EXHIBIT 10.58
ALCHEMY COMMUNICATIONS, INC.
GIGABIT DATA CENTER SERVICES AGREEMENT
THIS AGREEMENT made this 1st day of July, 1999, (the "Effective Date") by
and between., ALCHEMY COMMUNICATIONS, INC. a California corporation (hereinafter
called "Alchemy") and XXXXXXX.XXX, INC. a Nevada corporation (hereinafter called
"Customer").
1. GENERAL TERMS
A. This document, along with the Gigabit Data Center Service Order
("GDCSO") agreement, shall comprise a complete and binding agreement between
Customer and Alchemy. Each GDCSO agreement, and any amendments thereto, when
dated and subscribed by Customer and Alchemy, shall incorporate the terms and
conditions of this Agreement. In the event of any conflict or inconsistency
between this Agreement and the terms set forth in a GDCSO agreement, the terms
of the GDCSO agreement shall in all cases prevail.
B. In connection with the Space made available hereunder, Alchemy shall
perform services which support the overall operation of the Gigabit Data Center
("GDC"), e.g., janitorial services, environmental systems maintenance, and power
plant maintenance, at no additional charge to Customer. However, Customer shall
be required to maintain the Collocation Space in an orderly manner and shall be
responsible for the removal of trash, packing, cartons, etc. from the Space.
Further, Customer shall maintain the Space in a safe condition, including but
not limited to the preclusion of storing combustible materials in the Space.
C. Any option granted to Customer to renew its license to occupy the Space
shall be contingent on the election by Alchemy to continue to own or lease the
Premises in which the Space is located for the duration of the Renewal
Period(s), such election to be exercised at the sole discretion of Alchemy.
2. GDC SERVICES
A. Collocation Space: Alchemy shall provide Customer with shared or
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dedicated Rack Space as indicated in the GDCSO.
B. Connectivity: Alchemy shall provide Customer with connectivity to the
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Internet through Alchemy's network as specified in the GDCSO. Alchemy shall
provide cross-connectivity, where applicable, for an additional fee.
C. Technical Support: Alchemy shall provide Customer with complete
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technical support upon Customer's request and in accordance with Alchemy's terms
and conditions and listed rates.
D. Eyes Hands Support: Alchemy shall provide Customer with assistance to
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observe conditions in their Collocation Space and offer light hands assistance
such as shutting off and turning on equipment as directed by Customer.
3. TERM OF AGREEMENT
A. Customer's license to occupy the Collocation Space shall begin on the
"Requested Service Date," as set forth in the GDCSO agreement or on the date
Alchemy completes the build-out of the Space, whichever is later. The minimum
term of the Customer's license to occupy the Space shall be one year, but may be
longer as indicated on the GDCSO.
B. Should Alchemy fail, for any reason to tender possession of the Space
to Customer on or before the Requested Service Date (specified in the GDCSO
agreement relevant thereto) this Agreement shall not be void or voidable. If
Alchemy fails to tender possession of the Space to Customer within a sixty (60)
day period after such Requested Service Date (due to any reason other than the
acts or omissions of Customer), Customer may, upon written notice to Alchemy,
declare the relevant GDCSO agreement null and void with no further obligation
attributed to Customer, and Alchemy shall refund all fees and charges paid in
advance by Customer, except in the case where the delay was caused by Customer,
in which case, Alchemy shall retain any funds necessary to recover the cost or
obligations incurred on behalf of Customer. Except as provided herein, Alchemy
shall not be liable to Customer in any way as a result of a delay or failure to
tender possession.
C. Following the expiration of the Term for each Space or failure of the
Parties to enter into any Renewal Periods, Customer's license to occupy the
Space and receive services shall continue in effect on a month-to-month basis
upon the same terms and conditions specified herein, unless terminated by either
Customer or Alchemy upon thirty (30) days prior written notice.
