DARK FIBER SUBSCRIPTION AGREEMENT

Transcription

1 DARK FIBER SUBSCRIPTION AGREEMENT, 20 This Dark Fiber Subscription Agreement ( Agreement ) is made by and between the Valparaiso Redevelopment Commission ( VALPONET ), and, a ( Subscriber ). VALPONET and Subscriber may be referred to individually as a Party or together as the Parties. In consideration of the promises, the mutual covenants, terms and conditions herein contained, the Parties mutually covenant and agree as follows: Commented [PL1]: Customers will either be Commercial End User or Service Providers as defined below. ARTICLE I DEFINITIONS For the purpose of this Agreement, the following terms when used herein shall have the meaning assigned to them in this Article I: 1.1 City means the City of Valparaiso Indiana. 1.2 VRDC means Valparaiso Redevelopment Commission a governmental entity established under Indiana Code et seq. 1.3 Reserved. 1.4 Subscriber means the legal entity licensing the use of Dark Fiber from ValpoNet. 1.5 Dark Fiber means unlit optical fiber cable strands owned by ValpoNet. 1.6 Authorized Connected Location means a specific physical location that has been approved by ValpoNet to terminate fiber circuit or fiber drop. 1.7 Facilities means. 1.8 Fiber Circuit means one contiguous pair of fiber optic cable from any authorized connected location to any other authorized connected location on the network. Commented [PL2]: We are still finalizing a definition but this will essentially define the fiber infrastructure. 1.9 Fiber Drop means any authorized connected location that a fiber circuit enters and exits on the same contiguous fiber pair. 1

2 1.10 Network means the optical fiber strands, inner duct, conduit, building entrance facilities, and associated appurtenances owned by VALPONET and located in public rights-of-way Fiber Lateral means the optical fiber strands, inner duct, conduit, building entrance facilities, and associated appurtenances owned and maintained by Subscriber to VALPONET specifications and located on the Subscriber side of the Designated Fiber Demarcation/Splice Point Designated Fiber Demarcation/Splice Point means any appurtenance designated by VALPONET where Network connects to Lateral Business Day unless otherwise specified, means a standard calendar day, non-holiday, Monday through Friday from the hours of 9am to 5pm, Central Standard Time Commercial End User means an entity that is given access to ValpoNet fiber for its sole internal use Service Provider means an entity that is provided access to ValpoNet fiber for the purpose of selling bandwidth based services to multiple end users. ARTICLE II EXHIBITS 2.1 Exhibits to Agreement. The following Exhibits are attached hereto and incorporated herein by reference and made a part hereof: (A) Proposal for Subscription of Dark Fiber ( Exhibit A ) (the Proposal ) (B) (C) (D) Lateral Specifications ( Exhibit B ) Service Level Agreement ( Exhibit C ) Acceptable Use Policy ( Exhibit D ) ARTICLE III AGREEMENT 3.1 Access and License. (A) Fiber Subscription. Subject to the terms and conditions of this Agreement, VALPONET grants to Subscriber a non-exclusive license to use one pair of fiber optic cable (total of 2 strands) in the Network (the Subscribed Fibers ) as further identified in Exhibit A, Subscriber s Proposal, on the condition that Subscriber shall timely pay all applicable fees, rates, charges, and applicable taxes ( Fees ), and shall be in compliance with all other covenants, terms, and conditions of the Agreement, including Exhibit D, Acceptable Use Policy, attached hereto and incorporated herein. This grant is subject to the right of VALPONET to occupy and use the public rights-of-way, public utility easements, private property, and any other property in and on which the VALPONET Network is located. Nothing in this Agreement shall be deemed to grant, convey, or vest an interest or estate in the Network, the Dark Fiber, 2

