HomeMy WebLinkAbout2011-191 EMS - CenturyLink Sales Solutions, Inc. for E911 Phone Records and Maintenance~' l~~f
Contract No. 11 OXONJODGNB
Products and Services Agreement
This Products and Services Agreement ("Agreement") between CENTURYLINK SALES SOLUTIONS, INC., as
contracting agent on behalf of the applicable affiliated entities providing the Products and Services ("CenturyLink")
and Orange County Emergency Services ("Customer") sets forth the terms and conditions for CenturyLink's
provision of those Products and Services to Customer.
1. SERVICES. CenturyLink will sell to Customer the Services listed on the Services List, attached and
incorporated by this reference. This Agreement is effective on the date all parties have signed below
("Effective Date") and continues for the longest Order Term listed on the Services List.
Z. PURCHASE ORDERS. This Agreement controls over any Customer-issued purchase order, and any
terms or conditions contained in aCustomer-issued purchase order or other Customer ordering document
will have no force or effect.
3. UNIFORM RESOURCE LOCATORS (iTRLS). References to URLs in this Agreement include any
successor URLs designated by CenturyLink.
4. ENTITY. EMBARQ and CenturyTel have joined to create a new communications company -
CenturyLink. For an interim period until all work is completed to update systems and platforms related to
the companies' combination, the names EMBARQ and CenturyTel may be used in association with the
products and services provided by CenturyLink. As a result, Customer may see references in this
Agreement to EMBARQ or CenturyTel products and services and terms and conditions that continue to use
the EMBARQ and CenturyTel names.
AGREED:
CENTURYLINK SALES SOLUTIONS, INC. Orange County ~ • ey-Services
sy: By_
Printed: Printed: -fit -
Title: Title: 9-ivi
Date: Date: ~ - 7 /
Address for Sales Administration Customer 911 SERVICES PO BOX 8181
Notices: 665 Lexington Avenue Address: HILLSBOROUGH, NC 27278-8181
Mailstop: OHMANB0107
Mansfield, OH 44907
And if related to a dispute to:
CenturyLink -Attn: Sr. Assistant
General Counsel, Commercial Law
5454 W. 110' Street
Overland Park, KS 66211
Address
for Notices
(if different
from
above):
Sales Rep: Lee Canipe
Sales Rep Phone: (828) 431-7801
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Contract No. 11 OXON7QDGNB
SERVICES LIST
1. SERVICES. Central Telephone Company will provide to Customer those Services identified below.
Services aze purchased on either amonth-to-month basis or for a specific term for the particulaz Service
ordered (each, an "Order Term"), as listed in the table below ("Price Table"). Each Order Term begins on
the first day of the first billing month after CenturyLink installs and makes that Service available to
Customer. If Customer continues to receive a Service after expiration of the Service's applicable Order
Term, CenturyLink will provide that Service on a month-to-month basis at its then-current list pricing and
then-current terms and conditions, unless the parties otherwise agree in writing.
Service Order Term
oaths Monthly
Recurrin Cha a Non-recurring
Char es
EMBARQ ANUALUSelective Routin 12 $6756.90 $0.00
$0.00 $0.00
$0.00 $0.00
$0.00 $0.00
$0.00 $0.00
-$0.00 $0.00
$0.00 $0.00
$0.00 $0.00
Centurion Quote:
2. PRICING.
2.1 Monthly Recurring Charges ("MRC") or Monthly Recurring Rates ("MRRs"). CenturyLink
will charge Customer the MRCs or MRRs for the Services described in the Price Table. For
purposes of this Agreement, MRCS and MRRs have the same meaning and may be used
interchangeably.
2.2 Non-recurring Charges ("NRC") or Non-recurring Rates ("NRRs"). CenturyLink will charge
Customer NRCs or NRRs related to the Services described in the Price Table. For purposes of
this Agreement, NRCs and NRRs have the same meaning and may be used interchangeably.
2.3 Additional Charges. Rates do not include applicable local, state, or federal taxes, fees, or
surcharges that CenturyLink may bill Customer.
2.4 Additional Payment Requirements. If Customer is not able to establish a satisfactory credit
rating with CenturyLink, CenturyLink, in its sole discretion, may require Customer to submit a
deposit or make an advance payment in connection with obtaining or maintaining the Services.
3. TERMS AND CONDITIONS.
3.1 CenturyLink provides local exchange carrier Services under its Tariffs, posted to
htty://about.centurylink.com/le al/rates conditions html. These Tariffs are filed with, and
approved by, respective federal and state regulatory commissions. CenturyLink may modify its
Tariffs from time to time. Tariffed rates are subject to change without notice.
3.2 For local exchange carrier Services that have been detariffed, CenturyLink provides those Services
under Local Terms of Service for Business Customers, posted to
httn://about.centurylink.com/le aUrates conditions html. Local Terms of Service for Business
Customers also will apply to any Service in the event CenturyLink withdraws its Tariffs in any
jurisdiction with respect to that Service. In such an instance, Local Terms of Service for Business
Customers apply to that Service on the later of the Effective Date or the date the withdrawal of
applicable Tariffs becomes effective.
#325187v.5 Page 2 of 3 07.10-TbUSvc
3.3 CenturyLink provides long distance Services under the Standard Terms and Conditions for
Communications Services and Schedules, all posted to
htto://about.centurylink.com/le~al/rates conditions html.
3.4 CenturyLink provides all other Services, including non-regulated Services, under the Standard
Terms and Conditions for Communications Services and relevant service-specific terms and
conditions, all posted to httn://about.centurylink.com/le~al/rates conditions html.
3.5 Except for Services provided under Tariffs, in the event of any inconsistencies or conflicts
between this Agreement and the applicable terms and conditions, this Agreement will take
precedence.
