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Home My WebLink About5.922 Original Contract ,I I ; 5. ,,~~ QWEST ISDN PRS, AND/OR DSS ADVANCED, AND/OR UAS BULK RATED AGREEMENT This Qwest Corporation Bulk Rated Agreement ("Agreement") is between City of Port Angeles ("Customer") and Owest Corporation ("Qwest") and is effective on the date Qwest signs it ("Effective Date'). Owest will provide, and Customer will purchase, Owest Bulk Rated Integrated Services Digital Network. Primary Rate Service ("ISDN PRS") and/or Bulk Rated Digital Switched Service Advanced ("OSS Advanced") and/or Bulk Rated Uniform Access Solution Service ("UAS") provided under this Agreement Ondlvidually and collectively referred to as "Service"). Any Owest tariff, price list, price schedule, administrative guideline, catalog, and other rate and term schedules (hereinafter, whether individually or together, "Tarifl") applicable to the Service is Incorporated into this Agreement by reference and made a part of this Agreement. The Service will be governed by: (a) the Tariff applicable to. the Service; and (b) to the extent a comparable Tariff term or condition does not apply to the Service, the terms and conditions set forth in this Agreement. Owest reserves the right to amend, change, withdraw, or file additional Tariffs in its sole discretion, with such updated Tariffs effective upon posting or fulfillment of any necessary regulatory requirements. Service is subject to technical publication 77400 located at htlp:/lwww.Qwest.com/techpubl ("Tech Pub"). 1. Scope. 1.1 ISDN PRS. If Customer purchases ISDN PRS, Owest will provide digital intraLATA, intrastate, switched local exchange telecommunications service utilizing ISDN PRS technology that transports and distributes voice, data, image, and/or facsimile communications separately or simUltaneously over the public, switched, local exchange network. An ISDN PRS circuit includes a DS1 facility, an ISDN PRS service configuration, and trunks. ISDN PRS operates at 1.544 megabits per second (Mbps). ISDN PRS may be configured as 23 B channels and one D channel, 24 B channels only (24B), or 23 Ei channels and one back-up 0 channel (23B+BUD). Each B channel transmits voice or data at 64 kilobits per second (Kbps). The D channel carries signaling information at 64 Kbps. 1.2 ISDN PRS-UAS. If Customer purchases ISDN PRS, Customer may also select Uniform Access Solution service as an optional feature as that service is defined in the Tariff under Primary Rate Service. An ISDN PRS-UAS circuit provides digital service with single-number route indexing, which includes a DS1 facility with common equipment. and a network connection which provides for local exchange, toll network access. Each DS1 facility utilizes the channels configured as: (a) In-only trunking; or (b) Two-way trunking. 1.3 DSS Advanced. If Customer purchases DSS Advanced, Owest will provide Customer with a circuit that includes a digital DS1 facj[jty, common equipment to interconnect with Qwest's local exchange switching office and advanced, flat usage trunks and DID trunk termination for access to the local exchange and toll networks. DSS Advanced operates at a maximum speed of 1.544 Mbps. 1.4 UAS. If Customer purchases UAS, Qwest will provide Customer with a digital circuit with single-number route indexing, which includes a DS1 facility with common equipment, and a network connection which provides for local exchange, toll network access. Each DS1 faCility utilizes the channels configured as: (a) In-only trunking; or (b) Two-way trunking. 1.5 If Customer is a provider of .information service," as that term is defined in 47 U.S.C. ~153 (20), Customer represents and warrants that ISDN PRS under this Agreement will not be used to provide Information service to its End Users, including but not limited to termination or origination of Voice over Internet Protocol ("VoIP"). "End Users" means any entity to which Customer provides information service. If at any time during the Term of this Agreement this representation and warranty is no longer accurate, Customer agrees to notify Owest and execute a new agreement. 2. Term. 2.1 This Agreement will expire 36 months from the date the Service is available to Customer under this Agreement, as evidenced by Owest records ("Term"). The Minimum Service Period for Service is 12.months from the date Service is available for use ("Minimum Service Period"). Any Service installed for 12 consecutive months prior to the Effective Date of this Agreement will be deemed to have met the Minimum Service Period. 3.2 Owest will notify Customer of the date the Service is available for use. In the event Customer informs Owest that it is unable or unwilling to accept the Service at such time, the subject Service will be held available for Customer for a period not to exceed 30 business days from such date ('Grace Period"). If after the Grace Period, Customer stili has not accepted the Service, Qwest may either. (a) commence with regular monthly billing for the subject Service; or (b) cancel the subject Service. If Customer cancels an order for Service prior to the date the Service is available for use, or is unable to accept the Service during the Grace Period and Owest cancels the Service at the end of the Grace Period, the Tariff cancellation charges may apply. 