HomeMy WebLinkAboutEverstream GLC Holding Co/ICS/$8,520/Fiber Internet Services and Voice;_Addendum_to_Enterprise_Master Services AgreementCzTfshfzHsfdivlijobu22;15bn-Kvm18-3133
DocuSign Envelope ID: 9E924DDF-D104-48BB-A216-96A773A6C2F9
and does not knowingly employ unauthorized aliens. In support of the Affidavit, Vendor shall provide the City
with documentation indicating that it has enrolled and is participating in the E-Verify program. Should Vendor
subcontract for the performance of any work under and pursuant to this Agreement, it shall fully comply with
the Indiana E-Verify Law as regards each such sub-contractor. Should the Vendor or any sub-contractor
violate the Indiana E-Verify law, the City may require a cure of such violation and thereafter, if no timely cure
is performed, terminate this Agreement in accordance with either the provisions hereof or those set forth in
the Indiana E-Verify Law. The requirements of this paragraph shall not apply should the E-Verify program
cease to exist.
8.PAYMENT TERMS:
Upon receipt of the invoice as outlined in the Agreement, the City shall pay Vendor for such goods and
services within thirty-five (35) days after the date of Vendor's invoice detailing same, so long
as and to the extent such goods and services are not disputed, are in conformance with the specifications set
forth in the Agreement and Vendor has otherwise performed and satisfied all the terms and conditions of this
Addendum and the Agreement. All payment and any late payments fees shall be pursuant to Indiana Prompt
Payment Statute; Ind. Code 5-17-5- et al.
9.NON-APPROPRIATION:
In the event no funds are appropriated for the Agreement or its renewal in 2022 through 2023
budgets or any subsequent budgets
to Vendor, has the right to terminate the Agreement at the end of each fiscal year without penalties
of any sort.
10.REQUIRED DISCLOSURE:
In addition to any exceptions to disclosing of Confidential Information listed in Section 10 of the Agreement,
the City, upon consulting and providing notice to Vendor, may disclose such Confidential Information if such
disclosure is required by any federal or state law. The City shall not disclose any information that would be
deemed proprietary or constitute a trade secret unless ordered so by a court of competent jurisdiction.
11. DEFAULT:
In the event Vendor: (a) repudiates, breaches or defaults under any of the terms or conditions of this
Addendum or the Agreement, including Vendnties; (b) fails to provide the goods and services as
specified in this Addendum and the Agreement; (c) fails to make progress so as to endanger timely and
proper provision of the goods and services and does not correct such failure or breach within five (5)
business days (or such shorter period of time as is commercially reasonable under the circumstances) after
receipt of notice from City specifying such failure or breach; or (d) becomes insolvent, is placed into
receivership, makes a general assignment for the benefit of creditors or dissolves, each such event
constituting an event of default hereunder, City shall have the right to (1) terminate all or any parts of the
Agreement and this Addendum, without liability to Vendor; and (2) exercise all other rights and remedies
available to City at law and/or in equity.
12.CONSULTATION PRIOR TO LEGAL ACTION:
Prior to filing any legal action, Parties agree to have good faith consultations, and each be given an
opportunity to correct any such default as outlined inthis Addendum and the Agreement.
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DocuSign Envelope ID: 9E924DDF-D104-48BB-A216-96A773A6C2F9
IN WITNESS WHEREOF, the parties hereto have made and executed this Agreement as follows:
CITY OF CARMEL, INDIANA EVERSTREAM SOLUTIONS LLC
by and through its Board of Public
Works and Safety
By: By:
James Brainard, Presiding Officer Authorized Signature
Date:
Printed Name
Mary Ann Burke, Member
Date:
Title
Lori S. Watson, Member FID/TIN:
Date:
ATTEST: Date:
Sue Wolfgang, Clerk
Date:
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DocuSign Envelope ID: 9E924DDF-D104-48BB-A216-96A773A6C2F9
7/20/2022
7/20/2022
7/20/2022
7/20/2022
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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 CITY OF CARMEL, Indiana, an Indiana Municipal Corporation, with a place of business at One Civic
Square, Carmel, Indiana 46032 (“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
This Agreement, together with all incorporated terms and conditions (collectively
the “Agreement”), and any associated Service Orders as defined herein, hereby
constitute the Master Services Agreement (“MSA”) by and between Everstream
and Subscriber for the Services specified on the associated Service Orders
Services”). The attachments to this Agreement further describe Everstream’s
Services and are hereby incorporated into and made a part of this Agreement.
2.0 SERVICES AND SERVICE ORDERS
2.1 Subject to the MSA, Everstream shall provide Subscriber with the Services
as detailed in any relative Service Order entered into by the Parties.
Everstream shall use commercially reasonable efforts to provide the
Services seven (7) days a week, twenty-four (24) hours a day, excluding
scheduled maintenance, required repair and events beyond Everstream’s
reasonable control.
2.2 Subscriber shall request Services by issuing to Everstream one or more
proposed Service Order(s) (in the Service Order form provided by
Everstream). Upon Everstream’s acceptance of a proposed Service Order,
the terms and Service included in the Service Order shall be deemed
incorporated into, and made a part of, the MSA. A proposed Service Order
shall not be deemed accepted until the earlier of (a) Everstream’s written
acceptance of such proposed Service Order; or (b) Everstream’s
commencement of delivery of the Service(s) set forth in such proposed
Service Order.
