Fiberloc PC, company duly incorporated under the Greek Laws, with registered address at Kanari 15, Nea Ionia, Attica and Customer may enter into subsequent Application Forms, which may supersede or complement prior Application Forms. As used in this Agreement, the term “Customer Equipment” refers to any and all computer equipment, software, networking hardware or other materials placed by or for Customer in the Colocation Space, other than Fiberloc Equipment. Fiberloc may begin installation, initiation and service as of the date according to the Agreement signed by authorized representative.
1. Fees and Invoicing.
Customer agrees to pay the Activation Charges, Monthly Fees and other fees indicated on the Application Form (collectively, referred to as “Service Fees”).
1.1 Activation fees. Fiberloc will invoice Customer for all non-recurring Installation Charges (one off charges) and first month’s Service Fee (as specified in the Application Form).
1.2 Service Fees. Fiberloc will begin invoicing for Service Fees as of the Installation Date specified in the Application Form or as of the date that the Customer places its Equipment in Fiberloc premises. If, however, Customer is unable to use the Services commencing on the Installation Date solely as a result of delays caused by Fiberloc (this does not include delays caused by third party service providers), then the Installation Date specified in the Application Forms shall be extended one day for each day of delay caused by Fiberloc. On or about the 1st day of each month, Fiberloc will invoice Customer for services to be provided the following month.
1.3 Payment. The payments to be made pursuant to the Agreement shall be in Euros and due on the first business day of the next service month as indicated on the Fiberloc invoice. Any and all fees and charges shall be paid by Customer within thirty (30) days from the date of invoice. Late payments accrue interest at a rate of 2 percent (2%) per month, or the highest rate allowed by applicable law. VAT shall be added to the Payments and to all extra payments for the Supporting services. If in its judgment Fiberloc determines that Customer lacks financial resources, Fiberloc may, upon written notice to Customer, modify the payment terms to secure Customer’s payment obligations before providing Services. Fiberloc, using its sole judgment, reserves the right to determine whether to charge interest to a late paying customer, or to consider the customer as having breached this contract as specified in this Agreement.
1.4 Term. The Term of this Agreement is specified in the Application Form. This Agreement may be renewed as defined in section 1.5 unless either party provides written notice of non-renewal within thirty (30) days of the end of the Term.
1.5 Renewal Term and Renewal Option. This agreement may be renewed for terms of twelve (12) months each. Subject to the conditions stated in this Section, Customer shall have the option to extend this agreement for subsequent terms, each term consisting of 12 months. Each such Renewal Term shall commence the day following expiration of, as applicable, the initial Term or the preceding Renewal Term, always on and subject to all of the terms and conditions set forth in this Agreement. Customer may exercise the option granted hereby by written notice to Fiberloc, but Fiberloc reserves the right to not renew the agreement if the following occurs: a) during the Term preceding delivery of such notice, Customer have defaulted in any of its obligations hereunder b) Customer is operating in the Premises in a manner not consistent with the Building and Land. References to the “Term” of this agreement shall include the Term and the Renewal Term(s). If there is no renewal, the Agreement shall expire on the last day of the expiring initial Term or Renewal Term (as applicable).
2.1 Colocation. Fiberloc grants the Customer the right to operate Customer Equipment at the Colocation Space, as defined on the Application Form. Customer will install Customer Equipment in the Colocation Space after obtaining the appropriate authorization from Fiberloc to access Fiberloc’ Colocation Premises. Fiberloc’ Premises include all Fiberloc owned or leased property including Customer’s Colocation Space. Customer will remove and be solely responsible for all packaging of Customer Equipment.
2.2 Colocation Cabinet. Fiberloc shall provide Customer with adequate rack space, including relays racks (open cabinets) and closed cabinets with ventilated doors with the following dimensions: 600x600 , 600x800 or 600x1000 and 42U of usable space. Cabinets will be powered by a common power feed of AC 220V via one (1) 1U 16Α power strip with 7 Outlet, one (1) 1U UPS protected 16A power strip with 7 Outlet.
2.3 Access. Customer will have access to the Colocation Space on a 24-hour basis, following a 2-hours prior notice from the Customer. More details on the access procedure will be provided in the Fiberloc’ Security and Access Policies, which will be made available electronically, via e-mail or published on an appropriate URL. Customer is responsible for any and all actions of Customer representatives and any escorted persons. No unescorted persons may enter the Colocation space under any circumstances.
