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HomeMy WebLinkAboutSoftware Agreement - Cogent Communications Inc - ISP Provider for the MPAC Wireless Improvements1316 COUNTY -CITY BUILDING 227 W, JETFERSON Bouu",'VARI) Soup 'rii BEND. INDIANA 46601-1830 �;f1xntj1x1j2id1j 0 February 13, 2018 Ruth Keefer Cogent Communications, Inc. 2450 N. Street, NW Washington, DC 20037 RE: Software Agreement Dear Ms. Keefer: PHOW, 574/235-9251 FAX 574/ 235-9171 The Board of Public Works, at its meeting held on February 13, 2018, approved the above referenced agreement regarding an ISP Provider for the Morris Performing Arts Center wireless improvements in the amount of $202 per month, plus a $500 one-time setup fee. Enclosed please find the original of the agreement for your signature. Please sign and return the original agreement to our office and retain a copy for your records. If you have any further questions regarding this matter, please call this office at (574) 235- 9251 . Sincerely, Linda M. Martin, Clerk Enclosure c: John Martinez, Venues, Parks, & Arts Mike Sniadecki, Innovation & Technology Dan O'Connor, Innovation & Technology GARY A. GILOT SUZANNA M. FRITZBERG Ei.IZABETH A. MARADIK JAMEs A. MUELLER THERESE J. DORAU yrLR 07-1; 07_77, Dedicated Internet Access Customer Order Form North America us Customer and Order Information Customer Name City of South Bend . . Customer Description Corporate Firm Order Date 30-Jan-2018 Customer Requested Service Date This dale is the eadiaM service Date requested by Customer. Billing starts on the Service Date. Installation of the Service is subibe(to the SLA and Product Rider, While COGENT may install the Service on the Requested Service Date, COGENT does not guarantee that the Service will be installed on that date. Service Information Product Type On -Net (Corporate) Service Parameters Cogent Communications, Inc. 2450 N Street, NW Washington, DC 2G037 www.,ogentco.com Resell Customer (Name) No Agent Deal (Name) Yes Rob Dobson Legacy Orders Termination N!A Delay) For all Legacy orders listed in the Service information section below, Customer elects 1 of 3 options: 1) Immediate Termination, 2) Delayed Telminalion (up to a days), or 3) No Termination, i.e., legacy orders will renewfor successive Renewal Terms of one (1) month. Selectallernative(if Quoted USD U5 Dollars available) Currency Order Legacy Cogent Service Bandwidth CDR Initial Term Burst Fee Installation Base Number Order Type Order Node Id Interlace Billing Model (per Mbps) Fee Monthly Fee Mbps Months USD USD USD Number 1-300209621 New:. 3895970 Fast-E 50 36 ` ` Bursfabte 90th 2.52 500.00 202.00' Options Note: IP Addresses Allocation, BGP, VLAN and LAG option orders always have an Initial Term of one (1) month. Order Option Installation Monthly Fee Description Comments Fee Number Selected USD USD f IP Addresses Allocation Order Type Legacy Block size 1P version ' y Note: IPo ianrllARM Rid. for Prow€der Independent resources) needs to be Order # #total [Ps Legacy r Order Type ASN Owner ASN IP version BGP Routing Note_ LOA(.) issued by ovmers or Secondary ASN(s) needs) to be- submltled vnlh Order Form. Order# r mom VLAN(s) wl static routing Order T e yp Legacy Secondary IPs Secondary Port Order # ? r r w R.I.LOAt.)I uedbynnneranf Secondary lPls)needs)lo 6e submitted,... vrilh Order Form- Order# Owner IPs . vim, r Legacy � 20 � Link Aggregation (LAG) Order Type Services involved in LAG -bundle � n..,. (As de6cdbed,n Product Rider) Order# NO � Expedite Delivery As described in Product Rider T r Billing Options Billing Method Master Service Other Involved Services yY r (As described In Product Rider)- Product Comments Port Order El Cabling (AS described in ..— .. Product Rider) Equipment Product Comments Port Order # r .._ (As described in . Product Rider) - ... ... - .... Total Fees Installation Monthly Fee Fee USD USD Total Fees including Options 500.00 202.00 (Note: Burst Monthly Fees may be charged in addition as defined In the attached Pmduct Rider) " If customer has elected to bebllled Ina currency othee than the currency used for the Oueled price, the quoted Ptice mil be rnnverted Into select . the[Flhn4 cwrencysJected above on lhedate Ws Ord. iawlidaled by COGENT. In pertorming thewnenry conversion an such date, alternative (if BIIIIng Currency— USD U Dollars COGENT Dill use the wrr w conversion rate as otthedose of business for the remousday asset forth atwtm da.cam, available) Initials Customer: DIA Layer 3 Order Form V4-39 Cogent Communications Confidential Page 112 cogent Customer Service Delivery Information Dedicated Internet Access Customer Order Form North America TenanUDatacenter Name City of South Bend Node ID 38959-0 Service Address Suite / Floor 1440 Ignition Drive South Data Realty City, State, Province South Bend, IN Postal Code 46601 Country USA aervice oei vniy arvays lanes piece at uogem uemarcauon roimas cornea in me attached Product Rider. Delivery Contact Name Michael Sniadecki Telephone (574) 245-6004 Cellphone Fax Email msniadec@southbendin.gov Cogent Contact Information Cogent Company Contact Location Washington, DC Address 14G: 2450 N Street, NW Washington, DC 20037 Phone 202-295-4200 Fax 202-318-2558 Service Provisioning sd@coger)Lco.com Customer Care support@cogentco.conl Contract Documents The entire, Customer Subscriber Agreement (GSA), entered into between Customer and COGENT, is made up of the documents listed here. Capitalized terms are defined in the text of the Terms or Definition section of the Terms. All prior agreements, proposals, representations, statements, or understandings, whether written or oral, concerning such Services, are superseded. Customer certifies that the documents constituting the GSA are the documents and forms that have been supplied to Customer by Cogent and that Customer has made no changes to them. Notes Cogent Communications, Inc,, 2450 N Street, NW Washington, CC 20037 omm. cogerftco. com Customer Contractinlq & Billinct Information Company Name City of South Bend Billing Address 227 W. Jefferson Blvd Suite / Floor Floor 12 City, State, Province _ - South Bend, IN Postal Code 46601 Country USA. Company Registr. Ni Tax / VAT ID Number Request for consolidated billing (one account / invoice for multiple ports in the same country)' - uonMiaareo oiling requests mist ne ravoawea ano approver oy argent. Billing Contact Name Accounting Department Telephone (574) 235-9216 Cellphone Fax Email sbitinvoices@southbendin.gov Sales Name Ruth Keefer Account Manager Phone Email 