Colocation Terms and Conditions
ADDITIONAL SERVICE TERMS AND CONDITIONS:
These Additional Service Terms and Conditions govern your use of Colocation Services offered by Cogeco Peer 1, and form a part of and are subject to the terms of the Master Services Agreement.
1.1 In these Additional Terms and Conditions, the following terms have the following meaning:
(a) Commencement Date means the date that Cogeco Peer 1 notifies you that the Equipment Space is available;
(b) Customer Persons means your employees, agents, contractors or invitees to whom Cogeco Peer 1 grants access to the Facility and Equipment Space in accordance with this Agreement, and all Customers will be considered “Users” for the purposes of this Agreement;
(c) Equipment means your communications equipment, cabling, connections, associated hardware and accessions;
(d) Equipment Space means the equipment space located in the Facility;
(e) Facility means the Cogeco Peer 1 colocation facility at the locations set out in your Order;
(f) License Term means the term of your license to install, operate and maintain your Equipment in the Equipment Space, as specified in the applicable Order;
1.2 All other terms used in these Additional Terms and Conditions that are defined terms but are not defined above will have the meaning given to them in the Master Services Agreement.
2. LICENSE TO EQUIPMENT SPACE
2.1 License to Equipment Space: As of the Effective Date of the Agreement, or the date specified in the applicable Order, Cogeco Peer 1 grants Customer a non-exclusive license to install, operate, replace, remove and maintain its Equipment in the Equipment Space. The license granted is a license of space only, and does not create an ownership interest or property rights of any nature in Cogeco Peer 1’s real or personal property. Cogeco Peer 1 reserves all rights not otherwise granted to Customer in this Agreement.
2.2 Term of License: The License Term will commence on the Commencement Date, and continue until either: (i) expiration of the License Term specified on your Order, or (ii) the earlier termination of this Agreement in accordance with its terms.
2.3 Liens and Encumbrances: You will not create and will not permit any lien or encumbrance, including, without limitation, tax liens, mechanics’ liens, or other liens or encumbrances, on the Equipment, the Equipment Space, the Facility or any of Cogeco Peer 1’s equipment or property in or about the Facility, without the prior written consent of Cogeco Peer 1.
3. USE OF THE FACILITY
3.1 Access and Entry: Subject to your full payment of all Fees and compliance with the terms of this Agreement, you will have unrestricted access to the Equipment Space during the License Term. You will cause your employees, agents, contractors or invitees who have access to the Equipment Space to conform to all Cogeco Peer 1 rules and regulations (as amended by Cogeco Peer 1 from time to time). Failure to pay all Fees when due and payable may result in denial of access to the Equipment Space. Cogeco Peer 1 will not be required to provide access to any person not approved by Cogeco Peer 1. Notwithstanding the above, Cogeco Peer 1 will not be liable for the consequence of admitting or refusing to admit to the Facility or Equipment Space, any of your agents or employees or other persons claiming the right to admission.
3.2 Facility Rules and Regulations: You and your employees, agents, contractors or invitees who have access to any of the Facilities must obey all Facility Rules and Regulations, which shall be posted at each Facility. Cogeco Peer 1 may vary these rules and regulations from time to time in its sole discretion, and you will comply with all other reasonable requirements that Cogeco Peer 1 may impose, or reasonably requests that Cogeco Peer 1 Facility staff may make, from time to time.
3.3 Customer Persons: Any Customer Persons having access to the Facility must be approved in advance by Cogeco Peer 1. You must provide Cogeco Peer 1 with particulars, including a current photograph of each Customer Person before that Customer Person will be given access to the Facility. No more than three Customer Persons will be authorised to have access to the Facility at any time, unless otherwise agreed with Cogeco Peer 1. Your Customer Persons will be issued passes or visitor identification cards which must be presented upon request before entry into the Facility and surrendered upon demand or upon termination or expiration of the License Term.
3.4 Right to Terminate a Customer Person’s Access: Cogeco Peer 1 will have the right to immediately terminate the right of access of any of your Customer Persons if Cogeco Peer 1 determines in its sole discretion that termination of such access is in the best interest of Cogeco Peer 1 or the Facility, provided that Cogeco Peer 1 will not act in an arbitrary fashion in making such a determination. Cogeco Peer 1 may in its sole discretion suspend the Services and access to the Equipment Space or the Facility until the time that Cogeco Peer 1 determines that there is no longer any risk of threat to the security, safety, or integrity of the Equipment Space, the Facility, or any other customer of Cogeco Peer 1; provided, however, that during the period of suspension Cogeco Peer 1 will provide escorted access for its then-standard remote hands fees.
3.5 Consent to Video Monitoring: You acknowledge, agree and hereby consent under applicable privacy laws that Cogeco Peer 1 may monitor the Facility by way of closed circuit television or other monitoring device for the purposes of maintaining the safety and security of the Facility, any equipment in the Facility, and any persons using or present in the Facility from time to time.
