No preview available
HomeMy WebLinkAboutC11-078 CenturyLink Custom Cover Agreement No. SPR -14710 Date: February 4, 2011 Page 1 of 30 CenturyLink Custom Cover Agreement Customer Name: EAGLE COUNTY GOVERNMENT Address: 500 Broadway St. Eagle, CO 81632 This CenturyLink Custom Cover Agreement (the "Agreement ") between CENTURYLINK SALES SOLUTIONS, INC. as contracting agent on behalf of the applicable CenturyLink affiliated entities providing the Products and Services ( "CenturyLink ") and EAGLE COUNTY GOVERNMENT ( " Customer ") establishes the terms and conditions governing CenturyLink provision of the Products and Services priced in this Agreement. This Agreement and any information concerning its pricing, terms and conditions are CenturyLink's proprietary information and the term of the parties' nondisclosure agreement, if any, is extended to be coterminous with the Agreement Term. All capitalized terms not otherwise defined in this Agreement will have the meanings set forth in the applicable Attachment. EMBARQ and CenturyTel have joined to create a new communications company — CenturyLink. For an interim period until all work is completed to update systems and platforms related to the companies' combination, the names EMBARQ and CenturyTel may be used in association with the products and services provided by CenturyLink. As a result, Customer may see references in this Agreement to EMB Q or CenturyTel products and services and terms and conditions that continue to use the EMBARQ and Century name. 1. TERM. This Agreement will be for a term of 60 months ( "Agreement Term ") starting on the date all parties have signed this Agreement ( "Effective Date "). CenturyLink will not accept Orders after expiration of the Agreement Term, but the Agreement will continue to apply to any unexpired Orders properly placed during the Agreement Term. The Order Term for a particular Product or Service is defined in the applicable attachment. 2. PRODUCTS AND SERVICES ATTACHMENTS. 2.1 Products and Services. CenturyLink will provide to Customer the Products and Services • identified in the following Attachments attached and incorporated by this reference. The name of the CenturyLink operating company providing Products and Services to Customer is listed in the Attachment. Attachment A: RESERVED Attachment B: RESERVED Attachment C: Nontariffed Business Products and Services Attachment D: Long Distance Business Services 2.2 Terms and Conditions. CenturyLink provides Products and Services under terms and conditions incorporated by reference in the applicable Attachment. 2.3 Purchase Orders. If expressly permitted under the applicable Attachment, CenturyLink will accept Customer- issued purchase orders, which will be subject to this Agreement. 2.4 Termination. If Customer gives notice of cancellation or termination, disconnects any portion of a Service or otherwise breaches this Agreement resulting in the termination of Service before the end of an Order Term or any subsequent renewal, termination liability will apply as described in the applicable Attachment. If no termination liability is specified in the applicable Attachment, Customer will be liable for 50% of the monthly payments that would otherwise remain in the Order Term. 3. RATES AND CHARGES. Customer will pay the rates and charges set forth in the applicable Attachment. Rates do not include applicable local, state, or federal taxes or surcharges that CenturyLink may bill Customer. DM 339559v1 CENTURYLINK CONFIDENTIAL & PROPRIETARY INFORMATION v.07.10 Oil q)ni No. SPR -14710 Date: February 4, 2011 Page 2 of 30 CenturyLink Custom Cover Agreement Customer Name: EAGLE COUNTY GOVERNMENT Address: 500 Broadway St. Eagle, CO 81632 4. QUALIFICATIONS AND CONDITIONS. 4.1 Qualificationsr. To receive pricing under this Agreement, Customer must meet the following Qualifications on the Effective Date. If Customer does not meet these Qualifications, Century Link may terminate this Agreement. A. County offices must be located in Eagle County, CO. 4.2 Conditions. During each billing month of the Agreement Term, Customer must meet the following Conditions to receive all benefits under this Agreement. If Customer does not meet any one of these Conditions, CenturyLink may adjust Customer's Services Charges or terminate this Agreement. A. County offices must be located in Eagle County, CO. 5. UNIFORM RESOURCE LOCATORS (URLs). References to URLs in this Agreement include any successor URLs designated by Century Link. 6. PRICING EXPIRATION. To become effective, this Agreement must be: (a) signed by an authorized Customer representative; (b) delivered to Century Link on or before December 30, 2010; and (c) signed by a Century Link officer or authorized designee. Alterations to this Agreement are not valid unless accepted in writing by both parties. 7. TAXPAYER BILL OF RIGHTS (TABOR). Notwithstanding anything to the contrary contained in this Agreement, Customer shall have no obligations under this Agreement after, nor shall any payments be made to Century Link in respect of any period after, December 31st of any fiscal year, without an appropriation therefore by County in accordance with a budget adopted by the Board of County Commissioners in compliance with the provisions of Article 25, Title 30 of the Colorado Revised Statutes, the Local Government Budget Law (C.R.S. 29- 1 -101 et.seq.) and the TABOR Amendment (Colorado Constitution, Article X, Sec. 20). CENTURYLINK SALES SOLUTIONS, INC. EAGLE COUNTY GOV RNMENT I L BY( ∎G ��t ���� B : C Y ..f Name: •. A./ Name: i Title: eaJ 5'A' (S 7 e 0 L Title: /, Date: 2/7//// Date. S. I I Address: O. ,$ax z 38510 Address: V 0 .1 4 BO 441E , C /G 3 / LAW G SRA' DM 339559v1 CENTURYLINK CONFIDENTIAL & PROPRIETARY INFORMATION v.07.10 No. SPR -14710 Date: February 4, 2011 Page 3 of 30 CenturyLink Custom Cover Agreement Customer Name: EAGLE COUNTY GOVERNMENT Address: 500 Broadway St. Eagle, CO 81632 ATTACHMENT A RESERVED DM 339559v1 CENTURYLINK CONFIDENTIAL & PROPRIETARY INFORMATION v.07.10 No. SPR -14710 Date: February 4, 2011 Page 4 of 30 CenturyLink Custom Cover Agreement Customer Name: EAGLE COUNTY GOVERNMENT Address: 500 Broadway St. Eagle, CO 81632 ATTACHMENT B RESERVED DM 339559v1 CENTURYLINK CONFIDENTIAL & PROPRIETARY INFORMATION v.07.10 No. SPR -14710 Date: February 4, 2011 Page 5 of 30 CenturyLink Custom Cover Agreement Customer Name: EAGLE COUNTY GOVERNMENT Address: 500 Broadway St. Eagle, CO 81632 ATTACHMENT C NONTARIFFED BUSINESS PRODUCTS AND SERVICES 1. PRODUCTS AND SERVICES. CenturyLink will provide to Customer the Products and Services listed in the tables below (each, a "Price Table "). Services are purchased for the specific term for the particular Service ordered (each, an "Order Term "), as listed in the Price Table. Each Order Term begins on the first day of the first billing month after CenturyLink installs and makes that Service available to Customer. If Customer continues to receive a Service after expiration of the Service's applicable Order Term, CenturyLink will provide that Service at its then - current list pricing and then - current terms and conditions, unless the parties otherwise agree in writing. 2. TERMS AND CONDITIONS. CenturyLink provides the Products and Services listed in this Attachment under the Standard Terms and Conditions for Communications Services and CenturyLink Local Government Customer Annex attached as Exhibits 1 and 2, respectively, to this Agreement and relevant Product or Service - specific terms and conditions listed below. 2.1. IP and Data Transport Services. A. Intentionally omitted. 2.2. Maintenance, Managed, Professional, and Other Value -Added Services. B. Intentionally omitted. 2.3 Equipment and Software. A. During the Agreement Term, CenturyLink and Customer will add Equipment and Software by written amendments to the Agreement executed by authorized representatives of the parties under the terms and conditions specified in Section 2.3.0 below. The table below lists the Equipment and Software to be purchased by Customer and the CenturyLink entity(ies) providing those Products. Type of Product CenturyLink Entity Providing the Product Equipment or Software as CenturyTel of Eagle, Inc. listed in each amendment B. In addition to the Standard Terms and Conditions for Communications Services and CenturyLink Local Government Customer Annex, CenturyLink provides Equipment and Software under the Equipment Sales Product Annex attached as Exhibit 3. In addition, the following vendor - specific terms and conditions posted to http: // about .centurylink.com /legal/rates conditions.html are incorporated by reference to the extent applicable: the Nortel Networks Site Administration Tool for ISM Transfers Services Annex; the Nortel Networks Software Release Subscription Annex; and the Avaya Software License for Legacy Nortel Networks Products Annex. 3. PRICE TABLES FOR EQUIPMENT AND SOFTWARE. Shipping/Installation Non - Recurring Address Type of Product Per Unit Price _ Charge 500 Broadway Eagle, CO As listed in each As listed in each As listed in each 81632 amendment amendment amendment DM 339559v1 CENTURYLINK CONFIDENTIAL & PROPRIETARY INFORMATION v.07.10 No. SPR -14710 Date: February 4, 2011 Page 6 of 30 CenturyLink Custom Cover Agreement Customer Name: EAGLE COUNTY GOVERNMENT Address: 500 Broadway St. Eagle, CO 81632 3.1 Per Unit Price. CenturyLink will sell equipment, software, associated materials, and applicable installation services identified in the table above ( "Products "), at the per unit price listed for each Product. 4.2 Non - Recurring Charges. CenturyLink will charge Customer the non - recurring charges listed above, including charges related to CenturyLink labor and shipping of the Products to Customer. 4.3 Additional Charges. Rates do not include applicable local, state, or federal taxes or surcharges that CenturyLink may bill Customer related to the Products. 4.4 Additional Payment Requirements. CenturyLink reserves the right to require Customer's payment of the amounts listed above as described below: Down Payment Due 0.00% Amount Due Upon Delivery of 0.00% Products Amount Due Upon Customer 100.00% Acceptance of Products 5. PURCHASE ORDERS. This Agreement controls over any Customer - issued purchase order, and any terms or conditions contained in a Customer - issued purchase order or other Customer ordering document will have no force or effect. DM 339559v1 CENTURYLINK CONFIDENTIAL & PROPRIETARY INFORMATION v.07.10 No. SPR -14710 Date: February 4, 2011 Page 7 of 30 CenturyLink Custom Cover Agreement Customer Name: EAGLE COUNTY GOVERNMENT Address: 500 Broadway St. Eagle, CO 81632 ATTACHMENT D LONG DISTANCE BUSINESS SERVICES 1. CENTURYLINK ENTITY. Services described in this Attachment are provided by CenturyTel Long Distance LLC. 2. TERMS AND CONDITIONS. CenturyLink provides Long Distance business services under Standard Terms and Conditions for Communications Services and CenturyLink Local Government Customer Annex attached as Exhibits 1 and 2, respectively, to this Agreement and relevant Schedules and Tariffs incorporated by reference in this Attachment. 