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HomeMy WebLinkAboutQWEST - CONTRACT - CONTRACT - LOYAL ADVANTAGE AGREEMENTQWEST LOYAL ADVANTAGETm AGREEMENT indemnifying party; provided, however, the foregoing indemnification will not apply to any claims made by employees that are covered under applicable workers' compensation laws. Furthermore, to the extent permitted under law, Customer will defend and indemnify Qwest, its Affiliates, agents, and contractors against all third party claims, liabilities, costs, and expenses, including reasonable attorneys' fees, arising from or related to the use, modification or resale of the Services by Customer or End Users, including any violation of the AUP. 9. Voice and Data Services. This Section applies solely to Voice and Data Services. (a) Services Schedule; Tariff. The Services Schedule and Tariffs applicable to Voice and Data Services are incorporated into this Agreement by reference and made a part of this Agreement. Qwest may change the Services Schedule or a Tariff at any time and such change will be effective upon being posted in the Services Schedule or included in the Tariff. Customer represents and warrants that as of the Effective Date, Customer has accessed, read, and understands the Services Schedule. Customer represents that it has received from a Qwest competitor an offer comparable to the offer in this Agreement for the Voice and Data Services. (b) CPNI. Qwest will have access to certain CPNI. Under federal law, Customer has a right to, and Qwest has a duty to protect, the confidentiality of CPNI. CPNI may be useful to tailor services to Customer and to enhance Qwest's ability to meet Customer's needs. Customer expressly authorizes Qwest, its Affiliates, or its sales representatives to use CPNI to determine if Customer could benefit from other services offered by Qwest and its Affiliates, and market them to Customer. Customer may withdraw its authorization at any time by informing Qwest in writing. Any such withdrawal will not affect the quality of Service provided hereunder. 10. AUP. This Section applies solely to Internet Services. All use of the Internet Services will comply with the Qwest Acceptable Use Policy ("AUP"), which is posted at htto://www.ciwest.com/legal!. The AUP is incorporated by reference and made a part of this Agreement. Qwest may change the AUP at any time and such change will be effective upon posting to the website. Customer represents and warrants that as of the Effective Date, Customer has accessed, read, and understands the AUP. 11. Termination. Customer may terminate: (a) a Service in accordance with the applicable service level agreement, Service Exhibit, Services Schedule or Tariff, or (b) this Agreement for Cause; provided that for Service related claims, Cause exists where there is cause to terminate all or substantially all of the Services (pursuant to subsection (a)). Qwest may (c) suspend all or any part of the Services and/or terminate this Agreement for Cause or (d) immediately suspend an Internet Service for any violation of the AUP. Customer will remain liable for charges accrued but unpaid as of the termination date. If, prior to the conclusion of the Term, this Agreement is terminated either by Qwest for Cause or by Customer for any reason other than Cause, then Customer will also be liable for: (a) an Early Termination Charge; (f) Service cancellation charges that apply when this Agreement is terminated before the expiration of the individual service term for that Service; and (g) cancellation charges incurred by Qwest from any third party provider. 12. Confidentiality; Publicity. Except to the extent required by an open records act or similar law, neither party will, without the prior written consent of the other party: (a) issue any public announcement regarding, or make any other disclosure of the terms of, this Agreement or use the name or marks of the other party or its Affiliates; or (b) disclose or use (except as expressly permitted by, or required to achieve the purposes of, this Agreement) the Confidential Information of the other party. Such consent may only be given on behalf of Qwest by, its Legal Department. A party may disclose Confidential Information if required to do so by a governmental agency, an open records act or similar law, by operation of law, or if necessary in any proceeding to establish rights or obligations under this Agreement, provided that the disclosing party gives the non -disclosing party reasonable prior written notice. 13. Dispute Resolution; Governing Law. The parties shall attempt in good faith to resolve through negotiation any dispute, claim or controversy arising out of or related to this Agreement. Either party may initiate negotiations by providing a written notice to the other party setting forth the dispute and the relief requested. If the parties are unable to resolve such dispute within a reasonable period of time, either party may commence a civil action in a court of competent jurisdiction located, at the option of the moving party, in either: (a) the place of business of the other party, as indicated in the address to which required notices must be sent; or (b) in Denver, Colorado. To the extent the Communications Act of 1934 does not govern, this Agreement shall be governed by the laws of the state in which the Customer's principal office is located without regard to its choice of law principles. Notwithstanding the above, any action by Qwest to collect payment for services may be commenced in Denver, Colorado. Each party hereby expressly waives its right to a trial by jury and consents to the jurisdiction of such courts for the purposes described in this Section. Such court shall not award any indirect, incidental, special, reliance, punitive, or consequential damages, including damages for lost profits. Each party shall bear the cost of preparing and presenting its own claims and/or defenses (including its own attorneys' fees). 