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HomeMy WebLinkAboutFirst Mile Tech/UTIL/16,200/Fiber Optic Transport First Mile Technologies Utilities-20113 Appropriation#01-6360-06 ; P.O.#W09760 Contract Not To Exceed$16,200.00 AGREEMENT FOR PURCHASE OF GOODS AND SERVICES THIS AGREEMENT FOR PURCHASE OF GOODS AND SERVICES ("Agreement") is hereby entered into by and between the City of Carmel, Indiana, acting by and through its Board of Public Works and Safety ("City"), and FirstMile Technologies, an entity duly authorized to do business in the State of Indiana ("Vendor"). TERMS AND CONDITIONS 1. ACKNOWLEDGMENT, ACCEPTANCE: Vendor acknowledges that it has read and understands this Agreement, and agrees that its execution of same constitutes its acceptance of all of the Agreement's terms and conditions. 2. PERFORMANCE: City agrees to purchase the goods and/or services (the "Goods and Services") from Vendor using City budget appropriation number 01-6360-06 funds. Vendor agrees to provide the Goods and Services and to otherwise perform the requirements of this Agreement by applying at all times the highest technical and industry standards. 3. PRICE AND PAYMENT TERMS: 3.1 Vendor estimates that the total price for the Goods and Services to be provided to City hereunder shall be no more than Sixteen Thousand Two Hundred Dollars ($16,200.00) (the"Estimate"). Vendor shall submit an invoice to City no more than once every thirty (30) days detailing the Goods and Services provided to City within such time period. City shall pay Vendor for such Goods and Services within sixty (60) days after the date of City's receipt 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 Exhibit A, are submitted on an invoice that contains the information contained on attached Exhibit B, and Vendor has otherwise performed and satisfied all the terms and conditions of this Agreement. 3.2 Vendor agrees not to provide any Goods and Services to City that would cause the total cost of the Goods and Services provided by Vendor to City hereunder to exceed the Estimate, unless City has previously agreed, in writing, to pay an amount in excess thereof. 4. WARRANTY: Vendor expressly warrants that the Goods and Services covered by this Agreement will conform to those certain specifications, descriptions and/or quotations regarding same as were provided to Vendor by City and/or by Vendor to and accepted by City, all of which documents are incorporated herein by reference, and that the Goods and Services will be delivered in a timely, good and workmanlike manner and free from defect. Vendor acknowledges that it knows of City's intended use and expressly warrants that the Goods and Services provided to City pursuant to this Agreement have been selected by Vendor based upon City's stated use and are fit and sufficient for their particular purpose. 5. TIME AND PERFORMANCE: This Agreement shall become effective as of the last date on which a party hereto executes same ("Effective Y:lLSaWOCSva&Cocas Svc,l P.,LUa'P"n M*Tcd Je®a.2-21-13,:U::VE6/2013 I:II PMI 1 FirstMile Technologies Utilities-2012 Appropriation#01-6360-06 ; P.O.#W09760 Contract Not To Exceed$16,200.00 Date"), and both parties shall thereafter perform their obligations hereunder in a timely manner. Time is of the essence of this Agreement. 6. DISCLOSURE AND WARNINGS: If requested by City, Vendor shall promptly furnish to City, in such form and detail as City may direct, a list of all chemicals, materials, substances and items used in or during the provision of the Goods and Services provided hereunder, including the quantity, quality and concentration thereof and any other information relating thereto. At the time of the delivery of the Goods and Services provided hereunder, Vendor agrees to furnish to City sufficient written warning and notice (including appropriate labels on containers and packing) of any hazardous material utilized in or that is a part of the Goods and Services. 7. LIENS: Vendor shall not cause or permit the filing of any lien on any of City's property. In the event any such lien is filed and Vendor fails to remove such lien within ten (10) days after the filing thereof, by payment or bonding, City shall have the right to pay such lien or obtain such bond, all at Vendor's sole cost and expense. 8. DEFAULT: In the event Vendor: (a) repudiates, breaches or defaults under any of the terms or conditions of this Agreement, including Vendor's warranties; (b) fails to provide the Goods and Services as specified herein; (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 this Agreement, without liability to Vendor; and (2) exercise all other rights and remedies available to City at law and/or in equity. 9. INSURANCE AND INDEMNIFICATION: Vendor shall procure and maintain in full force and effect during the term of this Agreement, with an insurer licensed to do business in the State of Indiana, such insurance as is necessary for the protection of City and Vendor from all claims for damages under any workers' compensation, occupational disease and/or unemployment compensation act; for bodily injuries including, but not limited to, personal injury, sickness, disease or death of or to any of Vendor's agents, officers, employees, contractors and subcontractors; and, for any injury to or destruction of property, including, but not limited to, any loss of use resulting therefrom. The coverage amounts shall be no less than those amounts set forth in attached Exhibit C. Vendor shall cause its insurers to name City as an additional insured on all such insurance policies, shall promptly provide City, upon request, with copies of all such policies, and shall provide that such insurance policies shall not be canceled without thirty(30) days prior notice to City. Vendor shall indemnify and hold harmless City from and against any and all liabilities, claims, demands or expenses (including, but not limited to, reasonable attorney fees) for injury, death and/or damages to any person or property arising from or in connection with Vendor's provision of Goods and Services pursuant to or under this Agreement or Vendor's use of City property. Vendor further agrees to indemnify, defend and hold harmless City and its officers, officials, agents and employees from all claims and suits of whatever type, including, but not limited to, all court costs, attorney fees, and other expenses, caused by any act or omission of Vendor and/or of any of Vendor's agents, officers, employees, contractors or subcontractors in the performance of this Agreement. These indemnification obligations shall survive the termination of this Agreement. N:wa fl&SulC d[svu'VWmcN,m?W,rah,lO& -1.21-l]erc-YM2ou JIGS PM] .