FOR THE COUNCIL MEETING OF AUGUST 16, 2022
COUNCIL AGENDA REPORT
TO: City Council
FROM: City Manager
Prepared by: Chief Information Officer
SUBJECT: WASTEWATER TREATMENT PLANT FIBER CONNECTION
RECOMMENDATION:
That the City Council adopt a Resolution approving a contract with Astound Business Solutions for the installation of a fiber optic connection between the Wastewater Treatment Plant and the City's fiber ring in the amount of $300,000, which are American Rescue Plan Act (ARPA) funds already appropriated and allocated for this project.
BACKGROUND:
The City received $37.2 million of ARPA grant funding in 2021. A project review team was formed to create a schedule of priority projects and determine how to make the best use of these funds. The team consisted of City leadership, department staff, and members from a consulting firm specializing in federal grant funding requirements including ARPA-specific requirements. The vetting process included alignment with City goals and objectives, criticality to City operations, and conformance with the intent of ARPA funding.
The Wastewater Treatment Plant (WWTP) is a critical piece of the City's infrastructure and is currently connected to the City's data center by a point-to-point microwave link. This link is used for all connectivity to City electronic resources including telephone communication, email, system performance monitoring, security scanning and monitoring, user authentication, security updates, remote workstation support, system patching, internet resources (including Microsoft 365 and other hosted services), supervisory control and data acquisition (SCADA) control, among others. WWTP users have reported frequent outages and sporadic interruptions while using these tools via the microwave link and the problem is exacerbated on days when fog or marine layer is present, a frequent occurrence in Santa Maria. The intermittent loss of connection impairs staff's ability to work effectively and can introduce security risks if scheduled system updates and monitoring are interrupted.
The WWTP project was determined to meet the criteria for ARPA funding as it will ensure stable and reliable communications to WWTP control systems and will enhance the security of the City's critical infrastructure. Specifically, the final rule for ARPA funding states that "funds may be used for cybersecurity needs to protect water or sewer infrastructure, such as developing effective cybersecurity practices and measures at drinking water systems and publicly owned treatment works." Establishing a consistent, high-speed, wired connection is critical to supporting and securing the facility.
DISCUSSION:
On November 15, 2016, the City entered into an agreement with Wave Business Solutions (now Astound Business Solutions) to develop a city-wide fiber network. That agreement, known as the Service Swap Agreement, initiated a project to create a fiber network using the existing conduit and installing additional conduit and fiber in locations throughout the City. Provisions of the agreement include the exchange of services between Astound and the City in which Astound would provide the originally scoped fiber network, support for the network, and Internet services to the City and the City would provide data center space at 1111 West Betteravia (Police Department) and allow Astound to share certain segments of the City's conduit system. The agreement was amended several times to accommodate construction changes, add several segments to the fiber network, and extend the services and support provisions of the agreement to 30 years.
On December 20, 2021, in recognition of the fact that the City and Astound have a long- term shared interest in the development, support and stability of the fiber network, and pursuant to the City's purchasing guidelines, the City established Astound Business Solutions as its Standardization contractor for fiber network construction. Astound Business Solutions has unique and detailed knowledge of the fiber network and using them for future expansion of the network will save the City time and money in network design, component selection, shortest path construction, and splicing into the existing network.
On August 8, 2022, the City and Astound Business Solutions executed a Master Services Agreement (Attachment B) for future development of the fiber network. Acknowledging that the existing Service Swap Agreement fairly identified the bilateral swap arrangement for the existing network, both parties agreed that future segments of the network would be completed using a purchase order, titled an "Order for Dark Fiber Services" (Attachment A) under the Master Services Agreement. This project will be initiated using an Order for Dark Fiber Services under the Master Services Agreement. The cost of the project is $300,000 and is expected to begin in the fourth quarter of 2022.
If approved, this project will be completed by Astound Business Solutions and the Information Technology Division in consultation with the Utilities Department, Public Works Department, and Community Development Department, as necessary.
Alternatives:
The alternative is to stay with the existing microwave point-to-point connection. This option has the downside of intermittent outages due to poor weather conditions including rain and fog.
Fiscal Considerations:
Using a one-time payment of $300,000, a portion of the ARPA funds granted to the City, for the buildout of the fiber connection would also include 10 years of service, support, and maintenance to be performed by the contractor. After 10 years, the City would revisit whether to extend the contract to maintain the service, discontinue the service, or move to another technology.
2 Impact to the Community:
The WWTP is part of the City's critical infrastructure. This project will help stabilize communications between the WWTP and the City's main network and data centers. It will also help secure the SCADA system (control and monitoring system at the facility) and other technology devices used there.
fref-t"-\
JEFFR M ARECIC
Chief I orm ion Officer
JASON STILWELL
City Manager
Attachment A: Order for Dark Fiber Services
Attachment B: Astound Master Services Agreement
3 RESOLUTION NO.
A RESOLUTION OF THE CITY COUNCIL OF THE
CITY OF SANTA MARIA, CALIFORNIA, APPROVING AN ORDER FOR DARK FIBER
SERVICES WITH ASTOUND BUSINESS SOLUTIONS FOR THE INSTALLATION OF A
FIBER OPTIC CONNECTION BETWEEN THE WASTEWATER TREATMENT PLANT
AND THE CITY'S FIBER RING NETWORK
WHEREAS, the Wastewater Treatment Plant (WWTP) is a critical piece of the City's infrastructure and is currently connected to the City's data center by a point-to-point microwave link; and
WHEREAS, the microwave link is used for all connectivity to City electronic resources including telephone communication, email, system performance monitoring, security scanning and monitoring, user authentication, security updates, remote workstation support, system patching, Internet resources (including Microsoft 365 and other hosted services), and supervisory control and data acquisition (SCADA) control; and WHEREAS, WWTP users have reported frequent outages and sporadic interruptions while using these tools via the microwave link, and the problem is exacerbated on days when fog or marine layer is present; and
WHEREAS, establishing a reliable, high-speed, wired connection is critical to supporting and securing the facility and City services; and WHEREAS, the City received $37.2 million of American Rescue Plan Act (ARPA) grant funding in 2021, and a project review team was formed to create a schedule of priority projects and determine how to make the best use of these funds; and WHEREAS, the project review process included alignment with City goals and objectives, criticality to City operations, and conformance with the intent of ARPA funding. The WWTP project was determined to meet these criteria as it will ensure stable and reliable communications to WWTP control systems and will enhance the security of the City's critical infrastructure; and
WHEREAS, the City and Astound Business Solutions have executed a Master Services Agreement to provide fiber network construction and support services; and WHEREAS, the total cost of the project is $300,000 which includes the buildout of the fiber connection and 10 years of service, support, and maintenance to be performed by Astound Business Solutions using an Order for Dark Fiber Services pursuant to the Master Services Agreement.
NOW, THEREFORE, BE IT RESOLVED by the City Council of the City of Santa Maria that:
1) The City Council authorizes and directs the City Manager, or designee, to execute an Order for Dark Fiber Services with Astound Business Solutions toimplement the Wastewater Treatment Plant fiber connection; and
2) The Chief Deputy City Clerk is hereby authorized to make minor changes herein to address clerical errors, so long as substantial conformance of the intent of this document is maintained. In doing so, the Chief Deputy City Clerk shall consult with the City Manager and City Attorney concerning any changes deemed necessary.
PASSED AND ADOPTED at a regular meeting of the City Council of the City of Santa Maria, California, held this 16th day of August 2022.
ATTEST:
Chief Deputy City Clerk
Mayor
c
ORDER FOR DARK FIBER SERVICES
This Order for Dark Fiber Services (this "Service Order") is entered into as of the date of last signature below (the "Effective Date") by and between by and between ASTOUND BUSINESS SOLUTIONS, LLC, a Delaware limited liability company, acting on behalf of itself and as agent for its Affiliates (collectively, "Provider"), and the CITY OF SANTA MARIA, a California municipal corporation ("Customer"). This Service Order is made pursuant to and will be governed by that certain Master Services Agreement for Enterprise Services —Governmental Customer between Provider and Customer dated , 2022 (the "MSA"). All capitalized terms used but not defined in this Service Order shall have the meanings given to them MSA.] Section 1: Customer Information.
Account Name: City of Santa Maria
Account Executive to Customer: Lynn Cardoza
Invoicing Address: 110 East Cook Street
Santa Maria, CA 93454
ATTN: Accounts Payable
Section 2: Dark Fiber Services. Provider shall provide to Customer the dark fiber services set forth in the following table (each, a "Service"). The Services shall connect the end points set forth below (each such location a "Service Site"), using the number of dark fiber strands described below, in exchange for the one-time, non -recurring installation charges ("NRC") set forth below, and the monthly recurring charges ("MRC") set forth below:
Fiber Route
Identifier
A Location
End Point
Z Location
End Point
Description
of Fiber
NRC
MRC
Fiber
Route 1
601 Black Road
Santa Maria, CA 93458
Demarcation Point: MPOE
1111 West Betteravia Road
Orcutt, CA 93455
Demarcation Point:
Lat: 34.960188
Long: -120.400561
4 strands
single mode
dark fiber
$202,800.00
$810.00
Fiber
Route 2
601 Black Road
Santa Maria, CA 93458
Demarcation Point: MPOE
1111 West Betteravia Road
Orcutt, CA 93455
Demarcation Point:
Lat: 34.960188
Long: -120.400561
2 strands
single mode
dark fiber
TOTAL COST:
$202,800.00
$810.00
A map depicting the approximate location of Fiber Route 1 is attached to this Service Order as Schedule 1. and is incorporated into and made a part of this Service Order by this reference. A map depicting the approximate location of Fiber Route 2 is attached to this Service Order as Schedule 2 and is incorporated into and made a part of this Service Order by this reference.
Section 3: Initial Service Term. The Initial Service Term for the Services is one hundred twenty (120) months. The estimated installation date for the Services is approximately 18-20 weeks from the Effective Date of this Service Order.
Section 4: Payment of MRC. Customer has requested to pay the MRC for the Initial Service Term upfront and Provider has agreed.
For purposes of this Service Order, Provider shall bill Customer for the aggregate MRC in the amount of $ 97,200.00 within thirty (30) days of the Service Commencement Date. Customer shall pay the invoice for the aggregate MRC within thirty (30) days of receipt of such invoice.
ORDER FOR DARK FIBER SERVICES
Wave Business Solutions, LLC / City of Santa Maria
[Signatures on following page.]
PROPRIETARY AND CONFIDENTIAL
pg. 1
06/29/2022
Attachment A
The submission of this Service Order to Customer by Provider does not constitute an offer. Instead, this Service Order will become effective only when both parties have signed it. The date this Service Order is signed by the last party to sign it (as indicated by the date associated with that party's signature) will be deemed the Effective Date of this Service Order.
CUSTOMER: PROVIDER:
CITY OF SANTA MARIA WAVE BUSINESS SOLUTIONS, LLC
By By
Name: Name:
Title: Title:
Date: Date:
[The remainder of this page is intentionally left blank.] ORDER FOR DARK FIBER SERVICES pg. 2
Wave Business Solutions, LLC / City of Santa Maria 06/29/2022
PROPRIETARY AND CONFIDENTIAL
SCHEDULE 1
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ORDER FOR DARK FIBER SERVICES
Map Depicting Approximate Location of Fiber Route 1
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ORDER FOR DARK FIBER SERVICES
Wave Business Solutions, LLC / City of Santa Maria
pg. 3
06/29/2022
PROPRIETARY AND CONFIDENTIAL
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MASTER SERVICES AGREEMENT FOR ENTERPRISE SERVICES — GOVERNMENTAL CUSTOMER 8th August
This Master Services Agreement for Enterprise Services (this "MSA") is entered into as of this day of 2022 (the "Effective Date"), by and between ASTOUND BUSINESS SOLUTIONS, LLC, a Delaware limited liability company, acting on behalf of itself and as agent for its Affiliates (collectively, "Provider"), and the CITY OF SANTA MARIA, a California municipal corporation ("Customer"). For purposes of this MSA, the term "Affiliate" shall mean any other person which directly, or indirectly through one or more intermediaries, controls, or is controlled by, or is under common control with, the first person or any of its subsidiaries. Affiliates of Astound Business Solutions, LLC include, but are not limited to (i) RCN Telecom Services, LLC, (ii) Grande Communications Networks, LLC, and (Hi) Wave Business Solutions, LLC. Each of Provider and Customer may be referred to in this MSA as a "Party" and together as the "Parties." ARTICLE 1 —STRUCTURE OF AGREEMENT
1.1 Purpose of MSA. Provider and its Affiliates provide various facilities -based telecommunications services, including Ethernet transport, dedicated internet access, phone over fiber, dark fiber, and related services (as applicable, the "Services").
This MSA is neither an agreement to purchase nor a commitment to provide Services. The purpose of this MSA is to provide the general terms, conditions and framework within which Customer and its Affiliates may from time to time purchase Services from Provider and its Affiliates, pursuant to one or more "Service Orders," as described in Section 1.2 below.
1.2 Service Orders. The purchase of Services shall be accomplished only through the negotiation and mutual execution and delivery of a Service Order memorializing the terms and conditions pursuant to which Provider shall provide the desired Services to Customer. Service Orders shall clearly specify the following: (1) the type of Service at issue (e.g., Internet access, data transport, VoIP, dark fiber, etc.); (ii) the location(s) at which the Service is to be provided (each, a "Service Site"); (Hi) the initial term of the Service Order (the "Initial Service Term"); (iv) the pricing for the Service, including (a) the monthly recurring charges ("MRC") for the Service, and (b) any non -recurring charges ("NRC") associated with installation of the Service; and (v) any other terms or conditions specific to the particular Service Order. Each fully -executed Service Order shall be governed by and become part of this MSA, and this MSA together with all fully -executed Service Orders shall be collectively referred to as the "Agreement." Depending on the location of the Service Site, in some instances Services may be provided by an Affiliate of Provider.
1.3 Additional Documents Comprising Agreement; Order of Precedence. If one or more Service Level Agreements are attached to this MSA as Exhibits (the "SLA"), the SLA constitutes a part of this MSA. Customers use of any Services purchased pursuant to the Agreement will also be governed by Provider's Acceptable Use Policy for Commercial Services (the "AUP") which is attached hereto as Exhibit C. Additional provisions that are applicable only to specific types of Services are contained in Provider's Service -Specific Terms and Conditions (the "Service -Specific T&Cs") which is attached hereto as Exhibit D. In the event of a conflict between the provisions of any of the foregoing documents, the documents shall have the following order of precedence unless expressly stated otherwise in a particular Service Order: (i) this MSA (including the SLA); (ii) the applicable Service Order; (iii) the AUP; and (iv) the Service -Specific T&Cs.
ARTICLE 2 — TERM AND RENEWAL
2.1 Term of MSA. The term of this MSA (the "MSA Term") shall be for five (5) years, commencing on the Effective Date and expiring on the date that is one day prior to the fifth (5th) anniversary of the Effective Date. Notwithstanding the foregoing, so long as any one or more Service Orders entered into pursuant to this MSA remain in effect, this MSA shall not terminate with respect to said Service Orders but shall continue to govern same until the expiration or termination of said Service Orders.
2.2 Term of Service Orders. The Initial Service Term of, each Service Order shall be as specified in the Service Order. Upon expiration of the Initial Service Term, unless either Party,terminates the Service Order by giving written notice of termination to the other Party not less than thirty (30) days prior to the end of the Initial Service Term, this Service Order will begin to automatically renew on a month -to -month basis (the "Renewal Term"). During the Renewal Term, either Party may terminate this Service Order by giving no less than thirty (30) days' advance written notice of termination to the other Party. Written notice of termination by Customer must be given to Provider by completing and submitting the online "Change of Service" form on the Astound Business Solutions website located at http://www.astound.com/business/support/macd . The total period of time a MASTER SERVICES AGREEMENT FOR ENTERPRISE SERVICES — GOVERNMENTAL CUSTOMER Astound Business Solutions, LLC / City of Santa Maria
pg. 1
07/19/2022
Attachment B
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Service Order is in effect is referred to as the "Service Term" for the Service Order at issue. The total period of time a Service Order is in effect is referred to as the "Service Term" for the Service Order at issue.
