Loading...
HomeMy WebLinkAbout2000-124 AFN Agrmt - ACHashland .fiber neLvork afRDA 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 dnDATA services ("Dam Services') on AFN's telecommunicaticns system through its fiber optic network (the "network" or "system"). Customer Name: ASHLAND COMMUNITY HOSPITAL Billing Address: P.O.BOX 98, ASHLAND Premises Address (if different): Data Sen/ices Rate: t 0Mbpe + [] 100Mbps + __ IP addresses = $_.~;L~month IP addresses = $ /month Installation harge:l~10Mbps $ 750.00 1. SERVICES. Customer shall purchase and AFN shall provide to Customer: extension period shall be the raw then in effect, as publlehed by AFN, at least 45 days prior to the termination date. 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 bcetlon where the network and Customers system are interconnected. 1.2. INSTALLATION SERVICES. Installa~on servloes censist of coordinating with Customer the necessary enginesring, 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 cempleted 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 widng, switches, routam, cabinets or other equipment ("celloctively 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 pdor to the termination date, this agreement shall be extended for successive one year pedods on the same terms and conditions except for the rate specired in section 3. The rate for each 4. SERVICE LEVELS. AFN will exercise reasonable efforts to provide service on a 24-hour-a-day, 7-day-per-week basis. Customer u nderetands and acknowledges th at AF N does not warrant that its service will be provided without interruption. Customer also understands that the rates and speed forthis service is based on the utilization of buretable 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 transmissions are 3. CHN~Gse. 3.1. DATA SERVICES RATe. From the service acceptance data, 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 shill 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 data"). 3.2. INSTALLATION SERVICES CH.N~GE. 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 egreement (the "due date'). 3.3. LATE PAYMENTS, DEPOSIT. Payments received after the due date may be subject to a charge of 1½% per month on lhe unpaid balance ~ the discretion of AFN. AFN may require Customer to pa a deposit in advance of the provision of any service. Any su~rt deposit shall be held by AFN in a non-interest beadng account and used to satisf,/(in whois or in part) any obligation of Customer under this agreement. withip 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 wdrten 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 1 - afrlDATA Services Agreement (p:~ele~fomns~)aTA SERV1CES CONTRACT.DOC)(5/99) interruption which is not excused, as prevlded in this section or otherwise, which exceeds 24 consecutive houm 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 pedod dudrig which the failure or interruption continues. This credit shall be the soil 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 scheduild netwonk maintenance. 5. AFN FACILITIES. Any AFN facilities installed on Customers premises shall be and remain the preperty 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 customere 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 reasenabla 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 preper environment as specified by AFN. 5.3. D/~MAGE. Customer agrees to exemise due care and caution to protect AFN'S facilities from the weather, vandalism and other potential problems. Customer shall be liabil for any lose or damage to AFN's facilities at any location adsing 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 lose or damage to AFN's facilities for which Customer is liabil, Customer shall reimburse AFN for the ilsser of the reasonabil 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 preparetlens required to comply with AFN'S installation and maintenance instruc'dons. Such preparafiens include obtaining all necessary consents forthe installation and use of AFN facilities in the building, including consents for necessary (a) Customer shall be responsible for the use and compatibility of equipment or software not prevideq 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 nonetheiase be liable for payment for all cervice, 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 se, 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 sot forth in applicabil aiteretions to buildings; ensudng that any floor loading limits will not be exceeded; providing suitable accommodations, foundations and an environment to meet the environmentel specifications for AFN including all necessary trunking, conduits and Cabil trays; providbg suitable electdc power and any other utilities needed by AFN to insfall, 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 instelfation as scheduled, any f'~d or fixed floor coverings, ceiling tiles, suspended Ceilings and partition covers. 