Colocation terms
0. Status of this document
This is a draft master services agreement. Andrii Co., a Washington for-profit corporation (UBI 604505773), doing business as Andrii Cloud sells no colocation, transit or managed service as of the date above, holds no cabinet, and has contracted for no space. Nothing on this page is an offer capable of acceptance, a quote, or a reservation of capacity, and reading it creates no relationship between us.
It is published for one reason: a buyer evaluating a small provider should be able to read the agreement before spending time on an enquiry, rather than after a sales conversation has made it awkward to walk away. The whole document is written in the conditional for the same reason — would rather than does — because there is no service for it to describe yet.
Counsel has not reviewed it. Clauses that turn on a question we have put to counsel say so, and carry a bracketed placeholder instead of a figure. Every clause may change, and some will.
If we ever offer you service, the agreement you sign — with its service order and schedules — is the one that governs. This page will have no effect on it, and no version of this page is incorporated into it by reference.
1. The agreement, and the order of precedence
The relationship, if there were one, would be made up of five documents:
- This agreement (the "Agreement" or "MSA") — the general terms, which do not change from customer to customer.
- A Service Order — what is actually being bought: the facility, the cabinet position, the space in rack units, the committed power, the handoff, the transfer allowance, the term and the charges.
- Schedules — attached to a Service Order and specific to it. A managed-services statement of work is a Schedule, not a separate contract (clause 16).
- The acceptable use policy ("AUP").
- The service level agreement ("SLA").
Where those documents conflict, the order of precedence would be: (a) the Service Order, as to the service it orders; (b) any Schedule attached to that Service Order; (c) this Agreement; (d) the AUP; (e) the SLA. A Service Order overrides this Agreement only where it says expressly that it is doing so, and never as to clauses 12, 14, 15, 20 or 24.
The AUP and the SLA would be maintained by us and may change. A change to either would not change a Service Order's commercial terms, and a change materially adverse to a customer mid-term would give that customer the right to terminate the affected service without charge, on notice within [notice window — for counsel] of the change.
2. Some words, defined
- "Customer Equipment" — everything the customer installs in the licensed position: servers, storage, switches, optics, cabling, power distribution and media.
- "Licensed Position" — the rack units, cabinet, cage or other position identified in a Service Order.
- "Facility" — the building identified in a Service Order, operated by a third party under an agreement between that operator and us.
- "Committed Power" — the power draw a Service Order commits to the Licensed Position, expressed at the circuit.
- "Service Commencement" — the date we notify the customer that the service is ready for its equipment, whether or not the equipment is installed then.
Words defined in a Service Order or a Schedule carry that meaning for the service it covers.
3. Term, service orders and renewal
This Agreement would begin when both of us sign it or when a customer first signs a Service Order under it, and would continue while any Service Order is in effect.
Each service would have its own term, stated in its Service Order and beginning at Service Commencement. Unless a Service Order says otherwise, a term would renew automatically for successive periods equal to the initial term unless either of us gives written notice of non-renewal at least [renewal notice period — for counsel] before the end of the then-current term. We would give written notice of any change to the recurring charge for a renewal term at least [price-change notice period — for counsel] before that term begins.
A Service Order is not a reservation until we accept it in writing. Space, power and cross-connects are finite and are allocated when accepted, not when requested.
4. Charges, invoicing and taxes
Recurring charges would be invoiced monthly in advance; usage charges, remote-hands charges and pass-through charges in arrears. Invoices would be due net [payment terms — for counsel] days from the invoice date, in United States dollars, by the methods stated on the invoice.
Late charges. An overdue amount would carry a late charge of [rate — ⚠ for counsel] per month, or the maximum rate permitted by law if lower, accruing from the due date. Chapter 19.52 RCW governs the permitted rate, and this clause is drafted for business accounts only; the scope and the rate are both questions we have put to counsel before this document is offered to anyone. We would not exercise a late charge or a suspension right for non-payment without first giving written notice and a cure period of at least [cure period — for counsel] days.
