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Resolution No. 2013-013RESOLUTION NO. 2013-13 A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF VERNON APPROVING AND AUTHORIZING THE EXECUTION OF AN AGREEMENT FOR CONTINUATION AND UPGRADE OF DEDICATED INTERNET ACCESS SERVICES UNDER THE MASTER AGREEMENT BY AND BETWEEN THE CITY OF VERNON AND BROADBAND, LLC, A WHOLLY OWNED SUBSIDIARY OF BANDWIDTH.COM, INC. FOR FIBER OPTIC INTERNET ACCESS WHEREAS, on August 3, 2005, the City Council of the City of Vernon adopted Resolution No. 8818 approving a Dedicated Internet Access Service Agreement, Bandwidth.com Internet Access Service Level Agreement and Internet Services Order Form dated on or about August 17, 2005, with Bandwidth.com, Inc. ("Bandwidth") for upstream service provider services to assist the City in providing dedicated internet access services to Vernon businesses using Vernon's fiber optic network infrastructure (collectively, the "Master Agreement"); and WHEREAS, the term of. the Master Agreement is one year and thereafter to continue on a month -to -month basis subject to a 60-day cancellation notice; and WHEREAS, on July 13, 2009, the City Council of the City of Vernon adopted Resolution No. 10,016 renewing the Master Agreement for the period of July 1, 2009 through June 30, 2010; and WHEREAS, on April 19, 2011, the City Council of the City of Vernon adopted Resolution No. 2011-61 renewing the Master Agreement for an additional twelve (12) months; and WHEREAS, since the completion of the twelve (12) month term, the agreement has been on a month -to -month basis subject to Bandwidth's price increase; and WHEREAS, the Light & Power Department solicited quotes from five internet access service providers; and WHEREAS, of the three quotes received Bandwidth provided the lowest quote from responsible providers; and WHEREAS, by memorandum dated January 22, 2013, the Director of Light & Power has recommended that the Agreement for Continuation and Upgrade of Dedicated Internet Access Services (the "Continuation Agreement"), with Broadband, LLC, a wholly owned subsidiary of Bandwidth.com, Inc., be approved for a period of two years, in an amount not -to -exceed $55,000.00,per year; and WHEREAS, the City Council of the City of Vernon has determined that, pursuant to the former provisions of subsection (a) of Section 2.27 of the Vernon City Code, it is in the public interest and necessity to enter into the Continuation Agreement with Bandwidth to continue to provide fiber optic internet access services to the City; and WHEREAS, the City Administrator and City Attorney have indicated that it is appropriate to proceed under the former provisions as this procurement was in progress when the new purchasing ordinance was adopted. NOW, THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF VERNON AS FOLLOWS: SECTION 1: The City Council of the City of Vernon hereby finds and determines that the recitals contained hereinabove are true and correct. SECTION 2: The City Council of the City of Vernon finds that this action is exempt under the California Environmental Quality Act (CEQA), in accordance with Section 15061(b)(3), the general rule - 2 - that CEQA only applies to projects that may have an effect on the environment. SECTION 3: The City Council of the City of Vernon hereby approves the Continuation Agreement, Broadband, LLC, a wholly owned subsidiary of Bandwidth.com, Inc., ("Bandwidth"), in substantially the same form as the copy which is attached hereto as Exhibit A. SECTION 4: The City Council of the City of Vernon hereby authorizes the Mayor or Mayor Pro Tem to execute the Agreement, for and on behalf of the City, and the Interim City Clerk, or Deputy City Clerk, is hereby authorized to attest thereto. SECTION 5: The City Council of the City of Vernon hereby instructs the City Administrator, or his designee, to take whatever actions are deemed necessary or desirable for the purpose of implementing and carrying out the purposes of this Resolution and the transactions herein approved or authorized, including but not limited to, any non -substantive changes to the Agreement attached herein. SECTION 6: The City Council of the City of Vernon hereby directs the Interim City Clerk, or the Interim City Clerk's designee, to send one executed Agreement to Bandwidth. - 3 - SECTION 7: The Interim City Clerk of the City of Vernon shall certify to the passage, approval and adoption of this resolution, and the Interim City Clerk of the City of Vernon shall cause this resolution and the Interim City Clerk's certification to be entered in the File of Resolutions of the Council of this City. APPROVED AND ADOPTED this 22"d day of January, 2013. c , Name: Williad J. Davis eed, Interim City Clerk Title: Mayor / -Mayor FPa-1�n - 4 - STATE OF CALIFORNIA ) ) ss COUNTY OF LOS ANGELES ) I, Dana Reed, Interim City Clerk of the City of Vernon, do hereby certify that the foregoing Resolution, being Resolution No. 2013-13, was duly passed, approved and adopted by the City Council of the City of Vernon at a special meeting of the City Council duly held on Tuesday, January 22, 2013, and thereafter was duly signed by the Mayor or Mayor Pro-Tem of the City of Vernon. Executed this day of January, 2013, at Vernon, California. (SEAL) Reed, Interim City Clerk - 5 - EXHIBIT A AGREEMENT FOR CONTINUATION AND UPGRADE OF DEDICATED INTERENT ACCESS SERVICES This Agreement for Continuation and Upgrade of Dedicated Internet Access Services (the "2013 Continuation Agreement' and/or the "Agreement' is made as of , 2013 (the "Effective Date"), by and between the City of Vernon, a California charter city and municipal corporation (the "City") and Broadband, LLC, a wholly owned subsidiary of Bandwidth.com, Inc., ("Broadband" together with City, the "Parties"). WHEREAS, the City and Bandwidth.com, Inc. powered by Qwest `Bandwidth.com" are parties to a written Service Agreement executed by the City on May 19, 2008, and memorialized under City of Vernon Resolution No. 2011-61pursuant to which Bandwidth.com provided the City with dedicated Internet access services at a monthly recurring rate for a service Term of one year; and WHEREAS, the City and Bandwidth.com are parties to a written Continuation Agreement executed by the City on July 13, 2009, under which Bandwidth.Com provided the City with dedicated internet access services at a fixed rate for a Service Term of one additional year; and WHEREAS, the City and Bandwidth.com are parties to a written Continuation Agreement executed by the City on April 19, 2011, under which Bandwidth.com provided the City with dedicated internet access services at a fixed rate for a Service Term of one additional year; and WHEREAS,Bandwidth.com formed Broadband on or about April 1, 2012 , and, among other things, assigned to Broadband the Services Agreement, as amended by the Continuation Agreements; and WHEREAS, the parties desire to enter into a twenty four (24) month commitment under which Broadband will continue to provide dedicated internet access upgraded services for a fixed monthly rate; and WHEREAS, the City is a public entity subject to certain laws requiring disclosure of public records to members of the public, and the Agreement between the Parties, and this 2013 Continuation Agreement, are records that are subject to those disclosure laws. NOW, THEREFORE, for good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties to this 2013 continuation Agreement agree as follows: 1. Broadband shall provide, in accordance with the terms of this 2013 continuation Agreement, the Services described on Exhibit A, which are attached and incorporated by this reference, at the monthly recurring charge rates and new service speed upgrade to 100 Mega bits per second commonly known as 100 Mbps GE, as described on Exhibit A, for a Service Tenn of twenty four (24) months beginning on the Service Activation Date as defined in the applicable Terms and Conditions. 2. The Parties agree that the Service Agreement and this 2013 Continuation Agreement may be disclosed to the public notwithstanding the original terms of the Agreement. This Section 2 shall not terminate or expire, and shall survive the expiration or earlier termination of this Continuation Agreement. 3. This 2013 Continuation Agreement is executed in duplicate originals, each of which is deemed to be for all purposes. 4. Force Majeure. Neither party shall be considered in default of any of its obligations under this Agreement when a failure of performance shall be due to an uncontrollable force. The term "uncontrollable force" shall mean flood, earthquake, storm, fire, lightning, epidemic, war, riot, civil disturbance or disobedience, federal, state, or municipal action, statute, ordinance, or regulation, embargoes of the United States Government or any other government, which by exercise of due diligence such party could not reasonably have been expected to avoid and by exercise of due diligence has been unable to overcome. Either party rendered unable to fulfill any of its obligations under this Agreement by reason of an uncontrollable force shall give written notice within five (5) business days of such fact to the other party and shall exercise due diligence to remove such inability with all reasonable dispatch. 