HomeMy WebLinkAboutC22-283 Vero Broadband Page 1 of 11 Master Service Agreement Confidential and Proprietary MASTER SERVICE AGREEMENT This Master Service Agreement (“MSA”) is made effective as of__________________, (“Effective Date”) by and between Vero Broadband, LLC, a Colorado limited liability company, and its affiliates and subsidiaries with an address of 2347 Curtis Street, Denver, CO 80205 (“Vero” or “Company”) and Eagle County, Colorado, a body corporate and politic in the State of Colorado , with an address of 500 Broadway Street, Eagle, Colorado (hereinafter “County” or “Customer”). Each may be referred to herein as a “Party” and collectively as the “Parties.” ARTICLE 1 - GENERAL 1.1 Agreement Structure. The purpose of this MSA is to provide general terms, conditions and a framework within which Customer may from time to time purchase certain telecommunications and related infrastructure services (“Services”) from Vero for its use and/or for resale to its customers (“End User Customers”). Additional terms and conditions that apply to each type of Service are set forth in service schedules (each a “Service Schedule”). This MSA, the applicable Service Schedules and Service Orders (as defined in Section 1.2 below) and any other attachments are hereby incorporated herein, and shall collectively be referred to as the “Agreement.” 1.2 Orders for Services. Customer may request Vero to provide a Service by submitting a service order in a form provided by Vero from time to time (“Service Order”) in accordance with the procedures set forth in this Agreement. Customer acknowledges and agrees that Customer is solely responsible for the accuracy of all Service Orders and other information that it provides to Vero. Each accepted Service Order shall incorporate by reference, and shall be subject to, the terms and conditions of this Agreement and the applicable Service Schedule. Accepted Service Orders shall be non-cancellable by Customer. Service Orders shall set forth the term, pricing, service type and location(s), monthly recurring charge (“MRC”), non-recurring charge (“NRC”), and any additional specific terms for the Services. All Service Orders shall be subject to availability and acceptance by Vero. 1.3 Order of Precedence. In the event of an express conflict between a term(s) of this MSA and the term(s) of any Service Schedule and/or Service Order, precedence will be given in the following order: (a) the Service Order but solely with respect to the Service covered by that Service Order; (b) the Service Schedule but solely with respect to the Service covered by that Service Schedule; and (c) this MSA. ARTICLE 2 - PAYMENT TERMS 2.1 Credit and Deposit. If requested by Vero, Customer shall complete and submit Vero’s standard credit application. Vero may from time to time conduct a review of Customer’s credit rating and payment history. Vero may require Customer to pay a deposit before acceptance of a Service Order. Additionally, for any existing Services, Vero may require (i) Customer to pay a deposit or (ii) an increase in the existing deposit, upon the failure of Customer to submit payment of any amount by the Due Date as a condition to the continued provision of such existing Services. Vero shall refund any amount of deposit paid pursuant to this Section, less any amount for payments that Customer still owes to Vero, when Vero determines in good faith, based on Customer’s credit rating and payment history, that such deposit is no longer necessary to ensure payment, but in no event later than after the termination of all Services and termination of this Agreement. 2.2 Billing Commencement. Vero may commence billing and Customer shall be liable for payment for Services upon the Service Activation Date as defined in the applicable Service Schedule. 2.3 Invoicing and Payment Terms. Vero will provide Customer with a monthly itemized invoice, in advance, for the Services together with all other charges due. All amounts due Vero are payable in full within thirty (30) days from date of invoice (“Due Date”). Unless otherwise stated in the Service Order or Service Schedule, Vero shall invoice Customer for any NRC upon acceptance of a Service Order. The Monthly Recurring Charge for the Service shall be adjusted annually effective December 31st of each year by the greater of (i) four percent (4%) or (ii) the cumulative increase in the U.S. Consumer Price Index, All Urban Consumers (CPI-U), U.S. City Average, published by United States Department of Labor, Bureau of Labor Statistics ("CPI Adjustment") for the preceding 12-month period. In the event the Bureau of Labor Statistics (or any successor organization) no longer publishes the CPI-U, Vero may, in its reasonable discretion, designate a replacement index. 