HomeMy WebLinkAbout2000-094 AFN Agrmt-Edelmanashland j~iber network
afnDA 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 a[nDATA services ("Data Services") on AFN's telecommunications system through
its fiber optic network (the "network" or "system").
Customer Name:
Billing Address:
Premises Address (if different):
Data Services Rate:
~ 10Mbps + //~.~
'[~ 100Mbps +
IP addresses = $~/month
IP addresses = $ /month
Installation Charge: ~10Mbps $ 750.00
rE] 100Mbps $1,250.00
[] Custom $
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 interconnected.
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 connect Customer's facilities to the network
2. TERr,~. This agreen~nt 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 pady 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
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
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. CHARGES.
3.1. DATA SERVICES RATE. 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")
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 1Y~% 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.
Customer's bandwidth utilization in order to ensure that
Customer's 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
1 - &frlDATA Services Agreement (p \tele\forms~AFN DATA SERVICES CONTR)(5/99)
From:
To:
Date:
Subject:
Joel Barker
Heather klima, Michael Ainsworth, Richard Holbo,...
Fri, Jan 26, 2001 10:06 AM
Scott Adelman/Freeway enterprises
I believe that this is the last of the Red Hot Joel Barker Sales Rep Data Customers. Gary Nelson, our
contact at Scott Adelman (DBA Freeway associates), called me to follow up on the agreement that we
made upon the establishment of their data connection.
We agreed to move them over to a cable modem service as soon as it was available in their area. Coax
service is now available in that node, 25a. A single span of hardline work needs to be installed: Patrick
Moll will have Hunter's crew do that early next week.
They have a coax install set for Thursday (February 1), 1:30 pm. the physical switch over should be fluid,
provided they get an ISP and that ISP does their part. We need to make sure that the billing is properly
handled.
Heather, can you contact Russ and make sure that we are all occupying the same leaf?
It is easy to be a holy man
on top of a mountain
....... Joel Barker
01=/26~2001~,~
ashlood f~b~r ~
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 ahIDATA services (*Datd Services") on AFN's telecommunications system through
its fiber optic network (the "network' or *systern").
Customer Name: ~Co'T'r-- ~ ~=~wl. ~ ~
Billing Address: 5OO,,~'- ~-'~( ? ~ ~
Premises Address (if different):
do.
Data Services Rate:
lOMbps+ ~lPaddmsses =$~ /month
lOOMbpa + IP eddre$~s = $ /month
'111tstallati°nCharge:~110(Mbps $ 750.00
30Mbps $1,250.00
r~ Custom $
1. SERWCES. Customer shall purchase and AFN shall provide to
Customer:
1.1. DATA SE~WCSe. Data Services permit access by
Customer to AFN's telecommunications system at the point of
delNery located in the Customer's premises described above.
The point of delivery is that location where the network and
Customer's system ara interconnected.
1.2. INSTALLATION SERVICE~. 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, routam, cabinets
or other equipment ("collectively roferred to as "AFN facilities")
necessary to connect Customer's facilities to the network.
2. TERM. T agrae nt 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
4. SERVICE LEVELS. AFN will exercise raasonable efforts to
provide service on a 24-hour-a-day, 7-day-por-week basis.
Customer understands and acknowledges that AFN does not
wan'ant 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
and conditions except for the rate specified in section 3. The rate
for each extension pedod shall be the rate then in effect, as
published by AFN, at least 45 days prior to the termination date.
3. CHARGEa.
3.1. DATA SERVICES RAllF, From the sewice acceptance
date, Customer shall pay the rate specified above for each
month of service, tf the service does not begin on the first day of
a billing cycle, than 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").
3.2. INSTALLAllOH SERVICF..8 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. L.ATE PAYMENTS, DEPOSIT. Payments received after
the due date may be subject to a charge of 1~% per month on
the unpaid balance at the discration of AFN. AFN may requira
Customer to pay a deposit in advance of the provision of any
service. Any such deposit shall be held by AFN in a non-.interast
bearing account and used to satisfy (in whole or in part) any
obligation of Customer under this agreement.
Customer's bandwidth utilization in order to ensure that
Customer's transmissions are within the buratabts 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 rapair personnel
1 - afnDATA Services Agreement (p:~isVofmsVkFN DATA SERVICES CONTR)(5/99)
· 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, aa provided in this
section or othenvise, 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
account with respect to the affected service by an amount equal
to one-thirtieth of the recuwing monthly charge for the service for
each 24-hour period 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 maintenance.
5. AFN FAC~U'nES. Any AFN facilities installed on Customer's
premises shall be and remain the property 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 customers of AFN
whether or not on the sem~ premisse. 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 facilitles a label indicating the interest of
AFN.