2.4 Cross-connects. Fiberloc acknowledges that Customer is in the business of telecommunication services and Fiberloc shall permit and Customer shall have the right to cross-connect between Customer and other tenants, customers, subtenants or occupants in the Colocation Space in order to receive and/or provide telecommunication and other related services. Any additional monthly and/or setup fees related to such connections, shall also be included in the Application Form. Customer is responsible for ordering any other Internet, local and long-distance lines they may require from carriers and for ordering any and all necessary cross-connects from Fiberloc. The carriers will install such circuits in Customer’s name. Customer will be solely responsible for such circuits and for all payments due to the carriers. Customer will notify Fiberloc and the carrier directly when Customer wishes to terminate or modify such circuit. Customer understands Fiberloc does not own or control these services and that Fiberloc is not responsible or liable for performance (or non-performance) of such services
2.5 Removal of Customer Equipment. Customer shall have the right to remove Customer Equipment at any time during the Term, provided Customer shall provide Fiberloc with written notification two (2) days before Customer removes a significant piece of Customer Equipment. (This provision does not apply to replacing a piece of equipment with a similar piece of equipment). Customer will remove such Customer Equipment during normal business hours, Monday through Friday unless special arrangements are made to remove such Customer Equipment at another time and will be solely responsible to leave area in good operating condition at its own expense.
2.6 Relocation of Customer Equipment. Fiberloc shall not arbitrarily or capriciously require Customer to relocate Customer Equipment; however, upon ninety (90) days written notice or, in the event of any emergency, Fiberloc may require Customer to relocate Customer Equipment; provided however, the site of relocation shall afford comparable environmental conditions for the Customer Equipment and comparable accessibility to the Customer Equipment. In the event that Fiberloc requires Customer to relocate Customer Equipment, all costs shall be borne by Fiberloc.
2.7 Supporting Services. At the request of Customer, Fiberloc may assist Customer in performing light duties or correcting minor problems such as circuit problems and/or outages, which may include: a. Rebooting of equipment or pressing of reset or other readily accessible buttons or switches b. Reconfiguration of non-restricted cables with push-on type connectors c. Working cooperatively with Customer and/or third-party provider to locate and correct circuit problems d. Other tasks as specifically authorized by Customer. Customer shall pay Fiberloc a fee of 62.00 Euros per month in which assistance is required during normal business hours (8:30 AM to 6:00 PM local time [GMT +2], Monday through Friday, excluding holidays). A fee of 155.00 Euros per month will apply to nonbusiness hours and holidays. The abovementioned amounts are subject to the applicable VAT.
3. Security. Fiberloc does not guarantee security of Customer Equipment or of the Colocation Space. Fiberloc requires that the Customer and its employees comply with all Colocation Security Procedures as defined in Fiberloc ‘ Security and Access Policy in order to maximize the security of the Fiberloc premises. Only individuals whom the Customer have identified as “Customer Representatives” (and persons escorted by Customer Representatives) listed on the Application Form will be permitted to enter the Colocation Space. Only Customer Representatives will be permitted to request Services on Customer’s behalf or to request any support services with respect to Customer Equipment. Fiberloc will assist in security breach detection and identification, but shall not be liable for any inability, failure or mistake in doing so. For good cause, Fiberloc may suspend the right of any Customer Representative or other person to visit the Fiberloc premises and/or the Colocation Space.
4. Resale. Should Customer resell any portion of the Service to any other party, Customer assumes all liabilities arising out of or related to such third-party sites and communication. Customer agrees to enter into written agreements with any and all parties to which it resells any portion of the Services with terms and conditions at least as restrictive and as protective of Fiberloc’ rights as the terms and conditions of this Agreement
5. Compliance. Customer must at all times conform its use of and comply with all state and federal laws with respect to its operations in the Colocation Space. If Fiberloc is informed by government authorities or other parties of illegal use of Fiberloc’ facilities or Fiberloc otherwise learns of such use or has reason to believe such use may be occurring, then Customer will cooperate in any resulting investigation by Fiberloc or government authorities. Any government determinations will be binding on Customer. If Customer fails to cooperate with any such investigation or determination, or fails to immediately rectify any illegal use, Customer will be in Breach (defined below) of this Agreement and Fiberloc may immediately suspend Customer’s Service.