ARTICLE 3 — INSTALLATION, TESTING, ACCEPTANCE AND USE
3.1 Service Site; Demarcation Points; Equipment. Unless a Service Site is within Provider's control, Customer shall provide Provider with access to the Service Site as and to the extent reasonably necessary for Provider to install, test, inspect and maintain the Service(s) ordered during the Service Term. Unless otherwise stated in a Service Order: (i) Provider shall be solely responsible for the provision, operation and maintenance of all equipment and facilities (the "Provider Equipment") necessary to connect Provider's network facilities to the Customer demarcation point(s) at the Service Site (the "Demarcation Point(s)"); and (ii) Customer shall be solely responsible for the provision, operation and maintenance of all equipment and facilities (the "Customer Equipment") from the Demarcation Point(s) to Customer's internal network. Unless a Service Site is within Provider's control, Customer shall be responsible for maintaining appropriate conditions at the Service Site, including HVAC, electrical power, and security. Title to the Provider Equipment shall at all times remain vested in Provider. Customer shall not re -arrange, disconnect, tamper with, attempt to repair, or otherwise interfere with the Provider Equipment, nor shall Customer permit any third party to do so.
3.2 Testing, Acceptance and Service Commencement Date. Provider shall use commercially reasonable efforts to install the Services consistent with Provider's usual and customary installation timeline, and shall endeavor to keep Customer regularly informed regarding installation progress. Provider shall notify Customer when a Service has been installed and is ready for testing and use. Customer may, at Customer's option, participate in Provider's final testing of the Service. For Services having a committed bandwidth, the committed information rate shall be measured at the Ethernet layer and includes the Ethernet frame itself. The Initial Service Term for the Service at issue shall commence on the date on which the Service has been installed, tested and is active and available for use by Customer (the "Service Commencement Date"). Customer shall have a period of five (5) business days after the Service Commencement Date in which Customer may notify Provider that the Service at issue is not functioning properly.
If Customer notifies Provider of problems with a Service pursuant to this Section 3.2, Provider shall investigate and correct same and the Service Commencement Date shall be revised to be the first calendar day after the date on which Provider has corrected the problems. Unless Customer delivers notification of problems to Provider within the time period set forth above, Customer shall be deemed to have accepted the Service at issue and to have confirmed that the Service has been installed and is functioning properly as of the Service Commencement Date.
3.3 No Sub -Licensing; Non -Compete. Any Services provided to Customer pursuant to the Agreement are for the sole benefit of Customer. Customer shall not grant to any third party the right to use any of the Services, regardless of whether such grant were to take the form of a license, sublicense, lease, sublease, or any other form. Nor shall Customer use the Services for commercial purposes that are competitive with Provider's business (e.g., use the Services to sell Internet access services, point-to- point data transport services, VoIP services, etc., to third parties within Provider's service area).
ARTICLE 4— PAYMENT AND BILLING
4.1 Invoicing. All amounts owed by Customer to Provider under the Agreement shall be collectively referred to as "Fees." Provider shall begin billing Customer for the MRC applicable to a Service as of the Service Commencement Date. Invoices shall be delivered monthly, and shall be paid by Customer within thirty (30) days of receipt. Fixed Fees shall be billed in advance and usage -based Fees shall be billed in arrears. Fixed fees for any partial month shall be pro -rated. For Services having an NRC, unless otherwise stated in the Service Order, Provider shall invoice Customer for the NRC upon full -execution of the Service Order. Except for amounts disputed in good faith by Customer pursuant to Section 4.2 below, past due amounts shall bear interest in the amount of 1.5% per month, or the highest amount allowed by law, whichever is lower.
4.2 Disputed Invoices. If Customer in good faith disputes any portion of a Provider invoice, Customer shall pay the undisputed .portion of the invoice and submit written notice to Provider regarding the disputedamount, which notice shall include documentation supporting the alleged billing error (each such notice, a "Fee Dispute Notice"). A Fee Dispute Notice must be submitted to Provider within thirty (30) days from the date the invoice at issue is received by Customer. Customer waives the right to dispute any Fees not disputed within such thirty (30) day period. The Parties shall negotiate in good faith to attempt to resolve any such disputes within sixty (60) days after Customer's delivery of the applicable Fee Dispute Notice.
MASTER SERVICES AGREEMENT FOR ENTERPRISE SERVICES — GOVERNMENTAL CUSTOMER pg. 2 Astound Business Solutions, LLC / City of Santa Maria 07/19/2022
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4.3 Applicable Taxes. All charges for Services set forth in Service Orders are exclusive of Applicable Taxes (as defined below). Except for taxes based on Provider's net income or taxes for which Customer possesses a valid exemption certificate, Customer shall be responsible for payment of all applicable taxes and regulatory fees, however designated, that arise in any jurisdiction, including, without limitation, value added, consumption, sales, use, gross receipts, excise, access, bypass, or other taxes, fees, assessments, duties, charges or surcharges, that are imposed on, incident to, or based upon the provision, sale, or use of the Service(s) (collectively "Applicable Taxes"). The Applicable Taxes will be individually identified on invoices. If Customer is entitled to an exemption from any Applicable Taxes, Customer is responsible for presenting Provider with a valid exemption certificate (in a form reasonably acceptable to Provider). Provider will give prospective effect to any valid exemption certificate provided in accordance with the preceding sentence.
ARTICLE 5 — DEFAULT AND REMEDIES
5.1 Customer Default. Each of the following shall constitute a default by Customer under the Agreement (each a separate event of "Default"): (i) if Customer fails to pay any undisputed Fees when due, the failure of Customer to cure same within ten (10) days after receiving written notice from Provider regarding such failure to pay; (ii) if Customer fails to comply with any other material provision of the Agreement, the failure of Customer to cure same within thirty (30) days of receiving written notice from Provider regarding such non-compliance; or (iii) if Customer files or initiates proceedings, or has proceedings initiated against it, seeking liquidation, reorganization or other relief (such as the appointment of a trustee, receiver, liquidator, custodian or other such official) under any bankruptcy, insolvency or other similar law, and the same is not dismissed within sixty (60) days.
5.2 Remedies for Customer Default. In the event of a Default by Customer under the Agreement, Provider may, at its option:
(i) suspend any applicable Services until such time as the Customer Default has been corrected (provided, however, that any suspension shall not relieve Customer's on -going obligation to pay Provider all Fees and other amounts due under the Agreement as if such suspension of Services had not taken place); (ii) terminate the applicable Service(s) and/or the applicable Service Order(s); (iii) after the occurrence of any two Customer Defaults in any twelve (12) month period, terminate all Service Orders entered into with Customer; and/or (iv) pursue any other remedy available to Provider under the Agreement or applicable law. In the event of early termination for Customer Default pursuant to this Section 5.2, Customer shall pay to Provider the Termination Charge described in Section 6.3 below.
5.3 Provider Default. Each of the following shall constitute a Default by Provider under the Agreement: (i) if Provider fails to comply with any material provision of the Agreement other than provisions of the SLA, the failure by Provider to cure same within thirty (30) days of receiving written notice from Customer regarding such non-compliance; or (ii) Provider files or initiates proceedings, or has proceedings initiated against it, seeking liquidation, reorganization or other relief (such as the appointment of a trustee, receiver, liquidator, custodian or other such official) under any bankruptcy, insolvency or other similar law, and the same is not dismissed within sixty (60) days.
5.4 Remedies for Provider Default. In the event of a Default by Provider under the Agreement Customer may, at its option:
(i) terminate the applicable Service(s) and/or the applicable Service Order(s); and/or (ii) pursue any other remedy available to Customer under the Agreement or applicable law. Early termination by Customer shall be accomplished by providing termination notice to Customer's account manager and to the notice address specified in Article 13 below. In the event of early termination for Provider Default pursuant to this Section 5.4, Provider shall reimburse Customer for any pre -paid, unused monthly service Fees attributable to the terminated Service(s) and/or Service Order(s), and Customer shall have no further liability to Provider for the terminated Services) and/or Service Order(s). Early termination by Customer pursuant to this Section 5.4 shall not relieve Customer of its obligations to pay all Fees incurred prior to the early termination date.
ARTICLE 6 — EARLY TERMINATION & PORTABILITY
6.1 . Early Termination for Non -Appropriation. Customer is a public entity subject tolegislativeappropriation requirements.
As a general matter, Customer cannot legally be obligated to make payments for Services that are provided after the end of the fiscal period in which Customer executes a particular Service Order. In the event that, for any future fiscal period, sufficient funds are not appropriated or allocated for payment of any one or more Service Orders, Customer may terminate the Service Order at issue as a matter of public convenience as provided herein without incurring a Termination Charge or any other early termination MASTER SERVICES AGREEMENT FOR ENTERPRISE SERVICES — GOVERNMENTAL CUSTOMER pg. 3 Astound Business Solutions, LLC / City of Santa Maria 07/19/2022
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fee. If and when Customer becomes aware that non -allocation of funds for the coming fiscal period appears likely, Customer shall use reasonable efforts to notify Provider of that possibility prior to the end of the then -current fiscal period. Once the non - appropriation decision has been made, Customer shall, as soon as reasonably practicable, deliver written notice of termination for non -appropriation to Provider specifying which Service or Services and/or which Service Order or Service Orders are being terminated for non -appropriation and the date on which such early termination shall occur. Customer shall remain obligated to pay for all Services delivered through the date of termination.
6.2 Early Termination for Customer Convenience. Customer may, at any time after executing a Service Order, discontinue one or more of the Services ordered and/or terminate the Service Order by giving at least thirty (30) days' advance written notice to Provider by completing and submitting the online "Change of Service" form on the Astound Business Solutions website located at http://www.astound.com/business/support/macd . Any early termination of a Service pursuant to this Section 6.2 shall be referred to as "Termination for Customer Convenience." In the event of Termination for Customer Convenience, Customer shall pay to Provider the Termination Charge described in Section 6.4 below.
6.3 Early Termination for Default. In accordance with Article 5 above, either Party may elect to terminate one or more Service Orders prior to the scheduled expiration date in the event of an uncured Default by the other Party.
6.4 Termination Charge. In the event of Termination for Customer Convenience pursuant to Section 6.2 above, or termination for Customer Default pursuant to Section 5.2 above, Customer shall pay a Termination Charge to Provider. The "Termination Charge" shall equal the sum of the following: (i) all unpaid amounts for Services actually provided prior to the termination date; (ii) any portion of the NRC for the terminated Service(s) that has not yet been paid to Provider; (iii) with respect to off -net Services only, any documented cancellation or termination charges or fees imposed on Provider by any third party in connection with the early termination of the Services; and (iv) one hundred percent (100%) of all remaining MRCs Customer was to pay Provider for the Service during the remainder of the applicable Service Term. If incurred, the Termination Charge will be due and payable by Customer within thirty (30) days after the termination date of the Service at issue. Customer acknowledges that the calculation of the Termination Charge is a genuine estimate of Provider's actual damages and is not a penalty.
6.5 Portability; Substitution of Services. At any time during the Service Term of a Service Order, Customer may elect to substitute new Services for then -existing Services. In such event, Provider will waive the Termination Charge associated with the termination of the then -existing Services as long as: (i) the Fees payable to Provider in connection with the substitute Services are equal to or greater than the Fees of the discontinued Services; (ii) Customer commits to retain the substitute Services for a period equal to or greater than the remainder of the Service Term for the discontinued Services; (iii) Customer pays all applicable installation and other NRCs, if any, for provision of the substitute Services; and (iv) Customer reimburses Provider for all reasonable and documented engineering, installation and construction costs associated with the discontinued Services, calculated on a time and materials basis, that have not already been recovered by Provider by the time of the substitution.
ARTICLE 7 — CONFIDENTIAL INFORMATION
7.1 Definition of Confidential Information. "Confidential Information" shall mean all information regarding the telecommunications needs of Customer and the Services that Provider offers under the Agreement which is disclosed by one Party ("Disclosing Party") to the other Party ("Receiving Party"), to the extent that such information is marked or identified as confidential or proprietary or would be reasonably deemed confidential or proprietary given the circumstances surrounding its disclosure. All written or oral pricing and contract proposals, as well as network maps or diagrams exchanged between the Parties shall be deemed Confidential Information, whether or not so designated. The fact that Customer is a customer of Provider shall not be deemed Confidential Information and may be freely disclosed by either Party. Information shall not.be deemed Confidential.
Information if (i) it is independently developed by or for the Receiving Party, (ii) it is lawfully received by the Receiving Party free • of any obligation to keep it confidential, (iii) it becomes generally available to the public other than by breach•of the Agreement, or (iv) it was known to the Receiving Party prior to the Disclosing Party's disclosure of same. -
7.2 Obligations Regarding Confidential Information. Confidential Information is the property of the Disclosing Party and shall be returned to the Disclosing Party upon request. The Receiving Party shall hold all Confidential Information in confidence. The Receiving Party: (i) shall use such Confidential Information only for the purposes of performing its obligations and/or enforcing its MASTER SERVICES AGREEMENT FOR ENTERPRISE SERVICES — GOVERNMENTAL CUSTOMER pg. 4 Astound Business Solutions, LLC / City of Santa Maria 07/19/2022
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rights under the Agreement; (ii) shall reproduce such Confidential Information only to the extent necessary for such purposes; (iii) shall restrict disclosure of such Confidential Information to employees, contractors, advisors or consultants that have a need to know for such purposes (with disclosure to contractors, advisors and consultants being limited to contractors, advisors and consultants that have signed a non -disclosure agreement to protect the Confidential Information of third parties); (iv) shall not disclose Confidential Information to any third party without prior written approval of the Disclosing Party except as expressly provided in the Agreement or as required by law, by court order, by administrative order of an agency having jurisdiction, or in the enforcement of its rights under the Agreement; and (v) shall use at least the same degree of care (in no event less than reasonable care) as it uses with regard to its own proprietary or confidential information to prevent the disclosure, unauthorized use or publication of Confidential Information. In the event a Receiving Party is required to disclose Confidential Information of the Disclosing Party pursuant to law, court order or administrative order of an agency having jurisdiction, the Receiving Party will, if such notice is permitted by law, notify the Disclosing Party of the required disclosure with sufficient time for the Disclosing Party to seek judicial relief from the required disclosure, and reasonably cooperate with the Disclosing Party in any efforts the Disclosing Party may take to obtain protective measures in respect to the required disclosure. The Parties agree that breach of this Article 7 may cause irreparable injury for which monetary damages are not an adequate remedy; accordingly, each Party may seek injunctive relief and any other available equitable remedies to enforce the provisions of this Article 7.
7.3 California Public Records Act. Notwithstanding anything to the contrary contained elsewhere in this Article 7, the Parties understand and acknowledge that Customer is a governmental entity, and that California law limits the ability of Customer to shield from public disclosure any information given to Customer. Accordingly, the Parties agree to work together to avoid disclosures to Customer by Provider of confidential information which would result in economic loss or damage to Provider if such information were to be disclosed to third persons by Customer pursuant to a request submitted under the California Public Records Act, California Government Code §§ 6250 — 6276.48, or other similar public disclosure law. In the event that Customer receives a request pursuant to the Public Records Act (or other similar law) to disclose information identified by Provider in writing as confidential, Customer's sole obligations to Provider shall be: (i) to promptly notify Provider; and (ii) to refrain from disclosing such records for a period of up to ten (10) business days to allow Provider an opportunity to seek legal protection against disclosure from a court of competent jurisdiction. Customer will not be required to withhold requested records beyond the ten (10) business days unless it may do so based on good faith reliance upon an exception to disclosure under the Public Records Act, or unless Customer is ordered to withhold disclosure by the order of a court having competent jurisdiction. Customer may, but shall not be required, to join in any legal proceedings relating to the requested disclosure unless required to do so by the court. In the event that Provider initiates legal proceedings, or Customer initiates legal proceedings or withholds requested records at Provider's request, Provider shall indemnify and hold Customer harmless from and against all costs, attorneys' fees, expenses, liabilities, damages or other liabilities Customer may incur due to the legal proceedings initiated at and/or Customer's withholding of records at Provider's request. Customer shall not be liable to Provider/or any loss, cost or expense relating to the disclosure of requested records if Provider fails to obtain legal protection against disclosure and Customer releases the records in good faith.