Taxes. All charges would be exclusive of applicable Washington sales and use taxes and of any other tax, levy or duty imposed on the supply, except taxes on our own net income. Where a tax is chargeable we would add it to the invoice and remit it. This Agreement characterises nothing — whether a given charge is taxable, and as what, is a question of Washington law on which we have sought a binding ruling from the Department of Revenue, and no statement anywhere on this site is tax advice to anyone.
Disputed invoices. A customer could withhold a disputed amount by notifying us in writing before the due date, with the reason. The undisputed balance would remain due, and we would not suspend for an amount properly disputed while we work it out in good faith.
5. Space, power and cooling
A Service Order would grant a licence to occupy the Licensed Position, not a lease, a tenancy or any interest in real property. The customer would get no right of exclusive possession of any part of the Facility, and we would retain the right to relocate equipment within the Facility on reasonable notice — or without notice in an emergency — provided the service is restored to equivalent capacity.
Power is committed at the circuit and consumed at 80%. Committed Power would be stated per circuit, and usable continuous draw is 80% of the circuit rating, which is the derating convention the electrical code and every facility operator apply to a continuous load. A 20 A circuit therefore carries 16 A continuously, and a Service Order stating a 20 A circuit is a commitment of 16 A of usable continuous power. We would say so on the Service Order in both figures so the number is never ambiguous.
Draw above the commitment would be billed at the rate in the Service Order, and sustained draw above the circuit rating is a safety matter: we could require a load reduction, and could shed load to protect the circuit, the cabinet or its neighbours.
Cooling, humidity and containment would be provided at the Facility's design envelope, which is the operator's and not ours. Equipment that exhausts against the airflow of the containment it sits in, or that defeats a blanking panel, could be required to be re-racked at the customer's cost.
6. Customer Equipment: title and risk
Title to Customer Equipment stays with the customer at all times, and we claim no ownership of it. We would take physical custody of nothing: this is a licence of space, not a bailment, and we are not a warehouse operator.
Risk of loss and of damage sits with the customer at all times, from delivery to removal, including while equipment is in transit, in a loading dock, in a staging area or in storage, and including while it is handled by our personnel under clause 16 or under a remote-hands request. The customer is responsible for insuring its own equipment (clause 8) and for its own backups and business continuity.
Equipment would have to be rack-mountable, labelled with the customer's name and the Service Order reference, and inventoried with us — serial numbers, MAC addresses and the ports each machine occupies — before installation. We could refuse to admit equipment that is unlabelled, undocumented, visibly unsafe, or of a type clause 14 prohibits.
7. Access — escorted only
Access would be escorted, by appointment, and at no other time. We do not offer unescorted or badged customer access, and a Service Order does not grant any. A visit would be requested in advance — [notice for a scheduled visit — for counsel] for a routine visit, and as fast as we can manage for an emergency — and would be attended throughout by our personnel or by the Facility operator's.
That is a deliberate choice rather than a limitation we regret. A small provider that hands out badges to a shared cabinet has no way to know who touched what, and the customer whose machine was knocked offline by somebody else's elbow has no way to find out either.
The Facility operator's rules bind you, and they can change. Identification, escort ratios, photography, tooling, deliveries, dock hours and safety requirements are set by the operator under its agreement with us, not by us. We would pass on the current rules before a first visit and on request. A change to them is not a change to this Agreement, is not a breach by us, and does not entitle anyone to a credit.
We could refuse or end a visit by anyone who cannot identify themselves, appears impaired, refuses a safety requirement, or is working on equipment that is not the customer's. Everyone attending would have to be named in advance, and a customer is responsible for the conduct of everyone it brings.
8. Insurance, and the certificate that comes before the door opens
A customer would maintain, at its own cost and for as long as its equipment is in the Facility: commercial general liability insurance; property insurance covering its own equipment on an all-risk basis for its full replacement value; workers' compensation as required by Washington law for anyone it sends on site; and, where its personnel or contractors perform work, employer's liability. Limits would be stated in the Service Order.
A certificate of insurance evidencing that cover must be delivered to us before first access, naming Andrii Co. as an additional insured on the liability policies, and with a waiver of subrogation in our favour on the property policy. No certificate, no entry — including for an installation appointment, which is the visit customers most often assume is exempt.