} FirstMile Technologies Utilities-2012 Appropriation#01-6360-06 ; P.O. #W09760 Contract Not To Exceed$16,200.00 10. GOVERNMENT COMPLIANCE: Vendor agrees to comply with all federal, state and local laws, executive orders, rules, regulations and codes which may be applicable to„Vendor's performance of its obligations under this Agreement, and all relevant provisions thereof are incorporated herein by this reference. Vendor agrees to indemnify and hold harmless City from any loss, damage and/or liability resulting from any such violation of such laws, orders, rules, regulations and codes. This indemnification obligation shall survive the termination of this Agreement: 11. NONDISCRIMINATION: Vendor represents and warrants that it and all of its officers, employees, agents, contractors and subcontractors shall comply with all laws of the United States, the State of Indiana and City prohibiting discrimination against any employee, applicant for employment or other person in the provision of any Goods and Services provided by this Agreement with respect to their hire,tenure, terms, conditions and privileges of employment and any other matter related to their employment or subcontracting, because of race, religion, color, sex, handicap, national origin, ancestry, age, disabled veteran status and/or Vietnam era veteran status. 12. E-VERIFY Pursuant to I.C. § 22-5-1.7 et seq., Company shall enroll in and verify the work eligibility status of all of its newly-hired employees using the E-Verify program, if it has not already done so as of the date of this Agreement. Company is further required to execute the attached Affidavit, herein referred to as Exhibit D, which is an Affidavit affirming that: (i) Company is enrolled and is participating in the E-verify program, and (ii) Company does not knowingly employ any unauthorized aliens. This Addendum incorporates by reference, and in its entirety, attached Exhibit D. In support of the Affidavit, Company shall provide the City with documentation that it has enrolled and is participating in the E-Verify program. This Agreement shall not take effect until said Affidavit is signed by Company and delivered to the City's authorized representative. Should Company subcontract for the performance of any work under this Addendum, the Company shall require any subcontractor(s) to certify by affidavit that: (i) the subcontractor does not knowingly employ or contract with any unauthorized aliens, and (ii) the subcontractor has enrolled and is participating in the E-verify program. Company shall maintain a copy of such certification for the duration of the term of any subcontract. Company shall also deliver a copy of the certification to the City within seven (7) days of the effective date of the subcontract. If Company, or any subcontractor of Company, knowingly employs or contracts with any unauthorized aliens, or retains an employee or contract with a person that the Company or subcontractor subsequently learns is an unauthorized alien, Company shall terminate the employment of or contract with the unauthorized alien within thirty (30) days ("Cure Period"). Should the Company or any subcontractor of Company fail to cure within the Cure Period, the City has the right to terminate this Agreement without consequence. The E-Verify requirements of this Agreement will not apply should the E-Verify program cease to exist. 11 NO IMPLIED WAIVER: The failure of either party to require performance by the other of any provision of this Agreement shall not affect the right of such party to require such performance at any time thereafter, nor shall the waiver by any party of a breach of any provision of this Agreement constitute a waiver of any succeeding breach of the same or any other provision hereof 14. NON-ASSIGNMENT: Vendor shall not assign or pledge this Agreement, whether as collateral for a loan or otherwise, and shall not delegate its obligations under this Agreement without City's prior written consent. IY:WSMAO(S+nS0'S,S,c.'U,rliia`Siry MaeTNUmyro 1:1-IJ.6¢:1RNSOU J.U1 PMI 3 .FirstMile Technologies Utilities-2012 • Appropriation#01-6360-06 ; P.O.#W09760 Contract Not To Exceed$16,200.00 15. RELATIONSHIP OF PARTIES: The relationship of the parties hereto shall be as provided for in this Agreement, and neither Vendor nor any of its officers, employees, contractors, subcontractors and agents are employees of City. The contract price set forth herein shall be the full and maximum compensation and monies required of City to be paid to Vendor under or pursuant to this Agreement. 16. GOVERNING LAW; LAWSUITS: This Agreement is to be construed in accordance with and governed by the laws of the State of Indiana, except for its conflict of laws provisions. The parties agree that, in the event a lawsuit is filed hereunder, they waive their right to a jury trial, agree to file any such lawsuit in an appropriate court in Hamilton County, Indiana only, and agree that such court is the appropriate venue for and has jurisdiction over same. 17. SEVERABILITY: If any term of this Agreement is invalid or unenforceable under any statute, regulation, ordinance, executive order or other rule of law, such term shall be deemed reformed or deleted, but only to the extent necessary to comply with same, and the remaining provisions of this Agreement shall remain in full force and effect. 18. NOTICE: Any notice provided for in this Agreement will be sufficient if it is in writing and is delivered by postage prepaid U.S. certified mail, return receipt requested, to the party to be notified at the address specified herein: If to City: City of Carmel AND Douglas C. Haney, City Attorney One Civic Square Department of Law Carmel, Indiana 46032 One Civic Square ATTENTION: Carmel, Indiana 46032 If to Vendor: FirstMile Technologies 750 Liberty Drive Westfield, IN 46074 Telephone: E-Mail: ATTENTION: contract @firstmile.net Notwithstanding the above, notice of termination under paragraph 19 hereinbelow shall be effective if given orally, as long as written notice is then provided as set forth hereinabove within five (5) business days from the date of such oral notice. 19. TERMINATION: 19.1 Notwithstanding anything to the contrary contained in this Agreement, City may, upon notice to Vendor, immediately terminate this Agreement for cause, in the event of a default hereunder by Vendor and/or if sufficient funds are not appropriated or encumbered to pay for the Goods and Services to be provided hereunder. In the event of such termination, Vendor shall be entitled to receive only payment for the undisputed invoice amount representing conforming Goods and Services delivered as of the date of termination, except that such payment amount shall not exceed the Estimate amount in effect at the time of termination, unless the parties have previously agreed in writing to a greater amount. pe\thour.Prof S,ca&Gads Svcs\LAtilsY.,n Mile TZMdn tia.331-13 di,:L162011].OS PM] 4 FirstMile Technologies Utilities-2012 Appropriation#01-6360-06 ; P.O.#W09760 Contract Not To Exceed$16,200.00 20. REPRESENTATIONS AND WARRANTIES The parties represent and warrant that they are authorized to enter into this Agreement and that the persons executing this Agreement have the authority to bind the party which they represent. 21. ADDITIONAL GOODS AND SERVICES Vendor understands and agrees that City may, from time to time, request Vendor to provide additional goods and services to City. When City desires additional goods and services from Vendor, the City shall notify Vendor of such additional goods and services desired, as well as the time frame in which same are to be provided. Only after City has approved Vendor's time and cost estimate for the provision of such additional goods and services, has encumbered sufficient monies to pay for same, and has authorized Vendor, in writing, to provide such additional goods and services, shall such goods and services be provided by Vendor to City. A copy of the City's authorization documents for the purchase of additional goods and services shall be numbered and attached hereto in the order in which they are approved by City. 22. TERM Unless otherwise terminated in accordance with the termination provisions set forth in Paragraph 19 hereinabove, this Agreement shall be in effect from the Effective Date through December 31, 2013 and shall, have an initial term of four (4) years, which shall, on the first day of each January thereafter, automatically renew for a period of one (1) calendar year, unless otherwise agreed by the parties hereto. 23. HEADINGS All heading and sections of this Agreement are inserted for convenience only and do not form a part of this Agreement nor limit, expand or otherwise alter the meaning of any provision hereof. 24. BINDING EFFECT The parties, and their respective officers, officials, agents, partners, successors, assigns and legal representatives, are bound to the other with respect to all of the covenants, terms, warranties and obligations set forth in Agreement. 25. NO THIRD PARTY BENEFICIARIES This Agreement gives no rights or benefits to anyone other than City and Vendor. 26. IRAN CERTIFICATION: Pursuant to I.C. § 5-22-16.5, the Vendor shall certify that, in signing this document, it does not engage in investment activities within the Country of Iran.' 27. ADVICE OF COUNSEL: The parties warrant that they have read this Agreement and understand it, have had the opportunity to obtain legal advice and assistance of counsel throughout the negotiation of this Agreement, and enter into same freely, voluntarily, and without any duress, undue influence or coercion. 28. ENTIRE AGREEMENT: This Agreement, together with any exhibits attached hereto or referenced herein, constitutes the entire agreement between Vendor and City with respect to the subject matter hereof, and supersedes all prior oral or written representations and agreements regarding same. Notwithstanding any other term or condition set forth herein, but subject to paragraph 16 hereof, to the extent any term or condition contained in any exhibit (V:WmWWOrsz,&G,d,S.n\Uiilioe33to?Mc Tminolei .331.13arc.vzl Ol33Q3 PM) 5 FirstMile Technologies Utilities-2012 Appropriation#01-6360-06 ; P.O. #W09760 Contract Not To Exceed$16,200.00 attached to this Agreement or in any document referenced herein conflicts with any term or condition contained in this Agreement, the term or condition contained in this Agreement shall govern and prevail. This Agreement may only be modified by written amendment executed by both parties hereto, or their successors in interest. IN WITNESS WHEREOF, the parties hereto have made and executed this Agreement as follows: CITY OF CARMEL, INDIANA FirstMile Technologies by and through its Board of Public Works and Safety By: By: Ailie �z:i James Brainard, Presiding Officer Authorized signature Date: (4424/( /</ /GE Printed Nam e Ma An uric Member Date: 3 —6 -/3 2ir.re 414 Title Lori S. Watso', em er FID/TIN: 3s' d0961751 Date: -3/(p(/3 Last Four of SSN if Sole Proprietor: ATTEST: / Date: 2/2 b//3 / • � i Diana Cordray, IAMC, E1'erk-Treasurer Date: 3-Ca -/3 ':mrwrnus.<.suws...,ww,uezfl,a mot ram�oa-2•2I-ud. :>nnaou xm ran 6 • l r.S • e City Of Carmel, Water Distribution TECHNOLOGIES Service Location:West 131st. Street -Carmel,IN Date: January 22,2013 :QUANTITY UNITPRICE='.v u._ .k. m .tea__ • ..._#"Services :._°:.-.. -.«m. .>K.r _.—°_ = ONETIME®=i 1 $1,350.00 1 Gig transport with fiber handoff waived 1,350.00 From West 131st Street Location to nlFrame(delivered at the North WAN room) •FIf imi E ul merit Se U and Tfainln - s - (QUANTRY T 1UNI1W,RICE!a €Id EQUIPMENT/SERVICEir ' _"'r- .-. TDESCRIFMON, 7.77.2:711521j rIONEITIMEt ":,.,t,T_7jMRC—?"T'f ��,;,� _ ,rAddfflonali'Se�ices,;,opttor i . QUANTITYr UNRaPRICE` , s°" �s" 1 iDESCRIPTION ty i. :11".0.;;;;t k9NETIME7 1.�•ya MRC fibers in the conduit for the City of Carmel. Also .._r First Mile will give use of 12 f tY Iso any deal that First Mile aquires utalizing the conduit that belongs to the City of Carmel that Is being used this circuit, First File will pay 15%of the monthly recurring charge to the City of carmel for the entirity of the ageement - We will provide a Gig Cicuit using a single mode fiber handoff. �Iun[NLkE,<.Tot l t®ne'g.l C NOTES: IMQ. hIyIRa ecU t. la , I $1,350.00 1.Pricing does not include taxes and applicable regulatory fees. 2.Proposal valid for 30 days. 3.Monthly billings may vary based on the actual quantity of DID numbers in service and equipment deployed. Effective Date;Initial Term:The Effective Date of this Agreement is ,2013. The Initial Term of this Agreement will commence on the Effective Date and will continue for four(4)years after the Implementation Date. Implementation Date: The intended Implementation Date is ,when charges will begin for services under this Agreement,other than one-time charges for installation and/or equipment purchases,which will be invoiced on the Effective Date. Terms and Conditions:This Agreement is subject in all respects to the attached Terms and Conditions,which are incorporated herein by reference. Certain capitalized terms used in this Agreement or Proposal will have the meanings ascribed to such terms in the Terms and Conditions. Customer should read and understand the attached Terms and Conditions before signing below. If you are in agreement with the foregoing and the Terms and Conditions attached hereto,please sign below. 