EXHIBIT 10.9
INFLOW, INC.
DATA CENTER SERVICES AGREEMENT
This Data Center Services Agreement ("Agreement") is made and entered
into on this ___ day of ___________, 19__ ("Effective Date") by and between
InFlow, Inc., a Delaware corporation doing business in Colorado as InflowNet,
Inc. ("INFLOW") with a principal place of business at ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ #▇▇▇,
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ and _____________________, a ________________________________
corporation ("Customer") with a principal place of business at
___________________________________________________.
WHEREAS, INFLOW provides colocation services in the telecommunications
market at its data center located at ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇ ▇▇▇▇▇ (the "Data Center");
WHEREAS, INFLOW desires to provide Customer with, and Customer desires
to receive, services at the Data Center for Customer's telecommunications
equipment, as provided herein;
WHEREAS, Customer will be entitled to house telecommunications
equipment at a specific location within the Data Center, as provided herein;
WHEREAS, Exhibit A to this Agreement identifies the services that
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INFLOW will provide to Customer, subject to the terms of this Agreement;
WHEREAS, INFLOW and Customer may, from time to time after the date
hereof, execute one or more modifications of this Agreement, in the form
attached as Exhibit E, to change the services that INFLOW will provide to
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Customer (collectively, the "Service Change Forms");
NOW, THEREFORE, the parties hereto agree as follows:
1. SERVICES AND CUSTOMER EQUIPMENT. Subject to the terms and
conditions of this Agreement, during the term of this Agreement:
a. Data Center Services. INFLOW will provide to Customer the
services described in Exhibit A, as modified by any Service Change
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Forms (the "Data Center Services").
b. Customer Area. The "Customer Area" will mean the location
within the Data Center that INFLOW designates for placement of
Customer Equipment.
c. Customer Equipment. As part of the Data Center Services,
Customer will have a license to install, maintain, use, operate,
monitor, repair and replace in the Customer Area the equipment set
forth in Exhibit B (the "Customer Equipment"). Customer may not use
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the Customer Area for any other purpose. Customer has not been granted
any real property interest in the Customer Area or any other portion
of INFLOW's premises.
d. Service Change Forms. INFLOW and Customer may agree to execute
one or more Service Change Forms at any time and from time to time
after the date of this Agreement. Any such Service Change Forms shall
be incorporated into this Agreement and shall become a part hereof. In
the event of any discrepancies between this Agreement, any Service
Change Form and any subsequent Service Change Form, regarding the Data
Center Services or otherwise, the Service Change Form with the most
recent date shall control. Nothing in this paragraph or any other
provision of this Agreement shall obligate INFLOW or Customer to agree
to any Service Change Form. Each party shall have the absolute right
to refuse any proposal to change the terms of this Agreement as they
exist now or at any future time.
2. FEES AND BILLING. Customer will pay INFLOW all fees and charges set
forth below for the Data Center Services provided hereunder. All
payments required by this Agreement are exclusive of sales tax and
other federal, state, municipal or other governmental taxes now in
force or enacted in the future, all of which Customer will be
responsible for and will pay in full except for any federal or state
income taxes payable by INFLOW.
a. Installation Fees. Customer will pay all installation fees
identified in Exhibit A on the Installation Payment Date as set forth
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in Exhibit A or fifteen calendar days after any Customer Equipment has
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been placed within the Data Center, whichever date is earlier.
Customer shall pay all installation fees identified in any Service
Change Form within thirty (30) days of the date of invoice therefor,
or as otherwise agreed in such Service Change Form.
b. Usage Fees and Other Charges. Customer shall pay recurring
fees for Data Center Services from and after the earlier to occur of
(i) the "Installation Date" indicated in Exhibit A, regardless of
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whether Customer has commenced use of the Data Center Services, unless
Customer is unable to install the Customer Equipment by the
Installation Date due to a default by INFLOW, in which case billing
will not begin until the date INFLOW has remedied such default and
(ii) the date the Customer Equipment is placed in the Customer Area.
In the event that any Service Change Form specifies additional Data
Center Services, Customer will pay for such additional services from
and after the date INFLOW first provides such additional Data Center
Services to Customer or as otherwise agreed in such Service Change
Form.
c. Billing and Payment Terms. Customer will be billed monthly, in
arrears, for recurring fees for the provision of Data Center Services,
and payment of such fees and charges will be due within thirty (30)
days of the date of each INFLOW invoice. 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 1/2%) per month, or the highest rate
allowed by applicable law, whichever is lower. If Customer makes a
late payment hereunder or if in its judgement INFLOW determines that
Customer is not creditworthy or is otherwise not financially secure,
INFLOW will have the right, upon written notice to Customer, to
require full payment before the provision of Data Center Services or
other assurances to secure Customer's payment obligations hereunder.
3. RIGHTS AND OBLIGATIONS
a. Compliance with Law and Rules and Regulations. Customer will
comply at all times with all applicable laws and regulations with
respect to the Customer Equipment and Customer's use thereof. Customer
will also comply at all times with INFLOW's general rules and
regulations relating to its provision of Data Center Services, as
initially set forth in Exhibit D and as updated by INFLOW from time to
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time (the "Rules and Regulations"). Customer acknowledges that INFLOW
exercises no control whatsoever over the content of information
passing through the Customer Equipment and equipment and facilities
used by INFLOW to provide Data Center Services, and that it is the
sole responsibility of Customer to ensure that the information it
transmits and receives complies with all applicable laws and
regulations.
b. Customer's Costs. INFLOW will be responsible only for those
costs incurred by INFLOW to provide the Data Center Services pursuant
to this Agreement. Customer agrees that it will be solely responsible
for all costs and expenses that it incurs in connection with this
Agreement and the Customer Equipment.
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c. Access and Security. INFLOW will provide three (3) security
system badges to Customer for entry into the Data Center. INFLOW will
provide Customer with one (1) key for each of the Customer Cabinets
and will maintain a spare at the Data Center. Customer will give
written notice to INFLOW of the individuals who are authorized by
Customer to have access to the Customer Area (the "Permitted
Individuals"). INFLOW will maintain a list of the Permitted
Individuals and will have the right to limit Customer's access to the
Data Center solely to the Permitted Individuals. Subject to the terms
of this Agreement and the Rules and Regulations, the Permitted
Individuals will have access to the Customer Area at all times. While
in the Data Center, each individual representing or otherwise entering
for or on behalf of Customer (each, a "Representative") will comply at
all times with the terms of this Agreement and with all of the Rules
and Regulations. Without limiting the foregoing, each Representative
will comply with INFLOW's security and safety procedures, including
without limitation, sign-in, identification and escort requirements.
