Colocation Services Schedule 01.01.2014 - 06.30.2019

Version 2019 (01.01.2014-06.30.2019)
 

This Schedule, together with any Order referencing this Schedule or pursuant to which the services described herein are provided (and any appendices attached thereto, if applicable), contains the service terms and service level agreement that apply to the colocation services (the “Colocation Services,” which shall be a “Service” under the Terms) provided by CareServ Technologies, LLC (“CareServ”) to Customer. Such terms are in addition to, and not in lieu of the Terms of Service in effect between CareServ and Customer (the “Terms”). Capitalized terms used but not otherwise defined herein shall have the same meanings given for such terms in the Terms.

Services Provided
  1. By its execution of an Order for the Colocation Services, CareServ hereby grants Customer, during the term of such Order, a limited, personal and terminable license to place Customer Equipment in certain designated Space within a designated CareServ premises (each a “Facility”) in which the Colocation Services will be provided. “Space” means the specific location within the Facility, including, without limitation, racks, cabinets, cages and square meters/square footage, as identified on the Order. By executing an applicable Order, Customer accepts the Space exclusively on an “AS-IS”, “WHERE IS” basis. Customer may only use the Space to install, maintain, monitor, operate, replace, repair and remove certain of its Customer Equipment as approved by CareServ. All Customer Equipment must be acceptable, at the sole discretion of CareServ, for installation in the Space at the Facility and if Appendix A is attached to the Order, compliant with the Equipment Criteria set forth in Appendix A to the applicable Order. The parties acknowledge that (i) Space is not offered by CareServ on a “common carrier” or “general availability” basis; (ii) the availability of Space is contingent upon the existence or execution of a written services agreement between CareServ and Customer; (iii) Space is provided by CareServ at is sole discretion upon acceptance of Customer’s Order for such Space.
  2. Customer acknowledges that it has been granted only a license to occupy the Space and that it has no real property or other interest therein. Customer shall not utilize the Facility for any unlawful purposes, and shall not assign, mortgage, sublease, sublicense, encumber or otherwise transfer any Space or the license granted herein. Any attempt by Customer to encumber the Space or permit the use or occupancy by anyone other than Customer shall be void unless approved in writing by CareServ in advance.
  3. Customer shall utilize the Space and the Customer Equipment only for its corporate business purposes in conjunction with the Services provided by CareServ under the Agreement. Except as otherwise agreed to by CareServ in writing, the Space or any Customer Equipment with any third party services is prohibited. Any party seeking to install any such equipment or establish any connection without the express written authorization of CareServ and without accompaniment of an CareServ representative shall be denied entry to the Space.
  4. Only after receiving written approval from CareServ (which may be withheld or conditioned in CareServ’s sole and absolute discretion), and only when accompanied by a representative of CareServ, may Customer place equipment of unaffiliated third parties in the Space (“Third Party Equipment”). Customer Equipment and Third Party Equipment shall be at the sole risk and liability of Customer, it being expressly agreed that CareServ shall have no liability whatsoever for Customer Equipment or Third Party Equipment placed in the Space by Customer. Any access of Customer, or any such third parties, to the Space or Facility shall be at CareServ’s sole discretion and shall be arranged for in advance. Any such third parties shall be considered the invitees of Customer for the purposes of the indemnity provisions in this Agreement. Prior to placing any Third Party Equipment in the Space, Customer shall obtain the third party supplier’s consent to the terms of Section 1(e) of this Schedule, and Customer shall be responsible for all acts or omissions of such third party.
  5. Customer shall remove its Customer Equipment and all Third Party Equipment from the Space on or before the effective date of termination or expiration of the applicable license. If Customer fails to remove its Customer Equipment or any Third Party Equipment upon termination, upon written notice from CareServ, Customer shall have five (5) days in which to remove its Customer Equipment and all Third Party Equipment. If not removed by the end of the five (5) day period, CareServ may remove and retain the Customer Equipment and all Third Party Equipment for a twenty (20) day period, following written notice to the Customer requesting instructions. If instructions are not received by the end of that twenty (20) day period, CareServ may deem the Customer Equipment and all Third Party Equipment to have been abandoned by Customer, and CareServ may, without further notice, remove and sell or abandon the Customer Equipment and all Third Party Equipment without incurring liability to Customer. Customer shall pay CareServ’s expenses related to the retention, removal, abandonment or sale of the Customer Equipment and all Third Party Equipment. Any amounts remaining from the sale of the Customer Equipment after deduction for CareServ’s said expenses shall be applied to any amounts owed by Customer to CareServ under this Agreement. Under no circumstance will CareServ be liable for any loss or damage caused to any Customer Equipment or Third Party Equipment resulting from such removal and storage.
  6. Customer’s sole and exclusive remedy for CareServ’s delay in tendering possession of the Space shall be an abatement of that portion of the monthly recurring charge (MRC) applicable to the Space until possession of the Space is delivered to the Customer.
  7. In addition to any other fees due under an applicable Order, Customer shall pay CareServ all one-time or non-recurring fees set forth in each Order.
  8. In addition to any provisions regarding taxes in the Terms, Customer shall be responsible for payment of all taxes related to the ownership or operation of its Customer Equipment.
  9. In connection with the Colocation Services, CareServ may provide also provide Customer with certain other services, such as, but not limited to, Internet transit services, equipment purchasing or leasing services or managed services. If the Customer purchases such other services from CareServ, such services shall be provided under one or more separate Schedules.
Access, Installation and Maintenance
  1. (a) Except as otherwise agreed to by the parties under a separate Schedule for managed services, CareServ shall be responsible only for maintenance of the Facility and the Space. Customer shall not make any alterations, changes, additions or improvements to either the Facility or the Space without CareServ’s prior written consent which may be withheld for any reason. To the extent any improvements are made in the colocation space, as between the parties, title to all improvements shall remain exclusively vested in CareServ. Except as may be otherwise agreed to by the parties under a separate Schedule for managed services, Customer shall maintain and repair all Customer Equipment and Third Party equipment placed in the Space at Customer’s sole expense and shall be responsible for all costs associated with the configuration, installation, interconnection and operation of the Customer Equipment and Third Party Equipment, including without limitation, transportation related costs and any electrical or other work which must be completed in order to interconnect the Customer Equipment or Third Party Equipment.
  2. (b) In general, access for Customer to Facilities is limited to entrance to the Facility, plus passageways leading to the Space, plus the Space itself, with accompaniment by a CareServ representative. Access to Space in Facilities staffed by CareServ or its supplier is available during normal business hours (8:30 a.m. to 5:30 p.m., Eastern). Customer requests for access to Space at (i) Facilities outside normal business hours or (ii) unmanned Facilities is subject to an escort fee as determined by CareServ on a case-by-case basis and must be made at least twenty-four (24) hours in advance of the requested access time. Customer shall at all times comply with all safety, security and access rules of CareServ and, if applicable, CareServ’s landlord or licensor applicable at each Facility. CareServ may remove any personnel of Customer not in compliance with its rules and regulations and may prohibit access by any person at its discretion.
  3. (c) CareServ shall have access to the Space at all times and shall have the unfettered right to review any installation or maintenance work carried out by Customer or its third party agent(s). If CareServ is of the reasonable opinion that installation or maintenance work carried out by Customer or its agent(s) will jeopardize the integrity of the Facility, any equipment therein, or of the Network, CareServ shall give notice to the Customer and shall be entitled (at Customer’s expense) to remedy such installation or maintenance.
  4. (d) Except as may be otherwise agreed to by the parties under a separate Schedule for managed services, Customer’s responsibilities with respect to access, installation and maintenance of the Customer Equipment and Third Party Equipment include, but are not limited to, the following:

    1. Customer shall arrange for the transit and delivery of all Customer Equipment to the Space at its sole cost and expense;

    2. Customer shall provide CareServ with reasonable prior notice (not less than twenty four (24) hours) of the actual delivery date of the Customer Equipment, to the extent that CareServ is not managing the delivery of the Customer Equipment;

    3. Customer shall not cause harm to the Space or the Facility of CareServ or any other property of the CareServ or any third party;

    4. Customer shall not interfere in any way with CareServ’s use of the Facility or with the use or operation of any third party facilities;

    5. Customer shall not physically conflict or electrically interfere with the facilities or equipment of the CareServ or any third parties;

    6. Customer shall fully comply with all telecommunication industry standards, NEC and OSHA requirements, and in accordance with CareServ’ requirements and specifications, to the extent that CareServ does not accept responsibility for such compliance. In addition, power draw on circuits may not exceed 80% of circuit size;

    7. All Customer Equipment and Third Party Equipment must be mounted on racks, and using appropriate brackets, except where otherwise expressly permitted in writing by CareServ. All Equipment and Third Party Equipment must be clearly labeled with the Customer’s name and any applicable Third Party’s name. Customer is solely responsible for assuring that Customer Equipment and Third Party Equipment is mounted in an efficient, safe and appropriate manner;

    8. All cabling regardless of location, shall be tied and organized, run to the side of the rack, and labeled. All connectors must be secured in the interface socket;

    9. Any cross connects shall only be installed by CareServ pursuant to an appropriate executed Order. Cross connects shall be used for all interconnections within the facility, except for connections between Customer’s cabinets that are adjacent; and

    10. Using the Space and Facilities for lawful purposes only and complying with any and all of CareServ’s standard policies with respect to the maintenance, upkeep, use and responsibilities related to Customer Equipment and Third Party Equipment at the Facilities, as made available and amendment from time to time by CareServ, including without limitation the AUP. Breach of the terms of this subsection (x) may, in CareServ’s sole discretion, result in an immediate suspension or termination of the license and Colocation Services provided by CareServ hereunder.

