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HomeMy WebLinkAboutResolution - 5712 - Agreement - Psinet Inc - Internet Services - 11_20_1997RESOLUTION NO. 5712 Item #22 November 20, 1997 RESOLUTION BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF LUBBOCK: THAT the Mayor of the City of Lubbock BE and is hereby authorized and directed to execute an Agreement and associated documents for and on behalf of the City of Lubbock with PSINe1, Inc. to provide Internet services. Said Agreement is attached hereto and incorporated in this Resolution as if fully set forth herein and shall be included in the minutes of the Council. Passed by the City Council this 20th day of November 1997. S WINDY SUTON, MAYOR APPROVED AS TO CONTENT: Information Services Manager APPROVED AS TO FORM: Linda L. Chamales Supervising Attorney ccdocslpsi.res November 4, 1 "7 RESOLUTION NO. 5712 TThis Agreement (the'Agreemenf) is by and between PSINet Inc. with Its main office at 510 Huntmar Park Drive, Hemdon, VA 20170 ('PSINet); and Customer as specified in the InterFrame Order Form ('Order Form'), which is incorporated herein by reference, for the provision by PSINet or its subcontractors of InterFrame service (the 'Serviced the optional provision by PSINet of certain equipment to facilitate the Service ('Equipment) and the provision by Customer of space to accommodate such Equipment or Customer's equipment ('Equipment Space'), all as set forth In the Service's technical Specifications (the Specifications') which are also incorporated herein by reference. 1. PSINet Network Usage. A. Compliance with Law and Policy. Customer has read and agrees to comply with PSINefs Net -Abuse Policy ('Policy') as currently set forth on PSINefs Web site (httpJ/www.psi.net) and as the Policy may be modified by PSINet in its sole discretion from time to time. Any content, material, message or data made available or transmitted through the Service, wherever it is sent from, viewed, received, or retrieved, that is in violation of (1) an local, state, federal or international law, regulation or treaty, (ii) the Policy; or �i) any community standard or accepted Internet policy is prohibited. Any such violation may be deemed a material breach of this Agreement and PSINet may, in Its sole discretion, disable or terminate the Service with written notice to Customer, but without the cure period specified below. B. Customer -Only Traffic. The right to use the Service Is strictly limited to Customer only and does not extend to any other person, corporation or entity except for wholly -owned affiliates of Customer and those members of Customer's staff and consultants In the course of performing work for Customer. C. Third -Party Traffic. Customer may host world-wide web sites on behalf of third parties. In addition, Customer may feed USENET News to a third party, but may not send any posting from that third party, including, but not limited to, electronic mail, back to PSINet's wide -area network system (the 'Network') or the Internet through the Service. Any other third party traffic, including packet access and electronic mail, whether sent or received through Customer's facilities by or on behalf of a third party through the Service, is expressly prohibited. 2. Customer Equipment and Network To enable the Service, Customer agrees to provide, install, configure and maintain router equipment, software, cabling and DSU/CSU to integrate their host or local area network (LAN( Into the Network (unless PSINet provides Equipment through a Service option ['Option'] as set forth below). Customers equipment must comply with the relevant portions of the Spec'fiications. if Customer wishes to utilize the Emergency Backup Service with the Service, provision and maintenance of the necessary dial -up router, communications device and other equipment at Customers site shall be the sole responsibility of Customer. PSINet provides no user access security with respect to any of Customers facilities or facilities of others. Customer shall be responsible for user/access security as well as access to its network or to the Network PSINet will assist in network security breach detection or identification, but shall not be liable for any inability, failure or mistake in doing so. Service Specifics. A. Network