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HomeMy WebLinkAboutContract 1816FF_B-04-;~005 ].:~: Onvoy  300 South Highway 169 Minneapolis, MN 55420 952.230.4100 952.230.4200 fax ONVOY" envoy Services Agreement ~ of~. This envoy Services Agreement ("Agreement"), dated 211105 ("Effective Date") is between envoy, Inc. ("envoy"), a corporation organized under the laws of the State of Minnesota, wilh its principal place of business at 300 South Highway 169, Suite 700, Minneapolis, MN 55426, and City of Columbia Heights (the "Customer"), with its principal place of business located at 590 dOth Ave NE Columbia Heights, MN 55421 (each a "Party," and collectively, the "Parties"). 1. SCOPE OF AGREEMENT. This Agreement sets forth the terms and conditions under which envoy agrees to provide the Customer with those services ("Service(s)"), listed in the Addendum(s) and Exhibits to the Addendums to tr~e Agreement. Each Addendum and its related Exhibits shaft contain a description of Services and pricing. In the event of conflict between the terms of this Agreement and the terms of an Addendum, the Addendum terms shall govern. 2. EXCLUSIVE BENEFIT OF NAMED PARTIES. The provisions of this Agreement and its Exhibits are intended for the exclusive benefit of the Parties named above and not for the benefit of any third party. 3. TERM. The term of this Agreement will commence on the Effective Date provided that Customer has met Onvoy's credi~ requirements, and shall continue, unless earlier terminated as set forth in Section 11 (Termination) below. until all Service Terms set forth in the Addendums and Exhibits terminate or expire. 4, SERVICE FEES AND PAYMENT. (a) The fees and charges related to the Services (collectively,-the "Service Fees') are set forth in the Addendum(s) and their Exhibits as "Prices," "Rates," "Fees," or "Charges." (b) Customer acknowledges and agrees that envoy has the right to perform an investlgal~on of Customer's creditworthiness prior to Onvoy's acceptance of this Agreement. This credit investigation shall include, but not be limited to, contacting Customer's bank and trade references. envoy may, at its sole discretion, require a deposit, letter of credit or alternative form of payment to satisfy its credit requirements.. Notwithstanding the mutual dates of execution, the Agreement is expressly conditioned upon Onvoy's acceptance or Customer's creditworthiness. (c) The Customer agrees te pay Service Fees within thirty (30) days of the invoice date. Ail charges not paid within thirty (30) days will be assessed a late payment charge of one and one-half percent (1,5%) per month or the highest rate allowed by law, whichever is less. The Customer also shall pay, as an additional charge, any applicable sales and/or use tax. (d) Customer has the affirmative obligation to provide envoy with w~ittan notice of any dispute regarding Service Fees within sixty (60) days of Customer's receipt of the invoice containing Service Fees. If the Customer does not report an invoice dispute within the sixty (60) day period, Cusf~mer shall be deemed to have waived its dispute rights for that invoice and shall be deemed to have agreed to pay the invoice. 5. SERVICE LEVEL AGREEMENT. (a) envoy warrants that Services provided on Onvoy's network, defined as Onvoy's IP infrastructure, will be available on a continuous, twenty-four hour per day seven day a week basis, with the following service level commitments: (i) For all Services: ~, A Network Availability standan:! of 99.999% or better; · An average round-trip delay (Latency) rate of 50 ms or less; · A Packet Oefivery standard of 99.9% or better. (ii) For Converged IP Video and Voice Services, a maximum delay variance (Jitter) of 20 ms (iii) For Shared Web Hosting and Managed Application Services: . An Application Availability standard of 99.9% (measured on HTTP service for Managed Web Server; measured on SQL service for Managed De. base Server) (iv) For Hardware Server Rental · Replacement of failed hardware within four (4) hours of problem determination (b) For all Services other than Hosting Services, Service Level standards shall be measured by envoy using monthly averages of sample measurements taken between core routers. For Hosting Services, the Service Level sfandards shall be measured by envoy using measurements taken monthly between Onvoy monitoring servers and Customer's selected Service. (c) Customer's sole remedy for any failure by envoy to meet any of Ihs Service Level commitments noted in subsection 5(a) above shall be t~or Customer to receive a Service Credit from Onvoy to compensate Customer for the loss of or degradation in Service Quality ("Service Credit"). For Onvoy's failure to meet its Latency, Jilt. or Packet Delivery Service Level commi~ents, the Service Credit Shall be equal to one day of Customer's monthly recurring Service charges for the affected Service(s) for the month during which the measurement commitment is not met. In the evenl that envoy fails to meet its Network Availability or Application Availability Servic~ level commitment clue to an envoy network outage (other than during a maintenance period or planned service outage), Customer will be eligible to receive a Service Credit equal to two (2) days of its monthly recurring Service charges for each cumulative hour that the envoy Service was unavailable dudng the month that the outage occurred, not to exceed one month's Service fees. FEB-04-~5 ~2:22 Onvoy  300 South Highway 169 Minneapolis, MN 55426 952.230.,~100 952.230.4200 fax ONVOY" Party shall destroy (and certify as to said destruction) or return to the disclosing Party all tangible Confidential Information of the disclosing Party. (d) The confidentiality obligations of Onvoy and Customer shall survive any termination Or expiration of this Agreement and shall continue for a period of five (5) years after such termination and expiration; however, at no time whatsoever, may a recipient Party use a disclosing Party's Confidential Information for any purpose except for the limited purpose of fulfillment of the recipient Party's obligations under this Agreement. 9. CUSTOMER INDEI~NIFiCATION. The Customer warrants that neither Services or equipment used in conjunction with Services will be used by Customer fl3 conduct or engage in unlawful activities; to violate any law, regulation, or any Onvoy policy referred to in tflis Agreement; to violate or infringe upon the rights of any other party, including, without limitation, contractual rights, intellectual property rights, publicity and privacy rights and the right to be free from libel, defamation, and slander; or to act in any manner that encourages conduct that would constitute a criminal offense, give rise to a civil liability, or violate any other law. The Custoroer agrees to defend, indemnify, and hold Onvoy and its successors, assigns, agents, and licensors harmless from any and all claims, demands, liability, judgments, costs, and expenses (including reasonable a~toroeys' fees and disbursements) that directly or indirectly arise out of Or result from the Customer's use of the Services or any equipment used by Customer in conjunction with Services, except to the extent such claims arise out of the willful misconduct of Onvoy. t0. LIMITATION OF LIABILITY. in no event shall Onvoy or its suppliers be liable to the Customer or to any third pe~es for incidental, consequential, special, indirect, or punitive damages of any kind, including, but not limited to, damages arising from loss of data, loss of use, loss of profits or revenues, or breach of network security, whether based upon a theory of breach of warranty, breach of contract, negligence, or any other legal theory, even if Onvoy or its agent has been advised of the possibility of such damages. Onvoy's total liability to the Customer under this Agreement will be limited to direct damages in an amount not to exceed the amount of Service Fees paid by Customer under this Agreement for the Services g~ving rise to the liability during the most recent twelve (12) month period. 