HomeMy WebLinkAbout09.04.2024 Telecom Board Agenda - Special Session
BOARD
MEMBERS
Andrew
Van Fleet
Board Chair
Theodore
Batemon
Ritch
Kurtenbach
Mike
Young
Amy
Wienands
City Council
Liaison:
Rob
Nichols
September 4, 2024
City Clerk’s Office
Waterloo City Hall, 1st Floor
12:00 p.m.
1. Roll call.
2. Approval of the agenda, as presented.
3. Approval of minutes of August 21, 2024, Regular Session, as presented.
4. Public Hearing on Setting Rates.
4.1. Motion to open the public hearing and receive and file notice of hearing.
4.2. Motion to close the public hearing.
4.3. Resolution approving the adoption of additional rates.
5. Resolution approving hiring Tobin Orcutt to the position of NOC Technician at a rate
of $26.00 per hour plus benefits, effective September 16, 2024, conditioned on passing
a background check.
6. Resolution approving hiring Trey Corkery to the position of NOC Technician, at a rate
of $22.00 per hour plus benefits, effective September 16, 2024, conditioned on passing
a background check.
7. Motion approving a Master Services Agreement with NeoNova Network Services, LLC,
dba NRTC Managed Services and authorizing the General Manager of
Telecommunications to execute said document.
8. General update from the General Manager of Telecommunications and consultants.
9. Adjourn.
Kelley Felchle
Board Secretary
WATERLOO
Telecommunications Utility Board of Trustees
TELECOMMUNICATIONS UTILITY
BOARD OF TRUSTEES
City Council Chambers
August 21, 2024
4:00 p.m.
1. Members present: Van Fleet, Batemon and Mr. Kurtenbach. Mr. Young joined the
meeting at 4:35 p.m. Ms. Wienands was absent.
2. Moved by Kurtenbach seconded by Batemon that the agenda, as presented, be
approved. Voice vote-Ayes: Three. Motion carried.
3. Moved by Kurtenbach seconded by Batemon that the minutes of June 25, 2024, and
July 24, 2024, Regular Session, as presented, be approved. Voice vote-Ayes:
Three. Motion carried.
4. Moved by Kurtenbach seconded by Batemon to adopt a resolution approving the
payment of bills. Roll Call vote- Ayes: Three. Motion carried. Resolution No. 2024-
002.
5. Confidential information policy training.
Tim Whipple, Ahlers and Cooney, provided background on confidentiality concerns
specific to a city telecommunication utility and covered open meetings law, trade
secrets, confidential records, records requests, and protection of exchanged
information. He commented on the importance of designating a records officer and
communications officer.
The board discussed training points with Mr. Whipple.
6. Moved by Young seconded by Kurtenbach to adopt a resolution approving the
Waterloo Fiber Employee Handbook. Roll Call vote-Ayes: Four. Motion carried.
Resolution No. 2024-003.
Mr. Kurtenbach questioned the amount of vacation hours that can be carried over,
and if sick leave accrual is pro-rated for those who have been employed under a
year.
Eric Lage, General Manager, explained that a maximum of twenty-four hours of
vacation time may be carried over to the following calendar year, and confirmed that
sick leave accrual is pro-rated.
Mr. Van Fleet commented on missing language for items requiring board approval.
Kelley Felchle, Board Secretary, confirmed the additional language would be added.
7. Moved by Young seconded by Kurtenbach to adopt a resolution setting date of
public hearing as September 4, 2024 at Noon via Zoom, to approve utility rates. Roll
Call vote-Ayes: Four. Motion carried. Resolution No. 2024-004.
8. Moved by Kurtenbach seconded by Young to adopt a resolution approving a Real
Estate Purchase Agreement with Anthony L. Bradfield for parcels 8912-19-258-001,
-002, and -004, situated on Idaho Street, in the amount of $30,000.00. Roll Call vote-
Ayes: Four. Motion carried. Resolution No. 2024-005.
Eric Lage, General Manager, explained the purpose of the real estate purchase.
9. Moved by Kurtenbach seconded by Young to approve a Tax Rating Service
Agreement with Compliance Solutions Inc., for tax compliance in billing software.
Voice vote-Ayes: Four. Motion carried.
Eric Lage, General Manager, provided an overview of the agreement.
Page 2
10. Moved by Young seconded by Kurtenbach to approve a Redundant Internet
Agreement with South Front Network. Voice vote -Ayes: Four. Motion carried.
Eric Lage, General Manager, provided an overview of items 10 through 12.
11. Moved by Young seconded by Kurtenbach to approve a Redundant Internet
Agreement with Hurricane Electric. Voice vote-Ayes: Four. Motion carried.
12. Moved by Kurtenbach seconded by Young to approve a Redundant Internet
Agreement with UPN. Voice vote-Ayes: Four. Motion carried.
Eric Lage, General Manager, commented that he approached UPN for a potential
discount, and they have offered to provide the first three months free if we signed a
3-year agreement, or five months free with a 5-year agreement. He stated that he
believes the 3-year term would be the best choice based on our future needs.
13. Moved by Young seconded by Kurtenbach to approve a Right-of-Way Agreement
with the City of Waterloo. Voice vote-Ayes: Four. Motion carried.
