HomeMy WebLinkAboutAgenda Report - October 6, 2010 D-13AGENDA ITEM b0013
&J& CITY OF LODI
COUNCIL COMMUNICATION
Im
AGENDA TITLE: Authorize City Managerto Execute a Three -Year Agreement with Comcast for
High-speed Internet Service ($43,840)
MEETING DATE: October 6,2010
PREPARED BY: Information Systems Manager
RECOMMENDED ACTION: Authorize City Manager to execute a three-year agreement with
Comcast for high-speed Internetservice ($43,840).
BACKGROUND INFORMATION: On September 5, 2007, the City Council authorized staff to
purchase high-speed Internet service from AT&T on a three-year
contract at an estimated annual cost of $33,048, plus taxes and
fees. That contract will expire in December 2010.
Over the past three years, new competition has entered the Internet service market, mainly from
Comcast. In addition- to its consumer products line, Comcast offers business -class services to
organizations with more industrial -sized needs. In this case, Comcast is offering the City comparable
Internet service for less than half cf the AT&T price, at an annual savings of at least $18,000. There will
also be a one-time installationfee of $1,000 as indicated in the attached contract.
The proposed Internet service will be conducted over fiber-optic lines, the same as AT&T, and the
service level is also guaranteed, in writing, to be the same as AT&T. The City should experience no
difference in service levels by switching to Comcast.
PRICE AND SERVICE COMPARISION:
Company
,Speed/bandwidth
Use
Term-
`Cost/yr
Other
AT&T
1OMbs
Main Internet connection
36 months
$33,048
plus taxes, fees
Comcast
1OMbs
Main Internet connection
36 months
$14,280
plus taxes, fees
Comcast indicates that it takes about 120 days to install the new service. The current AT&T contract will
expire in December 2010, after which time the City would continue to pay the same rate on a month-to-
month basis until the service is canceled. There is a possibility the City will have to extend the AT&T
service for 60 days while the Comcast installation is completed.
Staff recommends switching the City's Internet service providerfrom AT&T to Comcast for an immediate
savings of more than $18,000 per year with no anticipated difference in Internet service levels.
FISCAL IMPACT: The City can anticipate annual savings of about $18,000 for three years.
FUNDING: City-wide telephone account(100242.7202)
- C4494
Jordan Ayers
Deputy City Manager/Internal Services Director
Attachment
Prepared by: Steve Mann, Information Systems Manager
APPROVED:
Konradt Bartlam, Interim City Manager
Amendment No. CA- 163 029-csalm/A I
FIRST AMENDMENT
to
Comcast Enterprise Services Master Services Agreement No. CA-163029-csalm
This First Amendment ("Amendment") is concurrently entered into on September 28, 2010 ("Effective
Date") in conjunction with the Comcast Enterprise Services Master Services Agreement No. CA-163029-
csalm ("Agreement") by and between Comcast Cable Communications Management, LLC ("Comcast")
and City of Lodi ("Customer"), individually referred to herein as "Parry" and jointly referred to as
"Parties". In the event of conflict between this Amendment and the Agreement, to include the General
Terms and Conditions and PSA's, the Terms and Conditions of this Amendment shall take precedence in
the interpretation of the explicit matter in question. Unless otherwise set forth herein, all capitalized terms
set forth herein shall have the same meaning as set forth in the Agreement.
Whereas, the Parties desire to amend the Agreement by this writing to reflect the amended or additional
Terms and Conditions to which the Parties have agreed to;
Now, therefore, in consideration of the mutual covenants, promises, and consideration set forth in this
First Amendment, the Parties agree as follows:
1. In the event of any inconsistency among the documents, precedence will be as follows: (1)
Amendment(s), (2) the Cover Page, (3) General Terms and Conditions, (4) PSA's and (S) Sales
Orders.
2. The Parties hereby acknowledge that this Agreement, to include the Confidentiality provisions
hereunder, is subject to the California Public Records Act.
IN WITNESS WHEREOF, the Parties hereto have executed this First Amendment as of the day and
year written below and the persons signing covenant and warrant that they are duly authorized to sign for
and on behalf of the respective Parties. Except as otherwise modified by this Amendment, all other
Terms and Conditions of the Agreement shall remain in full force and effect.
Signature:
Signature:
Printed Name:
Printed Name:
Title:
Title:
Date:
Date:
Comcast Cable Communications Management, LLC
CONFIDENTIAL and PROPRIETARY
"-W
Page I of I
MSA ID#: CA -163029- I MSA Term: 60 months I Account Name: City of Lodi
csalm
Primary Contact: Konradt Bartlam. PrimaEy Contact Address. Information
Title: City Manager Address 1: 215 W. Elm Street
Phone: 209-333-6800 Address 2:
Cell: City: Lodi
Fax: State: CA
Email: kbartlam60odi.gov Zip Code: 95241
This Master Service Agreement ("Agreement") sets forth the terms and conditions under which Comcast Cable
Communications Management, LLC and its operating affiliates ("Comcast") will provide communications and other
services ("Services") to the above Customer. The Agreement consists of this fully executed Master Service
Agreement Cover Page ("Cover Page"), the Enterprise Services General Terms and Conditions ("General Terms and
Conditions"), any written amendments to the Agreement executed by both parties ("Amendments"), the Product -
Specific Attachment for the applicable Services ("PSA(s)") and each Sales Order accepted hereunder ("Sales
Orders"). In the event of any inconsistency among these documents, precedence will be as follows: (1) this Cover
Page (2) General Terms and Conditions, (3) PSA(s), , and (4) Sales Orders. This Agreement shall be legally binding
when signed by both parties and shall continue in effect until the expiration date of any Service Term specified in a
Sales Order referencing the Agreement, unless term inated earlier in accordance with the Agreement.
The Customer referenced above may submit Sales Orders to Comcast during the Term of this Agreement ("MSA
Term"). After the expiration of the initial MSA Term, Comcast may continue to accept Sales Orders from Customer
under the Agreement, or require the parties to execute a new MSA.
The Agreement shall terminate in accordance with the General Terms and Conditions. The General Terms and
Conditions and PSAs are located at http://bussiness.omrast.can/enterprise-tears-of-servioe. Use of the Services is
also subject to the High-speed Internet for Business Acceptable Use Policy ("AUP") located at
http://business.comcast.com/pdfs/Enterprise-Acceptable-Use-Policy.pdf, and the High-speed Internet for Business
Privacy Policy (Privacy Policy") located at http://business.comcast.com/pdfs/Enterprise-Privacy-Policy.pdf,
Comcast may update the General Terms and Conditions, PSAs, AUP and Privacy Policy from time to time upon
posting to the Comcast website.
Services are only available to commercial customers in wired and serviceable areas in participating Comcast
systems (and may not be transferred). Minimum Service Terms are required for most Services and early termination
fees may apply. Service Terms are identified in each Sales Orders, and early termination fees are identified in the
applicable Product Specific Attachments.
BY SIGNING BELOW, CUSTOMER AGREES TO THE TERMS AND CONDITIONS OF THIS AGREEMENT,
MSAID#,. CA-1163029osalm
PdmeyContact: Nonradleanlam
Thle: City Manager
Phone, 209-939.5548
Cell:
Fax:
Emat: kbartlamIllodl gov
COMCARfi EWERPRIM SERVICES SALES ORDER FOR1VI
Service Term (Months):
SOID#: CA-163029esaim-23721
Billing contact: Mic helleMunoz
Tile: Aacounta Payable
Phone: 20933U1100 Ext2525
Fax:
Emall: mmunozAlodi g"
SUMMARY OF SERVICE CHARGES
Total Monthly Service Charges: 51,1.90:00
Total Standard Installation Fees*: $1,000.00
PAVE 1 of 6
Account Name:
INVOICEADDRESS
Address 1: P O
Addnu 2:
state:
Zip Cod.:
Tax Exempt
SUMMARY OF CUSTOM INSTALLATION FEES
Total Custom Installation Fee: $0.00
The prices Included an this sales order do not include any local stale or federal fees, charges, ortailes that may apply Please reierto the Comcast Master ServicesAgreement(MSA) Omer Page for speck detail regarding such l
s. Customer shall pay Comcast are htndiedpercent (100%) of the non -amortized Custom Installation Fee prior to the Installationot Service.
This Sales Ordershas beetfective upon soceptance by Comcast This Sates Order is made part of theComcasl Enterpd" Swvloes Master3ervice Agreement, entered helwQ eenComcast and the undersigned(the"Agreement), and is also auhject to the
Product Spednc Attachment for the SerA09(s) ordered herein, located at http //business comcasLcomrenterpdse-teffn"f-service . Unless otherwise indicated herein, any capitalized words contained herein shall have the same meaningasm the Agreement.
W signing below, Customer acknowledges, agrees to and accepts the terns and conditions of this Sales Order.
SOW*— Signature' Sales Rep Christine Selmed
Name Name Sales Rep E -Mail Christine_Salmeri®cable comcast cont
Title Title Region_ West
Date Date. Division. Caldornia Region
COMCAST ENTERPRISE SERVICES
GENERAL TERMS AND CONDITIONS
VERSION: 1.1
DEFINITIONS
Affiliate: Any entity that controls, is controlled by or is under
common control with Comcast.