2.3 Invoicing of Service(s) shall begin with Everstream’s issuance of a
Certificate of Acceptance (“COFA”) following installation as contemplated
by a Service Order. The delivered Service(s) will be considered accepted by
Subscriber and certified to be error free and built to the specifications
requested unless Subscriber provides written notice and a detailed
description of any claimed shortcoming(s) within five (5) days of receiving
the COFA.
3.0 SERVICE & EQUIPMENT INSTALLATION
3.1 Subscriber shall ensure that each Subscriber employee, customer, or user,
which uses the Service (each, an “End User”), shall obtain and maintain
throughout the Term, such consents (including without limitation landlord
and land owner consents) as are necessary to timely permit, and shall
timely permit, Everstream personnel to install, deliver, operate and
maintain the Services and Everstream Equipment (as defined herein) at
Subscriber's and any Subscriber End User’s facilities. Subscriber shall
permit Everstream reasonable access to the Subscriber and End User
facilities as needed to install, configure, upgrade, maintain or remove the
Everstream Equipment and other Service components collocated at
Subscriber's or an End User’s facilities. Subscriber shall make and maintain
throughout the Term all reasonable preparations necessary to permit the
installation, maintenance and operation of the Service and any Everstream
Equipment as specified by Everstream and that is required to provide the
Services. Subscriber shall not charge Everstream, and shall ensure that
Everstream does not incur, any fees or expenses whatsoever in connection
with Subscriber’s provision of space, power, or access in areas under the
control of Subscriber (whether as owner or tenant) or otherwise in
connection with Subscriber’s performance of its obligations pursuant to
this MSA; and shall be solely responsible for any such fees or expenses
charged by a Subscriber End User.
3.2 Provided that Subscriber properly performs all necessary Site preparation
and provides Everstream with all required consents, Everstream shall use
commercially reasonable efforts to install the Service in accordance with
the latter of the service start date requested on a Service Order or the Firm
Order Commitment (“FOC”) date provided to Subscriber by Everstream.
Everstream shall provide Subscriber with a Completion Notice
Completion Notice”) upon completion of the installation of a Service.
4.0 SUPPORT & MAINTENANCE
Everstream shall use commercially reasonable efforts to maintain the all
Everstream owned equipment, including as applicable, any cabling, conduit, risers,
routers, or any related equipment (collectively, “Everstream Equipment”), on
Everstream’s side of the demarcation points used by Everstream to provide the
Service. Everstream Equipment and Services on Subscriber’s side of the
demarcation points, as well as any other Subscriber-provided equipment, are the
responsibility of Subscriber. Everstream shall provide a toll-free telephone
number and email address to its Network Operations Center (“NOC”) for inquiries
and remote problem support for the Service. All such Subscriber support shall be
provided only to Subscriber’s designated personnel (“Named Callers”), as mutually
agreed upon by Everstream and Subscriber. Subscriber is responsible for all
communications and interfaces with its End Users. In no event shall Everstream
be responsible for providing support for any network, equipment or software not
provided and installed by Everstream or for issues or problems beyond its control.
Notwithstanding anything to the contrary in the foregoing, Everstream shall use
commercially reasonable efforts to restore any fiber cable cuts on the Everstream
network and shall keep Subscriber reasonably advised of such restoration
progress. Subscriber shall provide routine operational Service support for
Everstream Equipment and Service components collocated at Subscriber's or an
End User’s facility, including without limitation by performing reboots, as
requested by Everstream.
5.0 DESCRIPTION OF BASIC SERVICES
5.1 The Services provided by Everstream to Subscriber are:
a) Design and Installation. Assistance in the design, selection and
installation of the connection between the Subscriber network and the
Everstream Network.
b) Equipment Selection and Acquisition. Purchase, installation,
maintenance and operation of Everstream Network Equipment at the
Subscriber site(s), if required.
c) Maximum Guaranteed Bandwidth. A 1.5 Mbps to 10 Gbps connection
as specified by each Service Order) between the Subscriber site and the
Everstream Network and (if contracted) the Internet. The interface
between this connection and the Subscriber’s router shall consist of a
single-mode or multi-mode fiber or copper 100/1000/10000 Mbps
Ethernet connection, as agreed between the Parties in the Service
Order(s). The connection value contracted for in Service Order
represents the Minimum Guaranteed Bandwidth to be provided by
Everstream.
d) IP Transport between each Subscriber site(s) and: (i) Other Everstream
subscriber site(s) connected to the Everstream Network as identified by
Subscriber and; (ii) Other Everstream Subscriber site(s) and Service as
identified by Subscriber and; (iii) The Internet (if contracted).
1. A bandwidth capped service by which Everstream may cap the
bandwidth available at each Subscriber site to no less than the
maximum of the selected Internet Usage Level from the associated
Service Order. Subscriber may agree to lower bandwidth caps.
2. Everstream calculates Internet Usage for each Subscriber by
separately measuring input and output bandwidth usage at 5-minute
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intervals. The Usage for a Subscriber is the value of the highest
remaining sample after throwing out the top 5% of each category.
The Subscriber’s total Usage is the sum of the Usage for all of
Subscriber’s sites.
5.2 NETWORK OPERATIONS SUPPORT.
a) Network Operations Center. Everstream shall use commercially
reasonable efforts to provide the NOC services seven (7) days a week,
twenty-four (24) hours a day, excluding scheduled maintenance,
required repair and events beyond Everstream’s reasonable control.