4. TERMINATION. If Customer gives notice of cancellation or termination, disconnects any portion of a
Service or otherwise breaches this Agreement resulting in the termination of a Service prior to the end of
the applicable Order Term, termination liability will apply as calculated and set forth in the applicable
terms and conditions listed in Section 3 above based for the Service cancelled or terminated. If no
termination liability is specified for Services in these terms and conditions, Customer will be liable for 50%
of the monthly payments that would otherwise remain in the applicable Order Term.
5. RELATED PRODUCT PURCHASES. Customer may purchase Products related to the Services at the
CenturyLink.then-current list pricing and subject to the then-current Standard Terms and Conditions for
Communications Services, the Equipment Sales Product Annex, and other applicable annexes based on
Customer's selection of Products, all posted to http://about.centurylink.com/leQaUrates conditions html.
#325187v.5 Page 3 of 3 07.10-TbUSvc
These Standard Terms and Conditions are not applicable to services governed by Tariffs on file with the FCC
or state regulatory authorities. Tariffs are located at htta://about.centurylink.com/legaUrates conditions.html.
STANDARD TERMS AND CONDITIONS
FOR COMMUNICATIONS SERVICES
("STANDARD TERMS AND CONDITIONS")
1. GENERAL.
1.1 Applicability. These Standard Terms and Conditions contain general provisions that apply to all
retail business .Products and Services that a CenturyLink-affiliated entity provides. "Agreement"
means the terms and conditions under which Customer purchases Products and Services, including
all attachments, these Standard Terms and Conditions, documents incorporated by reference, and
all related Order(s). Other capitalized terms are defined in this document or in the applicable
Schedules or Product and Service-specific Annexes.
1.2 Additional Terms and Conditions. Customer's purchase and use of Products and Services is
also governed by product and service-specific terms and conditions found in the applicable
Schedules and Product and Service-specific Annexes, posted to
http://about.centurylink.com/leeallrates conditions.html (the "Rates and Conditious
Website").
13 Local Governments and Programs.
A. Local Government Customers. Unless specified otherwise, purchases of Products or
Services by local governmental entities also are subject to the Local Government
Customer Annex posted to the Rates and Conditions Website.
B. Universal Service Administrative Company Programs. Customers seeking funds
through Universal Service Administrative Company programs such as the Schools and
Libraries Program of the Universal Service Fund ("E-Rate Program"), the Rural Health
Care .Program of the Universal Service Fund ("RHC Program"), or state or local
corollaries to the E-Rate Program or the RHC Program are subject to applicable program
annexes posted to the Rates and Conditions Website.
1.4 Conflicts Provision. If a conflict exists among provisions within the Agreement, specific terms
will control over general provisions, and negotiated or added terms, conditions or pricing will
control over standardized, posted or non-negotiated terms, conditions and pricing.
2. TERM.
2.1 Agreement Term The period set in the Agreement during which CenturyLink provides Products
and Services to Customer is defined as the "Agreement Term." These Standard Terms and
Conditions, relevant Schedules, and Product and Service-specific Annexes apply from the
Effective Date until the Agreement Term expires or terminates. CenturyLink will not accept
Orders for Products and Services after expiration of the Agreement Term, but these Standard
Terms and Conditions, relevant Schedules, or Product and Service-specific Annexes will continue
to apply to Orders properly placed during the Agreement Term. If Customer continues to use
maintenance, managed, or professional Services following the termination or expiration of the
Agreement Term or an Order issued during the Agreement Term for such Services, CenturyLink
may, at its sole discretion, provide those Services on a time and material basis at CenturyLink's
then-current rates without applying any discounts or credits under the Agreement, but these
Standard Terms and Conditions and the Time and Materials Product Annex (posted to the Rates
and Conditions Website) will govern CenturyLink's provision of such Services.
2.2 Order Term Customer purchases each Service for a specific term for the particular Service
ordered (each, an "Order Term"). Each Order Term is listed in the Agreement and begins on the
first day of the fast billing month after CenturyLink installs and makes that Service available to
Customer. If Customer continues to receive a Service after expiration of the Service's applicable
#280902v.10 Page 1 of 11 Rev. 115.10
Order Term, CenturyLink will provide that Service at its then-current list pricing and then-current
Standazd Terms and Conditions, relevant Schedules, and Product and Service-specific Annexes,
unless the parties otherwise agree in writing.
3. CHARGES.
3.1 CenturyLink Charges. Customer will pay CenturyLink the rates and chazges for Products and
Services set forth in the Agreement and any Order under the Agreement, including all chazges
associated with establishing Customer's Products and Services or related to CenturyLink's
installation or provisioning costs. Charges associated with establishing or provisioning Services
may include nonrecurring charges described in applicable Schedules and Product and Service-
specific Annexes. Examples of these nonrecurring charges are customer-initiated change requests,
expedite charges, service charges, any construction-related charges, and liabilities imposed on
CenturyLink by third parties, such as other local exchange carriers, as a result of ordering or
providing facilities to operate Services.
3.2 Fixed Rates and Percentage Discounts. Except as expressly stated otherwise in the Agreement,
rates and charges for a Product or Service that are stated as a flat or fixed recurring or non-
recumng change will not change during the applicable Order Term (for a Service) or Agreement
Term (for a Product) if CenturyLink increases or decreases the list rate in a Schedule or price list.
Rates and chazges for a Product or Service not fixed in the Agreement will be based on current
Schedules or price lists and may change during the Agreement Term. If pricing in the Agreement
for a Service is stated as a percentage discount off of a Schedule rate or list price, that percentage
discount is fixed for the applicable Order Term, but CenturyLink may modify the underlying rate
or list price to which the percentage discount is applied on no less than one day's notice. Changes
to Schedules are posted to the Rates and Conditions Website.