5. Arbitration and Venue. Any dispute, clahrn or controversy arising out of or relating to this Agreement or the breach, termination, enforcement, interpretation or validity thereof, including the determination of the scope or applicability of this Agreement to arbitrate, shall be determined by arbitration in Los Angeles, California. The arbitration shall be administered by JAMS pursuant to its Streamlined Arbitration Rules and Procedures. The arbitrator shall be a retired judge. All decisions of the arbitrator shall be in writing, and the arbitrator shall provide written reasons for their decision. The arbitration decision shall be final and binding on the Parties. Judgment on the award may be entered in any court having jurisdiction pursuant to this Agreement. This clause shall not preclude Parties from seeking provisional remedies in aid of arbitration from a court having jurisdiction pursuant to this Agreement. The exclusive jurisdiction and venue under this Agreement shall be the Superior Court of California, Los Angeles County. 6. The provisions of this 2013 Continuation Agreement and including Exhibit A shall constitute the entire agreement of the parties with respect to the subject matter herein and shall supersede any other Agreement, understanding, or arrangement, whether written or oral, between the parties in conflict therewith respect to the subject matter hereof, provided, however, the Agreement shall continue in full force and effect except as modified by the terms of this 2013 Continuation Agreement. 7. All terms not otherwise defined herein shall have the meaning ascribed to such terms in the Agreement. IN WITNESS WHEREOF, the parties have signed this Continuation and Upgrade Agreement as of the date stated in the introductory clause. City of Vernon Name: William Davis Broadband, LLC (a wholly owned subsidiary of Bandwidth.com, Inc.) By: Name: Title: Mayor Title: By: Name: Title: Dana Reed, Interim City Clerk APPROVED AS TO FORM: Nicholas George Rodriguez, City Attorney EXHIBIT A Services and Rates Prepared For: City of Vernon Upgrade Service Address: A Location: 4305 Santa Fe Avenue t 1 Vernon CA 90058 Valid Until: August 31, 2012 Ceut�iryliak 1OON1'9dmrt,� ;10000 36 2 +$0OQ on a Grge'ort ,` / r, a Centurylink-100M Commit 100.00 24 $3,764.29 $400.00 on a Gige Port / Notes: Broadband 4001 Weston Parkway Cary, NC 27513 800-409-4357 supersedes any, previously quoted pricing between the Prepared By: Kelh Doty kdoty@bandwidth.com sales@broadband.com 919-439-2586 [Broadband. All Information herein is confidential and intended solely for the Customer's benefit,' The Customer shall not disclose information contained herein to any other parties. OFFICE OF THE CITY CLERK 4305 Santa Fe Avenue, Vernon, California 90058 Telephone (323) 583-8811 April 9, 2013 Broadband, LLC Subsidiary of Bandwidth.com, Inc. Attn: Kelli Doty 4001 Weston Parkway Cary, NC 27513 Re: Dedicated Internet Access Service Agreement Continuation and Upgrade Dear Ms. Doty: Transmitted herewith is a fully executed renewal agreement as referenced above, approved by City Council on January 22, 2013, through Resolution No. 2013-13. If you have any questions regarding this matter, please call Ali Nour, at (323) 583-8811 ext. 316. Very trul yours, // Deborah R.Juarez Records Management c: Carlos Fandino Ali Nour Purchasing Department Resolution No. 2013-13 Agreement No. 13-002 E�ccfwive6i Industriaf AGREEMENT FOR CONTINUATION AND UPGRADE OF DEDICATED INTERENT ACCESS SERVICES This Agreement for Continuation and Upgrade of Dedicated Internet Access Services (the "2013 Continuation Agreement" and/or the "Agreement" is made as of January 22 2013 (the "Effective Date"), by and between the City of Vernon, a California charter city and municipal corporation (the "City") and Broadband, LLC, a wholly owned subsidiary of Bandwidth.com, Inc., ("Broadband" together with City, the "Parties"). WHEREAS, the City and Bandwidth.com, Inc. powered by Qwest `Bandwidth.com" are parties to a written Service Agreement executed by the City on May 19, 2008, and memorialized under City of Vernon Resolution No. 2011-61pursuant to which Bandwidth.com provided the City with dedicated Internet access services at a monthly recurring rate for a service Term of one year; and WHEREAS, the City and Bandwidth.com are parties to a written Continuation Agreement executed by the City on July 13, 2009, under which Bandwidth.Com provided the City with dedicated internet access services at a fixed rate for a Service Term of one additional year; and WHEREAS, the City and Bandwidth.com are parties to a written Continuation Agreement executed by the City on April 19, 2011, under which Bandwidth.com provided the City with dedicated internet access services at a fixed rate for a Service Term of one additional year; and WHEREAS,Bandwidth.com formed Broadband on or about April 1, 2012 , and, among other things, assigned to Broadband the Services Agreement, as amended by the Continuation Agreements; and WHEREAS, the parties desire to enter into a twenty four (24) month commitment under which Broadband will continue to provide dedicated intemet access upgraded services for a fixed monthly rate; and WHEREAS, the City is a public entity subject to certain laws requiring disclosure of public records to members of the public, and the Agreement between the Parties, and this 2013 Continuation Agreement, are records that are subject to those disclosure laws. NOW, THEREFORE, for good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties to this 2013 continuation Agreement agree as follows: 1. Broadband shall provide, in accordance with the terms of this 2013 continuation Agreement, the Services described on Exhibit A, which are attached and incorporated by this reference, at the monthly recurring charge rates and new service speed upgrade to 100 Mega bits per second commonly known as 100 Mbps GE, as described on Exhibit A, for a Service Term of twenty four (24) months beginning on the Service Activation Date as defined in the applicable Terms and Conditions. 2. The Parties agree that the Service Agreement and this 2013 Continuation Agreement may be disclosed to the public notwithstanding the original terms of the Agreement. This Section 2 shall not terminate or expire, and shall survive the expiration or earlier termination of this Continuation Agreement. 3. This 2013 Continuation Agreement is executed in duplicate originals, each of which is deemed to be for all purposes. 4. Force Majeure. Neither party shall be considered in default of any of its obligations under this Agreement when a failure of performance shall be due to an uncontrollable force. The term "uncontrollable force" shall mean flood, earthquake, storm, fire, lightning, epidemic, war, riot, civil disturbance or disobedience, federal, state, or municipal action, statute, ordinance, or regulation, embargoes of the United States Government or any other government, which by exercise of due diligence such party could not reasonably have been expected to avoid and by exercise of due diligence has been unable to overcome. Either party rendered unable to fulfill any of its obligations under this Agreement by reason of an uncontrollable force shall give written notice within five (5) business days of such fact to the other party and shall exercise due diligence to remove such inability with all reasonable dispatch. 5. Arbitration and Venue. Any dispute, claim or controversy arising out of or relating to this Agreement or the breach, termination, enforcement, interpretation or validity thereof, including the determination of the scope or applicability of this Agreement to arbitrate, shall be determined by arbitration in Los Angeles, California. The arbitration shall be administered by JAMS pursuant to its Streamlined Arbitration Rules and Procedures. The arbitrator shall be a retired judge. All decisions of the arbitrator shall be in writing, and the arbitrator shall provide written reasons for their decision. The arbitration decision shall be final and binding on the Parties. Judgment on the award may be entered in any court having jurisdiction pursuant to this Agreement. This clause shall not preclude Parties from seeking provisional remedies in aid of arbitration from a court having jurisdiction pursuant to this Agreement. The exclusive jurisdiction and venue under this Agreement shall be the Superior Court of California, Los Angeles County. 