HomeMy WebLinkAbout2006-034 AFN Agrmt - WebRing
SERVICES AGREEMENT
Agreement between the City of Ashland by and through its Department of Electric Utilities, Ashland IFiber Network Division
("AFNj and Customer named below for"OATA services ("Data Servicesj on AFN's telecommunications system
throu h its fiber 0 ic network the "network" or"s stem
Customer Name:
Billing Address:
WebRing
500 A Street
Suite 2
Ashland, OR 97520
Premises Address (if different):
Telephone:
Bundled Services (per month): 1 00 Mbit local loop connection @....L-Mbitaccess =
o Unbundled Access (per month): Mbit times $615 =$ + $390 Loop Fee =
o Installation fee $1,000 or p(custom $ "500
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 delivery 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 datej. In addition, AFN will
install such wiring, switches, routers, cabinets or other
equipment ("collectively referred to as "AFN facilitiesj
necessary to connect Customer's facilities to the
network.
2. TERM. This agreement will be effective upon the date
executed by AFN and shall 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 section 3. The
rate for each extension period shall be the rate then in
effect, as published by AFN, at least 45 days prior to the
termination date.
3. CHARGES.
3.1. DATA SERVICES RATE. From the service acceptance
date, Customer shall pay the ra1te specified above for
each month of service. If the service does not begin on
the first day of a billing cycle, then payments for the first
month shall be prorated on a daily basis. All sums shall
be paid within 20 days after thEl date of the monthly
billing for services (the "due datej.
3.2. INSTALLATION SERVICES CHARGE. Customer shall pay the
installation charge specified above for the installation
services provided by AFN which charges shall be due
and payable upon execution of thiis agreement (the "due
date").
3.3. LATE PAYMENTS, DEPOSIT. Payments received after the
due date may be subject to a charge of 1 %% per month
on the unpaid balance at the discretion of AFN. AFN
may require Customer to pay a de,posit in advance of the
provision of any service. Any suclh deposit shall be held
by AFN in a non-interest bearin" account and used to
satisfy (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-li-day, 7-day-per-week
basis. Customer understands and acknowledges that
AFN does not warrant that its s4:lrvice 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 contractEld for is to be utilized in
bursts only and not continuous,ly. 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
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o
1 - .'-DATA Services Agreement
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 FACIUTIE8. 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.
1 - .'-DATA Services Agreement
6. RIGHTS AND OsuGATIONS OF CUSTOMER.
6.1. INSTALLATION. Customer shall at its expense
undertake all necessary preparaticlns required to comply
with AFN's installation and maintenance instructions.
Such preparations include obt;~ining 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 fol' 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 m~lintain 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 ins1tallation 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 Customl~r premises where any
AFN facilities are installed. AFN slhall 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 f~lcilities 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 oveltime and any other
appropriate charges agreed betwE!en 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 POUCIES. Cust'omer shall comply with
AFN's acceptable use policies. The acceptable use
policies are subject to change at lmy time by AFN acting
in its sole discretion, and all sllJch changes shall be
binding upon Customer upon written notice to Customer
by AFN. Copies of such policies will be fumished by AFN
upon request.
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30 days notice by AFN.
6.4. SYSTEM INTEGRITY.
(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
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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 internet 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 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 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.
STRICT 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
MA TIER 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 NA TUIRE WHATSOEVER,
INCLUDING WITHOUT LIMITATION DIRECT OR
ACTUAL DAMAGES, SHALL BIE 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 PRECEIDING 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 AGAINS1r 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 PART''!' BENEFICIARIES OF
THIS AGREEMENT. CUSTOMEIR AGREES THAT AFN
SHALL HAVE NO LIABILITY FOR THE NEGLIGENCE,
PRODUCTS, SERVICES OIR 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.
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, 10. UNCONTROLLABLE CONDITIONS. Neither party shall be
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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. SEVERABILITY. In the event that a court, governmental
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.
1 - alnDATA Services Agreement
Customer:
By:
Title:
Date:
FederallD #
AFN:
~/v
By: - .. :ua ~~
Titl~- .' i'rr.7r ~.
Date: 4 -t.{ .Ob
Content Review By:
Legal Review By:
Date:
Date:
(p:\tele\forms\AFN High Speed Internet k 2OO2.wpd)(6102)
CITY OF ASHLAND
?t)~~ 0}~
Received from
For
Date
Cash
Account Number
Check
Account Number
By
Amount
90617
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Amount
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