2.4 Invoice Disputes. To the extent that Customer disputes any portion of an invoice, Customer shall notify Vero in writing and provide detailed documentation supporting its dispute within forty-five (45) days of the invoice date or the Customer’s right to any billing adjustment shall be waived. In the event of a billing dispute, Customer shall timely pay all undisputed amounts. A dispute regarding bandwidth usage may not be based upon a claim that all or a portion of the charges for the Services were incurred by unauthorized users. DocuSign Envelope ID: 0C8B3E87-3DE3-4709-8C1C-C730B1C9FAC7 8/3/2022 Page 2 of 11 Master Service Agreement Confidential and Proprietary ARTICLE 3 - TERM 3.1 MSA Term. This MSA shall be in effect for a period of five (5) years from the Effective Date (“Initial Term”) unless terminated earlier as otherwise provided for in this MSA, and shall automatically renew for one (1) year periods thereafter (each a “Renewal Term” and together with the Initial Term, shall be referred to as the “Term”) until either Party notifies the other Party of its intent not to renew the MSA at least ninety (90) days prior to the end of the Initial Term or any Renewal Term. Notwithstanding the foregoing, in the event that any Service Order remains in effect following such termination, this MSA shall govern and continue in effect with regard to such Service Order until the termination of such Service Order. 3.2 Service Order Term. The term of each Service Order shall commence on the Service Activation Date for such Service and continue for the period of time specified in that Service Order and thereafter, unless otherwise specified in the Service Order, the Service Order shall automatically renew for one (1) year periods (collectively, the “Service Term”) until terminated by either Party upon at least ninety (90) days written notice prior to the end of the Service Term. Customer shall continue to be responsible for payment to Vero for the Services to be terminated through the end of the ninety (90) day notice period. Following the initial Service Term stated in any Service Order, Vero reserves the right to increase rates for any Services provided thereunder upon at least sixty (120) days’ notice. ARTICLE 4 - ADDITIONAL TERMS 4.1 Customer Premises Equipment - Vero may provide the equipment necessary to deliver service as specified in the Service Order Form. All such Equipment is the sole property of Vero. Under no circumstances may Customer modify, sell, transfer, lease, or encumber the Equipment. In the event of failure or malfunction of Customer Premises Equipment, Vero shall replace equipment at no charge to Customer, unless the failure or malfunction is determined to be the fault of the Customer. In that event, Customer shall be responsible for paying to replace the equipment. 4.2 Early Termination Penalty - Customer’s termination liability for cancellation of service before the end of the contracted term shall be equal to the sum of the NRC and MRC for the remainder of the initial term. 4.3 Equipment and Software Not Provided by Vero Equipment and/or software products that are NOT provided by Vero are the sole responsibility of Customer. Customer is responsible for the use and compatibility of hardware and software not provided by Vero. Neither suspension of service nor impaired service due to hardware/software not provided by Vero shall release Customer from any responsibility under this Agreement. Vero will not be responsible if any changes in hardware, software or services causes equipment not provided by Vero to become obsolete, require modification or alteration, or in any other way affect the quality of service provided to Customer. 4.4 Service Level Agreement. See Exhibit A to this MSA. ARTICLE 5 - DEFAULT; SUSPENSION OF SERVICE 5.1 Customer Default. 5.1.1 Customer is in default of this MSA if Customer (a) fails to cure any monetary breach within ten (10) days of receiving notice of the breach from Vero; (b) fails to cure any non-monetary breach of any terms of the agreement within thirty (30) days of receiving notice of the breach from Vero; or (c) files or initiates proceedings or has proceedings filed or initiated against it, seeking liquidation, reorganization or other relief (such as the appointment of a trustee, receiver, liquidator, custodian or such other official) under any bankruptcy, insolvency or other similar law (each such event shall be a “Customer Default”). 5.1.2 In the event of a Customer Default, Vero may suspend Services to Customer until Customer remedies the Customer Default, or Vero may terminate this MSA and/or any or all of the Services being provided hereunder. Vero may at its sole option, but without any obligation, cure a non- monetary breach at Customer’s expense at any point and invoice Customer for the same. These remedies are in addition to and not a substitute for all other remedies contained in this MSA or available to Vero at law or in equity. 5.2 Vero Default. 5.2.1 Vero is in default of this MSA if Vero fails to cure any non-monetary breach of any material term of this MSA within thirty (30) days of receiving written notice of the breach from Customer (“Vero Default”); provided, however, that Customer expressly acknowledges that Service related failure or DocuSign Envelope ID: 0C8B3E87-3DE3-4709-8C1C-C730B1C9FAC7 Page 3 of 11 Master Service Agreement Confidential and Proprietary degradation in performance is not subject to a claim of a Vero Default. Customer’s sole and exclusive remedy for any failure of Service shall be as set forth in the Service Level Agreement in the applicable Service Schedule. ARTICLE 6 – TAXES AND OTHER FEES AND SURCHARGES All charges for the Services are exclusive of any taxes and other fees and surcharges (as defined below). Except for taxes based on Vero’s net income, Customer shall be responsible for payment of all applicable taxes that arise in any jurisdiction, including, without