HomeMy WebLinkAboutContract 47297 CITY
COMACT
ServiceFlex Time & Material Service Agreement
This Service Agreement ("Agreement") is made and entered into as of November 23, 2015 ("Effective
Date") between City of Fort Worth, Fort Worth, TX ("Customer") and Audio Visual Innovations, Inc.
("Supplier") located at 6301 Benjamin Road, Suite 101, Tampa Florida 33634.
1. Applicability of these Terms and Conditions.
Except as expressly set forth below or as otherwise mutually agreed to by the parties in writing, these
Service Terms and Conditions set forth the terms and conditions pursuant to which Supplier will provide
Services to end user customers of Supplier Products ("Customer", "You" or "Your") based upon such
Service Programs which Customer has purchased from Supplier.
By submitting a purchase order for Services to Supplier, Customer agrees to be bound by these Terms and
Conditions. Unless otherwise agreed in writing by Supplier, no other terms and conditions endorsed upon,
delivered with or contained in an end user's purchase order, or in any other similar document, will amend,
or vary the provisions of these Terms and Conditions.
2. Definitions.
In the Terms and Conditions, the following terms shall have the following meanings:
2.1. "Products"means equipment and software generally made available in the marketplace.
2.2. "Manufacturer" means an entity that produces equipment and/or Software.
2.3. "Services" means the Supplier branded services provided under a relevant Service Program,
2.4. "Software" means programs or applications developed, installed or released by the manufacturer
or third party integrator to control the function of a device, feature or function.
2.5. "Software Options" means optional functionality or features of Software that may be selected at
the time of purchase or at a later time, and for which Supplier or Manufacturer charges separately.
2.6. "T&M"—means Time and Material.
2.7. "Update" means Software for which Supplier or the Manufacturer has provided fixes or minor
revisions to correct errors or defects in the existing operation of the Software in accordance with
the published Product specifications, and which is limited to those updates that Supplier or
Manufacturer generally provides to its support Services customers at no charge. Updates do not
include Upgrades or Software Options.
2.8. "Upgrade" means new releases of the Software which contains enhancements improving the
functionality or capabilities of the Software, which Supplier or Manufacturer may make available
to its support Services customers. Upgrades do not include Software Options.
3. Service Description.
Supplier's ServiceFlex Time and Material (T&M) program is a pre-paid or pre-authorized audio/visual
support service which includes remote help desk support, incident management tracking, manufacturer
warranty facilitation, on site technician dispatch, replacement parts order and parts fulfillment services for
the purpose of audio/visual and video equipment reactive repair.
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3.1. 'technical Help Desk
Supplier's remote help desk is available Monday through Friday from 8:00 am to 6:00 pm local time
with in the continental United States excluding Supplier holidays. The help desk is the first point
of contact for all customer support inquiries and is available via phone and e-mail. All support
requests are logged by the help desk technician or in the case of email automatically logged into the
Supplier's case management system. The help desk technician will make every attempt at
remote resolution. In the event remote troubleshooting does not resolve the incident and hardware
replacement is determined necessary by the Supplier to affect resolution, the help desk technician
will provide a quotation for parts and/or labor rate for onsite field services to the requestor.
3.2. Onsite Technical Support
Supplier will provide onsite technical support for replacement parts and/or where onsite dispatch is
deemed required by the Supplier's help desk. Onsite dispatch is coordinated by the Supplier to
ensure field technicians arrive in conjunction with Supplier provided replacement parts. Dispatch
of Supplier technician as well as replacement parts orders are subject to requestor approval per
occurrence. Where manufacturer parts are available for next business day shipping, Supplier will
dispatch the onsite technician to arrive on the same business day of the shipment, providing
manufacture delivery timeframe allows the estimated labor hours to perform the replacement.
Onsite dispatch is subject to manufacturer parts availability, shipping policies and maybe subject to
confirmation of valid payment method.
On arrival, Supplier's onsite technician will validate the incident source, inspect Supplier provided
replacement parts, install the replacement components and perform testing to ensure the device is
returned to an operational state. On successful completion of the repair, Supplier's onsite
technician will present a work order to the requestor or Customer site contact for review and
approval. Supplier is not responsible for the packaging or disposal of the replace components.
