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HomeMy WebLinkAboutC21-210 Town of Eagle - THOR Transport Agreement1 Town of Eagle Broadband - Network Access Agreement This Agreement (“Agreement”) for network access service ("Service") is effective as of the _______________________ by and between Town of Eagle ("TOE" or “Town”), having offices at 200 Broadway St. Eagle, CO 81631, and Eagle County, Colorado, a body corporate and politic (“Customer”), having offices at 500 Broadway Street, Eagle, CO 81631. WHEREAS, the Northwest Colorado Council of Governments (“NWCCOG”) owns or controls a middle mile fiber optic network located within NWCCOG’s boundaries, which is known as Project THOR; and WHEREAS, TOE owns a Meet Me Center connected to the Project THOR network and will own TOE fiber from the Meet Me Center extending to various locations throughout the Town; and WHEREAS, the TOE is duly authorized by the NWCCOG to resell access to Project THOR middle mile connectivity; and WHEREAS, Customer seeks an agreement for access to connect to the Town’s Meet Me Center and to obtain the transport Services utilizing the Project THOR network. NOW, THEREFORE, in consideration of the promises and obligations described in this Agreement, the parties agree as follows: 1.Effective Date. This Agreement is effective on the date it is executed by both parties as indicated above. 2.Definitions. 2.1 “Customer Equipment” means Customer premises equipment used at End User or Customer locations, other than equipment for which TOE has agreed to assume maintenance responsibility. 2.2 “Due Date” is defined in Section 5.1 of this Agreement. 2.4 “Emergency Maintenance” is defined in the Service Level Agreement. 2.5 “Monthly Recurring Cost” or “MRC” means the monthly recurring cost of a Service, which will be as agreed upon by the Parties and documented in this Agreement. DocuSign Envelope ID: C9D60C47-CCFD-4288-A19C-E06D4E75C02C 6/10/2021 C21-210 2 2.6 “Network Operator” means the entity contracted with the NWCCOG to conduct daily management and support of the Project THOR network and infrastructure. 2.7 “Non-Recurring Cost” or “NRC” means a one-time, non-recurring cost with respect to a Service, which will be as agreed upon by the Parties and documented in this Agreement. 2.8 “Outage Credit” means a credit specified and issued in accordance with the terms of Exhibit A to this Agreement that is applied to reduce amounts otherwise due from Customer to TOE for Services provided under this Agreement. 2.9 “Parties” means, collectively, TOE and Customer. 2.10 “Project THOR” or “Network” means the NWCCOG’s middle mile network utilized for the purposes of providing Service to Meet Me Center hosts. It includes, without limitation, all cables, collocation space, conduits, innerducts, manholes, towers, switches, transmitters, junctions, terminals, internal power sources, battery backups, fault alarm systems, structures, shelters, poles or pole line attachments, similar equipment, and all articles of personal property owned or leased by NWCCOG that is used to provide Service, as any or all of the same may be updated, supplemented, replaced or expanded, from time to time. 2.11 “Service” or “Services” means Transport, broadband and other Network- enabled services that the parties agree, per the terms of this Agreement, will be made available to Customer. 2.12 “Service Level Agreement” or “SLA” means the Service Level Agreements associated with Services under this Agreement as specified on Exhibit A. 2.13 “Term” is defined in Section 3 of this Agreement. 2.14 “Termination Liability Charges” means (i) all previously-waived NRC for an applicable Service, (ii) all MRC through the first twelve (12) months of the remaining Term, and (iii) fifty percent (50%) of the MRC for the remaining months beyond the first twelve (12) months of the Term. 2.15 “Transport” or “Transport Service” means the intra-network traffic between the TOE Meet Me Center location and other locations on the Project THOR network and as further described in Section 4.2, independent of network traffic connecting to the internet. DocuSign Envelope ID: C9D60C47-CCFD-4288-A19C-E06D4E75C02C 3 2.16 “Undisputed Payment” means the amount of an invoice with respect to which Customer has not properly and timely submitted a billing dispute. 3. Term. 3.1 Initial Term. The initial term of this Agreement commences on the Effective Date and shall terminate on December 31, 2020. 