HomeMy WebLinkAbout2000-166 AFN Agrmt - CRGServices Agreement
Agreement between the City of Ashland by and through its Depadment of Electric Utilities, Ashland
Fiber Network Division ("AFN') and Customer named below for ofnDATA services ("Data
Services") on AFN's telecommunications system through its fiber optic network (the "network" or"
system").
Customer Name: CRG - COMPRESSION RESEARCH GROUP
Billing Address: 320 E. MAIN STREET
Premises Address (if different):
.. IP addresses=
IP addresses =
Installation Charge:]~10Mbps $ 750.00 [] 100Mbps $1,250.00
[] Custom $.
Data Services Rate:
///~m 10Mbps + I{'~
onth
[] 100Mbps + __
/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 delive~j 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 Custo
facilities to the network.
2. Term. This agreement will be effective upon
date executed by AFN and shall continue for one )
unless sooner terminated as provided in
agreement. In the event written notice is not give
either party to terminate this agreement at leas
days prior to the termination date, this agree
shall be extended for successive one year period
the same terms and conditions except for the
specified in section 3. The rate for each exten
period shall be the rate then in effect, as publishe
AFN, at least 45 days prior to the termination date
3. Charges.
3.1. Data Services Rate. From the se~
acceptance date, Customer shall pay the
specified above for each month of service.
service does not begin on the first day of a
cycle, then payments for the first month shal
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prorated on a dally 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 ^FN 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 11/2% 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 satis~ (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 burstable
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 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 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,
^FN shall credit Customer's account with respect to
the affected service by an amount equal to
one-thirtieth of the recurring monthly charge for the
service for each 24-hour period during which
failure or interruption continues. This credit shal
the sole and exclusive remedy of Customer
respect to any interruption or failure of the service
such credit shall be due, however, if the interrupti
caused by reasons beyond the reasonable contr
AFN or for reasons related to scheduled net
maintenance.
5. AFN Facilities. Any AFN facilities installed
Customer's premises shall be and remain
property of AFN and may be repaired or replace
any time and removed at the termination of set
and may be used to supply other customers of
whether or not on the same premises. No re
other charge shall be made by Customer on AF
placing or maintaining its facilities upon Custo
premises. AFN shall be entitled, at any time, to aff
AFN facilities a label indicating the interest of AFN
5.1. Removal. Customer will use reason
efforts to ensure that AFN facilities are not rem
or caused to be removed by any person, other
AFN or without AFN's prior written consent.
5.2. Proper Environment. Customer
use reasonable efforts to keep the location of A
facilities in the proper environment as specifie
AFN.
5.3. Damage. Customer agrees to exer
due care and caution to protect AFN's facilities f
the weather, vandalism and other potential probl
Customer shall be liable for any loss or damag
AFN's facilities at any location arising f
Customer's negligence, intentional act, unauthor
maintenance or other cause within the reason
control of Customer, its employees or agents. In
event of any loss or damage to AFN's facilitie
which Customer is liable, Customer shall reimb
AFN for the lesser of the reasonable cost of repa
the actual cost of replacement.
6. Rights and Obligations of Customer.
6.1. Installation. Customer shall at
expense undertake all necessary prepara!
required to comply with AFN's installation
maintenance instructions. Such preparations inc
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obtaining all necessary consents for the 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 electdc 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 titted or fixed floor
coverings, ceiling tiles, suspended ceilings and
partition covers.
6.2. Premises Access. 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 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 failure of
Customer to provide access to the place at each
location where AFN facilities are 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 carry out
work to install AFN's facilities outside AFN's regular
working 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 Policies. Gusto
shall comply with AFN's acceptable use policies.
acceptable use policies are subject to change at
time by AFN acting in its sole discretion, and all
changes shall be binding upon Customer upon wr
notice to Customer by AFN. Copies of such poll
will be furnished by AFN upon request.
6.4. System Integrity.
(a) Customer shall be responsibl
the use and compatibility of equipment or softwar
provided by AFN. In the event that Customer
equipment or software not provided by AFN w
impairs Customer's Data Services or the net
Customer shall nonetheless be liable for paymen
all service, including without limitation any softw
provided by AFN. Upon notice from AFN that
equipment or software not provided by AF
causing or is likely to cause any hazard, interfere
or service obstruction, Customer shall immedi
eliminate the likelihood or hazard, interference
service obstruction and if Customer fails to do
AFN may take such action as it deems require
eliminate such hazard, interference or set
obstruction.
(b) Customer will only connect to
network using industry standard equipment w
complies and is compatible with the ser
specifications set forth in applicable tech
publications. Notwithstanding the undertaking
Customer in the prior sentence, if, in A
reasonable opinion, the technical integrity of
network or the services being provided over
network to Customer or any other third party is b
jeopardized or is likely to be jeopardized as a res
the connection of any Customer premises equip
to the network by Customer or by any other activit
which Customer is responsible, AFN may sus
the provision of the services to any connectio
affected. Following remedial action by Custc
satisfactory to AFN, AFN will reinstate the set
provided through that connection as soon as possi
(c) AFN reserves the right to allo
refuse to allow any make, model or software revi
of customer-provided equipment to be used
gateway to any network access. Customer
cooperate with AFN in setting the initial configur
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:. ~ k~;A ~; ~F:N' Data serv ces Contr W@d ..................................................................... ~5~' e 4
for its equipment's interface with the network.