Agreement, Enterprise Services Master Services
Agreement or MSA: Consists of the Enterprise Master
Services Agreement Cover Page executed by the Customer
and accepted by Comcast, these Enterprise Services General
Terms and Conditions ("General Terms and Conditions"), the
then current Product -Specific Attachment for each ordered
Service ("PSA"), any written amendments to the Agreement
executed by both Parties including any supplemental terms
and conditions ("Amendment(s)"), and each Sales Order
accepted by Comcast under the Agreement.
Amendment(s): Any written amendment to the Agreement,
executed by both Parties, including any supplemental terms
and conditions.
Comcast: The operating company affiliate or subsidiary of
Comcast Cable Communications Management, LLC that
provides the Services under the Enterprise Services Master
Service Agreement. References to Comcast in the Limitation
of Liability, Disclaimer of Warranties and Indemnification
Articles shall also include its directors, officers, employees,
agents, Affiliates, suppliers, licensors, successors, and assigns,
as the case may be.
Comcast Website or Website: The Comcast website where
the General Terms and Conditions, PSAs and other Comcast
security and privacy policies applicable to the Agreement will
be posted. The current URL for the Website is
htti)://busiiiess.comcast.com/enterprise-terms-of-service
Comcast may update the Website documents and/or URL
from time to time.
Comcast Equipment: Any and all facilities, equipment or
devices provided by Comcast or its authorized contractors at
the Service Location(s) that are used to deliver any of the
Services including, but not limited to, all terminals, wires,
modems, lines, circuits, ports, routers, gateways, switches,
channel service units, data service units, cabinets, and racks.
Notwithstanding the above, inside telephone wiring within the
Service Location, whether or not installed by Comcast, shall
not be considered Comcast Equipment.
Confidential Information: All information regarding either
Party's business which has been marked or is otherwise
communicated as being "proprietary" or "confidential." or
which reasonably should be known by the receiving party to
be proprietary or confidential information. Without limiting
the generality of the foregoing, Confidential Information shall
include, even if not marked, the Agreement, all Licensed
Software, promotional materials, proposals, quotes, rate
information, discount information, subscriber information,
network upgrade information and schedules, network
operation information (including without limitation
information about outages and planned maintenance) and
invoices, as well as the Parties' communications regarding
such items.
Customer: The company, corporation, or other entity named
on the Enterprise Services Master Service Agreement Cover
Page and a Sales Order.
Customer-ProvidedEquipment (CE): Any and all facilities,
equipment or devices supplied by Customer for use in
connection with the Services.
Demarcation Point: The point of interconnectionbetween the
Network and Customer's provided equipment located at a
Service Location. In some cases the Demarcation Point shall
be the User to Network Interface (UNI) port on Comcast
Equipment at a Service Location.
General Terms and Conditions: These Enterprise Services
General Terms and Conditions.
Licensed Software: Computer software or code provided by
Comcast or required to use the Services, including without
limitation, associated documentation, and all updates thereto.
Network: Consists of the Comcast Equipment, facilities,
fiber optic cable associated with electronics and other
equipment used to provide the Services.
Party: A reference to Comcast or the Customer; and in the
plural, a reference to both companies.
Product SpecificAttachment(s) (PSA): The additional terms
and conditions applicable to Services ordered by Customer
under the Agreement.
Revenue Commitment: A commitment by Customer to
purchase a minimum volume of Service during an agreed
term, as set forth in a Sales Order.
Sales Order: A request for Comcast to provide the Services to
a Service Location(s) submitted by Customer to Comcast (a)
on a then -current Comcast form designated for that purpose or
(b) if available, through a Comcast electronic order processing
system designated for that purpose.
Service(s): A service provided by Comcast pursuant to a
Sales Order. All Services provided under the Agreement are
for commercial use only. Services available under this
Agreement are identified on the Website.
Service Commencement Date: The date(s) on which
Comcast first makes Service available for use by Customer. A
single Sales Order containing multiple Service Locations or
Services may have multiple Service CommencementDates.
Service Location(s): The Customer location(s) where
Comcast provides the Services, to the extent the Customer
owns, leases, or otherwise controls such location(s).
Service Term: The duration of time (commencing on the
Service Commencement Date) for which Services are ordered,
as specified in a Sales Order.
Tariff: A federal or state Comcast tariff and the successor
documents of general applicability that replace such tariff in
the event of detari ffing.
Termination Charges: Charges that may be imposed by
Comcast if, prior to the end of the applicable Service Term (a)
Comcast terminates Services for cause or (b) Customer
terminates Services without cause. Termination Charges are as
set forth in each PSA, and are in addition to any other rights
and remedies under the Agreement.
ARTICLE 1. CHANGES TO THE AGREEMENT
TERMS
Comcast may change or modify the Agreement, and any
related policies from time to time ("Revisions") by posting
such Revisions to the Comcast Website. The Revisions are
effective upon posting to the Website. Customer will receive
notice of the Revisions in the next applicable monthly invoice.
Customer shall have thirty (30) calendar days from the posting
of such Revisions to provide Comcast with written notice that
the Revisions adversely affect Customer's use of the
Service(s). If after notice Comcast is able to verify such
adverse affect but is unable to reasonably mitigate the
Revision's impact on such Services, then Customer may
terminate the impacted Service(s) without further obligation to
Comcast beyond the termination date, including early
termination charges, if any. This shall be Customer's sole and
exclusive remedy.
ARTICLE 2. DELIVERY OF SERVICE
2.1 Orders. Customer shall submit to Comcast a
properly completed Sales Order to initiate Service to a Service
Location(s). A Sales Order shall become binding on the
Parties when (i) it is specifically accepted by Comcast either
electronically or in writing, (ii) Comcast begins providing the
Service described in the Sales Order or (iii) Comcast begins
Custom Installation (as defined in Article 2.7) for delivery of
the Services described in the Sales Order, whichever is earlier.
When a Sales Order becomes effective it shall be deemed part
of, and shall be subject to, the Agreement.
2.2 Access. In order to deliver certain Services to
Customer, Comcast may require access, right-of-way, conduit,
and/or common room space ("Access"), both within and/or
outside each Service Location. Customer shall provide an
adequate environmentally controlled space and such electricity
as may be required for installation, operation, and
maintenance of the Comcast Equipment used to provide the
Services within the Service Location(s). Customer shall be
responsible for securing, and maintaining on an initial and
ongoing basis during the applicable Service Term and/or
Renewal Term, such Access within each Service Location
unless Comcast has secured such access prior to this
Agreement. hi the event that Customer, fails to secure or
maintain such Access within a particular Service Location,
Comcast may cancel or terminate Service at such particular
Service Location, without further liability, upon written
notice to Customer. hi such event, if Comcast has incurred
any costs or expense in installing or preparing to install the
Service that it otherwise would not have incurred, a charge
equal to those costs and expenses shall apply to Customer's
final invoice for that particular Service Location. If Comcast is
unable to secure or maintain Access outside a particular
Service Location, which Access is needed to provide Services
to such Service Location, Customer or Comcast may cancel or
terminate Service at such particular Service Location, without
further liability beyond the termination date, upon a minimum
thirty (30) days' prior written notice to the other party. In such
event, if Comcast has incurred any costs or expense in
installing or preparing to install the Service that it otherwise
would not have incurred, Comcast shall be responsible for
such costs or expenses. Any other failure on the part of
Customer to be ready to receive Service, or any refusal on the
part of Customer to receive Service, shall not relieve
Customer of its obligation to pay charges for any Service that
is otherwise available for use.
2.3 Hazardous Materials. If the presence of asbestos or
other hazardous materials exists or is detected at a Service
Location or within the building where the Service Location is
located, Comcast may immediately stop providing Services
until such a time as such materials are removed. Alternatively
Customer may notify Comcast to install the applicable portion
of the Service in areas of any such Service Location not
containing such hazardous material. Any additional expense
incurred by Comcast as a result of encountering hazardous
materials, including but not limited to, any additional
equipment shall be borne by Customer. Customer shall use
reasonable efforts to maintain its property and Service
Locations in a manner that preserves the integrity of the
Services.
2.4 Comcast Equipment. At any time Comcast may
remove or change Comcast Equipment in its sole discretion in
connection with providing the Services. Customer shall not
move, rearrange, disconnect, remove, attempt to repair, or
otherwise tamper with any Comcast Equipment or permit
others to do so, and shall not use the Comcast Equipment for
any purpose other than that authorized by the Agreement.
Comcast shall maintain Comcast Equipment in good operating
condition during the term of this Agreement; provided,
however, that such maintenance shall be at Comcast's expense
only to the extent that it is related to and/or resulting from the
ordinary and proper use of the Comcast Equipment.
Customer is responsible for damage to, or loss of, Comcast
Equipment caused by its acts or omissions, and its
noncompliance with this Article, or by fire, theft or other
casualty at the Service Location(s), unless caused by the gross
negligence or willful misconduct of Comcast.
Enterprise Services General Terms and Conditions Ver. 1.1
2.5 Ownership. Impairment and Removal of Network.
The Network is and shall remain the property of Comcast
regardless of whether installed within or upon the Service
Location(s) and whether installed overhead, above, or
underground and shall not be considered a fixture or an
addition to the land or the Service Location(s) located thereon.
