HomeMy WebLinkAboutContract 38646Pitney Bowes
CITY SECRETAFV
CONTRACT NO . 1Q
ON -CALL MAINTENANCE AGREEMENT
This Maintenance Agreement is made and entered into as of the 1st day of December, 2008 by and between Pitney Bowes
Inc., through its Document Messaging Technologies Division ("Pitney Bowes"), having a place of business at 37 Executive Drive,
Danbury, Connecticut 068104148, and City of Ft Worth, having a place of business at 1000 Throckmorton St, Ft Worth, TX 76102
("Customer").
1. SCOPE AND TERM OF AGREEMENT
1.1 This Agreement is for maintenance of the products
described in Schedule A (the "Products").
1.2 This Agreement shall be effective as of the date
described in Schedule A ("Service Date") and shall continue
for an initial term described in Schedule B. Thereafter, this
Agreement shall renew automatically for successive one (1)
year terms. After the initial term, either party may terminate
this Agreement upon one hundred eighty (180) days' prior
written notice to the other. In the event Customer elects to
terminate this Agreement without cause prior to the expiration
of the then -current one (1) year term, no pro-rata refund will
be provided, even if any prepaid hours of service have not yet
been performed by Pitney Bowes.
1.3 Notwithstanding anything contained herein to the
contrary, Pitney Bowes may terminate this Agreement upon
one (1) business day's written notice to Customer if Customer
breaches the payment provision of this Agreement and such
payment breach is not cured within ten (10) business days after
receipt of written notice of such breach from Pitney Bowes.
2. BASIC SERVICE SUPPORT
2.1 Pitney Bowes shall perform such maintenance
services with respect to Products, including providing
adequately trained and qualified Customer Service
Representatives ("CSRs"), as described in Schedule B. hereto.
2.2 Maintenance activities will include reasonable
remedial maintenance and preventive maintenance necessitated
by normal usage. Remedial maintenance will include
replacement of parts, excluding consumable parts, and
machine enhancements. Parts provided hereunder shall be
new or equivalent to new including refurbished parts.
2.3 Preventive maintenance will consist of inspecting,
cleaning and periodically lubricating various components as
well as replacing any worn parts. Pitney Bowes shall inform
Customer of the timing and nature of preventive maintenance
required and Pitney Bowes and Customer shall mutually agree
on the scheduled time for CSRs to perform the preventive
maintenance. Pitney Bowes shall use commercially reasonable
efforts to conduct preventive maintenance as scheduled.
Customer shall make the Products reasonably available to
Pitney Bowes for preventive maintenance.
2.4 Software and fumware maintenance shall be provided
by Pitney Bowes under this Agreement as set forth in Schedule
C.
2.5 Notwithstanding anything in this Agreement to the
contrary, Pitney Bowes will not be responsible: (i) for
maintaining any Products that Customer has failed to operate
under suitable temperature, humidity, line voltage, or any
specified environmental conditions; (ii) if reasonable care is
not used in handling, operating, and maintaining the Product;
if the Product is not used in accordance with the agreed
applications and for the ordinary purpose for which it is
designed; (iv) if the inability of any Product to perform is due
to any act or failure to act on the part of Customer, including
without limitation, any alteration of or adding components to
any Product; (v) unqualified operators' use of the Product; (vi)
use of the Product in a manner not intended; (vii) use of the
Product to process applications not previously approved in
writing by Pitney Bowes; or (viii) use of damaged materials,
such as paper or envelopes. If Pitney Bowes performs any
repairs or maintenance as a result of any of the foregoing, the
Customer shall pay Pitney Bowes at Pitney Bowes' normal
rates in effect at such time. Customer shall promptly notify
Pitney Bowes of any unauthorized alteration of or addition to
the Product that occurred after Customer accepted the Product.
Pitney Bowes will not be required to maintain Products that
have become obsolete, either due to age, discontinuance of
Product's manufacture or irrepairability. Pitney Bowes shall
make recommendations to Customer regarding the
replacement or refurbishment of such obsolete Products.
Service outside of the contracted hours or beyond
2.6
what is described in Schedule B will be provided at Pitney
Bowesrates in effect at such time.
