Loading...
HomeMy WebLinkAboutMaster AgreementBBMA Agreement No. FLO3-D326.00 BELLSOUTH BUSINESSSMMASTER AGREEMENT 1. This BellSouth Businessily' Master AgMeMent ("Master Agreement") is made by BellSouth Bualness Systems, Inc. ("BBS") on behalf of the BellSouth Companies' ("Belt5outh7, end The Clty of Miami, a municipal corporation of the State of Florida ("Customer") and will govern an Orders for Equipment and/or Services, with the exception of Regulated Services which shall be governed by the terms of this Master Agreement and the Regulated Services Attachment 2 BellSouth Company Obligations -The Parties agree that each BellSouth Company Is responsible only for the provision of those Services and Equipment provided by that BellSouth Company under the terns and conditions specifically identified in this Agreement and In the Order or Attachments (and any supplements thereto) applicable to such BellSouth Company. that the dudes and responsibilities of each BellSouth Company ere several, and that the Order or Attachment under which a BellSouth Company provides Equipment and Services is not affected by the terms and conditions contained In any other Order orAttachnlent to this Agreement. 3. Term of Agreement —The term earls Agreement commences on the date on which the Agreement is executed by BBS on behalf of the BellSouth Companies (Effective Date"). The term for any Service or product are set forth in the applicable Order orAltat.3vment If no term is specified In such Order or Attachment, Services wig be provided on a month -to -month basis at the then prevailing month -to -month rates for Services until either Party gives the other of least thirty (30) days written notice of termination of Services. 4. Definitions • 4.1 'Data Equipment and Data Services' - tho 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, implementellon, project management, monitoring and maintenance of such networks) provided try BellSouth under thls Agreement as listed in an Order. 4.2 "Equipment" - all communications and information systems products purchased from or serviced by BellSouth under an Order, including Data Equipment unless otherwise noted. Equipment also includes Software, as further defined below. 4.3 "implementation" - (a) far Equipment Installed by BellSouth, 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. 4.4 "Major Failure" - the failure of Equipment that substantially interferes with the normal conduct of Customer's business. 4.5 'Minor Failure" - any failure of Equipment other than a Major Failure. 4.6 'Order' - any request for Equipment and/or Services placed by Customer pursuant to this Agreement Or an Attachment and accepted by BellSouth. 4.7 'Regulated Servces' - regulated telecommunications services. 4.8 'Services' - work performed by BellSouth pursuant to this Agreement including but not limited to the following: (a) Warranty and Maintenance Services, (b) Installation Services, (c) Electrical Damage Repair Service, (d) Data Services, (e) various forms of dial -up and/or dedicated Internet protocol routing, (f) terminal server services. (g) Internet access, (h) gateway, (I) network consutting, design, monitoring. management and maintenance, p) web site design, (k) development and hosting, (1) managed equipment services, (m) managed network and security services, (n) e-business Center services, (o) Regulated Services. and (p) other cOMmunlcatlons-related services. 4.8 "Software" - any set of one or more computer programs which is composed of routines. subroutines, Concepts, processes. algorithms, formulas, ideas, ar know-how severally owned by or licensed to BellSouth 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. 8. Prices And Payment- 5.1 Prices, fees, charges, or rates will be as sat forth in the Order, Statement of Work, or In BellSouth Company ram schedules or pricing guides In effect from tlmo to time, copies of which shall be provided to Customer. For Regulated Services, the prices, charges and rates shag be as set forth In the Regulated Services Attachment and all documents attached thereto. Except as provided below, Customer will be invoiced monthly for all Services with the exception of Regulated Services. it Customer is not In Defaue, Customer may request in writing changes to Customer's configurations or Services hereunder at prevailing market rates, which may result In an adjustment to the total price or schedule or other terms of the existing Order, or an application of a reasonable restock charge for any deleted items. 52, If any payment due hereunder Is not made by the due date, any late payment/interest charges will be computed In at one and one- half percent (1 '4%) per month, or the hlghest amount permitted by law, whichever is less. Late payment charges for Regulated Services will be charged In accordance whh the applicable tariff or Contract Service Arrangement ('CSA7. In the event of a good faith dispute between Customer and BellSouth as to the correctness of Items appearing on BellSouth's Invoice to Customer, CuStomor may withhold payment of the disputed Items only. e, Taxes — Unless alherwise provided In an Attachment, all charges are exclusive of applicable federal, state or local taxes, and fees. BellSouth may Invoice and Customer agrees to pay to BellSouth amounts equal to any taxes resulting from this Agreement or any activities hereunder, including any and all sales and use taxes, duties, ar levies imposed by any authority, government, or government agency, exclusive of taxes on BellSOtrth'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 she. `BellSouth Business is a rervlce mark of BellSouth Intellectual Prupeny Corporation = BellSouth BSc, Inc., BellSouth Communication Systems. LLC, BellSouth Long Distance, Inc., IlellSauth MKS, Inc., BellSouth Telecommunications, Inc. 1 of 8 CONFIDENTIAL/PROPRIETARY — NOT FOR DISCLOSURE OUTSIDE BELLSOUTH WITHOUT WRITTEN PERMISSION TinMN) r rift rnr rnrtut] rl nnmlrnnn nrnArt nnnn r it Inil rlr_nnn rn rnr BBMA Agreement No. FLO3-0328-00 7. CUStomor ReeponsiblilUee — 7.1 As between Customer and BellSouth, Customer is responsible for (a) assuring that its authorized users comply with the provisions of These terms and that unauthotlzed persons do not geln access to or use the Services ar Equipment through user names. passwords, or other Identifiers assigned to Customer pursuant to these terms: (b) providing any equipment and software that may be necessary for the use of the Services by Customer (In addition to any Equipment and Software that may be