AGREEMENT FOR TERMINAL FACILITY
COLLOCATION SPACE
THIS AGREEMENT made this IS"' day of January, 1999, (the "Effective Date")
by and between, ALCHEMY COMMUNICATIONS, INC., a California corporation,
(hereinafter called "Alchemy") and PLUS NET, INC., a California corporation
(hereinafter called "Customer").
RECITALS
WHEREAS, Alchemy owns or controls a leasehold interest in certain office
and storage Collocation Space within a commercial building in the State of
California (generally described herein as the "Premises") which may be suitable
for the placement and operation of telecommunications equipment; and
WHEREAS, Customer desires access to the Premises for the purpose of placing
therein certain telecommunications equipment and cabling (hereinafter, the
"Equipment") the individual location for such Equipment to be referred to herein
as the "Terminal Facility"; and
WHEREAS, Alchemy may be willing to grant Customer the right to occupy or
use portions of the Terminal Facility (hereinafter, the "Collocation Space")
upon the ten-ns and conditions hereinafter set forth.
NOW, THEREFORE, in consideration of the mutual covenants contained herein,
Alchemy and Customer (collectively the "Parties") hereby agree as follows:
1. LICENSE TO OCCUPY, PERMISSIBLE USE AND RELOCATION PROVISIONS:
A. This document shall comprise a complete and binding agreement
between Customer and Alchemy only upon execution by Alchemy and Customer of a
Collocation Schedule pertaining to the Terminal Facility in which Alchemy has a
leasehold interest. The Collocation Schedule, 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 the Collocation Schedule,
terms of the Collocation Schedule shall in all cases prevail.
B. The Collocation Schedule shall have attached thereto the following
Exhibits: General Description of Work Tasks and Special Terms and Conditions
identified as "Exhibit I"; and Dispatch Labor Charges; identified as "Exhibit
2."
C. Customer shall utilize the Collocation Space only for
interconnection of the Equipment to the network services of Alchemy.
D. In connection with the Collocation Space made available hereunder,
Alchemy shall perform services which support the overall operation of the
Terminal Facility (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 Collocation Space. Further, Customer shall maintain the Collocation
Space in a safe condition, including but not limited to the preclusion of
storing combustible materials in the Collocation Space.
E. Unless otherwise provided in the Collocation Schedule, each visit by
Customer to the Collocation Space will be deemed to utilize escort services
furnished by Alchemy from the time Customer's Employee(s) sign(s) in upon
entering the Terminal Facility to the time Customer's employee(s) sign(s) out
upon leaving the Terminal Facility. Charges for escort - 1
services are consistent with the dispatch labor charges (the "Dispatch Labor
Charges") depicted in Exhibit 2 to the Collocation Schedule.
F. Customer acknowledges that it has been granted only a license to
occupy the Collocation Space and that it has not been granted any real property
interests in the Collocation Space.
2. ADDITIONAL SERVICES:
(1). System Administration: Alchemy shall provide complete system
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administration for Customer. For a monthly fee stated in the Collocation
Schedule.
(11). Electronic Commerce Services: Alchemy shall provide Customer
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with electronic commerce ("e- commerce") services, including credit card
processing and applicable record keeping at $0.25 per transaction.
(iii). Programming Services: Alchemy will provide programming
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services, including digitizing of text, graphics and sound. An additional fee of
one hundred ($100) dollars per hour is attached to this service.
3. TERM OF AGREEMENT, TERMINATION AND RENEWAL:
A. Customer's license to occupy the Collocation Space shall begin on
the "Requested Service Date," as set forth in paragraph 3 of the Collocation
Schedule. The minimum term of the Customer's license to occupy the Collocation
Space shall be the period set forth in the Collocation Schedule (the "Minimum
Term".)
B. Following the expiration of the Tenn for the Collocation Space,
Customer's license shall continue in effect on a month-to-month basis upon the
same terms and conditions specified herein, unless terminated by Alchemy upon
thirty (30) day's prior written notice.
C. Upon termination or expiration of the Term for the Collocation
Space, Customer agrees to remove the Equipment and other property that has been
installed by Customer or Customer's agent. 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.
D. In the event the Terminal Facility 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
Collocation Space.
4. 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 Collocation
Space (the "Occupancy Fees"), connectivity (or cross- connect fees, if
applicable), power charges, if applicable and system administration. In addition
to any Recurring Fees, Customer shall be charged non-recurring fees for
build-out of the Collocation Space (the "Build-Out Charges"), including, where
applicable, cross-connect installation fees and/or Dispatch Labor Charges, where
applicable, which shall be set forth in the relevant Collocation Schedule and
the Exhibits thereto. If Customer requests that
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Alchemy provide services not delineated herein or in the Collocation Schedule at
any time during the Term, Customer agrees to pay Alchemy's price for such
services in effect at the time such service was rendered.