'FirstMile" "Customer" E.com Technologies,LLC d/b/a FirstMile Technologies City Of Carmel, Water Distribution By: By: Printed: Printed: Title: Title: Address: 750 Liberty Dr.,Westfield,IN 46074 //�� Address: West 131st Street -Camel,IN EMAIL: CONTRACTefirstmile.net 'EXHIBIT A a EMAIL: ag�P e1oofU- E.com Technologies, LLC d/b/a FirstMile Technologies Terms and Conditions The following terms and conditions ("Terms and not restored the Services on a system-wide basis within Conditions") govern the services to be performed,and the two hours of receipt of Customer's notification to First communication equipment and solutions to be provided, Mile (and conditioned that Customer has given First Mile by E.com Technologies,LLC d/b/a First Mile Technologies reasonable opportunity to restore such Services in that time ("First Mile") for the customer identified in the Contract period), First Mile will credit Customer's account for the ("Customer"). These Terms and Conditions form a part of cost of the Services for that particular day and each and are incorporated by reference into the Contract subsequent day until the Services are restored on a system- between First Mile and Customer(the"Contract",together wide basis. The account is credited by one week for every with these Terms and Conditions,this"Agreement"). one day without service. The amount of the credit shall be determined as follows: (A) the then current monthly price 1.Services and Equipment. for the Services that were unavailable, divided by (B) thirty(30), multiplied by(C) the number of Business Days (a) In General. First Mile will provide the internee such Services were unavailable, multiplied by(D) five. If protocol capable customer premises equipment (the Service is not restored on a system-wide basis within 48 "Equipment") and will perform the services and solutions hours, Customer may terminate the contract for Cause, as identified in the Contract (collectively, the "Services"). defined in Paragraph 4(a). The term "Business Day" First Mile will not perform or provide any services, means any day other than a Saturday, Sunday or other day products or equipment other than the Services and which shall be in Westfield, Indiana a legal holiday or a Equipment specifically set forth in the Contract, unless day on which the offices of First Mile or any of its otherwise agreed to in writing by First Mile as set forth in affiliates are closed. Any credit pursuant to this Section 2 Section 3 below. will be applied to Customer's next regular monthly invoice. • (b) VoIP. First Mile's Services utilize Voice over Internet Protocol("VoIP"). Important information Customer needs 3. Additional Services, Products and Equipment. to know, and which Customer acknowledges by signing Customer and First Mile agree and acknowledge that below receiving, reading, and understanding, is attached Customer may request in writing that First Mile provide and incorporated herein by reference as Schedule 1. additional services, products and equipment from time to time. First Mile shall not be obligated to perform or 2. Service Level Commitment. First Mile guarantees provide additional services, products or equipment until that the Services on a system-wide basis will be available such time as an authorized representative of First Mile at least 97.5%of the time during any calendar month. The agrees in writing. Services shall not be considered to be unavailable (a) unless the Services are unavailable to each and every 4. Term and Termination. The initial term of this authorized user(i.e.,on a system-wide basis);or(b)during Agreement shall be as set forth in the Contract(the"Initial any period during which there are outages or failures Term"). The Initial Term shall automatically renew for resulting from a scheduled maintenance or resulting from additional terms of one year each(each, a"Renewal Term" occurrences outside of First Mile's control, including, but and together with the Initial Term, the "Tenn") unless not limited to: (i) power outages of sufficient length to Customer gives First Mile.written notice ninety (90) days cause failure of backup equipment that provides power to prior to the end of the Initial Term or a Renewal Term, as Customer; (ii) disruptions caused by a failure of power or applicable. Notwithstanding the foregoing, the Term may equipment provided by the Customer or any third party; be earlier terminated as follows: (iii)disruption during any period in which First Mile is not given access to the Customer's premises; (iv) disruptions (a)For Cause. During the Term,either party will have the • due to a force majeure event (as described in Section 17); right to terminate in the event of a material breach by the and (v) disruptions to service caused by the Customer or other party if the breach has not been cured, (i) in the case any other person utilizing the Services; (vi) disruptions of any non-payment by Customer, within thirty (30) days caused by fiber cuts or facilities disconnection by third following the date upon which such payment was due,and party of customer. (ii) in all other cases, within sixty (60) days following written notice of the breach. Customer shall promptly notify First Mile whenever the (b) Bankruptcy. Either party will have the right to Services are unavailable. In the event that First Mile has terminate upon thirty (30) days written notice if the other ea A o Page 2 of 8 party shall (i) have an order for relief entered with respect the foregoing by any governmental authority that results in to it under the Federal Bankruptcy Code, (ii) not pay, or increased costs to First Mile with respect to its admit in writing its inability to pay, its debts generally as performance under this Agreement. First Mile shall they become due, (iii) make an assignment for the benefit provide Customer with written notice of any such increase of creditors, (iv) apply for, seek, consent to, or acquiesce 60 days prior to any such adjustment. Customer reserves in, the appointment of a receiver, custodian, trustee, the right to terminate under this subsection,at its option, if examiner, liquidator or similar official for it or any the increase in fees requires an additional appropriation of substantial part of its property,(v) institute any proceeding funds. seeking an order for relief under the Federal Bankruptcy Code or seeking to adjudicate it a bankrupt or insolvent, or (c) Invoice; Payment. Any Fees relating to installation of seeking dissolution, winding up, liquidation, the Equipment will be invoiced by First Mile on or about reorganization, rehabilitation, arrangement, adjustment or the effective date of this Agreement set forth in the composition of it or debts under any law relating to