HomeMy Public PortalAbout2018.10.26 Idaho Regional Optical Network Master Service AtreementIR�rN
IDAHO REGIONAL
OPTICAL NETWORK
MASTER SERVICES AGREEMENT
THIS MASTER SERVICES AGREEMENT ("MSA") is made this 6th day of July, 2018, by and
between the Idaho Regional Optical Network, Inc. ("IRON"), an Idaho nonprofit corporation, (herein
referred to as "IRON") and the City of McCall, (herein referred to as Associate).
RECITALS
WHEREAS, IRON owns and operates fiber optic network infrastructure throughout Idaho,
together with such associated facilities, equipment or services, including but not limited to
switches and electronic equipment, necessary or convenient for the purpose of transporting
telecommunications traffic, and for other purposes.
WHEREAS, Associate desires to use certain IRON Services.
NOW, THEREFORE, in consideration of the terms, covenants and conditions set forth herein,
and other good and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereto agree as follows:
1. Scope of Agreement. Services shall be requested by Associate by submitting a completed
Service Order. IRON agrees to provide, and Associate agrees to purchase from IRON,
subject to the provisions herein, the Services described in each "Service Order" which are
attached hereto and incorporated by reference herein. IRON reserves the right to reject, in
its sole discretion, any Service Order, or any interconnection with a third party, at any time
prior to the written acceptance of a completed Service Order requesting service.
1.1 Service and Price Changes. Unless otherwise specified in Service Order, IRON
reserves the right: to cancel or change any service offering or alter the prices for
individual Services upon 90 days' written notice to Associate.
1.2 Additional Services. With IRON's concurrence, Associate may order additional or
different Services, and each such change or addition will be memorialized in a revised
Service Order. Each revision of Service Order will be incorporated in this Agreement
in the same manner as the original Service Order.
1.3 Other Providers. Associate acknowledges and agrees that certain Services, or
components thereof, may be offered by IRON's Associates, underlying service
providers, subcontractors or vendors.
1.4 Acceptable Use. Associate agrees to abide by the IRON Acceptable Use Policy,
attached as Appendix A.
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1.5 Non -Exclusive. This Agreement is non-exclusive and shall not prevent or prohibit
either Party from entering into similar agreements for similar services with third parties.
2. Compensation.
2.1 Payment of Compensation. Unless otherwise provided in Service Order, Associate
shall pay to IRON, the nonrecurring amounts set forth on Service Order as reflected on
the next regular invoice, as per paragraph 2.2 below, after the nonrecurring services
are completed. Associate shall continue to pay to IRON applicable monthly recurring
charges thereafter as long as the Service Order is in effect.
2.2 Payment Schedule.
2.2.1 IRON will invoice Associate on a monthly basis, in advance, for all monthly
recurring charges due under the Agreement. All other charges including usage
will be billed monthly in arrears. Payment is due upon presentation of an
invoice. Payment received within thirty (30) days after the invoice date will be
considered timely. Any charges not paid to IRON within such period will be
considered past due. If a Service Install Date is not the first day of a billing
period, Associate's first monthly invoice shall include any pro -rated charges for
the Services, from the date of installation to the start of the next billing period.
2.2.2 Associate shall be held in default if payment is not made within fifteen (15) days
of due date. If Associate defaults in the payment of any sum due hereunder,
then such unpaid amount shall bear interest at the rate of 12% annual interest
from the date due to the date of payment. In addition, if Associate defaults in
the payment of any sum due hereunder, Associate shall pay to IRON a late
charge equal to five percent (5%) of the overdue amount. Acceptance of such
late charge by IRON shall in no event constitute a waiver of Associate's default
with respect to such overdue amount, nor prevent IRON from exercising any of
the other rights and remedies granted hereunder.
3. Mutual Cooperation. Each party will cooperate with the other, and take all actions necessary
and appropriate for the connection of Associate's network with the Services provided by
IRON. Each party will take such measures as may be reasonably necessary to inform the
other party in advance of any changes in its network or practices that may affect
the other party's network or services.
4. Term of Agreement. The term of this Agreement shall be one (1) year commencing on the
date the Agreement is executed by the Parties, unless terminated earlier as otherwise
provided for in this Agreement or if found to be contrary to Idaho law. This Agreement will
renew for one (1) year each year thereafter until one Party notifies the other Party of its
intent not to renew the Agreement at least sixty (60) days prior to the end of the Agreement.
If not renewed, the terms of this Agreement will remain in effect until all Service Orders
terminate. In addition, IRON may terminate this Agreement at any time, with or without
notice, if it reasonably concludes that Customer's use of the Services is unlawful.
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5. Limitation on Resale. Associate shall not resell any Services to any "for profit" entity without
the express written consent of IRON.
6. Publicity/Trade Names. Associate shall not issue any publicity or general marketing
communications concerning this Agreement, Associate's relationship with IRON, or any
other matter concerning IRON without the prior written consent of IRON. This section
shall not apply to requests made pursuant to Chapter 1, Title 74, the Idaho Public
Records Act.
