HomeMy WebLinkAboutContract 42519 CITY SECRETARY
CONTRACT NO. 4 25111
s
Charter
` u rne-t-ft,
200802110680820
200$02110680820
BUSINESS VIDEO AND MUSIC SERVICE AGREEMENT
This Service Agreement rAgreement")is executed and effective upon the latest date of the signatures set forth in the signature block
below("Effective Hate")by and between Marcus Cable Associates, L.L.C. ,{"Charter Business' or"Charter"}with boat offices at 15100
Trinity Blvd. Ste 500,Fort Worth TX 76155 and City of FTw- Master,{"Customer"}with offices located at 401 w 2NID ST,FT WORTH,
TX 76102-7302.
Both parties desire to enter into this Agreement in order to set forth the general'terms under which Charter is to provide Customer with
Charter's services ("Service!'or"Services")to Customer site(s), the scope and description to be specified per site below and/or in ac
Service order(s)executed by both parties(each instance of site identification and order a`Service Order`or collectively the"Service
Orders"),which shall be incorporated in this Agreement upon execution. This Agreement and each Service Order will be effective
only after bath parties have signed each document. �
SERVICE ORDER
Under the Business Video and Music Service Agreement
CUSTOMER INFORMATION:
Account Name:City of FTly-Master
Invoicing Address:441 w 2ND ST,FT WORTH,TX 76102
Invoicing Special Instructions:
Customer Federal Tax ID#:75-60000528
SITE-SPECIFIC INFORMATION:
❑ New❑ Renew 0 Change: Order Type:Existing:Newly Contracted
Service Location(Address):441 W 2ND ST.FT WORTH,TX 76102-7342
Service Location Name(for purposes of identification)
Service Location.Special instructions:
21 Non-hospitality or Non-Video
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FT. WORTH, TX
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•
• Customer Contact Information. To facilitate communication the following information is provided as a convenience and may be
updated at any time without affecting the enforceability of the terms and conditions herein:
Billing Contact Site Contact Technical Contact
Name
Phone
Fax
Cell
Pager
Email Address
MONTHLY SERVICE FEES :
Video Services:
Video Service: Basic and Expanded total monthly costs as of 2/1112008 for 558 outlets- $5,552.10
Pricing per outlet: 2008-$9.95 per outlet
2009-$10.75 per outlet
2010-$11.50 per outlet
2011 -$12.00 per outlet
2012-$12.00 per outlet
'Pricing effective January 1,of each year
Music Services:
Music Choice: $0.00
2. TOTAL FEES.
Total Monthly Service Fees of $5,552.90 for 558 outlets are due upon receipt of the monthly invoice. Said
monthly total will change upon the addition/deletion of outlets at any city building at the agreed rate
listed above.
For any routine installation, there will now be an installation charge of $75 per truck roll. The city will
still be responsible for any construction or additional costs associated with any given installation, but
Charter will not move forward without written approval by the city of said costs.
I SERVICE PERIOD. The initial Service Period of this Service Order shall begin on the date installation is completed and shall
continue for a period of 60 months. Upon expiration of the initial term,this Service Order shall automatically renew for successive
one-month terms unless either party terminates this Service Order by giving thirty(30)days prior written notice to the other party
before the expiration of the current term. Video Services are subject to rate increases during the term of the contract as described
in Video, Music and Content Services.
4. NO UNTRUE STATEMENTS. Customer further represents and warrants to Charter that neither this Service Order, nor any other
information, including without limitation, any schedules or drawings furnished to Charter contains any untrue or incorrect statement
of material fact or omits or fails to state a material fact.
5. CONFIDENTIALITY. Customer hereby agrees to keep confidential and not to disclose directly or indirectly to any third party, the
terms of this Service Order or any other related Service Orders, except as may be required by law. If any unauthorized disclosure
is made by Customer and/or its agent or representative, Charter shall be entitled to, among other damages arising from such
unauthorized disclosure, injunctive relief and a penalty payment in the amount of the total One-Time Charges associated with this
Service Order, and Charter shall have the option of terminating this Service Order, other related Service Orders and/or the Service
Agreement.
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6. FACSIMILE. A facsimile of a duly executed Agreement and Service Order signed by both authorized parties shall be considered
evidence of a valid order and Charter may rely on such facsimile copy of the Agreement and Service Order as if it were the original.
NOW THEREFORE, Charter and Customer agree to the terms and conditions included within this Service Agreement, including the
Standard Terms of Service which follow,and hereby execute this Service Agreement by their duly authorized representa#vas.
Marcus Cable associates, L LC. City of FTW-Masten �-►
By:Charter Comrnun i atf I =' 'f
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Name: N a rne: `" tom � �
Title: + Tine: " '
Date: Dale:
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Charter Business Account Executive:
Name. Brandon Johnson Telephone: 817-298-3548
Sales Carle: Fax: 817-358--7502
Attested by:
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STANDARD TERMS OF SERVICE
1. SERVICE. Charter agrees to provide the Services during such notice shall be deemed an acceptance by
the Service period to the Customer at the site(s) identified Customer of such charges. Customer shall be
in the Service Orders)."Service Period,"is the time period assessed such additional One-Time Charges and/or
starting on the date the Services are fully functional in all adjusted Monthly Service Fees, either (i) in advance
material respects and available for use as described in a of implementation of the change request or (ii)
Service Order or as reflected in the first invoice(the"Turn- beginning on the Customer's next and/or subsequent
up Date"), and continuing for the number of months invoices).
specified in the Service Orders). (e) Site Visits and Repairs. if Customer's misuse, abuse
2. STANDARD PAYMENT TERMS. Customer agrees to or modification of the Services, Equipment or Network
pay the monthly Service fees and one-time charges as set facilities supplied by Charter necessitates a visit to the
forth in the Service Order(s) incorporated under this Customer site for inspection, correction or repair,
Service Agreement by execution thereof by the parties. Charter shall charge Customer a site visit fee as well
"Monthly Service Fees" is the amount specified as the as charges for any Equipment or Network repair or
monthly fee to be paid by the Customer for the Services. replacement necessary to restore Service.
"One-Time Charges" include, but are not limited to, (f) Invoicing Errors. Customer must provide notice to
construction, Service installation charges), repair, Charter of any invoice errors or disputed charges
replacement, or any non-recurring charges. "Service within thirty(30)days of the invoice date on which the
Installation Charge" is the amount specified as the fee for errors and/or disputed charges appear in order for
installation of equipment and network facilities. Customer to receive any credit that may be due.
"Equipment" means components including, but not limited
to, any gateway or edge electronic device, antenna, node, (g) Late Fees. If Customer fails to pay an invoice within
concentrator, bridge, receiver, transmitter, transceiver, thirty(30)days of issuance, Charter will issue a notice
router, switch, hub or communications lines/cables that of late payment. Customer will be charged a late fee
makes up the network of Charter-provided Equipment, of not more than five percent (5%) per month on any
facilities and materials (the "Network") necessary to outstanding past-due balance.
provide the Services. (h) Non-Payment. If Services are disconnected because
(a) Monthly Service Fees. Customer agrees to pay Customer does not pay the invoice, Charter may, in
Monthly Service Fees in advance of the provision of its sole discretion, require that Customer pay all past
the Services. Monthly Service Fees are due upon due charges, a reconnect fee, and a minimum of one
receipt of the invoice. month's Monthly Service Fees in advance before
(b) One-Time Charges. Customer agrees to pay the
Charter will reconnect Services.