6. The provisions of this 2013 Continuation Agreement and including Exhibit A shall constitute the entire agreement of the parties with respect to the subject matter herein and shall supersede any other Agreement, understanding, or arrangement, whether written or oral, between the parties in conflict therewith. respect to the subject matter hereof; provided, however, the Agreement shall continue in full force and effect except as modified by the terms of this 2013 Continuation Agreement. 7. All terms not otherwise defined herein shall have the meaning ascribed to such terms in the Agreement. IN WITNESS WHEREOF, the parties have signed this 2013 Continuation Agreement as of the date stated in the introductory clause. City of Vernon WILLIAM DAVIS, Mayor MUCHW City Clerk APPRO . AS TO FORM: Nicholas George Rodriguez, City Attorney Broadband, LLC (a wholly owned subsidiary of Bandwidt .co , nc.) Name: KqD �b ff Title: V tp Date: By: I, Name: J3M4 00'VIT s11 Title: D',rttlo— A SiV&A6" Opomfianr Date: S / 10 13 Page 3 of 4 EXHIBIT A EXHIBIT A Services and Rates See attached City Of Vernon Exhibit A 2013 Page 4 of 4 Prepared For: City of Vernon Upgrade Service Address: :A Location: Z Location: 4305 Santa Fe Avenue Vernon CA 90058 Valid Until: August 31, 2012 Centurylink-100M Commit on a Gige Port Broadband 4001 Weston Parkway Cary, NC 27513 800-409-4357 Prepared By: KOH Doty kdoty@bandwidth.com sales@broadband.com 919-439-2586 Prepared For: City of Vernon Service Order Form Upgrade Service Address: Valid Until: January 31, 2013 Customer Acceptance Name: Ca6p � D1 O 5rZ Signature: Date: 2��(3 Broadband.L�tLC Acceptance Name: OrL* Ha —vavt Signature: Date: •�s 1/— / 4 1 _ . -�" 1�C°°i� 1- 29-13 reporting service(s) and to rely on such credit report(s) to evaluate Customer. UPON EXECUTION OF THIS SERVICE ORDER FORM (-SOF-) BY. BROADBAND, LLC, THIS SOF CONSTITUES AN AGREEMENT BETWEEN BROADBAND, LLC AND CUSTOMER. - RATES AND CHARGES AS SET FORTH ON THIS SOF DO NOT INCLUDE APPLICABLE FEDERAL, STATE, OR LOCAL TAXES, AND ALL USE, SALES, COMMERCIAL, GROSS RECEIPTS, PRIVILEGE, SURCHARGES, OR OTHER SIMILAR TAXES, LICENSE FEES, MISCELLANEOUS FEES, AND. SURCHARGES, FOR WHICH CUSTOMER IS RESPONSIBLE. Termination by Customer during any applicable Service Term (as defined In the applicable Terms and Conditions) shall be a Default (as defined in the applicable Terms and Conditions) and will result in liquidated damages as set forth in the applicable Terms and Conditions. - By its signature below, Customer certifies that it has reviewed and agrees to be bound by (1) the applicable Terms and Conditions for all Services listed on this SOF, which are posted at: www.broadband.com/legal and (ii) the Acceptable Use Policy posted at: lyww.broadband.com/­legal, all of which are fully incorporated herein by reference. Customer Acceptance Name: l SignaturiE tt/J Date: �3 Broadband, LLC Acceptance Name: 9«* VNam&v+ , Signature: Date: 1 ,2.9•13 Data Installation Guide • Customers ordering a T3 or NxT1 should expect Installation to occur within an average 30-45 business days from the date of order submission by Broadband to the underlying Carrier,; • Customers ordering MPLS, DS3, OCx and Collocation service solutions should expect installation to occur within an average of 60-90 business days from thedate of order submission by Broadband to the underlying Carrier(s). • All order submission will occur only after a completed contract has been presented and received by Broadband and the Customer has been approved for any/all applicable credit.. • It is important to understand that the average times to Installation presented above are based on industry standards and Broadband experience. Individual circumstances may dictate that these installation timeframes could be shorter or longer than the aforementioned averages. • Orders may be expedited, and are contingent upon Carrier capability and acceptance. A one-time non -recurring expedite fee will be assessed on a Customer's invoice. However,. payment of this fee by the Customer does not guarantee a specific tlmeframe or completion date. • Throughout the Installation process a Customer will work with Broadband Installation Specialists and Activation Engineers. The Installation Specialist will manage the installation process up to Service Activation and is responsible for interacting with the Carrier to ensure all milestones are met, escalations and confirming with the Carrier and Customer that contracted service is provisioned correctly. The Activation Engineer is responsible for activating and verifying service. In addition, a web portal is available to monitor installation progress. To properly set expectations, the following general tlmellne and Customer requirements. are being provided for reference. Day 1-3: .Order is placed with the Carrier Broadband will place the order with the underlying Carrier for Data service. The following requirements must be met by the Customer prior to order placement: Basic Requirements: • Accurate address including suite number and onsite phone number • Valid onsite contact with appropriate phone number • Main point of entry (MPOE).location where the Local Exchange Carrier (LEC) will deliver service the building (I.e. basement on first floor) • DMARC location, the actuallocation within the building where the service Is to be delivered (i.e. suite 100) • Number of IPs desired and completed IP justification form If required by the Carrier Broadband is not responsible for extending the circuit to the DMARC location unless the extension has been explicitly ordered and Is listed as a line Item on the Broadband Service Order Form (SOF). Unless the DMARC extension is listed on the SOF thecircuit will only be delivered to the MPOE (as. determined by the LEC) and any extension is the sole responsibility of the Customer., In general, any changes to the above information or to the service order during the installation process could result In delays and additional fees. After the order is placed with the Carrier a Broadband Installation Specialist will contact the Customer point of contact on record and complete an introduction call to review the ordered service solution, address, contact information, and will confirm the Customer has access to the customer portal. _ Day 4-9: Carrier places order with Local Exchange Carrier (LEC) The Installatlon Specialist will ensure the Carrier has initiated the design an engineering of the circuit so the order can be passed to the LEC. The LEC will then begin the design and engineering of the local loop. Day 30-20: Installation Date (Firm Order Commitment Date) Established The LEC will provide a Firm Order Commitment (FOC) date for installation of the local loop. At this time, if a FOC date has not been established the reason for delay will be relayed to the Customer, Day 21-30: Local Loop is installed (Firm Order Commitment Date) A technician from the LEC will Install the local loop to the service location. The following requirements must be met In order for the technician to complete Installation: . Requirements: • Acustomer contact must be onslte to allow the LEC technician access to the location and telco closet as applicable for an entire business day Day 31-45: Service Activation After the local loop has been Installed and the LEC has tested and accepted with the Carrier, the Installation Specialist will schedule an activation appointment with the Customer. The following requirements must be fulfilled prior to the activation appointment: Requirements: • Space and power must be allocated Jar all equipment components applicable to Data service and any necessary mountingboards or racks shall be provided by the Customer • Sufficient power outlets must be ovallablefor the power unit which requires a standard 120VAC plug. The power outlet must not be overloaded and must be within 6' of the Data Router • Any DMARC extensions not ordered through Broadband must be complete- • All LAN devices and the Data Router must be wired/connected— Broadband does not provide patch cables • The Data Router requires an operating environment with temperature ranges between 35-85° F and humidity of less than 90%, non - condensing - - • The environment must be free of excessive dust • Customer must call in to Broadband at the scheduled time of the activation, appointment The Broadband Activation Engineer will bridge the Carrier on the phone with the Customer and conduct testing to ensure Data service is working properly. Day 60: - Service Activation - DS3's/OCX's/Ethernet/Co/ocotion/MPLS DS3 and OCX Solutions have an installation Interval of 60-90 business days. Actual installation timeline will vary as these solutions may require build outs, special equipment, or other special requirements from the Carrier, LEC, and the Customer. The following Data Solutions. may have additional requirements and specifications: CO -LOCATION In order to avoid any delays, it Is the Customer's responsibility to Inform Broadband prior to order placement on what floor their equipment is located. Customers needs to work with their existing vendors (hosting company / cross connect provider) to determine where the circuit should be terminated and how the circuit shall be provided (i.e. open port on MPOE, open port on Carrier POP, channel on existing facility). In some cases, a CFA/LOA will needtobe provided by the Customer. In addition, the Customer is also responsible for ordering the appropriate cross -connect from the MPOE to their equipment. When purchasing an Ethernet solution from a Carrier, it Is the Customer's responsibility to ensure that the Carrier has facilities going to the Customer's floor. The Customer is responsible for extending this service either from the MPOE or the Telco closet on their floor to their suite if desired, MPLS The Customer must work with Broadband on an implementation plan to ensure the appropriate sites are Installed In the order of importance,: Customer must also provide their private IP addressing scheme and routing requirements. If the Customer Is getting voice, their bandwidth requirements for voice across this network must be understood and provided to Broadband along with QOS requirements so the appropriate settings are implemented on the Carrier's network, Billing Billing for Data Service will begin no later than two (2) business days after service is deemed ready for Billing and Invoicing by Broadband. Customer failure to promptly schedule and activate the circuit will result In billing beginning before service can be utilized by the Customer. In addition, the Customer is solely responsible for canceling any service with previous Carriers and for updating any email or web hosting IP addresses with the current. provider. Broadband does not support email or web hosting applications but can updateany email or DNS records once the activation appointment has been completed. Multi -Site Solutions Multl-site solutions such as MPLS are billed siteby site and not when all sites are installed. If all sites are ordered at the same time, - each site will be billed as they are installed, tested, and accepted by the Carrier, regardless of whether Customer has completed all necessary steps to activate Service or whether other sites In the MPLS network are ready for activation. Move Orders In the event the Customer wishes to move service to anew location Broadband must be notified by an authorized contact by emalling sunoort9b Broadband. coma minimum of sixty (60) business days prior to the move. Broadband will coordinate the move of services once the new location is secure, has power, has a backboard or rack for. equipment, and anew contract with Broadband has been signed and processed. Please note that Customers that do not have a minimum of twelve (12) months left on their existing contract will be re -termed for one (1) year upon completion of the move. The general timeframe for Data service move orders Is the same as the timeline noted above. - Termination Upon termination of the Service Agreement and/or the Service(s) not due to default, Broadband I.I.C. will disconnect, or will cause to be disconnected, the Service(s) if notified by the Customer In writing via email to support@ broadband.com with no less than forty calendar (40) days notice prior to termination of the Agreement and/or Service(s). _ Customer Care & Support Contact Information • Phone: 800-409-4357 • Email: su000rt(WEroadband corn • Crillne portal: htto://Broadhand.com/oortal Sales Contact Information • Please contact your sales representative directly or email sales at sales@broadband.com Customer Acceptance Customer acknowledges that the preceding installation timeline Is provided as a general timellne only and that Broadband does not guarantee any specific date or timeframe for Installation. Customer has read all of the requirements and specifications for Data service Installation. Customer further acknowledges that failure to meet any requirement or specification may result in delays In the Installation process. Customer further acknowledges that Billing/Invoicing for Data Service(s) will begin no later then two 12) business days after service Is deemed ready for activation by Broadband and that Multi -site solutions such as MP15 are billed site by site and notwhen all sites are Installed. By signing below, Customer signatory certifies that (s)he is an officer or certified representative of the above listed Company authorized to enter into a binding agreement(s) on behalf of said company and affirmed by seal below as of the date below. Customer Acceptance I understand my Installation responsibilities Name: Signature/' Date: Broadband. LLC Acceptance Name: &eir A A3an Signature: Z4 � — Date: 1- 27 - 13 �- C�/� inn id .c om Bandwidth.com Dedicated Internet Access (Circuits/T1/DSxAx/0Cx, Ethernet, etc., & DSL) Service Agreement - Terms and Conditions This Service Agreement (the "Agreement') is between Bandwidth.com, Inc. ("Bandwidth.com") and the Customer. Services provided are based on the Terms and Conditions contained herein and are subject to change with updated versions of this document available for viewing and download on Ittia://www.bandwidth.wm/contgat/ egal, Updated versions of this document will take effect on the first date of the month following posting of the updated version, with updated versions identified with the month and year they become effective. Customer should therefore check the site regularly for updated versions. Customer accepts said. Terms and Conditions, as acknowledged by signature on the relevant Service Order Form ("SOF'7, and agrees to be bound by them. - 1. Service Provided. Provided that Customer is not in default of its obligations stated herein, Bandwidth.com shall provide Customer with the Service ordered in the Bandwidth.com Service Order Form for the Service Term. Customer is solely responsible to obtain, use and operate any equipment not provided by Bandwidth.com that may be used in association with the Service. If Customer has leased Customer Premises Equipment ("CPE") from Bandwidth.com, (i) Bandwidth.com shall provide Customer with access to Bandwidth.com CPE for the length of the Service Tenn, (ii) if Customer installation is required, then the Customer must install Bandwidth.com CPE in accordance with instructions provided by Bandwidth.com (or its third party vendor), (iii) Bandwidth.com CPE. must be used solely for the purpose of Service utilization. Customer acknowledges and agrees that Bandwidth.com retains title to its CPE at all times. Customer is solely responsible to obtain, use and operate any equipment not provided by Bandwidth.com that may be required in association with the Service. 2. Service Availability. Service is available throughout the Service Term, except in the case of scheduled maintenance of the Bandwidth.mm network and/or its underlying carrier's network. Bandwidth.com will use commercially reasonable efforts to provide prior notification via electronic mail ("email") to Customer regarding any scheduled maintenance of Service. Bandwidth.com may interrupt its provision of Service for unscheduled emergency maintenance without notice to Customer or Customer's customers. 3. Service Activation. The Service Activation Date shall be two (2) business days after Service is deemed ready for activation by Bandwidth.com. Bandwidth.com recognizes that Service is ready for activation after receiving confirmation from the underlying carrier that the Service is ready to be activated and after Bandwidth.com has notified Customer that the Service is ready for activation. The Service Activation Date will be used for the purpose of determining the start of the Customer's Service Term and Billing and Payment Schedule, said Schedule being defined in Section 9. Bandwidth.com has sole discretion in determining the Service Activation Date as defined above regardless of whether Customer has completed all necessary steps to activate Service. - 4. Service Agreement Term and Service Term., The initial Service Agreement Term shall beat least one (1) year and up to three (3) years from the Effective Date of the unique, or any, Service Order Form(s) signed by Customer, with the specific initial Term of the Service Agreement as stated on each such Service Order Form. The term of the Service Agreement will automatically renew for successive one (1) year periods unless tenninafed in writing by Bandwidth.com or by Customer pursuant to the Termination Section of this Agreement at least forty (40) days prior to the. expiration of the then existing Term of the Service Agreement. The initial Service Term for the, or any, specific Bandwidth.com Service(s) provided to Customer shall be at least one (1) year and up to three (3) years from the Service Commencement Date depending on ttie Service Tenn stated on the unique, or. any; Service Order Form(s) signed by Customer. Upon expiration of a Service Term for a particular Service(s), the Service Tenn will.automatically renew for successive one (1) year periods unless terminated in writing