3 or any land, including but not limited to any fee, leasehold, or easement, in Subscriber. Exhibit A also identifies the service addresses (herein so called) along and on the Network between which Subscriber shall connect. (B) Accessing the Network, Lateral Construction. Subscriber shall be responsible for constructing the Fiber Lateral(s) needed to access the Network per the VALPONET technical specifications listed below. BRYAN SCOTT TO INSERT LATERAL SPECIFICATION HERE. Commented [PL3]: These are forthcoming (C) Technical Specifications of Network. VALPONET commits minimum fiber performance parameters as stated in Exhibit C, Service Level Agreement attached hereto and incorporated herein. (D) Installation and Maintenance. Subscriber s Facilities shall be installed and maintained in accordance with the requirements and specifications of the then current editions of the National Electrical Code ( NEC ) and the National Electrical Safety Code ( NESC ), each of which are incorporation by reference in this Agreement, and the rules and regulations of the Occupational Safety and Health Act of 1970 ( OSHA ), and in compliance with any lawful rules or orders now in effect or that may hereafter be issued by VALPONET, the City, or other authority having jurisdiction. (E) VALPONET Policy/Guidelines for Dark Fiber Subscriptions. The Subscriber acknowledges that this Agreement is subject to Exhibit D, VALPONET Acceptable Use Policy, and acknowledges receipt of a copy of the Acceptable Use Policy, effective as of the Commencement Date. (F) Violations. If Subscriber s Facilities, or any part thereof, are not maintained in accordance with conditions provided by this Agreement, and Subscriber has not corrected the violation within thirty (30) days from receipt of written notice from VALPONET, VALPONET may at its own option correct such conditions at Subscriber s expense or may terminate this Agreement pursuant to Section 3.9 hereof. VALPONET will notify Subscriber in writing prior to performing such work whenever practicable. When VALPONET reasonably believes, however, that such conditions pose an immediate threat to the safety of VALPONET employees or the public, interfere with the performance of the service obligations of VALPONET, or pose an immediate threat to the physical integrity of the Network, VALPONET may perform such work and/or take such action at Subscriber s expense that it deems necessary without first giving written notice to Subscriber, and VALPONET shall be indemnified by Subscriber for such work in accordance with Section 3.5 of this Agreement. In furtherance of such right, Subscriber irrevocably grants VALPONET and its agents the right to enter upon Subscriber s property for the limited purpose of addressing such matters. As soon as practicable thereafter and not later than seventy-two(72) hours after having taken such action, VALPONET will advise Subscriber in writing of the work performed or the action taken and make all reasonable efforts to arrange for re-accommodation of Subscriber s Facilities so affected. Subscriber shall be responsible for paying VALPONET for all reasonable costs incurred by VALPONET in taking action under this section. (G) Removal at End of Term or Termination. Upon expiration or termination of this Agreement, VALPONET shall determine whether Subscriber s Facilities shall be removed or remain in place. If VALPONET determines that the Facilities shall be removed, VALPONET shall notify Subscriber, and Subscriber shall, within thirty (30) days of such notification, remove its Facilities under the direction of VALPONET. 3

