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HomeMy WebLinkAbout1999-220 AFN Agrmt-MarketingReseshlenl fi#er netwerk ¢ I 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 ofnDATA services ("Data Services") on AFN's telecommunications system through its fiber optic network (the "network" or" system"). Customer Name: MARKETING RESOURCE GROUP Premises Address: 320 E. MAIN Data Services Rate: , lOMbps + 4 ~/' IP addresses = $ '7 /7> (v~ /month [] lOOMbps + __ IP addresses = $ /month Installation Charge: [] 10Mbps $ 750.00 ~%~/ [] 100Mbps $1,250.00 ~ [] Custom $ 1. Services. Customer shall purchase and AFN shall provide to Customer: as "AFN facilities") necessary to connect Custo facilities to the network. 1.1. Data Services. Data Services permit access by Customer to AFN's telecommunications 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 configuration 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, touters, cabinets or other equipment (" collectively referred to 2. Term. This agreement will be effective upon date executed by AFN and shall continue for one y unless sooner terminated as provided in agreement. In the event written notice is not give either party to terminate this agreement at leas days prior to the termination date, this agree shall be extended for successive one year period the same terms and conditions except for the specified in section 3. The rate for each exten period shall be the rate then in effect, as publishe AFN, at least 45 days prior to the termination date 3. Charges. 3.1. Data Services Rate. From the ser acceptance date, Customer shall pay the specified above for each month of service. If service does not begin on the first day of a bi cycle, then payments for the first month shall 1 - ofrIDATA Services Agreement(p:\tele\forms~,FN Data Services k.wpd)(5/99) ~T:Mike Ainsworth- AFN Data Services Contr.wpd . ""'. ""' .................................................~'~'.'.~.'i. prorated on a daily basis. All sums shall be paid within 20 days after the date of the monthly billing for services (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 shall be due and payable upon execution of this agreement (the "due date"). 3.3. Late Payments, Deposit. Payments received after the due date may be subject to a charge of 11/2% per month on the unpaid balance at the discretion of AFN. 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 bearing account and used to satisfy (in 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 for this service is based on the utilization 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 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 interruption which is not excused, as provided in this section or otherwise, which exceeds 24 consecutive hours in duration, and of which AFN receives written notice within 48 hours of such failure or interruption, AFN shall credit Customer's account with respect to the affected service by an amount equal to one-thirtieth of the recurring monthly charge for the service for each 24-hour period during which failure or interruption continues. This credit shal the sole and exclusive remedy of Customer respect to any interruption or failure of the service such credit shall be due, however, if the interrupti caused by reasons beyond the reasonable contr AFN or for reasons related to scheduled net maintenance. 5. AFN Facilities. Any AFN facilities installed Customer's premises shall be and remain property of AFN and may be repaired or replace any time and removed at the termination of ser and may be used to supply other customers of whether or not on the same premises. No re other charge shall be made by Customer on AF placing or maintaining its facilities upon Custo premises. AFN shall be entitled, at any time, to aft AFN facilities a label indicating the interest of AFN 5.1. Removal. Customer will use reason efforts to ensure that AFN facilities are not rem or caused to be removed by any person, other AFN or without AFN's prior written consent. 5.2. Proper Environment. Customer use reasonable efforts to keep the location of A facilities in the proper environment as specifie AFN. 5.3. Damage. Customer agrees to exer due care and caution to protect AFN's facilities f the weather, vandalism and other potential probl Customer shall be liable for any loss or damag AFN's facilities at any location arising f Customer's negligence, intentional act, unauthor maintenance or other cause within the reason control of Customer, its employees or agents. In event of any loss or damage to AFN's facilitie which Customer is liable, Customer shall reimb AFN for the lesser of the reasonable cost of repa the actual cost of replacement. 6. Rights and Obligations of Customer. 