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coloagree | Macminicolo

EQUIPMENT COLOCATION AND SERVICES AGREEMENT

This Equipment Colocation And Services Agreement ("Agreement") is entered into as of the date of application between Macminicolo.net ("MMC "), a Nevada Corporation, and the customer named in the application ("CUSTOMER").

NOW, THEREFORE, in consideration of the mutual promises and agreements contained herein and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties agree as follows:

I. DEFINITIONS
As used in this Agreement, the following definitions shall apply:

A. “Bandwidth Fee” shall be the fees charged by MMC to CUSTOMER for bandwidth usage on high-speed internet connections furnished by MMC as set forth in more detail in The Addendum(s) appended hereto.

B. “Data Center Fee” shall be the fees charged by MMC to CUSTOMER for usage of MMC’s Data Center services. Such fees are set forth in more detail in The Addendum(s) appended hereto.

C. "Equipment” shall be the MAC MINI personal computers and other ancillary equipment provided and/or purchased by CUSTOMER and/or rented from MMC for use by CUSTOMER in the co-location facilities leased by CUSTOMER from MMC.

D. “Equipment Rental” shall mean the rental payments made by CUSTOMER to MMC for the rental of Equipment by CUSTOMER from MMC during the Rental Term; the terms of such equipment Rental being further set forth in The Addendum(s) to this Agreement. The Equipment Rental Fee shall be in addition to the Set-Up Fee, Bandwidth fee, IP Address Fee and Monthly Rental to be charged by MMC to CUSTOMER for housing CUSTOMER’S Equipment at MMC’s Facilities as set forth in this Agreement. CUSTOMER shall not be required to rent any Equipment from MMC as a condition to this Agreement

E. “Facilities” shall be those facilities provided by MMC for housing and co-locating CUSTOMER’S Equipment pursuant to this Agreement. Such Facilities shall be provided by MMC at secure locations subject to MMC’s sole control.

F. “Hot Standby Club” shall be those services rendered by MMC to CUSTOMER, including providing substitute equipment when CUSTOMER’s Equipment is being repaired and or upgraded.

G. “IP Address Fee” shall be the fee charged to CUSTOMER by MMC for CUSTOMER’s IP Addresses provided by MMC, as further set forth in The Addendum(s) to this Agreement.

H. “Operating Expenses” means all expenses that MMC must reasonably pay in connection with the ownership, operation, and maintenance of the Facilities.

I. "Purchase Price" shall mean the amounts paid by Customer for purchasing the Equipment to be installed and maintained by MMC at MMC’s facilities. The Purchase Price shall be set forth in the Purchase Option Addendum appended hereto. Such purchases by CUSTOMER will be made prior to the commencement of the Rental Term as defined below. CUSTOMER shall not be required to Purchase any Equipment from MMC under the terms of this Agreement.

J. “Set Up Fee” shall be the fee charged to CUSTOMER by MMC for setting up CUSTOMER’s account, equipment and service at MMC’s facilities, such set-up fee further set forth in The Addendum(s) to this Agreement.

K. "Support" shall mean support and maintenance services for the Equipment provided and/or maintained by MMC at MMC’s facilities under this Agreement and at the rates set forth in The Addendum(s) to this Agreement.

II. Services To Be Provided By MMC
A. CUSTOMER Agrees to lease and MMC agrees to provide certain secure facilities for housing and colocating CUSTOMER’S Equipment at such server locations determined by MMC, including at MMC’s expense, security, lighting and electric utility service to the Equipment. It is agreed and understood by the parties that the Equipment purchased by CUSTOMER, shall remain the sole and exclusive property of CUSTOMER, but shall be housed and operated from the co-location Facilities provided by MMC pursuant to this Agreement. CUSTOMER may, at CUSTOMER’s option, choose to obtain additional services from MMC as are more fully set forth in The Addendum(s) appended hereto.

B. CUSTOMER shall at CUSTOMER’s sole cost and expense, deliver the Equipment to MMC’s Facilities prior to the commencement of the Lease Term. Alternatively, CUSTOMER may choose to purchase the Equipment from MMC according the price list set forth in The Addendum(s) appended hereto, or at CUSTOMER’S option may choose to rent the Equipment from MMC, agreeing to pay the Equipment Lease Rental payments and other fees outlined in The Addendum(s) appended hereto .