INFLOW may refuse entry to, or require the immediate departure of, any
individual who (i) is disorderly, (ii) has failed to comply with this
Agreement or the Rules and Regulations, or (iii) has failed to comply
with any of INFLOW's other procedures and requirements after being
notified of them.
d. No Competitive Services. Customer may not at any time permit
any Data Center Services to be utilized for the provision of any
services that compete with any INFLOW services, without INFLOW's prior
written consent.
e. Interconnection. Unless expressly authorized pursuant to the
prior written consent of INFLOW, Customer will not interconnect its
equipment with equipment or services of other entities within the Data
Center or another INFLOW data center.
f. Damage Prevention. Customer and its Representatives will
refrain from using any facilities, equipment, tools, materials,
apparatus, or methods that, in INFLOW's sole judgment, might cause
damage to the Data Center or otherwise interfere with INFLOW
operations or the equipment or operations of any other INFLOW
customer. INFLOW reserves the right to take any reasonable action to
prevent harm to the services, personnel or property of INFLOW (and its
affiliates, vendors, and customers).
g. Safeguarding of Tools. Customer's Representatives may bring
small tools and portable test equipment into the Data Center provided
that they remove the same upon their departure from the Data Center.
Customer will be responsible for the care and safeguarding of all such
tools and test equipment. Customer's Representatives may not bring any
other equipment, material, or apparatus into the Data Center without
INFLOW's prior written consent. In particular, and without limiting
the foregoing, Customer's Representatives may not bring into the Data
Center any of the following: wet cell batteries, explosives, flammable
liquids or gases, alcohol, controlled substances, weapons, cameras,
and similar equipment and materials.
h. Inspection. INFLOW and its designees may inspect or observe
Customer's equipment (including, but not limited to, the Customer
Equipment) at any time. If the Customer Equipment is in a security
enclosure, Customer will furnish INFLOW with the appropriate keys or
information needed to enter the enclosure.
i. Security Procedures. INFLOW will (i) establish security
procedures which it determines are appropriate and cost effective to
monitor and control access to the Data Center, and (ii) make
reasonable efforts to enforce such procedures.
j. Temperature. INFLOW will (i) monitor the temperature in the
Data Center at reasonable intervals, and (ii) undertake such measures
as it determines are appropriate and cost-effective to generally
maintain a temperature in the Data Center of no more than seventy (70)
degrees Fahrenheit.
4. INSURANCE
a. Minimum Levels of Customer's Insurance. During the term of
this Agreement, Customer will keep in full force and effect: (i)
comprehensive general liability insurance in an amount not less than
one million dollars ($1,000,000) per occurrence for bodily injury and
property damage; (ii) employer's liability insurance; (iii) workers'
compensation insurance in an amount not less than that required by
applicable law; and (iv) all risk casualty insurance covering the
Customer Equipment in the amount of its full replacement value.
Customer also agrees that it will maintain, and will be solely
responsible for ensuring that its agents (including contractors and
subcontractors) maintain, other insurance at levels no less than those
required by applicable law and customary in Customer's and its agents'
industries. Each policy must contain a provision that the insurance
policy, and the coverage that it provides, will be primary and
noncontributing with respect to any policies carried by INFLOW.
b. Minimum Levels of INFLOW's Insurance. During the term of this
Agreement, INFLOW will keep in full force and effect: (i)
comprehensive general liability insurance in an amount not less than
one million dollars ($1,000,000) per occurrence for bodily injury and
property damage; (ii) employer's liability insurance; (iii) workers'
compensation insurance in an amount not less than that required by
applicable law; and (iv) all risk casualty insurance covering INFLOW's
personal property and premises in the building in the amount of its
full replacement value.
c. Naming INFLOW as an Additional Insured. Customer agrees that
prior to the installation of any Customer Equipment, Customer will
cause its insurance provider(s) to name INFLOW as an additional
insured and notify INFLOW in writing of the effective date thereof
d. Evidence of Insurance. Prior to installation of any Customer
Equipment in the Customer Area, Customer will furnish INFLOW with
certificates of insurance which evidence the minimum levels of
insurance set forth above. Customer will provide INFLOW at least
thirty (30) days advance written notice of any termination,
cancellation, or material change in coverage.
e. Acceptable Insurance Companies. All of the insurance required
in this Agreement will be issued by responsible insurance companies
authorized to issue insurance in Colorado rated B VII or higher by
Best's Insurance Rating Service, or an equivalent rating if Best's
rating system is changed or discontinued.
f. Waiver of Right of Recovery; Waiver of Subrogation. Neither
party, nor its officers, directors, shareholders, employees, agents or
invitees, will be liable to the other party or to any insurance
company insuring the other party (by way of subrogation or otherwise)
for any loss or damage to its equipment or property within the Data
Center, or for loss of business revenue or extra expense arising out
of or related to its equipment or property within the Data Center. The
foregoing waiver applies to the extent the loss or damage is covered
by: (i) the injured party's insurance; or (ii) the insurance the
injured party is required to carry under this Agreement, whichever is
greater.
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5. CONFIDENTIAL INFORMATION
a. Confidential Information. Each party acknowledges that it may
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 and subject to the confidentiality
provision hereof), any of the other party's Confidential Information
and will take reasonable precautions to protect the confidentiality of
such information.
b. Exceptions. Information will not be deemed Confidential
Information hereunder if such information: (i) is rightfully 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.
