HomeMy WebLinkAboutMaster AgreementMASTER AGREEMENT FOR PURCHASE OF
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EQUIPMENT AND/OR SERVICES
Agreement No.: 2K8AM 030785
1. Master Agreement - This Agreement ("Agreement") is made by BELLSOUTH COMMUNICATION SYSTEMS, LLC
d/b/a AT&T Communication Systems Southeast ("AT&T") with offices at 1936 Blue Hills Drive, Roanoke, Virginia 24012
and City of Mimi ("Customer") and will govern all Orders (existing or future) for Equipment and/or Services. Subject to
Section 21, upon any termination of this Agreement all maintenance and other obligations of the parties shall continue with
respect to Orders accepted by AT&T prior to termination.
2. Definitions - 2.1 "Data Equipment and Data Services" are defined as the Equipment (including without limitation hubs,
routers and remote access devices) that provides connectivity for local area data and/or VoIP networks or to implement
wide -area networking; and the Services (including without limitation the assessment, design, configuration, staging,
implementation, project management, monitoring and maintenance of such networks) provided by AT&T under this
Agreement as listed in an Order.
2.2 "Equipment" is defined as all communications and information systems products purchased from or serviced by
AT&T under an Order, including Data Equipment unless otherwise noted. Equipment also includes Software.
2.3 "Implementation" is defined as (a) for Equipment installed by AT&T, the date the Equipment has been installed
and is operating substantially in accordance with the manufacturer's specifications; or (b) for all other Equipment, upon
delivery; or (c) for Services, upon completion in accordance with agreed Order requirements.
2.4 "Major Failure" is defined as the failure of Equipment that substantially interferes with the normal conduct of
Customer's business.
2.5 "Minor Failure" is defined as any failure of Equipment other than a Major Failure.
2.6 "Order" is defined as any request for Equipment and/or Services placed by Customer pursuant to this Agreement
and accepted by AT&T as more fully described in Section 3.
2.7 "Services" is defined as work performed by AT&T pursuant to this Agreement, including but not limited to the
following: (a) Warranty and Maintenance Services, (b) Installation Services, (c) Electrical Damage Repair Service and/or
(d) Data Services, unless otherwise noted.
2.8 "Software" is defined as any set of one or more computer programs which is composed of routines, subroutines,
concepts, processes, algorithms, formulas, ideas, or know-how severally owned by or licensed to AT&T and/or any one or
more of its suppliers. The term "Software" shall also include any corrections, patches, updates, or revisions to Software
originally provided.
3. Orders - Customer may place Orders for Equipment and/or Services pursuant to this Agreement by: (a) AT&T order
form; (b) telephone order to AT&T for non -engineered move, add, or change work, not to exceed ten thousand dollars
($10,000); (c) Customer purchase order or letter of purchase request; or (d) facsimile or electronic transmission, for the
purposes of which Customer agrees that (i) AT&T and any third -parry lender or lessor may rely upon any facsimile copy,
electronic data transmission or electronic data storage of the Agreement, any Order or other information hereunder, and (ii)
such facsimile copy, electronic data transmission or electronic data storage will be deemed an original and the best
evidence thereof for all purposes, including, without limitation, all evidentiary purposes before any arbitrator, court or other
adjudicatory authority. Each Order, if confirmed or accepted by AT&T, shall constitute a separate purchase; and, except
for any provisions which are specifically excluded or modified in the Order, each Order shall automatically incorporate all
the terms and conditions of this Agreement, and any and all standard (such as preprinted or computer-generated) terms
and conditions on any Customer purchase order forms or other Customer documents shall be deemed deleted. If
Customer desires AT&T invoices to reference Customer's purchase order or other number for convenience, Customer may
include such number in each Order. Each Order shall also include any mutually agreed Statement of Work.
4. Prices And Payment - The total price for the Equipment and Services shall be stated in the applicable Order. Expedited
Orders may involve additional charges. Unless otherwise stated in the applicable Order, Customer's payment for cash or
leased transactions is invoiced and due as follows: (a) Maintenance Service - monthly in advance; (b) Equipment or other
Orders - 20% of the total price with Order, 50% at Equipment delivery and 30% at Implementation; (c) Installation Services
- 100% upon the completion of the Installation Services. Data Equipment components shall be invoiced and payable upon
shipment of Equipment by the manufacturer. Data Maintenance and Monitoring Services are invoiced and payable in
advance (unless stated otherwise in the Order). Other Data Services shall be invoiced and payable upon Implementation
per Customer's individual site locations. Customer shall pay the amounts agreed to and invoiced by AT&T within thirty (30)
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days of receipt of invoice. The amounts listed in the Order are exclusive of, and Customer shall pay, all related delivery
costs. If shipping charges are shown on an Order, they are an estimate only; and shipping charges invoiced may vary from
the estimate shown on the Order. In the event of a dispute between Customer and AT&T as to the correctness of items
appearing on AT&T's invoice, Customer may withhold payment of the disputed items only. If the Customer elects to lease
Equipment, Customer shall sign all leasing acceptance documentation immediately on Implementation. If Customer
intends to finance an Order by lease or other third -party financing and for any reason the lease or other third -party financing
is not finalized or payments are not made, Customer agrees to pay cash per AT&T's then -current payment terms.
