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HomeMy WebLinkAboutExhibit AMASTER SERVICES AGREEMENT This Master Services Agreement ("MSA") is made as of this 10th day of August, 2018, (the "Effective Date") by and between Global Traffic Technologies, LLC ("GTT"), with its offices at 7800 Third Street North, Building 100, Saint Paul, Minnesota, 55128 and the City of Miami, FL ("Customer" or "City"), having its offices at 400 N.W. 2"d Avenue (4th Floor), Miami, FL 33128. Together GTT and Customer may be referred to as "Parties" and individually as a "Party" to this MSA. This MSA includes and hereby incorporates any schedules, addendums and exhibits referenced herein or attached to the MSA. WHEREAS, GTT is the provider of certain hardware and software products manufactured and distributed by GTT ("Products") and is therefore in a unique position to provide support services regarding such Products; and WHEREAS, Customer desires that GTT perform services as defined below for the Customer in relation to certain Products; and GTT desires to perform such services for the Customer, subject to the terms and conditions set forth below. NOW, THEREFORE, in consideration of the mutual promises contained herein and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Parties do hereby agree as follows: 1. Services. a. Subject to the terms and conditions in this MSA, GTT hereby agrees to provide Customer with the services set forth in the attached `Schedule A' and any subsequent statement of work ("SOW") which sets forth additional services that GTT shall perform for Customer (individually and collectively the "Services"). Any SOW shall contain at a minimum the level of detail as set forth in `Schedule A' for additional Services as well as any additional software and hardware to be supplied by GTT. All SOWs and the Services, hardware, and software thereunder shall be subject to this MSA, including without limitation its Hardware Addendum and Software License Addendum (cumulatively the "Addenda"). b. GTT agrees to use commercially reasonable efforts to perform the Services during the timeframe outlined within `Schedule A' and any SOW, but will extend that timeframe if needed to complete the work agreed to if it cannot be accomplished using commercially reasonable efforts within the original estimated timeframe. c. Services shall include any service level agreement ("SLA") stated in `Schedule A' and any SOW. d. GTT may engage subcontractors to assist in meeting its obligations under this MSA, provided that GTT remains ultimately responsible for its obligations under this MSA. e. Services rendered hereunder may only be requested by the Customer and must be only for the benefit of Customer and its own internal purposes and business operations. Customer 12858801.2 may not request or use the Services as a service for any third party, unless agreed to in writing between the Parties. 2. Sale of hardware and Delivery. To the extent applicable, GTT shall sell to Customer and Customer shall purchase from GTT the goods in the quantities and at the prices and upon the terms and conditions set forth in set forth in this MSA and on `Schedule A' (the "Goods"). The Goods referenced herein does not apply to any software on or used in relation to the Goods, which is separately governed by the Software License Addendum. a. Delivery. The Goods will be delivered within a reasonable time after the Effective Date. GTT shall not be liable for any delays, loss, or damage in transit. 2.a.1. GTT shall deliver the Goods to the location set forth in `Schedule A' (the "Delivery Point") using GTT's standard methods for packaging and shipping such Goods. 2.a.2. GTT may, in its sole discretion, without liability or penalty, make partial shipments of Goods to Customer. Each shipment will constitute a separate sale, and Customer shall pay for the units shipped whether such shipment is in whole or partial fulfilment of the quantity purchased under this Agreement. GTT shall not be liable for any non- delivery of Goods (even if caused by GTT's negligence) unless Customer gives written notice to GTT of the non-delivery within ten (10) days of the date when the Goods would in the ordinary course of events have been received at the Delivery Point. Any liability of GTT for non-delivery of the Goods shall be limited to delivering the Goods within a reasonable time or adjusting the invoice respecting such Goods to reflect the actual quantity delivered. 2.a.3. Title and risk of loss to the Goods shall pass to Customer upon delivery of the Goods from GTT's facilities. If Customer does not take physical possession of the Goods when they arrive at the Delivery Point, GTT, at its option, may store the Goods until Customer picks them up, whereupon Customer shall be liable for all related costs and expenses (including, without limitation, storage and insurance). b. Inspection and Rejection of Nonconforming Goods. Customer shall inspect the Goods within ten (10) days of receipt ("Inspection Period"). "Nonconforming Goods" in this Section 2.2 means only that the product shipped is different than identified in `Schedule A7. 