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HomeMy WebLinkAboutC-1602G 8-i v - 5' S� r�ri � Q T5 f 6 n "(O' n o �..1e h �...� /GoZ TST On Ramp, Inc. APR U 2 1959 Network Customer Service Agreement CITY OF ARCADIA THIS AGREEMENT is made and entered into as of the date last executed, by and between: CITY CLERK City of Arcadia 240 W. Huntington Drive, Arcadia, CA 91007 (hereinafter referred to as "CUSTOMER ') and TST On Ramp, Inc. (hereinafter referred to as "COMPANY') organized and existing under the laws of the State of California, having its principal place of business at 351 S. Thomas St, Pomona CA 91766. WITNESSETH: WHEREAS, the CUSTOMER is desirous of securing for itself services which provide access to various data communication capabilities related to connection to the Internet, and WHEREAS, the COMPANY provides Internet connectivity, NOW, THEREFORE, in consideration of the foregoing and of the mutual promises contained herein, it is agreed as follows: 1. SERVICE. The COMPANY agrees to provide to CUSTOMER those services ( "SERVICE" or "SERVICES ") selected by the CUSTOMER as evidenced by the Service Registration Form (ATTACHMENT "A ") attached hereto and made a part hereof. The CUSTOMER may apply for new or additional SERVICES at any time by completing a new ATTACHMENT "A ". 2. DATE OF SERVICE. SERVICE shall be provided to the CUSTOMER by the COMPANY from the date that installation is completed ( "ANNIVERSARY DATE ") for a month -to -month term. However no SERVICE shall be provided the COMPANY or expected by the CUSTOMER prior to the date of receipt of this Agreement fully executed by both parties, along with the payment of the setup fee and first terms billing as provided for in ATTACHMENT "A'. 3. AUTOMATIC RENEWAL. Unless terminated as provided for in the Agreement, this Agreement shall automatically renew monthly on the ANNIVERSARY DATE. 4. INSTALLATION. The COMPANY and the CUSTOMER shall establish a mutually acceptable date for installation of any equipment required to initiate the SERVICE for CUSTOMER at the HUB. The CUSTOMER agrees to provide those aspects of installation that are its responsibility as specified in ATTACHMENT "A ". The COMPANY will not be responsible for delays in installation for reasons beyond its control, including, but not limited to, delays in the delivery of required equipment, delays in provision of telephone lines provided by third parties . 5. BEST EFFORTS TO PROVIDE CONTINUOUS SERVICE. The COMPANY shall make its best effort to provide the SERVICES selected by the CUSTOMER in conformity with service procedures described in ATTACHMENT `B" Upon notice from the CUSTOMER to the COMPANY, in the manner prescribed in ATTACHMENT "B ", of a failure of the network, or the deterioration of SERVICE, the COMPANY shall perform those diagnostics and tests that, in the sole and exclusive opinion of the COMPANY, are likely to diagnose and potentially repair the problem. The CUSTOMER agrees that, because of changes in technology or other factors beyond the control of the COMPANY, the COMPANY shall have the right to change its service procedures at any time by issuing to CUSTOMER a new ATTACHMENT "B ". 6. FORSE MAJEURE. Provider shall not be held liable or responsible to the CUSTOMER for delay or failure in fulfilling this Agreement, by circumstances beyond its control, including without limitation, where such delay or failure is due to or resulting from Acts of God, fire, flood, storm, tempest, riots, wars, hostilities, civil commotion, strikes, or governmental actions including failure to grant necessary permits or authorizations. AIN 7. PRICES. The COMPANY agrees to charge and the CUSTOMER agrees to pay prices for SERVICES as contained in ATTACHMENT 'W'. Prices are subject to change at the COMPANY's sole discretion upon sixty (60) days written notice to CUSTOMER. S. PAYMENT. The CUSTOMER agrees to pay the COMPANY for the First term (Monthly, Quarterly, or Annually) ATTACHMENT "A", for SERVICES upon completion of installation, and is due prior to connectivity of SERVICE. All invoice TERMS shall commence on the ANNIVERSARY DATE, and are due on the ANNIVERSARY DATE. 9. LATE CHARGES. If payments are not received within five (5) days of the due date, a late payment charge of one percent (1 %), or the maximum rate permitted by law, will be added to the amount due. When payments are more than five (5) days past due, the COMPANY may disconnect the SERVICE and terminate this agreement. Once the service is disconnected any restoration of service will require the payment of A) $500.00 reconnection fee, B) all past due payments, and C) payment in advance for the next month SERVICE. Immediate disconnection of service will occur when payment is not received by the 5th day following the due date and the COMPANY is not responsible for issuance of disconnection warnings. The CUSTOMER is responsible for making payment on or before the due date. Failure to receive an invoice is not an acceptable reason for late payments. 10. WARRANTY. THE COMPANY MAKES NO WARRANTIES EITHER EXPRESS OR IMPLIED WITH REGARD TO: A) THE SPECIFIC NATURE OF THE COMPANY CUSTOMER SERVICE; B) THE MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE OF THE SERVICE, C) THE RELIABILITY OR CONTENT OF ANY INFORMATION PASSING THROUGH ANY NETWORK, INCLUDING BUT NOT LIMITED TO THE LOSS OF DATA RESULTING FROM DELAYS, NON - DELIVERY, INCORRECT DELIVERY, AND ANY AND ALL SERVICE INTERRUPTIONS CAUSED BY THE COMPANY, ITS EMPLOYEES OR AGENTS. 11. NETWORK SECURITY. The use of SERVICE by CUSTOMER must not impact the security of the COMPANY or any other CUSTOMER of the COMPANY or any of their computing environments. Any security problem that in the sole opinion of the COMPANY is associated with CUSTOMER's network, CUSTOMER's computers, or CUSTOMER's use of SERVICE, whether authorized by CUSTOMER or not, may result in the immediate disconnection of SERVICE by the COMPANY. The procedures for resolving network security problems are described in ATTACHMENT "B ". If, in the COMPANY'S sole opinion, the CUSTOMER's use of SERVICE, can not be reconnected in a secure fashion, the COMPANY shall have the right to terminate this Agreement and provide the CUSTOMER with a refund as provided for in this Agreement. 12. ACCEPTABLE USE POLICY. The use of the SERVICE by CUSTOMER, its employees, agents, and any party granted access to SERVICE by CUSTOMER: A) must be for lawful purposes only; B) if CUSTOMER accesses other regional and long haul networks via the SERVICE, The Customer must be compliance with all policies and rules of any and all networks accessed or transmitted by traffic sent by the CUSTOMER through the COMPANY; C) must not interfere with the operation of the COMPANY or any other Customer, and; D) must not be "spam" (that is, the sending of a message to multiple news groups and /or mailing lists, especially where the topic of the message is not germane to the normal subject matter of many of those new groups or mailing lists). If, in the sole opinion of the COMPANY, CUSTOMER has been or is violation of these policies, the COMPANY shall be entitled to terminate this Agreement ( "TERMINATION FOR CAUSE ") as provided for herein. Significant abuse of the ACCEPTABLE USE POLICY may also result in the immediate disconnection of SERVICE by the COMPANY , until such problems can be resolved using the same procedures as for network security problems. 13. PUBLICATIONS. The COMPANY shall have the right to publish information about the network, its sites, its topology, capacity, and statistical information about the data transmitted on the network. The CUSTOMER agrees and acknowledges that it may be necessary, from time to time, for the COMPANY to advertise the nature of the network and such publicity may include notice of the CUSTOMER's participation in SERVICE. 2 00*A ON 14. NON - EXCLUSIVE. Nothing in this Agreement shall be construed to limit the freedom of the COMPANY in engaging in similar Agreements with other parties. 