HomeMy WebLinkAboutMCI - CONTRACT - GENERAL CORRESPONDENCE - MCI AGREEMENTfW
MCI® SERVICE AGREEMENT
MCI Communications Services, Inc City of Fort Collins, Colorado
22001 Loudoun County Parkway 215 N. Mason Street, 3rd Floor
- �n
Ashburn VA 20147 Fort � s, CO 50522-055$0
By: By:
Name: Nam : TBQ O F U-fZ, tt@ spa -d 'FaCC`
Title: Title: CI)A_ '1.1- Zr
y
Date: Date: J L $ J O ts—
This Agreement for MCI Services, together with any Attachments and Schedules made part hereof ("Agreement'), is made by and between MCI
Communications Services, Inc ("MCI'), on behalf of itself and its affiliates and successors and the City of Fort Collins, CO. ("Customer'). This
Agreement is binding upon execution by both parties. MCI or its providing affiliate will provide to Customer the Services as set forth herein. The
rates, discounts, charges and credits set forth herein shall be effective the first day of the second full billing cycle following execution and delivery of
this Agreement by Customer to MCi ("Effective Date"). Pricing and/or promotional benefits in this Agreement may not be available if it is signed and
delivered to MCI after January 21, 2005.
TERMS AND CONDITIONS
1. Services. MCI will provide to Customer the services
("Services') identified in Attachments to this Agreement.
2. Term. The "Term" shall begin on the Effective Date and end
upon the completion of twenty four (24) months. Upon the completion
of twenty four months, this Agreement may be extended for two (2)
additional twelve (12) month periods subject to mutual agreement of
the Parties.
3. Tariff and Guide. MCI's provision of Services to Customer
will be governed by MCI's international, interstate and state tariffs
("Tariff(s)") and MCI's `Service Publication and Price Guide"
("Guide"), each as supplemented by this Agreement. This Agreement
incorporates by reference the terms of each Tariff and the Guide. The
Guide is available to Customer on MCI's Internet website
(www.mei.com) ("Website") and at MCI's headquarters located at
22001 Loudoun County Parkway, Ashburn, Virginia 20147 during
regular business hours. MCI may modify the Guide from time to
time, and any modification will be binding upon Customer. Customer
may sign-up for email alerts of Guide changes at
www.mci.com/guide/subscription. Except for new services, service
features, service options or service promotions, which will become
effective immediately upon their posting in the Guide on the Website,
any modification made to the Guide will become effective on the date
indicated in the Guide, provided that no such modification shall
become effective and binding on Customer until it has been posted in
the Guide for at least fifteen (15) calendar days. The contractual
relationship between MCI and Customer shall be governed by the
following order of precedence: (i) the Tariffs to the extent applicable,
(ii) the provisions of this Agreement, and (iii) the Guide.
4. Changes to the Guide. If MCI makes any changes to the Guide
that affect Customer in a material and adverse manner, Customer may
discontinue the affected Service without liability by providing MCI
with written notice of discontinuance within sixty (60) days of the date
such change is posted on the Website. Customer shall pay all charges
incurred up to the time of Service discontinuance. MCI may avoid
Service discontinuance if, within sixty (60) days of receipt of
Customer's written notice, it agrees to amend this Agreement to
eliminate the applicability of the material and adverse change. If a
Service is discontinued hereunder, Customer's AVC will be reduced,
as appropriate, to accommodate the discontinuance. A "material and
adverse change" shall not include, nor be interpreted to include, (i) the
introduction of a new service or any new service feature associated
with an existing Service, including all terms, conditions and prices
relating thereto, or (ii) the imposition of or changes to Governmental
Charges (defined below).
5. Rates and Charges Customer agrees to pay the rates and
charges specified in this Agreement. In the event (i) Customer
receives any services that are not the subject of rates, charges and
discounts expressly set forth in this Agreement, or (ii) Customer
purchases any services after the expiration of the Term, Customer
shall pay MCI's standard rates for those services, as set forth in the
Guide (or Tariffs, if applicable). As used in this Agreement in
connection with rates and charges, "standard" refers to rates and
charges for MCI Business Services II ("MBSII") where applicable.
