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Colocation Agreement

Service Type: Server Colocation
Service Provider: CorePacket, LLC

Please read this Colocation Agreement (this "Agreement") carefully before signing, since by signing this Agreement, you consent to all of its terms and conditions. This Agreement is made by and between CorePacket, LLC ("CorePacket") and Customer. This Agreement is effective upon CorePacket's acceptance as indicated by its signature below on the Effective Date as indicated (the "Effective Date"). This Agreement may be executed in two or more counterparts, each of which will be deemed an original, but all of which together shall constitute one and the same instrument.

Thank you for choosing CorePacket to provide your Colocation services. As used in this Agreement, the term "you" and "Customer" refers to the above-named corporation, partnership or other business entity that enters into this Agreement. The initial Order Form is attached to this Agreement as Exhibit A. CorePacket and Customer may enter into subsequent Order Forms, which may supercede or complement prior Order Forms. As used in this Agreement, the term "Customer Equipment" refers to any and all computer equipment, software, networking hardware or other materials placed by or for Customer in the Colocation Space, other than CorePacket Equipment.

CorePacket will begin installation, initiation and service after it receives and accepts: (1) your Order Form; (2) a copy of this Agreement signed by your authorized representative and (3) payment of amounts due under Section 1.1 below, detailed on your Order Form.

  1. Fees and Billing. Customer agrees to pay the Activation Charges, Monthly Fees and other fees indicated on the Order Form (collectively, "Service Fees").
    1. Activation Charges. CorePacket will bill Customer for all Installation Charges and first month recurring Service Fees (the "Activation Charges") (as specified on the Order Form) upon CorePacket's acceptance of this Agreement and the Order Form. CorePacket will not commence installation, initiation and Service unless and until it has received payment in full of all Activation Charges.
    2. Recurring Service Fees. CorePacket will begin billing for Recurring Service Fees on the date that is the earlier of: (a) the Installation Date specified on the Order Form; or (b) the date that Customer places Customer Equipment in CorePacket's premises. If, however, Customer is unable to use the Services commencing on the Installation Date solely as a result of delays caused by CorePacket (this does not include delays caused by third party service providers), then the Installation Date specified in the Order Forms shall be extended one day for each day of delay caused by CorePacket. On or about the first day of each month, CorePacket will bill Customer for services to be provided in the current month. Recurring Service Fees do not include monthly telephone company charges or data line charges that are each billed separately by third parties. All agreements will increase at a rate of 10% annually for the length of the term.
    3. Payment. All fees and charges will be due, in U.S. dollars, on the first day of the service month as indicated on the CorePacket invoice. Late payments will accrue interest at a rate of one and one-half percent (1 1/2%) per day, or the highest rate allowed by applicable law, whichever is lower. If in its judgment CorePacket determines that Customer lacks financial resources, CorePacket may, upon written notice to Customer, modify the payment terms to secure Customer's payment obligations before providing Services. CorePacket, using its sole judgment, reserves the right to determine whether to charge interest to a late paying customer, or to consider the customer as having breached this agreement as specified in Paragraph 11.
    4. Taxes. All payments required by the Agreement are exclusive of applicable taxes and shipping charges. Customer will be liable for and will pay in full all such amounts (exclusive of income taxes payable by CorePacket).
    5. Term. The Term of this Agreement is specified in the Order Form. This Agreement shall automatically renew as defined in section (Renewal Term) unless either party provides written notice of non-renewal within thirty (30) days of the end of the Term.
    6. Renewal Term. 1 term(s) of twelve (12) months each.
      1. Renewal Option. Subject to the conditions stated in this section, Customer shall have the option to extend this agreement for up to 1 terms, each term consisting of 12 month(s). Each such Renewal Term shall commence the day following expiration of, as applicable, the initial Term or the preceding Renewal Term, and shall be for a Base Rent determined pursuant to the order form, and otherwise on and subject to all of the terms and conditions set forth in this Agreement. Customer may exercise the option granted hereby by written notice to CorePacket, but only if, all of the following conditions are satisfied:
        • (a) Customer shall have given such notice not less than 30 days before the last day of the initial Term or Renewal Term to be extended;
        • (b) During the Term preceding delivery of such notice, Customer shall not have defaulted in any of its obligations hereunder, or CorePacket shall, for purposes of this section only, waive the absence of any such default as a condition precedent to Customer's right to exercise the option:
        • (c) At the time that Customer gives such notice, and continuing until the first day of the Renewal Term, there shall not exist hereunder any default of Customer nor any event or circumstance that, with notice, the passage of time, or both, could ripen into a default.