(d) AFN may from time to time issue
technical instructions on the use of the network to
ensure the proper functioning of the services or the
protection of the network from damage or
deterioration. 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 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 Customer's inability to
meet obligations when due; or failure of Customer to
cum 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 internet, (b)
to obtain any credits otherwise due to Customer, and
such credits shall be for[eited, or (c) to access third
party services, merchandise or information on the
internet through AFN. AFN shall have no
responsibility to notify any third-pan'y 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. Termination fee. If AFN terminates
agreement for cause, or if Customer terminates
agreement without cause, Customer shall pay A
termination fee equal to the lesser of (a)
remaining charges applicable through the end of
scheduled term, or (b) six months of charges.
8. NO WARRANTIES. TO THE EXT
PERMITTED BY APPLICABLE LAW, AFN
PROVIDING THE SERVICES AND THE SYS
(INCLUDING BUT NOT LIMITED TO THE
FACILITIES AND ANY ACCESS TO
NETWORK) AS IS AND WITH ALL FAULTS,
HEREBY DISCLAIMS ALL OTHER WARRANTIE
ANY, EITHER EXPRESS, IMPLIED, STATUT
OR OTHERWISE WITH RESPECT TO ANY OF
SYSTEM AND SERVICES PROVIDED OR TO
PROVIDED UNDER THIS AGREEM
INCLUDING BUT NOT LIMITED TO ANY (IF A
AND ALL IMPLIED WARRANTIES
MERCHANTABILITY, FITNESS FOR
PARTICULAR PURPOSE, OF LACK OF VIRU
LACK OF NEGLIGENCE OR LACK
WORKMANLIKE EFFORT.
AFN MAKES NO WARRANTY: (a) OF TITLE, Q
ENJOYMENT OR LACK OF INFRINGEMENT
RESPECT TO THE SYSTEM OR SERVICES;
THAT THE SYSTEM OR SERVICES ARE "Y
2000" COMPLIANT; AND (c) THAT
OPERATION OF THE SYSTEM OR SERVICE
BE UNINTERRUPTED OR ERROR FREE.
9. EXCLUSION OF CERTAIN DAMA
LIMITATION OF LIABILITY AND REME
EXCLUSIVE REMEDY. TO THE MAXIMUM EXT
PERMITTED BY APPLICABLE LAW, IN NO EV
WILL AFN BE LIABLE UNDER ANY CONTR
NEGLIGENCE, STRICT LIABILITY OR OT
THEORY FOR ANY SPECIAL, INDIR
INCIDENTAL OR CONSEQUENTIAL DAMA
(INCLUDING BUT NOT LIMITED TO DAMA
FOR LOSS OF PROFITS OR CONFIDENTIAL
OTHER INFORMATION, FOR BUSlN
INTERRUPTION, FOR PERSONAL INJURY,
LOSS OF PRIVACY, FOR FAILURE TO MEET
DUTY INCLUDING OF GOOD FAITH OR
REASONABLE CARE, FOR NEGLIGENCE,
FOR ANY OTHER PECUNIARY OR OTHER L
WHATSOEVER) ARISING OUT OF OR IN ANY
4 - afnDATA Services Agreement(p:~teleVorms~AFN Data Se~ices k.wpd)(5/99)
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.
10. Uncontrollable Conditions. Neither path/
be deemed in violation of this agreement if
prevented from performing any of the obligat
under this agreement by reason of severe wea
and storms; earthquakes or other natural occurren
strikes or other labor unrest; power failures; nucle
other civil or military emergencies; acts of legisla
judicial, executive or administrative authorities; or
other circumstances which are not within
reasonable control.
11. Severability. In the event that a c
governmental agency, or regulatory body with pr
jurisdiction determines that this agreement o
provision of this agreement is unlawful,
agreement, or that prevision of the agreement to
extent it is unlawful, shall terminate. If a provisio
this agreement is terminated but the parties
legally, commercially and practicably continue wit
the terminated provision, the remainder of
agreement shall continue in effect.
12. General Provisions. Failure or delay by ei
party to exercise any right or privilege under
agreement will not operate as a waiver of such
or privilege. This agreement may be assigne
Customer only with the consent of AFN.
agreement constitutes the entire understan
between Customer and AFN with respect to Ser
provided herein and supersedes any prior agreem
or understandings.
13. Special Provisions.
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
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.
Customer:
By:
Title:
Date:
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I. Mike Ainsw0rth: AFN Data Services contr.wpd .................................... p~
By:
Title:
Date:
Title:
Date: ~ J /.~--/5'-Cc)
Legal Review By: ~ Date:~/l~/~
AFN
Received from
For
CITY OF ASHLAND~,~, ~ '~)~'z'~/,-. 6 3 5 3 0
Account Number
By ~ [
Check
Amount
iZZ
Amount
TOTAL
6 - afnDATA Services Agreement(p:~tele\forms~AFN Data Services k.wpd)(5/99)