HomeMy WebLinkAbout2002-146 AFN Agrmt - Rogue DataRogue Data Vault
Services Agreement ashland fiber network
Agreement between the City of Ashland by and through its Department of Elect~c Utilities,
Ashland Fiber Network Division (-AFN') and Customer named below for afrIDATA services
('Data Services") on AFN's telecommunications system through its fiber optic network (the
"network" or 'system").
Billing Address:
Premises Addre~ (if different):
Bundled High Speed Ifltemet Sewice.l~ate: Installation Charge: ~l~100Mbps $1,000.00
~[~100Mbps LL + · ~ Mbits = $ E~O/mo,th E! Custom $
Unbundled High Speed Access Rate:
El 100Mbps LL $390.00+ ~ Mblts = $. /month
1. SERVICES. Customer shall pumhase and AFN shall
provide to Customer.' 3. CHARGES.
¶.1. DATA SERVICES. Data Services permit 3.1. DATA SERVICES RATE. From the service
access by Customer to AFN's telecommunications system acce~ance date, Customer shall pay the rate specified
at the point of delivery located in the Customer's premises above for each month of service. If the service does not
described above. The point of delivery is that location begin on the first day of a billing cycle, then payments for
where the network and Customer's system are the fim-'t month shall be prorated on a daily basis. All sums
interconnected, shall be paid within 20 days after the date of the monthly
billing for services (the "due date").
1.2. INST.N.I.ATIOfl SERVICES. Installation services
consist of coordinating with Customer the necessary 3.2. INSTAU. ATION SERVICES CHN~E. Customer
engineering, site survey, system configuration and other shall pay the installation charge specified above for the
services necessary to provide Customer Data Services. installation services provided by AFN which charges shall
These services shall be provided up to the date that the be due and payable upon execution of this agreement (the
service testing is completed based on AFN's customary 'due date").
testing procedures and the service is available to the
Customer ('the service acceptance date"). In addition, 3.3. LATE PAYMENTS, DEPOSIT. Payments received
^FN will install such wiring, switches, routers, cabinets or after the due date may be subject to a charge of 1%% per
other equipment (~collectively referred to as 'AFN month on the unpaid bGJaflce at the discretion of AFN.
facilities') necessary to connect Customer's facilities to the AFN may require Customer to pay a deposit in advance of
network, the provision of any service. Any such deposit shall be
held by AFN in a non-interest bearing account and used to
2. TERM. This agreement will be effective upon the date satisfy (in whole or in part) any obligation of Customer
executed by AFN and shall continue for one year, unless under this agreement.
sooner terminated as provided in this agreement. In the
event written notice is not given by either party to 4. SERVK~E LEVELS, AFN will exemise reasonable efforts
terminate this agreement at least 30 days prior to the to provide service on a 24-hour-a-day, 7-day-per-week
termination date, this agreement shall be extended for basis. Customer understands and acknowledges that AFN
successive one year periods on the same temps and does not warrant that its service will be provided without
conditions except for the rate specified in section 3. The interruption. Customer also understands that the rates
rate for each extension period shall be the rate then in and speed for this service is based on the utilization of
effect, as published by AFN, at least 45 days prior to the burstable data transmission methodology where the full
termination date. bandwidth contracted for is to be utilized in bursts only
1 - a~rlDATA Services Agreement (p:~tele~forms~AFN DATA SERVICES,D
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, AFN 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 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 FACILITIES. 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
same premises. 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 facilities a label indicating the interest
of AFN.
5.1. REMOVAL. Customer will use reasonable
efforts to ensure that AFN facilities are not removed or
caused to be removed by any person, other than AFN or
without AFN's prior written consent.
5.2. PROPER ENVIRONMENT. Customer shall use
reasonable efforts to keep the location of AFN's facilities
in the proper environment as specified by AFN.
5.3. DAMAGE. Customer agrees to exercise due
care and caution to protect AFN's facilities from the
weather, vandalism and other potential problems.
Customer shall be liable for any loss or damage to AFN's
facilities at any location arising from Customer's
negligence, intentional act, unauthorized maintenance or
other cause within the reasonable control of Customer, its
employees or agents. In the event of any loss or damage
to AFN's facilities for which Customer is liable, Customer
shall reimburse AFN for the lesser of the reasonable cost
of repair or the actual cost of replacement.
6. RIGHTS AND OBLIGATIONS OF CUSTOMER.
6.1. INSTALLATION. Customer shall at its expense
undertake all necessary preparations required to comply
with AFN's installation and maintenance instructions. Such
preparations include 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 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 cant' out
installation 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 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 cant' 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. 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. SYSTEM INTEGRITY.
2 - afnDATA Services Agreement (p:)Iele\forms\AFN DATA SERVICES.DOC)(5/99)
(a) Customer 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 impairs Customer's
Data Services or the network, Customer shall nonetheless
be liable 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 service obstruction and if Customer fails to
do so, AFN may take such action as it deems required to
eliminate such hazard, 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 integrity 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 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 right 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 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 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 intemet 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. 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 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: (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"
COMPLIANT; AND (c) THAT THE OPERATION OF THE
SYSTEM OR SERVICE WILL BE UNINTERRUPTED OR
ERROR FREE.
9. EXCLUSION OF CERTAIN DAMAGES; LIMITATION
OF LIABILITY AND REMEDY; EXCLUSIVE REMEDY.
TO THE MAXIMUM EXTENT PERMITTED BY
APPLICABLE LAW, IN NO EVENT WILL AFN BE LIABLE
UNDER ANY CONTRACT, NEGLIGENCE, STRICT
3 - COMDATA Services Agreement (p:ltele\forms\AFN DATA SERVICES.D0C)(5/99)
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 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.
Date:
4 - afnDATA Services Agreement
10. UNCONTROLLABLE CoNi moNs. 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; power failures; nuclear or other civil or
military emergencies; acts of legislative, judicial, executive
or administrative authorities; or any other circumstances
which are not within its reasonable control.
11. SevERABrranr. In the event that a court, govemmental
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 remainder of this
agreement shall continue in effect.
12. GENERAL PROVISIONS. 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 respect
to Service provided herein and supersedes any prior
agreements or understandings.
13. SPECIAL PROVISIONS.
Custo Ad-1
By:
A-WE
Title: Syrn pdt?
Date: Lep-- 1/0, -zoo r-
By:
Title:
Date:
AFN:
By:
Title:
Date:
AFN Legal Review By: 'f Ir. ,
?? / 2 (p.1televormsVlFN DATA SERVICES.DOC)(5199)