R-1908 - 10/27/2020 - AGREEMENTS - Resolutions Supporting Documents f
l' v REVIEW OF CONTRACTS
Awarding Agency: Type of Contract:
Everstream Solutions, LLC 60 Month Agreement
Department: Program/Account Number:
Information Technology 151-72550
Awarded Contract Price: Budgeted Amount:
$48,000 $9,600 Annually
CONTRACT AMOUNT
Under $20,000 (E] $500,001 - $1,000,000
$20,000 - $500,000 FT Over $1,000,000
NOTES
A 60-Month Agreement to provide a secondary Internet Services connection to the Butler
Government Center to support the Village's computer network operations.
DEPARTME T DIR TOR SIGNATURE
Name: Date: / Aoki-
d. 7- ?,7�
i
INITIAL R IEWING ATTORrJFY SIGNATURE
Name: Date: Z(,2 o70
APPROVE"Y VILLAGE MANAGER
Name: Date: �o_ 2/-;eJ
FINAL REVIEW AS FORM ATTORNEY SIGNATURE
Name: Date: I0 .-L o?c2
Three (3) Originals signed by other party Date/Initials —6
Original provided to staff member for other party Date/Initials4K-S
Original provided to Official Files
Date/Initials
Village of oak Brook I Approved by Board of Trustees - Dat e/1 niiials:__________
eve rst reamry quote N: 0-25785-7
FASTER FIBER.BETTER BUSINESS. Date: 1 012612020
Expires On: 11/1212020
Sales Agent:Lori Dalesandro
Idalesandro@everstream.net
630-809-8600
Customer Details
Contact Name Jim Fox Account Name Village of Oak Brook
Emall jfox(igoak-brook.org Bill to Contact Name Jim Fox
Phone 6303685000
Billing Address 1200 Oak Brook Rd
Oak Brook It,60523-2203
1200 Oak Brook Rd A Location Headend
Z Location: rf Oak Brook Rd,Oak Brook,IL 60523-2203
CITY Product Name Bandwidth(Mbps) Term Non-Recurring Charges Monthly Recurring Charges
1.00 Dedicated Internet Access 200 65 $800.00
1.00 New Service Promotion:First 5 Months Free 65 $0.00
1.00 IPv4 Blocks/27(1 Gateway,29 Usable) 65 $0.00
Total NRC(Non-Recurring $0.00 Total MRC(Monthly Recurring $800.00
Charges) Charges)
Comments
-As a promotional offer to Subscriber,Everstream agrees to provide one(1)month free service for each year of this SO("Free Service").The Free
Service may only be taken in concurrence,at the beginning of the Initial Tenn.Free Service applies to MRC only and does not apply to variable or
usage-based Service.In order to qualify for Free Service,Subscriber must execute this SO by October 30,2020.Subscriber shall be liable for the
MRC associated with the Free Service upon any uncured payment failure which persists thirty(30)days beyond notice by Everstream,or upon early
termination.All other early termination charges and terms of the applicable MSA remain in effect.The 200M Symmetrical Dedicated Internet Access
Service will be Delivered between Jan 15—Feb 2,2021 in coordination with the customer,provided that all building permits are received and fiber
construction is complete.Demarcation:Village of Oak Brook Server Room Communication Rack,1200 Oak Brook Rd,Oak Brook,IL 60523.
Contract changes reflect the following:
Invoicing of service(s)shall begin with the issue of a Service Completion Notice document post installation.
Service Order Details
Subscriber approves and accepts this Services Order Amendment is governed by the Master Services Agreement between Subscriber and Everstream(the'MSA')[as
amended].Subscriber agrees to be bound by the terms and conditions of the MSA.The Requested FOC(Firm Order Commitment)date is subject to Everstream's internal
provisioning,and an actual FOC Date will be issued to Subscriber in accordance with the MSA.Terms of Service,including all active Subscriber Service Order Amendment(s),
together with your Everstream Master Services Agreement,constitute the entire agreement between you and Everstream relating to these Services.You are not entitled to
rely on any other agreements or undertakings relating to Services provided by Everstream.Invoicing of services)shall begin with the issue of a Service COFA document post-
installation.The delivered service(s)will be considered accepted by SUBSCRIBER as certified to be error free and built to"Service Order"specifications at the conduvon of a
five(5)day acceptance period.Internet service provides one(1)public-facing IPV4/30 address.
Subscriber shall pay all federal,state,and local taxes,government fees,charges,surcharges or similar exactions imposed on the Services and/or products that are the subject
of the Master Agreement including but not limited to state and local sales and use taxes,telecommunications taxes,federal and stale universal service fund fees and/or state
and local regulatory fees to the extent applicable.
SIGNATURES
SUBSCRIBER AUTHORIZED EVERSTREAM
SIGNATURE
Si e: Signature:
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Titl P tion: Title Position:
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Date: Date:
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FASTER FIBER,BETTER BUSINESS.
