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HomeMy WebLinkAbout2000-107 AFN Agrmt - Tribalwareashland fiber network afRDA TA SERVICES AGREEMENT Agreement between the City of Ashland by and through its Department of Electric Utilities, Ashland Fiber Network Division CAFN") and Customer named below for afIIDATA services ("Data Services") on AFN's telecommunications system through its fiber optic network (the "network" or "system"), CUSTOMER: TRIBAL WARE Billing Address: 135 RYDER LANE, ASHLAND Premises Address (if different): Data Services Rate: 10Mbps + ~ IP addresses = $~2~_/month ~/{~100Mbps + IP addresses = $ /month I. 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 descdbed above. The point of deliveP/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 service is available to the Customer ("the service accaptanca date"). In addition, AFN will install such wiring, 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 prior to the termination date, this agreement shall be extended for successive one year pedods on the same terms 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 bumtable data transmission methodology where the full bandwidth contracted for is to be utilized in bursts only and not continuously. AFN may monitor 4nstalla 'on Charge: [] 10Mbps $ 750.00 [] 100Mbps $1,250.00 [] Custom $ 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 pdor 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 flint 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 SERVICF_~ 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. Customers bandwidth utilization in order to ensure that Customers 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 1 - afnDATA Services Agreement (p:\tele\forms~)ATA SERVICES CONTRACT.DOC)(5/99) 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 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 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 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 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 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 written 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, unauthodzed 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 (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 software not provided by AFN which impairs Customers 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, interterence, 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, installation and use of AFN facilities in the building, including consents for necessary alterations to buildings; ensudng 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 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. interference or service obstruction. (b) Customer will only connect to the network using industry standard equipment which complies and is compatible with the service specifications set forth in applicable technicel 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 2 - afnDATA Services Agreement (p:\tele\forrns~DATA SERVICES CONTRACT.DOC)(5/99) 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 configuration for its equipment's interface with the network. (d) AFN may from time to time issue technicel 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 Customers 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 shalt 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 THE AFN FACILITIES AND ANY ACCESS TO THE NE'FWORK) 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 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 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 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 MA'I'I'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 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. 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 3 - afnDATA Services Agreement (p:\tele\forms\DATA SERVICES CONTRACT.DOC)(5/99) · 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 CONDI11ONS. Neither party shall be deemed in violation of this agreement if it is prevented from performing any of the obligations under this agreement by mason of severe weather and storms; earthquakes or other natural occurrences; stdkes 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 dght 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 pdor agreements or understandings. '13. SPECIAL PROVISIONS. By: Title: Date: AFN Legal Review By: Da~: 4 - afnDATA Services Agreement (p:~tele\forms',DATA SERVICES CONTRACT.DOC)(5/99)