placed at Customer's location(s) or otherwise provided or used by BellSouth for Its provision of the Services); (c) timely payment of all charges for usage of the Services applicable to its account whether or not by authorized users or for authorized purposes; and (d) performing Ms other obligations under these terms. Custamer shall not use the Services or Equipment In any way that would be or would assist any third party to be In violation of any law, these tarots, or any Acceptable Use Policy applicable to the Services or Equipment. Customer shall not transmit or publish on or over the Services or Equipment any Information, software, or other content that violates ar infringes upon the tights of any others or use the facilities and capabilitles of the Services or Equipment to conduct any business or activity or solicit Ma performance of any activity that is prohibited by law. Customer shall comply with all applicable laws, rules, and regulations In connection with the Services and Equipment 72 Customer shall provide. at no cost to BellSouth. end during BellSouth's regular business hours, timely access to Customer locations, appropriate workspace, facilities, Information and staff resources. clerical support (e.g. ell relevant Customer specific graphics or Information). data reproductian services, and other services at Customer's location as am reasonably requested by BelSouth for purposes of factb1a ing BellSouth's provision of Services or Equipment to Customer. If pre -scheduling Is required for BellSouth personnel to perform on -site Services, Customer will Inform the BellSouth Project Manager prior to the scheduled performance date. Should any such Customer requirements not be provided promptly, Customer is responsible for any resitting delays, redispatch charges, or added costs. Tho accuracy of Customer -provided Information is solely Customer's responsibility. Customer shall provide a safe on -site working environment free of asbestos or hazardous materials or conditions, and all inquired AC electrical power and communications receptacles at the locations needed for the Equipment and Services supplied. The installation toeatlon must meet all rmanufadurer environmental specification requirements. Customer Is responsible for providing any special Utts, ladders. borings, or other Items required as a result of non-standard Customer site Conditions. tt. Other Services and Software. The Services may Include dedicated or dial -up Internet Protocol connectivity to BellSouth's local Internet networks and to the global Internet, es wail as access ar connectivity to any of the Information sources or services that may be provided by BellSouth or be available from other service providers participating In, connected to fir accessible through BellSouth's Serv)Ces or the global Internet but which are not part of the Services being purchased hereunder. Separate charges may be applicable to some of these additional services and may appear on Customer's bill from BellSouth, or they may be billed to Customer separately by the providers of such services. A third party Global Service Provider (GSP) providee a roaming capability In conjunction with dial -up BellSoulh Business Internet Services that allows users (subject to any applicable roaming surzhurge) to dial the local numbers of GSP-provided POPs to reach the BellSouth Business Internet Service white outside of the BellSouth Business Internet service areas. If Customer or Its users elect to use such GSP local access (or Customer purchases a service plan which has such GSP local access included In the price), Customer will be charged by the GSP and may see a separate charge for such service on Its bill_ Such GSP local access service Is provided by the GSP on the GSP's terms and conditions and at the prices or surcharges set forth In the applicable Customer's Order. Use by Customer end any individual authorized users of Customer of BellSouth's other services and any browser or other Software provided by BellSouth shall be subject to BellSouth's standard terns and conditions for such services as well as the applicable software license terms that are provided with such Software. 9, Equipment 9.1 Equipment Orders - Customer may place Orders for Equipment andlor Services pursuant to this Agreement by: (a) BellSouth orderfoml, (b) telephone order to BeM5outh for non -engineered move, add, or change work, or Services, in either case not to exceed ten thousand dollars (510,000), (c) Customer purchase order or letter of purchase request or (d) facsimile or electronic transmission, for the purposes of which Customer agrees that (I) BellSouth and any third -party lender or lessor may rely upon any facsimile copy, electronic data transmission or electronic data storage of the Agreement or any Order, and (II) such facsimile copy. electronic data transmission or electronic data storage will be deemed an original and the best evidence thereof for ail purposes, including, without limitation. all evidenUary purposes before any arbitrator, court or other adjudtcatory authority. Each Order, If confirmed or accepted by BellSouth, shall constable a separate purchase end. except for any provisions which are specifically excluded or modified In the Order, each Order shall automatically incorporate all the terns and conditions of this Agreement, and any and all standard (such as pmprinted or computer generated) terns and conditions on any Customer purchase order forts or other Customer documents shalt be deemed deleted. 1f Customer desires BellSouth Invoices to reference Customer's purchase order ar other number for conventence, Customer may include such number in each Order. Each Order shall also Include any mutually agreed Statements of Work 9.2 Unless otherwise staled in the applicable Order, Customer's payment for Equipment and related Equipment Services Is Invoiced and due as follows: (a) Maintenance Service- monthly In advance, (b) Equipment or other Orders - 20% of the Total Equipment Price with Order. SO% at Equipment delivery and 30% at Implementation, (c) Installation Servlxs —100% upon the completion of the Installation Services. Expedited Equipment Orders may involve additional charges. 9.3 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) beginning at Implementation at Customer's individual site tocatlons. Data Services shall be Invoiced and payable upon Urplomontation per Customer's individual site locations. Other Services will be Invoiced monthly For usage of Services unless otherwise provided in the Order. Customer shall pay the amounts agreed to and invoiced by BellSouth by the due date stated on the 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. 