This agreement (this “Agreement”) is made effectice as of (the “Effective Date”), between CyberLynk (“CyberLynk”) and Customer governs provision of CyberLynk’s Colocation service (the “Service”). This Agreement is effective as of the moment Customer (a) indicates assent through the CyberLynk Website or (b) establishes an account with CyberLynk or uses the Service or any element thereof. CyberLynk may revise this Agreement from time to time by posting a new version hereof on the CyberLynk Website. Continued use of the Service constitutes acceptance of such revisions to this Agreement.
WHEREAS, CyberLynk currently owns certain premises located at 10125 S.52nd Street, Franklin, WI (the “Premises”) at which CyberLynk and Customer desire to enter into an agreement so that Customer may place certain equipment (“Equipment”) in a portion of said Premises (the “Space”) as designated in Exhibit A attached hereto and incorporated herein;
NOW, THEREFORE, in consideration of the mutual covenants contained herein, CyberLynk and Customer (collectively the “Parties”) hereby agree as follows:
LICENSE TO OCCUPY AND PERMISSIBLE USE
A. CyberLynk grants to Customer a license to occupy the portion of the Premises (the “Space”) depicted in Exhibit A attached hereto.
B. The Space is accepted “AS-IS” by Customer. Customer may use the Space only for the purposes of installing, maintaining and operating Equipment necessary to support local access communications facilities/links to their Internet customers.
C. All local access facilities/links to and from Customer’s Equipment located in the Space shall be coordinated through CyberLynk.
E. In connection with the Space made available hereunder, CyberLynk shall be responsible to provide services which support the overall operation of the Space (e.g., janitorial services, environmental systems maintenance, and power plant maintenance) at no additional charge to Customer.
F. For co-location service in Franklin, Wisconsin Datacenter, unless otherwise provided elsewhere in this Agreement, each visit by Customer to the Space will be deemed to utilize escort services provided by CyberLynk from the time Customer’s employee(s) sign in upon entering the Space to the time Customer’s employee(s) sign out upon leaving the Space. Charges for escort services are consistent with the dispatch labor charges (the “Dispatch Labor Charges”) detailed in Exhibit A of this Agreement.
TERM OF AGREEMENT, TERMINATION AND RENEWAL
A. Customer’s license to occupy the Space shall begin on the “Requested Service Date”, as set forth in Exhibit A attached hereto. The minimum term of the Customer’s license to occupy the Space shall be the period set forth in Exhibit A attached hereto (“Minimum Contract Term”).
B. If CyberLynk fails for any reason to tender possession of the Space to Customer on or before the Requested Service Date (specified in Exhibit A) this Agreement shall not be void or voidable. Notwithstanding the foregoing, if CyberLynk fails to tender possession of the Space to Customer within a ninety (90) day period after such Requested Service Date (due to any reason other than the acts or omissions of Customer), Customer may upon written notice to CyberLynk declare the Agreement null and void with no further obligation by Customer and CyberLynk shall refund all fees and charges paid in advance by Customer. In the event that CyberLynk is delayed in tendering possession of the Space to Customer for any reason other than the acts or omissions of Customer, Customer shall not be obligated to pay the Occupancy Fee or Service Fee as set forth in Exhibit A until such time as CyberLynk tenders possession of the Space to the Customer. Except as provided herein, CyberLynk shall not be liable to Customer in any way as a result of such delay or failure to tender possession.
C. Subject to Section 2.D. below, Customer shall have the option, upon thirty (30) days prior written notice to CyberLynk, to renew its license to occupy the Space for the period(s) of time (“Renewal Period(s)”) and on the terms and conditions which are set forth in this Agreement and Exhibit A hereto. The Minimum Contract Term and any Renewal Periods are sometimes collectively referred to as the “Term”.
D. Following the expiration of the Term for the Space or failure of the Parties to enter into any Renewal Periods, Customer’s license shall continue in effect on a month-to-month basis upon the same terms and conditions specified herein, unless terminated by either Customer or CyberLynk upon thirty (30) days prior written notice.
E. Upon termination or expiration of the Term for the Space, Customer agrees to remove the Equipment and other property which has been installed by Customer. In the event such Equipment or property has not been removed within thirty (30) days of the effective termination or expiration date, CyberLynk shall have the right to remove, relocate, or otherwise store such Equipment or property at Customer’s expense.
PRICES AND PAYMENT TERMS
A. Customer shall pay CyberLynk monthly recurring fees (the “Recurring Fees”) which shall include charges for use and occupancy of the Space (“Occupancy Fee”), as well any non-recurring fees (“the Non-Recurring Fees”), if applicable, cross-connect fees (the “Cross-Connect Fee(s)”, if applicable and Dispatch Labor Charges, if applicable, as set forth in Exhibit A. All Occupancy Fees will be based on actual usage.
B. Prices do not include taxes, except as specifically stated herein. Customer agrees to pay or reimburse CyberLynk for any applicable taxes that are levied based on the transactions hereunder. Any such charges shall be invoiced and payable within the payment terms of this Agreement. CyberLynk agrees to provide Customer with reasonable documentation to support invoiced amounts for taxes within thirty (30) days of receipt of a Customer written request.
C. All Recurring Fees shall be invoiced in the beginning of each month commencing on the first day of the Term as identified in Exhibit A and thereafter, on the first day of each calendar month. Charges for partial months shall be prorated accordingly. All Recurring Fees shall be payable net ten (10) days from date of invoice. Late payments shall be subject to late charges if payment is not received within the payment term period. The late payment charges will be calculated based on 1.5% per month (or the maximum allowed by law, whichever is less) of the unpaid amount. CyberLynk invoices paid within ten (10) days of the invoice date are eligible for an early pay discount of 1.0% of the monthly fees and will be applied only to payments made via wire transfer (for tracking purposes). The early pay discount is not applicable on amounts due where NSF payments have been received in the prior six (6) months.
D. Customer agrees to reimburse CyberLynk for all reasonable repair or restoration costs associated with damage or destruction caused by Customer’s personnel, agents or suppliers/contractors or visitors during the Term or as a consequence of Customer’s removal of the Equipment or property installed in the Space.
ADDITIONAL TERMS GOVERNING USE OF THE SPACE; INSTALLATION OF EQUIPMENT.
A. Before beginning any delivery, installation, replacement removal work, Customer must obtain CyberLynk’s written approval of Customer’s choice of suppliers and contractors. CyberLynk may request additional information before granting approval and may require scheduling changes and substitution of suppliers and contractors as conditions of its approval. Approval by CyberLynk is not an endorsement of Customer’s supplier or contractor, and Customer will remain solely responsible for the selection of the supplier or contractor and all payments for construction work.
B. Customer shall not make any construction changes or material alterations to the interior or exterior portions of the Space, including any cabling or power supplies for the Equipment, without obtaining CyberLynk’s written approval for Customer to have the work performed or have CyberLynk perform the work. CyberLynk reserves the right to perform and manage any construction or material alterations within the Premises.
C. Customer’s use of the Space, installation of Equipment and access to the Premises shall at all times be subject to Customer’s adherence to the generally accepted industry standards, security rules and rules of conduct established by CyberLynk’s. Customer agrees not to erect any signs or devices to the exterior portion of the Premises without written consent of CyberLynk.
D. CyberLynk shall not arbitrarily or discriminatorily require Customer to relocate the Equipment; however, upon thirty (30) days prior written notice or, in the event of an emergency, such time as may be reasonable, CyberLynk reserves the right to change the location of the Space or the Premises to a site which shall afford comparable environmental conditions for the Equipment and comparable accessibility to the Equipment. CyberLynk and Customer will work together in good faith to minimize any disruption of customer’s services as a result of such relocation. All costs of relocating the Equipment shall be borne by Customer; provided, however, Customer shall not be required to pay for the cost of improving the Space to which the Equipment may be relocated. CyberLynk will relocate, to the extent necessary, only the cabling and construction that was installed by CyberLynk.
Customer agrees to maintain, at Customer’s expense, during the entire time this Agreement is in effect for each Space (i) Comprehensive General Liability Insurance in an amount not less than Five Hundred Thousand Dollars ($500,000.00) per occurrence for bodily injury or property damage, (ii) Employer’s Liability in an amount not less than Five Hundred Thousand Dollars ($500,000.00) per occurrence, and (iii) Worker’s Compensation in an amount not less than that presubscribed by statutory limits. Prior to taking occupancy of the Space, Customer shall furnish CyberLynk with certificates of insurance which evidence the minimum levels of insurance set forth herein and which names CyberLynk as an additional insured.
If Customer fails to perform its obligations, or fails to pay for services rendered hereunder, CyberLynk at its sole option and with written notice, may issue a default termination letter to Customer to cure the default condition. If the default condition is not remedied within the time period specified in the notice letter, which shall not be less than fourteen (14) calendar days, CyberLynk may then, without the necessity of any further notice, discontinue performance and terminate this Agreement, as applicable, for default and pursue any other remedies available at law or in equity.
Neither Party shall be liable to the other Party under this Agreement for any failure or delay in performance that is due to causes beyond its reasonable control, including but not limited to, acts of nature, governmental actions, fires, civil disturbances, interruptions of power, or transportation problems.
ASSIGNMENT OR TRANSFER
Customer shall not assign or transfer the rights or obligations associated with this Agreement, in whole or in part, without CyberLynk’s prior written consent. CyberLynk may assign this Agreement to CyberLynk’s affiliates or subsidiaries. Any attempted or purported assignments or transfer in violation of this provision shall be void ab initio.
LIMITATION OF LIABILITY & INDEMNIFICATION
A. In no event shall CyberLynk nor any of its members, employees, or vendors be liable for any loss of data, profit, or revenue by Customer or for any consequential, incidental, special, punitive or exemplary damages incurred or suffered by Customer, nor for any loss of power or HVAC interruption, even if CyberLynk has been advised of the possibility of such loss or damage.
B. Customer shall indemnify and hold harmless CyberLynk, its members and employees and agents from and against any and all claims, cost, expenses or liability arising out of Customer’s use of the Space or Customer’s operation of the Equipment within the Space.
C. Each Party shall be liable to the other for damage or loss to any tangible property or persons if such damage or loss is caused by gross negligent or willful act or omission of such Party or its officers, members, employees, agents, affiliates or contractors operating within the scope of their employment or by the malfunction of any equipment supplied or operated by said Party.
All formal notifications and transmittals between Parties pursuant to the provisions of this Agreement shall be sent to firstname.lastname@example.org. CyberLynk will also send notices via email to the main account contact via https://secure.cyberlynk.net/
This Agreement, including all Attachments and Exhibits, constitutes the entire agreement between the Parties pertaining to the subject matter hereof and supersedes all prior and contemporaneous agreements of such Parties in connection herewith. This Agreement shall be governed by the laws of the State of Wisconsin.
DISPATCH LABOR CHARGES
The following charges shall be applied for call-out services and other labor performed by CyberLynk at the request of Customer. These services shall be billed in one (1) hour increments and a one (1) hour minimum charge applies.
1. Normal Business Hours………………………..$125.00 / hour
(Monday through Friday, 8 AM to 5 PM, except CyberLynk Holidays)
2. After Hours & Weekends………………………$145.00 / hour
3. Holidays……………………………….…………$300.00 / hour