This COLOCATION MASTER SERVICES AGREEMENT, including the Schedule of Equipment and the Service Level Agreement attached hereto (collectively, these “Terms and Conditions”) is made a part of the document entitled, “COLOCATION SERVICE ORDER FORM” (the “Colocation Service Order Form”) entered into and executed by and between Atlantic.Net, Inc. (“ATLANTIC.NET”) and the Customer identified in the Colocation Service Order Form. The term “Agreement” shall mean these Terms and Conditions, the Colocation Service Order Form and the Acceptable Use Policy. These Terms and Conditions are incorporated by reference into the Colocation Service Order Form as if fully set forth therein. ATLANTIC.NET and Customer acknowledge and agree that upon execution of the Colocation Service Order Form, they shall be legally bound by the Agreement. Capitalized terms not defined in these Terms and Conditions shall have the same meaning as in the Colocation Service Order Form.
(a) Grant of License. Subject to the terms and conditions set forth in this Agreement, ATLANTIC.NET hereby grants to Customer the right and non-exclusive license (“License”) to install and operate the Equipment in the specific space or spaces (“Space”) located in the premises (“Premises”) in the Building, as specified by ATLANTIC.NET during the Term of this Agreement and solely to use the Space for the Permitted Uses set forth below and for no other purposes. Notwithstanding the foregoing, ATLANTIC.NET reserves the right to relocate, change or otherwise substitute replacement space in the Premises for the Space at any time during the Term hereof, provided that the replacement space is substantially similar in size and configuration to the original Space.
(b) Term. This Agreement and the License shall commence on the Effective Date set forth in the Colocation Service Order Form and shall each automatically renew for successive terms equal to the initial term unless cancelled by either party in writing at least thirty days before the expiration of the current term (the “Term”). Provided, however, the Term shall terminate prior to the scheduled date of termination if subject to Sections 11, 12 and/or 13 below.
(c) Permitted Uses. Customer has the right to use the Space solely for the purpose of (i) installation of the Equipment in the Space, (ii) maintaining the Equipment, (iii) operating the Equipment, and (iv) removing the Equipment (the “Permitted Uses”). Unless otherwise agreed by ATLANTIC.NET in writing, Customer shall perform the Permitted Uses at its sole cost and expense. Customer shall not use or allow or permit the use of the Space for any use or purpose other than a Permitted Use.
(d) Not a Grant of an Interest in Real Property. Customer represents, warrants, covenants, acknowledges and agrees that it does not have, has not been granted and will not own or hold any real property interest in the Space, the Premises or the Building; that Customer is a licensee not a tenant or lessee of the Space; and that Customer does not have any of the rights, privileges or remedies that a tenant or lessee would have under a real property lease or occupancy agreement.
All Fees and other sums which are or may hereafter be owed to ATLANTIC.NET by the Customer under this Agreement (including without limitation Default Interest, Late Charges and attorney’s fees and other costs of collection are called the “Obligations”. In order to secure the payment and performance of the Obligations, the Customer hereby grants to ATLANTIC.NET a security interest, within the meaning of the Article 9 of the Uniform Commercial Code (the “UCC”) in all Equipment, cable, wiring, connecting lines and other installations, equipment or property of the Customer now or hereafter installed or placed in the Space or Premises. Except with respect to ATLANTIC.NET’s security interest, the parties agree that the Uniform Commercial Code shall not apply to the Agreement.
