HomeMy WebLinkAbout3 - Legal Review Submission_ City of Bremerton - Master Services Agreement - 12-03-2021.docx
MASTER SERVICES AGREEMENT FOR ENTERPRISE SERVICES – GOVERNMENTAL CUSTOMER pg. 1
Wave Business Solutions, LLC / City of Bremerton 12/03/2021
MASTER SERVICES AGREEMENT FOR ENTERPRISE SERVICES – GOVERNMENTAL CUSTOMER
This Master Services Agreement for Enterprise Services – Governmental Customer (this “MSA”) is entered into as of this
3rd day of December, 2021 (the “Effective Date”), by and between WAVE BUSINESS SOLUTIONS, LLC, a Washington limited
liability company, on behalf of itself and its Affiliates (collectively, “Provider”), and the CITY OF BREMERTON (“Customer”). For
purposes of this MSA, the term “Affiliate” shall mean any other person which directly, or indirectly through one or more
intermediaries, controls, or is controlled by, or is under common control with, the first person or any of its subsidiaries. Each of
Provider and Customer may be referred to in this MSA as a “Party” and together as the “Parties.”
ARTICLE 1 – STRUCTURE OF AGREEMENT
1.1 Purpose of MSA. Provider and its Affiliates provide various facilities-based telecommunications services, including
Ethernet transport, dedicated internet access, phone over fiber, dark fiber, and related services (as applicable, the “Services”).
This MSA is neither an agreement to purchase nor a commitment to provide Services. The purpose of this MSA is to provide the
general terms, conditions and framework within which Customer and its Affiliates may from time to time purchase Services from
Provider and its Affiliates, pursuant to one or more “Service Orders,” as described in Section 1.2 below.
1.2 Service Orders. The purchase of Services shall be accomplished only through the negotiation and mutual execution and
delivery of a Service Order memorializing the terms and conditions pursuant to which Provider shall provide the desired Services
to Customer. Service Orders shall clearly specify the following: (i) the type of Service at issue (e.g., Internet access, data transport,
VoIP, dark fiber, etc.); (ii) the location(s) at which the Service is to be provided (each, a “Service Site”); (iii) the initial term of the
Service Order (the “Initial Service Term”); (iv) the pricing for the Service, including (a) the monthly recurring charges (“MRC”) for
the Service, and (b) any non-recurring charges (“NRC”) associated with installation of the Service; and (v) any other terms or
conditions specific to the particular Service Order. Each fully-executed Service Order shall be governed by and become part of this
MSA, and this MSA together with all fully-executed Service Orders shall be collectively referred to as the “Agreement.” Depending
on the location of the Service Site, in some instances Services may be provided by an Affiliate of Provider.
1.3 Additional Documents Comprising Agreement; Order of Precedence. If one or more Service Level Agreements are
attached to this MSA as Exhibits (the “SLA”), the SLA constitutes a part of this MSA. Customer’s use of any Services purchased
pursuant to the Agreement will also be governed by Provider’s Acceptable Use Policy for Commercial Services (the “AUP”) which
is posted on Provider’s website at http://wavebusiness.com/commercial-AUP. Additional provisions that are applicable only to
specific types of Services are contained in Provider’s Service-Specific Terms and Conditions (the “Service-Specific T&Cs”) which is
posted on Provider’s website at http://wavebusiness.com/serviceterms. In the event of a conflict between the provisions of any
of the foregoing documents, the documents shall have the following order of precedence unless expressly stated otherwise in a
particular Service Order: (i) this MSA (including the SLA); (ii) the applicable Service Order; (iii) the AUP; and (iv) the Service-Specific
T&Cs.
ARTICLE 2 – TERM AND RENEWAL
2.1 Term of MSA. The term of this MSA (the “MSA Term”) shall be for five (5) years, commencing on the Effective Date and
expiring on the date that is one day prior to the fifth (5th) anniversary of the Effective Date. Notwithstanding the foregoing, so long
as any one or more Service Orders entered into pursuant to this MSA remain in effect, this MSA shall not terminate with respect
to said Service Orders but shall continue to govern same until the expiration or termination of said Service Orders.
2.2 Term of Service Orders. The Initial Service Term of each Service Order shall be as specified in the Service Order. Upon
expiration of the Initial Service Term of a Service Order, unless either Party terminates the Service Order by giving written notice
of termination to the other Party not less than thirty (30) days prior to the end of the Initial Service Term, the Service Order will
automatically renew for successive periods of one (1) year (each, a “Renewal Term”). During any Renewal Term for a Service
Order, either Party may terminate the Service Order at the end of the then-current Renewal Term by giving written notice of
termination to the other Party not less than thirty (30) days prior to the end of the then-current Renewal Term. The total period
of time a Service Order is in effect is referred to as the “Service Term” for the Service Order at issue.
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MASTER SERVICES AGREEMENT FOR ENTERPRISE SERVICES – GOVERNMENTAL CUSTOMER pg. 2
Wave Business Solutions, LLC / City of Bremerton 12/03/2021
ARTICLE 3 – INSTALLATION, TESTING, ACCEPTANCE AND USE
3.1 Service Site; Demarcation Points; Equipment. Unless a Service Site is within Provider’s control, Customer shall provide
Provider with access to the Service Site as and to the extent reasonably necessary for Provider to install, test, inspect and maintain
the Service(s) ordered during the Service Term. Unless otherwise stated in a Service Order: (i) Provider shall be solely responsible
for the provision, operation and maintenance of all equipment and facilities (the “Provider Equipment”) necessary to connect
Provider’s network facilities to the Customer demarcation point(s) at the Service Site (the “Demarcation Point(s)”); and
(ii) Customer shall be solely responsible for the provision, operation and maintenance of all equipment and facilities (the
“Customer Equipment”) from the Demarcation Point(s) to Customer’s internal network. Unless a Service Site is within Provider’s
control, Customer shall be responsible for maintaining appropriate conditions at the Service Site, including HVAC, electrical power,
and security. Title to the Provider Equipment shall at all times remain vested in Provider. Customer shall not re-arrange,
disconnect, tamper with, attempt to repair, or otherwise interfere with the Provider Equipment, nor shall Customer permit any
third party to do so.
3.2 Testing, Acceptance and Service Commencement Date. Provider shall use commercially reasonable efforts to install the
Services consistent with Provider’s usual and customary installation timeline, and shall endeavor to keep Customer regularly
informed regarding installation progress. Provider shall notify Customer when a Service has been installed and is ready for testing
and use. Customer may, at Customer’s option, participate in Provider’s final testing of the Service. For Services having a committed
bandwidth, the committed information rate shall be measured at the Ethernet layer and includes the Ethernet frame itself. The
Initial Service Term for the Service at issue shall commence on the date on which the Service has been installed, tested and is active
and available for use by Customer (the “Service Commencement Date”). Customer shall have a period of five (5) business days
after the Service Commencement Date in which Customer may notify Provider that the Service at issue is not functioning properly.
If Customer notifies Provider of problems with a Service pursuant to this Section 3.2, Provider shall investigate and correct same
and the Service Commencement Date shall be revised to be the first calendar day after the date on which Provider has corrected
the problems. Unless Customer delivers notification of problems to Provider within the time period set forth above, Customer
shall be deemed to have accepted the Service at issue and to have confirmed that the Service has been installed and is functioning
properly as of the Service Commencement Date.
3.3 No Sub-Licensing; Non-Compete. Any Services provided to Customer pursuant to the Agreement are for the sole benefit
of Customer. Customer shall not grant to any third party the right to use any of the Services, regardless of whether such grant
were to take the form of a license, sublicense, lease, sublease, or any other form. Nor shall Customer use the Services for
commercial purposes that are competitive with Provider’s business (e.g., use the Services to sell Internet access services, point-to-
point data transport services, VoIP services, etc., to third parties within Provider’s service area).
