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IT08-313 - Original - Qwest Communications Corporation - Kent Events Center Loyal Advantage Agreement - 08/29/2008
QWEST LOYAL ADVANTAGE®AGREEMENT This Qwest Loyal Advantage Agreement ("Agreement") is between Qwest Communications Corporation including its subsidiaries ("Qwest" or"QCC") and City of Kent("Customer') and is effective on the date QCC signs it("Effective Date"). The offer contained in this document is only valid through September 30, 2008, and will expire if Customer does not execute and deliver the Agreemen to QCC on or before that date. CUSTOMER, QTY OF KENT QWEST COMM NI T CORPORATION By: f By: Na Name: C L ✓�✓1 Titl : Title: -C/w J M Date: Date: C1 0 1. Services. QCC will provide, and Customer will purchase,the services("Services")set forth in service exhibits("Service Exhibits") attached hereto. Customer agrees that it will not resell the Services and that its use of the Services will comply with all applicable laws. Qwest will provide Service if: (a)there is a valid, accurate, and complete Order Form submitted by Customer; (b)adequate capacity is available;and(c)Qwest accepts the Order Form. Qwest may change features or functions of its Services;for material changes, Qwest will provide 30 days' prior written notice, but may provide a shorter notice period if the change is based upon Regulatory Activity. The parties agree that any notation to the "Qwest Total Advantage® Agreement" or "QTA Discount" on the Service Exhibits will be disregarded and such exhibits will be governed by the Agreement. The Service Exhibits attached hereto as of the Effective Date are: Qwest Select Advantage, Procurement w/System Warranty,and Integration. 2. Term. Customer selects the following"Initial Term"of the Agreement:three year("Initial Term"),600053 code. At the end of the Initial Term,this Agreement will automatically renew for consecutive renewal periods equal to the Initial Term (a"Renewal Term") if not terminated earlier in accordance with this Agreement. The Initial Term and each Renewal Term are referred to as the"Term." 3. Rates. During the Initial Term, Qwest will apply: (a) for Dynamic Rates, the rates in effect as of the Effective Date unless Customer receives a promotional net rate; or(b)for Static Rates,the rates that are in effect at the time the service is ordered. When the Agreement renews, Qwest will apply: (c) for Dynamic Rates, the then-current rates unless Customer received a promotional net rate; or (d) for Static Rates, the rates that are In effect at the time the service is ordered. After the conclusion of each Service's minimum service period, Qwest reserves the right to modify Static Rates and promotional discounts off Dynamic Rates upon not less than 30 days' prior written notice to Customer; provided that Qwest may reduce the foregoing notice period or modify rates or discounts prior to the conclusion of the minimum service period,as necessary, if such modification is based upon Regulatory Activity. If Regulatory Activity causes an increase in the rates for Customers ordered Services that materially and adversely affects Customer, then Customer may terminate the affected Service upon 30 days' prior written notice to QCC without liability for Cancellation Charges for the affected Service, provided, however that Customer: (e) provides such notice within 30 days after the increase occurs; and (0 provides QCC 30 days to cure such increase. If Customer does not provide QCC such notice during the time permitted in this Section, Customer will have waived its right to terminate the affected Service under this Section. 4. Payment. Customer must pay QCC all charges within 30 days from the invoice date. Any amount not paid when due will be subject to late interest of 1.5%per month. Customer must also pay QCC any applicable Taxes assessed In connection with Customer's Services. Taxes are subject to change. QCC may reasonably modify the payment terms or require other assurance of payment based on Customer's payment history or a material and adverse change in Customers financial condition. 5. Licenses; Dispatch Fee. 5.1 If Qwest must access a building that houses Customer's premises to Install, operate, or maintain Service or associated Qwest equipment, Customer will provide or secure at Customer's expense the following items: (a)appropriate space and power; and(b)rights or licenses. 5.2 Any facility or equipment repairs on Customers side of the demarcation point are Customers responsibility. If Customer requests a technician visit for a problem that Qwest determines:(a) not to be caused by Qwest facilities or equipment on the Qwest side of the demarcation point; or(b) is on Customer's side of the demarcation point, Qwest will assess a separate dispatch fee. Qwest will notify Customer and obtain Customers authorization before dispatching a technician. 6. Disclaimer of Warranties. EXCEPT FOR EXPRESS WARRANTIES SET FORTH IN THIS AGREEMENT, SERVICE EXHIBIT, SERVICE DESCRIPTIONS, OR DETAILED DESCRIPTION, QWEST DISCLAIMS ALL EXPRESS OR IMPLIED WARRANTIES, INCLUDING WITHOUT LIMITATION, WARRANTIES OF TITLE, NONINFRINGEMENT, MERCHANTABILITY, OR FITNESS FOR A PARTICULAR PURPOSE. EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT, SERVICE EXHIBIT, OR DETAILED DESCRIPTION, CUSTOMER ASSUMES TOTAL RESPONSIBILITY FOR USE OF THE SERVICES. QCC DISCLAIMS: (A) ANY LIABILITY FOR LOSS, DAMAGE, OR INJURY TO ANY PARTY AS A RESULT OF ANY CPE;AND(B)ALL WARRANTIES FOR CPE. 7. Limitation of Liability. 7.1 NEITHER PARTY, ITS AFFILIATES, AGENTS, OR CONTRACTORS WILL BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, RELIANCE, PUNITIVE, OR CONSEQUENTIAL DAMAGES OR FOR ANY LOST PROFITS OR REVENUES OR LOST Page 1 Copyright®Qwest.All Rights Reserved CONFIDENTIAL v1.080108 QWEST LOYAL ADVANTAGE®AGREEMENT DATA OR COSTS OF COVER RELATING TO THE SERVICES OR THIS AGREEMENT, REGARDLESS OF THE LEGAL THEORY UNDER WHICH SUCH LIABILITY IS ASSERTED. WITH REGARD TO ANY SERVICE RELATED CLAIM BY CUSTOMER FOR DAMAGES THAT IS NOT LIMITED BY THE PRECEDING SENTENCE, CUSTOMER'S EXCLUSIVE REMEDIES FOR SUCH CLAIM WILL BE LiMiTED TO: (A) THOSE REMEDIES SET FORTH iN THE APPLICABLE SERVICE LEVEL AGREEMENT; OR (B) IF NO SERVICE LEVEL AGREEMENT EXISTS, THE TOTAL MRCs OR USAGE CHARGES PAID BY CUSTOMER TO QCC FOR THE AFFECTED SERVICE IN THE ONE MONTH IMMEDIATELY PRECEDING THE OCCURRENCE OF THE EVENT GIVING RiSE TO THE CLAIM. EACH PARTY'S TOTAL AGGREGATE LIABILITY RELATED TO THIS AGREEMENT WILL NOT EXCEED THE TOTAL MRCs AND USAGE CHARGES PAID BY CUSTOMER TO QCC UNDER THIS AGREEMENT IN THE THREE MONTHS IMMEDIATELY PRECEDING THE OCCURRENCE OF THE EVENT GIVING RISE TO THE CLAIM ("DAMAGE CAP"). This limitation of liability and Damage Cap will not apply to a party's obligations under the Responsibilities Section below or Customer's payment obligation for charges under this Agreement (e.g., Service charges, Taxes, interest, Early Termination Charges, and Cancellation Charges). 