San Clemente City Council
December 10, 2024

Cox Metro-Ethernet and CloudPort
Service Level Agreement

1. Scope. This Service Level Agreement (“SLA”) is incorporated into the Commercial Services Agreement or Master Services Agreement (“Agreement”) by and between Cox and the Customer, each as defined in the Agreement. The performance standards and service levels set forth in this SLA are Cox’s objectives with respect to the Cox Layer 2 VPN services which is inclusive of Cox Metro-Ethernet Service and Cox CloudPort Service (collectively, the “Layer 2 VPN Services”).

2. Layer 2 VPN Services Description.
(a) Layer 2 VPN Service Elements: The Layer 2 VPN Services consists of a port (Metro-Ethernet Port or CloudPort respective to each Service’s particular branding) (“Port”), Ethernet Virtual Circuit (“EVC”), and a User to Network Interface (“UNI”). A UNI may be a Cox provided physical interface or a logical point of demarcation as defined by Cox. (b) Network Segments: For purposes of SLA, there are three defined network segments for the Layer 2 VPN Services:
(i) Core Network: A provider edge router to provider edge router segment whose metrics consist of all EVCs within a given a geographic boundary for a multipoint service topology. Core network segment metrics for point to point service topologies are circuit specific measurements. Geographic boundaries include metro, state, regional and national as shown in Table 2.0 in Section 7.
(ii) Access to Core: A customer edge UNI to provider edge Core Network segment, commonly referred to as a “local loop”. Access to Core segment metrics are circuit specific measurements. (iii) Type-II: Any portion of the Layer 2 VPN Services or circuits obtained by Cox from third party carriers are not subject to any Service Quality (as defined below) or any other SLA terms. (c) Service Topology: Services are configured in either a multipoint (ELAN) or a point to point (ELINE) configuration. (d) “End to End” SLA: For purposes of “End to End” SLA Service calculation for Metro-Ethernet Services, the concatenation of access to core, core network and access to core can be used. Specifically:
• “End to End” Delay = Access to core Delay + Core Delay + Access to core Delay • “End to End” DDR = Access to core DDR * Core DDR * Access to core DDR • “End to End” Jitter = Higher value Jitter metric for either Access to core Jitter or Core Jitter For purposes of SLA Service calculation for CloudPort Service, the concatenation of access to core and core network can be used. Specifically:

• “End to End” Delay = Access to core Delay + Core Delay • “End to End” DDR = Access to core DDR * Core DDR
• “End to End” Jitter = Higher value Jitter metric for either Access to core Jitter or Core Jitter

3. Layer 2 VPN Service Availability. “Layer 2 VPN Service Availability” is defined by Cox as the ability to send or receive Ethernet Service Frames via a given Port inclusive of the local loop and UNI. Cox’s objective is to make the Port available for Customer’s as set forth in Table 2.0 in Section 7 with respect to the Cox Network Core and Access to the Core. This parameter is calculated by dividing the number of minutes a Port is available for Customer’s use by the total number of minutes in any calendar month and multiplying by one hundred (100). Unavailability of the Layer 2 VPN Services due to the reasons or causes set forth in Section 11 of this SLA shall not be included in determining whether Cox has met the applicable performance standard for Layer 2 VPN Service Availability objective. For example, if a Port experiences an outage for one (1) day due to a Force Majeure event, and otherwise experiences no other outage or Service Interruption during the applicable month, Cox will be deemed to have met the Layer 2 VPN Service Availability performance objective and no Service Credit(s) (as defined below) will be provided.

4. Layer 2 VPN Service Interruption. A “Layer 2 VPN Service Interruption” is an interruption of a Port (“Affected Port”) that results in the total disruption of the Layer 2 VPN Services delivered over the Affected Port beyond the Layer 2 VPN Service Availability level. Any Layer 2 VPN Service Interruption, outage, degradation of Layer 2 VPN Service, or failure to meet any objective stated in this SLA is not a default or breach under the Agreement, but may entitle Customer to a Service Credit (as defined below) for a qualifying Layer 509
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2 VPN Service Interruption. A Layer 2 VPN Service Interruption period begins when Customer makes a Trouble Report (as defined below) to Cox's Network Operations Center (“NOC”) under the methods and procedures set forth in Section 9 of this SLA and ends when Cox restores the Layer 2 VPN Services to Customer.

5. Service Interruption Credits. The available “Service Credit” for a Layer 2 VPN Service Interruption is identified in the table below as a percentage of the monthly recurring charge (“MRC”) associated with the Affected Port experiencing a qualifying Layer 2 VPN Service Interruption. Service Credits are not cumulative (e.g. if a qualifying Layer 2 VPN Service Interruption lasted 20 hours, Customer will receive a Service Credit equal to 20% of the MRC for the portion of the Layer 2 VPN Services experiencing a Layer 2 VPN Service Interruption, but Customer does not also receive a separate Service Credit for the “≥30 min. to <4 hours”, “≥ 4 hours to < 8 hours” and “≥ 8 hours to < 16 hours” timeframes identified in the table below). The amount of the Service Credit shall be as follows:

Table 1.0
Cox – Layer 2 VPN Services
Layer 2 VPN Services
Interruption Length
Credit of the MRC for the
portion of Affected Port
experiencing a Layer 2 VPN
Service Interruption
≥ 30 min. to < 4 hours 5% of MRC
≥ 4 hours to < 8 hours 10% of MRC
≥ 8 hours to < 16 hours 15% of MRC
≥ 16 hours to < 24 hours 20% of MRC
≥ 24 hours 25% of MRC

6. Chronic Outage. If three (3) or more separate times during a thirty (30) consecutive day period, an Affected Port experiences a Layer 2 VPN Service Interruption for a period greater than eight (8) consecutive hours, (“Chronic Outage”), subject to Section 11 below, Customer may terminate the Affected Port(s) without charge or payment of any termination charges otherwise provided in the Agreement, provided Customer complies with the notification process described in this Section 6. Within thirty (30) days of the occurrence of the third Chronic Outage, Customer shall notify Cox in writing of its election to terminate the Affected Port(s) and the Affected Port(s) shall be terminated upon Cox's receipt of such notice. If Customer fails to notify Cox within thirty (30) days of the third Chronic Outage, of its intent to terminate the Affected Port(s), then Customer shall be deemed to have waived its right to terminate the Affected Port(s)under this Section 6 until the occurrence of a subsequent Chronic Outage, if any. Upon termination under this Section 6, neither party shall have any further rights, obligations, or liabilities to the other party with respect to such terminated Affected Port(s), except those accrued through the termination date, and that expressly survive termination of this Agreement.

7. Service Quality. “Service Quality” is defined as the measurement of network performance characteristics which include, Latency, Data Delivery Ratio and Jitter (each as defined below for both the Network Core and Access to the Core). Service Quality is influenced by both the distance classification of the offering and the Class of Service (“CoS”) provisioned and are measured for a given network segment. Measurement is only included for “in-profile” (conform to the performance attributes of the Layer 2 VPN Services) at both the ingress and egress UNIs of any given EVC. All “Service Quality” metrics in this Section 7 are objectives only.

Service Quality Measurement Network Segments:
(a) Core Network Measurements:
(i) “Core Latency”, as it relates to the Layer 2 VPN Services, is a measure of Cox Network Core delay within a given network segment, region or distance band, as the average round trip interval of time it takes during the applicable calendar month for Ethernet Service Frame to transverse between all selected pairs of Cox network nodes within a given Network Core region. The Core Latency objective designated by CoS traffic is set forth in Table 2.0, averaged on a monthly basis.
(ii) Core Data Delivery Ratio (“Core DDR”), as it relates to the Layer 2 VPN Services, is the average round trip data delivery percentage for a given Network Core segment, calculated by dividing data received by data delivered and multiplying by 100. Data delivered is the number of Ethernet Service Frames delivered in a given calendar month by Cox from an ingress router at a Cox network device in the given Network Core segment for delivery to an egress router at another specific Cox network node in the region and returned to the same ingress router. The Core DDR objective designated by CoS traffic is set forth in Table 2.0, averaged on a monthly basis. (iii) “Core Jitter”, as it relates to the Layer 2 VPN Services, is a measure of the Cox Ethernet Service Frames delay variation within a given Network Core region during a given calendar month, as is the average difference in the interval of time for selected pairs of Ethernet Service Frames that transverse between pairs of Cox network nodes in a given core network segment. The Core Jitter objective designated by CoS is set forth in Table 2.0, averaged on a monthly basis. 510
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(b) Access to Core Network Measurements:
(i) “Access Latency” as it relates to the Layer 2 VPN Services, is the time elapsed from when the first bit of an Ethernet Service Frame enters the UNI to when the last bit returns to the same UNI after the Ethernet Service Frame has transversed the Access to Core network on a round trip basis. The Access Latency objective designated by CoS is set forth in Table 2.0, averaged on a monthly basis.
(ii) Access Data Delivery Ratio (“Access DDR”), as it relates to the Layer 2 VPN Services, is the percentage of Ethernet Service Frames that successfully traverse the Access to Core network segment on a round trip basis. The Access DDR objective designated by CoS is set forth in Table 2.0, averaged on a monthly basis. (iii) “Access Jitter” as it relates to the Layer 2 VPN Services, is a measure of the Cox Ethernet Service Frame delay variation within an Access to Core network segment during a given calendar month, and is the average difference in the interval of time for selected pairs of Ethernet Service Frames that transverse the Access to Core network segment on a round trip basis. The Access Jitter objective designated by CoS is set forth in Table 2.0, averaged on a monthly basis. (c) Service Quality Objectives (“Table 2.0”). The following table sets forth Cox network objectives for Layer 2 VPN Service Availability, Data Delivery Ratio, Latency and Jitter for four (4) regional classifications and three (3) access to core network segments objectives based upon CoS:

Table 2.0

8. Layer 2 VPN Service Response and Resolution. In the event Cox receives a Trouble Report (defined below) from Customer, Cox will initiate action to clear the trouble within approximately thirty (30) minutes. If the Trouble Report is the result of an electronic component failure, the estimated restoration time is four (4) hours. If the Trouble Report is the result of a cable or fiber failure or any other issue, the estimated restoration time is eight (8) hours.

9. Customer Responsibilities / Trouble Reports. Cox will maintain a twenty-four (24) hour, seven (7) day a week point-ofcontact for Customer to report Layer 2 VPN Service issues, including troubles, outages or Layer 2 VPN Service Interruptions. Customer shall call Trouble Reports to the telephone number provided by Customer’s local market sales representative. A “Trouble Report” means any report made by Customer relating to the Layer 2 VPN Services or the equipment provided by Cox. 511
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Cox will investigate the Trouble Report and assign a trouble ticket number. To qualify for any Service Credit(s), Customer must request, in writing, a Service Credit within thirty (30) calendar days of a qualifying Trouble Report. Cox will be the only party to determine (in its sole discretion) whether Cox has not met any of the SLA terms specified herein and whether a Service Credit is to be issued. Customer shall cooperate with Cox at all times in testing, determining and verifying that a qualifying Layer 2 VPN Service Interruption or other issue related to this SLA has occurred.

10. Layer 2 VPN Service Installation Intervals.
(a) Layer 2 VPN Service Installation and Availability. Cox will make commercially reasonable efforts to install, provision and make the Layer 2 VPN Services available for Customer’s use within ten (10) business days of the installation date if explicitly defined in the Agreement, if any (“Estimated Install Date”). Layer 2 VPN Service shall be deemed as available upon Cox’s installation of the equipment and facilities necessary to provide Customer the Layer 2 VPN Services. (b) Installation Delay Credit. Cox shall provide Customer with an Installation Delay Credit if the Layer 2 VPN Services are not available for Customer’s use within ten (10) business days of the Estimated Install Date. In this event, Cox will provide an “Installation Delay Credit” of One Hundred Percent (100%) off the standard nonrecurring charge (“NRC”) paid by Customer for the portion of the Layer 2 VPN Service that was unavailable. This Installation Delay Credit shall apply only to Cox standard NRCs and shall not apply to construction or other non-standard charges billed to Customer that are associated with providing Layer 2 VPN Services to Customer.
(c) Exceptions to Installation Delay Credits. Installation Delay Credits shall not be provided for installation delays (i) caused by or requested by Customer, its employees, agents or subcontractors; (ii) due to inabilities or difficulties of Cox to access Customer’s premises; (iii) due to the public utility company restricting Cox’s access to necessary conduits or wiring in Customer’s building or property; (iv) due to any delays in obtaining any necessary permits, licenses, pole attachment agreements, rights of way, or other access or property rights; (v) due to any causes addressed in Section 11; or (vi) due to Force Majeure events.

11. Exceptions and Limitations to Service Credit.
(a) Exceptions. Service Credits shall not be provided for any Layer 2 VPN Service Interruptions or failures to meet the Layer 2 VPN Service Availability, Service Quality objectives, estimated restoration time, Estimated Install Date, or any other term or objective specified in this SLA: (i) caused by Customer, its employees, agents or subcontractors; (ii) due to failure of power or other equipment provided by Customer or the public utility company supplying power to Cox or Customer; (iii) during any period in which Cox is not allowed access to the premises of Customer to access Cox equipment; (iv) due to scheduled maintenance and repair; (v) caused by or due to violations of the Cox Acceptable Use Policy or any misconduct or accident of the Customer; (vi) caused by a loss of service or failure of the Customer’s internal wiring or other Customer equipment; (vii) due to Customer’s failure to release the Layer 2 VPN Service for testing and/or repair to Cox; or (viii) due to Force Majeure events.

For purposes of this SLA, Force Majeure shall mean (i) third party cable cuts, acts of God, fire, flood, or other natural disaster; (ii) laws, orders, rules, regulations, directions, or actions of governmental authorities having jurisdiction over the Layer 2 VPN Services; (iii) any civil or military action including national emergencies, riots, war, civil insurrections or terrorist attacks; (iv) taking by condemnation or eminent domain of a party’s facilities or equipment; (v) strikes or labor disputes; (vi) fuel or energy shortages; (vii) delays in obtaining permits or other approvals from governmental authorities for construction or Layer 2 VPN Services provisioning, or (viii) any other causes beyond the reasonable control of Cox. In addition, Service Credits shall not apply (a) if Customer is entitled to any other available credits, compensation or remedies under the Agreement for the same Layer 2 VPN Service Interruption, Service Quality issue, deficiency, degradation, delay, or any other issue (b) for Layer 2 VPN Service Interruptions, Service Quality issues, deficiencies, degradations, delays, or issues not reported by Customer to Cox within a reasonable period of time, not to exceed thirty (30) days from when it started, (c) where Customer reports a Layer 2 VPN Service Interruption, Service Quality, or any other issue or failure of Cox to meet any other objective in this SLA, but Cox does not find any such issue, (d) to any Service locations served via a third party (i.e. Type-II site), or (e) to any service not provided under the Agreement even if the service is provided by a Cox affiliate or subsidiary. For any Layer 2 VPN Service locations served via a third party, Cox may pass through any Layer 2 VPN Service credits it receives from the third party associated with any Layer 2 VPN Service Interruption not to exceed the Service Credit amount. (b) Limitations. With respect to all Service Credits under this SLA, no Service Credits shall be issued if: (i) Customer is in breach of its Agreement with Cox; (ii) Customer has a past due balance with Cox under the Agreement; or (iii) Customer is otherwise not in good financial standing with Cox. In addition, in any calendar month, Customer’s combined Service Credits for any and all issues and any failure to meet any objective in this SLA, including, without limitation, Layer 2 VPN Service Interruptions, Service Quality issues, and Installation Delay Credits shall be no more than one (1) full MRC for the affected Layer 2 VPN Services. The calculation of credits under this SLA are exclusive of any applicable taxes, fees, or surcharges charged to the Customer or collected by Cox. All claims for Service Credits must be initiated by the Customer and are subject to review and verification by Cox. Cox reserves the right to change or modify the SLA program rules and regulations at any time without notice. For the avoidance of doubt, Cox and Customer agree that Customer’s sole and exclusive remedy for any Layer 2 VPN 512
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Service Interruptions, installation delays, Service Quality issues, missed repair objectives, service degradations, or any other outages or issues related to the Layer 2 VPN Services provided under the Agreement shall be strictly limited to the Service Credits or the Installation Delay Credit, as applicable, as set forth in this SLA. 513
1 GENERAL TERMS
Last Updated: October 9, 2024
These additional terms and conditions (these “General Terms”) are incorporated into the terms and conditions set forth in the (i) Commercial Services Agreement entered into by and between Cox and Customer (the “CSA”), (ii) Master Retail Services Agreement entered into by and between Cox and Customer (the “MSA”), or (iii) any other written agreement entered into by and between Cox and Customer in which these General Terms are incorporated, whichever is applicable. References in these General Terms to “Agreement” shall mean (i) the CSA, MSA, or other written agreement in which these General Terms are incorporated between Cox and Customer, whichever is applicable, (ii) these General Terms, (iii) the Service Terms (if the CSA is applicable), (iv) the Cox tariffs, as applicable, (v) the Cox Business Acceptable Use Policy (“AUP”) located at coxbusiness.com/acceptableusepolicy, (vi) the Service Guides (“SG”), as applicable, and (vii) all other policies or documents expressly referenced or linked herein. The commercial services ordered by Customer in the Agreement, including any ThirdParty Provided Services, shall each be defined as a “Service” and collectively be defined as the “Services”.

Table of Contents
A. Terms and Conditions Applicable to All Services
B. Terms and Conditions Applicable to Internet and Network Services C. Terms and Conditions Applicable to Voice and Tariffed Services D. Terms and Conditions Applicable to Video Services
E. Terms and Conditions Applicable to Other Services
F. Terms and Conditions Applicable to Cloud Services
G. Terms and Conditions Applicable to Cox Business App Marketplace Services 514
2 A. Terms and Conditions Applicable to All
Services
A1. Billing and Payments.
(a) Payment. Customer shall pay Cox all monthly
recurring charges (“MRCs”), all usage charges for
Services, and all non-recurring charges (“NRCs”), if
any, by the due date on the invoice which shall be
at least thirty (30) days from Cox’s issuance of the
invoice. Any amount not received by the due date
shown on the applicable invoice will be subject to
interest or a late charge no greater than the
maximum rate allowed by law. No interest will be
paid on deposits unless required by law. If Cox
permits Customer to pay any amount due via
separate installment payments, Customer
acknowledges that such installment payments are
provided as a courtesy only and Customer remains
liable for the full amount due.

If Customer provides Cox with any account
information, such as its bank account and routing
numbers or credit or debit card details, Cox may
store that information and use it to administer
Customer’s account, confirm charges, detect and
prevent fraud, verify identity, and process
payments to Customer’s account that Customer
requests in the future by telephone, mobile app,
internet, or otherwise. Additionally, Cox may,
without prior notice to Customer, use Customer’s
stored account information to initiate credit or debit
entries to its account as necessary to correct any
mistakes or amendments in billing, payments, or
collection.
(b) Taxes, Fees, and Surcharges. As applicable
to the Service(s), Customer shall also pay all
applicable taxes, fees, and surcharges including,
without limitation, sales, use, gross receipts, and/or
excise taxes, access fees, universal service fund
assessments, 911/E911 fees, franchise fees, bypass
fees, other local, State and Federal taxes,
surcharges, and any other assessments or charges
(however described or designated) which are
imposed on Cox’s provision and/or Customer’s use
of the Services (collectively, “Taxes, Fees, and
Surcharges”). Cox may also impose additional
Taxes, Fees, and Surcharges on Customer to
recover amounts that Cox is required or permitted
by governmental or quasigovernmental authorities
to collect, or pay to others in support of, or to
comply with, statutory or regulatory programs, plus
a commercially reasonable amount to recover the
administrative costs associated with such charges
or programs. The amount of these Taxes, Fees, and
Surcharges may vary. Taxes, Fees, and Surcharges
will be separately stated on the Customer’s invoice.

Customer shall be responsible for all Taxes, Fees,
and Surcharges (excluding taxes on Cox’s income)
related to the provision or use of the Services by the
due date on the invoice. Any taxes imposed by a
local jurisdiction (e.g., County and municipal taxes)
will only be recovered from those Customers residing
in the affected jurisdictions. Customer is responsible
for the payment of any such Taxes, Fees, and
Surcharges that subsequently become applicable
retroactively. A surcharge, fee or tax is imposed on
all charges for service originating at addresses in
States which levy, or assert a claim of right to levy, a gross receipts tax on Cox's operations in any such
State, or a tax on interstate access charges incurred
by Cox for originating access to telephone exchanges
in that State. This surcharge, fee or tax is based on
the particular State's receipts tax and other State
taxes imposed directly or indirectly upon Cox by
virtue of, and measured by, the gross receipts or
revenues of Cox in that State and/or payment of
interstate access charges in that State. In the event
that Customer believes that, with respect to the
Services provided hereunder, Customer is taxexempt under Federal or State law, Customer shall submit to Cox written verification of Customer’s taxexempt status including exemption certificates or State resale certificates acceptable to Cox and to
the relevant jurisdiction. A non-exhaustive list of
certain surcharges and fees which may apply to the
Services ordered by Customer are posted at
https://www.cox.com/business/support/taxesfees-and-surcharges-for-cox-services.html and coxbusiness.com/cbsurchargesandfees, both of
which are incorporated into the Agreement by this
reference. Other Taxes, Fees, and Surcharges may
apply as determined solely by Cox. All Taxes, Fees,
and Surcharges may be changed by Cox at any time
with or without notice. If Cox is required by law or
regulation to reduce or remove any Fee or
Surcharge during the Term, then, notwithstanding
anything to the contrary in this Agreement, upon
notice to Customer and subject to applicable law,
Cox may increase the charge for the affected
Service to offset such reduction or removal of the
applicable Fee or Surcharge. The amount of such
increase in the charge for the affected Service will
not exceed the amount by which the applicable Fee
or Surcharge is reduced, except as otherwise
permitted in this Agreement.
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3 (c) Billing Disputes. Amounts reasonably disputed
by Customer in good faith shall not be due and
payable for a period of thirty (30) days following the
invoice due date (“Due Date”) for such charges,
provided Customer: (i) pays all undisputed charges
on or before the Due Date, (ii) presents a written
statement of any billing discrepancies to Cox in
reasonable detail together with appropriate
supporting documentation on or before the Due
Date of the invoice in question, and (iii) negotiates
in good faith with Cox for the purpose of resolving
such dispute within said thirty (30) day period. In
the event such dispute is mutually agreed upon and
resolved in favor of Cox, Customer agrees to pay
Cox the disputed amounts together with any
applicable late fees within ten (10) days of the
resolution (the “Alternate Due Date”). If such
dispute is mutually agreed upon and resolved in
favor of Customer, Customer will receive a credit for
the disputed charges and the applicable late fees, if
any were paid by Customer, on the following
month’s invoice. If Cox has responded to
Customer’s dispute in writing and the parties fail to
mutually resolve or settle the dispute within such
thirty (30) day period (unless Cox has agreed in
writing to extend such period), all disputed amounts
together with the late fees shall become due and
payable, and this provision shall not be construed to
prevent Customer from pursuing any legal remedies
as provided in this Agreement. Cox shall not be
obligated to consider any notices of billing
discrepancies from Customer which are received by
Cox more than thirty (30) days following the Due
Date of the invoice in question. Cox reserves the
right to invoice and collect any amounts that it failed to bill or collect in previous invoices at any time.
(D) Service Availability and Special
Construction. During the Term, Services, rates,
and other charges are subject to availability and
operational limitations of Cox’s systems, facilities
and equipment required to provide the Services to
Customer. If Cox’s systems, facilities and
equipment (such as outside plant, cable, conduit,
electronics, central office equipment, remote
terminals, or other similar facilities and systems,
including those furnished by third party providers)
are not available, special construction charges may
apply and/or Cox may assess a cost recovery fee to
recover all costs associated with delivery of the
Services ordered under the Agreement, including
fees related to charges or
modifications imposed on Cox by third-party
providers.

A2. Service Start Date and Term. The Agreement
shall be effective upon execution by Customer and
“Acceptance” by Cox. “Acceptance” of the
Agreement by Cox shall occur upon the earlier of (i)
Cox’s countersignature of this Agreement or
(ii) Cox’s installation of Service at Customer’s
location. The “Initial Term” shall begin upon
installation of Service and shall continue for the
applicable Term commitment set forth in the
Agreement. However, if Customer delays
installation or is not ready to receive Services on the agreed-upon installation date, Cox may begin billing
for Services on the date Services would have been
installed. Cox shall use reasonable efforts to make
the Services available by the requested service
date. Cox may also offer to expedite the availability
of Services with the payment of an expedite fee by
Customer. While Cox will make good faith efforts to
expedite Service availability if Customer pays the
expedite fee, Cox makes no guarantee that Service
availability will be expedited or that Services will
become available on any specific date. Cox shall not
be liable for damages for delays in meeting service
dates due to install delays or reasons beyond Cox’s
control. If Customer delays installation for more
than ninety (90) days after Customer’s execution of
this Agreement, Cox reserves the right to terminate
this Agreement by providing written notice to
Customer and Customer shall be liable for Cox’s
reasonable costs incurred. AFTER THE INITIAL

TERM, THIS AGREEMENT SHALL AUTOMATICALLY
RENEW FOR ONE (1) YEAR TERMS (EACH AN
“EXTENDED TERM”) UNLESS A PARTY GIVES THE

OTHER PARTY WRITTEN TERMINATION NOTICE AT
LEAST THIRTY (30) DAYS PRIOR TO THE

EXPIRATION OF THE INITIAL TERM OR THEN
CURRENT EXTENDED TERM. As used in this
Agreement, the “Term” shall mean the Initial Term
and Extended Term(s), if any. Cox reserves the
right to increase rates for all non-video Services and
for all Services not subject to a Cox tariff or SC by
up to ten percent (10%) at any time during any
Extended Term by providing Customer with at least
thirty (30) days prior written notice of such rate
increase. This ten percent (10%) limitation on rate
increases shall not apply to video Services or
Services for which rates, terms and conditions are
governed by a Cox tariff or SG. In the event,
however, at any time during an Extended Term, Cox
provides Customer with at least thirty (30) days
prior written notice of its intent to (i) increase rates 516
4 for any non-video Service and/or any Service not
subject to a Cox tariff or SG by more than ten
percent (10%) or (ii) assess a monthly recurring
charge for any Service that Cox previously
provided to Customer at no charge, then
Customer will have thirty (30) days from its
receipt of such notice to cancel the affected
Service(s) without further liability. Upon notice to
Customer, Cox may change the rates for video
Services and/or telephone Service subject to a Cox
tariff or SG periodically during the Term. For the
avoidance of doubt, promotional rates and
promotional discounts provided to Customer will
expire at the end of the Initial Term or earlier as set forth in the promotion language. Customer’s
payment for Service after notice of a rate increase
will be deemed to be Customer’s acceptance of the
new rate. Customer is subject to credit approval
and Customer authorizes Cox to check credit.

A3. Termination.
(a) Termination by Customer. Customer may
terminate any Service before the end of the Term
as stated in the Agreement upon at least thirty (30)
days written notice to Cox; provided, however, if
Customer terminates any such Service before the
end of the Term (except for breach by Cox), unless
otherwise expressly stated in the General Terms,
Customer will be obligated to pay Cox a termination
fee equal to the nonrecurring charges (if unpaid)
and One Hundred Percent (100%) of the monthly
recurring charges for the terminated Service(s)
multiplied by the number of months, including
partial months, remaining in the Term. If Customer
terminates or decreases any Service that is part of
a bundle offering, the remaining Service(s) shall be
subject to price increases for the remaining Term.

This provision survives termination of the
Agreement. The early termination fees constitute
liquidated damages, and the Parties agree that any
liquidated damages payable under this Agreement do
not constitute a penalty and that the amount of such
liquidated damages is reasonable in light of the
ancipated harm caused by the breach.
(b) Disconnection Requests. Customer agrees
to provide Cox with at least thirty (30) days written
notice before terminating any Service or this
Agreement, including Services that are on a monthto-month term. Cox may take up to thirty (30) days after the date of Customer’s disconnection request
to schedule and complete the Service disconnection.

In addition to all applicable early termination fees
which will be calculated beginning on the date the
Services are actually terminated, Cox may charge
Customer, and Customer shall pay Cox, the applicable
monthly recurring charge for the Service up until the
date the Service is actually disconnected by Cox.
(c) Termination by Cox. Cox may terminate
Service(s) and/or this Agreement, in whole or in part,
upon notice to Customer and without liability to Cox
for any of the following reasons: (i) Customer’s
nonpayment of a bill within the payment period
prescribed; (ii) Customer’s failure to make a security
deposit as requested by Cox; (iii) Customer’s violation of, or noncompliance with, any provision of law; (iv)
Customer’s or any third party’s refusal to permit Cox
access to the Premises, including, without limitation,
for installation, repair, recovery, maintenance ,
and/or inspection; (v) Customer’s interconnection of
a device, line, or channel to Cox’s facilities or
equipment contrary to Cox's or industry standards;
(vi) Customer’s use of Services in such manner as to
interfere with service to other customers; (vii)
Customer’s abandonment of the Service; (viii)
Customer’s impersonation of another with fraudulent
intent or other acts, whether real or perceived, to
defraud Cox or others; (ix) Customer’s use of the
Services in a manner reasonably expected to frighten,
abuse, torment, harm, or harass another;
(x) Customer engages in threatening, harassing or
vexatious behavior towards Cox or its employees;
(xi) Customer or its equipment, or anyone acting on
Customer’s behalf, interferes with the operational
integrity of Cox’s network; or (xii) Customer makes
an assignment for the benefit of creditors or files for bankruptcy protection under the United States
bankruptcy code. Customer shall be liable for the
early termination fee described in paragraph (a)
above if Cox terminates Service(s) or this Agreement
for any of the reasons enumerated in (i) through (xii).

To protect itself and/or its other customers, Cox may
suspend or disconnect a Customer’s Service without
prior notice for violation of the above subsections that threaten or harm Cox’s network reliability or for
fraudulent or malicious intent or other acts, whether
real or perceived, to defraud Cox or others.

Cox may also terminate Service(s) and/or this
Agreement, in whole or in part, and without liability
to Cox, upon thirty (30) days written notice to
Customer (unless stated otherwise below) for any of
the following reasons: (i) signal interference with any Service that Cox cannot resolve with commercially
reasonable efforts; (ii) there is a material increase in Cox’s costs to provide the Service; (iii) Cox’s
517
5 franchise authority or other governmental
authorization is cancelled or terminated; (iv) Cox’s
pole attachment/conduit use rights are terminated
or become subject to such restrictions or conditions
that continuation of this Agreement is
impracticable or prohibited; or (v) there is a
material change in any law, rule, regulation, Force
Majeure event, or judgment of any court or
government agency that affects (in Cox’s sole
determination) Cox’s ability to provide the
Services. Cox may also immediately terminate
Service(s) and/or this Agreement without liability
to Cox if Cox determines, in its sole discretion,
that the cost of providing Service(s) is
unreasonable, excessive, and/or unexpected or if
Cox decides in its sole discretion that the location
where the Customer receives or uses the
Service(s), or wishes to receive or use the
Service(s), is not acceptable to Cox. Further, Cox
may terminate any Service(s) and/or the
Agreement for its convenience on sixty (60) days
written notice to Customer without any liability to
Cox.
(d) Suspended, Modified, or Discontinued
Service. Cox may, in its sole discretion, choose to
suspend, modify, or discontinue a Service (or any
feature of a Service) provided to Customer without
liability to Cox and such action by Cox shall not be a
breach of contract or Default by Cox under this
Agreement. Cox’s right to modify a Service includes
the right for Cox to (i) use Cox subcontractors to
provide all or a portion of a Service on Cox’s behalf;
or (ii) use a third party or third parties to provide all or a portion of a Service with Cox acting as a reseller of such Service. The Customer acknowledges and
understands that technology and capabilities are
subject to change during the Term of the
Agreement. Cox makes no guarantees that any
particular feature, or even any entire Service, will
be available throughout the Term. Cox will attempt
to provide Customer with at least thirty (30) days
written notice prior to discontinuing a Service (or
any feature of a Service) that Customer has recently
been using, however, Cox’s failure to provide such
notice will not restrict its right to suspend, modify,
or discontinue the Service or any feature of a
Service.

Further, Cox may, in its sole discretion, move
Customer to a substantially similar or better Service
at any time without increasing Customer’s MRC. For
example, Cox may move Customer from a standard
Cox Business Internet (CBI) Service to a fiber-based
connection. All Services shall continue to be subject to all restrictions, terms, and conditions in this
Agreement. Customer shall cooperate with Cox to
facilitate the Service change. Cox will make good faith efforts to minimize disruption, but there may be some
disruption as Services are moved, including, without
limitation, that IP addresses may change.
(e) Cox may, in its commercially reasonable
discretion, immediately terminate, suspend, and/or
refuse to provide Services to any party engaged in the
adult, gaming or gambling industries or any party
engaged in offshore activities which are illegal under
US law, or any party engaged in illegal activities or
any party which is operating or located in embargoed
countries, or wishing to use Services in any location
deemed unacceptable by Cox in its sole discretion.

A4. Default. If either Cox or Customer (each a
“Party”) fails to perform any material term, provision, covenant, condition, agreement, or obligation under
this Agreement, and fails to cure such breach within
thirty (30) days after receiving written notice of the
breach from the other Party, or within ten (10) days
after receiving notice of the breach from the other
Party if the breach is the result of any late payment,
such Party shall be deemed in “Default” under this
Agreement. In this event, the non-Defaulting Party
shall be entitled to pursue any and all remedies
available at law or in equity but subject to the
limitations contained in this Agreement. If any nonmonetary Default cannot be cured within the applicable cure period set forth above, an event of
Default does not occur if the Defaulting Party
commences to cure the Default within the applicable
cure period and diligently completes the cure as soon
as reasonably practicable, but in any event within
sixty (60) days after receiving the Default notice.

Notwithstanding the foregoing, if Customer is in
Default during the Term of this Agreement, then Cox
may pursue one or more of the following courses of
action upon notice to Customer as required by tariff
or applicable law: (i) terminate Service whereupon all
sums then due and payable, including any applicable
termination fees, shall become immediately due and
payable, or (ii) suspend all or any part of Services, in addition to pursuing any and all remedies, including
reasonable attorneys’ fees, available at law or in
equity. If Customer is in Default for failing to pay any amount due, Customer shall also be liable for any
applicable interest, costs of collection (including
attorneys’ fees and third party agent collection fees), late fees (subject to state law and regulations), door
collection fees, bank fees and any other applicable
518
6 fees, charges or payments (collectively, “Collection
Fees”). Any balance amount that remains
delinquent may be referred to a third party for
collections. In the event arbitration or suit, as the
case may be, is brought or any attorney is retained
by Cox to collect any payments which are past due
hereunder and/or to enforce any provision of the
Agreement and Cox prevails, Cox shall be entitled to
recover, in addition to any other remedy,
reimbursement for Collection Fees, reasonable
attorneys’ fees, litigation and arbitration costs,
expert witness fees, and court costs incurred in
connection therewith, in addition to all other relief a court may award.

A5. Customer Responsibilities.
(a) Customer is responsible for all internal wiring,
Customer equipment (e.g., Customer phones,
handsets, keystones, etc.), installation of
hardware and software on Customer equipment,
and arranging all necessary rights of access for
Cox including space for cables, conduits, and Cox
Equipment (defined herein) as necessary for Coxauthorized personnel to install, repair, inspect, maintain, replace, or remove any and all Cox
Equipment. Customer shall provide a secured
space with electrical power, climate control and
protection against fire, vandalism, and other
casualty for Cox Equipment. Customer shall use
the Services in compliance with all applicable laws,
regulations, and ordinances, as well as applicable
leases and other contractual agreements between
Customer and third parties. Customer is solely
responsible for ensuring that Customer and any
end user(s) comply with all applicable law.

Customer is responsible for ensuring that
Customer’s equipment is compatible with the
Services selected and with the Cox network.

Customer shall ensure that its equipment and/or
system or that of its agent is properly interfaced
with Cox's Service, that the signals emitted into
Cox's network are of the proper mode, bandwidth,
power, data speed, and signal level for the
intended use of the Customer and in compliance
with the criteria set forth herein, and that the
signals do not damage Cox Equipment, injure its
personnel or degrade service to other Customers.

The magnitude and character of the voltages and
currents impressed by Customer or its equipment
on Cox Equipment and wiring by the connection,
operation, or maintenance of such equipment and
wiring shall be such as not to cause damage to Cox
Equipment and wiring or injury to Cox's employees
or other persons. If the Customer or its agent fails to maintain and operate its equipment and/or system
or that of its agent properly, with resulting imminent
harm to Cox personnel, Cox Equipment, or the
quality of service to other customers, Cox may, upon
written notice, require the use of protective
equipment at the Customer's expense. If this fails
to produce satisfactory quality and safety, Cox may,
upon written notice, terminate the Customer's
service without liability. Cox shall not be liable for
Customer’s failure to fulfill any of its obligations
and/or responsibilities, including those stated in this paragraph.
(b) Customer shall not, without Cox’s prior written
consent, use or disclose the Confidential Information
of Cox during the Term of the Agreement and for two
(2) years following the expiration or termination
hereof. As used herein, “Confidential Information”
shall mean any non-public information owned or duly
licensed by Cox relating to its respective business
activities, products, services, financial affairs,
technology, marketing or sales plans disclosed related
to the Agreement, and received by Customer
pursuant to the Agreement, including, but is not
limited to, the terms and pricing of the Agreement.

Confidential Information shall not include information
which: (i) is or becomes public knowledge through no
breach of the Agreement by Customer, (ii) is received
by Customer from a third party not under a duty of
confidence, or (iii) is already known or is
independently developed by Customer without use of
the Confidential Information. Customer will take all
reasonable precautions to protect Cox’s Confidential
Information, using at least the same standard of care
as it uses to maintain the confidentiality of its own
confidential information. Notwithstanding the
foregoing, Customer may disclose Confidential
Information: (i) to any consultants, contractors, and
counsel who have a need to know in connection with
the Agreement and are contractually and/or legally
subject to a duty of confidentiality, or (ii) pursuant to legal process; provided that Customer shall, unless
legally prohibited, provide Cox with reasonable prior
written notice sufficient to permit it an opportunity to contest such disclosure.

A6. Customers With Building Alarm or Security
Systems. Customer shall be solely responsible for
(i) all fire, security, surveillance or other alarm or
automation equipment and systems, including any
installation, inspection, maintenance, testing or
monitoring relating thereto, (ii) ensuring the
compatibility of the Service(s) with any such
equipment and systems, and (iii) monitoring any
519
7 battery back-up (including requesting a
replacement battery upon battery exhaustion)
provided by Cox in connection with the Service(s).

Customer represents and warrants that its use of
the Service(s) with any fire, security, surveillance
or other alarm or automation equipment or
system shall comply with all Federal, State or local
laws, regulations, codes or requirements, including
without limitation the National Fire Alarm and
Signaling Code (as published by the National Fire
Protection Association) and the International Fire
Code (as published by the International Code
Committee), as applicable. For the avoidance of
doubt, any alarm, fire, security, surveillance, or
other alarm or automation systems and related
services, including video and monitoring service
relating thereto, provided to Customer by Cox or its
Affiliates will be provided pursuant to the terms of
conditions of a separate Cox Security Services
Agreement, and not this Agreement.