2.b.1. If Customer timely notifies GTT of any Nonconfonning Goods, GTT shall, in its sole discretion, (i) replace such Nonconforming Goods with conforming Goods, or (ii) credit or refund the price for such Nonconforming Goods. Customer shall ship at GTT's request and at GTT's expense, the Nonconforming Goods to GTT's facility. If GTT exercises its option to replace Nonconforming Goods, GTT shall, after receiving Customer's shipment of Nonconforming Goods, ship to Customer, at GTT's expense the replaced Goods to the Delivery Point. Customer acknowledges and agrees that the remedies set forth in this MSA are Customer's exclusive remedies for the delivery of Nonconforming Goods. a 12858801.2 3. Software License Addendum. Subject to the ten -ns and conditions in this MSA and the Software License Agreement found at http://www.gtt.com/software-tenns-conditions/, GTT will provide software to Customer as set forth in `Schedule A' and any applicable SOW. 4. Term and Termination. a. Term. The tenn of this MSA will begin on the Effective Date and will continue as set forth in `Schedule A' or until the expiration of any Services tenn or other terms for hardware provision, SaaS Software Licenses, or SaaS Services (as those terms are defined in the Software License Addendum), whichever is longer. b. Termination. Ether Party may terminate this MSA upon mutual agreement, as set forth in any applicable Addenda or SOW, or if the other party is in breach of this MSA and fails to cure such breach within thirty (30) days after the non -breaching party provides notice of the breach. Either party may also terminate this MSA immediately upon notice if the other party (a) is liquidated, dissolved, or adjudged to be in a state of bankruptcy or receivership, (b) is insolvent, unable to pay its debts as they become due, makes an assignment for the benefit of creditors or takes advantage of any law for the benefit of debtors, or (c) ceases to conduct business for any reason on an ongoing basis leaving no successor in interest, or (d) in the case of the customer, funds become unavailable due to non -appropriation of an annual budget during the term of this MSA. c. Rights and Obligations After Termination. The provisions of the following Sections shall survive any expiration or termination of this MSA: Sections 1.5 and 2 — 12 in addition to those designated to survive under any Addenda, `Schedule A', or SOW. d. Termination for Convenience. The Customer may at any time, after the third year following the Effective Date of this MSA, in its sole discretion, with or without cause, terminate this MSA, in whole or in part, by written notice to GTT. Such written notice to GTT will be provided at least thirty (30) days in advance of the effective termination date and shall state the exact date upon which GTT shall cease all performances of the Services set forth in this MSA, any Addenda, Schedule A, and SOW. In exercising that option, all work product, including but not limited to, all data, reports and other documents, including electronic documents, related to this MSA, any Addenda, Schedule A, and SOW, shall be turned over to the Customer within ten (10) days from the date of termination. Customer may withhold final invoice payment for Services until said work product is turned over to the Customer. Other than payments due under this MSA, any Addenda, Schedule A, or SOW, neither party shall have any recourse against the other, in law or equity, if the Customer exercises its option of termination for convenience under this section. 5. Payment of Fees. a. In consideration of GTT's performance of the Services and, as applicable, provision of Products, if any, as set forth in any Addenda, `Schedule A' and any SOW, Customer agrees to pay GTT the fees as set forth in any such Addenda, `Schedule A' and SOW. 3 12858801.2 b. GTT will invoice Customer as set forth in any Addenda, `Schedule A', and any applicable SOW. Unless otherwise stated in any Addenda, `Schedule A', or any SOW, Customer shall pay GTT within thirty (30) days of the date of any invoice. In addition to all other remedies available to GTT under this MSA or at law or equity, GTT may suspend the Services in the event payment is not received on-time. All billing as set forth in any Addenda, `Schedule A', and any applicable SOW is represented in U.S. currency. Customer shall pay interest on all late payments at the lesser of the rate of one and a half percent (1.5%) per month or the highest rate permissible under applicable law, calculated daily and compounded monthly. 