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HomeMy WebLinkAbout2000-081 AFN Agrmt - Yahoo oshland fiber networ DA IA SERVICES AGREEMENT ~ ~ Agreement be~een the City of Ashland by and through its Depa~ment of Electric Utilities, Ashland Fiber Ne~ork Division ("AFN") and Customer named below for o{nDATA se~ices ('"Data Se~ices") on AFN's telecommunications system through its fiber optic ne~ork (the "ne~ork" or "system"). Billing Address: Premises Address (if different): Data Services Rate: ~/~0 lOMbps + 100Mbps + IP addresses = $~oG, /month IP addresses = $ /month 1. 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 Customer's premises described above. The point of delivery is that location where the network and Customer's system are intemonnected. 3.1. DATA SERVICES F~ATE. From the servi¢ acceptance date, Customer shall pay the rate specifie( above for each month of service. If the service does no begin on the first day of a billing cycle, then payments fo the first month shall be prorated on a daily basis. All sum.' shalt be paid within 20 days after the date of the monthl~ 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, routers, cabinets or other equipment ("collectively referred to as "AFN facilities") necessary to con nect Customer's 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 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. Custom~ shall pay the installation charge specified above for th( installation services provided by AFN which charges shal be due and payable upon execution of this agreement (thc "due date"). 3.3. LATE PAYMENTS, DEPOSIT. Payments receive after the due date may be subject to a charge of '1 ~% pe month on the unpaid balance at the discretion of AFN AFN may require Customer to pay a deposit in advance o the provision of any service. Any such deposit shall bt held by AFN in a non-interest bearing account and use( to satisfy (in whole or in part) any obligation of Custome under this agreement. 4. SERVICE LEVELS. AFN will exercise reasonable effort: to provide service on a 24-hour-a-day, 7-day-per-weel basis. Customer understands and acknowledges that AFl' does not warrant that its service will be provided withou interruption. Customer also understands that the rate~ and speed for this service is based on the utilization o burstable data transmission methodology where the ful bandwidth contracted for is to be utilized in bursts onl! and not continuously AFN may monitor Customerh bandwidth utilization in order to ensure that Customer'.' 1 - o¢nDATA Services Agreement . L '~ (p:\tele\forms~AFN Data Services Contr.wpd)(5/9 CITY OF ASHLAND DISCONNECT SERVICE ORDER ACCOL~T : 005-001610-** -> 649 A 8T TYPE : C ELECTRIC:C01 TAX:TAX WATER~C-W .75" SEWER:C-SEWER SERVICE DATE 01/51/200 STORM DRN;C'-I METER ELECT ; 15~6~ METER WATER : 16148~7 CUSTOMER ~ 024525 -> STARSEED, MAI~.ING ADDRESS YAHOO ATTN: CHRISTINA' GARCIA 5420 CENTRAL EXPRESS WY SANTA CLARA, CA 95051 READING READING INC, WEBRING PHONE : 54 ~ -482-3000 and : 408-528-7872 IDENTIFICATION : KATHLEEN WEAVER and I hereby ! GNAT URE agree to abide by the City o~ Ashlmnd regulations summarized on ~he r-everse side. D~tail available on request. DATE : 01~1~2~01 08:51:57 A~ COMMENTS ctsh~nd fiber network SERVICES AGREEMENT Customer Name: Billing Address: Premises AddreSs (if different): Agreement between the City of Ashland by and thro. ush its Department of Electric Ut~ities, As~,land Fiber Network Division C'AFN"] and Customer named below for I:Hr~DATA services ("Data Services ) on AFN s telecommunications system through its fiber optic network (the "network' dr 'system'). ' J Oats Services Rate: JED10MI~+ .~.~' IPaddrasses =:~c~. /mOnth ~E] 100Mbpe + IP addresses In,nth 1. SERV',CF.S. Customer shall purchase and AFN shall provide tO Customer. 