by Bandwidth.com or by Customer pursuant to the Termination Section of this Agreement at least forty (40) days prior to the expiration of the then existing Service Tem. When the Term of the Service Agreement expires or is terminated, existing Services continue in effect for the remainder of the Service Term(s) and will continue to be governed by the Agreement. In the event of automatic. renewal, Bandwidth.com reserves the right to: (i) maintain the same prices and rates for the Service(s) as stated on affected Service Order Form, or (ii) Terminate the Service(s) as stated on affected Service Order Form. 5. Service Support. Bandwidth.com provides support for the Services as described at www.bandwidth.com/contenVsuoporr, as guaranteed by the applicable. Service Level Agreement ('SLA'7, posted at www.ba t wiidth.com/contcnUletat., BANDWIDTH.COM DOES NOT SUPPORT CUSTOMER SERVICES. BEYOND. THE BANDWIDTH.COM POINT OF.DEMARCATION; DEFINED AT W W W.BANDW IDTH.COM/CONTENT/SUPPORT'.: 6. CPE Rental Maintenance, Support,. and Repair. If Customer has rented CPE from Bandwidth.com, then Customer shall allow Bandwidth.com reasonable access to the CPE as required to provide Service ordered by Customer. Equipment provided for service may be new or recertified. All CPE and CPE. provider service purchased from Bandwidth.com is subject to the terms and conditions set forth in the Manufacturer's or Publisher's warranty, end -user license, or agreement applicable to such CPE or CPE provider service, with no warranty of any kind from Bandwidth.com. Customer shall reimburse Bandwidth.com, on a time and materials basis as documented in an invoice, for the entire cost to repair and/or replace CPE in the event of (a) misuse,, (b) failure to exercise reasonable care, (c) altering original Bandwidth.com configuration, (d) damage, BANDWIDTH.COM, INC. Proprietary Information — Reslrlcled & Confidential Page I April 2009 - Bandwidth.com DIA Terms and Conditions - (e) theft, or (t) disaster. If Bandwidth.com CPE requires maintenance not caused by one of the events set out in the sentence above, Bandwidth.com or its agents shall either arrange to repair the CPE at Customer's premises or ship an equivalent pre -configured replacement to Customer. If replacement CPE is shipped to Customer, Customer shall return the faulty CPE to Bandwidth.com within ten (10) days of receiving the replacement CPE or pay for such CPE. Customer will net receive compensation for downtime associated with CPE replacement or repair. In addition, if Customer has rented CPE, Customer shall return (at Customer's own expense) Bandwidth.com CPE to Bandwidth.com within ten (10) days of termination. If this CPE is not returned in good working condition to Bandwidth,com Customer shall be invoiced and pay for this CPE. Should Customer terminate CPE rental prior to fulfillment of initial or renewal service term then Bmdwidth.eom may charge Customer a twenty percent (20%) restocking fee, as calculated according to the original purchase price of rented CPE. 7. CPE Purchase, All CPE and CPE Provider. Service purchased from Bandwidth.com is subject to the terms and conditions set forth in the Manufacturer's or Publisher's warranty, End -User license or agreement applicable to such CPE or CPE Provider Service, with no warranty of any kind from Bandwidth.com. Should customer receive purchased CPE that is damaged or dead on arrival Customer must notify Bandwidth.com Customer Care within ten (10) days of receipt. Returns will only be accepted on brand new factory -packaged products within thirty (30) days of the date CPE was shipped. All products most be fully complete including all original manufacturer boxes with the UPC code and packing materials, all manuals, blank warranty cards, accessories and any other documentation included with the original shipment. Products returned in used or altered condition will not be accepted. After thirty (30) days from initial product ship date, all sales are final. Customer is responsible for shipping charges to the Bandwidth.com distribution center for all products being shipped for return or exchange. Customer is responsible for all risk of loss and damage to products being shipped for return or exchange. Should Customer desire to return or exchange purchased CPE, pursuant to the above conditions, then Customer must e-mail Customer Care at customercare(dbandwidth.com to request a Return Materials Authorization (RMA). All returns and exchanges will incur a twenty percent (20%) restocking fee, as calculated amording to the original purchase price. If the RMA is in response to CPE delivered dead on arrival or damaged, and said CPE is found to be operating within manufacturer specifications upon return, said CPE shall be subject to the restocking fee outlined above. i 8. Charges for Service. The month! recurring rg y g charge(s) ('?ARC") and any non -recurring charge(s) ("NRC'0 For Service are stated in said i Service Order Form. Service charges are exclusive of applicable taxes and surcharges, including the Federal Universal Service Fund surcharge that Bandwidth.com passes on to its Customers. At its sole discretion, Bandwidth.com may require a security deposit to continue provisioning of service. i After the initial term, Bandwidth.com may increase pricing upon at least thirty (30) days written notice. At any time, Bandwidth.com may pass on to Customer any circuit rice increases from underlying carriers with at least thirty ) y rges are subject to change Y P y g rly (30 days written notice. All rates and chd immediately in the event there are mandated surcharges or taxes imposed by federal, state or governmental agencies. Notwithstanding the foregoing, in the event of any Regulatory Activity, or governmental taxation changes, Bandwidth.com reserves the right, at any time with w much advance notice as reasonably possible and without liability, to: (i) pass through to Customer all, or a portion of, any changes or surcharges directly or indirectly related to such governmental or Regulatory Activity; (ii) modify the Service, rates.(including any rate guarantees), promotions, terms - and/or conditions of this Agreement in order to conform to such action; or (iii) if such Regulatory Activity materially and adversely impairs the provision of Service under the Agreement, as reasonably determined by Bi n lv ii th.com, terminate the Agreement. ' 9. Billing and Payment. Bandwidth.com shall bill Customer for Service rendered at the rates stated in said Service Order Form. invoices shall include all applicable federal, state, and local taxes. all such taxes, and all use, sales, commercial, gross receipts, privilege, surcharges, or other similar taxes, license fees, miscellaneous fees, and surcharges, whether charged to or against Bandwidth.com, Inc., which shall be payable by the j Customer. However, if Customer provides proof of its specific tax exempt status, Provider shall not charge applicable taxes due to such exemption, i Customer shall supply Provider a valid and properly executed tax exemption certificate(s). In such cases the Customer remains responsible for, and agrees to pay, any and all remaining non-exempt charges; tax exemption status validation is solely the responsibility of the Customer and Provider will not be obligated to consider any retroactive tax exemption. Bandwidth.com shall commence billing for the monthly recurring charges and usage (the Service) on the Service Commencement Date. First and second month charges for the recurring Service(s) am billed upon Service Commencement. Where applicable, service charges for the first partial month of service will be pro -rated and billed. Call usage charges are billed after the actual calls and usage has occurred. Payments are due within fifteen (15) days of the invoice date. After fifteen (15) days of non-payment, all fees will accrue interest at a rate of one and one-half percent (1.5%) per month or any part thereof, or the highest rate allowed by applicable law, and customer shall pay all collection costs incurred by Bandwidth.com (including, without limitation, reasonable attorney's fees). Some Customers installed prior to two -thousand -and -eight (2008) may be subject to payment terms whereby payments are due within thirty (30) days from the invoice date; Bandwidth.com reserves the right to amend said Customers to a fifteen (15) day payment term should they fail to make satisfactory payments pursuant to their current account payment term. At any point beyond provided invoice due date, where Customer has failed to make satisfactory payment as so judged by Bandwidth.com; then Bandvvidth.com may give Customer written notification, by email, that Customer has committed a material breach of the Agreement due to non-payment. Said notification will be provided five (5) business days prior to Service suspension or termination. Customer must pay all outstanding charges, within said notice period, to avoid