C. Overall responsibility for the Equipment maintenance and repair shall remain with the CUSTOMER. The CUSTOMER shall be responsible for contacting and coordinating with their maintenance contractors and supervise their performing corrective maintenance on the Equipment.

D. Unless specifically provided otherwise herein, the Equipment and use thereof, including any data residing on the Equipment, shall be exclusively controlled by CUSTOMER, for CUSTOMER’S internal business use. MMC may neither acquire, monitor other otherwise access information or data belonging to CUSTOMER stored or maintained on the Equipment.

III. LEASE TERM AND RENTALS

A. Subject to all of the terms and conditions set forth herein, or in any addendum hereto, the term of this Agreement shall be for a period as made in the application beginning on the date of application . During the Lease Term CUSTOMER shall be bound by all terms and provisions hereof.

B. The rental payable to MMC for the term hereof shall be the sum of all fees for the term of the Agreement. The aforesaid Rental shall be due and payable in equal monthly installments, in the amounts specified in the application, each (“Rental Installments”) on the first day of each calendar month during the term of this Agreement and any extensions or renewals hereof, and CUSTOMER hereby agrees to pay such Rental Installments on a monthly basis in advance by way of authorizing MMC to draft against CUSTOMER’S credit card account; provided, however, that the first Rental Installment due hereunder shall be paid to MMC upon CUSTOMER’S execution of this Agreement. In addition, if the beginning date of the Lease Term shall be other than the first day of a calendar month, then the pro rata portion of the Rental Installment applicable to the partial month of occupancy shall be paid to MMC on or before the first day of the Lease Term.

C. CUSTOMER agrees to pay to MMC in addition to Rentals, the applicable Set Up Fees, Bandwidth Fees, IP Address Fees, Hot Standby Club fees, and such other Fees as are agreed upon by and between CUSTOMER and MMC, such fees being further set forth in The Addendum(s) hereto.

D. If CUSTOMER wishes to terminate this Agreement prior to the end of the Lease Term specified on the Application, CUSTOMER may elect an Early Buy Out. The amount due in an Early Buyout shall be the LESSER of : 1)  the aggregate sum of the Rental Installments and other charges remaining in the lease term ; or 2) an amount equal to five months Rental Installments and other charges in the terms. If the Customer opted for the discounted Pre-pay option, no Early Buy Out is available. The customer may request his machine back at anytime, but the pre-pay amount is forfeited.
 
E. If the Customer is in Breach of this Agreement, MMC at its sole option may order the Customer to purchase an Early Buy Out and Customer agrees to the Early Buy Out.
 
F. CUSTOMER must notify MMC in writing of any disputed charges within 15 days of the date of the billing for such charges. If the Customer does not notify MMC within that time period, the Customer has waived any right to dispute such amounts, either directly or indirectly or as a set-off, or defense in any action or efforts to collect amounts due to MMC.

G. For purposes of making payments of Rentals and other fees due from CUSTOMER hereunder, CUSTOMER shall provide MMC with a valid credit card account number and authorization, so as to allow MMC to charge such account for all Rental Installments and/or other amounts due hereunder from time to time as such charges come due. In the event such charges are refused for any reason other than termination of this Agreement, CUSTOMER shall immediately provide MMC with another credit card account for purposes of allowing MMC to continue to charge CUSTOMER Rental Installments as they come due.

H. CUSTOMER acknowledges and agrees that any Rental Installment or other charge or fee due MMC hereunder and which is not paid on or before the due date thereof shall bear interest at the lesser of ( i ) the rate of 18% per annum or (ii) the maximum rate of interest permitted by applicable law (now or hereafter enacted), from the date due until paid.

I. MMC may terminate this Agreement in the event CUSTOMER (a) fails to make when due any payment required under this Agreement and such default continues for 10 days after receipt of written notice thereof; or (b) materially breaches any of its other obligations under any provision of this Agreement, which breach is not remedied within thirty (30) days after written notice thereof by MMC to CUSTOMER. In its discretion, upon the occurrence of any of the foregoing conditions, MMC may at any time terminate this Agreement.