3. VOICE SERVICES. 3.1. Intentional omitted 4. DATA SERVICES. 4.1. Order Term. The CenturyLink entity(ies) listed above will provide to Customer the Data Services listed in the table below ( "Price Table "). These Services are purchased for the specific term for the particular Service ordered (each, an "Order Term "), as listed in the Price Table. Each Order Term begins on the first day of the first billing month after CenturyLink installs and makes that Service available to Customer. If Customer continues to receive a Service after expiration of the Service's applicable Order Term, CenturyLink will provide that Service at its then - current Schedule or List pricing and then - current terms and conditions, unless the parties otherwise agree in writing. CenturyLink will make the Services available only after its compliance with any state - specific regulatory filing requirements. 4.2. In addition to the Standard Terms and Conditions for Communications Services and CenturyLink Local Government Customer Annex, CenturyLink provides National Private Line Service under the CenturyTel National Private Line Annex incorporated by reference in this Attachment and attached as Exhibit 4 to this Agreement. 4.3. Price Table. Customer Billing Service/Installation Type of Service Order Monthly Non - Address Address Term Recurring Recurring Charge Charge 500 Broadway Eagle, 500 Broadway Eagle, CenturyTel National 60 Months $ 1050.90 $ 810 CO 81632 CO 81632 to El Jebel Private Line Service location - 20 Eagle County Dr., El Jebel, CO 81623 A. Monthly Recurring Charges ( "MRCs "). CenturyLink will charge Customer the MRCs for the Services described in the Price Table. Except as otherwise described in the Price Table, these rates will remain fixed for each Order Term identified above. Upon expiration of each Order Term, Customer must convert the rates for the affected Service to the then - current list rates, which are subject to change. B. Non - recurring Charges ( "NRCs "). CenturyLink may charge Customer NRCs related to the Services described in the Price Table. CenturyLink may assess any additional, special construction charges that may be required to provide the Services. Such special construction charges, if applicable, will be determined at the time of the Order. DM 339559v1 CENTURYLINK CONFIDENTIAL & PROPRIETARY INFORMATION v.07.10 No. SPR -14710 Date: February 4, 2011 Page 8 of 30 CenturyLink Custom Cover Agreement Customer Name: EAGLE COUNTY GOVERNMENT Address: 500 Broadway St. Eagle, CO 81632 C. Additional Charges. Rates do not include applicable local, state, or federal taxes, fees, or surcharges that CenturyLink may bill Customer. D. Additional Payment Requirements. If Customer is not able to establish a satisfactory credit rating with CenturyLink, CenturyLink, in its sole discretion, may require Customer to submit a deposit or make an advance payment in connection with obtaining or maintaining the Services. DM 339559v1 CENTURYLINK CONFIDENTIAL & PROPRIETARY INFORMATION v.07.10 No. SPR -14710 Date: February 4, 2011 Page 9 of 30 CenturyLink Custom Cover Agreement Customer Name: EAGLE COUNTY GOVERNMENT Address: 500 Broadway St. Eagle, CO 81632 EXHIBIT 1 These Standard Terms and Conditions are not applicable to services governed by Tariffs on file with the FCC or state regulatory authorities. Tariffs are located at http: // about .centurvlink.com /leaal/rates conditions.html. STANDARD TERMS AND CONDITIONS FOR COMMUNICATIONS SERVICES ( "STANDARD TERMS AND CONDITIONS ") 1. GENERAL. 1.1 Applicability. These Standard Terms and Conditions contain general provisions that apply to all retail business Products and Services that a CenturyLink - affiliated entity provides. "Agreement" means the terms and conditions under which Customer purchases Products and Services, including all attachments, these Standard Terms and Conditions, documents incorporated by reference, and all related Order(s). Other capitalized terms are defined in this document or in the applicable Schedules or Product and Service - specific Annexes. 1.2 Additional Terms and Conditions. Customer's purchase and use of Products and Services is also governed by product and service - specific terms and conditions found in the applicable Schedules and Product and Service - specific Annexes, posted to http: // about .centurvlink.com /legal/rates conditions.html (the "Rates and Conditions Website ")Error! Hyperlink reference not valid.. 1.3 Local Governments and Programs. A. Local Government Customers. Unless specified otherwise, purchases of Products or Services by local governmental entities also are subject to the Local Government Customer Annex posted to the Rates and Conditions Website. B. Universal Service Administrative Company Programs. Customers seeking funds through Universal Service Administrative Company programs such as the Schools and Libraries Program of the Universal Service Fund ( "E -Rate Program "), the Rural Health Care Program of the Universal Service Fund ( "RHC Program "), or state or local corollaries to the E -Rate Program or the RHC Program are subject to applicable program annexes posted to the Rates and Conditions Website. 1.4 Conflicts Provision. If a conflict exists among provisions within the Agreement, specific terms will control over general provisions, and negotiated or added terms, conditions or pricing will control over standardized, posted or non - negotiated terms, conditions and pricing. 2. TERM. 2.1 Agreement Term. The period set in the Agreement during which CenturyLink provides Products and Services to Customer is defined as the "Agreement Term." These Standard Terms and Conditions, relevant Schedules, and Product and Service - specific Annexes apply from the Effective Date until the Agreement Term expires or terminates. CenturyLink will not accept Orders for Products and Services after expiration of the Agreement Term, but these Standard Terms and Conditions, relevant Schedules, or Product and Service - specific Annexes will continue to apply to Orders properly placed during the Agreement Term. If Customer continues to use maintenance, managed, or professional Services following the termination or expiration of the Agreement Term or an Order issued during the Agreement Term for such Services, CenturyLink may, at its sole discretion, provide those Services on a time and material basis at CenturyLink's DM 339559v1 CENTURYLINK CONFIDENTIAL & PROPRIETARY INFORMATION v.07.10 No. SPR -14710 Date: February 4, 2011 Page 10 of 30 CenturyLink Custom Cover Agreement Customer Name: EAGLE COUNTY GOVERNMENT Address: 500 Broadway St. Eagle, CO 81632 then- current rates without applying any discounts or credits under the Agreement, but these Standard Terms and Conditions and the Time and Materials Product Annex (posted to the Rates and Conditions Website) will govern CenturyLink's provision of such Services. 2.2 Order Term. Customer purchases each Service for a specific term for the particular Service ordered (each, an "Order Term "). Each Order Term is listed in the Agreement and begins on the first day of the first billing month after CenturyLink installs and makes that Service available to Customer. If Customer continues to receive a Service after expiration of the Service's applicable Order Term, CenturyLink will provide that Service at its then - current list pricing and then - current Standard Terms and Conditions, relevant Schedules, and Product and Service - specific Annexes, unless the parties otherwise agree in writing. 3. CHARGES. 3.1 CenturyLink Charges. Customer will pay CenturyLink the rates and charges for Products and Services set forth in the Agreement and any Order under the Agreement, including all charges associated with establishing Customer's Products and Services or related to CenturyLink's installation or provisioning costs. Charges associated with establishing or provisioning Services may include nonrecurring charges described in applicable Schedules and Product and Service - specific Annexes. Examples of these nonrecurring charges are customer - initiated change requests, expedite charges, service charges, any construction- related charges, and liabilities imposed on CenturyLink by third parties, such as other local exchange carriers, as a result of ordering or providing facilities to operate Services. 3.2 Fixed Rates and Percentage Discounts. Except as expressly stated otherwise in the Agreement, rates and charges for a Product or Service that are stated as a flat or fixed recurring or non- recurring charge will not change during the applicable Order Term (for a Service) or Agreement Term (for a Product) if CenturyLink increases or decreases the list rate in a Schedule or price list. Rates and charges for a Product or Service not fixed in the Agreement will be based on current Schedules or price lists and may change during the Agreement Term. If pricing in the Agreement for a Service is stated as a percentage discount off of a Schedule rate or list price, that percentage discount is fixed for the applicable Order Term, but CenturyLink may modify the underlying rate or list price to which the percentage discount is applied on no less than one day's notice. Changes to Schedules are posted to the Rates and Conditions Website. 3.3 Rate Adjustments. CenturyLink may impose additional fees, charges or surcharges on Customer to recover amounts that CenturyLink is required or permitted by governmental or quasi - governmental authorities to collect, or pay to others in support of, or to comply with, statutory or regulatory programs, plus a commercially reasonable amount to recover the administrative costs associated with such charges or programs. The amount of these fees, charges, or surcharges may vary. These charges may include state and federal Carrier Universal Service Charges, compensation to payphone providers, International Mobile Termination Charges, E911, Telephone Relay Service, or charges assessed to CenturyLink for terminating or originating a call to wireless providers. 