Retail colocation agreement

Colocation services agreement

The Parties agree as follows:

1. 1Definitions and interpretation

   1. 1.1

      In this agreement:

      1. (a)“Access List” means the list of individuals authorised by the Customer to enter the Data Centre, kept under clause 5.2;
      2. (b)“Affiliate” means any entity that controls, is controlled by, or is under common control with a Party, where control means the ownership of more than half of the voting rights or the power to direct management;
      3. (c)“Business Day” means a day other than a Saturday, Sunday or public holiday in [country];
      4. (d)“Cage” means a lockable, physically separated area of a Hall for the Customer’s exclusive use;
      5. (e)“Commencement Date” means, for each Order Form, the date determined under clause 4.4;
      6. (f)“Committed Power” means the maximum electrical load, in kilowatts (kW), that the Customer may draw in each Rack or Cage, as stated in the Order Form;
      7. (g)“Cross-Connect” means a physical cable connection between the Customer Equipment and another customer, a network carrier or a meet-me room;
      8. (h)“Customer Equipment” means the equipment that the Customer or anyone on its behalf places in the Space;
      9. (i)“Data Centre” means the Provider’s facility at [address], and “Hall” means a data hall within it;
      10. (j)“Fees” means the fees set out in an Order Form and the Price Schedule;
      11. (k)“Order Form” means an order for Services in the form of Schedule 1, signed by both Parties;
      12. (l)“Price Schedule” means Schedule 2;
      13. (m)“Rack” means a cabinet for IT equipment of the size stated in the Order Form;
      14. (n)“Remote Hands” means on-site tasks performed by the Provider’s staff on the Customer’s instruction, such as power cycling, visual checks, swapping parts supplied by the Customer and patching cables;
      15. (o)“Services” means the services described in clause 3.1 and ordered in an Order Form;
      16. (p)“Site Rules” means the rules summarised in Schedule 3, together with the detailed rules the Provider issues under clause 5.4;
      17. (q)“SLA Schedule” has the meaning given in clause 8.1; and
      18. (r)“Space” means the Racks, Cages or other areas allocated to the Customer under an Order Form.
   2. 1.2

      Headings do not affect interpretation. “Including” means including without limitation. References to clauses, sections and Schedules are to those of this agreement, and the Schedules form part of it.

2. 2Structure of this agreement

   1. 2.1

      This agreement consists of these master terms, the Schedules and each Order Form. Each Order Form forms a separate contract for the Services it describes, on the terms of this agreement. The Provider has no obligation to provide a Service until an Order Form for it has been signed.

   2. 2.2

      If the documents conflict, they take precedence in this order: the Order Form, but only where it expressly identifies the provision of these master terms that it varies; these master terms; the SLA Schedule; and the other Schedules and the Site Rules.

3. 3Services

   1. 3.1

      The Provider shall provide the Services set out in each Order Form, which may include:

      1. (a)Space in a Hall, in Racks or a Cage;
      2. (b)power to each Rack or Cage up to the Committed Power, through the number of feeds stated in the Order Form;
      3. (c)cooling sufficient to keep the Space within the environmental ranges stated in the SLA Schedule;
      4. (d)physical security, including [staffed security 24 hours a day], electronic access control and CCTV;
      5. (e)Remote Hands and Cross-Connects, on request, at the rates in the Price Schedule; and
      6. (f)[other services, such as storage or loading bay use].
   2. 3.2

      The Provider shall perform the Services with reasonable skill and care, in accordance with good industry practice and applicable law. It may change the way it provides them, including by replacing plant or suppliers, if the change does not materially reduce the Services or the service levels.

   3. 3.3

      The Customer’s right to use the Space is a contractual right to receive services. It does not create a lease or any other interest in land, and the Provider keeps control of the Data Centre at all times.

   4. 3.4

      The Provider may, on at least [30] days’ written notice and at its own cost, move the Space to an equivalent location in the Data Centre where reasonably necessary for its operation, planning the move with the Customer to keep interruption to a minimum.

4. 4Order Forms and commencement

   1. 4.1

      The Customer may order Services by an Order Form in the form of Schedule 1, which becomes binding when both Parties have signed it.