2 of 8 CONFIDENT1AUPROPRIEfARY — NOT FOR DISCLOSURE OUTSIDE BELLSOUTM WITHOUT WRITTEN PERMISSION rTn lrnn r TI J rnr rntivtiil n n n u, n n n TT, n n n n n n n c a l m I -... 1, n n., en ,. ., BOMA Agreement No. FLa3-D326-oo 9.4 Risk of loss or Damage for Equipment - All risk of loss or damage shall pass to Customer as to each Item of Equipment on the date of delivery to the installation site, except loss or damage caused by BellSouth. 9.5 Security Interest in Equipment - Customer grants BellSouth a purchase money security interest in each item of Equipment Customer agrees to exet.rlo any documents reasonably requested by BellSouth to protect andlorpeffect BellSouth's sewdty Interest 9.6 Limited Warranties - (a) BellSouth warrants that at Implementation, and for the duration of the warranty pedod referred to below, each item of Equipment, except for Data Equipment or as otherwise provided heroin or In an Order, will function substantially in accordance with the manufacturer's published specifications. provided it is net damaged as set forth in Section 9.13 and is used acoarding to standard operating Instructions Issued by the manufacturer or BellSouth. Unless otherwise stated In the Order, the warranty period for Equipment installed by BellSouth is twelve (12) months from implementation. CERTAIN MISCELLANEOUS EQUIPMENT IS SOLD "AS IS" AND WILL CARRY NO WARRANTY WHATSOEVER FROM BELLSOUTH. Any warranty service for 'As Is* Equipment will be provided directly by the manufacturer of such Equipment. Such Equipment shall be dearly indicated an the applicable Order as Manufadunst's Direct Warranty Service ("MDWS"). BELLSOUTH OFFERS NO MAINTENANCE SERVICE OR WARRANTY FOR THESE PRODUCTS. The warranty period will not be enlarged by BellSouth's repair or teplaoernent thereof. (b) Data Equipment and Data Services Warranty Disclaimer - BELLSOUTH DOES NOT IMPLY OR EXPRESS ANY BELLSOUTH WARRANTY WHATSOEVER FOR DATA EQUIPMENT OR SERVICES PROVIDED. Customer's sale warranty is from the manufacturer. If Data Maintenance Service is not listed en an Order, any warranty cJalms that may arise are solely the responsibility of Customer to pursue with the manufacturer. • (c) 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 BellSouth for the extension of the warranties to such purchaser, user, or assignee. 9.7 Warranty Service far Equipment - (a) Ful Warranty Service ('FWS'): BellSouth agrees to provide, except for Data Equipment or as otherwise set forth heroin or In an Order, Warranty Service to keep the Equlpmentln, or to restore the Equipment to, good working order In compliance with the manufacture specifications. If neither repair nor replacement are reasonably available t0 BellSouth, then BellSouth may elect Instead to return the price paid to BellSouth for the purchased Equipment, or the one lime 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 unscheduled, on -call remedial maintenance during warranty coverage. Replacement or additional parts and Equipment may bo either new or reconditioned and equivalent to new In performance. The replaced items become the properly of BellSouth. (b) Response Times for Full Warranty Service: BellSouth will use reasonable efforts to respond to Customer's request forWarranty Service for a Major Failure within two (2) hours, twenty-four (24) home a day, seven (7) days a week, from the time BellSouth first receives Customer's request With respect to a Minor Failure, BellSouth will use reasonable efforts to respond to Customer's request forWarranty Service during BellSouth's regular working hours, Monday through Friday, excluding holidays observed by BellSouth, within eight (6) business hours from the Lerte BellSouth first receives the Customer's request. (c) Depot Warranty Service CDVVS"): BellSouth will replace defective Equipment on an exchange bests. Customer agrees to return defective Equipment to BellSouth for depot eerviCe within three (3) days after receipt of replacement Equipment from BelSoulh. if BellSouth has not received such defective Equipment within tan (10) days, Customer agrees to pay for the replacement Items. 9.8 Installation of Equipment — (a) if ordered by Customer and agreed by BellSouth, BellSouth will provide Installation Services to Install the Equipment Customer agrees to provide, in a timely manner, Customer design information and a suitable Installation environment as stated in any applicable BellSouth Installation manual, or as otherwise specified by the manufacturer or BellSouth. BellSouth will make reasonable efforts to meet the date for installation set forth on the Order, and will notify Customer as soon as eradicable of any delay. Customer agrees to notify BellSouth as soon as practicable IF Customer requires postponement of any installation. If Customer or Equipment specifications require non-standard wiring or other work, Customer will Incur additional Instatlatlon charges. Each item of Equipment purchased under thls Agreement will be Installed as specified by BellSouth and the Equipment manufacturer. If the Equipment is not to be Installed by BellSouth, Customer warrants that all Equipment Is to be Installed by Customer's manufacturer certified employees at its premises and is not for resale. (b) If the Implementation of any Order is delayed, by no fault of BellSouth, for one hundred eighty (160) days or more from the acceptance of the Order by BellSouth or ninety (90) days ram the orlglnal agreed implementation date, BellSouth will have the following options: (i) revise the price to reflect then current BellSouth pricing, (If) require payment for Equipment delivered and Services perforated t0 that tkne, or (NI) cancel the Order and coiled reasonable termination charges (manufacturers restocking charges and other out of pocket costs, non -recoverable materials and labor expended, plus lost margin). 