5. Taxes - All charges are exclusive of applicable federal, state or local taxes and fees. AT&T may invoice and Customer
agrees to pay to AT&T amounts equal to any taxes resulting from this Agreement or any activities hereunder, exclusive of
taxes on AT&T's net income. Customer will be responsible for any ad valorem, property, or other taxes assessable on
Equipment on or after delivery to the installation site.
6. Risk of Loss or Damage - All risk of loss or damage shall pass to Customer as to each item of Equipment on the date of
delivery.
7. Security Interest - Customer grants AT&T a purchase money security interest in each item of Equipment. Customer
agrees to execute any documents reasonably requested by AT&T to protect and/or perfect AT&T's security interest.
8. Software License - 8.1 All Software is and will remain the property of AT&T or its third -parry suppliers. AT&T, with
respect to AT&T -developed Software and to the extent authorized under the supplier licenses, grants to Customer a
personal, nontransferable and nonexclusive sublicense (without the right to further sublicense) to use the Software, subject
to the following terms and conditions.
8.2 Customer shall (a) use the Software only in conjunction with the particular Equipment for which the Software was
initially furnished; (b) use the Software solely for Customer's internal business purposes; (c) not reverse engineer,
decompile, disassemble, reverse translate or otherwise translate the Software into human readable form, nor
reproduce the Software except for archival purposes; (d) return the Software, together with all copies thereof, or with
AT&T's consent, destroy (or erase, if recorded on an erasable storage medium) the Software when no longer needed
or permitted for use with the Equipment for which the Software was furnished; and (e) keep in confidence all
information relating to Software and treat such information as the exclusive property and trade secret of AT&T or such
suppliers.
8.3 Notwithstanding the above, Customer may disclose the Software to other persons solely for the purpose of
installing, operating or maintaining the particular Equipment for which the Software was furnished, provided such other
persons agree in writing to the same conditions respecting use and confidentiality contained in this Section 8.
8.4 In addition to the above, where AT&T's suppliers require Customer to sign or otherwise agree to separate licensing
provisions directly with the supplier, Customer shall comply with such licensing provisions.
9. Changes in Customer Orders - Changes to an Order may only be made following written agreement of Customer and
AT&T to the change. If Customer and AT&T agree to minor changes in the Equipment or Services prior to Implementation,
then Customer shall be charged or credited for the changed items. Appropriate documentation may be required so that
additions or deletions may be recorded and charges or credits issued. The Customer's ability to delete items from an
Order or to return Equipment is subject to AT&T's ability to return the Equipment to the manufacturer. Reasonable
restocking, shipping and handling charges may be assessed with respect to any items deleted or returned.
10. Limited Warranties - 10.1 AT&T warrants that at Implementation, and for the duration of the warranty period referred to
below, each item of Equipment, except for Data Equipment or as otherwise provided herein or in an Order, will function
substantially in accordance with the manufacturer's published specifications, provided it is not damaged as set forth in
Section 19 and is used according to standard operating instructions issued by the manufacturer or AT&T. Unless
otherwise stated in the Order, the warranty period for Equipment installed by AT&T is twelve (12) months from
Implementation. In addition, (a) the warranty period for Equipment moves, additions and changes shall be the greater of
ninety (90) days or the remainder of the current annual service period of the system to which the Equipment is being
added; (b) if Equipment is purchased without AT&T installation ("Drop Ship"); AT&T will provide Depot Warranty Service for
a period of ninety (90) days from the shipment date unless otherwise stated in the Order; and (c) CERTAIN
MISCELLANEOUS EQUIPMENT IS SOLD "AS IS" AND WILL CARRY NO EXPRESS OR IMPLIED WARRANTY
WHATSOEVER FROM AT&T. Any warranty service for "As Is" Equipment will be provided directly by the manufacturer of
such Equipment. Such Equipment shall be clearly indicated on the applicable Order as Manufacturer's Direct Warranty
Service ("MDWS"). The warranty period will not be enlarged by AT&T's repair or replacement thereof.
