HomeMy WebLinkAboutresolution.council.120-18 RESOLUTION #120
(Series of 2018)
A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF ASPEN,
COLORADO, APPROVING A CONTRACT BETWEEN THE CITY OF ASPEN
AND MAMMOTH NETWORKS AUTHORIZING THE CITY MANAGER TO
EXECUTE SAID CONTRACT ON BEHALF OF THE CITY OF ASPEN,
COLORADO.
WHEREAS, there has been submitted to the City Council a contract for
broadband services between the City of Aspen and Mammoth Networks, a true
and accurate copy of which is attached hereto as Exhibit "A";
NOW, THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF
THE CITY OF ASPEN, COLORADO, .
That the City Council of the City of Aspen hereby approves that Contract
for Broadband Services between the City of Aspen and Mammoth Networks, a
copy of which is annexed hereto and incorporated herein, and does hereby
authorize the City Manager to execute said agreement on behalf of the City of
Aspen.
INTRODUCED, READ AND ADOPTED by the City Council of the City of
Aspen on the 13`h day of August, 2018.
Steven Ska on, Mayor
I, Linda Manning, duly appointed and acting City Clerk do certify that the
foregoing is a true and accurate copy of that resolution adopted by the City
Council of the City of Aspen, Colorado, at a meeting held, August 13, 2018.
c
inda Manning, City C f
rk
Mammoth Networks Services Agreement
This agreement for carrier services (hereinafter"Service"), including the attached Service
Order(s)(collectively referred to herein as the"Agreement")is made between Visionary
Communications Inc., dba Mammoth Networks,a Wyoming corporation(hereinafter"Mammoth"),
having offices at 1001 S Douglas Hwy, Suite 201, Gillette WY 82716,telephone number 307-685-
5557 and City of Aspen, (hereinafter"Customer"), having offices at 130 S. Galena Street,Aspen,
Colorado.
In order to be eligible to receive the terms and conditions contained in the Agreement, the
Agreement must be signed and returned to Mammoth within thirty(30)business days from the
date Agreement was sent for Customer signature. Following execution of the Agreement by
Mammoth, the fully executed Agreement shall be sent to the Customer via preferred method,as
defined in the Notice section of this Agreement.
The undersigned Parties have read and agree to the terms and conditions set forth in the
Agreement.This Agreement, its exhibits and appendices and any documents expressly referred
to in this Agreement constitute the entire agreement between the Parties and supersede all prior
understandings and agreements,whether written or oral,that may relate to the subject matter of
this Agreement.
Should any provision of this Agreement be held by a court of competent jurisdiction to be illegal,
invalid or unenforceable,such provision shall be deemed modified to the extent necessary
(consistent with the intent of the Parties)to eliminate the illegal, invalid or unenforceable effect or
to delete such provision if modification is not feasible, and the remaining terms shall continue in
full force and effect.
This Agreement may be executed by the Parties in separate counterparts,each of which,when
so executed and delivered, shall be an original, but all such counterparts shall together constitute
one and the same Agreement. Facsimile signatures shall be deemed to be,and shall constitute
and be treated as an original signed Agreement or counterpart.
In witness thereof,the Parties have caused this Agreement to be signed by their duly authorized
representatives.
Visionary Communications Inc
City of en ' oa"sa�e
By: til/Jsr�+-� By:
E
Jina �iRQand
F151ElN7CSE487...
Name: 574a � Name: Gina Dillard
Title: C.�{j /7."+-.�, Title: VP of operations
Date: C-- ( ` Date: 8/7/2018 10:58:09 AM PDT
Notice Address: Notice Address:
130 S. Galena Street
Aspen, Colorado Visionary Communications Inc
1001 S Douglas Hwy, Suite 201
Billing Address:Same as Above Gillette WY 82717-2799
Billing Contact Paul Schultz Attn: Contract Management
pau 1.sch ultz(d)citvofas pen.com
970-429-1751
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1.0 Definitions "Parties"means, collectively, Mammoth and
Customer.
"CPE"means Customer Premises
Equipment used at the End User location or "Past Due Date"shall mean the first
Customer location in conjunction with a business day that is thirty(30)calendar days
Service. from the invoice date.
"Customer Equipment"means CPE other "Service Order means the order forth
than CPE for which Mammoth has agreed representing a specific Service to be
[n a Service Order)to assume maintenance provided for a defined period to the
responsibility. Customer.
"Due Date"shall mean thirty(30)calendar "Service Start Date"or"Ready for Service
days from the invoice date. Date"means five(5)calendar days after
Service activation by Mammoth.
"Effective Date"means the date this
Agreement is fully signed by both Mammoth "Service"or"Services"means the underlying
and Customer. product used to provide telecommunications
and data transport to the Customer.
"End User means Customers clients or any
third party who utilizes or accesses the "SLA"means the Service Level Agreements
Services or Mammoth's network via the associated with Services under this
Services provided hereunder. Agreement as specified on Appendices B,
C, D and E to this Agreement.
"Firm Order Commitment Date" means the
date where the local exchange carrier or 'Termination Liability Charges" means(i)all
fiber provider will commit to having the previously-waived NRC for an applicable
circuit provisioned and available for use. Service Order, (ii)all Monthly Recurring
Costs(MRC)for any remaining months in
"Force Majeure"means an unforeseeable the first twelve(12)months of the term of
event beyond the reasonable control of that the then applicable Service Order Tenn, if
Party, including without limitation:act of any, and(iii)fifty percent(50%)of the MRC
God,fire,flood, labor strike, sabotage, cable for the remaining months beyond the first
cut not caused by Mammoth or its twelve (12)months of the then applicable
underlying carrier, acts of terror, government Service Order Term.
laws or regulations,war or civil disorder.
Fund Availability. Financial obligations of
"MRC"means the monthly recurring cost of the City payable after the current fiscal year
a Service,which will be as set forth on are contingent upon funds for that purpose
Appendix A or as agreed upon by the being appropriated, budgeted and otherwise
Parties and documented on a Service Order, made available
as applicable.