1.1. DATA SERVI,C_ES. Data Services i:~rmit access by Customer to AFN s telecommunications system at the poipt of deliver/located in the Customer's pram .i~es described above. The point of deliver/ is that location where the network and Customer's system ara interconnected. 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 ftmt 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'). t.2. INSTALLATION SERVlCE~. Installation set consist of coordinating with Customer the ne(ee engineering, site survey, system configuration and'c services _nec~,__a___sery to provide Customer Data Servl These services shall be provided up to the date the1 service fl~ting is completed based on AFN's custor testing procedures and the service is avallabts t~ Cuatom~r ('the service acceptance date'). In eddi AFN will install such widng, switches, routers, cabins other equipment ('collectively referred to as facilities') necessary to connect Customer's facilities t network. caS ~er es. ar/ the ~ or ,FN the 2. TE~4. This agreement will be effective upon the ~late 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 tol the termination data, this agreement shall be extended for successive one year periods on the same terms and conditions except for the rate specified in section' 3.~he rata for each extension pedod shall be the rate thqn in effect, as published by AFN, at least 45 days prior te the termination data. 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, 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 depoait in advance of the provision of any service. Any such deposit shall be held by AFN in a non-intarast beefing 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 buretabte data 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 - ¢I~IDATA Services Agreement (p:~tele~'orm~AFN Data Services Contr.wpdX5/99) transmissions am within the burstable utilization rate guidelines. These guidelines ara 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 pemonnel 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 Customer's accountwith reeleCt to the affectnd service by en amount equal to one-thirtle~ of the recurring monlhly charge for He service for each 24-hour period during which the failure or interrup~on 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 reesonable control of AFN or for reasons related to scheduled netwod( maintenance. 5. AFN FAQLm~. Any AFN fa~Faies installed on Customer's premises shail beand remain the property of AFN and may placing or maintaining its fsclll~s upon Cusfon~s premiEss. AFN shall'be antitled, at any time, to affix to AFN 6.t, RBIOVAI- Customer will use reasonable e~ removed by any pemon, other ~ AFN or without AFN's reesonabie efforle to keep the ~ ~N's ~ in 5.3.~ Cus~~d~ ~m I~b~ ~~N's~ any ~~c~s~,~ ~ u~ ~a~ ~ ~ ~ ~ ~e ~~C~, b ~ ~ In ~ ~~lr~e~o ~ 6.t. INm'ALLA~ON. 'Customer shall at ils exl~ense undertake all n _ __~'Jessery preparations raquired to compl~ with AFN's installation and maintenance instructions. Such prepera~ons include obtaining all necessary consents for the installetfcm and use of AFN facititles in the building, including consents for necessary alterations to buildings; ensuring that any floor loading limits will not be exceedeci; providing suitable accommodations, foundations and an environment to rneet the environmental specifications forAFN including all necasse~ 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'a personnel, including an environment safe fi'om environmental hm'~rds; and taking up or removing, in time to allow AFN to carry out installation es scheduled, any fitted or fixed floor coverings, ceiling ti~Es, suspended ceilings and parliiton covers. 