TERMS AND CONDITIONS
These Terms and Conditions (these "Terms and Conditions") are incorporated into and made part of that certain Bulk Services Agreement (the "Agreement") between Owner and Operator.
1. ACCESS RIGHTS.
1.1 Distribution Plant and Inside Wiring.
The Services will be provided by means of the System. The "System" consists of the Distribution Plant and the Inside Wiring. The "Distribution Plant" consists of any and all equipment, facilities and components, excluding the Inside Wiring, used, installed and/or upgraded by Operator to provide the Services at the Property. The "Inside Wiring" consists of the Home Run Wiring and the In-Unit Wiring. The "Home Run Wiring" consists of the coaxial cable, fiber optic cable, Ethernet and/or similar cable wiring extending from each intermediate distribution frame ("IDF") facility (each one of which connects to the Distribution Plant) serving each Unit, to the In-Unit Wiring located within each Unit. The "In-Unit Wiring" is the coaxial cable, Ethernet and/or similar cable wiring extending from the In-Unit Wiring in each Unit to each of that Unit's wall plates. All capitalized terms used but not otherwise defined herein shall have the meaning ascribed to such terms in the Agreement.
1.2 Installation and Plans.
Operator or its contractors will install the Distribution Plant and any Inside Wiring that Operator deems necessary to provide the Services at the Property. If the owner of any Unit requests any upgrade, repair or special configuration or type of In-Unit Wiring for that Unit, Operator will use commercially reasonable efforts to install In-Unit Wiring in accordance with the Unit-owner's request, provided that the Unit-owner will pay any additional costs associated with the special request. All work undertaken by Operator or its contractors will be performed in a good and workmanlike manner in accordance with Legal Requirements.
1.3 Telecommunications Closets and Antenna Site.
Owner will make available an "Antenna Site" for Operator's unencumbered exclusive use, at no cost to Operator, for the location of Operator's equipment to provide the Services. Owner will also make available, for Operator's use in providing the services, adequate secure space in one or more telecommunications closet(s) or similar facilities for the location of Operator's equipment, including one "Main Telecommunications Closet" for the location of Operator's main distribution frame ("MDF") and space in other telecommunications closets as needed for the location of Operator's IDF equipment. The Main Telecommunications Closet, the Antenna Site and other telecommunications closets shall be occupied and used by Operator solely for the purpose of providing the Services, as well as the installation, maintenance, repair, replacement and removal of the Distribution Plant. The Main Telecommunications Closet(s) will provide sufficient space (as determined by Operator) for Operator to locate its equipment needed for the provision of Services pursuant to the Agreement, and shall be secure, and temperature-controlled such that the average ambient temperature does not exceed seventy-three (73) degrees Fahrenheit. Owner shall provide to Operator, at no charge to Operator, electric power to the telecommunications closets used by Operator, as well as ventilation and such other utilities as necessary for the efficient installation, operation and maintenance of Operator's equipment, as well as access to the Property's electrical system. Owner has the right to permit other contractors to use the telecommunications closet(s) from time to time for the installation of their equipment in conjunction with Operator's use of the telecommunications closet(s), provided that such shared access does not: (i) interfere with or impede Operator's use of and operations within the telecommunications closet(s); (ii) endanger any portion of the Distribution Plant; (iii) allow access to the Distribution Plant of any unauthorized person; (iv) interfere with any of Operator's signals or Services, or (v) increase Operator's costs of operation at the Property.
1.4 Rooftop.
The Easement includes Operator's right to access to and use of sufficient space on the roof of any suitable building at the Property for the purpose of installing, operating, and maintaining satellite, radio and microwave and other transmission and reception devices ("Antennae") to be used for the purposes of providing the Services. The Antennae and associated wiring and equipment constitute part of the Distribution Plant as defined in these Terms and Conditions. The installation, maintenance, and operation of the Antennae shall comply with all applicable local, state and federal laws, regulations, and licensing requirements, including FCC, OSHA, and building code requirements, and the Antennae and associated equipment shall be installed, operated and maintained in such fashion as to not adversely affect equipment, systems or machinery of Owner, Occupants, or the Property. Owner agrees not to take any actions, or allow others to take any actions, that would adversely affect the equipment, systems or machinery which comprise the Antennae, including allowing others to install equipment subsequent to the Effective Date that interferes with the transmission or reception of the signals required to deliver the Services. Operator agrees that the Antennae shall not interfere with the transmission or reception of the signals required to deliver other services at the Property.
