Co-location and Bandwidth Services Agreement
Exhibit
10.12
Co-location
and Bandwidth Services
Agreement
This
Co-location and Bandwidth Agreement (the “Agreement”) by and
between:
|
PEER
1 NETWORK, INC.
“Peer
1”
|
TéliPhone
inc.
“Customer”
|
||
|
Address:
|
1600
– 555 West Hastings
|
Address:
|
0000,
Xxxx xx Xxxxxx Xxxx
|
|
Xxxxxxxxx,
XX X0X 0X0
|
Xxxxx
0000 Xxxxxxxx, Xx X0X 0X0
|
||
|
Contact:
|
Xxxx-Xxxxxxxxx
Forget
|
Contact:
|
Xxxxxx
Xxxxxxxx
|
|
Telephone:
|
000-000-0000
|
Telephone:
|
000-000-0000
|
|
Fax:
|
000-000-0000
|
Fax:
|
000-000-0000
|
|
Email:
|
xxxxxxx@xxxx0.xxx
|
Email:
|
xxxxxxxxx@xxxxxxxxx.xx
|
This
Agreement (which includes and incorporates by reference Schedule 1 attached
and
any Service Agreement Addendums) sets forth the terms under which the parties
agree that Peer 1 will provide certain services to Customer according to the
following specifications:
GENERAL
TERMS AND CONDITIONS
|
1.
|
Services. Supplier
agrees to supply the Services in accordance with the terms of this
Agreement. Customer agrees to receive the Services from
Supplier in accordance with the terms of this
Agreement.
|
|
2.
|
Other
Services. Upon written request by Customer, Peer 1 may at
its option, provide Customer with technical and non-technical support,
such as equipment reboots, troubleshooting, DNS and other support
(“Other
Services”), in connection with Customer’s use of the Customer Space and
Bandwidth Services. Unless the parties agree otherwise,
Customer will pay for such Other Services in accordance with the
Technical
Support Services section of this
Agreement.
|
|
3.
|
Term.
The Term of this Agreement will commence five (5) days after the
“Effective Date” from Schedule 1 or the day the Customer connects to Peer
1 Network, whichever is first, and will continue thereafter for the
Term
specified in the Service Table, unless terminated by either party
as
permitted by this Agreement. This contract shall automatically
renew for a period of subsequent one (1) year periods unless written
notice is provided by either party to the other at least 60 days
prior to
the expiration date, in which case the contract will expire on said
expiration date.
|
|
4.
|
Payment.
|
|
4.1
|
Customer
will pay Peer 1 the One-Time Install Fees and Recurring Monthly Fees
specified in the Service Table, as well as any charges for Other
Services
and the cost (on an estimated or actual basis) of supplying electrical
power to the Customer Space in excess of 3.75 amps for octals, 7.5
amps
for quarter cabinets, or 15 amps for half, full or custom cages (the
“Additional Power”). Upon 30 days or greater written notice
prior to the end of the Term, Peer 1 may change any fees payable
under
this Agreement. Customer will pay all taxes levied against or
upon the services stipulated in the Service Table (as amended by
the
parties from time to time) or otherwise provided by Peer 1 under
this
Agreement (not including taxes based on Peer 1’s
income).
|
|
4.2
|
All
One-Time Install Fees will be payable in advance. All Recurring
Monthly Fees will be payable monthly in advance. Monthly Fees
for Internet Traffic and charges for Other Services, which are not
billed
as Recurring Monthly Fees, will be payable monthly in
arrears.
|
|
4.3
|
Except
for the First Payment shown in the Service Table, which must be paid
by
Customer to Peer 1 before commencement of the Term, all amounts will
be
payable on the 15th of
the month in which an invoice is received, which invoices will be
issued
on the first day of each month. Customer will pay by
pre-authorized payment to a Customer credit card, or by cheque of
immediately available funds remitted to Peer 1 at the address set
forth
above.
|
|
4.4
|
Any
payment not made when due will be subject to interest of two percent
(2%)
per month compounded monthly (equivalent to a yearly interest rate
of
26.86%).
|
|
4.5
|
If
Customer’s traffic usage fails to meet or exceed the amount specified as
the Minimum Commitment in the Bandwidth Pricing section of the Service
Table of this Agreement, Customer will be billed for the amount of
the
Minimum Commitment.