Relocation of Customer Equipment
  1. CareServ shall be entitled, upon reasonable written notice to Customer (except in the case of damage to the Facility by fire or other casualty, in which case CareServ shall give Customer prompt notice thereof), to change the Space allocated for Customer’s Equipment in any Facility, or to change the location of a Facility to a different location. CareServ and Customer shall share the reasonable cost of such changes and relocation, including internal recabling and moving, provided that (i) CareServ’s maximum liability under this Section 3(a) shall be limited to the total of all MRCs in respect of the affected Facility paid by the Customer for the last monthly billing cycle preceding the move, and (ii) nothing in this section shall impose any liability on CareServ for any costs incurred by Customer in relation to any Customer-arranged local access circuits, including but not limited to, the costs of terminating, moving or re-ordering any such local access circuits.
  2. In addition to the foregoing, if CareServ’s rights to occupy the Space or Facilities cease due to termination or expiration of the underlying lease or license that CareServ has with its landlord or third party with authority over the Space or Facilities, CareServ may terminate this license upon notice to Customer, and Customer shall not be subject to any early termination fees associated with such termination
  3. The rights granted under this Schedule may be subject to the approval by the landlord or any third party with authority over the Space or Facilities. If the landlord or such other third party deems this Schedule or any of the rights granted herein to be a violation of terms to which CareServ or any of its suppliers are bound, including any amendments or subsequent lease agreements for Facility, or applicable law, then upon the request of CareServ, Customer shall either enter into an agreement approved by such landlord or third party, or immediately remove Customer’s and any Third Party Equipment from the Space or Facility (as the case may be).
Approvals; No Liens
  1. Customer shall submit to CareServ, in writing, all building construction and electrical requirements and architectural and engineering drawings indicating the proposed installation for approval. Customer may not perform any construction or install any Customer Equipment or Third Party Equipment without written approval from CareServ. CareServ reserves the right to accept or reject Customer's design at its sole discretion. All costs of design work shall be the Customer’s sole responsibility.
  2. CareServ shall inspect the completed installation and must approve the same in writing before Customer is allowed to utilize the Customer Equipment and Third Party Equipment for any purpose. Any installations that do not comply with the approved drawings will be subject to rejection by CareServ. CareServ also reserves the right to require reasonable modifications to any installations.
  3. Customer is solely responsible for obtaining any and all necessary building permits or other authorizations required for colocation of the Customer Equipment and any Third Party Equipment.
  4. Customer will not permit any mechanic's, material men's or other liens to be filed against all or any part of the Space or Facilities, by reason of or in connection with any repairs, alterations, improvements or other work contracted for or undertaken by Customer. Customer, upon request, will provide CareServ with enforceable, conditional and final lien releases (or other reasonable evidence demonstrating the non-existence or satisfaction of liens) from its contractors or other parties performing work. CareServ may at all reasonable times post on the Space and record any notices of non-responsibility which it deems necessary for protection against such liens. If any liens are filed, Customer, at its expense and, within thirty (30) days after the filing thereof, will cause such lien to be released of record or bonded so that it no longer affects title to the Space or Facilities. If Customer fails to timely cause such lien to be so released or bonded, CareServ may, without waiving its rights and remedies based on such breach, and without releasing Customer from any of its obligations, cause such lien to be released or bonded. Customer will reimburse CareServ, within ten (10) business days after receipt of invoice from CareServ, any sum paid by CareServ to obtain such bond or release.