6. REPRESENTATIONS AND WARRANTIES
a. Warranties by Customer
i. Customer Equipment. Customer represents and warrants that
it owns or has the legal right and authority, and will continue
to own or maintain the legal right and authority during the term
of this Agreement, to place and use the Customer Equipment as
contemplated by this Agreement. ii. Customer's Business. Customer
represents and warrants that Customer's services, products,
materials, data, information and Customer Equipment used by
Customer in connection with this Agreement as well as Customer's
and its permitted customers' and users' use of the Data Center
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 law or
regulation.
iii. Rules and Regulations. Customer has read the Rules and
Regulations and represents and warrants that Customer and
Customer's Business are currently in full compliance with the
Rules and Regulations, and will remain so at all times during the
term of this Agreement.
b. Warranties and Disclaimers by INFLOW
i. Service Level Warranty. INFLOW's warranty for providing
Data Center Services to Customer is set forth in Exhibit C.
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INFLOW's maintenance of the Data Center and Data Center Services,
as described in paragraph 18 of the Rules and Regulations, will
not be deemed to be a failure of INFLOW to provide Data Center
Services under the warranty in Exhibit C. The warranty in Exhibit
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C does not apply to any Data Center Services that expressly
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exclude such warranty. Exhibit C sets forth Customer's sole and
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exclusive remedy for any failure by INFLOW to provide Data Center
Services.
ii. No Other Warranty. EXCEPT FOR ANY EXPRESS WARRANTY SET
FORTH IN EXHIBIT C, THE DATA CENTER SERVICES ARE PROVIDED ON AN
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"AS IS" BASIS, AND CUSTOMER'S USE OF THE DATA CENTER SERVICES IS
AT ITS OWN RISK. INFLOW DOES NOT MAKE, AND HEREBY DISCLAIMS, ANY
AND ALL OTHER EXPRESS AND/OR IMPLIED WARRANTIES, INCLUDING, BUT
NOT LIMITED TO, WARRANTIES OF MERCHANTABILITY, FITNESS FOR A
PARTICULAR PURPOSE, NONINFRINGEMENT AND TITLE, AND ANY WARRANTIES
ARISING FROM A COURSE OF DEALING, USAGE, OR TRADE PRACTICE.
WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, INFLOW DOES NOT
WARRANT THAT THE DATA CENTER SERVICES WILL BE UNINTERRUPTED,
ERROR-FREE, OR SECURE.
iii. Actions of Third Party. Without limiting the foregoing
disclaimer, Customer specifically acknowledges that INFLOW's
network services beyond its Data Center premises are provided or
controlled by third parties. At times, actions or inactions
caused by these third parties can produce situations in which
INFLOW's customers' connections to telecommunication networks (or
portions thereof) may be impaired or disrupted. Although INFLOW
will use commercially reasonable efforts to take any actions it
deems appropriate to remedy and avoid such events, INFLOW cannot
guarantee that they will not occur. Accordingly, so long as
INFLOW acts in a commercially reasonable manner as described
above, INFLOW will have no liability whatsoever resulting from or
related to such events.
7. LIMITATIONS OF LIABILITY
a. Personal Injury. Each Representative visiting the Data Center
does so at its own risk and INFLOW will have no liability whatsoever
for any harm to such persons resulting from any cause other than
INFLOW's gross negligence or willful misconduct resulting in personal
injury to such persons during such a visit.
b. Damage to Customer Equipment or Business. INFLOW will have no
liability for any damage to, or loss relating to, the Customer
Equipment or Customer's Business resulting from any cause whatsoever.
c. Exclusions. Except as specified in Sections 7(a) and 7(b)
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above, in no event will INFLOW be liable to Customer, any
Representative, or any third party for any claims arising out of or
related to this Agreement, Customer Equipment, Customer's Business or
otherwise, and any lost revenue, lost profits, replacement goods, loss
of technology, rights or services, incidental, punitive, indirect or
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consequential damages, loss of data, or interruption of loss of use of
service or of any Customer Equipment or Customer's Business, even if
advised of the possibility of such damages, whether under theory of
contract, tort (including negligence), strict liability or otherwise.
d. Customer's Insurance. Customer agrees that it and its
Representatives will not pursue any claims against INFLOW for any
liability INFLOW may have under or relating to this Agreement until
Customer first makes claims against Customer's insurance provider(s)
and such insurance provider(s) finally resolve(s) such claims.
Customer waives its right of recovery against INFLOW (and waives the
subrogation right of its insurance provider(s)) to the extent such
claims are covered by (i) Customer's insurance, or (ii) the insurance
Customer is required to carry under this Agreement, whichever is
greater.
e. Basis of the Bargain; Failure of Essential Purpose. Customer
acknowledges that INFLOW has set its prices and entered into this
Agreement in reliance upon the limitations of liability and the
disclaimers of warranties and limitations on damages set forth in this
Agreement, and that the same form an essential basis of the bargain
between the parties. The parties agree that the limitations and
exclusions of liability and disclaimers specified in this Agreement
will survive and apply even if found to have failed of their essential
purpose.
8. INDEMNIFICATION.
a. INFLOW's Indemnification of Customer. INFLOW will indemnify,
defend and hold Customer harmless from and against any and all costs,
liabilities, losses, damages and expenses (including, but not limited
to, reasonable attorneys' fees) (collectively, "Losses") resulting
from any claim, suit, action, or proceeding (each, an "Action")
brought against Customer alleging (i) the infringement of any third
party registered U.S. copyright or issued U.S. patent resulting from
the provision of Data Center Services pursuant to this Agreement (but
excluding any infringement contributorily caused by Customer's
Business or Customer Equipment) and (ii) personal injury to a
Representative from INFLOW's gross negligence or willful misconduct.
b. Customer's Indemnification of INFLOW. Customer will indemnify,
defend and hold INFLOW, its affiliates and customers harmless from and
against any and all Losses suffered by, or resulting from or arising
out of any Action brought by or against, INFLOW, its affiliates or
customers alleging: (i) with respect to the Customer's Business; (A)
infringement or misappropriation of any intellectual property rights;
(B) defamation, libel, slander, obscenity, pornography, or violation
of the rights of privacy or publicity; or (C) spamming, or any other
offensive, harassing or illegal conduct; (ii) any damage or
destruction to the Customer Area, the Data Center or the equipment of
INFLOW or any other customer by the Customer Equipment, any
Representative, or any other action or inaction of Customer; (iii) any
other damage arising from the Customer Equipment or Customer's
Business; (iv) any violation of law or regulation by Customer or its
Representatives; or (v) any violation of this Agreement or the Rules
and Regulations by Customer or its Representatives.
c. Notice. Each party will provide the other party prompt written
notice of the existence of any such event of which and when it becomes
aware, and an opportunity to participate in the defense thereof.
