COLOCATION TERMS & CONDITIONS
This Colocation Terms and Conditions (this “Colocation ToC”) is made part of the Information Technology Master Services Agreement (“Agreement”) executed between Simple Helix and Customer.
Simple Helix provides colocation services (“Services”) providing Customer rack space and related services to support Customer-owned servers and related hardware installed at Simple Helix’s Facility. Simple Helix may also provide professional services related to implementation, installation, and customization of the Services. The parties have agreed that Simple Helix will provide the System to Customer, as well a
s any such professional services as the parties may agree, pursuant to the terms of the Agreement and any SOWs.
1. DEFINITIONS
The following capitalized terms will have the following meanings whenever used in this Colocation ToC. Any capitalized terms not defined herein will have the same definition as in the Agreement.
1.1. “Commencement Date” means the date set forth in the SOW that the Equipment Space is available;
1.2 “Customer Persons” means your employees, agents, contractors or invitees to whom Simple Helix grants access to the Facility and Equipment Space in accordance with this Colocation ToC, and all Customers will be considered “Users” for the purposes of this Colocation ToC;
1.3 “Equipment” means your communications equipment, cabling, connections, associated hardware and accessories;
1.4 “Equipment Space” means the equipment space located in the Facility;
1.5 “Facility” means the Simple Helix colocation facility at the locations set out in the SOW;
1.6 “License Term” means the term of your license to install, operate and maintain your Equipment in the Equipment Space, as specified in the applicable SOW;
2. LICENSE TO EQUIPMENT SPACE
2.1. License to Equipment Space: As of the Effective Date of the Agreement, or the date specified in the applicable SOW, Simple Helix grants Customer a non-exclusive license to install, operate, replace, remove and maintain its Equipment in the Equipment Space. The license granted is a license of space only and does not create an ownership interest or property rights of any nature in Simple Helix real or personal property. Simple Helix reserves all rights not otherwise granted to Customer in the Agreement.
2.2. Term of License: The License Term will commence on the Commencement Date and continue until either: (i) expiration of the License Term specified on the SOW, or (ii) the earlier termination of the Agreement in accordance with its terms.
2.3. Liens and Encumbrances: You will not create and will not permit any lien or encumbrance, including, without limitation, tax liens, mechanics’ liens, or other liens or encumbrances, on the Equipment, the Equipment Space, the Facility or any of Simple Helix equipment or property in or about the Facility, without the prior written consent of Simple Helix.
3. USE OF THE FACILITY
3.1. Access and Entry: Subject to your full payment of all Fees and compliance with the terms of the Agreement, you will have
(a) 24×7 unrestricted access to the Equipment Space during the License Term if you have a Full Private Rack;
(b) 9×5 escorted access to the Equipment Space during the License Term for all Shared Colocation Space;
You will cause your employees, agents, contractors or invitees who have access to the Equipment Space to conform to all Simple Helix rules and regulations (as may be provided to you by Simple Helix from time to time). Failure to pay all Fees when due and payable may result in denial of access to the Equipment Space. Simple Helix will not be required to provide access to any person not approved by Simple Helix. Notwithstanding the above, Simple Helix will not be liable for the consequence of admitting or refusing to admit to the Facility or Equipment Space, any of your agents or employees or other persons claiming the right to admission.
3.2. Facility Rules and Regulations: You and your employees, agents, contractors or invitees who have access to any of the Facilities must obey all Facility rules and regulations, which shall be posted at each Facility or provided to you by Simple Helix. Simple Helix may vary these rules and regulations from time to time in its sole discretion, and you will comply with all other reasonable requirements that Simple Helix may impose, or reasonably requests that Simple Helix Facility staff may make, from time to time.
3.3. Customer Persons: Any Customer Persons having access to the Facility must be approved in advance by Simple Helix. You must provide Simple Helix with particulars, including a current photograph of each Customer Person before that Customer Person will be given access to the Facility. No more than three Customer Persons will be authorized to have access to the Facility at any time, unless otherwise agreed with Simple Helix. Your Customer Persons will be issued passes or visitor identification cards which must be presented upon request before entry into the Facility and surrendered upon demand or upon termination or expiration of the License Term.
3.4. Right to Terminate a Customer Person’s Access: Simple Helix will have the right to immediately terminate the right of access of any of your Customer Persons if Simple Helix determines in its sole discretion that termination of such access is in the best interest of Simple Helix or the Facility, provided that Simple Helix will not act in an arbitrary fashion in making such a determination. Simple Helix may in its sole discretion suspend the Services and access to the Equipment Space or the Facility until the time that Simple Helix determines that there is no longer any risk of threat to the security, safety, or integrity of the Equipment Space, the Facility, or any other customer or employee of Simple Helix; provided, however, that during the period of suspension Simple Helix will provide escorted access for its then-standard fees.
3.5. Consent to Video Monitoring: You acknowledge, agree and hereby consent under applicable privacy laws that Simple Helix may monitor the Facility by way of closed-circuit television or other monitoring device for the purposes of maintaining the safety and security of the Facility, any equipment in the Facility, and any persons using or present in the Facility from time to time.
3.6. Facility Air Conditioners: You will not move, dislodge or otherwise interfere with or prevent the placement of any air conditioners, fans or other cooling devices which Simple Helix has located throughout the Facility.
4. USE OF THE EQUIPMENT SPACE
4.1. Installation and Requirements: You will be responsible for the delivery and installation of the Equipment and the connection of the Equipment to telecommunications lines and power. You may not connect or disconnect to any electrical circuits outside of the Equipment Space without the prior approval of Simple Helix. You will only install or place equipment in the Equipment Space. During the License Term, you will notify Simple Helix of any space, power or other requirements associated with the installation or operation of the Equipment. Simple Helix will have no duty to monitor, maintain or care for the Equipment. You must install your Equipment according to the hot and cold aisle setup of the Facility.
