Data Center Colocation

(formerly Data Center Services)

Online Service Document

 

I.          SERVICE DESCRIPTION

 

Data Center Colocation comprises support, network connectivity, physical access and/or additional services, features, and hardware selected by Customer and identified in a Customer-executed Service Agreement, Service Attachment, and/or Service Order, as applicable. Data Center Colocation provides colocation in a Company Facility in U.S. Mainland of Customer-provided Internet servers, data networking equipment and/or voice service equipment which accesses the Company's voice and data network services, to which Customer must subscribe.

 

1.         Three types of Data Center Colocation are available: Data Center Colocation at a Premium Data Center, at an Advanced Data Center and at a Standard Data Center.

 

1.1       Data Center Colocation at a Premium Data Center

 

In order to subscribe to Colocation at a Premium Data Center, Customer must subscribe to either: i) a minimum of one (1) Mbps of Company’s data services (for example, IP services (Data Center Bandwidth), Frame Relay Service, asynchronous transfer mode (ATM) service , Domestic Private Line Services, or Private IP Service), or ii) Voice Services (i.e., access to Company’s voice network) associated with Data Center Colocation at a Premium Data Center for the first three (3) or fewer half or standard cabinets. Customer must subscribe to one (1) additional Mbps of such Company services for each additional half or standard cabinet above the initial three purchased by Customer.

 

1.2       Data Center Colocation at an Advanced Data Center

 

In order to subscribe to Data Center Colocation at an Advanced Data Center Customer must subscribe to either: i) a minimum of one (1) Mbps of Company’s data services (for example, IP services (Fast Ethernet Services) Frame Relay Service, ATM service , Domestic Private Line Services, or Private IP Service), or ii) Voice Services (i.e., access to Company’s voice network), associated with Data Center Colocation at an Advanced Data Center for the first three (3) or fewer cabinets. Customer must subscribe to one (1) additional Mbps of such Company services for each additional cabinet above the initial three purchased by Customer.

 

1.3       Data Center Colocation at a Standard Data Center

 

In order to subscribe to Data Center Colocation at a Standard Data Center Customer must subscribe to either: i) a minimum of one (1) Mbps of Company’s data services (for example, IP services (Internet Dedicated access bandwidth), Frame Relay Service, ATM service , Domestic Private Line Services, or Private IP Service), or ii) Voice Services (i.e., access to Company’s voice network), associated with Data Center Colocation at a Standard Data Center for the first three (3) or fewer cabinets. Customer must subscribe to one (1) additional Mbps of such Company services for each additional cabinet above the initial three purchased by Customer.

 

II.         DEFINITIONS

 

In addition to Online Definitions, the following definitions apply.

 

“Equipment” is Customer-provided Internet servers, data networking equipment and/or voice service equipment installed at a Facility for use with Data Center Colocation.

 

“Facility” or “Data Center” is the Company’s physical location or data center in which Equipment storage space will be made available to Customer for installation and use of Equipment.

 

“Measured Use Level” To calculate Customer’s Measured Use Level, Company samples Customer’s Internet Access service usage periodically throughout a monthly period. Customer’s usage at the 95th percentile of samples (i.e., samples representing the highest 5 percentiles of usage are discarded) is Customer’s Measured Use Level. For example, if Company took 100 samples of Customer’s 10 Mbps Burstable Service level (within the 100 Mbps Burstable Service) in a given month and Customer’s highest 6 samples were 17.67 Mbps, 17.05 Mbps, 15.72 Mbps, 13.22 Mbps, 12.25 Mbps, and 11.39 Mbps, Customer’s Measured Use Level would be 11.39 Mbps for that monthly period.

 

“Service Order”: is an order for Service placed by Customer with its Company account representative attendant to a Data Center Colocation Service Attachment. The Service Order constitutes the binding commitment of Customer to purchase the requested service. Company’s activation of service constitutes Company’s acceptance of Customer’s Service Order, unless another mode of acceptance is expressly stated. Company reserves the right to reject any Service Order for any reason, including without limitation, Company’s obligations under applicable laws, regulations, directives, governmental authority or orders, third party contracts, or Customer’s failure to meet Company’s credit approval requirements. In addition, Company may reject a Service Order in the event (a) of the inability or impracticality of providing such service in a particular geographic area in which Company does not have sufficient presence, capacity, corporate infrastructure, or Network technical infrastructure to effectively support the requested service; or (b) Company no longer commercially offers the service.