6. Independent Contractor. a. GTT is retained by Customer only for the purposes and to the extent set forth in this MSA and its accompanying `Schedule A', Addenda, exhibits, and SOWs. GTT's relationship to Customer is that of an independent contractor and not as an employee or agent of Customer. As such, GTT shall not be entitled to or claim any benefits or rights afforded employees of Customer. b. This MSA does not make or appoint and nothing contained in this MSA shall be construed to appoint either Party as an agent of the other Party, or to create a partnership or joint venture between the Parties. Neither Party, nor any of its agents or employees will have any authority, implied or otherwise, to execute any contract or other agreement on behalf of the other Party, or to make any representation, commitment, or undertaking on behalf of the other Party or any of its affiliates. c. Customer shall not be responsible to GTT, GTT's employees, or any governing body for any federal or state income tax, social security tax, unemployment tax or any other similar taxes applicable to GTT or GTT's employees and GTT will be solely responsible for such taxes. 7. Confidentiality. a. Confidential Information. As used in this MSA, "Confidential Information" includes all confidential information of a Party ("Disclosing Party"), obtained by or disclosed to the other Party ("Receiving Party") pursuant to this MSA or in connection with the Services provided under this MSA, including, but not limited to trade secrets, secret processes, software source code, know-how, business plans, inventions, improvements, data, formulae or confidential information whether owned by the Disclosing Party as of the Effective Date or later developed or acquired and that by its nature would reasonably be considered as confidential. b. Exclusions. Confidential Information shall not include information which: (a) is or becomes public knowledge through no fault of the Receiving Party; (b) was in the Receiving Party's possession before receipt from the Disclosing Party; (c) is rightfully received by the Receiving Party from a third party without any duty of confidentiality; (d) is disclosed to a third party by the Disclosing Party without a duty of confidentiality on M 12858801.2 the third party; (e) is independently developed by the Receiving Party; or (f) is disclosed with the prior written approval of the Disclosing Party. Confidential Information of a Disclosing Party may be disclosed in response to a valid court order or other legal process only to the extent required by such order or process and only after the Receiving Party has given the Disclosing Party written notice of such court order or other legal process promptly, if allowed by law, and the opportunity for the Disclosing Party to seek a protective order or confidential treatment of such Confidential Information. c. Ownership & Control. Except as otherwise specified herein, in the MSA or in any SOW, the Disclosing Party shall retain all right, title, in interest in the Confidential Information it discloses including without limitation all Intellectual Property (as defined in this MSA) rights in such Confidential Information. The Parties agree, both during the term of the MSA and after its termination to hold Confidential Inforination of the Disclosing Party in confidence and to protect the disclosed Confidential Information by using the same degree of care to prevent the unauthorized use, dissemination or publication of the Confidential Information as the Receiving Party uses to protect its own Confidential Information of a like nature but in no event with less than reasonable care. The Parties agree not to make Confidential Information of the other Party available in any form to any third party except as required for the purpose of implementing this MSA. Each Party agrees to restrict disclosure of the Confidential Information to those who have a "need to know" and to take all reasonable steps to ensure that Confidential Information is not disclosed or distributed in violation of the provisions of the MSA. Each Party agrees that its breach of any provision of this Confidentiality Section may cause irreparable damage to the other Party and that the other Party shall be entitled to seek equitable remedies, in addition to other remedies hereunder or at law, in the event of such breach. d. return of Materials. Upon termination of the MSA or upon the Disclosing Party's request, the Parties will (i) return to the other Party that Party's Confidential Information or (ii) to the extent commercially practicable, destroy and certify the same (at the other Party's election) all of that other Party's Confidential Information. GTT shall have no liability for any inability to perform under this MSA due to the failure of Customer to disclose helpful Confidential Information or Customer's request to return or destroy such information prior to the termination of any Services. e. MSA Confidentiality. Neither Party shall disclose any information about the terms of this MSA without the other Party's prior written consent, except that GTT will have the right to announce Customer as a customer only after the MSA has been executed ("Announcement Rights"). GTT may further request an, endorsement and/or quote from Customer, but Customer is under no obligation to provide an endorsement or quote. If Customer agrees to provide a quote, GTT will only publish the quote upon prior