2. OWNERSHIP, USE AND MAINTENANCE OF DISTRIBUTION PLANT AND INSIDE WIRING, AND MARKETING.
2.1 Ownership of Distribution Plant and Inside Wiring.
The Distribution Plant, including any customer premises equipment ("CPE") provided by Operator to Occupants, is and shall remain the personal property of Operator, and subject to the Agreement, no person or entity other than Operator shall have any ownership interest in the Distribution Plant, no portion of which, notwithstanding any method of affixation or any applicable law relating to fixtures, shall be deemed a fixture of the Property. To the extent the Distribution Plant, or any portion of it, is deemed by operation of law or otherwise, not to be exclusively owned by Operator, Owner agrees to promptly assign and transfer or cause to be assigned or transferred the exclusive ownership of all right, title and interest in, to and with respect to the Distribution Plant, to Operator. Subject to the terms of the Agreement, upon completion of installation by Operator (if applicable), the Inside Wiring is and will remain the property of Owner (or in the case of In-Unit Wiring within a condominium Unit, the owner of the Unit), provided that: (a) during the Term, no person or entity other than Operator may interconnect with or utilize the Home Run Wiring without Operator's written consent, including without limitation Owner, its officers, directors, managers, employees, contractors, agents, affiliates, guests, any Occupant or any other third party; and (b) the transfer of ownership of the Inside Wiring to the Owner does not release the Owner from its obligation to pay to Operator the Installation Fee as set forth in the Agreement.
2.2 Maintenance.
Operator, at Operator's expense, will maintain the Distribution Plant and will perform routine maintenance work on any Home Run Wiring being used to deliver Operator's Services, in compliance with Legal Requirements; provided that: (a) to the extent such maintenance work is required due to damage caused by fire or other casualty, another provider of services at the Property, or the negligence or intentional misconduct of Owner, or any of its officers, directors, managers, employees, contractors or other agents, any Occupant, guest or other third party, upon receipt of Operator's invoice, Owner will promptly reimburse Operator for all reasonable costs and expenses associated with such maintenance or repair work; and (b) Operator is not responsible for any substantial repair or replacement of Home Run Wiring except to the extent such repair or replacement work is required due to the negligence of Operator or its contractor. Operator will be granted access to the Property and to the Distribution Plant during regular business hours for maintenance purposes and outside of regular business hours as needed to perform emergency repair or maintenance work on the Distribution Plant or the Inside Wiring. Operator will promptly return all buildings and improvements at the Property, as well as any surface and underground areas located thereon that have been altered during the course of Operator's installation, operation, maintenance, repair, upgrade or removal of the Distribution Plant to substantially the same condition that existed prior to the work, ordinary wear and tear excepted. Owner shall periodically, in its reasonable discretion, maintain the Property or any fixture or personal property located on or at the Property, including without limitation repairing or replacing any Inside Wiring as needed for purposes of Operator's delivery of the Services to the Units, except to the extent such repair or replacement is required due to the negligence of Operator or its contractors. If Operator performs any of the foregoing on Owner's behalf, Owner shall promptly reimburse Operator. Operator has no duty or obligation to provide, maintain or repair any television, computer, converter, receiver or other similar equipment owned by any owner of a Unit or any Occupant or third party. In the event Operator responds to a reported Service problem and said problem is caused by a malfunction of or interference by wiring or equipment not owned by Operator l, Operator reserves the right to impose a service charge on such Occupant and/or to perform the service so requested at fees set by Operator from time to time. Further, in the event Operator responds to a reported Service problem and said problem is caused by damage or interference (or theft) caused by a third party, Operator reserves the right to bill Operator's cost to repair and/or replace such damaged or affected portions of the System to Occupant or the person or entity that caused the damage, interference or theft, including service call costs. Owner shall supply names of its contractors, invitees or other third parties to Operator if Operator so requests to determine the identity of the party responsible for such damage, interference or theft and shall cooperate with Operator in settling such damage disputes.
