This is an Agreement between You - Customer of our Colocation and Telecommunications Services, and Corporate Technology a US company headquartered in California, U.S.A Legal detail about the company can be found in the 'Customer Service Contact Details' section of this document. For the sake of brevity, Corporate Technologies will be referred to as 'Corporate Technology' in this document.
As a Customer of our Services, you need to be aware that, when signing up for an account with Corporate Technology, you accept and agree to abide by our Telecommunications Services Terms of Service (this document) and our Acceptable Use Policy (AUP). The Order Form completion of the Service represents the electronic signing of these two documents.
The Customer of our Services should also be aware that when signing up for a Colocation and Telecommunications account with Corporate Technology, he/or she agrees to position data on our servers and make it accessible to the wide internet public. In this respect, the Customer understands and agrees that it is beyond the power of Corporate Technology to restrict any public access to this data and guarantee the security of the Customer's files. The Customer, therefore, is completely in charge of protecting his/her web content on our servers and should consider carefully each piece of information before uploading it to his/her newly allocated VPS server space. We highly recommend that Customers avoid publishing online personal data that could be abused.
CorporateTech is engaged in the business of providing customers with colocation, networking and telecommunications services through its telecommunications and datacenter facilities, including the facility (the “Facility" or “the Equipment Space” or the "Licensed Space") located at the address set forth in the attached Exhibit A to Colocation Application and Approval Agreement.
CorporateTech has the right to permit other telecommunications companies, its internal divisions and other customers to colocate with CorporateTech at the Facility.
Customer desires to enter into an agreement with CorporateTech for the use of the Facility for the express purpose of installing its equipment ("Equipment" or “Customer’s Equipment”) and connecting to associated CorporateTech or other approved network services, and CorporateTech desires to grant to Customer the right to use the Facility upon the terms and conditions set forth below.
Customer agrees not to employ any actions, equipment, tools or methods that may, in the sole judgment of CorporateTech, endanger or interfere with the personnel, property, systems or operations of CorporateTech or its other customers.
NOW, THEREFORE, in consideration of the following mutual exchange of promises and covenants, the parties agree as follows:
GRANT OF LICENSE:
(a) Subject to the terms and conditions contained herein, CorporateTech hereby grants to Customer a nonexclusive license to install, operate and maintain certain communications, information technology and other equipment of Customer in the Facility. Customer shall have certain use of the Equipment Space described in Exhibit A. Nothing herein shall be construed as the transfer or assignment of an interest in real estate.
(b) CorporateTech hereby reserves all rights not specifically granted to Customer, including, without limitation, the right to: (1) access and use the Licensed Space for its own use and for the use of its agents and customers; (2) grant additional licenses to other parties; and (3) exercise or grant other rights not inconsistent with the rights granted hereunder.
(c) This Agreement is expressly made subject to and subordinate to the terms and conditions of any underlying ground or facilities lease or other superior right by which CorporateTech has acquired its interest in the Facility or Licensed Space. Customer agrees to comply with any terms and conditions of such superior right. If the consent of the holder of such superior right is required in order for the parties to enter into this Agreement, then this agreement shall not become effective until such consent is obtained. If any action or consent is required of the Customer under the terms of such superior right, CorporateTech agrees to provide Customer, within thirty (30) days following receipt of Customer’s written request, copies of any documents evidencing any such superior rights.
(d) On sixty (60) days prior written notice to Customer, CorporateTech may relocate the Facility or any other portion of the Equipment Space designated for Customer’s Equipment to an equivalent or superior Facility or portion of the Equipment Space Following receipt of such notice, Customer shall cooperate with CorporateTech in relocating Customer’s equipment to the new Facility or Equipment Space. CorporateTech shall pay Customer’s reasonable relocation costs not to exceed $5,000.00 if CorporateTech initiates the request to relocate for its convenience. The parties will cooperate in good faith to prevent any interruption of the telecommunications services operated by Customer at the Facility and the transition to the new Facility.
(e) Customer shall not directly interconnect its Equipment to any other carrier’s, other customer’s or customer’s colocated equipment without prior, express written consent of CorporateTech.