limitation, property taxes, value added, consumption, sales, use, gross receipts, excise, access, and bypass (“Taxes”). Customer shall also be responsible for any property tax surcharges, additional government fees (including without limitation USF, Federal and State regulatory fees), franchise fees, rights of way fees or charges, license or permit fees, and any other duties, fees, charges or surcharges imposed on incident to, or based upon the provision, sale, or use of the Services. In the event that a landlord, property owner, or other such entity assesses fees, rent, or other charges on Vero for the provision of services to Customer, Vero may pass through those charges to Customer, contracted prices for Service notwithstanding (“Other Fees and Surcharges”). If applicable to the Services being purchased by Customer, such Other Fees and Surcharges will be listed on Customer’s Invoice. If Customer is entitled to an exemption from any of the Taxes or Other Fees and Surcharges, Customer is responsible for presenting Vero with a valid exemption certificate (in a form reasonably acceptable to Vero). Vero will give effect to any valid exemption certificate provided in accordance with the foregoing sentence to the extent it applies to any Service billed by Vero to Customer following Vero’s receipt of such exemption certificate. ARTICLE 7 - LIMITATION OF LIABILITY 7.1 General Limitations. To the extent allowed by law, Vero shall enjoy any statutory protections granted to utility providers, and shall not be liable for injury to or death of any person and for damage to or loss of any property arising out of or attributable to its operations and performance under this Agreement. Vero’s total liability for any and all causes and claims whether based in contract, warranty, negligence or otherwise shall be limited to the lesser of (i) the actual direct damages sustained by Customer; or (ii) an amount equivalent to the total MRC received by Vero from Customer over the preceding six (6) months for the Service affected. Excluding payments due under any Service Order that have not been paid, no cause of action under any theory which accrued more than one (1) year prior to the filing of a complaint alleging such cause of action may be asserted by either Party against the other Party. 7.2 Special Damages. EXCEPT FOR A PARTY’S INDEMNIFICATION OBLIGATIONS SET FORTH BELOW IN ARTICLE 7 AND EXCEPT FOR CLAIMS ARISING FROM A PARTY’S INTENTIONAL MISCONDUCT, IN NO EVENT SHALL EITHER PARTY BE LIABLE TO THE OTHER PARTY FOR ANY INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE OR CONSEQUENTIAL DAMAGES WHATSOEVER, ARISING OUT OF, OR IN CONNECTION WITH, THIS AGREEMENT, INCLUDING BUT NOT LIMITED TO, LOST PROFITS, LOST REVENUE, LOSS OF GOODWILL, LOSS OF ANTICIPATED SAVINGS, LOSS OF DATA, INCURRED OR SUFFERED BY EITHER PARTY, WHETHER IN AN ACTION IN CONTRACT OR TORT, EVEN IF THE OTHER PARTY OR ANY OTHER PERSON HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. EXCEPT AS EXPRESSLY SET FORTH IN THE AGREEMENT, VERO MAKES NO WARRANTY, EXPRESS, IMPLIED, STATUTORY OR OTHERWISE AS TO THE DESCRIPTION, QUALITY, MERCHANTABILITY, COMPLETENESS OR FITNESS FOR ANY PARTICULAR PURPOSE OR USE OF THE SERVICE, LOCAL ACCESS OR ANY OTHER MATTER, AND ANY SUCH WARRANTIES ARE HEREBY EXCLUDED AND DISCLAIMED. 7.3 No Liability for Certain Actions. Vero is not responsible for the content of any information transmitted or received through the Services. Other than as expressly stated in a Service Schedule, Customer shall be solely responsible for all of the security and confidentiality of information it transmits using a Service. Customer shall be solely responsible for all Customer support, pricing and service plans, billing and collections with respect to its End Users Customers, including obtaining all necessary legal or regulatory approvals to provide or terminate the provision of the services to its End User Customers. Vero exercises no control over, and accepts no responsibility for, the content of the information passing through its network, or Customer equipment, and use of any such Service is at Customer's own risk. ARTICLE 8 - INDEMNIFICATION 8.1 Indemnification-Intentional omitted. 8.2 Indemnification Procedures. Intentional omitted. DocuSign Envelope ID: 0C8B3E87-3DE3-4709-8C1C-C730B1C9FAC7 Page 4 of 11 Master Service Agreement Confidential and Proprietary ARTICLE 9 - CONFIDENTIALITY “Confidential Information” shall mean all information, including this Agreement, regarding the telecommunications needs of Customer and the Services that Vero offers under this Agreement which is disclosed by one Party (“Disclosing Party”) to the other Party (“Receiving Party”), to the extent that such information is marked or identified as confidential or proprietary. Information that (i) is independently developed by the Receiving Party, (ii) is lawfully received by the Receiving Party free of any obligation to keep it confidential, or (iii) becomes generally available to the public other than by breach of this Agreement, (iv) approved by the disclosing party for disclosure, or (vi) required to be disclosed pursuant to a requirement of a governmental regulation or law shall not be considered Confidential Information. A Receiving Party, including its officers, directors, employees, partners, affiliates, agents and representatives, shall