One-Time Charges as described on the applicable (i) Returned Checks. Bankcard or Credit Card Charge
Service Orders). Backs and Collection Fees. Charter may charge a
(c) Taxes Fees and Government Charges. Customer reasonable service fee for all returned checks and
agrees to pay any sales, use, property, excise or bankcard, credit card or other charge card charge-
other taxes, franchise fees, and governmental backs.
charges (excluding income taxes), arising under this U} Collection Fees. Customer shall be responsible for all
Agreement, including, without limitation, applicable expenses, including reasonable attorney's fees and
state property taxes. A copy of the Customer's tax collection costs, incurred by Charter in collecting any
exemption document, if applicable, must be provided unpaid amounts due under this Agreement.
to Charter to certify tax-exempt status. Tax-exempt (k) Bundled Pricing. In the event Customer has selected
status shall not relieve Customer of its obligation to a Charter Business Bundle (as must be specifically
pay any applicable franchise fees. indicated by component Service in this Service
(d) Charges for Change Reguests. Any charges Order),the following conditions shall apply:
associated with Service and Equipment installations, In consideration for Customer's purchase of the
additions, modifications, substitutions, upgrades, Charter Business Bundle and only with respect to that
reconfigurations, rebuilds or relocations at a site and period time during which Customer continues to
requested by Customer subsequent to executing a purchase such Charter Business Bundle(for purposes
Service Order for that site, are the sole financial
responsibility of Customer. Charter shall notify of clarification, continues purchase of each bundled
Customer, orally or in writing, of any additional One- Service component of such Charter Business Bundle),
Time Charges and/or adjustments to Monthly Service Charter agrees to apply a discount to the Services
ordered under this Service Order. Such discount has
Fees associated with or applicable to such Customer been applied to the Services included in Charter's
change requests prior to making any such additions bundled pricing offer and is reflected in the Monthly
or modifications. Customer's failure to object to such
additional charges within three (3) days of receiving
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Services Fees for such Services contained in this determine in its sole discretion, Charter may terminate
Service Order. the affected Service Order{s} without liability upon
For purposes of clarification, in the event Charter's written notice to Customer.
provision to Customer of one or more of the bundled {c} Site Preparation. Customer shall be responsible, at
Service components of the Charter Business Bundle, its own expense, for all site preparation activities
is discontinued or otherwise terminated for any necessary for delivery and installation of the
reason, the pricing for the remaining Service Equipment and the installation and ongoing provision
components listed above shall revert to Charter's a Ia of Services, including, but not limited#o,the relocation
carte pricing for such Services in effect at the time of of Customer's equipment, furniture and furnishings as
the discontinuation or termination. Termination necessary to access the Equipment and/or Services.
liabilities applicable to the Services under the Service To ensure proper installation of the Equipment and
Agreement shall otherwise remain unchanged. the Services, Customer may be required to provide
electrical or other utility service, and/or accurate
3. SERVICE LOCATION ACCESS and INSTALLATION. physical network diagrams and/or maps prior to
(a) Access. Customer shall provide Charter with installation.
reasonable access to each Service Location listed on (d) Installation. Charter will schedule one or more
a Service Order as necessary for Charter to review, installation visits with Customer. Customer's
install, inspect, maintain or repair any Equipment or authorized representative must be present during
Materials necessary to provide the Services. If installation. During installation, Charter shall test to
Customer owns and/or controls the Service confirm that the Services can be accessed from the
Locations), Customer grants to Charter permission to Service Location. In the event that during the course
enter the site{s}for the exercise of such right. If a site of installation Charter determines additional work is
is not owned and/or controlled by Customer then necessary to enable Charter to deliver the Services to
Customer will obtain, with Charter's assistance, the Service Location, Charter will notify Customer of
appropriate right of access. If Customer is not able to any new or additional One-Time Charges that may be
gain right of access for a site from owner and/or necessary. In the event the Customer does not agree
controlling party, Charter's obligations under this
to pay such One-Time Charges by executing a
Agreement and the appropriate Service Order for revised Service Order reflecting such new charges
such site are terminated, null and void. (and superseding the underlying applicable Service
(b) Installation Review; Subsequent Interference. Order) within five (5) business days of receiving the
Charter may perform an installation review of each revised Service Order, Customer and/or Charter shall
Service Location prior to installation of the Services at have the right to terminate the applicable Service
that Service Location. Customer may be required to Order. Customer shall be responsible for access
provide Charter with accurate site and/or physical paths, moving or relocating furniture, furnishings, or
network diagrams or maps of a Service Location prior equipment, or other preparation activities necessary
to the installation review. Charter may directly or for Charter to install the Services. Customer shall
through its agents inspect the Customer Premises connect any Equipment provided by Charter to
before beginning installation, and shall satisfy itself Customer's computer or network to enable access to
that safe installation and proper operation of its the Services. With respect to any excavation, Charter
Equipment and the Services are possible in the shall be responsible for reasonable restoration efforts
location(s) provided by Customer. If Charter, in its necessary to address any displacement resulting from
sole discretion, determines that safe installation such excavation.
and/or activation of one or more of the Services will
have negative consequences to Charter's personnel (e) Ongoing Visits. Charter will need access to the
Customer Premises from time to time for inspecting,
or Network and/or cause technical difficulties to constructing, installing, operating and maintaining
Charter or its customers, Charter may terminate the Charter's Network facilities, Equipment or materials
Service Order effective upon prior written notice to and/or any related facilities. Except in emergency
Customer or may require the Customer to correct the situations, Charter will obtain approval from the
situation before proceeding with installation or Customer (not to be unreasonably withheld or
activation of the Services. delayed) before entering the Customer Premises. At
In the event during the initial or any renewal Service Charter's request, Customer, or a representative
Period, (i) proper operation of Charter's Equipment designated by Customer, will accompany Charter's
and/or unhindered provision of the Services is no employees or agents into any unoccupied unit for the
longer possible as a result of interference or purpose of installing, repairing, maintaining,
obstruction caused by the acts or omissions of upgrading,and/or removing the Equipment.
Customer, a third party or any Force Majeure Event, 4. EQUIPMENT AND MATERIALS.
or {ii} such interference/obstruction or the cause
thereof will have negative consequences to Charter's (a) Responsibilities and Safeguards. Except as
personnel or Network and/or cause technical otherwise provided in this Service Agreement or any
difficulties to Charter or its customers,as Charter may Service Orders), neither party shall be responsible
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a
for the maintenance or repair of cable, electronics, which they were received subject to ordinary wear
structures, Equipment or materials owned by the and tear. Customer will not sell, lease, assign nor
other party, provided, however, that subject to the encumber any Equipment.