        • (d) Customer is operating in the Premises in a manner consistent with the Building and Land.
        • Subsequent references to the "Term" of this agreement shall include the Term and the Renewal Term(s), if any, for which Customer effectively exercises the foregoing option. If all of the conditions stated to efficacy of the foregoing option are not timely satisfied, then this agreement shall expire on the last day of, as applicable, the expiring initial Term or Renewal Term. As of the date each Renewal Term begins, this agreement shall be deemed modified in the manner set forth above, without the necessity of any further agreement or document; provided, however that either party to this agreement shall, upon request of the other party, execute, acknowledge, and deliver an instrument evidencing such renewal and modification of this agreement.
      2. Renewal Term Costs. Costs for the Premises shall be increased on the first (1st) day of each Renewal Term to an amount equal to the current charges and an additional ten percent (10%). Within ten (10) days after CorePacket's receipt of Customer's written notice of the exercise of the Renewal Option as set forth in section (Renewal Option), CorePacket shall provide Customer with CorePacket's determination of the monthly cost of renewal totals. Upon CorePacket's written notice of determination of the monthly cost of renewal totals to Customer, Customer shall have ten (10) business days to accept or reject such terms in writing. Should Customer reject such terms, Customer shall have no further additional right to renew or extend the agreement term, and Customer shall vacate the Premises at the end the agreement term. Customer's failure to deliver written notice to CorePacket accepting or rejecting such terms within said ten (10) business day period shall be deemed Customer's acceptance of the same.
  2. Colocation.
    1. Installation. CorePacket grants you the right to operate Customer Equipment at the Colocation Space, as defined on your Order Form. The Colocation Space is provided on an "AS-IS" basis, and you may use the Colocation Space only for the purposes of maintaining and operating Customer Equipment as necessary to support local access communications facilities and links to third parties. Customer will install Customer Equipment in the Colocation Space after obtaining the appropriate authorization from CorePacket to access CorePacket's Premises. CorePacket's Premises include all CorePacket owned or leased property including Customer Colocation Space. Customer will remove and be solely responsible for all packaging of Customer Equipment.
    2. Access. You will have access to the Colocation Space on a 24-hour self-service basis. You may access the Colocation Space only in accordance with CorePacket's Security and Access Policies, a copy of which is available to you. Customer is responsible for any and all actions of Customer representatives and any escorted persons. No unescorted third-party persons may enter the Colocation space under any circumstances.
    3. Overconsumption of Resources. Customer is provided with abundant resources in an attempt to prevent downtime due to miscalculations. For this reason, overconsumption is possible. In the case of overconsumption, the customer will pay for overages at the current consumption rate plus a 15% utilization fee.
    4. Area Maintenance. Colocation areas are provided in a clean and safe environment. For the safety of others, and fair usage of these spaces, cleanliness is required in the datacenter. Food and drinks are not authorized in the datacenter. Any trash in the datacenter should be removed upon exiting the premises. Any trash or unauthorized items left behind by a client will result in a $50 cleaning fee on the first occurence, and $100 for every reoccurrence. Storage of equipment or accessories is authorized only in the racks in space that is leased by Customer. Customer is not to retain unnecessary items in the datacenter. Any storage or accessories that protrudes into space not leased to the customer will be charged fees totalling to the current rate for colocation services for each 1U of space used. Colocation space should be left in a tidy manner which includes cable management. Poor cable management can result in hot spots and poor circulation by equipment and environmental coolers. Cables should be neat and tidy and not protrude through rack doorways. Cable passageways exist in the tops of server racks for connection between racks.
    5. Photography and Video/Audio Recording. Photography and video/audio recording are not authorized in the leased space area. Anyone found recording, taking photos of the area, or recording audio without prior written authorization are in violation of this subsection and subject to the section for Breach of Contract. Customer is liable for any lawsuits or fines that result from unauthorized photography in the datacenter. Photography of personal equipment by a customer for the purposes of equipment maintenance or location is authorized as long as visibility of anything outside of their leased space in the rack is minimal.
    6. Removal of Customer Equipment. Customer will provide CorePacket with written notification two (2) days before Customer wishes to remove a significant piece of Customer Equipment. (This does not include replacing a piece of equipment with a similar piece of equipment). Before authorizing the removal of any significant Customer Equipment, CorePacket's accounting department will verify that Customer has no payments due to CorePacket. Once CorePacket authorizes removal of Customer Equipment, Customer will remove such Customer Equipment, and will be solely responsible to leave area in good operating condition at its own expense.