4. Charges and Billing. 4.1 Customer will pay 1he total monthly recurring charges ("MRC") and nonrecurring charges ('NRC") for the Service specified in Exhibil1. For Service requested on any subsequent orders or amendments to this AgreefTIent, Customer will also pay the total MRC and Copyright@ Owest. All Rights Reserved. Page 1 CONFIDENTIAL v1.090808 PRSIDSS/UAS - BULK ,I ' QWEST ISDN PRS, AND/OR DSS ADVANCED, AND/OR UAS BULK RATED AGREEMENT NRC specified on the subsequent orders or amendments. The MRC will not change during the Term of this Agreement. Customer must pay Qwest all charges by the payment due date on the invoice. Any amount not paid when due will be subject to a late charge as specified by the Tariff, or if there is no such late charge specified in the Tariff, the amount due will be subject to late interest at the lesser of 1%% per month or the highest rate permitted by applicable law. Customer must also pay Qwest any applicable federal, state and local taxes, surcharges, and other similar charges ("Taxes') assessed in connection with Customer's Service. Taxes are subject to change. Qwest may reasonably modify the payment terms or require other assurance of payment based on Customer's payment history or a material and adverse change In Customer's financial condition. 4.2 The charges for Service under this Agreement, including any and all discounts to which Customer may be entitled, will be offered and charged to Customer independently from and regardless of the Customer's purchase of any customer premises equipment or enhanced services from Qwest. 4.3 If Service is not available in Customer's switch, interoffice mileage charges ("Mileage MRC. and "Mileage NRC") for transport between switches will apply. 5. Service Changes. 5.1 Moves. Customer may move the physical location of all or part of Service to another location within a Qwest serving area, provided the following conditions are met; (a) Service moved to the new location is provided to Customer by Qwest; (b) Customer advises Qwest that Service at the new location replaces the existing Service; (c) Customer's request for disconnection of the existing Service and installation of the Service at the new location are received by Qwest on the same date; (d) Customer requests that Owest install the Service at the new location on or prior to the disconnection date of the existing Service; and (e) Customer agrees to pay all applicable rates and charges for the requested move and Service at the new location. 5.2 Additions to Service. Service may be added up to 12 months prior to the expiration date of this Agreement, at the rates specified herein. Qwest will supply such additions to Customer, subject to the following conditions: (a) the necessary facilities are available as determined by Owest to provide the Service; and (b) a new Minimum Service Period is established for each new addition to Service. If the Service being added is not itemized in Exhibit 1, Customer agrees to execute a written amendment evidencing such addition to Service. 5.3 Other orders for Service. Service may be ordered during the 12 months prior to the expiration date of this Agreemen~ under the following circumstances: (a) Customer and Qwest renegotiate and execute a new agreement that may include existing Service plus the addltion~1 Service; (b) Service is ordered pursuant to a new and separate agreement; or (c) Service Is ordered under the month-to- month tariff rates then in effect. 6. Termination. 6.1 Either party may terminate Service and/or this Agreement in accordance with the applicable Tariff or for Cause. 'Cause" means the failure of a party to perform a material obligation under this Agreement, which failure is not remedied: (a) for payment defaults by Customer, within five days of separate written notice from Qwest of such default (unless a different notice period is specified in the Tariff); or (b) for any other material breach, within 30 days of written notice (unless a different notice period is specified in the Tariff or this Agreement). Customer will remain liable for charges accrued but unpaid as of the termination date. If, prior to the conclusion of the Term, Service and/or this Agreement is terminated either by Qwest for Cause or by Customer for any reason other than Cause, then Customer will also be liable for a termination charge ("Termination Charge"). 6.2 If termination (s during the Minimum Service Period, Customer will pay a Termination Charge of 100% of the MRC for terminated Service multiplied by the number of months (or fraction thereof) remaining in the Minimum Service Period, plus 50% of the MRC multiplied by the number of months remaining in the Term after the Minimum Service Period. 