1. ORDERING AND PROVISION SERVICES
Customer may request Leased IT Colocation Space and Services (also "Colocation Space and Services" or "Colocation Services") from Host Color by placing a Service Order, Online Service Order or Phone Service Order. Upon agreement of a Service Order, Host Color shall provide Leased IT Colocation Space and Services to Customer as stated in these Colocation Terms and Conditions (Colocation Agreement).
2. FEES, PAYMENT TERMS & TAXES
2.1 Host Color will start collecting Fees from the Billing Start Date and Customer will be liable for Fees for the full contract term specified in each Service Order. Customer shall pay in full all invoices issued in Customer's Account at https://www.hostcoloreurope.com/accounts/ in the currency specified in the Service Order within thirty (30) days of the date of invoice. Interest shall be charged on past due amounts at the lower of (a) two and a half per cent (2.25%) per month; or (b) the highest rate permitted by applicable law. Unless otherwise agreed, Host Color will invoice monthly in advance for all recurring Fees and at the end of the each 30 day service period for usage-based or non-recurring Fees. Fees will be listed on Service Orders, except for Online Service Orders, which will be subject to Host Color’s list price unless otherwise, agreed with the Customer.
2.2 If the amount of any invoice or any part thereof is disputed by Customer in good faith (a “Disputed Amount”), then Customer must submit a written notice with reasonable supporting documentation within thirty (30) days of the date of the initial invoice on which the Disputed Amount appears, failing which Customer waives all rights to dispute such Disputed Amount and to file any claim. The Parties will work together in good faith to resolve the Disputed Amount within thirty (30) days after receipt of Customer’s notice.
2.3 If Customer's account is past due two (2) or more times in any twelve (12) month period, Host Color may charge Customer a deposit of two (2) months of the then-billable Fees to be held, without interest (the “Deposit”). Host Color may deduct amounts due from the Deposit and will return or credit any remainder upon termination.2.4 All amounts payable by Customer to Host Color under these Colocation Terms and Conditions exclude Taxes. Customer shall be responsible for (a) Taxes related to its activities and the ownership and operation of Customer’s Equipment and (b) Taxes imposed or assessed thereon by any governmental or other authorities.
3. ACCESS TO AND USE OF THE HOST COLOR DATA CENTER AND LEASED IT COLOCATION SPACE
3.1 Subject to these Colocation Terms and Conditions (Colocation Agreement), Customer will have access to the Leased IT Colocation Space twenty-four (24) hours per day, every day of the year. However, Customer shall comply with the Policies, which have been incorporated herein by reference. Host Color may modify the Policies from time to time effective upon notice. Customer may terminate a Service Order for Leased IT Colocation Space, if Host Color modifies the Policies in a way that materially adversely affects Customer’s use of the Leased IT Colocation Space and the Services and if Customer provides written notice of termination within seven (7) days from the date of Host Color’s notice of Policies change.
3.2 Customer may sublicense Leased IT Colocation Space to a sublicensee provided that (a) the terms and conditions of such Sublicense will be no less restrictive than these Colocation Terms and Conditions; (b) Customer will not act, appear to act or claim to act on behalf of Host Color or any landlord of Host Color; (c) Customer will require the Sublicensee to abide by these Colocation Terms and Conditions and the applicable Policies; and (b) Host Color shall not be deemed to have any obligations to any Sublicensee. No Sublicensee shall further sublease any Leased IT Colocation Space. Notwithstanding any act of sublease, Customer remains responsible to Host Color for the fulfillment of all obligations under these Colocation Terms and Conditions, including the payment of all invoices and fees owed under these Colocation Terms and Conditions.
3.3 Customer shall be responsible and liable for all acts or omissions of Customer’s Authorized Persons, associates and for any equipment or services not provided by Host Color. Customer shall compensate for harm or loss, secure agains legal responsibility, defend and hold harmless the Host Color Parties from any and all liability, loss, damages, costs and expenses (including reasonable attorneys’ fees and expenses) for third-party claims brought by, arising from or related to Customer’s Authorized Persons or associates.