4.2. Additional Services: Where Simple Helix provides you with additional services (including billable professional services), as agreed in an SOW, such services will be provided subject to and in accordance with the Agreement. Simple Helix accepts no risk with regards to Equipment in respect of which you request Simple Helix services.
4.3. Upgrades and Modifications: Without the prior written approval of Simple Helix, you will not (i) undertake any upgrade or modification within or about the Facility, (ii) undertake any activity that would in anyway result in an increased cost to Simple Helix, or that might affect the use of the Facility or equipment therein by Simple Helix or any other user of the Facility, or (iii) use your Equipment to allow third parties colocated in the Facility to interconnect with each other at the Facility.
4.4. Maintenance and Use of Equipment Space: You will, at your own cost and expense, protect, maintain and keep in good order the Equipment Space and any equipment in the Equipment Space. You will ensure that neither you nor your employees, agents, contractors or invitees damage any part of the Equipment Space, Facility or any property located in or about the Facility, or interfere, or allow the equipment to constitute a hazard to or to interfere with, Simple Helix or any other user of the Facility or any equipment owned or used by Simple Helix or any other user of the Facility. You will not allow any debris or supplies to be left in or about the Equipment Space or Facility, and you will ensure that the access door and all aisles adjacent to the Equipment Space, as well as all adjacent fire pull stations are at all times unblocked by Equipment both inside and outside of the Equipment Space, and readily accessible by any authorized persons, including Customer Persons or Simple Helix.
4.5. Immediate Threats: If, in the determination of Simple Helix, acting reasonably, the Equipment poses an immediate threat to the physical integrity of the Facility or the physical integrity or performance of the equipment of Simple Helix or any other user of the Facility, or poses an immediate threat to the safety of any person, then Simple Helix may perform such work and take such other actions that it may consider necessary without prior notice to you and without liability for damage to the Equipment or for any interruption of your (or your clients’) businesses. As soon as practicable after performing such work, Simple Helix will advise you in writing of the work performed or the action taken.
4.6. Intervention: If any part of the Equipment is not placed and maintained in accordance with this Colocation ToC, and you fail to correct the violation within five (5) days after receipt of written notice of the violation from Simple Helix, then Simple Helix may, at its option, without further notice to you, correct the deficiency at your expense without liability for damages to the Equipment or interruption of your (or your clients’) businesses. As soon as practicable thereafter, Simple Helix will advise you in writing of the work performed or action taken. You will reimburse Simple Helix for all expenses reasonably incurred by Simple Helix associated with any work or action performed by Simple Helix in accordance with this section.
4.7. Relocation: You will, at Simple Helix expense, relocate the equipment to other equipment space within the Facility upon Simple Helix written request and within thirty (30) days of such request.
4.8. Periodic Inspections: Simple Helix reserves the right to make periodic inspections of the Equipment Space and any Equipment that is located within or physically attached to the Facility. You will have the right to have one or more of your employees or representatives present during the time of any such inspection. Simple Helix will give you reasonable advance notice of such inspections, except in those instances where Simple Helix determines that safety considerations justify the need for such an inspection without the delay of providing notice. The making of periodic inspections or the failure to do so will not impose upon Simple Helix any liability of any kind nor relieve you of any obligation under this Colocation ToC.
4.9. Removal of Equipment: Upon termination or expiration of the License Term, unless prohibited by Simple Helix in accordance with the Agreement, you will remove the Equipment from the Premises. Unless the parties otherwise agree in writing, in the event the Equipment has not been removed within five (5) days following the date of such termination or expiration, Simple Helix will have the right to remove, relocate, or otherwise store the Equipment at your expense without incurring any liability to you. If after thirty (30) days of such storage by Simple Helix you have not retrieved the Equipment, then Simple Helix may dispose of the Equipment as in a manner consistent with applicable law.
4.10. Power: (a) Power Bars and Circuits: You will not modify, upgrade, open or otherwise interfere with power bars, circuits or any other power infrastructure, whether such power infrastructure is provided by Simple Helix or Customer. Power bars may not installed or be removed at any time unless agreed by the Parties and installed or removed by Simple Helix staff.
(b) Electrical Compliance: You will be responsible for the costs of any work or other actions which Simple Helix may consider necessary without prior notice to you and without liability for damage to the Equipment, or for any interruption of your (or your clients’) businesses, in order to rectify any unauthorized use of any power infrastructure by you. As soon as practicable after performing such work, Simple Helix will advise you in writing of the work performed or the action taken.
(c) Power Use: You will not install any Equipment that exceeds 80% of the capacity of any electrical circuit or associated hardware at the Facility. In the event that you do exceed 80% capacity of any electrical circuit or associated hardware at the Facility, Simple Helix may, at its option, and without notice to you if necessary, remedy the overload at your expense without liability for damages to the Equipment or interruption of your (or your clients’) businesses. As soon as practicable thereafter, Simple Helix will advise you in writing of the work performed or action taken, and you will immediately reimburse Simple Helix for all expenses reasonably incurred by Simple Helix associated with any work or action performed by Simple Helix in accordance with this section. In the event power to one circuit is interrupted for any reason, the single, remaining, active circuit must not exceed 80%.
5. USE OF EQUIPMENT
5.1. Ownership: You represent and warrant that you either own all Equipment or have all necessary rights to use, maintain, and locate the Equipment in the Facility. If the Equipment is leased, then you will provide all documentation regarding such lease to Simple Helix promptly upon request. Simple Helix disclaims any liability to any third party who has an ownership, security interest or other similar right in or to the Equipment.
5.2. Interference: You will be responsible for resolving any technical interference problems between your Equipment and other equipment located at the Facility and, if there are other wireless telecommunications facilities located at the Facility, you will reasonably cooperate with such other users of the Facility to resolve any issues of interference in an equitable fashion. Your Equipment must not disturb the communications configurations, equipment, and frequency that exist at the Facility as of the Commencement Date and your Equipment must comply with all non-interference rules of the applicable governmental agency or authority, including the Federal Communications Commission.