A7. Equipment. Unless otherwise provided
herein, Customer agrees that Cox shall retain all
rights, title and interest to equipment provided by
Cox (the “Cox Equipment”), and Customer shall
not create or permit to be created any liens or
encumbrances on Cox Equipment. All Cox
Equipment, including, without limitation,
equipment, network and transmission facilities
used by Cox to provide the Services under this
Agreement, is the sole and exclusive property of
Cox. Internal wiring beyond the Demarcation Point
shall not be considered Cox Equipment and shall
become the property of Customer upon
installation of Service. At Cox’s sole option, other
wiring and cabling may remain on the Customer
premises following the expiration or earlier
termination of the Agreement. For video Services,
Cox shall install Cox Equipment necessary to
furnish the video Service up to the Demarcation
Point (as defined herein) of Customer’s, or any
applicable end user’s as the case may be, service
location(s) (such location(s) referred to herein as
the “Premises”) except that Customer shall be
required to rent additional equipment from Cox for
an additional fee if Cox transitions its analog
channels to digital. Customer may also be required
to provide a Customer Internal Distribution
System (as defined below), depending upon the
nature of the Services purchased by Customer.

Customer shall use the Cox Equipment only to
receive the Services and shall not modify or
relocate Cox Equipment without Cox’s prior
written consent. Customer shall not permit
tampering, altering, or repair of the equipment by
any person other than Cox’s authorized personnel.

Customer shall, at the expiration or termination of
this Agreement, return the Cox Equipment in good
condition, ordinary wear and tear excepted.

Customer is responsible for ensuring that Cox has
reasonable continuous access at the Premises to the
Cox Equipment (including, as the case may be,
unoccupied guest rooms, etc.), the Demarcation
Point and, if needed, the Customer Internal
Distribution System for purposes of installation,
connection/disconnection, transferring, inspecting,
maintaining, repairing, upgrading, swapping,
servicing and/or removing the Cox Equipment
and/or the Customer Internal Distribution System,
and to do all other things reasonably necessary to
provide the Services as determined by Cox. Cox has
the right to change, modify, rearrange, or swap the
Cox Equipment at any time and Customer
acknowledges that said changed, modified,
rearranged, or swapped Cox Equipment may have
different or fewer capabilities and features. Cox
reserves the right to increase rates charged to
Customer for Cox Equipment and to changes any
related payment terms from time to time during the
Initial Term and any Extended Term(s) without prior
notice. Customer shall operate any Cox Equipment
in accordance with the instructions of Cox or Cox's
agent. Upon and after expiration or earlier
termination of the Agreement, Customer
acknowledges and agrees that Cox shall have the
right to enter the Premises upon reasonable notice
to Customer to remove and retrieve the Cox
Equipment. Such right of entry shall expressly
survive the expiration or earlier termination of the
Agreement. Customer is solely responsible for any
damage to the Cox Equipment unless caused by the
sole gross negligence or intentional misconduct of
Cox. In the event the Cox Equipment is damaged,
destroyed, or is not returned to Cox in good
condition, Customer shall be responsible for the
replacement value of the Cox Equipment. Customer
may use the Services and the Cox Equipment for any
lawful purpose, provided that such purpose: (i) does
not interfere or impair the Cox network or Cox
Equipment; (ii) complies with the AUP; and (iii) is in
accordance with the terms and conditions of this
Agreement. Customer shall use the Cox Equipment
only for the purpose of receiving the Services. Cox
may charge Customer a maintenance fee for routine
maintenance of any Cox Equipment, provided
however that Cox is not responsible for repairing or
replacing any Cox Equipment that is damaged due
to misuse, abuse, vandalism, or theft.
520
8 For certain Services, Customer, may purchase
equipment from Cox (“Customer Purchased
Equipment”). Customer shall use Customer
Purchased Equipment in accordance with the terms
of this Agreement and any related equipment
purchase agreement.

If additional equipment, including but not limited to,
televisions, monitors, computers, circuits, software,
or other devices, are required by Customer to use
the Services, Customer shall be solely responsible
for providing such equipment. Cox shall not be
responsible for the installation, operation or
maintenance of any Customer provided equipment.

Cox shall not be responsible for the transmission of
signals by Customer provided equipment or for the
quality of, or defects in, such transmission; or the
reception of signals by Customer provided
equipment; or network control signaling where such
signaling is performed by Customer-provided
network control signaling equipment.

A8. Customer Internal Distribution System.

In connection with certain Services, Customer
may be required to provide a Customer Internal
Distribution System for purposes of delivering the
Service from the hand-off at the Demarcation
Point to its final destination. The "Customer
Internal Distribution System" shall mean all
distribution plant and associated electronics,
wiring and equipment necessary to distribute the
Service to the designated locations on the
Premises, but the Customer Internal Distribution
System does not include any Cox Equipment. If
the Customer Internal Distribution System exists
on the Premises on the date of execution of the
Agreement, Cox shall inspect such system, at
Customer’s expense, to determine if it meets
Cox’s expectations and requirements for delivery
of the purchased Services. If the Customer
Internal Distribution System is usable, as
reasonably determined by Cox, Customer grants
Cox, during the Term of this Agreement, the
exclusive right to use the Customer Internal
Distribution System to deliver the Service to the
Premises, unless otherwise expressly agreed to by
the parties in writing. Cox reserves the right to
discontinue the Service immediately if it is
determined that the Customer Internal
Distribution System is violating FCC signal leakage
specifications or other applicable laws, rules and
codes. Cox shall have the right to modify the
Customer Internal Distribution System to facilitate
delivery of the applicable Services to the Premises,
subject to receiving Customer's prior consent, which
shall not be unreasonably withheld, conditioned or
delayed. Ownership of the Customer Internal
Distribution System shall remain with Customer at
all times, subject to the use of such system by Cox
pursuant to the Agreement. Customer, and not Cox,
shall be responsible for the repair and maintenance
of the Customer Internal Distribution System
(including all cabling and wiring past the
Demarcation Point) and agrees to keep the
Customer Internal Distribution System in good
working order at all times. Ownership and title to
all Cox Equipment shall remain with Cox at all
times. Cox shall have no obligation to repair,
maintain or remove the Customer Internal
Distribution System.

In the event no Customer Internal Distribution
System exists within the Premises, or if the existing
Internal Distribution System is not usable by Cox or
up to Cox’s expectations: 1) Cox may terminate the
subject Services by providing Customer with written
notice of termination and Cox shall have no obligation
to provide the Service, or 2) Customer may have a
third party install or upgrade the Internal Distribution System so that it meets Cox’s expectations at
Customer’s sole cost and expense, or
3) Cox will provide Customer with a price quote for
the cost to Customer of Cox either installing or
upgrading the Customer Internal Distribution System
as need be. If Customer accepts such price quote,
Customer shall be obligated to pay Cox the cost
thereof upon completion of installation or upgrades of
the Customer Internal Distribution System.

During the Term of this Agreement, the Customer will
not, nor will it permit others to (i) use the Customer
Internal Distribution System (or any portion thereof)
in a manner that causes interference with the
Services, or adversely impacts or violates Cox's rights under the Agreement; or (ii) modify or connect any
other device to the Customer Internal Distribution
System if such action could reasonably be expected
to interfere with Cox's rights under this Agreement.

If Customer contacts Cox regarding a service problem
and Cox confirms that Cox has been providing a signal
to the Demarcation Point and that all Cox Equipment
is functioning correctly, Customer shall be responsible for paying Cox’s standard service call fee.

A9. Representations and Warranties. Customer
represents and warrants to Cox as follows: (i)
Customer is authorized to perform its obligations
521
9 under this Agreement; (ii) By entering into this
Agreement with Cox, Customer shall not be in
violation of any agreement it has with a third-party
relating to the purchase of the Services; (iii)
Customer is a duly organized entity in accordance
with applicable law, and is qualified and authorized
to do business in the location where Services are
used and (iv) the person signing the Agreement is
an authorized Customer representative. Customer
further represents and warrants that upon payment
of any invoice, Customer forever waives any
claim(s) that the person signing the Agreement did
not have the authority to bind the Customer and
Customer shall be bound by the terms of the
Agreement. Cox represents and warrants to
Customer as follows: (i) the applicable Cox Affiliates
are duly authorized to provide the applicable
Services in the applicable “Service Areas” (as
defined below); and (ii) Cox is a duly organized
entity in accordance with applicable law, and is
qualified to do business in the “Service Areas”. For
purposes of this Agreement, “Service Areas” shall
mean the geographic locations within the
continental United States where Cox elects to
provide its Services.

A10. Force Majeure. Customer shall have no
claim against Cox for any failure to perform its
obligations hereunder, in whole or in part, as a result of or caused by (i) acts of God or natural disasters,
including, without limitation, fire, flood, hurricane,
inclement weather, winds, plague, epidemic,
pandemic, outbreaks of infectious disease or any
other public health crisis, including but not limited
to a public health crisis which results in a
quarantine, a stay-at-home order, a shelter in
place order or other restriction on workers; (ii)
civil or military action, including, without
limitation, a national emergency, riot, civil
insurrection, act of terrorism, threat of terrorism,
or the taking of property by condemnation or
eminent domain; (iii) strikes or labor disputes;
(iv) fuel shortages, energy shortages, power
outages, or power reductions, including without
limitation proactive power reductions or power
outages by power companies for safety reason,
wildfire prevention, conservation or other similar
reason;
(v) laws, orders, rules, regulations, directions, or
actions of governmental authorities having
jurisdiction over the Services; (vi) delays in
obtaining permits or other approvals from
governmental authorities for Services
provisioning;
(vii) third party cable cut(s); (viii) events which
make performance inadvisable, commercially
impracticable, illegal or impossible; or (viii) any
other causes beyond the reasonable control of Cox
(each a ”Force Majeure” event).

A11. E-Rate Customers. If Customer is an
educational institution, library or other entity that
qualifies as an applicant seeking reimbursement
under the Federal Universal Service Fund Schools
and Libraries Program, this paragraph shall apply.

Customer shall apply annually to the Schools and
Libraries Division of the Universal Service
Administrative Company, “SLD” for E-Rate funding
and Customer shall designate Cox as its provider of
Services. Customer shall also provide Cox with all
documentation that is in response to all queries,
inquires and requests, including, without limitation,
as part of the Program Integrity Assurance (PIA)
process or any other requests for documentation
within three (3) business days of receipt and/or
delivery thereof. Customer also acknowledges that
increases and decreases in funding for Services may
occur from the SLD. If Customer is denied or loses
SLD funding for any reason, including but not
limited to having its funding rescinded for defects in
its application or filing of forms, or if Customer does not request enough funding to cover full payment
for Services including for applicable Taxes, Fees and
Surcharges, Customer is responsible for full
payment to Cox for all Services and Cox may elect
to decrease or discontinue the level of Services
provided to Customer if full payment is not received.

Further, as clarification, Customer is always
responsible for payment in full for any E-Rate
ineligible Services or charges. If full E-Rate funding
is not received within six (6) months of the
application date, or by the opening of the
application window for the following funding year,
then upon written notice to Customer, Cox may
terminate the Agreement without further liability to
Customer and Customer shall pay Cox the
applicable early termination fees and any unpaid
non-recurring charges.

The auto-renewal provisions in the Agreement shall
not apply for E-Rate reimbursed Services. For E- Rate
reimbursed Services, the Agreement may be renewed
on an annual or other basis upon mutual agreement
of the parties. Customer’s continued use of or payment
of the Services after the expiration of the then-current Term shall be deemed Customer’s consent to renew
the Agreement for an additional year. The Services
may be upgraded or modified at any time via a
522
10 mutually agreeable written amendment to the
Agreement at the upgrade service pricing identified
in the Agreement, the service pricing in Cox’s
proposal to Customer’s solicitation for offers (RFP,
RFQ, etc.), or other mutually agreeable pricing.

A12. Compliance with AUP. Customer (including
any end users of the Service(s)) shall comply with
the AUP and applicable law at all times. In
particular, and without limitation, Customer
(including any end users of the Service(s)) shall not
use the Service or any part of the Service in any
manner which infringes or violates Cox’s or any
third party’s copyright, patent, trade secrets,
trademark, moral rights, right of privacy, right of
publicity, or any other proprietary rights. Customer
is solely responsible for ensuring that any and all
end users of the Service(s), whether authorized by
Customer or not, comply with this Section,
including, without limitation, Cox’s AUP. Customer
shall comply in all respects with the Digital
Millennium Copyright Act (DMCA), including without
limitation by adopting and reasonably
implementing, and informing all end users of the
Service(s) of, a policy that provides for the
termination in appropriate circumstances of
Customer’s subscribers and account holders who
are repeat infringers under Section 512(i) of the
DMCA, and by responding expeditiously upon
receipt of a notice of claimed infringement to
remove or disable access to material that is claimed
to be infringing, to the extent required by the DMCA.

Cox may suspend and, in appropriate
circumstances, terminate any Service or a portion
of any Service at any location without notice, if Cox
in its sole discretion reasonably believes Customer,
or any end user of the Service(s), may be violating
the AUP or this Section or may be using the
Service(s) in violation of applicable law, including
without limitation by repeated infringement of
copyright or failure to comply with the DMCA.

Customer is responsible for providing to Cox the
contact information and email address for
Customer’s designated DMCA agent for any DMCA
related infringement claim notice that Cox may be
required to provide to Customer in accordance with
applicable law. Customer must immediately inform
Cox in writing if the designated DMCA agent contact
information or email address is changed or modified
during the term of the Agreement and provide this
updated information to Cox. Failure by Customer to
adhere to these DMCA notice requirements shall
constitute a Default as defined in Section A4 of
these General Terms. Customer shall indemnify Cox
for any claims, actions, or demands relating to or
arising out of Customer’s failure to provide current
and accurate designated DMCA agent information.

Cox shall not be liable for Cox’s suspension or
termination of Services arising from an alleged or
actual violation of the AUP, this Section, or applicable law. Cox’s termination pursuant to this Section of any
Service that is part of a bundle offering shall not be a basis for termination of this Agreement by Customer.

Cox shall not be liable to Customer for any failure to
enforce the AUP or this Section. The failure of Cox to
enforce the AUP or this Section for any reason does not constitute a waiver of its right to do so at a later time.

Any breach of this Section by Customer or any end
users of the Service(s) shall be deemed a Default of
this Agreement by Customer.

A13. Privacy Policy. Use of the Service(s) is
subject to Cox’s privacy policy, which is posted at
https://www.cox.com/aboutus/policies/businessannual-privacy-notice.html and is incorporated into the Agreement by this reference. In the event of a
conflict between the provisions of this Agreement and
any provision of the privacy policy, the applicable
provision of the privacy policy shall prevail. Cox is not responsible for any information provided by
Customer to third parties, and this information is not
subject to the privacy provisions of this
Agreement or the privacy policy. Customer assumes
all privacy and other risks associated with providing
personal information to third parties via the Services.

Customer and Cox do not intend that Cox will receive
or have access to any personal information of
Customer’s end-users in providing its Services.

Customer assumes all privacy notice and consent
obligations to its end-users regarding any collection,
use or disclosure of the end-users’ personal
information, including any personal information that
may be disclosed to or accessed by Cox in providing
its Services. Customer shall indemnify, defend, and
hold harmless Cox and all Cox Related Parties from
any claims, including without limitation, claims from
Customer’s end users, or any regulatory agency or
person, that arise, in whole or in part, from
Customer’s collection, use or disclosure of its end
users’ personal information in breach of this
Agreement or in violation of applicable privacy laws.

RingCentral Services will be governed by
RingCentral’s privacy notice (“RC Privacy Notice”),
available at:
https://www.ringcentral.com/legal/privacynotice.html
523
11 A14. Wireless Delivery. In certain situations, Cox
may deliver Services to Customer through certain
wireless transport devices or wireless network
facilities. If Cox is delivering Services wirelessly and there is signal interference with such Service and
Cox cannot resolve the interference by using
commercially reasonable efforts, then Cox may
terminate the applicable Service without further
liability to Customer by providing Customer with at
least thirty (30) days prior written notice.

A15. Demarcation. The “Demarcation Point” is
defined as that point where Cox’s responsibility for
the maintenance and operation of the equipment
and network facilities to deliver the Services to
Customer terminates and where Customer’s
responsibilities begin. The Demarcation Point will be
determined solely by Cox based on the applicable
Service(s) ordered by Customer. For information
purposes only and without representation that this
is the specific Demarcation Point for Customer, the
common demarcation point (1) for Cox’s telephone
Service is (a) the punch-down box installed by Cox
at Customer’s location, (b) the telephone closet
within the Premises, or (c) the Cox-owned network
equipment and the desktop telephones installed by
Cox at Customer’s location; (2) for Cox’s video
Service is either, as the case may be as determined
solely by Cox for the applicable Service (i) the video
wall jack, or (ii) the location of the final cable
connection that hands off video feeds to the
Customer Internal Distribution System (as defined
herein); (3) for Cox’s internet Service is the
Ethernet port of the internet connection provided to
Customer by Cox; and (4) for Cox’s Wi-Fi Services
is the physical location of the Cox Wi-Fi access
point. Unless otherwise agreed by the parties,
Customer is solely responsible for wiring, cabling,
equipment and access beyond the applicable
Demarcation Point(s) (i.e., on the Customer side of
said Demarcation Point(s)).

A16. Requests to Move, Add or Change
Services. Notwithstanding anything to the
contrary in this Agreement, Cox in its sole
discretion may accept and process requests from
Customer to move, add or change Services under
this Agreement. All moves, adds and changes are
subject to Cox’s approval and are subject to the
terms and conditions of this Agreement.

Additional charges may apply to any move, add,
or change request. Customer agrees that any new
or additional Services ordered by Customer are
automatically subject to the terms and conditions of
this Agreement. Notwithstanding anything to the
contrary in the Agreement, Cox may refuse any
request to modify the Services, including, without
limitation, requests to increase or decrease Services
or add new locations.

A17. Truck Roll. If a Cox technician is required
to visit the Premises (a “Truck Roll”), Customer
must provide Cox with contact information and any
other information reasonably related to the trouble,
outage, or installation. If the Cox technician is
dispatched and the technical issue is determined by
Cox to be the fault of a party other than Cox or if
Cox is unable to complete an installation or
otherwise deliver Service due to the fault of the
Customer, Cox shall assess a flat Truck Roll charge
to Customer plus an additional fee determined on a
time-and-materials basis.

A18. Cancelled and After-Hour Appointments.

Cox reserves the right to charge Customer a
cancellation fee for missed appointments if
Customer fails to cancel the appointment at least
twenty-four (24) hours in advance of the scheduled
appointment. Cox also reserves the right to charge
Customer a fee for appointments scheduled outside
of Cox’s normal local business hours. The
cancellation and after-hours fee will be determined
by Cox at the time of Customer’s cancellation
request or need for an after-hours appointment.

A19. Indemnity. Customer shall indemnify, defend
and hold Cox and its parent companies, subsidiaries,
Affiliates, and Cox suppliers, contractors, distributors, licensors and business partners, as well as the
officers, directors, employees, agents and
representatives of each of these (each a “Cox Related
Party”, and collectively, the “Cox Related Parties”)
harmless from and against any claim, actions, or
demands relating to or arising out of (a) any breach
or alleged breach of this Agreement by Customer or
any end users of the Services, or (b) Customer’s use
of the Service including without limitation: (i) any
content or software displayed, distributed or
otherwise disseminated by Customer, its employees,
or any end users of the Services, (ii) any claim that
Customer’s content or registration and maintenance of
Customer’s selected domain name(s), infringes on
the patent, copyright, trademark or other intellectual
property right of any third party; (iii) any act in
violation of any laws committed by Customer, its
employees, agents or any end users using the
Services; and/or (iv) violation of the Cox AUP by
524
12 Customer, its employees, agents or any end users of
the Services.

A20. LIMITATION OF LIABILITY/ DISCLAIMER
OF WARRANTIES. IN ADDITION TO ANY OTHER

LIMITATIONS OF LIABILITY CONTAINED IN THE

AGREEMENT, NEITHER COX NOR ANY COX RELATED

PARTY SHALL BE LIABLE FOR DAMAGES FOR

FAILURE TO FURNISH OR INTERRUPTION OF ANY

SERVICES, OR FOR ANY LOSS OF DATA OR STORED

CONTENT, IDENTITY THEFT, OR FOR ANY PROBLEM

WITH THE SERVICES OR EQUIPMENT OF ANY THIRD

PARTY, NOR SHALL COX NOR ANY COX RELATED

PARTY BE RESPONSIBLE FOR FAILURE OR ERRORS

OF ANY COX SERVICE, COX EQUIPMENT, SIGNAL

TRANSMISSION, LICENSED SOFTWARE, LOST

DATA, FILES OR SOFTWARE DAMAGE REGARDLESS
OF THE CAUSE. NEITHER COX NOR ANY COX

RELATED PARTY WILL BE LIABLE FOR DAMAGE TO

PROPERTY OR FOR PHYSICAL INJURY TO ANY

PERSON ARISING FROM THE INSTALLATION OR

REMOVAL OF EQUIPMENT UNLESS CAUSED BY THE
NEGLIGENCE OF COX. UNDER NO CIRCUMSTANCES

WILL COX OR ANY COX RELATED PARTY BE LIABLE

FOR ANY INDIRECT, INCIDENTAL, SPECIAL OR

CONSEQUENTIAL DAMAGES, INCLUDING LOST

PROFITS, ARISING FROM THIS AGREEMENT OR
PROVISION OF THE SERVICES.

COX HEREBY EXPRESSLY DISCLAIMS ALL

WARRANTIES AND MAKES NO REPRESENTATIONS
OF ANY KIND THAT COX’S SERVICES OR

EQUIPMENT WILL WORK WITH OR SUPPORT ANY
THIRD-PARTY SERVICE, OR THAT ANY THIRDPARTY PROVIDED SERVICES WILL WORK WITH OR SUPPORT ANY COX SERVICE. COX AND ANY

COX RELATED PARTIES SHALL HAVE NO
LIABILITY FOR CUSTOMER’S USE OF ANY THIRDPARTY SERVICES OR EQUIPMENT. COX AND ANY

COX RELATED PARTIES SHALL HAVE NO

LIABILITY FOR ANY INFORMATION SHARED WITH
CUSTOMER’S THIRD- PARTY SERVICE PROVIDER.

CUSTOMER ACKNOWLEDGES THAT COX IS NOT A
PARTY TO CUSTOMER’S CONTRACT WITH ANY
THIRD PARTY SERVICE PROVIDER. HOWEVER,

ANY SUCH AGREEMENT BETWEEN CUSTOMER

AND A THIRD PARTY SERVICE PROVIDER SHALL
NOT MODIFY OR SUPERSEDE CUSTOMER’S
AGREEMENT WITH COX OR ANY OF CUSTOMER’S
OBLIGATIONS IN THIS AGREEMENT.

COX’S TOTAL AGGREGATE LIABILITY FOR ANY

AND ALL CAUSES OF ACTION ARISING OUT OF OR

RELATING TO THE AGREEMENT (INCLUDING, BUT

NOT LIMITED TO, CONTRACT, TORT (INCLUDING

NEGLIGENCE) AND STRICT PRODUCT LIABILITY)

SHALL BE LIMITED TO THE LESSER OF (I) THE FEES

PAID OR OWED BY CUSTOMER UNDER THE
AGREEMENT IN THE THREE (3) MONTHS

PRECEDING THE DATE THE CLAIM ARISES OR (II)
ANY OTHER APPLICABLE LIMITATION ON COX’S
LIABILITY. CUSTOMER AGREES THAT, UNDER ALL
OF THE CIRCUMSTANCES, THE THREE (3) MONTHS’
FEES LIMITATION ON COX’S LIABILITY IS FAIR AND
REASONABLE.

EXCEPT AS PROVIDED IN THE AGREEMENT, THERE

ARE NO OTHER AGREEMENTS, WARRANTIES OR

REPRESENTATIONS, EXPRESS OR IMPLIED, EITHER

IN FACT OR BY OPERATION OF LAW, STATUTORY

OR OTHERWISE, INCLUDING WARRANTIES OF

MERCHANTABILITY AND FITNESS FOR A

PARTICULAR PURPOSE, RELATING TO THE
SERVICES. COX DOES NOT WARRANT THAT THE

SERVICES, EQUIPMENT OR SOFTWARE SHALL BE
ERROR-FREE OR WITHOUT INTERRUPTION. COX

DOES NOT GUARANTEE THAT SERVICE CAN BE
PROVISIONED TO CUSTOMER’S LOCATION, OR

THAT INSTALLATION OF SERVICE WILL OCCUR IN
A SPECIFIED TIMEFRAME. COX DOES NOT

WARRANT THAT ANY SERVICE OR EQUIPMENT WILL
MEET CUSTOMER’S NEEDS, PERFORM AT A

PARTICULAR SPEED, BANDWIDTH OR

THROUGHPUT RATE, OR WILL BE UNINTERRUPTED,

ERROR-FREE, SECURE, OR FREE OF VIRUSES,
WORMS, DISABLING CODE OR THE LIKE.

INTERNET AND WIFI SPEEDS WILL VARY. COX

MAKES NO WARRANTY AS TO TRANSMISSION OR

UPSTREAM OR DOWNSTREAM SPEEDS OF THE
NETWORK.

ADDITIONAL LIMITATIONS ON COX’S LIABILITY FOR

COX INTERNET SERVICES OR ANY OTHER SERVICE,

SUCH AS CERTAIN VOICE SERVICES, THAT USE THE
INTERNET: THE PUBLIC INTERNET IS USED BY

NUMEROUS PERSONS AND ENTITIES INCLUDING,

WITHOUT LIMITATION, OTHER COX INTERNET
SUBSCRIBERS. AS IS THE CASE WITH ALL SHARED

NETWORKS LIKE THE PUBLIC INTERNET, THERE IS A

RISK THAT CUSTOMER COULD BE SUBJECT TO
“EAVESDROPPING.” THIS MEANS THAT OTHER

PERSONS OR ENTITIES MAY BE ABLE TO ACCESS
AND/OR MONITOR CUSTOMER’S USE ON THE
INTERNET. IF CUSTOMER POSTS, STORES,

TRANSMITS, OR DISSEMINATES ANY SENSITIVE OR

CONFIDENTIAL INFORMATION, CUSTOMER DOES SO
AT ITS SOLE RISK. NEITHER COX, NOR THE COX

RELATED PARTIES SHALL HAVE ANY LIABILITY
525
13 WHATSOEVER FOR ANY CLAIMS, LOSSES,

ACTIONS, DAMAGES, SUITS OR PROCEEDINGS

ARISING OUT OF OR OTHERWISE RELATING TO
SUCH ACTIONS BY CUSTOMER. CUSTOMER

ACKNOWLEDGES THAT SOFTWARE PROGRAMS ARE

COMMERCIALLY AVAILABLE THAT CLAIM TO BE
CAPABLE OF ENCRYPTION OR ANONYMIZATION.

COX MAKES NO REPRESENTATION OR WARRANTY

REGARDING THE EFFECTIVENESS OF THESE
PROGRAMS.

A21. Protected Health Information. In providing
its Services, Cox is not and does not intend to be a
business associate or “contractor” as those terms
are defined under the Health Insurance Portability
and Accountability Act of 1996 (HIPAA; Pub.L. 104–
191, 110 Stat. 1936, enacted August 21, 1996)
regulations, state healthcare privacy laws, or their
associated regulations, as amended (“Medical
Privacy Laws”). Cox has only random and infrequent
access to protected health information as a conduit
in the provision of its Services as necessary for
transaction or required by law and does not store
any protected health information other than on a
temporary basis incidental to the transition over the
Services. It is Customer’s responsibility to
adequately protect any patient, medical, or
protected health information. Customer shall
indemnify, defend, and hold harmless Cox and all
Cox Related Parties from any third party claims,
including without limitation, claims from Customer’s
patients or end users, or the Department of Health
and Human Services, or any other regulatory
agency or person, that arise, in whole or in part,
from Customer’s use of Cox Services in violation of
the HIPAA regulations.

A22. Viruses, Content, Customer Information.

Software or content obtained from the use of
Services may contain viruses or other harmful
features and Customer is solely responsible for
protecting its network, equipment, and software
through the use of firewalls, anti-virus, and other
security devices. Customer further acknowledges
and accepts that Customer is solely responsible for
fraudulent activity and related charges that result
from Customer’s failure to protect its network,
equipment and software. Through the use of the
Services, Customer may obtain or discover content
that is offensive or illegal and Customer assumes the
risk and is solely responsible for its access to such
content. Cox may disclose Customer information to
law enforcement or to any Cox Affiliate. Cox may
delete any Internet traffic or e- mails that contains
a virus or other harmful code.

A23. Offshore and International Services. Cox
may determine, in its sole discretion, and at any
time, whether or not to provide Services and/or any
indirect, ancillary or overhead service outside the
continental United States.

A24. Audit. Except as explicitly provided in the
Agreement, Customer shall have no right to review
or audit any records of Cox or any Cox Related
Party. If the Agreement explicitly permits the
Customer to review or audit Cox’s records, the
following terms shall govern and take precedence:

Customer’s audit shall be strictly limited to
reviewing documents reasonably related to billing
and invoicing errors for the Services provided by
Cox to Customer under the Agreement. Customer
shall have no right to audit any Cox confidential
information, including information on Cox’s
security/IT systems or pricing information for its
vendors. Audits shall be at reasonable times and
locations as mutually agreed by the parties, at the
sole cost of the Customer, and limited to once per
calendar year. Customer shall execute a NonDisclosure Agreement in a form acceptable to Cox prior to any audit.

A25. Service Level Agreements. If this
Agreement expressly includes a ‘Service Level
Agreement’ or similar agreement with terms
providing the payment of service credits or monies
in the event of service interruptions, missed repair
objectives, service degradations, or any other
outages related to the Services (collectively, an
“SLA”), the following terms and conditions shall
apply, and the service credits provided shall be
Customer’s sole and exclusive remedy for any and
all service interruptions, missed repair objectives,
degradations,outages or any other issue related to
the Services (a “Service Interruption”):

Any amounts due from Cox to Customer under the
SLA shall be in the form of service credits only. To
qualify for a service credit, Customer must
immediately notify Cox of any Service Interruption via
the designated support telephone number. Cox will
thereafter assign a trouble ticket number. Subject to
any and all of the exceptions and limitations described herein, only the portion of the Service(s) experiencing a Service Interruption is eligible for a service credit and such eligibility begins only upon Cox’s issuance of a
trouble ticket number.
526
14 Service credits shall not be provided for any failures to meet the SLAs: (i) caused by Customer, its
employees, agents or subcontractors, including
without limitation any end users of the Service; (ii)
due to failure of power or other equipment provided
by Customer or the public utility company supplying
power to Cox or Customer; (iii) during any period in
which Cox is not allowed access to the Premises to
access Cox Equipment; (iv) due to scheduled
maintenance and repair; (v) caused by or due to
violations of the Cox AUP or any other misconduct
or misuse of the Services by Customer; (vi) caused
by a loss of service or failure of the Customer’s
internal wiring or other customer equipment; (vii)
due to Customer’s failure to release the Service for
testing and/or repair to Cox; or (viii) due to a Force
Majeure event. In addition, service credits shall not
apply (a) for Service Interruptions not reported by
Customer to Cox promptly after Customer first
discovered the Service Interruption, (b) where
Customer reports a Service Interruption, but Cox
does not verify any Service Interruption, (c) to any
Service locations served via a third party (i.e., TypeII site), (d) if Customer is in breach of its Agreement with Cox, (e) if Customer has a past due balance
with Cox under the Agreement, or (f) if Customer is
otherwise not in good financial standing with Cox.

To qualify for any service credit(s), Customer must
request, in writing, the service credit within thirty
(30) calendar days of a qualifying Service
Interruption. Cox will be the only party to determine
(in its sole discretion) whether Cox has not met any
of the SLA terms and whether a service credit is to
be issued. Customer must cooperate with Cox at all
times in testing, determining and verifying the
occurrence of a qualifying Service Interruption. In
any calendar month, Customer’s combined credits
for the affected Services shall be limited to no more
than one (1) full MRC for the affected Services. All
credits are exclusive of any applicable taxes or fees
charged to the Customer or collected by Cox. All
claims for service credits are subject to review and
verification by Cox. If Cox is providing any Managed
Service(s) (such as Managed Router or Managed
Wi-Fi) to Customer in addition to the underlying
transport or Internet service, Customer shall not be
authorized to receive service credits under more
than one SLA for any individual qualifying Service
Interruption.

A26. Resale Prohibited. The Services covered
by this Agreement are for Customer’s use only.

Unless expressly authorized in writing by Cox in
this Agreement or formal written amendment to
this Agreement, or as otherwise required by
applicable law, Customer shall not resell the
Service(s) (or any portion thereof) to any other
person or third party. Cox may revoke its permission
to allow resale at any time upon notice to Customer.

Notwithstanding the foregoing, Customer shall
never resell any video Services. If Cox determines
that Customer is or has resold (i) any video services
or (ii) any other Services without express written
permission in this Agreement or formal written
amendment to this Agreement, Cox may
immediately terminate this Agreement (or any
portion thereof) upon notice to Customer and
Customer shall pay the applicable termination fee.

Nothing in this Agreement shall prohibit Cox from
doing business with or attempting to do business
with any potential customer, even if any potential
customer may have been a customer of Customer
in the past or is currently purchasing services from
Customer.

A27. Assignment. Customer may not assign or
transfer any part of this Agreement without the
prior written consent of Cox, which shall not be
unreasonably withheld. Cox reserves the right to
not disclose any Customer Proprietary Network
Information (CPNI) to any third party that assumes
this Agreement from Customer. Cox may assign,
delegate or transfer this Agreement, in whole or in
part, without Customer’s consent (i) to any
corporation or other entity that controls, is
controlled by or is under common control with Cox
(each an “Affiliate”); (ii) to any corporation or other entity resulting from a merger, acquisition,
consolidation or reorganization of or with Cox; or
(iii) in connection with the sale of all or substantially all of the assets of Cox. Cox Service may be
provided by one or more Affiliates.

A28. Notices. Notices under this Agreement shall
be in writing and delivered to the persons or offices
of the parties stated herein. A written notification by Cox may include, without limitation, electronic
notice and/or notice via an invoice, billing insert or
other billing communication sent to Customer. The
effective date of any electronic notice hereunder
shall be the day that such notice was sent. The
effective date of any non-electronic notice
hereunder shall be the three (3) business days from
the date such notice was sent. The mailing
addresses of the parties are set forth below: To Cox:
at the address set forth on the Agreement, with a
copy to: Cox Communications, Inc., 6205-B
Peachtree Dunwoody Road, Atlanta, Georgia 30328,
527
15 Attn:Vice-President, Cox Business, Legal
Department; and to Customer at the address set
forth in the Agreement.

A29. Fraud or Misuse of the Services.

Customer shall not misuse the Services, Cox
Equipment, or any Cox provided software. Such
misuse includes but is not limited to: (i) violation of applicable law; (ii) use in a manner that adversely
interferes with Cox’s network or reputation; (iii) any
unauthorized or fraudulent use of or access to the
Services such as to avoid paying for Services; (iv)
use in a manner that infringes the intellectual
property or other rights of Cox or any third party
including copying, modifying, reverse engineering,
uploading, downloading or reselling any content or
software; (v) sending content or messages or
otherwise engaging in communications that are
abusive, obscene, lewd, lascivious, filthy,
excessively violent, harassing, illegal, fraudulent,
threatening, defamatory or an invasion of privacy;
(vi) modifying or tampering with Cox Equipment in
any manner other than as expressly authorized by
Cox; (vii) engaging in telemarketing, fax
broadcasting, spam, junk or other unsolicited email;
(viii) intercepting a third party’s communications or
accessing or attempting to access another party’s
account or otherwise circumvent any security
measures; (ix) uploading any virus, worm or
malicious code; (x) using automated connections
that allow web broadcasts, automatic data feeds,
automated machine-to-machine connections or
peer-to-peer file sharing; (xi) using as a substitute
or back-up for private lines, or full-time or dedicated data connections; (xii) network hacking and “denial
of service” attacks; (xiii) using unauthorized
software or devices to maintain continuous active
Internet connections when the connection would
otherwise have entered idle mode; (xiv) engaging
in ‘robocalling’ or continuous or extensive call
forwarding or long distance abuse; or (xv)auto
dialers, power dialers, any type of automatic
outbound dialing or predictive calling/dialing
system, or the functional equivalent of any of these
systems. Customer is solely liable for any misuse,
unauthorized use and for controlling access to the
Services, Cox Equipment, Customer Equipment,
and software including payment of any charges
incurred as a result of any such misuse or
unauthorized use by Customer or any end user of
the Service(s). Cox may immediately terminate this
Agreement upon notice to Customer for any
violation of this provision and Customer shall be
liable for the applicable early termination fees. Cox
shall determine, in its sole discretion, whether any
misuse is occurring or has occurred.

Cox may further disconnect Service without notice if
Cox believes the Services are being used with the
intent to defraud Cox or threaten the integrity or
security of the Cox network or facilities. This
fraudulent activity includes, but is not limited to,
fraudulently placing and/or receiving calls and/or
providing false credit information to Cox or its
representatives. Customer is responsible for payment
of all charges for Services furnished, including
charges for Services originated, or charges accepted,
at Customer’s telephone number. Customer’s
responsibility also includes all charges associated
with the fraudulent use of Services either by
Customer, its employees, any end users of the
Services, or any other users who gain access to the
Premises, the Cox Equipment, or any Customer
equipment, including, but not limited to, any
unauthorized users, who are able to “hack” or gain
unauthorized access to Customer’s network or
equipment.

A30. Shortage of Equipment or Facilities. Cox
reserves the right to limit or allocate the use of
existing facilities when it deems necessary to manage
the lack of facilities or to manage a facility shortage due to some other cause beyond Cox's control. Cox
maintains the right to apply protective controls, such
as call gapping, which selectively cancels the
completion of traffic carried over its network,
including the traffic associated with any user’s
transmission to another carrier. In addition, Cox
reserves the right to limit call duration when deemed
necessary to prevent network degradation and to
optimize network efficiency of its telephone service.

Cox will incur no liability for call interruptions
resulting from Cox’s efforts to avoid such
degradation. The furnishing of service under the
Agreement is subject to the availability on a
continuing basis of all the necessary equipment and
facilities and is limited to the capacity of Cox's fiber optic cable facilities as well as facilities Cox may
obtain from other carriers, from time to time, to
furnish service as required at the sole discretion of
Cox. The furnishing of service under the Agreement
is subject to the availability of adequate numbering
resources and may be subject to Cox's
implementation of interconnection arrangements
with the incumbent local exchange carriers.

A31. Changes. Cox, in its sole discretion, may
modify, add, supplement and/or remove any of the
528
16 General Terms and/or any related policies and
linked terms from time to time (“Revisions”) upon
written notice to Customer by any means specified
in Section A28 hereof and all such Revisions will be
effective thirty (30) days after notice is issued
(“Opt-Out Period”) unless Customer opts out as
described in this paragraph. Customer may opt out
of the Revisions by providing written notice to Cox
via email at [email protected] or via a letter sent
U.S. Mail or Overnight Delivery to the Cox Legal
Department, Attn: Litigation Counsel, 6205B
Peachtree Dunwoody Road, Atlanta, GA 30328,
stating that Customer is opting out of the Revisions.