hold all Confidential Information in confidence from the time of disclosure until three (3) years following its disclosure. During that period, the Receiving Party: (a) shall use such Confidential Information only for the purposes of performing its obligations under this Agreement; (b) shall reproduce such Confidential Information only to the extent necessary for such purposes; (c) shall restrict disclosure of such Confidential Information to employees that have a need to know for such purposes; (d) shall not disclose Confidential Information to any third party without prior written approval of the Disclosing Party except as expressly provided in this Agreement or as required by law; and (e) shall use at least the same degree of care (in no event less than reasonable care) as it uses with regard to its own proprietary or confidential information to prevent the disclosure, unauthorized use or publication of Confidential Information. In the event that the Receiving Party is required to disclose Confidential Information of the Disclosing Party pursuant to law, the Receiving Party will notify the Disclosing Party of the required disclosure with sufficient time for the Disclosing Party to seek relief, will cooperate with the Disclosing Party in taking appropriate protective measures, and will make such disclosure in a fashion that maximizes protection of the Confidential Information from further disclosure. Notwithstanding anything in this Article to the contrary, the fact that Customer is a customer of Vero shall not be deemed Confidential Information and Vero may disclose the same without liability therefor. ARTICLE 10 - FORCE MAJEURE Neither Party shall be liable for any failure of performance hereunder due to causes beyond its reasonable control including, but not limited to, acts of third parties not under the direction or actual control of the Party delayed or unable to perform including, but not limited to, acts of God, fire, explosion, vandalism, cable cut, flood, storm, or other similar catastrophe, any law, order, regulation, direction, action, request or failure to act of the government, or any department, agency, commission, court, or bureau of a government, or any civil or military authority, national emergency, insurrection, riot, war, strike, lockout, or work stoppage (each, a “Force Majeure Event”). The Party claiming relief under this Section shall notify the other Party of the occurrence or existence of the Force Majeure Event and of the termination of such event. ARTICLE 11 - MISCELLANEOUS PROVISIONS 11.1 Subject to Laws. This Agreement is subject to all applicable federal, state and local laws, and regulations, rulings and orders of governmental agencies, including, but not limited to, the Communications Act of 1934, as amended, the Telecommunications Act of 1996, the Rules and Regulations of the Federal Communications Commission (“FCC”), Vero’s applicable tariffs, if any, and the obtaining and continuance of any required approval or authorization of the FCC or any governmental body. Either Party may terminate its obligations under this Agreement and/or a Service Schedule and/or a Service Order without liability if ordered to do so by the final order or ruling of a court or other governmental agency or if such order or ruling would make it impossible for either Party to carry out its obligations under this Agreement. 11.2 Venue, Jurisdiction and Governing Law. Any and all claims, disputes or controversies related to this Agreement, or breach thereof, shall be litigated in the District Court for Summit County, Colorado, which shall be the sole and exclusive forum for such litigation. This Agreement shall be construed and enforced in accordance with, and the validity and performance hereof shall be governed by the laws of the State of Colorado. 11.3 Prevailing Party. In the event that suit is brought or an attorney is retained by either party to enforce the terms of this Agreement or to collect any money as due hereunder or to collect any money damages for breach hereof, the prevailing party shall be entitled to recover, in addition to any other remedy, the reimbursement of reasonable attorneys’ fees, court costs, costs of investigation and other related expenses incurred in connection therewith. 11.4 Relationship of Parties. This Agreement does not create a partnership, joint venture or agency relationship between the Vero and Customer. Neither Party shall have any authority to bind the other Party to any agreement, understanding or other instrument, in any manner whatsoever. DocuSign Envelope ID: 0C8B3E87-3DE3-4709-8C1C-C730B1C9FAC7 Page 5 of 11 Master Service Agreement Confidential and Proprietary 11.5 Assignment; Binding Effect. Customer shall not transfer or assign, voluntarily or by operation of law, its obligations under this Agreement without the prior written consent of Vero. This MSA shall be binding upon and inure to the benefit of the Parties hereto and their respective successors and assigns. Each of the undersigned hereby state that he/she has full authority to enter into this MSA and hereby accepts this MSA on behalf of the companies identified below. 