004-05 - Wave Broadband - ContractWave Broadband
Customer Agreement for
Point -to -Point (VLAN) Cable Niodem Circuit
Customer information:
Name: City of Port Orchard
Address: 216 Prospect Street
City/State/Zip: Port Orchard, WA 98366
Telephone No: 360-876--4407
Fax No: 360-895-9029
Contact: Vince Tucker
Account No:
Wave Information:
Bill To:
Wave Contact: Gary B. Schrier: 360-871-5618 x.1704, 9arys@wavebroadband.com
Tech Support (Business Dedicated): 888-202-9820
Business Address: 4519 SE Mile H111 ❑r. Port Orchard, WA 98366
Term of Service: 12 months upon installation.
Tax Free Status: No X Yes — Include a copy of Tax Free Status Sheet.
ATTACHMENT A - EcLui men SService and O tuns
FEATURES:
Speed (up to) down/up
Service Point No.1:
City of Port Orchard Public Works
1535 Vivian Court, Port Orchard, 98367
Service Point No.3:
n/a
Service Package Name
PRICING:
Specify. 1.5 Mb download, 1.5 Mb upload
service Point No.2:
City of Port Orchard City Hall
216 Prospect Street, Port Orchard 98366
Service Point No.4:
n/a
Specify: m
Comercial; P-to-P
Basic Installation Charge
$ 199.90
(Describe: e.g., modem installation and configuration, minimal
co -axial cable extension and Installation of outlet
$, n/a
Non -Standard Installation Charge:
(Describe: e.g., open -cut trench, lay conduit & cable pull)
Total One -Time Investm—ervt
$ 199.90
Monthly Service Charge
$ 225.00
$ 150.00 (2 Qa_) SB5100)
Equipment Purchase:
(Cable modem)
Monthly Payment on Non-Std. Installation Charge:
$ n/a
of Payments:otal
225.00
$n/aotal
�N'
Monthly Recurring Charge:
$ n/a
to Pay at Time of Installation:
ra -
kk
customer Initials
Revision Date 10/1/2004 Page 1 of 6
TAXES and FRANCHISE FEE:
The Customer shall be liable and responsible for payment of all taxes or franchise fees associated with Service. A
copy of the customer's tax exemption document must certify tax-exempt status. Tax-exempt status shall not
waive the franchise fee and other local utility taxes, if applicable.
TERMINATION:
If installation or cable modem is paid in installments, payment in full is due upon termination.
SITE PREPARATION ACTIVITIES:
The Customer shall be responsible for completing the following activities prior to installation -
[describe, e.g., internal wiring]
ROUTERS and NETWORK DEVICES:
Wave shall provide a functioning connection to the Wave network: The Customer shall be responsible for
providing the necessary customer premises network devices, troubleshooting, maintenance, compatibility,
efficiency, security or other effects that cause slow speeds and/or violations of the Acceptable Use Policy at
Wave's discretion.
Customer Agreement
1. THE SERVICE
This Customer Agreement ("Agreement") states the terms and conditions under which Wave Broadband ("Wave")
shall provide the Customer with access to a private virtual local area network (VLAN) point-to-point circuit using
Wave's facilities ("Service").
The Service provided is an Ethernet -like protocol service. Wave shall undertake reasonable network
management, traffic analysis, operational procedures and user policies to ensure appropriate bandwidth.
2. EQUIPMENT AND SOFTWARE REQUIREMENTS
Customer shall maintain certain minimum equipment and software to receive the Service, as listed in Attachment
A hereby incorporated into and made a part of this Agreement. Wave shall provide additional equipment, as
necessary. The Customer shall be responsible for providing its own electronic mail client, and TCP/IP software.
3. PAYMENT TERMS
The Customer agrees to pay an installation fee and monthly recurring charges for the Service, as set forth in the
schedule of fees and charges in Attachment A. The Customer agrees to pay all applicable federal, state and local
fees or taxes. If the Customer's use or modification of the equipment or software supplied by Wave requires more
than two (2) visits during the initial Term or any renewal Terms to the Customer's facilities for repair or correction,
Wave reserves the right to charge the Customer for such additional site visits.
