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  COLLOCATION AND SERVICE AGREEMENT

This Collocation Agreement (the "Agreement") is made between The Company Networks, Inc., a State corporation ("The Company") and ___________________________________, a _______________________ corporation, ("Customer").

1. Collocation Services.  The Company agrees to provide Customer the following Collocation Services.

1.1. Collocation Space.  The Company will provide Customer with the specified quantity of equipment cabinets with the services ordered in Exhibit B in a conditioned environment with controlled access for operation on a shared, no-wall basis, including UPS electricity, generator-backed electricity and air-conditioning capable of maintaining proper operating temperature.  Equipment space is located in the building located at 12101 International Boulevard, Seattle, State 98168, ("Building") in the area shown in Exhibit D ("Equipment Space") and is provided for the installation, operation, repair, replacement and removal of Customer communications equipment ("Equipment").  Customer may add Equipment to the Equipment Space after the parties have signed an additional Exhibit B to this Agreement.

1.2. Cross Connects. The Company will provide cross-connection from the Equipment Space to Customer’s choice of carriers at The Company’s cross-connect panels located in the Building’s Communication Termination Room.  Cabling from the Equipment Space to the cross‑connect panel, and connections at the cross‑connect panel shall be provided by The Company and its personnel only.

1.3. Security and Access.  The Company will provide, and Customer will comply with, reasonable security measures, including use of security access cards and signed acknowledgment of The Company’s Security Policy by Customer’s employees or contractors, that restrict access to the Equipment Space by persons who are not employees or agents of Customer or other occupants of the Equipment Space.  Customer will have access to the Equipment Space common areas and to the Equipment Space on a 24x7x365 basis.  The Company will provide security access cards up to a maximum of ten (10).  Additional security access cards are available for a fee.  The Company will provide two (2) keys per rack, with additional keys available for a fee.

1.4. Service Level Guarantee.  The Company will guarantee Network, Power, Installation Availability and Reporting , if applicable, as shown in Exhibit A  (“The Company Service Level Guarantee”).

2. Term. The term of this Agreement ("Initial Term") will be for two years, beginning on ______________ ("Commencement Date").  Provided that Customer has not been in default at any time during the Initial Term of this Agreement, Customer will have the option to renew the term of this Agreement for an additional period of one year ("Renewal Term") by giving written notice to The Company no less than ninety (90) days prior to the end of the Initial Term of this Agreement. (The "Initial Term" and the "Renewal Term" are collectively referred to as the "Term".)  Further renewals shall require the mutual agreement of both The Company and Customer.

3. Fees and Payments.

3.1. Fees and Payments.   Customer will pay to The Company a non-recurring fee and a monthly fee, described in Exhibit B (“The Company Collocation Order”).  The recurring fee (“Fee”) shall be effective with the Commencement Date and invoiced on a monthly basis in advance; set-up and non-recurring fees shall be invoiced in arrears.  The first and last months’ Fee will be prorated if the Commencement Date is not on the first day of a month.  Fees are due within ten (10) days from the invoice date.  Any payment received by The Company later than such 10 days from the invoice date shall be subject to a late charge on delinquent amounts at the rate of 1.5% per month of the past-due balances, not to exceed the maximum lawful rate allowed.

3.2. Security Deposit.  Customer shall furnish to The Company on or before the Commencement Date  a security cash deposit amount equal to two (2) months Monthly Recurring Service Fee.  The security deposit shall not bear interest (unless required by law) and shall be held by The Company until Customer’s obligations under the Agreement have been satisfied and this Agreement has expired or been terminated.  In the event of default by Customer of any such obligation, all deposits shall immediately forfeit to The Company and may be setoff against Customer’s obligations to The Company.

3.3. Fee Increases.  On each anniversary date of the Commencement Date, the Fee will increase by an amount no greater than 4% of the Fee that was due during the preceding year of this Agreement.  The Fee will be applied to Customer’s monthly invoice..  The Company also reserves the right to pass through to Customer any increase in fees and charges by third parties due hereunder upon notice to Customer of any increases in tariffs, fees, or other amounts charged to The Company in connection with the delivery of services provided under this Agreement as of the date such increases are effective.

4. Construction and Operations. 

4.1. Plans.  Prior to the commencement of any work in the Building, Customer must deliver to The Company working drawings, plans and specifications for such work ("Plans") detailing the type, size and location of Customer's Equipment, cross connect requirements and the Building Cable Runs required by Customer.  Customer and its agents may not begin work until The Company has approved the Plans and the Equipment, and the Equipment will be installed in compliance with the Plans.