Number and Domain Name. (1) One Network Number. PSINet shall route one (1) network number into the Network as the standard provision of the Service. Any network numbers assigned to Customer by PSINet shall be PSINefs Classless Inter -Domain Routing ('CIDR') network numbers, each one consisting of a 24-bit (Class C-sized) subnet of PSINet's Class A network (38.0.0.0). PSINet CIDR network numbers are and will remain at all times the property of PSINet. If Customer leaves PSINet as its Internet Service Provider (ISP), the PSINet CIDR network numbers used by Customer will be reassigned and reused by PSINet for other PSINet customers. PSINet has sole discretion as to the Internet routing of these network numbers. Additional network numbers may be routed into the Network at an additional one-time fee per network number. (2) One Domain Name. PSINet shall apply for on behalf of Customer and/or route into the Network one (1) registered domain name as the standard provision of the Service. Additional domain names may be routed through the Service at an additional one-time fee per domain name. Customer, not PSINet, is responsible for the ownership, control and use of the domain name upon its registration and at all times thereafter. (3) Additional Orders. Please use PSINefs 'Additional Network Number/Domain Name Order Form' to add network numbers and domain names. Other restrictions may apply as noted in that order forth. B. No PSINet Personnel at Customer Premises. PSINet personnel shall not be present at any time on Customer premises In providing the Service (except with the On -Site Service Option). If Customer requests PSINet personnel to assist them on -site for any reason other than the On -Site Service Option, it shall be according to a mutually agreed upon fee basis. Special Terms for the 'Full Service' and "On -Site Service' Options. A. Equipment Space. Customer shall provide and maintain suitable Equipment Space meeting or exceeding the requirements set forth In the Specifications. B. Equipment. The Equipment Space will house Equipment owned by PSINet required for the Option selected. PSINet shall retain all right, title, and Interest in the Equipment at all times. PSINet will provide Equipment in order to facilitate the connection between Customers network and the Telco circuit leading to the Network. The particular make and model of Equipment shall be selected for Customer by PSINet in its sole discretion. Equipment shall only be made available at no cost to Customer If requested by Customer with the initial Option order. C. Equipment Return. Upon termination of the Service or either Option for any reason, Customer agrees immediately to allow the return of the Equipment to PSINet. PSINet retains all rights to recover possession of the Equippment from Customer. D. 'FullService' Option Specifics. (1) Equipment Maintenance. Customer agrees that neither it nor its agents shall modify, damage, after, fail to maintain, or destroy the Equipment or any portion thereof, and if any such action occurs, any applicable warranties shall be null and void, and Customer shall pay PSINet the full replacement cost of the Equipment; provided, however, that Customer may perform software or firmware upgrades, at Its expense (if any), in accordance with standard procedures of the Equipment manufacturer and in consultation with PSINerfs technical support staff. If PSINet determines that a software or firmware upgrade is necessary to continue acceptable Service, any direct costs imposed by the manufacturer to obtain rights or licenses for the upgrade will be bome by PSINet, and the upgrade shall be performed by Customer's technical personnel in consultation with PSINet's and/or the Equipment manufacturer's technical support staff. (2) Shared Technical Support. Customer shall provide, or contract for, at its expense, the technical personnel necessary to provide on -site configuration (including packet filtering), testing, trouble -shooting, maintenance, and upgrades of the Equipment. PSINet's technical support staff will provide its regular integration services as set forth in the Specifications. If PSINet determines in its sole reasonable judgment that the Equipment Is defective, PSINet shall replace the defective Equipment at no cost to Customer. The foregoing states PSINeVs sole obligation, and Customer's sole remedy, for any defective Equipment. E. 