7.2 Any claim relating to this Agreement must be brought within two years after the claim arises. 8. Personal Injury, Death, and Property Damage. To the extent permitted under law, each party will be responsible to the other party for the actual, physical damages directly caused by its negligent acts or omissions in the course of its performance under this Agreement, limited to damages resulting from personal injury or death to a party's employees and loss or damage to a party's personal tangible property. Damages under this Section will be subject to the limitation of liability in this Agreement but not the Damage Cap. 9. Responsibilities. To the extent permitted under law,each party agrees to be responsible to the other party, its Affiliates,agents, and contractors against all third party claims, liabilities, costs, and expenses, including reasonable attorneys'fees, involving personal injury or death to persons or loss or damage to personal tangible property resulting from the gross negligence or willful misconduct of the responsible party. To the extent permitted under law, Customer also agrees to be responsible for all third party claims, liabilities, costs, and expenses, including reasonable attorneys' fees against QCC, its Affiliates, and contractors, related to the modification or resale of the Services by Customer or End Users,or any AUP violation. 10. Termination. 10.1 Service; Service Exhibit. Either party may terminate an individual Service or a Service Exhibit: (a) in accordance with the individual Service Exhibit's term requirements with 60 days' prior written notice to the other party; or (b) for Cause. If Service or a Service Exhibit is terminated by Customer for any reason other than for Cause or by Qwest for Cause, then Customer will pay Cancellation Charges, if any, under the terms of the Service Exhibit. Customer will remain liable for charges accrued but unpaid as of the termination date. 10.2 Agreement. Either party may terminate this Agreement and all Service by: (a) providing written notice to the other party of its intention not to renew the Agreement at least 60 days prior to the expiration of the then current Term; or(b)for Cause. if Customer terminates this Agreement for Service-related claims, Cause to terminate an individual Service Exhibit will not constitute Cause to terminate this Agreement; rather, Cause to terminate the entire Agreement for Service-related claims will exist only if Customer has Cause to terminate all or substantially all of the Services under the applicable service level agreement, Service Exhibit, or Tariff. If Customer terminates this Agreement for Convenience or QCC terminates it for Cause prior to the conclusion of the Term, then Customer will pay the higher of: (c) the Early Termination Charge; or (d) the total Cancellation Charges that apply for terminating all QCC Service at the time the Agreement is terminated. 11. CPNI. Qwest is required by law to treat CPNI confidentially. Customer agrees that Qwest may share CPNf within its business operations (e.g., wireless, local, long distance, and broadband services divisions), and with businesses acting on Qwest's behalf, to determine if Customer could benefit from the wide variety of Qwest products and services, and in its marketing and sales activities. Customer may withdraw its authorization at any time by informing Qwest in writing. Customer's decision regarding Qwest's use of CPN I will not affect the quality of service Qwest provides Customer. 12. Confidentiality; Publicity. Except to the extent required by an open records act or similar law,neither party will,without the prior written consent of the other party: (a) disclose any of the terms of,this Agreement or use the name or marks of the other party or its Affiliates; or (b) disclose or use (except as expressly permitted by, or required to achieve the purposes of, this Agreement) the Confidential Information of the other party. Each party will use reasonable efforts to protect the other's Confidential Information,and will use at least the same efforts to protect such Confidential Information as the party would use to protect its own. Qwesfs consent may only be given by its Legal Department. A party may disclose Confidential Information if required to do so by a governmental agency,by operation of law,or if necessary in any proceeding to establish rights or obligations under this Agreement,provided that the disclosing party gives the non-disclosing party reasonable prior written notice. 13. Dispute Resolution;Governing Law. The parties shall attempt in good faith to resolve through negotiation any dispute,claim or controversy arising out of or related to this Agreement. Either party may initiate negotiations by providing a written notice to the other party setting forth the dispute and the relief requested. If the parties are unable to resolve such dispute within a reasonable period of time, either party may commence a civil action in a court of competent jurisdiction located,at the option of the moving party, in either: (a) the place of business of the other party, as indicated in the address to which required notices must be sent; or (b) in Denver, Colorado. To the extent the Communications Act of 1934 does not govern,this Agreement shall be governed by the laws of the State in which the Customer's principal office is located without regard to its choice of law principles. Notwithstanding the above, any action by QCC to collect payment for services may be commenced in Denver,Colorado. Each party hereby expressly waives its right to a trial Page 2 Copyright®Qwest.All Rights Reserved CONFIDENTIAL v1.080108 QWEST LOYAL ADVANTAGE"AGREEMENT by jury and consents to the jurisdiction of such courts for the purposes described in this Section. Such court shall not award any indirect, incidental, special, reliance, punitive, or consequential damages, Including damages for lost profits. Each party shall bear the cost of preparing and presenting its own claims and/or defenses(including its own attorneys'fees). 14. Non-Appropriations. Customer intends to continue this Agreement for its entire Term and to satisfy its obligations hereunder. For each fiscal period for Customer: (a)Customer agrees to include in its budget request appropriations sufficient to cover Customer's obligations under this Agreement; (b)Customer agrees to use all reasonable and lawful means to secure these appropriations, including but not limited to applying for Universal Service Fund Discounts as described in the Federal Communications Commission Docket No.96-45; (c) Customer agrees it will not use non-appropriations as a means of terminating this Agreement in order to acquire functionally equivalent products or services from a third party. Customer reasonably believes that sufficient funds to discharge its obligations can and will lawfully be appropriated and made available for this purpose. In the event that Customer is appropriated insufficient funds, by appropriation, appropriation limitation or grant, to continue payments under this Agreement and has no other funding source lawfully available to it for such purpose(as evidenced by notarized documents provided by Customer and agreed to by QCC),Customer may terminate this Agreement without incurring an Early Termination Charge or Cancellation Charges by giving QCC not less than 30 days' prior written notice. Upon termination and to the extent of lawfully available funds, Customer will remit all amounts due and all costs reasonably incurred by QCC through the date of termination. 