9.9 Maintenance Service for Equipment — (a) If ordered by Customer and agreed by BellSouth, Maintenance Service coverage for Data Equipment commences at Implementation and Maintenance Service for voice Equipment Commences on expiration of warranty. The coverage hours for Maintenance Service will be es listed In Section 9.7(b) above, or as agreed In the Order. Unless included in the Order, Customer will provide an analog modem at each site for remote diagnostics and/or repair and a dedicated analog telephone line within fifteen feet of the Equipment. Maintenance may be provided via repair, replacement, or upgrade of defective Equipment at BellSouth's option. if on - site manufacturer service Is required, It will be provided at BellSouth's then current commercial rates. For all Equipment to be maintained by BellSouth. Customer represents It has paid the epproprlate manufacturer license fee, and will reimburse BellSouth for any unpaid license fee if payment is demanded by the manufacturer. (b) Except for Data Equipment Maintenance Service or as specified in the Order, the terms and conditions of Sections 9.7(a) and 9.7(b) shall apply to Full Maintenance Service rFMS"), and those of 9.7(c) for Depot Maintenance Service ("DMS"). If equipment Is not under BellSouth Warranty or Maintenance Service at the time Maintenance Service Is ordered hereunder, or if additional items are added by Customer or a third party, BellSouth will Inaped the equipment and perform any necessary repairs at BerlSOuth'e then current rates for mileage, labor, and materials. 3 of a CONFIDEN11AL/PROPRIETARY— NOT FOR DISCLOSURE OUTSIDE BELLSOUTH WITHOUT WRITTEN PERMISSION TIAI re BMMA Agreement No. FLO3.D326.40 (c) Maintenance Service charges will be set forth in the applicable Omer. Unless otherwise set forth in the Order. the Told Maintenance Chorge Is an annual Charge payable In monthly installments_ If at any lime additional Equipment Ls added to the original Equipment, a new pro -rated charge, computed at BellSouth's then current rules, will be added to the Total Maintenance Charge to reflect the additional Equipment being serviced, Formullhyear Orders, the rates used to calculate the Maintenance Service Charge may be Irreeased 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. BellSouth mey adjust the monthly maintenance charge litho Equipment is moved to a different location. Customer's payment Is due upon receipt of BelISouth's invoice(s). (d) 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. 9.10 Term of Maintenance Service for Equipment - (a) The term of the Maintenance Service, if Ordered , shall begin on either (I) the day following the last day of the warranty period for the applicable Order, or (ii) 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 9.9(b) above. (b) THE INIT1ALTERM 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 BELLSOUTH'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. 9.11 Additional Equipment Services— (a) Equipment Drop Ship - For drop ship Orders, BellSouth will ship Equipment to the Customer's specified and agreed tocatlon(s). BellSouth provides no assessment, systems design, staging, implementation, Installation or project management for drop ship EquipmenL (b) Assessment —If Assessment is listed in an Order, BellSouth will work with Cuslamers representative(s) in evaluating Customer requirements for Equipment and Services, and render an evaluation report, delineating those requirements. (c) Systems Design — If Systems Design Is listed In an Order, BellSouth 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. (d) Configuration, Staging and Implementation — If Configuration, Staging and Implementation aro listed In an Order BellSouth wil assemble, configure and test the Equipment BellSouth's technical staff adheres to the original equipment manufacturer's (OEM) recorrviendations for configuration and installation. The Equipment will be delivered to the specified Customer IocaUon(s) and Installed. BellSouth wil also test each system, according to procedures/methods listed In the Order. BellSouth will provide to Customer the written resuks of aN testing conducted by BellSouth. Upon successful Completion arresting, BellSouth 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 wilt be perforated at BeltSouth's option and at BelLSouth's then -current rates. (e) Project Management— If Project Management Is listed in an Order, BellSouth will assign a qualified Project Manager la provide a single point of contact and coordinate al activities to be delivered under the terms of that Order. BellSouth may replace the BellSouth Project Manager at any time by written notice to Customer. (f) Network Monitoring Services —Performance Advisor Plus — I( Network Monitedng is listed In an Order, BellSouth will provide Customer. (I) Fault Monhoring with IP Ping and M113 poling; (11) Manthly fault and performance reporting; (lie Muhl -Vendor trouble isolation/coordination; and (iv) Proactive performance monitoring. Customer will provide: (i) Network diagram and applicable circuit ID's; (A) Addressing and naming conventions; (ii) SNMP and TI readrwdte access; (hi) Analog modems at each site for remote diagnostics and/or repair, (v) Dedicated analog telephone fine. within fifteen feet cline Installed router, (v) Detailed contract Information for all circuit and hardware maintenance providers, Including emergency actress end after-hours Contacts; (v11) Letter of Agency naming BellSouth for the purpose of opening and tracking trouble tickets with respeCtfve suppliers; (vlll) A 64K Frame Relay PVC with 16K CIR management Ink between Customer's host router and BellSouth's monitoring !acidly in Atlanta, Georgia; and (Ix) Additional requirements as agreed In a Scapa of Work. 9.12 Equipment Key System Electrical Damage Repair Service — (a) WHERE AVAAABLE, AND IF ELECTED BY CUSTOMER, CUSTOMER AGREES TO PAY A PER STATION RATE IN ADDITION TO NORMAL MAINTENANCE RATES DURING THE WARRANTYAND MAINTENANCE PERIODS, AND BELLSOUTH WILL EXTEND MAINTENANCE TO COVER REPAIR OR REPLACEMENT OF ALL BELLSOUTH PROVIDED KEY SYSTEM 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 VAUD MAINTENANCE ORDER IS IN EFFECT. THiS SERVICE iS ONLY AVAILABLE WITH WARRANTY OR MAINTENANCE SERVICE AND CANNOT BE PURCHASED SEPARATELY. (b) In all situations involving damage to BellSouth provided key system or key system related Equipment due l0 lightning or power surges, provided the Electrical Damage RepalrService has been Invoked. BellSouth's SOLE AND EXCLUSIVE LIABILITY will be repair or replacement of the damaged Equipment with BellSouth provided EquipmenL In no event will the costs exceed the current market value of the damaged key system and key system related Equipment provided by BellSouth. 