Except where explicitly stated otherwise for a particular service, (a) all
rates and charges are subject to change, (b) all discount percentages
set forth in this Agreement are foxed for the Term, (c) Customer will
not be eligible to receive any other additional discounts, promotions
and/or credits (Tariffed or otherwise), and (d) the rates and charges set
forth in this Agreement do not include (without limitation) charges for
all possible non -recurring charges, access service, local exchange
service, charges imposed by a third party other than MCI or an MCI
affiliate, on -site installation, Governmental Charges (defined below),
network application fees, customer premises equipment or extended
wiring to or at Customer premises.
6. Minimum Annual Volume Commitment ("AVC').
Customer agrees to pay MCI no less than fourteen thousand five
hundred dollars ($14,500.00) in Total Service Charges (as hereinafter
defined) during each Contract Year (the "AVC'). A "Contract Year"
means each consecutive twelve-month period of the Term
commencing on the Effective Date. "Total Service Charges" means
all charges, after application of all discounts and credits, incurred by
Customer for Services provided under this Agreement, specifically
excluding: (a) Taxes, as that tern is defined in section 9 below; (b)
charges for equipment and data center services (unless otherwise
expressly stated herein); (c) charges incurred for goods or services
where MCI or MCI affiliate acts as agent for Customer in its
acquisition of goods or services; (d) non -recurring charges; (e)
Governmental Charges (defined below); (f) international pass -through
access charges (i.e., Type 3/PTT) and charges for international access
provided by MCI (i.e., Type 1); and (g) other charges expressly
excluded by this Agreement.
7. Underutilization Charges. If, in any Contract Year during the
Term, Customers Total Service Charges do not meet or exceed the
AVC, then Customer shall pay: (a) all accrued but unpaid charges
incurred under this Agreement; and (b) an "Underutilization Charge"
CONFIDENTIAL
in an amount equal to twenty-five percent (25°/o) of the difference
between the AVC and Customer's Total Service Charges during such
Contract Year.
8. Governmental Charges. MCI may adjust its rates and charges
or impose additional 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'). Examples of such
Governmental Charges include, but are not limited to Universal
Service funding and compensation payable to payphone service
providers for use of their payphones to access MCI's service.
9. Taxes. All Tax -related provisions of the Guide are specifically
incorporated by reference herein. In accordance with the Guide, all
charges are exclusive of applicable Taxes (as the term is defined in the
Guide), which Customer shall pay. However, if applicable, MCI will
exempt Customer in accordance with law, effective on the date MCI
receives a valid exemption certificate for Customer. If Customer is
required by the laws of any foreign tax jurisdiction to withhold income
or profit taxes from a payment, Customer will, within ninety (90) days
of the date of the withholding, provide MCI with official tax
certificates documenting remittance of the taxes to the relevant tax
authorities. The tax certificates must be in a form sufficient to
document qualification of the income or profit tax for the foreign tax
credit allowable against MCI's U.S. corporation income tax, and
accompanied by an English translation. Upon receipt of the tax
certificate, MCI will issue Customer a billing credit for the amounts
represented thereby.
10. Early Termination Charges. If: (a) Customer terminates this
Agreement before the end of the Tenn for reasons other than Cause;
or (b) MCI terminates this Agreement for Cause pursuant to the
Section entitled `Termination," then Customer will pay, within thirty
(30) days after such termination: (i) all accrued but unpaid charges
incurred through the date of such termination, plus (ii) a pro rats
portion of any and all credits received by Customer.
11. Payment Customer agrees to pay all MCI charges (except
Disputed amounts, as defined below) within thirty (30) days of
invoice date. Payments must be made at the address designated on the
invoice or other such place as MCI may designate. Amounts not paid
or Disputed on or before thirty (30) days from invoice date shall be
considered past due, and Customer agrees to pay a late payment
charge equal to the lesser of: (a) one and one-half percent (1.51/o) per
month, compounded, or (b) the maximum amount allowed by
applicable law, as applied against the past due amounts. A "Disputed"
amount is one for which Customer has given MCI written notice,
adequately supported by bona fide explanation and documentation.
Any invoiced amount not Disputed within six (6) months of the
invoice date shall be deemed to be correct and binding on Customer.
Customer shall be liable for the payment of all fees and expenses,
including attorney's fees, reasonably incurred by MCI in collecting, or
attempting to collect, any charges owed hereunder.