3.2 Renewal. This Agreement will automatically renew for successive periods of 12 months (each a “Renewal Term”) for two (2) Renewal Terms, unless either Party gives notice of termination to the other Party not less than thirty (30) days prior to the end of a Renewal Term. If notice of termination is properly given, this Agreement shall terminate at the end of the applicable one (1) year Renewal Term. 4. Services. 4.1 Meet Me Center Facilities. TOE will make available connectivity to the Network through equipment meeting Project THOR’s network specifications. Customer shall be responsible for ensuring that its equipment and facilities are compatible with all necessary equipment and facilities it will connect to at the Meet Me Center. TOE will permit Customer reasonable access to the Meet Me Center to access and maintain its equipment and will advise NWCCOG and its Network Operator that Customer is authorized to access the Meet Me Center location. 4.2 Services Provided. TOE will provide the following Services to Customer: X Transport Service from the data center at 910 15th Street, Denver, Colorado to 500 Broadway, Eagle, Colorado. X Direct Internet Access In Town, In-Network Transport using TOE Facilities 4.3 Pricing. Pricing for Services provided pursuant to this Agreement is as follows: TYPE OF SERVICE NON-RECURRING COSTS MONTHLY RECURRING COSTS TERMINATION LIABILITY CHARGES Transport $525 Direct Internet Access $220 DocuSign Envelope ID: C9D60C47-CCFD-4288-A19C-E06D4E75C02C 4 In Town, In- Network Transport Upon connection at the Meet Me Center, Customer shall be provided with Transport Services on the Project THOR network, routed on optical fiber regularly used to transmit data on the Project THOR network. 4.4 Customer Costs. Customer shall be solely responsible for: (a) any costs associated with Customer Equipment; (b) access-related charges, including any charges for interconnection, cross-connection, installation, wiring and construction and other access-related charges; and/or (c) ordering, installing and ensuring proper operation of any and all equipment required to enable Customer to receive the Service. 4.5 Start Date. The Service(s) described herein shall commence on April 1, 2021. 5. Invoicing/Late Payments/Disputes/Taxes. 5.1 Procedure. Customer shall be invoiced by email and/or via U.S. Postal or courier service at Customer preference each month in advance of Service, for all amounts due and owing to TOE. Payments are due within thirty (30) calendar days following the invoice date (the “Due Date”). Unless otherwise specified in writing by TOE, payments shall be made payable to the Town of Eagle and mailed as directed on the invoice. Check, money order, or cashier's checks, in each case representing immediately available funds, are also acceptable payment instruments. 5.2 Past Due Amounts. All amounts other than a written disputed amount not received by TOE in full by the Due Date, will be considered past due, and subject to a late payment fee of the lesser of one and one-half percent (1.5%) per month, or the maximum amount allowed by law. Customer Services, individually or as a whole, may be terminated or disconnected upon ten (10) business days’ notice if payment, less any timely and properly submitted billing disputes, is not received by the Due Date. TOE may charge a $500 reconnect fee to restore any individual Service at its sole discretion. 5.3 Dispute of Invoice. Customer shall only be obligated to pay the Undisputed Payment amount on or before the Due Date. In order to properly dispute all or any portion of an invoice, Customer must give written notice to TOE of the disputed amount (with details of the nature of the dispute and the Services and invoice(s) disputed) within thirty (30) calendar days following the date of the applicable invoice. The Parties DocuSign Envelope ID: C9D60C47-CCFD-4288-A19C-E06D4E75C02C 5 shall use commercially reasonable efforts to resolve the dispute in good faith within a sixty (60) calendar day timeframe following the Customer’s giving the notice of dispute. The Customer shall supply TOE with additional information or documentation it may reasonably request in order to determine the resolution of the dispute. If the dispute is resolved against the Customer, the Customer shall pay the disputed amounts plus interest at one and one-half percent (1.5%) per month from the date originally due. If Customer is entitled to credits or adjustments for disputed amounts, TOE will credit Customer for the disputed amount and any interest on the disputed amount charged on its invoice issued the next billing cycle. 