15. Notices. 15.1 Required Notices. Customer's current address, facsimile number, and person designated for notices are: Unless otherwise provided herein, all required notices to QCC must be in writing, sent to 1801 California St., #900, Denver, CO 80202; Fax:888-778-0054; Attn.: Legal Dep't., and to Customer at its then current address as reflected in QCC's records; Attn.: General Counsel or other person designated for notices. Unless otherwise provided herein or in a Service Exhibit, all notices will be deemed given: (i)when delivered in person to the recipient named above; (ii) three business days after mailed via regular U.S. Mail; (III) when delivered via overnight courier mail;or(tv)when delivered by fax if duplicate notice is also sent by regular U.S. Mail. 15.2 Service Termination Notices. Customer's notice of termination for QCC Services must be sent via mail, facsimile or e-mail to: Qwest, Attn.: Dublin Service Center, GBM Disconnects, 4650 Lakehurst, 2nd Floor Disconnect Center, Dublin, OH 43017, FAX: 866.887.6633, e-mail: GBMdisconnectsO-awest.com. Such termination will be effective 30 days after QCC's receipt of the notice, unless a longer period Is otherwise required. For Services under the Select Advantage Service Exhibit, Customer must call the customer care number specified on Customer's invoice to provide notice of termination. 16. Assignment. Either party may assign this Agreement without the other party's prior written consent: (a) in connection with the sale of all or substantially all of its assets; (b)to the surviving entity in any merger or consolidation; (c)to an Affiliate; or(d)to satisfy a regulatory requirement imposed upon a party by a governmental body with appropriate authority; provided such party gives the other party 30 days' prior written notice of such assignment. Any assignee of the Customer must have a financial standing and creditworthiness equal to or better than Customer's, as reasonably determined by Qwest, through a generally accepted, third party credit rating index(i.e. D&B,S&P,etc.). Any other assignment will require the prior written consent of the other party. 17. General. This Agreement is intended solely for QCC and Customer, and not the benefit of any other person or entity(e.g., End Users). If any term of this Agreement is held unenforceable, such term will be construed as nearly as possible to reflect the original intent of the parties and the remaining terms will remain in effect. Except for time requirements as specifically stated in a Service Exhibit or SLA, neither party's failure to insist upon strict performance of any provision of this Agreement will be construed as a waiver of any of its rights hereunder. All terms of this Agreement that should by their nature survive the termination of this Agreement will so survive. In the event of a conflict in any term of any documents that govern the provision of Services hereunder, the following order of precedence will apply in descending order of control:a Service Exhibit,this Agreement, and any Order Form. If Services are provided pursuant to a Tariff or RSS, as described in the applicable Service Exhibits, the order of precedence will apply in the following descending order of control: Tariff,Service Exhibit,Agreement, RSS,and Order Form. Certain Service Exhibits may contain terms that vary considerably from the terms set forth in this Agreement. Neither party will be liable for any delay or failure to perform its obligations hereunder if such delay or failure is caused by a Force Majeure Event. Except for Service modifications initiated by QCC or as set forth in a Service Exhibit, all amendments to this Agreement must be in writing and signed by the parties' authorized representatives. Each party reserves the right at any time to reject any handwritten change to this Agreement. Customer represents that its full legal name is accurately stated, the person signing this Agreement is duly authorized to do so, and the execution of this Agreement is not in conflict with any laws, charters, bylaws, articles of association, or agreements to which Customer is bound or affected. Qwest may act in reliance upon any instruction or signature reasonably believed by Qwest to be genuine. 18. Entire Agreement. This Agreement, any applicable Service Exhibit, Detailed Description, Service Descriptions, and Qwest- accepted Order Forms constitute the entire agreement between Customer and QCC and supersede all prior oral or written agreements or understandings relating to this subject matter. 19. Definitions. "Affiliate"means any entity controlled by,controlling,or under common control with a party. "AUP"means the Qwest Acceptable Use Policy,which is posted at hfp://Www.gwest.comAe-gaV,including all future revisions. "Cancellation Charge'means: (a) charges that apply if a QCC Service is canceled for Convenience before its minimum service period described in the Service Exhibit expires; (b)charges incurred by QCC from a third party provider as a result of an early termination for Page 3 Copyright®Qwest.All Rights Reserved CONFIDENTIAL v1.080108 QWEST LOYAL ADVANTAGE®AGREEMENT Convenience; and(c)Termination Charges as set forth in the Qwest Select Advantage Service Exhibit. "Cause" means the failure of a parry to perform a material obligation under this Agreement, which failure is not remedied: (a)for payment defaults by Customer, within five days of separate written notice from QCC of such default; or (b) for any other material breach,within 30 days of written notice(unless a different notice period is specified in this Agreement). "Confidential Information"means any information that is not generally available to the public,whether of a technical, business, or other nature, (including Customer information or CPNI, and that: (a) the receiving party knows or has reason to know is confidential, proprietary, or trade secret information of the disclosing party; and/or(b)is of such a nature that the receiving party should reasonably understand that the disclosing party desires to protect such information against unrestricted disclosure. Confidential Information will not include information that is in the public domain through no breach of this Agreement by the receiving party or is already known or is independently