J. Upon termination of this Agreement, either due to the expiration of the Lease Term or as a result of termination by MMC, CUSTOMER shall immediately remove its Equipment from the Facilities. Notwithstanding termination of this Agreement and Agreement, MMC shall be entitled to full contract payment of all amounts that may be due to it from the Customer.

IV. INSTALLATION
MMC shall install the Equipment at one or more of its Facilities upon receipt thereof from CUSTOMER and shall connect such Equipment to electric utility service and such telecommunications services as is provided by MMC so as to allow CUSTOMER remote access to the Equipment.

V. NETWORK SUPPORT AND MAINTENANCE

A. MMC agrees to locate the Equipment in one of its manned data centers and shall exercise reasonable efforts to ensure network services are provided on an uninterrupted basis to CUSTOMER. However, MMC is not responsible for errors or malfunctions caused by any hardware, network problems, or any third-party operating system or CUSTOMER error. Maintenance and support services provided by MMC shall not include services for problems arising out of (a) tampering, modification, alteration, or addition to the Hardware or Software, which is undertaken by persons other than MMC or its authorized representatives; or (b) programs or hardware supplied by the Customer.

B. From time to time, MMC may conduct routine tests, maintenance, upgrade or repair on any part of the system, and MMC shall give the CUSTOMER prior notice thereof. CUSTOMER acknowledges that there may be instances where it is not practicable for MMC to give advance notice of a disruption, for example, in the event of an emergency, and MMC shall be entitled to disrupt the services to conduct restoration and remedial works without prior notice.

VI. ACKNOWLEDGMENT OF MMC'S OWNERSHIP RIGHTS

A. MMC acknowledges that it obtains no ownership rights in or to the Equipment or any data and/or information contained thereon, unless provided otherwise in The Addendums. Notwithstanding the foregoing, any Equipment leased by CUSTOMER from MMC will remain the sole property of MMC until CUSTOMER exercises its purchase option and makes payment to MMC for such Equipment.

VII. CONFIDENTIAL INFORMATION

A. Each party acknowledges that during the term of this Agreement, it may have access to confidential information and trade secrets of the other party (collectively, "Confidential Information"). Each party agrees to use the Confidential Information of the other party (disclosing party) solely for the purpose of providing or utilizing the services provided hereunder or as required to perform its obligations under this Agreement. Each party (receiving party) agrees to discuss the Confidential Information of the disclosing party only with, and to transmit the Confidential Information only to, those officers, employees and consultants of the receiving party who have a need to know the Confidential Information for the purposes set forth herein and who shall agree to be bound by the terms of this paragraph VIII.

B. The receiving party shall take commercially reasonable security precautions to prevent the unauthorized use and disclosure of the Confidential Information of the disclosing party and shall use not less than the same degree of care the receiving party employs with respect to its confidential information of like importance. The receiving party shall not permit unauthorized access to the Confidential Information.

C. Information shall not be deemed Confidential Information if such information (i) is previously known to the receiving party without restriction on disclosure, (ii) is or becomes publicly known, through no wrongful act of the receiving party, (iii) was received without restrictions on use or disclosure, by the receiving party from a third party who is free to disclose it without obligation to the disclosing party or (iv) is independently developed by the receiving party; or upon the expiration of three years after the termination of this Agreement.

VIII. CUSTOMER'S OBLIGATION FOR DATA PROTECTION AND SERVICE INTERRUPTIONS

A. CUSTOMER shall have sole responsibility for making backups of the data on the Equipment housed at MMC’s facilities, so that the likelihood of data loss is minimized. CUSTOMER shall be solely responsible for backup software and all hardware. CUSTOMER shall also be solely responsible for keeping its computer system free of computer viruses.

B. MMC shall not be liable for failure or delay in performing its obligations hereunder if such failure or delay is due to circumstances beyond its reasonable control, including, without limitation, acts of any governmental body, war, insurrection, sabotage, embargo, fire, flood, strike or other labor disturbance, interruption of or delay in transportation, unavailability of or delay in telecommunications or third party services, failure of third party software or inability to obtain raw materials, supplies, or power used in or equipment needed for provision of the Services.