Indemnification limitations set forth in section 11
hereunder, each party shall be responsible to the (c) E ui ment Return Retrieval Re air and
other for any physical damage or harm such party Replacement. Immediately upon termination of
causes to the other party's personal or real property Services ("Termination"shall mean the termination of
through the damage-causing party's negligence or the Service Agreement and/or Service Order{s}), at
willful misconduct. the discretion of Charter, Customer shall return, or
allow Charter to retrieve, the Equipment supplied by
Without limiting the foregoing, Customer will not be liable Charter to Customer, in good condition. Failure of
for loss of or damage to cable, electronics, structures Customer to return, or allow Charter to retrieve,
or Equipment owned by Charter and located on Equipment within ten (1 0) days after Services are
Customer Premises which occurred as a result of the terminated will result in a charge to Customer's
occurrence of any Force Majeure Event, natural account equal to the full retail cost of replacement of
disaster or other casualty loss over which Customer the unreturned Equipment. In addition, Customer
has no control. agrees to pay for the repair or replacement of any
Customer shall: damaged Equipment (whether or not caused by
Customer's negligent act, except such repairs or
i Safeguard Charter-provided Equipment against replacements as may be necessary due to normal
others; and ordinary wear and tear or material/workmanship
defects), together with any costs incurred by Charter
ii Not add other equipment nor move, modify, in obtaining or attempting to regain possession of
disturb, alter, remove, nor otherwise tamper with such Equipment, including, but not limited to,
any portion of the Equipment; reasonable attorneys'fees.
iii Not hire nor permit anyone other than personnel 5. VIDEO, MUSIC AND CONTENT SERVICE. This Video,
authorized by Charter acting in their official Music and Content Service section shall only apply if
capacity to perform any work on the Equipment; Video, Music and Content Services are included in this
and Service Agreement or any related Service Order.
iv Not move nor relocate Equipment to another Continued reception of the Video Services is subject to
location or use it at an address other than the these Terms and Conditions. Charter may, in its sole
Service location without the prior written consent discretion, preempt, rearrange, delete, add, discontinue,
of Charter. modify or otherwise change any or all of the advertised
programming, packaging, and distribution of its Video
Any unauthorized connection or ether tampering with
the Services, Equipment, any system or its Services or of any of Charter's Video Services packages.
components shall be cause for immediate (a) _Payment Terms. Increases in any and all
disconnection of Services, termination of this programming,T license, copyright, retransmission
Agreement and/or legal action, and Charter shall be and/or other costs, charges, fees or amounts
entitled to recover damages, including, but not limited including, without limitation, taxes and any and all
to, the value of any Services and/or Equipment other governmental fees, charges and/or other
obtained in violation of this Agreement in addition to amounts, shall not be deemed to be included in the
reasonable collection costs including, but not limited Monthly Service Fees or limited by any provision in
#o, reasonable attorneys' fees. Should any antenna, this Agreement, and may be passed on to Customer
or signal amplification system for use in connection at any time when such costs are incurred by,
with communication equipment hereafter be installed assessed or required of Charter.
on the Premises which interferes with the Services The initial Monthly Service Fees shall remain in effect for
provided by Charter hereunder, Customer the first 12-months of this Agreement. Thereafter,
acknowledges and agrees that Charter shall not be Charter may increase the Monthly Service Fees from
obligated to distribute a quality signal to the Premises y
better than the highest quality which can be furnished time to time upon thirty {30} days' prior written notice
as a result of such interference, until such time as the to Customer. Customer hereby agrees to any such
interference is eliminated or corrected by Customer or increasesthat do not exceed ten percent(10%)�%}of the
a third party. Customer,s total Monthly Service Fees incurred in the
month immediately preceding the month in which the
(b) Ownership. Customer understands and agrees that increase is to be effective. Increases shall not occur
notwithstanding any other provision contained herein more frequently than once per 12-month period. In
to the contrary, all Equipment and materials installed the event such increased Monthly Service Fee would
or provided by Charter are and shall always remain exceed the amount permitted under applicable law,
the property of Charter, shall not become a fixture to the Monthly Service Fees shall be increased only to
the Premises, and must be returned to Charter at any the maximum allowable under applicable law.
time Services are disconnected in the condition in Notwithstanding the foregoing, increases in any and
all programming, license, copyright, retransmission
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and/or other costs, charges, fees or amounts Customer shall not, and shall not authorize or permit
• including, without limitation, taxes and any and all any other person to (i) charge a cover charge or
other governmental fees, charges and/or other admission fee to any Service Location(s) at the time
amounts, shall not be limited by any provision in this the Services(or any part thereof)are being performed
Agreement, and may be passed onto Customer at or are to be performed; (ii)permit dancing, skating or
any time when such costs are passed on to Charter. other similar forms of entertainment or physical
activity in conjunction with the performance of the
Services (or any part thereof) unless Customer can
(b) Music Rights Fees. In all cases, Customer is demonstrate to the reasonable satisfaction of Charter
responsible for and must secure any music rights that Customer or a third-party has obtained a then-
and/or pay applicable fees required by the American current music license permitting such activity; or (iii)
Society of Composers, Authors & Publishers insert any commercial announcements into the
("ASCAP"), Broadcast Music, Inc. CBMI") and Services or interrupt any performance of the Services
SESAC, Inc. ("SESAC") or their respective for the making of any commercial announcements. If
successors, and any other entity, person or Customer fails to abide by these restrictions,
governmental authority from which a license is Customer accepts liability for any and all claims made
necessary or appropriate in connection with against Customer or Charter due to any unauthorized
Customer's transmission, retransmission, commercial exhibition and Customer agrees to
communication,distribution, performance or other use indemnify and hold Charter harmless from any
of the Services. damages, loss, cost, liability, or expense, including
reasonable attorneys' fees, arising from a breach of
(c) Premium and Pay-Per-View. Customer may not these restrictions.
exhibit any premium Services such as HBO or
Showtime in any public or common viewing area. �• INTERNET ACCESS SERVICE. Continued use of the
Customer may not order or request Pay-Per-View Internet Service is subject to these Terms and Conditions.
(PPV) programming for receipt, exhibition or taping in (a) Equipment and Software Reguirements. Customer
a commercial establishment. Customer may not shall maintain certain minimum Equipment and
exhibit nor assist in the exhibition of PPV software to receive the Service. Please refer to
programming in a commercial establishment unless www.charter-business.com (or the applicable
explicitly authorized to do so by agreement with an successor URL)for the current specifications.
authorized program provider and subject to Charter's
prior written consent. If Customer fails to abide by (b) Internet Service Charter shall use
these restrictions, in addition to all other liability and commercially reasonable efforts to achieve the
not by way of limitation, Customer accepts liability for Internet speed selected by the Customer on the
any and all claims made against Customer or Charter Service Order. However, Customer understands and
of any unauthorized commercial exhibition and agrees that such speeds may vary.
Customer agrees to indemnify and hold Charter
harmless from any Ions, cost, liability, or expense, �c} Access and Use. Customer agrees to ensure that
including reasonable attorney's fees, arising from a any person who has access to the Internet Services
breach of this provision. through Customer's computers), Service Location,
facilities or account shall comply with the terms of this
(d) Provision of Service. Charter may, in its sole Agreement. Customer shall be responsible for all
discretion,from time to time, rearrange,delete, add or charges incurred and all conduct, whether authorized
otherwise change packaging and programming of or unauthorized, caused by use of Customer's
Services contained in Charter's basic cable, Digital computers, service locations, facilities or account
Music or other Services provided pursuant to this using the Internet Services.
Agreement. Customer acknowledges that Charter
has the right at any time to preempt without notice �d} Customer Security Responsibilities. Customer shall
specific advertised programming and to substitute be responsible for the implementation of reasonable
programming that Charter deems to be comparable. security procedures and standards. Charter may
temporarily discontinue or disconnect the Internet
fie} Restrictions. Customer shall not and shall not Services upon learning of a breach of security and will
authorize or permit any other person to (i) copy, attempt to contact Customer in advance, if possible.
record, dub, duplicate, alter, make or manufacture The temporary discontinuation or disconnection of the
any recordings or other reproductions of the Services Internet Services shall not constitute a breach of this
(or any part thereof); {ii}transmit the Services (or any Agreement
part thereof)by any television or radio broadcast or by
any other means or use the Services (or any part (e} Electronic Addresses. All e-mail addresses, e-mail
thereof) outside the Service Location. Customer account names, and IP addresses ("Electronic
acknowledges that such duplication, reproduction or Addresses")provided by Charter are and shall remain
transmission may subject Customer to criminal the property of Charter. Customer may not alter,
penalties and/or civil liability and damages under modify, sell, lease, assign, encumber or otherwise
applicable copyright and/or trademark laws. tamper with the Electronic Addresses.