6. INSURANCE
You will maintain at your expense, throughout the License Term, Comprehensive General Liability Insurance protecting Simple Helix as an additional insured in an amount not less than One Million Dollars ($1,000,000.00) per occurrence for bodily injury or property damage. At Simple Helix request, you will provide Simple Helix with certificates of insurance or other satisfactory evidence that the insurance required in this section has been obtained. Simple Helix does not provide insurance coverage for any customer equipment in the Facility. You and Simple Helix each hereby waive all rights of recovery against the other, the other’s agents, employees, contractors, and representatives on account of loss and damage occasioned to such waiving party to the extent that that loss or damage, is actually covered (and paid) by insurance carried by either party.
7. INDEMNITY
During and after the License Term or any renewal terms of this Colocation ToC, and in addition to any of your indemnity obligations under the Agreement, you agree to defend, indemnify and hold harmless Simple Helix, its parent company, and their affiliates, subsidiaries, personnel and representatives, jointly and severally, from and against any and all claims, damages, losses, liability, causes of action, judgments, costs or expenses (including reasonable legal fees) directly or indirectly arising from, connected with or relating to any use of the Equipment Space or the Facility by your Users, including any Customer Persons or your customers.
FIBER SERVICES TERMS & CONDITIONS
This Fiber Services Terms and Conditions (this “Fiber ToC”) is made part of the Master Services Agreement (“Agreement”) to which it is attached.
Simple Helix provides high-speed fiber internet services (“Services”). Simple Helix may also provide professional services related to implementation, installation, and customization of the Fiber Services. The parties have agreed that Simple Helix will provide the Fiber Services to Customer, as well as any such professional services as the parties may agree, pursuant to the terms of the Agreement and any SOWs. Any term not defined herein will be deemed to have the definition as set forth in the Agreement.
1. SERVICE LOCATION ACCESS AND INSTALLATION
1.1. Access. Simple Helix requires reasonable access to each Customer’s location where the Services are being provided (“Service Location”) at any time throughout the Term as necessary for Simple Helix to provide the Services and to review, install, inspect, maintain, repair, or remove any Simple Helix-provided cabling, routers, related splitters, routers or other equipment (“Simple Helix Equipment“) used to provide the Services. If Customer owns or controls the Service Location(s), Customer hereby grants Simple Helix permission to enter the Service Location(s) in order for Simple Helix to fulfill its obligations and exercise its rights under the Agreement. If a Service Location is not owned or controlled by Customer, Customer will obtain, with Simple Helix’ reasonable assistance, appropriate right of access. If such right of access for Simple Helix is not obtained by either Party, then Simple Helix may decline Customer’s request for Services with respect to the Service Location that Simple Helix cannot access, without any liability to Customer.
1.2. Installation Review. Simple Helix may perform an installation review of each Service Location prior to installation of the Services to determine serviceability or the need to extend Simple Helix’ facilities, fiber optic cable, electronics, or other equipment (collectively, the “Network“) to provide the Services at the Service Location. If during the installation review, Simple Helix determines that additional work is required to enable Simple Helix to deliver the Services to the Service Location, Simple Helix will notify Customer of any additional Service Charges in excess of the amounts previously specified in a quote or work order. Upon request, Customer shall provide Simple Helix with accurate site and/or physical network diagrams or maps of a Service Location, including electrical and other utility service maps, prior to the installation review.
1.3. Site Preparation. Customer shall be responsible for necessary preparations at the Service Location(s) for delivery and installation of Simple Helix Equipment and the installation and ongoing provision of Services, including the relocation of Customer’s equipment, furniture and furnishings as necessary to access the Simple Helix Equipment or Services. In addition, Customer shall provide Simple Helix with floor space, other space, and clean power as is reasonably necessary for the installation and operation of Simple Helix Equipment at the Service Location(s). Customer shall not charge Simple Helix, and shall ensure that Simple Helix does not incur, any fees or expenses whatsoever in connection with Customer’s provision of space, power, or access as described herein, or otherwise in connection with Customer’s performance of its obligations pursuant to this section; and any such fees or expenses charged by any other end user accessing or using the Services shall be borne solely by Customer.
1.4. Installation. Simple Helix will schedule one or more installation visits with Customer. At the Customer’s request, Simple Helix may perform installation or maintenance on weekends or times other than during normal business hours; provided, however, Customer may be assessed reasonable, additional Fees based on Simple Helix’ actual incurred labor, material or other costs for such non-routine installation or maintenance. Customer’s authorized representative must be present during installation. Simple Helix shall use commercially reasonable efforts to make the Services available by the estimated service start date as set forth in the SOW. Simple Helix shall not be liable for any damages whatsoever resulting from delays in meeting the estimated service start date due to delays resulting from normal installation procedures or events beyond Simple Helix’ control. Examples of delays of installation include, without limitation, delays in obtaining necessary regulatory approvals for construction, delays in obtaining right-of-way approvals, delays in actual construction work being done by Simple Helix’ vendor(s), and any delays due to any other provider(s) where Simple Helix is relying upon such provider(s) to meet such estimated due date which is beyond Simple Helix’ control. In addition, if Simple Helix is unable to install the Service in accordance with the agreed upon schedule as a result of: (i) Customer’s failure to deliver any required materials, support or information to Simple Helix; (ii) Customer’s failure to provide access to a Service Location; or (iii) Simple Helix not being able to obtain access to equipment or software at the Service Location as necessary for installation of the Service, then Customer shall pay Simple Helix a Fee at Simple Helix’ then-prevailing rates for any installation trip made by Simple Helix and an additional Fee for each subsequent trip necessary to perform the Service installation. If during the course of installation Simple Helix determines additional work is necessary to enable Simple Helix to deliver the Services to the Service Location, Simple Helix will notify Customer of any additional Fees in excess of the amounts previously specified in a quote or SOW. If Customer does not agree to pay such Fees, Customer and Simple Helix shall each have the right to terminate the Services. Simple Helix may act as Customer’s agent for ordering access connection facilities provided by other providers or entities when authorized by Customer to allow connection of a Service Location to the Network. Customer shall perform interconnection of the Services and Simple Helix Equipment with any Customer-provided equipment (collectively, “Customer Equipment“), unless otherwise set forth in the Agreement or agreed in writing between the Parties, and shall conform its Customer Equipment and software to the technical specifications for the Service provided by Simple Helix. Simple Helix shall be responsible for reasonable restoration efforts necessary to address any displacement resulting from excavation and for those damages directly caused by Simple Helix’ faulty workmanship or installation of the Service, provided that the boring of holes or insertion of fasteners through the surface of walls for attachment of peripheral equipment will not be deemed damages but rather part of normal workmanship. If the installation and maintenance of Services at the Service Locations is or becomes, in Simple Helix’ sole opinion, hazardous or dangerous to Simple Helix’ employees or Network, the public, or property, including without limitation due to the presence of asbestos or other hazardous materials, Simple Helix may refuse to install and maintain such Service or stop providing Services until such time as the condition is remedied or an alternative Service Location is designated that is not hazardous or dangerous. Customer shall bear any additional costs incurred by Simple Helix arising from any such hazardous or dangerous conditions.
