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[COLLOCATION AT CTN1] [COLLOCATION FAQ] [COLLOCATION TOS]
COLOCATION SERVICES GENERAL PROVISIONS
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1. Service Providing
1.1. CTN1 SAS provides the customer with a location (hereinafter called the "Location) designed to support and host the customer's telecommunication and/or computer related equipment (hereinafter called the "Equipment") as well as full access to the power supply installations and civil engineering infrastructures allowing for the customer's telecommunication wire pulling and power supply (hereinafter called the " Ducts"). The above mentioned provided services will hereinafter be called the "Services". Please find more details under Appendix 1 of this agreement.
1.2. The customer's access to the building (hereinafter called the "Building") where the equipment lies, will be submitted to the following conditions: the Customer will get full access to the Building 24/7.
1.3. However, the Customer could get full access to the Building at any time if necessary, to do any maintenance or fixing in case of an emergency. In such a case, the Customer has the obligation of giving to CTN1 a reasonable notice by also taking into account the circumstances and; he also has the obligation of admitting explicitly that an immediate access may turn out impossible under certain conditions. For safety reasons, access will be authorized to the Customer's staff or to the third parties specified by the Customer only after prior notice given in advance by mail or by fax and will be subject to the specified persons' obligation to justify their identity by a valid ID card or passport. CTN1 reserves the right to deny access to the specified persons while the security measures, duly justified by CTN1, request it.
1.4. Only the CTN1 technicians have the right to pass on to the connection and disconnection of the equipment to/from the CTN1 optical fiber wire system (hereinafter called the "CTN1 system"), as well as to the connection and disconnection of the equipment to/from the electrical installations. The connection/disconnection operations will be done upon Customer's written request except for the cases mentioned under articles 2.5, 2.6, 3 and 7.3 of this agreement.
1.5. Only the CTN1 technicians have the right to intervene in case of any maintenance, fixing, installation, un-installation operation affecting the Ducts.
2. Financial Terms
2.1 The Customer has to respect payment terms as stated in the Special Terms, on the basis of pricing conditions referring to raised VAT according to rates in force.
2.2 Installation Fees will be required and due at the Date of the Putting into Service. The Hosting Services Fee as well as costs incurred by the recurrent Additional Services as for instance First Level Assistance or Second Level Assistance as stated under Appendix 1 will be billed in advance every month and be due to the first day of the month. Any payment must be made by wire transfer. On this purpose, CTN1 will give the Customer, as soon as the contract is signed, his/her bank coordinates and undertakes to give prior notification to the Customer on any change of his/her bank coordinates. Any fee due for the Additional non-recurrent Services will be billed on the first day of every month and be due on the receipt of the invoice.
2.3 Any Additional Service delivered by CTN1 as well as any maintenance service, save First Level or Second Level Assistance, or fixing service made by the CTN1 technical staff at the Customer's request, will be billed according to the estimate drawn by CTN1 and previously accepted in written regarding any intervention by the Customer.
2.4 The Customer admits that the Hosting Services Fee has been set and taken as such by the Parties on the basis of the equipment's maximal power consumption as stated under the Special Terms. In this respect, the Customer admits explicitly that any consumption exceeding the authorized limit will lead to putting a strain to power supply capacities of the Building. As a result, when the Customer exceeds the authorized limit, or when he/she is to exceed such a limit, CTN1 can either increase the Hosting Services Fee in order to take into account the Customer's consumption excess or ask the customers to modify the equipment so that the power consumption be reduced to the authorized consumption limits on the basis of this Agreement. In either case, CTN1 will have the legal power to stop the Service providing on prior notice of the Customer (except for characteristic emergencies), every time such a consumption exceeding could put at risk the security of the Building or the continuity in the Service delivery to the other customers of CTN1.
2.5 At any anniversary date of this Agreement, CTN1 could change the Hosting Services Fee as well as the fees corresponding to the Additional Services under Special Terms. Any change will be brought to the Customer's attention in written with one month prior notice and will be calculated according to the formula below:
P = Po (S/So )
S: Latest rate of the hourly cost of any paid work - mechanical industries, published in the B.O.C.C.R.F at the date of the change,
So: Rate of the hourly cost of any paid work - mechanical industries, of the latest rate at the contract signature date, as published in the B.O.C.C.R.F.
P: Changed Fee amount;
Po: Fee amount; in case the current rate is not used, another rate will be substituted to it, among those that are the most closer to it.
In case of a lack of payment from the Customer, the amounts due on the basis of this Agreement within 5 days from the due date, CTN1 reserves the right, after failed formal notice, to (a) bill daily interests on any unpaid amounts as stated in the article at a one and a half rate as compared to the legal interest rate, till the full payment and/or (b) suspend its Services as well as any Additional Service till the full payment and/or disconnect the CTN1 system Equipment (c) terminate this Agreement rightfully and wronged by the Customer after expiring of an at least 8 (eight) day notice sent by e-mail and registered letter with acknowledgement of receipt if the Customer doesn't proceed to the regularization of the payment during the notice time.
