Nashville Regional Exchange Point
Agreement
This Co-location Space Agreement (hereinafter the "Agreement")
is between Nashville Regional Exchange Point, LLC, a Tennessee Limited
Liability Corporation (hereinafter "NREP") and ______________________________________________,
a ________________________________________ (hereafter "Customer")
who wishes to co-locate one or more servers with NREP.
NREP currently leases a portion of the 13th floor (hereinafter "Premises") of the One American Center office building (hereinafter "Building") at 3100 West End Avenue, Nashville, Tennessee from One American Center Limited Partnership (hereinafter "Landlord") and Customer desires access to the Premises to locate certain network and/or computer equipment (hereinafter "Equipment") in that certain area of the Premises (hereinafter "Space") through NREP per the terms of this Agreement.
NREP is willing to grant Customer a license to occupy the Space and provide certain services in conformity with the applicable specifications set forth hereinafter.
The Space is accepted "AS-IS" by Customer. Customer may use the Space only for the purposes of installing, maintaining, and operating Equipment necessary to support local access communications facilities/links to NREP or to other entities located outside of the Premises.
Only upon the express written consent of NREP may Customer interconnect the Equipment with equipment or services of any entities within the Premises. If Customer should interconnect the Equipment with equipment or services to any entity within the Premises without obtaining the written consent of NREP, Customer shall be in breach of this Agreement and NREP may pursue any legal or equitable remedy, including but not limited to the immediate termination of this Agreement and/or immediate removal of the Equipment.
In connection with the Space made available hereunder, NREP shall perform services which support the overall operation of each Space (e.g., janitorial services, environmental systems maintenance, and power plant maintenance) at no additional charge to Customer. However, Customer shall be required to maintain the Space in on orderly manner and shall be responsible for the removal of trash, packing, cartons, etc. from the Space.
Unless otherwise provided, each visit by Customer to the Space will be deemed to utilize escort services furnished by NREP from the time Customer's Employee(s) sign(s) in upon entering the Premises to the time Customer's Employee(s) sign(s) out upon leaving the Premises.
Customer acknowledges that Customer has only been granted a license to occupy the Space and that Customer has not been granted any real property interests in the Space, the Premises or the Building. In the event that the lease agreement with the Landlord is terminated before the end of the term of this Agreement, Customer agrees to enter into an agreement with said Landlord or, upon the request of NREP, immediately remove its equipment. NREP agrees to use reasonable efforts to assist Customer in obtaining such approvals as Customer may need to obtain from the Landlord.
Customer must obtain prior written approval from both NREP and the Landlord to use other communication facilities within the building (e.g., conduits, riser system, phone room, roof of the building, and antenna) that are not located in the Space or Premises. Some extra cost may be incurred based on the nature of each case.
The term of this agreement shall be for [monthly, one, two] year(s).
Customer's option to renew its license to occupy the Space shall be contingent on the choice by NREP to continue to lease the Premises in which the Space is located for the duration of the Renewal Period, such choice to be exercised at the sole discretion of NREP.
Following the expiration of the Term of each Space or the failure of the Parties to agree to a Renewal Period, Customer's license shall continue in effect on a month-to-month basis upon the same terms and conditions specified herein, unless terminated by either Customer or NREP upon thirty (30) days prior written notice. Upon termination or expiration of the Term for each Space, Customer agrees to remove the Equipment and other property that has been installed by Customer or Customer's agents. In the event such Equipment or property has not been removed within thirty (30) days of the effective termination or expiration date, then Equipment shall be deemed abandoned and Customer shall lose all rights and title thereto.
In the event the Premises becomes the subject of a taking by any authority that has such power, NREP shall have the right to terminate this Agreement. Customer shall have no claim against NREP for any relocation expenses, loss of business, etc. However, nothing contained in this Agreement shall prohibit Customer from seeking any relief or remedy against the taking authority.
