HomeMy WebLinkAboutItem 06.l
Date: Item No.
CHARTER FIBERLINK LEASE RENEWAL
Proposed Action
Staff recommends adoption of the following motion: Move to approve a one year and a three year lease
agreement with Charter Fiberlink CCO, LLC.
Overview
The city currently has a lease agreement with Charter for the use of their fiber network to allow 100Mbs
data service to city facilities. The annual cost of the current lease with Charter is $40,500. The agreement
includes connections to the following facilities:
• City Hall
• Heritage Center
• Fire Station #1
• Fire Station #2
• Fire Station #3
• Fire Station #4
• Lakeville Area Art Center
• Heritage Liquor Store
• Kenrick Liquor Store
• Police Station
• Water Treatment Facility
• Central Maintenance Facility
As when all city contracts are due to expire, staff researched other options to determine if there was a
more cost effective way to obtain the same or better service. The following are several options staff
considered:
New Fiber Lease with Frontier Communications
Staff requested a proposal from Frontier Communications that would provide the same service to all city
facilities as served under the current Charter lease. Frontier indicated they would be willing to install a
fiber network for the sole use of the city to connect our facilities. However, the cost to install the network
would be $890,000 to $1,000,000, including service fees. A five year payment plan to pay for the
installation and service fees would cost approximately $36,000 per month or $432,000 per year. After the
five year period the monthly/yearly costs would only be for the service fee as negotiated at that time.
Frontier would retain ownership of the fiber network infrastructure.
City Installed Fiber Network
In late 2015 the city hired Elert & Associates to design a city-owned fiber network that was presented to
the City Council at their December 14, 2015 work session. The plan included three scenarios to connect
August 1, 2016
the city’s facilities and water towers – a total of 21 locations. The City Council directed staff to focus on
Scenario 3, which was the most cost effective, and eliminated the connections to the water towers, only
connecting the city’s 12 facilities. This scenario also included partnering with ISD194 to use their existing
fiber along Ipava Avenue and other locations throughout the city and partnering with Dakota County to
provide the materials needed for the city to install the network. The cost to construct the network and
connect the city’s facilities would be approximately $885,645; approximately a 21 year payback as
compared to the current annual cost of the Charter lease.
Renew Fiber Lease with Charter
At the request of the city, Charter submitted a one year lease agreement for service to the Police
Department and a three year lease agreement for service to the other 11 city facilities.
Connection to the Police Department:
Earlier this year the city extended fiber from City Hall to the new Holyoke Avenue water tower to provide
security and monitoring services at the tower. In addition, empty conduit is being installed as part of the
Dodd Boulevard project from the Holyoke Avenue water tower, along 190th Street to Dodd Boulevard and
then north along Dodd Boulevard to the Police Department. In 2017 the city is budgeting to install fiber
in the conduit to create a direct connection between the network server at City Hall and the network
server at the Police Station. This connection will significantly increase the capacity between the two
server locations improving data transmission speed and creating a more stable connection for
downloading, saving and backing-up police squad dash camera videos and city wide data files. It will also
improve the overall function and stability of the Getac computers within the squads and allow a duplicate
location for file storage. With the installation of city owned fiber to the Police Department in 2017, a one
year lease agreement with Charter for their service is all that is needed. The annual cost for the one year
lease to connect the Police Department is $5,856.
Connection to the remaining 11 facilities:
The City has been working with Dakota County, the Dakota County Community Development Agency
(CDA) and the ten other large cities in the county on a comprehensive broadband project over the past
two years. The goal of the group was to investigate the potential development of an overall broadband
fiber network consortium that would serve the needs of the government agencies within the County. The
City Council earlier this year entered into a JPA to participate in the development of a systems plan. The
systems plan will provide a full inventory of the fiber assets currently in place, identify future fiber needs
and provide a framework for installing the needed infrastructure for completing a county-wide fiber
network. The development of a consortium among Dakota County cities and completion of a fiber
network connecting government facilities is anticipated to be completed over the next few years.
Therefore, in anticipation of a joint City/County fiber network being completed within the next three
years connecting the remaining 11 city facilities, staff requested a three year lease agreement with Charter.
The annual cost for the three year lease for the 11 facilities is $64,416 per year.
Primary Issues to Consider
What are the next steps in the process?
Staff recommends signing a one year lease agreement with Charter for service to the Police Department
and a three year lease agreement for service to the other 11 city facilities. In the meantime, the city will
pursue the installation of fiber from the Holyoke Avenue water tower to the Police Department in 2017
and continue to work with Dakota County to develop a fiber network to connect the remaining 11
facilities over the next three years.
Supporting Information
• Charter Fiberlink one year and three year lease agreements
Financial Impact: Budgeted: Y☒ N☐ Source:
Related Documents: (CIP, ERP, etc.):
Envision Lakeville Community Values: Good Value for Public Services
Report Completed by: Allyn G. Kuennen
$70,272 (year one)
$64,416 (years 2-3)
Communications Fund
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*201602234570105*
201602234570105
DATA NETWORKING SERVICE AGREEMENT
This Service Agreement (“Agreement") is executed and effective upon the latest date of the signatures set forth in the signature block
below (“Effective Date”) by and between Charter Fiberlink CCO, LLC, (“Spectrum Business*” or "Charter") with a corporate office at
12405 Powerscourt Drive, St. Louis, Missouri 63131 and City of Lakeville, ("Customer") with offices located at 9237 183rd St,
LAKEVILLE, MN 55044.
Both parties desire to enter into this Agreement in order to set forth the general terms under which Charter is to provide Customer with
Charter’s services (“Service” or “Services”) to Customer site(s), the scope and description to be specified per site below and/or in a
Service order(s) executed by both parties (each instance of site identification and order a “Service Order” or collectively the “Service
Orders”), which shall be incorporated in this Agreement upon execution.This Agreement and each Service Order will be effective
only after both parties have signed each document.
*Spectrum Business is the commercial brand of Charter Communications, Inc.
SERVICE ORDER
Under the Data Networking Service Agreement
CUSTOMER INFORMATION:
Account Name: City of Lakeville
Invoicing Address: 20195 Holyoke Ave, Lakeville, MN 55044 _______________________________________________________
Invoicing Special Instructions: _______________________________________________________________________________
SITE-SPECIFIC INFORMATION:
☐New ☐Renew ☑Change: Order Type: Mid Contract: Upgrade
Service Location (Address): 9237 183rd St, LAKEVILLE, MN 55044
Service Location Name (for purposes of identification): Police Station ____________________________________________________
Service Location Special Instructions: ________________________________________________________________________
_______________________________________________________________________________________________________
_______________________________________________________________________________________________________
☑Non-Hospitality or Non-Video
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Customer Contact Information.To facilitate communication the following information is provided as a convenience and may be
updated at any time without affecting the enforceability of the terms and conditions herein:
Billing Contact Site Contact Technical Contact
Name
Phone
Cell
Email
Address
M O N T H L Y S E R V I C E F E E S :
Data Services:
Spectrum Business Bundle: No Bundle *
Base Service Network Miles: Class of Service: Standard CoS
MEF Service Types (if applicable): EPLAN $488.00
Speed:100 Mbps (Down/Up)
CPE:________
* If Customer has selected the Spectrum Business Special Offers, the Section 3(i) of the Commercial Terms of Service (for Spectrum Business
Bundle) shall apply.
O N E - T I M E C H A R G E S :
O N E - T I M E C H A R G E S $0.00
2.TOTAL FEES.
Total Monthly Service Fees of $488.00 are due upon receipt of the monthly invoice.
3.SERVICE PERIOD.The initial Service Period of this Service Order shall begin on the date installation is completed and shall
continue for a period of 12 months. Upon expiration of the initial term, this Service Order shall automatically renew for successive
one-month terms and Charter may then apply Charter’s then-current Monthly Service Fees unless either party terminates this
Service Order by giving thirty (30) days prior written notice to the other party before the expiration of the current term.
4.EPLAN SERVICES.Applicable only to EPLAN Data Transport Service.Customer acknowledges that EPLAN Services consist of
multiple end points connecting your designated locations to create a shared-data network. As new service locations are added to
your EPLAN Services, the Network Miles will increase. The performance parameter metric Delay is impacted by the total Network
Miles. Therefore, the applicable Delay metric is based upon the then-total Network Miles of the total of EPLAN Services provided
by Charter to Customer. Customer acknowledges that the applicable Delay metric will be based upon the then-current total
Network Miles.
* Your current Mileage Band is shown as Total EPLAN Network Miles in the above Monthly Service Fees table.
5.SERVICE LEVELS AND MAINTENANCE. See Attachment 1 to this Service Order.
6.NO UNTRUE STATEMENTS. Customer further represents and warrants to Charter that neither this Service Order, nor any other
information, including without limitation, any schedules or drawings furnished to Charter contains any untrue or incorrect statement
of material fact or omits or fails to state a material fact.
7.CONFIDENTIALITY.To the extent allowable by law, both parties agree to keep confidential and not to disclose directly or
indirectly to any third party, the terms of this Service Order or any other related Service Orders, except as may be required by law.
If any unauthorized disclosure is made by either party and/or its agent or representative,both parties shall be entitled to, among
other damages arising from such unauthorized disclosure, injunctive relief and shall have the option of terminating this Service
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Order, other related Service Orders and/or the Service Agreement.Both parties agree to comply with the Minnesota
Government Data Practices Act as applicable to confidential information.
8.FACSIMILE. A copy sent via fax machine or scanned and e-mailed of a duly executed Agreement and Service Order signed by
both authorized parties shall be considered evidence of a valid order, and Charter may rely on such copy of the Agreement and
Service Order as if it were the original.
NOW THEREFORE, Charter and Customer agree to the terms and conditions included within this Service Agreement, including the
Commercial Terms of Service which follow, and hereby execute this Service Agreement by their duly authorized representatives.
Charter Fiberlink CCO, LLC City of Lakeville
By: Charter Communications, Inc., its Manager
Signature: ____________________________________________ Signature: _________________________________________
Printed Name: _________________________________________ Printed Name:______________________________________
Title: ________________________________________________ Title: _____________________________________________
Date: ________________________________________________ Date: _____________________________________________
Spectrum Business Account Executive:
Name: Pam Theisen
Telephone: (320) 229-7337
Fax: 866.915.5219 or 866.915.5220
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COMMERCIAL TERMS OF SERVICE
1. AGREEMENT TERM. This Agreement shall terminate
upon the lawful termination of the final existing Service
Order entered into under this Agreement.
2. SERVICE.Charter shall provide the Services during the
Service Period to Customer at the site(s) identified in the
Service Order(s). “Service Period” is the time period
starting on the date the Services are functional in all
material respects and available for use (the “Turn-up
Date”), and continuing for the number of months specified
in the Service Order(s).
3. STANDARD PAYMENT TERMS. Customer shall pay
fees and charges for the Services in the amount specified
on the Service Order in accordance with this Agreement.
A one-time charge (”OTC”) is a nonrecurring fee for
construction, Service installation charge(s), repair,
replacement, or any other nonrecurring costs or charges.
“Equipment” means the components (e.g., any gateway or
edge electronic device, node, router, switch,
communications lines/cables,etc.) that make up the
Network. “Network” means all of the physical elements
necessary to provide the Services.
(a) Charges. Customer shall pay all associated charges with
the Service(s), as set forth or referenced in the applicable
Service Order(s) or invoiced by Charter. These charges
may include, but are not limited to a monthly service fee
(“MSF”), nonrecurring fees for construction, installation,
repair, replacement or other one-time charges (“OTC”),
usage charges such as, pay-per-view charges, and
applicable federal, state, and local taxes, fees, surcharges
and recoupments (however designated), MSFs shall be
subject to increases attributable to programming, license,
copyright, retransmission and/or other similar costs
imposed upon Charter, Charter shall provide not less than
thirty (30) days prior notice to Customer of any MSF
change.
(b) Taxes, Surcharges, and Fees. Customer shall pay any
sales, use, property, excise or other taxes, franchise fees,
and governmental charges (excluding income taxes)
arising under this Agreement, in addition to any
surcharges that may be imposed as may be permitted
under and consistent with applicable law. A copy of
Customer’s tax exemption document, if applicable, must
be provided to Charter to certify tax-exempt status. Tax-
exempt status shall not relieve Customer of its obligation
to pay any applicable franchise fees. Charter reserves the
right from time to time to change the surcharges for
Services under this Agreement to reflect the charges or
payment obligations imposed on Charter which Charter is
permitted or required under applicable law to pass through
to Customer (e.g.,universal service fund (“USF”) charges,
franchise fees etc.).
(c) Change Requests. Any charges associated with Service
and Equipment installations, changes, or additions
requested by Customer subsequent to executing a Service
Order for the applicable site are the sole financial
responsibility of Customer. Charter shall notify Customer,
in writing, of any additional OTCs and/or adjustments to
MSFs associated with or applicable to such Customer
change requests prior to making any such additions or
modifications. Customer’s failure to accept such additional
charges within three days of receiving such notice shall be
deemed a rejection by Customer, and Charter shall not be
liable to perform any work giving rise to such charges. For
accepted charges, Customer shall be assessed such
additional OTCs and/or adjustments of the MSFs either (i)
in advance of implementation of the change request or (ii)
beginning on Customer’s next and/or subsequent
invoice(s).
(d) Site Visits and Repairs. If Customer’s misuse, abuse or
modification of the Services, Equipment or Network results
in a visit to the Customer site for inspection, correction or
repair, Charter may charge Customer a site visit fee as
well as charges for any resulting Equipment or Network
repair or replacement, which may be necessary.
(e) Invoicing Errors. Customer must provide written notice to
Charter of any invoice errors or disputed charges within 30
days of the invoice date on which the errors and/or
disputed charges appear for Customer to receive any
credit that may be due. Customer must have and present
a reasonable basis for disputing any amount charged.
(f) Late Fees. Undisputed amounts not paid within 30 days of
the invoice date shall be past due and subject to a late fee
of not more than 1.5% per month or the maximum amount
permitted by law.