 

“Space” is the Equipment storage space (Space) in which storage devices such as racks, cabinets, and cages shall reside and which will be made available to Customer.

 

III.        FEATURES AND OPTIONS

 

1.         Hands and Eyes Support.

 

1.1       Availability. The first two hours of technical support at a Data Center (Hands and Eyes Support) during a given monthly period is provided at no charge. After the first two hours of support during a monthly period, Customer will pay a per hour charge for Hands-and-Eyes Support, in 15-minute increments.

 

1.2       Basic Operations.

 

1.3       Hands and Eyes Support will be provided, where available, as directed by Customer. Company does not guarantee the availability of Hands and Eyes Support. Company will use commercially reasonable effort to perform Hands and Eyes Support. In order to perform Hands and Eyes Support, Company may request instructions or Customer’s support to ensure no damage is done to Customer’s Equipment. Company has no liability, including without limitation liability for any damages to Equipment resulting from providing Hands and Eyes Support , or its unavailability.

 

2.         Alternate Carriers.

 

2.1       Except as specified in Section 2.2 below, Customer may arrange on its own (via separate contract) to bring in additional non-Company circuits from a third-party carrier equal to or less than the bandwidth purchased from Company subject to the following conditions:

 

2.1.1    The alternate carrier must have an approved existing presence inside the Company Data Center (Standard, Advanced, or Premium).

 

2.1.2    Customer must purchase a Company provided cross connection to the alternate carrier’s existing presence in Company’s data center.

 

2.1.3    Customer must purchase at least an equal amount of Data Center Colocation -related connectivity from Company. For example, if Customer wishes to bring in a T-3 circuit from another provider, it must purchase a T-3 or greater circuit from Company. Should Company determine Customer is purchasing more bandwidth from the alternate carrier, Customer will promptly purchase additional bandwidth from Company. Company’s Data Centers are not carrier-neutral facilities. Company allows alternate carrier access to its Data Center Colocation customers for redundancy purposes only.

 

2.1.4    Customer will not be allowed to purchase alternate carrier access if such access requires the alternate carrier to pull fiber to Customer’s cabinet directly.

 

2.1.5    Company does not take responsibility for alternate carrier circuits, nor does Company make any promises or warranties whatsoever regarding their performance.

 

2.1.6    Company does not monitor or maintain alternate carrier capacity in Company Data Centers. If Customer is utilizing an alternate carrier in a Company Data Center and such alternate carrier infrastructure requires augmentation, Customer acknowledges that the alternate carrier is responsible for notifying Company a minimum of 120 business days prior to the desired augment availability.

 

2.1.7    Customer may not directly interconnect with any third parties without prior written consent of Company. Company reserves the right to require that any permitted interconnection with a third party be set forth in separate contract.

 

2.2       Customers in the following Company Data Centers: Kent, WA, Billerica, MA, Manassas, VA, Englewood, CO and Elmsford, NY, may arrange on their own (via separate contract) to bring in additional non-Company circuits from a third-party carrier.  The terms in sub-sections 2.1.2, 2.1.4, 2.1.5 and 2.1.6 above shall apply to this section.

 

3.         Cross-Connect Cables. Cross-Connects are required for Company-provided Frame Relay Service, Domestic Private line Service, Private IP Service or Alternate Carrier Circuits.

 

4.         Customer Data Center Audit Protocols. In addition to the SAS70 audit report for Premium Data Centers which will be made available to Customer, Customer may request an audit of Customer's Space and the supporting physical infrastructure by contacting Customer's account manager. In assisting Customer with any such audit request, Customer will be charged for Hands and Eyes support. The audit request must be requested a minimum of five business days in advance of the planned audit and unless otherwise agreed to in writing by Company, the audit will be limited to an audit of Customer's power utilization, physical security, cooling, generator testing records, access records that are specific to access of Customer's Space including access list modifications and other access information as Company in its sole discretion may provide.

 

5.         Features and options for Data Center Colocation at Premium Data Centers. Customers at a Premium Data Center may obtain the following features and options:

 

5.1       Diverse Internet Connectivity. Customer may select either of the following options to obtain redundant Internet connectivity: Diverse Service or Shadow Service.