3.3. Parts Replacement and Fulfillment
3.3.1 Non-warranty Parts Replacement:
Supplier is able to source replacement products for industry standard audio/visual devices from
over 700 manufacturers. Supplier will make best effort attempt to procure replacement or suitable
substitute directly from the manufacturer or an authorized distributor. Supplier will not procure
replacement parts from non-contracted manufacturers or distributors. Supplier's ability to fulfil
replacement parts is subject to manufacturer parts availability outside of a warranty or maintenance
contract. Replacement parts provided by the Supplier will be either new parts or parts equivalent
in performance to new parts when used with the Product, and are warranted for ninety (90) days
from shipment or the remainder of the initial warranty period, whichever is longer.
Supplier may,.from time to time have the ability to offer stock or returned merchandise at reduced
costs to Customer. Supplier initiation of a replacement parts order is subject to requestor approval
and maybe subject to confirmation of valid payment method. T&M non-warranty parts replacement
applies to any device or component not covered under manufacturer's warranty including
consumables.
3.3.2. Warranty Parts Repair/Replacement
Some equipment may be repairable or replaced at no charge under the manufacturer's Warranty
policy. Labor for remote help desk and onsite installation is subject to Supplier Time & Material
fees. The Help Desk will assist the customer to arrange return of the defective equipment to the
manufacturer for service/replacement.
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Parto removed from Products for replacement will become the property of Supplier or the
Manufacturer, and if replaced by the Customer must be received back to the local Supplier service
facility(as the same is listed on the pre-addressed return package provided by Supplier)within ten
(10) business days of receipt of the replacement part, or you will be invoiced the full list price for
the replaced part.
3.4 Software Updates, Upgrades and Options
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Software Updates or Upgrades are available based on the manufacturer's distribution and license
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entitlement policies. Where Software Updates and/or Upgrades are made pub|ioa||y available nr
available for equipment covered under manufacturer warranty, Supplier will facilitate Updates or
Upgrades on a fix or fail basis. That ia, to obtain on available Update the customer must oa||
Supplier to report a specific customer product exhibiting a ponb|em, which the Update corrects.
Supplier will provide remote configuration support for the Update or Upgrade according to the
software record of the registered Product.
3.5 Balance Statements
Supplier will provide o monthly 8emivaF|ox balance statement via e-mail to the Customer
authorized contact, Monthly balance statements will include the amount of pre-paid or pre-
authorized funds available based on closed T&[N support cases. Low balance e-mail notifications
will be sent in the event the pre-paid or pre-authorized balance is$500 USD or less.
4. Services; Orders.
In order to receive Services under Service Program pursuant to the Terms and (}onditionm, you must
submit a purchase order or valid credit card to Supplier for the initial contract value. Purchase orders must
refer to Supplier quote identification number. Supplier will determine the pricing and payment terms
associated with any Service Program which you purchase. All orders are subject to acceptance bySupplier,
and no ob|igedon, including m purchase order, ehoU be binding on Supplier unless and until such order is
accepted by Supplier,or, if earlier, Services are provided toCustomer. Please note that only those Products
|iobad on o valid quotation applicable to your purchase order will be covered by Service PnoQnyma under
these Terms and Conditions. Any optional services for Services Program available to Customers for an
additional fee will be invoiced separately with payment terms as specified within such Service Program. No
employees of the Customer or its officem, ogenhs, oervanho, vendors or eubvondora who act on behalf of
various depadmenbs, bodies or agencies are authorized to place ondane for goods and/or services without
providing approved contract numbem, purchase order numbnm, or release numbers issued by the
Customer. The only exceptions are Purchasing Card orders and emergencies pursuant hoTexas Local
Government Code Section 252.022(a)(1). (2). or (3). In the uone of emergencies, the Customer's
Purchasing Division will place such orders.Acceptance of an order and delivery on the part of the Supplier
without an approved contract number, purchase order number, or release number issued by the Customer
may result in rejection of delivery, return of goods at the Seller's cost and/or non-payment.
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S. Service Period.
SomiceFlexT&M service contracts are available on o pre-paid orpna+suthorizod value for a 12-month or
36-monthpohod. Contracts will automatically expire the earlier of the scheduled expiration date or when
the pre-paid or pre-authorized value has been exhausted. Customers may elect to apply additional pre-
paid or pre-authorized funds to the contract to extend services to the contract expiration date at any time
during the term.
Repair work on the covered equipment, which was begun prior to the expiration of the agreement, shall be
completed by Supplier and subject to the contracted T&yN rehoo. This agreement shall not automatically
renew. A new agreement must be signed in order to provide coverage beyond the expiration date of this
agreement. Either party may decline to enter into a new agreement.
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6. Service Activation.
Service coverage will begin immediately upon receipt of an authorized purchase order or payment in full, if
required by Supplier.