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10.2 Data Equipment and Data Services Warranty Disclaimer -AT&T DOES NOT IMPLY OR EXPRESS ANY AT&T
WARRANTY WHATSOEVER FOR DATA EQUIPMENT OR SERVICES PROVIDED. Customer's sole warranty is from the
manufacturer. If Data Maintenance Service is not listed on an Order, any warranty claims that may arise are solely the
responsibility of Customer to pursue with the manufacturer.
10.3 All warranties extend only to the original purchaser of the Equipment, identified as "Customer," and do not extend
to any subsequent purchaser, transferee, user, or assignee of the Equipment, unless prior written consent is obtained
from AT&T for the extension of the warranties to such purchaser, user, or assignee.
11. Warranty Disclaimer - THERE ARE NO WARRANTIES, EXPRESS OR IMPLIED (INCLUDING ANY REGARDING
MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE), NOT SPECIFIED HEREIN RESPECTING
EQUIPMENT FURNISHED OR SERVICES PERFORMED, AND AT&T EXPRESSLY DISCLAIMS SAME.
12. Warranty Service - 12.1 Full Warranty Service ("FWS"): AT&T agrees to provide, except for Data Equipment or as
otherwise set forth herein or in an Order, Warranty Service to keep the Equipment in, or to restore the Equipment to, good
working order in compliance with the manufacturer specifications. If neither repair nor replacement are reasonably
available to AT&T, then AT&T may elect instead to return the price paid to AT&T for the purchased Equipment, or the one-
time fee paid for the licensed Software which is in either case defective, as then depreciated based on Customer's
depreciation schedule used for federal income tax reporting purposes. Warranty Service includes preventive maintenance
based upon the specific needs of individual items of Equipment and remedial maintenance during warranty coverage.
Replacement or additional parts and Equipment may be either new or reconditioned and equivalent to new in performance.
The replaced items become the property of AT&T.
12.2 Response Times for Full Warranty Service: AT&T will use reasonable efforts to respond to Customer's request for
Warranty Service for a Major Failure within two (2) hours, twenty-four (24) hours a day, seven (7) days a week, from the
time AT&T first receives Customer's request. With respect to a Minor Failure, AT&T will use reasonable efforts to respond
to Customer's request for Warranty Service during AT&T's regular working hours, Monday through Friday, excluding
holidays observed by AT&T, within eight (8) business hours from the time AT&T first receives the Customer's request.
12.3 Depot Warranty Service ("DWS"): AT&T will replace defective Equipment on an exchange basis. Customer agrees to
return defective Equipment to AT&T for depot service within three (3) days after receipt of replacement Equipment from
AT&T. If AT&T has not received such defective Equipment within ten (10) days, Customer agrees to pay for the
replacement items.
13. Installation - 13.1 If ordered by Customer and agreed by AT&T, AT&T will provide Installation Services to install the
Equipment. Customer agrees to provide, in a timely manner, Customer design information and a safe and suitable
installation environment as stated in any applicable AT&T installation manual, or as otherwise specified by the
manufacturer or AT&T. Customer is responsible for providing all required AC electrical power and communications access
for the Equipment and Services supplied. All such receptacles must be located within five feet of the site where each set of
Equipment ordered is physically installed. AT&T will make reasonable efforts to meet the date for installation set forth on
the Order, and will notify Customer as soon as practicable of any delay. Customer agrees to notify AT&T as soon as
practicable if Customer requires postponement of any installation. If Customer or Equipment specifications require non-
standard wiring, special lifts, ladders, other items or work required as a result of nonstandard Customer site conditions,
Customer will incur additional installation charges. Each item of Equipment purchased under this Agreement will be
installed as specified by AT&T and the Equipment manufacturer. If the Equipment is not to be installed by AT&T, Customer
warrants that all Equipment is to be installed by Customer's manufacturer certified employees at its premises and is not for
resale.
13.2 if the Implementation of any Order is delayed, by no fault of AT&T, for ninety (90) days or more from the acceptance of
the Order by AT&T or sixty (60) days from the original agreed Implementation date, AT&T will have the following options:
(a) revise the price to reflect then -current AT&T pricing; (b) require payment for Equipment delivered and Services
performed to that time; or (c) cancel the Order and collect reasonable termination charges (manufacturer's restocking
charges and other out-of-pocket costs, non-recoverable materials and labor expended, plus lost margin).
