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HomeMy WebLinkAbout1999-195 AFN Agrmt - Project A Ashland Fiber Network SERVICES AGREEMENT Agreement between the City of Ashland by and through its Department of Electric Utilities, Ashland Fiber Network Division ("AFN") and Customer named below for drlDATA services ("Data Services") on AFN's talecommunications system through its fiber optic network (the 'network" or "system"). Customer Name: PROJECT A, INC. Premises Address: 340 A STREET #1 1. SERVICES. Customer shall purchase and AFN shall provide to Customer: 1.1. DATA SERVICES. Data Services permit access by Customer to AFN's telecommunicetions system at the point of delivery located in the Customer's premises described above. The point of delivery is that location where the network and Customer's system are interconnected. 1.2. INSTALLATION SERVICES. Installation services consist of coordinating with Customer the necessary engineering, site survey, system cenfOuration and other services necessary to provide Customer Data Services. These services shall be provided up to the date that the service testing is completed based on AFN's customary testing procedures and the service is available to the Customer ("the service acceptance date'). In addition, AFN will install such wiring, switches, reuters, cabinets or other equipment ("collectively referred to as 'AFN fad/s") necessary to connect Customers facfiities to the network. 2. TERM. This agreement ~n'il be effective upon the date e~cuted by AFN and shall continue for one year, unless sooner terminated as provided in this agreement. In the event written notice is not given by either party to terminate this agreement at least 30 days prior to the termination date, this agreement shall be extended for successive one year periods on the same terms and conditions except for the rate specified in section 3. The rate for each extension period shall be the rate then in effect, as published by AFN, at least 45 days prior to the termination date. 3. CHARGES. 3.1. DATA SERVICES RATE. From the service Installation Charge: [] 10Mbps $ 750.00 [] 100Mbps $1,250.00 ~ Custom $ ~ acceptance date, Customer shall pay the rate specified above for each month of service. If the service does not begin on the first day of a billing cycle, then payments for the first month shall be prorated on a daily basis. All sums shall be paid within 20 days after the date of the monthly baling for senAces (the "due date"). 3,2. INSTALLATION SERVICES CHARGE. Customer shall pay the installation charge specified above for the installation services provided by AFN which charges shell be due and payable upon e~ecution of this agreement (the 'due date"). 3.3, LATE PAYMENTS, DEPOSIT, Payments received after the due date maybe subject to a charge of 1%% per month on the unpaid balance atthe discretion ofAFN, AFN may require Customer to pay a deposit in advance of the provision of any service. Any such deposit shall be held by AFN in a non-interest beadng account and used to satisfy On whole or in part) any obligation of Customer under this agreement, 4. SERVICE LEVELS. AFN will exercise reasonable efforts to provide service on a 24-hour-a-day, 7-day-per-week basis. Customer understands and acknowledges that AFN does not warrant that its service will be provided without interruption. Customer also understands that the rates and speed forthis senAce is based on the uffiization of burstable data transmission methodology where the full bandwidth contracted for is to be utilized in bursts only and not continuously. AFN may monitor Customers bandwidth utilization in order to ensure that Customer's transmissions are within the burstable utilization rate guidelines. These guidelines are subject to change at any time by AFN acting in its sole discretion, and all such changes shall be binding I - ofrlDATA Services Agreement (p:~tde~forms%AFN Data Services Contr,wpd)(5/99) 12~i 99 FRI 16:26 FAX 541 488 5320 ASHLAND SVC CTR ~ 003 upon Customer upon written notice to Customer by AFN. In the event of a service outage, AFN will have repair personnel on site within 4 hours after receiving notification of the outage from the Customer to the assigned service number provided to customer from time to time. With respect to a failure of continuous interTuption which is not e>cused, as provided in this section or othenNise, which exceeds 24 consecutive hours in duration, and of which AFN receives written notice within 48 hours of such failure or intern ptjon, AFN shall credit Customers account with respect to the affeded service by an amount equal to one-thhidieth of the recurring monthly charge for the seRice for each 24-hour period during which the failure or interNllon continues. This credit shall be the sole and et_.Jusive remedy of Customer with respect to any interruption or fa,qure of the senAce. No such credit shall be due, however, if the interruption is caused by masons beyond the reasonable control ofAFN orfor reasons related to scheduled network maintenance. 