written approval by Customer. Customer may terminate GTT's Announcement Rights at any time by providing written notice GTT. f. Public records. GTT acknowledges and understands that the public shall have access, at all reasonable times, to all documents and information pertaining to City contracts, subject to the provisions of Chapter 119, Florida Statutes, and agrees to allow access by the City G 12858801.2 and the public to all documents subject to disclosure under applicable law. GTT's failure or refusal to comply with the provisions of this section shall result in the immediate cancellation of this MSA by the City. S. Intellectual Property. a. Definition of Intellectual Property. "Intellectual Property" shall mean all intellectual property and industrial property rights and assets, however arising, pursuant to the laws of any jurisdiction throughout the world, whether registered or unregistered, including without limitation any and all: (a) trademarks, service marks, trade names, brand names, logos, trade dress, design rights and other similar designations of source, sponsorship, association or origin, together with the goodwill connected with the use of and symbolized by, and all registrations, applications and renewals for, any of the foregoing; (b) works of authorship, expressions, designs and design registrations, whether or not copyrightable, including copyrights, author, performer, moral and neighboring rights, and all registrations, applications for registration and renewals of such copyrights; (c) inventions, discoveries, trade secrets, business and technical information and know-how, databases, data collections and other confidential information and all rights therein; (d) patents (including all reissues, divisionals, provisionals, continuations and continuations -in -part, re-examinations, renewals, substitutions and extensions thereof), patent applications, and other patent rights and any other governmental authority -issued indicia of invention ownership (including inventor's certificates, petty patents and patent utility models); and (e) software and firmware, including data files, source code, object code, scripts, mark-up language, application programming interfaces, architecture, files, records, schematics, computerized databases and other related specifications and documentation. b. Deliverables. The term "Deliverables" shall include only materials and services delivered to Customer by GTT that are expressly identified in `Schedule A' or the applicable SOW as a "Deliverable," if any. Unless otherwise stated in `Schedule A' or an applicable SOW, GTT owns, and to the extent not owned, is hereby assigned by Customer, all right, title, and interest in all Deliverables including without limitation all Intellectual Property in and to such Deliverables. Subject to the terms of this MSA, GTT grants a limited, non- exclusive, royalty -free license to Customer to the Deliverables and GTT Intellectual Property related to the Deliverables solely to extent and term necessary for Customer to use the Deliverables as contemplated under `Schedule A' or the applicable SOW. c. Addenda. The Hardware Addendum and Software License Addendum may contain additional rights and obligations regarding Intellectual Property. d. Trademarks. As may be required in this MSA including `Schedule A' and any SOW, GTT may use the trademarks and trade names of Customer in connection with its provision of Services and Customer hereby licenses such trademarks and trade names to Customer for such purposes. 9. Warranties and Warranty Disclaimers. 0 12858801.2 a. Representations and Warranties of Customer. Customer hereby represents and warrants, with respect to this MSA, that: the execution, delivery, and performance by Customer of this MSA are within Customer's power and have been duly authorized by all necessary corporate action; the individual executing was duly authorized to do so; and the MSA constitutes a legal, valid, and binding agreement of Customer enforceable in accordance with its terms. Customer further represents and warrants that the execution, delivery, and performance of this MSA by Customer now or hereafter executed and delivered to GTT will not violate provisions or constitute a default under any agreement binding upon Customer or its articles or certificate of incorporation, charter, bylaws or partnership agreement, and will not cause any lien to be unposed upon any property of GTT except any lien in favor of GTT with respect to the Goods under any Hardware Addendum. Customer warrants that it is in compliance with and shall comply with all applicable laws, regulations and ordinances. Customer has and shall maintain in effect all the licenses, permissions, authorizations, consents and permits that it needs to carry out its obligations under this MSA. b. Representations and Warranties of GTT. GTT hereby represents and warrants, with respect to this MSA, that: the execution, delivery, and performance by GTT of this MSA are within GTT's power and have been duly authorized by all