4. TERMINATION
A. Either party shall have the right to terminate this agreement should the
other party breach a material term or condition of this Agreement and fail to
cure such breach within thirty (30) days after receipt of written notice of the
breach, except in the case of failure to make timely payment to Alchemy, which
must be cured within ten (10) days of the payment due date. Alchemy has the
option, at its sole discretion, to terminate this Agreement should Customer
become insolvent or the subject of bankruptcy proceedings, a receivership,
liquidation or a sale for the benefit of creditors
B. Upon termination or expiration of the Term for each Space, Customer
agrees to do the following: (i) remove the Equipment and other property that has
been installed by Customer or Customer's agent(s) and return the Space to
Alchemy in substantially the same condition as it was on the date of
installation; (ii) pay any outstanding fees within five (5) days of termination
of service; (iii) return any confidential information it has received from
Alchemy and (iii) return any equipment or supplies that are the property of
Alchemy. In the event such Equipment or property has not been removed within
thirty (30) days of the effective termination or expiration date, the Equipment
shall be deemed abandoned and Customer shall lose all rights and title thereto.
C. In the event the GDC becomes the subject of a taking by eminent domain
by any authority having such power, Alchemy shall have the right to terminate
this Agreement. Alchemy shall attempt to give Customer reasonable advance notice
of the removal schedule. Customer shall have no claim against Alchemy for any
relocation expenses, any part of any award that may be made for such taking or
the value of any unexpired term or renewed periods that result from a
termination by Alchemy under this provision, or any loss of business from full
or partial interruption or interference due to any termination. However, nothing
contained in this Agreement shall prohibit Customer from seeking any relief or
remedy against the condemning authority in the event of an eminent domain
proceeding or condemnation that affects the Space.
5. DEFAULT
A. If Customer fails to perform its obligations, or fails to pay for services
rendered hereunder, Alchemy may, at its sole option and with written notice,
issue a default notice letter to Customer, demanding the default condition be
cured. If the default condition is not remedied within the time period specified
in the notice letter, Alchemy may then, without the necessity of any further
notice, discontinue performance and terminate this Agreement, for default, and
pursue any other remedies available at law or in equity, including reimbursement
of the cost of collection and reasonable attorney fees. Alchemy's failure to
exercise any of its rights hereunder shall not constitute or be construed by
Customer as being a waiver of any past, present, or future right or remedy. In
the case of Customer's failure to make timely payments, Alchemy may discontinue
any or all services for any period of time as it deems appropriate without
written notice to Customer, and such action shall not be deemed a breach of this
Agreement by Alchemy.
B. At any time during the term of this Agreement, Alchemy may, at it's sole
option, immediately terminate this Agreement if Customer is not then maintaining
the Equipment solely for the purpose of originating and/or terminating
telecommunications transmissions carried over the Alchemy Network or as
otherwise set forth in this Agreement, or pursuant to the terms and conditions,
if any, contained in any Collocation Schedule identified herewith.
C. If Customer commits an act of default under any Collocation Schedule to
which this Agreement pertains, Alchemy may, in its sole discretion, declare
Customer to be in default of any and all other Collocation Schedules then in
effect, without the necessity of showing separate failures, acts or omissions by
Customer.
D. If Customer commits an act of default with respect to the purchase of
telecommunications services which would entitle Alchemy under its separate
tariffs and agreements to terminate its services to Customer, then Alchemy and
all Alchemy's Affiliates shall be entitled to terminate this Agreement and all
GDC services to which this Agreement pertains.
E. Alchemy may, without notice, suspend or terminate services to customer if
Customer is found to be engaged in unlawful activities or upon the request to do
so by any legal or governmental agencies.
6. PRICES AND PAYMENT TERMS
A. Customer shall pay ALCHEMY monthly recurring fees (the
"Recurring Fees"), which shall include charges for use and occupancy of the
Space (the "Occupancy Fees"), connectivity (or cross-connect fees, if
applicable), power charges and, where applicable, technical support and system
administration. In addition to any Recurring Fees, Customer shall be charged
non-recurring fees for build-out of the Space (the "Build-Out Charges"), where
applicable, Escort charges, and other services, which shall be set forth in the
GDCSO agreement. If Customer requests that Alchemy provide services not
delineated herein or in the GDCSO agreement at any time during the Term,
Customer agrees to pay the fee for such services in effect at the time such
service was rendered. All payments will be made in U.S. dollars. Late payments
hereunder will accrue interest at a rate of one and one-half percent (1 %) per
month, or the highest rate allowed by applicable law, whichever is lower. If in
its judgment Alchemy determines that Customer is not creditworthy or is
otherwise not financially secure, Alchemy may, upon written notice to Customer,
modify the payment terms to require assurances to secure Customer's payment
obligations hereunder.