Subscriber will use best efforts to comply with reasonable procedures
established from time to time by Everstream to best assure the ability
of Everstream to diagnose, maintain and correct disruptions in network
Services. A detailed description of Everstream’s operations support,
procedures and related matters is available upon request to the NOC.
b) Core NOC Functions. NOC Functions include the following: (i) Open
Service Tickets on all events, alarms and report trouble items; (ii)
Conduct fault investigation and identifications; (iii) Implement network
repair and service restoration, including maintenance and upgrades; (iv)
Provision of remote logical service reconfiguration; (v) Dispatch field
technical service to Subscriber locations as requested; (vi) Monitor and
report on network status and Subscriber connectivity status. (vii) Service
Levels outlined in the tables below:
NETWORK PERFORMANCE SERVICE LEVELS
NETWORK UPTIME Basic Service Level Agreement (“SLA”) Uptime is defined as the amount
of time Subscriber has service as measured over the course of the year.
Planned or Emergency Maintenance events are not factored into the
Service Uptime Calculation. Everstream calculates network uptime during a calendar
month as follows: Availability per month = (total minutes in month) - (total
min of unavailability
in month). SLA Network uptime for managed Ethernet,
MPLS, VPN and Internet
Service Delivery.
99.99% Basic SLA for Fiber Services (
Everstream Indefeasible Rights of Use (“IRU”) and leased fiber
optic Services).
99.90% MEAN TIME TO REPAIR Mean Time to Repair (MTTR) SLA are based upon the
amount of time it takes to restore Services measured from the time a
NOC service request ticket (“Ticket”) is opened to the time the Ticket is closed. MTTR
times vary based on whether the problem being addressed physically resides
on the Everstream Network (“On-Net”) or on a third-
party provider/Subscriber network (“Off-Net”). Everstream
On-Net Services. Four (4) Hrs. Everstream
Off-Net Services. Six (6) Hrs. Fiber Services (Everstream On-
Net Only IRU). Eight (8) Hrs. Note: Force Majeure acts are not covered
under Everstream’s MTTR SLA. Force Majeure includes, without limitation: fire,
flood, lightening, explosion, war, act of terrorism, strike, riots, embargo,
labor dispute, government requirement, civil or military authority, act of God or nature, acts or
failure
to act of
any governmental authority. SERVICE OUTAGE CLASSIFICATIONS Catastrophic An entire network affecting outage
that affects
a
large majority of Everstream subscribers. Critical An outage affecting a
single Everstream subscriber
where service is unavailable for use. Major An outage affecting a
single Everstream subscriber where
service
is intermittent but still usable. Minor An outage affecting
one Everstream subscriber where service is available but service is slow or minor
packet loss; An outage affecting a single Subscriber; service is
available but specific applications are slow or not
operating properly with Subscriber configuration; Proactive troubleshooting to locate an issue before
it becomes
a minor, major, or critical issue. 5.3 SUBSCRIBER CONNECTIONS VIA
THIRD-PARTY. At Subscriber’s written request, Everstream will provide
to Subscriber, pricing for the installation and maintenance of a connection from
an agreed upon Subscriber site to the Everstream Network via a
Third-Party Provider. Subscriber may elect in writing to have Everstream, on
Subscriber’s behalf, be responsible for procuring a connection between
Subscriber’s site and the Everstream Network. Should Subscriber elect in
writing to have Everstream procure a Third-Party connection,
Everstream will oversee the installation and maintenance of that 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
related to network interface planning, engineering, and consulting support in installing
and configuring the Subscriber’s Third-Party connection to the
Everstream Network. Based on the ASSOCIATED Service Order, Subscriber is directly
responsible for the payment of all installation, recurring and non-recurring
charges required to be paid to Everstream or third-parties with
respect to each Subscriber connection to the Everstream Network. Payments for
these Services will be
due when Subscriber orders the connection. 5.4 SUBSCRIBER CONNECTION
VIA FIBER BUILD TO THE EVERSTREAM NETWORK. At Subscriber’s
written request, Everstream will provide to Subscriber, pricing for the installation
and maintenance of a dedicated fiber connection from an agreed
upon Subscriber site to the Everstream Network. Subscriber may elect
in writing to have Everstream, on Subscriber’s behalf, responsible
for procuring a dedicated fiber connection between Subscriber’s site
and the Everstream Network. Should Subscriber elect in writing to have
Everstream procure a dedicated fiber connection, Everstream will oversee
the installation and maintenance of that 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 related to network
interface planning, engineering, and consulting support in installing and configuring the
Subscriber’s dedicated fiber connection to the Everstream Network.