14. Maintenance Service -14.1 if ordered by Customer and agreed by AT&T, Maintenance Service coverage for Data
Equipment commences at Implementation and Maintenance Service for voice Equipment commences on expiration of
warranty. The response times for Maintenance Service will be as listed in Section 12.2 above, or as agreed in the
Order. Unless included in the Order, Customer will provide an analog modem at each site for remote diagnostic and/or
repair and a dedicated analog telephone line within five feet of the Equipment. Maintenance may be provided via
repair, replacement, or upgrade of defective Equipment at AT&T's option. If on-site manufacturer service is required, it
will be provided at AT&T's then -current commercial rates. For all Equipment to be maintained by AT&T, Customer
represents it has paid the appropriate manufacturer license fee, and will reimburse AT&T for any unpaid license fee if
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payment is demanded by the manufacturer. If an item of Equipment is placed on end of life ("EOL") status by the
manufacturer, AT&T will make commercially reasonable efforts to maintain that product during the then -current term of
Maintenance Service, but will no longer be required to supply product support for EOL items.
14.2 Except for Data Equipment Maintenance Service or as specified in the Order, the terms and conditions of Sections
12.1 and 12.2 shall apply to Full Maintenance Service ("FMS"), and those of 12.3 for Depot Maintenance Service ("DMS").
If equipment is not under AT&T Warranty or Maintenance Service at the time Maintenance Service is ordered hereunder,
or if additional items are added by Customer or a third party, AT&T will inspect the equipment and perform any necessary
repairs at AT&T's then -current rates for mileage, labor, and materials. Charges for lodging, subsistence, and transportation
will apply depending upon Customer's distance from AT&T's local service center.
14.3 Maintenance Service charges will be set forth in the applicable Order. Unless otherwise set forth in the Order, the
Total Maintenance Charge is an annual charge payable in monthly installments. If at any time additional Equipment is
added to the original Equipment, a new pro -rated charge, computed at AT&T's then -current rates, will be added to the Total
Maintenance Charge to reflect the additional Equipment being serviced. For multi-year Orders, the rates used to calculate
the Maintenance Service Charge may be increased annually during the Term of Maintenance Service by a percentage no
greater than the percentage increase in the Consumer Price Index over the previous year. AT&T may adjust the monthly
maintenance charge if the Equipment is moved to a different location. Customer's payment is due upon receipt of AT&T's
invoice(s).
14.4 For key system maintenance only, there is a minimum charge for seven stations at the agreed rate, even if the key
system in question contains fewer than seven stations.
15. Term of Maintenance Service - 15.1 The term of the Maintenance Service, if ordered and agreed, shall begin on either
(a) the day following the last day of the warranty period for the applicable Order, or (b) for Equipment not covered by
Warranty or Maintenance Service at the time Maintenance Service is ordered, the day following the completion of the
necessary repairs as described in Section 14.2 above.
15.2 THE INITIAL TERM FOR MAINTENANCE SERVICE SHALL BE ONE (1) YEAR UNLESS OTHERWISE STATED
ON THE ORDER. THE INITIAL TERM SHALL BE AUTOMATICALLY RENEWED FOR SUCCESSIVE TERMS OF ONE
(1) YEAR EACH AT AT&T'S THEN -CURRENT RATES. EITHER PARTY MAY ELECT NOT TO RENEW MAINTENANCE
SERVICE BY GIVING THE OTHER PARTY WRITTEN NOTICE AT LEAST THIRTY (30) DAYS PRIOR TO THE END OF
THE THEN -CURRENT TERM.
16. Additional Services - 16.1 Equipment Drop Ship - For Drop Ship Orders, AT&T will ship Equipment to the Customer's
specified and agreed location(s). AT&T provides no assessment, systems design, staging, implementation, installation or
project management for Drop Ship Equipment.
16.2 Assessment - If Assessment is listed in an Order, AT&T will work with Customer's representative(s) in evaluating
Customer requirements for Equipment and Services, and render an evaluation report, delineating those requirements.
16.3 Systems Design - If Systems Design is listed in an Order, AT&T will work with local exchange and interexchange
carriers chosen by Customer in designing the necessary customer premise equipment elements (the "System Design") to
provide communications between the locations specified by Customer.
16.4 Configuration, Staging and Implementation - if Configuration, Staging and Implementation are listed in an Order,
AT&T will assemble, configure and test the Equipment. AT&T's technical staff adheres to the original equipment
manufacturer's (OEM) recommendations for configuration and installation. The Equipment will be delivered to the specified
Customer location(s) and installed. AT&T will also test each system, according to procedures/methods listed in the Order.
