Co-location Terms and Conditions
 

The following additional terms and conditions are applicable where, pursuant to a Service Order Form, a Customer is contracting for the use of space under the control of Digicon whereby such space shall be utilized solely for the purpose of co-locating server(s) and related network equipment which are being used in conjunction with Digicon’s services or equipment used for connection to the Internet through the use of Digicon’s network located at 510 Spring Street, Herndon, Virginia 20170 (the "Space"). The Customer’s signature on this Co-location Schedule constitutes its acknowledgement that this Schedule is made part of the Agreement between Digicon and the Customer and the terms and conditions set forth herein are legally binding on the parties.

Definitions

1. Digicon Network - shall mean the telecommunications/data communications network and network components owned, operated and/or controlled by Digicon, including points of presence (POPs). The Digicon Network does not include any networks or network equipment not owned, operated or controlled by Digicon or any network components provided by third-party vendors/integrators.

2. Digicon Network Demarcation Point - shall mean the physical point at which the public network of Digicon ends and the private network of a customer begins. The Digicon Demarcation Point is the physical port connector to which customer cabling is connected.

3. Committed Information Rate (CIR) - shall mean a specified amount of guaranteed bandwidth (measured in bits per second)

4. Burst Rate - shall mean a computed bandwidth usage number based on data rate samples taken every five (5) minutes over a month, used to bill the customer for data usage in excess of the CIR. The Burst Rate is currently billed at the industry standard ninety-fifth (95%) percentile.

Terms

1. The Customer is granted the right to occupy a portion of the Space identified on a Service Order Form. The Customer shall be permitted reasonable access to the Space subject to any and all rules, regulations and access requirements imposed by Digicon governing such access. Digicon may request that the Customer submit a detailed description and schematic drawing of the equipment to be collocated in the Space.

2. The Customer shall be permitted to use the Space only for the specifically authorized placement and maintenance of server(s) and related network equipment. Digicon shall permit the Customer to place, maintain and operate in the Space any equipment that the Customer is authorized by Digicon and by Federal or state regulators and that, such equipment is being used by Customer to provide services which Customer has the legal and contractual authority to provide.

3. Digicon services are billed based on the use of any component of the Digicon Network, beginning at the Digicon Network Demarcation Point.

4. If the Customer desires to use the services of a third-party vendor rather than its own personnel for equipment installation, the Customer shall obtain Digicon’s prior written consent. Digicon reserves the right to refuse access to any third-party vendor in its sole discretion.

5. The Customer shall not use the Space for marketing purposes. The Customer shall place no signs or markings of any kind in the area surrounding the Space or on the grounds of the Point-of-Presence (POP) / Data Center site housing the Space. However, the Customer may affix a plaque or other identification (in a form approved by Digicon), as considered reasonably necessary, to identify the Customer’s equipment.

6. Each party will be responsible for maintenance and operation of all equipment/facilities on its side of the demarcation point. The Customer may, at its option, provide its own point-of-termination bay(s) in accordance with Digicon’s guidelines and specifications, which Digicon will provide upon written request.

7. The Customer is solely responsible for the design, engineering, testing, performance, monitoring, maintenance, and repair of the equipment and facilities used by the Customer in the Space. Without limitation of the foregoing provisions, the Customer will be responsible for servicing, supplying, repairing, installing, maintaining and removing the following on its side of the demarcation point: (i) cable(s); (ii) equipment; (iii) point-of-termination cross-connects; (iv) point-of-termination maintenance, including replacement fuses and circuit breaker restoration, if not performed by Digicon; and (v) connection cable(s) and associated equipment which may be required within the Space to the points of interconnection. The Customer will have secure access to the Space. The Customer will be allowed to use keys to secure cabinets leased upon request and for a nominal fee. Digicon will own the keys and hold copies of the keys for use in emergencies.