'On -Site Service' Option Specifics. (1) Equipment Access and Connection. The Equipment shall be Installed and maintained by PSINet or its subcontractors as PSINet shall designate in writing. Customer shall provide 24 hour per day, 7 days per week access to the Equipment (with appropriate escort if required by Customer) by PSINet-designated individuals. If Customer cannot provide this access, any Service guarantee Is suspended during such time. Customer shall not allow Its personnel or others on its premises to tamper with the Equipment. PSINet will verbally authorize on an event -by -event basis individuals at Customer's location to open Equipment cabinets for appropriate routine and emergency reasons. Customer shall retain the right to disconnect the Equipment from its, LAN at any time. PSINet reserves the right to shut down the Equipment at Customer's location in accordance with PSINet's emergency operating procedures with notification to Customer. PSINet is not responsible for Service disruptions caused by any Customers Equipment relocation requirements. (2) Security Filtering Sub -Option. If initialed on the Order Forth, PSINet shall provide the Security Filtering Sub -Option along with the On -Site Service Option. PSINet shall provide packet filtering based on network number and protocol for non-Custorier networks, and on an individual host basis for Customer host computers. (a) Customer will delegate two security contacts, a primary and a secondary. Contact names, phone numbers, fax numbers, and electronic mail addresses must be provided to PSINet on the Order Forth. PSINet will take direction ONLY from these contacts. (b) Customer security contacts must participate in an initial phone consultation with PSINet's Security Coordinator. (c) Customer requests must be made by electronic mail or fax to the designated PSINet address to facilitate an audit trail. (d) PSINet Network Operations can be instructed by other Customer contacts to disable non-PSINet access (for instance, MAE-East and CIX access). Service Fees. A. Service Pricing. Please refer to PSINefs current InterFrame Price Sheet together with the Service's Cost Estimate prepared for Customer by PSINet, both of which Customer acknowledges having received and which are incorporated into this Agreement by reference. B. Initial Commitment. Customer commits to PSINet the initial term's Service Fees upon execution of this Agreement. The initial term's Service Fees include the following: (1) estimated initial Telco circuit installation fee; (ii) PSINet Service setup fee ; (III) all of the initial term's estimated Telco circuit monthly lease fees; (iv) all of the initial term's PSINet Service fees (including any options selected by Customer on the Order Forth); and (v) fees for any additional equipment and/or software ordered. Except for termination due to the default of PSINet as provided below, all fees for the Service's Initial term, whether paid or payable, are non-refundable. They are independent of the amount of traffic or system access by Customers legitimate users. if Customer commits to an extended term of Service by initialing the appropriate section on the Order Forth, the listed discounts will apply to the PSINet monthly Service fees, but not the one-time PSINet setup fee or Telco circuit installation and lease costs. C. Authority to Commit Funds. (1) Purchase Orders. Customer may submit a purchase order ('PO') for the initial term costs or indicate the purchase order number prominently in the space provided on the Order Form. (2) No PO Required. If Customer Indicates that no purchase order is required on the Order Forth, Customer thereby authorizes PSINet to bill for the Service's initial term commitment as set forth herein and such payment requisites shall be binding upon Customer. 