3.3 Rate Adjustments. CenturyLink may impose additional fees, chazges or surchazges on Customer
to recover amounts that CenturyLink is required or permitted by governmental or quasi-
governmental authorities to collect, or pay to others in support of, or to comply with, statutory or
regulatory programs, plus a commercially reasonable amount to recover the administrative costs
associated with such chazges or programs. The amount of these fees, chazges, or surchazges may
vary. These charges may include state and federal Carrier Universal Service Charges,
compensation to payphone providers, International Mobile Termination Chazges, E911, Telephone
Relay Service, or chazges assessed to CenturyLink for terminating or originating a call to wireless
providers.
3.4 Taxes.
A. Taxes Not Included. CenturyLink's rates and charges for Products and Services do not
include taxes. Customer will pay all taxes, including, but not limited to, sales, use, gross
receipts, excise, VAT, property, transaction, or other local, state, or national taxes or
charges imposed on or based upon the provision, sale or use of Products and Services.
B. Withholding Taxes. Notwithstanding any other provision of the Agreement, if Customer
is required by law to make a deduction or withholding from any amount due to
CenturyLink, Customer must notify CenturyLink in writing. CenturyLink will then
increase the gross amount of Customer's invoice so that, after Customer's deduction or
withholding for taxes, the net amount paid to CenturyLink will not be less than the
amount CenturyLink would have received without the required deduction or withholding.
C. Exclusions. Customer will not be responsible for payment of:
(1) CenturyLink's direct income taxes and employment taxes; and
(2) any other tax to the extent that Customer demonstrates a legitimate exemption
under applicable law.
#280902v.10 Page 2 of 11 Rev. 115.10
4. BILLING AND PAYMENT.
4.1 Invoicing.
A. Commencement of Invoicing. CenturyLink may begin invoicing Customer in full for
rates and charges on the later of:
(1) the date the Products or Services are installed and made available; or
(2) the first day of the first bill cycle after the Effective Date.
B. Delays. If CenturyLink cannot install or make available the Products or Services by the
delivery date specified in the Order due to aCustomer-caused delay, CenturyLink may
bill Customer as of the delivery date specified in the Order, or if no date is specified, any
time 30 days after the Effective Date.
C. Recurring Services, For recurring Services and nonrecurring charges, CenturyLink bills
fixed service charges in advance, and usage-based chazges in atreazs.
D. Additional Invoice Information. Customer may make a written request to CenturyLink
for additional invoice-related information, including duplicate invoices, to the extent such
information is reasonably available in CenturyLink's sole discretion. CenturyLink may
chazge Customer for such information. Customer may only request information from
CenturyLink for the 12-month period preceding the date of Customer's written request.
4.2 Payment and Late Charges. Unless otherwise defined in the Agreement, Customer must pay all
undisputed amounts by the due date listed on Customer's invoice, which may be up to 30 days
from the date of the invoice. Customer's payments to CenturyLink must be in the form of
electronic funds transfer (via wire transfer or ACID, cash payments (via previously-approved
CenturyLink processes only), or paper check. Other than items subject to a bona fide dispute,
CenturyLink may chazge a late fee (up to the maximum rate allowed by law) or take other action
to compel payment of past due amounts after written notice to Customer, including suspension or
termination of Services, unless prohibited by applicable law or regulation. Service that is
suspended or terminated for nonpayment may be subject to a reconnection charge. Customer may
not offset disputed amounts from one invoice against payments due on the same or another
account CenturyLink's acceptance of late or partial payments (even those mazked, "Paid in Full")
and late payment chazges is not a waiver of its right to collect the full amount due. Customer's
payment obligations include late charges and third party collection costs CenturyLink incurs,
including reasonable attorneys' fees, if Customer fails to cure its breach of these payment terms.
4.3 Disputed Invoice Charges. If Customer disputes a chazge in good faith, Customer may withhold
payment of that chazge if Customer makes timely payment of all undisputed charges within the
payment period described in Section 4.2, and provides CenturyLink with a written explanation of
the reasons for Customer's dispute of the chazge. Customer must cooperate .with CenturyLink to
promptly resolve any disputed charge. If CenturyLink determines, in good faith, that the disputed
charge is valid, CenturyLink will notify Customer and, within five business days of receiving
notice, Customer must pay the charge.
5. CREDIT APPROVAL. CenturyLink's provision of Products and Services is subject to CenturyLink's
credit approval of Customer. As part of the credit approval process, CenturyLink may require Customer to
provide a deposit or other security. Additionally during the Agreement Term, if Customer's financial
circumstance or payment history becomes reasonably unacceptable to CenturyLink, CenturyLink may
require adequate assurance of future payment as a condition of continuing CenturyLink's provision of
Products and Services. Customer's failure to provide adequate assurances required by CenturyLink is a
material breach of the Agreement. CenturyLink may provide Customer's payment history or other
billing/chazge information to any credit reporting agency or industry clearinghouse.
#280902v.10 Page 3 of 11 Rev. 115.10
6. ORDERS.
6.1 Application. The terms and conditions in any Orders will have no force or effect other than to
denote quantity and description of Products or Services, delivery destinations, delivery dates,
Customer billing addresses, installation addresses, the Agreement under which the Order is issued,
and any other information required by CenturyLink. Orders are binding only upon acceptance in
writing by CenturyLink. CenturyLink will notify Customer of rejected Orders. Customer may
cancel an Order at any time before CenturyLink initiates delivery of Products and Services listed
in the Order or otherwise begins performance, but Customer must pay CenturyLink's costs
resulting from Customer's cancellation, including costs specifically described in the applicable
Schedule or Product and Service-specific Annexes.
6.2 Cancellation. CenturyLink will notify Customer of rejected Orders. Customer may cancel an
Order at any time before CenturyLink delivers the Products and Services listed in the Order or
begins its performance, but Customer must pay any actual costs CenturyLink incurs due to
Customer's cancellation in addition to any amounts described in the applicable Product and
Service-specific Annexes.