3.4 Taxes. A. Taxes Not Included. CenturyLink's rates and charges for Products and Services do not include taxes. Customer will pay all taxes, including, but not limited to, sales, use, gross receipts, excise, VAT, property, transaction, or other local, state, or national taxes or charges imposed on or based upon the provision, sale or use of Products and Services. DM 339559v1 CENTURYLINK CONFIDENTIAL & PROPRIETARY INFORMATION v.07.10 No. SPR -14710 Date: February 4, 2011 Page 11 of 30 CenturyLink Custom Cover Agreement Customer Name: EAGLE COUNTY GOVERNMENT Address: 500 Broadway St. Eagle, CO 81632 B. Withholding Taxes. Notwithstanding any other provision of the Agreement, if Customer is required by law to make a deduction or withholding from any amount due to CenturyLink, Customer must notify CenturyLink in writing. CenturyLink will then increase the gross amount of Customer's invoice so that, after Customer's deduction or withholding for taxes, the net amount paid to CenturyLink will not be less than the amount CenturyLink would have received without the required deduction or withholding. C. Exclusions. Customer will not be responsible for payment of: (1) CenturyLink's direct income taxes and employment taxes; and (2) any other tax to the extent that Customer demonstrates a legitimate exemption under applicable law. 4. BILLING AND PAYMENT. 4.1 Invoicing. A. Commencement of Invoicing. CenturyLink may begin invoicing Customer in full for rates and charges on the later of: (1) the date the Products or Services are installed and made available; or (2) the first day of the first bill cycle after the Effective Date. B. Delays. If CenturyLink cannot install or make available the Products or Services by the delivery date specified in the Order due to a Customer - caused delay, CenturyLink may bill Customer as of the delivery date specified in the Order, or if no date is specified, any time 30 days after the Effective Date. C. Recurring Services. For recurring Services and nonrecurring charges, CenturyLink bills fixed service charges in advance, and usage -based charges in arrears. D. Additional Invoice Information. Customer may make a written request to CenturyLink for additional invoice - related information, including duplicate invoices, to the extent such information is reasonably available in CenturyLink's sole discretion. CenturyLink may charge Customer for such information. Customer may only request information from CenturyLink for the 12 -month period preceding the date of Customer's written request. 4.2 Payment and Late Charges. Unless otherwise defined in the Agreement, Customer must pay all undisputed amounts by the due date listed on Customer's invoice, which may be up to 30 days from the date of the invoice. Customer's payments to CenturyLink must be in the form of electronic funds transfer (via wire transfer or ACH), cash payments (via previously- approved CenturyLink processes only), or paper check. Other than items subject to a bona fide dispute, CenturyLink may charge a late fee (up to the maximum rate allowed by law) or take other action to compel payment of past due amounts after written notice to Customer, including suspension or termination of Services, unless prohibited by applicable law or regulation. Service that is suspended or terminated for nonpayment may be subject to a reconnection charge. Customer may not offset disputed amounts from one invoice against payments due on the same or another account. CenturyLink's acceptance of late or partial payments (even those marked, "Paid in Full ") and late payment charges is not a waiver of its right to collect the full amount due. Customer's payment obligations include late charges and third party collection costs CenturyLink incurs, including reasonable attorneys' fees, if Customer fails to cure its breach of these payment terms. 4.3 Disputed Invoice Charges. If Customer disputes a charge in good faith, Customer may withhold payment of that charge if Customer makes timely payment of all undisputed charges within the DM 339559v1 CENTURYLINK CONFIDENTIAL & PROPRIETARY INFORMATION v.07.10 No. SPR -14710 Date: February 4, 2011 Page 12 of 30 CenturyLink Custom Cover Agreement Customer Name: EAGLE COUNTY GOVERNMENT Address: 500 Broadway St. Eagle, CO 81632 payment period described in Section 4.2, and provides CenturyLink with a written explanation of the reasons for Customer's dispute of the charge. Customer must cooperate with CenturyLink to promptly resolve any disputed charge. If CenturyLink determines, in good faith, that the disputed charge is valid, CenturyLink will notify Customer and, within five business days of receiving notice, Customer must pay the charge. 5. CREDIT APPROVAL. CenturyLink's provision of Products and Services is subject to CenturyLink's credit approval of Customer. Additionally during the Agreement Term, if Customer's financial circumstance or payment history becomes reasonably unacceptable to CenturyLink, CenturyLink may require adequate assurance of future payment as a condition of continuing CenturyLink's provision of Products and Services. Customer's failure to provide adequate assurances required by CenturyLink is a material breach of the Agreement. CenturyLink may provide Customer's payment history or other billing/charge information to any credit reporting agency or industry clearinghouse. 6. ORDERS. 6.1 Application. The terms and conditions in any Orders will have no force or effect other than to denote quantity and description of Products or Services, delivery destinations, delivery dates, Customer billing addresses, installation addresses, the Agreement under which the Order is issued, and any other information required by CenturyLink. Orders are binding only upon acceptance in writing by CenturyLink. CenturyLink will notify Customer of rejected Orders. Customer may cancel an Order at any time before CenturyLink initiates delivery of Products and Services listed in the Order or otherwise begins performance, but Customer must pay CenturyLink's costs resulting from Customer's cancellation, including costs specifically described in the applicable Schedule or Product and Service - specific Annexes. 6.2 Cancellation. CenturyLink will notify Customer of rejected Orders. Customer may cancel an Order at any time before CenturyLink delivers the Products and Services listed in the Order or begins its performance, but Customer must pay any actual costs CenturyLink incurs due to Customer's cancellation in addition to any amounts described in the applicable Product and Service - specific Annexes. 7. WARRANTIES. EXCEPT AS, AND ONLY TO THE EXTENT EXPRESSLY PROVIDED IN THE AGREEMENT, PRODUCTS AND SERVICES ARE PROVIDED "AS IS." CENTURYLINK DISCLAIMS ALL EXPRESS OR IMPLIED WARRANTIES, INCLUDING ALL WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, INFRINGEMENT, AND WARRANTIES RELATED TO EQUIPMENT, MATERIAL, SERVICES OR SOFTWARE. 8. EQUIPMENT AND SOFTWARE; CENTURYLINK- PROVIDED NETWORK MANAGEMENT. 8.1 Equipment or Software Not Provided by CenturyLink. Customer is responsible for any items not provided by CenturyLink, including installation, operation, and maintenance of such equipment or software and any equipment or software that impairs Product or Service quality or availability. Upon notice from CenturyLink of such impairment, Customer will promptly cure the problem. Customer will continue to pay CenturyLink for Products and Services during such impairment or related suspension. If the impairment interferes with the use of the CenturyLink- provided network by CenturyLink or third parties, CenturyLink, in its reasonable discretion, may suspend or disconnect the affected Products and Services without advance notice to Customer, although CenturyLink will provide advance notice where practical. Customer will not rearrange, disconnect, remove, or attempt to repair any CenturyLink- provided items. At Customer's request, CenturyLink will troubleshoot the impairment at CenturyLink's then - current time and materials rates. CenturyLink is not liable if a commercially reasonable change in Products or Services DM 339559v1 CENTURYLINK CONFIDENTIAL & PROPRIETARY INFORMATION v.07.10 No. SPR -14710 Date: February 4, 2011 Page 13 of 30 CenturyLink Custom Cover Agreement Customer Name: EAGLE COUNTY GOVERNMENT Address: 500 Broadway St. Eagle, CO 81632 causes equipment or software not provided by CenturyLink to become obsolete, require alteration, or perform at lower levels. 8.2 Calls via Customer's Equipment or Software. Customer is responsible for all charges, including any third -party charges, incurred for all types of calls, authorized or unauthorized, placed by or through Customer's equipment or software via any remote access feature, transferring capability, or call forwarding, even when such calls are placed fraudulently. Customer's responsibility for these charges applies in all instances, including if Customer purchased or leased such equipment or software by or through CenturyLink or purchased CenturyLink- provided maintenance for its equipment or software. To reduce Customer's exposure, Customer may install its own blocking techniques to stop such capabilities and calls. CenturyLink will neither install nor assist in the installation of such blocking techniques, and has no obligation to block these capabilities or liability if such calls are placed, including no liability for charges that Customer may incur. 8.3 Software License. A. Licensing Requirements. Where software is provided with a Product or Service, Customer is granted a non - exclusive and non - transferable license or sublicense to use the software, including any related documentation, solely to enable Customer to use the Products and Services in accordance with the applicable licensing requirements. Software licensing terms and conditions, including end -user licensing agreements and terms and conditions from CenturyLink's vendors, may be provided to Customer through click or shrink -wrap agreements. CenturyLink may suspend, block or terminate Customer's use of any software if Customer fails to comply with any applicable licensing requirement. B. Prohibitions. Customer is not granted any rights to use any software on behalf of third parties or related to time share or service bureau activities. No rights are granted to source code, and Customer will not reverse engineer, decompile, modify, enhance, copy, prepare derivative works, or reproduce any software. 