A certificate would be renewed on each policy renewal, and we would be notified of cancellation or material change as the policy requires. Cover is the customer's own obligation and is not reduced by anything in this Agreement; our insurance does not cover Customer Equipment and is not available to the customer.
9. Network, addressing and BGP
The handoff. We would deliver the port and the addressing stated in the Service Order at the Licensed Position. Our responsibility runs to that port. What the customer connects to it, and how it is configured, is the customer's.
Transfer is measured, and it is not unmetered. Where a Service Order states a transfer allowance, usage above it would be billed at the rate stated there, measured on the 95th percentile of five-minute samples over the calendar month, on the higher of inbound and outbound, which is the ordinary convention for this kind of service. No service under this Agreement is described as "unmetered", and a Service Order that omits a rate does not thereby make the traffic unbilled.
Addresses we assign are licensed, not sold. Any IPv4 or IPv6 address we assign would be assigned for use with the service only, as a licence and not a sale or a transfer of any property right. Addresses would not be portable, would not be transferable by the customer, and would revert to us on termination of the service for any reason. We would allow a reasonable renumbering window before reissuing an address, and we keep our own records of assignments as our registry obligations require.
Bring your own addresses (BYOIP). A customer announcing its own address space through us would provide, before the first announcement: a valid letter of authorisation signed by the resource holder; RPKI route origin authorisations covering every prefix and origin ASN to be announced; and matching IRR objects in a database we accept. We would drop RPKI-invalid announcements, would filter to the prefixes documented, and would not carry an announcement we cannot verify.
A hijack is a suspension, immediately and without a cure period. Announcing address space the customer does not hold and cannot document is not a configuration error to be discussed on a business day; it is an attack on somebody else's network, carried by ours (see the zero-tolerance categories in the AUP).
Source-address validation. Every customer would implement BCP 38 ingress filtering on its own networks and would not send us packets with source addresses outside the ranges assigned to or documented for it. Spoofed traffic is a suspension matter.
Blackholing is mitigation, not a failure. We could null-route, rate-limit or otherwise filter traffic to or from an address under attack, including by announcing a remote-triggered blackhole upstream, to protect the customer, the network and every other customer on it. Time during which traffic is blackholed to mitigate an attack would not be unavailability under the SLA and would earn no credit.
Upstream charges get passed through. Where an upstream, exchange or facility operator charges us a fee, a penalty or a remediation cost attributable to a customer's traffic or announcements — an abuse fee, a port-security charge, a cross-connect remediation — we would pass it on at cost with the documentation we received.
10. Cross-connects and exchanges
Cross-connects would be ordered through the Facility operator, priced by it, and installed on its schedule. We would order on a customer's behalf and pass through what we are charged; the operator's terms, lead times and change fees would apply, and we would not commit to a date we do not control.
Connectivity to any internet exchange is not guaranteed by this Agreement, including the Seattle Internet Exchange. Whether a cross-connect to an exchange switch is available to us at all depends on the Facility, on our own arrangements and on the exchange's rules, and none of those is settled. Nothing in a Service Order, a Schedule or on this website is a commitment that exchange connectivity exists, will exist, or will be offered at any particular time — and a customer buying on the strength of one should get it in writing in its Service Order or not rely on it.
11. Acceptable use, and suspension
The acceptable use policy would be part of this Agreement, and a customer would be responsible for compliance by everyone it lets use the service, including its own customers — the flow-down in the AUP's first clause is a contractual obligation here and not a courtesy.
We could suspend a service, in whole or in part, where the AUP allows it, where a suspension is required by law or legal process, where an emergency threatens the network or the Facility, or for non-payment after notice and the cure period in clause 4. Suspension does not relieve a customer of charges and does not earn an SLA credit.
We would tell the customer what we did and why, before the fact where that is possible and immediately after where it is not, unless a law forbids it (see abuse and legal process).
12. Equipment left behind — ⚠ two theories, one to be chosen
This clause is deliberately unfinished, and it is the clearest example of why this page says "draft". It is also the clause a customer should read hardest, because it is the one that decides what happens to hardware in a dispute.
