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networkWCS Colocation
  1. License to Occupy and Permissible Use.

 

  1. Subject to the terms provided herein, as well as the Agreement to which this Addendum is attached and subject to the corresponding execution by Customer of the applicable documentation to purchase telecommunications services from WCS to be used in conjunction with this license, except as otherwise permitted pursuant to Section 1(d). below, WCS hereby grants to Customer a license (“License”) to install, operate, maintain, and repair a communications system, associated equipment, lines and cables connected thereto, and/or hardware server(s) and its associated cables (collectively, “Equipment”) in a portion of the premises owned or leased by WCS (“Premises”) and connected to WCS’s telecommunications facilities and associated equipment (“Facilities”), as depicted in the Colocation Schedule(s) attached hereto and made a part hereof or as mutually agreed to by both parties in writing (“Equipment Space”).

 

  1. Each Colocation Schedule shall only be effective upon its full execution by the parties.

 

  1. Customer shall use the designated equipment space at the WCS premises (“Equipment Space”) and the Equipment installed within the Premises solely for its own internal business purposes. Customer shall not prohibit or interfere with the use of the Premises or any portion thereof, by WCS or other tenants, customers or occupants of the Premises.  Customer shall not sublicense, lease, rent, share, resell or allow the use of the Equipment or Equipment Space, in whole or in part, by any third party, including but not limited to other providers of computer or telecommunications services. 

 

  1. Customer may use the Equipment Space only for purposes of installing, maintaining and operating Equipment necessary to support interconnection to the WCS Services and network and to alternate providers. Where applicable and as set forth in a Service Exhibit or Order Form executed by both parties, Customer might be required to purchase a minimum amount of monthly or annual  WCS non-Colocation services  in exchange for the License set forth in this Service Schedule. 

 

  1. WCS will install and manage all cross-connections and will charge Customer accordingly as set forth in this Addendum and the Professional Services Agreement incorporated into the Agreement. Cross-connections from one collocating customer to another may only occur in the applicable meet-me room or such other location designated by WCS.  These cross-connects will also incur a charge in addition to the charges set out in the applicable Colocation Schedule; such additional charge will be determined by WCS depending on the specific circumstances. 

 

  1. Customer will not be permitted to utilize the Equipment Space as a work site.  Customer may not operate its business out of the Equipment Space or house personnel in the Equipment Space.  For example, and without limitation, mail deliveries to the Customer may not be sent to the Premises.  Any mail addressed to the Customer at the Premises will be refused.  Unless a Customer representative is present to receive all Equipment deliveries at a Colocation site, Customer must reasonably schedule the receipt of any deliveries with the site’s local WCS contact in advance of each delivery.  WCS will not be responsible in any way for the care of any deliveries made.  Unless otherwise mutually agreed to in writing by the parties, deliveries of any kind must be moved away from the loading dock or other receiving area at the Colocation site within five (5) hours of the delivery.  If the delivery has not been moved by a representative of the Customer, WCS may move the delivery to another site, and will not be responsible for the condition of the delivery, including Equipment delivered to the WCS Premises.  Equipment may not be stored at any Colocation site unless it is housed within Customer’s contracted caged area or cabinet. 

 

  1. Customer may obtain WCS Technical Services at WCS Premises in accordance with Exhibit B, Technical Services, attached to and made a part of the applicable Colocation Schedule.

 

  1. Condition of Equipment Space and Premises/Shared Space. Customer acknowledges that it has inspected the Equipment Space and the Premises, accepts the same “AS IS” and agrees that WCS is under no obligation to perform any work or provide any materials to prepare the Equipment Space or the Premises for Customer.  In the event that Customer is obtaining Shared Space (defined as any space that does not reside in an individually, customer-specific locked cabinet or cage) from WCS, Customer further acknowledges that Shared Space is not secured separately or individually and as such, does not provide any security whatsoever from other WCS customers using Shared Space or any other individuals who have access to the Shared Space.

 

  1. License Fee and Payment.   The license fees (“License Fee”) associated with Customer’s use of the Equipment Space are comprised of monthly recurring service fees, non-recurring charges, and other related charges which are in addition to any monthly recurring charges associated with services purchased under the Agreement. The License Fees are set forth in the attached Colocation Schedule.  WCS will notify Customer in writing that the Equipment Space is ready for occupancy at which time monthly billing will commence _______________.  Customer must notify WCS in writing that Equipment installation is complete and is operational. License Fees and other applicable recurring and non-recurring charges for Colocation will appear on the invoice one (1) month in advance, with the first month’s charges pro-rated to the number of days in service for the first month.  Usage-based or other related charges that vary will be billed in arrears.  Customer shall not be entitled to abate payment of the License Fees during the pendency of any delays or failures in performance caused by or resulting from an event beyond the reasonable control of either party.