4 (H) Rearrangement, Relocation and Modification. Except as provided herein during the Exclusive Use Period, nothing in this Agreement shall act as a limitation, restriction, or prohibition against VALPONET with respect to any agreement which VALPONET has heretofore entered into, or may in the future enter into with third parties regarding the Network, including the identified portion of the Network covered by this Agreement. Subscriber acknowledges that such agreements with subsequent third parties may require rearrangement, modification or relocation of Subscriber s Facilities, the Subscribed Fiber or the Network necessary. Subscriber agrees that, in such event. Subscriber will cooperate in good faith with such rearrangement or relocation work; provided, however, that VALPONET shall, except for emergency situations described below, give Subscriber thirty (30) days written notification of such intent to rearrange, modify or relocate the Subscribed Fiber or the Network. Subscriber shall have no responsibility for costs and expenses relating to the relocation, modification, or alteration of the Subscribed Fiber or the Network for the purpose of meeting the needs of VALPONET or the needs of any other Subscriber. In all cases, Subscriber shall bear any costs incurred in any rearrangement, relocation or modification made by Subscriber s Facilities. (I) Emergency Use/Relocation. In the event of an emergency as determined by VALPONET, VALPONET may rearrange, relocate, modify, or alter the Subscribed Fibers and/or Network without prior notice to Subscriber. In such event, as soon as reasonably practicable thereafter and not later than seventytwo (72) hours after having taken such action, VALPONET will advise Subscriber in writing of the emergency work performed or the action taken with respect to any emergency modification or alteration of the Subscribed Fibers and/or Network. 3.2 Term and Renewals. (A) Initial Term. The Initial Term of this Agreement shall commence on (the Commencement Date ) and end on (the Expiration Date ). (B) Renewal. Subject to the terms and conditions of this Agreement, and provided Subscriber is not in default of any of the material terms of this Agreement (including, but not limited to, payment of all fees and charges), beyond the applicable cure period, Subscriber shall have the option to extend this Agreement for successive additional one (1) year renewal periods ( Renewal Term ) commencing on the Expiration Date, of the Initial Term or of any subsequent Renewal Term. This Agreement shall be automatically renewed for each successive Renewal Term unless Subscriber sends written notice of nonrenewal to VALPONET no later than thirty (30) days prior to the expiration of the Initial Term or any Renewal Term, such notice to be provided in accordance with Section 3.16 of this Agreement. VALPONET shall have the right to reject any extensions and/or renewals upon written notice to the Subscriber. 3.3 Fee for License and Access. (A) Fees. Subscriber shall pay to VALPONET the fees that are identified in Exhibit A, Subscriber s Proposal, in accordance with the covenants, terms and conditions of the Agreement. In addition, Subscriber shall pay, upon the execution of Exhibit A, the Lateral Connection Fee. (B) Method of Payment. Subscriber shall pay all fees and charges, as and when they are invoiced by VALPONET, in the amount and on the due dates identified in Exhibit A, Subscriber s Proposal. 4

5 (C) Result of Untimely Payment. VALPONET reserves the right to charge the Subscriber interest on the lump sum at a rate that is the lowest of either (i) of 18% per annum, or (ii) the maximum amount allowable by law if the Subscriber fails to timely pay the lump sum amount. The Subscriber shall timely pay any and all undisputed portions of the fees in the event the Subscriber disputes in good faith any other portion of the fees. VALPONET, upon two (2) business days prior written notice, reserves the right to temporarily suspend or terminate services to the Subscriber until the Subscriber has paid any and all undisputed fees. An administrative charge of Three Hundred Fifty Dollars ($350) or such other additional charges as may be established by VALPONET shall be due and payable by the Subscriber for the cost of processing and handling the Subscriber s failure to pay any of the fees required by this Agreement. VALPONET reserves the right to implement an administrative charge and charge the Subscriber interest on the administrative charge if payment is not made within thirty (30) days of its assessment. 3.4 Subscriber s Use of Network. (A) Purposes of Use of the Network. Subscriber shall use the Network only for the purpose of the transmission of data in accordance with Exhibit D, Acceptable Use Policy. Subscriber shall comply with all applicable ordinances, statutes and regulations of local, state and federal government agencies. In the event Subscriber uses the Network to provide, in whole or in part, services subject to local, state or federal regulations, Subscriber shall apply for, secure and maintain the required certifications to do so before offering such services on VALPONET Network to Subscriber s customers. (B) Special Limitation on Use. Subscriber acknowledges that the Network and Subscribed Fiber to which it is being provided access is not owned or operated by VALPONET as a telecommunications or other utility and Subscriber promises and warrants that it shall not in its use of the Subscribed Fiber take any action, or refrain from taking any action that could reasonably cause VALPONET to be treated as a utility as determined by Indiana law, including, but no limited to, holding out VALPONET to third parties as a utility and failing to receive all required permits for Subscriber s utility purposes as applicable. (C) [For Commercial End-Users] Third Party Users. Subscriber shall not, without prior written consent of VALPONET and amendment of this Agreement, provide bandwidth to a third party utilizing the Subscribed Fibers, Fiber Lateral, Fiber Circuit or a Fiber Drop. (D) [For SPs] [Temporary Exclusive Use. Subscriber shall have exclusive use of the Subscribed Fibers, Fiber Lateral, Fiber Circuit and Fiber Drop for a period commencing on and ending on (the Exclusive Use Period ). During the Exclusive Use Period, Subscriber may permit only its customers to use the Subscribed Fibers, Fiber Lateral, Fiber Circuit and Fiber Drop. At the termination of the Exclusive Use Period, Subscriber s customers may retain use of the Network at Subscriber s discretion and Subscriber may add additional customers to the Network at subscriber s discretion, but Subscriber is thereafter prohibited from restricting the use of the Subscribed Fibers, Fiber Lateral, Fiber Circuit and Fiber Drop, and thereafter use of the Subscribed Fibers, Fiber Lateral, Fiber Circuit and Fiber Drop by third parties in addition to customers of Subscriber shall be at the discretion of VALPONET. Except as otherwise provided in this Agreement, the use of the Subscribed Fibers by a third party shall not interfere with Subscriber s permitted use of the subscribed Fibers. 5