2.3 Property Assistance; Inside Wiring; Non-Interference.
Throughout the Term Operator will have the exclusive right to interconnect with and use the Home Run Wiring, and Owner will not and will not permit any third party to interconnect with or otherwise interfere with Operator's exclusive right to access and utilize the Home Run Wiring for the provision of Services. Owner will use best efforts to keep the Distribution Plant, the Inside Wiring and any other components required for distribution of the Services, including the Inside Wiring, secure, and prevent any unauthorized access to or tampering with such equipment. Owner further agrees that it will take commercially reasonable efforts to ensure that any equipment installed or used by Owner or by any third party at the Property shall not interfere with the Distribution Plant, the Home Run Wiring or any of the Services. Owner shall promptly notify Operator of any damage to or unauthorized tampering with the Distribution Plant, the Inside Wiring, or any other equipment that is owned or used by Operator and will cooperate with Operator to cause the immediate cessation of such tampering. To the extent Owner is or becomes aware of any unauthorized interference with any of Operator's Services or signals, Owner will notify Operator and will take prompt, reasonable measures to end such interference as efficiently as possible.
2.4 Exclusivity; Over-The-Top Services.
During the Term, Operator shall have the exclusive right to provide the Services through the System, including the exclusive right to provide (a) satellite‑delivered multi‑channel video programming services, (b) high‑speed Internet access services, and (c) voice services to Units by means of the System or any other central signal distribution platform at the Property. Subject to the Legal Requirements, Owner shall not allow, permit, facilitate, or enter into any agreement with any third party to distribute, sell, or provide multi‑channel video programming services, high‑speed Internet access services, or voice services on a Bulk basis or through any central distribution system at the Property. Nothing herein shall prohibit individual Occupants from accessing or subscribing to Over‑The‑Top ("OTT") streaming or app‑based content services delivered over the public Internet to the Occupant's personal devices, provided that (x) such OTT services are not delivered through a central signal distribution system at the Property, (y) Owner does not enter into any agreement with any third party to provide OTT services on a Bulk or Property‑wide basis, and (z) no third party installs, operates, or maintains facilities at the Property for the purpose of delivering OTT services.
2.5 Wireless Signal Rate.
Maximum wireless signal rates are the physical rates derived from IEEE Standard 802.11 specifications. Actual wireless data throughput and wireless coverage are not guaranteed and will vary as a result of 1) client user device limitations, including rated performance, location, connection, quality, and client condition; 2) environmental factors, including building materials, physical objects, and obstacles, and 3) network conditions, including local interference, volume and density of traffic, product location, network complexity, and network overhead. Connectivity speeds are measured at the hard-wired primary access point.
2.6 Marketing.
Operator will not utilize common or limited common areas of the Property for the purpose of conducting sales and marketing activities. Additionally, Owner will not grant to any competing provider the right to utilize common or limited common areas of the Property for the marketing of services. Should Operator desire to market to Property owners, it shall be done indirectly via email, not to exceed one solicitation per thirty (30)-day period. Operator will send subject email to Owner for further distribution to Property owners.
2.7 Service Outages; Modifications.
Operator shall use commercially reasonable efforts to respond to reports of service outages within four (4) hours after receiving such report. Operator may add or delete programming and/or features from any Service, provided each Service remains of quality reasonably comparable to that offered by comparable providers at comparable properties in the geographical area.
3. TERMINATION.
3.1 Default and Termination.
A Party may terminate the Agreement in the event of a Default by the other Party. The term "Default" means any one or more of the following:
(a) Operator may terminate the Agreement upon the failure by Owner to pay within ten (10) days after the due date any amounts due to Operator as set forth in the Agreement.