ARTICLE 8 — LIMITATION OF LIABILITY
8.1 General Limitations. Neither Party shall be liable to the other Party for any loss or damage occasioned by a Force Majeure Event. Except for Customer's obligation to pay Fees, and except as expressly provided to the contrary elsewhere in the Agreement, each Party's aggregate liability to the other Party for any and all causes and claims arising under the Agreement, whether based in contract, tort, warranty or otherwise shall be limited to the lesser of: (i) the actual direct damages sustained by the injured Party; or (ii) an amount equivalent to the total MRC received by Provider from Customer for the Service(s) at issue during the preceding twelve (12) month period.
8.2 Service Level Agreement. Should Provider fail, on any one or more occasions, to deliver any one or more Services to Customer in accordance with all of the terms and conditions contained in the applicable SLA, Customer's sole and exclusive remedy for such failure shall be as set forth in the SLA. No such failure shall be considered a Default by Provider under the Agreement.
8.3 No Special Damages. EXCEPT FOR (i) EACH PARTY'S CONFIDENTIALITY OBLIGATIONS UNDER ARTICLE 7 ABOVE, (ii) EACH PARTY'S THIRD -PARTY INDEMNIFICATION OBLIGATIONS UNDER ARTICLE 9 BELOW, AND (Hi) CLAIMS ARISING FROM A PARTY'S
INTENTIONAL MISCONDUCT, IN NO EVENT SHALL EITHER PARTY BE LIABLE TO THE OTHER PARTY FOR ANY INDIRECT, INCIDENTAL,
SPECIAL, CONSEQUENTIAL, EXEMPLARY OR PUNITIVE DAMAGES WHATSOEVER, ARISING OUT OF OR INCURRED IN CONNECTION MASTER SERVICES AGREEMENT FOR ENTERPRISE SERVICES — GOVERNMENTAL CUSTOMER pg. 5 Astound Business Solutions, LLC / City of Santa Maria 07/19/2022
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WITH A PARTY'S PERFORMANCE OR FAILURE TO PERFORM UNDER THIS AGREEMENT, INCLUDING, BY WAY OF EXAMPLE AND NOT
BY WAY OF LIMITATION, LOST PROFITS, LOST REVENUE, LOSS OF GOODWILL, LOSS OF ANTICIPATED SAVINGS, LOSS OF BUSINESS
OPPORTUNITY, LOSS OF DATA OR COST OF PURCHASING REPLACEMENT SERVICES, EVEN IF THE OTHER PARTY HAD BEEN ADVISED, KNEW OR SHOULD HAVE KNOWN OF THE POSSIBILITY OF SUCH SPECIAL DAMAGES.
8.4 Disclaimer of Warranties. EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT, PROVIDER MAKES NO WARRANTIES OR
REPRESENTATIONS, EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, EITHER IN FACT OR BY OPERATION OF LAW, AS TO THE
DESCRIPTION, QUALITY, MERCHANTABILITY, COMPLETENESS, FITNESS FOR A PARTICULAR PURPOSE OR USE OF ANY SERVICES PROVIDED PURSUANT TO THIS AGREEMENT.
8.5 Assumption of Risk. PROVIDER HAS NO CONTROL OVER AND EXPRESSLY DISCLAIMS ANY LIABILITY OR RESPONSIBILITY
WHATSOEVER FOR THE CONTENT OF ANY INFORMATION TRANSMITTED OR RECEIVED BY CUSTOMER THROUGH THE SERVICES,
SERVICE INTERRUPTIONS ATTRIBUTABLE TO CUSTOMER'S NETWORK, ANY CUSTOMER EQUIPMENT FAILURES, OR ANY OTHER SUCH CAUSES, AND CUSTOMER USES THE SERVICES AT CUSTOMER'S OWN RISK. CUSTOMER SHALL BE RESPONSIBLE FOR THE SECURITY, CONFIDENTIALITY AND INTEGRITY OF INFORMATION CUSTOMER TRANSMITS OR RECEIVES USING ANY SERVICES.
ARTICLE 9 —INDEMNIFICATION FOR THIRD PARTY CLAIMS
9.1 Indemnification by Customer. Customer shall indemnify, defend and hold Provider and its members, managers, officers, agents and employees (collectively, the "Provider Indemnified Parties") harmless from and against any and all claims, lawsuits or damages asserted against the Provider Indemnified Parties by any third -party to the extent the same arise out of or are due to:
(i) Customer's negligence or willful misconduct in exercising its rights or performing its obligations under the Agreement; (ii) Customer's noncompliance with or Default under the Agreement; and/or (iii) Customer's failure to comply with applicable law in connection with its performance under the Agreement.
9.2 Indemnification by Provider. Provider shall indemnify, defend and hold Customer and its members, managers, officers, agents and employees (collectively, the "Customer Indemnified Parties") harmless from and against any and all claims, lawsuits or damages asserted against the Customer Indemnified Parties by any third -party to the extent the same arise out of or are due to: (i) Provider's negligence or willful misconduct in exercising its rights and performing its obligations under the Agreement; (ii) Provider's noncompliance with or Default under the Agreement; and/or (iii) Provider's failure to comply with applicable law in connection with its performance under the Agreement.
9.3 Indemnification Procedures forThird-Partv Claims. Should any third -party claim arise under this Article 9, the indemnified Party shall promptly notify the indemnifying Party of same in writing, and shall take such action as may be necessary to avoid default or other adverse consequences in connection with such claim. The indemnifying Party shall have the right to select counsel and to control the defense and settlement of such claim; provided, however, that the indemnified Party shall be entitled to participate in the defense of such claim and to employ counsel at its own expense to assist in handling the claim, and provided further, that the indemnifying party shall not take any action in defense or settlement of the claim that would negatively impact the indemnified Party without the consent of the indemnified Party. The indemnified Party shall reasonably cooperate with the indemnifying Party in the defense of the third -party claim, including making its files and personnel reasonably available to the indemnifying Party, all at the cost and expense of the indemnifying Party.
ARTICLE 10 — FORCE MAJEURE EVENTS
Neither Party shall be liable for any delay in or failure of performance hereunder (other than Customer's payment obligations under Article 4) due to causes beyond such Party's reasonable control including, but not limited to, acts of God, fire, flood, earthquake, ice storms, wind storms, or other sever weather events, explosion, vandalism, cable cut, terrorist acts, insurrection, riots or other civil unrest, national or regional emergency, unavailability of rights -of -way, a governmental authority's failure to timely act, inability to obtain equipment, material or other supplies due to strike, lockout or work stoppage, or any law, order, regulation, direction, action or request of any civil or military governmental authority (each, a "Force Majeure Event"). If any Force Majeure Event causes an increase in the time required for performance of any of its duties or obligations, the affected Party shall be entitled to an equitable extension of time for completion. If the delay in performance caused by the Force Majeure Event exceeds thirty (30) days, either Party may terminate the Agreement or the applicable Service Order(s) immediately on MASTER SERVICES AGREEMENT FOR ENTERPRISE SERVICES —GOVERNMENTAL CUSTOMER pg. 6 Astound Business Solutions, LLC / City of Santa Maria 07/19/2022
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written notice to the other Party, without incurring any liability in connection with such termination.
ARTICLE 11— DISPUTE RESOLUTION
11.1 Good Faith Negotiations. Except for actions seeking a temporary restraining order or injunction, in the event any controversy, disagreement or dispute (each, a "Dispute") arises between the Parties in connection with this Agreement, the Parties shall use good faith efforts to resolve the Dispute through negotiation. In the event of a Dispute, either Party may give the other Party written notice of the Dispute (each, a "Dispute Notice"). The parties will meet and attempt to resolve the Dispute within sixty (60) days of the date on which the Dispute Notice is delivered. All discussions occurring and documents exchanged during negotiations under this Section are confidential and inadmissible for any purpose in any legal proceeding involving the Parties; provided that evidence that is otherwise admissible or discoverable shall not be rendered inadmissible or non -discoverable as a result of its use in the negotiation process. If the Parties do not resolve the Dispute within the sixty (60) day period, either of the Parties may pursue any remedy available to it under this Agreement, at law or in equity.
11.2 Governing Law. This Agreement and all matters arising out of this Agreement shall be governed by the laws of the State of California. Any judicial action arising in connection with this Agreement shall be in the Superior Court of the State of California in and for Santa Barbara County, or in the Federal District Court for the Central District of California, as applicable.
ARTICLE 12 — ASSIGNMENT AND ASSUMPTION
Except as otherwise provided in this Article 12, neither Party shall assign, delegate or otherwise transfer the Agreement or its obligations under the Agreement, in whole or in part, without the prior written consent of the other Party. Notwithstanding the foregoing, either Party may, without the necessity of obtaining the other Party's consent, assign its interest in and to the Agreement to: (i) any entity acquiring such Party, whether by merger or through purchase of substantially all the assets of such Party; (ii) a lender as an asset securing indebtedness; or (iii) an Affiliate of such party; provided, that in the event of a transfer to an Affiliate, the transferring Party shall continue to remain liable for the obligations under the Agreement.
ARTICLE 13 — NOTICES
Unless otherwise provided elsewhere in the Agreement, any notice to be given to either Party under the Agreement will be in writing and directed to the addresses set forth below. Notices will be deemed received (i) the next business day, when sent by reliable, commercial overnight courier; (ii) three (3) business days after being sent by certified mail, postage prepaid and return receipt requested; (iii) when actually received, if sent by email during the business hours of 9:00 a.m. to 5:00 p.m. (recipient's time). Notices received after 5:00 p.m. (recipient's time) will be effective the next business day.
If to Provider:
Astound Business Solutions, LLC
650 College Road East, Suite 3100
Princeton, NJ 08540
ATTN: Business Solutions
With a Copy to:
Astound Business Solutions, LLC
650 College Road East, Suite 3100
Princeton, NJ 08540
ATTN: Legal Department
If to Customer:
City of Santa Maria
110 E Cook Street
Santa Maria, CA 93454
ATTN: Information Technology Division
With a Copy to:
City of Santa Maria
204 E Cook Street
Santa Maria, CA 93454
ATTN: City Attorney Office
Either Party may change its notice address by giving notice to the other Party in accordance with this Article.
ARTICLE 14 — REPRESENTATIONS AND COVENANTS
Each Party represents and covenants to the other as follows: (i) the execution and delivery of the Agreement and the performance of its obligations hereunder have been duly authorized; (ii) the Agreement is a valid and legal agreement binding MASTER SERVICES AGREEMENT FOR ENTERPRISE SERVICES — GOVERNMENTAL CUSTOMER pg. 7 Astound Business Solutions, LLC / City of Santa Maria 07/19/2022
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on such parties and enforceable in accordance with its terms; (iii) to the best of its knowledge and belief, it is in material compliance with all laws, rules and regulations and court and governmental orders related to the operation of its business; and (iv) it shall comply with all applicable laws and regulations when exercising its rights and performing its obligations under the Agreement.
ARTICLE 15 — MISCELLANEOUS
15.1 Entire Agreement; Interpretation. The Agreement constitutes the entire agreement between the Parties regarding the subject matter hereof, and supersedes any and all prior oral or written agreements between the Parties regarding the subject matter contained herein. The Agreement may only be modified or supplemented by an instrument executed by an authorized representative of each Party. The Agreement and each of the terms and provisions of it are deemed to have been explicitly negotiated by the Parties, and the language in all parts of the Agreement shall, in all cases, be construed according to its fair meaning and not strictly for or against either of the Parties. If any provision of the Agreement or the application thereof to any person or circumstance shall, for any reason and to any extent, be found invalid or unenforceable, the remainder of the Agreement and the application of that provision to other persons or circumstances shall not be affected thereby, but shall instead continue in full force and effect.
15.2 No Waiver. No failure by either Party to enforce any rights hereunder will constitute a waiver of such rights. Nor shall a waiver by either Party of any particular breach or default constitute a waiver of any other breach or default or any similar future breach or default. Provider's acceptance of any payment under the Agreement will not constitute an accord or any other form of acknowledgement or satisfaction that the amount paid is in fact the correct amount, and acceptance of a payment will not release any claim by Provider for additional amounts due from Customer.
15.3 Relationship; No Third Party Beneficiaries. The Agreement is a commercial contract between Provider and Customer and the relationship between the Parties is that of independent contractors. Nothing in the Agreement creates any partnership, principal- agent, employer -employee or joint venture relationship between the Parties or any of their Affiliates, agents or employees for any purpose. The Agreement is for the sole benefit of Provider and Customer and is not intended to confer any rights on any other person; there are no third party beneficiaries of the Agreement.
15.4 Exhibits. The following Exhibits, which are attached to this MSA, are incorporated herein and by this reference made a part of this MSA:
EXHIBIT A
EXHIBIT B
EXHIBIT C
EXHIBIT D
- Service Level Agreement for Lit Fiber Services
- Service Level Agreement for Dark Fiber & Wavelength Services - Acceptable Use Policy for Commercial Services
Service -Specific Terms and Conditions
15.5 Computation of Time. Except where expressly provided to the contrary, as used in the Agreement, the word "day" shall mean "calendar day," and the computation of time shall include all Saturdays, Sundays and holidays for purposes of determining time periods specified in the Agreement. If the final date of any period of time set out in any provision of the Agreement falls upon a Saturday or a Sunday or a legal holiday, then in such event, the time of such period shall be extended to the next day that is not a Saturday, Sunday or legal holiday. As used in the Agreement, the term "business day" shall mean a day that is not a Saturday, Sunday or a legal holiday.
15.6 Counterparts; Electronic Signatures. This MSA and any Service Order entered into by the Parties pursuant to this MSA may be executed in multiple counterparts, each of which shall constitute an original, -and all of which shall constitute one and the same instrument. Any executed documents sent to the other Party in portable document format (pdf) images via email will be considered the same as an original document. The Parties consent to the use of electronic signatures. [Signatures on following page.]
MASTER SERVICES AGREEMENT FOR ENTERPRISE SERVICES — GOVERNMENTAL CUSTOMER pg. 8 Astound Business Solutions, LLC / City of Santa Maria 07/19/2022
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The Parties are signing this MSA as of the Effective Date set forth in the preamble above.
CUSTOMER: PROVIDER:
City of Santa Maria, a California
municipal corporation
Astound Business Solutions, LLC, a Delaware
limited liability company
CDoeuSipnetl by:
By C 41 (Alta/L.
4CEFCD59936046C...
Name: Jeffrey M. Marecic Name: David Lampki n
Title: Chief Information Officer Title: VP Business Solutions [The remainder of this page is intentionally left blank.) MASTER SERVICES AGREEMENT FOR ENTERPRISE SERVICES — GOVERNMENTAL CUSTOMER pg. 9 Astound Business Solutions, LLC / City of Santa Maria 07/19/2022
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EXHIBIT A
to
Master Services Agreement for Enterprise Services
Service Level Agreement for Lit Fiber Services
This Service Level Agreement for Lit Fiber Services (this "SLA") is a part of the Master Services Agreement for Enterprise Services — Governmental Customer ("MSA") between Astound Business Solutions, LLC ("Astound") and Customer. Unless otherwise provided in the applicable Service Order, this SLA applies to the following types of lit fiber Services provided by Astound pursuant to the MSA: (a) dedicated Internet access services, (b) Ethernet transport services, and (c) voice services, including hosted voice.
1. AVAILABILITY SLA
Astound's Network is designed to provide a target Availability of at least 99.99% per month. If the Availability target is not achieved in a given calendar month, Customer shall be entitled to the remedies set forth in the table below, which must be claimed as described in this SLA.