The settled part: on termination or expiry, a customer would remove its equipment within [removal window — for counsel] days, during escorted access, having paid what is due. Equipment left after that window would be deemed abandoned, and we would be entitled to remove it from the Licensed Position and to store it at the customer's cost.
The unsettled part is what we may then do with it, and there are two routes under Washington law that counsel will choose between. We will publish one, not both:
- a security interest in the equipment, granted by the customer and perfected under Article 9 of the Uniform Commercial Code, chapter 62A.9A RCW, enforced by that Article's disposition and notice rules; or
- a landlord's lien under chapter 60.72 RCW — which sits awkwardly with clause 5, since this Agreement grants a licence and not a tenancy, and whose reach over a colocation licence, together with any cap and the required notice and sale procedure, is unverified and is a question for counsel rather than a number to be copied from another provider's contract.
Until that choice is made, no cap, no notice period and no sale procedure stated anywhere on this site should be relied on, and this draft states none. Whatever is chosen, we would give written notice to the customer's last known contact before disposing of anything, and would account for any surplus.
13. Data on equipment we remove or receive back
Storage media in equipment we remove under clause 12, or that a customer hands back to us for disposal, would be securely erased or physically destroyed before the equipment is resold, recycled or scrapped, and we would not read, copy or retain the data on it.
That is a floor, not a backup service. Encrypt your own storage. We do not know what is on customer equipment, we do not want to know, and a customer's data-protection obligations to its own users are its own — our destruction step protects the next owner of a disk, not the customer's compliance position.
We would provide written confirmation of destruction on request. We would not provide a certificate naming a particular standard unless a Schedule says we will, because a standard named in a contract is one we would have to audit ourselves against.
14. Things that may not come into the Facility
No customer would bring into the Facility, or install in a Licensed Position: flooded or vented lead-acid batteries, or any battery chemistry the Facility operator prohibits; flammable liquids, solvents, aerosols or compressed gases; heaters, open flames, or anything with an exposed heating element; firearms, ammunition, explosives or weapons of any kind; radioactive material; chemicals requiring a safety data sheet not supplied to us in advance; food or drink beyond what a person carries for themselves; or anything the Facility operator's rules exclude.
Equipment that arrives with an undeclared hazardous component could be refused at the dock. A customer would be responsible for any cost — clean-up, disposal, regulatory, or the Facility operator's own charges — arising from a breach of this clause.
15. Export control and sanctions
Each of us would comply with the export control and economic sanctions laws that apply to it, including the U.S. Export Administration Regulations (15 C.F.R. Parts 730–774) and the sanctions programmes administered by the U.S. Treasury's Office of Foreign Assets Control.
A customer would warrant that it is not a person with whom we are prohibited from dealing, that it is not owned or controlled by such a person, and that it would not use the service to provide a benefit to one — including by reselling capacity to one. We could suspend or terminate immediately, without a cure period and without liability, where continuing would put us in breach of those laws, and we would tell the customer as much as the law allows us to.
This clause is drafted for this service and stands on its own. It is not borrowed from, and does not incorporate, anything in the notary practice's terms.
16. Managed services, as a Schedule
Where a customer buys the managed option, it would arrive as a managed-services statement of work attached to the Service Order as a Schedule — not as a separate contract, not as a change to this Agreement, and not as a verbal understanding about how much help is reasonable. The Schedule is where the specifics live, and it would state at least:
- Scope — the named systems, the named services on them, and what is explicitly out of scope.
- The hands allowance — how much work is included per month, how it is counted, whether it carries over (it would not), and the rate for work beyond it.
- Patch and maintenance windows — when we would touch a running system, how much notice, and what happens when a security patch will not wait for the window.
- Backups — what is backed up, where it goes, how long it is kept, how a restore is requested, and what is not backed up. A managed service without this paragraph is a misunderstanding waiting to happen.
- Access and credentials — which of our people hold credentials on which systems, how those are stored, how access is logged, and how it is revoked at the end. Outside a Schedule, we hold no credentials on customer equipment and log in to nothing.
- Response targets — the managed service's own targets, which are separate from and do not amend the SLA.
The limits of what we would be responsible for. A managed service is an obligation of care in performing named tasks, and never a warranty of an outcome. We would not be responsible for the customer's own software, its code, its configuration choices, its data or its licences; for a vulnerability in third-party software before a fix exists; or for a failure caused by a change the customer made without telling us. A customer that keeps root on a system we manage keeps the consequences of using it.
17. Confidentiality
Each of us would protect the other's confidential information with at least the care it uses for its own, would use it only for the purpose it was given for, and would disclose it only to people who need it and are bound to keep it confidential.
The ordinary exceptions would apply — information that is public without a breach, was already known, is independently developed, or is lawfully received from a third party. Disclosure compelled by law or legal process would be permitted, with notice to the other party where the law allows it (the notice default in abuse and legal process is the same one).
Neither of us would use the other's name, marks or logo publicly without written consent, and we would not name a customer as a customer — not on this site, not in a deck, not in a press release. If we ever want to, we will ask.
18. Personal data
Our handling of the personal data a customer gives us to run the account — names, contact details, billing details, and the information in an enquiry — is described in the privacy notice, and we would act as a controller of it.
We would not be a processor of whatever is on colocated equipment. We do not access it, we do not host it in any sense that matters for data-protection purposes, and a customer running a service on its own hardware in our rack is the controller and, where it applies, the processor of what that service holds. Where a customer needs a data processing agreement for a managed service, that would be a Schedule under clause 16 and would be negotiated on its own facts.
19. Warranties, and what we do not warrant
We would warrant that we would perform with reasonable skill and care, in a professional manner, using appropriately qualified personnel — and that is the whole of the express warranty.
Everything else would be provided "as is" and "as available", to the fullest extent permitted by law, with no implied warranty of merchantability, fitness for a particular purpose, title or non-infringement. We would not warrant uninterrupted or error-free service, the security of anything a customer runs, or that any particular level of performance, capacity or connectivity is achievable.
SLA credits would be the sole and exclusive remedy for a failure to meet a service level. The service level agreement sets what would be measured, the credit bands and the exclusions; it is a draft too, it confers no rights today, and its credits are capped at one month's recurring charge for the affected service.
20. Limitation of liability
Neither of us would be liable for indirect, incidental, special, consequential or punitive damages, or for lost profits, lost revenue, lost business, lost goodwill, lost or corrupted data, or the cost of substitute services, however caused and on any theory of liability, even if advised that they were possible.
Each party's total aggregate liability arising out of or relating to a service would be capped at [cap — for counsel; the intent is the charges paid for the affected service in a defined period before the claim].
Those limits would not apply to: a customer's obligation to pay charges properly due; either party's indemnity obligations; a breach of clause 17 (confidentiality); a customer's breach of clause 14 or 15; or liability that cannot be limited or excluded under applicable law, including for fraud and for death or personal injury caused by negligence. Nothing in this Agreement limits any non-waivable right, including any right under Washington's Consumer Protection Act, chapter 19.86 RCW.
The limits above reflect an allocation of risk that the charges are set against, and each of us would be free to insure against what it has accepted.
21. Indemnities
A customer would indemnify us against claims, losses and reasonable costs arising from: what it transmits, stores or hosts on its equipment; its use of the service in breach of the AUP or of law; its address announcements; injury to people or damage to property in the Facility caused by it, its equipment or anyone it brings; and a third-party claim that its equipment or content infringes that third party's rights.
We would indemnify a customer against a third-party claim that the service as we provide it — excluding anything the customer supplies, configures or hosts — infringes that third party's United States intellectual property rights, and against claims arising from our own gross negligence or wilful misconduct in the Facility.
An indemnity would be conditioned on prompt notice, control of the defence by the indemnifying party, and reasonable cooperation, and neither of us would settle a claim in a way that admits liability for the other without consent.
22. Termination, and what happens after
Either of us could terminate a service for material breach on written notice, where the breach is not cured within [cure period — for counsel] days of the notice, and immediately where the AUP or clause 9, 14 or 15 allows it. Either of us could terminate on the other's insolvency, assignment for the benefit of creditors, or appointment of a receiver.