(a) Payment of Fees. On or before the first (1st) day of each and every month during the Term hereof (each, a “Due Date”), Customer agrees to and shall pay the Fees to ATLANTIC.NET, in advance, for the Services to be rendered by ATLANTIC.NET to Customer during said upcoming month, without offset, deduction or credit of any kind and in good and drawable funds. If Customer for any reason fails to pay the Fees to ATLANTIC.NET by the Due Date of any month during the Term hereof, Customer will be assessed an administrative charge in the amount which is equal to five (5%) of the overdue Fees (“Administrative Charge”); in addition ATLANTIC.NET may charge interest on all due but unpaid Fees at the lesser of 1.5% per month or the maximum non-usurious rate under applicable law (“Default Interest”) until paid in full. Customer agrees to and shall pay to ATLANTIC.NET for all costs of collection of the Fees, Default Interest and Late Charges plus ATLANTIC.NET’s attorneys’ fees, costs, expenses and court costs and fees paid or incurred in connection therewith. Customer’s obligation to pay the Fees, Default Interest and Late Charges shall survive the expiration or earlier termination of the Agreement. If Customer requests that Atlantic.Net provide services not specifically set forth herein and Atlantic.Net agrees to provide such services, Customer agrees to pay ATLANTIC.NET’s standard fee for such service at the time such service is rendered or such charge as the parties may mutually agree upon prior to the delivery of the service and such services shall be included within the definition of “Services”. ATLANTIC.NET may suspend or otherwise cease performing any or all Services to Customer if payment for any Service is not timely paid in full. Such suspension shall include, without limitation, denying Customer access to the Space or Premises and changing locks and access codes. Time is of the essence with respect to Customer’s performance and the making of payments hereunder. A Reinstatement Fee equal to seventy-five dollars ($75.00) will be assessed for suspended Services and must be collected with the overdue Fees for the account to be reinstated. Fees not disputed within sixty (60) days of due date are conclusively deemed accurate and all Services subject to those undisputed Fees shall be deemed fully accepted and by ATLANTIC.NET and in full compliance with this Agreement.
(b) Taxes. Customer is responsible for all taxes under this Agreement, however designated, levied or based on such charges excluding income taxes payable by ATLANTIC.NET, and Customer’s tax obligations include, without limitation, all state and local privilege taxes, sales and use taxes, excise taxes based on gross revenue, and ad valorem or personal property taxes (collectively, “Tax”). Customer agrees that if any of the foregoing is paid by ATLANTIC.NET, Customer shall reimburse ATLANTIC.NET for the amount paid plus any related expenses incurred and interest assessed. Unless otherwise stated as a separate line item on any bill or invoice provided by ATLANTIC.NET, all payments required by this Agreement are exclusive of any applicable Tax.
(a) Rights in the Event of Default by Customer. In addition to all other rights and remedies granted to ATLANTIC.NET in the Agreement and available under applicable law, (including, but not limited to, the right to charge and collect Late Charges), upon the occurrence of an Event of Default by Customer, all obligations of ATLANTIC.NET to provide to Customer the Services and use of or access to the Space under this Agreement shall immediately and automatically terminate without further notice to Customer and ATLANTIC.NET shall have the right to: (i) cease providing the Services to Customer and cease providing access to or use of the Space and Premises and change locks and access codes, without notice to Customer, and (ii) remove the Equipment from the Space and Premises without notice to Customer in accordance with Section 12(c) below; and (iii) terminate this Agreement, subject to the continuing rights of ATLANTIC.NET under this Agreement to require payment of the Obligations and to exercise the remedies provided in Section 12(c) below.
(b) Termination Obligations. Customer agrees that, upon the cancellation, expiration or termination of the License or this Agreement for any reason whatsoever, Customer shall, within ten (10) days, make payment in full on all Obligations under this Agreement, including all outstanding Fees, Default Interest, Late Charges and other amounts, and promptly remove or have removed, at Customer’s sole cost and expense, all Equipment and all cable, wiring, connecting lines, and other installations, equipment or property installed or placed by or for Customer in the Space or Premises and restore those portions of the Space and Premises damaged by such removal to their original condition as it existed immediately prior to the installation or placement of such items.
