Metro Ethernet Contract Service Arrangement

Transcription

1 Metro Ethernet Contract Service Arrangement Page 1 of 8 This Contract Service Arrangement (the Agreement ) made and entered into this day of 2010, by and between North State Communications ( North State or the Company ) and Guilford County Schools (the Customer ) (collectively, the Parties ) contains terms and conditions for Metro Ethernet Service (the Service(s) ) as well as a Service Level Agreement (the SLA ). This Agreement includes appendices (the Appendix or Appendices ) (that may be amended from time to time by the Parties) which are hereby incorporated by this reference. In addition to the terms and conditions below, all terms and conditions of and exceptions to the RFP submitted jointly by North State, AT&T and Century Link on December 14, 2009 (the RFP ) for Metro Ethernet as they relate to North State are hereby incorporated by this reference. Any inconsistency between the terms of this Agreement and the RFP shall be resolved in favor of the Agreement. 1. Services and Facilities. North State agrees to provide Customer with Metro Ethernet Service in conjunction with AT&T during the term of this Agreement. Services available to Customer hereinunder are those that will be available under Section 10 of North State s General Exchange Tariff, (the Tariff ) or Price List as approved by the North Carolina Public Utilities Commission, as the same may be amended from time to time. 2. Term. When executed, the term of this Agreement shall continue for a period of thirty-six (36) months thereafter (the Term ) beginning on July 1, All components installed will have a coterminous expiration date of June 30, 2013, provided that each component installed after the effective date of this Agreement has a minimum service period of twelve (12) months. 3. Terminating Liability. In the event that any item of Service is terminated prior to expiration of the Term, except as provided for in Section 7, Customer will pay a termination charge equal to the number of months remaining in the Term times the monthly rate. Subscriber may cancel this Agreement, however; if (1) the telecommunications Services provided under the Agreement, after opportunity to cure, deviate significantly from Customer s Request for Proposal, North State s Proposal in response to Vendor s request, or other associated documentation further defining Service specifications; or (2) the performance of such Services is significantly inferior to the technical and commercial standards in the telecommunications industry. In such event, Customer will remain fully liable for (1) all nonrecurring charges; (2) any costs that may not have been included in the nonrecurring charges which were incurred by North State to deploy the Services, including any special construction charges, capital costs or other expenses; and (3) any recurring charges for Services rendered prior to termination of the Services. The determination of whether or not the Services deviate significantly shall be substantiated by facts and circumstances to be described in writing to North State upon notification of deviation and North State shall have sixty days to cure such deviation. Additionally, the determination of whether or not the Services are significantly inferior to the technical and commercial standards in the telecommunications industry shall be supported by published data provided to North State with the claim by Customer. At such time, North State shall have sixty days to cure any portion of the Services presented in the aforementioned claim or to present evidence to the contrary indicating that the industry standards in the course of practice and performance are being met. 4. Suspension of Service. Customer is not permitted to suspend the Services covered by this Agreement except as provided for in Section 7.

2 Page 2 of 8 5. Service Level Agreement. The Services include an SLA which covers Time to Repair and Network Availability. Time-to-Repair. The SLA allows credit for North State outages which exceed four hours. The repair interval starts when the trouble ticket is entered and ends when the fault is remedied. SLA measurements are based on each trouble ticket issued for the Service. The SLA threshold and credits are applied on a per incident, per Service basis. Multiple trouble tickets on the same day for the Service will only be eligible for one Time-to-Repair credit. Time for scheduled maintenance windows does not count towards SLA threshold. The Customer will be provided with a local number to contact the Network Operations Center (the NOC ) for the purposes of trouble reporting and to request technical assistance and testing. Credit Amount: Per incident outage time, per Service 0 to 4 hours per month No Credit > 4 Hours per month to 24 hours per month Credit 3 days MRC Each additional occurrence per month Credit additional 3 days MRC Credits will apply to all Monthly Recurring Costs (the MRC ) associated with the affected Customer connections. Network Availability measures the percentage of time the Customer s Service is available in the North State network. This SLA interval is calculated on a calendar month basis. Time for scheduled maintenance windows does not count towards SLA threshold. Credit Amount: For each month in which the availability falls below 99.9%, (> 7 hours per month) Customer will receive a credit of 3 days MRC per percentage point below 99.9%. Total credits in a calendar month for both Time to Repair and Network Availability may NOT exceed the total MRC for the Services covered under this Schedule. 6. Service and Pricing. The rates for Services subscribed to under the thirty-six (36) month contractual rate are shown in Appendix USF Funding. North State acknowledges that Customer has applied or intends to apply for funding from the Federal Universal Service Fund ( USF ) program to help pay for the Services being ordered by Customer under this Agreement. Provided that Customer has diligently and in good faith applied for, submitted all required forms and information, and performed all other duties and obligations required of Customer in connection with obtaining initial and continuing funding from the USF with respect to the Services, North State agrees that Customer may terminate the Services and this order at any time upon at least thirty (30) days written notice to North State, without payment of any early termination charges that would otherwise be due, if (and only if) Customer does not obtain substitute Services from a competitor within one year of any denial of USF funding and (i) (ii) approval for such funding to Customer under the USF program is not initially awarded or if such funding is not renewed annually or the USF becomes depleted or the USF program is changed during the Term of this Agreement such that funding is no longer available to Customer for the Services. Notwithstanding any failure to obtain USF funding, Customer shall remain fully liable and shall have an obligation to pay, in full, all nonrecurring charges; any costs that may not have been included in the nonrecurring charges which were incurred by the Company to deploy the Services, including any special construction charges, capital costs of other expenses, collectively ( Capital charges ) and any recurring charges for Services rendered prior to termination of the Services as a result of such USF nonfunding. Capital charges may be billed as either nonrecurring charges or as part of the recurring charges and shall become due and payable in full on the later of thirty-six (36) days after any initial denial of USF funding, or thirty (30) days