6 3.5 Indemnity and Hold Harmless. To the fullest extent permitted by law and without limitation by the provisions of Section 3.6 relating to insurance, the Subscriber shall indemnify, defend and hold harmless the City, VRDC, VALPONET, and their officers, directors, employees, agents, successors and assigns from and against any and all demands, claims, injuries, losses, or liabilities of any nature, including death or injury to any person, property damage, or any other loss and including without limitation all damages, penalties, fines and judgments, associated investigation and administrative expenses and defense costs, including, but not limited to reasonable attorney s fees, courts costs and costs of alternative dispute resolution, arising out of, or resulting in any way from or in connection with the performance of this Agreement. The Subscriber s obligations under this Section apply regardless of whether or not a liability is caused or contributed to by any negligent (passive or active) act or omission of VALPONET or the City, except that the Subscriber shall not be obligated to indemnify for liability arising from the sole negligence or willful misconduct of VALPONET or the City. The provisions of this Section shall survive the expiration or termination of this Agreement. Subscriber shall indemnify, defend and hold harmless VALPONET, the City and the VRDC and its officers, directors, employees, agents, successors and assigns from and against any and all losses, liabilities, damages, penalties and claims and all related costs and expenses (including reasonable attorneys fees) (collectively Losses ) related to claims made by third parties against VALPONET, the City or the VRDC alleging that Subscriber s use of the Subscribed Fiber (including, without limitation, Subscriber s services, any marks, logos or other indicia of any party ) infringe the patents, copyrights, trademarks or service marks of other intellectual property rights of such third parties. In the event that VALPONET, the City or the VRDC or Subscriber is subject to investigation or prosecution, criminal or civil, as a result of Subscriber s use of the Subscribed Fibers, including, but not limited to the Communications Decency Act, the Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act ( USA Patriot Act ), the Interstate Wire Act, or other federal or state law ( Internet Law ), Subscriber agrees to take all actions and pay all costs incurred by or for VALPONET, the City or the VRDC to respond to such investigation or prosecution, and Subscriber agrees to indemnify VALPONET, the City and the VRDC for any and all Losses suffered relating to such laws because of Subscriber s use of the Subscribed Fibers. Should VALPONET, the City or VRDC be subject to an administrative or judicial order under and Internet Law relating to the Subscribed Fibers or the Subscriber s use of the Subscribed Fibers, Subscriber agrees to cooperate with VALPONET, the City and the VRDC, or either resist of comply in VALPONET s discretion, and should such order involve costs or Losses related to Subscriber s services, then Subscriber agrees to indemnify and hold VALPONET, the City and the VRDC harmless for such costs or Losses. VALPONET agrees that it will follow reasonably acceptable industry practices in repairing any Network service interruptions caused by a Network cable cut or physical plant failure. Provided that VALPONET follows reasonably acceptable industry practices in repairing any such Network service interruption and the service is restored in a reasonable amount of time, not to exceed twenty four (24) hours, Subscriber agrees that VALPONET shall not be liable for breach of this Agreement. IN NO EVENT SHALL VALPONET BE LIABLE FOR ANY INCIDENTAL AND CONSEQUENTIAL DAMAGES INCLUDING BUT NOT LIMITED TO BUSINESS 6