11.6 Notices. Notices under this MSA shall be in writing and delivered by certified mail, return receipt requested, or by nationally recognized courier to the persons whose names and business addresses appear below, and such notice shall be effective on the date of receipt, or refusal of delivery, by the receiving Party. If Customer is disconnecting Service(s) for any reason, it also must deliver notice to Vero by email to “disco@Vero.com” If to Vero: If to Customer: Vero Broadband, LLC Eagle County Attn: Chief Legal Officer Attn: Scott Lingle/IT 2347 Curtis Street 500 Broadway Denver CO 80205 Eagle CO 81631 Billing Disputes: With copy to: Vero Broadband, LLC Eagle County Attorney Attn: Accounts Receivable 500 Broadway 2347 Curtis Street Post Office Box 850 Denver CO 80205 Eagle, Co 81631 E-Mail: atty@eaglecounty.us 11.7 No Third Party Beneficiaries. The representations, warranties, covenants and agreements of the Parties set forth herein are not intended for, nor shall they be for the benefit of or enforceable by, any third party or person not a Party hereto, including without limitation, End User Customers. 11.8 Entire Agreement. This Agreement constitutes the entire understanding between the Parties relating to the rights, duties and obligations granted and assumed herein. Any prior agreements, promises, negotiations or representations regarding the subject matter hereof are of no force or effect. No alteration or variation of the terms of any provision shall be valid unless made in writing and signed by a duly authorized representative of Vero and the Customer. In the event that any one or more of the provisions of this MSA shall for any reason be held to be invalid or unenforceable, the remaining provisions of this MSA shall be unimpaired, and shall remain in effect and be binding upon the Parties. The Services provided by Vero are subject to the condition that they will not be used for any unlawful purposes. No course of dealing between the Parties and no failure to exercise any right hereunder shall be construed as a waiver of any provision hereof. 11.9 Counterparts/Electronic Signatures. This MSA may be executed in two or more counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same instrument. This MSA and any Service Schedule and any Service Orders may be executed via a recognized electronic signature service (e.g., Docusign) or may be signed, scanned and emailed to Vero, and any such signatures shall be treated as original signatures for all applicable purposes. 11.10 Insurance. Vero agrees to provide and maintain at Vero’s sole cost and expense, the following insurance coverage with limits of liability not less than those stated below: a. Types of Insurance. i. Workers’ Compensation insurance as required by law. ii. Auto coverage with limits of liability not less than $1,000,000 each accident combined bodily injury and property damage liability insurance, including coverage for owned, hired, and non-owned vehicles. iii. Commercial General Liability coverage to include premises and operations, personal/advertising injury, products/completed operations, broad form property damage with limits of liability not less than $1,000,000 per occurrence and $1,000,000 aggregate limits. DocuSign Envelope ID: 0C8B3E87-3DE3-4709-8C1C-C730B1C9FAC7 Page 6 of 11 Master Service Agreement Confidential and Proprietary iv. Professional Liability (Errors and Omissions) including Cyber Liability with prior acts coverage for all deliverables, Services and additional services required hereunder, in a form and with insurer or insurers satisfactory to County, with limits of liability of not less than $3,000,000 per claim and $3,000,000 in the aggregate. The insurance shall provide coverage for (i) liability arising from theft, dissemination and/or use of confidential information stored or transmitted in electronic form; (ii) Network Security Liability arising from unauthorized access to, use of or tampering with computer systems including hacker attacks, inability of an authorized third party to gain access to your Software or Services including denial of access or Services unless caused by a mechanical or electrical failure; (iii) liability arising from the introduction of a computer virus into, or otherwise causing damage to, County or a third person’s computer, computer system, network or similar computer related property and the data, software and programs thereon. v. Crime Coverage shall include employee dishonesty, forgery or alteration and computer fraud. If Vero is physically located on County premises, third party fidelity coverage extension shall apply. The policy shall include coverage for all directors, officers and employees of the Vero. The bond or policy shall include coverage for extended theft and mysterious disappearance. The bond or policy shall not contain a condition requiring an arrest or conversion. Limits shall be a minimum of $1,000,000 per loss. b. Other Requirements. i. The automobile and commercial general liability coverage shall be endorsed to include Eagle County, its associated or affiliated entities, its successors and assigns, elected officials, employees, agents and volunteers as additional insureds. A certificate of insurance consistent with the foregoing requirements is attached hereto as Exhibit B. ii. Vero’s certificates of insurance shall include subcontractors, if any as additional insureds under its policies or Vero shall furnish to County separate certificates and endorsements for each subcontractor. iii. The insurance provisions of this