14. Notices. (a) Required Notices. Except as otherwise provided herein, all required notices must be in writing and sent to Qwest at 1801 California Street, Suite 900, Denver, Colorado 80202; Facsimile #: (888) 778-0054; Attn.: Legal Department, and to Customer at its then current address as reflected in Qwest's records; Attn.: General Counsel or other person designated for notices. Except as otherwise provided herein, all notices will be deemed given: (i) when delivered in person to the recipient named above; (ii) three business days after delivered via regular U.S. Mail; (iii) when delivered via overnight courier mail; or (iv) when delivered by facsimile so long as duplicate notification is also sent in the manner set forth in subsection (ii). (b) Service Termination Notices. Customer's notice of termination for Services must be sent via mail, facsimile or e-mail to: Qwest, Attn.: Dublin Service Center, GBM Disconnects, 6000 Parkwood Place, 5t" Floor Disconnect Center, Dublin, OH 43017 FAX: 866.887.6633, e-mail: GBMdisconnects(cDgwest.com. 15. Non -Appropriations. Customer intends to continue this Agreement for its entire Term and to satisfy its obligations hereunder. For each fiscal period for Customer: (a) Customer agrees to include in its budget request appropriations sufficient to cover Customer's obligations under this Agreement; (b) Customer agrees to use all reasonable and lawful means to secure these appropriations, including but not limited to applying for Universal Service Fund Discounts as described in the Federal Communications Commission Docket No. 96-45; (c) Customer agrees it will not use non -appropriations as a means of terminating this Agreement in order to acquire functionally equivalent products or services from a third party. Customer reasonably believes that sufficient funds to discharge its Page 3 Copyright © 2004 Qwest. All Rights Reserved CONFIDENTIAL v1.080204 QWEST LOYAL ADVANTAGE T" AGREEMENT obligations can and will lawfully be appropriated and made available for this purpose. In the event that Customer is appropriated insufficient funds, by appropriation, appropriation limitation or grant, to continue payments under this Agreement and has no other funding source lawfully available to it for such purpose (as evidenced by notarized documents provided by Customer and agreed to by Qwest), Customer may terminate this Agreement by giving Qwest not less than 30 days prior written notice. Upon termination and to the extent of lawfully available funds, Customer will remit all amounts due and all costs reasonably incurred by Qwest through the date of termination. 16. General. Customer may not assign this Agreement or any of its rights or obligations under this Agreement without the prior written consent of Qwest, which consent will not be unreasonably withheld. This Agreement is intended solely for Qwest and Customer and it will not benefit or be enforceable by any other person or entity, including without limitation, End Users. If any term of this Agreement is held unenforceable, such term will be construed as nearly as possible to reflect the original intent of the parties and the remaining terms will remain in effect. Neither party's failure to insist upon strict performance of any provision of this Agreement will be construed as a waiver of any of its rights hereunder; provided, however, if Customer fails to comply with the timelines in a service level agreement for claiming its rights to credit and/or termination, Customer will be deemed to have waived such rights. All terms of this Agreement that should by their nature survive the termination of this Agreement will so survive. In the event of a conflict in any tens of any documents that govem the provision of Services hereunder, the following order of precedence will apply in descending order of control: the Tariff, a Service Exhibit, this Agreement, Services Schedule, and any Order Form. Neither party will be liable for any delay or failure to perform its obligations hereunder if such delay or failure is caused by a Force Majeure Event. This Agreement, and any applicable Service Exhibit, Services Schedule and any Order Forms accepted hereunder constitute the entire agreement between Customer and Qwest with respect to the subject matter hereof, and supersede all prior oral or written agreements or understandings relating to the subject matter hereof. Except for Services Schedule, Tariff, AUP, or Service modifications initiated by Qwest, all amendments to this Agreement must be in writing and signed by the parties' authorized representatives. Qwest reserves the right at any time to reject any handwritten change to this Agreement. 17. Definitions. "Affiliate" means any entity controlled by, controlling, or under common control with a party. "Cause" means the failure of a party to perform a material obligation under this Agreement, which failure is not remedied: (a) in the event of a payment default by Customer, within five days of separate written notice from Qwest notifying Customer of such default; or (b) in the event of any other material breach, within 30 days of written notice (unless a different notice period is specified in this Agreement). "Confidential Information" means any information that is not generally available to the public, whether of a technical, business or other nature and that: (a) the receiving party knows or has reason to know is confidential, proprietary or trade secret information of the disclosing party; and/or (b) is of such a nature that the receiving party should reasonably understand that the disclosing party desires to protect such information against unrestricted disclosure. Confidential Information will not include information that is in the public domain through no breach of this Agreement by the receiving party or is already known or is independently developed by the receiving party. "CPE" means any customer equipment, software, and/or other materials of Customer used in connection with the Service. "CPNI" means confidential billing and usage -related information about the quantity, technical configuration, type, destination, location and amount of use of Customer's telecommunications services. "Early Termination Charge" means an amount equal to 35% of the average monthly charges billed under this Agreement through the date of termination multiplied by the number of months remaining in the Term. "End Users" means Customer's members, end users, customers or any other third parties who utilize or access the Services or the Qwest network via the Services provided hereunder. "Force Majeure Event" means an unforeseeable event beyond the reasonable control of that party, including without limitation: act of God, fire, flood, labor strike, sabotage, fiber cut not caused by Qwest, acts of terror, material shortages or unavailability, government laws or regulations, war or civil disorder, or failures of suppliers of goods and services. "Internet Services" means Internet Protocol -based Services and any associated local access provided under this Agreement and Services Exhibits that are not governed by a Services Schedule or Tariff. "Order Form" means order request forms issued by Qwest. "Services Schedule" means the Qwest Rate and Services Schedules Interstate No. 5 and International No. 2 found at http://www.gwest.com and at 1801 California Street, 1st Floor Reception Area, Denver, CO. "Tariff" means a tariff of Qwest and/or its Affiliates. "Taxes" means foreign, federal, state and local taxes, surcharges, and other similar charges. "Voice and Data Services" means Services and any associated local access provided under this Agreement that are governed by a Services Schedule or Tariff. Page 4 Copyright © 2004 Qwest. All Rights Reserved CONFIDENTIAL v1.080204