5.4. Attorney’s Fees. Customer shall pay all collection costs incurred by TOE (including, without limitation, reasonable attorneys’ fees) for the collection of late payments. 5.5 Taxes. Each Party shall be solely responsible for all taxes on its own business and shall be responsible for any related tax filings, payment, protest, audit and litigation related thereto. Customer shall pay all applicable possessory interest taxes, and other taxes, fees, and assessments solely attributable to Customer’s use of the TOE Services. 5.6 Fraudulent Use of Services. Customer is responsible for all charges attributable to Customer with respect to the Service(s), even if incurred as the result of fraudulent or unauthorized use of the Service. TOE may, but is not obligated to, detect or report unauthorized or fraudulent use of Services to Customer. TOE reserves the right to restrict, suspend or discontinue providing any Service in the event of fraudulent use of Customer's Service. 6. Service Level Agreement/Outages/Conditions Related to Provision of Service. 6.1 Service Level Agreement. SLA terms are set forth in Exhibit A to this Agreement and are incorporated herein by reference. 6.2 Outage Credits. To receive an Outage Credit, Customer must comply with the procedures and requirements set forth in Exhibit A. If Customer fails to comply with the conditions set forth in Exhibit A, Customer shall have waived its right to Outage Credits with respect to the Outage in question. 6.3 Exceptions. Outage Credits shall not apply if (a) Customer Equipment used in the Service has failed to operate properly and contributed to the Outage; or (b) the Outage is due in whole or in part to Customer’s or Customer’s End User’s use of the Service in violation of applicable law or in violation of instructions furnished by TOE; or DocuSign Envelope ID: C9D60C47-CCFD-4288-A19C-E06D4E75C02C 6 (c) the Outage is related to routine maintenance outside normal business hours as communicated by TOE in writing to the Customer no less than twenty-four (24) hours prior to such maintenance. 6.4 Service Changes. Any changes or alterations to Services may incur a charge to the Customer at TOE's then current labor rates or TOE’s Network Provider’s non-recurring rates. Customer must provide ample notice and opportunity for TOE to obtain a quote and schedule the Service changes with Network Operator. As of the Effective Date, the fee is expected to not exceed $100/hour. Any such fees may be adjusted annually to reflect actual costs. 6.5 Internet Use. Customer hereby acknowledges that the Internet is not owned, operated, managed by, or in any way affiliated with TOE or its contractors, NWCCOG, network operators or affiliates; it is a community network independent of TOE. Customer's use of the Internet is at Customer's sole risk and is subject to all applicable local, State, Federal, and International laws and regulations. Access to the Internet is dependent on numerous factors, technologies, and systems beyond TOE's authority and control. 6.6 Other Networks. Access to networks connected to TOE's network must be established under rules appropriate to those networks. TOE exercises no control whatsoever over the content and information utilizing its infrastructure or passing through its network. 6.7 Maintenance. 6.7.1 Routine maintenance and periodic system repair, upgrades and reconfigurations, public emergency or necessity, Force Majeure, restrictions imposed by law, acts of God, labor disputes, and other situations, including mechanical or electronic breakdowns, may result in temporary impairment or interruption of Service. As a result, TOE does not guarantee continuous or uninterrupted Services and reserves the right from time to time to temporarily reduce or suspend Service without notice. TOE will use commercially reasonable efforts to restore Services as soon as practicable. Except as expressly set forth in Section 6.2 with respect to Outage Credits, customer releases TOE and its directors, officer, employees and agents from any obligations, charges, claims, liabilities, opportunity costs and fees incurred, whether foreseeable or unforeseeable, as the result of Service interruption, omission or