6.1. REMOVAL. Cu~stomer will use reasonable efforts to
ensure that AFN facilities are not removed or caused to be
removed by any person, ot~er than AFN or without AFN's pdor
written consent. ~
5.2. PROPER ERVIRoNMENT. Cust~,_mer shall use
reasonable efforts to keep ~be location of AFN s facilities in the
proper environment as specified by AFN.
5.3. D,~,UAOE. Cu
and caution to protect J
vandalism and other potent
for any loss or damage to /
from Customer's neglige
maintenance or other cau
Customer, its employees o
damage to AFN's faciliti
Customer shall reimburse,
cost of repair or the actual
~tomer agrees to exercise due care
,FN's facilities from the weather,
al problems. Customer shall be liable
FN's facilities at any location arising
ica, intentional act, unauthorized
m within the reasonable control of
· agents. In the event of any loss or
~s for which Customer is liable,
~FN for the lesser of the reasonable
:ost of replacement.
6. RIGHT~ AND OBLIGATIONS OF CUSTO~R.
6.t. INSTALLA11OI~· CustOmer shall at its expense
undertake all necessary p~'eparations required to comply with
AFN's installation and rnalntenance instructions. Such
preparations include obtail~ing all necessary consents for the
(a) Custqmer shall be responsible for the use
and compatibility of equipment or software not provided by AFN.
In the event that Customer uses equipment or software not
provided by AFN which iml:~airs Customer's Data Services or the
network, Customer shall no~leiase be liable for payment for all
service, including without limitation any software, provided by
AFN. Upon notice from AFN that any equipment or soft'wars not
provided by AFN ia 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 so, AFN may take such
action as it deems required to eliminate such hazard,
installation and use of AFN facilities in the building, including
consents for necessary alterations to buildings; ensuring 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 install, 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 installation as scheduled, any fitted or
fixed floor coverings, ceiling tiles, suspended ceilings and
partition covers.
6.2. Pmml~ Accaee. 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 date, Customer will provide AFN reasonable access
to the Customer promises 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 ara a result of the failure of
Customer to provide access to the place at each location where
AFN facilities ara installed supporting the failing service or
connection.
(a) During implementation, AFN will normally
carry out work required to install and/or repair AFN's facilities
during its normal working hours but may, on reasonable notice,
require access at other times. At Customer's request, AFN will
cany out work to install AFN's facilities outside AFN's regular
won~ing 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 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 POUClES. Customer 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 fumished by AFN upon request.
6.4.~S~MtN~ORITY.
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 forth in applicable
technical publications. Notwithstanding the undertaking of
Customer in the prior sentence, if, in AFN's reasonable opinion,
the technical integ~y 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 activity for which Customer
2 - a~DATA Services Aglreement (p:~tele~orms~AFN DATA SERVICES CONTR)(5/99)
is responsible, AFN may suspend the provision 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 possible.
(c) AFN reserves the dght 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
configuration for its equipment's interface with the network.
(d) AFN may from time to time issue t~chnical
instructions on the use of the network to ensure the proper
functioning of the services or the protection of the network from
damage or deledoration. Technical instructions 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 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 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
Customer's inability to meet obligations when due; or failure of
Customer to cure any violation (other than failure to pay) of the
provisions of this agreement within 30 days notice by AFN.
7.1. CESSATION OF SERVICE. AFN may 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 applicable acceptable use policies;
(b) engages in any conduct or activity that AFN, in its sole
discretion, reasonably believes 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 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 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 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. TERM~N~'nON 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 WITH 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) 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: (e) 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; EXCLUSIVE REMEDY. TO THE
MAXIMUM EXTENT PERMII'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 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 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 STATUTORY OR 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
3 - a~DATA Services Agreement
(p:~fale~forms~,~FN DATA SERVICES CONTR)(5/99)
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. Uk~COWmOU.AaLE CON~mOI~S. 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; pO~er failures; nuclear or other civil
or military emergencies; acts of legislative, judicial, executive or
administrative authorities; or any other circumstances which ara
not within its reasonable control.
11. SEVERABKJTY. In the event that a court, govemrnental agency,
or regulatory body with proper jurisdiction datermine~ 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.
t2. GENERAL PROVISIOI~. Failure or delay by either party to
exercise any right or privilege under this agreement will nat
operate as a waiver of such rigM or privilege. This agreement
may be assigned by Customer only with the consent of AFN.
This agreement constitutes the entire underafanding between
Customer and AFN with respect to Sewice provided herein and
supersedes any prior agreements or undemtandings.
t3. SPECL~. PROVISIONS.
By:.
Title:.
Data:_
AFN:
By:.
Title:
Date:.
AFN Legal Review By: Date:
4 - a~DATA Services Agreement
(p:tt®le~om~AFN DATA SERVICES CONTR)(5/99)