6. Ordering and Billing Process. A. Service Order Date. The 'Service Order Date' refers to the date PSINet receives and processes Customers complete order, including this executed InterFrame Order Form - US-611197 Page 4 of 5 Agreement and the completed Order Form, which results in activity by PSINet such as consultation, training and Telco circuit ordering. B. Anniversary Date. MStandard. The Anniversary Date' shall be three (3) business days r the day in which the Telco circuit between Customer's site and the Networks point -of -presence (POP) used for the Service is turned up (completed and activated by theTelco) and Customer is notified of such avallability by PSINet. (2) With Options. With the On -Site Service or Full Service Options, the Service's Anniversary Date' shell be the day In which packets of data can be sent to the Equipment at Customer's site, or three (3) business days after the Telco circuit between Customer's site and the Networks point -of - presence (POP) and the Equipment used for the Service have been made available to Customer and Customer Is notified of such availability by PSINet, whichever occurs first. C. Billing (1) First Invoice. The first invoice will be generated shortly after the Service Order Date and Is payable by Customer prior to the initial Anniversary Date of the Service. it Will include: (1) estimated initial Telco circuit installation fee • Qi) PSINet Service setup fee; and (III) any additional equipment and/or software costs. Delivery of the Telco circuit used to provide Service to Customer's site will not be accepted from the Telco by PSINet until this first invoice is paid in full. g2) Monthly Invoices. Monthly invoices Will be for the specified month of ervice and are payable upon the invoice due date. They will include that month's PSINet Service fees (including any options selected by Customer on the Order Form) and the estimated or actual Telco circuit monthly lease fee. (3) "Pass Through" Fees. Based on the actual Telco circuit installation and monthly lease fees billed to PSINet by the Telco, PSINet will pass - through any additional fees to Customer in the invoice following receipt of such Telco s invoice. (4) Late Payments. Invoices not paid by their due date shall be subject to a 1.5% per month Interest fee, or the maximum extent allowed by applicable laws, whichever Is less, on all past -due balances. In the event PSINet incurs additional fees as a result of any collection activity, such as collection agencies or legal fees, Customer shall reimburse PSINet for all such fees. D. Upgrades for Sub -rate of T11. An upgrade of an existing Service at a sub - rate of T1 to a higher sub -rate of Tt (or full T1) shall incur the additional monthly Service fees seven (7) days after the upgrade's Service Order Date, but this upgrade shall not incur any PSINet Service setup fee. The Service's new Anniversary Date shall then become effective. Upgrades shall cause this Agreement to automatically renew for a new successive term (as defined below) from the new Anniversary Date. E. Changes. PSINet reserves the right to change the billing intervals upon written notice to Customer. Term/Extension/Termination. A Initial Non -Cancelable Term. This Agreement shall extend from the date OPERATES N CONFORMANCE WITH THE SPECFICATKBNS. ANY UNAUTHORRED CHANGES TO OR INAPPROPRIATE USAGE OF THE EQUIPMENT, HOWEVER, WILL VOID THE FOREGOING WARRANTY. PSINET DOES NOT WARRANT THAT THE EQUKIPMENT WILL BE ENTIRELY FREE FROM DEFECTS OR THAT ITS OPERATION WILL BE ERROR FREE. FURTHERMORE, CUSTOMER ACKNOWLEDGES THAT PSINET HAS MADE NO OTHER REPRESENTATION OR WARRANTY OF ANY KIND, EXPRESS OR IMPLIED, WITH RESPECT TO THE CONDMN OR PERFORMANCE OF THE EQUIPMENT, OR ITS MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. 9. Limitation of Liability. EXCEPT FOR CUSTOMER'S PAYMENT OBLIGATKNNS HEREUNDER, NEITHER PARTY SHALL BE LIABLE FOR DIRECT DAMAGES GREATER THAN THE SLIM TOTAL OF PAYMENTS MADE BY CUSTOMER TO PSINET DURING THE Six (B) MONTHS RAMEDIATELY PRECEDING THE EVENT FOR WHICH DAMAGES ARE CHIMED. PSINET SHALL NOT BE LIABLE FOR ANY DIRECT OR INDIRECT LOSSES OR DAMAGES RESULTING FROM THE DELIVERY, INSTALLATION, MAINTENANCE, OPERATION OR USE OF THE SERVICE OR THE EQUIPMENT; ANY ACT OR OMISSION OF ANY OTHER ENTRY FURNISHING EQUIPMENT, PRODUCTS OR SERVICES TO CUSTOMER; AND ANY PERSONAL OR PROPERTY DAMAGES DUE TO THE LOSS OF STORED, TRANSMITTED OR RECORDED DATA RESULTING FROM THE SERVK:E OR THE EQUIPMENT, EVEN F PSINET HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. N NO EVENT SHALL EITHER PARTY BE LIABLE FOR ANY INDIRECT, NCIDENTAL, EXEMPLARY, PUNITIVE OR OTHER CONSEQUENTIAL DAMAGES WHETHER OR NOT FORESEEABLE, INCLUDING, BUT NOT LIMITED TO, DAMAGES FOR THE LOSS OF DATA, GOODWILL OR PROFITS, ARISING OUT OF OR IN RELATION TO THIS AGREEMENT EVEN IF ADVISED BEFOREHAND OF THE POSSIBILITY OF SUCH LIABILITY. THE PARTIES AGREE TO WORK N GOOD FAITH TO IMPLEMENT THE PURPOSES OF THIS AGREEMENT, BUT RECOGNIZE THAT THE SERVICE COULD NOT BE MADE AVAILABLE UNDER THESE TERMS OR OTHER SIMILAR TERMS WITHOUT A SUBSTANTIAL INCREASE N COST IF PSINET WERE TO ASSUME A GREATER DEGREE OF LIABILITY TO CUSTOMER. 