degradation, including the impact resulting to the Customer. DocuSign Envelope ID: C9D60C47-CCFD-4288-A19C-E06D4E75C02C 7 6.7.2 Upon reasonable notice, or in the case of an emergency, without any notice, nothing in this Agreement shall prevent TOE or any authorized third party from taking such actions as are necessary to repair and maintain the facilities through which the Service is provided. TOE shall not incur any liability as a result thereof even though, for example, the actions may render the Service unusable for a period of time. Notwithstanding the foregoing, and except for emergencies, TOE shall attempt to perform routine repair and maintenance at such times that will have minimum disruptive impact on the continuity or performance of the Service. 6.7.3 If TOE determines that the reason for repair and maintenance is due to Customer-provided facilities or equipment, or Customer’s actions or omissions, Customer shall compensate TOE for the reasonable costs and expenses thereof. 7. Insurance. 7.1 Required Coverages. Before commencing Service under this Agreement, and at all other times this Agreement is effective, Customer and TOE will procure and maintain the following types of insurance with coverage limits complying, at a minimum, with the limits set forth below: 7.1.1 Not less than $1,000,000 combined single-limit commercial general liability insurance, on an occurrence basis, for bodily injury, personal and property damage arising from the operation of vehicles or equipment and liability for completed operations. Commercial general liability insurance will meet or exceed the most current ISO forms. 7.1.2 Workers’ compensation insurance in amounts required by applicable law and employers’ liability insurance, with a limit of at least $1,000,000. Policy shall be endorsed to include a waiver of subrogation in favor of the other Party. 7.1.3 Automobile liability insurance covering death or injury to any person or persons, or damage to property arising from the operation of vehicles, with limits of not less than $1,000,000 per occurrence. 7.1.4. Technology Errors & Omissions: Contractor shall maintain Technology Errors and Omissions insurance including cyber liability, network security, privacy liability and product failure coverage. DocuSign Envelope ID: C9D60C47-CCFD-4288-A19C-E06D4E75C02C 8 Liability policies must be endorsed to name TOE and Customer respectively, their officials, and employees as “additional insureds” under said insurance coverage for commercial and automobile insurance. Such insurance will be on an “occurrence,” not a “claims made,” basis and will not be cancelable except upon thirty (30) business days prior written notice to TOE except for nonpayment of premiums which may be cancelable upon ten (10) business day notice. 7.2 Certificates. Customer will furnish to TOE and TOE will furnish to Customer duly authenticated Certificates of Insurance and Endorsements evidencing maintenance of the insurance required under this License and such other evidence of insurance or copies of policies as may be reasonably required by TOE and Customer from time to time. Insurance must be placed with insurers with a current A.M. Best Company Rating equivalent to at least a Rating of “A-VII.” Certificate(s) must reflect that the insurer will provide thirty (30) business day notice of any cancellation of coverage. Customer and TOE will require its insurer to modify such certificates to delete any exculpatory wording stating that failure of the insurer to mail written notice of cancellation imposes no obligation, and to delete the word “endeavor” with regard to any notice provisions. 7.3 Failure to obtain and maintain the insurance required by this Agreement may result in termination of Service and cancellation of the Agreement, at the sole discretion of the TOE and Customer. 7.4 Should Customer’s or TOE’s insurance required by this Agreement be cancelled at any point prior to expiration of the policy, Customer must notify TOE and TOE must notify Customer within ten (10) calendar days of receipt of notice of cancellation. Furthermore, Customer and TOE must obtain replacement coverage that meets all contractual requirements within twenty (20) calendar days of the prior insurer’s issuance of notice of cancellation. Customer and TOE must ensure that there is no lapse in coverage. 8. Section Intentionally Omitted. 