7 INTERRUPTION DAMAGES IN CONNECTION WITH A NETWORK SERVICE INTERRUPTION. 3.6 Insurance. Not later than the Commencement Date, Subscriber shall provide to VALPONET a certificate of insurance naming VALPONET, the City, and all of their elected officials, officers and employees, agents and volunteers as additional insureds, and evidencing its maintenance of a comprehensive general liability policy covering bodily injury, property damages (broad form), and personal injury with limits of not less than One Million Dollars ($1,000,000) for injury to or death or one or more persons in any one occurrence, and Five Hundred Thousand Dollars ($500,000) for damage or destruction to property in any one occurrence, and Two Million Dollars ($2,000,000) general aggregate. The form and carriers shall be mutually acceptable to VALPONET and Subscriber. During the Term, should such policy of insurance lapse or terminate, Subscriber shall give VALPONET thirty (30) days prior written notice, thereof and shall provide a new certificate evidencing proper insurance coverage according to the provisions of this paragraph prior to such lapsing or termination. In addition, subscriber shall immediately notify VALPONET in writing if such policy is cancelled for any reason. Subscriber shall cause contractors, subcontractors, suppliers, service providers, and others performing work of any type for or on behalf of Subscriber to maintain policies of insurance equal to Subscriber s requirements set forth in this paragraph. 3.7 Credits For Network Outages. Upon request by a Subscriber and upon research, verification and approval by VALPONET, VALPONET will credit a Subscriber s next billing statement for Network outages due to circumstances and situations within the control of VALPONET in an amount equal to the total monthly cost of the Subscribed Fiber impacted by an outage divided by the hours in the month the outage occurred multiplied by the amount of time the fiber is not available due to an outage, rounded up to the nearest hour. 3.8 Subscriber Default. VALPONET may terminate the Agreement pursuant to Section 3.9, and any and all unexpired Proposals upon the occurrence of an Event of Default caused by Subscriber if, for an Event of Default of a financial nature, Subscriber fails to cure the default within two (2) business days of receipt of the notice of default, or, for an Event of Default of a nonfinancial nature, Subscriber fails to cure the default within ten (10) days of receipt of the notice of default. A failure to cure an Event of Default within the specified period of time shall constitute a material breach of the Agreement. (A) Default: Events of Default. The occurrence of any of the following shall constitute an Event of (i) Failure to pay any fee when due unless the Subscriber, in good faith, disputes all or any portion of the fee, in which event the Subscriber shall pay only that portion of the fee that it does not dispute. (ii) Failure to perform, observe or comply with any other covenant, term or condition of the Agreement Subscriber is required to observe or perform, including, but not limited to a violation by Subscriber as described in Section 3.1(F). 7

8 (iii) Assignment or transfer of the Subscriber s interest in the Agreement, voluntarily or by operation of law. (iv) Assignment or transfer of Subscriber s assets for the benefit of the Subscriber s creditors. (v) Filing of a petition in bankruptcy or a petition for reorganization or other arrangement relating to the bankruptcy, insolvency, or receivership of the Subscriber and/or its assets, unless the same is dismissed within one hundred eighty (180) days of the filing thereof. (vi) Any representation or warranty of Subscriber that shall prove to have been incorrect, false, or misleading in any material respect when made. (B) Obligation to Perform; Payment. The termination of the Agreement and any and all unexpired Renewal Terms shall not relieve Subscriber of its obligation to perform its obligations, including the payment of the fees, prior to the effective date of termination. (C) Remedies for Default. VALPONET shall have the following rights and remedies, in addition to all other rights and remedies provided by applicable law, to which VALPONET may resort cumulatively, or in the alternative: (i) keep the Agreement in effect and enforce all rights and remedies that it enjoys under the Agreement, including but not limited to the right to payment of all fees as they shall become due, by appropriate legal action; (ii) seek specific performance of the Agreement in addition to other rights and remedies that are available at law or in equity; and (iii) terminate the Agreement. 3.9 Termination (A) By VALPONET. VALPONET may terminate this Agreement for all or a portion of the Subscribed Fiber ( Terminated Fiber ) upon giving 30 days notice, as provided herein, if any of the following occur: (i) VALPONET decides for any reason to terminate operation and maintenance of the Network; (ii) VALPONET determines that it needs the Network and Subscribed Fiber for its own uses. Any fees paid in advance by Subscriber shall be refunded on the date the termination is effective; (iii) notwithstanding any other provision in this agreement, if at the end of any fiscal year of the City of Valparaiso or VALPONET, sufficient funds are not appropriated for VALPONET obligations for the following fiscal year; 8

