VOLOGON PRODUCTIONS, LLC – Colocation Master Services Agreement
This COLOCATION MASTER SERVICES AGREEMENT TO THE COLOCATION SERVICE ORDER, including the Schedule of Equipment and the Service Level Agreement attached hereto as exhibits and incorporated herein by reference (“Terms and Conditions”) is entered into by Vologon Productions, LLC (collectively referred to as “VOLOGON”) and are made a part of VOLOGON’s standard-form COLOCATION SERVICE ORDER (hereinafter referred to as the “Colocation Contract”) made by and between VOLOGON and the Customer identified therein. The Colocation Contract is incorporated by reference as if fully set forth herein. Capitalized terms not defined herein shall have the same meaning as in the Colocation Contract.
1. THE LEASE. VOLOGON leased the Premises in the Building from the Owner pursuant to a lease agreement (“Lease”). Pursuant to the Lease, VOLOGON has the right to execute license and colocation agreements with third parties for space in the Premises.
2. GRANT OF LICENSE; TERM; PERMITTED USES; NO REAL PROPERTY INTEREST.
Customer owns the computer and related communications equipment (“Equipment”) more particularly described in the Schedule of Equipment attached hereto as Exhibit “A” and incorporated herein by reference.
(a) Grant of License. VOLOGON hereby grants to Customer the right and non-exclusive license (“License”) to operate the Equipment in the specific space or spaces (“Space”) located in the Premises (“Premises”) in the Building, as specified by VOLOGON. The License is granted for the Term and for the Permitted Uses set forth below. Notwithstanding the foregoing, VOLOGON 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. Customer may not assign the Colocation Contract, sub-license the Space or allow any other person or entity to use the Space for any reason, without first obtaining the prior written consent of VOLOGON.
(b) Term. The Colocation Contract and the license granted herein shall each commence on the date set forth in the Colocation Contract 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 VOLOGON 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, 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.
3. Fees Required to Begin Service. On the date of execution of the Colocation Contract, Customer agrees to and shall pay to VOLOGON that amount which is equal to the sum of (a) the cost to (unless otherwise waived) install the racks, cabinets, cages, custom space, electrical circuits, fiber optic connections, cable, panels and other items necessary for the Equipment to function in the Space (“Expense Component”), plus (b) a prepayment equal to the number of month’s recurring fees determined by VOLOGON (the “Fee Component”) (hereinafter together, the “Fees Required to Begin Service”). The Expense Component shall be applied by VOLOGON to pay the costs and expenses referenced in the Colocation Service Order. The Expense Component is not refundable to Customer, and shall be deemed earned by VOLOGON upon receipt. The Fee Component shall be applied by VOLOGON to prepayment of the Fee due from Customer for the first month or months of the Term. The Fee Component is not refundable to Customer, and shall be deemed earned by VOLOGON upon receipt.
4. AGREEMENT TO PROVIDE SERVICES AND PAY FEES; SERVICE LEVEL AGREEMENT. Pursuant to the Colocation Contract, VOLOGON has agreed to provide certain services (“Services”) to the Customer, and the Customer has agreed to pay certain fees (“Fees”) to VOLOGON in consideration therefore. VOLOGON shall have the right to increase the Fees: (a) after 12 (twelve) months of service in proportion to increases in the Consumer Price Index applicable to the geographic area where the Building is located, plus two percent (2%) and/or (b) anytime in proportion to increases in electricity costs applicable to the geographic area where the Building is located. Customer shall have the right to purchase additional Services offered by VOLOGON from time to time on terms and conditions to be agreed in writing. VOLOGON agrees to provide the Services in accordance with and pursuant to the terms and conditions set forth in the Service Level Agreement attached hereto as Exhibit “B” and incorporated herein by reference.