6.1 Personal Injury. Each Customer Representative and any other persons visiting Fiberloc facilities does so at his or her own risk and Fiberloc shall not be liable for any harm to such persons resulting from any cause, other than Fiberloc’ gross negligence or willful misconduct resulting in personal injury to such persons during such a visit.
6.2 Damage to Customer Equipment. Fiberloc assumes no liability for any damage to, or loss of, any Customer Equipment resulting from any cause, other than Fiberloc’ gross negligence or willful misconduct. In no event will Fiberloc be liable to Customer, any Customer Representative, or any third party for any claims arising out of or related to Customer Equipment of any lost revenue, lost profits, replacement good, loss of technology, rights or services incidental, punitive, indirect or consequential damages, loss of data, or interruption or loss of use of any Customer Equipment, even if advised of the possibility of such damages, whether under theory of contract, tort (including negligence), strict liability or otherwise.
6.3 Damage to Customer Business. In no event shall Fiberloc be liable to Customer, any Customer Representative, or any third party for any claims arising out of or related to Customer’s business, Customer’s customers or clients, Customer Representative’s activities at Fiberloc or otherwise, or for any lost revenue, lost profits, replacement goods, loss of technology, rights or service, incidental, punitive, indirect or consequential damages, loss of data, or interruption or loss of use of Service or of any Customer’s business, even if advised of the possibility of such damages, whether under theory of contract, tort (including negligence), strict liability or otherwise.
7. Third Party Claims and Indemnification.
7.1 Defense. Customer will defend Fiberloc, its director, officer, employees, affiliate and customers (collectively, the “Covered Entities”) from and against any and all claims, actions or demand brought by or against Fiberloc and/or any of the Covered Entities alleging: (a) with respect to the Customer’s business: (i) infringement or misappropriation of any intellectual property rights; or (ii) or any other offensive harassing or illegal conduct or violation of the Acceptable Use Guidelines or Anti-Spam Policy by Customer; (b) any damage or destruction to the Colocation Space, Fiberloc premises, Fiberloc Equipment or to any other Fiberloc customer which damage is caused by or otherwise results from negligent acts or omissions by or willful misconduct Customer, Customer representative or Customer’s designees; (c) any personal injury or property damage to any Customer employee, Customer Representative or other Customer designee arising out of such individual’s activities related to the Services, unless such injury or property damage is caused solely by Fiberloc ‘ gross negligence or misconduct; or (d) any other damage arising from the Customer Equipment or Customer’s business (collectively, the “Covered Claims”). In the event of any claim under this paragraph, Fiberloc may select its own counsel.
7.2 Indemnification. Customer hereby agrees to indemnify Fiberloc and each Covered Entity from and against all damages, costs, and fees awarded in favor of third parties in each Covered Claim, and Customer will indemnify and hold harmless Fiberloc and each Covered Entity from and against all claims, demand, liabilities, losses, damages, expenses and costs (including reasonable attorney fees) (collectively, “Losses”) suffered by Fiberloc and each Covered Entity which Losses result from or arise out of a Covered Claim.
7.3 Notification. Customer will provide Fiberloc with prompt written notice of each Covered Claim of which Customer becomes aware, and, at Fiberloc ‘ sole option, Fiberloc may elect to participate in the defense and settlement of a Covered Claim, provided that such participation shall not relieve Customer of any of its obligation under this Section.
Breach of this Agreement will occur if either party does not fulfill its obligations under this Agreement and such breach is not cured within fifteen (15) days of written notice by the other party. Specifically relating to payment of Recurring Service Fees, the Customer will be in Breach of this Agreement if Customer has not paid its invoice within thirty (30) days of the invoice due. If Customer is in Breach of this Agreement, Fiberloc may (a) discontinue all Services to Customer; (b) disconnect Customer from its Internet, power and telecommunications services; (c) remove Customer Equipment from Colocation Space and place it in storage at Customer’s expense; and (d) order Customer to pay any and all amounts due to the date that the Customer Equipment was removed and order Customer to buy out the remaining term of the Agreement as specified in paragraph 9 (“Early Termination”). If Fiberloc is in Breach of the Agreement, Customer has the right to withhold recurring Service Fees for the time period from which the Breach occurred until the date that such Breach is cured, provided Customer may terminate this Agreement in the event that Fiberloc fails to cure such Breach within thirty (30) days after receipt of written notice of the same from Customer.