necessary corporate action; the individual executing was duly authorized to do so; and the MSA constitutes a legal, valid, and binding agreement of GTT enforceable in accordance with its terms. GTT further represents and warrants that the execution, delivery, and performance of this MSA by GTT now or hereafter executed and delivered to GTT will not violate provisions or constitute a default under any agreement binding upon GTT or its articles or certificate of incorporation, charter, bylaws or partnership agreement, and will not cause any lien to be imposed upon any property of Customer except any lien in favor of GTT with respect to the Goods under any Hardware Addendum. GTT warrants that it is in compliance with and shall comply with all applicable laws, regulations and ordinances. GTT has and shall maintain in effect all the licenses, permissions, authorizations, consents and permits that it needs to carry out its obligations under this MSA. GTT warrants that the Services will be provided in a professional manner in substantial accordance with industry standards. Additional warranties may be set forth in the applicable Hardware Addendum and Software License Addendum and are incorporated herein by reference. c. Warranty Disclaimer. GTT MAKES NO OTHER WARRANTIES OTHER THAN AS SET FORTH IN THIS WARRANTIES AND WARRANTY DISCLAIMERS SECTION.NO REPRESENTATION OR OTHER AFFIRMATION OF FACT, INCLUDING WITHOUT LIMITATION, STATEMENTS REGARDING CAPACITY, SUITABILITY FOR USE OR PERFORMANCE OF THE SERVICES, WHETHER MADE BY EMPLOYEES OF GTT OR OTHERWISE, WHICH IS NOT CONTAINED IN THIS MSA, SHALL BE DEEMED TO BE A WARRANTY BY GTT FOR ANY PURPOSE, OR GIVE RISE TO ANY LIABILITY OF GTT WHATSOEVER. 10. Limitation of Liability. NOTWITHSTANDING ANYTHING IN THIS MSA TO THE CONTRARY, NEITHER PARTY TO THIS MSA, NOR GTT'S SOFTWARE VENDOR(S) AS TO CUSTOMER, SHALL HAVE LIABILITY TO THE OTHER PARTY FOR ANY 7 12858801.2 LOSS OF PROFITS, LOSS OF DATA, LOSS OF BUSINESS, INDIRECT, EXEMPLARY, PUNITIVE, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES RELATING IN ANY WAY TO THIS MSA, EVEN IF THE PARTY IS AWARE OF THE POSSIBILITY OF SUCH DAMAGES AND REGARDLESS OF WHETHER SUCH DAMAGES ARE BASED IN TORT (INCLUDING STRICT LIABILITY AND NEGLIGENCE), CONTRACT OR STATUTE, EXCEPT IN THE EVENT CUSTOMER BREACHES ANY TERM OR CONDITION RELATED TO GTT'S INTELLECTUAL PROPERTY OR CONFIDENTIAL INFORMATION. IN NO EVENT SHALL GTT'S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS MSA INCLUDING WITHOUT LIMITATION ANY INDEMNIFICATION OBLIGATION, WHETHER ARISING OUT OF OR RELATED TO BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, EXCEED THE TOTAL OF THE AMOUNTS PAID TO GTT UNDER THE MSA IN THE TWELVE MONTHS PRECEDING THE ACTS OR OMISSIONS THAT GAVE RISE TO THE CLAIM. 11. Indemnification. a. Indemnification by Customer. . The Customer expressly acknowledges and accepts its responsibility under applicable law only to the extent allowed by Section 768.28, Florida Statues, for property loss, property damage, incident to injury to persons or property, arising out or resulting from the activities performed under this agreement. This is a statement of Customer responsibility but is not to be construed or interpreted as a, hold harmless, duty to defend, covenant not to sue, release, or indemnification by the Customer to any third party, including GTT. Excepting only the express statement in this paragraph, the City expressly reserves its sovereign immunity and its privileges, defenses and claims relating to its sovereign immunity. The provisions of this section shall be construed to conform with and be subject to the limitations of Section 768.28, Florida Statutes, and the provisions of this indemnification shall survive the term of this MSA. b. Indemnification by GTT. GTT shall indemnify, defend and hold harmless the Customer and its officers, directors, employees, agents, representatives, and officials (collectively referred to as "Customer Indemnified Parties") and each of them from and against any and all losses, damages, liabilities, deficiencies, claims, actions, judgments, settlements, interest, awards, penalties, fines, costs, or expenses of whatever kind, including reasonable attorneys' fees, fees and the costs of enforcing any right to indemnification under this MSA, and the attorneys' fees and cost of pursuing any insurance providers, incurred by Customer Indemnified Parties or awarded against Customer Indemnified Parties relating to, arising out of, or resulting from any injury to or death of any person or damage to or destruction or loss of any property arising out of, resulting from, or in connection with (i) the performance or non-performance of the Services contemplated by this MSA which is or is alleged to be directly or indirectly caused, in whole or in part, by any act, omission, default or negligence, whether active or passive, of GTT or its employees, agents or subcontractors, regardless of whether it is, or is alleged to be, caused in whole or part, whether joint, concurrent or contributing, by