"Undisputed Payment"means the amount of
"NRC"means a one-time, non-recurring cost an invoice with respect to which Customer
with respect to a Service,which will be as has not properly and timely submitted a
set forth on Appendix A or as agreed upon billing dispute.
by the Parties and documented on each
Service Order, as applicable. 2.0 Terms and Conditions
"Outage Credit" means a credit specified 2.1 This Agreement sets forth the terms and
and issued in accordance with the terms of conditions under which Mammoth shall
Appendices B, C, D and E to this Agreement provide Services to Customer, as further
that is applied to reduce amounts otherwise specified on the Service Order for individual
due from Customer to Mammoth for Services ordered by Customer. The terms
Services provided under this Agreement. of any active Service Orders shall
supersede any inconsistent terms and
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conditions contained in this Agreement Services.
when specifically denoted in the Service
Description. 3.0 Invoicing
2.2 This Agreement shall not be modified or 3.1 Procedure Customer shall be invoiced
amended except via written instrument by email and/or via U.S. Postal or courier
agreeable to both Parties. In the event a service at Customer preference each month
conflict exists between this Agreement and in advance of Service,for all amounts due
terms of any Amendment hereto,the term in and owing to Mammoth. Payments are due
the Amendment shall take precedence. within thirty(30)days following the invoice
date(the"Due Date"). Unless otherwise
2.3 Mammoth will provide the Services or specified in writing by Mammoth, payments
cause the Services to be provided to shall be made payable to"Visionary
Customer in accordance with this Communications"and mailed as directed on
Agreement. Mammoth may utilize an the invoice. Credit card, money order,wire
Affiliate or third party to provide Services to transfers and cashier's checks, in each case
Customer and will present to the Customer representing immediately available funds,
consolidated invoices for some or all are also acceptable payment instruments.
portions of the Services.
3.2 Advance Invoice Mammoth will invoice
2.4 Omitted Customer in advance for all Services. All
undisputed amounts other than a written
2.5 Taxes All fees owed by Customer to disputed amount not received by Mammoth
Mammoth are exclusive of, and to the extent in full by the Due Date,will be considered
not otherwise exempt, Customer will be past due,and subject to a late payment fee
responsible for, all sales, use,excise, of the lesser of one and one-half percent
Federal Universal Service Fund and other (1.5%)per month, or portion thereof, or the
taxes, including NECA tariff increases where maximum amount allowed by law.
applicable, that may be levied upon either Customer Services, individually or as a
Party(except for taxes based on whole, may be terminated,disconnected,
Mammoth's net income)in connection with and equipment removed upon five(5)
this Agreement or on activities conducted business days notice if payment, less any
using the Services. Each Party shall be timely and properly submitted billing
solely responsible for all taxes on its own disputes, is not received by the Due Date.
business and shall be responsible for any Mammoth may charge a$500 reconnect fee
related tax filings, payment, protest, audit for any individual Service at its sole
and litigation related thereto. discretion to restore such Service.
2.6 Mammoth authorizes Customer to 3.3 Dispute of Invoice Customer shall only
initiate orders for telecommunications be obligated to pay the Undisputed Payment
circuits to Mammoth's network, provided that amount on or before the Due Date. In order
Customer orders are for Services defined in to properly dispute all or any portion of an
Appendix A or have been accepted by invoice, Customer must give written notice
Mammoth as evidenced by a fully executed to Mammoth of the disputed amount(with
Service Order. Mammoth has the right, in details of the nature of the dispute and the
its sole discretion, to refuse any such Services and invoice(s)disputed)within
Service Orders upon review. sixty(60)calendar days following the date of
the applicable invoice. The Parties shall use
2.7 Mammoth shall provide Services in commercially reasonable efforts to resolve
accordance with applicable State tariffs the dispute in good faith within a sixty(60)
governing the provisions of such Services in calendar day timeframe following the
the State provided. In the event of a conflict Customer's giving the notice of dispute. The
between tariff and this Agreement,where Parties shall supply the other Party with
applicable, the conflict shall be resolved in additional information or documentation it
the favor of the tariff. This provision is not shall reasonably request in order to
applicable to unregulated and/or non-tariffed determine the resolution of the dispute. If
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the dispute Is resolved against the and Mammoth will Invoice Customer for
Customer,the Customer shall pay the Services, until they are considered
disputed amounts plus interest at one and terminated under this Section 4.1 or under
one-half percent(1.5%) per month from the Section 4.3 or 4.4.
date originally due. If Customer is entitled to The Customer reserves the right to
credits or adjustments for disputed amounts, terminate the services with documentation,
Mammoth will credit Customer for the for Fund Availability, after the then current
disputed amount and any interest on the fiscal year giving Mammoth thirty(30)day
disputed amount charged on its invoice written notice specifying the effective date of
issued the next billing cycle. the termination. Customer will be liable for
payment of Services rendered up to the
3.4.Attomev's Fees Customer shall also effective date of termination.
pay all collection costs incurred by
Mammoth (including, without limitation,
reasonable attorneys'fees)for the collection
of late payments. 4.2 Upon termination of this Agreement,
Customer shall discontinue any and all use
of Mammoth's name and materials,
4.0 Term including the use in advertising via web and
in printed material, return or destroy any and
4.1 This Agreement is for the term provided all promotion material supplied by
on the initial Service Order or for a two(2) Mammoth, cease representing itself as
year period should initial Service ordered by affiliated with Mammoth.
Customer under this Agreement be a
Service ordered without a Service Order 4.3 Customer may cancel a submitted
pursuant to Appendix A(the"Initial Tenn"). Service Order by providing Mammoth with
The Initial Term begins on the date of actual written notice of such cancellation. . If
installation of the initial, individual Service Customer cancels a Service Order within
and activation by the telephone company or three(3) business days after the date on
Mammoth, whichever comes first which Mammoth countersigns the Service
(hereinafter"Start Date").To the extent that Order, Customer will not be charged any
the tens of any Service Order for any cancellation fees for the terminated Service
Service extends beyond the Initial Term or Order. If Customer cancels a Service Order
any Services are provided on a month-to- more than three (3)business days after the
month basis,this Agreement shall remain in date on which Mammoth countersigns the
full force and effect for such Service until the Service Order, but prior to the Finn Order
expiration or termination of the active Commit Date for the individual Service, as
Service Order or the termination of the communicated by Mammoth, Customer shall
month-to-month Services. After the Initial pay Mammoth a cancellation fee equal to
Terre, all Services shall automatically the NRC outlined on the Service Order and
continue from month to month, at the then all third-party construction,cancellation
current month-to-month rate, with notice to and/or termination charges incurred by
Customer in writing, which month to month Mammoth, including any previously-waived
rate would be effective thirty(30)days from NRCs from underlying fiber providers,with
the date of notice, until terminated by the exception of T1 (or DS1)services,which
Customer hereunder. To terminate a both parties agree to share actual expense
Service provided on a month-to-month incurred by Mammoth for any Service Order
basis, Customer must give Mammoth written cancellation prior to Firm Order Commitment
notice, after which the Service will terminate Date. If Customer cancels a Service Order
at the end of thirty(30)calendar days or a on or after the Firm Order Commit Date,
later date as requested by Customer. To Customer shall pay to Mammoth all
terminate a Service at the end of the term Termination Liability Charges. Upon
specified in any Service Order, Customer cancellation of the Service Order under this
must provide Mammoth with written notice at Section 4.3, the applicable Service covered
least thirty(30)days prior to the end of such by the Service Order will be considered
term. Customer will be liable for payment of, terminated. Customer may cancel a Service
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provided pursuant to Appendix A other than Commitment Date.
on,a month-to-month basis upon no less
than 30 days'prior written notice to 4.8 SLA terms are defined in Appendix B
Mammoth and Appendix C of this agreement and are
incorporated by reference into this
4.4 Mammoth may immediately terminate Agreement.
this Agreement and all Services hereunder
for failure by Customer to timely pay 4.9 To receive an Outage Credit, Customer
amounts described in Section 3.2 due under must comply with the procedures and
this Agreement. . If Mammoth terminates requirements set forth in Appendix F,which
for non-payment, Customer shall pay with a is incorporated by reference herein. If
lump sum equal to the aggregate Customer fails to comply with the conditions
Termination Liability Charges due under this set forth in Appendix F,Customer shall have
Agreement within ten (10)days'following waived its right to Outage Credits with
Mammoth's notice to Customer of respect to the Outage(as defined in
termination Appendix F)in question.