ARTICLE 4 – PAYMENT AND BILLING
4.1 Invoicing. All amounts owed by Customer to Provider under the Agreement shall be collectively referred to as “Fees.”
Provider shall begin billing Customer for the MRC applicable to a Service as of the Service Commencement Date. Invoices shall be
delivered monthly, and shall be paid by Customer within thirty (30) days of receipt. Fixed Fees shall be billed in advance and
usage-based Fees shall be billed in arrears. Fixed fees for any partial month shall be pro-rated. For Services having an NRC, unless
otherwise stated in the Service Order, Provider shall invoice Customer for the NRC upon full-execution of the Service Order. Except
for amounts disputed in good faith by Customer pursuant to Section 4.2 below, past due amounts shall bear interest in the amount
of 1.5% per month, or the highest amount allowed by law, whichever is lower.
4.2 Disputed Invoices. If Customer in good faith disputes any portion of a Provider invoice, Customer shall pay the undisputed
portion of the invoice and submit written notice to Provider regarding the disputed amount, which notice shall include
documentation supporting the alleged billing error (each such notice, a “Fee Dispute Notice”). A Fee Dispute Notice must be
submitted to Provider within thirty (30) days from the date the invoice at issue is received by Customer. Customer waives the right
to dispute any Fees not disputed within such thirty (30) day period. The Parties shall negotiate in good faith to attempt to resolve
any such disputes within sixty (60) days after Customer’s delivery of the applicable Fee Dispute Notice. Fee disputes unresolved
within that time period shall be resolved by the mediation and arbitration procedures set forth in Sections 11.2 and 11.3 below.
4.3 Applicable Taxes. All charges for Services set forth in Service Orders are exclusive of Applicable Taxes (as defined
below). Except for taxes based on Provider’s net income or taxes for which Customer possesses a valid exemption certificate,
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MASTER SERVICES AGREEMENT FOR ENTERPRISE SERVICES – GOVERNMENTAL CUSTOMER pg. 3
Wave Business Solutions, LLC / City of Bremerton 12/03/2021
Customer shall be responsible for payment of all applicable taxes and regulatory fees, however designated, that arise in any
jurisdiction, including, without limitation, value added, consumption, sales, use, gross receipts, excise, access, bypass, or other
taxes, fees, assessments, duties, charges or surcharges, that are imposed on, incident to, or based upon the provision, sale, or use
of the Service(s) (collectively “Applicable Taxes”). The Applicable Taxes will be individually identified on invoices. If Customer is
entitled to an exemption from any Applicable Taxes, Customer is responsible for presenting Provider with a valid exemption
certificate (in a form reasonably acceptable to Provider). Provider will give prospective effect to any valid exemption certificate
provided in accordance with the preceding sentence.
ARTICLE 5 – DEFAULT AND REMEDIES
5.1 Customer Default. Each of the following shall constitute a default by Customer under the Agreement (each a separate
event of “Default”): (i) if Customer fails to pay any undisputed Fees when due, the failure of Customer to cure same within ten
(10) days after receiving written notice from Provider regarding such failure to pay; (ii) if Customer fails to comply with any other
material provision of the Agreement, the failure of Customer to cure same within thirty (30) days of receiving written notice from
Provider regarding such non-compliance; or (iii) if Customer files or initiates proceedings, or has proceedings initiated against it,
seeking liquidation, reorganization or other relief (such as the appointment of a trustee, receiver, liquidator, custodian or other
such official) under any bankruptcy, insolvency or other similar law, and the same is not dismissed within sixty (60) days.
5.2 Remedies for Customer Default. In the event of a Default by Customer under the Agreement, Provider may, at its option:
(i) suspend any applicable Services until such time as the Customer Default has been corrected (provided, however, that any
suspension shall not relieve Customer’s on-going obligation to pay Provider all Fees and other amounts due under the Agreement
as if such suspension of Services had not taken place); (ii) terminate the applicable Service(s) and/or the applicable Service
Order(s); (iii) after the occurrence of any two Customer Defaults in any twelve (12) month period, terminate all Service Orders
entered into with Customer; and/or (iv) pursue any other remedy available to Provider under the Agreement or applicable law. In
the event of early termination for Customer Default pursuant to this Section 5.2, Customer shall pay to Provider the Termination
Charge described in Section 6.3 below.
5.3 Provider Default. Each of the following shall constitute a Default by Provider under the Agreement: (i) if Provider fails to
comply with any material provision of the Agreement other than provisions of the SLA, the failure by Provider to cure same within
thirty (30) days of receiving written notice from Customer regarding such non-compliance; or (ii) Provider files or initiates
proceedings, or has proceedings initiated against it, seeking liquidation, reorganization or other relief (such as the appointment of
a trustee, receiver, liquidator, custodian or other such official) under any bankruptcy, insolvency or other similar law, and the same
is not dismissed within sixty (60) days.
5.4 Remedies for Provider Default. In the event of a Default by Provider under the Agreement Customer may, at its option:
(i) terminate the applicable Service(s) and/or the applicable Service Order(s); and/or (ii) pursue any other remedy available to
Customer under the Agreement or applicable law. Early termination by Customer shall be accomplished by providing termination
notice to Customer’s account manager and to the notice address specified in Article 13 below. In the event of early termination
for Provider Default pursuant to this Section 5.4, Provider shall reimburse Customer for any pre-paid, unused monthly service Fees
attributable to the terminated Service(s) and/or Service Order(s), and Customer shall have no further liability to Provider for the
terminated Service(s) and/or Service Order(s). Early termination by Customer pursuant to this Section 5.4 shall not relieve
Customer of its obligations to pay all Fees incurred prior to the early termination date.
ARTICLE 6 – EARLY TERMINATION & PORTABILITY
6.1 Early Termination for Non-Appropriation. Customer is a public entity subject to legislative appropriation requirements.
As a general matter, Customer cannot legally be obligated to make payments for Services that are provided after the end of the
fiscal period in which Customer executes a particular Service Order. In the event that, for any future fiscal period, sufficient funds
are not appropriated or allocated for payment of any one or more Service Orders, Customer may terminate the Service Order at
issue as a matter of public convenience as provided herein without incurring a Termination Charge or any other early termination
fee. If and when Customer becomes aware that non-allocation of funds for the coming fiscal period appears likely, Customer shall
use reasonable efforts to notify Provider of that possibility prior to the end of the then-current fiscal period. Once the non-
appropriation decision has been made, Customer shall, as soon as reasonably practicable, deliver written notice of termination for
non-appropriation to Provider specifying which Service or Services and/or which Service Order or Service Orders are being
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terminated for non-appropriation and the date on which such early termination shall occur. Customer shall remain obligated to
pay for all Services delivered through the date of termination.
6.2 Early Termination for Customer Convenience. Customer may, at any time after executing a Service Order, discontinue
one or more of the Services ordered and/or terminate the Service Order by giving at least thirty (30) days’ advance written
notice to Customer’s account manager and to the notice address specified in Article 13 below. Any early termination of a Service
pursuant to this Section 6.2 shall be referred to as “Termination for Customer Convenience.” In the event of Termination for
Customer Convenience, Customer shall pay to Provider the Termination Charge described in Section 6.4 below.
6.3 Early Termination for Default. In accordance with Article 5 above, either Party may elect to terminate this MSA and/or
one or more Service Orders prior to the scheduled Expiration Date in the event of an uncured Default by the other Party.
6.4 Termination Charge. In the event of Termination for Customer Convenience pursuant to Section 6.2 above, or
termination for Customer Default pursuant to Section 5.2 above, Customer shall pay a Termination Charge to Provider. The
“Termination Charge” shall equal the sum of the following: (i) all unpaid amounts for Services actually provided prior to the
termination date; (ii) any portion of the NRC for the terminated Service(s) that has not yet been paid to Provider; (iii) with respect
to off-net Services only, any documented cancellation or termination charges or fees imposed on Provider by any third party in
connection with the early termination of the Services; and (iv) one hundred percent (100%) of all remaining MRCs Customer was
to pay Provider for the Service during the remainder of the applicable Service Term. If incurred, the Termination Charge will be
due and payable by Customer within thirty (30) days after the termination date of the Service at issue. Customer acknowledges
that the calculation of the Termination Charge is a genuine estimate of Provider’s actual damages and is not a penalty.