3.4 These Colocation Terms and Conditions do not constitute a lease of any real or personal property or a grant of any other real property interest. Customer acknowledges and agrees that for Leased IT Colocation Space and Services provided in any jurisdiction, it is granted only a license to use the Leased IT Colocation Space in accordance with these Colocation Terms and Conditions. These Colocation Terms and Conditions are subject and subordinate to the leases for the Host Color data center and all superior instruments to such leases. Customer’s Equipment will not be construed as fixtures or fittings. Host Color will retain title to all parts and materials used or provided by Host Color in providing the Leased IT Colocation Space and the Services.
4. WARRANTY AND LIMITATION OF LIABILITY
4.1 Each Party represents, warrants and agrees that it will comply with all applicable laws and regulations in connection with these Colocation Terms and Conditions. Host Color represents, warrants and agrees that it shall provide the Leased IT Colocation Space and perform the Services in a professional manner. Customer represents, warrants and agrees that it will maintain throughout the Term the legal right and authority to install, configure, operate and maintain Customer’s Equipment as contemplated by these Colocation Terms and Conditions.
4.2 All Leased IT Colocation Space and Services are provided or performed on an “as is”, “as available”, basis, and customer's use of the Leased IT Colocation Space and Services is solely at its own risk. Except as otherwise set forth in these Colocation Terms and Conditions, Host Color does not make and, as a result of this document, disclaims all warranties including but not limited to express, implied and statutory warranties that the services will be uninterrupted, error-free, or completely secure and the implied warranties of merchantability or satisfactory quality, suitable for a particular purpose and non-infridgement of any third party's intellectual property rights.
4.3 Notwithstanding anything to the contrary in this Colocation Agreement, in no event will either party be liable to the other party for (a) lost profits; (b) loss of business; (c) loss of revenues, except that customer shall be liable for any fees or other amounts owed to Host Color under this Colocation Agreement; (d) loss of data, interruption or corruption of data; (e) any consequential or indirect damages; or (f) any incidental, special, reliance, exemplary or punitive damages (if applicable), even if advised of the possibility of such damages.
4.4 Notwithstanding anything to the contrary in these Colocation Terms and Conditions, Host Color's total liability to Customer in aggregate for the entire term (regardless of whether the claims are brought during or after the term) with respect to all claims arising from or related to the subject matter of these Colocation Terms and Conditions (including attorney's fees) will not exceed the amount actually paid by Customer to Host Color for the one (1) month period immediately preceding the month in which the first claim arose. As a further limitation, Host Color’s maximum liability for any claims relating to the Leased IT Colocation Space and the Services offered or provided by Host Color (a) for a non-reccurring charge only; or (b) as remote hands and management services, shall not exceed the amount of the fee for such Leased IT Colocation Space and Services provided on the occasion giving rise to the claim.
4.5 The limitations set forth in sections 4 (4.3) and 4 (4.4) will apply to all claims and causes of action, regardless of whether in contract, an infringement, strict liability or other argument or position.
4.6. Host Color and Customer each waive the right to bring any claim against the other Party arising out of or in any way relating to an Service Order more than six (6) months after the date such Service Order expires or is terminated. Each Party recognizes and agrees that the warranty disclaimers, limitations of liability and remedy limitations in this Agreement are materially bargained for by Host Color and Customer.
5.1 To be granted Unrestricted Access to Host Color's Data Center, Customer agrees to maintain the following insurance, at its expense, during the Term: (a) Commercial General Liability or Public Liability Insurance with a limit of $1,000,000 per occurrence, $2,000,000 in the aggregate. Such insurance will include coverage for bodily injury and property damage; (b) Workers’ Compensation and Employer’s Liability insurance where required by local statute; and (c) All Risk Property Insurance on a replacement cost basis with limits adequate to cover the value of Customer’s Equipment.
5.2 Customer will provide Host Color with certificates of insurance upon request that evidence the minimum levels of insurance set forth herein, list Host Color as an additional insured or interested party on the Commercial General Liability or Public Liability policy and designate that Customer’s insurance is primary and non-contributory. Customer waives its insurers rights of subrogation on all policies referenced above. Customer will provide at least thirty (30) days prior written notice to Host Color of any non-renewal or cancellation of the policies referenced above.