10. General Terms. Neither party may Sell, transfer, or assign this Agreement, except to entities completely controlling or controlled by that party, or to entities acquiring all or substantially all of its assets, without the prior written consent of the other, which consent shall not be unreasonably withheld. Any act in derogation of the foregoing shall be null and void; provided, however, that any such assignment shall not relieve thei assigning party of its obligations hereunder. PSINet shall require written notice in the event of any assignment by Customer, The waiver or failure of either party to exercise In any respect any right provided for in this Agreement shall not be deemed a waiver of any further right under this Agreement. Many provision of this Agreement is held by a court of competent jurisdiction to be contrary to law, the remaining provisions of this Agreement will remain in full force and effect. This Agreement represents the complete agreement and understanding of the parties with respect to the subject matter herein, and supersedes any other agreement or understanding, written or oral. In the event of any conflict arising between Customer's purchase order terms and this Agreement, this Agreement shall take precedence. This Agreement may be modified only in writing signed by both parties. Customer agrees to the non-exclusive jurisdiction of the federal and state courts of the Commonwealth of Virginia for any action or proceeding arising out of or in relation to this Agreement. This Agreement shall be governed by the substantive law of the Commonwealth of Virginia. first written below until the end of the initial non -cancelable term set forth on the Order Form which begins on the initial Anniversary Date. EACH PARTY ACIOVOWLEDGES THAT IT HAS READ AND UNDERSTANDS THIS B. Extension. Unless terminated by either party as provided herein, this AGREEMENT AND AGREES TU BE BOUND BY iTS TERMS. EACH PARTY FURTHER Agreement shall automatically renew for successive terns of the same WARRANTS THAT?HAS FULL CORPORATE POWER AND AUTHORITY To ENTER INTO AND duration as the initial term, but in no event greater than one (1) year, and DELNERTHISAGREEMENTANDTUPERFORmnvosLIGATTONSHEREUNDER,AND TNAT Customer shall be invoiced for any subsequent months of Service as set forth THE PERSON WHOSE SIGNATURE APPEARS BELOWIS DULYAUTHORRED TU ENTER wM above. Service rendered beyond each term will be subject to continued THISAGREEMENTONBEHALFOFTNATPARTy. relevant fees and monthly payments. Relevant fees refers to the price of the Service at the date of renewal, including the actual local Telco circuit costs IN WnIIvESS WHEREOF, THE PARTIES HAVE ENTERED INTO THIS AGRE UEHT AS OF which may change from time to time due to tariffs and other reasons. Service THE DATE SET FORTH: rendered refers to either packet access to PSINet or continuing availability of the Telco circuit to Customer's premises if termination, as specified below, Is W dy Siton, May not in effect. C. Termination. epresentati a (plea type or print) (1)For Non-PaymerrL After thirty (30) days of non-payment from e INet invoice due date, Service may be disabled by PSINet (end en AAuthocuStome subject to a reconnection fee) and/or this Agreement tediscretion of PSINet. Disablement of the Service or termination of Ihis gnature Date, Agreement for non-payment does not remove Customer's responsibilities under this Agreement, including the responsibility to pay all fees up to the date of disablement or termination as well as payment for the remainder of c , .T-F��-� O (1 J the Service's initial tern. J c� h� lid (2) For Default Either party may terminate the Service for default by the Autho PSI Repre five ase type or print) other party for material breach of the Agreement should such breach not be cured Within thirty (30) days of