HomeMy WebLinkAbout1999-222 AFN Agrmt-SteamPoweredashland fiber network
DA TA
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 aftlDATA services ("Data Services") on AFN's telecommunications
system through its fiber optic network (the "network" or "system")
Customer Name: STEAM POWERED LLC
Address 11580 CORP RANCH ROAD
Data Services Rate:
[~ lOMbps +
lOOMbps +
IP addresses = $ ~.,l..~month
IP addresses = $ /month
[] Custom
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 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
engineenng, 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 wdl install such wiring, switches, routers, cabinets or
other equipment ("collectively referred to as "AFN
facilities') necessary to connect Customer's 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 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
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
birling 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 1 ~% 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 thatAFN
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 Customer's
bandwidth utilization in order to ensure that Customer's
1 - ~IfI1DATA Services Agreement (p:\tele\forms~AFN Data Services Contr wpd)(5/99)
transmlss,ons 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 bindin9 upon Customer upon written
notice to Customer by AFN
In the event of a serwce 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 the failure or interruption continues. This
credit shall be the sole and exclusive remedy of Customer
with respect to any interruption or failure of the service 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 Customer's
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 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 affix to AFN
facilities a label indicatin9 the interest of AFN
5.1. REMOVAL. CustomerwJll use reasonable efforts
to ensure that AFN facilities are not removed or caused to be
removed by any person, other than AFN or without AFN's
prior wntten consent.
5.2. PROPER ENVIRONMENT, Customer shall use
reasonable efforts to keep the location of AFN's facilities in
the proper environment as specified by AFN.
5.3. DAMAGE. Customer agrees to exercise due care
and caution to protect AFN's facilities from the weather,
vandalism and other potential problems Customer shall be
liable for any loss or damage to AFN's facilities at any
location arising from Customer's negligence, intentional act,
unauthorized maintenance or other cause within the
reasonable control of Customer, its employees or agents. In
the event of any loss or damage to AFN's facilities 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. RfGHTS 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 exceeded; providing
suitable accommodations, foundations and an environment
to meet the environmental specifications forAFN 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
murine 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
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 any such costs on
a case by case basis.
6.3. ACCEPTABLE USE POLICIES. Customer shall
comply with AFN's acceptable use policies. The acceptable
use policies 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
Copies of such policies will be furnished by AFN upon
request.
6.4. SYSTEM INTEGRITY.
(a) Customer shall be responsible for the
use and compatibility of equipment or software not provided
by AFN. In the event that Customer uses equipment or
2 - afrlDATA Services Agreement (p:\tele\forms~AFN Data Services Contr.wpd)(5/99)
software not provided by AFN which impairs Customer's
Data Servrces or the network, Customer shall nonetheless be
Iiabie 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
~s likely to cause any hazard, interference, or service
obstruction, Customer shall immediately eliminate the
likelihood or hazard, interference, or service obstruction and
if Customer fails to do so, AFN may take such action as it
deems required to eliminate such hazard, interference or
service obstruction
(b) Customer will only connect to the
network using industry standard equipment which complies
and ~s compatible with the service specifications set fodh in
applicable technical publications Notwithstanding the
undertaking of Customer in the prior sentence, if, in AFN's
reasonable opinion, the technical integrity of the network or
the services 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 connection 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 remedialaction 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
configuration for its equipment's interface with the network
(d) AFN may from time to time issue
technical ,nstruotions 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 parb/ may terminate this agreement
for cause, provided written notice is given the other party
specifl/ing 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 ,f 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, memhandise or information on
the internet threugh AFN. AFN shall have no responsibility to
notify any third-party providers of services, memhandise 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 this
agreement for cause, or if Customer terminates this
agreement without cause, Customer shall pay AFN a
termination fee equal to the lesser of (a) the remaining
charges applicable through the end of the scheduled term, or
(b) six months of charges.
8. NO WARRANTIES. TO THE EXTENT PERMI'FFED 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 THIS AGREEMENT, 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 WORKMANLIKE
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
LIABILITY AND REMEDY; EXCLUSIVE REMEDY. TO THE
MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW,
IN NO EVENT WILL AFN BE LIABLE UNDER ANY
CONTRACT, NEGLIGENCE, STRICT LIABILITY OR
OTHER THEORY FOR ANY SPECIAL, INDIRECT,
INCIDENTAL OR CONSEQUENTrAL 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
3 - Of/1DATA Services Agreement (p:\tele\forms~AFN Data Services Contr.wpd)(5/99)
FAIL,IRE 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 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 WITH RESPECT TO ANY SUBJECT
MATTER OF THIS AGREEMENT, EVEN IF AFN HAS
BEEN ADVISED OF THE POSSIBILITY OF SUCH
DAMAGES
AFNS 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 TVVELVE 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.
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 legislative, judicial, executive
or admimstrative authorities; or any other circumstances
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
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:
By:
Title:
Date:
By:
Titte:
Date:
AFN:
Title:
Date:
AFN Legal Review By:
Date:
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shland J:iber 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 ofnDATA services ("Data Services") on AFN's telecommunications system through
its fiber optic network (the "network" or "system").