7. Continuity of Service. IRON shall use its best efforts to service and maintain the Services in
conformity with the operations and procedures set forth in its tariffs, operating manuals and
any other specifications or maintenance requirements as may be in accordance with
industry standards.
7.1 Interrupted Service. IRON shall notify Associate of any anticipated or planned
service interruption and Associate will cooperate with IRON to take appropriate
actions to restore service availability.
8. Service Interruption Remedies. If the Services are unavailable for more than ten (10)
cumulative hours during Associate's business hours of any billing period, regardless of
whether such unavailability results from the failure of equipment or facilities of IRON or from
an anticipated or planned service interruption, IRON will credit a prorated amount to
Associate's account in an amount equal to the charges which would have been charged by
IRON to Associate during the period when services or access is unavailable. This credit
shall constitute the sole available remedy for any IRON errors, interruptions or defects in the
ordering processing, provisioning or transmission of services. In no event shall IRON be
liable to any person or entity for any indirect, consequential, special, incidental actual or
punitive damages, or for any lost profits of any kind or nature, arising out of the performance
of this Agreement. An outage is considered to start when IRON is notified by Associate and
to end when Associate agrees that services have been restored.
9. Exclusion of Warranties. IRON MAKES NO WARRANTIES OF ANY KIND, WHETHER
EXPRESS OR IMPLIED, UNDER THIS AGREEMENT. IRON SPECIFICALLY EXCLUDES
AND DISCLAIMS ALL WARRANTIES INCLUDING THOSE WITH RESPECT TO THE
DESCRIPTION, QUALITY, MERCHANTABILITY, OR FITNESS FOR ANY PURPOSE OF
THE SERVICES.
10. Relationship of the Parties. This Agreement does not constitute either party as an agent,
legal representative, joint venture, partner, franchisee or employee of the other party for any
purpose. Each party shall be an independent contractor and is in no way authorized to
make a contract, agreement, warranty, or representation on behalf of the other or to create
any obligation, express or implied, on behalf of the other. The parties agree that this
Agreement does not constitute a fiduciary relationship between IRON and Associate.
11. Confidentiality. Unless required by law, the parties shall not disclose, duplicate or copy, or
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make use of this Agreement and any exhibits for any purpose other than the performance of
this Agreement, and shall treat as confidential and proprietary the terms and conditions of
this Agreement and all information supplied or disclosed to each other in connection with
this Agreement.
12. Assignment. Either party may assign its rights and/or obligations under this Agreement, or
any portion thereof, upon the written notice to the other party. Any assignee must become
obligated to the terms of this Agreement prior to said assignment.
13. Notice. Any notice under this Agreement shall be in writing and shall be delivered in person
or by public or private courier service (including U.S. Postal Service Express Mail and
Federal Express) or certified mail or by facsimile. Any notice given by certified mail shall be
sent with return receipt requested. Any notice given by facsimile shall be verified by a
facsimile confirmation. All notices shall be addressed to the parties at the following
addresses or at such other addresses as the parties may from time to time direct in writing:
If to Associate: If to IRON:
City of McCall Idaho Regional Optical Network, Inc.
216 East Park Street 950 W. Bannock Street
Suite 1100, PMB # 110060
McCall, ID 83638 Boise, ID 83702
Phone: (208) 634-7142 Phone: (208) 426-IRON (4766)
Facsimile: (208) 634-3038 Facsimile: (208) 629-0721
Any notice shall be deemed to have been given (a) actual day of delivery or refusal to accept
delivery, (b) the day of mailing by registered or certified mail, or (c) the day facsimile
transmission is verified.
14. Default.
14.1 Events of Default. The occurrence of any one or more of the following events shall
constitute a default under this Agreement:
14.1.1 Failure by Associate to make any payment or other compensation payable by
Associate to IRON when due under the terms of this Agreement; or
14.1.2 Failure by either party in performing any other term, covenant, or condition of
this Agreement upon the expiration of thirty (30) days from receipt of written
notice from the other party, or the inaccuracy in any material respect of any
representation or warranty made by either party to the other.
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14.2 Defaulting Party's Right -to -Cure. The party failing to perform shall not be deemed to be
in default if such party, prior to the expiration of said thirty (30) days, has cured such failure
as set forth in the notice of default. With respect to any non -monetary default that cannot
reasonably be cured within thirty (30) days, the default shall not be deemed to be uncured
if the defaulting party commences cure within thirty (30) days for so long as the defaulting
party is diligently prosecuting the cure thereof.
14.3 Non -Defaulting Party's Right -to -Perform. If the defaulting party fails to pay any sum of
money required to be paid by such party to a person or entity other than the non -
defaulting party or fails to perform any other act to be performed by such defaulting
party hereunder, and such failure continues for thirty (30) days after notice thereof by
the non -defaulting party, the non -defaulting party may, but shall not be obligated so to
do, and without waiving or releasing the defaulting party from any of its obligations,
make any such payment or perform any such other act on the defaulting party's part to
be made or performed as provided in this Agreement.
15. Specific Performance. Each party agrees that the other party would be irreparably damaged
if any of the provisions of this Agreement are not performed in accordance with their specific
terms and that monetary damages would not provide an adequate remedy in such event.
