Last revised: 07/10/23
These Otava Colocation Terms of Use (“Colocation Terms”) are entered into by and between Otava and Client on the effective date set forth on the Sales Order (“Effective Date”). These Colocation Terms provide additional terms and conditions specific to Otava Colocation Services and are not intended to replace or supersede the Master Agreement between Parties, unless agreed upon in writing by both Parties. Client understands that these Colocation Terms are legally binding where Client’s Sales Order includes Otava Colocation Services as a line item and agrees to be bound thereby. Otava and Client are referred to herein collectively, as the “Parties” and individually, each a “Party.”
2.1. “Agreement” means The Master Agreement entered into between Parties, as applicable, together with these Colocation Terms, the Data Center Rules of Use, Statements of Work, if any, and all applicable service specific terms linked to or refenced in the Agreement.
2.2. “Data Center” means the data center(s) owned or leased and operated by Otava.
2.3. “Data Center Rules of Use” or “DCRU” means Otava’s Data Center Rules of Use available at https://www.otava.com/legal/data-center-rules-of-use/.
2.4. “Master Agreement” means The General Terms of Sale, the Master Service Agreement, or the Master Terms, as applicable, between Parties.
2.5. “Sales Order” means a separately executed document that describes the Services to be performed by Otava.
2.6. “Services” means the services purchased by Client from Otava as set forth in one or more Sales Orders.
3.1. Access to Colocation. Subject to Client’s compliance with the Agreement, Otava hereby grants Client a nonexclusive, revocable, limited license to install, maintain, and operate certain equipment (“Equipment”) as specified in the Sales Order in a designated location in a Data Center (“Colocation Space”). Client accepts the Colocation Space on an “AS IS, WHERE IS” basis. Client may use the Colocation Space only as specified in the Agreement. OTAVA HEREBY RESERVES ALL RIGHTS NOT EXPRESSLY GRANTED TO CLIENT, including, without limitation, the right to: (a) access and use the Data Center for Otava’s own use and for the use of Otava’s agents; and (b) grant additional licenses to the Data Center to other users. Client acknowledges and agrees that Client is granted only a license to occupy the Colocation Space, and that such license does not create or vest in Client any leasehold estate, easement, ownership interest, or other property right of interest of any nature in any part of the Data Center. The limited license granted pursuant to this Section 3.1 is expressly made subject and subordinate to the terms and conditions of any underlying ground or facilities lease or other superior right by which Otava has acquired its interest in the Data Center.
3.2. Use of Colocation Space. Client will use the Data Center and the Colocation Space solely for the purpose of installing, maintaining, and operating the Equipment and for no other purpose, without Otava’s prior written consent. Client will not interfere with or connect Client’s Equipment to that of any customer of Otava or any other tenant or customer within the Data Center, without Otava’s prior written consent. Client will, at its own cost and expense, protect, maintain, and keep in good order the Colocation Space and the Equipment in the Colocation Space, and will ensure that neither Client nor its employees, agents, contractors, or invitees damage any part of the Data Center, the Colocation Space, or any equipment located in or about the Data Center. Further, Client will encrypt all data stored on any hard drives present in the Colocation Space, where such method of encryption may be through self-encrypting hard drives or third-party encryption software, but must at all times meet encryption requirements under applicable federal and state data breach notification laws.
3.3. Modifications. Client will not, without Otava’s prior written approval, commence any addition, alteration, interconnection, or installation to the Data Center, the Colocation Space, or the Equipment, or undertake any modification or upgrade to the Equipment, that might affect the use of the Data Center or other equipment by Otava or any other Otava customer. Client will pay or cause to be paid all costs and charges (a) for work done by Client or caused to be done by Client in or about the Colocation Space; and (b) for all materials furnished for or in connection with such work. Otava will reimburse Client for reasonable repair and restoration costs incurred as a result of damage caused to the Equipment owned by Client and housed in the Colocation Space, where such damage resulted solely from Otava’s negligence.