Agreement shall survive expiration or termination hereof. iv. The parties hereto understand and agree that the County is relying on, and does not waive or intend to waive by any provision of this Agreement, the monetary limitations or rights, immunities and protections provided by the Colorado Governmental Immunity Act, as from time to time amended, or otherwise available to County, its affiliated entities, successors or assigns, its elected officials, employees, agents and volunteers. v. Vero is not entitled to workers’ compensation benefits except as provided by the Vero, nor to unemployment insurance benefits unless unemployment compensation coverage is provided by Vero or some other entity. The Vero is obligated to pay all federal and state income tax on any moneys paid pursuant to this Agreement. DocuSign Envelope ID: 0C8B3E87-3DE3-4709-8C1C-C730B1C9FAC7 Page 7 of 11 Master Service Agreement Confidential and Proprietary COUNTY OF EAGLE, STATE OF COLORADO, By and Through Its COUNTY MANAGER By: ______________________________ Jeff Shroll, County Manager VERO BROADBAND, LLC Signature: Name: Title: DocuSign Envelope ID: 0C8B3E87-3DE3-4709-8C1C-C730B1C9FAC7 Evan Biagi Chief Revenue Officer Page 8 of 11 Master Service Agreement Confidential and Proprietary Exhibit A SERVICE LEVEL AGREEMENT Availability is based on “Network Downtime”, which exists when a particular circuit of customer is unable to transmit and receive and utilize a Service. In order for the Service Level agreement to apply, any such failure must be reported by Customer and recorded in Company trouble ticket system. Customer must record their ticket number. Downtime shall be measured from the time the trouble ticket is opened to the time the affected Service is again usable. Exclusive Remedy In the event Company does not meet a Service Level for any calendar month, subject to the restrictions and exclusions below, Customer’s exclusive remedy shall be a service credit, not to exceed 100% of customer MRC for that specific Service, based on the SLA Level met. In order to receive service credits set forth herein, such requests shall be made no later than five business days following the last day of the month in which the relevant SLA was not met. Failure to comply with these service credit request requirements will forfeit your right to receive a credit. A credit will be applied only to the month in which the event giving rise to the credit occurred. “Affected Service” refers to the particular Product that fails to meet the relevant SLA. In no event will the total credit, in the aggregate for all credits issued in one month exceed the equivalent of 50% of the relevant MRCs for the Affected Service. The Customer may not deduct or set-off a service credit, if any, from an invoice, but must, in all cases, wait for the invoice to reflect the service credit before the Customer can realize it. Given that damages from service interruptions or other failures to provide the Service under this SLA would be impossible to ascertain, and that the remedies stated in this SLA have been determined as a reasonable estimate of compensation, and not as a penalty, Customer’s remedy shall be fixed and liquidated as set forth in this SLA. In no event will the total remedies available to Customer exceed those set forth in this SLA. The provisions of this SLA state Customer’s sole and exclusive remedies for Service interruptions or Service deficiencies of any kind whatsoever. Each Service outage shall be treated as a discrete event, and the credits specified in the SLA shall be given for each separate Service outage. To apply for a service credit, Customer must open a billing ticket with Company Billing department within five (5) business days after the end of the calendar month in which the failure occurred. Exclusions Company shall not be liable for SLA credits under the following conditions: Non-Company-controlled facilities. Customer will not be entitled to a service credit for an outage that is the direct result of any network failure associated with a local loop or any other facilities that are not owned, operated or controlled by Company, including Customer Provided Equipment (CPE) provided by that carrier. Interruption on a service for which the Start of Service Date has not yet commenced; 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; Interruptions due to power failure at customer premises, or the failure or poor performance of CPE; DocuSign Envelope ID: 0C8B3E87-3DE3-4709-8C1C-C730B1C9FAC7 Page 9 of 11 Master Service Agreement Confidential and Proprietary Interruptions during any period in which Company or its agents are not afforded access to the 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; Interruptions during any period that Company has communicated to Customer in any manner that the Service will be unavailable for Normal Maintenance or grooming purposes, or Customer has released the Service to Company for the installation of a customer Service Order; 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; Interruptions resulting from Customer’s use of Service in an unauthorized or unlawful manner; Interruptions resulting from a Company disconnect for Cause; Interruptions resulting from incorrect, incomplete or inaccurate Service orders from Customer (Including without limitation Customer’s over subscription of