2. EQUIPMENT
2.1. Equipment Responsibilities and Safeguards. Simple Helix shall use commercially reasonable efforts to maintain and secure the Simple Helix Equipment used by Simple Helix to provide Services to Customer. Except as otherwise provided in this Fiber ToC, Customer shall be responsible for the maintenance or repair of any cable, electronics, structures, equipment or materials owned or provided by Customer. Customer shall not cause any third party to, move, modify, disturb, alter, remove, relocate to another Service Location, install software not provided by Simple Helix, or otherwise tamper with any portion of the Simple Helix Equipment without the prior consent of Simple Helix. Customer shall be responsible for loss or damage to the Simple Helix Equipment while at Customer’s facilities. Customer shall also ensure that all Simple Helix Equipment at Customer’s Service Location(s) remains free and clear of all liens and encumbrances.
2.2. Customer Security Responsibilities. Customer shall be responsible for all access to and use of the Service, including whether or not Customer has knowledge of or authorizes such access or use. Customer shall be responsible for the implementation of reasonable security measures and procedures with respect to use of and access to the Service Location, Service, and Simple Helix Equipment. Customer shall secure and maintain any and all Customer Equipment, including, but not limited to, Private Branch Exchanges (including other non- Simple Helix switches, collectively, “PBXs“), where applicable, and any applications accessible through use of Customer Equipment, and shall be solely responsible for any conduct through and any charges incurred on Customer’s account, regardless of whether such activity or charges are authorized by Customer management or involve fraudulent activity until such time as Customer informs Simple Helix of any fraudulent or unauthorized access. Without limiting Customer’s responsibilities, Simple Helix has the right to implement reasonable measures to track, manage, and secure the connection between any Customer Equipment or applications used by Customer or any third party who accesses the Customer Equipment and the Simple Helix Network, including without limitation authentication or other security access procedures. Simple Helix may suspend any affected Services if Simple Helix discovers or becomes aware of any breach or compromise of the security of any Customer Equipment, Service, Service Location, Simple Helix Equipment, or connection to the Simple Helix Network.
2.3. Equipment Return, Retrieval, Repair and Replacement. Immediately upon termination of the Agreement, or Service(s) (“Termination“): (i) at the discretion of Simple Helix, Customer shall return, or allow Simple Helix to retrieve, the Simple Helix Equipment in the condition in which the Simple Helix Equipment was received, subject to ordinary wear and tear; and (ii) promptly cease all use of and return to Simple Helix any software provided by Simple Helix (“Software“). Failure of Customer to return or allow Simple Helix to retrieve the Simple Helix Equipment within fifteen (15) days after Services are terminated will result in a charge to Customer’s account equal to either Simple Helix’ applicable unreturned equipment charge or the retail cost of replacement of the unreturned Simple Helix Equipment. If applicable, Customer shall pay for the repair or replacement of any damaged Simple Helix Equipment, except such repairs or replacements as may be necessary due to normal and ordinary wear and tear or material or workmanship defects, together with any costs incurred by Simple Helix in obtaining or attempting to regain possession of Simple Helix Equipment.
3. CUSTOMER REPRESENTATIONS AND OBLIGATIONS
3.1. No Reselling. Customer shall not resell or redistribute (whether for a fee or otherwise) access to the Service(s) or system capacity, or any part thereof, in any manner other than for Customer’s internal business without the express prior consent of Simple Helix, including without limitation, any use to provide services for the benefit of, or on behalf of, any third party other than Customer.
3.2. No Illegal Purpose or Unauthorized Access. Customer shall not use or permit third parties to use the Service(s), including the Simple Helix Equipment and Software, for any illegal purpose, or to achieve unauthorized access to any computer systems, software, data, or other copyright or patent protected material.
3.3. No Interference. Customer shall not interfere with or cause technical difficulties for other customers’ use of equipment or Services or interfere with or disrupt the Simple Helix Network, backbone, nodes or other Services. Customer shall not install any equipment, including without limitation, any antenna or signal amplification system, at the Service Location that interferes with the Services.
3.4. Applicable Laws. With respect to Customer’s use of the Service (including the transmission or use of any content via the Service), Customers shall comply with all applicable laws and regulations in addition to the Agreement. Simple Helix shall have the right to audit Customer’s use of the Service remotely or otherwise, to ensure compliance with the Agreement.