  5. The provisions of this Section 4 shall not apply with respect to any installation, maintenance or other similar work performed by CareServ pursuant to a separate schedule for managed services.
Indemnification
In addition to any indemnification obligations under the Terms, Customer shall be liable for and shall defend and indemnify CareServ (and its landlords and licensors) harmless from and against any claims, demands, actions, damages, liability, judgments, losses, expenses and costs (including reasonable attorney fees) arising directly or indirectly from (i) Customer’s use of the Space; (ii) the acts or omissions of Customer, its employees, agents or invitees, or (iii) the installation, operation, maintenance, use, malfunction or repair of Customer Equipment or Third Party Equipment located in the Space or Facility, except to the extent such services are provided by CareServ pursuant to a separate schedule for managed services. Customer agrees that, except to the extent caused by CareServ’s gross negligence or willful misconduct, CareServ shall have no liability to Customer in respect of its personnel or Customer Equipment or Third Party Equipment while located at a Facility. For the absence of confusion, the terms of this Section 5 shall survive the termination of the Agreement or this Schedule and the related licenses set forth herein.
Disclaimer:
Limitations of Liability. IN ADDITION TO THE LIMITATIONS OF LIABILITY AND DISCLAIMERS OF WARRANTY SET FORTH IN THE TERMS: (A) CARESERV DOES NOT WARRANT THAT THE SPACE OR THE FACILITY WILL BE FREE FROM ANY DEFECTS OR DISRUPTIONS AND SUCH ARE PROVIDED “AS-IS”, AND ALL OTHER IMPLIED WARRANTIES ARE HEREBY DISCLAIMED, INCLUDING BUT NOT LIMITED TO, WARRANTIES FOR MERCHANTABILITY, HABITABILITY, MARKETABILITY, PROFITABILITY, FITNESS FOR A PARTICULAR PURPOSE, SUITABILITY, TITLE, NONINFRINGEMENT, OR ARISING FROM A COURSE OF DEALING OR TRADE PRACTICE; (B) CARESERV’S SOLE LIABILITY FOR ANY DAMAGES OR CLAIMS IN CONNECTION WITH CUSTOMER'S USE OF THE SPACE, FACILITY, OR COLOCATION SERVICES UNDER THIS SCHEDULE WILL BE LIMITED TO LOSS OF TANGIBLE PROPERTY OR PERSONAL INJURY (INCLUDING DEATH) CAUSED BY CARESERV’S GROSS NEGLIGENCE OR WILLFUL MISCONDUCT. EXCEPT AS SET FORTH ABOVE, CARESERV WILL NOT BE LIABLE FOR ANY DIRECT OR INDIRECT DAMAGES OR CLAIMS RESULTING FROM CUSTOMER'S USE OF THE SPACE, FACILITY OR COLOCATION SERVICES PROVIDED UNDER THIS SCHEDULE.
Insurance
  1. During the term of any license granted to Customer to occupy Space and in addition to any other applicable insurance requirements under this Agreement, Customer shall obtain and maintain and keep in full force and effect, at their respective expense, the following forms of insurance with the minimum limits stated below (or the equivalent local currency coverage in the jurisdiction in which Space is located): (i) workers compensation, statutory minimums; (ii) employers liability, $1,000,000 per occurrence (BI/disease); (iii) property and casualty insurance, on an all-risks form, for the replacement cost value of the Customer Equipment and Third Party Equipment and for the Space (such insurance shall also provide business interruption coverage and shall contain a mutual waiver of subrogation in favor of each party); and (iv) commercial general liability on an occurrence basis, $1,000,000 per occurrence and $2,000,000 aggregate (or equivalent coverage under an “umbrella” policy”; such insurance shall include premises operations, products and completed operations, contractual liability, and personal and advertising injury coverages, naming each other as additional insureds).
  2. Customer agrees to have included in each of the insurance policies required under Section 7(a) a waiver of the insurer’s rights of subrogation against CareServ and shall name CareServ as an additional insured on each such policy. Each insurance policy shall be maintained with an insurer having a current rating of at least an A+ or better by A.M. Best and shall provide for at least thirty (30) days prior written notice to CareServ in the event of cancellation of any policy. If requested by CareServ, Customer shall furnish to CareServ acceptable Certificates of Insurance demonstrating compliance with these requirements. Any breach of this Section by Customer shall be deemed a material breach of this Schedule entitling CareServ to terminate the applicable license immediately.