7. Service Level Agreement.
Supplier will provide an Average Speed of Answer(ASA) of 60 seconds for support calls placed to its help
desk Monday through Friday, 8 AM to 5 PM local standard time excluding Supplier published holidays.
Supplier will respond to new service requests made via email or web portal within four(4) hours with case
assignment notification Monday through Friday, 8 AM to 5 PM local standard time excluding Supplier
published holidays.
When applicable, Supplier will provide a two business day onsite response pursuant to the Help Desk's
determination that a dispatch is required for incident remediation. This service level may be impacted by
room availability and the requirement for replacement parts. All onsite activity will be scheduled Monday
through Friday, 8 AM to 5 PM local standard time excluding Supplier published holidays.
When a case is opened, the Help Desk will classify the case in accordance with the following incident
priority classifications:
• P1: Critical—System outage equipment or room system fully non-functional
• P2: Major—System impaired but operational quality or features diminished
® P3: Minor—System operational with acceptable quality features are diminished
® P4: Informational—End User"How To" inquiry, request for configuration modification
8. Service Program Exclusions.
Unless otherwise specified, Service Programs do not cover any of the following: (i)electrical work and/or
in-house cabling external to the Product; (ii)repair or replacement of Product resulting from causes external
to the Product, including disaster, fire, flood, earthquake, tornado accident, neglect, misuse, vandalism,
water, corrosion, power surges, unconditioned or fluctuating power, lightning, customer-provided network,
or failure of the installation site to conform to manufacturer specifications; or resulting from use of the
Product for other than intended purposes; or resulting from use of the Product with items not provided or
approved by Supplier; or resulting from the performance of maintenance or the attempted repair of an item
of a Product by persons other than Supplier employees or persons authorized by Supplier; (iii) repair or
replacement of Product excluded by or no longer covered by the Product manufacturer's (iv) Services in
connection with the relocation of the Product, or the addition or removal of items of equipment or parts,
attachments, features, from or to other devices not furnished by Supplier including facilitation of customer
spare or loaner equipment, including communications devices, video devices, audio devices, networks or
links; (v)Services in connection with computer viruses or conflicts involving software that is not installed or
introduced by Supplier including coverage for "OFE" (Owner Furnished Equipment) unless specifically
listed as covered equipment or devices not installed by Supplier and not specifically covered under this
agreement.
9. Charges and Payment Terms
Payment terms are NET 30 Days from the date of invoice. All fees and payments outlined in this agreement
are in US Dollars. Pre-paid agreements will be invoiced in full upon execution of the agreement. Pre-
Authorized agreements will be invoiced at on customer acceptance of Supplier's work order per event.
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Travel time is billable at the Time and Material rate schedule from portal to portal. Travel expense including
hotel, airfare will be billed to the Customer based on actual cost incurred.
10. 'Termination
Either party may at its option terminate any applicable Service Program in whole or in part for cause: (i) if
the other party breaches any material term or condition hereunder or under any applicable Service Program,
and fails to remedy such failure within thirty(30)calendar days after receipt of written notice of such default;
(ii)in the event that any proceedings are commenced against the other party or such party seeks protection
under bankruptcy, insolvency, or other debtor's relief law or (iii) the other party becomes insolvent or
dissolves. Furthermore, Supplier may terminate any applicable Service Program in whole or in part or cause
if any person other than a Supplier employee, or designated service representative, alters a Product without
Supplier's prior written consent, or in any way renders a Product unsafe(adjustments to a Product made at
the direction of Supplier or the Manufacturer or as otherwise intended as set forth in the applicable Product
documentation do not constitute alterations for the purposes of this Section). In the event of cancellation
due to non-payment, the customer agrees to be liable for all services provided by Supplier up to the date
of contract termination.
Supplier reserves the right to terminate or modify available Service Programs at any time in its sole
discretion; provided, that any such modifications will not affect any Service Programs already ordered by
you and accepted by Supplier prior to such modifications except as mutually agreed by both parties.
11. Renewal of Service Programs
Continuation of coverage for a contract will be provided uninterrupted if the renewal is purchased prior to
the anniversary date of the previous contract. Supplier will put forth best effort to provide you with sixty
(60)days prior written notice of expiration of the Service Period for each Service Program you purchase
that is renewable. Supplier reserves the right to charge you the then-current Time and Material rates for
any Services provided to you after the contract expiration or in the event of a zero balance for pre-paid
service contracts. Pre-paid contracts with unused balances will be credited to the renewal term by the
Supplier. Supplier will not issue refunds for non-renewed contracts with unused funds.