B. All payments required by this Agreement are exclusive of all national,
state, municipal or other governmental excise, sales, value-added, use, personal
property, and occupational taxes, excises, withholding taxes and obligations and
other levies now in force or enacted in the future, all of which Customer will
be responsible for and will pay in full. Customer agrees to pay or reimburse
Alchemy for any applicable taxes that are levied based on the transactions
hereunder, exclusive of taxes on income and real estate taxes on the GDC. Any
such charges shall be invoiced and payable within the payment terms of this
Agreement. Alchemy agrees to provide Customer with reasonable documentation to
support invoiced amounts applied to taxes within thirty (30) calendar days of
receipt of a Customer's written request.
C. The Occupancy Fee and/or Power Charges shall be increased to reflect any
increases incurred by and required under the lease relevant to the Premises in
which the Space is located. Customer shall pay to Alchemy its pro rata share of
any such increases based on the number of square feet of the Space compared to
the number of square feet leased by Alchemy under the applicable lease. Alchemy
shall notify Customer of any such increase as soon as practicable.
D. Payments shall be due upon Customer's receipt of each monthly invoice.
Late payment charges will be calculated based on 1.5% per month of the unpaid
amount.
E. Charges delineated in the Collocation Schedule for build-out of the
Space shall be invoiced and paid by Customer when invoiced. Alchemy may require
payment of up to fifty percent (50%) of the "Build Out Fees" prior to commencing
construction.
F. Customer agrees to reimburse Alchemy for all reasonable repair or
restoration costs associated with damage or destruction caused by Customer's
personnel, Customer's agent(s) or Customer's suppliers/contractors or Customer's
visitors during the Term or as a consequence of Customer's removal of the
Equipment or property installed in the Space.
7. ADDITIONAL TERMS GOVERNING USE OF COLLOCATION SPACE AND INSTALLATION
OF EQUIPMENT
A. Before beginning any delivery, installation, replacement or removal
work, Customer must obtain Alchemy 's written approval of Customer's choice of
suppliers and contractors which approval shall not be unreasonably withheld or
delayed. Alchemy may request additional information before granting approval
and may require scheduling changes and substitution of suppliers and contractors
as conditions of its approval. Approval by Alchemy is not an endorsement of
Customer's supplier or contractor, and Customer will remain solely responsible
for the selection of the supplier or contractor and all payments to Alchemy for
construction work performed on their behalf.
B. Customer shall not make any construction changes or material alterations
to the interior or exterior portions of the Space, including any cabling or
power supplies for the Equipment, without obtaining Alchemy's written approval
for Customer to have the work performed. Alchemy reserves the right to perform
and manage any construction or material alterations within the GDC and
Collocation Space areas at rates to be negotiated between the Parties hereto.
C. Customer's use of the Space, installation of Equipment and access to the
GDC shall at all times be subject to Customer's adherence to the generally
accepted industry standards, security rules and rules of conduct established by
Alchemy for the GDC. Except where advanced written permission has been given by
Alchemy, Customer's access to the GDC shall be limited to the individuals
identified and authorized by Customer to have such access. Customer agrees not
to erect any signs or devices to the exterior portion of the Space without
submitting the request to Alchemy and obtaining Alchemy's written approval.
D. Customer may not provide, or make available to any third party, space
within the Collocation Space without Alchemy's prior written consent. If
Customer should provide, or make available to any third party, space within the
Collocation Space without obtaining the written consent of Alchemy, Customer
shall be in breach of this Agreement and Alchemy may pursue any legal or
equitable remedy, including but not limited to the immediate termination of this
Agreement.