Mr. Van Fleet provided a recap of the concerns he shared at the previous meeting
and his request for legal review. Tim Whipple reviewed the agreement and did not
have any significant concerns but did provide additional perspective which was
beneficial to read through. He commented that he no longer has any concerns with
the agreement.
14. General update from the General Manager of Telecommunications and consultants.
Eric Lage, General Manager, provided a construction update and commented that
he is working with Magellan on an as-built proposal as well as some additional
design changes for areas of the city that were not in the original design. He shared
that they went live last Tuesday and Thursday and began signing up customers
noting that he anticipates the installs will begin the first part of October. Interviewing
continues to fill the Product and Services Manager as well as the Help Desk
Technician position.
Maggie Burger, Speer Financial, commented that they are working on getting
additional working capital debt with a timeline of September or October. She further
provided an overview of how a potential drop in interest rates might affect the utility.
Mike Regan, Entrust, commented that they are targeting bid issuance for the second
shelter, next month.
Kelley Felchle, Board Secretary, commented that we would like to set up a working
session with the board sometime in September or October to talk about the board’s
goals and high-level vision for the organization. Work on the new budget will begin
soon and Eric will be working on performance evaluations with staff in the fall. This
information can be used to work on ways to drill that vision down into the
organization.
15. Adjourn.
With no further business before the board, it was moved by Kurtenbach seconded by
Young that the meeting be adjourned at 5:15 p.m. Voice vote-Ayes: Four. Motion carried.
Kelley Felchle
Board Secretary
Description Rate Freq
Public IP Address 9.95$ Monthly
Mesh Unit 9.95$ Monthly
Voice Power Supply 9.95$ Monthly
Non-Returned Gateway 250.00$ Per occurrence
Non-Returned Mesh Unit 200.00$ Per occurrence
NSF Fee 35.00$ Per occurrence
Late Fee 25.00$ Per occurrence
New Rates 07/17/2024
NeoNova Network Services, LLC , dba NRTC Managed Services
MASTER SERVICES AGREEMENT
Version: 1.0
NRTC Managed Services
(877) 636-6682
https://www.nrtc.coop/solutions/managed -services
NRTC Managed Services
Confidential and Proprietary
Waterloo Fiber
1
This M ASTER SERVICES AGREEMENT (this “Agreement ”), dated as of August 29, 2024 (the “Effective Date”), is by and
between NeoNova Network Services, LLC, dba NRTC Managed Services a Delaware limited liability company with
offices at 1201 Edwards Mill Road, Suite 102, Raleigh, NC 27607 (“NRTC MS ”), and Waterloo Telecommunications
Utility dba Waterloo Fiber an Iowa company with offices at 625 Glenwood St., Waterloo, IA 50703 (“Affiliate ”) (each
a “Party” and collectively the “Parties”). For and in consideration of the mutual promises contained herein and other
good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Parties agree
as follows:
1. Master Agreement. This Agreement is a master
agreement. From time to time during the term of this Agreement,
NRTC MS and Affiliate may execute Service Orders under this
Agreement. Each Service Order (including all terms and
conditions set forth therein) shall become part of, and be subject
to all terms of, this Agreement. NRTC MS will not be obligated
to provide any Services until the execution of an agreed Service
Order under this Agreement.
2. Services
a. Subject to the terms of this Agreement, NRTC MS shall
provide the Services described in agreed Service Orders
throughout the applicable Service Order Term (except during
Excused Outages). The Services are provided to Affiliate solely
for the benefit of Affiliate, and Affiliate agrees not to resell or
otherwise provide the Services to others (other than its
Subscribers) on a service bureau basis .
b. NRTC MS shall notify Affiliate (which notice may be by e-
mail) when a Service is ready for Affiliate’s use. Affiliate may
conduct any reasonable tests of such Service for three (3)
business days after receipt of NRTC MS’s notice to confirm that
the Service is functioning properly. Unless Affiliate provides
written notice to NRTC MS within such time period that the
Service is not functioning properly, Affiliate shall be deemed to
have accepted the Service and the term of the Service Order
will begin on the date that NRTC MS provided notice to Affiliate
that the Service was ready (the “Activation Date ”). In the event
that Affiliate notifies NRTC MS within the time period stated
above that the Service is not functioning properly and provides
supporting details , then NRTC MS shall correct any
deficiencies and deliver a new Service activation notice to
Affiliate. The procedure described in this paragraph shall be
repeated until Affiliate accepts such Service.
c. Affiliate shall provide NRTC MS with all reasonably
requested information, documentation, assistance, and/or
access to Affiliate resources , in a form reasonably specified by
NRTC MS and by the dates specified, so that NRTC MS can
implement and provide the Services . This assistance may
include providing Subscriber and other user information needed
to better support users and to process invoices. If there are
errors in supplied information or documentation, and such errors
materially affect NRTC MS performance hereunder, then any
associated costs shall be the responsibility of Affiliate, provided
NRTC MS has notified Affiliate before any additional costs are
incurred.
d. Affiliate acknowledges that NRTC MS may from time to
time reasonably modify a Service and add, change, or delete
features of a Service, so long as the core functionality of the
Service remains in place. NRTC MS will use commercially
reasonable efforts to notify Affiliate in advance of any material
changes to a Service.
e. Services may also be added to this Agreement by means
of Affiliate’s selection of Services through an applications portal
or similar electronic means made available by NRTC MS (“App
Portal ”). The Services term, fees, and additional terms
associated with new Services added by Affiliate through an App
Portal shall be deemed a Service Order for the purpose of this
Agreement. Except to the extent modified by the additional
terms associated with such Services, the terms of this
Agreement shall apply to all Ser vices added by Affiliate through
any App Portal.