Target Availability
Duration of Service Outage
Customer Credit as % of MRC for
the applicable Circuit
99.99% Availability
Less than 4 minutes 20 seconds
Target Met
4 min. 20 sec. up to 2 hours
5%
> 2 hour up to 6 hours
10%
> 6 hours up to 12 hours
20%
> 12 hours up to 24 hours
35%
> 24 hours
50%
`Customer credits for Unavailability are calculated on an individual circuit basis, and the amount of any credit is based on the portion of MRC allocable to the affected circuit.
2. MEAN TIME TO RESTORE ("MTTR") SLA
In the event of Outages in Services due to failure or malfunction of the Astound Network or Astound Equipment, Astound's CNOC is designed to provide a MTTR of 6 hours or less. If the target MTTR is not met for a particular circuit in a given calendar month, and Customer receives a Service from Astound on the circuit at issue, then Customer shall be entitled to remedies set forth in the table below, which must be claimed as described in this SLA.
Target MTTR
Actual MTTR
Customer Credit
as % of MRC for the
applicable Circuit
6 hr MTTR
5 6 Hrs.
Target Met
> 6 Hrs. to 10 Hrs.
5%
> 10 Hrs. to 18 Hrs.
10%
>18 Hrs.
20%
3. PACKET DELIVERY/PACKET LOSS SLA
The Astound Network is designed to provide no greater than 0.1% Packet Loss. If the Packet Loss target is not achieved in a given calendar month, Customer shall be entitled to the remedies set forth in the table below, which must be claimed as described in this SLA. Customer credits for average monthly Packet Loss are calculated on an individual circuit basis, and the amount of any credit is based on the portion of MRC allocable to the affected circuit.
EXHIBIT A: SERVICE LEVEL AGREEMENT FOR LIT FIBER SERVICES Astound Business Solutions, LLC / City of Santa Maria 07/19/2022 pg. 10
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Target Maximum
Packet Loss
Actual Packet Loss
(lower end — upper end)
Customer Credit
as % of MRC for the
applicable Circuit
5 0.1% Packet Loss
0% - 0.1%
Target Met
> 0.1% - 0.4%
5%
> 0.4% - 0.7%
10%
> 0.7% - 1.0%
25%
> 1.0%
50%
4. LATENCY SLA
The Astound Network is designed to provide a monthly average one-way Latency not to exceed the following:
• For "Local Market" distances of 5 75 miles = 10 ms
• For "Inter -Market" distances of between 76 — 750 miles = 20 ms • For "Long -Haul" distances of > 750 miles = 50 ms
If the applicable Latency target is not achieved in a given month and Astound does not remedy the problem within fifteen (15) calendar days from the date on which Customer opens a Trouble Ticket with the Astound CNOC regarding excessive Latency, Customer shall be entitled to the remedies set forth in the table below, which must be claimed as described in this SLA.
Target
Local Market
Latency
Target
Inter -Market
Latency
Target
Long -Haul
Latency
Actual One -Way
Latency
(lower end - upper end)
Customer Credit
as % of MRC for
the applicable
Circuit
10 ms or less
20 ms or less
SO ms or less
5 Target Latency
Target Met
> Target up to 8 ms over Target
5%
> 8 ms up to 15 ms over Target
10%
> 15 ms up to 20 ms over Target
25%
> 20 ms over Target
50%
5. NETWORK JITTER SLA
The Astound Backbone Network is designed to have a monthly average one-way Network Jitter not to exceed the following:
• For Local Market distances of 750 miles = 15 ms
If the applicable Network Jitter target is exceeded in a given calendar month, Customer will be entitled to a credit of 1/30th of the MRC of the affected circuit for that month for each full lms of Network Jitter above the Network Jitter target set forth above. Any such credit must be claimed as described in this SLA.
6. CHRONIC OUTAGE
If Customer experiences a Chronic Outage with respect to a Service, Customer shall have the right to elect either of the following .remedies, which must be claimed as described in this SLA: (i) substitute a different Service or a different circuit/path for the Service and circuit/path that experienced the Chronic Outage without incurring any Termination Charge or installation fees; or (ii) terminate the affected Service for the circuit/path that experienced the Chronic Outage without incurring any Termination Charge.
7. DEFINITIONS
For purposes of this SLA the following terms shall have the meanings set forth below.
EXHIBIT A: SERVICE LEVEL AGREEMENT FOR LIT FIBER SERVICES pg. 11 Astound Business Solutions, LLC / City of Santa Maria 07/19/2022
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"Astound Backbone Network" means Astound's core fiber backbone that connects Astound's POPs and regional hubs. "Astound's Commercial Network Operations Center" or "Astound's CNOC" means Astound's commercial network operations center, which is staffed 24x7x365.
"Astound Network" means all equipment, facilities and infrastructure that Astound uses to provide Services to Customer, and includes Customer's access port. The "Astound Network" does not include Customer owned or leased equipment (unless leased from Astound), or any portion of Customer's local area network after the demarcation point for the Services provided by Astound. "Availability" means the ability of Customer to exchange Ethernet packets with the Astound Network via Customer's router port.
Availability is measured in minutes of uptime over the calendar month during which the Services are Available:
%Availability =
(Total Minutes in Month —Total Minutes of Unavailability in Month) (per calendar month) Total Minutes in Month
For Ethernet Transport Services and VoIP Services, Availability is calculated at the individual circuit level, between Astound's Backbone Network and the Customer's router port. For Dedicated Internet Access Services, Availability is calculated from the Customer's router port through the Astound Network to the handoff point for the Internet. Dedicated Internet Access Service Availability does not include the availability of the Internet itself or any particular Internet resource. Periods of Excused Outage are not included in Availability metrics.
"Chronic Outage" means a series of three (3) or more Service Outages affecting the same Service on the same circuit during a given calendar month, each of which has an actual time to restore "TTR" in excess of Astound's targeted MTTR. "Emergency Maintenance" means Astound's efforts to correct conditions on the Astound Network that are likely to cause a material disruption to or outage in services provided by Astound and which require immediate action. Emergency Maintenance may degrade the quality of the Services provided to Customer, including possible outages. Any such outages are Excused Outages that will not entitle Customer to credits under this SLA. Astound may undertake Emergency Maintenance at any time Astound deems necessary and will provide Customer with notice of such Emergency Maintenance as soon as commercially practicable under the circumstances.
"Excused Outage" means any disruption to or unavailability of Services caused by or due to (i) Scheduled Maintenance, (ii) Emergency Maintenance, or (iii) circumstances beyond Astound's reasonable control, such as, by way of example only, Force Majeure Events, acts or omissions of Customer or Customer's agents, licensees or end users, electrical outages not caused by Astound, or any failure, unavailability, interruption or delay of third -party telecommunications network components the use of which are reasonably necessary for Astound's delivery of the Services to Customer. "Jitter" or "Network Jitter" refers to a variation in the interval at which packets are received, also described as the variability in Latency as measured in the variability over time of the packet Latency across a network. Jitter is calculated as an aggregate average monthly metric measured by Astound across the Astound Backbone Network between a sample of Astound POPs. Local access loops are not included. Periods of Excused Outage are not included in Jitter metrics. "Latency" means how much time it takes, measured in milliseconds, for a packet of data to get from one designated point on Astound's Network to another designated point on Astound's Network. Latency is calculated as an aggregate average monthly metric measured by Astound across the Astound Backbone Network between a sample of Astound POPs. Local access loops are not included. Periods of Excused Outage are not included in Latency metrics. "Mean Time to Restore" or "MTTR" means the average time required to restore the Astound Network to a normally operating state in the event of an Outage. MTTR is calculated on a circuit basis, as a monthly average of the time it takes Astound to repair all Service Outages on the specific circuit. MTTR is measured from the time an Outage related Trouble Ticket is generated by the Astound CNOC until the time the Service is again Available. The cumulative length of Service Outages per circuit is divided by the EXHIBIT A: SERVICE LEVEL AGREEMENT FOR LIT FIBER SERVICES pg. 12 Astound Business Solutions, LLC/ City of Santa Maria 07/19/2022
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number of Trouble Tickets in the billing month to derive the monthly MTTR per circuit:
MTTR in Hrs = Cumulative Length of Service Outages Per Month Per Circuit (per calendar month) Total Number of Trouble Tickets for Service Outages Per Month Per Circuit Periods of Excused Outage are not included in MTTR metrics. "Outage" means a disruption in the Service making the Service completely unavailable to Customer that is not an Excused Outage.
For purposes of SLA-related credits and remedies, the period of unavailability begins when an Outage -related Trouble Ticket is opened by the Customer and ends when the connection is restored, as measured by Astound. Unavailability does not include periods of Service degradation, such as slow data transmission. "Packet Loss" means the unintentional discarding of data packets in a network when a device (e.g., switch, router, etc.) is overloaded and cannot accept any incoming data. Packet Loss is calculated as aggregate average monthly metric measured by Astound across the Astound Backbone Network between a sample of Astound POPs. Local access loops are not included. Periods of Excused Outage are not included in Packet Loss metrics. "Scheduled Maintenance" means any maintenance of the portion of the Astound Network to which Customer's router is connected that is performed during a standard maintenance window (1:OOAM— 6:OOAM Local Time). Customer will be notified via email at least forty-eight (48) hours in advance of any scheduled maintenance that is likely to affect Customer's Service. "Trouble Ticket" means a trouble ticket generated through the Astound CNOC upon notification of a Service -related problem.
Trouble Tickets may be generated by Astound pursuant to its internal network monitoring process, or by Customer's reporting of a problem to the Astound CNOC. In order for Customer to be eligible for credits or remedies under this SLA, Customer must contact the Astound CNOC and open a Trouble Ticket regarding the problem; Trouble Tickets generated internally by Astound will not provide a basis for Customer credits or Chronic Outage remedies.
8. CLAIMING CREDITS AND REMEDIES
8.1 Requesting SLA Related Credits and Chronic Outage Remedies. To be eligible for any SLA-related Service credit or Chronic Outage remedy, Customer must be current in its financial obligations to Astound. Credits are exclusive of any applicable taxes charged to Customer or collected by Astound.
(i)
To claim SLA-related Service credits, Customer must do the following:
(a) Open a Trouble Ticket with the Astound CNOC within twenty-four (24) hours of the occurrence giving rise to the claimed credit(s);
(b) Submit a written request for the credit(s) to Customer's account manager within fifteen (15) days after the end of the calendar month in which the incident giving rise to the credit(s) occurred; and
(c) Provide the following documentation when requesting the credit(s):
• Customer name and contact information;
• Trouble Ticket number(s);
• Date and beginning/end time of the claimed Outage or failed SLA metric; • Circuit IDs for each pertinent circuit/path; and
• Brief description of the characteristics of the claimed Outage or failed SLA metric. (11) To claim remedies for a Chronic Outage under this SLA, Customer must do the following:
(a) Open a Trouble Ticket regarding the Chronic Outage with the Astound CNOC within seventy- two (72) hours of the last Outage giving rise to the claimed remedy; (b) Submit a written request for a remedy regarding the Chronic Outage to Customer's account EXHIBIT A: SERVICE LEVEL AGREEMENT FOR LIT FIBER SERVICES pg. 13 Astound Business Solutions, LLC / City of Santa Maria 07/19/2022
DocuSign Envelope ID: 3CBF4C89-DA7A-427D-A1 FB-A7FA652BFE89 Astound
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manager within thirty (30) days of the end of the calendar month in which the Chronic Outage occurred; and
(c) Provide the following documentation when requesting the remedy:
• Customer name and contact information;
• Type of remedy requested (e.g., substitution or termination); • Trouble Ticket numbers for each individual Outage event; • Date and beginning/end time of each of the claimed Outages; • Trouble Ticket number for the Chronic Outage at issue; • Circuit IDs for each pertinent circuit/path; and
• Brief description of the characteristics of the claimed Chronic Outage.
If Customer fails to timely submit, pursuant to the procedure described in this Section, a request for any SLA-related credit or Service Outage remedy for which Customer might otherwise be eligible under this SLA, Customer shall be deemed to have waived its right to receive such credit or remedy. The credits and remedies provided by this SLA are Customer's sole and exclusive remedies for any and all claims or complaints regarding the quality and/or availability of any of the Services to which this SLA applies.
8.2 Astound's Evaluation of Claims. All claims for SLA-related credits and remedies for Chronic Outages are subject to evaluation and verification by Astound. Upon receiving a claim for SLA-related credit and/or remedies for Chronic Outage, Astound will evaluate the claim and respond to Customer within thirty (30) days. If Astound requires additional information in order to evaluate Customer's claim, Astound will notify Customer by email specifying what additional information is required.
Customer will have fifteen (15) days from the date on which it receives Astound's request for additional information in which to provide the requested information to Astound. If Customer fails to provide the additional information within that time period, Customer will be deemed to have abandoned its claim. Astound will promptly notify Customer of Astound's resolution of each Customer claim. If Customer's claim for an SLA-related credit or Chronic Outage remedy is rejected, the notification will specify the basis for the rejection. If Customer's claim for a credit is approved, Astound will issue the credit to Customer's account, to appear on the next monthly invoice. If Customer's claim for a Chronic Outage remedy is approved, Astound will notify Customer of the date on which the requested substitution or termination will occur. Astound's determination regarding whether or not an SLA has been violated shall be final.
8.3 Limitations and Exclusions. Total credits for any given calendar month shall not exceed 100% of the MRC for the affected Service. Credits shall not be cumulative with respect to any given incident; instead, if multiple SLAs are violated during a single incident, Customer shall be entitled only to the largest applicable credit amount. This SLA will not apply and Customer will not be entitled to any credit under this SLA for any impairment of Services that is caused by or due to any of the following: (i) the acts or omissions of Customer, its agents, employees, contractors, or Customer's end users, or other persons authorized by Customer to access, use or modify the Services or the equipment used to provide the Services, including Customer's use of the Service in an unauthorized or unlawful manner; (ii) the failure of or refusal by Customer to reasonably cooperate with Astound in diagnosing and troubleshooting problems with the Services; (iii) scheduled Service alteration, maintenance or implementation; (iv) the failure or malfunction of network equipment or facilities not owned or controlled by Astound or Astound's Affiliates; (v) Force Majeure Events; (vi) Astound's inability (due to no fault of Astound) to access facilities or equipment as reasonably required to troubleshoot, repair, restore or prevent degradation of the Service; (vii) Astound's termination of the Service for cause, or as otherwise authorized by the Agreement; or (viii) Astound's inability to deliver Service by Customer's desired due date. [The remainder of this page is intentionally left blank.] EXHIBIT A: SERVICE LEVEL AGREEMENT FOR LIT FIBER SERVICES pg. 14 Astound Business Solutions, LLC / City of Santa Maria 07/19/2022
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EXHIBIT B
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Master Services Agreement for Enterprise Services
Service Level Agreement for Dark Fiber & Wavelength Services This Service Level Agreement for Dark Fiber & Wavelength Services (this "SLA") is a part of the Master Services Agreement for Enterprise Services — Governmental Customer ("MSA") between Astound Business Solutions, LLC ("Astound") and Customer.
Unless otherwise provided in the applicable Service Order, this SLA applies to the following types of Services provided by Astound pursuant to the MSA: (1) dark fiber services, and (ii) wavelength services.
1. AVAILABILITY SLA
Astound's dark fiber paths and wavelengths are designed to provide a target Availability of at least 99.9% per calendar month. If the Availability target is not met with respect to a given dark fiber path or wavelength in a given calendar month, Customer will be entitled to a credit in the amount set forth below, which must be claimed as described in this SIA. Customer credits for Outages of dark fiber or wavelength Services are calculated on an individual path basis, and the amount of any credit is based on the portion of MRC allocable to the affected Service.
Duration of Unavailability
Customer Credit
as % of MRC for the
applicable Service
Less than 45 minutes
Target Met
45 Min. up to 8 hours
5%
> 8 hours up to 16 hours
10%
> 16 hours up to 24 hours
20%
> 24 hours
35%
2. MEAN TIME TO RESTORE ("MTTR") SIA
In the event of Outages in the Services, Astound's CNOC is designed to provide a MTTR of no greater than 6 hours. If the target MTTR is not met for a particular dark fiber path or wavelength in a given calendar month, and Customer receives a Service from Astound on the path at issue, then Customer shall be entitled to remedies set forth in the table below, which must be claimed as described in this SLA.