6.2. Premises Access. Customer shall previde 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 instellad. AFN shall not be responsibil 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 orthe continuation thereof are a result of the failure of Customer to provide access to the place at each leceticn where AFN facilities are instalild supporting the failing service or connectbn. (a) During impilmentation, AFN will normally CarP/out work required to install and/or repair AFN's facilities dudrig 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 apprepdate 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. ACCEFrABLE USE POUClES. Customer shall comply with AFN's acceptsbia use policies. The acceptsbla use policies are subject to change at any time by AFN acting in its soil 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. technical publications. Notwithstanding the undertaking of Customer in the prior sentence, if, in AFN's reasonabil opinion, the techniCal integrity of the netwok 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 responsibil, AFN may suspend the previslen 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 possibio. (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 configura~on for its equipment's interface with the network. 2 - afnDATA Services Agreement (p:~,e%forms~DATA SERVICES CONTRACT.DOC)(5/99) (d) AFN may from bme 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 instrucf~ons 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 failu re to pay a sum due, or within 30 days for any other cause, and such cause is not corrected within the applicable pedod. 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 Custemer's inability to meet obligations when due; or failure of Customer to cure any mistion (otherthan failure to pay) of the provisions of this agreement within 30 days notice by AFN. 7.t. CESSA'nON OF SERV1CE. AFN may deny Customer access to the network and cease to provide all or part of any services described in this agreement v~thout 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 criminal 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 OF ACCF. BS. 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 intemet, (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 proriders of services, merchandise or information of any discentinuanca 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 NETWORK) AS IS AND WrrH 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) AN D 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; EXCLUSNE 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 ANYSPECIAL, 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 ANYBREACH BY AFN OF THiS AGREEMENT, TO THE PROVISION OR USE OF OR INABILITY TO USE THE SYSTEM OR SERVICES OR OTHERWISE WiTH RESPECT TO ANY SUBJECT MATTER OF THIS AGREEMENT, EVEN IF AFN HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. AFN'S TOTAL LIABILITY TO CUSTOMER UNDER THIS AGREEMENT AND THE TRANSACTIONS CONTEMPLATED HEREBY, INCLUDING WITHOUT LIMITATION ANY LIABILITY OF AFN FOR ANY DAMAGES OF ANY NATURE WHATSOEVER, INCLUDING WITHOUT LIMITATION DIRECT OR ACTUAL DAMAGES, SHALL BE LIMITED TO THE DIRECT DAMAGES INCURRED BY CUSTOMER IN ACTUAL AND REASONABLE RELIANCE ON THE SYSTEM OR SERVICES, WHICH DAMAGES SHALL NOT, IN THE AGGREGATE, EXCEED 100% OF THE AMOUNT HAVING ACTUALLY BEEN PAID BY CUSTOMER TO AFN IN THE TWELVE MONTH PERIOD IMMEDIATELY PRECEDING THE DATE ON WHICH THE BREACH GIVING RISE TO THE DAMAGES OCCURRED. EXCEPT FOR THE PROVISION OF CREDITS TO CUSTOMER'S ACCOUNT AS SPECIFICALLY PROVIDED IN SECTION 4, THE RIGHTS AND REMEDIES GRANTED TO CUSTOMER UNDER THIS SECTION 9 CONSTITUTE CUSTOMER'S SOLE AND EXCLUSIVE REMEDY AGAINST AFN, iTS AGENTS, OFFICIALS AND EMPLOYEES FOR ANY AND ALL CLAIMS ARISING IN CONNECTION WITH THE SYSTEM OR SERVICES, INCLUDING BUT NOT LIMITED TO CLAIMS ARISING UNDER 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. N either pad',/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 occurrencas; sthkes or other labor unrest; power failures; nuclear or other cMI or military emergencies; acts of legislative, judicial, executive or administretive authorities; or any other circumstances which are not within its reasonable control. 3 - afnDATA Services Agreement (p:'~m4e',forms%DATA SERVICES CONTRACT.DOC)(5/99) 1 t. $EVERA~UTV. In the event that a court, govemmental 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 lagally, commemially and practicably continue without the terminated pmvisbn, 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 heroin and supersedes any prior agreements or understandings. 13, SPEcw, PRO~qS~ONS. Customer: By: Title: Date: By: Title: Date: AFN: Date: ')- p/-~o AFN Legal Review By: Y"'/" Date: 4 - afnDATA Services Agreement (p:'cele~forrr~DATA SERVICES CONTRACT. DOC)(5/99)