6.5 Portability; Substitution of Services. At any time during the Service Term of a Service Order, Customer may elect to
substitute new Services for then-existing Services. In such event, Provider will waive the Termination Charge associated with
the termination of the then-existing Services as long as: (i) the Fees payable to Provider in connection with the substitute
Services are equal to or greater than the Fees of the discontinued Services; (ii) Customer commits to retain the substitute Services
for a period equal to or greater than the remainder of the Service Term for the discontinued Services; (iii) Customer pays all
applicable installation and other NRCs, if any, for provision of the substitute Services; and (iv) Customer reimburses Provider
for all reasonable and documented engineering, installation and construction costs associated with the discontinued Services,
calculated on a time and materials basis, that have not already been recovered by Provider by the time of the substitution.
ARTICLE 7 – CONFIDENTIAL INFORMATION
7.1 Definition of Confidential Information. “Confidential Information” shall mean all information, including the Agreement,
regarding the telecommunications needs of Customer and the Services that Provider offers under the Agreement which is disclosed
by one Party (“Disclosing Party”) to the other Party (“Receiving Party”), to the extent that such information is marked or identified
as confidential or proprietary or would be reasonably deemed confidential or proprietary given the circumstances surrounding its
disclosure. All written or oral pricing and contract proposals, as well as network maps or diagrams exchanged between the Parties
shall be deemed Confidential Information, whether or not so designated. The fact that Customer is a customer of Provider shall
not be deemed Confidential Information and may be freely disclosed by either Party. Information shall not be deemed Confidential
Information if (i) it is independently developed by or for the Receiving Party, (ii) it is lawfully received by the Receiving Party free
of any obligation to keep it confidential, (iii) it becomes generally available to the public other than by breach of the Agreement,
or (iv) it was known to the Receiving Party prior to the Disclosing Party’s disclosure of same.
7.2 Obligations Regarding Confidential Information. Confidential Information is the property of the Disclosing Party and shall
be returned to the Disclosing Party upon request. The Receiving Party shall hold all Confidential Information in confidence. The
Receiving Party: (i) shall use such Confidential Information only for the purposes of performing its obligations and/or enforcing its
rights under the Agreement; (ii) shall reproduce such Confidential Information only to the extent necessary for such purposes;
(iii) shall restrict disclosure of such Confidential Information to employees, contractors, advisors or consultants that have a need
to know for such purposes (with disclosure to contractors, advisors and consultants being limited to contractors, advisors and
consultants that have signed a non-disclosure agreement to protect the Confidential Information of third parties); (iv) shall not
disclose Confidential Information to any third party without prior written approval of the Disclosing Party except as expressly
provided in the Agreement or as required by law, by court order, by administrative order of an agency having jurisdiction, or in the
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enforcement of its rights under the Agreement; and (v) shall use at least the same degree of care (in no event less than reasonable
care) as it uses with regard to its own proprietary or confidential information to prevent the disclosure, unauthorized use or
publication of Confidential Information. In the event a Receiving Party is required to disclose Confidential Information of the
Disclosing Party pursuant to law, court order or administrative order of an agency having jurisdiction, the Receiving Party will, if
such notice is permitted by law, notify the Disclosing Party of the required disclosure with sufficient time for the Disclosing Party
to seek judicial relief from the required disclosure, and reasonably cooperate with the Disclosing Party in any efforts the Disclosing
Party may take to obtain protective measures in respect to the required disclosure. The Parties agree that breach of this Article 7
may cause irreparable injury for which monetary damages are not an adequate remedy; accordingly, each Party may seek
injunctive relief and any other available equitable remedies to enforce the provisions of this Article 7.
7.3 Public Records Act. Notwithstanding anything to the contrary contained elsewhere in this Article 7, the Parties
understand and acknowledge that Customer is a governmental entity, and that Washington law limits the ability of Customer to
shield from public disclosure any information given to Customer. Accordingly, the Parties agree to work together to avoid
disclosures to Customer by Provider of confidential information which would result in economic loss or damage to Provider if such
information were to be disclosed to third persons by Customer pursuant to a request submitted under the Public Records Act,
chapter 42.56 RCW, or other similar public disclosure law. In the event that Customer receives a request pursuant to the Public
Records Act (or other similar law) to disclose information identified by Provider in writing as confidential, Customer’s sole
obligations to Provider shall be: (i) to promptly notify Provider; and (ii) to refrain from disclosing such records for a period of up
to ten (10) business days to allow Provider an opportunity to seek legal protection against disclosure from a court of competent
jurisdiction. Customer will not be required to withhold requested records beyond the ten (10) business days unless it may do so
based on good faith reliance upon an exception to disclosure under the Public Records Act, or unless Customer is ordered to
withhold disclosure by the order of a court having competent jurisdiction. Customer may, but shall not be required, to join in any
legal proceedings relating to the requested disclosure unless required to do so by the court. In the event that Provider initiates
legal proceedings, or Customer initiates legal proceedings or withholds requested records at Provider’s request, Provider shall
indemnify and hold Customer harmless from and against all costs, attorneys’ fees, expenses, liabilities, damages or other liabilities
Customer may incur due to the legal proceedings initiated at and/or Customer’s withholding of records at Provider’s request.
Customer shall not be liable to Provider for any loss, cost or expense relating to the disclosure of requested records if Provider fails
to obtain legal protection against disclosure and Customer releases the records in good faith.
ARTICLE 8 – LIMITATION OF LIABILITY
8.1 General Limitations. Provider shall not be liable for any loss or damage occasioned by a Force Majeure Event. Except as
expressly provided to the contrary elsewhere in the Agreement, Provider’s aggregate liability for any and all causes and claims
arising under the Agreement, whether based in contract, tort, warranty or otherwise shall be limited to the lesser of: (i) the actual
direct damages sustained by Customer; or (ii) an amount equivalent to the total MRC received by Provider from Customer for the
Service(s) at issue during the preceding twelve (12) month period.
8.2 Service Level Agreement. Should Provider fail, on any one or more occasions, to deliver any one or more Services to
Customer in accordance with all of the terms and conditions contained in the applicable SLA, Customer’s sole and exclusive remedy
for such failure shall be as set forth in the SLA. No such failure shall be considered a Default by Provider under the Agreement.
8.3 No Special Damages. EXCEPT FOR (i) EACH PARTY’S CONFIDENTIALITY OBLIGATIONS UNDER ARTICLE 7 ABOVE, (ii) EACH
PARTY’S THIRD-PARTY INDEMNIFICATION OBLIGATIONS UNDER ARTICLE 9 BELOW, AND (iii) CLAIMS ARISING FROM A PARTY’S
INTENTIONAL MISCONDUCT, IN NO EVENT SHALL EITHER PARTY BE LIABLE TO THE OTHER PARTY FOR ANY INDIRECT, INCIDENTAL,
SPECIAL, CONSEQUENTIAL, EXEMPLARY OR PUNITIVE DAMAGES WHATSOEVER, ARISING OUT OF OR INCURRED IN CONNECTION
WITH A PARTY’S PERFORMANCE OR FAILURE TO PERFORM UNDER THIS AGREEMENT, INCLUDING, BY WAY OF EXAMPLE AND NOT
BY WAY OF LIMITATION, LOST PROFITS, LOST REVENUE, LOSS OF GOODWILL, LOSS OF ANTICIPATED SAVINGS, LOSS OF BUSINESS
OPPORTUNITY, LOSS OF DATA OR COST OF PURCHASING REPLACEMENT SERVICES, EVEN IF THE OTHER PARTY HAD BEEN ADVISED,
KNEW OR SHOULD HAVE KNOWN OF THE POSSIBILITY OF SUCH SPECIAL DAMAGES.
8.4 Disclaimer of Warranties. EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT, PROVIDER MAKES NO WARRANTIES OR
REPRESENTATIONS, EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, EITHER IN FACT OR BY OPERATION OF LAW, AS TO THE
DESCRIPTION, QUALITY, MERCHANTABILITY, COMPLETENESS, FITNESS FOR A PARTICULAR PURPOSE OR USE OF ANY SERVICES
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PROVIDED PURSUANT TO THIS AGREEMENT.
8.5 Assumption of Risk. PROVIDER HAS NO CONTROL OVER AND EXPRESSLY DISCLAIMS ANY LIABILITY OR RESPONSIBILITY
WHATSOEVER FOR THE CONTENT OF ANY INFORMATION TRANSMITTED OR RECEIVED BY CUSTOMER THROUGH THE SERVICES,
SERVICE INTERRUPTIONS ATTRIBUTABLE TO CUSTOMER’S NETWORK, ANY CUSTOMER EQUIPMENT FAILURES, OR ANY OTHER
SUCH CAUSES, AND CUSTOMER USES THE SERVICES AT CUSTOMER’S OWN RISK. CUSTOMER SHALL BE RESPONSIBLE FOR THE
SECURITY, CONFIDENTIALITY AND INTEGRITY OF INFORMATION CUSTOMER TRANSMITS OR RECEIVES USING ANY SERVICES.
8.6 Disclaimer Regarding HIPAA Compliance. If and to the extent Customer is a covered entity under the Health Insurance
Portability and Accountability Act of 1996 (“HIPAA”), and needs its business associates to comply with HIPAA, Provider hereby
notifies Customer that Provider’s operations are not compliant with HIPAA. Provider’s operations are generally exempt from
HIPAA pursuant to the conduit exception. However, if and to the extent the Services provided pursuant to any Service Order would
not qualify for the conduit exception, Provider’s operations with respect to the Services are not HIPAA complaint. Provider will
not execute a business associate agreement under HIPAA.
ARTICLE 9 –INDEMNIFICATION FOR THIRD PARTY CLAIMS
9.1 Indemnification by Customer. Customer shall indemnify, defend and hold Provider and its members, managers, officers,
agents and employees (collectively, the “Provider Indemnified Parties”) harmless from and against any and all claims, lawsuits
or damages asserted against the Provider Indemnified Parties by any third-party to the extent the same arise out of or are due to:
(i) Customer’s negligence or willful misconduct in exercising its rights or performing its obligations under the Agreement;
(ii) Customer’s noncompliance with or Default under the Agreement; and/or (iii) Customer’s failure to comply with applicable
law in connection with its performance under the Agreement.
9.2 Indemnification by Provider. Provider shall indemnify, defend and hold Customer and its members, managers, officers,
agents and employees (collectively, the “Customer Indemnified Parties") harmless from and against any and all claims, lawsuits
or damages asserted against the Customer Indemnified Parties by any third-party to the extent the same arise out of or are due
to: (i) Provider’s negligence or willful misconduct in exercising its rights and performing its obligations under the Agreement;
(ii) Provider’s noncompliance with or Default under the Agreement; and/or (iii) Provider’s failure to comply with applicable law in
connection with its performance under the Agreement.
9.3 Indemnification Procedures for Third-Party Claims. Should any third-party claim arise under this Article 9, the indemnified
Party shall promptly notify the indemnifying Party of same in writing, and shall take such action as may be necessary to avoid
default or other adverse consequences in connection with such claim. The indemnifying Party shall have the right to select counsel
and to control the defense and settlement of such claim; provided, however, that the indemnified Party shall be entitled to
participate in the defense of such claim and to employ counsel at its own expense to assist in handling the claim, and provided
further, that the indemnifying party shall not take any action in defense or settlement of the claim that would negatively impact
the indemnified Party without the consent of the indemnified Party. The indemnified Party shall reasonably cooperate with the
indemnifying Party in the defense of the third-party claim, including making its files and personnel reasonably available to the
indemnifying Party, all at the cost and expense of the indemnifying Party.
ARTICLE 10 – FORCE MAJEURE EVENTS
Neither Party shall be liable for any delay in or failure of performance hereunder (other than Customer’s payment
obligations under Article 4) due to causes beyond such Party’s reasonable control including, but not limited to, acts of God, fire,
flood, earthquake, ice storms, wind storms, or other sever weather events, explosion, vandalism, cable cut, terrorist acts,
insurrection, riots or other civil unrest, national or regional emergency, unavailability of rights-of-way, a governmental authority’s
failure to timely act, inability to obtain equipment, material or other supplies due to strike, lockout or work stoppage, or any law,
order, regulation, direction, action or request of any civil or military governmental authority (each, a “Force Majeure Event”). If
any Force Majeure Event causes an increase in the time required for performance of any of its duties or obligations, the affected
Party shall be entitled to an equitable extension of time for completion. If the delay in performance caused by the Force Majeure
Event exceeds thirty (30) days, either Party may terminate the Agreement or the applicable Service Order(s) immediately on
written notice to the other Party, without incurring any liability in connection with such termination.
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ARTICLE 11 – DISPUTE RESOLUTION
11.1 Good Faith Negotiations. Except for actions seeking a temporary restraining order or injunction, in the event any
controversy, disagreement or dispute (each, a “Dispute”) arises between the Parties in connection with this Agreement, the
Parties shall use good faith efforts to resolve the Dispute through negotiation. In the event of a Dispute, either Party may give the
other Party written notice of the Dispute (each, a “Dispute Notice”). The parties will meet and attempt to resolve the Dispute
within sixty (60) days of the date on which the Dispute Notice is delivered. All discussions occurring and documents exchanged
during negotiations under this Section are confidential and inadmissible for any purpose in any legal proceeding involving the
Parties; provided that evidence that is otherwise admissible or discoverable shall not be rendered inadmissible or non-discoverable
as a result of its use in the negotiation process. If the Parties do not resolve the Dispute within the sixty (60) day period, either of
the Parties may pursue any remedy available to it under this Agreement, at law or in equity.
11.2 Governing Law. This Agreement and all matters arising out of this Agreement shall be governed by the laws of the State
of Washington. Any judicial action arising in connection with this Agreement shall be in the Superior Court of the State of
Washington in and for King County, or in the Federal District Court for the Western District of Washington, as applicable.
ARTICLE 12 – ASSIGNMENT AND ASSUMPTION
Except as otherwise provided in this Article 12, neither Party shall assign, delegate or otherwise transfer the Agreement
or its obligations under the Agreement, in whole or in part, without the prior written consent of the other Party. Notwithstanding
the foregoing, either Party may, without the necessity of obtaining the other Party’s consent, assign its interest in and to the
Agreement to: (i) any entity acquiring such Party, whether by merger or through purchase of substantially all the assets of such
Party; (ii) a lender as an asset securing indebtedness; or (iii) an Affiliate of such party; provided, that in the event of a transfer to
an Affiliate, the transferring Party shall continue to remain liable for the obligations under the Agreement.
ARTICLE 13 – NOTICES
Unless otherwise provided elsewhere in the Agreement, any notice to be given to either Party under the Agreement will
be in writing and directed to the addresses set forth below. Notices will be deemed received (i) the next business day, when
sent by reliable, commercial overnight courier; (ii) three (3) business days after being sent by certified mail, postage prepaid
and return receipt requested; (iii) when actually received, if sent by email during the business hours of 9:00 a.m. to 5:00 p.m.
(recipient’s time). Notices received after 5:00 p.m. (recipient’s time) will be effective the next business day.
If to Provider:
Wave Business Solutions, LLC
3700 Monte Villa Parkway
Bothell, WA 98021
ATTN: Business Solutions
If to Customer:
City of Bremerton
1600 Oyster Bay Avenue S.
Bremerton, WA 98312
With a Copy to:
Wave Business Solutions, LLC
650 College Road East, Suite 3100
Princeton, NJ 08540
ATTN: Legal Department
With a Copy to:
Either Party may change its notice address by giving notice to the other Party in accordance with this Article.
ARTICLE 14 – REPRESENTATIONS AND COVENANTS
Each Party represents and covenants to the other as follows: (i) the execution and delivery of the Agreement and the
performance of its obligations hereunder have been duly authorized; (ii) the Agreement is a valid and legal agreement binding
on such parties and enforceable in accordance with its terms; (iii) to the best of its knowledge and belief, it is in material compliance
with all laws, rules and regulations and court and governmental orders related to the operation of its business; and (iv) it shall
comply with all applicable laws and regulations when exercising its rights and performing its obligations under the Agreement.
