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HomeMy WebLinkAbout2015-142 IT - Time Warner Cable Business Class Optical Access Service Agreement Renewal Time Warner Cable Business Class Optical Access Service Agreement Cover Sheet This Business Class Optical Access Service Agreement is made by and between Time Warner Entertainment-Advance/Newhouse Partnership,d/b/a Time Warner Cable,through its Eastern Carolina Division("TWC")and the Customer below("Customer"). Contract#01523357 Customer: Orange County Information Systems Contact: Jim Northrup Address: 200 S Cameron St USA City:Hillsborough State: NC Zip:27278 Telephone#: (919)245-2285 Fax#: E-mail:jorthrup @co.orange.nc.us TWC: Contact: Kenneth Bearden Address: 101 Innovation Ave City: Morrisville State: NC Zip:27560 Telephone#: (919)654-7647 Fax#: (704)945-7449 E-mail: Kenneth.bearden @twcable.com Services: Subject to the terms and conditions of this Agreement, TWC shall provide Customer with a fiber optic Metro Ethernet connections as detailed in Exhibit A Monthly Recurring Fees:$10,265.00 Standard Installation Fee: $0.00 Change of Service Fee: $0.00 The fees set forth above do not include applicable taxes and other similar charges(as described more fully in the Time Warner Cable Business Class Optical Access Service Agreement Terms and Conditions)which may be part of the fee charged by TWC hereunder and which shall be the responsibility of the Customer as set forth in this Agreement. Initial Term of Service: 24 [months/years]from the date of TWC's Completion Notice(as defined herein). Term of Service:Is co-terminus with Contract##01523357 from February_,2015 through February_,2017 THIS BUSINESS CLASS OPTICAL ACCESS SERVICE AGREEMENT SHALL AT ALL TIMES BE SUBJECT TO THE TERMS AND CONDITIONS ATTACHED HERETO,WHICH TERMS AND CONDITIONS ARE HEREBY INCORPORATED HEREIN BY REFERENCE AND MADE A PART OF THIS AGREEMENT FOR ALL PURPOSES. BY EXECUTING THIS AGREEMENT, CUSTOMER ACKNOWLEDGES THAT CUSTOMER HAS READ AND AGREES TO BE BOUND BY SUCH TERMS AND CONDITIONS TO THE EXTENT ALLOWABLE UNDER NORTH CAROLINA LAW. CUSTOMER:Orange�ounty,NC TIME WARNE LE By: .• j.. . ...� By: Name: �n i �yYlS _ Name: Title: _ Title: Date: Dater TWC PROPRIETARY&CONFIDENTIAL RRMFSI 91 11790 Exhibit A Site Address Units Service Monthly IT Office Hub 131 W.Margaret Lane 1 1GIG Metro E $1685.00 1 100Mb DIA $2700.00 Whitted Building 300 W Tryon 1 100Mb Metro E $842.00 Carr Building 306 Revere Rd 1 50Mb Metro E $723.00 Southern Human Services 2501 Homestead Rd 1 100Mb Metro E $842.00 Tweeter 510 Meadowlands Dr 1 50Mb Metro E $723.00 Solid Waste 1207 Eubanks 1 50Mb Metro E $723.00 Public Works 600 Hwy 86N 1 10Mb Metro E $462.00 Skills Development 503 W.Franklin St 1 50Mb Metro E $723.00 Walmart-DSS 111 Mayo St 1 100Mb Metro E $842.00 $10,265.00 TWC BUSINESS CLASS PROPRIETARY&CONFIDENTIAL Error!Unknown document property name. Time Warner Cable Business Class Optical Access Service Agreement Terms and Conditions These terms and conditions,taken together with the Time Warner Cable Optical Access Service Agreement Cover Sheet signed by and between TWC and Customer ("Cover Sheet') shall constitute the agreement between TWC and Customer ("Agreement'). In consideration of the mutual promises and agreements made herein and intending to be legally bound,the parties agree as follows: 1. SERVICE. Subject to the terms and conditions of this Agreement,TWC shall provide Customer with a dedicated"Optical Access" service connection between Customer's facility and TWC's (or a TWC affiliate's) facility as further described on the Cover Sheet(the"Service"). TWC shall use commercially reasonable efforts to provide the Service 7 days a week,24 hours a day,excluding scheduled maintenance, required repair and events beyond TWC's reasonable control. TWC's provision of the Service is subject to availability. Customer may request changes to the Service upon the following terms and conditions: a. Bandwidth:Customer may make changes to the bandwidth subscription level at any service location as described on Exhibit A one time per month by providing a minimum of 30 days written notice;provided,however,that Customer shall pay the change fee and maintain a minimum net monthly recurring charge of$10,265 with respect to all service locations. b. Service Location Change:If Customer requires a Service to be transferred from any existing service location to a new service location, or requires the demarcation point to be moved within the existing service location, then (i) Customer will pay a non-recurring charge equal to TWC's equipment,engineering,and constructions costs as determined by TWC; (ii)the monthly recurring charge must be at least