3.5. Acceptable Use. As between the Parties, Customer is solely responsible for: (i) all use (whether or not authorized) of the Service by Customer or any unauthorized person or entity, which use shall be deemed Customer’s use for purposes of the Agreement, (ii) all content that is viewed, stored or transmitted via the Service, as applicable, and (iii) all third-party charges incurred for merchandise and services accessed via the Service, if any. Customer shall not use, or allow the Services to be used, in any manner that would violate the applicable Simple Helix Acceptable Use Policies or that would cause, or be likely to cause, Simple Helix to qualify as a “Covered 911 Service Provider” as defined in 47 C.F.R. §12.4 or any successor provision of the rules of the Federal Communication Commission. For avoidance of doubt, Customer and Simple Helix agree that any failure to satisfy the covenants set forth in the preceding sentence shall constitute a material breach of the Agreement. In addition to this Section 3.5, Customer acknowledges that in its use of the Services it must abide by the provisions of Simple Helix’s Acceptable Use Policy, as applicable to Customer’s use, found at wplstage.simplehelix.host/acceptableusepolicy.
4. PERFORMANCE
Unless otherwise set forth in any SOW or service level agreement, Simple Helix will use commercially reasonable efforts to provide the Services to Customer twenty-four (24) hours per day, seven (7) days per week. It is possible, however, that there will be interruptions of Service. The Service may be unavailable from time-to-time either for scheduled or unscheduled maintenance, technical difficulties, or for other reasons beyond Simple Helix’ reasonable control. Temporary service interruptions or outages for such reasons, as well as service interruptions or outages caused by Customer, its agents and employees, or by a Force Majeure Event, shall not constitute a failure by Simple Helix to perform its obligations under this Services Agreement.
5. MONITORING, EQUIPMENT UPGRADES AND NETWORK MODIFICATIONS
Simple Helix has the right, but not the obligation, to upgrade, modify, and enhance the Simple Helix Network and the Service and take any action that Simple Helix deems appropriate to protect or improve the Service and its facilities. Simple Helix shall have the right, but not the obligation, to monitor, record, and maintain oral communications with Customer regarding Customer’s account or Services for the purpose of service quality assurance or as permitted under applicable law.
6. DEFAULT, SUSPENSION OF SERVICE, AND TERMINATION
6.1. Default. A Party shall be in default under this Fiber ToC if it has failed to comply with the Agreement, the terms of this Fiber ToC or any SOW, including without limitation the obligation to pay any amounts due, and such Party fails to correct each such noncompliance within thirty (30) days of receipt of notice from the non-defaulting Party describing in reasonable detail the default or noncompliance (“Default“).
6.2. Mutual Termination Rights. Either Party may terminate the Services or the Agreement if: (i) the other Party is in Default; (ii) the other Party liquidates, is adjudicated as bankrupt, makes an assignment for the benefit of creditors, invokes any provision of law for general relief from its debts, initiates any proceeding seeking general protection from its creditors; or (iii) Simple Helix learns that the costs to deliver the Services to the Service Location shall require a material increase in the Fees and Customer does not agree to pay such additional Fees.
6.3. Termination for Convenience by Customer. Notwithstanding any other term or provision in this Services Agreement, Customer may terminate the Services at any time upon thirty (30) days prior notice to Simple Helix, subject to payment of any Early Termination Fee, as set forth in an SOW, and the return of any Simple Helix Equipment.
6.4. Simple Helix’ Right to Suspend. Simple Helix shall have the right, at its option, without prior notice, and in addition to any other rights of Simple Helix expressly set forth in this Services Agreement and any other remedies it may have under applicable law to suspend Services if Customer fails to comply with any applicable laws or regulations or this Services Agreement, or if Customer’s use of the Service is determined by Simple Helix, in its sole discretion, to result in a material degradation of the Simple Helix Network until Customer remedies any such noncompliance or degradation. Any suspension shall not affect Customer’s on-going obligation to pay Simple Helix any amounts due under the Agreement. If Simple Helix suspends any Service, Simple Helix may require the payment of reconnect or other charges before restarting the suspended Service. If Customer has more than one Simple Helix account, all Simple Helix-provided services at all locations may be subject to suspension or termination in the event any account remains unpaid or is otherwise in Default.
6.5. Simple Helix’ Additional Rights to Terminate: Simple Helix may terminate the Services and/or the Agreement if:
(a) The information required in the application process and provided by Customer to Simple Helix is or becomes incorrect, absent or incomplete;
(b) Customer threatened or harassed any Simple Helix employee, agent, contractor or representative;
(c) The amount of technical support required to be provided to Customer is excessive as determined in the sole discretion of Simple Helix.
6.6. No Liability. Customer further agrees that in the event of termination by Simple Helix pursuant to this Section 6, Simple Helix shall have no liability to Customer.
6.7. Payment of Fees. Upon Termination, Customer must pay all Fees then due for Services provided through the effective date of Termination.