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MASTER SERVICES AGREEMENT FOR ENTERPRISE SERVICES – GOVERNMENTAL CUSTOMER pg. 8
Wave Business Solutions, LLC / City of Bremerton 12/03/2021
ARTICLE 15 – MISCELLANEOUS
15.1 Entire Agreement; Interpretation. The Agreement constitutes the entire agreement between the Parties regarding the
subject matter hereof, and supersedes any and all prior oral or written agreements between the Parties regarding the subject
matter contained herein. The Agreement may only be modified or supplemented by an instrument executed by an authorized
representative of each Party. The Agreement and each of the terms and provisions of it are deemed to have been explicitly
negotiated by the Parties, and the language in all parts of the Agreement shall, in all cases, be construed according to its fair
meaning and not strictly for or against either of the Parties. If any provision of the Agreement or the application thereof to any
person or circumstance shall, for any reason and to any extent, be found invalid or unenforceable, the remainder of the Agreement
and the application of that provision to other persons or circumstances shall not be affected thereby, but shall instead continue in
full force and effect.
15.2 No Waiver. No failure by either Party to enforce any rights hereunder will constitute a waiver of such rights. Nor
shall a waiver by either Party of any particular breach or default constitute a waiver of any other breach or default or any similar
future breach or default. Provider’s acceptance of any payment under the Agreement will not constitute an accord or any other
form of acknowledgement or satisfaction that the amount paid is in fact the correct amount, and acceptance of a payment will
not release any claim by Provider for additional amounts due from Customer.
15.3 Attorneys’ Fees. If any proceeding is brought by a Party to enforce or interpret any term or provision of the Agreement,
the substantially prevailing Party in such proceeding will be entitled to recover, in addition to all other relief as set forth in the
Agreement, that Party’s reasonable attorneys’ and experts’ fees and expenses.
15.4 Relationship; No Third Party Beneficiaries. The Agreement is a commercial contract between Provider and Customer
and the relationship between the Parties is that of independent contractors. Nothing in the Agreement creates any partnership,
principal- agent, employer-employee or joint venture relationship between the Parties or any of their Affiliates, agents or
employees for any purpose. The Agreement is for the sole benefit of Provider and Customer and is not intended to confer any
rights on any other person; there are no third party beneficiaries of the Agreement.
15.5 Exhibits. The following Exhibits, which are attached to this MSA, are incorporated herein and by this reference made a
part of this MSA:
EXHIBIT A - Service Level Agreement for Lit Fiber Services
EXHIBIT B - Service Level Agreement for Dark Fiber & Wavelength Services
15.6 Computation of Time. Except where expressly provided to the contrary, as used in the Agreement, the word “day” shall
mean “calendar day,” and the computation of time shall include all Saturdays, Sundays and holidays for purposes of determining
time periods specified in the Agreement. If the final date of any period of time set out in any provision of the Agreement falls upon
a Saturday or a Sunday or a legal holiday, then in such event, the time of such period shall be extended to the next day that is not
a Saturday, Sunday or legal holiday. As used in the Agreement, the term “business day” shall mean a day that is not a Saturday,
Sunday or a legal holiday.
15.7 Counterparts; Electronic Signatures. Any Service Order entered into by the Parties pursuant to this MSA may be executed
in multiple counterparts, each of which shall constitute an original, and all of which shall constitute one and the same
instrument. Any executed documents sent to the other Party in portable document format (pdf) images via email will be
considered the same as an original document. The Parties consent to the use of electronic signatures.
[Signatures on following page.]
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MASTER SERVICES AGREEMENT FOR ENTERPRISE SERVICES – GOVERNMENTAL CUSTOMER pg. 9
Wave Business Solutions, LLC / City of Bremerton 12/03/2021
The Parties are signing this MSA as of the Effective Date set forth in the preamble above.
CUSTOMER:
City of Bremerton
By
Name:
Title:
PROVIDER:
Wave Business Solutions, LLC, a Washington
limited liability company
By
Name:
Title:
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DocuSign Envelope ID: BA746CA7-B796-42D9-9BF5-44AFE8EEF3C6
VP Business Solutions
David Lampkin
DocuSign Envelope ID: 6E47CF03-48DC-4B3E-80D5-826DDC69919C
Greg Wheeler
Mayor
EXHIBIT A: SERVICE LEVEL AGREEMENT FOR LIT FIBER SERVICES pg. 10
Wave Business Solutions, LLC 01/22/2021
EXHIBIT A
to
Master Services Agreement for Enterprise Services – Governmental Customer
Service Level Agreement for Lit Fiber Services
This Service Level Agreement for Lit Fiber Services (this “SLA”) is a part of the Master Services Agreement for Enterprise Services –
Governmental Customer (“MSA”) between Wave Business Solutions, LLC (“WAVE”) and Customer. Unless otherwise provided in
the applicable Service Order, this SLA applies to the following types of lit fiber Services provided by WAVE pursuant to the MSA:
(a) dedicated Internet access services, (b) Ethernet transport services, and (c) voice services, including hosted voice.
1. AVAILABILITY SLA
WAVE’s Network is designed to provide a target Availability of at least 99.99% per month. If the Availability target is not achieved
in a given calendar month, Customer shall be entitled to the remedies set forth in the table below, which must be claimed as
described in this SLA.
Target Availability Duration of Service Outage Customer Credit as % of MRC for
the applicable Circuit*
99.99% Availability
Less than 4 minutes 20 seconds Target Met
4 min. 20 sec. up to 2 hours 5%
> 2 hour up to 6 hours 10%
> 6 hours up to 12 hours 20%
> 12 hours up to 24 hours 35%
> 24 hours 50%
*Customer credits for Unavailability are calculated on an individual circuit basis, and the amount of any credit
is based on the portion of MRC allocable to the affected circuit.
2. MEAN TIME TO RESTORE (“MTTR”) SLA
In the event of Outages in Services due to failure or malfunction of the WAVE Network or WAVE Equipment, WAVE’s CNOC is
designed to provide a MTTR of 6 hours or less. If the target MTTR is not met for a particular circuit in a given calendar month, and
Customer receives a Service from WAVE on the circuit at issue, then Customer shall be entitled to remedies set forth in the table
below, which must be claimed as described in this SLA.
Target MTTR Actual MTTR
Customer Credit
as % of MRC for the
applicable Circuit
6 hr MTTR
≤ 6 Hrs. Target Met
> 6 Hrs. to 10 Hrs. 5%
> 10 Hrs. to 18 Hrs. 10%
> 18 Hrs. 20%
3. PACKET DELIVERY/PACKET LOSS SLA
The WAVE Network is designed to provide no greater than 0.1% Packet Loss. If the Packet Loss target is not achieved in a given
calendar month, Customer shall be entitled to the remedies set forth in the table below, which must be claimed as described in
this SLA. Customer credits for average monthly Packet Loss are calculated on an individual circuit basis, and the amount of any
credit is based on the portion of MRC allocable to the affected circuit.
DocuSign Envelope ID: BA746CA7-B796-42D9-9BF5-44AFE8EEF3C6DocuSign Envelope ID: 6E47CF03-48DC-4B3E-80D5-826DDC69919C
EXHIBIT A: SERVICE LEVEL AGREEMENT FOR LIT FIBER SERVICES pg. 11
Wave Business Solutions, LLC 01/22/2021
Target Maximum
Packet Loss
Actual Packet Loss
(lower end – upper end)
Customer Credit
as % of MRC for the
applicable Circuit
≤ 0.1% Packet Loss
0% - 0.1% Target Met
> 0.1% - 0.4% 5%
> 0.4% - 0.7% 10%
> 0.7% - 1.0% 25%
> 1.0% 50%
4. LATENCY SLA
The WAVE Network is designed to provide a monthly average one-way Latency not to exceed the following:
• For “Local Market” distances of ≤ 75 miles = 10 ms
• For “Inter-Market” distances of between 76 – 750 miles = 20 ms
• For “Long-Haul” distances of > 750 miles = 50 ms
If the applicable Latency target is not achieved in a given month and WAVE does not remedy the problem within fifteen (15)
calendar days from the date on which Customer opens a Trouble Ticket with the WAVE CNOC regarding excessive Latency,
Customer shall be entitled to the remedies set forth in the table below, which must be claimed as described in this SLA.