    7. Remote Hands. At the request of Customer, CorePacket may assist Customer in performing light duties or correcting minor problems such as circuit problems and/or outages, which may include:
      • (a) Rebooting of equipment
      • (b) Pressing of reset or other readily accessible buttons or switches
      • (c) Reconfiguration of non-restricted cables with push-on type connectors
      • (d) Working cooperatively with Customer and/or third party provider to locate and correct circuit problems.
      • (e) For additional assistance, Customer shall pay CorePacket a fee of $50.00 per hour for a minimum of one (1) hour for each occurrence in which assistance is required during normal business hours (8:30 am to 5:00 pm PST Monday through Friday, excluding holidays). A fee of $100.00 per hour and a minimum of three hours will apply to non-business hours and holidays.
    8. Relocation of Customer Equipment. CorePacket shall not arbitrarily or capriciously require Customer to relocate Customer Equipment; however, upon thirty (30) days written notice or, in the event of any emergency, CorePacket may require Customer to relocate Customer Equipment; provided however, the site of relocation shall afford comparable environmental conditions for the Customer Equipment and comparable accessibility to the Customer Equipment. In the event that CorePacket requires Customer to relocate Customer Equipment, all costs shall be borne by CorePacket.
  3. Security. CorePacket does not guarantee security of Customer Equipment or of the Colocation Space. CorePacket requires that you and your employees comply with all Colocation Security Procedures as defined on CorePacket's Security and Access Policies (a copy of which is available to you) in order to maximize the security of the CorePacket premises. Only individuals whom you have identified as "Customer Representatives" (and persons escorted by Customer Representatives) listed on your account will be permitted to enter the Colocation Space. Only Customer Representatives will be permitted to request Services on your behalf or to request any support services with respect to Customer Equipment. For good cause, CorePacket may suspend the right of any Customer Representative or other person to visit the CorePacket premises and/or the Colocation Space. CorePacket will assist in security breach detection and identification, but shall not be liable for any inability, failure or mistake in doing so.
  4. Internet, Local and Long Distance Services. Customer is responsible for activity on all Internet lines provided to Customer by CorePacket. Customer is also responsible for any and all fees associated with necessary cross-connects from CorePacket to provide point-to-point services. CorePacket Recurring Service Fees for such cross-connects are as indicated on the Order Form. CorePacket will install such lines to be dedicated to Customer's account for the specified term. Customer will be solely responsible for fees associated with such connections and for all payments due to CorePacket. Customer also understands that CorePacket does not manufacture utilized point-to-point devices and that CorePacket is not responsible or liable for performance (or non-performance) of such equipment.
  5. Resale of Services. Should Customer resell any portion of the Service to any other party, Customer assumes all liabilities arising out of or related to such third party sites and communication. Customer agrees to enter into written agreements with any and all parties to which it resells any portion of the Services with terms and conditions at least as restrictive and as protective of CorePacket's rights as the terms and conditions of this Agreement, including without limitation, Sections 2.3,3,4,6,7,8,9, and 10.
  6. Acceptable Use Guidelines. Customer must at all times conform its use of and comply with all sate and federal laws with respect to its operations in the Colocation Space. If CorePacket is informed by government authorities or other parties of illegal use of CorePacket's facilities or CorePacket otherwise learns of such use or has reason to believe such use may be occurring, then Customer will cooperate in any resulting investigation by CorePacket or government authorities. Any government determinations will be binding on Customer. If Customer fails to cooperate with any such investigation or determination, or fails to immediately rectify any illegal use, Customer will be in Breach (defined below) of this Agreement and CorePacket may immediately suspend Customer's Service.
  7. Insurance. Customer should keep in full force and effect during the term of this Agreement: (i) business loss and interruption insurance in an amount not less than that necessary to compensate Customer and its customers for complete failure of Service; (ii) comprehensive generally liability insurance; (iii) employer's liability insurance; and (iv) worker's compensation insurance. Customer agrees that Customer and its agents and representative shall not pursue any claims against CorePacket for any liability CorePacket may have under or relating to this Agreement unless and until Customer or Customer's employee, as applicable first makes claims against Customer's insurance provider(s) and such insurance provider(s) finally resolve(s) such claims. Customer should try to name CorePacket as an additional insured on all general liability insurance.
  8. Limitations of Liability.
    1. Personal Injury. Each Customer Representative and any other persons visiting CorePacket facilities does so at his or her own risk and CorePacket shall not be liable for any harm to such persons resulting from any cause other than CorePackets' gross negligence or willful misconduct resulting in personal injury to such persons during such a visit.
