Exhibit 10.8
Co-location Services Agreement
This Co-location Services Agreement (the "Agreement") by and between:
** MIDNET CANADA INC.
"**" "Customer"
Address: ** Address: ▇▇▇ - ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇ ** ▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇ ▇▇▇
Contact: ** Contact: ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Telephone: ** Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Fax: ** Fax: (▇▇▇) ▇▇▇-▇▇▇▇
Email: ** Email: **
This Agreement (which includes and incorporates by reference Schedules "1" and
"2" attached and any Service Agreement Addendums) sets forth the terms under
which the parties agree that ** will provide certain services to Customer
according to the following specifications:
The Term of this Agreement will commence five (5) days after the "Effective
Date" from Schedule 1 or the day the Customer first installs equipment or
circuits in the Space, 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 Agreement will automatically renew for
consecutive one (1) year periods, unless one party notifies the other in writing
at least forty-five (45) days prior to the end of the then-current term that it
has elected to terminate the Agreement, in which case the Agreement will
terminate at the end of such then-current term.
GENERAL TERMS AND CONDITIONS
1. Services. ** agrees to supply the Services in accordance with the terms of
this Agreement. Customer agrees to receive the Services from ** in
accordance with the terms of this Agreement.
2. Other Services. Upon written request by Customer, ** 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. Unless
the parties agree otherwise, Customer will pay for such Other Services in
accordance with the Technical Support Services section of this Agreement.
3. Payment.
3.1 Customer will pay ** 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 15 amps for full
and half cabinets, or 7.5 amps for quarter cabinets (the "Additional
Power"). Upon 30 days or greater written notice prior to the end of
the Term, ** 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 ** under this Agreement (not
including taxes based on **'s income).
3.2 All One-Time Install Fees will be payable in advance. All Recurring
Monthly Fees will be payable monthly in advance. Charges for Other
Services, which are not billed as Recurring Monthly Fees, will be
payable monthly in arrears.
3.3 Except for the First Payment shown in the Service Table, which must be
paid by Customer to ** 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
** at the address set forth above.
3.4 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. Credits. Except as provided in the last sentence of this Section 4, if some
or all of the Customer Space is not usable for a period exceeding one hour
(the "Temporarily Unusable Customer Space"), Customer, if it notifies **
within five (5) days of such period, is entitled to a credit of the monthly
recurring portion of the License Fees for such Temporarily Unusable
Customer Space only, which credit will equal one seven hundred twentieth
(1/720) of the monthly recurring portion of the License Fees for such
Temporarily Unusable Customer Space for each hour that such space is
unusable. This credit is Customer's sole and exclusive remedy for
interruptions, suspensions, failures, defects, delays, impairments or
inadequacies in any of the Services. Notwithstanding the foregoing,
Customer will have no right to receive a credit if the Temporarily Unusable
Customer Space, Customer will have no right to receive a credit if the
Temporarily Unusable Customer Space is not
Co-location Services Agreement **
** The confidential portion has been omitted pursuant to a request for
confidential treatment. The confidential portion has been filed separately with
the Securities and Exchange Commission.
usable because of (i) actions or omissions of Customer or any Sublicensee
or other third-party; (ii) Customer's Equipment or the equipment of any
Sublicensee or other third-party; or (iii) circumstances or events beyond
**'s control.
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. ** 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.
6. If Customer is in Default. If Customer is in default of any of its
obligations under this Agreement, then ** 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 **, 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, ** may seize the Equipment and sell the Equipment
to third parties in satisfaction of any Customer indebtedness owing to **
as well as any costs (including reasonable legal fees) incurred by ** in
exercising any remedy under this Agreement, and (iv) if ** terminates this
Agreement in accordance with Section 4, 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 ** and gives consent to **
under applicable privacy laws for ** 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 ** such further documents and assurances and take such
further actions as ** 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 ** PERMITS OTHER
LICENSEES TO INSTALL THEIR EQUIPMENT IN THE PREMISES. ** 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 **'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 ** UNDER THIS AGREEMENT IN THE IMMEDIATELY PRECEDING 2
MONTHS FROM THE DATE THE CLAIM AROSE. IN NO EVENT WILL ** 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 ** 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 provided by ** 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 ** 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 **, 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 ** 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 **.