IX. OVERALL LIMITATION OF DAMAGES AND REMEDIES

A. CUSTOMER AGREES THAT MMC WILL NOT BE LIABLE TO CUSTOMER FOR LOST PROFITS, LOST OPPORTUNITIES OR LOST DATA, OR ANY INCIDENTAL, INDIRECT, SPECIAL, CONSEQUENTIAL OR PUNITIVE DAMAGES UNDER ANY CIRCUMSTANCES WHATSOEVER, EVEN IF CUSTOMER HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.

B. IN NO EVENT SHALL THE AGGREGATE AMOUNT OF ANY DAMAGES PAYABLE TO CUSTOMER FROM MMC FOR ALL CLAIMS ARISING FROM THE BREACH OF THIS AGREEMENT) EXCEED THE AMOUNTS PAID BY CUSTOMER TO MMC UNDER THIS AGREEMENT.

X. INDEMNITY
CUSTOMER WILL INDEMNIFY, DEFEND AND HOLD HARMLESS MMC AND ITS OFFICERS, EMPLOYEES, SUBSIDIARIES, REPRESENTATIVES AND AFFILIATES FROM AND AGAINST ANY AND ALL LIABILITIES, LOSSES AND REASONABLE EXPENSES (INCLUDING, BUT NOT LIMITED TO, REASONABLE ATTOMEYS' FEES) (COLLECTIVELY, "LOSSES") RESULTING FROM ANY CLAIM, SUIT, ACTION OR PROCEEDING (COLLECTIVELY "ACTIONS”) MMC'S INDEMNIFICATION OBLIGATIONS HEREUNDER SHALL BE SUBJECT TO (I) RECEIVING PROMPT WRITTEN NOTICE OF THE EXISTENCE OF ANY ACTION; (II) BEING ABLE, AT ITS OPTION, TO CONTROL THE DEFENSE OF SUCH ACTION; (III) PERMITTING THE CUSTOMER TO PARTICIPATE IN THE DEFENSE OF ANY ACTION AT THE EXPENSE OF CUSTOMER, AND (IV) RECEIVING FULL COOPERATION OF CUSTOMER IN THE DEFENSE THEREOF.

XI. ASSIGNMENT
CUSTOMER may not assign any or all of its rights or obligations under this Agreement without the express prior written consent of MMC, and that consent may be granted or withheld at MMC's sole discretion. Any purported assignment by CUSTOMER, except as provided for in this paragraph, shall be null and void and a material breach of this Agreement.

XII. GENERAL PROVISIONS
A. Shipping Costs and Risk of Loss. All costs relating to the shipment of CUSTOMER’S Equipment to/from MMC’s Facilities, including freight and insurance costs, shall be borne by CUSTOMER.

B. Taxes. CUSTOMER shall pay, in addition to the other amounts payable under this Agreement, all local, state and federal excise, sales, use, personal property and similar taxes (excluding taxes imposed on or measured by CUSTOMER’S net income) levied or imposed by reason of the transactions under this Agreement. CUSTOMER shall, upon demand, pay to MMC an amount equal to any such tax(es) actually paid or required to be collected by MMC as a result of storing CUSTOMER’S equipment at MMC’s Facilities.

C. No Waiver. The failure of either party to exercise any right or the waiver by either party of any breach, shall not prevent a subsequent exercise of such right or be deemed a waiver of any subsequent breach of the same of any other term of the Agreement. All waivers must be in writing.

D. Disclaimer of Warranties. MMC specifically disclaims all implies warranties, including but not limited to, the implied warranties of merchantability and fitness for a particular purpose. Except as otherwise provided in this Agreement, any written materials by MMC or information on MMC’s web site, shall be for informational purposes only and, whether delivered or disseminated before or after the date of this Agreement, shall not create any express or implied warranties, guaranty of performance, or contractual obligations.

E. Compliance With Laws. CUSTOMER shall use the Equipment in a careful and proper manner and shall comply with and conform to all national, state, municipal, police and other laws, ordinances and regulations in any way relating to the possession, use or maintenance of the Equipment.

F. Equitable Remedies; Costs, and Attorneys Fees. The parties recognize that money damages may not be an adequate remedy for any breach or threatened breach of any obligation hereunder, by CUSTOMER. The parties therefore agree that in addition to any other remedies available hereunder, by law or otherwise, MMC shall be entitled to an injunction or other equitable relief against any such continued breach by CUSTOMER of such obligations. In any action proceeding brought by MMC on account of such breach by CUSTOMER, CUSTOMER agrees not to require that MMC post a bond or prove that money damages are not an adequate remedy. The prevailing party in any claim brought pursuant to this Agreement is entitled to recover its costs and attorneys’ fees from the other party.