Customer agrees that it shall take no action that directly or
indirectly impairs Comcast's title to the Network, or any
portion thereof, or exposes Comcast to any claim, lien,
encumbrance, or legal process, except as otherwise agreed in
writing by the Parties. Nothing in this Agreement shall
preclude Comcast from using the Network for services
provided to other Comcast customers. For a period of twelve
(12) months following Comcast's discontinuance of Service to
the Service Location(s), Comcast retains the right to remove
the Network including, but not limited to, that portion of the
Network that is located in the Service Location. To the extent
Comcast removes such portion of the Network it shall be
responsible for returning the Service Location(s) to its prior
condition, reasonable wear and tear excepted.
2.6 Customer Provided Equipment ("CE"l. Comcast
shall have no obligation to install, operate, or maintain CE.
Customer shall have sole responsibility for providing
maintenance, repair, operation and replacement of all CE,
inside telephone wiring and other Customer equipment and
facilities on the Customer's side of the Demarcation Point.
Neither Comcast nor its employees, Affiliates, agents or
contractors will be liable for any damage, loss, or destruction
to CE, unless caused by the gross negligence or willful
misconduct of Comcast. CE shall at all times be compatible
with the Network as determined by Comcast in its sole
discretion. In addition to any other service charges that may be
imposed from time to time, Customer shall be responsible for
the payment of service charges for visits by Comcast's
employees or agents to a Service Location when the service
difficulty or trouble report results from the use of CE or
facilities provided by any party other than Comcast.
2.7 Engineering Review. Each Sales Order submitted
by Customer may be subject to an engineering review. The
engineering review will determine whether and to what extent
the Network must be extended, built or upgraded ("Custom
Installation") in order to provide the ordered Services at the
requested Service Location(s). Comcast will provide
Customer written notification in the event Service installation
at any Service Location will require an additional non-
recurring installation fee ("Custom Installation Fee"). Custom
Installation Fees may also be referred to as Construction
Charges on a Service Order or Invoice. Customer will have
five (5) days from receipt of such notice to reject the Custom
Installation Fee and terminate, without further liability, the
Sales Order with respect to the affected Service Location(s).
For certain Services, the Engineering Review will be
conducted prior to Sales Order submission. hi such case,
Customer will have accepted the designated Custom
Installation Fee upon submission of the applicable Sales
Order.
2.8 Service Acceptance. Except as may otherwise be
identified in the applicable PSA, the Service Commencement
Date shall be the date Comcast completes installation and
connection of the necessary facilities and equipment to
provide the Service at a Service Location.
2.9 Administrative Website. Comcast may furnish
Customer with one or more user identifications and/or
passwords for use on the Administrative Website. Customer
shall be responsible for the confidentiality and use of such
user identifications and/or passwords and shall immediately
notify Comcast if there has been an unauthorized release, use
or other compromise of any user identification or password.
In addition, Customer agrees that its authorized users shall
keep confidential and not distribute any information or other
materials made available by the Administrative Website.
Customer shall be solely responsible for all use of the
Administrative Website, and Comcast shall be entitled to rely
on all Customer uses of and submissions to the Administrative
Website as authorized by Customer. Comcast shall not be
liable for any loss, cost, expense or other liability arising out
of any Customer use of the Administrative Website or any
information on the Administrative Website. Comcast may
change or discontinue the Administrative Website, or
Customer's right to use the Administrative Website, at any
time. Additional terms and policies may apply to Customer's
use of the Administrative Website. These terms and policies
will be posted on the site.
ARTICLE 3. BILLING AND PAYMENT
3.1 Charges. Except as otherwise provided in the
applicable PSA, Customer shall pay Comcast one hundred
percent (100%) of the Custom Installation Fee prior to the
installation of Service. Customer further agrees to pay all
charges associated with the Services, as set forth or referenced
in the applicable PSA, Sales Order(s) or invoice from
Comcast. These charges may include, but are not limited to
standard and custom non-recurring installation charges,
monthly recurring service charges, usage charges including
without limitation charges for the use of Comcast Equipment,
per -call charges, pay-per-view charges, charges for service
calls, maintenance and repair charges, and applicable federal,
state, and local taxes, fees, surcharges and recoupments
(however designated). Some Services such as measured and
per -call charges, pay-per-view movies or events, and
interactive television (as explained in the applicable PSA) may
be invoiced after the Service has been provided to Customer.
Except as otherwise indicated herein or in the applicable
PSA(s) monthly recurring charges for Ethernet, Video and
Internet Services that are identified on a Sales Order shall not
increase during the Service Term. Except as otherwise
indicated herein or in the Sales Order(s), Voice Service
pricing, charges and fees can be found in the applicable PSA.
3.2 Third -Party Charges. Customer may incur charges
from third party service providers that are separate and apart
from, or based on the amounts charged by Comcast. These
may include, without limitation, charges resulting from
Enterprise Services General Temis and Conditions Ver. 1.1
wireless services including roaming charges, accessing on-line
services, calls to parties who charge for their telephone based
services, purchasing or subscribing to other offerings via the
Internet or interactive options on certain Video services, or
otherwise. Customer agrees that all such charges, including
all applicable taxes, are Customer's sole responsibility. In
addition, Customer is solely responsible for protecting the
security of credit card information provided to others in
connection with such transactions.
3.3 Payment of Bills. Except as otherwise indicated
herein or in a PSA, Comcast will invoice Customer in advance
on a monthly basis for all monthly recurring charges and fees
arising under the Agreement. All other charges will be billed
monthly in arrears, including without limitation certain usage
based charges and third party pass through fees. Payment is
due upon presentation of an invoice. Payment will be
considered timely made to Comcast if received within thirty
(30) days after the invoice date. Any charges not paid to
Comcast within such period will be considered past due. If a
Service Commencement Date is not the first day of a billing
period, Customer'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. In certain cases, Comcast
may agree to provide billing services on behalf of third parties,
as the agent of the third party. Any such third -party charges
shall be payable pursuant to any contract or other arrangement
between the third party and Customer and/or Comcast.
Comcast shall not be responsible for any dispute regarding
these charges between Customer and such third party.
Customer must address all such disputes directly with the third
party.
3.4 Partial Pavment. Partial payment of any bill will be
applied to the Customer's outstanding charges in amounts and
proportions solely determined by Comcast. No acceptance of
partial payment(s) by Comcast shall constitute a waiver of any
rights to collect the full balance owed under the Agreement.
3.5 Credit Approval and Deposits. Initial and ongoing
delivery of Services may be subject to credit approval.
Customer shall provide Comcast with credit information
requested by Comcast. Customer authorizes Comcast to make
inquiries and to receive information about Customer's credit
history from others and to enter this information in Customer's
records. Customer represents and warrants that all credit
information that it provides to Comcast will be true and
correct. Comcast, in its sole discretion, may deny the Services
based upon an unsatisfactory credit history. Additionally,
subject to applicable regulations, Comcast may require
Customer to make a deposit (in an amount not to exceed an
estimated two months charge for the Services) as a condition
to Comcast's provision of the Services, or as a condition to
Comcast's continuation of the Services. The deposit will not,
unless explicitly required by law, bear interest and shall be
held by Comcast as security for payment of Customer's
charges. Comcast may apply the deposit to any delinquent
Customer charges upon written notice to Customer. If
Comcast uses any or all of the deposit to pay an account
delinquency, Customer will replenish the deposit by that
amount within five (5) days of its receipt of written notice
from Comcast. If the provision of Service to Customer is
terminated, or if Comcast determines in its sole discretion that
such deposit is no longer necessary, then the amount of the
deposit (plus any required deposit interest) will be credited to
Customer's account or will be refunded to Customer, as
determined by Comcast.
3.6 Taxes and Fees. Except to the extent Customer
provides a valid tax exemption certificate prior to the delivery
of Service, Customer shall be responsible for the payment of
any and all applicable local, state, and federal taxes or fees
(however designated). Customer also will be responsible to
pay any Service fees, payment obligations and taxes that
become applicable retroactively.
3.7 Other Government -Related Costs and Fees.
Comcast reserves the right to invoice Customer for any fees or
payment obligations in connection with the Services imposed
by governmental or quasi -governmental bodies in connection
with the sale, installation, use, or provision of the Services,
including, without limitation, applicable franchise fees, right
of way fees and universal service fund charges (if any),
regardless of whether Comcast or its Affiliates pay the fees
directly or are required by an order, rule, or regulation of a
taxing jurisdiction to collect them from Customer. Taxes and
other government -related fees and surcharges may be changed
with or without notice, In the event that any newly adopted
law, rule, regulation or judgment increases Comcast's costs of
providing Services, Customer shall pay Comcast's additional
costs of providing Services under the new law, rule, regulation
or judgment.
3.8 Disputed Invoice. If Customer disputes any portion
of an invoice by the due date, Customer must pay fifty percent
(50%) of the disputed charges, in addition to the undisputed
portion of the invoice and submit a written claim, including all
documentation substantiating Customer's claim, to Comcast
for the disputed amount of the invoice by the invoice due date.
The Parties shall negotiate in good faith to resolve any billing
dispute. Comcast will refund/credit all valid disputes resolved
in Customer's favor as of the date the disputed charges first
appeared on the Customer's invoice.