|
|
4.6
|
Peer
1 reserves the right to require a security deposit, the amount of
which is
based upon one (1) month’s estimated or current
usage.
|
|
5.
|
Termination. Either
party may terminate this Agreement on 30 days written notice, if
the other
party becomes the subject of any voluntary proceedings under any
bankruptcy or insolvency laws, or becomes the subject of any involuntary
proceedings under any bankruptcy or insolvency laws which are not
dismissed or withdrawn within 60 days after filing. Peer 1 may terminate
this Agreement on 30 days written notice if the Customer commits
a
material default (which will include without limitation any failure
to
make any payment when due) and fails to rectify such default within
10
days after being given notice of such default by the other
party.
|
1
|
6.
|
If
Customer is in Default. If Customer is in default of any of
its obligations under this Agreement, then Peer 1 may in its sole
discretion do any or all of the following: (i) without notice suspend
access to the Customer Space or the Premises, (ii) if Customer’s default
is non-payment of any sums due to Peer 1, exercise all the rights
and
remedies of a secured party under applicable law including, without
limitation, with the minimum notice (if any) required by law, Peer
1 may
seize the Equipment and sell the Equipment to third parties in
satisfaction of any Customer indebtedness owing to Peer 1 as well
as any
costs (including reasonable legal fees) incurred by Peer 1 in exercising
any remedy under this Agreement, and (iv) if Peer 1 terminates this
Agreement in accordance with Section 5, after such termination is
effective, remove the Equipment from the Customer Space, store the
Equipment at another location at Customer’s expense, and license the
Customer Space to a third party.
|
|
7.
|
Credit
Authorization. Customer hereby authorizes Peer 1 and gives
consent to Peer 1 under applicable privacy laws for Peer 1 to obtain
credit information and bank and other financial references regarding
Customer for the purposes of assessing Customer’s credit worthiness, and
Customer will promptly execute and deliver to Peer 1 such further
documents and assurances and take such further actions as Peer 1
may from
time to time reasonably request in order to carry out the intent
and
purpose of this Section.
|
|
8.
|
Limitation
of Liability. CUSTOMER ACKNOWLEDGES THAT PEER 1 PERMITS
OTHER LICENSEES TO INSTALL THEIR EQUIPMENT IN THE
PREMISES. PEER 1 WILL HAVE NO LIABILITY FOR ANY DAMAGES, COSTS,
OR LOSSES INCURRED BY CUSTOMER (OR ITS CLIENTS) CAUSED BY SUCH OTHER
LICENSEES’ ACTS, EQUIPMENT, OR FAILURES TO ACT. THE LIMIT OF
PEER 1’S LIABILITY IN CONTRACT, TORT (INCLUDING NEGLIGENCE) OR BY STATUTE
OR OTHERWISE TO CUSTOMER (OR ITS CLIENTS) CONCERNING PERFORMANCE
OR
NON-PERFORMANCE IN ANY MANNER RELATED TO THIS AGREEMENT, FOR ANY
AND ALL
CLAIMS WILL NOT, IN THE AGGREGATE, EXCEED THE TOTAL FEES PAID BY
CUSTOMER
TO PEER 1 UNDER THIS AGREEMENT IN THE IMMEDIATELY PRECEDING 2 MONTHS
FROM
THE DATE THE CLAIM AROSE. IN NO EVENT WILL PEER 1 BE LIABLE FOR
ANY LOST PROFITS, SPECIAL, INDIRECT, CONSEQUENTIAL, INCIDENTAL OR
PUNITIVE
DAMAGES.
|
|
9.
|
Force
Majeure. Neither party will be liable for any delay,
interruption or failure in the performance of its obligations if
caused by
acts of God, war, declared or undeclared, fire, flood, storm, slide,
earthquake, or other similar event beyond the control of the party
affected (“Force Majeure”). If any Force Majeure occurs, the
party claiming the Force Majeure will promptly notify the
other. The party claiming the Force Majeure will use
commercially reasonable efforts to eliminate or remedy the Force
Majeure. This Section will not apply to excuse a failure to
make any payment when due.
|
|
10.