Target
Local Market
Latency
Target
Inter-Market
Latency
Target
Long-Haul
Latency
Actual One-Way
Latency
(lower end - upper end)
Customer Credit
as % of MRC for
the applicable
Circuit
10 ms or less 20 ms or less 50 ms or less
≤ Target Latency Target Met
> Target up to 8 ms over Target 5%
> 8 ms up to 15 ms over Target 10%
> 15 ms up to 20 ms over Target 25%
> 20 ms over Target 50%
5. NETWORK JITTER SLA
The WAVE Backbone Network is designed to have a monthly average one-way Network Jitter not to exceed the following:
• For Local Market distances of ≤ 75 miles = 2 ms
• For Inter-Market distances of between 76 – 750 miles = 5 ms
• For Long-Haul distances of > 750 miles = 15 ms
If the applicable Network Jitter target is exceeded in a given calendar month, Customer will be entitled to a credit of 1/30th of the
MRC of the affected circuit for that month for each full 1ms of Network Jitter above the Network Jitter target set forth above. Any
such credit must be claimed as described in this SLA.
6. CHRONIC OUTAGE
If Customer experiences a Chronic Outage with respect to a Service, Customer shall have the right to elect either of the following
remedies, which must be claimed as described in this SLA: (i) substitute a different Service or a different circuit/path for the Service
and circuit/path that experienced the Chronic Outage without incurring any Termination Charge or installation fees; or
(ii) terminate the affected Service for the circuit/path that experienced the Chronic Outage without incurring any Termination
Charge.
7. DEFINITIONS
For purposes of this SLA the following terms shall have the meanings set forth below.
“Availability” means the ability of Customer to exchange Ethernet packets with the WAVE Network via Customer’s router port.
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EXHIBIT A: SERVICE LEVEL AGREEMENT FOR LIT FIBER SERVICES pg. 12
Wave Business Solutions, LLC 01/22/2021
Availability is measured in minutes of uptime over the calendar month during which the Services are Available:
% Availability = (Total Minutes in Month – Total Minutes of Unavailability in Month)
(per calendar month) Total Minutes in Month
For Ethernet Transport Services and VoIP Services, Availability is calculated at the individual circuit level, between WAVE’s
Backbone Network and the Customer’s router port. For Dedicated Internet Access Services, Availability is calculated from the
Customer’s router port through the WAVE Network to the handoff point for the Internet. Dedicated Internet Access Service
Availability does not include the availability of the Internet itself or any particular Internet resource. Periods of Excused Outage
are not included in Availability metrics.
“Chronic Outage” means a series of three (3) or more Service Outages affecting the same Service on the same circuit during a given
calendar month, each of which has an actual time to restore “TTR” in excess of WAVE’s targeted MTTR.
“Emergency Maintenance” means WAVE’s efforts to correct conditions on the WAVE Network that are likely to cause a material
disruption to or outage in services provided by WAVE and which require immediate action. Emergency Maintenance may degrade
the quality of the Services provided to Customer, including possible outages. Any such outages are Excused Outages that will not
entitle Customer to credits under this SLA. WAVE may undertake Emergency Maintenance at any time WAVE deems necessary
and will provide Customer with notice of such Emergency Maintenance as soon as commercially practicable under the
circumstances.
“Excused Outage” means any disruption to or unavailability of Services caused by or due to (i) Scheduled Maintenance,
(ii) Emergency Maintenance, or (iii) circumstances beyond WAVE’s reasonable control, such as, by way of example only, Force
Majeure Events, acts or omissions of Customer or Customer’s agents, licensees or end users, electrical outages not caused by
WAVE, or any failure, unavailability, interruption or delay of third-party telecommunications network components the use of which
are reasonably necessary for WAVE’s delivery of the Services to Customer.
“Jitter” or “Network Jitter” refers to a variation in the interval at which packets are received, also described as the variability in
Latency as measured in the variability over time of the packet Latency across a network. Jitter is calculated as an aggregate average
monthly metric measured by WAVE across the WAVE Backbone Network between a sample of WAVE POPs. Local access loops are
not included. Periods of Excused Outage are not included in Jitter metrics.
“Latency” means how much time it takes, measured in milliseconds, for a packet of data to get from one designated point on
WAVE’s Network to another designated point on WAVE’s Network. Latency is calculated as an aggregate average monthly metric
measured by WAVE across the WAVE Backbone Network between a sample of WAVE POPs. Local access loops are not included.
Periods of Excused Outage are not included in Latency metrics.
“Mean Time to Restore” or “MTTR” means the average time required to restore the WAVE Network to a normally operating state
in the event of an Outage. MTTR is calculated on a circuit basis, as a monthly average of the time it takes WAVE to repair all Service
Outages on the specific circuit. MTTR is measured from the time an Outage related Trouble Ticket is generated by the WAVE CNOC
until the time the Service is again Available. The cumulative length of Service Outages per circuit is divided by the number of
Trouble Tickets in the billing month to derive the monthly MTTR per circuit:
MTTR in Hrs = Cumulative Length of Service Outages Per Month Per Circuit
(per calendar month) Total Number of Trouble Tickets for Service Outages Per Month Per Circuit
Periods of Excused Outage are not included in MTTR metrics.
“Outage” means a disruption in the Service making the Service completely unavailable to Customer that is not an Excused Outage.
For purposes of SLA-related credits and remedies, the period of unavailability begins when an Outage-related Trouble Ticket is
opened by the Customer and ends when the connection is restored, as measured by WAVE. Unavailability does not include periods
of Service degradation, such as slow data transmission.
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EXHIBIT A: SERVICE LEVEL AGREEMENT FOR LIT FIBER SERVICES pg. 13
Wave Business Solutions, LLC 01/22/2021
“Packet Loss” means the unintentional discarding of data packets in a network when a device (e.g., switch, router, etc.) is
overloaded and cannot accept any incoming data. Packet Loss is calculated as aggregate average monthly metric measured by
WAVE across the WAVE Backbone Network between a sample of WAVE POPs. Local access loops are not included. Periods of
Excused Outage are not included in Packet Loss metrics.
“Scheduled Maintenance” means any maintenance of the portion of the WAVE Network to which Customer’s router is connected
that is performed during a standard maintenance window (1:00AM – 6:00AM Local Time). Customer will be notified via email at
least forty-eight (48) hours in advance of any scheduled maintenance that is likely to affect Customer’s Service.
“Trouble Ticket” means a trouble ticket generated through the WAVE CNOC upon notification of a Service-related problem.
Trouble Tickets may be generated by WAVE pursuant to its internal network monitoring process, or by Customer’s reporting of a
problem to the WAVE CNOC. In order for Customer to be eligible for credits or remedies under this SLA, Customer must contact
the WAVE CNOC and open a Trouble Ticket regarding the problem; Trouble Tickets generated internally by WAVE will not provide
a basis for Customer credits or Chronic Outage remedies.
“WAVE Backbone Network” means WAVE’s core fiber backbone that connects WAVE’s POPs and regional hubs.
“WAVE’s Commercial Network Operations Center” or “WAVE’s CNOC” means WAVE’s commercial network operations center,
which is staffed 24x7x365 and can be reached at: 888-317-0488.
“WAVE Network” means all equipment, facilities and infrastructure that WAVE uses to provide Services to Customer, and includes
Customer’s access port. The “WAVE Network” does not include Customer owned or leased equipment (unless leased from WAVE),
or any portion of Customer’s local area network after the demarcation point for the Services provided by WAVE.
8. CLAIMING CREDITS AND REMEDIES
8.1 Requesting SLA Related Credits and Chronic Outage Remedies. To be eligible for any SLA-related Service credit
or Chronic Outage remedy, Customer must be current in its financial obligations to WAVE. Credits are exclusive of any applicable
taxes charged to Customer or collected by WAVE.