3. Term and Renewals
a. The term of this Agreement shall commence as of the
Effective Date and shall remain in place until terminated as set
forth herein.
b. Each Service Order will have its own term, which will begin
on the Activation Date and will continue for the term specified in
such Service Order (“Service Order Term”). The Service Order
Term shall automatically extend for one additional one (1) year
extension period, unless a Party has delivered to the other Party
written notice to the contrary at least one-hundred twenty (120)
days prior to the end of the initial Service Order Term.
c. In the event Affiliate desires to receive any or all Services
on a “month-to-month” basis after termination or cancellation of
any Service Order, and if NRTC MS agrees in writing to provide
such Services on such basis, then the Service Order shall be
deemed to continue in force, provided that a ten percent (10%)
increase will be applied to all monthly recurring charges under
such Service Order until a new Service Order is fully executed.
4. Fees and Payment Terms
a. Affiliate shall pay NRTC MS the fees for Services as set
forth in the Service Orders. Charges for additional services
required for implementation or use of such Services (beyond the
scope of implementation or use as defined in the Service Order)
shall be at NRTC MS’s then-current charges. Billing to Affiliate
for recurring Service charges will begin on the Service Activation
Date and will continue on a monthly basis . All other charges for
Services or additional Services may be billed at times
designated by NRTC MS. Billing for partial months is prorated
based on a calendar month.
b. Affiliate shall pay all amounts set forth on an invoice within
thirty (30) days after the date of invoice. Past due amounts bear
interest at a rate of 1.5% per month (or the highest rate allowed
by law, whichever is less) beginning from the date first due until
paid in full. Affiliate will provide NRTC MS with credit information
regarding Affiliate as requested.
c. In the event either Party believes there is an error in any
billing under this Agreement or needs additional information to
verify billing, it shall have the right, upon reasonable notice, and
subject to the confidentiality terms herein, to review the records
of the other Party as they relate to Services. Any billing dispute
must be declared within sixty (60) days of the original invoice
date to be considered valid.
d. Affiliate shall at NRTC MS’s direction promptly reimburse
NRTC MS or pay directly to the applicable taxing authority all
applicable taxes, fees, duties, charges, or regulatory surcharges
that arise in any jurisdiction on the provision, sale or use of any
Service, Software and/or Equipment, and permitted by
applicable law to be passed through to Affiliate, including,
without limitation, value added, consumption, sales, use, gross
receipts, excise, access, bypass, franchise and other taxes or
federal or state universal service charges, except for taxes
NRTC Managed Services
(877) 636-6682
https://www.nrtc.coop/solutions/managed -services
NRTC Managed Services
Confidential and Proprietary
Waterloo Fiber
2
based on NRTC MS’s net income and taxes assessed on NRTC
MS’s property (collectively, “Applicable Taxes ”), and any
penalties and interest related to such Applicable Taxes . If
Affiliate is exempt from any Applicable Taxes, Affiliate shall
provide NRTC MS within fifteen (15) days after the Effective
Date, an appropriate exemption certificate related to such
Applicable Tax. NRTC MS will give prospective effect to any
valid exemption certificate to the extent that it applies to any
Service and shall cooperate at Affiliate’s sole expense in
pursuing any claim for refund of Applicable Taxes paid by
Affiliate.
5. Affiliate Premises; NRTC MS Equipment
a. Affiliate shall allow NRTC MS access to the Affiliate
Premises to the extent reasonably necessary for the provision
of Services and for the installation, inspection and maintenance
of NRTC MS Equipment. NRTC MS shall notify Affiliate at least
two (2) business days in advance of any regularly scheduled
maintenance of NRTC MS Equipment that will require access to
the Affiliate Premises. Affiliate will ensure that the Affiliate
Premises are secure and safe from hazards to NRTC MS
Equipment and to NRTC MS’s personnel. NRTC MS shall
comply with Affiliate’s reasonable site and security regulations
that are communicated to NRTC MS in advance.
b. Affiliate shall provide at its own expense power,
heating/cooling, dust control, security, and other environmental
considerations as necessary to meet all applicable
environmental requirements, including but not limited to the
environmental considerations defined by the applicable
manufacturer(s) of NRTC MS Equipment. NRTC MS shall not
be responsible for any malfunction attributable to Affiliate’s
nonconformity with environmental specifications. If installation
or operation of any NRTC MS Equipment at the Affiliate
Premises requires construction of additional facilities, or
modifications to existing facilities, Affiliate shall be responsible
for such costs.