Based on the associated Service Order, Subscriber is directly responsible
for the payment of all installation, recurring and non-recurring charges required
to be paid to Everstream or third parties with respect to
each Subscriber dedicated fiber connection to the Everstream Network. Payments for
these Services will be
due when Subscriber orders the connection. 5.5 OWNERSHIP OF
CONNECTION. Any Connection from the Everstream Network up to the Demarcation
Point becomes part of the Everstream Network upon installation. Subscriber
has no ownership interest in the
connection up to the Demarcation Point 5.6 SERVICE UPGRADES. At any time,
Subscriber may elect in writing to increase the bandwidth of
its connection to the Everstream Network without contract extension or the
number of Subscriber sites connected to the Everstream Network. As part
of any such Service Upgrade, Subscriber will use its best efforts to
cooperate with Everstream in coordinating the engineering, installation, testing and
production use of the new connection except as provided elsewhere in
this Agreement. If the Service Upgrade
imposes different requirements for environmental conditions, supplemental Equipment or similar
items, Subscriber will have the option to comply with those requirements
and acquire (either directly or through Everstream) the necessary Equipment and pay
any and all fees due under the associated Service Order,
continue the Agreement according to the original Terms,
or terminate the associated Service Order. 5.7
EQUIPMENT RECOMMENDATION. Subscriber agrees to employ commercially reasonable
efforts to house Everstream-provided Equipment in accordance
to the “Environmental Recommendations” provided by Everstream. This includes the
provisioning of power and space for Equipment needed to operate
connection at
Subscriber site(s) to
Everstream Network. 6.0 SUBSCRIBER OBLIGATIONS 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 of the Master Agreement.
Subscriber shall not resell or redistribute whether for a fee or otherwise) the Service(
s), or any portion thereof, or make any use of the Service other
than for Subscriber’s internal business purposes, unless otherwise
agreed in writing by Everstream. Subscriber shall ensure that its End Users’ use of the
Service, if any, shall comply with all applicable laws and regulations
and Terms of the Master Agreement. Upon reasonable notice to
Subscriber, Everstream may audit Subscriber's DocuSign EnvelopeDocuSign Envelope ID: 9E924DDF-D104-48BB-A216-96A773A6C2F9
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use of the “Service Bandwidth” to ensure Subscriber's compliance with the
terms of the MSA and any related Service Order.
6.2 Subscriber will designate one of Subscriber’s routers/switches from which
Subscriber’s fiber will connect to the Everstream Network.
6.3 Subscriber will provide sufficient space for Everstream to install Equipment
to support the Services. Space will include sufficient power and
environmental conditioning to support Equipment. Subscriber may provide
backup power or an uninterruptable power supply (“UPS”) or may contract
with Everstream separately for UPS.
6.4 Subscriber is responsible for the installation, maintenance, and repair of
Subscriber-premise fiber between the Demarcation Point and the
Subscriber’s switch or router.
6.5 Subscriber will assign an operational and technical contact person to
coordinate with Everstream regarding Services being provided under this
Agreement.
6.6 Subscriber shall ensure that all Everstream Equipment at Subscriber’s and
Subscriber’s End Users’ facilities remains free and clear of all liens and
encumbrances, and Subscriber shall be responsible for loss or damage to
the Everstream Equipment while at Subscriber's or an End User’s facilities.
Subscriber is responsible for ensuring that any Subscriber equipment used
in connection with the Services is protected from fraudulent or
unauthorized access. In addition, Subscriber is responsible for: (a) all
content that is viewed, stored, or transmitted via the Service; and (b) all
third-party charges incurred for merchandise and Services accessed via the
Service, if any. Subscriber shall conform its equipment and software, and
ensure that each End User conforms its equipment and software, to the
technical specifications for the Service provided by Everstream.
7.0 TERM
The MSA shall commence upon the earlier of (a) the date of the last
signature on the Service Order (“Effective Date”) or (b) Everstream’s
commencement of delivery of the Service(s) set forth in a Service Order. The
MSA shall remain in effect for the Term specified in each associated Service
Order, or if no Term is specified, until the expiration or Termination of all
Service Orders (the “Term”). The Term for the applicable Service shall be set
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
in the Service Order, if the Subscriber continues to receive Services after the
expiration of the Initial Order Term, the Services shall renew for a period of
twelve (12) months on the same Agreement (“Renewal Order Term”,
collectively with Initial Order Term, “Order Term”). Subscriber also has the
right to notify Everstream in writing, ninety (90) days prior to the expiration
of the Initial Order Term their intent to exercise their right to a month to
month agreement at then Current Everstream rates for their Service(s)
without any discounts.
8.0 PAYMENT
8.1 For each Service, Subscriber shall pay Everstream all recurring and non-
recurring charges, fees and taxes, (collectively the “Service Charges”) as set
forth in the associated Service Order, in accordance with the following
payment Terms: Service Charges shall be billed to Subscriber on a monthly
basis commencing upon Service installation, and are payable within thirty
30) days after the date appearing on the invoice. All payments hereunder
will be in U.S. dollars by electronic wire transfer to the bank account
designated by Everstream from time to time or by company check.
Subscriber must bring any billing error to Everstream’s attention within
forty-five (45) days after the date appearing on the applicable invoice or
Subscriber waives its right to a refund or credit associated with such billing
error. Everstream shall not defer any charges while Subscriber awaits
reimbursement, subsidy, discount or credit from any third-party or
government entity, and Subscriber shall have the obligation to pay all
charges regardless of the status of any such reimbursement, subsidy,
discount or credit. Everstream shall have the right to increase Service
Charges for each Service after the Initial Order Term for such Service upon
thirty (30) days’ written notice to Subscriber. Everstream may charge a late
fee for any amounts which are not paid when due. The late fee shall be the
greater of one and one-half percent (1.5%) per month or the highest rate
chargeable by law. Subscriber shall also be responsible for all costs,
including reasonable attorneys’ fees associated with collection of past due
amounts. If, at any time, Everstream has concern about security or
timeliness of payments, it may suspend the Services and/or the rights
granted hereunder upon advance written notice to Subscriber until receipt
of payment or establishment of a letter of credit or other arrangement
securing payment. If Everstream fails to present a charge in a timely
manner, such failure shall not constitute a waiver of the charges for the
fees to which it relates, and Subscriber shall pay such invoice which is not
subject to 1.5% late fee, in accordance with these payment terms.