developed by the receiving party. "Convenience"means any reason other than Cause. i'CPE"means any customer equipment,software,and/or other materials of Customer used in connection with the Service. "CPNI" means Customer Proprietary Network Information, which includes confidential account, usage, and billing-related information about the quantity,technical configuration,type,destination,location, and amount of use of a customer's telecommunications services. CPNI reflects the telecommunications products, services, and features that a customer subscribes to and the usage of such services, including call detail information appearing in a bill. CPNI does not include a customer's name,address,or telephone number. "Detailed Description"is defined in the Select Advantage Service Exhibit. "Dynamic Rates"means rates based upon Qwest database entries which may change as described in this Agreement. "Early Termination Charge" means an amount equal to 35% of the average monthly charges billed under this Agreement through the date of termination multiplied by the number of months remaining in the Term. "End User" means Customer's members, end users,customers, or any other third parties who use or access the Services or the QCC network via the Services. "Force Majeure Event" means an unforeseeable event beyond the reasonable control of that party, including without limitation: act of God, fire, flood, labor strike, sabotage, cable cut not caused by QCC, acts of terror, material shortages or unavailability, government laws or regulations, war or civil disorder,or failures of suppliers of goods and services. "MRC"means monthly recurring charges. "NRC"means nonrecurring charges. "Order Form" Includes both order request forms and quotes issued by QCC. If a QCC service requires a quote to validate the Order Form pricing,the quote will take precedence over the order request form,but not over the Service Exhibit. "Regulatory Activity" is a regulation or ruling, including modifications thereto, by any regulatory agency, legislative body or court of competent jurisdiction. Qwest reserves the right to amend, change, withdraw or file additional Tariffs or RSS in its sole discretion,with such updated Tariffs or RSS effective upon posting or upon fulfillment of any necessary regulatory requirements. "RSS" means as applicable: QCC's Rates and Services Schedule posted at www.owest.com/leaal and other rate and term schedules, incorporated by this reference. "Service Descriptions"is defined in the Managed Applications Service Exhibit. "State"means one of the 50 states of the United States or the District of Columbia. "Static Rates"means rates that are in effect at the time service is ordered and which may change as described in this Agreement. "Tariff'includes as applicable:QCC state tariffs, price lists,price schedules,administrative guidelines,catalogs,and rate and term schedules,incorporated by this reference. "Taxes"means foreign,federal,state,and local excise,gross receipts,sales,privilege,or other tax(other than net income) now or in the future imposed by any governmental entity(whether such Taxes are assessed by a governmental authority directly upon QCC or the Customer)attributable or measured by the sale price or transaction amount,or surcharges,fees,and other similar charges,which are required or permitted to be assessed on the Customer. Page 4 Copyright®Qwest.All Rights Reserved CONFIDENTIAL v1.080108 QWEST TOTAL ADVANTAGE®AGREEMENT QWEST®SELECT ADVANTAGETM SERVICE EXHIBIT 1. General; Definitions. Capitalized terms not defined herein are defined in the Agreement. QCC will provide Products and Services (collectively "Solutions") under the terms of the Agreement, the Service Exhibit, the Purchase Order and/or SOW. This Service Exhibit may not be used for the purchase of voice,data or IP services. In the event of a conflict In any term of any documents that govern the provision of Solutions hereunder,the following order of precedence will apply in descending order of control:any SOW, any Detailed Description(s),this Service Exhibit,the Agreement,and any PO. With respect to the Agreement,"Service"is replaced by "Solution"as defined herein,and"Order Form"is replaced with"Purchase Order"as defined herein. "CPE" means either: (a) Customer Purchased Equipment, or(b) Customer Premises Equipment; and consists of hardware, software and materials used in the transport and/or termination/storage of data and voice transmission. "Detailed Description(s)" means the terms and conditions of the Solution provided by QCC which are posted at www.QwestSelectAdvantage.com. "Products"means CPE and Software offerings from QCC. "Purchase Order"or"PO"means either(a)a written document Issued by Customer for the procurement of Solutions from QCC;or(b)a QCC quote or service order signed by Customer. "Services" means offerings from QCC that (a) install, maintain or manage CPE; or (b) support Customer network management objectives. "Software"means software license offerings. "SOW" means a statement of work that provides specific details, agreed to by QCC and Customer, relating to the Solution purchased under a PO or the SOW. Agreement on the terms of the SOW will be satisfied by QCC sending the final version of the SOW to Customer;and Customer's signature on the SOW. "Change Order"means any change, submitted by Customer to QCC or QCC to Customer,to a SOW that was previously agreed upon by QCC and Customer. Customer will be responsible for all charges related to such SOW Change Order. 2. Qwest Select Advantage Solutions. 2.1 Purchase. Customer may purchase Solutions by issuing a PO to QCC,or executing a SOW. Customer's purchase of Solutions is subject to and controlled by Detailed Description(s)which are posted at www.QwestSelectAdvantage.com, and are incorporated by this reference. By issuing a PO to QCC, Customer warrants that Customer has read and agrees to the terms and conditions of the Detailed Description(s). QCC reserves the right to amend the Detailed Description(s) effective upon posting to the Web site. Customer's continued use of the Solution constitutes acceptance of those changes. If the PO issued by Customer contains any preprinted terms, the preprinted terms will not amend, modify or supplement this Service Exhibit in any way whatsoever, notwithstanding any provisions in a PO to the contrary. Any PO or SOW must(a)reference and incorporate this Service Exhibit and its Effective Date, (b) contain the Customer's exact legal name,and (c)include any other requirements as may be further described in the Detailed Description(s). 