3 Page 3 of 8 after billing. Customer s failure to pay in full any of the charges listed above when they are due shall be sufficient cause for denial of all Services and termination of any resulting Agreement. Upon request, Customer shall be obligated to use its best efforts to diligently appeal any initial denial of USF funding; however, an appeal shall not relieve the Customer of the obligation to pay all charges as set forth above when they become due. Customer also warrants and represents that any resulting Agreement is compliant with all applicable USF funding requests and/or funding commitments. 8. Scope. Any facilities necessary to provide the Services shall be furnished by North State in a configuration (to be determined by North State) which best utilizes the existing facilities of North State and Customer. North State will negotiate engineering design, labor and material costs, and delivery intervals associated with this activity on a case by case basis as they occur. Notwithstanding the foregoing, North State reserves the right to maintain and upgrade its facilities, including those serving Customer, and to operate the same from time to time in such a manner as will best enable the Company, in its sole judgment, to meet the needs of its Customers, including Customer and to fulfill its own service requirements. The Services are at all times subject to the rates, terms, and conditions of the Agreement and governed by the Agreement and the applicable tariff. The provisions of such tariffs applicable to the Services shall apply unless and except to the extent this Agreement contains additional provisions or express provisions specifically in conflict with such provisions in which case the express provisions of this Agreement shall control to the extent permitted by applicable law. The total price of any goods and Services shall be subject to adjustments in the event the Parties mutually agree to changes including the addition or deletion of items or Services, new specifications, or features. Any changes to this Agreement by mutual agreement of the Parties must be set forth in writing and signed by the proper authorized parties. 9. Additional Services. Pricing and rates for additional services will be in accordance with the applicable Tariff rates or contract rates in effect at the time the order is received and accepted by North State. However, any preprinted terms and conditions that may be contained in Customer s written authorization WILL NOT MODIFY THE TERMS AND CONDITIONS OF THIS AGREEMENT. 10. Charges and Billing. Customer shall pay the charges for Services rendered in accordance with the provisions of this Agreement. Customer must pay all usual and customary surcharges and all government imposed fees and charges that relate to the Service, as permitted and required by law. 11. Billing. North State s tariff and federal or state regulatory requirements may govern certain matters associated with the Services beyond those issues addressed in this Agreement (e.g. Service order and equipment charges, local number portability etc.). Such charges will be automatically included in each bill, and are in addition to the rates and charges provided for in this Agreement. Customer shall be billed for all Services provided to all Customer agencies, divisions, or related entities. For Services billed hereunder, the following shall apply: Billing Address. Invoices shall be addressed to: Guilford County Schools Attn: Accounting Dept P O Box 880 Greensboro, NC Timeliness of Billing. At the end of each North State billing cycle, North State will invoice Customer for all North State charges incurred by Customer during such billing cycle. Customer agrees to pay the invoices in full within thirty (30) days of receipt. If full