(b) A breach by a Party of any material obligation to be performed by such Party under the Agreement, that is not cured by the breaching Party within thirty (30) calendar days ("Cure Period") following the breaching Party's receipt of written detailed notice of all specifics of the claimed Default, provided however, that (i) the 30-day Cure Period does not apply to any breach of a monetary obligation set forth in the Agreement, and (ii) if any non-monetary breach cannot reasonably be cured within the Cure Period, cause for terminating the Agreement does not occur, so there is no Default, if the defaulting party commences to cure the breach within the Cure Period and diligently completes the cure as soon as reasonably practicable; and (iii) the obligation to cure be extended by the operation of Section 8.8, except that if such breach is the failure to make a payment when due, the breaching party shall not be entitled to any such extension of time pursuant to Section 8.8.
(c) Upon the filing of a petition in bankruptcy or for reorganization by or against the other Party for the benefit of its creditors, or the appointment of a receiver, trustee, liquidator or custodian for all or a substantial part of the other Party's property, if such order of appointment is not vacated within sixty (60) days.
(d) the occurrence of any default, breach, event of default, or failure to perform by Owner under any agreement, instrument, document, certificate, filing, or other writing executed, delivered, recorded, or filed in connection with or pursuant to the transactions contemplated herein, which remains uncured by Owner within thirty (30) calendar days following Owner's receipt of written detailed notice of all the specifics of the claimed default or breach.
3.2 Early Termination Fee.
If the Agreement is terminated for any reason prior to the end of the Initial Bulk Term, Owner shall pay to Operator a termination fee (the "Early Termination Fee") in an amount equal to the greater of: (a) Operator's unrecovered capital investment as of the effective date of the termination; or (b) one hundred percent (100%) of the Bulk Service Fees payable for the remainder of the Initial Bulk Term. The Parties acknowledge and agree that the Early Termination Fee is a reasonable estimate of Operator's anticipated losses resulting from early termination and is not intended to be a penalty. The Early Termination Fee is due immediately upon termination. The terms of this Section 3.2 shall survive the expiration or any earlier termination of the Agreement.
3.3 Removal of Distribution Plant.
If at any time Operator ceases providing any of the Services at the Property, Operator may in its sole discretion remove all or certain components of its Distribution Plant, provided that under no circumstances will Operator remove any Inside Wiring. The terms of this Section 3.3 survive the expiration or any earlier termination of the Agreement.
4. PRICE ESCALATION.
After twelve (12) months from the Start-Up Date, Operator may increase the Bulk Services Fee once per year with at least ninety (90) days' advance notice to Owner. Any annual increase in the Bulk Service Fee shall be capped at the Consumer Price Index plus 200 points.
5. DOOR FEE.
If indicated in the Order Details of the Agreement, Operator will pay to Owner a one-time door fee in the amount listed. The Door Fee will be paid within sixty (60) days of the Effective Date, provided that all necessary access, equipment locations, easement recording, and any required approvals have been granted to Operator and the bulk services are active at the Property. The Door Fee is a one-time incentive and is not a credit, offset, or reduction against any amounts owed under the Agreement. The Door Fee is not refundable under any circumstance, except in the event of an early termination by Owner under Section 3, in which case the Door Fee shall be included in and treated as part of Operator's unrecovered capital investment for purposes of calculating the Early Termination Fee Amount.