15. TERMINATION. Except as otherwise provided herein, this Agreement may be terminated by either party at any time upon thirty (30) days prior written notice to the other party. This Agreement may be terminated immediately by the COMPANY upon written notice to the CUSTOMER if the COMPANY is exercising its rights of TERMINATION FOR CAUSE. 'TERMINATION OF CAUSE" shall be defined as termination for breach of this Agreement by the CUSTOMER, including without limitation breach of the provisions of Paragraph 11 (Network Security) and Paragraph 12 (Acceptable Use Policy) above. Customer may terminate this Agreement for cause upon written notice to Company. "Cause shall be the breach by Company of any material provision of this Agreement. A) For any termination, except TERMINATION FOR CAUSE, The COMPANY agrees to proceed in an orderly fashion to limit or terminate any future charges to the CUSTOMER. The CUSTOMER agrees to reimburse the COMPANY for any and all costs associated with termination including, without limitation, all costs, non - cancelable commitments incurred prior to the receipt of the notice of termination. The CUSTOMER agrees that the installation fee is non - refundable. B) Upon TERMINATION FOR CAUSE, CUSTOMER agrees to pay the COMPANY a disconnection fee of $500, and the COMPANY agrees to waive fees for SERVICES from the date of disconnection. 16. DAMAGES. The COMPANY shall not be held liable for any liability nor any direct, indirect, or consequential damages with respect to any claim by the CUSTOMER or any third party on account of or arising out of the use of SERVICE. IN NO EVENT SHALL EITHER PARTY BE LIABLE FOR CONSEQUENTIAL, INCIDENTAL OR SPECIAL (INCLUDING MULTIPLE OR PUNITIVE DAMAGES ARISING OUT OF THIS AGREEMENT)). 17. INDEMNITY AND INSURANCE. A) Hold Harmless and Indemnity - Company shall defend, indemnify and hold harmless customer, its officers and employees from any claims, suits and liabilities for damage to person or property arising out of Company's errors, omissions, or negligent acts. B) Insurance - Company shall carry commercial liability insurance with combined single limits of at least $1,000,000 naming the City of Arcadia as additional insured. Proof of such insurance in a form and content approved by the Arcadia City Attorney is a condition precedent to execution of this Agreement by Arcadia. Insurance shall be maintained with The Travelers Indemnity Company, One Tower Square, Hartford, Connecticut 06183, Policy Number, I -680- 809W086-)-TCT -99. Company shall also maintain professional liability insurance covering errors and omissions providing protection of at least $1,000,000 for errors and omissions with respect to losses, claims, and liability arising from action of consultants in performing pursuant to this Agreement. C) Workers Compensation and Liability - A program of Workers' Compensation insurance in an amount, form and as broad as to meet all applicable requirements of the Labor Code of the State of California, including Employer's Liability with limits of at least $500,000 per occurrence. 18. SURVIVAL. The provisions of Paragraphs 10 (Warranty), 16 (Indemnification) and 17 (Damages) shall survive the termination or expiration of this Agreement irrespective of the reasons therefor. 19. GOVERNING LAW. This Agreement shall be governed by the laws of the State of California. 20. SETTLEMENT OF DISPUTES. Any controversy or claim arising out of or relating to this agreement, may be settled in accordance with the Rules of the American Arbitration Association, if the parties agree to arbitration. The Appointing Authority shall be the President of the American Arbitration Association. Judgment upon the award rendered by the Arbitrator(s) may be entered in any court having jurisdiction thereof. The Arbitrator(s)' award may include compensatory damages and costs of action (including 3 OpIk ON attorney's fees) against either party but under no circumstances will the Arbitrator(s) be authorized to nor shall they award punitive damages or multiple damages against either party. 