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Home My WebLink About2000-123 AFN Agrmt - Erdogan~Tshlcmd .fiber network q BDATA 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 ClfnDATA services ("Data Services") on AFN's telecommunications system through its fiber optic network (the "network" or "system"). CUSTOMER: HAD ERDOGAN Billing Address: 1257 SISKIYOU BLVD. Premises Address (if different): IOOb ~:::1¢.1..t~l~ d~3.~")/ Data Services Rate: 100Mbps + IP addresses = $ /month Installation Charge:~ 10Mbps $ 750.00 0 1 [] 10Mbps $ ,250.00 [] Custom $ 1. SERVICES. Customer shall purchase and AFN shall provide to Customer: 1.'1. DATA SERVfCES. Data Services permit access by Customerto 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 Customers system are interconnected. 3, CHARGES. 3.1. DATA SERVICES I:~,TE. 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'). 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, routere, cabineta or other equipment ("collectively referred to as "AFN tacilities")necessarytoconnectCustomer'stacilitiestothe 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 wdtten 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. 3.2. 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, DEPOSn'. 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 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 Customers 1 - afrlDATA Services Agreement (p:~tele~forms~AFN Data Services Contr.wpd)(5/99) 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 ),FN receives wdtten 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 forthe service for each 24-hour pedod 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 meintanance. 5. AFN FAC~LmES. Any AFN fadlies installed on Customer's premises shall be and remain the property of AFN and may be repaired or replaced at any tim 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 fadlilies upon Customer's premises. AFN shall be entitled, at any time, to affix to AFN fadlifies a label indicating the interest of AFN. 5.1. REMOVAL Cusforner will use reasonable efforts to ensure that AFN ~ili~ 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. Custoffler 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 facilrdes at any location arising from Customers negligence, intenlbnal act, unauthorized maintenance or other cause within the reasonable control of Customer, its employees or agents. In the event of any less or damage to AFN's fadlitise 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 necessan/preparations required to comply with AFN's installation and maintenance instructions. Such preparations include obtaining all necessary consents for the installation and use of AFNfacilities 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 electdc power and any other utilities needed by AFN to install, test and or maintain AFN facilities; providing a suitable and safe working environment tor 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 titted 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 data, 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) Dudng implementation, AFN will normally carry out work required to install and/or repair AFN's fadlities dudng 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, 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 m 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, Customar 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 - I:IfIIDATA Services Agreement (p:%tele~forms%AFN Data Services Conlr.wlxJ)(5/99) 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, interference, or service obstruction, Customer shall immediately eliminate the likelihood or hazard, interference, or service obstruction and if Customer tails 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 is compatible with the service specifications set forih 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 activi{y for which Customer is responsible, AFN may suspend the provision of the services to any connection so affected. Following remedial action by Customer setlefactory to AFN, AFN will reinstate the service provided through that connection as soon as possible. (c) AFN reserves the right to allow or mbse to allow any make, model or software revision of customer- provided equipment to be used as a gateway to any network access. Customer will cooporele with AFN in setling the initial configuration for its equipment's intertace 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. TERMINA~ON. Either party may terminate this agreement for cause, provided written notice is given the other party specifying the cause for termination and requesting corrt~:tton within 10 days for tailure 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 rnaterial 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 violetion (other than tailure to pay) of the provisions of this agreement within 30 days notice by AFN. 7.1. CESSATION OF SERVICE. AFN me, y deny Customer access to the network and cease to provide all or part of any services desodbed 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 dsk that AFN may be subjected to civil or cdminal litigation, charges, or damages; or (c) would cause AFN to be denied access or to lose services by AFN's intemet 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 otheRvise 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. TERMINA'nON FEE. If AFN terminates this agreement fur 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 NETWORK) AS IS AND WITH ALL FAULTS, AND HEREBYDISCLAIMSALLOTHERWARRANTIES, IFANY, 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 PERMI'I'I'ED 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 3 - OfrlDATA Services Agreement (p:~tele~forms~AFN Data Services Contr.wpd)(5/99) 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 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 OFANY NATUREWHATSOEVER, 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 PRO.VISION OF CREDITS TO CUSTOMER'S ACCOUNTAS SPECIFICALLY PROVIDED IN SECTION 4, THE RIGHTS AND REMEDIES GRANTED TO CUSTOMER UNDER THIS SECTION 9 CONSTITUTE CUSTOMERS 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 THATAFN SHALL HAVE NO LIABILITY FOR THE NEGLIGENCE. PRODUCTS, SERVICES OR W~BSITES 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 OF AFN. I 0. 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 militap/emergencies; acts of leg islative, judicial, executive or administrative authorities; or any other circumstances which are not within its reasonable control. 11. SEVERABILITY. In the f~vent 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. t 2. 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 pdvilege. 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: By: Title: Date: AFN Legal Review By: Date:_ 4 ~ Of~IDATA Services Agreement (p:~tele~forms~AFN Data Services Contr.wpd)(5/99)