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HomeMy WebLinkAboutFS 2012-12-04 Item 2A - Agreement - City-wide Telephone Services with Integra Telecom City of Tukwila Jim Haggerton, Mayor ••= INFORMATIONAL MEMORANDUM TO: Mayor Haggerton Finance and Safety Committee FROM: Mary Miotke, IT Director DATE: December 4, 2012 SUBJECT: Renewal of Phone Services Agreement with Integra Telecom ISSUE In 2010, the Council authorized a 2-year contractual agreement with Integra Telecom to provide phone service for our VoIP phone system and internet connection, locking in competitive pricing. It is time to renew the agreement in order to retain the pricing for the services at the same amount as agreed to in 2010. BACKGROUND Over the past several years we have finalized the configuration of our VolP system; we have replaced lines from other service providers, eliminated unused/underutilized lines, and converted all possible lines to digital lines instead of analog for cost savings. A few fax lines remain as analog (for now), as well as all alarm, security and phone system backup lines. We have standardized our phone service with Integra Telecom, who has provided competitive pricing with excellent, responsive service. DISCUSSION We have reached the end of the original Integra Master Service Agreement (MSA) term and our monthly service invoices are now on a month-to-month basis and subject to price increases. Integra has provided their latest MSA; our attorneys have added/changed language regarding indemnification and liability; and an Addendum has been included that guarantees our pricing even if Integra imposes surcharges. The estimated cost of services for the next two years is within the amount of$60,000 budgeted per year for City-Wide communications in the 2013/14 budget. By agreeing to another 2-year term and upon signature of the MSA and Addendum, the pricing will remain the same as it was in the previous agreement. All charges since July 2012 (when the original agreement ended), which were billed at the higher rate, will be credited back to us. Once the agreement is in place, the City will again have a 24-month fixed rate for budgeting purposes. Attached is an overview of service charges for 2012, with estimates through the end of the year. RECOMMENDATION The Council is being asked to authorize the Mayor to sign the updated MSA and the Addendum to the MSA, plus any change orders the City may request throughout the term of the agreement, in an amount not to exceed $120,000 for the 24-month term and consider this item under the Consent Agenda at the Special Council meeting following the December 10,2012 Committee of the Whole. ATTACHMENTS Integra Telecom Master Service Agreement, revised 11/20/12 Addendum to the Master Service Agreement Phone Service Cost Estimate Spreadsheet 1 2 intezra TELECOM ADDENDUM to the Master Service Agreement This Addendum to the Master Service Agreement is executed by and between Integra Telecom Holdings, Inc., an Oregon company with headquarters at 1201 NE Lloyd Blvd., Ste. 500, Portland, Oregon 97232, by and through one of its wholly- owned subsidiaries as may be certificated in the applicable state to provide services ("Integra") and City of Tukwila ("Customer"). WHEREAS, the Parties have entered into a Services Agreement for the provision of services as described in the Services Agreement,and; WHEREAS,the Master Service Agreement("MSA")sets out the terms and conditions for the delivery of service described in the Services Agreement and is incorporated therewith(together,"Agreement"),and; WHEREAS, the Parties seek to amend the terms of the MSA to address the unique needs of Customer and the unique circumstances of service as more specifically set forth below. NOW, THEREFORE, in consideration of the mutual promises and covenants contained in the Agreement, and for other good and valuable consideration,the receipt and sufficiency of which are hereby acknowledged,the Parties hereby mutually agree as follows: 1. Integra Telecom during the term of this agreement will guarantee to not increase the rates for the services listed on the contract. During this contract term some Integra imposed surcharges or fees may increase and if so Integra will adjust our product prices down to compensate for that increase. This pricing guarantee does not include the rates for any government imposed taxes,fees or surcharges. 2. Except as specifically set forth herein,the terms and conditions of the Master Service Agreement and any Services Agreement remain unmodified and in full force and effect. City of Tukwila Integra By: By: Printed Name: Printed Name: Title: Title: _5i%ile r-, fi'T Date: Date: 1( : 3 INTEGRA TELECOM MASTER SERVICE AGREEMENT Integra Telecom Holdings, Inc., by and through its subsidiaries (hereinafter"Integra") and customer, as named on the Service Agreement and the signature page hereto("Customer'), hereby agree to the following terms and conditions contained in this Master Service Agreement (this "Agreement") for the provision of Services (as defined below) to Customer by Integra, as of the date of the Service Agreement(as defined below). 