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HomeMy WebLinkAboutContract 44024 (2)mj11011 SECkiETARY COW CT ice PROFESSIONAL SERVICES AGREEMENT This PROFESSIONAL SERVICES AGREEMENT ("Agreement") is made and entered into by and between the CITY OF FORT WORTH (the "City' or "Customer"), a home rule municipal corporation situated in portions of Tarrant, Denton and Wise Counties, Texas, acting by and through Susan Alanis, its duly authorized Assistant City Manager, and SYMON COMMUNICATIONS, INC., (the "Consultant" or "Contractor" or "Symon"), a Delaware Corporation, and acting by and through William G. Cole, its duly authorized Chief Financial Officer, each individually referred to as a "party" and collectively referred to as the "parties." CONTRACT DOCUMENTS: The Contract documents shall include the following: 1. This Agreement for Professional Services 2. Exhibit A — Quote and Product Summary 3. Exhibit B — Software License Agreement 4. Exhibit C — Network Access Agreement 5. Exhibit D — Signature Verification Form 6. Exhibit E — Professional Services Policies All Exhibits attached hereto are incorporated herein and made a part of this Agreement for all purposes. In the event of any conflict between the documents, the terms and conditions of this Professional Services Agreement shall control. 1. SOFTWARE LICENSE AND SCOPE OF SERVICES. 1.1 Services Consultant hereby agrees to provide the City with software, hardware, maintenance and support, and professional services for the purpose of upgrading the electronic messaging system for the Fort Worth Convention Center and Will Rogers Memorial Coliseum. Attached hereto and incorporated for all purposes incident to this Agreement is Exhibit "A," Quote and Product Summary, more specifically describing the services to be provided hereunder. Symon's Professional Services Policies attached hereto as Exhibit E shall also apply to the Services provided herein. 1.2 License to use the software Consultant agrees to provide the City with the MessageLink Software (the "Software") for the purposes of upgrading the electronic messaging system for the Fort Worth Convention Center and Will Rogers Memorial Coliseum. This software is "proprietary" to Consultant, and is licensed and provided to the City for its sole use for purposes under this Agreement. Consultant hereby grants the City the right to use the Software pursuant to and in accordance with the terms and conditions set forth in the attached Exhibit "B," Software License Agreement. 2. TERM. This Agreement shall commence upon the date that both the City and Consultant have executed this Agreement ("Effective Date") and shall continue in full force and effect for one year from the Effective Date ("Initial Term"), unless terminated earlier in accordance with the provisions of this Agreement. Following the Initial Term, thi-s_Agreernent shall be renewable at the option of the City for three (3) IT Professional SeRic 11R1gri0e; *}fl 4j1' N Symon Communications --Inc. nee WORT, T 1 01`07-13 P,� �14.32 IN Revised June 2012 additional terms of one year each (each a "Renewal Term' ). The City shall provide Consultant with written notice of its intent to renew at least thirty (30) days prior to the end of each term. 3. COMPENSATION. The City shall pay Consultant an amount not to exceed $21,931.73 in accordance with the provisions of this Agreement and the Quote and Product Summary attached as Exhibit "A." Consultant shall not perform any additional services for the City not specified by this Agreement unless the City requests and approves in writing the additional costs for such services. The City shall not be liable for any additional expenses of Consultant not specified by this Agreement unless the City first approves such expenses in writing. 4. TERMINATION. 4.1. Convenience. The City or Consultant may terminate this Agreement at any time and for any reason by providing the other party with 30 days' written notice of termination. 4.2 Non -appropriation of Funds. In the event no funds or insufficient funds are appropriated by the City in any fiscal period for any payments due hereunder, City will notify Consultant 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. 4.3 Breach. Subject to Section 29 herein, either party may terminate this Agreement for breach of duty, obligation or warranty upon exhaustion of all remedies set forth in Section 29. 4.4 Duties and Obliaations of the Parties. In the event that this Agreement is terminated prior to the Expiration Date, the City shall pay Consultant for services actually rendered up to the effective date of termination and Consultant shall continue to provide the City with services requested by the City and in accordance with this Agreement up to the effective date of termination. Upon termination of this Agreement for any reason, Consultant shall provide the City with copies of all completed or partially completed documents prepared under this Agreement. In the event Consultant has received access to City information or data as a requirement to perform services hereunder, Consultant shall return all City provided data to the City in a machine readable format or other format deemed acceptable to the City. 5. DISCLOSURE OF CONFLICTS AND CONFIDENTIAL INFORMATION. 5.1 Disclosure of Conflicts. Consultant hereby warrants to the City that Consultant has made full disclosure in writing of any existing or potential conflicts of interest related to Consultant's services under this Agreement. In the event that any conflicts of interest arise after the Effective Date of this Agreement, Consultant hereby agrees immediately to make full disclosure to the City in writing. 