equal to or greater than the monthly recurring charge for the original service location, and (iii) the Term of this Agreement will remain unchanged with respect to the new service location. C. Addition of Service Locations: TWC acknowledges that during the Initial Term of this Agreement Customer may open new service locations. TWC will accommodate such changes so long as (i) each new service location is provisioned at a minimum of 10 Mbps at a minimum of$462 in net new monthly recurring charges, and(ii) Customer pays a non-recurring charge equal to TWC's equipment, engineering, and construction costs as determined by TWC to provide service to a new service location. The Term of this Agreement will remain unchanged with respect to the new service location(s). 2. INSTALLATION. Customer shall obtain and maintain throughout the Term(as defined in Section 5 below)such consents (including without limitation landlord and land owner consents) as are necessary to timely permit, and shall timely permit, TWC personnel to install, deliver, operate and maintain the Service and Equipment as contemplated herein at Customer's facilities. Customer shall permit TWC to access the Customer facilities during Customer's normal business hours, except in the event of emergency or a Service problem in which Customer may access the facilities outside of normal business hours upon as much notice as is practicable under the circumstances as needed to install, configure, upgrade, maintain or remove the Equipment and other service components collocated at Customer's facilities. Customer shall make and maintain throughout the Term all site preparations necessary to permit the installation, maintenance, and operation of the Service and any Equipment (as defined below) as specified by TWC. Provided that Customer properly performs all necessary site preparation and provides TWC with all required consents,TWC shall use commercially reasonable efforts to install the Service in accordance with a mutually agreed upon schedule. TWC shall provide Customer with a completion notice("Completion Notice")upon completion of the installation of the Service. The Completion Notice will detail the successful ping of each customer premise device ("TWC Testing"). Upon submission of the Completion Notice by TWC to Customer, TWC will invoice Customer, and Customer shall incur its applicable payment obligations, in accordance with Section 6 of this Agreement. Interconnection of the Service and Equipment with Customer's equipment will be performed by Customer. If additional testing, other than the TWC Testing, is required, TWC reserves the right to document and incorporate a change order,if appropriate,but TWC will not delay invoicing,and Customer's payment obligation shall not be delayed. 3. SUPPORT&MAINTENANCE. TWC shall use commercially reasonable efforts to maintain the TWC-provided and installed cabling, routers and other TWC-installed equipment, if any, (collectively, the "Equipment') used by TWC to provide the Service. TWC shall provide a telephone number and email address for inquiries and remote problem support for the Service. All such Customer support shall be provided to Customer's help desk personnel only. Customer is responsible for interfacing with its employees and end users. In no event shall TWC be responsible for providing such support for any network, equipment or software not provided and installed by TWC under this Agreement or for issues or problems beyond its direct control. Customer agrees to provide routine operational Service support for Equipment and service components collocated at Customer's facility,including without limitation by performing reboots,as requested by TWC. 4. CUSTOMER OBLIGATIONS. Customer's use of the Service(including all content transmitted via the Service)shall comply with all applicable laws and regulations and the terms of this Agreement. Customer agrees not to resell or make any use of the Service other than for Customer's internal business purposes. Customer agrees to use the Service solely for transmitting data in IP form. Customer shall maintain the Equipment free and clear of all liens and encumbrances and shall be responsible for loss or damage to the Equipment while at Customer's facilities. As between the parties, Customer is solely responsible for(a)all use(whether or not authorized)of the Service,which use shall be deemed Customer's use for purposes of this Agreement;and(b)all content that is stored TWC BUSINESS CLASS PROPRIETARY&CONFIDENTIAL Error!Unknown document property name. or transmitted via the Service. Customer shall not upload,post,transmit or otherwise make available on or via the Service any material (including any