c. Affiliate agrees that it shall use NRTC MS Equipment
located on Affiliate’s Premises or otherwise provided to Affiliate
solely as specified in the pertinent documentation and for the
purpose of receiving the Services. Affiliate further agrees that it
shall have no right, title, or interest to the NRTC MS Equipment,
and shall not allow or cause any lien or encumbrance to be
placed on the NRTC MS Equipment. Affiliate shall at all times
treat the NRTC MS Equipment as a bailee, and return such
NRTC MS Equipment to NRTC MS when required hereunder, in
the same condition as it was when first delivered to Affiliate by
NRTC MS, less reasonable wear and tear.
d. NRTC MS will provide and maintain the NRTC MS
Equipment located on Affiliate’s Premises in good working
order. Affiliate shall not, and shall not permit others to, without
the prior written consent of NRTC MS, rearrange, disconnect,
move, copy, remove, attempt to repair, or otherwise tamper with
any NRTC MS Equipment, In no event will NRTC MS be liable
to Affiliate or any other person for interruption of Services or for
any other loss, cost or damage caused or related to improper
use or maintenance of the NRTC MS Equipment by Affiliate or
third parties provided access to the NRTC MS Equipment by
Affiliate.
e. NRTC MS will be responsible for the delivery, configuration,
testing, and commissioning of NRTC MS Equipment designated
for use in the Affiliate’s Premises. The term “commissioning”
means placing the NRTC MS Equipment in working condition
with active connectivity to NRTC MS’s network(s)/data center(s)
(if applicable) and the Internet (if applicable), in conformance
with the specifications set forth or referenced in an applicable
Service Order.
f. If Affiliate elects not to renew the term of a Service Order it
shall notify NRTC MS in writing no less than one-hundred twenty
(120) days prior to termination to arrange for removal of NRTC
MS Equipment from the Affiliate’s Premises at the end of the
term. Such removal by NRTC MS shall be at no additional
charge; provided, however, reasonable shipping charges
related to returning such NRTC MS Equipment to NRTC MS
shall be paid by Affiliate.
g. In the event that returned NRTC MS Equipment is damaged
beyond reasonable wear and tear, Affiliate shall within thirty (30)
days after NRTC MS’s request either repair the equipment to full
working condition or replace the equipment at Affiliate’s
expense.
6. Intellectual Property; Confidentiality
a. Neither Party shall use any trademarks, service marks,
logos, or trade names (the “Marks ”) of the other Party, and
Affiliate shall not use any Marks of any supplier or subcontractor
to NRTC MS, in any manner whatsoever, including without
limitation in any advertising, marketing materials, website
content, or brochures, other than as set forth in Section 16
below, without the other Party’s prior written consent. Each Party
agrees that it shall only use any Marks of the other Party in strict
compliance with the other Party’s instructions.
b. In conjunction with providing the Services to Affiliate, NRTC
MS may deliver or make available certain software to Affiliate
(“Software”), including software owned by NRTC MS (“NRTC
MS Software ”) and software owned by third parties (“Third Party
Software ”). Where Third Party Software is made available
directly to Affiliate or its Subscribers (for example, via a “click-
wrap” agreement contained in the Third Party Software), Affiliate
or its Subscribers will agree to the terms of such license to use
such Thi rd Party Software and, in the event of a conflict between
Affiliate’s obligations hereunder and Affiliate’s obligations under
such Third Party Software license, the terms of the Third Party
Software license will control, but only with respect to such Third
Party Software.
c. Upon Affiliate's payment to NRTC MS of the fees for the
Software and/or the related Services, Affiliate shall be granted a
non-exclusive, non-transferable, non-sublicens able, terminable
license to execute the object code version of such Software only
in conjunction with Affiliate's use of the equipment, if any, with
respect to which such Software was furnished and only in
conjunction with receipt of the Services. Affiliate shall be
granted no title or ownership rights to the Software, which rights
shall remain with NRTC MS or its suppliers.
d. Affiliate agrees to: (i) keep the Software free and clear of all
claims liens, encumbrances and rights; (ii) not provide or make
the Software available to any person except to its employees on
a ‘need to know’ basis; (iii) not reproduce, copy, or modify the
Software in whole or in part except as authorized in writing by
NRTC MS; and (iv) not attempt to decompile, reverse engineer,
disassemble, or in any other manner discover the source code
for the Software.
e. Affiliate agrees that it may use IP addresses supplied by
NRTC MS solely in connection with its receipt of the Services
and solely during the Service Order Term, and that it otherwise
has no rights in or to such IP addresses.
f. NRTC MS warrants that the NRTC MS Software shall
perform in substantial conformity with the documentation
therefor supplied by NRTC MS. With respect to Third Party
Software, where permissible, NRTC MS will pass through to
Affiliate any warranties therefore made to NRTC MS by the third
party proprietor of such Software. Affiliate must maintain the
installed Software revision to within at least two previous
Software version releases. NRTC MS’s sole obligation and
NRTC Managed Services
(877) 636-6682
https://www.nrtc.coop/solutions/managed -services
NRTC Managed Services
Confidential and Proprietary
Waterloo Fiber
3
Affiliate's sole and exclusive remedy under this warranty is
limited to the prompt repair or replacement, at NRTC MS’s
option, of the nonconforming Software.
g. A Party receiving Confidential Information (defined below)
from the other Party agrees: (i) to hold the disclosing Party’s
Confidenti al Information in confidence, (ii ) to protect the
disclosing Party ’s Confidential Information in the same manner
that it protects its own similar confidential information (but in no
event using less than reasonable care); and (iii ) except as
expressly authorized by this Agreement, not to, directly or
indirectly, use, disclose, copy, transfer or allow access to the
disclosing Party ’s Confidential Information. Notwithstanding the
foregoing, a receiving Party may disclose Confidential
Information as required by law; in such event, the receiving Party
shall inform the other Party prior to any such required disclosure
to allow the other Party to seek a protective order or other
limitations on such disclosure. Confidential Information means
any non-public information or data that is disclosed by one Party
to the other Party pursuant to this Agreement, regardless of
whether it has been disclosed in verbal, written or other form.