1. EFFECTIVE DATE, SERVICES, AND SERVICES TERM. This Master Service Agreement, along with the order for service ("Service Agreement(s)"), any attachments, the policies and procedures found on Integra's website: www.integratelecom.com, and any filed tariffs, price lists or schedules, comprise the entire agreement between the parties ("Agreement"). Details pertaining to each service ordered by Customer(the"Service') are set forth in the Service Agreement entered into in connection with this Agreement. This Agreement supersedes any and all prior discussions, representations, memoranda, or agreements; oral or written, between the parties related hereto. Integra reserves the right, in its sole reasonable discretion, to reject any Service Agreement prior to Integra's signature. Integra agrees to provide to Customer(subject to availability and adequacy of underlying service)and Customer agrees to procure from Integra, the Services at the locations set forth for the number of months set forth ("Services Term") as detailed on the Service Agreement(s) incorporated as part of this Agreement. Installation of Services occurs at the delivery of operating circuits (the"Installation of Service") to the demarcation terminal at the location where Integra's facilities interconnect with Customer's or any third party's facilities (the "Demarcation Point"). The Services Term commences upon the Installation of Service by Integra (the"Installation Date"). Integra will use reasonable efforts to install Services on the date agreed upon by the parties; however, Integra does not guarantee that Services will be installed and provisioned on Customer's desired due date. Upon the expiration of the Services Term, this Agreement and the Services will continue month-to-month until terminated by either party upon expiration of thirty(30)days'written notice to the other parry. 2. RATES, CHARGES, BILLING AND PAYMENT. Rates and charges, service levels and credits are described in the Service Agreement. Integra will notify Customer when Customer's circuit has been delivered and Installation of Service has occurred. Upon or prior to Installation of Service, Customer agrees to convert its services from its present provider, if any. Customer agrees that billing will commence with Integra's first regular billing cycle after Installation of Service regardless of Customer's actual conversion date. Monthly recurring charges ("MRC") will be billed in advance each month. Non-recurring charges ("NRC") will be billed on the first invoice after the Installation Date, or if the NRC are incurred after the Installation Date, or are usage based, such charges will be billed on the next invoice thereafter. Integra may bill Customer for billing corrections or adjustments for Services rendered within one hundred eighty (180) days from the date of Service unless a different period is required by applicable law, rule, regulation or order. Customer is responsible for payment of all charges associating with the Services, including without limitation, charges for originating and terminating calls to Customer's telephone number(s). Payments are due on the Payment Due By date set forth on the Integra invoice, provided, however, that no Payment Due By date is less than Net thirty (30) days. Customer must provide payment in full on Payment Due By date. If Customer believes it has been billed in error or otherwise disputes a charge, Customer must notify Integra within 90 days of the date of the invoice containing the disputed charge unless a different period is required by applicable law, rule, regulation or order. Customer's notice must specifically detail the dispute and provide supporting documentation for the amount in dispute. Integra will investigate all disputes and notify Customer of the results of its investigation and, if appropriate, credit Customer's account or notify Customer of denial of the dispute. Acceptance of payments of less than the full amount due, including an instrument tendered as full satisfaction of a debt, shall not be deemed, in the absence of a written agreement executed by both parties, an agreement on the part of Integra to accept less than the full amount due. Any tender of an instrument as full satisfaction of a debt, must be sent to the Legal Department of Integra. Integra may assess a late fee of 1.5% per month (not to exceed the maximum rate allowed under state law) on any undisputed balances not paid when due or any disputed balances later found to be correct. Late fees may be assessed, as of the original Payment Due By Date, against any disputed amount denied by Integra. Integra has the option to suspend Services and/or