9.13 Warranty and Maintenance Service Exdusions for Equipment - BellSouth shall tespond to any service call requested by Customer, however, Customer adcrtowledges that Warranty and Maintenance Services do not cover damages to or failure of the Equipment or increases in service tine resulting from causes other than defects In or the normal wear and tear of the Equipment including, but net limited to, misuse or negligent operation of the Equipment, accident theft, unexplained lose, lightning, electrical power surge, fire, food, wind, ads of God, war, terrorism, failure of Customer to maintain a proper operating environment, or repair. relocation or alteration of the Equipment by anyone other than BellSouth or its designated agents. Warranty and Maintenance Services do not cover any Customer provided cable or equipment unless staled on the Order. Any slte visits or repairs necessitated by any of these excepted causes made by BellSouth shall be at the solo expense of Customer, and Customer agrees to bear the cost of all labor and materials at BellSouth's then current rates. 4 of B CONFIDENTIAL/PROPRIETARY — NOT FOR DISCLOSURE OUTSIDE BELLSOUTH WITHOUT WRITTEN PERMISSION TTA I! AA 11 Teri IA! rAt' (rmrh A Ahlf l/VAA T, I/I A Anhnrt RSMA Agreement No. FLO3-0326-00 9.14 Software Ucere • (a) 5oflware suppliers Ilcense Software on a nonexclusive basis to BellSouth, and BellSouth also develops Software or has Software developed for ri by third parties. All such Software le and will remain the property of BellSouth or its third party suppliers. BellSouth, with respect to BellSouth developed Software and to the extent authorized under the supplier licenses, grants to Customer a personal, nontronsferable and nonexdusivo sublicense (without the right to further sublicense) to use the Software, subject to the following terms end conditions: (b) Customer shall (I) use the Software only In conjunction with the particular Equipment forwhich the Software was Initially furnished; (II) use the Software solely for Customer's Internal business purposes; (lit) not reverse engineer, decametre, disassemble, reverse translate or otherwise translate the Software Into human readable form, nor reproduce the Software except for arrhtval purposes; (iv) return the Software, together with all copies thereof, or with BellSouth'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 far which the Software was furnished; and (v) keep in confidence all Information relating to Software and treat such Information es the exclusive properly and lade secret of BellSouth or such suppliers. (c) 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 reseeding use and confidentiality contained in this Section 9.14. (d) In addition to the above, where BellSouth's supplier require Customer to sign or otherwise agree to separate licensing provisions directly with the supplier, Customer shall comply with such licensing provisions. 10. Limitation and Disclaimer of Warranties - EXCEPT AS PROVIDED IN SECTION 9. NEITHER BELLSOUTH NOR ANY OF ITS UNDERLYING SERVICE PROVIDERS. INFORMATION PROVIDERS, LICENSORS, EMPLOYEES, OR AGENTS WARRANT THAT THE SERVICE WILL BE UNINTERRUPTED OR ERROR FREE OR MAKE ANY WARRANTY AS TO THE RESULTS TO BE OBTAINED FROM USE OF THE SERVICE. THE SERVICE IS PROVIDED WITHOUT WARRANTIES OF ANY KIND, EITHER IMPRESS OR IMPLIED, INCLUDING BUT NOT UMITED TO WARRANTIES OF TITLE OR IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE OR OTHERWISE, OTHER THAN THOSE WARRANTIES (IF ANY) THAT ARE IMPLIED BY AND INCAPABLE OF EXCLUSION, RESTRICTION. OR MODIFICATION UNDER THE LAWS APPUCABLE TO THIS AGREEMENT. ALL SUCH WARRANTIES BEING EXPRESSLY DISCLAIMED. 11. Remedies and Damages Limitations -The following funitatlons of Lability represent a material Inducement to the Parties to enter Into this Agreement and to perform Orders at the staled price. If edddionol risks or undertakings were contemplated by BellSouth, 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 11.1 BellSouth shall not be responsible for any use of the Services ar Equipment by Customer, lta au hor1ied users, or any third party. Without limiting the generaity of the foregoing, BellSouth shall not be llabte to Customer ar any of Customers users for any lost profits or other consequential damages, even if BellSouth has been advised of the possibility of such damages; any claim or other action against Customer by any third party (except as set forth In the section betaw on infringement): any ad or omission of any other entity furnishing products end services that are used by Customer In connection with the Services or Equipment or for failure of any products or services provided by Customer, or any damages or losses caused by the fault or negligence of Customer or Customer's failure to perform Customer's responsttai itles. 11.2 NEITHER BELLSOUTH NOR ANY OF ITS UNDERLYING SERVICE PROVIDERS, INFORMATION PROVIDERS, LICENSORS, EMPLOYEES, OR AGENTS SHAU. HAVE ANY LIABILITY FOR INCIDENTAL, CONSEQUENTIAL, ECONOMIC, PUNITIVE, INDIRECT OR SPECIAL DAMAGES OR LOST PROFITS, LOSS OF USE, OR TOLL FRAUD SUFFERED BY THE CUSTOMER OR ANY OTHER PARTY AS A RESULT OF BELLSOUTH'S PERFORMANCE OR FAILURE TO PERFORM UNDER THIS AGREEMENT, REGARDLESS OF WHETHER OR NOT BELLSOUTH HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. CUSTOMER EXPRESSLY ACKNOWLEDGES THAT THE PROVISIONS OF THIS SECTION SHALL ALSO APPLY TO ALL CONTENT OR OTHER SERVICES AVAILABLE THROUGH THE SERVICE OR EQUIPMENT. CUSTOMER AGREES THAT CUSTOMER WILL NOT IN ANYWAY HOLD BELLSOUTH RESPONSIBLE FOR ANY SELECTION OR RETENTION OF, THIRD PARTIES, EXCEPT FOR ITS SUBCONTRACTORS IN CONNECTION WITH THE SERVICE OR EQUIPMENT. 11.3 In the event that a court should hold that the limitations of liabilities or remedies available as set forth In these Terms, or any portions thereof, are unenforceable for any reason, or that any of Customer's remedies under these Terms tail of their essential purpose, Customer expressly agrees that under no dreumstances shal BellSouth's total liability to Customer or any pony claming by, through or under Customer for any cause whatsoever, and regardless of the form of action, whether In contract or in tort, Including negligence, In the aggregate, exceed the amount of charges paid by Cuslnmer for use of the Services or Equipment during the twelve-month period preceding the date such claim fist erase. 