9. TERM. The term of this Agreement will commence on the Effective
Date and continue for an initial term of _______ (__) year(s) from the
Effective Date unless modified by a Service Change Form. At the
expiration of this initial term, this Agreement will automatically
renew for successive terms of one (1) year subject to Customer's
acceptance of INFLOW's then current fees, unless notice of non-renewal
is given by either party no less than ninety (90) days before
expiration of the term. Customer will be deemed to have accepted
INFLOW's then current fees for any successive term unless Customer
gives notice to INFLOW of its rejection of any increase in fees no
later than ten (10) days after Customer receives notice thereof.
10. DEFAULT AND REMEDIES.
a. Default by INFLOW. The occurrence of any of the following will
be a "Default" by INFLOW: (i) INFLOW fails to perform or observe any
of its obligations under this Agreement after a period of thirty (30)
days after receiving notice from Customer of such failure; or (ii)
INFLOW's insolvency or liquidation as a result of which INFLOW ceases
to do business for a continuous period of at least one (1) month.
b. Default by Customer. The occurrence of any of the following
will be a "Default" by Customer: (i) Customer fails to pay, when due,
any fees or charges owing to INFLOW under this Agreement; or (ii)
Customer fails to perform or observe its obligations under any of the
following provisions of this Agreement: Section 3(c) (Access and
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Security), Section 3(d) (No Competitive Services), Section 3(e)
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(Interconnection), Section 3(f) (Damage Prevention); Section 5(a)
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(Confidential Information); or (iii) Customer breaches any
representation or warranty made by Customer in this Agreement; or (iv)
Customer fails to perform or observe any of its other obligations
under this Agreement after a period of thirty (30) days after
receiving notice from INFLOW of such failure; or (v) Customer's
insolvency or liquidation as a result of which Customer ceases to do
business for a continuous period of at least one (1) month.
c. Customer's Remedies for Default by INFLOW. If INFLOW commits a
Default, Customer will be entitled, at its election, to terminate this
Agreement or seek any available remedies at law or in equity.
Customer's right of recovery for any such Default will be limited as
elsewhere provided in this Agreement, including, without limitation,
Section 7 and Exhibit C. Notwithstanding anything to the contrary in
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this Agreement, INFLOW's maximum aggregate liability to Customer
related to or in connection with this Agreement will be limited to the
total amount paid by Customer to INFLOW hereunder for the prior twelve
(12) month period.
d. INFLOW's Remedies for Default by Customer. If Customer commits
a Default, INFLOW will be entitled, at its election, to exercise any
one or more of the following remedies, then or at any time thereafter:
(i) to exercise any remedy for such Default set forth elsewhere in
this Agreement; (ii) to pursue any remedy available at law or in
equity, (iii) to terminate this Agreement; (iv) to suspend Data Center
Services; and (v) to remove any or all of the Customer Equipment and
any other property of Customer to the extent reasonably necessary to
ensure compliance with any law or regulation or to prevent harm to the
business or equipment of INFLOW or any of its customers.
11. OTHER PROVISIONS.
a. Non-Assignment. Customer will not be permitted to assign this
agreement in whole or in part without INFLOW's prior written consent,
which will not be unreasonably withheld. Any
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assignment in violation of the foregoing restriction will be null and
void. Except as restricted above, this Agreement will be binding upon,
and inure to the benefit of, the parties hereto and their respective
successors and assigns.
b. Independent Contractors. The parties will have the status of
independent contractors, and nothing in this Agreement will be deemed
to place the parties in the relationship of employer-employee,
principal-agent, or partners or in a joint venture.
c. Non-Waiver. Failure of either party to enforce any of its
rights hereunder will not be deemed to constitute a waiver of its
future enforcement of such rights or any other rights.
d. Severability. If any provision of this Agreement is held to be
invalid, illegal, or unenforceable under present or future laws, such
item will be struck from the Agreement; however, such invalidity or
enforceability will not affect the remaining provisions or conditions
of this Agreement. The parties will remain legally bound by the
remaining terms of this Agreement, and will strive to reform the
Agreement in a manner consistent with the original intent of the
parties.
e. Force Majeure. Either party will be excused from any delay or
failure in performance hereunder caused by reason of any occurrence or
contingency beyond its reasonable control, including but not limited
to, acts of God, earthquake, labor disputes and strikes, riots, war,
and governmental requirements. The obligations and rights of the party
so excused will be extended on a day-to-day basis for the period of
time equal to that of the underlying cause of the delay.
f. Governing Law; Jurisdiction. This Agreement will be
interpreted and enforced according to the laws of the State of
Colorado. INFLOW and Customer hereby consent and submit to the
personal jurisdiction of the State and federal courts of the State of
Colorado.
g. Integration. This Agreement expresses the complete and final
understanding of the parties with respect to the subject matter
hereof, and supersedes all prior communications between the parties,
whether written or oral with respect to the subject matter hereof. No
modification of this Agreement will be binding upon the parties
hereto, unless evidenced by a writing duly signed by authorized
representatives of the respective parties hereto.
h. Exhibits Incorporated. All Exhibits to this Agreement are
incorporated herein and made a part hereof as if fully set forth
herein.
i. Notices. All notices or other instruments or communications
provided for under this Agreement will be in writing, signed by the
party giving the same, and will be deemed properly given and received
(i) on the next business day after deposit for overnight delivery by
an overnight courier service such as Federal Express or (ii) three (3)
business days after mailing, by registered or certified mail, return
receipt requested. All such notices or other instruments will be
furnished with delivery or postage charges prepaid addressed to the
party at the address set forth below or such other address as such
party may designate by notice to the other party.
If to INFLOW:
General Manager
INFLOW Inc.
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with a copy to:
Legal Department
INFLOW, Inc.
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If to Customer:
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AGREED AND ACCEPTED AS OF THE DATE SET FORTH
ABOVE:
CUSTOMER:
__________________, a ____________ corporation
By:
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(Authorized Signature)
Name:
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Title:
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Date:
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INFLOW:
InFlow, Inc., a Delaware corporation d/b/a InflowNet, Inc.