12. Termination. Either party may terminate this Agreement for
Cause. As to payment of invoices, "Cause" means Customer's failure
to pay any invoice (excluding Disputed amounts) within thirty (30)
days after the invoice date, which failure has not been cured within ten
(10) days of receiving notice of it. For all other matters, "Cause"
means a breach by the other party of any material provision of this
Agreement which has not been cured within thirty (30) days after
delivery of notice. MCI may discontinue Service (without limitation)
immediately, without notice, if interruption of Service is necessary to
prevent or protect against fraud or otherwise protect MCI's personnel,
facilities or services.
13. Disconnection of Service. Customer shall provide prior written
notice for the disconnection of Service, as follows. For Service
provided exclusively within the United States, Customer must provide
thirty (30) days written notice. For all other Service, Customer must
provide written notice either (a) of sixty (60) days or (b) equal to the
cancellation period required by third parties (such as PTTs) for the
non-U.S. Mainland portion of the Service Customer is canceling,
whichever is longer. Disconnection notices must be labeled
conspicuously "Disconnect Request." Customer should contact its
account representative or Customer Service if it does not receive
confirmation of the disconnection from MCI within five (5) business
days. Notwithstanding any such termination, Customer will remain
liable for any applicable early termination charges set forth in this
Agreement.
14. Confidential Information. Commencing on the date Customer
executes this Agreement and continuing for a period of three (3) years
from the termination of this Agreement, each party shall protect as
confidential, and shall not disclose to any third party, any Confidential
Information received from the disclosing party or otherwise
discovered by the receiving party while this Agreement is in effect,
including, but not limited to, the pricing and terms of this Agreement,
and any information relating to the disclosing partiys technology,
business affairs, and marketing or sales plans (collectively the
"Confidential Information"). The parties shall use Confidential
Information only for the purpose of this Agreement. The foregoing
restrictions on use and disclosure of Confidential Information do not
apply to information that: (a) is in the possession of the receiving party
at the time of its disclosure and is not otherwise subject to obligations
of confidentiality; (b) is or becomes publicly known, through no
wrongful act or omission of the receiving party; (c) is received without
restriction from a third party free to disclose it without obligation to
the disclosing party; (d) is developed independently by the receiving
party without reference to the Confidential Information, or (e) is
required to be disclosed by law, regulation, or court or governmental
order.
15. Disclaimer of Warranties. EXCEPT AS SPECIFICALLY
SET FORTH IN THIS AGREEMENT, MCI MAKES NO
WARRANTIES, EXPRESS OR IMPLIED, AS TO ANY MCI
SERVICES, RELATED PRODUCTS, EQUIPMENT, SOFTWARE
OR DOCUMENTATION. MCI SPECIFICALLY DISCLAIMS
ANY AND ALL IMPLIED WARRANTIES, INCLUDING
WITHOUT LIMITATION ANY IMPLIED WARRANTIES OF
MERCHANTABILITY, FITNESS FOR A PARTICULAR
PURPOSE, OR TITLE OR NONINFRINGEMENT OF THIRD
PARTY RIGHTS.
16. Disclaimer of Certain Damages. NEITHER PARTY SHALL
BE LIABLE TO THE OTHER FOR ANY INDIRECT,
CONSEQUENTIAL, EXEMPLARY, SPECIAL, INCIDENTAL OR
PUNITIVE DAMAGES, INCLUDING WITHOUT LIMITATION
LOSS OF USE OR LOST BUSINESS, REVENUE, PROFITS, OR
GOODWILL, ARISING IN CONNECTION WITH THIS
AGREEMENT, UNDER ANY THEORY OF TORT, CONTRACT,
INDEMNITY, WARRANTY, STRICT LIABILITY OR
NEGLIGENCE, EVEN IF THE PARTY KNEW OR SHOULD
HAVE KNOWN OF THE POSSIBILITY OF SUCH DAMAGES.