5. PAYMENT OF FEES; DUE DATE; LATE CHARGE; DEFAULT INTEREST. On or before the day stated on the contract each and every month during the Term hereof (each, a “Due Date”), Customer agrees to and shall pay the Fees to VOLOGON, in advance, for the Services to be rendered by VOLOGON to Customer during said 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 VOLOGON 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 VOLOGON may charge interest on all due but unpaid Fees at the lesser of 18% per month or the maximum non-usurious rate under applicable law (“Default Interest”) until paid in full. Customer agrees to and shall pay to VOLOGON for all costs of collection of the Fees, Default Interest and Late Charges plus VOLOGON’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 Colocation Contract. If Customer requests that VOLOGON provide services not specifically set forth herein and VOLOGON agrees to provide such services, Customer agrees to pay VOLOGON’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. VOLOGON may suspend any or all Services to Customer if payment for any Service is overdue. 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.
6. RULES AND REGULATIONS. 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 VOLOGON (whether written or published on VOLOGON’s website) http://www.vologon.com.
7. CONFIDENTIALITY. VOLOGON and Customer, for itself, its agents, employees and representatives, agrees that it will not divulge any confidential or proprietary information it receives from the other party, except as may be required by law.
8. INSURANCE. (Optional but recommended) Customer is encouraged to maintain in force and effect during the Term of the Colocation Contract, a policy or policies of commercial general liability insurance, with a company licensed to do business within the state where the Building is located, insuring Customer against all hazards and risks customarily insured against by persons locating equipment such as the Equipment in space in buildings such as the Space in the Building. The policy shall be written on a per-occurrence basis with blanket contractual liability coverage, with respect to use of the Space in the Premises and operation of Customer’s business therein, with a combined single-limit coverage of not less than Fifty Thousand Dollars ($50,000) and aggregate umbrella coverage of not less than an additional Fifty Thousand Dollars ($50,000). Customer shall maintain property insurance (inclusive of coverage for data, media and electronic data processing perils) written on a “Special Form” basis at full replacement cost value. Customer’s policies shall contain provisions providing that such insurance shall be primary insurance insofar as Customer is concerned, with any other insurance maintained by VOLOGON being excess and noncontributing with the insurance of Customer required hereunder; and the same shall provide coverage for the contractual liability of Customer to indemnify VOLOGON. Each of Customer’s policies shall name VOLOGON PRODUCTIONS, LLC which leases the Premises from the Owner of the Building, and any additional persons, or entities that VOLOGON may reasonably designate in writing, as “additional insureds”. All such policies shall provide that Customer’s insurer waives all rights of subrogation against VOLOGON. Customer shall obtain all such policies with carriers having an A.M. Best rating of A- VIII or better. Each such policy shall provide that it cannot be canceled or modified unless VOLOGON is given thirty (30) calendar days advance written notice of such cancellation or modification. The insurance requirements set forth herein are independent of Customer’s indemnification and other obligations hereunder and shall not be construed or interpreted in any way to restrict, limit, or modify Customer’s indemnification and other obligations, or to limit Customer’s liability.
9. INDEMNITY. Customer and VOLOGON and their respective officers, directors, shareholders, employees, agents, representatives, parent companies, affiliated companies and subsidiary companies (each, as an “Indemnifying Party”) each hereby agree to and shall indemnify, defend, protect and hold the other party and its respective officers, directors, shareholders, employees, agents, representatives, parent companies, affiliated companies and subsidiary companies (each, as an “Indemnified Party”) free and harmless from and against all Claims (defined below) for damages (including but not limited to attorneys’ fees, costs and expenses), injury and death arising out of or relating directly or indirectly to the failure or alleged failure by the Indemnifying Party to comply with this Colocation Contract and the License granted hereunder and Customer’s use of the Space, excepting there from Claims arising out of or relating to the intentional misconduct or gross negligence of the Indemnified Party. For purposes of this Colocation Contract, the term “Claims” means any and all claims, causes of action (whether based on tort or contract law principles, law or equity, or otherwise), charges, assessments, fines, and penalties of any kind (including consultant and expert expenses, court costs, and reasonable attorneys’ fees and costs. This indemnification extends to and includes (a) Claims for injury to any persons (including death at any time resulting from that injury), and loss of, injury or damage to, or destruction of real or personal property (including all loss of use resulting from that loss, injury, damage, or destruction of the Space or Premises), but specifically excluding (b) Claims for economic and consequential loss or damage, and resulting, incidental or punitive damages of any kind. The provisions of this section shall survive the expiration or earlier termination of the Colocation Contract. An Indemnified Party seeking Indemnification shall give the Indemnifying Party prompt notice of any claim asserted or threatened against such Indemnified Party on the basis of which such Indemnified Party intends to seek indemnification, but the obligations of the Indemnifying Party shall not be conditioned upon receipt of such notice except to the extent that the Indemnifying Party is actually prejudiced by such failure to give notice). The Indemnifying Party shall promptly assume the defense of any Indemnified Party, with counsel reasonably satisfactory to such Indemnity, and the fees and expenses of such counsel shall be at the sole cost and expense of the indemnifying party. Notwithstanding the foregoing, any Indemnified Party shall be entitled, at its expense, to employ counsel separate from counsel for the Indemnifying Party and from any other party in such action, proceeding, or investigation. An Indemnified Party may not agree to a settlement of a Claim without the prior written approval of the Indemnifying Party, which approval shall not be unreasonably withheld. No Indemnifying Party may agree to a settlement of a Claim against an Indemnified Party unless such settlement includes a full release of the Indemnified Party.
