HomeMy WebLinkAbout2010-147 ES - Century Link for Embarq 911 Contract No. I OKCLI85X2VT
Products and Services Agreement
This Products and Services Agreement ("Agreement") between EMBARQ 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.
2. PURCHASE ORDERS. This Agreement controls over any Customer-issued purchase order, and any
terms or conditions contained in a Customer-issued purchase order or other Customer ordering document
will have no force or effect.
3. UNIFORM RESOURCE LOCATORS (URLS). References to URLs in this Agreement include any
successor URLs designated by CenturyLink.
4. ENTITY. EMBARQ has joined with CenturyTel to create a new communications company —
CenturyLink. While CenturyLink is the"doing business as"(d/b/a)name of the new company and is used
as a defined term in this Agreement,the entity with whom Customer is contracting is a former EMBARQ
company. For an interim period until all work is completed to update systems and platforms related to the
companies' combination, the name EMBARQ will be used in association with the products and services
provided by former EMBARQ companies. As a result,Customer will see references in this Agreement to
EMBARQ products and services and terms and conditions that continue to use the EMBARQ name.
AGREED:
EMBARQ SOLUTI S, C. Orange County Emergency Services
By: By:
Printed: pe. Printed:
Title: SSI ( Title: L4%
Date: O U Date:
9
Address for Sales Administration Billing P.O.B 8181
Notices: 665 Lexington Avenue Address: Hillsboro,NC 27278-8181
Mailstop:OHMANBO 107
Mansfield,OH 44907
And if related to a dispute to: Address
CenturyLink—Attn:VP,Commercial for Notices
Law (if different
5454 W. 110'Street from
Overland Park,KS 66211 above):
Sales Rep: Lee Canipe This instrument has been pre-audited in the manner required by the
Sales Rep Phone:(828)291-2775 Local Government Budget and Fiscal Control Act:
Financial Se ices Director's Signature: 1/.
Date: 171 t 0
#316721 Page 1 of 2 v.11.09-QuUSvc
Contract No. l0KCLI85X2VT
SERVICES LIST
1. SERVICES. CenturyLink will provide to Customer those Services identified in the CenturyLink Price
Quotes, attached and incorporated by this reference (each, a "Price Quote"). The name of the local
operating company providing Services to Customer is listed on each Price Quote. Services are purchased
on either a month-to-month basis or for a specific term for the particular Service ordered(each, an"Order
Term"), as listed in each Price Quote. 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.
CenturyLink Price Quote Number(s): 10-010422-02
2. PRICING.
2.1 Monthly Recurring Charges ("MRC"). CenturyLink will charge Customer the NIRCs for the
Services described in each Price Quote.
2.2 . Non-recurring Charges ("NRC"). CenturyLink may charge Customer NRCs related to the
Services described in each Price Quote.
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.At any time,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. CenturyLink provides Services under the applicable terms and conditions
listed and incorporated by reference on each Price Quote. 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 and incorporated by reference on each Price Quote. 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 EMBARQ Standard Terms and
Conditions for Communications Services, the Equipment Sales Product Annex, and other applicable
annexes based on Customer's selection of Products,all as posted to www.embarg.com/ratesandconditions.
#316721 Page 2 of 2 v.11.09-Qut/Svc
Attachment A
Proposal For
Orange County 911
12 Months Term Pricing
Printed On: 5-11-10
A PAC
CenturyUnk
V4�N7 Stronger Connected
Public Safety Regulated Services
Quote # SER 10-010422-02
Job Cost Worksheet
Quote Date 05-10-10 BAN 307692480
Sales Person Lee Canipe - 1067801 Contract #
Circuit ID Engineer Cory Deanhardt
PlantTestDate Expire Date 6-30-10
Due Date ASAP JCA Yes
Service Requested By:
Customer Orange County 911
Contact Craig Blackwood
Phone 919-245-6130
Customer Project Contact:
Customer Orange County 911
Contact Craig Blackwood
Phone 919-245-6130
Telco Project Contact:
Telco CenturyLink
Contact Lee Canipe
Phone (828) 431-7801
Location CKL #A, NA
Contact
Location CKL #B, NA
Contact
------------------------------------------------------------------------
------------------
Price Plan Feature Item Qty-M Monthly Extended NRC NOTES
Per Monthly
Service Charge
PP3635 3635 ANI 10 $ 56.30 $ 563.00 ANI IN
PP3632 3632 ALI 60 $ 28.10 $ 1,686.00 ALI IN
PP911SLRT 911SRT Selective Router 10 $ 77.50 $ 775.00 SR IN
PP3630 3630 DB Maint 60 $ 32.35 $ 1,941.00 DUP IN
PPQ392 Q392 Wireless SR 6 $ 61.90 $ 971.40
IN
Total monthly Charge $ 5,936.40
Remarks:
2010 annual True up and Contract Renewal. Please call Cory Deanhardt / primary (336-263-
5694) or Emmy Isbell / secondary (252-315-7158) with any questions.