|
Reselling. Upon
prior written approval of Peer 1 which will not be unreasonably withheld
or delayed, Customer in the normal course of its business may resell
to
its clients use (subject to all the terms of this Agreement) of the
Customer Space and Bandwidth Services provided by Peer 1 to Customer
pursuant to this Agreement, except that Customer will not allow such
clients to interconnect with other users in the Premises. Such
clients will be deemed to be Customer’s contractors to the extent they or
their representatives are present at the Premises. Customer will
act as
the single point of contact with Peer 1 with respect to Customer’s
clients. Customer will remain responsible for all fees or other
costs under this Agreement incurred by Customer’s clients, both with or
without the consent of Customer. Customer either will cause such
clients
to be covered by Customer’s insurance coverages as required by this
Agreement or will cause such clients to obtain such insurance
independently. Any act or omission of any such client that would
be a
breach of this Agreement if committed by Customer will be deemed
a breach
of this Agreement by Customer. Customer agrees to defend,
indemnify and hold harmless Peer 1, and its officers, directors and
employees (collectively, the “Indemnities”), from any and all liabilities,
costs and expenses, including reasonable legal fees, related to or
arising
from (i) any act or omission of any such client that would be a breach
of
this Agreement if committed by Customer, and (ii) any claim by any
such
client arising from use of the Premises, services provided by Peer
1 under
this Agreement or otherwise from performance or non-performance by
a party
in any manner related to this
Agreement.
|
|
11.
|
Miscellaneous.
|
|
11.1.
|
Notices. Every
notice, approval, request, authorization, direction or other communication
under this Agreement will be given in writing to the party at the
address
first set forth above for such party and will be deemed to have been
delivered and given for all purposes (i) on the delivery date, if
delivered personally; (ii) one business day after deposit with a
commercial overnight carrier, with written verification of receipt,
if
sent by courier; (iii) upon completion of transmission, if sent via
facsimile with a confirmation of successful transmission; and (iv)
upon
personal acknowledgement by the recipient, if sent by
email.
|
|
11.2.
|
Compliance
With Laws. Customer will comply with all applicable
laws, regulations, and ordinances.
|
|
11.3.
|
Assignment. Customer
may not assign this Agreement or any of its rights or obligations
or the
license hereunder, without the prior written consent of Peer
1. Peer 1 may assign its rights and obligations under this
Agreement to a Peer 1 affiliate, without Customer’s
consent.
|
|
11.4.
|
Survival. The
provisions set forth in Sections 4, 6, 8, 9, 10 (indemnity obligations
only), 11, 22, 23 and 26 (indemnity obligations only) of this
Agreement will survive termination or expiration of this
Agreement.
|
|
11.5.
|
Reservation
of Rights. Peer 1 reserves all rights not specifically
granted herein.
|
|
11.6.
|
Entire
Agreement. This Agreement supersedes all previous
Agreements and Service Agreement Addendums between the
parties. This Agreement, the Schedule, and any subsequent
Service Agreement Addendums constitute the entire agreement between
the
parties regarding the subject matter hereof and supersede all proposals
and prior discussions and writings between the parties with respect
thereto. EXCEPT AS SPECIFICALLY PROVIDED IN THIS AGREEMENT,
PEER 1 MAKES NO REPRESENTATION, WARRANTY OR CONDITION, EXPRESS OR
IMPLIED,
AND EXPRESSLY EXCLUDES ALL IMPLIED OR STATUTORY WARRANTIES OR CONDITIONS
OF MERCHANTABILITY, MERCHANTABLE QUALITY, DURABILITY OR FITNESS FOR
A
PARTICULAR PURPOSE OR TITLE OR NON-INFRINGEMENT AND THOSE ARISING
BY
STATUTE OR OTHERWISE IN LAW OR FROM A COURSE OF DEALING OR USAGE
OF
TRADE.
|
2
|
11.7.
|
Modifications. This
Agreement may not be altered, amended or modified, except in writing
signed by both parties.
|
|
11.8.
|
No
Waiver. No failure or delay in enforcing any right or
exercising any remedy will be deemed a waiver of any right or
remedy.
|
|
11.9.
|
Severability
and Reformation. If any portion of this Agreement is
determined to be or becomes unenforceable or illegal, such portion
will be
reformed to the minimum extent necessary in order for this Agreement
to
remain in effect in accordance with its terms as modified by such
reformation.
|
|
11.10.