message or series of messages) that violates or infringes in any way upon the rights of others, that is unlawful, threatening, abusive, obstructive, harassing, libelous, invasive of privacy or publicity rights, that in the circumstances would be obscene or indecent, that constitutes hate speech, that is otherwise offensive or objectionable, or that encourages conduct that would constitute a criminal offense,give rise to civil liability or otherwise violate any law or regulation. TWC may demand that Customer remove within two(2)business days content that in its judgment violates these standards. If Customer does not remove such content within two(2)business days,then TWC may remove it without further notice. Customer agrees to conform its equipment and software to TWC's then-current network specifications and system requirements for the Service. 5. TERM. The Agreement shall be in effect commencing on the date signed by both parties on the Cover Sheet(the"Effective Date") and continuing through the Initial Term of Service set forth on the Cover Sheet, and unless terminated earlier in accordance with this Agreement,shall thereafter automatically renew on a month-to-month basis unless either party notifies the other party at least thirty (30) days prior to the expiration of the then-current term of such party's intent not to renew(the Initial Term and any renewal term collectively referred to as the "Term"). As of the date the Cover Sheet is signed by Customer, Customer is deemed to have ordered the Services and approved of TWC's initiation of the installation and construction process. Customer's termination rights thereafter shall be as set forth in Section 9 below. 6. PAYMENT. Customer agrees to pay TWC the one-time Service installation fee and monthly recurring Service fees (collectively the "Service Charges") set forth on the Cover Sheet in accordance with the following payment terms: Service Charges will be billed to Customer monthly in advance, in accordance with TWC's regular billing schedule and are payable within thirty(30) days after the date of invoice. TWC shall have the right to increase Service Charges after the Initial Term (i.e., during the month-to-month renewal outlined in Section 5)upon thirty(30)days advance written notice to Customer; and provided that Customer shall have the right,after the Initial Term,to terminate at any time upon fifteen(15)days written notice to TWC. TWC may charge a late fee for all overdue amounts. The late fee will be the lesser of 1'/�% or the highest rate chargeable by law. In addition to the foregoing, and all other available remedies, TWC may discontinue Customer's access to the Service in whole or in part, until such overdue amounts, together with interest, are paid. If Customer fails to pay Service Charges in a timely manner, TWC may require a security deposit,letter of credit,advance payment for Service or other reasonable assurances of payment from Customer. In the event use, sales or other taxes or government charges are applicable, Customer shall be responsible for all use, sales and other taxes and governmental charges applicable to the Service(which taxes and charges are not included in the Service Charges),except for taxes payable on TWC's net income. Customer shall pay all federal, state and local taxes, fees, charges, surcharges or similar exactions imposed on the Services that are the subject of this Agreement including but not limited to state and local sales and use taxes, telecommunications taxes, federal and state universal service fund fees and state and local regulatory fees to the extent applicable. Further,TWC shall have the right to recover from Customer the amount of any state or local fees or taxes imposed directly on TWC, TWC's services,or tax or fees measured on TWC's receipts,in the form of a surcharge included on Customer's invoice.TWC shall be responsible for and shall pay all taxes measured by TWC's net income.To the extent that a dispute arises as to which party is liable for taxes under this Agreement,Customer shall bear the burden of proof in showing that the tax is imposed upon TWC's net income. This burden may be satisfied by Customer producing written documentation from the jurisdiction imposing the tax indicating that the tax is based on TWC's net income. Customer shall be responsible for providing TWC any and all documentation substantiating a claim for exemption from taxes or fees prior to the date that services are first provided under this agreement. To the extent such documentation is held invalid for any reason, Customer agrees to reimburse TWC for any tax liability including related interest and penalties arising from such invalid documentation. 