8.4 Title to Software or Equipment. CenturyLink (or CenturyLink vendors, if applicable) retain title and property rights to CenturyLink- provided software and equipment (excluding Products sold to Customer under the Agreement), including copies, and any related patents, copyrights, trademarks, or IP addresses assigned to Customer. Upon termination or expiration of the Agreement or an applicable Order, Customer will surrender and immediately return the CenturyLink- provided equipment and software, including all copies, to CenturyLink or will provide CenturyLink access to reclaim such equipment and software. 8.5 Network Management. CenturyLink reserves the right to perform preventative maintenance and software upgrades to the CenturyLink- provided network at its sole discretion on a scheduled or as- needed basis. CenturyLink may charge Customer where additional technical limitations or CenturyLink must construct network facilities to provide Services to Customer. If software or equipment not provided by CenturyLink is connected to CenturyLink- provided network facilities, CenturyLink's obligations relate only to the Services under the Agreement. 9. USE OF NAME, SERVICE MARKS, TRADEMARKS. Neither party will use the name, service marks, trademarks, or carrier identification code of the other party or any of its Affiliates for any purpose without the other party's prior written consent. 10. CUSTOMER RESPONSIBILITIES. 10.1 Installation. Customer will reasonably cooperate with CenturyLink or its agents to install the Products and Services. Customer is responsible for damage to CenturyLink -owned Products and Services located on Customer premises, excluding reasonable wear and tear or damage caused by DM 339559v1 CENTURYLINK CONFIDENTIAL & PROPRIETARY INFORMATION v.07.10 No. SPR -14710 Date: February 4, 2011 Page 14 of 30 CenturyLink Custom Cover Agreement Customer Name: EAGLE COUNTY GOVERNMENT Address: 500 Broadway St. Eagle, CO 81632 CenturyLink. CenturyLink may refuse to install Products and Services or may discontinue and disconnect Products and Services without notice, if any condition on Customer's premises is unsafe or likely to cause injury to any person using Products and Services. Additional Customer responsibilities relating to a particular Product or Service may be defined in the applicable Schedules or Product and Service - specific Annexes. 10.2 Use of Products and Services. A. Acceptable Use Policy. If Customer purchases Products or Services that connect to the Internet, Customer must conform to the CenturyLink acceptable use policy posted to: http:// www .centurylink.com/Pages /AboutUs /Legal, as reasonably amended from time to time. B. Abuse and Fraud. Customer will not use Products or Services: (1) for fraudulent, abusive, unlawful or destructive purposes, including unauthorized or attempted unauthorized access to, or alteration, abuse or destruction of, information; or (2) in any manner that causes interference with CenturyLink's or another's use of the CenturyLink- provided network. Customer will cooperate promptly with CenturyLink to prevent third parties from gaining unauthorized access to the Products and Services via Customer's facilities. C. Resale and Lease Prohibitions. Except to the extent expressly permitted by state or federal law and regulations, Customer will not resell Products and Services. Customer will not lease Products or Services under any circumstances. 11. CONFIDENTIALITY AND PRIVACY. 11.1 Nondisclosure Requirements. If the parties have not executed a mutual nondisclosure agreement, this provision will govern their exchange of information. Each party will not disclose any Confidential Information (defined below) received from the other party, or otherwise discovered by the receiving party, to any third party, except as expressly permitted in the Agreement. This obligation will continue until two years after the Agreement expires or terminates. Confidential Information includes, but is not limited to, pricing and terms of the Agreement, and information relating to the disclosing party's technology, business affairs, trade secrets, development and research information, and marketing or sales plans (collectively the "Confidential Information "). The receiving party may disclose Confidential Information to its subsidiaries, Affiliates, agents and consultants with a need to know, if they are not competitors of the disclosing party and are subject to a confidentiality agreement at least as protective of the disclosing party's rights as this provision. The parties will use Confidential Information only for the purpose of performing under the Agreement or for the provision of other CenturyLink services. 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. The parties acknowledge that the receiving party's unauthorized disclosure or use of Confidential Information may result in irreparable harm. If there is a breach or threatened breach of the Agreement, the disclosing party may seek a temporary restraining order and injunction to protect its Confidential Information. This provision does not limit any other remedies available to either party. The party who breached or DM 339559v1 CENTURYLINK CONFIDENTIAL & PROPRIETARY INFORMATION v.07.10 No. SPR -14710 Date: February 4, 2011 Page 15 of 30 CenturyLink Custom Cover Agreement Customer Name: EAGLE COUNTY GOVERNMENT Address: 500 Broadway St. Eagle, CO 81632 threatened to breach its nondisclosure obligation under the Agreement will not raise the defense of an adequate remedy at law. 11.2 Privacy. CenturyLink's privacy policy, as amended from time to time, is available at http:// www. centurylink .com/Pages /AboutUs/Legal. The privacy policy includes information about CenturyLink's customer information practices and applies to the provisioning of Products and Services. 12. LIMITATIONS OF LIABILITY. 12.1 Direct Damages. Each party's maximum liability for damages caused by its failure(s) to perform its obligations under the Agreement is limited to: (A) proven direct damages for claims arising out of personal injury or death, or damage to real or personal property, caused by the party's negligent or willful misconduct; and (B) proven direct damages for all other claims arising out of the Agreement, not to exceed in the aggregate, in any 12 -month period, an amount equal to Customer's total net payments for the affected Products and Services purchased in the month preceding the month in which the injury occurred. Customer's payment obligations, Customer's liability for early termination charges, and the parties' indemnification obligations under the Agreement are excluded from this provision. 12.2 Consequential Damages. NEITHER PARTY WILL BE LIABLE FOR ANY CONSEQUENTIAL, INCIDENTAL, OR INDIRECT DAMAGES FOR ANY CAUSE OF ACTION, WHETHER IN CONTRACT OR TORT. CONSEQUENTIAL, INCIDENTAL, AND INDIRECT DAMAGES INCLUDE, BUT ARE NOT LIMITED TO, LOST PROFITS, LOST REVENUES, AND LOSS OF BUSINESS OPPORTUNITY, WHETHER OR NOT THE OTHER PARTY WAS AWARE OR SHOULD HAVE BEEN AWARE OF THE POSSIBILITY OF THESE DAMAGES. 12.3 Unauthorized Access and Hacking. Except for physical damage to Customer's transmission facilities or Customer premise equipment directly caused by CenturyLink's negligence or willful misconduct, CenturyLink is not responsible for unauthorized access to, or alteration, theft, or destruction of, Customer's data, programs or other information through accident, wrongful means or any other cause while such information is stored on or transmitted across CenturyLink- provided network facilities or Customer premise equipment. 12.4 Liability for Content. CenturyLink is not responsible for the content of any information transmitted, accessed, or received by Customer through CenturyLink's provision of the Products and Services. 13. INDEMNIFICATION. 13.1 Mutual Indemnification for Personal Injury, Death or Damage to Personal Property. Each party will indemnify and defend the other party, its directors, officers, employees, agents and their successors from and against all third party claims for damages, losses, liabilities, or expenses, including reasonable attorneys' fees, arising directly from performance of the Agreement and relating to personal injury, death, or damage to tangible personal property that is alleged to have resulted, in whole or in part, from the negligence or willful misconduct of the indemnifying party or its subcontractors, directors, officers, employees or authorized agents. 13.2 Customer Indemnification. Customer will indemnify and defend CenturyLink, CenturyLink's officers, directors, agents, and employees and their successors, against all third party claims for damages, losses, liabilities or expenses, including reasonable attorneys' fees, arising out of: DM 339559v1 CENTURYLINK CONFIDENTIAL & PROPRIETARY INFORMATION v.07.10 No. SPR -14710 Date: February 4, 2011 Page 16 of 30 CenturyLink Custom Cover Agreement Customer Name: EAGLE COUNTY GOVERNMENT Address: 500 Broadway St. Eagle, CO 81632 A. Customer's failure to obtain required permits, licenses, or consents necessary to enable CenturyLink to provide the Products and Services (e.g., landlord permissions or local construction licenses). This provision does not include permits, licenses, or consents related to CenturyLink's general qualification to conduct business; B. Customer's transmissions, or transmissions by parties authorized by Customer, of, information, data, or messages over the CenturyLink- provided network leading directly or indirectly to third party claims: (1) for libel, slander, invasion of privacy, infringement of copyright, and invasion or alteration of private records or data; (2) for infringement of patents arising from the use of equipment, hardware or software not provided by CenturyLink; and (3) based on transmission and uploading of information that contains viruses, worms, or other destructive media or other unlawful content; C. CenturyLink's failure to pay any tax to the extent that CenturyLink relied on Customer's claimed legitimate exemption under applicable law; D. Customer's breach of software licensing requirements; and E. Customer's failure to comply with the usage requirements in the Customer Responsibilities Section of these Standard Terms and Conditions. 