3.6 Use of Cogeco Peer 1 Equipment: Cogeco Peer 1 may provide you with access to Cogeco Peer 1 equipment at the Facility, such as ladders, tools and hardware carts, provided such equipment is available for general use by customers at the Facility. Cogeco Peer 1 is not liable to you or to any other person for any loss or injury, including loss or damage to property, suffered as a result of your or your Customer Persons’ use of Cogeco Peer 1 equipment.
3.7 Facility Air Conditioners: You will not move, dislodge or otherwise interfere with or prevent the placement of any air conditioners, fans or other cooling devices which Cogeco Peer 1 has located throughout the Facility.
4. USE OF THE EQUIPMENT SPACE
4.1 Installation and Requirements: You will be responsible for the delivery and installation of the Equipment and the connection of the Equipment to telecommunications lines and power. You may not connect or disconnect to any electrical circuits outside of the Equipment Space without the prior approval of Cogeco Peer 1. You are permitted to install or remove equipment (where authorized) in the Facility during business days between 8:00 a.m. and 8:00 p.m. local time (OR with prior written approval of Cogeco Peer 1). You will only install or place equipment in the Equipment Space. During the License Term, you will notify Cogeco Peer 1 of any space, power or other requirements associated with the installation or operation of the Equipment. Cogeco Peer 1 will have no duty to monitor, maintain or care for the Equipment. You must install your Equipment according to the hot and cold aisle setup of the Facility.
4.2 Additional Services: Where Cogeco Peer 1 provides you with additional services (including billable remote hands or other professional services), as agreed in an Order, such services will be provided subject to and in accordance with this Agreement. Cogeco Peer 1 accepts no risk with regards to Equipment in respect of which you request Cogeco Peer 1 services.
4.3 Upgrades and Modifications: Without the prior written approval of Cogeco Peer 1, you will not (i) undertake any upgrade or modification within or about the Facility, (ii) undertake any activity that would in anyway result in an increased cost to Cogeco Peer 1, or that might affect the use of the Facility or equipment therein by Cogeco Peer 1 or any other user of the Facility, or (iii) use your Equipment to allow third parties colocated in the Facility to interconnect with each other at the Facility.
4.4 Maintenance and Use of Equipment Space: You will, at your own cost and expense, protect, maintain and keep in good order the Equipment Space and any equipment in the Equipment Space. You will ensure that neither you nor your employees, agents, contractors or invitees damage any part of the Equipment Space, Facility or any property located in or about the Facility, or interfere, or allow the equipment to constitute a hazard to or to interfere with, Cogeco Peer 1 or any other user of the Facility or any equipment owned or used by Cogeco Peer 1 or any other user of the Facility. You will not allow any debris or supplies to be left in or about the Equipment Space or Facility, and you will ensure that the access door and all aisles adjacent to the Equipment Space, as well as all adjacent fire pull stations are at all times unblocked by Equipment both inside and outside of the Equipment Space, and readily accessible by any authorized persons, including Customer Persons or Cogeco Peer 1.
4.5 Immediate Threats: If, in the determination of Cogeco Peer 1, acting reasonably, the Equipment poses an immediate threat to the physical integrity of the Facility or the physical integrity or performance of the equipment of Cogeco Peer 1 or any other user of the Facility, or poses an immediate threat to the safety of any person, then Cogeco Peer 1 may perform such work and take such other actions that it may consider necessary without prior notice to you and without liability for damage to the Equipment or for any interruption of your (or your clients’) businesses. As soon as practicable after performing such work, Cogeco Peer 1 will advise you in writing of the work performed or the action taken.
4.6 Intervention: If any part of the Equipment is not placed and maintained in accordance with this Agreement, and you fail to correct the violation within 7 days after receipt of written notice of the violation from Cogeco Peer 1, then Cogeco Peer 1 may, at its option, without further notice to you, correct the deficiency at your expense without liability for damages to the Equipment or interruption of your (or your clients’) businesses. As soon as practicable thereafter, Cogeco Peer 1 will advise you in writing of the work performed or action taken. You will reimburse Cogeco Peer 1 for all expenses reasonably incurred by Cogeco Peer 1 associated with any work or action performed by Cogeco Peer 1 in accordance with this section.
4.7 Relocation: You will, at Cogeco Peer 1’s expense, relocate the equipment to other equipment space within the Facility upon Cogeco Peer 1’s written request and within 30 days of such request.
4.8 Periodic Inspections: Cogeco Peer 1 reserves the right to make periodic inspections of the Equipment Space and any Equipment that is located within or physically attached to the Facility. You will have the right to have one or more of your employees or representatives present during the time of any such inspection. Cogeco Peer 1 will give you reasonable advance notice of such inspections, except in those instances where Cogeco Peer 1 determines that safety considerations justify the need for such an inspection without the delay of providing notice. The making of periodic inspections or the failure to do so will not impose upon Cogeco Peer 1 any liability of any kind nor relieve you of any obligation under this Agreement.