|
Remedies
not Exclusive. The remedies available to the parties under this
Agreement are cumulative and not exclusive to each other, and any
such
remedy will not be deemed or construed to affect any right which
either of
the parties is entitled to seek at law, in equity or by
statute.
|
|
11.11.
|
Relationship. The
relationship of Peer 1 to Customer will be that of an independent
contractor, and neither Peer 1 nor any employee of Peer 1 will be
deemed
to be an agent or employee of
Customer.
|
|
11.12.
|
Choice
of Law and Attornment. This Agreement will be governed
and interpreted by the laws of the jurisdiction where the Premises
are
located, without regard to its conflicts of law provisions. The
parties hereby irrevocably and unconditionally attorn to the non-exclusive
jurisdiction of the courts of the jurisdiction where the Premises
are
located, and all courts competent to hear appeals
therefrom.
|
|
11.13.
|
Further
Assurances. Each of the parties will promptly execute
and deliver to the other at the cost of the other such further documents
and assurances and take such further actions as the other may from
time to
time request in order to more effectively carry out the intent and
purpose
of this Agreement and to establish and protect the rights, interests
and
remedies intended to be created in favour of the
other.
|
|
11.14.
|
Liens
and Encumbrances. Customer (and its clients) will not
have the power, authority or right to create and will not permit
any lien
or encumbrance, including without limitation, tax liens, mechanics’ liens,
builders liens or other license or encumbrances with respect to work
performed, in connection with the Equipment or use of the Customer
Space.
|
|
11.15.
|
Language. This
Agreement and all related documents have been drawn up in English
at the
mutual request of the parties hereto. La présente convention et
tous documents y afférents ont été rédigés en anglais à la demande
mutuelle des parties aux présentes.
|
CO-LOCATION
TERMS AND CONDITIONS
|
12.
|
Grant
of License. Subject to the terms of this Agreement, Peer 1
hereby grants to Customer, as of the Effective Date, a nonexclusive
license to install, operate, replace, remove and maintain communications
equipment, cabling, connections, associated hardware and accessions
(the
“Equipment”) in the Co-location Space specified in the Service Table (the
“Customer Space”), in the Premises during the Term. The license
granted in this Agreement is a license of space only, and does not
create
an ownership interest or property rights of any nature in Peer 1’s real or
personal property.
|
|
13.
|
Installation
and Requirements. Customer will be responsible for the
delivery and installation of the Equipment and the connection of
the
Equipment to telecommunications lines and power. Except with
Peer 1’s prior written approval and subject to the terms of this
Agreement, Customer may only install or remove Equipment upon reasonable
prior written notice to Peer 1 and during business days between 8:00
a.m.
and 5:00 p.m. Customer will only install or place Equipment in
the Customer Space. Peer 1 reserves the right to approve of
Customer’s technicians and other contractors. During the Term
of this Agreement, Customer will immediately notify Peer 1 of any
space,
power or other requirements associated with the installation or operation
of the Equipment. Peer 1 will have no duty to monitor, maintain
or care for the Equipment.
|
|
14.
|
Maintenance
and Use of Premises. Customer, at its own cost and expense,
will protect, maintain and keep in good order the Customer Space
and any
Equipment in such space. Customer will ensure that neither
Customer nor its employees, agents, contractors or invitees damage
any
part of the Premises or any property located in or about the Premises,
or
interfere, or allow the Equipment to constitute a hazard to or to
interfere with, Peer 1 or any other user of the Premises or any equipment
owned or used by Peer 1 or any other user of the
Premises. Customer will not make any alterations or
installations of any kind to the Premises without the prior written
consent of Peer 1.
|
|
15.
|
Immediate
Threats. If, in the determination of Peer 1, acting
reasonably, the Equipment poses an immediate threat to the physical
integrity of the Premises or the physical integrity or performance
of the
equipment of Peer 1 or any other user of the Premises, or poses an
immediate threat to the safety of any person, then Peer 1 may perform
such
work and take such other actions that it may consider necessary without
prior notice to Customer and without liability for damage to the
Equipment
or for any interruption of Customer’s (or its clients’)
businesses. As soon as practicable after performing such work,
Peer 1 will advise Customer in writing of the work performed or the
action
taken.
|
|
16.
|
Intervention. If
any part of the Equipment is not placed and maintained in accordance
with
this Agreement, and Customer fails to correct the violation within
7 days
after receipt of written notice thereof from Peer 1, then Peer 1
may, at
its option, without further notice to Customer, correct the deficiency
at
Customer’s expense without liability for damages to the Equipment or
interruption of Customer’s (or its clients’) businesses. As
soon as practicable thereafter, Peer 1 will advise Customer in writing
of
the work performed or action taken. Customer will immediately
reimburse Peer 1 for all expenses reasonably incurred by Peer 1 associated
with any work or action performed by Peer 1 with respect
thereto.
|
3
|
17.
|
Relocation.