Installation fees are due at the time of installation. Customer shall pay monthly charges in advance. Failure to pay
all bills within thirty (30) days of issuance of the Customer's bill shall constitute grounds for disconnection and/or
imposition of a late fee of not more than 5% on any outstanding amount as a one-time late charge, at Wave's
discretion. Wave may charge a reasonable service fee for all returned checks and bankcard or charge card
charge -backs. The Customer shall be responsible for all expenses (including reasonable attorney's fees) incurred
by Wave in collecting any unpaid amounts due in accordance with this Agreement.
4. TERM
The Term of the Service ("Term") shall initially be as set forth above, and upon expiration shall automatically
renew for successive twelve (12) month terms at the originally contracted rate, unless either party provides the
other thirty (30) days prior written notice before the expiration date of the then -current term that it does not wish to
renew, or otherwise exercises its rights under section 14, below.
Revision Date 10/1/2004 Page 2 of 6 2
5. INSTALLATION AND ACCESS
The Customer shall be responsible, at its own expense, for all site preparation activities necessary for installation
of the Service, as described on Attachment A, including the relocation of the Customer's equipment, as necessary
to access the Service. Wave shall schedule one or more installation visits with the Customer, as necessary. The
Customer's authorized representative must be present during installation. Following installation, the Customer
shall provide Wave with reasonable access at normal business hours to the premises to inspect, repair, and
maintain Wave's equipment. Such access shall include landlord permission, when applicable.
6. WAVE'S EQUIPMENT AND SOFTWARE
Unless purchased as set forth in Attachment A, the cable modem supplied and installed by Wave under this
Agreement shall at all times remain the property of Wave and must be returned to any Wave office in good
condition at the termination of the Service. The Customer shall use reasonable care to avoid damaging the cable
modem, and shall not move, relocate, alter, sell, lease, assign, encumber or otherwise tamper with the equipment.
If the equipment (excluding equipment purchased from Wave as described in Attachment A) is not returned to
Wave in good condition immediately upon termination, Wave shall bill the Customer and the Customer agrees to
pay for its replacement at Wave's then -current retail price, plus any collection fees.
7. CUSTOMER'S RESPONSIBILITIES
The Customer agrees that any person who accesses the Service through the Customer's computer(s), under the
Customer's screen name or through the cable outlets in the Customer's facility, shall be subject to this Agreement.
The Customer assumes all liability and responsibility to ensure that all such other users understand this
Agreement and comply with its terms. The Customer shall be responsible for all access to and use of the Service
by means of the Customer's equipment, whether or not the Customer has knowledge of or authorizes such access
or use. The Customer shall be liable and responsible for all charges incurred and all conduct through either
authorized or unauthorized use of the Customer's account, until the Customer informs Wave of any breach of
security.
Wave shall provide the Service to the Customer. Upon installation, Wave shall test to confirm that the Service can
be accessed from within the Customer's place of business. The Customer shall be liable and responsible for
distributing access to the Service within the Customer's place of business. Wave assumes no liability or
responsibility for the installation, maintenance, compatibility or performance of any equipment or software not
provided by Wave. If such third -party equipment or software impairs the Service, the Customer shall remain liable
for payment. At the Customer's request, Wave shall reasonably attempt to resolve difficulties caused by such
third -party equipment or software. Wave makes no warranty that it will resolve the difficulties caused by such
third -party equipment or software.
Security. The Customer shall be responsible for the implementation of reasonable security procedures and
standards with respect to its own demarcation point that interfaces with the Service. Wave may communicate
security issues to the Customer from time to time when abuse or misuse is observed or reported by others.
The Customer assumes all responsibility for providing and configuring any "firewall" or security
measures for use with the Service at its location.
