LEGAL

TIME WARNER CABLE BUSINESS CLASS

Colocation Services Addendum

 

 

This Colocation Services Addendum (“Colocation Addendum”) governs the Time Warner Cable Business Class Colocation Service (“Colocation Service”) and constitutes an amendment to the Time Warner Cable Business Class Services Agreement Terms and Conditions applicable to Customer (“Terms and Conditions”). The Colocation Service shall be considered a “Service” as such term is used in the Terms and Conditions.

Capitalized words used, but not defined, in this Colocation Addendum have the meanings given to them in the Terms and Conditions. A copy of the current version of the Terms and Conditions is available on the Time Warner Cable Business Class web site at http://business.twc.com/legal.

1. Exhibits and Definitions

The following exhibit is attached to this Colocation Addendum and incorporated herein by this reference:

Exhibit A: Customer Policies and Procedures

As used in this Colocation Addendum, the following terms shall have the following meanings:

“Customer Space” means the server racks, cabinets and cages, and the space contained therein, to be provided by TWC at a Data Center for the installation of the Equipment and the delivery of Colocation Services.

“Customer-Supplied Equipment” means Equipment supplied by Customer.

“Data Center” means the facility used by TWC to provide the Colocation Services.

“Equipment” means any and all computer hardware, operating systems and other system-level software used in the delivery of Colocation Services.

“TWC-Supplied Equipment” means the Equipment provided by TWC for use by Customer in connection with the Colocation Services. TWC-Supplied Equipment shall be considered “TWC Equipment” as such term is used in the Terms and Conditions.

2. Special Colocation Terms and Conditions

A. Grant of License

During the Order Term for the Colocation Service, TWC grants to Customer the right and non-exclusive license (“License”) to use the Customer Space identified in the Service Order solely for the Permitted Uses (as defined below). Customer may not assign or sublicense the Customer Space, or allow any other person or entity to use the Customer Space, without first obtaining the prior written consent of TWC. This License is revocable by TWC subject to changes in TWC’s (or its third party provider’s) underlying lease agreements.

Customer acknowledges and agrees that it does not have, has not been granted and will not own or hold any real property interest in the Customer Space or the Data Center; that Customer is a licensee and not a tenant or lessee of the Customer Space; and that Customer does not have any of the rights, privileges or remedies that a tenant or lessee would have under a real property lease or occupancy agreement.

TWC reserves the right to relocate, change or otherwise substitute replacement space in the Data Center for the Customer Space at any time during the applicable Order Term, provided that the replacement space is substantially similar in size and configuration to the original Customer Space.

B. Customer-Space Permitted Uses

Customer shall use the Customer Space solely for the purpose of (i) installation of the Equipment in the Customer Space, (ii) maintaining such Equipment, (iii) operating such Equipment and (iv) removing such Equipment (collectively, the “Permitted Uses”). Unless otherwise agreed by TWC in writing, Customer shall perform the Permitted Uses at its sole cost and expense.

C. Equipment Installation

Customer will ensure that its officers, employees, technicians, agents, representatives, subcontractors and visitors who are involved in the installation and maintenance of the Equipment, or who are granted access to the Customer Space, comply with the Customer Policies and Procedures, attached hereto as Exhibit A.

Customer agrees to comply with any TWC policies and procedures relating to the installation of Customer-Supplied Equipment. TWC has the right to reasonably limit the type, size and location of Customer-Supplied Equipment located in the Data Center. Additional fees may be required, as agreed to between the parties, for Customer installation of any Equipment that significantly differs from any specified in any installation plan agreed with TWC or that does not fit into the purchased footprint. Customer agrees to maintain all Customer-Supplied Equipment in proper operating condition and to remove all Customer-Supplied Equipment upon expiration or termination of this Agreement. As between the parties, Customer is solely responsible to insure all Customer-Supplied Equipment. TWC retains ownership of all TWC-Supplied Equipment, including, without limitation, all power and signal cabling, ladder racks, cages, cabinets and racks.