12. Customer Obligations
12.1 Software updates and upgrades are the responsibility of the customer. Assistance may be
requested from the Help Desk to gain access to the software or if issues are encountered.
Software updates do not mandate an onsite service call.
12.2 Customer is required to assist the Supplier Help Desk technician with the remote diagnosis of
the reported problem to help determine the cause of the problem. Parts replacement and onsite
service may not become available until the Help Desk is provided the appropriate information
or support to diagnose the problem.
12.3 If applicable, you will provide Supplier personnel with access to the Products and adequate
working space (including heat, light, ventilation, electric current and outlets) at no charge to
Supplier. All Customer environments must be free from all risks to health and safety (except to
the extent notified to Supplier in writing and specifically accepted in writing by Supplier).
12.4 If applicable, you will maintain, at your expense, the installation site and provide the necessary
utility services for use of the Product in accordance with the Manufacturer's applicable published
specifications.
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12.5 You will be responsible for replacing, at your own expense, any and all consumable items used
in connection with the Products, including without limitation, bulbs and batteries unless
specifically requested per event.
12.6 Equipment Operation and Alteration: The customer must operate the equipment as detailed in
the user operations manual provided by the manufacturer with the covered equipment and as
trained by AVI-SPL during installation.
12.7 Supplier strongly recommends that you install and use a current, reputable anti-virus program
in connection with any PC-based, open-architecture Product, and that you regularly update and
run such anti-virus program, especially in connection with the emergence of any new viruses
and/or 'worms'. Repair or restoration of any Product damaged or 'infected' by viruses is not
covered under these Terms and Conditions or the Service Programs.
12.8 You are solely responsible for backing up your data. Supplier will not under any circumstances
have a duty to back up your data or to restore data that is lost in the course of Supplier's
provision of Services, or otherwise. Supplier will not be liable for the loss of your data, whatever
the reason for the loss, including without limitation as a result of Supplier's negligence. The
preceding limitation applies to any cause of action, whether based in contract, tort, or any other
theory.
13. Intellectual Property
Each party shall retain all right, title and interest in and to, and possession of their respective preexisting
intellectual property. Furthermore, Supplier shall retain all right, title and interest in and to, and possession
of, any know-how, technical information, specifications, documents, ideas, concepts, methods, processes,
techniques and inventions developed or created by or on behalf of Supplier relating to Services performed
under or in relation to a Service Program. Any intellectual property, know-how, information or documents
supplied at any time by one party to the other shall be treated as confidential and covered by the
confidentiality undertaking in Section 15 below.
14. Warranty/Limitation of Liability
SUPPLIER WARRANTS FOR NINETY(90) DAYS FROM THE PERFORMANCE OF ANY SERVICES BY
SUPPLIER PURSUANT TO THESE TERMS AND CONDITIONS THAT SUCH SERVICES SHALL BE
PERFORMED IN A WORKMANLIKE MANNER CONSISTENT WITH GENERALLY ACCEPTED
INDUSTRY STANDARDS. SUPPLIER MAKES NO OTHER WARRANTY, EITHER EXPRESS OR
IMPLIED, INCLUDING, BUT NOT LIMITED TO, ANY WARRANTY OF FITNESS FOR A PARTICULAR
PURPOSE OR OF MERCHANTABILITY. SUPPLIER MAKES NO WARRANTY THAT OPERATION OF
THE PRODUCT SERVICED WILL BE UNINTERRUPTED OR ERROR FREE. IN NO EVENT WILL
SUPPLIER BE LIABLE FOR ANY DELAY IN FURNISHING SERVICES. CUSTOMER MUST REPORT IN
WRITING ANY BREACH OF THIS WARRANTY TO SUPPLIER DURING THE ABOVE WARRANTY
PERIOD, AND CUSTOMER'S EXCLUSIVE REMEDY AND SUPPLIER'S ENTIRE LIABILITY FOR ANY
BREACH OF SUCH WARRANTY.SHALL BE TO REPERFORM THE SERVICES, OR IF SUPPLIER IS
UNABLE TO RE-PERFORM THE SERVICES AS WARRANTED, CUSTOMER SHALL BE ENTITLED TO
RECOVER THE PRORATED FEES PAID TO SUPPLIER FOR THE NONCONFORMING SERVICES.