Customer’s written notification to Cox must include
the Customer’s name, address and account number,
the name and position of the person submitting the
notification on behalf of the Customer, as well as a
clear statement of which Revisions Customer is
opting out of. Customer must submit its written
notice opting out of the Revisions within the thirty
(30) day Opt-Out Period, or Customer shall be
deemed to accept the Revisions. Further,
Customer’s continued use and/or payment for
Services after the thirty (30) day Opt-Out Period
shall also be deemed acceptance of all Revisions. If
Customer opts out of any Revisions, Cox may either
(i) immediately terminate the Agreement without
penalty or liability to Customer or (ii) provide notice to Customer that the opted-out Revisions will not
apply to Customer for the duration of the thencurrent Initial Term and/or Extended Term(s), as applicable. Until Cox provides notice of its election
of option (i) or (ii) in the preceding sentence, the
Agreement shall continue under its most recent
contract terms excluding any Revisions properly
opted out by Customer. This paragraph states
Customer’s sole and exclusive remedy for any
Revisions. Notwithstanding anything to the contrary
in this Agreement, Cox may make Revisions that it
deems are minor or concern products or services
which are not currently under contract with
Customer, and such updates shall be deemed
effective after the update is posted online, with or
without prior notice to Customer.

Cox may also update its AUP and privacy policy
from time to time, and such updates shall be
deemed effective after the update is posted
online, with or without prior notice to Customer.

Accordingly, Customer should check the AUP and
privacy policy web addresses (or the applicable
successor URLs) on a regular basis to ensure that
its activities conform to the most current version
of the policies. Cox’s action or inaction in enforcing
the AUP shall not constitute review or approval of
Customer’s or any other users’ use.

A32. DISPUTE RESOLUTION; MANDATORY
BINDING ARBITRATION; JURY TRIAL
WAIVER; CLASS ACTION WAIVER (THE
“DISPUTE RESOLUTION PROVISION”).

IF CUSTOMER FOLLOWS THE PROCEDURES SET

FORTH IN SUBPARAGRAPH (B) BELOW, CUSTOMER

HAS THE RIGHT TO OPT OUT OF THE ARBITRATION

REQUIREMENT DESCRIBED IN SUBPARAGRAPH (A)
WITHIN 30 DAYS OF THE EFFECTIVE DATE OF THE
PARTIES’ AGREEMENT OR WRITTEN NOTICE OF THE

ADDITION OF THIS DISPUTE RESOLUTION
PROVISION (THE “OPT-OUT PERIOD”).

OTHERWISE, CUSTOMER SHALL BE REQUIRED TO

SETTLE ANY DISPUTES IT MAY HAVE WITH COX

THROUGH THE FOLLOWING DISPUTE RESOLUTION
PROCEDURES.
(A). Arbitration Requirement. EXCEPT AS

OTHERWISE STATED IN THE DISPUTE RESOLUTION
PROVISION, THE PARTIES SHALL ARBITRATE —
RATHER THAN LITIGATE IN COURT — any and all
claims, disputes, or controversies between
Customer and Cox, including any parents,
subsidiaries, affiliates, officers, directors,
employees, or agents of Cox, whether based in
contract, statute, regulation, ordinance, tort
(including, but not limited to, fraud,
misrepresentation, fraudulent inducement,
negligence, or any other intentional tort) or other
legal or equitable theory (“Dispute”) that arise out
of or in any way relate to this Agreement, or any of
the Services or products that Cox provides to
Customer (including but not limited to amounts that
Cox charges Customer for Services or products
provided, any alleged breach related to the
collection, retention or disclosure of Customer’s
personal information, and any alleged violation of
Cox’s privacy policy or the AUP). The parties shall
also arbitrate any and all Disputes that arise out of
or relate in any way to any services or products
provided to Customer by Cox or any of its affiliated
entities under any other agreement. “Dispute” is to
be given the broadest possible meaning that will be
enforced.
(B). OPT OUT. CUSTOMER MAY OPT OUT OF THE

ARBITRATION REQUIREMENT DESCRIBED IN

SUBPARAGRAPH (A) ABOVE BY NOTIFYING COX OF

THAT INTENT DURING THE OPT-OUT PERIOD BY

SENDING EITHER AN EMAIL TO COX AT
529
17 [email protected] OR A LETTER SENT VIA
U.S. MAIL TO COX LEGAL DEPARTMENT, ATTN:

LITIGATION COUNSEL, 6205B PEACHTREE
DUNWOODY ROAD, ATLANTA, GA 30328, STATING

THAT CUSTOMER IS OPTING OUT OF THE

ARBITRATION REQUIREMENT DESCRIBED IN
SUBPARAGRAPH (A). CUSTOMER’S WRITTEN

NOTIFICATION TO COX MUST INCLUDE THE
CUSTOMER’S NAME, ADDRESS AND ACCOUNT

NUMBER, THE NAME AND POSITION OF THE

PERSON SUBMITTING THE NOTIFICATION ON

BEHALF OF THE CUSTOMER, AS WELL AS A CLEAR

STATEMENT THAT CUSTOMER DOES NOT WISH TO

RESOLVE DISPUTES WITH COX THROUGH
ARBITRATION. CUSTOMER’S DECISION TO OPT

OUT OF THE ARBITRATION REQUIREMENT

DESCRIBED IN SUBPARAGRAPH (A) ABOVE, IF IT

CHOOSES TO DO SO, WILL HAVE NO ADVERSE
EFFECT ON CUSTOMER’S RELATIONSHIP WITH COX

OR THE DELIVERY OF SERVICE(S) TO CUSTOMER
BY COX. IF CUSTOMER OPTS OUT OF THE

ARBITRATION REQUIREMENT DESCRIBED IN

SUBPARAGRAPH (A) ABOVE FOLLOWING THE

PROCEDURE OUTLINED HEREIN, THAT OPT OUT

WILL REMAIN IN EFFECT IF COX MODIFIES THIS

SECTION IN THE FUTURE OR CUSTOMER AGREES

TO A NEW TERM OF SERVICE UNDER THIS
AGREEMENT. HOWEVER, IF CUSTOMER ENTERS

INTO A NEW AGREEMENT WITH COX THAT

INCLUDES ITS OWN DISPUTE RESOLUTION OR

ARBITRATION PROVISION AND CUSTOMER WANTS

TO OPT OUT OF THAT PROVISION, CUSTOMER WILL

NEED TO FOLLOW THE INSTRUCTIONS IN THAT
AGREEMENT FOR OPTING OUT. Notwithstanding the
agreement to arbitrate that is described in
subsection (A) above, Customer and Cox may bring
appropriate Disputes (as defined below) against
each other in small claims court, if the Dispute falls
within the small claims court's jurisdiction, or before the Federal Communications Commission, the
relevant state public utilities commission, or any
other federal, state, or local government agency
authorized by law to hear the Dispute.
(C). EXCLUSIONS FROM ARBITRATION. THE

PARTIES AGREE THAT THE FOLLOWING SHALL
NOT BE A ‘DISPUTE’ SUBJECT TO ARBITRATION:
(1) ANY DISPUTE OVER THE VALIDITY OF ANY
PARTY’S INTELLECTUAL PROPERTY RIGHTS; (2)

ANY DISPUTE THAT ARISES BETWEEN COX AND

ANY STATE OR LOCAL REGULATORY AUTHORITY

OR AGENCY THAT IS EMPOWERED BY FEDERAL,

STATE, OR LOCAL LAW TO GRANT A FRANCHISE
UNDER 47
U.S.C. § 522(9); (3) ANY DISPUTE THAT CAN ONLY

BE BROUGHT BEFORE AN APPLICABLE FEDERAL,

STATE, OR LOCAL GOVERNMENT AGENCY SUCH AS

THE FEDERAL COMMUNICATIONS COMMISSION
(FCC); AND (4) ANY DISPUTE THAT CAN ONLY BE

BROUGHT BEFORE THE LOCAL FRANCHISE

AUTHORITY UNDER THE TERMS OF THE
FRANCHISE.
(D). Restrictions. CUSTOMER MUST CONTACT COX
WITHIN ONE (1) YEAR OF THE DATE OF THE

OCCURRENCE OF THE EVENT OR FACTS GIVING

RISE TO A DISPUTE (EXCEPT FOR BILLING

DISPUTES, ABOUT WHICH CUSTOMER MUST
CONTACT COX WITHIN THIRTY (30) DAYS AS
PROVIDED IN SECTION A1 OF THE GENERAL

TERMS), OR CUSTOMER WAIVES THE RIGHT TO

PURSUE ANY CLAIM BASED UPON SUCH EVENT,
FACTS, OR DISPUTE.
(E). Class Action Waiver. Customer and Cox agree
that all Disputes between Customer and Cox will be
arbitrated individually, and that there will be no
class, representative, or consolidated actions in
arbitration. An arbitrator appointed pursuant to this
Agreement shall not be authorized to arbitrate any
claim on a class action or consolidated basis or on
any bases involving claims brought in a purported
representative capacity on behalf of the general
public (such as a private attorney general), other
subscribers, or other persons. If Customer or Cox
brings a claim in small claims court, the class action
waiver will apply, and neither party can bring a
claim on a class or representative basis.

Furthermore, neither Customer nor Cox may
participate in a class or representative action as a
class member if the class action asserts Disputes
that would fall within the scope of this arbitration
agreement if they were directly asserted by
Customer or Cox. The parties agree that this class
action waiver is an essential part of this Dispute
Resolution Provision and that if this class action
waiver is found to be unenforceable by any court
or arbitrator then the entire Dispute Resolution
Provision will not apply to any Dispute between
Customer and Cox, except for the provisions of
subparagraph (I) waiving the right to jury trial.

This class action waiver may not be severed
from the arbitration agreement.
(F). Arbitrator Authority. The arbitration between
Customer and Cox will be binding. In arbitration,
there is no judge and no jury. Instead, the Dispute
will be resolved by an arbitrator, whose authority shall 530
18 be governed by the terms of this Agreement.

Customer and Cox agree that an arbitrator may only
award such relief as a court of competent
jurisdiction could award, limited to the same extent
as a court would limit relief pursuant to the terms
of this Agreement. An arbitrator may award
attorneys' fees and costs if a court would be
authorized to do so and may issue injunctive or
declaratory relief if that relief is required or
authorized by the applicable law, but that injunctive
or declaratory relief may not extend beyond
Customer and Customer’s dealings with Cox. An
arbitrator shall not be authorized to rule or act
contrary to law. Judicial review of arbitration
decisions is limited.
(G). Informal Dispute Resolution. Customer and
Cox agree that Customer will try to resolve disputes
informally before resorting to arbitration. If
Customer has a dispute, Customer shall first call
Cox Customer Care at the number listed on
Customer’s monthly bill statement. If the Cox
representative is unable to resolve Customer’s
dispute in a timely manner, Customer shall notify
Cox of the dispute by sending a written description
of Customer’s claim to Cox Customer Care, ATTN:

Corporate Escalation Team, 6205B Peachtree
Dunwoody Road, Atlanta, GA 30328 so that Cox can
attempt to resolve the dispute with Customer. If
Cox does not satisfactorily resolve Customer’s claim
within 30 calendar days of receiving written notice
of Customer’s claim to Cox Customer Care, then
Customer may pursue the claim in arbitration.

Neither Customer nor Cox may initiate arbitration
without first following the informal dispute
resolution procedure provided in this paragraph and
thereafter, if the dispute is still not resolved, the
party who desires to initiate arbitration must
provide the other written notice of the intent to file
for arbitration. Customer shall send written notice
of its intent to file for arbitration to Cox via U.S. mail to Cox Legal Department, Attn: Litigation Counsel,
6205 B
Peachtree Dunwoody Road, Atlanta, GA 30328. If
Cox is sending Customer a written notice of its
intent to file for arbitration, Cox will send notice to the last known address of record Cox has on file
for Customer.
(H). Arbitration Procedures. Customer and Cox
agree that this Agreement and the services Cox
provides to Customer affects interstate commerce
and that the Federal Arbitration Act, and not state
arbitration laws, applies for all Disputes. All
arbitrations shall be conducted by National
Arbitration and Mediation (“NAM”) under its
Comprehensive Dispute Resolution Rules and
Procedures as modified by this Dispute Resolution
Provision. NAM's Comprehensive Dispute Resolution
Rules and Procedures and additional information
about NAM are available on its website at
www.namadr.org or by calling 1-800-358-2550. If
the claim asserted in arbitration is for less than $75,000, the NAM Administrator will determine whether a party is to be classified as a consumer. If the claim asserted is for $75,000 or more, the arbitration will be treated as commercial in nature.

If there is a conflict between NAM's rules and this
Dispute Resolution Provision, this Dispute
Resolution Provision shall control. To initiate
arbitration, Customer must send a letter requesting
arbitration and describing Customer’s claims to Cox
at [email protected] or via U.S. mail to Cox Legal
Department, Attn: Litigation Counsel, 6205B
Peachtree Dunwoody Road, Atlanta, GA 30328.

Customer must also comply with the NAM's rules
regarding initiation of arbitration. Cox will pay all
filing fees and costs for commencement of
arbitration, but Customer will be responsible for
Customer’s own attorneys' fees and costs unless
otherwise determined by the arbitrator pursuant to
the terms of this Agreement or applicable law. Cox
will not seek to recover its fees and costs from
Customer in the arbitration, even if allowed under
the law, unless Customer’s claim has been
determined to be frivolous. The arbitration will be
held in the county of the billing address where Cox
provided Customer service and either party may
appear either in person or by telephone.
(I). Jury Trial Waiver. If for any reason the
arbitration requirement described in subparagraph
(A) is found to be illegal or unenforceable, or if
Customer opts out of this arbitration per
subparagraph (B) above, and/or a claim is brought
that is excluded from arbitration as described in this
Dispute Resolution Provision, the parties expressly
and knowingly WAIVE THE RIGHT TO TRIAL BY JURY
to the fullest extent permitted by applicable law.

Customer acknowledges that a jury trial waiver
means that a judge rather than a jury will decide
the dispute(s) between Customer and Cox if, for any
reason, the dispute is not subject to arbitration.
(J). Survival. This Dispute Resolution Provision
survives the termination of the Agreement. If
Customer brings a claim against Cox after termination
of the Agreement that is based in whole or in part on
events or omissions that occurred while Customer was
a Cox customer, this Dispute Resolution Provision
531
19 shall apply.

A33. Miscellaneous. This Agreement with
Customer includes the terms and conditions set
forth in the CSA, MSA or other agreement
incorporating these General Terms, whichever is
applicable, these General Terms, the tariffs (as
applicable), the SGs (as applicable), and any other
documents referenced in the Agreement or
otherwise executed by the parties. The
aforementioned documents constitute the entire
agreement between Cox and Customer for the
Services and Cox Equipment. While all of these
documents are intended to be read together in a
consistent manner, in the event of any conflict
between or among the provisions of this Agreement,
the tariffs, the SGs, and the documents referenced
herein, the documents shall prevail in the following
order (except where applicable law requires the
tariff to take precedence): (i) the terms and
conditions set forth in this Agreement; (ii) the
applicable Cox tariff or SG. In the event of any
conflict between these General Terms and any
terms and conditions in the CSA, MSA or any other
written agreement in which these General Terms
are incorporated, whichever is applicable, these
General Terms shall control. Capitalized Terms used
in these General Terms and not defined herein will
have the meanings ascribed to such terms in the
Service Terms, as applicable. If any term of this
Agreement is, to any extent, illegal, otherwise
invalid, or incapable of being enforced, such term
shall be excluded to the extent of such invalidity or
unenforceability; all other terms hereof shall remain
in full force and effect; and, to the extent permitted
and possible, the invalid or unenforceable term shall
be deemed replaced by a term that is valid and
enforceable and that comes closest to expressing
the intention of such invalid or unenforceable term.

The invalidity or unenforceability of any term or
condition of this Agreement shall not affect the
validity or enforceability of any other provision. This Agreement and the obligations of the parties shall
be subject to modification by Cox to comply with all
applicable laws, regulations, court rulings, and
administrative orders, as amended. Customer
agrees that State and Federal regulations may apply
to Services and that, in the event of any change to
such regulations, Services may be modified to be
consistent with, and Customer’s use of Services
must be consistent with, such regulations. Except
as otherwise provided herein, this Agreement may
be modified, waived, or amended only by a written
instrument signed by the parties. The rights and
obligations of the parties under this Agreement shall
be governed by the laws of the State where Services
are installed. The failure by either party to exercise
one or more rights provided in this Agreement shall
not be deemed a waiver of the right to exercise such
right in the future. The relationship created between
the parties by virtue of this Agreement shall be solely that of vendor-purchaser as independent contractors
and that no agency, joint venture, or joint business
relationship shall be deemed created hereunder.

There are no third party beneficiaries to this
Agreement, except as expressly provided in this
Agreement. Customer’s acceptance of this Agreement
occurs upon the earlier of: (a) execution of this
Agreement by Customer or Customer’s
representative, including without limitation,
Customer’s or Customer’s representative’s electronic
signature on this Agreement; (b) Customer’s use of
any Service provided under this Agreement; or (c)
Customer’s retention of any Cox Equipment for more
than thirty (30) days after Customer’s receipt of such
Cox Equipment. Except as expressly set forth in this
Agreement, neither party shall use, publicize, or issue any press release which includes the name,
trademarks, or other proprietary identifying symbol of
the other party or its affiliates, without the prior
written consent of such other party.

A34. Scope of Agreement. This Agreement is for
Cox to provide Services. Unless otherwise explicitly
agreed to in the Agreement, this Agreement is not for
Cox to perform any construction, alteration,
demolition, installation, repair or maintenance work
of any kind paid for in whole or in part out of public
funds. Any construction, alteration, demolition,
installation, repair or maintenance work that Cox may
perform in connection with or related to this
Agreement will be solely to expand or maintain Cox’s
own facilities to provide Services to Customer and/or
to other Cox customers, at Cox’s option. All Cox
facilities, including without limitation any such newly constructed facilities will be and shall remain the sole property of Cox. Customer shall have no ownership
over, control of, or exclusive rights to use, such Cox
facilities.

A35. Regulatory Authority. The Services may be
subject to filing with the regulatory authority with
jurisdiction over the Services. If the Agreement is
required to be filed, Customer shall execute such
additional forms as are reasonably necessary to
permit Cox to make an appropriate filing. In some
states, the Agreement may not be effective until
approved by such regulatory authority. If this
Agreement, any Services, and/or the related filing
532
20 documents are not approved by the applicable
regulatory authority, Cox may terminate this
Agreement or Service(s), as applicable. This
Agreement and the obligations of the parties shall be
subject to modification to comply with all applicable
laws, regulations, court rulings, administrative
orders, and State public utility commission rules, as
required.

A36. Ownership. Except as expressly set forth in
the Agreement, the Agreement does not grant either
party any rights, implied or otherwise, to the other
party’s intellectual property. As between the parties,
Cox owns all rights, title and interest in and to the
Services.

A37. Feedback. If Customer provides Cox with
feedback and/or suggestions about the Services,
then Customer hereby grants Cox an irrevocable,
perpetual, sublicensable right and license to fully
exploit and use that feedback and suggestions for any
purpose whatsoever, including, but not limited to,
incorporation into the Services, resale and/or the
creation of derivative works.

A38. Third-Party Provided Service. In the event
Cox utilizes a third-party provider to furnish the
Services to Customer, Customer acknowledges and
agrees any terms and conditions imposed on Cox by
such third-party provider may take precedence over
any term and conditions described within this
Agreement, including, but not limited to, any
technical specifications, performance specifications,
service type, Service Level Agreements, or
installation timeframes, as determined by Cox in its
sole discretion.

For any Service provided via a third-party provider,
Cox may pass through any outage credits Cox
actually receives from the applicable third-party
provider, not to exceed the Credit Allowance amount
as defined by this Agreement. In the event Customer
terminates a Service provided by a third-party
provider other than for breach by Cox, Customer shall
be responsible for any third-party provider fees
assessed and sent to Cox, in addition to any other
early termination liability described in this
Agreement.

A39. Artificial Intelligence. Cox may utilize
artificial intelligence (AI) technologies to enhance
the Services and improve user experience. The AI
systems employed may include, but are not limited
to, machine learning algorithms, natural language
processing, and automated decision-making tools.
533
21 B. Terms and Conditions Applicable to
Internet and Network Services
In addition to all provisions in Section A above, the
provisions of Section B shall also apply to all
Internet and network Service(s):

B1. Internet Services. FOR COX INTERNET

SERVICES, IN ADDITION TO THIS PROVISION

AND OTHER PROVISIONS CONTAINED IN
THESE GENERAL TERMS, THE “COX INTERNET
SERVICE DISCLOSURES” LOCATED AT
www.cox.com/internetdisclosures SHALL
APPLY. Cox Internet Services may consist of cable
modem based Service and/or fiber delivered optical
Internet Services. For each Internet Service, Cox
shall provide Customer with Internet bandwidth
connectivity, access, modem/gateway configuration
(if applicable), and a static or dynamic IP address (if applicable) together with installation of the Services
as provided under this Agreement. Cox reserves the
right to change an IP address at any time for any
reason. Customer shall be responsible for providing
VPN software, firewalls, and related products and all
other equipment beyond the Demarcation Point
required to use the Services. For cable-modem
delivered Internet Services, the bandwidth speeds
identified for each Service may vary and such
bandwidths shall be provided consistent with
industry standards. Use of data, Internet, and web
conferencing/web hosting Services shall be subject
to Customer and any end users complying with the
AUP which may be found at
coxbusiness.com/acceptableusepolicy. Cox may
change the AUP from time to time during the Term.

Customer’s continued use of the Services following
an AUP amendment shall constitute acceptance of
the revised AUP. Cox may terminate or suspend
Service if Cox reasonably determines that Customer
or its users are violating the AUP. For cable modem
delivered Internet Services, Cox will supply a cable
modem (“Cox Provided Modem”) which may be
subject to a one-time modem activation charge and
a monthly modem rental fee, or Customer may
provide its own modem (including through purchase
from Cox if offered by Cox to Customer), provided
that the Customer provided modem meets the
requirements set forth below. The one-time modem
activation fee and monthly rental fee for a Cox
Provided Modem may be described at
coxbusiness.com/cbsurchargesandfees. The onetime modem activation fee and monthly rental fee for a Cox Provided Modem is subject to change from
time to time. Customer shall not tamper with, or
attempt to reprogram the modem, including, but not
limited to, “uncapping” the modem or affecting its
bandwidth settings. Cox may terminate Internet
Service to any modem that has been altered
following programming or installation by Cox. The
Cox Provided Modem shall be deemed “Cox
Equipment” as defined in these General Terms and
title shall remain with Cox at all times. Cox may
employ reasonable network management practices
to address bandwidth usage.

B2. Equipment Requirements For Customer
Provided Modem. Customer may rent a cable
modem from Cox or Customer may use their own
cable modem with Cox Internet Service, provided
that Customer’s cable modem is 1) compatible with
the applicable Cox Internet Service; 2) Compliant
with DOCSIS or other applicable transport protocol;
3) reasonably clean and sanitary; and 4) in good
working order. Please contact Cox Customer Care if
you need more information. If Customer attempts
to use a modem that is not certified for use and
compatible with the applicable Cox Service(s),
and/or is not in good working order, and such use
results in additional cost or expense to Cox, Cox
reserves the right to charge Customer an
installation or repair fee.

B3. IP Address/Domain Name Registration.

Cox allocates IP addresses to Customer according
to InterNIC guidelines. All IP addresses assigned by
Cox must be relinquished by Customer upon the
expiration or termination of this Agreement. IP
addresses are subject to the IP policy in the AUP.

Domain name registrations are subject to rules
promulgated by the applicable domain name
registrar, which may be amended from time to time.

Customer shall consult its domain name registrar
for complete information. Customer is responsible
for payment and maintenance of domain name
registration.

B4. Cox Optical Internet with Burst Option
(“Burstable Service”). Charges for the Cox Optical
Internet with Burst Option (“Burstable Service”)
consists of three (3) components: (a) a nonrecurring
charge (“NRC”) per connection (unless waived); (b)
a fixed monthly recurring charge (“MRC”) based on
the Committed Information Rate (CIR) specified in
the Customer’s Agreement; and (c) a periodic charge
based on usage, to the extent that usage exceeds the
CIR specified in the Customer’s Agreement.

Customer’s usage of Burstable Service is
534
22 calculated by measuring samples of Customer’s
“Send Traffic” and “Receive Traffic” every five (5)
minutes for the previous five (5) minute period. At
the end of each month of the Term, the “Send Traffic”
and “Receive Traffic” sample sets for that month are
separately arranged from highest to lowest and the
top five percent (5%) of samples for “Send Traffic”
and “Receive Traffic” are discarded. The highest
remaining sample (either “Send Traffic” or “Receive
Traffic”) is the Ninety-Fifth (95th) Percentile. If the Ninety-Fifth (95th) Percentile is a fraction of a
megabit, it is rounded to the next full megabit and is
compared to the CIR. If the Ninety-Fifth (95th)
Percentile is greater than the CIR, Customer will, in
addition to being billed for the CIR as described in
(b) above, be billed for the difference between the
CIR and the Ninety-Fifth (95th) Percentile and such
difference shall be billed at the price per megabit
described in the Agreement multiplied by the number
of megabits. The Burstable Service is available on a
best efforts basis only. The ability to burst is subject to availability and is limited to the burstable limits set forth in the Agreement.

B5. Customer Purchased WiFi Service.

Customer is responsible for providing the equipment
necessary for Customer, and its end users, to
access the Wi-Fi Service purchased by Customer. If
Customer makes the Wi-Fi Service available to other
persons for use, unless expressly provided
otherwise, Customer shall implement an end user
license agreement approved by Cox for acceptance
by those end users in connection with the Wi-Fi
Service access. Customer acknowledges and agrees
that because Wi-Fi Service is wireless Internet
access, Customer’s, or its end users’, transmissions
could be intercepted by unauthorized persons and
Customer assumes all risks associated with offering
access to, and/or use of, the Wi-Fi Service provided
by Cox under this Agreement. Customer agrees to
waive all claims against Cox and the Cox Related
Parties for any damage, loss or liability Customer
may suffer due to any person monitoring,
intercepting, disclosing, or corrupting Customer’s or
its end users’ communications. Without limiting the
foregoing, Cox and the Cox Related Parties have no
liability to Customer or any end users using the WiFi Service through Customer for damage or loss to any computers or software, including losses or
damages caused by viruses that may infect
Customer’s or any end user’s network, computers,
devices (e.g., tablets, wireless phones or other
peripherals), or other facilities through use of the
Wi-Fi Service. When Customer uses the Wi-Fi
Service, Cox, and/or any third party vendor utilized
by Cox, may track and store Customer’s IP address
and the MAC address of the device accessing the
Wi-Fi Service. Customer hereby consents to Cox
and/or the Cox Related Parties’ collection, use,
transmission, processing and maintenance of such
data in connection with provision of the Wi-Fi
Service. Cox will provide this information to law
enforcement personnel if requested pursuant to
lawful subpoena or court order. ALTHOUGH COX

HAS TAKEN COMMERCIALLY REASONABLE STEPS

TO PROVIDE A SECURE SYSTEM WITHIN

LIMITATIONS EXISTING IN NETWORK AND

COMPUTER INFRASTRUCTURE, COX MAKES NO

REPRESENTATION OR WARRANTY THAT (A)

COMMUNICATIONS OVER THE WI-FI SERVICE

SHALL BE SECURE FROM UNAUTHORIZED ACCESS,

INCLUDING WITHOUT LIMITATION, MONITORING,

THEFT OF DATA OR CORRUPTION OF CONTENT, OR

ANY OTHER DAMAGE AND (B) THAT CUSTOMER

AND/OR ANY END USERS USING THE WI-FI

SERVICES WILL NOT RECEIVE A VIRUS OR OTHER

MALWARE THAT DAMAGES SUCH USERS

COMPUTER(S), DEVICE(S) OR NETWORK
FACILITY(IES). CUSTOMER ACKNOWLEDGES THE

RISKS ASSOCIATED WITH ACCESS TO THE

INTERNET AND HEREBY RELEASES AND WAIVES

ALL CLAIMS AGAINST COX AND ANY COX RELATED

PARTY FROM AND FOR ANY LIABILITY FOR

UNAUTHORIZED ACCESS, FOR SECURITY

BREACHES AND/OR ALL DAMAGES ARISING FROM

SUCH UNAUTHORIZED ACCESS, LOSSES OR
DAMAGES.

B6. Cox Internet Gateway, Guest Wi-Fi, and
External Distribution. If Customer has purchased
Cox Internet (CBI) Service, Cox may rent to
Customer, upon Customer’s request, an all-in-one
electronic device consisting of a cable modem and a
Wi-Fi enabled LAN-side router (a “Gateway”), which
shall enable Wi-Fi Service as described above (“Cox
Internet Gateway Service” or “CBIG”) at the
Premises. If Customer requires additional Gateways
from Cox, Cox will rent to Customer (i) a Gateway
for the CBIG Service and (ii) a separate, dedicated
Gateway to facilitate the provision of Wi- Fi Services
for Customer’s end users and/or to otherwise
expand the Wi-Fi coverage area for Customer’s
premises (“Guest Wi-Fi Service”). Customer agrees
to pay Cox a non-recurring charge for the installation
and activation of each Gateway and a monthly
recurring charge for the rental of each Gateway
from Cox. Optimal Wi-Fi end user experience for
CBIG and Guest Wi-Fi Services shall
535
23 not exceed fifty (50) simultaneous sessions per
Gateway. Cox will not provide troubleshooting
assistance directly to Customer’s end users or for
Customer’s end users’ devices. Wireless coverage
area, signal strength, and speed of the CBIG,
Managed Wi-Fi, and Guest Wi-Fi Services may vary
and may be affected by building construction,
topography, layout, and other factors. Cox does not
guarantee Customer’s wireless network’s security
against all forms of unauthorized network access.

Customer is expressly prohibited from charging a
fee to (including but not limited to any one-time fee,
hourly, daily, monthly or other subscription or
usage charges), or receiving consideration of any
type from, any end user in connection with the
Managed Wi-Fi, Wi-Fi Services or Guest Wi-Fi
Services. Cox shall retain all ownership rights in and
to all Cox Equipment including, but not limited to,
the Gateway(s), modems, switches, and/or access
points (“AP”), as the case may be and Customer
shall return all Cox Equipment to Cox in good and
working condition and in the manner described in
these General Terms. All Cox Equipment provided
to Customer must be returned upon service
termination to avoid additional charges to
Customer. Cox reserves the right to send software,
firmware, code updates, downloads and/or other
programs to the Gateway, and may utilize the
Gateway, or any other Cox Equipment with certain
Wi-Fi capabilities, and may utilize such equipment
and attached wiring to distribute external Wi-Fi
signals for the deployment of Cox Wi- Fi and/or Cox
Cable Wi-Fi, and related similar services now or
hereafter offered by Cox (such external distribution
is referred to herein as, the “Cox and Cable Wi-Fi
Feature”). Customer will have the right and the
opportunity, at any time, to opt out of the use of its
Gateway or other Cox Equipment by Cox for the Cox
and Cable Wi-Fi Feature, through the customer
account management tools located at
www.cox.com, or by calling Cox Customer Care at
the telephone number listed on Customer’s bill.

Customer hereby agrees not to include any
descriptions or references to “Cox”, “Cox Business”,
“Cox Communications”, “Cox Enterprises”, or any
derivation thereof in the Service Set Identifier
(SSID) naming convention for Customer’s wireless
network(s) at the Premises. Cox shall install the
Gateway(s) and/or other Wi-Fi related Cox
Equipment, as the case may be, in certain areas
within the Premises to optimize network coverage;
however, wireless coverage areas may change after
installation due to Customer’s relocation of
equipment and
environmental factors (i.e., neighboring wireless
networks and other relevant factors). Customer
must provide Cox with electric power outlets in
sufficient quantity and voltage/power for the Cox
Equipment. Customer must also provide Cox with
adequate space on a flat countertop or side wall at
the Premises to install the Gateway(s), with
minimum dimensions of 8” x 24” per Gateway, and
any other space necessary to permit the placement
and adequate operation of any Cox Equipment for
the provision of any Wi-Fi related Service purchased
by Customer. Cox will provide Customer with basic
remote support of the CBIG and Guest Wi-Fi
Services at no charge. Basic remote support
includes the following: Remote Access
Enabled/Disabled, Primary SSID and password
resets, Backup and Restore Gateway configuration
files in “My Account”, IP configuration, Wi-Fi
Enabled/Disabled, Bridge Mode or Router Mode
configuration, Time Zone/Daylight Savings, and
Firewall Enabled (Medium or Low).

B7. Managed Wi-Fi. In the event that Customer
has purchased Managed Wi-Fi Private Package,
Managed Wi-Fi Guest Package, Managed Wi-Fi Total
Package, or any Managed Wi-Fi Complex or K-12
Managed Wi-Fi service or any other similar product
offering (referred to individually and collectively, as “Managed Wi-Fi Service(s)”) this provision shall
apply. To receive Managed Wi-Fi Services,
Customer must purchase, and maintain in place,
Cox Internet Services at all times during the Term,
it being understood that the Managed Wi-Fi Services
cannot operate without Internet Services. The
specific Cox Internet Service(s) required may vary
depending upon the type of Managed Wi-Fi product
purchased, and other determining factors. Any
termination or discontinuation of such Internet
Services shall cause an immediate termination or
discontinuation of the Managed Wi-Fi Services,
which will be subject to the applicable early termination fees. In connection with the Managed Wi-Fi Service,
Cox (or a third party provider or an affiliate,
contractor or subcontractor of same) will install
certain equipment upon the Premises, which
equipment shall be owned by Cox and considered
Cox Equipment. Installation costs and/or
nonrecurring charges may apply upon installation,
and Customer may incur additional costs or charges
after installation for configuration changes, addition
or relocation of access points, changes to the
product platform, or any other changes requested
by Customer in connection with the Managed Wi-FiServices. Unless otherwise agreed to in writing by 536
24 Cox, Customer shall implement an end user license
agreement, or ‘splash page’ approved by Cox for
acceptance by all end users of the Managed Wi-Fi
Services. Cox will provide a portal to Customer as
part of the Managed Wi-Fi Services (with a cloudbased ‘User Guide’ for the portal made available) to permit Customer to self-manage certain aspects of
the Wi-Fi network and review certain reports. The
portal will require a login by Customer. When
Customer uses the Managed Wi-Fi Services, Cox,
and/or any third party provider utilized by Cox, may
track and store Customer’s IP address and the MAC
address of the device accessing the Managed Wi-Fi
Services. Customer hereby consents to the
foregoing collection, use, transmission, processing
and maintenance of such data in connection with
provision of the Managed Wi-Fi Services. Cox shall
have no responsibility or liability with respect to any end users’ computers or devices (e.g., tablets,
wireless phones or other peripherals) connecting or
failing to connect to Customer’s network. The
Managed Wi-Fi Services purchased by Customer
may include Content Filtering as a product feature
if purchased by Customer. "Content Filtering" is a
feature that restricts network user access to
websites that pose a heightened risk of harm to the
network and/or end user devices or are otherwise
objectionable, such as pornography sites, sites that
distribute malware, and sites that distribute
unlicensed content. The solution is designed to filter
web traffic requests leveraging a managed set of
objectionable categories and reputations derived
from McAfee's Global Threat Intelligence system
independently of Cox. While the intelligence system
is continually updated to identify new sites for
filtering, there is no guarantee that new threats or
objectionable sites will not appear before they are
identified and filtered. The Content Filtering feature
is provided “as-is” and without warranty of any kind,
express or implied, and is accepted fully at the risk
of Customer. Neither Cox, nor its contractors, nor
any third party provider or affiliate or contractor of
same who installs or provides any portion of the
Managed Wi-Fi Services, will be liable for any loss,
expense or damage, of any nature whatsoever,
which may arise out of the operation or lack of
operation of the content filtering component of the
Managed Wi-Fi Services, or the restriction or
blocking, or failure to restrict or block any selected
content, data or browsing, and Customer hereby
unconditionally waives any and all claims against
such parties related to the foregoing.

The provision of Managed Wi-Fi Services shall also
be subject to all other terms and conditions in the
Agreement related to the provision of Wi-Fi Services
generally. The parties acknowledge and agree that
Cox reserves the right to suspend, modify, or
terminate the Managed Wi-Fi Services or any part
thereof, either temporarily or permanently, without
notice. Cox reserves the right to add or remove
features and capabilities from the Managed Wi-Fi
Services, and some features may only be available
to Customer at an additional cost.

B8. Managed Router. If Customer purchases
Managed Router Services of any type, which may
include Managed Router with Advanced Security
Services or any other similar product offering
(referred to individually and collectively, as
“Managed Router Service(s)”), this provision shall
apply. To receive Managed Router Services,
Customer must purchase, and maintain in place at
the Premises, Cox Internet Services and/or Cox
Networking Services at all times during the Term, it
being understood that the Managed Router Services
cannot operate without such underlying Cox
Services. The specific Cox Internet Service(s)
and/or Cox Networking Services that are required
may vary depending upon the type of Managed
Router product purchased, and other determining
factors. Any termination or discontinuation of such
Cox Internet Services and/or Cox Networking
Services may result in an immediate termination or
discontinuation of the Managed Router Services,
which may be subject to the applicable early
termination fees. In connection with the Managed
Router Services, Cox (or a third party provider or an
affiliate, contractor or subcontractor of same) will
install certain equipment, which shall include a
router (referred to herein as the “Router”) upon the
Premises, which equipment shall be owned by Cox
and considered part of the Cox Equipment.

Installation costs and/or nonrecurring charges may
apply. Customer will not alter or tamper with the
Managed Router Service, the Router or any other
Cox Equipment unless expressly authorized in
writing by Cox to do so. As part of the Managed
Router Service Customer will be required to
maintain passwords for Customer’s end user
accounts through Customer’s authentication server
to provide for remote access. Cox will make
available a VPN End User Guide (or other guides) to
Customer that outline the use of the Managed
Router Service, and Customer agrees not to use the
Service in violation of same. Customer agrees to
provide (a) Cox with the appropriate access to the
537
25 Premises, including the Router installation location, at an agreed upon time to install and turn up the
Router; (b) all LAN equipment to connect to the
Router, which include, but is not limited to, switches
and servers; (c) Cox with the necessary connections
from the Router to the Customer LAN (switches,
other equipment) to ensure that the Router can
adequately support the Customer LAN deployment;
(d) a secure and safe location for placement of the
Router and any other Cox Equipment where damage
can be prevented; and (e) Cox with an appropriate
point of contact that will be available at all times to provide necessary access, to answer questions, and
provide relevant Customer information about the
site survey, configuration requirements, and any
applications that are expected to be supported
through the Router. Customer shall notify Cox of
any breach of security of which it becomes aware,
and which may have an impact on Cox’s network or
provisioning of the Managed Router Services. The
parties acknowledge and agree that Cox reserves
the right to suspend, modify, or terminate the
Managed Router Services or any part thereof, either
temporarily or permanently, without notice. Cox
reserves the right to add or remove features and
capabilities from the Managed Router Services, and
some features may only be available to Customer at
an additional cost. Customer agrees that Cox will
not be liable for any damages resulting from any
modification or cessation of the Managed Router
Services. Use of the Managed Router Service(s) is
subject to Cox’s third party provider’s VeloCloud
End User Subscription Agreement posted at
https://www.velocloud.com/company/subscription/
and Data Processing Addendum at
https://www.vmware.com/content/dam/digitalmar
keting/vmware/en/pdf/downloads/eula/vmwaredata-processing-addendum.pdf and are incorporated into the Agreement by these
references (collectively, “VeloCloud Terms”). In the
event of a conflict between the VeloCloud Terms and
any other term or condition of the Agreement, the
VeloCloud Terms shall control with respect to the
purchase and/or use of the Managed Router
Services.