4.5 At any time during the Tenn, if Customer
fails to pay undisputed invoice(s)by the Due 4.10 Outage Credits shall not apply if(a)
Date on more than two(2)occasions in any Customer Equipment used in the Service
twelve(12)month period, Mammoth may, at has failed to operate property and
its election, require Customer to provide a contributed to the Outage, (b)the Outage is
deposit not to exceed three (3)months of due in whole or in part to Customers or
MRC, calculated as an average of the last Customer's End Users use of the Service in
three(3)months of MRC for Services under violation of applicable law or in violation of
this Agreement, within ten (10)calendar instructions furnished by Mammoth, (c)the
days. Outage is related to routine maintenance
outside normal business hours as
4.6 Mammoth shall notify Customer of the communicated by Mammoth in writing to the
Start Date for the Service. In the event the Customer no less than twenty-four(24)
Customer is unable or unwilling to accept hours prior to such maintenance,and (d)to
Service at such time,the subject Service will the extent the Outage is attributable to the
be held available for a period not to exceed fault of the Customer including, but not
thirty(30)days from the Start Date, during limited to, inadequate response time by the
which Service will be considered active, and Customer. For avoidance of doubt, normal
will be invoiced as an active Service. . business hours shall be 7 am to 5 pm
Monday through Friday, Mountain Time
4.7 Mammoth shall use commercially Zone, excluding United States federal
reasonable efforts to install Service on or holidays.
before the Start Date; however,the inability
of Mammoth to deliver the ordered Service 4.11 Customer may move the physical
by such date shall not constitute a default location of all or part of Service to another
under this Agreement. Customer may location within Mammoth's serving area,
terminate a Service Order accepted by provided the following conditions for the
Mammoth if Mammoth fails to make the move are met, (a)Mammoth is the provider
Service available for testing by the fortieth of the Services at the new location, (b)
(40th)calendar day following the Finn Order Customer advises Mammoth that Service at
Commitment Date unless that availability the new location is to replace the existing
has been hindered by access to the Service, (c)Customers request for the
location(s)at which Service is to be disconnection of the existing Service and the
delivered, or Customer fails to complete installation at the new location are received
necessary requirements or place necessary by Mammoth on the same date, (d)
CPE to allow Mammoth to meet this Customer requests Mammoth install Service
deadline. The right to terminate the delayed at the new location on or prior to the
Service Order under this Section 4.7 is the disconnection date of the Service at the
Customers sole and exclusive remedy for existing location (e)Customer pays all
Mammoth's failure to meet the Finn Order charges due at the existing location through
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the disconnection date and applicable non- electronic breakdowns, may result in
recurring and recurring charges at the new temporary impairment or interruption of
location and (f)the underlying connection Service. As a result, Mammoth does not
provided by Mammoth, if contracted,can be guarantee continuous or uninterrupted
replaced with a contract at the new location. Services and reserves the right from time to
No failure to provide a Service in time to temporarily reduce or suspend
accordance with the applicable SLA as a Service without notice. Except as expressly
result of moving the location of the Service set forth in Section 4.9 with respect to
under this Section 4.11 will be considered Outage Credits, customer releases
an Outage or be eligible for Outage Credits. Mammoth and its directors, officer,
employees and agents from any and all
4.12 Customer understands that Service obligations,charges, claims, liabilities,
must be changed or altered by and with opportunity costs and fees incurred, whether
Mammoth, regardless of type of Service. All foreseeable or unforeseeable, as the result
changes and terminations must be directed of Service interruption,omission or
to Mammoth, with Customer understanding degradation, including the impact resulting
that contact with a third party does not atter to the Customer.
this Agreement. Changes to the type of
Services,assignment of new settings, 4.16 Use of a Party's name,trademark,
support and/or programming of routers and service mark,copyright or other intellectual
any other Service alterations may incur a property owned by a Parry or its Affiliates is
charge to the Customer at Mammoth's then strictly prohibited without the express written
current labor rates or Mammoth's contract consent of a Party's corporate officer.
provider's non-recurring rates. Customer Nothing herein constitutes a license
must provide ample notice and opportunity authorizing the use of Partys name,
to Mammoth to quote and schedule the trademark, service mark, copyright or other
Service changes. intellectual property owned by a Party or its
Affiliates.
4.13 Customer hereby acknowledges that
the Internet is not owned,operated, 4.17 Customer represents that it is not by
managed by, or in any way affiliated with law or agreement with others, prohibited
Mammoth or its Affiliates; it is a community from entering into this Agreement.
network independent of Mammoth.
Customer's use of the Internet related to 4.18 To the extent allowed by Colorado law,
Internet Bandwidth and IP Solutions as The following information will be considered
defined in Appendix B is at Customer's sole proprietary information under the Agreement
risk and is subject to all applicable local, concerning non-disclosure of information
State, Federal, and International laws and between Mammoth and Customer: (a)any
regulations. Access to the Internet is of the terms of this Agreement, including
dependent on numerous factors, pricing and (b)the existence, negotiation or
technologies,and systems beyond results of any arbitrations or settlements
Mammoth's authority and control. relating hereto.
4.14 Access to networks connected to 4.19 The terms, representations and
Mammoth's network must be established warranties of this Agreement may only be
under rules appropriate to those networks. waived by a written Instrument executed by
Mammoth exercises no control whatsoever the Party waiving compliance. Except as
over the content and information passing otherwise provided for herein, neither
through its network. Partys failure at any time, to enforce any
right or remedy available to it under this
4.15 Routine maintenance and periodic Agreement shall be construed as a
system repair, upgrades and continuing waiver of such right or a waiver of
reconfigurations, public emergency or any other provision hereunder.
necessity, Force Majeure, restrictions
imposed by law,acts of God, labor disputes, 4.20 EXCEPT FOR MAMMOTH'S
and other situations, including mechanical or INDEMNITY OBLIGATIONS UNDER
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SECTION 5.1, CUSTOMER'S EXCLUSIVE specifications,features and advantages of
REMEDY FOR CLAIMS ARISING OUT OF the Services, including methods of
OR RELATING TO THIS AGREEMENT supporting Services. Customer
SHALL BE LIMITED TO OUTAGE acknowledges that the Services are
CREDITS AS SET FORTH IN THIS technically complex and require high-quality,
AGREEMENT. IN NO CASE WILL individualized pre-sale and post-sale
MAMMOTH BE LIABLE FOR ANY support.