7. DISCLAIMER OF WARRANTY; LIMITATION OF LIABILITY
7.1. DISCLAIMER OF WARRANTY. CUSTOMER ASSUMES TOTAL RESPONSIBILITY FOR USE OF THE SERVICE AND SIMPLE HELIX EQUIPMENT, AND USES THE SAME AT ITS OWN RISK, AND FOR ACCESS TO AND SECURITY OF CUSTOMER’S EQUIPMENT AND CUSTOMER’S NETWORK. SIMPLE HELIX EXERCISES NO CONTROL OVER AND HAS NO RESPONSIBILITY WHATSOEVER FOR THE APPLICATIONS OR CONTENT TRANSMITTED OR ACCESSIBLE THROUGH THE SERVICE AND SIMPLE HELIX EXPRESSLY DISCLAIMS ANY RESPONSIBILITY FOR SUCH APPLICATIONS OR CONTENT. EXCEPT AS SPECIFICALLY SET FORTH IN THIS FIBER TOC, THE SERVICE, SIMPLE HELIX EQUIPMENT, AND ANY SIMPLE HELIX MATERIALS ARE PROVIDED “AS IS, WITH ALL FAULTS,” WITHOUT WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO WARRANTIES OF TITLE, NON-INFRINGEMENT, SYSTEM INTEGRATION, DATA ACCURACY, QUIET ENJOYMENT, MERCHANTABILITY, OR FITNESS FOR A PARTICULAR PURPOSE. NO ADVICE OR INFORMATION GIVEN BY SIMPLE HELIX, ITS AFFILIATES OR ITS CONTRACTORS OR THEIR RESPECTIVE EMPLOYEES SHALL CREATE ANY WARRANTY. SIMPLE HELIX DOES NOT REPRESENT OR WARRANT THAT THE SERVICE WILL MEET CUSTOMER’S REQUIREMENTS, PREVENT UNAUTHORIZED ACCESS BY THIRD PARTIES, WILL BE UNINTERRUPTED, SECURE, ERROR FREE, WITHOUT DEGRADATION OF VOICE QUALITY OR WITHOUT LOSS OF CONTENT, DATA OR INFORMATION, OR THAT ANY MINIMUM TRANSMISSION SPEED IS GUARANTEED AT ANY TIME. EXCEPT AS SET FORTH IN THIS SERVICES AGREEMENT, SIMPLE HELIX DOES NOT WARRANT THAT ANY SERVICE OR EQUIPMENT PROVIDED BY SIMPLE HELIX WILL PERFORM AT A PARTICULAR SPEED, BANDWIDTH OR THROUGHPUT RATE. IN ADDITION, CUSTOMER ACKNOWLEDGES AND AGREES THAT TRANSMISSIONS OVER THE SERVICE MAY NOT BE SECURE. CUSTOMER FURTHER ACKNOWLEDGES AND AGREES THAT ANY DATA, MATERIAL OR TRAFFIC OF ANY KIND WHATSOEVER CARRIED, UPLOADED, DOWNLOADED OR OTHERWISE OBTAINED THROUGH THE USE OF THE SERVICE IS DONE AT CUSTOMER’S OWN DISCRETION AND RISK AND THAT CUSTOMER WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO CUSTOMER’S EQUIPMENT OR LOSS OF SUCH DATA, MATERIAL OR TRAFFIC DURING, OR RESULTING FROM, CUSTOMER’S USE OF THE SERVICE, INCLUDING, WITHOUT LIMITATION, VIA SENDING OR RECEIVING, UPLOADING OR DOWNLOADING, OR OTHER TRANSMISSION OF SUCH DATA, MATERIAL OR TRAFFIC. IN ADDITION, CUSTOMER ACKNOWLEDGES AND AGREES THAT SIMPLE HELIX’ THIRD PARTY SERVICE PROVIDERS DO NOT MAKE ANY WARRANTIES TO CUSTOMER UNDER THIS SERVICES AGREEMENT, AND SIMPLE HELIX DOES NOT MAKE ANY WARRANTIES ON BEHALF OF SUCH SERVICE PROVIDERS UNDER THE AGREEMENT, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY, NON-INFRINGEMENT, TITLE, FITNESS FOR A PARTICULAR PURPOSE, SYSTEM INTEGRATION, DATA ACCURACY OR QUIET ENJOYMENT.
7.2. LIMITATION OF LIABILITY. WITHOUT LIMITING ANY EXPRESS PROVISIONS OF THIS FIBER TOC, NEITHER PARTY SHALL BE LIABLE TO THE OTHER, ANY END USER, OR ANY THIRD PARTY FOR ANY INDIRECT, CONSEQUENTIAL, EXEMPLARY, SPECIAL, INCIDENTAL, RELIANCE, OR PUNITIVE DAMAGES (INCLUDING LOST BUSINESS, REVENUE, PROFITS, OR GOODWILL) ARISING IN CONNECTION WITH THIS FIBER TOC OR THE PROVISION OF SERVICES, INCLUDING ANY SERVICE IMPLEMENTATION DELAYS OR FAILURES, UNDER ANY THEORY OF TORT, CONTRACT, WARRANTY, STRICT LIABILITY, MISREPRESENTATION, OR NEGLIGENCE, EVEN IF THE PARTY HAS BEEN ADVISED, KNEW OR SHOULD HAVE KNOWN OF THE POSSIBILITY OF SUCH DAMAGES. THE FOREGOING LIMITATION OF LIABILITY SHALL NOT APPLY TO ANY OF CUSTOMER’S PAYMENT OBLIGATIONS UNDER THE AGREEMENT. SIMPLE HELIX’ MAXIMUM LIABILITY TO CUSTOMER WITH REGARD TO ANY SERVICE SHALL NOT EXCEED THE AMOUNT PAID OR PAYABLE BY CUSTOMER TO SIMPLE HELIX FOR THE APPLICABLE SERVICE IN THE TWELVE (12) MONTHS IMMEDIATELY PRECEDING THE EVENTS GIVING RISE TO THE CLAIM. SIMPLE HELIX SHALL NOT BE RESPONSIBLE FOR ANY LOSSES OR DAMAGES ARISING AS A RESULT OF THE UNAVAILABILITY OF THE SERVICE, INCLUDING THE INABILITY TO REACH 911 OR ANY OTHER EMERGENCY SERVICES, THE INABILITY TO CONTACT A SECURITY SYSTEM OR REMOTE MEDICAL OR OTHER MONITORING SERVICE PROVIDER OR ANY FAILURE OR FAULT RELATING TO CUSTOMER-PROVIDED EQUIPMENT, FACILITIES OR SERVICES.
8. INDEMNIFICATION
In addition to any indemnity provision provided in the Agreement, unless prohibited under applicable law, Customer at its own expense, shall indemnify, defend, and hold harmless Simple Helix, its affiliates, service providers, and suppliers, and their directors, employees, representatives, officers and agents (the “Indemnified Parties“) against any and all third party claims, liabilities, lawsuits, damages, losses, judgments, costs, fees and expenses incurred by Simple Helix Indemnified Parties, including reasonable attorney and other professional fees and court costs incurred by Simple Helix Indemnified Parties, to the full extent that such arise from or relate to any one or more of the following:
(a) Customer’s use or misuse of the Service;
(b) Customer’s failure to comply with any applicable law, order, rule, regulation, or ordinance or this Services Agreement;
(c) Personal injury or tangible property damage caused by Customer’s or its employees’ or agents’ negligence or willful misconduct.