to pursue any and all other legal remedies until payment is made. Termination of Services may follow. Customer will pay any and all costs incurred in collection of rates and charges due and payable, including reasonable attorney's fees and all collection agency costs, whether or not a suit is instituted. All payments hereunder will be in U.S. currency. Page 1 of 8 v.RMSA3-290611 4 This Agreement is subject to credit approval. Customer hereby authorizes Integra to conduct a credit search and agrees to provide Integra with information regarding payment history for communications services, number of years in business, financial statement analysis and commercial credit bureau rating. Integra may require Customer to tender a deposit up to the maximum permitted by law to guarantee payment hereunder. Such deposit may have, as an additional component, deposit for any Integra-provided Customer Premise Equipment. When Customer establishes acceptable credit history or upon termination of this Agreement, Integra will return the balance of the deposit, if any, to Customer along with interest as required by law. Integra shall not be liable for any third party charges arising from or related to the termination of any previous agreement for services or the failure of Customer to terminate any previous agreement for services. If any property owner, under which Customer is a tenant, assesses a fee against Integra in order to, or as a result of, the provisioning of any Services to Customer, Integra may pass through such charges to Customer. 3. POLICIES AND PROCEDURES. Integra may change its policies and procedures found at www.integratelecom.com upon thirty (30) days' notice to Customer. Use of Integra services after the thirty (30) day notice period shall be deemed consent to the changed policies and procedures. In addition, Integra may change its rates and other charges for various Services upon thirty (30) days' notice to Customer. In the event an increase in rates or charges for Services occurs, Customer shall have thirty (30) days to terminate the affected Services by written notice to Integra, without further obligation or early termination charges, other than payment for the Services used until the date of termination. Such termination shall be effective thirty (30) days after Integra's receipt of the termination notice. Failure to timely give notice of termination shall be deemed consent to the changed rates and charges. 4. FRAUD, TELEPHONE NUMBERS AND DIRECTORY LISTINGS. Customer is responsible for payment of any charges incurred due to fraud, abuse, or misuse of the Services, whether known or unknown, to Customer. It is the Customer's obligation to take all measures to ensure against such occurrences. Telephone numbers are assigned to the business entity (Customer) named on the Service Agreement and not to any individual owner or operator of the business. Customer shall designate those individuals authorized to make changes to the Customer's account with Integra, including changes to the Services or to the telephone numbers in conformity with the Rules (as hereinafter defined). Integra shall be held harmless for any changes authorized by the individuals designated by Customer. Integra shall take all reasonable measures to provide Customer with continuation of existing telephone numbers. However, if Customer is changing location at the time of conversion or taking service for the first time at a location, Integra makes no warranties regarding assignment of particular telephone numbers to Customer. Integra shall not be liable to Customer for any change in, including loss of, telephone numbers if Customer is in default under this Agreement or the Service Agreement, or if such change or loss is due to actions of any vendor or supplier of services to Integra. Customer's reliance upon and/or use of any Service numbering information prior to installation and acceptance of Service is at the Customer's sole risk. Integra shall not be liable for any inaccurate or dropped listings of any publisher/directory database. Integra shall not be liable for any errors or omissions, whether arising through negligence or otherwise, in the information furnished to a publisher or to a directory database(s). Additional costs may be assessed for publisher/directory database listing charges. 5. TAXES, SURCHARGES, FEES AND ASSESSMENTS. Customer is responsible for payment of any and all federal, state and local taxes, surcharges, or fees, as may be imposed from time to time (excluding Integra income taxes). Integra will collect all such taxes, surcharges, and fees unless Customer provides Integra with proof of exemption. Customer will indemnify Integra for any and all costs, claims, taxes, charges, and surcharges levied against Integra relative to such exempt status. Surcharges and assessments, which are not required by regulatory agencies, but which Integra is permitted to charge to recover expenses, may be applied. All such charges will be set forth on a detailed invoice. Page 2 of 8 v.RMSA3-290611 5 6. TARIFF APPLICATION. In the event of any conflict between any provision of this Agreement and any provision of an applicable filed tariff or price list, the provision of such filed tariff or price list will control. 