(c) Right to Remove Equipment. If Customer fails to promptly make full payment to ATLANTIC.NET of all Obligations and fails to remove any Equipment or other items as set forth in Section 12(b) above, or if ATLANTIC.NET has the right to remove the Equipment as set forth in Section 12(a) above, then, to the fullest extent permitted by law, ATLANTIC.NET shall have the right to take and hold possession of the Equipment, and ATLANTIC.NET shall have all of the rights of a secured party with respect to the Equipment and all other collateral for the Obligations. ATLANTIC.NET may, at Customer’s expense: (i) remove and store such Equipment and items; (ii) delete and remove all software, information data and other stored items from the Equipment without retaining any copies or backups; and (iii) restore those portions of the Space and Premises damaged by such removal to their original condition as it existed immediately prior to the installation or placement of such items. All costs and expenses incurred in connection with (i), (ii) and (iii) in the preceding sentence shall be included within the definition of “Obligations”. ATLANTIC.NET may, unless all outstanding Obligations are paid to ATLANTIC.NET within ten (10) days after written notice to the Customer, dispose of the Equipment and other collateral for the Obligations at public or private sale, in the manner permitted under the Uniform Commercial Code, and may exercise any other remedy available to ATLANTIC.NET at law or in equity.
(d) Customer’s Removal of Equipment. Notwithstanding anything to the contrary contained in this Agreement, Customer shall not be permitted to remove any of Customer’s Equipment from the Space or Premises at any time when Customer is subject to an Event of Default, delinquent in meeting any of its payment obligations or is otherwise in breach of any other material term under this Agreement. Full payment shall be a condition of Customer receiving access to the Space and Premises and Customer’s removal of its Equipment.
(e) Payment upon Termination. Upon the termination or cancellation of this Agreement for any reason whatsoever prior to the end of the then-current term other than a termination or cancellation as a result of a default by ATLANTIC.NET under Section 13 below, all Fees and other costs, expenses and amounts for the License, the Services and any other Obligations incurred during the full Term of the Agreement shall be immediately and automatically accelerated and due and payable in full to ATLANTIC.NET within ten (10) days of the date of such termination or cancellation
(a) NOTWITHSTANDING ANY PROVISION OF THIS AGREEMENT TO THE CONTRARY AND TO THE FULLEST EXTENT PERMITTED BY LAW: (I) THE TOTAL AND AGGREGATE LIABILITY OF ATLANTIC.NET TO CUSTOMER FOR ANY REASON WHATSOEVER ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE LICENSE, THE SERVICES, PREMISES OR SPACE SHALL NOT IN ANY EVENT EXCEED THE TOTAL AMOUNT OF FEES ACTUALLY PAID TO ATLANTIC.NET BY CUSTOMER UNDER THIS AGREEMENT IN THE THREE (3) MONTH PERIOD IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO THE LIABILITY; AND (II) IN NO EVENT SHALL ATLANTIC.NET BE LIABLE TO CUSTOMER FOR ANY INDIRECT, SPECIAL, OR CONSEQUENTIAL DAMAGES, LOST PROFITS, INJURY TO BUSINESS OR REPUTATION, LOST DATA, BUSINESS OR CUSTOMERS, THE LOSS OF PROSPECTIVE PROFITS OR ANTICIPATED SALES OR ON ACCOUNT OF EXPENDITURES, INVESTMENTS, OR COMMITMENTS INCURRED IN CONNECTION WITH CUSTOMER’S BUSINESS, WHICH RESULT FROM ANY OUTAGES OF THE SERVICES OR ANY OTHER FAILURE OF CONNECTIVITY OR ANY OTHER FAILURES.
(b) ATLANTIC.NET SHALL NOT IN ANY CASE BE LIABLE FOR ANY OF THE FOLLOWING: (I) THE CONTENT OF THE INFORMATION PASSING OVER ATLANTIC.NET’S NETWORK; (II) UNAUTHORIZED ACCESS OR DAMAGE TO, ALTERATION, THEFT, DESTRUCTION OR LOSS OF, EQUIPMENT, CUSTOMER’S RECORDS, INFORMATION, FILES OR DATA; (III) CLAIMS FOR DAMAGES CAUSED BY CUSTOMER; (IV) CLAIMS AGAINST CUSTOMER BY ANY OTHER PARTY; OR (V) ANY ACT OR OMISSION OF ANY OTHER PARTY FURNISHING SERVICES AND/OR PRODUCTS, OR THE INSTALLATION AND/OR REMOVAL OF ANY AND ALL EQUIPMENT OR SUPPLIES.