6.1. Installation. Customer shall at expense undertake all necessary preparat required to comply with AFN's installation maintenance instructions. Such preparations inc 2 - ofrlDATA Services Agreement(p:\tele\forms'AFN Data Services k.wpd)(5/99) obtaining all necessary consents for the installation and use of AFN facilities in the building, including consents for necessary alterations to buildings; ensuring that any floor loading limits will not be exceeded; providing suitable accommodations, foundations and an environment to meet the environmental specifications for AFN including all necessary trunking, conduits and cable trays; providing suitable electric power and any other utilities needed by AFN to install, test and or maintain AFN facilities; providing a suitable and safe working environment for AFN's personnel, including an environment safe from environmental hazards; and taking up or removing, in time to allow AFN to carry out installation as scheduled, any fitted or fixed floor coverings, ceiling tiles, suspended ceilings and partition covers. 6.2. Premises Access. Customer shall provide 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 by AFN. After the service acceptance date, Customer will provide AFN reasonable access to the Customer premises where any AFN facilities are installed. AFN shall not be responsible for any faults on the network or any failure to perform the provisions of this agreement to the extent 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 failing service or connection. (a) During implementation, AFN will normally carry out work required to install and/or repair AFN's facilities during its 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 agrees to pay overtime and any other appropriate charges agreed between the parties. (b) Any out-of-pocket costs reasonably ~ncurred by AFN as a consequence of the denial of access by Customer (or building owner) to any location shall be paid by Customer. AFN shall advise Customer of any such costs on a case by case basis. 6.3. Acceptable Use Policies. Custo shall comply with AFN's acceptable use policies. acceptable use policies are subject to change at time by AFN acting in its sole discretion, and all changes shall be binding upon Customer upon wr notice to Customer by AFN. Copies of such poll will be furnished by AFN upon request. 6.4. System Integrity. (a) Customer shall be responsibl the use and compatibility of equipment or softwar provided by AFN. In the event that Customer equipment or software not provided by AFN w impairs Customer's Data Services or the net Customer shall nonetheless be liable for paymen all service, including without limitation any softw provided by AFN. Upon notice from AFN that equipment or software not provided by AF causing or is likely to cause any hazard, interfere or service obstruction, Customer shall immedi eliminate the likelihood or hazard, interference service obstruction and if Customer fails to do AFN may take such action as it deems require eliminate such hazard, interference or set obstruction. (b) Customer will only connect to network using industry standard equipment w complies and is compatible with the ser specifications set forth in applicable tech publications. Notwithstanding the undertaking Customer in the prior sentence, if, in A reasonable opinion, the technical integrity of network or the services being provided over network to Customer or any other third party is b jeopardized or is likely to be jeopardized as ares the connection of any Customer premises equip to the network by Customer or by any other activit which Customer is responsible, AFN may sus the provision of the services to any connectio affected. Following remedial action by Custo satisfactory to AFN, AFN will reinstate the set provided through that connection as soon as possi (c) AFN reserves the right to allo refuse to allow any make, model or software revi of customer-provided equipment to be used gateway to any network access. Customer cooperate with AFN in setting the initial configur 3 - Of RDATA Services Agreement(p:\tele\forms~AFN Data Services k.wpd)(5/99) for its equipment's interface with the network. (d) AFN may from time to time issue technical instructions on the use of the network to ensure the proper functioning of the services or the protection of the network from damage or deterioration. Technical instructions will be observed by Customer. 7. Termination. Either party may terminate this agreement for cause, provided written notice is given the other party specifying the cause for termination and requesting correction within 10 days for failure to pay a sum due, or within 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 failure to pay any amount when due, the filing of a petition in bankruptcy by or against Customer or Customer's inability to meet obligations when due; or failure of Customer to cure any violation (other than failure to pay) of the provisions of this agreement within 30 days 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 services described in this agreement without 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 risk that AFN may be subjected to civil or criminal litigation, charges, or damages; or (c) would cause AFN to be denied access or to lose services by AFN's internet provider. 