7. WARRANTIES. EXCEPT AS, AND ONLY TO THE EXTENT EXPRESSLY PROVIDED IN THE
AGE, PRODUCTS AND SERVICES ARE PROVIDED "AS IS." CENTURYLINK
DISCLAIMS ALL EXPRESS OR I1vIPLIED WARRANTIES, INCLUDING ALL WARRANTIES OF
MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, INFRINGEMENT, AND
WARRANTIES RELATED TO EQUIPMENT, MATERIAL, SERVICES OR SOFTWARE.
8. EQUIPMENT AND SOFTWARE; CENTURYLINK-PROVIDED NETWORK MANAGEMENT.
8.1 Equipment or Software Not Provided by CenturyLink. Customer is responsible for any items
not provided by CenturyLink, including installation, operation, and maintenance of such
equipment or softwaze and any equipment or software that impairs Product or Service quality or
availability. Upon notice from CenturyLink of such impairment, Customer will promptly cure the
problem. Customer will continue to pay CenturyLink for Products and Services during such
impairment or related suspension. If the impairment interferes with the use of the CenturyLink-
provided network by CenturyLink or third parties, CenturyLink, in its reasonable discretion, may
suspend or disconnect the affected Products and Services without advance notice to Customer,
although CenturyLink will provide advance notice where practical. Customer will not rearrange,
disconnect, remove, or attempt to repair any CenturyLink-provided items. At Customer's request,
CenturyLink will troubleshoot the impairment at CenturyLink's then-current time and materials
rates. CenturyLink is not liable if a commercially reasonable change in Products or Services
causes equipment or software not provided by CenturyLink to become obsolete, require alteration,
or perform at lower levels.
8.2 Calls via Customer's Equipment or Software. Customer is responsible for all charges, including
any third-party charges, incurred for all types of calls, authorized or unauthorized, placed by or
through Customer's equipment or software via any remote access feature, transferring capability,
or call .forwarding, even when such calls are placed fraudulently. Customer's responsibility for
these chazges applies in all instances, including if Customer purchased or leased such equipment
or software by or through CenturyLink or purchased CenturyLink-provided maintenance for its
equipment or software. To reduce Customer's exposure, Customer may install its own blocking
techniques to stop such capabilities and calls. CenturyLink will neither install nor assist in the
.installation of such blocking techniques, and has no obligation to block these capabilities or
liability if such calls are placed, including no liability for chazges that Customer may incur.
8.3 Software License.
A. Licensing Requirements. Where software is provided with a Product or Service,
Customer is granted anon-exclusive and non-transferable license or sublicense to use the
#280902x.10 Page 4 of 11 Rev. 11.5.10
software, including any related documentation, solely to enable Customer to use the
Products and Services in accordance with the applicable licensing requirements. Software
licensing tenors .and conditions, including end-user licensing agreements and terms and
conditions from CenturyLink's vendors, may be provided to Customer through click or
shrink-wrap agreements. CenturyLink may suspend, block or terminate Customer's use
of any software if Customer fails to comply with any applicable licensing requirement.
B. Prohibitions. Customer is not granted any rights to use any software on behalf of third
parties or related to time share or service bureau activities. No rights are granted to source
code, and Customer will not reverse engineer, decompile, modify, enhance; copy, prepare
derivative works, or reproduce any software.
8.4 Title to Software or Equipment. CenturyLink (or CenturyLink vendors, if applicable) retain title
and property rights to CenturyLink-provided software and equipment (excluding Products sold to
Customer under the Agreement), including copies, and any related patents, copyrights, trademazks,
or IP addresses assigned to Customer. Upon termination or expiration of the Agreement or an
applicable Order, Customer will surrender and immediately return the CenturyLink-provided
equipment and software, including all copies, to CenturyLink or will provide CenturyLink access
to reclaim such equipment and software.
8S Network Management. CenturyLink reserves the right to perform preventative maintenance and
software upgrades to the CenturyLink-provided network at its sole discretion on a scheduled or as-
needed basis. CenturyLink may charge Customer where additional technical limitations or
CenturyLink must construct network facilities to provide Services to Customer. If softwaze or
equipment not provided by CenturyLink is connected to CenturyLink-provided network facilities,
CenturyLink's obligations relate only to the Services under the Agreement.
9. USE OF NAME, SERVICE MARKS, TRADF.MARK~. Neither party will use the name, service mazks,
trademarks, or carrier identification code of the other party or any of its Affiliates for any purpose without
the other party's prior written consent.
10. CUSTOMER RESPONSIBILITIES.
10.1 Installation. Customer will reasonably cooperate with CenturyLink or its agents to install the
Products and Services. Customer is responsible for damage to CenturyLink-owned Products and
Services located on Customer premises, excluding reasonable wear and teaz or damage caused by
CenturyLink. CenturyLink may refuse to install Products and Services or may discontinue and
disconnect Products and Services without notice, if any condition on Customer's premises is
unsafe or likely to cause injury to any person using Products and Services. Additional Customer
responsibilities relating to a particular Product or Service may be defined in the applicable
Schedules or Product and Service-specific Annexes.
10.2 Use of Products and Services.
A. Acceptable Use Policy. If Customer purchases Products or Services that connect to the
Internet, Customer must conform to the CenturyLink acceptable use policy posted to:
http://www.centurylink.com/Pases/AboutUs/Leeal, as reasonably amended from time to
time.
B. Abuse and Fraud. Customer will not use Products or Services: (1) for fraudulent,
abusive, unlawful or destructive purposes, including unauthorized or attempted
unauthorized access to, or alteration, abuse or destruction of, information; or (2) in any
manner that causes interference with CenturyLink's or another's use of the CenturyLink-
provided network. Customer will cooperate promptly with CenturyLink to prevent third
parties from gaining unauthorized access to the Products and Services via Customer's
facilities.
#280902v.10 Page 5 of 11 Rev. 115.10
C. Resale and Lease Prohibitions. Except to the extent expressly permitted by state or
federal law and regulations, Customer will not resell Products and Services. Customer
will not lease Products or Services under any circumstances.