10. DISCLAIMER OF WARRANTY. Upon execution and delivery of the Colocation Contract, Customer accepts the Space on an “as is where-is” basis. Except as otherwise specified in the Colocation Contract or this Schedule, VOLOGON makes no representations or warranties, express or implied, as to the condition of the Space, the Premises or the Building and specifically disclaims, any and all express or implied representations or warranties including without limitation, any warranties of merchantability or fitness for a particular purpose.
11. EVENT OF DEFAULT BY CUSTOMER. The occurrence of any one or more of the following shall constitute an “Event of Default” by Customer under the Colocation Contract: (a) on or after the thirtieth (30th) calendar day of each month during the Term hereof, Customer for any reason fails to pay to VOLOGON any Fees or any other amount due hereunder, or (b) on or after the 10th day after the date when due, Customer fails to pay to any other person or entity to whom Customer is required by the Colocation Contract to make payment any amount required by the Colocation Contract to be paid; or Customer fails to perform any obligation or covenant set forth in the Colocation Contract and the same is not cured within ten (10) business days following receipt of written notice thereof.
12. VOLOGON’S REMEDY UPON DEFAULT; TERMINATION. In addition to all rights and remedies granted to VOLOGON in the Colocation Contract (including, but not limited to, the right to charge and collect Late Charges), upon the occurrence of an Event of Default, VOLOGON shall have the right (a) to cease providing the Services to Customer without notice to Customer, (b) to remove the Equipment from the Space without written notice to Customer provided that VOLOGON returns the equipment to Customer as soon as shipment is provided by Customer/cost of shipment is paid by Customer, and (c) upon not less than three (3) business days written notice to Customer, to terminate the Colocation Contract, all at Customer’s cost and expense. In the event VOLOGON terminates the Colocation Contract, the same shall terminate, expire and (except as otherwise provided in the Colocation Contract) have no further force or effect on the date set forth in VOLOGON’s notice of termination. Upon such termination, Customer agrees to and shall immediately (i) pay to VOLOGON all Fees and other amounts due and owing for Services provided through and including the effective date of termination, (ii) if not already removed by VOLOGON, Customer shall remove its Equipment from and shall vacate the Space and the Premises, and (iii) Customer shall repair any damage caused to the Space, the Premises or the Building as a consequence of any removal. Customer’s obligations under this section shall survive the termination or expiration of the Colocation Contract. Termination Fee: This Agreement is subject to term commitments. In the event that this Agreement is terminated by Customer for any reason other than default by VOLOGON, prior to the end of the then-current term, Customer shall pay to VOLOGON an amount equal to the remainder of the fees due for the remainder of the term. (E.g. if Customer terminates Agreement two months into an annual term for any reason other than default by VOLOGON, Customer shall pay to VOLOGON a termination fee equal to the balance for the remaining 10 months of the term).
13. EVENT OF DEFAULT BY VOLOGON. The failure by VOLOGON to perform any obligation or covenant set forth in the Colocation Contract, if the same is not cured within ten (10) business days following receipt of written notice thereof, shall constitute an “Event of Default” by VOLOGON. Upon the occurrence of such Event of Default, Customer may terminate the Colocation Contract upon not less than three (3) business day’s written notice to VOLOGON.