3. Base Colocation Services

A. Equipment Cabinets, Racks and Cages

TWC will provide Data Center floor space and equipment cabinets, racks and/or wire-mesh cages as specified in each individual Service Order. If Customer elects to purchase “shared space” (as indicated on a Service Order), Customer acknowledges that Customer may be sharing racks and cages with other TWC customers and agrees that TWC shall have no liability to Customer for any acts or omissions of such other TWC customers.

B. Power

Cage size is determined in part by the power density and the amount of power purchased by Customer. If Customer chooses to add power circuits to its environment, TWC may, in its sole and reasonable discretion, require that Customer’s cage be enlarged to accommodate the additional power circuits or that the rate per square foot and quantity of square feet be adjusted to ensure that the maximum recommended wattage density per square foot of the applicable data center, as determined by TWC in its sole and reasonable discretion, is not exceeded.

TWC shall exclusively provide any AC or DC power circuits for the Customer Space in accordance with the Service Order. It shall be Customer’s responsibility to manage the power draw on each circuit and each fuse, and TWC shall not be liable for any outage or damage to Customer-Supplied Equipment or applications should Customer exceed the circuit or fuse rating. Customer shall use only electric outlets from TWC-provided power strips. Customer-provided power strips used for remote control or other additional functionality must be approved for use in advance by TWC. Dedicated power circuits are standard for full cabinets. Shared power circuits are standard for half-cabinets and quarter-cabinets. Five power-strip outlets are provided for half-cabinet service, and three power-strip outlets are provided for quarter-cabinet service. Customer may purchase additional dedicated power services as required. Customer must comply with the Customer Policies and Procedures, attached hereto as Exhibit A.

Each Data Center utilizes Uninterruptible Power Supply (“UPS”) systems that receive power from both a local commercial power utility and from standby generators to provide continuous conditioned power to the Data Center’s power-distribution units (“PDUs”). In case of a failure in the commercial power source, the UPS battery system continues to provide conditioned electric power. For extended commercial outages, the generators act as the primary source of power to the UPS system. For PDU redundancy, Customer may optionally purchase additional diverse power circuits.

Customer shall elect to be charged for power on either (i) a fixed recurring charge (“MRC”) basis or (ii) a metered basis based on Customer’s actual usage. Notwithstanding anything to the contrary, whether Customer elects to be charged for power on an MRC basis or on a metered basis, Customer’s energy charges are subject to increase in the event there is an increase in power charges incurred by TWC.

C. Environmental Attributes

TWC will provide and maintain the physical attributes of the Data Center, as set forth below:

  • Computer-room air conditioner units ensure that standard and appropriate ambient temperature thresholds are met. In raised-floor Data Centers, the conditioned air is dispersed through perforated floor tiles, while, in slab-cement-floor Data Centers, the conditioned air is dispersed overhead.
  • Fire-detection and -suppression measures include standard and Very Early Smoke-Detection Apparatus warning and alarm systems; zoned, pre-action, dry-pipe sprinkler systems; and portable fire extinguishers mounted throughout the Data Center.
  • Physical security measures vary by Data Center and may include controlled main-entrance access, closed-circuit digital surveillance cameras, biometric scanning, managed card-key locks and on-premises personnel.

 

D. Access TWC will provide physical access by Customer to the Data Center 24 hours a day, 7 days a week; provided, however, that TWC reserves the right to restrict Customer’s physical access to the Data Center if Customer is in breach of any payment obligation set forth in the Master Agreement. To ensure the availability of TWC personnel to accommodate Customer access, Customer must provide TWC with sufficient prior notice of its intent to enter the Customer Space. Customer agrees to, and shall abide by and honor, all then-current rules and regulations of the Data Center regarding access and security. TWC retains the right to access the Customer Space at any time and for any reason, including, without limitation, to perform maintenance and repairs, to inspect Equipment, to measure power draw and to perform contracted Colocation Services.