2.7 Obsolescence
From time to time, Pitney Bowes may provide notice to
Customer of its election, in its sole discretion, to terminate
support for certain hardware, software, servers and/or
databases due to obsolescence, end of life or a third party
manufacturer's election to discontinue certain servers,
platforms and/or software (collectively "Obsolescence"). In
the event Customer's support is terminated due to
Obsolescence, Customer will be provided-a-pro-rata refund for
any amounts prepaid for maintenance for the obsolete
hardware or software. In the event of a termination due to
Obsolescence, Customer will be provided an option to replace
the obsolete software, servers and/or databases with
{C0123363.1 }September 9, 2008 p
05-27-09 PO4:15 IN 1
D30
replacements that meet or exceed Customer's original system
requirements, provided; however, additional costs, including
but not limited to installation and support fees associated with
the new solution may apply.
Parts and/or assemblies for the obsolete products described
above or for products not sold as new will be provided only if
available.
2.8 Nonsolicitation
Customer agrees that during the term of this Agreement and
for a period of six (6) months after the termination of this
Agreement, it will not hire or solicit for employment any
employee with whom it has had contact in connection with the
performance of this Agreement, provided, however, that the
foregoing provision shall not prevent Customer fiom (a)
employing any such employee where the first contact between
it and the employee with regard to employment is made by the
employee on his or her own initiative without any direct or
indirect solicitation by or encouragement from Customer, (b)
placing any public advertisement or general solicitation that is
not targeted at any such employee specifically or employees of
Document Messaging Technologies generally (a "General
Solicitation") or (c) hiring any such employee where the first
contact between Customer and the employee with regard to
employment is made by the employee on his or her own
initiative in response to a General Solicitation and without any
other direct or indirect solicitation or encouragement from
Customer. The provisions of this Section 2.8 shall survive
termination of this Agreement as necessary to affect its
purpose.
3. MAINTENANCE CHARGES AND PAYMENTS
3.1 Commencing on the Service Date, Customer shall pay
to Pitney Bowes the maintenance charges described in
Schedule B. Pricing will be reviewed on an annual basis and
Pitney Bowes shall notify Customer in writing of any price
increases not less than thirty (30) days prior to the end of the
then -current term. Within thirty (30) days after its receipt of
such notice, Customer may terminate this Agreement by
delivering to Pitney Bowes written notice of its desire to
terminate, which notice must include the Customer account
number and be sent to Pitney Bowes by certified mail, return
receipt requested. Any such termination by Customer shall be
effective ten (10) business days after Pitney Bowes' receipt of
the notice of termination. If no such notice is received the
Agreement shall continue at the rates contained in the notice
sent to Customer. In the event Customer notifies Pitney
Bowes that it desires to have additional Products covered
under this Agreement, modifications to this Agreement will be
made by mutual agreement.
3.2 Pitney Bowes will invoice Customer for maintenance
charges in advance (or for any pro rata portion thereof) as of
the Service Date and annually thereafter. Such invoices are
(C0123363.1 )September 9, 2008
due thirty (30) days after the date of the invoice. If Customer
payment is not made in full on or before its due date, Customer
wilI pay Pitney Bowes a late payment administrative fee on the
delinquent payments in the amount of 1.5% per month (or the
maximum rate allowed by law) until paid in full. For each
dishonored or returned payment, Customer will pay Pitney
Bowes the applicable returned item fee. In the event that
charges due and owing have not been paid by Customer and
Pitney Bowes brings an action to collect such charges,
Customer shall pay Pitney Bowes for all costs and fees
(excluding attorneys' fees) incurred in the collection of any
unpaid amount as determined by a court of competent
jurisdiction.
3.3 For Products added after the Service Date, Pitney
Bowes will invoice Customer for monthly maintenance
charges on a pro rota basis. Extended hours of coverage will
also be invoiced by Pitney Bowes on a monthly basis.
3.4 Pitney Bowes will also invoice Customer for
additional fees that result from annual cycle volume overages
according to Schedule D.