312-960-6902 _._..._ rl<eefer@cogentco.com Sales sales@cogentco.com Billing bill ing@cogentco.cam Termination terms@cogentco.com (1) Order Form (2) Terms, as attached (initialed by Customer) (For current customers, if Terms are not attached, the current Terms remain in force) (3) SLA(tittp://www.cogentco.comlfiles/ps—intcrneUSLA—br__intemet,pdo (4) Product hider, as attached (signed by Customer) (5) Any other Rider or Addendum, as attached {signed by Customer) For the Service ordered ' hereunder, Cuslonter will receive a credit tram Cogent for the port -related monthly recurring Service charges for the first full calendar month of Sorni provided, however, that Cogent shall invoice Customer and Customer remains liable for the Initial Costs for the Service, (it) all applicable Taxes for the Service, (ill) any charges for Virtual Circuits or Service Options set forth on the Order Form (e.g., IP Address allocation BGP Flouting or Cabling) and (iv) all charges for usage above the committed bandwidlh. Custnmex wi i nor receive any credit for any partial month prier to the first full calendar month of Service. The credit vnh appear on Customer's initial invoice for Service, capitalized terns are used as defined in the GSA. Notwithstanding Section 1.2of the Terms.,. at the end of the Initial Term, the Service ordered hereunder will renew on the some price, forms and conditions for successive mono-to-nxanth Renewal Terms unless and until lermiinaied or amended as provided in the CSA. Signatures By slgning below, Customer affirms and acknowledges that it has read the entire CSA and agrees to be bound by the provisions thereof, For Customer Signature Printed Name Title Date 3flmM o For Cogent Communications, Inc. Signature Printed Name Title Date CIA Layer 3 Order Form V4-39 Cogent Corrmunieatians Confidential Page 20 CREDIT CHECK: Customer Legal Name: D&B Listed: ❑ Yes ❑ No Bank Reference: Bank Transit Number (Canada Only) Bank Phone Number (Canada Only) Trade References (List three): Address (Intl. City, State, Zip) 1) Tax ID #: If Yes, DUNS#: Account No.: We hereby authorize Cogent Communications to obtain any information from the above references. Signature: Phone # Credit line Date: Version: Jan.'03 Network Services Tenns & Conditions North America (Ver.3 - 07/ t6) Confidential 1. SERVICESANDTER\H. L L Pursuant to the CSA, Cogent will provide the Services to Customer for the Service charges. Customer's signature on the Order Fonn constitutes its acknowledgement and agreement to be bound by the CSA. Capitalized tersus are defined at the end of these Temts. 1.2. Each Service's Initial Tenn is indicated on the applicable Order Form and the Initial Term will begin as of the Service Date. Customer will be deemed to have accepted the Service as of the Service Date. At the end of the Initial Tenn, each Service ordered hereunder will renew for successive Renewal Tenns equal in length to the Initial Ternt mrless and until terminated as provided herein. 1.3. Each Service will be provided to the Service Location specified on the OrderFortn only, Any relocation ofa Service shall be an amendment ofsuch Service requiring the consent ofboth Parties. Customer may order additional Services or locations in North America through additional Order Forms, which will be governed by this CSA. Customer's account must be current in order to make changes to Services or order additional Services. 2, SERVICE CHARGES AND MILLING. 2.1. Service charges are on the Order Form and do not include applicalle Taxes unless so indicated. New services, upgrades of existing Services or relocations ofan existing Service will result in additional fees and/or charges. If a prior Service location remains ins€alled after a new Service location is installed, Customer will be responsible for Service charges for both Service locations until terminated as provided for each Service. 2.2. Invoices are sent monthly in advance. Customer agrees to pay all charges and applicable Taxes for the Service withal thirty (30) days of the invoice date without counterclaim, set-off or deduction, A late charge shall be added to Customer's past due balance of the lesser of 1.5% per month or the maximum legal rate. COGENT may change the specifications, Tenns or charges for the Service for any upcoming Renewal Tern by providing Customer at least sixty (60) days advance written notice. Customer agrees that its obligation to pay service charges and Taxes under this CSA shall survive flue termination of llme CSA. 2.3. Customers claiming tax exemption must provide COGENT with a properly executed exemption form. 3. SERVICE USE AND INTERRUPTION. 3.1. Customer's use of COGENT's Services or Network may only be for lawful purposes and must comply with COGENT's AUP. Transmission of any material in violation of any law, regulation or the AUP is strictly prohibited, Access to other networks connected to COGENT's Network must comply with such other networks' rules. Customers whose service location (as set forth on the Order Form) is a COGENT -owned or carrier neutral data center may resell COGENT's Dedicated Internet Access Service ordered in that location but not any other Service offered in Such location. Customers located in any outer service location may not resell their Service, in whole or in part. 3.2. COGENT's obligations and Customer's exclusive remedies for a delayed or failed installation of a Service or the failure of COGENT's Network or any Service are stated in the COGENT SLA. 4. TERILIINA'rION RESTR€CrION OR SUSPENSION. 4.1. Prior to the Service Date, COGENT may terminate the CSA if not approved by COGENT corporate management (including credit check). COGENT also may, restrict, suspend or terminate the CSA, Customer's use of or access 13 any Service, or both, at any time if(n) Customer is in material breach of the CSA (including but not limited to the AUP)and, in COGENT's sole judgment, an immediate restriction or suspension is necessary to protect the COGENT Network or COGENT's ability to provide services to other cD Cogent Communications, Inc. 2016 NETWORK SERVICES TERMS & CONDITIONS NORTH AMERICA customers; or (b) Customer's account is unpaid sixty (60) days after date of invoice; or (c) COGENT facilities at Customer's location are unavailable, (i.e., no connectivity and building access). 