4. Optional Services

Upon Customer request, TWC technicians are available to perform various “Remote Hands” technical tasks on Customer-Supplied Equipment. Typical activities provided by the Remote Hands services include, without limitation, rebooting or power-cycling Customer-Supplied Equipment, testing or swapping defective cables, directed keystrokes on Customer-supplied KVM, visual reporting on status indicators, reseating or replacement of modular equipment and modem connections for remote access.

Prepaid Remote Hands services are purchased in monthly blocks of time. Requests for Remote Hands services that are not prepaid are available; however, they require a signed Service Order and will not receive prioritized response from the operations team. In addition, if Customer requests Remote Hands services that exceed the services for which Customer has prepaid or which are set forth in a Service Order, TWC may provide such services in its discretion and shall have the right to charge Customer for the same. All Remote Hands time will be billed in fifteen (15) minutes.

Although TWC technicians are skilled in troubleshooting and repairing a variety of equipment, prior knowledge of, or training on, a particular system utilized by Customer cannot be guaranteed. TWC shall not be liable for any losses or damages due to any failure of the Equipment or for any loss of data or damages resulting from Remote Hands service. Remote Hands services do not include the usage of specialized tools or equipment, physical labor or TWC Equipment.

5. Conflicts; Modification

In the event of a conflict between the terms of this Colocation Addendum and the Terms and Conditions, the terms of this Colocation Addendum shall control but only with respect to the Colocation Service. TWC may change this Colocation Addendum by amending the on-line version of this Colocation Addendum. Use by Customer and/or its End Users of the Colocation Service after such amendments shall constitute Customer’s acceptance of such change(s) and agreement to be bound by this Colocation Addendum as so revised.

 

 

EXHIBIT A

CUSTOMER POLICIES AND PROCEDURES

Customer will assure that its officers, employees, technicians, agents, representatives, subcontractors and visitors who are granted access to the Data Center comply with the policies and procedures set forth in this Exhibit A, all local building and facility policies and all laws, orders and regulations of all governmental bodies having jurisdiction over the Data Center or Customer’s activities. Customer will be responsible for any damages caused by its officers, employees, technicians, agents, representatives, subcontractors and visitors.

GENERAL RULES AND REGULATIONS

CUSTOMER-SUPPLIED EQUIPMENT

Equipment Delivery and Storage

TWC will accept delivery of and store Customer-Supplied Equipment in accordance with the guidelines set forth below. Due to limited storage space in each Data Center, TWC, in its sole discretion, has the right to deny or limit the amount of storage space and storage time to customers.

Delivery Scheduling

Due to individual building requirements at each site, all Customer deliveries must be scheduled in advance with TWC in accordance with TWC’s standard procedures at the applicable Data Center. If TWC has not been notified in advance of Equipment arrival, TWC reserves the right to deny acceptance of such delivery.

When scheduling the delivery of Equipment, Customer must describe the Equipment being delivered to TWC. TWC can accept containers up to 50 pounds. For deliveries over 50 pounds, either the items must be shipped on a pallet via a lift-gate truck or Customer must specify “Inside Delivery” service to the shipper, thereby making the shipper responsible for placing the Equipment inside the facility in a location specified by TWC. If a freight elevator is required for the delivery of the Equipment, Customer shall be responsible for any applicable charges imposed by the landlord or building manager.

Third-Party Equipment Delivery

If Customer-Supplied Equipment is delivered by a third party, TWC facility personnel will receive it on behalf of Customer, provided that Customer scheduled the delivery with TWC as described above. Any such delivery must include detailed packing and shipping information which clearly identifies the Customer to whom such Equipment is to be provided and other information as reasonably requested by TWC.

Customer shall prepay all Equipment shipments, freight, packages, etc. TWC will not accept shipments that require any payment whatsoever. Customer is responsible for all shipping and freight claims. Upon receipt of Customer-Supplied Equipment, TWC will provide the following:

  • Verify that the shipment is for the correct colocation facility.
  • Conduct a thorough visual inspection of the external packaging for possible damage.
  • Inventory all boxes and verify that the carton count matches shipping receipt.
  • Place the Equipment in the Customer Space or store the Equipment in a secured area until the Customer Space is ready or available in accordance with TWC’s Equipment-storage policy.
  • Notify Customer of receipt of all shipments and damages or shortages, if any.