6. REPRESENTATIONS AND WARRANTIES.
Owner represents and warrants that: (i) its officers, directors, members and owners of Units and/or other required parties have taken all requisite action to approve the execution, delivery and performance of the Agreement; (ii) it has the legal right and authority and has secured express authorization to execute the Agreement and grant the Easement on behalf of individual owners of Units in accordance with all pertinent conditions, corporate documents including all covenants, conditions and restrictions, or other applicable governance rules and procedures, and, upon request, Owner will provide Operator with evidence of such authority; (iii) the execution, delivery and performance of all terms of the Agreement constitute a valid exercise of its legal authority and shall not result in the breach of any agreements it has with third parties or violate any Legal Requirements; (iv) it has the legal right to grant Operator the rights provided to Operator herein and Owner owns and/or has the right to grant to Operator hereunder the exclusive right to use all parts of the System not owned by Operator (including any third party wiring, molding or components, if any; and (v) it is not and will not during the Term of the Agreement become a party to any agreement for the provision of multi-channel video programming services, high speed internet access services by means of a central signal distribution system or voice services, or for the Bulk provision of multi-channel video programming services, Internet access services or voice services with any party other than Operator.
7. INSURANCE; INDEMNIFICATION.
7.1 Operator's Insurance.
Operator covenants that it has liability coverage in an amount not less than One Million Dollars ($1,000,000.00) per occurrence up to two occurrences for Two Million Dollars ($2,000,000.00).
7.2 Indemnification.
Operator hereby agrees to hold harmless, indemnify and defend Owner from claims, causes of action, costs, suits or liabilities including attorneys' fees and costs at trial and any and all appeals, resulting from injuries or damages caused solely by the acts or omissions of Operator, its agents or employees, related either to the installation, maintenance, operation, or removal of the Distribution Plant or to the provision of the Services at the Property.
7.3 Owner's Insurance.
Upon Operator's request, Owner agrees to furnish certificates or other acceptable proof of insurance naming Operator as "Additional Insured" under a policy specifically covering all elements of the System and any other items provided by Operator to Owner for use on the Property up to their replacement value.
8. MISCELLANEOUS.
8.1 Disclaimer; Limitation of Liability.
EXCEPT AS EXPRESSLY STATED IN THE AGREEMENT, OPERATOR MAKES NO REPRESENTATIONS OR WARRANTIES, EXPRESS OR IMPLIED, REGARDING THE DISTRIBUTION PLANT OR THE SERVICES, INCLUDING ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON‑INFRINGEMENT. TO THE FULLEST EXTENT PERMITTED BY LAW, OPERATOR'S TOTAL AGGREGATE LIABILITY TO OWNER FOR DIRECT DAMAGES ARISING OUT OF OR RELATING TO THE AGREEMENT WILL NOT EXCEED AN AMOUNT EQUAL TO THE BULK SERVICE FEES PAID OR PAYABLE BY OWNER TO OPERATOR DURING THE TWELVE (12) MONTHS IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO THE CLAIM. THE FOREGOING LIMITATION SHALL NOT APPLY TO: (A) BODILY INJURY OR PROPERTY DAMAGE TO THE EXTENT CAUSED BY OPERATOR'S GROSS NEGLIGENCE OR WILLFUL MISCONDUCT; (B) OPERATOR'S BREACH OF ITS CONFIDENTIALITY OBLIGATIONS UNDER THE AGREEMENT; OR (C) OPERATOR'S INDEMNIFICATION OBLIGATIONS WITH RESPECT TO THIRD‑PARTY CLAIMS. NOTWITHSTANDING ANYTHING TO THE CONTRARY HEREIN, NEITHER PARTY SHALL BE LIABLE TO THE OTHER FOR ANY CONSEQUENTIAL, INCIDENTAL, SPECIAL, EXEMPLARY, OR PUNITIVE DAMAGES, INCLUDING LOST PROFITS, LOST REVENUES, LOST SAVINGS, OR LOSS OF GOODWILL, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES AND REGARDLESS OF THE THEORY OF LIABILITY.
8.2 Casualty.
If a casualty occurs and Owner elects to permanently cease operating the Property as a residential condominium complex, Owner may terminate the Agreement in its entirety, provided that Owner will remain responsible for payment in full of any unpaid portion of the Operator's capital investment not yet recovered,
8.3 Notices.
Any notice, demand, request or other communication from either Party to the other hereunder shall be in writing and addressed to the appropriate party at the addresses provided above and shall be sent and deemed received: (a) three business days after deposit in the U.S. Mail, postage prepaid, registered or certified mail, return receipt requested; (b) one business day after delivery on a business day to any nationally-recognized overnight delivery service for prepaid delivery on the next business day; or (c) on the date sent by email to the email address designated by the receiving Party for notices, provided that the sender receives a confirmation of receipt or acknowledgment from the receiving Party.