   2. 4.2

      Each Order Form shall state at least the Space, the Committed Power, the pricing model chosen under clause 7.4, the Fees, the Initial Term and the target Commencement Date.

   3. 4.3

      Remote Hands and Cross-Connects may also be ordered through the Provider’s [customer portal / ticketing system]. A request accepted by the Provider is treated as an Order Form at the rates in the Price Schedule.

   4. 4.4

      When the Space is ready, the Provider shall notify the Customer in writing. The Commencement Date is the earlier of the date stated in that notice and the date on which the Customer first installs Customer Equipment in the Space.

   5. 4.5

      If the Commencement Date has not occurred within [number] days after the target Commencement Date for reasons within the Provider’s control, the Customer shall receive a credit of [one day’s recurring Fees] for each further day of delay. If the delay exceeds [number] days, the Customer may cancel the Order Form by written notice and receive a refund of all Fees and deposit paid under it.

5. 5Installation, access and Site Rules

   1. 5.1

      The Customer shall install the Customer Equipment in accordance with the Site Rules and the Provider’s reasonable instructions. Fees are payable from the Commencement Date whether or not any Customer Equipment has been installed.

   2. 5.2

      The Customer shall keep its Access List up to date and remove a person promptly when that person no longer needs access. Only people on the Access List, showing valid photo identification, may enter unescorted. Other visitors must be booked in advance and escorted.

   3. 5.3

      The Provider may refuse entry to, or remove, any person who breaches the Site Rules or who in its reasonable opinion poses a risk to safety, security or the operation of the Data Centre.

   4. 5.4

      The Customer shall comply, and ensure that its personnel, contractors and visitors comply, with the Site Rules, and is responsible for their acts and omissions at the Data Centre as if they were its own. The Provider may update the Site Rules on [30] days’ written notice, or immediately where required for safety, security or compliance with law, provided that no update materially reduces the Customer’s rights.

6. 6Customer Equipment

   1. 6.1

      The Customer Equipment remains the property of the Customer or its financiers or lessors. Nothing in this agreement gives the Provider ownership of or any security interest in it.

   2. 6.2

      The Customer is responsible for installing, operating, maintaining and insuring the Customer Equipment, which shall:

      1. (a)comply with the Provider’s cabling and labelling standards and carry the safety markings required by law;
      2. (b)not exceed the floor loading of [number] kg/m² or the weight limit per Rack stated in the Order Form; and
      3. (c)where two power feeds are provided, be connected to both through dual power supplies wherever possible.
   3. 6.3

      The Customer shall use the Space only to house IT and network equipment for lawful purposes, and shall not store packaging, combustible materials or hazardous substances in it.

   4. 6.4

      Where Customer Equipment poses an imminent risk to people, the Data Centre or other customers’ equipment, the Provider may disconnect or power it down. The Provider shall notify the Customer beforehand where practicable, and otherwise promptly afterwards, and shall reconnect once the risk has been removed.

7. 7Power

   1. 7.1

      The Provider shall deliver power to each Rack or Cage up to the Committed Power, at the voltage and with the connectors stated in the Order Form.

   2. 7.2

      The Customer shall not draw more than the Committed Power. Where power is delivered through two feeds, the combined load on both shall not exceed the Committed Power, so that either feed can carry the whole load if the other fails.

   3. 7.3

      If the Customer’s measured load exceeds the Committed Power for more than [number] [minutes / hours] in a month, the Provider may charge for the excess at the overage rate in the Price Schedule, require the Customer to reduce its load or order more Committed Power within [number] Business Days, and, where the excess creates an imminent risk, act under clause 6.4.

   4. 7.4

      Power is charged under one of the following models, as selected in each Order Form:

      1. (a)Alternative A (metered power): a monthly fee for the Space and a monthly power reservation fee per kW of Committed Power, plus the energy consumed, measured in kilowatt-hours (kWh) at the Provider’s meters on the Customer’s circuits, multiplied by [the PUE factor / an overhead factor of [number]] and by the energy rate in the Price Schedule; or
      2. (b)Alternative B (all-in power): a single monthly fee per kW of Committed Power that includes the Space, cooling and all energy consumed up to the Committed Power, subject only to the energy price adjustment in clause 10.3.
   5. 7.5

      For metered power, the energy rate is the Provider’s cost per kWh of electricity supplied to the Data Centre, including [energy, network charges, energy taxes and levies, and guarantees of origin], [without mark-up / plus a margin of [number]%]. The Provider shall give reasonable evidence of its calculation on request.