4.9 Removal of Equipment: Upon termination or expiration of the License Term, unless prohibited by Cogeco Peer 1 in accordance with this Agreement, you will remove the Equipment from the Premises. Unless the parties otherwise agree in writing, in the event the Equipment has not been removed within 5 days following the date of such termination or expiration, Cogeco Peer 1 will have the right to remove, relocate, or otherwise store the Equipment at your expense without incurring any liability to you. If after 30 days of such storage by Cogeco Peer 1 you have not retrieved the Equipment, then Cogeco Peer 1 may dispose of the Equipment as in a manner consistent with applicable law.
(a) Power Consumption: Local governing bodies such as the N.E.C., C.S.A. and I.E.C. require that all electrical circuits must be de-rated to 80% of the rate electrical circuit and may be used at any given time. For installations in the Equipment Space, that are configured in an A/B power configuration, you may use a maximum of 40% of the total power installed.
(b) Power Bars and Circuits: You will not modify, upgrade, open or otherwise interfere with power bars, circuits or any other power infrastructure, whether such power infrastructure is provided by Cogeco Peer 1 or Customer. All power infrastructure installed within the Equipment Space must be UL or ULC listed. Power bars may not installed or be removed at any time unless agreed by the Parties and installed or removed by Cogeco Peer 1 staff. Unless otherwise specified in your Order, you must supply power to your Equipment using the NEMA, IEC or regional equivalent connector specified in your Order.
(c) Electrical Compliance: You will be responsible for the costs of any work or other actions which Cogeco Peer 1 may consider necessary without prior notice to you and without liability for damage to the Equipment, or for any interruption of your (or your clients’) businesses, in order to rectify any unauthorized use of any power infrastructure by you. As soon as practicable after performing such work, Cogeco Peer 1 will advise you in writing of the work performed or the action taken.
(d) Power Use: You will not install any Equipment that exceeds 80% of the capacity of any electrical circuit or associated hardware at the Facility. In the event that you do exceed 80% capacity of any electrical circuit or associated hardware at the Facility, Cogeco Peer 1 may, at its option, and without notice to you if necessary, remedy the overload at your expense without liability for damages to the Equipment or interruption of your (or your clients’) businesses. As soon as practicable thereafter, Cogeco Peer 1 will advise you in writing of the work performed or action taken, and you will immediately reimburse Cogeco Peer 1 for all expenses reasonably incurred by Cogeco Peer 1 associated with any work or action performed by Cogeco Peer 1 in accordance with this section. Power deployed in an A/B configuration must not exceed 40% of each circuit. In the event power to one circuit is interrupted for any reason, the single, remaining, active circuit must not exceed 80%.
5. USE OF EQUIPMENT
5.1 Ownership: You represent and warrant that you either own all Equipment or have all necessary rights to use, maintain, and locate the Equipment in the Facility. If the Equipment is leased, then you will provide all documentation regarding such lease to Cogeco Peer 1 promptly upon request. Cogeco Peer 1 disclaims any liability to any third party who has an ownership, security interest or other similar right in or to the Equipment.
5.2 Interference: You will be responsible for resolving any technical interference problems between your Equipment and other equipment located at the Facility and, if there are other wireless telecommunications facilities located at the Facility, you will reasonably cooperate with such other users of the Facility to resolve any issues of interference in an equitable fashion. Your Equipment must not disturb the communications configurations, equipment, and frequency that exist at the Facility as of the Commencement Date and your Equipment must comply with all non-interference rules of the applicable governmental agency or authority, including the Federal Communications Commission, the Canadian Radio-television Telecommunications Commission, or Ofcom.
You will maintain at your expense, throughout the License Term Comprehensive General Liability Insurance protecting Cogeco Peer 1 as an additional insured in an amount not less than one million dollars (US $1,000,000.00) (or the reasonable equivalent in local currency) per occurrence for bodily injury or property damage. At Cogeco Peer 1’s request, you will provide Cogeco Peer 1 with certificates of insurance or other satisfactory evidence that the insurance required in this section has been obtained. Cogeco Peer 1 does not provide insurance coverage for any customer equipment in the Facility. You and Cogeco Peer 1 each hereby waive all rights of recovery against the other, the other’s agents, employees, contractors, and representatives on account of loss and damage occasioned to such waiving party to the extent that that loss or damage, is actually covered (and paid) by insurance carried by either party.
During and after the Initial Term or any renewal terms of this Agreement, and in addition to any of your indemnity obligations under the Master Services Agreement, you agree to defend, indemnify and hold harmless Cogeco Peer 1, its parent company, and their affiliates, subsidiaries, personnel and representatives, jointly and severally, from and against any and all claims, damages, losses, liability, causes of action, judgments, costs or expenses (including reasonable legal fees) directly or indirectly arising from, connected with or relating to any use of the Equipment Space or the Facility by your Users, including any Customer Persons or your customers.