7. PROPRIETARY RIGHTS AND CONFIDENTIALITY. (a) TWC's ProprietarXRights. All materials,including,but not limited to,any Equipment(including related firmware), software,data or information developed or provided by TWC, any identifiers or passwords used to access the Service or otherwise provided by TWC,and any know-how,methodologies or processes including,but not limited to, all copyrights,trademarks, patents,trade secrets, any other proprietary rights inherent therein and appurtenant thereto, used by TWC to provide the Service (collectively "TWC Materials") shall remain the sole and exclusive property of TWC or its suppliers. Customer shall acquire no interest in the TWC Materials by virtue of the payments provided for herein. Customer may use the TWC Materials solely for Customer's use of the Service. Customer may not reproduce,modify or distribute the TWC Materials,or use them for the benefit of any third party except as required by the public record laws of the State of North Carolina. All rights in the TWC Materials not expressly granted to Customer are reserved to TWC.Customer will not open,alter,misuse,tamper with or remove the Equipment as and where installed by TWC,and will not remove any markings or labels from the Equipment indicating TWC(or its suppliers)ownership or serial numbers. (b) Confidentiality. Except to the extent disclosure is required by the public records laws of the State of North Carolina: (i)Customer agrees to maintain in confidence, and not to disclose to third parties or use, except for such use as is expressly permitted herein,the TWC Materials and any other information and materials provided by TWC in connection with this Agreement that are identified or marked as confidential or are otherwise reasonably understood to be confidential ("Confidential Information"), and (ii) Customer shall make no press release, public announcement or other public statements regarding this Agreement without TWC's prior written consent. Notwithstanding the foregoing,Customer agrees to notify TWC prior to disclosing any TWC Materials and/or Confidential Information, whether pursuant to a public records request or otherwise, in order to permit TWC to assess whether any exceptions apply that may permit TWC to withhold any requested TWC Materials or Confidential Information from disclosure. (c) Software. If software is provided to Customer hereunder, TWC grants Customer a limited, TWC BUSINESS CLASS PROPRIETARY&CONFIDENTIAL Error!Unknown document property name. non-exclusive and non-transferable license to use such software, in object code form only, solely for the purpose of using the Service for Customer's internal business purposes during the Term. 8. MONITORING AND MODIFICATIONS. TWC shall have the right,but not the obligation,to monitor traffic and content on its network, in its sole discretion, including through the use of automatic content filters (including without limitation Spam,virus, and adult language sniffers and filters). TWC shall have the right, but not the obligation, to upgrade, modify and enhance the Equipment(including related firmware)and the Service and take any action that TWC deems appropriate to protect the Service and its facilities. 9. TERMINATION. a. Either party may terminate this Agreement upon thirty(30)days written notice of the other party's material breach, provided that such material breach is not cured within such thirty(30)day period. TWC may terminate this Agreement in the event that TWC is unable to fulfill any obligation under this Agreement due to Customer's (or a Customer Employee's or Customer's branch office's)failure,or the failure of any owner or landlord controlling access or rights in or to the property in question,to allow TWC access to space,equipment or software at any time during the Term of this Agreement(referred to herein as an"Access Restriction"). In addition, in the event that Customer fails to comply with any laws or regulations applicable to the use of the Service,the terms of this Agreement,or the Terms of Use,TWC may suspend or discontinue Customer's Service in whole or in part upon ten (10) days advance notice; provided, however, that if Customer demonstrates that it is diligently pursuing a cure for such failure within thirty(30)days,then TWC will not suspend or discontinue Customer's Service. If Customer has not cured such failure within thirty(30)days,then TWC may suspend or discontinue Customer's Service without further notice. In the event of a suspension,TWC may require a reconnect charge to restart the suspended Service. b. Upon the termination or expiration of this Agreement:(a)TWC's obligations hereunder shall cease;(b)Customer promptly shall pay