In the event of damaged external packaging, TWC will accept the Equipment and indicate “damaged shipment/freight” on the shipping receipt and request the delivery driver to countersign acknowledging delivery of “damaged shipment/freight.”

In the event of a discrepancy, TWC will accept the shipment and indicate “short shipment/freight” on the shipping receipt and request the delivery driver to countersign acknowledging delivery of “short shipment/freight.”

Storage

If Customer-Supplied Equipment can be safely locked in the Customer Space, no storage charges will apply. However, once the initial Customer build has been completed, no spare equipment can be stored in cardboard boxes within the confines of the Customer Space or any other portion of the Data Center’s floor. If there is not enough storage area in the Customer Space, TWC will store Customer-Supplied Equipment in a designated and secure storage area if there is space to do so, at the sole discretion of the site operations manager. Customer will have 15 days in which to retrieve its Equipment from the storage area from the date the Equipment was delivered, after which storage fees will apply.

All Equipment left in TWC storage areas for more than 45 days will be shipped to a Customer-specified location at Customer’s sole cost and expense. TWC is not responsible for loss or damage to Customer-Supplied Equipment stored in TWC facilities or in transit if returned to Customer.

Inventory of Equipment

As a means for providing a secure environment for Customer-Supplied Equipment located in TWC Data Center facilities and to clearly distinguish and segregate the Equipment of its respective customers, TWC requires an inventory of Customer-Supplied Equipment upon execution of a Service Order for Colocation Services. Upon receipt or installation of Customer-Supplied Equipment, TWC also reserves the right to affix “Customer-Owned Equipment” tags to Customer-Supplied Equipment. Customer is required to notify TWC of any significant changes in Equipment, including, without limitation, additions, upgrades, reconfigurations and de-installations. TWC may conduct, upon reasonable advance notice to Customer, periodic inventory of Customer-Supplied Equipment and Equipment configurations during the term of Customer’s Colocation Service.

Installation

Prior to the use of the Customer Space, Customer shall install, or have TWC install, within the Customer Space an appropriate number of (i) patch panels, (ii) DSX panels for Category 5 twisted pair, coaxial, single and multi-mode fiber or (iii) other appropriate demarcation-point equipment. The appropriate amount of demarcation equipment required by TWC may be modified from time to time by TWC in its reasonable discretion. Upon such modification, Customer shall install, or have TWC install, within the Customer Space the appropriate amount of demarcation equipment.

Customer is solely responsible for any connections, wiring and items inside the Customer Space between the demarcation equipment and Customer-Supplied Equipment. All wiring, connections, circuitry and utility ports shall be labeled to include appropriate information in accordance with TWC standard identification procedure. Upon Customer’s request, and if Customer provides the required information, TWC shall provide such labels. However, TWC shall have no liability with respect to such labels, even if TWC provides them.

All cables, interconnections, demarcation equipment and wiring must be cleanly wrapped and tied together and kept within the applicable cabinet or rack within the Customer Space in a manner satisfactory to TWC. Upon request, TWC shall assist with cleanly wrapping wiring, interconnection, Customer-Supplied Equipment or cables through our Remote Hands services. Customer shall not permit any wiring, interconnections, Customer’s demarcation equipment connections or cables to enter any other space outside of Customer’s Customer Space.

Customer shall not install any Equipment that cannot be securely affixed or bolted into a cabinet or rack in a manner reasonably acceptable to TWC. Any and all Equipment that is too large or heavy for a rack or cabinet (including, without limitation, large servers) shall be fastened, securely affixed or bolted directly to the floor by a TWC technician. Customer shall not stack or rest any Equipment on any other Equipment. In addition, nothing that may restrict the airflow through the TWC facility may be mounted on cage walls.

