Collocation Service Agreement

This Collocation Service Agreement ("Agreement") is entered into by and between IPColo, LLC ("IPColo") and the undersigned ("Customer") (collectively known as the "Parties"). The terms and conditions set forth in the Agreement apply wholly to all collocation services provided by IPColo.  In consideration of the mutual agreements and covenants set forth herein, the parties agree as follows:

 

1.         PERMISSION

 

a.       IPColo hereby grants to Customer permission to occupy the Space, subject to the terms and conditions of this Agreement. 

b.      IPColo provides the space to Customer, and Customer accepts the space from IPColo, "as is." 

c.       Permission is granted to Customer for the sole purpose of installing, maintaining, and operating the equipment.

d.      Only those persons listed on Addendum C may access the premises, and only in accordance with the provisions of Section 7 of this Agreement.

e.      The grant of permission shall in no way limit IPColo’s right to maintain and operate the premises as will best enable it to fulfill its own needs, service requirements, or obligations.

 

2.                  SERVICES

 

Subject to the terms and conditions of this Agreement, IPColo shall provide to Customer the services and power set forth on Addendum D.

 

3.         FEES, CHARGES AND BILLING

 

a.       All fees associated with this Agreement are set forth in the Collocation Schedule attached as Addendum E.

 Customer shall pay to IPColo all fees due and owing upon receipt of any invoice from IPColo (the "Due Date"). 

b.      If Customer fails to pay amounts invoiced by IPColo within fifteen (15) days of the Due Date, all such unpaid amounts shall accrue interest from the Due Date at the lesser of five percent (5%) per month or the maximum rate allowed by law.  Fees or charges for any fractional portion of a month shall be computed as one thirtieth (1/30) of the basic monthly payment multiplied by the appropriate number of days. If not paid for within twenty (20) days of the Due Date, the equipment can be taken off the network.

c.       Any service disconnection or suspension shall require a $50 reconnection fee.

 

4.         INSTALLATION, MAINTENANCE AND INSPECTIONS

 

a.       Customer shall be responsible for the installation, maintenance, connection and hookup (including making any arrangements with any telephone carriers, as may be required by Customer) of the Equipment, except as may be set forth on Addendum D.  Customer will be solely responsible for its acts, or those of its agents or third-party contractors, and liable for any damages caused by such party to the Equipment, the Premises, or its contents.

b.      Customer shall provide to IPColo a minimum of 24-hours notice prior to any maintenance, repair or installation of Equipment.  Customer's routine maintenance of the Equipment shall be scheduled between the hours of 12:00 a.m. and 6:00 a.m. unless prior approval is received from IPColo.  If Customer experiences an emergency, Customer shall immediately notify IPColo prior to performing any repair or maintenance necessary to correct the emergency situation.

c.       IPColo's employees or agents are hereby authorized, without subjecting IPColo to any liability suspend Customer’s work operations in and around the space if, in the discretion of such employee or agent, any hazardous conditions arise on, from, or affecting the premises or the space.

d.      Customers shall at all times conduct its work operations, and maintain the space, in a safe manner.

5.           REMOVALS AND RELOCATION OF EQUIPMENT

 

a.       IPColo may require Customer to relocate the equipment within the premises upon twenty (20) days’ prior written notice to Customer; provided that the site of relocation shall afford comparable environmental conditions for the equipment and comparable accessibility to the equipment.  Notwithstanding the foregoing, IPColo shall not arbitrarily or capriciously require Customer to relocate the equipment.  If the equipment is relocated according to this Section 5(a), the cost of relocating the Equipment and improving the Space to which the Equipment will be relocated shall be borne by IPColo. 

b.      If at any time the equipment causes unacceptable interference to existing or prospective IPColo customers or their equipment, IPColo may require Customer to remove or relocate the equipment at Customer's sole expense.  If Customer is unable to cure such interference by relocating the equipment, IPColo may terminate this Agreement without further obligation to Customer under this Agreement.

c.       In the event of an emergency, as determined in IPColo’s reasonable discretion, IPColo’s work shall take precedence over any and all Customer operations, and IPColo may rearrange, remove, or relocate the equipment without any liability to IPColo  Notwithstanding the foregoing, in the case of emergency, IPColo shall provide customer, to the extent practicable, reasonable notice prior to rearranging, removing, or relocating the equipment. 

d.      Customer shall not remove any of the equipment from the premises without the prior written authorization of IPColo  Customer will provide IPColo with written notification a minimum of two (2) days before Customer wishes to remove any of the equipment from the premises.  Before authorizing the removal of the equipment, IPColo will verify that Customer has no payments due.  Once IPColo authorizes the removal of the equipment from the premises; Customer will remove such equipment, and will be solely responsible to bring appropriate packaging and moving materials.  If Customer uses an agent or other third party to remove the equipment, Customer will be solely responsible for the acts of such party, and any damages caused by such party to the equipment or otherwise.

