HomeMy WebLinkAboutExhibit 11WESTNET� Inc.
City of Miami
First -in f=ire Station Alerting System
On -Site Maintenance and Toll -Free
Technical Support Statement of Work
October 26, 2009
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Change History
Revision
Revision
Revision
Section Changed and Description
Number
Date
Author
1.0
10/26/09
Westnet
Original document
1.5
10/28/09
Westnet
Reduce annual increase price, clarify
Cust. Responsibilities in #10, provide
labor rate for excluded services, include
typical response times, clarify software
upgrades, and clarify shipping charges.
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Table of Contents
1.
Introduction ........................................ . .................... 4
2.
Assumptions ................................................. I........... 4
3.
Project Deliverables ................................................. 4
4.
Services................................................................. 4
5.
Customer Responsibilities ........................................ 5
6.
Schedule.............................................................. 5
7.
Price.................................................................... 5
8.
Payment Terms ...................................................... 6
9.
Ownership of Data / Computer Software ...................... 6
10.
Maintenance.......................................................... 6
11.
Warranty............................................................... 6
12.
Taxes.................................................................... 6
13.
Place of Performance .............................................. 7
14.
Termination........................................................... 7
15.
Entire Agreement .................................................... 7
Attachment A — Parry Responsibility Detail .......................... 8
Attachment A — Limitation of Liability .................................. 11
Attachment B — Westnet Limited Warranty .......................... 12
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'. INTRODUCTION
This document is submitted to serve as a mutually acceptable Statement of Work (SOW)
between Westnet, Inc. and Miami City Fire Department (herein Customer). This SOW is
intended to clarify purchased services to be provided herein. Functionality or services
not identified within this SOW may, at the discretion of Westnet, be included at additional
cost with appropriate revisions to the SOW. References to Westnet include
subcontractors hired by Westnet to perform the on-site maintenance.
2. ASSUMPTIONS
This SOW and corresponding pricing are based upon the following assumptions:
1. The Customer will complete all Customer Responsibilities enumerated in Attachment
A.
2. This SOW reflects those costs for the described work that can be reasonably
assumed from the information provided. Westnet expressly reserves the right to
make claim for those costs that could not be reasonably assumed and for the
extension of time that could result.
3. PROJECT DELIVERABLES
There are no scheduled deliverables under this SOW. Should the Customer elect to
purchase additional equipment or replacement equipment for damaged or destroyed
units, said equipment is referred to in this SOW as Deliverables.
4. SERVICES
The proposed services include the functionality described below:
1. Westnet, Inc. will provide technical support, on-site maintenance, and 2417 toll-free
technical support on the units purchased under the Services Agreement between the
City of Miami and Westnet dated January 21, 2005, as well as additional units
purchased for Fire Stations 1, 3, 13 and the Fire Boat Station.
2. Remote system maintenance and monitoring. Westnet Systems Group will provide
remote system maintenance, station diagnostic testing, and monitoring of reported
trouble with integrated system operations.
3. Spare equipment and exchange service. Westnet will stock and provide customized
"hot spares". Westnet will stock a Master Control Unit and voice -chips pre-
programmed for Miami Fire Department.
4. One (1) voice -chip reprogramming change on maintained equipment per year.
Additional voice -chip reprogramming is available at the Westnet's hourly rate for
Maintenance Plan customers. Substantial programming changes that require an
engineering upgrade are not included and will be quoted within thirty (30) days of the
requested change. Examples of substantial programming changes are requests for
WEH?MlrIn
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programming that exceeds maximum capacities, changes to the way in which the
alerts are processed, etc.
5. CUSTOMER RESPONSIBILITIES
A. See the Assumptions section above.
B. The Customer will be responsible for those items listed in Attachment A.
Failure to provide or maintain items listed in Attachment A may result in
cancellation of the Services.
6. SCHEDULE
Westnet and the Customer will determine a mutually agreeable schedule for completion
of the Deliverables as described more fully in the Project Deliverables section of this
SOW.
7. PRICE
The price for work outlined in this SOW is valid for ninety (90) days from the date of this
document. The price for implementing this SOW is as follows:
Annual
Maintenance
Period
On -Site Repair
and Maintenance
Toll -Free Technical
Support
Annual Cost
Year 2012
$68,628.00
$6,699.00
$75,327.00
Year 2013
$72,059.40
$7,033.95
$79,093.35
Year 2014
$75,662.37
$7,385.65
$83,048.02
Year 2015
$79,445.49
$7,754.93
$87,200.42
Year 2016
$83,417.76
$8,142.68
$91,560.44
Total 5 Year
Option
$379,213.02
$37,016.21
$416,229.23
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8. PAYMENT OF TERMS
Payment for this SOW will be according to the following schedule:
Payment Milestone
Payment Percentage or Term
Annual maintenance and technical support
Payable quarterly or annually in
cost.
advance.