8.2 Billing of a new or additionally added circuit begins upon the issuance of
the respective COFA.
8.3 SERVICE CREDIT. In the event of a Network Outage or disruption that is
caused in whole or in part by the negligence or willful misconduct of
Subscriber, Subscriber shall not be entitled to receive a credit. In all other
cases, excepting maintenance or upgrade Services scheduled with
Subscriber and those pursuant to “Force Majeure,” Subscriber is entitled
to receive a credit against the amount invoiced for Services provided during
the month in which the Network Outage occurred. Credits are available on
a per-outage basis (prorated on a monthly basis) in any given calendar
month. These service credits are the sole remedy available to Subscriber
for service disruption or suspension of any kind whatsoever is described in
the table below:
Instance of Network
Outage
Credit Against
the Appropriate
Month’s Service
1 Hour 0%
1 Hour to < 8 Hours 25%
8 Hours 50%
Network Outage service credit requests shall be submitted electronically or
in writing to Subscriber’s assigned Client Relationship Manager (“CRM”) or
to the attention of the Everstream agent listed below.
9.0 TAXES
9.1 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 MSA, including but not limited to state
and local sales and use taxes, telecommunications taxes, federal and state
universal service fund fees and/or state and local regulatory fees to the
extent applicable.
9.2 Subscriber acknowledges that currently, and from time to time, there is
uncertainty about the regulatory classification and/or treatment of some
of the Services and, consequently, uncertainty about what fees, taxes and
surcharges are due from Everstream and/or its Subscribers. Subscriber
agrees that Everstream has the right to determine, in its sole discretion,
which fees, taxes and surcharges are due and to collect and remit them to
the relevant governmental authorities, and/or to pay and pass them
through to Subscriber. Subscriber hereby waives any claims it may have
regarding Everstream’s collection or remittance of such fees, taxes and
surcharges. Subscriber understands that it may obtain a list of the fees,
taxes and surcharges that Everstream currently collects or passes through
by writing to Everstream at the provided herein.
10.0 PROPRIETARY RIGHTS AND CONFIDENTIALITY
10.1 All materials including, but not limited to, any Everstream Equipment
including related firmware, software, data and information provided by
Everstream, and any know-how, methodologies or processes including, but
not limited to, all copyrights, trademarks, patents, trade secrets, any other
proprietary rights inherent therein and appurtenant thereto, used by
Everstream to provide the Service (collectively “Everstream Materials”)
shall remain the sole and exclusive property of Everstream. Nothing herein
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is intended to convey any right or ownership interest to Subscriber or any
other person or entity in or to such Everstream Materials. Subscriber shall
acquire no interest in the Everstream Materials by virtue of the payments
provided for under the Master Agreement. Subscriber may use the
Everstream Materials solely for Subscriber's use of the Service during any
applicable Order Term and the same may not be transferred by Subscriber
to any other person, corporation or entity except as permitted herein.
Subscriber may not disassemble, decompile, reverse engineer, reproduce,
modify or distribute the Everstream Materials, in whole or in part, or use
them for the benefit of any third Party. All rights in the Everstream
Materials not expressly granted to Subscriber in the MSA are reserved to
Everstream. Subscriber shall not open, alter, misuse, tamper with or
remove the Everstream Equipment and shall not remove any markings or
labels from the Everstream Equipment.
10.2 Subscriber shall maintain in confidence, and not to disclose to third-parties,
or use, except for such use as is expressly permitted in the MSA, the
Everstream Materials and together with any other information or materials
provided by Everstream in connection with the MSA that is identified or
marked as confidential or are otherwise reasonably understood to be
confidential, including but not limited to the content of the MSA.
10.3 If software is provided to Subscriber under the Master Agreement,
Everstream grants Subscriber a limited, non-exclusive and non-transferable
license to use such software, in object code form only, solely for the
purpose of using the Service for Subscriber’s internal business purposes
during the Term.
11.0 EQUIPMENT UPGRADES AND MODIFICATIONS
Everstream maintains the right to upgrade, modify, and enhance the Everstream
Equipment, including related firmware, and the associated Service. Everstream
also maintains the right to take any action that Everstream deems appropriate to
protect the Service and the Everstream Equipment.
12.0 TERMINATION
12.1 Either Party may terminate a Service Order: (a) upon thirty (30) days
written notice to the other Party of the other Party’s material breach of the
MSA or associated Service Order, provided that such material breach is not
cured within such thirty (30) day period; (b) immediately, in the event that
the other Party liquidates, is adjudicated as bankrupt, makes an assignment
for the benefit of creditors, invokes any provision of law for general relief
from its debtors, initiates any proceeding seeking general protection from
its creditors, or is removed or delisted from a trading exchange (individually
a “Bankruptcy Event”); (c) immediately, in the event that, after entering
into a Service Order, Everstream conducts a site survey and learns that the
construction costs shall require a material increase in the Service Charges;
or (d) upon at least ninety (90) days written notice to the other Party before
the end of an Initial Term or Renewal Term. In the event that Subscriber
fails to comply with any applicable laws or regulations or the Terms of the
MSA, upon thirty (30) days’ written notice, Everstream may suspend or
discontinue any applicable Service in whole or in part without further
notice, provided that such failure is not cured within such thirty (30) day
period. In addition, Everstream may immediately terminate or suspend
Subscriber’s use of the Service if such use is determined by Everstream, in
its sole discretion, to be resulting in a material degradation of the
Everstream network, until such time as such degradation has been
remedied.