 

  1. Term.  Unless otherwise separately terminated as provided for herein, this Addendum shall be coterminous with the Agreement.  The term of the License to occupy each Equipment Space (“Term”) shall begin on the Start of Service Date applicable to the Colocation Schedule.  WCS will begin billing Customer for the License Fee and other applicable charges on the Start of Service Date.  The minimum Term shall be the period set forth in the Colocation Schedule, but in any case not less than one (1) year.  If the Term of the License as applicable to a particular Equipment Space extends beyond the effective date of termination of this Addendum and/or Agreement, such License shall remain in effect for such agreed upon time period set out in the Colocation Schedule, subject to all of the terms and conditions of this Agreement and this Addendum as if they were still in effect with respect to such Equipment Space.  WCS shall not be liable for any damages whatsoever resulting from delays in meeting the Requested Service Date for the Equipment Space specified by Customer and described in the Colocation Schedule, or inability to provide services to such Equipment Space.  Customer may not cancel this Agreement if there is a delay in delivery of the Equipment Space or any related services unless such delay is solely due to WCS and such delay extends ninety (90) days beyond the Requested Service Date; provided, however, in no event may Customer cancel if WCS has agreed to construct or is constructing facilities in the Equipment Space.

 

  1. Renewal.  Unless a Party notifies the other Party in writing not less than thirty  (30) days prior to the expiration of the original or renewal term of the Colocation Schedule that it intends not to renew the Colocation Schedule, the Colocation Schedule shall automatically renew for the same service term and at the same pricing, terms and conditions as set forth in such Colocation Schedule; provided, however, that any such renewal shall be contingent on the election by WCS to continue to own or lease the Premises in which the Equipment Space is located (as identified in the Colocation Schedule) for the duration of the relevant renewal period(s), such election to be exercised at the sole discretion of WCS.

 

  1. Reservation of Rights/Non-exclusivity.   Except for the License expressly granted pursuant to Section 1 above, WCS retains, in accordance with the lease or sublease under which WCS occupies the Premises (“Underlying Lease”), all rights and interests in and to the Premises, the WCS Facilities, the Equipment Space, and to any property, products, or equipment therein (other than the Customer Equipment), whether or not embedded in or attached to realty.  Customer hereby acknowledges and agrees that the License and permission granted herein: (i) does not constitute a lease, sublease, assignment or easement; and (ii) shall not give Customer, its agents, employees, sub-licensees, successors or anyone else any title or other ownership or real property interest in or to the Premises, the WCS Facilities, the Equipment Space or any WCS property whatsoever.  Customer may not use the Premises and/or the Equipment Space, or allow access thereto or use thereof, except pursuant to the terms and conditions of the Agreement and this Addendum. Customer acknowledges that this License is expressly made subject to all applicable Underlying Lease(s). WCS represents to Customer that: (i) it is authorized to enter into this Addendum and grant the License described in Section 1 above; and (2) such grant of License by WCS in accordance with the terms and conditions of this Addendum will not cause WCS to be in default of the Underlying Lease.  Other than as expressly set forth in this Agreement, Customer shall have no additional rights, and WCS shall have no additional obligations, with respect to the Premises, the WCS Facilities, and the Equipment Space. WCS reserves the right to grant, renew or extend similar licenses to others for locating equipment and facilities in the Premises.

 

  1.  Access to WCS Premises.  Subject to the terms and limitations described herein, including reasonable WCS security measures, and except as specified in the Colocation Schedule, WCS shall provide Customer 24 hour, 7 days per week access to the Equipment Space, so that Customer may perform installation, operation, maintenance, replacement and repair functions.  If escorted access is required, all such access and other activities shall be subject to Customer providing WCS with reasonable advance notice, and shall be at Customer’s expense.  If the Colocation Schedule specifies escorted access, then Customer must be accompanied at all times by a WCS designated representative billable at a the rate of Remote Hands Level 1 contained in Exhibit B herein.

 

WCS may deny Customer access to the Premises or otherwise suspend services during any period when Customer is in breach of the Agreement and/or this Addendum and Customer has received written notice of the breach and has failed to cure as provided in the Agreement and/or this Addendum.  Customer waives all claims arising out of any such denial of access.

 

  1. Installation and Other Work.

 

  1. Prior to the commencement of any work at or around the Premises, Customer shall, at its reasonable cost and expense, prepare and deliver to WCS working drawings, plans and specifications (“Plans”) as requested by WCS in writing to Customer, detailing the technical characteristics, location and size of the Equipment and/or the Equipment Space, specifically describing the proposed installation and related work, and detailing the schedule for all installation activities related thereto.  No work shall commence until WCS, in its sole and reasonable discretion, has approved the requested Plans in writing and Customer has received such written approval, which shall not be unreasonably withheld.  The Equipment shall be designed and constructed so as to prevent electromagnetic and radio frequency signal leakage. WCS shall allow Customer to connect the Equipment to WCS Facilities in accordance with industry-accepted practices and procedures.