7. COMPLIANCE WITH LAW. This Agreement is subject to all applicable federal, state, and local laws, regulations, rulings, orders and other actions of governmental agencies ("Rules"), and the obtaining and continuance of any required approvals, authorizations, or tariffs or price lists filed with fhe FCC or any other governmental agency. Integra will use good faith reasonable efforts to obtain, retain, and maintain such approvals and authorizations. If any such Rule adversely affects the Services or requires Integra to provide Services other than in accordance with the terms of this Agreement, either party may, without liability to the other party, terminate the affected Services upon thirty (30) days prior written notice to the other party. In performing their obligations under this Agreement, the parties will comply with all applicable Rules, specifically including, but not limited to, the Rules governing 911/E-911 and any other emergency services. Subject to Integra's 911/E-911 policy (found at www.integratelecom.com), and unless otherwise specifically agreed, (a) Integra will provide Customer with the network connection for each circuit, billing telephone number(BTN) or trunk group that comprise the Services, and (b) Integra will provide the appropriate Public Safety Answering Point(PSAP) with the automatic location identification (ALI), including the same emergency response location, for all BTNs of the circuit or trunk group regardless of the number of lines, trunks, or unique telephone numbers on that circuit or trunk group. Customer will be responsible for providing all other 911/E-911 services as required by the Rules, including, but not limited to agreements with, and network or other connection to, the local PSAPs. Customer will maintain the necessary databases and update and transfer the ALI to the appropriate PSAPs. Integra is not responsible for and will not make any changes or submit updates to 911/E-911 databases for any services other than the one emergency response location as set forth above. Customer agrees to fully indemnify, defend, and hold harmless Integra, its officers, directors, parent, and affiliated companies, employees, agents and subcontractors from all liabilities, claims, fees, expenses, costs or damages of any kind arising out of personal injury or death or damage to property related to Customer's failure to meet any 911/E911 requirements or agreements. 8. SERVICES, MAINTENANCE AND UPGRADE OF FACILITIES. Services will meet industry standards. Integra will maintain its facilities and equipment used to provide the Services as set forth in its policies and procedures, at no additional charge to Customer, except where work or service calls result from failure or malfunction in, or improper operation of, or improper operation of, any third party's facilities and/or equipment after the Demarcation Point or Customer's facilities and/or equipment. In such event, Customer will reimburse Integra for the cost of the required maintenance at Integra's standard time and material rate plus any taxes imposed upon Integra related to such maintenance, and Customer shall be responsible for the cost of repair or replacement of Integra equipment that is damaged by Customer's actions or equipment. Integra reserves the right to suspend Service for scheduled maintenance or planned enhancements or upgrades upon twenty-four (24) hours' notice to Customer or to suspend Service for emergency repairs to Integra's network without notice to Customer. Integra equipment will remain the sole and exclusive property of Integra or Integra's assignee. Customer will not tamper with, remove or conceal any Integra identifying plates, tags or labels. Customer will indemnify, hold harmless and defend Integra against any liens placed on Integra equipment due to Customer's action or inaction. Any lien will be discharged by Customer within ten (10) days of notice of filing. Failure to discharge any such lien is a material breach of this Agreement, and may result in immediate termination. Customer will provide equipment compatible with the Services and Integra's network and facilities. Customer will bear the costs of any additional apparatus reasonably required to be installed because of the use of Integra's network or facilities. Upon termination of the Service, Customer shall, upon notice from Integra, return the Integra provided equipment to Integra, in accordance with the instructions in the notice. Customer's damage to the equipment or failure to return the equipment, including but not limited to the battery pack, as directed, shall constitute Customer acceptance of ownership of and responsibility for the equipment and Integra may invoice Customer for the then fair market value of such equipment. Integra reserves the right to substitute, change or rearrange any equipment used in delivering Services that does not affect the quality, cost or type of Services. Integra will manage its network in Integra's sole discretion. Customer will provide all reasonable information, authorizations, and access Page 3 of 8 v.RMSA3-290611 6 required by Integra for the purpose of installing Services, performing routine network grooming, maintenance, upgrades, and addressing emergencies. 