4,2, Either Party may terminate the CSA: (a) at the end ofan Initial'remt or at the end ofa Renewal Term by providing the other Party with at least thirty (30) days prior written notice (notices provided during a monthly Renewal Term will not be effective until the end of the next month (Le,, notice received April 20th is effective June 1st); or (b) except as otherwise stated herein, during an Initial Tcrn or Renewal Term if the other Party breaches any material term or condition of this CSA and fails to cure such breach within thirty (30) days after receipt of written notice of the same. All termination notices by Customer must be sent separately for each Service (including terminating out Service location after a Service is switched to a new Service location) and must be sent to terms rr cogentco.com. 4.3. If a Service is terminated prior to the Service Date, Customer shall pay COGENT far all Initial Costs for such Service. If the Service is tern mated after the Service Date, Customer shall pay COGENT (a) for the Service up through the date of lennimation; and (b) except in the case of tersuination by Customer as provided in Section 4.2 above, or by COGENT due to loss Of connectivity or building access at Customer's building(s) under Section 4.l He above, the Initial Coss (unless already paid) and the Termination Charge. Customer acknowledges that because actual damages 10 COGENT caused by early termination ofa Service order are uncertain and would be difficult to determine, the Termination Charge is a reasonable liquidated damage and is not a penalty. Any reconncc(ions of the Service shall result in additional reconnection charges to Customer at COGENT's then -prevailing rates. 4.4. If Customer defaults in an), of its payment obligations under the CSA, Customer agrees to pay COGENT's reasonable expenses, including but ;not limited to legal and collection agency fees, incurred by COGENT in enforcing its rights. 5. DISCLAIMER OF WARRANTY AND LIMITATION OF LIABILITY. 5.1. EXCEPT AS OTHERWISE EXPRESSLY SET FORTH HEREIN OR IN THE SLA, THE SERVICES ARE PROVIDED "AS HS," AND NEITHER COGENT NOR ANY OF €TS PROVIDERS, LICENSORS, OFFICERS, EMPLOYEES, OR,AGENTS MAKES ANY WARRANTY, CONDITION OR GUARANTEE WITH RESPECT TO THE SERVICES OR AS TO TIME RESULTSTO DEOBTAINED FROM THE USE OFTHE SERVICES, UNDER THIS CSA OR OTHERWISE, THE SERVICES ARE PURCHASED WITH KNOWLEDGE OF THIS\VARRANTY LIMITATION. COGENTEXPRESSLY DISCLAIMS ALL OTHER WARRANTIES, CONDITIONS OR GUARANTEES OF ANY KIND, FIT]IFR EXPRESS OR INIPLMD, INCLUDING, BUT NOT LIMITED TO ANY WARRANTIES OR CONDITIONS OF MERCHANTABILITY, NON -INFRINGEMENT, SATISFACTORY QUALITY, AND/OR FITNESS FOR A PARTICULAR PURPOSE, COGENT DOES NOT MONITOR, AND DISCLAIMS ALL LIABILITY AND RESPONSIBILITY FOR, THE CONTENT OF ANY COMMUNICATION TRANSMITTED BY CUSTOMER OR OTHERS, AND DISCLAIMS ALL LIABILITY AND RESPONSIBILITY FOR UNAUTHORIZED USE OR MISUSE OF THE SERVICES, 5.2. Wrafou' PREJUDICE TO OR LIMITING OF COGENT'S RIG}IT TO RECEIVE PAYMENT FOR SERVICES, COGENT's ENTIRE LIABILITY FOR ALL CLAIMS OF WHATEVER NATURE (INCLUDING CLAINIS BASED ON NEGLIGENCE) ARISING OUT OF THIS AGREEMENT AND ALL OTHERS BETWEEN CUSTOMER AND COGENT, AND THE PROVISION BY COGENT OF FACILITIES, TRANSMISSION, DATA, SERVICES OR EQUIPMENT INCLUDING, BUT NOT LIMITED TO, DAMAGE TO REALIPERSONAL PROPERTY, SHALL NOT EXCEED TIME LESSER OF (A) THE AMOUNT PAID BY CUSTOMER FOR THE SERVICE AT ISSUE IN TIIE PRIOR SIX (6) MONTHS TO THE ACTION GIVING RISE ID THE CLAIM, OR (B) ONE HUNDRED THOUSAND DOLLARS (SI00,000.00) IN TOTAL; PROVtDED, HOWEVER, THAT ']'HE FOREGOING LIMITATIONS SHALL NOT APPLY FOR DEATH OR PERSONAL Page 1 of3 Cogent Communications, Inc. 2450 N St., NW, Washington, D.C., 20037 202.295.4200 waw.c�eulco.coin Customer_ Nehvork Services Terms & Conditions North America (Ver.3 - 07116) Confidential INJURY CAUSED BY COGENT, OR FOR ANY OTHER LIABILITY WHICH MAY NOT BE EXCLUDED OR LEMITED UNDER APPLICABLE LAW. 5.3. CUSTOMER RECOGNIZES THAT" 1HF INTERNET CONSISTS OF MULTIPLE PAR ICIPATING NETWORKS THAT ARE SEPARATELY OWNED AND NOT SUBJECT TO COGENT's CONTROL. CUSTOMER AGREES THAT COGENT SHALL NOT BE LIABLE FOR DAMAGES INCURRED OR SUMS PAID WHEN THE SERVICES ARE':'TEAIPORARILY OR PMIANENTLY UNAVAILABLE DUE TO MALFUNCTION OF, OR CESSATION OF, IWERNET SERVICES BY NETWORK(S) OR INTERNEr SERVICE PROVIDERS NOT SUBJECT TO COGENT'S CONTROL, Oft FOR TRANSMISSION ERRORS IN, CORRUPTION OF, OR THE SECURITY OF CUSTOMER INFORMATION CARRIED ON SUCH NETWORKS Olt INTERNIFF SERVICE PROVIDERS. COGENT SHALL HAVE NO LIABILITY HEREUNDER FOR DAMAGES INCURRED OR SUMS PAID DUE TO ANY FAULT OF CUSTOMER OR ANY THIRD PARTY, OR BY ANY HARMFUL COMPONENTS (SUCH AS COMPUTER VIRUSES, WORMS, COMPUTER SABOTAGE, AND `DENIAL OF SERVICE' ATTACKS). COGENT IS NOT LIABLE FOR ANY BREACH OF SECURITY ON THE CUSTOMER'S NETWORK, REGARDLESS OF WHETHER ANY REMEDY PROVIDED IN THIS CSA FAILS OF ITS ESSENTIAL PURPOSE. WITHOUT LIMITING THE FOREGOING, CUSTOMER AGREES THAT IT WILL NOT HOLD COGENT RESPONSIBLE FOR (A) THIRD PARTY CLAL\IS AGAINST CUSTOMER FOR DAMAGES, (B) LOSS OF OR DAMAGE TO CUSTOMER'S RECORDS OR DATA OR THOSE OF ANY THIRD PARTY, OR (C) LOSS OR DAMAGE 'to CUSTOMER ASSOCIATED WITH THE INOPERABILITY OF CUSTOMER'S EQUIPNIENT OR APPLICATIONS WITH ANY COMPONENT OF THE SERVICES OR THE COGENT NETWORK. CUSTOMER AGREES TO MAKE ALL CLAIMS RELATED TO THE SERVICES DIRECTLY AGAINST COGENT, AND WAIVES ANY RIGHT TO RECOVER DAMAGES (DIRECTLY OR BY INDEMNITY) RELATED TO THE SERVICES 13Y CLAIMING AGAINST OR THROUGH A "THIRD PARTY TO THIS CSA. 5.4. NEITHER COGENT NOR ANYONE ELSE INVOLVED IN CREATING, PRODUCING, DELIVERING (INCLUDING SUSPENDING OR DISCONTINUING SERVICES) OR SUPPORTING THE SERVICES SHALL BE LIABLE TO CUSTOMER, ANY REPRESENTATIVE, OR ANY THIRD PARTY FOR ANY INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE OR CONSEQUENTIAL DAMAGES ARISING OU'F OF THE.. SERVICES OR INABILITY TO USE THE SERVICES, INCLUDING, WITHOUT MUTATION, LOST RFVENUE, LOST PROFITS, LOSS OF TECHNOLOGY, RIGHTS OR SERVICES, EVEN W ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, WHETHER UNDER THEORY OF CONTRACT OR TORT (INCLUDING NEGLIGENCE, STRICT LIABILITY OR OTHERWISE). 