HomeMy WebLinkAboutContracts & Agreements_150-2012_CCv0001.pdf Ernest Communications, Inc.
Local Service Customer Agreement
This agreement(Agreement)is made and entered into on the 28th day of August,2012,("Effective Date")by and
between Ernest Communications,Inc.("ECI")a Georgia Corporation,at 5275 Triangle Parkway,Suite 150,Norcross,GA
30092 and the City of Redlands("Customer")at 35 Cajon Street,Suite 200,Redlands,California 92373,
For purposes of this agreement,"Ernest Communications,Inc.","ECI",or"Company"means the corporation or an affiliate
thereof that is certified to provide the Services in the applicable states.
IN CONSIDERATION of the mutual covenants and conditions set forth below,it is agreed
as follows:
1. OBLIGATIONS OF ECI:Throughout the term of this Agreement,ECI shall provide local line services("Services")to
Customer at the locations listed on Exhibit A of this Agreement,which may be amended from time-to-time by Customer
by entering orders for service in accordance with ECI practices,provided that ECI does not reject such order within thirty
(30)days of submission.ECI shall provide the Services and shall have the responsibility to arrange,move,disconnect,
change and repair facilities to allow for the services provided under this Agreement and the signed Letter of Agency
entered into between the parties contemporaneously herewith("LOA").
2. OBLIGATIONS OF CUSTOMER:Customer shall provide all information,access,and support required for timely installation
and proper use of the Services. Additionally,Customer shall make full and timely payments as described under Paragraph
8 of this Agreement.Customer shall assure that Customer's use of the Services is at all times consistent with the use
intended,is not utilized in any unlawful manner,and is used in such a manner as to prevent damage to ECI's network or
equipment.
3. QUALITY SERVICE GUARANTEE:If at any time during the Term(as defined hereinafter),subject to the conditions below,ECI
is in material breach(provided that such breach is within ECI's control)of its obligations regarding network quality,service
support or billing functions,and ECI fails to cure such breach within thirty(30)days of written notice(addressed to the
Director of Customer Care,Ernest Communications,Inc.,5275 Triangle Parkway,Suite 150,Norcross,GA 30092)from
Customer,ECI will,upon Customer's written request,terminate this Agreement,
4. TERM OF SERVICE:This Agreement shall commence on the Effective Date and shall continue thereafter on a month to
month basis
(each month to be referred to as a"Renewal Term"),unless the service is terminated in accordance with the provisions of
paragraph
13 or 3 herein. No termination of this Agreement shall relieve Customer of its obligation to pay any charges incurred prior
to such
termination.
S. PRICING,FEES AND CHARGES:Prices and fees for the Services are outlined in Exhibit A,which is attached hereto and
incorporated herein by this reference. These charges are categorized as(1)"Recurring Charges"and(2)"Non-Recurring
Charges"as outlined in Exhibit A. Recurring Charges are billed monthly to the Customer and will remain fixed during the
term hereof,subject to the provisions of Exhibit A. Non-Recurring Charges shall be billed as they occur. Charges will begin
to accrue at the time the Services to which they relate have been activated.
6. ADDITIONAL CHARGES:Any applicable federal,state or local use,excise,sales or privilege taxes,duties or similar
liabilities including Federal or State mandated regulatory assessments,charged to or against ECI or Customer because
of the Services and equipment furnished by ECI shall be paid by the Customer.
7. SERVICE ADDITIONS:Customer may request additional quantities or types of service to those currently provided under this
Agreement,at the then-prevailing rates under the terms of this Agreement,by executing a written order for such additional
service("Order"). Each Order must be accepted by ECI and shall specify the agreed date on which the activation of the
services covered by that Order shall be completed and the additional costs of the addition. The additional charges relating
to these service additions will then be included in the monthly bill as described in Paragraph S of this Agreement.