 

  1. If Customer performs any installation, construction, or other work at the Premises or Equipment Space, Customer shall:

 

  1. Perform such installation and other work in a safe manner consistent with the Equipment manufacturers’ specifications, industry standards and practices and other requirements provided by WCS;

 

  1. Perform such construction and other work so as to minimize interference with the operation of the Premises and the occupants’ activities and businesses;

 

  1. Perform heavy construction or installation activities, which would reasonably be considered as disruptive or noisy, before 8:00 a.m. and after 5:00 p.m.  local time or as otherwise reasonably requested by WCS;

 

  1. Obtain necessary federal, state and municipal permits, licenses and approvals, prior to the commencement of any installation and other work;

 

  1. Conduct its installation or work activities with properly trained, competent, and qualified technicians in accordance with applicable industry standards;

 

  1. Be responsible for safety conditions in the areas of work performance at all times;

 

  1. Keep the installation or work areas safe and orderly at all times; and

 

  1. Upon completion of installation or other work, leave the Premises clean and free from all of its materials, tools, and equipment not required after installation and from all rubbish and debris which result from such installation activities.

 

  1. WCS shall have the right to stop Customer’s installation or other work activities, without liability to WCS, if WCS determines such activities are interfering with the operation of the Premises or the occupants’ activities and quiet enjoyment thereof and WCS provides written notice of same to Customer and provides Customer a reasonable time period to cure/correct the subject-matter activities referenced in this Section 8.

 

  1. Utilities and Interruptions.

 

  1. During the Term, WCS shall use commercially reasonable efforts to furnish to Customer electrical power necessary to meet the reasonable requirements of Customer at the Premises, subject to the charges set forth in the Colocation Schedule.  If the power provided by WCS causes interference with the proper operation of Customer’s Equipment, Customer will be responsible for providing at Customer’s sole expense any filtering or regulation devices within the Equipment Space, to correct the interference.

 

  1. To the extent Customer chooses to install a separate electrical panel and meter for the Equipment, Customer shall pay all reasonable costs associated with installation of such separate electrical panel and meter in the Equipment Space.  Customer shall pay, and otherwise be responsible for and indemnify WCS against all electrical, HVAC and other utility costs attributable to such separate panel and meter installed for the Equipment and all of Customer’s activities in the Premises.  Such payment will be made by Customer directly to the applicable utilities and vendors if so billed, or Customer shall pay Customer’s pro rata share of such costs to WCS, including a management fee, if WCS is billed by the utilities.  Customer acknowledges that such pro rata utility costs paid to WCS may vary by region and are subject to change with thirty (30) calendar days of notice to Customer and written proof of the increase/variation is provided upon Customer’s written request.

 

  1. WCS shall use commercially reasonable efforts to notify Customer in advance of any planned utility or other interruptions or outages which may interfere with Customer’s use of the Equipment Space.  Further, the parties shall use reasonable commercial efforts to avoid any unnecessary interruptions and, where required, to work with each other to plan and coordinate necessary service and utility interruptions so as to minimize disruptions to Customer’s Equipment and WCS Facilities.  However, WCS shall not be liable, including without limitation to Customer or any of its customers, for any damages, liabilities or expenses resulting from or caused by such interruptions or outages, whether or not due to WCS negligence or otherwise, unless caused by WCS’s gross negligence or willful misconduct.

 

  1. Equipment Ownership and Maintenance.

 

  1. The Equipment shall belong to Customer and shall be located in the Premises at the sole risk of Customer, and WCS shall not be liable for damage thereto or theft, misappropriation or loss thereof, except in the event of WCS gross negligence or willful misconduct or a breach in WCS’s security as set forth in the MSA.  All Equipment supplied by Customer shall be conspicuously labeled by the Customer as such.

 

  1. Customer shall at its sole reasonable expense maintain and repair its Equipment, including, without limitation, to avoid hazard or damage to the Premises and WCS Facilities and injury to WCS employees, agents and suppliers or to the public.  In case where additional protection facilities are required, the same shall be provided by Customer, at Customer’s sole reasonable expense.  WCS shall have no responsibility for the maintenance and repair of the Equipment unless otherwise provided under the Professional Services Agreement incorporated into the Agreement.

 

  1. At the expiration or termination of the Colocation Schedule, Customer will remove the Equipment and Customer’s personal property from the relevant Premises in a neat and orderly manner, and repair all damage caused by such removal, at Customer’s sole reasonable cost and expense except for normal wear and tear of the relevant Premises. Unless otherwise agreed to by the parties in writing, any property not so removed within thirty (30) days after the expiration or termination of the Colocation Schedule, shall be deemed the property of WCS and Customer shall be liable for all reasonable costs incurred by WCS from the removal and storage, if applicable, of the Equipment which Customer failed or refused to remove as well as any costs incurred by WCS for the repair of the Premises or WCS Facilities as a result thereof.