The Confidential Information of NRTC MS includes the
Software, as well as the structure, organization, design,
algorithms, templates, data models, logic flow, and screen
displays associated with the Software. Confidential Information
does not include information that the receiving Party can show:
(a) is or becomes publicly known or available without breach of
this Agreement; (b) is received by a receiving Party from a third
Party without breach of any obligation of confidentiality; or (c)
was previously known by the receiving Party as shown by its
written records.
h. Each Party acknowledges and agrees that any violation of
Section 6(g) may cause the disclosing Party irreparable injury
for which the disclosing Party would have no adequate remedy
at law, and that the disclosing Party shall be entitled to
preliminary and other injunctive relief against the receiving Party
for any such violation. Such injunctive relief shall be in addition
to, and not in limitation of, all other remedies or rights that
disclosing Party shall have at law or in equity.
i. Upon termination or expiration of this Agreement, the
receiving Party will return to the disclosing Party or destroy all
Confidential Information delivered or disclosed to the receiving
Party (including, with respect to Affiliate as receiving Party , the
Software), together with all copies in existence thereof at any
time made by the receiving Party .
7. Excused Performance
a. If either Party’s performance of any obligation hereunder
other than an obligation to pay money is delayed or prevented
by reasons outside its reasonable control, including, without
limitation, acts of God or of the public enemy; governmental
requirements; changes in governmental laws or regulations;
earthquakes; fires; floods or other catastrophes; epidemics or
quarantines; freight embargoes; w ar; terrorism; civil strife;
insurrection; riot; materials shortages; or labor stoppages (each,
a “Force Majeure Event”), then the affected Party shall promptly
notify the other Party of the Force Majeure Event and shall be
excused from performance to the extent delayed or prevented;
provided, however, that the affected Party shall take all
reasonable steps to avoid or remove such cause of
nonperformance and shall continue to perform to the extent
reasonably possible. Any time for performance set forth in this
Agreement shall be extended for a period equal to the period of
any delay due to a Force Majeure Event.
b. NRTC MS’s performance or non-performance hereunder
shall be excused to the extent that any wrongful or negligent act
or omission of Affiliate or its employees and agents, including,
but not limited to, any breach of this Agreement or Affiliate’s
failure to provide access to the Affiliate’s Premises, affects
NRTC MS’s performance and/or the availability of Services.
8. Suspension of Services. NRTC MS may suspend Services
in whole or in part without liability if: (a) Affiliate fails to pay a
past due balance for charges within ten (10) calendar days after
Affiliate’s receipt of written notice from NRTC MS of planned
suspension of Services; (b) Affiliate’s use of Services materially
exceeds Affiliate’s credit limit and/or then-current deposit
balance; or (c) any content transmitted over NRTC MS
Equipment violates or is alleged to violate any applicable laws
or rights of any party (including without limitation, laws relating
to copyright, trade secrets, privacy, libel, obscenity, and
harassment) or is otherwise reasonably unacceptable to NRTC
MS.
9. Termination
a. NRTC MS may, by sending written notice of termination to
Affiliate, terminate a Service Order (in whole or in part) or this
Agreement, in the event that: (i) any amounts due by Affiliate
remain unpaid sixty (60) days after the date such amounts were
first due; (i i) Affiliate (A) suspends its business operations; (B)
becomes insolvent, (C) makes a general assignment for the
benefit of creditors, or (D) files (or has filed against it) a petition
in bankruptcy which petition is not dismissed within sixty (60)
days thereafter; (iii) NRTC MS is ordered, by a federal, state or
local governmental entity, regulatory body or court of competent
jurisdiction, to cease providing Services, whether generally or
specifically to Affiliate; or (iv) changes in applicable law,
regulation, decision, rule or order materially increase the costs
to NRTC MS of, or materially affect other terms of NRTC MS’s
delivery of Services, and NRTC MS and Affiliate are unable to
reach agreement respecting new rates, terms and/or conditions
regarding such Services within ninety (90) days after NRTC
MS’s delivery of written notice requesting renegotiation thereof.
b. Either Party may, by sending written notice of termination,
terminate this Agreement or affected Service Order(s), in the
event the other Party has committed a material breach of this
Agreement, provided that such non-breaching Party has first
delivered written notice of such breach to the other Party, and
the breaching Party has not cured such breach within thirty (30)
calendar days of such notice.