   6. 7.6

      The Provider’s meters are the basis for metered charges. The Customer may ask for a meter to be tested. If the error exceeds [number]%, the Provider bears the cost of the test and corrects the charges for up to [number] months back; otherwise the Customer bears the cost.

8. 8Service levels

   1. 8.1

      The Provider shall provide the Services in accordance with the service levels and service credits in the service level schedule attached to or referred to in the Order Form (the “SLA Schedule”).

   2. 8.2

      Service credits are a price adjustment reflecting the reduced value of the Services and are the Customer’s sole financial remedy for a failure to meet a service level, without affecting its right to terminate under clause 16.3.

   3. 8.3

      Planned maintenance carried out with the notice and within the limits set by the SLA Schedule is not a failure to meet a service level.

9. 9Fees and invoicing

   1. 9.1

      The Customer shall pay the Fees set out in each Order Form and the Price Schedule. The Provider shall invoice one-time fees on signature of the Order Form, recurring fees monthly in advance from the Commencement Date, and metered energy, Remote Hands and other usage-based charges monthly in arrears. Fees for part of a month are calculated pro rata.

   2. 9.2

      Invoices are payable within [30] days of the invoice date, in [currency]. Fees are exclusive of value added tax, which the Customer shall pay in addition at the applicable rate or account for under the reverse-charge mechanism where it applies.

   3. 9.3

      Overdue amounts bear interest from the due date until payment at [the statutory late-payment rate in [country] / [number]% per year above [reference rate]].

   4. 9.4

      If the Customer disputes an invoice in good faith, it shall notify the Provider in writing with reasons within [15] days of the invoice date and pay the undisputed part by the due date. An amount disputed in accordance with this clause is not treated as overdue for the purposes of section 13 while the dispute continues.

10. 10Indexation

    1. 10.1

       The recurring Fees, other than metered energy charges, shall be adjusted on [1 January each year / each anniversary of the Commencement Date] by the percentage change in [index, for example the national consumer price index for [country] published by [statistics authority]] over the most recent 12-month period published [, subject to a minimum of [number]% and a maximum of [number]%].

    2. 10.2

       If the index stops being published or its basis changes materially, the Provider shall use the published index that most closely replaces it, adjusted so that clause 10.1 has as nearly as possible its original effect.

    3. 10.3

       Where all-in power under clause 7.4(b) applies, if the Provider’s average cost per kWh for the Data Centre over a calendar quarter differs by more than [number]% from the baseline in the Price Schedule, the Provider may adjust the energy component of the all-in fee in proportion, upwards or downwards, on [30] days’ written notice with supporting evidence.

11. 11Deposit

    1. 11.1

       Before the Commencement Date of each Order Form, the Customer shall pay a deposit of [amount / [number] months’ recurring Fees] or provide [a bank guarantee / a parent company guarantee] for the same amount in a form reasonably acceptable to the Provider.

    2. 11.2

       The Provider may apply the deposit to any undisputed amount more than [number] days overdue. The Customer shall restore it within [10] Business Days of being notified.

    3. 11.3

       The Provider shall return the deposit, less any amount applied under clause 11.2, within [30] days after the later of the end of the last Order Form and the removal of all Customer Equipment under section 17. The deposit [does not bear interest / bears interest at [rate]].

12. 12Term and renewal

    1. 12.1

       This agreement starts on the date at the top of it and continues while any Order Form is in force. When no Order Form has been in force for [six] months, either Party may end it by written notice.

    2. 12.2

       Each Order Form continues for the initial term stated in it, counted from its Commencement Date (the “Initial Term”).

    3. 12.3

       At the end of the Initial Term, an Order Form renews automatically for successive periods of [12] months (each a “Renewal Term”) unless either Party gives written notice of non-renewal at least [90] days before the end of the current term.