AMOUNTS EXCEEDING IN THE
AGGREGATE THE AMOUNTS PAID BY 5.0 Indemnification
CUSTOMER TO MAMMOTH UNDER THIS
AGREEMENT IN THE PRIOR TWELVE 5.1 Indemnification by Mammoth Mammoth
MONTHS. MAMMOTH DOES NOT MAKE, shall indemnify, defend and hold harmless
AND HEREBY DISCLAIMS,ANY AND ALL Customer and its affiliates, parents,officers,
OTHER STATUTORY, EXPRESS OR directors, employees, agents successors
IMPLIED WARRANTIES, INCLUDING BUT and assigns("Customer Indemnified
NOT LIMITED TO WARRANTIES OF Parties"),from and against all claims,
MERCHANTABILITY, FITNESS FOR A demands, liabilities, damages and costs
PARTICULAR PURPOSE, OR TITLE OR including,without limitation, its reasonable
NON- INFRINGEMENT OF THIRD-PARTY attorneys'fees and other costs of defense,
RIGHTS. CUSTOMER ACKNOWLEDGES due to third party claims for death, bodily
AND ACCEPTS THE REASONABLENESS injury or property damage,to the extent
OF THE FOREGOING WARRANTY caused by(i)Mammoth's negligence or
DISCLAIMER AND LIMITATIONS OF other tortious conduct or(ii)Mammoth's
LIABILITY. failure to comply with its obligations under
the Agreement. In no event shall Mammoth
4.21 Notwithstanding anything else in this be held liable to any Customer Indemnified
Agreement,there are no third party Party for any damages arising out of(a)any
beneficiaries to this Agreement. Customer Indemnified Party's negligence or
tortious conduct or intentional misconduct,
4.22 Customer shall be solely responsible (b)any Customer Indemnified Party's
for the following: (a)any costs associated violation of the terns of the Services as set
with Customer Equipment; (b)access- forth in this Agreement, (c)any Customer
related charges, including any charges for Indemnified Party's modification of the
interconnection, cross-connection, Services, (d)any Customer Indemnified
installation,wiring and construction and Partys violation of applicable law. The
other access-related charges; and/or(c) obligations of Mammoth under this Section 5
ordering, installing and ensuring proper are for the benefit of Customer'lndemnified
operation of any and all equipment required Parties only and Mammoth shall have no
to enable Customer to receive the Service, liability or responsibility to any other person
as set forth in any accepted Service Order. in connection with any performance or
nonperformance of this Agreement.
4.23 Customer shall be responsible for
supporting End Users of the Services 5.2 Indemnification by Customer To the
solicited by or assigned to Customer, extent allowed by Colorado law, Customer
defined as Level 1 Support. Level 1 Support shall indemnify,defend and hold harmless
includes, but is not limited to,soliciting Mammoth and its affiliates, parents, officers,
orders, completing orders, providing back- directors, employees,agents successors
office and billing services and providing End and assigns ("Mammoth Indemnified
User technical support. Customer warrants Parties"),from and against all claims,
that communication with Mammoth shall demands, liabilities, damages and costs
originate from Customer and not the End including,without limitation, its reasonable
User. attorneys'fees and other costs of defense,
arising from or relating to a third party claim
4.24 Customer shall maintain a staff of relating to (a)Customer's breach of any
adequately trained and competent terms of this Agreement; and (b)Mammoth's
personnel, knowledgeable of the provision of Services under this Agreement.
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In no event shall Customer be held liable to includes an unconditional release of the
any Mammoth Indemnified Party for any Indemnified Party from all liability arising out
damages caused by the gross negligence of of such Indemnity Claim. At the request of
any Mammoth Indemnified Party. the Indemnifying Party,the Indemnified
Party will provide reasonable cooperation
5.3 Procedure A Party entitled to and, at the expense of the Indemnifying
indemnification under this Section 5(an Party,assistance in the defense or
"Indemnified Party")shall promptly notify the settlement of any Indemnity Claim.
other Party to this Agreement(the
"Indemnifying Party")in writing of any claim, 6.1 Choice of Law This Agreement and all
action or proceeding which may be subject disputes arising out of or relating to this
to indemnification under this Agreement(an Agreement will be governed by, enforced,
'Indemnity Claim"), but the failure to provide and construed in accordance to the laws of
such prompt notice will not relieve the the State of Colorado. THE PARTIES
Indemnifying Party from its obligation to AGREE THAT ANY ACTION BROUGHT BY
provide indemnity with respect to an EITHER PARTY UNDER OR IN RELATION
Indemnity Claim except to the extent the TO THIS AGREEMENT, INCLUDING
Indemnifying Party is materially prejudiced WITHOUT LIMITATION TO INTERPRET
by the failure to give prompt notice. The OR ENFORCE ANY PROVISION OF THIS
Indemnifying Party will have the sole control AGREEMENT, SHALL BE BROUGHT
of the defense and any settlement EXCLUSIVELY IN, AND EACH PARTY
negotiations with respect to the Indemnity AGREES TO AND DOES HEREBY SUBMIT
Claim,except that the Indemnified Party TO THE JURISDICTION AND VENUE OF,
may employ counsel to participate in the ANY STATE OR FEDERAL COURT
defense of any such Indemnity Claim, and LOCATED IN PITKIN COUNTY,
the employment of such counsel shall be at COLORADO
the Indemnified Partys own expense, unless 6.2 Successor and Assigns Neither Party
(i)the employment of such counsel has shall assign any of its rights,obligations or
been authorized in writing by the privileges (by operation of law or otherwise)
Indemnifying Party, (ii)the Indemnified Party hereunder without the prior written consent,
has reasonably concluded (based upon which shall not be unreasonably withheld, of
advice of counsel)that a conflict or potential the other Party. The terms and conditions of
conflict exists between the Indemnified Party this Agreement shall inure to the benefit of
and the Indemnifying Party that makes it and be binding upon the respective
impossible or inadvisable for counsel to the permitted successors and assigns of the
Indemnifying Party to conduct the defense of Parties. Nothing in this Agreement, express
both the Indemnified Party and the or implied, is intended to confer upon any
Indemnified Party,or(iii)the Indemnifying party other than the Parties hereto or their
Party has not in fact employed counsel respective successors and assigns any
reasonably satisfactory to the Indemnified rights,remedies, obligations or liabilities
Party to assume the defense of such under or by the reason of this agreement,
Indemnity Claim within a reasonable time except as expressly provided in this
after receiving notice of an Indemnity Claim, Agreement.
in each of which cases the reasonable fees,
disbursements and other reasonable 6.3 Headings Headings used in this
charges of such counsel will be at the Agreement are provided for convenience
expense of the Indemnifying Party. only and shall not be used to construe
Notwithstanding the foregoing provisions of meaning or intent.