Upgrades and replacement cost of any
40% down, balance upon completion.
services or equipment not included under
maintenance
Payment is due within thirty (30) days from the date of invoice. Interest charges will be
assessed at a rate of 1.5% per month, prorated on the basis of a thirty (30) day month
will be assessed on delinquent payments.
9. OWNERSHIP OF SPARE EQUIPMENT/ DATA/ COMPUTER SOFTWARE
All spare equipment, computer software, hardware source -code and related deliverables
(programs, data or program enhancements) shall be the property of Westnet, Inc. and, if
applicable, shall be licensed to the Customer pursuant to the Westnet Software License
Agreement.
10. MAINTENANCE
Customer shall be responsible for all on-site maintenance and repairs to all other Miami
City systems. In the event that Customer elects to have Westnet, Inc. perform such
maintenance or repairs, maintenance and repairs will be performed at prevailing rates
plus expenses.
11. WARRANTY
Nothing in this Agreement shall be construed as a Product warranty, or as a change or
modification to the Westnet, Inc. Standard Limited Warranty that was originally supplied
with the Product, which may or may not still be in effect. There is no warranty on the
training services or technical support.
12. TAXES
Unless otherwise specifically stated, prices are exclusive of all federal, state, or local
sales, use, property, gross receipts, valued added or similar taxes based upon amounts
payable to Westnet, Inc. pursuant to this SOW (herein taxes). If taxes are included in a
Quote and there is an increase in the tax rate from the time of the quote to the payment
of the invoice, the Customer will be responsible for the difference between the quoted
tax rate and the actual amount due.
WESTifff
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13. PLACE OF PERFORMANCE
Place of performance is at Westnet for technical support, audio level -setting, and
preliminary trouble -shooting. Customer agrees to provide appropriate work place
accommodations, computer equipment, software and necessary fire station and dispatch
access for Westnet personnel for all on-site work.
14. TERMINATION
Westnet reserves the right to cancel this Agreement at any time, with or without cause,
upon thirty (30) days written notice to the Customer. In such event, Westnet will refund
the price for the Agreement reduced pro -rata based upon the amount of elapsed time
the payment was made prior to the cancellation.
15. ENTIRE AGREEMENT
The terms and conditions of this Statement of Work, the Westnet Limited Warranty, and
Customer's purchase order constitute the entire agreement between the parties with
respect to the subject matter hereof. All prior agreements, representations, statements,
negotiations and undertakings are superseded hereby. No amendment or modification
shall be binding unless made in writing and signed by an authorized representative of
Westnet. If any provision of this Agreement shall be held to be invalid, illegal or
unenforceable, the validity, legality and enforceability of the remaining provisions hereof
shall not in any way be affected or impaired.
EST Inc. Page 7 of 14
ATTACHMENT A
Party Responsibility Detail
City of Miami
CUSTOMER RESPONSIBILITIES:
1. Provide and maintain an operating 24/7 VPN for the duration of the Agreement. The
VPN shall allow Westnet to connect to all fire stations that are equipped with the First -In
Fire Station Alerting equipment. The VPN must be operating and tested with Westnet
before the maintenance commences.
2. Ensure that the Westnet monitor computer in Dispatch has 24/7 access to the VPN and
to all Customer fire stations. Customer will return the Westnet Monitor Computer to
Westnet at the conclusion of the contract term.
3. Provide the make and model number of fire station radio that First -In will be connected
to for the source of dispatch audio. If there are any connections to this radio other than
the outside antenna and the power source, the Customer will provide a diagram showing
the method of connection, connector pins used, signals obtained from the radio and
signals sent to the radio by the fire station equipment.
4. Provide the name, 24-hour telephone number and position of responsible party that can
be contacted about each station's radio communication, public address, CAD and
network equipment.
5. Provide Westnet with code -access to the stations.
6. Provide the make and model number of fire station amplifier, type of connectors used by
fire alerting input, input impedance and the necessary audio level to drive station
amplifier.
7. Provide a description of station control circuits (i.e. lighting, door openers, gas shut-off)
and the number of circuits to be controlled by the Control Remote.