3. Equipment Location
3.1 The Customer admits explicitly that this Agreement doesn't grant him any possession right, be it restrictive or not, on any subdivision part of the Building and that CTN1's obligations on the basis of this Agreement are not those of a lessor but those of a service provider. Consequently, CTN1 has the right, at any moment, and this is subject to the Customer's notice by registered letter with acknowledgement of receipt at least one (1) month in advance, to move the Equipment to another Location from inside the Building as that where it has been initially installed or to another building close by the Building. CTN1 will cover all the expenses resulting from the moving and the disconnecting/ reconnecting of the Equipment.
3.2 In the situation of the implementation of the right under the article 3.1, CTN1 has the obligation to do its best so that by making full use of such a right there should only occur a minimal interruption in the Equipment's functioning. Thus, the Customer together with CTN1 will reach an agreement in advance so that they can determine the moving conditions of the Equipment, notably at the day and time of the implementation of the moving operations with the aim of obtaining a minimal inconvenience in the running continuity of the Equipment by the Customer.
4. Additional Equipment
4.1 On the Customer's explicit written demand, CTN1 can put at the Customer's disposal a location and a power supply for the use of one or several Additional Equipment(s) also considering (a) a sufficient space and power supply availability (b) an agreement between the Customer and CTN1 referring to an increase in the Hosting Services Fees resulting from that, as well as in the Additional Installation Fees and, if need be, in the Additional Services related fees.
4.2 In case of Additional Equipment hosting, CTN1 reserves the right to move the Equipment in order to get all of the Customer's Equipment together at the same Location inside the Building. By explicit derogation from article 3.1, the moving and disconnecting/reconnecting fees will in such a case be paid by the Customer.
4.3 The installation of an Additional Equipment doesn't result in the renewal or extension of this Agreement's duration except for stated will of the parties in this sense.
5. The Customer's Obligations
5.1 Save the situations under the articles 2.5, 2.6, 3 and 7.3, CTN1 will only have access to the Equipment after the written consent of the Customer. Beginning with the Agreement's signing, the Customer is bound to give CTN1 all of the information, authorization, instruction manuals, software, access codes necessary to CTN1 to allow for service providing and compliance with legal and statutory prescriptions. Any modifications to the above mentioned elements must be brought to CTN1's attention as well.
5.2 The Customer has the obligation not to modify the Equipment and its connecting elements substantially without CTN1's prior consent. Substantial modification means any change can occur in the electricity consumption of the Equipment and generally any change of the initial specifications which could have an effect on the execution conditions of the services provided by CTN1. Refusal of such authorization can only be motivated by safety reasons of people and assets. As soon as the safety reasons are lifted, the Customer will be free to replace or disconnect the Equipment linked to CTN1. The Customer does also have to restrain from modifying any of CTN1's materials, installations or infrastructures. Notably, no additional equipment can be connected to CTN1's installations and infrastructures, no wire can be installed in the Ducts and no equipment from inside the Building can be modified without CTN1's prior consent.
5.3 The Parties have the obligation of maintaining the Location where the Equipment is installed in a satisfactory order and cleanliness state and in any circumstances, restrain from being obstructive to the opening of the doors or to hold up access to the Location except for security measures implemented temporarily by CTN1.
6. Obligations and Liabilities of the Parties.
6.1 Every Party will indemnify the other Party/ Parties for any damage, losses, expenses (including reasonable Lawyers' fees), convictions resulting from a third party's complaint as well as from any possession and intellectual property rights' infringement. The Customer will indemnify CTN1 for any damage, losses, expenses (including reasonable Lawyers' fees), convictions resulting from damage caused by the Customer to a Third Party's Equipment, notably to a CTN1 customer.
6.2 CTN1 states and guarantees that it will provide the Services with all of the attention given by an expert complying with the state-of-the-art conditions. However, the Customer admits explicitly that CTN1 cannot guarantee an uninterrupted Service delivery. CTN1 acknowledges and guarantees having a damage and professional legal liability insurance by a notorious credit-worthy company.
6.3 Each of the Parties can only be held responsible for direct material damage resulting from the non-execution of their contract liabilities, with the exception of any other prejudice charge of no matter what nature. In any case, concurrent liabilities of one or other Party for any damage or series of damage resulting from the non-execution of their obligations on the basis of this Agreement is explicitly limited to an amount equal to the fees actually paid by the Customer. In any case, one or the other Party's liability is explicitly excluded with reference to any indirect damage caused to the other Party.
6.4 For lack of any complaint made within one (1) month beginning with the breach discovery date by one of the Parties (or beginning with the date that the non-defaulting Party should have known about the existence of such a breach), the non-defaulting Party will have to exercise its rights against the other Party's infringement.
7 Agreement Terms; Termination of the Agreement
7.1 This Agreement takes effect as from the date of its signing by both Parties and is concluded for the Initial Duration as stated in the Special Conditions. Upon expiry of the Initial Duration, this Agreement will be automatically renewed for consecutive one-month periods of time, except for cancellation by one or the other Party, notified by registered letter with acknowledgement of receipt at least two months before the expiry of the current contracting period of time.