ENTERPRISE MASTER SERVICES AGREEMENT
This Master Services Agreement("Agreement"),effective the date of the last signature below(the"Effective Date"),is entered into by and between EVERSTREAM
SOLUTIONS LLC,an Ohio limited liability company,with a principal place of business at 1228 Euclid Ave.,Suite 250,Cleveland,Ohio 44115 together with its affiliate,
Everstream GLC Holding Company LLC,(collectively"Everstream"),and VILLAGE OF OAK BROOK,a Illinois municipal corporation,with a place of business at 1200 Oak
Brook Road,Oak Brook,Illinois 60523("Subscriber"). For good and valuable consideration,the receipt and sufficiency of which is hereby acknowledged,Everstream and
Subscriber(collectively,the"Parties"or each individually a"Party")agree as follows:
1.0 AGREEMENT 3.2 Provided that Subscriber properly performs all necessary Site preparation
and provides Everstream with all required consents,Everstream shall use
This Agreement,together with all incorporated terms and conditions(collectively commercially reasonable efforts to install the Service in accordance with
the"Agreement"),and any associated Service Orders as defined herein,hereby the latter ofthe service start date requested on a Service Order or the Firm
constitute the Master Services Agreement("MSA")by and between Everstream Order Commitment("FOC")date provided to Subscriber by Everstream.
and Subscriber for the Services specified on the associated Service Orders Everstream shall provide Subscriber with a Completion Notice upon
("Services"). The attachments to this Agreement further describe Everstream's completion of the installation of a Service.
Services and are hereby incorporated into and made a part of this Agreement.
2.0 SERVICES AND SERVICE ORDERS 4.0 SUPPORT&MAINTENANCE
Everstream shall use commercially reasonable efforts to maintain the all
2.1 Subject to the MSA,Everstream shall provide Subscriber with the Services Everstream owned equipment,including as applicable,any cabling,conduit,risers,
as detailed in any relative Service Order entered into by the Parties. routers, or any related equipment (collectively, "Everstream Equipment"), on
Everstream shall use commercially reasonable efforts to provide the Everstream's side ofthe demarcation points as identified in the applicable Service
Services seven (7)days a week,twenty-four(24) hours a day,excluding Order, including the point of termination of Everstream's equipment and
scheduled maintenance,required repair and events beyond Everstream's connection used by Everstream to provide the Service. Everstream Equipment
reasonable control. and Services on Subscriber's side of the demarcation points,as well as any other
2.2 Subscriber shall request Services by issuing to Everstream one or more Subscriber-provided equipment,are the responsibility of Subscriber. Everstream
proposed Service Order(s) (in the Service Order form provided by shall provide a toll-free telephone number and email address to its Network
Everstream). Upon Everstream's acceptance of a proposed Service Order, Operations Center("NOC") for inquiries and remote problem support for the
the terms and Service included in the Service Order shall be deemed Service. All such Subscriber support shall be provided only to Subscriber's
incorporated into,and made a part of,the MSA. A proposed Service Order designated personnel("Named Callers"),as mutually agreed upon by Everstream
shall not be deemed accepted until the earlier of(a)Everstream's written and Subscriber. Subscriber is responsible for all communications and interfaces
acceptance of such proposed Service Order; or (b) Everstream's with its End Users. In no event shall Everstream be responsible for providing
commencement of delivery of the Service(s)set forth in such proposed support for any network, equipment or software, not otherwise provided for
Service Order. under this Agreement,not provided and installed by Everstream or Everstream's
2.3 Invoicing of Service(s) shall begin with Everstream's issuance of a respective agents or subsidiaries.. Notwithstanding anything to the contrary in
Completion Notice following installation as contemplated by a Service the foregoing,Everstream shall usecommercially reasonable effortsto restore any
Order. The delivered Service(s)will be considered accepted by Subscriber fiber cable cuts on the Everstream network and shall keep Subscriber reasonably
and certified to be error free and built to the specifications requested advised of such restoration progress. Subscriber shall provide routine operational
unless Subscriber provides written notice and a detailed description of any Service support for Everstream Equipment and Service components collocated at
claimed shortcoming(s) within five (5) days of receiving the Notice of Subscriber's or an End Users facility,including without limitation by performing
Completion. reboots,as requested by Everstream.
3.0 SERVICE&EQUIPMENT INSTALLATION 5.0 DESCRIPTION OF BASIC SERVICES
3.1 Subscriber shall ensure that each Subscriber employee,customer,or user, 5.1 The Services provided by Everstream to Subscriber are:
which uses the Service(each,an "End User"), shall obtain and maintain (a) Design and Installation. Assistance in the design, selection and
throughout the Term,such consents(including without limitation landlord installation of the connection between the Subscriber network and the
and land owner consents) as are necessary to timely permit, and shall Everstream Network.
timely permit, Everstream personnel to install, deliver, operate and (b) Equipment Selection and Acquisition. Purchase, installation,
maintain the Services and Everstream Equipment(as defined herein and maintenance and operation of Everstream Network Equipment at the
includes any equipment owned by Everstream up and to the Demarcation Subscriber site(s),if required.
Point)at Subscriber's and any Subscriber End User's facilities. Subscriber
shall permit Everstream reasonable access to the Subscriber and End User (c) Maximum Guaranteed Bandwidth. A 1.5 Mbps to 10 Gbps connection
facilities as needed to install,configure,upgrade,maintain or remove the (as specified by each Service Order)between the Subscriber site and the
Everstream Equipment and other Service components collocated at Everstream Network and (if contracted) the Internet. The interface
Subscriber's or an End User's facilities. Subscriber shall make and maintain between this connection and the Subscriber's router shall consist of a
throughout the Term all reasonable preparations necessary to permit the single-mode or multi-mode fiber or copper 100/1000/10000 Mbps
installation,maintenance and operation ofthe Service and any Everstream Ethernet connection, as agreed between the Parties in the Service
Equipment as specified by Everstream and that is required to provide the Order(s). The connection value contracted for in Service Order
Services. Subscriber shall not charge Everstream,and shall ensure that represents the Minimum Guaranteed Bandwidth to be provided by
Everstream does not incur,any fees or expenses whatsoever in connection Everstream.