(g) Non-payment. If Services are suspended due to late
payment, Charter may require that Customer pay all past
due charges, a reconnect fee, and one or more MSFs in
advance before reconnecting Services.
(h) Collection Fees. Charter may charge a reasonable
service fee for all returned checks and bank card, credit
card or other charge card charge-backs. Customer shall
be responsible for all expenses, including reasonable
attorney fees and collection costs, incurred by Charter in
collecting any unpaid amounts due under this Agreement.
(i) Bundled Pricing. If Customer has selected a Spectrum
Business Bundle (“SBB”) specifically, the following
conditions shall apply:
i. In consideration for Customer’s purchase of all Services
in the SBB and only with respect to that period of time
during which Customer continues to purchase such
SBB, Charter shall apply a discount to the Services
ordered under the applicable Service Order(s). Such
discount has been applied to the Services included in
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Charter’s bundled pricing offer and is reflected in the
MSF for such Services.
ii. Upon discontinuation or termination by Customer of any
component of a Service of the applicable SBB, the
pricing for the remaining Services shall revert to
Charter’s a la carte pricing for such Services in effect at
the time. Termination liability applicable to the Services
under this Agreement shall otherwise remain
unchanged.
4. SERVICE LOCATION ACCESS AND INSTALLATION.
(a) Access. Charter will require reasonable access to each
service location listed on a Service Order (“Service
Location”) as necessary for Charter to review, install,
inspect, maintain or repair any Equipment or Materials
necessary to provide the Services. If Customer owns or
controls the Service Location(s), Customer grants Charter
permission to enter the Service Location(s) for the
exercise of such right. If a Service Location is not owned
and/or controlled by Customer, Customer will obtain, with
Charter's assistance, appropriate right of access. If such
right of access for Charter is not obtained by either party,
then Charter's obligations with respect to such Service
Location shall be considered null and void.
(b) Installation Review; Subsequent Interference. Charter may
perform an installation review of each Service Location
prior to installation of the Services. Upon request,
Customer shall provide Charter with accurate site and/or
physical network diagrams or maps of a Service Location,
including electrical and other utility service maps, prior to
the installation review. If Charter determines that safe
installation and/or activation of one or more of the
Services will have negative consequences to Charter’s
personnel or Network or cause technical difficulties to
Charter or its customers, Charter may terminate the
Service Order effective upon written notice to Customer or
may require Customer to correct the situation before
proceeding with installation or activation of the Services.
If during a Service Period, or any renewal thereof, (i)
proper operation of Equipment or provision of a Service is
no longer unhindered or possible as a result of
interference or obstruction due to any cause other than
Charter or (ii) such interference/obstruction or its cause
may endanger, hinder, harm or injure Charter’s personnel
or Network and/or cause technical difficulties to Charter or
its customers, Charter may terminate the affected Service
Order(s) without liability upon written notice to Customer.
(c) Site Preparation. Customer shall be responsible for
necessary preparations at its location(s) for delivery and
installation of Equipment and the installation and ongoing
provision of Services, including the relocation of
Customer’s equipment, furniture and furnishings as
necessary to access the Equipment or Services. Upon
request, Customer shall provide any available electrical,
utility service, and/or general physical network diagrams or
maps prior to installation or maintenance work to be
undertaken by Charter.
(d) Installation. Charter will schedule one or more installation
visits with Customer. Customer’s authorized
representative must be present during installation. If
during the course of installation Charter determines
additional work is necessary to enable Charter to deliver
the Services to the Service Location, Charter will notify
Customer of any additional OTCs. If Customer does not
agree to pay such OTCs by executing a revised Service
Order within five business days of receiving the same,
Customer and Charter shall each have the right to
terminate the applicable Service Order. Customer shall
connect Customer’s computer or network to applicable
Charter-provided Equipment to enable access to the
Services. Charter shall be responsible for reasonable
restoration efforts necessary to address any displacement
resulting from excavation.
(e) Ongoing Visits. Charter will need periodic access for
inspection, operation and maintenance of the Network.
Except in emergency situations, Charter will obtain
approval from Customer (not to be unreasonably withheld
or delayed) before entering Customer Premises. At
Charter’s request, Customer, or a representative
designated by Customer, will accompany Charter’s
employees or agents into any unoccupied unit for any
purpose relating to the Equipment.
5. EQUIPMENT AND MATERIALS.
(a) Responsibilities and Safeguards. Except as otherwise
provided in this Agreement or any Service Order(s),
neither party shall be responsible for the maintenance or
repair of cable, electronics, structures, Equipment or
materials owned by the other party; provided, however,
that subject to the indemnification limitations set forth in
this Agreement, each party shall be responsible to the
other for any physical damage or harm such party causes
to the other party’s personal or real property through the
damage –causing party’s negligence or willful misconduct.
Customer shall:
i. Safeguard Equipment against others;
ii. Not add other equipment nor move, modify,
disturb, alter, remove, nor otherwise tamper with
any portion of the Equipment;
iii. Not hire nor permit anyone other than personnel
authorized by Charter acting in their official
capacity to perform any work on Equipment; and
iv. Not move nor relocate Equipment to another
location or use it at an address other than the
Service location without the prior written consent
of Charter.
Any unauthorized connection or other tampering with the
Services or Equipment shall be cause for immediate
suspension of Services, termination of this Agreement
and/or legal action, and Charter shall be entitled to recover
damages, including the value of any Services and/or
Equipment obtained in violation of this Agreement in
addition to reasonable collection costs including
reasonable attorney fees. Should any antenna, or signal
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amplification system for use in connection with
communication equipment hereafter be installed on the
Premises which interferes with the Services, Charter shall
not be obligated to distribute a signal to the Premises
better than the highest quality which can be furnished
without additional cost to Charter as a result of such
interference, until such time as the interference is
eliminated.
(b) Customer Security Responsibilities. Customer shall be
responsible for the implementation of reasonable security
measures and procedures with respect to use of and
access to the Service and/or Equipment. Charter may
suspend the Services upon learning of a breach of
security and will attempt to contact Customer in advance,
if practicable.
(c) Ownership. Notwithstanding any other provision
contained in this Agreement to the contrary, all Equipment
and materials installed or provided by Charter are and
shall always remain the property of Charter, shall not
become a fixture to the Premises, and must be returned to
Charter at any time Services are disconnected in the
condition in which they were received subject to ordinary
wear and tear. Customer will not sell, lease, assign nor
encumber any Equipment. Customer shall not obtain or
acquire title to, interest or right (including intellectual
property rights) in the Service or Equipment other than to
the limited extent of use rights expressly granted under
this Agreement.
(d) Equipment Return, Retrieval, Repair and Replacement.
Immediately upon termination of this Agreement and/or
Service Order(s) (“Termination”), at the discretion of
Charter, Customer shall return, or allow Charter to
retrieve, the Equipment supplied by Charter to Customer.
Failure of Customer to return, or allow Charter to retrieve,
Equipment within 10 days after Services are terminated
will result in a charge to Customer’s account equal to the
retail cost of replacement of the unreturned Equipment.
Customer shall pay for the repair or replacement of any
damaged Equipment, except such repairs or replacements
as may be necessary due to normal and ordinary wear
and tear or material/workmanship defects, together with
any costs incurred by Charter in obtaining or attempting to
regain possession of such Equipment, including
reasonable attorney fees.
6.ADMINISTRATIVE WEB SITE.Charter may, at its sole
option, make one or more administrative web sites
available to Customer in connection with Customer’s use
of the Services (each an “Administrative Web Site”).
Charter may furnish Customer with one or more user
identifications and/or passwords for use on the
Administrative Web Site. Customer shall be responsible
for the confidentiality and use of such user identifications
and/or passwords and shall immediately notify Charter 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 Web
Site. Customer shall be solely responsible for all use of the
Administrative Web Site, and Charter shall only be entitled
to rely on all Customer uses of and submission to the
Administrative Web Site as authorized by Customer.
Charter shall not be liable for any loss, cost, expense of
other liability arising out of any Customer use of the
Administrative Web Site, Charter may change or
discontinue the Administrative Web Site, or Customer’s
right to use the Administrative Web Site, at any time.
Additional terms and policies may apply to Customer’s use
of the Administrative Web Site. These terms and policies
will be posted on the site.
7. VIDEO, MUSIC AND CONTENT SERVICE. This Video,
Music and Content Service Section shall only apply if
Video, Music and Content Services are included in a
Service Order under this Agreement; however, continued
use or reception of the Video Services is subject to the
provisions of this Agreement.
(a) Music Rights Fees. Customer is responsible for and must
secure any music rights and/or pay applicable fees
required by the American Society of Composers, Authors
& Publishers (ASCAP), Broadcast Music, Inc. (BMI) and
SESAC, Inc. (SESAC) or their respective successors, and
any other entity, person or governmental authority from
which a license is necessary or appropriate relating to
Customer’s transmission, retransmission, communication,
distribution, performance or other use of the Services.
(b) Premium and Pay-Per-View. Customer may not: (i) exhibit
any premium Services such as HBO or Showtime in any
public or common area; (ii) order or request Pay-Per-View
(PPV) programming for receipt, exhibition or taping in a
commercial establishment; or (iii) exhibit nor assist in the
exhibition of PPV programming in a commercial
establishment unless explicitly authorized to do so by
agreement with an authorized program provider and
subject to Charter’s prior written consent.
(c) HD Formatted Programming. If Customer has selected
High Definition (“HD”) formatted programming, Customer
is responsible for provision, installation and maintenance
of the receiving equipment and/or facilities necessary for
its reception and display. Any failure of Customer to fulfill
the foregoing obligation shall not relieve Customer of its
obligation to pay the applicable MSFs or OTCs for the HD
formatted programming.
(d) Provision of Service. Without notice, Charter may
preempt, rearrange, delete, add, discontinue, modify or
otherwise change any or all of the advertised
programming comprising, packaging of, line-up applicable
to, and/or distribution of its Video Services.
(e) Restrictions. Customer shall not and shall not authorize or
permit any other person to (i) copy, record, dub, duplicate,
alter, make or manufacture any recordings or other
reproductions of the Services (or any part thereof); or (ii)
transmit the Services by any television or radio broadcast
or by any other means or use the Services outside the
Service Location. Customer acknowledges that such
duplication, reproduction or transmission may subject
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Customer to criminal penalties and/or civil liability and
damages under applicable copyright and/or trademark
laws. With respect to the music programming comprising a
portion of the Services, Customer shall not, and shall not
authorize or permit any other person to, do any of the
following unless Customer has obtained a then-current
music license permitting such activity: (i) charge a cover
charge or admission fee to any Service Location(s) at the
time the Services are being performed or are to be
performed; (ii) permit dancing, skating or other similar
forms of entertainment or physical activity in conjunction
with the performance of the Services; or (iii) insert any
commercial announcements into the Services or interrupt
any performance of the Services for the making of any
commercial announcements.
8. INTERNET ACCESS SERVICE.This Internet Access
Service Section shall only apply if Internet Access
Services are included in a Service Order under this
Agreement; however, continued use of the Internet
Service shall be subject to the provisions of this
Agreement.
(a) Customer shall (i) maintain certain minimum equipment
and software to receive the Service (see
www.business.spectrum.com (or the applicable successor
URL) for the current specifications); (ii) ensure that any
person who has access to the Internet Services through
Customer’s computer(s), Service Location, facilities or
account shall comply with the terms of this Agreement, (iii)
be responsible for all charges incurred and all conduct,
whether authorized or unauthorized, caused by use of
Customer’s computers, service locations, facilities or
account using the Internet Services.
(b) Internet Service Speeds. Charter shall use commercially
reasonable efforts to achieve the Internet speed selected
by Customer on the Service Order, however, actual
Internet speeds may vary. Many factors affect speed
including, without limitation, the number of workstations
using a single connection.
(c) Electronic Addresses. All e-mail addresses, e-mail
account names, and IP addresses (“Electronic
Addresses”) provided by Charter are the property of
Charter. Customer may not alter, modify, sell, lease,
assign, encumber or otherwise tamper with the Electronic
Addresses.
(d) Changes of Address. Charter may change addressing
schemes, including e-mail and IP addresses.
(e) No Liability for Risks of Internet Use. The Service,
Charter’s network and the Internet are not secure, and
others may access or monitor traffic.
(f) No Liability for Purchases. Customer shall be solely liable
and responsible for all fees or charges for online services,
products or information. Charter shall have no
responsibility to resolve disputes with other vendors.
(g) Blocking and Filtering. Customer assumes all
responsibility for providing and configuring any “firewall” or
security measures for use with the Service. Except to the
extent set forth in the Supplemental Spectrum Business
Security Service Section, Charter shall not be responsible
in any manner for the effectiveness of these blocking and
filtering technologies. Charter does not warrant that others
will be unable to gain access to Customer’s computer(s)
and/or data even if Customer utilizes blocking and filtering
technologies, nor does Charter warrant that the data or
files will be free from computer viruses or other harmful
components. Charter has no responsibility and assumes
no liability for such acts or occurrences.
(h) Acceptable Use Policy. Customer shall comply with the
terms of Charter’s Acceptable Use Policy (“AUP”) found at
www.business.spectrum.com (or the applicable successor
URL) and that policy is incorporated by reference into this
Agreement. Customer represents and warrants that
Customer has read the AUP and shall be bound by its
terms as they may be amended, revised, replaced,
supplemented or otherwise changed from time-to-time by
Charter with or without notice to Customer. Charter may
suspend Service immediately for any violation of the
Charter AUP.
(i) WiFi Services. WiFi Services include Charter owned
equipment to establish wireless access points to enable
designated users of the Customer’s choice to wirelessly
access the Internet Service. Access of the Internet Service
via WiFi is subject to all of the same terms under this
Agreement.
9. SUPPLEMENTAL SERVICES. The following Subsections
shall only apply in the event the referenced supplemental
service has been selected by and are being delivered to
Customer. The supplemental services (also “Services”)
may be made up of software and hardware components.
