General. This Collocation Service Agreement (hereinafter called this “Agreement”) is entered into as of the date set forth below Air Link Communications Limited (hereinafter called ALC’s Signature) to be referred to as the “Effective date” by and between Air Link Communications (hereinafter referred to as ALC), a limited liability company duly incorporated under the Companies Ordinance Chapter 31:01 of the Laws of Trinidad and Tobago and continued under the Companies Act Chapter 81:01 having its registered address located at #12 Contention Street Princes Town, in the Republic of Trinidad and Tobago and the Customer (hereinafter called “Customer”),_________________listed below and on Addendum A (“Customer Information Form”) and on Addendum A (“Service Request Form”) attached hereto and made a part hereof. Addendum A shall be the initial Service Request Form. ALC and Customer may enter into subsequent Service Request Forms, which may modify some or all of the services provided on prior Service Request Forms. The fees and costs associated with the services provided on a Service Request Form are subject to change from time to time by ALC and Customer agrees to pay for any new services at the rate(s) in effect at the time the Service Request Form is submitted.
2. Service Fees and Billing. Customer agrees to pay for the Installation Services and Monthly Services indicated on the Service Request Form (collectively, “Service Fees”).
2.1. Monthly Service Fees. Customer shall begin paying for Monthly Services on the date that is the earlier of: (a) the Requested Service Date specified in the Service Request Form; and (b) the date that Customer places Customer Equipment in ALC’s premises. If, however, Customer is unable to use the Services commencing on the Installation Date solely as a result of delays caused by ALC, then the Installation Date specified in the Service Request Form shall be extended one day for each day of delay caused by ALC.
2.2. Payment. Customer shall pay for all fees and charges in advance between day 1 and 15 of each and every month of this Agreement (the “Due Date”) with all amounts being paid without demand through a wire transfer or any other method agreed between parties. Late undisputed payments will accrue interest at a rate of two percent (2 %) per month, or the highest rate allowed by applicable law, whichever is lower.
2.3. Taxes. All payments required by this Agreement are exclusive of applicable taxes and Customer shall be solely responsible for the same.
3.1. Identification of Space. Customer shall be entitled to the use of cabinets or cages (hereafter “Space”) in the ALC Data Center (“Center”) located at 19-21 Sahai Trace, St Croix Road, Princes Town under the terms and conditions of this Agreement. Such Space is identified in the Service Request Form.
3.2. Installation. ALC grants the Customer the right to operate Customer Equipment described in the Service Request Form. Except as expressly stated herein, the Space is provided on an “AS-IS” basis and Customer may use the Space only for the purposes of maintaining and operating Customer Equipment. Customer will install Customer
Equipment in the Space only after obtaining authorization from ALC to access ALC premises.
3.3. Equipment Delivery. Customer authorizes ALC and ALC agrees, to accept delivery of and/or provide storage (based upon availability) for Customer’s equipment at the facility set forth on the applicable Contract; provided, however, that Customer agrees to abide by ALC’s Equipment Delivery Storage Procedures, a copy of which shall be made available for Customer’s review at the Center, and save for ALC’s Negligence, Fraud and /or willful Misconduct, Customer releases ALC from any and all liability for any direct, indirect, incidental, economic, special, punitive or consequential damages arising from ALC’s acceptance and/or storage of Customer’s equipment, as long as such damages are proved to be the result of a force majeure event and/or out of ALC employees, representatives or third parties related- company employees control. ALC will keep in full force and effect during the term of this Agreement, sufficient insurance coverage to cover its liabilities and obligations under this Agreement (including liability insurance for damages and lost on Customer Equipment).
3.4. Access. ALC will provide Customer with 24 hour per day, 7 day per week access to the Space for authorized personnel contained on the Customer Information Form. Customer may add or remove personnel from the authorized list by providing written notice of any such change to ALC prior to any entry by such additional personnel to the Center. Without written authorization from Customer, only those individuals listed on the Customer Information Form will be granted access to the Center. ALC may suspend the right of any authorized personnel or other persons to visit the ALC premises and/or the Center based on good cause.