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i
• �f} No Liability for Changes of Address. Due to growth, shall only apply if Charter's managed security service
acquisitions and changes in technology, Charter ("Charter Business Security") is included in this
reserves the right to change addressing schemes, Service Agreement or any related Service Order.
including e-mail and IP addresses. Charter Business Security is made up of software and
(g) No Liability hardware components. Charter shall ensure that far Risks of Internet Use. The Internet is Charter Business Security is operational and updated
a shared network and Charter does not warrant that from time to time based on manufacturer-sent
Service will be error free. The Service, Charter's updates. Except to the limited extent described in the
network and the Internet are not secure, and others foregoing sentence, Charter makes no warranties_ of
may access or monitor the Customer's traffic. Charter any kind express or implied} regarding Charter
does not warrant that data or flex sent or received by Business Security and hereby disclaims any and all
the Customer over the Network will not be subject to warranties pertaining thereto including but not limited
unauthorized access by others, that other users will to implied warranties of title, non-infringement,
not gain access to the Customer's data, nor that the merchantability, or fitness for a particular purpose).
data or files will be free from computer viruses or Customer understands and acknowledges that
other harmful components. Charter has no Charter is not the manufacturer of any software or
responsibility and assumes no liability for such acts or hardware components of Charter Business Security
occurrences. nor is Charter the supplier of any components of such
(h) No Liability for Purchases. Through use of the software or hardware. IN ADDITION TO BUT
Service, the Customer may access certain WITHOUT ABROGATING THE TERMS SET FORTH
information,products and services of others,for which IN SECTION 11, CHARTER SHALL IN NO EVENT
there is a charge. The Customer shall be solely liable BE LIABLE FOR ANY DAMAGES ARISING FROM
and responsible for all fees or charges for these THE PERFORMANCE OR NON-PERFORMANCE
online services, products or information. Charter shall OF CHARTER BUSINESS SECURITY (INCLUDING
have no responsibility to resolve disputes with other BUT NOT LIMITED TO THAT ATTRIBUTABLE TO
vendors. BLOCKED CONTENT OR EMAIL). REGARDLESS
OF CAUSE OR FAULT, CHARTER'S MAXIMUM
(i) Blockin and Filtering. While the computer industry LIABILITY TO CUSTOMER WITH REGARD TO
may provide blocking and filtering software that CUSTOMER'S PURCHASE OR USE OF CHARTER
empowers Customer to monitor and restrict access to BUSINESS SECURITY, SHALL IN NO EVENT
Customer's computer and its data, Charter is not the EXCEED THE AMOUNT PAID BY CUSTOMER TO
publisher of this software. Charter strongly CHARTER FOR CHARTER BUSINESS SECURITY.
recommends that the Customer employ a "firewall"or (I) Supplemental CB Back-Up Service. This CB Back-
other security software. The Customer assumes all Up service subsection shall apply only if Charter's
responsibility for providing and configuring any u n
data storage service ("CB Back-Up") is requested by
"firewall" or security measures for use with the
the Customer. In addition to One Time Charges and
Service. Except to the extent set forth in the Monthly Service Fees, monthly storage overage fees
Supplemental Charter Business Security Service shall apply each month Customer exceeds the
Section, Charter shall not be responsible in any respective subscribed storage level. Additional One
manner for the effectiveness of these blocking and Time Charges and Monthly Service Fees also apply
filtering technologies. Charter does not warrant that to Customer-requested media and/or professional
other users will be unable to gain access to services.
Customer's computer(s) and/or data even if the
Customer utilizes blocking and filtering technologies. CB Back-Up is made up of software components.
U}
Acceptable Use Policy. Customer understands and acknowledges that Customer agrees to comply Charter is not the manufacturer or supplier of any CB
with the terms of Charter's Acceptable Use Policy Back-Up software components. Customer shall be
�"AUP"}, found at www.char#er-business.com for the responsible for updating CB Back-Up from time to
applicable successor URL) and that policy is time based on updates provided by the software
incorporated by reference into this Agreement, manufacturer, and any failure of Customer to perform
Customer represents and warrants that Customer has such updates shall relieve Charter from any
read the AUP and agrees to be bound by its terms as responsibility to ensure that CB Back-Up remains
they may from time to time be amended, revised, operational. Except to the limited extent described in
replaced, supplemented or otherwise changed. the foregoing sentences, Charter makes no
Customer expressly understands and agrees that the warranties of any kind express or implied} regarding
AUP may be updated or modified from time to time by CB Back-Up and disclaims any and all warranties
Charter, with or without notice to Customer. Charter pertaining to CB Back-Up including but not limited to
may discontinue or disconnect Services immediately implied warranties of title, non-infringement,
for any violation of the Charter AUP with or without merchantability, or fitness for a particular purpose).
notice to Customer. IN ADDITION TO, BUT WITHOUT ABROGATING OR
(k) Supplemental Charter Business Security Service. LIMITING THE TERMS SET FORTH IN THE
This Charter Business Security Service subsection LIMITATION OF LIABILITY SECTION OF THIS
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R
. AGREEMENT, CHARTER SHALL IN NO EVENT BE LOCATION FOR FURTHER REPRODUCTION OR
LIABLE FOR ANY DAMAGES ARISING FROM THE REDISTRIBUTION IS EXPRESSLY PROHIBITED,
PERFORMANCE OR NON-PERFORMANCE OF CB UNLESS SUCH REPRODUCTION OR
BACK-UP REGARDLESS OF CAUSE OR FAULT. REDISTRIBUTION IS EXPRESSLY PERMITTED IN
CHARTER'S MAXIMUM LIABILITY TO CUSTOMER WRITING BY CHARTER.
WITH REGARD TO CUSTOMER'S PURCHASE OR iii. WITHOUT LIMITING OR ABROGATING THE
USE OF CB BACK-UP SHALL IN NO EVENT TERMS SET FORTH IN SECTION 7, CHARTER
EXCEED THE AMOUNT PAID BY CUSTOMER TO HEREBY DISCLAIMS ALL WARRANTIES AND
CHARTER FOR CB BACK-UP SERVICE. CONDITIONS WITH REGARD TO THE HOSTING
In the event the functionality of the CB Back-Up SOFTWARE, INCLUDING ALL WARRANTIES AND
service cannot be maintained by Charter or the CONDITIONS OF MERCHANTABILITY, WHETHER
manufacturer, Charter shall have the right to EXPRESS, IMPLIED OR STATUTORY, FITNESS
discontinue providing the service immediately and FOR A PARTICULAR PURPOSE, TITLE AND NON-
Charter shall credit Customer's account for any pre- INFRINGEMENT.
