HomeMy WebLinkAbout2000-080 AFN Agrmt - Enfinetashland fiber network
SERVICES AGREEMENT
Agreement between the City of Ashland by and through its D partment of Electric Utilities, Ashland Fiber Network
Division ("AFN') and Customer named below for tlfrlDATA s ,rvices ("Date Services") on AFN's telecommunications
system through its fiber optic network (the "network" or "syst{ n').
Customer name: Enfinet - Doug Allen
Date Services Rate:
[~'t0Mbps +/(,.
D 100Mbps + __
~ IP addresses = $~,.~//month
IP addresses = $ /month
lnstallation Charge: [~Mbps $ 750.00
rn 100Mbps $1,250.00
~ [] Custom $
1. SERVICES. Customer shall pumhase and AFN shall
provide to Customen
1.1. DATA SERVICES. Date Sewices permit
access by Customer to AFN's telecommunications system
at the point of delivery located in the Custorner's premises
described above. The point of delivery is that location
where the network and Customer's system are
interconnected.
3. CHARGES,
3.1. DATA SERVICES RATE. From the service
acceptenca date, Customer shall pay the rate spedfled
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 he prorated on a daily beeis. All sums
shall be paid within 20 days after the date of the monthly
billing for services (the 'due date').
1.2. INSTALLATION SERVICES. Instellation services
consist of coordinating with Customer the necessary
engineering, site survey, system con~guretion and other
services necessary to provide Customer Date Services.
These services shall be provided up to the data that the
service tasting is completed based on AFN's customary
testing procedures and the Service is available to the
Customer ("the service acceptance data'), In addition,
AFN will instell such wiring, switches, routars, cabinets or
other equipment ('collectively rsferred to as "AFN
facilities') necessary to connect Customers faciliUes to the
n~twork.
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 rata then in
effect, as published by AFN, at least 45 days pdor to the
termination date.
3.2. INSTALLATION SERVICES CHARGE. Customer
shall pay the instellatton charge specified above for the
installaUon services provided by AFN which charges shall
be due and payable upon execution of this'agreement (the
"due data").
3.3. LATE PAYMBNTS, DEPOSIT. Payments received
after the due date may be subject to · charge of 1 ',~% par
month on the unpaid balance at the discreUon of AFN.
AFN may require Customer to pay a dapasit 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 LBVELS. AFN will exercise reasonable efforts
to provide service on a 24-hour-..day, 7-day-per-week
basis. Customer understends and acknowledges that AFN
does not warrant that its Service will be provided without
intarruptlen. Customer also understends that the ratas
and speed for this service is based on the utilization of
burstable date 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 - tlfEIDATA Services Agreement (p:~tele~::~Tns%AFN Date Services Contr.wpdXS/99)
transmissions are within the burstable utilization rate
gaidelines. 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 wdtten
notice to Customer by AFN.
in the event of a service outage, AFN will have rel~alr
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 othemNlee, wffich
exceeds 24 consecutive hours in duration, and of which AFN
receives written notice within 48 hours of such failure or
interml~on, AFN shall credit Customer's account wiffi respect
to the affected service by an amount equal to one-thirlieffi of
the recurring monthly charge for the sewice for each 24-hour
pedod dudng which the failure or interruption continues. This
credit shall be the sole and exclusive remedy of Customer
with respect to any inteffuption or failure of the service. No
such credit shall be due, however, if the interrul:ton is
caused by reasons beyond the reasonable control of AFN or
for reasons related to scheduled network maintenance.
5. AFN FAC~LmES. Any AFN facilities installed on Customer's
premises shall be and remain the property of AFN and may
be repaired or raplaced at any time and removed at the
termination of sen/ice, 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
plating or maintaining its facilities upon Customer's
premises. AFN shall be ontjtled. at any time, to affix to AFN
tedli'des a label indicating the interest of AFN.
5.1, REMOVAL Customerwill use reasonebla efforts
toansurethatAFNfadlitiesaranotremovedorcausedtebe
removed by any parson, 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. Customeragraesto exerclee due Care
and caution to protect AFN's facilities from the weather,
vandalism and other potential problems. Customer shall ha
liable for any loss or darnage to AFN's radiities at any
location arising from Customer's negligence, intentjonal act,
unauthorized maintenance or other cause within the
reasonable conb-ol of Customer, its employees oragente. 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. INSTALLAT1ON~ 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 ofAFN fadlities in the building, including
consents for necessaW 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 instell, test and or maintain AFN faditles; providing a
suitable and safe working environment for AFN'S personnel,
including an environment safe from environmental hazards;
and taking up or removing, !n time to allow AFN to carry out
installation as scheduled: any fitted or fixed floor coverings,
ceiling tiles, suspended celings and paffition covers.
6.2. Premises Access. Customershall provideAFN
or other persons authorized by AFN with access (on both a
routine and emergency basis) for the implementerdon 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 fa'lura 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 outwork required to install and/or repalrAFN's
fadlilies 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 oveffime and any other appropriate
charges agreed between fie pardes.
(b) Any out-of-pocket costs reasonably
incurredbyAFNesaconsequenceoffiedenialofaccessby
Customer (or building owner) to any lecatjon shall be paid by
Customer. AFN shall advise Customer of any such costs on
acasebycesepasis.
6.3. ACCEPTABLE USE POUC~S. Customer shall
comply with AFN's acceptable use policies. The acceptable
use pole 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 fumished by AFN upon
requesL
6.4. SYSTEM INTEGRI1Y.
(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 - {IfnDATA Services Agreement (p:~leVorms~AFN Data Services Contr.wpd)(5/g9)
software not provided by AFN which impairs Customers
· I~lataServicesorthenetwork, Custornershall nonethelessbe
liable for payment for all service, including wiffiout limitation
any software, provided by AFN. Upon notk:e fTOm 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, interfamnce, 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
(b) Customer will only connect to the
network using industry standard equipment which complies
and is compatible with the sewice spedficatjons set forth in
apfficable 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 natwork by Customer or by any
other adivity for which Customer is responsible, AFN may
suspend the provision of the services to any connection so
afrectsd. Following remedial action by Customer setisfadoW
to AFN, AFN will reinstate the service provided through that
connection as soon as possible.
(c) AFN reservas the rightto allowor refuse
to allow any make, model or software revision of customer-
provided equipment to be used as a gateway to any netwo~
access. Customer will cooperate with AFN in seffing the initial
configuration for its equipment's interface with the natwork.
(d) AFN may from tim to tim issue
technical instructions on the use of the network to ansum the
proper functioning of the services or the protection of the
network from damage or deterioration. Technical instructions
will be observed by Customer.
7. TEmeNA'nON. Either party may terminate this agreement
for cause, provided written notice is given the other party
spedlying the cause for termination and requesting
corredion 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 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 Customer or Cus~omsr's inability to
meet obligations when due; or failure of Customer to cure
any violation (other than failure to pay) of the prov!sions of
this agmernent within 30 days notice by AFN.
7.1. CESSAtiON OF SERVICE. AFN mqy. 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 app4icabia
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 orto lose services by AFN's intemet 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 intemet, (b) to obtain any credits obhervAse due to
Customer, 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 raspon/bility 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 consequanses
resulting from lack of such notification.
7.3. TERMINATION FEE. If AFN terminates this
agreement for cause, or if'Customer terminates this
agreement withcut cause, Customer shag pay AFN a
termination fee equal to the lesser of (a) the remaining
charges applicable through the end of the scheduled term, or
(b) sb< months of charges.
8, NO WARRANTIES. TO THE EXTENT PERMi ~ t I:D BY
APPLICABLE LAW, AFN IS PROVIDING THE SERVICES
AND THE SYSTEM (INCLUDING BUT NOT UMITED TO
THE AFN FACILITIES AND ANY ACCESS TO THE
NETWORK) AS IS AND WITH ALL FAUL'rB, AND
HEREBY DISCLAI MS 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
UMITED 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; UMITATION OF
LIABILITYAND REMEDY; EXCLUSIVE REMB)Y. TOTHE
MAXIMUM EXTENT PERMI ~ ~ I::D BY APPLICABLE LAW,
IN NO EVENT W1LL 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 - effnDATA Services Agreement (p:%tahs%forms~AFN Data Service~ 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
MAI ~'rr.R 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 LIABIUTY OF AFN FOR ANY DAMAGES
OF ANY NATU RE V~I-IATSOEVER, 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 GMNG 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 ARENO 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 offer
labor unrest; power failures; nuclear or offer civil or
mi litan/emergencies; acts of legislative, judicial, executive
or administrative authorities; or any offer cimumstances
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 precticebly continue
without the terminated provision, the remairtder 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 fight 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.
Customer:
By:
Title:
Date:
Date:
AFN Legal Review By:
Date:
4 - {finDATA Services Agreement
(p:~tele~:orms~AFN Dat~ Senticl~ Conlr. wlxIX S/99)
Donald St. Denis
4750 Londonberry Drive
Santa Rosa, CA 95403
Ashland Fiber Network
Attention: Richard Holbo
90 North Mountain Avenue
Ashland, Oregon 97520
Bringing Consumer Privacy to the World Wide Web
August 11, 2000
Re: 10MB Service Disconnection
Dear Mr. Holbo:
We here at En~net, Inc. would like Ashland Fiber Network to disconnect 10MB service and
equipment at our business location of 249 Wimer St., #5, Ashland, Oregon. We have not been able to
secure the level of financing required to maintain this connection and would like you to bill us for the
disconnection service charge and remove your equipment from the premises by August 26, 2000.
Please find enclosed the key to the apartmeat, for your staff's convenient access to the apartment.
Please feel free to enter the apartment and disconnect your equipment and remove the fiber run from the
inside of the apartment. Our landlord has been informed and consents to your access to the apartment until
August 31, 2000. We leave it to your best judgment about the run of fiber outside the building. It is in the
back of the building, so that if you choose to terminate it into a box for future connections, there is no
problem. The clay-like substance you use to seal around the hole will be fine for sealing the outside hole,
and I will take care of the inside hole, assuming the equipment is removed by August 26, 2000.
Thank you for all your help and if our financial picture changes in the future we hope to be able to
do business with you again.
Sincerely,
Donald St. Denis
Director of Advanced Technology
En~net, Inc.
249 Wimer Street, Suite #5, Ashland, OR 97520, Phone: 707/575-1557
Email: don_st_denis@softhome.net