9. SERVICE INTERUPTION CREDITS. Credits are subject to the limitation of liability set forth in Section 10, and shall only be given for disruption of Services (a "Service Outage") and claimed in accordance with this Section. Upon request; but not later than thirty (30) days after the Service Outage, and after approval by Integra, Customer shall be entitled to a credit for a Service Outage, which is defined as any Service disruption that exceeds twenty-four(24) hours and for which Integra is the sole cause of such disruption and such disruption is not the result of(i) scheduled maintenance that occurs between the hours of eleven pm and six am; (ii) planned enhancements, (iii) upgrades, (iv) failure or malfunction in, or improper operation of, any third party's facilities and/or equipment after the Demarcation Point or Customer's facilities and/or equipment. Such credit shall be based upon the ratio of the duration of the Service Outage (measured from the time the interruption is reported to or detected by Company, whichever occurs first) to the total time in a thirty (30) day month. That ratio, multiplied by the monthly rate for the service affected shall determine the amount of the credit allowance. No credit shall be owed for any disruption resulting from a Force Majeure event. EXCEPT AS PROVIDED IN THE LAST PARAGRAPH OF SECTION 15, CUSTOMER'S RIGHT TO CREDITS AS PROVIDED IN THIS AGREEMENT SHALL BE CUSTOMER'S SOLE REMEDY WITH REGARD TO SERVICE OUTAGES. If a Customer fails to notify Integra in the manner set forth herein with respect to the applicable service credits within thirty (30) days of the Service Outage, Customer will have waived its right to such service credits for that month. Customer's total service credit(s) in any one month will not exceed one (1) month's MRC for the affected Service for that month, and do not apply to the MRC's of any other Services. The credits outlined above shall not be compounding, but shall be distinguished by the degree of impairment based on a degradation or a complete disruption of Service such that for any particular Service Outage. Customer may be eligible for credits for a Service Outage under multiple provisions of this Agreement or any Service Order or Addendum; but Customer shall not be entitled to claim more than one credit for any Service Outage. To be eligible for service credits, the Customer must be in good standing with Integra and current in all of its obligations. 10. DISCLAIMER/LIMITED WARRANTY. EXCEPT AS SPECIFICALLY SET FORTH IN THIS AGREEMENT, INTEGRA MAKES NO WARRANTIES, EXPRESS OR IMPLIED, UNDER THIS AGREEMENT AND SPECIFICALLY DISCLAIMS ANY WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. INTEGRA DOES NOT WARRANT THAT THE SERVICES WILL BE UNINTERRUPTED OR ERROR-FREE. 11. LIMITED LIABILITY. EXCEPT AS PROVIDED IN THE LAST PARAGRAPH OF SECTION 15, CUSTOMER'S RIGHT TO CREDITS AS PROVIDED IN THIS AGREEMENT SHALL BE CUSTOMER'S SOLE REMEDY WITH REGARD TO SERVICE OUTAGES. INTEGRA'S LIABILITY AND THE EXCLUSIVE REMEDY OF CUSTOMER FOR DAMAGES ARISING OUT OF OR RELATED TO THE SERVICES AND/OR THIS AGREEMENT, WILL BE SOLELY LIMITED TO AN AMOUNT NO GREATER THAN THE AMOUNTS PAID BY CUSTOMER TO INTEGRA DURING THE MONTH OF THE OCCURANCE OF ANY CLAIM. IN NO EVENT WILL EITHER PARTY BE LIABLE TO THE OTHER PARTY FOR LOSS OF USE, INCOME OR PROFITS, LOSS OF REVENUES, LOSS OF SAVINGS OR HARM TO BUSINESS OR ANY OTHER SPECIAL, INCIDENTAL, INDIRECT, PUNITIVE OR CONSEQUENTIAL LOSSES OR DAMAGES, REGARDLESS OF THE FORSEEABILITY THEREOF. 12. CUSTOMER WARRANTIES. (a) The Customer represents and warrants that it is an entity, duly organized, validly existing and in good standing under the laws of its origin,with all requisite power to enter into and perform its obligations under this Agreement in accordance with its terms; (b)Customer represents and warrants that neither its equipment nor facilities will pose a hazard to Integra's equipment or facilities or create a hazard to Integra's personnel or customers or the public in general; (c) Customer represents and warrants that its use of the Services will comply and conform with all applicable federal, state and local laws, administrative and regulatory requirements and any other authorities having jurisdiction over the subject matter of this Agreement and it will be responsible for applying for, obtaining and maintaining all registrations and certifications which may be required by such authorities; (d) Customer represents and warrants that it will not resell all or a portion of the Service(s) provided by Integra under this Agreement. Customer will indemnify and hold Integra Page 4 of 8 v.RMSA3-290611 7 harmless from any and all loss, liability, claim, demand, and expense(including reasonable attorneys' fees) related to Customer's violation of this Section. 13. CONFIDENTIAL INFORMATION. Customer Proprietary Network Information ("CPNI") shall only be disclosed in accordance with the Rules and Integra's policies and procedures. In addition to the foregoing, the parties may have access to certain information, the ownership and confidential status of which is highly important to the other party and is treated or designated by one of the parties as confidential (herein referred to as "Confidential Information"). Except to the extent required by any applicable law, order, rule or regulation, neither parry will disclose the other party's Confidential Information, directly or indirectly under any circumstances, to any third person without the express written consent of the other party, and neither party will copy, transmit, reproduce, summarize, quote, or make commercial or other use whatsoever of the other party's Confidential Information. Each party will exercise the highest degree of care in safeguarding the other party's Confidential Information against loss, theft, or other inadvertent disclosure and take all steps necessary to maintain such confidentiality. In the event that a party is required by any applicable law, order, rule or regulation to disclose the other party's confidential information, the party required to make such disclosure shall use its reasonable best efforts to give prior notice to the other party to the extent permitted by law. 14. INDEMNIFICATION. Customer will indemnify, hold harmless, and defend Integra, its officers, directors, parent and/or affiliated companies, employees, agents and subcontractors from liabilities, claims or damages and expenses whatsoever(including reasonable attorney's fees) arising out of or in connection with Customer's use of the Services and/or Customer's end-users or third parties use of the Services, resale, or sharing of the Services. Customer's indemnification obligations do not apply to claims for damages to real or tangible personal property or for bodily injury or death which is caused by Integra's negligence. Integra shall defend, indemnify and hold the Customer, its officers, agents, officials, employees and volunteers harmless from any and all claims for damages, including attorney fees, arising out of bodily injury to persons or damages to property caused by or resulting from the concurrent negligence of Integra in connection with the performance of this Agreement, except for injuries and damages caused by the sole negligence of the City. Should a court of competent jurisdiction determine that this Agreement is subject to RCW 4.24.115,then, in the event of liability for damages arising out of bodily injury to persons or damages to property caused by or resulting from the concurrent negligence of Integra and the City, its officers, officials, employees, and volunteers, the Contractor's liability hereunder shall be only to the extent of the Integra's negligence. It is further specifically and expressly understood that the indemnification provided herein constitutes the Integra's waiver of immunity under Industrial Insurance, Title 51 RCW, solely for the purposes of this indemnification. This waiver has been mutually negotiated by the parties. The provisions of this section shall survive the expiration or termination of this Agreement. 15. DEFAULT/TERMINATION. Customer's use of the Services provided herein and any equipment associated therewith will not: (a) interfere with or impair service over Integra's network; (b)impair privacy of any communications over such network; (c)cause damage of any nature to Integra's assets or customers; (d) be used to frighten, abuse, torment or harass,or create hazards to Integra or its network; (e) be used for a high volume of short duration calls, regardless of nature(high volume short duration calls are defined as 10%of total outbound calls that are six seconds or less in duration)or(f) violate the provisions of any of Integra's policies and procedures, including Integra's 911/E-911 policy. Integra may immediately suspend or terminate,without liability,the Services for any violation of these provisions. If Services are suspended pursuant to this Section 15, reconnection charges may apply. Except as set forth above, if either party violates any provision of this Agreement the non-defaulting