This Colocation Terms and Conditions (this “Colocation ToC”) is made part of the Information Technology Master Services Agreement (“Agreement”) executed between Simple Helix and Customer.
Simple Helix provides colocation services (“Services”) providing Customer rack space and related services to support Customer-owned servers and related hardware installed at Simple Helix’s Facility. Simple Helix may also provide professional services related to implementation, installation, and customization of the Services. The parties have agreed that Simple Helix will provide the System to Customer, as well a
s any such professional services as the parties may agree, pursuant to the terms of the Agreement and any SOWs.
The following capitalized terms will have the following meanings whenever used in this Colocation ToC. Any capitalized terms not defined herein will have the same definition as in the Agreement.
1.1. “Commencement Date” means the date set forth in the SOW that the Equipment Space is available;
1.2 “Customer Persons” means your employees, agents, contractors or invitees to whom Simple Helix grants access to the Facility and Equipment Space in accordance with this Colocation ToC, and all Customers will be considered “Users” for the purposes of this Colocation ToC;
1.3 “Equipment” means your communications equipment, cabling, connections, associated hardware and accessories;
1.4 “Equipment Space” means the equipment space located in the Facility;
1.5 “Facility” means the Simple Helix colocation facility at the locations set out in the SOW;
1.6 “License Term” means the term of your license to install, operate and maintain your Equipment in the Equipment Space, as specified in the applicable SOW;
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 SOW, Simple Helix 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 Simple Helix real or personal property. Simple Helix reserves all rights not otherwise granted to Customer in the 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 the SOW, or (ii) the earlier termination of the 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 Simple Helix equipment or property in or about the Facility, without the prior written consent of Simple Helix.
3. USE OF THE FACILITY
3.1. Access and Entry: Subject to your full payment of all Fees and compliance with the terms of the Agreement, you will have
(a) 24×7 unrestricted access to the Equipment Space during the License Term if you have a Full Private Rack;
(b) 9×5 escorted access to the Equipment Space during the License Term for all Shared Colocation Space;
You will cause your employees, agents, contractors or invitees who have access to the Equipment Space to conform to all Simple Helix rules and regulations (as may be provided to you by Simple Helix from time to time). Failure to pay all Fees when due and payable may result in denial of access to the Equipment Space. Simple Helix will not be required to provide access to any person not approved by Simple Helix. Notwithstanding the above, Simple Helix 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 or provided to you by Simple Helix. Simple Helix may vary these rules and regulations from time to time in its sole discretion, and you will comply with all other reasonable requirements that Simple Helix may impose, or reasonably requests that Simple Helix 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 Simple Helix. You must provide Simple Helix 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 authorized to have access to the Facility at any time, unless otherwise agreed with Simple Helix. 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: Simple Helix will have the right to immediately terminate the right of access of any of your Customer Persons if Simple Helix determines in its sole discretion that termination of such access is in the best interest of Simple Helix or the Facility, provided that Simple Helix will not act in an arbitrary fashion in making such a determination. Simple Helix may in its sole discretion suspend the Services and access to the Equipment Space or the Facility until the time that Simple Helix 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 or employee of Simple Helix; provided, however, that during the period of suspension Simple Helix will provide escorted access for its then-standard fees.
3.5. Consent to Video Monitoring: You acknowledge, agree and hereby consent under applicable privacy laws that Simple Helix 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. 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 Simple Helix 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 Simple Helix. You will only install or place equipment in the Equipment Space. During the License Term, you will notify Simple Helix of any space, power or other requirements associated with the installation or operation of the Equipment. Simple Helix 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 Simple Helix provides you with additional services (including billable professional services), as agreed in an SOW, such services will be provided subject to and in accordance with the Agreement. Simple Helix accepts no risk with regards to Equipment in respect of which you request Simple Helix services.
4.3. Upgrades and Modifications: Without the prior written approval of Simple Helix, 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 Simple Helix, or that might affect the use of the Facility or equipment therein by Simple Helix 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, Simple Helix or any other user of the Facility or any equipment owned or used by Simple Helix 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 Simple Helix.
4.5. Immediate Threats: If, in the determination of Simple Helix, 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 Simple Helix or any other user of the Facility, or poses an immediate threat to the safety of any person, then Simple Helix 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, Simple Helix 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 Colocation ToC, and you fail to correct the violation within five (5) days after receipt of written notice of the violation from Simple Helix, then Simple Helix 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, Simple Helix will advise you in writing of the work performed or action taken. You will reimburse Simple Helix for all expenses reasonably incurred by Simple Helix associated with any work or action performed by Simple Helix in accordance with this section.
4.7. Relocation: You will, at Simple Helix expense, relocate the equipment to other equipment space within the Facility upon Simple Helix written request and within thirty (30) days of such request.
4.8. Periodic Inspections: Simple Helix 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. Simple Helix will give you reasonable advance notice of such inspections, except in those instances where Simple Helix 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 Simple Helix any liability of any kind nor relieve you of any obligation under this Colocation ToC.
4.9. Removal of Equipment: Upon termination or expiration of the License Term, unless prohibited by Simple Helix in accordance with the 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 five (5) days following the date of such termination or expiration, Simple Helix will have the right to remove, relocate, or otherwise store the Equipment at your expense without incurring any liability to you. If after thirty (30) days of such storage by Simple Helix you have not retrieved the Equipment, then Simple Helix may dispose of the Equipment as in a manner consistent with applicable law.
4.10. Power: (a) 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 Simple Helix or Customer. Power bars may not installed or be removed at any time unless agreed by the Parties and installed or removed by Simple Helix staff.
(b) Electrical Compliance: You will be responsible for the costs of any work or other actions which Simple Helix 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, Simple Helix will advise you in writing of the work performed or the action taken.
(c) 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, Simple Helix 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, Simple Helix will advise you in writing of the work performed or action taken, and you will immediately reimburse Simple Helix for all expenses reasonably incurred by Simple Helix associated with any work or action performed by Simple Helix in accordance with this section. 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 Simple Helix promptly upon request. Simple Helix 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.
You will maintain at your expense, throughout the License Term, Comprehensive General Liability Insurance protecting Simple Helix as an additional insured in an amount not less than One Million Dollars ($1,000,000.00) per occurrence for bodily injury or property damage. At Simple Helix request, you will provide Simple Helix with certificates of insurance or other satisfactory evidence that the insurance required in this section has been obtained. Simple Helix does not provide insurance coverage for any customer equipment in the Facility. You and Simple Helix 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 License Term or any renewal terms of this Colocation ToC, and in addition to any of your indemnity obligations under the Agreement, you agree to defend, indemnify and hold harmless Simple Helix, 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.