12.2 Upon the Termination or expiration of the MSA, including all associated
Service Orders: (a) Everstream’s obligations under the MSA shall
immediately cease; (b) Subscriber shall promptly pay all amounts due and
owing to Everstream for Service(s) delivered prior to the date of
Termination or expiration, and any commercially reasonable deinstallation
fees, if any; (c) Subscriber shall promptly cease all use of any software
provided by Everstream under the MSA, and shall return such software to
Everstream; and (d) Subscriber shall return to Everstream or permit
Everstream to remove, in Everstream’s discretion, the Everstream
Equipment in the same condition as when received, ordinary wear and tear
excepted. Subscriber shall reimburse Everstream for the reasonable and
documented costs of the repair or replacement, at Everstream’s discretion,
of any Everstream Equipment not returned in accordance with these terms.
12.3 Notwithstanding anything to the contrary, in the event this MSA or any
associated Service Order terminates for any reason other than as
permitted, Subscriber shall, at Everstream’s discretion: (a) promptly pay
Everstream the full amount of the Service Charges that Subscriber would
have been charged for the remainder of the Initial Term or the then-current
Renewal Term; or (b) reimburse Everstream for all volume, Term or other
discounts and credits provided in anticipation of full performance of
Subscriber’s obligations and any unpaid portion of the installation fee set
forth in the applicable Service Order(s).
12.4 The provisions of Sections 7 - 9, 11 - 15, 17 18, 19, 21 – 23 and 25 of the
MSA and the Attachments shall survive the Termination or expiration of the
MSA.
13.0 INDEMNIFICATION
The Parties agree to mutually defend, indemnify and hold harmless the other
Party, its affiliates, service providers and suppliers as well as the other Party’s
respective officers, directors, employees and agents, from and against any third-
party claims, losses, liabilities, damages, costs and expenses, including reasonable
attorneys’ and other professional fees, arising out of or relating to: (a) the use of
the Service; (b) personal injury or property damage caused by the negligence or
willful misconduct of either Party or its employees or agents.
14.0 DISCLAIMER OF WARRANTY
EXCEPT AS SET FORTH IN SECTION 13, SUBSCRIBER ASSUMES TOTAL
RESPONSIBILITY FOR USE OF THE SERVICE AND USES THE SAME AT ITS OWN RISK.
EVERSTREAM EXERCISES NO CONTROL OVER AND HAS NO RESPONSIBILITY
WHATSOEVER FOR THE CONTENT TRANSMITTED OR ACCESSIBLE THROUGH THE
SERVICE, AND EVERSTREAM EXPRESSLY DISCLAIMS ANY RESPONSIBILITY FOR
SUCH CONTENT. EXCEPT AS SPECIFICALLY SET FORTH IN THE MSA, THE SERVICE,
EVERSTREAM EQUIPMENT, AND EVERSTREAM MATERIALS ARE PROVIDED “AS IS,”
WITHOUT WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING
BUT NOT LIMITED TO, DATA ACCURACY, MERCHANTABILITY OR FITNESS FOR A
PARTICULAR PURPOSE. EXCEPT AS SETFORTH IN THE MSA, NO ADVICE OR
INFORMATION GIVEN BY EVERSTREAM, ITS AFFILIATES OR ITS CONTRACTORS OR
THEIR RESPECTIVE EMPLOYEES SHALL CREATE ANY WARRANTY. EXCEPT AS SET
FORTH IN THE MSA, EVERSTREAM DOES NOT REPRESENT OR WARRANT THAT THE
SERVICE WILL MEET SUBSCRIBER’S REQUIREMENTS, PREVENT UNAUTHORIZED
ACCESS BY THIRD-PARTIES, BE UNINTERRUPTED, SECURE, ERROR FREE, WITHOUT
LOSS OF CONTENT, DATE OR INFORMATION OR THAT ANY MINIMUM
TRANSMISSION SPEED IS GUARANTEED AT ANY TIME. EXCEPT AS SET FORTH IN
THE MSA AND SUBJECT TO ANY SLA, EVERSTREAM DOES NOT WARRANT THAT
ANY SERVICE OR EQUIPMENT PROVIDED BY EVERSTREAM SHALL PERFORM AT A
PARTICULAR SPEED, BANDWIDTH OR THROUGHPUT RATE. IN ADDITION,
SUBSCRIBER ACKNOWLEDGES AND AGREES THAT TRANSMISSIONS OVER THE
SERVICE MAY NOT BE SECURE. SUBSCRIBER FURTHER ACKNOWLEDGES AND
AGREES THAT ANY DATA, MATERIAL OR TRAFFIC OF ANY KIND WHATSOEVER
CARRIED, UPLOADED, DOWNLOADED OR OTHERWISE OBTAINED THROUGH THE
USE OF THE SERVICE IS DONE AT SUBSCRIBER’S OWN DISCRETION AND RISK AND
THAT SUBSCRIBER SHALL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO
SUBSCRIBER’S OR AN END USER’S COMPUTER SYSTEM OR EQUIPMENT
INCLUDING NETWORK EQUIPMENT) OR LOSS OF SUCH DATA, MATERIAL OR
TRAFFIC DURING, OR THAT RESULTS FROM, SUBSCRIBER’S OR ITS END USERS’S
USE OF THE SERVICE INCLUDING, BUT NOT LIMITED TO, SUBSCRIBER’S OR END
USERS’S SENDING OR RECEIVING, OR UPLOADING OR DOWNLOADING, OR
ATTEMPTS TO DO SAME, OF SUCH DATA, MATERIAL OR TRAFFIC.