Customer will, at Peer 1’s expense, relocate the Equipment to other space
within the Premises upon Peer 1’s written request and within 15 days of
such request.
|
|
18.
|
Periodic
Inspections. Peer 1 reserves the right (upon reasonable
prior notice to Customer) to make periodic inspections of any part
of the
Customer Space or Equipment; provided that Customer will have the
right to
have one or more of its employees or representatives present during
any
such inspection.
|
|
19.
|
Insurance. Customer
will maintain, at Customer’s expense, during the Term of this Agreement
for the Premises (i) Comprehensive General Liability Insurance protecting
Peer 1 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, and (ii) Worker’s Compensation coverage in an amount not less than
that prescribed by statutory limits. Immediately upon
commencement of the Term and thereafter upon Peer 1’s request, Customer
will provide Peer 1 with certificates of insurance or other satisfactory
evidence that the insurance required in this Section has been
obtained. Under no circumstances will Peer 1 be obligated to
provide insurance coverage for any Customer Equipment in the
Premises.
|
|
20.
|
Access. Subject
to the terms of this Agreement and compliance with payment terms
under
Item 4.3, Customer will have unrestricted access to the Premises
during
the Term. Customer will cause its employees, agents,
contractors or invitees who have access to the Premises to conform
to all
Peer 1 rules and regulations (as amended by Peer 1 from time to
time). Failure to comply with the payment terms may result in
denial of access as set forth in Item
6.
|
|
21.
|
Co-location
facility Rules and Regulations. Peer
1 may vary these rules and regulations from time to time in its sole
discretion, and Customer will comply with all other reasonable security
requirements that Peer 1 may impose from time to time, provided that
Customer has been given 30 days notice in
writing.
|
|
21.1.
|
All
Customer employees, agents, contractors or invitees (“Customer Persons”)
having access to the Premises must be approved by Peer
1. Approval by Peer 1 does not release Customer from its
responsibilities pursuant to this Agreement, nor by approving such
Customer Persons does Peer 1 waive its right to be indemnified by
Customer.
|
|
21.2.
|
Customer
must provide Peer 1 with particulars, including a current photograph
of
each Customer Person, before that Customer Person is given access
to the
Premises
|
|
21.3.
|
No
more than three Customer Persons will be authorized to have access
to the
Premises at any time.
|
|
22.
|
Removal
of Equipment. Upon termination or expiration of the Term of
this Agreement, unless prohibited by Peer 1 as permitted by this
Agreement, Customer will remove the Equipment from the
Premises. Unless the Parties otherwise agree in writing, in the
event the Equipment has not been removed within 5 days following
the
termination or expiration, Peer 1 will have the right to remove,
relocate,
or otherwise store the Equipment at Customer’s expense without liability
to Customer. If after 30 days of such storage by Peer 1
Customer has not retrieved the Equipment and paid any indebtedness
owing
to Peer 1, then Peer 1 may exercise all the rights and remedies of
a
secured party under applicable law including, without limitation,
Peer 1
may sell the Equipment to third parties and use the proceeds of such
sale
to satisfy any such indebtedness as well as any costs (including
reasonable legal fees) incurred by Peer 1 in exercising any remedy
under
this Agreement.
|
|
23.
|
Security. As
continuing security for the obligations of Customer to Peer 1 as
set out
in this Agreement, Customer hereby grants to Peer 1 a security interest
in
the Equipment of Customer now located or hereafter located in the
Customer
Space and all proceeds therefrom in the event of a disposition thereof
in
accordance with the terms of this
Agreement.
|
|
24.
|
Ownership
of Equipment. Customer represents and warrants that it
either owns all Equipment or has all necessary rights to locate the
Equipment in the Premises.
|
|
25.