           

6.         INSURANCE

 

IPColo shall not insure or be responsible for any loss or damage to property of any kind owned or leased by Customer or its employees, servants or agents.  Any policy of insurance covering the property owned or leased by Customer against loss by physical damage shall provide that the underwriters have given their permission to waive their rights of subrogation against IPColo, its affiliates and their directors, officers, partners, and employees, as well as their subsidiaries, and their respective directors, officers, partners, and employees.

 

7.         ACCEPTABLE USE

 

Customer's use of the premises, or the equipment located at the premises, must at all times conform to the laws of the United States of America, the laws of the states in which Customer is doing business, and the IPColo Acceptable Use Policy.

 

8.            INDEMNIFICATIONS AND LIABILITY

 

a.       Customer shall defend, hold harmless and indemnify IPColo and its affiliates, officers, partners, agents and employees from all claims, demands, actions, damages, judgments, expenses, costs (including reasonable attorney’s fees), and liabilities arising out of Customer’s access to or use of the premises or the space. 

b.      IPColo assumes no liability for damage to, or loss of, the equipment or Customer property resulting from any cause whatsoever, except as a result of IPColo's gross negligence or willful misconduct.

c.       IPColo shall not be liable to Customer for any indirect, incidental, consequential, exemplary, reliance or special damages, including damages for lost profits, regardless of the form of action, whether in contract, indemnity, warranty, strict liability, or tort, including negligence of any kind with regard to any conduct under this Agreement.

 

9.            ASSIGNMENT

 

IPColo reserves the right and Customer grants the right for IPColo to assign the rights and responsibilities of this Agreement to a third party.  Customer may not assign its rights or delegate its duties under this Agreement, either in whole or in part, without the prior written consent of IPColo. Any attempted assignment or delegation without such consent will be void.  This Agreement will bind and inure to the benefit of each party's successors and permitted assigns.

 

10.       DEFAULT AND REMEDIES

 

a.       The occurrence of any of the following shall be considered a default (each a "Default") by Customer under this Agreement:

(i)                   Customer fails to make any payment(s) due pursuant to this Agreement for a period of twenty (20) days after the Due Date;

(ii)                 Except as provided in 12(a)(iv), Customer violates, or fails to perform or fulfill any covenant or provision of this Agreement, and any such matter is not cured within ten (10) days after notification from IPColo;

(iii)                Customer enters into bankruptcy, dissolution, financial failure or insolvency, sale or merger with another person, corporation or entity, unless approved in advance by IPColo

b.   In the event of a default by Customer, Customer agrees to pay immediately to IPColo all amounts then owing plus any and all reasonable costs incurred by IPColo in the enforcement of this Agreement, including reasonable attorney’s fees and IPColo may, in its sole discretion, terminate this Agreement.

c.   Customer hereby grants a security interest in favor of IPColo to secure the obligations of Customer under this Agreement.  IPColo may, at such time as it determines appropriate, file a UCC 1 Financing Statement in such places as it determines to evidence the security interest granted by Customer to IPColo under this Agreement giving IPColo a security interest in the Equipment. If Customer is in default at the expiration or sooner termination of this Agreement arising from Customer's failure to cure any default hereunder following the lapse of all applicable cure periods, the Equipment shall remain on the premises and IPColo shall have the right to sell or retain possession of and use (or, at IPColo's option, remove and store at Customer's expense) all or any portion of the equipment without any cost, obligation or liability of IPColo to Customer. 

11.          NOTICES

           

            All notices, consents and communications pursuant to this Agreement shall be in writing and shall be deemed to have been duly given as of the date of delivery or mailing.  Mailed communications shall be sent by first class postage prepaid, certified or registered mail, or by a generally recognized overnight delivery system.

