HomeMy WebLinkAbout2004-199 ISP Agmt-Infostructureashland fiber network
AFN Internet
Certified Internet Service Provider Cooperative Agreement
Cooperative Agreement between the City of Ashland, by end through its
Department Of Electdc Utilities, Ashland Fiber Network Division ("AFN"), and Internet Service Proviider ("ISP") named
below for the certification of ISP for afn internet Services on AFN's telecommunications system through its fiber optic
network ("the network").
ISP Name: Infostructure
Telephone: 482-TECH
Billing Address: 611 Siskiyou Blvd. Ste 2
Fax/Email: rmallory@mind.net
1. CERTIFICATION PROGRAM. AFN will designate ISP as a
certified internet service provider on the network. A list of
all certified intemet service providers will be maintained by
AFN and provided to the public upon request. Only
certified intemet service providers will be listed.
2. GOLD SERVICE STANDARD. AFN may make available a
premium "Gold Standard" provider designation. Criteda
for receiving the Gold Standard designation will be
provided by AFN, and may, in AFN's sole discretion be
periodically amended. Providers desiring the Gold
Standard designation must provide evidence satisfactory
to AFN that they meet the minimum customer service
cdteda levels for receiving the designation. AFN, in its
sole discretion shall determine whether a provider meets
the Gold Standard criteria. Providers may not advertise
that they are a Gold Standard service provider without
express authorization from AFN. AFN may offer special
incentive and advertising programs to providers qualifying
for and receiving the Gold Standard provider designation.
AFN may, by written notice to ISP, revoke the Gold
Standard designation from any ISP which fails to maintain.
minimum service level standards for the designation.
3. COOPERATIVE ADVERTISING. AFN will annually publish a
Cooperative Advertising Policy. Pursuant to the terms of
the Cooperative Advertising Policy, AFN will pay up to
75% of the cost of all eligible advertising of ISP, up to a
maximum of $3,000 per year, figured at the lowest net
rates charged by the advertiser to ISP. Eligible advertising
is advertising that is devoted to promoting ISP's intemet
service, AFN and the network; that is directed to Ashland
residents and businesses and that meets AFN's
Cooperative Advertising Policy. The level of AFN's
participation in provider's advertising cost will be
determined by the provider's performance of factors set
forth in AFN's Cooperative Advertising Policy.
4. AFN SERVICE LEVELS.
4.1. BANDWIDTH. AFN will strive to maintain a
network availability of 100% at an average bandwidth of
1Mbps upstream and 3 to 5 Mbps downstream.
4.2. INSTALLATION. AFN will install coaxial cable
from the network to the residence or business of ISP's
customer and install the intedor widng within the residence
or business to the location specified by the customer for
the cable modem connection.
4.3. SERVICE CHARGES. Service calls by AFN
requested by ISP shall be billed to ISP at AFN's published
Telephone: ~'/¢Z- '- T~C~"/ I
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~wice rates if it is dete~ined that the problem was not
the fault or ms~nsibil~ of AFN.
5. CERTIFICATION REQUIREMENTS FOR ISP. ISP agrees to
comfy ~th the foiling r~uirements and pr~ums in
order to ~ilize the ne~ as a ~~ intemet ~wi~
pr~ider.
5.1. REQUIRED MODEMS. ISP shall u~ only tho~
~ble m~ems ~ich meet AFN's ~ble modem
s~cifi~tions for u~ on the ne~ork. ISP shall ~
res~nsible for supplying the ~ble m~ n~~ to
~nn~ Es customer to the ne~o~. ISP may supply the
d~i~ through leasing, dir~ [~le, I~purchase, or
through third-pa~ vendors or contra~ors, ~ ISP's
di~retion.
5.2. ISP SERVICE LEVEL. ISP shall provide
intemet ~wi~ to all Ashland residents or business
~o r~u~t ~wi~ and ~o othe~ m~t the
harem and cr~it or payment requir~ents ~ ISP. ISP
~11 conn~ customem ~thin ten business days from the
date the customer requests ~wice and othe~ m~ts
the r~uir~ents of ISP for ~ewice, or ~en the
n~~ ~Hng of the customer's r~iden~ or busin~
for ~nn~on to the ne~ is in~all~, ~ich~er date
is I~er.