11.4 Customer's sole remedy for any failure or non-performance of the Services (Including any associated Equipment, Software or other materials supplied In connection with the Services) shall be (a) for BellSouth to use commercially reasonable efforts to effectuate an adjustment er repair of the Services or Equiprent and, in the event such failure or non-performance reruns In Service or Equipment downtime that exceeds the period of line speared in the applicable servlue level agreement portion Of any) of any applicable Order or Service Desdiption, to receive a refund or credit of or against any charges otherwise payable for the Services or Equipment for the period of seNiCe downtime as pravlded for In the applicable service level agreement portion (if any) of any applicable Order or Service Description, or (b) If such failure or non-performance results In Service or Equipment downtime or degradation so substantial as to render the Service essentially unavailable to or unusable by Customer for normal use, to terminate the Services or Equipment for default by BelSouth In the manner provided in these terms, Unless specified la the contrary In any applicable service level agreement portion of any applicable Order or Service Description, the maximum credit for service downtime or other failure shall not exceed the total monthly bill to the Customer for the Services or Equipment for the month in which such downtime or failure occurs_ 12. Termination and Default - 12.1 BellSouth may, at fs sole discretion, terminate any Customer Order and discontinue Customer's access to and use of the Services, If (a) Customer fails to pay any amount within 10 days atter written notice that the same is delinquent; or (b) Customer breaches any of tho material terms, conditions, obligations, or representations contained In these Terms, except for applicable Acceptable Usa Pollees, and does not cure such breach 5 of B CONFIDENTIAUPROPRIETARY — NOT FOR DISCLOSURE OUTSIDE BELLSOUTH WITHOIJTWRETTEN PERMISSION TN)/111lft'I Tle1 Cflf (Vs(vurl nnntrrnnn nrnnnnnnn It fnntlt,nnr7 fn nnr BBMA Agreement No. FLA3-0326-00 within thirty (30) days of notice of such breach; or (c) Customer becomes the subject of a voluntary or Involuntary bankruptcy, Insolvency, reorganization, or liquidation proceeding, makes an assignment for the benefit of creditors, or admits In writing its Inability to pay debts when due, or (d) Customers equipment or use of the Services interferes with the Services or any other user. Although BellSouth reserves the right to immedialeiy suspend or terminate Service In the event of repeated or flagrant violations of its Acceptable Use Policy, incorporated herein by reference. BellSouth's preferred course of action under this Section 12.1(d), Is to allow Customer an opportunity to cease such Interference before Service termination occurs. In addition, it BellSouth reasonably determines that the continuation of the Senecas has become Impractical or unfeasible for any technical, legal, or regulatory reason, BellSouth may terminate the Services with at least thirty (30) days prior notice if reasonably practical. 12.2 If Customer has elected a minimum tern for the Services and then minceis Its Services or any portion thereof, or has Its Servlcee or any portion thereof terminated as provided above, prior to the expiration or such minimum turn, Customer shall be obligated to pay BellSouth a termination charge equal to the amount (If any) specified In the applicable Order, otherwise the termination charge shall be equal to 100%, of the total monthly charges (other than variable usage charges) that would have become due for the remainder of the scheduled minimum tern if such cancellation had not occurred. Such termination charge shell be paid to BellSouth within thirty (30) days alter such cancelation by Customer. 12.3 If BellSouth breathes any of these material Terms and fails to cure such breath within thirty (30) days ellerwritten notice of such breach, Customer may (as Its sole remedy except for any credits that fray be payable for downtime as provided elsewhere heroin) terminate It's the affected Services by written notice to BellSouth, without obligation for any early termination charges otherwise payable hereunder. 13. Force Majeure - BellSouth shalt not be responsible for any delay ar failure in delivery or perfernarce of any of its duties hereunder due lo ads of God, acts or omissions of any network provider or any other occurrence commonly known es force ma)eure, Including weather, war, riots, ads of • lermrism, embargoes, strikes, or other concerted ads of workers, casualties or accidents, or any other causes or circumstances whether of a slmUar or dissimilar nature to the foregoing that prevent or hinder the delivery of the Services.' BellSouth may cancel or delay performance hereunder for so long as such performance is delayed by such occurrence or occurrences, and In such event BellSouth shall have no liability to Customer. 14. Notices -All notices under fhb Agreement will be In writing and will be deemed to have been duly given if delivered personally or by courier service, faxed ar mailed by registered or certified mail, retum receipt requested, postage prepaid, to the Parties at the addresses set forth below. All notices under this Agreement that are addressed as provided herein will be deemed given (a) upon delivery, If delivered personally or by courier service, (b) when confirmed, If delivered by facsimile, and (c) on the fifth (5th) business day after the day It is deposited in a regular depository of the United States mall, If delivered by mail In the manner described above. Either Party may change Its address or respective canted for notification purposes by gMng notice to the other of the new address or designee and the data upon which such change will become effective. BellSouth Customer BellSouth Business Systems, Inc- The City of Miami, a municipal corporation of the State of Florida Attn: Director of Contract Management 444 SW 2 Avenue 2180 Lake Blvd., 7th Floor Miami, Fe 33130 Atlanta, GA 30319 15. Confidential Information - 15.1 Except as set forth In this Section, or as otherwise expressly provided In this Agreement. each Party agrees that (a) all Information communicated to K by the other and Idonttfled and marked as 'confidential,' whether before or after the dale hereof, (b) all Information idenUfled as confidential to whkh It has access in connection with the Services and Equipment, and (c) this Agreement end the ParUes' rights and obligations hereunder (collectiveiy,'Confidential Informationl, will be, and wil be deemed to have been, received In confidence and will be used only for purposes of this Agreement Each Party agrees to use the same means It uses to protect its own confidential Information, but In no event less than reasonable means, to prevent the disclosure and protect the confidentiality of Canndenfial Information. No Confidential Information will be disclosed by the recipient Party without the prior written consent of the disclosing Party; provided, however, that each Party may disclose this Agreement and any disclosing Pany's Confidential Information to those who are employed or engaged by the recipient Party. Its agents or those of its affiliates who have a need to have access to such Infomlatlon In connection with the, employment or engagement, provided the recipient Party notifies such persons of the obligations set forth In this Section end such persons agree to abide by such obligations. 