G. Force Majeure. Neither party shall be deemed in default of this Agreement to the extent that performance of their obligations or attempts to cure any breach are delayed or prevented by reason of any act of God, fire, natural disaster, accident, act of government, shortages of materials or supplies or any other cause beyond the control of such party ("Force Majeure') provided that such party gives the other party written notice thereof promptly and, in any event, within fifteen (15) days of discovery thereof and uses commercially reasonable efforts to cure the delay. In the event of such Force Majeure, the time for performance or cure shall be extended for a period equal to the duration of the Force Majeure but not in excess of three (3) months.

H. Entire Agreement; Modification; Notice. This Agreement, including The Addendum(s), constitutes the sole and entire agreement of the parties with respect to the subject matter hereof and supersedes any prior oral or written promises or agreements. There are no promises, covenants, undertakings or inducements to enter into this Agreement other than those expressly set forth in this Agreement. This Agreement may not be modified or amended except by a writing which is signed by authorized representatives of each of the parties. Any notice required or permitted to be sent hereunder shall be in writing and shall be sent in a manner requiring a signed receipt, such as Federal Express, courier delivery, or if mailed, registered or certified mail, return receipt requested. Notice is effective upon receipt, unless the addressee refuses to acknowledge receipt, in which event notice is effective upon delivery.

I. Applicable Law, Jurisdiction and Venue. This Agreement shall be construed pursuant to substantive law of the State of Nevada (excluding its conflicts of laws). Any cause or action arising out of or related to this Agreement (including an action to confirm or challenge an arbitration award) may only be brought in the county or the Federal district wherein MMC's principal place of business is located, and the parties hereby submit to the jurisdiction and venue of such courts.

 

EQUIPMENT RENTAL OPTION ADDENDUM

1. In addition to CUSTOMER’S obligations in the attached Agreement, CUSTOMER desires to rent from MMC during the Term of the attached Agreement, the equipment in the applicatioin.

2. Monthly Equipment Rentals shall be due from CUSTOMER each month during the Rental Term. On the first day of each calendar month during the term of this Agreement and CUSTOMER hereby agrees to pay such Monthly Equipment Rentals on a monthly basis in advance by way of authorizing MMC to draft against CUSTOMER’S credit card account.

3. Unless otherwise noted, all rented Equipment shall be covered by all manufacturers warranties. MMC makes no warranties whatsoever, express or implied regarding the condition and/or suitability of the foregoing items rented by CUSTOMER, other than the representation that such items were obtained from the respective manufacturer prior to the commencement of this Equipment Rental.

4. CUSTOMER hereby assumes and shall bear the entire risk of loss and damage to the Equipment from any and every cause whatsoever. No loss or damage to the Equipment or any part thereof shall impair any obligation of CUSTOMER under this Rental, which shall continue in full force and effect through the term of the Rental. In the event of loss or damage of any kind whatever to the Equipment, CUSTOMER shall, at MMC's option: Place the same in good repair, condition and working order; or replace the same with like equipment in good repair, condition and working order; or pay to MMC the replacement cost of the Equipment.

5. Upon the expiration or earlier termination of this Rental, CUSTOMER shall return the Equipment to MMC in good repair, condition and working order, ordinary wear and tear resulting from proper use thereof alone excepted, by delivering the Equipment at CUSTOMER's cost and expense to such place as MMC shall specify within the city or county in which the same was delivered to CUSTOMER.

6. CUSTOMER shall keep the Equipment free and clear of all levies, liens and encumbrances. CUSTOMER, or MMC at CUSTOMER's expense, shall report, pay and discharge when due all license and registration fees, assessments, sales, use and property taxes, gross receipts, taxes arising out of receipts from use or operation of the Equipment, and other taxes, fees and governmental charges similar or dissimilar to the foregoing, together with any penalties or interest thereon, imposed by any state, federal or local government or any agency, or department thereof, upon the Equipment or the purchase, use, operation or leasing of the Equipment or otherwise in any manner with respect thereto and whether or not the same shall be assessed against or in the name of MMC or CUSTOMER. However, CUSTOMER shall not be required to pay or discharge any such tax or assessment so long as it shall, in good faith and by appropriate legal proceedings, contest the validity thereof in any reasonable manner which will not affect or endanger the title and interest of MMC to the Equipment; provided, CUSTOMER shall reimburse MMC for any damages or expenses resulting from such failure to pay or discharge.