TERM AND TERMINATION:
The initial term of this Addendum will begin the date we provide notice to Customer that the Equipment Space is available for Customer’s use. This Addendum will continue in effect for the entire Term chosen on the Service Agreement. Thereafter, this Agreement shall continue on an annual renewal until terminated by either party on at least sixty (60) days written notice prior to the end of the then-current Term. The foregoing notwithstanding, in no event shall this Agreement be construed to extend beyond the term of the underlying lease or other superior interest in the Facility. If the Customer desires to terminate this Agreement prior to the end of the agreed upon Term, Customer shall pay a termination charge as provided in Section 4(b) of the Agreement.
RECURRING AND NON-RECURRING CHARGES:
(a) Customer shall pay CorporateTech for use of the Equipment Space and the Facility charges shown on the Service Agreement herein referenced as ("Fees") attached hereto and incorporated herein by reference, shall be completed upon execution of this Agreement.
(b) In addition, Customer shall pay to CorporateTech, by Pay By Date on CorporateTech invoice, charges incurred for making modifications, network connections or improvements to the Facility or Equipment Space for Customer or for, energy sources or other utilities, and the costs of any work or service performed for, or facilities furnished to, Customer to a greater extent or in a manner more favorable to Customer than that performed for or furnished to others within the Facility. A preliminary estimate of these types of charges will be provided by CorporateTech and approved by the Customer prior to any work being performed. These charges are due within thirty (30) days of receipt of an invoice from CorporateTech. If any such charges are not paid when due, the amount due and payable shall be subject to a late payment charge equal to one and one-half percent (1.5%) of such amount per month.
USE OF THE FACILITY:
Customer shall use the Facility and its assigned Equipment Space solely for the purpose of installing, maintaining and utilizing the communications, information technology, other equipment and other personal property of Customer installed in the Facility pursuant to the terms of this Agreement for interconnection within the facilities and network of CorporateTech and other approved carriers and for no other purpose. Customer shall not use the Facility or the Equipment Space or allow access thereto or use thereof, except in accordance with the terms of this Agreement.
In its use of the Facility and the Equipment Space, Customer shall not interfere with, or connect its equipment to that of, any customer of CorporateTech, other carriers or any other user, tenant or Customer within the Facility without prior written approval of CorporateTech.
Except as otherwise provided herein, Customer’s Equipment shall remain the sole property of Customer, and CorporateTech’s equipment shall remain the sole property of CorporateTech. Customer expressly disclaims any right, title, or interest in or to any of CorporateTech’s equipment or property or that of any of CorporateTech’s affiliates, customers, agents or licensees, whether located in the Facility, the Equipment Space, or elsewhere.
ACCESS TO FACILITY; INSTALLATION AND MAINTENANCE OF EQUIPMENT:
(a) Unescorted Access – If escorted access is not required at the Facility, Customer shall have access 24 hours per day, 7 days per week for routine maintenance and installation of Customer’s equipment. Customer shall observe CorporateTech’s policies and procedures for access to such facility.
(b) Escorted Access – If escorted access or sign in and access validation with CorporateTech personnel is required at the Facility, Customer shall observe CorporateTech’s policies and procedures for such Facility
(c) Customer may request CorporateTech Remote Hands services where CorporateTech personnel will access and perform such services in lieu of customer direct access. Remote Hands services are best effort subject to CorporateTech policies, procedures, charges and response times according to published Remote Hands services for each facility. Customer assumes all liability as if Customer accessed the Facility or Equipment Space.
(d) Customer is required to submit a request for each employee or vendor who requires access to the Facility in order to be issued an access badge. Issuance and revocation of access badges shall follow CorporateTech policies and procedures. Each badge holder must read, accept and sign the Security Orientation form that details the Facility’s regulations and their responsibilities. Proper identification will be required when access is needed without a badge and may be denied at CorporateTech’s sole discretion, and may also be required with badge access. Badges are issued to individual parties and are not to be shared nor loaned.
(e) In the event of an emergency, disaster or other similar event, CorporateTech at its sole discretion, may deny Customer access for safety, environmental or other reasons. CorporateTech may also deny Customer access if a Customer is not in compliance with the terms of this Addendum including Section 15 or CorporateTech policies and procedures.