11. CONFIDENTIALITY AND PRIVACY.
11.1 Nondisclosure Requirements. If the parties have not executed a mutual nondisclosure agreement,
this provision will govern their exchange of information. Each party will not disclose any
Confidential Information (defined below) received from the other party, or otherwise discovered
by the receiving party, to any third party, except as expressly permitted in the Agreement. This
obligation will continue until two years after the Agreement expires or terminates, Confidential
Information includes, but is not limited to, pricing and terms of the Agreement, and information
relating to the disclosing party's technology, business affairs, trade secrets, development and
research information, and marketing or sales plans (collectively the "Confidential Information").
The receiving party may disclose Confidential Information to its subsidiaries, Affiliates, agents
and consultants with a need to know, if they are not competitors of the disclosing party and are
subject to a confidentiality agreement at least as protective of the disclosing party's rights as this
provision. The parties will use Confidential Information only for the purpose of performing under
the Agreement or for the provision of other CenturyLink services. The foregoing restrictions on
use and disclosure of Confidential Information do not apply to information that: (A) is in the
possession of the receiving party at the time of its disclosure and is not otherwise subject to
obligations of confidentiality; (B) is or becomes publicly known, through no wrongful act or
omission of the receiving party; (C) is received without restriction from a third party free to
disclose it without obligation to the disclosing party; (D) is developed independently by the
receiving party without reference to the Confidential Information, or (E) is required to be
disclosed by law, regulation, or court or governmental order. The parties acknowledge that the
receiving party's unauthorized disclosure or use of Confidential Information may result in
irreparable harm. If there is a breach or threatened breach of the Agreement, the disclosing party
may seek a temporary restraining order and injunction to protect its Confidential Information. This
provision does not limit any other remedies available to either party. The party who breached or
threatened to breach its nondisclosure obligation under the Agreement will not raise the defense of
an adequate remedy at law.
11.2 Privacy.. CenturyLink's privacy policy, as amended from time to time, is available at
htto://www.centurvlink.com/Pa~es/AboutUs/Leg_al. The privacy policy includes information
about CenturyLink's customer information practices and applies to the provisioning of Products
and Services.
12. LIlVIITATIONS OF LIABILITY.
12.1 Direct Damages. Each party's maximum liability for damages caused by its failure(s) to perform
its obligations under the Agreement is limited to: (A) proven direct damages for claims arising out
of personal injury or death, or damage to real or personal property, caused by the party's negligent
or willful misconduct; and (B) proven direct damages for all other claims arising out of the
Agreement, not to exceed in the aggregate, in any 12-month period, an amount equal to
Customer's total net payments for the affected Products and Services purchased in the month
preceding the month in which the injury occurred. Customer's payment obligations, Customer's
liability for eazly termination charges, and the parties' indemnification obligations under the
Agreement aze excluded from this provision.
12.2 Consequential Damages. NEITHER PARTY WILL BE LIABLE FOR ANY
CONSEQUENTIAL, INCIDENTAL, OR INDIRECT DAMAGES FOR ANY CAUSE OF
ACTION, WHETHER IN CONTRACT OR TORT. CONSEQUENTIAL, INCIDENTAL, AND
INDRECT DAMAGES INCLUDE, BUT ARE NOT LIMITED TO, LOST PROFTTS, LOST
REVENUES, AND LOSS OF BUSINESS OPPORTUNITY, WHETHER OR NOT THE OTHER
#280902v.10 Page 6 of 11 Rev. 11.5.10
PARTY WAS AWARE OR SHOULD HAVE BEEN AWARE OF THE POSSIBILTTY OF
THESE DAMAGES.
12.3 Unauthorized Access and Hacking. Except for physical damage to Customer's transmission
facilities or Customer premise equipment directly caused by CenturyLink's negligence or willful
misconduct, CenturyLink is not responsible for unauthorized access to, or alteration, theft, or
destruction of, Customer's data, programs or other information through accident, wrongful means
or any other cause while such information is stored on or transmitted across CenturyLink-provided
network facilities or Customer premise equipment.
12.4 Liability for Content. CenturyLink is not responsible for the content of any information
transmitted, accessed, or received by Customer through CenturyLink's provision of the Products
and Services.
13. INDEMNIFICATION.
13.1 Mutual Indemnification for Personal Injury, Death or Damage to Personal Property. Each
party will indemnify and defend the other party, its directors, officers, employees, agents and their
successors from and against all third party claims for damages, losses, liabilities, or expenses,
including reasonable attorneys' fees, arising directly from performance of the Agreement and relating
to personal injury, death, or damage to tangible personal property that is alleged to have resulted,
in whole or in part, from the negligence or willful misconduct of the indemnifying party or its
subcontractors, directors, officers, employees or authorized agents.
13.2 Customer Indemnification. Customer will indemnify and defend CenturyLink, CenturyLink's
officers, directors, agents, and employees and their successors, against all third party claims for
damages, losses, liabilities or expenses, including reasonable attorneys' fees, arising out of:
A. Customer's failure to obtain required permits, licenses, or consents necessary to enable
CenturyLink to provide the Products and Services (e.g., landlord permissions or local
construction licenses). This provision does not include permits, licenses, or consents
related to CenturyLink's general qualification to conduct business;
B. Customer's transmissions, or transmissions by parties authorized by Customer, of,
information, data, or messages over the CenturyLink-provided network leading directly
or indirectly to third party claims: (1) for libel, slander, invasion of privacy, infringement
of copyright, and invasion or alteration of private records or data; (2) for infringement of
patents arising from the use of equipment, hazdwaze or softwaze not provided by
CenturyLink; and (3) based on transmission and uploading of information that contains
viruses, worms, or other destructive media or other unlawful content;
C. CenturyLink's failure to pay any tax to the extent that CenturyLink relied on Customer's
claimed legitimate exemption under applicable law;
D. Customer's breach of softwaze licensing requirements; and
E. Customer's failure to comply with the usage requirements in the Customer
Responsibilities Section of these Standazd Terms and Conditions.
