HomeMy WebLinkAbout7/15/03 ISP Agrmt - Mighty Net.fiber network
I?I RINTERNET
Certified Internet Service Provider Cooperative Agreement
Cooperative Agreement between the City of Ashland, by and through its
Department of Electric Utilities, Ashland Fiber Network Division ("AFN"), and Internet Service Provider ("ISP") named
below for the certification of ISP for afnlI,,ITERNET services on AFN's telecommunications system through its fibe'r optic
network ("the network"/.
Mighty Net LLC
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1. CERTIFICATION PROG~. AFN will designate ISP as a
~dified internet se~ice provider on the ne~ork. A list of
all cedified internet se~ice providers will be maintained by
AFN and provided to the public upon request. Only cedified
internet se~i~ providers will be listed.
2. C~PE~T~E ~VERTISlNG. AFN will pay one-half of the
~o~ of all eligible advertising o¢ iSP, up [o a n~aximum of
$3,000 per year, figured at the lowest net rates charged by
the advediser to ISP. Eligible advedising is advedising that
is devoted to promoting ISP's internet se~ice, AFN and the
ne~ork; that is directed to Ashland residents and
businesses and that meets AFN's advedising and co-
branding guidelines.
3. ~N SERVICE L~ELS.
3.1. B~D~D~. AFN will strive to maintain a
ne~ork availabili~ of 100% at a average bandwidth of
1Mbps upstream and 3 to 5 Mbps downstream.
3.2. INSTAL~TION. AFN will install coaxial cable
from the ne~ork to the residence or business of ISP's
customer and install the interior wiring within the residence
or business to the location specified by the customer for
the ~ble modem connection.
3.3. SERVICE CH~GES. Se~ice calls by AFN
requested by ISP shall be billed to ISP at AFN's published
se~i~ rates if it is dete~ined that the problem was not
the fault or responsibili~ of AFN.
4. CER~FICA~ON REQUIREMENTS FOR ISP. ISP agrees to
~mply with the following requirements and procedures in
order to utilize the ne~ork as a cedified internet se~ice
provider.
4.1. REQUIRED MODE~S. ISP shall use only those
~ble modems which meet AFN's cable modem
specifi~tions for use on the ne~ork. ISP shall be
responsible for supplying the ~ble modem necessa~ to
~nnect its customer to the ne~ork. ISP may supply the
device through leasing, direct sale, lease/purchase, or
through third-pa~ vendors or contractors, at ISP's
discretion.
4.2. ISP SERVICE LEVEL. ISP shall provide internet
se~ices to all Ashland residents or businesses who
request se~ice and who othe~ise meet the hardware and
credit or payment requirements of ISP. ISP will connect
customers within ten business days from the date the
customer requests se~ice and othe~ise meets the
requirements of ISP for se~ice, or when the necessa~
wiring of the customer's residence or business for
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connection to the network is installed, whichever date is
later.
4.3. RATE PUBLICATION. ISP shall publish its rates
for internet connection in a manner that allows accurate
comparisons for like services from different internet service
providers. ISP shall notify AFN of its rates and provide 30-
day prior notice oF any change in such rates.
4.4. CO-BRANDING. All publicity and advertising by
ISP for internet access utilizing the network shall indicate
the integral relationship between ISP and AFN and comply
with the requirements of AFN's co-branding guidelines.
4.5 ACCEPTABLE USE POLICY. ISP shall comply with
AFN's acceptable use policies. These policies apply to ISP
and to any other person, organization or entity using ISP's
services. 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 ISP upon written
notice to ISP by AFN. Copies of such policies will be
furnished by AFN upon request.
5. Term. This agreement supercedes all previous
agreements and shall be effective upon the date executed
by AFN and shall continue until July 1,2003, 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
connection rates specified in paragraph 6.
6. PAYMENT. Amounts required to be paid under this
paragraph shall be established by AFN by periodic
publicaJion of rates. Rates may be changed by AFN upon
45 days prior notice to ISP.
6.1. RESIDENTIAL. ISP shall pay AFN an 'amount
per month at the published rate, plus franchise fees, for
each residential internet account of ISP connected to the
network. A residential internet account is an account limited
to one dynamic IP address.
6.2. COMMERCIAL. For each commercial internet
account of ISP connected to the network, ISP shall pay
AFN an amount per month, at the published rate, for a
single IP address plus an amount for each additional
address and plus franchise fees. A commercial internet
account is an account with a maximum of eight fixed IP
addresses.
