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HomeMy WebLinkAboutExhibit 4"Attachment 3" LIMITED WARRANTY AND INDEMNIFICATION (Limited Warranty and Indemnification follow this cover page) WESTNET, INC. LIMITED WARRANTY 1. Westnet, Inc. ("Westnet') is providing its "Limited Warranty" covering the First -In products, parts, components and system being purchased by The City of Miami ("Customer") under this Agreement (collectively, the "Products" and individually the "Product") 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, from the date of installation. If 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, 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. Customer will promptly inspect all Products delivered to it. Any claim against Westnet 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, fires, 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. 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 full 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. INDEMNIFICATION. Subject to Paragraphs 1 and 4, Customer agrees to indemnify, defend and hold harmless Westnet against and from any claims, damages, losses, expenses and liabilities incurred by Westnet as a result of acts or omissions of Customer and its affiliates, employees or subcontractors or in connection with Customer's installation or use of a Product or its other activities. This indemnification provision shall be subject to Florida Statute Section 768.28 and other provisions of Florida law. 6. GOVERNING LAW. This Agreement will be governed by the laws of the State of Florida., 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. 7. 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.