2.2 Limitation of Liability. Customer will defend, indemnify and hold harmless Qwest; its affiliates, officers, directors, agents,and employees from demands, obligations, causes of action, lawsuits and all third-party claims (including reasonable attorneys' fees) for bodily injury or damage to tangible property arising out of the Customer's negligence or willful misconduct in connection with the Agreement. This provision shall survive the termination,expiration,or cancellation of the Agreement to the greatest extent permitted by law. QCC'S TOTAL AGGREGATE LIABILITY, UNLESS OTHERWISE STATED IN THE DETAILED DESCRIPTIONS OR SOW, ARISING FROM OR RELATED TO THIS SERVICE EXHIBIT WILL IN NO EVENT EXCEED: (A) FOR CLAIMS ARISING OUT OF PRODUCTS/MATERIALS, 10% OF THOSE PRODUCTS/MATERIALS SET FORTH IN THE PO RELATING SOLELY TO THE AFFECTED PRODUCT/MATERIAL; (B) FOR CLAIMS ARISING OUT OF NONRECURRING SERVICES, 10%OF THE SERVICE SET FORTH IN THE PO OR SOW; AND (C) FOR CLAIMS ARISING OUT OF RECURRING SERVICES, ONE MONTH'S SERVICE CHARGE FOR THE AFFECTED COMPONENT. 3. Term; Termination. This Service Exhibit will commence on the Effective Date of the Agreement (or, if applicable, an amendment to the Agreement if this Service Exhibit is added to the Agreement after its Effective Date), and will remain in effect until canceled by either party upon 30 days prior written notice to the other party,or as otherwise stated in the SOW. If Service Is terminated for any reason other than Cause, Service may be subject Termination Charges as set forth in the Detailed Descriptions or SOW. Termination will not affect obligations under Purchase Orders accepted prior to the effective date of termination,and this Service Exhibit will remain in effect as to such obligations in the event it would otherwise have terminated. 4. Charges. Charges for Solutions will be specified in each PO or SOW and are due and payable upon Customer's receipt of the invoice or as otherwise stated in the PO or SOW. Any payment not received within 30 days after the invoice date may be subject to interest charges as permitted by applicable law. Solutions are not entitled to the QTA Discount. Customer will not be eligible for any discounts or promotional offers other than those specifically set forth in an executed PO. Page 1 Copyright©2007 Qwest. All Rights Reserved CONFIDENTIAL v1.100107 QWEST®SELECT ADVANTAGETm DETAILED DESCRIPTION PROCUREMENT W/SYSTEM WARRANTY This Qwest Select Advantage Detailed Description ("Detailed Description") is made a part of, and is subject in all respects to, the agreement by and between Qwest Communications Corporation("QCC")and Customer under which Customer is purchasing Products and Services("Solutions")from QCC ("Agreement),and governs the Solutions defined herein. 1. Definitions. Capitalized terms not defined herein are defined in the Agreement. "Acceptance"means Customer agrees that QCC has delivered the Solution as defined herein,that it operates materially in accordance with the manufacturer's specifications,and that Customer will fulfill its obligation for payment of Solution. "Advance Replacement" or "AR" means QCC will provide Customer with a replacement part in advance of Customer returning the defective part for repair or replacement. "Center"means the QCC Customer Service Center(Center)reachable at 800-421-2271. "Inventory Integrity"means that QCC is the Customer's Nortel or Avaya channel partner of record for Product and all CPE identical to Product is either under warranty support from QCC or covered by QCC maintenance service. "Lease"means a separate agreement with Qwest Technology Finance used to finance Product. "Product"means Nortel,Avaya and/or AVST voice,contact center or messaging systems. "Restocking Fees"are 15%of the cost of the Product. "Return and Repair Service" means Customer will return Product to QCC and Product manufacturer will repair Customer's defective Product "Return and Replace Service' means Customer will return Product to QCC and Product manufacturer will replace Product with the same or similar Product that is functionally equivalent in terms of features,function,fit and compatibility. "Return Material Authorization" or"RMA"means authorization from QCC or Product manufacturer to return Product. 2. Purchasing. Customer's PO must include a CPE quote containing (a) quantities, (b) manufacturer part numbers, (c) descriptions, and (d) unit prices. All sales are final, except as provided by Product manufacturer. QCC only permits the return of unopened products due to QCC error or product manufacturer shipping or ordering error. Other returns are subject to QCC RMA Policies. 3. Software. Software will be licensed or sublicensed to Customer according to the licensing agreement accompanying such software. If the software is not accompanied by a license, QCC grants personal, nonexclusive, limited sublicense to Customer to use copies of the software in object code form only. The license is effective upon shipment,and extends only to the Customer's own use of such software and only on or with the designated Product, Software must be held in confidence and may not be reproduced unless specifically authorized by the software licensor. 4. Title,Invoicing and Security Interest. Ownership and all risk of loss of Product will transfer to Customer upon delivery, except damage caused by QCC, its agents or subcontractors. QCC will Invoice Customer for such Product upon delivery confirmation. Until Customer pays QCC in full for any Product, Customer(a) grants to QCC a continuing security interest in such Product, including additions, replacements and proceeds, (b) authorizes QCC to file a financing statement with or without Customer's signature, and (0) will not transfer the Product or change its name or organizational status except upon at least 30 days prior written notice to QCC. 5. Lease Option. Customer may lease and pay for the Product pursuant to a separate lease agreement with Qwest Technology Finance and obtain Qwest Technology Finance credit approval. QCC will provide the Product to Customer and receive payment for the Product from Qwest Technology Finance. If Customer fails to execute such Lease or comply with the Lease, including without limitation, any requirements for final acceptance of the Product,which results in Qwest Finance Technology's refusal to pay QCC in full for the Product, Customer agrees to pay QCC in full for the Product Until QCC is paid in full for the Product, Customer will at its own expense,keep the Product free and clear of any claims,liens,and encumbrances of any kind. 6. Acceptance. Customer agrees that QCC has delivered the Solution herein when either; (a) the Product ships from the manufacturer where QCC does not install the Product; or(b) the Product is delivered to Customer where QCC installs the Product. Customer will notify QCC in writing of any portion of Product that does not operate materially in accordance with the manufacturer's specifications. Failure to notify QCC within 10 days of actual delivery date constitutes final Acceptance. QCC has the right to cure any portion of the Product that has been rejected. Any portion that is not rejected and which is functionally divisible may be invoiced separately. 