8. SERVICE PERFORMANCE
Wave shall use commercially reasonable efforts to assure that the Service is available to the Customer 24 hours
per day, seven days per week. It is possible, however, that there will be interruption of the Service. If an outage
condition is known sufficiently far in advance, Wave shall attempt to provide the Customer with electronic mail
notification. The Customer understands and agrees that the Service may be unavailable from time to time either
for scheduled or unscheduled maintenance, technical difficulties, or for other reasons beyond Wave's control. The
temporary unavailability of the Service shall not constitute a breach of contract or a failure by Wave to perform its
obligations under the Agreement.
p F1
Revision Date 10/1/2004 Page 3 of 6 3
9. SUPPORT AND MAINTENANCt
Wave shall provide Customer Support, via a local or toll free number, for use of the Service with the hardware and
software specified on Attachment A. The Customer shall provide technical support for its own router(s) or client
software. Wave shall dispatch a service technician if any problem with Wave's hardware or the connection cannot
be resolved with a phone call to Wave Customer Support personnel. Payment for such service technician shall be
pursuant to Section 3 of this Agreement.
10. DISCLAIMER OF WARRANTIES AND LIMITATION OF LIABILITY
Limited Warranty. Wave hereby represents and warrants to the Customer that all Services shall be performed in
a workmanlike manner and in accordance with the terms and conditions set forth in this Agreement. Any warranty
claim by the Customer must be made within sixty (60) days after the applicable Service has been performed.
Wave's sole obligation and the Customer's sole remedy, with respect to any breach of the limited warranty set
forth in this Section shall be a pro-rata refund of the fees paid by the Customer for the period of time when the
Service is out of compliance with this Limited Warranty provision.
Disclaimer. The warranties in this section are in lieu of all other warranties, express or implied, including any
warranty of merchantability, fitness for a particular purpose or non -infringement.
Damage, Loss or Destruction of Software Files and/or Data. Wave assumes no liability or responsibility
whatsoever for any damage to or loss or destruction of any of the Customer's hardware, software, files, data or
peripherals, which may result from the Customer's use of the Service, or from the installation, maintenance or
removal of the Service, equipment or software. Wave does not warrant that any data or files sent by or to the
Customer will be transmitted in uncorrupted form within a reasonable period of time.
No Liability for Risks of Internet Use. The Service does not include egress to the Internet
No Liability for Purchases. Through use of the Service, the Customer may access certain information, products
and services of others, for which there is a charge. The Customer shall be solely liable and responsible for all fees
or charges for these online services, products or information. Wave shall have no responsibility to resolve disputes
with other vendors.
No Liability for Changes of Address. Due to growth, acquisitions and changes in technology, Wave reserves the
right to change addressing schemes, including e-mail and IP addresses. Wave may provide the Service in
partnership with other companies ("Partners"). The Customer agrees to abide by the terms and conditions of the
Partners' services.
11. FORCE MAJEURE
The Customer agrees that Wave shall not be liable for any inconvenience, loss, liability or damage resulting from
any failure or interruption of service, directly or indirectly caused by circumstances beyond its control, including but
not limited to denial of use of poles or other facilities of a utility company, labor disputes, acts of war, natural
causes, mechanical or power failures, or any order, law or ordinance in any way restricting the operation of the
Service.
12. INDEMNIFICATION
The Customer agrees to indemnify and hold harmless Wave from any claims, demands, lawsuits, judgments,
awards or fines, including attorney's fees, against Wave related to the Customer's use of the Service or the
violation of the Acceptable Use Policy or the Privacy Policy, incorporated herein by reference, and which can be
viewed at www.wavebroadband.com, except for injuries or damages caused by the sole negligence of Wave.
Wave agrees to indemnify and hold harmless Customer, its officers, officials, and employees from any claims,
demands, lawsuits, judgments, awards, or fines, including attorney's fees, arising out of or resulting from the acts,
errors, or omissions of Wave in performance of this Agreement, except for injuries or damages caused by the sole
negligence of the Customer.
