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Multi Site Colocation Commitment Agreement

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Exhibit 10.27
MULTI SITE
COLOCATION COMMITMENT
AGREEMENT


This Agreement ("Agreement') is made and entered into this 17th day of February, 2000 by and between RateXchange, a Delaware corporation ("CUSTOMER") and COLO.COM, a California corporation ("COLO").


COLO builds, operates and maintains Neutral Central Offices ("NCOs") and provides space in the NCOs as outsourced facilities for the deployment of Customer's networks. COLO also provides a variety of services to meet its customers' needs.


CUSTOMER desires to license space and receive services from COLO in the NCOs, as and when space becomes available in specified locations.


CUSTOMER and COLO therefore agree as follows:


1. CUSTOMER irrevocably agrees to a THREE MILLION FIVE HUNDRED THOUSAND AND NO/100 DOLLARS ($3,500,000.00) revenue commitment to COLO for Space at the Premises (Space and Premises having the meaning as defined in COLO.COM Terms and Conditions for Delivery of Service, attached hereto as Exhibit "B") and to pay license fees for the Space(s) for the time periods specified on Exhibit "A" attached hereto and incorporated herein for all purposes, as and when said Space becomes available. If COLO is unable to have the Space ready within thirty (30) days of the desired delivery date at any of the specified Premises, Customer, at its sole discretion may elect to terminate its obligation for said Space at said Premises and be relieved of any term and financial commitment for same. Customer agrees to begin payment of entire revenue commitment no later than December 31, 2000.


2. COLO will give CUSTOMER 100 days advance written notice of the activation date for the Space(s) of each location, and provide written confirmation of the activation date every two weeks thereafter. By making this commitment CUSTOMER agrees that it will pay the activation fee and the minimum monthly amounts for the term shown on Exhibit "A".


3. CUSTOMER's use of the space and this Agreement will be governed by COLO.COM Terms and Conditions for Delivery of Service a copy of which is attached as Exhibit "B".


4. COLO plans to build, operate and maintain NCOs at the locations shown on Exhibit "A" and will license to CUSTOMER the minimum amounts of space shown on Exhibit "A" as and when the Space(s) becomes available.


5. This Agreement will be governed and interpreted in accordance with the laws of the State of California. In the event legal action is brought to enforce this Agreement the prevailing party shall be entitled to recover reasonable attorneys fees and costs incurred in the action.


- -------------------------------------------------------------------------------- RateXchange Multi Site Colocation Commitment Agreement Page 1 of 1


Upon execution of this Agreement by the duly authorized individuals of CUSTOMER and COLO the revenue commitment described herein becomes effective as of the date stated above.


COLO:


COLO.COM,
a California corporation


By: /s/ John F. Mevi, III
------------------------------


Printed Name: John F. Mevi, III
--------------------


Title: VP, Sales


---------------------------


CUSTOMER:


RateXchange, Inc.
a Delaware corporation


By: /s/ Paul A. Wescott, Jr.
------------------------------


Printed Name: Paul A. Wescott, Jr.
--------------------


Title: EVP/COO


--------------------


- -------------------------------------------------------------------------------- RateXchange Multi Site Colocation Commitment Agreement Page 2 of 2


1


COLO.COM Terms and Conditions for Delivery of Service


These terms and conditions are applicable to the COLO.COM ("COLO") Service Service Order Form ("Service Order Form") and are incorporated in each Service Order Form.


LICENSE: COLO hereby grants and Customer hereby accepts, a nonexclusive limited license ("License") to colocate computer and communication equipment ("Equipment") in a portion of the controlled space ("Space") located at the premise(s) ("Premise" or "Premises"), subject to Customer's completion of a site survey, listed on the Service Order Form, on an "as is" basis at Customer's own risk. COLO reserves the right to relocate, change or otherwise substitute the exact location of the Space, at any time during the Term of the License, with 60 days written notice, provided that the substitute space is substantially similar to the original Space allotted and within the same geographic location and the relocation is at COLO's cost. In no event may COLO relocate a Licensed Space more than once during the Term of its License nor within the last six (6) months of such Term.


Customer hereby acknowledges and agrees that it has not been granted any real property interest in the Space or any of the Premises and that Customer has no rights as a tenant under any real property or landlord / tenant laws, regulations or ordinances. Customer may not allow anyone else to use the space for any reason.