Co-location Services Agreement 2
** The confidential portion has been omitted pursuant to a request for
confidential treatment. The confidential portion has been filed separately with
the Securities and Exchange Commission.
11.4. SURVIVAL. The provisions set forth in Sections 3, 5, 7, 8, 9
(indemnity obligations only), 10, 21and 22 of this Agreement will
survive termination or expiration of this Agreement.
11.5. RESERVATION OF RIGHTS. ** reserves all rights not specifically
granted herein.
11.6. ENTIRE AGREEMENT. This Agreement, the Schedule and any 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, **
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.
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 ** to Customer will be that of an
independent contractor, and neither ** nor any employee of ** 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 presente
convention et tous documents y afferents ont ete rediges en anglais a
la demande mutuelle des parties aux presentes.
CO-LOCATION TERMS AND CONDITIONS
12. Grant of License. Subject to the terms of this Agreement, ** 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 **'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 **'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 **
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. ** reserves the right to
approve of Customer's technicians and other contractors. During the Term of
this Agreement, Customer will immediately notify ** of any space, power or
other requirements associated with the installation or operation of the
Equipment. ** will have no duty to monitor, maintain or care for the
Equipment.
14. Floor Load. Licensee shall not place a load upon any floor of the Space
which exceeds either the load per square foot which such floor was designed
to carry or that which is allowed by law. ** reserves the right to
prescribe the weight and position of all safes, business machines and
mechanical equipment.
Co-location Services Agreement 3
** The confidential portion has been omitted pursuant to a request for
confidential treatment. The confidential portion has been filed separately with
the Securities and Exchange Commission.
15. 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, ** or any
other user of the Premises or any equipment owned or used by ** 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 **.
16. Immediate Threats. If, in the determination of **, 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 ** or
any other user of the Premises, or poses an immediate threat to the safety
of any person, then ** 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, ** will advise Customer in writing of the work performed or the
action taken.
17. 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 **, then ** 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, ** will advise Customer in writing of the work
performed or action taken. Customer will immediately reimburse ** for all
expenses reasonably incurred by ** associated with any work or action
performed by ** with respect thereto.
18. Relocation. Customer will, at **'s expense, relocate the Equipment to other
space within the Premises upon **'s written request and within 15 days of
such request.
19. Periodic Inspections. ** 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.
20. Insurance. Customer will maintain, at Customer's expense, during the Term
of this Agreement for the Premises (i) Comprehensive General Liability
Insurance protecting ** 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 **'s request, Customer will
provide ** with certificates of insurance or other satisfactory evidence
that the insurance required in this Section has been obtained. Under no
circumstances will ** be obligated to provide insurance coverage for any
Customer Equipment in the Premises.
21. Access. Subject to the terms of this Agreement and compliance with payment
terms under Item 3.3, 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
** rules and regulations (as amended by ** from time to time). Failure to
comply with the payment terms may result in denial of access as set forth
in Item 5.
22. Co-location facility Rules and Regulations. ** 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 ** may impose
from time to time, provided that Customer has been given 30 days notice in
writing.
22.1.All Customer employees, agents, contractors or invitees ("Customer
Persons") having access to the Premises must be approved by **.
Approval by ** does not release Customer from its responsibilities
pursuant to this Agreement, nor by approving such Customer Persons
does ** waive its right to be indemnified by Customer.
22.2.Customer must provide ** with particulars, including a current
photograph of each Customer Person, before that Customer Person is
given access to the Premises
▇▇.▇.▇▇ more than three Customer Persons will be authorized to have access
to the Premises at any time.
23. Removal of Equipment. Upon termination or expiration of the Term of this
Agreement, unless prohibited by ** 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, ** 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 **
Customer has not retrieved the Equipment and paid any indebtedness owing to
**, then ** may exercise all the rights and remedies of a secured party
under applicable law including, without limitation, ** 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 ** in exercising any remedy under this Agreement.
24. Security. As continuing security for the obligations of Customer to ** as
set out in this Agreement, Customer hereby grants to ** 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.