5.5. NO ACT[ON OR PROCEE➢ING AGAINST COG 'NT' M.AY BE CO\L\IENCED BY THE CUSTOMER MORE THAN ONE (1) YEAR AFTER TIM LAST DAY ON WHICH THE SERVICE WHICH IS. THE BASIS FOR THE ACTION IS RENDERED, AND CUSI-OAIER ACKNOWLEDGES THAT THIS LINUTATION CONSTITUTES AN EXPRESS WAIVER OF ANY RIGHTS UNDER ANY APPLICABLE STATUTE OF LIMITATIONS WHICH WOULD OTHERWISE AFFORD ADDITIONAL T ME FOR SUCH A CLAIM, 6, INDEMNITY, 6.1. Customer will rodent fy, defend and hold haruilcss COGENT and its directors, officers, employees, alfiliales, and its agents and subcontractors from and against any claims, suits, actions, and proceedings from any and all Iltird parties, and for payment orally Losses, to the extent such Losses arise (a) as a result of vielatiolt of the AUP or any applicable law or regulation; (b) from any and all claims by any of CBSIonner's customers or other third Party end users in connection With a Service (including, Without limitation, any claims regarding content Iransmitted using a Service or violation o€data protec€ion legislation), regardless ofthe form of action, whether in contract, tort, Warranty, or strict liability; provided, however, that Customer Will have no obligation to indemnify and defend COGENT against claims For damages for bodily injury or death caused by COGENT's gross negligence or willful misconduct; or (c) From claims orcopyright infringement and all manner of intellectual property claims, defamation claims, claims of publication of obscene, indecenl, offensive, racist, unreasonably violent, threatening, intimidating or harassing material, and cfai€ns of infringement of data protection legislation, to the extent such Losses are based upolt (i) the content of any information transmitted by Customer or by any of Cusio€ner's customers or authorized end users, (ii) the use and/or publication ofany and C Cogent Communicalions, Inc. 2016 all COMIDlnlicalions or information transmitted by Customer or by any of C €rStOnICT'S customers Of authorized end users, or (iii) the use of Service(s) by Customer in any planner inconsistent with [lie terms of this CSA, including without limitation tire AUP. 7. ADDITIONAL PROVISIONS, 7.1. Except as to payment obligations of Customer, neither Pally shall have any claim or right against the other Party for any failure of performance due to Force tvlajeure. 7.2. Neither Party is the agent or legal represeRtalive of the other Party, and this CSA does not create a partnership, joint venture or fiduciary relationship between COGENT and Customer. Neither Party shall have any authority to agree for or bind the Other Party in any manner whatsoever. This CSA coltfens no rights, remed€cs, or claims of any kind upon ruty third party, inchtding, without limitation, Customer's subscribers or end -users. 7.3. This CSA for Service is made pursuant to and shall be construed and enforced in accordance with the laws ofthe District ofColumbig without regard to its choice of(aw principles. Any action arising out ofor related to this CSA shall be Brought in the District or federal courts located in the District of Columbia, and Customer consents to the jurisdiction and venue of such courts. 7.4. Notices, if required, must be sent in writing by e-mail, courier or first class mail (postage prepaid) to the appropriate contact point listed on the Order Form, and arc considered made when received at that address; provided, that termination notices to COGENT must be sent in accordance with Section 4.2 above. ]n the event of an emergency, COGENT may only be able to provide verbal notice first; such verbal notice will be followed Try Written notice. Customer is responsihle for accuracy of its information on (he Order form, including points of contact. 7.5. Customer may not assign this CSA without COGENT's prior written consent, which consent shall not unreasonably be withheld. Any such assignment nrithout COGENT's prior written consent shall be void. 7.6. Without limiting any other obligation which expressly survives the expiration or prior termination ofthe Fenn ofthe CSA, the expire€ion or prior termination of the term of the CSA shall relieve both Parties of any farther obligations hereunder, except with respect to the Sections 2, 3 4.3. 4.4 and 5 through 7, which shall survive any expiration or termination of these Terns, 7.7. If (but only iO required by COGENT's or Customer's agreestent with Customer's Landlord: (a) any cessation or interruption in COGENT's Service does not constitute a default or constructive eviction by Customer's Landlord, and (b) Customer agrees to Waive and release Landlord and its related parties from any liability in connection Willi any damages whatsoever incurred by Customer, including lost revenues, which arise, or are alleged to arise, out of any interruption of or defect in the COGENT Service, REGARDLESS OF WHETHER SUCH INTERRUPTION Olt DEFECT IS CAUSED BY THE ORDINARY NEGLIGENCE (BUT NOT THE GROSS NEGLIGENCE Olt WILLFUL MISCO, rDDCr) of A RELEASED PARTY. 7.8. The COGENT Network is owned by COGENT, or its licensors, and is protected by copyright and other intellectual property laws. Customer agrees that title to and Ownership ofthe Services, in any forum, shall at all tiu3es and in any event be held exclusively by COGENT. Customer shall be entitled to only such rights with respect to the Services as are specifically granted herein. 7.9. This CSA and such other written agreements, documents and insiru€rents as may be executed in connection herewith are tire rural, entire and complete agreement between Customer and COGENT and supersedeall prior and con(mi pora€reous negotiations and oral representations and agreements, all of Which are merged and integ€ated into this CSA. No lactase order or similar docunleut provided by Customer to COGENT shall be of any force and effect. Amendments to the CSA or any Service shalt be in writing and signed by both Parties. 7.10, This CSA and any Addendum thereto may be executed in one or more counterparts all of which taken together shall constitute one and the Same instrunlen t. Page 2 of 3 Cogent Communications, Inc. 2450 N SI., NW, Washinphon, D.C., 20037 202.295A200 W�wAy&.g nico.com Customer: Network Services Terms & Conditions North America (Ver.3 - 07116) 0 Cogent Communications, Inc. 2016 Confidential DEFtNrri NS AUP COGENT's Acceptable Use Policy as posted by COGENT at rlww.cogentco,conl. COGENT reserves the right to amend its AUP at any time, effective upon posting on the COGENT website. COGENT Cogent Communications, Inc. or its subsidiaries or affiliates. COGENT The telecommunications network and network components owned, operated or controlled by COGENT, including Network COGENT's fiber backbone, metropolitan fiber networks, any equipment connected to such fiber, and the software, data and know-how used by COGENT to provide the Services. Where COGENT services a building through its own facilities, the COGENT Network includes those facilities. The COGENT Network does not include customer premises equipment, customer -ordered telephony circuits, and any networks