8. Ensure that the Master Control Unit (MCU) at each station is at all times plugged into a
properly operating on-line fulltime UPS. Westnet will exclude from this Agreement the
repair of any equipment not properly connected to the UPS.
9. Ensure that the Master Control Unit (MCU) at each station is at all times plugged into the
First -In Radio Isolation Unit. Westnet will exclude from this Agreement the repair of any
equipment not properly connected to the Radio Isolation Unit.
10. Ensure that the radio antenna, lightening arrestor and lightning protection equipment are
at all times connected to the 5 -ohm earth ground.
11. Notify Westnet of any change in any equipment connected to the fire station alerting
system.
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12. Pay shipping costs and insurance of equipment being returned to Westnet.
13. To obtain service and repair for the Product, contact the Westnet Systems Group at 800-
843-9695. A Systems Group representative will assign a Case Number and provide
diagnostic assistance.
WESTNET RESPONSIBILITIES:
1. Provide 24/7 toll-free technical support and on-site maintenance (described in Section of
the Statement of Work) for the units purchased under the Services Agreement between
the City of Miami and Westnet dated January 21, 2005, as well as units purchased for
Fire Stations 1, 3, 13 and the Fire Boat Station.
2. Average response times shall be as follows:
• Level I — Priority shall mean and refer to a hardware error that renders the
entire system inoperable. Westnet will assign resources within the two
hours. Westnet will continue to work on the problem until the problem is
resolved.
• Level II — Priority shall mean and refer to the detection of a hardware
error for a system module which seriously impairs system operations, but
does not render it "down." Westnet will assign resources within six (6)
hours and continue to work on the problem until the problem is resolved.
• Level III — Priority shall mean and refer to a minor problem, but of
sufficient severity to warrant correction within thirty (30) days.
3. Provide Westnet-owned spare equipment with Customer's programming.
4. Westnet will provide all parts and labor necessary to restore the Product to working
order in accordance with factory specifications in effect at the time the Product was
purchased. Westnet will repair or replace any malfunctioning component of the Product
provided that the malfunction was not caused by an event excluded under this SOW. If
Westnet elects to upgrade the Product rather than repair it, Westnet is under no
obligation to upgrade other Products covered under this Agreement.
5. Provide Smart Station Unit software released upgrades. Requested upgrades will be an
additional charge and are subject to the approval of Westnet.
6. Pay shipping costs and insurance of equipment back returned the Customer.
7. Westnet may subcontract the services provided under this Agreement.
WEST Inc. Page 9 of 14
SERVICE EXCLUSIONS AND CONDITIONS:
1. This Agreement may in the sole opinion of Westnet exclude:
a. Service made necessary by accident, misuse, abuse, neglect, water damage or
improper maintenance;
b. Replacement of missing parts, retrofits or upgrades.
c. Installation, repair or replacement of other systems of which the Product may be
a part;
d. Services made necessary by any external cause, including fire, theft, acts of
God, alteration, problems arising from software or hardware not supplied by
Westnet, power failures, surges or shortages, lightning, damage caused by or
repairs by persons other than those authorized by Westnet to service the
Product;
e. Service on Product purchase under and/or used outside of the fifty (50) United
States and the District of Columbia;
f. Service on Westnet products not specifically named in this Agreement;
g. Service on third party products or service made necessary by use of
incompatible or improperly operating third party products;
h. Service of Product on which the Westnet or First -in label or logo, rating label or
serial number have been defaced or removed;
i. Modifications to the Product not approved in writing by Westnet.
j. Should Westnet elect to provide replacement parts, a hardware or software
upgrade, retrofit, or any other service excluded under this SOW, such an
occurrence shall be considered a one-time event that is not within scope of this
SOW and in no way is Westnet obligated to continue to provide, support or
warranty that service.
2. If Customer or any Customer representative, employee or subcontractor authorizes
Westnet to perform any services excluded under this SOW, Customer agrees to pay
standard repair fees for such work. The hourly rate for services not covered under this
Agreement will be assessed at Westnet's published Time and Materials Rate. The Time
and Materials Normal Business Day Rate at the time of this Agreement is $165.00 per
hour. In no event will the Time and Materials Normal Business Day Rate exceed
$250.00 per hour for years 2012 through 2016.
3. If a reported problem involves a technical support call or on-site visit and the problem is
associated with systems connected to the alerting system (i.e. radio, network, CAD,
public address), Westnet may charge the Customer for labor costs after three technical
support calls or two on-site calls if Westnet deems that the problem does not reside with
the alerting system.
