COLOCATION SUPPORT SERVICES AGREEMENT
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THIS AGREEMENT entered into as of the 17th day of September 1998, by and between
Vancouver Telephone Company Limited ("VTC"), a British Columbia corporation,
and Crys*tel Telecommunications, Inc(insert full legal name) ("Customer"), a
Alberta corporation.
WHEREAS, Customer desires to place certain equipment in certain premises leased
by VTC located at Xxxxx 000 - 000 Xxxx Xxxxxxxx Xxxxxx, Xxxxxxxxx, X.X., and
desires to have certain support services provided for said equipment; and
WHEREAS, VTC is willing and able to provide such location and support services;
NOW, THEREFORE, in consideration of the mutual covenants herein and other good
and valuable consideration, the sufficiency of which is hereby acknowledged, the
parties agree as follows:
1. VTC will provide Customer with access to its premises and to adequate
space within the premises as may be necessary for the installation of Customer's
equipment as set forth on Schedule "A" which is attached hereto and made part
hereof (hereinafter "Equipment").
2. Additional support services which will be provided by VTC in connection
with the Equipment shall be as set forth on Schedule "B". Schedule "B" shall
also set forth the rates to be charged by VTC for any support services.
3. The initial term of this Agreement shall commence on October 1, 1998 and
shall continue for a period of one (1) from that date.
4. Either party may terminate this Agreement at any time during the Term by
giving written notice to the other party at least ninety (90) calendar days
prior to the effective termination date. In consideration of term discounts and
the fact that certain of VTC's expenses are amortized over the term of this
Agreement, in the event Customer elects to terminate the Agreement without cause
under this paragraph, Customer shall pay, in addition to all other charges
accrued through the date of termination, an amount equal to twenty-five percent
(25%) of the remaining Fees, set forth on Schedule "B" which would otherwise
have been paid through the end of the term by way of liquidated damages.
5. Customer shall also pay a one-time Coordination Fee for the initial
access lines, power and installation of rack(s) in connection with the
Equipment. Such fees shall be set forth on Schedule "B,'.
6. Customer shall be responsible for all taxes, duties and some other
liabilities which may result from this Agreement or any activities hereunder.
7.1 All invoices shall be due and payable in Canadian dollars upon receipt
without setoff or counterclaim.
7.2 For value received and as a general and continuing collateral security
for the payment of all amounts due hereunder by the Customer, including any
unpaid balance thereof, owed to VTC and to secure the performance of the
obligations under this Agreement or any related documents, the Customer hereby
grants to VTC a security interest in all the Customer's personal property as
defined in the Personal Property Security Act, R.S.O. 1990, c.P.l0 listed in
Schedule "A" attached hereto and referred to herein as the Equipment, and in the
undertaking of the Customer.
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8. Customer shall be responsible for the following:
a) Arrangement for inside delivery of each unit of equipment at
Customer's expense.
b) Installation of the Equipment at VTC's premises and connection of
said Equipment to such telecommunication lines and service as
Customer elects, at Customer's expense.
c) Providing one week prior notice of actual delivery and installation
dates for Equipment.
d) Maintenance of its Equipment, except as otherwise provided for
herein.
e) Notifying VTC of any space, power or environmental requirements
associated with the installation or operation of its Equipment.
9. In the event Customer is contracting with VTC for support services, VTC
shall be responsible only for those services specifically listed on Schedule
"B". Further VTC's responsibilities shall be contingent upon Customer's
fulfillment of its responsibilities to provide information, Equipment, Parts,
Personnel, etc. as may be required.
10. Except as specifically agreed, Customer retains all responsibility for
maintenance, repair and monitoring of its Equipment as well as for assuring that
the operation of said Equipment and its connections complies with all laws, rues
and regulations imposed by any competent authority.
11. Except as otherwise set forth herein, neither party shall be deemed
negligent, at fault or liable with respect to the other for any delay,
interruption or failure in performance hereunder resulting from fire, flood,
water, the elements, explosions, act of God, war, labour disputes or other cause
beyond its reasonable control.
12. Except to the extent it may be caused solely by the gross negligence or
intentional act of VTC, its agents or employees, Customer shall indemnify VTC,
its agents, contractors and employees and shall hold them harmless from and
against any and all claims, liability, damage, loss, or expense which may arise
as a result of:
a) The presence of the Equipment or Customer's employees, contractors
or agents on VTC's premises;
b) The installation, operation, maintenance or removal of Equipment;
c) Any inherent defects in the Equipment;
d) Any acts or omissions of Customer, its agents, employees or
contractors.