suspension or termination of Service. If Service is terminated due to non-payment, then the Termination fees described in the Material Breach Section shall apply. In its sole discretion, Bandwidth.com may: (i) require a security deposit to continue the provisioning of Service(s) if Customer's approved level of credit is deemed insufficient; (ii) change payment terms, billing cycle, and/or Due Date; (iii) demand immediate payment by wire or other means and discontinue Service(s) without notice should Provider determine Customer's usage exceeds their approved level of credit; (iv) immediately block Customer's Service(s) if a Customer's pre -paid balance is depleted or is at a level that cannot cover Customer's estimated traffic during the time required for the Customer to replenish their prepaid balance, or if Customer refuses to make any requested payments.. Bandwidth.com retains the right to bill, including any amended or connoted billing, for the Service(s) for a period of up to twelve (12) months, commencing from the date the billed Service(s) were provided to Customer. Bandwidth.com shall retain such billing rights for this twelve (12)month period notwithstanding any prior billing to Customer for the same period(s) and regardless of any otherwise conflicting billing conditions in this Agreement. Customer agrees that for the duration of this twelve (12) month period, Bandwidth.com shall not be deemed to have waived any rights with regard to billing for the provided Service(s) that are subject to this period, nor shall any legal or equitable doctrines apply, including estoppel or Inches. Page 2 BANDif7DTH.COM, INC Proprietary Information -Restricted & Confidential April 2009 Bandwidth.com DIA Terms and Conditions - 10. Billing Disputes. In the event Customer disputes any invoiced charges, Customer shall pay in full all charges invoiced by the Due Date and submit written notification in the form of an email sent to customercurenbandwidth.com, with "Notice of Billing Dispute" in the subject line of the email. Such email notification must include the Customer's contact information, the specific dollar amount in dispute, detailed supporting reasons for the dispute, and any supporting documentation if available. Bandwidth.com shall respond to Customer, in writing, within thirty (30) calendar days of receiving a dispute notification from Customer. Any dispute resolved in favor of Customer shall be credited w appropriate on the next available invoice. In the event that any disputed amounts are deemed to be correct as billed and in compliance with this Agreement, Customer shall be notified in writing that the charges have been deemed valid and legitimate, and the dispute will be considered resolved by both parties; in such cases, if there should be any amount due from Customer related to the dispute, then all such amounts shall be due and payable immediately. Provider reserves the right to deny or delay any and all billing disputes and/or credits if the Customer's account is in arrears or otherwise not in good standing. 11. Resumption of Service. if Customer requests that Service be restored after a suspension or termination, Bandwidth.com has the sole and absolute discretion to restore such Service and may condition restoration upon satisfaction of such conditions as Bandwidth.com determines necessary for its protection, including requiring Customer to execute a new agreement, pay all past due invoices in full, pass Bandwidth.com's credit approval, and/or make advance payments. New nonrecurring charges also may apply to restore Service. 12. Additional NRC (if applicable). In addition to the standard NRC listed above, the following NRC, if applicable, will apply Changes of IP Addresses: $100.00 Service Reinstatement Fee: S200.00 plus any charges imposed by. underlying carrier(s) Missed Appointment Fee: $200.00 Rejected. Credit Card/Unpaid Check: $40.00 (or legal limit) . Relocation Fee: Dependent: upon address Upgrade Charge: Dependent on specific upgrade Downgrade Charge: Dependent on specific downgrade Inside Wiring The availability of inside wiring installation is dependent upon a number of factors, including but not limited to service address and LEC availability. Any inside wiring provided by Bandwidth.com's underlying carrier(s) may incur additional fees to the charges listed in the Service Order Form. Any request for inside wiring or wiring extension for this service will be provided on a best -effort basis only. In many cases, the customer's Local Exchange Carrier (LEC) will not extend wiring beyond the Minimum Point of Entry ("MPOE") as determined by the LEC. In all suchcases it will be the customer's responsibility to provide any needed internal wiring or extensions (and required conduit, facilities, power, etc) to the circuit required to provision service unless the customer has EXPLICITY otherwise ordered this service from Bandwidth.com. Special Construction Charge When a Customer's location has insufficient facilities needed to support the Service, it will be necessary for the underlying carrier(s) to add facilities which may require an additional "special construction charge." In the event this occurs, Bandwidth.com will notify the Customer, via email, of the cost of these additional special construction charges, if available and if any, as well as the estimated time to complete the work. The Customer must, via email, agree to pay these additional special construction costs within three (3) business days, 'If Customer fails to do so, Bandwidth.com will cancel the order for lack of facilities and the Agreement will terminate without liability. 13. 1P Addresses. Customer acknowledges that Bandwidth.com retains title at all times to the IP addresses assigned to Customer in connection with the ordered Service. Upon IP address reassignment or expiration, cancellation or termination of the Agreement, Customer shall relinquish any IP addresses or address blocks assigned to Customer by Bandwidth.com or its underlying carrier(s) and shall perform all acts reasonably requested by Bandwidth.com to return to Bandwidth.com fulluse of such IP addresses and address blocks, 14. Material Breach. Bandwidth,com or Customer may terminate this Agreement and the Service(s) provided hereunder in the event of a material breach that is not cured within thirty (30) days following the delivery of written notice specifying said breach, except in the case of serious material breaches, so judged by Bandwidlh.00m. Such notice from Customer must be in the form of an email sent to customercare a bandwidth com, with "Notice of Material Breach" in the subject line of the email and Customer's contact information and detailed explanation, including supporting documentation if available, in the body of the email. Such notice from Bandwidth.com shall be in the form of an email to the Customer. In the event of an uncured material breach by Bandwidth.com, the Agreement and Service(s) shall be terminated without further liability to the Customer, however, in such cases Customer shall remain responsible for: (a) charges for Service(s) actually and properly received prior to the date of Breach notification, (b) one hundred percent (100%).of the past due balance at the time of termination, and (c) any non -recurring charges originally waived byBandwidth.com. In the event of an uncured material breach by Customer; such as early termination of this Agreement, the following termination fees shall apply: (a) charges for Service(s) actually and properly received prior to the date of Breach notification, (b) the total of monthly minimum commitments for all components of the Service(s) for the remainder of the Service Order Term(s) and any additional early Termination fees included in any and all relevant Service Order Form(s), (c) one hundred percent (100%) of the past due balance at the time of termination, and (d) any non- recurring charges originally waived by Bandwidth.com.. 15. Termination. Upon termination of the. Service Agreement and/or the Service(s) not due to a material breach, Bandwidth.com will disconnect, or will cause to be disconnected, the Service(s) if notified by the Customer in writing via email to tustomereare0bandwidtn com with no less than forty calendar (40) days notice prior to termination of the Agreement and/or Service(s). In all such cases, Customer retains the sole responsibility for RANDW/DTN.COM, INC. Proprietary Information & Confidential 3 April 2009 Bandwidth.com DIA Terms and Conditions - notifying Bandwidth.com of any and all requests for termination or disconnection of Service(s), including but not limited to the porting out of billable telephone numbers (also refered to as "DIDs"), whether port outs are known or unknown by Customer; and, Customer remains responsible for all billable charges related to terminated Service(s) until Bandwidth.com is notified in waiting as specified. Any request by Customer for cancellation or termination at any time within the Service Agreement Term and/or Service Term set forth in this Agreement, including: prior to installation, or at any time prior to the Service Commencement or Activation Date, or in the case of early termination by Customer, will be considered a Material Breach by the Customer and shall be subject to the applicable Material Breach provisions as outlined in the Material Breach section of this agreement. In the event Bandwidth.com determines, in its sole discretion, that Customer's ongoing use of Service(s) or the specific method or technology utilized by the Customer places Bandwidlh.com's network, other customers, partners or the overall businesses of each injeopardy, Bandwidth.com reserves the right to terminate Service(s) immediately without notification. 