4. OUTAGES
4.1 Once at the Customer site, the CSR has sixty (60)
minutes to diagnose the problem. Once the problem is
diagnosed, a time estimate for resolution shall be provided to
the Customer.
4.2 If the problem is not diagnosed within sixty (60)
minutes, the CSR will escalate to a senior CSR and the service
manager. The senior CSR shall try to diagnose the problem
over the phone based on the symptoms described by the site
R. A decision will be made by the senior CSR to go to the
site if unresolved. The Customer and service manager shall be
notified of the status as well as the estimated time of arrival of
the senior CSR.
4.3 Once at the Customer site, the senior CSR has sixty
(60) minutes to diagnose the problem. If the senior CSR does
not diagnose the problem, the Service Manager, and the
Division Director shall be notified for the purpose of
determining whether additional support is required.
4.4 If parts are required for diagnoses, confirmation on
parts availability must be made and the Customer, as well as
service management, must be informed.
5. TERMS AND CONDITIONS
5.1 Taxes. Customer shall pay all federal, state and local
sales, use, property and excise taxes imposed on or with
respect to this Agreement or the services provided hereunder.
If Customer is exempt from any applicable taxes pursuant to
this Agreement, Customer shall furnish Pitney Bowes with
sufficient documentation to indicate Customer's tax exempt
status.
5.2 Indemnification
(a) Pitney Bowes shall indemnify and defend
Customer and its officers, directors, and employees
(collectively referred to in this Section as "Customer"), against
any and all liabilities, claims, damages, costs, and expenses
(including reasonable attorneys' fees) of third parties resulting
from bodily injury or death to any person or tangible property
damage, to the extent that such injury or damage is caused by
Pitney Bowes' negligence or willful misconduct in its
performance of services while on Customers' business
premises.
(b) In the event that Customer• becomes aware of
any claim alleging bodily injury or death or tangible property
damage as described above, Customer shall immediately notify
Pitney Bowes. Pitney Bowes shall have the right and option in
the first instance, through counsel of its own choosing and its
own expense, to deal with, defend, settle or compromise any
such claim. If Pitney Bowes does not appoint counsel to deal
with, defend, settle or compromise any such claim after
receiving notice thereof, Customer may then deal with, defend,
settle or compromise such claim through counsel of its own
choosing at the expense of Pitney Bowes. In such event, (1)
Customer shall be permitted to control the defense of such
claim and shall keep Pitney Bowes advised with respect to the
conduct of such defense, settlement or compromise; (2) any
settlement or compromise shall be for the account of Pitney
Bowes; and (3) no settlement or compromise shall be made
without the prior written consent of Pitney Bowes, which
consent shall not be unreasonably withheld.
5.3 Default
If a material breach by either party of any of its
obligations or responsibilities under this Agreement is not
cured within thirty (30) days after the other party notifies the
breaching party thereof, the non -breaching party may by notice
to the breaching party terminate this Agreement.
5.4 No Implied Warranties
REPLACEMENT AND/OR ADDITIONAL PARTS USED
IN CONNECTION WITH THE MAINTENANCE OF THE
PRODUCTS HEREUNDER ARE PROVIDED WITHOUT
WARRANTY OF ANY KIND. PITNEY BOWES
DISCLAIMS ALL IMPLIED WARRANTIES INCLUDING
WITHOUT LIMITATION ANY IMPLIED WARRANTIES
OF MERCHANTABILITY OR FITNESS FOR A
PARTICULAR PURPOSE,
5.5 Limitation of Liability
EXCEPT FOR ANY ADDITIONAL INSURANCE
COVERAGE WHICH MAY BE PROVIDED TO THE
CUSTOMER PURSUANT TO SECTION 5.9 BELOW,
PITNEY BOWESTOTAL LIABILITY FOR ANY COST,
LOSS DAMAGE OR OTHER POTENTIAL OR ACTUAL
EXPENSES ARISING DIRECTLY OUT OF THE
EXECUTION, PERFORMANCE OR SUBJECT MATTER
OF THIS AGREEMENT SHALL NOT EXCEED THE
AMOUNT OF THE PAYMENTS MADE BY CUSTOMER
TO PITNEY BOWES HEREUNDER IN THE TWELVE (12)
MONTHS PRIOR TO THE EVENTS GIVING RISE TO
THE CLAIM. REGARDLESS OF THE FORM OF ACTION,
WHETHER IN CONTRACT, TORT OR OTHERWISE,
PITNEY BOWES SHALL IN NO EVENT BE LIABLE FOR
ANY DAMAGES FOR LOSS OF BUSINESS PROFITS,
BUSINESS INTERRUPTION, OR FOR INCIDENTAL,
CONSEQUENTIAL, INDIRECT, SPECIAL, PUNITIVE OR
OTHER DAMAGES ARISING OUT OF THIS
AGREEMENT, EVEN IF PITNEY BOWES HAS BEEN
ADVISED OF THE POSSIBILITY OF SUCH DAMAGES,
5.6 Force Majeure
Neither party shall be liable for any delays in
performance hereunder due to unforeseen circumstances
beyond its control, including, but not limited to, acts of nature,
governments, or terrorists, labor disputes, delays in
transportation, or delivery, or inability of suppliers to deliver.