this Section 5.3,the prior written consent of
the Indemnified Party,which will not tie 6.4 No Ability to Bind Other Party Neither
unreasonably withheld, conditioned or Party shall have the authority to bind the
delayed,will be required with respect to the other by contract or otherwise or make any
settlement, compromise or consent of any representations or guarantees on behalf of
Indemnity Claim in which such Indemnified the other. The relationship arising from this
Party is an actual or potential party unless Agreement shall be, and shall at all times
such settlement,compromise or consent remain that of an independent contractor,
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and does not constitute an agency,joint obligations to Mammoth will survive the
venture, partnership, employee relationship expiration and termination of this
or franchise. Agreement. In addition,the provisions of
Sections 1, 2.5, 3.3,4.1,4.8,4.9,4.13
6.5 Notices All communications required or through 4.23 and 5 will survive the expiration
permitted to be given by this Agreement and termination of this Agreement.
shall be made in writing and shall be sent by
a recognized overnight commercial delivery 7.0 Non-Discrimination. No discrimination
or certified U.S. mail to the address for the because of race,color,creed,sex, marital
respective Party shown on the signature status,affectional or sexual orientation,family
page of this Agreement or such other responsibility,national origin,ancestry,
address as either Party may specify from handicap,or religion shall be made in the
time to time in writing. employment of persons to perform services
under this contract.
6.6 Force Majeure Neither Party shall be
liable for any failure or delay in the 8.0 Illegal Aliens—CRS 8-17.5-101 &24-
performance of its obligations under this 76.5-101.
Agreement for any cause beyond its (a) Purpose. During the 2006 Colorado
reasonable control including,without legislative session,the Legislature passed
limitation, acts of God,fire or other disaster House Bills 06-1343(subsequently
or telecommunications, power or Internet amended by HB 07-1073)and 06-1023 that
failure. The occurrence of any such event added new statutes relating to the
shall toll the time period provided in this employment of and contracting with illegal
Agreement for performance by the affected aliens.These new laws prohibit all state
Party. agencies and political subdivisions, including
the City of Aspen,from knowingly hiring an
6.7 Construction: Interpretation The term illegal alien to perform work under a
"this Agreement"means this Mammoth contract,or to knowingly contract with a
Networks Services Agreement together with subcontractor who knowingly hires with an
the appendixes and exhibits hereto,as the illegal alien to perform work under the
same may from time to time be amended, contract.The new laws also require that all
modified,supplemented or restated in contracts for services include certain specific
accordance with the terms hereof. No Party, language as set forth in the statutes.
nor its respective counsel, shall be deemed Mammoth hereby confirms that:
the drafter of this Agreement for purposes of
construing the provisions hereof,and all (i) Mammoth shall not
provisions of this Agreement shall be knowingly employ or
construed according to their fair meaning contract new employees
and not strictly for or against any Party. without confirming the
Unless otherwise indicated to the contrary employment eligibility of all
herein by the context or use thereof: (i)the such employees hired for
words, "herein,""hereto,""hereof and words employment in the United
of similar import refer to this Agreement as a States under the Public
whole, including the appendixes and Contract for Services.
exhibits, and not to any particular section,
subsection, paragraph,subparagraph or (ii) Mammoth shall not
clause contained in this Agreement; (ii) enter into a contract with a
masculine gender shall also include the subcontractor that fails to
feminine and neutral genders,and vice confirm to the Mammoth
versa; (iii)words importing the singular shall that the subcontractor shall
also include the plural, and vice versa; and not knowingly hire new
(iv)the words"include,""includes"or employees without
"including"shall be deemed to be followed confirming their employment
by the words"without limitation." eligibility for employment in
the United States under the
6.8 Survival. Customer's payment
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357078 v3/CO
_ Public Contract for employee who is an Illegal
Services. alien, Mammoth shall:
(iii) Mammoth has (1) Notify such
verified or has attempted to subcontractor and
verify through participation the City of Aspen
in the Federal Basic Pilot within three days
Program that Mammoth that Mammoth has
does not employ any new actual knowledge
employees who are not that the
eligible for employment in subcontractor has
the United States; and if newly employed or
Mammoth has not been contracted with an
accepted into the Federal illegal alien;and
Basic Pilot Program prior to
entering into the Public (2) Terminate
Contract for Services, the subcontract with
Mammoth shall forthwith the subcontractor if
apply to participate in the within three days of
Federal Basic Pilot Program receiving the notice
and shall in writing verify required pursuant to
such application within five this section the
(5) days of the date of the subcontractor does
Public Contract. Mammoth not cease
shall continue to apply to employing or
participate in the Federal contracting with the
Basic Pilot Program and new employee who
shall in writing verify same is an illegal alien;
every three (3) calendar except that
months thereafter, until Mammoth shall not
Mammoth is accepted or terminate the Public
the public contract for Contract for
services has been Services with the
completed, whichever is subcontractor if
earlier. The requirements of during such three
this section shall not be days the
required or effective K the subcontractor
Federal Basic Pilot Program provides
is discontinued. information to
establish that the
(iv) Mammoth shall not subcontractor has
use the Basic Pilot Program not knowingly
procedures to undertake employed or
pre-employment screening contracted with an
of job applicants while the illegal alien.
Public Contract for Services
is being performed. (vi) Mammoth shall
comply with any reasonable
(v) If Mammoth obtains request by the Colorado
actual knowledge that a Department of Labor and
subcontractor performing Employment made in the
work under the Public course of an investigation
Contract for Services that the Colorado
knowingly employs or Department of Labor and
contracts with a new Employment undertakes or
is undertaking pursuant to
10 Initi •��
357078v3/CO
the authority established in
Subsection 8-17.5-102 (5), (b) Mammoth agrees not to give
C.R.S. any employee of the City a gratuity
or any offer of employment in
(vii) If Mammoth violates connection with any decision,
any provision of the Public approval, disapproval,
Contract for Services recommendation, preparation of any
pertaining to the duties part of a program requirement or a
imposed by Subsection 8- purchase request, influencing the
17.5-102, C.R.S. the City of content of any specification or
Aspen may terminate the procurement standard, rendering
Public Contract for advice, investigation, auditing, or in
Services. If the Public any other advisory capacity in any
Contract for Services is so proceeding or application, request
terminated, Contractor shall for ruling, determination, claim or
be liable for actual and controversy, or other particular
consequential damages to matter,.pertaining to this Agreement,
the City of Aspen arising out or to any solicitation or proposal
of Mammoth's violation of therefore.