4 Page 4 of 8 payment is not paid within thirty (30) calendar days, Customer may thereafter be charged prime rate plus six percent (6%) interest on any unpaid balance; provided, however, that such charge shall not exceed the maximum legal interest. If full payment is not paid within sixty (60) calendar days, North State may, in addition to the above remedy, terminate Service under this Agreement. If North State terminates Service due to Customer s default, termination charges as provided for in Section four (4) preceding may apply to the extent permitted by law. 12. Notices. Except as otherwise provided herein, all notices must be in writing to North State at 111 North Main St., P.O. Box 2326, High Point, N.C , Attn: Royster Tucker III, and to Customer at 712 North Eugene Street, Greensboro, NC Term Expiration. At the expiration of the Term the Customer may continue the Service according to renewal options contained in the RFP. If the Customer does not elect an additional service period or does not request discontinuance of Service, then the above Service will be continued at the monthly rate then currently in effect for month-to-month subscribers under the Tariff. 14. Cancellation Liability. If new Service requested by the Customer is canceled prior to the establishment of Service, but after the date of ordering reflected herein, termination charges will be determined as follows: the Customer will be required to reimburse North State for all expenses incurred in handling the request before notice of cancellation is received. Such charge, however, shall not exceed all charges which would apply if the work involved in complying with the request had been completed. 15. Rights of Inspection and Access. North State reserves the right to inspect any of its facilities located on Customer s premises during normal working hours and upon reasonable notice to Customer. Customer agrees to provide immediate access to North State s facilities located on Customer s premises for the purpose of making emergency repairs to those facilities or to effect reconnection of the Service(s) in the event any Service to Customer has failed. Customer must supply an emergency contact name and number. 16. Assignment. Neither this Agreement nor any part or portion of it may be assigned or otherwise transferred by the Customer without North State s prior written consent. North State may assign or transfer this Agreement to any parent, subsidiary, successor or affiliated company, without the prior consent of the Customer. Any and all assignees will honor the terms and conditions of this Agreement, and North State shall remain liable for its obligations hereunder unless and until the Customer executes a novation in favor of North State. 17. Authorized Users. Customer recognizes and agrees that the Services included in this Agreement are specifically restricted to the use of Customer. In particular, the Agreement is intended for the internal use of Customer and its specified affiliates. The resale of Services included in this Agreement is strictly prohibited. There are no third party beneficiaries to the Agreement. 18. Waiver of Warranties. EXCEPT AS MAY BE EXPRESSLY SET FORTH HEREIN, THERE ARE NO WARRANTIES, EXPRESS OR IMPLIED, INCLUDING THE IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, MADE IN CONNECTION WITH THIS AGREEMENT OR THE PROVISION OF SERVICES BY NORTH STATE TO CUSTOMER. 19. Force Majeure. Neither party shall be liable to the other, nor shall any remedy be extended, for any failure of performance under this Agreement proximately due to causes beyond that party s reasonable control, including but not limited to: acts of God, fire, explosion, flood, earthquake, tornado, storms, any law, order, regulation, action or request of any government or regulatory entity or agency, or any civil or military authority; emergencies; civil unrest, insurrections, riots, wars; power failure, equipment failure, industrial or labor dispute, inability to obtain necessary supplies and the like. Upon the occurrence of any such events, North State shall use its reasonable efforts to notify Customer of the nature and extent of any such condition.