Circuits); Interruptions due to improper or inaccurate network specifications provided by customer; Special configurations of the standard service that has been mutually agreed to by Company; provided, however, Company may provide a separate service level agreement to Customer for those special configurations; Company inability to deliver Service by the Customer Commit Due; Interruptions resulting from Force Majeure, or other circumstances beyond the reasonable control of Company or its agents. DocuSign Envelope ID: 0C8B3E87-3DE3-4709-8C1C-C730B1C9FAC7 Page 10 of 11 Master Service Agreement Confidential and Proprietary Service Level Agreement – Dedicated Internet Access Data Availability is defined as the ability to communicate through Company’s network to the Internet. Data shall not be considered to be unavailable under the following circumstances: • inability to pull up specific web sites • “slow” performance not caused by identified circuit errors • trouble on Customer local network • problems with or failure of Customer computer, tablets, phones, or other customer-owned equipment Data Availability shall be guaranteed only to the specified Network Port. The monthly Service Availability Percentage for Dedicated Internet Access is calculated as follows: (Minutes of Outage) / 43,200 (30 days x 24 hours/day x 60 minutes in an hour) Network Port Availability Goal Outage Credit 100% < 5 Minutes No Credit 5 Minutes – 1 hour 1 day’s credit and 1 day credit each hour after until 50% MRC maximum is reached Data Availability Goal Data Availability Outage Credit 99.5% 99.01-99.49% 10% of MRC 99.5% 90.00-99.00% 25% of MRC 99.5% < 90.00% 50% of MRC DocuSign Envelope ID: 0C8B3E87-3DE3-4709-8C1C-C730B1C9FAC7 Page 11 of 11 Master Service Agreement Confidential and Proprietary Service Level Agreement – Ethernet Data Availability is defined as the ability to communicate through Company’s network from specified A Location to Z Location. Data shall not be considered to be unavailable under the following circumstances: • “slow” performance not caused by identified circuit errors • trouble on Customer local network • problems with or failure of Customer computer, tablets, phones, or other customer-owned network equipment Data Availability shall be guaranteed only to the specified Network Port. The monthly Service Availability Percentage for Ethernet Service is calculated as follows: ((Minutes of Outage) / 43,200 (30 days x 24 hours/day x 60 minutes in an hour) Data Availability Upper Level Lower Level Outage Credit 100% 99.9% No Credit 99.9% 99.5% 5% of MRC 99.5% 99.0% 10% of MRC 99.0% 95.0% 25% of MRC 95.0% 0.0% 50% of MRC The length of each Outage shall be calculated in full minutes for the purposes of determining Outage Credits. DocuSign Envelope ID: 0C8B3E87-3DE3-4709-8C1C-C730B1C9FAC7 Customer:Eagle County Billing Account #: Contact:Scott Lingle Phone:Email:Scott.Lingle@eaglecounty.us Technical Contact:Scott Lingle Phone:Email:Scott.Lingle@eaglecounty.us Service Order #:VB-001 Product:Ethernet Order Type:Bandwidth:10 Gig Service Term:36 months Port Size:10 Gig Montly Recurring Fees Non Recurring Fees Location Details Total Montly Recurring Charges $8,000 Quantity PriceProduct 10 Gig Ethernet 1 $1,000 $1,000 New Vault Gypsum Transportation Building New Vault Eagle County Building 1 1 $6,000 10 Gig Ethernet 1 $1,200 Total Montly Recurring Charges $1,200 Quantity Price Order Information Service Order Details Product Details New Pricing Details Product DocuSign Envelope ID: 0C8B3E87-3DE3-4709-8C1C-C730B1C9FAC7 A LOC Address: 500 Broadway, Eagle, CO 81631 Hand off location:Telco Closet Hand off details:TBD Z LOC Address: 3289 Cooley Mesa Rd, Gypsum, CO 81637 Hand off location:Telco Closet Hand off details:TBD Name Title Date Vero and County to agree on hand off details as laterals are being built. Order Notes Vero to build laterals into A and Z Loc. Vero to replace County vault at Z LOC Address. Vero to place new vault at A LOC. Terms This Service Order dated as of the last signature date herein (“Service Order Effective Date”), is executed and delivered pursuant to that certain Master Service Agreement (“MSA”) by and between Vero and ________________ on behalf of itself and its affiliates (“Customer”), and Vero, on its own behalf and on behalf of its Affiliates ("Vero"). Except as otherwise expressly provided herein, all terms and conditions of the MSA are incorporated herein by reference and made a part hereof for all purposes. Signature Technical Details 11.11 Notwithstanding anything to the contrary contained in this Agreement, County shall have no obligations under this Agreement after, nor shall any payments be made to Vero in respect of any period after December 31 of any year, without an appropriation therefor by County in accordance with a budget adopted by the Board of County Commissioners in compliance with 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). Compensation. County shall compensate Vero for the performance of the Services in a sum computed and payable as set forth in Service Order. The performance of the Services under this Agreement shall not exceed $52,000. Vero shall not be entitled to bill at overtime and/or double time rates for work done outside of normal business hours unless specifically authorized in writing by County. DocuSign Envelope ID: 0C8B3E87-3DE3-4709-8C1C-C730B1C9FAC7 