(i) To claim SLA-related Service credits, Customer must do the following:
(a) Open a Trouble Ticket with the WAVE CNOC within twenty-four (24) hours of the occurrence
giving rise to the claimed credit(s);
(b) Submit a written request for the credit(s) to Customer’s account manager within fifteen (15)
days after the end of the calendar month in which the incident giving rise to the credit(s)
occurred; and
(c) Provide the following documentation when requesting the credit(s):
• Customer name and contact information;
• Trouble Ticket number(s);
• Date and beginning/end time of the claimed Outage or failed SLA metric;
• Circuit IDs for each pertinent circuit/path; and
• Brief description of the characteristics of the claimed Outage or failed SLA metric.
(ii) To claim remedies for a Chronic Outage under this SLA, Customer must do the following:
(a) Open a Trouble Ticket regarding the Chronic Outage with the WAVE CNOC within seventy-two
(72) hours of the last Outage giving rise to the claimed remedy;
(b) Submit a written request for a remedy regarding the Chronic Outage to Customer’s account
manager within thirty (30) days of the end of the calendar month in which the Chronic Outage
occurred; and
(c) Provide the following documentation when requesting the remedy:
• Customer name and contact information;
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EXHIBIT A: SERVICE LEVEL AGREEMENT FOR LIT FIBER SERVICES pg. 14
Wave Business Solutions, LLC 01/22/2021
• Type of remedy requested (e.g., substitution or termination);
• Trouble Ticket numbers for each individual Outage event;
• Date and beginning/end time of each of the claimed Outages;
• Trouble Ticket number for the Chronic Outage at issue;
• Circuit IDs for each pertinent circuit/path; and
• Brief description of the characteristics of the claimed Chronic Outage.
If Customer fails to timely submit, pursuant to the procedure described in this Section, a request for any SLA-related credit or
Service Outage remedy for which Customer might otherwise be eligible under this SLA, Customer shall be deemed to have waived
its right to receive such credit or remedy. The credits and remedies provided by this SLA are Customer’s sole and exclusive
remedies for any and all claims or complaints regarding the quality and/or availability of any of the Services to which this SLA
applies.
8.2 WAVE’s Evaluation of Claims. All claims for SLA-related credits and remedies for Chronic Outages are subject to
evaluation and verification by WAVE. Upon receiving a claim for SLA-related credit and/or remedies for Chronic Outage, WAVE
will evaluate the claim and respond to Customer within thirty (30) days. If WAVE requires additional information in order to
evaluate Customer’s claim, WAVE will notify Customer by email specifying what additional information is required. Customer will
have fifteen (15) days from the date on which it receives WAVE’s request for additional information in which to provide the
requested information to WAVE. If Customer fails to provide the additional information within that time period, Customer will be
deemed to have abandoned its claim. WAVE will promptly notify Customer of WAVE’s resolution of each Customer claim. If
Customer’s claim for an SLA-related credit or Chronic Outage remedy is rejected, the notification will specify the basis for the
rejection. If Customer’s claim for a credit is approved, WAVE will issue the credit to Customer’s account, to appear on the next
monthly invoice. If Customer’s claim for a Chronic Outage remedy is approved, WAVE will notify Customer of the date on which
the requested substitution or termination will occur. WAVE’s determination regarding whether or not an SLA has been violated
shall be final.
8.3 Limitations and Exclusions. Total credits for any given calendar month shall not exceed 100% of the MRC for the
affected Service. Credits shall not be cumulative with respect to any given incident; instead, if multiple SLAs are violated during a
single incident, Customer shall be entitled only to the largest applicable credit amount. This SLA will not apply and Customer will
not be entitled to any credit under this SLA for any impairment of Services that is caused by or due to any of the following: (i) the
acts or omissions of Customer, its agents, employees, contractors, or Customer’s end users, or other persons authorized by
Customer to access, use or modify the Services or the equipment used to provide the Services, including Customer’s use of the
Service in an unauthorized or unlawful manner; (ii) the failure of or refusal by Customer to reasonably cooperate with WAVE in
diagnosing and troubleshooting problems with the Services; (iii) scheduled Service alteration, maintenance or implementation;
(iv) the failure or malfunction of network equipment or facilities not owned or controlled by WAVE or WAVE’s Affiliates; (v) Force
Majeure Events; (vi) WAVE’s inability (due to no fault of WAVE) to access facilities or equipment as reasonably required to
troubleshoot, repair, restore or prevent degradation of the Service; (vii) WAVE’s termination of the Service for cause, or as
otherwise authorized by the Agreement; or (viii) WAVE’s inability to deliver Service by Customer’s desired due date.
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EXHIBIT B: SERVICE LEVEL AGREEMENT FOR DARK FIBER & WAVELENGTH SERVICES pg. 15
Wave Business Solutions, LLC 01/22/2021
EXHIBIT B
to
Master Services Agreement for Enterprise Services – Governmental Customer
Service Level Agreement for Dark Fiber & Wavelength Services
This Service Level Agreement for Dark Fiber & Wavelength Services (this “SLA”) is a part of the Master Services Agreement for
Enterprise Services – Governmental Customer (“MSA”) between Wave Business Solutions, LLC (“WAVE”) and Customer. Unless
otherwise provided in the applicable Service Order, this SLA applies to the following types of Services provided by WAVE pursuant
to the MSA: (i) dark fiber services, and (ii) wavelength services.
1. AVAILABILITY SLA
WAVE’s dark fiber paths and wavelengths are designed to provide a target Availability of at least 99.9% per calendar month. If the
Availability target is not met with respect to a given dark fiber path or wavelength in a given calendar month, Customer will be
entitled to a credit in the amount set forth below, which must be claimed as described in this SLA. Customer credits for Outages
of dark fiber or wavelength Services are calculated on an individual path basis, and the amount of any credit is based on the portion
of MRC allocable to the affected Service.
Duration of Unavailability
Customer Credit
as % of MRC for the
applicable Service
Less than 45 minutes Target Met
45 Min. up to 8 hours 5%
> 8 hours up to 16 hours 10%
> 16 hours up to 24 hours 20%
> 24 hours 35%
2. MEAN TIME TO RESTORE (“MTTR”) SLA
In the event of Outages in the Services, WAVE’s CNOC is designed to provide a MTTR of no greater than 6 hours. If the target
MTTR is not met for a particular dark fiber path or wavelength in a given calendar month, and Customer receives a Service from
WAVE on the path at issue, then Customer shall be entitled to remedies set forth in the table below, which must be claimed as
described in this SLA.
Target MTTR Actual MTTR
Customer Credit
as % of MRC for the
applicable Service
6 hr MTTR
≤ 6 Hrs. Target Met
> 6 Hrs. to 10 Hrs. 5%
> 10 Hrs. to 18 Hrs. 10%
> 18 Hrs. 20%
3. CHRONIC OUTAGE
If Customer experiences a Chronic Outage with respect to a Service, Customer shall have the right to elect either of the following
remedies, which must be claimed as described in this SLA: (i) substitute a different Service or a different path for the Service that
experienced the Chronic Outage without incurring any Termination Charge or installation fees; or (ii) terminate the affected Service
for the path that experienced the Chronic Outage without incurring any Termination Charge.
DocuSign Envelope ID: BA746CA7-B796-42D9-9BF5-44AFE8EEF3C6DocuSign Envelope ID: 6E47CF03-48DC-4B3E-80D5-826DDC69919C
EXHIBIT B: SERVICE LEVEL AGREEMENT FOR DARK FIBER & WAVELENGTH SERVICES pg. 16
Wave Business Solutions, LLC 01/22/2021
4. DEFINITIONS
For purposes of this SLA the following terms shall have the meanings set forth below.
“Availability” means the dark fibers or the wavelength at issue is available to and accessible by Customer at the specified locations,
is capable of transmitting signals and can otherwise be used by Customer. Availability does not involve the quality of data
transmission. Periods of Excused Outage are not included in the Availability metric. WAVE does not monitor the use or availability
of dark fiber or wavelength Services, thus any Outage must be reported to WAVE by Customer.