with Subscriber's provision of space,power,or access in areas under the (d) IP Transport between each Subscriber site(s)and:(i)Other Everstream
control of Subscriber (whether as owner or tenant) or otherwise in subscriber site(s)connected to the Everstream Network as identified by
connection with Subscribers performance of its obligations pursuant to Subscriber and;(ii)Other Everstream Subscriber site(s)and Service as
this MSA; and shall be solely responsible for any such fees or expenses identified by Subscriber and;(iii)The Internet(if contracted).
charged by a Subscriber End User. 1. A bandwidth capped service by which Everstream may cap the
bandwidth available at each Subscriber site to no less than the
everstream,
FASTER FIBER.BETTER BUSINESS;
maximum of the selected Internet Usage Level from the associated and maintenance of a connection from an agreed upon Subscriber site to
Service Order. Subscriber may agree to lower bandwidth caps. the Everstream Network via a Third-Party Provider. Subscriber may elect
2. Everstream calculates Internet Usage for each Subscriber by in writing to have Everstream,on Subscriber's behalf,be responsible for
separately measuring input and output bandwidth usage at 5-minute procuring a connection between Subscribers site and the Everstream
intervals. The Usage for a Subscriber is the value of the highest Network. Should Subscriber elect in writing to have Everstream procure a
remaining sample after throwing out the top 5%of each category. Third-Party connection, Everstream will oversee the installation and
The Subscriber's total Usage is the sum of the Usage for all of maintenance of that connection on Subscriber's behalf,and will provide
Subscribers sites. connection engineering and maintenance support during and after the
installation of the connection. Everstream will provide routine and
5.2 NETWORK OPERATIONS SUPPORT. reasonable Services related to network interface planning, engineering,
(a) Network Operations Center. Everstream shall use commercially and consulting support in installing and configuring the Subscribers Third-
reasonable efforts to provide the NOC services seven(7)days a week, Party connection to the Everstream Network. Based on the ASSOCIATED
twenty-four (24) hours a day, excluding scheduled maintenance, Service Order, Subscriber is directly responsible for the payment of all
required repair and events beyond Everstream's reasonable control. installation, recurring and non-recurring charges required to be paid to
Subscriber will use best efforts to comply with reasonable procedures Everstream or third-parties with respect to each Subscriber connection to
established from time to time by Everstream to best assure the ability the Everstream Network. Payments for these Services will be due when
of Everstream to diagnose,maintain and correct disruptions in network Subscriber orders the connection.
Services. A detailed description of Everstream's operations support, 5.4 SUBSCRIBER CONNECTION VIA FIBER BUILD TO THE EVERSTREAM
procedures and related matters is available upon request to the NOC. NETWORK. At Subscriber's written request, Everstream will provide to
(b) Core NOC Functions. NOC Functions include the following: (i) Open Subscriber,pricing for the installation and maintenance of a dedicated fiber
Service Tickets on all events, alarms and report trouble items; (ii) connection from an agreed upon Subscriber site to the Everstream
Conduct fault investigation and identifications;(iii)Implement network Network. Subscriber may elect in writing to have Everstream, on
repair and service restoration,including maintenance and upgrades;(iv) Subscribers behalf,responsible for procuring a dedicated fiber connection
Provision of remote logical service reconfiguration; (v) Dispatch field between Subscribers site and the Everstream Network. Should Subscriber
technical service to Subscriber locations as requested;(vi)Monitor and elect in writing to have Everstream procure a dedicated fiber connection,
report on network status and Subscriber connectivity status.(vii)Service Everstream will oversee the installation and maintenance of that
Levels outlined in the tables below: connection on Subscriber's behalf,and will provide connection engineering
•. ,
and maintenance support during and after the installation of the
connection. Everstream will provide routine and reasonable Services
Basic Service Level Agreement("SLA")Uptime is defined as the amount of time related to network interface planning,engineering,and consulting support
Subscriber has service as measured over the course of the year. Planned or in installing and configuring the Subscribers dedicated fiber connection to
Emergency Maintenance events are not factored into the Service Uptime
Calculation. Everstream calculates network uptime during a calendar month as the Everstream Network. Based on the associated Service Order,
follows: Availability per month = (total minutes in month) - (total min of Subscriber is directly responsible for the payment of all installation,
unavailability in month). recurring and non-recurring charges required to be paid to Everstream or
SLA Network uptime for managed Ethernet,MPLS,VPN 99.99% third parties with respect to each Subscriber dedicated fiber connection to
and Internet service Delivery. the Everstream Network. Payments for these Services will be due when
Basic SLA for Fiber Services (Everstream Indefeasible 99.90% Subscriber orders the connection.
Rights of Use("IRU")and leased fiber optic Services). 5.5 OWNERSHIP OF CONNECTION. Any Connection from the Everstream
Mean Time to Repair(MTTR)SLA are based upon the amount of time it takes to Network up to the Demarcation Point becomes part of the Everstream
restore Services measured from the time a NOC service request ticket("Ticket")is Network upon installation. Subscriber has no ownership interest in the
opened to the time the Ticket is closed. MTTR times vary based on whether the connection up to the Demarcation Point
problem being addressed physically resides on the Everstream Network("On-Net") 5.6 SERVICE UPGRADES. At any time, Subscriber may elect in writing to
• or on a third-party provider/Subscriber network("Off-Net"). increase the bandwidth of its connection to the Everstream Network
• Everstream On-Net Services. Four(4)Hrs.
without contract extension or the number of Subscriber sites connected to
Everstream off-Net services. six(6)Hrs.