3.5. Relocation of equipment. ALC shall be entitled, upon reasonable written notice to Customer, to change the Space allocated for Customer’s Equipment, or to change the location of the Center to a different location. ALC shall bear all costs of such changes and relocation, including re-cabling, third party cancellation charges and moving. In the event of such relocation, the parties shall work together in good faith to minimize any disruptions of Customer’s operations and use of the Services as arising from the change or relocation; such good faith efforts shall include negotiation of a plan and schedule for relocating the Center. ALC shall keep Customer informed of the timing of any planned relocation. All relocated facilities, space, connections, conduits, and/or cables shall be provided in accordance with the terms and conditions set forth in this Agreement. Agreement. In the event of a reallocation and after corresponding notification to the Customer, the right to analyze and reject such reallocation will be provided to Customer considering that, if such reallocation is deemed mandatory and inevitable by ALC, Customer will be entitled to terminate this Agreement and the services affected at no cost and/or penalty. In such case, ALC will be operatively and financially responsible for the removal and delivery of the Customer’s equipment at a facility to be informed by Customer.
3.6. Removal of Customer Equipment. Customer will provide ALC with written notification two (2) days before Customer wishes to remove any Customer Equipment or make changes to the Service Request Form. Before authorizing the removal of any Customer Equipment, ALC’s accounting department will verify that Customer has no undisputed payments past due to ALC. Once ALC authorizes removal of Customer Equipment, Customer will remove such Customer Equipment, and will be solely responsible to bring appropriate packaging and moving materials. Customer is responsible for any damages caused by the removal of Customer’s equipment.
4. Security. ALC is bound to take as much care of Customer’s Equipment as a Company of Ordinary Prudence would, under similar circumstances, take care of its own, but in no case any less then reasonable care. As part of such care, ALC will have to offer all standard security measures expected for a Company delivering Datacenter/Collocation services, including, but not limited to, perimmetal security, personnel 24/7 and Access method policies and systems. ALC requires that Customer and each of its employees comply with all Data Center Security Procedures, as modified from time to time, in order to maximize the security of the Network and ALC premises. ALC’s current Data Center Security Procedures are located in the ALC Rules and Regulations within Addendum C.
5. Other Networks; Approval and Usage. Customer understands that ALC does not own or control other networks outside of its Network, and ALC is not responsible or liable for performance (or non-performance) of those networks or the interconnection points between the Service and other networks that are operated by third parties.
6. Insurance. Customer will keep in full force and effect during the term of this Agreement, sufficient insurance coverage to cover its liabilities and obligations under this Agreement (including property and liability insurance for Customer Equipment) as required under applicable law. Customer also expressly agrees that it will be solely responsible for ensuring that its agents (including contractors and subcontractors) maintain additional insurance at levels no less than those required by applicable law and customary in Customer’s and its agents’ industries.
7. Term. This Agreement shall commence on the Effective Date and shall terminate on the date terminate on the date of termination of the last Service active and provided by ALC to Customer and included into this Agreement through the corresponding Service Request Form. The term of each particular Service will be included in the corresponding Service Request Form and once the Initial term has been completed, service will be renewed automatically on a month-to-month basis. Any termination will have to be processed with a 30-day notice from Customer to ALC. In case a Service termination is requested by Customer to ALC prior to the completion of the initial term and such termination is not included in any of the situations detailed in section 11, Customer will have to pay to ALC 50% of the
monthly fees, for all months until reaching the completion of the initial term.
8. Representations and Warranties
Each party warrants to the other as follows:
(i) The execution, delivery and performance of this Agreement have been duly authorized by all necessary corporate action on its part;
(ii) This Agreement constitutes a legal, valid and binding obligation of the party;
(iii) Neither the execution of this Agreement by the party, nor the delivery thereof by the party, will conflict with, or constitute a default under or violate any of the terms, conditions or provisions of any material document, agreement or other instrument to which the party is a party or by which the party is bound;
(iv) Neither the execution of this Agreement by the party, nor the delivery thereof by the party, will conflict with, or constitute a default under or violate any of the terms, conditions or provisions of any judgment, writ, injunction, decree, order or ruling of any court or governmental authority binding on the party;
(v) Each Party has obtained and, in respect of this Agreement, shall have obtained prior to the entering of this Agreement into force all applicable clearances, licenses, consents and approvals required for the due execution of their obligations under this Agreement.
ALC further represents that it now has and will use its best efforts to keep in force throughout the Term all necessary approvals, permits, licenses and authority from all local, national, and international governmental authorities, and required pursuant to any international treaty obligations (collectively, the “Permits”) necessary to perform the services contemplated under this Agreement.
9. Limitations of Liability.
9.1. Personal Injury. Each Customer Representative and any other persons visiting ALC facilities does so at his or her own risk and ALC shall not be liable for any harm to such persons resulting from any cause other than ALC’s negligence or willful misconduct resulting in personal injury to such persons during such a visit.