By:
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(Authorized Signature)
Name:
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Title:
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Date:
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EXHIBIT A
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Initial SERVICES PROVIDED AND FEE SCHEDULE
Data Center Services
The "Installation Date" will be _____________________. The "Installation Payment
Date" will be _____________.
INFLOW will provide the following services:
1. Datacenter Space.
a. Cabinets. INFLOW will provide Customer _____ (__) cabinets to
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accommodate their equipment (the "Customer Cabinets") in
accordance with this Agreement and the Rules and Regulations.
Each cabinet shall be 84 inches high, contain up to three (3)
fixed shelves, one (1) rolling shelf, front and rear-locking
perforated doors, and one (I) eleven (11) port surge-protected
power strip. In conjunction with Customer's Representatives,
INFLOW will install the Customer Equipment in the Customer
Cabinets and connect such Customer Equipment to building ground,
electrical power circuits and telephony cabling in support of
Customer's use of Data Center Services. Customer will ensure that
the Customer Equipment will not place a load upon the floor of
the Data Center that exceeds one hundred (100) pounds per square
foot
b. Right of First Refusal. Customer will have a right of first
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refusal for the ______ (__) additional cabinet locations that are
numbered _______________________________ according to INFLOW's
numbering scheme for the Data Center. Customer's right of first
refusal for each cabinet location will be for a term of twelve
(12) months. If INFLOW desires to make available to another
customer a cabinet location subject to Customer's right of first
refusal, INFLOW will notify Customer of such desire in writing.
If Customer chooses to exercise its right of first refusal for
such cabinet location, Customer will give written notice to
INFLOW within ten (10) business days after Customer's receipt of
INFLOW's notice. Customer will immediately thereafter become
obligated for full payment for such cabinet location, at the same
price as Customer then pays for its other cabinet locations under
this Agreement. If Customer does not notify INFLOW within the
time period required above, then Customer's right of first
refusal for such cabinet location will terminate and INFLOW will
have no further obligation whatsoever to Customer with respect
thereto.
2. Network Circuits. Based upon Customer's written instructions, INFLOW will
take the following actions to install Customer network circuits: (1)
Provide data cable connections from the Customer Cabinets to the ingress
point within the Data Center of_____________________________ ("Customer's
Designated Carrier(s)"); (2) Submit network circuit order to Customer's
Designated Carrier(s); (3) Confirm Customer's Designated Carrier's order
number and scheduled installation date; (4) Coordinate circuit installation
by Customer's Designated Carrier; (5) Confirm circuit operation by
end-to-end or other testing procedures as may be appropriate; (6) Accept
network circuit from Customer's Designated Carrier upon approval of
Customer; and (7) Coordinate equipment (CS U, DSU, multiplexer, router,
etc) installation necessary for network circuit installation.
Based upon Customer's written instructions, INFLOW will monitor Customer
network circuits for faults, notify Customer in the event of the detection
of a fault and assist in troubleshooting fault and restoring service.
a. Network: Local Service(s). INFLOW will provide ______ (__)
-------------------------
[Carrier] DS-[#] local access circuit(s) for Customer
application.
b. Network: Private Line(s). INFLOW will provide _____ (__)[Carrier]
------------------------
DS-[#] point-to-point circuit(s) between Customer's cabinet and
Customer's facility located at___________________________.
c. Network: Internet Service(s). INFLOW will provide____() [#]
----------------------------
[M/kbps] Internet circuit(s) for Customer application. Customer
shall at all times adhere to the Acceptable Use Policy located at
[URL] as amended from time to time effective upon posting of the
revised policy at the URL. Notwithstanding anything to the
contrary contained herein, INFLOW may immediately take corrective
action, including disconnection or discontinuance of Internet
Services in the event of notice of possible violation by Customer
of the Acceptable Use Policy
d. Network: Modem/Phone Circuit(s). INFLOW will provide ___ ()analog
-------------------------------
modem/phone circuits for Customer application.
e. Interconnection. INFLOW will provide data cable connections from
---------------
Customer equipment to [Carrier] termination point within the Data
Center as directed by Customer for direct billing by Carrier.
f. Network Interface(s). INFLOW will provide ______ (__)DS-[#]
--------------------
CSU-DSU(s) for Customer application.
Page 6
3. Power Circuits.
a. A/C Power Circuit(s). INFLOW will provide one 20 ampere (UPS and
--------------------
generator-protected) A/C electrical circuit with two (2) female
receptacles for each Customer Cabinet.
b. B-Side A/C Power Circuit(s). INFLOW will provide _______(_) 20
---------------------------
ampere B-side (LIPS and generator-protected) A/C electrical
circuit(s) with two (2) female receptacles each for Customer
application.
c. D/C Power Circuit(s). INFLOW will provide _______(_)______ ampere
--------------------
(UPS and generator-protected) D/C electrical circuit(s) with one
(1) female receptacle each for Customer application.
d. B-Side D/C Power Circuit(s). INFLOW will provide ______(_)_____
---------------------------
ampere B-side (UPS and generator-protected) D/C electrical
circuit (s) with one (1) female receptacle each for Customer
application.
4. Technical Support Services.
a. Application Monitoring. Based upon Customer's written
----------------------
instructions, INFLOW will monitor (__) Customer application test
points. INFLOW will (1) Verify DNS server operation, (2) Verify
FTP server operation, (3) Verify Mail server operation, (4)
verify News server operation, (5) Ping a network device, (6)
Verify connection to a service on a port, (7) Verify retrieval of
a web page, and/or (8) Verify a web page transaction in order to
monitor Customer application performance. INFLOW will notify the
Customer by telephone, email or page of a failed test condition.
b. NT Server Monitoring. Based upon Customer's written instructions,
--------------------
INFLOW will monitor (__) Customer NT Servers. INFLOW will monitor
(1) Percentage CPU utilization, (2) Disk space utilization, (3)
Virtual memory utilization, (4) Process status, and/or (5) Web
server load for each NT server. INFLOW will notify the Customer
by telephone, email or page of a failed test condition.
c. UNIX Server Monitoring. Based upon Customer's written
----------------------
instructions, INFLOW will monitor ____ (__) Customer Unix
Servers. INFLOW will monitor (1) Percentage CPU utilization, (2)
Disk space utilization, (3) Virtual memory utilization, (4)
Process status, and/or (5) Web server load for each Unix server.