3.4. Colocation Space Liens. Client will keep the Data Center free and clear of and from any and all mechanics’ liens, materialmen’s liens, and claims of liens, and any and all other claims, costs, demands, expenses, liabilities, and liens of any kind or nature, arising out of or in any manner connected with work done by or on Client’s behalf at any Data Center. Client will further undertake the most expedient avenue for removal of any lien or similar encumbrance from an affected Data Center arising out of or in any manner connected with work done by or on Client’s behalf at any Data Center. Notwithstanding the foregoing, Otava will have the right, but not the obligation, to take the necessary steps for removal of such lien or other encumbrance and Client will immediately reimburse Otava upon demand for all costs and expenses (including for staff time, legal fees, and interest) related thereto.
3.5. Relocation. On not less than 60 days’ prior written notice to Client, Otava may relocate the Data Center or all or any portion of the Colocation Space designated for Client’s Equipment. The Parties will cooperate in good faith to prevent any interruption of Client’s Services.
3.6. Insurance. In addition to Client’s other insurance obligations set forth in the Agreement, Client will maintain for the duration of the Services Term and at Client’s sole expense, (a) Worker’s Compensation and disease insurance in an amount not less than that prescribed by statutory limits; and (b) Property Insurance on an “all risk” form covering equipment and personal property owned or leased by Client and used or stored at a Data Center.
In addition to those representations and warranties provided in the Master Agreement, Client represents and warrants that Client will not and will not permit any third party (including, without limitation, any personnel under Client’s authority or control) to (a) use the Services in a manner that materially violates the Data Center Rules of Use; and (b) without the prior written consent of Otava, (i) install any power generating equipment (e.g., battery) to the power circuits; or (ii) make any material alterations to the Colocation Space.
Client agrees to indemnify, defend, and hold Otava and its affiliates and its and their respective officers, directors, employees, agents, suppliers, licensors, and third party partners harmless from and against any and all claims, demands, reasonable costs actually incurred, reasonable expenses actually incurred, losses, liabilities, and damages of every kind and nature (including, without limitation, reasonable attorneys’ fees actually incurred) imposed upon or incurred by the indemnified parties directly or indirectly arising from (a) Client’s or Client’s agents’ use of or access to the Services or Colocation Space; (b) Client’s or Client’s agents’ material violation of any provision of the Data Center Rules of Use; and (c) any and all mechanics’ liens, materialmen’s liens, and claims of liens, arising out of or in any manner connected with work done by or on Client’s behalf at any Data Center. Without in any way limiting the immediately preceding sentence, Client agrees to reimburse Otava for any and all reasonable repair or restoration costs associated with any or all of the following: (i) damage or destruction caused by Client’s cabling, hardware, software, power supplies, and other equipment; and (ii) Client’s actions or inactions as well as the actions or inactions of Client’s agents.
In addition to the fees set forth in the applicable Sales Order, Client understands and agrees to pay Otava, as applicable, additional fees as set forth in this Section 6 (Other Fees). If the applicable power utility company increases the price paid by Otava for power provided to any Data Center, Otava reserves the right to pass-through the price increase to Client upon written notice, which notice will be provided via service ticket or email to the Client. If Client overloads a circuit and trips a breaker, Otava may charge and Client will pay a $150 reconnect fee. Otava reserves the right to inspect equipment prior to any reconnection. If Client uses more than the amperage or cabinet capacity stated on the Sales Order, Otava may charge and Client will pay, at Otava’s then-current services rate, for the additional service. Further, Client understands that Otava may charge and Client will pay additional fees for any other services that Otava provides (including, without limitation, additional bandwidth, circuits, services at other Otava Data Centers, third-party software licenses, and so forth) and that are not expressly identified as a line item in the Sales Order identifying the colocation Services or as a line item in another Sales Order in effect between the Parties. Unless otherwise set forth in the applicable Sales Order, (a) all such additional fees will be charged to Client at Otava’s then current rates for the relevant services and in the subscription manner generally charged (e.g., per license, based on consumption, and so forth); and (b) any technical support services provided by Otava will be provided on a time and materials basis at Otava’s then current technical support rates, provided that Otava will provide Client with written notice prior to undertaking work that will result in any such fees.
Upon expiration or termination of these Colocation Service Terms for any reason, in addition to any obligations set forth in the Master Agreement, Client will promptly remove Equipment from Client’s Colocation Space. Client further agrees to reimburse Otava for any and all reasonable repair or restoration costs associated with damage or destruction caused by the removal of Client’s Equipment or property installed in the Colocation Space, except for reasonable wear and tear.