16. Acceptable Use Policy. All use of Servicemust comply with Bandwidth.com's Acceptable Use Policy ("AUP"), which is posted at www bandwidth.com, and is incorporated herein by reference. By accepting Bandwidth.com Service, Customer agrees to comply with this AUP and any subsequent modifications thereto. Bandwidth.com reserves the right to modify this AUP from time to time, effective upon posting the AUP as modified at the URL shown above. Violation of the AUP shall be considered a material breach of this Agreement pursuant to Section 14. 17. Dispute Resolution Process and Applicable Law. (a) It is the mutual desire of the parries to promptly and fully resolve any dispute arising in connection with this Agreement in good faith, confidentially, and informally with minimal transaction costs and no public statement may be made by any party regarding any such dispute. If either party determines that the dispute cannot be resolved informally, then such party shall initiate an escalation process by giving written notice C'Escalation Notice") to the other party. Each party shall time one executive as its representative, to be a person knowledgeable of the subject matter in dispute and someone with authority to discuss the dispute (hereinafter the "Officers"). The Officers shall meet in person or by conference call, together with any persons assisting them, within fifteen (15) days after delivery of the Escalation Notice. All negotiations conducted by the Officers are confidential and shall be treated as compromise and settlement negotiations for purposes of the Federal Rules of Evidence and any state rules of evidence. The Officers -shall conduct such additional meetings as they deem necessary to exchange relevant information, will appoint staff to engage in resolution of any disputed facts, and will attempt to resolve the dispute. Should the Officers be unable to resolve the dispute within such fifteen (15) days, or within such additional time as the parties may otherwise agree to in writing, either party may demand mediation, whereupon the parties shall,in good faith, mediate the dispute no later than thirty (30) days after such demand through the services of a mutually selected mediator, the cost of whom shall be home equally by the parties, at a date and location selected by the mediator after consultation with the parties. If the dispute is not resolved after applying the escalation procedures set forth above, lie parties agree to waive any right to trial by jury in any judicial proceeding arising under or related to the subject matter of this Agreement, and agree to submit all controversies, claims and matters of difference to arbitration according to the commercial rules and practices of the American Arbitration Association ("AAA"). Arbitration hereunder shall occur within sixty (60) days of the date of submission before a single neutral arbitrator having significant experience in the subject matter of this Agreement and who will selected in accordance with AAA rules. Arbitration proceedings shall take place in Wake County, North Carolina. Discovery shall be permitted, including the use of interrogatories, requests for admission and production of domments.and depositions. If the amount claimed to be in dispute is less than $500,000 all applicable expedited procedures of the AAA shall apply. The arbitrator's fees and costs of the arbitration shall be home by the party against whom the award is rendered, except that if the arbitrator issues a split decision, granting partial relief to both parties, the arbitrator shall equitably allocate the arbitrator's fees and other costs. Each party shall pay its attorney's fees related to any dispute related to this Agreement. The arbitration award shall be final and binding on both parties of this Agreement, shall not be subject to any appeal and shall be enforceable in any court of competent jurisdiction. (b)This Agreement shall be governed by, construed under and enforced in accordance with the laws of the State of North Carolina without reference to its choice of law principles. In the event any party brings a civil action or initiates judicial proceedings of any kind related to this Agreement (except for actions to enter or collect on judgments), the parties consent to the exclusive personal jurisdiction and venue of the courts in Wake County, North Carolina. 18. Limitation of Liability. EXCEPT AS PROVIDED IN SECTION 19, IN NO EVENT WILL BANDWIDTH.COM OR CUSTOMER BE LIABLE FOR ANY INDIRECT, INCIDENTAL, PUNITIVE OR CONSEQUENTIAL DAMAGES (INCLUDING, WITHOUT LIMITATION, LOST PROFITS) ARISING OUT OF OR IN RELATION TO THE SERVICE(S), CPE, AND/OR ANY PRODUCTS OR SERVICE PROVIDED BY THIRD PARTIES UNDER THIS AGREEMENT. BANDWIDTH.COM'S MAXIMUM LIABILITY UNDER THIS AGREEMENT IS LIMITED TO SERVICE CREDITS NOT TO EXCEED THE FEES PAID TO BANDWIDTH.COM BY CUSTOMER FOR THE SERVICE PROVIDED. 19. Indemnity. Customer shall indemnify and hold harmless Bandwidth.com, its Officers, Employees, Agents, and Affiliates from and against any and all alleged or actual losses, costs, claims, liability of any kind, damages (including to any tangible property or bodily injury to or death of any person), or expense of whatever nature, (including reasonable attorneys' fees) to or by any third party, relating to or arising from (a) the use of the Service provided to Customer, whether or not Customer has knowledge of or has authorized access for such use, (b) any damage to or destruction of CPE not caused by Bandwidth.com or its agents, and (c) any material breach of this Agreement by Customer. Customer has the sole slid exclusive responsibility for the installation, configuration, security, and integrity of all Customer. systems, equipment, software, and networks (the "Customer Equipment') used in conjunction with or related to the Service(s) provided by. Bandwidth.com. Customer therefore shall indemnify and hold harmless Bandwidth.com from and against any actual or alleged losses, costs, claims, liability of any kind, damages, or expenses or fees (including reasonable attorneys' fees) on the part of or which may be incurred by Customer or a third -pally relating to or arising from the use or operation of the Customer Equipment. Customer's indemnification in this subsection includes any alleged or actual losses or claims in connection with unauthorized access to or use of the Service(s) by any third -party through Customer Equipment, regardless if such unauthorized access is unintentional, accidental, intentional or by fraud and regardless of whether Customer had knowledge of such unauthorized access. In all such cases of unauthorized access Page 4 BANDWIDTH COM, INC. Proprietary Information -Restricted A ConJldendai April 2009 - Bandwidth.com DIA Terms and Conditions - Customer agrees that it retain full and sole responsibility for any and all charges for the Service(s) provided by Bandwidth.com. In the event Bandwidth.com grants Customer access, either by online access, by application programming interface (API), or access by any other means, to a service ordering/managemmt system and other related electronic tools (collectively, the "Electronic Tools"), Customer agrees that it is fully and exclusively responsible for all information accuracy, charges, costs, transactions, and activities conducted through such Electronic Tools. Customer agrees that it is fully and exclusively responsible to safeguard, monitor, manage, and maintain access to the Electronic Tools, and to only allow authorized use of the Electronic Tools to persons that Customer designates. Customer therefore agrees that it shall indemnify and hold harmless Bandwidth. corn from and against any actual or alleged losses, costs, claims, liability of any kind, damages, or expenses or fees (including reasonable attorneys'. fees) on the part of or which may be incurred by Customer, or a third -party, relating to or arising from the use or operation of the Electronic Tools. Customer's indemnification in this subsection includes any alleged or actual losses or claims in connection with unauthorized access to, use, transactions, or activity conducted through