15.0 LIMITATION OF LIABILITY
15.1 IN NO EVENT SHALL EITHER PARTY BE LIABLE TO THE OTHER PARTY, AN
END USER OR ANY THIRD-PARTY FOR ANY INCIDENTAL, INDIRECT,
CONSEQUENTIAL, SPECIAL OR PUNITIVE DAMAGES ARISING OUT OF OR
RELATING TO THE MASTER AGREEMENT, REGARDLESS OF WHETHER
EITHER PARTY HAD BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
BOTH EVERSTREAM AND SUBSCRIBER’S AGGREGATE LIABILITY FOR ANY
REASON AND ALL CAUSES OF ACTION ARISING OUT OF OR RELATING TO
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THE MSA (INCLUDING, BUT NOT LIMITED TO, CONTRACT, TORT
INCLUDING NEGLIGENCE) AND STRICT PRODUCT LIABILITY) SHALL BE
LIMITED TO THE FEES PAID OR OWED BY SUBSCRIBER UNDER THE SERVICE
ORDER THAT IS THE SUBJECT MATTER OF THE CLAIM IN THE TWELVE (12)
MONTHS PRECEDING THE DATE THE CLAIM ARISES. IN NO EVENT SHALL
EVERSTREAM’S AFFILIATES OR SUPPLIERS HAVE ANY LIABILITY TO
SUBSCRIBER UNDER THE MASTER AGREEMENT. EVERSTREAM SHALL NOT
BE RESPONSIBLE FOR ANY LOSSES OR DAMAGES ARISING AS A RESULT OF
THE UNAVAILABILITY OF THE SERVICE, INCLUDING THE INABILITY TO
REACH EMERGENCY SERVICES, THE INABILITY TO CONTACT A SECURITY
SYSTEM OR REMOTE MEDICAL OR OTHER MONITORING SERVICE
PROVIDER OR ANY FAILURE OR FAULT RELATING TO SUBSCRIBER
EQUIPMENT, FACILITIES OR SERVICES.
15.2 EXCEPT AS OTHERWISE PROVIDED IN THIS MSA, NEITHER EVERSTREAM,
NOR ITS SERVICE SUPPLIERS SHALL BE LIABLE FOR UNAUTHORIZED ACCESS
TO SUBSCRIBER’S TRANSMISSION FACILITIES OR PREMISE EQUIPMENT OR
FOR UNAUTHORIZED ACCESS TO OR ALTERATIONS, THEFT OR
DESTRUCTION OF SUBSCRIBER’S DATA FILES, PROGRAMS, PROCEDURES,
OR INFORMATION THROUGH ACCIDENT, FRAUDULENT MEANS OR
DEVICES, OR ANY OTHER METHOD. SUBSCRIBER UNDERSTANDS THAT
NEITHER EVERSTREAM NOR ITS SERVICE SUPPLIERS ARE RESPONSIBLE FOR
THE CONTENT OF THE TRANSMISSIONS THAT MAY PASS THROUGH THE
EVERSTREAM NETWORK CONNECTION, OR RELATED COMMUNICATION
SERVICES. NEITHER EVERSTREAM NOR ITS SERVICE SUPPLIERS SHALL BE
LIABLE FOR THE ACCURACY OR QUALITY OF INFORMATION OBTAINED OR
DATA TRANSMITTED THROUGH USE OF THE EVERSTREAM NETWORK
CONNECTION, OR RELATED SERVICES.
16.0 FORCE MAJEURE
Notwithstanding anything to the contrary, a Party shall have no liability to the
other due to circumstances beyond its control, including, but not limited to, acts
of God, terrorism, flood, fiber cuts, natural disaster, regulation or governmental
acts, fire, civil disturbance, weather, or any unauthorized access to or destruction
or modification of the Service, in whole or in part (each a “Force Majeure Event”).
17.0 ENTIRE AGREEMENT
The MSA, including without limitation all Attachments, sets forth the entire
agreement between the Parties with respect to the subject matter hereof and
supersedes all previous written or oral agreements or representations between
the Parties with respect to such subject matter.
18.0 ORDER OF PRECEDENCE AND CONFLICTS
Each Service shall be provisioned pursuant an associated Service Order and the
MSA. If documents referred to in this MSA conflict with one another (including
conflicting contract expiration dates), any such conflicts will be rectified in the
following order: (a) Applicable Addendum, Attachment, Service Order; (b) MSA.
19.0 COMPLIANCE WITH LAWS
19.1 As between the Parties, Everstream shall obtain and maintain at its own
expense, all licenses, approvals and regulatory authority required by law
with respect to Everstream’s operation and provision of the Services.