paid Monthly Service Fees attributable to the service,
except where such lack of functionality is caused by iv. Domain Names. Customer shall be solely
the Customer or any end user gaining access to the responsible for registering for or renewing a desired
service through the Customer's facilities, equipment, domain name, Charter disclaims such responsibility,
or point of access. Customer shall not be relieved of and Customer acknowledges that Charter does not
its responsibility to continue to pay for CB Back-Up in guarantee that Customer will be able to register or
the event CB Back-Up does not function properly as a renew a desired domain name, even if an inquiry
result of Customer's failure to install and configure the indicates that domain name is available at the time of
software, activate the service or install manufacturer- such inquiry.
provided updates. CUSTOMER UNDERSTANDS v. Specification Limitations. Individual websi#es may not
AND ACKNOWLEDGES (1) THAT IT IS at any time exceed the Hosting Specifications
CUSTOMER'S SOLE RESPONSIBILITY TO identified on the applicable Service Order. If a
CREATE AND RETAIN THE CB BACK-UP Customer's Hosting account is found exceed the
PASSWORD THAT IS NECESSARY FOR ACCESS Specifications set forth in the applicable Service
TO ANY DATA STORED VIA THE CB BACK-UP Order, or is adversely impacting Charter's network or
SERVICE AND (2) THAT CHARTER HAS NO server(s), Charter may (i) contact the Customer to
ACCESS TO AND DOES NOT KNOW NOR KEEP resolve the issues; or if Customer has exceeded the
ANY RECORD OF THE PASSWORD CREATED BY then-applicable Specifications in any given month, (ii)
CUSTOMER. FAILURE BY CUSTOMER TO upgrade the Customer's account on the next available
RETAIN CUSTOMER'S CB BACK-UP PASSWORD billing cycle to the next service level tier or (iii)
SHALL RESULT IN COMPLETE LOSS OF suspend of terminate the Hosting Service.
ACCESSABILITY TO DATA STORED VIA THE CB
BACK-UP SERVICE. Notwithstanding anything to the contrary, in the event
Customer's use of the Hosting Service is causing an
gym} Supplemental CB Hosting Service. This Hosting adverse impact on Charter's network or servers,
Service subsection shall only apply if one of Charter's Charter may (i) suspend or terminate the Hosting
Hosting Services ("Hosting") is included in this Service or(ii)terminate the Agreement in its entirety.
Service Agreement or any related Service Order.
Charter will provide to Customer Hosting Service in vi. Limitation of Charter-Provided Services. Customer
accordance with the Specifications associated with understands and agrees that certain services are not
the plan Customer has selected on the Service Order. provided by Charter as part of the Hosting Service
e.g.,, Charter dues not provide nor offer web page
i. Third Party Software via Hosting Service.The Hosting creation,development,design or content services).
Service will permit access to a variety of resources
available from selected third parties, including vii. No Additional Warranties. Charter makes no
developer tools, communication forums and product warranties of any kind (express or implied) regarding
information (collectively," Hosting Software"). The Hosting and hereby disclaims any and all warranties
Hosting Software, including any updates, pertaining thereto (including but not limited to implied
enhancements, new features, and/or the addition of warranties of title, non-infringement, merchantability,
any new Web properties, may subject to end user or fitness for a particular purpose). IN ADDITION TO,
license agreements between such third parties and BUT WITHOUT ABROGATING AND LIMITING THE
Customer. Version changes of any such software TERMS SET FORTH IN THE LIMITATION OF
compatibility and/or suitability with any other LIABILITY SECTION OF THIS AGREEMENT,
Customer provided software shall be Customer's CHARTER SHALL IN NO EVENT BE LIABLE FOR
responsibility. ANY DAMAGES ARISING FROM THE
PERFORMANCE OR NON-PERFORMANCE OF
ii. WITHOUT LIMITING THE FOREGOING, COPYING CHARTER HOSTING REGARDLESS OF CAUSE OR
OR REPRODUCTION OF THE HOSTING FAULT. CHARTER'S MAXIMUM LIABILITY TO
SOFTWARE TO ANY OTHER SERVER OR CUSTOMER WITH REGARD TO CUSTOMER'S
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• - PURCHASE OR USE OF THE HOSTING SERVICE g. Inclusion of sites with material, links, or resources for
SHALL IN NO EVENT EXCEED THE AMOUNT PAID hacking, phreaking, viruses, or any type of site that
BY CUSTOMER TO CHARTER FOR HOSTING promotes or participates in willful harm to Internet
SERVICE. sites or providers.
viii. Hosting Fees.The applicable Service Order sets forth x. Impositions on Customer's End Users. Customer is
the Monthly Service Fees for the Hosting Service. responsible for charging and collecting from
Customer is responsible for payment whether or not Customer's end-user customers any and all
the hosting platform is used. Customer shall not be applicable taxes. If Customer fails to impose and/or
relieved of its responsibility to continue to pay for collect any tax from its end users or customers as
Hosting in the event Hosting does not function required herein, then, as between Charter and
properly as a result of(i) Customer's failure to install Customer, Customer shall remain liable for such
or properly use any software; or(ii)Customer's failure uncollected tax and any interest and penalty
to utilize in any way or less than the maximum assessed thereon with respect to the uncollected tax
Specifications the Hosting Service. by the applicable taxing authority.With respect to any
ix. Content Liability and Use Restrictions. Customer tax that Customer has agreed to pay or impose on
acknowledges Charter exercises no control and/or collect from Customers end users or
whatsoever over the content of the information customers, Customer agrees to indemnify and hold
passing through Customer's site(s) and that it is harmless Charter for any costs incurred as a result of
Customer's sole responsibility to ensure that actions taken by the applicable taxing authority to
Customer and Customer's users use of the Hosting collect such tax from Charter due to Customer's
Service complies at all times with all applicable laws failure to pay or collect and remit such tax to such
and regulations and Charter's AUP. authority.
Upon activation of Customer's account, Charter shall 7. NO THIRD-PARTY HARDWARE OR SOFTWARE
have the right to disclose any, or all available SUPPORT. Customer is responsible for the installation,
information collected from Customer to law repair and use of Customer-supplied third-party hardware
enforcement authorities upon written request by such and/or software. For purposes of this Agreement the
authorities. Information that may be disclosed Hosting Software shall be considered third party software.
includes, but is not limited to 1P addresses, account Charter does not support third-party hardware or software
history,and files stored on Charter servers. supplied by Customer. Any questions concerning third-
party hardware or software should be directed to the
In addition to the foregoing, Customer expressly provider of that product. Charter assumes no liability or
understands and agrees that the following activities responsibility for the installation, maintenance,
are prohibited. In the event that Customer engages in compatibility or performance of third party software, any
such activities, Charter shall have the right to suspend Customer-supplied hardware or software with the
or terminate the Hosing Services and/or this Services. If such third-party equipment or software
Agreement: impairs the Services, Customer shall remain liable for
payments as agreed (if any)without recourse for credit or
prorated refund for the period of impairment. Charter has
a. The hosting of unlicensed software that is available to no responsibility to resolve the difficulties caused by such
the public; third-party equipment or software. If, at Customer's
request, Charter should attempt to resolve difficulties b. Use of software or flex that contain computer viruses caused by such third-party equipment or software, such
or files that may harm user's computers; efforts shall be performed at Charter's discretion and at
C. Any attempt or actual unauthorized access then-current commercial rates and terms.
by Customer or through Customer's equipment to any 8. CUSTOMER USE. Customer agrees not to re-sell or re-
Charter websi#e or the websi#e of any Charter distribute access to the Service(s) or system capacity, or
customer; any part thereof, in any manner without the express prior
d. The collection or any attempt to collect written consent of Charter. Customer agrees not to use or
personally identifiable information of any person or permit third parties to use the Services), including but not
entity without their express written consent. Customer limited to the Equipment and software provided by
shall maintain records of any such written consent Charter, for any illegal purpose, or to achieve
throughout the Term (and any Renewal Term) of this unauthorized access to any computer systems, software,
agreement and for three years thereafter; data, or other copyright or patent protected material.