Contract. First Mile will submit a monthly invoice to bankruptcy, insolvency or reorganization or relief of Customer for Fees relating to the Services provided by debtors or fail to file an answer or other pleading denying First Mile for the applicable period. Customer shall pay all the material allegations of any such proceeding filed invoiced amounts within sixty (60) days of the invoice against it, or (vi) dissolves or suspends operations as date. presently conducted or discontinues doing business as a going concern. (d) Removal Costs. Unless otherwise stated in this Agreement,the Fees do not include the cost for removal of (c) Effect of Termination. In the event of termination any pre-existing cable, wire, or equipment from (whether for cause, without cause or expiration of the Customer's premises (the "Premises"), or if pre-existing Term), among other things, (i) Customer shall promptly cable or wire is utilized, the cost to bring such cable or pay First Mile all fees and expenses for Services provided wire up to local code requirements. up through the date of the termination, and(ii)both parties will return or destroy any confidential information of the 6. Title to Equipment. Customer acknowledges and other(all as directed by the other party). agrees that First Mile shall retain all right, title and interest in and to any and all Equipment leased or otherwise 5.Fees, Payment,and Costs. delivered to Customer by First Mile pursuant to this Agreement other than Customer's leasehold interest (a)Fees. The fees to be paid by Customer for the Services therein. Customer owns the conduit, which is not subject during the Term and the fees for the Equipment, including to this provision. Customer shall at all times defend First the installation thereof(as applicable), are set forth in the Mile's interest in the Equipment and shall indemnify First Contract(the"Fees"). For purposes of clarity, some of the Mile against any and all claims against its interest in the Fees may be based on a monthly per unit basis and Equipment. Customer authorizes First Mile to file (and Customer may increase or decrease (as applicable) the sign on its behalf, as applicable) any and all Uniform number of units that are subject to such Fees, as agreed to Commercial Code filings as it deems necessary or by Customer and First Mile in writing from time to time. desirable to evidence its interest in the Equipment. Upon Customer may not decrease service level in order to accept termination of this Agreement for any or no reason, (a) services from another substantially similar provider during Customer shall return to First Mile any and all Equipment the term of this agreement. undamaged regardless of where located,and(b)First Mile shall be entitled to enter onto the Premises to obtain any (b)Adjustments in Fees. and all Equipment. In the event Customer does not return the Equipment, or the Equipment is damaged in any way (i) If Customer requests additional services and First Mile (excluding damage caused as a result of First Mile's agrees to perform such services pursuant to Section 3,the negligence and excluding ordinary wear and tear), Fees shall be increased as agreed upon by First Mile and Customer shall pay First Mile for such Equipment, or Customer. damage to such Equipment(as applicable). (ii) Fees may automatically be adjusted upon each 7. Risk of Loss. Customer shall bear the risk of loss, anniversary of the effective date of this Agreement only if damage, or destruction of all Equipment upon delivery to there is a change in any federal, state,or local statute, law, the Premises, unless such loss, damage, or destruction is municipal charter provision, regulation, ordinance, rule, caused by the negligence of First Mile, its agents, or mandate,judgment, order, decree, permit, code or license subcontractors and excluding ordinary wear and tear. requirement or other governmental requirement or restriction,or any interpretation or administration of any of .oaiarr, A • Page 3 of 8 8. Conditions for Installation and Access. Prior to the any location, other than that where First Mile is in physical scheduled delivery of the Equipment, Customer at its own contact with asbestos, provided that First Mile follows expense shall make available room on the Premises for customary safety practices when working with asbestos. installation of the Equipment. First Mile will restore the areas of the Premises worked on by First Mile or its subcontractors to the same level of Customer shall furnish, at no cost to First Mile, adequate fireproofing protection as existed immediately before First lighting,heat, temporary heat,protection against inclement Mile's work. weather, power,water, cleaning, elevator service,hoisting, watchman, and similar items and services. Customer shall (c) No Tampering. Customer shall not in any way tamper also supply all supplemental equipment required and with or alter the Equipment without the express permission appropriate access to same, including, but not limited to, of First Mile. Violation of this subsection is a material air conditioning, conduits, commercial power wiring breach of this Agreement. outlets, and mounting surface if required. Further, Customer shall also permit or arrange for access to the 10.Acceptance of Equipment; IP Systems. Premises for First Mile's installation and maintenance personnel and shall provide a suitable protected area for (a) Equipment. Customer shall promptly accept the storage of the equipment pending its installation. The Equipment on First Mile's acceptance form if it conforms above Customer obligations must be performed on or to all manufacturers' specifications per First Mile's before dates mutually agreed upon in writing. standard acceptance test. If within sixty (60) days following the Implementation Date, Customer discovers Customer shall provide working conditions for First Mile's nonconformities, Customer shall send First Mile written personnel in compliance with the current requirements of notice setting forth the details of such nonconformities. the Occupational Safety and Health Act. The presence of First Mile shall proceed with due diligence to cure asbestos or other hazardous materials or concealed nonconformities set forth in Customer's written notice to conditions may also adversely affect the timetable for conform to manufacturer's specifications. First Mile shall delivery,installation,and implementation hereunder. notify Customer in writing within three days when it has cured the nonconformities and the Equipment shall then be 9. Installation and Implementation; No Tampering. deemed accepted. First Mile shall deliver and install the Equipment as specified in the Contract (as