Target MTTR
Actual MTTR
Customer Credit
as % of MRC for the
applicable Service
6 hr MTTR
5 6 Hrs.
Target Met
> 6 Hrs. to 10 Hrs.
S%
> 10 Hrs. to 18 Hrs.
10%
> 18 Hrs.
20%
3. CHRONIC OUTAGE
If Customer experiences a Chronic Outage with respect to a Service, Customer shall have the right to elect either of the following remedies, which must be claimed as described in this SLA: (1) substitute a different Service or a different path for the Service that experienced the Chronic Outage without incurring any Termination Charge or installation fees; or (ii) terminate the affected Service for the path that experienced the Chronic Outage without incurring any Termination Charge.
EXHIBIT C: PROVIDER'S ACCEPTABLE USE POLICY FOR COMMERCIAL SERVICES Wave Business Solutions, LLC 7/19/2022
pg. 15
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4. DEFINITIONS
For purposes of this SLA the following terms shall have the meanings set forth below. "Astound's Commercial Network Operations Center" or "Astound's CNOC" means Astound's commercial network operations center, which is staffed 24x7x365.
"Astound Network" means all equipment, facilities and infrastructure that Astound uses to provide Services to Customer, and includes Customer's access port. The "Astound Network" does not include Customer owned or leased equipment (unless leased from Astound), or any portion of Customer's local area network after the demarcation point for the Services provided by Astound. "Availability" means the dark fibers or the wavelength at issue is available to and accessible by Customer at the specified locations, is capable of transmitting signals and can otherwise be used by Customer. Availability does not involve the quality of data transmission. Periods of Excused Outage are not included in the Availability metric. Astound does not monitor the use or availability of dark fiber or wavelength Services, thus any Outage must be reported to Astound by Customer. "Chronic Outage" means a series of three (3) or more Service Outages affecting the same Service on the path during a given calendar month, each of which has an actual time to restore "TTR" in excess of Astound's targeted MTTR. "Emergency Maintenance" means Astound's efforts to correct conditions on the Astound Network that are likely to cause a material disruption to or outage in Services provided by Astound and which require immediate action. Emergency Maintenance may degrade the quality of the Services provided to Customer, including possible outages. Any such outages are Excused Outages that will not entitle Customer to credits under this SLA. Astound may undertake Emergency Maintenance at any time Astound deems necessary and will provide Customer with notice of such Emergency Maintenance as soon as commercially practicable under the circumstances.
"Excused Outage" means any disruption to or unavailability of Services caused by or due to (i) Scheduled Maintenance, (ii) Emergency Maintenance, or (iii) circumstances beyond Astound's reasonable control, such as, by way of example only, Force Majeure Events, acts or omissions of Customer or Customer's agents, licensees or end users, electrical outages not caused by Astound, or any failure, unavailability, interruption or delay of third -party telecommunications network components the use of which are reasonably necessary for Astound's delivery of the Services to Customer. "Mean Time to Restore" or "MTTR" means the average time required to restore the Service(s) to a normally operating state in the event of an Outage. MTTR is calculated on a path/route basis, as a monthly average of the time it takes Astound to repair all Service Outages on the specific path/route. MTTR is measured from the time Customer opens an Outage related Trouble Ticket is with the Astound CNOC until the time the Service is again Available. The cumulative length of Service Outages per circuit is divided by the number of Trouble Tickets in the billing month to derive the monthly MTTR per circuit:
MTTR in Hrs =
Cumulative Length of Service Outages Per Month Per Circuit (per calendar month) Total Number of Trouble Tickets for Service Outages Per Month Per Circuit Periods of Excused Outage are not included in MTTR metrics. "Outage" means a disruption in the Service making the Service completely unavailable to Customer that is not an Excused. Outage.
For purposes of SLA-related credits and remedies, the period of unavailability begins when an Outage -related Trouble Ticket is opened by the Customer and ends when the connection is restored, as measured by Astound. Unavailability does not include periods of Service degradation, such as slow data transmission. "Scheduled Maintenance" means any maintenance of the portion of the Astound Network to which Customer's demarc is connected that is performed during a standard maintenance window (1:OOAM — 6:OOAM Local Time). Customer will be notified EXHIBIT C: PROVIDER'S ACCEPTABLE USE POLICY FOR COMMERCIAL SERVICES pg. 16 Wave Business Solutions, LLC 7/19/2022
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via email at least forty-eight (48) hours in advance of any scheduled maintenance that is likely to affect Customer's Service. "Trouble Ticket" means a trouble ticket generated through the Astound CNOC upon notification of a Service -related problem. In order for Customer to be eligible for credits or remedies under this SLA, Customer must contact the Astound CNOC and open a Trouble Ticket regarding the problem.
5. CLAIMING CREDITS AND REMEDIES
5.1 Requesting SLA Related Credits and Chronic Outage Remedies. To be eligible for any SLA-related Service credit or Chronic Outage remedy, Customer must be current in its financial obligations to Astound. Credits are exclusive of any applicable taxes charged to Customer or collected by Astound.
(i) To claim SLA-related Service credits, Customer must do the following:
(a) Open a Trouble Ticket with the Astound CNOC within twenty-four (24) hours of the occurrence giving rise to the claimed credit(s);
(b) Submit a written request for the credit(s) to Customer's account manager within fifteen (15) days after the end of the calendar month in which the incident giving rise to the credit(s) occurred; and
(c) Provide the following documentation when requesting the credit(s):
• Customer name and contact information;
• Trouble Ticket number(s);
• Date and beginning/end time of the claimed Outage or failed SLA metric; • Circuit IDs for each pertinent circuit/path; and
• Brief description of the characteristics of the claimed Outage or failed SLA metric. (ii) To claim remedies for a Chronic Outage under this SLA, Customer must do the following:
(a) Open a Trouble Ticket regarding the Chronic Outage with the Astound CNOC within seventy- two (72) hours of the last Outage giving rise to the claimed remedy; (b) Submit a written request for a remedy regarding the Chronic Outage to Customer's account manager within thirty (30) days of the end of the calendar month in which the Chronic Outage occurred; and
(c) Provide the following documentation when requesting the remedy:
• Customer name and contact information;
• Type of remedy requested (e.g., substitution or termination); • Trouble Ticket numbers for each individual Outage event; • Date and beginning/end time of each of the claimed Outages; • Trouble Ticket number for the Chronic Outage at issue; • Circuit IDs for each pertinent circuit/path; and
• Brief description of the characteristics of the claimed Chronic Outage.
If Customer fails to timely submit, pursuant to the procedure described in this Section, a request for any SLA-related credit or Service Outage remedy for which Customer might otherwise be eligible under this SLA, Customer shall be deemed to have waived its right to receive such credit or remedy. The credits and remedies provided by this SLA are Customer's sole and exclusive remedies for any and all claims or complaints regarding the quality and/or availability of any of the Services to which this SLA applies.
5.2 Astound's Evaluation of Claims. All claims for SLA-related credits and remedies for Chronic Outages are subject to evaluation and verification by Astound. Upon receiving a claim for SLA-related credit and/or remedies for Chronic Outage, Astound will evaluate the claim and respond to Customer within thirty (30) days. If Astound requires additional information in EXHIBIT C: PROVIDER'S ACCEPTABLE USE POLICY FOR COMMERCIAL SERVICES pg. 17 Wave Business Solutions, LLC 7/19/2022
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order to evaluate Customer's claim, Astound will notify Customer by email specifying what additional information is required.
Customer will have fifteen (15) days from the date on which it receives Astound's request for additional information in which to provide the requested information to Astound. If Customer fails to provide the additional information within that time period, Customer will be deemed to have abandoned its claim. Astound will promptly notify Customer of Astound's resolution of each Customer claim. If Customer's claim for an SLA-related credit or Chronic Outage remedy is rejected, the notification will specify the basis for the rejection. If Customer's claim for a credit is approved, Astound will issue the credit to Customer's account, to appear on the next monthly invoice. If Customer's claim for a Chronic Outage remedy is approved, Astound will notify Customer of the date on which the requested substitution or termination will occur. Astound's determination regarding whether or not an SLA has been violated shall be final.
5.3 Limitations and Exclusions. Total credits for any given calendar month shall not exceed 100% of the MRC for the affected Service. Credits shall not be cumulative with respect to any given incident; instead, if multiple SLAs are violated during a single incident, Customer shall be entitled only to the largest applicable credit amount. This SLA will not apply and Customer will not be entitled to any credit under this SLA for any impairment of Services that is caused by or due to any of the following: (i) the acts or omissions of Customer, its agents, employees, contractors, or Customer's end users, or other persons authorized by Customer to access, use or modify the Services or the equipment used to provide the Services, including Customer's use of the Service in an unauthorized or unlawful manner; (ii) the failure of or refusal by Customer to reasonably cooperate with Astound in diagnosing and troubleshooting problems with the Services; (iii) scheduled Service alteration, maintenance or implementation; (iv) the failure or malfunction of network equipment or facilities not owned or controlled by Astound or Astound's Affiliates; (v) Force Majeure Events; (vi) Astound's inability (due to no fault of Astound) to access facilities or equipment as reasonably required to troubleshoot, repair, restore or prevent degradation of the Service; (vii) Astound's termination of the Service for cause, or as otherwise authorized by the Agreement; or (viii) Astound's inability to deliver Service by Customer's desired due date. [The remainder of this page is intentionally left blank.] EXHIBIT C: PROVIDER'S ACCEPTABLE USE POLICY FOR COMMERCIAL SERVICES pg. 18 Wave Business Solutions, LLC 7/19/2022
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EXHIBIT C
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Master Services Agreement for Enterprise Services — Governmental Customer Provider's Acceptable Use Policy for Commercial Services Introduction.
Please read this Acceptable Use Policy for Commercial Services ("AUP") carefully. Astound Business Solutions, LLC and its affiliates (collectively, "Astound") offer a variety of communications services ("Services") to commercial and governmental customers. Affiliates of Astound Business Solutions, LLC include, but are not limited to (i) RCN Telecom Services, LLC, (ii) Grande Communications Networks, LLC, and (iii) Wave Business Solutions, LLC. Your use of Astound's Services constitutes your acceptance of and agreement to comply with the provisions of this AUP to the extent its provisions are applicable to the Services you use. You are responsible for ensuring that all users of Services comply with this AUP. This AUP applies to your use of Services in addition to and in conjunction with the provisions of any Master Services Agreement, Service Order, Standard Terms and Conditions for Enterprise Services, Small Business Services Subscriber Agreement, IRU Agreement, Standard Terms and Conditions for Commercial Bulk Video Services or other contract documents you have entered into with Astound (collectively, your
"Contract"). To the extent the provisions of this AUP conflict with any provisions of your Contract, the provisions of your Contract control. Astound may modify this AUP at any time without notice. Your continued use of the Services after such modification constitutes acceptance of the modified AUP.
Potential Consequences of Violating this AUP.
https://www.astound.com/business/legal-disclosures/acceptable-use-policy/ 1/5
DocuSign Envelope ID: 3G8F4G89-DA7A-427D-A1 FB-A7FA652BFE89 Although Astound does not normally monitor, screen or otherwise access the content of data transmitted using any Service, Astound reserves the right to do so at any time for reasonable network management purposes, to identify violations of this AUP, and to cooperate with law enforcement activities.
Astound reserves the right, in its sole discretion, to (i) remove or block any traffic which Astound determines is illegal, deceptive, harmful, offensive or otherwise in violation of this AUP, and/or (ii) suspend or terminate your Services without notice and without liability to Astound if a violation of this AUP occurs through your Services. Any violation by you of this AUP grants Astound permission to take action to restrict or terminate your access to and use of Services. You agree to indemnify, defend and hold Astound and its affiliates, suppliers, and agents harmless from and against all claims and expenses (including reasonable attorneys' fees and costs) resulting from your violation of this AUP. Your indemnification obligations will survive any termination of Service. Astound's failure to enforce this AUP in any one or more instances does not constitute a waiver of Astound's right to enforce this AUP at any time in the future.
Prohibited Activities.
Prohibited uses of Services include, but are not limited to, the following:
1. Illegal or Unlawful Use. Using Services to engage in, undertake, accomplish, instigate, encourage or further any illegal or unlawful purpose or activity.
This includes any and all illegal or unlawful purposes and activities that are not expressly described elsewhere in this AUP.
2. Making Robocalls or Robotexts. Using Services to make, attempt to make, or facilitate the making of unauthorized robocalls and/or robotexts.
3. Unauthorized Hacking. Using Services to perform, attempt to perform, encourage or enable unauthorized hacking of any kind. This includes, but is not limited to: (i) breaching or circumventing the network security system of any host, network, server, database or user account, whether on Astound's https://www.astound.com/business/legal-disclosures/acceptable-use-policy/ 2/5
DocuSign Envelope ID: 3CBF4C69-DA7A-427D-A1 FB-A7FA652BFEB9 network or on another carrier's network, without permission; (ii) initiating, performing, participating in or assisting in the performance of denial of service or DDoS attacks; (iii) using or distributing tools designed to circumvent or compromise network security, such as ransomware, spyware, malware, password cracking or network probing algorithms or analyzers, encryption circumvention devices, or Trojan Horse programs.
4. Fraudulent Activity. Using Services to engage in, commit, encourage or further fraudulent activities or other deceptive practices. This includes, but is not limited to, identity theft, credit card fraud, forgery, or impersonation of any person or entity.
5. Violating Intellectual Property Rights. Using Services in a manner that violates the intellectual property rights of Astound or of any third party. This includes, but is not limited to, (i) modifying, disassembling, decompiling, preparing derivative works of, reverse engineering or otherwise attempting to gain access to the source code of any of the software components of your Services, (ii) using the software components of your Services for the development, production or marketing of a service or product substantially similar to your Services, or (iii) transmitting, reproducing, or distributing information, data, software or other material that is protected by copyright, trademark, patent, trade secret or other proprietary rights laws, rules or regulations without obtaining permission of the owner.
6. Privacy Violations. Using Services in a manner that violates the privacy of others. This includes, but is not limited to, collecting (or attempting to collect) or disseminating personal information about third parties without their consent.
7. Offensive or Objectionable Use. Using Services in a manner that a reasonable person could deem to be offensive or objectionable, regardless of whether or not the use is lawful. This includes, but is not limited to, using Services to: (i) harass, annoy, or threaten others; (ii) transmit or disseminate material which a reasonable person could deem to be objectionable, defamatory, offensive, indecent, vulgar, hateful or otherwise inappropriate; or (iii) send or collect responses from unsolicited bulk communications (e.g., https://www.astound.com/business/legal disclosures/acceptable-use-policy/ 3/5
DocuSign Envelope ID: 3C8F4C89-DA7A-427D-A1 FB-A7FA652BFE89 "spam").
8. Causing Network Performance Degradation. Using Services in a manner that causes (or is likely to cause) performance degradation of Astound's network and/or inhibits, interferes with or impedes other authorized users of Astound's network from making normal and reasonable use of their Services.
This includes, but is not limited to, the generation of excessive levels of network traffic, regardless of intent, purpose or knowledge.
9. Unauthorized Resale. Unauthorized resale of Services. Unless you are an authorized wholesale partner of Astound, Astound's commercial Services are exclusively for your internal business use and may not be re -sold or otherwise distributed outside your organization. If you desire to re -sell Astound's Services, please contact Astound's Wholesale team about becoming an authorized wholesale partner.
10. Violating Other Provider's Policies. Using Services in a manner that violates the rules, regulations, or policies established by or applicable to any non - Astound network, server, database, or website that you access using Astound's Services.
Security.