EXCEPT FOR BREACHES OF CONFIDENTIALITY OR INTELLECTUAL PROPERTY IN NO EVENT WILL
EITHER PARTY BE LIABLE FOR INCIDENTAL,CONSEQUENTIAL, SPECIAL OR INDIRECT DAMAGES,
LOST BUSINESS PROFITS, OR LOSS, DAMAGE OR DESTRUCTION OF DATA, REGARDLESS OF
THE FORM OF ACTION, WHETHER IN CONTRACT, TORT(INCLUDING NEGLIGENCE), BREACH OF
WARRANTY OR OTHERWISE, EVEN IF SUCH PARTY HAS BEEN ADVISED AS TO THE POSSIBILITY
OF SAME EXCEPT FOR BREACHES OF CONFIDENTIALITY OR INDEMNITY OBLIGATIONS,
SUPPLIER'S MAXIMUM LIABILITY FOR ALL OTHER DAMAGES WILL BE LIMITED TO (1) ONE (1)
YEAR'S SERVICE CHARGES (IN THE CASE OF SERVICE PROGRAMS WITH AN APPLICABLE
SERVICE PERIOD) OR (11) AGGREGATE SERVICE FEES PAYABLE TO SUPPLIER PURSUANT TO
THE APPLICABLE SERVICE PROGRAM (IN THE CASE OF SERVICE PROGRAMS WITH NO
APPLICABLE SERVICE PERIOD). THIS LIMITATION OF LIABILITY IS CUMULATIVE AND NOT PER
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INCIDENT. SOME STATES OR JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION
OF INCIDENTAL OR CONSEQUENTIAL DAMAGES AND IN SUCH EVENT, THE FOREGOING
EXCLUSIONS AND LIMITATIONS SHALL ONLY APPLY TO THE EXTENT PERMITTED BY
APPLICABLE LAW, NOTWITHSTANDING THE FOREGOING, NOTHING IN THESE TERMS AND
CONDITIONS SHALL BE DEEMED TO LIMIT OR EXCLUDE EITHER PARTY'S LIABILITY FOR (1)
FRAUD OR FRAUDULENT MISREPRESENTATION OR (11) DEATH OR PERSONAL INJURY TO THE
EXTENT THAT IT RESULTS FROM SUCH PARTY'S NEGLIGENCE AND SOLELY TO THE EXTENT
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REQUIRED BY APPLICABLE LAW. NOTWITHSTANDING THE FOREGOING, NOTHING CONTAINED
HEREIN SHALL BE CONSTRUED AS THE CUSTOMER BEING REQUIRED TO ESTABLISH A SINKING
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FUND OR LEVY A TAX TO MEET THE REQUIREMENTS CONTAINED WITHIN THIS AGEEMENT.
15. Confidentiality
Confidential Information, Each party (the "Disclosing Party") may from time to time during the Term
disclose Lo the other party (the Recipient") certain information regarding the Disclosing Party's buninens,
including its products, inventiona, openetiona, methodu|ogies, aystomo, prooeoses, product development
plans or inh*ntione, know-how, doeiyna, trade oounato, market opportuniUeo, business or financial affairs,
and teohnica|, marketing, finonoie|, amp|oyaea, p/anning, and other confidential or proprietary information
("Confidential Information"). Supplier's Confidential Information includes (without limitation) the function
and performance of the Products, the terms of this Agvaement, and any other information relating to the
Products or the sale thereof. Confidential Information includes information disclosed onaUy, vinuaUy, or
through any tangible medium.
Protection of Confidential Information. Recipient will not use any Confidential Information of the
Disclosing Party for any purpose not expressly permitted by these Terms and Conditions or to carry out the
Sewioea, and will disclose the Confidential Information of the Disclosing Party only to the employees or
contractors of Recipient who have a need to know such Confidential Information for purposes of carrying
out the Services and who are under duty of confidentiality no |eoo restrictive than Recipient's duty
hereunder. Recipient will protect the Disclosing Party's Confidential Information from unauthorized uso,
uocesa, or disclosure in the same manner as Recipient protects its own confidential or proprietary
information ofu similar nature and with no less than reasonable care.