13.3 CenturyLink Indemnification. CenturyLink will indemnify and defend Customer, Customer's
officers, directors, agents, and employees and their successors against third party claims
enforceable in the United States alleging that Services as provided infringe any third party United
States patent or copyright or contain misappropriated third party trade secrets. But CenturyLink's
obligations under this Section will not apply if the infringement or violation is caused by
Customer's modification to CenturyLink-provided software, equipment or Services; combination
#280902v.10 Page 7 of 11 Rev. 115.10
of CenturyLink-provided services or products with other services or products; functional or other
specifications that were provided by or requested by Customer; or Customer's continued use of
infringing Services after CenturyLink provides reasonable notice to Customer of the infringement.
For any third party claim that CenturyLink receives, or to minimize the potential for a claim,
CenturyLink may, at its sole optioq either:
A. procure the right for Customer to continue using the Services;
B. replace or modify the Services with comparable Services; or
C. terminate the Services.
13.4 Rights of IndemniSed Party. To be indemnified, the party seeking indemnification must
promptly notify the other party in writing of the claim (unless the other party already has notice of
the claim); give the indemnifying party full and complete authority, information and assistance for
the claim's defense and settlement; and not, by any act, admission, or acknowledgement,
materially prejudice the indemnifying party's ability to satisfactorily defend or settle the claim.
The indemnifying party will retain the right, at its option, to settle or defend the claim, at its own
expense and with its own counsel. The indemnified party will have the right, at its optioq to
participate in the settlement or defense of the claim, with its own counsel and at its own expense,
but the indemnifying party will retain sole control of the claim's settlement or defense.
13S Remedies. The foregoing provisions of this Section state the entire liability and obligations of the
indemnifying party and any of its Affiliates or licensors, and the exclusive remedy of the
indemnified party, with respect to the claims described in this Section.
14. TERMINATION.
14.1 CenturyLink Right to Terminate.
A. CenturyLink may immediately suspend or terminate Products or Services or the
Agreement if:
(1) Customer fails to cure its default of the payment terms in the Agreement;
(2) If Customer has vacated the premises to which Services aze furnished;
(3) Customer fails to cure any other material breach of the Agreement within 30
days after receiving CenturyLink's written notice;
(4) Customer provides false or deceptive information establishing, using or paying
for Services or Customer engages in false, deceptive, fraudulent, or harassing
activities when establishing, using or paying for Services;
(5) Customer fails to comply with applicable law or regulation and Customer's
noncompliance prevents CenturyLink's performance under the Agreement; or
(6) Customer resells Products or Services as prohibited by these Standazd Terms
and Conditions.
B. If CenturyLink terminates the Agreement under this Section, Customer will be liable for
any Products and Services provided up to the date of terminatioq whether or not invoiced
by the termination date, as well as any applicable early termination liabilities.
14.2 Customer Right to Terminate.
A. Material Failare. If CenturyLink materially fails to provide a Product or Service and
CenturyLink fails to cure after Customer provides CenturyLink with written notice of the
failure and a reasonable opportunity to cure within 30 days from receipt of notice,
Customer may terminate the affected Products or Services without early termination
liability 30 days after CenturyLink's receipt of Customer's written notice to terminate.
CenturyLink's material failure does not include a failure caused by circumstances outside
CenturyLink's sole control, a failure caused by a third party access provider, a Force
Majeure Event, or Customer or Customer-provided software or equipment.
#280902v.10 Page 8 of 11 Rev. 115.10
B. Termination for Convenience. Customer may terminate a Service during the applicable
Order Term, or the Agreement during the Agreement Term, by providing 60 days'
written notice to CenturyLink. In the case of such termination for convenience, Customer
will be liable for early termination fees set forth in the Agreement.
14.3 Early Termination Liability.
A. Calculation of Early Termination Liability. If Customer terminates a Product or
Service in whole or in part, before expiration of the applicable Order Term (unless due to
CenturyLink's material failure), or CenturyLink terminates a Product or Service or
applicable Order as permitted under the Agreement, Customer will pay the following
early termination charges, which represent CenturyLink's reasonable liquidated damages
and not a penalty:
(1) General Liability. A lump sum equal to (a) 50% of the applicable monthly
charges, multiplied by the number of months remaining in the applicable Order
Term, plus (b) a pro rata amount of any waived installation chazges, any credits
issued (excluding any service level credits issued for any Service outages), and
initialization fees waived based upon the number of months remaining in the
applicable Order Term at the time'of termination; and
(2) Third Party Liability. Any liabilities imposed on CenturyLink by third parties,
such as other local exchange carriers and all nonrecoverable costs incurred by
CenturyLink as a result of ordering facilities required to operate the Product or
Service, as a result of Customer's eazly termination.
B. Waiver of Early Termination Liability. With CenturyLink's written approval,
Customer will not be liable for the early termination liability described in this Section for
a Service if Customer purchases another Service at the same time with the same or
greater monthly recurring chazge for an Order Term. at least equal to the greater of: the
regaining months in the original Order Term or one yeaz.
14.4 Disconnect Notice. CenturyLink will have up to 30 days to complete disconnection of a Service.
To complete disconnection, Customer must provide information required by CenturyLink.
Customer's failure to provide such information may delay or~revent the disconnection. Customer
will be responsible for all chazges through the later of the 30 day after CenturyLink received the
disconnect notice, or the date Customer stops using the Services.