 

5.2       Cabinet Cabling.

 

6.         Customer Provided Uninterruptible Power Supply (UPS) Option at Advanced Data Centers and Standard Data Centers. Site UPS and redundant power is not available at Advanced and Standard Data Centers unless otherwise specified at a particular location. Customers subscribing to Data Center Colocation at Advanced and Standard Data Centers may obtain an Uninterruptible Power Supply (UPS) as an optional feature in accordance with the following:

 

·        Company will assist Customer as part of the pre-Sales process to select the right rack-mountable UPS to meet Customer’s power backup requirements. Ultimately, however, it is Customer’s responsibility to procure the UPS that works with its equipment and best suits its needs.

 

·        Customer may purchase a UPS on its own or order a UPS through Company. In using a UPS in the Facility, Customer acknowledges that UPSs are subject to failure, and that such failure may result in the load supported by the failed UPS being dropped from service. Customer further acknowledges that Company is not liable in any manner for any data loss suffered as a result of such failure. Customer is solely responsible for maintenance of the UPS and its associated batteries, whether ordered on its own or through Company.

 

·        If Customer orders a UPS through Company, the UPS shall become Customer’s property and title will pass to Customer upon placement of the UPS in Customer’s service area.

 

·        Upon cancellation or termination of the affected Service Agreement or Service Attachment, Customer shall be responsible for promptly removing its UPS from the Facility.

 

·        Customer is responsible for conveying UPS batteries that have reached their end-of-life to an appropriate recycling center. UPS batteries are not to be disposed of as standard commercial waste.

 

IV.        RATES AND CHARGES

 

1.         Data Center Colocation Rates and Charges. The following rates and charges apply to Data Center Colocation:

 

Data Center Colocation Rates and Charges

 

2.         Monthly recurring charges begin to accrue on the Service Activation Date applicable to each Data Center Colocation service, unless Customer has not provided Company with all information reasonably requested by Company for the provisioning of Data Center Colocation services. If Customer fails to provide Company with such information, monthly recurring charges begin to accrue on the thirtieth (30th) day following the date of Customer's execution of the Agreement or Customer’s placement of a Service Order. Monthly recurring charges, after application of all discounts and credits, incurred by Customer for Data Center Colocation services shall contribute to the Annual Volume Commitment (“AVC”), specifically excluding: (i) Taxes, as defined in the General Terms and Conditions ; (ii) charges for local access; (iii) charges for equipment (unless otherwise expressly stated in the Service Agreement or Service Attachment); (iv) charges incurred for goods or services where Company or Company affiliate acts as agent for Customer in its acquisition of goods or services; (v) non-recurring charges; (vi) “Governmental Charges” as defined in the General Terms and Conditions and (vii) other charges expressly excluded by the Service Attachment or the Service Agreement. Notwithstanding anything to the contrary in the Service Agreement, Company shall not waive, and Customer is liable for and obliged to pay, any standard installation and any other non-recurring charges for Data Center Colocation.

 

3.         Customer Support Services charges apply.

 

4.         Paper Invoice Charge applies.

 

5.         Convenience Payment Charge applies.

 

V.         TERMS AND CONDITIONS

 

Data Center Colocation is governed, in prevailing order, by any terms and conditions set forth in the Customer Service contract, the Terms and Conditions set forth immediately below, and by the  Online Master Terms - Terms and Conditions of Service.

 

1.         Service Modification. Company reserves the right to modify the Data Center Colocation service from time to time; provided Company will use commercially reasonable efforts to provide Customer with notice of modification to the Data Center Colocation service. If Company modifies the Data Center Colocation service and such modification results in a material adverse effect on the functionality of the Data Center Colocation service, Customer may terminate the particular Service Order to which the modified Data Center Colocation service pertains without penalty within thirty (30) days following implementation of the change; provided that Customer notifies Company of such material adverse effect in writing and Company fails to correct the adverse effect within ten (10) days following Company’s receipt of Customer’s notice.

 

2.         Customer Content

 

2.1       Customer, not Company, has sole and exclusive control over the content residing on the Equipment (the “Customer Content”). The parties acknowledge and agree that in the provision of Data Center Colocation service, Company is not provided, either directly or indirectly, and will not seek access to, the Customer Content. Company does not and will not exercise any control over the Customer Content.

 

2.2       Customer will promptly and thoroughly respond to any notices that the Customer Content violates the Digital Millennium Copyright Act, 17 U.S.C. § 101 et. seq. (the “DMCA”) or any other law, rule or regulation.