Billing effective date is First day of January 2010.
Contract Date First day of January 2010
Payment Term:
12 Months
(CUSTOMER COPY) Revised 6/2006
These Standard Terms and Condition are not applicable to Embarq services governed by Tariffs on file with
the FCC or state regulatory authorities.Tariffs are located at www.embarq.com/ratesandeonditions.
EMBARQ 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 an Embarq-affiliated entity provides. "Agreement" refers to the
terms and conditions under which Customer purchases Embarq 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://www.embara.coin/ratesandconditions
(the"Rates and Conditions Website").
1.3 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 Embarq 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. "Term" or "Agreement Term" refers to the period defined in the Agreement during which Embarq
provides Products and Services to Customer.These Standard Terms and Conditions and relevant Schedules and
Product and Service-specific Annexes apply from the Effective Date until the Term expires or terminates.
Embarq will not accept Orders for Products and Services after expiration of the Term,but these Standard Terms
and Conditions and relevant Schedules or Product and Service-specific Annexes will continue to apply to
Orders properly placed during the Term. If Customer continues to use Embarq maintenance, managed, or
professional Services following the termination or expiration of the Term or an Order issued during the Term
for such Services, Embarq may, at its sole discretion, provide those Services on a time and material basis at
Embarq'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
www.emba�.com/ratesandconditions)will govern Embarq's provision of such Services.
3. CHARGES.
3.1 Embarq Charges. Customer will pay Embarq the rates and charges for Products and Services set forth
in the Agreement and any Order under the Agreement,including all charges associated with establishing
Customer's Products and Services or related to Embarq's installation or provisioning costs.
3.2 Fixed Rates and Percentage Discounts. Except as expressly stated otherwise in the Agreement, rates
and charges that are stated as a flat or fixed recurring or non-recurring charge will not change during the
Term if Embarq increases or decreases the list rate in a Schedule or price list.Rates and charges not fixed
in the Agreement will be based on current Schedules or price lists and may change during the Term. If
#280902 Pagel of 10 Rev.12.07
pricing in the Agreement is stated as a percentage discount off of a Schedule rate or list price, the
percentage discount is fixed for the Term, but Embarq 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.Embarq may impose additional fees, charges or surcharges on Customer to recover
amounts that Embarq is required or permitted by governmental or quasi-governmental authorities to
collect,or pay to others in support of statutory or regulatory programs, plus a commercially reasonable
amount to recover the administrative costs associated with such charges or programs.These charges may
include state and federal Carrier Universal Service Charges, compensation to payphone providers,
International Mobile Termination Charges,E911,Telephone Relay Service,or Wireless Number Pooling
or Wireless Local Number Portability surcharges.Embarq may impose additional charges or surcharges
to recover amounts Embarq is charged for terminating or originating a call to other wireless providers.
3.4 Taxes.
A. Taxes Not Included. Embarq'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 Embarq, Customer must notify
Embarq in writing.Embarq 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 Embarq will not be less than
the amount Embarq would have received without the required deduction or withholding.
C. Exclusions.Customer will not be responsible for payment of:
(1) Embarq's direct income taxes and employment taxes;and
(2) any other tax to the extent that Customer demonstrates a legitimate exemption under applicable
law.