8.4 Applicable Law; Entire Agreement; Modification.
The validity, interpretation and legal effect of the Agreement shall be governed by and construed in accordance with the laws of the State of Alabama, except that the validity, priority, enforcement, and perfection of any real property interest granted under the Agreement shall be governed by the laws of the state in which the Property is located. These Terms and Conditions and the Agreement, including all Schedules and/or Exhibits attached thereto, constitute the entire agreement, whether written or oral, between the Parties, and supersede all previous agreements, understandings, commitments or representations concerning the subject matter. The Agreement may not be amended or modified in any way, and none of its provisions may be waived, except by a writing signed by the Party against whom the amendment, modification or waiver is sought to be enforced.
8.5 Venue.
The Parties acknowledge that Operator is headquartered in Baldwin County, Alabama and the Parties agree that all actions or proceedings whatsoever arising out of the interpretation, performance, or breach of the Agreement will be tried and litigated exclusively in the State courts located in the County of Baldwin, State of Alabama and/or the Federal courts located in Mobile County, Alabama. The aforementioned choice of venue is intended by the parties to be mandatory and not permissive in nature, thereby precluding the possibility of litigation between the parties with respect to or arising out of the Agreement in any jurisdiction other than that specified in this paragraph. Each party hereby waives any right it may have to assert the doctrine of forum non-conveniens or similar doctrine or to object to venue with respect to any proceeding brought in accordance with this paragraph, and stipulates that the State and Federal courts located in the Counties of Baldwin and/or Mobile as referenced above, shall have in personam jurisdiction and venue over each of them for the purpose of litigating any dispute, controversy, or proceeding arising out of or related to the Agreement. Notwithstanding the foregoing, any action or proceeding relating primarily to the validity, priority, enforcement, or perfection of a real property interest in the Property may also be brought in the state or federal courts having jurisdiction over the county in which the Property is located.
8.6 Waiver of Trial by Jury; Mediation.
(a) THE PARTIES DESIRE TO AVOID THE ADDITIONAL TIME AND EXPENSES RELATED TO A JURY TRIAL OF ANY DISPUTES ARISING HEREUNDER. THEREFORE, IN THE EVENT THAT NEGOTIATION AND MEDIATION AS SET FORTH BELOW ARE NOT SUCCESSFUL IN RESOLVING THE DISPUTE, IT IS MUTUALLY AGREED BY AND BETWEEN THE PARTIES HERETO, AND THEIR SUCCESSORS, HEIRS AND PERMITTED ASSIGNS, THAT THEY SHALL AND HEREBY DO WAIVE TRIAL BY JURY OF ANY CLAIM, COUNTERCLAIM, OR THIRD-PARTY CLAIM, INCLUDING ANY AND ALL CLAIMS OF INJURY OR DAMAGES, BROUGHT BY EITHER PARTY AGAINST THE OTHER ARISING OUT OF OR IN ANY WAY CONNECTED WITH THE AGREEMENT AND/OR THE RELATIONSHIP WHICH ARISES HEREUNDER. THE PARTIES ACKNOWLEDGE AND AGREE THAT THIS WAIVER IS KNOWINGLY, FREELY AND VOLUNTARILY GIVEN, IS DESIRED BY ALL PARTIES, AND IS IN THE BEST INTEREST OF ALL PARTIES.