B9. Managed SD-WAN. If Customer purchases
Managed SD-WAN Services of any type or any other
similar product offering (referred to individually and
collectively, as “Managed SD-WAN Service(s)”), this
provision shall apply. Use of the Managed SD-WAN
Service(s) is subject to the VeloCloud Terms. In the
event of a conflict between the VeloCloud Terms and
any other term or condition of the Agreement, the
VeloCloud Terms shall control with respect to the
purchase and/or use of the Managed SD-WAN
Services.

B10. Wavelength Service Best Effort
Restoration Feature. The Cox Wavelength
network allows for automatic restoration of
Wavelength services in certain instances. If a
Wavelength service experiences a fiber cut or other
major outage, the Wavelength service may be
automatically rerouted across another non-affected
path, if available. Once the Wavelength service has
been restored, traffic will revert to the original path.

Any Wavelength service with automatic traffic
rerouting shall not be considered a protected or
enhanced Wavelength service. Automatic traffic
rerouting is a best-effort feature provided at no
additional cost as a potential operational benefit to
Customer. Cox shall be subject to no liability, and
Customer shall not be entitled to any credits, in the
event the automatic restoration described in this
Section B10 fails to occur. If Customer purchases
diverse routes to the applicable Wavelength from
other service providers and wants to deactivate this
automatic restoration feature, Customer must
inform Cox in writing and request deactivation.
538
26 C. Terms and Conditions Applicable to Voice
and Tariffed Services
In addition to all provisions in Section A above, the
provisions of Section C shall also apply to all Voice
Service(s):

C1. Voice Services Generally. “Voice Service(s)”
or “voice service(s)” shall mean the following Cox
Business Services: Telephony Basic, Centrex,
VoiceManager, IP Centrex, PRI Trunks, SIP Trunks,
VoIP, any RingCentral Services, and any other voice
telephone service or feature. Voice Services are
subject to change from time-to-time by Cox in its
sole discretion. Upon at least thirty (30) days prior
written notice to Customer, Cox may discontinue,
change, or modify certain Voice Services, and
certain capabilities or features associated with Voice
Services, including without limitation how certain
features associated with Voice Services are
accessed.

If Cox transitions Voice Services to a different
network platform, or if Cox performs certain
maintenance or upgrade activities, or for any other
reason as determined by Cox in its sole discretion,
Cox may itself, or request the Customer, add,
change or modify certain equipment or software at
Customer’s Premises in order for Customer to
continue to receive the Voice Services.

If Customer purchases RingCentral Services,
Customer and its use of such RingCentral Services
shall also be subject to the terms set forth at
https://www.ringcentral.com/legal.html (the
“RingCentral T&Cs and Policies”). In the event of
any conflict between the RingCentral T&Cs and
Policies (including any additional agreements,
attachments, weblinks, terms, guidelines, codes,
and/or policies set forth therein) and this
Agreement (including, without limitation, the
Service Terms, the General Terms, and the AUP),
the RingCentral T&Cs and Policies shall govern and
control.

C2. Telephone Numbers. Cox will reserve the
telephone number(s) for Customer’s new telephone
Voice Service. Reserved telephone numbers may
change prior to the time of installation of service.

Customers should not use, publish or advertise
reserved telephone numbers until service has been
activated. Customer is solely responsible for any
expense or loss resulting from Customer’s use,
publication or dissemination of these telephone
numbers. The Customer has no property right in the
telephone number(s) associated with Cox telephone
Voice service, however, if Customer ports telephone
numbers from another carrier to Cox, subject to
federal or state law, or telephony industry guidelines, Cox will use such numbers with Customer’s telephone
Voice Service. After activation of service, Cox
reserves the right to change Cox assigned telephone
numbers subject to federal or state law, or telephony
industry guidelines. Additional terms and conditions
related to telephone numbers are contained in Cox’s
local exchange tariffs or if applicable, in the SGs
(defined below).

If Customer purchases RingCentral Services,
Customer shall be subject to the “RingCentral
Numbering Policy”
(https://www.ringcentral.com/legal/policies/numberi
ng-policy.html) included as a part of the RingCentral
T&Cs and Policies. In the event of any conflict
between this Section C2 and the RingCentral
Numbering Policy, the RingCentral Numbering Policy
shall govern and control.

C3. Tariffs/Service Guides. If Customer is
purchasing any Service that is regulated by the FCC
or any State regulatory body (“Regulated Service”),
then Customer’s use of such Regulated Service is
subject to the regulations of the FCC and the
regulatory body of the State in which the Customer
location receiving the Regulated Service is located
(which regulations are subject to change), as well
as the rates, terms, and conditions contained in
tariffs on file with State and Federal regulatory
authorities. For States where the Regulated Service
is de-tariffed, the Regulated Service is provided
pursuant to the rates, terms and conditions for the
Cox Service Guides for that State (the “SG”), which
may be found at http://www.cox.com/phonetariffs
and which terms are incorporated herein by
reference. Tariffs and the SG apply to both
residential and business services even if designated
as residential on the web addressed referenced in
the preceding sentence. Cox may amend such
tariffs and the SG and the Regulated Service shall
be subject to such tariffs, or, if applicable, the SG,
as amended. Customer must disclose to Cox if
Customer intends to use the Regulated Services
with payphone service. The tariffs and the SG
contain cancellation or termination fees due in the
event of cancellation or termination (including
partial termination) of a Regulated Service prior to
the Term in the Agreement. Termination fees
include, but are not limited to, nonrecurring
charges, charges paid to third parties on behalf of
Customer, and the monthly recurring charges for
539
27 the balance of the Term.

C4. 911 Access. Customer shall provide notice to
Cox (i) at the time of execution of this Agreement
or (ii) during the Term, at least 30 days in advance,
if the Services are to be used to provide 911, E911,
or NG911 capabilities to a public safety answering
point, statewide default answering point, or
appropriate local emergency authority
(collectively “911 Access”). Cox may terminate
this Agreement without liability as to any Services
used to provide 911 Access at any time and for
any reason by providing at least sixty (60) days’
notice to Customer. Voice Services and Cox
Equipment shall not be used for 911 Access prior
to Cox’s complete installation and activation of
Services.

C5. Usage and Additional 911 Access Terms.

THE TERMS AND CONDITIONS ABOUT COX’S 911

AND USAGE PRACTICES AT THE FOLLOWING LINK
SHALL APPLY AND ARE INCORPORATED HEREIN:
coxbusiness.com/e911. If Customer purchases
RingCentral Services, Customer and its use of the
RingCentral Services shall be subject to
RingCentral’s Emergency Services Policy
(https://www.ringcentral.com/legal/emergencyservices.html) (the “RingCentral Emergency Services Policy”) included as a part of the
RingCentral T&Cs and Policies. For RingCentral
Service, Customer is responsible for maintaining
accurate Customer information related to 911 in
the RingCentral platform. In the event of any
conflict between this Section C5 and the
RingCentral Emergency Services Policy, the
RingCentral Emergency Services Policy shall
govern and control.
911 Registered Address Location. All Voice
Services have at least one registered physical
address for 911 purposes. All Voice Services, except
for those explicitly described as being non-mobile
nomadic (capable of being used in multiple fixed
locations), provided under this Agreement are only
intended for use at the single registered physical
address installed by Cox. If Customer relocates
some or all of the telephones provided with the
telephone Service under this Agreement, it is
Customer’s sole responsibility to notify Cox in order
to update 911 location information and there may
be a delay for the Customer’s new address to be
updated. In addition, customers can enter
enhanced location information (for example, with
floor or office in an office building) for 911 purposes through the MyAccount portal. Customers are solely
responsible for inputting and/or verifying their
enhanced location information via the MyAccount
portal. VoiceManager IP Centrex Service customers
do not have access to enhanced location information
or non-mobile nomadic features in all areas, in which
case, Cox will only provide E911 emergency agencies
the billing telephone number and address associated
with that number. If Customer is using a Private
Branch Exchange (PBX) in connection with the
Services, Customer must consult with Cox and ensure
that the PBX provides Cox the telephone number and
location information the Customer wishes to be
provided to agencies receiving E911 emergency calls.

The telephone number and location information
choices available to Customer if using a PBX may
vary, depending upon the services ordered, but will
default to the billing telephone number if not
otherwise specified.

For all voice services, which are expressly described as being non-mobile nomadic in nature (for example,
Teleworker, National Number with Teleworker, or any
IP Centrex service utilizing a third-party unified
communications app, such as Cisco WebEx or
Microsoft Teams), customers have the ability to enter
specific location information for addresses in the
United States in addition to the billing address into
the ALI database and are solely responsible for
inputting and/or verifying their specific location
information. Customer shall ensure that the specific
location information for 911 purposes remains correct
and current at all times, including, without limitation, for voice calling applications, teleworker, and other
remote calling features. Customers using Cox
products or a third-party unified communications app
relying on Cox databases will enter their specific
location information for 911 purposes via MyAccount.

Integration with unified communications apps can
vary and users may receive differing prompts and
amounts of prompting to update their specific location
information for 911 purposes. Regardless of app
prompts, Cox routes all such 911 calls based on the
information contained in the specific location
information, accessible via My Account. Customers
shall refer to the user materials provided by Cox,
available at http://www.coxbusiness.com/starthere,
to ensure that their unified communications apps
settings are configured properly to work with Cox
services. In these instances, Cox will store and
process the location information in My Account.

Some customers may choose to rely on cloud-based
unified communications apps, instead of Cox, to
540
28 serve as their virtual Multi-Line Telephone System
(MLTS) operator and handle certain 911 functions.

For example, customers with Cloud Voice for
Microsoft Teams have selected Microsoft Teams as
their virtual MLTS operator, so Microsoft Teams is
responsible for complying with MLTS regulatory
requirements, such as, but not limited to, Kari’s
Law dialing and notification requirements
(ensuring that users are not required to dial any
digits before 911 to access emergency services
and that a notification is sent to a centralized
contact whenever a 911 call is placed); collecting,
storing, and processing 911 location information;
and routing 911 calls to a 911 operator or PSAP.

Cox does not guarantee or warrant that virtual
MLTS systems are compliant with FCC 911
requirements or will route 911 calls properly. In
addition, Cox, at its sole discretion, may pass
through to Customer and Customer agrees to pay
any and all per 911 call operator charges it
receives from the operator for Customer’s 911
calls placed over a virtual MLTS systems that are
routed to an intermediary operator before being
routed to a PSAP.

NEITHER COX NOR ANY COX RELATED PARTY

SHALL BE RESPONSIBLE OR LIABLE FOR ANY

FAILURE TO RECEIVE VOICE SERVICE OR FOR THE
FAILURE OF ANY 911 OR E911 TELEPHONE CALL

INCLUDING WITHOUT LIMITATION IN

CONNECTION WITH (A) CUSTOMER ATTEMPTS TO

USE A NON-NOMADIC SERVICE AT AN ADDRESS

WHERE EQUIPMENT WAS NOT INSTALLED BY COX,
CUSTOMER’S FAILURE TO UPDATE OR INPUT
ACCURATE 911 SPECIFIC LOCATION INFORMATION

FOR ANY NON-MOBILE NOMADIC VOICE SERVICE

OR ENHANCED LOCATION INFORMATION FOR ANY
VOICE SERVICE, (C) CUSTOMER’S ATTEMPT TO
PLACE ANY 911 OR E911 TELEPHONE CALL BY

USING OR ENABLING THE SHARED CALL

APPEARANCE (SCA) FEATURE OR BUTTON ON ANY

TELEPHONE(S) PROVIDED AS A PART OF THE COX

VOICEMANAGER IP CENTREX SERVICE, (D)
CUSTOMER’S ATTEMPT TO PLACE ANY 911 OR E911

TELEPHONE CALL USING ANY THIRD-PARTY

SOFTWARE, APPLICATION, VIRTUAL MLTS SYSTEM,
OR 911 PROVIDER (E) A NON- MOBILE NOMADIC

CALL PLACED OUTSIDE OF THE CONTIGUOUS
UNITED STATES; (F) A NON-MOBILE NOMADIC

CALL PLACED FROM A LOCATION OTHER THAN THE

ADDRESS LISTED AS THEIR SPECIFIC LOCATION
INFORMATION; (G) INTERRUPTION,

DISCONNECTION OR REMOVAL OF ANY EQUIPMENT

OR OTHER SERVICE NECESSARY TO RECEIVE

VOICE SERVICE, (H) REMOVAL, DISCONNECTION,

DAMAGE TO, OR FAILURE TO CHARGE NECESSARY
BACK-UP BATTERIES; (I) CUSTOMER’S FAILURE TO

CONFIGURE A UNIFIED COMMUNICATIONS

APPLICATION TO ALLOW PROPER INTEGRATION
WITH COX’S VOICE SERVICE, OR (J) FAILURE TO

PROVIDE LOCATION INFORMATION OR CORRECT
LOCATION INFORMATION FOR 911 PURPOSES TO OR

FROM A THIRD-PARTY UNIFIED COMMUNICATIONS
APPLICATION, VIRTUAL MLTS SYSTEM OR 911
PROVIDER.

C6. PIN Access. The Federal Communications
Commission (“FCC”) requires Customer to set up and
use a Private Identification Number (PIN) when
communicating with Cox to obtain certain information
about, or to make certain changes to, their telephone
account. Use of this PIN may be waived when
communicating with an account representative
dedicated to Customer’s account.

C7. Letter of Agency. Where applicable, the Letter of
Agency executed in connection with this Agreement
shall be valid during the Term of this Agreement for
all telephone lines purchased under this Agreement
that are ported to Cox, RingCentral, or the applicable
third party service provider.

C8. Long Distance (State-to-State and
International Telephone Services). If Customer
subscribes to or uses any long distance (State-toState and/or International) telephone Services from Cox, such Services shall be provided pursuant to the
additional terms and conditions contained in the
Long Distance Phone Services Agreement which
may be found at
https://www.cox.com/aboutus/policies/businesscustomer-phone-agreement.html and the applicable terms and conditions at
https://www.cox.com/content/dam/cox/aboutus/d
ocuments/Surcharges_and_Fees.pdf?sc_id=cb_cbd
m_cb_cb_cbsurchargesandfees_cbvanity_cbT317, all
of which are incorporated into the Agreement by this
reference.

C9. Universal Service Programs. In connection
with the FCC's Universal Service Orders, Cox will pay
a percentage of its retail revenues to support the
Universal Service Fund (USF). Cox passes through
the USF assessment to Customer by assessing a
charge applicable against all retail interstate and
international charges, including Customer’s
usage and non-usage charges. This surcharge is in
addition to standard usage charges and any
541
29 applicable service charges and surcharges
associated with the Customer's service. Cox’s
Universal Service Fee factor will match the relevant
quarterly Universal Service Contribution Factor
approved by the FCC rounded up to the nearest
tenth of a percent. Universal Service Contribution
Factors
are available at
https://www.fcc.gov/general/contribution-factorquarterly-filings-universal-service-fund-usfmanagement-support. In States with individual State-sponsored Universal Service Programs, Cox
will pay a percentage of its retail revenues to
support the individual State funds. Cox will passthrough the funds’ assessments, by State, to its customers by assessing a charge applicable against
all retail intrastate charges, including usage and
non-usage charges. This surcharge is in addition to
standard usage charges and any applicable service
charges and surcharges associated with the
Customer's service. The State Universal Service
Program assessment percentages are determined
by each State’s Fund Administrator.

C10. Off-Network Voice Services. Non-mobile
nomadic services may be used in multiple fixed
locations only in the contiguous United States and
require a broadband Internet connection at all
times. If used in locations outside of the
boundaries of Cox’s network or if used at a
location that is not a Cox Business internet
customer, Customer is responsible for obtaining its
own non-Cox Business- provided broadband
internet connection, as non- mobile nomadic
services cannot operate without a broadband
internet connection and is subject to Cox’s rights
to terminate the Service if Cox determines in its
sole discretion that the location where is the
Service is received or used is unacceptable to Cox.

Any interruptions, degradations, outages or any
other issues related to broadband Internet
connections may cause interruptions,
degradations, outages or other issues with nonmobile nomadic voice services provided by Cox.

THEREFORE, NEITHER COX NOR ANY COX

RELATED PARTY SHALL BE LIABLE FOR DAMAGES

FOR FAILURE TO FURNISH OR INTERRUPTION OF

ANY NON-MOBILE NOMADIC VOICE SERVICES
(INCLUDING RINGCENTRAL) RELYING ON NONCOX BUSINESS PROVIDED BROADBAND

INTERNET CONNECTIONS, OR FOR ANY PROBLEM

WITH THE SERVICES OR EQUIPMENT OF ANY

THIRD PARTY, NOR SHALL COX NOR ANY COX

RELATED PARTY BE RESPONSIBLE FOR FAILURE

OR ERRORS OF ANY COX SERVICE, COX

EQUIPMENT, SIGNAL TRANSMISSION, LICENSED

SOFTWARE, LOST DATA, FILES OR SOFTWARE
DAMAGE, REGARDLESS OF THE CAUSE. NO

SERVICE CREDITS OR REMEDIES UNDER ANY

SERVICE LEVEL AGREEMENT SHALL APPLY FOR
NON-MOBILE NOMADIC VOICE SERVICES. Any
installation, repair, troubleshooting, and/or Truck
Rolls for non-mobile nomadic voice services outside of
Cox’s market area may require additional fees and
expenses to be paid by Customer beyond Cox’s normal
charges for in-market services. The provision of nonmobile nomadic voice services shall also be subject to all other applicable terms and conditions in the
Agreement related to Voice Services generally. The
parties acknowledge and agree that Cox reserves the
right to suspend, modify, or terminate non-mobile
nomadic voice services or any part thereof, either
temporarily or permanently, without notice. Cox
reserves the right to add or remove features and
capabilities from non-mobile nomadic voice
services, and some features may only be available
to Customer at an additional cost.

C11. Backup Power/E911. For IP-based voice
Services, Cox will install IP-based voice line
terminating equipment, which may include embedded
multimedia terminal adapters (eMTAs), integrated
access devices (IADs), and/or voice gateways. This
Cox Equipment, and any other Cox-provided
Equipment referenced herein, shall at all times remain
the sole and exclusive personal property of Cox,
notwithstanding installation at or attachment to
Customer’s Premises. IP-based voice Services will not
operate or access E911 in the event of a power outage
without backup power and are referred to herein as
“Power Dependent Voice Lines.”
For any Customer purchases of Power Dependent
Voice Lines after July 1, 2024, Customer shall notify
Cox whether such Power Dependent Voice Lines shall
be designated as a “Critical Line” or a “Standard Line” based on Customer’s intended use. Any designations
of Critical Lines shall be reflected on the face of this Agreement or the applicable Service Order. A “Critical
Line” is a Power Dependent Voice Line that is used to
carry traffic deemed by Customer to require enhanced
reliability, such as alarm lines, elevator lines, and
security lines. A “Standard Line” is a Power Dependent
Voice Line purchased and/or installed after July 1,
2024 that is not designated a Critical Line.

Any Power Dependent Voice Line purchased and/or
installed by Cox prior to July 1, 2024 shall be deemed
542
30 a “Legacy Line”, unless otherwise designated in the
Agreement or the applicable Service Order.

Cox will provide Customer with backup power for
Cox-provided voice line terminating equipment and
Cox-provided transport equipment associated with
Critical Lines. Customer is responsible for providing
backup power for all other equipment connected to
Critical Lines on Customer’s Premises. Cox does not
provide backup power for any Cox Equipment
associated with a Standard Line. Customer is
responsible for monitoring the performance of any
backup power source provided by Cox that provides
power to any eMTA(s) associated with Legacy Lines.

Upon Customer’s request, Cox will provide Customer
with a replacement backup power source for
eMTA(s) associated with Legacy Lines until Cox
provides Customer with at least thirty (30) days
prior written notice of a change in policy. For Legacy
Lines without an eMTA, Customer is responsible for
backup power for all Cox Equipment and all
Customer equipment on Customer’s Premises.

IN THE EVENT OF A POWER OUTAGE, CUSTOMER’S

STANDARD LINES (INCLUDING ANY LINES

PROVIDED TO CUSTOMER BY A THIRD PARTY

SERVICE PROVIDER THAT ARE RESOLD BY COX
UNDER THIS AGREEMENT) AND CUSTOMER’S

LEGACY LINES WITHOUT A COX PROVIDED EMTA
WILL NOT OPERATE WITHOUT A CUSTOMERPROVIDED POWER SOURCE, AND CUSTOMER WILL NOT HAVE ACCESS TO E911 IN SUCH EVENT. IN
THE EVENT OF A POWER OUTAGE, CUSTOMER’S

LEGACY LINES WITH A COX PROVIDED EMTA MAY

NOT OPERATE DEPENDING ON THE CONDITION OF

THE COX PROVIDED BACKUP POWER SOURCE, AND
CUSTOMER MAY NOT HAVE ACCESS TO E911 IN
SUCH EVENT. IN THE EVENT OF A POWER OUTAGE,

COX PROVIDED BACKUP POWER SOURCES THAT
ARE FULLY CHARGED WILL POWER CUSTOMER’S
CRITICAL LINES (INCLUDING ACCESS TO E911)
FOR UP TO 8 HOURS, EXCEPT WHERE COX IS

UNABLE TO PLACE AND OPERATE NETWORK

BACKUP POWER EQUIPMENT DUE TO SAFETY

CONCERNS SUCH AS, BUT NOT LIMITED TO,

NATURAL DISASTERS, WILDFIRE CONDITIONS,

FORCED GOVERNMENT EVACUATIONS, AND FUEL
SHORTAGES. DURING THE TERM OF THIS

AGREEMENT, COX SHALL NOT BE RESPONSIBLE OR

LIABLE FOR ANY FAILURE OF CUSTOMER TO

RECEIVE SERVICE OR FOR THE FAILURE OF ANY
911 OR E911 CALL IF (A) CUSTOMER REMOVES,

UNPLUGS, DISCONNECTS, OR DAMAGES ANY COX

PROVIDED LINE TERMINATING EQUIPMENT OR

OTHER COX EQUIPMENT OR (B) CUSTOMER FAILS TO

CHARGE THE BATTERY FOR SUCH EQUIPMENT AT ANY
TIME. COX USES CUSTOMER’S VOICE SERVICE
ADDRESS TO IDENTIFY CUSTOMER’S LOCATION FOR
E911 SERVICE. IF COX PROVIDED LINE

TERMINATING EQUIPMENT OR OTHER COX
EQUIPMENT INSTALLED AT CUSTOMER’S PREMISES
IS MOVED, THE E911 DISPATCH MAY NOT RECEIVE
CUSTOMER’S CORRECT ADDRESS. CUSTOMER SHALL

NOTIFY COX IF IT WOULD LIKE TO MOVE OR
RELOCATE ITS VOICE SERVICE. IT CAN TAKE UP TO
2 BUSINESS DAYS FOR CUSTOMER’S NEW ADDRESS
TO BE UPDATED.

C12. Cortelco Analog Telephones Handsets. If
Customer leases or purchases Cortelco analog
telephone handsets from Cox, the additional terms
and conditions at coxbusiness.com/cortelcophones
shall apply.

C13. Call Recording. Cox does not currently
provide call recording as a first party feature of its
Services but may refer Customer to third party
services. If Customer enables any third-party call
recording service, Customer expressly authorizes
Cox to share Customer’s information with the thirdparty provider, including, without limitation, Customer’s name, telephone number(s), and email
address. If Customer purchases RingCentral
Services from Cox, certain call recording features
may be available to Customer as a part of such
RingCentral Services. If Customer, or any end user
of the Service, records any telephone call or
conversation using Cox Equipment or Services
provided by Cox (including with the use of any thirdparty service or equipment), Customer is solely responsible for ensuring that Customer and any end
user(s) comply with all applicable law. Recording a
conversation without the other party’s consent may
be illegal in certain States. COX HEREBY EXPRESSLY

DISCLAIMS ALL WARRANTIES AND MAKES NO

REPRESENTATIONS OF ANY KIND REGARDING THE

QUALITY ASSOCIATED WITH ANY RECORDING

MADE USING ANY COX EQUIPMENT OR SERVICES
OR THE EQUIPMENT OR SERVICES OF ANY THIRDPARTY. COX AND ANY COX RELATED PARTIES

SHALL HAVE NO LIABILITY IF THE RECORDING

MADE USING COX EQUIPMENT OR SERVICES, OR
OR THE EQUIPMENT OR SERVICES OF ANY THIRDPARTY, FAILS OR IS OF POOR QUALITY. COX

HEREBY EXPRESSLY DISCLAIMS ALL WARRANTIES

AND MAKES NO REPRESENTATIONS OF ANY KIND
THAT COX’S SERVICES OR EQUIPMENT WILL WORK

WITH OR SUPPORT ANY THIRD-PARTY SERVICES
543
31 OR EQUIPMENT. COX AND ANY COX RELATED

PARTIES SHALL HAVE NO LIABILITY FOR
CUSTOMER’S USE OF ANY THIRD-PARTY
SERVICES OR EQUIPMENT. COX AND ANY COX

RELATED PARTIES SHALL HAVE NO LIABILITY FOR

ANY INFORMATION SHARED WITH RINGCENTRAL
OR CUSTOMER’S THIRD-PARTY SERVICE
PROVIDER. CUSTOMER ACKNOWLEDGES THAT

COX IS NEITHER A CALL RECORDING SERVICE
PROVIDER NOR A PARTY TO CUSTOMER’S

CONTRACT WITH ANY THIRD PARTY SERVICE
PROVIDER (INCLUDING RINGCENTRAL).

HOWEVER, EXCEPT AS EXPRESSLY SET FORTH IN

THIS AGREEMENT, ANY SUCH AGREEMENT

BETWEEN CUSTOMER AND A THIRD PARTY

SERVICE PROVIDER SHALL NOT MODIFY OR
SUPERSEDE CUSTOMER’S AGREEMENT WITH COX
OR ANY OF CUSTOMER’S OBLIGATIONS IN THIS
AGREEMENT. Customer shall indemnify, defend
and hold harmless Cox, its Affiliates, employees,
directors and shareholders and the Cox Related
Parties from any and all claims arising from or
related to recordings made using the Services,
any Cox provided Equipment or any third-party
services or equipment. Customer is solely
responsible for any services or additional
equipment that may be necessary (e.g., such as a
USB device, storage or memory devices) and Cox
has no responsibility to provide or support such
equipment or services.

C14. Audio On Hold. If Customer purchases or
otherwise uses any audio on hold Services
(including music on hold), CUSTOMER IS SOLELY

RESPONSIBLE FOR OBTAINING AND PAYING FOR

ALL NECESSARY PERMISSIONS, LICENSES AND

CLEARANCES FOR RECORDING, MODIFYING AND

PERFORMING COPYRIGHTED AND/OR PROTECTED

MUSIC OR OTHER CONTENT IN CONJUNCTION

WITH OR THROUGH AUDIO ON HOLD
SERVICES. Cox has not secured (and will not
secure) for Customer any permissions, licenses or
clearances for the use of any copyrighted and/or
protected music or other content and does not
monitor Customer’s use of audio on hold Services.

Customer represents and warrants that any content
and music provided by Customer or used by
Customer through the audio on hold Services does
not violate or infringe any intellectual property
rights of any third parties, including copyright,
trademark and publicity rights. Cox may terminate
the audio on hold Services and any other Services if
Cox believes that Customer has violated the terms of
this Agreement or the rights of any third parties.

C15. Use of Services with Intent to Annoy. Cox
may discontinue Service to any Customer, who, with
intent to annoy, telephones another and uses any
obscene language or makes any threat to inflict injury to any person or property. Cox may discontinue Service
of any Customer, who with intent to annoy, repeatedly
telephones, messages, or communicates with another
without disclosing his/her true identity to the person
answering the telephone or receiving the message or
communication, whether or not conversation ensues.

Cox may, at its discretion and subject to applicable
law, terminate Service to any Customer who
establishes a pattern of behavior with respect to the
Services that is intended to vex, harm, intimidate,
harass or annoy Cox, its employees, agents or other
Cox customers or users of the network. A pattern of
behavior is intended to vex, harm, intimidate, harass
or annoy if it disturbs, irritates or interrupts Cox’s
operations through continued and repeated acts, or
disturbs, irritates, or interrupts Cox customers or
users of the network through continued and repeated
acts. Prior to disconnection of Service for calls
described above, Cox will make reasonable efforts as
determined in Cox’s sole discretion to persuade the
Customer placing such calls or sending the messages
or other communications to cease all such activity. If
such activity persists, Cox may, at its option,
disconnect Service. Telephone calls shall include
Customer’s usage of facsimile, paging or any other
communication devices to access the service provided
by Cox. Cox may disconnect Service to any Customer
who violates 47 U.S.C. §227, Restrictions on the Use
of Telephone Equipment.

If Customer purchases RingCentral Services,
Customer and its use of such RingCentral Services
shall be subject to the terms of the RingCentral
Acceptable Use Policy set forth at
https://www.ringcentral.com/legal/acceptable-usepolicy.html (the “RingCentral AUP”). In the event of any conflict between the RingCentral AUP (including
any additional guidelines, weblinks, and/or other
policies set forth therein) and the Cox AUP, then the
RingCentral AUP shall govern and control.

C16. Fraud. Customer is responsible for ensuring
that Customer Premises Equipment (CPE) such as a
Private Branch Exchange (PBX), provisioned on
Cox’s network is protected from fraudulent or
unauthorized access. Customer is responsible for
payment of all charges on their monthly billing
statement, including any charges resulting from
fraudulent or unauthorized access to any CPE. If
Cox detects patterns of calling that indicate that, or
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32 is otherwise alerted that, the Customer’s
equipment has been compromised and/or
fraudulent use may be occurring, Cox or the
applicable third party service provider may take
emergency action to limit the amount of
fraudulent calling that is occurring, including
without limitation, suspending or terminating
Service, without prior notice to Customer.

C17. Interconnected VoIP (iVoIP) Services.

For purposes of this Agreement, the iVoIP
Services shall include the following Cox Services
and features: Cox VoiceManager, Hosted IP-PBX
Services (IP Centrex), SIP Trunking, PRI Personal
Mobility, any RingCentral-based Service sold to
Customer under this Agreement, and any other
Cox Service or feature that
(i) enables real-time, two-way voice
communications; (ii) requires a broadband
connection and may require IP-compatible
Customer equipment; and (iii) permits Customer
to receive telephone calls from and initiate calls
over the Public Switched Telephone Network.

These General Terms contain descriptions and
charges, including but not limited to, charges for
the Network Interface Fee and Services such as
Directory Assistance, Directory Listing, Operator
Services and other ancillary services that may be
provided with the iVoIP Services. Customer
acknowledges that long distance calling Services
used with iVoIP Services are subject to the rates,
terms and conditions of the applicable Cox tariff
or SG as referenced in the Agreement. The
Network Interface Fee and the rates for ancillary
services referenced in these General Terms are
subject to change from time to time during
the Term. Additional charges may apply for
optional features and Services selected by
Customer. Cox reserves the right to conduct a site
survey at the Premises prior to provisioning any of
the iVoIP Services and may require Customer to
obtain additional equipment, if necessary, for
optimal installation and operation of the Service.

For Cox VoiceManager IP Centrex Service only,
Cox shall provide Customer with Layer 2 switches
for connectivity from the IP telephones to Cox’s
demarcation equipment; however, if Customer
elects to use its own Layer 2 switches, Cox (or its
designated agents or contractors) reserves the
right to perform a prequalification assessment of
Customer’s equipment in order to confirm that
such equipment meets Cox’s required network
specifications. Unless otherwise provided in this
Agreement, Cox shall only configure one (1) data
VLAN for all non-Cox traffic if Customer agrees to
use Cox-provided Layer 2 switches. Cox shall have
no obligation to configure multiple VLANs or to
modify switch configurations. Customer is solely
responsible for DHCP, security, NAT, PAT, and other
LAN services for the data VLAN. If Cox uses
Customer’s Layer 2 switches or any other
equipment provided by Customer (i.e., IP
telephones, routers and firewalls) in connection with
the Cox VoiceManager IP Centrex Service, neither
Cox nor any Cox Related Party shall be responsible
or liable for any Service interruptions or outages
related to Customer’s equipment including, without
limitation, improper configuration of such
equipment or failure to properly repair or maintain
such equipment. Any telephones or other
equipment provided by Cox to Customer in
connection with the Cox VoiceManager IP Centrex
Service shall be deemed to be Cox Equipment.

C18. Early Termination of Cox Business
VoiceManager IP Centrex and RingCentralBased Service Seats. Notwithstanding anything to the contrary in this Agreement, during the Initial
Term of this Agreement, Customer may terminate up
to Twenty Percent (20%) of the original number of
Cox Business VoiceManager IP Centrex Service Seats
or any RingCentral-based Service Seats (as defined
below) that Customer ordered from Cox under this
Agreement, without incurring any early termination
fees for such terminated Seats. This reduction of the
early termination fees does not apply if Customer
terminates more than Twenty Percent (20%) of the
original number of Cox Business VoiceManager IP
Centrex Service Seats o r R i n g C e n t r a l -
b a s e d S e r v i c e S e a t s that Customer ordered from Cox under this Agreement. Unless otherwise
agreed to in writing by both parties, Customer agrees
to limit requests to adjust the number of Cox Business
VoiceManager IP Centrex Service Seats and
RingCentral-based Service Seats to one change per
month. For purpose of this Agreement, “Seats” means
the maximum number of Customer’s users of Cox
Business VoiceManager IP Centrex Service or any
RingCentral-based Service permitted at any one time.

C19. Additional Limitation of Liability of Cox and
RingCentral.

With respect to 911 Access and Directory Listings:
(a). 911 Access is offered solely as an aid in
handling assistance calls in connection with fire, police and other emergencies. Neither Cox nor any Cox
Related Party is responsible for any losses, claims,
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33 demands, suits or any liability whatsoever, whether
suffered, made, instituted or asserted by the
Customer or by any other party or person for any
personal injury to or death of any person or persons,
and for any loss, damage or destruction of any
property, whether owned by the Customer or others,
caused or claimed to have been caused by: (1)
mistakes, omissions, interruptions, delays, errors or
other defects in the provision of 911 Access, or (2)
installation, operation, failure to operate,
maintenance, removal, presence, condition, location
or use of any equipment and facilities furnishing 911
Access.
(b). Neither Cox nor any Cox Related Party is
responsible for any infringement or invasion of the
right of privacy of any person or persons, caused or
claimed to have been caused, directly or indirectly,
by the installation, operation, failure to operate,
maintenance, removal, presence, condition, occasion
or use of 911 Access features and the equipment
associated therewith, or by any Services furnished by
Cox including, but not limited to, the identification of the telephone number, address or name associated
with the telephone used by the party or parties for
911 Access.
(c). The liability of Cox and/or any Cox Related Party
arising from errors or omissions in Directory Listings, other than charged listings, shall be limited to the
amount of actual impairment to the Customer's
Service and in no event shall exceed one-half the
amount of the fixed monthly line charges applicable
to Voice Service affected during the period covered
by the directory in which the error or omission occurs.

In cases of charged Directory Listings, the liability of Cox and/or any Cox Related Party shall be limited to
an amount not exceeding the amount of charges for
the charged listings involved during the period
covered by the directory in which the error or
omission occurs. Neither Cox nor any Cox Related
Party shall be liable for the errors of third party
entities involved in the Directory Listing process.
(d). In conjunction with a non-published telephone
number, neither Cox nor any Cox Related Party will
be liable for failure or refusal to complete any call to such telephone when the call is not placed by
number. Cox will try to prevent the disclosure of the
number of such telephone, but neither Cox nor any
Cox Related Party will be liable should such number
be divulged.
(e). When a Customer with a non-published
telephone number places a call for 911 Access, Cox
and/or any applicable Cox Related Party(-ies) will
release the name and address of the calling party, where such information can be determined to the
appropriate local governmental authority responsible
for the 911 Access upon request of such
governmental authority. By subscribing to Service
under these terms and conditions, Customer
acknowledges and agrees with the release of
information as described above.

If Customer purchases RingCentral Services,
Customer and its use of the RingCentral Services shall
be subject to RingCentral’s Emergency Services Policy
(https://www.ringcentral.com/legal/emergencyservices.html) (the “RingCentral Emergency Services Policy”) included as a part of the RingCentral T&Cs
and Policies. In the event of any conflict between this Section C19 and the RingCentral Emergency Services
Policy, the RingCentral Emergency Services Policy
shall govern and control.

C20. Station Equipment. The Customer is
responsible for providing and maintaining (or causing to be provided and maintained) any terminal equipment
on the Premises being served. The electric power
consumed by such equipment shall be provided by, and
maintained at the expense of, the Customer. All such
terminal equipment must be registered with the FCC
under 47 C.F.R., Part 68 and all wiring must be
installed and maintained in compliance with those
regulations. Cox and/or any applicable Cox Related
Party(-ies) will, where practicable, notify the
Customer that temporary discontinuance of the use
of a service or any associated equipment may be
required; however, where prior notice is not
practicable, nothing contained herein shall be deemed
to impair Cox's or, as the case may be, the applicable
Cox Related Party’s right to discontinue forthwith the
use of a service or any associated equipment
temporarily if such action is reasonable under the
circumstances. In case of such temporary
discontinuance, the Customer will be promptly
notified and afforded the opportunity to correct the
condition which gave rise to the temporary
discontinuance.

C21. Voice Services Surcharges and Fees. Cox
may invoice Customer and Customer shall pay all
Taxes, Fees, and Surcharges applicable to the Voice
Services, including, without limitation the following:
(a). The Network Interface Fee (“NIF”) is an
interstate fee that Cox assesses its iVoIP customers
that helps defer some of the cost associated with
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34 carrier network interconnection services and the
interface with the Public Switched Telephone
Network (“PSTN”). The fee is a monthly, flat-rated
charge assessed to iVoIP customers for each line,
voice path or trunk that is active on the account.

Cox may change the NIF rate from time to time by
providing notice to the Customer. This charge is not
a charge assessed by a government agency.
(b). The Regulatory Cost Recovery Fee (“RCRF”) is
a monthly fee that Cox assesses its customers that
helps recover costs associated with expenses
associated with regulatory proceedings and
compliance. The fee is percentage-based, applicable
against all retail interstate and international
charges. Cox may change the RCRF percentage rate
from time to time by providing notice to the
Customer. This fee is not a tax or fee assessed by
a government agency.

A non-exhaustive list of additional Taxes, Fees, and
Surcharges that may apply is described at
https://www.cox.com/business/support/taxesfees-and-surcharges-for-cox-services.html and coxbusiness.com/cbsurchargesandfees. Cox may
charge additional Taxes, Fees, and Surcharges
which may not be described in this Agreement or
the link in the preceding sentence. All Taxes, Fees,
and Surcharges are subject to change from time to
time.

C22. Toll Service. If a Customer in any single
month accrues toll charges in excess of twice the
average monthly toll charges of similarly situated
customers or twice the actual monthly average of the
individual Customer’s charges, Cox may review the
Customer’s previous billing and payment history. If
such review indicates that the probability of payment
is unlikely, Cox may contact the Customer to make
inquiries concerning the abnormal usage and may
require a security deposit and/or payment of charges
on the account to continue service. If the Customer
does not comply with the conditions prescribed in this
section within forty-eight (48) hours, Cox may
suspend or terminate Service. If a Customer exceeds
the average monthly toll charges of Cox’s customers
and has exhibited a previous inability to pay such
charges, Cox may impose toll controls, where
technically feasible, or a toll cap of $100.00.