5. AFN FAClLmES. AnyAFN fadlilies Installed on Customers premises shall be and remain the property of AFN and may be repaired or replaced at any time and removed at the termination of service, and may be used to supply other customers of AFN whether or not on the sam promises. No rent or other charge shall be made by Customer on AFN for placing or maintaining its fadls upon Customers promises. AFN shall be entitled, at any time, to affix to AFN facltjes a label indicating the interest of AFN. 5.1. REMOVAL Customerwil use reasonable efforts to ensure that AFN faclities are not removed or caused to be removed by any person, other than AFN or wtthout AFN's pdor wdtten consent. 5.2. PROPER ENVIRONMENT. Customer Shall use reasonable efforts to keep the location of AFN's facilities in the proper environment as specire~ by AFN. 5.3. DAMAGE. Customer agrees to e>ercise due care and caution to protect AFN's faditjes from the weather, vandalism and other potential pmblerns. Customer shag be liable for any loss or damage to AFN's faclilies at any location arising from Customers negligence, intentional ad, unauthorized maintenance or other cause wilhin the reasonable control of Customer, Is employees or agents. In the event of any loss or damage to AFN's fadlies for which Customer is liable, Customer shall reimburse AFN for the lesser of the reasonable cost of repak or the actual cost of replacement. 6. Rr.,HTS AND OBUGATIONS OF CUSTOMER. 6.1. INSTALLATION. Customer Shall at its e~Dense undertake all necessary preparations required to comply AFN's installation and maintenance instructions. Such preparations include obtaining all ner.,essary consents for the installation and use ofAFN faciities h the buidbg, including consents for necessary alterations to buildings; ensurhg that any floor loading Iimis wil not be e>eeeded; providing suitable accommodations, foundations and an environmentto meetthe environmental specifications for AFN Indudhg all necessary tmnldng, conduits and cable trays; providing suitable eledric power and any other urines needed by AFN to install, test and or maintain AFN fadilies; pmvidhg a suitable and safe working environment for AFN's personnel, including an environment sate from environmental hazards; and takincg up or removing, in time to allowAFN to carry out installation as scheduled, any fied or rmecl floor coverings, ceiling tiles, suspended ceilings and partition covers. 6.2. Premises Access. Customer shall pro~de AFN or other persons authorized by AFN with access (on both a routine and emergency basis) for the implementation of all services contemplated to be provided byAFN. Afterthe service acceptance date, Customer will provide AFN reasonable access to the Customer premises where any AFN fadities are installed. AFN shall not be responsble for any faults on the network or any faiure to perform the provisions of this agreement to the e:4ent that AFN, in good faith, requires access, and any such faults or failures or the continuation thereof are a result of the failure of Customer to provide .access to the place at each location where AFN facilities are installed supporting the faiing service or connection. (a) During implementation, AFN will normally carry out work required to install and/or repair AFN's faclitias during Is normal working hours but may, on reasonable notice, require access at other times. At Customer's request, AFN will carry out work to install AFN's facilities outside AFN's regular working hours, in which event Customer agreesto pay overtime and anyotherappropriate charges agreed between the parties. (b) Any out-of-pocket costs reasonably incurred by AFN as a consequence of the denbl of access by Customer (or building owner) to any location shall be paid by Customer. AFN shall advise Customer ofanysuch costs on a 6.3. ACCEPTABLE USE POUClES. Customer shall comply with AFN's acceptable use policies. The acceptable use policies are subject to change at any time byAFN acting in Is sole discretion, and all such changes shall be binding upon Customer upon wri~n notice to Customer by AFN. Copies of such policies will be fumished by AFN upon request. 