7. Product Warranties. QCC will pass-through and assign to Customer all applicable warranties provided by the manufacturer of the applicable Product to the Customer. All Products purchased from QCC, including any Product that is part of a system previously purchased from and installed by QCC which is still under warranty, are subject to the terms and conditions set forth in the manufacturer's warranty, end-user license or agreement applicable to the Product, with no warranty of any kind from QCC. Cisco's end-user license agreement ("EULA") may be viewed at http'/Iwww.cisco.com/en/USioroducts/prod warranties ltem09186a008025c927.html. Qwest disclaims any liability for loss, damage or injury to any party as a result of any defects,latent or otherwise, in any Product. QCC is not (a) a manufacturer of any Product; (b) a party to any agreement between Customer and a Product manufacturer for services provided directly by the Product manufacturer to Customer(e.g., maintenance and extended warranty services); and(c)bound by or liable for any representation,warranty,or promise made by a Product manufacturer. Page 1 Copyright®Qwest.All Rights Reserved. CONFIDENTIAL v1.081108 QWESTO SELECT ADVANTAGE""'DETAILED DESCRIPTION PROCUREMENT W/SYSTEM WARRANTY 8. Warranty Claim Support. All Customer warranty claims will be supported through Center's then-current RMA processes. All warranty coverage periods start on the date the Product is shipped from the manufacturer unless manufacturer warranty card included with Product states otherwise. QCC will provide at no-charge to the customer, manufacturer warranty claim support for 90 days after the equipment is shipped from the manufacturer. After that period, a $250.00 charge per case/trouble ticket will apply. This charge excludes labor associated with trouble isolation if such assistance is required or requested. Warranty claim support is provided at the discretion of QCC and is subject to change without notice. UNDER NO CIRCUMSTANCE WILL QCC'S SUPPORT OF ANY CUSTOMER WARRANTY CLAIM EXCEED THE SUPPORT, POLICIES, OR PROCESSES EXTENDED TO QCC BY PRODUCT MANUFACTURER. 9. Software Media Replacement. Under this Detailed Description, QCC Software warranty support of is limited to replacement of CD,tapes and other media prior to Acceptance. 10. Inventory Integrity. To receive warranty support from QCC, Customer agrees to maintain Inventory Integrity. QCC reserves the right to deny warranty support if Customer fails to maintain Inventory Integrity. QCC may request Customer to provide documentation demonstrating Inventory Integrity. 11. Warranty Parts. Defective warranty parts are replaced either by: (a) Return and Repair Service; or (b) Return and Replace Service. Repaired Product should be returned to Customer within 30 days, but QCC makes no guarantee. Replacement parts are covered for the remaining period of the warranty for the product. QCC owns all defective parts returned in exchange for AR except those QCC chooses to return to Customer. Customer should assume QCC holds no replacement parts for warranty claims. 12. Return Material Authorization Charges. QCC will charge Customer$250.00 per RMA request. The RMA charge is waived when: (a) Product is returned during the first 90 days of the QCC warranty claim support period; (b) Product is returned under a maintenance contract;(c)Product is returned for credit, or(d)Product is returned without credit. 13. Return Material Authorization Policies. 13.1 Product may be returned under the following conditions: (a) Product returned under a maintenance contract: Defective Product must be returned to QCC within 10 days of receipt of replacement Product. QCC RESERVES THE RIGHT TO INVOICE FOR NON-RETURNED PRODUCT AT THEN-CURRENT LIST PRICE. Customer may request an extension of timeframe by contacting the Center. QCC may not unreasonably withhold its consent for extension QCC will not provide warranty claim support if QCC has not received payment for Product. (b) Product returned for warranty replacement: QCC provides warranty claim support only for Products purchased through QCC. Defective Product must be received by QCC within 10 days of RMA creation. Products must be returned using the issued RMA number.Customer is responsible for all return shipping costs QCC reserves the right to cancel RMA request if defective Product is not received with 10 days of RMA creation. (c) Product returned for out-of-warranty replacement. QCC provides out-of-warranty replacement support only for Products purchased through QCC. QCC will not provide warranty claim support if QCC has not received payment for Product Defective Product must be returned to QCC within 10 days of RMA creation. Products must be returned using the issued RMA number Customer is responsible for all return shipping costs QCC reserves the right to cancel RMA request if defective Product is not received with 10 days of RMA creation. QCC will not initiate the RMA process with Product manufacturer until Customer issues a PO to QCC. PO must be authorized to cover$250.00 RMA charge and cost of replacement Product. (d) Product returned for credit Customer must contact QCC sales representative for credit approval prior to initiating RMA process with Center. Product must be returned to QCC within 10 days of RMA creation. Customer may request an extension of this timeframe by contacting the Center. QCC consent to timeframe extension may be contingent on Product manufacturer restrictions but will otherwise not be unreasonably withheld. Returned Product must be new, unused, in original packaging, and otherwise fit for resale. ANY PRODUCT RETURNED USED, UNSUITABLE FOR RESALE, OR REJECTED BY PRODUCT MANUFACTURER IS SUBJECT TO INVOICE AT THE THEN-CURRENT LIST PRICE. Customer is responsible for all return shipping and restocking costs. (e) Product returned without credit: Product must be returned to QCC within 10 days of RMA creation. Customer may request an extension of this timeframe by contacting the Center. QCC consent to timeframe extension may be contingent on Product manufacturer restrictions but will otherwise not be unreasonably withheld. QCC reserves the right to invoice for non-returned product at the then-current list price or cancel RMA as applicable. Customer is responsible for all return shipping and restocking costs. 13.2 Customer must contact the Center to initiate the RMA process. The Center will provide Customer the then-current RMA process for Product. While the specific Product RMA processes may vary, generally, Customer is required to reuse the original package material to return Product,pad the Product with foam or paper for protection,and write the RMA number on the outside of the shipping box. RMA process and policies do not cover: (a) Products missing serial numbers or other identification required by the manufacturer, (b) Product failure due to manufacturer excluded causes such as accident, abuse, misuse or improper maintenance, or(c) Product failure due to non-compliance of electrical or environmental requirements. 