5.2 Confidential Information. Consultant, for itself and its officers, agents and employees, agrees that it shall treat all information provided to it by the City as confidential and shall not disclose any such information to a third party without the prior written approval of the City IT Professional Services Agreement Revised June 2012 Symon Communications, Inc. 2 5.3 Unauthorized Access. Consultant shall store and maintain City Information in a secure manner and shall not allow unauthorized users to access, modify, delete or otherwise corrupt City Information in any way. Consultant shall notify the City immediately if the security or integrity of any City information has been compromised or is believed to have been compromised, in which event, Consultant shall, in good faith, use all commercially reasonable efforts to cooperate with the City in identifying what information has been accessed by unauthorized means and shall fully cooperate with the City to protect such information from further unauthorized disclosure. 6. RIGHT TO AUDIT. Consultant agrees that the City shall until the expiration of three (3) years after final payment under this contract, or the final conclusion of any audit commenced during the said three years, have access to and the right to examine at reasonable times any directly pertinent books, documents, papers and records of the consultant involving transactions relating to this Contract at no additional cost to the City. Consultant agrees that the City shall have access during normal working hours to all necessary Consultant 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 Consultant reasonable advance notice of intended audits. Consultant 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, or the final conclusion of any audit commenced during the said three years 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 reasonable notice of intended audits. 7. INDEPENDENT CONTRACTOR. It is expressly understood and agreed that Consultant shall operate as an independent contractor as to all rights and privileges and work performed under this agreement and not as agent representative or employee of the City. Subject to and in accordance with the conditions and provisions of this Agreement, Consultant 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 Consultant acknowledges that the doctrine of respondeat superior shall not apply as between the City, its officers, agents, servants and employees, and Consultant its officers, agents employees, servants, contractors and subcontractors. Consultant further agrees that nothing herein shall be construed as the creation of a partnership or joint enterprise between City and Consultant. It is further understood that the City shall in no way be considered a Co -employer or a Joint employer of Consultant or any officers, agents, servants, employees or subcontractors of Consultant. Neither Consultant, nor any officers, agents, servants employees or subcontractors of Consultant shall be entitled to any employment benefits from the City. Consultant 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. 8. LIABILITY AND INDEMNIFICATION. A. LIABILITY - CONSULTANT SHALL BE LIABLE AND RESPONSIBLE FOR ANY AND ALL PROPERTY LOSS, PROPERTY DAMAGE ANDIOR 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. IT Professional Services Agreement Revised June 2012 Symon Communications, Inc. 3 B. INDEMNIFICATION - CONSULTANT 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 CONSULTANT'S BUSINESS AND ANY RESULTING LOST PROFITS) ANDIOR PERSONAL INJURY, INCLUDING DEATH, TO ANY AND ALL PERSONS, ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT, TO THE EXTENT CAUSED BY THE NEGLIGENT ACTS OR OMISSIONS OR MALFEASANCE OF CONSULTANT, ITS OFFICERS, AGENTS, SERVANTS OR EMPLOYEES. C. COPYRIGHT INFRINGEMENT — Copyright infringement shall be governed by the Software License Agreement attached hereto as Exhibit B. 9. ASSIGNMENT AND SUBCONTRACTING. Consultant 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 Consultant under which the assignee agrees to be bound by the duties and obligations of Consultant under this Agreement. The Consultant and Assignee shall be jointly liable for all obligations of the Consultant under this Agreement prior to the effective date of the assignment. If the City grants consent to a subcontract, the subcontractor shall execute a written agreement with the Consultant referencing this Agreement under which the subcontractor shall agree to be bound by the duties and obligations of the Consultant under this Agreement as such duties and obligations may apply. The Consultant shall provide the City with a fully executed copy of any such subcontract. 1 n. INSURANCE. Consultant shall provide the City with certificate(s) of insurance documenting policies of the following minimum coverage limits that are to be in effect prior to commencement of any work pursuant to this Agreement: 10.1 Coverage and Limits (a) Commercial General Liability $1,000,000 Each Occurrence $1,000,000 Aggregate (b) Automobile Liability $1,000,000 Each occurrence on a combined single limit basis Coverage shall be on any vehicle used by the Consultant, its employees, agents, representatives in the course of the providing services under this Agreement. "Any vehicle' shall be any vehicle owned, hired and non -owned (c) Worker's Compensation - Statutory limits Employer's liability $100,000 Each accident/occurrence $100,000 Disease - per each employee $500,000 Disease - policy limit This coverage may be written as follows: Workers' Compensation and