As a user of Services, it is your responsibility to secure your network from external threats such as DDoS attacks, ransomware, viruses, worms and other methods of unauthorized intrusion. In all cases, you are solely responsible for the security of any device you choose to connect to Service, including any data stored or shared on that device. You are responsible for any misuse of Services, even if the misuse was committed without your authorization. Therefore, you must take steps to ensure that others do not gain unauthorized access to Services or use Services in an unauthorized manner.
Digital Millennium Copyright Act.
Astound is committed to complying with U.S. copyright and related laws.
Astound reserves the right to terminate, in appropriate circumstances, the https://www.astound.com/business/legal-disclosures/acceptable-use-policy/ 4/5
DocuSign Envelope ID: 3C8F4C89-DATA-427D-A1 FB-A7FA652BFE89 service provided to any customer or user in accordance with the Online Copyright Infringement Liability Limitation Act of the Digital Millennium Copyright Act (17 U.S.C. § 512) ("DMCA"). Astound will terminate the subscriptions of repeat copyright infringers. Astound's copyright compliance policies do not affect any other rights Astound may have under law or contract.
For more information, please see Astound's DMCA Policy on Astound's website:
https://www.astound.com/business/legal-disclosures/dmca-policy/ https://www.astound.com/business/legal-disclosures/acceptable-use-policy/ 5/5
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EXHIBIT D
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Master Services Agreement for Enterprise Services — Governmental Customer
SERVICE -SPECIFIC TERMS AND CONDITIONS
ARTICLE 1— INTRODUCTION
Please read this Service -Specific Terms and Conditions ("Service -Specific T&Cs") carefully. Astound Business Solutions, LLC and its Affiliates (collectively, "Astound Business") offer a variety of communications services ("Services") to commercial and governmental customers. Affiliates of Astound Business Solutions, LLC include, but are not limited to (i) RCN Telecom Services, LLC, (ii) Grande Communications Networks, LLC, and (iii) Wave Business Solutions, LLC. This Service -Specific T&Cs contains provisions that apply only to specific types of Services provided by Astound Business. If you receive from Astound Business any of the types of Services described in this Service -Specific T&Cs, then the applicable provisions of this Service -Specific T&Cs apply to your Services in addition to and in conjunction with the provisions of the Standard Terms and Conditions for Enterprise Services, Master Services Agreement, Service Order, Dark Fiber Lease, IRU Agreement or other contract document(s) you have entered into with Astound Business (collectively, your "Contract"). Astound Business may modify this Service -Specific T&Cs at any time without notice. Your continued use of your Services after such modification constitutes acceptance of the modified Service -Specific T&Cs.
ARTICLE 2 — INTERNET ACCESS SERVICE PROVISIONS
If you receive Internet access Services from Astound Business, then, in addition to the other provisions of your Contract, your use of Astound Business's Internet access Services is subject to the terms and conditions of this Article 2:
2.1 End User Access. You must ensure that any persons who have access to the Services through your equipment and/or your internal network comply with the terms of this AUP and your Contract.
2.2 Acceptance of Risk. You expressly acknowledge and agree that the Internet is a shared network that is not secure and that is not controlled by Astound Business. Any content that you access through the Services is provided by independent third - party content providers, over which Astound Business does not exercise control. Astound Business does not preview, exercise editorial control over, or endorse any opinions or information accessed through the Services. You expressly understand and agree that it is possible data or files you send or receive over the Internet will be monitored by third -parties and/or subject to unauthorized access by third -parties. Third -parties may gain access to your data, including confidential information. Data or files transmitted over the Internet may contain computer viruses or other harmful components. Astound Business has no responsibility and assumes no liability for any such acts or occurrences. You expressly assume the risks inherent in connecting your internal network and your equipment to the Internet and in accessing and using the Internet through the Services.
2.3 IP Addresses. Any IP addresses provided to you by Astound Business in connection with the Services are and will remain the property of Astound Business. You will not alter, modify, sell, lease, assign, encumber or otherwise tamper with the IP addresses. Astound Business reserves the right to change addressing schemes at any time.
2.4 Business Class Internet Service. If you receive Business Class Internet ("BCI") Service from Astound Business, you expressly acknowledge and agree that BCI is an "up to" bandwidth Service, with the bandwidth specified on your Contract being the maximum possible bandwidth. You expressly understand and agree that the actual bandwidth you experience at any time will vary based on numerous factors, such as the type and configuration of your internal network equipment, the number of devices simultaneously using your BCI Service, the amount of traffic Astound Business's network is then -experiencing, and other similar factors. Additionally, you understand and agree that, while BCI Service is a fiber -based Service, Astound Business's normal SLA for lit fiber services does NOT apply to BCI Service. Instead, BCI Service is a "best effort" service for which no SLA remedies are available. While Astound Business will use commercially reasonable efforts to ensure that your BCI Service is available to you twenty-four (24) hours per day, seven (7) days per week, it is possible that there will be interruptions (e.g., outages) or periods of degradation (e.g., slow transmission) in your BCI Service. While Astound Business will use commercially reasonable efforts to correct any such interruptions or degradations in a timely manner, you expressly acknowledge and agree that neither service credits nor chronic outage remedies are available to you in connection with problems involving your BCI Service. Temporary interruptions in or degradation to your BCI Service do not constitute failures on the part of Astound Business to fulfill its obligations under your Contract.
Service -Specific Terms and Conditions pg. 1
Astound Business Solutions, LLC 11/02/2021
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2.5 Business Wi-Fi Service. If you receive business Wi-Fi Service from Astound Business in connection with your Internet access Service, you expressly acknowledge and agree that Astound Business's business Wi-Fi Service is intended to be used only by your own personnel; it is not intended to function as a guest Wi-Fi network for temporary guests of your premises such as patrons at a restaurant or patients at a medical office. As a part of the business Wi-Fi Service, Astound Business will install up to five (5) ceiling or wall mounted wireless devices within your premises. You are responsible for performing any internal wiring work needed in order for Astound Business to connect your internal network to the Wi-Fi devices. The wireless devices are and shall at all times remain Astound Equipment. Due to the nature of Wi-Fi technology, each wireless device inherently has a limited range.
Physical obstacles that may be present in your environment, such as walls, doors, cubicles and other objects may reduce that range. Accordingly, speeds are not guaranteed and the actual performance of the Wi-Fi Service that you experience may vary in different portions of your premises, as well as at different times during the day, depending on the number of devices simultaneously using your business Wi-Fi Service, the amount of data being transmitted over your network, and so forth. You expressly understand and agree that no SLA applies to the business Wi-Fi Service even if an SLA does apply to the underlying Internet access Service you receive from Astound Business. Astound Business will perform the initial configuration of your business Wi-Fi Service at the time of installation, after which you will be responsible for managing your business Wi-Fi Service just as you are responsible for managing any other aspect of your internal network. If you subsequently require assistance from Astound Business with network management activities such as resetting the password for your business Wi-Fi network, Astound Business may charge you for such assistance at Astound Business's then -standard rates for same.
2.6 DDoS Protection Service. If you receive DDoS protection Service from Astound Business in connection with your Internet access Service, you expressly agree and understand that the DDoS protection Service does not guaranty that the Internet access Service for which the DDoS protection Service is activated will never be susceptible to or negatively impacted by any distributed denial of service attack or any other type of hostile hacking activity. Instead, the DDoS protection Service constitutes only one measure of protection against such activities. Astound Business shall not be liable for any damages of any type that may be suffered by you or any of your end users due to any DDoS attacks or other hostile hacking activity experienced by the Internet access Service that the DDoS protection Service does not successfully prevent, alleviate or ameliorate.
ARTICLE 3 — BURSTABLE SERVICE PROVISIONS
If you receive burstable Internet access Services or burstable data transport Services from Astound Business, then, in addition to the other provisions of your Contract, your use of Astound Business's burstable Services is subject to the terms and conditions of this Article 3. Burstable Internet access or data transport Service allows you to increase from the selected base bandwidth up to the specified maximum burstable bandwidth on an as -needed basis when usage spikes. Charges for burstable Service will be calculated by using the industry standard 95th percentile. The 95th percentile measurement evaluates the regular and sustained use of a network connection and is measured by sampling usage at 5 minute intervals and ignoring the top 5% of usage samples taken over a month. The 95th percentile measure of peak bandwidth will then be compared to the base bandwidth and the incremental usage will be billed at the burst rate in arrears on a monthly basis. Charges for burstable Service will be measured, calculated and accrued on a monthly basis, and billed in arrears on a monthly basis.
ARTICLE 4 - SD -WAN, ADVANCED FIREWALL & ADVANCED CLOUD SECURITY SERVICE PROVISIONS If you receive SD -WAN, Advanced Firewall and/or Advanced Cloud Security Services from Astound Business, then, in addition to the other provisions of your Contract, your use of Astound Business's SD -WAN, Advanced Firewall and/or Advanced Cloud Security Services is subject to the terms and conditions of this Article 4:
4.1 Underlying Internet Connection Required. Astound Business's SD -WAN, Advanced Firewall and Advanced Cloud Security Services are cloud -hosted Services that require an underlying Internet connection in order to operate. The underlying Internet connection does not need to be provided by Astound Business; it may be provided by any Internet access provider. However, the SD -WAN, Advanced Firewall and Advanced Cloud Security Services will not function if you do not have an active connection to the Internet.
4.2 Use of Customer Information to Configure Service. In order to configure your SD -WAN, Advanced Firewall and Advanced Cloud Security Service, Astound Business must provide certain information regarding your network configuration (e.g., your company name, service site address(es), circuit IDs, etc.) to the cloud -hosted portal through which your service will be configured and managed. By ordering SD -WAN, Advanced Firewall and/or Advanced Cloud Security Service from Astound Business, you are authorizing Astound Business to use your information to establish and configure your account on the cloud -hosted portal.
Service -Specific Terms and Conditions pg. 2
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4.3 Ownership of Equipment. The hardware installed by Astound Business at your service site in connection with your SD - WAN, Advanced Firewall and/or Advanced Cloud Security Service is and shall at all times remain the personal property of Astound Business. Astound Business shall be responsible for the regular maintenance and repair of all such equipment. Should you experience problems with the equipment, you must contact Astound Business and Astound Business will use commercially reasonable efforts to repair or replace the malfunctioning equipment as soon as possible after receiving your notification. Astound Business shall have the right at any time, and from time to time, during the service term to substitute different equipment for some or all of the equipment initially installed at your service site; provided that the substituted equipment has equivalent or better functionality than the previously installed equipment. Should any equipment require repair or replacement due to your negligent or willful conduct, including the misuse or abuse of same, you shall reimburse Astound Business for the costs of such repair or replacement.
4.4 No Intellectual Property Rights. By your use of Astound Business's SD -WAN, Advanced Firewall and/or Advanced Cloud Security Services, you will not gain any rights of ownership of copyrights, patents, trade secrets, trademarks or any other intellectual property rights in or to the SD -WAN, Advanced Firewall and/or Advanced Cloud Security products, hardware, firmware, software, or the output from the online cloud -hosted portal, all of which are and shall at all times remain owned by Astound Business or its vendors and suppliers, as applicable. Astound Business or its vendors and suppliers, as applicable, will retain exclusive ownership in all deliverables created hereunder and will own all intellectual property rights, title and interest in any ideas, concepts, know how, documentation or techniques developed in connection with the SD -WAN, Advanced Firewall and/or Advanced Cloud Security Services.
4.5 No Cyber Security or Network Consulting Services. Astound Business does not provide cyber security consulting, network security consulting, network management consulting or any other similar types of professional services. You understand and agree that Astound Business has not provided you with and will not in the future provide you with any recommendations, guidance or advice regarding your use of the SD -WAN, Advanced Firewall and/or Advanced Cloud Security Services to configure, optimize, monitor and/or protect your network. Instead, you are at all times fully and solely responsible for configuring, optimizing, monitoring and protecting your network using the SD -WAN, Advanced Firewall and/or Advanced Cloud Security Services provided by Astound Business. Should you, at any time, ask Astound Business personnel to modify or alter the configuration of your SD - WAN, Advanced Firewall and/or Advanced Cloud Security Services, Astound Business personnel will not independently assess the advisability of your requested changes. Instead, Astound Business's only obligation in such situation is to make the specific modifications or alterations requested by you.
4.6 Cyber Security Disclaimer. Use of Astound Business's Advanced Firewall and/or Advanced Cloud Security Services does not guarantee that your network will never be susceptible to or negatively impacted by any cyber security threats or hostile hacking activity (e.g., viruses, malware, denial of service attacks, ransomware, cryptojacking, phishing, SQL injection, man in the middle attacks, etc.). Instead, Astound Business's Advanced Firewall and/or Advanced Cloud Security Services constitute only one measure of protection against such activities. ASTOUND BUSINESS SHALL NOT BE LIABLE FOR ANY DAMAGES OF ANY TYPE THAT
MAY BE SUFFERED BY YOU, OR ANY OF YOUR EMPLOYEES, BUSINESS PARTNERS, CUSTOMERS OR END USERS DUE TO ANY CYBER
SECURITY BREACHES OR OTHER HOSTILE HACKING ACTIVITY THAT THE ADVANCED FIREWALL AND/OR ADVANCED CLOUD SECURITY SERVICES DO NOT SUCCESSFULLY PREVENT, ALLEVIATE OR AMELIORATE.
ARTICLE 5— PHONE SERVICE PROVISIONS
If you receive phone Services (including hosted voice Services) from Astound Business, then, in addition to the other provisions of your Contract, your use of Astound Business's phone Services is subject to the terms and conditions of this Article 5:
5.1 VoIP Services. Astound Business's voice Services are provided via Internet Protocol voice network (aka "VolP"). VolP services operate using the standard commercial electrical power provided to your service site. Astound Business does not provide a back-up generator, UPS or other alternate power source for the Services; accordingly, in the event of a power outage at your service site, unless you have arranged for back-up power, the VolP Services will be unavailable until electrical service is restored.
You acknowledge and accept that the Service is not represented as fail-safe and is not designed for use in situations where error - free or uninterrupted service is essential. Astound Business will not be responsible for, and you expressly assumes all risk of, any losses or damages arising as a result of the unavailability of the Service, including the inability to reach 911 or other emergency services, or the inability to contact your security system, your fire alarm system or any remote medical monitoring service provider.
5.2 Important Notice Regarding E911 Service. Federal Communications Commission rules require providers of VolP phone services to remind customers of these important E911 facts: (a) Astound Business needs a complete and correct service site address in order to deliver accurate location information to E911; (b) If you move your VolP phone equipment to a different Service -Specific Terms and Conditions pg. 3
Astound Business Solutions, LLC 11/02/2021
DocuSign Envelope ID: 3C8F4C89-DA7A-427D-A1 FB-A7FA652BFE89 physical address, you must call Astound Business immediately to update the location information, otherwise E911 will not have your correct location information on file; (c) VolP services operate using the standard electrical power provided to the service site, so unless you have arranged for a back-up power supply, the Services will be unavailable during a power outage; (d) You may not be able to make E911 calls if there is a power outage, network outage or other technical problems, or if your phone service is terminated or suspended.
5.3 Other Providers. Unless otherwise expressly agreed to in writing, Astound Business has no obligation or responsibility to arrange for termination or removal of telecommunications services provided by long distance providers. You remain responsible for terminating and removing any such unwanted services and circuits provided by other long distance providers. You understand that you may designate only one primary interexchange carrier for any one telephone number for state -to -state (interLATA), intrastate and international usage.
5.4 Long Distance Charges. Any long distance rates listed in your Contract are the rates as of the effective date of that Contract and may not reflect the actual rates applicable at any given time during the term of the Contract. All long distance charges are exclusive of applicable taxes, and Astound Business may add or adjust rates and charges in order to recover amounts it is required or permitted by governmental or quasi -governmental authorities to collect from or pay to others in support of statutory or regulatory programs ("Governmental Charges"), plus amounts to recover reasonable administrative costs associated with such Governmental Charges.
5.5 International Calling Charges. The rates listed in your Contract do not include charges for international calls. Astound Business will pass through to you all charges for any international calls made via your phone service.