14. Advance Replacement Charges. If manufacturer of Product offers an AR service and Customer requests AR for defective Product,QCC will facilitate the AR and charge Customer$500.00 per AR. AR utilizes QCC RMA processes. A PO must be authorized to cover$500.00 AR charge and cost of replacement Product. Customer is also responsible for all services charged by the Product Page 2 Copyright 0 Qwest.All Rights Reserved. CONFIDENTIAL v1.081108 QWESTO SELECT ADVANTAGETM DETAILED DESCRIPTION PROCUREMENT W/SYSTEM WARRANTY manufacturer for AR service. QCC provides no warranty on manufacturer AR services. Customer will only be charged for replacement Product if Customer fails to return Product as outlined in RMA Policies. 15. Expedites. If Customer requests an expedited delivery of Product, and QCC can and chooses to comply with the request, the following charges will apply. (a) a $500.00 expedite request charge; (b) a $50.00 per expedited item charge; and (c) all shipping charges. 16. Export QCC is prohibited by Product manufacturer from selling Product that will be exported. Therefore, Customer agrees not to export Product. 17. Trade-In. If Customer trades in any equipment through QCC under any CPE provider terms, Customer will indemnify and hold QCC harmless from any liabilities,including charges imposed on QCC,arising from Customer's failure to comply with such terms. 18. Termination Charges. If, prior to the conclusion of the Term, any PO accepted hereunder by QCC is terminated either by Customer for any reason other than Cause or by QCC for Cause, Customer will pay all accrued and unpaid charges for Service provided through the effective date of such termination plus Restocking Fees. Restocking Fees are waived if Customer and QCC agree to a new PO and/or agreement with a value equal to,or greater than,the balance of the terminated PO and specifically designed to offset the terminated PO. 19. Misuse. QCC may provide information relative to Product operation and features, and recommendations for protecting Product against fraud,malice, and unauthorized access, however, Customer is solely responsible for the security of its own Product, QCC and its affiliates and subcontractors are not responsible for damages relating to unauthorized access,fraud, or other misuse of Customer's Product. Page 3 Copyright©Qwest.All Rights Reserved. CONFIDENTIAL v1.061108 QWESTO SELECT ADVANTAGET°"DETAILED DESCRIPTION PRO SERIES-INTEGRATION This Qwest Select Advantage Detailed Description ("Detailed Description") is made a part of, and is subject in all respects to, the agreement by and between Qwest Communications Corporation("QCC")and Customer under which Customer is purchasing Products and Services("Solutions")from QCC("Agreement"),and governs the Solutions defined herein. 1. Definitions. Capitalized terms not defined herein are defined in the Agreement. "Acceptance"means Customer agrees that QCC has provided the Solution as defined herein and that Customer will fulfill its obligation for payment of Solution. "Best Effort Network" means any private or public network that can not sustain Quality of Service(QoS)for time sensitive traffic from one end point to another. "Hazardous Substance"means a substance regulated by any Safety Regulation and includes,but is not limited to,asbestos. "In-Service Date"means the date on which QCC has materially performed its obligation contained herein. "Lease"means a separate agreement with Qwest Technology Finance used to finance Service. "Service"means the physical placement and the input of basic configuration(as required)to establish basic functionality of Product. 'Safety Regulations'means all applicable health, safety and environmental laws, rules and regulations, including Occupational Safety and Health Administration's and the Environmental Protection Agency's rules and regulations. 2. Purchasing. Customer's PO must include a CPE quote containing (a) quantities, (b) manufacturer part numbers, (c) descriptions, and (d) unit prices; and (e) Service quote. To the extent that QCC provides installation or labor herein, Customer will provide access to QCC and/or its applicable Affiliates,subcontractors and vendors performing such work. 3. Lease Option. Customer may pay for Service pursuant to a Lease. QCC will provide the Service to Customer and receive payment for the Service from Qwest Technology Finance. If Customer fails to execute such Lease or comply with Lease, including without limitation, any requirements for Acceptance of Service,which results in Qwest Finance Technology's refusal to pay QCC in full for Service,Customer agrees to pay QCC in full for Service. 4. Acceptance. QCC will make reasonable efforts to provide the Service and,when applicable, the labor necessary to complete QCCs obligation by the specified In-Service Date. QCC will notify Customer when Service is complete. Customer must notify QCC in writing of any portion which is unacceptable. Failure to notify QCC within 10 days of In-Service Date constitutes Acceptance QCC has the right to cure any portion of the Service that has been rejected. Any portion that is not rejected and which is functionally divisible may be invoiced separately. 5. Progress Billing. QCC will institute payment terms appropriate for each PO that: (a) exceeds $500,000.00; (b)exceeds 120 calendar days when calculated from the order acceptance to the In-Service Date;or(c)for portions completed and not rejected that are functionally and/or geographically divisible. S. Termination Charges. If prior to the conclusion of the Term, any PO accepted hereunder by QCC are terminated either by Customer for any reason other than Cause, or by QCC for Cause, Customer will pay all accrued and unpaid charges for Service provided through the effective date of such termination. 7. Good Faith Estimate. QCC quote for Service is a"Good Faith Estimate"of the labor required. QCC reserves the right to bill for additional labor; (a)due to adjustments made by, or labor overruns or delays due to, Customer or(b)factors outside of QCC control Including Product performance issues. Such adjustments will be billed at QCC's current labor rates. 8. Additional Labor. In the event QCC spends time isolating problems to equipment, software or LANNVAN elements, or in any other way assists Customer with Product implementation beyond what is set forth in this Detailed Description, Customer will pay QCC for such effort at then-current labor rates. 9. Service Scheduling. Installations are performed from 8.00 a.m. to 5:00 p.m. local time, Monday through Friday, excluding locally observed holidays. Installation scheduling consideration include: • Fourteen calendar day advance notice is required for all installations. • Installation pricing is based upon activity during normal business hours. • After hours installations will be increased by 30%. • QCC will contact Customer prior to installation to confirm hardware delivery/arrival and site readiness. 