or network equipment not operated and controlled by COGENT. Cnstomer Customer identified in the attached Order Form. CS The entire Customer Subscriber Agreement between COGENT and Customer for provision of the Service, consisting of, in order of priori€y, the Order Foil, any addendum between the Parties, the Terms, the applicable product rider and the SLA. Equipment Customer's equipment, if any. Force Majeure Causes beyond a Party's control, including but not limited to: acts of Gad; tire; explosion; vandalism; cable cut; storm; flood or other similar occurrences, any law, order, regulation, direction, action or request of ally gOvenlntellt, including federal, state, provincial, municipal and local governments claiming jurisdiction over a Party or the Service, or of any department, agency, commission, bureau, corporation, or other instrumentality of any such government, or of any civil or military authorily; national emergencies; unavailability of materials orrights-of-way; insurrections; riots, tenmist acts or wars (declare(/undeclated); or strikes, lock -onus, work stoppages, or other lobo€ difficulties, supplier futures, shortages, breaches or delays. Initial Costs Greater of (a) installation fees (if not paid); or (b) all third -party costs and charges incurred by or charged to COGENT on behalf of Customer for the Service, including but not limited to local loop fees, cross -connect charges, and wiring fees. Initial Term Initial length of term for the Services as indicated on the Order Fonn, Landlord Customer's landlord, building owner or propertyrItelecom manager, Losses Costs, fees, liabilities, losses, damages or penalties, including reasonable legal fees. Order Form Cover form to which these Terms are attached, identifying the specific Service(s) to be delivered. . Parly of Parties COGENT and/or Customer. Renewal Term Subsequent length of terns for the Services after completion of the Initial Terns, sell,€ce(s) Bandwidth services provided by COGENT under the Custamer Subscriber Agreement. Service Date Earlier of date oil which (a) COGENT notifies Customer that the Service is available for Customer's use at either the COGENT -defined demarcation point or last -available test point; or (b) Customer first uses the Service or the COGENT Network. The Requested Service Date on the Order Form is the carlicstdate on which Customer is willing to accept COGENT Service. COGENT does not guarantee that the Service will be installed on the Requested Service Date, SLA The Service Level Agreement as posted by COGENT at nww.cooentco.com for Customer's Service(s). COGENT reserves the right to arlend the SLA at any time, effective upon posting on the COGENT website. Space Rented rack space From COGENT, if any. Tax or Taxes All taxes arising in any jurisdiction, including without limitation all: sales, use, excise, gross receipts, value added, access, bypass, franchise, telecommunications, property (for co -location customers), consumption, or other taxes, fees, duties, charges or surcharges (however designated) which are imposed on or based oil the provision, sale or use of the Service(s), including such taxes imposed directly on COGENT or for which COGENT is permitted to invoice Customer in connection with COGENT's perfonnance tinder the CSA. Taxes do not include COGENT's income taxes. Termination Single payment equal to the total remaining dollar value of the applicable Service order through the Initial Tenn or Renewal Charge Term, as applicable. Terms Terms and conditions that apply to tile Services COGENT provides to Customer. Page 3 of 3 Cogent Communications, Inc. 2450 N Sl., NW, Washington, D.C., 20037 202.295.4200 www.covenico.conl Cuslourer Product Rider— Dedicated Internet Access (Ver. I-10) Confidential "rV' Cogent Communications. 2016 PRODUCT RIDER - cogent DEDICATED INTERNE ACCESS GLOBAL This product rider (Rider) amends the CSA entered into between Customer and COGENT for the Services specified therein. Unless otherwise defined herein, capitalized or defined terms in the CSA have the same meaning in this Rider. in the event of a conflict between forms, the following will be the order ofpriority: First, the Order Form; Second, any Addendum entered into by the Parties; Third, tile Terns: Fourth, the SLA; and Fifth, this Rider. 1. Service aml Options Within the scope of the Dedicated Internet Access Service, COGENT transmits W-packets between the COGENT Network and associated networks of its Customers as well as to and from the global Internet using COGENT's settlement -free peering agreements with other networks. Subject to their availability, Customer may select one or more options associated with the Service such as listed in the Order Form, in which case Customer agrees to pay the related fees such as indicated in the Order Fonn; 1P Address AlloaNimr: COGENT will allocate an 1Pv4129 and IPv611l2 free of charge to Dedicated Internet Access customers as part of each port order. If Customer desires a larger IP address space allocation, Customer shall submit an application to COGENT for the larger allocation, using COGENT's "IP Questionnaire" form. If COGENT approves the application, Customer will be required to place an order for the larger IP allocation. Each larger allocation for IPv4 address space will be subject to an additional Monthly Fee. Larger allocations for IPv6 address space will be free of el€arge. COGENT stakes no guarantees that any subsequent allocations will be contiguous to any of Customer's existing allocations, iP address space allocations are subject to the AUP and will be terminated and reclaimed when Customer's Dedicated Internet Access Services with COGENT are terminated. BGP roufpr : Customer may connect to COGENT's network using the BOP protocol (Border Gateway Protocol). Customer will be required to place an order and a BGP session will be established with Customer's own assigned ASN (the Primary ASN). IfCustomer wishes to connect with multiple BGP sessions over a single port (or LAG bundle) with the Primary ASN and ASNs from third parties represented by Customer (the Secondary ASNs), then Customer will be required to provide COGENT with a Letter of Authorization ("LOA") issued by the third parties having registered the Secondary ASNs in order to activate such Service, and all interactions, being during provisioning or operations, related to BGP-sessions set up between COGENT's network and Secondary ASNs will be handled exclusively between COGENT and Customer. The tact that a BGP session is