Charter shall ensure the supplemental services are
operational and updated from time-to-time based on
manufacturer-sent updates. Except to the limited extent
described in the foregoing sentence, Charter makes no
warranties of any kind (express or implied) regarding the
supplemental services and hereby disclaims any and all
warranties pertaining thereto (including implied warranties
of title, noninfringement, merchantability, and fitness for a
particular purpose). Charter does not have title to and is
not the manufacturer of any software or hardware
components of the supplemental services nor is Charter
the supplier of any components of such software or
hardware. Customer shall return or destroy all software
components provided to Customer upon the termination of
the applicable Service Order, and in the case of the
destruction thereof, shall, upon request, provide Charter
with certification that such components have been
destroyed.IN NO EVENT SHALL CHARTER BE LIABLE
FOR ANY DAMAGES ARISING FROM THE
PERFORMANCE OR NONPERFORMANCE OF ANY
SUPPLEMENTAL SERVICES.
(a) Hosting. This Hosting Service subsection shall only apply
if one of Charter’s Hosting Services (“Hosting”) is included
as part of the Service in a Service Order under this
Agreement. Charter will provide to Customer Hosting
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Service in accordance with the specifications associated
with the plan Customer has selected on the Service Order.
i. Hosting Software. The Hosting Service will
permit access to a variety of resources available
from selected third parties, including developer
tools, communication forums and product
information (collectively, “Hosting Software”). The
Hosting Software, including any updates,
enhancements, new features, and/or the addition
of any new Web properties, may be subject to
and Customer shall comply with applicable
product use rights/end user license agreements
between such third parties and Customer.
Without abrogating or limiting anything set forth in
the Sections: Internet Access Service, this
Section, No Third-Party Support, Customer Use
or Performance, Charter (not the manufacturer)
shall provide technical support for Hosting
Service, but version changes of any such
software compatibility and/or suitability with any
other Customer provided software shall be
Customer’s responsibility. Customer hereby
consents to the disclosure to the provider of Third
Party Software, of Customer’s name and any
other necessary information for the limited
purpose of licensing rights. Customer shall not
use Hosting Service for or in connection with any
high risk use or activity such as aircraft or other
modes of human mass transportation, nuclear, or
chemical facilities, or Class III medical devices
under the Federal Food, Drug, and Cosmetic Act.
COPYING OR REPRODUCTION OF THE
HOSTING SOFTWARE TO ANY OTHER
SERVER OR LOCATION FOR FURTHER
REPRODUCTION OR REDISTRIBUTION IS
EXPRESSLY PROHIBITED, UNLESS
APPROVED IN WRITING BY CHARTER.
ii. Domain Names. Customer shall be solely
responsible for registering for or renewing a
desired domain name. Charter does not
guarantee that Customer will be able to register
or renew a desired domain name.
iii. Specification Limitations. Individual websites
may not at any time exceed the Hosting
specifications identified on the applicable Service
Order. If Customer’s Hosting account exceeds
the applicable specifications or is adversely
impacting Charter’s network or server(s), Charter
may (i) contact Customer to resolve the issues;
or (ii) if Customer has exceeded the then-
applicable specifications in any given month,
upgrade account on the next available billing
cycle to the next service level tier or suspend or
terminate the Hosting Service.
Notwithstanding anything to the contrary, if
Customer’s use of the Hosting Service is causing
an adverse impact on Charter’s network or
servers, Charter may suspend or terminate the
Hosting Service without notice.
iv. Limitation of Charter-provided Services. Certain
services are not provided by Charter as part of
the Hosting Service (e.g., Charter does not
provide nor offer webpage creation,
development, design or content services).
v. Hosting Fees. The applicable Service Order sets
forth the MSFs for the Hosting Service. Customer
is responsible for payment whether or not the
hosting platform is used and whether or not it
functions properly, unless such failure is caused
by Charter.
vi. Content Liability and Use Restrictions. Charter
exercises no control over the content of the
information passing through Customer’s site(s)
and it is Customer’s sole responsibility to ensure
that Customer and Customer’s users use of the
Hosting Service complies at all times with all
applicable laws and regulations and the AUP.
Charter shall have the right to disclose any and
all available information collected from Customer
to law enforcement authorities upon written
request by such authorities. Information that may
be disclosed includes IP addresses, account
history, and files stored on servers used to
provide the Hosting Service. If Customer
engages in any of the following prohibited
activities, Charter shall have the right to suspend
or terminate the Hosting Services and/or this
Agreement:
1. The hosting of unlicensed software.
2. Use of software or files that contain computer
viruses or files that may harm user's computers;
3. Any attempt or actual unauthorized access by
Customer or through Customer’s equipment to
any Charter website or the website of any
Charter customer;
4. The collection or any attempt to collect personally
identifiable information of any person or entity
without his, her or its express written consent.
Customer shall maintain records of any such
written consent throughout the term of this
Agreement and for three years thereafter;
5. Any action or inaction which is harmful or
potentially harmful to the Charter server
structure;
6. Running a banner exchange, free adult thumbnail
gallery post and/or free adult image galleries on
your website; or
7. Inclusion of sites with material, links, or resources
for hacking, phreaking, viruses, or any type of
site that promotes or participates in willful harm to
Internet sites, users or providers.
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vii. Impositions on Customer’s End Users. Customer
is responsible for charging and collecting from its
end users any and all applicable taxes. If
Customer fails to impose and/or collect any tax
from its end users then, as between Charter and
Customer, Customer shall be liable for such
uncollected tax and any interest and penalty
assessed thereon with respect to the uncollected
tax. Customer shall indemnify and hold the
Charter Indemnified Parties (defined below)
harmless for any costs incurred or taxes or fees
paid due to actions taken by the applicable taxing
authority to collect any such tax from Charter due
to Customer’s failure to comply with this Section.
(b) SB Security Service – Desktop and Managed. Charter’s
managed security service, SB Managed Security, and
desktop security service, SB Desktop Security
(collectively, “SB Security Service”) are each made up of
software and hardware components. Charter shall ensure
that the selected SB Security Service(s) is/are operational
and updated from time-to-time based on manufacturer-
sent updates. Charter is not the manufacturer of any
software or hardware components of either Spectrum
Business Security Service nor is Charter the supplier of
any components of such software or hardware.
(c) SB Back-Up Service. For Charter’s data storage service
(“SB Back-up”), Customer shall be assessed applicable
OTCs and MSFs which shall be based upon Customer’s
selection of version retention quantity and storage tier
(e.g., five gigabits). The version retention quantity selected
specifies the maximum number of separate versions of a
document that will be retained (running in sequential order
based on the last version created). For example, if
Customer has selected “seven” as the version retention
quantity, Customer will be able to access the last seven
versions of a particular document. In addition to OTCs and
MSFs, monthly storage overage fees shall apply each
month Customer exceeds the respective subscribed
storage level. Additional OTCs and MSFs also apply to
Customer-requested media and/or professional services.
Charter is not the manufacturer or supplier of any SB
Back-Up software components. Customer shall be
responsible for updating SB Back-Up from time-to-time
based on updates provided by the software manufacturer,
and any failure of Customer to perform such updates shall
relieve Charter from any responsibility to ensure that SB
Back-Up remains operational.
If the functionality of SB Back-Up cannot be maintained by
Charter, Charter shall have the right to discontinue
providing the Service immediately and Charter shall credit
Customer’s account for any pre-paid MSFs attributable to
the Service, except where such lack of functionality is
caused by Customer or any end user gaining access to
the Service through Customer’s facilities, equipment, or
point of access. Customer shall not be relieved of its
responsibility to continue to pay for SB Back-Up in the
event SB Back-Up does not function properly as a result of
Customer’s failure to install and configure the software,
activate the service or install manufacturer-provided
updates. CUSTOMER UNDERSTANDS AND
ACKNOWLEDGES THAT (1) IT IS CUSTOMER’S SOLE
RESPONSIBILITY TO CREATE AND RETAIN THE SB
BACK-UP PASSWORD THAT IS NECESSARY FOR
ACCESS TO ANY DATA STORED VIA THE SB BACK-
UP SERVICE AND (2) CHARTER HAS NO ACCESS TO
AND DOES NOT KNOW NOR KEEP ANY RECORD OF
THE PASSWORD CREATED BY CUSTOMER. FAILURE
BY CUSTOMER TO RETAIN CUSTOMER’S SB BACK-
UP PASSWORD SHALL RESULT IN COMPLETE LOSS
OF ACCESSIBILITY TO DATA STORED VIA SB BACK-
UP.
10. DATA NETWORKING (aka “DATA TRANSPORT”).
Charter will provide Data Networking Services for
Customer locations connected over coaxial and/or fiber-
optic cable. Connectivity is established between two or
more customer end-points under a unique customer
topology. Charter will install the coaxial or fiber-optic cable
into each Customer site as listed in the Service Order(s).
Charter will also supply an edge device at each site that
will be capable of receiving the Service as specified in the
Service Order(s).
i. Charter will terminate fiber-optic cable on a patch panel
or provide a coaxial outlet at an agreed upon minimum
point of penetration (MPOP) up to 50 feet within each
facility (unless otherwise specified in the Service Order).
If the hand-off point of the Data Networking Service at
Customer’s premise exceeds this distance, Customer
may be responsible for any additional costs for internal
wiring.
ii. Customer will make available to Charter a building
ground connection at each location that meets current
electrical codes for the placement of a fiber-optic patch
panel and/or coaxial outlet. Unless otherwise specified
in the applicable Service Order, it is recommended that
Customer provide a separate 20 Amp 110V AC circuit
for the edge electronics, which is powered by a UPS
system. Customer-supplied routing will be necessary for
communication between each Service Location.
iii. If Customer has selected “Monitoring” for a Service,
Charter shall monitor the Services 24 hours a day,
seven days a week. Customer shall contact the
Enterprise and Strategic Marketing Network Operations
Center at 1-866-603-3199 or subsequent number to
report Data Networking Service problems. Additional
fees may apply for Monitoring over coaxial cable.
iv. In the event Customer is receiving Data Networking
Services: Optical Ethernet EP-LAN or EVP-LAN,
Charter recommends that the Customer place a router
at each ingress/egress point (on Customer’s side of the
demarcation), which will reduce the number of customer
media access control (“MAC”) addresses which must be
learned by Charter’s network (aka ‘masking’) in order to
be conveyed. In the event Customer chooses not to
place a router on its side of the demarcation, Charter
will place limitations on the number of MAC addresses
that will be learned by Charter’s network and, in
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circumstances where the customer exceeds these
limitations, some Customer network traffic will be denied
from entering Charter’s network. Additional monthly
fees will be applied if the number of MAC addresses on
a given EVC (Ethernet Virtual Connection) exceeds 500,
and Charter will not allow more than 1000 MAC
addresses onto the network.
11. NO THIRD-PARTY HARDWARE OR SOFTWARE
SUPPORT. Customer is responsible for the installation,
repair and use of Customer-supplied third-party hardware
and/or software. For purposes of this Agreement the
Hosting Software shall be considered third party software.
Charter does not support third-party hardware or software
supplied by Customer. Any questions concerning third-
party hardware or software should be directed to the
provider of that product. Charter assumes no liability or
responsibility for the installation, maintenance,
compatibility or performance of third party software, any
Customer-supplied hardware or software with the
Services. If such third-party equipment or software impairs
the Services, Customer shall remain liable for payments
as agreed (if any) without recourse for credit or prorated
refund for the period of impairment. Charter has no
responsibility to resolve the difficulties caused by such
third-party equipment or software. If, at Customer’s
request, Charter should attempt to resolve difficulties
caused by such third-party equipment or software, such
efforts shall be performed at Charter’s discretion and at
then-current commercial rates and terms.
12. CUSTOMER USE.Customer shall not re-sell or re-
distribute access to the Service(s) or system capacity, or
any part thereof, in any manner without the express prior
written consent of Charter. Customer shall not use or
permit third parties to use the Service(s), including the
Equipment and software provided by Charter, for any
illegal purpose, or to achieve unauthorized access to any
computer systems, software, data, or other copyright or
patent protected material. Customer shall not interfere with
other customers’ use of the Equipment or Services or
disrupt the Charter Network, backbone, nodes or other
Services. Violation of any part of this Section is grounds
for immediate Termination of this Agreement and/or all
Service Orders in addition to any other rights or remedies
Charter may have.
13. PERFORMANCE.Charter will use commercially
reasonable efforts in keeping with normal industry
standards to ensure that the Service is available to
Customer 24 hours per day, seven days per week. It is
possible, however, that there will be interruptions of
Service. The Service may be unavailable from time-to-time
either for scheduled or unscheduled maintenance,
technical difficulties, or for other reasons beyond Charter’s
reasonable control. Temporary service
interruptions/outages for such reasons, as well as service
interruptions/outages caused by Customer, its agents and
employees, or by a Force Majeure Event, shall not
constitute a failure by Charter to perform its obligations
under this Agreement, and Customer will not hold Charter
at fault for loss of Customer revenue or lost employee
productivity due to Service outages.
14. DEFAULT; SUSPENSION OF SERVICE;
TERMINATION.No express or implied waiver by Charter
of any event of noncompliance shall in any way be a
waiver of any further subsequent event of noncompliance.
Nothing herein, including Termination, shall relieve
Customer of its obligation to pay Charter all amounts due.
(a) Default by Customer. Customer shall be in default under
this Agreement if Customer does one or more of the
following things (each individually to be considered a
separate event of default) and Customer fails to correct
each such noncompliance within 30 days of receipt of
written notice (“Default”):
i. Customer is more than 30 days past due with
respect to any payment required hereunder;
ii. Customer otherwise has failed to comply with the
terms of this Agreement or any other Service
Order(s) incorporated herein.
(b) Termination for Convenience. Notwithstanding any other
term or provision in this Agreement, Customer shall have
the right to terminate a Service Order, or this Agreement in
whole or part, at any time upon thirty (30) days prior
written notice to Charter, and subject to payment of all
outstanding amounts due, any applicable Termination
Charges, and the return of any Charter Equipment.