AT&T will provide to Customer the written results of all testing conducted by AT&T. Upon successful completion of testing,
AT&T will notify Customer in writing and the Equipment and Services will be deemed accepted. Additional testing outside
that listed in the Order or at Customer's convenience or request will be performed at AT&T's option and at AT&T's then -
current rates.
16.5 Project Management - If Project Management is listed in an Order, AT&T will assign a qualified Project Manager to
provide a single point of contact and coordinate all activities to be delivered under the terms of that Order. AT&T may
replace the AT&T Project Manager at any time by written notice to Customer.
16.6 Network Monitoring Services - Performance Advisor Plus - If Network Monitoring is listed in an Order, AT&T will
provide Customer: (i) Fault Monitoring with IP Ping and MIB polling; (ii) Monthly fault and performance reporting; (iii) Multi -
Vendor trouble isolation/coordination; and (iv) Proactive performance monitoring. Customer will provide: (a) Network
diagram and applicable circuit ID's; (b) Addressing and naming conventions; (c) SNMP and TI read/write access; (d)
Analog modems at each site for remote diagnostics and/or repair; (e) Dedicated analog telephone line, within fifteen (15)
feet of the installed router; (f) Detailed contact information for all circuit and hardware maintenance providers, including
emergency access and after-hours contacts; (g) Letter of Agency naming AT&T for the purpose of opening and tracking
trouble tickets with respective suppliers; (h) A 64K Frame Relay PVC with 16K CIR management link between Customer's
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host router and AT&T's monitoring facility in Atlanta, Georgia; and (i) Additional requirements as agreed in a Scope of
Work.
17. Termination of Orders - Either party may terminate an Order before completion or the end of the agreed term without
liability only if the other party fails to perform or observe any material term or condition of this Agreement or the Order and
such failure continues unremedied for a period of thirty (30) days after written notice from the complaining party. Customer
acknowledges that maintenance, dedicated technician, monitoring and other ongoing fixed term Service Orders are priced
based on a fixed term which may at times be paid in installments. Due to the nature of such Services, it isnot possible to
calculate loss or damage due to early termination. Customer and AT&T agree that if AT&T terminates any ongoing fixed
term Service Order because of Customer's default, or if Customer terminates any such Service Order other than on
account of AT&T's default, then AT&T shall be entitled to collect seventy percent (70%) of the payments due for the
remainder of the term of the Service Order.
18. Key System Electrical Damage Repair Service - 18.1 WHERE AVAILABLE, AND IF ELECTED BY CUSTOMER,
CUSTOMER AGREES TO PAY A PER STATION RATE IN ADDITION TO NORMAL MAINTENANCE RATES DURING
THE WARRANTY AND MAINTENANCE PERIODS, AND AT&T WILL EXTEND MAINTENANCE TO COVER REPAIR OR
REPLACEMENT OF ALL AT&T -PROVIDED KEY SYSTEMS AND KEY SYSTEM RELATED EQUIPMENT COVERED
HEREUNDER WHICH IS DAMAGED BY A LIGHTNING STRIKE OR ELECTRICAL POWER SURGE. THIS SERVICE
WILL BE AUTOMATICALLY RENEWED AT THEN -CURRENT RATES AS LONG AS A VALID MAINTENANCE ORDER
IS IN EFFECT. THIS SERVICE IS ONLY AVAILABLE WITH WARRANTY OR MAINTENANCE SERVICE AND CANNOT
BE PURCHASED SEPARATELY.
18.2 In all situations involving damage to AT&T -provided key system or key system related Equipment due to lightning or
power surges, provided the Electrical Damage Repair Service has been invoked, AT&T's SOLE AND EXCLUSIVE
LIABILITY will be repair or replacement of the damaged Equipment with AT&T -provided Equipment. In no event will the
costs exceed the current market value of the damaged key system and key system related Equipment provided by AT&T.
19. Warranty and Maintenance Service Exclusions - AT&T shall respond to any service call requested by Customer;
however, Customer acknowledges that Warranty and Maintenance Services do not cover damages to or failure of the
Equipment or increases in service time resulting from causes other than defects in or the normal wear -and -tear of the
Equipment including, but not limited to, misuse or negligent operation of the Equipment, accident, theft, unexplained loss,
lightning, electrical power surge, fire, flood, wind, acts of God, war, terrorism, virus, failure of Customer to maintain a proper
operating environment, or repair, relocation, damage or alteration of the Equipment by anyone other than AT&T or its
designated agents. Warranty and Maintenance Services do not cover any Customer -provided cable or equipment unless
stated on the Order. Any site visits or repairs necessitated by any of these excepted causes made by AT&T shall be at the
sole expense of Customer, and Customer agrees to bear the cost of all labor and materials at AT&T's then -current rates.
