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HomeMy WebLinkAbout2000-207 AFN Agrmt - OpenDoorashland ~iber network Q. fnDATA 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 Ofl]DATA services ("Data Services") on AFN's telecommunications system through its fiber optic network (the 'network, or 'system"). Cuatomer Nall~: Billing Address://~, ~..,,~.~,..~/~.~y/.~.~ ~ Premises Address (if different): Data Services Rate: ~]~ 10Mbps + ~.~.-. [] 100Mbpe + . I[= addreasse = $ _~?.,.~, /month IP addresses = $ /month I lnatallation Charge.~o 0Mbps $ 750.00 I [] 100Mbps $1,250.00 I [] Custom $ 1. S£RV~F.S. Customer shall purchase and AFN shall provide to Cus~. 1.t. DATA SERVICES. Date Services permit access by Customerto AFN's telecommunications system at the point of dallvery located In the Customer'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 RATF. From the serve acceptance date, Customer shell pay the rate apecifl~ above for each month of serVice. If the service does no begin on the first day of a billing cycle, then peyme[~ts fo the first month shall be prorated on a dally basis. All surf~ shall be paid within 20 days alter the date of the month~ billing for services (the 'due date'). t.2. INSTALLATION SERVlCE~. installation services consist of cco~n~ng With Custome~ the necessary engineadng, lite euway, system configuration and-other services neceseary 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 wil! install such wiring, m~itohse, routers, cabinets or other equipment ('collectively referred to as 'AFN facilities') necessary to connect Customer's facilities to the network. 2. TERM. This agreement will be effective upon the date executed by AFN and shell continua for one year, unless sooner terminated as provldad 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 pedod shall be the rate then in effect, as published by AFN. at least 45 days prior to the termination date. 3.2. INs'rALLA'nON 8r=~vlc,=.s CHA~E. Custom shall pay the Installation cba~ge specified above for if~ installation services provided by AFN which charges aha be due anti payable upon execution of this agreement (th~ 'due date'). 3.3, LATE PAYMENTS, I)EPO~IT. Payments raselve alter the due date may be subject to a charge of 1~% I~ month on the unpaid balance at the dl~n of.AFb AFN may require Customer to pay a deposit in advance the provision of any sarv'~e. Any such deposit shall b held by AFN in a non-interest bearing account and use to satisfy (in whole or In part) any obligation of Customl under this agreement. 4. SERVICE LEVELS. AFN will exercise reasonable effor to provide service on a 24-hour-a-day, 7-day-per-we~ basis. Customer understands and acknowiedgsethatAF does not Warrant that its service will be provided wlth(~ interruption. Customer also unde,i~nda that the ratl and speed for this service is based on the utilization burstebte date transmission methodology where the tt bandwidth contracted for is to be utilized in bursts on and not continuously. AFN may monitor Custome~ bandwidth utilization in order to ensure that Customer I £ gtfnDATA Services Agreement (p:~ele~fonnlv~FN Data Se~ Contr-wPdX~/ transmissions are within the burstable utilization rate guidelines. These guidelines are subject to change at any time by AFN acting in !ts 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 othenvlee, which exceeds 24 consecutive hours in duration, and of which AFN receives written notice within 48 hours of such failure or intermlYdon, AFN shall credit Customer's account with respect to the affecfa~ service by an amount equal to one-lhirl~elh of period during which the failure or intemJplion continues. This credit shall be the sole and exclusive remedy of Customer ~ respect to any intarmp~k)n or failure of the service. No such credit shall be due, however, if the interruption is for reasons related to scheduled nekvo~ maintenance. 5. AFN FAClU'nES. Any AFN facir~ inatalled on Cuatomer's premises shall be and remain the property of AFN and may be repairad or reldaCed at any time and removed at ~e customem of AFN va"ether or not on the seme ixemises. No placing or maintaining its fadlNse upon Custon~s ~.1. REIKNAL. Customerwlll use reasonab~atferla to essure that AFN facllitbs are not removed or caused to be removed by any person, other than AFN or without AFN's 6.2. P~OPER ENv~oN~Em', Customer shall use reasonable efforts to keep the kx:alton of AFN's facilities in the pmpar em, imnme~t as spaclltad by AFN. 6.3. DM~aE. Custome~ agrees to exercise dus care and caution to protect AFN's facilities from the weather, liable for any loss or damage to AFN's faculties at any unauthorbr, ed meintanance er other cause within the masonalde conthd of Cust0mor, ita emptoy,ess or agenta. In Customer is liable, Customer shalt reimburse AFN for the lesser of the reasonable cost of repair or the actual cost of 6. ~ AND OBLIGATIONS OF CUSTOMER. 