Subscriber shall obtain and maintain at its own expense, all licenses,
approvals and regulatory authority required by law with respect to
Subscriber’s use of the Services as contemplated in the MSA. Unless
specified otherwise in the MSA or associated Service Order, each Party shall
provide all notices, pay all fees and comply with all laws, ordinances, rules
and regulations relating to its performance obligations specified in the
MSA.
19.2 The MSA, including the Attachments and associated Service Order(s), are
subject to all applicable federal, state or local laws and regulations in effect
in the relevant jurisdiction(s) in which Everstream provides the Services. If
any provision of the MSA, the Attachments, or the associated Service
Order(s) contravene or are in conflict with any existing law or regulation,
the terms of such law or regulation shall take priority over the relevant
provision of the MSA, the Attachments, and/or the associated Service
Order(s). If the relevant law or regulation applies to some but not all of the
Service(s) being provided under the MSA, then such law or regulation shall
take priority over the relevant provision of the MSA, the Attachments,
and/or the associated Service Order(s) only for purposes of those Service(s)
to which the law or regulation applies. Except as explicitly stated in the
herein, nothing contained in the MSA shall constitute a waiver by
Everstream of any rights under applicable laws or regulations pertaining to
the installation, operation, maintenance or removal of the Services,
facilities or equipment.
20.0 GOVERNING LAW AND JURISDICTION
This MSA shall be governed by and construed in accordance with applicable U.S.
federal law and the laws of the State of Ohio, without regard to conflict of law
principles. Each Party consents to the exclusive jurisdiction and venue of the U.S.
federal and Ohio state courts located in and serving the City of Cleveland, in
connection with any dispute arising out of or in connection with this Master
Agreement and/or its subject matter. Any claim that Subscriber wishes to assert
under the MSA must be initiated not later than one (1) year after the claim arose.
21.0 SEVERABILITY
In the event that any portion of the MSA is held to be invalid or unenforceable,
the invalid or unenforceable portion shall be construed in accordance with
applicable law as nearly as possible to reflect the original intentions of the Parties
set forth in the MSA and the remainder of the MSA shall remain in full force and
effect.
22.0 ASSIGNMENT
Subscriber may not assign the MSA or any associated Service Order without the
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
herein. Everstream may assign its rights and obligations under the MSA including,
without limitation, in whole or in part, to any affiliate or a party that acquires all
or substantially all of Everstream’s assets, without the prior written approval of or
notice to Subscriber. Subscriber understands and agrees that, regardless of any
such assignment, the rights and obligations of Everstream in the MSA may accrue
to, or be fulfilled by, any affiliate, as well as by Everstream and/or its
subcontractors.
23.0 GENERAL
23.1 If either Party fails to enforce any right or remedy under this MSA, that
failure is not a waiver of the right or remedy for any other breach or failure
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
representative of the Party against whom the waiver is sought to be
enforced.
23.2 There are no Third-Party beneficiaries to the MSA. The Parties to the MSA
are independent contractors.
24.0 NOTICES
Any notice under the MSA shall be given in writing and shall be deemed to have
been provided when received by the other Party at the respective addresses
below:
Everstream: Subscriber:
Everstream Solutions LLC City of Carmel
Attn: General Counsel One Civic Square
1228 Euclid Avenue Carmel, IN 46032
Suite 250
Cleveland, OH 44115
25.0 COUNTERPARTS
The MSA may be executed in counterparts, each of which shall be deemed an
original and all of which together shall constitute one and the same instrument.
Facsimile and electronic signatures will be deemed to be original signatures.
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ACCEPTED AND AGREED AS OF THE EFFECTIVE DATE:
EVERSTREAM SOLUTIONS LLC
Authorized Signature
Name (Print or Type)
Title
Date
SUBSCRIBER
Authorized Signature
James Brainard, Presiding Officer
Name (Print or Type)
Date:
Authorized Signature
Mary Ann Burke, Member
Name (Print or Type)
Date:
Authorized Signature
Lori S. Watson, Member
Name (Print or Type)
Date:
DocuSign Envelope ID: 900BA5A8-7C39-4761-BB8A-7F6BF735E8EF
7/6/2022
CEO
Brett Lindsey
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7/20/2022
7/20/2022
7/20/2022
DocuSign Envelope ID: 900BA5A8-7C39-4761-BB8A-7F6BF735E8EF
Brett Lindsey
DocuSign Envelope ID: 9E924DDF-D104-48BB-A216-96A773A6C2F9
7/20/2022
DocuSign Envelope ID: 900BA5A8-7C39-4761-BB8A-7F6BF735E8EF
7/6/2022
CEO
DocuSign Envelope ID: 9E924DDF-D104-48BB-A216-96A773A6C2F9
7/20/2022
7/20/2022
DocuSign Envelope ID: 900BA5A8-7C39-4761-BB8A-7F6BF735E8EFDocuSign Envelope ID: 9E924DDF-D104-48BB-A216-96A773A6C2F9
DocuSign Envelope ID: 900BA5A8-7C39-4761-BB8A-7F6BF735E8EF
CEO
Brett Lindsey
7/6/2022
DocuSign Envelope ID: 9E924DDF-D104-48BB-A216-96A773A6C2F9
7/20/2022
7/20/2022
7/20/2022
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