    2. Damage to Customer Business. In no event shall CorePacket be liable to Customer, any Customer Representative, or any third party for any claims arising out of or related to Customer's business, Customer's customers or clients, Customer Representative's activities at CorePacket or otherwise, or for any lost revenue, lost profits, replacement goods, loss of technology, rights or service, incidental, punitive, indirect or consequential damages, loss of data, or interruption or loss of use of Service or of any Customer's business, even if advised of the possibility of such damages, whether under theory of contract, tort (including negligence), strict liability or otherwise.
    3. Damage to Customer Equipment. CorePacket assumes no liability for any damage to, or loss of, any Customer Equipment resulting from any cause other than CorePackets' gross negligence or willful misconduct. In no event will CorePacket be liable to Customer, any Customer Representative, or any third party for any claims arising out of or related to Customer Equipment of any lost revenue, lost profits, replacement good, loss of technology, rights or services incidental, punitive, indirect or consequential damages, loss of data, or interruption or loss of use of any Customer Equipment, even if advised of the possibility of such damages, whether under theory of contract, tort (including negligence), strict liability or otherwise.
  9. Defense of Third Party Claims and Indemnification.
    1. Defense. Customer will defend CorePacket, its director, officers, employees, affiliates and customers (collectively, the "Covered Entities") from and against any and all claims, actions or demand brought by or against CorePacket and/or any of the Covered Entities alleging: (a) with respect to the Customer's business: (i) infringement or misappropriation of any intellectual property rights; (ii) defamation, libel, slander, obscenity, pornography, or violation of the rights of privacy or publicity; or (iii) spamming, or any other offensive harassing or illegal conduct or violation of the Acceptable Use Guidelines or Anti-Spam Policy; (b) any damage or destruction to the Colocation Space, CorePacket premises, CorePacket Equipment or to any other CorePacket customer which damage is caused by or otherwise results from acts or omissions by Customer, Customer representative or Customer's designees; (c) any personal injury or property damage to any Customer employee, Customer Representative or other Customer designee arising out of such individual's activities related to the Services, unless such injury or property damage is caused solely by CorePacket's gross negligence or will misconduct; or (d) any other damage arising from the Customer Equipment or Customer's business (collectively, the "Covered Claims"). In the event of any claim under this paragraph, CorePacket may select its own counsel.
    2. Indemnification. Customer hereby agrees to indemnify CorePacket and each Covered Entity from and against all damages, costs, and fees awarded in favor of third parties in each Covered Claim, and Customer will indemnify and hold harmless CorePacket and each Covered Entity from and against all claims, demand, liabilities, losses, damages, expenses and costs (including reasonable attorney fees) (collectively, "Losses") suffered by CorePacket and each Covered Entity which Losses result from or arise out of a Covered Claim.
    3. Notification. Customer will provide CorePacket with prompt written notice of each Covered Claim of which Customer becomes aware, and, at CorePacket's sole option, CorePacket may elect to participate in the defense and settlement of a Covered Claim, provided that such participation shall not relieve Customer of any of its obligation under this Section.
  10. Reliance on Disclaimer, Liability Limitations and Indemnification Obligations. Customer acknowledges that CorePacket has set its prices and entered into this Agreement in reliance upon the limitations and exclusions of liability, the disclaimers of warranties and damages and Customer's indemnity obligations set forth herein, and that the same form an essential basis of the bargain between the parties. The parties agree that the limitations and exclusions of liability and disclaimers specified in this Agreement will survive and apply even if this Agreement is found to have failed of their essential purpose.
  11. Conditions of Breach. Breach of this Agreement will occur if either party does not fulfill its obligations under this Agreement and such Breach is not cured within fifteen (15) days of written notice by the other party. Specifically relating to payment of Recurring Service Fees, the Customer will be in Breach of this Agreement if Customer has not paid its invoice within thirty (30) days of the invoice due.
  12. Remedies for Breach. If Customer is in Breach of this Agreement, CorePacket may (a) discontinue all Services to Customer; (b) disconnect Customer from its Internet, power and telecommunications services; (c) remove Customer Equipment from Colocation Space and place in storage; and (d) order Customer to pay any and all amounts due to the date that the Customer Equipment was removed and order Customer to buy out the remaining term of the Agreement as specified in the Section ("Early Buy Out"). If CorePacket is in Breach of the Agreement, Customer has the right to withhold recurring Service Fees for the time period from which the Breach occurred to the date that the Breach was cured.
  13. Early Buy Out. If Customer wishes to terminate this Agreement prior to the date specified on the Order Form, it may elect an Early Buy Out. If the Customer is in Breach of this Agreement, CorePacket may order the Customer to purchase an Early Buy Out. The amount due in an early buyout shall be the sum of the following:

    Outside 90 days of contract termination date: Exactly half of the total sum of the remainder of this agreement starting from the last day of the current month.