Employers' Liability coverage with limits consistent with statutory IT Professional Services Agreement Revised June 2012 Symon Communications, Inc. 4 benefits outlined in the Texas workers' Compensation Act (Art. 8308 —1.01 et seq Tex. Rev. Civ. Stat) and minimum policy limits for Employers' Liability of $100,000 each accident/occurrence, $500 000 bodily injury disease policy limit and $100,000 per disease per employee (d) Technology Liability (E&O) $1,000,000 Each Claim Limit $1,000,000 Aggregate Limit 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 Technology coverage may be provided through an endorsement to the Commercial General Liability (CGL) policy, or a separate policy specific to Technology E&O Either is acceptable if coverage meets all other requirements. Any deductible will be the sole responsibility of the Prime Vendor 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 Contract. Coverage shall be maintained for the duration of the contractual agreement and for two (2) years following completion of services provided. An annual certificate of insurance shall be submitted to the City to evidence coverage. 10.2 General Requirements (a) The commercial general liability and automobile liability 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. (b) The workers' compensation policy shall include a Waiver of Subrogation (Right of Recovery) in favor of the City of Fort Worth. (c) 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. (d) 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. (e) Any failure on the part of the City to request required insurance documentation shall not constitute a waiver of the insurance requirement. (f) Certificates of Insurance evidencing that the Consultant has obtained all required insurance shall be delivered to the City prior to Consultant proceeding with any work pursuant to this Agreement. 11. COMPLIANCE WITH LAWS. ORDINANCES. RULES AND REGULATIONS. Consultant agrees that in the performance of its obligations hereunder, it will comply with all applicable federal, state and local laws, ordinances, rules and regulations and that any work it produces IT Professional Services Agreement Revised June 2012 Symon Communications, Inc. 5 in connection with this agreement will also comply with all applicable federal, state and local laws, ordinances rules and regulations. If the City notifies Consultant of any violation of such laws, ordinances, rules or regulations, Consultant shall immediately desist from and correct the violation. 12. NON-DISCRIMINATION COVENANT. Consultant, for itself, its personal representatives, assigns, subcontractors and successors in interest, as part of the consideration herein, agrees that in the performance of Consultant'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 Consultant, its personal representatives, assigns, subcontractors or successors in interest, Consultant agrees to assume such liability and to indemnify and defend the City and hold the City harmless from such claim 13. 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 confirmation of the transmission, or (3) received by the other party by United States Mail, registered, return receipt requested, addressed as follows: City of Fort Worth Attn: Susan Alanis, Assistant City Manager 1000 Throckmorton Fort Worth TX 76102-6311 Facsimile (817) 392-8654 With Copy to the City Attorney At same address 14. SOLICITATION OF EMPLOYEES. Symon Communications, Inc. Attn: Steve Townley Director of Contract Management 500 N. Central Expwy., Suite 175 Plano, TX 75074 Facsimile: 972.535.0003 Neither the City nor Consultant shall, during the term of this agreement and additionally for a period of one year after its termination, solicit for employment or employ whether as employee or independent contractor, any person who is or has been employed by the other during the term of this agreement, without the prior written consent of the person's employer. Notwithstanding the foregoing, this provision shall not apply to an employee of either party who responds to a general solicitation of advertisement of employment by either party. 15. GOVERNMENTAL POWERS/IMMUNITIES It is understood and agreed that by execution of this Agreement, the City does not waive or surrender any of its governmental powers or immunities. 16. NO WAIVER. The failure of the City or Consultant to insist upon the performance of any term or provision of this Agreement or to exercise any right granted herein shall not constitute a waiver of the City's or Consultant's respective right to insist upon appropriate performance or to assert any such right on any future occasion. IT Professional Services Agreement Revised June 2012 Symon Communications, Inc. 6 17. GOVERNING LAW / 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 pursuant to 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. 18. 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. 19. FORCE MAJEURE. The City and Consultant 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, 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. 20. HEADINGS NOT CONTROLLING. Headings and titles used in this Agreement are for reference purposes only, shall not be deemed a part of this Agreement, and are not intended to define or limit the scope of any provision of this Agreement 21. REVIEW OF COUNSEL. The parties acknowledge that each party and its counsel have reviewed and revised 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. 22. AMENDMENTS. No amendment of this Agreement shall be binding upon a party hereto unless such amendment is set forth in a written instrument, which is executed by an authorized representative of each party. 