|
Consent
to Video Monitoring. Customer
acknowledges, agrees and hereby consents under applicable privacy
laws
that Peer 1 may monitor the Premises by way of closed circuit television
or other monitoring device for the purposes of maintaining the safety
and
security of the Premises, any equipment in the Premises, and any
persons
using or present in the Premises from time to
time.
|
BANDWIDTH
TERMS AND CONDITIONS
|
26.
|
Bandwidth
Services. Peer 1 will provide to Customer the Internet
Connectivity, IP Addresses and Internet Traffic services (collectively,
the “Bandwidth Services”), as specified in the Service Table (as amended
by the parties from time to time). Peer 1 will provide
Bandwidth Services in accordance with this Agreement, including the
Service Level Agreement contained herein. Customer will comply
(and will cause its clients to comply as if those clients were the
Customer) with the Acceptable Uses Policy (as amended by Peer 1 from
time
to time) contained herein. Peer 1 will have the right, but not
the obligation, without prior notice, to monitor online conduct and
communications, in order to verify compliance with this Agreement
and
applicable law. The security for transmissions made using the
Bandwidth Services is the responsibility of
Customer. Customer’s sole remedy for any interruption of
Bandwidth Services will be to receive refunds in accordance with
the
Service Level Agreement. Customer agrees to defend, indemnify
and hold harmless Peer 1, and its officers, directors and employees
(collectively, the “Indemnities”), from any and all liabilities, costs and
expenses, including reasonable legal fees, related to or arising
from any
action or claim by a third party against the Indemnities asserting
an
intellectual property right violation or any other third party claims
which concern Customer’s (or its clients’) use of the Bandwidth Services
(including without limitation transmission of any message, information,
software or other materials, or service
interruptions).
|
|
27.
|
IP
Addresses. Any IP Addresses allocated to Customer by Peer 1
must be maintained by Customer in an efficient manner as deemed by
ARIN
and utilized at 80% within 30 days of assignment by Peer 1 to
Customer. Failure to comply with this Section may result in the
revocation of IP Addresses by Peer 1 after five days notice to
Customer.
|
4
|
28.
|
Traffic
Billing.
|
|
28.1
|
For
purposes of billing traffic is measured as of the last day of each
month.
|
|
28.2
|
Traffic
is measured using MRTG.
|
|
28.3
|
Real-time
access to MRTG data is available via a Web
interface.
|
|
28.4
|
Traffic
data is captured on the Peer 1 switch associated with the customer
connection.
|
|
28.5
|
All
BGP customers will be charged based on the 95th
percentile
method.
|
TECHNICAL
SUPPORT AND SERVICES PRICING
|
Network
Operations Support (remote hands)
|
||
|
Network
Operations Support (8am – 5pm Mon – Fri)
|
$100.00/hour
|
billed
in 15 minute increments
|
|
Network
Operations Support (Outside Business Hours)
|
$200.00/hour
|
billed
in 15 minute increments
|
|
Network
Operations Support (remote hands)
|
|||
|
Tape
Back-up
|
$50.00/month
and $5.00/tape change during business hours
|
||
|
50.00/
tape change weekends/holidays non-business hours
|
|||
|
24
hr. systems monitoring
|
$100.00/month/IP
|
||
|
Primary
& secondary DNS
|
$50.00/year/domain
|
||
|
Domain
name changes
|
$10.00/domain
|
||
|
Other
|
|||
|
Additional
Access Cards (key included)
|
$50.00/card
|
||
ACCEPTABLE
USES POLICY (AUP)
Customer
agrees to use Bandwidth Services only for lawful purposes, in compliance with
all applicable law. Specific activities that are prohibited include,
but are not limited to:
|
·
|
Threatening
harm to persons or property or otherwise harassing
behavior.
|
|
·
|
Violating
Canadian export control laws for software or technical
information.
|
|
·
|
Misrepresenting
or fraudulently representing products/services using Customer’s
account.
|
|
·
|
Transmission,
distribution or storage of any material in violation of any applicable
law
or regulation.
|
|
·
|
Transmission,
distribution or storage of any material protected by copyright, trademark,
trade secret or other intellectual property right without proper
authorization, and material that is obscene, defamatory, an invasion
of
privacy or constitutes an illegal threat, or is otherwise
illegal.
|
|
·
|
Facilitating,
aiding, or encouraging any of the above activities, whether using
Peer 1’s
network or service by itself or via a third party’s network or
service.
|
|
·
|
Interference
with a third party’s use of Peer 1’s network or service, or ability to
connect to the Internet or provide services to Internet
users.
|
Email
Sending
unsolicited email messages, including, without limitation, commercial
advertising and informational announcements, is explicitly
prohibited. Customer will not use another site's mail server to relay
mail without the express permission of the site. It is strictly forbidden to
send out unsolicited email from any other network that advertises, promotes
or
in any way points to a location inside Peer 1 network. It is also
strictly forbidden to be involved in the distribution of tools designed for
the
aiding of Unsolicited Bulk Email(UBE). A customer’s connectivity may be
terminated without delay if the customer has been documented on a recognized
SPAM abuse list or if the customer has previously been denied access from
another provider due to AUP violations.
System
and Network Security
Customer
is prohibited from utilizing Peer 1 services to compromise the security or
tamper with system resources or accounts on computers at the Premises or at
any
third party site.
Specific
activities that are prohibited include, but are not limited to:
|
·
|
Use
or distribution of tools designed for compromising
security.
|
|
·
|
Unauthorized
access to or use of data, systems or networks, including any attempt
to
probe, scan or test the vulnerability of a system or network or to
breach
security or authentication measures without express authorization
of the
owner of the system or network.
|
|
·
|
Unauthorized
monitoring of data or traffic on any network or system without express
authorization of the owner of the system or
network.
|
|
·
|
Deliberate
attempts to overload a system and broadcast
attacks.
|
|
·
|
Forging
of any TCP-IP packet header or any part of the header information
in an
email or a newsgroup posting.
|
|
·
|
Intentionally
or negligently transmitting files containing a computer virus or
corrupted
data.
|
5
Violation
Peer
1,
in its sole discretion, will determine what action will be taken in response
to
a violation on a case-by-case basis. Violation of this AUP could also
subject Customer to criminal or civil liability. Peer 1 may block
access at the router level to Customer's Equipment involved. If Peer 1 believes,
in its sole discretion, that a violation of this AUP has occurred, such action
may also include, but is not limited to, temporary or permanent blocking of
access to Customer’s Equipment, and the suspension or termination of Customer’s
services under this Agreement. Peer 1 may involve and will also fully
cooperate with law enforcement authorities in investigating suspected
lawbreakers.
Peer
1
reserves the right to modify this AUP at any time without notice.
Customer
is responsible for all use of the Co-location Space and Bandwidth Services
by
itself, its employees, agents, contractors, invitees and clients, whether such
use is with or without the consent of Customer.
SERVICE
LEVEL AGREEMENT
Peer
1
Network has implemented a high-availability Internet Transit network
infrastructure, available within secure Co-location facilities. This has been
accomplished by the following:
|
1)
|
All
Customer connections make use of Cisco’s HSRP (hot standby router
protocol)
|
|
2)
|
Multiple
upstream providers
|
|
3)
|
Fully
redundant OCn
internal backbone
network
|
|
4)
|
All
network devices have onsite spares
|
|
5)
|
All
key network components are monitored
24x7
|
Service
Level Agreement Terms for Onsite Co-location Customers
Peer
1
will provide 100 % uninterrupted transit to the Internet to all co-location
customers who have purchased said service from Peer 1. Should transit
to the Internet become unavailable for a cumulative period up to one hour in
any
one calendar month, Customer will receive a refund equivalent to one day of
Customer’s pro-rated Recurring Monthly Fees for that month.
Customer
will receive an additional refund of one day of the pro-rated Internet
Connectivity Recurring Monthly Fees for each additional hour, or portion
thereof, of unavailability. All refund calculations will be based on
unavailability in one-hour increments. The above agreement does not
cover outages caused by equipment and/or events not under the direct control
of
Peer 1 or caused by individuals not directly employed by Peer 1. This Service
Level Agreement does not cover outages due to scheduled or emergency network
and/or facility maintenance, which will be broadcast to all customers in
advance, and will not exceed 20 minutes per month.
Any
and
all refunds to Customer will not exceed 50% of the Customer’s Recurring Monthly
Fees for the month in which the refund is paid.