B. Prices do not include taxes, except as specifically stated herein.
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 Ten-ninal Facility. 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 Collocation 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 Collocation 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. All Recurring Fees shall be invoiced thirty (30) days prior to the
beginning of each month commencing thirty (30) days prior to the first day of
the Term as identified in the Collocation Schedule and thereafter, on the first
day of each calendar month. Charges for partial months shall be prorated
accordingly. All Recurring Fees shall be payable net thirty (30) days from date
of invoice and prior to the beginning of the invoiced period. Customer shall be
subject to late charges if payment is not received within the payment ten-n
period. The 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
Collocation 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 Collocation Space.
5. 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 wnitten 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 for
construction work.
B. Customer shall not make any construction changes or material
alterations to the interior or exterior portions of the Collocation Space,
including any cabling or power supplies for the Equipment, without obtaining
Alchemy's written approval for Customer to have the work performed or have
Alchemy perform the work. Alchemy reserves the right to perform and manage any
construction or material alterations within the Terminal Facility and
Collocation Space areas at rates to be negotiated between the Parties hereto.
C. Customer's use of the Collocation Space, installation of Equipment
and access to the Terminal Facility 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 Terminal Facility. Customer agrees not
to erect any signs or devices to the exterior portion of the -3-
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Collocation 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,
collocation space within the Collocation Space without Alchemy's prior written
consent. If Customer should provide, or make available to any third party,
collocation 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 9 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 Collocation Space or the
Terminal Facility 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 Collocation 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.
6. INSURANCE:
Customer agrees to maintain, at Customer's expense, during the entire time
this Agreement is in effect for each Collocation Space (1) Comprehensive General
Liability Insurance in an amount not less than One Million Dollars ($
1,000,000.00) per occurrence for bodily injury or property damage, (ii)
Employers Liability in an amount not less than Five Hundred Thousand Dollars
($500,000.00) per occurrence, and (ill) Workers' Compensation in an amount not
less than that prescribed by statutory limits. Prior to taking occupancy of the
Collocation Space, Customer shall furnish Alchemy with certificates of insurance
which evidence the minimum levels of insurance set forth herein and which name
Alchemy as an additional insured. Customer shall also maintain sufficient
property insurance to cover any Equipment placed in the Collocation Space.
7. 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, which shall not be less than fourteen
(14) calendar days, 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. 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.
B. At any time during the term of this Agreement, Alchemy may, at
Alchemy'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 Paragraph I of 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 with respect to the purchase
of telecommunications services from Alchemy, which would entitle Alchemy under
its separate tariffs and agreements to terminate its services to Customer, then
Alchemy shall he entitled to terminate this Agreement and all Collocation
Schedules to which this Agreement pertains.
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8. WARRANTIES, REMEDIES AND DISCLAIMERS:
A. Alchemy shall, at Alchemy's own expense, defend Customer against
any and all claims that the Collocation Space used by Customer hereunder
infringes on any third party's property or ownership rights. Alchemy shall, at
Alchemy's sole option, either (1) settle any such claim, (11) secure valid
rights for Customer's continued use, or (111) furnish equivalent Collocation
Space that is not infringing and that can be used to satisfy the original
specifications in Alchemy's determination. This warranty and remedy by Alchemy
shall be valid only if (i) Customer gives Alchemy prompt written notice upon
Customer's receipt of any such claim, (ii) Customer provides Alchemy with all
pertinent information in its possession relative to such claim and (Iii) Alchemy
shall have sole control over the settlement or defense of such claim.
B. 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, OR-AL, 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.
9. 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.
10. 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.
11. PUBLICITY:
Customer shall not use Alchemy's name in publicity or press releases
without Alchemy's prior written consent.
12. LIMITATION OF LIABILITY:
A. In no event shall Alchemy, Customer, or any of their respective
officers, directors, agents, contractors or employees, be liable, one to the
other, for any loss of profit or revenue or for indirect, incidental, special,
punitive or exemplary damages incurred or suffered by each other, arising from
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, and its
respective officers, directors, agents, contractors and employees, from and
against any and all claims, costs, expenses or liability (including by any
representation or promise not specifically expressed in this Agreement). Any
modification made hereto shall not be valid and binding unless it is in writing
and signed by both Parties.
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13. NOTICES:
A. Any notice required to be given pursuant to this Agreement shall be
in writing and mailed by certified or registered mail, return receipt requested,
or delivered by a national overnight express service or by facsimile, with a
written acknowledgment of receipt to the following addresses:
(i) Customer:
Plus Net Inc.
00000 Xxxxxxxxxx Xxxxxxx
Xxxxxxxxx, Xxxxxxxxxx 00000
Attn: Xx. Xxxxx X. Xxxxxxxx
(ii) Alchemy:
Alchemy Communications, Inc.
0000 XxXxxx Xxxxxx
Xxxxxxxxxx, Xxxxxxxxxx 00000-0000
Attn: Xx. Xxxxx Xxxx
X. Either party may change the address to which notice or payment is to
be sent by written notice to the other party pursuant to the provisions of this
paragraph.