9. Force Majeure. In the event either Party is prevented or delayed in the performance of any of its obligations under this Agreement by reason beyond the control of that Party, it shall have a reasonable time, under the circumstances, to perform the affected obligation under this Agreement or to procure a substitute for such obligation which is satisfactory to the other Party. Those conditions which are not within the control of a Party include, but are not limited to, acts of God, fire or other natural disasters, pandemics, civil disturbances, defaults by other parties impacting the Network, work stoppages or labor disputes, power outages, telephone DocuSign Envelope ID: C9D60C47-CCFD-4288-A19C-E06D4E75C02C 9 network outages, and severe or unusual weather conditions which have a direct and substantial impact on the party’s ability to comply with this Agreement and which was not caused and could not have been avoided by the party which used its best efforts in its operations to avoid such results. 10. Termination. This Agreement and all Services hereunder may be terminated: 10.1 by TOE, for failure by Customer to timely pay amounts due under this Agreement. If TOE terminates for non-payment, Customer shall pay with a lump sum equal to the aggregate Termination Liability Charges due under this Agreement within ten (10) business days’ following TOE’s notice to Customer of termination. 10.2 by TOE, for failure of Customer to activate Services within one (1) year of the Service Activation Date(s). 10.3 by TOE, for failure of Customer to obtain and maintain the required Insurance. 10.4 by TOE, TOE for (i) Misuse and destruction of TOE equipment and facilities; (ii) Unauthorized access or connection to the TOE network; or (iii) Introducing malicious software onto the TOE network and/or jeopardizing the security of TOE's electronic communications systems. 10.5 by TOE, for failure of Customer to cure violations of any other material terms and conditions of this Agreement after TOE has provided notice and Customer has not cured within thirty (30) days or other reasonable time agreed to by both Parties. 10.6 by Customer, for failure of TOE to cure violations of material terms and conditions of this Agreement after TOE has provided notice and Customer has not cured within thirty (30) days or other reasonable time agreed to by both Parties. 10.7 by Customer, by providing TOE written notice of such termination. If Customer terminates within three (3) business days after the Effective Date, Customer will not be charged any termination fees for the terminated Service. If Customer terminates more than three (3) business days after the Effective Date, but prior to Service activation, Customer shall pay TOE a cancellation fee equal to the NRC, and all third- party construction, cancellation and/or termination charges incurred by TOE in order to provide Service to Customer. If Customer terminates after the Service has commenced, Customer shall pay to TOE Termination Liability Charges of all remaining MRC for any remaining months in the first twelve (12) months of the term, if any and (ii) fifty (50%) DocuSign Envelope ID: C9D60C47-CCFD-4288-A19C-E06D4E75C02C 10 percent of the MRC for the remaining months beyond the first twelve (12) months of the term. 11. LIMITATION OF LIABILITY. CUSTOMER'S EXCLUSIVE REMEDY FOR CLAIMS ARISING OUT OF OR RELATING TO THIS AGREEMENT SHALL BE LIMITED TO OUTAGE CREDITS AS SET FORTH IN THIS AGREEMENT. IN NO CASE WILL TOE BE LIABLE FOR ANY AMOUNTS EXCEEDING IN THE AGGREGATE THE AMOUNTS PAID BY CUSTOMER TO TOE UNDER THIS AGREEMENT IN THE PRIOR TWELVE MONTHS. TOE DOES NOT MAKE, AND HEREBY DISCLAIMS, ANY AND ALL OTHER STATUTORY, EXPRESS OR IMPLIED WARRANTIES, INCLUDING BUT NOT LIMITED TO WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR TITLE OR NON- INFRINGEMENT OF THIRD-PARTY RIGHTS. CUSTOMER ACKNOWLEDGES AND ACCEPTS THE REASONABLENESS OF THE FOREGOING WARRANTY DISCLAIMER AND LIMITATIONS OF LIABILITY. 12. Miscellaneous Provisions. 12.1 Authority. Customer represents the individual signing this Agreement has the authority to bind Customer to the terms, conditions and obligations herein, and that it is not by law or agreement with others, prohibited from entering into this Agreement. 12.2 Waiver. The terms, representations and warranties of this Agreement may only be waived by a written instrument executed by the Party waiving compliance. Except as otherwise provided for herein, neither Party's failure at any time, to enforce any right or remedy available to it under this Agreement shall be construed as a continuing waiver of such right or a waiver of any other provision hereunder. 