Customer agrees not to interfere with other customers'
e. Any action which is harmful or potentially harmful to use of the Equipment or Services or disrupt the Charter
the Charter server structure; Network, backbone, nodes or other Services. Violation of
f. Running a banner exchange,free adult tgp(thumbnail any part of this section is grounds for immediate
gallery post)and/or free adult image galleries on your Termination of this Service Agreement and/or all Service
website; Orders in addition to any other rights or remedies Charter
may have hereunder.
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• 9. PERFORMANCE. Charter will use commercially ii Terminate the Services;or
r reasonable efforts in keeping with normal industry iii After the occurrence of two (2) such events of
standards to ensure that the Service is available to Customer default in any twelve(12)month period
Customer twenty-four (24) hours per day, seven (7) days of time, terminate this Service Agreement and/or
per week. It is possible, however, that there will be any or all of the applicable Service Orders).
interruptions of Service. Specifically, Customer
understands and agrees that the Service may be If Termination is due to noncompliance by the
unavailable from time to time either for scheduled or Customer, Customer must pay Charter a Termination
unscheduled maintenance, technical difficulties, or for charge (a ""Termination Charge"), which the parties
other reasons beyond Charter's reasonable control. recognize as liquidated damages. This Termination
Temporary service interruptionsloutages for such reasons, Charge shall be equal to fifty percent (50%) of the
as well as service interruptions/outages caused by the unpaid balance of the Monthly Service Fees that
Customer, its agents and employees, or by a Force would have been due throughout the remainder of the
Majeure Event, shall not constitute a failure by Charter to applicable Service Period plus one hundred percent
perform its obligations under this Service Agreement, and (100%) of (1) the outstanding balance of any and all
Customer will not hold Charter at fault for loss of Customer One-Time Charges plus (2) any and all previously
revenue or lost employee productivity due to Service waived One-Time Charges.
outages.
(c) Default by Charter. Charter shall be in default under
10. DEFAULT; SUSPENSION OF SERVICE; this Service Agreement in the event that Charter does
TERMINATION. No express or implied waiver by Charter one (1) or more of the following teach instance
of any event of default shall in any way be a waiver of any individually to be considered a separate event of
further subsequent event of default. Nothing herein, default), and Charter fails to remedy each such
including, but not limited to Termination, shall relieve noncompliance or occurrence within thirty(30)days of
Customer of its obligation to pay Charter all amounts due. receipt of written notice from Customer describing in
(a) Default b Cus#omer. Customer shall be in default reasonable detail the nature, scope and extent of the
under this Service Agreement in the event that the default or noncompliance:
Customer does one(1)or more of the following (each i Charter fails to comply with the terms of this
individually to be considered a separate event of Service Agreement and/or any or all of the
default) and the Customer fails to correct each such applicable Service Orders);
noncompliance within twenty (20) days of receipt of ii Charter files or initiates proceedings or has
written notice in cases involving non-payment or g
proceedings filed
within thirty (30) days of receipt of written notice in led or initiated against i#, seeking
cases involving any other noncompliance: liquidation, reorganization or other relief such as
appointment of a trustee, receiver, liquidator,
i Customer is more than thirty (30) days past due custodian or such other official) under any
with respect to any payment required hereunder; bankruptcy, insolvency or other similar law and
ii Customer otherwise has failed to comply with the such proceedings are not dismissed within sixty
X60}days.
terms of this Service Agreement or any other
Service Order(s) incorporated herein by (d) Customer's_ Right to Term_inate and Termination
execution thereof by the parties;or
iii Customer files or initiates proceedings or has i Customer shall have the right,at its option and in
proceedings filed or initiated against it, seeking addition to any other remedies it may have, to
liquidation, reorganization or other relief(such as terminate any applicable Service Order(s), if the
appointment of a trustee, receiver, liquidator, underlying event of default and/or noncompliance
custodian or such other official) under any by Charter is limited to Services provided under
bankruptcy, insolvency or other similar law and the applicable Service Order(s) or this Service
such proceedings are not dismissed within sixty Agreement, if such noncompliance is not so
(60)days. limited, provided that Charter's diligent efforts to
(b) Charter's Ri ht to Terminate and Termination Char e. correct such breach are not commenced and
In the event Customer is in default, Charter shall have pursued within thirty (30) days after Charter's
the right, at its option, and in addition to any other receipt of a written notice from the Customer
describing in reasonable detail the nature, scope
remedies it may have,#o: and extent of the event of default/noncompliance.
i Immediately suspend Services to the Customer ii If Termination is due to noncompliance by
until such time as the underlying noncompliance Charter, Charter shall reimburse Customer for
has been corrected without affecting Customer's any pre-paid, unused Monthly Service Fees
on-going obligation to pay Charter any amounts attributable to such terminated Service Orders).
due under this Agreement (e.g., the Monthly In addition, if Termination is due to
Service Fees), as if such suspension of Services noncompliance by Charter within one (1) year of
had not taken place;
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• the applicable Turn-Up Date, Charter shall pay a IMPLEMENTATION DELAYS AND/OR FAILURES),
Termination Charge, which the parties recognize UNDER ANY THEORY OF TORT, CONTRACT,
as liquidated damages, equal to a portion of any WARRANTY, STRICT LIABILITY OR NEGLIGENCE,
One-Time Charge that has already been paid by EVEN IF THE PARTY HAS BEEN ADVISED, KNEW
the Customer to Charter relative to Service at the OR SHOULD HAVE KNOWN OF THE POSSIBILITY
sites covered by the terminated Service Order. OF SUCH DAMAGES.
This Termination Charge Charter must pay THE FOREGOING LIMITATIONS APPLIES TO ALL
Customer shall be equal to the product of a) the CAUSES OF ACTIONS AND CLAIMS, INCLUDING
number of months (or portion thereof) remaining WITHOUT LIMITATION, BREACH OF CONTRACT,
in the initial twelve (12) months of the initial BREACH OF WARRANTY, NEGLIGENCE, STRICT
Service Period at the time of Termination and b) LIABILITY, MISREPRESENTATION AND OTHER
a ratio in which the numerator is the total of One-
Time Charges paid to date and the denominator TORTS.
is twelve(12). Any warranty claim by Customer must be made within
iii Notwithstanding any provision herein to the thirty (30) days after the applicable Services have
contrary, Customer, at its option, may terminate been performed. Charter's sole obligation and
this Agreement without early termination charges Customer's sole remedy, with respect to any breach
by providing written notice to Charter not more of the limited warranty set forth herein, shall be a
than thirty (30) days following receipt from prorated refund of the fees paid by Customer based
Charter of notice of any increase in the Monthly on the period of time when the Services are out of
Service Fees attributable to Video Services compliance with this limited warranty provision.
exceeding ten percent (10°/x) of the Monthly (b) Content. Customer acknowledges that any content
Service Fees attributable to the Video Service in that Customer may access or transmit through any
the immediately preceding month. Customer's Service is provided by independent content providers,
failure to provide Charter notice of Termination over which Charter does not exercise and disclaims
within such thirty(30)days period shall constitute any control. Charter neither previews content nor
an acceptance of such increase in the Monthly exercises editorial control; does not endorse any
Service Fees exceeding ten percent(10%). opinions or information accessed through any
11. LIMITATION OF LIABILITY. PLEASE READ THIS Service; and assumes no responsibility for content.
SECTION CAREFULLY, IT CONTAINS DISCLAIMERS Charter specifically disclaims any responsibility for the
OF WARRANTIES AND LIMITATIONS OF LIABILITY. accuracy or quality of the information obtained using
the Service. Such content or programs may include,
(a) Limited Warranty. At all times during the Service without limitation, programs or content of an
Period, Charter warrants that it will use commercially infringing, abusive, profane or sexually offensive
reasonable efforts in keeping with industry standards nature. Customer and their authorized users
to cause the Services to be available to the Customer. accessing other parties' content through Customer's
THE FOREGOING LIMITED WARRANTY IS facilities do so at Customer's own risk, and Charter
EXCLUSIVE AND IN LIEU OF ALL EXPRESS AND assumes no liability whatsoever for any claims,
losses,actions, damages,suits or proceedings arising
IMPLIED WARRANTIES WHATSOEVER. out of or otherwise relating to such content.
EXCEPT AS OTHERWISE STATED IN THIS (c) Damage, Loss or Destruction of Software Files and/or
SERVICE AGREEMENT, CHARTER MAKES NO Data. Customer agrees that Customer uses the
WARRANTIES, EXPRESS OR IMPLIED,AS TO ANY Services and Equipment supplied by Charter at its
SERVICE PROVISIONED HEREUNDER AND sole risk. Charter does not manufacture the
SPECIFICALLY DISCLAIMS ANY AND ALL IMPLIED Equipment, and the Services and Equipment are
WARRANTIES, INCLUDING WITHOUT LIMITATION provided on an "as is basis"without warranties of any
ANY IMPLIED WARRANTIES OF kind.
MERCHANTABILITY, FITNESS FOR A
PARTICULAR PURPOSE, OR TITLE OR NOW Charter assumes no responsibility whatsoever for any
INFRINGEMENT OF THIRD PARTY RIGHTS. damage to or loss or destruction of any of Customer's
hardware, software, files, data or peripherals which
WITHOUT LIMITING ANY EXPRESS PROVISIONS may result from Customer's use of any Service.
PROVIDED FOR ELSEWHERE IN THIS Charter does not warrant that data or files sent by or
AGREEMENT, NEITHER PARTY SHALL BE LIABLE to Customer will be transmitted in uncorrupted form or
TO THE OTHER FOR ANY INDIRECT,
CONSEQUENTIAL, EXEMPLARY, SPECIAL, within a reasonable period of time.
INCIDENTAL OR PUNITIVE DAMAGES (d) Unauthorized Access. If Customer chooses to run or
(INCLUDING WITHOUT LIMITATION, LOST offer access to applications from its equipment that
BUSINESS, REVENUE, PROFITS, OR GOODWILL) permits others to gain access through the Network,
ARISING IN CONNECTION WITH THIS Customer must take appropriate security measures.
AGREEMENT OR THE PROVISION OF SERVICES Failing to do so may cause immediate Termination of
HEREUNDER (INCLUDING ANY SERVICE Customer's Service by Charter without liability for
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w Charter. Charter is not responsible for and assumes 14. COMPLIANCE WITH LAWS. Customer shall not use or
no liability for any damages resulting from the use of permit third parties to use the Services in any manner that
such applications, and Customer shall hold Charter violates applicable law or causes Charter to violate
harmless from and indemnify Charter against any applicable law. Both parties shall comply with all
claims, losses, or damages arising from such use. applicable laws and regulations when carrying out their
Charter is not responsible and assumes no liability for respective duties hereunder.
losses, claims, damages, expenses, liability, or cysts 1
resulting from others accessing the Customer's 5. PRIVACY. Charter treats private communications on or
computers, its internal network and/or the Network through its Network or using any Service as confidential
through Customer's equipment, and Customer shall and does not access, use or disclose the contents of
hold Charter harmless from and indemnify Charter private communications, except in limited circumstances
against any such claims, losses, or damages to the and as permitted by law. Charter also maintains a Privacy
full extent arising from such access. Policy with respect to the Services in order to protect the
privacy of its customers. The Privacy Policy can be found
(e) Force Ma'eure Event. Customer agrees that Charter on Charter's website at www.Charter-Business.com.
shall not be liable for any inconvenience, loss, liability Customer represents and warrants that Customer has
or damage resulting from any failure or interruption of read the Privacy Policy and agrees to be bound by its
Services, directly or indirectly caused by terms. Customer expressly understands and agrees that
circumstances beyond Charter's control, including but the Privacy Policy may be updated or modified from time
not limited to denial of use of poles or other facilities to time by Charter,with or without notice to Customer.
of a utility company, labor disputes, acts of war or
terrorism, criminal, illegal or unlawful acts, natural 16. GENERAL CUSTOMER REPRESENTATIONS AND
causes, mechanical or power failures, or any order, OBLIGATIONS. Customer represents to Charter that
law or ordinance in any way restricting the operation Customer has the authority to execute, deliver and carry
of the Services. out the terms of this Service Agreement and associated
12. INDEMNIFICATION. In addition to its specific Service Orders. Customer also represents that any person who accesses any Services through Customer's
indemnification responsibilities set forth elsewhere in this equipment or through the Network facilities in Customer's
Service Agreement and as permissible under applicable Premises will be an authorized user, will use the Service,
law, Customer agrees, at its own expense, to indemnify, Network and/or Network facilities in an appropriate and
defend and hold harmless Charter and its directors, legal manner, and will be subject to the terms of this
employees, representatives, officers and agents, (the Service Agreement. Customer shall be responsible for
"Indemnified Parties")against any and all claims, liabilities, ensuring that all such users understand the Service
lawsuits, damages, losses, judgments, costs, fees and Agreement and comply with its terms.
expenses incurred by Charter Indemnified Parties,
including but not limited to, reasonable attorneys'fees and The Customer shall be responsible for all access to and
court costs incurred by Charter Indemnified Parties under use of the Service by means of the Customer's equipment,
this Service Agreement, to the full extent that such arise whether or not the Customer has knowledge of or
from Customer's misrepresentation with regard to or authorizes such access or use. The Customer shall be
noncompliance with the terms of this Service Agreement solely liable and responsible for all charges incurred and
and any or all Service Orders, Customer's failure to all conduct through either authorized or unauthorized use
comply with applicable law, and/or Customer's negligence of the Service, until the Customer informs Charter of any
or willful misconduct. Charter Indemnified Parties shall breach of security.
have the right but not the obligation to participate in the Charter expressly prohibits using the Service for the
defense of the claim at Customer's cost and Customer posting or transferring of sexually explicit images, material
agrees to cooperate with Charter Indemnified Parties in inappropriate for minors, or other offensive materials. By
such case. signing, Customer expressly acknowledges that Customer
13. TITLE. Title to the Equipment shall remain with Charter will not post or transfer or permit others to post or transfer
during the applicable Service Period. Customer shall keep such materials using the Service..
that portion of the Equipment located on Customer 17. NOTICES. Any notices to be given under this Service
Premises free and clear of all liens, encumbrances and Agreement shall be validly given or served only if in writing
security interests. Upon Termination of Service or and sent by nationally recognized overnight delivery
expiration of a Service Order's Service Period for a service or certified mail, return receipt requested, to the
specific site, Charter shall have the right to remove all following addresses:
Equipment components and/or leave any of such
components in place, assigning title and interest in such If to Charter:
components to the Customer, it being understood that no Charter Communications
further notice or action is required to accomplish the ATTN: Charter Business
assignment contemplated hereunder. Charter shall have 15100 Trinity Blvd.Ste 566
the right to remove the Equipment and all components Fort Worth,TX 76155
within sixty(60)days after such Termination. with copies to:
Charter Communications
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ATTN: Legal Department not to be considered in the construction or
Dept:Corporate Operations interpretation of this Service Agreement.