4.2. Installation and Operating Activities.  Customer agrees that all activities, including construction, installation, operations, maintenance and repairs will be performed in a neat, responsible, safe and professional manner, using generally accepted industry standards, consistent with such reasonable requirements that may be imposed by The Company.  In the event of any interference caused to existing equipment by Customer's equipment, Customer agrees to deactivate its Equipment promptly and resolve the interference problem before returning such Equipment into service.  Customer agrees to cooperate with other occupants of the Building to resolve any interference problems that may affect Customer's Equipment.  Customer shall be responsible for the prompt payment of any liens for any provider of labor or material. Customer agrees to observe and abide by “The Company Rules and Regulations” specified in Exhibit C, attached hereto and made part of this Agreement.  Customer acknowledges that The Company, at its sole discretion, may add to, delete, modify or amend the rules and regulations from time to time.  A copy of the new rules and regulations will be given to the Customer by fax, e-mail, regular mail or personal delivery.

4.3. Permits.  Prior to any construction in the Building, Customer must obtain any necessary federal, state, and municipal permits, licenses and approvals, copies of which will be delivered to The Company, upon request, prior to commencement of construction and work.  Customer will comply with all applicable laws, rules and regulations when installing its Equipment.

5. Insurance.

5.1. Policies.  Customer shall maintain in force, at its expense, during the Term of this Agreement, policies of:

5.1.1. Commercial General Liability Insurance with a combined single limit of Two (2) Million Dollars for injury or death or property damage.

5.1.2. Workers compensation pursuant to applicable state and local statutes.

5.1.3. All risk property insurance on its Equipment sufficient to cover total loss thereof.

5.2. Proof of Insurance. Customer agrees to provide proof of such insurance as requested by  The Company prior to the commencement of any construction in the Building.  Customer agrees to obtain an agreement with its insurers to notify The Company in writing that a policy is due to expire at least 30 days prior to such expiration.

5.3. Primary Insurance; Additional Insured.  Customer's insurance shall contain provisions providing that such insurance shall be primary insurance insofar as The Company and Customer are concerned, with any other insurance maintained by The Company being excess and non-contributing with the insurance of Customer required hereunder.  Customer shall name The Company as additional insured to the Commercial General Liability Insurance policy.

5.4. Release and Waiver of Subrogation Rights.  To the extent allowable under State law, The Company and Customer each release the other and their respective agents and employees from all liability to each other, or anyone claiming through or under them, by way of subrogation or otherwise, for any loss or damage to property caused by or resulting from risks insured against under this Agreement, pursuant to insurance policies carried by the parties which are in force at the time of the loss or damage.  The provisions of this subparagraph shall survive termination of this Agreement.

6. "As-Is" Space. Customer has inspected the Equipment Space, the Building cable runs, the Communication Termination Room and the Building and accepts the same "as is" and agrees that The Company is under no obligation to perform any work, or to provide any services or materials to prepare the same for Customer, unless specifically agreed in writing in Exhibits A or B to this Agreement.

7. Compliance With Laws.  Customer shall be the primary operator and shall obey and adhere to all applicable Federal and state laws, rules, regulations, and guidelines concerning use of the Equipment Space. 

8. Limitation of Liability.  Customer agrees that Customer is solely responsible for anything not developed or supplied by The Company and that The Company shall have no responsibility whatsoever for mistakes, errors, bugs, defects or any acts of omission or omissions by Customer’s agents or employees or those of third parties.  Customer agrees that it is solely responsible for its use of the Equipment Space, including, but not limited to, any use by Customer’s employees, agents, subsidiaries and further agrees to indemnify, defend, and hold The Company harmless for any liability, direct, indirect, consequential or otherwise, incurred as a result of any breach of the foregoing. In addition, Customer agrees that The Company's liability under this Agreement, if any, shall be limited to direct, objectively measurable damages, and will not exceed: (i) the total Fees payable to The Company during the month(s) that the Collocation Services were affected by the condition that gave rise to the claim for damages, or (ii) One Hundred Thousand Dollars ($100,000), whichever is less.  The parties acknowledge that these limitations on potential liabilities were an essential element in setting consideration under this Agreement.