15.2 The obligations set forth in subsection 15.1 above will not prevent any Party from disclosing Information that belongs to such Party or (a) is already known by the recipient Party without en obligation of confidentiality other than under this Agreement, (b) Is publicly known or becomes publicly known through no unauthorized ad of the recipient Party, (c) is rightfully received from a third party, (d) is independently developed without usa of the disclosing Party's Confidential Information or (e) le disclosed without similar restrictions to a third party by the Party owning the Confidential Information. If Conndenllal Information is required to be disclosed pursuant 10 law, regulation, tariff or a requirement of a governmental authority, or in connection with an arbitration or mediation, such Confidential Information may be disclosed pursuant to such requirement eo long as the Party required to disclose the Conlidentfal Information, to the extent possible. provides the disclosing Party with timely prior notice of such requirement and coordinates with the disclosing Party In an effort lo limit the nature and scope of such requited disclosure. Upon written request at the expiration or termination of an Attachment ar Order, all documentod Confidential information (and all copies thereof) owned by the requesting Party (if previously received by the terminating Party) will be returned to the requesting Party orwif be destroyed, with written earth -motion thereof being given to the requesting Party. The provisions of this Section will survive the expiration or termination of any Order, Attachment and thls Agreement for any reason. 15.3 Confidential information will not Include any feedback, data. answers. questions, comments, suggestions, Ideas or the Uke, that Customer sends to any BellSouth Company or to BBS relating to the Services or Equipment. unless Customer Identifies d as Confidential Information. BellSouth and BBS assume no obligation to protect such Information from disclosure and will be free to reproduce, use, and distribute the information to others without restriction. BellSouth and BBS will also be free to use any ideas, concepts, know-how or techniques contained in such information or developed by them, for any purpose whatsoever Including but not limited to developing, manufacturing and marketing Services and 5 of e CONFIDENTIAUPROPRIEfARY—NOT FOR DISCLOSURE OUTSIDE BELLSOUTH WITHOUTWRITTEN PERMISSION BBMA Agreement No. FLO3-D326-00 Equipment Incorporating such information. Nothing contained in this Section restricts the right and ahI Iy of BEIS and BellSouth to use Information concerning the execution of this Agreement and the provision of the Services and Equipment to Customer In internal publications. 16. Trade Name, Trademarks and service Marks, Patents and Copyrights - 16.1 Neither Party is authorized to and will not use any name or mark of the other Party In any advertising, publicity or in any other commercial manner without the prior written consent of the other Party. 162 Customer may use, copy and distribute the materials relating to the Services for Internal, noncommercial, Informational purposes only. Eleept as authorized In this paragraph, Customer is not being granted a license under any copyright, trademark, patent or other intellectual property • right In the material or the products, sentIces, processes or technology described therein. BellSouth, Its atfUlates and/or any third party owner of such rights retain all such tights. Customer shall have no ownership or property rights in the Services or In any documentation provided In connection with the Services. Customer may make copies of such documentation solely for use In Connection with its authorized use of the Services, and all such Copies Shall include all Copyright, trademark and other proprietary notices appearing in the original documentation. Upon the temtlnatlon of the Services to Customer, Customer shall return all copies of the documentation to BellSouth or certify destruction of such documentation. 18.3 All trademark, product and service marks contained on or associated with the Services and Equipment that are not BellSouth Company marks am the trademarks of (heir respective owners. References to any names, marks, products, services or equipment of third parties do not necessarily constitute or Imply BBS's or BellSouth's endorsement, sponsorship or recommendation of the third party, tnformalian, product or service. 16.4 Neither Party will make any media release or other public announcement relating or referring to the Agreement wlthoUt the prior whiten consent of the ather Patty. .. . 17. Indemnity — 17.1 If any Equipment, Services 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 claim or suit is brought against Customer an that account. BellSouth agrees to defend or settle any such calm or suit at BellSouth's expense. BellSouth will also pay all damages and costs that by final judgment ore assessed against Customer due to such Infringement. • 17.2 BellSouth's obligation as set Forth In this Section is expressly conditioned upon the Following: (a) that BellSouth shall be notified promptly in writing by Customer of any claim or suit of which Customer Is aware; (b) that BellSouth shall have sole control of the defense or settlement of any claim or sus: (c) that Customer shall cooperate with BellSouth in all reasonable ways to facilitate the settlement or defense of any claim or suit; and (d) that the claim or suit does not arise from Customer modificrtions, or from combinations of Equipment. Software or Services provided by BellSouth with equipment. software or services provided by Customer or others. or from Customers use of Equipment. Software or Services other than h acmniance with the applicable manufacturers epecifrcitions. 