9 (iv) notwithstanding any other provision in this Agreement, if, at any time within a fiscal year of the VRDC, funds are only appropriated for a portion of the fiscal year and funds for VALPONET obligations are no longer made available; (v) the total or partial destruction of the Network; or (vi) an Event of Default by Subscriber, as described in Section 3.8. By Subscriber. Subscriber may terminate this Agreement for all or a portion of the Subscribed Fiber upon thirty (30) days notice, so long as Subscriber has fully paid all costs, and all accrued fees, due to VALPONET for the Terminated Fiber. Subscriber shall pay a termination fee in the amount of one hundred ten percent (110%) of the annualized subscription rate for such Terminated Fiber. (B) Notice of Termination. For terminations contemplated by this section, the Parties shall give Notice of Termination in writing by certified mail, return receipt requested. Such notice shall be effective upon receipt as evidenced by the return receipt, or such later date as stated in the Notice Damages. Notwithstanding any other provision of this Agreement, neither VALPONET nor the Subscriber shall be liable to the other for any consequential, incidental, indirect, liquidated, or special damages, or for lost revenues, lost opportunities, or lost profits to any person arising out of this Agreement or the performance or nonperformance of any provision of this Agreement, even if such party has been informed of the possibility of such damages. The total liability of VALPONET for any claim or demand of Subscriber arising out this Agreement shall not exceed the amount of the fees paid by the Subscriber to VALPONET prior to the date of the claim or demand Applicable Law. Subscriber agrees to comply with all federal, state, or local laws, rules and regulations applicable to Subscriber s activities under this Agreement including, but not limited to: Discrimination in employment, retail sales requirements, and transient merchant permit requirements Representations and Warranties. (A) By Subscriber. The Subscriber represents and warrants that: (i) it is in compliance with all applicable laws, rules, regulations and tariffs relating to its activities covered by the Agreement; (ii) it is not in delinquency for payment of any VALPONET or City fees, taxes or charges for electricity and other utilities and services; (iii) it has the requisite power and authority to carry on the business it now conducts; 9

10 (iv) it is a sole proprietorship or a corporation, partnership, or limited liability company, duly formed, validly existing and in good standing under the laws of the State of Indiana; (v) it has the power to enter into and perform its obligations under the Agreement, which constitutes a legal, valid and binding obligation of the Subscriber and enforceable against it in accordance with its covenants, terms and conditions; (vi) the execution, delivery and performance of its obligations under the Agreement have been duly authorized; (vii) there is no pending or threatened action or proceeding before any court or agency affecting the financial condition or operation of the Subscriber or its ability to perform its obligations under the Agreement; (viii) it shall conduct its business utilizing the Subscribed Fiber in a dignified manner and at all times in compliance with all federal, state and local laws, ordinances, rules, regulations and codes; (ix) it shall keep and maintain all of its equipment, property, installations, markings and signs used in conjunction with the Subscribed Fiber in a neat, clean and safe condition and in good operating order and repair; (B) By VALPONET. VALPONET represents and warrants that VALPONET shall maintain the Network in good operating condition for normal use, in accordance with Exhibit C, Service Level Agreement. VALPONET OTHERWISE EXPRESSLY DISCLAIMS ANY EXPRESS OR IMPLIED WARRANTY BEYOND THE MANUFACTURER S WARRANTY AS TO THE FITNESS OF ANY MATERIALS, EQUIPMENT, OR ANY OTHER PART OR ALL OF THE FIBER OPTIC NETWORK OR THE SUBSCRIBED FIBERS, CONSTRUCTED OR TO BE CONSTRUCTED. The warranties and remedies set forth above constitute the only warranties and remedies with respect to this Agreement, and are in lieu of all other warranties, written or oral, statutory, express or implied, including, without limitation, the warranty of merchantability or fitness for a particular purpose or use Waiver. The consent of a Party to any act or omission of the other Party shall not be deemed to imply consent to or constitute a waiver of a default or breach of any term or condition of the Agreement or a continuing waiver of a subsequent default or breach of the same or different term or condition, nor shall any custom or practice which may arise between the Parties in the administration of the Agreement be construed to waive or lessen the right of a Party to insist upon full performance of the other Party in strict compliance with the covenants, terms and conditions of the Agreement. No payment, partial payment, acceptance or partial acceptance by VALPONET will operate as a waiver on the part of VALPONET of any of its rights under the Agreement Assignment. (A) Restrictions on Subscriber Assignment. Except as otherwise provided herein, Subscriber may not sell, assign, sublease or otherwise transfer in whole or in party (whether voluntarily or by action 10