 

  1. Limitations on Use and Relocation.

 

  1. WCS may, without liability, limit the use of the Equipment Space or any portion thereof by Customer hereunder when necessary because of conditions beyond WCS’s control. In addition, WCS reserves the right at all times during the Term to suspend any and all services and/or Facilities to be provided hereunder, including, without limitation to furnishing of electrical power, and remove, change or otherwise terminate the operation of Customer-supplied Equipment installed in the Equipment Space without notice, if WCS deems, in its sole discretion, that such actions are necessary to protect the public, the Premises, WCS personnel or agents, WCS Facilities or WCS services from damages or injury of any kind.  Where possible, WCS will notify Customer promptly of such action and work in cooperation with Customer to effect such remedies so as to permit the Equipment to be returned to operation in an acceptable manner.

 

  1. WCS shall have the right to relocate or require the relocation of the Equipment if such relocation is necessary or desirable, in WCS reasonable judgment, including without limitation due to damage to the Premises.  In such event, WCS shall provide Customer with reasonable advance notice of the need to relocate such Equipment, and the parties shall meet to agree upon the activities required for such relocation.  WCS shall be responsible for all reasonable costs resulting from such relocation of the Equipment

 

  1. Environmental Responsibility.

 

  1. WCS and Customer agree to comply with applicable federal, state and local environmental, health and safety laws and regulations, including U.S. Environmental Protection Agency regulations issued under the Clean Air Act, Clean Water Act, Resource Conservation and Recovery Act, Comprehensive Environmental Response, Compensation and Liability Act, Superfund Amendments and Reauthorization Act and the Toxic Substances Control Act and OSHA regulations issued under the Occupational Safety and Health Act of 1970 and all similar or related state laws.  Each Party has the responsibility to notify the other if compliance inspections occur and/or citations are issued that impact any aspect of the Agreement, this Addendum, or involve any exposure to hazardous materials at any WCS Premises.

 

  1. To the extent required by federal, state or local laws, WCS and Customer are each responsible for preparing and distributing or posting any and all notices of known, recognized or suspected physical hazards or chemical hazards, including but not limited to providing and posting Material Safety Data Sheets (MSDSs) for materials present on the Premises or brought on site to the Premises.

 

  1. Customer owns any materials brought to or used at the Premises by Customer or remaining at the Premises as a result of Customer’s activities.  Customer shall indemnify, defend and hold WCS harmless for any claims or liabilities arising from the effects of these materials or the presence of the materials themselves.  Neither party shall take any action that creates substantial new safety or environmental hazards nor shall either party use or store hazardous materials other than those already present as a result of WCS’s activities at the Premises. WCS shall indemnify, defend and hold Customer harmless for any claims or liabilities arising from the effects of WCS materials or the presence of the WCS materials themselves.  Customer and WCS shall each   have plans in place to address any release or exposure resulting from the presence of hazardous materials present at the Premises and, if requested by the other party, shall demonstrate to the other party that its plans are adequate and will result in the appropriate level of emergency response for its materials present at the Premises.

 

  1. Customer and WCS shall, at its sole cost and expense, obtain, maintain and comply with environmental permits, approvals, or identification numbers, to the extent such permits, approvals, or identification numbers are required under applicable federal, state or local laws. 

 

  1. Customer shall be solely responsible for compliance with all WCS security, fire, safety, environmental and building practices/codes by its visitors, employees and contractors.  Customer shall provide any necessary training to its visitors, employees and contractors who work in WCS Premises. Upon Customer’s written request, WCS shall provide Customer with copies of the practices/codes referenced in this paragraph upon the Start of Service Date of this Addendum.

 

  1. In addition to and without limiting Section 14 below, with respect to environmental responsibility under this Section 12, WCS and Customer shall indemnify, defend, and hold each other harmless from and against any claims (including without limitation, third party claims for personal injury or real or personal property damages), judgments, damages (including direct, indirect and punitive damages), penalties, fines, forfeitures, cost, liabilities, interest and losses that are either (i) proximately caused by the indemnifying party’s gross negligence or willful misconduct regardless of form, or (ii) in connection with the violation or alleged violation of any applicable requirement with respect to the presence or alleged presence of contamination arising out of the indemnifying party’s acts or omissions concerning its operations and/or activities at the Premises,

 

  1. Any activities impacting safety, health or the environment must also be harmonized with (i) the Underlying Lease and any other agreement, and (ii) the relationship between, WCS and the private landowner or landlord, if any.