6. TERM, TERMINATION AND SUSPENSION
6.1 These Colocation Terms and Conditions will commence on the Start Date and will terminate on the date the last Service Order then in effect expires or is terminated. A termination of these Colocation Terms and Conditions shall terminate all Service Order(s).
6.2 Either Party may terminate these Colocation Terms and Conditions by giving written notice to the other Party if the other Party breaches any material term or condition of this Colocation Agreement and fails to cure such breach within twenty (20) days after receipt of such notice. If Customer fails to cure a monetary breach, Customer will be responsible for all collection costs including reasonable attorneys’ fees. If the breach cannot be cured within twenty (20) days, the breaching Party shall be given a reasonable period of time, but not to exceed thirty (30) days after receipt of the notice, to cure the breach, provided that the breaching Party acts promptly and diligently to cure such breach.
6.3 Either Party may terminate this Agreement immediately upon giving written notice to the other Party if such other Party becomes unable to pay its debts as they become due, ceases to do business, enters into a deed of arrangement, undergoes judicial management, commences the process of liquidation, has a receiver appointed or begins winding up or similar arrangements.
6.4 Without limiting Host Color’s rights under Section 6 (6.2), Host Color may suspend the provision of the Leased IT Colocation Space and/or the Services, deny access to and the removal of Customer’s Equipment from the Host Color's data center, if Customer fails to cure any monetary breach of these Colocation Terms and Conditions within twenty (20) days after notice of the same (or within five (5) days after notice of the same in the event Customer’s account is past due on two (2) or more occasions during a twelve (12) month period).
6.5 Host Color may suspend the use of Leased IT Colocation Space and/or provision of the Services if (a) Customer or Customer’s Equipment interferes with Host Color's operation or maintenance of the Host Color's data center or with one or more of Host Color’s other customers' use thereof, and within a reasonable time, not to exceed two (2) hours after being notified by email or phone, Customer fails to (a) cease such interference; (b) provide a plan acceptable to Host Color to cease such interference; or (c) authorize Host Color to take action to cease such interference (billed at Managed Service rates); or (d) in Host Color’s reasonable judgment Customer or Customer’s Equipment has the potential to interfere with Host Color's operation or maintenance of the Host Color's data center or with one or more of its other customers' use thereof, and within a reasonable time, not to exceed forty-eight (48) hours after being notified by e-mail or phone, Customer fails to (e) resolve such potential interference; (f) provide a plan acceptable to Host Color to resolve such potential interference; or (g) authorize Host Color to take action to resolve such potential interference (billed at Managed Service rates). If Host Color suspends the use of Leased IT Colocation Space and Services pursuant to this Section 6 (6.5), unless Host Color has subsequently terminated these Colocation Terms and Conditions as permitted under these Colocation Terms and Conditions, Host Color will reinstate use of Leased IT Colocation Space and resume the discontinued Services as soon as reasonably practical after it is reasonably satisfied that Customer has cured the breach(es) which gave rise to the suspension; and Host Color may charge a reinstatement fee. Further, Host Color may terminate these Colocation Terms and Conditions if Customer’s breach referred to in this Section 6 (6.5) continues for at least seven (7) days or occurs more than three (3) times in any twelve (12) month period.
7. REMOVAL OF CUSTOMER’S PROPERTY
7.1 Customer shall remove all of colocated equipment on the expiry or termination of the applicable Service Order or before its expiry date. Unless Host Color otherwise allowed in written correspondence, failure to remove Customer’s equipment within ten (10) days from the termination of the applicable Service Order will constitute abandonment of Customer’s Equipment under the U.S. laws and Host Color will be entitled to pursue all available legal remedies, including, without limitation and at Customer’s risk and expense: (a) immediately removing Customer’s equipment and storing it at Customer’s expense at an on-site or off-site location; (b) shipping it to Customer at Customer's expense; (c) upon thirty (30) days’ prior written notice to Customer, liquidating it, and retaining the proceeds.