(f) When Customer uses equipment that is owned by CorporateTech and provided to Customer for Customer's use in the Equipment Space (referred to as "CorporateTech Provided Equipment"), Customer must be present or grant express permission according to CorporateTech policies and procedures for such permission at the Facility during (i.) installation of said CorporateTech Provided Equipment and (ii.) any scheduled or unscheduled maintenance or repair involving CorporateTech Provided Equipment that requires CorporateTech to gain access to Customer's Equipment Space.
(g) Customer will be responsible for configuring, providing, placing, installing, upgrading, adding, maintaining, repairing, and operating Customer’s Equipment, which actions Customer may engage in only to the extent permitted by, and subject to, the terms and conditions of this Addendum. Customer represents, warrants and covenants that it has 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 Customer’s Equipment as contemplated by this Addendum. Without limiting the foregoing, Customer will obtain and maintain throughout the Term consent from Customer’s subcontractors, third party providers, vendors, sublicensees and any other parties necessary to permit CorporateTech (including any contractors or others acting at CorporateTech’s request) to access Customer’s Equipment to provide the Services. CorporateTech will not have any responsibility for any loss or damage to Customer’s Equipment except within the terms of this Addendum.
Customer shall be liable for and shall pay all taxes and/or surcharges related to the grant of license under this Addendum and all taxes and/or surcharges levied against the personal property owned by Customer and located in or about the Facility, except taxes measured by the income of CorporateTech.
ACCEPTANCE OF FACILITY AND THE EQUIPMENT SPACE:
CorporateTech will notify Customer that the Equipment Space is available for Customer’s use (“Availability Date”). Customer will schedule an acceptance walk-thru with CorporateTech. Upon completion of the acceptance, the Term shall commence and billing shall begin. If Customer fails to schedule the acceptance Customer shall be deemed to have accepted the Equipment Space and billing shall begin effective as of the Availability Date.
MAINTENANCE OF PREMISES:
Customer, at its own expense, shall protect, maintain and keep in good order the Equipment Space and any equipment in the Equipment Space, and shall ensure that neither Customer nor its employees, agents, contractors or invitees damage any part of the Facility, the Equipment Space, and/or any equipment located in or about the Facility and shall not allow any debris, paper products, food or drink, excess equipment, office equipment or storage of supplies in the cabinet or cage. Customer shall not maintain or permit any nuisances or violations of governmental laws, rules, regulations, or ordinances with respect to the Facility. Customer shall ensure that neither it nor its employees, agents, contractors, or invitees shall permit any explosive, flammable, or combustible material or any hazardous or toxic materials, as defined under applicable state, federal or local laws, rules, regulations, or ordinances to be located in or about the Facility, except in compliance with all applicable laws, rules, regulations, and ordinances. Customer acknowledges that there is no storage area provided by CorporateTech. CorporateTech shall not accept Customer shipped equipment unless provided for in a specifically designated datacenter with appropriate facilities or by prior written arrangement according to CorporateTech policies and procedures. Customer shall be responsible for following all security procedures in place at the Facility and shall be liable for any loss or damage to its, CorporateTech’s or other parties’ equipment due to Customer not following such procedures.
CORPORATETECH SHALL HAVE NO DUTY TO MONITOR, MAINTAIN OR CARE FOR THE EQUIPMENT INSTALLED BY CUSTOMER UNLESS CORPORATETECH EXPRESSLY OFFERS SUCH SERVICES ACCORDING TO ITS POLICIES, PROCEDURES AND SERVICE OFFERING IN A SPECIFICALLY DESIGNATED DATACENTER.
SHIPMENT OF CUSTOMER EQUIPMENT WILL NOT BE RECEIVED. Customer must make arrangements with their shipping provider to take delivery of equipment unless provided for in the policies and procedures for a specifically designated datacenter.