Fiber Services(Everstream On-Net Only IRU). Eight(8)Hrs. the Everstream Network. As part of any such Service Upgrade,Subscriber
Note:Force Majeure acts are not covered under Everstream's MTrR SLA. Force will use its best efforts to cooperate with Everstream in coordinating the
Majeure includes,without limitation:fire,flood,lightening,explosion,war,act of engineering,installation,testing and production use ofthe new connection
terrorism,strike,riots,embargo,labor dispute,government requirement,civil or except as provided elsewhere in this Agreement. If the Service Upgrade
military authority,act of God or nature,acts or failure to act of any governmental imposes different requirements for environmental conditions,
authority. supplemental Equipment or similar items,Subscriber will have the option
to comply with those requirements and acquire(either directly or through
7, 0
� • Everstream)the necessary Equipment and pay any and all fees due under
tire network affecting outage that affects a large majority of the associated Service Order,continue the Agreement according to the
tream subscribers. original Terms,or terminate the associated Service Order.
tage affecting a single Everstream subscriber where service is
use
outage
r use. 5.7 EQUIPMENT RECOMMENDATION. Subscriber agrees to employ
utage affecting a single Everstream subscriber where service is commercially reasonable efforts to house Everstream-provided Equipment
intermittent but still usable. in accordance to the Everstream suggested environmental
utage affecting one Everstream subscriber where service is recommendations related to the temperature,humidity,and other related
ble but service is slow or minor packet loss;An outage affecting a factors which may impair the Equipment which shall be provided by
Subscriber;service is available but specific applications are slow Everstream. This includes the provisioning of power and space for
t operating properly with Subscriber configuration; Proactive Equipment needed to operate connection at Subscriber site(s) to
leshooting to locate an issue before it becomes a minor,major,or Everstream Network.
l issue.
6.0 SUBSCRIBER OBLIGATIONS
5.3 SUBSCRIBER CONNECTIONS VIA THIRD-PARTY. At Subscriber's written
request,Everstream will provide to Subscriber,pricing for the installation 6.1 Subscriber's use of the Service(including all content transmitted via the
Service)shall comply with all applicable laws and regulations and the Terms
2
everstream,
:ASTER FIBER.BETTER BUSINESS:
of the Master Agreement. Subscriber shall not resell or redistribute any third-party or government entity, and Subscriber shall have the
(whether for a fee or otherwise)the Service(s),or any portion thereof,or obligation to pay all charges regardless of the status of any such
make any use of the Service other than for Subscriber's internal business reimbursement, subsidy, discount or credit. Everstream shall have the
purposes,unless otherwise agreed in writing by Everstream. Subscriber right to increase Service Charges for each Service after the Initial Order
shall ensure that its End Users'use of the Service,if any,shall comply with Term for such Service upon thirty(30)days'written notice to Subscriber.
all applicable laws and regulations and Terms of the Master Agreement. Everstream may charge a late fee for any amounts which are not paid when
Upon reasonable notice to Subscriber,Everstream may audit Subscriber's due. The late fee shall be the greater of one and one-half percent(1.5%)
use of the"Service Bandwidth"to ensure Subscriber's compliance with the per month or the highest rate chargeable by law. If, at any time,
terms of the MSA and any related Service Order. Everstream has concern about security or timeliness of payments,it may
6.2 Subscriber will designate one of Subscriber's routers/switches from which suspend the Services and/or the rights granted hereunder upon advance
Subscribers fiber will connect to the Everstream Network. written notice to Subscriber until receipt of payment or establishment of a
letter of credit or other arrangement securing payment. Everstream shall
6.3 Subscriber will provide sufficient space for Everstream to install Equipment waive any right to collect any charges or expenses if not invoiced within six
to support the Services. Space will include sufficient power and (6)months of such charge or expense being incurred and Subscriber shall
environmental conditioning to support Equipment.Subscriber may provide pay such invoice which is not subject to 1.5%late fee,in accordance with
backup power or an uninterruptable power supply("UPS")or may contract these payment terms.If any of the payment terms provided in this Section
with Everstream separately for UPS. are found to violate any applicable Illinois law, Subscriber shall be
6.4 Subscriber is responsible for the installation,maintenance,and repair of responsible for the highest amount allowable provided that amount is not
Subscriber-premise fiber between the Demarcation Point and the higher than the amount provided in the applicable Service Order.