6.2. Premises AccEss. Customer shall provideAFN or other pemons authorized by AFN with access (on both a routine and emergency basis) for the implemer, La~m of all service acceptance date, Customer will provide AFN reasonable access to the Customer premises where any AFN facilities am installed. AFN shall not be responsible for any faults on the network or any failure to pedorm the provisions of this agreement to the extent that AFN, in good faith, requires __acce~__s, and any such faults or failures or the continuation thereof are a result of the faiture of Customer fo provide access to the plase at each Ioca6on where AFN facilities are installed supporling the falling sewlse or connection. (a) Dudng implementation, AFN witl non'nelly cany out wo~ required to install and/or repair AFN's facilities during its normal working houm but may, on reasonable notice, require access at other tirnes. At Customers request, AFN will carry out work to Irmtall AFN's facgitles outside AFN's regular working houm, in whk:h event Customer agrees to pay overlime and any other approp~afe 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 acceptabie use policies. The sccet~abte use policias ara subject to change at any time by AFN sc0ng in its sole discretion, and all such changes shall be binding upon ~ upon written notice to Customer by AFN. Copies of such policies will be furnished by AFN upon 6.4. SYSTE~ INTEGRYrY, (a) Customer shall be responsible for the use and compatibility of equipment or software no~ provided. by AFN. In the event that Customer uses equipment or (p:~tele~forms~AFN Data Sewices Contr.wpdXS/99) 2 - ¢~rIDATA Services Agreement software not provided by AFN which impairs Customer's Data Sewtcas or the ~rk, Cusi~er shall nonethelas~ be liable for payment for all service, including without ~ any sof~vam, provided by AFN; Upon notice from AFN ~hat any equipment or sof(ware not provided by AFN is causir~ or is likely to cause any hazard, interrerenca, or service obsimction, Customer shall immediately eliminate' the likelihood or hazard, interference, or service obetm~k~n Pnd 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 indusay standard equipment which compiles and is compatible wit~ bhe sewice speciflcal~ns set fortt in applicable tac~nk=al publications. No~vithstanding the undertaking of Customer inlhe prior sentence, if, in AFN's reasonable opinion, ~e tachn'~al integrity of the network or any other third party is being jeopardized or is likely te be jeopardized as a result of the connection of any Custarner otter activity for which Customer is responsible, AFN ,may (c) AFN reservasthe right to allowor rdfuse to allow any make, model or software revision of customer- provided equiprnent to be used es a gateway to any network access. Cuetomorwill coopamtewith AFN in seltlng the i~itial (d) AFN may from time to time issue 7. TEmm~'no~. Either party may terminate this agreement for cause, provided written no~::e is given the oth~ i~arty specifying the cause for terr~ation and requebting conection within 10 days for failure to pay a sum due, or within 30 days for any other cause, and such cause i~ not corrected within the applicable padod. Causo is any ma~erial breach of the terms ofthis agreement, including the failqre to pay any amount when due, the filing of a petYa'qn in bankmptoy by or against Customer or Customer's inel~,ty, to meet ob#gations when due; or failure of Customer~r to Icuto ,cure any violation (olher than failure to pay) of the proviskms of this agreement within 30 days no[ce by AFN. 7.'L CESSATION OF ardw~cE. AFN mqy. deny Customer ~ to the network and cease to provide~all or part of any sentices dsechbed in this agreement w~ut notice if ~ (a) violates any provision of appi~le accaptebte use policies; (b) ~ In any condtl~ct or ac~v#y that AFN, in ~ sole di~-~, reasonably beleves 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. 