(b) The Parties shall initially attempt in good faith to resolve any dispute arising out of or in any way connected with the Agreement and/or the relationship which arises hereunder by negotiations between representatives of the parties who have authority to settle the controversy. Either party may give the other party written notice of any dispute not resolved in the normal course of business. Within twenty (20) days after delivery of said notice, both parties shall meet at a mutually acceptable time and place (by mutual agreement, such meeting may be held by telephone) and thereafter as often as they deem necessary, to exchange relevant information and to attempt to resolve the dispute. Unless an extension is agreed to by the parties, if the dispute has not been resolved within sixty (60) days of the disputing party's notice, or if the parties fail to meet within twenty (20) days, either party may initiate the mediation of the controversy or claim as provided in Subparagraph 7.7(c) below.
(c) If any dispute has not been resolved by negotiation as provided in subsection (b), above, the Parties shall endeavor to resolve the dispute by mediation. Unless the Parties agree otherwise, the mediation shall be conducted by a neutral third-party mediator in accordance with the Commercial Mediation Rules of the American Arbitration Association. The neutral third-party mediator shall be selected by the mutual consent of the Parties to the Agreement. If the Parties encounter difficulty in agreeing on a neutral third-party mediator they will seek the assistance of the American Arbitration Association in the selection process. Unless otherwise agreed to by the Parties, the place of mediation shall be in Baldwin County, Alabama.
8.7 Severability.
Nothing contained in the Agreement or these Terms and Conditions shall be construed so as to require the commission of any act contrary to law, and wherever there is any conflict between any provision of the Agreement and any law, such law shall prevail; provided, however, that in the event of any such conflict, the provisions of the Agreement so affected shall be curtailed and limited only to the extent necessary to permit compliance with the minimum legal requirement, and no other provisions of the Agreement shall be affected thereby and all such other provisions shall continue in full force and effect.
8.8 Force Majeure.
Notwithstanding anything to the contrary herein, Operator shall not be liable to Owner or others for any failure to perform its obligations under the Agreement where such failure was caused by an act of God, accident, fire, lockout, strike or other labor dispute, riot or civil commotion, unavailability of video programming, failure of network equipment, wiring or infrastructure not owned and controlled by Operator, act of government or any other cause of similar or different nature which are beyond Operator's reasonable control, including, but not limited to, any problem associated with the construction, use and/or operation of Operator's network, Internet circuits owned by third parties, the public Internet or any problem associated with other equipment owned, operated, maintained or used by others.
8.9 Successors and Assigns.
The Agreement is binding upon and inures to the benefit of Owner and Operator and their respective successors and assigns. Operator may assign the Agreement, in whole or in part, without the consent of Owner, including in connection with (i) any merger, consolidation, change of control, corporate recapitalization, or other similar transaction; (ii) a sale, transfer, or other disposition of Operator's equity interests or assets; (iii) any collateral assignment, pledge, or grant of a security interest in the Agreement or the Distribution Plant in favor of Operator's lenders (and any foreclosure thereon); and (iv) any internal restructuring or reorganization of Operator or its affiliates. Upon the assumption in writing of Operator's obligations under the Agreement by any permitted assignee, Operator shall be released from all obligations accruing after the effective date of such assignment. Owner may not assign, transfer, sell, convey, or otherwise dispose of the Property or any interest in the Agreement without the prior written consent of Operator, which consent shall not be unreasonably withheld, conditioned, or delayed. Any permitted transfer of the Property must be made subject to the Agreement, and the transferee must expressly assume the Agreement in writing as a condition to Owner's release from obligations arising after the transfer. The rights, easements, and interests granted to Operator under the Agreement are and shall remain covenants running with the land and shall bind all present and future owners of the Property, and all persons claiming by, through, or under them. Owner acknowledges that the rights granted to Operator under the Agreement constitute interests in real property and are irrevocably coupled with such real property interests for all purposes.
8.10 Public Notices.
Owner agrees that Operator may cause the Agreement and/or the Easement or other instrument related to the Agreement to be filed or recorded among the public records in all necessary places in order that third parties shall be on notice that Operator owns the Distribution Plant, and that Owner has granted Operator the Easement and other rights in the Agreement. Each Party hereto agrees to execute and, if necessary, to file with the appropriate governmental entities, such documents, and take such further action, as the other Party hereto shall reasonably request in order to carry out the purposes of the Agreement.