9. Force Majeure.  The Company shall not be liable for any loss or damage whatsoever caused by delays, failures of performance, damage, destruction, or malfunction of switching equipment, or any loss or damage occasioned by fire, the elements, labor disputes, shortages, utility curtailments, explosions, cable cuts, acts of God, government requisition, changes in government regulation, acts or omissions of third parties or any other cause beyond The Company’s reasonable control.

10. Exchange of Information.  Both parties shall mark as confidential all information provided by each party to the other, which is considered by the disclosing party to be confidential information.  The party receiving such confidential information shall not use or disclose such confidential information to any third party, except to the extent required by the law, to a government agency or department or to enforce its rights or carry out its duties under this Agreement.

11. Indemnification.  Customer shall indemnify and hold The Company, its principals, officers, directors, agents, employees and servants harmless from and against any loss, cost, damage and expense of whatever kind arising directly or indirectly from the construction, installation, operation, maintenance, repair, and removal of Customer's Equipment or from Customer's breach of this Agreement, including, but not limited to, reasonable attorneys fees and court costs, except to the extent such loss, damage, cost or expense is due to the gross negligence or willful misconduct of The Company or its employees, agents or invitees.  The provisions of this Paragraph shall survive termination of this Agreement.

12. Default.  It shall be considered a default of this Agreement if any one or more of the following events occurs:

12.1. Bankruptcy.  The filing of bankruptcy by a party or making a general assignment for the benefit of creditors;

12.2. Violation of Law.  A party violates any applicable laws, statutes, ordinances, codes or other legal requirements with respect to services specified in Paragraph 1 and such violation(s) are not remedied within fourteen (14) days after written notice thereof; or

12.3. Non-Performance.  A party fails to perform its obligations under this Agreement and such non-performance is not remedied within fourteen (14) days after notice thereof.

12.4. Fees.  If Customer shall default in the payment of any Fees or other sum or money due The Company hereunder and such default shall continue for a period of ten (10) days after receipt of written notification by The Company to Customer of such default.

13. Remedies and Effect of Termination. 

13.1. Remedies.  Upon or after the occurrence of a default as described above, the non-defaulting party may elect to terminate this Agreement and may pursue any other damages to which the non-defaulting party may be entitled at law or in equity.

13.2. Removal of Equipment.  At the expiration or earlier termination of this Agreement (“Termination Date”), Customer shall remove its Equipment and personal property from the Building.  Any property not so removed within sixty (60) days after the Termination Date may, at The Company’s sole option, (i) be removed and stored or disposed of by The Company at Customer’s expense; or (ii) become the property of The Company without compensation to Customer.

14. Subletting and Assignment.  Customer may not sublet or assign it rights under this Agreement, or rent, sell, transfer or otherwise allow others to use the Equipment Space or any equipment located therein without the prior written agreement of The Company, which consent may be withheld by The Company in its sole discretion.

15. Litigation Expenses.  In any suit or legal proceeding arising out of this Agreement, the prevailing party shall be entitled to recover all reasonable expenses and costs (including attorneys fees at any hearing and on any appeal therefrom), which obligation shall survive the termination of the Agreement.

16. Notices.  Any notices or demands under this Agreement shall be in writing and shall be deemed given upon (a) personal delivery to the addressee, (b) five (5) days after deposit into United States mail, postage prepaid, certified mail, return receipt requested, or (c) one business day after delivery to United States Postal Service Express Mail or similar overnight delivery service.  Until notified of a different address, as provided herein, all notices shall be addressed:

The Network

CUSTOMER

The Networks, Inc.

Xxxx  Any Street

My Town, Any State  9xxxxx

Attn: 

 

 

 

 

 

 

17. Waiver.  The waiver by The Company of any breach of any term, covenant or condition herein contained shall not be deemed to be a waiver of such terms, covenant, or condition for any subsequent breach of the same or any other term, covenant or condition herein contained.

18. Governing Law; Venue. Any claims arising under or relating to this Agreement shall be governed by the internal substantive laws of the State of State or federal courts located in State, without regard to principles of conflict of laws.  Each party agrees to the exclusive jurisdiction of the state and federal courts in the state of State.