5.7 Independent Contractor Relationship
Services by Pitney Bowes' employees, or persons
under conhact to Pitney Bowes, shall be performed hereunder
as independent contractors of Customer, and no such
employees or persons doing such work or subcontractors shall
be considered employees of Customer.
5.8 Complete Agreement
This Agreement, along with the Schedules attached
hereto, shall be the total and complete understanding of the
parties, as to the subject matter of the Agreement, superseding
all prior negotiations and discussions between the parties and
cannot be modified, waived or amended except as agreed to in
writing by both parties.
5.9 Insurance.
Customer shall be named as an additional insured
under Pitney Bowes General Liability policy for a maximum
of $5,000,000 in coverage for claims for bodily injury, death
and tangible property damage. Upon execution of the
Agreement, Pitney Bowes will provide a copy of the certificate
of insurance naming Customer as an additional insured.
5.10 Miscellaneous
(a) This Agreement shall inure to the benefit of
and be binding upon the successors and permitted assigns of
the parties hereof. Neither party may assign any interest in this
{C0123363.1 )September 9, 2008
L LE
Pitney Bowes
Agreement without the prior written consent of the other,
which shall not be unreasonably withheld or delayed; any such
purported assignment without such consent shall be null and
void.
(b) This Agreement shall be governed by,
construed and interpreted in accordance with, the laws of the
State of Texas without regard to its conflicts of laws
principles.
(c) Failure to enforce any rights hereunder or
under law, irrespective of the length of time for which said
failure continues, shall not constitute a waiver of those or any
other rights.
(d) Captions used herein are for the convenience
of the parties and shall not be used in construing the meaning
of this Agreement.
(e) If any of the provisions of this Agreement
shall be invalid or unenforceable, such provision(s) shall not
render the entire Agreement unenforceable or invalid but
rather this Agreement shall be read and construed as if the
invalid or unenforceable provision(s) are not contained
therein, and the rights and obligations of the parties shall be
construed and enforced accordingly.
written.
(f) The terms and conditions of Sections 3, 5
and 6 of this Agreement shall survive the termination of this
Agreement.
(g) This Agreement may be executed in one or
more counterparts, each of which shall be considered an
original, and together they shall constitute one and the same
instrument.
6. NOTIFICATIONS
Any notices or other communications pursuant to this
Agreement by either party shall be communicated in writing,
shall be effective upon receipt and shall be personally
delivered or sent via U.S. registered or certified mail, first
class postage prepaid. Any notices or communications shall
be sent to the parties at their addresses set forth in this
Agreement unless a party otherwise notifies the other party.
Notices or communications to Customer shall be sent to the
attention of Customer's Vice President of Purchasing. Notices
or communications to Pitney Bowes shall be sent to
the attention of the President, Document Messaging
Technologies.
IN WITNESS WHEREOF, the undersigned hereby execute this Agreement on behalf of the parties as of the date first above
PITNEY BOWES INC., through its DOCUMENT MESSAGING
TECHNOLOGIES DIVISION
By:
Signature
Print or Type Name I
Title
Date
Marty �Iendrix,
CITY OF FT. WORTH
By:
Print or Type Name
l
�i� � ,��S�Si�ANT �►
Title
ate
APPROVED AS TO
FORM AND. ,LEGALITY.