10. Rescheduling Fees. Customer must reschedule at least 4 days prior to scheduled installation to avoid rescheduling fee. QCC will charge Customer a$300.00 fee if Service is cancelled one to three business days prior to scheduled installation. QCC will charge Customer the full installation charges or$500.00,whichever is less,if Service is cancelled on scheduled Service delivery day. Page 1 Copyright m 2007 Qwest.All Rights Reserved. CONFIDENTIAL v1.111207 QWESTO SELECT ADVANTAGEW DETAILED DESCRIPTION PRO SERIES-INTEGRATION 11. Service Expedites. If Customer requests an expedited installation,and QCC can and chooses to, comply with the request,the following increases to the standard installation charges will apply: Re ue tedIn-Service at Within Increase 15 calendar days of PO receipt 25% 8 calendar days of PO receipt 50% 5 calendar days of PO receipt 75% 3 or fewer calendar days of PO receipt 100% 12. QCC Responsibilities. If necessary, QCC will develop a SOW, agreed to by QCC and Customer as set forth in the Agreement, to provide specific details relating to the Solution purchased under a PO 13. Customer Responsibilities. Customer is responsible for meeting all physical and environmental site standards and requirements of the Product manufacturer and of QCC for installation and/or operation, as appropriate, of Product installed or serviced by QCC under this Detailed Description. If an SOW is agreed to between the parties and Customer subsequently submits a change to the SOW,Customer will be responsible for all charges related to such SOW Change Order. 14. Service Exclusions. QCC assumes no responsibility for the operation of data, radio control, paging, alarm or other circuits, which are not modified or installed by QCC, Additionally,unless otherwise agreed to by both parties in a SOW, QCC will not gather or input End User station database or routing and addressing information. Other exclusions include: • CPE hardware and software not purchased through QCC • Problems caused by integration with non-QCC provided hardware or software • Problems associated with Operating Systems not provided by QCC • Product failure due to manufacturer excluded causes such as accident,abuse or misuse • Usage not in accordance to Product description • Failure of end-users to follow proper operating procedures • Servicing not authorized by QCC • Minor and major upgrades of software(maintenance patches for the purchased software are included) 15. Voice over Internet Protocol (VoIP) Quality Exclusion. QCC may perform tasks to maintain QoS for VoIP, on behalf of Customer. Nevertheless,QCC makes no warranty on the quality of voice/video transmissions over private or public IP network in this Detailed Description. Further, QCC does not recommend VoIP deployments over a Best Effort Network. Customer acknowledges that quality issues relative to voice/video transmission may occur on a Best Effort Network. Issues, such as jitter, echo, and dropped calls may occur with varied degrees of frequency depending on network use and latency. Trouble reports that have been isolated and diagnosed as intermittent QoS issues will be billable to Customer at then-current time and material rates. 16. Service Warranty. QCC warrants that Service will: (a) be provided in a professional manner in accordance with QCC's standard procedures, (b) be performed by appropriately knowledgeable and skilled personnel, and (c) conform to the standards generally observed in the industry for similar services. Service may be provided by QCC or by third parties designated by QCC. 17. Exclusive Remedy. For any breach in Service, Customer's exclusive remedy, and QCC's entire ffabdity, will be the re- performance of Service. If QCC is unable to re-perform the Service as warranted, Customer will be entitled to recover the fees paid to QCC for Service. 18. Safety Compliance. QCC and Customer will adhere to all Safety Regulations. QCC will not work in any area where a Hazardous Substance is present QCC may work in an area containing non-friable asbestos if QCC determines, in its sole judgment, that the work will not disturb or cause the asbestos to become friable. Customer is responsible for informing QCC of the existence, location and condition of any Hazardous Substances that may be in or around the QCC work area. Customer will indemnify and hold QCC harmless from any fines or other liabilities of QCC arising from Customer's failure to inform QCC of Hazardous Substances. Additionally, QCC may suspend work from the time it reasonably identifies areas where Hazardous Substances may be present until the work area is in compliance with all Safety Regulations. Any such suspension is not a default of the Agreement, and any delays from the suspension may result In a similar delay in work completion, without penalty to QCC If the parties cannot agree whether QCCs work can be performed through completion without a violation of Safety Regulations, or cannot agree to payment of added costs, if any,either party may terminate the Agreement without penalty. Such termination will not affect Customer's obligation to pay for Service provided by QCC prior to the effective date of termination. Page 2 Copyright®2007 Qwest.All Rights Reserved. CONFIDENTIAL v1.111207 ent Kent•EveMs Center Nortel Media Gateway 1000B Qty' Description Price Extehded Price City Nail PBX Additions NTDU41FC 2 Media Card 32 Port-IPL 4.5 $ 2,907.36 $ 5,814.72 NTE968EA 7 Convert 8 Analog to 8 IP $ 691.20 $ 4,838.40 NTE968FA 7 Convert 8 Digital to 8 IP $ 691.20 $ 4,833.40 NTE980JA 30 SIP Access Port License $ 87.48 $ 2,624.40 Events Center NTDU22DE 1 MG1000B 0-I1ne 0-Trunk Rls 4.6 $ 3,711.96 $ 3,711,96 NT8D09CAE5 4 Ext.Analogue MW Line Card $ 1,634.04 $ 6,536.16 NTSD14CB 2 Card 8 Port UXT $ 1,829.62 $ 3,659.04 NTDU23AC 1 MG 1000 Chassis Expander $ 928.80 $ 928.80 NTDU41FC 1 Media Card 32 Port-IPL 4,5 $ 2,907.36 $ 2,907.36 NTE95006 1 SW Pkg 57-BARS-BASIC Alternate $ - $ - NTM487CA 8 MG 1000E 8 Analog User Lic $ 680.40 $ 6,443.20 NTTK14ABES 3 PWR Cord 9.9ft 11CM 125VA $ 16.20 $ 48.60 Parts $41,351.04 Labor :$17,480.00 Install Price 58,831.04 Notes and Assumptions:Qwest assumes all cable plant is installed and meets or exceeds category-5 standards. Qwest assumes all switch ports supporting VolP devices are PoE(802 3 AF)compliant and QoS capable. The City of Kent shall be responsible for providing QoS enabled and configured network services for Vol devices and trunks. Should the City of Kent wish Qwest to provide QoS configuration,that service is available at additional labor charge. Qwest will place and test up to 100 customer provided IP sets as part of this proposal. City of Kent will provide category-5 or higher patch cords for devices in accordance with the City's cabling color schema. This Quote issued by Qwest Communications Corporation(QCC) is accepted by the City of Kent Name Title: ✓ filire, Y Date: