HomeMy WebLinkAboutSilver Star Communications 2015-16TELECOMMUNICATION SERVICES AGREEMENT
THIS TELECoMIVIUNICATIoN SERVICES AGREEMENT (thls "Agreement") is made this
8'n day of4piL-, 201 5 by and between Silver Star Communications, a dba
of Millennium Netlvorks, LLC a Wyoming company("Silver Stai') and
Bonneville Joinl School districl 93 ('Customef').
RECITALS
A. Silver Star Communications owns and operates a fiber network in ldaho and
Wyoming, together with such associated facilities, equipment or services, including but not limited
to switches and electronic equipment, necessary or convenient for the purpose of transporting
telecommunications traffic, and for other purposes.
B. Customer desires to use ce(ain Silver Slar Communications Services,
NOW, THEREFORE, in consideration of the terms, covenants and conditions set forth
herein, and other good and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereto agree as follows:
1. Scooe of Aoreement. Silver Star agrees to provide, and Customer agrees to
purchase from Silver Star, the telecommunication services described in Exhibit A
("Telecommunications Services"), which is attached hereto and incorporated by reference herein.
1.1 Service and Price Chanoes. Unless otherwise specified in Exhibit A,
Silver Slar Communications reserves the right to cancel or change any service offering or alter
the prices for individual Telecommunication Services upon 90 days written notice to Customer.
1.2 Additional Services. With Silver Star Communications' concurrence,
Customer may order additional or different Telecommunicalion Services, and each such change
or addition will be memorialized in a revised Exhibit A. Each revision of Exhibit A will be
incorporated in this Agreement in the same manner as the original Exhibit A.
1.3 Other Providers. Customer acknowledges and agrees that certain
Telecommunication Services, or components thereof, may be offered by Silver Star
Communications' affiliates, underlying service providers, subcontractors or vendors.
1.4 Non-Exclusive. This Agreement is non-exclusive and shall not prevent or
prohibit either Party From entering into similar agreements for similar services with third parties.
2. Compensation.
2.1 Pavment of Comoensatlon. Unless otherwise provided in Exhibit A,
Customer shall pay to Silver Star Communications, in advance, the nonrecuning amounts set
forth on Exhibit A upon execution of this Agreement, and shall continue to pay applicable monthly
recurring payments thereafter as long as the Agreement is in effect.
22 Pavment Schedule
221 S∥ver Star Communicatons w∥lfon″ard an involce to Customer on
or before the first ('1"t) day of the month for Telecommunication Services to be provided during
the following month after the invoice is foMarded.
2.3 Customer shall pay the invoice within thirty (30) days of receipti provided,
however, that the compensation shall be paid by Customer, regardless whether an invoice is
received, on or before the first (1sr) day of the month for which Silver Star Communications is to
provide the Telecommunication Services.
2.4 Default Pavments. lf Customer defaults in the payment of any sum due
hereunder, then such unpaid amount shall bear interest at the rate of four percent (40lo) over the
prime rate as published in the Wall Street Journal Western Editlon on the date of such default
from the date due to the date of payment. ln addition, if Customer defaults in the payment of any
sum due hereunder, Customer shall pay to Sllver Star Communications a late charge equal to
five percent (5%) of the overdue amount. The parties hereby agree that such late charge
represents a fair and reasonable estimate of the costs Silver Star Communications will incur by
reason of late payment of Customer. Acceptance of such late charge by Silver Star
Communications shall in no event constitute a waiver of Cuslomer's default with respect to such
overdue amount, nor prevent Silver Star Communications from exercising any of the other rights
and remedies granled hereunder,
3. Mutual Coooeration. Each partywill cooperate with the other, and takeall actions
necessary and appropriate for the connection of Cuslomer's network with the Telecommunication
Services provided by Silver Star Communications. Each party will take such measures as may
be reasonably necessary to inform the other party in advance of any changes in its network or
practices that may aFfect the other party's network or services.
4. Term of Aoreement. The term of this Agreement shall be defined in Exhibit A and
shall commence on the date the Agreement is executed by the Parties. ln addition, Silver Star
Communications may terminate this Agreement at any time, with or without notice, if it reasonably
concludes that Customer's use of the Telecommunication Services is unlaMul or threatens the
integrity and functionality of Silver Star Communications' network.
5. Continuitv of Service. Sllver Star Communications shall use its best efforts to
service and maintain the Telecommunication Services in conformity with the operations and
procedures set forth in its tariffs, operating manuals and any other specificalions or maintenance
requirements as may be in accordance with industry standards.
5.1 lnterruoted Service. Silver Star Communications shall notify Customer of
any anticipated or planned service interruption and Customer will cooperate with Silver Star
Communications to take appropliate actions to restore service availability.
6. Limitation of Liabilitv. lf the Telecommunication Services are unavailable for ten
(10) conseculive hours during any calendar day and such unavailability results from the failure of
equipment or facililies of Silver Star Communications, Silver Star Communications will credit a
prorated amount to Customer's account in an amount equal to the charges which would have
been charged by Silver Star Communications to Customer during the period when services or
access is unavailable. This credit shall constitute lhe sole available remedy for any Silver Slar
Communications enors, interruptions or defects in the ordering processing, provisioning or
transmission of services. In no event shall Silver Star Communicalions be liable to any person
or entity for any indirect, consequential, special, incidenlal actual or punitive damages, or for any
lost profits of any kind or nature, arising out of the performance of this Agreement.
7. Warranties.
7.1The Parties. Each Party represents and warrants it is, and will remain, duly
organized, validly existrng, and in good standing under the laws of the place of its origin, and
possesses all the authority necessary to enter into and perform its obligations under lhis
Agreement.
7.2 Silver Star. Silver Star Communications represents and warrants that: (a)
its on-Net Service is designed, installed, provided, and maintained in compliance with applicable
legal requirements; and (b) it possesses, and will maintain, all licenses, approvals, registrations
and certifications required by regulators or other third parties to furnish its Services to Customer.
7.3 Customer. Customer represents and warrants that: (a) services it fumishes
to its End Users are designed, installed, provided, and maintained in compliance w(h applicable
legal requirements and those established in this Agreement; (b) all Custom Silver Star
communications traffic handled by Silver Star communications is compliant with applicable legal
requirements and those established in this Agreementi and (c) it possesses, and will maintain, all
licenses, approvals, registrations and certifications required by regulators or other lhird parties to
furnish its services
7 .4 Exclusion of Other Wananties. THE WARMNTIES SET FORTH lN
SECTIONS 7.1.7.3 ARE IN LIEU OF ALL OTHER WARMNTIES, WRITTEN OR OML,
STATUTORY, EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, THE
WARMNTY OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE OR
USE, NON-INTERFERENCE, AND NON-INFRINGEMENT.
L Relationshio of the Parties. This Agreement does not constitute either party as
an agent, legal representative, joint venturer, partner, franchisee or employee of lhe other party
for any purpose. Each party shall be an independent contractor and is in no way authorized to
make a contract, agreement, warranty, or representation on behalf of the other or to create any
obligation, express or rmplied, on b€half of the other. The parties agree that this Agreement does
not constitute a fiduciary relationship between Silver Star Communications and Customer.
9. Confidentialitv. Unless required by law, the parties shall not disclose, duplicate or
copy, or make use of this Agreement and any exhibits for any purpose other that the performance
of this Agreement, and shall treat as confidential and proprietary the terms and conditions of his
Agreement and all information supplied or disclosed to each other in connection with this
Agreement.
10. Assionment. Either parly may assign its rights and/or obligations under this
Agreement, or any portion thereof, upon the written notice to the other party. Any assignee must
become obligated to the terms of this Agreement prior to said assignment.
11 Notice. Any notice under this Agreement shatt be in writing and shall be delivered
in person or by public or private courier service (including U.S. Postal Service Express Mall and
Federal Express) or certilied mail or by facsimile. Anynotice given by certified mail shall besent
with return receipt requested. Any notice given by facsimile shalt be verified by a facsimile
conflrmation. All notices shall be addressed to the parties at the Following addresses or at such
other addresses as the parties may from time to time direct in writing:
lf to Customer:
Bonnev∥le」oint School Dist「ict 93
3497 N Ammon Road
ldaho Fa∥s idaho 83401
lf lo Silver Star Communications:
Silver Star Communications
Attn: Legal & Regulatory Administrator
P.O. Box 226
Freedom, WY 83120
Facsimile: 307 -883-257 5
Any notice shall be deemed to have been given on (a) actual day of delivery or refusal to accept
delivery, (b) the day of mailing by registered or certified mail, or (c) the day facsimile transmission
is verified.
12 Defaun
12.1 Events of Default. The occurrence of any one or more of the following
events shall constitute a default under this Agreement:
12.1.1 FailUIe by Customer to make any payment or other compensation
payable by Customer to Silver Star Communications when due under the terms of this Agreement;
or
12.1.2 F alluIe by either party in performing any other term, covenant, or
condition of this Agreement upon the expiration of thirty (30) days from receipt of written notice
from the other party, or the inaccuracy in any material respect of any represenlation or warranty
made by either party to the other.
12.2 Defaultinq Partv's Riqht to Cure. The party failing to perform shall nol be
deemed to be in default if such party, prior to the expiralion of said thirty (30) days, has cured
such failure as set forth in the notice of default. With respect to any non-monelary default that
cannot reasonably be cured within thirty (30) days, the default shall not be deemed to be uncured
if the defaulting party commences cure within thirty (30) days for so long as the defaulting party
is diligently prosecuting the cure thereof.
12.3 Non-defaultino Partv's Rioht to Perform. lf the defaulting party fails to pay
any sum of money required to be paid by such party to a person or entity other than the non-
defaultlng pa(y or fails to perform any other act to be performed by such defaulting party
hereunder, and such failure continues for thirty (30) days after notice thereof by the non-defaulting
party, the non-defaulting party may, but shall not be obligated so to do, and without waiving oi
releasing the defaulting party from any of its obligations, make any such payment or perform iny
such other act on the defaulting party's part to be made or performed as provided in thii
Agreement.