23. ENTIRETY OF AGREEMENT. This Agreement, including the schedule of exhibits attached hereto and any documents incorporated herein by reference, contains the entire understanding and agreement between the City and Consultant, 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. 24. COUNTERPARTS. This Agreement 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 IT Professional Services Agreement Revised June 2012 Symon Communications, Inc. 7 25. WARRANTY OF SERVICES. Consultant 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 Consultant's option, Consultant 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 Consultant for the nonconforming services. 26. MILESTONE ACCEPTANCE. — Intentionally Deleted. 27. NETWORK ACCESS. If Consultant, and/or any of its employees, officers, agents, servants or subcontractors (for purposes of this section 'Consultant Personnel') requires access to the City's computer network in order to provide the services herein Consultant shall execute and comply with the Network Access Agreement which is attached hereto as Exhibit C" and incorporated herein for all purposes. 28. IMMIGRATION NATIONALITY ACT. The City of Fort Worth actively supports the Immigration & Nationality Act (INA) which includes provisions addressing employment eligibility, employment verification, and nondiscrimination. Consultant shall verify the identity and employment eligibility of all employees who perform work under this Agreement. Consultant 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 City with copies of all 1-9 forms and supporting eligibility documentation for each employee who performs work under this Agreement. Consultant shall establish appropriate procedures and controls so that no services will be performed by any employee who is not legally eligible to perform such services. Consultant shall provide City with a certification letter that it has complied with the verification requirements required by this Agreement. Consultant shall indemnify City from any penalties or liabilities due to violations of this provision. City shall have the right to immediately terminate this Agreement for violations of this provision by Consultant. 29. INFORMAL DISPUTE RESOLUTION. Except in the event of termination pursuant to Section 4.2, if either City or Consultant 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 commence the resolution process and 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 in Tarrant County, Texas 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. The mediator shall be agreed to by the parties. Each party shall be liable for its own expenses, including attorney's fees; however, the parties shall share equally in the costs of the mediation. 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 Notwithstanding the fact that the parties may be attempting to resolve a dispute in accordance with this informal dispute resolution process, the parties agree to continue without delay all of their respective duties and obligations under this Agreement not affected by the dispute Either party may before or during the exercise of the informal dispute resolution process set forth herein, apply to a court IT Professional Services Agreement Revised June 2012 Symon Communications, Inc. 8 having jurisdiction for a temporary restraining order or preliminary injunction where such relief is necessary to protect its interests. 30. SIGNATURE AUTHORITY. The person signing this agreement hereby warrants that he/she has the legal authority to execute this agreement 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. This Agreement, and any amendment(s) hereto may be executed by any authorized representative of Consultant whose name, title and signature is affixed on the Verification of Signature Authority Form, which is attached hereto as Exhibit "D" and incorporate herein by reference. Each party is fully entitled to rely on these warranties and representations in entering into this Agreement or any amendment hereto. [SIGNATURE PAGE FOLLOWS] IT Professional Services Agreement Revised June 2012 Symon Communications, Inc. 9 IN WITNESS WHEREOF, the parties hereto have executed this Agreement in multiples this gig of pecet64,9-r 20 ACCEPTED AND AGREED: CITY OF FORT WORTH: S,usan'Alanis Assistant City Manager Date: \ I 1 l -'7 SYMON COMMUNICATIONS, INC.: By: tine: William G. Cole I) le: Chief Financial Officer �,aa-� ��� Date: ig ! el (A a Avest mir, 0000000 - 47\i OccSoou °°cAto% °00 0 _ �'��o _ TTE 1 ._40 c-fnodiri CP 8210 *cofl. ,� 0 y: ,,� 0002:(T9\ 49 S4.Q.Q.evt,TaAa, Di' r@odor Cc,dr&ctr APPROVED AS TO FORM AND LEGALITY: By. Maleshia B. armer Senior Assistant y orney CONTRACT AUTHORIZATION: M & C : "Wyk/ t' !?rgE Date Approved: IT Professional Services Agreement Symon Communications, Inc. OFFICIAL RECORD CITY SECRETARY io LAT. • Revised June 2012 EXHIBIT A QUOTE AND PRODUCT SUMMARY IT Professional Services Agreement Revised June 2012 Symon Communications, Inc. 11 Quote Number Q-00008400 Created Date Expiration Date Prepared By Phone E-mail Fax Product Summary 8010-HOS 8161ML 7323ML 8443 1630 1514 1512 9105 9106 12/19/2012 11 f 112012 Brent Vincent (972) 543-9571 bvincent@symon.com (702) 995-0502 Symon Hospitality Suite Design Studio (Qty 2-5) each Collector - ODBC Collector SDA-905 Basic Creative Services Starter Kit BAE Hospitality SW Support Installation >31 hours Prof. Services -Hospitality Project Management Travel & Living - 1st day Travel & Living - extra day MISC-SERVICES Miscellaneous Services SYMONCARE-HW SymonCare - Symon Hardware SYMONCARE-SW MSRP Total SymonCare - Symon Software Account Name Quote Name Fort Worth Convention Center Fort Worth CC & Will Rogers MC-MLII Upgrade FOB Prepay and Add: Plano , TX Warranty: 90 days Payment Terms: Net 30 Days Contact Name Phone Email Betty Tanner (817) 392-2505 betty.tanner@fortworthtexas.gov SES Software - FWCC is responsible 1 for the server. Design Studio for Will Rogers. 