15. FORCE MAJEURE. Neither party will be responsible for any delay, interruption or other failure to
perform under the Agreement due to acts, events, and causes beyond the control of the responsible party (a
"Force Majeure Event"). Force Majeure Events include: natural disasters (e.g., lightning, earthquakes,
hurricanes, floods); wars, riots, terrorist activities, and civil commotions; inability to obtain parts or
equipment from third party suppliers; cable cuts by third parties, a local exchange carrier's activities, and
other acts of third parties; explosions and fires; embazgoes, strikes, and labor disputes; and governmental
decrees and any other cause beyond the reasonable control of a party.
16. DEFINITIONS.
16.1 "Affiliate" is a legal entity that directly or indirectly controls, is controlled by, or is under common
control with the party. An entity is considered to control another entity if it owns, directly or
indirectly, more than 50% of the total voting securities or other such similaz voting rights.
16.2 "Effective Date" is the date the last party signs the Agreement.
#280902v.10 - Page 9 of 11 Rev. 115.10
163 "Order" means a written, electronic or verbal order, or purchase order governed by the terms and
conditions of the Agreement, submitted or confirmed by Customer and accepted by CenturyLink,
which identifies specific Products and Services; quantity ordered; CenturyLink's Agreement
number, title; and execution date; billing address; ship to address; and service/installation address,
as applicable. Verbal Orders are deemed confirmed upon Customer's written acla~owledgement,
or Customer's use, of Products or Services.
16.4 "Product(s)" includes equipment, devices, hardware, software, cabling or other materials sold or
leased to Customer by or through CenturyLink as a separate item from, or bundled with, a Service.
16.5 "Product and Service-specific Annexes" refers to sepazate descriptions, terms and conditions for
certain non-tariffed Products and Services, including those offered under applicable CenturyLink
local terms of service in states that have withdrawn Tariffs for such Products and Services.
Product and Service-specific Annexes aze incorporated into the Agreement.
16.6 "Schedules" are the terms and conditions governing CenturyLink's provision of certain
interexchange Services that were detariffed by order of the Federal Communication Commission
("FCC"). CenturyLink Schedules aze subject to change during the Agreement Term under the
rules and authority of the FCC. Schedules aze posted to the Rates and Conditions Website.
16.7 "Service(s)" means wireline and wireless business communications services that are not governed
by Tariffs, including basic or telecommunications services, information or other enhanced
services, and non-regulated professional services provided to Customer by or through
CenturyLink under the Agreement, excluding Products.
16.8 `Tariffs" means the CenturyLink incumbent local exchange carrier, competitive local exchange
tamer, or intrastate interexchange carrier tariffs on record with the FCC or state regulatory
authorities having jurisdiction over those Services. Tariffs are subject to change during the
Agreement Term under the rules and authority of the relevant regulatory bodies.
17. MISCELLANEOUS.
17.1 Independent Contractor. CenturyLink provides the Products and Services as an independent
contractor. The Agreement will not create anemployer.-employee relationship, association, joint
venture, partnership, or other form of legal entity or business enterprise between the parties, their
agents, employees or affiliates.
17.2 No Waiver of Rights. The failure to exercise any right under the Agreement does not constitute a
waiver of the party's right to exercise that right or any other right in the future.
17.3 No Third Party Beneficiaries. The Agreement's benefits do not extend to any third party.
17.4 Governing Law; Dispute Resolution
A. Governing Law. THIS AGREEMENT AND THE RIGHTS AND OBLIGATIONS OF
THE PARTIES IS GOVERNED BY THE LAWS OF THE STATE OF LOUISIANA,
WITHOUT REGARD TO ITS CONFLICT OF LAWS PRINCIPLES.
B. Forum Selection. Any court proceeding brought by either party must be brought, as
appropriate, in the 4`" Judicial District Court of Louisiana, located in Ouachita Parish,
Louisiana, or in the United States District Court for the Western District of Louisiana in
Alexandra, Louisiana. Each parry agrees to personal jurisdiction in either court.
C. Waiver of Jury Trial.
#280902v.10 Page 10 of 11 Rev. 115.10
(1) EACH PARTY WAIVES ITS RIGHT TO A JURY TRIAL IN ANY
COURT ACTION ARISING AMONG THE PARTIES, WHETHER
UNDER THIS AGREEMENT OR OTHERWISE, AND WHETHER
MADE BY CLAIM, COUNTER-CLAIM, THIRD PARTY CLAIM OR
OTHERWISE. '
(2) If for any reason the jury waiver is held to be unenforceable, the parties agree to
binding abbitration for any dispute arising out of this Agreement or any claim
arising under any federal, state, or local statutes, laws or regulations, under the
applicable commercial rules of the CPR Institute for Dispute Resolution and 9
U.S.C. § 1, et. s .Any arbitration will be held in the Monroe, Louisiana
metropolitan azea and be subject to the governing law provision of these
Standard Terms and Conditions. Discovery in the abbitration will be governed
by the Local Rules applicable in the United States District Court for the Western
District of Louisiana. Judgment upon the arbitration award may be entered in
any court having jurisdiction.
17.5 Compliance with Laws. Each party agrees that it will comply with all applicable laws in
performing its obligations under the Agreement.'
17.6 Assignment. Customer may not assign any rights or obligations under the Agreement or an Order
without CenturyLink's prior written consent, except that Customer may assign the Agreement,
after 30 days prior written notice, to an Affiliate or an entity that has purchased all or substantially
all of Customer's assets. Following written notice to Customer, CenturyLink may assign the
Agreement or an Order, in whole or in part, without Customer's prior written consent.
17.7 Amendments aad Alterations. The Agreement may only be amended in a writing signed by both
parties' authorized representatives. Alterations to the Agreement are not valid unless accepted in
writing by authorized representatives of both parties.
17.8 Notice. Notices required under the Agreement must be submitted in writing to the party's address
for notice listed in the Agreement or Order and, in the case of a dispute, notices must also be sent
to:
CenturyLink
Attn: Senior Assistant General Counsel, Commercial Law
5454 W. 110`s Street
Overland Park KS 66211
17.9 Severability. If any provision of the Agreement is found to be unenforceable, the Agreement's
unaffected provisions will remain in effect and the parties will negotiate a mutually acceptable
replacement provision consistent with the parties' original intent.