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 matmtels 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 thfonmation 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 selvicas pursuant tO this section, nor any responsibility for any consequences resulting f~om 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 PERMI I ~ eD BY APPLICABLE LAW~ APN IS PROVIDING THE SERVICES AND THE SYSTEM (INCLUDING BUT NOT EMITED TO THE AFN FACILITIES AND ANY ACCESS TO THE NETWORK) AS IS AND WITH ALL FAULTS, AND HEREBY DISCLAIMSALL OTHER WARRANTIES, 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 IMPMED WARRANTIES OF MERCHANTABILFTY, FITNESS FOR A PARTICULAR PURPOSE, OF LACK OF VIRUSES, LACK OF NEGLIGENCE OR LACK OF WORKMANUKE 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' COMPMANT; AND (c) THAT THE OPERATION OF THE SYSTEM OR SERVICE WILL BE UNINTERRUPTED OR ERROR FREE. 9. EXCLUSION OF CERTAIN DAMAGES; I.IMITATION OF LIABIUTYAND REMEDY; EXCLUSIVE REI~DY;TO THE 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 MMITED TO DAMAGES FOR LOSS OF PROFITS OR CONFIDENTIAL OR OTHER INFORMATION, FOR BUSINESS INTERRUPTION, FOR PERSONAL INJURY, FOR LOSS OF PRIVACY, FOR 3 - eI~rlDATA 8mvices Agreement (p:Uele~forms~AFN Data Sewice~ Contr.wpdXS/Sg) 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 INABIMTY TO USE THE SYSTEM OR SERVICES OR OTHERWISE WITH RESPECT TO ANY SUBJI~CT MATTER OF THIS AGREEMENT, EVEN IF AFN NAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, AFN'S TOTAL LIABILITY TO CUSTOMER UNDER _T~I~ IS AGREEMENT AND THE TRANSACTIONS CONTEMPLATED HEREBY, INCLUDING WITHC~UT LIMITATION ANY EABIUTY OF AFN FOR ANY DAMAGES OF ~ NATURE WHATSOEVER, INCLUDING WITHOUT UMITATION DIRECT OR ACTUAL DAMAGES, SHALL BE UMITED TO THE DIRECT DAMAGES INCURRED BY CUSTOMER IN ACTUALAND REASONabLE RELI,N~.,E ON THE OR SER S, WH,C. SHALL NOT, IN THE AGGREGATE, EXCEED 100% OF THE AMOUNT NAVING ACTUALLY BEEN PAID BY CUSTOMER TO AFN IN THE ~J~cLVE MONTH PER~OD IMMEDIATELY PRECEDING THE DATE ON WHICH 'IrHE BREACH GMNG RISE TO THE D,~M~GES OCCURRED. EXCEPT FOR THE PROVISION OF CREDITS CUSTOMER'S ACCOUNT AS SPECIFICALLY PROVll IN SECTION 4, THE RIGHTS AND REMEDIES GRAN TO CUSTOMER UNDER THIS SECTION 9 CONSTIT CUSTOMER'S SOLE AND EXCLUSIVE REM AGNNST AFN, ITS AGENTS, OFFICIALS , EMPLOYEES FOR ~ AND ALL CLAIMS ARISII~ CONNECTION W1TH THE SYSTEM OR SERVI( INCLUDING BUT NOT LIMITED TO CLAIMS ARE UNDER STATUTORY OR COMMON LAW OTHERWISE. TO ED ED rTE DY ND IN ES, NG OR THERE N~E NO THIRD PARTY BENEFICIARIES OF THIS AGREEMENT. CUSTOMER AGREES THAT AFN SI-~ALL HAVE NO UABILITY FOR THE NEGUGF_I~CE, PRODUCTS, SERVICES OR WEBSITES OF CUSTOMER; OF AFFILIATES;, OF DEVELOPERS OR CONSULTANTS IDENTIFIED OR REFERRED TO CUSTOMER BY AFN~ OR OF ANY oTI.IER THIRD PARTY, INCLUDING BUT HOT LIMITED TO LIABILITY FOR THE CONTENT, QUA~.ITY AND ACCURACY OF THE FOREGOING WHICH ~,RE ACCESSIBLE BY USE OF THE SYSTEM OR SERVICES OF AFN. 10. UNCONTROLLABLE CONDITIONS. Neither pan~y sh~ll be deemed In violation of this agreement if it is prevented fi'om performing any of the obligations under'this agreement by reason of severe weather and stdn'ns; earthquakes or other natural occ~rrencee; strikes or ~her labor unrest; power failures; nuclear or other civil or military eme~anclee; acts of leglsfative, jud iclal, execl~tlv · or administrative authorities; or any other circumstaflces which are not within its reasonable control. 11. SEVERAalLI~Y. In the event that a court, govemrnental 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 remairtder of this agreement shall continue in effect. 12. GENERAL PROWSlOaS. 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 r~paCt to Sewice provided herein and supamedes any prior agreements or understandings. 13. SPECIAL PROVISIONS. Customer: Date: -~/I ,/0 ~ ~ By: TiUe: Date: AFN: Title: Date: AFN Legal Review By: Date:_ . 4 - J~rlDATA Services Agreement (p:uele&forrns~AFN Data Servicm~ C.,m~.wpdXS/99)