(c) Charter’s Right to Terminate and Termination Charge. If
Customer is in Default, Charter shall have the right, at its
option, without prior notice, and in addition to any other
rights of Charter expressly set forth in this Agreement and
any other remedies it may have under applicable law to:
i. Immediately suspend Services to Customer until such
time as the underlying noncompliance has been
corrected without affecting Customer’s on-going
obligation to pay Charter any amounts due under this
Agreement (e.g., the MSFs) as if such suspension of
Services had not taken place;
ii. Terminate the Services, this Agreement or the
applicable Service Order(s).
If Termination is due to Customer’ Default or is
elected/done by Customer for convenience, Customer
must pay Charter a Termination charge (a “Termination
Charge”), which the parties recognize as liquidated
damages. This Termination Charge shall be equal to 50%
of the unpaid balance of the MSFs that would have been
due throughout the applicable Service Period plus 100%
of (1) the outstanding balance of any and all OTCs plus (2)
any and all previously waived OTCs.
(d) Default by Charter. Charter shall be in default under this
Agreement if Charter fails to comply with the terms of this
Agreement and/or any or all of the applicable Service
Order(s), and Charter fails to remedy each such
noncompliance or occurrence within 30 days of receipt of
written notice from Customer describing in reasonable
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detail the nature, scope and extent of the default or
noncompliance (“Charter Default”).
(e) Customer’s Right to Terminate and Termination Charge.
i. In the event Customer wishes to terminate a Service
without cause, Customer shall be liable for the same
Termination Charges as described above.
ii. Customer shall have the right, at its option and in
addition to any other remedies it may have, to
terminate any applicable Service Order(s), if the
underlying event of Charter Default by Charter is
limited to Services provided under the applicable
Service Order(s) or this Agreement, if such Charter
Default is not so limited,.
iii. If Termination is due to a Charter Default, Charter
shall reimburse Customer for any pre-paid, unused
MSFs attributable to such terminated Service
Order(s). In addition, if Termination is due to Charter
Default within one year of the applicable Turn-Up
Date, Charter shall pay a Termination Charge, which
the parties recognize as liquidated damages, equal to
a portion of any OTC that has already been paid by
Customer to Charter relative to Service at the sites
covered by the terminated Service Order. This
Termination Charge shall be equal to the product of a)
the number of months (including partial months)
remaining in the initial 12 months of the initial Service
Period at the time of Termination and b) a ratio in
which the numerator is the total of OTCs paid to date
and the denominator is 12.
15. LIMITATION OF LIABILITY. PLEASE READ THIS
SECTION CAREFULLY, IT CONTAINS DISCLAIMERS
OF WARRANTIES AND LIMITATIONS OF LIABILITY.
(a) Limited Warranty. At all times during the Service Period,
Charter warrants that it will use commercially reasonable
efforts in keeping with industry standards to cause the
Services to be available to Customer. Charter does not
warrant that Services will be error free.
THE FOREGOING LIMITED WARRANTY IS EXCLUSIVE
AND IN LIEU OF ALL EXPRESS AND IMPLIED
WARRANTIES WHATSOEVER.
EXCEPT AS OTHERWISE STATED IN THIS
AGREEMENT, CHARTER MAKES NO WARRANTIES,
EXPRESS OR IMPLIED, AS TO ANY SERVICE AND
SPECIFICALLY DISCLAIMS ANY AND ALL IMPLIED
WARRANTIES, INCLUDING ANY IMPLIED
WARRANTIES OF MERCHANTABILITY, FITNESS FOR
A PARTICULAR PURPOSE, TITLE OR NON-
INFRINGEMENT OF THIRD PARTY RIGHTS.
WITHOUT LIMITING ANY EXPRESS PROVISIONS OF
THIS AGREEMENT, NEITHER PARTY SHALL BE
LIABLE TO THE OTHER FOR ANY INDIRECT,
CONSEQUENTIAL, EXEMPLARY, SPECIAL,
INCIDENTAL RELIANCE OR PUNITIVE DAMAGES
(INCLUDING LOST BUSINESS, REVENUE, PROFITS,
OR GOODWILL) ARISING IN CONNECTION WITH THIS
AGREEMENT OR THE PROVISION OF SERVICES,
INCLUDING ANY SERVICE IMPLEMENTATION
DELAYS AND/OR FAILURES, UNDER ANY THEORY
OF TORT, CONTRACT, WARRANTY, STRICT
LIABILITY OR NEGLIGENCE, EVEN IF THE PARTY
HAS BEEN ADVISED, KNEW OR SHOULD HAVE
KNOWN OF THE POSSIBILITY OF SUCH DAMAGES.
Any warranty claim by Customer must be made within 30
days after the applicable Services have been performed.
Charter’s sole obligation and Customer’s sole remedy,
with respect to any breach of the limited warranty set forth
herein, shall be a prorated refund of the fees paid by
Customer based on the period of time when the Services
are out of compliance with this limited warranty provision.
(b) Content. Any content that Customer may access or
transmit through any Service is provided by independent
content providers, over which Charter does not exercise
and disclaims any control. Charter neither previews
content nor exercises editorial control; does not endorse
any opinions or information accessed through any Service;
and assumes no responsibility for content. Charter
specifically disclaims any responsibility for the accuracy or
quality of the information obtained using the Service. Such
content or programs may include programs or content of
an infringing, abusive, profane or sexually offensive
nature. Customer and its authorized users accessing other
parties’ content through Customer’s facilities do so at
Customer’s own risk, and Charter assumes no liability
whatsoever for any claims, losses, actions, damages, suits
or proceedings arising out of or otherwise relating to such
content.
(c) Damage, Loss or Destruction of Software Files and/or
Data. Customer uses the Services and Equipment
supplied by Charter at its sole risk. Charter does not
manufacture the Equipment, and the Services and
Equipment are provided on an “as is basis” without
warranties of any kind. Charter assumes no responsibility
whatsoever for any damage to or loss or destruction of
any of Customer’s hardware, software, files, data or
peripherals which may result from Customer’s use of any
Service. Charter does not warrant that data or files sent by
or to Customer will be transmitted in uncorrupted form or
within a reasonable period of time.
(d) Unauthorized Access. If Customer chooses to run or offer
access to applications from its equipment that permits
others to gain access through the Network, Customer
must take appropriate security measures. Failing to do so
may cause immediate termination of Customer’s Service
by Charter without liability for Charter. Charter is not
responsible for and assumes no liability for any damages
resulting from the use of such applications, and Customer
shall hold harmless and indemnify the Charter Indemnified
Parties from and against any claims, losses, or damages
arising from such use. Charter is not responsible and
assumes no liability for losses, claims, damages,
expenses, liability, or costs resulting from others
accessing Customer’s computers, its internal network
and/or the Network through Customer’s equipment.
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(e) Force Majeure Event. Neither Party shall be liable to the
other for any delay, inconvenience, loss, liability or
damage resulting from any failure or interruption of
Services, directly or indirectly caused by circumstances
beyond such party’s control, including but not limited to
denial of use of poles or other facilities of a utility
company, labor disputes, acts of war or terrorism, criminal,
illegal or unlawful acts, natural causes, mechanical or
power failures, or any order, law or ordinance in any way
restricting the operation of the Services. Changes in
economic, business or competitive condition shall not be
considered a Force Majeure Event.
16. The Customer understands and agrees that Charter
disclaims and shall not be responsible for any liability
to the full extent that such arises from Customer’s
misrepresentation with regard to or noncompliance
with the terms of this Agreement and/or any Service
Order, Customer’s failure to comply with applicable
law, and/or Customer’s negligence or willful
misconduct.
17. TITLE.Title to the Equipment shall remain with Charter
during the applicable Service Period. Customer shall keep
that portion of the Equipment located on Customer
premises free and clear of all liens, encumbrances and
security interests. Upon termination of Service or
expiration of a Service Order’s Service Period for a
specific site, Charter shall have the right to remove all
Equipment components and/or leave any of such
components in place, assigning title and interest in such
components to Customer, it being understood that no
further notice or action is required to accomplish the
assignment contemplated hereunder. Charter shall have
the right to remove the Equipment and all components
within 60 days after such termination.
18. COMPLIANCE WITH LAWS.Customer shall not use or
permit third parties to use the Services in any manner that
violates applicable law or causes Charter to violate
applicable law. Both parties shall comply with all
applicable laws and regulations when carrying out their
respective duties hereunder.
19. PRIVACY.Charter treats private communications on or
through its Network or using any Service as confidential
and does not access, use or disclose the contents of
private communications, except in limited circumstances
and as permitted by law. Charter also maintains a Privacy
Policy with respect to the Services in order to protect the
privacy of its customers. The Privacy Policy may be found
on Charter’s website at www.business.spectrum.com. The
Privacy Policy may be updated or modified from time-to-
time by Charter, with or without notice to Customer.
20. GENERAL CUSTOMER REPRESENTATIONS AND
OBLIGATIONS.Customer represents to Charter (a) that
Customer has the authority to execute, deliver and carry
out the terms of this Agreement and associated Service
Orders and (b) that any person who accesses any
Services through Customer’s equipment or through the
Network facilities in Customer’s Premises will be an
authorized user, will use the Service, Network and/or
Network facilities in an appropriate and legal manner, and
will be subject to the terms of this Agreement. Customer is
responsible for ensuring its users of the Service comply
with the terms of this Agreement. Customer shall be
responsible for all access to and use of the Service by
means of Customer’s equipment, whether or not Customer
has knowledge of or authorizes such access or use.
Customer shall be solely liable and responsible for all
charges incurred and all conduct through either authorized
or unauthorized use of the Service, until informs Charter of
any breach of security.
21. NOTICES. Any notices to be given under this Agreement
shall be validly given or served only if in writing and sent
by nationally recognized overnight delivery service or
certified mail, return receipt requested, to the following
addresses:
If to Charter:
Charter Communications
ATTN: Commercial Contracts Management
Dept: Corp. - Legal Ops
12405 Powerscourt Drive
St. Louis, MO 63131
Notices to Customer shall be sent to the Customer billing
address.
Each party may change its respective address (es) for
legal notice by providing notice to the other party.
22. MISCELLANEOUS.
(a) Entire Agreement; Signatures. This Agreement and any
related, executed Service Order(s) constitute the entire
Agreement with respect to the Services, Network and
Equipment. This Agreement supersedes all prior
understandings, promises and undertakings, if any, made
orally or in writing by or on behalf of the parties with
respect to the subject matter of this Agreement. This
Agreement may be executed in one or more counterparts,
each of which is an original, but together constituting one
and the same instrument. Execution of a facsimile copy
will have the same force and effect as execution of an
original, and a facsimile signature will be deemed an
original and valid signature.
(b) No Amendments, Supplements or Changes. Except for
pricing terms as set forth in this Agreement, this
Agreement and the associated executed Service Order(s)
may not be amended, supplemented or changed without
both parties’ prior written consent.
(c) No Assignment or Transfer. The parties may not assign or
transfer (directly or indirectly by any means, by operation
of law or otherwise) this Agreement and the associated
Service Order(s), or their rights or obligations hereunder to
any other entity without first obtaining written consent from
the other party, which consent shall not be unreasonably
withheld; provided, however, that without Customer’s
consent, Charter may assign this Agreement and the
associated executed Service Order(s) to affiliates
controlling, controlled by or under common control with
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Charter, or to its successor-in-interest if Charter sells
some or all of the underlying communications system.
(d) Severability. If any term, covenant, condition or portion of
this Agreement or any related, executed Service Order(s)
shall, to any extent, be invalid or unenforceable, the
remainder of this Agreement or any related, executed
Service Order(s) shall not be affected and each remaining
term, covenant or condition shall be valid and enforceable
to the fullest extent permitted by law.
(e) Governing Law. The law of the state in which the Services
are provided (excluding its conflicts of law provisions) shall
govern the construction, interpretation, and performance
of this Agreement, except to the extent superseded by
federal law. IN ANY AND ALL CONTROVERSIES OR
CLAIMS ARISING OUT OF OR RELATING TO THIS
AGREEMENT, ITS NEGOTIATION, ENFORCEABILITY
OR VALIDITY, OR THE PERFORMANCE OR BREACH
THEREOF OR THE RELATIONSHIPS ESTABLISHED
HEREUNDER, CUSTOMER AND CHARTER EACH
HEREBY WAIVES ITS RIGHT, IF ANY, TO TRIAL BY
JURY.
(f) Both parties had the opportunity to review and participate
in the negotiation of the terms of this Agreement and the
Service Order(s) and, accordingly, no court construing this
Agreement and any Service Order(s) shall construe it
more stringently against one party than against the other.
(g) No Third Party Beneficiaries. The terms of this Agreement
and the parties’ respective performance of obligations as
described are not intended to benefit any person or entity
not a party to this Agreement, and the consideration
provided by each party hereunder only runs to the
respective parties hereto, and that no person or entity not
a party to this Agreement shall have any rights hereunder
nor the right to require performance of obligations by
either of the parties hereto.
(h) Waiver. Except as otherwise provided herein, the failure
of Charter to enforce any provision of this Agreement shall
not constitute or be construed as a waiver of such
provision or of the right to enforce such provision.
.
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*201602234570112*
201602234570112
DATA NETWORKING SERVICE AGREEMENT
This Service Agreement (“Agreement") is executed and effective upon the latest date of the signatures set forth in the signature block
below (“Effective Date”) by and between Charter Fiberlink CCO, LLC, (“Spectrum Business*” or "Charter") with a corporate office at
12405 Powerscourt Drive, St. Louis, Missouri 63131 and City of Lakeville, ("Customer") with offices located at 20195 Holyoke Ave,
Lakeville, MN 55044-8339.
Both parties desire to enter into this Agreement in order to set forth the general terms under which Charter is to provide Customer with
Charter’s services (“Service” or “Services”) to Customer site(s), the scope and description to be specified per site below and/or in a
Service order(s) executed by both parties (each instance of site identification and order a “Service Order” or collectively the “Service
Orders”), which shall be incorporated in this Agreement upon execution.This Agreement and each Service Order will be effective
only after both parties have signed each document.
*Spectrum Business is the commercial brand of Charter Communications, Inc.