20. Remedies and Damages Limitations - 20.1 The following limitations of liability represent a material inducement to the
parties to enter into this Agreement and to perform Orders at the stated price. If additional risks or undertakings were
contemplated by AT&T, they would have been reflected in an increased price. In contemplation of the price, Customer
acknowledges that there is consideration for the limitation of damages and remedies set forth above and as follows.
20.2 ANYTHING IN THIS AGREEMENT OR ANY OTHER DOCUMENTS TO THE CONTRARY NOTWITHSTANDING,
NEITHER AT&T, NOR ITS SUPPLIERS OR MANUFACTURERS, SHALL BE LIABLE FOR ANY SPECIAL,
CONSEQUENTIAL, EXEMPLARY, PUNITIVE, ECONOMIC, OR INDIRECT DAMAGES, INCLUDING WITHOUT
LIMITATION LOST PROFITS, LOSS OF DATA, TOLL FRAUD OR OTHER UNAUTHORIZED USE, OR LOSS OF USE.
THIS LIMITATION OF LIABILITY WILL APPLY WHETHER ANY CLAIM IS BASED ON CONTRACT, WARRANTY,
NEGLIGENCE OR OTHER TORT, BREACH OF STATUTORY OR OTHER LEGAL DUTY, PRINCIPLES OF INDEMNITY
OR CONTRIBUTION, OR OTHERWISE, WHETHER OR NOT THEY OR AT&T HAD NOTICE OF THE POSSIBILITY OF
SUCH DAMAGES OCCURRING. CUSTOMER'S EXCLUSIVE REMEDY FOR ANY DEFAULT OR BREACH OF ANY
WARRANTY, EXPRESSED OR IMPLIED, SHALL BE LIMITED TO REPAIR OR REPLACEMENT OF EQUIPMENT OR
REPERFORMANCE OF THE SERVICES AT AT&T'S EXPENSE OR RETURN OF THE DEPRECIATED AMOUNT PAID
FOR THE EQUIPMENT OR SERVICE IF REPERFORMANCE, REPAIR OR REPLACEMENT IS NOT REASONABLY
AVAILABLE.
20.3 This limitation of liability applies with equal force and effect to all subsequent Services performed or Equipment
provided by AT&T. In the event that a court of competent jurisdiction should hold that the foregoing limitations of liabilities
or remedies available, or any portions thereof, are unenforceable for any reason, or that Customer's remedies fail their
essential purpose, Customer expressly agrees that under no circumstances shall the total liability of AT&T to Customer
exceed the lesser of $50,000 or the value of the Equipment or Services provided by AT&T pursuant to the particular Order
giving rise to such liability. AT&T and Customer each agree to waive all rights of subrogation against the other.
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21. Default by Customer - Upon any default by Customer under this Agreement, including the refusal to accept conforming
Equipment or Services, AT&T may exercise all remedies to which AT&T may be entitled at law or in equity, including
specific performance. Additionally, AT&T may declare all sums due or to become due hereunder immediately due and
payable, and AT&T shall be entitled to recover all collection costs incurred, including legal interest. In addition, for
payments not received within thirty (30) days of the invoice date, a late fee not exceeding the lower of two -percent (2%) per
month or the maximum rate allowed by law shall be assessed on any past due invoice balance. AT&T shall not be
obligated to provide Equipment or perform Services hereunder if Customer is in default of any of its obligations under this
Agreement for any Order. Upon Customer default, AT&T may suspend or cancel any outstanding, unfulfilled Orders
without.in any way affecting its rights under this Agreement. If AT&T elects to continue performing under any Order,
AT&T's actions shall not constitute a waiver of any default by Customer.
22. Contingencies - AT&T shall be excused from performance and shall not be liable for any delay or damage caused, in
whole or in part, by any occurrence beyond the reasonable control either of AT&T or of its subcontractors or suppliers.
Such contingencies include, without limitation, Customer delays, war, civil disobedience, delay in transportation, failure by
suppliers to deliver Equipment, governmental action, terrorism, acts of any third party, labor dispute, accident, fire,
explosion, flood, severe weather or other acts of God, power failure, shortage of labor or materials, or discovery of
asbestos or other hazardous substance.
23. Notices - Except as otherwise provided herein, any notices or demands shall be given in writing by hand delivery,
receipted delivery service, certified mail, or registered mail, with postage or charges prepaid and addressed as set forth in
this Agreement. Such notices shall be deemed to have been given when sent. Addresses may be changed at any time by
giving thirty (30) days' prior written notice as above.