Simple Helix Indemnified Parties shall have the right but not the obligation to participate in the defense of the claim.
9. REGULATORY CHANGES
In the event of any change in applicable law, regulation, decision, rule or order, including without limitation any new application of or increase in any government- or quasi-government-imposed fees or charges that increases the costs or other terms of Simple Helix’ delivery of Service to Customer, or, in the event of any increase in pole attachment or conduit charges applicable to any facilities used by Simple Helix in providing the Service, Customer acknowledges and agrees that Simple Helix may pass through to Customer any such increased fees or costs, but only to the extent of the actual increase. Simple Helix shall use commercially reasonable efforts to notify Customer at least thirty (30) days in advance of the increase. In such case, and if such increase materially increases the Fees payable by Customer under the Agreement for the applicable Service, Customer may, within thirty (30) days after notification of such increase, terminate the affected Service, provided Customer notifies Simple Helix at least fifteen (15) days in advance of Customer’s requested termination date. Further, in the event that Simple Helix is required to file tariffs, rate schedules, or price guides with a regulatory agency or otherwise publish or make generally available its rates in accordance with regulatory agency rules or policies respecting the delivery of the Service or any portion thereof, then the terms set forth in the applicable tariff, rate schedule, or price guide shall govern Simple Helix’ delivery of, and Customer’s use or consumption of the Service. In addition, if Simple Helix determines that offering or providing the Service, or any part thereof, has become impracticable for legal or regulatory reasons or circumstances, then Simple Helix may terminate the Services without liability, by giving Customer thirty (30) days prior notice or any such notice as is required by law or regulation applicable to such determination.
10. PROPRIETARY RIGHTS AND CONFIDENTIALITY
Simple Helix’ Proprietary Rights. All materials including, but not limited to, any Simple Helix Equipment (including related firmware), software, data and information provided by Simple Helix, any identifiers or passwords used to access the Service or otherwise provided by Simple Helix, and any know-how, methodologies or processes including, but not limited to, all copyrights, trademarks, patents, trade secrets, any other proprietary rights inherent therein and appurtenant thereto, used by Simple Helix to provide the Service (collectively “Simple Helix Materials”) shall remain the sole and exclusive property of Simple Helix or its suppliers and shall not become a fixture to the Service Location. Customer shall acquire no title to, interest or right (including intellectual property rights) in the Simple Helix Materials by virtue of the payments provided for herein other than the limited, non-exclusive, and non-transferable license to use the Simple Helix Materials solely for Customer’s use of the Service. Customer may not disassemble, decompile, reverse engineer, reproduce, modify, or distribute the Simple Helix Materials, in whole or in part, or use them for the benefit of any third party. Customer shall not cause or permit the disabling or circumvention of any security mechanism contained in or associated with the Services. All rights in the Simple Helix Materials not expressly granted to Customer herein are reserved to Simple Helix or its suppliers. Customer shall not open, alter, misuse, tamper with, or remove the Simple Helix Equipment or Simple Helix Materials as and where installed by Simple Helix, and shall not remove any markings or labels from the Simple Helix Equipment or Simple Helix Materials indicating Simple Helix (or its suppliers) ownership or serial numbers.
MANAGED SERVICES TERMS & CONDITIONS
This Managed Services Terms and Conditions (this “Managed Services T&C”) is made part of the Master Services Agreement (“Agreement”) executed between Simple Helix and Customer. Any term not defined herein will have the same definition as in the Agreement or any SOW.
1. SOW TERMS AND CONDITIONS
Simple Helix will provide the services as specified in the SOW (“Services”) governed by this Managed Services T&C. In the event of a conflict between a term or condition in an SOW and those set forth here, this Managed Services T&C will govern unless explicitly superseded in the SOW.
2. CUSTOMER MATERIALS DELAY
Customer acknowledges that Simple Helix’s performance of the Services and delivery of any Deliverable is contingent on Customer’s timely delivery of any customer materials (“Customer Materials”) provided to Simple Helix in connection with the Services.
3. PERSONNEL
Simple Helix will determine the personnel assigned to perform the Services. Customer may request in writing, with specific legal reasons stated, the replacement of Simple Helix personnel or contractors.
4. PAYMENT TERMS
Simple Helix shall submit invoices for fees and reimbursable costs and expenses as described in the SOW plus all related taxes and withholdings, except for those based on Simple Helix’s net income. If Customer is required to withhold taxes, then Customer will forward any withholding receipts to Simple Helix. Additional payment terms are as set forth in the Agreement.
5. WARRANTY
Simple Helix shall perform Services in a workmanlike manner in accordance with generally accepted industry standards. EXCEPT AS EXPRESSLY STATED IN THIS WARRANTY SECTION, AND TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, SIMPLE HELIX (INCLUDING ITS SUPPLIERS) MAKES NO OTHER EXPRESS WARRANTIES, WRITTEN OR ORAL, AND DISCLAIMS ALL IMPLIED WARRANTIES. INSOFAR AS PERMITTED UNDER APPLICABLE LAW, ALL OTHER WARRANTIES ARE SPECIFICALLY EXCLUDED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT, AND ANY WARRANTY ARISING BY STATUTE, OPERATION OF LAW, COURSE OF DEALING OR PERFORMANCE, OR USAGE OF TRADE.
6. INTELLECTUAL PROPERTY
6.1. Ownership. Other than Simple Helix Materials, Open Source Software and any Third Party Materials (defined herein) Customer shall own all intellectual property rights associated with the Deliverables, works of authorship or other products developed or created and delivered by Simple Helix to Customer in the course of performing Services (“Work Product”), as well as Customer’s derivative works thereof, subject to Customer’s payment in full under such SOW and subject to Simple Helix’s rights in the underlying intellectual property embodied therein or used by Simple Helix to perform the Services.