applicable). It is understood The Equipment shall otherwise be deemed accepted by that all delivery and installation dates and the intended date Customer if Customer fails (i) to sign timely First Mile's of implementation reflected in the Contract (the acceptance form, and (ii) to notify First Mile in writing of "Implementation Date") are approximate and First Mile nonconformities within sixty (60) days following the shall under no circumstances be liable for damages, Implementation Date. Customer shall notify First Mile of special, incidental consequential or otherwise, resulting a defect in material and/or workmanship within twenty from, or arising out of, the delivery, installation or (20) Business Days after discovery thereof Otherwise implementation of the Equipment, except those damages such claims shall be deemed waived. All replaced parts caused by First Mile's negligence. become the property of First Mile. System components utilized will be from new parts or serviceable used parts (a) Implementation Date. Minor defects or omissions or equivalent to new in performance. • substitutions or delay in availability of certain features or equipment, which do not materially affect the functioning , (b) Systems. Customer shall be responsible at all times for of the entire system, shall not affect the Implementation ensuring that their IP network is able to support the VoIP Date. In any case, implementation will be deemed to have services provided by First Mile under this Agreement. occurred if Customer is using the Equipment installed. Without limiting the generality of the foregoing, Customer shall verify,test, modify, and upgrade their IP network for In the event that installation of certain items is delayed the support of Vol? services from time to time and at least beyond the Implementation Date, Customer shall be as needed to support First Mile's VOID services under this responsible for timely payment for all items that are Agreement. Customer's validation of the IP network shall delivered. If the Implementation Date is unreasonably include, without limitation, assuring (i) appropriate postponed by the Customer,First Mile reserves the right to bandwidth is available for VOID traffic at the initial bill in accordance to Section 5. deployment of the VoIP system and thereafter for the life of the VoIP system, (ii) quality of service components and (b) Installation. First Mile assumes no liability for(i) any options are supported and deployed in the Customer's IP conditions, including asbestos existing before First Mile's network, and (iii) appropriate management tools are performance hereunder or (ii) increased asbestos levels at available for network management. "MAW A • Page 4 of 8 WARRANTY OF ANY KIND, WHETHER EXPRESS 11. Re-location of Services: In the case where the need OR IMPLIED, AND DISCLAIMS ALL WARRANTIES, arises for an office to move from their current service INCLUDING, BUT NOT LIMITED TO, ANY IMPLIED address to another address located within the same service WARRANTIES OF MERCHANTABILITY AND area,FirstMile will perform the transfer of all dial tone and FITNESS FOR A PARTICULAR PURPOSE. UNDER circuit services without causing the Customer to incur an NO CIRCUMSTANCES SHALL FIRST MILE BE additional installation charge. However,FirstMile will RESPONSIBLE FOR INCIDENTAL, pass through to the Customer without markup and require CONSEQUENTIAL, OR PUNITIVE DAMAGES payment by the Customer for'any and all direct costs (INCLUDING, BUT NOT LIMITED TO, LOST incurred by FirstMile as a result of the Relocation of PROFITS AND LOSSES CAUSED BY BUSINESS Service which may be charged by the underlying provider INTERRUPTION) ARISING FROM OR TN . of DS-1 circuits per the existing contracts between said CONNECTION WITH THE SERVICES, THE provider and FirstMile. EQUIPMENT OR OTHERWISE. THE SOLE OBLIGATION OF FIRST MILE SHALL BE AS SET FORTH IN THIS SECTION 14. IN NO EVENT SHALL 12. Insurance. First Mile shall provide and maintain FIRST MILE'S CUMULATIVE LIABILITY TO insurance for First Mile's protection with respect to CUSTOMER UNDER THIS AGREEMENT EXCEED liability arising out of First Mile's performance hereunder, THE AMOUNT OF FEES RECEIVED BY FIRST MILE of the following types and limits of liability: UNDER THIS AGREEMENT. ANY AND ALL WARRANTIES SHALL BE VOID AS TO EQUIPMENT (a) Worker's Compensation, which shall apply to all (OR ITS COMPONENTS) DAMAGED OR RENDERED persons employed by First Mile and which shall conform UNSERVICABLE BY: (1) THE ACTS OR OMISSIONS to the statutory requirements of each occurrence. OF NON-FIRST MILE PERSONNEL OTHER THAN ITS AGENTS OR SUBCONTRACTORS; (2) MISUSE, (b) Comprehensive General Liability, with a combined THEFT, VANDALISM, LIGHTNING, FIRE, WATER, single limit of liability or$1,000,000 for bodily injury and OR OTHER PERIL; (3) MOVING, RELOCATIONS, property damage liability for each occurrence. ALTERATION OF OR ADDITIONS TO THE EQUIPMENT NOT AUTHORIZED BY FIRST MILE IN (c) Business Automobile Liability, covering all owned, WRITING; (4) CUSTOMER'S FAILURE TO PROVIDE non-owned and hired automobiles of First Mile, with THE ENVIRONMENT SPECIFIED IN SECTION 8; OR combined property damage for each accident. (5)POWER FAILURES OR SURGES. THERE ARE NO WARRANTIES THAT EXTEND BEYOND THE 13. Security. Customer shall assume responsibility for, DESCRIPTOIN ON THE FACE HEREOF. No employee, and all liability for any losses related to, the agent, salesperson, or other person is authorized to give implementation and utilization of any and all security any warranties on behalf of First Mile, nor to assume for features associated with the Services and the Equipment, First Mile any other liability in connection with any of its including, but not limited to, modification of security and services provided, without written approval by an officer access codes. of First Mile. 14.Warranties,Disclaimer,and Limitation of Liability. 