4. BILLING AND PAYMENT.
4.1 Invoicing.
A. Commencement of Invoicing.Embarq 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 Embarq cannot install or make available the Products or Services by the delivery date
specified in the Order due to a Customer-caused delay,Embarq 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, Embarq bills fixed service
charges in advance,and usage-based charges in arrears.
D. Additional Invoice Information. Customer may make a written request to Embarq for additional
invoice-related information, including duplicate invoices, to the extent such information is
reasonably available in Embarq's sole discretion. Embarq may charge Customer for such
information. Customer may only request information from Embarq for the 12-month period
preceding the date of Customer's written request.
4.2 Payment and Late Charges.Customer must pay all undisputed amounts within 30 days from Embarq's
invoice date,unless otherwise defined in the Agreement.Customer's payments to Embarq must be in the
form of electronic funds transfer(via wire transfer or ACH)or paper check.Other than items subject to a
bona fide dispute,Embarq may charge 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
#280902 Page 2 of 10 Rev.12.07
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.Embarq's acceptance of
late or partial payments(even those marked, "Paid in Full")and late payment charges 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 Embarq 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 charge in good faith, Customer may withhold
payment of that charge if Customer(A)makes timely payment of all undisputed charges; and(B)within
30 days from Embarq's invoice date, provides Embarq with a written explanation of the reasons for
Customer's dispute of the charge. Customer must cooperate with Embarq to promptly resolve any
disputed charge. If Embarq determines, in good faith, that the disputed charge is valid, Embarq will
notify Customer and,within five business days of receiving notice,Customer must pay the charge.
5. CREDIT APPROVAL.Embarq's provision of Products and Services is subject to Embarq's credit approval of
Customer. As part of the credit approval process, Embarq may require Customer to provide a deposit or other
security. Additionally during the Term, if Customer's financial circumstance or payment history becomes
reasonably unacceptable to Embarq,Embarq may require adequate assurance of future payment as a condition
of continuing Embarq's provision of Products and Services. Customer's failure to provide adequate assurances
required by Embarq is a material breach of the Agreement.Embarq may provide Customer's payment history or
other billing/charge information to any credit reporting agency or industry clearinghouse.
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 Embarq.Orders are binding only upon acceptance in writing by Embarq.Embarq
will notify Customer of rejected Orders. Customer may cancel an Order at any time before Embarq
initiates delivery of Products and Services listed in the Order or otherwise begins performance, but
Customer must pay Embarq's costs resulting from Customer's cancellation, including costs specifically
described in the applicable Schedule or Product and Service-specific Annexes.
6.2 Cancellation. Embarq will notify Customer of rejected Orders. Customer may cancel an Order at any
time before Embarq delivers the Products and Services listed in the Order or begins its performance,but
Customer must pay any actual costs Embarq 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
AGREEMENT, PRODUCTS AND SERVICES ARE PROVIDED "AS IS." EMBARQ DISCLAIMS ALL
EXPRESS OR IMPLIED 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;EMBARQ-PROVIDED NETWORK MANAGEMENT.
8.1 Equipment or Software Not Provided by Embarq.Customer is responsible for any items not provided
by Embarq, including installation, operation, and maintenance of such equipment or software and any
equipment or software that impairs Product or Service quality or availability. Upon notice from Embarq
of such impairment, Customer will promptly cure the problem. Customer will continue to pay Embarq
for Products and Services during such impairment or related suspension.If the impairment interferes with
the use of the Embarq-provided network by Embarq or third parties,Embarq,in its reasonable discretion,
may suspend or disconnect the affected Products and Services without advance notice to Customer,
although Embarq will provide advance notice where practical. Customer will not rearrange,disconnect,
remove, or attempt to repair any Embarq-provided items. At Customer's request, Embarq will
troubleshoot the impairment at Embarq's then-current time and materials rates. Embarq is not liable if a
commercially reasonable change in Products or Services causes equipment or software not provided by
Embarq to become obsolete,require alteration,or perform at lower levels.