all amounts due and owing to TWC for Service delivered prior to the date of termination or expiration, if any; (c) Customer promptly shall cease all use of any software provided by TWC hereunder, and shall return such software to TWC; and (d) Customer shall return to TWC or permit TWC to remove, in TWC's sole discretion,the Equipment in the same condition as when received, ordinary wear and tear excepted. Customer shall be responsible for reimbursing TWC for the repair or replacement, at TWC's commercially reasonable discretion, of any Equipment not returned in accordance with this section. C. Notwithstanding anything to the contrary herein,upon early termination of this Agreement by Customer,or by TWC for Customer's breach, Customer shall promptly pay TWC, in TWC's discretion,a termination fee equal to the Service Charges that would have been due for the remainder of the Initial Term or the then-current renewal term, as applicable. For the avoidance of doubt, by signing the Cover Sheet, Customer is committing to procure the Services for the full Initial Term,unless Customer terminates this Agreement early pursuant to the first sentence of this Section 9 as a result of TWC's material uncured breach. Outside of that situation, if Customer, declines to receive or accept the Services, Customer will still be billed for such Services and shall still be obligated to pay for such Services. The parties agree that the remedies set forth herein for early termination are intended to establish liquidated damages in the event of such early termination, since damages in such an event are difficult or impossible to ascertain,and these remedies are not intended as a penalty. The foregoing shall be in addition to any other rights and remedies that TWC may have under this Agreement or at law or equity relating to Customer's material breach. d. Customer intends to fulfill this Agreement for the entire Term if funds are legally available to pay the Service Charges; provided, however,that Customer may terminate the Agreement,without a termination fee or penalty, if funds sufficient to pay the Customer's obligations under the Agreement are not appropriated. At least thirty(30)days prior to the end of the then-current fiscal year,Customer shall certify in writing that(i)funds have not been appropriated for the next fiscal period and(ii)such non-appropriation did not result from any act or failure by Customer. 10. INDEMNIFICATION. To the extent permitted by applicable law and Customer's insurance policies,Customer agrees to defend, indemnify and hold harmless TWC, its affiliates, its service providers and suppliers and their respective officers, directors, employees and agents, from and against all claims, liabilities, damages and expenses, including attorneys' and other professionals' fees, arising out of or relating to (i)the use of the Service, including but not limited to a breach of Section 4 herein; or(ii) personal injury or property damage caused by the gross negligence or willful misconduct of Customer or its employees or agents. TWC agrees to defend, indemnify and hold harmless Customer, its employees, officers and agents from and against all claims, liabilities,damages and expenses,including attorneys'and other professionals'fees,arising out of or relating to personal injury or property damage caused by the gross negligence or willful misconduct of TWC or its employees or agents. 11. DISCLAIMER OF WARRANTY. CUSTOMER ASSUMES TOTAL RESPONSIBILITY FOR USE OF THE SERVICE AND THE INTERNET AND ACCESSES THE SAME AT ITS OWN RISK. TWC EXERCISES NO CONTROL OVER AND HAS NO RESPONSIBILITY WHATSOEVER FOR THE CONTENT TRANSMITTED OR ACCESSIBLE THROUGH THE SERVICE OR THE INTERNET OR ACTIONS TAKEN ON THE INTERNET AND TWC EXPRESSLY DISCLAIMS ANY RESPONSIBILITY FOR SUCH CONTENT OR ACTIONS. EXCEPT AS SPECIFICALLY SET FORTH HEREIN,THE SERVICE AND RELATED EQUIPMENT AND/OR OTHER MATERIALS USED IN CONNECTION WITH THE SERVICE,IF ANY,ARE TWC BUSINESS CLASS PROPRIETARY&CONFIDENTIAL Eiror!Unknown document property name. PROVIDED WITHOUT WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO WARRANTIES OF TITLE,NONINFRINGEMENT, SYSTEM INTEGRATION,DATA ACCURACY, QUIET ENJOYMENT, MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. NO ADVICE OR INFORMATION GIVEN BY TWC, ITS AFFILIATES OR ITS CONTRACTORS OR THEIR RESPECTIVE EMPLOYEES SHALL CREATE ANY WARRANTY. TWC DOES NOT REPRESENT OR WARRANT THAT THE SERVICE WILL MEET CUSTOMER'S REQUIREMENTS, WILL PREVENT UNAUTHORIZED ACCESS BY THIRD PARTIES, WILL BE UNINTERRUPTED, SECURE OR ERROR FREE OR THAT ANY MINIMUM TRANSMISSION SPEED IS GUARANTEED AT ANY TIME. IN ADDITION, CUSTOMER ACKNOWLEDGES AND AGREES THAT TRANSMISSIONS OVER