INSTALLATION AND ALTERATIONS:
Without the prior written approval of CorporateTech, Customer shall not commence any installation, interconnection, addition or alteration to the Facility, or the Equipment Space, or Customer’s Equipment, or undertake any upgrade or modification to Customer’s equipment, that would in any way result in an increased cost to CorporateTech, or that might affect the use of the Facility or other equipment by CorporateTech or any other Customer. Whenever CorporateTech’s approval of work is required, Customer shall deliver a written request for consent to CorporateTech, specifying the names and addresses of the desired contractors or subcontractors, along with a description of the services to be performed, and the desired dates and times of service. CorporateTech shall have the right to approve or disapprove any contractor or subcontractor selected for work in the Facility. In addition, if approval of any contractor or subcontractor is required by the terms of an agreement with a lessor or other party holding a superior interest in the Facility, CorporateTech shall also submit the written request to such other party for approval, and Customer’s use of contractors shall be subject to the landlord’s approval as set forth in the underlying lease.
Customer shall pay or cause to be paid all costs and charges (a) for work done by Customer or caused to be done by Customer in or about the Facility; (b) for all materials furnished for or in connection with such work; and (c) for alterations or additions to the Facility or equipment that require CorporateTech to incur costs. Customer shall indemnify CorporateTech against and hold CorporateTech and the Facility free and clear of and from all mechanics’ liens and claims of liens, and all other liabilities, liens, claims, demands, costs and expenses of any kind on account of such work done by or on behalf of Customer. If any such lien is filed at any time against the Facility, or any part thereof, Customer shall cause such lien to be discharged of record within ten (10) days after the filing thereof, except that if Customer desires to contest such lien, it will furnish CorporateTech, within such ten-day period, security reasonably satisfactory to CorporateTech of at least 150% of the amount of the claim, plus estimated costs and interest. If a final judgment establishing the validity or existence of a lien for any amount is entered, Customer shall pay and satisfy the same without delay. If Customer fails to pay any charge for which a lien has been filed, and has not given CorporateTech security as described above, CorporateTech may, at its option, pay such charge and related costs and interest, and the amount so paid, together with reasonable attorney’s fees incurred in connection with such lien, will be immediately due from Customer to CorporateTech. Nothing contained in this Addendum shall be deemed to constitute a consent or agreement of CorporateTech to subject the Facility to liability under any mechanics’ or other lien law. If Customer receives notice that a lien has been or is about to be filed against the Facility, or any action affecting title to the Facility has been commenced on account of work done by or on behalf of, or materials furnished to or for Customer, Customer will immediately give CorporateTech written notice of such notice. At least fifteen (15) days before commencement of any work (including but not limited to any maintenance, repairs, alterations, additions, improvements or installations) in or to the Facility or the Equipment Space by or for Customer, Customer will give CorporateTech notice of the proposed work and the names and addresses of the persons supplying labor and materials for the proposed work. CorporateTech shall have the right to post notices of non-responsibility or similar notices at the Facility and in the Customer’s lease space in order to protect the Facility against any such liens.
Customer shall not modify or alter the cabinet or any other equipment, cage or facilities provided to it by CorporateTech. Customer will also not change or alter any locks or codes on the cabinet(s), cage or other facilities provided by CorporateTech without CorporateTech’s prior written consent. If Customer installs its own lock(s) on any of the cabinet, cage and/or other facilities provided by CorporateTech to house Customer’s Equipment, Customer will provide CorporateTech with a key(s) or codes to such lock(s).
CorporateTech shall use commercially reasonable efforts to make available to Customer electric power circuit(s) at a level not less than the level approved in Appendix A. Customer shall adhere to current National Electric Code (NEC) standard of 80% utilization of power circuit(s) provided and CorporateTech cannot guarantee performance of these circuits if this standard is exceeded. If Customer overloads the capacities of its circuits, CorporateTech may either (a) require Customer to reduce its usage or draw on the circuits; (b) charge Customer for all costs, expenses and fees for the additional use of the circuits or require additional circuits at CorporateTech’s then-current power pricing; and/or (c) suspend and/or terminate any or all Services per Section 15 of this Addendum. Customer shall be solely responsible for power capacity and NEC standards compliance. In the event that Customer shall require electrical capacity in excess of the initial capacity ordered, then upon request, and subject to the availability of additional electrical capacity in the CorporateTech Facility and the ability to the cool the CorporateTech Facility, as determined by CorporateTech, in its sole and absolute discretion, CorporateTech shall make additional electric power available to Customer.