Subscribers switch or router. 8.2 Billing of a new or additionally added circuit begins upon the issuance of
6.5 Subscriber will assign an operational and technical contact person to the respective Notice of Completion.
coordinate with Everstream regarding Services being provided under this 8.3 SERVICE CREDIT. In the event of a Network Outage or disruption that is
Agreement. caused in whole or in part by the negligence or willful misconduct of
6.6 Subscriber shall ensure that all Everstream Equipment at Subscribers and Subscriber,Subscriber shall not be entitled to receive a credit. In all other
Subscribers End Users' facilities remains free and clear of all liens and cases, excepting maintenance or upgrade Services scheduled with
encumbrances,and Subscriber shall be responsible for loss or damage to Subscriber and those pursuant to"Force Majeure,"Subscriber is entitled
the Everstream Equipment while at Subscriber's or an End User's facilities. to receive a credit against the amount invoiced for Services provided during
Subscriber is responsible for ensuring that any Subscriber equipment used the month in which the Network Outage occurred. Credits are available on
in connection with the Services is protected from fraudulent or a per-outage basis (prorated on a monthly basis) in any given calendar
unauthorized access. In addition, Subscriber is responsible for: (a) all month. These service credits are the sole remedy available to Subscriber
content that is viewed,stored,or transmitted via the Service;and(b)all for service disruption or suspension of any kind whatsoever is described in
third-party charges incurred for merchandise and Services accessed via the the table below:
Service,if any. Subscriber shall conform its equipment and software,and
ensure that each End User conforms its equipment and software,to the Instance of •rk Credit Against
technical specifications for the Service provided by Everstream. Outage the Appropriate--
Month's
7.0 TERM <1 Hour 0%
The MSA shall commence upon the earlier of (a) the date of the last 1 Hour to<8 Hours 25%
signature on the Service Order ("Effective Date") or (b) Everstream's >=8 Hours 50%
commencement of delivery ofthe Service(s)set forth in a Service Order.The
MSA shall remain in effect for the Term specified in each associated Service Network Outage service credit requests shall be submitted electronically or
Order,or if no Term is specified,until the expiration or Termination of all in writing to Subscribers assigned Client Relationship Manager("CRM")or
Service Orders(the"Term").The Term for the applicable Service shall be set to the attention of the Everstream agent listed below.
forth in the Service Order("Initial Order Term")and shall remain in effect
until expiration as set forth in the Service Order. Unless otherwise specified 9.0 TAXES
in the Service Order,if the Subscriber continues to receive Services after the
expiration of the Initial Order Term,the Services shall renew on a month to 9.1 Subscriber shall pay all federal,state,and local taxes,government fees,
month basis.During any such month to month renewal period,either Party charges,surcharges or similar exactions imposed on the Services and/or
may terminate this Agreement or the effected Service Order upon no less products that are the subject of the MSA,including but not limited to state
than thirty(30)days written notice. and local sales and use taxes,telecommunications taxes,federal and state
universal service fund fees and/or state and local regulatory fees to the
8.0 PAYMENT extent applicable.
8.1 To the extent the following terms comport to applicable Illinois law as 9.2 Subscriber acknowledges that currently,and from time to time,there is
applied to Subscriber,for each Service,Subscriber shall pay Everstream all uncertainty about the regulatory classification and/or treatment of some
recurring and non-recurring charges, fees and taxes, (collectively the of the Services and,consequently,uncertainty about what fees,taxes and
"Service Charges") as set forth in the associated Service Order, in surcharges are due from Everstream and/or its Subscribers. Subscriber
accordance with the following payment Terms:Service Charges shall be agrees that Everstream has the right to determine,in its sole discretion,
billed to Subscriber on a monthly basis commencing upon Service which fees,taxes and surcharges are due and to collect and remit them to
installation,and are payable within thirty(30)days afterthe date appearing the relevant governmental authorities, and/or to pay and pass them
on the invoice. All payments hereunder will be in U.S.dollars by electronic through to Subscriber. Everstream shall promptly provide Subscriber
wire transfer to the bank account designated by Everstream from time to verification of any such increased charges or fees. Subscriber understands
time or by company check. Subscriber must bring any billing error to that it may obtain a list of the fees,taxes and surcharges that Everstream
Everstream's attention within forty-five(45)days after the date appearing currently collects or passes through by writing to Everstream at the
on the applicable invoice or Subscriber waives its right to a refund or credit provided herein.
associated with such billing error. Everstream shall not defer any charges 10.0 PROPRIETARY RIGHTS AND CONFIDENTIALITY
while Subscriber awaits reimbursement,subsidy,discount or credit from
3
eve rst ream
FASTER FIBER.BETTER BUSINESS-
10.1 All materials including, but not limited to, any Everstream Equipment Termination or expiration, and unless Everstream terminates this
including related firmware, software,data and information provided by agreement during the Initial Term, any commercially reasonable
Everstream,and any know-how,methodologies or processes including,but deinstallation fees and verifiable associated with the removal of the
not limited to,all copyrights,trademarks,patents,trade secrets,any other Everstream Equipment within Subscriber's Property as well as the removal
proprietary rights inherent therein and appurtenant thereto, used by of the associated fiber to the nearest public rights of way, if any; (c)
Everstream to provide the Service (collectively "Everstream Materials") Subscriber shall promptly cease all use of any software provided by
shall remain the sole and exclusive property of Everstream. Nothing herein Everstream under the MSA,and shall return such software to Everstream;
is intended to convey any right or ownership interest to Subscriber or any and (d) Subscriber shall return to Everstream or permit Everstream to
other person or entity in or to such Everstream Materials. Subscriber shall remove,in Everstream's discretion,the Everstream Equipment in the same
acquire no interest in the Everstream Materials by virtue of the payments condition as when received,ordinary wear and tear excepted. Subscriber
provided for under the Master Agreement. Subscriber may use the shall reimburse Everstream for the reasonable and documented costs of
Everstream Materials solely for Subscriber's use of the Service during any the repair or replacement,at Everstream's discretion,of any Everstream
applicable Order Term and the same may not be transferred by Subscriber Equipment not returned in accordance with these terms.