13.3 CenturyLink Indemnification. CenturyLink will indemnify and defend Customer, Customer's officers, directors, agents, and employees and their successors against third party claims enforceable in the United States alleging that Services as provided infringe any third party United States patent or copyright or contain misappropriated third party trade secrets. But CenturyLink's obligations under this Section will not apply if the infringement or violation is caused by Customer's modification to CenturyLink- provided software, equipment or Services; combination of CenturyLink- provided services or products with other services or products; functional or other specifications that were provided by or requested by Customer; or Customer's continued use of infringing Services after CenturyLink provides reasonable notice to Customer of the infringement. For any third party claim that CenturyLink receives, or to minimize the potential for a claim, CenturyLink may, at its sole option, either: A. procure the right for Customer to continue using the Services; B. replace or modify the Services with comparable Services; or C. terminate the Services. 13.4 Rights of Indemnified Party. To be indemnified, the party seeking indemnification must promptly notify the other party in writing of the claim (unless the other party already has notice of the claim); give the indemnifying party full and complete authority, information and assistance for the claim's defense and settlement; and not, by any act, admission, or acknowledgement, materially prejudice the indemnifying party's ability to satisfactorily defend or settle the claim. The indemnifying party will retain the right, at its option, to settle or defend the claim, at its own expense and with its own counsel. The indemnified party will have the right, at its option, to participate in the settlement or defense of the claim, with its own counsel and at its own expense, but the indemnifying party will retain sole control of the claim's settlement or defense. 13.5 Remedies. The foregoing provisions of this Section state the entire liability and obligations of the indemnifying party and any of its Affiliates or licensors, and the exclusive remedy of the indemnified party, with respect to the claims described in this Section. 14. TERMINATION. DM 339559v1 CENTURYLINK CONFIDENTIAL & PROPRIETARY INFORMATION v.07.10 No. SPR -14710 Date: February 4, 2011 Page 17 of 30 CenturyLink Custom Cover Agreement Customer Name: EAGLE COUNTY GOVERNMENT Address: 500 Broadway St. Eagle, CO 81632 14.1 CenturyLink Right to Terminate. A. CenturyLink may immediately suspend or terminate Products or Services or the Agreement if: (1) Customer fails to cure its default of the payment terms in the Agreement; (2) If Customer has vacated the premises to which Services are furnished; (3) Customer fails to cure any other material breach of the Agreement within 30 days after receiving CenturyLink's written notice; (4) Customer provides false or deceptive information establishing, using or paying for Services or Customer engages in false, deceptive, fraudulent, or harassing activities when establishing, using or paying for Services; (5) Customer fails to comply with applicable law or regulation and Customer's noncompliance prevents CenturyLink's performance under the Agreement; or (6) Customer resells Products or Services as prohibited by these Standard Terms and Conditions. B. If CenturyLink terminates the Agreement under this Section, Customer will be liable for any Products and Services provided up to the date of termination, whether or not invoiced by the termination date, as well as any applicable early termination liabilities. 14.2 Customer Right to Terminate. A. Material Failure. If CenturyLink materially fails to provide a Product or Service and CenturyLink fails to cure after Customer provides CenturyLink with written notice of the failure and a reasonable opportunity to cure within 30 days from receipt of notice, Customer may terminate the affected Products or Services without early termination liability 30 days after CenturyLink's receipt of Customer's written notice to terminate. CenturyLink's material failure does not include a failure caused by circumstances outside CenturyLink's sole control, a failure caused by a third party access provider, a Force Majeure Event, or Customer or Customer - provided software or equipment. B. Termination for Convenience. Customer may terminate a Service during the applicable Order Term, or the Agreement during the Agreement Term, by providing 60 days' written notice to CenturyLink. In the case of such termination for convenience, Customer will be liable for early termination fees set forth in the Agreement. 143 Early Termination Liability. A. Calculation of Early Termination Liability. If Customer terminates a Product or Service in whole or in part, before expiration of the applicable Order Term (unless due to CenturyLink's material failure), or CenturyLink terminates a Product or Service or applicable Order as permitted under the Agreement, Customer will pay the following early termination charges, which represent CenturyLink's reasonable liquidated damages and not a penalty: (1) General Liability. A lump sum equal to (a) 50% of the applicable monthly charges, multiplied by the number of months remaining in the applicable Order Term, plus (b) a pro rata amount of any waived installation charges, any credits issued (excluding any service level credits issued for any Service outages), and initialization fees waived based upon the number of months remaining in the applicable Order Term at the time of termination; and DM 339559v1 CENTURYLINK CONFIDENTIAL & PROPRIETARY INFORMATION v.07.10 No. SPR -14710 Date: February 4, 2011 Page 18 of 30 CenturyLink Custom Cover Agreement Customer Name: EAGLE COUNTY GOVERNMENT Address: 500 Broadway St. Eagle, CO 81632 (2) Third Party Liability. Any liabilities imposed on CenturyLink by third parties, such as other local exchange carriers and all nonrecoverable costs incurred by CenturyLink as a result of ordering facilities required to operate the Product or Service, as a result of Customer's early termination. B. Waiver of Early Termination Liability. With CenturyLink's written approval, Customer will not be liable for the early termination liability described in this Section for a Service if Customer purchases another Service at the same time with the same or greater monthly recurring charge for an Order Term at least equal to the greater of: the remaining months in the original Order Term or one year. 14.4 Disconnect Notice. CenturyLink will have up to 30 days to complete disconnection of a Service. To complete disconnection, Customer must provide information required by CenturyLink. Customer's failure to provide such information may delay or prevent the disconnection. Customer will be responsible for all charges through the later of the 30 day after CenturyLink received the disconnect notice, or the date Customer stops using the Services. 15. FORCE MAJEURE. Neither party will be responsible for any delay, interruption or other failure to perform under the Agreement due to acts, events, and causes beyond the control of the responsible party (a "Force Majeure Event "). Force Majeure Events include: natural disasters (e.g., lightning, earthquakes, hurricanes, floods); wars, riots, terrorist activities, and civil commotions; inability to obtain parts or equipment from third party suppliers; cable cuts by third parties, a local exchange carrier's activities, and other acts of third parties; explosions and fires; embargoes, strikes, and labor disputes; and governmental decrees and any other cause beyond the reasonable control of a party. 16. DEFINITIONS. 16.1 "Affiliate" is a legal entity that directly or indirectly controls, is controlled by, or is under common control with the party. An entity is considered to control another entity if it owns, directly or indirectly, more than 50% of the total voting securities or other such similar voting rights. 16.2 "Effective Date" is the date the last party signs the Agreement. 16.3 "Order" means a written, electronic or verbal order, or purchase order governed by the terms and conditions of the Agreement, submitted or confirmed by Customer and accepted by CenturyLink, which identifies specific Products and Services; quantity ordered; CenturyLink's Agreement number, title, and execution date; billing address; ship to address; and service /installation address, as applicable. Verbal Orders are deemed confirmed upon Customer's written acknowledgement, or Customer's use, of Products or Services. 16.4 "Product(s)" includes equipment, devices, hardware, software, cabling or other materials sold or leased to Customer by or through CenturyLink as a separate item from, or bundled with, a Service. 16.5 "Product and Service - specific Annexes" refers to separate descriptions, terms and conditions for certain non - tariffed Products and Services, including those offered under applicable CenturyLink local terms of service in states that have withdrawn Tariffs for such Products and Services. Product and Service - specific Annexes are incorporated into the Agreement. 16.6 "Schedules" are the terms and conditions governing CenturyLink's provision of certain interexchange Services that were detariffed by order of the Federal Communication Commission ( "FCC "). CenturyLink Schedules are subject to change during the Agreement Term under the rules and authority of the FCC. Schedules are posted to the Rates and Conditions Website. 16.7 "Service(s)" means wireline and wireless business communications services that are not governed by Tariffs, including basic or telecommunications services, information or other enhanced DM 339559v1 CENTURYLINK CONFIDENTIAL & PROPRIETARY INFORMATION v.07.10 No. SPR -14710 Date: February 4, 2011 Page 19 of 30 CenturyLink Custom Cover Agreement Customer Name: EAGLE COUNTY GOVERNMENT Address: 500 Broadway St. Eagle, CO 81632 services, and non - regulated professional services provided to Customer by or through CenturyLink under the Agreement, excluding Products. 16.8 "Tariffs" means the CenturyLink incumbent local exchange carrier, competitive local exchange carrier, or intrastate interexchange carrier tariffs on record with the FCC or state regulatory authorities having jurisdiction over those Services. Tariffs are subject to change during the Agreement Term under the rules and authority of the relevant regulatory bodies. 17. MISCELLANEOUS. 17.1 Independent Contractor. CenturyLink provides the Products and Services as an independent contractor. The Agreement will not create an employer - employee relationship, association, joint venture, partnership, or other form of legal entity or business enterprise between the parties, their agents, employees or affiliates. 17.2 No Waiver of Rights. The failure to exercise any right under the Agreement does not constitute a waiver of the party's right to exercise that right or any other right in the future. 