SERVICE ORDER
Under the Data Networking Service Agreement
CUSTOMER INFORMATION:
Account Name: City of Lakeville
Invoicing Address: 20195 Holyoke Ave, Lakeville, MN 55044_ ______________________________________________________
Invoicing Special Instructions: _______________________________________________________________________________
SITE-SPECIFIC INFORMATION:
☐New ☑Renew ☐Change: Order Type: Renewal: No change
Service Location (Address): 20195 Holyoke Ave, Lakeville, MN 55044-8339
Service Location Name (for purposes of identification): City Hall ________________________________________________________
Service Location Special Instructions: ________________________________________________________________________
_______________________________________________________________________________________________________
_______________________________________________________________________________________________________
☑Non-Hospitality or Non-Video
SITE-SPECIFIC INFORMATION:
☐New ☑Renew ☐Change: Order Type: Renewal: No change
Service Location (Address): 18400 IPAVA AVE, LAKEVILLE, MN 55044
Service Location Name (for purposes of identification): Water Treatment Facility_____________________________________________
Service Location Special Instructions: ________________________________________________________________________
_______________________________________________________________________________________________________
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SITE-SPECIFIC INFORMATION:
☐New ☑Renew ☐Change: Order Type: Renewal: No change
Service Location (Address):16720 DODD BLVD, LAKEVILLE, MN 55044
Service Location Name (for purposes of identification): Fire Station 2 ____________________________________________________
Service Location Special Instructions: ________________________________________________________________________
_______________________________________________________________________________________________________
SITE-SPECIFIC INFORMATION:
☐New ☑Renew ☐Change: Order Type: Renewal: No change
Service Location (Address): 17490 KENRICK AVE, LAKEVILLE, MN 55044
Service Location Name (for purposes of identification): Fire Station 3 ____________________________________________________
Service Location Special Instructions: ________________________________________________________________________
_________________________________________________
SITE-SPECIFIC INFORMATION:
☐New ☑Renew ☐Change: Order Type: Renewal: No change
Service Location (Address): 9465 185TH ST W, LAKEVILLE, MN 55044
Service Location Name (for purposes of identification): Fire Station 4 ____________________________________________________
Service Location Special Instructions: ________________________________________________________________________
_______________________________________________________________________________________________________
SITE-SPECIFIC INFORMATION:
☐New ☑Renew ☐Change: Order Type: Renewal: No change
Service Location (Address): 20164 HERITAGE DR, LAKEVILLE, MN 55044
Service Location Name (for purposes of identification): Liquor Store 1 ____________________________________________________
Service Location Special Instructions: ________________________________________________________________________
_______________________________________________________________________________________________________
SITE-SPECIFIC INFORMATION:
☐New ☑Renew ☐Change: Order Type: Renewal: No change
Service Location (Address): 16479 KENRICK AVE, LAKEVILLE, MN 55044
Service Location Name (for purposes of identification): Liquor Store 4 ____________________________________________________
Service Location Special Instructions: ________________________________________________________________________
_______________________________________________________________________________________________________
SITE-SPECIFIC INFORMATION:
☐New ☑Renew ☐Change: Order Type: Renewal: No change
Service Location (Address): 20965 HOLYOKE AVE, LAKEVILLE, MN 55044
Service Location Name (for purposes of identification): Art Center _______________________________________________________
Service Location Special Instructions: ________________________________________________________________________
_______________________________________________________________________________________________________
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SITE-SPECIFIC INFORMATION:
☐New ☑Renew ☐Change: Order Type: Renewal: No change
Service Location (Address): 20110 HOLYOKE AVE, LAKEVILLE, MN 55044
Service Location Name (for purposes of identification): Heritage Center ___________________________________________________
Service Location Special Instructions: ________________________________________________________________________
_______________________________________________________________________________________________________
SITE-SPECIFIC INFORMATION:
☐New ☑Renew ☐Change: Order Type: Renewal: No change
Service Location (Address): 7570 179th ST W, LAKEVILLE, MN 55044
Service Location Name (for purposes of identification): Central Maintenance Facility __________________________________________
Service Location Special Instructions: ________________________________________________________________________
_______________________________________________________________________________________________________
SITE-SPECIFIC INFORMATION:
☐New ☑Renew ☐Change: Order Type: Renewal: No change
Service Location (Address): 20190 HOLYOKE AVE, LAKEVILLE, MN 55044
Service Location Name (for purposes of identification): Fire Station 1 ____________________________________________________
Service Location Special Instructions: ________________________________________________________________________
_______________________________________________________________________________________________________
Customer Contact Information.To facilitate communication the following information is provided as a convenience and may be
updated at any time without affecting the enforceability of the terms and conditions herein:
Billing Contact Site Contact Technical Contact
Name
Phone
Cell
Email
Address
M O N T H L Y S E R V I C E F E E S :20195 Holyoke Ave
Data Services:
Spectrum Business Bundle: No Bundle *
Base Service Network Miles: Class of Service: Standard CoS
MEF Service Types (if applicable): EPLAN $488.00
Speed:100 Mbps (Down/Up)
CPE:________
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M O N T H L Y S E R V I C E F E E S :18400 IPAVA AVE
Data Services:
Spectrum Business Bundle: No Bundle *
Base Service Network Miles: Class of Service: Standard CoS
MEF Service Types (if applicable): EPLAN $488.00
Speed:100 Mbps (Down/Up)
CPE:________
M O N T H L Y S E R V I C E F E E S :16720 DODD BLVD
Data Services:
Spectrum Business Bundle: No Bundle *
Base Service Network Miles: Class of Service: Standard CoS
MEF Service Types (if applicable): EPLAN $488.00
Speed:100 Mbps (Down/Up)
CPE:________
M O N T H L Y S E R V I C E F E E S :17490 KENRICK AVE
Data Services:
Spectrum Business Bundle: No Bundle *
Base Service Network Miles: Class of Service: Standard CoS
MEF Service Types (if applicable): EPLAN $488.00
Speed:100 Mbps (Down/Up)
CPE:________
M O N T H L Y S E R V I C E F E E S :9465 185TH ST W
Data Services:
Spectrum Business Bundle: No Bundle *
Base Service Network Miles: Class of Service: Standard CoS
MEF Service Types (if applicable): EPLAN $488.00
Speed:100 Mbps (Down/Up)
CPE:________
M O N T H L Y S E R V I C E F E E S :20164 HERITAGE DR
Data Services:
Spectrum Business Bundle: No Bundle *
Base Service Network Miles: Class of Service: Standard CoS
MEF Service Types (if applicable): EPLAN $488.00
Speed:100 Mbps (Down/Up)
CPE:________
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M O N T H L Y S E R V I C E F E E S :16479 KENRICK AVE
Data Services:
Spectrum Business Bundle: No Bundle *
Base Service Network Miles: Class of Service: Standard CoS
MEF Service Types (if applicable): EPLAN $488.00
Speed:100 Mbps (Down/Up)
CPE:________
M O N T H L Y S E R V I C E F E E S :20965 HOLYOKE AVE
Data Services:
Spectrum Business Bundle: No Bundle *
Base Service Network Miles: Class of Service: Standard CoS
MEF Service Types (if applicable): EPLAN $488.00
Speed:100 Mbps (Down/Up)
CPE:________
M O N T H L Y S E R V I C E F E E S :20110 HOLYOKE AVE
Data Services:
Spectrum Business Bundle: No Bundle *
Base Service Network Miles: Class of Service: Standard CoS
MEF Service Types (if applicable): EPLAN $488.00
Speed:100 Mbps (Down/Up)
CPE:________
M O N T H L Y S E R V I C E F E E S :7570 179th ST W
Data Services:
Spectrum Business Bundle: No Bundle *
Base Service Network Miles: Class of Service: Standard CoS
MEF Service Types (if applicable): EPLAN $488.00
Speed:100 Mbps (Down/Up)
CPE:________
M O N T H L Y S E R V I C E F E E S :20190 HOLYOKE AVE
Data Services:
Spectrum Business Bundle: No Bundle *
Base Service Network Miles: Class of Service: Standard CoS
MEF Service Types (if applicable): EPLAN $488.00
Speed:100 Mbps (Down/Up)
CPE:________
* If Customer has selected the Spectrum Business Special Offers, the Section 3(i) of the Commercial Terms of Service (for Spectrum Business
Bundle) shall apply.
CBCR v2 :006370000083PHt
O N E - T I M E C H A R G E S :
O N E - T I M E C H A R G E S $0.00
2.TOTAL FEES.
Total Monthly Service Fees of $5,368.00 are due upon receipt of the monthly invoice.
3.SERVICE PERIOD.The initial Service Period of this Service Order shall begin on the date installation is completed and shall
continue for a period of 36 months. Upon expiration of the initial term, this Service Order shall automatically renew for successive
one-month terms and Charter may then apply Charter’s then-current Monthly Service Fees unless either party terminates this
Service Order by giving thirty (30) days prior written notice to the other party before the expiration of the current term.
4.EPLAN SERVICES.Applicable only to EPLAN Data Transport Service.Customer acknowledges that EPLAN Services consist of
multiple end points connecting your designated locations to create a shared-data network. As new service locations are added to
your EPLAN Services, the Network Miles will increase. The performance parameter metric Delay is impacted by the total Network
Miles. Therefore, the applicable Delay metric is based upon the then-total Network Miles of the total of EPLAN Services provided
by Charter to Customer. Customer acknowledges that the applicable Delay metric will be based upon the then-current total
Network Miles.
* Your current Mileage Band is shown as Total EPLAN Network Miles in the above Monthly Service Fees table.
5.SERVICE LEVELS AND MAINTENANCE. See Attachment 1 to this Service Order.
6.NO UNTRUE STATEMENTS. Customer further represents and warrants to Charter that neither this Service Order, nor any other
information, including without limitation, any schedules or drawings furnished to Charter contains any untrue or incorrect statement
of material fact or omits or fails to state a material fact.
7.CONFIDENTIALITY.To the extent allowable by law, both parties agree to keep confidential and not to disclose directly or
indirectly to any third party, the terms of this Service Order or any other related Service Orders, except as may be required by law.
If any unauthorized disclosure is made by either party and/or its agent or representative,both parties shall be entitled to, among
other damages arising from such unauthorized disclosure, injunctive relief and shall have the option of terminating this Service
Order, other related Service Orders and/or the Service Agreement.Both parties agree to comply with the Minnesota
Government Data Practices Act as applicable to confidential information.
8.FACSIMILE. A copy sent via fax machine or scanned and e-mailed of a duly executed Agreement and Service Order signed by
both authorized parties shall be considered evidence of a valid order, and Charter may rely on such copy of the Agreement and
Service Order as if it were the original.
NOW THEREFORE, Charter and Customer agree to the terms and conditions included within this Service Agreement, including the
Commercial Terms of Service which follow, and hereby execute this Service Agreement by their duly authorized representatives.
Charter Fiberlink CCO, LLC City of Lakeville
By: Charter Communications, Inc., its Manager
Signature: ____________________________________________ Signature: _________________________________________
Printed Name: _________________________________________ Printed Name:______________________________________
Title: ________________________________________________ Title: _____________________________________________
Date: ________________________________________________ Date: _____________________________________________
Spectrum Business Account Executive:
Name: Pam Theisen
Telephone: (320) 229-7337
Fax: 866.915.5219 or 866.915.5220
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COMMERCIAL TERMS OF SERVICE
1. AGREEMENT TERM. This Agreement shall terminate
upon the lawful termination of the final existing Service
Order entered into under this Agreement.
2. SERVICE.Charter shall provide the Services during the
Service Period to Customer at the site(s) identified in the
Service Order(s). “Service Period” is the time period
starting on the date the Services are functional in all
material respects and available for use (the “Turn-up
Date”), and continuing for the number of months specified
in the Service Order(s).
3. STANDARD PAYMENT TERMS. Customer shall pay
fees and charges for the Services in the amount specified
on the Service Order in accordance with this Agreement.
A one-time charge (”OTC”) is a nonrecurring fee for
construction, Service installation charge(s), repair,
replacement, or any other nonrecurring costs or charges.
“Equipment” means the components (e.g., any gateway or
edge electronic device, node, router, switch,
communications lines/cables,etc.) that make up the
Network. “Network” means all of the physical elements
necessary to provide the Services.
(a) Charges. Customer shall pay all associated charges with
the Service(s), as set forth or referenced in the applicable
Service Order(s) or invoiced by Charter. These charges
may include, but are not limited to a monthly service fee
(“MSF”), nonrecurring fees for construction, installation,
repair, replacement or other one-time charges (“OTC”),
usage charges such as, pay-per-view charges, and
applicable federal, state, and local taxes, fees, surcharges
and recoupments (however designated), MSFs shall be
subject to increases attributable to programming, license,
copyright, retransmission and/or other similar costs
imposed upon Charter, Charter shall provide not less than
thirty (30) days prior notice to Customer of any MSF
change.
(b) Taxes, Surcharges, and Fees. Customer shall pay any
sales, use, property, excise or other taxes, franchise fees,
and governmental charges (excluding income taxes)
arising under this Agreement, in addition to any
surcharges that may be imposed as may be permitted
under and consistent with applicable law. A copy of
Customer’s tax exemption document, if applicable, must
be provided to Charter to certify tax-exempt status. Tax-
exempt status shall not relieve Customer of its obligation
to pay any applicable franchise fees. Charter reserves the
right from time to time to change the surcharges for
Services under this Agreement to reflect the charges or
payment obligations imposed on Charter which Charter is
permitted or required under applicable law to pass through
to Customer (e.g.,universal service fund (“USF”) charges,
franchise fees etc.).
(c) Change Requests. Any charges associated with Service
and Equipment installations, changes, or additions
requested by Customer subsequent to executing a Service
Order for the applicable site are the sole financial
responsibility of Customer. Charter shall notify Customer,
in writing, of any additional OTCs and/or adjustments to
MSFs associated with or applicable to such Customer
change requests prior to making any such additions or
modifications. Customer’s failure to accept such additional
charges within three days of receiving such notice shall be
deemed a rejection by Customer, and Charter shall not be
liable to perform any work giving rise to such charges. For
accepted charges, Customer shall be assessed such
additional OTCs and/or adjustments of the MSFs either (i)
in advance of implementation of the change request or (ii)
beginning on Customer’s next and/or subsequent
invoice(s).
