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Home My WebLink About2000-128 AFN Agrmt - Laughing Place Communicationsashland fiber network 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 O/nDATA services ("Data Services') on AFN's telecommunications system through its fiber optic network (the 'network' or 'system"). Customer Name: Lazar - Laughing Place Communications, Inc. Billing Address: 165 FIRST STREET 1. SERVICES. Customer shag purchase and AFN shall provide to Customer: Installation Charge: D 10Mbps $ 750.00 n 100Mbps Sl,250,~ ~lCustom $.;;b37> 3. CHARGES. 1.1. DATA SERVmES. 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 Customers system are interconnected. 3.1. DATA SERVICES RATE From the sarvk acceptance date, Customer shall pay the rate specitilN above for each month of servile. If the service does no begin on the first day of a billing c-yale, then peyme~ts fo the first month shall be prorated on a daily basis. All suml shall be paid within 20 days alter the date of the month~ billing for services (the 'due data'). 1.2. blSTALLATION SERVICES. Installation services consist of coordinating with Customer the necessary engineering, site survey, system configuration andother 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 widng, switches, routere, cabinets or other equipment ('collectively referred to as 'AFN facilities') necessary to connect Customers fadlffies to the network. 2. TERM. This agreement will be effective upOn the date executed by AFN and shell 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 sactton'3. The rate for each eXtension pedod shall be the rote then in effect, as published by AFN, at least 45 days pdor to the termination date. 3.2. INSTALLATION SERVICES CHARGE. CuBtoll1 shall pay the installation charge specified above for th4 installation services provided by AFN which charges arm be due and payable upon execution of this agreement (th4 "due date"). 3.3. LATE PAYMENTS, DEPOSIT. Payments receive after the due date may be subject to a charge of 11,t% pe month on the unpaid balance at the discretion of AFI~ AFN may require Customer to pay a deposit in advance ( the provision of bny service. Any such deposit shall b held by AFN in a non-interest boaring account and use to satisfy (in whole or in part) any obligation of Custom~ under this agreement. 4. SERVICE LEVELS. AFN will exercise reasonable eftor to provide service on a 24-hour-a-day, 7-day.-per-wi basis. Customer understands and acknowtedges that AF does not warrant that its service wig be provided witho~ interruption. Customer also underetends that the rate and speed for this service is based on the utilization ~ burstable data bansmission methodology where the ft bandwidth contrected for is to be utilized in burete on and not continuously. AFN me]/monitor Customer bandwidth utilization in order to ensure that Customer I - ginDATA Services Agreement (p:~tele~forma%AFN Data Services Contr.wpd)(5/ transmissions are within the buramble utilization rate guidelines. These guidatines are subject to change at any time by,AFN acting in ~ sole discration, and all such changeS' shag be binding upon Customer upon wdtten notice to Customer by AFN. In the event of a service outage, AFN will have repair personnel on sits within 4 hours after receiving notification of the outage from the Customer to the assigned service number provided to customer fTOm time to tim. With respect to a failure of continuous interruption which is not excused, as Fovided in this section or otheRvise, which exceeds 24 consecttve hours in duration, and ofwhich AFN receives wffitsn notice within 48 hours of such fro'lure or interrup6on, AFN shall credit Customers account wffih respect to the affeded sswlce by an arnount equal ts one-thir6eth of credit shag be the sole and exclusive remedy, of Customer such credit shall be due, however, if the interrUl:lon is caused by reasons beyondi'm reasonable control of AFN or 5. AFN FActrrmS, Any AFN facilills installed on Customer's premises shall be and remain the property ofAFN and may be l or repisced at any time and removed at the customersofAFNwhethorornofonthesannepmrnies. No placing or maintaining its fadeies upon C~s facillesalabelindk,-a~gtheierestofAFN. 