14. ATTORNEYS’ FEES. If any legal or administrative action or proceeding is brought by either party against the other party to enforce or interpret any term or provision of this Colocation Contract, the prevailing party in said action or proceeding shall be entitled to recover from the party not prevailing its reasonable attorneys’ fees and costs incurred in connection with the prosecution or defense of such action or proceeding. The foregoing includes, without limitation, attorneys’ fees and costs of investigation incurred in appellate and remand proceedings, or costs incurred in establishing the right to indemnification.
15. ASSIGNMENT. The Colocation Contract shall not be assigned, transferred or conveyed by Customer without first obtaining the prior written consent of VOLOGON, which consent may be granted or withheld in VOLOGON’s sole and absolute discretion. Any purported assignment or delegation without the required consent shall be null and void and of no legal force or effect.
16. GOVERNING LAW. The Colocation Contract and all documents and instruments executed in connection therewith or herewith shall be governed by and interpreted in accordance with the substantive laws of the State of Colorado without regard to principles of conflict of laws. The parties each agree that sole and exclusive jurisdiction and venue for any action or litigation arising from or relating to this Agreement shall be an appropriate court located in Jefferson County, Colorado.
17. NO WAIVER. The failure of either party at any time to enforce any right or remedy available to it under the Colocation Contract or under any other document or instrument executed in connection herewith or therewith shall not be construed to be a waiver of such right or remedy with respect to any other breach or failure by either party.
18. LIMITATION OF LIABILITY.
(a) In addition to the specific limitations of liability set forth in other paragraphs herein or in the Rules and Regulations incorporated herein, VOLOGON shall not in any case be liable for any of the following: (1) the content of the information passing over its network; (2) unauthorized access or damage to, alteration, theft, destruction or loss of, Customer’s records, information, files or data; (3) economic consequential damages (including lost profits and savings) or incidental damages, even if VOLOGON is informed of their possibility; (4) claims for damages caused by Customer; (5) claims against Customer by any other party; or (6) 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.
(b) Notwithstanding the provisions of the Service Level Agreement (Exhibit “B”), VOLOGON SHALL NOT BE LIABLE FOR ANY FAILURE OR DELAY IN PERFORMANCE TO THE EXTENT CAUSED BY CAUSES BEYOND ITS REASONABLE CONTROL, INCLUDING, WITHOUT LIMITATION, LABOR DISPUTES, FIRES OR OTHER CASUALTIES, WEATHER OR NATURAL DISASTERS, DAMAGE TO FACILITIES, OR THE CONDUCT OF THIRD PARTIES (“FORCE MAJEURE”).
(c) Notwithstanding the provisions of the Service Level Agreement (Exhibit “B”), VOLOGON SHALL NOT BE HELD LIABLE FOR ANY DAMAGES, INCLUDING 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 QUALIFIED SERVICE OUTAGES OR ANY OTHER FAILURE OF CONNECTIVITY, EXCEPT THAT CUSTOMER’S SOLE REMEDY FOR QUALIFIED SERVICE OUTAGES SHALL BE THE REFUND PROVIDED PURSUANT TO THE SERVICE LEVEL AGREEMENT (EXIHIBIT “B”) VOLOGON SHALL NOT BE LIABLE FOR ANY OTHER TYPE OF DOWNTIME OR CONNECTIVITY FAILURE OR SERVICE INTERRUPTION.
(d) VOLOGON SHALL NOT BE LIABLE FOR ANY DAMAGES TO OR THEFT OF CUSTOMER’S EQUIPMENT OR PROPERTY LOCATED ON THE PROPERTY OF VOLOGON, FOR ANY REASON.
(e) IN NO CASE SHALL THE PARTIES BE LIABLE TO EACH OTHER FOR ANY CONSEQUENTIAL, INDIRECT OR SPECIAL DAMAGES WITH RESPECT TO ANY CLAIMS REGARDING THE SERVICES TO BE PROVIDED HEREUNDER, EVEN IF THEY HAVE BEEN NOTIFIED OF THE POSSIBILITY THEREOF.