to any other person, corporation or entity except as permitted herein. 12.3 Notwithstanding anything to the contrary, in the event this MSA or any
Subscriber may not disassemble,decompile,reverse engineer,reproduce, associated Service Order terminates for any reason other than as
modify or distribute the Everstream Materials,in whole or in part,or use permitted,Subscriber shall,at Everstream's discretion: (a) promptly pay
them for the benefit of any third Parry. All rights in the Everstream Everstream the full amount of the Service Charges that Subscriber would
Materials not expressly granted to Subscriber in the MSA are reserved to have been charged forthe remainder ofthe Initial Term or the then-current
Everstream. Subscriber shall not open, alter, misuse, tamper with or Renewal Term;or(b)reimburse Everstream for all volume,Term or other
remove the Everstream Equipment and shall not remove any markings or discounts and credits provided in anticipation of full performance of
labels from the Everstream Equipment. Subscriber's obligations and any unpaid portion of the installation fee set
10.2 Subscriber shall maintain in confidence,and not to disclose to third-parties, forth in the applicable Service Order(s).
or use, except for such use as is expressly permitted in the MSA, the 12.4 The provisions of Sections 7-9,11-15,17 18,19,21—23 and 25 of the
Everstream Materials and together with any other information or materials MSA and the Attachments shall survive the Termination or expiration ofthe
provided by Everstream in connection with the MSA that is identified or MSA.
marked as confidential or are otherwise reasonably understood to be
confidential,including but not limited to the content of the MSA. 13.0 INDEMNIFICATION
10.3 If software is provided to Subscriber under the Master Agreement, The Parties agree to mutually defend, indemnify and hold harmless the other
Everstream grants Subscriber limited,non-exclusive and non-transferable Parry, its affiliates, service providers and suppliers as well as the other Parry's
license to use such software, in object code form only, solely for the respective officers,directors,employees and agents,from and against any third-
purpose of using the Service for Subscriber's internal business purposes parry claims,losses,liabilities,damages,costs and expenses,including reasonable
during the Term. attorneys'and other professional fees,arising out of or relating to:(a)the use of
11.0 EQUIPMENT UPGRADES AND MODIFICATIONS the Service;(b)personal injury or property damage caused by the negligence or
willful misconduct of either Party or its employees or agents.
Everstream maintains the right to upgrade,modify,and enhance the Everstream 14.0 DISCLAIMER OF WARRANTY
Equipment,including related firmware,and the associated Service. Everstream
also maintains the right to take any action that Everstream deems appropriate to EXCEPT AS SET FORTH IN SECTION 13, SUBSCRIBER ASSUMES TOTAL
protect the Service and the Everstream Equipment. RESPONSIBILITY FOR USE OF THE SERVICE AND USES THE SAME AT ITS OWN RISK.
12.0 TERMINATION EVERSTREAM EXERCISES NO CONTROL OVER AND HAS NO RESPONSIBILITY
WHATSOEVER FOR THE CONTENT TRANSMITTED OR ACCESSIBLE THROUGH THE
12.1 Either Party may terminate a Service Order: (a) upon thirty (30) days SERVICE, AND EVERSTREAM EXPRESSLY DISCLAIMS ANY RESPONSIBILITY FOR
written notice to the other Party of the other Party's material breach of the SUCH CONTENT. EXCEPT AS SPECIFICALLY SET FORTH IN THE MSA,THE SERVICE,
MSA or associated Service Order,provided that such material breach is not EVERSTREAM EQUIPMENT,AND EVERSTREAM MATERIALS ARE PROVIDED"AS IS,"
cured within such thirty(30)day period;(b)immediately,in the event that WITHOUT WARRANTIES OF ANY KIND,EITHER EXPRESS OR IMPLIED,INCLUDING
the other Parry liquidates,isadjudicated as bankrupt,makes an assignment BUT NOT LIMITED TO,DATA ACCURACY, MERCHANTABILITY OR FITNESS FOR A
for the benefit of creditors,invokes any provision of law for general relief PARTICULAR PURPOSE. EXCEPT AS SETFORTH IN THE MSA, NO ADVICE OR
from its debtors,initiates any proceeding seeking general protection from INFORMATION GIVEN BY EVERSTREAM,ITS AFFILIATES OR ITS CONTRACTORS OR
its creditors,or is removed ordelisted from a trading exchange(individually THEIR RESPECTIVE EMPLOYEES SHALL CREATE ANY WARRANTY. EXCEPT AS SET
a "Bankruptcy Event"); (c)immediately, in the event that,after entering FORTH IN THE MSA,EVERSTREAM DOES NOT REPRESENT OR WARRANTTHATTHE
into a Service Order,Everstream conducts a site survey and learns that the SERVICE WILL MEET SUBSCRIBER'S REQUIREMENTS, PREVENT UNAUTHORIZED
construction costs shall require a material increase in the Service Charges; ACCESS BY THIRD-PARTIES,BE UNINTERRUPTED,SECURE,ERROR FREE,WITHOUT
or(d)upon at least ninety(90)days written notice to the other Party before LOSS OF CONTENT, DATE OR INFORMATION OR THAT ANY MINIMUM