 

  1. Customer Equipment Access - Customer shall not have access to WCS’s Main Distribution Frame or Intermediate Distribution Frame, DSXs, DCS, or any other WCS equipment or facilities not specifically designated in writing by WCS for Customer access.

 

  1. Customer’s Equipment and Facilities.  Customer is solely responsible for the design, engineering, installation, testing, provisioning, performance, monitoring, maintenance and repair of the Equipment and facilities used by Customer unless otherwise provided in a Professional Services Agreement entered into between Customer and WCS.

 

  1. WCS Access to Colocation Arrangement.  From time to time, WCS may require access to the Equipment Space.  WCS retains the right to access such space for the purpose of making WCS equipment and building modifications (e.g., running, altering or removing racking, ducts, electrical wiring, HVAC, and cables). WCS will give reasonable notice to Customer when access to the Equipment Space is required.  Customer may elect to be present whenever WCS performs work in the Equipment Space. The parties agree that Customer will not bear any of the expense associated with this work.

 

  1. Interference or Impairment.  Notwithstanding any other provisions of the Agreement or this Addendum, Equipment and facilities placed in the Equipment Space shall not interfere with or impair service provided by WCS or by any other space requestor located in the Premises; shall not endanger or damage the facilities of WCS or of any other requestor, the Colocation, or the Premises; shall not compromise the privacy of any communications carried in, from, or through the Premises; and shall not create an unreasonable risk of injury or death to any individual or to the public. If WCS reasonably determines that any equipment or facilities of Customer violates the provisions of this Section, WCS shall give written notice to Customer, which notice shall direct Customer to cure the violation within forty-eight (48) hours of Customer’s actual receipt of written notice or, at a minimum, to commence curative measures within 24 hours and to exercise reasonable diligence to complete such measures as soon as possible thereafter.  After receipt of the notice, the parties agree to consult immediately and, if necessary, to inspect the arrangement.  If Customer fails to take curative action within 48 hours or if the violation is of a character which poses an immediate and substantial threat of damage to property, injury or death to any person, or interference/impairment of the services provided by WCS or any other space requestor, then WCS may take such action as it deems appropriate to correct the violation, including, without limitation, the interruption of electrical power to Customer’s Equipment.  WCS will endeavor, but is not required, to provide notice to Customer prior to taking such action and shall have no liability to Customer for any damages arising from such action, except to the extent that such action by WCS constitutes willful misconduct or gross negligence.

 

  • Alterations.  In no event shall Customer or any person acting on behalf of Customer make any rearrangement, modification, improvement, addition, repair, or other alteration which could affect in any way space, power, HVAC, and/or safety considerations to the Equipment Space or the WCS Premises without the written consent of WCS. The reasonable cost of any such specialized alterations shall be paid by Customer. Any rearrangement, modification, improvement, addition, repair, or other alteration shall require an amendment to the Colocation Schedule and payment of any additional fees imposed by WCS.

 

  1. Power.  WCS shall provide DC power and/or AC power to the Equipment Space as per the allotment specified in the Colocation Schedule.   WCS shall be responsible for repairing and maintaining the electrical system of the Premises and shall provide a generator to back up the power supply. WCS shall be responsible for repairing and maintaining the generator and for supplying fuel to the generator consistent with industry standards for telecommunications.

 

  • Facility Maintenance Services.  WCS shall maintain the Premises (but shall not have an obligation to maintain the Equipment Space, unless otherwise set forth in the Professional Services Agreement) and shall provide maintenance services in a professional workmanlike manner consistent with telecommunications industry standards.

 

  • Interconnection/Cross-Connect Services.  Upon written consent of both parties, WCS shall provide Interconnection Services at the pricing and rates provided in the applicable Colocation Schedule. 

 

  1. Air Conditioning.  WCS shall provide air conditioning service to the Premises consistent with telecommunications industry standards and shall be responsible for repairing and maintaining the air conditioning equipment.

 

  1. Lighting.  WCS shall provide common overhead lighting for the Premises and shall be responsible for repairing and maintaining the common overhead lighting system. 

 

  1. Customer’s Covenants and Warranties.  Customer hereby covenants and warrants:

 

  1. To keep the Equipment Space and the Equipment in good order, repair and condition throughout the Term, to provide WCS with full and free access to the Equipment at all times, and to promptly and completely repair all damage to the Premises caused by Customer;

 

  1. To comply with federal, state and municipal laws, orders, rules and regulations applicable to its activities and the Equipment;

 

  1. Not to disrupt, adversely affect or interfere with WCS or other providers of services in the Premises or with any occupant’s use and enjoyment of its equipment, its leased/occupied premises or the common areas of the Premises;

 

  1. To pay its monthly license fee when due and to provide prompt written notice to WCS if such license fee payment is disputed;

 

  1. To comply with the limitations on permissible Equipment and use of the Premises as set forth in Section 1 of this Addendum;

 

  1. That it has obtained or will obtain, at Customer’s sole reasonable cost and expense and prior to the installation of any of Customer’s Equipment, from all applicable public and/or private authorities, all leases, licenses, authorizations, permits, rights of way, building access agreements and easements necessary to operate, maintain and repair Customer’s Equipment within the Premises.  Customer further represents and warrants that it will maintain all such authorizations throughout the term of this Agreement.