being set up between COGENT and other parties represented by Customer does not constitute a contractual relationship between COGENT and the other parties, this interaction is ruled by the contractual relationship established between COGENT and the Customer, COGENT will charge an additional Monthly Fee for each ASN connected, including the Primary ASN. Sruric ruifftE i €ILAN: Customers connecting to COGENT's network with static routing (i.e., non-BGP) may require a VLAN (Virtual Local Area Network) structured port. Customer must place an order to have a VLAN configured on Customer's port, in order to support static routing of Customer's own assigned IP address space (the Primary [Ps). If Customer wishes to connect with Primary IPs and tP addresses from third parties represented by Customer (the Secondary [Ps), over one or more VLANs on a single port, then Customer will be required to provide COGENT with a Letter ofAuthorizationr ("L.OA") issued by the third parties having registered the Secondary It's in order to activate such Service, and al I interactions, being during provisioning or operations, related to static routing (and, as the case may be, VLANs) set up between COGENT's network and Secondary IPs will be handled exclusively between COGENT and Customer. The fact that static routing is (and, as the case may be, VLANs are) being set up between COGENT and other parties represented by Customer does not constitute a contractual relationship between COGENT and the other parties, this interaction is ruled by the contractual relationship established between COGENT and the Customer. Each VLAN will receive the same 1P address space allocation as a port order at the same location. COGENT will charge an additional Monthly Fee for each VLAN connected. Lnrkj=pte;grrlinu /LAGI: In certain Service Locations, Customer may elect to aggregate multiple 10 Gigabit Ethernet Services in such Service Location into a Link Aggregation bundle (a "LAG -bundle"). Under such option, COGENT will configure the LAG -bundle in such a way that, in case ofan outage of some (but not all) Services involved in the LAG -bundle, unaffected Services in such LAG -bundle will continue to pass traffic. Link Aggregation is the technical combination ofporls and is independent from billing options: COGENT will bit] burstabie Services involved in a LAG -bundle independently from each other, unless Customer elects to combine them rising the "Summed Burst Billing" or "Aggregate Burst Billing" options described in section 2 below. Equipntertr: COGENT may, at its sole discretion and ifavailable, provide equipment for certain Services. The fees for such equipment as agreed in the Order Form will be added to Customer's invoice. COGENT does not guarantee and is not responsible for any specific type ofequipnrent, or any equipment at all, to be made available to Customer, and such equipment will belong to Customer upon receipt. Customer will provide its own technical support to install, maintain, and integrate equipment. COGENT will not provide on -site technical support. Customer will be responsible for applicable replacement costs if the equipment is subject to any' damage, unauthorized alteratio€rlmodificatiotrlrepair, abnonnai use, misuse, neglect, abuse, accident, improper installation, or other acts caused by Customer, its employees, contractors, or any other person. Such action or inaction may void any manufacturer warranties. Customer fruther agrees to indemnify and hold harmless COGENT for any third party claim based on Customer's unauthorized alteration or modification of the equipment. COGENT is not responsible for Service disruptions caused by any request by Customer to relocate equipment. L:ypedire Deliverv: COGENT's installation guarantee is strictly limited to the installation guarantee stated in the SLA. However, Customer may request in the Order Fonnn an expedited delivery for his Service. COGENT will use commercially reasonable efforts to accommodate Customer's request; provided, however, that COGENT does not guarantee that any such request will be fulfilled (and any such guarantees given either orally or in writing are hereby disclaimed) nor does COGENT guarantee that the Service will be delivered on a specific date, such as the Requested Service Date indicated on the Order Form. Page 1 0173 Cogent Communications wsnnw.cogentco.coru See Order Form or web site for fill] contact details. Product Rider —Dedicated Internet Access (Ver, 1-10) Confidential 2, Burstable Service Co Cogent Communications. 2016 If Customer is purchasing COGENT's burslable Servicc, Customer will have a minimum bandwidth commitment assigned for a given port (the Bandwidth Commitment or Committed Data Rate, "CDR"). The Bandwidth Commilrncol is agreed upon in the Order Fonn and is the minimum arnounf of bandwidth that will be charged to Customer each month at the base Service price, even it'not fully used by Ctr510€11er during a given:month. Customer may burst up to the maximum bandwidth that can be carried on n given poll, e.g. 1,000 Mbps for a Gig -Ethernet port, subject to availability ofbandwidth within the COGENT network. If Customer exceeds the Bandwidth Commitment on any burstable port in any given calendar month, Customer agrees to pay the additional per Mbps charge for excess bandwidth usage over time Bandwidth Commitment as indicated in the Order Form. Such excess bandwidth usage is calculated by COGENT as €le difference between total bandwidtl€ usage and Bandwidth Cominitrnernt, where total bandcvidth usage is deternined by collecting bandwidth usage samples every 5 minutes throughout the month for each port (a sample is based upon the average usage across the 5-minute segment) anal determining the appropriate percentile (901h or 95th) of usage as indicated in the order Fonn . Only one sample is captured for each 5-minute period, even though two samples are collected - one for inbound utilization and one for outbound utilization. The higher of the two samples is retained. For partial months, the total € umber of samples for the calendar mouth is used; for samples where there is no usage, 0 is the recognized value. For exampic, in a 30-day billing period, 8,640 samples are collected (12 sarnplesihour x 24 Imours/day x 30 days) and listed from highest to lowest. 