Subsection 8-17.5-102,
C.R.S. (c) Mammoth represents that no
official, officer, employee or
(ix) If Mammoth representative of the City during the
operates as a sole term of this Agreement has or one
proprietor, Mammoth (1) year thereafter shall have any
hereby swears or affirms interest, direct or indirect, in this
under penalty of perjury that Agreement or the proceeds thereof,
the Mammoth (1)is a citizen except those that may have been
of the United States or disclosed at the time City Council
otherwise lawfully present in approved the execution of this
the United States pursuant Agreement.
to federal law, (2) shall
comply with the provisions (d) In addition to other remedies it
of CRS 24-76.5-101 at seq., may have for breach of the
and (3) shall produce one of prohibitions against contingent fees,
the forms of identificafion gratuities, kickbacks and conflict of
required by CRS 24-76.5- interest, the City shall have the right
103 prior to the effective to:
date of this Agreement.
1. Cancel this Purchase
9. Warranties Against Contingent Fees. Agreement without any
Gratuities. Kickbacks and Conflicts of liability by the City;
Interest. 2. Debar or suspend the
offending parties from being
(a) Mammoth warrants that no a Mammoth, contractor or
person-or selling agency has been subcontractor under City
employed or retained to solicit or contracts;
secure this Contract upon an 3. Deduct from the contract
agreement or understanding for a price or consideration, or
commission, percentage, brokerage, otherwise recover, the value
or contingent fee, excepting bona of anything transferred or
fide employees or bona fide received by the Mammoth;
established commercial or selling and
agencies maintained by the 4. Recover such value from
Mammoth for the purpose of the offending parties.
securing business.
LlaL-
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078 v3/CO
APPENDw A—SERVICE$NOT REouIR NG A SERVICE
ORDER (i) $100 NRC for BGP advertisements
Ot) $3 MRC$25 NRC for DSL VoIP priority
(1) Term (may require a VPVVCI change)
(iii) $22 MRC$25 NRC for T1 VoIP priority
Services outlined on this page are Month-to- (fv) $10 MRC$25 NRC for VRF between
Month unless otherwise noted. locations
(v) MLPPP DSL$40 MRC$100 NRC for
(2) Services 2xl.5Mbps/896k
(vi) MLPPP DSL$60 MRC$100 NRC for
Digital Subscriber Line Aggregation,defined as 2x3-7Mbps/896k
the transport of DSL traffic from the Local (vii) (When feeding End User locations-no
Exchange Carder(LEC)interface with wireless towers or IP POPS)
Mammoth and the Customers Interface with (viii) $3 MRC$25 NRC per static IP
Mammoth. (ix) $40 MRC$25 NRC per Class C.or
equivalent count
Digital Subscriber Line with Upstream,defined
as the transport of DSL traffic from the Local
Exchange Carrier(LEC)interface with
Mammoth and Mammoth's Interface with the
public Internet. (4) Terms Specific to DSL Aoprepation
(a)For each Service above,Customer shall be
(3) Charges responsible for and bear the cost of each
DSL circuit,or loop,unless otherwise outlined
(a)Layer 2 pricing applicable to DSL ordered to an in the content of a Service Order.
aggregation point on Mammoth's network. (b)Customer agrees to provide Mammoth with
sixty(60)days notice prior to moving a total
(i) NRC for DSL Aggregation(Layer 2): of twenty percent(20%)of Customers DSL
$2,500 End Users in any given month.
(it) MRC for DSL Aggregation(Layer 2):
(1)$500 MRC,ATM DS3,1 year term
(2)$800 MRC,ATM OC3,1 year teml
(3)$12 MRC each DSL,charged in
blocks of 10 DSLs,without pro-rate
(4)all other Aggregation options
Identified via Service Order
(5)not inclusive of any cross-connect or
loop fees
(b)Layer 3 pricing applicable to DSL orders to
Mammoth's router and using Mammoth's
Upstream Internet Providers. Non-recurring
charge(NRC or setup)for DSL with Internet
upstream(Layer 3)is$500 NRC. Monthly-
recurring charge(MRC)for DSL with Internet
upstream:
(t) $10 MRC each DSL,1-100
(it) $9 MRC each DSL, 101-250
(iii) $8 MRC each DSL over 250
(iv) Charged in blodcs of 10 DSLs,without
pro-rate. Pricing based on single End
User use. Multi-tenant,multidwelling
and Point of Presence use for DSL is
priced on an individual case basis—
rates above do not apply.
(c)DSL Loop Pricing
(i) Business rates,1 year term,$100 NRC
for early termination
(1) $50 MRC$50 NRC 1.5Mbps/896k
(2)$70 MRC$50 NRC 3-7Mbps/896k
(it) Loop rates do not include Layer 2 or
Layer 3 services priced above
(iii) Loop prices subject to change per
underlying Centuryl-ink DSL loop rates.
(d)Miscellaneous Charges
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APPENDIX B-SERVICE LEVEL AGREEMENT(MEAN TWE synthetic User Datagram Protocol traffic.For purposes
To REPAIR) - of this Appendix B,jitter means average monthly jitter
as measured by Mammoth on an ongoing basis in five
The Service Level Agreement(SLA")between minute intervals.
Mammoth and Customer provides the
fo0owing: Components Included:
Equipment mean time to repair. All Components(i.e.POPs,Routers,Circuits)of
-4 hour mean time to repair,within business hours Mammoth's network and the Components of certain
-8 hour mean time to repair,outside business hours other carriers or backbone providers used by Mammoth
Fiber optic,Coaxial,Ethernet or Cable pair mean time to are Covered by this SLA.The SLA is limited to
repair. components of Mammoth's network. Service may be
-4 hour mean time to repair,within business hours affected by LATA due to(i)Network Downtime under
-8 hour mean time to repair,outside business hours the Network Availability goal or(ii)the failure of the
The above objectives shall apply to DS1.DS3,OC3, other goals in this SLA. Outage Credits shall be based
OC12,OC48,OC3,OC12,and OC48 Capacity,Gigabit only on the MRCs for locations in the particular LATA
Ethernet services,and DSL-related services. for which Customer is eligible to receive Outage Credits
under the applicable SLA.
DSL SLA: Components Excluded:
Network Availability-the goal for network availability is All other services and components relating to the
100%,with each hour of DSL downtime qualifying Service,Including without limitation the following,are
Customer for one hours Outage Credit for the Affected not covered by the SLA:all access and connection
Service,applicable to only the DSL Services provided facilities to the Master Aggregation ATM switch(i.e.
to Customer,by LATA. Network Availability Is based on DSL,PVC,local loop)at Owest;the Master
the ability to transmit and receive data from a particular Aggregation ATM switch at Owest;the ATM
LATA,measured from the time the trouble ticket is aggregation port at Owest.the Connection from the
opened to the time the Service is again able to transmit Master Aggregation ATM Switch to Mammoth:
and receive data as documented by Mammoth. _ Customer Premises Equipment;and any other services
or Components not operated by Mammoth or are not a
Latency-the goal for DSL latency is 100ms or less to pan of the Service.Network unavailability,or increased
the Customers router,with Outage Credits of 10%of latency,packet loss or jitter caused by the foregoing
MRC available for latency of 101 ms to 120ms,and excluded Components will not give rise to Outage
Outage Credits of 20%of MRC available for latency of Credits.