Performance
Guarantee
Peer
1
will maintain its network in such a manner as to provide to all customers the
best possible performance to the Internet. In order to achieve this Peer 1
makes
the following guarantees to all onsite Internet customers:
|
·
|
100%
guaranteed uninterrupted transit to the
Internet
|
|
·
|
Zero
packet loss internal to Peer 1
network
|
In
addition to the above performance guarantees Peer 1 will take all possible
measures to insure all Customer traffic reaches its destination in a timely
fashion comparable and within reason to any other carrier in the area. These
measures include the manipulation of routing tables so as to direct traffic
to
the Internet using its best possible upstream link.
By
signing below, each party acknowledges that it has read, understands, and agrees
to the terms of this Co-location and Bandwidth Services Agreement.
Agreed
to by:
| PEER 1 NETWORK, INC. | CUSTOMER | |||
|
By:
|
By:
|
|||
|
(Signature)
|
(Signature)
|
|||
|
Xxxxxxxxx
Xxxxxxxxx
|
Xxxxxx
Xxxxxxxx
|
|||
| (Name typed or printed) | (Name typed or printed) | |||
| City Manager | General Manager - President | |||
| (Title) | (Title) | |||
| (Date) | (Date) |
6
SCHEDULE
"1"
SERVICE
TABLE
|
Company
Name:
|
TéliPhone
inc.
|
|||||
|
Address:
|
0000,
Xxxx xx Xxxxxx Xxxx xxxxx 0000 Xxxxxxxx, Xx X0X
0X0
|
|||||
|
General
Company Number:
|
000-000-0000
|
|||||
|
Fax
Number:
|
000-000-0000
|
|||||
|
Admin
Contact (Name/Email/Phone):
|
Xxxxxx
Xxxxxxxx / xxxxxxxxx@xxxxxxxxx.xx /
000-000-0000
|
|||||
|
Technical
Contact (Name/Email/Phone):
|
Xxxxxx
Xxxxxxxxx / xxxxxxxxxx@xxxxxxxxx.xx /
514-313-3432
|
|||||
|
Accounts
Payable Contact (Name/Email/Phone):
|
Xxxxxx
Xxxxxxxx / xxxxxxxxx@xxxxxxxxx.xx /
000-000-0000
|
|||||
|
Co-location
and Bandwidth Services
Includes:
1 x 100 Mb port, 2 access cards, 2 keys
Standard
Cages: UPS included; Custom Cages: UPS customer
supplied
|
|
Description
|
Qty
|
One-time Charges
|
Monthly Recurring
|
|||
|
Cage
Type
|
Custom cage 81s.f. + 2Mb
|
1
|
0.00$
|
2
670.00$
|
||
|
Bandwidth
commitment
|
||||||
|
Cross
Connect/Cable Pull
|
||||||
|
Power
|
||||||
|
Additional
Access Cards
|
||||||
|
Other
|
||||||
|
Subtotal:
GST:
PST:
TOTAL A:
|
0.00$
0.00$
0.00$
0.00$
|
Subtotal:
GST:
PST:
TOTAL B:
|
2
670.00$
186.90$
214.27$
3 071.17$
|
|||
|
Total A + Total B = first month’s payment due upon
signing of agreement
|
First month’s
payment: N/A
|
|||||
Premises:
0000 Xxxxxx Xxxx, Xxxxxxxx
Currency
: CAD
Term:
12 months
Invoice:
By email at xxxxxxxxx@xxxxxxxxx.xx
Customer’s
Scheduled Move-In Date (“Effective Date”):December 1st,
2005
Special
Instructions:
|
·
|
United
American Corp, Inc. is
responsible for this Co-location and Bandwidth Services Agreement
on the behalf of
TéliPhone inc (it’s
wholly owned
subsidiary),
and will take over the
responsibility of this Agreement in the event of TéliPhone inc.
not being
able to do
so.
|
BANDWIDTH
PRICING
Billing
Method: 95th
Percentile
|
Commitment
first 6
months
|
Committed
Traffic
|
Commit
Price
|
|
2
Mb traffic per month
|
Included
in monthly fee of 2 670$
|
|
Transfer
Rate in Mb
|
No
Commitment/BURST
|
|
2.01
– 25
|
$225/Mb
|
|
25.01
- 50
|
$200/
Mb
|
7