any act, omission, default or negligence (whether active or passive) of the Customer Indemnified Parties, or any of them or (ii) the 12858801.2 failure of GTT to comply with any of the paragraphs herein or the failure of the GTT to conform to statutes, ordinances, or other regulations or requirements of any governmental authority, federal or state, in connection with the performance of this MSA. c. Indemnification Procedure. The Party seeking indemnification (the "Indemnified Party") shall notify the party from which the Indemnified Party is seeking indemnification (the "Indemnifying Party") promptly after the Indemnified Party receives notice of a claim for which indemnification is sought under this MSA, provided, however, that no failure to so notify the Indemnifying Party shall relieve the Indemnifying Party of its obligations under this MSA except to the extent that it can demonstrate damages directly attributable to such failure. The Indemnifying Party shall have authority to defend or settle the claim; provided however that the Indemnified Party, at its sole discretion and expense, shall have the right to participate in the defense and/or settlement of the claim and provided further, that the Indemnifying Party shall not settle any such claim imposing any liability or other obligation on the Indemnified Party without the Indemnified Party's prior written consent. 12. General Provisions. a. Successors and Assigns. Neither Party shall assign this MSA nor any of the obligations under this MSA to any other party without prior written consent of the other Party, which consent will not be unreasonably withheld, provided either Party may assign this MSA in confection with a reorganization, merger, acquisition, or sale of substantially all its assets. This MSA will be binding on and inure to the benefit of each Party's legal successors and permitted assigns. b. Governing Law and Forum. This MSA will be construed and interpreted in all respects in accordance with the laws of the State of Florida without regard to its conflicts of laws provisions. The forum for any dispute arising under this MSA shall be exclusive in the federal and state courts located in Miaini-Dade County, Florida. Each Party submits to the jurisdiction of such courts and expressly waives any objection as to personal jurisdiction or forum non -convenes. c. Entire Agreement. This MSA, including any documents attached hereto and incorporated by reference, supersedes any and all other prior agreements, understandings, negotiations, or communications, either oral or in writing, between the Parties or their representatives and constitutes the entire understanding of the Parties with respect to its subject matter. No form, invoice, bill of lading, shipping document, order, purchase order, receipt or other document provided by either Party shall operate to supersede, modify or amend any provisions of this MSA, even if either Party has initialed, signed or otherwise acknowledged such document regardless of the timing of the execution or presentment in relation to the execution of this MSA, unless the document expressly states that it modifies or amends this MSA and is signed by authorized representatives of both Parties. This MSA may not be modified, altered, or waived, in whole or in part, except in a writing signed by the duly authorized representatives of the Parties hereto. In the event of any conflict between the terms of the Addenda, schedule, exhibits, or SOWS, if any, to this MSA, the terms of the conflicting provision in the Addenda, schedule, exhibits, or SOWS shall E 12858801.2 supersede the conflicting ten -ns in this MSA. Wherever possible the terms of the Addenda, schedule, exhibits, or SOWS, if any, to this MSA shall be read to be in addition to, and not in conflict with, this MSA. d. Severability. Should any provision of this MSA be held by a court of competent jurisdiction to be invalid, illegal or unenforceable in any respect, that court shall amend such provision if possible to be valid and enforceable while maintaining the intent of the Parties as shown by the original wording of that provision or if the provision cannot be so amended, it will be severed and the Parties specifically intend that the remaining provisions will continue as valid, legal and enforceable to the maximum extent provided by law. e. Notices. Written notices as required under this MSA shall be deemed to have been given or made on the next business day when sent by the use of overnight courier, or on the fifth business day after deposit, postage prepaid in the U.S. mail for certified or registered mail to the addresses of the Parties set forth at the beginning of this MSA, Attention: LEGAL. The address for notice may be changed at any time by giving prior written notice as above provided. f. Effect of Waiver. The failure of either Party to insist on strict compliance with any of the terms, covenants or conditions of this MSA by the other Party will not be deemed a waiver of that term, covenant or condition; nor will any waiver