12.3 No Third-Party Beneficiaries. Notwithstanding anything else in this Agreement, there are no third-party beneficiaries to this Agreement 12.4 Choice of Law. This Agreement and all disputes arising out of or relating to this Agreement will be governed by, enforced, and construed in accordance with the laws of the State of Colorado. Any action brought by either party relating in any way to this Agreement shall be brought exclusively in the County or District Court of Eagle County. Each Party agrees to and does submit to the jurisdiction and venue therein and waives any claim that such courts constitute an inconvenient forum. 12.5 Successor and Assigns. Neither Party shall assign any of its rights, obligations or privileges (by operation of law or otherwise) hereunder without the prior written consent, which shall not be unreasonably withheld, of the other Party. The terms and conditions of this Agreement shall inure to the benefit of and be binding upon the DocuSign Envelope ID: C9D60C47-CCFD-4288-A19C-E06D4E75C02C 11 respective permitted successors and assigns of the Parties. Nothing in this Agreement, express or implied, is intended to confer upon any party other than the Parties hereto or their respective successors and assigns any rights, remedies, obligations or liabilities under or by the reason of this agreement, except as expressly provided in this Agreement. 12.6 Headings. Headings used in this Agreement are provided for convenience only and shall not be used to construe meaning or intent. 12.7 No Ability to Bind Other Party. Neither Party shall have the authority to bind the other by contract or otherwise or make any representations or guarantees on behalf of the other. The relationship arising from this Agreement shall be and shall at all times remain that of an independent contractor, and does not constitute an agency, joint venture, partnership, employee relationship or franchise. 12.8 Notices. All communications required or permitted to be given by this Agreement shall be made in writing and shall be sent by a recognized overnight commercial delivery or certified U.S. mail to the address for the respective Party shown on the signature page of this Agreement or such other address as either Party may specify from time to time in writing. Email communication will not be considered an acceptable form of written notice, unless specifically provided for herein. 12.9 Use of Name. Use of a Party’s name, trademark, service mark, copyright or other intellectual property owned by a Party or its Affiliates is strictly prohibited without the express written consent of a Party’s corporate officer. Nothing herein constitutes a license authorizing the use of Party’s name, trademark, service mark, copyright or other intellectual property owned by a Party or its Affiliates. 12.10 Survival. Customer’s payment obligations to TOE will survive the expiration and termination of this Agreement. In addition, the provisions of Sections 5, 6.1, 6.2, 6.3, 8, 9, 11, 12.2 through 12.5, 12.8, 12.9, and 12.12 will survive the expiration and termination of this Agreement. 12.11 Electronic Signatures and Electronic Records. This Agreement and any amendments hereto may be executed in several counterparts, each of which shall be deemed an original, and all of which together shall constitute one agreement binding on the Parties, notwithstanding the possible event that all Parties may not have signed the same counterpart. Each Party consents to the use of electronic signatures by either Party. The Parties agree not to deny the legal effect or enforceability of the Agreement solely because it is in electronic form or because an electronic record was used in its formation. The Parties agree not to object to the admissibility of the Agreement in the form of an electronic record, or a paper copy of an electronic documents, or a paper copy of a DocuSign Envelope ID: C9D60C47-CCFD-4288-A19C-E06D4E75C02C 12 document bearing an electronic signature, on the ground that it is an electronic record or electronic signature or that it is not in its original form or is not an original. 