15. Indemnification. Customer agrees to defend and First Mile warrants that(a) the Services will be performed indemnify First Mile and its respective officers, directors, in a professional and workmanlike manner, in accordance employees and agents from and against all claims, suits, with standard industry practices, and (b) the Equipment as actions, damages, losses and expenses (including, without delivered and accepted by Customer will materially limitation, reasonable professional fees and costs of perform in accordance with all technical documentation litigation) that in any manner result from or arise directly and specifications provided by First Mile. The technical or indirectly, in whole or in part, from Customer's actions documentation and specifications provided on or before or omissions and/or, if applicable,the actions or omissions the date of this Agreement shall represent the minimum of Customer's customer(s), employees, representatives, functionality of the Equipment. Customer's sole remedy and/or agents. for any breach of the warranties contained in this Agreement is (i) re-performance of the non-conforming 16. Non-Solicitation. Customer and its affiliates shall not Services or (ii) repair or replacement of non-performing directly or indirectly, solicit, hire or attempt to hire, nor Equipment. utilize the services of anyone who is an employee, consultant or subcontractor of First Mile while this EXCEPT AS PROVIDED IN THIS SECTION 14, FIRST Agreement is in effect between Customer and First Mile or MILE MAKES NO OTHER REPRESENTATION OR A a period of six months following the termination of this • 'EC-1M !1 'EC Page 5 of 8 Agreement (for any or no reason), without express prior specified in the Contract. Either party may change its written permission of First Mile. address from time to time by giving notice to that effect as provided herein. 17. Force Majeure. Notwithstanding anything to the contrary herein or otherwise, neither party will be liable to 23. Waiver, Severability. The failure of either party at the other for any delay in delivery or failure to perform any time-to exercise any of its rights hereunder will not be caused by a force beyond its control, including, but not deemed to be a waiver of those rights or any other rights limited to, natural disasters, wars, acts of God, acts of hereunder. If any portion of this Agreement is or becomes terrorism, or interruption of utilities or transportation. In invalid under any applicable law or regulation, such such event, the affected party will promptly notify the portion will be deemed stricken and the rest of this other party of the nature and anticipated duration of the Agreement will remain in full force and effect. delay or failure. 24. Governing Law and Choice of Venue. This 18. Status of Parties. First Mile is an independent Agreement shall be governed by and construed in contractor and shall not-under any circumstances be accordance with the laws of the State of Indiana, without considered an employee, agent, partner of or a joint regard to such jurisdiction's conflict of laws principles. venture with Customer or any of its affiliates. Any controversy,claim or dispute arising out of or relating to this Agreement or the breach, termination, 19. Taxes. Customer shall pay any and all applicable enforceability or validity of this Agreement, shall be municipal, county, state or federal sales, excise, or other brought in the courts of the State of Indiana,or, if it has or taxes and fees which may be levied upon the sale, transfer can acquire jurisdiction, the United States District Court of ownership, installation or use of the Equipment or the for the Southern District of Indiana,and each of the parties Services,except for any tax assessed upon First Mile's net irrevocably submits to the exclusive jurisdiction of each income. Said tax payments shall be made according to such court in any such matter, waives any objection it may requirements of local law and are due and payable upon now or hereafter have to venue or to convenience of invoice by First Mile or as assessed and billed directly to forum, agrees that all claims in respect of the matter shall Customer. be heard and determined only in any such court and agrees not to bring any such matter arising out of or relating to 20. Assignment. Customer shall not assign, in whole or in this Agreement in any other court. The parties agree that part,any of its obligations or rights hereunder without First any of them may file a copy of this paragraph with any Mile's prior written consent, and any attempted court as written evidence of the knowing, voluntary and assignment without such consent will be void and bargained agreement between the parties irrevocably to unenforceable. For purposes of clarity, First Mile shall be waive any objections to venue or to convenience of forum. entitled to assign or subcontract, in whole or in part, any of Process in any matter referred to in this paragraph may be its obligations or rights hereunder without Customer's served on any party anywhere in the world. prior written consent. 25. Third Parties. The Services provided by First Mile 21. Authorization and Understanding of Agreement. under this Agreement are provided for the sole benefit of The parties represent that each of the signatories to this Customer, and not for the benefit of any third party, Agreement has the legal authority to execute this including without limitation any customers or suppliers of Agreement. Each party has read and fully understands the Customer. terms of this Agreement. 26. Professional Fees. In the event of any legal action or 22. Notices. All notices and other communications proceeding between the parties regarding this Agreement, pertaining to this Agreement shall be in writing and shall the prevailing party shall be entitled to payment by the be deemed to have been given by a party hereto if (a) non-prevailing party of its reasonable attorneys' fees and personally delivered to the other party, (b) sent by litigation expenses as determined in the course of the overnight courier by a national courier service, (c) sent by proceeding. certified mail, return receipt requested, postage prepaid. A notice sent by (i) personal delivery shall be deemed to be 27. Entire Agreement, Modification, and Binding given on the date of delivery,(ii)overnight courier shall be Effect. The terms in this Agreement (together with the deemed to be given one(1)Business Day after such notice schedules and exhibits in the Contract and these Terms and is sent, (iii) certified mail shall be deemed to be given on Conditions, as applicable), as well as the Agreement for the third Business Day after the mailing date. All notices Purchase of Goods and Services, are the complete and or communications between Customer and First Mile exclusive statement of the agreement of the parties with pertaining to this Agreement shall be addressed as respect to the services authorized hereunder and supersede "EXHIBIT Page 6 of 8 and merge all prior contracts, understandings, and agreements, whether oral or written, between the parties with respect to the subject matter of this Agreement. No course of dealing or usage of trade shall be part of this Agreement. No modification or amendment of any provision of this Agreement shall be binding unless executed in writing by both parties. This Agreement's terms shall be binding on Customer and First Mile and their respective successors and any duly authorized assigns. 