6.3. PAYMENT REPORT, DEPOSIT. All sums shall be
paid monthly by the 15m of the month for all of ISP's
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accounts connected to the network in the previous month
and for all service charges. For those modems that were
active less than a full month, the ISP will pay a prorated
amount based on the number of days the modem was
active. If ISP fails to pay amounts due by the 15% ISP
agrees to pay a 10% late charge on the unpaid balance
plus interest of 1 ½% per month on such balance. AFN may
require ISP to pay a deposit in advance of the provision of
any access. 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 ISP under this agreement.
7. RECORDS AND AUDIT REQUIREMENTS. ISP shall maintain
fiscal records on a current, monthly basis to support its
reports to City as to the number and types of customers.
AFN or its authorized representative shall have the
authority to inspect, audit, and copy on reasonable notice
and from time to time any records of ISP regarding its
reports or services directly pertinent to this agreement. All
required records must be maintained by ISP for three
years.
8. 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 ISP or ISP's inability to
meet obligations when due; or failure of ISP to cure any
violation (other than failure to pay) of the provisions of this
agreement within 30 days notice by AFN.
8.1. AFN may deny ISP access to the network and
cease to provide all or part of any services described in this
agreement without notice if ISP (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 internet provider.
8.2. If AFN ceases to provide or denies ISP access
to the network pursuant to this paragraph, neither ISP nor
any of its customers shall have any right (a) to access
throHgh AFN any materials stored on the in. terrier, (b) to
obtain any credits otherwise due to ISP, 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 paragraph,
nor any responsibility for any consequences resulting from
lack of such notification
8.3. IfAFN terminates this agreement for cause, or
if ISP terminates this agreement without cause, ISP 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.
9. LIMITATION OF LIABILITY. AFN SHALL NOT BE
LIABLE TO ISP FOR ANY INCIDENTAL, INDIRECT,
SPECIAL, OR CONSEQUENTIAL DAMAGES OF ANY
KIND INCLUDING BUT NOT LIMITED TO ANY LOSS OF
USE, LOSS OF BUSINESS, OR LOSS OF PROFIT.
REMEDIES UNDER THIS AGREEMENT ARE
EXCLUSIVE AND LIMITED TO THOSE EXPRESSLY
DESCRIBED IN THIS AGREEMENT.
10. NO WARRANTIES. THERE ARE NO WARRANTIES,
EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED
TO WARRANTIES OF MERCHANTABILITY AND
FITNESS FORA PARTICULAR PURPOSE OR FOR ANY
INFORMATION, SERVICE OR MERCHANDISE
PROVIDED THROUGH THE INTERNET, OR ANY
TRANSACTIONS CONDUCTED ON THE INTERNET. ISP
UNDERSTANDS AND AGREES FURTHER THAT THE
INTERNET CONTAINS VIRUSES, WORMS, TROJAN
HORSES AND OTHER HARMFUL COMPONENTS,
UNEDITED MATERIALS SOME OF WHICH ARE
SEXUALLY EXPLICIT OR MAY BE OFFENSIVE TO
SOME PEOPLE. ISP AND ISP'S CUSTOMERS ACCESS
SUCH COMPONENTS AND MATERIALS AT ISP'S OWN
R,OV AFN HAS NO CONTROL OVER AND ACCEPTS
l~l~l ~.
NO LIABILITV OR RESPONSIBILITV WHATSOEVER
FOR SUCH COMPONENTS OR MATERIALS.
11. 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 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.
12. INDEMNIFICATION. ISP shall hold harmless, defend and
indemnify AFN, its elected or appointed officials, officers,
employees and agents, from all claims, damages, losses,
liability and expenses arising from the negligent or other
tortious acts or omissions of ISP and its officers, agents,
employees and independent contractors.
13. ATTORNEY FEES, If this agreement is placed in the
hands of an attorney due to a default in the payment or
performance of any of its terms, the defaulting party shall
pay, immediately upon demand, the other party's actual
fees and expenses together with reasonable attorney fees,
even though no suit or action is filed.
ISP:By: ~' ~,och d
Title:
AFN: By:-
Title:
Legal Review:
~ not attached
Date: 7-' ~
Date: ?/,' ~,,,/~
Date:
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