EQUIPMENT COLOCATION AND
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:
As used in this Agreement, the following definitions shall
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)
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
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
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
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,
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
F. CUSTOMER must notify MMC in writing of any disputed
charges within 15 days of the date of the billing for such
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.
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.
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
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
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
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
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,
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
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
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
OF THIS AGREEMENT) EXCEED THE AMOUNTS PAID BY CUSTOMER TO
MMC UNDER THIS AGREEMENT.
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
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,
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
D. Disclaimer of Warranties. MMC specifically disclaims
all implies warranties, including but not limited to, the
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
to all national, state, municipal, police and other laws,
ordinances and regulations in any way relating to the possession,
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
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
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
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
and shall be sent in a manner requiring a signed receipt,
such as Federal Express, courier delivery, or if mailed,
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
(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
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.
Monthly Equipment Rentals shall be due from CUSTOMER each
month during the Rental Term. On the
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
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
shall specify within the city or county in which the same was delivered to
6. CUSTOMER shall keep the Equipment free and clear of all levies, liens
and encumbrances. CUSTOMER, or MMC at CUSTOMER's expense, shall report,
discharge when due all license and registration fees, assessments, sales,
use and property taxes, gross receipts, taxes arising out of receipts from
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
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
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
8. CUSTOMER shall indemnify MMC against, and hold MMC harmless from,
any and all claims, actions, suits, proceedings, costs, expenses, damages
including reasonable attorney's fees and costs, arising out of, connected
with, or resulting from CUSTOMER's use of the Equipment, including without
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
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
immediately due and payable without notice or demand to CUSTOMER; to sue
for and recover all Rentals, and other payments, then accrued or thereafter
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,
if a writ of attachment or execution is levied on the Equipment and is
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
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
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
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
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
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