INFLOW will notify the Customer by telephone, email or page of a
failed test condition.
d. Managed Firewall Service. Based on Customer's approved security
------------------------
policy, INFLOW will manage and monitor ______ () Checkpoint
FireWall-l implementations. INFLOW will manage software updates
and patches for the firewall and its host operating system,
continuously monitor the firewall implementations and respond to
security incidents in accordance with INFLOW's standard response
procedures. This service includes Checkpoint FireWall- I and
operating system software, host platform hardware and twenty (20)
hours of security policy development consulting.
e. Technical Support. Based upon Customer's written instructions,
-----------------
INFLOW will provide first-level maintenance of Customer Equipment
including: monitoring for faults, replacement of faulty plug-in
type cards using spares provided by Customer, power-cycling of
equipment, and fault isolation, logging and Customer notification
based on pre-defined plans.
Page 7
Fees and Charges. Fees for Data Center Services provided to Customer are
identified below. Recurring fees are indicated for a calendar month of service.
-----------------------------------------------------------------------------------------------------------------------------------
Services Installation Fee Usage Fee
===================================================================================================================================
S l.a. Cabinet Space (19") $1,000 per cabinet. $1,000 per cabinet.
p
a Cabinet Space (23") $1,000 per cabinet. $1,100 per cabinet.
c ------------------------------------------------------------------------------------------------------------------------------
e 1.b. Right of First Refusal N/A $200 per cabinet location.
===================================================================================================================================
2.a. Local Service [Based on Customer Designated Configuration] [Based on Customer Designated Configuration]
N ------------------------------------------------------------------------------------------------------------------------------
e 2.b. Private Line(s) [Based on Customer Designated Configuration] [Based on Customer Designated Configuration]
t ------------------------------------------------------------------------------------------------------------------------------
w 2.c. Internet Service(s) [Based on Customer Designated Configuration] [Based on Customer Designated Configuration]
o ------------------------------------------------------------------------------------------------------------------------------
r 2.d. Modem/Phone Circuit(s) $0 per analog modem circuit. $50 per analog modem circuit.
k ------------------------------------------------------------------------------------------------------------------------------
2.e. Interconnection $0 per cable. $40 per cable to non-zero-mile POP.
C
i $100 per cable to zero-mile POP for 0-1.5
r Mbps connection.
c
u $500 per cable to zero-mile POP for 1.5+
i Mbps connection.
t ------------------------------------------------------------------------------------------------------------------------------
s 2.f. Network Interface(s) [Based on Customer Designated Configuration] [Based on Customer Designated Configuration]
===================================================================================================================================
P C 3.a. A/C Power Circuit(s) $100 per 20-Ampere A/C circuit. $15 per A/C ampere based on running amperes.
o i ------------------------------------------------------------------------------------------------------------------------------
w r 3.b. B-Side A/C Power Circuit(s) $100 per 20-Ampere A/C circuit. $30 per 20-Ampere circuit.
e c ------------------------------------------------------------------------------------------------------------------------------
r u 3.c. D/C Power Circuit(s) $400 per 20-Ampere D/C circuit. $20 per D/C ampere based on running amperes.
i ------------------------------------------------------------------------------------------------------------------------------
t 3.d. B-Side D/C Power Circuit(s) $400 per 20-Ampere D/C circuit. $40 per 20-Ampere circuit.
s
===================================================================================================================================
T S 4.a. Application Monitoring $35 per 1-5 test points. $35 per 1-5 test points.
e u ------------------------------------------------------------------------------------------------------------------------------
c p 4.b. NT Server Monitoring $100 per server. $55 per server.
h p ------------------------------------------------------------------------------------------------------------------------------
n o 4.c. UNIX Server Monitoring $200 per server. $65 per server.
i r ------------------------------------------------------------------------------------------------------------------------------
c t 4.d. Managed Firewall Service $4,000 per firewall implementation. $2,500 per firewall implementation.
a ------------------------------------------------------------------------------------------------------------------------------
l S 4.e. Technical Support (Tier 1) N/A $100 per man-hour in 15 minute increments.
e
r
v
i
c
e
s
-----------------------------------------------------------------------------------------------------------------------------------
Page 8
EXHIBIT B
---------
CUSTOMER EQUIPMENT
The "Customer Equipment" permitted in the Customer Area is as follows. Customer
shall be allowed to place additional equipment in the Customer Area with the
prior approval of INFLOW.
[Insert Equipment Description Here]
Page 9
EXHIBIT C
---------
SERVICE LEVEL AGREEMENT
INFLOW's Service Level Agreement defines the performance criteria to which
INFLOW will be held accountable, reporting methods and compensation in the event
that performance levels are not met.
On-Time Provisioning
--------------------
Performance Criteria: All electrical and network connections for Customer's
operations will be installed no later than the installation date and for Service
Change Forms no later than 30 calendar days after the date the Service Change
Form is signed by Customer.. Customer must have the network and power interface
equipment supporting its equipment properly installed and functioning no later
than the installation date. If Customer fails to meet such deadline, the
deadline for INFLOW's performance under this paragraph will be extended until
the date which is seven calendar days after Customer gives notice to INFLOW that
its network and power interface equipment supporting its equipment is properly
installed and functioning. Network provisioning service levels are only
applicable if Customer purchases network connections through INFLOW.
Reporting Methods: INFLOW tracks the installation time within the Customer
implementation schedule.
Compensation: In the event that INFLOW fails to meet the due date for
provisioning, INFLOW will credit Customer's ▇▇▇▇ in an amount equal to the
cabinet or network installation charges affected.
Network Availability
--------------------
Performance Criteria: The Customer's network connections from the cabinet
interface to network carrier ingress point will be available 99.9% of the time
each month. This service level does apply to INFLOW owned/provided equipment
used to multiplex Customer's network connections. This service level does not
apply to Customer owned/provided equipment in a cabinet or to network
connections that are not made through INFLOW's cross connect switch.