7.2 Subject to Section 7 (7.1), while Customer has no right to use the Leased IT Colocation Space or Services after an Service Order expires or terminates, if Host Color permits Customer to do so in its sole discretion, Customer will remain bound by the Terms of the Service Order and these Colocation Terms and Conditions, including, without limitation, all payment obligations, and such continued use may be terminated by Host Color immediately upon notice.
8. CONFIDENTIAL INFORMATION
8.1 “Confidential Information” means information disclosed by one Party to the other Party; including (a) information identified by the disclosing Party, in writing, as confidential at the time of disclosure; (b) information containing the disclosing Party’s customer base, customer information, technical information, trade secrets, customer communications or proposals, benchmarking information or information relating to its business operations; (c) the design of the Host Color data center, infrastructure, the Leased IT Colocation Space, the Services provided, equipment used at the Host Color data center, the configuration of cables, networks and services at Host Color's data center.
Information is not deemed Confidential Information if it (a) is known to the receiving Party prior to receipt from the disclosing Party from a source other than one having an obligation of confidentiality to the disclosing Party; (b) becomes known to the receiving Party from a source other than one having an obligation of confidentiality to the disclosing Party; (c) becomes publicly known or otherwise ceases to be confidential, except through a breach of these Colocation Terms and Conditions by the receiving Party.
8.2 Neither Party will use or disclose Confidential Information from the other Party without the prior written consent of the other Party except where (a) if in the opinion of counsel, the disclosure is required by applicable law or regulation or by an order of a court or other governmental body having jurisdiction after taking steps to maintain its confidentiality where practicable; or (b) reasonably necessary to be made to that Party’s, or its employees, officers, executives, attorneys, accountants and associates or (c) necessary for a Party to exercise its rights and perform its obligations under these Colocation Terms and Conditions.
8.3 Neither Party grants the other Party the right to use its trademarks, service marks, trade names, copyrights, other intellectual property rights or other designations in any promotion, publication, or press release without the prior written consent of the other Party in each case.
9.1 Unless expressly stated in the Colocation Terms and Conditions, all notices, consents, or approvals required by this Colocation Agreement will be effective only if in writing and sent by (a) Customer using Host Color's Account Management System (https://www.hostcoloreurope.com/accounts/); (b) fax or email (c) certified or registered mail, postage prepaid; or (b) delivery by hand, to the Parties at the addresses designated in writing by the Parties. Unless sent through Host Color's Account Management System (https://www.hostcoloreurope.com/accounts/), notices, consents and approvals under these Colocation Terms and Conditions will be in writing, with signature, and be deemed effective on the date of receipt.
Notwithstanding anything to the contrary in these Colocation Terms and Conditions, notices relating to Policies sent by Host Color shall be presumed to be received on the date of sent by electronic mail or as message in Host Color's Account Management System (https://www.hostcoloreurope.com/accounts/), five (5) days after mailing if sent by regular postal mail.
9.3 Each Party agrees that it has reviewed these Colocation Terms and Conditions, and these Colocation Terms and Conditions shall not be interpreted more strictly against the drafting Party. The section headings and paragraphs in bold are for convenience only and will not be used to interpret these Colocation Terms and Conditions.
9.4 Sections 3 (3.4), 4 (4.3), (4.4) and (4.6), 7, and 9 (9.4) will survive the termination of this Colocation Agreement. Section 8 will survive for two (2) years after termination of these Colocation Terms and Conditions.
9.5 Host Color may permit its subsidiary or other third party, to perform any of Host Color’s obligations as provided for under the terms of this Colocation Agreement. Host Color may transfer these Colocation Terms and Conditions or any of their rights and obligations hereunder with prior notice to Customer. Customer may transfer these Colocation Terms and Conditions or any of its rights and obligations as provided for under the terms of this Colocation Agreement to an Affiliate or to an entity which is acquiring Customer’s business or assets with prior notice to Host Color, and in all such events the person or entity to whom these Colocation Terms and Conditions are assigned by Customer must agree in writing to be bound by all of the terms of these Colocation Terms and Conditions.