21. RESALE POLICY. Resale of Internet Bandwidth /Connectivity to other Internet Service Providers is prohibited without the expressed written approval by the COMPANY. Violation of this stipulation will result in immediate termination of service. 22. CONFIDENTIALITY. Subject to the California Public Records Act,during the Term of the Agreement and after the end of the Term, neither party may disclose to any third party and may not use any trade secret, confidential information, business idea, or customer list of the other party acquired by other party before, during or after the relationship with each other as consequence of this Agreement. In addition to remedies at law for any breach of obligation hereunder regarding protection of information, both parties acknowledges that equitable relief, in the form of injunction or other equitable decree, may also lie. 23. GENERAL PROVISIONS. A. Each party to this Agreement is an independent contractor. B. The captions of sections herein are intended for convenience only and the same shall not be interpretive of the content of such section. C. Should any provision of this Agreement be held unenforceable or in conflict with the law of the jurisdiction, then the validity of the remaining provisions shall not be affected by such a holding. No waiver by either party of any breach or default shall be deemed as a waiver of prior or subsequent default of the same or other provisions of this Agreement. D. This Agreement shall inure to the benefit of the COMPANY , its successors and assigns, but will be personal to the CUSTOMER and shall be assignable by the CUSTOMER only with the prior written consent of the COMPANY which may be withheld for any reason. The COMPANY shall not assign, subcontract, sell or transfer this contract or any portion of the work to be performed without the written consent of the City Manager or the City Manager's designee. Any such action, without the prior approval of the City Manager or the City Manager's designee, shall be grounds for immediate termination of this agreement. E. Any notice required by this Agreement shall be deemed to have been properly received when delivered in person or two (2) days after being mailed by registered or certified first class mail, return receipt requested, or Federal Express to the addresses of the parties set forth below, or to such other addresses as may be designated from time to time by written notice to the other party. F. All periods of time referred to in this Agreement shall include all Saturdays, Sundays and state or national holidays, unless the period of time specifies business days, provided that if the date or last date to perform any act or give any notice with respect to this Agreement shall fall on a Saturday, Sunday or state or national holiday, such act or notice may be timely performed or given on the next succeeding day which is not a Saturday, Sunday or state or national holiday. G. Submission of this instrument for examination or signature by Customer does not constitute an agreement and it is not effective as an agreement, or otherwise, until execution and delivery by both Customer and Companies. 24. ENTIRE AGREEMENT. This is the entire Agreement between the parties relative to the SERVICE, it supersedes any prior or contemporaneous written or oral agreements thereon. There are no oral understandings, terms or conditions, and neither party has relied upon any representations, express or implied, not contained in this Agreement. All prior understandings, terms or conditions are deemed merged into this Agreement. This Agreement may not be amended, modified or changed orally, but only by subsequent agreement in writing by the party against whom enforcement of any waiver, amendment, change, modification, or discharge is sought and signed by duly authorized officers or representatives of the parties. 