 

  1. Indemnification.  In addition to and without limiting any other provision of the Agreement or this Addendum, Customer and WCS shall protect, defend, indemnify, and hold each other, its principals, officers, directors, agents, contractors, and employees harmless from and against any loss, cost, damage, liability, claims and expenses of any kind arising directly or indirectly from the installation, operation, use, maintenance and/or repair of Customer’s or WCS’s Equipment or the equipment of its other Customers , or from Customer’s or WCS’s or any of Customer’s or WCS’s employees’, subcontractors’, or agents’ acts or omissions including, but not limited to, reasonable attorneys’ fees and court costs, except to the extent such loss, damage, cost or expense is due to the gross negligence or willful misconduct of WCS, Customer  or its employees, contractors, or agents.  The provisions of this Section 14 shall survive termination of the Agreement.

 

  1. Insurance.  Notwithstanding any other provision of the Agreement or this Addendum, Customer and WCS will maintain throughout the term of the Agreement the following insurance coverage with a licensed insurance company rated A- or better by A.M. Best:  (a) Worker’s Compensation Insurance to comply with the state laws in which the Equipment Space is located; (b) Commercial General Liability  shall: (a) contain blanket contractual liability coverage that covers  Customer’s ’s liabilities arising out of the Agreement and/or this Addendum; (b) have a single limit of not less than one million dollars ($1,000,000), an aggregate limit of not less than two million dollars ($2,000,000) and include umbrella or excess liability insurance with a combined single limit of not less than three million dollars ($3,000,000); (c) All risk property insurance in an amount equal to the replacement cost of all Equipment utilized by the Customer. WCS and the building owner/landlord shall be added as an Additional Insured on Customer’s policies and Customer’s policies shall waive all rights of subrogation.  All insurance carried by Customer and WCS shall be primary and non-contributory with any insurance carried by WCS and Customer or the building owner/landlord. Customer and WCS shall provide certificates of insurance upon written request.

 

Customer and WCS shall ensure all agents/contractors entering the Premises will maintain the levels of insurance stated above. Insurance described above shall be maintained by Customer and WCS throughout the term of the Agreement and any period during which any claims arising from this Addendum or the Agreement are or may be outstanding.  Upon Customer’s default in obtaining or delivering any such policy or certificate of insurance or Customer’s failure to pay the premiums therefore, WCS may (but shall not be obligated to) secure or pay the premium for any such policy and charge Customer the reasonable cost of such premium, which Customer agrees to pay, or WCS may terminate the Agreement, in whole or in part, without liability to Customer.

 

  1. Liens.  Customer shall not permit any mechanic’s, material men’s or other liens to be filed against all or any part of the Premises, Equipment Space or Facilities, by reason of or in connection with any repairs, alterations, improvements or other work contracted for or undertaken by Customer.

 

  1. Customer shall, at WCS request, provide WCS with enforceable, conditional and final lien releases (or other reasonable evidence demonstrating protection from liens) from its contractors or other parties performing such work. WCS shall have the right at all reasonable times to post on the Premises and record any notices of non-responsibility which it deems necessary for protection from such liens. If any such liens are filed, Customer shall, at its sole cost, within thirty (30) days after filing thereof, cause such lien to be released of record or bonded so that it no longer affects title to the Premises, Equipment Space or Facilities. If Customer fails to cause such lien to be so released or bonded within such thirty (30) day period, WCS may, without waiving its rights and remedies based on such breach, and without releasing Customer from any of its obligations, cause such lien to be released or bonded.  Customer shall reimburse WCS, within ten (10) business days after receipt of invoice from WCS, any sum paid by WCS to obtain such bond or release.

 

  1. Customer acknowledges that all of Customer’s Equipment on the Premises is hereby subject to a lien in favor of WCS to the extent of any unpaid charges or expenses owed to WCSWCS and Customer and Customer hereby grants WCS a security interest with respect to Customer’s Equipment. The security interest in the Equipment may be utilized by WCS to secure payment for any unpaid charges and/or expenses owed by Customer to WCS and may be enforced under Article 9 of the Uniform Commercial Code.