17.3 No Third Party Beneficiaries. The Agreement's benefits do not extend to any third party. 17.4 Governing Law; Dispute Resolution. A. Governing Law. THIS AGREEMENT AND THE RIGHTS AND OBLIGATIONS OF THE PARTIES IS GOVERNED BY THE LAWS OF THE STATE OF COLORADO, WITHOUT REGARD TO ITS CONFLICT OF LAWS PRINCIPLES. B. Forum Selection. Any court proceeding brought by either party must be brought, as appropriate, in the 5th Judicial District Court of Colorado, located in Eagle County, Colorado, or in United States District Court for the District of Colorado in Denver, Colorado. C. Waiver of Jury Trial. (1) EACH PARTY WAIVES ITS RIGHT TO A JURY TRIAL IN ANY COURT ACTION ARISING AMONG THE PARTIES, WHETHER UNDER THIS AGREEMENT OR OTHERWISE, AND WHETHER MADE BY CLAIM, COUNTER - CLAIM, THIRD PARTY CLAIM OR OTHERWISE. 17.5 Compliance with Laws. Each party agrees that it will comply with all applicable laws in performing its obligations under the Agreement. 17.6 Assignment. Customer may not assign any rights or obligations under the Agreement or an Order without CenturyLink's prior written consent, except that Customer may assign the Agreement, after 30 days prior written notice, to an Affiliate or an entity that has purchased all or substantially all of Customer's assets. Following written notice to Customer, CenturyLink may assign the Agreement or an Order, in whole or in part, without Customer's prior written consent. 17.7 Amendments and Alterations. The Agreement may only be amended in a writing signed by both parties' authorized representatives. Alterations to the Agreement are not valid unless accepted in writing by authorized representatives of both parties. 17.8 Notice. Notices required under the Agreement must be submitted in writing to the party's address for notice listed in the Agreement or Order and, in the case of a dispute, notices must also be sent to: DM 339559v1 CENTURYLINK CONFIDENTIAL & PROPRIETARY INFORMATION v.07.10 No. SPR -14710 Date: February 4, 2011 Page 20 of 30 CenturyLink Custom Cover Agreement Customer Name: EAGLE COUNTY GOVERNMENT Address: 500 Broadway St. Eagle, CO 81632 CenturyLink Attn: Senior Assistant General Counsel, Commercial Law 5454 W. 110 Street Overland Park KS 66211, and Eagle County Attorney 500 Broadway P. O. Box 850 Eagle, CO 81631 17.9 Severability. If any provision of the Agreement is found to be unenforceable, the Agreement's unaffected provisions will remain in effect and the parties will negotiate a mutually acceptable replacement provision consistent with the parties' original intent. 17.10 URLs and Successor URLs. References to Uniform Resource Locators (URLs) in the Agreement include any successor URLs designated by CenturyLink. 17.11 Survivability. The terms and conditions of the Agreement regarding confidentiality, indemnification, warranties, payment, dispute resolution and all others that by their sense and context are intended to survive the expiration of the Agreement will survive. 17.12 Entire Agreement. This Agreement, including all referenced documents, annexes, Schedules, or exhibits, the related Orders and the parties' mutual nondisclosure agreement constitutes the entire agreement and understanding between the parties and supersedes all prior or contemporaneous negotiations or agreements, whether oral or written, relating to its subject matter. DM 339559v1 CENTURYLINK CONFIDENTIAL & PROPRIETARY INFORMATION v.07.10 No. SPR -14710 Date: February 4, 2011 Page 21 of 30 CenturyLink Custom Cover Agreement Customer Name: EAGLE COUNTY GOVERNMENT Address: 500 Broadway St. Eagle, CO 81632 EXHIBIT 2 For use with Standard Terms and Conditions for Communications Services ( "Standard Terms and Conditions "). This Annex is not applicable to Services governed by Tariffs on file with the FCC or state regulatory authorities. CENTURYLINK LOCAL GOVERNMENT CUSTOMER ANNEX This Century Link Local Government Customer Annex ( "Annex "), together with the applicable cover agreement, modifies the Standard Terms and Conditions. This Annex takes precedence over all other conflicting terms and conditions of the Agreement, its Attachments, Annexes and Exhibits. When attached to the applicable cover agreement, this Annex supersedes the version posted at http: // about .centurylink.com /legal/rates conditions.html. 1. Eligibility and Applicability. This Annex is available to all local governmental entities and agencies in connection with the purchase of Products and Services sold under the Standard Terms and Conditions. Century Link defines "local governmental entities and agencies" as local entities and agencies, specifically excluding all state and federal entities and agencies, that receive their primary funding support through the allocation of appropriated public funds and are entitled to exercise sovereign rights and privileges. 2. Indemnity. Customer will honor all indemnity provisions under the Agreement only to the maximum extent permitted by applicable law. No section of the Agreement is intended to create a waiver of Customer's rights or privileges as a sovereign entity. 3. Nonappropriation. 3.1 Definition. A "nonappropriation" occurs when Customer does not secure or allocate sufficient funds in its operating budget to fulfill its financial obligations under the Agreement. 3.2 Effect. If a nonappropriation occurs during the Term, Customer may terminate the Agreement at the end of the then - current fiscal period ( "Termination Date ") without incurring any termination liability. Customer will not be obligated for payments for any fiscal period after the Termination Date. 3.3 Notice. Customer will give Century Link written notice of any termination under this section at least 30 days before the Termination Date. At Century Link's request, Customer will promptly provide supplemental documentation about the nonappropriation. 3.4 Limitations. A. Customer must make a reasonable effort to budget and secure any funds required to fulfill its contractual obligations for each fiscal year during the Term, including the exhaustion of all available administrative appeals if funding is initially denied. 4. Damages. The Agreement does not create an obligation by Customer to pay any damages in excess of those amounts legally available to satisfy Customer's obligations under the Agreement. 5. Ownership and Confidentiality. The Agreement is a copyrighted work authored by Century Link and may contain Century Link trademarks, trade secrets, and other proprietary information. Century Link acknowledges that the Agreement may be subject to disclosure in whole or in part under applicable Freedom of Information, Open Records, or Sunshine laws and regulations (collectively, "FOI "). Customer will provide CenturyLink with prompt notice of any intended FOI disclosures or post- execution FOI requests, citations to or copies of applicable FOI for review, and an appropriate opportunity to seek protection of CenturyLink confidential and proprietary information consistent with all applicable laws and regulations. DM 339559v1 CENTURYLINK CONFIDENTIAL & PROPRIETARY INFORMATION v.07.10 No. SPR -14710 Date: February 4, 2011 Page 22 of 30 CenturyLink Custom Cover Agreement Customer Name: EAGLE COUNTY GOVERNMENT Address: 500 Broadway St. Eagle, CO 81632 6. Governing Law. The Agreement and the rights and obligations of the parties are governed by the laws of the U.S. State where Century Link provides the Products and Services, without regard to that State's conflict of laws principles. DM 339559v1 CENTURYLINK CONFIDENTIAL & PROPRIETARY INFORMATION v.07.10 No. SPR -14710 Date: February 4, 2011 Page 23 of 30 CenturyLink Custom Cover Agreement Customer Name: EAGLE COUNTY GOVERNMENT Address: 500 Broadway St. Eagle, CO 81632 EXHIBIT 3 EQUIPMENT SALES PRODUCT ANNEX This Equipment Sales Product Annex, together with the applicable cover agreement (collectively, the "Agreement "), will govern CenturyLink's provision and Customer's receipt of customer premises equipment and associated materials and labor ( "Equipment "). When attached to the applicable cover agreement, this annex supersedes the version posted at http: // about .centurylink.com /legal/rates conditions.html. Customer's purchase and use of Cisco SMARTnet Services is governed under the Cisco Service and Support Solutions terms and conditions available at http:// www. ciscohardwaremaintenance .com/catalog/terms.php and not by the terms and conditions of the CenturyLink Centurion Maintenance Service Annex. 1. PRICE. Customer will pay the total price invoiced as specified in the Order. If Customer changes any Equipment type or location, Customer will notify CenturyLink in writing of such change and CenturyLink may change the price listed on the Order to conform to Customer's specifications. CenturyLink will base any additional charges on time and material costs CenturyLink incurs. Prices for installation and other products and services not specified in the Order but requested by Customer or necessary to complete the Order will be provided at CenturyLink's standard time and materials rates or at prices that the parties' authorized representatives mutually agree upon in writing from time to time. Discounts applied to any individual Order will not apply to subsequent orders. 2. PAYMENT TERMS. For orders placed under this Annex, Customer's use of financing options does not extend payment terms. 3. FAILURE TO PERFORM. 3.1. Pre - Delivery. If Customer repudiates, gives notice of cancellation, or otherwise breaches this Annex prior to delivery of the Equipment, Customer will pay CenturyLink as liquidated damages, and not as a penalty, 25% of the purchase price or CenturyLink's out of pocket costs incurred as a result of Customer's cancellation, whichever is greater. 3.2. Post - Delivery. If Customer breaches this Annex after delivery of the Equipment, CenturyLink may, in addition to any other remedies available to CenturyLink: (a) declare all sums due and payable immediately; (b) discontinue discounts related to Equipment; (c) cease installation or delivery or disconnect and deactivate Equipment until amounts due are paid; or (d) retake possession of Equipment and retain all sums paid by Customer as a setoff against expenses incurred. 3.3. Drop Ship. Purchases where CenturyLink will not be providing installation ( "Drop Ship ") may not be cancelled following order placement without prior written authorization of CenturyLink or assignment of a return authorization number ( "Call Tag Number "). 4. RISK OF LOSS AND TITLE. 4.1. Risk of Loss. Customer assumes the risk of loss and damage to the Equipment from the date of its delivery to the designated ship to address. 