ASSISTAKT CITY ATTORNEY
{C0123363.1 )September 9, 2008
N® M&C RCQUIItID
SCHEDULE A
EQUIPMENT COVERED UNDER MAINTENANCE AGREEMENT:
Products model and serial number:
Model
#
Serial
#
R406
3592
J624
4228
R78X
101025
R750
1010371
Location: Ft Worth, TX
Service Date: December 1, 2008 through November 30, 2009
On -call maintenance schedule: Monday -Friday Sam to Spm.
{C0123363.1}September9,2008 Page 5 of 9
SCHEDULE B
Please choose from the following options: (place an (X) next to the option of your choice)
PRICING
OPTION 1:
Single Year Term
(D 12/01/08 through
11/30/09
❑ $6,064Annually
OPTION 2:
Two Year Term
12/01/08 through
11/30/10
❑ $6,213 Annually
❑ $12,302 Prepaid
OPTION 3:
Three Year Term
12/01/08 through
11/30/11
❑ $6,368 Annually
❑ $18,913 Prepaid
P `vc rtft-'ftt o ("emir" omh i t f3Chie ,+)it in 2 ?l,'r.t/ (`�ti) izlays of lk Dore..
Price includes: On -call service coverage, parts and labor, Monday through Friday, 8:00 a.m. — 5:00 p.m. excluding Pitney
Bowes observed holidays.
On call fees and additional on site coverage:
The charge for on site service for non covered shifts per CSR is $1,200 per shift, and coverage for holiday on site service
per CS R is $1,800 per shift.
Additional on -call coverage may be provided on Saturday's as follows:
$172.00 per shift for on -call availability (8 hours)
$172.00 per hour, 2 hour minimum, portal to portal
Additional on -call coverage may be provided on Sunday's as follows:
$344.00 per shift for on -call availability (8 hours)
$344.00 per hour, 2 hour minimum, portal to portal
Additional on -call coverage maybe provided on a holiday as follows:
$516.00 per shift for on -call availability (8 hours)
$516.00 per hour, 2 hour minimum, portal to portal
{coizss6s.i }sePtemne� 9, zoos Page 6 of 9
Schedule C
SOFTWARE MAINTENANCE SCHEDULE
1. SCOPE AND TERM OF SCHEDULE
1.1 This schedule relates to maintenance for Pitney Bowes software and/or databases, as well as for software and
databases developed by third parties and distributed under license by Pitney Bowes (collectively the "Licensed Programs"),
all as further described in Schedule A to the On -Call Equipment Maintenance Agreement (`EMA") to which this Schedule is
attached and made a part thereof. By executing the EMA, Pitney Bowes agrees to provide to Customer and Customer hereby
subscribes to Software Maintenance Services ("SMS") and Database Services ("DBS") for the Licensed Programs subject to
the following additional terms and conditions:
1.2 The term of this schedule for SMS and DBS shall be the same as the EMA between Customer and Pitney Bowes.
Termination of the EMA shall automatically terminate this Schedule without further action by either party. The services
provided herein will be included in the on -site EMA fee detailed in Schedule B. Similarly, termination of the agreement
pursuant to which the Licensed Products were licensed shall result in termination of this Schedule
1.3 Notwithstanding anything contained herein to the contrary, Pitney Bowes may terminate this Schedule upon one (1)
business day's written notice to Customer if Customer breaches the payment provision of the EMA, and such breach is not
cured within ten (10) business days after receipt of written notice from Pitney Bowes.
2. SOFTWARE MAINTENANCE SUPPORT
2.1 Software Maintenance. Software maintenance shall consist of the distribution by Pitney Bowes to Customer of fixes
made from time to time to the Licensed Programs ("Fixes").