6.3 If termination is after the Minimum Service Period, Customer will pay a Termination Charge of 50% of the MRC for terminated Service multiplied by the number of months (or fraction thereof) remaining in the Term. 6.4 A Termination Charge will be waived when all of the follOWing condrnons are met: (a) Customer discontinues Service and signs a new service agreement(s) for any other Qwest provided service(s); (b) the new service agreement(s) have a total value equal to or greater than 115% of the remaining prorated value of the existing agreement(s) (excluding any special construction charges, applicable nonrecurring charges, or previously billed but unpaid recurring and/or nonrecurring charges); (c) Customer places the orders to discontinue the Service and establish new service at the same time (within 30 calendar days of each other if service is in New Mexico); (d) the new service(s) installation must be completed within 30 calendar days of disconnection of the Service, unless such installation delay is caused by Qwest; and (e) a new minimum service period goes into effect, if applicable, when the new service agreement term begins. The waiver does not apply to changes between regulated and unregulated or enhanced products and services. 1. Out-Of-Servlce Credit. If Qwest causes a Service interruption, an out-of-service credit will be calculated under the state local exchange Tariff. If there is no applicable Tariff and the interruption lasts for more than 24 consecutive hours after Owest receives notice of it, Qwest will give Customer credit calculated by dividing the monthly rate for the affected Service by 30 days; and then multiplying that daily rate by the number of days that Service was interrupted. Copyright @ Qwest. All Rights Reserved. Page 2 CONFIDENTIAL v1.090808 PRS/DSSIUAS - BULK ,i QWEST ISDN PRS, AND/OR DSS ADVANCED, AND/OR UAS BULK RATED AGREEMENT 8. Disclaimer of Warranties. QWEST DISCLAIMS ALL EXPRESS OR IMPLIED WARRANTIES, INCLUDING WITHOUT LIMITATION, WARRANTIES OF TITLE, NON INFRINGEMENT, MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. NO ADVICE OR INFORMATION GIVEN BY QWEST, ITS AFFILIATES, AGENTS, OR CONTRACTORS OR THEIR RESPECTIVE EMPLOYEES WILL CREATE ANY WARRANTY. CUSTOMER ASSUMES TOTAL RESPONSIBILITY FOR USE OF THE SERVICE. 9. Limitation of liability. NEITHER PARTY, ITS AFFILIATES, AGENTS, OR CONTRACTORS WILL BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, RELIANCE, PUNITIVE, OR CONSEQUENTIAL DAMAGES OR FOR ANY LOST PROFiTS OR REVENUES OR LOST DATA OR COSTS OF COVER RELATING TO THE SERVICE OR THIS AGREEMENT, REGARDLESS OF THE LEGAL THEORY UNDER WHICH SUCH LIABILITY IS ASSERTED. WITH REGARD TO ANY SERVICE RELATED CLAIM BY CUSTOMER FOR DAMAGES THAT IS NOT LIMITED BY THE PRECEDING SENTENCE, CUSTOMER'S EXCLUSIVE REMEDIES FOR SUCH CLAIM WILL BE LIMITED TO THE APPLICABLE OUT-OF-SERVICE CREDITS, IF ANY. This limitation of liability will not apply to a party's indemnification obligations or Customer's payment obligation for charges under this Agreement (e.g., Service charges. Taxes, interest, and termination or cancellation charges). 10. Personal Injury, Death, and Property Damage. Each party will be responsible for the actual, physical damages it directly causes to the other party in the course of its performance under this Agreement, limited to damages resulting from personal injury or death to a party's employees and loss or damage to a party's personal tangible property arising from the negligent acts or omissions of the liable party; PROVIDED, HOWEVER, THAT NEITHER PARTY, ITS AFFILIATES, AGENTS, OR CONTRACTORS WILL BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, RELlANCE, PUNITIVE, OR CONSEQUENTIAL DAMAGES OR FOR ANY LOST PROFITS OR REVEN U ES OR LOST DATA OR COSTS OF COVER. 11. Confidentiality; Publicity. Neither party will, without the prior written consent of the other party: (a) disclose any of the terms of this Agreement or use the name or marks of the other party or its Affiliates; or (b) disclose or use (except as expressly permitted by, or required to achieve the purposes of, this Agreement) the Confidential Information of the other party. Qwest's consent may only be given by its Legal Department. A party may disclose Confidential Information if required to do so by a governmental agency, by operation of law, or if necessary in any proceeding to establish rights or obligations under 1his Agreement, provided that the disclosing party gives the non-disclosing party reasonable prior written notice. "Confidential Information" means any information that is not generally available to the public, whether of a technical, business or other nature and that: (c) the receiving party knows or has reason to know is confidential, proprietary or trade secret information of the disclosing party; and/or (d) is of such a nature that the receiving party should reasonably understand that the disclosing party desires to protect such information against unrestricted disclosure. Confidential Information will not include information that is in the public domain through no breach of this Agreement by the receiving party or is already known or is independently developed by the receiving party. . 12. Governing Law; Dispute Resolution. 