or relinquishment of that right or power be for all or any other times. g. Non -Solicitation. Each Party agrees during the term of this MSA and for a period of twelve (12) months thereafter, it will not directly solicit for hire the employees of the other, without the written consent of the other Party. Employees hired in response to general employment solicitations advertised in the usual and customary manner by either Party shall be excluded from this provision. REMAINDER OF PAGE LEFT INTENTIONALLY BLAND SIGNATURE PAGE TO FOLLOW 10 12858801.2 IN WITNESS WHEREOF, the parties hereto have caused this instrument to be executed by their respective officials thereunto duly authorized, this the day and year above written: Global Traffic Technologies, LLC: Signature: Printed Name: Title: Date: ATTEST: Todd B. Hannon, City Clerk APPROVED AS TO FORM AND CORRECTNESS: Victoria Mendez City Attorney 12858801.2 "City" CITY OF MIAMI, a municipal corporation Emilio T. Gonzalez, Ph. D., City Manager APPROVED AS TO INSURANCE REQUIREMENTS: Ann -Marie Sharpe, Director Department of Risk Management 11 Schedule A Statement of Work Effective Date: Effective Date of VISA For subscription or capital lease sales, the billing cycle will begin upon First Productive Use (defined herein), however the amount invoiced will be prorated on a monthly basis ("Interim Rent") to the point of the Commencement Date (defined herein), based on the number of vehicles and intersections deployed upon First Productive Use. For the purpose of determining termination of this Schedule A, the teen of this Schedule A will not begin until the first day of the month following Services Completion (defined herein) for all Up -Front Services (defined herein) for all vehicles and intersections ("Commencement Date"), unless otherwise agreed to by the Parties in writing. For avoidance of doubt, Interim Rent will be invoiced monthly. 2. When included, intersection installation pricing assumes a standard configuration without complications. Not included in this proposal are the following items, which will require additional cost: a) crushed conduit or any other issues preventing cable from being installed, b) lane or road closures, c) police or other resources needed at the installation area and/or d) other third -party costs not known at the time of the proposal. 3. Proposal assumes the intersection cabinets are in good working order and contain wiring diagrams. Vehicle installation assumes standard installation and does not include: a) special mounting brackets, b) excess wiring and/or c) swapping out previously installed (replacement) vehicle hardware. 4. Unless explicitly included, proposal excludes any activities associated with: a) traffic control plan, b) water pollution control plan, c) changeable message signs/flaggers, d) permits/bonds/fees and/or e) removal/repair/replacement of concrete, asphalt, conduits or wiring. 5. Customer agrees to accept all applicable hardware and software upon shipment, where shipment is defined as the point at which hardware and/or software has been picked up from a GTT facility by the shipper ("Shipment") for delivery to Customer or its designated Yd party, however acceptance in no way relieves GTT from its obligations as described in the MSA or its product warranties. 6. Acceptance of services and final sign -off. A. "Services" — is defined as the services provided by GTT or its subcontractors as outlined in the MSA, which may include but are not limited to: i. "Up -Front Services" — as used herein, means the Services provided initially that are necessary to achieve First Productive Use (defined herein): 12858801.2 Site survey (intersections and/or vehicles) — GTT will survey Customer's intersections and vehicles to detennine current infrastructure and needs, including wiring, hardware mounting locations and other key information necessary to ensure a successful deployment. For avoidance of doubt, Customer agrees to make vehicles and intersections available to GTT to enable the site survey. 2. Project management — GTT will assign a project manager to work with Customer to create a project plan and then manage the resources deployed to execute the plan. 3. Installation (intersections) — GTT will install, configure and test phase selectors, modems, radios, antennas and/or cables, including testing to ensure proper operation and in preparation for Final Testing (defined herein). 4. Installation (vehicles) — GTT will install, configure and test vehicle kits, computers, modems, radios, antennas, cables and/or software, including testing to ensure proper operation and in preparation for Final Testing. S. Training (2 days, 1 trainer; includes travel) — GTT will provide two days of training at the Customer's location. Customer may have an unlimited number of participants so long as they are employees or representatives of Customer. Customer must provide the training room and any needed audio/visual equipment. 