5 Page 5 of Interruptions of Service/LIMITATION OF LIABILITY. Consistent with North State s normal operating procedures and subject to the terms of this Agreement, North State agrees to provide the Services as described in the Agreement to Customer but shall not be liable to Customer for any interruption of Service or the unavailability of one or more of the elements or facilities necessary to provide the Service to the extent such interruption or unavailability is not the result of the negligence, gross negligence or intentional wrongful conduct of North State, its employees or agents. In the event of a failure by North State to provide any Service which is attributable to the negligence, gross negligence or intentional wrongful conduct of North State, its employees or agents, Customer s sole and exclusive remedy shall be repayment or forgiveness of any fees paid or due for the Services not provided for interruptions of more than 24 consecutive hours. Records kept by North State shall determine the period of interruption of service. Interruption of service due to outage of telecommunications circuits not under the direct control of North State will not be credited. North State shall not be liable to any of Customer s agents, representatives, assignees, or any third person, for any interruption or unavailability of Service hereunder regardless of the cause of such interruption or unavailability. IN NO EVENT WILL NORTH STATE BE LIABLE FOR ANY LOST PROFITS, LOST REVENUES, LOST SAVINGS OR ANY CONSEQUENTIAL, INCIDENTAL, SPECIAL, PUNITIVE OR EXEMPLARY DAMAGES ARISING OUT OF OR RELATING TO ITS FAILURE TO PROVIDE THE SERVICE(S). Except as provided in this Section twenty (20), any North State liability to Customer for any damages of any kind under this Agreement shall not exceed a sum equivalent to the applicable credit for interruptions to service set forth above. Remedies under this Agreement are exclusive and limited to those expressly described in this Agreement. 21. Personal Injury; Damage or Loss to Facilities. Each Party agrees to reimburse the other Party for any damage or loss to a Party s Facilities caused, in whole or in part, by the negligent, grossly negligent or intentional conduct of the other Party, its employees, agents or representatives. Each Party shall exercise special precautions to avoid damage to the other Party s facilities and hereby assumes all responsibility for any and all loss or damage to the other Party s facilities caused by it, its employees, agents or representatives. Each Party shall immediately report the occurrence of any damage to the other Party s facilities and hereby agrees to reimburse the other Party for any and all expenses incurred in making repairs to such facilities caused by it, its employees, representatives or agents. Each Party will also be responsible for any personal injury or death caused by the negligent acts or omissions or intentional conduct of it, its employees, agents or representatives and agrees to reimburse and indemnify the other Party for any and all expenses incurred thereby. 22. Severability and Waiver. Should any provision of this Agreement be held to be void, invalid, unenforceable or illegal by a court or administrative agency of competent jurisdiction, the remaining provisions of this Agreement will remain in full force and effect. Failure of any party to enforce any provision of this Agreement will not constitute or be construed as a waiver of such provision or of the right to enforce such provision. 23. Governing Law. This Agreement shall be governed by and construed in accordance with the laws of the State of North Carolina without regard to principles of conflicts of law. Any claim, action, suit or proceeding (collectively Claim ) between Customer (or affiliates, agents, or representatives) and North State that arises from or relates to this Agreement shall be brought and conducted solely and exclusively within the State of North Carolina. The prevailing party in any action or suit brought in connection with this Agreement shall be entitled to reasonable attorney s fees and costs at trial and on appeal. 24. Lawfulness. This Agreement and the parties actions under this Agreement will comply with all applicable federal, state, and local laws, rules, regulations, court orders, and governmental agency orders. Any change in rates, charges or regulations mandated by legally constituted authorities acts as a modification of any contract to that extent without further notice.

6 Page 6 of 8 IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed by their duly authorized representatives on the dates set forth below. Guilford County Schools BY: (Authorized Signature) NAME: (Print or Type) TITLE: DATE: North State Communications, Inc BY: (Authorized Signature) NAME: Charles B. Williford TITLE: Vice President DATE:

7 Page 7 of 8 Appendix 1 Contract Service Arrangement Guilford County Schools Description Non Monthly Recurring Recurring Premium 10 Mbps Premium Connection (a) per connection, Fixed Mode $0.00 $ (b) per connection, Burst Mode $0.00 $ Mbps Premium Connection (b) per connection, Burst Mode $0.00 $ Mbps Premium Connection (a) per connection, Fixed Mode $0.00 $ (b) per connection, Burst Mode $0.00 $ Mbps Premium Connection (a) per connection, Fixed Mode $0.00 $ (b) per connection, Burst Mode $0.00 $ Mbps Premium Connection (b) per connection, Burst Mode $0.00 $ Mbps Premium Connection (b) per connection, Burst Mode $0.00 $ Gigabit Trunk (shared and/or dedicated) for Metro Ethernet service between North State's Metro Ethernet switch and the AT&T meet point, connecting to AT&T's Metro Ethernet switch in the AT&T central office, per trunk, fixed. $0.00 $ Gigabit Trunk (shared and/or dedicated) for Metro Ethernet service between North State's Metro Ethernet switch and the AT&T meet point, connecting to AT&T's Metro Ethernet switch in the AT&T central office, per trunk, per mile. $0.00 $0.00 Gigabit Trunk (shared and/or dedicated) for Metro Ethernet service between North State's Metro Ethernet switch and the AT&T meet point, connecting to AT&T's Metro Ethernet switch in the AT&T central office, per repeater. $0.00 $0.00

8 Page 8 of 8 Description Non Monthly Premium Recurring Recurring Metro Ethernet Reporting (MER)* MER Service Establishment Charge, per customer account. Includes 1st Web Interface. $ $6.00 MER Charge, per connection MER, each additional interface $75.00 $18.00 MER Security Card, each $ *When available in 6-12 months from acceptance of contract Priority Plus $0.00 $0.00 Q-Forwarding Service Establishment, per connection $ $0.00 Per network, per connection $90.00 $65.00 Reconfiguration Charge $ Service Reconfiguration Charge modification of service subsequent to establishment of service, such as upgrades or downgrades of transmission speeds that do not result in physical equipment changes. Speed Change Charge (approximately) $ An upgrade in speed requires a nonrecurring charge equal to the difference in nonrecurring charges if the upgrade results in physical equipment changes