#280902 Page 3 of 10 Rev.12.07
8.2 Software License.
A. Licensing Requirements. Where software is provided with a Product or Service, Customer is
granted a non-exclusive and non-transferable license or sublicense to use the software,including any
related documentation, solely to enable Customer to use the Products and Services in accordance '
with the applicable licensing requirements. Software licensing terms and conditions, including end-
user licensing agreements and terms and conditions from Embarq's vendors, may be provided to
Customer through click or shrink-wrap agreements. Embarq 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.
8.3 Title to Software or Equipment. Embarq (or Embarq vendors, if applicable) retain title and property
rights to Embarq-provided software and equipment (excluding Products sold to Customer under the
Agreement), including copies, and any related patents, copyrights, trademarks, or IP addresses assigned
to Customer. Upon termination or expiration of the Agreement or an applicable Order, Customer will
surrender and immediately return the Embarq-provided equipment and software,including all copies,to
Embarq or will provide Embarq access to reclaim such equipment and software.
8.4 Network Management. Embarq reserves the right to perform preventative maintenance and software
upgrades to the Embarq-provided network at its sole discretion on a scheduled or as-needed basis.
Embarq may charge Customer where additional technical limitations or Embarq must construct network
facilities to provide Services to Customer.If software or equipment not provided by Embarq is connected
to Embarq-provided network facilities, Embarq's obligations relate only to the Services under the
Agreement.
9. USE OF NAME, SERVICE MARKS, TRADEMARKS. Neither party will use the name, service marks,
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 Embarq or its agents to install the Products and
Services. Customer is responsible for damage to Embarq-owned Products and Services located on
Customer premises, excluding reasonable wear and tear or damage caused by Embarq. Embarq 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 Embarq acceptable use policy posted to
htt p://www.embarg.conVratesandeonditions,as reasonably amended from time to time.
B. Abuse and Fraud. Customer will not use Products or Services: (1) for fraudulent, 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 Embarq's or
another's use of the Embarq-provided network. Customer will cooperate promptly with Embarq to
prevent third parties from gaining unauthorized access to the Products and Services via Customer's
facilities.
C. Resale.
(1) General Prohibition. Except to the extent permitted by state or federal law and regulations,
Customer will not resell Products and Services. Customer will not resell or lease wireless
Services or Products under any circumstances.
#280902 Page 4 of 10 Rev.12.07
(2) Exceptions.To the extent expressly permitted,Customer's resale of wireline Services is subject
to the Embarq Resale Terms and Conditions posted to the Rates and Conditions Website. An
Internet Service Provider("ISP")is a Customer that,directly or indirectly,provides third parties
with the use of Embarq-provided Internet access services in its ordinary course of business.
ISPs' provision of Embarq-provided Internet access to third parties is not prohibited by this
Section, but ISPs are subject to the Internet Service Providers Product Annex posted to the
Rates and Conditions Website.
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 Embarq 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 beach 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. Embarq's privacy policy, as amended from time to time, is available at
www.embarq.com.The privacy policy includes information about Embarq's customer information
practices and applies to the provisioning of Products and Services.
12. LIMITATIONS 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 early termination charges, and the
parties'indemnification obligations under the Agreement are 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 INDIRECT DAMAGES
INCLUDE, BUT ARE NOT LIMITED TO, LOST PROFITS, LOST REVENUES, AND LOSS OF
BUSINESS OPPORTUNITY, WHETHER OR NOT THE OTHER PARTY WAS AWARE OR
SHOULD HAVE BEEN AWARE OF THE POSSIBILITY OF THESE DAMAGES.
#280902 Page 5 of 10 Rev.12.07
12.3 Unauthorized Access and Hacldng.Except for physical damage to Customer's transmission facilities or
Customer premise equipment directly caused by Embarq's negligence or willful misconduct,Embarq 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 Embarq-provided network facilities or Customer premise
equipment.