4. Westnet may service Customer -replaceable parts, by way of new or remanufactured
replacement parts to Customer on an exchange basis. Upon receipt by the Customer of
the replacement part, the original part becomes the property of Westnet, and shall be
returned by Customer to Westnet or a Westnet representative. Customer shall pay
Westnet the full retail value of the replacement part if Westnet does not receive the
original part within ten (10) days after Customer's receipt of the replacement part.
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5, Any Westnet-owned spares provided under this SOW are the property of Westnet. Any
damage to a Westnet spare is not covered under this SOW and Customer shall pay for
the repair or replacement of the spare.
LIMITATION OF LIABILITY:
1. NOTWITHSTANDING ANYTHING HEREIN TO THE CONTRARY, THE
MAXIMUM LIABILITY OF WESTNET AND WESTNET'S SUBCONTRACTORS
FOR DAMAGES RELATING TO THE SERVICES RENDERED UNDER THIS
AGREEMENT SHALL BE LIMITED TO THE TOTAL MONIES PAID BY THE
CUSTOMER FOR THE AGREEMENT. THIS LIMITATION SHALL APPLY
REGARDLESS OF THE FORM OF LEGAL ACTION.
2. REPAIR, REPLACEMENT, OR REFUND OF THE MAINTENANCE AGREEMENT
PRICE, ARE THE CUSTOMER'S EXCLUSIVE REMEDY FOR BREACH OF THIS
AGREEMENT. WESTNET DISCLAIMS ALL OTHER WARRANTIES, EXPRESS OR
IMPLIED, REGARDING THE SERVICES, INCLUDING THE IMPLIED
WARRANTY OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR
PURPOSE, AND THE NON -INFRINGEMENT OF THIRD INTELLECTUAL
PROPERTY RIGHTS. SOME STATE LAWS DO NOT ALLOW THE EXCLUSION
OF IMPLIED WARRANTIES. ANY IMPLIED WARRANTIES THAT MAY BE
IMPOSED BY LAW ARE LIMITED IN DURATION TO THE TERM OF THIS
AGREEMENT.
TO THE MAXIMUM EXTENT PERMITTED BY LAW, WESTNET OR WESTNET'S
SUBCONTRACTORS SHALL NOT BE LIABLE TO CUSTOMER FOR INDIRECT,
SPECIAL, INCIDENTAL, OR CONSEQUENTIAL DAMAGES ARISING FROM THE
SERVICES PROVIDED UNDER THIS AGREEMENT, DELAY IN FURNISHING
SERVICES, OR FAILURE TO FURNISH SERVICES, INCLUDING WITHOUT
LIMITATION, LOSS OF DATA OR SOFTWARE, LOSS OF USE OR LOST
PROFITS, WHETHER BASED IN CONTRACT, TORT OR OTHERWISE, EVEN IF
WESTNET HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
SOME STATES DO NOT ALLOW THE LIMITATION OR EXCLUSION OF
INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATIONS
AND EXCLUSIONS MAY NOT APPLY TO THE CUSTOMER. THIS AGREEMENT
GIVES THE CUSTOMER SPECIFIC LEGAL RIGHTS, AND THE CUSTOMER MAY
ALSO HAVE OTHER RIGHTS WHICH VARY FROM STATE TO STATE.
WESTAWT
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ATTACHMENT B
WESTNET, INC.
STANDARD LIMITED WARRANTY
1. Westnet, Inc. ("Westnet') is providing its "Limited Warranty" covering the First -In products,
parts, components and system being purchased by Customer under this Agreement (collectively, the
"Products") as set forth in this Paragraph 1.
A. Westnet warrants exclusively to Customer that each Product sold hereunder will be free from
defects in material and workmanship for a period of one (1) year from the date of delivery of the
Product to Customer or, if installation is performed by Westnet or a subcontractor of Westnet,
from the date of installation. If Westnet or a subcontractor of Westnet performs the installation,
such installation service will be deemed to be part of the Product for purposes of this Limited
Warranty and Westnet's liabilities under this Agreement. Any parts and cabling used in the
installation of a Product are not covered by this Limited Warranty unless Westnet (and not
Customer or a third party installation company) performs the complete installation. Any Product
claimed by Customer to violate this Limited Warranty must be returned to Westnet's designated
service center at the expense of Customer, provided that Westnet will first be given the
opportunity, at its option and expense, to inspect the Product in its installed location and may
elect to waive such return. Westnet will perform all warranty work at its service location only
and not at the Customer's location, unless Westnet agrees, in its sole discretion, to undertake the
warranty work at Customer's location. Westnet's sole obligation and Customer's exclusive
remedy for any breach of this Limited Warranty will be the repair or replacement, at Westnet's
option, of the defective Product. Any replacement or repaired Product will be covered by this
Limited Warranty only for the remainder of the original warranty period. Any replacement or
repaired Product may be made with new or reconditioned components and will be shipped to
Customer at the expense of Westnet. Any replaced Product becomes the property of Westnet. If
Westnet determines that such repair or replacement is not economical or feasible or such remedy
fails of its essential purpose, Customer's exclusive alternate remedy and Westnet's sole obligation
for any breach of this Limited Warranty will be the return to Customer of the purchase price paid
to Westnet for the Product, provided Customer has returned the Product to Westnet.