6.2. PROPER EhMRONMENT, Customer shall use reasonab~ efforts to keep the location of AFN's fadlilies in the proper environment as specled by AFN. IocWdonarisingfromCustornefsnagligence, inten6onalaot, unauthorized maintenance or other ceuss within the reesonable control of Customer, its empioyees oragents. In Customer is liable, Customer shall reirnlx~se AFN for the _les_~r_,__,of the masonable cost of repair or the actual cost of 6. RIGHTS AND OBLIGAllONS OF CUSTOIrr, R. 6.'1. INSTALLATION. Customer shall at its expense undertake all necessary preparations required to comply with AFN's installation and maintenance insthJctions. Such preparations include obtaining all necessary consents for ~e instaBatton and use of AFN facilities in the bttlng, including consents for necessary alterations to Ixtctigs~ ensuring that any floor loading limits will not be ~; providing suitable accommodations, foundations and an environment to meet the environmental specffications forAFN including all necessary trunking, conduits and cable bays;. providing suitabisalecbtcpowerandanyotherutitkm~b/AFN to install, test and or maintain AFN factlisa; I;)roviding a suitable and ssfo working envirenment for AFN's personnel, including an environment ssfo from environmental hazards; and tsking up or nmqovlng, in time to alfow N:N to carry out instaltation as scheduled, any fitted or fixed floor coverings, ceiling tiles, suspended ceilings and partition covers. 6.2, Premises Access, Customer shall provide AFN or other pemons authorized by AFN with access (on Ix~a routine and emergency basis) for the iml~meofation of all reasonable access to the Customer premises where any AFN fadlltiss are installed. AFN shaft not I~ ~ for any faults on the netWoek or any failure to perform the provisions of this agreement to the edentthatAFN, in good failh requires access, and any such faults or failure or the continuationthereofarearesultofthefallurebfCus~omerto provide access to the pisce at each loca6on where AFN faoTies are installed supporting the falling service connection. (a) Dudrig implementation, AFN wli normally cany outwork required fo install and/or repairAFN'l fadlies during its normal working hours but may, or reasonable notice, require ecc__e=_~ at ot~er ttmes. A Customers request, AFN will carp/out WOIk to bstsll AFN'! facities ouisideAFN's regularwoddng hQurs, inwhlch eve~ Customer agrees to pay overlima and any other appropda~ (b) Any out-of-pocket costs reasonabl Customer. AFN shall edv~ CustomerOfany such come 6.3. ACCEPTABLE USE POUCtS. Customer sha use polides am subject to change at any llme by AFN aclb in its sole discretion, and all such changes sh~it be bindh upon Customer upon writt~ notice to Customer by AFI~ Copies of such policies will be furnished by AFN upo request. 6..4. SYSTEM INTEGRITY. (a) Customer shall be responsible for tl* use and compatibility of equipment or software not provide by AFN. In the event that Customer uses equipment i 2 - OfnDATA Services Agreemant (p:~teleVorms%AFN Data Sewices Contr.wpd)(5/!, software not provided by AFN which impairs Customer's Date Services or the network, Customer shall nonetheisss be Itabie for payment for all service, 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 seNice obstruction and if Customer fails to do so, AFN may teke such action as it deems required to eliminate such hazard, interference or service obstruction. (b) Customer will only connect to the retwonk using industry stendard equipment which complies and is compatlbla with the sewice specfficattons set forth in applicable technical pubre:atlons. Notwithstanding the unde~aldng of Customer ih the prior sentence, if, in AFN's any other third pady is being jeopardized or is likely to be jeopardized as a result of .~e connection of any CUstomer premises equipment to the network by Customer or by any other adjvlty for which Customer is responm'bie, AFN may suspend the provision of the sewices to any connection so affected. Folk)wing remedial ac~on by CustomersatisfactoP/ to AFN, AFN will rein.la~e the service provided through that (c) AFN reserves the dght to allow or refuse to allow any make, model or software revision of cusb:n~or- provided equipment to be used es a rialvvay to any netwofk access. Customer wi coopef-~e wit AFN in setting the initial corffiguratdon for its equlpmenfs interface with the netwo~. networkfTom damage ordetodoration. Technicel instruc6ons will be obGewed by Customer. pay any amount when due, the ling of a petition in bankruptcy by or against Customer or Customer's inability to meet obitga~ons when due; or failure of Customer to cure any violation (other than failure to pay) of the provisions of this agreement wifhin 30 days notice by AFN. 7.1. CESSA'nON OF SERVICE. AFN mqy. deny Customer access to the network and cease to provide all or pad 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 activib/that AFN, in its sole discretion, reasonably believes causes a dsk that AFN may be subjected to dvil or criminal litigation, charges, or damages; or (c) would cause AFN to be denied access or to k~e services by AFN's intemet prorider. 