24. Patent and Copyright Indemnity -24.1 If any Equipment or Software furnished under this Agreement (other than
Equipment or Software provided "As Is") infringes any United States patent, trademark, copyright, or trade secret and a
written claim is made or suit is brought against Customer on that account, AT&T agrees to defend or settle any such
claim or suit at AT&T's expense. AT&T will also pay all damages and costs that by final judgment of a court of
competent jurisdiction are assessed against Customer due to such infringement.
24.2 Alternatively, if any Equipment becomes, or in AT&T's opinion, is likely to become the subject of a valid and
enforceable claim of infringement, AT&T will, at its option: (a) procure for Customer the right to continue using the
applicable Equipment; (b) replace the Equipment with a non -infringing Equipment substantially complying with the original
Equipment's specifications; (c) modify the Equipment so it becomes non -infringing and performs in a substantially similar
manner to the original Equipment; or (d) return the price paid for the purchased Equipment or the one-time fee paid for the
licensed Software which is in either case the subject or potential subject of an infringement claim, as then depreciated
based on Customer's depreciation schedule used for federal income tax reporting purposes.
24.3 AT&T's obligation as set forth in this Section is expressly conditioned upon the following: (a) that AT&T shall be
notified promptly in writing by Customer of any claim or suit of which Customer is aware; (b) that AT&T shall have sole
control of the defense or settlement of any claim or suit; and that Customer shall not make any compromise, admission of
liability or settlement, or take any other action impairing the defense of such claim without AT&T's prior written approval; (c)
that Customer shall cooperate with AT&T in all reasonable ways to facilitate the investigation, settlement or defense of any
claim or suit; and (d) that the claim or suit does not arise from: (i) Customer's use of Software or Equipment based upon
specifications supplied by or specific instructions furnished by Customer; or (ii) Customer alterations or modifications to
Equipment; or (iii) combinations of Equipment provided by AT&T with any equipment, software, application, product, data
or process provided by Customer or others; or (iv) Customer's use of such Equipment other than in accordance with the
applicable manufacturer's specifications; (v) Customer using or continuing to use other than the most current release of the
Software; or (vi) use of Equipment, Software or Services in a manner inconsistent with the intended use thereof under this
Agreement.
24.4 If Customer implements interactive voice response (IVR) functionality, any IVR implementation and application
development work will be provided by a Customer -chosen third -parry developer. Neither AT&T nor any of its affiliates shall
be liable to or indemnify Customer for, and Customer releases and shall reimburse AT&T for, any claims of patent
infringement, including contributory infringement or inducement to infringe, relating to IVR functionality or to any patents
owned or licensed now or hereafter by Ronald A. Katz, or Ronald A. Katz Technology Licensing, L.P. or by his or its
affiliates, successors or assigns ("Katz Patents") based on or related to the Equipment, Services or any information
provided by AT&T. AT&T is not responsible for determining whether or not obtaining a license for any Katz Patents or any
IVR -related patents is advisable, or for obtaining any such license on Customer's behalf, or for paying any fees related to
such licenses.
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24.5 The foregoing states the entire obligation of AT&T, and the exclusive remedy of Customer, with respect to
infringement of proprietary rights. The foregoing is given to Customer solely for its benefit and is in lieu of, and AT&T
disclaims, all warranties of noninfringement with respect to the Equipment, Software or Services.
25. Public Network Facilities - Under no circumstances does AT&T hold itself out to be a provider, reseller or aggregator of
regulated public network services. Public network provider and services selection is Customer's responsibility, and public
network performance is the responsibility of the public network facility provider.
26. Reasonable Access - Accuracy - Customer will designate in writing to AT&T a Customer Project Manager responsible
for all communications between AT&T and Customer in connection with the Services. To ensure the timely and accurate
provision of Services, Customer will be required from time to time to provide access to Customer locations, information and
staff resources during AT&T's regular business hours. If pre -scheduling is required to be on-site to perform Services,
Customer will inform the AT&T Project Manager prior to the scheduled performance date. Scheduled Service that is
unable to be performed due to Customer's constraints will result in additional charges if a delay or re -dispatch of AT&T
personnel is required. Customer is responsible for any resulting Service delays or added costs. The accuracy of
information regarding the various internal requirements of the Service is solely Customer's responsibility.
27. ADDITIONAL PROVISIONS
The following provisions apply to Equipment manufactured and SMARTnetT" services provided by Cisco Systems, Inc.