13. Soecific performance. Each party agrees that the other party would beirreparably damaged if any of the provisions of this Agreement are not performed in accordance
with their specific terms and that monetary damages would not provide an adequate remedy in
such event. Accordingly, it is agreed that, in addition to any other remedy lo which the non-
breaching paiy may be entitled, at law or in equity, the non-breaching party shall be entitled to
injunctive relief to prevent breaches of the provisions of this Agreement and specifically to enforce
the terms and provisions hereof.
14. Remedies. ln the event of a default by either party, which is not corrected within
the time frames specified herein, lhe non{efaulting party shall be entitled to all rights and
remedies available at law or in equity, including, without limitalion, specific performance of the
terms of this Agreement against the defaulting parly.
15. Force Maieure. With the exception of payment of fees and charges due under
this Agreement, a party shall be excused from performance, if its performance is prevented by
acls or events beyond the party's reasonable control, including but not limited to, severe weather
and storms; earthquakes or other natural occulrences; strikes or other labor unrest; nuclear or
other civil or military emergencies; or acts of legislative, judicial, executive, or administrative
authoritles.
16. Severabilrtv. lf any provisions of this Agreement shall be determined to be void
by any court of competent jurisdiction, then such determlnation shall nol affect any other provision
of this Lease and all such other provisions shall remain in full force and etfect and shall be valid
and enforceable to the fullest extent permitted by law.
17. lndemnification. Each parly lo this Agreement hereby indemnifies and holds
harmless the other party with respect to any third-party claims, lawsuits, damages or court actions
arising from performance under this Agreement to the extent that the indemnifying party is liable
or responsible for said third-party claims, losses, damages, or court actions. Whenever any
claim shall arise for indemnification hereunder, the party entitled to indemnification shall promptly
notify the other party of the claim and, when known, the facts constituting the basis for such a
claim. ln the event that one party to this Agreemenl disputes the other party's right to
indemnification hereunder, the party disputing indemniflcation shall promptly notify the other party
of the factual basis for disputing indemnification. lndemnification shall include, but is not limited
to, costs and attorney fees.
18. Governino Law. lt is agreed that this Agreement shall be governed by, construed,
and enforced in accordance with the laws of the State of ldaho.
19. Successors and Assiqns. This Agreement and all terms and conditions hereof
shall be binding upon and shall inure to the benefit of all authorized heirs, successors in interest
or assignees of either party hereto.
20. Entire Aoreement. This Agreement, together with all exhibits, notices,
appendices and any jointly executed written supplements hereto, represent the enlire agreement
contemplated by the parties hereto. lt is understood and agreed by the parties that there are no
verbal promises or implied promises, agreements, stipulations or other representations of any
kind or characler pertaining to the Telecommunic€tion Services between them other than as set
forth herein.
21. Written Modification. No modification, release, discharge, or waiver of any
provisions hereof shall be of any force, effect or value unless in writing signed by both parties or
their duly authorized agent or attorney.
22. Waiver. No covenant, term or condition contained in this Agreement nor the
breach thereof shall be deemed waived, except by written consent of the party against whom the
waiver is claimed, and any waiver of the breach of any covenant, term or condition shall not be
deemed to be a waiver of any other covenanl, term or condition herein. Acceptance by a party
of any performance by another party after the time lhe same shall have become due, or failure to
insist upon performance, shall not constitute a waiver by the first party of the breach or default of
any such covenant, term or condition unless otherwise expressly agreed to by the first party in
wflting.
23. Counteroarts. This Agreement may be executed in counterparts and upon every
party having executed a counterpart, each signed copy shall have the same force and effect as
an original document and as if the parties to the counterparts had signed the same document.
24. Attorneys' Fees. ln the event of any controversy, claim or action being filed or
inslituted between the parties hereto to enforce or interpret the terms and conditions of this Lease,
or arising from the breach of any provision thereoF, the prevailing party will be entitled to receive
from the other party all costs, damages and expenses, including reasonable attorneys'fees,
through all levels of action, incurred by the prevailing party, whether or not such controversy or
claim is litigated or prosecuted to Judgment. The prevailtng party will be that party who is
awarded judgment as a resull of trial or arbitration, or who receives a payment of money or other
concession or agreement from the other pa(y in settlement of claims asserted by that party.
25. Caotions. The captions inserted in this Agreement are for convenience only and
do nol define, limit or otherwise describe the scope or intent of this Lease o[ any provision hereof
nor affect the interprelalion of this Agreemenl.
26. Time of Essence. Time is hereby expressly declared to be of the essence of each
and every covenant, term, condition and provision of this Agreemenl.
27 . Additional Acts. The parties hereto agree to execute and deliver any documents
or instruments and to take any and all actions reasonably necessary to carry out any agreement,
term or condltion of this Agreement, whenever the occasion may arise and roquest for such action
shall be made.
The parties have executed this Agreement on the date first above written.
Customer:
町
Name: S.ntt Wnolstenhl rlme
Its: ASSiStant Superinre^.tant
Silver Star Communications:
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Namo 彫`を
ノ″浄″(c
hs ρ.rに Vο `。(tt/ぃ
EXHIB:TA
(SEE ATTACHED QOUTE SSCQ1619)