1 - Interface for FWCC and 1 - Interface for WRM. 1 - Player for Fort Worth CC and 1 Player for Will Rogers 1 - Content Creation for FWCC and 1 Content Creation for WRM. Symon BAE Onsite configuration of the SDA's and training. 1 2 40 Symon Project Management. 20 BAE Travel and Living. 1st Day. BAE Travel and Living. 2nd through 5th Day. This is a not to exceed on Shipping of the 2 SDA's and software. 4 1 SymonCare Plus - Hardware - 1 Year 1 SymonCare Plus - Software - 1 Year USD 37,187,00 Subtotal Total Price Grand Total USD 8,000.00 USD 2,400.00 USD 3,000.00 USD 2,130.00 USD 2,500.00 USD 150.00 U SD 250.00 U SD 1,500.00 USD 300.00 USD 120.00 USD 171.00 ; USD: 536.00 USD 8,000.00 USD 2,400.00 USD 3,000.00 USD 4,260.00 USD 5,000.00 USD 6,000.00 USD 5,000.00 USD ,500.00 USD ,200.00 -USD 120.00 USD 171.00 USD 536.00 USD 0.00 USD 960.00 USD 0.00 USD 1,199.95 USD USD 1,200.00 0.00 U SD USD 1,278.00 2,604.78 USD: USD 1,400.00 U SD 0.00 U SD 0.00 USD 0.00 USD 0.00 USD 0.00 USD 0.00 USD 0.00 3,600.00 USD 6,000.00 USD 5,000.00 USD 1,500400 USD 1,200.00 USD 120.00 USD 171.00 USD 536.00 U SD 32,349,00 USD 21,931.73 USD 21,931.73 Quote Number Q-00008400 Additional Quote Terms Client will provide server. They will combine the Fort Worth CC and the Will Rogers onto the one server. Terms and Conditions This Symon Quote is bound by the terms and conditions listed hereof. *unless listed on a line item separately above, shipping charges, travel & living expenses, and sales/use taxes will be calculated separately and added to the final invoice amount. Authorized Signature: By signing this Price Quotation, you represent and warrant that you are authorized to execute this document on behalf of Signature: Date: Printed Name: Is a P.O. required? [ ] No [ } Yes - P. O. Number: Address Information Bill To Name Fort Worth Convention Center Bill To 1201 Houston Street Fort Worth, TX 76102 USA Additional Terms and Conditions Title: Ship To Name Fort Worth Convention Center Ship To 1201 Houston Street Fort Worth, TX 76102 USA Freight charges, to be pre -paid by Symon and charged to Customer, will be billed separately on the invoice. Shipping is F O.B. Destination, with shipping costs to be reimbursed to Symon by Customer. Title and Risk of loss/damage remains with Symon until delivery, when title and nsk of loss/damage transfer to Customer Customer must notify Symon within ten (10) business days of receipt of any damaged product, or Customer assumes all responsibility for shipping damage. Symon's standard shipping mode is• Fed -EX ES (Federal Express Saver 3 day delivery) Please advise if you would prefer other shipping arrangements such as: Fed -Ex E2 (2nd day delivery) Fed -Ex Standard Overnight (arrival next business day) Fed -Ex Priority Overnight (arrival before 10:30am next day) Fed -Ex First Overnight (arrival before 8:30am next day) Please consult with your Symon sales representative if you would like us to arrange for direct billing on your preferred carrier at your corporate rates. Symon Standard Agreements Unless the parties have executed a formal written agreement (such agreement shall govern and supersede any terms and conditions contained herein) Symon's standard agreements shall govern all products and services described herein Symon expressly rejects any additional or conflicting provisions in any customer ordering document, such as a purchase order or the like. Symon's standard agreerents can be found at: http://www.svmon.com/aoreements Symon All or Nothing Maintenance Policy And Third Party Exclusion You acknowledge Symon's "Ail or Nothing Maintenance Policy" which requires that all Products attached to a single system (meaning a distinct installation of Symon Enterprise Software and all Products connected thereto) must have Maintenance or none of the Products will receive Maintenance, and all Products must be on the same level of Maintenance. This does not apply to Symon LED Displays. Quote Number Q-00008400 Third Party Hardware warranty and support is only available from the manufacturer. Symon does not provide Maintenance for Third Party Hardware that is not manufactured by Symon These products fall under the normal manufacturing warranties provided by the manufacturer. In the trouble -shooting of Customer's Products, if Symon, it its sole discretion, determines that Third Party Hardware is malfunctioning, it is the Customer's responsibility to resolve the issue directly with the manufacturer. Symon Professional Services Policies Symon Communications Inc. will provide to Customer the Services and Deliverables specified in the Sales Order, and any relevant Statement Of Work or Work Order. Please refer to the following web link for details of the Symon Professional Services Policies stated therein: htto://www.svmon.com/oolicies Minimum Hardware Requirements Statement For recommended minimum technical requirements for your Symon system, please link to the following web page: htto://www.svmon com/requirements Symon Return Policies Symon's product return and warranty replacement policies and procedures can be found at: http://support.symon.com/returns htto://www.svmon.com/returns Terms and Conditions: By signing this Price Quotation, you are agreeing to purchase the products and the services and/or