3.9 Past -Due Amounts. Any payment not made when
due will be subject to a late charge of 1.5% per month or the
highest rate allowed by law on the unpaid invoice, whichever
is lower. If Customer's account is delinquent, Comcast may
refer the account to a collection agency or attorney that may
pursue collection of the past due amount and/or any Comcast
Equipment that Customer fails to return in accordance with the
Agreement. If Comcast is required to use a collection agency
or attorney to collect any amount owed by Customer or any
unreturned Comcast Equipment, Customer agrees to pay all
reasonable costs of collection or other action. The remedies
set forth herein are in addition to and not in limitation of any
other rights and remedies available to Comcast under the
Agreement or at law or in equity.
Enterprise Services General Tenns and Conditions Ver.l.l
3.10 Reiected Pam. Except to the extent otherwise
prohibited by law, Customer will be assessed a service charge
up to the full amount permitted under applicable law for any
check or other instrument used to pay for the Services that has
been rejected by the bank or other financial institution.
3.11 Fraudulent Use of Services. Customer is responsible
for all charges attributable to Customer with respect to the
Service(s), even if incurred as the result of fraudulent or
unauthorized use of the Service. Comcast may, but is not
obligated to, detect or report unauthorized or fraudulent use of
Services to Customer. Comcast reserves the right to restrict,
suspend or discontinue providing any Service in the event of
fraudulent use of Customer's Service.
ARTICLE 4. TERM: REVENUE COMMITMENT
4.1 Agreement Term. Upon execution of the
Agreement, Customer shall be allowed to submit Sales Orders
to Comcast during the term referenced on the Master Service
Agreement Cover Page ("MSA Term"). After the expiration of
the initial MSA Term, Comcast may continue to accept Sales
Orders from Customer under the Agreement, or require the
Parties to execute a new agreement. This Agreement shall
continue in effect until the expiration or termination date of
the last Sales Order entered under the Agreement, unless
terminated earlier in accordance with the Agreement.
4.2 Sales Order Term/Revenue Commitment. The
applicable Service Term and Revenue Commitment (if any)
shall be set forth in the Sales Order. Unless otherwise stated
in these terms and conditions or the applicable PSA, if a Sales
Order does not specify a term of service, the Service Term
shall be one (1) year from the Service Commencement Date.
In the event Customer fails to satisfy a Revenue Commitment,
Customer will be billed a shortfall charge pursuant to the
terms of the applicable PSA.
4.3 Sales Order Renewal. Upon the expiration of the
Service Term, and unless otherwise agreed to by the Parties in
the Sales Order, each Sales Order shall automatically renew
for successive periods of one (1) year each ("Renewal
Term(s)"), unless otherwise stated in these terms and
conditions or prior notice of non -renewal is delivered by either
Party to the other at least thirty (30) days before the expiration
of the Service Term or the then current Renewal Term.
Effective at any time after the end of the Service Term and
from time to time thereafter, Comcast may, modify the
charges for Ethernet, Internet andlor Video Services subject to
thirty (30) days prior written notice to Customer. Customer
will have thirty (30) days from receipt of such notice to cancel
the applicable Service without further liability. Should
Customer fail to cancel within this timeframe, Customer will
be deemed to have accepted the modified Service pricing.
ARTICLE 5. TERMINATION WITHOUT FAULT;
DEFAULT
5.1 Termination for Convenience. Notwithstanding any
other term or provision in this Agreement, Customer shall
have the right, in its sole discretion, to terminate any or all
Sales Order(s) at any time during the Service Term(s), upon
thirty (30) days prior written notice to Comcast and subject to
payment to Comcast of all outstanding amounts due for the
Services, any and all applicable Termination Charges, and the
return of all applicable Comcast Equipment. Comcast may
terminate the Agreement if Customer does not take any
Service under a Sales Order for twelve (12) consecutive
months or longer.
5.2 Termination for Cause. If either Party breaches any
material term of the Agreement, other than a payment term,
and the breach continues un -remedied for thirty (30) days
after written notice of default, the other Party may terminate
for cause any Sales Order materially affected by the breach. If
Customer is in breach of a payment obligation (including
failure to pay a required deposit) and fails to make payment in
full within ten (10) days after receipt of written notice of
default, Comcast may, at its option, terminate the Agreement,
terminate the affected Sales Orders, suspend Service under the
affected Sales Orders, andlor require a deposit, advance
payment, or other satisfactory assurances in connection with
any or all Sales Orders as a condition of continuing to provide
Service; except that Comcast will not take any such action as
a result of Customer's non-payment of a charge subject to a
timely billing dispute, unless Comcast has reviewed the
dispute and determined in good faith that the charge is correct.
A Sales Order may be terminated by either Party immediately
upon written notice if the other Party has become insolvent or
involved in liquidation or termination of its business, or
adjudicated bankrupt, or been involved in an assignment for
the benefit of its creditors. Termination by either Party of a
Sales Order does not waive any other rights or remedies that it
may have under this Agreement. The non -defaulting Party
shall be entitled to all available legal and equitable remedies
for such breach.
5.3 Effect of Expiration/Termination of a Sales Order.
Upon the expiration or termination of a Sales Order for any
reason:
A. Comcast shall disconnect the applicable Service;
B. Comcast may delete all applicable data, files,
electronic messages, or other information stored on Comcast's
servers or systems;
C. If Customer has terminated the Sales Order prior to
the expiration of the Service Term for convenience, or if
Comcast has terminated the Sales Order prior to the expiration
of the Service Term as a result of material breach by
Customer, Comcast may assess and collect from Customer
applicable Termination Charges (if any);
D. Customer shall, permit Comcast to retrieve from the
applicable Service Location any and all Comcast Equipment.
Enterprise ServicesGeneral Tenns and Conditions Ver. 1.1
If Customer fails to permit such retrieval or if the retrieved
Comcast Equipment has been damaged and/or destroyed other
than by Comcast or its agents, normal wear and tear excepted,
Comcast may invoice Customer for the manufacturer's list
price of the relevant Comcast Equipment, or in the event of
minor damage to the retrieved Comcast Equipment, the cost of
repair, which amounts shall be immediately due and payable;
and
E. Customer's right to use applicable Licensed Software
shall automatically terminate, and Customer shall be obligated
to return all Licensed Software to Comcast.
5.4 Resumption of Service. If a Service has been
discontinued by Comcast for cause and Customer requests that
the Service be restored, Comcast shall have the sole and
absolute discretion to restore such Service. At Comcast's
option, deposits, advanced payments, nonrecurring charges,
and/or an extended Service Term may apply to restoration of
Service.
5.5 Reaulatory and Leeal Chances. The Parties
acknowledge that the respective rights and obligations of each
Party as set forth in this Agreement upon its execution are
based on applicable law and regulations as they exist on the
date of execution of this Agreement. The Parties agree that in
the event of any subsequent decision by a legislative, regulatory
or judicial body, including any regulatory or judicial order,
rule, regulation, decision in any arbitration or other dispute
resolution or other legal or regulatory action that materially
affects the provisions or ability to provide Services on
economic terms of the Agreement, Comcast may, by providing
written notice to the Customer, require that the affected
provisions of the Agreement be renegotiated in good faith. If
Customer refuses to enter such renegotiations, or the Parties
can't reach resolution on new Agreement terms, Comcast
may, in its sole discretion, terminate this Agreement, in whole
or in part, upon sixty (60) days written notice to Customer.
ARTICLE 6. LIMITATION OF LIABILITY:
DISCLAIMEROF WARRANTIES: WARNINGS
6.1 Limitation of Liability.
A, THE AGGREGATE LIABILITY OF COMCAST
FOR ANY AND ALL LOSSES, DAMAGES AND
CAUSES ARISING OUT OF THE AGREEMENT,
INCLUDING, BUT NOT LIMITED TO, THE
PERFORMANCE OF SERVICE, AND NOT
OTHERWISE LIMITED HEREUNDER, WHETHER IN
CONTRACT, TORT, OR OTHERWISE, SHALL NOT
EXCEED DIRECT DAMAGES EQUAL TO THE SUM
TOTAL OF PAYMENTS MADE BY CUSTOMER TO
COMCAST DURING THE THREE (3) MONTHS
IMMEDIATELY PRECEDING THE EVENT FOR
WHICH DAMAGES ARE CLAIMED. THIS
LIMITATION SHALL NOT APPLY TO COMCAST'S
INDEMNIFICATION OBLIGATIONS AND CLAIMS
FOR DAMAGE TO PROPERTY AND/OR PERSONAL
INJURIES (INCLUDING DEATH) ARISING OUT OF
THE GROSS NEGLIGENCE OR WILLFUL
MISCONDUCT OF COMCAST WHILE ON THE
CUSTOMER SERVICE LOCATION.
B. NEITHER PARTY SHALL BE LIABLE TO
THE OTHER FOR ANY INCIDENTAL, INDIRECT,
SPECIAL, COVER, PUNITIVE OR CONSEQUENTIAL
DAMAGES, WHETHER OR NOT FORESEEABLE, OF
ANY KIND INCLUDING BUT NOT LIMITED TO ANY
LOSS REVENUE, LOSS OF USE, LOSS OF BUSINESS,
OR LOSS OF PROFIT WHETHER SUCH ALLEGED
LIABILITY ARISES IN CONTRACT OR TORT
HOWEVER, THAT NOTHING HEREIN IS INTENDED
TO LIMIT CUSTOMER'S LIABILITY FOR AMOUNTS
OWED FOR THE SERVICES, FOR ANY EQUIPMENT
OR SOFTWARE PROVIDED BY COMCAST OR FOR
EARLY TERMINATION CHARGES.