A customer terminating for convenience before the end of a term would pay the early termination charge stated in the Service Order, which would reflect our committed costs and would not be a penalty. A customer terminating for our uncured material breach would pay nothing further and would be refunded prepaid, unused charges.
On termination of a service: access would end except by appointment to remove equipment; addresses assigned under clause 9 would revert and announcements would be withdrawn; equipment would be removed within the clause 12 window; charges accrued to the termination date would remain due; and clauses 4, 6, 12, 13, 17, 19, 20, 21 and 24 would survive.
23. Force majeure
Neither of us would be liable for a failure or delay caused by something beyond its reasonable control — including a utility or upstream failure, an act of a Facility operator, a natural event, a fire, a labour action, a public-health order, a change of law, war, terrorism, or a denial-of-service attack. The affected party would notify the other, would mitigate, and would resume as soon as it reasonably could.
This clause would not excuse an obligation to pay for a service actually delivered, and the availability exclusions in the SLA stand on their own terms.
24. Disputes, governing law, and the jury waiver
Talk first. Before filing anything, each of us would give the other written notice describing the dispute, and a senior person from each side would confer — by telephone or in person — within 30 days to try to resolve it. That step would not apply to a request for injunctive relief, or to a suspension under the AUP.
Governing law. Washington law, without regard to its conflict-of-laws rules. The United Nations Convention on Contracts for the International Sale of Goods would not apply.
Venue. The state and federal courts located in King County, Washington, exclusively, and each of us would consent to personal jurisdiction there.
Jury waiver. Each of us would waive, to the fullest extent permitted by law, any right to a trial by jury in any proceeding arising out of or relating to this Agreement. This is a mutual waiver, negotiated between businesses, and it is set out here in the draft rather than buried in a signature page.
Fees. In a proceeding to enforce this Agreement, the substantially prevailing party would recover its reasonable attorneys' fees and costs — drafted mutual deliberately, because RCW 4.84.330 makes a one-sided fee clause in a contract reciprocal by operation of law in Washington. A clause that pretends otherwise misleads the party it was meant to favour.
No consumer arbitration clause appears in this document, and the arbitration provisions in the notary practice's consumer terms are not incorporated here. If arbitration were ever agreed for a particular customer, it would be under the AAA's Commercial Arbitration Rules and would say so in the Service Order.
25. Notices
Notices to us would go to legal@andrii.cloud and, for anything requiring a physical address, to Andrii Co. at 11826 NE 167th St, Bothell WA 98011-5456, United States. Service of legal process has its own address and its own rules — see abuse and legal process; the operational mailboxes on this site are not addresses for service.
Notices to a customer would go to the contacts in its Service Order. A customer would keep its technical, billing, security and abuse contacts current, and the abuse contact would be one that answers outside business hours, because the 4-hour deadline in the AUP's enforcement ladder does not wait for a Monday.
A notice by email would be effective when sent, absent a bounce; a notice by courier when delivered.
26. General
Assignment. Neither of us could assign this Agreement without the other's written consent, except to a successor of substantially all of its business or assets, on notice.
Subcontracting. We could use subcontractors — the Facility operator, carriers, remote hands — and would remain responsible for their performance of our obligations.
Independent parties. Nothing would create a partnership, joint venture, agency or employment relationship, and neither of us could bind the other.
No third-party beneficiaries, and no rights in a customer's own customers under this Agreement.
Severability and waiver. An unenforceable provision would be severed to the minimum extent necessary and the rest would stand. A failure to enforce is not a waiver.
Entire agreement. This Agreement with its Service Orders and Schedules would be the whole of what is agreed, and would supersede every prior discussion — including every page of this website, which is marketing and is not incorporated by reference into anything.
Amendment. In writing, signed by both, except for changes to the AUP and the SLA under clause 1.
Counterparts and electronic signature. Signature in counterparts and by electronic means would be effective.
Questions about this draft: legal@andrii.cloud. Enquiries about service: hello@andrii.cloud.
Andrii Co., a Washington for-profit corporation (UBI 604505773), doing business as Andrii Cloud
11826 NE 167th St, Bothell WA 98011-5456
United States