2.2 Fixes. Fixes to the Licensed Programs may include all or part of the following:
• Fixes to previously reported "bugs" to the Licensed Programs
• Technical improvements to the Licensed Programs
2.3 Customer shall be advised of required Fixes made to the Licensed Programs during the term of maintenance support.
Fixes shall be made available to Customer, for implementation by Customer or Pitney Bowes using the method deemed most
appropriate; however, installation of a Fix to Licensed Programs which have been modified by Customer or Pitney Bowes
may require additional modifications, for which there will be an additional charge.
2.4 Upgrades and Version Releases. Upgrades and version releases to the Licensed Programs may be issued
periodically by Pitney Bowes, shall consist of additional and enhanced functions, may be available at an additional charge to
the Customer, and may be installed at Customer's option. Upgrades incorporate functional and technical capability not
provided in the last Version Release but deemed required prior to the next Version Release ("Upgrade(s)"). Version releases
incorporate all of the Upgrades; including functionality changes, and Fixes which have been issued since the previous release
("Version Release"). Installation of an Upgrade or Version Release to a Licensed Program that has been modified by Pitney
Bowes at Customer's request ("Modified Licensed Programs") may require additional modification, for which there will be an
additional charge. All Version Releases, Upgrades, and Fixes provided under this Schedule shall be subject to the terms and
conditions of the applicable agreement pursuant to which the original Licensed Program was licensed.
2.5 DBS will consist of distribution at no additional charge to Customer of updates to the databases identified in the
relevant purchase and/or license agreement; as such updates are made available by Pitney Bowes from time to time. DBS
updates include postal or carrier rate changes, all zip or zone changes, and changes in service provided by carriers, provided
that Pitney Bowes does not warrant the availability, accuracy or timely dissemination of non -Pitney Bowes originated source
data incorporated in the databases.
2.6 Notwithstanding anything in this Schedule to the contrary, Pitney Bowes will not be responsible under this Schedule:
(i) for maintaining any Licensed Programs that Customer has failed to operate properly on the approved platform; (ii) if the
Licensed Programs are not used in accordance with the agreed applications and for the ordinary purpose for which they are
designed; (iii) if the inability of any Licensed Program to perform is due to any act or failure to act on the part of Customer,
including without limitation, any alteration of or adding components to any Licensed Program or failure to install updates,
{C0123363.1 )September 9, 2008 Page 7 of 9
Version Releases, Upgrades or Version releases; (iv) unqualified operatorsuse of the Licensed Programs; (v) use of the
Licensed Programs in a manner not intended; (vi) use of the Licensed Programs to process applications not previously
approved in writing by Pitney Bowes; (vii) if the Licensed Programs have been operated with other media, not meeting or not
maintained in accordance with the manufacturer's specifications; or (viii) where Customer's service issue results from a
problem other than from the Licensed Programs. If Pitney Bowes performs any SMS or DBS as a result of any of the
foregoing, the Customer shall pay Pitney Bowes at Pitney Bowes' normal rates in effect at such time. Pitney Bowes is not
responsible for maintaining software and/or hardware that communicates or operates with the Licensed Programs, and
Customer hereby agrees to indemnify and hold harmless Pitney Bowes in the event that any such communicating or operating
software or hardware causes loss or damage to the Licensed Programs or related equipment. Customer shall promptly notify
Pitney Bowes of any unauthorized alteration of or addition to the Licensed Programs that occurred after Customer accepted
the Licensed Programs.
2.7 If Customer upgrades to a new release, i.e., major enhancements and/or new functionality of the programs
licensed by Pitney Bowes, the SMS provided hereunder may be transferred to the new release at the then
current subscription fee for the new release less credit for fees previously paid hereunder.
{C01233631 }September 9, soos Page 8 of 9
SCHEDULE D
ANNiJAL CYCLE VOLUME:
Effective dates of the Agz Bement: see Schedzzle B.
This Agreement will cover 1 Series inserter system with annual volume count of 3 million cycles (each or per).
All cycles exceeding this amount will be subject to an additional fee according to the rate schedule below:
Machine type: Series
Maximum number of annual cycles: 3 million
Overage rate: .0020 per cycle
The number of annual cycles is determined by measuring complete cycles and not individual page counts.
{C0123363.1 }September 9, zoos Page 9 of 9