5.3. ~TE PUBLICATION. ISP shall publish its rates
for internet ~nn~ion in a manner that allo~ a~urate
~mpaH~ns for like ~wi~s from different internet
~wi~ pr~idem. ISP shall notify ~N of its rat~ and
pr~ide 30~ay prior notice ~ any change in such ~.
5.4. CO~NDING. All public~ and a~eAising by
ISP for intemet ac~ utilizing the ne~ shall indi~te
the int~ral relationship ~~n ISP and AFN and comply
~th the r~uimments of AFN's c~.bmnding guidelines.
5.5 ACCEPTABLE USE POLICY. ISP shall ~y
~th AFN's a~ptable u~ ~lides. The~ ~lides apply
to ISP and to any ot~r ~n, organization or ent~
using ISP's ~wices. The a~eptable use polici~ am
subj~ to change at any time by ~N acting in its ~le
di~retion, and all such changes shall be binding u~n ISP
u~n ~Een noti~ to ISP by ~N. Copies of such ~lici~
~11 ~ fumish~ by AFN u~n r~ue~.
5.6 . Direct Mailing. ISP shall dir~ mail ~s
customem, either through flyem sent via the Unit~ Stat~
Postal Sewi~, or through ~ail, such a~i~ments as
AFN provides. AFN agr~s to provide no mom than 12
a~e~ments for dir~ mailing per y~r.
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6. Term. This agreement supercedes all previous
agreements and shall be effective upon the date executed
by AFN and shall continue until July 1, 2005, 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 and
conditions except for the connection rates specified in
paragraph 7.
7. PAYMENT. Amounts required to be paid under this
paragraph shall be established by AFN by periodic
publication of rates. Rates may be changed by AFN upon
45 days pdor notice to ISP.
7.1. RESIDENTIAL. ISP shall pay AFN an amount
per month at the published rate for each residential
intemet account of ISP connected to the network. A
residential internet account is an account limited to one
dynamic IP address.
7.2. COMMERCIAL. For each commercial intemet
account of ISP connected to the network, ISP shall pay
AFN an amount per month, at the published rate, for a
single IP address plus an amount for each additional
address. A commercial internet account is an account with
a maximum of eight fixed IP addresses.
7.3. PAYMENT REPORT, DEPOSIT. All sums shall
be paid monthly by the 15th of the month for all of ISP's
accounts connected to the network in the previous month
and for all service charges. For those modems that were
active less than a full month, the ISP will pay a prorated
amount based on the number of days the modem was
active. Beginning Janua~/1, 2005, the minimum monthly
rate for an ISP shall be the equivalent of the amount for a
residential intemet account times twenty. If ISP fails to
pay amounts due by the 15th, ISP agrees to pay a 10%
late charge on the unpaid balance plus interest of 1%%
per month on such balance. AFN may require ISP to pay a
deposit in advance of the provision of any accesS. Any
such .deposit shall be held by AFN in a non-interest
beadng account and used to satisfy (in whole or in part)
any obligation of ISP under this agreement.
8. RECORDS AND AUDIT REQUIREMENTS. ISP shall maintain
a current customer list, including address, phone number
and email address for each subscriber. ISP shall also
maintain fiscal records on a current, monthly basis to
support its reports to City as to the number and types of
customers. AFN or its authorized representative shall
have the authority to inspect, audit, and copy on
reasonable notice and from time to time any records of
ISP regarding its customer list, reports or services directly
pertinent to this agreement. All required records must be
maintained by ISP for three years. No more frequently
than once per month, ISP shall provide AFN a current
customer list within 15 days of AFN's written request for
such. AFN agrees to keep all ISP's records confidential to
the extent permitted by law.
9. 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 pedod. Cause
is any matedal 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 ISP or ISP's
inability to meet obligations when due; or failure of ISP to
cure any violation (other than failure to pay) of the
provisions of this agreement within 30 days notice by
AFN.
8.1. AFN may deny ISP access to the network
and cease to provide all or part of any sen/ices described
in this agreement without noticE; if ISP (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 sen/ices by AFN's internet provider.