7.2. CESSATION OF ACCESS. If AFN ceases fo provide or denies Customer access to the network pUrsuant to this section, neither Customer nor any of its custornem shall have any right (a) to access through AFN any ~ stored on the intemet. (b) to Obtain any credits ~se due to Customer. and such credits shall be ~, or (c) to access third party services, merchandise Or Information on the internet through AFN. AFN shall have no responsibir~/to notify any third-party providers of services. merchandise or information of any discontjnuance 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 tem'dnates this agreement for cause, or .if' Customer ten~_f__~_ this agreement without cause, Customer shall pay AFN a termination fee equal to the lesser of (a) the remaining charges applicable through ~e end of the scheduled term, or (b) six months of charges. 8. NO WARRANTIES. TO THE EXTENT PERMI i t ~:0 BY APPLICABLE LAW, AFN IS PROVIDING THE SERVICES AND THE SYSTEM (INCLUDING BUT NOT UlVidr...O TO THE AFN FACILITIES AN.D ANY ACCESS TO THE NE'I1VORK) AS IS AND WITH ALL FAULll, AND HEREBY DISCLAIMSALLOTHER 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 UMITED TO ANY (IF ANY) NMD ,N-L IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FORA PARTICULAR PURPOSE, OF LACK OF VIRUSES. LACK OF NEGLIGENCE OR LACK OF WORKMANLIKE EFFORT. AFN MAKES NO WARRANTY: (a) OF TITLE, QUIE'f ENJOYMENT OR LACK OF INFRI~NT WrrH RESPECT TO THE SYSTEM OR S~; (b)' THAI THE SYSTEM OR SERVICES ARE :,YEAR 200~ COMPLIANT; AND (e) THAT THE OPERATION OF THE SYSTEM OR SERVICE WILL BE UNINTERRUPTED OR ERROR FREE. 9. EXCLUSION OF CERTAIN DAMAGES' LIMITATION OI LIABILITY A NO REMEDY' EXCLUSIVE ~;. TO THE MAXIMUM EXTENT PER~h I b:D ByAPpUCABLE LAW IN NO EVENT WILL AFN BE LIABLE UNDER AN'I CONTRACT. NEGLIGENCE. STRICT LIABILITY OF OTHER THEORY FOR ANY SPECIAL INDIREC'I INCIDENTAL OR CONSEQUENTIAL DAMAGE'~ ( NCLUDING BUT NOT LIMITED TO D.AMN~ES FOR LOS~ OF PROFITS OR CONFIDENTIAL' OR OTHEI INFORMATION, FOR BUSINESS INTERRUPTION, FOI PERSONAL INJURY, FOR LOSS OF pRIVACY, FOI 3 - rib!DATA Services Agreement (p:%tele~forms%AFN Data ServIces Contr.wpd)(SJ~ FAILURE TO MEET ANY DUTY INCLUDING OF GOOD FAITH OR OF REASONABLE CARE, FOR NEGLIGENCE, AND FOR ANY OTHER PECUNIARY OR OTHER LOSS WHATSOEVER) ARISII;IG OUT OF OR IN ANY WAY RELATED TO ANY BREACH BY AFN OF THIS AGREEMENT. TO THE PROVISION OR USE OF OR INABIUTY 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 UMITATION ANY UASIUTY OF AFN FOR ANY DAMAGES OF ANY NATURE WHATSOEVER, INCLUDING WITHOUT UMITATION DIRECT OR ACTUAL DAMAGES, SHALL BE UMITED TO THE DIRECT GadV~GES INCURRED BY CUSTOMER IN ACTUAL AND REASONABLE REUANCE 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 PRO.VISION OF CREDITS TO CUSTOMER'S ACCOUNT AS SPECIRCALLY PROVIDED IN SECTION 4, THE RIGHTS AND REMIjDIES GRANTED TO CUSTOMER UNDER THIS SECTION 9 CONSTTTt/TE 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 LIN~LITY FOR THE NEGLIGENCE, PRODIJCTS, SERVICES OR WF, BSrrES OF CUSTOMER; OF AFRUATES; OF DEVELOPERS OR CONSULTANTS IDENTIFIED OR REFERRED TO CUSTOMER SYAFN; 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 Storins; earthquakes or other natural occurrences; strikes or other labor unrest power failure; nuclear or other civil or military emergencies; acts of legislative, judicial, executive or administrative authorities; or any other cimumstances which are not within its raasonable control. 11.8EVERABlUTY. In the event that a court, govemrnentel agency. or regulatory body with proper']ui'i~:li~)n determines that this agreement or a provision of this agreement is unlawful, this agreement, or that provislofi of the agreement to the e~tent it is unlawful, shall terminate. If a provision of this agreement is terminated but the parties can lagally, comrnemially and practk:ably continue without' the terminated provision, the remairl,der of this agreement shall continue in effect. 12. GENERAL PROVISIONS..Failure or delay by either pit/ to exemtse any dght oi' 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 herein and superaedes any prior agreements or u.nderstandings. 13. SPECIAL PROVISIONS. AFN: Da e: ?"3 -oo t AFN Legal Review By: Date: 4 - {lienDATA Services Agreement (p:%tele~forms%AFN Data Services Contr.wlm')(5