Customer shall pay NREP monthly recurring fees (hereinafter "Recurring Fees"), which include charges for use and occupancy of the Space. In addition to any Recurring Fees, Customer shall be charged non-recurring fees for setup of the Space. Setup fee plus first and last month monthly charges due before service begins. Monthly payment is due by the time stated on NREP's invoice. Amounts past due bear an interest at the rate of 1.5% per month. Taxes and third party charges will be stated separately on the invoice. All taxes, fees, and governmental charges shall be paid by Customer.
NREP may increase prices upon 90 days prior written notice.
NREP is not liable for any errors or interruption in service, whether within or outside of NREP's reasonable control. Service may be temporarily unavailable for scheduled maintenance, either by NREP or by third-party providers, or because of other causes.
Customer is responsible for protecting Customer's password and for any authorized or unauthorized use made of Customer's password. Customer will not use or permit anyone to use NREP's service to guess passwords or to access other systems or networks without authorization. NREP will fully cooperate with law enforcement authorities in the detection and prosecution of illegal activity.
Customer is expected to be familiar with and to practice good Internet etiquette (Netiquette). Customer will comply with the rules appropriate to any network to which NREP may provide access. Customer should not post, transmit, or permit Internet access to information Customer desires to keep confidential. Customer is not permitted to post any material that is illegal, libelous, tortuous, or likely to result in retaliation against NREP by offended users. NREP reserves the right to refuse or terminate service at any time. Customer will indemnify NREP and hold NREP harmless from any damage to NREP's business, service, equipment, network, operations, or reputation resulting from Customer's actions, including but not limited to any government actions, acts of vandalism or other retaliation, and any claims of libel, unfair competition, infringement of any patent, copyright, trademark, service mark, or other intellectual property right, violation of privacy, or other tort.
The NREP network may not be used to transact Unsolicited Commercial Email (UCE). This is commonly referred to as SPAM. Customers of NREP may not use, or permit others to use, the NREP network to send UCE. Customers of NREP may not host, or permit hosting of, sites or information that is advertised by UCE from other networks. Customers that transact UCE will be given a verbal or email warning. If another mass email or UCE is sent, they will be given a written warning. A further attempt will cause blocks to be placed on the routers to prevent access to the site or information. The blocks may be removed only on a written assurance from the customer that no further UCE will be attempted, and if they are, a substantial fee ($500) will be imposed per complaint received. Every reasonable attempt will be made to contact the customer and allow them to resolve the problem before taking action. In the event the customer is unreachable, or is unable to stop the UCE, we reserve the right to place a temporary block on the site at the router level.
Since NREP does not provide USENET (news) service, we are unable to block or monitor items posted to news. We will still accept, and pass on complaints to our customers.
This section does not apply to sites that send solicited email, from a mailing list that people have taken an active step to participate in. An active step means that they have sent an email or other communications specifically requesting to be placed on that mailing list.
Registration of a domain name confers no legal right to that name. Customer will indemnify NREP and hold NREP harmless from any claims associated with the use of Customer’s domain name. If Customer decides to discontinue service, Customer is responsible for arranging for a new name server within 30 days.
Unless otherwise arranged with NREP before the start of service, Customer must return to NREP all IP addresses issued by NREP to Customer if Customer discontinues service with NREP or if NREP discontinues service. Customer shall have thirty (30) days to obtain new IP addresses. The purpose of this provision is to cooperate with the Americas Registry for Internet Numbers' CIDR program to manage router table expansion.
Customer uses NREP's services at Customer's own risk. NREP makes no warranty, expressed or implied, including but not limited to any warranty of merchantability or fitness for a particular purpose. NREP shall not be liable for any loss or other damage, including but not limited to special, incidental, consequential, or punitive damages, resulting from any failure to provide service or from any termination of service. NREP has no control whatsoever and shall not be responsible to Customer for the content of any third-party material passing through any network, some of which may be illegal, inaccurate, adult in nature, harmful, or offensive.
a. Installation of Equipment
Before beginning any delivery, installation, or removal work, Customer must obtain NREP's written approval of Customer's choice of Supplier and contractors.