Residuals. The Recipient shall be free to use for any purpose the residuals noau|Ung from access tnor
work with the Confidential Information of the Disclosing Party, provided that the Recipient shall not disclose
the Confidential Information except as expressly permitted hereunder. The term "moiduo|m^ means
information in intangible form, which is retained in memory by persons who have had ocooso to the
Confidential /nfnnnaUon, including ideao, ooncepta, know-how or techniques contained therein. The
Recipient shall not have any obligation to limit or restrict the assignment of such persons or to pay royalties
for any work resulting from the use ofresiduals. However, this section shall not be deemed to grant hnthe
Recipient o license under the Disclosing Party's copyrights orpatents
Exceptions. Recipient's obligations with respect to any Confidential Information of the Disclosing Party will
terminate if and when Recipient can document that such information: (a) was already lawfully known to
Recipient at the time of disclosure by the Disclosing Party; (b) vVao disclosed to Recipient by a third party
who had the right to make such disclosure without any confidentiality restrictions; (c) is, or through no fault
ufReoipienthasbeoome.genenaUyavai|ab|etothepub|ic;or(d)vvaaindependent|ydeve|opedhyReoipiont
without aooeee (o, or use of, the Disclosing Party's Confidential Information. In addition, Recipient will be
allowed to disclose Confidential Information of the Disclosing Party to the extent that such disclosure is (i)
approved in advonoe, in writing by the Disclosing Party, (ii) necessary for Recipient bz enforce its rights
under these Terms and Conditions in connection with a legal proceeding; or(iii) required by law or by the
order or a court of similar judicial or administrative body, provided that Recipient notifies the Disclosing
Party of such required dien|naura promptly and in writing and cooperates with the Dioo|ue)ng Party. at the
Disclosing Party's request, in any lawful action to contest or limit the scope of such required disclosure.
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16. Right to Audit
The Supplier and Customer agree that until the expiration of three (3) years after the final payment under
this contract, the Customer shall have access to and the right to examine any directly pertinent books,
documents, digital files, papers and records of the Supplier involving transactions relating to performance
under this Contract. Customer shall pay Supplier for reasonable costs of any copying in accordance with
the standards set forth in the Texas Administrative Code. Customer shall give Supplier reasonable advance
written notice of intended audits, but no less than ten (10) business days.
17. Fiscal Funding Limitation
In the event no funds or insufficient funds are appropriated and budgeted in any fiscal period for payments
due under this contract, the Customer will immediately notify Supplier of such occurrence and this contract
shall be terminated on the last day of the fiscal period for which funds have been appropriated without
penalty or expense to the Customer of any kind whatsoever, except to the portions of annual payments
herein agreed upon for which funds shall have been appropriated and budgeted or are otherwise available.
16. Dispute Resolution
If either Buyer or Seller has a claim, dispute, or other matter in question for breach of duty, obligations,
services rendered or any warranty that arises under this Agreement, the parties shall first attempt to resolve
the matter through this dispute resolution process. The disputing party shall notify the other party in writing
as soon as practicable after discovering the claim, dispute, or breach. The notice shall state the nature of
the dispute and list the party's specific reasons for such dispute. Within ten (10) business days of receipt
of the notice, both parties shall make a good faith effort, either through email, mail, phone conference, in
person meetings, or other reasonable means to resolve any claim, dispute, breach or other matter in
question that may arise out of, or in connection with this Agreement. If the parties fail to resolve the dispute
within sixty (60) days of the date of receipt of the notice of the dispute, then the parties may submit the
matter to non-binding mediation upon written consent of authorized representatives of both parties in
accordance with the Industry Arbitration Rules of the American Arbitration Association or other applicable
rules governing mediation then in effect. If the parties cannot resolve the dispute through mediation, then
either party shall have the right to exercise any and all remedies available under law regarding the dispute.
19. Disability
In accordance with the provisions of the Americans With Disabilities Act of 1990(ADA), Seller warrants that
it and any and all of its subvendors will not unlawfully discriminate on the basis of disability in the provision
of services to general public, nor in the availability, terms and/or conditions of employment for applicants
for employment with, or employees of Supplier or any of its subvendors. Supplier warrants it will fully comply
with ADA's provisions and any other applicable federal, state and local laws concerning disability and will
defend, indemnify and hold Customer harmless against any claims or allegations asserted by third parties
or subvendors against Customer arising out of Supplier's and/or its subvendor's alleged failure to comply
with the above-referenced laws concerning disability discrimination in the performance of this agreement.
20. Public Information
Any information submitted to the Customer may be requested by a member of the public under the Texas
Public Information Act. See TEX. GOVT CODE ANN. §§ 552.002, 552.128(c) (West Supp. 2006). If the
Customer receives a request for a Supplier's proprietary information, the Supplier listed in the request will
be notified and given an opportunity to make arguments to the Texas Attorney General's Office (the"AG")
regarding reasons the Supplier believes that its information may not lawfully be released. If Supplier does
not make arguments or the AG rejects the arguments Supplier makes, Supplier's information will be
released without penalty to the Customer.