12.4 Liability for Content. Embarq is not responsible for the content of any information transmitted,
accessed,or received by Customer through Embarq'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 Embarq,Embarq'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
Embarq 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 Embarq's
general qualification to conduct business;
B. Customer's transmissions,or transmissions by parties authorized by Customer,of,information,
data, or messages over the Embarq-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,hardware or software not provided by Embarq; and(3)based on transmission and
uploading of information that contains viruses, worms, or other destructive media or other
unlawful content;
C. Embarq's failure to pay any tax to the extent that Embarq relied on Customer's claimed
legitimate exemption under applicable law;
D. Customer's breach of software licensing requirements;and
E. Customer's failure to comply with the usage requirements in the Customer Responsibilities
Section of these Standard Terms and Conditions.
13.3 Embarq Indemnification.Embarq 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 Embarq's obligations under this Section will not apply if
the infringement or violation is caused by Customer's modification to Embarq-provided software,
equipment or Services; combination of Embarq-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 Embarq provides reasonable notice to Customer of
the infringement.For any third party claim that Embarq receives,or to minimize the potential for a claim,
Embarq may,at its sole option,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 Indemnified 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
#280902 Page 6 of 10 Rev.12.07
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 option,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.
13.5 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 Embarq Right to Terminate.
A. Embarq 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;or
(2) If Customer has vacated the premises to which Services are furnished;or
(3) Customer fails to cure any other material breach of the Agreement within 30 days after
receiving Embarq's written notice;or
(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;or
(5) Customer fails to comply with applicable law or regulation and Customer's noncompliance
prevents Embarq's performance under the Agreement.
B. If Embarq terminates the Agreement under this Section, Customer will be liable for any Products
and Services provided up to the date of termination,whether or not invoiced by the termination date,
as well as any applicable early termination liabilities.
14.2 Customer Right to Terminate.
A. Material Failure. If Embarq materially fails to provide a Product or Service and Embarq fails to
cure after Customer provides Embarq 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 Embarq's receipt of Customer's written
notice to terminate. Embarq's material failure does not include a failure caused by circumstances
outside Embarq's sole control, a failure caused by a third party access provider, a Force Majeure
Event,or Customer or Customer-provided software or equipment.
B. Termination for Convenience. Customer may terminate a Product or Service or the Agreement
during the Term by providing 60 days' written notice to Embarq.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 Term or, if applicable, an Order issued during the Term that
extends beyond the Tenn(unless due to Embarq's material failure), or Embarq terminates a Product
or Service or applicable Order as permitted under the Agreement, Customer will pay the following
early termination charges, which represent Embarq'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 Agreement or,if applicable, an Order issued during
the Term that extends beyond the Term, plus (b) a pro rata amount of any waived installation
charges, 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 Term or
applicable Order Term at the time of termination;and
#280902 Page 7 of 10 Rev.12.07
(2) Third Party Liability.Any liabilities imposed on Embarq by third parties, such as other local
exchange carriers and all nonrecoverable costs incurred by Embarq as a result of ordering
facilities required to operate the Product or Service,as a result of Customer's early termination.
B. Waiver of Early Termination Liability. With Embarq'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 charge for a Term at
least equal to the greater of:the remaining months in the Term or one year.
14.4 Disconnect Notice.Embarq will have up to 30 days to complete disconnection of a Service.To complete
disconnection, Customer must provide information required by Embarq. Customer's failure to provide
such information may delay or prevent the disconnection. Customer will be responsible for all charges
through the later of the 30`s day after Embarq 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; embargoes, 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 similar voting rights.
16.2 "Effective Date"is the date the last party signs the Agreement.
16.3 "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 Embarq, which
identifies specific Products and Services; quantity ordered; Embarq'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 acknowledgement, 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 Embarq as a separate item from,or bundled with,a Service.
16.5 "Product and Service-specific Annexes"refers to separate descriptions,terms and conditions for certain
non-tariffed Products and Services, including those offered under applicable Embarq local terms of
service in states that have withdrawn Tariffs for such Products and Services.Product and Service-specific
Annexes are incorporated into the Agreement.
16.6 "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 Embarq under the Agreement,
excluding Products.
16.7 "Schedules" are the terms and conditions governing Embarq's provision of certain interexchange
Services that were detariffed by order of the Federal Communication Commission ("FCC"). Embarq
Schedules are subject to change during the Term under the rules and authority of the FCC.Schedules are
posted to the Rates and Conditions Website.