written notice clearly specifying the breach to the other pa Either (3) End of Term. party may terminate this Agreement for any SI epresentative Sig na u Date reason upon thirty (30) days written notice before the end of either the initial or any subsequent terms. Exhibit A: Service Documents Limited Warranties. A Service. PSINET WARRANTS THAT THE SERVICE WILL OPERATE SUBSTANTIALLY N CONFORMANCE WITH THE SPECIFICATIONS. PSINET MAKES NO OTHER WARRANTIES OF ANY KND, WHETHER EXPRESSED, IMPLIED OR STATUTORY, NCLUDNG, BUT NOT LIMITED TO, ANY IMPLIED WARRANTY OF MERCHANTABILnY, FITNESS OF THE SERVICE FOR A PARTICULAR PURPOSE AND NON -INFRINGEMENT OF ANY THIRD PARTY RIGHTS. CUSTOMER iS RESPONSIBLE FOR ASSESSING ITS OWN COMPUTER AND TRANSMISSION NETWORK NEEDS, AND THE RESULTS TO BE OBTAINED THEREFROM. USE OF ANY INFORMATION OBTAINED THROUGH THE SERVICE IS AT CUSTOMER'S RISK. PSINET SPECIFICALLY DENIES ANY RESPONSIBILITY FOR THE ACCURACY OR QUALITY OF INFORMATION OBTAINED THROUGH THE SERVICE. B. EQuipmerrL PSINET REPRESENTS AND WARRANTS THAT DURING THE TERM OF THIS AGREEMENT IT WILL MAKE REASONABLE EFFORTS TO ENSURE THE EQUIPMENT InterFrame Cost Estimate InterFrame Service Brochure InterFrame Service Specifications InterFrame Order Form InterFrame Price List PSlef PSINet Inc., 510 Huntmar Park Drive, Hemdon, Virginia 20170 htti)://www.Dsi.net - Wei Order Form - US-8/1197 APPROVED AS TO FORM: -Emy .i Ass taut City Attorney ATTEST: Ka f�t hie Darnell City Secretary 9 J � RESOLUITON NO. 5712 ADDENDUM TO INTER -FRAME AGREEMENT This Addendum (the "Addendum") is a modification of the Interframe Agreement (Interframe Order Form-US-8/l/97) between PSINet Inc. with its main office at 510 Huntmar Park Drive, Herndon, VA 20170 ("PSINet") and the City of Lubbock, Texas ("Customer") for the provision of Internet Service to the City of Lubbock. Both the Interframe Agreement and this Addendum will be signed on the same date. PSINet and Customer agree to the following modifications of the Interframe Agreement: 1. Paragraph I.B. "Customer -Only Traffic" is amended to read as follows: "B. Customer -Only Traffic. The right to use the Service is limited to Customer and those agencies which receive maintenance support from the Customer and those members of Customer's staff and consultants in the course of performing work for Customer. This includes any public -access use from Customer owned and/or maintained equipment." 2. Paragraph 2, "Customer Equipment and Network." is amended to read as follows: "2. Customer Equipment and Network. To enable the Service, Customer agrees to provide, install, configure and maintain router equipment, software, cabling and DSU/CSU to integrate their host or local area network (LAN) into the Network. Customer's equipment must comply with the relevant portions of the Specifications as amended in the two page RFP Response dated July 15, 1997, a copy of which is attached as `Exhibit F and incorporated herein as if fully set forth. PSINet provides no user access security with respect to any of Customer's facilities or facilities of others. Customer shall be responsible for user/access security as well as access to its network or to the Network. PSINet will assist in network security breach detection or identification, but shall not be liable for any inability, failure or mistake in doing so." 3. Paragraph 5, "Service Fees." is amended to read as follows: "5. Service Fees. A. Service Pricing. The PSINet costs are outlined in Exhibit 1, the RFP response, which has been incorporated into this agreement. Any conflict between the Interframe Agreement and Exhibit 1 shall be resolved in favor of Exhibit 1. B. Initial Commitment. Customer commits to PSINet the costs as outlined in Exhibit 1 and agrees to pay the initial setup fees for the InterFrame 1.54 Mb CIR of $995.00, the circuit installation fee of $314.00, and $1095.00 for the purchase of an Astrocom NX-1 CSU/DSU from Astrocom Corporation, as outlined in Exhibit 1 upon signing of the contract. Except for termination due to the InterFrame Addendum 1 default of PSINet as provided below, all fees for the Service's initial term, whether paid or payable, are non-refundable." 4. Paragraph 6.A. "Service Order Date." is amended to read as follows: "6. A. Service Order Date. The `Service Order Date' refers to the date of the executed contract." 