12.12 Severability. Should any provision of this Agreement be held by a court of competent jurisdiction to be illegal, invalid or unenforceable, such provision shall be deemed modified to the extent necessary (consistent with the intent of the Parties) to eliminate the illegal, invalid or unenforceable effect or to sever such provision if modification is not feasible, and the remaining terms shall continue in full force and effect. 12.13 Amendment. This Agreement shall not be modified or amended except via written instrument agreeable to both Parties. In the event a conflict exists between this Agreement and terms of any Amendment hereto, then the term in the Amendment shall take precedence. 12.14 Prohibited Uses. Customer is prohibited from using, or permitting the use of, any Service (i) for any purpose in violation of any law, rule, regulation, or policy of any government authority; (ii) for any use as to which Customer has not obtained all required government approvals, authorizations, licenses, consents, and permits; or (iii) to interfere unreasonably with the use of TOE service by others or the operation of the Network. TOE reserves the right to act immediately and without notice to terminate or suspend the Services in the event of fraudulent use of Customer’s Services. IN WITNESS WHEREOF, the parties have executed this Agreement through their authorized representatives. Town of Eagle Eagle County, Colorado By: Town of Eagle By: Eagle County Government Name: Brandy Reitter Name: Jeff Shroll Title: Town Manager Title: County Manager Notice address: PO Box 609 200 Broadway St. Eagle, CO 81631 Notice address: PO Box 850 500 Broadway Eagle, CO 81631 Mailing address: PO Box 609 Eagle, CO 81631 Mailing/Billing address: PO Box 850 Eagle, CO 81631 Contact: Bill Shrum Billing contact: Jake Klearman DocuSign Envelope ID: C9D60C47-CCFD-4288-A19C-E06D4E75C02C 13 Contact email: bill.shrum@townofeagle.org Billing email: itinvoices@eaglecounty.us Contact phone: 970-328-6354 Billing phone: 970-328-3580 Town of Eagle: Eagle County Government: By: ______________________ By: _________________________ Name: ____________________ Name: _______________________ Title: ____________________ Title: _______________________ Date: ____________________ Date: _________________________ DocuSign Envelope ID: C9D60C47-CCFD-4288-A19C-E06D4E75C02C Brandy Reitter 6/10/2021 Town Manager 6/10/2021 Jeff Shroll County Manager 14 EXHIBIT A - TRANSPORT SERVICE LEVEL AGREEMENT This Service Level Agreement (“SLA”) establishes network performance and service level metrics for the Network. The NWCCOG has contracted with a network operator for its performance under the SLA described below, and as a Meet Me Center host, TOE is a third-party beneficiary to, and may independently enforce the terms of the SLA with the network operator with respect to the Services that Customer purchases from the TOE. When the Network fails to deliver a standard of performance (as established in the Table below), the Customer shall be eligible for a corresponding credit. All Service Outages, service impacting and non-impacting situations, and potential Service Level credits, will be handled according to the guidelines and priorities as defined and set forth in this SLA, and which may be subject to change from time to time with written notice. A Transport Circuit is described as the carriage of interstate or intrastate traffic pursuant to the terms and conditions of Agreement and the Appendices. This Service is a point to point non- dedicated switched/non-switched electrical and/or data optical transmission, over a physical circuit between two Points of Presence (PoPs) located on the Project THOR or its vendor networks. The monthly Service Availability Percentage for the Transport Circuit is calculated as follows: (Minutes of Outage) / 43,200 (30 days x 24 hours/day x 60 minutes in an hour) Transport Circuit Service Description: Metro Ethernet Monthly Service Availability Percentage and Outage Credits are as follows: Monthly Service Availability Percentage Outage credit % Upper Level Lower Level % of MRC credit per affected MMC Host 100% >=99.9% 0% <99.9% >=99.5% 5% <99.5% >=99.0% 10% DocuSign Envelope ID: C9D60C47-CCFD-4288-A19C-E06D4E75C02C 15 <99.0% >=95.0% 25% <95.0% >=90.0% 50% <90.0% >=00.0% 100% The length of each Outage shall be calculated in full minutes for the purposes of determining Outage Credits. The existence and end of each Outage will be determined by the Network Operator in good faith based on network tests performed by the Network Operator, and tests