6.1. INSTALLATION. Customer shall at its expense undmlake all necessary preparations required to comply with AFN's installation and maintenance instructions. Such preparations include obtaining all necessary consents ~'the installation and use o[AFN facilities in the building, ~ consents for necesse~ alterations to buildings; ensudng ~ any floor loading limits will not be excesdeo? providing suitable accommodations, foundations and an enviro~rnant to meet the environmental specifications torAFN including ~ necessary trunking, conduits and cable bays; Providing suitabts electric power and any other utili~s ~ by AFI~ to install, test and or maintain AFN facilities; Drovi~ nga suitable and safe working environment for AFN's personnel, including an environment safe from environmental hazards; and taking up or mmo~ng, !n time to allow AFN to cany out installation as scheduled, any titted or fixed ~,oor coverings, ceiling tiles, suspended ceilings and partitiOn covers. 6.2. Premises Access. Customer shall ProvideAFN or other persons authorized by AFN with access (on bo~ a murine and emergency basis) for the in',plementati~ of all services contemplated to be provided by AFN. Armr the service acceptance dale, Customer ~ provide AFN reasonable access to the Customer premises where any AFN facilities are instal~:l. AFN shall not be responsible for any faults on the natwon~ or any failure to perform the faith, requires access, and any such faul~ or fa~ure~ or the continuation thereof am a result of the failure of Customer to provide accese to the place at each location where AFN facilities are installed supporting the failing service or (a) During implementation, AFN ~ normally carry outwork required to install and/or repair AFN'i facilities during its normal woddng hours but may, or reasonable notice, require access at other times. A Custm,ne~s request, AFN will cam/out wodr, to Inatall AFN'~ Customer agrees to pay overtime and any other appropdab (b) Any out-of-pocket costs reasonabi incurred by AFN as a consequence of the denial of anc~s Customor (or building owne0 to any location shall be paid I~ Customer. AFN shall advise Customer of any such costs 6.3. ACCEPTABLE USE POUCIES. Customer comply with AFN's acceptabla use policies. The ancept;l~ use policies are subject to change at any time by AFN an~ in its sole discretion, and all such changes shall be bindir~ upon Customer upon written notice to Customer by Copies of such policies will be furnished by AFN upo request. 6.4. SYSTEM IHTEGRn¥. (a) Customer shall be responsible for t~ use and compatibility of equipment er software not provide by AFN. In the event that Customer uses equipment { 2 - ¢~'rtDATA Services Agreement (p:~teieUormsVU=N Data Services Contr.wpdXS/1 software not provided by AFN which impairs Customer's Data Services orthe network, Customer shall nonetheless be liable for payment for all service, including without limitation ~y software, provided by AFN. Upo~ nolica tYom AFN that any equipment or software not provided by AFN is causing or is likely to cause any hazard, interference, or service obsthJcfion, Customer shall i~iately eliminate the likelihood or hazard, interference, or sewice obstruction and if Customer fails to do so, AFN may take such action as it deems required to eliminate such hazard, interference or service obstmction. (b) Customer will (rely connect to the network using industry standard equipment which complies and is compatibte wllh the sewice speclficatinne set forth in applicable technical pub, rg:a~one. No[withstanding the undertaking of Customer in the prior sentence, if, in AFN's any other third party is bein, g jeopardized or is lilmly fo be premises equipment to the network by Customer or by any other activity for which Customer is respon~l~te, AFN may suspend the provision of tha services to any connec~n so atfacted. Foaowing remedi~ action by Customer setlsfact=7 to AFN, AFN will reinstate the sewice provided through that (c) AFN reservee tha dght to allow or refuse to allow any meke, model or software revision of customer- provided equipment to be used es a gafaway to any network configuration for its equipmen~s interface with the network. network ft'om damage or defadorstion. Technical instructtons 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 pedod, Cause is any material 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. CEesAllON OF SERVICE. AFN rn~y. deny Customer accase to the netwod; and cease to provide ell or part of any sewices clescdbed 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 dsk that AFN may be subjected to civil or cflminel litigation, charges, or damages; or (c) would cause AFN io 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, naither Customer nor any of its customers shall have any right (a) to access through AFN any materials stored on the intemeL (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 intomet through AFN. AFN shall have no responsibility to notify any third-party providers of services, merchandise or infon~ation 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 this agreement for cause, or if Customer terminates this agreement without cause, Customer shall pay AFN a termination fee equal to the lesser of Ia) the remaining charges applicable through the end of the scheduled fan~, or (bi sb( months of charges. 8. NO WARRANTIES. TO THE EXTENT PERMI1 1 ~-D BY APPUCABLE LAW, AFN IS PROVIDING THE SERVICES AND THE SYSTEM [INCLUDING BIJ'F NOT UMITED TO THE AFN FACILITIES AND ANY ACCESS TO THE NETWORK) AS IS AND WITH ALL FAULTS, AND HEREBY DISCLAIMSALLOTHER WARRANTIES, IFANY, EITHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE WITH RESPECT TO ANY OF THE SYSTEM AND SERVICES PROVIDED OR TO BE PROVIOED UNDER THIS AGREEMENT, iNCLUDING BUT NOT UMITED TO ANY (IF ANY) AND ALL IMPUEr~ 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 TrrI.E, QUIE'I ENJOYMENT OR LACK OF INFRINGEMENT WITI- RESPECT TO THE SYSTEM OR SERVICES; (b)' THAI THE SYSTEM OR SERVICES ARE ~ 2000 COMPLIANT; AND (c) THAT THE OPERATION OF THE SYSTEM OR SERVICE WILL BE UNIN I cRRUPTED OF ERROR FREE. 9. EXCLUSION OF C E.,RnTvA. IN DAMAGES; uMrrATION OI LIABILI'rY AND REMEDY, EXCLUSIVE REMEDY. TO THI MAXIMUM EXTENT PERMI'FTED BY APPLICABLE LA~ IN NO EVENT WILL AFN BE LIABLE UNDER AN' CONTRACT, NEGLIGENCE, STRICT LIABIUTY OI OTHER THEORY FOR ANY SPECIAL. INDIREC' INCIDENTAL OR CONSEQUENTIAL DAMAGE (INCLUDING BUT NOT LIMITED TO DAMAGES FOR LOS OF PROFITS OR CONFIDENTIAL OR oTHE INFORMATION, FOR BUSINESS INTERRUPTION, FO PERSONAL INJURY, FOR LOSS OF PRIVACY, FO 3 - t~ttDATA Services Agreement (p:~tele~forms~AFN Data Sewices Contr.wpd)(5,q FAILURE TO MEET ANY DU'TY INCLUDING OF GOOD FAITH OR OF REASONABLE CARE, FOR NEGLIGENCE, AND FOR ANY OTHER PECUNIARY OR OTHER LOSS WHATSOEVER) ARISII~G 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 EMITATION ANY LIABILITY OF AFN FOR ANY DAMAGES OF ANY NATURE WHATSOEVER. INCLUDING wf'rHOUT LIMITATION DIRECT OR ACTUAL DAMAGES, SHALL BE EMITED 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 3WELVE 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 SPECIFICALLY PROVIDED IN SECTION 4, THE RIGHTS AND RE .~ES GRANTED TO CUSTOMER UNDER THIS SECTION 9 CONS11TUTE 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 MMITED TO CLAIMS ARISING UNDER STATUTORY OR COMMON LAW OR OTHERWISE THERE ARE NO THIRD PARTY BENEFICIARIES OF THIS AGREI~MENT. CUSTOMER AGREES THAT AFN SHALL HAVE NO LIABILITY FOR THE NEGEGENCE, PRODUCTS, SERVICES OR V~SITES OF CUSTOMER; OF AFFILIATES; OF DEVELOPERS OR CONSULTANTS IDENTIFIEDOR REFERRED TO CUSTOM ER BY AFN; O R 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. UNCONTROLLABI.~ CONDITIONS. Neither party shell be deemed in violation of this agreement if it is prevented from performing any of the obligations under this agreement by mason of severn weather and Storms; earthquakes or other natural occurrences; strikes or other labor unrest; power failures; nuclear or other civil or military emergencies; acts oflagislative, judicial, executive or administrative authorities; or any other circumstances which are not within its reasonable control, 11.8EVERABILITY. In the event that a court, govem~ontal agency, or regulatory body with proper jurisdic~m determines that this agreement or a provision of.this agreement is unlawful, this agreement, or that provisk~ of the agreement to the extent it is unlawful, shall terminate. If a provision of this agreement is terminated but lite parties can legally, commercially and practicably continue without the terminated provision, the mmaiq,der of this agreement shall continue in effect. 12. GENERAL PROVISIONS. Failure or delay by either party to exemise any dght 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 respect to Service provided herein and supersedes any prior agreements or upderstandings. 13. SPECIAL PROVISIONS. Cuatomer: By: . Date: AFN Legal Review By: Date: 4 - ¢IflIDATA Services Agreement (p:~tele~fomls~AFN Data Servloes COIltr.wlxl)(r'