party may send the defaulting party written notice detailing the default. The defaulting party will have: (a) ten (10) days from the date of the written notice to cure a payment default, or (b) thirty (30) days from the date of the written notice to cure a non-payment default. If the defaulting party fails to cure, the non-defaulting party may upon notice or pursue any and all other legal remedies. This Agreement also may be terminated by either party in accordance with the provisions of the then current tariff or price list. Page 5 of 8 v.RMSA3-290611 In addition to Integra's termination or suspension rights for Customer's violation of Section 15(e), Integra may, in its sole discretion, assess a higher rate for a high volume of short duration calls to reflect Integra's increased costs. If Customer terminates this Agreement or all or any part of the Services at any time prior to the end of the Services Term, or if Integra terminates this Agreement as a result of Customer's breach, Integra may charge Customer an early termination fee equal to and including any or all of the following: 100% of the total MRC, surcharges and taxes for the Services Term then remaining, plus any unpaid activation, installation and/or special construction charges, and all other fees or costs, whether previously waived or not, less amounts already paid. Customer acknowledges that Integra's damages for early termination would be difficult to determine and the termination charge(s)constitutes liquidated damages. and is not intended as a penalty, but is intended as a mutually-agreed upon amount representing, but not limited to, lost revenue, proportionate or actual third party costs and capital expenditures, and internal costs. All such amounts will become immediately due and payable by Customer to Integra. Customer will not be liable for the early termination fees set forth above if Integra breaches the Agreement or if Customer orders from Integra, at the time of Service termination, services of equal or greater MRC than the Services terminated and the new services are approved by Integra. Separate recovery for the same damages is not permitted under this Agreement by either party. 16. FORCE MAJEURE. In the event that either party's performance is delayed, prevented, or inhibited because of any Act of God, fire, casualty, delay or disruption in transportation, flood, war, strike, lockout, epidemic, destruction or shut-down of facilities, shortage or curtailment, riot, insurrection, governmental acts or directives, any full or partial failure of any third party communications or computer network or any other cause beyond such party's reasonable control ("Force Majeure"), the party's performance will be excused and the time for the performance will be extended for the period of delay or inability to perform resulting from such occurrence. The occurrence of such an event will not constitute grounds for a declaration of default by either party hereunder; however in the event that such Force Majeure event continues for in excess of thirty (30) days, the party that is not the subject of the Force Majeure event may terminate the Services that are the subject of the Force Majeure event without liability. 17. INSURANCE. Integra shall procure and maintain for the duration of this Agreement, insurance against claims for injuries to persons or damage to property which may arise from or in connection with the performance of the Services and its agents, representatives, employees or subintegras. Integra's maintenance of insurance, its scope of coverage and limits as required herein shall not be construed to limit the liability of Integra to the coverage provided by such insurance, or otherwise limit Customer's recourse to any remedy available at law or in equity. A. Minimum Scope of Insurance. Integra shall obtain insurance of the types and with the limits described below: 1. Commercial General Liability insurance with limits no less than $1,000,000 each occurrence, $2,000,000 general aggregate and $2,000,000 products- completed operations aggregate limit. Commercial General Liability insurance shall be written on ISO occurrence form CG 00 01 or an equivalent form and shall cover liability arising from premises, operations, independent contractors, products-completed operations, stop gap liability, personal injury and advertising injury, and liability assumed under an insured contract. The Commercial General Liability insurance shall be endorsed to provide the Aggregate Per Project Endorsement ISO form CG 25 03 11 85 or an equivalent endorsement. There shall be no endorsement or modification of the Commercial General Liability Insurance for liability arising from explosion, collapse or underground property damage. Customer shall be named as an insured under the Integra's Commercial General Liability insurance policy with respect to the Services performed for Customer