performed by Customer will be considered. Under no circumstances will network tests performed by Customer be considered valid measurable criterion for Outage determination for the purposes of establishing Outage Credits. Transparency: In the case of any Outage or disruption of Service on the Network, the Network Operator shall promptly notify the NWCCOG, TOE, and Customer with details of the outage and when Service is expected to be restored. The Network Operator may also make such outage information available electronically. Outage Credit Details To receive an Outage Credit, Customer must (a) enter a trouble ticket at the time the failure to meet the SLA (the “Outage”) occurs by contacting TOE, unless TOE or Network Operator has itself opened the trouble ticket for such Service unavailability, (b) be current in its payment obligations under this Agreement for all amounts not in dispute by the Customer, and (c) request reimbursement for Outage Credits from TOE in writing and submit to TOE all necessary supporting documentation within thirty (30) calendar days of the date of invoice for the month in which the applicable Outage occurred. If Customer fails to comply with the conditions for Outage Credits as set forth, Customer shall have waived its right to such Outage Credits for Outages in such month. An Outage shall not be deemed to have occurred in the event that the Service is unavailable or impaired due to any of the following: (i) Interruptions on a Service for which the Start Date has not yet commenced; (ii) Interruptions caused by the negligence, error or omission of Customer or others authorized by Customer to access, use or modify the Service or equipment used by Customer; (iii) Interruptions due to power failure at Customer or End User premises, or the failure or poor performance of Customer Equipment; DocuSign Envelope ID: C9D60C47-CCFD-4288-A19C-E06D4E75C02C 16 (iv) Interruptions during any period in which TOE or its agents are not afforded access to the End User premises where the access lines associated with the Service are terminated, provided such access is reasonably necessary to prevent a degradation or to restore Service; (v) Interruptions during any period that TOE has communicated to Customer with twenty-four (24) hours’ notice that the Service will be unavailable due to Scheduled Maintenance (as defined below) or grooming purposes, or Customer has released the Service to TOE; (vi) Interruptions during any period that Customer elects not to release the Service for testing and/or repair and continues to use it on an impaired basis; (vii) Interruptions resulting from Force Majeure; (viii) Interruptions resulting from Customer’s use of Service in an unauthorized or unlawful manner; (ix) Interruptions resulting from a TOE disconnect under Section 5.2 of the Agreement; or (x) Interruptions resulting from a failure of an off-net carrier’s loop or network that has no SLA. Project THOR Maintenance Scheduled Maintenance. NWCCOG’s Network Operator is obligated to endeavor to perform all non-emergency Scheduled Maintenance during pre-established maintenance hours, or windows. Scheduled Maintenance refers to (a) upgrades of hardware or software, (b) upgrades to increase capacity, (c) other pre-scheduled network activity that may degrade the quality of the Services or cause Service interruptions. NWCCOG’s Network Operator is obligated to use reasonable efforts to perform all Scheduled Maintenance weeknights between the hours of 11:00 pm and 6:00 am Mountain Time Zone. TOE shall provide notifications to Customer for Scheduled Maintenance by email at least 24 hours in advance of the work. Emergency Maintenance. Emergency Maintenance refers to efforts to correct Project THOR network conditions which require immediate correction. Emergency Maintenance, while being conducted, may degrade the quality of Services and may result in total disruption of Service. TOE, NWCCOG or its Network Operator may undertake Emergency Maintenance at any time deemed necessary in their sole discretion. TOE shall provide Customer notice of Emergency Maintenance as soon as is reasonably practicable under the circumstances. DocuSign Envelope ID: C9D60C47-CCFD-4288-A19C-E06D4E75C02C 17 Data Breach TOE shall notify Customer of any data breach affecting the network within forty-eight (48) hours of such breach becoming known to TOE. DocuSign Envelope ID: C9D60C47-CCFD-4288-A19C-E06D4E75C02C