6.2 Disclaimer of Warranties.
A. Services shall be provided pursuant to the terms and
conditions in the applicable PSA and Service Level
Agreement, and are in lieu of all other warranties, express,
implied or statutory, including, but not limited to, the implied
warranties of merchantability, fitness for a particular purpose,
title, and non -infringement. To the maximum extent allowed
by law, Comcast expressly disclaims all such express, implied
and statutory warranties.
R Without limiting the generality of the foregoing, and
except as otherwise identified in a PSA or Service Level
Agreement, Comcast does not warrant that the Services,
Comcast Equipment, or Licensed Software will be
uninterrupted, error -free, or free of latency or delay, or that the
Services, Comcast Equipment, or Licensed Software will meet
customer's requirements, or that the Services, Comcast
Equipment, or Licensed Software will prevent unauthorized
access by third parties.
C. In no event shall Comcast, be liable for any loss,
damage or claim arising out of or related to: (i) stored,
transmitted, or recorded data, files, or software; (ii) any act or
omission of Customer, its users or third parties; (iii)
interoperability, interaction or interconnection of the Services
with applications, equipment, services or networks provided
by Customer or third parties; or (iv) loss or destruction of any
Customer hardware, software, files or data resulting from any
virus or other harmful feature or from any attempt to remove
it. Customer is advised to back up all data, files and software
prior to the installation of Service and at regular intervals
thereafter.
6.3 Disruption of Service. Notwithstanding the
performance standards identified in a PSA, the Services are
not fail-safe and are not designed or intended for use in
situations requiring fail-safe performance or in which an error
or interruption in the Services could lead to severe injury to
business, persons, property or environment ("High Risk
Activities"). These High Risk Activities may include, without
Enterprise Services General Terms and Conditions Ver. 1.1
limitation, vital business or personal communications, or
activities where absolutely accurate data or information is
required.
6.4 Customer's sole and exclusive remedies are expressly set
forth in the Agreement. Certain of the above exclusions may
not apply if the state in which a Service is provided does not
allow the exclusion or limitation of implied warranties or does
not allow the limitation or exclusion of incidental or
consequential damages. hi those states, the liability of
Comcast is limited to the maximum extent permitted by law.
ARTICLE 7. INDEMNIFICATION
7.1 Comcast's Indemnification Obligations. Comcast
shall indemnify defend, and hold harmless Customer and its
parent company, affiliates, employees, directors, officers, and
agents from and against all claims, demands, actions, causes of
actions, damages, liabilities, losses, and expenses (including
reasonable attorneys' fees) ("Claims") incurred as a result of:
infringement of U.S. patent or copyright relating to the Comcast
Equipment or Comcast Licensed Software hereunder; damage to
tangible personal property or real property, and personal injuries
(including death) arising out of the gross negligence or willful
misconduct of Comcast while working on the Customer Service
Location.
7.2 Customer's Indemnification Obligations.
Customer shall indemnify, defend, and hold harmless Comcast
from any and ail Claims arising on account of or in connection
with Customer's use or sharing of the Service provided under
the Agreement, including with respect to: libel, slander,
infringement of copyright, or unauthorized use of trademark,
trade name, or service mark arising out of communications via
the Service; for patent infringement arising from Customer's
combining or connection of CE to use the Service; for damage
arising out of the gross negligence or willful misconduct of
Customer with respect to users of the Service.
7.3 Indemnification Procedures. The Indemnifying
Party agrees to defend the Indemnified Party for any loss,
injury, liability, claim or demand ("Actions") that is the
subject of this Article 7. The Indemnified Party agrees to
notify the Indemnifying Party promptly, in writing, of any
Actions, threatened or actual, and to cooperate in every
reasonable way to facilitate the defense or settlement of such
Actions. The Indemnifying Party shall assume the defense of
any Action with counsel reasonably satisfactory to the
Indemnified Party. The Indemnified Party may employ its
own counsel in any such case, and shall pay such counsel's
fees and expenses. The Indemnifying Party shall have the
right to settle any claim for which indemnification is available;
provided, however, that to the extent that such settlement
requires the Indemnified Party to take or refrain from taking
any action or purports to obligate the Indemnified Party, then
the Indemnifying Party shall not settle such claim without the
prior written consent of the Indemnified Party, which consent
shall not be unreasonably withheld, conditioned or delayed.
ARTICLE 8. SOFTWARE & SERVICES
8.1 License. If and to the extent that Customer requires
the use of Licensed Software in order to use the Service
supplied under any Sales Order, Customer shall have a
personal, nonexclusive, nontransferable, and limited license to
use such Licensed Software in object code only and solely to
the extent necessary to use the applicable Service during the
corresponding Service Term. All Licensed Software provided
to Customer, and each revised version thereof, is licensed (not
sold) to Customer by Comcast only for use in conjunction
with the Service. Customer may not claim title to, or an
ownership interest in, any Licensed Software (or any
derivations or improvements thereto), and Customer shall
execute any documentation reasonably required by Comcast,
including, without limitation, end-user license agreements for
the Licensed Software. Comcast and its suppliers shall retain
ownership of the Licensed Software, and no rights are granted
to Customer other than a license to use the Licensed Software
under the terms expressly set forth in this Agreement.
8.2 Restrictions. Customer agrees that it shall not: (i)
copy the Licensed Software (or any upgrades thereto or related
written materials) except for emergency back-up purposes or
as permitted by the express written consent of Comcast; (ii)
reverse engineer, decompile, or disassemble the Licensed
Software; (iii) sell, lease, license, or sublicense the Licensed
Software; or (iv) create, write, or develop any derivative
software or any other software program based on the Licensed
Software.
8.3 Updates. Customer acknowledges that the use of
Service may periodically require updates and/or changes to
certain Licensed Software resident in the Comcast Equipment
or CE. If Comcast has agreed to provide updates and changes,
such updates and changes may be performed remotely or on-
site by Comcast, at Comcast's sole option. Customer hereby
consents to, and shall provide free access for, such updates
deemed reasonably necessary by Comcast. If Customer fails to
agree to such updates, Comcast will be excused from the
applicable Service Level Agreement and other performance
credits, and any and all liability and indemnification
obligations regarding the applicable Service.
8.4 Export Law and Regulation. Customer
acknowledges that any products, software, and technical
information (including, but not limited to, services and
training) provided pursuant to the Agreement may be subject
to U.S. export laws and regulations. Customer agrees that it
will not use distribute, transfer, or transmit the products,
software, or technical information (even if incorporated into
other products) except in compliance with U.S. export
regulations. If requested by Comcast, Customer also agrees to
sign written assurances and other export -related documents as
may be required for Comcast to comply with U.S. export
regulations.
8.5 Ownership of Telephone Numbers and Addresses.
Customer acknowledges that use of certain Services does not
give it any ownership or other rights in any telephone number
or Internedon-line addresses provided, including but not
Enterprise Services General Terms and Conditions Ver.l. I
limited to Internet Protocol C11"') addresses, e-mail addresses
and web addresses.
8.6 Intellectual Property Rights in the Services. Title
and intellectual property rights to the Services are owned by
Comcast, its agents, suppliers or affiliates or their licensors or
otherwise by the owners of such material. The copying,
redistribution, bundling or publication of the Services, in
whole or in part, without express prior written consent from
Comcast or other owner of such material, is prohibited.
ME 9. ONFIDENTI AI INFORP RA 'ION AND
PRIVACY
9.1 Disclosure and Use. All Confidential Information
disclosed by either Party shall be kept by the receiving party in
strict confidence and shall not be disclosed to any third party
without the disclosing party's express written consent.
Notwithstanding the foregoing, such information may be
disclosed (i) to the receiving party's employees, affiliates, and
agents who have a need to know for the purpose of performing
this Agreement, using the Services, rendering the Services,
and marketing related products and services (provided that in
all cases the receiving party shall take appropriate measures
prior to disclosure to its employees, affiliates, and agents to
assure against unauthorized use or disclosure); or (ii) as
otherwise authorized by this Agreement. Each Party agrees to
treat all Confidential Information of the other in the same
manner as it treats its own proprietary information, but in no
case using a degree of care less than a reasonable degree of
care.
9.2 Exceptions. Notwithstanding the foregoing, each
Party's confidentiality obligations hereunder shall not apply to
information that: (i) is already known to the receiving parry
without a pre-existing restriction as to disclosure; (ii) is or
becomes publicly available without fault of the receiving
party; (iii) is rightfully obtained by the receiving parry from a
third party without restriction as to disclosure, or is approved
for release by written authorization of the disclosing party; (iv)
is developed independently by the receiving party without use
of the disclosing party's Confidential Information; or (v) is
required to be disclosed by law or regulation.
9.3 Publici . The Agreement provides no right to use
any Party's or its affiliates' trademarks, service marks, or trade
names, or to otherwise refer to the other Parry in any
marketing, promotional, or advertising materials or activities.
Neither Party shall issue any publication or press release
relating to, or otherwise disclose the existence of, the terms
and conditions of any contractual relationship between
Comcast and Customer, except as permitted by the Agreement
or otherwise consented to in writing by the other Party.