Reporting Methods: INFLOW will provide to Customer a report showing the start
time, stop time and duration of network outages no later than 15 calendar days
after the end of each month. The network availability rate will be calculated
based on dividing the total amount of time without network outages by the total
amount of time in the month.
Compensation: In the event that INFLOW fails to meet the network availability
service level, INFLOW will credit Customer's ▇▇▇▇ in the amount equal to one
month of INFLOW's network charge to the Customer for the circuit(s) involved.
Power Availability
------------------
Performance Criteria: Power will be continuously available 100% of the time to
Customer's cabinet interface each month. This service level does not apply to
Customer owned/provided equipment in a cabinet.
Reporting Methods: INFLOW will provide to Customer a report showing the start
time, stop time and duration of power outages no later than 15 calendar days
after the end of each month. The power availability rate will be calculated
based on dividing the total amount of time without power outages by the total
amount of time in the month.
Compensation: In the event that INFLOW fails to meet the power availability
service level, INFLOW will credit Customer's ▇▇▇▇ in the amount equal to 100% of
one month's power usage (amperage) charge for the cabinet(s) involved.
Network Time to Restore
-----------------------
Performance Criteria: All network problems reported by Customer on average will
be cleared within 4 hours. This service level does not apply to Customer
owned/provided equipment in a cabinet or to network connections that are not
made through INFLOW's cross connect switch.
Reporting Methods: INFLOW will provide to Customer a report showing the start
time and restoration time for all network trouble tickets initiated during a
service month no later than 15 calendar days after the end of that month. A
simple mathematical average will be calculated for the durations of all trouble
tickets.
Compensation: In the event that INFLOW fails to meet the network availability
service level, INFLOW will credit Customer's ▇▇▇▇ in the amount equal to one
month of INFLOW's network charge to the Customer for the circuit(s) involved.
Additional Conditions
---------------------
[Based on Customer Requirements]
Page 10
EXHIBIT D
---------
RULES AND REGULATIONS
GENERAL RULES AND REGULATIONS
1. All INFLOW Customers and their representatives, employees, contractors,
agents and users of Customers' facilities are subject to these Rules and
Regulations in connection with their use of INFLOW Data Center Services.
2. All equipment installation activities must be approved by INFLOW.
3. Customer representatives shall not approach, handle, use, inspect or
examine in any way any other equipment but their own.
4. Customer's use of the Data Center and the building in which it is located
shall at all times comply with the rules and regulations promulgated by the
owner of such building from time to time, a copy of which may be obtained
from INFLOW.
5. Customer representatives shall not disclose the identity of any INFLOW
clients.
6. The Data Center shall be kept neat and orderly at all times. Customer
representatives shall remove all trash and debris upon departure from the
Data Center. INFLOW shall have the right to remove and discard any trash
and debris left in the Data Center in violation of the foregoing.
7. At conclusion of work being done in the Data Center, Customer shall ensure
all cables are routed and dressed neatly in cabinets and all doors are
closed and locked.
8. Use of freight elevator is available for large equipment delivery only with
prior INFLOW approval.
9. Dollies and carts are available for use with prior INFLOW approval.
10. Customer Equipment must be configured and run at all times in compliance
with the manufacturer's specifications, including power outlet, power
consumption and clearance requirements.
11. No sign, advertisement, notice or object shall be displayed by a Customer
in or on the exterior of the Data Center walls, doors, ceilings, or racks
without INFLOW's prior approval.
12. No Customer, nor any of Customer's representatives or visitors, shall at
any time bring into or keep upon the Data Center premises any hazardous,
inflammable, combustible, explosive or otherwise dangerous fluid, chemical
or substance at any time.
13. No acids, vapors or other materials shall be discharged or permitted to be
discharged into the waste lines, vents or flues of the Data Center.
14. Customer may not bring, or make use of, any of the following into the
facility:
food or drink, tobacco products, explosives, weapons, chemicals, illegal
drugs, alcohol or other intoxicants, electro-magnetic devices, radioactive
materials, photographic or recording equipment of any kind (other than tape
back-up equipment).
15. INFLOW reserves the right to inspect all objects to be brought into or
taken out of the Data Center and to exclude from the Data Center all
objects which violate any of these Rules and Regulations. INFLOW may
require any person entering or leaving the Data Center with any package
document the contents of the said package.
16. All connections to and from Customer's equipment must be clearly labeled.
Customers may use INFLOW's labeling code or choose to use their own code.
All Customer labeling codes must be provided to INFLOW for purposes of
configuration control.
17. Periodically, INFLOW will conduct routine scheduled maintenance of its Data
Center and Data Center Services. INFLOW shall notify Customers a minimum
of 15 calendar days in advance of said maintenance. Customer agrees to
cooperate with INFLOW during the scheduled maintenance so that INFLOW
minimizes Customer impact.
ACCESS AND SECURITY
18. Only those individuals specifically identified by Customer on the
authorized personnel list maintained by INFLOW may access the Data Center.
19. Customer will notify INFLOW in writing of any change in Customer's
representatives.
Page 11
20. Customer representatives shall stay in the vicinity of their own equipment
when in the INFLOW facility.
21. All visitors who do not have badges are required to sign the access log
located in the NOC upon entry and exit.
22. "Tailgating" is prohibited. Tailgating is the act of following a badged
individual into the Data Center without swiping the badge for access.
23. Customer shall not access the building roof, third floor electrical or
communications closets, the Data. Center ceiling or floor without prior
consent from INFLOW.
CONDUCT GUIDELINES
24. Customer and its representatives may not misuse or abuse any INFLOW
property or equipment.
25. Customer and its representatives may not harass any individual including
INFLOW personnel and representatives of other Customers of INFLOW.
26. Customer and its representatives may not engage in any activity that is in
violation of the law or aid in criminal activity while on INFLOW property
or in connection with the Data Center Services. Customer and its
Representatives may not assist or permit any persons in engaging in any of
the activities described above. If Customer becomes aware of any such
activities, Customer will use best efforts to stop such activities
immediately, including, if necessary, terminating Customer's user's access
to Customer's online facilities.
27. Customer and its representatives may not infringe or misappropriate the
intellectual property rights of others. This includes posting copyrighted
materials without appropriate permission, using trademarks of others
without appropriate permission or attribution, and posting or distributing
trade secret information of others in violation of a duty of
confidentiality.