c. At the end of any Service Order Term, and at Affiliate's
request, NRTC MS shall download or otherwise make available
to Affiliate all content owned by Affiliate, except for IP addresses
and any portion of the Software, in a manner and format
reasonably designated by Affiliate, or make any other
disposition of such content reasonably requested by Affiliate,
including, but not limited to, destruction or transfer of such
content to a third party designated in writing by Affiliate. These
transfer Services will be billed at the then-current NRTC MS
standard rates.
d. Sections 5(g), 6(a), 6(b), 6(d), 6(g), 6(h), 6(i), 10, 11, 12, 13,
14, 15, 17, and 18, and all other provisions of this Agreement
that by their express terms or nature survive the termination or
expiration of this Agreement, shall survive termination or
expiration of this Agreement.
e. Upon termination or expiration of this Agreement or any
Service Order for any reason whatsoever, all payment
obligations of Affiliate under this Agreement with respect to such
terminated Services (including any obligations to pay
termination charges in connection therewith), shall accrue
through the date of such termination and shall become
immediately due and payable.
f. Upon termination of any Service Order or this Agreement
by NRTC MS pursuant to Section 9(a) or 9(b), or by Affiliate for
any reason other than pursuant to Section 9(b), NRTC MS may,
NRTC Managed Services
(877) 636-6682
https://www.nrtc.coop/solutions/managed -services
NRTC Managed Services
Confidential and Proprietary
Waterloo Fiber
4
in addition to all other remedies that may be available to NRTC
MS at law or in equity, collect from Affiliate, and Affiliate shall
pay, a termination charge equal to the sum of the minimum
monthly charges for terminated Services for each full calendar
month remaining in each then-current Service Order Term in the
absence of such termination. If Affiliate provides written notice
to NRTC MS not to extend the Service Order Term of any
Service Order for the remaining term of any contract or
arrangement with a third party entered into by NRTC MS with
Affiliate’s knowledge concerning any telecommunications circuit
or other third-party equipment or service used by NRTC MS in
performing or delivering any Service pursuant to such Service
Order or used by Affiliate or Affiliate’s Subscribers to access any
Service provided by NRTC MS pursuant to such Service Order,
then Affiliate shall reimburse NRTC MS promptly upon request
for all termination charges incurred by NRTC MS as a result of
NRTC MS’s termination of the contract or arrangement
concerning such telecommunications circuit or other third-party
equipment or service.
g. Either Party may terminate this Agreement if there are no
active Service Orders in place upon forty -five (45) days written
notice to the other Party.
10. Indemnification
a. Each Party shall indemnify and hold harmless t he other
Party, its agents and employees against all loss, damage and
expense (including without limitation reasonable legal fees)
which the indemnified Party may sustain or become liable for on
account of injury to or death of persons, or on account of
damage to tangible property, resulting from performance under
this Agreement by the indemnifying Party or its employees,
agents or subcontractors, to the extent such loss or damage is
due to gross negligence or willful misconduct of the indemnifying
Party or its employees, agents or subcontractors or any
employee of any of them.
b. Except as set forth elsewhere in this Agr eement, Affiliate
shall defend, indemnify, and hold harmless NRTC MS, its
agents, employees and suppliers, from and against any and all
costs, losses, harm or damages (including without limitation
reasonable legal fees) arising out of or relating to Affiliate’s use
of the Services, including claims resulting from use of th e
Services by Affiliate’s Subscribers and/or the content of any
communications transmitted via the Services.
c. NRTC MS shall defend, indemnify, and hol d harmless
Affiliate, its agents and employees, from and against any action,
suit or proceeding brought against Affiliate which alleges that the
Services infringes any copyright, patent or other intellectual
property right, and NRTC MS shall pay damages awarded
against Affiliate (including court costs and reasonable attorneys’
fees) in connection therewith. The foregoing indemnity shall not
apply if the alleged infringement is attributable to: (i) content
supplied by Affiliate or any Subscriber; (ii) any combination of
the Services with any products or services not provided by
NRTC MS, or (iii) modification of the Services by any person or
entity other than NRTC MS. THIS SECTION STATES NRTC
MS’S SOLE LIABILITY TO AFFILIAT E WITH RESPECT TO
INFRINGEMENT OF ANY INTELLECTUAL PROPERTY
RIGHTS.
d. The indemnified Party shall promptly advise the
indemnifying Party of any such claim or action and shall
cooperate with the indemnifying Party, at the indemnifying
Party’s expense, in the defense or settlement of such claim or
action, provided that the indemnifying Party shall have sole
control thereof. The indemnified Party may participate in the
defense of any such claim or action at its own expense.
11. Limitation of Liability.Except for indemnification
obligations under this Agreement, the aggregate liability of each
Party to the other Party for any losses or damage arising out of
or in connection with this Agreement or the use of any Services ,
Software or NRTC MS Equipment, including without limitation
any cause of action sounding in contract, tort or strict liability,
shall be limited to actual, direct damages incurred but in no
event shall exceed an amount equal to the charges paid to
NRTC MS by Affiliate for the Services whi ch gave rise to the
liability during the three (3) calendar month(s) immediately
preceding the calendar month in which the act or omission giving
rise to such liability occurred; provided that the foregoing shall
not limit Affiliate’s obligation to pay any amounts due under this
Agreement. Neither Party shall be liable for any incidental,
indirect, consequential, punitive, or special damages of any
kind, nor shall either Party be liable for any lost profits or lost
sales.