E. Alchemy shall not arbitrarily or discriminatorily require Customer to
relocate the Equipment; however, upon sixty (60) days prior written notice or,
in the event of an emergency, such time as may be reasonable, Alchemy reserves
the right to change the location of the Space or the GDC to a site which shall
afford comparable environmental conditions for the Equipment and comparable
accessibility to the Equipment. Alchemy and Customer will work together in good
faith to minimize any disruption of Customer's services as a result of such
relocation. Alchemy shall be responsible for the cost of improving the Space to
which the Equipment may be relocated, and for relocation of Equipment
interconnected to Alchemy services, except that Alchemy shall not be responsible
for relocating facilities installed in violation of this Agreement.
F. All equipment brought into or taken out of the GDC facility must be cleared
through Alchemy's equipment control system.
8. INSURANCE
A. Customer agrees to maintain, at Customer's expense, during the entire
period of occupancy, for each Collocation Space (i) Comprehensive General
Liability Insurance for bodily injury or property damage, in an amount not less
than one million dollars per occurrence; (ii) Workers' Compensation Insurance,
with a limit not less than five hundred thousand dollars Bodily Injury each
accident (iii) "All Risk" Property insurance covering all of Client's personal
property located at the GDC, (iv) commercial automobile liability insurance
(bodily injury and property damage) in an amount not less than one million
dollars per accident for all vehicles including owned, non-owned, leased and
hired vehicles; (v) Errors and Omissions insurance. All property insurance
covering customer's property located in the GDC premises shall expressly waive
any right of subrogation on the part of the insurer against Alchemy, its
officers, directors employees, agents and contractors. Customer further agrees
to name Alchemy and the party from whom Alchemy leases its GDC space, as
"Additional Insured" on the appropriate policies.
B. All policies subject to this provision shall be issued by a reputable
insurance company authorized to do business in the state of California. Prior
to installation of equipment in Customer's collocation space, customer shall
furnish Alchemy with certificates of insurance which evidence the minimum levels
of insurance set forth herein. Customer shall not materially alter or cancel
insurance relating to GDC occupancy without notification to Alchemy of not less
than thirty days.
9. REPRESENTATIONS AND WARRANTIES OF CUSTOMER
A. Equipment: Customer represents and warrants that it owns or
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has the legal right and authority, and will continue to own or have such right
and authority during the term of this Agreement, to place and use the Customer
Equipment as contemplated by this Agreement. Customer further represents and
warrants that its placement, arrangement, and use of the Customer Equipment in
the Gigabit Data Center complies with the Customer Equipment Manufacturer's
environmental and other specifications.
B. Customer's Business: Customer represents and warrants that
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Customer's services, products, materials, data, information and equipment used
in connection with this Agreement and Customer's use of GDC Services
(collectively, "Customer's Business") does not as of the Installation Date, and
will not during the term of this Agreement operate in any manner that would
violate any applicable federal, state or local law or regulation or infringe in
any way upon the rights of third parties.
C. Breach of Warranties: In the event of any breach, or
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reasonably anticipated breach, of any of the foregoing warranties, in addition
to any other remedies available in law or equity, Alchemy shall have the right,
at Alchemy's sole discretion, to suspend any related GDC Services if deemed
reasonably necessary by Alchemy to prevent any harm to its business.
10. DISCLAIMERS AND LIMITATION OF LIABILITY
A. THE COLLOCATION SPACE IS ACCEPTED "AS IS" BY CUSTOMER. CUSTOMER ACKNOWLEDGES
THAT NO REPRESENTATION HAS BEEN MADE BY ALCHEMY AS TO THE FITNESS OF THE
COLLOCATION SPACE FOR CUSTOMER'S INTENDED PURPOSE. EXCEPT FOR THE WARRANTIES SET
FORTH IN THIS ARTICLE, THERE ARE NO WARRANTIES, WHETHER EXPRESS, IMPLIED, ORAL,
OR WRITTEN, WITH RESPECT TO THE COLLOCATION SPACE OR SERVICES COVERED OR
FURNISHED PURSUANT TO THIS AGREEMENT, INCLUDING BUT NOT LIMITED TO, ANY IMPLIED
WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. MOREOVER, THE
REMEDIES PROVIDED IN THIS ARTICLE ARE EXCLUSIVE AND IN LIEU OF ALL OTHER
REMEDIES.