12.1 Governing law: Forum. This Agreement will be governed by the laws of the state of Colorado, except with regard to matters which are within the exclusive jurisdiction of the state or federal regulatory agency. Those matters alone will be governed by the laws of the appropriate jurisdiction. Any legal proceeding relating to this Agreement will be brought in a U.S. District Court, or absent federal jurisdiction, in a state court of competent jurisdiction, in the location of the party to this Agreement no1 initiating the action, as indicated in the Notices section. But Owest may, at its discretion, initiate proceedings in Denver, Colorado to collect undisputed amounts billed. This provision is not intended. to deprive a small claims court or state agency of lawful jurisdiction that would otherwise exist over a claim or controversy between the parties. 12.2 Waiver of Jurv Trial and Class. Action. Each party, to the extent permitted by law, knowingly, voluntarily, and intentionally waives its right to a jury trial and any right to pursue any daim or action relating to this Agreement on a class or consolidated basis or in a representative capacity. 13. Notices. Unless otherwise provided herein, all required notices to Owest must be in writing, sent to 1801 California St., # 900, Denver, CO 80202; fax#: 888-778-0054; Attn.: Legal Dept., and to Customer at Its then current address as reflected in Qwest's records Attn.: General Counselor other person designated for notices. Unless otherwise provided herein, all notices will be deemed given: (a) when delivered In person to the recipient named above; (b) three business days after mailed via regular U.S. Mail; (c) when delivered via overnight courier mail; or (d) when delivered by fax jf duplicate notice is also sent by regular U.S. Mail. 14. General. Customer may n,ot assign this Agreement or any of its rights or obligations under this Agreement without the prior written consent of Qwest, which consent will not be unreasonably withheld. . Customer may not assign to a reseller or a telecommunications carrier under any circumstances and Customer represents that it will not resell the Service. This Agreement is intended solely for Qwest and Customer, and not to benefit any other person or entity (e.g., Customer's members, End Users, customers, or any other third parties who utilize or access the Service or the Owest network via 1he Service provided hereunder). If any term of this Agreement is held unenforceable, such term will be construed as nearly as possible to reflect the original intent of the parties and the remaIning terms will remain in effect. Neither party's failure to insist upon strict performance of any provision of this Agreement will be construed as a waiver of any of its rights hereunder. All terms of this Agreement that should by their nature survive the termination of this Agreement will so survive. If there is a conflict in any term or condition of any documents that govern the provision of the Service hereunder, the following order of precedence will apply in descending order of control: the Tariff, this Agreement, the Tech Pub, and Qwest records. Neither party will be liable for any delay or failure to perform its obligations hereunder if such delay or failure is caused by a Force Majeure Event. "Force Majeure Event" means an unforeseeable event beyond the reasonable control of that party, including without limitation: act of God, fire, flood, Jabor strike, sabotage, cable cuts. acts of terror, Copyright @ Qwest. All Rights Reserved. Page 3 CONFIDENTIAL . v1.090808 PRS/DSS/UAS " BULK OWEST ISDN PRS, AND/OR DSS ADVANCED, AND/OR UAS BULK RATED AGREEMENT material shortages or unavailability, government laws or regulations, war or civil disorder, or failures of suppliers of goods and services. Except for Tariff or Service modifications initiated by Owest, all amendments to this Agreement must be in writing and signed by the parties' authorized representatives. However, any change in rates, charges, or regulations mandated by the legally constituted authorities will act as a modification of any contract to that extent without further notice. Each party reserves the right at any time to reject any handwritten change to this Agreement. 15. Entire Agreement This Agreement constitutes the entire agreement between Customer and Owest and supersedes all prior oral or written agreements or understandings relating to this subject matter. 00]) f/1Mt0-~ 11-';2 S- -0<6. '\:.,Of Port Angeles ~~ Au~ed Signature ...-- ~A ,.,..~... P. 11 ~n.te.R. Name Typed or Printed s.,s-t<<t"'s.<:.oo~.!'","~l"<;;)1Z J:r~~ 'Te~ T~e ' \1/')..., I ':L. ~~ <:6 Date o Date Acld;lS for NoJl,ces' ~-c.\ <~\<.. ~ L}\ ~ 4'R. V\:S' Copyright @ Owest. All Rights Reserved. Page 4 CONFIDENTIAL v1.090808 PRS/DSS/UAS - BULK 'I i : '~ QWEST ISDN PRS, AND/OR DSS ADVANCED, AND/OR UAS BULK RATED AGREEMENT FOR THE STATE OF Washington EXHIBIT 1 City of Port An~eles Customer ServIce Location including Circuit 10 Type of Service Total City and State or & Qty. MRC/each MRC per BTN (USOC) Location 321 East Fifth Street, Port Angeles, W A, new 1 800.00 800.00 98362 1703 S. B Street, Port Angeles, W A, new 1 800.00 800.00 98362 . Total MRC: 1600.00 AQCB Contract Number: Mileage-related Components and Charges (If applicable): Customer Address Circuit ID or BTN Description Qty. Mileage Mileage (USOC) MRC/each NRC/each Total Mileage MRCs and NRCs: Copyright@Qwest. All Rights Reserved. Page 5 CONFIDENTIAL v1.090808 PRSIDSS/UAS - BULK