(d) Site Visits and Repairs. If Customer’s misuse, abuse or
modification of the Services, Equipment or Network results
in a visit to the Customer site for inspection, correction or
repair, Charter may charge Customer a site visit fee as
well as charges for any resulting Equipment or Network
repair or replacement, which may be necessary.
(e) Invoicing Errors. Customer must provide written notice to
Charter of any invoice errors or disputed charges within 30
days of the invoice date on which the errors and/or
disputed charges appear for Customer to receive any
credit that may be due. Customer must have and present
a reasonable basis for disputing any amount charged.
(f) Late Fees. Undisputed amounts not paid within 30 days of
the invoice date shall be past due and subject to a late fee
of not more than 1.5% per month or the maximum amount
permitted by law.
(g) Non-payment. If Services are suspended due to late
payment, Charter may require that Customer pay all past
due charges, a reconnect fee, and one or more MSFs in
advance before reconnecting Services.
(h) Collection Fees. Charter may charge a reasonable
service fee for all returned checks and bank card, credit
card or other charge card charge-backs. Customer shall
be responsible for all expenses, including reasonable
attorney fees and collection costs, incurred by Charter in
collecting any unpaid amounts due under this Agreement.
(i) Bundled Pricing. If Customer has selected a Spectrum
Business Bundle (“SBB”) specifically, the following
conditions shall apply:
i. In consideration for Customer’s purchase of all Services
in the SBB and only with respect to that period of time
during which Customer continues to purchase such
SBB, Charter shall apply a discount to the Services
ordered under the applicable Service Order(s). Such
discount has been applied to the Services included in
Charter’s bundled pricing offer and is reflected in the
MSF for such Services.
CBCR v2 Confidential 006370000083PHt
ii. Upon discontinuation or termination by Customer of any
component of a Service of the applicable SBB, the
pricing for the remaining Services shall revert to
Charter’s a la carte pricing for such Services in effect at
the time. Termination liability applicable to the Services
under this Agreement shall otherwise remain
unchanged.
4. SERVICE LOCATION ACCESS AND INSTALLATION.
(a) Access. Charter will require reasonable access to each
service location listed on a Service Order (“Service
Location”) as necessary for Charter to review, install,
inspect, maintain or repair any Equipment or Materials
necessary to provide the Services. If Customer owns or
controls the Service Location(s), Customer grants Charter
permission to enter the Service Location(s) for the
exercise of such right. If a Service Location is not owned
and/or controlled by Customer, Customer will obtain, with
Charter's assistance, appropriate right of access. If such
right of access for Charter is not obtained by either party,
then Charter's obligations with respect to such Service
Location shall be considered null and void.
(b) Installation Review; Subsequent Interference. Charter may
perform an installation review of each Service Location
prior to installation of the Services. Upon request,
Customer shall provide Charter with accurate site and/or
physical network diagrams or maps of a Service Location,
including electrical and other utility service maps, prior to
the installation review. If Charter determines that safe
installation and/or activation of one or more of the
Services will have negative consequences to Charter’s
personnel or Network or cause technical difficulties to
Charter or its customers, Charter may terminate the
Service Order effective upon written notice to Customer or
may require Customer to correct the situation before
proceeding with installation or activation of the Services.
If during a Service Period, or any renewal thereof, (i)
proper operation of Equipment or provision of a Service is
no longer unhindered or possible as a result of
interference or obstruction due to any cause other than
Charter or (ii) such interference/obstruction or its cause
may endanger, hinder, harm or injure Charter’s personnel
or Network and/or cause technical difficulties to Charter or
its customers, Charter may terminate the affected Service
Order(s) without liability upon written notice to Customer.
(c) Site Preparation. Customer shall be responsible for
necessary preparations at its location(s) for delivery and
installation of Equipment and the installation and ongoing
provision of Services, including the relocation of
Customer’s equipment, furniture and furnishings as
necessary to access the Equipment or Services. Upon
request, Customer shall provide any available electrical,
utility service, and/or general physical network diagrams or
maps prior to installation or maintenance work to be
undertaken by Charter.
(d) Installation. Charter will schedule one or more installation
visits with Customer. Customer’s authorized
representative must be present during installation. If
during the course of installation Charter determines
additional work is necessary to enable Charter to deliver
the Services to the Service Location, Charter will notify
Customer of any additional OTCs. If Customer does not
agree to pay such OTCs by executing a revised Service
Order within five business days of receiving the same,
Customer and Charter shall each have the right to
terminate the applicable Service Order. Customer shall
connect Customer’s computer or network to applicable
Charter-provided Equipment to enable access to the
Services. Charter shall be responsible for reasonable
restoration efforts necessary to address any displacement
resulting from excavation.
(e) Ongoing Visits. Charter will need periodic access for
inspection, operation and maintenance of the Network.
Except in emergency situations, Charter will obtain
approval from Customer (not to be unreasonably withheld
or delayed) before entering Customer Premises. At
Charter’s request, Customer, or a representative
designated by Customer, will accompany Charter’s
employees or agents into any unoccupied unit for any
purpose relating to the Equipment.
5. EQUIPMENT AND MATERIALS.
(a) Responsibilities and Safeguards. Except as otherwise
provided in this Agreement or any Service Order(s),
neither party shall be responsible for the maintenance or
repair of cable, electronics, structures, Equipment or
materials owned by the other party; provided, however,
that subject to the indemnification limitations set forth in
this Agreement, each party shall be responsible to the
other for any physical damage or harm such party causes
to the other party’s personal or real property through the
damage –causing party’s negligence or willful misconduct.
Customer shall:
i. Safeguard Equipment against others;
ii. Not add other equipment nor move, modify,
disturb, alter, remove, nor otherwise tamper with
any portion of the Equipment;
iii. Not hire nor permit anyone other than personnel
authorized by Charter acting in their official
capacity to perform any work on Equipment; and
iv. Not move nor relocate Equipment to another
location or use it at an address other than the
Service location without the prior written consent
of Charter.
Any unauthorized connection or other tampering with the
Services or Equipment shall be cause for immediate
suspension of Services, termination of this Agreement
and/or legal action, and Charter shall be entitled to recover
damages, including the value of any Services and/or
Equipment obtained in violation of this Agreement in
addition to reasonable collection costs including
reasonable attorney fees. Should any antenna, or signal
amplification system for use in connection with
communication equipment hereafter be installed on the
Premises which interferes with the Services, Charter shall
CBCR v2 Confidential 006370000083PHt
not be obligated to distribute a signal to the Premises
better than the highest quality which can be furnished
without additional cost to Charter as a result of such
interference, until such time as the interference is
eliminated.
(b) Customer Security Responsibilities. Customer shall be
responsible for the implementation of reasonable security
measures and procedures with respect to use of and
access to the Service and/or Equipment. Charter may
suspend the Services upon learning of a breach of
security and will attempt to contact Customer in advance,
if practicable.
(c) Ownership. Notwithstanding any other provision
contained in this Agreement to the contrary, all Equipment
and materials installed or provided by Charter are and
shall always remain the property of Charter, shall not
become a fixture to the Premises, and must be returned to
Charter at any time Services are disconnected in the
condition in which they were received subject to ordinary
wear and tear. Customer will not sell, lease, assign nor
encumber any Equipment. Customer shall not obtain or
acquire title to, interest or right (including intellectual
property rights) in the Service or Equipment other than to
the limited extent of use rights expressly granted under
this Agreement.
(d) Equipment Return, Retrieval, Repair and Replacement.
Immediately upon termination of this Agreement and/or
Service Order(s) (“Termination”), at the discretion of
Charter, Customer shall return, or allow Charter to
retrieve, the Equipment supplied by Charter to Customer.
Failure of Customer to return, or allow Charter to retrieve,
Equipment within 10 days after Services are terminated
will result in a charge to Customer’s account equal to the
retail cost of replacement of the unreturned Equipment.
Customer shall pay for the repair or replacement of any
damaged Equipment, except such repairs or replacements
as may be necessary due to normal and ordinary wear
and tear or material/workmanship defects, together with
any costs incurred by Charter in obtaining or attempting to
regain possession of such Equipment, including
reasonable attorney fees.
6.ADMINISTRATIVE WEB SITE.Charter may, at its sole
option, make one or more administrative web sites
available to Customer in connection with Customer’s use
of the Services (each an “Administrative Web Site”).
Charter may furnish Customer with one or more user
identifications and/or passwords for use on the
Administrative Web Site. Customer shall be responsible
for the confidentiality and use of such user identifications
and/or passwords and shall immediately notify Charter 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 Web
Site. Customer shall be solely responsible for all use of the
Administrative Web Site, and Charter shall only be entitled
to rely on all Customer uses of and submission to the
Administrative Web Site as authorized by Customer.
Charter shall not be liable for any loss, cost, expense of
other liability arising out of any Customer use of the
Administrative Web Site, Charter may change or
discontinue the Administrative Web Site, or Customer’s
right to use the Administrative Web Site, at any time.
Additional terms and policies may apply to Customer’s use
of the Administrative Web Site. These terms and policies
will be posted on the site.
7. VIDEO, MUSIC AND CONTENT SERVICE. This Video,
Music and Content Service Section shall only apply if
Video, Music and Content Services are included in a
Service Order under this Agreement; however, continued
use or reception of the Video Services is subject to the
provisions of this Agreement.
(a) Music Rights Fees. Customer is responsible for and must
secure any music rights and/or pay applicable fees
required by the American Society of Composers, Authors
& Publishers (ASCAP), Broadcast Music, Inc. (BMI) and
SESAC, Inc. (SESAC) or their respective successors, and
any other entity, person or governmental authority from
which a license is necessary or appropriate relating to
Customer’s transmission, retransmission, communication,
distribution, performance or other use of the Services.
(b) Premium and Pay-Per-View. Customer may not: (i) exhibit
any premium Services such as HBO or Showtime in any
public or common area; (ii) order or request Pay-Per-View
(PPV) programming for receipt, exhibition or taping in a
commercial establishment; or (iii) exhibit nor assist in the
exhibition of PPV programming in a commercial
establishment unless explicitly authorized to do so by
agreement with an authorized program provider and
subject to Charter’s prior written consent.
(c) HD Formatted Programming. If Customer has selected
High Definition (“HD”) formatted programming, Customer
is responsible for provision, installation and maintenance
of the receiving equipment and/or facilities necessary for
its reception and display. Any failure of Customer to fulfill
the foregoing obligation shall not relieve Customer of its
obligation to pay the applicable MSFs or OTCs for the HD
formatted programming.
(d) Provision of Service. Without notice, Charter may
preempt, rearrange, delete, add, discontinue, modify or
otherwise change any or all of the advertised
programming comprising, packaging of, line-up applicable
to, and/or distribution of its Video Services.
(e) Restrictions. Customer shall not and shall not authorize or
permit any other person to (i) copy, record, dub, duplicate,
alter, make or manufacture any recordings or other
reproductions of the Services (or any part thereof); or (ii)
transmit the Services by any television or radio broadcast
or by any other means or use the Services outside the
Service Location. Customer acknowledges that such
duplication, reproduction or transmission may subject
Customer to criminal penalties and/or civil liability and
damages under applicable copyright and/or trademark
laws. With respect to the music programming comprising a
CBCR v2 Confidential 006370000083PHt
portion of the Services, Customer shall not, and shall not
authorize or permit any other person to, do any of the
following unless Customer has obtained a then-current
music license permitting such activity: (i) charge a cover
charge or admission fee to any Service Location(s) at the
time the Services are being performed or are to be
performed; (ii) permit dancing, skating or other similar
forms of entertainment or physical activity in conjunction
with the performance of the Services; or (iii) insert any
commercial announcements into the Services or interrupt
any performance of the Services for the making of any
commercial announcements.
8. INTERNET ACCESS SERVICE.This Internet Access
Service Section shall only apply if Internet Access
Services are included in a Service Order under this
Agreement; however, continued use of the Internet
Service shall be subject to the provisions of this
Agreement.
(a) Customer shall (i) maintain certain minimum equipment
and software to receive the Service (see
www.business.spectrum.com (or the applicable successor
URL) for the current specifications); (ii) ensure that any
person who has access to the Internet Services through
Customer’s computer(s), Service Location, facilities or
account shall comply with the terms of this Agreement, (iii)
be responsible for all charges incurred and all conduct,
whether authorized or unauthorized, caused by use of
Customer’s computers, service locations, facilities or
account using the Internet Services.
(b) Internet Service Speeds. Charter shall use commercially
reasonable efforts to achieve the Internet speed selected
by Customer on the Service Order, however, actual
Internet speeds may vary. Many factors affect speed
including, without limitation, the number of workstations
using a single connection.
(c) Electronic Addresses. All e-mail addresses, e-mail
account names, and IP addresses (“Electronic
Addresses”) provided by Charter are the property of
Charter. Customer may not alter, modify, sell, lease,
assign, encumber or otherwise tamper with the Electronic
Addresses.
(d) Changes of Address. Charter may change addressing
schemes, including e-mail and IP addresses.
(e) No Liability for Risks of Internet Use. The Service,
Charter’s network and the Internet are not secure, and
others may access or monitor traffic.
(f) No Liability for Purchases. Customer shall be solely liable
and responsible for all fees or charges for online services,
products or information. Charter shall have no
responsibility to resolve disputes with other vendors.
(g) Blocking and Filtering. Customer assumes all
responsibility for providing and configuring any “firewall” or
security measures for use with the Service. Except to the
extent set forth in the Supplemental Spectrum Business
Security Service Section, Charter shall not be responsible
in any manner for the effectiveness of these blocking and
filtering technologies. Charter does not warrant that others
will be unable to gain access to Customer’s computer(s)
and/or data even if Customer utilizes blocking and filtering
technologies, nor does Charter warrant that the data or
files will be free from computer viruses or other harmful
components. Charter has no responsibility and assumes
no liability for such acts or occurrences.