17.10 URLs and Successor URLs. References to Uniform Resource Locators (URLs) in the Agreement
include any successor URLs designated by CenturyLink.
17.11 Survivability. The terms and conditions of the Agreement regarding confidentiality,
indemnification, warranties, payment, dispute resolution and all others that by their sense and
context are intended to survive the expiration of the Agreement will survive.
17.12 Entire Agreement. This Agreement, including all referenced documents, annexes, Schedules, or
exhibits, the related Orders and the parties' mutual nondisclosure agreement constitutes the entire
agreement and understanding between the parties and supersedes all prior or contemporaneous
negotiations or agreements, whether oral or written, relating to its subject matter.
#280902v.10 Page i l of 11 Rev. 11.5.10
Proposal For
Orange County 911
12 Moatha Term Pricing
Printed On: 2-2-11
Public Safety Regulated Services
Quote 1- SER 11-002737-02
sob cost worksheet
Quote Date 2-2-11
Sales Person Lee Canipe - 1067801
Circuit ID
P1antTestDate
Due Date ASAP
BAN
Contract ~
Engineer
Expire Date
JCA
E' ~~
CenturyLink°
<~ ~~` Stronger Connected ---
307692480
Cory Deanhardt
4-2-11
Yes
Service Requested By:
Customer Orange County 911
Contact Craig Blackwood
Phone 919-245-6130
Customer Project Coatact:
Customer Orange County 911
Contact Craig Blackwood
Phone 919-245-6130
Telco Project Contact:
Telco CenturyLink
Contact Lee Canipe
Phone (828) 431-7801
Location CRL #A, NA
Contact
Locatioa CKL ~8, 11A
Contact
-------------
Price Plan
Feature
Item
Qty-M
Monthly -
Extended NRC NOTES
Per Monthly
Service Charge
PP3635 3635 ANI 8 $56.30 S 450.40
PP3632 3632 ALI 78 528.10 $ 2,191.80
PP911SLRT 911SRT Selective Router 8 $77.50 S 620.00
PP3630 3630 DB Maint 78 $32.35 S 2.523.30
$ 971.40
PPQ392 Q392 Wireless SR 6 $161.90
Total monthly Charge $ 6,756.90
Remarks:
Annual True up and Contract Rene~ral. Please call Cory Deanhardt / primary (336-263-5694)
or Emmy Isbell / secondary (252-315-7158) vrith any questions.
Payment Term:
12 Months
(CUSTOMER COPY) ~~ ~~
For use with Standard Terms and Conditions for Communications Services ("Standard Terms and
Conditions"). This Annex is not applicable to Services governed by Tariffs on file with the FCC or state
regulatory authorities.
CENTURYLINK LOCAL GOVERNMENT CUSTOMER ANNEX
This CenturyLink Local Government Customer-Annex ("Annex"), together with the applicable cover agreement,
modifies the Standard Terms and Conditions. This Annex takes precedence over all other conflicting terms and
conditions of the Agreement. When attached to the applicable cover agreement, this Annex supersedes the version
posted at http://about.centurvlink.com/legaUrates conditions.html.
1. Eligibility and Applicability. This Annex is available to all local governmental entities and agencies in
connection with the purchase of Products and Services sold under the Standard Teens and Conditions.
CenturyLink defines "local governmental entities and agencies" as local entities and agencies, specifically
excluding all state and federal entities and agencies, that receive their primary funding support through the
allocation of appropriated public funds and are entitled to exercise sovereign rights and privileges.
2. Indemnity. Customer will honor all indemnity provisions under the Agreement only to the maximum
extent permitted by applicable law. No section of the Agreement is intended to create a waiver of
Customer's rights or privileges as a sovereign entity.
3. Nonappropriation.
3.1. Definition. A "nonappropriation" occurs when Customer is unable to secure or allocate sufficient
funds in its operating budget to fulfill its financial obligations under the Agreement.
3.2. Effect. If a nonappropriation occurs during the Term, Customer may terminate the Agreement at
the end of the then-current fiscal period ("Termination Date") without incurring any termination
liability. Customer will not be obligated for payments for any fiscal period after the Termination
Date.
33. Notice. Customer will give CenturyLink written notice of any termination under this section at
least 30 days before the Termination Date. At CenturyLink's request, Customer will promptly
provide supplemental documentation about the nonappropriation.
3.4. Limitations.
A. Customer must take all necessary action to budget and secure any funds required to fulfill
its contractual obligations for each fiscal year during the Term, including the exhaustion
of all available administrative appeals if funding is initially denied.
B. If Customer terminates the Agreement under this provision, Customer will not obtain the
Services described in the Agreement from CenturyLink or from any other provider for a
period of 180 days after the Termination Date. This obligation will survive termination of
the Agreement for nonappropriation.
4. Damages. The Agreement does not create an obligation by Customer to pay any damages in excess of
those amounts legally available to satisfy Customer's obligations under the Agreement.
5. Ownership and Confidentiality. The Agreement is a copyrighted work authored by CenturyLink and may
contain CenturyLink trademarks, trade secrets, and other proprietary information. CenturyLink
acknowledges that the Agreement may be subject to disclosure in whole or in part under applicable
Freedom of Information, Open Records, or Sunshine laws and regulations (collectively, "FOI"). Customer
will provide CenturyLink with prompt notice of any intended FOI disclosures or post-execution FOI
requests, citations to or copies of applicable FOI for review, and an appropriate opportunity to seek
protection of CenturyLink confidential and proprietary information consistent with all applicable laws and
regulations.
6. Governing Law. The Agreement and the rights and obligations of the parties are governed by the laws of
the U.S. State where CenturyLink provides the Products and Services, without regard to that State's
conflict of laws principles.
#276954v5 Rev. 06.10