 

  1. Subcontractors.  Customer may subcontract any portion of work within the Premises contemplated by this Agreement to any entity competent to perform such work.  However, Customer must obtain WCS written approval which shall not unreasonably withheld, before utilizing any subcontractor to perform any activities within the Premises under this Agreement and provide evidence that such subcontractor maintains the same or additional insurance coverage as required of Customer under this Agreement.  In no event shall such subcontract relieve Customer of any of its obligations or liabilities under this Agreement.

 

  1. Termination.

 

  1. Termination for Breach.  As provided in the Agreement and subject to the general notice and cure periods set forth in the main body of the Agreement as may be modified or further detailed below, either party may terminate the Agreement, including this Colocation Addendum, in whole or in part, if the other party fails to comply with a material provision hereunder. If WCS terminates the Agreement for Customer’s uncured breach, Customer shall be liable for any early termination charges as set forth in Section VIII of the Agreement, in any Service Schedule, in any Order Form, and Section 18(D) below.  Without limiting any other remedies of Customer hereunder, or under applicable law or in equity, If Customer terminates this Agreement for WCS’s uncured breach, Customer shall not be liable for any early termination charges as set forth in this Service Schedule, in any Order Form for a product listed in this Service Schedule, and Section 18(D) below or other related charges.

 

  1. Events of Material Breach.  Events constituting failure to comply with a material provision of this Agreement, and the cure periods applicable in such events, include, but are not limited to:

 

  1. Interference or damage caused to WCS Facilities or other equipment or facilities at the Premises by the installation, operation, use, maintenance, replacement and/or repair of the Equipment, which breach must be cured within twenty-four (24) hours of receipt of WCS’s written notice of such breach or an extended period as mutually agreed to in writing by the parties.

 

  1. Failure by Customer to pay the undisputed License Fees or any charges under the Agreement, this Addendum, or any other WCS Service Exhibit, and interest as and when due, which breach must be cured as provided in the Agreement.

 

  1. If Customer abandons or deserts the Equipment during the applicable Colocation License Term or Customer removes from the Premises (and does not replace or substitute equipment for) all of the Equipment for which breach there is no cure period.

 

  1. Customer’s failure to complete all initial installation activities within one (1) month of the Effective Date of the Colocation Schedule, for which breach there is no cure period unless otherwise mutually agreed to in writing by both parties.

 

  1. Failure to observe the use provisions and limitations on permissible Equipment as set forth in this Addendum, including Section 1 above, which breach must be cured immediately upon written notice.

 

  1. Cancellation/abandonment of the site described in the Colocation Schedule either prior to or after Customer has taken possession of the Equipment Space and/or WCS has begun the build-out of the requested space, for which breach there is no cure period.

 

  1. WCS or Customer’s insolvency, bankruptcy, assignment for the benefit of creditors, appointment of a trustee or receiver or similar event if such proceeding is not dismissed within thirty (30) days of filing.

 

  1. Upon Termination.  Immediately upon termination of the Agreement or this Colocation Addendum, unless otherwise set forth in the Agreement or this Addendum, Customer shall remove all of its Equipment from the Premises without demand or notice from WCS, but subject however to Customer's complying with Section 7 above.  Customer shall indemnify WCS against, and hold WCS harmless from, all of WCS's losses, damages, costs and expenses (including reasonable attorneys' fees) incurred in connection with Customer Equipment remaining in the Premises after the effective termination date, including, without limitation, claims and costs arising out of the presence of such Equipment in the Premises and WCS's storage, removal, and disposal of such Equipment.  Customer acknowledges that leaving Equipment in or at the Premises after the effective termination date will cause WCS to bear additional costs and interfere with WCS's business planning, and that forty-five (45) days from such termination date is a reasonable timeframe for Customer to remove its Equipment.  Therefore, WCS may treat any Customer Equipment remaining in the Premises forty-five (45) days or more after the effective termination date as abandoned,,and Customer waives all claims for or in connection with such Equipment.  WCS may dispose of such Equipment in any manner in WCS's sole discretion without any liability or obligation to Customer in connection with such Equipment or any data stored thereon.  Neither this Section 18(C) nor any action by WCS hereunder shall affect Customer's other obligations or either party’s rights and remedies.

 

  1. Communication Facilities.  Notwithstanding anything contained herein to the contrary, in the event WCS is required to construct and/or acquire special facilities or equipment in connection with providing the Equipment Space to Customer, Customer acknowledges and agrees that WCS may therefore incur significant costs and expenses in preparing such Equipment Space to Customer.  In addition to any other rights and remedies WCS may have at law, in equity or as provided herein, Customer agrees that if Customer cancels this Agreement, this Addendum, or the Colocation Schedule after signature but prior to the Start of Service Date, Customer shall, in addition to its other payment obligations under this Addendum, reimburse WCS for all reasonable costs and expenses WCS incurred in constructing and/or acquiring such special facilities or equipment provided that, upon Customer’s written request, WCS provides written proof to Customer of the costs and expenses incurred by WCS for the work performed as described in this Section.