Customer may not provide or make available to any third party, space within the Space without NREP's prior written consent. If Customer should provide or make available space to a third party, Customer shall be in breach of this Agreement, and NREP may pursue any legal or equitable remedy, including but not limited to the immediate termination of the Agreement and/or removal of the Equipment.
b. Insurance
Customer agrees to maintain, at Customer's expense, during the entire time this Agreement is in effect (i) Comprehensive General Liability Insurance in an amount not less than Two Million U.S. Dollars ($2,000,000) per occurrence for bodily injury and property damage, (ii) Employer's Liability Insurance in an amount not less than Five Hundred Thousand U.S. Dollars ($500,000) per occurrence, and (iii) Worker's Compensation in an amount not less than that prescribed by statutory limits. Prior to taking occupancy of the Space, Customer shall furnish NREP with certificates of insurance which evidence the minimum levels of insurance set forth herein and which name NREP and Landlord as additional insureds. In the event Landlord requires additional insurance, Customer hereby agrees to comply with Landlord's requirements.
NREP shall not insure or be responsible for any loss or damage to property of any kind owned or leased by Customer or its employees, contractors, and agents. Any policy of insurance covering the Equipment owned or leased by Customer against loss or physical damage shall waive their rights against NREP and Landlord and each of their directors, officers, employees, contractor and agents.
c. Assignment or Transfer
Customer shall not assign or transfer the rights or obligations associated with this Agreement, in whole or in part, without NREP's written consent.
d. Limitation of Liability
In no event shall NREP or any of its officers, contractors or employees be liable for any loss of profit or revenue by Customer or for any consequential, incidental, special or exemplary damages incurred or suffered by Customer, nor for any loss of power or heating, ventilation, and air conditioning (HVAC) interruption, even if NREP has been advised of the possibility of such loss or damage.
Customer shall indemnify and hold harmless NREP, and Landlord (inclusive of their respective officers, contractors, employees and agents) from and against any and all claims, costs, expenses or liability arising out of Customer’s (inclusive of Customer's officers, contractors, employee agents and invitees) collective or individual use, occupancy or operation of the Equipment in or about the Space, Premises or Building.
Each Party shall be liable to the other for damage or loss to any property or persons if such damage or loss is caused by gross negligence or willful acts or omissions of such Party or its officers, employees, agents or contractors; or by the malfunction of any equipment supplied or operated by such Party.
e. Applicable Law
These Terms of Service shall be enforced in accordance with the laws of the State of Tennessee. Any notice pursuant to this Agreement shall be in writing and shall be deemed given when actually received or, if earlier, three days after deposit into the United States Mail. Notice given by electronic mail shall be deemed received one (1) business day after it is posted to the recipient's E-mail address. The parties shall submit any dispute relating to the subject matter of this Agreement to binding arbitration pursuant to the commercial rules of the American Arbitration Association. The parties surrender and waive the right to submit any arbitrable dispute to a court or jury, or to appeal to a higher court. There shall be no arbitration of any claim that would otherwise be barred by a statute of limitations if the claim were to be brought in court. The arbitrator(s) shall not have the power to award punitive, consequential. indirect, or special damages. The arbitrator shall have the power to award costs and reasonable attorney fees to the prevailing party.
All cancellations of service or changes in service must be in writing to NREP.
I hereby agree and understand the terms and condition of this agreement and warrant that I am duly authorized to sign this agreement on behalf of Customer.
Customer: __________________________________________________
Signature: __________________________________________________ Date: _________________
Name: __________________________________________________
Title: __________________________________________________
NASHVILLE REGIONAL EXCHANGE POINT, LLC.
Signature: __________________________________________________ Date: _________________
Name: __________________________________________________
Title: __________________________________________________
Version 1.1
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Nashville Regional Exchange Point, LLC
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