7.2 Each Party has the right to cancel ipso jure this Agreement in the following cases:
7.2.1 In case of infringement by the other Party of one of their essential liabilities on the basis of this Agreement or in case of repeated infringements of an even unessential liability, and (in the case of an infringement that has the possibility of being settled) if the defaulting Party does not cure the default after thirty (30) days from the formal notice given by the non-defaulting Party that requested the remedy. In the case that the Customer is found guilty of a serious infringement of this Agreement, notably to put at risk the CTN1 service providing towards its other customers, CTN1 can according to a reasonable prior notice and to circumstances, suspend the Services, after having informed the Customer in writing about that, and consequently proceed to the disconnection of the Equipment in the CTN1 system waiting for that default to be cured.
7.2.2 In case of an amendment or legal liquidation procedure affecting the other Party except for contrary decision from the entitled legal administrator.
7.3 Beginning with the cancellation or expiration of this Agreement, the Customer should remove the Equipment from the Building at his/her own expenses, as well as the Duct wires and, if need be, upon CTN1's explicit request, bring in good condition the Location where the Equipment has been installed unless the Customer did stated that the damage was not caused by him/her or by one of his/her sub-contractors or agents. For lack of Equipment or wire removal within two (2) working days, CTN1 will have the right to bill the Customer for the Location of the Equipment, at the rate in force, and to move the Equipment at his/her convenience, the Customer having to pay in addition for all of the reasonable expenses required by CTN1 and which have to do with the moving of the Equipment or to wire removal.
7.4 In case of termination of this Agreement by CTN1 due to a cause mentioned under the article 7.2.1 or in case of CTN1's will to put a premature end to the contract, CTN1 can on behalf of its alternative cost give a penalty equal to the fee amounts that would have had to be paid by the Customer if the Services and the Additional Services had been provided till the current contract termination time, within a limit amount equivalent to fifty percent (50%) of the amounts that would have had to be received in that capacity. It is explicitly agreed that the payment of this penalty has no object but to restore CTN1's alternative cost and does not exclude any other review proceedings (to fix the damage suffered by the CTN1 Equipments or by Customers) or any fixing that CTN1 should be susceptible of undertaking or obtaining by this Agreement and by the right to obtain full payment for the amounts and invoices due to the termination date.
8. Absolute necessity
8.1 Parties are not liable when they have been prevented from doing what they had to because of the occurrence of an event beyond they control such as any act of war, armed conflict, riot, insurrection, terrorism, sabotage, bomb attack, blasts, fires, natural disasters, floods, the impossibility of EDF to supply electricity, and more generally any deed of case of absolute necessity as considered by the French case law.
8.2 The Party prevented from doing what they had to in a case of absolute necessity must notify the other Party by registered letter with request for acknowledgement of receipt stating the reason for the Absolute Necessity as well as the estimated time for the suspension of the obligations' execution.
8.3 The Customer will not be billed during the entire Service suspension period caused by a case of Absolute Necessity as stated under article 8.1.
9. General Provisions
9.1 Each and every Party will undertake to keep secret and not to disclose to third Parties all of the information exchanged between the Parties before the conclusion and during the execution of these provisions as well as during a five-year period after the termination of this Agreement for any reason whatsoever. This goes for any situation except for when this disclosure is issued by a competent legal authority. The confidential information do not include the information which (a) is in the public domain the day of its disclosure
(b) has reached the public domain afterwards in other way than the infringement of this article or
(c) has been received from a third Party.
9.2 The Parties can transfer a part or all of the rights and liabilities resulting from this Agreement to any company they have influence upon, by controlling them or being under control with them, the term of "Control" being defined with reference to article L 233.3 of the Code of Commerce. Each and every Party cannot pass on this Agreement without the written prior authorization from the other Party, which cannot be denied except on the basis of lawful reasons, notably in case of a transfer to another company belonging to the same group as the Customer or the Provider, as stated in the article L 233.3 of the Code of Commerce.
9.3 This Agreement represents the settlement as a whole between the Parties with reference to the object of this Agreement and prevails upon any written documents, statements, negotiations or existing agreements referring to the object of this Agreement. The Terms of this Agreement can only be modified by an amendment duly signed by both Parties.
9.4 Save the situation referred to in the article 6.4 above mentioned, any of the parties' non-execution of any of their rights under this Agreement, will not be taken as a disclaimer of exercising such a right.
9.5 Any provision of this Agreement which could turn, in all or in part, un-applicable or unlawful will be considered as unwritten and will not affect the validity of other provisions of this Agreement.
9.6 This Agreement is ruled by the French law. Any dispute referring to this Agreement will be brought to the Commercial Court in Paris to which both parties attributes exclusive powers including in case of emergency procedures or defendant plurality.
9.7 Any notice must be made in writing and sent to the appropriate addresses of the Parties as mentioned in the Special Conditions, except for change in notice address duly announced by the affected Party, and could be handed over, unless otherwise settled in this Agreement, either personally or by mail (the notice being then considered to have been received 3 days after its sending).
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