28.Confidentiality.The parties agree that any information identified by either of them as "confidential" or "proprietary,"or which,under all the circumstances, ought reasonably to be treated as confidential,will not be used by the other except as contemplated by this Agreement, and will not be disclosed to any other person or entity, without the express written consent of the discloser. The terms of this Agreement are confidential. These obligations will continue for the longer of three (3) years from the date of disclosure, and two (2) years from the termination of this Agreement (for any or no reason). These obligations will not apply to information which (a) is or subsequently becomes available to the public other than by breach of this paragraph; (b) is already known to the recipient prior to the disclosure; or (c) the recipient rightfully receives from a third party not itself under an obligation of confidentiality. In the event of any breach by either party of its obligations under this Section 28, each party acknowledges that damages may not adequately compensate for such a breach, and that the non-breaching party may pursue injunctive relief for such breach. 29. Compliance with Laws. First Mile agrees that all work and materials furnished by First Mile will be in material accordance with all applicable federal, state, municipal or other laws, ordinances, and regulations. First Mile will secure and pay for all permits, bonds, fees, and licenses necessary for the proper completion of the work to be performed by First Mile. Document I •O611BIT A Page 7 of 8 Schedule 1 Important Information Regarding VoIP First Mile is, for purposes of 49 CFR Part 9, an Interconnected Voice over Internet Protocol("VoW") service provider. First Mile's Service enables real-time, two-way voice communications, requires a broadband connection from the Customer's location, requires use of First Mile's Equipment, and permits the Customer to receive calls that originate on the public switched telephone network and to terminate calls to the public switched telephone network. Using traditional technology such as landline and wireless phones, many calls placed to 911 will convey voice communication as well as data communication. That is, in addition to the voice communication between the 911 caller and the 911 operator, data is communicated to the public safety answering point where the 911 operator answers the 911 call. Typically, the data includes the actual physical location of the 911 caller, as well as the phone number from which the 911 caller is calling. This feature is known as Enhanced 911, or E911, and requires some way of determining the actual physical location of the 911 caller. For wireline E911, the actual physical location can be automatically determined by consulting an electronic database. For wireless E911, the actual physical location is determined by determining the origination of a call by wireless technology. Because VoIP technology conveys voice and data transmission differently from traditional landline and wireless technology, the 911 operator would not be able to determine the location of the 911 caller without additional services provided by First Mile and other VoIP providers. By entering the Agreement, you agree to submit to us the physical location at which you will utilize our Services (the "Registered Location"). By providing us that information, should you use our Services to place a 911 call, your telephone number and Registered Location will be sent to the applicable public safety answering point serving your Registered Location. In the event your physical location changes, you must notify us. If you change your physical location and fail to notify us, your Registered Location will be sent to a public safety answering point near your old physical location. In addition, you may not be able to call 911 in the event of a broadband connection failure or loss of electrical power, or if the Agreement is terminated. Enclosed are warning stickers for you to distribute to your employees who will have access to our Service; these stickers should be placed on or near the Equipment. By signing below, you acknowledge having received and understood the information set forth herein. Registered Location: (Number and Street) (City, State,ZIP) 'BOIIBIT A • Page 8 of 8 _XHIBIT 1 ' lot 2' • Customer Number Invoice Number Bill Date CustonlerService 1-866-784-5561 Visit us at www.FirstMileUSAcom Email us at Into@FirstMileUSA.com . . (-Your Internet access information is: Account ID:F6'47003972 Access Code: 139004 .Summa_ry_of_Detalled_Charges_and Payments . ,i1(440 0). Wi e, gr ei rrii@[IAt tol iv l } ,__t?esst-;C llatf' kaga t4 $ 549.26 $ -145.60 $ 2,110.03 $ Z513.69 CURRENT ACTIVITY SUMMARY LONG DISTANCE.CHARGES 1,398.00 OTHER CHARGES AND CREDITS 174.49 TELEPHONE 2663.50 TAXES&REGULATORY _ 11.78 FINANCE CHARGES 6.05 SUBTOTAL. . . . $1,853.82 TAXES AND SURCHARGES FEDERAL TAX 2.42 STATE TAX 10.56 UNIVERSAL SERVICE FEE 24323 SUBTOTAL. . . . $256.21 - TOTAL NEW CHARGES . . . . $2,110.03 "'NOW AVAILABLE:BTN2GO,Fox News&Fax Business News on Watch TV Everywhere Goto www.firstmlle.net and dick on the Watch TV Everywhere fink to register. Please detach and realm mmtence stub with your payment. Please lriduda your sustainer number on your check Customer Number Invoice Number Bill Data Services provided by FirstMile Technologies Please remit payment to: FirstMile Technologies Payment due by 01/24/13 $2,513.69 P.O. Box 788 _. ..Westfield, IN 46074-0788 Amount Enclosed $ • moo-Bair C ) 24). Customer Number Invoice Number Bill Date Customer Service 1-866-784-5561 Visit us at www.FirstMieUSA.com -_ _ _.-- - -- - Email us at Info©FrstMileUSA.com • PAGE 2 IDetailed Charges for Service and Products Unit Priee partial Amount OTHER CHARGES AND CREDITS PORTPOE "-- MONTHLY 1 '31.24 31.24 CISCO 1800 ROUTER MONTHLY 1 29.75 29.75 PAPER BILLING MONTHLY 1 1.50 1.50 317 819-4250 F2-FAX MONTHLY 1 4.00 4.00 317 819.4274 EZ-FAX 1 MONTHLY 1 4.00 4.00 317 8194276 EZ-FAX MONTHLY 1 4.00 4.00 317 8194277 EZ-FAX MONTHLY 1 4.00 4.00 317 819-4279 . EZ-FAX MONTHLY 1 4.60 4.00 317 819-4280 EZ-FAX MONTHLY 1 4.00 4.00 EZ-FAX MONTHLY 1 4.00 4.00 317 819-7444 EZ-FAX , MONTHLY 1 4.00 4.00 317 819.7445 EZ-FAX MONTHLY 1 4.00 4.00 317 819-7446 EZ-FAX MONTHLY 1 4.00 • 4.00 • 317 819-7447 _ EZ-FAX MONTHLY 1 .4.00 4.00 317 819-7448 . EZ-FAX MONTHLY 1 4.00 , 4.00 317 819-7449 .- .. _. _, . EZ-FAX MONTHLY - 1 4.00 4.00 317 819-7450 EZ-FAX MONTHLY 1 4.00 4.00 EZ-FAX MONTHLY 1 4.00 4.00 317 819-7451 EZ-FAX MONTHLY 1 4.00 4.00 317 819-7452 ' EZ-FAX MONTHLY 1 4.00 4.00 317 819-7453 EZ-FAX MONTHLY 1 4.00 4.00 317 819-7454 EZ-FAX MONTHLY 1 4.00 4.00 0 317 819.7455 EZ-FAX MONTHLY 1 4,00 4.00