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HomeMy WebLinkAboutContract 45693-AD2 R ' CITY RSECRETARYT . � �� „�2 R COAt'�RACT IN10a0. ADDENDUM TO CUSTOMER CARE PROGRAM AGREEMENT BETWEEN AV[-SPL AND CITY OF FORT WORTH This Addendum is executed by and between Audio Visual Innovations, Inc., ("AVI-SPL")and the City of Fort Worth, Texas ("Customer" or"City"). City and AVI-SPL are each individually referred to herein as a"party" and collectively referred to as the"parties"The parties agree that these terms and conditions are incorporated into the Customer Care Program Agreement("Agreement")as if copied in full. If there are any conflicts between the terms and conditions of this Addendum and the Agreement, the terms and conditions contained in this Addendum shall control. 1. Termination. 1.1. Convenience.City may terminate this Agreement at any time and for any reason by providing AVI-SPL with 30 days written notice of termination. 1.2 Fiscal Funding Out. In the event no funds or insufficient funds are appropriated by the City in any fiscal period for any payments due hereunder, the City will notify AVI-SPL of such occurrence and this Agreement shall terminate on the last day of the fiscal period for which appropriations were received without penalty or expense to the City of any kind whatsoever,except as to the portions of the payments herein agreed upon for which funds have been appropriated. 2. Disclosure of Conflicts. AVI-SPL hereby warrants to the City that AVI-SPL has made full disclosure in writing of any existing or potential conflicts of interest related to AVI-SPL's services under this Agreement. In the event that any conflicts of interest arise after the Effective Date of this Agreement,AVI-SPL hereby agrees immediately to make full disclosure to the City in writing. 3. Right to Audit. AVI-SPL agrees that the City shall, until the expiration of three (3) years after final payment under this Agreement, have access to and the right to examine at reasonable times any directly pertinent books, documents, papers and records of the AVI-SPL involving transactions relating to this Agreement at no additional cost to the City. AVI-SPL agrees that the City shall have access during normal working hours to all necessary AVI-SPL facilities and shall be provided adequate and appropriate work space in order to conduct audits in compliance with the provisions of this section. The City shall give AVI-SPL not less than ten(10)days written notice of any intended audits. AVI-SPL further agrees to include in all its subcontractor agreements hereunder a provision to the effect that the subcontractor agrees that the City shall, until expiration of three (3) years after final payment of the subcontract, have access to and the right to examine at reasonable times any directly pertinent books, documents, papers and records of such subcontractor involving transactions related to the subcontract,and further that City shall have access during normal working hours to all subcontractor facilities and shall be provided adequate and appropriate work space in order to conduct audits in compliance with the provisions of this paragraph. City shall give subcontractor not less than ten(10)days written notice of any intended audits. 4. Independent Contractor. It is expressly understood and agreed that AVI-SPL shall operate as an independent contractor as to all rights and privileges granted herein, and not as agent, representative or employee of the City. Subject to and in accordance with the conditions and provisions of this Agreement,AVI-SPL shall have the exclusive right to control the details of its operations and activities and be solely responsible for the acts and omissions of its officers,agents, servants, employees, contractors and subcontractors. AVI-SPL acknowledges that the doctrine of respondeat superior shall not apply as between the City,its officers,agents,servants and employees,and AVI-SPL,its officers, agents, employees, servants, contractors and subcontractors. AVI-SPL further agrees that nothing herein shall be construed as the creation of a partnership or joint enterprise between City and AVI-SPL. OFFICIAL RECORD Addendum to Customer Care Program Agreement Between AVI-SPL and CFW CIRAEGRETARY FT. WORTH, TX that the City shall in no way be considered a Co-employer or a Joint employer of AVI-SPL or any officers, agents, servants,employees or subcontractors of AVI-SPL.Neither AVI-SPL,nor any officers,agents,servants,employees or subcontractors of AVI-SPL shall be entitled to any employment benefits from the City. AVI-SPL shall be responsible and liable for any and all payment and reporting of taxes on behalf of itself, and any of its officers, agents,servants,employees or subcontractors. S. LIABILITY AND INDEMNIFICATION. A. LIABILITY - AVI-SPL SHALL BE LIABLE AND RESPONSIBLE FOR ANY AND ALL PROPERTY LOSS, PROPERTY DAMAGE AND/OR PERSONAL INJURY, INCLUDING DEATH,TO ANY AND ALL PERSONS, OF ANY KIND OR CHARACTER, WHETHER REAL OR ASSERTED, TO THE EXTENT CAUSED BY THE NEGLIGENT ACT(S) OR OMISSION(S), MALFEASANCE OR INTENTIONAL MISCONDUCT OF CONSULTANT, ITS OFFICERS,AGENTS,SERVANTS OR EMPLOYEES. B. INDEMNIFICATION - AVI-SPL HEREBY COVENANTS AND AGREES TO INDEMNIFY, HOLD HARMLESS AND DEFEND THE CITY, ITS OFFICERS, AGENTS, SERVANTS AND EMPLOYEES, FROM AND AGAINST ANY AND ALL CLAIMS OR LAWSUITS OF ANY KIND OR CHARACTER, WHETHER REAL OR ASSERTED, FOR EITHER PROPERTY DAMAGE OR LOSS (INCLUDING ALLEGED DAMAGE OR LOSS TO AVI-SPL'S BUSINESS, AND ANY RESULTING LOST PROFITS) PERSONAL INJURY, INCLUDING DEATH, TO ANY AND ALL PERSONS, AND DAMAGES FOR CLAIMS OF INTELLECTUAL PROPERTY INFRINGEMENT, ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT, TO THE EXTENT CAUSED BY THE ACTS OR OMISSIONS OF AVI-SPL, ITS OFFICERS, AGENTS, SUBCONTRACTORS, SERVANTS OR EMPLOYEES. C. INTELLECTUAL PROPERTY INFRINGEMENT —(i) AVI-SPL warrants that all Deliverables, or any part thereof, furnished hereunder, including but not limited to: programs,documentation,software,analyses, applications, methods,ways,and processes(in this Section SC each individually referred to as a "Deliverable" and collectively as the "Deliverables,") do not infringe upon or violate any patent, copyrights, trademarks, service marks, trade secrets, or any intellectual property rights or other third party proprietary rights, in the performance of services under this Agreement. (ii) AVI-SPL shall be liable and responsible for any and all claims made against the City for infringement of any patent,copyright,trademark,service mark,trade secret,or other intellectual property rights by the use of or supplying of any Deliverable(s)in the course of performance or completion of,or in any way connected with providing the services,or the City's continued use of the Deliverable(s) hereunder. (iii)AVI-SPL agrees to indemnify,defend,settle,or pay,at its own cost and expense, including the payment of attorney's fees, any claim or action against the City for infringement of any patent, copyright, trade mark, service marls,trade secret,or other intellectual property right arising from City's use of the Deliverable(s),or any part thereof, in accordance with this Agreement, it being understood that this agreement to indemnify, defend,settle or pay shall not apply if the City modifies or misuses the Deliverable(s). So long as AVI-SPL bears the cost and expense of payment for claims or actions against the City pursuant to this section S,AV]-SPL shall have the right to conduct the defense of any such claim or action and all negotiations for its settlement or compromise and to settle or compromise any such claim; however,City shall have the right to fully participate in any and all such settlement, negotiations, or lawsuit as necessary to protect the City's interest, and City agrees to cooperate with AVI-SPL in doing so. In the event City, for whatever reason, assumes the responsibility for payment of costs and expenses for any claim or action brought against the City for infringement arising under this Agreement,the City shall have the sole right to conduct the defense of any such claim or action and all negotiations for its settlement or compromise and to settle or compromise any such claim; however,AVI-SPL shall fully participate and cooperate with the City in defense of such claim or action. City agrees to give AVI-SPL timely written notice of any such claim or action,with copies of all papers City may receive relating thereto. Notwithstanding the foregoing, the City's assumption of payment of costs or expenses shall not eliminate AVI-SPL's duty to indemnify the City under this Agreement. If the Deliverable(s), or any part thereof, is held to infringe and the use thereof is enjoined or restrained or, if as a result of a settlement or compromise, such use is materially adversely restricted, AVI-SPL shall, at its own expense and as City's sole Addendum to Customer Care Program Agreement Between AVI-SPL and CM, Page 2 of 7 remedy, either: (a) procure for City the right to continue to use the Deliverable(s); or (b) modify the Deliverable(s) to make them/it non-infringing, provided that such modification does not materially adversely affect City's authorized use of the Deliverable(s); or (c) replace the Deliverable(s) with equally suitable, compatible,and functionally equivalent non-infringing Deliverable(s)at no additional charge to City; or(d) if none of the foregoing alternatives is reasonably available to AVI-SPL, terminate this Agreement, and refund all amounts paid to AVI-SPL by the City,subsequent to which termination City may seek any and all remedies available to City under law. AVI-SPL'S OBLIGATIONS HEREUNDER SHALL BE SECURED BY THE REQUISITE INSURANCE COVERAGE AND AMOUNTS SET FORTH IN SECTION 6 OF THIS ADDENDUM. 6. INSURANCE. 6.1 The AVI-SPL shall carry the following insurance coverage with a company that is licensed to do business in Texas or otherwise approved by the City: L Commercial General Liability a. Combined limit of not less than $2,000,000 per occurrence;$41nillion aggregate or b. Combined limit of not less than $1,000,000 per occurrence;$2,000,000 aggregate and Umbrella Coverage in the amount of $4,000,000. Umbrella policy shall contain a follow-form provision and shall include coverage for personal and advertising injury. c. Defense costs shall be outside the limits of liability. 2. Automobile Liability Insurance covering any vehicle used in providing services under this Agreement, including owned, non-owned, or hired vehicles, with a combined limit of not less than $1,000,000 per occurrence. 3. Professional Liability(Errors&Omissions)in the amount of$1,000,000 per claim and$1,000,000 aggregate Iimit. 4. Statutory Workers' Compensation and Employers' Liability Insurance requirements per the amount required by statute. 5. Technology Liability (Errors&Omissions) a. Combined limit of not less than $2,000,000 per occurrence;$4million aggregate or b. Combined limit of not less than$1,000,000 per occurrence;$2,000,000 aggregate and Umbrella Coverage in the amount of $4,000,000. Umbrella policy shall contain a follow-form provision and shall include coverage for personal and advertising injury. The umbrella policy shall cover amounts for any claims not covered by the primary Technology Liability policy. Defense costs shall be outside the limits of liability. (a) Coverage shall include, but not be limited to, the following: (i) Failure to prevent unauthorized access (ii) Unauthorized disclosure of information (iii) Implantation of malicious code or computer virus (iv)Fraud, Dishonest or Intentional Acts with final adjudication language (v) Intellectual Property Infringement coverage, specifically including coverage for intellectual property infringement claims and for indemnification and legal defense of any claims of intellectual property infringement, including infringement of patent, copyright, trade mark or trade secret, brought against the City for use of Deliverables, Software or Services provided by AVI-SPL under this Agreement. Technology coverage may be provided through an endorsement to the Commercial General Liability(CGL) policy, a separate policy specific to Technology E&O, or an umbrella policy that picks up coverage after primary coverage is exhausted. Either is acceptable if coverage meets all other requirements. Technology coverage shall be written to indicate that legal costs and fees are considered outside of the policy limits and shall not erode limits of liability. Any deductible will be the sole responsibility of the Consultant and may not exceed $50,000 without the written approval of the City. Coverage shall be claims-made, with a retroactive or prior acts date that is on or before the effective date of this Agreement. Coverage shall be Addendum to Customer Care Program Agreement Between AVI-SPL and CFW Page 3 of 7 3 maintained for the duration of the contractual agreement and for two (2) years following completion of services provided. An annual certificate of insurance, or a full copy of the policy if requested, shall be submitted to the City to evidence coverage. 6. Any other insurance as reasonably requested by City. 6.2 General Insurance Requirements: 1. All applicable policies shall name the City as an additional insured thereon, as its interests may appear. The term City shall include its employees, officers, officials, agents, and volunteers in respect to the contracted services. 2. The workers'compensation policy shall include a Waiver of Subrogation(Right of Recovery)in favor of the City of Fort Worth. 3. A minimum of Thirty (30) days' notice of cancellation or reduction in limits of coverage shall be provided to the City. Ten (10)days' notice shall be acceptable in the event of non-payment of premium. Notice shall be sent to the Risk Manager,City of Fort Worth, 1000 Throckmorton, Fort Worth,Texas 76102,with copies to the City Attorney at the same address. 4. The insurers for all policies must be licensed and/or approved to do business in the State of Texas. All insurers must have a minimum rating of A- VII in the current A.M. Best Key Rating Guide, or have reasonably equivalent financial strength and solvency to the satisfaction of Risk Management. If the rating is below that required, written approval of Risk Management is required. S. Any failure on the part of the City to request required insurance documentation shall not constitute a waiver of the insurance requirement. 6. Certificates of Insurance evidencing that AVI-SPL has obtained all required insurance shall be delivered to and approved by the City's Risk Management Division prior to execution of this Agreement. 7. Assignment and Subcontracting. AVI-SPL shall not assign or subcontract any of its duties,obligations or rights under this Agreement without the prior written consent of the City. If the City grants consent to an assignment,the assignee shall execute a written agreement with the City and the AVI-SPL under which the assignee agrees to be bound by the duties and obligations of AVI-SPL under this Agreement. The AVI-SPL and Assignee shall be jointly liable for all obligations under this Agreement prior to the assignment. If the City grants consent to a subcontract, the subcontractor shall execute a written agreement with AVI-SPL referencing this Agreement under which the subcontractor shall agree to be bound by the duties and obligations of AVI-SPL under this Agreement as such duties and obligations may apply.AVI-SPL shall provide the City with a fully executed copy of any such subcontract. 8. Compliance with Laws,Ordinances,Rules and Regulations. AVI-SPL agrees to comply with all applicable federal, state and local laws, ordinances, rules and regulations. If the City notifies AV]-SPL of any violation of such laws, ordinances, rules or regulations, AVI-SPL shall immediately desist from and correct the violation. 9. Non-Discrimination Covenant. AVI-SPL,for itself, its personal representatives,assigns,subcontractors and successors in interest,as part of the consideration herein, agrees that in the performance of AVI-SPL's duties and obligations hereunder, it shall not discriminate in the treatment or employment of any individual or group of individuals on any basis prohibited by law. If any claim arises from an alleged violation of this non-discrimination covenant by AVI-SPL, its personal representatives, assigns, subcontractors or successors in interest, AVI-SPL agrees to assume such liability and to indemnify and defend the City and hold the City harmless from such claim. 10. Notices. Notices required pursuant to the provisions of this Agreement shall be conclusively determined to have been delivered when (1) hand-delivered to the other party, its agents, employees, servants or representatives, (2) delivered by facsimile with electronic confirtuation of the transmission,or(3)received by the other party by United States Mail, registered, return receipt requested, addressed as follows: Addendum to Customer Care Program Agreement Between AVI-SPL and CFNNI Page 4 of 7 TO THE CITY: City of Fort Worth With Copy to the City Attorney Attn: Valerie Washington at same address 1000 Throckmorton Fort Worth TX 76102 Facsimile: (817)392-6134 TO CONSULTANT: Name: Audio Visual Innovation, Inc. Attn: Brian Miller or Steve Benjamin or Angela Schwarz, 888-619-9083 Address: 6301 Benjamin Rd City, State,Zip Tampa,FL, 33634 Facsimile: 301-865-1381 11. Governmental Powers. It is understood and agreed that by execution of this Agreement,the City does not waive or surrender any of its governmental powers. 12. No Waiver. The failure of the City or AVI-SPL to insist upon the performance of any term or provision ofthis Agreement or to exercise any right granted herein shall not constitute a waiver of the City's or AVI-SPL's respective right to insist upon appropriate performance or to assert any such right on any future occasion. 13. Governinlz Law and Venue. This Agreement shall be construed in accordance with the laws of the State of Texas. If any action, whether real or asserted, at law or in equity, is brought on the basis of this Agreement, venue for such action shall lie in state courts located in Tarrant County, Texas or the United States District Court for the Northern District of Texas, Fort Worth Division. 14. Severability. If any provision of this Agreement is held to be invalid, illegal or unenforceable, the validity, legality and enforceability of the remaining provisions shall not in any way be affected or impaired. 15. Force Maieure. The City and AVI-SPL shall exercise their best efforts to meet their respective duties and obligations as set forth in this Agreement, but shall not be held liable for any delay or omission in performance due to force majeure or other causes beyond their reasonable control (force majeure), including, but not limited to, compliance with any government law, ordinance or regulation, acts of God, acts of the public enemy, fires, strikes, lockouts, natural disasters, wars, riots, material or labor restrictions by any governmental authority, transportation problems and/or any other similar causes. 16. Headinfas Not Controlling. Headings and titles used in this Agreement are for reference purposes only and shall not be deemed a part of this Agreement. 17. Review of Counsel. Addendum to Customer Care Program Agreement Between AVI-SPL and CFW Page 5 of 7 • e The parties acknowledge that each party and its counsel have reviewed this Agreement and that the normal rules of construction to the effect that any ambiguities are to be resolved against the drafting party shall not be employed in the interpretation of this Agreement or exhibits hereto. 18. Amendments. No amendment of this Agreement shall be binding upon a party hereto unless Such amendment is set forth in a written instrument,and duly executed by an authorized representative of each party. 19. Entirety of Agreement. The Agreement and this Addendum contain the entire understanding and agreement between the City and AVI-SPL,their assigns and successors in interest,as to the matters contained herein. Any prior or contemporaneous oral or written agreement is hereby declared null and void to the extent in conflict with any provision of this Agreement. 20. Counterparts. The Agreement and this Addendum may be executed in one or more counterparts and each counterpart shall, for all purposes,be deemed an original,but all such counterparts shall together constitute one and the same instrument. An executed Agreement, modification, amendment, or separate signature page shall constitute a duplicate if it is transmitted through electronic means, such as fax or e-mail, and reflects the signing of the document by any party. Duplicates are valid and binding even if an original paper document bearing each party's original signature is not delivered. 21. Warranty of Services. AVI-SPL warrants that its services will be of a professional quality and conform to generally prevailing industry standards. City must give written notice of any breach of this warranty within thirty(30)days from the date that the services are completed. In such event, at AVI-SPL's option, AVI-SPL shall either (a) use commercially reasonable efforts to re-perform the services in a manner that conforms with the warranty, or(b) refund the fees paid by the City to AVI-SPL for the nonconforming services. 22. Signature Authority. The person signing the Agreement and this Addendum hereby warrants that he/she has the legal authority to execute the Agreement and this Addendum on behalf of the respective party,and that such binding authority has been granted by proper order, resolution, ordinance or other authorization of the entity. Each party is fully entitled to rely on these warranties and representations in entering into the Agreement or any amendment hereto. Executed in multiples this the JA day of k,2 0 AGREED: AGREED: CITY OK FORT WORTH: AUDIO VISUA4,, INNOVATIONS,-LNC.: By: ----— By: Valerie Washington Assistant City Manager EVP Date: Date: e3 I oto 1 ATTEST: Addendum to Customer Care Program Agreement Between AVI-SPI.and(:FN' Page 6 of 7 41 By: © ' Mary Kays V 0 ° © City Secretary �o�.4,o � "eoo APPROVE S TO F AND LEGALITY: By: Assistantrty ttorney CONTRACT AUTHORIZATION: M&C: N/A /v Date Approved: N/A ✓✓✓ OFFlC1A`�ETARY CITY SECRE Fev wO H'TX Addendum to Customer Care Program Agreement Between ANTI-SPL and Caw Page 7 of 7 TM S P 1 Customer Care Program F IkL is A, City Fort Worth Texas JEOC Service Agreement Juan Ortiz $ 29,400.64 ( 1 Year) Start Date May 23, 2016 End Date May 22, 2017 tepared By: Brian Miiier, CTS CoVt/ DOD Sales Control Room Group (a division of AVI-SPL n i I. COVERAGE Audio Visual Innovations, Inc., (AVI-SPL) will repair or arrange for the repair of THE COMPANY'S Warranted Covered Equipment as necessary when such repair is due to a MECHANICAL or ELECTRONIC BREAKDOWN during the Agreement Period, subject to the conditions contained herein. AVI-SPL's continued adherence to this agreement is subject to the satisfaction of all terms and conditions of this Agreement by the Customer. All repairs and replacements will be performed with new or remanufactured parts and components as decided by AVI-SPL. All parts or components replaced by AVI-SPL shall become the property of AVI-SPL. (Covered Equipment is listed in detail in Appendix A of this Agreement.) II. WHAT IS COVERED A. Scheduled Preventive Maintenance(PM): AVI shall provide two(2)routine preventive maintenance visits,scheduled during the Covered Period of this Agreement. During each scheduled Preventive Maintenance (PM) visit AVI authorized technician(s)shall perform the following services as they relate to the COVERED EQUIPMENT outlined below. • AVI-SPL • Complete operational check of the system functions including Mitsubishi Hardware • Replace client furnished projector lamp, reset counter, clean filters, and align • Detailed inspection and testing of selected system components • Adjustment of levels and equalization of equipment settings as required to maintain or optimize overall system performance • Professional cleaning of record/playback heads,screens, projector lenses and other critical surfaces, as needed • Mechanical and electrical adjustment of video projectors as needed • Inspect and repair any faulty wiring or connections • Service reports • Recommendations for any additional services and upgrades * If abnormal operating conditions outside industry standards are noted during a Preventive Maintenance call and the repair or correction cannot be accomplished during the PM call,another repair call will be scheduled to correct the noted condition. In addition, if the repair is not covered by this AGREEMENT as noted in Article IV, AVI-SPL will forward a written quote for repair to the customer,which will include a description of the condition and a cost to repair. B. Helpdesk: AVI-SPL's 24x7 Helpdesk is included with all AVI-SPL Customer Care programs.This service includes unlimited toll- free phone,e-mail,as well as advance parts replacement,real-time trouble ticket tracking and reporting,detailed statements of work, global support in the event of international installations, and service level customization, which can include Time and Materials calls and contracts for onsite work.AVI-SPL will: • Provide first call pickup within 60 seconds,90%of time • Log all trouble tickets into tracking system • Perform diagnostics and analysis remotely if applicable(Telnet,VPN, Extranet, etc.) • Schedule repairs and/or temp solutions • Dispatch technicians as needed C. Parts Repair/Replacement: All parts required for repair of COVERED EQUIPMENT shall be repaired or replaced at AVISPL's discretion discounted 15% off list price unless CUSTOMER elects to accept optional extended warranty on equipment. If option for an extended warranty is part of the agreement,AVI-SPL will repair any equipment covered under the agreement. D. Labor for Repair: Telephone support and all on-site labor for repair of COVERED EQUIPMENT shall be free of charge, except as excluded by Article IV of this AGREEMENT. All in-shop labor for repair of COVERED EQUIPMENT shall be discounted 10% off published rates except as excluded by Article IV of this AGREEMENT. On-site service hours for this AGREEMENT are from 8:00 a.m. to 5:00 p.m. Monday through Friday, excluding holidays. Telephone support is provided from 24/7/365. Work must begin and end within these on-site service hours or telephone support hours, based on the service being provided. t Work, which is performed outside these hours, is billable at$180.00 per hour of actual work done on Customer's premises, Monday through Friday (excluding holidays) and $240.00 per hour of actual work done on Customer's premises Saturday, Sunday and holidays. By entering into this AGREEMENT the CUSTOMER agrees to allow AVI-SPL to bill for on-site service provided outside on-site service hours at the corresponding rates as shown in this section. AVI-SPL will invoice the Customer for any on-site work performed outside on-site service hours and any such invoice will be due net thirty(30)from receipt of invoice. Any invoices not paid when due shall be considered a breach of this AGREEMENT. E. Response Time: AVI-SPL agrees to have a technician on the CUSTOMER'S site within 48 hours of a request for service, if such time frame is requested by the CUSTOMER and within the terms and conditions of this AGREEMENT. AVI-SPL agrees to respond to the CUSTOMER'S request for service by telephone within two(2) hours of receipt of the request for service. F. Failure of a Covered Component. The CUSTOMER must give AVI-SPL access to all COVERED EQUIPMENT at a time within the 48 hours following equipment failure that is mutually agreeable to both the CUSTOMER and AVI-SPL and is during OUR on-site service hours. If such a time cannot be mutually agreed upon,AVI-SPL will schedule a service call to the CUSTOMER'S EQUIPMENT LOCATION at the first available time beyond the 48 hour period during the on-site service hours. G. Transportation of Parts and Equipment: AVI-SPL will pay for transportation of COVERED EQUIPMENT from the EQUIPMENT LOCATION to OUR shop for repair. AVI-SPL will pay transportation costs of equipment from the EQUIPMENT LOCATION or OUR shop to the manufacturer, if manufacturer repair is required. AVI-SPL will pay for transportation of parts and components ordered in connection with servicing of the COVERED EQUIPMENT. Transportation will be provided by OUR staff or by commercial carrier. If shipped by commercial carrier, it will be shipped for two-day delivery. Expedited delivery is also available,upon request. If the CUSTOMER wishes to have the parts expedited,the CUSTOMER agrees to be billed for the cost difference between the two-day delivery and the expedited delivery. H. Confidentiality: AVI-SPL acknowledges that during the term of this AGREEMENT, and in the course of performing services for the CUSTOMER, AVI-SPL may have access to the CUSTOMER'S confidential and proprietary information ("Confidential Information"). AVI-SPL agrees to strictly maintain the confidentiality of such Confidential Information and will only disclose such information to OUR service personnel to the extent that such Confidential Information is necessary in the performance of services under this AGREEMENT. AVI-SPL shall ensure that all service personnel strictly adhere to the obligation of nondisclosure detailed herein. It is further agreed that neither party shall use the other party's name, trademarks, service marks, logos,trade names and/or branding without such other party's written consent. 3 Ill. THE CUSTOMER'S OBLIGATIONS DURING THE AGREEMENT PERIOD A. Equipment Maintenance and Alteration: The CUSTOMER must provide AVI-SPL with reasonable access to the COVERED EQUIPMENT for scheduled Preventive Maintenance visits only as necessary for the performance of services under this contract. The CUSTOMER may not alter, repair or modify the COVERED EQUIPMENT or wiring interconnections except as expressly directed by AVI-SPL service personnel. The CUSTOMER must operate the equipment as detailed in the user operations manual provided by the manufacturer with the COVERED EQUIPMENT. The CUSTOMER may not add equipment, components, wiring or other parts to the COVERED EQUIPMENT without written notification to and acceptance by AVI-SPL. Repairs to the covered equipment/systems that have been altered or modified without written notification to AVI-SPL,shall be billed at OUR standard published rate. IV. WHAT IS NOT COVERED A. Consumables{lamps,filters, etc...} B. Failure due to or caused by fire, failure as a result of utility services, failure as a result of poor, unconditioned or fluctuating electrical power,or natural and environmental causes such as earthquake,tornado, lightning,corrosion,flood, or other acts of God, or other causes beyond AVI-SPL'S reasonable control. Failures or faults caused by structural, mechanical, electrical, or plumbing systems or devices not installed by AVI-SPL and not specifically covered under this AGREEMENT. C. Failure caused by abuse, misuse, or negligence. D. Any consequential or indirect damages incurred or suffered by the CUSTOMER,or for economic loss,including,but not limited to inconvenience, loss of profits, loss of business revenue, loss of time, loss of equipment use, or any other economic loss of any kind whatsoever, even if AVI-SPL has been advised of the possibility thereof. E. Service required diagnosing the CUSTOMER'S complaint,failure or perceived failure if no mechanical or electrical failure was found,or improper operation of COVERED EQUIPMENT. F. Damaged displays caused by image"burn-in". V. COMMENCEMENT, EXPIRATION, RENEWAL AND CANCELLATION OF AGREEMENT A. On or before thirty(30)days following the start date of the AGREEMENT: 1. The CUSTOMER may cancel this AGREEMENT and receive refund of the full premium if no benefits have been received or if no service calls or telephone support have been provided to the CUSTOMER by AVI-SPL. 2. If benefits have been received or if service calls or telephone support has been provided by AVI-SPL,the CUSTOMER may cancel this AGREEMENT for a refund less the cost of the service performed, based on AVI-SPL'S published rate schedule or 1/12 the cost of the maintenance plan,whichever is greater. B. If the COVERED EQUIPMENT is not new and was not provided, installed or serviced by AVI-SPL, AVI-SPL reserves the right to inspect the equipment prior to the commencement of this AGREEMENT to determine if AVI-SPL wishes to provide the services covered in this AGREEMENT. If AVI-SPL determines that the equipment is not operating correctly, properly, or requires service to bring the equipment to good operating condition,AVI-SPL will provide an estimate to the CUSTOMER regarding the cost of such service. This service is not considered part of this AGREEMENT. If the CUSTOMER declines to have AVI-SPL perform the work required to bring the COVERED EQUIPMENT up to good operating condition,AVI- SPL will impose a maintenance inspection fee. C. AVI-SPL may cancel this AGREEMENT at any time for non-payment of the premium or if the CUSTOMER does not meet the CUSTOMER'S obligations under Article III. If the CUSTOMER does not meet obligations under Article III or does not pay the premium within thirty (30) days from receipt of AVI-SPL'S invoice, AVI-SPL has the right to cancel this AGREEMENT upon forwarding written notice of non-payment. In the event of cancellation due to non-payment,the CUSTOMER agrees to be liable for the full cost of services and parts provided to the CUSTOMER at the rates published in AVI-SPL'S most current rate schedule. In the event that the CUSTOMER does not meet the CUSTOMER'S obligations under Article III, AVI-SPL will provide a prorated refund based on the time expired on the AGREEMENT. D. The AGREEMENT shall commence upon the receipt of a purchase order or other acceptable payment guarantee, or on the date identified on the first page of this AGREEMENT,whichever is later. No AGREEMENT on the COVERED EQUIPMENT may be performed prior to the commencement of the AGREEMENT. E. The AGREEMENT shall expire on TBD per contract award date. Repair work on the COVERED EQUIPMENT, which was begun prior to the expiration of the AGREEMENT,shall be completed by AVI-SPL. E. This AGREEMENT shall not automatically renew. A new AGREEMENT must be written in order to provide coverage beyond the expiration date of this AGREEMENT. Either the CUSTOMER or AVI-SPL may decline to enter into a new agreement. H. Limitation of Liability-The foregoing warranties are exclusive and in lieu of all other warranties, whether written or oral, implied or statutory. In no event will the company be liable for any damages, other than the allocable charges paid by the buyer for the equipment,whether direct, indirect,special, incidental or consequential, arising from any warranty claims. VII Definitions: The words listed below have the following meanings in this AGREEMENT: COVERED Means the equipment for which ELECTRONIC OR Means the inability of a properly EQUIPMENT AVI-SPL will provide service, as MECHANICAL maintained and operated piece of listed on the first page of this FAILURE AND COVERED EQUIPMENT to perform AGREEMENT. BREAKDOWN the function(s)for which it was designed, due solely to defects in material or faulty workmanship. Without limitation, Electronic or Mechanical Breakdown and Failure do not include damage due to negligence, caused by accident, or the gradual reduction in performance due to wear and tear. AGREEMENT Means this Service AGREEMENT AGREEMENT Means the period which begins on which specifies, among other PERIOD the date shown on page one of things, the CUSTOMER'S Coverage, this agreement, or the receipt by the AGREEMENT PERIOD, and the us of an acceptable payment Covered Equipment. guarantee and ends on the expiration of the time limitation as set forth in this AGREEMENT This AGREEMENT is not a manufacturer's warranty or an extension of a manufacturer's warranty. This Service AGREEMENT may provide duplicate coverage while manufacturer's warranties are in force. This AGREEMENT is not an express, implied or general warranty and is not a condition of the purchase of the COVERED EQUIPMENT. VIII. Special Provisions: Note–6th Year,some equipment is nearing End of Life( EOL) ,., The parties further agree to the terms and conditions outlined in the attached addendum, which is attached he=et` ae rc d herein to be made part of this Agreement. if there are any conflicts between the terms and conditions of th�i� alLfit'a1��� Addendum, the terms and conditions contained in the Addendum shall control IX. Price: $29,400.64 plus taxes if applicable 0 aj ii . a ser, City Secretary► Period of Performance Start: May 23,2016 End: May 22, 2017 Accepted for AVI-SPL by: Accepted for CFW by: n i Signature %, a2,r � "G,,/l_ , Signature J" 1 Print Name Brian Miller Print Name VAG(G 0ASj4JAP- Title Sales Title I fy, :�w C�kj Date August 26 2016 DateAVIA<***P- SPL TM Appendix A: Covered Equipment Company Name: City Fort Worth Texas EOC Contact Name: Juan Ortiz Contact Phone Number: TBD Contract Address: 1000 Throckmorton, Ft Worth TX Contact Email Address: Juan.Ortiz@fortworthgov.org Customer Number: TBD The following is a list of the major components covered under the terms and conditions of the Service Agreement attached herewith. AVI-SPL—CRG Project# 140I-10-31040 End of document