 

3.         Domain Name Service. Customer is responsible for registering and renewing its domain name(s); Company will not register or renew Customer’s domain names.

 

4.         Term And Termination. The Service Term commences on the date Company is prepared to provide the Space to Customer for installation of Equipment (the “Service Activation Date”), and automatically renews, expires and terminates according to the terms of the Service Agreement. Notwithstanding the above, Data Center IP bandwidth purchased from the Company shall be co-terminous with the underlying Data Center Colocation service.  In order to terminate a Data Center Colocation, in addition to the Notice requirements set forth in the Service Agreement, Customer must deliver an e-mail message stating its desire to terminate the applicable Data Center Colocation service to the following e-mail address: hosting-cancel@mci.com. Such termination shall be effective sixty (60) days following the Company’s receipt of such notice.

 

5.       Permissible Use of Space

 

5.1       Customer will use the Space only for the purposes of installing, maintaining, and operating the Equipment. Access to the Facility is restricted to Customer’s employees and agents with the understanding that no one under 18 years of age will be permitted access to the Facility. Customer will furnish to Company, and keep current, a written list identifying a maximum of ten (10) individuals authorized to obtain entry to the Facility and access to the Space. Customer will exercise reasonable efforts to ensure that no individual it authorizes to enter the Facility will have been convicted of a felony. Customer assumes responsibility for all acts and omissions of the individuals included on this list or authorized by Customer to enter the Facility. Customer’s employees and agents will comply with all applicable laws, rules, regulations, and ordinances; and with all Company or Facility security procedures, rules, requirements, and safety practices (which include, but are not limited to, a prohibition against smoking in the Facility), as amended from time to time. Company reserves the right to revoke the entry privileges of any person at any time and for any reason.

 

5.2       Company and its designees may enter the space where Customer’s equipment is located at any time without prior notice for reasons related to security, safety and maintenance of the Facility infrastructure.

 

5.3       Company and its designees may observe the activities of Customer’s employees and agents in the Facility and may inspect at any time the Equipment brought into or removed from the Facility, including the Space. Customer’s employees and agents will not use any products, tools, materials, or methods that, in Company’s reasonable judgment, might harm, endanger, or interfere with the Company’s Network, the Data Center Colocation service, Company’s provision of services to any other Customer, the Facility, or the personnel or property of Company, its vendors or its other Customers. Company may take any reasonable action to prevent such potential harm or interference.

 

5.4       Customer will not provide or make available to, sublicense or permit in any manner any third party to use all or a portion of the Space or the Facility, excluding Customer’s employees and agents. Company may terminate this Agreement and/or any Service Order immediately upon notice to Customer if (a) Customer makes the Space available to any other person or entity, excluding Customer’s employees and agents; or (b) if the Data Center Colocation service is resold or used by another organization.

 

5.5       Customer will maintain the Space in an orderly manner and will be responsible for the prompt removal of all trash, packing material, cartons, and other items or materials that Customer’s employees or agents bring into or deliver to the Facility. Company will charge Customer Hands and Eyes Support for any removal of trash, packing materials, cartons, and other items left in the Facility by Customer. No material improvements or modifications will be made to the Space or any portion of the Space or the Facility unless approved by Company, which approval will not be unreasonably delayed, conditioned or withheld. Company will provide five (5) days’ advance written notice to Customer of its demand to remove any unapproved items from the Space, including materials that could be considered a fire hazard, and of its intent to disconnect or remove unauthorized items and/or equipment from the Space. Notwithstanding the foregoing, if Company determines in its reasonable discretion that such unapproved items possess an immediate risk to the Facility or Company’s other Customers, Company may immediately disconnect or remove such unauthorized equipment from the Space without prior notice to Customer and without liability to Company.

 

5.6       Upon the expiration or termination of a Service Order under which Space is made available to Customer, Customer will surrender the applicable Space to Company and, within thirty (30) days after the date of such expiration or termination, return the Space to Company in the same condition as it was originally delivered to Customer, reasonable wear and tear excepted. Customer will remove the Equipment from the Space and the Facility and will fully repair any damage to the Facility caused by Customer, including, without limitation, any damage resulting from Customer’s removal of the Equipment from the Space. Any Equipment and/or personal property of Customer not removed within thirty (30) days after the date of expiration or termination of the applicable Service Order will, at Company's option, conclusively be deemed to have been abandoned by Customer. Company may, upon written notice to Customer, apportion, sell, use, store, destroy, or otherwise dispose of the Equipment or Customer’s personal property without liability to Customer or any other person or entity. Customer will pay all expenses and costs incurred in connection with Company's disposition of the Equipment and Customer’s personal property, including, without limitation, the cost of restoring the Facility to its original condition and of removing the Equipment or Customer’s personal property from the Facility.