6.2. Simple Helix Materials Exclusion. “Simple Helix Materials” means any materials developed by Simple Helix: (a) prior to the Effective Date; (b) other than in performance of this SOW; (c) that are generally applicable to Simple Helix’s products and services and are not unique to the business of Customer or the SOW; or (d) that are improvements to Simple Helix software or Simple Helix’s internal processes, provided that such improvements or use thereof do not infringe on Customer’s proprietary rights. Simple Helix Materials may be included in, or necessary for Customer to use the Work Product but are excluded from Customer’s ownership rights set forth in Section 6.1. Simple Helix hereby grants to Customer a worldwide, perpetual, royalty-free license to use Simple Helix Materials solely as necessary for use as part of the Work Product. No other grants of licenses or rights to Customer will be implied from the provisions stated in this SOW. Customer shall not obliterate or remove and will reproduce Simple Helix’s intellectual property notices contained in the Simple Helix Materials. Customer shall not reverse engineer, decompile, or otherwise attempt to derive source code from any portions of the Work Product. Simple Helix is not being engaged to perform any investigation of third-party intellectual property rights including any searches of patents, copyrights, or trademarks related to the Work Product.
6.3. Open Source Materials Exclusion. Open source software is software provided under a license approved by the Open Source Initiative or similar open source or freeware license (“OSS”). Unless otherwise agreed in writing in an SOW (or subsequently agreed to in writing by the parties), OSS components governed by Artistic License (all versions), Apache License (all versions), Boost Software License, BSD, Common Development and Distribution License (CDDL), Common Public License (CPL) or IBM, Eclipse Public License (EPL), FLTK License PSA, LGPL 2.1, MIT, Mozilla (MPL) (all versions), Open LDAP License, OpenSSL, PHP License, Public Domain, Python Software Foundation License, Ruby, and zlib/libpng License, may be included in, or necessary for Customer to use the Work Product but are excluded from Customer’s ownership rights. Simple Helix may (a) obtain such OSS on Customer’s behalf, (b) incorporate it into the Work Product, and (c) submit back to open source libraries any improvements made to the OSS during the course of performing the Services, to the extent such submissions do not violate the confidentiality obligations set forth herein.
6.4. Third Party Materials Exclusion. Materials (including tools that are used to deliver the Services) that are not owned or created by Simple Helix (other than Open Source Software) (“Third Party Materials”) may be included in, or necessary for Customer to use the Work Product, but are excluded from Customer’s ownership rights. Customer will be solely responsible for obtaining necessary licenses to the Third Party Materials and liable for their use.
6.5. Reservation of Rights. Simple Helix reserves all rights not expressly granted to Customer in this Managed Services T&C. Except as expressly stated, nothing herein shall be construed to (a) directly or indirectly grant to a receiving party any title to or ownership of a providing party’s intellectual property rights in services or materials furnished by such providing party hereunder, or (b) preclude such providing party from developing, marketing, using, licensing, modifying or otherwise freely exploiting services or materials that are similar to or related to the Services or materials provided hereunder.
6.6. Customer’s Underlying Rights. Customer represents and warrants to Simple Helix that (a) Customer owns or controls all rights in and to all Customer information and materials provided by or on behalf of Customer to Simple Helix pursuant to the SOW, including without limitation all rights to exploit all such Customer information and materials worldwide in all media and languages in perpetuity without encumbrance or restriction, and (b) Customer grants to Simple Helix a nonexclusive, nontransferable, worldwide paid-up license to make, use, modify, reproduce, and prepare derivative works of Customer information and materials, solely for the purpose of performing Services, with no right to grant sublicenses.
6.7. Feedback License. The Parties agree that any feedback or suggestions (“Feedback”) (if any) given hereunder is voluntary. Each party is free to use, disclose, reproduce, license or otherwise distribute the Feedback relating to its own products and services, without any obligations or restrictions of any kind, including intellectual property rights.
7. BUSINESS HOURS
Unless otherwise expressly stated in an SOW, Services shall be performed by Simple Helix from 9:00 A.M. until 5:00 P.M. in the local time zone where the Services are being performed by Simple Helix, Monday through Friday excluding local statutory holidays and any additional holidays that Simple Helix grants to its employees, a list of which can be provided by Simple Helix to Customer prior to the commencement of the Services.
8. INTELLECTUAL PROPERTY INDEMNITY
8.1. Simple Helix. Subject to the limitations of liability set forth in the Agreement, Simple Helix shall (a) defend Customer against any third party claim that the Services and the Work Product (excluding Open Source Software and/or Third Party Materials) delivered by Simple Helix to Customer infringe a third-party’s intellectual property rights, and (b) pay the resulting costs and damages finally awarded against Customer by a court of competent jurisdiction or the amounts stated in a written settlement signed by Simple Helix.
8.2. Customer. Customer shall (a) defend Simple Helix against any third party claim that the materials provided by Customer or its agents for use by Simple Helix infringe a third-party’s intellectual property rights and (b) pay the resulting costs and damages finally awarded against Simple Helix by a court of competent jurisdiction or the amounts stated in a written settlement signed by Customer.
8.3. Process. The foregoing obligations are subject to the following: the indemnitee (a) notifies the indemnitor promptly in writing of such claim, (b) grants the indemnitor sole control over the defense and settlement thereof, (c) reasonably cooperates in response to an indemnitor request for assistance, and (d) is not in material breach of the Agreement. Should such a claim be made, or in the indemnitor’s opinion be likely to be made, the indemnitor may, at its option and expense, (i) procure for the indemnitee the right to make continued use thereof, (ii) replace or modify such so that it becomes non-infringing, (iii) request return of the subject material, or (iv) discontinue the Services and refund the portion of any pre-paid Services fee that corresponds to the period of Services discontinuation. THIS SECTION STATES THE INDEMNITEE’S SOLE AND EXCLUSIVE REMEDY AND THE INDEMNITOR’S ENTIRE LIABILITY FOR THIRD PARTY INFRINGEMENT CLAIMS.