    4. 12.4

       The Provider may change the recurring Fees for a Renewal Term by written notice given at least [30] days before the last date for notice of non-renewal under clause 12.3.

13. 13Suspension

    1. 13.1

       If an undisputed amount remains unpaid [number] days after its due date, the Provider may give written notice of non-payment. If it is still unpaid [10] Business Days after that notice, the Provider may, by further written notice:

       1. (a)suspend access for the Customer’s personnel, other than escorted access needed to protect the Customer Equipment;
       2. (b)suspend Remote Hands, Cross-Connect work and the acceptance of new orders; and
       3. (c)if the amount remains unpaid [number] days after suspension under paragraph (a), and after a final written warning of at least [number] Business Days, suspend power to the Customer Equipment.
    2. 13.2

       The Provider may also suspend any Service immediately, to the extent and for as long as necessary, to prevent an imminent risk to safety, security or the integrity of the Data Centre, or to comply with law.

    3. 13.3

       Fees continue to accrue during a suspension under clause 13.1. The Provider shall restore the Services within [one] Business Day after the overdue amount and interest have been paid in full.

14. 14Liability

    1. 14.1

       Nothing in this agreement limits or excludes either Party’s liability for death or personal injury caused by its negligence, for fraud, [for gross negligence or wilful misconduct,] or for any liability that cannot be limited or excluded by law.

    2. 14.2

       Subject to clause 14.1, neither Party is liable to the other for loss of profit, revenue, business, contracts or goodwill, loss of anticipated savings, loss or corruption of data, or any indirect or consequential loss.

    3. 14.3

       Subject to clauses 14.1 and 14.4, each Party’s total liability under or in connection with this agreement and all Order Forms in any contract year is limited to [the Fees paid and payable in the [12] months before the event giving rise to the claim / [amount]].

    4. 14.4

       The limit in clause 14.3 does not apply to the Customer’s obligation to pay the Fees. Liability for physical damage to the other Party’s property is limited to [amount] per event [instead of the limit in clause 14.3].

    5. 14.5

       The Provider does not access, operate or back up the Customer’s systems or data. The Customer is responsible for its own redundancy, back-ups and disaster recovery.

15. 15Insurance

    1. 15.1

       The Provider shall insure the Data Centre buildings and plant for their reinstatement value. The Customer shall insure the Customer Equipment for its full replacement value. Each Party shall maintain general liability insurance of at least [amount] per event, with reputable insurers, and provide evidence of it on request.

    2. 15.2

       [Each Party shall look first to its own property insurance for loss of or damage to its own property and shall procure that its insurers waive rights of subrogation against the other Party, to the extent available on reasonable terms.]

16. 16Termination

    1. 16.1

       Either Party may terminate an Order Form, or this agreement with all Order Forms, by written notice with immediate effect if the other Party commits a material breach and, where it can be remedied, fails to remedy it within [30] days after written notice, or if the other Party becomes insolvent, enters into any insolvency or similar procedure, or ceases to carry on business.

    2. 16.2

       The Provider may terminate the affected Order Forms by written notice if any undisputed amount remains unpaid [number] days after the Provider has suspended Services under clause 13.1.

    3. 16.3

       The Customer may terminate an affected Order Form where the SLA Schedule gives a right to do so for repeated or prolonged service failures, or under clause 4.5 or clause 21.2.

    4. 16.4

       If the Customer ends an Order Form before the end of its Initial Term other than under clause 16.1 or clause 16.3, or the Provider terminates it under clause 16.1 or clause 16.2, the Customer shall pay an early termination charge equal to [[number]% of] the recurring Fees that would have been payable for the rest of the Initial Term.

    5. 16.5

       Termination of one Order Form does not affect any other. Termination of this agreement ends all Order Forms.

17. 17End of an Order Form and removal of equipment

    1. 17.1

       By the date an Order Form ends, or within [number] Business Days afterwards, the Customer shall remove all Customer Equipment from the Space and return it in the condition in which it was provided, fair wear and tear excepted. [The Provider may require undisputed overdue Fees to be paid before Customer Equipment is removed, to the extent permitted by law.]