B. This Limited Warranty applies only if Westnet's testing and examination of the Product discloses
that the alleged defect or malfunction of the Product exists and was not caused by Customer's or
any third person's misuse, negligence, improper installation or testing, or unauthorized attempts
to open, repair or modify the Product, or by accident, fire, water, lightening, power cuts or
outages, power or telephone line transients, other hazards, or acts of God, or by any other cause
beyond the range of intended use in accordance with the Product's normal usage and Westnet's
published instructions. This Limited Warranty will apply only if Customer notifies Westnet of
the defect in writing not more than one (1) year after its delivery to Customer. This Limited
Warranty does not cover physical damage to the surface of the Product after its delivery to
Customer, including cracks or scratches on the LCD or outside casing. This Limited Warranty
does not apply when the malfunction results from the use of this Product in conjunction with
other products, or ancillary or peripheral equipment, and Westnet determines there is no fault
with the Product itself. This Limited Warranty does not apply to any defect or malfunction of the
Product due to any communications software or device Customer may use with the Product.
W" Inc. Page 12 of 14
Customer will promptly inspect all Products delivered to it. Any claim against Wesnriet under this
Limited Warranty or otherwise for damages to or defects in the delivered Products that are
observable in a reasonable visual inspection will be deemed waived unless the claim is made in
writing to Westnet within thirty (30) days after such delivery.
C. EXCEPT FOR THIS EXPRESS LIMITED WARRANTY AND WESTNET'S STATUTORY
WARRANTY OF GOOD TITLE, WESTNET MAKES NO WARRANTIES OR
REPRESENTATIONS, EITHER EXPRESS OR IMPLIED, STATUTORY OR OTHERWISE,
REGARDING THE PRODUCTS COVERED HEREBY, INCLUDING (WITHOUT
LIMITATION) ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A
PARTICULAR PURPOSE, SATISFACTORY QUALITY, CORRESPONDENCE WITH
DESCRIPTION, OR (SUBJECT TO PARAGRAPH 4) NONINFRINGEMENT OF PATENTS
OR OTHER PROPRIETARY RIGHTS. NO EMPLOYEE, AGENT OR REPRESENTATIVE
OF WESTNET IS AUTHORIZED TO MAKE ANY REPRESENTATION OR WARRANTY
ON BEHALF OF WESTNET RELATING TO THE PRODUCTS EXCEPT TO THE EXTENT
SPECIFICALLY STATED HEREIN. WESTNET NEITHER ASSUMES NOR AUTHORIZES
ANY OTHER PERSON TO ASSUME FOR IT ANY OTHER LIABILITY IN CONNECTION
WITH THE SALE, INSTALLATION, MAINTENANCE OR USE OF THE PRODUCTS.
2. LIMITS ON LIABILITY. EXCEPT AS EXPRESSLY PROVIDED IN PARAGRAPHS 1 AND 4, IN
NO EVENT, WHETHER BASED ON BREACH OF WARRANTY OR CONTRACT, NEGLIGENCE,
STRICT LIABILITY IN TORT OR ANY OTHER LEGAL THEORY, (A) WILL WESTNET BE LIABLE
FOR ANY INCIDENTAL, SPECIAL, INDIRECT OR CONSEQUENTIAL DAMAGES OR COST OF
COVER ARISING OUT OF CUSTOMER'S SELECTION, ORDERING, PURCHASE, USE, RESALE OR
DISTRIBUTION OF THE PRODUCTS COVERED HEREBY, OR OTHERWISE, EVEN IF WESTNET
HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, NOR (B) WILL WESTNET'S
TOTAL LIABILITY TO CUSTOMER AND ANY THIRD PARTIES WITH RESPECT TO ANY
SPECIFIC PRODUCT AND ANY RELATED SERVICES EXCEED THE PURCHASE PRICE TO
WESTNET FOR THAT PRODUCT AND SUCH SERVICES. SUCH DAMAGES THAT WESTNET
WILL NOT BE LIABLE FOR INCLUDE, BUT ARE NOT LIMITED TO: LOSS OF PROFITS, SAVINGS
OR REVENUE; LOSS OF USE OF A PRODUCT OR ANY ASSOCIATED EQUIPMENT; COST OF
CAPITAL; COST OF ANY SUBSTITUTE GOODS, EQUIPMENT, FACILITIES OR SERVICES;
DOWNTIME; AND, EXCEPT AS PROVIDED IN PARAGRAPH 4, THE CLAIMS OF THIRD PARTIES
INCLUDING CUSTOMER'S EMPLOYEES OR AGENTS AND ANY PERSONS TO WHOM
CUSTOMER PROVIDES SERVICES.