11 of law), directly, indirectly, or contingently this Subscription or any interest herein to any third party, without the prior consent of VALPONET, which consent shall not be unreasonably withheld. (B) Assignment by VALPONET. VALPONET may, without prior consent of Subscriber, assign this Agreement or any of its rights or obligations hereunder without limitation to any successor, affiliate, governmental entity, quasi-governmental entity, non-profit, or other entity or organization of any type with legal power to perform under this Agreement Disputes. Both Parties shall attempt to resolve any controversy, claim, problem, or dispute arising out of or related to this Agreement through good faith consultation in the ordinary course of business. If unsuccessful, the dispute may be submitted to mediation, but only upon the mutual written agreement or consent of both Parties, with such agreement or consent being at the discretion of each Party. Each party shall bear its own costs of mediation. If mediation does not resolve the dispute, either Party may file suit in law or equity in the state courts of Porter County, Indiana Notices. All notices hereunder must be in writing and shall be deemed validly given if delivered personally or if sent by certified mail, return receipt requested, by commercial overnight delivery service, by facsimile transmission, or by electronic transmission, addressed as follows (or any other address that the party to be notified may have designated to the sender by like notice): If to VALPONET, to: Executive Director, Valparaiso Redevelopment Commission 162 W. Lincolnway Valparaiso, IN With a copy to: Patrick Lyp Valparaiso Redevelopment Commission 162 W. Lincolnway Valparaiso, IN If to Subscriber, to: 3.17 Binding Effect. This Agreement shall extend to and bind the heirs, personal representatives, successors and assigns of the Parties hereto. 11

12 3.18 Complete Agreement; Amendments. This Agreement constitutes the entire agreement and understanding of the parties and supersedes all offers, negotiations, and other agreements of any kind. There are no representations or understandings of any kind not set forth herein. Any modification of or amendment to this Agreement must be in writing and executed by both parties. Each Party and its counsel have reviewed the Agreement. Accordingly, the normal rules of construction to the effect that any ambiguity will be resolved against the drafting party will not be employed in the construction and interpretation of the Agreement No Third Party Beneficiaries. This Agreement is for the sole benefit of the Parties hereto and their respective permitted successors and assigns, and shall not be construed as granting rights to any person or entity other than the Parties, or imposing on either Party obligations to any person or entity other than a Party. Without limiting the preceding, any and all customers and end users of Service Providers shall not be deemed a party to this Agreement or derive and benefit from this Agreement Governing Law; Venue. This Agreement shall be construed in accordance with the laws of the State of Indiana. Trial of any action regarding any dispute regarding this Agreement and/or any Renewal Terms will be vested in the state courts of Porter County, Indiana Severability. If any term of this Agreement is found to be void or invalid, such invalidity shall not affect the remaining terms of this Agreement, which shall continue in full force and effect Authority. Each Party represents and warrants that it is duly formed, has obtained all necessary approvals, consents and authorizations to enter into this Agreement, has full legal power to consummate all transactions connected with, and to perform all of its obligations set forth herein Indiana Access to Public Records Act. Subscriber acknowledges and agrees that VALPONET is a public agency as defined by the Indiana Access to Public Records Act, IC (the Act ) and any records created or received by VALPONET may be subject to disclosure pursuant to the Act. IN WITNESS WHEREOF, the parties hereto have set their hands and affixed their respective seals the day and year first above written. VALPONET By: Title: 12

13 SUBSCRIBER: By: Title: Technical Point of Contact for Subscriber: Name: Cell phone: 13