6. Engineering services — GTT will provide custom work if/when applicable and included in the MSA. ii. "Ongoing Services" — as used herein, means the Services provided subsequent to Up -Front Services: 1. Hosting — GTT will install its software on a remote, secure, 3rd party server, to be accessed by Customer and/or GTT as a service. All maintenance of the server is included. Fees for this service are billed annually, quarterly or monthly, depending upon the payment terms outlined in the MSA. 2. Data collection and reporting — GTT will collect data, generate reports and publish as defined as appropriate by GTT, or as agreed to in writing by the Parties. 3. Monitoring and optimizing — GTT will monitor Customers' systems to ensure operational status. GTT will also look for opportunities to optimize the system, which will be communicated to Customer as applicable. To the extent outages are discovered, GTT will (or alert Customers as to the need to) deploy resources to provide repair/replacement services locally. For avoidance of doubt, monitoring includes reviewing data related to vehicles and intersections, 2 1285880 L2 but does not include outages that aren't managed by GTT (e.g., Wi-Fi networks). 4. Repairs/replacements (intersections) — When outages occur, GTT will attempt to repair remotely if possible and will deploy local resources to provide services when needed. Local resources will be GTT, GTT's dealers, or other 3rd party resources approved and subcontracted by GTT. 5. Repairs/replacements (vehicles) - When outages occur, GTT will attempt to repair remotely if possible and will deploy local resources to provide services when needed. Local resources will be GTT, GTT's dealers, or other 3rd party resources approved and subcontracted by GTT. 6. Cellular data — Machine to machine cellular connectivity. Provided by vendor of GTT's choice, but contracted by GTT for the benefit of Customer. 7. "Software Maintenance" — Provides Customer with access to the customer care center, defect fixes and Software updates. S. "Software as a Service" or "SaaS" — Hosted software made available as a Service to Customer by GTT, where no perpetual license is granted. B. "Services Completion" — is defined as the point at which individual Services have been delivered, as determined and documented by GTT. Services Completion represents acceptance of the individual Services delivered when Services Completion occurs. C. "Final Testing" is the point at which the following can be confirmed and documented by GTT, or in the case of delays caused by the Customer, 30 days from the date Services Completion occurred, whichever is sooner: i. As applicable, all vehicles available for testing can send a request for priority control and documentation of the events can be provided to Customer. ii. As applicable, all intersections available for testing can receive a request for priority control and documentation of the event can be provided to Customer. iii. As applicable, GTT's management software can connect with all intersections and vehicles available for testing and documentation of the event can be provided to Customer. C. "First Productive Use" is the point at which the following can be confirmed and documented by GTT, or in the case of delays caused by the Customer, 30 days from the date Service Completion occurred, whichever is sooner: i, Services Completion has occurred. 12858801.2 ii. Successful Final Testing has occurred. D. Customer Care center phone support: GTT operates a Customer Care call center that is dedicated to supporting all GTT customers, whether in or out of warranty. To access GTT's Customer Care, customers can dial 800-258-4610 within the United States, or for callers outside of the United States, 651-789-7333, GTT's Customer Care call center will use commercially reasonable efforts to provide technical or sales support, process warranty claims and/or route calls to other GTT departments. For technical issues, a ticketing system is in place to track cases through to resolution, escalating within the organization if/where necessary to ensure calls are resolved as quickly as possible. Customer Care is not available to customers of GTT's software Products if such customer is not current on its Software Maintenance. 7. Customer agrees to GTT's terms and conditions located at: http://www.gtt.com/sales terms/, unless they conflict with the terms and conditions explicitly stated in the MSA or Schedule A, in which case the MSA and/or Schedule A take precedent. 0 12858801.2 Resolution Definition Response Time Resolution Category Goal Goal Immediate Reported issue requires immediate Within 1 business Same attention. hour business day Moderate Reported issue requires attention within Within same 2 business 1-2 business days business day days Minor Reported issue requires attention when Within 1 business As feasible convenient. day 7. Customer agrees to GTT's terms and conditions located at: http://www.gtt.com/sales terms/, unless they conflict with the terms and conditions explicitly stated in the MSA or Schedule A, in which case the MSA and/or Schedule A take precedent. 0 12858801.2