9. Early Termination.
If Customer wishes to terminate this Agreement prior to the date specified on the Application Form, it may elect an Early Termination. If the Customer is in Breach of this Agreement, Fiberloc may order the Customer to pay an Early Termination fee. The amount due in an Early Termination shall be equal to 50% of the amount due from the date of termination to the expiration date of the current term of this agreement.
10. Miscellaneous Provisions.
10.1 Force Majeure. In the events considered by the law as causes of force majeure neither Party shall be liable or accountable to the other for any failure, delay or services interruption, provided that the delayed party: (a) gives the other party prompt notice of such cause, and (b) uses its reasonable commercial efforts to correct promptly such failure or delay in performance.
10.2 No Lease. This Agreement is a service agreement and is not intended to and will not constitute a lease of any real or personal property. In particular, Customer acknowledges and agrees that Customer has not been granted any real property interest in the Colocation Space or other Fiberloc premises, and Customer has no rights as a tenant or otherwise under any real property or landlord/tenant laws, regulation or ordinances.
10.3 Marketing. Fiberloc reserves the right to include Customer in a list of Fiberloc Customers during the term that Customer uses Fiberloc’ Colocation services.
10.4 Assignment. Each party shall not assign its rights or delegate its duties under this Agreement either in whole or in part without the prior written consent of the other party that should not be unreasonably withheld. Any attempted assignment or delegation without such consent will be void. Notwithstanding the above, either party may assign this Agreement to without notice or consent to its own legal successor, that acquires substantially all of its assets or is an affiliate provided that such party (“Assignor”) shall remain liable for performance. An Assignor will give notice of a permissible assignment within reasonable time after such event. This Agreement will bind and inure to the benefit of each party’s successors and permitted assigns.
10.5 Notices. Any notice or communication required or permitted to be given hereunder may be delivered personally, deposited with an overnight courier, sent by fax, or mailed by Express, registered or certified mail, return receipt requested, postage prepaid, in each case to the address of the receiving party first indicated above, or at such other address as either party may provide to the other by written notice. Such notice will be deemed to have been given as of the date it is delivered, or five (5) days after mailed or sent, whichever is earlier.
10.6 Relationship of Parties. Fiberloc and Customer are independent contractors and this Agreement will not establish any relationship of partnership, joint venture, employment, franchise or agency between Fiberloc and Customer. Neither Fiberloc nor Customer will have the power to bind the other or incur obligations on the other’s behalf without the other’s prior written consent, except as otherwise expressly provided herein.
10.7 Dispute Resolution. This Agreement shall be governed by and construed in accordance with the national laws of Greece. Any and all contractual or other disputes or claims arising out of or in connection with this Agreement, including but not limited to any questions regarding its existence, performance, breach, validity or termination thereof (the “Dispute”) shall be resolved by discussion between the Parties. In the event of a Dispute, either Party shall serve a written notice upon the other Party (the “Dispute Notice”) proposing that the Parties seek to resolve the Dispute by negotiation. In case the Dispute cannot be resolved, the Greek Courts shall be competent to resolve any such Disputes.
10.8 Entire Agreement and Severability. This Agreement, together with the Application Form and Fiberloc policies referred to in this Agreement represents the complete agreement and understanding of the parties with respect to the subject matter herein, and supersedes any other agreement or understanding, written or oral. This Agreement may be modified only through a written instrument signed by both parties. Both parties represent and warrant that they have full corporate power and authority to execute and deliver this Agreement and to perform their obligations under this Agreement and the person whose signature appears herein is duly authorized to enter into this Agreement on behalf of the respective party. Should any provision of the Agreement be or become invalid, illegal or unenforceable under any applicable law, the remaining provisions of the Agreement shall not be affected and the invalid and illegal or unenforceable provision shall be replaced by a mutually acceptable provision, which, being valid, legal and enforceable, comes closest to the intention of the Fiberloc and the Customer with respect to the invalid. Illegal or unenforceable provision.