8.2. If AFN ceases to provide or denies ISP
access to the network pursuant to this paragraph, neither
ISP nor any of its customers shall have any dght (a) to
access through AFN any matedal!s stored on the intemet,
(b) to obtain any credits otherwise due to ISP, and such
credits shall be forfeited, or (c) to access third party
services, merchandise or information on the intemet
through AFN. AFN shall have no responsibility to notify
any third-party providers of sen/ices, merchandise or
information of any discontinuance of any sen/ices
pursuant to this paragraph, nor any responsibility for any
consequences resulting from lack of such notification ·
8.3. If AFN terminates thiis agreement for cause,
or if ISP terminates 'this agreement without cause, ISP
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.
8.4. If AFN terminates this agreement for cause,
or if ISP terminates this agreement without cause, without
further notice to ISP, AFN may, in its sole discretion,
absorb ISP's customers into AFN's system or may sell
ISP's customer list to another ISP. Any proceeds received
by AFN for the sale of the customer list, shall be
considered liquidated damages for the costs AFN incurs in
promoting and consummating the sale and transfer of the
customers to another provider.
9. ASSIGNMENT OR TRANSFER. ISP shall not sell, assign,
or in any other manner transfer its dghts under this
agreement or any interest of ISP in this agreement without
the prior consent of AFN, which consent shall not be
unreasonably withheld or delayed.
10. LIMITATION OF LIABILITY. AFN SHALL NOT BE
LIABLE TO ISP FOR ANY INCIDENTAL, INDIRECT,
SPECIAL, OR CONSEQUENTIAl. DAMAGES OF ANY
KIND INCLUDING BUT NOT LIMITED TO ANY LOSS OF
USE, LOSS OF BUSINESS, OR LOSS OF PROFIT.
REMEDIES UNDER THIS AGREEMENT ARE
EXCLUSIVE AND LIMITED TO THOSE EXPRESSLY
DESCRIBED IN THIS AGREEMENT.
11. NO WARRANTIES. THERE AI~E NO WARRANTIES,
EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED
TO WARRANTIES OF MERCHANTABILITY AND
2 - ISP Cooperative Agreement (G:~legal~PAUL~telecommunications\Forrns~AFN ISP k 2(X)4.doc)(5/02)
FITNESS FOR A PARTICULAR PURPOSE OR FOR
ANY INFORMATION, SERVICE OR MERCHANDISE
PROVIDED THROUGH THE INTERNET, OR ANY
TRANSACTIONS CONDUCTED ON THE INTERNET.
lSP UNDERSTANDS AND AGREES FURTHER THAT.
THE INTERNET CONTAINS VIRUSES, WORMS,
TROJAN HORSES AND OTHER HARMFUL
COMPONENTS, UNEDITED MATERIALS SOME OF
WHICH ARE SEXUALLY EXPLICIT OR MAY BE
OFFENSIVE TO SOME PEOPLE. ISP AND ISP'S
CUSTOMERS ACCESS SUCH COMPONENTS AND
MATERIALS AT ISP'S OWN RISK. AFN HAS NO
CONTROL OVER AND ACCEPTS NO LIABILITY OR
RESPONSIBILITY WHATSOEVER FOR SUCH
COMPONENTS OR MATERIALS.
'J2. 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; stdkes or other
labor unrest; power failures; nuclear or other dvil or
military emergencies; acts of legislative, judicial, executive
or administrative authorities; or any other circumstances
which are not within its reasonable control.
13. INDEYNIFICATION. ISP shall hold harmless, defend and
indemnify AFN, its elected or appointed officials, officers,
employees and agents, from all claims, damages, losses,
liability and expenses adsing from the negligent or other
tortious acts or omissions of ISP and its officers, agents,
employees and independent contractors.
14. ATTORNEY FEES. If this agreement is placed in the
hands of an attorney due to a default in the payment or
performance of any of its terms, the defaulting pady shall
pay, immediately upon demand, the other party's actual
fees and expenses together with reasonable attomey
fees, even tho, ul~lh no suit or action.is filed.
15. SPEClAL_~p'/~VISlO~.~)~_ C]~)~I.,.~G n~ot attached
Title: · [.~"~//t.,,j,'./... D~: - /'7/
Title: ~,~ ~7~.e Date: ~/
Legal ReviewS' Date:
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