4 Am- EXECUTED for the parties as the date last executed by their respective representatives, who are duly authorized to execute this Agreement. IN WITNESS WHEREOF, the parties have caused their authorized representatives to execute and deliver duplicate originals of the Agreement. 4"1 Authorized Customer Signature William R. Kelly City of Arcadia Date APPROVED AS TO FORM; b�41 �1/ 62�—' Michael H. Milldr City Attorney City of Arcadia &7 TST On Ramp, Inc. Ken li on - President 30 Date 5 To Attachment A TST On Ramp An Internet Service Provider 1011 N. Towne Ave., Suite B Pomona, CA 91767 909.620.7724 Fax 909.620.8174 City of Arcadia 240 W. Huntington Dr. P.O. Box 60021 Arcadia, CA 91066 Ship To: (Same) 1 NWUNCE INVOICE NO: 21599 DATE: March 30, 1999 SALESPERSON P.O. NUMBER DATE SHIPPED SHIPPED VIA F.O.B. POINT TERMS House 68072 Open 128K Frame Relay Monthly Internet Access Monthly Fee Destination 50% upon receipt 50% upon install QUANTITY DESCRIPTION UNIT PRICE AMOUNT 1 128K Fractional Frame Relay Setup Fee $500 $500 4 128K Frame Relay Monthly Internet Access Monthly Fee $450 $1,800 1 NT Server — 256K Ram $1,850 $1,850 1 NT Server Software $700 $700 SUBTOTAL $4,850 Tax $211 TOTAL DUE $5,061 Make all checks payable to: TST On Ramp If you have any questions concerning this invoice, please call us at 909.620.7724 or email accounting @tstonramp.com M io ATTACHMENT B SERVICE POLICIES AND PROCEDURES The COMPANY provides a Network Operation Center (NOC) which is staffed on a normal working hour basis -- normally 10 a.m. to 10 p.m. Monday through Friday (holidays excepted). If the CUSTOMER believes that the SERVICE has deteriorated or failed the CUSTOMER may contact the COMPANY in the following ways: a) Email: Send a message <staff@tstonramp.com> b) Phone: Call the COMPANY Service at 909 - 620 -7724 c) Fax: Send a FAX to "TST On Ramp" at 909 - 620 -8174 The CUSTOMER agrees and acknowledges: a) that it is connected to SERVICE via a single line to the HUB; b) that the monitoring and maintenance of the line is the responsibility of CUSTOMER; c) that the monitoring and maintenance of the HUB is the COMPANY's responsibility; d) that the HUB is connected a long haul Internet Service Provider; and e) that the COMPANY has limited ability to control all problems that may arise within this complex structure. Certain security or acceptable use problems may cause the COMPANY to immediately disconnect the CUSTOMER. Upon determining any network security or acceptable use problem, the COMPANY shall make reasonable attempts for a reasonable period of time to resolve the problem with the CUSTOMERSs technical personnel so as to prevent a recurrence of the same or similar problems in the further by making revisions to the CUSTOMER's network, software, procedures, or other measures believed by the COMPANY to be appropriate. If, in the COMPANY'S sole opinion, sufficient revisions are made to warrant reconnection of SERVICE, the COMPANY shall reconnect CUSTOMER to SERVICE. Certain CUSTOMERS may be multi- connected to the Internet via the COMPANY or via other means. Any such CUSTOMER must work with the COMPANY technical staff to ensure that technical compatibility is established and maintained with regard to routing and other technical aspects of Internet operation. Failure to maintain technical compatibility of the Internet operation may cause the COMPANY to disconnect the CUSTOMER until the technical problems can be resolved Due to routing constraints in the Internet, it is extremely important that the COMPANY propagate as few as possible routes into the backbone service providers. For this reason the COMPANY will provide the CUSTOMER IP addresses from the COMPANY address block (a). Upon termination of this Agreement, the CUSTOMER shall return to the COMPANY, any IP address numbers delegated by the COMPANY to the CUSTOMER. (1) In some cases, CUSTOMERS may have their own address block and may need to have routes using that address block propagated to the Internet. It is expected that the Internet backbone service providers in the near future may either (a) filter out and make ineffective such routes, or (b) charge a fee for handling such routes. The COMPANY will apply these constraints to the CUSTOMERS. In any case, the COMPANY may in the near future charge a fee for each route that is propagated to the Internet backbone service provider that is outside the COMPANY address block. 