Revision Date 10/1/2004 Page 4 of 6 4
13. RIGHT TO TERMINATE
Wave may suspend or terminate the Service if the Customer materially breaches this Agreement including failure
to pay for any past due amounts and failure to cure such breach within fifteen (15) days of notice. Wave may
terminate the Service immediately without notice in order to prevent a breach of network security or other violation
of Wave's Acceptable Use Policy.
Customer may suspend or terminate the Service at any time upon default of Wave and failure to cure such default
within fifteen (15) days of notice or upon public convenience, in which event Wave shall be entitled to just
compensation for any services provide prior to the date of termination, not to exceed the amounts set forth on
Attachment A.
Upon the occurrence of any event of default or material breach of this Agreement, and at any time thereafter, so
long as the same shall be continuing, either party may, at its option, declare this Agreement to be in default, and
upon fifteen (15) business days' written notice, so long as all outstanding events of default shall not have been
remedied, may, in addition to any other remedies provided herein, terminate this Agreement. No express or
implied waiver by either party of any event of default shall in any way be, or be construed to be, a waiver of any
further subsequent event of default.
14. MISCELLANEOUS
Entire Agreement. This Agreement and the schedules referenced in this Agreement constitute the entire
Agreement with respect to the Service. This Agreement supercedes and nullifies all prior understandings,
promises and undertakings, if any, made orally or in writing by or on behalf of the parties with respect to the
subject matter of this Agreement.
Authorized Party. The Customer represents to Wave that the Customer has the authority to execute, deliver and
carry out the terms of the Agreement.
No Rights or Remedies for Third Parties. This Agreement is not intended to give and does not give any rights
or remedies to any person other than Wave and the Customer.
Governing Law. This Agreement and all matters arising out of or related to this Agreement shall be governed by
the laws of the State of Washington, without regard to conflicts of law provisions. The Customer agrees that the
federal and state courts of Washington alone have jurisdiction over all disputes arising under this Agreement and
the Customer consents to personal jurisdiction of those courts with respect to any other disputes arising under this
Agreement.
Severability. If for any reason a court of competent jurisdiction finds any provision of the Agreement, or portion
thereof, to be unenforceable, that provision shall be enforced to the maximum extent permitted by law.
No Assignment or Transfer. The Customer may not assign this Agreement or its rights or obligations under this
Agreement without Wave's prior written consent. The Service shall be provided to the Customer at the office
address (es) specified above as the installation address (es). The Customer may not transfer the Customer's
subscription or the Customer's rights and obligations under the Agreement to any other person or to any other
address without Wave's prior written consent. If requested to move Service to an address serviceable by Wave,
the Customer agrees to pay any new installation and/or construction costs at the new address.
Waiver. Except as otherwise provided herein, the failure of Wave to enforce any provision of this Agreement shall
not constitute or be construed as a waiver of such provision or of the right to enforce such provision.
Contact Information. If the Customer has a problem with the Service, the Customer may contact the Wave
Contact Person identified above.
15, MODIFICATION AND FRANCHISE NEGOTIATIONS
This agreement may be amended, modified, or added to only by written instrument properly signed by both
parties. Wave and Customer are engaged in negotiations regarding the renewal of Wave's cable TV franchise with
Customer. In the event that the parties agree during the course of the cable TV franchise negotiations to modify
the terms of this Agreement, the parties agree to prepare and execute an amendment to this Agreement setting
forth the revised terms, if any.
Revision Date 10/1/2004 Page 5 of 6 5
CITY OF PORT ORCHARD
Date: l'o wt I S *h, 2005.
By: k� M f - ,4��(
Name: Kim C Abe I
WAVE BROADBAND
Date: c / 5.
By: 7
Na :Jerry otondo
Title: M &"/ o r Title: General Manager
Revision Date 10/1/2004 Page 6 of 6 6