19. Miscellaneous.  The Company and Customer agree to keep confidential the financial terms of this Agreement.  The obligations of The Company under this Agreement shall no longer be binding upon The Company in the event that The Company assigns or otherwise transfers its interest in the Building to a third party.  The terms and conditions contained herein supersede all prior oral or written understandings between the parties and constitute the entire agreement between them concerning the subject matter of this Agreement.  This Agreement shall not be modified or amended except in writing signed by authorized representatives of the parties.  This Agreement may be executed in any number of counterparts (including facsimile copies), and it will become an enforceable agreement once both parties have delivered a signed counterpart to the other.  In proving this Agreement, it will not be necessary to produce or account for the original counterpart signed by the party against whom the proof is being presented.

IN WITNESS WHEREOF, The Company and Customer have executed this Agreement as of the date written below.

THE COMPANY NETWORKS, INC.

 

                                                                       

Signature

                                                                      

Title

                                                                       

Date

CUSTOMER

 

                                                                       

Signature

                                                                     

Title

                                                                       

Date


 

Exhibit A:  Service Level Guarantee–—Collocation

The Company Network Availability Guarantee

The Company Network connectivity provided to collocation customers will be available 100% of the time and, as set forth below, The Company will automatically credit your account if The Company fails to meet this Availability Guarantee.  "Network Unavailability" consists of the number of minutes that the Company Network was not available, excepting unavailability due to:

·        Customer circuits or equipment

·        Customer's applications or equipment

·        Acts or omissions of Customer or Customer’s agents or authorized users

·        The Company’s network maintenance window

·        Reasons of Force Majeure

The Company will issue a non-refundable credit equal to one (1) day of the The Company recurring service Fee for Rack space for each hour (or portion thereof) of Network Unavailability during any given calendar month, to a maximum of one month’s recurring service fee for the affected service.

The Company Power Availability Guarantee

The The Company DC and AC power provided to your collocation rack will be available 100% of the time and, as set forth below, The Company will automatically credit your account if The Company fails to meet this Power Availability Guarantee.  "Power Unavailability" consists of the number of minutes that power was not available to your collocation rack, but will not include unavailability resulting from:

·        Customer circuits, applications or equipment, including simplexed DC devices

·        Acts or omissions of Customer or Customer’s agents or authorized users

·        Reasons of Force Majeure

The Company will issue a non-refundable credit equal to one (1) day of the The Company recurring service Fee for Power for each hour (or portion thereof) of Power Unavailability during any given calendar month, to a maximum of one month’s recurring service fee for the affected service.

Exhibit A:  Service Level Guarantee–—Collocation

The Company Installation Guarantee

The Company's Collocation Installation Guarantee commits that The Company will have your racks in a “ready to install” state and network connectivity available within 7 calendar days.

The installation due date will be counted from the date The Company has received your signed Service Agreement and your completed collocation configuration plan. Allowance for Customer-caused delays will be added to the count of guaranteed installation days. The Collocation Install Guarantee is not available for:

·        Customer-ordered circuits

·        Installation delays attributable to Customer Equipment

·        Acts, omissions or plan revisions of Customer, its employees or agents

·        Reasons of Force Majeure

Should The Company fail to meet this Collocation Installation Guarantee, the Rack Set Up Fee will be waived for each rack not connected by the guaranteed installation date.

The Company REPORTING Guarantee

The Company's Reporting Guarantee commits that The Company will notify your designated point of contact within 15 minutes after The Company’s determination that your service is unavailable.  Contact will be made via The Company’s preferred method.  Should The Company fail to meet its Reporting Guarantee on one or more occasions for the same service-affecting condition, The Company will issue a non-refundable credit of one month’s fees for the Support service that The Company provides to Customer.

The Guarantee is null and void if the Reporting failure is due to:

·        Customer’s failure to provide and maintain accurate contact and equipment information

·        Customer’s failure to access messages left by The Company personnel

·        Reasons of Force Majeure

 

 

 

 

 

 

 

 

 

Exhibit B:  Collocation Order Form

 

 

 

 

 

 

Company

 

 

 

Contact:

 

 

 

Address:

 

 

 

 

 

 

 

City, State

 

 

 

Zip:

 

 

 

Phone:

 

 

 

Email:

 

Fax:

 

 

 

 

 

 

 

 

 

Product #

Description

Quantity

Unit

Monthly Fee

Setup Fee

Total Monthly Fees

Total Setup Charges

 

19 inch Rack (84”H X 23.75"W X 24.875"D)

 includes 30 amps of DC power (Caged and

 Extended Depth Rack(s) Optional on Request)

 

 