5. Paragraph 73. "Extension." is amended to read as follows: "7. B. Extension. Unless terminated by either party as provided herein, this Agreement shall automatically renew for successive one year terms, but in no event be renewed more than five (5) times, and Customer shall be. invoiced for any subsequent terms of Service as set forth above. Service rendered beyond each term will be subject to continued relevant fees and monthly payments. Relevant fees refers to the price of the Service at the date of renewal, including the actual local Telco circuit costs, which may change from time to time due to tariffs and other reasons. Service rendered refers to either packet access to PSINet or continuing availability of the Telco circuit to Customer's premises if termination, as specified below, is not in effect." 6. Paragraph 8.A. "Service" is amended to read as follows: 668. A. Service. PSINET WARRANTS THAT TIME SERVICE WILL OPERATE SUBSTANTIALLY IN CONFORMANCE WITH THE SPECIFICATIONS AND IN CONFORMANCE WITH THE RFP RESPONSE (EXHIBIT 1). ACCORDINGLY, PSINET REPRESENTS AND WARRANTS THAT THE SERVICE WILL ALLOW CUSTOMER SECONDARY DOMAIN NAME SERVICE 100% OF THE TAM (7 x 24 x 365) AS WELL AS 100% T-1 BANDWIDTH AVAILABILITY BETWEEN CUSTOMER'S PROMISES AND THE PSINET POP . PSINET MAKES NO OTHER WARRANTIES OF ANY KIND, WHETHER EXPRESSED, IMPLIED OR STATUTORY INCLUDING, BUT NOT LIMITED TO, ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS OF THE SERVICE FOR A PARTICULAR PURPOSE AND NON -INFRINGEMENT OF ANY THIRD PARTY RIGHTS. CUSTOMER IS RESPONSIBLE FOR ASSESSING ITS OWN COMPUTER AND TRANSMISSION NETWORK NEEDS, AND THE RESULTS TO BE OBTAINED THEREFROM. USE OF ANY INFORMATION OBTAINED THROUGH THE SERVICE IS AT CUSTOMER'S RISK. PSINET SPECIFICALLY DENIES ANY RESPONSIBILITY FOR THE ACCURACY OR QUALITY OF INFORMATION OBTAINED THROUGH THE SERVICE." 7. Paragraph 10, "General Terms." is amended to read as follows: "10. General Terms. Neither party may sell, transfer, or assign this Agreement, except to entities completely controlling or controlled by that party, or to entities acquiring all or substantially all of its assets, without the prior written consent of the other, which consent shall not be unreasonably withheld. Any act in derogation of the foregoing shall be null and void; provided, however, that any InterFrame Addendum 2 such assignment shall not relieve the assigning party of its obligations hereunder. PSINet shall require written notice in the event of any assignment by Customer. The waiver of failure of either party to exercise in any respect any right provided for in this Agreement shall not be deemed a waiver of any further right under this Agreement. If any provision of this Agreement is held by a court of competent jurisdiction to be contrary to law, the remaining provisions of this Agreement will remain in full force and effect. This Agreement with the Addendum of the same date represents the complete agreement and understanding of the parties with respect to the subject matter herein, and supersedes any other agreement or understanding, written or oral. In the event of any conflict arising between the RFP Response (Exhibit 1) terms and this Agreement, the RFP Response (Exhibit 1) shall take precedence. This Agreement may be modified only in writing signed by both parties. Customer and PSINet agree to the non-exclusive jurisdiction of the federal and state courts of the state of Texas for any action or proceeding arising out of or in relation to this Agreement. This Agreement shall be governed by the substantive law of the State of Texas." EACH PARTY ACKNOWLEDGES THAT IT HAS READ AND UNDERSTANDS THIS ADDENDUM AND AGREES TO BE BOUND BY ITS TERMS. EACH PARTY FURTHER WARRANTS THAT rr HAS FULL CORPORATE POWER AND AUTHORITY TO ENTER INTO AND DELIVER THIS ADDENDUM AND TO PERFORM ITS OBLIGATIONS HEREUNDER, AND THAT THE PERSON WHOSE SIGNATURE APPEARS BELOW IS DULY AUTHORIZED TO ENTER INTO THIS ADDENDUM ON BEHALF OF THAT PARTY. S D OF November ,1997. WINDY SITTW, MkYbR PSINet Vpresentative Signature Printed name: Windy Sitton AM Date: X J hwkl�. Kayt Darnell, City Secretary APPROVED AS TO CONTENT: Sharlett Chowning, APPROVED AS TO FORM: Linda L. Chamales, Supervising Attorney InterFrame Addendum 3