    2. 17.2

       If Customer Equipment remains after the period in clause 17.1, the Customer shall pay a holding charge of [number]% of the last recurring Fees for that Space for each month or part month until removal. After at least [30] days’ further written notice, the Provider may remove and store the Customer Equipment at the Customer’s cost and risk, and after a further [number] days’ written notice may sell or dispose of it, applying any proceeds to amounts owed and accounting to the Customer for the balance.

    3. 17.3

       The Provider shall help with decommissioning on request, at the Remote Hands rates. Accrued rights are not affected by the end of an Order Form, and sections 9, 14, 17, 18, 20 and 23 and clause 11.3 continue to apply after this agreement ends.

18. 18Confidentiality

    1. 18.1

       Each Party shall keep confidential the terms of this agreement and all non-public information about the other Party that it receives under it, using it only to perform this agreement, except for disclosure to its Affiliates, professional advisers, financiers and insurers bound by confidentiality, or as required by law. The Customer shall also keep confidential the security arrangements and layout of the Data Centre and the identity of other customers, and shall not photograph or record anything except its own Space. This section continues for [three] years after this agreement ends.

19. 19Introduction through the platform

    1. 19.1

       The Parties acknowledge that they were introduced through AICapacity and that the terms of use of AICapacity that each of them has accepted continue to apply to any agreement between them arising from that introduction. AICapacity is not a party to this agreement and has no rights or obligations under it.

20. 20Personal data

    1. 20.1

       To run access control and security, the Provider processes personal data about the Customer’s personnel, contractors and visitors, including Access List entries, identity checks, visitor logs and CCTV recordings, as well as contact details for administering this agreement. Each Party acts as an independent controller of the personal data it receives and shall comply with applicable data protection law, including the General Data Protection Regulation (EU) 2016/679.

    2. 20.2

       The Customer shall give the Provider’s privacy notice to the people it places on the Access List or sends to the Data Centre, and share only the personal data needed for access and security. The Provider shall keep visitor logs and CCTV recordings no longer than [[number] months and [number] days respectively / its published retention periods], except where needed to investigate an incident.

    3. 20.3

       The Provider does not access or process data stored on the Customer Equipment. If a Service would require it to process personal data on the Customer’s behalf, the Parties shall first sign a data processing agreement meeting Article 28 of the General Data Protection Regulation.

21. 21Force majeure

    1. 21.1

       Neither Party is liable for a delay or failure caused by an event beyond its reasonable control, including natural disaster, war, terrorism, epidemic, governmental action, or a failure of the public grid or public networks outside the Data Centre lasting longer than the Data Centre’s backup systems are designed to cover, provided that it notifies the other Party promptly and takes reasonable steps to limit the effects. This clause does not excuse payment obligations.

    2. 21.2

       Fees do not accrue for a Service while it is prevented by a force majeure event. If the event continues for more than [60] consecutive days, either Party may terminate the affected Order Form by written notice.

22. 22General

    1. 22.1

       This agreement is the entire agreement between the Parties about its subject matter. A variation is effective only if in writing and signed by both Parties. A failure or delay in exercising a right is not a waiver of it. Nothing in this agreement creates a partnership or joint venture.

    2. 22.2

       The Customer may not assign this agreement without the Provider’s prior written consent, which shall not be unreasonably withheld. The Provider may assign it to an Affiliate or to a buyer of the Data Centre who agrees in writing to be bound by it, and may assign its rights to payment to its financiers. The Provider may use subcontractors and remains responsible for them.

    3. 22.3

       If any provision is found invalid, the rest continues in force, and the Parties shall replace it with a valid provision as close as possible to its intended effect.

    4. 22.4

       Notices shall be in writing and sent by email to the addresses in the Order Form or below, with a copy by post or courier where the notice concerns a breach, suspension or termination. This agreement may be signed in counterparts and by electronic signature.

23. 23Governing law and disputes

    1. 23.1

       This agreement and any dispute or claim arising out of or in connection with it are governed by the laws of [governing law].

    2. 23.2

       Any dispute arising out of or in connection with this agreement shall be finally resolved by [arbitration under the rules of [arbitral institution], with the seat of arbitration in [city] and the proceedings conducted in English / the courts of [country and city]].