 

5.7       Premium Data Center Colocation Service Customer’s employees and agents can enter the Facility 24X7 as long as their names are on the Customer’s data center access list and they can provide identification to the Facility’s security. This access list can be managed via Verizon Business Customer Center or by contacting the Company’s technical support. Except for 8 a.m. to 5 p.m., Monday – Friday, Customers at an Advanced Data Center must notify Company prior to entering the Facility by calling Company’s Customer service center at the number listed on Customer’s invoice for transport services or other contact method as may be designated by Company. Customers at a Standard Data Center must notify Company prior to entering the Facility by calling Company’s Customer service center at the number listed on Customer’s invoice for transport services or other contact method as may be designated by Company.

 

6.         Minimum Service Level Capacities. Customer shall employ DS-1, DS-3, or greater telecommunications service level capacities exclusively from Company in connection with the Equipment colocated at the Facility.

 

7.         Service Level Agreement

 

The Service Level Agreement (“SLA”) for Company’s B&R Service and Data Center Service at a Premium Data Center is set forth at http://www.verizonbusiness.com/terms (or other URL designated by Company). Company reserves the right to amend the SLA from time to time effective upon posting of the revised SLA to the URL; provided that Company will use commercially reasonable efforts to notify Customer of amendments to the SLA. Company may provide notice to Customer via Customer invoices or inserts or via electronic mail at the Customer’s e-mail address. The SLA sets forth Customer’s sole and exclusive remedies for any claim relating to the Data Center Colocation service or usage of the Company’s Network, including any failure to meet any service level set forth in the SLA. Company’s records and data will be the basis for all SLA calculations and determinations. Notwithstanding anything to the contrary, the maximum amount of credit in any calendar month under the SLA will not exceed the monthly recurring charges and/or installation charges and/or Start-Up fees, which, absent the credit, would have been charged for the Data Center Colocation service that month.

 

8.         Conduct In Facility

 

8.1       Customer will maintain and operate the Equipment in a safe manner, and keep the Space and any portion of the Facility it accesses in good order and condition. Customer’s equipment must be designed to operate within the temperature ranges, as described in the ‘Facility Services’ section. Customer agrees to use the common areas of the Facility only for the purposes for which they are intended. Customer’s employees and agents are prohibited from bringing any harmful or dangerous materials (as determined by Company in its sole discretion) into the Facility. Such materials include, but are not limited to, wet cell batteries, explosives, flammable liquids or gases, alcohol, controlled substances, weapons, cameras and video or voice recording devices. Customer agrees that its employees and agents will not harm or attempt to breach the security of the Facility, the Data Center Colocation service, or any third party system or network connected to the Facility or accessed by means of the Data Center Colocation service.

 

8.2       Customer agrees not to alter, tamper with, adjust, or repair any equipment or property not belonging to Customer. Customer further agrees not to erect signs or devices on the exterior of the storage cabinet or to make any physical changes or material alterations to the Space or any portion of the Facility.

 

8.3       If Customer desires any assistance in the Company Facility, Customer shall provide commercially reasonable notification to Company prior to arriving at any Company Facility by calling Company’s customer service center at the number listed on Customer’s invoice or other contact number as may be designated by Company.

 

8.4       Permanent use of extension cords in a Company Data Center is prohibited.

 

8.5       Use of power is limited to the specific bay the power order was originally provisioned to. Customer may not extend power to adjacent footprints.

 

8.6       Broadcast devices, including but not limited to, 802.11x; RFID; and cell phone data cards, are prohibited from use in the Data Center.

 

8.7       Customer’s use of voice feature on cell phones is restricted to only those areas so designated by absence of local restriction signage. Check with local data center management for specific restrictions regarding cell phone usage in the data center,

 

8.8       Customer will ensure that noise or interference generated by the Equipment will not exceed the threshold limits for EMI/RFI established by the FCC.