(h) Acceptable Use Policy. Customer shall comply with the
terms of Charter’s Acceptable Use Policy (“AUP”) found at
www.business.spectrum.com (or the applicable successor
URL) and that policy is incorporated by reference into this
Agreement. Customer represents and warrants that
Customer has read the AUP and shall be bound by its
terms as they may be amended, revised, replaced,
supplemented or otherwise changed from time-to-time by
Charter with or without notice to Customer. Charter may
suspend Service immediately for any violation of the
Charter AUP.
(i) WiFi Services. WiFi Services include Charter owned
equipment to establish wireless access points to enable
designated users of the Customer’s choice to wirelessly
access the Internet Service. Access of the Internet Service
via WiFi is subject to all of the same terms under this
Agreement.
9. SUPPLEMENTAL SERVICES. The following Subsections
shall only apply in the event the referenced supplemental
service has been selected by and are being delivered to
Customer. The supplemental services (also “Services”)
may be made up of software and hardware components.
Charter shall ensure the supplemental services are
operational and updated from time-to-time based on
manufacturer-sent updates. Except to the limited extent
described in the foregoing sentence, Charter makes no
warranties of any kind (express or implied) regarding the
supplemental services and hereby disclaims any and all
warranties pertaining thereto (including implied warranties
of title, noninfringement, merchantability, and fitness for a
particular purpose). Charter does not have title to and is
not the manufacturer of any software or hardware
components of the supplemental services nor is Charter
the supplier of any components of such software or
hardware. Customer shall return or destroy all software
components provided to Customer upon the termination of
the applicable Service Order, and in the case of the
destruction thereof, shall, upon request, provide Charter
with certification that such components have been
destroyed.IN NO EVENT SHALL CHARTER BE LIABLE
FOR ANY DAMAGES ARISING FROM THE
PERFORMANCE OR NONPERFORMANCE OF ANY
SUPPLEMENTAL SERVICES.
(a) Hosting. This Hosting Service subsection shall only apply
if one of Charter’s Hosting Services (“Hosting”) is included
as part of the Service in a Service Order under this
Agreement. Charter will provide to Customer Hosting
Service in accordance with the specifications associated
with the plan Customer has selected on the Service Order.
i. Hosting Software. The Hosting Service will
permit access to a variety of resources available
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from selected third parties, including developer
tools, communication forums and product
information (collectively, “Hosting Software”). The
Hosting Software, including any updates,
enhancements, new features, and/or the addition
of any new Web properties, may be subject to
and Customer shall comply with applicable
product use rights/end user license agreements
between such third parties and Customer.
Without abrogating or limiting anything set forth in
the Sections: Internet Access Service, this
Section, No Third-Party Support, Customer Use
or Performance, Charter (not the manufacturer)
shall provide technical support for Hosting
Service, but version changes of any such
software compatibility and/or suitability with any
other Customer provided software shall be
Customer’s responsibility. Customer hereby
consents to the disclosure to the provider of Third
Party Software, of Customer’s name and any
other necessary information for the limited
purpose of licensing rights. Customer shall not
use Hosting Service for or in connection with any
high risk use or activity such as aircraft or other
modes of human mass transportation, nuclear, or
chemical facilities, or Class III medical devices
under the Federal Food, Drug, and Cosmetic Act.
COPYING OR REPRODUCTION OF THE
HOSTING SOFTWARE TO ANY OTHER
SERVER OR LOCATION FOR FURTHER
REPRODUCTION OR REDISTRIBUTION IS
EXPRESSLY PROHIBITED, UNLESS
APPROVED IN WRITING BY CHARTER.
ii. Domain Names. Customer shall be solely
responsible for registering for or renewing a
desired domain name. Charter does not
guarantee that Customer will be able to register
or renew a desired domain name.
iii. Specification Limitations. Individual websites
may not at any time exceed the Hosting
specifications identified on the applicable Service
Order. If Customer’s Hosting account exceeds
the applicable specifications or is adversely
impacting Charter’s network or server(s), Charter
may (i) contact Customer to resolve the issues;
or (ii) if Customer has exceeded the then-
applicable specifications in any given month,
upgrade account on the next available billing
cycle to the next service level tier or suspend or
terminate the Hosting Service.
Notwithstanding anything to the contrary, if
Customer’s use of the Hosting Service is causing
an adverse impact on Charter’s network or
servers, Charter may suspend or terminate the
Hosting Service without notice.
iv. Limitation of Charter-provided Services. Certain
services are not provided by Charter as part of
the Hosting Service (e.g., Charter does not
provide nor offer webpage creation,
development, design or content services).
v. Hosting Fees. The applicable Service Order sets
forth the MSFs for the Hosting Service. Customer
is responsible for payment whether or not the
hosting platform is used and whether or not it
functions properly, unless such failure is caused
by Charter.
vi. Content Liability and Use Restrictions. Charter
exercises no control over the content of the
information passing through Customer’s site(s)
and it is Customer’s sole responsibility to ensure
that Customer and Customer’s users use of the
Hosting Service complies at all times with all
applicable laws and regulations and the AUP.
Charter shall have the right to disclose any and
all available information collected from Customer
to law enforcement authorities upon written
request by such authorities. Information that may
be disclosed includes IP addresses, account
history, and files stored on servers used to
provide the Hosting Service. If Customer
engages in any of the following prohibited
activities, Charter shall have the right to suspend
or terminate the Hosting Services and/or this
Agreement:
1. The hosting of unlicensed software.
2. Use of software or files that contain computer
viruses or files that may harm user's computers;
3. Any attempt or actual unauthorized access by
Customer or through Customer’s equipment to
any Charter website or the website of any
Charter customer;
4. The collection or any attempt to collect personally
identifiable information of any person or entity
without his, her or its express written consent.
Customer shall maintain records of any such
written consent throughout the term of this
Agreement and for three years thereafter;
5. Any action or inaction which is harmful or
potentially harmful to the Charter server
structure;
6. Running a banner exchange, free adult thumbnail
gallery post and/or free adult image galleries on
your website; or
7. Inclusion of sites with material, links, or resources
for hacking, phreaking, viruses, or any type of
site that promotes or participates in willful harm to
Internet sites, users or providers.
vii. Impositions on Customer’s End Users. Customer
is responsible for charging and collecting from its
end users any and all applicable taxes. If
Customer fails to impose and/or collect any tax
from its end users then, as between Charter and
Customer, Customer shall be liable for such
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uncollected tax and any interest and penalty
assessed thereon with respect to the uncollected
tax. Customer shall indemnify and hold the
Charter Indemnified Parties (defined below)
harmless for any costs incurred or taxes or fees
paid due to actions taken by the applicable taxing
authority to collect any such tax from Charter due
to Customer’s failure to comply with this Section.
(b) SB Security Service – Desktop and Managed. Charter’s
managed security service, SB Managed Security, and
desktop security service, SB Desktop Security
(collectively, “SB Security Service”) are each made up of
software and hardware components. Charter shall ensure
that the selected SB Security Service(s) is/are operational
and updated from time-to-time based on manufacturer-
sent updates. Charter is not the manufacturer of any
software or hardware components of either Spectrum
Business Security Service nor is Charter the supplier of
any components of such software or hardware.
(c) SB Back-Up Service. For Charter’s data storage service
(“SB Back-up”), Customer shall be assessed applicable
OTCs and MSFs which shall be based upon Customer’s
selection of version retention quantity and storage tier
(e.g., five gigabits). The version retention quantity selected
specifies the maximum number of separate versions of a
document that will be retained (running in sequential order
based on the last version created). For example, if
Customer has selected “seven” as the version retention
quantity, Customer will be able to access the last seven
versions of a particular document. In addition to OTCs and
MSFs, monthly storage overage fees shall apply each
month Customer exceeds the respective subscribed
storage level. Additional OTCs and MSFs also apply to
Customer-requested media and/or professional services.
Charter is not the manufacturer or supplier of any SB
Back-Up software components. Customer shall be
responsible for updating SB Back-Up from time-to-time
based on updates provided by the software manufacturer,
and any failure of Customer to perform such updates shall
relieve Charter from any responsibility to ensure that SB
Back-Up remains operational.
If the functionality of SB Back-Up cannot be maintained by
Charter, Charter shall have the right to discontinue
providing the Service immediately and Charter shall credit
Customer’s account for any pre-paid MSFs attributable to
the Service, except where such lack of functionality is
caused by Customer or any end user gaining access to
the Service through Customer’s facilities, equipment, or
point of access. Customer shall not be relieved of its
responsibility to continue to pay for SB Back-Up in the
event SB Back-Up does not function properly as a result of
Customer’s failure to install and configure the software,
activate the service or install manufacturer-provided
updates. CUSTOMER UNDERSTANDS AND
ACKNOWLEDGES THAT (1) IT IS CUSTOMER’S SOLE
RESPONSIBILITY TO CREATE AND RETAIN THE SB
BACK-UP PASSWORD THAT IS NECESSARY FOR
ACCESS TO ANY DATA STORED VIA THE SB BACK-
UP SERVICE AND (2) CHARTER HAS NO ACCESS TO
AND DOES NOT KNOW NOR KEEP ANY RECORD OF
THE PASSWORD CREATED BY CUSTOMER. FAILURE
BY CUSTOMER TO RETAIN CUSTOMER’S SB BACK-
UP PASSWORD SHALL RESULT IN COMPLETE LOSS
OF ACCESSIBILITY TO DATA STORED VIA SB BACK-
UP.
10. DATA NETWORKING (aka “DATA TRANSPORT”).
Charter will provide Data Networking Services for
Customer locations connected over coaxial and/or fiber-
optic cable. Connectivity is established between two or
more customer end-points under a unique customer
topology. Charter will install the coaxial or fiber-optic cable
into each Customer site as listed in the Service Order(s).
Charter will also supply an edge device at each site that
will be capable of receiving the Service as specified in the
Service Order(s).
i. Charter will terminate fiber-optic cable on a patch panel
or provide a coaxial outlet at an agreed upon minimum
point of penetration (MPOP) up to 50 feet within each
facility (unless otherwise specified in the Service Order).
If the hand-off point of the Data Networking Service at
Customer’s premise exceeds this distance, Customer
may be responsible for any additional costs for internal
wiring.
ii. Customer will make available to Charter a building
ground connection at each location that meets current
electrical codes for the placement of a fiber-optic patch
panel and/or coaxial outlet. Unless otherwise specified
in the applicable Service Order, it is recommended that
Customer provide a separate 20 Amp 110V AC circuit
for the edge electronics, which is powered by a UPS
system. Customer-supplied routing will be necessary for
communication between each Service Location.
iii. If Customer has selected “Monitoring” for a Service,
Charter shall monitor the Services 24 hours a day,
seven days a week. Customer shall contact the
Enterprise and Strategic Marketing Network Operations
Center at 1-866-603-3199 or subsequent number to
report Data Networking Service problems. Additional
fees may apply for Monitoring over coaxial cable.
iv. In the event Customer is receiving Data Networking
Services: Optical Ethernet EP-LAN or EVP-LAN,
Charter recommends that the Customer place a router
at each ingress/egress point (on Customer’s side of the
demarcation), which will reduce the number of customer
media access control (“MAC”) addresses which must be
learned by Charter’s network (aka ‘masking’) in order to
be conveyed. In the event Customer chooses not to
place a router on its side of the demarcation, Charter
will place limitations on the number of MAC addresses
that will be learned by Charter’s network and, in
circumstances where the customer exceeds these
limitations, some Customer network traffic will be denied
from entering Charter’s network. Additional monthly
fees will be applied if the number of MAC addresses on
a given EVC (Ethernet Virtual Connection) exceeds 500,
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and Charter will not allow more than 1000 MAC
addresses onto the network.
11. NO THIRD-PARTY HARDWARE OR SOFTWARE
SUPPORT. Customer is responsible for the installation,
repair and use of Customer-supplied third-party hardware
and/or software. For purposes of this Agreement the
Hosting Software shall be considered third party software.
Charter does not support third-party hardware or software
supplied by Customer. Any questions concerning third-
party hardware or software should be directed to the
provider of that product. Charter assumes no liability or
responsibility for the installation, maintenance,
compatibility or performance of third party software, any
Customer-supplied hardware or software with the
Services. If such third-party equipment or software impairs
the Services, Customer shall remain liable for payments
as agreed (if any) without recourse for credit or prorated
refund for the period of impairment. Charter has no
responsibility to resolve the difficulties caused by such
third-party equipment or software. If, at Customer’s
request, Charter should attempt to resolve difficulties
caused by such third-party equipment or software, such
efforts shall be performed at Charter’s discretion and at
then-current commercial rates and terms.
12. CUSTOMER USE.Customer shall not re-sell or re-
distribute access to the Service(s) or system capacity, or
any part thereof, in any manner without the express prior
written consent of Charter. Customer shall not use or
permit third parties to use the Service(s), including the
Equipment and software provided by Charter, for any
illegal purpose, or to achieve unauthorized access to any
computer systems, software, data, or other copyright or
patent protected material. Customer shall not interfere with
other customers’ use of the Equipment or Services or
disrupt the Charter Network, backbone, nodes or other
Services. Violation of any part of this Section is grounds
for immediate Termination of this Agreement and/or all
Service Orders in addition to any other rights or remedies
Charter may have.
13. PERFORMANCE.Charter will use commercially
reasonable efforts in keeping with normal industry
standards to ensure that the Service is available to
Customer 24 hours per day, seven days per week. It is
possible, however, that there will be interruptions of
Service. The Service may be unavailable from time-to-time
either for scheduled or unscheduled maintenance,
technical difficulties, or for other reasons beyond Charter’s
reasonable control. Temporary service
interruptions/outages for such reasons, as well as service
interruptions/outages caused by Customer, its agents and
employees, or by a Force Majeure Event, shall not
constitute a failure by Charter to perform its obligations
under this Agreement, and Customer will not hold Charter
at fault for loss of Customer revenue or lost employee
productivity due to Service outages.
14. DEFAULT; SUSPENSION OF SERVICE;
TERMINATION.No express or implied waiver by Charter
of any event of noncompliance shall in any way be a
waiver of any further subsequent event of noncompliance.