9.6 Except for Customer’s obligation to pay amounts owed under these Colocation Terms and Conditions, including Fees, neither Party will be responsible or in any way liable to the other Party, and neither Party will have any termination or other rights, arising out of or relating to a failure by the other Party to perform any of its obligations under this Agreement if such failure is caused by events or circumstances beyond its reasonable control. These events may include but not be limited to acts of God, war, labor strike, fire, flood, earthquake, health epidemic, an act of terror or any law, Service Order, regulation or other action of any governing authority.
9.7 All Service Orders are subject to these Colocation Terms and Conditions. In the event of uncertainty, conflict or inconsistency among the documents comprising these Colocation Terms and Conditions, the documents shall be given a descending Service Order of precedence as follows (a) the Service Order; (b) Terms and Conditions including attachments and exhibits to this Colocation Agreement, other than these Colocation Terms and Conditions; (c) the Policies; and (b) these Colocation Terms and Conditions.
9.8 “Contacts” means business contact data in Host Color's Account Management System and on access lists at Host Color data center containing personal information, private information of a Party, its employees, associates, consultants, contractors, partners or Sublicensees provided to or obtained by the other Party by virtue of the performance of these Colocation Terms and Conditions and whose use, processing or transfer of such data is regulated by law or regulation as “personal data”.
Customer acknowledges that Host Color will, by providing the Leased IT Colocation Space and Services, come into possession of Contacts. Customer acknowledges and agrees that Host Color and its employees or contractors may use, process and/or transfer Contacts in order to: (a) provision of Leased IT Colocation Space and Services; (b) incorporate Contacts into databases controlled by Host Color for the purpose of account management, billing, maintenance, support services, fraud detection and prevention and (c) communicate to Customer by phone, fax, email or post mail regarding products and services of Host Color. Customer has the right to access Contacts upon written notice and have any agreed errors in such Contacts corrected.
9.9 Customer represents, warrants and covenants that Customer: (a) is compliant with applicable Sanction Laws; (b) is not listed, or owned or controlled by an entity or person, on the U.S. Department of Treasury list of Specially Designated Nationals, or located in or organized under the laws of a country subject to United States or European Union embargo (collectively, “Restricted Persons”); (c) is not providing services in connection with these Colocation Terms and Conditions to Restricted Persons, including any Sublicensees; and (b) will not use the Leased IT Colocation Space and Services, or allow them to be used, for any purposes prohibited by applicable Sanction Laws, including, nuclear, chemical, or biological weapons proliferation, or development of missile technology. Notwithstanding any other provision in these Colocation Terms and Conditions, Host Color reserves the right to terminate all the services it provides to Customer and this agreement immediately upon written notice to the Customer if Host Color reasonably determines that Customer is not in compliance with this Section 9 (9.9) or is causing Host Color to be exposed to violations under Sanction Laws.
9.10 Except where otherwise expressly stated in these Colocation Terms and Conditions, and subject to the limitations set forth in Section 4 (Warranty and Limitation of Liability), the rights and remedies provided for herein are cumulative and not exclusive of any rights or remedies that a Party would otherwise have.
The Parties are independent contractors and these Colocation Terms and Services do not establish any relationship of partnership, joint venture, employment, franchise or an organization between them. Neither Party may bind the other or incur obligations on the other’s behalf without the other’s prior written consent. There will be no third party beneficiaries to this Colocation Agreement. No waiver of any breach of any provision of these Colocation Terms and Conditions will constitute a waiver of any prior, concurrent or subsequent breach of the same or any other provisions hereof, and no waiver will be effective unless made in writing and signed by an authorized representative of the waiving Party.
Authorized Person: Each person included on the most recent list of Authorized Persons given to Host Color by Customer in accordance with Host Color’s then-current form and procedures, who may be authorized by Customer to, for example, access an Host Color data center, place Service Orders on an Host Color customer care website or act as Customer’s shipping contact.
Affiliate: As to a Party, any entity controlling, controlled by, or under common control with such Party, where the term "control" and its correlative meanings means the legal, beneficial or equitable ownership, directly or indirectly, of more than fifty percent (50%) of the aggregate of all voting equity interests in an entity.