28. Customer and its representatives may not violate the personal privacy
rights of others. This includes collecting and distributing information
about users without their permission, except as permitted by applicable
law.
29. Customer and its representatives may not send, post or host harassing,
abusive, libelous or obscene materials or take any similar actions.
30. Customer and its representatives may not intentionally omit, delete, forge
or misrepresent transmission information, including headers, return
addressing information and IP addresses or take any other actions intended
to cloak Customer's or its users' identity or contact information.
31. If Customer becomes aware of any such activities, Customer will use best
efforts to stop such activities immediately, including, if necessary,
terminating Customer's user's access to Customer's online facilities.
MODIFICATION OF RULES AND REGULATIONS
INFLOW reserves the right to change these Rules and Regulations at any time.
Customer is responsible for regularly reviewing these Rules and Regulations.
Continued use of the Data Center Services following any such changes shall
constitute the Customer's acceptance of such changes.
INFLOW reserves the right to deny access to anyone not adhering to the above
rules and regulations.
Page 12
EXHIBIT E
---------
SERVICE CHANGE FORM
MODIFICATION OF DATA CENTER SERVICES AGREEMENT
AND SUMMARY OF DATA CENTER SERVICES
The provisions of this Modification of Data Center Services Agreement
and Summary of Data Center Services (this "Modification") are hereby added to
and made part of the Data Center Services Agreement dated _____________ between
InFlow, Inc., a Delaware corporation d/b/a InflowNet, Inc. ("INFLOW") and
____________________ , a _____________ corporation ("Customer"), as the same may
have been modified prior to the date hereof (the "Existing Services Agreement").
In the event of any conflict of any of the terms set forth in the Existing
Services Agreement and the terms set forth in this Addendum, including, without
limitation, the Summary of Data Center Services, the terms set forth in this
Addendum shall control. References in the Existing Services Agreement and in
this Modification to the "Agreement" shall refer to the Existing Services
Agreement as amended by this Modification.
SERVICE MODIFICATIONS
The Existing Services Agreement is amended to provide as follows:
. [Cabinet Space. The number of Customer Cabinets is [increased][decreased]
-------------
by ___, to a total of____ Customer Cabinets. The "Customer Area is amended
to mean the cabinet location(s) in the Data Center numbered
_________________ according to INFLOW's numbering scheme for the Data
Center.]
. [Data. Center Services. The Data Center Services are further amended as set
---------------------
forth below.]
.
.
. [Other Amendments. The Existing Services Agreement is further amended as
----------------
set forth below.]
.
.
It is agreed that the term of the Existing Services Agreement will end on
____________.
Page 13
SUMMARY OF DATA CENTER SERVICES
-----------------------------------------------------------------------------------------------------
Services Quantity Install Status* Install Fee Usage Fee
Date Per Unit Per Unit
=====================================================================================================
S l.a. Cabinet Space (19") ▇▇▇ ▇▇▇ TBD $1,000 $1,000
p
a Cabinet Space (23") ▇▇▇ ▇▇▇ TBD $1,000 $1,100
c ------------------------------------------------------------------------------------------------
e 1.b. Right of First Refusal ▇▇▇ ▇▇▇ TBD N/A $200
=====================================================================================================
N C 2.a. Local Service ▇▇▇ ▇▇▇ ▇▇▇ ▇▇▇ TBD
e i ------------------------------------------------------------------------------------------------
t r 2.b. Private Line(s) ▇▇▇ ▇▇▇ ▇▇▇ ▇▇▇ TBD
w c ------------------------------------------------------------------------------------------------
o u 2.c. Internet Service(s) ▇▇▇ ▇▇▇ ▇▇▇ ▇▇▇ TBD
r i ------------------------------------------------------------------------------------------------
k t 2.d. Modem/Phone Circuit(s) ▇▇▇ ▇▇▇ TBD $0 $50
s ------------------------------------------------------------------------------------------------
2.e. Interconnection ▇▇▇ ▇▇▇ TBD $0 TBD
------------------------------------------------------------------------------------------------
2.f. Network Interface(s) ▇▇▇ ▇▇▇ ▇▇▇ ▇▇▇ TBD
=====================================================================================================
P C 3.a A/C Power Circuit(s)--20A ▇▇▇ ▇▇▇ TBD $100 $15
o i ------------------------------------------------------------------------------------------------
w r 3.b. B-Side A/C Power Circuit(s)--20A ▇▇▇ ▇▇▇ TBD $100 $30
e c ------------------------------------------------------------------------------------------------
r u 3.c D/C Power Circuit(s)--20A ▇▇▇ ▇▇▇ TBD $400 $20
i ------------------------------------------------------------------------------------------------
t 3.d. B-Side D/C Power Circuit(s)--20A ▇▇▇ ▇▇▇ TBD $400 $40
s ------------------------------------------------------------------------------------------------
=====================================================================================================
T S 4.a. Application Monitoring ▇▇▇ ▇▇▇ TBD $35 $35
e u ------------------------------------------------------------------------------------------------
c p 4.b. NT Server Monitoring ▇▇▇ ▇▇▇ TBD $100 $55
h p ------------------------------------------------------------------------------------------------
n o 4.c. UNIX Server Monitoring ▇▇▇ ▇▇▇ TBD $200 $65
i r ------------------------------------------------------------------------------------------------
c t 4.d. Managed Firewall Service ▇▇▇ ▇▇▇ TBD $4,000. $2,500
a ------------------------------------------------------------------------------------------------
l 4.e. Technical Support (Tier I) ▇▇▇ ▇▇▇ TBD N/A $100
-----------------------------------------------------------------------------------------------------
*Status: Completed or Pending
AGREED AND ACCEPTED AS OF_____________:
INFLOW: CUSTOMER:
InFlow, Inc., a Delaware corporation d/b/a InflowNet, Inc. ___________________, a ___________ corporation
By: _____________________________________________________ By:____________________________________________
(Authorized Signature) (Authorized Signature)
Name:___________________________________________________ Name:__________________________________________
Title:__________________________________________________ Title:_________________________________________
Date:___________________________________________________ Date:__________________________________________
Page 14