7.2. Cessation of access. If AFN ceases to provide or denies Customer access to the network pursuant to this section, neither Customer nor any of its customers shall have any right (a) to access through AFN any materials stored on the internet, (b) to obtain any credits otherwise due to Customer, and such credits shall be forfeited, or (c) to access third party services, merchandise or information on the internet through AFN. AFN shall have no responsibility to notify any third-party providers of services, merchandise or information of any discontinuance of any services pursuant to this section, nor any responsibility for any consequences resulting from lack of such notification. 7.3. Termination fee. If AFN terminates agreement for cause, or if Customer terminates agreement without cause, Customer shall pay A termination fee equal to the lesser of (a) remaining charges applicable through the end of scheduled term, or (b) six months of charges. 8. NO WARRANTIES. TO THE EXT PERMITTED BY APPLICABLE LAW, AFN PROVIDING THE SERVICES AND THE SYS (INCLUDING BUT NOT LIMITED TO THE FACILITIES AND ANY ACCESS TO NETWORK) AS IS AND WITH ALL FAULTS, HEREBY DISCLAIMS ALL OTHER WARRANTIE ANY, EITHER EXPRESS, IMPLIED, STATUT OR OTHERWISE WITH RESPECT TO ANY OF SYSTEM AND SERVICES PROVIDED OR TO PROVIDED UNDER THIS AGREEM INCLUDING BUT NOT LIMITED TO ANY (IF A AND ALL IMPLIED WARRANTIES MERCHANTABILITY, FITNESS FOR PARTICULAR PURPOSE, OF LACK OF VIRU LACK OF NEGLIGENCE OR LACK WORKMANLIKE EFFORT. AFN MAKES NO WARRANTY: (a) OF TITLE, Q ENJOYMENT OR LACK OF INFRINGEMENT RESPECT TO THE SYSTEM OR SERVICES; THAT THE SYSTEM OR SERVICES ARE "Y 2000" COMPLIANT; AND (c) THAT OPERATION OF THE SYSTEM OR SERVICE BE UNINTERRUPTED OR ERROR FREE. 9. EXCLUSION OF CERTAIN DAMA LIMITATION OF LIABILITY AND REME EXCLUSIVE REMEDY. TO THE MAXIMUM EXT PERMITTED BY APPLICABLE LAW, IN NO EV WILL AFN BE LIABLE UNDER ANY CONTR NEGLIGENCE, STRICT LIABILITY OR OT THEORY FOR ANY SPECIAL, INDIR INCIDENTAL OR CONSEQUENTIAL DAMA (INCLUDING BUT NOT LIMITED TO DAMA FOR LOSS OF PROFITS OR CONFIDENTIAL OTHER INFORMATION, FOR BUSIN INTERRUPTION, FOR PERSONAL INJURY, LOSS OF PRIVACY, FOR FAILURE TO MEET DUTY INCLUDING OF GOOD FAITH OR REASONABLE CARE, FOR NEGLIGENCE, FOR ANY OTHER PECUNIARY OR OTHER L WHATSOEVER) ARISING OUT OF OR IN ANY 4 - ofltDATA Services Agreement(p:\tele\formsVs, FN Data Services k.wpd)(5/99) RELATED TO ANY BREACH BY AFN OF THIS AGREEMENT, TO THE PROVISION OR USE OF OR INABILITY TO USE THE SYSTEM OR SERVICES OR OTHERWISE WITH RESPECT TO ANY SUBJECT MATTER 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 WITHOUT LIMITATION DIRECT OR ACTUAL DAMAGES, SHALL BE LIMITED TO THE DIRECT DAMAGES INCURRED BY CUSTOMER IN ACTUAL AND REASONABLE RELIANCE ON THE SYSTEM OR SERVICES, WHICH DAMAGES SHALL NOT, IN THE AGGREGATE, EXCEED 100% OF THE AMOUNT HAVING ACTUALLY BEEN PAID BY CUSTOMER TO AFN IN THE TWELVE MONTH PERIOD IMMEDIATELY PRECEDING THE DATE ON WHICH THE BREACH GIVING RISE TO THE DAMAGES OCCURRED. EXCEPT FOR THE PROVISION OF CREDITS TO CUSTOMER'S ACCOUNT AS SPECIFICALLY PROVIDED IN SECTION 4, THE RIGHTS AND REMEDIES GRANTED TO CUSTOMER UNDER THIS SECTION 9 CONSTITUTE CUSTOMER'S SOLE AND EXCLUSIVE REMEDY AGAINST AFN, ITS AGENTS, OFFICIALS AND EMPLOYEES FOR ANY AND ALL CLAIMS ARISING IN CONNECTION WITH THE SYSTEM OR SERVICES, INCLUDING BUT NOT LIMITED TO CLAIMS ARISING UNDER STATUTORY OR COMMON LAW OR OTHERWISE. 10. Uncontrollable Conditions. Neither party be deemed in violation of this agreement if prevented from performing any of the obligat under this agreement by reason of severe wea and storms; earthquakes or other natural occurren strikes or other labor unrest; power failures; nucle other civil or military emergencies; acts of legisla judicial, executive or administrative authorities; or other circumstances which are not within reasonable control. 11. Severability. In the event that a c governmental agency, or regulatory body with pr jurisdiction determines that this agreement O provision of this agreement is unlawful, agreement, or that provision of the agreement to extent it is unlawful, shall terminate. If a provisio this agreement is terminated but the parties legally, commercially and practicably continue wit the terminated provision, the remainder of agreement shall continue in effect. 12. General Provisions. Failure or delay by ei party to exercise any right or privilege under agreement will not operate as a waiver of such or privilege. This agreement may be assigne Customer only with the consent of AFN. agreement constitutes the entire understan between Customer and AFN with respect to Ser provided herein and supersedes any prior agreem or understandings. 13. Special Provisions. THERE ARE NO THIRD PARTY BENEFICIARIES OF THIS AGREEMENT, CUSTOMER AGREES THAT AFN SHALL HAVE NO LIABILITY FOR THE NEGLIGENCE, PRODUCTS, SERVICES OR WEBSITES OF CUSTOMER; OF AFFILIATES; OF DEVELOPERS OR CONSULTANTS IDENTIFIED OR REFERRED TO CUSTOMER BY AFN; 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. Customer: By: Title: Date: ,'1 / 2,~1/¢q 5 - cifrlDATA Services Agreement(p:\tele\forms~AFN Data Services k.wpd)(5/99) By: Title: Date: AFN: By: ~' ~'~t'~: lT- ~i~~~ AFN Legal Review By: J 2J/~l:]ate: ~ 6 - (;IfIIDATA Services Agreement(p:\tele\forms~,FN Data Services k.wpd)(5/99)