6.4. SYSTEM INTEGRITY. (a) Customershall be responsible forthe use and cempalbility of equipment or software not provided by AFN. in the event that Customer uses equipment or software not provided by AFN which impairs Customers Data ~s or the network, Customer shall nonetheless be liable for payment for all service, including without limitation any software, provided by AFN. Upon notice from AFN that any equipment or software not provided by AFN is causing or is likely to cause any hazard, interference, or service obstruction, Customershall immediatelyeliminate the likelihood or hazan:l, interference, or sen/ice obstruction and if Customer fails to do 2 - of~DATA Services Agreement (p:%tele~forms~,FN Data Services Contr.wpd)(5/99) 12 i' ~t9 FRI 16:27 FAX 541 488 5320 ASHLAND SVC CTR ~ 004 so, AFN maytake such action as it deems required to eliminate such heard, interference or service obstmcUon. (b) Customerwll onlyconnectto the network using industry standard equipment which complies and is compat~131e with the service specicaljons set forth in applicable technical publications. Notwithstanding the undertaking of Customer in the priorsentence, if, in AFN's masonable ophion, the technical integnly of the network or the services being provided over the network to Customer or any other third pady is being jeopardized or is I~ely to be jeopardized as a result of the connection of any Customer premises equipment to the network by Customer or by any other aclkiy for which Customer is responsible, AFN may suspend the provision of the services to any connection so affected. Followhg remedial action by Customer satisfadory to AFN, AFN wil rehstate the service provided through that connection as soon as possible. (c) AFN reserves the right to allow or refuse to allow any make, model or software revision of customer- provided equipment to be used as a gateway to any network access. Customer will cooperate with AFN in seffing the inlal configuration for its equipments interface with the network. (d) AFN may from time to tkne issue technical instrucUons on the use of the network to ensure the proper functioning of the services or the protecUon of the network from damage or deterioration. Technical instructions will be obsen,ed by Customer. 7. TERMINATION. Either party mayterminate this agreement for cause, provided written notice is given the other party specifying the cause for termination and requesting corredion within 10 days for failure to pay a sum due, orwithin 30 days for any other cause, and such cause is not corrected within the applicable period. Cause is any material breach of the terms of this agreement, including the falure to pay any amount when due, the filing of a petition in bankruptoyby or against Customer or Customers inattityto meet obligations when due; orfailure of Customer to cure any violation (other than failure to pay) of the provisions of this agreement wilhin 30days notice by AFN. 7.1. CESSATION OF SERVICE. AFN may deny Customer access to the network and cease to provide all or part of any sen,ices descn13ed in this agreement wthout notice if Customer (a) violates any provision of applicable acceptable use policies; (b) engages in any conduct or activity that AFN, in its sole discretion, reasonably believes causes a rtsk that AFN may be subjected to civil or c~rnhal liligation, charges, or damages; or (c) would cause AFN to be denied access otto lose services byAFN's intemet prorider. 7.2. CESSATK~N OFACCEB$. ifAFN ceases to provide or denies Customer access to the network pursuant to this section, neither Customer nor any of is customers shall have any right (a) to accessthreughAFN anymaterials stored on the intemet, (b) to obtain any credits othenNise due to Customer, and such credits shall be forfeited, or (c) to access thid party services, merchandise or Information on the intemet through AFN. AFN shall have no responsibility to riolily anythird-party proriders of services, merchandise or Information of any discontinuance ofanyservices pursuant to this section, nor any responsibilityfor any consequences resulting from lack of such noffii~ticn. 7.3. TERMINATION FEE. If AFN terminates this agreement for cause, or ff Customer terminates this agreement wbout cause, Customer shall pay AFN a terminalion fee equal to the lesser of (a) the remaining chaq]es applicable through the end of the scheduled term, or (b) six months of charges. 