16.8 "Tariffs" means the Embarq incumbent local exchange carrier, competitive local exchange carrier, or
intrastate interexchange carrier tariffs on record with the FCC or state regulatory authorities having
jurisdiction over those Services. Embarq Tariffs are subject to change during the Term under the rules
and authority of the relevant regulatory bodies. If, during the Term, Embarq entirely withdraws any
Tariff that applies to Services in the Agreement, the Tariff terms and conditions then in effect or the
#280902 Page 8 of 10 Rev.12.07
Embarq local terms of service will apply to the Services. Tariffs are posted to the Rates and Conditions
Website.
17. MISCELLANEOUS.
17.1 Independent Contractor.Embarq provides the Products and Services as an independent contractor.The
Agreement will not create an employer-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 Dispute Resolution.
A. Governing Law. THIS AGREEMENT AND THE RIGHTS AND OBLIGATIONS OF THE
PARTIES IS GOVERNED BY THE LAWS OF THE STATE OF KANSAS,WITHOUT REGARD
TO ITS CONFLICT OF LAWS PRINCIPLES.
B. Forum Selection.Any court proceeding brought by either party must be brought, as appropriate,in
Kansas District Court,located in Johnson County,Kansas, or in the United States District Court for
the District of Kansas in Kansas City, Kansas. Each party agrees to personal jurisdiction in either
court.
C. Waiver of Jury Trial.
(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
arbitration 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. sea. Any arbitration will be
held in the Overland Park, Kansas metropolitan area and be subject to the governing law
provision of these Standard Terms and Conditions. Discovery in the arbitration will be
governed by the Local Rules applicable in the United States District Court for the District of
Kansas.
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 Embarq'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,Embarq may assign the Agreement or an Order, in whole
or in part,without Customer's prior written consent.
17.7 Amendments and 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:
Embarq
Attn:Vice President,Commercial Law
5454 W. 110d'Street
Overland Park KS 66211
#280902 Page 9 of 10 Rev.12.07
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 Embarq.
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.
#280902 Page 10 of 10 Rev. 12.07
For use with Embarq Standard Terms and Conditions for Communications Services
("Standard Terms and Conditions").This Annex is not applicable to Embarq Services governed by Tariffs on
Me with the FCC or state regulatory authorities.
EMBARQ LOCAL GOVERNMENT CUSTOMER ANNEX
This Embarq 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 www.embUq.com/ratesandconditions.
1. Eligibility and Applicability. This Annex is available to all local governmental entities and agencies in
connection with the purchase of Embarq Products and Services sold under the Standard Terms and
Conditions. Embarq 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.
3.3. Notice.Customer will give Embarq written notice of any termination under this section at least 30
days before the Termination Date. At Embarq'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 Embarq 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 Embarq and may
contain Embarq trademarks, trade secrets, and other proprietary information. Embarq 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 Embarq 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 Embarq 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 Embarq provides the Products and Services, without regard to that State's conflict of
laws principles.
#276954v4 Rev.06.09
Account Manager: Lee Canipe
MSAG Contract#: 10KCLI85X2VT
ADDENDUM TO
CENTURYLINK CENTURION MAINTENANCE SERVICE ANNEX
Contemporaneously with entering into the Agreement, CenturyLink and Customer agree to the
following modification to the CenturyLink Centurion Maintenance Service Annex ("Annex").
1. Section 2.1 of the Annex is replaced with the following:
2.1 The Term for Services will have the duration ("Order Term") specified in
the applicable cover agreement or in a subsequent Order. The Term for
Services will commence on January 1 , 2010.
2. All terms of the Annex not modified by this Addendum will remain in full effect.
CenturyLink CUSTOMER
By: By:
Name: o e— o ly^ Name: Tram. W , d tiCin>1
Title: B",( eS / ktna eV' Title: ec'"1 .col el_
Date: Date: 1 A
This instrument has been pre-audited in the manner required by the Local Government Budget
and Fiscal Control Act:
Financial S rvices Director's Signature:
Date: l
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#206960 EMBARQ CONFIDENTIAL AND PROPRIETARY INFORMATION Rev.5.06