Co-location Services Agreement 4
** The confidential portion has been omitted pursuant to a request for
confidential treatment. The confidential portion has been filed separately with
the Securities and Exchange Commission.
25. 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.
26. Consent to Video Monitoring. Customer acknowledges, agrees and hereby
consents under applicable privacy laws that ** 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.
TECHNICAL SUPPORT AND SERVICES PRICING
Technical Support (remote hands)
Technical Support (8am - 5pm Mon - Fri) $** **
Technical Support (Outside Business Hours) $** **
Other
Install Recurring
Cat 5 Drop ** ** **
Fibre Drop ** ** **
Fibre to the Meet me Room ** ** **
Extra Shelves ** **
Electricity ** ** **
Additional Access Cards (key included) ** **
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:
** CUSTOMER
By: /s/ ** By:/s/ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
----------------------------------- ----------------------------------
(Signature) (Signature)
** ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ OR ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
-------------------------------------- ------------------------------------
(Name typed or printed) (Name typed or printed)
** Director - Network Strategy OR CTO
-------------------------------------- ------------------------------------
(Title) (Title)
June 23, 2004 June 16, 2004
-------------------------------------- ------------------------------------
(Date) (Date)
Co-location Services Agreement 5
** The confidential portion has been omitted pursuant to a request for
confidential treatment. The confidential portion has been filed separately with
the Securities and Exchange Commission.
SCHEDULE "1"
SERVICE TABLE
Company Name: Midnet Canada Inc.
Address: ▇▇▇▇▇ ▇▇▇-▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇ ▇▇▇
General Company Number: (▇▇▇) ▇▇▇-▇▇▇▇
Fax Number: (▇▇▇) ▇▇▇-▇▇▇▇
Admin Contact (Name/Email/Phone): ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇/**
Technical Contact (Name/Email/Phone): ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇/**
Accounts Payable Contact (Name/Email/Phone): ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇/**
Co-location Services
Includes: 15 Amps power (7.5 for a quarter), 2 access cards, 2 keys
Standard Cages: UPS included; Custom Cages: UPS customer supplied
Description Qty One-time Charges Monthly Recurring
----------- --- ---------------- -----------------
Cage Type FULL CABINET ** ** **
-- -- --
Cat 5 drop/Fibre Coaxial/Fibre conduit ** **
-- --
Cable Install Refer to attachment **
--
Additional Access Cards
Other
Subtotal: $** Subtotal: $**
-- --
PST: ** PST: $**
-- --
GST: ** GST: $ **
-- --
TOTAL A $** TOTAL B: $**
-- --
Total A + Total B = first
month's payment due upon signing
of agreement First month's payment: $**
--
Premises: VANCOUVER - **
Currency: CAD
Term: **
Invoice (Circle one): By email By fax By mail
Customer's Scheduled Move-In Date ("Effective Date"): __________________
Special Instructions:
Customer will be receiving fibre and coaxial cable from another provider for
transport/local loop type services.
Co-location Services Agreement 6
** The confidential portion has been omitted pursuant to a request for
confidential treatment. The confidential portion has been filed separately with
the Securities and Exchange Commission.
SCHEDULE "2"
LIST OF EQUIPMENT
(To be filled out by Customer)
Cabinet Number Equipment ID Power (Kva) Heat (BTU) Weight (lbs) Size (H x W x D)
Electrical Install Details:
Re: **
Part 1:
1) Supply and install 2 x 75' each of 24-fibre pre-manufactured
singlemode cable complete with SC-SC connectors, from the neutral
space to the NDP room.
2) Supply and install 2 x 75' each of 24-fibre pre-manufactured multimode
cable complete with SC-SC connectors, from the neutral space to the
NDP room.
3) Labour to install cabling, terminations in the patch panels and
testing.
Part 2:
- Four Nordx 2U fibre express 24/48 fibre panel Materials Only
- Eight Nordx SC SM 12-port adapter strips Materials Only
Eight Nordx SC MM 12-port adapter strips Materials Only
Co-location Services Agreement 7
** The confidential portion has been omitted pursuant to a request for
confidential treatment. The confidential portion has been filed separately with
the Securities and Exchange Commission.