Accordingly, it is agreed that, in addition to any other remedy to which the non -breaching
party may be entitled, at law or in equity, the non -breaching party shall be entitled to
injunctive relief to prevent breaches of the provisions of this Agreement and specifically to
enforce the terms and provisions hereof.
16. Remedies. In the event of a default by either party, which is not corrected within the time
frame specified herein, the non -defaulting party shall be entitled to all rights and remedies
available at law or in equity, including, without limitation, specific performance of the terms of
this Agreement against the defaulting party. In addition to the foregoing, upon default by
Associate that would result in the non -delivery of Services to resale customers of Associate,
IRON shall be entitled to, but not obligated to, assume any outstanding service contracts
between Associate and any resale customers. Associate shall be obligated to cooperate in
the transfer of any of its customers to IRON.
17. Force Maieure. With the exception of payment of fees and charges due under this
Agreement, a party shall be excused from performance if its performance is prevented by
acts or events beyond the party's reasonable control, including but not limited to; severe
weather and storms, earthquakes or other natural occurrences, strikes or other labor unrest,
nuclear or other civil or military emergencies, or acts of legislative, judicial, executive, or
administrative authorities.
18. Severability. If any provisions of this Agreement shall be determined to be void by any
court of competent jurisdiction, then such determination shall not affect any other
provision of this Lease and all such other provisions shall remain in full force and effect
and shall be valid and enforceable to the fullest extent permitted by law.
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19. Indemnification. Subject to the limitations of Idaho law, including Article VIII sec. 4 of
the Idaho Constitution and the Idaho Tort Claims Act (Idaho Code section 6-901 et
seq.), each party to this Agreement hereby indemnifies and holds harmless the other
party with respect to any third -party claims, lawsuits, damages or court actions arising
from performance under this Agreement to the extent that the indemnifying party is
liable or responsible for said third -party claims, losses, damages, or court actions.
Whenever any claim shall arise for indemnification hereunder, the party entitled to
indemnification shall promptly notify the other party of the claim and, when known, the
facts constituting the basis for such a claim. In the event that one party to this
Agreement disputes the other party's right to indemnification hereunder, the party
disputing indemnification shall promptly notify the other party of the factual basis for
disputing indemnification. Indemnification shall include, but is not limited to, costs and
attorney fees.
20. Governing Law. It is agreed that this Agreement shall be governed by, construed, and
enforced in accordance with the laws of the State of Idaho.
21. Successors and Assigns. This Agreement and all terms and conditions hereof shall be
binding upon and shall inure to the benefit of all authorized heirs, successors in interest or
assignees of either party hereto.
22. Entire Agreement. This Agreement, together with all exhibits, notices, appendices and any
jointly executed written supplements hereto, represent the entire agreement contemplated
by the parties hereto. It is understood and agreed by the parties that there are no verbal
promises or implied promises, agreements, stipulations or other representations of any kind
or character pertaining to the Services between them other than as set forth herein.
23. Written Modification. No modification, release, discharge, or waiver of any provisions hereof
shall be of any force, effect or value unless in writing signed by both parties or their duly
authorized agent or attorney.
24. Waiver. No covenant, term or condition contained in this Agreement nor the breach thereof
shall be deemed waived, except by written consent of the party against whom the waiver is
claimed, and any waiver of the breach of any covenant, term or condition shall not be
deemed to be a waiver of any other covenant, term or condition herein. Acceptance by a
party of any performance by another party after the time the same shall have become due,
or failure to insist upon performance, shall not constitute a waiver by the first party of the
breach or default of any such covenant, term or condition unless otherwise expressly
agreed to by the first party in writing.
25. Counterparts. This Agreement may be executed in counterparts and upon every party having
executed a counterpart, each signed copy shall have the same force and effect as an
original document and as if the parties to the counterparts had signed the same document.
26. Attorneys' Fees. In the event of any controversy, claim or action being filed or instituted
between the parties hereto to enforce or interpret the terms and conditions of this Lease or
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arising from the breach of any provision thereof, the prevailing party will be entitled to
receive from the other party all costs, damages and expenses, including reasonable
attorneys' fees, through all levels of action, incurred by the prevailing party, whether or not
such controversy or claim is litigated or prosecuted to judgment. The prevailing party will be
that party who is awarded judgment as a result of trial or arbitration, or who receives a
payment of money or other concession or agreement from the other party in settlement of
claims asserted by that party.
27. Captions. The captions inserted in this Agreement are for convenience only and do not
define, limit or otherwise describe the scope or intent of this Lease or any provision hereof
nor affect the interpretation of this Agreement.
28. Time of Essence. Time is hereby expressly declared to be of the essence of each and
every covenant, term, condition and provision of this Agreement.
29. Additional Acts. The parties hereto agree to execute and deliver any documents or
instruments and to take any and all actions reasonably necessary to carry out any
agreement, term or condition of this Agreement, whenever the occasion may arise and
request for such action shall be made.
The parties have executed this Agreement on the date first above written.
Associate: IRON:
By:
Name: Jackie J. Aymon
Title: City of McCall, Mayor
By:
Name: Michael Guryan
Title: General Manager
Date: Date:
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