3. FORCE MAJEURE, SHORTAGES AND OFFSETS. Westnet will not be liable for loss or
damage of any kind resulting from any delay in delivery or failure to supply ordered Products or
otherwise carry out its obligations under this Agreement due to causes beyond its reasonable control, and
no such event will relieve Customer of its obligations to make payments for other deliveries made when
due under this Agreement. Such causes may include, but shall not be limited to, acts of God, the
elements, acts or omissions of Customer, carriers, suppliers to Westnet or civil or military authorities,
fres, labor disputes and other inabilities of Westnet to obtain necessary labor, materials or supplies from
usual sources. If temporarily excused from performance under this Agreement by any such
circumstances, Westnet shall resume its performance as soon as is reasonably feasible. Westnet reserves
the right, in its sole judgment and without liability to Customer, reasonably to allocate its available
production capacity and Product inventories as may be necessary or equitable in the event of any
shortages of production capacity or Products at any time. Westnet may offset against any amounts owed
by Westnet to Customer under this Agreement or otherwise any credits or amounts that are owed by
Customer to Westnet under this Agreement or otherwise.
'" sin . Page 13 of 14
4 INFRINGEMENT.. Westnet agrees to defend Customer against, and pay any damages awarded
against Customer and direct expenses, including attorneys' fees, reasonably incurred by Customer (but
excluding any lost revenues, lost profits or other consequential economic damages of Customer) as a
result of, any action brought against Customer, if and to the extent the action is based on a valid claim that
any Product delivered to Customer under this Agreement infringes another person's patent, copyright,
trade secret or trademark. Westnet's obligations under this paragraph will be conditioned upon Customer
promptly notifying Westnet in writing of the existence of any such action, giving Westnet frill authority to
conduct the defense and settlement of the action, at Westnet's expense and with counsel of Westnet's
selection, and cooperating fully with Westnet and such counsel. If any Product becomes, or in Westnet's
opinion is likely to become, the subject of an action for such infringement, Westnet may procure for
Customer the right to continue using the Product or replace or modify it to make it noninfringing,
provided such replacement or modification does not affect the performance or value of the Product to
Customer in a materially adverse manner. Alternatively, Westnet may return to Customer the purchase
price paid to Westnet for such Product. and Customer shall return the Product to Westnet at Westnet's
expense. Westnet will not have liability for, and Customer will defend Westnet against, and pay any
damages awarded against Westnet and direct expenses, including attorneys' fees, reasonably incurred by
Westnet (but excluding any lost revenues, lost profits or other consequential economic damages of
Westnet) as a result of, any action is brought against Customer or Westnet, if and to the extent that the
action is based on a valid claim that Westnet's compliance with Customer's design or specifications for a
Product or Customer's use or combination of the Product with any material or process not acquired from
Westnet (if the infringement would not have resulted from use of the Product without such material or
process) infringes another person's patent, copyright, trade secret or trademark. The foregoing states
Westnet's entire liability with respect to any infringement of patents, copyrights, trade secrets, trademarks
or other proprietary rights relating to the Products.
5. GOVERNING LAW. This Agreement will be governed by the Commonwealth of Virginia,
excluding their conflicts of laws principles. The United Nations Convention of Contracts for the
International Sale of Goods is hereby excluded in its entirety from application to this Agreement.
6. SEVERABILITY. Any provision of this Agreement that is prohibited or unenforceable in any
jurisdiction shall be ineffective to the extent of such prohibition or unenforceability without invalidating
any other provisions of this Agreement, and any such prohibition or unenforceability in any jurisdiction
shall not invalidate or render unenforceable such provision in any other jurisdiction.
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