4.2. Title. Title to the Equipment will pass from CenturyLink to Customer when Customer fully pays the total amount invoiced for the Order, including but not limited to the Equipment price, freight, any applicable taxes, or interest due on past due amounts. 4.3. Security Interest. Customer grants CenturyLink a purchase money security interest in the Equipment, together with all replacements, parts, additions, repairs and accessories incorporated in DM 339559v1 CENTURYLINK CONFIDENTIAL & PROPRIETARY INFORMATION v.07.10 No. SPR -14710 Date: February 4, 2011 Page 24 of 30 CenturyLink Custom Cover Agreement Customer Name: EAGLE COUNTY GOVERNMENT Address: 500 Broadway St. Eagle, CO 81632 or affixed to the Equipment, and all proceeds of the sale of the Equipment, until all charges (including interest, if any) are paid in full. Customer will not pledge or otherwise encumber the Equipment until all such charges are paid in full. Customer will sign and deliver any documents reasonably requested by CenturyLink for the purposes of perfecting the security interest created by this Annex. The parties agree that the Equipment will remain personal property, not a part of the land or building, regardless of the manner of installation. 5. DELIVERY, ACCEPTANCE, BILLING AND RETURN OF EQUIPMENT. 5.1. Delivery Date. All delivery dates are approximate. CenturyLink will use commercially reasonable efforts to deliver, or cause to be delivered, the Equipment by any reasonable delivery date specified in the Order. 5.2. Acceptance and Billing. For CenturyLink - installed Equipment, Customer will have 7 days after installation to notify CenturyLink in writing of any material deficiencies in the order. Otherwise, any Order under this Annex will be deemed accepted after the 7 -day period, and CenturyLink may invoice Customer for the Order. If Customer timely rejects the Order, CenturyLink will take prompt action to cure the deficiencies within a reasonable period of time under the circumstances. 5.3. Drop Ship Equipment. If Customer fails to reject the Equipment within 15 days from the date of delivery, Customer will be conclusively presumed to have accepted the Equipment. Equipment may only be rejected for errors in order processing or for defects or deficiencies in the Equipment, and only after Customer has contacted CenturyLink and received a Call Tag Number with instructions on how to complete the return. 5.4. Order Cancellation or Return of Equipment. In CenturyLink's sole discretion, Equipment may be returned by Customer with prior approval and specific shipping instructions from CenturyLink, and must be in original manufacturer's boxes or packaging for CenturyLink to accept the return. In addition to all other applicable charges, Customer will pay CenturyLink a restock charge of 25% of the purchase price as liquidated damages, and not as a penalty, upon the return of Equipment if the return is due to a Customer ordering error or Customer's late cancellation of an order. Customer is responsible for any damage to the Equipment while in Customer's possession or during return shipment to CenturyLink. 6. CUSTOMER RESPONSIBILITIES. 6.1. Preparation of Site. At its own expense, Customer will prepare its site(s) to comply with Equipment manufacturer's or CenturyLink's installation and maintenance specifications. Customer warrants that its sites are free of asbestos (whether encapsulated or exposed) and other hazardous materials as defined by federal or state law. If this warranty cannot be made prior to placing an Order, CenturyLink may, in addition to any other legal or equitable remedies: (a) decline to make any equipment installations in areas known or suspected of containing hazardous materials; or (b) unilaterally make an adjustment to the purchase price to reflect any increased costs of performance because of known or suspected hazardous materials on the premises. 6.2. Permits. Customer will obtain necessary consents, approvals, licenses, and permits for installation of the Equipment on Customer's premises. Customer will provide access to CenturyLink during all hours consistent with the requirements of installation. 6.3. Indemnity. Customer will defend, indemnify and hold harmless CenturyLink, together with its officers, agents and employees, against all damages, claims, liabilities or expenses (including DM 339559v1 CENTURYLINK CONFIDENTIAL & PROPRIETARY INFORMATION v.07.10 No. SPR -14710 Date: February 4, 2011 Page 25 of 30 CenturyLink Custom Cover Agreement Customer Name: EAGLE COUNTY GOVERNMENT Address: 500 Broadway St. Eagle, CO 81632 reasonable attorneys' fees, court costs, and allocated in -house counsel legal expenses) arising out of or resulting in any way from Customer's failure to fulfill Sections 6.1 and 6.2 above. 6.4. Electrical Wiring. Customer acknowledges that foreign voltages and lightning effects on equipment can be significant during electrical storms. Accordingly, Customer is responsible, at its expense, for all ground wire connections to Customer's premises. Customer will also ensure availability of a separate electric source, circuits and power with suitable outlets. Customer is responsible for ensuring CenturyLink's access to concealed wiring and for the availability of proximately located AC power. Unless otherwise stated in the order, Customer will pay the cost of electricians or conduit if required. 6.5. Physical Access to Facilities. During the period of installation and throughout the warranty or maintenance period, Customer will provide necessary openings and ducts for cable and conductors in floors and walls, and floor plans and/or prints showing the location of the openings and ducts. The floor plan and/or prints will also show the locations and types of Equipment to be installed. 6.6. Proper Use. Customer will properly use Equipment and will not, nor will it permit or assist others to, use Equipment for any purpose other than its intended purpose, fail to maintain a suitable environment according to the manufacturer's specifications, or tamper with Equipment. If Customer fails to comply, Customer will release CenturyLink from its performance and liability obligations (including any warranty or indemnity obligations) to Customer under this Annex and Customer will pay CenturyLink all costs or damages CenturyLink incurs as a result of Customer's breach. 6.7. Non - CenturyLink Equipment. CUSTOMER IS SOLELY RESPONSIBLE FOR THE COMPATIBILITY AND NON - INFRINGING USE OF ANY EQUIPMENT NOT ACQUIRED FROM CENTURYLINK THAT IS ADDED TO, OR OTHERWISE USED IN CONJUNCTION WITH CENTURYLINK- PROVIDED EQUIPMENT. CUSTOMER'S USE OR COMBINATION OF NON - COMPATIBLE OR INFRINGING EQUIPMENT WILL, AT CENTURYLINK'S OPTION, VOID ANY REMAINING WARRANTY AS TO ANY ITEM OF CENTURYLINK- PROVIDED EQUIPMENT THAT IS ADVERSELY AFFECTED. 7. WARRANTIES. 7.1. CenturyLink Installed. Unless otherwise noted in writing and explicitly accepted by CenturyLink for a particular Order, the warranty for Equipment installed by CenturyLink and any associated software is limited to the manufacturer's warranty, if any. CenturyLink will provide warranty service for installed Equipment at the installation location consistent with CenturyLink's customary equipment maintenance policies for Customer's location and type of equipment. Warranty service excludes replacement of lost or stolen parts, damage due to negligence, parts or items consumed under normal use, acts of God, or causes other than normal use, including modifications by Customer or maintenance performed by anyone not pre- approved in writing by CenturyLink. 7.2. Drop Ship. C. For Equipment not installed by CenturyLink, the warranty is limited to the manufacturer's warranty, if any. Customer will bear the expense of shipping Equipment not installed by CenturyLink to CenturyLink for warranty repairs or replacement, at CenturyLink's discretion. During the warranty period, CenturyLink will replace defective parts only on an exchange basis. DM 339559v1 CENTURYLINK CONFIDENTIAL & PROPRIETARY INFORMATION v.07.10 No. SPR -14710 Date: February 4, 2011 Page 26 of 30 CenturyLink Custom Cover Agreement Customer Name: EAGLE COUNTY GOVERNMENT Address: 500 Broadway St. Eagle, CO 81632 A. Customer will pay the costs of packing, shipping and insuring defective items returned to CenturyLink. Customer must contact CenturyLink to receive a Call Tag Number with specific instructions prior to shipping the Equipment back to CenturyLink. CenturyLink will ship replacement part(s) or Equipment back to Customer if the Equipment is under warranty. If CenturyLink determines that the warranty has expired, Customer may (a) accept the return of the part or the Equipment as is; (b) request that the part or the Equipment be repaired at Customer's expense; or (c) request that a replacement part or Equipment be shipped to Customer at Customer's expense. If Customer requests a site visit by CenturyLink for repair, Customer will be billed for all parts (if out of warranty) and labor associated with the repair. 8. LIABILITY FOR IP EQUIPMENT. 8.1. Network Performance Assessment ( "NPA "). In addition to other limitations of liability set forth in the Agreement, Customer accepts full responsibility for the impact of adding IP Equipment to its network. IP technology is inherently vulnerable and due to multiple factors outside of CenturyLink's control, CenturyLink does not ensure continued network reliability. CenturyLink recommends an NPA to assess Customer's data network readiness before transition of voice and video services from a separate TDM network to a converged packet or IP network. An NPA is only valid at the point in time when the assessment is conducted and minor Customer changes to the network can result in significant impacts to Quality of Service or performance capabilities of the IP Equipment. An NPA does not guarantee performance of any applications running in Customer's LAN/WAN and CenturyLink is not responsible for any loss or delay in such applications. CenturyLink is not liable for impacts to Customer's network as it relates to the convergence of voice and data. 8.2. Changes Following IP Evaluation or Assessment. Changes in Customer network following an NPA or installation of IP Equipment may impact the existing network or application requirements. Although analyzing the existing network helps identify hardware and software issues associated with the IP Equipment deployment, more CPU, memory, bandwidth or features may be needed to ensure Customer's system meets both IP Equipment and existing network requirements. 