C23. Unlimited Services. Cox Voice Services
provided on an unlimited basis shall be subject to
the additional restrictions in this Section, and all
other use restrictions set forth in the Agreement,
including, without limitation, Sections A29, C15, and
C16. Unlimited Voice Services shall apply only to
direct- dialed outbound calls to the United States
made from the line subject to an unlimited plan.

Unlimited calling is not available for calls shorter than two minutes in length. Unlimited calling shall not
apply toward operator-assisted, collect calls, toll
free (inbound) calls, calls billed to a third party or
credit cards, or calls to directory assistance, each of which may incur additional charges to Customer.

Unlimited calling plans shall not be used in
conjunction with (a) call center applications, (b)
Automatic Call Distribution (ACD) systems, (c) long
distance Internet access, (d) resale of unlimited
minutes, (e) PBX trunks or services, (f) non-square
electronic key and hybrid telephone systems, (g)
ground start line or trunks,
(h) ISDN services, (i) public telephone services, (j)
public access smart-pay phones, (k) multiparty
conference calling, multiparty "chat" lines or
engaging in activities that generate minutes that
result in revenue-sharing by a Customer, or (l) the
functional equivalent of any system listed above. Cox
and/or the applicable Cox Related Party(-ies) retains
the right to monitor the type and volume of
Customer’s usage to ensure that Customer’s use of
the plan is consistent with all restrictions provided for in the Agreement. If Cox or the applicable Cox
Related Party(-ies) determines that the Customer is
in violation of any restrictions in this Agreement,
Customer shall forfeit eligibility for the unlimited
plan and Cox or the applicable Cox Related Party(-ies)
may suspend or terminate Services provided to
Customer or move the Customer’s service to
another plan offered by Cox or such Cox Related
Party(-ies). If Customer purchases RingCentral
Services for its use on an unlimited basis, Customer
shall also be subject to the terms set forth at
https://www.ringcentral.com/legal.html (the
“RingCentral T&Cs and Policies”). In the event of
any conflict between the RingCentral T&Cs and
Policies (including any additional weblinks and/or
policies set forth therein) and this Agreement
(including, without limitation, the Service Terms,
the General Terms, and the AUP), the RingCentral
T&Cs and Policies shall govern and control.

C24. Call Validation. Cox, certain Cox Related
Parties. and the telecommunications industry are
developing and implementing new call validation
techniques to attest that calls are placed from known
and identified customers. As the industry enables
these call validation techniques, there may be
unanticipated impacts to call origination and
547
35 completion, which may be outside of Cox’s or, as the case may be, the Cox Related Party’s control. Cox
is an active participant in industry forums and will work with other participating carriers to minimize negative
impacts associated with the rollout of call validation.

NEITHER COX NOR ANY COX RELATED PARTY SHALL

BE RESPONSIBLE OR LIABLE FOR ANY FAILURE OF

OUTGOING OR INCOMING CALLS TO BE COMPLETED

DUE TO CALL VALIDATION ATTESTATION LEVELS OR

IMPLEMENTATION OF CALL VALIDATION
TECHNIQUES. If a Customer disagrees with its call
validation attestation level, Customer must contact
Cox to discuss whether the attestation level may be
changed. For the avoidance of doubt, the following
does not apply for RingCentral Services: Cox uses
call analytics and caller-id authentication to attempt
to identify calls that are of high-, medium- and lowrisk of being illegal or scam calls and automatically blocks calls predicted to be high-risk for any active
telephone number or direct inward dialing line used
with Voice Services. Customer will be able to
change and manage the call treatment settings for
each category of calls through MyAccount.

RingCentral Service customers will be able to
change and manage the call treatment for active
telephone numbers or direct inward dialing lines in
the RingCentral App and Customer/Administrative
Portal.

C25. RingCentral Services. Customer hereby
agrees and acknowledges that RingCentral, Inc.
(“RingCentral”) is the provider of the Services and
products described above that reference RingCentral
(the “RingCentral Services”) and that Cox is reselling
RingCentral Services to Customer. Customer’s use
of the RingCentral Services shall subject Customer
and its end users to both the terms of this
Agreement (as defined below) with Cox and the
RingCentral End User Terms set forth at
https://www.ringcentral.com/legal/eulatos.html
(the “RingCentral Terms”). Customer’s execution of
this Agreement or, if earlier, Customer’s use of the
RingCentral Services shall mean that Customer has
read, understands, accepts, and agrees to this
Agreement and the RingCentral Terms. In the event
of any conflict between the RingCentral Terms
(including any additional weblinks and/or policies set
forth therein) and this Agreement (including,
without limitation, the Service Terms, the General
Terms, and the AUP), the RingCentral Terms shall
govern and control. CUSTOMER HEREBY AGREES
AND ACKNOWLEDGES THAT (A) CUSTOMER’S

ACCEPTANCE OF THE RINGCENTRAL TERMS SET

FORTH AT
https://www.ringcentral.com/legal/eulatos.html

CONSTITUTES A SEPARATE, BINDING, AND

ENFORCEABLE CONTRACT EXCLUSIVELY BETWEEN

CUSTOMER AND RINGCENTRAL, WHICH MAY

SUBJECT CUSTOMER TO LIABILITY FOR VIOLATIONS

OF THE RINGCENTRAL TERMS, AND (B) ONLY

RINGCENTRAL, NOT COX, SHALL HAVE ANY LIABILITY
TO CUSTOMER RELATING TO RINGCENTRAL’S
PROVISION OF THE RINGCENTRAL SERVICES.

The following three provisions in this Section C shall
not apply to Cox’s resale of the RingCentral Services:

C4 (911 Access), C12 (Cortelco Analog Telephone
Handsets), and C22 (Toll Service).

SMS/MMS Associated With RingCentral
Services:

Usage of SMS/MMS associated with RingCentral
Services is subject to the RingCentral SMS/MMS
content policies (ringcentral.com). To utilize
SMS/MMS services, Customer must register and be
approved by RingCentral, in their sole discretion, prior to launching each SMS/MMS campaign. SMS/MMS are
usage based services which may incur charges, and
such charges may appear delayed on invoices from
Cox. Certain RingCentral services may include specific
SMS/MMS allotments. Customer will be subject to
additional charges if its use exceeds its SMS/MMS
allotment. Customer agrees that it is aware of its
allotment by signing this Agreement.”
CPE Associated With RingCentral Services:

All sales of CPE from Cox associated with RingCentral
Services are final. For CPE purchased from Cox,
Customer will pass-through a limited 12 month
warranty that Cox receives from RingCentral for CPE
purchases in connection with a deficiency or nonconformance of the device to an order or a warranty that Cox receives from RingCentral. Customer will be
responsible for costs associated with warranty returns
that are not covered under RingCentral’s warranty.

Customer acknowledges and agrees that purchases of
CPE shall be subject to the intellectual property
provisions and compliance with laws and export
provisions outlined in the RingCentral, Inc. Terms and
Conditions of Sale of Hardware
RingCentral Bring Your Own Device Feature:

Customers who provide IP Phones/CPE/Devices
separate from Cox and use the RingCentral Bring Your
Own Device (BYOD) feature are solely responsible for
configuring and managing their devices. The devices
must be compatible with RingCentral and in good
working order. The Customer must either own or
548
36 have the right to use the devices and must have the
right to configure the devices to be used with the
RingCentral platform. RingCentral supports BYOD
devices via 2 mechanisms (1) assisted provisioning
where RingCentral will manage pushing
configurations and firmware to Customer devices
one the Customers add the device to RingCentral,
(2) Customer can manually configure SIP capable
devices to operate with the RingCentral platform. If
manual configuration is chosen for the devices,
Customer is 100% responsible for changes or
updates to the phones security, configuration and
firmware as the devices is 100% managed by the
Customer.

RingCentral 3rd Party Integrations: Neither
Cox nor RingCentral is liable for any 3rd party
integrations the Customer may perform or contract
with Cox or RingCentral to integrate as part of a
Professional Services engagement.

Maintenance Related to RingCentral
Service: Notwithstanding anything to the
contrary in the Agreement, for any
maintenance related to any RingCentral
Service, Cox will only be able to provide
Customer notice 3-5 business days in advance
of any such maintenance that Cox reasonably
anticipates may interrupt RingCentral Service.
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37 D. Terms and Conditions Applicable to Video
Services
In addition to all provisions in Section A above, the
provisions of Section D shall also apply to all video
Service(s) including, without limitation, a ‘Cox
Business TV’ package, ‘Contour on Campus’, and
‘Bulk TV Subscriptions’:

D1. Video Service. If Customer is purchasing
video Service, Cox shall provide video Services to
the Demarcation Point as more specifically set forth
herein, and Customer shall be responsible for the
Customer Internal Distribution System and
distribution of the signal past the Demarcation
Point. Cox will deliver to Customer its standard
channel lineup, video programming channels and
video signals for the applicable Service Area (except
as otherwise required by applicable law), and such
lineups and signals are subject to change from timeto-time by Cox in its sole discretion. In order to receive the Service, Customer must have the
necessary equipment to receive the Service (e.g.,
TVs, monitors, circuits, etc.) and, at all times during the Term, Customer is responsible for ensuring that
such equipment is compatible with the Service,
including, but not limited to, video display
equipment such as video monitors, televisions or
other similar displays. For example, if Cox provides
Customer with an encrypted signal for the Service,
Customer must have equipment with decryption
capabilities that are satisfactory to Cox.

The rates charged for video services are on a per
outlet basis. Customer shall not add or attempt to
add additional video outlets using the video signal
feed provided by Cox, without Cox’s prior written
consent. Customer is responsible for the costs of all
additional video outlets that receive the video signal
feed provided by Cox. Customer must notify Cox of
any additional video outlets that receive the Cox
video feed during the Term of the Agreement.

Customer acknowledges and agrees that (i) the
programming and information contained in the
Service may not be changed or altered by Customer
or its agents; (ii) because Cox makes use of certain
programming owned by others in providing the
Service, Cox is not guaranteeing the provision or
future availability of any particular program or
channel, and (iii) Customer will make no claims nor
undertake any legal action against any person or
entity, including Cox’s programmers or vendors, if
certain programming is interrupted, discontinued or
substituted. Cox may change video and music
Service prices periodically during the Term of this
Agreement upon thirty (30) days prior written notice.

Residential video rates are not available to Customer
and Customer shall be liable to Cox for the difference
between the Cox Business video rates and any
residential rates. Customer shall have no claim
against Cox if any video or music channel is modified
or deleted by any programmer supplying such
content to Cox. Cox may restrict the display of
certain programming or video Services to certain
locations within the Premises. If Customer engages
in a public performance of any copyrighted material
contained in any of the video or music Services
provided under this Agreement, including, without
limitation, for the unauthorized showing of a PayPer-View event or movie, the Customer, and not Cox, shall be solely responsible for obtaining any public
performing licenses and for all corresponding
charges and liability. Customer is subject to
additional surcharges for outlets located in bars
and/or restaurants that receive said video Services.

For certain channels and programming, Customer
may need to negotiate directly with the programming
rights holders. In addition to any fees Customer may
be responsible for to a third party, Cox may also
charge Customer a separate authorization fee as
determined solely by Cox. Customer shall only order
Pay-Per-View programming directly from Cox.

If Cox provides digital video recorder (DVR)
equipment and service (“DVR Equipment and
Service”) to Customer, the following shall apply:

With respect to DVR Equipment and Service,
Customer acknowledges and agrees that (i)
Customer, and not Cox, is solely responsible for
obtaining any copyright licenses necessary for
Customer to use the DVR Equipment and Service,
including, without limitation, any necessary
reproduction or public performance licenses; and (ii)
Cox does not monitor or control the Customer’s use
of the DVR Equipment or Service and does not have
access to any content Customer may record using
the Equipment or Service. Notwithstanding the
foregoing, Cox reserves the right, at Cox’s option, to
discontinue the Service(s) and/or remove the DVR
Equipment immediately if Cox discovers that
Customer uses or has used the DVR Equipment or
Service in a manner that violates any applicable law
or regulation or that actually or allegedly infringes or violates any third party’s copyright, literary, privacy, patent, trademark or any other intellectual property or proprietary rights. Further, Customer’s indemnity
550
38 obligations under the Agreement shall include the
obligation to indemnify and defend Cox for any actual
or alleged claims of contributory or vicarious
infringement through the use of the Services and
DVR Equipment provided by Cox to Customer.

D2. Video Service Surcharges. If Customer
receives video service from Cox under this
Agreement, then Customer is subject to a monthly
“Broadcast Surcharge” fee. The current Broadcast
Surcharge fee may be posted at
coxbusiness.com/cbsurchargesandfees.

Beginning April 1, 2017, Cox may, in its sole
discretion, charge Customer a “Regional Sports
Surcharge” based on the package and channels
provided by Cox to Customer. The current Regional
Sports Surcharge may be posted at
coxbusiness.com/cbsurchargesandfees.

The Broadcast Surcharge, Regional Sports
Surcharge, and any other surcharges and fees on the
video services are subject to change from time to
time. Additional surcharges and fees may apply and
are all subject to change from time to time.

Video services provided to bars and restaurants
may be subject to additional surcharges as
determined solely by Cox and which are also subject
to change from time to time.

D3. Premium Channels. If Customer purchases
any Premium Channels video package from Cox this
provision shall apply. With respect to Premium
Channels (e.g. HBO, Cinemax, Starz, Encore,
Showtime, etc.), Customer acknowledges and
agrees that: (i) the Customer shall comply with all
obligations in the Agreement, including, but not
limited to, paying for all charges when due, (ii)
Customer, and not Cox, is solely responsible for
obtaining any copyright licenses necessary for
Customer to use the Premium Channels, including,
without limitation, any necessary reproduction or
public performance licenses; and (iii) Cox makes no
representations or warranties about the availability
of the Premium Channels. Notwithstanding the
foregoing, Cox reserves the right, at Cox’s sole
option, to discontinue the Service and/or remove
the Premium Channels immediately if Cox discovers
that Customer uses or has used the Premium
Channels or Service in a manner that violates any
applicable law or regulation or actually or allegedly
infringes or violates any third party’s copyright,
literary, privacy, patent, trademark or any other
intellectual property or proprietary rights.

Customer’s indemnity obligations under the
Agreement shall include the obligation to indemnify
and defend Cox for any actual or alleged claims of
contributory or vicarious infringement through the
use of the Premium Channels provided by Cox to
Customer. For technical reasons, Cox may have to
provide signal feeds for several Premium Channels
(e.g., HBO, Cinemax, Starz, Encore, Showtime), up
to the Demarcation Point. However, for the
avoidance of doubt, past the Demarcation Point,
Customer is only authorized to receive the signal for
the channel(s) that it has specifically purchased,
even if Cox provides signals for several channels up
to the Demarcation Point. If Customer or any end
user receives or attempts to receive a signal for a
Premium Channel past the Demarcation Point and
such channel is not purchased by Customer, this
shall be deemed a material breach of the Agreement
by Customer, and Cox reserves the right to
immediately terminate the Agreement and/or
require that Customer immediately pay all
applicable early termination fees and/or require that
Customer pay Cox the standard fee Cox would have
charged Customer had Customer contracted with
Cox to receive the Premium Channels as of the date
Cox first provided the Service to Customer.

Customer shall indemnify, defend and hold Cox, its
parents and Affiliates, harmless from any claims
arising from Customer’s or any end users
unauthorized use of any channel. Cox reserves the
right to audit the Premises receiving Services, from
time to time during the Term, to determine if
Customer or any end user are receiving any signals
for any channels that Customer is unauthorized to
receive.

D4. Analog to Digital Transition. During the
Term, Cox may, in its sole discretion, transition
certain or all channels in the standard channel
lineup from an analog transmission to a digital
transmission. In such event, Customer shall be
required to rent from Cox either a digital receiver
box/set-top box for each video outlet or digital
insertion equipment in order to continue receiving
such channels. Customer shall be solely responsible
for the payment of the rental fee for the digital
boxes and said rental fee is subject to change from
time to time. Cox will add said rental fee to
Customer’s monthly invoice. If digital insertion
equipment is required, Customer may be charged
an installation fee, and title to the digital
receiver/set-top box and any digital insertion
equipment shall remain with Cox at all times. Cox
551
39 may, in its sole discretion, require a site survey on the Premises to identify the number of digital boxes
needed. Customer acknowledges that its refusal to
cooperate with or provide access to Cox to
administer the digital transition may result in
certain or all channels becoming unavailable.

Notwithstanding anything to the contrary in the
Agreement, Customer’s (i) failure to pay the rental
fee for each digital box or (ii) Customer’s refusal to
cooperate or provide access to Cox to administer
the transition (as solely determined by Cox), shall
each be a material breach of the Agreement
permitting Cox to immediately terminate the
Agreement and/or the affected video Service(s) due
to Customer’s breach and Customer shall pay the
applicable termination fee. As clarification, the
digital box rental fee is a separate ‘fee’ the
Customer is obligated to pay and shall not be
considered an increase in the rate of Service.

Customer shall have no right to terminate the
Agreement due to the transition of channels to a
digital transmission and/or the addition of the rental
fee for the digital boxes or insertion equipment.

Cox, at all times, shall retain ownership of the digital box and all other equipment provided to Customer
by Cox, and the digital box and such equipment
shall be deemed “Cox Equipment” as defined herein.
552
40 E. Terms and Conditions Applicable to Other
Services
In addition to all provisions in Section A above, the
provisions of Section E shall also apply as
applicable:

E1. Web Hosting Servers. Cox reserves the right
to select the server for Customer’s web site for best
performance. Customer understands that the
Services provided by Cox may be provided on a
shared server. This means that one web site cannot
be permitted to overwhelm the server with heavy
CPU usage, for example from the use of highly
active Common Gateway Interface (CGI) scripts or
chat scripts. If Customer’s web site overwhelms the
server and causes complaints from other users,
Customer has outgrown the realm of shared
Services and will be required by Cox to relocate its
web site. If Customer refuses to comply with this
Section, then Cox has the right to terminate
Services. Cox will use reasonable efforts to maintain
a full-time Internet presence for Customer.

Customer hereby acknowledges that the network
may, at various time intervals, be down due to, but
not restricted to, utility interruption, maintenance,
equipment failure, natural disaster, acts of God, or
human error. Neither Cox nor any Cox Related Party
shall have any liability to Customer for such outages
or server downtime. Customer shall be solely
responsible for any software and content displayed
and distributed by Customer or Customer’s web
hosting customers, if any.

E2. Cox Email Account. Cox may, with at least
thirty (30) days prior notice, terminate or suspend
all or any portion of a Cox email account(s) provided
to Customer or migrate all or any portion of a Cox
email account(s) to a third party service provider.

Any such termination or suspension shall be made
by Cox in its sole discretion and Cox will not be
responsible to Customer or any third party for any
damages that may result or arise out of such
termination, suspension, or migration of Customer’s
email account(s) and/or access to the service.

Customer must log into its email account(s) using a
desktop browser at least once per year.

E3. Transport Service Outside the Continental
United States. If Customer purchases data
transport Services from Cox within the United
States and Customer requests that such data
transport Services connect to data transport
services outside the continental United States
(“International Transport Services”), Customer
authorizes Cox to act as its agent to purchase such
International Transport Services on behalf of Customer
from an International Service Provider that is
authorized to provide such services in the applicable
International location. Customer agrees to abide by
the applicable acceptable use policy and all other
terms and conditions required by the International
Service Provider for such International Transport
Services. Customer hereby further authorizes Cox, as
Customer’s purchasing agent for such International
Transport Services, to receive any billing invoices
directly from the International Service Provider and to submit and/or dispute payment(s) on Customer’s
behalf during the term of the services agreement for
said International Transport Services provided that in
no event shall such actions by Cox relieve Customer’s
responsibility for payment for such International
Service charges. Customer acknowledges and agrees
that Cox, in its discretion, may combine into one (1)
monthly invoice any Service charges and related fees
and taxes for the International Transport Services
with any Service charges and related fees and taxes
for Cox Services. Customer agrees to pay such
invoice in accordance with the terms and conditions
of this Agreement. In exchange for Cox’s service as
a purchasing agent for Customer’s International
Service, Customer agrees to pay Cox a management
fee (to be determined by Cox in its sole discretion),
which fee shall be included in Customer’s invoice. Any
taxes and fees billed to or incurred by Cox related to
the International Transport Services shall be the sole
responsibility of the Customer. Cox reserves the right
to terminate any Services received, provided or used
outside the continental United States at any time upon
written notice to Customer.

E4. Terms and Conditions Applicable to DDoS
Services. With respect to DDoS services sold by
Cox, the following provisions shall apply:
(a) DDoS Mitigation Managed Service. In
the event that Customer purchases DDoS Mitigation
Managed Services from Cox, Customer’s receipt,
use and purchase of such DDoS Services shall be
subject to the terms and conditions of this
Agreement, and the “DDoS Mitigation Managed
Service Terms and Conditions” which
are posted at
https://www.cox.com/content/dam/cox/aboutus/d
ocuments/DDOS-Mitigation-Terms-andConditions.pdf which are incorporated into this Agreement by this reference (the “DDoS Mitigation
Managed Service Terms”). In the event of a conflict
553
41 between the DDoS Mitigation Managed Service Terms
and any other term or condition of the Agreement,
the DDoS Mitigation Managed Service Terms shall
control with respect to the purchase and/or use
of the DDoS Mitigation Managed Services.
(b) DDoS Mitigation Essential Service. In
the event that Customer purchases DDoS
Mitigation Essential Service from Cox, this Section
E4(b) shall apply. The DDoS Mitigation Essential
Service continuously monitors Customer traffic
and categorizes such traffic as legitimate or
malicious (DDoS) using pre-defined digital
signatures. Traffic that is categorized as DDoS
traffic is intercepted and discarded or rate-shaped
while traffic categorized as legitimate is allowed to
pass. In order to receive the DDoS Mitigation
Essential Service from Cox, Customer must, at its
sole cost, maintain an acceptable Cox Internet
Service and static IP address that routes
exclusively to Cox at all times. Customer
acknowledges that Cox is not liable for the failure
of performance of the DDoS Mitigation Essential
Service should Customer fail to meet the foregoing
requirements, and the failure of Customer to
maintain such requirements shall not release
Customer from its obligations under the
Agreement.

For purposes of clarity, DDoS Mitigation Essential
Service (i) does not offer manually-triggered
mitigation, automated reporting, or alteration of
the underlying automated policy, (ii) provides
Customer only with the ability to enable or disable
the policy-driven auto-mitigation by contacting
Cox Customer Care, as set out in more detail
below, (iii) is not guaranteed to prevent all DDoS
attacks, and is intended to address Layer 3/4
services, and does not provide mitigation for Layer
7 services, (iv) cannot be updated with new
signatures or countermeasure settings provided
by Customer research or findings, (v) only
protects Internet traffic on Cox Internet circuits
(i.e., there is no protection for any attack traffic
on non-Cox circuits or multi-homed users), and
(vi) will not mitigate attacks that do not match an
existing signature and therefore such attacks may
still impact Customer. Customer acknowledges
that, while the DDoS Mitigation Essential Service
is actively mitigating attack traffic, legitimate
traffic may also be impacted (i.e., collateral
damage) by the anti-DDoS countermeasures.

Certain manual reports may be available upon
request, and as is reasonably acceptable to Cox.

Customer is solely responsible for contacting Cox
Customer Care when Customer needs to request
that the DDoS Mitigation Essential Service be
‘toggled off’ in connection with Customer’s need (a)
for (i) Customer testing/troubleshooting, (ii)
equipment and/or network installation,
maintenance, upgrades, configuration, or (iii) other
similar activities and (b) to prevent any unintended
consequences from auto-triggered DDoS mitigation
during critical timeframes such as, but not limited
to, Customer running business promotions or other
activity that might result in a material increase in
traffic on Customer’s network. Cox is in no way
liable for any damages resulting from Customer’s
failure to ‘toggle off’ as may be needed or advisable
in connection with any Customer related activities.

Customer is solely responsible for contacting Cox
Customer Care to request that the DDoS Mitigation
Essential Service be ‘toggled on’ once Customer is
prepared to resume use of the DDoS Mitigation
Essential Service after requesting a ‘toggle off.’
Customer is not entitled to receive any credit,
reduction in MRC or other remedy for any period of
time during which the DDoS Mitigation Essential
Service is ‘toggled off.’
Cox is not liable for any damages of any kind related
to the failure of DDoS Mitigation Essential Service to
prevent any DDoS attack or other intrusion, nor the
impact of collateral damage, and neither shall
constitute a default under this Agreement. As a nonmanaged, automated policy-driven best efforts Service, DDoS Mitigation Essential Service may be
unavailable during periods of Cox network outages,
maintenance and/or upgrades. Priority is given to
protecting Cox infrastructure, and accordingly,
Customer mitigations may be adjusted, suspended
and/or terminated as necessary to prioritize resources
for Cox internal network infrastructure protection. The sole and exclusive remedies for Customer in
connection with any of the foregoing items set forth in this Section E4(b) shall be those set forth in the
applicable Cox Service Level Agreement, which is
expressly incorporated in Customer’s Agreement, if
any.

E5. Dark Fiber Services. This Agreement is not
intended for dark fiber services. Notwithstanding
anything to the contrary in this Agreement, if dark
fiber services are covered under this Agreement, Cox
reserves the right, in its sole discretion, to terminate this Agreement (or any portion thereof) upon five (5)
days’ written notice to Customer.
554
42 E6. Colocation Services. This Agreement is not
intended for colocation services. Notwithstanding
anything to the contrary in this Agreement, if
colocation services are covered under this
Agreement, Cox reserves the right, in its sole
discretion, to terminate this Agreement (or any
portion thereof) upon five (5) days’ written notice
to Customer.

E7. Cox Business Security Solutions. This
Agreement is not intended for Cox Business
Security Solutions or any other business security
product. If said services are covered under this
Agreement, Cox reserves the right, in its sole
discretion, to terminate this Agreement (or any
portion thereof) upon five (5) days’ written notice
to Customer.

E8. Resale Terms. AS DESCRIBED IN SECTION

A, RESALE OF SERVICES IS STRICTLY PROHIBITED

UNLESS EXPRESSLY AUTHORIZED IN WRITING BY

COX IN THIS AGREEMENT OR FORMAL WRITTEN

AMENDMENT TO THIS AGREEMENT, OR AS
OTHERWISE REQUIRED BY APPLICABLE LAW. A

FORMAL RESELLER AGREEMENT IS PREFERRED TO

RESELL SERVICES AND COX RESERVES THE RIGHT

TO IMMEDIATELY REVOKE ITS PERMISSION TO

ALLOW RESALE AT ANY TIME UPON NOTICE TO
CUSTOMER. Notwithstanding, if Cox expressly
authorized the Customer to resell the Service(s) (or
any portion thereof) in writing in the Agreement or
formal written amendment to said Agreement
and/or the right to resell is required by applicable
law, the following reseller terms shall apply: The
end user customer(s) that Customer resells
Service(s) to is defined as the “Reseller
Customer(s)”. Reseller Customers shall only be
business customers. Customer shall not resell
Services to any residential end user. Cox may, but
reserves the right not to, make commercial Services
(excluding video services which are expressly
prohibited) available to Customer so that Customer
may offer these Services to its Reseller Customer(s)
subject to the restrictions and the conditions
contained in this provision and the Agreement. The
Services are subject to Customer’s and its Reseller
Customer’s compliance with the AUP which may be
found at coxbusiness.com/acceptableusepolicy. Cox
may terminate Services to Customer and/or any
Reseller Customer if Cox reasonably determines
Customer or any Reseller Customer is violating this
Agreement or the AUP. Cox further reserves the
right, in its sole discretion, to reject or terminate
any agreement or order for Services to Customer
and/or any Reseller Customer at any time during the
Term of this Agreement. Customer shall be solely
responsible for determining the pricing of Services
provided by Customer to its Reseller Customer.

Customer agrees that: 1) Customer is responsible for
providing all support to Reseller Customers using the
Service and shall not have its Reseller Customer
contact Cox directly in the event support is needed;
2) Customer shall not make any guarantees to its
Reseller Customers regarding availability or speed of
the Service(s); 3) Customer shall not (i) use any Cox
trademarks or logos, (ii) market or sell the Service(s) using any Cox trademarks or logos, or (iii) represent
to any third party that Customer is, or is acting on
behalf of, Cox in its provision of the Services to
Reseller Customers; 4) neither Customer nor any
Reseller Customer(s) receiving Services from
Customer hereunder may resell the Services to any
existing customer or currently contracted customer of
Cox or any of Cox’s Affiliates that is receiving Services directly from Cox; 5) Customer shall not permit any
Reseller Customer to resell the Service(s) without
obtaining Cox’s prior written consent, which consent
may be withheld in Cox’s sole discretion;
6) Customer is responsible for ensuring that all
Reseller Customers using the Service agree to the
terms of Cox's AUP, as amended from time to time
and available on Cox's website; 7) if Customer
becomes aware of a violation of the AUP by any
Reseller Customer, Customer shall suspend the
Service to such Reseller Customer and notify Cox;
8) Cox reserves the right to terminate or suspend
Service to Customer and/or any Reseller Customer
using the Service if, in Cox's sole discretion, the
AUP is violated; and 9) if Customer provides
the Service to more than one Reseller Customer and
a violation of the AUP occurs, Cox may suspend or
terminate service to all Reseller Customers and
Customer, as Cox does not have the ability to
determine which entity is responsible for the
violation. Customer shall remain fully responsible
for all charges and liability for the Service(s). Upon
expiration, cancellation or termination of this
Agreement, Cox reserves the right to terminate all
Services provided to Customer and each of the
Reseller Customers receiving Services from
Customer upon providing Customer with written
notice of termination. Customer will defend,
indemnify, and hold harmless Cox and its Affiliates,
officers, directors, employees, agents and
contractors from and against any and all loss,
liability, damage and expense (including reasonable
attorneys’ fees) arising out of any demand, claim,
555
43 suit or judgment for damages for (i) any claims by
any Reseller Customer(s) arising out of, or
connected to, Customer and/or its Reseller
Customer(s) ability or inability to use the
Services, including, without limitation, claims
arising from content contained in or obtained
through the Service, service interruptions, service
outages, or failure of Cox to provide the Services
as contemplated under this Agreement; (ii) any
claims relating to any Reseller Customer’s
violations of the AUP; and/or (iii) willful misconduct
or illegal conduct of Customer and/or their Reseller
Customers in connection with the use of the
Services.

Customer shall be solely responsible for the costs
and expense of branding, marketing and promoting
its services to Reseller Customers. Customer may
brand the Services under its own brand provided
that the branding is not confusing and does not use
nor infringe on any Cox brands, service marks, or
trademarks. Neither party shall be authorized to
use the brands, service marks or trademarks of the
other without the prior written consent which
consent may be withheld in such party’s sole
discretion.

Customer is solely responsible for arranging all
necessary rights of access for Cox from the public
rights of way to any Reseller Customer’s premises,
including space for cables, conduits, and equipment
as necessary for Cox-authorized personnel to
install, repair, inspect, maintain, replace or remove
any and all facilities and equipment provided by Cox
and Customer shall be solely responsible for the
costs of same. Customer shall diligently pursue
execution of any access agreement in a timely
manner as requested by Cox. Customer shall
ensure that Reseller Customer will provide a
secured space with electrical power, climate control
and protection against fire, vandalism, and other
casualty for any Cox Equipment. Cox will use
reasonable efforts to make the Services available by
the requested service date provided Customer first
secures Cox access to the premises. Cox shall not
be liable for damages for delays in meeting service
dates due to install delays or reasons beyond Cox’s
reasonable control, including, without limitation,
Customer’s failure to arrange access. If a Reseller
Customer delays installation or is not ready to
receive Services on the agreed-upon installation
date, Cox may begin billing for Services on the date
Services would have been installed. If a Reseller
Customer delays installation for more than ninety
(90) days after the execution of the applicable
agreement for services, Cox reserves the right to
terminate the applicable agreement by providing
written notice to Customer and Customer shall be
liable for Cox’s reasonable costs incurred.

E9. Technical Support Services.
(a) Cox Business Tech Solutions. If Customer
purchases Cox Business Tech Solutions, such
service will be subject to this Agreement and to the
terms and conditions located at
www.coxbusinesstechsolutions.com (the “Cox
Business Tech Solutions Website”). Cox may
change the terms and conditions located at the Cox
Business Tech Solutions Website at any time. In the
event of a conflict between this Agreement and the
terms and conditions located at the Cox Business
Tech Solutions Website, the terms and conditions
located at the Cox Business Tech Solutions Website
shall control. Notwithstanding anything to the
contrary in this Agreement, at the end of the Initial
Term commitment for the Cox Business Tech
Solutions Service, the term will continue on a
month-to-month basis until terminated by either
party on thirty (30) days’ notice. During the monthto-month extension, Cox may increase the price for Cox Business Tech Solutions at any time by
providing notice to Customer.
(b) Cox Business Complete Care. If Customer
purchases Cox Business Complete Care, such
service will be subject to this Agreement and to the
additional terms and conditions posted in the
policies section at
https://www.cox.com/aboutus/policies/businesscompletecare-terms.html (“CBCC Terms”). Cox may modify the CBCC Terms at any time without
notice. In the event of a conflict between this
Agreement and the CBCC Terms, the CBCC Terms
shall control. Notwithstanding anything to the
contrary in this Agreement, at the end of
the InitialTerm commitment for the Cox
Business Complete Care Service, the term will
continue on a month-to- month basis until
terminated by either party on thirty (30) days’
notice. During the month-to- month
extension, Cox may increase the price for
Cox Business Complete Care at any time by
providing notice to Customer.

E10. Cox Business Service Assurance Plan
Terms and Conditions.
556
44 If Customer elects to purchase the Cox Service
Assurance Plan (the “Assurance Plan”), Customer
shall be subject to the terms and conditions of this
Agreement, including the following terms and
conditions contained in this Section.

E10.1. Agreement. Customer hereby agrees to
the terms and conditions of this Assurance Plan
upon the execution of a Commercial Services
Agreement containing a line item for the Assurance
Plan. The term of the Assurance Plan shall be
coterminous with the term of any Services
purchased by Customer under this Agreement.

Customer agrees and acknowledges that the
Assurance Plan must remain in effect for a minimum
of twelve (12) consecutive months. Customer may
terminate the Assurance Plan at any time after the
initial twelve (12) months. If Customer terminates
the Assurance Plan before the end of the initial
twelve (12) months, Cox reserves the right to
charge Customer the difference between (a) the
amounts paid by Customer under the Assurance
Plan as of the termination date and (b) the total
costs incurred by Cox for any Services or equipment
provided to Customer under the Assurance Plan
during the initial twelve (12) month period—i.e.,
truck rolls, wiring and equipment costs, and any
other time & materials-based costs. Customer is not
required to subscribe to the Assurance Plan to
receive communications Services from Cox. Key
systems or PBXs used by Customer to support their
Services are not covered under the Assurance Plan.

E10.2. Customer Obligations. Customer is
responsible for maintaining and repairing all inside
wiring including standard telephone jacks
(collectively, “Inside Wiring”) located on Customer’s
side of the punch-down box (or 66 block), which will
be installed by Cox at the Premises. For multitenant office locations, the Inside Wiring is the wiring located inside of the offices leased to
Customer or the business Premises that serves
Customer’s unit or leased area. Inside Wiring may
be repaired by (i) Customer, (ii) any third party
vendor at Customer’s sole cost and expense, or (iii)
Cox, subject to the terms and conditions of this
Service Assurance Plan. Customer is required to
reconnect all electronic equipment to the Inside
Wiring, including reprogramming of Customer’s
equipment that may be required due to loss of
Inside Wiring connectivity. Customer is responsible
for all damage to the Premises caused by the
installation, repair or replacement of Inside Wiring
including without limitation, wall board holes, wood
trim damage, and other defacement due to
attachment of wiring, staples, hooks, and adhesives.

E10.3. Assurance Plan Coverage. The
Assurance Plan only provides coverage for repairs
and replacement of Inside Wiring used to provide
Cox voice Services provisioned on the Cox network
within the Premises. Under this Assurance Plan,
provided that Customer pays the Charges (as
defined below) and maintains Cox telephone
Services at the applicable location, Cox will perform
a diagnostic analysis of Customer’s telephone
line(s) if Customer calls in a trouble ticket. This
feature of the Assurance Plan may require a service
call to Customer’s location by a Cox technician. At
Cox’s discretion, subject to (i) exclusions and
conditions contained in this Assurance Plan and (ii)
the approval of Customer and/or the owner of the
Premises, Cox will either repair or replace
Customer’s Inside Wiring at no additional charge to
Customer. Customer acknowledges that
replacement of Inside Wiring may require surface
mounting of wiring and exterior mounted jacks.

Installation of concealed wiring and flush-mounted
jacks may be subject to additional charges.

E10.4. Assurance Plan Charges. Customer shall
pay Cox the monthly recurring charges (“Charges”)
set forth in Customer’s invoice for the Assurance
Plan. The Charges are assessed in accordance with
the chart below. Cox reserves the right to modify
the Charges by providing Customer thirty (30) days
prior written notice via (i) bill insert, (ii) written
notice set forth on the invoice; or (iii) a separate
written notice.

E10.5. Additional Conditions and Scope of the
Assurance Plan.
a) Any Customer who has purchased Cox
VoiceManagerSM or Cox IP Centrex service that
is not terminated into a key system is eligible for
this service.
b) For Customers who lease telephones from Cox, or
subscribe to Cox IP Centrex service, the Charges
for the Assurance Plan are based on the total
number of telephones sets leased by Customer.
c) The Assurance Plan does not include coverage for
the installation of new Inside Wiring installed
during the term of this Agreement.

E10.6. The following services are included in the
Assurance Plan:
557
45 a) Repair and replacement of wire from the
Demarcation Point to a telephone jack;
b) Replacement of fittings, splitters, amplifiers and
outlets installed or existing in accordance with
accepted industry standards, as determined by
Cox in its sole discretion;
c) Cox-supplied wiring that is installed at the time
of installation of a Cox voice service;
d) Provide analysis on Customer-owned equipment
that may be impeding Cox Service;
e) Identification and verification that Cox-owned
equipment and Cox Services are working
properly;
f) Identification of incorrect Customer
connections; and
g) Identification of unauthorized outlets or jacks.

E10.7. The following services are excluded
from coverage under the Assurance
Plan:
a) Installation of new inside wiring or outlets;
b) Fees associated with installation, removal, or
relocation of, or change to, Cox services;
c) Wiring used for fiber optics;
d) Any wiring that supports a competitor's service
offering;
e) Repairs required due to faulty Customer
equipment;
f) Repair of wiring which does not meet industry
standards, Federal Communications
Commission rules or the National Electrical
Code;
g) Repair of wiring concealed with a wall unless
Customer removes and replaces all obstructions
(wall board, ceilings, flooring, etc.) to allow Cox
access to wiring;
h) Repair or replacement of telephone equipment
unless provided by Cox;
i) Pre-existing condition or problem with Inside
Wiring or telephone jacks causing out of
service conditions. Examples include, without
limitation, non-standard install practices,
wiring problems (such as stapling, etc.)
caused by Customer or any third party, and
dangerous electrical or wiring issues;
j) Riser cables;
k) Installation or relocation of jacks or outlets;
l) "Wall fishing" or "wall punching" that may be
required to perform wiring repairs;
m) Repair or replacement of Customer-owned
equipment (equipment may be covered by a
warranty) and wire that connects such
equipment;
n) Swapping or changing out Cox or Customerowned equipment; o) Computer configuration assistance;
p) Repair or replacement of receiver, remote units,
including battery replacement;
q) Installation of entertainment systems and
related equipment; or
r) Wiring damage caused by Force Majeure,
vandalism, fire, flood, earthquake, Acts of God,
remodeling, gross negligence or willful damage.

As to any question of whether services are included
or excluded from the Assurance Plan, Cox will be the
sole party authorized to make the determination.

E10.8. LIMITATION OF LIABILITY. IN ADDITION

TO ANY OTHER LIMITATION OF LIABILITY

PROVIDED UNDER THE AGREEMENT, COX AND ANY

COX RELATED PARTY SHALL NOT BE LIABLE FOR

ANY OTHER DAMAGES INCLUDING, BUT NOT

LIMITED TO, INDIRECT, INCIDENTAL, SPECIAL OR

CONSEQUENTIAL DAMAGES ARISING FROM

CUSTOMER'S USE OR INABILITY TO USE THE

INSIDE WIRING WHETHER COVERED BY THE
ASSURANCE PLAN OR OTHERWISE. COX’S

MAXIMUM LIABILITY FOR DAMAGES CAUSED BY

REPAIR OR REPLACEMENT OF INSIDE WIRING

UNDER THIS ASSURANCE PLAN SHALL BE LIMITED
TO THE LESSER OF: (I) ALL AMOUNTS PAID BY

CUSTOMER UNDER THE ASSURANCE PLAN OR (II)
$250.00. NEITHER COX NOR ANY COX RELATED

PARTY WILL BE LIABLE FOR THE REPROGRAMMING

OR MALFUNCTION OF EQUIPMENT CONNECTED TO

THE INSIDE WIRING SUCH AS ALARMS, METERS,

SENSORS, TELEPHONE EQUIPMENT OR OTHER
DEVICES.

E11. MalBlock Service Terms and Conditions.

If Customer elects to purchase the Cox MalBlock
Service (as “MalBlock Service” is defined below),
use of the MalBlock Service shall be subject to the
terms and conditions of the Agreement, including
the following terms and conditions contained in this
Section E11.

E11.1 General. The “MalBlock Service” is a service
designed to prevent Customer’s (i) Local Area
Network (LAN) connected devices or (ii) Corporate
Wi-Fi connected devices from accessing known
malicious or unwanted Internet domains when
Customer is utilizing Cox Internet Service. For the
purpose of this Section E11, “Corporate Wi-Fi” shall
558
46 mean the Wi-Fi network provided by Customer to its
employees which uses the same configurations and
settings as the applicable Customer LAN. Customer
is responsible for configuring its LAN and Corporate
Wi-Fi so that the MalBlock service applies to the
devices connected to such LAN and Corporate Wi-Fi.

Further, Customer shall be required to manually
configure any Internet device using static DNS
providers in order for MalBlock Service to function
on such device. Customer acknowledges and
understands that the MalBlock Service is not an
antivirus or firewall software and will not protect
against inbound attacks on Customer’s network.

MalBlock Service will not block an Internet domain
unless (i) Cox has blacklisted such Internet Domain
and determined, in its sole discretion, that such
Internet domain is potentially malicious or (ii)
Customer has configured its web filtering policies to
prevent access to such Internet domain or category
of Internet domains in which such Internet domain
may be included. Customer shall be solely
responsible for configuring its web filtering policies
and Cox shall have no responsibility, or liability, with respect to the same.

E11.2 Underlying Cox Internet Service
Requirement. To receive MalBlock Services,
Customer must purchase and maintain Cox Internet
Service at all times during the Term, it being
understood that the MalBlock Service cannot
operate without such underlying Cox Internet
Service. Any termination or discontinuation of such
Cox Internet Service Services may result in an
immediate termination or discontinuation of the
MalBlock Services, which may subject Customer to
the applicable early termination fees.

E11.3 Exclusions. MalBlock Service will not
prevent an Internet connected device from
accessing Internet domains if such device:
(i) is not utilizing a Cox Internet Service
(ii) is not connected to the internet via
Customer’s correctly configured LAN or
Corporate Wi-Fi
(iii) is connected to the Internet via
Customer’s ‘Guest’ Wi-Fi network, or
any other Wi-Fi network other than
Customer’s correctly configured
Corporate Wi-Fi, including one provided
by Cox, or
(iv) is connected via direct IP-to-IP
communication (including via virtual
private network technology).
(v) is connected to the internet through LTE
backup service.

E11.4 No Warranty and Limitation of Liability.

Customer acknowledges and agrees that the
MalBlock Service is a best-effort service and may
not be error-free. Cox shall have no liability for any
failures by the MalBlock Service to prevent
Customer’s LAN or Corporate Wi-Fi connected
devices from accessing malicious or unwanted
internet domains that were intended to be blocked
by (i) Cox’s pre-determined blacklist or (ii)
Customer’s web and internet domain filtering
policies. The MalBlock Service is further subject to
any and all disclaimers of warranty and limitations
of liability provided for within this Agreement or
General Terms, including, without limitation,
Section A20 of the General Terms.

E11.5 Service Level Agreement. Cox offers no
Service Level Agreement for MalBlock Services.

E12. Third Party Service. If Customer elects to
purchase a third-party provided service via Cox
(“Third-Party Service”), use of the Third-Party
Service shall be subject to the terms and conditions
of the Agreement, including the following terms and
conditions contained in this Section E12.

E12.1 Third-Party Provided Service and
Customer Data. Customer acknowledges and
understands that if it purchases a Third-Party
Service through Cox, Customer expressly
authorizes Cox to share Customer’s information
with the third-party provider, including, without
limitation, Customer’s name, telephone number(s),
and email addresses.

E12.2 Access and Log-in Requirements. In order
to use Third-Party Services, Customer
acknowledges and understands that it may need to
install, sign-in, and utilize an application or other
platform provided by the third-party. Further,
Customer may be required to agree to certain
notices and disclaimers, terms of service, privacy
statements, and other third-party requirements
(collectively, the “Third-Party Agreements”) with
the third-party provider. Customer acknowledges
that Cox is not a party to the Third-Party
Agreements. However, these Third-Party
Agreements shall not modify or supersede
Customer’s agreement with Cox or any of
Customer’s obligations in this Agreement.
559
47 E12.3 Warranty Disclaimer and
Indemnification for Third-Party Service.
(a) WARRANTY DISCLAIMER. IN ADDITION TO

ANY OTHER DISCLAIMER OF WARRANTIES

DESCRIBED IN THE AGREEMENT, INCLUDING,
WITHOUT LIMITATION, SECTION A20 OF THE

GENERAL TERMS, COX HEREBY EXPRESSLY

DISCLAIMS ALL WARRANTIES AND MAKES NO

REPRESENTATIONS OF ANY KIND RELATED TO THE
THIRD-PARTY SERVICE. COX AND ANY COX

RELATED PARTIES SHALL HAVE NO LIABILITY IF

THE THIRD-PARTY SERVICE FAILS, CONTAINS
ERRORS, OR IS OF POOR QUALITY. COX AND ANY

COX RELATED PARTIES SHALL HAVE NO LIABILITY
FOR CUSTOMER’S USE OF THE THIRD-PARTY
SERVICE. COX AND ANY COX RELATED PARTIES

SHALL HAVE NO LIABILITY FOR ANY CUSTOMER

INFORMATION SHARED WITH THE THIRD-PARTY
PROVIDER.
(b) Indemnification for Third-Party Service.

Customer shall indemnify, defend and hold
harmless Cox, its Affiliates, employees, directors
and shareholders and the Cox Related Parties from
all claims arising from or related to Customer’s use
of the Third-Party Service.

E13. Endpoint Protect Service Terms and
Conditions.

If Customer elects to purchase the Cox Endpoint
Protect Service (“Endpoint Protect”), use of
Endpoint Protect shall be subject to the terms and
conditions of the Agreement, including the following
terms and conditions contained in this Section E13.

E13.1 License Grant. Subject to the terms of the
Agreement, Cox grants Customer a limited, nonexclusive, revocable, and nontransferable license to download, install, access and use Endpoint Protect
for Your personal, non-commercial use strictly in
accordance with the terms and conditions set forth in
the Agreement.

E13.2 Use Restrictions. Customer agrees to use
Endpoint Protect only in compliance with any
applicable federal, state, and local law, statutes, and regulations. Customer will not: (i) sublicense, lease,
rent, loan, transfer, or distribute Endpoint Protect to any third party; (ii) modify or prepare derivative
works from Endpoint Protect; (iii) decompile or
reverse engineer Endpoint Protect; (iv) publicly
disseminate the results of any benchmarking studies
related to Endpoint Protect; or (v) permit third
parties to sell Endpoint Protect.

E13.3 Feedback. Customer may, at its sole
discretion, provide input regarding Endpoint Protect,
including, without limitation, comments or
suggestions regarding the possible creation,
modification, correction, improvement or
enhancement of Endpoint Protect (collectively
“Feedback”). Cox and/or its licensors shall be entitled to use Feedback for any purpose without notice,
restriction or remuneration of any kind to Customer.

E13.4 U.S. Government Rights. If Endpoint
Protect is being used by or licensed to the United
States Government, the following shall apply:

Endpoint Protect and related documentation are
commercial products and services as defined in FAR

12.212 and subject to restricted rights as defined in
FAR Section 52.227-19 and DFARS 227.7202, as
applicable, and any successor regulations, and
Endpoint Protect is developed exclusively at private
expense. Use, modification, duplication, or disclosure
by the U.S. Government shall be solely in accordance
with the terms of the Agreement and is subject to
the restrictions set forth in subparagraph (c) of the
Commercial Computer Software Restricted Rights
clause of FAR 52.227-19.

E13.5 Intellectual Property. Customer
acknowledges that title and full ownership rights to
Endpoint Protect will remain the exclusive property
of Cox or its licensors, and Customer shall not
acquire any rights to Endpoint Protect except for the
limited rights as expressly set forth in the
Agreement. Customer further acknowledges that the
confidential components of Endpoint Protect are the
confidential information of Cox or its licensors.

E13.6 Disclosures Regarding Use of Endpoint
Protect. Customer acknowledges that (i) Endpoint
Protect may lead to access restrictions, data loss,
loss of privacy, or any combination of the foregoing
as a result of lock or wipe commands, removal of
temporary files, registry keys or browser data, file
scanning, remote endpoint monitoring, interception
and monitoring of Internet traffic, or as a result of
any other functionality of Endpoint Protect, and (ii)
neither Cox nor its licensors will have any liability to Customer or any third party for any damages related
to such access restrictions, data loss, or loss of
privacy.

E13.7 Disclosures Regarding Endpoint Protect
Administrative Rights. Customer acknowledges
that (i) users of Endpoint Protect that have
560
48 administrative rights may have capabilities to use
Endpoint Protect to interfere with and monitor the
usage of devices protected by Endpoint Protect, and
(ii) neither Cox nor its licensors have any liability to Customer or any third party in connection with the
use of such administrative rights by Customer, an
end user, or any other party.

E13.8 Export Controls. Customer acknowledges
and agree that Endpoint Protect may be subject to
export controls in the United States and other
countries. Customer agrees to comply with all United
States export laws and regulations and with all
export or import regulations of other countries, and
Customer shall not and shall not allow any thirdparty to remove or export from the United States or allow the export or re-export of any part of Endpoint
Protect or any direct product thereof (i) into (or to a national or resident of) any embargoed or terroristsupporting country; (ii) to anyone on the U.S.

Commerce Department's Table of Denial Orders or
U.S. Treasury Department's list of Specially
Designated Nationals; or (iii) to any country to which
such export or re-export is restricted or prohibited,
or as to which the United States government or any
agency thereof requires an export license or other
governmental approval at the time of export or reexport without first obtaining such license or approval. Customer assumes sole responsibility for
any required export approval and/or licenses and all
related costs and for the violation of any United
States export law or regulation.

E13.9 Additional Restrictions. Customer is
prohibited from using Endpoint Protect if Customer is
a citizen, national, or resident of, or is under control of the government of: Cuba, Iran, Sudan, North
Korea, Syria, or any other country to which the
United States has prohibited export. Each time
Customer uses Endpoint Protect Customer
represents, warrants, and covenants that (i)
Customer is not a citizen, national, or resident of, nor under the control of the government of any such
country to which the United States has prohibited
export; (ii) Customer will not download or otherwise
export or re-export Endpoint Protect, directly or
indirectly, to the above mentioned countries nor to
citizens, nationals or residents of those countries;
(iii) Customer is not listed on the U.S. Department of
Treasury's Lists of Specially Designated Nationals,
Specially Designated Terrorists, and Specially
Designated Narcotic Traffickers, the U.S.

Department of State's List of Statutorily Debarred
Parties, or the U.S. Department of Commerce's
Denied Persons List, Entity List, or Unverified List
Table of Denial Orders; (iv) Customer will not
download or otherwise export or re-export Endpoint
Protect, directly or indirectly, to persons on the above mentioned lists; (v) Customer will neither use nor allow Endpoint Protect to be used for any purposes
prohibited by United States federal or state law,
including, without limitation, for the development,
design, manufacture, or production of nuclear,
chemical, or biological weapons of mass destruction;
(vi) Endpoint Protect will not be exported, directly, or indirectly, in violation of these laws, nor will the
Endpoint Protect be used for any purpose prohibited
by these laws including, without limitation, nuclear,
chemical, or biological weapons proliferation; and
(vii) Customer will not use or permit others to use
Endpoint Protect to create, store, backup, distribute,
or provide access to child pornography or any other
content or data which is illegal under the relevant laws of the United States, Switzerland, Singapore or
Customer’s jurisdiction.

E14. Webex. Customer’s use of Webex, Webex
Meetings, Webex App, or such other similar service
from Cisco or Broadsoft (“Webex Services”) are
subject to certain third-party terms or policies including (as applicable): (i) the Cisco End User License
Agreement found at <www.cisco.com/go/eula>, (ii)
the Customer Master Data Protection Agreement
found at
<trustportal.cisco.com/c/dam/r/ctp/docs/dataprotect
ion/cisco-master-data-protection-agreement.pdf>,
and (iii) the Cisco Privacy Data Sheets for Webex
Meetings and Webex App found at
<trustportal.cisco.com/c/r/ctp/trustportal.html#/customer_transparency>. These and other third-party terms and policies are subject to
change and may be updated from time to time without
notice. Customer’s use of such Webex Services
constitutes Customer’s agreement to be bound by
these third-party terms and policies, and Customer is
responsible for complying with all applicable thirdparty terms and policies. For clarity, Webex Services are a Third Party Service. In addition to all other
disclaimers of warranties, including, without
limitation, Sections A20 and E12.3(a), Webex
Services are provided “as is” and used at Customer’s
own risk.
561
49 F. Terms and Conditions Applicable to
Cloud Services and Services Provided by or
Resold by RapidScale
In addition to all provisions in Section A above, the
provisions of Section F shall also apply to all Cloud
Service(s):

F.1 Cloud Services – General. Cox’s
obligations under the Agreement may be
performed by its Affiliates, including, but not
limited to, RapidScale, Inc. (“RapidScale”).

Services provided by RapidScale are subject to the
“RapidScale Terms and Conditions” at
https://rapidscale.net/terms-and-conditions
which are incorporated into this Agreement by this
reference. For any Service provided by RapidScale
under this Agreement, in the event of a conflict
between the RapidScale Terms and Conditions and
these General Terms, the RapidScale Terms and
Conditions shall control. This Agreement may
include RapidScale Statements of Works signed
that are signed by both Parties and any other
documents that are expressly incorporated herein
(collectively, the “Service Document(s)”).

F.2 Professional Services. Any requests for
ancillary professional Services not described in the
applicable Service Documents may be provided on
an individual case basis as agreed to in writing
signed by both parties. Such professional Services
(“Professional Services”) are billable at Cox’s or
RapidScale’s then- current standard hourly rate,
as applicable.

F.3. Responsibility for Account, Content
and Data. Customer is responsible for all
activity that occurs via the Customer account. If
Customer becomes aware of any unauthorized
use of the Cloud Services, Customer account
and/or passwords, Customer will notify Cox as
promptly as possible. Customer is solely
responsible for all data and content that
Customer or any end user makes available on,
uses, shares and/or processes through the Cloud
Services. Customer will obtain and maintain any
required consents necessary to permit the
processing and use of such content and data
under the Agreement by the Cloud Services.

CUSTOMER IS SOLELY RESPONSIBLE FOR

BACKING UP CUSTOMER DATA AND CONTENT,

UNLESS EXPRESSLY AGREED OTHERWISE IN
WRITING.

F. 4. Third Party Products. Certain Cloud
Services are provided to Customer via third
parties and may be subject to separate thirdparty terms and conditions. To the extent such third-party terms and conditions supersede or
otherwise conflict with the Agreement, such
third-party terms and conditions govern
Customer’s use of that third- party Service.

F.5 Access to Data. For certain Services, Cox
backs up Customer systems on a periodic basis
so that Cox is able to more quickly restore the
systems in the event of a failure. These backups
are made on a snap-shot basis and, therefore,
capture only the information that exists on the
system at the time of the backup. In addition, Cox
may destroy all but the most recent backup.

These backups may not be available to Customer
or, if available, may not be useful to Customer
outside of the Cox environment.

F.6 Data Processor. Cox is a data processor
and not a data controller (i.e., Customer is the
data controller).

F.7 Maintenance. Customer acknowledges that
the Cloud Services may be subject to
maintenance or repair and agrees to cooperate
in a timely manner and provide reasonable
access and assistance as necessary to allow such
maintenance or repair.

F.8 Internet Data Center. This subsection shall
apply, if Customer and/or its authorized
representatives have access to Cox’s Internet
Data Center(s) (“IDC”) as a part of Cloud
Services. The provisions in this subsection are in
addition to, and to the extent not in conflict with,
the rules of the individual IDC or Cox security or
related policies. Only those individuals properly
authorized by Cox’s Network Operations Center
in accordance with Cox’s security policies shall be
permitted access the IDCs. Customer shall
deliver prior written notice to Cox of any
personnel for which Customer desires to provide
IDC access (“Authorized Personnel”) in
accordance with Cox security policies. Customer
and its Authorized Personnel shall not allow any
unauthorized persons to have access to or enter
any IDC, such as by “tailgating” or any other
means. Customer and its Authorized Personnel
may only access that portion of an IDC made
available by Cox to Customer for the placement
of Customer’s equipment and use of the IDC
Cloud Services (the “Customer Area”), and
common areas of the IDC (e.g., entryways and
562
50 bathrooms), unless otherwise approved and
accompanied by an authorized Cox
representative. Customer and its Authorized
Personnel shall adhere to and abide by all
security and safety measures established by Cox
from time to time and set forth in the Customer
Guide provided by Cox to Customer or posted at
the IDC. Customer and its Authorized Personnel
shall not:
(a) touch, inspect, interface, or interfere with,
use, misuse, or abuse any Cox or third party’s
property or equipment; (b) harass or interfere
with the normal activities of any individual,
including Cox or other customers’ employees or
authorized representatives; or (c) engage in or
assist another in engaging in any activity that is
in violation of the law or this Agreement.

Customer and its Authorized Personnel shall keep
each Customer Area clean, free, and clear of
debris and refuse. Customer shall not, except as
otherwise agreed to in writing by Cox: (a) place
any computer hardware or other equipment in
the Customer Area that is not required for the use
or implementation of Cloud Services or which
contains any combustible or hazardous material;
(b) store any paper products or other
combustible materials of any kind in the
Customer Area (other than equipment manuals);
or (c) bring any Prohibited Materials (as defined
below) into any IDC. “Prohibited Materials”
include, without limitation, the following and any
other similar items: food and drink; tobacco
products; explosives and weapons; hazardous
materials of chemicals; alcohol, illegal drugs,
and other intoxicants; magnets or electromagnetic devices; radioactive materials; or photographic or recording equipment of any kind
(other than tape or digital backup equipment
used exclusively for the Customer’s own
equipment). Each piece of equipment installed in
a Customer Area (the “Customer Equipment”)
must be clearly labeled with Customer’s name
(or code name provided in writing to Cox) and
individual component identification. All Customer
Equipment shall be identified in writing by
Customer and each connection to and from a
piece of Customer Equipment shall be clearly
labeled with Customer’s name (or code name
provided in writing to Cox) and the starting and
ending point of the connection. Customer
Equipment must be configured and run at all
times in compliance with the manufacturer’s
specifications, including power outlet, power
consumption, and clearance requirements.

Customer must provide Cox with at least 48
hours prior notice any time Customer intends to
connect or disconnect any Customer Equipment
or other equipment.
563
910 Calle Negocio
2nd Floor
San Clemente, California
www.san-clemente.org

AGENDA REPORT

CITY OF SAN CLEMENTE

CITY COUNCIL MEETING
CITY OF SAN CLEMENTE 1
Meeting Date: December 10, 2024 Agenda Item: 11K.

Submitted By: Finance and Administrative Services
Prepared By: Brian Brower, Administrative Services Director Subject:
..titl e
CONSIDERATION OF RESOLUTION NO. 24-203 AUTHORIZING AN EXEMPTION TO THE

FORMAL SOLICITATION PROCESS, APPROVING A PROFESSIONAL SERVICES AGREEMENT AND MASTER SERVICES AGREEMENT WITH CIVIC PLUS, INC. FOR THE

CIVICREC RECREATION MANAGEMENT SYSTEM AND AUTHORIZING THE CITY

MANAGER TO ENTER INTO THE AGREEMENTS IN AN AMOUNT NOT TO EXCEED $141,863 OVER A THREE ..body-YEAR TERM
Fiscal Impact:

The cost of the agreements is not to exceed $141,863 over three years. The Year-One and Year-Two costs are within the Fiscal Year 2024-25 and 2025-26 Adopted Budget in the Information Technology Fund, account number 063-241-43456.

Summary:

Since 2017, the City has successfully utilized the CivicRec recreation management software solution to support the processes managed by the Recreation Division. Functions include the administration of program and class registrations, facility and field reservations, memberships, league scheduling, aquatics management, point of sale, event management, community programs, excursions, payment processing, customized reporting and integration with the City’s financial system. The current agreement is due to expire at the end of December, 2024.

Resolution No. 24-203 would approve and authorize an updated Professional Services Agreement (PSA) and Master Services Agreement (MSA) with CivicPlus, Inc. dba CivicPlus for continued use of the CivicRec system for a total cost not to exceed $141,863 over a three-year term. The agreements also provide for continued use of the service with a 5% cost increase for subsequent years.

City Policy 201-2-1 identifies an exemption to the formal solicitation process when the City Council determines by resolution that compliance with the bidding requirements and procedures is inefficient, impractical, or not in the best interest of the City. In this case, extending the relationship with the current service provider will maintain continuity of operations for both customers and City staff, and avoid significant direct costs and/or staff resources related to onboarding, implementation, configuration and training on a new system.

Background:

On February 21, 2017, the City Council awarded contract C17-06 to CivicPlus, Inc. for the implementation of the CivicRec recreation management software system after a formal Request 564
Meeting Date: December 10, 2024 Agenda Item: 11K.

CITY OF SAN CLEMENTE 2
for Proposal (RFP) process. The CivicRec system was successfully implemented and went live in November of 2017.

On September 18, 2018, the City Council approved the First Amendment to the original agreement, which extended the term for an additional three years and increased the total compensation by $90,000. A Second Amendment to the Professional Services Agreement was later executed, extending service for an additional three years by extending the term of the agreement until December 31, 2024 and increasing the total cost by $96,000. The Second Amendment also included the implementation of the CP Pay online payment portal, providing improved security and compliance for credit card transactions.

Under the current agreement, the City pays an ongoing service charge equal to 1.0% of the total revenue processed through the system, totaling approximately $32,000 per year. CivicPlus has since modified their pricing structure to a flat rate model. Pricing under the new model, which includes a new Document Management module to better serve the needs of the City, is shown in the table below:

Year 1 $45,000.00
Year 2 $47,250.00
Year 3 $49,612.50
3 Year Total $141,862.50
As part of its information technology practices, the City maintains ongoing agreements for software-as-a-service (SAAS) subscriptions and technical support for software systems that are critical to City operations. These agreements enable continued use of the software, provide access to updates for functionality and security, and ensure technical support in the event of system instability or failure. Expenditures for software agreements are funded in the Information Technology Fund through the annual budget process. The Year-One and Year-Two costs are within the Fiscal Year 2024-25 and 2025-26 Adopted Budget.

Council Options:
 Adopt Resolution No. 24-203, authorizing an exemption to the formal solicitation process and approving a Professional Services Agreement and Master Services Agreement with Civic Plus, Inc. for the CivicRec Recreation Management System and authorizing the City Manager to enter into the agreements in an amount not to exceed $141,863 over a three-year term.  Modify and adopt Resolution No. 24-203.
 Continue the item with direction to provide additional information.  Do not adopt Resolution No. 24-203.

Environmental Review/Analysis:

Not a “project” under the California Environmental Quality Act. 565
Meeting Date: December 10, 2024 Agenda Item: 11K.

CITY OF SAN CLEMENTE 3
Recommended Actions:

Staff Recommendation ..recommendation
Adopt Resolution No. 24-203, which would:

1. Authorize an exemption to the formal solicitation process under City Policy 201-2-1;

2. Award a Professional Services Agreement and approve a Master Services Agreement with Civic Plus, Inc. for the CivicRec Recreation Management System; and

3. Authorize the City Manager to enter into the agreements in an amount not to exceed $141,863 over a three-year term.
..end
Attachment:

1. Resolution 24-203

2. Proposed Professional Services Agreement with CivicPlus, Inc. for the CivicRec Recreation Management System

3. Master Services Agreement with CivicPlus, Inc.

Notification:

CivicPlus, Inc.
566
Attachment 1
4860-5047-5367 v1
RESOLUTION NO. 24-203

A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF

SAN CLEMENTE, CALIFORNIA, AUTHORIZING AN

EXEMPTION TO THE FORMAL SOLICITATION PROCESS

FOR AND APPROVING THE PURCHASE OF THE

CIVICREC RECREATION MANAGEMENT SYSTEM FROM
CIVICPLUS, INC. AND AUTHORIZING THE CITY

MANAGER TO EXECUTE THE AGREEMENTS RELATED
THERETO IN AN AMOUNT NOT TO EXCEED $141,863

OVER A THREE-YEAR TERM
WHEREAS, as part of its information technology practices, the City maintains ongoing agreements for software-as-a-service (SAAS) subscriptions and technical support for software systems that are critical to City operations; and WHEREAS, on February 21, 2017, the City Council awarded a contract to CivicPlus, Inc. for the implementation of the CivicRec Recreation Management Software System after a formal Request for Proposal (RFP) process; and WHEREAS, since 2017, the City has successfully utilized the CivicRec recreation management software solution to support the processes managed by the Recreation Division, and the current agreement is due to expire at the end of December, 2024; and WHEREAS, City Policy 201-2-1 provides for an exemption from the formal solicitation process when the City Council determines by resolution that compliance with the bidding requirements and procedures is inefficient, impractical, or not in the best interest of the City; and
WHEREAS, it is in the City’s best interest to extend the relationship with the current service provider to maintain continuity of operations for both customers and City staff, and avoid significant direct costs and staff resources related to onboarding, implementation, configuration and training on a new system.

NOW, THEREFORE, the City Council of the City of San Clemente does hereby find, determine and resolve as follows:

SECTION 1. That the above recitations are true and correct and incorporated fully herein.

SECTION 2. That a Professional Services Agreement (PSA) and Master Services Agreement (MSA) is hereby awarded to CivicPlus, Inc. for the continued use of the CivicRec system.

SECTION 3. That the City Manager is authorized and directed to execute the PSA and MSA with CivicPlus, Inc. for continued use of the CivicRec system for a total cost 567
Resolution No. 24-203 Page 2
4860-5047-5367 v1
not to exceed $141,863 over a three-year term in forms substantially similar to those presented to the City Council on December 10, 2024 with any changes thereto approved by the City Manager in consultation with the City Attorney.

SECTION 4. That the City Manager is authorized and directed to execute such other documents and take such other and further actions as are necessary and proper to accomplish the purposes of this resolution.

SECTION 5. That the City Clerk shall certify to the passage and adoption of this resolution and enter it into the book of original resolutions.

PASSED AND ADOPTED this _____ day of December, 2024.
_______________________
Mayor of the City of
San Clemente, California
ATTEST:
__________________________
CITY CLERK of the City of
San Clemente, California
568
Resolution No. 24-203 Page 3
4860-5047-5367 v1

STATE OF CALIFORNIA )
COUNTY OF ORANGE ) §

CITY OF SAN CLEMENTE )
I, LAURA CAMPAGNOLO, City Clerk of the City of San Clemente, California, do hereby certify that Resolution No. 24-203 was adopted at a regular meeting of the City Council of the City of San Clemente held on _______ day of December 2024, by the following vote:

AYES:

NOES:

ABSENT:
_______________________
CITY CLERK of the City of
San Clemente, California
Approved as to form:
____________________________
Elizabeth A. Mitchell, City Attorney
569
1 55452.01100\31193624.5

CITY OF SAN CLEMENTE

PROFESSIONAL SERVICES AGREEMENT

1. PARTIES AND DATE.

This Agreement is made and entered into this _____ day of ________, 2024, by and between the City of San Clemente, a municipal corporation, organized under the laws of the State of California, with its principal place of business at 910 Calle Negocio , San Clemente, California, 92673 ("City" or “Customer”) and CivicPlus, LLC, a Kansas Limited Liability Company, with its principal place of business at 302 S 4th St Suite 500, Manhattan KS 66502 ("Consultant" or “CivicPlus”). City and Consultant are sometimes individually referred to herein as "Party" and collectively as "Parties."

2. RECITALS.

2.1 Consultant.

Consultant desires to perform and assume responsibility for the provision of certain recreation management software services required by the City on the terms and conditions set forth in this Agreement. Consultant represents that it is experienced in providing recreation management software services to public clients, is licensed in the State of California, if applicable, and is familiar with the plans of City.

2.2 Project.

City desires to engage Consultant to render such recreation management software services for the City’s recreation management software services project ("Project") as set forth in this Agreement.

3. TERMS.

3.1 Scope of Services and Term.

3.1.1 General Scope of Services. Consultant promises and agrees to furnish to the City all labor, materials, tools, equipment, services, and incidental and customary work necessary to fully and adequately supply the recreation management software services necessary for the Project ("Services"). The Services are more particularly described in Exhibit "A" attached hereto and incorporated herein by reference. All Services shall be subject to, and performed in accordance with, this Agreement, the exhibits attached hereto and incorporated herein by reference, and all applicable local, state and federal laws, rules and regulations. This Agreement shall also be subject to the terms and conditions outlined in the CivicPlus Master Services Agreement and the applicable Solution and Services terms and conditions available at https://www.civicplus.help/hc/en-us/p/legal-stuff (the "CivicPlus Terms"), as set forth in Exhibit A, which is fully incorporated herein by this reference. In the event of any conflict or inconsistency between the terms of this Agreement and the CivicPlus Terms, the terms of this Agreement shall take precedence.

3.1.2 Term. The term of this Agreement shall be for an initial term from December 21, 2024 to December 20, 2027, unless earlier terminated as provided herein.

The City shall have the unilateral option, at its sole discretion, to renew this Agreement automatically for no more than two additional one-year terms. Consultant shall provide the Services within
DRAFT
Attachment 2
570
2 55452.01100\31193624.5
the term of this Agreement, and shall meet any other established schedules and deadlines.

3.2 Responsibilities of Consultant.

3.2.1 Independent Contractor; Control and Payment of Subordinates. The Services shall be performed by Consultant or under its supervision. Consultant will determine the means, methods and details of performing the Services subject to the requirements of this Agreement. City retains Consultant on an independent contractor basis and not as an employee.

Consultant retains the right to perform similar or different services for others during the term of this Agreement. Any additional personnel performing the Services under this Agreement on behalf of Consultant shall also not be employees of City and shall at all times be under Consultant's exclusive direction and control, the City being only concerned with the finished results of the work being performed. Neither City, nor any of its officials, officers, directors, employees or agents shall have control over the conduct of Consultant or any of Consultant's officers, employees, or agents, except as set forth in this Agreement. Consultant shall pay all wages, salaries, and other amounts due such personnel in connection with their performance of Services under this Agreement and as required by law. Consultant shall be solely responsible for all reports and obligations respecting such additional personnel, including, but not limited to: social security taxes, income tax withholding, unemployment insurance, disability insurance, and workers' compensation insurance. Neither Consultant nor Consultant's employees shall in any event be entitled to any benefits to which City employees are entitled, including, but not limited to, overtime, retirement benefits, workers’ compensation benefits, injury leave or other leave benefits. Consultant is solely responsible for all such matters, as well as compliance with social security and income tax withholding and all other regulations and laws governing such matters.

3.2.2 PERS Eligibility and Employee Payments Indemnification. In the event that Consultant's employee providing services under this Agreement claims or is determined by a court of competent jurisdiction or the California Public Employees Retirement System (PERS) to be eligible for enrollment in PERS of the City, Consultant shall indemnify, defend, and hold harmless City for the payment of any employer and employee contributions for PERS benefits on behalf of the employee as well as for payment of any penalties and interest on such contributions that would otherwise be the responsibility of the City. Notwithstanding any other agency, state or federal policy, rule, regulation, law or ordinance to the contrary, Consultant's employees providing service under this Agreement shall not qualify for or become entitled to, and hereby agree to waive any claims to, any compensation and benefit including but not limited to eligibility to enroll in PERS as an employee of City and entitlement to any contributions to be paid by City for employer contributions and/or employee contributions for PERS benefits. Consultant agrees to defend and indemnify the City for any obligation, claim, suit or demand for tax, retirement contribution including any contribution to the PERS, social security, salary or wages, overtime payment, or workers’ compensation payment that the City may be required to make for work done under this Agreement. The provisions of this section 3.2.2 are continuing obligations that shall survive expiration or termination of this Agreement.

3.2.3 Schedule of Services. Consultant shall perform the Services expeditiously, within the term of this Agreement, and in accordance with Exhibit "A" attached hereto and incorporated herein by reference. Consultant represents that it has the professional and technical personnel required to perform the Services in conformance with such conditions. In order to facilitate Consultant's conformance with the Schedule, City shall respond to Consultant's submittals in a timely manner.

3.2.4 Endorsement on PS&E/ Other Data. [Reserved.]
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3.2.5 Conformance to Applicable Requirements. All work prepared by Consultant shall be subject to the approval of City.

3.2.6 Substitution of Key Personnel. Consultant has represented to City that certain key personnel will not be utilized to perform and coordinate the Services under this Agreement.

3.2.7 City's Representative. The City hereby designates Brian Brower, Administrative Services Director, or his/her designee, to act as its representative in all matters pertaining to the administration and performance of this Agreement ("City's Representative").

City's Representative shall have the power to act on behalf of the City for review and approval of all products submitted by Consultant but not the authority to enlarge the Scope of Work or change the total compensation due to Consultant under this Agreement. The City Manager shall be authorized to act on City's behalf and to execute all necessary documents which enlarge the Scope of Work or change the Consultant's total compensation subject to the provisions contained in Section 3.3 of this Agreement. Consultant shall not accept direction or orders from any person other than the City Manager, City's Representative or his/her designee.

3.2.8 Consultant's Representative. Consultant shall hereby designate an Account Executive to act as its representative for the performance of this Agreement ("Consultant's Representative"). Consultant's Representative shall have full authority to represent and act on behalf of the Consultant for all purposes under this Agreement. The Consultant's Representative shall supervise and direct the Services, using his/her best skill and attention, and shall be responsible for all means, methods, techniques, sequences, and procedures and for the satisfactory coordination of all portions of the Services under this Agreement.

3.2.9 Coordination of Services. Consultant agrees to work closely with City staff in the performance of Services and shall be available to City's staff, consultants and other staff at all reasonable times.

3.2.10 Standard of Care; Performance of Employees. Consultant shall perform all Services under this Agreement in a skillful and competent manner, consistent with the standards generally recognized as being employed by professionals in the same discipline in the State of California. Consultant represents and maintains that it is skilled in the professional calling necessary to perform the Services. Consultant warrants that all employees and subconsultants shall have sufficient skill and experience to perform the Services assigned to them. Finally, Consultant represents that it, its employees and subconsultants have all licenses, permits, qualifications and approvals of whatever nature that are legally required to perform the Services, and that such licenses and approvals shall be maintained throughout the term of this Agreement.

As provided for in the indemnification provisions of this Agreement, Consultant shall perform, at its own cost and expense and without reimbursement from the City, any services necessary to correct errors or omissions which are caused by the Consultant's failure to comply with the standard of care provided for herein. Any employee of the Consultant or its sub-consultants who is determined by the City to be uncooperative, incompetent, a threat to the adequate or timely completion of the Project, a threat to the safety of persons or property, or any employee who fails or refuses to perform the Services in a manner reasonably acceptable to the City, may be promptly removed from the Project by the Consultant, upon receipt of written request from the City, and shall not be re-employed to perform any of the Services or to work on the Project.

3.2.11 Laws and Regulations. Consultant shall keep itself fully informed of and in compliance with all applicable local, state and federal laws, rules and regulations in any manner directly affecting the performance of the Project or the Services, including all Cal/OSHA DRAFT
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requirements, and shall give all notices required by law. Consultant shall be liable for all violations of such laws and regulations in connection with Services. If Consultant performs any work knowing it to be contrary to such laws, rules and regulations, Consultant shall be solely responsible for all costs arising therefrom.

3.2.12 Safety. Consultant shall execute and maintain its work so as to avoid injury or damage to any person or property. In carrying out its Services, the Consultant shall at all times be in compliance with all applicable local, state and federal laws, rules and regulations, and shall exercise all necessary precautions for the safety of employees appropriate to the nature of the work and the conditions under which the work is to be performed.

3.2.13 Insurance. Consultant agrees to procure and maintain, at Consultant’s expense all insurance specified in Exhibit “C” attached hereto and by this reference incorporated herein. Consultant shall require all subconsultants to carry the same policies and limits of insurance that the Consultant is required to maintain, unless otherwise approved in writing by the City.

3.3 Fees and Payments.

3.3.1 Compensation. Consultant shall receive compensation, including authorized reimbursements, for all Services rendered under this Agreement at the rates set forth in Exhibit "A". The total compensation shall not exceed One Hundred and Forty-One Thousand Eight Hundred and Sixty-Three Dollars ($141,863) without written approval of the City Council or City Manager as applicable. Extra Work may be authorized, as described below, and if authorized, will be compensated at the rates and manner set forth in this Agreement.

3.3.2 Payment of Compensation. Consultant shall submit to City an annual invoice which indicates Services rendered by Consultant as set forth in Exhibit A. City shall, within 30 days of receiving such invoice, review the invoice and pay all non-disputed and approved charges thereon. If the City disputes any of Consultant's fees, the City shall give written notice to Consultant within thirty (30) days of receipt of an invoice of any disputed fees set forth therein.

3.3.3 Reimbursement for Expenses. Consultant shall not be reimbursed for any expenses unless authorized in writing by City, or included in Exhibit "A" of this Agreement.

3.3.4 Extra Work. At any time during the term of this Agreement, City may request that Consultant perform Extra Work. As used herein, "Extra Work" means any work which is determined by City to be necessary for the proper completion of the Project, but which the Parties did not reasonably anticipate would be necessary at the execution of this Agreement.