Agreement: The meaning given to such term in the relevant Service Agreement into which these Colocation Terms and Conditions are incorporated.
Fees: Charges and fees for Leased IT Colocation Space and Services charged to Customer by Host Color, exclusive of Taxes.
Host Color Data Center: The International Business Exchange Centers in which Customer receives Leased IT Colocation Space and Services from Host Color pursuant to an Service Order.
Leased IT Colocation Space: The areas licensed by or made available to Customer with permission to access and use, under this Colocation Agreement and the Service Orders, and as identified in the Service Orders. For each Leased IT Colocation Space, Host Color will determine at all times the exact location in the Host Color data center where the Leased IT Colocation Space will be located.
Service Order: An Service Order for Leased IT Colocation Space or Services prepared by Host Color, or an amendment to a Service Order, which is incorporated into this Colocation Agreement by reference; that describes the Leased IT Colocation Space or Services. Service Orders are not valid until signed by both Parties, except for Online and Phone Service Orders. Host Color is under no obligation to accept a Service Order.
Online Service Order: An Service Order submitted through https://www.hostcoloreurope.com/accounts/, HostColor.com website or by email, considered as effective only after Host Color accepts it in accordance with Host Color’s procedures.
Phone Service Order: An Service Order placed over the phone, where available, will be effective only after Host Color accepts it in accordance with Host Color Europe procedures.
Customer’s Equipment: All network, computer and other equipment provided, owned or controlled by Customer, Customer’s Affiliates, Customer’s Authorized Persons or Associated Entities (including wiring and connections between such equipment and Customer’s demarcation equipment) excluding Cross-Connects or Host Color Europe demarcation equipment.
Billing Start Date: For Leased IT Colocation Space ordered in an Service Order, the Billing Start Date is date specified in the Service Order. If Leased IT Colocation Space and/or a Service are ordered through an Online Service Order placed at https://www.hostcoloreurope.com/accounts/), the Billing Start Date is the date when the Customer's Equipment is installed and connected to Host Color's network or to any external network, or any date within 30 days from the date when and Online Service Order is submitted to Host Color Europe system. If there is no date specified in the Service Order, then the Billing Start Date is the date on which the Leased IT Colocation Space and/or a Service is activated, unless otherwise agreed to by the Parties in the Service Order.
Cross-Connect: A physical interconnect that connects Customer to another tenant of Host Color data center or other party located in the same or in a remote facility.
Services: All intangible or tangible services, products provided by Host Color Europe, specified in a Service Order pursuant to this Agreement.
Sublicensee: A customer of Host Color's Customer who sublicensees or is able to access and use the Leased IT Colocation Space as made available by Customer, partially or in full.
Remote Hands: An onsite technical assistance (or other assistance agreed requested by Customer in written correspondence) provided by Host Color employees, associates or contractors, in accordance with Customer's instructions relating to onsite management, remote management, installation, cabling and/or troubleshooting of Customer’s Equipment.
Policies: Host Color’s procedures, rules, regulations, security practices and policies for the Host Color data center, as amended from time to time.
Taxes: Sales, use, transfer, privilege, excise, consumption tax, Value Added Tax (VAT) or Goods and Services Tax (GST) as applicable, and other similar taxes and duties, whether foreign, national, state or local, however designated, levied or imposed (whether as a deduction, withholding or payment) now in force or enacted in the future, which apply to the Leased IT Colocation Space provided or the Services performed by Host Color for Customer or to Customer for its operations and use of the Leased IT Colocation Space or Services, but excluding taxes on Host Color LLC net income.
Term: The duration of this Colocation Agreement, as determined under Section 6 (6.1) of this Agreement.
Unavailable: The meaning given to such term in the context of a Service Level specified in the Host Color Europe Service Level Agreement.
Sanction Laws: All applicable sanction or embargo laws and regulations from time to time, including trade and economic sanctions maintained by the Treasury Department's Office of Foreign Assets Control (OFAC) and any other enabling legislation or executive Service Order relating thereto.