Customer Name: ~'~,~,~'~M~,~,~,ALL, C
Billing Address: ~ ~0 ~0~ ~c,~ ~ ·
Premises Address (if different): 'Z~' ~ l/z.. ~ ~
Data Se~ces Rate: Installation Charge: ~ 10Mbps ~~
~ 10Mbps + /~ IP addresses = $~/month~¢' ' ......... ~ 100Mbps $1,25~.00
B 100Mbps + ' IP addresses = $ /month ~ Custom $
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 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, routers, cabinets or other
equipment ("collectively referred to as "AFN facilities")
necessary to connect Customer's 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
th;s 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 byAFN,
at least 45 days prior to the termination date.
3. CHARGES.
31 DATA SERVICES RATE. From the service
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
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 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 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 Customer's 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
1 - ofnDATA Services Agreement (p:\tele\forms~FN Data Services Contr.wpd)(5/99)
pon 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. Wrth
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 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 service. 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 Customeds
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 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 affix to AFN facilities a
label indicating the interest of AFN.
5.1. REMOVAL. Customer will use reasonable effods
to ensure that AFN facilities are not removed or caused to be
removed by any person, other than AFN or without AFN's prior
written consent.
5.2. PROPER ENVIRONMENT. Customer shall use
reasonable effods to keep the location of AFN's facilities in the
proper environment as specified by AFN.
5.3. DAMAGE. Customer agrees to ex~rcise due care
and caution to protect AFN's facilities from the weather,
vandalism and other potential problems. Customer shall be
liable for any loss or damage to AFN's facilities at any location
arising from Customer's negligence, intentional act,
unauthorized maintenance or other cause within the
reasonable control of Customer, its employees or agents. In
the event of any loss or damage to AFN's facilities 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
anyfloor loading limits will not be exceeded; providing suitable
accommodations, foundations and an environment to meetthe
environmental specifications for AFN including all necessary
trunking, conduits and cable trays; providing suitable electric
power and any other utilities needed byAFN 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 f'med 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 byAFN. A~ter the service
acceptance date, Customer will provide AFN reasonable
access to the Customer premises where anyAFN 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
carTy out work required to install and/or repair AF'N'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
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 ofanysuch costs on a
case by case basis.
6.3. ACCEPTABLE USE POLICIES. Customer shall
comply with AFN's acceptable use policies. The acceptable
use policies are subject to change at anytime byAFN acting in
its sole discretion, and all such changes shall be binding upon
Customer upon written notice to Customer by AFN. Copies of
such policies will be furnished by AFN upon request.
6.4. SYSTEM INTEGRITY.
(a) Customershall be responsible forthe use
and compatibility of equipment or software not provided by
AFN. In the event that Customer uses equipment or software
not provided byAFN which impairs Customer's Data Services
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,
Customer shall immediately eliminate the likelihood or hazard,
interference, or service obstruction and if Customer fails to do
2 - OfnDATA Services Agreement (p:\tele\forms~AFN Data Services Contr.wpd)(5/99)
o, AFN may take such action as it deems required to eliminate
such hazard~ interference or service obstruction.
(b) Customerwill only connect to the network
using industry standard equipment which complies and is
compatible with the service specifications set forth in applicable
technical publications. Notwithstanding the undertaking of
Customer in the pdorsentence, if, in AFN's reasonable opinion,
the technical integrity of the network or the services 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 connection 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 ser~ces 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
configuration 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 mayterminate this agreement for
cause, provided written notice is given the other pady
specifying the cause for termination and requesting correction
within 10 days for failure to paya 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 failure to pay any amount when
due, the filing cfa 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 a ny services described in this agreement without notice
if Customer (a) violates any provision of applicable acceptable
use policies; (b) engages in any conduct or adivity 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 OFACCESS. IfAFN 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 this
agreement for cause, or if Customer terminates this
agreement without cause, Customer shall pay AFN a
termination fee equal to the lesser of (a) the remaining charges
applicable through the end of the scheduled term, or (b) six
months of charges.
8. NO WARRANTIES. TO THE EXTENT PERMITTED BY
APPLICABLE LAW, AFN IS PROVIDING THE SERVICES
AND THE SYSTEM (INCLUDING BUT NOT LIMITED TO TH E
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 THIS AGREEMENT, 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 WORKMANLIKE 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; EXCLUSIVE REMEDY. TOTHE
MAXIMUM EXTENT PERMITTED BYAPPLICABLE LAW, IN
NO EVENT WILL AFN BE LIABLE UN DER ANYCONTRACT,
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 MEET ANY DUTY
INCLUDING OF GOOD FAITH OR OF REASONABLE CARE,
FOR NEGLIGENCE, AND FOR ANY OTHER PECUNIARY
OR OTHER LOSS WHATSOEVER) ARISING OUTOF 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 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
3 - OfnDATA Services Agreement (p:\tele\forms~AFN Data Services Contr.wpd)(5/99)
IMITED 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 SPEC IFICALLY PROVIDED IN
SECTION 4, THE RIGHTS AND REMEDIES GRANTED TO
CUSTOMER UNDER THIS SECTION 9 CONSTITUTE
CUSTOMER'S SOLE AND EXCLUSIVE REMEDYAGAINST
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.
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 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
OFAFN
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 legislative, judicial, executive or administrative authorities;
or any other circumstances 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 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.
Date:
AFN:
Title:
Date:
AFN Legal Review By: ~
Date:
4 - OCnDATA Services Agreement (p:~tele\forms'C, FN Data Services Contr.wpd)(5/99)