the end of an Initial Term or Renewal Term. In the event that Subscriber TRANSMISSION SPEED IS GUARANTEED AT ANY TIME. EXCEPT AS SET FORTH IN
fails to comply with any applicable laws or regulations or the Terms of the THE MSA AND SUBJECT TO ANY SLA, EVERSTREAM DOES NOT WARRANT THAT
MSA, upon thirty(30)days'written notice, Everstream may suspend or ANY SERVICE OR EQUIPMENT PROVIDED BY EVERSTREAM SHALL PERFORM AT A
discontinue any applicable Service in whole or in part without further PARTICULAR SPEED, BANDWIDTH OR THROUGHPUT RATE. IN ADDITION,
notice,provided that such failure is not cured within such thirty(30)day SUBSCRIBER ACKNOWLEDGES AND AGREES THAT TRANSMISSIONS OVER THE
period. In addition, Everstream may immediately terminate or suspend SERVICE MAY NOT BE SECURE. SUBSCRIBER FURTHER ACKNOWLEDGES AND
Subscribers use of the Service if such use is determined by Everstream,in AGREES THAT ANY DATA, MATERIAL OR TRAFFIC OF ANY KIND WHATSOEVER
its sole discretion, to be resulting in a material degradation of the CARRIED,UPLOADED,DOWNLOADED OR OTHERWISE OBTAINED THROUGH THE
Everstream network, until such time as such degradation has been USE OF THE SERVICE IS DONE AT SUBSCRIBER'S OWN DISCRETION AND RISK AND
remedied. THAT SUBSCRIBER SHALL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO
12.2 Upon the Termination or expiration of the MSA,including all associated SUBSCRIBER'S OR AN END USER'S COMPUTER SYSTEM OR EQUIPMENT
Service Orders: (a) Everstream's obligations under the MSA shall (INCLUDING NETWORK EQUIPMENT) OR LOSS OF SUCH DATA, MATERIAL OR
immediately cease;(b)Subscriber shall promptly pay all amounts due and TRAFFIC DURING,OR THAT RESULTS FROM,SUBSCRIBER'S OR ITS END USERS'S
owing to Everstream for Service(s) delivered prior to the date of USE OF THE SERVICE INCLUDING, BUT NOT LIMITED TO,SUBSCRIBER'S OR END
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FASTER FISER.BETTER BUSINESS:
USERS'S SENDING OR RECEIVING, OR UPLOADING OR DOWNLOADING, OR specified otherwise in the MSA or associated Service Order,each Party shall
ATTEMPTS TO DO SAME,OF SUCH DATA,MATERIAL OR TRAFFIC. provide all notices,pay all fees and comply with all laws,ordinances,rules
and regulations relating to its performance obligations specified in the
15.0 LIMITATION OF LIABILITY MSA.
15.1 IN NO EVENT SHALL EITHER PARTY BE LIABLE TO THE OTHER PARTY,AN 19.2 The M5A,including the Attachments and associated Service Order(s),are
END USER OR ANY THIRD-PARTY FOR ANY INCIDENTAL, INDIRECT, subject to all applicable federal,state or local laws and regulations in effect
CONSEQUENTIAL,SPECIAL OR PUNITIVE DAMAGES ARISING OUT OF OR in the relevant jurisdiction(s)in which Everstream provides the Services. If
RELATING TO THE MASTER AGREEMENT, REGARDLESS OF WHETHER any provision of the MSA, the Attachments, or the associated Service
EITHER PARTY HAD BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. Order(s)contravene or are in conflict with any existing law or regulation,
BOTH EVERSTREAM AND SUBSCRIBER'S AGGREGATE LIABILITY FOR ANY the terms of such law or regulation shall take priority over the relevant
REASON AND ALL CAUSES OF ACTION ARISING OUT OF OR RELATING TO provision of the MSA, the Attachments, and/or the associated Service
THE MSA (INCLUDING, BUT NOT LIMITED TO, CONTRACT, TORT Order(s). If the relevant law or regulation applies to some but not all of the
(INCLUDING NEGLIGENCE) AND STRICT PRODUCT LIABILITY) SHALL BE Service(s)being provided under the MSA,then such law or regulation shall
LIMITED TO THE FEES PAID OR OWED BY SUBSCRIBER UNDER THE SERVICE take priority over the relevant provision of the MSA,the Attachments,
ORDER THAT IS THE SUBJECT MATTER OF THE CLAIM IN THE TWELVE(12) and/orthe associated Service Order(s)only for purposes ofthose Service(s)
MONTHS PRECEDING THE DATE THE CLAIM ARISES. IN NO EVENT SHALL to which the law or regulation applies. Except as explicitly stated in the
EVERSTREAM'S AFFILIATES OR SUPPLIERS HAVE ANY LIABILITY TO herein, nothing contained in the MSA shall constitute a waiver by
SUBSCRIBER UNDER THE MASTER AGREEMENT.EVERSTREAM SHALL NOT Everstream of any rights under applicable laws or regulations pertaining to
BE RESPONSIBLE FOR ANY LOSSES OR DAMAGES ARISING AS A RESULT OF the installation, operation, maintenance or removal of the Services,
THE UNAVAILABILITY OF THE SERVICE, INCLUDING THE INABILITY TO facilities or equipment.
REACH EMERGENCY SERVICES, THE INABILITY TO CONTACT A SECURITY
SYSTEM OR REMOTE MEDICAL OR OTHER MONITORING SERVICE 20.0 GOVERNING LAW AND JURISDICTION
PROVIDER OR ANY FAILURE OR FAULT RELATING TO SUBSCRIBER This MSA shall be governed by and construed in accordance with applicable U.S.
EQUIPMENT,FACILITIES OR SERVICES. federal law and the laws of the State of Illinois,without regard to conflict of law
15.2 UNLESS CAUSED BY EVERSTREAM,OR ITS AGENTS AND AFFILIATES,AND principles. Each Party consents to the exclusive jurisdiction and venue of the U.S.
