is solely attributable to
Zipa’s gross negligence or willful misconduct.
19. Eminent Domain
In the event of a taking of all or any portion of the Premises where the
Space is located by eminent domain (or conveyance by the landlord to an entity
threatening eminent domain), this Agreement will terminate as of the date
of such exercise or conveyance. Zipa is not responsible to Customer for the
value of any unused portion of the term of this Agreement. Customer may,
however, seek relief from the landlord or appropriate authority.
20. Damage to Premises
If the Space is damaged by fire or other casualty, Zipa will notify Customer
immediately and will repair, or cause the landlord to repair, the Space so
that it is returned to substantially the same condition as prior to the damage.
If Zipa fails to complete the repairs within a reasonable time period, Customer
may, as its sole remedy, terminate this Agreement. Customer will be responsible
for any damage to its equipment if the Space is damaged by fire or other casualty.
21. Force Majeure
Notwithstanding anything contained in the Agreement to the contrary, neither
party shall be responsible to the other for damages or losses caused by an
“Act of God” or other “force majeure” event or for nonperformance of an obligation
stated in this Agreement due to the occurrence of a force majeure event.
If the force majeure condition lasts more than 90 days despite the reasonable
attempts of both parties to remedy the event, the unaffected party may terminate
this Agreement on written notice to the other party. A loss or reduction
of Customer’s business will not constitute a force majeure event.
22. Subordination
Customer acknowledges and agrees that this document is subject and subordinate
to Zipa’s mortgage or lease for the Premises where the Space is located.
23. Assignment
Customer may not assign or transfer its rights and obligations under this
Agreement to anyone else, whether by contract or operation of law, unless
Zipa agrees in writing beforehand. If Zipa consents to a transfer or assignment,
Customer will require that the assignee assume this Agreement and Customer
will cause the assignee to perform all of Customer’s obligations stated in
this Agreement. Any prohibited transfer or assignment is void.
Zipa may transfer its rights and obligations under this Agreement to one
of its affiliates if it provides written notice of the transfer to Customer.
Zipa may assign its rights under this Agreement to its lender(s).
This Agreement will be binding upon and inure to the benefit of any successor
or permitted assign of either Zipa or Customer.
24. Entire Agreement
This Agreement and Zipa Internet Use Policy constitute the entire agreement
between Zipa and the Customer with respect to the subject matter contained
in this Agreement, and supercede any other prior or contemporaneous communication
between Zipa and the Customer. This Agreement may only be modified by a written
amendment signed by both Zipa and the Customer.
Waiver of a breach of this Agreement by either party will be valid only if
made in a signed writing. A waiver of any current breach of this Agreement
will not act as a waiver of any future breach of this Agreement.
25. Confidentiality
During the term of this Agreement, it may become necessary for the parties
to provide each other with information concerning matters of a confidential
nature to the disclosing party. Zipa and the Customer each agree not to disclose
the other party’s confidential information to any third party. In addition,
Zipa and the Customer each agree that it will only share the other party’s
confidential information with its employees that need to know the information.
26. Governing Law
This Agreement is governed by the laws of the state
of Louisiana, without regard to its choice of law provisions.
The parties agree to the provisions set forth in this Agreement, and cause
this Agreement to be executed as of the date of the first invoice.
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