Notwithstanding the foregoing, Comcast may include
Customer's name on Comcast's customer lists together with a
description of Services purchased (financial terms not to be
disclosed). If Customer wishes to remove Customer's name
from such list or to limit the foregoing use of Customer's
name, Customer may contact Comcast as set forth in Article
1 I.3 of these General Terms and Conditions and Comcast will
effect such removal.
9.4 Passwords. Comcast may furnish Customer with
user identifications and passwords for use in conjunction with
certain Services, including, without limitation, for access to
certain non-public Comcast website materials. Customer
understands and agrees that such information shall be subject
to Comcast's access policies and procedures located on
Comcast's Web Site.
9.5 Remedies. Notwithstanding any other Article of this
Agreement, the non -breaching Party shall be entitled to seek
equitable relief to protect its interests pursuant to this Article
9, including, but not limited to, injunctive relief.
9.6 Monitoring of Services. Except as otherwise
expressly set forth in a PSA, Comcast assumes no obligation
to pre-screen or monitor Customer's use of the Service,
including without limitation postings and/or transmission.
However, Customer acknowledges and agrees that Comcast
and its agents shall have the right to pre-screen and monitor
such use from time to time and to use and disclose such results
to the extent necessary to operate the Service properly, to
ensure compliance with applicable use policies, to protect the
rights and/or property of Comcast, or in emergencies when
physical safety is at issue, and that Comcast may disclose the
same to the extent necessary to satisfy any law, regulation, or
governmental request. Comcast shall have no liability or
responsibility for content received or distributed by Customer
or its users through the Service, and Customer shall
indemnify, defend, and hold Comcast and its directors,
officers, employees, agents, subsidiaries, affiliates, successors,
and assigns harmless from any and all claims, damages, and
expenses whatsoever (including reasonable attorneys' fees)
arising from such content attributable to Customer or its users.
9.7 Survival of Confidentiality Oblieations. The
obligations of confidentiality and limitation of use described
in this Article 9 shall survive the expiration and termination of
the Agreement for a period of two (2) years (or such longer
period as may be required by law).
ARTICLE 10. USE OF SERVICE: USE AND PRIVACY
POLICIES
10.1 Prohibited Uses and Comcast Use Policies.
Customer is prohibited from using, or permitting the use of,
any Service (i) for any purpose in violation of any law, rule,
regulation, or policy of any government authority; (ii) in
violation of any Use Policy (as defined below); (iii) for any
use as to which Customer has not obtained all required
government approvals, authorizations, licenses, consents, and
permits; or (iv) to interfere unreasonably with the use of
Comcast service by others or the operation of the Network.
Customer is responsible for assuring that any and all of its
users comply with the provisions of the Agreement. Comcast
reserves the right to act immediately and without notice to
terminate or suspend the Services and/or to remove from the
Services any information transmitted by or to Customer or
users, if Comcast determines that such use is prohibited as
identified herein, or information does not conform with the
Enterprise Services General Terms and Conditions Ver. 1.1
requirements set or Comcast reasonably believes that such use
or information may violate any laws, regulations, or written
and electronic instructions for use. Furthermore, to the extent
applicable, Services shall be subject to Comcast's acceptable
use policies ("Use Policies") that may limit use. The Use
Policies and other security policies concerning the Services
are posted on the Website, and are incorporated into this
Agreement by reference. Comcast may update the Use
Policies from time to time, and such updates shall be deemed
effective immediately upon posting, with or without actual
notice to Customer. Comcast's action or inaction in enforcing
acceptable use shall not constitute review or approval of
Customer's or any other users' use or information.
10.2 Privacy. In addition to the provisions of
Article 9, Comcast's commercial privacy policy applies to
Comcast's handling of Customer confidential information.
Comcast's privacy policy is available on the Website.
10.3 Privacy Note Reeardin¢ Information Provided to
Third Parties. Comcast is not responsible for any information
provided by Customer to third parties. Such information is not
subject to the privacy provisions of this Agreement. Customer
assumes all privacy and other risks associated with providing
personally identifiable information to third parties via the
Services.
10.4 Prohibition on Resale. Customer may not sell,
resell, sublease, assign, license, sublicense, share, provide, or
otherwise utilize in conjunction with a third party (including,
without limitation, in any joint venture or as part of any
outsourcing activity) the Services or any component thereof.
10.5 Violation. Any breach of this Article 10 shall be
deemed a material breach of this Agreement. In the event of
such material breach, Comcast shall have the right to restrict,
suspend, or terminate immediately any or all Safes Orders,
without liability on the part of Comcast, and then to notify
Customer of the action that Comcast has taken and the reason
for such action, in addition to any and all other rights and
remedies under this Agreement.
ARTICLE 11. MISCELLANEOUS TERMS
11.1 Force Maieure. Neither Party (and in the case of
Comcast, Comcast affiliates and subsidiaries) shall be liable to
the other Party for any delay, failure in performance, loss, or
damage to the extent caused by force majeure conditions such
as acts of God, fire, explosion, power blackout, cable cut, acts
of regulatory or governmental agencies, unavailability of
right-of-way, unavailability of right-of-way or materials, or
other causes beyond the Party's reasonable control, except that
Customer's obligation to pay for Services provided under the
Agreement shall not be excused. Changes in economic,
business or competitive condition shall not be considered
force majeure events.
11.2 Assi¢nment or Transfer. Customer shall not assign
any right, obligation or duty, in whole or in part, nor of any
other interest hereunder, without the prior written consent of
the other Party, which shall not be unreasonably withheld. All
obligations and duties of either Party under this Agreement
shall be binding on all successors in interest and assigns of
such Party. Nothing herein is intended to limit Comcast's use
of third -party consultants and contractors to perform Services
under a Sales Order.
11.3 Notices. Any notice sent pursuant to the Agreement
shall be deemed given and effective when sent by facsimile
(confirmed by first-class mail), or when delivered by
overnight express or other express delivery service, in each
case as follows: (i) with respect to Customer, to the address
set forth on any Sales Order; or (ii) with respect to Comcast,
to: Vice President/Enterprise Sales, One Comcast Center,
1701 JFK Blvd., Philadelphia, PA 19103, with a copy to Cable
Law Department, One Comcast Center, 50'h Floor, 1701 JFK
Blvd., Philadelphia, PA 19103. Each Party shall notify the
other Party in writing of any changes in its address listed on
any Sales Order.
11.4 Entire Understanding. The Agreement, together
with any applicable Tariffs, constitutes the entire understanding
of the Parties related to the subject matter hereof. The
Agreement supersedes all prior agreements, proposals,
representations, statements, or understandings, whether
written or oral, concerning the Services or the Parties' rights
or obligations relating to Services. Any prior representations,
promises, inducements, or statements of intent regarding the
Services that are not embodied in the Agreement are of no
effect. No subsequent agreement among the Parties concerning
Service shall be effective or binding unless it is made in writing
by authorized representatives of the Parties. Terms or conditions
contained in any Sales Order, or restrictive endorsements or
other statements on any form of payment, shall be void and of
no force or effect.
11.5 Tariffs. Notwithstanding anything to the contrary in
the Agreement, Comcast may elect or be required to file with
regulatory agencies tariffs for certain Services. In such event,
the terms set forth in the Agreement may, under applicable
law, be superseded by the terms and conditions of the Tariffs.
Without limiting the generality of the foregoing, in the event
of any inconsistency with respect to rates, the rates and other
terms set forth in the applicable Sales Order shall be treated as
individual case based arrangements to the maximum extent
permitted by law, and Comcast shall take such steps as are
required by law to make the rates and other terms enforceable.
If Comcast voluntarily or involuntarily cancels or withdraws a
Tariff under which a Service is provided to Customer, the
Service will thereafter be provided pursuant to the Agreement
and the terms and conditions contained in the Tariff
immediately prior to its cancellation or withdrawal. In the
event that Comcast is required by a governmental authority to
modify a Tariff under which Service is provided to Customer
in a manner that is material and adverse to either Party, the
affected Party may terminate the applicable Sales Order upon
a minimum thirty (30) days' prior written notice to the other
Party, without further liability
Enterprise Services General Terms and Conditions Ver. 1.1
11.6 Construction. In the event that any portion of the
Agreement is held to be invalid or unenforceable, the Parties
shall replace the invalid or unenforceable portion with another
provision that, as nearly as possible, reflects the original
intention of the Parties, and the remainder of the Agreement
shall remain in full force and effect.
11.7 Survival. The rights and obligations of either Party
that by their nature would continue beyond the expiration or
termination of a Sales Order shall survive termination or
expiration of the Sales Order.
11.8 Choice of Law. The domestic law of the state in
which the Service is provided shall govern the construction,
interpretation, and performance of this Agreement, except to
the extent superseded by federal law.
11.9 No Third Party Beneficiaries. This Agreement
does not expressly or implicitly provide any third party
(including users) with any remedy, claim, liability,
reimbursement, cause of action, or other right or privilege.
11.10 Parties' Authority to Contract. The persons whose
signatures appear below are duly authorized to enter into the
Agreement on behalf of the Parties name therein.
11.11 No Waiver: Etc. No failure by either Party to
enforce any rights hereunder shall constitute a waiver of such
right(s). This Agreement may be executed in counterpart
copies.