8. Digicon shall perform such janitorial services and other actions as are reasonably required to maintain the Data Center in which the Space is located in a condition that is suitable for the placement of servers and network equipment and internet access equipment. The Customer shall maintain the Space in an orderly and safe condition, and shall return the Space to Digicon at the conclusion of the term set forth in the Service Order Form in the same condition (reasonable wear and tear excepted) as when such Space was delivered to Customer. EXCEPT AS EXPRESSLY STATED HEREIN OR IN ANY SERVICE ORDER FORM, THE SPACE SHALL BE DELIVERED AND ACCEPTED "AS IS" BY THE CUSTOMER, AND NO REPRESENTATION HAS BEEN MADE BY DIGICON AS TO THE FITNESS OF THE SPACE FOR THE CUSTOMER'S INTENDED PURPOSE.

9. In the event the Customer fails to occupy said Space, within thirty (30) days, after the Space has been made available by Digicon, Digicon has the right to reclaim the proportion of Space not being used exclusively as indicated above. The Customer agrees to immediately vacate such recaptured Space and the Customer further agrees that no refunds shall be made regarding such recaptured Space.

10. For purposes of determining when the “term” of a Service Order Form begins, i.e., billing and for no other purposes, the term of use of the Space shall begin on the later to occur of (i) the date requested by the Customer (as recorded on the Service Order Form), or (ii) the date that Digicon completes the build-out of the Space. The Customer’s use of the Space beyond the initial term set forth in the Service Order Form shall continue on a month-to-month basis at the higher of the current Agreement rates or the then current rates published by Digicon, unless the Customer and Digicon have agreed in writing to a renewal of the right to use such Space. The Customer hereby agrees to pay for the Space and any related Services for the term of this Agreement. The rates and other charges set forth in each Service Order Form are established in reliance on the term commitment made therein. Billing for the Space shall commence according to the terms specified on the service order form. In the event that the Customer, at any time after the Effective Date, terminates the Agreement for Space or in the event that the Agreement is terminated due to a failure of the Customer to satisfy the requirements set forth herein or in the Service Order Form prior to the end of the agreed term, the Customer shall pay a termination charge equal to the costs incurred by Digicon in returning the Space to a condition suitable for use by other parties, plus an amount equal to sixty-five (65%) percent of the monthly recurring charges multiplied by the remaining number of months in the term as set forth in each Service Order Form.

11. The Customer shall abide by any posted or otherwise communicated rules relating to the use of, access to, or security measures concerning the Space. The Customer’s use of the Space will be immediately terminated in the event that the Customer or any of its agents or employees is found on Digicon's premises with any firearms, illegal drugs, or alcohol or is found engaging in any criminal activity, eavesdropping, and foreign intelligence, card selling, slamming or tampering with other customer equipment in any way. Persons found engaging in any such activity or in possession of the aforementioned prohibited items will be reported to the authorities and will be immediately escorted from the premises. In the event that unauthorized parties gain access to the Space through devices provided to the Customer, the Customer shall be responsible for any damages incurred as a result thereof. The Customer shall further be responsible for the cost of replacing any security devices lost or stolen after delivery thereof to the Customer.

12. Digicon shall have the right to terminate the Customer’s use of the Space and/or Services in the event that: (a) Digicon's rights to use the facility within which the Space is located terminates or expires for any reason; (b) the Customer has violated the terms hereof or of any Service Order Form submitted hereunder; (c) the Customer makes any material alterations to the Space without first obtaining the written consent of Digicon; (d) the Customer allows personnel or contractors to enter the Space who have not been approved by Digicon in advance; or (e) the Customer violates any posted or otherwise communicated rules relating to the use of or access to the Space. With respect to items (b), (c), (d) and (e) immediately above, unless the same interferes or has the potential to interfere with other Digicon co-location customers, Digicon may provide the Customer a written notice of the foregoing and a ten (10) day opportunity to cure the same before terminating the Customer’s rights to the Space.