using ISO Additional Insured endorsement CG 20 10 10 01 and Additional Insured-Completed Operations endorsement CG 20 37 10 01 or substitute endorsements providing equivalent coverage. Page 6 of 8 v.RMSA3-290611 9 B. Other Insurance Provision. The Integra's Automobile Liability and Commercial General Liability insurance policies are to contain, or be endorsed to contain that they shall be primary insurance with respect to Customer. Any insurance, self-insurance, or insurance pool coverage maintained by Customer shall be excess of the Integra's insurance and shall not contribute with it. C. Acceptability of Insurers. Insurance is to be placed with insurers with a current A.M. Best rating of not less than A:VII. D. Verification of Coverage. Integra shall furnish Customer with original certificates and a copy of the amendatory endorsements, including but not necessarily limited to the additional insured endorsement, evidencing the insurance requirements of the Integra before commencement of the work. E. Subcontractors. The Integra shall have sole responsibility for determining the insurance coverage and limits required, if any,to be obtained by subcontractors,which determination shall be made in accordance with reasonable and prudent business practices. F. Notice of Cancellation. The Integra shall provide Customer and all Additional Insureds for this work with written notice of any policy cancellation, within ten (10) business days of their receipt of such notice. G. Failure to Maintain Insurance. Failure on the part of the Integra to maintain the insurance as required shall constitute a material breach of contract, upon which Customer may, after giving ten business days' notice to the Integra to correct the breach, immediately terminate the contract or, at its discretion, procure or renew such insurance and pay any and all premiums in connection therewith, with any sums so expended to be repaid to Customer on demand, or at the sole discretion of Customer, offset against funds due the Integra from Customer. 1. GENERAL. Except as otherwise permitted herein, any amendment must be in writing and signed by the parties hereto. Electronic or Facsimile copies of this Agreement and any amendments or modification hereto, including electronic or facsimile signatures, will. be accepted by the parties as originals. The failure of either party to insist upon the performance of any provision or to exercise any right granted hereunder, will not be construed as a waiver of such provision(s), and the same will continue in full force. If any provision hereof is held to be invalid, void, or unenforceable or limited in its application or effect, such event shall not affect any other provisions hereof, and the remainder of the provisions will nevertheless remain unimpaired and in effect and remain fully enforceable. All notices to Customer under this Agreement will be in writing and will be made by one or more of the following methods: regular mail, overnight delivery, certified mail, electronic mail, on Customer's invoice, or by facsimile transmission with receipt verification. Notices will be sent to the address of record, and in the event of multiple addresses, to the address of the parent account. In the-case of a notice to Integra, all notices under this Agreement will be in writing and will be made by personal delivery, overnight delivery, or certified mail with a copy to the Legal Department,1201 NE Lloyd Blvd., Suite 500, Portland, OR 97232 FAX NO. 503-453-8223. Delivery will be deemed to occur upon receipt. The various rights and remedies given to or reserved by either party herein or allowed by law, are cumulative, and no delay or omission to exercise any of its rights will be construed as a waiver of any default or acquiescence, nor will any waiver of any breach or any provision be considered to condone any continuing or subsequent breach of the same provision. Customer may not assign its obligations hereunder without the prior written consent of Integra, which will not be unreasonably withheld. This Agreement will be governed by and interpreted in accordance with the laws for the State of Washington. In the event any suit, arbitration, or other proceeding is instituted to enforce any term of this Agreement, the parties specifically understand and agree that venue shall be properly laid in King County,Washington. The prevailing party in any such action shall be entitled to its attorney's fees and costs of suit.Nothing in this Agreement is intended to, or shall be construed, as creating a partnership or any third-parry beneficiaries. The provisions of Sections 2, 4, 5, 6, 7, 9, 10, 11, 12, 13, 14, 15, 16 and this Section 18 shall survive termination. Accepted and Agreed as of the_day of 201_. Page 7 of 8 v.RMSA3-290611 10 CUSTOMER: By: fang' c Name'. Title: ( pv ,�stlGs 17{VC�f�'V� Page 8 of 8 v.RMSA3-290611 11 12 integra monthly charges