County Manager 8/3/2022 Jeff Shroll SHOULD ANY OF THE ABOVE DESCRIBED POLICIES BE CANCELLED BEFORE THE EXPIRATION DATE THEREOF, NOTICE WILL BE DELIVERED IN ACCORDANCE WITH THE POLICY PROVISIONS. INSURER(S) AFFORDING COVERAGE INSURER F : INSURER E : INSURER D : INSURER C : INSURER B : INSURER A : NAIC # NAME:CONTACT (A/C, No):FAX E-MAILADDRESS: PRODUCER (A/C, No, Ext):PHONE INSURED REVISION NUMBER:CERTIFICATE NUMBER:COVERAGES IMPORTANT: If the certificate holder is an ADDITIONAL INSURED, the policy(ies) must have ADDITIONAL INSURED provisions or be endorsed. If SUBROGATION IS WAIVED, subject to the terms and conditions of the policy, certain policies may require an endorsement. A statement on this certificate does not confer rights to the certificate holder in lieu of such endorsement(s). THIS CERTIFICATE IS ISSUED AS A MATTER OF INFORMATION ONLY AND CONFERS NO RIGHTS UPON THE CERTIFICATE HOLDER. THIS CERTIFICATE DOES NOT AFFIRMATIVELY OR NEGATIVELY AMEND, EXTEND OR ALTER THE COVERAGE AFFORDED BY THE POLICIES BELOW. THIS CERTIFICATE OF INSURANCE DOES NOT CONSTITUTE A CONTRACT BETWEEN THE ISSUING INSURER(S), AUTHORIZED REPRESENTATIVE OR PRODUCER, AND THE CERTIFICATE HOLDER. OTHER: (Per accident) (Ea accident) $ $ N / A SUBR WVD ADDL INSD THIS IS TO CERTIFY THAT THE POLICIES OF INSURANCE LISTED BELOW HAVE BEEN ISSUED TO THE INSURED NAMED ABOVE FOR THE POLICY PERIOD INDICATED. NOTWITHSTANDING ANY REQUIREMENT, TERM OR CONDITION OF ANY CONTRACT OR OTHER DOCUMENT WITH RESPECT TO WHICH THIS CERTIFICATE MAY BE ISSUED OR MAY PERTAIN, THE INSURANCE AFFORDED BY THE POLICIES DESCRIBED HEREIN IS SUBJECT TO ALL THE TERMS, EXCLUSIONS AND CONDITIONS OF SUCH POLICIES. LIMITS SHOWN MAY HAVE BEEN REDUCED BY PAID CLAIMS. $ $ $ $PROPERTY DAMAGE BODILY INJURY (Per accident) BODILY INJURY (Per person) COMBINED SINGLE LIMIT AUTOS ONLY AUTOSAUTOS ONLY NON-OWNED SCHEDULEDOWNED ANY AUTO AUTOMOBILE LIABILITY Y / N WORKERS COMPENSATION AND EMPLOYERS' LIABILITY OFFICER/MEMBER EXCLUDED? (Mandatory in NH) DESCRIPTION OF OPERATIONS below If yes, describe under ANY PROPRIETOR/PARTNER/EXECUTIVE $ $ $ E.L. DISEASE - POLICY LIMIT E.L. DISEASE - EA EMPLOYEE E.L. EACH ACCIDENT EROTH-STATUTEPER LIMITS(MM/DD/YYYY)POLICY EXP(MM/DD/YYYY)POLICY EFFPOLICY NUMBERTYPE OF INSURANCELTRINSR DESCRIPTION OF OPERATIONS / LOCATIONS / VEHICLES (ACORD 101, Additional Remarks Schedule, may be attached if more space is required) EXCESS LIAB UMBRELLA LIAB $EACH OCCURRENCE $AGGREGATE $ OCCUR CLAIMS-MADE DED RETENTION $ $PRODUCTS - COMP/OP AGG $GENERAL AGGREGATE $PERSONAL & ADV INJURY $MED EXP (Any one person) $EACH OCCURRENCE DAMAGE TO RENTED $PREMISES (Ea occurrence) COMMERCIAL GENERAL LIABILITY CLAIMS-MADE OCCUR GEN'L AGGREGATE LIMIT APPLIES PER: POLICY PRO-JECT LOC CERTIFICATE OF LIABILITY INSURANCE DATE (MM/DD/YYYY) CANCELLATION AUTHORIZED REPRESENTATIVE ACORD 25 (2016/03) © 1988-2015 ACORD CORPORATION. All rights reserved. CERTIFICATE HOLDER The ACORD name and logo are registered marks of ACORD HIRED AUTOS ONLY 8/2/2022 IMA,Inc.-Colorado 1705 17th Street,Suite 100 Denver CO 80202 IMA Denver Team 303-534-4567 DenAccountTechs@imacorp.com Citizens Insurance Company of America 31534 VEROFIB-01 Allmerica Financial Benefit Insurance Company 41840VFNHoldings,Inc.,Vero Fiber Networks LLC,Vero Broadband LLC PO Box 1110 Boulder,CO 80306 The Hanover Insurance Company 22292 HSB Specialty Insurance Company 14438 578032932 A X 1,000,000 X 100,000 10,000 1,000,000 2,000,000 X X ZB4-H980080-00 4/1/2022 4/1/2023 2,000,000 B 1,000,000 X X X AW4H94217900 4/1/2022 4/1/2023 C X X 10,000,000UH4H98008104/1/2022 4/1/2023 10,000,000 X 0 D Cyber Liability 662116001 4/1/2022 4/1/2023 Per Claim Aggregate Per Claim Deductible $2,000,000 $2,000,000 $25,000 Property Coverage:Policy #ZB4-H980080-00 Effective Dates:4/1/2022-4/1/2023 Insurer A:See Above $5,000,000 Business Income with Extra Expense Limit;Special Including Theft $2,010,481 Blanket Personal Property Limit;Special Including Theft;Replacement Cost $100,000 Equipment Breakdown Limit;Special Including Theft See Attached... Eagle County 500 Broadway Street Eagle CO 81631 DocuSign Envelope ID: 0C8B3E87-3DE3-4709-8C1C-C730B1C9FAC7 ACORD 101 (2008/01) The ACORD name and logo are registered marks of ACORD © 2008 ACORD CORPORATION. All rights reserved. THIS ADDITIONAL REMARKS FORM IS A SCHEDULE TO ACORD FORM, FORM NUMBER:FORM TITLE: ADDITIONAL REMARKS ADDITIONAL REMARKS SCHEDULE Page of AGENCY CUSTOMER ID: LOC #: AGENCY CARRIER NAIC CODE POLICY NUMBER NAMED INSURED EFFECTIVE DATE: VEROFIB-01 1 1 IMA,Inc.-Colorado VFN Holdings,Inc.,Vero Fiber Networks LLC,Vero Broadband LLC PO Box 1110 Boulder,CO 80306 25 CERTIFICATE OF LIABILITY INSURANCE Installation Floater Coverage:Policy #IH4 H987455 00 Effective Dates:4/1/2022-4/1/2023 Insurer C:See Above $150,000 Limit;$5,000 Deductible Contractor's Equipment Coverage:Policy #IH4 H987455 00 Effective Dates:4/1/2022-4/1/2023 Insurer C:See Above $591,800 Scheduled Equipment Limit;$2,500 Deductible $100,000 Newly Acquired Equipment Limit;$2,500 Deductible $25,000 Unscheduled Equipment Limit;$2,500 Deductible Eagle County is included as Additional Insured on the General Liability and Automobile Liability policies,if required by written contract or agreement subject to the policy terms and conditions. DocuSign Envelope ID: 0C8B3E87-3DE3-4709-8C1C-C730B1C9FAC7