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21. Immigration Nationality Act
The Customer actively supports the Immigration & Nationality Act (INA) which includes provisions
addressing employment eligibility, employment verification, and nondiscrimination. Supplier shall verify the
identity and employment eligibility of all employees who perform work under this Agreement. Supplier shall
complete the Employment Eligibility Verification Form (1-9), maintain photocopies of all supporting
employment eligibility and identity documentation for all employees, and upon request, provide Supplier
with copies of all 1-9 forms and supporting eligibility documentation for each employee who performs work
under this Agreement. Supplier shall establish appropriate procedures and controls so that no services will
be performed by any worker who is not legally eligible to perform such services. Customer shall have the
right to immediately terminate this Agreement for violations of this provision by Supplier.
22. Network Access
The Customer owns and operates a computing environment and network (collectively the "Network"). If
Supplier requires access, whether onsite or remote, to the Customer's network to provide services
hereunder, and the Supplier is required to utilize the Internet, Intranet, email, Customer database, or other
network application, Supplier shall separately execute the Customer's Network Access Agreement prior to
providing such services. A copy of the Customer's standard Network Access Agreement will be provided
upon request.
23. Independent Vendor
Supplier shall operate hereunder as an independent vendor and not as an officer, agent, servant or
employee of Customer. Supplier shall have exclusive control of, and the exclusive right to control, the
details of its operations hereunder, and all persons performing same, and shall be solely responsible for
the acts and omissions of its officers, agents, employees, vendors and sub-vendors. The doctrine of
respondeat superior shall not apply as between Customer and Supplier, its officers, agents, employees,
vendors and subvendors. Nothing herein shall be construed as creating a partnership or joint enterprise
between Customer and Supplier, its officers, agents, employees, vendors and subvendors.
24. Force Majeure
Except for the obligation to make timely payments, neither party will be liable to the other for delays or
failures to perform occasioned by causes beyond its reasonable control. Such acts or events shall include
but not be limited to, acts of God, civil or military authority, civil disturbance, riot, fire, strikes, lockouts or
slowdowns, factory or labor conditions, inability to obtain necessary labor, materials or manufacturing
facilities, delayed issuance of export control licenses. In the event of such delays or failures to perform,
any dates or times by which Supplier is otherwise scheduled to perform shall be extended automatically for
a period of time equal in duration to the additional time required because of the delay or failure to perform.
Each of the parties shall promptly inform the other of any event of force majeure, its expected duration and
cessation, respectively.
25. General
Except as otherwise set forth in these Terms and Conditions, these Terms and Conditions may only be
modified by a written agreement duly signed by authorized representatives of both parties, and variance
from or addition to the provisions of these Terms and Conditions in any order or other written notification
will be of no effect.
Any notices required or permitted to be given hereunder shall be in writing and effective when received by
a party at the address as the receiving party has last notified to the other party by prior written notice. In
the case of Supplier such address, unless otherwise notified in writing, shall be as follows:
Service Flex-Time&Material Service Agreement Prepared by:AV]-SPL, Inc. I Page 9 of 14
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Supplier, Inc.
Attn: Executive Vice President
6301 Benjamin Road, Suite 101
Tampa, Florida 33634
If any provision of these Terms and Conditions shall be held to be invalid, illegal, or unenforceable, the
remaining terms of these Terms and Conditions shall in no way be affected or impaired. The waiver by
either party of a breach of any provision of these Terms and Conditions shall not be construed as a waiver
of any subsequent breach.
You may not assign any or all of your rights or obligations under these Terms and Conditions including by
purchase, merger or operation of law, without the prior written consent of Supplier, which consent shall not
be unreasonably withheld. Any attempted assignment or transfer in violation of this provision shall be null
and void. Supplier may assign its rights and obligations under these Terms and Conditions without prior
written consent or notice.
In performing the Services, Supplier shall be acting as an independent sub-contractor and neither Supplier
nor its personnel or representatives shall be deemed to be your agents or employees. Customer may not
assign nor transfer its rights, under the Term and Conditions or a Service Program, by operation of law or
otherwise, without the prior written consent of Supplier. Supplier's affiliates may participate in Supplier's
performance under these Terms and Conditions and a Service Program, and Supplier may also sub-
contract its obligations under, these Terms and Conditions and a Service Program provided that Supplier
remains liable for the performance of its affiliates and/or sub-contractors in respect thereof.
Same as expressly provided, no term or provision of these Terms and Conditions or a Service Program
shall be enforceable by a third party(being any person other than the parties and their permitted successors
and assignees).
The Customer acknowledges that Supplier has trained personnel who perform Services and has made an
investment in such personnel. Therefore, at no time during the term of a Service Program or for one (1)
year thereafter, will the Customer directly or indirectly either offer employment to or hire any Supplier
employees who perform Services on behalf of Supplier without Supplier's express prior written consent.