Consultant shall not perform, nor be compensated for, Extra Work without written authorization from the City.

3.3.5 Rate Increases. In the event that this Agreement is renewed pursuant to Section 3.1.2, the rate set forth in Exhibit “A” may be adjusted each year at the time of renewal as set forth in Exhibit “A.”

3.3.6 Labor Code Requirements.

3.3.6.1 Prevailing Wages. Consultant is aware of the requirements of California Labor Code Section 1720, et seq., and 1770, et seq., as well as California Code of Regulations, Title 8, Section 16000, et seq., ("Prevailing Wage Laws"), which require the payment of prevailing wage rates and the performance of other requirements on "public works" and DRAFT
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"maintenance" projects. If the Services are being performed as part of an applicable "public works" or "maintenance" project, as defined by the Prevailing Wage Laws, and if the total compensation is $1,000 or more, Consultant agrees to fully comply with such Prevailing Wage Laws, as applicable to its employees.

3.3.6.2 Registration. [Reserved.]

3.4 Accounting Records.

3.4.1 Maintenance and Inspection. Consultant shall maintain complete and accurate records with respect to all costs and expenses incurred under this Agreement. All such records shall be clearly identifiable. Consultant shall allow a representative of City during normal business hours to examine, audit, and make transcripts or copies of such records and any other documents created pursuant to this Agreement, at the sole expense of the City. Consultant shall allow inspection of all work, data, documents, proceedings, and activities related to the Agreement for a period of four (4) years from the date of final payment under this Agreement.

3.5 General Provisions.

3.5.1 Termination of Agreement.

3.5.1.1 Grounds for Termination. City may, by written notice to Consultant, terminate the whole or any part of this Agreement at any time, for its convenience and without cause, by giving written notice to Consultant of such termination, and specifying the effective date thereof, at least sixty (60) days before the effective date of such termination. Either Party may terminate this Agreement effective immediately upon written notice to the other Party, if the other Party materially breaches any provision of this Agreement and does not substantially cure the breach within thirty (30) days after receiving notice of such breach. A delinquent City account remaining past due for longer than 90 days is a material breach by City and is grounds for termination. Consultant may not terminate this Agreement except for cause. If this Agreement is terminated due to material breach of this Agreement by Consultant, Consultant shall refund City a prorated amount of any amount already paid. Upon termination by City for convenience or due to material breach by City, in addition to any remedy provided in this Agreement or provided in law or equity, Consultant shall be entitled to retain any amounts already paid.

3.5.1.2 Effect of Termination. If this Agreement is terminated as provided herein, City may require Consultant to provide all finished or unfinished Documents other information of any kind prepared by Consultant in connection with the performance of Services under this Agreement. Consultant shall be required to provide such document and other information within thirty (30) days of the request.

3.5.1.3 Additional Services. In the event this Agreement is terminated in whole or in part as provided herein, City may procure, upon such terms and in such manner as it may determine appropriate, services similar to those terminated at its own expense.

3.5.2 Delivery of Notices. All notices permitted or required under this Agreement shall be given to the respective parties at the following address, by email, or at such other address as the respective parties may provide in writing for this purpose:

Consultant: CivicPlus, LLC
302 S 4th St Suite 500
Manhattan KS 66502
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ATTN: Legal Department
[email protected]
City: City of San Clemente
910 Calle Negocio
San Clemente, CA 92673
ATTN: Brian Brower, Administrative Services Director
Such notice shall be deemed made when personally delivered or when mailed, forty-eight (48) hours after deposit in the U.S. Mail, first class postage prepaid and addressed to the party at its applicable address or by email. Actual notice shall be deemed adequate notice on the date actual notice occurred, regardless of the method of service.

3.5.3 Ownership of Materials and Confidentiality.
a. Documents & Data; Licensing of Intellectual Property. Upon full and complete payment of amounts owed for project development under this Agreement, City will own any website graphic designs, Services content, module content, importable/exportable data, and archived information (“City Content”) created by Consultant on behalf of City pursuant to this Agreement. “City Content” also includes, without limitation, any elements of text, graphics, images, photos, audio, video, designs, artworks, logos, trademarks, services marks, and other materials or content that City provides to Consultant for processing, transmission, storage, or inputs into any website, software or module in connection with any Services. City Content excludes any content in the public domain and any content owned or licensed by Consultant, whether in connection with providing Services or otherwise.
b. Upon completion of the project development, City will take over the management and control of the Services and City will assume full responsibility for City Content maintenance and administration. City, not Consultant, shall have sole responsibility for the accuracy, quality, integrity, legality, reliability, appropriateness, and intellectual property ownership or right to use of all City Content. City hereby grants Consultant a worldwide, non-exclusive right and license to reproduce, distribute and display the City Content as necessary to provide the Services. For the terms of this Agreement, Customer hereby grants City a worldwide, non-exclusive right and license to use and distribute any content provided by Consultant to City under this Agreement. c. City represents and warrants that City owns all City Content or that City has permission from the rightful owner to use each of the elements of City Content and that City has all rights necessary for Consultant to use the City Content in connection with providing the Services. d. City agrees that Consultant shall not be responsible or liable for the content of messages created by City or by City’s Users or end-users who access Service. Notwithstanding the foregoing, Consultant retains the right, but not the obligation, to remove any City Content that is libelous, harassing, abusive, fraudulent, defamatory, excessively profane, obscene, abusive, hate related, violent, harmful to minors, that advocates racial or ethnic intolerance, intended to advocate or advance computer hacking or cracking, or other material, products or services that violate or encourage conduct that would violate any laws or third-party rights. e. At any time during the term of this Agreement, City will have the ability to download the City Content and export the data that is processed through the Services (“City Data”). City may request DRAFT
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Consultant to perform the export of City Data and provide the City Data to City in a commonly used format, at any time, for a fee to be quoted at time of request and approved by City. Upon termination of this Agreement, whether or not Customer has retrieved or requested the Customer Data, Consultant reserves the right to permanently and definitively delete the Customer Content and Customer Data held in the Services thirty (30) days following termination. During the thirty (30) day period following termination, regardless of the reason for its termination, Customer will not have access to the Services.
f. Intellectual Property in the software or other original works created by or licensed to Consultant, including all software source code, documents, and materials used in performing the Services (“CivicPlus Property”) will remain the property of CivicPlus. CivicPlus Property specifically excludes City Content. City shall not: license, sublicense, sell, resell, reproduce, transfer, assign, distribute or otherwise commercially exploit or make available to any third party any CivicPlus Property in any way, except as specifically provided in the applicable SOW; adapt, alter, modify, or make derivative works based upon any CivicPlus Property; create internet “links” to the CivicPlus Property software or “frame” or “mirror” any CivicPlus Property administrative access on any other server or wireless or internet-based device that may allow third-party entities, other than City, to use the Services; reverse engineer, decompile, disassemble, or otherwise attempt to obtain the software source code to all or any portion of the Services; make any attempt to gain unauthorized access to the Services and/or any of CivicPlus’ systems or networks; or access any CivicPlus Property in order to: build a competitive product or service, build a product using similar ideas, features, functions or graphics of any CivicPlus Property, or copy any ideas, features, functions or graphics of any CivicPlus Property.
g. The CivicPlus name, the CivicPlus logo, and the product and module names associated with any CivicPlus Property are trademarks of CivicPlus, and no right or license is granted to use them outside of the licenses set forth in this Agreement.
h. Provided City complies with the terms and conditions herein, and license restrictions set forth in this section, CivicPlus hereby grants to City a limited, nontransferable, nonexclusive, license to access and use the CivicPlus Property associated with this Agreement for the term of this Agreement. Consultant represents and warrants that it owns or has the rights to use and license the CivicPlus Property to the City. Consultant represents and warrants that with respect to the CivicPlus Property and all content provided by Consultant in connection with providing the Services that such content does not infringe on the intellectual property rights of any third parties. i. Confidential Information. The City shall refrain from releasing Consultant’s proprietary information ("Proprietary Information") unless the Parties agree the release of the Proprietary Information is required by the California Public Records Act or other applicable state or federal law, or order of a court of competent jurisdiction, in which case the City shall notify Consultant of its intention to release Proprietary Information. Consultant shall have thirty (30) working days after receipt of the Release Notice to give City written notice of Consultant's objection to the City's release of Proprietary Information.

3.5.4 Cooperation; Further Acts. The Parties shall fully cooperate with one another, and shall take any additional acts or sign any additional documents as may be necessary, appropriate or convenient to attain the purposes of this Agreement.

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3.5.5 Attorney's Fees. If either party commences an action against the other party, either legal, administrative or otherwise, arising out of or in connection with this Agreement, the prevailing party in such litigation shall be entitled to have and recover from the losing party reasonable attorney's fees and all other costs of such action.

3.5.6 Indemnification.

3.5.6.1 To the fullest extent permitted by law, Consultant shall defend (with counsel of City’s choosing), indemnify and hold the City, its directors, officials, officers, employees, volunteers and agents free and harmless from any and all third party claims, demands, causes of action, costs, expenses, liability, loss, damage or injury of any kind, in law or equity, to property or persons, including wrongful death, in any manner directly arising out of, the negligence, malicious or illegal acts, errors or omissions, breach of this Agreement or representations and warranties herein, or willful misconduct of Consultant, its officials, officers, employees, subcontractors, consultants or agents in the performance of the Consultant's Services, the Project or this Agreement, including without limitation the payment of all damages, expert witness fees and reasonable attorney’s fees and other related costs and expenses, except to the extent caused by the City or its agents. Consultant’s obligation to indemnify shall be limited to the amount of the required insurance policy. In the event that both parties are determined to be negligent, the principles of comparative fault shall apply.

3.5.7 Entire Agreement. This Agreement, and its Exhibits, contain the entire Agreement of the parties with respect to the subject matter hereof, and supersedes all prior negotiations, understandings or agreements. This Agreement may only be modified by a writing signed by both parties.

3.5.8 Governing Law. This Agreement shall be governed by the laws of the State of California. Venue shall be in Orange County.

3.5.9 Time of Essence. Time is of the essence for each and every provision of this Agreement. Notwithstanding the foregoing, Consultant will not be liable or responsible for any delay in the time or completion of the Services due to the action or inaction of City.

3.5.10 City's Right to Employ Other Consultants. City reserves right to employ other consultants in connection with this Project.

3.5.11 Successors and Assigns. This Agreement shall be binding on the successors and assigns of the parties.

3.5.12 Assignment or Transfer. Consultant shall not assign, hypothecate, or transfer, either directly or by operation of law, this Agreement or any interest herein without the prior written consent of the City. Any attempt to do so shall be null and void, and any assignees, hypothecates or transferees shall acquire no right or interest by reason of such attempted assignment, hypothecation or transfer. Notwithstanding the foregoing, Consultant may assign and transfer all of its rights and obligations under this Agreement by a sale of a majority of its assets or merger upon written notice to City thereof.

3.5.13 Construction; References; Captions. Since the Parties or their agents have participated fully in the preparation of this Agreement, the language of this Agreement shall be construed simply, according to its fair meaning, and not strictly for or against any Party. Any term referencing time, days or period for performance shall be deemed calendar days and not work days. All references to Consultant include all personnel, employees, agents, and subconsultants DRAFT
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of Consultant, except as otherwise specified in this Agreement. All references to City include its elected officials, officers, employees, agents, and volunteers except as otherwise specified in this Agreement. The captions of the various articles and paragraphs are for convenience and ease of reference only, and do not define, limit, augment, or describe the scope, content, or intent of this Agreement.

3.5.14 Amendment; Modification. No supplement, modification, or amendment of this Agreement shall be binding unless executed in writing and signed by both Parties.

3.5.15 Waiver. No waiver of any default shall constitute a waiver of any other default or breach, whether of the same or other covenant or condition. No waiver, benefit, privilege, or service voluntarily given or performed by a Party shall give the other Party any contractual rights by custom, estoppel, or otherwise.

3.5.16 No Third-Party Beneficiaries. There are no intended third party beneficiaries of any right or obligation assumed by the Parties.

3.5.17 Invalidity; Severability. If any portion of this Agreement is declared invalid, illegal, or otherwise unenforceable by a court of competent jurisdiction, the remaining provisions shall continue in full force and effect.

3.5.18 Prohibited Interests. Consultant maintains and warrants that it has not employed nor retained any company or person, other than a bona fide employee working solely for Consultant, to solicit or secure this Agreement. Further, Consultant warrants that it has not paid nor has it agreed to pay any company or person, other than a bona fide employee working solely for Consultant, any fee, commission, percentage, brokerage fee, gift or other consideration contingent upon or resulting from the award or making of this Agreement. For breach or violation of this warranty, City shall have the right to rescind this Agreement without liability. For the term of this Agreement, no member, officer or employee of City, during the term of his or her service with City, shall have any direct interest in this Agreement, or obtain any present or anticipated material benefit arising therefrom.

3.5.19 Equal Opportunity Employment. Consultant represents that it is an equal opportunity employer and it shall not discriminate against any subconsultant, employee or applicant for employment because of race, religion, color, national origin, handicap, ancestry, sex or age. Such non-discrimination shall include, but not be limited to, all activities related to initial employment, upgrading, demotion, transfer, recruitment or recruitment advertising, layoff or termination. Consultant shall also comply with all relevant provisions of City's Minority Business Enterprise program, Affirmative Action Plan or other related programs or guidelines currently in effect or hereinafter enacted.

3.5.20 Labor Certification. By its signature hereunder, Consultant certifies that it is aware of the provisions of Section 3700 of the California Labor Code which require every employer to be insured against liability for Worker's Compensation or to undertake self-insurance in accordance with the provisions of that Code, and agrees to comply with such provisions before commencing the performance of the Services.

3.5.21 Authority to Enter Agreement. Consultant has all requisite power and authority to conduct its business and to execute, deliver, and perform the Agreement. Each Party warrants that the individuals who have signed this Agreement have the legal power, right, and authority to make this Agreement and bind each respective Party.

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3.5.22 Counterparts/Electronic Signatures. This Agreement may be signed in counterparts, each of which shall constitute an original. This Agreement may be signed with the same force and effect as original ink signatures.

3.6 Subcontracting.

3.6.1 Prior Approval Required. Consultant shall not subcontract any portion of the work required solely by this Agreement, except as expressly stated herein, without prior written approval of City. Subcontracts, if any, shall contain a provision making them subject to all provisions stipulated in this Agreement.

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[SIGNATURES ON FOLLOWING PAGE]
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly executed on the respective dates set forth opposite of their signatures.

CITY OF SAN CLEMENTE
By:________________________________
Andy Hall, City Manager
ATTEST: Dated: __________________, 20____
____________________________
CITY CLERK of the City of
San Clemente, California
APPROVED AS TO FORM:
_____________________________
Elizabeth A. Mitchell, City Attorney

APPROVED AS TO AVAILABILITY
OF FUNDING:
_____________________________
Finance Authorization
CivicPlus, LLC, a Kansas Limited
Liability Company (“CONSULTANT”)
By:_____________________________
Brian Rempe, CEO
Dated: __________________, 20____
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EXHIBIT "A"

SCOPE OF SERVICES
Consultant shall perform the following services for the City (collectively, the “Services”):

QTY ITEM PRODUCT TYPE
1 CivicRec Custom Annual Fee Renewable
1 Document Management Renewable
Annual Recurring Services – Year 1 USD $45,000.00
Annual Recurring Services – Year 2 USD $47,250.00
Annual Recurring Services – Year 3 USD $49,612.50

1. This renewal Statement of Work ("SOW") is between the City of San Clemente, CA (“City”) and CivicPlus, LLC, and shall be subject to the terms and conditions of the City of San Clemente Professional Services Agreement between the Parties (“PSA”); and the Master Services Agreement (“MSA”) and applicable Solutions and Products terms found at:
www.civicplus.help/hc/p/legal-stuff (collectively, the “Terms and Conditions”). In the event of any conflict or inconsistency between the terms of the PSA and the MSA, the terms of the PSA shall control and take precedence. By signing this SOW, City expressly agrees to the Terms and Conditions throughout the Term of this SOW. The Terms and Conditions form the entire agreement between City and CivicPlus (collectively, referred to as the “Agreement”). The Parties agree the Agreement shall supersede and replace all prior agreements between the Parties with respect to the services provided by CivicPlus herein (the “Services”).

2. This SOW shall remain in effect for an initial term from December 21, 2024 through December 20, 2027 (the “Initial Term”). In the event that neither party gives 60 days’ notice to terminate prior to the end of the Initial Term, or any subsequent Renewal Term, this SOW shall automatically be renewed for an additional twelve-month renewal term (“Renewal Term”). The Initial Term and all Renewal Terms are collectively referred to as the “Term”.

3. ANNUAL RECURRING SERVICES SHALL BE INVOICED ON THE FIRST DAY OF THE

INITIAL TERM AND THE FIRST DAY OF ANY OF EACH RENEWAL TERM AND BE SUBJECT TO A 5% UPLIFT EACH RENEWAL TERM. CLIENT WILL PAY ALL INVOICES WITHIN 30 DAYS OF THE DATE OF SUCH INVOICE.

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EXHIBIT “B”

INSURANCE REQUIREMENTS

3.2.12 Insurance.

3.2.12.1 Time for Compliance. Consultant shall provide evidence satisfactory to the City that it has secured all insurance required under this section. In addition, Consultant shall not allow any subconsultant to commence work on any subcontract until it has provided evidence satisfactory to the City that the subconsultant has secured all insurance required under this section.

3.2.12.2 Types of Insurance Required. As a condition precedent to the effectiveness of this Agreement for work to be performed hereunder, and without limiting the indemnity provisions of the Agreement, the Consultant, in partial performance of its obligations under such Agreement, shall procure and maintain in full force and effect during the term of the Agreement the following policies of insurance. If the existing policies do not meet the insurance requirements set forth herein, Consultant agrees to amend, supplement or endorse the policies to do so.
(A) Commercial General Liability: Commercial General Liability Insurance which affords coverage at least as broad as Insurance Services Office "occurrence" form CG 0001, or the exact equivalent, with limits of not less than $1,000,000 per occurrence and no less than $2,000,000 in the general aggregate. Defense costs shall be paid in addition to the limits. The policy shall contain no endorsements or provisions (1) limiting coverage for contractual liability; (2) excluding coverage for claims or suits by one insured against another (cross-liability); or (3) containing any other exclusion(s) contrary to the terms or purposes of this Agreement. (B) Automobile Liability Insurance: Automobile Liability Insurance with coverage at least as broad as Insurance Services Office Form CA 0001 covering "Any Auto" (Symbol 1), or the exact equivalent, covering bodily injury and property damage for all activities with limits of not less than $1,000,000 combined limit for each occurrence. (C) Workers' Compensation: Workers' Compensation
Insurance, as required by the State of California and Employer's Liability Insurance with a limit of not less than $1,000,000 per accident for bodily injury and disease. (D) Cyber Liability Insurance with limits not less than $2,000,000 per occurrence or claim, $2,000,000 aggregate. Coverage shall be sufficiently broad to respond to the duties and obligations as is undertaken by Contractor in this agreement and shall include, but not be limited to, claims involving Tech E&O/Professional; Cyber Privacy Network Security Liability; Payment Card Loss; Regulatory Proceedings ; and Electronic Social Printed Media Liability; Business Interruption and Extra Expense; Data Recovery; Cyber-Extortion and Ransomware; Data Breach Response and Crisis Management; Coverage System Failure; Dependent Business Interruption; and Dependent Business Interruption System Failure.

3.2.12.3 Insurance Endorsements. Required insurance policies shall contain the following provisions, or Consultant shall provide endorsements on forms approved by the City to add the following provisions to the insurance policies:
(A) Commercial General Liability:

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(1) Additional Insured: The City, its officials, officers, employees, agents, and volunteers shall be additional insureds with regard to liability and defense of suits or claims arising out of the performance of the Agreement.

Additional Insured Endorsements shall not (1) be
restricted to "ongoing operations"; (2) exclude "contractual liability"; (3) restrict coverage to "sole" liability of Consultant; or (4) contain any other exclusions contrary to the terms or purposes of this Agreement. For all policies of Commercial General Liability insurance, Consultant shall provide endorsements in the form of ISO CG 20 10 10 01 (or endorsements providing the exact same coverage) to effectuate this requirement.
(2) Cancellation: Required insurance policies shall not be canceled or the coverage reduced until a thirty (30) day written notice of cancellation has been served upon the City except ten (10) days shall be allowed for non-payment of premium. (B) Automobile Liability:
(1) Cancellation: Required insurance policies shall not be canceled or the coverage reduced until a thirty (30) day written notice of cancellation has been served upon the City except ten (10) days shall be allowed for non-payment of premium. (C) Contractual Liability Exclusion Deleted: This insurance shall include contractual liability applicable to this Agreement. The policy must “pay on behalf of” the insured and include a provision establishing the insurer’s duty to defend.

3.2.12.4 Workers' Compensation:
(A) Cancellation: Required insurance policies shall not be canceled or the coverage reduced until a thirty (30) day written notice of cancellation has been served upon the City except ten (10) days shall be allowed for non-payment of premium.

3.2.12.5 Primary and Non-Contributing Insurance. All policies of Commercial General Liability and Automobile Liability insurance shall be primary and any other insurance, deductible, or self-insurance maintained by the City, its officials, officers, employees, agents, or volunteers shall not contribute with this primary insurance. Policies shall contain or be endorsed to contain such provisions.

3.2.12.6 Waiver of Subrogation. All policies of Commercial General Liability and Automobile Liability insurance shall specifically allow Consultant or others providing insurance evidence in compliance with these specifications to waive their right of recovery prior to a loss. Consultant hereby waives its own right of recovery against the City, its officials, officers, employees, agents, and volunteers, and shall require similar written express waivers and insurance clauses from each of its subconsultants.

3.2.12.7 Deductibles and Self-Insured Retentions. Any deductible or selfinsured retention greater than $5,000 must be approved in writing by the City and shall protect the City, its officials, officers, employees, agents, and volunteers in the same manner and to the same extent as they would have been protected had the policy or policies not contained a deductible or self-insured retention.

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3.2.12.8 Evidence of Insurance. The Consultant, concurrently with the execution of the Agreement, and as a condition precedent to the effectiveness thereof, shall deliver either certified copies of the required policies, or original certificates on forms approved by the City, together with all endorsements affecting each policy. Required insurance policies shall not be in compliance if they include any limiting provision or endorsement that has not been submitted to the City for approval. The certificates and endorsements for each insurance policy shall be signed by a person authorized by that insurer to bind coverage on its behalf. At least fifteen (15 days) prior to the expiration of any such policy, evidence of insurance showing that such insurance coverage has been renewed or extended shall be filed with the City. If such coverage is cancelled or reduced and not replaced immediately so as to avoid a lapse in the required coverage, Consultant shall, within ten (10) days after receipt of written notice of such cancellation or reduction of coverage, file with the City evidence of insurance showing that the required insurance has been reinstated or has been provided through another insurance company or companies.

3.2.12.9 Failure to Maintain Coverage. In the event any policy of insurance required under this Agreement does not comply with these specifications or is canceled and not replaced immediately so as to avoid a lapse in the required coverage, City may cancel this Agreement, for its convenience or for cause, effective upon notice.

3.2.12.10 Acceptability of Insurers. Each such policy shall be from a company or companies with a current A.M. Best's rating of no less than A- VII and authorized to transact business of insurance in the State of California, or otherwise allowed to place insurance through surplus line brokers under applicable provisions of the California Insurance Code or any federal law.

3.2.12.11 Enforcement of Agreement Provisions (non estoppel).

Consultant acknowledges and agrees that actual or alleged failure on the part of the City to inform Consultant of non-compliance with any requirement imposes no additional obligation on the City nor does it waive any rights hereunder.

3.2.12.12 Requirements Not Limiting. Requirement of specific coverage or minimum limits contained in this Appendix are not intended as a limitation on coverage, limits, or other requirement, or a waiver of any coverage normally provided by any insurance.

3.2.12.13 Insurance for Subconsultants. Consultant shall include all subconsultants engaged in any work for Consultant relating to this Agreement as additional insureds under the Consultant's policies, or the Consultant shall be responsible for causing subconsultants to purchase the appropriate insurance in compliance with the terms of these Insurance Requirements, including adding the City, its officials, officers, employees, agents, and volunteers as additional insureds to the subconsultant's policies. All policies of Commercial General Liability insurance provided by Consultant’s subconsultants performing work relating to this Agreement shall be endorsed to name the City, its officials, officers, employees, agents and volunteers as additional insureds using endorsement form ISO CG 20 38 04 13 or an endorsement providing equivalent coverage. Consultant shall not allow any subconsultant to commence work on any subcontract relating to this Agreement until it has received satisfactory evidence of subconsultant’s compliance with all insurance requirements under this Agreement, to the extent applicable. The Consultant shall provide satisfactory evidence of compliance with this section upon request of the City.

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WORKER’S COMPENSATION INSURANCE CERTIFICATION

WORKERS' COMPENSATION DECLARATION

I hereby affirm under penalty of perjury one of the following declarations:

(ONE OF THE BOXES BELOW MUST BE CHECKED)
I have and will maintain a certificate of consent from the California Labor Commission to self-insure for workers' compensation, as provided for by Section 3700 of the Labor Code, for the performance of the work to be performed under this contract.

I have and will maintain workers' compensation insurance, as required by Section 3700 of the Labor Code, for the performance of the work to be performed under this contract. My workers' compensation insurance carrier and policy number are:

Carrier____________________________________________________ Policy Number______________________________________________

I certify that, in the performance of the work under this Agreement, I shall not employ any person in any manner so as to become subject to the workers' compensation laws of California, and I hereby agree to indemnify, defend, and hold harmless the City of San Clemente and all of its officials, employees, and agents from and against any and all claims, liabilities, and losses relating to personal injury or death, economic losses, and property damage arising out of my failure to provide such worker’s compensation insurance. I further agree that, if I should become subject to the workers' compensation provisions of Section 3700 of the Labor Code, I shall forthwith comply with those provisions.

WARNING: FAILURE TO SECURE WORKERS’ COMPENSATION

COVERAGE IS UNLAWFUL, AND SHALL SUBJECT AN EMPLOYER TO

CRIMINAL PENALTIES AND CIVIL FINES UP TO ONE HUNDRED THOUSAND DOLLARS ($100,000), IN ADDITION TO THE COST OF COMPENSATION, DAMAGES AS PROVIDED FOR IN SECTION 3706 OF THE LABOR CODE, INTEREST, AND ATTORNEY’S FEES.

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Dated: ________________________, 20____
________________________________
(“CONSULTANT”)
By: ________________________________
________________________________
Title
________________________________
Address
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civicplus.com | 302 South 4th Street, Suite 500 | Manhattan, KS 66502 | 888-228-2233 CivicPlus Master Services Agreement
This Master Services Agreement (this “Agreement”) governs all Statements of Work (“SOW”) entered into by and between CivicPlus, LLC (“CivicPlus”) and the customer entity identified on the SOW (“Customer”). This Agreement governs the use and provision of any Services purchased by Customer, as described in any signed SOW, and the effective date of this Agreement shall commence on the date of signature of the SOW (“Effective Date”). If a SOW has not been executed, then the Effective Date shall be determined as the start date of implementation of any software solution by CivicPlus for Customer. CivicPlus and Customer referred to herein individually as “Party” and jointly as “Parties”.

Recitals
I. WHEREAS, CivicPlus is engaged in the business of developing and providing access to proprietary community engagement and government content, workflow, and general management software solutions, platforms and associated services (the “Services”); and
II. WHEREAS, Customer wishes to engage CivicPlus for the procurement of the Services and/or receive a license subscription for the ongoing use of the Services, as set forth in the SOW; NOW, THEREFORE, Customer and CivicPlus agree as follows:

Agreement
Term & Termination

1. This Agreement shall commence on the Effective Date and shall remain in full force and effect for as long as any SOW is in effect between CivicPlus and Customer, or Services are being provided by CivicPlus to Customer, unless terminated in accordance with this §1 or as otherwise provided in this Agreement (the “Term”). Either Party may terminate this Agreement or any SOW as set forth in such SOW, or at its discretion, effective immediately upon written notice to the other Party, if the other Party materially breaches any provision of this Agreement and does not substantially cure the breach within thirty (30) days after receiving notice of such breach. A delinquent Customer account remaining past due for longer than 90 days is a material breach by Customer and is grounds for CivicPlus termination. CivicPlus reserves the right to withhold, remove and/or discard Customer Data without notice for any breach, including, without limitation, Customer’s non-payment. Upon termination for Customer’s breach, Customer’s right to access or use Customer Data immediately ceases, and CivicPlus shall have no obligation to maintain or forward any Customer Data.

2. Upon termination of this Agreement or any SOW for any reason, (a) the licenses granted for such relevant SOW by §11 below will terminate and Customer shall cease all use of the CivicPlus Property and Services associated with the terminated SOW and (b) any amounts owed to CivicPlus for work performed prior to termination shall immediately become due in full and payable. If Customer has paid in advance for the Services, and this Agreement terminates due to material breach of this Agreement by CivicPlus, CivicPlus shall refund Customer a prorated amount of any amount already paid. Upon termination by Customer for convenience or due to material breach by Customer, in addition to any remedy 587
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civicplus.com | 302 South 4th Street, Suite 500 | Manhattan, KS 66502 | 888-228-2233 provided in this Agreement or provided in law or equity, CivicPlus shall be entitled to retain any amounts already paid.

Sections 7, 8, 10, 14, 15, 18, 32 -34, 40, and 42 will survive any expiration or termination of this Agreement.

3. At any time during the Term, CivicPlus may, immediately upon notice to Customer, suspend Customer and any of its Users access to any Service due to a threat to the technical security or technical integrity of the Services.

Invoicing & Payment Terms

4. Customer will pay the amounts owed to CivicPlus for the development and implementation of the Customer’s Services, as defined in the SOW (“Project Development”), subscription and licensing, and annual hosting, support and maintenance services (“Annual Recurring Services”) in accordance with the payment schedule set forth on the applicable SOW. Invoices shall be sent electronically to the individual/entity designated in the SOW’s contact sheet that is required to be filled out and submitted by Customer (the “Contact Sheet”). Customer shall provide accurate, current and complete information of Customer’s legal business name, address, email address, and phone number in the Contact Sheet upon submission of a signed SOW. Customer will maintain and promptly update the Contact Sheet information if it should change. Upon Customer’s request, CivicPlus will mail hard-copy invoices for a $5.00 convenience fee to be added to the mailed invoice.

5. Each SOW will state the amount of days from date of invoice payment is due. Unless otherwise limited by law, a finance charge of 1.5 percent (%) per month or the maximum rate permitted by applicable law, whichever is less, will be added to past due accounts from due date until paid. Payments received will be applied first to finance charges, then to the oldest outstanding invoice(s). If the Customer's account exceeds 60 days past due, support will be discontinued until the Customer's account is made current. If the Customer's account exceeds 90 days past due, CivicPlus may suspend in progress Project Development and Annual Recurring Services will be discontinued, and the Customer will no longer have access to the Services until the Customer's account is made current. Customer will be given 15 days’ notice prior to discontinuation of Services for non-payment.

6. During the performance of Project Development, if Customer requests a change that requires repeated efforts to previously approved work product and such change causes CivicPlus to incur additional expenses (i.e. airline change fees, resource hours, consultant fees, Customer does not show up for scheduled meetings or trainings), Customer agrees to reimburse CivicPlus for such additional expenses. CivicPlus shall notify Customer prior to incurring such expenses and shall only incur those expenses which are approved by Customer.

Ownership & Content Responsibility

7. Upon full and complete payment of amounts owed for Project Development under the applicable SOW, Customer will own any website graphic designs, Services content, module content, importable/exportable data, and archived information (“Customer Content”) created by CivicPlus on behalf of Customer pursuant to this Agreement. “Customer Content” also includes, without limitation, any elements of text, graphics, images, photos, audio, video, designs, artworks, logos, trademarks, services marks, and other materials or content which Customer provides to CivicPlus for processing, transmission, storage, or inputs into any website, software or module in connection with any Services. Customer Content excludes any content in the public domain and any content owned or licensed by CivicPlus, whether in connection with providing Services or otherwise.

8. Upon completion of the Project Development, Customer will take over the management and control of the Services and Customer will assume full responsibility for Customer Content maintenance and administration. Customer, not CivicPlus, shall have sole responsibility for the accuracy, quality, integrity, legality, reliability, appropriateness, and 588
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civicplus.com | 302 South 4th Street, Suite 500 | Manhattan, KS 66502 | 888-228-2233 intellectual property ownership or right to use of all Customer Content. Customer hereby grants CivicPlus a worldwide, non-exclusive right and license to reproduce, distribute and display the Customer Content as necessary to provide the Services. Customer represents and warrants that Customer owns all Customer Content or that Customer has permission from the rightful owner to use each of the elements of Customer Content and that Customer has all rights necessary for CivicPlus to use the Customer Content in connection with providing the Services. Customer agrees that CivicPlus shall not be responsible or liable for the content of messages created by Customer or by Customer’s Users or end-users who access Service. Notwithstanding the foregoing, CivicPlus retains the right, but not the obligation, to remove any Customer Content that is libelous, harassing, abusive, fraudulent, defamatory, excessively profane, obscene, abusive, hate related, violent, harmful to minors, that advocates racial or ethnic intolerance, intended to advocate or advance computer hacking or cracking, or other material, products or services that violate or encourage conduct that would violate any laws or thirdparty rights.

9. At any time during the term of the applicable SOW, Customer will have the ability to download the Customer Content and export the data that is processed through the Services (“Customer Data”). Customer may request CivicPlus to perform the export of Customer Data and provide the Customer Data to Customer in a commonly used format, at any time, for a fee to be quoted at time of request and approved by Customer. Upon termination of the applicable SOW for any reason, whether or not Customer has retrieved or requested the Customer Data, CivicPlus reserves the right to permanently and definitively delete the Customer Content and Customer Data held in the Services thirty (30) days following termination of the applicable SOW. During the thirty (30) day period following termination of the SOW, regardless of the reason for its termination, Customer will not have access to the Services.

10. Intellectual Property in the software or other original works created by or licensed to CivicPlus, including all software source code, documents, and materials used in performing the Services (“CivicPlus Property”) will remain the property of CivicPlus. CivicPlus Property specifically excludes Customer Content. Customer shall not (i) license, sublicense, sell, resell, reproduce, transfer, assign, distribute or otherwise commercially exploit or make available to any third party any CivicPlus Property in any way, except as specifically provided in the applicable SOW; (ii) adapt, alter, modify or make derivative works based upon any CivicPlus Property; (iii) create internet “links” to the CivicPlus Property software or “frame” or “mirror” any CivicPlus Property administrative access on any other server or wireless or internet-based device that may allow third party entities, other than Customer, to use the Services; (iv) reverse engineer, decompile, disassemble or otherwise attempt to obtain the software source code to all or any portion of the Services; (v) make any attempt to gain unauthorized access to the Services and/or any of CivicPlus’ systems or networks; or (vi) access any CivicPlus Property in order to: (a) build a competitive product or service, (b) build a product using similar ideas, features, functions or graphics of any CivicPlus Property, or (c) copy any ideas, features, functions or graphics of any CivicPlus Property. The CivicPlus name, the CivicPlus logo, and the product and module names associated with any CivicPlus Property are trademarks of CivicPlus, and no right or license is granted to use them outside of the licenses set forth in this Agreement.

11. Provided Customer complies with the terms and conditions herein, the relevant SOW, and license restrictions set forth in §10, CivicPlus hereby grants Customer a limited, nontransferable, nonexclusive, non-assignable license to access and use the CivicPlus Property associated with any valid and effective SOW, for the term of the respective SOW. The license set forth herein, shall only apply to the extent that Customer is using the Services for legitimate business use as intended by the purpose of the Services and not for the purpose of comparing the Services to a competitor or similar product of CivicPlus. Customer hereby warrants and affirms its purpose in accessing or otherwise using the Services is for their intended purpose only and understands and agrees that any other use shall be considered fraud.

12. All CivicPlus helpful information and user’s guides for the Services (“Documentation”) are maintained and updated electronically by CivicPlus and can be accessed through the CivicPlus “Help Center”. CivicPlus does not provide paper copies of its Documentation. Customer and its Users are granted a limited license to access Documentation as needed.

Customer shall not copy, download, distribute, or make derivatives of the Documentation.

13. Customer acknowledges that CivicPlus may continually develop, alter, deliver, and provide to the Customer ongoing 589
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civicplus.com | 302 South 4th Street, Suite 500 | Manhattan, KS 66502 | 888-228-2233 innovation to the Services, in the form of new features and functionalities. CivicPlus reserves the right to modify the Services from time to time. Any modifications or improvements to the Services listed on the SOW will be provided to the Customer at no additional charge. In the event that CivicPlus creates new products or significant enhancements to the Services (“New Services”), and Customer desires these New Services, then Customer will have to pay CivicPlus the appropriate fee for the access to and use of the New Services. CivicPlus shall use its reasonable best efforts to provide workarounds in the event any modification to the Services causes Customer to lose substantial functionality of the Services.

14. CivicPlus in its sole discretion, may utilize all comments and suggestions, whether written or oral, furnished by Customer to CivicPlus in connection with its access to and use of the Services (all reports, comments and suggestions provided by Customer hereunder constitute, collectively, the “Feedback”). Customer hereby grants to CivicPlus a worldwide, non-exclusive, irrevocable, perpetual, royalty-free right and license to incorporate the Feedback in the CivicPlus products and services.

Indemnification

15. CivicPlus will defend at its expense or settle any third-party claim against Customer alleging that the Services provided under this Agreement infringe intellectual property rights. CivicPlus will pay infringement claim defense costs, CivicPlus–negotiated settlement amounts, and damages finally awarded by a court. CivicPlus has no obligation for any claim of infringement arising from Customer's use of the Services for purposes not contemplated by this Agreement.

CivicPlus’s indemnification obligations under this Section 15 are conditioned upon the Customer (i) promptly notifying the CivicPlus of any claim in writing; (ii) cooperating with CivicPlus in the defense of the claim; and (iii) granting CivicPlus sole control of the defense or settlement of the claim. The indemnification obligations of CivicPlus herein shall not apply to any claims of intellectual property infringement related to Customer Content.

Responsibilities of the Parties

16. CivicPlus will not be liable for any act, omission of act, negligence or defect in the quality of service of any underlying carrier, licensor or other third-party service provider whose facilities or services are used in furnishing any portion of the Service received by the Customer.

17. CivicPlus will not be liable for any failure of performance that is caused by or the result of any act or omission by Customer or any entity employed/contracted on the Customer’s behalf. During Project Development, Customer will be responsive and cooperative with CivicPlus to ensure the Project Development is completed in a timely manner.

18. Customer agrees that it is solely responsible for the end-user’s personal data that Customer decides to solicit, collect, store, or otherwise use in connection with any Service provided by CivicPlus. Customer understands and agrees that CivicPlus provides certain solutions with increased security measures for the solicitation and storage of any sensitive data, and it is Customer’s responsibility to determine whether the data it solicits and collects should be stored in such solutions.