121 ms or greater,by LATA. Latency will be measured
via roundMp pings averaged over an hour period, Normal and Emergency Maintenance Service Level
divided by two. Agreements for DSL mirror those found in Appendix E.
Packet Delivery-the goal for packet delivery Is 99.5%, The length of each Outage shall be calculated in full
with Outage Credits of 10%of MRC available for packet minutes for the purposes of determining Outage
delivery of 99.01 to 99.49%,Outage Credits of 25%of Credits. The existence and end of each Outage and
MRC available for packet delivery of 90.00 to 99.00%, the Latency,packet delivery and jitter will be
and Outage Credits of 50%of MRC available for packet determined by Mammoth in good faith based on
delivery of less than 99.00%,by LATA. Packet delivery network tests performed by Mammoth. Under no
measurements shall be conduced at an aggregate circumstances will network tests performed by
circuit level,measured as average packet loss over an Customer be Considered valid measurable criterion for
hour period. the purposes of establishing Outage Credits.
Jitter-Bre goal for jitter is 4ms,with Outage Credits of
10%of MRC available for jitter of 4 to 4.99ms,Outage
Credits of 25%of MRC available for jitter of 5 to
5.99ms,and Outage Credits of 50%of MRC available
for jitter of more than Ems,by LATA. Jitter
measurements shall be Conducted at an aggregate
circuit level,measured as average jitter over an hour
period for.UDP traffic.
The average network delay('Latency)will be
measured via roundup pings on an ongoing basis
every five minutes to determine an average monthly
performance level for Latency at the relevant Point of
Presence within the Mammoth Network. Latency
equals the sum of roundtrip delay divided by two to
calculate one-way latency results.Packet Delivery will
be measured on an ongoing basis every five minutes to
determine an average monthly performance level for
packets delivered between the relevant POPS.
Jitter measures interpacket delay variance and packet
loss in the Mammoth Network,and is measured on an
ongoing basis every five minutes by generating
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357078 v3/CO 13
Appendix C—Dedicated Internet Access Service Level measured via roundtrip pings on an ongoing basis
Agreement every five minutes to determine an average monthly
performance level for Latency at the relevant Point of
Dedicated Internet Access is described as Internet Presence within the Mammoth Network. Latency
connectivity produced by:(a)a dedicated,highspeed equals the sum or mundtrip delay divided by two to
network connection between Customer's premises and calculate one-way latency results.Packet Delivery will
Mammoth or a Mammoth affiliate's Internet Protocol be measured on an ongoing basis every five minutes to
network(Mammoth Network);and(b)routing services, determine an average monthly performance level for
based on Transmission Control PmtooDVIntemet packets delivered between the relevant POPs.
Protocol(TCP/IP). Service may also include the
procurement of IP address space for Customer. Jitter measures interpacket delay variance and packet
loss in the Mammoth Network,and is measured on an
The monthly Service Availability Percentage for ongoing basis every five minutes by generating
Dedicated Internet Access Is calculated as follows: synthetic User Datagram Protocol traffic.For purposes
of this Appendix C,jitter means average monthly jitter
(Minutes of Outage)/43,200(30 days x 24 hourstday x as measured by Mammoth on an ongoing basis in five
60 minutes in an hour) minute Intervals.
All relevant components of the Mammoth IP Network A Distributed Denial of Service attack CDDoS')is
(POPS,routers and circuits)are subject to this SLA, characterized by an explicit attempt by attackers to
-end components of other Internet backbone providers prevent legitimate users of a Service from using that
are subject only to the Latency SLA as described Service. DDoS attacks are not covered by this SLA.
herein. Local access and connection facilities used to
access the Mammoth Network and any Customer The length of each Outage shall be calculated in full
equipment are not Included as components of the minutes for the purposes of determining Outage
Mammoth Network for purposes of this SLA;provided, Credits. The existence and end of each Outage and all
however,solely for purposes of the Network Port Latency,jitter and network port availability
Availability SLA,the components of the Mammoth measurements will be determined by Mammoth in good
Network shall include any access circuits provided by faith based on network tests performed by Mammoth.
Mammoth,but shall specifically exclude any access Under no circumstances will network tests performed
furnished or ordered directly by Customer from a third by Customer be considered valid measurable criterion
party. for Outage,Latency,jitter or network port availability
determinations for the purposes of establishing Outage
Network Port Availability Credits.
Goal Outage Credit
100% <5min no credit
5min-1hr 1 day's credit and 1 day credit for each
hour after unfit full month MRC
Latency
Goal Latency Outage Credit
Soma 81-90ms 10%of MRC
sums 91-11oms 25%of MRC
80ms >110ms 50%of MRC
Packet Delivery
Goal Packet Delivery Outage Credit
99.50% 99.01-99.49% 10%of MRC
99.50% 90.00.99.00% 25%of MRC
99.50% <90.00% 50%of MRC
Jitter
Goal Packet Delivery Outage Credit
2ms 2.1-3ms 10%of MRC
2ms 3.14ms 25%of MRC
2ms >4ms 50%of MRC
Network Port Availability measures Network Downtime
versus Network Uptime. Network Downtime is based
on periods when a particular DIA port of Customer is
unable to transmit and receive data,and Network
Uptime Includes all other periods. Network downtime is
recorded in the Mammoth Network trouble ticket
system,and is measured from the time Customer
opens a trouble ticket with Mammoth as defined in
Appendix E,to the time the affected Service is again
able to transmit and receive data according to
Mammoth's records.
The average network delay('Latency)will be
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Appendix D-Private Line Service Level Agreement
Private Line Service is described as the carriage of
interstate or intrastate traffic pursuant to the terms and .
conditions of Agreement and the Appendices. Private
Line Service is a point to point dedicated switched/non-
switched electrical and/or data optical transmission,
over a physical circuit between hvo Points of Presence
(Pops)located on Mammoth's,its affiliates,or its third
party vendor networks.
The monthly Service Availability Percentage for Private
Line Service is calculated as follows:
(Minutes of Outage)/43,200(30 days x 24 hours/day x
60 minutes in an hour)
Private Line Service Descriptions:
DS1
DS3
OC3
OC12
OC48
SLA and Outage Credit Table,Service Availability
Upper Level Lower Level Outage Credit%
100.000%99.99%0%
<99.99%99.95%10%
<99.95%99.00%25%
<99.00%0.00%100%
The length of each Outage shall be calculated in full
minutes for the purposes of determining Outage
Credits. The existence and end of each Outage will be
determined by Mammoth In good faith based on
network tests performed by Mammoth. Under no
circumstances will network tests performed by
Customer be considered valid measurable criterion for
Outage determination for the purposes of establishing
Outage Credits.
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Appendix E—Wave Service Level Agreement
The Service Level Agreement('SLA')between
Mammoth and Customer provides the
following:
Equipment mean time to repair.