THE INTERNET MAY NOT BE SECURE. CUSTOMER FURTHER ACKNOWLEDGES AND AGREES THAT ANY MATERIAL AND/OR DATA UPLOADED, DOWNLOADED OR OTHERWISE OBTAINED THROUGH THE USE OF THE SERVICE IS DONE AT CUSTOMER'S OWN DISCRETION AND RISK AND THAT CUSTOMER WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO CUSTOMER'S COMPUTER SYSTEM OR LOSS OF DATA THAT RESULTS FROM THE UPLOADING, DOWNLOADING OR OTHER TRANSMISSION OF SUCH MATERIALS AND/OR DATA. IN ADDITION, CUSTOMER ACKNOWLEDGES AND AGREES THAT TWC'S THIRD PARTY SERVICE PROVIDERS DO NOT MAKE ANY WARRANTIES TO CUSTOMER UNDER THIS AGREEMENT, AND TWC DOES NOT MAKE ANY WARRANTIES ON BEHALF OF SUCH SERVICE PROVIDERS UNDER THIS AGREEMENT, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY,FITNESS FOR A PARTICULAR PURPOSE,NON-INFRINGEMENT, SYSTEM INTEGRATION,DATA ACCURACY OR QUIET ENJOYMENT. 12. LIMITATION OF LIABILITY. IN NO EVENT SHALL TWC BE LIABLE TO CUSTOMER OR TO ANY THIRD PARTY FOR ANY INCIDENTAL, INDIRECT, CONSEQUENTIAL, SPECIAL OR PUNITIVE DAMAGES ARISING OUT OF OR RELATING TO THIS AGREEMENT,REGARDLESS OF WHETHER TWC HAD BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THE AGGREGATE LIABILITY OF TWC TO CUSTOMER FOR ANY REASON AND ALL CAUSES OF ACTION ARISING OUT OF OR RELATING TO THIS AGREEMENT (INCLUDING, BUT NOT LIMITED TO, CONTRACT, TORT (INCLUDING NEGLIGENCE) AND STRICT PRODUCT LIABILITY) SHALL BE LIMITED TO THE FEES PAID BY CUSTOMER UNDER THIS AGREEMENT IN THE TWELVE (12)MONTHS PRECEDING THE DATE THE CLAIM ARISES. IN NO EVENT SHALL TWC'S AFFILIATES,THIRD PARTY SERVICE PROVIDERS OR SUPPLIERS HAVE ANY LIABILITY TO CUSTOMER HEREUNDER. THIS_S1CTION I2. SHAD L APPLY__TO THE_ EXTENT ALI,OWAB�E_UN�ER NORTH CAROLINA LA_W, 13. NOTIFICATIONS. Customer's privacy interests,including Customer's ability to limit disclosure of certain information to third parties, are addressed by, among other laws, the Federal Cable Communications Act (the "Cable Act") and the Electronic Communications Privacy Act. Personally identifiable information that may be collected, used or disclosed in accordance with applicable laws is described in the Subscriber Privacy Notice provided by TWC in writing,which is incorporated herein by reference. Customer acknowledges receipt of the Subscriber Privacy Notice. In addition to the foregoing, Customer hereby acknowledges and agrees that TWC may disclose Customer's and its employees'personally identifiable information as required by law or regulation or by the American Registry for Internet Numbers ("AKIN') or any similar agency. In addition to actions and disclosures specifically authorized by law or statute or authorized elsewhere in this Agreement, TWC shall have the right (except where prohibited by law notwithstanding Customer's consent), but not the obligation, to disclose any information: (i) to protect its rights, property and/or operations, (ii) in response to a subpoena, court order or government request, or(iii)where circumstances suggest that individual or public safety is in peril. Customer hereby consents to such actions or disclosures. 14. FORCE MAJEURE. TWC shall have no liability to Customer hereunder due to circumstances beyond its control, including,but not limited to,acts of God,terrorism,flood,fiber cuts,acts or omissions of other carriers,natural disaster,regulation or governmental acts, fire,civil disturbance, strike, weather, any unauthorized access to or destruction or modification of the Service, in whole or in part,any failure of heat, air conditioning,or power supply,or act or failure to act of Customer or any third party using the Service. 15. REGULATORY AND LEGAL CHANGES,POLE ATTACHMENT AND CONDUIT CHARGES,TARIFFS. In the event of any change in applicable law,regulation,decision,rule or order,including without limitation any increase in universal service fees or other goverment imposed charges,that increases the costs or other terms of delivery of Service to Customer,or,in the event of any increase in pole attachment or conduit charges applicable to any facilities used in providing the Service,Customer acknowledges and agrees that TWC may pass through to Customer any such increased costs,but only to the extent of the actual increase,provided TWC notifies Customer at least thirty(30)days in advance of the increase. In such case,and if such increase materially increases the fees due by Customer hereunder for the applicable Service, Customer may,within thirty(30) days after notification of such increase, terminate the affected Service without incurring termination liability, provided Customer notifies TWC at least fifteen (15) days in advance of the Customer's requested termination date.Further,in the event that TWC is required to file tariffs