“Chronic Outage” means a series of three (3) or more Service Outages affecting the same Service on the path during a given
calendar month, each of which has an actual time to restore “TTR” in excess of WAVE’s targeted MTTR.
“Emergency Maintenance” means WAVE’s efforts to correct conditions on the WAVE Network that are likely to cause a material
disruption to or outage in Services provided by WAVE and which require immediate action. Emergency Maintenance may degrade
the quality of the Services provided to Customer, including possible outages. Any such outages are Excused Outages that will not
entitle Customer to credits under this SLA. WAVE may undertake Emergency Maintenance at any time WAVE deems necessary
and will provide Customer with notice of such Emergency Maintenance as soon as commercially practicable under the
circumstances.
“Excused Outage” means any disruption to or unavailability of Services caused by or due to (i) Scheduled Maintenance,
(ii) Emergency Maintenance, or (iii) circumstances beyond WAVE’s reasonable control, such as, by way of example only, Force
Majeure Events, acts or omissions of Customer or Customer’s agents, licensees or end users, electrical outages not caused by
WAVE, or any failure, unavailability, interruption or delay of third-party telecommunications network components the use of which
are reasonably necessary for WAVE’s delivery of the Services to Customer.
“Mean Time to Restore” or “MTTR” means the average time required to restore the Service(s) to a normally operating state in the
event of an Outage. MTTR is calculated on a path/route basis, as a monthly average of the time it takes WAVE to repair all Service
Outages on the specific path/route. MTTR is measured from the time Customer opens an Outage related Trouble Ticket is with
the WAVE CNOC until the time the Service is again Available. The cumulative length of Service Outages per circuit is divided by the
number of Trouble Tickets in the billing month to derive the monthly MTTR per circuit:
MTTR in Hrs = Cumulative Length of Service Outages Per Month Per Circuit
(per calendar month) Total Number of Trouble Tickets for Service Outages Per Month Per Circuit
Periods of Excused Outage are not included in MTTR metrics.
“Outage” means a disruption in the Service making the Service completely unavailable to Customer that is not an Excused Outage.
For purposes of SLA-related credits and remedies, the period of unavailability begins when an Outage-related Trouble Ticket is
opened by the Customer and ends when the connection is restored, as measured by WAVE. Unavailability does not include periods
of Service degradation, such as slow data transmission.
“Scheduled Maintenance” means any maintenance of the portion of the WAVE Network to which Customer’s demarc is connected
that is performed during a standard maintenance window (1:00AM – 6:00AM Local Time). Customer will be notified via email at
least forty-eight (48) hours in advance of any scheduled maintenance that is likely to affect Customer’s Service.
“Trouble Ticket” means a trouble ticket generated through the WAVE CNOC upon notification of a Service-related problem. In
order for Customer to be eligible for credits or remedies under this SLA, Customer must contact the WAVE CNOC and open a
Trouble Ticket regarding the problem.
“WAVE’s Commercial Network Operations Center” or “WAVE’s CNOC” means WAVE’s commercial network operations center,
which is staffed 24x7x365 and can be reached at: 888-317-0488.
“WAVE Network” means all equipment, facilities and infrastructure that WAVE uses to provide Services to Customer, and includes
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Customer’s access port. The “WAVE Network” does not include Customer owned or leased equipment (unless leased from WAVE),
or any portion of Customer’s local area network after the demarcation point for the Services provided by WAVE.
5. CLAIMING CREDITS AND REMEDIES
5.1 Requesting SLA Related Credits and Chronic Outage Remedies. To be eligible for any SLA-related Service credit
or Chronic Outage remedy, Customer must be current in its financial obligations to WAVE. Credits are exclusive of any applicable
taxes charged to Customer or collected by WAVE.
(i) To claim SLA-related Service credits, Customer must do the following:
(a) Open a Trouble Ticket with the WAVE CNOC within twenty-four (24) hours of the occurrence
giving rise to the claimed credit(s);
(b) Submit a written request for the credit(s) to Customer’s account manager within fifteen (15)
days after the end of the calendar month in which the incident giving rise to the credit(s)
occurred; and
(c) Provide the following documentation when requesting the credit(s):
• Customer name and contact information;
• Trouble Ticket number(s);
• Date and beginning/end time of the claimed Outage or failed SLA metric;
• Circuit IDs for each pertinent circuit/path; and
• Brief description of the characteristics of the claimed Outage or failed SLA metric.
(ii) To claim remedies for a Chronic Outage under this SLA, Customer must do the following:
(a) Open a Trouble Ticket regarding the Chronic Outage with the WAVE CNOC within seventy-two
(72) hours of the last Outage giving rise to the claimed remedy;
(b) Submit a written request for a remedy regarding the Chronic Outage to Customer’s account
manager within thirty (30) days of the end of the calendar month in which the Chronic Outage
occurred; and
(c) Provide the following documentation when requesting the remedy:
• Customer name and contact information;
• Type of remedy requested (e.g., substitution or termination);
• Trouble Ticket numbers for each individual Outage event;
• Date and beginning/end time of each of the claimed Outages;
• Trouble Ticket number for the Chronic Outage at issue;
• Circuit IDs for each pertinent circuit/path; and
• Brief description of the characteristics of the claimed Chronic Outage.
If Customer fails to timely submit, pursuant to the procedure described in this Section, a request for any SLA-related credit or
Service Outage remedy for which Customer might otherwise be eligible under this SLA, Customer shall be deemed to have waived
its right to receive such credit or remedy. The credits and remedies provided by this SLA are Customer’s sole and exclusive
remedies for any and all claims or complaints regarding the quality and/or availability of any of the Services to which this SLA
applies.
5.2 WAVE’s Evaluation of Claims. All claims for SLA-related credits and remedies for Chronic Outages are subject to
evaluation and verification by WAVE. Upon receiving a claim for SLA-related credit and/or remedies for Chronic Outage, WAVE
will evaluate the claim and respond to Customer within thirty (30) days. If WAVE requires additional information in order to
evaluate Customer’s claim, WAVE will notify Customer by email specifying what additional information is required. Customer will
have fifteen (15) days from the date on which it receives WAVE’s request for additional information in which to provide the
requested information to WAVE. If Customer fails to provide the additional information within that time period, Customer will be
deemed to have abandoned its claim. WAVE will promptly notify Customer of WAVE’s resolution of each Customer claim. If
Customer’s claim for an SLA-related credit or Chronic Outage remedy is rejected, the notification will specify the basis for the
rejection. If Customer’s claim for a credit is approved, WAVE will issue the credit to Customer’s account, to appear on the next
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monthly invoice. If Customer’s claim for a Chronic Outage remedy is approved, WAVE will notify Customer of the date on which
the requested substitution or termination will occur. WAVE’s determination regarding whether or not an SLA has been violated
shall be final.
5.3 Limitations and Exclusions. Total credits for any given calendar month shall not exceed 100% of the MRC for the
affected Service. Credits shall not be cumulative with respect to any given incident; instead, if multiple SLAs are violated during a
single incident, Customer shall be entitled only to the largest applicable credit amount. This SLA will not apply and Customer will
not be entitled to any credit under this SLA for any impairment of Services that is caused by or due to any of the following: (i) the
acts or omissions of Customer, its agents, employees, contractors, or Customer’s end users, or other persons authorized by
Customer to access, use or modify the Services or the equipment used to provide the Services, including Customer’s use of the
Service in an unauthorized or unlawful manner; (ii) the failure of or refusal by Customer to reasonably cooperate with WAVE in
diagnosing and troubleshooting problems with the Services; (iii) scheduled Service alteration, maintenance or implementation;
(iv) the failure or malfunction of network equipment or facilities not owned or controlled by WAVE or WAVE’s Affiliates; (v) Force
Majeure Events; (vi) WAVE’s inability (due to no fault of WAVE) to access facilities or equipment as reasonably required to
troubleshoot, repair, restore or prevent degradation of the Service; (vii) WAVE’s termination of the Service for cause, or as
otherwise authorized by the Agreement; or (viii) WAVE’s inability to deliver Service by Customer’s desired due date.
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