INFRASTRUCTURE

Security

Data Centers typically are secured with a 24x7x365 main entrance that is manned by TWC resources in the form of manned personnel or an electronic security system. A closed-circuit-television security system typically is located at entrances. All visitors at the Data Center must sign in and state their affiliation to a TWC customer. Customer may not prop open any doors within the TWC facility. No one may shield his or her face in any manner from the TWC security system.

Access

Customer shall comply with TWC’s standard access and security procedures at the applicable Data Center, including without limitation by completing TWC’s “Customer Access Authorization Form” and complying with any additional procedures regarding the identification of Customer employees or agents authorized by Customer to enter a Data Center, including the Customer Space, on Customer’s behalf. It is Customer’s responsibility to keep any such authorized employee and agent information updated at all times by contacting TWC with any changes.

Customer-Sponsored Visitors

Facility tours must be requested at least three (3) business days in advance. All visitors entering the Data Center will be required to sign in on the visitor roster and to present a valid driver’s license or other government-issued form of picture identification.

Power

Power provided will be based solely on accepted Equipment configurations as set forth on any applicable executed Service Order for Colocation Services. Additional power required for Equipment reconfigurations, additions or upgrades must be approved by the site operations manager.

All individual power runs are to be installed and maintained by TWC only. All Equipment utilized in a TWC facility must meet the standards of Underwriters Laboratory, Inc. (UL), or a similarly recognized governing board. Any electrical work that requires any contact with any TWC infrastructure must be performed by TWC, TWC-employed contractors or TWC-approved contractors.

Customer may not install any batteries in the Data Center without the prior approval of the site operations manager.

Customer must inform TWC immediately upon discovery of any worn, frayed or cut cables by contacting the TWC Customer Support Center or the site operation manager. No soldering or open flames are allowed in the Data Center.

By code, the load on any AC circuit should not exceed 80% of its maximum rating or exceed 70% on any DC circuit. To insure the safety of the Data Center, there are restrictions on the maximum total power provided to any individual cabinet, rack or cage installed in the facility. For example, no individual cabinet or rack may exceed six kilowatts of power for standard density service, and 12 kilowatts for the high-capacity service. The site operations manager must approve all specific Customer power requirements that exceed this threshold.

The standard power-circuit configuration is one primary 20A/120V AC circuit with one TWC power strip per cabinet or rack. Customer must use only outlets from TWC-provided (or -approved) power strips. TWC reserves the right to demand the removal of the additional power strips, and Customer must remove them immediately on demand.

Redundant AC circuits for fail-over may also be purchased from TWC. Customer must use a redundant circuit for fail-over only and may not use it as a primary power feed. The actual combined power draw on a primary/redundant circuit pair may not exceed 80% of the primary circuit’s maximum draw. If Customer’s actual power requirement exceeds 80% of the primary circuit’s maximum draw (for example, 16A on a 20A/120V circuit), Customer must purchase additional primary power circuits. TWC will periodically review Customer’s usage of primary and redundant circuits to verify that Customer is not overloading the circuit or using redundant circuit as a primary power source. Customer will be charged the current monthly fee for a primary circuit for any redundant circuits used as a source of primary power or contributing to actual draw in excess of the primary circuit’s maximum draw.

TWC may, with 24 hours’ notice, temporarily remove from service any individual DC power feed for maintenance of the power infrastructure.

Use of Data Center and Customer Space

Subject to the above security and access requirements, the Data Center will be accessible 24 hours a day, 7 days a week, except in the event of an emergency. TWC shall use reasonable efforts to provide advance notice to Customer regarding material changes to, or suspension of, the hours of operation at the Data Center.

Any common space (such as kitchenettes, conference rooms, restrooms and work areas), if any, available in the Data Center shall be used solely in accordance with the policies and procedures of the applicable Data Center.