14. JURISDICTION AND DISPUTES:
A. This Agreement shall be governed by the laws of the State of California.
B. All disputes hereunder shall be resolved in the applicable state or
federal courts of California, the county of Los Angeles. The parties consent to
the jurisdiction of such courts, agree to accept service of process by mail, and
waive any jurisdictional or venue defenses o1herwise available.
15. INTEGRATION:
This Agreement constitutes the entire understanding of the parties, and
revokes and supersedes all prior agreements between the parties and is intended
as a final expression of their Agreement. It shall not be modified or amended
except in writing signed by the parties hereto and specifically referring to
this Agreement. This Agreement shall take precedence over any other documents
that may be in conflict therewith.
IN WITNESS WHEREOF, the Par-ties have executed this Agreement as of the
date first above written.
ALCHEMY COMMUNICATIONS, INC. PLUS NET, INC.
By: /S/ Xxxxx Xxxx By: /S/ Xxxxx X. Xxxxxxxx
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Name: Xxxxx Xxxx Name: Xxxxx X. Xxxxxxxx
Title: President Title: President
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COLLOCATION SCHEDULE
This Collocation Schedule is made on this W'day of January, 1999 (the
"Effective Date") and subject to all definitions, terms and conditions of that
certain Agreement for Terminal Facility Collocation Space, dated January 18,
1999, the ("Agreement") by and between ALCHEMY COMMINICATIONS, INC., ("Alchemy")
and PLUS NET, INC., ("Customer"). Customer accepts and ratifies the terms and
conditions of the Agreement, with respect to the Terminal Facility identified
below, as specifically set forth herein.
1. ADDRESS OF TERMINAL FACILITY: 2. COLLOCATION SPACE:
0000 Xxxx 0 0x Xxxxxx
Xxxxx Xxx Cages: Up to 000 Xxxxxx Xxxx.
Xxx Xxxxxxx, Xxxxxxxxxx
3. TERM:
Requested service date: May 1, 1999
Initial period: REDACTED.
4. MONTHLY RECURRING SERVICE FEES:
Occupancy Fees: REDACTED usage of up to 150 square feet.
Cross-Connect Fees: * REDACTED per DS-0, REDACTED per DS-1, REDACTED per
DS-3.
Power Charge:
AC (120 Volt) squared**: First 100 amps included in monthly charge. Battery
Back-up.
Thereafter REDACTED.
5. HOSTING VARIABLE MONTHLY FEE:
Pricing for bandwidth usage shall be at Alchemy's cost plus ten (10%)
percent.
6. SPECIAL SERVICES FEES:
System Administration: REDACTED per month for "Eyes/Hands Support."
Programming Services: REDACTED per hour.
Electronic Commerce Services: REDACTED per transaction.
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* A "cross-connect" is an electrical connection made between two DS-1 circuits
on a WX-1 cross-connect panel or two DS-3 circuits on a DSC-3 cross-connect
panel which interconnects the Equipment with other telecommunications services.
Alchemy shall provide appropriate cable facilities (i.e., patch cords and cables
required to connect WX-N jacks) between the Equipment and Alchemy common
cross-connect panel located at the Premises. Cross-connect charges are
determined by the level and type of facilities connected. No cross-connect shall
be provided for any period past the expiration of the Agreement.
* *AC Power charges will be applied based on Customer connected Equipment load
based on an initial survey and adjusted annually based on surveys performed on
or about the anniversary of the original survey.
ALCHEMY COMMUNICATIONS, INC. PLUS NET, IN
By: /s/ Xxxxx Xxxx By: /s/ Xxxxx X. Xxxxxxxx
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Authorized Signature Authorized Signature
Date: 01-18-99 Date: 01/18/99
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EXHIBIT I to Collocation Schedule
GENERAL DESCRIPTION OF WORK TASKS AND SPECIAL TERMS AND CONDITIONS
1. GENERAL DESCRIPTION - ALCHEMY WORK TASKS:
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Alchemy will provide standard 100 amps/60 hertz, U-Plex for AC Power. Included
with 10 meg service.
2. GENERAL DESCRIPTION - CUSTOMER WORK TASKS:
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Customer will provide a list of persons authorized to access Collocation Space.
3. SPECIAL TERMS AND CONDITIONS(AS APPLICABLE)-
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Visitor parking is currently available at no additional cost. Office space is
available on a first-come basis. Guaranteed office space may be arranged at an
additional cost, as available.
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EXHIBIT 2
to Collocation Schedule
DISPATCH LABOR CHARGES
The following charges shall be applied for labor performed by Alchemy on the
request of Customer.
1. Normal Alchemy business hours: REDACTED each add l 1/2hour, (Monday
to Saturday 7:00 a.m. to 7:00 p.m., except Alchemy holidays.)
2. Off hour Alchemy business hours: REDACTED each additional 1/2 hour
(Monday to Saturday 7:00 p.m. to 7:00 a.m., except Alchemy holidays.)
3. Sundays and Holidays: REDACTED for first 1/2 hour, REDACTED each
additional 1/2hour.
Note: Labor hours are billed in half hour increments. Alchemy off-hour labor
hours are based on a four hour minimum.
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