Customer understands and agrees that CivicPlus does not have knowledge or control over what type of data Customer solicits therefore CivicPlus has no responsibility for the use or storage of end-users’ personal data in connection with the Services or the consequences of the solicitation, collection, storage, or other use by Customer or by any third party of any personal data. Customer has the sole control and responsibility over the determination of which data and information shall be included in the content that is to be transmitted and stored by CivicPlus. Customer shall not provide to CivicPlus or allow to be provided to CivicPlus any content that (a) infringes or violates any 3rd party’s intellectual property rights, rights of publicity or rights of privacy, (b) contains any defamatory material, or (c) violates any federal, state, local, or foreign laws, regulations, or statutes.
590
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civicplus.com | 302 South 4th Street, Suite 500 | Manhattan, KS 66502 | 888-228-2233

19. Customer is responsible for all activity that occurs under Customer's accounts by or on behalf of Customer. Customer agrees to (a) be solely responsible for all designated and authorized individuals chosen by Customer (“User”) activity, which must be in accordance with this Agreement and the CivicPlus Terms of Use; (b) be solely responsible for Customer Data; (c) obtain and maintain during the term all necessary consents, agreements and approvals from end-users, individuals or any other third parties for all actual or intended uses of information, data or other content Customer will use in connection with the Services; (d) use commercially reasonable efforts to prevent unauthorized access to, or use of, any User’s log-in information and the Services, and notify CivicPlus promptly of any known unauthorized access or use of the foregoing; (e) use commercially reasonable efforts to prevent unauthorized access to or use of the Services and CivicPlus Property and shall promptly notify CivicPlus of any unauthorized access or use of the Services and/or CivicPlus Property and any loss or theft or unauthorized use of any n User's password or username and/or personal information; and (f) use the Services only in accordance with applicable laws and regulations.

20. The Parties shall comply with all applicable local, state, and federal laws, treaties, regulations, and conventions in connection with its use and provision of any of the Services or CivicPlus Property.

21. CivicPlus shall not be responsible for any act or omission of any third-party vendor or service provider that Customer has selected to integrate any of its Services with.

22. Customer understands that CivicPlus must fastidiously allocate resources across all of its customers and specifically reserves necessary resources for Customer’s Project Development. If any professional services, such as consulting or training, purchased by Customer are not used during the Project Development phase solely due to the inaction or unresponsiveness of Customer, then these services shall expire 30 days after completion of Project Development. The Customer may re-schedule any unused professional services during this 30-day period as mutually agreed upon by the Parties. Any professional services that have not been used or rescheduled shall be marked as complete and closed upon the expiration of the 30-day period.

Data Security

23. CivicPlus shall, at all times, comply with the terms and conditions of its Privacy Policy. CivicPlus will maintain commercially reasonable administrative, physical, and technical safeguards designed to protect the security and confidentiality of Customer Data. CivicPlus will not modify Customer Data or disclose Customer Data, except (a) in order to provide the Services; (b) to prevent or address service or technical problems in connection with support matters; (c) as specifically directed or expressly permitted in writing by Customer, (d) in compliance with our Privacy Policy; or (f) if compelled by law. Notwithstanding the foregoing, CivicPlus reserves the right to delete, suspend, or block known malicious accounts without Customer authorization. Customer understands that CivicPlus has no obligation to provide the Services or maintain the Customer Data, information or other material if Customer’s accounts are past due and unpaid as set forth in this Agreement.

24. Customer acknowledges and agrees that CivicPlus utilizes third-party service providers to host and provide the Services and store Customer Data and the protection of such data will be in accordance with such third party’s safeguards for the protection and the security and confidentiality of Customer’s Data. Notwithstanding anything to the contrary, CivicPlus shall have the right to collect and analyze data and other information relating to the provision, use and performance of various aspects of the Services and related systems and technologies (including, without limitation, information concerning Customer Data and data derived therefrom), and CivicPlus will be free (during and after the term hereof) to use such information and data to improve and enhance the Services and for other development, diagnostic and corrective purposes in connection with the Services and other CivicPlus offerings.

25. CivicPlus may offer Customer the ability to use third-party applications in combination with the Services. Any such third-party application will be subject to acceptance by Customer. In connection with any such third-party application 591
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civicplus.com | 302 South 4th Street, Suite 500 | Manhattan, KS 66502 | 888-228-2233 agreed to by Customer, Customer acknowledges and agrees that CivicPlus may allow the third-party providers access to Customer Data asrequired for the interoperation of such third-party application with the Services. The use of a third-party application with the Services may also require Customer to agree to a separate agreement or terms and conditions with the provider of the third-party application, which will govern Customer's use of such third-party application.

26. In the event of a security breach due to the sole negligence, malicious actions, omissions, or misconduct of CivicPlus, CivicPlus, as the data custodian, will comply will all remediation efforts as required by applicable federal and state law.

CivicPlus Support

27. CivicPlus will use commercially reasonable efforts to perform the Services in a manner consistent with applicable industry standards, including maintaining Services availability 24 hours a day, 7 days a week with 99.9% uptime. Customer will have 24/7 access to the online CivicPlus Help Center (civicplus.help) to review use articles, software best practices, receive maintenance release notes, as well as submit and monitor omni-channel support tickets and access solution specific support contact methods (https://www.civicplus.help/hc/en-us/requests/new).

28. CivicPlus provides live support engineers based in the domestic United States to respond to basic questions concerning use and configuration, to diagnose software code-related errors, and proactively identify potential systems issues. CivicPlus support engineers serve a preliminary function in the agile development process and escalate defects to software developers or architects for remediation. For security purposes, CivicPlus support engineers are not permitted to modify user accounts, and permissions nor distribute access outside of accounts established by means of a support interaction for testing. Customer delegated Users may receive tutorials and guidance on account modifications but will perform the action themselves.

29. CivicPlus support hours span between the hours of 7 am to 7 pm CST, but may vary by product. Customer may access the CivicPlus Help Center (civicplus.help) to obtain each product’s support hours. After hours support is available by toll- free phone call only. Non-emergency support requested outside of support hours will be subject to additional fees, such fees will be quoted to Customer at the time of the request and will be subject to Customer acceptance and invoiced the next business day following the non-emergency support. CivicPlus shall have the sole discretion to determine in good faith whether support requests qualify as an emergency, exceed reasonable use or are outside the scope of services outlined in any SOW.

30. If a reported problem cannot be solved during the firstsupport interaction, Customer will be provided a ticket number that will be used as communication method throughout ticket escalation until a solution is provided. Support service does not include support for errors caused by third party products or applications for which CivicPlus is not responsible.

Marketing

31. Customer hereby authorizes CivicPlus to include CivicPlus’s name and logo inconspicuously within the Customer’s instance of the Services. Customer may publicly refer to itself as a customer of the CivicPlus Services, including on Customer's website and in sales presentations. Notwithstanding the foregoing, each Party hereby grants the other a limited, worldwide, license to use the other’s logo in conformance with such Party’s trademark usage guidelines and solely for the purposes of providing the Services. In no event will either Party issue a press release publicly announcing this relationship without the approval of the other Party, such approval not to be unreasonably withheld. 592
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civicplus.com | 302 South 4th Street, Suite 500 | Manhattan, KS 66502 | 888-228-2233 Limitation of Liability

32. CivicPlus’ liability arising out of or related to this Agreement, or any associated SOW, will not exceed the amounts paid by Customer for the Annual Recurring Services in the year prior to such claim of liability.

33. In no event will CivicPlus be liable to Customer for any consequential, indirect, special, incidental, or punitive damages arising out of or related to this Agreement.

34. The liabilities limited by Section 32 and 33 apply: (a) to liability for negligence; (b) regardless of the form of action, whether in contract, tort, strict product liability, or otherwise; (c) even if Customer is advised in advance of the possibility of the damages in question and even if such damages were foreseeable; and (d) even if Customer’s remedies fail of their essential purposes. If applicable law limits the application of the provisions of this Limitation of Liability section, CivicPlus’ liability will be limited to the maximum extent permissible.

Warranties and Disclaimer

35. Each person signing the SOW, or otherwise agreeing to the terms of this Agreement, represents and warrants that he or she is duly authorized and has legal capacity to execute and bind the respective Party to the terms and conditions of the SOW and this Agreement. Each Party represents and warrants to the other that the execution and delivery of the SOW and the performance of such Party’s obligations thereunder have been duly authorized and that this Agreement is a valid and legal agreement binding on such Party and enforceable in accordance with its terms. Customer represents and warrants that Customer has not provided any false information to gain access to the Service and that Customer’s billing information provided on the Contact Sheet is correct; and it has all necessary rights in the Customer Content to permit Customer’s use of the Service and to grant the licenses contained in this Agreement without infringing the intellectual property or other rights of any third parties, violating any applicable laws, or violating the terms of any license or agreement to which it is bound.

36. CivicPlus warrants that the Services will perform substantially in accordance with documentation and marketing proposals, and free of any material defect. CivicPlus warrants to the Customer that, upon notice given to CivicPlus of any defect in design or fault or improper workmanship, CivicPlus will remedy any such defect. CivicPlus makes no warranty regarding, and will have no responsibility for, any claim arising out of: (i) a modification of the Services made by anyone other than CivicPlus, even in a situation where CivicPlus approves of such modification in writing; or (ii) use of the Services in combination with a third-party service, web hosting service, or server not authorized by CivicPlus.

37. The Services may be temporarily unavailable for scheduled maintenance or for unscheduled emergency maintenance, either by CivicPlus or by third-party providers, or because of other causes beyond CivicPlus's reasonable control, but CivicPlus shall use reasonable efforts to provide advance notice in writing or by e-mail of any scheduled service disruption. HOWEVER, SERVICE PROVIDER DOES NOT WARRANT THAT THE SERVICES WILL BE UNINTERRUPTED OR ERROR FREE; NOR DOES IT MAKE ANY WARRANTY AS TO THE RESULTS THAT MAY BE OBTAINED FROM USE OF THE SERVICES.EXCEPT FOR THE EXPRESS WARRANTIES IN THIS AGREEMENT, THE SERVICES ARE PROVIDED “AS IS AND CIVICPLUS HEREBY DISCLAIMS ALL

WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, INCLUDING ANY IMPLIED

WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR ARISING FROM A PRIOR COURSE OF DEALING.

38. EACH PROVISION OF THIS AGREEMENT THAT PROVIDES FOR A LIMITATION OF LIABILITY,

DISCLAIMER OF WARRANTIES, OR EXCLUSION OF DAMAGES IS TO ALLOCATE THE RISKS OF THIS AGREEMENT BETWEEN THE PARTIES. THIS ALLOCATION IS REFLECTED IN THE PRICING OFFERED BY

CIVICPLUS TO CUSTOMER AND IS AN ESSENTIAL ELEMENT OF THE BASIS OF THE BARGAIN BETWEEN 593
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civicplus.com | 302 South 4th Street, Suite 500 | Manhattan, KS 66502 | 888-228-2233 THE PARTIES. EACH OF THESE PROVISIONS IS SEVERABLE AND INDEPENDENT OF ALL OTHER PROVISIONS OF THIS AGREEMENT.

Force Majeure

39. No party shall have any liability to the other hereunder by reason of any delay or failure to perform any obligation or covenant if the delay or failure to perform is occasioned by force majeure, meaning any act of God, storm, pandemic, fire, casualty, unanticipated work stoppage, strike, lockout, labor dispute, civil disturbance, riot, war, national emergency, act of public enemy, internet service provider failure or delay, third party application failure, denial of service attack, or other cause of similar or dissimilar nature beyond its control.

Taxes

40. The amounts owed for the Services exclude, and Customer will be responsible for, all sales, use, excise, withholding and any other similar taxes, duties and charges of any kind imposed by any federal, state or local governmental entity in connection with the Services (excluding taxes based solely on CivicPlus’s income). If the Customer is tax-exempt, the Customer must provide CivicPlus proof of their tax-exempt status, within fifteen (15) days of contract signing, and the fees owed by Customer under this Agreement will not be taxed. If such exemption certificate is challenged or held invalid by a taxing authority then Customer agrees to pay for all resulting fines, penalties and expenses.

Other Documents

41. This Agreement, including all exhibits, amendments, and addenda hereto and all SOWs, constitutes the entire agreement between the Parties and supersedes all prior and contemporaneous agreements, proposals or representations, written or oral, concerning its subject matter. No modification, amendment, or waiver of any provision of this Agreement or any SOW will be effective unless in writing and signed by each Party. However, to the extent of any conflict or inconsistency between the provision in the body of this Agreement and any exhibit, amendment, or addenda hereto or any SOW, the terms of such exhibit, amendment, addenda or SOW will prevail. Notwithstanding any language to the contrary therein, no terms or conditions stated in a Customer purchase order or other order documentation (excluding SOWs) will be incorporated into or form any part of this Agreement, all such terms or conditions will be null and void, unless such term is to refer and agree to this Agreement.

Interlocal Purchasing Consent/ Cooperative Purchasing

42. With the prior approval of CivicPlus, which may be withheld for any or no reason within CivicPlus’s sole discretion, this Agreement and any SOW may be extended to any public entity in Customer’s home-state to purchase at the SOW prices and specifications in accordance with the terms stated herein.

43. To the extent permitted by law, the terms of this Agreement and set forth in one or more SOW(s) may be extended for use by other local government entities upon execution of a separate agreement, SOW, or other duly signed writing by and between CivicPlus and such entity, setting forth all of the terms and conditions for such use, including applicable fees and billing terms.
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Attachment 3
civicplus.com | 302 South 4th Street, Suite 500 | Manhattan, KS 66502 | 888-228-2233 Miscellaneous Provisions

44. The invalidity or unenforceability, in whole or in part, of any provision of this Agreement shall not void, affect the validity or enforceability of any other provision of this Agreement.

45. The Parties negotiated this Agreement with the opportunity to receive the aid of counsel and, accordingly, intend this Agreement to be construed fairly, according to its terms, in plain English, without constructive presumptions against the drafting Party. The headings of Sections of this Agreement are for convenience and are not to be used in interpreting this Agreement. As used in this Agreement, the word “including” means “including but not limited to.”

46. The Parties will use reasonable, good faith efforts to resolve any dispute between them in good faith prior to initiating legal action.

47. This Agreement and any SOW, to the extent signed and delivered by means of a facsimile machine or electronic mail, shall be treated in all manner and respects as an original agreement or instrument and shall be considered to have the same binding legal effect as if it were the original signed version thereof delivered in person. The Parties agree that an electronic signature is the legal equivalent of its manual signature on this Agreement and any SOW. The Parties agree that no certification authority or other third party verification is necessary to validate its electronic signature and that the lack of such certification of third party verification will not in any way affect the enforceability of the Parties’ electronic signature or any resulting agreement between CivicPlus and Customer.

48. Due to the rapidly changing nature of software as a service and digital communications, CivicPlus may unilaterally update this Agreement from time to time. In the event CivicPlus believes such change is a material alteration of the terms herein, CivicPlus will provide Customer with written notice describing such change via email or through its website.

Customer’s continued use of the Services following such updates constitutes Customer’s acceptance of the same. In the event Customer rejects the update to the terms herein, Customer must notify CivicPlus of its objection within ten (10) days receipt of notice of such update.
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910 Calle Negocio
2nd Floor
San Clemente, California
www.san-clemente.org

AGENDA REPORT

CITY OF SAN CLEMENTE

CITY COUNCIL MEETING
CITY OF SAN CLEMENTE 1
Meeting Date: December 10, 2024 Agenda Item: 11L.

Submitted By: Beaches, Parks and Recreation
Prepared By: Samantha Wylie, Beaches, Parks & Recreation Director Subject:
..titl e

CONSIDERATION OF A RESOLUTION AWARDING A CONTRACT TO AMERICAN RAMP COMPANY, INC. FOR CONSTRUCTION OF A PUMP TRACK AT RICHARD T. STEED MEMORIAL PARK AND MAKING FINDINGS UNDER THE CALIFORNIA ENVIRONMENTAL QUALITY ACT ..body Fiscal Impact:

The proposed contract award is for a not-to-exceed amount of $605,500. Utilizing the existing contract pricing ensures cost predictability and value for the City. This amount includes all construction, materials, and project management costs, with no additional costs anticipated. This project is funded through the Parks Acquisition Fund and donations from Shimano, Inc., Orange County Mountain Bike Association, and Friends of San Clemente, Beaches, Parks & Recreation Foundation.

Summary:

The award of this contract to American Ramp Company for the design and construction of the pump track at Richard T. Steed Memorial Park will provide a valuable recreational facility for the San Clemente community. Following an assessment of available local contractors, staff determined that no qualified contractors are currently capable of performing the required asphalt and ramp work within the City.

American Ramp Company (“ARC”), a nationally recognized leader in ramp construction and related services, has existing open contracts with two California cities that were competitively bid in compliance with California Public Works Contract Law. These contracts allow for piggybacking by other public agencies, providing an opportunity for the City of San Clemente to access prenegotiated terms, pricing, and expertise without conducting a duplicative bidding process.

Awarding the contract to American Ramp Company through piggybacking ensures a costeffective, legally compliant, and timely solution for completing the project. This approach addresses the City’s immediate needs while maintaining compliance with state and local policies.

In awarding this contract, the City Council is being asked to authorize an exemption to the formal solicitation process and allow for the award to American Ramp Company under Policy 201-2-1 Section XI A.1.4 and 1.4.3(b).

Background:

Pursuant to City Council action at its November 19, 2024 meeting, the City has committed to enhancing recreational opportunities for residents and visitors with the development of a pump track at Richard T. Steed Memorial Park as a key part of this effort. 596
Meeting Date: December 10, 2024 Agenda Item: 11L.

CITY OF SAN CLEMENTE 2
American Ramp Company specializes in projects like ours, providing a level of expertise that would be challenging to replicate. Their proven track record under these existing contracts ensures quality workmanship. Additionally, staff understands that American Ramp Company is the only company who can construct the project in a manner ensuring that it could be used for competitions.

Certain provisions of the California Public Contract Code allow public agencies to utilize contracts from other agencies provided those contracts were awarded through a competitive bidding process and explicitly allow for piggybacking.

The City of Moreno Valley awarded a contract to American Ramp Company (Attachment 2) through such a competitive process. This aligns with the City of San Clemente’s purchasing policy No. 201-2-1, which permits leveraging contracts from other jurisdictions when it is costeffective, expedient, and legally permissible.

The proposed Public Works Contract amount is for the not-to-exceed amount of $605,500.00.

This includes prevailing wages for labor, materials, products, sales tax, equipment, drainage, and personnel accommodations to construct a 631-foot pump track with an approximately 18,000 square foot footprint. In utilizing the City of Moreno Valley contract/procurement, the project timeline is able to be expedited while ensuring top value and service for the project budget.

American Ramp Company is booking clients 12-18 months out after contract effective date.

However, they have an opening in the early winter of 2025 that they are currently holding for San Clemente. The construction period is estimated to be 8-10 weeks, weather permitting, beginning early February.

Council Options:
 Adopt Resolution No. 24-204 (Attachment 1), awarding a design and construction contract to American Ramp Company for the construction of an approximately 18,000 square foot pump asphalt pump track, authorizing the City Manager to execute a piggy-back contract substantially similar to that of the City of Moreno Valley, which was awarded to the lowest qualified bidder, approving a 5% project contingency of $30,275, and finding that the project is consistent with the Steed Park Master Plan and is consistent with the environmental findings established in the IS/MND previously certified by the City Council.  Modify and adopt Resolution No. 24-204.
 Continue the item and direct staff to provide additional information.  Do not adopt Resolution No. 24-204 and put the project on hold.

Environmental Review/Analysis:

The pump track project at Steed Park was included in the Initial Study/Mitigated Negative Declaration (“MND”) previously approved by the City Council, which identified potential environmental impacts and corresponding mitigation measures. The IS/MND was certified on May 2, 2023, through the adoption of the site-specific master plan update of Steed Park.

Complete study available here: https://www.san597
Meeting Date: December 10, 2024 Agenda Item: 11L.

CITY OF SAN CLEMENTE 3
clemente.org/home/showpublisheddocument/73914/638179343310770000. This analysis reaffirms the project’s compliance with the MND and confirms that any environmental impacts have been previously adequately addressed. None of the factors requiring a subsequent environmental impact report or negative declaration are triggered by the project—the project does not create any new changes, conditions, circumstances, or environmental impacts not previously analyzed and addressed in the Steed Park MND, and there is no new information involved that was not available when the MND was certified.

Recommended Actions:
..recommendation
Staff recommends the City Council adopt Resolution No. 24- 204, which will:

1. Find the construction of an asphalt pump track is consistent with the Richard T. Steed Memorial Park Master Plan and is consistent with the environmental findings established in the IS/MND previously certified by the City Council.

2. Award a piggy-back contract to American Ramp Company, Inc., the lowest responsible bidder in the City of Moreno Valley’s competitive formal bidding process, for the construction of the pump track at Richard T. Steed Memorial Park, in an amount not to exceed $605,500.

3. Authorize the City Manager to execute a piggy-back contract with American Ramp Company, Inc. for the construction of the pump track at Richard T. Steed Memorial Park, in an amount not to exceed $605,500 in a form substantially similar to the contract awarded by the City of Moreno Valley.

4. Approve a 5% project contingency of $30,275.
..end
Attachment:

1. Resolution No. 24-204

2. Construction Contract Template – Moreno Valley & American Ramp Company Notification:

American Ramp Company
Orange County Mountain Bike Association
Shimano, Inc.

Friends of San Clemente Beaches, Parks & Recreation Foundation 598
Attachment 1
RESOLUTION NO. 24-204

A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF

SAN CLEMENTE, CALIFORNIA, AWARDING A CONTRACT

TO AMERICAN RAMP COMPANY THROUGH A PIGGYBACK

CONTRACT FOR THE CONSTRUCTION OF THE PUMP
TRACK FACILITY AT RICHARD T. STEED MEMORIAL PARK
IN AN AMOUNT NOT TO EXCEED $605,500, AUTHORIZING

THE CITY MANAGER TO EXECUTE THE AGREEMENT,

APPROVING A PROJECT CONTINGENCY IN THE AMOUNT
OF $30,275, AND FINDING THE PROJECT IS CONSISTENT
WITH THE RICHARD T. STEED MEMORIAL PARK MASTER

PLAN IS/MND PREVIOUSLY CERTIFIED BY THE CITY

COUNCIL
WHEREAS, the Richard T. Steed Memorial Park Pump Track project consists of installing an 18,000 square-foot asphalt bicycle pump track on previously developed land WHEREAS, after a review of available contractors, it has been determined that no local contractors within the City of San Clemente are qualified or equipped to perform the required asphalt and ramp work, making local options nonviable; and WHEREAS, City Policy No. 201-2-1 allows for exemptions to made to the formal solicitation process, including the award of contracts when participating in a cooperative purchasing agreement or program, or using a competitively awarded agreement of another local, state, or federal government agency or joint powers authority made up of government agencies to obtain the same supplies, equipment or services at the same or lower prices (commonly referred to as "piggybacking") that utilized competitive bidding procedures that accomplish the purpose and intent of competitive bidding requirements under City Policy; and
WHEREAS, American Ramp Company holds competitively bid contracts with the Cities of Moreno Valley and Maricopa for similar services, and allow for cooperative purchasing (piggybacking) by other public agencies; and WHEREAS, California Public Contract Code allows public agencies to utilize contracts awarded by other jurisdictions through a competitive bidding process, provided such contracts allow for cooperative purchasing; and
WHEREAS, utilizing these existing contracts complies with the City of San Clemente’s purchasing policy, which permits the use of cooperative agreements when they offer cost-effectiveness, expediency, and compliance with applicable laws; and WHEREAS, the City received a proposal from American Ramp Company in the amount of $605,500.00 to design and construct the Richard T. Steed Memorial Park Pump Track Project; and
WHEREAS, the City Council previously accepted donations from Shimano, Inc., 599
Resolution No. 24-204 Page 2
Orange County Mountain Bike Association, and the Friends of San Clemente Beaches, Parks & Recreation Foundation, and further appropriated funds from the Parks Acquisition Fund.

NOW, THEREFORE, the City Council of the City of San Clemente does hereby find, determine and resolve as follows:

Section 1. That the above recitations are true and correct and incorporated herein.

Section 2. That the City Council determines that the construction of an asphalt pump track is consistent with the Richard T. Steed Memorial Park Master Plan and is consistent with the environmental findings established in the IS/MND previously certified by the City Council.

Section 3. That the City Council finds that piggybacking on the competitively awarded agreement of the City of Moreno Valley will obtain the same supplies, equipment or services at the same or lower prices that utilized competitive bidding procedures and accomplishes the purpose and intent of competitive bidding requirements under City Policy and therefore authorizes an exemption to the formal solicitation process allowing for the contract award to be granted to American Ramp Company under Policy 201-2-1 Section XI A.1.4 and 1.4.3(b).

Section 4. That a piggy-back contract is hereby awarded to American Ramp Company, Inc., the lowest responsible bidder in the City of Moreno Valley’s competitive formal bidding process, for the construction of the pump track at Richard T. Steed Memorial Park, in an amount not to exceed $605,500.

Section 5. That the City Manager is authorized to execute a Public Works Contract with American Ramp Company, Inc. providing for the design and construction of the pump track at Richard T. Steed Memorial Park, in an amount not to exceed $605,500, in a form substantial similar to that awarded by the City of Moreno Valley with such project specific changes as may be necessary in the City Manager’s judgment and consistent with City Policy and Public Contracting Law in consultation with the City Attorney.

Section 6. That the City Clerk shall certify to the passage and adoption of this resolution and enter it into the book of original resolutions.

PASSED AND ADOPTED this _____ day of ____________________, _______.

ATTEST:
___________________________ __________________________
City Clerk of the City of Mayor of the City of San
San Clemente, California Clemente, California
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Resolution No. 24-204 Page 3

STATE OF CALIFORNIA )
COUNTY OF ORANGE ) §

CITY OF SAN CLEMENTE )
I, LAURA CAMPAGNOLO, City Clerk of the City of San Clemente, California, do hereby certify that Resolution No. 24-204 was adopted at a regular meeting of the City Council of the City of San Clemente held on the _______ day of _______________________, _________, by the following vote:

AYES:

NOES:

ABSENT:

IN WITNESS WHEREOF, I have hereunto set my hand and affixed the official seal of the City of San Clemente, California, this _____ day of _________________, ________. __________________________
CITY CLERK of the City of
San Clemente, California
Approved as to form:
____________________________
Elizabeth A. Mitchell, City Attorney
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910 Calle Negocio
2nd Floor
San Clemente, California
www.san-clemente.org

AGENDA REPORT

CITY OF SAN CLEMENTE

CITY COUNCIL MEETING
CITY OF SAN CLEMENTE 1
Meeting Date: December 10, 2024 Agenda Item: 11M.

Submitted By: Community Development
Prepared By: Adam Atamian, Community Development Director Subject:
..titl e

CONSIDERATION OF A RESOLUTION APPROVING A FIRST AMENDMENT TO A LAND

LEASE WITH MODIFIED OPTIONS WITH ROSE SOCAL, LLC, DBA GRATITUDE GARDEN

PRESCHOOL FOR THE CITY OWNED LAND LOCATED ADJACENT AND TO THE NORTH OF 92 AVENIDA LA PATA (APN 678-164-01)
..body
Fiscal Impact:

The five-year extension of the lease’s initial term will generate $27,295. If all proposed lease options are further exercised; the proposed lease amendment is estimated to generate a total of $187,765 in revenue over the next twenty-five years, not including revenue from the remainder of the existing initial term.

Summary:

Rose Socal, LLC, DBA Gratitude Garden Preschool (“Lessee”), has leased from the City the vacant, unimproved land adjacent and to the north of their building located at 92 Avenida La Pata, since January 1, 2015. Pursuant to the existing land lease (“Original Lease”), the initial term (“Original Term”) is set to expire December 31, 2029. Lessee has expressed interest in amending the Original Lease to extend the Original Term by five years. Additionally, the Original Lease is proposed to be modified to replace the two five-year extension options with two ten-year extension options. The proposed First Lease Amendment to the Land Lease (“First Lease Amendment”) includes the terms above and a revision to the Original Lease terms that includes an increase in the lease payment.

Background:

At the November 6, 2014 City Council meeting, the Council approved the Original Lease for a 2,833 square-foot portion of a 3.7-acre City-owned parcel (APN 678-164-01), located to the north of 92 Avenida La Pata, and shown in Figure 1, below. The unimproved portion of land is located directly behind the building occupied and owned by Lessee, and the enclosed area houses small accessory structures for the school’s playground area. The lot remains restricted from development due to an easement and underground storm drain, and still serves as an active fuel modification zone for the Orange County Fire Authority. The use remains consistent with Centennial General Plan Policy LU 6.04 which aims to provide for preschool services for the community where those uses are appropriately zoned.

Discussion:

The proposed First Lease Amendment, provided as Exhibit A of Attachment 1, includes amendments to effectuate the following changes to the land lease:
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Meeting Date: December 10, 2024 Agenda Item: 11M.

CITY OF SAN CLEMENTE 2
 The First Lease Amendment extends the Original Term of the lease by five years, to expire on December 31, 2034.
 The lease-extension options within the Original Lease are modified to replace the two fiveyear extension options, with two ten-year extension options.  The First Lease Amendment increases the base rent amount beginning on January 1, 2025 from nine hundred dollars ($900) per quarter to one thousand two hundred fifty dollars ($1,250) per quarter.

Figure 1
Fair Market Value
Pursuant to City Policy 901-1, Property Management Policies and Procedures for Lease and Sale of City-owned Property, whenever there is a substantial amendment to a lease, information must be provided to the City Council indicting the fair market return for the leasehold. City staff recently performed a Fair Market Value assessment for the City-owned land located next to the Animal Shelter property on Avenida Fabricante in August of this year. The recent assessment provides a baseline for an analysis of the subject property. As was the case before, the subject lease is a unique situation that does not provide any direct market comparisons. An integral stipulation of the land lease is that the use of the land is limited due to the development restrictions that exist within this section of the parcel.
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Meeting Date: December 10, 2024 Agenda Item: 11M.

CITY OF SAN CLEMENTE 3
Furthermore, a comparison based on the fair market value of the vacant lot cannot be made because of the property’s restricted use. The standard methods utilized to calculate the average price per square foot or monthly rents would not apply to this lease. Factoring those limitations reduces the value of the Lease and would result in low community benefit. Therefore, staff proposes a minor increase (less than 4%) of the current quarterly rent from $1,209.53 to $1,250.00 effective January 1, 2025. The 3% annual multiplier included in Section 4 of the Original Lease will remain in effect.

Surplus Land Act
Pursuant to Section 102(i)(2)(B) of the Final Updated Surplus Land Act (SLA) Guidelines, dated August 1, 2024, the leasing of the property as proposed, does not constitute a disposition of public land. Per Section 200 of the SLA Guidelines, land must be declared either “surplus land” or “exempt surplus land” before an agency may take action to dispose of it. However, the land is not surplus, and has not been deemed surplus land by the City, because the subject lot remains restricted from development due to an underground storm drain easement, serves as an active fuel modification zone for the Orange County Fire Authority, and continues to be used for openspace zoned purposes. Furthermore, the leasing of this property for a term longer than 15 years does not constitute a “disposition” of land pursuant to Section 102(i)(2)(B)(i) of the SLA Guidelines, which specifies that only leases that include “development”, are a disposition of land. “Development” is defined in this SLA Section as a process of changing the character of the land and or constructing/placing a building on said land – which will not occur at this site. Therefore, the requirements of the SLA are not applicable to this First Lease Amendment.

Council Options:
 Adopt Resolution No. 24-205, which would approve, and authorize the City Manager to execute, the First Amendment to the Land Lease Agreement, included as Exhibit A to the proposed Resolution (Attachment 1).
 Modify and adopt Resolution No. 24-205.
 Continue the item and provide staff with an alternative direction.  Do not approve Resolution No 24-205, which would result in the City not entering a land lease extension of the property at this time. The existing lease will remain in effect until December 31, 2029, and provides the Lessee with two five-year extension options, which, if exercised, would expire on December 31, 2039.

Environmental Review/Analysis:

Not a “project” under the California Environmental Quality Act Guidelines Section 15378 (14 CCR 15378). Approving the amendments to the lease will have no potential to result in either a direct or physical change in the environment or a reasonably foreseeable indirect physical change in the environment.
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Meeting Date: December 10, 2024 Agenda Item: 11M.

CITY OF SAN CLEMENTE 4
Recommended Actions:

City Staff Recommends that the City Council Adopt Resolution No. 24-205, which will:

1. Approve the First Amendment to the Land Lease (contract C14-49) between City and Rose Socal, LLC, DBA Gratitude Garden Preschool, provided as Attachment 1, Exhibit A, for the lease of a 2,833 square-foot portion of the unimproved land (APN 678-164-01), located adjacent and to the north of 92 Avenida La Pata; and

2. Authorize the City Manager to execute the First Amendment to the Land Lease Between City and Gratitude Garden Preschool.
..recommendation
..end
Attachment:

1. Resolution No. 24-205
Exhibit A - First Amendment to the Land Lease

2. Original Recorded Land Lease
Notification:

Gratitude Garden Preschool
636
Attachment 1
RESOLUTION NO. 24-205

A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF

SAN CLEMENTE, CALIFORNIA, APPROVING THE FIRST

AMENDMENT TO A LAND LEASE BY AND BETWEEN CITY

AND ROSE SOCAL, LLC, DBA GRATITUDE GARDEN

PRESCHOOL, FOR A PORTION OF THE CITY OWNED
LAND LOCATED ADJACENT AND TO THE NORTH OF 92
AVENIDA LA PATA (APN 678-164-01)
WHEREAS, pursuant to City policy 901-1, the City delegates the authority to engage in negotiations with current and prospective tenants for City-owned property to the City Manager; and
WHEREAS, on November 6, 2014, the City Council approved a land lease (Contract C14-49) for the 2,833 square-foot portion of land located to the north of 92 Avenida La Pata for the schools recreational use, in accordance with the Centennial General Plan Policy LU 6.04; and
WHEREAS, the subject property, APN 678-164-01, which is adjacent and to the north of 92 Avenida La Pata, remains leased to Rose Socal, LLC, DBA Gratitude Garden Preschool, under the terms of Contract C14-49 until December 31, 2029. The land remains unimproved and is restricted from development due to an easement and underground storm drain; and
WHEREAS, the Lessee has expressed interest in amending the existing lease to extend the term by five years and to modify the lease extension options.

WHEREAS, Pursuant to Section 102(i)(2)(B) of the Final Updated Surplus Land Act (SLA) Guidelines, dated August 1, 2024, the leasing of the property as proposed, does not constitute a disposition of public land. Per Section 200 of the SLA Guidelines, land must be declared either “surplus land” or “exempt surplus land” before an agency may take action to dispose of it. However, the land is not surplus, and has not been deemed surplus land by the City, because the subject lot remains restricted from development due to an underground storm drain easement, serves as an active fuel modification zone for the Orange County Fire Authority, and continues to be used for open-space zoned purposes. Furthermore, the leasing of this property for a term longer than 15 years does not constitute a “disposition” of land pursuant to Section 102(i)(2)(B)(i) of the SLA Guidelines, which specifies that only leases that include “development”, are a disposition of land. “Development” is defined in this SLA Section as a process of changing the character of the land and or constructing/placing a building on said land – which will not occur at this site. Therefore, the requirements of the SLA are not applicable to this First Lease Amendment; and
637
Resolution No. 24-205 Page 2
WHEREAS, City staff has reviewed the proposed First Amendment to the Land Lease Agreement and finds it to be beneficial to the City, in that the First Amendment provides for continued benefits and purposes for the provision of preschool services in the community, and the monthly rent amounts are consistent with a fair market value of the property based on the uses allowed pursuant to said First Amendment.

NOW THEREFORE, the City Council of the City of San Clemente does hereby find, determine and resolve as follows:

SECTION 1. The above recitals are true and correct and incorporated herein by reference.

SECTION 2. The First Amendment to the Land Lease Agreement, attached as Exhibit A, by and between City and Rose Socal, LLC, is approved.

SECTION 3. The City Manager, or the City Manager's designee, is hereby authorized and directed to approve and execute the First Amendment to the Land Lease Agreement (contract C14-49) with Rose Socal, LLC, DBA Gratitude Garden Preschool, in a form substantially similar to that presented to the City Council on December 10, 2024 and attached as Exhibit A.

SECTION 4. City staff is authorized and directed to take such additional actions and execute such additional documents as may be necessary and proper to accomplish the purposes of this resolution.

SECTION 5. The City Clerk shall certify to the passage and adoption of this resolution and enter it into the book of original resolutions.

PASSED AND ADOPTED this ___ day of _____________________, ____.

ATTEST:

City Clerk of the City of Mayor of the City of
San Clemente, California Clemente, California
638
Resolution No. 24-205 Page 3

STATE OF CALIFORNIA )
COUNTY OF ORANGE ) §

CITY OF SAN CLEMENTE )
I, LAURA CAMPAGNOLO, City Clerk of the City of San Clemente, California, do hereby certify that Resolution No. 24-205 was adopted at a regular meeting of the City Council of the City of San Clemente held on the _______ day of _______________________, _________, by the following vote:

AYES:

NOES:

ABSENT:

IN WITNESS WHEREOF, I have hereunto set my hand and affixed the official seal of the City of San Clemente, California, this _____ day of _________________, ________. __________________________
CITY CLERK of the City of
San Clemente, California
Approved as to form:
____________________________
Elizabeth A. Mitchell, City Attorney
639
Exhibit A
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RECORDING REQUESTED BY
AND WHEN RECORDED MAIL TO:

City of San Clemente
100 Ave. Presidio
San Clemente CA 92672
Attn: James Holloway
Recorded in Official Records, Orange County
Hugh Nguyen, Clerk-Recorder
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0.00 0.00 0.00 0.00 24.00 0.00 0.00 0.00
Space above this line for Recorder's use only

LAND LEASE AGREEMENT
THIS LAND LEASE AGREEMENT (this "Agreement") is made as of this � day of 'J)elf'IY:o!X-C , 2014 by and between the CITY OF SAN CLEMENTE, a California Municipal corporation ("City"), and ROSE SOCAL, LLC, a California Limited Liability Corporation ("Gratitude Garden Preschool") (with the City and Preschool sometimes hereinafter being individually referred to as a "Party" and collectively, the "Parties").

Non-Order Search
A. Gratitude Garden Preschool is the tenant of certain real property located at 92 A venida La Pata, in the City of San Clemente, County of Orange, California (the "Preschool Property"), Assessor's Parcel Number 688-132-02. Gratitude Garden Preschool's operations include the use of the Preschool Property as a preschool ("Preschool Facility"). The Preschool Property is improved with a commercial building and 14 on-site parking spaces.

B. The City is the fee owner of certain real property located adjacent to the Preschool Property to the north, more particularly described in Exhibit "A" attached hereto (the "City Land"). The City Land is a 2,833 square foot portion of an unimproved, 3.7 acre parcel ("City Parcel").

C. On September 1 7, 2014, the Planning Commission of the City of San Clemente adopted Resolution No. PC 14-038 approving Conditional Use Permit No. 14-266 and Minor Architectural Permit No. 14-267 to establish the Preschool Facility on the Preschool Property and a playground for the Preschool Facility on the City Land.

D. The Parties hereto desire to enter into this Agreement for the purpose of providing Gratitude Garden Preschool an exclusive lease for the use of the City Land for the playground for the preschool pursuant to the terms and conditions of this Agreement.

NOW, THEREFORE, incorporating the foregoing recitals and in consideration of the mutual covenants and conditions contained herein and for other good and valuable consideration, receipt of which is hereby acknowledged, the Parties agree as follows:

1. Grant of Lease. During the Term (as defined and described in Sections 2 and 3 below) of this Agreement, the City hereby grants to Gratitude Garden Preschool an exclusive q. 2465/062266-0160
7886175.1 a12/22/14