Customer shall maintain the Customer Space in an orderly and clean manner and in good repair and condition, satisfactory to TWC. Customer shall keep the Customer Space free of litter, cartons, packing materials or packaging and related items (collectively, “Waste Materials”). TWC does not provide, and is not responsible for providing, receptacles for Customer’s Waste Materials. Customer must remove all Waste Materials, and under no circumstances shall Customer leave Waste Materials in the Data Center (including the Customer Space). With the prior approval of the site operations manager, Customer may deposit certain Waste Materials in designated trash receptacles that may be available within the Data Center or outside of the building.

Customer shall insure that the Customer Space is in compliance with all Occupational Safety and Health Administration (OSHA) standards. Customer will be responsible for all damage that may be caused by failure to comply with OSHA standards within the Customer Space and under Customer’s control.

None of the Customer or any of its officers, employees, technicians, agents, representatives, subcontractors or visitors shall eat, drink or smoke within the Data Center, except in areas designated by TWC or the building management.

None of the Customer or any of its officers, employees, technicians, agents, representatives, subcontractors or visitors shall bring any weapons—including guns, knives or mace—alcohol or drugs within the Data Center or the building.

Unless specifically approved by the site operations manager and accompanied by the site operations manager, none of the Customer or any of its officers, employees, technicians, agents, representatives, subcontractors or visitors shall photograph or film any areas in the Data Center or the entrances to the Data Center. Customer and its officers, employees, technicians, agents, representatives, subcontractors and visitors shall behave in a courteous and professional manner at all times while in a Data Center.

None of the Customer or any of its officers, employees, technicians, agents, representatives, subcontractors or visitors shall touch, access, tamper or interfere with another customer’s space or Equipment without such customer’s written authorization, even if Customer owns Equipment within another TWC customer’s space.

None of the Customer or any of its officers, employees, technicians, agents, representatives, subcontractors or visitors shall loiter or solicit within the Data Center, shall do or permit anything to be done in, on or about the Data Center that might constitute a private or public nuisance or waste; or shall make any alterations, additions or improvements to the Customer Space without the prior written consent of TWC, which shall be in TWC’s sole discretion.

None of the Customer or any of its officers, employees, technicians, agents, representatives, subcontractors or visitors shall, or shall permit others to, (i) fail to maintain a suitable environment as specified by TWC, (ii) alter, tamper with, adjust or repair any Equipment or property of TWC or any other property (other than its own Equipment inside the Customer Space) located within the colocation facility or the building, (iii) abuse or fraudulently access the building or the colocation facility to obtain, or attempt to obtain, service by any means or device with intent to avoid payment, (iv) gain unauthorized access, alter or destroy any information of TWC or any other customer of TWC by any means or device, (v) use any Equipment in violation of the law or in aid of any unlawful act, (vi) use any Equipment in a manner that (x) interferes with the use of the telecommunications network operated by TWC, its other customers or its authorized users or (y) in the opinion of TWC, is not in accordance with its generally accepted standards of telecommunications access and use or (vii) attempt to do any of the foregoing or permit others to so attempt. Customer shall inform TWC technicians immediately of any unsafe facility conditions of which Customer is aware (e.g., loose ladder racks, slick floors or electrical issues).

Each cage and cabinet in TWC facilities is designed or partitioned to provide colocation for an individual customer. TWC does not allow more than one customer per cage or cabinet partition in any Data Center.

Customer agrees to safely configure, operate and maintain Equipment in the Customer Space, including by appropriate engineering and designing equipment systems in adherence to manufacturer specifications. Failure to comply with these safety measures can result in an order to remedy or shut down unsafe Equipment.

When and where available, and with the prior approval of the site operations manager, cubicle work stations may be utilized on a first-come, first-served basis and must be vacated and cleaned daily. Customer may not leave Equipment in the work area without a Customer technician present.

TWC maintains the confidentiality of Customer’s identity within the Data Center, including, without limitation, the location of Customer-Supplied Equipment. Customer may not post any signage in the TWC facilities, including Customer cages or cabinets. Customer may, at Customer’s sole discretion and with appropriate TWC advance written approval, have its name displayed on TWC standard customer signage within the Data Center.