EXCEPT AS OTHERWISE PROVIDED IN THIS MSA, NEITHER EVERSTREAM, federal and Illinois state courts located in and serving the Village of Oak Brook,in
NOR ITS SERVICE SUPPLIERS SHALL BE LIABLE FOR UNAUTHORIZED ACCESS connection with any dispute arising out of or in connection with this Master
TO SUBSCRIBER'S TRANSMISSION FACILITIES OR PREMISE EQUIPMENT OR Agreement and/or its subject matter. Any claim that Subscriber wishes to assert
FOR UNAUTHORIZED ACCESS TO OR ALTERATIONS, THEFT OR under the MSA must be initiated not later than one(1)year after the claim arose.
DESTRUCTION OF SUBSCRIBER'S DATA FILES, PROGRAMS, PROCEDURES,
OR INFORMATION THROUGH ACCIDENT, FRAUDULENT MEANS OR 21.0 SEVERABILITY
DEVICES, OR ANY OTHER METHOD. SUBSCRIBER UNDERSTANDS THAT In the event that any portion of the MSA is held to be invalid or unenforceable,
NEITHER EVERSTREAM NOR ITS SERVICE SUPPLIERS ARE RESPONSIBLE FOR the invalid or unenforceable portion shall be construed in accordance with
THE CONTENT OF THE TRANSMISSIONS THAT MAY PASS THROUGH THE applicable law as nearly as possible to reflect the original intentions ofthe Parties
EVERSTREAM NETWORK CONNECTION, OR RELATED COMMUNICATION set forth in the MSA and the remainder of the MSA shall remain in full force and
SERVICES. NEITHER EVERSTREAM NOR ITS SERVICE SUPPLIERS SHALL BE effect.
LIABLE FOR THE ACCURACY OR QUALITY OF INFORMATION OBTAINED OR
DATA TRANSMITTED THROUGH USE OF THE EVERSTREAM NETWORK 22.0 ASSIGNMENT
CONNECTION,OR RELATED SERVICES. Subscriber may not assign the MSA or any associated Service Order without the
16.0 FORCE MAIEURE prior written consent of Everstream, except to a party that acquires all or
substantially all of Subscriber's assets that agrees to fulfill Subscriber's obligations
Notwithstanding anything to the contrary,a Party shall have no liability to the herein. Everstream may assign its rights and obligations under the MSA including,
other due to circumstances beyond its control,including,but not limited to,acts without limitation,in whole or in part,to any affiliate or a party that acquires all
of God,terrorism,flood,fiber cuts,natural disaster,regulation or governmental or substantially all of Everstream's assets,without the prior written approval of or
acts,fire,civil disturbance,weather,or any unauthorized access to or destruction notice to Subscriber. Subscriber understands and agrees that,regardless of any
or modification of the Service,in whole or in part(each a"Force Majeure Event"). such assignment,the rights and obligations of Everstream in the MSA may accrue
17.0 ENTIRE AGREEMENT to, or be fulfilled by, any affiliate, as well as by Everstream and/or its
subcontractors.
The MSA, including without limitation all Attachments, sets forth the entire
agreement between the Parties with respect to the subject matter hereof and 23.0 GENERAL
supersedes all previous written or oral agreements or representations between 23.1 If either Party fails to enforce any right or remedy under this MSA,that
the Parties with respect to such subject matter. failure is not a waiver of the right or remedy for any other breach or failure
18.0 ORDER OF PRECEDENCE AND CONFLICTS by the other Party. No waiver of any right hereunder,or breach of,this
MSA will be effective unless in writing and signed by an authorized
Each Service shall be provisioned pursuant an associated Service Order and the representative of the Party against whom the waiver is sought to be
MSA. If documents referred to in this MSA conflict with one another(including enforced.
conflicting contract expiration dates),any such conflicts will be rectified in the 23.2 There are no Third-Party beneficiaries to the MSA.The Parties to the MSA
following order:(a)Applicable Addendum,Attachment,Service Order;(b)MSA. are independent contractors.
19.0 COMPLIANCE WITH LAWS 24.0 NOTICES
19.1 As between the Parties,Everstream shall obtain and maintain at its own Any notice under the MSA shall be given in writing and shall be deemed to have
expense,all licenses,approvals and regulatory authority required by law been provided when received by the other Party at the respective addresses
with respect to Everstream's operation and provision of the Services. below:
Subscriber shall obtain and maintain at its own expense, all licenses,
approvals and regulatory authority required by law with respect to Everstream: Subscriber:
Subscriber's use of the Services as contemplated in the MSA. Unless Everstream Solutions LLC Village of Oak Brook
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FASTER FIBER.BETTER BUSINESS:
Attn:General Counsel 1200 Oak Brook Road 25.0 COUNTERPARTS
1228 Euclid Avenue Oak Brook,Illinois 60523
Suite 250 Attention:Village Manager The MSA may be executed in counterparts,each of which shall be deemed an
Cleveland,OH 44115 original and all of which together shall constitute one and the same instrument.
Facsimile and electronic signatures will be deemed to be original signatures.
ACCEPTED AND AGREED AS OF THE EFFECTIVE DATE:
EVERSTREAM SOLUTIONS LLC SUBSCRIBER
4-
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Name(Print or Type) I jeI Print or Type) A `
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Title Title
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Date Date
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