8.11 Interpretation; Further Actions; No Agents or Joint Venture; Counterparts.
The Agreement has been fully reviewed and negotiated by the Parties hereto and their respective counsel. Accordingly, in interpreting the Agreement, the judicial doctrine according to which documents are to be construed against the drafter or provider of such document does not apply to the Agreement. The relationship of Owner and Operator is that of independent contractor, and accordingly, no Party hereto shall act as or be deemed an agent of the other Party hereto, or take any action or do anything that would create an obligation or liability of the other Party hereto or cause any third party to believe that such Party is an agent of the other Party hereto or that such Party is authorized to act on behalf of the other Party hereto. The Agreement may be executed in several counterparts, each of which shall be deemed an original, and all such counterparts together shall constitute but one and the same instrument. The Agreement shall be binding upon the faxing by each Party of a signed signature page thereof to the other Party.
8.12 No Liens, Non-Disturbance.
If any portion of the Property is currently encumbered by the lien of any mortgage, trust deed or other similar encumbrance, Owner hereby covenants and agrees to use its commercially reasonable, diligent efforts to provide Operator with a non-disturbance agreement (a "Non-Disturbance Agreement"), in form and substance reasonably agreeable to Operator, duly executed, acknowledged and delivered by Owner and the holder of such mortgage, trust deed or encumbrance, within thirty (30) days after the Effective Date. Such Non-Disturbance Agreement may be recorded by Operator at any time. Owner shall specifically exclude the System from any description of the Property pledged as security for any future indebtedness or obtain a Non-Disturbance Agreement signed by the lender in favor of Operator in connection therewith.
8.13 Confidentiality.
Neither Party hereto will, without the prior written consent of the other Party or except by court of competent jurisdiction or governmental order (in which event the disclosing Party shall so notify the other Party as promptly as practicable of such disclosure, shall allow the other Party the reasonable opportunity to participate in any meetings or court proceedings regarding the disclosure of such information and shall seek confidential treatment of any such information that is disclosed), disclose the Agreement or its terms to any person or entity other than the representatives investors, partners, trustees, directors, officers, employees, attorneys, accountants, contractors, prospective purchasers, purchasers, lenders or prospective lenders and agents of such Party and its affiliates who reasonably need to have access to the Agreement (provided the disclosing Party shall be responsible for any violation by such person or entity of the confidentiality provisions hereof); provided, however, that the recording of the Easement in the appropriate real property records pursuant to the Agreement does not constitute a violation of either Party's confidentiality obligations hereunder.
8.14 Legal Requirements.
Each Party will at all times comply with all statutes, laws, ordinances, orders, restrictions, rules, regulations, codes and the requirements of all federal, state, county and municipal governments or courts applicable to the Property, Owner's rights, duties, obligations and authority and Operator's operations at or with respect to the Property ("Legal Requirements").
8.15 Electronic Signatures
The Parties consent to conduct this transaction electronically and agree that the Agreement, these Terms and Conditions (whether provided by URL link or electronic attachment), and all related documents may be delivered, executed, and stored in electronic form. Electronic signatures, including those executed via DocuSign or similar platforms, are valid and binding to the same extent as handwritten signatures under the Electronic Signatures in Global and National Commerce Act (ESIGN) and the Uniform Electronic Transactions Act (UETA). Either Party may withdraw its consent to electronic transactions by written notice, which will apply prospectively only. For any document executed through DocuSign or a similar service, the Parties agree that the associated Certificate of Completion or audit trail shall be retained as part of the official record.
8.16 Survival.
This Section 8.16 and the following Sections shall survive the expiration or any earlier termination of the Agreement: 1.2, 1.3, 2.1, 2.2, 2.3, 3.1, 3.2, 3.3, 4, 5, 6, 7.1, 7.2, 7.3, 8.1, 8.2, 8.3, 8.4, 8.5, 8.6, 8.7, 8.8, 8.9, 8.10, 8.11, 8.12, 8.13, 8.14, and 8.15.