1t. TERMINATION. (a) Either Party may terminate [his Agree~T~en~ or any Service provided under this Agreement for its convenience by giving the other Party ninety (90) days advance notice, unless there is a minimum Service Term set forth in one or more Exhibits, in which event neither the Service or the Agreement may be terminated without penalty before the end of the minimum Service Term. Onvoy Services Agreement (b) Onvoy may terminate this Agreement or suspend Services hereunder at any time for cause upon; (i) Customer's failure to meet Onvoy's credit approval standards; (ii) Any failure of Customer to pay any undisputed amounts as provided in this Agreement; (iii) Any breach by Customer of any material provision of this Agreement continuing uncured for thirty (30) days after receipt of notice thereof; (iv) Any insolvency, bankruptcy, assignment for the benefit of creditors, appointment of a trustee or receiver, or siroilar event with respect to Customer;, or (v) Any governmental prohibition or required alteration of the Services to be provided hereunder. (c) If Onvoy fails to cure a materiel breach of this Agreement within thirty (30) days of the date that Onvoy is notified of such breach by Customer. the Customer roay terminate the Agreement for cause, (d) If the Customer terminates any Service under this Agreement for its convenience or if Onvoy terminates any Service under this Agreement for a default by the Customer. the Customer shall pay Onvoy: (i) all Service Fees incurred up to through the termination date, end (ii) a termination charge equal to seventy-five (75%) percent of the Service Fees for each Customer site for each month remaining in the Service Term after the date of termination. Customer acknowledges and agrees that although Onvoy'$ damages in the event of termination of Services are difficult to estimate, the foregoing is a reasonable estimate of such damages and is not a penally. 12. NOTICE. All notices under this Agreement shall be in writing and be deemed given (a) on the day when delivered personally or sent by facsimile copy or eleclronic mail, provided receipt is confirmed; (b) on the next business day after being sent by overnight courier, provided receipt is confinmed; or (c) three (3) business days after being mailed via the United States Postal Service; provided, in ell cases, notine is sent to the appropriate Party at the address set forth below, or at such other address as a party may specify in writing to the other Patty: If to Customer__(if address differs from addr_e_~nature block): If to Onvoy: Onvoy. Inc. 300 Sou~ Highway 169 Suite 700 Minneapolis, MN 55426 O~1V0¥ Pf0~ielSly ~0 C0~f~[J,~l 10.11.0d Onv~y A~=~i~.ed Conlram Teml~la(e FEB-04-2005 12:23 ONVOY 13. ~NE~ (e) ~.~M, ~r ~ ~y be un~ ~ld: ~. Only may ~n~n of Ihe ~rms of ~is ~nt shall a~ ~id. [b) ~e ~t. ~ia ~m~em and ~ E~b~s ~ ~ e~ ~t of ~ m~ ~ ~ s~t ma~ ~tai~ heroin. (d) ~n~. The ~;lu~ of eider ~ I0 e~ (e) ~ndep~ ~n~. ~ ~nshlp ~ C~er and 0~ ~ ~ ~ ~n~ ~. INs ~nl s~ff ~mp~ ~ all ~ ~e~ ~ ifl~ed ~l~v for ~e ~n~e Ot ~e ~) ~b~. H a ~u~ot a g~mmen~ ~w~h ~per j~i~ d~es ~ a pmvi~ of this ~m ts an~l, I~ ~ ~ ~ ~en. and if ~ ~es ~n O) ~vemi~ ~. ~ ~m~ ~l be ~ bV and e~ for l~ ~vis~ns ~iq ~ of I~, 8~ e~ ~ O) For~ ~u~. Wi~ ~e ~pe~n of pa~em ~ ~nd me Pa~s ma~n~ ~1, i~u~ ~ ~t I~ed er adm~[~i~e a~n lo ~e~r o~ ~;ef a ~ud may award. FEB-04-2005 1~: 23 ©NV©¥' {O) P~ S~ ~ ~r ~ in tho e~t L~ 2 = I~.0 MB, Le~i 3 = ~.0 M~ Or in~ ~un any I~, ~i~ p~ ~, OfvA~ ~=',zm~ C ~z Y~,~at e Pri¢i~j E~h~bi~ C~ of Columbia Heights TOTRL P,~? TOTAL P.O? F~B-O~-~005 1~: ~1 ONVOY' Onvo¥ 300 South Highway 169 Minneapolis, I~N 55426 WWW.OI1VOy.COm 952,~30.4~00 main Fax Covershee To: Paul Grosse Fax: 763.706.3637 From: Ryan Horstman Date: 2/:t/2D05 Re; New envoy Web Ho~ng Contract Pages; '~ (including cover) Ryan Horstman ~n.ho~tm~n@on¥oy.com 9~2.2~0.4277fa×