(c) CUSTOMER AND ITS EMPLOYEES, AGENTS AND REPRESENTATIVES ASSUME ALL RISK, INCLUDING, WITHOUT LIMITATION, FALLS AND ELECTRIC SHOCKS, AND RELEASES ATLANTIC.NET AND ITS AGENTS, EMPLOYEES AND REPRESENTATIVES FROM ANY LIABILITY WHATSOEVER ARISING OUT OF ANY DAMAGE, LOSS OR INJURY TO PERSON AND/OR PROPERTY, EVEN IF CAUSED BY ATLANTIC.NET’S OWN NEGLIGENCE.
(d) ALL OF THE LIMITATIONS IN THIS SECTION 18 SHALL APPLY EVEN IF ATLANTIC.NET HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES AND WHETHER ANY CLAIMS ARE BASED IN CONTRACT, TORT, STRICT LIABILTY, PRODUCT LIABILITY OR OTHERWISE.
TO: ATLANTIC.NET, INC.
440 West Kennedy Blvd, Suite 3
Orlando, FL, 32810
ATTN: Legal Department
Telephone: (321) 206-3730
Fax: (407) 660-8094
Customer Contact Name and Address Listed in the Colocation Service Order Form.
SCHEDULE OF EQUIPMENT
A list of Equipment Customer plans to install and operate at the Premises shall be provided to ATLANTIC.NET by the Customer.
SERVICE LEVEL AGREEMENT
ATLANTIC.NET agrees to and shall provide the Services to the Equipment in the Space in accordance with this Service Level Agreement. Capitalized terms not defined herein shall have the same meaning as in the Colocation Service Order Form and the Agreement:
ATLANTIC.NET’s intention is to provide uninterrupted power to the Equipment in the Space; however, events occur from time to time that may interrupt the power delivered to the Equipment in the Space. In the event that Customer experiences an interruption in power delivery to the Equipment in the Space (a “Power Interruption”), excluding scheduled maintenance, ATLANTIC.NET shall, for each impacted power circuit in the Space, grant to Customer a percentage credit during the next succeeding month (a “Power Interrupt Percentage Credit”). Notwithstanding the foregoing, if a Power Interruption is caused by one or more events of Force Majeure or by the Customer exceeding 80% of a circuit breaker’s rating under continuous load, the Customer shall not be entitled to a Power Interrupt Percentage Credit. The Power Interrupt Percentage Credit shall be based on the following schedule:
Per 15 Minutes of downtime: One hour of the Monthly fee allocable to the specific impacted power circuit.
Power Interrupt Percentage Credits are not cumulative from month to month and apply only to the month in which the Power Interruption occurred. Customer shall not receive during any month of the Term hereof a Power Interrupt Percentage Credit, which cumulatively exceed 100% of the monthly Fee allocable to the power circuit(s) affected in the Space. Where possible, ATLANTIC.NET will provide Customer with directed remote hands-services (without charge) to power up affected Equipment on a best effort basis.
Network Uptime (only applicable when Atlantic.Net provides Internet Access)
Atlantic.Net guarantees that the network will be available 100% of the time in a given month excluding scheduled maintenance. Atlantic.Net will refund the Customer one hour of the monthly Internet Access fee per additional 15 minutes downtime (up to 100% of Customer’s monthly Internet Access fee). Network uptime includes functioning of all network infrastructure including router, switches and cabling. Network downtime exists when a particular customer is unable to transmit and receive data and Atlantic.Net records such failure in the Atlantic.Net trouble ticket system.