 

9.         Equipment

 

9.1       All Equipment situated in the Facility is charged with a lien, charge, mortgage or encumbrance in favor of Company to the extent of any unpaid charges plus interest thereon under the Service Agreement or any other agreement between Company and Customer, and the Service Attachment, as applicable, under which Data Center Colocation is provided will constitute a security agreement with respect to such Equipment. Customer must promptly notify Company of any lien(s) on or security interest(s) in the Equipment.

 

9.2       Customer may remove from the Facility only that Equipment in which Customer can evidence it has sufficient ownership or possessory interest.

 

9.3       All Equipment must fit within the Space. Unless otherwise provided in a the Service Agreement or Service Attachment, Customer must not permit power consumption to exceed the power rating identified in the Service Agreement or Service Attachment and Customer will ensure that all Equipment is UL approved. Cabling used by Customer must meet national electrical and fire standards and any specifications provided by Company.

 

9.4       Company reserves the right to relocate the Equipment within the Facility or to move the Equipment to another facility with at least ninety (90) days’ written notice; provided that any Equipment relocation or move resulting from a Force Majeure Event will be governed by Section 13, below. Equipment moved or relocated at Company’s initiative will be at Company’s expense. Company will use commercially reasonable efforts to minimize downtime and service interruption in the event Equipment is moved or relocated.

 

9.5       Customer will immediately remove or render non-infringing, at Customer’s expense, any Equipment alleged to infringe any patent, trademark, copyright, or other intellectual property right.

 

9.6       Customer will promptly notify Company of any lien(s) on or security interest(s) in the Equipment.

 

9.7       If Company damages any Equipment, Company will repair or replace the damaged item or, at Company’s option, will reimburse Customer for the reasonable cost of repair or replacement.

 

9.8       If Customer is providing its own equipment cabinets or relay racks, such cabinets or racks must be delivered to the Facility at least ten (10) business days prior to scheduled installation date. Company will commence billing on scheduled delivery date regardless of whether Customer has provided its cabinets or relay racks.

 

9.9       Customer is solely responsible for accepting delivery of Equipment and any other facilities or materials delivered to a Facility on behalf of Customer. Customer may not ship Equipment or any other materials to a Facility unless Customer delivers to the Facility manager written information regarding such shipment, five (5) days prior to delivery. Customer must move Equipment or any other materials from the shipping/loading area of the Facility within ten (10) business days from the date of delivery. If Customer fails to move Equipment or any other materials from the shipping/loading area of the Facility within such ten (10) business day period, Company reserves the right to charge Customer a daily storage fee. At Customer’s request, Company may, in its sole discretion, accept delivery of Equipment at a Facility if Company has the means to do so. Notwithstanding the foregoing, Customer will remain responsible for risk of loss of the Equipment unless such loss is caused by the negligence or willful misconduct of Company.

 

9.10     Customer will maintain documentation and labeling of all Equipment in the Space. Customer will provide emergency contact names and telephone numbers and post this contact information on site.

 

9.11     Company has engineered the airflow for the cabinets in Premium Data Centers to maximize the benefits of cold air to the cabinet intakes. This engineering provides cold air flowing into a cold aisle ("Cold Aisle") at the front of the cabinet and hot air being released from the equipment flowing to the rear ("Hot Aisle") in order to avoid hot air mixing with the cold air. Customer must install its equipment in conformance with a Hot Aisle/Cold Aisle configuration. Such installation requires Customer to maintain on an ongoing basis the complete blanking of all empty equipment spaces within Customer’s cabinet or rack, the sealing of gaps between the sides and tops of the cabinets or racks using seal kits, and cable management within the cabinet or rack to allow maximum airflow through the cabinet to prevent the mixing of hot air and cold air (collectively the "Hot Aisle/Cold Aisle Configuration Requirement"). If Customer equipment or cabinet/rack configuration does not at any time comply with the Hot Aisle/Cold Aisle Configuration Requirement Customer will be in violation of the requirement. Company will provide notification via e-mail to Customer of such violation and Customer will have ninety (90) days to remedy the violation. If Customer does not remedy the violation by the end of ninety (90) days following date of notification, Company may take corrective actions which may include, installing an air scoop on the outside of the non-compliant cabinet/rack, and/or placing blanking panels and sealing strips on the inside of the cabinets and Customer will pay all expenses and costs incurred by Company in connection with such corrective actions.