12. Representations and Warranties
a. Mutual. Each Party represents and warrants that it has full
authority to enter into this Agreement, and that the execution
and performance of this Agreement by it does not and will not
violate or breach any third-party agreement, law or order to
which it is subj ect.
b. By Affiliate. Affiliate represents and warrants that
Affiliate will use the Services in compliance with all laws and
regulations including, without limitation, prohibition on the use of
telecommunications facilities to transmit illegal, obscene,
threatening, libelous, harassing, other offensive messages, or
otherwise unlawful material.
c. By NRTC MS.NRTC MS represents and warrants that the
Services will be provided: (a) in a professional and workmanlike
manner, using qualified personnel; and (b) in complian ce with
all laws and regulations .
d. THE WARRANTIES SET FORTH IN THIS AGREEMENT
CONSTITUTE THE ONLY WARRANTIES PROVIDED BY
NRTC MS , AND NRTC MS MAKES NO OTHER
REPRESENTATIONS OR WARRANTIES TO AFFILIATE.
NRTC MS HEREBY EXCLUDES AND DISCLAIMS, WITHOUT
LIMITATION, ALL WARRANTIES NOT EXPRESSLY SET
FORTH IN THIS AGREEMENT, WHETHER EXPRESS OR
IMPLIED, INCLUDING WITHOUT LIMITATION, ANY
EXPRESS OR IMPLIED WARRANTY OF MERCHANTABILITY
OR FITNESS FOR A PARTICULAR PURPOSE, AND ANY
EXPRESS OR IMPLIED WARRANTIES ARISING FROM
COURSE OF PERFORMANCE, COURSE OF DEALING, OR
FROM USAGE OF THE TRADE. AFFILIATE
ACKNOWLEDGES NRTC MS DOES NOT REPRESENT OR
WARRANT THAT THE SERVICES OR SOFTWARE WILL BE
UNINTERRUPTED OR ERROR -FREE.
13. Assignment.Neither Party may assign this Agreement in
whole or in part, including without limitation by operation of law
or by merger in which such Party does not survive, except with
the written consent of the other Party (which consent shall not
be unreasonably wi thheld, delayed or conditioned), and any
attempt to do so shall be null and void, except that either Party
may assign this Agreement without the consent of the other
Party to a company that acquires all or substantially all of its
assets or the assets associated with the division of the Party
being sold, or to an entity that (directly or indirectly) controls, is
controlled by, or is under common control with such Party
without the other Party’s consent, where “control” means the
direct or indirect ownership of more than fifty percent (50%) of
the voting equity. No third party shall have any interest herein or
be deemed a third party beneficiary hereof and nothing
contained herein shall be construed to create any rights
enforceable by any third party.
NRTC Managed Services
(877) 636-6682
https://www.nrtc.coop/solutions/managed -services
NRTC Managed Services
Confidential and Proprietary
Waterloo Fiber
5
14. Notices. Unless otherwise specified herein, any
notice required or permitted to be given hereunder shall be in
writing and delivered by one of the following means: (i) by
personal delivery; (ii) by prepaid, overnight delivery or courier
service; or (iii) by the U.S. Postal Service, first class, certified
mail, return receipt requested, postage prepaid. Any such notice
shall be effective five (5) days after the day it is mailed or upon
receipt as evidenced by the U.S. Postal Service return receipt
card, whi chever is earlier, and upon receipt if given or confirmed
via hand delivery or overnight courier service. Notices shall be
addressed as set forth on page 1 of this Agreement or to such
other addresses of which the Parties hereto have been advised
by notice pursuant to this Section. Notices to NRTC MS shall
be to the attention of the President. Notices to Affiliate shall be
to the attention of Eric Lage, General Manager.
15. Disputes
a. In the event of a disagreement between the Parties relating
to this Agreement or its performance, or any asserted breach
thereof, the Parties shall attempt to negotiate a mutually
satisfactory resolution within forty -five (45) days. Should such
negotiations fail, either Party may submit the disagreement for
binding arbitration before a single arbitrator pursuant to the
Commercial Arbitration Rules and Expedited Procedures of the
American Arbitration Association. The arbitration will take place
in Linn County, Iowa. The arbitrator shall be required to apply
the laws of the state of Iowa, without regard to its conflicts of
laws principles, and shall not be authorized to vary or ignore the
provisions of this Agreement. The arbitrator shall provide
detailed findings of facts and conclusions of law as part of any
award. The award of the arbitrator shall be enforceable in any
court of law having jurisdiction. Nothing in the foregoing shall
prevent either Party from bringing a claim for temporary
injunctive relief in a court of competent jurisdiction.
b. The Parties irrevocably consent to the jurisdiction of the
state and federal courts of the state of Iowa.
c. The prevailing Party in any dispute under this Agreement
shall be entitled to recover its attorney’s fees and
arbitration/court costs.