license the software listed on this Price Quotation, and you are agreeing to the terms and conditions contained herein. You represent that you are duly authorized to execute this agreement. If your company requires a Purchase Order to authorize payment, you agree to facilitate the submission of a Purchase Order to Symon in a timely manner in order to meet the payment terms listed herein. If no Symon Implementation Services are being purchased herein, you acknowledge that Symon will only provide minimal phone assistance with your installation — help with one instance of each type of HW and client SW (non-SES Server) - and any further assistance will incur a charge at Symon's standard rates. Services are subject to resource availability. Unless otherwise agreed in writing, Symon shall invoice Customer for all Products, related fixed -fee Professional Services, shipping charges and taxes upon shipment of the Products. Invoicing for any reimbursable expenses (travel, food, lodging, etc.) shall occur upon completion of the related Professional Services. Payment for all invoices shall be due within thirty (30) days of receipt of the invoice. Security Interest. As collateral security for the prompt and complete payment and performance when due of all amounts hereafter owed by you to Symon hereunder, you hereby grant to Symon a security interest in the products and all proceeds (as defined in the Uniform Commercial Code (the "UCC")) thereof, which security interest (i) is taken or retained by Symon to secure the purchase price thereof and (ii) is a purchase -money security interest (as defined in the UCC). Upon any default of your obligations hereunder, Symon shall have all the rights of a secured party under the UCC. You hereby authorize Symon to file and record financing statements and other filing or recording documents or instruments with respect to such collateral. Fax or mail this signed Price Quotation (including your Purchase Order if applicable) to: Symon Communications, Inc. Attn.: Sales Order Processing 500 North Central Expressway, Suite 175 Plano, TX 75074 Quote Number Q-00008400 Product Breakdown 8010-HOS 8161ML 7323ML 8443 Symon Hospitality Suite Design Studio (Qty 2-5) each Collector - ODBC Collector SDA-905 Basic Creative 1630 digital signage solutions based upon the aesthetic, style guide and messaging requirements; 3) up Services Starter Kit to 8 hours of content development work by Symon's graphic designers for the purpose of creating the digital content required to bring the design to reality. NOTE Symon will if applicable, create a design that may be used as the basis for both portrait and landscape oriented screens Additional Symon Professional Services are required for Project Management and Implementation of the Creative Services deliverables. Symon Hospitality Suite is a state-of-the-art gateway to digitally communicate across a broad array of on -property display options: freestanding flat -panel HD video displays in custom furniture casework, in -room television, interactive kiosks and small -format LCD displays mounted directly on entryways throughout a facility. The Symon Hospitality Suite includes Symon Enterprise Software, Design Studio, Design Studio Lite (qty 5), Event Management software, one Named User License of Symon InView software and first year warranty and maintenance. Symon Design Studio Qty 2 - 5; includes first year of SymonCare. The ODBC data collector is a realfime data collector that allows you set up a DSN (data source name) and enables the PortalSvc to communicate with the server and monitor fields from databases. The most common database used with the ODBC data collector are SQL, Sybase, and Oracle By connecting to these databases and collecting field data, allows Symon subscriber applications to access the data and display them any of Symon's display media; includes first year of SymonCare. The SDA-905 is a small footprint media player featuring Windows Embedded Standard 7, Core i CPU, solid state hard drive, VGA, and DisplayPort output. Dimensions: 6 54(W) x 1 89(H) x 6.18(D)inches. 1514 1512 9105 9106 MISC-SERVICES SYMONCARE-HW SYMONCARE-SW BAE Hospitality SW Support & Installation >31 hours Prof. Services -Hospitality Project Management Travel & Living 1st day Travel & Living - extra day Miscellaneous Services SymonCare - Symon Hardware SymonCare - Symon Software First year SymonCare included. A graphic design engagement whereby Symon designs and develops the initial content of your new digital signage deployment. The Basic Starter Kit consists of the following: 1) A consultative session between members of your team and a Symon graphic designer for the purpose of achieving a common understanding of your digital signage aesthetic, style guide and messaging requirements; 2) a design initiative whereby a Symon designer creates a basic screen design and layout for your New system estimated BAE On -Site Services Fees for more than 32 contiguous hours. Services may include software setup, installation and interface configuration setup (Symon does not provide actual hardware installation services), plus actual travel and living expenses. Subject to BAE availability. Rate is per hour per person; 8 hour minimum per day Project coordination, planning, scheduling, management of risk and scope, communicating with all project stakeholders, change management, pre -requisite oversight, procurement, shipping, [receiving, budget management and coordination meetings with client, other trades and the Symon internal team. Professional Services Travel and Living (Day One): Professional Services Travel fees for Day