(a) During the term of this Addendum, Customer shall, at Customer’s sole cost and expense, keep in full force and effect the following insurance:
- Standard form of property insurance insuring against the perils of fire, vandalism, malicious mischief, extended coverage (“all-risks”) and sprinkler leakage. This insurance policy shall be on all property owned by Customer, for which Customer is legally liable, or that was installed at Customer’s direction or expense, and which is located in the Facility, in an amount which comprises full replacement cost.
- Commercial general liability insurance insuring Customer against any liability arising out of the Addendum, use, occupancy, or maintenance of the Facility and all areas appurtenant thereto. Such insurance shall be in the amount of $2,000,000 combined single limit for injury to or death of one or more persons in an occurrence and for damage to tangible property (including loss of use) in an occurrence. The policy shall insure the hazards of the Facility, Customer’s operations thereon, and the operations of all independent contractors, and shall include contractual liability (covering the indemnity of Customer contained in this Addendum).
- Workers’ compensation as required by applicable state law, and employers’ liability insurance with minimum limits of $1,000,000 per occurrence. If the Facility is located in a “monopolistic” state, Customer shall carry “stop gap” coverage with minimum limits of $1,000,000 per occurrence.
- Business automobile insurance in an amount not less than $1,000,000 per occurrence covering all autos used or parked at the Facility, including owned, non-owned and hired autos.
(b) Anything in this Addendum to the contrary notwithstanding, CorporateTech and Customer each waives all rights of recovery, claim, action or cause of action against the other, its agents (including partners, both general and limited), trustees, officers, directors, agents and employees, for any loss or damage that may occur to the Facility, or any improvements thereto, or any property of such party therein, arising from any cause covered by any insurance carried by such party, including negligence of the other party. CorporateTech and Customer shall, from time to time, cause their respective insurers to issue appropriate waiver of subrogation rights endorsements to all insurance policies carried in connection with the Facility or the contents.
(c) All the insurance required of Customer under this Addendum shall: (1) be issued by an insurer with an A M Best rating of VII or better, (2) contain a provision that the insurance provided to Customer shall be primary and noncontributing with any other insurance available to CorporateTech, and (3) contain an endorsement requiring sixty (60) days written notice from the insurance company to both Customer and CorporateTech before cancellation or material reduction in the coverage, scope or amount of any policy. Each liability insurance policy shall list CorporateTech, its officers, directors and employees as additional insureds. Each policy, or a certificate of the policy acceptable in form and content satisfactory to CorporateTech, shall be deposited with CorporateTech within thirty (30) days after execution of this Addendum, and on renewal of the policy not less than thirty (30) days after expiration of the initial term of the policy.
LIEN FOR FEES:
To secure the payment of all Fees due and to become due hereunder, and the faithful performance of all the other covenants of this Addendum required by Customer to be performed, Customer hereby gives and grants to CorporateTech an express contractual lien on, and security interest in and to, all property, chattels or merchandise owned by Customer which may be placed in the Facility (except such part of such property as may be exchanged, replaced or sold from time to time in the ordinary course of Customer’s operations), and all proceeds there from, and also upon all proceeds of any insurance which may accrue to Customer by reason of damage to or destruction of any such property. Such lien may be subordinate to a security interest in Customer’s equipment held by Customer’s lender if such security interest is properly perfected on the date the equipment is installed in the Facility. Customer must provide CorporateTech with documentation establishing such prior lien at the time of signing this Addendum or of installing encumbered equipment, whichever is later. Upon request by CorporateTech, Customer agrees to execute and deliver to CorporateTech a financing statement in form sufficient to perfect the security interest of CorporateTech in the aforementioned property and proceeds thereof under the provisions of the Uniform Commercial Code in force in the state where the property is located. All exemption laws are hereby waived by the Customer. Upon the occurrence of an Event of Default by Customer as defined in Section 15 herein, CorporateTech may, in addition to any other remedies provided herein, enter upon the Facilities and take possession of any and all such goods, wares, equipment, fixtures, improvements and other personal property owned by Customer and situated in the Facility, without liability for trespass or conversion and sell the same at public or private sale, with or without having such property at the sale, pursuant to state law in force in the state where the property is located.