7 A411"O 11® CERTIFICa'vE OF INSURANCE ISSUE DATE (MM/D Ar PRODUCER 3/31/99 THIS CERTIFICATE IS ISSUED AS A MATTER OF INFORMATION ONLY AND CONFERS NO RIGHTS UPON THE CERTIFICATE HOLDER. THIS CERTIFICATE DOES NOT AMEND, EXTEND OR ALTER THE COVERAGE AFFORDED BY THE POLICIES BELOW. PETE ROBERTSON INSURANCE INC P O BOX 490 COMPANIES AFFORDING COVERAGE CLAREMONT CA 91711 COMPANY A LETTER . .. .TRAELERS INSURANCE ................... V _ ............ .......... ................. . ............................. ............._ _......... .....................;...LETTER COMPANY B INSURED TRAVELERS INSU . COMPANY C T S T ON RAMP INC LETTER 351 S THOMAS ST COMP :................... ANY ..................................................................................................................... ............................... D POMONA CA 91766 LETTER CAL COMP INSURANCE COMPANY . _....... .... _ . COMPANY E LETTER COVERAGES THIS IS TO CERTIFY THAT THE POLICIES OF INSURANCE LISTED BELOW HAVE BEEN ISSUED TO THE INSURED NAMED ABOVE FOR THE POLICY PERIOD INDICATED, NOTWITHSTANDING ANY REQUIREMENT, TERM OR CONDITION OF ANY CONTRACT OR OTHER DOCUMENT WITH RESPECT TO WHICH THIS CERTIFICATE MAY BE ISSUED OR MAY PERTAIN, THE INSURANCE AFFORDED BY THE POLICIES DESCRIBED HEREIN IS SUBJECT TO ALL THE TERMS, EXCLUSIONS AND CONDITIONS OF SUCH POLICIES. LIMITS SHOWN MAY HAVE BEEN REDUCED BY PAID CLAIMS. __ .._.........._ _ .......... _ ..... ...... T TYPE OF INSURANCE LTR POLK;Y NUMBER ......... ..._._...__........ ......... .... ..... ......... ......................... POLICY EFFECTIVE 'POLICY EXPIRATION: DATE (EFFECTIVE DATE (MM/DD/YY) ; LIMITS A GENERAL LIABILITY 16 8 0 8 0 9 W O 8 6 0 T CT 7/01/98 7/01/99 GENERAL AGGREGATE 52 0 0 0 0 0 0 X COMMERCIAL GENERAL LIABILITY PRODUCTS -COMP /OP AGG. S2 000 OOO CLAIMS MADE X OCCUR.: PERSONAL a ADV. INJURY $1000,000 OWNER'S 8 CONTRACTOR'S PROT., _ EACH OCCURRENCE $1000 0 O O ..__.. ... _. .. FIRE DAMAGE (Any Orr Me) $1000,000 . ....... .._ MED. EXPENSE (Any one person) $5 00 0 f B . AUTOMOBILE UABILMY 16 8 0 8 0 9 W 0 8 6 0 T C T 7/01/98 7 0 1 9 9 - / / COMBINED SINGLE ANY AUTO S LIMIT 1000 000 -- -- ALL OWNED AUTOS X SCHEDULED AUTOS BODILY INJURY (Per person) _ X HIRED AUTOS _ ... _ _ ..........< ....... ............................... ...... X NON -OWNED AUTOS ._...._._ BODILY i BODILY INJURY (Per accident) _ GARAGE LIABILITY _ < .............. . ...... ........................... i PROPERTY DAMAGE : EXCESS LIABILITY EACH OCCURRENCE $ UMBRELLA FORM _... ........_.. - AGGREGATE $ OTHER THAN UMBRELLA FORM D WORKER'S COMPENSATION L9 8 615 9 6 5 7 6/10/98 6/10/99 X STATUTORY LIMITS .._ AND ........................ _...... EACH ACCIDENT S.1.00.0.1.0.0 0 EMPLOYERS' UABILMY DISEASE -- POLICY LIMIT $1000,000 DISEASE- -EACH EMPLOYEE S1000,000 OTHER DESCRIPTION OF OPERATIONS /LOCATIONS/VEHICLES /SPECIAL ITEMS CERTIFICATE HOLDER IS NAMED AS AN ADDITIONAL INSURED CERTIFICATE HOLDER CANCELLATION SHOULD ANY OF THE ABOVE DESCRIBED POLICIES BE CANCELLED BEFORE THE CITY OF ARCADIA EXPIRATION DATE TH2REOF, THE ISSUING COMPANY WILL ENDEAVOR TO OFFICE OF THE CITY ATTORNEY MAIL _10 _ DAYS WRITTEN NOTICE TO THE CERTIFICATE HOLDER NAMED TO THE 240 W HUNTINGTON DRIVE LEFT, BUT FAILURE TO MAIL SUCH NOTICE SHALL IMPOSE NO OBLIGATION OR ARCADIA CA 91066 LIABILITY OF ANY KIND UPON THE COMPANY, ITS AGENTS OR REPRESENTATIVES. AUTHOR REPgE3 E 1 ,EJT�E,V`pR�— OB�R�6-v) LC(A) ACORD 25 -S (7/90) Ivo OACORD CORPORATION 1990'