B. CUSTOMER AND ITS REPRESENTATIVES VISIT THE GDC AT THEIR OWN RISK AND
ALCHEMY ASSUMES NO LIABILITY FOR ANY HARM TO SUCH PERSONS RESULTING FROM ANY
CAUSE OTHER THAN ALCHEMY'S NEGLIGENCE OR WILLFUL MISCONDUCT RESULTING IN
PERSONAL INJURY TO SUCH VISITIORS.
C. ALCHEMY ASSUMES NO LIABILITY FOR DAMAGE OR LOSS RELATING TO CUSTOMERS
BUSINESS. TO THE EXTENT ALCHEMY IS LIABLE FOR ANY DAMAGE TO OR LOSS OF
CUSTOMER'S EQUIPMENT, SUCH LIABILITY SHALL BE LIMITED SOLELY TO THE THEN-CURRENT
VALUE OF CUSTOMER'S EQUIPMENT.
D. THE LIABILITY OF ALCHEMY FOR DAMAGES ARISING OUT OF THE SERVICES
PROVIDED HEREIN, INCLUDING, WITHOUT LIMITATION, MISTKES, OMISSIONS,
INTERRUPTIONS, DELAYS, TORTIOUS CONDUCT OR ERRORS, OR FAILURE TO FURNISH SPACE,
WHETHER CAUSED BY ACTS OF COMMISSION OR OMISSION, SHALL BE LIMITED TO A PRORATED
REFUND OF THE CHARGES PAID BY CLIENT FOR THE USE OF THE SPACE. THE RECEIPT OF
SUCH REFUNDS SHALL BE THE SOLE REMEDY AFFORDED TO CUSTOMER.
11. CONFIDENTIAL INFORMATION
A. 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.
B. 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; or (iv) is independently developed by
the receiving party.
12. EXCUSED PERFORMANCE
Neither Party shall be liable to the other Party under this Agreement for
any failure nor delay in performance that is due to causes beyond its reasonable
control, including but not limited to, acts of nature, governmental actions,
fires, civil disturbances, interruptions of power, or transportation problems.
13. ASSIGNMENT OR TRANSFER
Customer shall not assign or transfer the rights or obligations associated
with this Agreement, in whole or in part, without ALCHEMY's prior written
consent.
14. PUBLICITY
Customer shall not use Alchemy's name in publicity or press releases
without Alchemy's prior written consent.
15. LIMITATION OF LIABILITY
A. In no event shall Alchemy or any of its officers, directors, agents,
contractors or employees, be liable for any loss of profit or revenue or for
indirect, incidental, special, punitive or exemplary damages incurred or
suffered Customer arising ftom or pertaining to Customer's use or occupancy of
the Collocation Space including (without limitation) damages arising from
interruption of electrical power or HVAC services.
B. Customer shall indemnify and hold harmless Alchemy, its officers,
directors, agents, contractors and employees, from and against any and all third
party claims, costs, expenses or liabilities arising from or in connections with
Customer's use of the GDC facility. Customer further agrees to indemnify
Alchemy against Customer's acts of negligence resulting in damage to third
parties.
16. FORCE MAJEURE
Neither party shall be deemed in default of this Agreement to the extent
that performance of their obligations or attempts to cure any breach were
delayed or prevented by acts of nature, including earthquakes and floods, fire,
natural disaster, accident, acts of government, labor strikes or any other cause
beyond the control of such party.
17. GOVERNING LAW
This Agreement shall be governed and construed by the laws of the State of
California except as they pertain to its conflict of law provisions. The courts
of the State of California, County of Los Angeles shall have jurisdiction over
any legal disputes relating to or in connection with this Agreement.
18. ENTIRE AGREEMENT
This Agreement constitutes the entire understanding between the parties and
supercedes all other agreements, whether written or oral. This Agreement may
not be modified except in a writing which is signed by both parties or their
duly authorized representatives.
IN WITNESS WHEREOF, the Parties have executed this Agreement as of the date
first above written.
ALCHEMY COMMUNICATIONS, INC.
BY: /s/
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Authorized Signature
TITLE:
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XXXXXXX.XXX, INC.
BY: /s/
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Authorized Signature
TITLE:
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