9.2. Damage to Customer Equipment. ALC assumes no liability for any damage to, or loss of, any Customer Equipment resulting from any cause other than ALC’s negligence or willful misconduct. To the Extent ALC is liable for any damage to, or loss of, the Customer Equipment for any reason, such liability will be limited solely to the then current value of the Customer Equipment and further subject to the limitations set forth in this Section 9.2 and in Section 9.3 below. In No Event will either party be liable to the other for any claims arising out of or related to this Agreement for any loss revenue, loss profits, incidental, punitive, indirect or consequential damages, loss of data, or interruption, even if advised of the possibility of such damages, whether under theory of contract, tort (including negligence), strict liability or otherwise.
9.3. Maximum Liability. Notwithstanding anything to the contrary in this Agreement, both Customer and ALC’s maximum aggregate liability to relate to or in connection with this Agreement will be limited to the total amount paid by Customer to ALC hereunder for the Twelve (12) month period prior to the event or events giving rise to such liability.
10. Confidential Information. Each party acknowledges that it will have access to certain confidential information of the other party concerning the other party’s business, plans, customers, technology, and products, including the terms and conditions of this Agreement (“Confidential Information”). Confidential Information will include, but not be limited to, each party’s proprietary software and customer information. Each party agrees that it will not use in any way, for its own account or the account of any third party, except as expressly permitted by this Agreement, nor disclose to any third party (except as required by law or to that party’s attorneys, accountants and other advisors as reasonably necessary), any of the other party’s Confidential Information and will take reasonable precautions to protect the confidentiality of such information. Information will not be deemed Confidential Information hereunder if such information: (i) is known to the receiving party prior to receipt from the disclosing party directly or indirectly from a source other than one having an obligation of confidentiality to the disclosing party; (ii) becomes known (independently of disclosure by the disclosing party) to the receiving party directly or indirectly from a source other than one having an obligation of confidentiality to the disclosing party; (iii) becomes publicly known or otherwise ceases to be secret or confidential, except through a breach of this Agreement by the receiving party; (iv) is independently developed by the receiving party; or (v) is required to be released by law or regulation, provided that the receiving party provide prompt written notice to the disclosing party of such impending release, and the releasing party cooperate fully with the disclosing party to minimize such release. Without limiting the foregoing, the receiving party agrees that it will not transfer any Confidential Information, export controlled item, data, or services, to foreign persons employed by or associated with, or under contract to the receiving party, without the authority of an export license or applicable license exemption. The receiving party shall obtain the written consent of the disclosing party prior to submitting any request for authority to export any such Confidential Information, export controlled item, data or services.
11.1. For Nonpayment. Thirty (30) days after notice of nonpayment from the Due Date of any undisputed amounts owed to ALC by Customer, ALC may disable Service. To renew Service, ALC will require a reconnection fee. After sixty (60 days of nonpayment from the Due Date. ALC may terminate the Service permanently. Termination does not terminate Customer’s obligations under this Agreement,
including the obligation to pay all undisputed fees for Service during the Term.
11.2. Unacceptable Use; Bankruptcy. ALC may terminate this Agreement upon written notice to Customer for violation of the Acceptable Use Guidelines or Anti-Spam Policy. ALC may also terminate this Agreement if Customer becomes the subject of a voluntary petition in bankruptcy or any voluntary proceeding relating to insolvency, receivership, liquidation, or composition for the benefit of creditors or becomes the subject of an involuntary petition in bankruptcy or any involuntary proceeding relating to insolvency, receivership, liquidation, or composition for the benefit of creditors, if such petition or proceeding is not dismissed within sixty (60) days of filing.
11.3. For Cause. ALC may terminate this Agreement if the Customer materially breaches any term or condition of this Agreement and fails to cure such breach within thirty (30) days after receipt of written notice of the same, except in the case of failure to pay undisputed fees which failure is subject to Section 12.12 below. Customer may terminate this Agreement if ALC materially breaches any term or condition of this Agreement and fails to cure such breach within thirty (30) days after receipt of written notice of the same. Under these circumstances, termination, either being prior or after completion of the initial term, shall imply no penalty to Customer.
11.4. Liability Following Termination. The expiration or termination of this Agreement will not (i) extinguish claims or liability (including, without limitation, for payments due) arising prior to such expiration or termination, or (ii) extinguish claims or liabilities arising after such expiration or termination if such claims or liabilities specifically survive any expiration or termination as set forth herein.
11.5. Effect of Termination. Upon the effective date of expiration or termination of this Agreement: (a) ALC will immediately cease providing the Services; (b) any undisputed payment obligations of Customer under this Agreement will become due immediately, including but not limited to Monthly Services through the end of the term indicated on the Service Request Form and as defined on section 7 of this Agreement for early terminations.