11) case of 95th percentile billing, the highest 5%or 432 samples are discarded (representing the top 5% of usage levels). The highest remaining sample (sample 433 in this example) is used to determine total bandwidth usage. For 9011m percentile billing, the highest 10%or 864 samples are discarded (representing the top 10% of usage levels). "file highest remaining sample (sample 865 in this example) is used to determine total bandwidth usage. Under the "Sunnned Burst Billing" option available in conjunction with 90th percentile burst billing, COGENT calculates excess usage as the difference between the suer or total bandwidth usage and the sun: of Bandwidth Commitment across all summed ports. For example, if Summed Burst Billing is applied over three ports with a Bandwidth Commitment of 200 Mbps on each (i.e., a total Bandwidth Commitment of600 Mbps) and the individual 90th percentile total bandwidth usage amounts were 70 Mbps, 150 Mbps and 500 Mbps, [Ike excess bandwidth usage would be 120 Mhps (70 + 150 + 500 - 600). Under the "Aggregate Burst Billing" option available in conjunction with 95€h percentile burst billing, excess bandwidth usage is calculated by COGENT as Ille difference between total aggregated bandwidth usage and the summed Bandwidth Commitment across all aggregated ports, where total aggregated bandwidth usage is determined by adding usage samples every 5 minutes across all aggregated ports, In the event the aggregated ports are located in more than one (line zone, usage samples taken at the same local time will be added together, e.g., usage samples taken at 9 p.m. local time in London will be added to usage samples taken at 9 p.m. local time in New York City, For example, if there are three aggregated ports, every 5 minutes three inhound samples and three outbound samples are collected, added all to one bandwidth usage value per direction, and the higher of the two values is retained. In a 30-day billing period, the final 8,640 retained bandwidth usage values reflect the aggregated usage across all ports. These values are listed from highest to lowest. The highest 5% or 432 values are discarded (representing the top 5% of usage levels). The highest remaining value (value 433 in this example) is used to detemnine total aggregated bandwidth usage. Under both ' :Sunnned Burst Billing" and "Aggregate Burst Billing" options, a Master Service is defined in the Order Form, and all other Services involved in a Summed or Aggregate calculation are listed. Excess handwid(h usage (burst usage) calculated across the listed polls will be billed on the Master Service account. Tine relevant datrt (additional per Mbps charge for excess bandwidth usage and Billing Currency) pertaining to the Master Service will be used for calculating excess bandwidth usage fees across Master Service and all other involved Services, For example, if a customer orders ports in the UK, US, and Canada and defines the US port as the Master, all excess bandwidth usage will be billed ore the US invoice in US dollars, at Ilene burst fee indicated on the US port Dder form. These billing options are independent from the Link Asrnrevalion (LAG) option: COGENT will not combine Services involved in "Summed Burst Billing" or "Aggregate Burst Billing" into a LAG -bundle, unless Customer elects to combine then) using line Link Aggregation (LAG) option described in section I above. Furthermore, ifCustomer wishes that COGENT bills Services part Dfa LAG -bundle according to (1€e "Sunnned Burst Billing" or "Aggregate Burst Belling" option, then Customer must elect these options for such Services, in addition to the election of the LAG Option- 3. Customer's Dirties to Coo€lerate Customer or its representative must cooperate with COGENT in the installation process, which includes accurate completion of an Order Form containing detailed demarcation information and other onsite contact listings, and of the necessary technical questionnaires (if Questionnaire, BGP Questionnaire, etc.) as provided by COGENT, Customer or its representative )must be plrysically present at the time of installation. During installation and at all other times, the Customer will allow access and if necessa€y provide escort, for COGENT's or its representatives' necessary personnel to perform the installation and maintenance ofthe Service, to the designated building's phone closet(s) or telecommunications room or to the Customers premises for the purposes of survey, installation, operations and maintenance of the Service, after prior arrangement between the parties. Customer's failure to cooperate shall release COGENT Dorn its obligations pertaining to the Installation Guarantee included in the SLA bill shall not suspend the Service Date or billing slart date, Inthe event of technical problems relating to the Service, the Customer will ensure that COGENT's or ifs representatives' service engineers have unrestricted access to the designated building's phone closet(s) or telecommunications room or to the customer premises equipment. Customer's failure to provide access shall release COGENT from its obligations pertaining to the Network Availability part Ofthe SLA. 4. Demarcation Point Within cr COGEN'T data confer: if Service delivery takes place within a COGENT data center, COGENT will deliver the service at a demarcation point situated on the COGENT equipment. COGENT will provide, maintain and operate the necessary wiring ("Cross -Connect") for Crr5(0mCr to connect to COGENT's service at the indicated demarcation point. COGENT will provide such Cross -Connect for time Cabling fee set forth on the Order Form. Wilhin a Third parry dater center: If Service delivery takes place within a third party data center (i,c, that is not owned and/or operated by COGENT), COGENT will deliver the Service at a demarcation point situated on the COGENT egUiprnern. Unless otherwise agreed, Customer will at its own cost provide, maintain and Operate the necessary wiring ("Cross -Connect') to connect to COGENT's service at tire indicate[[ demareation point. If Customer and COGENT agree that COGENT shall provide such Cross -Connect, then COGENT will provide such Crass -Corned against Cabling fees such as indicated on the Order Form and the Page 2 of 3 Cogent Communications 1vwly.Co2en1co.conl See Order Fonn or web site for full contact details. Product Rider - Dedicated hilernO Access (Ver. 1 -10) Confidential (0 Cogent Communications. 2016 Service demarcation point will remain on the COGENT equipirleirt. COGENT may increase Crass-Comicet fees at any time totheextentCOGENT'sthird party costs directly associated with providing Ilse service (including, but not finifted to, third party data center rates)are increased by the third paTly. Wifhin em On -Net c.