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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. IRON Master Services Agreement Page 1 of 7 Initials: 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. IRON Master Services Agreement Page 2 of 7 Initials: 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 IRON Master Services Agreement Page 3 of 7 Initials: 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. IRON Master Services Agreement Page 4 of 7 Initials: gA_ __4 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. IRON Master Services Agreement Page 5 of 7 Initials: 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 IRON Master Services Agreement Page 6 of 7 Initials: 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: c a5 a >o%a.(a/S � ORS IRON Master Services Agreement Page 7 of 7 Initials: