R-1124 - 09/13/2011 - AGREEMENT - ResolutionsRESOLUTION 2011- AG- FOC -EX1 -R -1124
A RESOLUTION APPROVING AND AUTHORIZING THE EXECUTION
OF AN AGREEMENT FOR INTERNET SERVICE TO THE BUTLER
GOVERNMENT CENTER BY AND BETWEEN THE VILLAGE OF OAK BROOK
AND COMCAST CABLE COMMUNICATIONS MANAGEMENT, LLC
WHEREAS, the Village and Comcast Cable Communications Management, LLC ( "Comcasf')
desire to execute an agreement for fiber optic internet service to the Village's Butler Government Center
( "Agreement "); and
WHEREAS, the President and Board of Trustees have determined that it is in the best interests of
the Village to enter into the Agreement in a final form approved by the Village Manager and the Village
Attorney;
NOW THEREFORE, BE IT RESOLVED BY THE PRESIDENT AND BOARD OF TRUSTEES OF
THE VILLAGE OF OAK BROOK, DU PAGE AND COOK COUNTIES, ILLINOIS as follows:
Section 1: Recitals. The foregoing recitals are hereby incorporated into, and made a part
of, this Resolution as the findings of the President and Board of Trustees of the Village of Oak Brook.
Section 2: Approval of the Agreement. The President and Board of Trustees hereby
approve the Agreement by and between the Village and Comcast in a form acceptable to the Village
Manager and the Village Attorney.
Section 3: Authorization and Execution of the Agreement. The Village President and Village
Clerk shall be, and hereby are, authorized to execute the final Agreement on behalf of the Village after
review and approval of the final form of the Agreement by the Village Manager and the Village Attorney.
Section 4: Effective Date. This Resolution shall be in full force and effect upon passage and
approval in the manner provided by law.
APPROVED THIS 131" day of September, 201
al G. Lalmalani
Village President
PASSED THIS 13`" day of September, 2011
Ayes: Trustees Manzo, Moy, Wolin, Yusuf and Zannis
Nays: None
Absent: Trustee Aktinis
Charlotte K. Pruss
Village Clerk
IL- 223937- I MSA Term 60 months I Account Name: Village of Oak Brook
Title: IT Manager Address 1: 1200 Oak Brook Rd.
Phone: 630 - 369 -5174
Cell: I City: Oak Brook
Email:
This Master Service Agreement ( "Agreement ") sets forth the terms and conditions under which Comcast Cable
Communications Management, LLC and its operating affiliates ( "Comcast ") will provide communications and other
services ( "Services") to the above Customer. The Agreement consists of this fully executed Master Service
Agreement Cover Page ("Cover Page "), the Enterprise Services General Terms and Conditions ( "General Terms and
Conditions" ), any written amendments to the Agreement executed by both parties ( "Amendments "), the Product -
Specific Attachment for the applicable Services ( "PSA(s) ") and each Sales Order accepted hereunder ("Sales
Orders "). In the event of any inconsistency among these documents, precedence will be as follows: (1) this Cover
Page (2) General Terms and Conditions, (3) PSA(s), , and (4) Sales Orders. This Agreement shall be legally binding
when signed by both parties and shall continue in effect until the expiration date of any Service Term specified in a
Sales Order referencing the Agreement, unless terminated earlier in accordance with the Agreement.
The Customer referenced above may submit Sales Orders to Comcast during the Term of this Agreement ("MSA
Term "), After the expiration of the initial MSA Term, Comcast may continue to accept Sales Orders from Customer
under the Agreement, or require the parties to execute a new MSA.
The Agreement shall terminate in accordance with the General Terms and Conditions. The General Terms and
Conditions and PSAs are located at http: // business. comcast.com /enterprise- terms -of- service. Use of the Services is
also subject to the High -Speed Internet for Business Acceptable Use Policy ( "AUP ") located at
httpJ/ business .comcmt.wm /pdfs/Enteiprise- Acceptable- Use- Policy.pdf, and the High -Speed Internet for Business
Privacy Policy (Privacy Policy") located at http : //business.comeast.00m/pdfs /Enterprise - Privacy- Policy.pdf.
Comcast may update the General Terms and Conditions, PSAs, AUP and Privacy Policy from time to time upon
posting to the Comcast website.
Services are only available to commercial customers in wired and serviceable areas in participating Comcast
systems (and may not be transferred). Minimum Service Terms are required for most Services and early termination
fees may apply. Service Terms are identified in each Sales Orders, and early termination fees are identified in the
applicable Product Specific Attachments.
BY SIGNING BELOW, CUSTOMER AGREES TO THE TERMS AND CONDITIONS OF THIS AGREEMENT.
Date:
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COMCAST ENTERPRISE SERVICES
GENERAL TERMS AND CONDITIONS
VERSION: 1.1
DEFINITIONS
Affiliate: Any entity that controls, is controlled by or is under
common control with Comcast.
Agreement, Enterprise Services Master Services
Agreement or MSA: Consists of the Enterprise Master
Services Agreement Cover Page executed by the Customer
and accepted by Comcast, these Enterprise Services General
Terms and Conditions ( "General Terns and Conditions "), the
then current Product- Specific Attachment for each ordered
Service ( "PSA "), any written amendments to the Agreement
executed by both Parties including any supplemental terms
and conditions ( "Amendment(s) "), and each Sales Order
accepted by Comcast under the Agreement.
Amendment(s): Any written amendment to the Agreement,
executed by both Parties, including any supplemental terms
and conditions.
Comcast: The operating company affiliate or subsidiary of
Comcast Cable Communications Management, LLC that
provides the Services under the Enterprise Services Master
Service Agreement. References to Comcast in the Limitation
of Liability, Disclaimer of Warranties and Indemnification
Articles shall also include its directors, officers, employees,
agents, Affiliates, suppliers, licensors, successors, and assigns,
as the case may be.
Comcast Website or Website: The Comcast website where
the General Terms and Conditions, PSAs and other Comcast
security and privacy policies applicable to the Agreement will
be posted. The current URL for the Website is
hqp://business.comcast.com/enterorise-terms-of-service
Comcast may update the Website documents and /or URL
from time to time.
Comcast Equipment: Any and all facilities, equipment or
devices provided by Comcast or its authorized contractors at
the Service Location(s) that are used to deliver any of the
Services including, but not limited to, all terminals, wires,
modems, lines, circuits, ports, routers, gateways, switches,
channel service units, data service units, cabinets, and racks.
Notwithstanding the above, inside telephone wiring within the
Service Location, whether or not installed by Comcast, shall
not be considered Comcast Equipment.
Confidential Information: All information regarding either
Party's business which has been marked or is otherwise
communicated as being "proprietary" or "confidential." or
which reasonably should be known by the receiving party to
be proprietary or confidential information. Without limiting
the generality of the foregoing, Confidential Information shall
include, even if not marked, the Agreement, all Licensed
Software, promotional materials, proposals, quotes, rate
information, discount information, subscriber information,
network upgrade information and schedules, network
operation information (including without limitation
information about outages and planned maintenance) and
invoices, as well as the Parties' communications regarding
such items.
Customer: The company, corporation, or other entity named
on the Enterprise Services Master Service Agreement Cover
Page and a Sales Order.
Customer- Provided Equipment (CE): Any and all facilities,
equipment or devices supplied by Customer for use in
connection with the Services.
Demarcation Point: The point of interconnection between the
Network and Customer's provided equipment located at a
Service Location. In some cases the Demarcation Point shall
be the User to Network Interface (UNI) port on Comcast
Equipment at a Service Location.
General Terms and Conditions: These Enterprise Services
General Terms and Conditions.
Licensed Software: Computer software or code provided by
Comcast or required to use the Services, including without
limitation, associated documentation, and all updates thereto.
Network: Consists of the Comcast Equipment, facilities,
fiber optic cable associated with electronics and other
equipment used to provide the Services.
Party: A reference to Comcast or the Customer, and in the
plural, a reference to both companies.
Product Specific Attachment(s) (PSA): The additional terms
and conditions applicable to Services ordered by Customer
under the Agreement.
Revenue Commitment: A commitment by Customer to
purchase a minimum volume of Service during an agreed
term, as set forth in a Sales Order.
Sales Order: A request for Comcast to provide the Services to
a Service Location(s) submitted by Customer to Comcast (a)
on a then-current Comcast form designated for that purpose or
(b) if available, through a Comcast electronic order processing
system designated for that purpose.
Service(s): A service provided by Comcast pursuant to a
Sales Order. All Services provided under the Agreement are
for commercial use only. Services available under this
Agreement are identified on the Website.
Service Commencement Date: The date(s) on which
Comcast first makes Service available for use by Customer. A
single Sales Order containing multiple Service Locations or
Services may have multiple Service Commencement Dates.
Service Location(s): The Customer location(s) where
Comcast provides the Services, to the extent the Customer
owns, leases, or otherwise controls such location(s).
Service Term: The duration of time (commencing on the
Service Commencement Date) for which Services are ordered,
as specified in a Sales Order.
Tariff. A federal or state Comcast tariff and the successor
documents of general applicability that replace such tariff in
the event of detariffing.
Termination Charges: Charges that may be imposed by
Comcast if, prior to the end of the applicable Service Term (a)
Comcast terminates Services for cause or (b) Customer
terminates Services without cause. Termination Charges are as
set forth in each PSA, and are in addition to any other rights
and remedies under the Agreement.
ARTICLE 1. CHANGES TO THE AGREEMENT
TERMS
Comcast may change or modify the Agreement, and any
related policies from time to time ( "Revisions ") by posting
such Revisions to the Comcast Website. The Revisions are
effective upon posting to the Website. Customer will receive
notice of the Revisions in the next applicable monthly invoice.
Customer shall have thirty (30) calendar days from the posting
of such Revisions to provide Comcast with written notice that
the Revisions adversely affect Customer's use of the
Service(s). If after notice Comcast is able to verify such
adverse affect but is unable to reasonably mitigate the
Revision's impact on such Services, then Customer may
terminate the impacted Service(s) without further obligation to
Comcast beyond the termination date, including early
termination charges, if any. This shall be Customer's sole and
exclusive remedy.
ARTICLE 2. DELIVERY OF SERVICE
2.1 Orders. Customer shall submit to Comcast a
properly completed Sales Order to initiate Service to a Service
Location(s). A Sales Order shall become binding on the
Parties when (i) it is specifically accepted by Comcast either
electronically or in writing, (ii) Comcast begins providing the
Service described in the Sales Order or (iii) Comcast begins
Custom Installation (as defined in Article 2.7) for delivery of
the Services described in the Sales Order, whichever is earlier.
When a Sales Order becomes effective it shall be deemed part
of, and shall be subject to, the Agreement.
2.2 Access. In order to deliver certain Services to
Customer, Comcast may require access, right -of -way, conduit,
and/or common room space ( "Access "), both within and /or
outside each Service Location. Customer shall provide an
adequate environmentally controlled space and such electricity
as may be required for installation, operation, and
maintenance of the Comcast Equipment used to provide the
Services within the Service Location(s). Customer shall be
responsible for securing, and maintaining on an initial and
ongoing basis during the applicable Service Term and/or
Renewal Term, such Access within each Service Location
unless Comcast has secured such access prior to this
Agreement. In the event that Customer, fails to secure or
maintain such Access within a particular Service Location,
Comcast may cancel or terminate Service at such particular
Service Location, without further liability, upon written
notice to Customer. In such event, if Comcast has incurred
any costs or expense in installing or preparing to install the
Service that it otherwise would not have incurred, a charge
equal to those costs and expenses shall apply to Customer's
final invoice for that particular Service Location. if Comcast is
unable to secure or maintain Access outside a particular
Service Location, which Access is needed to provide Services
to such Service Location, Customer or Comcast may cancel or
terminate Service at such particular Service Location, without
further liability beyond the termination date, upon a minimum
thirty (30) days' prior written notice to the other party. In such
event, if Comcast has incurred any costs or expense in
installing or preparing to install the Service that it otherwise
would not have incurred, Comcast shall be responsible for
such costs or expenses. Any other failure on the part of
Customer to be ready to receive Service, or any refusal on the
part of Customer to receive Service, shall not relieve
Customer of its obligation to pay charges for any Service that
is otherwise available for use.
2.3 Hazardous Materials. If the presence of asbestos or
other hazardous materials exists or is detected at a Service
Location or within the building where the Service Location is
located, Comcast may immediately stop providing Services
until such a time as such materials are removed. Alternatively
Customer may notify Comcast to install the applicable portion
of the Service in areas of any such Service Location not
containing such hazardous material. Any additional expense
incurred by Comcast as a result of encountering hazardous
materials, including but not limited to, any additional
equipment shall be home by Customer. Customer shall use
reasonable efforts to maintain its property and Service
Locations in a manner that preserves the integrity of the
Services.
2.4 Comcast Equipment. At any time Comcast may
remove or change Comcast Equipment in its sole discretion in
connection with providing the Services. Customer shall not
move, rearrange, disconnect, remove, attempt to repair, or
otherwise tamper with any Comcast Equipment or permit
others to do so, and shall not use the Comcast Equipment for
any purpose other than that authorized by the Agreement.
Comcast shall maintain Comcast Equipment in good operating
condition during the term of this Agreement; provided,
however, that such maintenance shall be at Comcast's expense
only to the extent that it is related to and /or resulting from the
ordinary and proper use of the Comcast Equipment.
Customer is responsible for damage to, or loss of, Comcast
Equipment caused by its acts or omissions, and its
noncompliance with this Article, or by fire, theft or other
casualty at the Service Location(s), unless caused by the gross
negligence or willful misconduct of Comcast.
Enterprise Services General Terms and Conditions ven 1.1
2.5 Ownership, Impairment and Removal of Network,
The Network is and shall remain the property of Comcast
regardless of whether installed within or upon the Service
Location(s) and whether installed overhead, above, or
underground and shalt not be considered a fixture or an
addition to the land or the Service Location(s) located thereon.
Customer agrees that it shall take no action that directly or
indirectly impairs Comcast's title to the Network, or any
portion thereof, or exposes Comcast to any claim, lien,
encumbrance, or legal process, except as otherwise agreed in
writing by the Parties. Nothing in this Agreement shall
preclude Comcast from using the Network for services
provided to other Comcast customers. For a period of twelve
(12) months following Comcast's discontinuance of Service to
the Service Location(s), Comcast retains the right to remove
the Network including, but not limited to, that portion of the
Network that is located in the Service Location. To the extent
Comcast removes such portion of the Network it shall be
responsible for returning the Service Location(s) to its prior
condition, reasonable wear and tear excepted.
2.6 Customer Provided Equipment ("CE"). Comcast
shall have no obligation to install, operate, or maintain CE.
Customer shall have sole responsibility for providing
maintenance, repair, operation and replacement of all CE,
inside telephone wiring and other Customer equipment and
facilities on the Customer's side of the Demarcation Point.
Neither Comcast nor its employees, Affiliates, agents or
contractors will be liable for any damage, loss, or destruction
to CE, unless caused by the gross negligence or willful
misconduct of Comcast. CE shall at all times be compatible
with the Network as determined by Comcast in its sole
discretion. In addition to any other service charges that may be
imposed.from time to time, Customer shall be responsible for
the payment of service charges for visits by Comcast's
employees or agents to a Service Location when the service
difficulty or trouble report results from the use of CE or
facilities provided by any party other than Comcast.
2.7 Engineering Review. Each Sales Order submitted
by Customer may be subject to an engineering review. The
engineering review will determine whether and to what extent
the Network must be extended, built or upgraded ( "Custom
Installation ") in order to provide the ordered Services at the
requested Service Location(s). Comcast will provide
Customer written notification in the event Service installation
at any Service Location will require an additional non-
recurring installation fee ( "Custom Installation Fee "). Custom
Installation Fees may also be referred to as Construction
Charges on a Service Order or Invoice. Customer will have
five (5) days from receipt of such notice to reject the Custom
Installation Fee and terminate, without further liability, the
Sales Order with respect to the affected Service Location(s).
For certain Services, the Engineering Review will be
conducted prior to Sales Order submission. In such case,
Customer will have accepted the designated Custom
Installation Fee upon submission of the applicable Sales
Order.
2.8 Service Acceptance. Except as may otherwise be
identified in the applicable PSA, the Service Commencement
Date shall be the date Comcast completes installation and
connection of the necessary facilities and equipment to
provide the Service at a Service Location.
2.9 Administrative Website. Comcast may furnish
Customer with one or more user identifications and/or
passwords for use on the Administrative Website. Customer
shall be responsible for the confidentiality and use of such
user identifications and /or passwords and shall immediately
notify Comcast if there has been an unauthorized release, use
or other compromise of any user identification or password.
In addition, Customer agrees that its authorized users shall
keep confidential and not distribute any information or other
materials made available by the Administrative Website.
Customer shall be solely responsible for all use of the
Administrative Website, and Comcast shall be entitled to rely
on all Customer uses of and submissions to the Administrative
Website as authorized by Customer. Comcast shall not be
liable for any loss, cost, expense or other liability arising out
of any Customer use of the Administrative Website or any
information on the Administrative Website. Comcast may
change or discontinue the Administrative Website, or
Customer's right to use the Administrative Website, at any
time. Additional terms and policies may apply to Customer's
use of the Administrative Website. These terns and policies
will be posted on the site.
ARTICLE 3. BILLING AND PAYMENT
3.1 Charges. Except as otherwise provided in the
applicable PSA, Customer shall pay Comcast one hundred
percent (100 %) of the Custom Installation Fee prior to the
installation of Service. Customer further agrees to pay all
charges associated with the Services, as set forth or referenced
in the applicable PSA, Sales Order(s) or invoice from
Comcast. These charges may include, but are not limited to
standard and custom non - recurring installation charges,
monthly recurring service charges, usage charges including
without limitation charges for the use of Comcast Equipment,
per -call charges, pay - per -view charges, charges for service
calls, maintenance and repair charges, and applicable federal,
state, and local taxes, fees, surcharges and recoupments
(however designated). Some Services such as measured and
per -call charges, pay - per -view movies or events, and
interactive television (as explained in the applicable PSA) may
be invoiced after the Service has been provided to Customer.
Except as otherwise indicated herein or in the applicable
PSA(s) monthly recurring charges for Ethernet, Video and
Internet Services that are identified on a Sales Order shall not
increase during the Service Term. Except as otherwise
indicated herein or in the Sales Order(s), Voice Service
pricing, charges and fees can be found in the applicable PSA.
3.2 Third -Party Charges. Customer may incur charges
from third party service providers that are separate and apart
from, or based on the amounts charged by Comcast. These
may include, without limitation, charges resulting from
Enterprise Services General Terms and Conditions Ver. L 1
wireless services including roaming charges, accessing on -line
services, calls to parties who charge for their telephone based
services, purchasing or subscribing to other offerings via the
Internet or interactive options on certain Video services, or
otherwise. Customer agrees that all such charges, including
all applicable taxes, are Customer's sole responsibility. In
addition, Customer is solely responsible for protecting the
security of credit card information provided to others in
connection with such transactions.
3.3 Payment of Bills. Except as otherwise indicated
herein or in a PSA, Comcast will invoice Customer in advance
on a monthly basis for all monthly recurring charges and fees
arising under the Agreement. All other charges will be billed
monthly in arrears, including without limitation certain usage
based charges and third party pass through fees. Payment is
due upon presentation of an invoice. Payment will be
considered timely made to Comcast if received within thirty
(30) days after the invoice date. Any charges not paid to
Comcast within such period will be considered past due. If a
Service Commencement Date is not the first day of a billing
period, Customer's first monthly invoice shall include any
pro -rated charges for the Services, from the date of installation
to the start of the next billing period. In certain cases, Comcast
may agree to provide billing services on behalf of third parties,
as the agent of the third party. Any such third -party charges
shall be payable pursuant to any contract or other arrangement
between the third party and Customer and/or Comcast.
Comcast shall not be responsible for any dispute regarding
these charges. between Customer and such third party.
Customer must address all such disputes directly with the third
party.
3.4 Partial Payment. Partial payment of any bill will be
applied to the Customer's outstanding charges in amounts and
proportions solely determined by Comcast. No acceptance of
partial payment(s) by Comcast shall constitute a waiver of any
rights to collect the full balance owed under the Agreement.
3.5 Credit Approval and Deposits. Initial and ongoing
delivery of Services may be subject to credit approval.
Customer shall provide Comcast with credit information
requested by Comcast. Customer authorizes Comcast to make
inquiries and to receive information about Customer's credit
history from others and to enter this information in Customer's
records. Customer represents and warrants that all credit
information that it provides to Comcast will be true and
correct. Comcast, in its sole discretion, may deny the Services
based upon an unsatisfactory credit history. Additionally,
subject to applicable regulations, Comcast may require
Customer to make a deposit (in an amount not to exceed an
estimated two months charge for the Services) as a condition
to Comcast's provision of the Services, or as a condition to
Comcast's continuation of the Services. The deposit will not,
unless explicitly required by law, bear interest and shall be
held by Comcast as security for payment of Customer's
charges. Comcast may apply the deposit to any delinquent
Customer charges upon written notice to Customer. If
Comcast uses any or all of the deposit to pay an account
delinquency, Customer will replenish the deposit by that
amount within five (5) days of its receipt of written notice
from Comcast. If the provision of Service to Customer is
terminated, or if Comcast determines in its sole discretion that
such deposit is no longer necessary, then the amount of the
deposit (plus any required deposit interest) will be credited to
Customer's account or will be refunded to Customer, as
determined by Comcast.
3.6 Taxes and Fees. Except to the extent Customer
provides a valid tax exemption certificate prior to the delivery
of Service, Customer shall be responsible for the payment of
any and all applicable local, state, and federal taxes or fees
(however designated). Customer also will be responsible to
pay any Service fees, payment obligations and taxes that
become applicable retroactively.
3.7 Other Government- Related Costs and Fees.
Comcast reserves the right to invoice Customer for any fees or
payment obligations in connection with the Services imposed
by governmental or quasi - governmental bodies in connection
with the sale, installation, use, or provision of the Services,
including, without limitation, applicable franchise fees, right
of way fees and universal service fund charges (if any),
regardless of whether Comcast or its Affiliates pay the fees
directly or are required by an order, rule, or regulation of a
taxing jurisdiction to collect them from Customer. Taxes and
other government - related fees and surcharges may be changed
with or without notice, In the event that any newly adopted
law, rule, regulation or judgment increases Comcast's costs of
providing Services, Customer shall pay Comcast's additional
costs of providing Services under the new law, rule, regulation
orjudgment.
3.8 Disputed Invoice. If Customer disputes any portion
of an invoice by the due date, Customer must pay fifty percent
(50 %) of the disputed charges, in addition to the undisputed
portion of the invoice and submit a written claim, including all
documentation substantiating Customer's claim, to Comcast
for the disputed amount of the invoice by the invoice due date.
The Parties shall negotiate in good faith to resolve any billing
dispute. Comcast will refund/credit all valid disputes resolved
in Customer's favor as of the date the disputed charges first
appeared on the Customer's invoice.
3.9 Past -Due Amounts. Any payment not made when
due will be subject to a late charge of 1.5% per month or the
highest rate allowed by law on the unpaid invoice, whichever
is lower. If Customer's account is delinquent, Comcast may
refer the account to a collection agency or attorney that may
pursue collection of the past due amount and /or any Comcast
Equipment that Customer fails to return in accordance with the
Agreement. If Comcast is required to use a collection agency
or attorney to collect any amount owed by Customer or any
unreturned Comcast Equipment, Customer agrees to pay all
reasonable costs of collection or other action. The remedies
set forth herein are in addition to and not in limitation of any
other rights and remedies available to Comcast under the
Agreement or at law or in equity.
Enterprise Services General Terms and Conditions Ver.I.I
3.10 Rejected Payments. Except to the extent otherwise
prohibited by law, Customer will be assessed a service charge
up to the full amount permitted under applicable law for any
check or other instrument used to pay for the Services that has
been rejected by the bank or other financial institution.
3.11 Fraudulent Use of Services. Customer is responsible
for all charges attributable to Customer with respect to the
Service(s), even if incurred as the result of fraudulent or
unauthorized use of the Service. Comcast may, but is not
obligated to, detect or report unauthorized or fraudulent use of
Services to Customer. Comcast reserves the right to restrict,
suspend or discontinue providing any Service in the event of
fraudulent use of Customer's Sery ice.
ARTICLE 4. TERM; REVENUE COMMITMENT
4.1 Agreement Term. Upon execution of the
Agreement, Customer shall be allowed to submit Sales Orders
to Comcast during the term referenced on the Master Service
Agreement Cover Page ( "MSA Term "). After the expiration of
the initial MSA Term, Comcast may continue to accept Sales
Orders from Customer under the Agreement, or require the
Parties to execute a new agreement. This Agreement shall
continue in effect until the expiration or termination date of
the last Sales Order entered under the Agreement, unless
terminated earlier in accordance with the Agreement.
4.2 Sales Order Term/Revenue Commitment. The
applicable Service Term and Revenue Commitment (if any)
shall be set forth in the Sales Order. Unless otherwise stated
in these terms and conditions or the applicable PSA, if a Sales
Order does not specify a term of service, the Service Term
shall be one (1) year from the Service Commencement Date.
In the event Customer fails to satisfy a Revenue Commitment,
Customer will be billed a shortfall charge pursuant to the
terms of the applicable PSA.
4.3 Sales Order Renewal. Upon the expiration of the
Service Term, and unless otherwise agreed to by the Parties in
the Sales Order, each Sales Order shall automatically renew
for successive periods of one (1) year each (`Renewal
Term(s)"), unless otherwise stated in these terms and
conditions or prior notice of non - renewal is delivered by either
Party to the other at least thirty (30) days before the expiration
of the Service Term or the then current Renewal Term.
Effective at any time after the end of the Service Term and
from time to time thereafter, Comcast may, modify the
charges for Ethernet, Internet and/or Video Services subject to
thirty (30) days prior written notice to Customer. Customer
will have thirty (30) days from receipt of such notice to cancel
the applicable Service without further liability. Should
Customer fail to cancel within this timeframe, Customer will
be deemed to have accepted the modified Service pricing.
ARTICLE 5. TERMINATION WITHOUT FAULT;
DEFAULT
5.1 Termination for Convenience. Notwithstanding any
other term or provision in this Agreement, Customer shall
have the right, in its sole discretion, to terminate any or all
Sales Order(s) at any time during the Service Term(s), upon
thirty (30) days prior written notice to Comcast and subject to
payment to Comcast of all outstanding amounts due for the
Services, any and all applicable Termination Charges, and the
return of all applicable Comcast Equipment. Comcast may
terminate the Agreement if Customer does not take any
Service under a Sales Order for twelve (12) consecutive
months or longer.
5.2 Termination for Cause. If either Party breaches any
material term of the Agreement, other than a payment term,
and the breach continues un- remedied for thirty (30) days
after written notice of default, the other Party may terminate
for cause any Sales Order materially affected by the breach. If
Customer is in breach of a payment obligation (including
failure to pay a required deposit) and fails to make payment in
full within ten (10) days after receipt of written notice of
default, Comcast may, at its option, terminate the Agreement,
terminate the affected Sales Orders, suspend Service under the
affected Sales Orders, and /or require a deposit, advance
payment, or other satisfactory assurances in connection with
any or all Sales Orders as a condition of continuing to provide
Service; except that Comcast will not take any such action as
a result of Customer's non - payment of a charge subject to a
timely billing dispute, unless Comcast has reviewed the
dispute and determined in good faith that the charge is correct.
A Sales Order may be terminated by either Party immediately
upon written notice if the other Party has become insolvent or
involved in liquidation or termination of its business, or
adjudicated bankrupt, or been involved in an assignment for
the benefit of its creditors. Termination by either Party of a
Sales Order does not waive any other rights or remedies that it
may have under this Agreement. The non - defaulting Party
shall be entitled to all available legal and equitable remedies
for such breach.
5.3 Effect of Exniration/Termination of a Sales Order
Upon the expiration or termination of a Sales Order for any
reason:
A. Comcast shall disconnect the applicable Service;
B. Comcast may delete all applicable data, files,
electronic messages, or other information stored on Comcast's
servers or systems;
C. If Customer has terminated the Sales Order prior to
the expiration of the Service Term for convenience, or if
Comcast has terminated the Sales Order prior to the expiration
of the Service Term as a result of material breach by
Customer, Comcast may assess and collect from Customer
applicable Termination Charges (if any);
D. Customer shall, permit Comcast to retrieve from the
applicable Service Location any and all Comcast Equipment.
Enterprise Services General Terms and Conditions Ver.1.1
If Customer fails to permit such retrieval or if the retrieved
Comcast Equipment has been damaged and /or destroyed other
than by Comcast or its agents, normal wear and tear excepted,
Comcast may invoice Customer for the manufacturer's list
price of the relevant Comcast Equipment, or in the event of
minor damage to the retrieved Comcast Equipment, the cost of
repair, which amounts shall be immediately due and payable;
and
E. Customer's right to use applicable Licensed Software
shall automatically terminate, and Customer shall be obligated
to return all Licensed Software to Comcast.
5.4 Resumption of Service. If a Service has been
discontinued by Comcast for cause and Customer requests that
the Service be restored, Comcast shall have the sole and
absolute discretion to restore such Service. At Comcast's
option, deposits, advanced payments, nonrecurring charges,
and/or an extended Service Term may apply to restoration of
Service.
5.5 Regulatory and Legal Changes. The Parties
acknowledge that the respective rights and obligations of each
Party as set forth in this Agreement upon its execution are
based on applicable law and regulations as they exist on the
date of execution of this Agreement. The Parties agree that in
the event of any subsequent decision by a legislative, regulatory
or judicial body, including any regulatory or judicial order,
mle, regulation, decision in any arbitration or other dispute
resolution or other legal or regulatory action that materially
affects the provisions or ability to provide Services on
economic terms of the Agreement, Comcast may, by providing
written notice to the Customer, require that the affected
provisions of the Agreement be renegotiated in good faith. If
Customer refuses to enter such renegotiations, or the Parties
can't reach resolution on new Agreement terms, Comcast
may, in its sole discretion, terminate this Agreement, in whole
or in part, upon sixty (60) days written notice to Customer.
ARTICLE 6. LIMITATION OF LIABILITY;
DISCLAIMER OF WARRANTIES; WARNINGS
6.1 Limitation of Liability.
A, THE AGGREGATE LIABILITY OF COMCAST
FOR ANY AND ALL LOSSES, DAMAGES AND
CAUSES ARISING OUT OF THE AGREEMENT,
INCLUDING, BUT NOT LIMITED TO, THE
PERFORMANCE OF SERVICE, AND NOT
OTHERWISE LIMITED HEREUNDER, WHETHER IN
CONTRACT, TORT, OR OTHERWISE, SHALL NOT
EXCEED DIRECT DAMAGES EQUAL TO THE SUM
TOTAL OF PAYMENTS MADE BY CUSTOMER TO
COMCAST DURING THE THREE (3) MONTHS
IMMEDIATELY PRECEDING THE EVENT FOR
WHICH DAMAGES ARE CLAIMED. THIS
LIMITATION SHALL NOT APPLY TO COMCAST'S
INDEMNIFICATION OBLIGATIONS AND CLAIMS
FOR DAMAGE TO PROPERTY AND /OR PERSONAL
INJURIES (INCLUDING DEATH) ARISING OUT OF
THE GROSS NEGLIGENCE OR WILLFUL
MISCONDUCT OF COMCAST WHILE ON THE
CUSTOMER SERVICE LOCATION.
B. NEITHER PARTY SHALL BE LIABLE TO
THE OTHER FOR ANY INCIDENTAL, INDIRECT,
SPECIAL, COVER, PUNITIVE OR CONSEQUENTIAL
DAMAGES, WHETHER OR NOT FORESEEABLE, OF
ANY KIND INCLUDING BUT NOT LIMITED TO ANY
LOSS REVENUE, LOSS OF USE, LOSS OF BUSINESS,
OR LOSS OF PROFIT WHETHER SUCH ALLEGED
LIABILITY ARISES IN CONTRACT OR TORT
HOWEVER, THAT NOTHING HEREIN IS INTENDED
TO LIMIT CUSTOMER'S LIABILITY FOR AMOUNTS
OWED FOR THE SERVICES, FOR ANY EQUIPMENT
OR SOFTWARE PROVIDED BY COMCAST OR FOR
EARLY TERMINATION CHARGES.
6.2 Disclaimer of Warranties.
A. Services shall be provided pursuant to the terms and
conditions in the applicable PSA and Service Level
Agreement, and are in lieu of all other warranties, express,
implied or statutory, including, but not limited to, the implied
warranties of merchantability, fitness for a particular purpose,
title, and non- infringement. To the maximum extent allowed
by law, Comcast expressly disclaims all such express, implied
and statutory warranties.
R Without limiting the generality of the foregoing, and
except as otherwise identified in a PSA or Service Level
Agreement, Comcast does not warrant that the Services,
Comcast Equipment, or Licensed Software will be
uninterrupted, error -free, or free of latency or delay, or that the
Services, Comcast Equipment, or Licensed Software will meet
customer's requirements, or that the Services, Comcast
Equipment, or Licensed Software will prevent unauthorized
access by third parties.
C. - In no event shall Comcast, be liable for any loss,
damage or claim arising out of or related to: (i) stored,
transmitted, or recorded data, files, or software; (ii) any act or
omission of Customer, its users or third parties; (iii)
interoperability, interaction or interconnection of the Services
with applications, equipment, services or networks provided
by Customer or third parties; or (iv) loss or destruction of any
Customer hardware, software, files or data resulting from any
virus or other harmful feature or from any attempt to remove
it. Customer is advised to back up all data, files and software
prior to the installation of Service and at regular intervals
thereafter.
6.3 Disruption of Service. Notwithstanding the
performance standards identified in a PSA, the Services are
not fail -safe and are not designed or intended for use in
situations requiring fait -safe performance or in which an error
or interruption in the Services could lead to severe injury to
business, persons, property or environment ( "High Risk
Activities "). These High Risk Activities may include, without
Enterprise Services General Terns and Conditions Ver.1.1
limitation, vital business or personal communications, or
activities where absolutely accurate data or information is
required.
6.4 Customer's sole and exclusive remedies are expressly set
forth in the Agreement. Certain of the above exclusions may
not apply if the state in which a Service is provided does not
allow the exclusion or limitation of implied warranties or does
not allow the limitation or exclusion of incidental or
consequential damages. In those states, the liability of
Comcast is limited to the maximum extent permitted by law.
ARTICLE 7. INDEMNIFICATION
7.1 Comcast's Indemnification Obbeations. Comcast
shall indemnify defend, and hold harmless Customer and its
parent company, affiliates, employees, directors, officers, and
agents from and against all claims, demands, actions, causes of
actions, damages, liabilities, losses, and expenses (including
reasonable attorneys' fees) ( "Claims") incurred as a result of
infringement of U.S. patent or copyright relating to the Comcast
Equipment or Comcast Licensed Software hereunder; damage to
tangible personal property or real property, and personal injuries
(including death) arising out of the gross negligence or willful
misconduct of Comcast while working on the Customer Service
Location.
7.2 Customer's Indemnification Obligations.
Customer shall indemnify, defend, and hold harmless Comcast
from any and all Claims arising on account of or in connection
with Customer's use or sharing of the Service provided under
the Agreement, including with respect to: libel, slander,
infringement of copyright, or unauthorized use of trademark,
trade name, or service mark arising out of communications via
the Service; for patent infringement arising from Customer's
combining or connection of CE to use the Service; for damage
arising out of the gross negligence or willful misconduct of
Customer with respect to users of the Service.
7.3 Indemnification Procedures. The Indemnifying
Party agrees to defend the Indemnified Party for any loss,
injury, liability, claim or demand ( "Actions ") that is the
subject of this Article 7. The Indemnified Party agrees to
notify the Indemnifying Party promptly, in writing, of any
Actions, threatened or actual, and to cooperate in every
reasonable way to facilitate the defense or settlement of such
Actions. The Indemnifying Party shall assume the defense of
any Action with counsel reasonably satisfactory to the
Indemnified Party. The Indemnified Party may employ its
own counsel in any such case, and shall pay such counsel's
fees and expenses. The Indemnifying Party shall have the
right to settle any claim for which indemnification is available;
provided, however, that to the extent that such settlement
requires the Indemnified Party to take or refrain from taking
any action or purports to obligate the Indemnified Party, then
the Indemnifying Party shall not settle such claim without the
prior written consent of the Indemnified Party, which consent
shall not be unreasonably withheld, conditioned or delayed.
ARTICLE 8. SOFTWARE & SERVICES
8.1 License. If and to the extent that Customer requires
the use of Licensed Software in order to use the Service
supplied under any Sales Order, Customer shall have a
personal, nonexclusive, nontransferable, and limited license to
use such Licensed Software in object code only and solely to
the extent necessary to use the applicable Service during the
corresponding Service Term. All Licensed Software provided
to Customer, and each revised version thereof, is licensed (not
sold) to Customer by Comcast only for use in conjunction
with the Service. Customer may not claim title to, or an
ownership interest in, any Licensed Software (or any
derivations or improvements thereto), and Customer shall
execute any documentation reasonably required by Comcast,
including, without limitation, end -user license agreements for
the Licensed Software. Comcast and its suppliers shall retain
ownership of the Licensed Software, and no rights are granted
to Customer other than a license to use the Licensed Software
under the terms expressly set forth in this Agreement.
8.2 Restrictions. Customer agrees that it shall not: (i)
copy the Licensed Software (or any upgrades thereto or related
written materials) except for emergency back -up purposes or
as permitted by the express written consent of Comcast; (ii)
reverse engineer, decompile, or disassemble the Licensed
Software; (iii) sell, lease, license, or sublicense the Licensed
Software; or (iv) create, write, or develop any derivative
software or any other software program based on the Licensed
Software.
8.3 Updates. Customer acknowledges that the use of
Service may periodically require updates and/or changes to
certain Licensed Software resident in the Comcast Equipment
or CE. If Comcast has agreed to provide updates and changes,
such updates and changes may be performed remotely or on-
site by Comcast, at Comcast's sole option. Customer hereby
consents to, and shall provide free access for, such updates
deemed reasonably necessary by Comcast. If Customer fails to
agree to such updates, Comcast will be excused from the
applicable Service Level Agreement and other performance
credits, and any and all liability and indemnification
obligations regarding the applicable Service.
8.4 Export Law and Regulation. Customer
acknowledges that any products, software, and technical
information (including, but not limited to, services and
training) provided pursuant to the Agreement may be subject
to U.S. export laws and regulations. Customer agrees that it
will not use distribute, transfer, or transmit the products,
software, or technical information (even if incorporated into
other products) except in compliance with U.S. export
regulations. If requested by Comcast, Customer also agrees to
sign written assurances and other export- related documents as
may be required for Comcast to comply with U.S. export
regulations.
8.5 Ownership of Telephone Numbers and Addresses.
Customer acknowledges that use of certain Services does not
give it any ownership or other rights in any telephone number
or Intemeb'on -line addresses provided, including but not
Enterprise Services General Terms and Conditions ver. 1.1
limited to Internet Protocol ("IP ") addresses, e-mail addresses
and web addresses.
8.6 Intellectual Property Rights in the Services. Title
and intellectual property rights to the Services are owned by
Comcast, its agents, suppliers or affiliates or their licensors or
otherwise by the owners of such material. The copying,
redistribution, bundling or publication of the Services, in
whole or in part, without express prior written consent from
Comcast or other owner of such material, is prohibited.
ARTICLE 9. CONFIDENTIAL INFORMATION AND
PRIVACY
9.1 Disclosure and Use. All Confidential Information
disclosed by either Party shall be kept by the receiving party in
strict confidence and shall not be disclosed to any third party
without the disclosing party's express written consent.
Notwithstanding the foregoing, such information may be
disclosed (i) to the receiving party's employees, affiliates, and
agents who have a need to know for the purpose of performing
this Agreement, using the Services, rendering the Services,
and marketing related products and services (provided that in
all cases the receiving party shall take appropriate measures
prior to disclosure to its employees, affiliates, and agents to
assure against unauthorized use or disclosure); or (ii) as
otherwise authorized by this Agreement. Each Party agrees to
treat all Confidential Information of the other in the same
manner as it treats its own proprietary information, but in no
case using a degree of care less than a reasonable degree of
care.
9.2 Exceptions. Notwithstanding the foregoing, each
Party's confidentiality obligations hereunder shall not apply to
information that: (i) is already known to the receiving party
without a pre- existing restriction as to disclosure; (ii) is or
becomes publicly available without fault of the receiving
party; (iii) is rightfully obtained by the receiving party from a
third party without restriction as to disclosure, or is approved
for release by written authorization of the disclosing party; (iv)
is developed independently by the receiving party without use
of the disclosing party's Confidential Information; or (v) is
required to be disclosed by law or regulation.
9.3 Publicity. The Agreement provides no right to use
any Party's or its affiliates' trademarks, service marks, or trade
names, or to otherwise refer to the other Party in any
marketing, promotional, or advertising materials or activities.
Neither Party shall issue any publication or press release
relating to, or otherwise disclose the existence of, the terms
and conditions of any contractual relationship between
Comcast and Customer, except as permitted by the Agreement
or otherwise consented to in writing by the other Party.
Notwithstanding the foregoing, Comcast may include
Customer's name on Comcast's customer lists together with a
description of Services purchased (financial terms not to be
disclosed). If Customer wishes to remove Customer's name
from such list or to limit the foregoing use of Customer's
name, Customer may contact Comcast as set forth in Article
11.3 of these General Terms and Conditions and Comcast will
effect such removal.
9.4 Passwords. Comcast may furnish Customer with
user identifications and passwords for use in conjunction with
certain Services, including, without limitation, for access to
certain non - public Comcast website materials. Customer
understands and agrees that such information shall be subject
to Comcast's access policies and procedures located on
Comcast's Web Site.
9.5 Remedies. Notwithstanding any other Article of this
Agreement, the non - breaching Party shall be entitled to seek
equitable relief to protect its interests pursuant to this Article
9, including, but not limited to, injunctive relief.
9.6 Monitoring of Services. Except as otherwise
expressly set forth in a PSA, Comcast assumes no obligation
to pre- screen or monitor Customer's use of the Service,
including without limitation postings and /or transmission.
However, Customer acknowledges and agrees that Comcast
and its agents shall have the right to pre- screen and monitor
such use from time to time and to use and disclose such results
to the extent necessary to operate the Service properly, to
ensure compliance with applicable use policies, to protect the
rights and /or property of Comcast, or in emergencies when
physical safety is at issue, and that Comcast may disclose the
same to the extent necessary to satisfy any law, regulation, or
governmental request. Comcast shall have no liability or
responsibility for content received or distributed by Customer
or its users through the Service, and Customer shall
indemnify, defend, and hold Comcast and its directors,
officers, employees, agents, subsidiaries, affiliates, successors,
and assigns harmless from any and all claims, damages, and
expenses whatsoever (including reasonable attorneys' fees)
arising from such content attributable to Customer or its users.
9.7 Survival of Confidentiality Obligations. The
obligations of confidentiality and limitation of use described
in this Article 9 shall survive the expiration and termination of
the Agreement for a period of two (2) years (or such longer
period as may be required by law).
ARTICLE 10. USE OF SERVICE; USE AND PRIVACY
POLICIES
10.1 Prohibited Uses and Comcast Use Policies.
Customer is prohibited from using, or permitting the use of,
any Service (i) for any purpose in violation of any law, rule,
regulation, or policy of any government authority; (ii) in
violation of any Use Policy (as defined below); (iii) for any
use as to which Customer has not obtained all required
government approvals, authorizations, licenses, consents, and
permits; or (iv) to interfere unreasonably with the use of
Comcast service by others or the operation of the Network.
Customer is responsible for assuring that any and all of its
users comply with the provisions of the Agreement. Comcast
reserves the right to act immediately and without notice to
terminate or suspend the Services and/or to remove from the
Services any information transmitted by or to Customer or
users, if Comcast determines that such use is prohibited as
identified herein, or information does not conform with the
Enterprise Services General Terms and Conditions vcr.l.l
requirements set or Comcast reasonably believes that such use
or information may violate any laws, regulations, or written
and electronic instructions for use. Furthermore, to the extent
applicable, Services shall be subject to Comcast's acceptable
use policies ( "Use Policies ") that may limit use. The Use
Policies and other security policies concerning the Services
are posted on the Website, and are incorporated into this
Agreement by reference. Comcast may update the Use
Policies from time to time, and such updates shall be deemed
effective immediately upon posting, with or without actual
notice to Customer. Comcast's action or inaction in enforcing
acceptable use shall not constitute review or approval of
Customer's or any other users' use or information.
10.2 Privacy Policy. In addition to the provisions of
Article 9, Comcast's commercial privacy policy applies to
Comcast's handling of Customer confidential information.
Comcast's privacy policy is available on the Website.
10.3 Privacy Note Reeardine Information Provided to
Third Parties. Comcast is not responsible for any information
provided by Customer to third parties. Such information is not
subject to the privacy provisions of this Agreement. Customer
assumes all privacy and other risks associated with providing
personally identifiable information to third parties via the
Services.
10.4 Prohibition on Resale. Customer may not sell,
resell, sublease, assign, license, sublicense, share, provide, or
otherwise utilize in conjunction with a third party (including,
without limitation, in any joint venture or as part of any
outsourcing activity) the Services or any component thereof.
10.5 Violation. Any breach of this Article 10 shall be
deemed a material breach of this Agreement. In the event of
such material breach, Comcast shall have the right to restrict,
suspend, or terminate immediately any or all Sales Orders,
without liability on the part of Comcast, and then to notify
Customer of the action that Comcast has taken and the reason
for such action, in addition to any and all other rights and
remedies under this Agreement.
ARTICLE 11. MISCELLANEOUS TERMS
11.1 Force Maieure. Neither Party (and in the case of
Comcast, Comcast affiliates and subsidiaries) shall be liable to
the other Party for any delay, failure in performance, loss, or
damage to the extent caused by force majeure conditions such
as acts of God, fire, explosion, power blackout, cable cut, acts
of regulatory or governmental agencies, unavailability of
right -of -way, unavailability of right -of -way or materials, or
other causes beyond the Party's reasonable control, except that
Customer's obligation to pay for Services provided under the
Agreement shall not be excused. Changes in economic,
business or competitive condition shall not be considered
force majeure events.
11.2 Assignment or Transfer. Customer shall not assign
any right, obligation or duty, in whole or in part, nor of any
other interest hereunder, without the prior written consent of
the other Party, which shall not be unreasonably withheld. All
obligations and duties of either Party under this Agreement
shall be binding on all successors in interest and assigns of
such Party. Nothing herein is intended to limit Comcast's use
of third -party consultants and contractors to perform Services
under a Sales Order.
11.3 Notices. Any notice sent pursuant to the Agreement
shall be deemed given and effective when sent by facsimile
(confirmed by first-class mail), or when delivered by
overnight express or other express delivery service, in each
case as follows: (i) with respect to Customer, to the address
set forth on any Sales Order; or (ii) with respect to Comcast,
to: Vice President/Enterprise Sales, One Comcast Center,
1701 JFK Blvd., Philadelphia, PA 19103, with a copy to Cable
Law Department, One Comcast Center, 506' Floor, 1701 JFK
Blvd., Philadelphia, PA 19103. Each Party shall notify the
other Party in writing of any changes in its address listed on
any Sales Order.
11.4 Entire Understanding. The Agreement, together
with any applicable Tariffs, constitutes the entire understanding
of the Parties related to the subject matter hereof. The
Agreement supersedes all prior agreements, proposals,
representations, statements, or understandings, whether
written or oral, concerning the Services or the Parties' rights
or obligations relating to Services. Any prior representations,
promises, inducements, or statements of intent regarding the
Services that are not embodied in the Agreement are of no
effect. No subsequent agreement among the Parties concerning
Service shall be effective or binding unless it is made in writing
by authorized representatives of the Parties. Terms or conditions
contained in any Sales Order, or restrictive endorsements or
other statements on any form of payment, shall be void and of
no force or effect.
11.5 Tariffs. Notwithstanding anything to the contrary in
the Agreement, Comcast may elect or be required to file with
regulatory agencies tariffs for certain Services. In such event,
the terms set forth in the Agreement may, under applicable
law, be superseded by the terms and conditions of the Tariffs.
Without limiting the generality of the foregoing, in the event
of any inconsistency with respect to rates, the rates and other
terms set forth in the applicable Sales Order shall be treated as
individual case based arrangements to the maximum extent
permitted by law, and Comcast shall take such steps as are
required by law to make the rates and other terms enforceable.
If Comcast voluntarily or involuntarily cancels or withdraws a
Tariff under which a Service is provided to Customer, the
Service will thereafter be provided pursuant to the Agreement
and the terms and conditions contained in the Tariff
immediately prior to its cancellation or withdrawal. In the
event that Comcast is required by a governmental authority to
modify a Tariff under which Service is provided to Customer
in a manner that is material and adverse to either Party, the
affected Party may terminate the applicable Sales Order upon
a minimum thirty (30) days' prior written notice to the other
Party, without further liability
Enterprise Services General Tenns and Conditions veu LI
11.6 Construction. In the event that any portion of the
Agreement is held to be invalid or unenforceable, the Parties
shall replace the invalid or unenforceable portion with another
provision that, as nearly as possible, reflects the original
intention of the Parties, and the remainder of the Agreement
shall remain in full force and effect.
11.7 Survival. The rights and obligations of either Party
that by it nature would continue beyond the expiration or
termination of a Sales Order shall survive termination or
expiration of the Sales Order.
11.8 Choice of Law. The domestic law of the state in
which the Service is provided shall govern the construction,
interpretation, and performance of this Agreement, except to
the extent superseded by federal law.
11.9 No Third Party Beneficiaries. This Agreement
does not expressly or implicitly provide any third party
(including users) with any remedy, claim, liability,
reimbursement, cause of action, or other right or privilege.
11.10 Parties' Authority to Contract. The persons whose
signatures appear below are duly authorized to enter into the
,Agreement on behalf of the Parties name therein.
11.11 No Waiver: Etc. No failure by either Party to
enforce any rights hereunder shall constitute a waiver of such
right(s). This Agreement may be executed in counterpart
copies.
11.12 Independent Contractors. The Parties to this
Agreement are independent contractors. Neither Party is an
agent, representative, or partner of the other Party. Neither
Party shall have any right, power, or authority to enter into any
agreement for, or on behalf of, or incur any obligation or
liability of, or to otherwise bind, the other Party. This
Agreement shall not be interpreted or construed to create an
association, agency, joint venture, or partnership between the
Parties or to impose any liability attributable to such a
relationship upon either Party.
1.13 Article Headings. The article headings used herein
are for reference only and shall not limit or control any term or
provision of this Agreement or the interpretation or
construction thereof.
11.14 Compliance with Laws. Each of the Parties agrees
to comply with all applicable local, state and federal laws and
regulations and ordinances in the performance of its respective
obligations under this Agreement.
Enterprise Services General Terms and Conditions Ver. 1.1