Each

 

$1,650.00

 

$2,200.00

 

 

 

23 inch Rack (7'H X 27.75"W X 24.875"D)

includes 30 amps of DC power (Caged and

Extended Depth Rack(s) Optional on Request)

 

 

Each

 

$2,150.00

 

$2,500.00

 

 

 

Power:  Additional 30A Service, per circuit

 

Each

$95.00

$1170.00

 

 

 

Power:  Additional 20A Service, per circuit

 

Each

$65.00

$1170.00

 

 

 

Bandwidth Cap per MB per port (non-burstable)

 

Mbps

$400.00

$1,500.00

 

 

 

Shadow connection per port

 

Port

$2,500.00

$1,500.00

 

 

 

Port Usage Fee

 

Port

$1200.00

$300.00

 

 

 

GPS Clock Service

 

 

$150.00

$270.00

 

 

 

POTS Line  (Ordered by/billed to Customer)

 

Each

N/C

$170.00

N/C

 

 

Carrier Access Links (Ordered by/billed to Customer)

 

Each

N/C

$200.00

N/C

 

 

Interconnect Internal Wiring

 

Each

N/C

$210.00

N/C

 

 

Primary DNS Server - per domain

 

 

$35.00

N/C

 

N/C

 

Silver Support: 7X24X365; 4 hour response (first two hours of use = N/C)

 

Per hour after first 2 hours

$250.00

N/C

 

N/C

 

Gold Support: 7X24X365; 2 hour response (first two hours of use = N/C)

 

Per hour after first 2 hours

$350.00

N/C

 

N/C

 

Platinum Support: 7X24X365; 1 hour response (first two hours of use = N/C)

 

Per hour after first 2 hours

$450.00

N/C

 

N/C

 

Additional Silver Support

 

Per hour after first 2 hours

$100.00

N/C

 

N/C

 

Additional Gold Support

 

Per hour after first 2 hours

$150.00

N/C

 

N/C

 

Additional Platinum Support

 

Per hour after first 2 hours

$200.00

 

N/C

 

N/C

 

Server Reboot

 

Per Incident

$50.00

N/C

 

N/C

 

Receive Equipment (Labor)

 

Hourly

 

$75.00

 

 

 

Store Equipment (First seven days = N/C) per

“rack space” equivalent

 

Daily

 

$27.50

 

 

 

Value Added Services:  Please ask your The Company consultant for assistance

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

TOTAL FEES

 

 

 

 

 

 

 

_____________________________________________                                                                           ______________________

Company Authorized Signature                                                     Date

Exhibit C:  Collocation Rules and Regulations

Customer shall provide The Company with and maintain a current equipment list.  Equipment shall be inventoried along with actual or assigned serial number and placed on a rack securely at an exact shelf rack-unit position.

The Company will provide an Assembly Room in which Customer may prepare equipment for installation.  Prior to bringing any equipment into the Equipment Room, Customer shall remove all packaging from equipment and discard packaging in either recycle bins or in trash containers.  Customer will inform The Company of all delivery arrangements at least forty-eight hours in advance.

Customer may not bring food, beverages, or any flammable material into the Equipment Room.

Non-Employees and/or non-vendors performing work on behalf of Customer must sign The Company Non-disclosure Agreement.

Customer shall not make any alterations or installations of any kind in or to the Space without The Company’s prior written consent.

Customer will not take or permit any action that disrupts The Company’s local area network or routers, including activities that might generate excessive or disruptive traffic.

Customer will not obtain or attempt to obtain the passwords of others, make unauthorized attempts to access The Company’s Equipment Room or systems and networks of others or to circumvent the security procedures established by The Company, attempt to disable or interfere with the use or operation of The Company’s Network Operations Center or the systems and networks of others.

Customer and customer’s agents will follow The Company’s Safety and Security Policy, which includes but is not limited to these rules:

  • The Company security access card (badge) must be worn while on The Company premises.  The Company security badge must be clearly visible, picture side out.  Security badges cannot be loaned to others and access will not be granted to non-employees who arrive without a badge. 
  • When accessing the Equipment Room, badges must be used to enter and to exit. In the future, a finger bioscan will also be required to enter.
  • Security badges are the property of The Company Networks and must be surrendered when requested by an authorized The Company employee.

These rules are subject to change at any time on reasonable notice, which may include immediate notice, in the sole discretion of The Company


 





 

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