2. USE OF SPACE. Customer agrees to use the Space solely for the installation, maintenance, operation, and removal of its Equipment. Unless otherwise agreed to by COLO, Customer, or its agents, at its expense, shall install all Equipment into the Space. Customer shall not use or allow any other person to use the Space for any other purpose without first obtaining COLO's prior written consent.


3. CUSTOMER USE. Customer shall abide by any posted or otherwise communicated reasonable and practical policies and procedures relating to COLO's facilities.


4. COLO. COLO will have the right to immediately terminate Customer's License if COLO loses rights to the Premises. COLO will offer any other available space to Customer on a right of refusal based on date of initial contract with COLO. Customer will have 48 hours to accept or decline such offer.


5. SERVICES & FEES. The Service Order Form lists the basic services and prices thereof ("Services") as of the order date. COLO may increase the amount Customer pays for the Services, after the initial term on the Service Order Form, to reflect changes in the CPI. Such increases will not be more often than once a year and will not exceed the CPI plus 2%. Upon request, Customer may purchase additional services for Supplier at the then-prevailing rate.


6. PAYMENT. Customer shall pay COLO when due for all Services ordered or used, including all applicable taxes, surcharges, and other government imposed fees. All Services shall be invoiced on a monthly basis and are due 30 days from the date appearing on the monthly billing statement. Any invoice not paid by the due date shall be deemed delinquent and is subject to interest charges accruing at a rate of 1.5% per month. Customer shall be liable for all costs of collection of any delinquency, including any and all collection agency fees, reasonable attorneys' fees, and court costs.


7. PAYMENT DISPUTE. Should Customer dispute any bill or any portion thereof, Customer shall pay the full amount of the outstanding bill by the due date and then send COLO a written explanation outlining the basis for the dispute. COLO shall investigate any disputed bill within a reasonable time notify Customer of the outcome of such investigation.


8. TERM. The term and Customer's obligation to pay COLO for the use of the Space shall begin as stated in the Multi Site Colocation Commitment Agreement regardless of whether or not Customer actually occupies the Space, and shall continue for the Term Commitment shown on the Service Order From provided however that in the event COLO is unable to deliver such Space(s) to Customer by such date then the parties shall proceed as set forth in the Multi Site Colocation Commitment Agreement. Customer is entitled to a one (1) year automatic renewal at the end of the initial term.


In the event of any termination or cancellation of an Service Order Form or of this Agreement by Customer prior to the end of the term for reason other than COLO's breach thereof, Customer shall, as full settlement of liability for early termination, promptly pay COLO the following percentage of the monthly recurring charged for the remaining term of the Service Order Form or of this Agreement, as applicable: 50%, if termination or cancellation takes place during the first year of this Agreement, 33%, if termination or cancellation takes place during the second year of this Agreement, and 25% if termination or cancellation takes place during the third year of this Agreement. If the Customer does not remove its Equipment from the Premises within thirty (30) days of termination, COLO shall be entitled to remove the equipment and dispose of it in any manner determined by COLO in its sole and absolute discretion without liability to Customer thereof.


9. CONFIDENTIALITY. Each Party, for itself, its agents, employees and representatives agrees that it will not divulge any confidential or propriety information received from the other Party. The terms and conditions of this contract, notwithstanding the fact this agreement has been entered shall be considered confidential or propriety information under this paragraph. Customer will not use COLO's name in marketing materials without the prior written consent of COLO. Customer may grant COLO a limited license to use any of its trade names and / or trademarks or service marks in any news release, marketing materials, or on COLO's web site announcing the agreement provided that COLO obtains Customer's trade names, trademarks or service marks will inure solely to Customer. COLO will not use the consent of Customer and such Customer. This Section 9 does not prohibit either party from disclosing (a) information which is already known to the public other than as a result of disclosure by such party or its officers, directors, employees or agents, (b) information that was known to such party on a non-confidential basis prior to its disclosure by the other party to such party in connection with this agreement, (c) information that becomes known or available to the disclosing party on a non-confidential basis from any source that such party does not know to be subject to a confidentiality agreement covering such information, (d) any information to its attorney or other professional advisors on a need-to-know basis under instruction to keep such information confidential, or (e) any information required by law or by the banding order of any court to be disclosed by such party, except that the disclosing party (i) shall first use reasonable
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