one within the continental U.S.. This is exclusive of Professional Services Fees Professional Services Travel and Living (Each Additional Day): Professional Services Travel fees for extra days within a single week within the continental U.S.. This is exclusive of Professional Services Fees. Miscellaneous Services Quote Number Q-00008400 EXHIBIT B SOFTWARE LICENSE AGREEMENT IT Professional Services Agreement Revised June 2012 Symon Communications, Inc. 12 EXHIBIT B SOFTWARE LICENSE AGREEMENT This is a legal and binding Software License Agreement ("Agreement") between the end user or the end user's employer, whether an individual or an entity ("Customer") and Symon Communications Inc. ("Symon"). Customer may reject the Agreement (and return the Media, where applicable) if these terms are unacceptable or cannot be resolved through negotiation. All other Symon products and services are governed by the standard Symon agreements available at www,svl pnq.com/agreements. 1. PEFINITIONS, Capitalized words shall have the meanings defined as follows: 1.1. "Documentation" shall mean the Symon-supplied related hard -copy or electronically reproducible technical and user documents associated and provided with the Software 1 2 "Intellectual Property Rights" shall mean United States patent, copyright, trademark, trade secret, and any other intellectual property right(s), but not such rights in other countries. 1.3. "Media" shall mean the Symon-supplied tangible medium in which the Software and/or Documentation are fixed. 1.4. "Products" shall mean collectively the Media, Software and Documentation and all Product maintenance releases and updates provided to Customer under a separate agreement 1.5. "Single -User Software" shall mean Software that is restricted to single -user computing devices operated by a specifically -licensed individual for purposes of display to only that licensed user. Such Software includes, but is not limited to DeskView, InView, Vista and any future Software that Symon so designates 1.6 "Software" shall mean all Symon-supplied original computer files (including all computer programs and data stored in such files) delivered on the Media, or electronically or embedded in Symon computer equipment as firmware, all whole or partial copies thereof, including modified copies and portions merged into other programs, and copies provided under maintenance or any other services. Software shall include all Symon proprietary software, as well as all Third Party Software incorporated into the Software. 1.7. "Third Party Providers" shall mean third party entities that provide Third Party Software to Symon for incorporation into the Software 1.8. "Third Party Software" shall mean any software products incorporated into the Software that is supplied to Symon by any third party entity and that Symon is authorized to sub -license to Customer All Customer obligations and restrictions described herein with respect to Customer's use of the Software shall also extend to all Third Party Software. 2. J.ICENSE. The Software is licensed, not sold. Subject to these terms and Customer's payment of the applicable fees, Symon grants Customer this limited, non -sub -licensable, non-exclusive and, except as expressly authorized herein, non- transferable license ("License") to install and use the Software on the number of computers and/or devices for which Customer has purchased Licenses. If the Software is used to transmit information to non-Symon output devices (monitors, pagers etc.) or non-Symon applications Customer acknowledges and agrees that the License is granted on a per display and per application basis, with License fees based upon the number of devices and applications to which the data to be displayed is broadcast. Further, Single -User Software shall only be licensed to specific users utilizing single -user computing devices (such as individual workstation monitors and not displays in public forums or displays meant for viewing by multiple viewers) and any such usage in violation of the foregoing shall be considered a material breach of this Agreement. All rights in and to the Product, including but not limited to, trademarks, copyrights and trade secret rights, belong to Symon. SYMON RESERVES ALL RIGHTS NOT EXPRESSLY GRANTED HEREIN. 3. COPYRIGHT. Both United States copyright law and applicable international treaties protect the Product and, therefore, Customer must treat the Product like any other copyrighted material. To the extent expressly permitted by applicable law or treaty, Customer may copy the Software only for archival and backup purposes as long as Customer documents the existence of such backup/archival copies Customer may also make copies of the Documentation for Customer's own internal use. Any reproductions, copies, or modifications of the Product must include Symon's copyright and other proprietary rights notices. The original and any copies of the Product, in whole or in part, shall at all times remain Symon's property. Page 1 of 6 SW License v5.1— 28Mar1 l 4. RESTRICTIONS. The Software represents and embodies trade secrets and confidential information of Symon and its suppliers. Except in accordance with the terms of this License or as an essential step in utilizing the Software, but only to the extent permitted by applicable law or treaty, Customer agrees (a) not to decompile, disassemble, reverse engineer, or otherwise attempt to derive the Software's source code from the object code; (b) not to rent, lease, sublicense, modify or create derivative works, or otherwise transfer the Software to third parties; and (c) not to make the