ATLANTIC.NET’s cross-connects in the Premises are designed for 100% circuit availability. If ATLANTIC.NET’s cross connects degrade outside acceptable BellCore parameters (i.e., in excess of 1 minute) (a “Degrade Interruption”), excluding scheduled maintenance, ATLANTIC.NET shall, for each impacted cross-connect in the Space, grant to Customer a percentage credit during the next succeeding month (a “Degrade Interrupt Percentage Credit”). Notwithstanding the foregoing, if a Degrade Interruption is caused by one or more events of Force Majeure, the Customer shall not be entitled a Degrade Interrupt Percentage Credit. The Degrade Interrupt Percentage Credit shall be based on the following schedule:
Per 15 Minute of downtime: One hour of the Monthly fee allocable to the specific impacted cross-connect.
Degrade Interrupt Percentage Credits are not cumulative from month to month and apply only to the month in which the Degrade Interruption occurred. Customer shall not receive during any month of the Term hereof a Degrade Interrupt Percentage Credit, which cumulatively exceed 100% of the monthly Fee allocable to the cross-connects affected in the Space.
REFUNDS OR CREDITS
In order to qualify for a refund or credit pursuant to this Service Level Agreement, Customer must (a) contact ATLANTIC.NET’s Network Operations Center toll free number [(800) 540-4686] or email [ [email protected]] within one (1) business day of the occurrence of the event for which the refund or credit is being requested and open a “trouble ticket”, and (b) within ten (10) calendar days of the occurrence of the event deliver to ATLANTIC.NET (at ATLANTIC.NET’s notice address in the Agreement) written notice describing with precision the dates and time of the event, the length of the event (in minutes and hours), the type of event, which rack, cage, or cabinet in the Space was affected by the event, and what effect the event had on Customer’s ability to operate the Equipment during the event. Upon opening of the “trouble ticket” ATLANTIC.NET will commence to investigate the facts which led to the event, and upon receipt of Customer’s written notice describing the event ATLANTIC.NET and Customer shall make a joint examination of ATLANTIC.NET’s facility monitoring system records for the impacted cage, rack or cabinet in the Space. ATLANTIC.NET agrees to and shall make a determination of whether Customer is entitled to a refund or credit within thirty (30) calendar days from the occurrence of the event. Until such determination, Customer shall continue to pay on a timely basis all monthly Fees required by the Agreement without offset, credit or deduction. The amount of any refund or credit to which Customer is entitled for an impacted power circuit, Internet access, or cross-connect shall not exceed one hundred percent (100%) of the monthly Fee allocable to the specific impacted power circuit, Internet access, or cross-connect. Under no circumstance will Customer be entitled to a refund or credit if the event complained of was caused by an event of Force Majeure, scheduled maintenance, or Customer’s actions.
Customer agrees to and shall abide by and honor all rules, regulations, policies and procedures with regard to the use of the Space, the Premises and the Building from time to time published by ATLANTIC.NET (whether written or published on ATLANTIC.NET’s website). By signing the Colocation Service Order Form the Customer agrees to be bound by these Terms and Conditions. Customer also acknowledges that it has reviewed Atlantic.Net’s Customer Policies & Procedures. Atlantic.Net, Inc. will confirm delivery date after the order has been validated and approved. Installation charges are an estimate only. Final charges are subject to completion of installation. Atlantic.Net, Inc. cannot guarantee additional power for reconfiguration or upgrades of Customer Equipment, except as specified in this Agreement.
Customer authorizes Atlantic.Net, Inc. to release Customer’s name to other Atlantic.Net potential and current customers.
Customer agrees and acknowledges that it is solely responsible for ordering circuits directly from the carrier if Customer is not purchasing bandwidth from Atlantic.Net. Customer shall coordinate with the carrier the delivery and provisioning of circuits to Atlantic.Net, Inc. facilities. Atlantic.Net, Inc. may be able to assist only if circuit number(s) are provided. Customer understands that Atlantic.Net, Inc. is not responsible for commitments made by carriers.
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