13. Notwithstanding any other provisions of this Agreement, equipment and facilities placed in the Space shall not interfere with or impair service provided by Digicon or by any other customer located in the Data Center; shall not endanger or damage the facilities of Digicon or of any other customer, the Space, or the Data Center; shall not compromise the privacy of any communications carried in, from, or through the Data Center and related telecommunications systems; and shall not create an unreasonable risk of injury or death to any individual or to the public. If Digicon reasonably determines that any equipment or facilities of the Customer violate the provisions of this paragraph, Digicon will endeavor, but is not required to give written notice to the Customer, which notice shall direct the Customer to cure the violation within twenty-four (24) hours or, at a minimum, to commence curative measures within twenty-four (24) hours and to exercise reasonable diligence to complete such measures as soon as possible thereafter. If the Customer fails to take curative action within twenty-four (24) hours or if the violation is of a character which poses an immediate and substantial threat of damage to property, injury or death to any person, or interference/impairment of the services provided by Digicon, then and only in that event may Digicon take such action as it deems appropriate to correct the violation, including without limitation the interruption of electrical power to the Customer’s equipment. However, Digicon will endeavor, but is not required, to provide notice to the Customer prior to taking such action and shall have no liability to the Customer for any damages arising from such action, except to the extent that such action by Digicon constitutes willful misconduct.

14. Subject to requirements of the Service Order Form, the Customer may place or install in or on the Space such facilities and equipment, as it deems desirable for the conduct of business. Personal property, facilities and equipment placed by Customer in the Space shall not become a part of the Space, even if nailed, screwed or otherwise fastened to the Space, but shall retain their status as personal and may be removed by Customer at any time. In the event that the Customer’s employees, agents and/or representatives cause any damage to the Space, during the installation and/or removal of such property, the Customer shall promptly repair such damages at their exclusive cost and expense. In no case shall the Customer or any person acting on behalf of the Customer make any rearrangement, modification, improvement, addition, repair, or other alteration to the Space or the Digicon Data Center without the prior written consent of Digicon, which consent may be withheld in Digicon’s sole discretion. It is understood that the Customer shall pay the cost of any such specialized alterations.

15. The Customer represents that it has legal title to all property or equipment it installs or places in the Space. If Customer does not remove its property or equipment from the Space within thirty (30) days after the expiration or termination of the Agreement (as set forth in each Service Order Form), except in the case of nonpayment as outlined below, at the option of Digicon, it will be conclusively presumed that the Customer abandoned its property or equipment under this Agreement, and Digicon may sell or keep such property or equipment. In such event, Digicon will apply the fair market value of the equipment towards any indebtedness owed to Digicon, after deductions for all costs and expenses of disconnection of equipment and services, sale, storage and/or removal of equipment, including any and all reasonable attorney's fees. Further the Customer indemnifies and holds Digicon harmless for any and all liability for any loss or damage incurred. Otherwise, the Customer shall pay the agreed to monthly fees for continued use of the space as outlined in “Section 10” of this Agreement

16. Digicon reserves the right to change the location or configuration of the Space, provided, however, that Digicon shall not arbitrarily or discriminatorily require such changes. Digicon and the Customer shall work in good faith to minimize any disruption in the Customer’s services that may be caused by such changes in location or configuration of the Space.

17. The Customer shall, at its sole cost and expense, procure, maintain, and keep in force insurance with coverage limits not less than those set forth below:

     

    • Worker’s compensation insurance with statutory limits as required by the laws and regulations applicable to the employees and agents of the Customer or its contractors who are engaged in the performance of this Agreement;

    • Employer’s liability insurance, for bodily injuries and deaths, with limits of $500,000 per occurrence;

    • Commercial general liability insurance, covering claims for bodily injury, death and property damage, including comprehensive form, premises and operations, independent contractors, products and completed operations, personal injury, contractual, and broad form property damage liability coverage, with limits of $1,000,000 per occurrence and general aggregate of $3,000,000 or an equivalent limit provided by an “umbrella” insurance policy;

    • The Customer may elect to purchase business interruption and contingent business interruption insurance, having been advised that Digicon assumes no liability for loss of profit or revenues should an interruption of service occur, other than those outlined in the Service Level Agreement provided to the Customer.

     

    All such policies of insurance shall provide that the same shall not be canceled, nor the coverage modified, nor the limits changed without first giving thirty (30) days prior written notice to Digicon. No such cancellation, modification or change shall affect the Customer’s obligation to maintain the insurance coverage required by this Agreement. All liability insurance policies shall be written on an “occurrence” policy form and shall name the Customer and Digicon, it successors and/or assigns, as additional insured as their interest may appear. As requested by Digicon, any underlying property owner shall also be named as an additional insured. The Customer shall be responsible for the payment of any and all deductibles from insured claims under its policies. The Customer shall furnish to Digicon a certificate of insurance as evidence of compliance with the aforementioned requirements prior to taking possession of the Space.

18. If any mechanics lien or other liens shall be filed against the property of Digicon, or any improvement thereon by reason of or arising out of any labor or materials furnished or alleged to have been furnished or to be furnished to or for the Customer or by reason of any change or additions to Digicon property made at the request or under the direction of the Customer, the Customer shall, within thirty (30) days after receipt of written notice from Digicon, either pay such lien or cause the same to be bonded off Digicon’s property in the manner provided by law. The Customer shall also defend on behalf of Digicon, at the Customer’s sole cost and expense, any action, suit or proceeding which may be brought for the enforcement of such liens and the Customer shall pay any damage and discharge any judgment entered thereon.

19. If a Space is wholly or partially damaged by fire, windstorm, tornado, flood or by similar causes to such an extent as to be rendered wholly unsuitable for the Customer’s permitted use hereunder, then either party may elect within ten (10) days after such damage, to terminate the Service Order Form with respect to such Space, and if either party shall so elect, by giving the other written notice of termination, both parties shall stand released of and from further liability under the terms hereof. If the Space shall suffer only minor damage and shall not be rendered wholly unsuitable for the Customer’s permitted use, or is damaged and the option to terminate is not exercised by either party, Digicon covenants and agrees to proceed promptly without expense to the Customer, except for improvements not the property of Digicon, to repair the damage. Digicon shall have a reasonable time within which to rebuild or make any repairs, and such rebuilding and repairing shall be subject to delays caused by storms, shortages of labor and materials, government regulations, strikes, walkouts, and causes beyond the control of Digicon, which causes shall not be construed as limiting factors, but as exemplary only. Where allowed and where practical in the sole judgment of Digicon, the Customer may erect a temporary facility while Digicon rebuilds or makes repairs. In all cases where the Space shall be rebuilt or repaired, Customer shall be entitled to an equitable abatement of rent and other charges, depending upon the unsuitability of the Space for Customer’s permitted use, until such Space is fully repaired and restored and the Customer’s equipment installed therein (but in no event later than thirty (30) days after the Space is fully repaired and restored). If the whole of a Space shall be taken by any public authority under the power of eminent domain, then this Agreement shall terminate as of the day possession shall be taken by such public authority and rent and other charges for the Space shall be paid up to that day with proportionate refund by Digicon of such rent and charges as may have been paid in advance for a period subsequent to the date of the taking. If any part of the Space shall be taken under eminent domain, Digicon and the Customer shall each have the right to terminate the Service Order Form with respect to such Space and declare the same null and void, by written notice of such intention to the other party within ten (10) days after such taking. This “Section 19” shall supersede and take precedence over “Section 10” of this Agreement with respect to the Space only.

20. Customer’s failure to remove Customer Equipment after the expiration or termination of the Agreement, within fifteen (15) days of such expiration or termination shall constitute Customer’s express permission to Digicon to dispose of Customer Equipment. Customer agrees to pay any and all costs and expenses associated with the disconnection, removal, disposal, and/or storage of Customer Equipment, and indemnifies and holds Digicon harmless for any and all liability for any and all loss or damage incurred.

Revision: June 2008

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