5.6 CPNI. Astound Business will have access to certain proprietary network information of yours ("CPNI"). Under federal law, you have a right to, and Astound Business has a duty to protect, the confidentiality of CPNI. CPNI may be useful to tailor services to you and to enhance Astound Business's ability to meet your needs. You expressly authorize Astound Business, its affiliates, or its sales representatives to use CPNI to determine if you could benefit from other services offered by Astound Business and its affiliates, and market them to you. You may withdraw your authorization at any time by informing Astound Business in writing.
Any such withdrawal will not affect the quality of Services provided to you.
ARTICLE 6 — HOSTED VOICE SERVICE PROVISIONS
If you receive hosted voice Services from Astound Business, then, in addition to the other provisions of your Contract and the Phone Service Provisions set forth above, your use of Astound Business's hosted voice Services is subject to the terms and conditions of this Article 6:
6.1 Leased Hosted Voice Equipment. If you are leasing hosted voice equipment (the "Leased Equipment") from Astound Business, then the Leased Equipment shall at all times be and remain the personal property of Astound Business. Astound Business shall be responsible for the regular maintenance and repair of all Leased Equipment. Should you experience problems with any of the Leased Equipment, you must contact Astound Business and Astound Business will use commercially reasonable efforts to repair or replace the malfunctioning Leased Equipment as soon as reasonably possible after receiving your notification. For Leased Equipment, Astound Business shall have the right at any time, and from time to time, during the service term to substitute different hosted voice equipment for some or all of the Leased Equipment initially installed at your service site; provided that the substituted Leased Equipment has equivalent or better functionality than the previously installed Leased Equipment. Should any Leased Equipment require repair or replacement due to your negligent or willful conduct, including the misuse or abuse of same, you shall reimburse Astound for the costs of such repair or replacement.
6.2 Purchased Hosted Voice Equipment. If you have purchased hosted voice equipment (the "Purchased Equipment") through Astound Business, then upon your acceptance of the Purchased Equipment, the Purchased Equipment shall be and remain your personal property. As between Astound Business and you, you shall be solely responsible for the repair and maintenance of all Purchased Equipment and any and all obligations and liabilities associated therewith. YOU ACKNOWLEDGE THAT THE PURCHASED EQUIPMENT IS NOT MANUFACTURED BY ASTOUND BUSINESS AND THAT.ASTOUND BUSINESS DOES NOT SUPPORT AND SHALL HAVE NO MAINTENANCE OBLIGATIONS OR OTHER LIABILITY REGARDING SAME. ASTOUND BUSINESS WILL EITHER
DELIVER THE MANUFACTURER'S WARRANTY FOR THE PURCHASED EQUIPMENT DIRECTLY TO YOU OR PASS THROUGH THE MANUFACTURER'S WARRANTY TO YOU DEPENDING ON THE APPLICABLE MANUFACTURER'S POLICY.. ASTOUND BUSINESS HEREBY
ASSIGNS TO YOU ALL OF THE MANUFACTURERS' WARRANTIES AND INDEMNITIES RELATING TO THE PURCHASED EQUIPMENT TO THE EXTENT ASTOUND BUSINESS IS PERMITTED BY THE MANUFACTURER TO MAKE SUCH ASSIGNMENT TO YOU. SUCH ASSIGNMENT IS SUBJECT TO ALL OF THE TERMS AND CONDITIONS IMPOSED BY THE MANUFACTURER WITH RESPECT THERETO.
Service -Specific Terms and Conditions pg. 4
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YOUR REMEDY FOR DEFECTIVE PURCHASED EQUIPMENT SHALL BE AS SET FORTH IN THE APPLICABLE MANUFACTURER'S WARRANTY WHICH I5 YOUR SOLE AND EXCLUSIVE REMEDY FOR BREACH OF AN EQUIPMENT WARRANTY. ASTOUND BUSINESS
DOES NOT EXTEND ANY WARRANTIES, EXPRESS OR IMPLIED, INCLUDING WARRANTIES OF MERCHANTABILITY, NON -
INFRINGEMENT OR FITNESS FOR A PARTICULAR PURPOSE, EITHER TO YOU OR TO THIRD PARTIES, FOR ANY PURCHASED
EQUIPMENT PURCHASED BY YOU PURSUANT TO A CONTRACT, NOR SHALL ASTOUND BUSINESS HAVE ANY LIABILITY FOR ANY LOSS,
DAMAGE, OR EXPENSE DIRECTLY OR INDIRECTLY ARISING FROM YOUR USE OF (OR INABILITY TO USE) THE PURCHASED EQUIPMENT OR A THIRD PARTY'S UNAUTHORIZED USE OF THE PURCHASED EQUIPMENT. Any questions concerning or requests for maintenance or repair of the Purchased Equipment should be directed to the manufacturer of the Purchased Equipment at issue.
If Purchased Equipment impairs the Services, you will remain liable for payment of the applicable monthly service fees. If, at your request, Astound Business attempts to resolve difficulties caused by Purchased Equipment, you will be responsible for Astound Business's then -current commercial rates and terms for such consulting services on a time and materials basis.
6.3 Hosted Voice Software. Certain types of hosted voice Services, such as virtual seats, mobile clients, and video conferencing solutions, require the installation of third -party software on your equipment. Additionally, both Leased Equipment and Purchased Equipment may include a limited license to use certain third -party software and/or firmware provided by the vendor or manufacturer of the Leased Equipment / Purchased Equipment. Any such software or firmware provided to you in connection with hosted voice Services shall be collectively referred to as the "Hosted Voice Software." You expressly understand and agree that, unless otherwise provided in any written license agreement or other documentation from the third -party vendor or manufacturer of the Hosted Voice Software, you may only use the Hosted Voice Software for the purposes of using and operating the Leased Equipment / Purchased Equipment and receiving the Services as contemplated by your Contract. You understand and agree that each of the following is prohibited with respect to the Hosted Voice Software: (a) copying the Hosted Voice Software or associated documentation, either in whole or in part; (b) modifying, reverse compiling, reverse assembling or otherwise reverse engineering the Hosted Voice Software, either in whole or in part, or attempting to do any of the foregoing; (c) sub -licensing, leasing, sub -leasing, selling or otherwise distributing the Hosted Voice Software, either in whole or in part, and whether or not for profit, to any third parties; and (d) creating derivative works of, from, based on, using or incorporating all or any portion of the Hosted Voice Software.
6.4 Use of Specific Hosted Voice Features. Astound Business's hosted voice Services may include certain features that are enabled by "add -in" software or service components. These features are intended to enhance the functionality of the hosted voice Services and provided you with additional convenience and collaboration tools. Examples of such features include, but are not limited to, SMS messaging, voicemail transcription, voicemail recording and other similar functions, expressly including any additional "add -in" feature enhancements that Astound Business may make available or incorporate into the hosted voice Services in the future. Astound Business has established its pricing for the hosted voice Services based on assumptions of normal business use of the hosted voice Services within the United States of America. Should your use of the hosted voice Services, including any of the "add -in" features such as SMS messaging, significantly exceed normal business use, Astound Business reserves the right to disable the feature(s) at issue and/or impose additional cost -recovery charges for your excessive use.
6.5 Installation of Hosted Voice Equipment. As a part of the hosted voice Service, Astound Business will install the hosted voice equipment for you (whether such equipment is Leased Equipment or Purchased Equipment) at the specified service site. If your service site contains existing inside wiring, Astound Business will use your existing wiring for the installation; provided, that Astound Business's use of any existing wiring shall not constitute any type of representation, warranty or guarantee to you that the existing wiring is in good condition and/or free from defects. If your service site does not contain the necessary inside wiring (as determined by Astound Business in Astound Business's commercially reasonable judgment), Astound Business will so notify you and you may elect to install wiring itself or to request that Astound Business install wiring for you. If Astound Business installs wiring for you, such work shall be performed on a time and materials basis, with the wiring to become your personal property upon your acceptance of the Service. If, during the installation process, Astound Business discovers or uncovers any hazardous materials or substances at your service site: (A) Astound Business shall have the option to cease work at the service site and terminate your hosted voice Service Contract, without any liability for or obligation to remove or remediate the hazardous materials so discovered; and (B) you shall indemnify, defend.and hold Astound Business harmless from and against any and all claims, costs, damages and expenses incurred by Astound Business in connection with or as a result of the pre-existing hazardous materials, including attorneys' and experts' fees and costs as well as the costs of any environmental assessment or remediation work that may be performed at the service site.
6.6 Bring -Your -Own -Phone Provisions. For certain models of phones, Astound Business has the ability to attempt to connect phones that you already own (the "Customer Phones") to Astound Business's hosted voice Service, which eliminates the need for you to lease or purchase phones from Astound Business. If you elect to use your existing Customer Phones with Astound Business's Service -Specific Terms and Conditions pg. 5
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DocuSlgn Envelope ID: 3C8F4C89-DATA-427D-A1 FB-A7FA652BFE89 hosted voice Service, you expressly agree to the following provisions: (a) you must supply the passwords for the Customer Phones, otherwise the phones may not be usable with Astound Business's network; (b) the process of connecting the Customer Phones to Astound Business's network involves re -setting the Customer Phones to their factory defaults, which will delete all information stored on the phones, including contact lists, speed dial numbers, as well as the configurations established for connectivity to your previous hosted voice solution; (c) it is possible that attempting to connect the Customer Phones to Astound Business's network could render one or more of the Customer Phones unusable, requiring a firmware re -flash. In such event, Astound Business will have no responsibility or liability for repairing or replacing the Customer Phone(s) at issue. Instead, you expressly assume the risk inherent in attempting to attach the Customer Phones to Astound Business's hosted voice network; and (d) Astound Business will be unable to provide support and troubleshooting for Customer Phones after implementation. Astound Business will be able to troubleshoot problems with Astound Business's network, but if the network is functioning property and there are technical problems with any of the Customer Phones, you must seek equipment support from the manufacturer or original vendor of the equipment.
ARTICLE 7— CONNECTNOW VIDEO CONFERENCING SERVICE PROVISIONS If you receive ConnectNow video conferencing Services from Astound Business, then, in addition to the other provisions of your Contract, including the Phone Service Provisions set forth above, and the Hosted Voice Service Provisions set forth above, your use of Astound Business's ConnectNow Service is subject to the terms and conditions of this Article 7:
7.1. Use of ConnectNow Service and Your Responsibilities. Astound Business's video conferencing solution, ConnectNow, is a software -based addition to Astound Business's hosted voice Services that is intended to facilitate group collaboration and remote team communications. You are solely responsible for your use of the Service, including for all use made of the Service by your employees, business partners, and other end users. Your use of the ConnectNow Service shall at all times comply with all applicable laws, including, but not limited to, laws related to recording, intellectual property, privacy and export control. (a) Registration Information. You may be required to provide information about yourself and your employees and other end users of the ConnectNow Service in order to use the Service or certain functionality provided by the Service. You agree that all such information shall be accurate. You may be asked to choose a user name and password. You are entirely responsible for maintaining the security of your username and password and agree not to disclose same to third -parties. (b) Your Content. You agree that you are solely responsible for the content sent, transmitted, displayed and/or uploaded by you, your employees and your other end users of the ConnectNow Service. You represent and warrant that you have the right to transmit and upload your content and that such use does not violate or infringe on the rights of any third party. Under no circumstances will Astound Business be liable in any way for any (i) content that is transmitted or viewed while using the ConnectNow Service, (ii) errors or omissions in the content, or (iii) any loss or damage of any kind incurred as a result of the use of, access to, or denial of access to your content. Although Astound Business is not responsible for your content, Astound Business may delete any of your content at any time without notice to you if Astound Business becomes aware that your content violates any provisions of your Contract or applicable law. You retain copyright and any other rights you already hold in content which you submit, post or display on, through or using the ConnectNow Service. (c) Recordings. You are responsible for complying with all recording laws. The host of a ConnectNow session can choose to record ConnectNow meetings and webinars. By using the ConnectNow Service, you are giving Astound Business consent to store recordings for any or all ConnectNow meetings or webinars that you join, if such recordings are stored in Astound Business's systems. You will receive a notification (visual or otherwise) when recording is enabled. If you do not consent to being recorded, you can choose to leave the meeting or webinar. (d) Prohibited Use. You agree that you will not use, and will not permit any of your employees, business associates or other end users of the ConnectNow Service to do any of the following: (i) modify, disassemble, decompile, prepare derivative works of, reverse engineer or otherwise attempt to gain access to the source code of the ConnectNow Service, (ii) knowingly or negligently use the ConnectNow Service in a way that abuses, interferes with, or disrupts Astound Business's network, youraccounts. or the ConnectNow Service, (iii) engage in activity that is illegal, fraudulent, false or misleading, (iv) transmit through the ConnectNow Service any material that may infringe the intellectual property or other rights of third parties,. (v) build or benchmark a competitive product or service, or copy any features, functions or graphics of the ConnectNow Service, (vi) use the ConnectNow Service to communicate any message or material that is harassing, libelous, threatening, obscene, indecent, would violate the intellectual property rights of any third party or is otherwise unlawful, that would give rise to civil liability, or that constitutes or encourages conduct that could constitute a criminal offense under any applicable law or regulation; (vii) upload or transmit any software, content or code that does or is intended to hard, disable, destroy or adversely affect Service -Specific Terms and Conditions pg. 6
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DocuSign Envelope ID: 3C8F4C89-DATA-427D-A1 FB-A7FA652BFE89 performance of the ConnectNow Service or the Astound Business network in any way, or which does or is intended to harm or extract information or data from other hardware, software or networks of Astound Business or other users of Astound Business's Services, (viii) engage in any activity or use the ConnectNow Service in any manner that could damage, disable, overburden, impair or otherwise interfere with or disrupt the ConnectNow Service, or any servers or networks connected to the Service or Astound Business's security systems, (ix) use the ConnectNow Service in violation of any Astound Business policy or in a manner that violates applicable law, including but not limited to anti-spam, export control, privacy, and anti -terrorism laws and regulations and laws requiring the consent of subjects of audio and video recordings. (e) Limitations on Use. You may not reproduce, resell, or distribute the ConnectNow Service or any reports or data generated by the ConnectNow Service for any purpose unless you have been specifically permitted to do so under a separate agreement with Astound Business. You may not offer or enable any third parties to use the Service purchased by you, display on any website or otherwise publish the ConnectNow Service or any content obtained from the Service (other than content created and owned by you) or otherwise generate income from the ConnectNow Service. You may not use the ConnectNow Service for the development, production or marketing of a service or product substantially similar to the ConnectNow Service. (f) Responsibility for End Users. You are responsible for the activities of all of your employees and other end users who access or use the ConnectNow Service through your account and you agree to ensure that all such employees and end users comply with the terms of your Contract, including the provisions of this Service -Specific T&Cs document, and any other Astound Business policies. If you become aware of any violation of your Contract in connection with the use of the ConnectNow Service by any person, please notify Astound Business immediately. Astound Business may investigate any complaints and violations that come to its attention and may take any (or no) action that Astound Business believes is appropriate, including, but not limited to issuing warnings, removing the content or terminating accounts and/or user profiles.
7.2 Not for Use in High Risk Environments. THE CONNECTNOW SERVICE IS NOT POSITIONED, INTENDED OR DESIGNED FOR
USE IN HAZARDOUS ENVIRONMENTS REQUIRING FAIL-SAFE CONTROLLS, INCLUDING, WITHOUT LIMITATION, OPERATION OF
NUCLEAR FACILITIES, AIRCRAFT NAVIGATION/COMMUNICATIONS SYSTEMS, AIR TRAFFIC CONTROL, LIFE SUPPORT AND/OR WEAPONS SYSTEMS. YOU MUST NOT USE THE CONNECTNOW SERVICE IN ANY HIGH RISK ENVIRONMENT.