8. NO WARRANTIES. TO THE EXTENT PERMITI'ED BY APPLICABLE LAW, AFN IS PROVIDING THE SERVICES AND THE SYSTEM (INCLUDING BUT NOT LIMITED TO THE AFN FACLITES AND ANYACCESS TO THE NETWORK) AS IS AND WITH ALL FAUL T8, AND HEREBY DISCLAIMS ALL OTHER WARRANTIES, IF ANY, EITHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE WITH RESPECT TO ANYOF THE SYSTEM AND SERVICES PROVIDED OR TO BE PROVIDED UNDER THISAGREEMENT, INCLUDING BUT NOT UMITED TO ANY OF ANY) AND ALL IMPLIED WARRANTIES OF IVERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OF LACKOF VIRUSES, LACKOF NEGLIGENCE OR LACK OF WORKMANLIKE EFFORT. AFN MAKES NO WARRANTY: (a) OF TITLE, QUIET ENJOYIVENT OR LACK OF INFRINGEMENT WiTH RESPECT TO THE SYSTEM OR SERVICES; (b) THAT THE SYSTEM OR SERVICES ARE "YEAR 2000" COMPLIANT; AND (c) THAT THE OPERATION OF THE SYSTEM OR SERVICE WILL BE UNINTERRUPTED OR ERROR FREE 9. EXCLUSION OF CERTAIN DAMAGES; LIMITATION OF LIABILITYAND REMEDY; EXCLUSNE REMEDY. TO THE MAXIMUM EXTENT PERMITTED BYAPPLICABLE LAW, IN NO EVENT WILL AFN BE LIABLE UNDERANYCONTRACT, NEC-.-.-.-.-.-.-.-.-a_IGENCE, STRICT LIABILITY OR OTHER THEORY FOR ANY SPECIAL, INDIRECT, INCIDENTAL OR CONSEQUENTIAL DAMAGES (INCLUDING BUT NOT LIMErED TO DAMAGES FOR LOSS OF PROFITS OR CONFIDENTIAL OR OTHER INFORMATION, FOR BUSIf_SS INTERRUPTION, FOR PERSONAL INJURY, FOR LOSS OF PRIVACY, FOR FAILURE TO MEET ANY DUTY INCLUDING OF GOOD FAITH OR OF REASONABLE CARE, FOR NEGLIGENCE, AND FOR ANY OTHER PECUNIARY OR OTHER LOSS WHATSOEVER) ARISING OUT OF OR IN ANYWAY RELATED TO ANY BREACH BY AFN OF THIS AGREEIVE. NT, TO THE PROVISION OR USE OF OR INABILITY TO USE THE SYSTEM OR SERVICES OR OTHERWISE WITH RESPECT TO ANY SUBJECT MA'i'rER OF THIS AGREEMENT, EVEN IF AFN HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. AFN'S TOTAL LIABILITY TO CUSTOMER UNDER THIS AGREEMENT AND THE TRANSACTIONS CONTEMPLATED HEREBY, INCLUDING WITHOUT LIMITATION ANY LIABILITY OF AFN FOR ANY DAMAGES OF ANY NATURE WHATSOEVER, INCLUDING WffHOUT LIMITATION DIRECT OR ACTUAL DAMAGES, SHALL BE 3 - OfnDATA Services Agreement (p:%tele~forms~AFN Dala Services Contr. wpd)(5/99) 12 17'99 FRI 16:28 FAX 541 488 5320 ASHLAND SVC CTR ~005 LIMITED TO THE DIRECT DAMAGES INCURRED BY CUSTOMER IN ACTUAL AND REASONABLE RELIANCE ON THE SYSTEM OR SERVICES, WHICH DAMAGES SHALL NOT, IN THE AC-.-.-.-.-.-.-.-.-.~REGATE, EXCEED 100% OF THE AMOUNT HAVING ACTUALLY BEEN PAID BY CUSTOMER TO AFN IN THE ~VE MONTH PERIOD IMMEDIATELY PRECEDING THE DATE ON WHICH THE BREACH GMNG RISE TO THE DAMAGES OCCURRED. EXCEPT FOR THE PROVISION OF CREDITS TO CUSTOIVER'SACCOUNTAS SPECIFICALLYPROVIDED IN SECTION 4, THE RIGHTS AND REMEDES GRANTED TO CUSTOMER UNDER THIS SECTION 9 CONSTITU'rE CUSTOMER'S SOLE AND EXCLUSIVE REMEDYAGAINST AFN, ITS AGENTS, OFFICIALS AND EMPLOYEES FOR ANY AND ALL CLAIMS ARISING IN CONNECTION WrI'H THE SYSTEMOR SERVICES, INCLUDING BUT NOT LN[TED TO CLAIMS ARISING UNDER STATUTORYOR COMMON LAW OR OTHERVVISE. THERE ARE NO THIRD PARTY BENEFICIARES OF THIS AGREEMENT. CUSTOMER AGREES THAT AFN SHALL HAVE NO LIABILITY FOR THE NEGLIGENCE, PRODUCTS, SERVICES OR WEBSITES OF CUSTOMER; OF AFFLIATES; OF DEVELOPERS OR CONSULTANTS IDENTFIED OR REFERRED TO CUSTOMER BYAFN; OR OF ANY OTHER THIRD PARTY, INCLUDING BUT NOT LIMITED TO LIABILITY FOR THE CONTENT, QUALITY AND ACCURACY OF THE FOREGOING WHICH ARE ACCESSIBLE BY USE OF THE SYSTEM OR SERVICES OF AFN. 10. UNCONTROLLABLE CONDITIONS. Neither party shall be deemed in violation of this agreement flit is prevented from performing any of the obligations under this agreement by mason of severe weather and storms; earthquakes orother natural occurrences; stdkes or other labor unrest; power failures; nuclear or other civi or m~itaryemergenGies; acts of legislative, judicial, e~ecutive or administrative authorities; or any other drcumstances which are not within its reasonable control. 11. SEVERABILITY. In the event that a court, governmental agency, or regulatory body with proper jurisdiction determines that this agreement or a provision of this agreement is unlawful, this agreement. or that provision of the agreement to the extent it is unlawful, shall terminate. If a provision of this agreement is terminated but the parties can legally, commercially and practicably continue wthout the terminated provision, the remainder of this agreement shall continue in effect. · ~2. GENERAL PROVISIONS. Failure or delay by either pady to e~ercise any right or privtlege under this agreement will not operate as a waiver of such right or privilege. This agreement may be assigned by Customer only with the consent of AFN. This agreement constitutes the entire understanding between Customer and AFN with respect to Service provided herein and supersedes any prio!7 agreements or understandings. 13. SPECIAL PROVlSK)Na. Customer: By: Title: ? :te~>,,~_-c-r- AFN Legal Review By: Date: 4 - af!IDATA Services Agreement (p:~tele%/orms~FN Data Services Conlr. wpd)(5/99)