16. Marketing
a. During the term of this Agreement, NRTC MS shall have
the right, but not the obligation, to use the name and logos of
Affiliate on NRTC MS websites and other marketing documents,
for the purpose of identifying Affiliate as a business partner,
provided that the form of use of any Affiliate logo is approved in
advance by Affiliate, such approval not to be unreasonably
withheld or delayed. NRTC MS agrees that all use of Affiliate
trademarks or logos shall inure to the benefit of Affiliate.
b. Affiliate further agrees to provide NRTC MS with the
following customer reference information for possible use on
NRTC MS’s websites and on other promotional material in
conjunction with Affiliate’s name: (i) a brief marketing summary
of Affiliate’s products and services that are based in whole or in
part on NRTC MS’s Services, and (ii) a quotation on how NRTC
MS’s Services contributed to the success of Affiliate’s products
and services.
c. Upon mutual agreement, NRTC MS and Affiliate shall issue
a joint press release announcing the relationship contemplated
by this Agreement with mutual endorsements for Affiliate’s
products and services and NRTC MS’s Services.
17. General
a. This Agreement is non-exclusive and shall not be
construed to require NRTC MS to refrain from providing any
Services in competition with Affiliate, or to require Affiliate to
refrain from acquiring any services from a competitor of NRTC
MS (unless expressly agreed in a Services Order).
b. NRTC MS may in its sole discretion subcontract the
performance of any or all Services to subcontractors of NRTC
MS’s choosing as it deems appropriate, but such subcontracting
shall not relieve NRTC MS of any responsibility or obligation
under this Agreement.
c. This Agreement and the rights and obligations of the
Parties hereto hereunder shall be governed by, and construed
and enforced in accordance with, the laws of the State of Iowa
without regard to Iowa’s conflict of law principles. The parties
agree that the United Nations Convention on Contracts for the
International Sale of Goods shall not apply to this Agreement.
d. Any provision of this Agreement held or determined by a
court or other legal authority of competent jurisdiction to be
illegal, invalid or unenforceable in any jurisdiction shall be
deemed separate, distinct and independent, and shall be
ineffective only to the extent of such holding or determination
without (i) invalidating the remaining provisions of this
Agreement in that jurisdiction or (ii) affecting the legality, validity
or enforceability of such provision in any other jurisdiction.
e. The Parties are independent contractors, and n othing in
this Agreement shall be construed as creating a j oint venture or
partnership between the Parties. Neither Party has or shall have
any authority to bind, assume any obligation for or incur any debt
on behalf of the other Party in any respect whatsoever.
f. This Agreement may not be modified or amended or any
rights of a Party to it waived except in writing signed by duly
authorized representatives of the Parties hereto.
g. Section headings are inserted for convenience only and
shall not be used in any way to construe the terms of this
Agreement.
h. This Agreement (including all Service Orders and all terms
and conditions set forth therein and referenced or attached
thereto) constitutes the entire agreement between the Parties
with respect to its subject matter and supersedes all prior
understandings and agreements. No agent, employee or
representative of NRTC MS has any authority to bind NRTC MS
to any representation or warranty concerning the Services
except as stated in this Agreement. In the event of a conflict or
inconsistency between any Service Order and the remaining
terms of this Agreement, the terms of the applicable Service
Order shall control.
18. Definitions. When used in this Agreement, the following
terms shall have the definitions set forth below. Other terms may
be defined elsewhere in this Agreement.
a. Affiliate’s Premises means the location or locations
occupied by Affiliate or Subscribers to which Services are
provided or delivered or at which NRTC MS Equipment can be
located.
b. Subscribers means, individually and collectively, any and
all third parties who gain access to or utilize or are authorized to
utilize Services provided to Affiliate hereunder.
c. Excused Outage means any outage, interruption,
unavailability, delay in provision of, or other degradation of
Service (i) caused by scheduled maintenance events of which
Affiliate receives at least two (2) days prior notice, (ii) caused by
actions or inactions of Affili ate or Affiliate's Subscribers, or
failure of Affiliate-provided power or equipment, or (iii) under
circumstances in which NRTC MS’s performance is excused as
provided in Section 7 or Section 8.
d. NRTC MS Equipment means property owned or leased by
NRTC MS or any of its suppliers and used to deliver Services,
NRTC Managed Services
(877) 636-6682
https://www.nrtc.coop/solutions/managed -services
NRTC Managed Services
Confidential and Proprietary
Waterloo Fiber
6
including without limitation terminal and other equipment, wires,
lines, ports, routers, switches, cabinets, racks, and servers.
e. Services mean the services set forth in an agreed Service
Order. An individual Services offering may be referred to as a
“Service ” in this Agreement.
f. Service Order means a document executed or otherwise
agreed by both parties which sets forth, at a minimum: (a) the
Services that are the subject of such Service Order, and (b) fees
applicable to such Services .
I N W ITNESS W HEREOF , the Parties hereto have caused this Master Services Agreement to be executed by their respective duly
authorized representatives as of the Effective Date.
Waterloo Telecommunications Utility dba Waterloo Fiber
(“Affiliate”)
By: _____________________________________
Name: _______________________________________
Title: _______________________________________
Date Signed: __________________________________
NeoNova Network Services, LLC , dba NRTC Managed Services
(“NRTC MS”)
By : __________________________________________
Name: ____________________________________________
Title: ____________________________________________
Date Signed: ______________________________________