the Electronic Tools, regardless if such unauthorized access is unintentional, accidental, intentional, or by fraud, and regardless of whether Customer had knowledge of such unauthorized access. In all such cases of unauthorized access Customer agrees that it retains full and sole responsibility for any and all charges for the Service(s) provided by Bandwidth.com. 20: No Warranties and Customer Assumption of Risk. BANDWIDTH.COM MAKES SERVICE COMMITMENTS UNDER THE APPLICABLE SERVICE LEVEL AGREEMENT ("SLA'), SAID SLA IS INCORPORATED HEREIN BY REFERENCE. HOWEVER, BANDWIDTH.COM MAKES NO WARRANTIES, EXPRESS OR IMPLIED, FOR THE BANDWIDTH.COM SERVICE(S) (INCLUDING BANDWIDTH.COM CPE) PROVIDED UNDER TIES AGREEMENT AND SPECIFICALLY DISCLAIMS ANY WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. BANDWIDTH.COM DOES NOT WARRANT THAT THE SERVICE WILL BE LWI14 TERRTJPTED OR ERROR -FREE, OR THAT THE SERVICE WILL MEET CUSTOMER'S REQUIREMENTS OR THAT THE SERVICE WILL PREVENT UNAUTHORIZED ACCESS BY THIRD PARTIES. BANDWIDTH.COM EXERCISES NO CONTROL OVER, AND HEREBY DISCLAIMS ANY RESPONSIBILITY FOR, THE ACCURACY AND QUALITY OF ANY DATA OR CONTENT TRANSMITTED WITH THE USE OF THE SERVICE. CUSTOMER RECOGNIZES THAT BANDWIDTH.COM DOES NOT OWN THE LOCAL ACCESS CIRCUIT AND IS NOT RESPONSIBLE FOR ANY PERFORMANCE OR NON-PERFORMANCE THEREOF. CUSTOMER HEREBY EXPRESSLY ASSUMES THE RISK OF ITS OR ITS CUSTOMERS' USE OF ANY INFORMATION TRANSMITTED VIA THE SERVICE. 21. Miscellaneous. Customer acknowledges and understands that Customer is to receive the Service detailed in this Agreement and the Customer is not relying on any affirmation of fact, promise or description from any person or entity, nor any other oral or written representation other than what is contained in this -Agreement. Handwritten alterations or additions to this agreement made.by Customer will not be considered part of this Agreement. This Agreement may only be modified, or any rights under it waived, by a separate written document executed by both parties. This Agreement shall be governed by, construed under, andenforcedin accordance with, the laws of the State of North Carolina without reference to its choice of law principles. For any action or suit to enforce any right or remedy of this Agreement, (except for actions to enter or collect on judgments) the parties consent to exclusive jurisdiction and venue in the courts for Wake County, North Carolina and the prevailing party shall be entitled to recover its costs, including reasonable attorney's fees. In the event of a conflict between this Agreement and any applicable tariff, the tariff shall prevail. Customer may not assign this Agreement without Bandwidth.com's prior written consent. This Agreement shall be binding on the parties hereto and their respective personal and legal representatives, successors, and permitted assigns. If any provision of this Agreement is held to be invalid or unenforceable, the validity and enforceability of the remaining provisions of this Agreement shall not be affected thereby. By signing the unique, or any, Service Order Form, or any Attachments, Addendums, or any. other documents incorporated herein by reference. Customer signatory certifies that (s)he is an officer or certified representative of the Customer, and as such is authorized to enter into this binding Agreement. In the event. any specified -time frame or deadline denotes calendar days, it is agreed that when the last date of required action or response falls on a weekend or holiday, the action and/or deadline shall automatically extend to the next business day. Agreement headings are provided for reference purposes only. THIS AGREEMENT, TOGETHER WITH ANY ATTACHMENTS, INCLUDING ANY SCHEDULES, ADDENDUMS, PRICE LISTS, SERVICE ORDERS, TERMS AND CONDITIONS, SERVICE LEVEL AGREEMENTS, AND ACCEPTABLE USE POLICIES, WHICH MAY BE POSTED AT: W W W.BANDWIDTH.COM/CONTENT/LEGAL, AND WHICH ARE INCORPORATED HEREIN BY REFERENCE, CONSTITUTE THE ENTIRE UNDERSTANDING BETWEEN THE CUSTOMER AND BANDWIDTH.COM, INC, WITH RESPECT TO THE SERVICE(S) PROVIDED HEREIN. CUSTOMER ACKNOWLEDGES AND UNDERSTANDS THAT CUSTOMER IS NOT RELYING ON ANY AFFIRMATION OF FACT, PROMISE OR DESCRIPTION FROM ANY PERSON OR ENTITY, NOR ANY OTHER ORAL OR WRITTEN REPRESENTATION OTHER THAN WHAT IS CONTAINED IN THIS AGREEMENT AND ANY INCORPORATED DOCUMENTS. - - 22. Third Party Beneficiaries. The Parties do not intend by the execution, delivery, or performance of this Agreement to confer any benefit, direct or incidental, upon any person or entity not a party to this Agreement. - BANDIFIDTH.COM, INC Proprietary Irt/brmalion -Restricted @ ConJldmi'lol Pages April 2009 CONTRACT/AMENDMENT SIGNATURE ROUTING FORM CONTRACTOR: CONTRACT PURPOSE: Upstream Internet Access Services Contract Renewal with Broadband CONTRACT IS: ❑ FEDERAL ❑ PREVAILING WAGE ❑ COMPETIVE SELECTION & NOTICED RFP 'St COMPETITIVE BID & NOTICED INVITATION TO BID ❑ EXEMPT FROM COMPETITIVE PROCESS (APPROVAL ATTACHED) ❑ SERVICES o MATERIALS ❑ BUDGETED ❑ NOT BUDGETED TOTAL CONTRACT VALUE: $55,000 annually Charge Acet. No(s) 057.1057.500173 Amendment Value $ ❑ Contract is an Amendment to Contract No. (if Applicable) RESPONSIBLE DEPARTMENT PERSON: Ali Nour PHONE: X316 AUTHORIZATION: ❑ Approved by Council on January 22, 2013 (Check One) Resolution No. 2013-30 (if applicable) ❑ Approved by City Administrator on Note: Attach supporting documentation Amendment Approved by ROUTING SEQUENCE: (Please Follow In Order — Do not use N/A) (1) Responsible Department Person Checks substance of contract and assembles two (2) copies of Contract, required AA, insurance & bond documents, certifies compliance With Competitive Bidding and Purchasing Ordinance (2) Liability and Claims Approves insurance and sureties, if bonds required (3) Finance (Purchasing) Checks compliance with Competitive Bidding & Living Wage Ordinances And reflected in current budget (4) City Attorney Approves contract as to form, verifies bonds and insurance included (5) City Signatory Signs all copies on behalf of City (6) City Clerk Attests signatures, numbers, files contract, insurance and bonds, and transmits duplicate original to contractor (if applicable) Initials Date I w� I3 u q J 13 Rev. 2/25/13 DATE: January 22, 2013 TO: Honorable Mayor and City Council FROM: Carlos R. Fandino, Jr. �\ Director of Light & Power RE: Upstream Internet Access Services Contract Renewal with Broadband Recommendation It is recommended that the City Council find that approval of the proposed Broadband service renewal agreement in this staff report is exempt under the California Environmental Quality Act (CEQA) in accordance with Section 15061(b)(3), the general rule that CEQA only applies to projects that may have an effect on the environment. It is suggested that the City Council approve and accept the quote from Broadband, as the lowest responsive and responsible bidder and to enter into a two year contract renewal not to exceed $110,000 in total ($55,000 annually) for delivering wholesale Internet access circuit to the City's Internet system and reject all other quotes. Backaround The City's Fiber Optics based Internet access Services receives dedicated wholesale Internet circuits from two upstream service providers in order to deliver commercial Internet access services to businesses in Vernon. Our existing contract term with one of the existing providers has expired requiring the Department to secure firm monthly rates that are not subject to increases for the next 24 months. The City's Fiber Optic Internet services has been receiving dedicated connection services to Internet from Bandwidth.com since October 2005 pursuant to an agreement executed on August 4, 2005 as stated in Resolution No. 8818. On April 19, 2011, the agreement was renewed for a twelve months period as stated in Resolution No. 2011-61. Since completion of the twelve months term, the agreement has been on a month -to -month basis subject to the service provider's price increase. The Department of Light & Power solicited five Internet access service providers to deliver quotes for monthly rates. Of the five, three provided written quotes and Broadband delivered the lowest and most responsible quote, as shown below: 1. Broadband $3,764.29 2. AT&T $3,864.76 3. Towerstream $3,999.00 Broadband, a wholly owned subsidiary of Bandwidth.com, has delivered a reliable Internet access services to the City's Internet network for the past seven years. Fiscal Impact The contract renewal consists of a 24 month service commitment with Broadband at a monthly rate of $3,764.29, excluding taxes and fees and a $400 one-time renewal fee. The contract establishes a not to exceed amount of $55,000 per year. Continuation of the existing agreement with Broadband will ensure our Internet wholesale rate for the next 24 months are fixed and not subject to price increases. This service was itemized and approved in the 2012/2013 operating budget.