or rate schedules with a regulatory agency or otherwise publish rates in accordance with regulatory agency rules or policies respecting the delivery of the Service or any portion thereof, and under applicable law, TWC is required to apply those rates to Customer's purchase of Service under this Agreement,then the terms set forth in the applicable tariff or rate schedule shall govern TWC's delivery of,and Customer's consumption or use of, the Service. Customer may terminate upon thirty (30) days written notice to TWC and without liability any Service Order affected by such tariff if such tariff materially increases the fees due by Customer thereunder. In addition, if TWC determines that offering or providing the Service, or any part thereof, has become impracticable for legal or regulatory reasons or TWC BUSINESS CLASS PROPRIETARY&CONFIDENTIAL Error!Unkmo u document property name. circumstances,then TWC may terminate this Agreement as to any or all of the Service,and may terminate any affected Service Orders, without liability by giving Customer thirty (30) days prior written notice (ninety (90) days if during the Initial Term) or any such shorter notice as is required by law or regulation applicable to such determination. 16. ENTIRE AGREEMENT. This Agreement,including without limitation the Cover Sheet and all terms that are incorporated herein by this reference, sets forth the entire agreement between the parties with respect to the subject matter hereof and supersedes all previous written or oral agreements or representations between the parties with respect hereto. In the event that TWC permits a Customer to use its own standard purchase order form to order the Service, the parties hereby acknowledge and agree that the terms and conditions hereof shall prevail notwithstanding any variance with the terms and conditions of any purchase order submitted by Customer,and any different or additional terms contained in such purchase order shall have no force or effect. 17. MISCELLANEOUS. This Agreement shall be governed and construed in accordance with the laws of the State of North Carolina, excluding its conflicts of law principles. In the event that any portion of this Agreement is held to be invalid or unenforceable,the invalid or unenforceable portion shall be construed in accordance with applicable law as nearly as possible to reflect the original intentions of the parties set forth herein, and the remainder of this Agreement shall remain in full force and effect. No waiver of any breach or default hereunder shall be deemed to be a waiver of any preceding or subsequent breach or default. Customer may not assign this Agreement without the prior written consent of TWC,and any assignment in violation of this Section shall be null and void. TWC may assign its rights and obligations under this Agreement, including without limitation, in whole or in part,to any Time Warner Cable Inc. affiliated party without the prior written approval of or notice to Customer. All claims under this Agreement must be initiated not later than two years after the claim arose. There are no third party beneficiaries to this Agreement. Customer understands and agrees that,regardless of any such assignment,the rights and obligations of TWC herein may accrue to,or be fulfilled by, any TWC affiliate, including without limitation Road Runner HoldCo LLC, as well as by TWC and/or its subcontractors. The parties to this Agreement are independent contractors. Any notice under this Agreement shall be given in writing and shall be deemed to have been given when actually received by the other party. Notices shall be delivered to Customer and TWC at the respective addresses set forth above,or to such other address as is provided by one party to the other in writing. The provisions of Sections 6, 7, 9, 10, 11, 12 and 17 shall survive the termination or expiration of this Agreement. No modification of any provision of this Agreement shall be valid unless set forth in a written instrument signed by both parties. This Agreement may be executed in counterparts,each of which shall be deemed an original and all of which together shall constitute one and the same instrument. Notwithstanding anything herein to the contrary, any party to this Agreement(and each employee, representative,or other agent of such party)may disclose to any and all persons,without limitation of any kind,the tax treatment and tax structure of the transaction and all materials of any kind (including opinions and other tax analyses)that are provided to the party relating to such tax treatment and tax structure. CUSTOMER: , TWC: By. [� 17 .... ;� By. 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