ASSIGNMENT AND SUBLICENSING:
This Addendum may be freely assigned by CorporateTech. Customer shall not sublicense, sell, assign, pledge, encumber or otherwise transfer by operation of law or otherwise all or any part of Customer’s rights or obligations under this Addendum, nor permit any other person to occupy or use the Facility of the Equipment Space or any portion thereof, without first obtaining CorporateTech’s prior written consent, which consent may be withheld in CorporateTech’s sole discretion. Any attempted sale, assignment, encumbrance or other transfer of all or any part of this Addendum by Customer shall be void and shall constitute a breach of this Addendum.
SERVICES PROVIDED BY CORPORATETECH:
CorporateTech shall make available the services listed on the Colocation Application (Exhibit A) for Customer’s use of the Facility. Costs of labor and materials necessary for Customer to make use of the services to be provided by CorporateTech hereunder, and the incremental additional cost, if any, to make such services available to Customer, shall be Customer’s responsibility.
TERMINATION IN THE EVENT OF CASUALTY OR CONDEMNATION:
In the event of any damage, destruction or condemnation of the Facility that renders the Facility unusable, unsafe or inoperable, CorporateTech shall have the right to terminate this Addendum and all of its duties and obligations hereunder by giving written notice to Customer within ninety (90) days after such damage, destruction or condemnation.
EVENTS OF DEFAULT:
(a) The occurrence of any one or more of the following events shall constitute a default and breach of this Addendum by Customer (“Event of Default”):
- Customer’s failure to pay when due any recurring monthly charges, initial non-recurring charges, or any other amounts when due, if such failure continues for a period of five (5) business days after notice of nonpayment has been given to Customer.
- Customer’s failure to perform or observe any other term, covenant or condition of this Addendum, if the failure continues for thirty (30) days after notice has been given to Customer.
- Customer’s abandonment of the Facility and/or Equipment Space, if the failure continues for thirty (30) days after written notice has been given to Customer.
(b) Upon the occurrence of any Event of Default, CorporateTech may, without notice or demand and in addition to any other right or remedy available at law or equity, terminate this Addendum, deny Customer access and remove all of Customer’s Equipment from the Facility and store the same at Customer’s sole cost and expense. Any damages occasioned by such removal and/or storage are expressly waived by Customer. Any equipment so removed will be returned to Customer upon payment in full of all removal and storage costs, all past due license fees and charges, and all applicable late payment charges. If within thirty (30) days following such equipment removal, Customer has not requested the return of its equipment and paid any sums owed, then CorporateTech may exercise all rights of ownership over such equipment including the right to sell same and retain possession of any sale proceeds. CorporateTech’s exercise of any remedies provided for in this section shall be without prejudice to any other remedies CorporateTech may have available herein or by law.
SURRENDER OF THE PREMISES:
Within fifteen (15) days after expiration or early termination of this Addendum, Customer shall remove its equipment from the Facility at Customer’s sole cost and expense. Customer shall surrender the Equipment Space in good condition, reasonable wear and tear excepted. If Customer fails to remove its equipment and other personal property from the Facility within fifteen (15) days after the date of expiration or other termination, CorporateTech may remove and store such items at Customer’s sole cost and expense and sell same. In addition, upon expiration or other termination of this Addendum for any reason, Customer shall, at its sole cost and expense, remove all alterations, additions, and improvements made or installed by Customer and restore the Facility to the same good condition as existed when Customer first installed equipment, reasonable wear and tear excepted.
RULES AND REGULATIONS:
Customer and its employees, agents, contractors, and invitees shall abide by and observe all reasonable rules and regulations as may be promulgated from time to time by CorporateTech or CorporateTech’s lessor for the maintenance and use of the Facility. Notice of the rules and regulations will be posted or provided to Customer. CorporateTech may periodically amend or supplement the rules and regulations at its sole discretion.
Customer expressly agrees to execute any amendment to this Addendum which may be required by a holder of a superior interest in the Facility, which does not materially and adversely affect Customer’s rights under this Addendum, within fifteen (15) days of a written request by CorporateTech or CorporateTech may terminate this Addendum on notice to Customer.
This Addendum is nonbinding until the Colocation Application (Exhibit A) is approved by CorporateTech and this Addendum is executed by CorporateTech.