11.12 Independent Contractors. The Parties to this
Agreement are independent contractors. Neither Party is an
agent, representative, or partner of the other Party. Neither
Party shall have any right, power, or authority to enter into any
agreement for, or on behalf of, or incur any obligation or
liability of, or to otherwise bind, the other Party. This
Agreement shall not be interpreted or construed to create an
association, agency, joint venture, or partnership between the
Parties or to impose any liability attributable to such a
relationship upon either Party.
1.13 Article Headings. The article headings used herein
are for reference only and shall not limit or control any term or
provision of this Agreement or the interpretation or
construction thereof.
11.14 Comuliance with Laws. Each of the Parties agrees
to comply with all applicable local, state and federal Iaws and
regulations and ordinances in the performance of its respective
obligations under this Agreement.
Enterprise Services General Terms and Conditions Ver. 1.1
COMCAST ENTERPRISE SERVICES
PRODUCT -SPECIFIC ATTACHMENT
ETHERNET DEDICATED INTERNET SERVICES
ATTACHMENT IDENTIFIER: Ethernet Dedicated Internet, Version 1.1
The following additional terms and conditions are applicable to Sales Orders for Comcast's Ethernet Dedicated Internet
Service:
DEFINITIONS
Capitalized terms not otherwise defined herein shall have
the meaning ascribed to them in the General Terms and
Conditions.
"Estimated Availability Date" means the target date for
delivery of Service.
"Interconnection Facilities" means transmission
capacity provided by Comcast, Customer or a third -party
supplier to extend the Comcast Equipment from a
Comcast terminal to any other location (e.g., a local loop
provided by provided by a local exchange company or
other communications company).
"Services" means Ethernet Dedicated Internet Services.
ARTICLE 1. SERVICES
This attachment shall apply to Ethernet Dedicated Internet
Service. A further description of the Service is set forth in
Schedule A-1 hereto which is incorporated herein by
reference.
ARTICLE 2. PROVIDER
Service shall be provided by Comcast Business
Communications, LLC.
ARTICLE 3. CUSTOM INSTALATION FEES
Once Comcast accepts a Sales Order for Service, Comcast
will invoice Customer for all Custom Installation Fee(s).
Customer will pay the Customer Installation Fee(s) within
thirty (30) days of the invoice date unless a payment
schedule is specified in the applicable Service Order.
ARTICLE 4. PROVISIONING INTERVAL
Following its acceptance of a Sales Order, Comcast shall
notify Customer of the Estimated Availability Date
applicable to that Sales Order. Comcast shall use
commercially reasonable efforts to provision the Service
on or before the Estimated Availability Date; provided,
however, that Comcast's failure to provision by said date
shall not constitute a breach of the Agreement.
ARTICLE 5. SERVICE COMMENCEMENT DATE
Comcast shall inform Customer when Service is available
and performing in accordance with the "Technical
Specifications" set forth in Schedule A-1 hereto
("Availability Notification"). Charges for Service shall
begin to accrue as of the Service Commencement Date.
The Service Commencement Date shall be earliest of: (A)
the date on which Customer confirms receipt of and
concurrence with the Availability Notification; (B) five (5)
business days following the date of the Availability
Notification, if Customer fails to notify Comcast that the
Service does not comply materially with the specifications
set forth in Schedule A-1 hereto; or (C) the date on which
Customer first uses the Service.
ARTICLE 6. TERMINATION CHARGES:
PORTABILITY: UPGRADES
6.1 The charges set forth or referenced in each Sales
Order have been extended to Customer in reliance on the
Service Term set forth therein. To the extent that a
Service Term has not been expressly set forth in a Sales
Order, the minimum Service Term for Services is twenty
four (24) months.
6.2 Termination Charges.
A. In the event that Service is terminated following
Comcast's acceptance of the applicable Sales Order but
prior to the Service Commencement Date, Customer shall
pay Termination Charges equal to the costs and expenses
incurred by Comcast in installing or preparing to install
the Service plus twenty percent (20%).
B. In the event that Service is terminated on or
following the Service Commencement Date but prior to
the end of the applicable Service Term, Customer shall
pay Termination Charges equal to a percentage of the
monthly recurring charges remaining for the unexpired
portion of the then -current Service Term, calculated as
follows:
Ethernet Dedicated Internet Services PSA Ver. 1.1
L 100% of the monthly recurring charges with
respect to months 1-12 of the Service Term; plus
ii. 80% of the monthly recurring charges with
respect to months 13-24 of the Service Term;
plus
iii. 65% of the monthly recurring charges with
respect to months 25 through the end of the
Service Term; plus
iv. 100% of any remaining, unpaid Custom
Installation Fees.
Termination Charges shall be immediately due and
payable upon cancellation or termination and shall be in
addition to any and all accrued and unpaid charges for the
Service rendered by Comcast through the date of
cancellation or termination.
6.3 Exclusions. Termination Charges shall not apply
to Service terminated by Customer as a result of
Comcast's material and uncured breach in accordance
with Article 5.2 of the General Terms and Conditions.
6.4 Portability. Customer may terminate an existing
Service (an "Existing Service") and turn up a replacement
Service (i.e., having different termination points on
Comcast's network) (a "Replacement Service") without
incurring Termination Charges with respect to the
Existing Service, provided that (a) the Replacement
Service must have a Service Term equal to or greater than
the complete Service Term of the Existing Service; (b) the
Replacement Service must have monthly recurring
charges equal to or greater than the monthly recurring
charges for the Existing Service; (c) Customer submits a
Sales Order to Comcast for the Replacement Service
within ninety (90) days after termination of the Existing
Service and that order is accepted by Comcast; (d)
Customer reimburses Comcast for any and all installation
charges that were waived with respect to the Existing
Service; and (e) Customer pays the actual costs incurred
by Comcast in installing and provisioning the
Replacement Service.
7.5 Upgrades. Customer may upgrade the speed or
capacity of an Existing Service without incurring
Termination Charges, provided that (A) the upgraded
Service (the "Upgraded Service") must assume the
remaining Service Term of the Existing Service; (B) the
Upgraded Service must have the same points of
termination on Comcast's network as the Existing Service;
(C) Customer submits a Sales Order to Comcast for the
Upgraded Service and that order is accepted by Comcast;
(D) Customer pays Comcast's applicable nonrecurring
charges for the upgrade; and (E) Customer agrees to pay
the applicable monthly recurring charges for the Upgraded
Service commencing with the upgrade.
ARTICLE 7. ADDITIONAL INFORMATION
As necessary for the interconnection of the Service with
services provided by others, Comcast may request (as
applicable), and Customer will provide to Comcast,
circuit facility assignment information, firm order
commitment information, and design layout records
necessary to enable Comcast to make the necessary cross -
connection between the Service and Customer's other
service provider(s). Comcast may charge Customer
nonrecurring and monthly recurring cross -connect
charges to make such connections.
ARTICLE 8. TECHNICAL SPECIFICATIONS:
SERVICE LEVEL AGREEMENT
The technical specifications applicable to the Service are
set forth in Schedule A-1 hereto. The service level
agreement applicable to the Service is set forth in a
Schedule A-2 hereto.
Ethernet Dedicated Internet Services PSA Ver. 1.1
COMCAST ENTERPRISE SERVICES
PRODUCT -SPECIFIC ATTACHMENT
ETHERNET DEDICATED INTERNET SERVICES
SCHEDULE A-1
SERVICE DESCRIPTIONS AND TECHNICAL SPECIFICATIONS
COMCAST ETHERNET DEDICATED INTERNET SERVICES
Ethernet Dedicated Internet Version 1.1
Comcast's Ethernet Dedicated Internet Service ("Service") will be provided in accordance with the service
descriptions, technical specifications set forth below:
Service Descriptions
Ethernet Dedicated Internet Service (EDIT. EDI provides reliable, simple, and flexible access to the Internet. The
Service is offered with a 10Mbps, 100Mbps or 1Gbps Ethernet User -to -Network Interface (UNI) in speed increments
from 1 Mbps to 1 Gbps subject to available capacity. The Service provides an Ethernet Virtual Connection (EVC) from the
Customer Service Location to a Comcast Internet Point of Presence (POP) router.
Technical Specifications
1. Ethernet User -to -Network Interface. The Service provides the bidirectional, full duplex transmission of
untagged Ethernet frames using a standard IEEE 802.3 Ethernet interface (UNI) to attach to the customer's router. Figure
I lists the available UNI physical interfaces and their available Committed Information Rates (CIR) bandwidth increments
and Committed Burst Sizes (CBS).
UNI
UNI
.;:;.:. •
Physical:
Speed
,
Tnterfacp
1Mb s
IOMb s
1013aseT
100Mb s
100BaseT
1000BaseT
1 Gbps
or
1000BaseSX
Tlncremeiilf.:
.;:;.:. •
(bites):;::
1Mb s
25,000
IOMb s
250,000
100Mbps
2,500,000
Figure 1: Available UNI interface types and CBS values for different CIR Increments
2. Traffic Management. Comcast's network traffic -policing policies restrict traffic flows to the subscribed,
Committed Information Rate (CIR). If the Customer -transmitted bandwidth rate exceeds the subscription rate (CIR) and
burst size (CBS), Comcast will discard the non-conformant packets. The Customer's router must shape their traffic to
their contracted CIR.
3. Maximum Frame Size. The Service supports a maximum transmission unit (MTU) frame size of 1518 bytes
including Layer 2 Ethernet header and FCS.