(f) CUSTOMER AND ITS EMPLOYEES, AGENTS AND REPRESENTATIVES ASSUME ALL RISK, INCLUDING, WITHOUT LIMITATION, FALLS AND ELECTRIC SHOCKS, AND RELEASES VOLOGON AND ITS AGENTS, EMPLOYEES AND REPRESENTATIVES FROM ANY LIABILITY WHATSOEVER ARISING OUT OF ANY DAMAGE, LOSS OR INJURY TO PERSON AND/OR PROPERTY.
19. AMENDMENTS. The Terms and Conditions of this agreement may be updated from time to time in writing and/or published on VOLOGON’s website.
20. NOTICES. All notices and demands hereunder shall be in writing and shall be served by personal service by mail at the address of the receiving party set forth below (or at such different address as maybe designated by such party by written notice to the other party). All Notices and other communications hereunder shall be in writing and shall be deemed to have been duly given as of the date of confirmed delivery or confirmed facsimile transmission. To be effective, Notices must be delivered to the attention of:
TO: VOLOGON PRODUCTIONS, LLC.
25587 Conifer Rd.
Conifer, CO, 80433
ATTN: Legal Department
Telephone: (888) 236-1379
Customer Contact Name and Address Listed in the Colocation Contract
21. RIGHT TO ACCESS SPACE. VOLOGON retains the right to access the Space at any time and from time to time to perform maintenance and repairs, to inspect the Equipment and to perform the Services.
22. FORCE MAJEURE. The phrase “Force Majeure” means and refers to any of the following events: acts of war, acts of God; rebellion or sabotage or damage resulting there from; expropriation or confiscation of facilities by any governmental authority; compliance with any order of any governmental authority; acts of the government in its sovereign capacity which cause a delay, deferral or suspension in VOLOGON’s ability to provide the Services; subsidence; earthquakes; hurricanes; fires; floods; explosion; accidents; quarantine restrictions; freight or other embargoes; casualty loss; strikes; labor disputes; shortages of materials or transportation; electrical blackouts or brownouts; the failure of any utility provider to deliver electricity, water, or internet to the Premises; and the failure of Customer’s Equipment. Notwithstanding the above, Force Majeure shall not include (a) any event caused by the fault, negligence, failure to pay money or financial inability of the party claiming Force Majeure, and (b) any event within the reasonable control of the party claiming Force Majeure. A party’s obligation to pay money to another party will not be delayed, affected or changed by an event of Force Majeure.
23. RELATIONSHIP OF THE PARTIES. The parties agree that their relationship hereunder is in the nature of independent contractors. Neither party shall be deemed to be the agent, partner, joint venture nor employee of the other, and neither shall have any authority to make any agreements or representations on the other’s behalf. Each party shall be solely responsible for the payment of compensation, insurance and taxes of its own personnel and such personnel are not entitled to the provisions of any employee benefits from the other party. Neither party shall have any authority to make any agreements or representations on the other’s behalf without the other’s written consent. Additionally, VOLOGON shall not be responsible for any costs and expenses arising from Customer’s performance of its duties and obligations pursuant to this Agreement.
24. REPRESENTATIONS. Both parties represent and warrant to the other: (1) that it is a duly organized and existing legal entity under the laws of its domicile, if Customer is a corporation or partnership; (2) that it has full authority to enter this Agreement; (3) that the execution and/or performance of this Agreement does not and will not violate or interfere with any other agreement by which such warranting party is bound; and (4) that the warranting party will not enter into any agreement whose execution/performance would violate or interfere with this Agreement.
25. HEADINGS. The titles and headings of the various sections and paragraphs in this Agreement are intended solely for convenience of reference and are not intended for any other purpose whatsoever or to explain, modify, or place any construction on any of the provisions of this Agreement.
26. COUNTERPARTS. This Agreement may be executed in one or more counterparts, each of which shall be deemed an original, but which together shall constitute one and the same document.
27. LIMITATION OF ACTIONS. No action, regardless of form, arising out of or relating to this Agreement may be brought by the Customer more than twenty-four (24) months from the date on which the cause of action accrues. The parties expressly agree that this part, as to the Customer only, supplants and replaces any and all periods of limitation otherwise provided for by law and applicable hereto. All periods of limitation otherwise applicable to actions by VOLOGON remain as provided by law.
28. SEVERABILITY. If any portion of this Agreement is held to be invalid or unenforceable for any reason, the remaining provisions will continue in full force without being impaired or invalidated in any way. The parties agree that any such invalid provision shall be replaced with a valid provision which most closely approximates the intent and economic effect of the invalid provision.
29. CONFIDENTIALITY. Each party for itself, its agents, employees and representatives agrees that it will not divulge any confidential or proprietary information it receives from the other party, except as may be required by law. The terms and conditions of this Contract shall be considered confidential or proprietary information under this paragraph. Neither party shall use the other party’s name in marketing materials including, but not limited to press releases, without the prior written consent of the other party. The obligations of confidentiality and indemnification stated herein shall survive the termination of any applicable License or Contract.
30. ENTIRE AGREEMENT. The Colocation Contract, the Schedule of Equipment, Exhibit “A” and the Service Level Agreement, Exhibit “B”, attached hereto, constitute the entire understanding of the parties related to the subject matter hereof. The parties have read this Agreement and agree to be bound by its terms, and further agree that it, together with all Exhibits hereto (the terms of which are incorporated herein by this reference), constitutes the complete and entire agreement of the parties and supersedes all and merges all previous communications, oral or written, and all other communications between them relating to the subject matter hereof. No representations or statements of any kind made by either party that are not expressly stated herein shall be binding on such party. The parties agree that there are no third party beneficiaries to this Agreement.
SCHEDULE OF EQUIPMENT
A list of Equipment Customer plans to install and operate at the Premises shall be provided to VOLOGON by the Customer.
SERVICE LEVEL AGREEMENT
VOLOGON 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 Contract and Terms and Conditions:
VOLOGON’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, VOLOGON 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 1 Hour 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.
Network Uptime (only applicable when VOLOGON provides Internet Access)
VOLOGON guarantees that the network will be available 99% of the time in a given month excluding scheduled maintenance. VOLOGON will refund the customer one hour of the monthly Internet Access fee per additional 1 hour downtime (up to 100% of customer’s monthly Internet Access fee). Network uptime includes functioning of all network infrastructures including router, switches and cabling. Network downtime exists when a particular customer is unable to transmit and receive data and VOLOGON records such failure in the VOLOGON trouble ticket system.
VOLOGON’s cross-connects in the Premises are designed for 99% circuit availability. If VOLOGON’s cross connects degrade outside acceptable parameters (a “Degrade Interruption”), excluding scheduled maintenance, VOLOGON 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 1 hour 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 VOLOGON’s Network Operations Center toll free nubr /mber [(888) 236-1379] or email [email@example.com] 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 VOLOGON (at VOLOGON’s notice address in the Colocation Contract) 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” VOLOGON will commence to investigate the facts which led to the event, and upon receipt of Customer’s written notice describing the event VOLOGON and Customer shall make a joint examination of VOLOGON’s facility monitoring system records for the impacted cage, rack or cabinet in the Space. VOLOGON 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 Colocation Contract 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 VOLOGON (whether written or published on VOLOGON’s website) at http://www.vologon.com. By signing the Colocation Contract the customer agrees to be bound by VOLOGON PRODUCTIONS, LLC Terms and Conditions to Colocation Service Order. Installation charges are an estimate only. Final charges are subject to completion of installation. VOLOGON PRODUCTIONS, LLC cannot guarantee additional power for reconfiguration or upgrades of customer equipment, except as specified in the Colocation Contract.
Customer authorizes VOLOGON PRODUCTIONS, LLC to release customer’s name to other VOLOGON 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 VOLOGON. Customer shall coordinate with the carrier the delivery and provisioning of circuits to VOLOGON PRODUCTIONS, LLC facilities. VOLOGON PRODUCTIONS, LLC may be able to assist only if circuit number(s) are provided. Customer understands that VOLOGON PRODUCTIONS, LLC is not responsible for commitments made by carriers.