7.3 Not Intended for Secure Communications. THE CONNECTNOW SERVICE IS NOT POSITIONED, INTENDED OR DESIGNED TO
PROVIDE SECURE COMMUNICATIONS AND MUST NOT BE USED IN SITUATIONS WHERE THE CONFIDENTIALITY, PRIVACY OR SECURITY OF THE COMMUNICATION AT ISSUE IS ESSENTIAL OR PARAMOUNT. ConnectNow contains certain industry -standard features that, when correctly configured and enabled, can increase the security of ConnectNow sessions. Astound Business strongly recommends that you use the available security features of the Service. However, even with proper configuration of ConnectNow's settings, it is possible that communications made using ConnectNow may be intercepted by unauthorized third parties, disseminated beyond your intended audience, recorded or altered without your consent, or otherwise compromised by hostile hacking activity. YOU EXPRESSLY UNDERSTAND AND AGREE THAT YOUR USE OF THE CONNECTNOW VIDEO CONFERENCING SERVICE IS NOT GUARANTEED TO BE SECURE. INSTEAD, YOU UNDERSTAND AND AGREE THAT YOUR USE OF THE CONNECTNOW SERVICE IS AT YOUR SOLE RISK. ASTOUND BUSINESS SHALL NOT BE LIABLE FOR ANY BREACHES OF PRIVACY, UNAUTHORIZED
DISCLOSURE OF CONFIDENTIAL INFORMATION, OR OTHER DAMAGES OR LOSSES OF ANY TYPE THAT MAY BE SUFFERED BY YOU,
OR ANY OF YOUR EMPLOYEES, BUSINESS PARTNERS OR END USERS DUE TO ANY SECURITY WEAKNESSES IN THE CONNECTNOW SOFTWARE OR ANY HOSTILE HACKING ACTIVITY EXPLOITING SAME.
7.4 No Warranties; Acceptance of Risk. YOU UNDERSTAND AND AGREE THAT THE CONNECTNOW SERVICE IS PROVIDED "AS - IS" AND ASTOUND BUSINESS, ITS AFFILIATES AND SUPPLIERS EXPRESSLY DISCLAIM ALL WARRANTIES OF ANY KIND, EXPRESS OR
IMPLIED, INCLUDING WITHOUT LIMITATION ANY WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NON -INFRINGEMENT. ASTOUND BUSINESS, ITS AFFILIATES AND SUPPLIERS MAKE NO WARRANTY OR REPRESENTATION
REGARDING THE RESULTS THAT MAY BE OBTAINED FROM THE USE OF THE SERVICE, REGARDING THE ACCURACY OR RELIABILITY
OF ANY INFORMATION OBTAINED THROUGH THE SERVICE OR THAT THE SERVICE WILL MEET ANY USER REQUIREMENTS, OR BE UNINTERRUPTED, TIMELY, SECURE OR ERROR FREE. USE OF THE SERVICE IS AT YOUR SOLE RISK. ANY MATERIAL AND/OR DATA DOWNLOADED OR OTHERWISE OBTAINED THROUGH USE OF THE SERVICE IS AT YOUR OWN DISCRETION AND RISK. YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOU RESULTING FROM THE USE OF THE SERVICE. THE ENTIRE RISK ARISING OUT OF USE OR PERFORMANCE OF THE CONNECTNOW SERVICE REMAINS WITH YOU. ASTOUND BUSINESS DOES NOT ASSUME ANY RESPONSIBILITY FOR RETENTION OF ANY USER INFORMATION OR COMMUNICATION BETWEEN USERS. ASTOUND BUSINESS CANNOT GUARANTEE AND DOES NOT PROMISE ANY SPECIFIC RESULTS FROM USE OF THE SERVICE.
Service -Specific Terms and Conditions pg. 7
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DocuSign Envelope ID: 3C8F4C89-DA7A-427D-A1 FB-A7FA652BFE89 ARTICLE 8— REMOTE VIRTUAL OFFICE SERVICE PROVISIONS
If you receive remote virtual office Services from Astound Business, then, in addition to the other provisions of your Contract, your use of Astound Business's remote virtual office Services is subject to the terms and conditions of this Article 8:
8.1 Component Services. Astound Business's remote virtual office Services are comprised of a combination of Astound Business's SD -WAN, Advanced Firewall and/or Advanced Cloud Security Services, Astound Business's Hosted Voice Services, Astound Business's ConnectNow video conferencing Service, as well as any other add-on Services selected by you. Accordingly, the provisions of this Service -Specific T&Cs document that apply to the component Services comprising your remote virtual office Services also apply to your remote virtual office Services. Please refer to those sections of this Service -Specific T&Cs for the governing terms and conditions.
8.2 End Users.
(a) In General. Astound Business's remote virtual office Services are available for purchase by Astound Business's business customers with the intent that the business customer will deploy the individual seat packages to members of its end user work force. Astound Business's remote virtual office Services are intended to facilitate the ability of those end users to perform their work activities from their homes or other locations that are geographically distant from the business customer's office space. Thus, the actual users of the remote virtual office Services will be the business customer's end user employees and/or contractors (the "End Users").
(b) No Contractual Relationship Between End Users and Astound Business. Notwithstanding the fact that the End Users will be the actual users of the remote virtual office Services, there is no contractual relationship between Astound Business and any one or more of the End Users. Instead, the contractual relationship is solely between Astound Business and the business customer ordering the remote virtual office Services. The business customer ordering remote virtual office Services for its End Users is responsible to Astound Business for all activities performed by its End Users using the Services, including any unauthorized or illegal activities, and including the repair and/or replacement of any equipment that is damaged while in the End User's possession. Accordingly, if you order Astound Business's remote virtual office Services, it is your responsibility to ensure that all of your End Users comply with the terms of your Contract, including the provisions of this Service -Specific T&Cs document, and any other Astound Business policies.
(c) Technical Support for End Users. Astound Business does not provide direct technical support of the remote virtual office Services to any End Users. Instead, Astound Business will provide any needed technical support to Astound Business's business customers that order the remote virtual office Services. It is the responsibility of those business customers to provide technical support to their own End Users.
8.3 Underlying Internet Connection Required. Astound Business's remote virtual office Services are cloud -hosted Services that require an underlying Internet connection in order to operate. The underlying Internet connection does not need to be provided by Astound Business; it may be provided by any Internet access provider. However, the remote virtual office Services will not function if the End User does not have an active connection to the Internet.
8.4 Performance of Remote Virtual Office Services. Because Astound Business's remote virtual office Services rely on the End User's Internet connection to operate, the performance each End User of the remote virtual office Services experiences at any given time may vary and fluctuate depending on the attributes of that End User's underlying Internet access connection.
8.5 Purchased Equipment. Astound Business's remote virtual office Services may require the purchase of certain auxiliary equipment, such as headsets, HD video cameras, and desktop phones (the "Purchased Equipment"), that become the property of customer upon delivery of the equipment to the End User. Upon the End User's acceptance of the Purchased Equipment, the Purchased Equipment shall be and remain your personal property. As between Astound Business and you, you shall be solely responsible for the repair and maintenance of all Purchased Equipment and any and all obligations and liabilities associated therewith. YOU ACKNOWLEDGE THAT THE PURCHASED EQUIPMENT IS NOT MANUFACTURED BY ASTOUND BUSINESS AND THAT
ASTOUND BUSINESS DOES NOT SUPPORT AND SHALL HAVE NO MAINTENANCE OBLIGATIONS OR OTHER LIABILITY REGARDING SAME. ASTOUND BUSINESS WILL EITHER DELIVER THE MANUFACTURER'S WARRANTY FOR THE PURCHASED EQUIPMENT DIRECTLY
TO YOU OR PASS THROUGH THE MANUFACTURER'S WARRANTY TO YOU DEPENDING ON THE APPLICABLE MANUFACTURER'S POLICY. ASTOUND BUSINESS HEREBY ASSIGNS TO YOU ALL OF THE MANUFACTURERS' WARRANTIES AND INDEMNITIES RELATING
TO THE PURCHASED EQUIPMENT TO THE EXTENT ASTOUND BUSINESS IS PERMITTED BY THE MANUFACTURER TO MAKE SUCH ASSIGNMENT TO YOU. SUCH ASSIGNMENT IS SUBJECT TO ALL OF THE TERMS AND CONDITIONS IMPOSED BY THE MANUFACTURER Service -Specific Terms and Conditions pg. 8
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DocuSign Envelope ID: 3C8F4C89-DA7A-4270-A1 FB-A7FA652BFE89 WITH RESPECT THERETO. YOUR REMEDY FOR DEFECTIVE PURCHASED EQUIPMENT SHALL BE AS SET FORTH IN THE APPLICABLE MANUFACTURER'S WARRANTY WHICH IS YOUR SOLE AND EXCLUSIVE REMEDY FOR BREACH OF AN EQUIPMENT WARRANTY.
ASTOUND BUSINESS DOES NOT EXTEND ANY WARRANTIES, EXPRESS OR IMPLIED, INCLUDING WARRANTIES OF MERCHANTABILITY, NON -INFRINGEMENT OR FITNESS FOR A PARTICULAR PURPOSE, EITHER TO YOU OR TO THIRD PARTIES, FOR ANY. PURCHASED
EQUIPMENT PURCHASED BY YOU PURSUANT TO A CONTRACT, NOR SHALL ASTOUND BUSINESS HAVE ANY LIABILITY FOR ANY LOSS,
DAMAGE, OR EXPENSE DIRECTLY OR INDIRECTLY ARISING FROM YOUR (OR YOUR END USERS') USE OF (OR INABILITY TO USE) THE PURCHASED EQUIPMENT OR A THIRD PARTY'S UNAUTHORIZED USE OF THE PURCHASED EQUIPMENT. Any questions concerning or requests for maintenance or repair of the Purchased Equipment should be directed to the manufacturer of the Purchased Equipment at issue. If Purchased Equipment impairs the Services, you will remain liable for payment of the applicable monthly service fees. If, at your request, Astound Business attempts to resolve difficulties caused by Purchased Equipment, you will be responsible for Astound Business's then -current commercial rates and terms for such consulting services on a time and materials basis.
ARTICLE 9 — DARK FIBER SERVICE PROVISIONS
If you receive dark fiber Services from Astound Business, then, in addition to the other provisions of your Contract, your use of Astound Business's dark fiber Services is subject to the terms and conditions of this Article 9:
9.1 Grant of License. Beginning on the service commencement date for each segment of dark fiber, and continuing through the term of your Contract, Astound Business grants to you, and you accept from Astound Business, a license (the "License") to use the specified number of dark fiber strands on the segment (the "Licensed Fibers") by accessing same solely at the A Location and Z Location end points (the "End Points") specified in your Contract. You are not permitted to access the Licensed Fibers at any location other than the End Points. The License does not include any right on your part to: (i) own, control, possess, encumber, repair or maintain, or cause or permit any lien to attach to the Licensed Fibers, any Astound Business -owned equipment, or any other property of Astound Business; or (ii) use or access any of the other fiber optic strands that may be in the same cable bundle as the Licensed Fibers.
9.2 Route of Licensed Fibers. Astound Business shall at all times have full and complete discretion to choose the route along which the Licensed Fibers are installed between the End Points. That route will not necessarily be the most direct route between the End Points. Astound Business may, from time to time, elect to change the route along which the Licensed Fibers are installed.
So long as the technical specifications for each Fiber Route continue to be met, you shall have no authority to approve or disapprove of any particular installation route. In the event of any route relocation, Astound Business shall use commercially reasonable efforts to minimize the disruption to your use of the Licensed Fibers.
9.3 Astound Business's Retained Rights. Astound Business retains the exclusive right to provide services using, or to sell or lease to other customers or end users fibers (other than the Licensed Fibers) contained in the same cable bundle as the Licensed Fibers. Astound Business shall not use the Licensed Fibers during the service term of your Contract. •
9.4 Standard Technical Specifications. Astound Business's dark fiber will typically comply with the following specifications:
(i) the maximum bi-directional average splice loss shall not exceed 0.15 dB; and (ii) the attenuation shall not exceed 0.25 dB/km when measured at a wavelength of 1550 nm. If your Service Order, IRU Agreement or other contract contains different technical specifications from those listed above, the technical specifications set forth in your Service Order or IRU Agreement (as applicable) control.
ARTICLE 10 — VIDEO SERVICE PROVISIONS
If you receive video Services from Astound Business, then, in addition to the other provisions of your Contract, your use of Astound Business's video Services is subject to the terms and conditions of this Article 10:
10.1 Price Increases. After the first twelve (12) months of the Initial Service Term, the MRC for the video Services is subject to increase; provided, that in no event shall any such increase exceed Astound Business's increased direct costs to deliver the video Services. Should Astound Business elect to increase the price of some or all of the video Services provided to you, Astound Business. shall deliver at least thirty (30) days advance written notice to you specifying the amount of the price increase.
10.2 Additional Charges. The MRC for video Services that is specified on your Service Order does not include Applicable Taxes, franchise fees, FCC regulatory fees, broadcast station retransmission fees (aka RTC fees), certain sports programming fees or any Service -Specific Terms and Conditions pg. 9
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Docusign Envelope ID: 3C8F4C89-DATA-427D-A1 FB-A7FA652BFE89 charges or fees imposed by a governmental authority on the provision of the Services, all of which shall be passed through to you as additional line items on your monthly invoice.
10.3 Channel Line -Up. Astound Business may at any time and from time to time change the number and/or identity of the signals comprising the Services and/or the placement of those signals (aka the "channel line-up"). In connection with providing Services to you, Astound Business, its authorized agents and equipment manufacturers may send code updates to your equipment including, but not limited to, cable modems, digital interactive televisions with CableCARDs, MTAs, HD DTAs or other similar equipment at any time. Such code updates may change, add or remove features or functionality of any such equipment or the Services.
10.4 Restricted Viewing in Public Areas. Pursuant to the provisions of one or more of Astound Business's programming agreements with video content providers, you may be restricted from showing certain channels of the Services in public areas (e.g., meeting rooms, lobbies, exercise rooms, restaurants, etc.). You agree that you will not display the Services in public areas.
Astound Business shall not be liable to you or to any third party should you violate the preceding sentence.
10.5 Separate Music Licenses. You may be required by law to obtain separate music performance license(s) if you use the audio component of the Services in public areas (e.g., meeting rooms, lobbies, exercise rooms, restaurants, etc.). You are solely responsible for (i) investigating and determining the need for such license(s), and (ii) taking all steps necessary to obtain and pay for such license(s).
10.6 No Unauthorized Distribution. Any video Services provided to you pursuant to the Agreement are for the sole benefit of you and your employees, contractors, agents, and/or end users who occupy the units at the Service Site. You shall not re -sell or allow redistribution of the Services to any third party, either in whole or in part, whether directly or indirectly, and whether on an integrated or unintegrated basis. You are responsible for all access to and use of the Services by means of your equipment and your internal wiring, whether or not you have actual knowledge of or authorize such access or use. You agree to implement commercially reasonable security measures to prevent unauthorized use of, access to, or redistribution of the Services.
10.7 Performance; Technical Support. Astound Business shall use commercially reasonable efforts in keeping with normal industry standards to ensure that the video Services are available to you twenty-four (24) hours per day, seven (7) days per week.
It is possible, however, that there will be interruptions of the video Services. You understand and agree that the Services may be unavailable from time to time either for scheduled or unscheduled maintenance, technical difficulties, or for other reasons beyond Astound Business's reasonable control. Temporary service interruptions for such reasons, as well as all service interruptions caused by your employees, contractors, agents, or end users, will not constitute failures by Astound Business to perform its obligations under the Agreement. If Astound Business responds to a request from you for technical support and Astound Business determines that the problem was due to or caused by you or your employees, agents or end -users, or by your equipment rather than any aspect of Astound Business's network or Astound Business's equipment, then you shall compensate Astound Business for its time spent troubleshooting the problem at Astound Business's then -current rates.
10.8 Right to Audit. Astound Business may, at any time during the Service Term, upon reasonable advance notice to you, enter onto the Service Site to perform an audit verifying that your use of the video Services complies with the provisions of the Agreement. Should Astound Business reasonably determine, whether through an audit or otherwise, that your use of the video Services has violated any provision of the Agreement, you agree to immediately correct same. (The remainder of this page is intentionally left blank.] Service -Specific Terms and Conditions pg. 10
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