13.1 VTC shall not be liable for damages to Customer's Equipment except to
the extent the damage is caused solely by the gross negligence or intentional
acts of VTC, its agents or employees. In no event shall VTC's liability exceed
the lesser of the replacement value of the Equipment or the cost of repair.
13.2 Without limiting the foregoing, VTC shall not be responsible to the
Customer for any damages caused or related to distress levied for rent in
arrears, whether lawful or otherwise, over the goods and chattels of the
Customer.
13.3 VTC shall in no event whatsoever be liable or responsible in any way
for personal injury or death of any employee of the Customer, or any person who
may be upon the premises, or for any loss or damage or injury to any property
belonging to the Customer or its employees or to any other person while such
property is on the premises.
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14. In no event shall either party be liable to the other for any indirect,
incidental, special or consequential damages, including loss of revenue or
profits.
15.1 For purposes of facilitating the delivery and installation of
Customer's Equipment, VTC shall permit access to its premises to the Customer,
its agents, employees and contractors who, in VTC's discretion, do not pose a
security risk to the personnel or property of VTC or its other customers. Any
persons provided such access shall be accompanied at all times by a
representative of VTC. Access shall be provided during normal business hours
and upon reasonable advance notice to VTC for after hour access.
15.2 Reasonable notice shall be deemed to be a minimum of the following:
a) For installation or removal of equipment or connections, no less
than seven (7) days;
b) For routine/preventive maintenance, twenty-four (24) hours;
c) In the event of a malfunction causing of loss of service or degraded
conditions, VTC shall attempt to provide access as soon after
it receives notice as may be practical. Customer will be provided
with appropriate telephone numbers for making contact with VTC
personnel in the event of such an emergency.
16.1 Throughout the term of this Agreement, Customer shall maintain, at its
expense:
a) All risk property insurance covering the Equipment;
b) Comprehensive general liability (including products and completed
operations liability and broad form property damage), insurance
sufficient in type and amount to fulfill its responsibilities
hereunder especially with regard to the indemnification of VTC, its
employees and agents. The Customer further agrees that it will pay
as additional fees the amount of any increase in insurance premium
of any insurance policies held by VTC or any related corporation
on the premises if such increase is caused by any additional risk or
hazard caused or related to the Equipment.
16.2 Certification of such insurance and proof of payment of current
premiums thereon shall be delivered to VTC prior to the delivery of Customer's
Equipment hereunder and at any subsequent time upon ten (10) days' written
demand by VTC.
17. In the event Customer fails to pay any amount due under this Agreement
or fails to provide or maintain the insurance required hereunder, VTC may cancel
the Agreement upon ten (10) days' written notice. Upon the delivery of such
notice, the Agreement shall terminate upon the date specified unless the default
or breach is cured within that time.
18. Upon any other breach of this Agreement by a party, the other party may
terminate this Agreement by thirty (30) days' written notice if the breach is
not cured within the thirty (30) day period.
19. Upon the termination of this Agreement, Customer shall immediately, at
its expense, remove its Equipment from VTC's premises. If Customer fails to do
so within ten (10) days of the termination date, VTC may remove the Equipment
and store the same at Customer's expense. Any amount owing to VTC due to the
expenditures for such removal and storage and any amounts owing hereunder by the
Customer at such time including all legal fees or other related costs incurred
by VTC to collect same shall bear interest at a rate equal to the lesser of
fifteen percent (15%) per annum or the maximum rate permitted by law.
20. This Agreement sets forth the entire understanding between the parties
with regard to the subject matter hereof and supersedes any prior discussions or
representations between them with respect thereto. All amendments to this
Agreement shall be in writing and executed by both parties.
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21. Customer may not assign this Agreement or any of its rights hereunder.
The Customer shall not register this Agreement without the written consent of
VTC.
22. Any notice required by this Agreement shall be in writing and delivered
personally or by confirmed fax message, or by regular or certified mail or
express delivery to the address indicated herein for such purpose or at such
other address as a party may later advise in writing. All notice shall be
deemed effective upon personal delivery or on the date following the regular
mail postmark or when received if sent by certified mail or express delivery.
23. The parties designate the following addresses as for the delivery of any
notice required hereunder:
To VTC:
Vancouver Telephone Company Limited, attention: President
0000 Xxxxxx Xxxxxx, Xxxxxxxxx, XX X00 0X0
Telephone: (000) 000-0000 Facsimile: (000) 000-0000
To Customer:
Crys*tel Telecommunications, Inc. attention Xxxxxx
Address: 0000 Xxxxxx Xxx. Postal Code V7T 2145
Telephone: (000) 000-0000 Facsimile: (000) 000-0000
24. This Agreement shall be construed and interpreted in accordance with the
laws of the' Province of British Columbia in which this Agreement is executed
and the federal laws of Canada applicable therein. The parties attorn to the
exclusive jurisdiction of the Province of British Columbia and agree that any
action or pr9ceeding brought by either party to enforce this Agreement shall be
commenced in that province.