7. In case of failure of CUSTOMER to procure or maintain said insurance or to pay fees, assessments, charges and taxes, all as specified in this Rental, MMC shall have the right, but shall not be obligated, to effect such insurance, or pay said fees, assignments, charges and taxes, as the case may be. In that event, the cost thereof shall be repayable to MMC with the next installment of rent, and failure to repay the same shall carry with it the same consequences, including interest at ten percent (10%) per annum, as failure to pay any installment of rent.

8. CUSTOMER shall indemnify MMC against, and hold MMC harmless from, any and all claims, actions, suits, proceedings, costs, expenses, damages and liabilities, including reasonable attorney's fees and costs, arising out of, connected with, or resulting from CUSTOMER's use of the Equipment, including without limitation the manufacture, selection, delivery, possession, use, operation, or return of the Equipment.

10. If CUSTOMER fails to pay any rent or other amount herein provided within ten (10) days after the same is due and payable, or if CUSTOMER fails to observe, keep or perform any other provision of this Rental required to be observed, kept or performed by CUSTOMER, MMC shall have the right to exercise any one or more of the following remedies: To declare the entire amount of rent hereunder immediately due and payable without notice or demand to CUSTOMER; to sue for and recover all Rentals, and other payments, then accrued or thereafter accruing; to take possession of the Equipment, without demand or notice, wherever same may be located, without any court order or other process of law; to terminate this Rental; to pursue any other remedy at law or in equity.

CUSTOMER hereby waives any and all damages occasioned by such taking of possession. Notwithstanding any repossession or any other action which MMC may take, CUSTOMER shall be and remain liable for the full performance of all obligations on the part of the CUSTOMER to be performed under this Rental. All of MMC's remedies are cumulative, and may be exercised concurrently or separately.

11. Neither this Rental nor any interest therein is assignable or transferable by operation of law. If any proceeding under the Bankruptcy Act, as amended, is commenced by or against the CUSTOMER, or if the CUSTOMER is adjudged insolvent, or if CUSTOMER makes any assignment for the benefit of his creditors, or if a writ of attachment or execution is levied on the Equipment and is not released or satisfied within ten (10) days thereafter, or if a receiver is appointed in any proceeding or action to which the CUSTOMER is a party with authority to take possession or control of the Equipment, MMC shall have and may exercise any one or more of the remedies set forth in Section 14 hereof; and this Rental shall, at the option of the MMC, without notice, immediately terminate and shall not be treated as an asset of CUSTOMER after the exercise of said option.

12. The Equipment is, and shall at all times be and remain, the sole and exclusive property of MMC; and the CUSTOMER shall have no right, title or interest therein or thereto except as expressly set forth in this Rental.

13. If MMC shall so request, CUSTOMER shall execute and deliver to MMC such documents as MMC shall deem necessary or desirable for purposes of recording or filing to protect the interest of MMC in the Equipment including, but not limited to a UCC financing statement.

14. CUSTOMER shall not assign this Rent or its interest in the Equipment without the prior written consent of MMC.

15. The invalidity or unenforceability of any provision in this Agreement shall not cause any other provision to be invalid or unenforceable.

16. This Lease shall be construed and enforced according to laws of the State of Nevada. This instrument constitutes the entire agreement between the parties on the subject matter hereof and it shall not be amended, altered or changed except by a further writing signed by the parties hereto.

MISCELLANEOUS SERVICES ADDENDUM

Prices to bs caluclated at rates at http://www.macminicolo.net/price.html at time and date of acceptance of this agreement

About Macminicolo Macminicolo, a Las Vegas colocation company, has been hosting Mac minis since their introduction in January 2005. They are the leaders in this niche market and are known for their personal service. They currently host hundreds of Mac minis for satisfied customers located in 36 different countries around the world. Get more info on our frequently asked questions page.

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