9. EQUIPMENT PROVIDED AS PART OF A BUNDLE. 9.1. Under certain Service configurations, CenturyLink furnishes Equipment to Customers without requiring payment in full at the time of acquisition. CenturyLink applies a fixed portion of Customer's monthly recurring charges, shown as a single amount for the bundle of Service and Equipment, toward the purchase price of the Equipment. 9.2. If Customer receives Equipment as part of a bundled Service (as specified in the applicable Agreement or Order), the following additional terms apply: A. Section 4.2 of this Annex will read: "Title to the Equipment will pass to Customer upon installation and acceptance." B. If Customer terminates Services provided under the Agreement before the end of the Term, CenturyLink will collect any amounts still owed for the Equipment under the general termination liability provisions of the Agreement. 10. EQUIPMENT PROVIDED AT NO COST. 10.1. Under certain promotions, CenturyLink furnishes Equipment to Customers at no cost in exchange for certain commitments on term and type of Service associated with the Equipment. DM 339559v1 CENTURYLINK CONFIDENTIAL & PROPRIETARY INFORMATION v.07.10 No. SPR -14710 Date: February 4, 2011 Page 27 of 30 CenturyLink Custom Cover Agreement Customer Name: EAGLE COUNTY GOVERNMENT Address: 500 Broadway St. Eagle, CO 81632 10.2. If Customer receives Equipment at no cost (as specified in the applicable Agreement or Order), the following additional terms apply: A. Section 4.2 of this Annex will read: "Title to the Equipment will pass to Customer upon installation and acceptance." B. If Customer terminates Services provided under the Agreement before the end of the Term, CenturyLink may charge Customer a pro -rata installation fee (based on CenturyLink's time and materials costs as of the installation date) and a pro -rata equipment purchase fee based on CenturyLink's list price for the Equipment at the time of installation in addition to any other termination liability assessed under the Agreement. DM 339559v1 CENTURYLINK CONFIDENTIAL & PROPRIETARY INFORMATION v.07.10 No. SPR -14710 Date: February 4, 2011 Page 28 of 30 CenturyLink Custom Cover Agreement Customer Name: EAGLE COUNTY GOVERNMENT Address: 500 Broadway St. Eagle, CO 81632 EXHIBIT 4 CENTURYTEL NATIONAL PRIVATE LINE SERVICES ANNEX The following terms and conditions, together with the Standard Terms and Conditions for Communications Services ( "Standard Terms and Conditions ") and the applicable cover agreement, (collectively, the "Agreement ") will govern Customer's use of CenturyTel National Private Line Services ( "Services ") provided by CenturyTel Long Distance, LLC ( "CenturyLink "). 1. SERVICE DESCRIPTION. 1.1 Service. CenturyLink National Private Line Service is a non - switched, non -usage sensitive, or point -to -point service which is dedicated exclusively to one Customer. CenturyLink offers Private Line Service within the contiguous United States between CenturyLink Points of Presence (POP) on a fiber optic network. This terrestrial service provides for two -way simultaneous transmission of signals at speeds of 1.544 Mbps up to 622.08 Mbps. 1.2 Changes in Technology, Infrastructure, and Topology. CenturyLink reserves the right to provision the Service via CenturyLink's choice of technology, and may change the manner in which the Service is provisioned to the Customer at any time without notice; provided, the quality and functionality of such Services are not materially adversely impacted by such manner of provisioning. 1.5 Service Availability. The Service is provided on the basis of availability, as determined in CenturyLink's sole discretion. 2. TERM. 2.1 Order Term. The Order Term for the Services will be stated in the Agreement and will begin when Services are installed and available to Customer. 2.2 Early Termination Liability Charges. A. Except as described below, if Customer disconnects a service or rate element before expiration of the applicable Order Term, Customer will pay the following early termination charges, which represent CenturyLink's reasonable liquidated damages and not a penalty: (1) General Liability. A lump sum equal to (a) 100% of the applicable monthly charges, multiplied by the number of months remaining in the, plus (b) a pro rata amount of any waived installation charges, any credits issued (excluding any service level credits issued for any Service outages), and initialization fees waived based upon the number of months remaining in the applicable Order Term at the time of termination; and (2) Third Party Liability. Any liabilities imposed on CenturyLink by third parties, such as other local exchange carriers and all nonrecoverable costs incurred by CenturyLink as a result of ordering facilities required to operate the Service, as a result of Customer's early termination. B. CenturyLink may waive the early termination liability when a service or rate element is disconnected as a result of a Customer - requested upgrade to a next generation service offering, under the following conditions: (1) The term for the new service offering is equal to or exceeds the remaining service period of the disconnected Order Term, and DM 339559v1 CENTURYLINK CONFIDENTIAL & PROPRIETARY INFORMATION v.07.10 No. SPR -14710 Date: February 4, 2011 Page 29 of 30 CenturyLink Custom Cover Agreement Customer Name: EAGLE COUNTY GOVERNMENT Address: 500 Broadway St. Eagle, CO 81632 (2) The service orders to install the new service and disconnect the old service are related together, and there is no lapse in service between the installation of the new service and the disconnection of the old service, and (3) The service orders to install the new service and disconnect the old service are for the same Customer at the same location. (4) Any charges for the early termination of the Service for a portion(s) provided by a third party that are not waived by the third party will be passed along to the Customer. C. CenturyLink will determine whether the new service qualifies as a next generation service offering. D. Nonrecurring charges and Service Order Charges for the new service will apply according to the requirements of the new service. 3. RESPONSIBILITY OF CENTURYLINK. 3.1 CenturyLink is not responsible if changes in any of its facilities, operations or procedures utilized in the provision of the Services render any facilities or equipment provided by Customer obsolete, or requires modification or alteration of such equipment or system or otherwise affects its use or performance. 4. SERVICE COMPONENTS AND RATE ELEMENTS FOR THE SERVICES. 4.1. Monthly Recurring Charge ( "MRC ") for the Services. CenturyLink will charge Customer a MRC for the Services per Customer site. 4.2. Nonrecurring Charges ( "NRC "). A. Installation Charge. CenturyLink will charge Customer NRCs for the initial installation of the Service and for any subsequent rearrangement of the Service. B. Move Charge. CenturyLink will charge Customer a Move Charge when a UNI -the in- territory end of the National Private Line is moved to a new location, even when moved on the same premises. The Move Charge applies in addition to a Service Order Charge. C. Service Order Charge. A Service Order Charge is applicable per each Customer request for Services. D. Special Construction Charges. Special Construction Charges may be applicable under special conditions. CenturyLink may charge Customer when technical limitations and/or the lack of facilities exist, or if it is necessary to construct facilities to satisfy Service requests. E. Trouble Location Charge. CenturyLink will charge Customer Trouble Location Charge for visits by CenturyLink or a third party operating on behalf of CenturyLink to Customer's premises where the service difficulty or trouble report results from the use of equipment or facilities provided by Customer. 4.3 Required or Permitted Fees, Charges, and Surcharges. As permitted by the Federal Communications Commission, CenturyLink will charge Customer Universal Service Charges related to the Service if applicable. In addition, CenturyLink may impose additional fees, charges or surcharges on Customer to recover amounts that CenturyLink is required or permitted by governmental or quasi - governmental authorities to collect, or pay to others in support of statutory DM 339559v1 CENTURYLINK CONFIDENTIAL & PROPRIETARY INFORMATION v.07.10 No. SPR -14710 Date: February 4, 2011 Page 30 of 30 CenturyLink Custom Cover Agreement Customer Name: EAGLE COUNTY GOVERNMENT Address: 500 Broadway St. Eagle, CO 81632 or regulatory programs, plus a commercially reasonable amount to recover the administrative costs associated with such charges or programs. 5. ORDERS. 5.1 Application. The terms and conditions in any Orders will have no force or effect other than to denote quantity and description of Services, delivery destinations, delivery dates, Customer billing addresses, installation addresses, the Agreement under which the Order is issued, and any other information required by CenturyLink. Orders are binding only upon acceptance in writing by CenturyLink. 5.2 Cancellation. CenturyLink will notify Customer of rejected Orders. If Customer cancels an Order Customer must pay the following amounts, based on the amount of work completed at the time the notice of cancellation is received: A. General. A lump sum equal to (a) $250 if pre- engineering; (b) $350 if post- engineering, but pre - installation; or (c) $500 once installation has begun; and B. Third Party Liability. Any liabilities imposed on CenturyLink by third parties for Customer's early cancellation, such as other local exchange carriers and all nonrecoverable costs incurred by CenturyLink as a result of ordering facilities required to operate the Service. 5.3 Delivery of CenturyLink National Private Line Service. Delivery of the Services requires close coordination based on detailed knowledge about all Customer sites and Customer requirements. Services will not be available until CenturyLink and all third party providers (working on behalf of CenturyLink) accept the final, complete Order for Services for all applicable Customer locations (the "National Private Line Availability Date "). Any revisions to such Order will extend the National Private Line Availability Date. In all instances, the National Private Line Availability Date is approximate. CenturyLink will not be responsible for any delay or inability to provide the Services by the National CenturyLink Private Line Availability Date. DM 339559v1 CENTURYLINK CONFIDENTIAL & PROPRIETARY INFORMATION v.07.10