 

  1. Early Termination Charge.   

 

  1. Prior to Start of Service.  In addition to any other rights and remedies WCS may have at law or in equity, including those set forth in Section 18(c) above, Customer agrees that, if Customer cancels, terminates or breaches the Colocation Addendum after execution of the Colocation Schedule but prior to the Start of Service Date, Customer shall pay WCS an early termination charge in an amount equal to two (2) months of the License Fees set forth in the Colocation Schedule(s). 

 

  1. On or After Start of Service.  Except as otherwise required by law and the terms and conditions of the Agreement, if, after the Start of Service Date, Customer: (a) commits and fails to cure (to the extent cure is permitted herein) a material breach of the Agreement or this Addendum, including any Colocation Schedule; or (b) Customer cancels or terminates the Agreement, this Addendum, or any Colocation Schedule at any time before completion of the Term or any renewal Term, then WCS may, after providing notice to its determined course of action, elect to pursue one or more of the following courses of action at its sole discretion: (i) terminate the Agreement and/or any Colocation Schedule, whereupon all License Fees if applicable, including all non-recurring charges, for the remaining Term (or renewal Term, if applicable) are immediately due and payable if applicable, and terminate any related WCS services pursuant to the terms and conditions of the Agreement, whereupon all early termination charges applicable to such services are also due; (ii) take immediate appropriate action to enforce payment, including, without limitation, suspension or discontinuance of the use of or access to the Premises, Equipment Space, or Facilities or any part thereof consistent with the terms and conditions of the Agreement, including discontinuing all services to such Equipment Space or Customer Equipment and denying Customer the right to remove Customer’s Equipment from the Premises; (iii) take immediate and appropriate action to exercise the default mechanisms pursuant to Article 9 of the Uniform Commercial Code; and/or (iv) pursue any other remedies as may be available at law or in equity.  Any termination of this Agreement, any Colocation Schedule or any related services by WCS shall not be construed as an exclusive remedy and shall not preclude or waive WCS’s right to pursue any other available remedies.  It is agreed that WCS damages in the event of cancellation or termination shall be difficult or impossible to ascertain.  The provisions of this Section 18 are intended, therefore, to establish liquidated damages in the event of such event and are not intended as a penalty.

 

 

  1. Damages Limitation and Disclaimer. IN NO EVENT SHALL WCS OR CUSTOMER BE LIABLE TO THE OTHER OR WCS TO CUSTOMER’S END USERS, , OR WCS OR CUSTOMER TO ANY OTHER THIRD PARTY FOR ANY INCIDENTAL, INDIRECT, SPECIAL, CONSEQUENTIAL, EXEMPLARY, OR PUNITIVE DAMAGES, INCLUDING, WITHOUT LIMITATION, ANY LOST PROFITS OR REVENUE, LOST GOODWILL, OR LOST BUSINESS, ARISING UNDER OR AS A RESULT OF THE THIS ADDENDUM, EVEN IF WCS HAS BEEN  OR CUSTOMER HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OR EVEN IF DUE TO WCS’S OR CUSTOMER’S OWN NEGLIGENCE.  FURTHERMORE, IN NO EVENT WILL WCS OR CUSTOMER BE LIABLE TO THE OTHER FOR ANY DAMAGES, DIRECT OR INDIRECT, ARISING OUT OF CUSTOMER’S OR WCS’S USE OF THE PREMISES OR THE SERVICES PROVIDED HEREUNDER, UNLESS SUCH DAMAGES ARE THE DIRECT RESULT OF WCS’S OR CUSTOMER’S GROSS NEGLIGENCE OR WILLFUL MISCONDUCT.  IN ANY EVENT, WCS’S AND CUSTOMER’S MAXIMUM LIABILITY UNDER THIS ADDENDUM WITH RESPECT TO ANY CLAIM ASSOCIATED WITH OR ARISING OUT OF THIS ADDENDUM AND THE SERVICES AND LICENSE PROVIDED UNDER THIS ADDENDUM SHALL NOT EXCEED THE TOTAL LICENSE FEES PAID TO WCS BY CUSTOMER UNDER THE COLOCATION SCHEDULE IN THE PRIOR FOUR (4) MONTH PERIOD, IMMEDIATELY PRECEEDING THE EVENT GIVING RISE TO THE CLAIM FOR ANY DAMAGES.

 

  1. Assignment.  In addition to and without limiting any other provision of the Agreement or this Addendum, Customer shall not assign, transfer or otherwise encumber any interest it has hereunder or may have in the Equipment Space or this Addendum or delegate its duties hereunder  without the prior, written consent of WCS.  This Addendum shall inure to the benefit of and be binding on all successors and permitted assigns.  Any assignment in contravention of these provisions shall be null and void.