17. Limitation of Liability. THE TOTAL LIABILITY OF MCI
TO CUSTOMER IN CONNECTION WITH THIS AGREEMENT,
FOR ANY AND ALL CAUSES OF ACTIONS AND CLAIMS,
INCLUDING, WITHOUT LIMITATION, BREACH OF
CONTRACT, BREACH OF WARRANTY, NEGLIGENCE,
STRICT LIABILITY, MISREPRESENTATION AND OTHER
TORTS, SHALL BE LIMITED TO THE LESSER OF: (A) DIRECT
DAMAGES PROVEN BY CUSTOMER; OR (B) THE AMOUNT
PAID BY CUSTOMER TO MCI UNDER THIS AGREEMENT
FOR THE SIX (6) MONTH PERIOD PRIOR TO ACCRUAL OF
THE MOST RECENT CAUSE OF ACTION. NOTHING IN THIS
SECTION SHALL LIMIT MCI'S LIABILITY: (A) IN TORT FOR
ITS WILLFUL OR INTENTIONAL MISCONDUCT; OR (B) FOR
CONFIDENTIAL
BODILY INJURY OR DEATH PROXIMATELY CAUSED BY
MCI'S NEGLIGENCE; OR (C) LOSS OR DAMAGE TO REAL
PROPERTY OR TANGIBLE PERSONAL PROPERTY
PROXIMATELY CAUSED BY MCI'S NEGLIGENCE.
18. Assignment. Either party may assign this Agreement or any of
its tights hereunder to an affiliate or successor without the prior
written consent of the other party, provided that if Customer assigns
this Agreement to an affiliate or successor, then such affiliate or
successor must meet MCI's creditworthiness standards. Any
attempted transfer or assignment of this Agreement by either party not
in accordance with the terms of this Section shall be null and void.
19. Service Marks. Trademarks and Name. Neither MCI nor
Customer shall: (a) use any service mark or trademark of the other
party; or (b) refer to the other party in connection with any advertising,
promotion, press release or publication unless it obtains the other
parry's prior written approval.
20. Governing Law. This Agreement shall be governed by the laws
of the State of New York without regard to its choice of law
principles. Non-U.S. Services shall be subject to applicable local laws
and regulations in any countries where such Services originate or
terminate, including applicable locally filed Tariffs.
21. Notice. All notices, requests, or other communications
(excluding invoices) hereunder shall be in writing and either
transmitted via overnight courier, electronic mail, hand delivery or
certified or registered mail, postage prepaid and return receipt
requested to the parties at the following addresses. Except as
otherwise provided, notices will be deemed to have been given when
received. Customer's notice address is provided on Page I of this
Agreement unless otherwise noted.
To MCI:
MCI Communications Services, Inc
20955 Stone Oak Parkway
San Antonio, TX 78258
Attn: Customer Service
Email: noticenamci.com
And to:
MCI Communications Services, Inc
1945 Old Gallows Road
Vienna, VA 22182
Attn: Law and Public Policy
22. Acceptable Use. Use of MCI's hrtemet Service(s) and related
equipment and facilities must comply with the then -current version of
the MCI Acceptable Use Policy ("Policy) for the countries from
which Customer uses them (see www.mci.com/tenns). MCI reserves
the right to suspend or terminate Internet Service effective upon notice
for a violation of the Policy. Customer will indemnify and hold
harmless MCI from any losses, damages, costs or expenses resulting
from any third -party claim or allegation that if true, would constitute a
violation of the Policy. Each party will promptly notify the other of
any such claim
23. Domain Names. Customer will indemnify MCI for cost or
liability arising from Customer's use of any domain name registered
or administered on Customer's behalf that violates the service mark,
trademark or other intellectual property rights of any third party.
Customer irrevocably waives any claims against MCI that may arise
from the acts or omissions of domain name registries, registrars or
other authorities. Any violation of this Section is deemed a material
breach establishing Cause for termination.
24. Entire Agreement. This Agreement (and any Attachments and
other documents incorporated herein by reference) constitutes the
entire agreement between the parties with respect to the Services
ordered under this Agreement and supersedes all other
representations, understandings or agreements that are not expressed
herein, whether oral or written. Except as otherwise set forth herein,
no amendment to this Agreement shall be valid unless in writing and
signed by both parties. Any requirement for a signature in this
Agreement or any Amendment may be satisfied by facsimile
transmission of an original signature.
412812005 MSA
CONFO MTIAL
ATTACHMENT A
Services. For the following Services, Customer shall pay the applicable rates and receive the applicable discounts listed below, if any. Customer shall
not be eligible to receive any other additional discounts, promotions and/or credits (Tariffed or otherwise). For services that receive a discount off of the
Guide / Tariff rates, any change in the Guide / Tariff rates will be reflected in the invoice for the next monthly billing cycle. For services that receive a
postalized rate which fluctuates with changes in the Guide / Tariff, those rates will be reviewed on the first day of January during each calendar year of
the Term, and adjusted by an amount equal to the same percentage by which the corresponding standard Guide / Tariff rates were adjusted during the
immediately preceding calendar year. For services with fixed rates, the rates shall remain fixed for the Term. For services and charges not specifically
set forth in this Attachment, Customer shall pay MCI's standard Guide / Tariff rates or charges for the applicable service.
