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HomeMy WebLinkAbout1999-221 AFN Agrmt-Vertex GroupASHLAND 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 ClhlDATA services ('Data Services") on AFN's telecommunications system through CUSTOMER: THE VERTEX GROUP, INC. PremisesAddress: 90 SIXTH STREET 1. SERVICES. Customer shall purchase and AFN shall provide to Customer: 1.1. DATA SERVICES. Data Services permit access by Customer to AFN's telecommunications system at the point of delivery located in the Customers premises described above. The point of delivery is that location where the network and Customers 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 senAce is available to the Customer ("the service acceptance date"). In addition, AFN will install such widng, switches, routers, cabinets or other equipment ("collectively referred to as "AFN facilities") necessary to connect Customers facilities to the network. 2. TERM. This agreement will be effective upon the date executed 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 priorto the termination date, this agreement shall be extended for successive one year pedods on the same terms and conditions et_.ept for the rate specif'md in section 3. The rate for each extension pedod shall be the rate then in effect, as published byAFN, at least 45 days pdor to the termination date. 3, CHARGES. 3.1, DATA SERVICES RATE. From the service acceptance date, Customer shall pay the rate specifk~d 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 alter 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 senAces provided by AFN which charges shall be due and payable upon execution of this agreement (the 'due date"). 3.3. LATE PAYMENT-S, DEPOSIT. Payments received alter the due date may be subject to a charge of 1%% per month on the unpaid balance at the discretion ofAFN. AFN may require Customer to pay a deposit in advance of the provision of any senAce. Any such deposit shall be held by AFN in a non-interest beadrig account and used to satisfy (in whole or in pad) any obligation of Customer under this agreement. 4. SERVICE LEVELS. AFN will exercise reasonable efforts to provide senAce 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 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 jn order to ensure that Customers transmissions are within the burstable utilization rate guidelines. These guidelines are subject to change at any time byAFN acting in its sole discretion, and all such changes shall be binding 1 - of IIDATA SenAces Agreement (p:%tele~forms~FN Data Services Contr.wpd)(5/99) 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 e~cused, as provided in this section or offerwise, which e~.eeds 24 consecutive hours in duration, and of which AFN receives written notice within 48 hours of such failure or interruption, AFN shall credit Customers 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 the failure or interruption continues. This credit shall be the sole and e.~clusive remedy of Customer with respect to any interruption or failure of the sen~ice. No such credit shall be due, however, if the interruption is caused by reasons beyond the reasonable control of AFN or for reasons related to scheduled network maintenance. 5. AFN FACILITIES. Any AFN facilities 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 sen,~.e, and may be used to supply offer customers of AFN whether or not on the same premises. No rent or other charge shall be made by Customer on AFN for placing or maintaining its facilities upon Customer's premises. AFN shall be entitled, at any time, to affLX tO AFN facilies a label indicating the interest of AFN. 5.1. REMOVAL. Customerwill use reasonable efforts to ensure that AFN facilities are not removed or caused to be removed by any person, offer than AFN or without AFN's pdor written consent. 5.2. PROPER ENVIRONMENT. Customer shall use reasonable efforts to keep the location of AFN's facilities in the proper environment as specif'Ed by AFN. 5.3. DAMAGE. Customer agrees to e>ercise due care and caution to protect AFN's fadlies from the weather, vandalism and other potential problems. Customer shall be liable for any loss or damage to AFN's faciities at any location arising from Customer's negligence, intentional act, unauthorized maintenance or offer cause within the reasonable control of Customer, its 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 repair or the actual cost of replacement. 6. RIGHTS AND OBLIGATIONS OF CUSTOMER. 6.1. INSTALLATION. Customer shall at its expense undertake all necessary preparations required to comply with AFN's installation and maintenance instructions. Such preparations include 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 et.,eeded; providing suitable accommodations, foundalions and an envimnmentto meetthe environmental spec/r. ations for AFN including all necessary trunking, conduits and cable trays; providing suitable electric power and any offer 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 allowAFN to carry out installation as scheduled, any fitted or toed floor coverings, ceiling tiles, suspended ceilings and partion covers. 6.2. Premises Access. Customershall 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 byAFN. Afterthe service acceptance date, Customer will provide AFN reasonable access to the Customer premises where anyAFN facilles 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 e~tent that AFN, in good faith, requires access, and any such faults or failures or the continuation thereof are a result of the failure of Customerto 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 fadities during its normal working hours but may, on reasonable notice, require access at other times. At Customers request, AFN will carry out work to install AFN's facilities outside AFN's regular working hours, inwhich eventCustomeragreesto payovertime and any otherappropriate charges agreed between the parties. (b) Any out-of-pocket costs reasonably incurred 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 anysuch costs on a case by case basis. 6.3. ACCEPTABLE USE POUCIE8. Customer shall comply with AFN's acceptable use policies. The acceptable use policies are subject to change at anytime by AFN actjng in its sole discretion, and all such changes shall be binding upon Customer upon written notice to Customer by AFN. Copies of such policies wil be fumished by AFN upon request. 