("Cisco") -
A. CISCO WARRANTY, SOFTWARE LICENSE AND RMA PROCEDURES
For Purchased Equipment manufactured by Cisco, the software is provided subject to the software license found at
http://www.att.com/cpe/docs/software license.doc. This license is a separate agreement between Customer and
Cisco. Customer's assent to the terms and conditions of this Attachment binds Customer to the terms and conditions
of this Cisco license, as if the terms and conditions of the license were fully set forth in this Attachment. Customer
agrees that it shall comply with the terms and conditions of this license and associated documentation.
Additionally, the applicable warranty passed through hereunder with respect to such Purchased Equipment as
manufactured by Cisco is included in the Purchased Equipment package; a sample of the Cisco limited warranty
passed through hereunder can be reviewed at http:// rww.cisco.com/en/US/products/prod warranties listing html.
The terms and conditions applicable to the Cisco RMA process can be reviewed at
htto://www.att.com/coe/docs/return material authorization.doc_
B. CISCO SMARTNETTM SERVICES
Cisco SMARTnetM services provided hereunder are provided directly to Customer by Cisco pursuant to the terms of
the Cisco End User Support Agreement ("EUSA") reprinted at http://www.cisco.com/legal/cbr.htmi. The EUSA is a
separate agreement between Cisco and the Customer and Customer is solely responsible for compliance with its terms
and conditions. By Customer assenting to the terms and conditions of this Pricing Schedule, Customer is also bound
to the terms and conditions of EUSA, as if the terms and conditions of the EUSA were fully set forth herein. AT&T will
invoice Customer for the charges associated with SMARTnetT"" services purchased hereunder. Cisco will be solely
responsible for the provision of the SMARTnefm services and Customer releases AT&T from any loss, damages or
other claims relating to the SMARTnetM services.
28. Miscellaneous Provisions - The rights and obligations of either party may not be assigned or delegated without the
prior written consent of the other party, which consent shall not be unreasonably withheld; provided, however, that
AT&T may, without Customer's consent, assign this Agreement and/or any Order to an entity owned in whole or in part
by AT&T Corporation or by one or more of its direct or indirect subsidiaries or affiliates. AT&T may subcontract the
performance of any of its obligations hereunder. If any provision or provisions of this Agreement are held to be invalid,
illegal, or unenforceable, the validity, legality, and enforceability of the remaining provisions shall not in any way be
affected or impaired thereby. The terms and conditions of this Agreement shall be construed in accordance with the
laws of the Commonwealth of Virginia, excluding its conflict of law provisions. Any action pursuant to this Agreement
must be commenced within one (1) year after the cause of action has accrued. This Agreement does not include work
with, or in any area containing, any asbestos or other hazardous substances. Any obligations of AT&T and Customer,
which by their terms would continue beyond the termination, cancellation, or expiration of this Agreement or any Order,
shall survive such termination, cancellation or expiration. Customer agrees that this Agreement, all existing and future
Orders, proposals and quotations are confidential and will not be disclosed without the written consent of AT&T. The
Customer shall not employ, or attempt to employ, any of AT&T's current or former employees with whom Customer has
direct contact in connection with the performance of this Agreement throughout the term of this Agreement and for
twelve (12) months thereafter.
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—Customer acknowledges that Customer has reaa and understands this Agreement and agrees toun y its terms
and conditions. This Agreement, and any Orders, constitute the complete and exclusive statement of the agreement
between the parties, superseding all proposals, representations, and/or prior agreements, oral or written, between the
parties relating to the subject matter of the Agreement. Acceptance of any Order by AT&T is subject to AT&T credit and
other approvals. following Order acceptance, if Customer's credit status has changed materially or the initial credit
approval was based on inaccurate or incomplete information, AT&T in its sole discretion reserves the right to cancel the
Order without liability or suspend the Order until current, accurate and appropriate credit approval requirements are met.
This Agreement is not,binding upon AT&T until executed by an authorized employee, partner, or agent of Customer and
AT&T. The undersigned warrant and represent that they have the authority to bind Customer and AT&T to this Agreement.
This Agreement may not be modified, amended, or superseded other than by a wdtten instrument executed by both
parties.
Customer Name: Cityofivli ni
Address: 444 Seoorr[Ave, 5`' Floor
City: Mrani State: FL Zip: 33130
(Signature)
By: (Printed Name and Title)
BELLSOUTH COMMUNICATION SYSTEMS, LLC
d/b/a AT&T Communication Systems Southeast
By: _
(Signature)
By:
(Printed Name and Title)
Date:
AT&T and Customer Confidential Information
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