Interstate Outbound Voice Service (Option 3), including interstate Card Service. MCI interstate outbound voice services ("Outbound Voice
Service ") provided pursuant to this Attachment are governed by the Guide provisions relating to Voice Service. The following rates per minute for
interstate Outbound Voice Service will be fixed for the Term:
ORIGINATION
TERMINATION
LOCAL
DEDICATED
SWITCHED
LOCAL
$0.0250
$0.0250
$0.0325
DEDICATED
$0.0250
$0.0250
$0.0325
SWITCHED
$0.0475
$0.0475
$0.0475
Interstate Inbound Voice Service (Option 3). MCI interstate inbound voice services ("Inbound Voice Service") provided pursuant to this Attachment
are governed by the Guide provisions relating to Voice Service. The following rates per minute for Interstate Inbound Voice Service will be fixed
for the Term:
ORIGINATION
TERMINATION
LOCAL
DEDICATED
SWITCHED
LOCAL
$0.0250
$0.0250
$0.0295
SWITCHED
$0.0295
$0.0295
$0.0475
Intrastate Outbound. inbound. and Calling Card Service (Option 3). MCI intrastate outbound and inbound services provided pursuant to this
Attachment are governed by the Guide provisions and applicable Tariffs relating to MBSII, as supplemented by this Attachment. Customer will pay
dhe following per minute rates, which are fixed for the Term, for domestic intrastate outbound (based on origination type), inbound (toll free) usage
(based on termination type), and calling card usage (based on switched origination). Other long distance rates and charges are set forth in the applicable
Tariffs. Customer will receive the 2 Year Term. The following rates are postalized.
Outbound
ORIGINATION
TERMINATION
LOCAL
DEDICATED
SWITCHED
LOCAL
$0.0210
$0.0210
$0.0450
DEDICATED
$0.0210
$0.0210
$0.0450
SWITCHED
$0.0490
$0.0490
$0.0675
Inbound
ORIGINATION
TERMINATION
LOCAL
DEDICATED
SWITCHED
LOCAL
$0.0210
$0.0210
$0.0579
SWITCHED
$0.0579
$0.0579
$0.0932
International Voice Pricing (Inbound and Outbound (Guide Type 18). For International Outbound and Inbound Voice Service, Customer will
receive a thirty percent (30%) discount off of MBS II rates.
Directory Assistance (interstate and Intrastate). Customer shall receive Directory Assistance services at the fixed rate of twenty five cents ($0.25)
per call, in lieu of the standard Directory Assistance rate.
Calline Card. For the term of the contract, Customer shall pay the following rates.
Domestic Calling Card Surcharge $0.15
International Calling Card Surcharge $0.75
CONFIDENTIAL
Domestic US Access. MCI will provide a total of one (1) TI at NPANXX 970221 for the Monthly Recurring Charge of one hundred fifty dollars
($150.00). Customer will notify MCI in writing of the 1 Tl where the Monthly Recurring Charge is one hundred fifty dollars.
For all other Off -Net (Type 3) Access, Customer shall receive at fifteen percent (15%) discount off of MBS II rates.
Miscellaneous Feature Charges. For the Term of the contract the following charges are waived.
Toll -Free DAL Monthly Recurring Charges
Toll -Free CBL Monthly Recurring Charges
Move/Add/Change Charges
Install Waiver. MCI shall waive all standard, non -expedited MCI domestic installation charges. PTT and other Third Party charges are not eligible to
be waived. Also, Conferencing related charges, Enhanced Call Routing (ECR) related charges, managed services installs, hosting services installs, CPE
installs, MCI International, eDSL, and SkyTel installation charges may not be waived via this waiver.
Oua6fving Conditions.
a. Pricing is only available to state government entities operating within the state of Colorado.
b. Pricing is valid only for existing MCI customers.
c. To receive this pricing, Customer must utilize MCI for 100% of their Long Distance traffic.
CONFIDENTIAL