-4 hour mean time to repair,within business hours
-8 hour mean time to repair,outside business hours
Fiber optic cable pair mean time to repair.
-4 hour mean time to repair,within business hours
-8 hour mean time to repair,outside business hours
The above objectives shall appy to 1 Gbps,2.5Gbps
and 10Gbps Wave services.
The monthly Service Availability percentage for
Unprotected Wave Service is calculated as follows:
(Minutes of Outage)143,200(30 days x 24 hours/day x
60 minutes in an hour)
Service Objectives for Uptime,Unprotected Wave
99.90%minimum
Upper Level Lower Level Outage Credit%
100.000% 99.9% 0.0%
<99.9% 99.7% 5%
<99.7% 99.2% 10%
<99.2% 98.50/6 25%
<98.5% 0.0% 100%
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357078 v3/CO
Scheduled Maintenance during pre-established
Appendix F—Outage Credit Details maintenance hours,or windows. Scheduled
Maintenance refers to(a)upgrades of hardware or
To receive an Outage Credit,Customer must(a)enter software,(b)upgrades to increase capacity,(c)other
a trouble ticket at the time the failure to meet the SLA pre-scheduled network activity that may degrade the
(the"Outage')occurs by contacting Mammoth's quality of the Services or cause Service interruptions.
Network Operating Center(NOC)via the online
Mammoth Networks Partner Portal,unless Mammoth Mammoth will use reasonable efforts to perform all
has itself opened the trouble ticket for such Service Scheduled Maintenance weeknights between the hours
unavailability,(b)be current in its payment obligations of 11:60 pm and 6:00 am Mountain Time Zone.
under this Agreement for all amounts not In dispute by Notifications for Scheduled Maintenance shall be
the Customer,and(c)request reimbursement for provided by email at least 24 hours In advance of the
Outage Credits from Mammoth as specified hereunder work.It shall be the responsibility of the Customer to
and submit to Mammoth a0 necessary supporting provide Mammoth in writing with correct and effective
documentation within thirty(30)calendar days of the contact smalls for said notifications.
date of invoice for the month in which the applicable
Outage occurred.If Customer fails to comply with the Emergency Maintenance shall refer to efforts to correct
conditions for Outage Credits as set forth,Customer Mammoth network conditions which require immediate
shall have waived Its right to such Outage Credits for correction. Emergency Maintenance,while being
Outages In such month. conducted,may degrade the quality of Services and
may result in total disruption of Service. Mammoth may
An Outage shall not be deemed to have occurred in the undertake Emergency Maintenance at any time it
event that the Service is unavailable or impaired due to deems necessary in its sole discretion.
any of the following:
Mammoth shall endeavor to provide Customer notice of
(i)Interruptions on a Service for which the Start Date Emergency Maintenance as soon as is reasonably
has not yet commenced; practicable under the circumstances.
(ii)Interruptions caused by the negligence,error or
omission of Customer or others authorized by
Customer to access,use or modify the Service or
equipment used by Customer,
(iii)Interruptions due to power failure at Customer or
End User premises,or the failure or poor performance
of Customer Equipment;
Qv)Interruptions during any period In which Mammoth
or Its agents are not afforded access to the End User
premises where the access lines associated with the
Service are terminated,provided such access is
reasonably necessary to prevent a degradation or to
restore Service;
(v)Interruptions during any period that Mammoth has
communicated to Customer with twenty-four(24)hours
notice that the Service will be unavailable due to normal
Maintenance or grooming purposes,or Customer has
released the Service to Mammoth; .
(vi)Interruptions during any period that Customer elects
not to release the Service for testing and/or repair and
continues to usa it on an impaired basis;
(vii)Interruptions resulting from Force Majeure
(including a Distributed Denial of Service(DDOS)
attack);
(viii)Interruptions resulting from Customers use of
Service in an unauthorized or unlawful manner,
(ix)Interruptions resulting from a Mammoth disconnect
under Section 3.2 of the Agreement;
(x)Interruptions resulting from incorrect,incomplete or
inaccurate an Service Order from Customer,
(xi)Interruptions due to improper or inaccurate network
specifications provided by Customer,
(xii)Interruptions resulting from a failure of an off-net
carriers loop or network that has no SLA;
()dii)Special configurations of the standard Service that
have been mutually agreed to by both parties,unless a
separate Service Level Agreement for the special
configuration has been established with the Service
Order,and
(xiv)Mammoth's inability to deliver Service by the Firm
Order Commit Date.
Mammoth will endeavor to perform all non-emergency
17 InCiatj�__
357078 v3/0O
Appendix G—Mammoth NOC Guide
Mammoth operates a 24 hour monitoring center that .
enables access to Mammoth's Tier 1 and Tier II
Network Operations Center(NOC)personnel 24 hours
a day,7 days a week,365 days a year. To report any
Outage or other service Issues to the NOC.Customer
must enter an online trouble ticket at
h0oJfoartner.mammothnetworks.cem(the"Mammoth
Networks Partner Portal',or'MNPP).
In the event Customer can establish it was unable to
enter a trouble ticket using the MNPP due to network
unavailability or unavailability of the MNPP.Customer
may contact the NOC at the following telephone
number.307.685.5475.
The NOC telephone number can be used to open
tickets in place of the MNPP. However,phone tickets
cannot be used for calculation of outage credits.
Should Services be delivered to Customer using
Customer-provided circuits,Customer is responsible for
maintaining and troubleshooting its portion of the circuit.
Mammoth's NOC will assist Customer in determining
tmubleshooting steps for each portion of the
Customer's Services.
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Appendix H—Switched Ethernet Service Level
Agreement
Switched Ethernet is described as the carriage of
packets on an Ethernet network(either Metro or Long-
Haul)pursuant to the terms and conditions of
Agreement and the Appendices. Switched Ethernet is
a point to point or point to multi-point switched electrical
and/or optical transmission,over a physical circuit to a
central switched point or hub on Mammoth's,its
affiliates,or its third party vendor networks.
The monthly Service Availability Percentage for
Switched Ethernet Service is calculated as follows:
((Minutes of Outage)143,200(30 days x 24 hours/day
x 60 minutes in an hour)
Private Line Service Descriptions:
Metro Optical Ethernet
Metro Switched Ethernet Service
Ethernet Virtual Private Line
SLA and Outage Credit Table,Service Availability
Upper Level Lower Level Outage Credit%
100.000%99.9%0%
<99.9%99.5%5%
<99.5%99.0%10%
<99.0%95.0%25%
<95.0%00.0%50%
The length of each Outage shall be calculated In full
minutes for the purposes of determining Outage
Credits. The existence and end of each Outage will be
determined by Mammoth In good faith based on .
network tests performed by Mammoth. Under no
circumstances will network tests performed by
Customer be considered valid measurable criterion for
Outage determination for the purposes of establishing
Outage Credits.
os
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