In performing the Services, Supplier shall be deemed to be an independent contractor and its personnel
and representatives shall not act as nor be Customer's agents or employees. Supplier shall have complete
charge and responsibility for personnel employed or engaged by Supplier.
Upon any expiration or termination of these Terms and Conditions, Sections 13 (Intellectual Property) and
14 (Warranty/Limitation of Liability) shall survive.
These Terms and Conditions may have been translated into various languages for the convenience of
Supplier's Customers. While the translation is correct to the best of Supplier's knowledge, Supplier is not
responsible or liable in the event of an inaccuracy. English is the controlling language of these Terms and
Conditions, and any translation has been prepared for you as a courtesy only. In the event of a conflict
between the English-language version of these Terms and Conditions and a version that has been
translated into another language,the English-language version of these Terms and Conditions shall control.
These Terms and Conditions and any contract for a Service Program shall be governed by the laws of the
State of Texas, and any disputes will be subject to the exclusive jurisdiction of the state courts located in
Tarrant County, Texas or in the United States District Court for the Northern District of Texas, Fort Worth
Division. The U.N. Convention on Contracts for the International Sale of Goods does not apply.
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UNLESS OTHERWISE EXPRESSLY AGREED IN A SIGNED WRITING BY THE PARTIES IN
ACCORDANCE HEREWITH, THESE TERMS AND CONDITIONS, TOGETHER WITH ANY APPLICABLE
SERVICE PROGRAM,ARE THE COMPLETE AND EXCLUSIVE STATEMENT OF THE AGREEMENT OF
TERMS AND CONDITIONS BETWEEN THE PARTIES, SUPERSEDING ALL PROPOSALS OR PRIOR
TERMS AND CONDITIONS, AGREEMENTS OR COMMUNICATIONS, ORAL DR WRITTEN, BETWEEN
THE PARTIES RELATING TO THE SUBJECT MATTER HEREOF.
| HEREBY ACKNOWLEDGE THAT| HAVE READ, UNDERSTAND AND AGREE TO ALL OFTHE
DESCRIPTION OF SERVICES, STATEMENT OF COVERAGE, INCLUDING THE TERMS AND
CONDITIONS CONTAINED IN THE SUPPLIER SERVICE TERMS AND CONDITIONS AND ACCEPT,
UNDERSTAND AND AGREE TO THE CHARGES FOR SUCH SERVICE LISTED OR REFERENCED IN
ATTACHMENT A. I ALSO ACKNOWLEDGE THAT |AK8 AUTHORIZED BY THE CUSTOMER T]
ORDER THE SERVICE AS LISTED WITHIN THIS AGREEMENT.
Print Name: Au anis
Title: Assistant City Manager
Company: City of Fort Worth
Supplier
Signature
Print Name: Christiah9'
Title: Sh Account Manager
Company: Audio Visual Innovations, Inc.
Date: 11130/2015
FO
ISUL--�`
=' llison' to the,City
OFFICIAL RECORD
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ATTACHMENT A: Time and Materials Rate Schedule
Contract Customer Rate Schedule
Service Hourly Rate
Time &Material—Standard Business Hours $120
Time& Material—Weekend $180
Time& Material—AVI-SPL Holiday $240
® 2 hour minimum billing for onsite service
® 1 hour minimum billing for phone support
■ Standard Business Hours: Monday through Friday 8:00 am to 5:00 local time
® Contract rates apply with any active Customer Care or T&M Note to Exceed/Service Flex
agreement. Non contracted rates will apply on non-renewal of contract
■ Travel: Hourly rates apply portal to portal (excludes airfare)
p Rates are valid in the continental US only
Non-contract Customer Rate Schedule
Service Hourly Rate
Time& Material—Standard Business Hours $140
Time& Material—Weekend $210
Time& Material—AVI-SPL Holida $280
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26. ATTACHMENT E: Service Flex Service Options &Covered Equipment
ServiceFlex Program Options:
• Term: Nov 23,2015—Nov 23,2016
• Contract Amount: Not to Exceed$10,000
• Contract Type: ❑ Pre-Paid ® Pre-Authorized Amount
Location Room/Site Name Covered Equipment Description
City of Fort Worth, Council Chambers, ProAV equipment associated with Job Orders:2001-14-
City Hall pre-Council Chambers, 46495;2001-12-26193;2001-09-08659
Fort Worth,TX Broadcast Control
Rooms A and B
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