25. Arbitration. Any dispute, controversy or claim arising out of or
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relating to this Agreement or the breach or termination thereof or any dealings
between the Representative, on one hand, and VTC and/or VTC officers, directors,
employees or agents, on the other hand, shall be resolved by final and binding
arbitration before a single arbitrator under the rules of the British Columbia
Arbitration and Mediation Institute (BCAMI) under the provisions of the
Commercial Arbitration Act of British Columbia. The arbitrator may not limit,
expand or otherwise modify the terms of this Agreement and shall not have
authority to award punitive or other non-compensatory damages to either party.
In order to provide an expeditious resolution of any dispute, the parties agree
that: (i) if the parties have not agreed on an arbitrator within ten (10) days
after the date of commencement of the arbitration, the parties hereto agree that
the BCAMI shall designate a single arbitrator and that designation shall be
final and binding; and (ii) absent extraordinary circumstances, the arbitration
hearing shall begin within ninety (90) days from the date of commencement of
arbitration, and shall continue each business day thereafter until completed.
The award in such arbitration proceeding may be entered in any court specified
in Section 20.1. 26. The headings appearing in this Agreement have been
used for convenience and reference only and in no way define, limit or enlarge
the scope or meaning of this Agreement or of any provision thereof.
27. Any provision in this Agreement which is prohibited or unenforceable in
any jurisdiction shall, as to such jurisdiction be ineffective to the extent of
such prohibition or unenforceability without invalidating the remaining
provisions hereof or affecting the validity or enforceability of such provision
in any other jurisdiction.'
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28. The parties hereto have requested and agreed that this Agreement be
drafted and executed in the English language. Les parties aux presentes ont
demande que le present contrat soit redige dans Ia langue Anglaise.
29. This Agreement shall ensure to the benefit of and be binding upon the
Successors and permitted assigns of the parties hereto provided that the
Customer shall not assign or transfer this Agreement in whole or in part without
the prior written consent of VTC. If consent is given, the assigns will be
required to sign a non-disclosure/non-competition agreement.
30. This Agreement together with all referenced attachments constitutes the
entire agreement between the parties pertaining to the subject matter hereof and
supersedes any prior agreements, negotiations or proposals, whether written or
oral, between the parties. There are no other representations, conditions or
warranties, expressed, implied, statutory or otherwise between the parties
applicable to the subject matter hereof, except as specifically set forth
herein.
IN WITNESS WHEREOF the parties hereto have executed this Agreement on the day
and year written below, through and by their duly authorized representatives.
VANCOUVER TELEPHONE COMPANY LIMITED
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Authorized Signatory Date ) S E A L
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Authorized Signatory Date )
CUSTOMER
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Authorized Signatory Date ) S E A L
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Authorized Signatory Date )
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SCHEDULE "A"
EQUIPMENT
EFFECTIVE DATE ___________________ TERMINATION DATE ___________________
EQUIPMENT SPECIFICATIONS:
Equipment Unit Quantity Height Width Depth Weight Power
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SCHEDULE "B"
VTC PRICING SHEET
SERVICES FEES FREQUENCY
COORDINATION I INSTALLATION $750 - $2,000 One-Time
CARRIER ACCESS -
T-1 Access $100 (first) Monthly
T-1 Access $75 (each, 2-5) Monthly
T-l Access $50 (each, 6+) Monthly
T-1 Installation $ 200 (each) One-Time
T-1 Installation 125 (each, multiple) One-Time
DSX-DISTRIBUTION
T-l Access $200 (first) Monthly
T-1 Access $150 (each, 2-5) Monthly
T-1 Access $100 (each, 6+) Monthly
T-1 Installation $200 (each) One-Time
T-1 Installation 125 (each, multiple) One-Time
SPACE OPTIONS -
Space for 19" or 23" Rack or Cabinet $300 Monthly
Space for 19" or 23" Secured Cabinet $500 Monthly
Dedicated Space - 50 sq.ft. $800 Monthly
Each additional 50 sq.ft. 600 (per addt'l SOft2) Monthly
POWER AND UPS BACKUP -
A/C or D/C Power $20 per Amp Monthly
Hourly Backup Charge $2 per Amp Monthly
MISCELLANEOUS SERVICES -
24-hour Technical Service and Support $75 per hour (Normal
Business Hours) $125
per hour (After Hours,
minimum 3 hours
charged) Frequency
This quotation is valid for thirty (30) days from the signing of the Agreement.
If service does not commence within that time period, revised pricing may be
implemented by VTC.
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