12405 Powerscourt Drive
S#. Louis,MO. 63131 (f) Governing Law. This Service Agreement and all
matters arising out of or related to this Agreement
and shall be governed by the laws of the State of Missouri,
Charter Communications without regard to conflicts of law provisions.
ATTN: CB Corporate--Contracts Management Customer agrees that the federal and state courts of
12405 Powerscourt Drive Missouri alone have jurisdiction over all disputes
St. Louis,MO. 63131 arising under this Agreement,and Customer consents
If to Customer: to personal jurisdiction of those courts with respect to
City of FTW-Master any disputes arising under this Agreement. IN ANY
AND ALL CONTROVERSIES OR CLAIMS ARISING
ATTN: OUT OF OR RELATING TO THIS AGREEMENT, ITS
NEGOTIATION, ENFORCEABILITY OR VALIDITY,
401 W 2ND ST OR THE PERFORMANCE OR BREACH THEREOF
OR THE RELATIONSHIPS ESTABLISHED
FT WORTH,TX HEREUNDER, CUSTOMER AND CHARTER EACH
76102-7302 HEREBY WAIVES ITS RIGHT, IF ANY,TO TRIAL BY
JURY.
Each party may change its respective address(es) for
legal notice by providing notice#o the other party. (9) Jointly Drafted. Both parties hereby acknowledge that
they participated equally in the negotiation and
18. MISCELLANEOUS. drafting of this Service Agreement and any related,
executed Service Order(s) and that, accordingly, no
(a) Entire Agreement. This Service Agreement and any rcourt construing this Service Agreement and any
related, executed Service Order(s) constitute the related, executed Service Order(s) shall construe it
entire Agreement with respect to the Services,
Network and Equipment. This Service Agreement more stringently against one party than against the
other.
supersedes all prior understandings, promises and
undertakings, if any, made orally or in writing by or on (h) No Third Party Beneficiaries. The parties agree that
behalf of the parties with respect to the subject matter the terms of this Service Agreement and the parties'
of this Service Agreement. respective performance of obligations as described
(b) No Amendments, Su Iemen#s or Chan es. This
are not intended to benefit any person or entity not a
party to this Service Agreement, that the
Service Agreement and the associated executed consideration provided by each party under this
Service Order(s)may not be amended, supplemented Service Agreement only runs#o the respective parties
or changed without both parties'prior written consent. hereto, and that no person or entity not a party to this
(c) No Assignment or Transfer. The parties may not Service Agreement shall have any rights under this
assign or transfer(directly or indirectly by any means, Service Agreement nor the right to require the
by operation of law or otherwise) this Service performance of obligations by either of the parties
Agreement and the associated Service Orders), or under this Service Agreement.
their rights or obligations hereunder to any other entity (i) Waiver. Except as otherwise provided herein, the
without first obtaining written consent from the other failure of Charter to enforce any provision of this
party, which consent shall not be unreasonably Agreement shall not constitute or be construed as a
withheld, provided, however, that Charter may assign waiver of such provision or of the right to enforce such
this Service Agreement and the associated executed provision.
Service Order(s) to affiliates controlling, controlled by
or under common control with Charter, or to its
successor-in-interest in the event Charter sells the
underlying communications system, without
Customer's consent.
(d) Severabilit . If any term, covenant, condition or
portion of this Service Agreement, any related,
executed Service Order(s) shall, to any extent, be
invalid or unenforceable,the remainder of this Service
Agreement, any related, executed Service Order(s),
shall not be affected and each remaining term,
covenant or condition shall be valid and enforceable
to the fullest extent permitted by law.
{e} Section Headings. The section headings are
furnished for the convenience of the parties and are
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M&C Review Page 1 of 2
Official site of the City of F4€t Worth,Texas
CITYFORT WORT I!
COUNCIL AGENDA
•-h-S:+a \ \�\ --: --_--'\\�,G\-:-- \' -'> `CL`\`o�.�`GC`��\;.w,xocwcow.C"3?�`�\`�\�� '� k;.. �. ��ih `�'��.
COUNCIL ACTION: Approved on 7/28/2009
DATE: 7/28/2009 REFERENCE C-23080 LOG NAME: 02CABLE TELEVISION
NO.: CONTRACT
CODE: C TYPE: NON- PUBLIC NO
CONSENT HEARING:
SUBJECT: Ratify a Business Video and Music Service Agreement with Marcus Cable Associates,
L.L.C., dlbla Charter Communications, for City Cable Service in an Approximate Annual
Amount of$77,058.00
t ,. �
RECOMMENDATION:
It is recommended that the City Council ratify a five year service agreement with Marcus cable
Associates, L.L.C., dlbla Charter Communications, a sole source provider, to provide expanded basic
cable television services to City Hall and selected outlying municipal buildings.
DISCUSSION:
Marcus Cable Associates, L.L.C., dlbla Charter Communications, (Charter) held a Citywide cable
television franchise with the City from 1999 to 2008. The City's municipal cable franchise agreement
stipulated that Charter Communications provide expanded basic cable television service to City Hall
and selected municipal buildings at a bulk rate. Under state law, cable companies are now regulated
by the State of Texas and the City must now pay for cable service at market rates.
In 2008, Charter requested an updated service agreement with the City of Fort Worth for expanded
basic cable service in selected municipal buildings. Charter is the only Citywide cable provider and
would be considered a sole source provider. Under the agreement Charter provides cable service for
the following per outlet bulk rates:
2008 - $9.95
2009 - $10.75
2010 - $11.50
2011 - $12.00
2012 - $12.00
Charter will also charge a $75.00 per truck roll installation charge.
The City currently has 802 cable television outlets in 81 public facilities and offices such as City Hall,
Public Safety and Municipal Court, Fire Stations, Police Headquarters, Neighborhood Police Districts
and storefronts, Libraries, Community Centers, Public Events facilities and the Cable
Communications office. City staff uses these services to stay current on severe weather conditions,
national and local news and events which may affect the citizens for Fort Worth. The annual cost for
2009 will be approximately $77,058.00.
FISCAL INFORMATIONXERTIFICATION:
The Financial Management Services Director certifies that funds are available in the current operating
budget, as appropriated, of the participating funds.
TO Fund/Account/Centers FROM Fund/Account/Centers
GG01 159970 0000000 $77,058.00 GG01 159970 0000000 $77,058.00
http:llapps.cfwnet.org/council_packet/mc_review.asp?I D=12006&counciIdate=712812009 11/3/2011
M&C Review Page 2 of 2
Submitted for City Manager's Offic Carl Smart(6525)
Originating Department Head: Carl Smart(6525)
Additional Information Contact: Randy Westerman (871-6119)
ATTACHMENTS
City._of F.TW -_Master__-_ -_0.2.1.1.2008 -_SA..pdf
http-//apps.cfwnet.org/council_ acket/mc-revi ew.asp?I D=12 006&counci I date=7/2 8/2 009 11/3/2011