17.3 if any Equipment, Software or ServiCee becomes, or In BellSouth's opinion, is likely to become the subject of a Balm of Infringement, BellSouth will, at Its option: (a) procure for Customer the right to continue using the applicable Equipment, Software or Services; (b) replace the Equipment, Software or Services with a non -infringing Equipment, Software or Servicas substantially complying with the spersh©bons of the Equipment, Software or Services; or (c) modify such Equipment. Software or ServlCos so It becomes non -Infringing and performs in a substantially similar manner to the original Equipment, Software or Services. 17.4 If options 17.3(a). (b) or (c) abave are not reasonably available to BellSouth, then BellSouth may elect Instead to return the price paid for the purchased Equipment, the one time fee paid for the licensed Software, or any amounts prepaid by Customer for the affected Services for any period after BellSouth directs Customer to cease such use, which Is In either rase the subject or potential subject of an infringement claim, as then depreciated based on Customer's depredation schedule used for federal income tax reporting purposes. 17.5 To the extent permitted by law, including Florida Statute Section 768.28, Customer will indemnify and save BellSouth harmless from and against all loss, Ilabifity, damage, and expense, including all reasonable counsel fees, due to dalms for Infringement of United States patents, copyright, trademark, or other Intellectual property rights, or due to any other claims or causes of action by third parties, arising from the use, of equipment, software or Information not provided by BellSouth. 18. Disputes - To the extent 'omitted by law, the Parties agree to submit to non -binding mediation any dispute, controversy or calm arising in connection with this Agreement, or the breech, lerminolian, validity or enforceability of any provision hereof (e "dispute") that Is not resolved through negotiation. ((the Parties are unable to agree on a mediator from a list obtained from the American Arbitration Association CAM") office located in Miami, Florida, the AAA will seed the mediator. If any dispute is not resolved through mediation, it will be resolved by final and binding arbitration conducted In eoaordance with the Commando, Arbitration Rules of the AAA. One arbitrator will be selected in accordance with such rules and wilt allow such discovery as is appropriate. Judgment upon an arbitration award may be entered In a cowl having Jurisdiction thereof, or a Party may apply to such court for judicial acceptance and enforcement of the award, as the law may allow. Any mediation or erbkraUon concluded pursuant to this Section will take place In Miami. Other than those matters Involving InJundlve relief or enforcement of the award , the Parties agree that this Section le a complete defense to any suit, action or other proceeding instituted In any court or administrative body with respect to any dispute or the performance or provision of the Service by BellSouth. Nothing In this Section prevents the Parties from exercising their right to terminate this Agreement In 6Ccordance with the terms hereof. 19. General. 19.1 Except as set forth herein, neither Customer nor BellSouth may assign or transfer any of its rights, duties, or obligations with respect to The Services without the other Parry's written consent. which consent shall not be unreasonably withheld or delayed. Any attempted assignment or transfer without the written Consent of the relevant Party shall be void. Notwithstanding the foregoing, BellSouth may assign, delegate or otherwise transfer its rights or obligations hereunder, in whole or In part, at any time to any entity owned In whole or in part by 7 of 8 CONFIDENTIAUPROPRIETARY — NOT FOR DISCLOSURE OUTSIDE BELLSOUTH WITHOUT WRITTEN PERMISSION "^ 1 'T n n' 1 WI P I r n r r n r (1111 1 1 /, 141111 T I, AA ,T T n A nAArtrt fl f .! T t n„, i T A 11 f, !A err. BMA Agreement No. FL03•0326-00 BellSouth Corporation or by one or more of its direct or Indirect subsidiaries, or subcontract the performance of any of its obligations under this Agreement. 19.2 No action, regardless of form, arising out of the Agreement may be brought by either party more than one year after the cause of action has arisen. 19.3 These tams and the Services and Equipment shall be governed by the laws of the Stale of Florida , without regard to its conflicts of laws provisions. If any provision or provisions hereof shall be held to be Invalid, Illegal, or unenforceable, the validity, legality, and enforceability of the remaining provisions shall not be In any way affected or Impaired thereby. 19.4 No failure on the part of either Party to exercise any right or remedy arising directly or Indirectly under this Agreement will operate as a waiver of any right or remedy It may have. nor will an exertlee of any right or remedy try either Party preclude any right or remedy otherwise available to such Party. 19.5 The headings used In this Agreement ere for convenience only and do not affect the meaning or interpretation of this Agreement. 19.6 Except as otherwise specifically stated in thls Agreement, the provlalons of this Agreement are for the benefit of the Parties hereto and not for any other parson. Customer acknowledges that Customer has read and understands this Agroament and agreaa to be bound by Its terms and conditions. Cuctomar further agrees that thls Agreement. and any Orders, constitute the complete and exclusive statement of the 'agreement between the parties, superseding all proposals, representations, andlor prior agreements, oral or written, between the • parties relating to the subject matter of the Agreement. Acceptance of any Order by BellSouth Is subject to BellSouth credit and • other approvals. This Agreement Is not binding upon BellSouth until executed by an authorized employee, partner, or agent of Customer and BellSouth. The undersigned warrant and represent that they have the authority to bind Customer and BellSouth to this AgreemenL This Agreement may not be modified, amended, or superseded other than by a written instrument executed by both parties. The undersigned warrant and represent that they have the authority to bind Customer and BellSouth to this Agreement I3ELLSOUTH COMPANIES CUSTOMER_ The Cily of Mfamt, a municipal corporation of the Slate of Florida By: BEUTH BU INESS SYSTEMS, INC. 9y See Attachment A $y (Signature) By: Joe Arriola By! (Printed Name and Title) Date: 2/2/04 8 of 8 Date: (Signature) 1 L. 5kpL (Printed Name and Ile) -2(T- /0-t. CONFIDENTIAL/PROPRIETARY — NOT FOR DISCLOSURE OUTSIDE BELLSOUTH WITHOUT WRfTTEN PERMISSION