 

12.          TERMS AND TERMINATION. 

 

a.       The term of this Agreement is for one (1) year commencing from last date of execution of this Agreement by IPColo or Customer (the "Commencement Date").  This Agreement shall automatically renew for additional one (1) year terms on the annual anniversary of the Commencement Date unless either party provides to the other written notice of non-renewal at least thirty (30) days prior expiration of the then existing term.

b.   Upon the effective date of expiration or termination of this Agreement:

(i)                   IPColo will immediately cease providing the Services;

(ii)                 Any and all payment obligations of Customer under this Agreement will become due immediately; and

(iii)                Customer will remove from the premises all of the equipment and any other Customer property on the premises within ten (10) days of IPColo's request (but only after Customer receives authorization from IPColo as provided in Section 5(d)) and return the space to IPColo in the same condition as it was prior to Customer's installation of its equipment.  If Customer does not remove such property (or cannot remove such property because of payments due to IPColo) within such ten (10) day period, then IPColo may move any and all such property to storage and charge Customer for the cost of such removal and storage, without being liable for related damages.  If Customer does not pay all amounts due to IPColo and remove such property from the premises or storage within thirty (30) days of such IPColo request, IPColo may liquidate the property in any reasonable manner, without being liable for related damages.

c.   Should Customer or any permitted assignee, sub lessee or licensee of Customer fail to vacate the space or any part thereof after the expiration or sooner termination of this Agreement, such failure to vacate, unless otherwise agreed to by IPColo in writing, shall automatically increase the fees payable under this Agreement to 150% of the amount payable immediately prior to such breach.  Customer shall also be liable to IPColo for all damages that IPColo suffers because of any holding over by Customer and Customer shall indemnify IPColo from and against all claims made by any other customer or prospective customer against IPColo resulting from delay by IPColo in delivering possession of the Space.

d.   If all of the premises (or if less than all, but IPColo reasonably determines in good faith that the remaining portion will not permit it to license the remaining portion of the premises) shall be acquired by the right of condemnation or eminent domain for any public or quasi-public use or purpose, or sold to a condemning authority under threat of condemnation or in lieu thereof, then this Agreement shall cease and terminate as of the date of title vesting in such proceeding (or sale) and all fees and other charges due under this Agreement shall be paid up to that date.

 

13.       GENERAL PROVISIONS.

 

a.       Liens and Encumbrances; Subordination.  Customer shall not, and has no power, authority or right, to create, and shall not permit, any lien or encumbrance, including, without limitation, tax liens and mechanics’ liens, on the equipment, space or premises. In no event shall IPColo subordinate or be required to subordinate its interest in the premises to any person.

b.      Entire Agreement.  This Agreement constitutes the entire Agreement between IPColo and Customer pertaining to the subject matter and geographic locations set forth in this Agreement, and supersedes any prior Agreements, whether written or oral.

c.       Force Majeure.  Except for the obligation to pay money, neither party will be liable for any failure or delay in its performance under this Agreement, due to any cause beyond is reasonable control, including acts of war, acts of God, earthquake, flood, embargo, riot, sabotage, labor shortage or dispute, governmental act or failure of the Internet, provided that the delayed party: (a) gives the other party prompt notice of such cause, and (b) uses its reasonable commercial efforts to correct promptly such failure or delay in performance.

d.      Relationship of Parties.  IPColo and Customer are independent contractors and this Agreement will not establish any relationship of partnership, joint venture, employment, franchise or agency between IPColo and Customer.  Neither IPColo nor Customer will have the power to bind the other or incur obligations on the other's behalf without the other's prior written consent, except as otherwise expressly provided in this Agreement.

e.      Amendment.  This Agreement may not be amended or modified in any manner except in a writing signed by a duly authorized representative of each party.

f.        Warranty.  IPColo and Customer warrant that their respective undertakings will be performed in a professional manner in accordance with this Agreement.  IPColo makes no other warranty under this agreement, express or implied, including any warranty of merchantability or fitness for a particular purpose.

g.      Governing Law.  This Agreement shall be governed by and construed under the substantive laws of the State of Florida.  Jurisdiction and venue for purposes of any litigation in connection herewith shall be in the Orlando, Florida.  In the event of litigation hereunder, the prevailing party shall be entitled to an award of reasonable attorney's fees and court costs at all trial and appellate court levels.

h.      Dispute Costs.  In the event of litigation between the parties to enforce or interpret this Agreement, the prevailing party in any such action shall be entitled to recover reasonable costs and expenses of suit, including, without limitation, court costs, attorneys' fees, and discovery costs.

i.         Counterparts.  This Agreement may be signed in counterparts with the same force and effect as if required signatures were contained in a single, original instrument.

j.        Customer's Estoppel Certificate.  Within ten (10) days after request by IPColo, Customer shall execute, acknowledge and deliver to IPColo a statement in writing certifying, if such is the case, that this Agreement is unmodified and in full force and effect (or if there have been modifications that the same is in full force and effect as modified); the day of commencement of this Agreement; the date for which fees and other charges have been paid; any alleged defaults and claims against IPColo and providing such other information as shall be reasonably requested.