4. Layer 2 Control Protocol (L2CP) Processing. All L2CP frames are discarded at the UNI.
5. IP Address Allocation. IP address space is a finite resource that is an essential requirement for all Internet
access services. Comcast assigns eight (8) routable IP addresses to each customer circuit. Customer can obtain additional
IP addresses if required based on ARIN guidelines and by completing an IP address request form.
Ethernet Dedicated Internet Services PSA Ver. 1.1
6. Domain Name Service. Comcast provides primary and secondary Domain Name Service (DNS). DNS is the
basic network service that translates host and domain names into corresponding IP addresses, and vice -versa.
7. Border Gateway Protocol (BGP) Routing. Comcast supports BGP -4 routing as an optional service feature.
BGP -4 allows Customers to efficiently multi -home across multiple ISP networks. The Service requires an Autonomous
System Number (ASN) be assigned to a customer by the American Registry for Internet Numbers (ARIN). Customers
should also be proficient in BGP routing protocol to provision and maintain the Service on their router. Additional
information and requirements for BGP routing will be provided to the customer upon request. Comcast supports private
peering if the Customer is multi -homed to Comcast's network only.
8. Online Reporting. Comcast provides the Customer with a password -protected web portal to access online
reports containing their historical network traffic information. Reports may vary based on the Customer's Service.
Ethernet Dedicated Internet Services PSA Ver. 1.1
COMCAST ENTERPRISE SERVICES
PRODUCT -SPECIFIC ATTACHMENT
ETHERNET DEDICATED INTERNET SERVICES
SCHEDULE A-2
SERVICE LEVEL AGREEMENT
Ethernet Dedicated Internet Version 1.1
Comcast's Ethernet Dedicated Internet Service is backed by the following Service Level Agreement ("SLA"):
Definitions
Capitalized terms not otherwise defined herein shall have the meaning ascribed to them in the Ethernet Dedicated Internet
Services PSA or the General Terms and Conditions.
"Planned Service Interruption" means any Service Interruption caused by planned work such as scheduled
maintenance or planned enhancements or upgrades to the network.
"Service Interruption" means a complete loss of signal that renders the Service unusable.
Service Level Agreement(SLA)
Company's liability for any Service Interruption (individually or collectively, "Liability"), shall be limited to the amounts
set forth in Table 1 below. . For the purposes of calculating credit for any such Liability, the Liability period begins
when the Customer reports an interruption in the portion of the Service to Company, provided that the Liability is reported
by Customer during the duration of the Liability, and, a trouble ticket is opened; the Liability shall be deemed resolved
upon closing of the same trouble ticket or the termination of the interruption, if sooner, less any time Comcast is awaiting
additional information or premises testing from the Customer. In no event shall the total amount of credit issued to
Customer's account on a per -month basis exceed 50% of the total monthly recurring charge ("MRC") set forth in the
Sales Order. Service Interruptions will not be aggregated for purposes of determining credit allowances. To qualify,
Customer must request the Credit from Comcast within thirty (30) days of the interruption. Customer will not be entitled
to any additional credits for Service Interruptions. Comcast shall not be liable for any Liability caused by force majeure
events, Planned Service Interruptions or Customer actions, omission or equipment.
TABLE 1
Length of Service Interruption: Amount of Credit:
Less than 4 minutes
None
At least 4 minutes but less than 4 hours
5% of Total MRC
At least 4 hours but less than 8 hours
10% of Total MRC
At least 8 hours but less than 12 hours
20%of Total MRC
At least 12 hours but less than 16 hours
30% of Total MRC
At least 16 hours but less than 24 hours
40% of Total MRC
At least 24 hours or greater
50% of Total MRC
Ethernet Dedicated Internet Services PSA Ver. 1.1
Monitoring, Technical Support and Maintenance
Network Monitorinp. Comcast monitors Service on a 24x7x365 basis.
2. Technical Support. Comcast provides a toll-free trouble reporting telephone number to the Customer Business
Services Network Operations Center (`BNOC") that operates on a 24x7x365 basis. Comcast provides technical support
for service -related inquiries. Technical support will not offer consulting or advice on issues relating to CPE or other
equipment not provided by Comcast.
Escalation. Reported troubles are escalated within the Comcast BNOC to meet the
response/restoration interval described below (Response and Restoration Standards). Service issues
are escalated within the Comcast BNOC as follows: to a Supervisor at the end of the applicable
time interval plus one (1) hour; to a Manager at the end of the applicable time interval plus two (2)
hours, and to a Director at the end of the applicable time interval plus four (4) hours.
a. Maintenance. Comcast's standard maintenance window is Sunday to Saturday from 12:00am to
6:00am local time. Scheduled maintenance is performed during the maintenance window and will
be coordinated between Comcast and the Customer. Comcast provides a minimum of forty-eight
(48) hour notice for non -service impacting scheduled maintenance. Comcast provides a minimum
of seven (7) days notice for service impacting planned maintenance. Emergency maintenance is
performed as needed without advance notice to Customer.
3. Comcast provides certain Comcast Equipment for provisioning its services and the delivery of the UNI, which
will reside on the Customer -side of the Demarcation Point. Comcast will retain ownership and management responsibility
for this Comcast Equipment. This Comcast Equipment must only be used for delivering Services. Customers are required
to shape their egress traffic to the Committed Information Rate ("CIR") identified in the Sales Order. Comcast will be
excused from paying SLA credits if the Service Interruption is the result of Customer's failure to shape their traffic to the
contracted CIR or utilizing Comcast Equipment for non -Comcast provided services.
Response and Restoration Standards
Comcast has the following response and restoration objectives:
CATEGORY
OBJECTIVE
MEASUREMENT
REMEDIES
Mean Time to Respond
Telephonically to Call
15 minutes
Averaged Over A Month
Escalation
see above
(see above)
Mean Time to Restore Fiber
6 hours
Averaged Over A Month
Escalation
(see above)
The parties agree that if either party hereto, in its reasonable sole discretion, determines that an emergency action is necessary
to protect its own network, the party may, after engaging in reasonable and good faith efforts to notify the other party of the
need to block, block any transmission path over its network by the other party where transmissions do not meet material
standard industry requirements. The parties further agree that none of their respective obligations to one another under the
Agreement will be affected by any such blockage except that the party affected by such blockage will be relieved of all
obligations to make payments for charges relating to the circuit(s) which is so blocked and that no party will have any
obligationto the otherparty for any claim,judgment or liability resulting from such blockage.
Remedv Processes
Ethernet Dedicated Internet Services PSA Ver. 1.1
All claims and rights arising under this Service Level Agreement must be exercised by Customer in writing within thirty
(30) days of the event that gave rise to the claim or right. The Customer must submit the following information to the
Customer's Comcast account representative with any and all claims for credit allowances: (a) Organization name; (b)
Customer account number; and (c) basis of credit allowance claim (including date and time, if applicable). Comcast will
acknowledge and review all claims promptly and will inform the Customer by electronic mail or other correspondence
whether a credit allowance will be issued or the claim rejected, with the reasons specified for the rejection.
Exceptions to Credit Allowances
A Service Interruption shall not qualify for the remedies set forth herein if such Service Interruption is related to,
associated with, or caused by: scheduled maintenance events; Customer actions or inactions; Customer -provided power or
equipment; any third party not contracted through Comcast, including, without limitation, Customer's users, third -party
network providers, any power, equipment or services provided by third parties; or an event of force majeure as defined in
the Agreement.
Other Limitations
The remedies set forth in this Service Level Agreement shall be Customer's sole and exclusive remedies for any Service
Interruption, outage, unavailability, delay, or other degradation, or any Comcast failure to meet the service objectives.
Ethernet Dedicated Internet Services PSA Ver. 1.1
RESOLUTION NO. 2010-171
A RESOLUTION OF THE LODI CITY COUNCIL
AUTHORIZING THE CITY MANAGER TO EXECUTE A
THREE-YEAR AGREEMENT WITH COMCAST FOR
HIGH-SPEED INTERNET SERVICE
WHEREAS, the City's contract with AT&T for Internet services will expire in
December 2010; and
WHEREAS, over the past three years, new competition has entered the Internet
service market, mainly from Comcast; and
WHEREAS, in addition to its consumer products line, Comcast offers business
class services to organizations with more industrial -sized needs; and
WHEREAS, Comcast is offering the City comparable Internet service for less
than half the AT&T price, at an annual savings of at least $18,000; and
WHEREAS, staff recommends switching its Internet service provider from AT&T
to Comcast for an immediate savings of more than $18,000 per year with no anticipated
difference in Internet service levels.
NOW, THEREFORE, BE IT RESOLVED that the Lodi City Council does hereby
authorize the City Manager to execute a three-year agreement with Comcast for high-
speed Internet service in an amount not to exceed $43,840.
Date: October 6, 2010
------------------------------------------------------------------
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hereby certify that Resolution No. 2010-171 was passed and adopted by the
Lodi City Council in a regular meeting held October 6, 2010, by the following vote:
AYES:
NOES:
ABSENT:
ABSTAIN
COUNCIL MEMBERS — Hansen, Hitchcock, Johnson, Mounce,
and Mayor Katzakian
COUNCIL MEMBERS — None
COUNCIL MEMBERS — None
COUNCIL MEMBERS — None
2010-171