 

10.       Third-Party Software. Customer is fully responsible for any third-party software it uses in the Space. Customer shall indemnify, defend, and hold Company harmless from any action against Company to the extent that it is based on an allegation that such third-party software has infringed an intellectual property right or trade secret, and pay those damages or costs related to the settlement of such action or finally awarded against Company in such action, including but not limited to attorneys’ fees, provided that Company (i) promptly notifies Customer of any such action, (ii) gives Customer full authority, information and assistance to defend such claim, at Customer’s expense.

 

11.       Insurance

 

11.1     Throughout the Term, Customer will maintain, and will require any of its subcontractors to maintain, the following insurance coverages:

 

(a)        Commercial General Liability, on the current ISO occurrence basis form (or a substitute form providing equivalent coverage ), including but not limited to, premises-operations, broad form property damage, products/completed operations, contractual liability, independent contractors, and personal injury, with limits of at least $2,000,000 combined single limit for each occurrence and aggregate policy limit.

 

(b)        Automobile Liability Insurance, written on the current ISO Business Auto Coverage Form, covering all owned, non-owned, leased and hired vehicles in amount not less than $2,000,000 single limit per accident.

 

(c)        Excess Liability Insurance, with respect to Commercial Liability Insurance, Automobile Liability Insurance and Employers Liability Insurance, with limits of at least $10,000,000 for each occurrence and aggregate policy limit.

 

(d)        Workers Compensation Insurance as required by Applicable Law and Employers Liability Insurance with limits of not less than $2,000,000 each accident, $2,000,000 by disease-each employee and $2,000,000 by disease-each policy limit. All Risk Property Insurance in an amount not less than replacement cost of Customer’s property.

 

(e)        All-Risk Property Insurance in an amount not less than replacement cost of Client's property.

 

11.2     All insurance policies will be issued by carriers with A.M. Best solvency ratings of at least A-VIII. MCI Communications Services, Inc. d/b/a Verizon Business, Verizon Communications Inc. and each of their respective subsidiaries, directors, officers and employees will be named as an additional insured with respect to all coverages except d) and e) above. Customer's insurance will be primary and non-contributory to any other policies with respect to their operations. The Commercial General Liability insurance will contain the "Amendment of the Pollution Exclusion" endorsement for damage caused by heat, smoke or fumes from a hostile fire.

 

11.3     Company will not insure or be responsible for any loss or damage to property of any kind owned or leased by Customer or by its employees and agents other than losses or damages proximately resulting from Company's negligence or willful misconduct. Any Customer insurance policy covering the Equipment against loss or physical damage will expressly provide that the policy’s underwriters waive their rights of subrogation against Company, the Facility's landlord, and their respective directors, officers and employees (the Providers), except for such loss or physical damage proximately caused by the sole negligence or willful misconduct of the Providers. In the event the Facility's landlord requires additional insurance pursuant to a lease relevant to a particular Space, or the landlord legally imposes additional other requirements under the lease Customer hereby agrees to comply with the landlord's requirements under the lease, as the lease may be modified from time to time.

 

11.4     Certificate(s) evidencing the insurance coverages and other requirements of this Section will be submitted to Company upon execution of the Service Agreement. The certificate(s) will certify that no material alteration, modification or termination of such coverage will be effective without at least thirty (30) days advance written notice to Company at: MCI Communications Services, Inc. d/b/a Verizon Business, Attn: Data Center Colocation Product Management, 22001 Loudoun County Parkway, Ashburn, VA 20147, Fax (703) 886-0685.

 

12.       No Estate or Property Interest. Company hereby grants to Customer an exclusive, limited license to use and occupy the Space in the Facility identified on each Service Order for the sole purpose of installing, operating and maintaining the Equipment in accordance hereto. Customer acknowledges that it has not been granted any real property interests in the Space or the Facility. Payments by Customer under the Service Agreement do not create or vest in Customer (or in any other entity or person) any leasehold estate, easement, ownership interest, or other property right or interest of any nature in the Facility or any part thereof. The parties intend and agree that the Equipment, whether or not physically affixed to the Facility, are not fixtures and will not be construed as such. Customer (or the lessor of the Equipment, if applicable) will report the Equipment as its personal property wherever required by applicable laws and will pay all taxes levied upon such Equipment. The Service Agreement is expressly made subject and subordinate to the terms and conditions of any underlying ground or facilities lease or other superior right by which Company or Company’s affiliates have acquired its interest in the Facility. 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 for the parties to enter into the Service Agreement, then such Agreement will not become effective until such consent is obtained. If such Agreement is subsequently construed by the landlord or the sub-landlord of the Facility (if applicable) to be a violation of the lease or sublease under which Company occupies the Facility, Customer will either enter into an agreement approved by such landlord or sub-landlord, or remove the Equipment from the Facility in accordance with these Terms and Conditions. Company agrees to cooperate with Customer in obtaining the approvals Customer may need to obtain from the landlord or sub-landlord.

 

13.       Force Majeure

 

13.1     Any delay in or failure of performance by Company or Customer regarding the Data Center Colocation service is not considered to be a breach of the Service Agreement if and to the extent caused by a Force Majeure Event.

 

13.2     If the Space is damaged due to a Force Majeure Event, Company will give prompt notice to Customer of such damage, and may temporarily relocate the Equipment to new Space or a new Facility, if practicable. If the Facility’s landlord or Company exercises an option to terminate a particular lease due to damage or destruction of the Space, or if Company decides not to rebuild the Space, the applicable Service Order will terminate as of the date of the Force Majeure Event. In the event of such termination, or a temporary cessation of the Data Center Colocation service caused by a Force Majeure Event, monthly recurring charges for Space and Data Center Colocation service will proportionately abate for the period from the date of the Force Majeure Event, and, in the case of temporary cessation, re-commence upon the re-commencement of the Data Center Colocation service. If neither the landlord of the Facility nor Company exercises the right to terminate, Company will repair the particular Space to substantially the same condition it was in prior to the damage, completing the same with reasonable speed. In the event that Company fails to complete the repair within a reasonable time period, Customer will have the option to terminate the applicable Service Order with respect to the affected Space, which option will be the sole remedy available to Customer against Company under the applicable Service Agreement relating to such failure. If the Space or any portion thereof is rendered untenable by reason of such damage and the Equipment is not relocated to a new Space or a new Facility, the monthly recurring charges for Space and Data Center Colocation service will proportionately abate for the period from the date of such damage to the date when such damage is repaired.

 

14.       Indemnity

 

14.1     Customer and Company agree to defend, indemnify, and hold each other harmless from and against any third party claims, suits, damages and expenses asserted against or incurred by such party (“Indemnitee”) arising out of or relating to bodily injury to or death of any person, or loss of or damage to real or tangible personal property or the environment, to the extent that such claim, suit, damage, or expense was proximately caused by any negligent act or omission on the part of the party from whom indemnity is sought, its agents or employees (“Indemnifying Party”). The Indemnifying Party shall pay all damages, settlements, expenses and costs, including costs of investigation, court costs and reasonable attorneys’ fees and costs (including allocable costs of in-house counsel) incurred by the Indemnitee in enforcing the Service Agreement.

 

14.2     In addition to the above, Customer agrees to defend, at its own expense, and indemnify and hold harmless, Company and its subcontractors (collectively, the "Company Indemnitees") from and against any claims, suits, damages and expenses asserted against or incurred by any of the Company Indemnitees arising out of or relating to (i) Customer's acts, omissions, negligence and/or breach of its warranties or obligations hereunder, including, but not limited to Customer’s nonpayment for the Space or Data Center Colocation service; (ii) Customer's connection of the Data Center Colocation service to any third party service or network, including, without limitation, damages resulting from unauthorized use of, or access to, the Company’s Network by Customer or a third party; (iii) any third-party’s alleged ownership or possessory interest, lien, trust, pledge, or security interest in the Equipment, including, without limitation, any attempt by such third party to take possession of the Equipment; (iv) the dismissal, suspension, or termination of employment/work of any Customer employee or agent; (v) the denial of any entry to the Facility of any employee or agent of Customer; and (vi) violation, misuse or misappropriation of the trademarks, copyrights, moral rights, trade secrets, or other proprietary rights or intellectual property rights of Company or of a third party (other than a claim based on an assertion by a third party that Company does not own Company service marks or trade marks). Notwithstanding any provision to the contrary, Customer will pay all damages, settlements, expenses and costs, including costs of investigation, court costs and reasonable attorneys' fees and costs (including allocable costs of in-house counsel) incurred by Company Indemnitees as set forth in this Section, including, without limitation, reasonable attorneys' fees and costs incurred in enforcing the applicable Service Agreement.