6.4. SYSTEM INTEGRITY. (a) Customershall be responsible forthe use and compatiblity of equipment or software not provided by AFN. In the event that Customer uses equipment or software not provided by AFN which impairs Customer's Data Services or the network, Customer shall nonetheless be liable for payment for all senk:e, 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 likelyto cause any hazard, interference, or sen,~ce obstruction, Customershall immediately eliminate the likelihood or hazard, interference, or sen,ice obstruction and if Customer fails to do 2 - ofrIDATA Services Agreement (p:~tele~forms~AFN Data Services Contr.wpd)(5/99) so, AFN may take such action as it deems required to eliminate such hazard, interference or service obstruction. (b) Customerwil only connect to the network using industry standard equipment which complies and is compatible with the service specifications set forth in applicable technical publications. Notwihstanding the undertaking of Customer in the priorsentence, if, in AFN's reasonable opinion, the technical integrity of the network or the sen,ices being provided over the network to Customer or any other third party is being jeopardized or is likely to be jeopardized as a result of the connectbn of any Customer premises equipment to the network by Customer or by any other activity for which Customer is responsible, AFN may suspend the provision of the services to any connection so affected. Following remedial action by Customer satisfactory to AFN, AFN will reinstate 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 setting the initial conrH:Juration 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 sendices or the protection of the network from damage or deterioration. Technical instructions will be observed 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 correction 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, indnding the failure to pay any amount when due, the ~ing of a petition in bankruptcy by or against Customer or Customers inability to meet obligations when due; or failure of Customer to cure any violation (other than falure 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 sen/ices 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 ligation, charges, or damages; or (c) would cause AFN to be denied access or to lose services by AFN's intemet prorider. 7.2. CESSATION OFACCE~. ffAFN 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 accessthrough AFN any materials stored on the intemet, (b) to obtain any credits othenNise due to Customer, and such credits shall be forfeited, or (c) to access third party services, merchandise or information on the intemet through AFN. AFN shall have no responsiblity to notify any third-party proriders of sen~ices, merchandise or information of any discontinuance of any services pumuant to this section, nor any responsibility for any consequences resulting from lack of such notification. 7.3. TERMINATION FEE. If AFN terminates this agreement for cause, or if Customer terminates this agreement without cause, Customer shall pay AFN a termination fee equal to the lesserof (a)the remaining charges applicable through the end of the scheduled term, or (b) six months of chargas. 8. NO WARRANTIES. TO THE EXTENT PERMITTED BY APPLICABLE LAW, AFN IS PROVIDING THE SERVICES AND THE SYSTEM (INCLUDING BUT NOT LIMITED TO THE AFN FACILITIES AND ANY ACCESS TO THE NETWORK) AS IS AND WITH ALL FAULTS, AND HEREBY DISCLAIMS ALL OTHER WARRANTIES, IF ANY, EITHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE WITH RESPECT TO ANY OF THE SYSTEM AND SERVICES PROVIDED OR TO BE PROVIDED UNDER THISAGREEMENT, INCLUDING BUT NOT LIMITED TO ANY (IF ANY) AND ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OF LACK OF VIRUSES, LACK OF NEGLIGENCE OR LACK OF VVORKMANLIKE EFFORT. AFN MAKES NO WARRANTY: (a) OF TITLE, QUIET ENJOYMENT 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 PERMI'I'FED BY APPLICABLE LAW, IN NO EVENTWILLAFN BE LIABLE UNDERANYCONTRACT, NEGLIGENCE, STRICT LIABILITY OR OTHER THEORY FOR ANY SPECIAL, INDIRECT, INCIDENTAL OR CONSEQUENTIAL DAMAGES (INCLUDING BUT NOT LIMITED TO DAMAGES FOR LOSS OF PROFITS OR CONFIDENTIAL OR OTHER INFORMATION, FOR BUSINESS INTERRUPTION, FOR PERSONAL INJURY, FOR LOSS OF PRIVACY, FOR FAILURE TO IVEET 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 ANY WAY 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 VVITH RESPECT TO ANY SUBJECT MATI'ER 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 3 - ofnDATA Services Agreement (p:~tele~forms~AFN Data Services Contr.wpd)(5/99) LIMITED TO THE DIRECT DAMAGES INCURRED BY CUSTOMSR 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 GMNG RISE TO THE DAMAGES OCCURRED. EXCEPT FOR THE PROVISION OF CREDITS TO CUSTOI~F__R'SACCOUNT AS SPECIFICALLYPROVi::)ED IN SECTION 4, THE RIGHTS AND REMEDIES GRANTED TO CUSTONIF_R UNDER THIS SECTION 9 CONSTITUTE CUSTOMER'S SOLE AND EXCLUSIVE REMEDYAGAINST AFN, ITS AGENTS, OFF IC IALS AN D EMPLOYEES FOR ANY AND ALL CLAIMS ARISING IN CONNECTION WITH THE SYS'IT_.M OR SERVICES, INCLUDING BUT NOT LIMITED TO CLAIMS ARISING UNDER STATUTORYOR COMMON LAW OR OTHERWISE. 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. 10. UNCONTROLLABLE CONDITIONS. Neither party shall be deemed in violation of this agreement if it is prevented from performing any of the obligations under this agreement by reason of severe weather and storms; earthquakes or other natural occurrences; strikes or other labor unrest; power failures; nuclear or other civil or military emergencies; acts of leg islative,jud ioial, e>ecutive or administrative authorities; or any other circumstances which are not within its reasonable control. 11. SEVERABlUTY. In the event that a court, governmental agency, or regulatory body with proper jurisdidion 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 without the terminated provision, the remainder of this agreement shall continue in effect. 12. GENERAL PROVISIONS. Failure or delay by either party to exercise any right or privilege 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 prior agreements or understandings. 13. SPECIAL PROVISIONS, Customer: Date: ~(P,c>[C~Ot By: Title: Date: AFN: B AFN Legal Review By: ~ Date: 4 - ofnDATA Services Agreement (p:~tele~forms%AFN Data Services Contr.wpd)(5/99)