8. PAYMENT-Customer agrees to make payment on each undisputed invoice to ECI within fifteen(15)days from the date of
each invoice.A late payment charge of one and one-half percent(1.5%)per month shall be applied to any invoice paid
after the due date.ECI will also charge a fee of twenty-five dollars($25.00)for the return of any dishonored check.
Customer agrees to submit any disputes charges,along with an explanation of such dispute,to the Director of Customer
Care at the address set forth in Section 3 hereof,within sixty(60)days of invoice date. ECI shall issue a determination
regarding each submitted dispute within thirty(30)days of submission. Customer shall render payment in respect of all
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Local Service Customer Agreement
charges which are determined by ECI to be properly due and payable,within fifteen(15)days of such determination
9. CREDIT ALLOWANCE FOR INTERRUPTION OF SERVICE:The liability,if any,of ECI arising out of or in any way connected
with any defect,error,omission,delay,mistake,interruption,suspension,or other failure in connection with furnishing
services,facilities,or maintenance,shall in no event exceed an amount equivalent to the proportionate charge to
Customer for the affected service for
the time period during which the interruption occurred. ECI shall not be liable,nor shall any credit be given to a
Customer,for any interruption of less than twenty-four(24)hours or which is: 1)caused by the underlying
interexchange or local exchange carrier,Customer,or any entity other than ECI;2)due to the failure of equipment,
systems or services provided by the Customer or any other entity other than ECI;3)during periods when the Customer
elects to use the service on an impaired basis;or 4)a group of interruptions,resulting from a common use,for amounts
less than one dollar($1.00).
10. SERVICE WARRANTIES: ECI warrants that it will use reasonable efforts,in conformity with those generally acceptable in
the industry in which ECI operates,to provide services hereunder in conformance with such standards. SUCH WARRANTIES
AS EXPRESSLY SET FORTH IN THIS AGREEMENT ARE GIVEN AND ACCEPTED IN LIEU OF,AND ECI DISCLAIMS TO THE EXTENT
PERMITTED BY LAW,ANY AND ALL OTHER WARRANTIES,EXPRESS OR IMPLIED,INCLUDING,WITHOUT LIMITATION,THE
IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE.
11. LIMITATION OF LIABILITY:The liability of ECI under this Agreement shall be limited to the extent provided in Paragraph 9
of this Agreement and this Paragraph. IT WOULD BE IMPRACTICAL AND EXTREMELY DIFFICULT TO FIX ACTUAL DAMAGES,
WHICH MAY ARISE IN SITUATIONS WHERE THERE MAY BE A FAILURE OF THE SERVICE OR EQUIPMENT PROVIDED BY ECI
DUE TO THE UNCERTAIN NATURE OF THE VOLUME,NATURE,CONTENT AND VALUE OF MESSAGES,SIGNALS OR
COMMUNICATIONS TRANSMITTED AND RECEIVED BY CUSTOMER. THEREFORE,IF ANY LIABILITY IS IMPOSED ON ECI,
SUCH LIABILITY SHALL BE LIMITED AS PROVIDED HEREIN AND IN PARAGRAPH 9 HEREOF,WHICH SHALL BE ECI'S SOLE AND
EXCLUSIVE LIABILITY HEREUNDER. ECI SHALL NOT BE LIABLE FOR ANY SPECIAL,INCIDENTAL,INDIRECT,CONSEQUENTIAL
OR PUNITIVE DAMAGES OF ANY NATURE OR FOR THE LOSS OF REVENUE,PROFIT,DATA OR ECONOMIC LOSS OF ANY KIND
FOR ANY REASON WHATSOEVER.
The liability of ECI for damages arising out of omission,interruptions or delays or defects in the service or equipment
provided by ECI or for breach of the warranties set forth in Paragraph 10,or otherwise,shall in no event exceed an amount
equivalent to the proportionate charge to Customer for the affected service or equipment for the period during which
mistake,omission,interruption,delay,error or defect occurs,in accordance with Paragraph 9.
12. INDEMNIFICATION:
12.1. In the event any claim,demand,lawsuit or liability("Claim")is made or asserted against Customer by any third
party and the same is caused by any grossly negligent or willful act or omission of ECI,or ECI's infringement upon
the intellectual property rights of any third party,then,and in such event,ECI shall indemnify,defend and hold
harmless Customer and its agents and representatives from and against all Claims,including the payment of
Customer's reasonable attorneys'fees to defend such action.
12.2. In the event any Claim is made or asserted against ECI by any third party and the same is caused by any grossly
negligent or willful act or omission of the Customer or Customer's infringement upon the intellectual property
rights of any third party,then,and in such event,Customer shall indemnify,defend and hold harmless ECI and its
agents and representatives from and against all Claims,including the payment of ECI's reasonable attorneys'fees
to defend such action.
12.3. The parties'respective liability pursuant to this Section 12 shall,under no circumstances,exceed the fees paid by
Customer to ECI in respect of the previous twelve(12)months'Services.
13. TERMINATION:
11.1, Termination by ECI:ECI may terminate this Agreement without notice to Customer if(a)Customer is in arrears in
the payment of any undisputed amount which is due hereunder for more than sixty(60)days from the date of the
initial bill therefore or(b)Customer is in arrears in the payment of any disputed amount,ultimately determined by
ECI to be properly due and payable,for more than fifteen(15)days following such determination,or(c)at any time
that,in the judgment of ECI,Customer lacks the financial ability to perform under this Agreement or if the account is
of a financially hazardous nature. ECI may also terminate this Agreement without further notice to Customer if ECI
reasonably determines that Customer is misusing or abusing the system or is using such service for an unlawful
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purpose or if Customer is otherwise in default of this Agreement.
112. Termination by Customer: Customer may terminate this Agreement in accordance with Section 3 hereof,or by
notifying ECI of its intent not to permit automatic renewal of this Agreement at least thirty(30)days prior to the
expiration of the then-current Renewal Term.
13.3. Termination by Either Party:Either party shall have the right to terminate this Agreement,without liability,if ECI
is prohibited from furnishing the Services or if any material rate or term contained herein is substantially changed
by order of the highest court of competent jurisdiction to which the matter is appealed,the Federal
Communications Commission,other local,State or Federal government authority.
14. CHOICE OF LAW:This Agreement and performance hereunder shall be governed by the laws of the State of California,
without reference to any conflict of laws rules or principles.
15. ASSIGNMENT:Customer shall not have the right to assign its rights in this Agreement without the prior written approval of
ECI. ECI may assign this Agreement so long as it does not affect the service provided hereunder.
16. BINDING EFFECT:The Agreement shall be binding upon and shall inure to the benefit of the parties hereto and their
respective successors and assigns.
17. WAIVER:The waiver in writing by either party of any rights granted to it shall not operate as a waiver of any of the rights
or future breach of any such provision or any other provision hereof. The failure to enforce any provision of this
Agreement shall not constitute a waiver of either party's right hereunder unless such waiver shall be in writing signed by
both parties to this Agreement.
18, ENTIRE AGREEMENT:This Agreement and ECI's FCC and respective local and long distance state tariffs comprise
the entire Agreement between the parties on the subject matter contained in this Agreement and supersede all
prior representations,agreements,and understandings of the parties,including,without limitation,any letter of
intent,letter or memorandum of understanding,or similar documents.
19. ADDITION MODIFICATION:No addition to or modification of this Agreement shall be binding unless executed in writing
by all parties. Notices:All notices or other communications given in connection with this Agreement shall be made in
writing and either delivered in person,or by a recognized overnight courier service,or deposited with the United States
Postal Service as first-class certified mail,postage prepaid,and return receipt requested,to ECI at the following address:
Ernest Communications,Inc.
5275 Triangle Parkway
Suite 150
Norcross,GA 30092
Such communication shall be effective upon receipt or four(4)days after mailing. The notice address as provided
herein may be changed by written notice given as provided above.
20. SEVERABILITY:In the event that any of the terms of this Agreement or the application of any such term shall be held to be
invalid by any court of any competent jurisdiction,the remaining terms of this Agreement,or their application,shall not be
affected thereby and shall remain in full force and effect.
21. FORCE MAJEURE:ECI shall be excused for any failure,delay,or interruption in performing its obligations hereunder that is
due to causes or conditions beyond its control,including,without limitation,acts of God,elements,weather conditions,
earthquakes,settlements,fire,accidents,sabotage,power failures,cable cuts,acts or omissions of governmental
authorities(including regulatory authorities and courts),shortages of labor and materials,acts of third parties for which
ECI is not responsible,injunctions,labor disputes of every kind(including those which affect ECI or its contractors,suppliers
or subcontractors),or any other conditions or circumstance,whether similar to or different from the foregoing,which is
beyond the control of ECI or which cannot be
prevented or remedied by reasonable effort and at reasonable expense.
22. LEGAL COMPLIANCE:The parties agree that this Agreement will be carried out to compliance with all local,state and
federal laws,regulations and decisions.
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Local Service Customer Agreement
23. EFFECTIVE DATE:This Agreement shall become effective on the date made and entered into.
24. BINDING,TERMS AND CONDITIONS:CUSTOMER ACKNOWLEDGES THAT CUSTOMER HAS READ THIS AGREEMENT,
UNDERST ND$IT,AND AGREES TO BE BOUND BY ITS TERMS AND CONDITIONS.IN WITNESS THEREOF,the parties hereto
have caused this Agreement to be executed by their duly authorize resen tives.
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Pete Aguilar,Mayor r{ for ommu ations {
Attest;
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Sara Irwin,City C1 Print Name
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Title Title
Date ,- Date
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� LOA Agreement
Authorization Agreement
Ernest Communications,Inc.("ECI")is hereby authorized to handle all negotiations for service requests and the
issuance of orders on our telephone service at the locations above or attached list until further notice. This
authorization does not preclude our ability to act on our own behalf to change service providers. ECI is further
authorized to become my primary local exchange provider. Customer understands that they may designate only one
local phone company, one IntraLATA provider and one InterLATA provider for each line herein,
Customer verifies that the authorized representative is over 18 years of age and is authorized as the decision maker
associated with the lines and service herein to switch service to ECI. Customer further understands that ECI is not
responsible under any circumstances for any early termination fees or penalties associated with any term
agreements for any lines or associated accounts from any other local or long distance company invoices for reasons
either known or unknown by customer or ECI. Customer understands all local and long distance services are subject
to applicable state tariffs and ECI's terms and conditions available in ECI's publicly filed local and long distance
tariffs. Customer understands state, federal,local and municipal taxes,surcharges and certain fees will also apply in
addition to the rates listed herein.
ECI's payment terms are NET 15 days from date of invoice.
Customer Information
Customer Name: CITY OF REDLANDS
Location Address: 35 CAJON STREET, STE 200
City/State/Zip: REDLANDS CA 92373
Contact Name: DAVID HEXEM
Contact
Contact Email:
dhexem_@cityofredlands.org Phone: _ (909) 335-4705
Billing Address(if
different): PO BOX 3005
City/State/Zip: REDLANDS CA 92373
Primary Billing
Phone Number: (909) 798-7523
Customer ■
Customer signature confirms that you understand and agree to the above. Customer further understands that
ECI and the regional bell operating companies and/or other CLEC's are separate, independent and distinct
companies and are not affiliated, in any way,with each other.
Authorized
Signature: _ _ Date: q /4
ATTEST.
Title: ��P Ctf'/_ e� �e4���AS --
Sam rwi ty Clerk
Agpnt'Representative
Representative
Signature:
Date: Z�l�
Rep/Agent Code:
Mar 2010