-mywreite huilAhig: If Service delivery takes place within an On -Net corporate building, COGENT will deliver the Service at a demarcation point situated on the COGENT equipment within the Customer's Kuilo, COGENT will provide, maintain and operate the necessary wiring ("Riser") between the building entry and the indicated demarcation point. At an (YL-Aler Customer Localion: OffNel Services are being delivered to file Cuslorner"Location indicated in the Order Fount through a third -party local loop to be provisioned by COGENT oil behalf ofCustomer. As such, the Customer and COGENT agree that the charges so forth in the Order Form for sneh Service assumes that such Service will be terminated at a fire-esiablished demarcation point or Illinilnuin point of entry (MPOE) in tire building housing the Customer Location, is deteinnnect by the local access provider. COGENT may charge Customer additional nonrecurrint; charges not otherwke set forth herein for such Service where the Customer or local access provider determines that it is necessary to extend the demarcation point orMPOE through the provision of additional infirastructurv, cabling, electronics or other inaterials necessary to reach the Cumorner Location, it shall be the Customer's responsibility to allow access to the facility for the local access provider, as well as to facilitate or coordinate with the property owner at the Customer Location, all additional space and electricity determined by the local access provider to be necessary to provide the Service. COGEN'Twill notify Customer ofany additional non-reurring charges, ifany, as soon as practicable after COGENT is notified by the local access provider ofthe innotint ol'such charges. From time to finic, COGENT may provide, and Ctisloincr may accept, budgetary estimates for the extension of (lie denuircation point to the COSWInUT LOCU6011 1101ig with the initial Order Forni. These estimated costs may be based oil cerlant known costs or typical installations that do not require extraordinary efforts by the provider to extend the scrvicc. Ili the event actual costs exceed the budgetary estimate, Cogent will notify the Customer is ou0bred above. In addition, the charges and the Term set forth in the Cider Form for the Service aSSUITICS that SUCII Service can be provisioned by COGENT through the local access provider selected by COGENT (and/Or Customer) fir the stated Term. Ili the even[ COGENT is unable to provision such Service through the selected local access provider or the selected local access provider requires a higher cost or longer Service'rerm than that set forth in the Order Fora, COGENT reserves the right, regardless of wliciller COGENT has accepted the Cider loran, to suspend provisioning of the Service hereunder and notify Customer in writing of any additional non -recurring; charges, moriffily recurring charges and/or Term that Illay apply, or to cancel the Service set forth our the Order Form. Upon receipt of such notice, Customet will have five (5) business days to accept or reject such changes. It'Cuslornerdoes not respond to COGENT within the five (5) busirress day period, such changes will be deemed rejected by Customer. In time event Customer rejects the changes (whether afflimatively or through the expiration of the five (5) business (lay period) or if CCGrN'I' elects to cancel the Service ordered herein, the affected Service will be cancelled without cancellation or termination liability ofeillierparty. COGENT may also increase Off -Net Service fees at any time to the extent COGENT's third pauly costs directly associated with providing such Off -Net Services (including, but not firinted to, loop provider or third party data center rates) are increased by the third party. CUSTOMER: By: Title: Date: Accepted and agreed to: COGENTCOMMUNICATIONS Hy: . .. ............ Title: Date: Page 3 of Cogent Communications Anvwv.cor�cmco.corrr See Order Fonn or web site for full contact details. qiOARNHIS OF5QUI1-It�INDW John' Martinez Facilities & Grounds xoso Higli St. Soiftli Bend, IN 466oi 574-235-7645 jiiiartine a soutlavericliii,gov 1/23/2618 ©e.a.r Board of Public Works, We would like to submit the following request for the installation of a centralized wireless controller to the wireless system In the Morris Center. Our goal Is to provide a phased approach to upgrading the network and wireless coverage In. the backstage, ticketing, and Ballroom areas 'of the Morris Center. Additionally, this will also allow a Staff/Performer Internet connection that is isolated from the Guest network,. unrestricted to the Internet, in stage, backstage, and basement areas, This project has been overseen by Michael Sniadecki of Department of Innovation & Technology and will be funded from the Morris Capital Improvement Fund. We ask the Board for a favorable consideration on this submittal. Warm regards, John Martine, ��" �'� �Cr)? �t SCrv►G°� rn L�'�B r f Ort�'a1.1 BOARD OF PUBLIC WORKS AGENDA ITEM REVIEW RE, QUEST FORM Department VPA & IT Name John Martinez/Mike Sniadecki Infrastructure BPW Date 02/13/18 Phone Extension 7645/6004 Required Prior to Submittal to Board Legal Attorney Name Clara McDaniels Controller Controller review is required for all Contracts $5,000.00 or more and greater than one year in length per the City Purchasing Policy Purchasing E Check the Appre` priate Item Type — Required forAfl Submissions 49" ,Agreement n Contract El Proposal El Addendum Professional Services Resolution F1 Bid Opening Award El Req. to Advertise El Title Sheet n Quote Opening F-1 Quote, Award F-1 Change Order No. n C/O & PCA No. E] PCA 0 Ease/Encroach. El Traffic Control F] Other: Required Information Company or Vendor Name Cogent Communications, Inc. New Vendor M Yes 0 No F-1 If Yes, Approved by Purchasing MBEANBE Contractor F-1 MBE R WBE MBE/BE Contractor Requested El No R Yes Name ofCompany _ Project Name Morris Wireless Improvements Project Number Funding Source IT Operating Account No. 279-0672-415-36-04 Amount $500 one-time setup fee & $202 per monthly fee Terms of Contract 36 months Purpose/Description ISP provider- Increased Bandwidth/Coverage/Capabilities Amount of H Required Contractor's Certification Form Attached (Non - Collusion, No n-Discri m i nation, Non -Debarment, E-Verifv, Iran, etc. Increase $ Decrease $ Previous Amount Current Percent of Change: New Amount Total Percent of Change: Copy Original N El M F Dispersal After Approval Mike Sniadecki John Martinez Daniel O'Connor