Nothing herein, including Termination, shall relieve
Customer of its obligation to pay Charter all amounts due.
(a) Default by Customer. Customer shall be in default under
this Agreement if Customer does one or more of the
following things (each individually to be considered a
separate event of default) and Customer fails to correct
each such noncompliance within 30 days of receipt of
written notice (“Default”):
i. Customer is more than 30 days past due with
respect to any payment required hereunder;
ii. Customer otherwise has failed to comply with the
terms of this Agreement or any other Service
Order(s) incorporated herein.
(b) Termination for Convenience. Notwithstanding any other
term or provision in this Agreement, Customer shall have
the right to terminate a Service Order, or this Agreement in
whole or part, at any time upon thirty (30) days prior
written notice to Charter, and subject to payment of all
outstanding amounts due, any applicable Termination
Charges, and the return of any Charter Equipment.
(c) Charter’s Right to Terminate and Termination Charge. If
Customer is in Default, Charter shall have the right, at its
option, without prior notice, and in addition to any other
rights of Charter expressly set forth in this Agreement and
any other remedies it may have under applicable law to:
i. Immediately suspend Services to Customer until such
time as the underlying noncompliance has been
corrected without affecting Customer’s on-going
obligation to pay Charter any amounts due under this
Agreement (e.g., the MSFs) as if such suspension of
Services had not taken place;
ii. Terminate the Services, this Agreement or the
applicable Service Order(s).
If Termination is due to Customer’ Default or is
elected/done by Customer for convenience, Customer
must pay Charter a Termination charge (a “Termination
Charge”), which the parties recognize as liquidated
damages. This Termination Charge shall be equal to 50%
of the unpaid balance of the MSFs that would have been
due throughout the applicable Service Period plus 100%
of (1) the outstanding balance of any and all OTCs plus (2)
any and all previously waived OTCs.
(d) Default by Charter. Charter shall be in default under this
Agreement if Charter fails to comply with the terms of this
Agreement and/or any or all of the applicable Service
Order(s), and Charter fails to remedy each such
noncompliance or occurrence within 30 days of receipt of
written notice from Customer describing in reasonable
detail the nature, scope and extent of the default or
noncompliance (“Charter Default”).
(e) Customer’s Right to Terminate and Termination Charge.
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i. In the event Customer wishes to terminate a Service
without cause, Customer shall be liable for the same
Termination Charges as described above.
ii. Customer shall have the right, at its option and in
addition to any other remedies it may have, to
terminate any applicable Service Order(s), if the
underlying event of Charter Default by Charter is
limited to Services provided under the applicable
Service Order(s) or this Agreement, if such Charter
Default is not so limited,.
iii. If Termination is due to a Charter Default, Charter
shall reimburse Customer for any pre-paid, unused
MSFs attributable to such terminated Service
Order(s). In addition, if Termination is due to Charter
Default within one year of the applicable Turn-Up
Date, Charter shall pay a Termination Charge, which
the parties recognize as liquidated damages, equal to
a portion of any OTC that has already been paid by
Customer to Charter relative to Service at the sites
covered by the terminated Service Order. This
Termination Charge shall be equal to the product of a)
the number of months (including partial months)
remaining in the initial 12 months of the initial Service
Period at the time of Termination and b) a ratio in
which the numerator is the total of OTCs paid to date
and the denominator is 12.
15. LIMITATION OF LIABILITY. PLEASE READ THIS
SECTION CAREFULLY, IT CONTAINS DISCLAIMERS
OF WARRANTIES AND LIMITATIONS OF LIABILITY.
(a) Limited Warranty. At all times during the Service Period,
Charter warrants that it will use commercially reasonable
efforts in keeping with industry standards to cause the
Services to be available to Customer. Charter does not
warrant that Services will be error free.
THE FOREGOING LIMITED WARRANTY IS EXCLUSIVE
AND IN LIEU OF ALL EXPRESS AND IMPLIED
WARRANTIES WHATSOEVER.
EXCEPT AS OTHERWISE STATED IN THIS
AGREEMENT, CHARTER MAKES NO WARRANTIES,
EXPRESS OR IMPLIED, AS TO ANY SERVICE AND
SPECIFICALLY DISCLAIMS ANY AND ALL IMPLIED
WARRANTIES, INCLUDING ANY IMPLIED
WARRANTIES OF MERCHANTABILITY, FITNESS FOR
A PARTICULAR PURPOSE, TITLE OR NON-
INFRINGEMENT OF THIRD PARTY RIGHTS.
WITHOUT LIMITING ANY EXPRESS PROVISIONS OF
THIS AGREEMENT, NEITHER PARTY SHALL BE
LIABLE TO THE OTHER FOR ANY INDIRECT,
CONSEQUENTIAL, EXEMPLARY, SPECIAL,
INCIDENTAL RELIANCE OR PUNITIVE DAMAGES
(INCLUDING LOST BUSINESS, REVENUE, PROFITS,
OR GOODWILL) ARISING IN CONNECTION WITH THIS
AGREEMENT OR THE PROVISION OF SERVICES,
INCLUDING ANY SERVICE IMPLEMENTATION
DELAYS AND/OR FAILURES, UNDER ANY THEORY
OF TORT, CONTRACT, WARRANTY, STRICT
LIABILITY OR NEGLIGENCE, EVEN IF THE PARTY
HAS BEEN ADVISED, KNEW OR SHOULD HAVE
KNOWN OF THE POSSIBILITY OF SUCH DAMAGES.
Any warranty claim by Customer must be made within 30
days after the applicable Services have been performed.
Charter’s sole obligation and Customer’s sole remedy,
with respect to any breach of the limited warranty set forth
herein, shall be a prorated refund of the fees paid by
Customer based on the period of time when the Services
are out of compliance with this limited warranty provision.
(b) Content. Any content that Customer may access or
transmit through any Service is provided by independent
content providers, over which Charter does not exercise
and disclaims any control. Charter neither previews
content nor exercises editorial control; does not endorse
any opinions or information accessed through any Service;
and assumes no responsibility for content. Charter
specifically disclaims any responsibility for the accuracy or
quality of the information obtained using the Service. Such
content or programs may include programs or content of
an infringing, abusive, profane or sexually offensive
nature. Customer and its authorized users accessing other
parties’ content through Customer’s facilities do so at
Customer’s own risk, and Charter assumes no liability
whatsoever for any claims, losses, actions, damages, suits
or proceedings arising out of or otherwise relating to such
content.
(c) Damage, Loss or Destruction of Software Files and/or
Data. Customer uses the Services and Equipment
supplied by Charter at its sole risk. Charter does not
manufacture the Equipment, and the Services and
Equipment are provided on an “as is basis” without
warranties of any kind. Charter assumes no responsibility
whatsoever for any damage to or loss or destruction of
any of Customer’s hardware, software, files, data or
peripherals which may result from Customer’s use of any
Service. Charter does not warrant that data or files sent by
or to Customer will be transmitted in uncorrupted form or
within a reasonable period of time.
(d) Unauthorized Access. If Customer chooses to run or offer
access to applications from its equipment that permits
others to gain access through the Network, Customer
must take appropriate security measures. Failing to do so
may cause immediate termination of Customer’s Service
by Charter without liability for Charter. Charter is not
responsible for and assumes no liability for any damages
resulting from the use of such applications, and Customer
shall hold harmless and indemnify the Charter Indemnified
Parties from and against any claims, losses, or damages
arising from such use. Charter is not responsible and
assumes no liability for losses, claims, damages,
expenses, liability, or costs resulting from others
accessing Customer’s computers, its internal network
and/or the Network through Customer’s equipment.
(e) Force Majeure Event. Neither Party shall be liable to the
other for any delay, inconvenience, loss, liability or
damage resulting from any failure or interruption of
Services, directly or indirectly caused by circumstances
beyond such party’s control, including but not limited to
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denial of use of poles or other facilities of a utility
company, labor disputes, acts of war or terrorism, criminal,
illegal or unlawful acts, natural causes, mechanical or
power failures, or any order, law or ordinance in any way
restricting the operation of the Services. Changes in
economic, business or competitive condition shall not be
considered a Force Majeure Event.
16. The Customer understands and agrees that Charter
disclaims and shall not be responsible for any liability
to the full extent that such arises from Customer’s
misrepresentation with regard to or noncompliance
with the terms of this Agreement and/or any Service
Order, Customer’s failure to comply with applicable
law, and/or Customer’s negligence or willful
misconduct.
17. TITLE.Title to the Equipment shall remain with Charter
during the applicable Service Period. Customer shall keep
that portion of the Equipment located on Customer
premises free and clear of all liens, encumbrances and
security interests. Upon termination of Service or
expiration of a Service Order’s Service Period for a
specific site, Charter shall have the right to remove all
Equipment components and/or leave any of such
components in place, assigning title and interest in such
components to Customer, it being understood that no
further notice or action is required to accomplish the
assignment contemplated hereunder. Charter shall have
the right to remove the Equipment and all components
within 60 days after such termination.
18. COMPLIANCE WITH LAWS.Customer shall not use or
permit third parties to use the Services in any manner that
violates applicable law or causes Charter to violate
applicable law. Both parties shall comply with all
applicable laws and regulations when carrying out their
respective duties hereunder.
19. PRIVACY.Charter treats private communications on or
through its Network or using any Service as confidential
and does not access, use or disclose the contents of
private communications, except in limited circumstances
and as permitted by law. Charter also maintains a Privacy
Policy with respect to the Services in order to protect the
privacy of its customers. The Privacy Policy may be found
on Charter’s website at www.business.spectrum.com. The
Privacy Policy may be updated or modified from time-to-
time by Charter, with or without notice to Customer.
20. GENERAL CUSTOMER REPRESENTATIONS AND
OBLIGATIONS.Customer represents to Charter (a) that
Customer has the authority to execute, deliver and carry
out the terms of this Agreement and associated Service
Orders and (b) that any person who accesses any
Services through Customer’s equipment or through the
Network facilities in Customer’s Premises will be an
authorized user, will use the Service, Network and/or
Network facilities in an appropriate and legal manner, and
will be subject to the terms of this Agreement. Customer is
responsible for ensuring its users of the Service comply
with the terms of this Agreement. Customer shall be
responsible for all access to and use of the Service by
means of Customer’s equipment, whether or not Customer
has knowledge of or authorizes such access or use.
Customer shall be solely liable and responsible for all
charges incurred and all conduct through either authorized
or unauthorized use of the Service, until informs Charter of
any breach of security.
21. NOTICES. Any notices to be given under this Agreement
shall be validly given or served only if in writing and sent
by nationally recognized overnight delivery service or
certified mail, return receipt requested, to the following
addresses:
If to Charter:
Charter Communications
ATTN: Commercial Contracts Management
Dept: Corp. - Legal Ops
12405 Powerscourt Drive
St. Louis, MO 63131
Notices to Customer shall be sent to the Customer billing
address.
Each party may change its respective address (es) for
legal notice by providing notice to the other party.
22. MISCELLANEOUS.
(a) Entire Agreement; Signatures. This Agreement and any
related, executed Service Order(s) constitute the entire
Agreement with respect to the Services, Network and
Equipment. This Agreement supersedes all prior
understandings, promises and undertakings, if any, made
orally or in writing by or on behalf of the parties with
respect to the subject matter of this Agreement. This
Agreement may be executed in one or more counterparts,
each of which is an original, but together constituting one
and the same instrument. Execution of a facsimile copy
will have the same force and effect as execution of an
original, and a facsimile signature will be deemed an
original and valid signature.
(b) No Amendments, Supplements or Changes. Except for
pricing terms as set forth in this Agreement, this
Agreement and the associated executed Service Order(s)
may not be amended, supplemented or changed without
both parties’ prior written consent.
(c) No Assignment or Transfer. The parties may not assign or
transfer (directly or indirectly by any means, by operation
of law or otherwise) this Agreement and the associated
Service Order(s), or their rights or obligations hereunder to
any other entity without first obtaining written consent from
the other party, which consent shall not be unreasonably
withheld; provided, however, that without Customer’s
consent, Charter may assign this Agreement and the
associated executed Service Order(s) to affiliates
controlling, controlled by or under common control with
Charter, or to its successor-in-interest if Charter sells
some or all of the underlying communications system.
(d) Severability. If any term, covenant, condition or portion of
this Agreement or any related, executed Service Order(s)
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shall, to any extent, be invalid or unenforceable, the
remainder of this Agreement or any related, executed
Service Order(s) shall not be affected and each remaining
term, covenant or condition shall be valid and enforceable
to the fullest extent permitted by law.
(e) Governing Law. The law of the state in which the Services
are provided (excluding its conflicts of law provisions) shall
govern the construction, interpretation, and performance
of this Agreement, except to the extent superseded by
federal law. IN ANY AND ALL CONTROVERSIES OR
CLAIMS ARISING OUT OF OR RELATING TO THIS
AGREEMENT, ITS NEGOTIATION, ENFORCEABILITY
OR VALIDITY, OR THE PERFORMANCE OR BREACH
THEREOF OR THE RELATIONSHIPS ESTABLISHED
HEREUNDER, CUSTOMER AND CHARTER EACH
HEREBY WAIVES ITS RIGHT, IF ANY, TO TRIAL BY
JURY.
(f) Both parties had the opportunity to review and participate
in the negotiation of the terms of this Agreement and the
Service Order(s) and, accordingly, no court construing this
Agreement and any Service Order(s) shall construe it
more stringently against one party than against the other.
(g) No Third Party Beneficiaries. The terms of this Agreement
and the parties’ respective performance of obligations as
described are not intended to benefit any person or entity
not a party to this Agreement, and the consideration
provided by each party hereunder only runs to the
respective parties hereto, and that no person or entity not
a party to this Agreement shall have any rights hereunder
nor the right to require performance of obligations by
either of the parties hereto.
(h) Waiver. Except as otherwise provided herein, the failure
of Charter to enforce any provision of this Agreement shall
not constitute or be construed as a waiver of such
provision or of the right to enforce such provision.
.
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