12. Miscellaneous Provisions.
12.1. Force Majeure. Except for the obligation to pay money, neither party will be liable for any failure or delay in its performance under this Agreement due to any cause beyond its reasonable control, including act of war, acts of God, earthquake, flood, embargo, riot, sabotage, labor shortage or dispute, governmental act or failure of the Internet, provided that the delayed party: (a) gives the other party prompt notice of such cause, and (b) uses its reasonable commercial efforts to correct promptly such failure or delay in performance.
12.2. No Lease. This Agreement is a services agreement and is not intended to and will not constitute a lease of any real or personal property. In particular, Customer acknowledges and agrees that Customer has not been granted any real property interest in the Space, CENTER or other ALC premises, and Customer has no rights as a tenant or otherwise under any real property or landlord/tenant laws, regulations, or ordinances.
12.3. Parking. Customer acknowledges that parking will be provided on a non-exclusive use basis, and subject to availability, as determined by ALC from time to time. Customer agrees not to use those parking spaces identified for guest of the Center.
12.4. Marketing. Subject to Customer’s written consent, ALC may refer to Customer by trade name and trademark, and may briefly describe Customer’s Business in ALC’s marketing materials and web site. Subject again to the foregoing consent Customer hereby grants ALC a limited license to use any Customer trade names and trademarks solely in connection with the rights granted to ALC pursuant to this Section 12.4. All goodwill associated with Customer’s trade name and trademarks will inure solely to Customer. Customer may display the ALC logo, or any other ALC trademark or service mark or logo, on Customer’s web sites or marketing literature only after obtaining ALC’s written approval on a case-by-case basis, and provided that Customer abides by the ALC trademark guidelines and such other guidelines as ALC may provide Customer. All goodwill associated with ALC’s trade name, trademarks, slogans and logos will inure solely to ALC.
12.5. Credit Review. ALC, at its sole discretion, determination and expense, may take the necessary and required action to conduct a credit check on Customer with any one or more of the major credit reporting agencies. Customer shall reasonably cooperate with ALC to obtain credit information.
12.6. Assignment. ALC reserves the right and Customer grants the right for ALC to assign the rights and responsibilities of this Agreement to a third party provided that the third party has a net worth equal to or greater than ALC’s at the time of assignment. Customer may not assign its rights or delegate its duties under this Agreement either in whole or in part without the prior written consent of ALC in each instance. Notwithstanding the foregoing, Customer upon notice to ALC, may assign all of its rights and delegate all of its duties under these terms and conditions and any applicable Contract to (a) a subsidiary, affiliate or parent company; (b) any entity that Customer controls, is controlled by, or is under common control with; or (c) any entity which succeeds to all or substantially all of the party’s assets, whether by merger, sale or otherwise. Any attempted assignment or delegation without such consent will be void. This Agreement will bind and inure to the benefit of each party’s successors and permitted assigns.
12.7. Notices. Any notice or communication required or permitted to be given hereunder may be delivered personally, deposited with an overnight courier, sent by confirmed Email, or mailed by registered or certified mail, return receipt requested, postage prepaid, in each case to the address of the receiving party first indicated below, or at such other address as either party may provide to the other by written notice. Such notice will be deemed to have been given as of the date it is delivered, or five (5) days after mailed or sent, whichever is earlier.
12.8. Relationship of Parties. ALC and Customer are independent contractors and this Agreement will not establish any relationship of partnership, joint venture, employment, franchise or agency between ALC and Customer. Neither ALC nor Customer will have the power to bind the other or incur obligations on the other’s behalf without the other’s prior written consent, except as otherwise expressly provided herein.
12.9. Choice of Law and Attorney’s Fees. This Agreement will be governed by and construed pursuant to the laws of the Republic of Trinidad and Tobago. Any dispute arising out and/or in connection with this Agreement which cannot be settled in an amicable way shall be submitted to the exclusive jurisdiction of the competent High Courts of The Republic of Trinidad and Tobago
12.10. Waiver. The waiver by either party of any term, condition, or provision contained in this Agreement will not be deemed to be a waiver of any subsequent breach of the same or any other term, condition, or provision contained in this Agreement, nor will any custom or practice that may grow up between the parties in the administration of the terms of this Agreement be construed to waive or lessen the right of either party to insist upon the performance by either party in strict accordance with the terms of this Agreement.
12.11. Dispute Resolution.
13. Entire Agreement. This Agreement, together with Addendum A & B and Service Request Form and ALC policies referred to in this Agreement represents the complete agreement and understanding of the parties with respect to the subject matter herein, and supersedes any other agreement or understanding, written or oral.