    Within 90 days of contract termination date: The entire total sum of the remainder of this agreement starting from the last day of the current month.

    In addition to these costs, the total amount due for the current month's term will still be due in full with no modifications or discounts.
  14. Miscellaneous Provisions.
    1. 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 its reasonable control, including act 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.
    2. No Lease. This Agreement is a services agreement and is not intended to and will not constitute a lease of any real or personal property. In particular, Customer acknowledges and agrees that Customer has not been granted any real property interest in the Colocation Space or other CorePacket premises, and Customer has no rights as a tenant or otherwise under any real property or landlord/tenant laws, regulation or ordinances.
    3. Government Regulations. Customer will not export, re-export, transfer, or make available, whether directly or indirectly, any regulated item or information to anyone outside the U.S. in connection with this Agreement without first complying with all export control laws and regulations which may be imposed by the U.S. Government and any country or organization of nations within whose jurisdiction Customer operates or does business.
    4. Assignment. Neither party may assign its rights or delegate its duties under this Agreement either in whole or in part without the prior written consent of the other party that should not be unreasonably withheld, except to a party that acquires substantially all of the assigning party's assets or a majority of its stock as part of a corporate merger or acquisition. 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.
    5. Notices. Any notice or communication required or permitted to be given hereunder may be delivered personally, electronically mailed, deposited with an overnight courier, sent by confirmed facsimile, or mailed by registered or certified mail, return receipt requested, postage prepaid, in each case to the address of the receiving party first indicated above, or at such other address as either party may provide to the other by written notice. Such notice will be deemed to have been given as of the date it is delivered, or five (5) days after mailed or sent, whichever is earlier. Electronic mail receipt must be requested and confirmed.
    6. Relationship of Parties. CorePacket and Customer are independent contractors and this Agreement will not establish any relationship of partnership, joint venture, employment, franchise or agency between CorePacket and Customer. Neither CorePacket 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 herein.
    7. Choice of Law and Arbitration. This Agreement will be governed by and construed in accordance with the laws of the State of Oregon. Each party agrees to submit any and all disputes concerning this Agreement, if not resolved between the parties, to binding arbitration under one (1) neutral, independent and impartial arbitrator in accordance with the Commercial Rules of the American Arbitration Association ("AAA"); provided, however, the arbitrator may not vary, modify or disregard any of the provisions contained in this Section. The decision and any award resulting from such arbitration shall be final and binding. The arbitrator is not empowered to award damages in excess of compensatory damages and each party hereby irrevocably waives any right to recover such damages with respect to any dispute resolved by arbitration. Both parties shall equally share the fees of the arbitrator. The arbitrator may award attorney's fees to the prevailing party as determined by the arbitrator.
    8. Changes Prior to Execution. Customer represent and warrants that it made no changes to this Agreement prior to providing this Agreement to CorePacket for its acceptance and execution, and that CorePacket alone incorporated any and all changes negotiated between, and accepted by, Customer and CorePacket into this Agreement or into an addendum executed by both parties.
    9. Entire Agreement. This Agreement, together with the Order Form and CorePacket policies referred to in this Agreement represents the complete agreement and understanding of the parties with respect to the subject matter herein, and supersedes any other agreement or understanding, written or oral. This Agreement may be modified only through a written instrument signed by both parties. Both parties represent and warrant that they have full corporate power and authority to execute and deliver this Agreement and to perform their obligations under this Agreement and the person whose signature appears above is duly authorized to enter into this Agreement on behalf of the respective party. Should any terms of this Agreement be declared void or unenforceable by any arbitrator or court of competent jurisdiction, such terms will be amended to achieve as nearly as possible the same economic effect as the original terms and the remainder of the Agreement will remain in full force and effect. If a conflict arises between Customer's purchase order terms and this Agreement, this Agreement shall take precedence. In the case of international, federal, state or local provisions to the contrary on the face of this purchase order, attachments to this purchase order, or on the reverse side of this purchase order, this purchase order is being used for administrative purposes only, and this purchase order is placed under the subject solely to the terms and conditions of this Agreement executed between Customer and CorePacket.
  15. Agreement Acceptance.
    1. Explicit Agreement. If written signature is affixed to the bottom of a Service Agreement, the Agreement shall stand as it is written until the anniversary of service start. After such anniversary, this electronic version will be the enforced agreement.
    2. Implied Agreement. Except during service dates which an Explicit Agreement applies, Implied Agreement will be provided upon payment of the first Invoice for rendered services. Implied Agreement will be extended upon each service anniversary that services are continued.

END OF COLOCATION AGREEMENT