Software available in any form to any person other than Customer s employees and contractors whose job performance requires such access; and (d) to use reasonable care and protection to prevent the unauthorized use, copying, publication or dissemination of the Product. Customer may fully transfer the Product on a permanent basis to someone outside of Customer's company, provided (i) Symon consents to the transfer in writing; (ii) Customer keeps no copies of the Product, except for archival purposes; and (iii) the recipient agrees in writing to be bound by the terms of this Agreement. If any part of the Product has been updated by Symon, then the transfer must include the most recent update and all prior versions Unless expressly authorized by Symon in writing Customer may only use each licensed copy of the Software on a single computer to process Customer s internal data or the data of its affiliates, not the data of third parties. Notwithstanding anything else in this Agreement, Customer shall not allow access to the Software by any service bureau, third party outsourcer, or other similar third party service provider unless Symon consents to such access in writing. 5. TERM AND TERMINATION. Unless terminated according to this section, Customer's License will be perpetual beginning on the date Customer purchases the License. Customer may terminate the License at any time for any reason The License and Customer's right to use the Products will terminate if Customer fails to comply with any material term of this Agreement (or any failure to comply with any material term of a lease if the Software is provided under a lease), and Customer does not cure such breach within thirty (30) days. When the License is terminated Customer must erase or destroy all components of the Products (including all copies of the Software except for archival copies), and stop using or accessing the Software. All provisions of this Agreement relating to License restrictions, disclaimers of warranties, limitation of liability, remedies or damages, and Symon's confidential and proprietary rights shall survive termination. 6. TITLE AND LIMITED WARRANTY, Symon represents and warrants that it has title or proprietary right to license the Software (and to sub -license any Third Party Software to which Symon does not have title or proprietary rights) free and clear of all liens and encumbrances. Symon represents and warrants that it has the full legal right to enter into this Agreement and to perform its obligations under this Agreement. Symon represents and warrants that no portion of the Software contains, at the time of delivery, any "back door," "time bomb," "Trojan horse,"`worm," "drop dead device,' "virus," or other computer software routines designed to (i) permit unauthorized access or use of the Software, or (ii) disable, damage or erase the Software. Symon warrants, upon return of the warranted item to the place Customer obtained it, that: (a) if at any time during the warranty period, the Media is in a damaged or physically defective condition, Symon will provide replacements to Customer at no charge; and (b) if the Software fails to substantially conform to the specifications in the Documentation, and if Customer reports the nonconformity in writing to Symon (or to Customer's Symon reselier), then Symon will either remedy the nonconformity or, in Symon's sole discretion, refund your License fees to you, in which case, this License and Customer's right to use the Product will automatically terminate. Symon will have no obligations under this Section 6 if the breach of warranty is caused by Customer's abuse misuse, alteration, neglect, or accidental damage of the Software; or the unauthorized repair, modification, or installation of the Software; or the use or attempted use of Software other than as supplied and supported by Symon This sets forth Customer's SOLE AND EXCLUSIVE REMEDIES and the SOLE BASIS OF WARRANTY LIABILITY for Symon. Software warranty periods Unless otherwise specified in writing, Symon's warranty period is ninety (90) days, commencing the date of installation or sixty (60) days from shipment, whichever comes first. If the Software is provided under a lease, the Software warranty period shall be the term of the lease. BECAUSE OF THE RIGHTS SYMON EXPRESSLY GRANTS TO CUSTOMER IN THIS AGREEMENT, CUSTOMER AGREES THAT SYMON MAKES NO OTHER WARRANTY, CONDITION, REPRESENTATION OR PROMISE. SYMON HEREBY DISCLAIMS AND NEGATES ALL OTHER EXPRESS AND IMPLIED WARRANTIES OF MERCHANTABILITY, TITLE OR FITNESS FOR A PARTICULAR PURPOSE. SYMON DOES NOT WARRANT THAT THE SOFTWARE WILL SATISFY CUSTOMER'S REQUIREMENTS, THAT IT IS WITHOUT DEFECT OR ERROR, THAT ITS OPERATION WILL BE UNINTERRUPTED, OR THAT IT WILL OPERATE IN COMBINATION WITH OTHER SOFTWARE AND HARDWARE UTILIZED BY CUSTOMER. Page 2 of 6 SW License v5.I — 28Marl 1 7. EXCLUSION OF DAMAGES AND LIMITATION OF LIABILITY, IN NO EVENT WILL EITHER PARTY BE LIABLE FOR ANY INDIRECT, SPECIAL, CONSEQUENTIAL OR PUNITIVE DAMAGES, INCLUDING WITHOUT LIMITATION, DAMAGES FOR LOSS OF PROFITS OR LOSS OF DATA, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT WILL EITHER PARTY'S LIABILITY FOR DAMAGES HEREUNDER EXCEED THE AMOUNTS ACTUALLY PAID BY CUSTOMER UNDER THIS AGREEMENT. THE PARTIES ACKNOWLEDGE THAT THE LIMITATIONS OF LIABILITY IN THIS SECTION 8 AND IN OTHER PROVISIONS OF THIS AGREEMENT AND THE ALLOCATION OF RISK HEREIN ARE AN ESSENTIAL ELEMENT OF THE BARGAIN BETWEEN THE PARTIES, WITHOUT WHICH SYMON WOULD NOT HAVE ENTERED INTO THIS AGREEMENT. SYMON'S PRICING REFLECTS THIS ALLOCATION OF RISK AND THE LIMITATION OF LIABILITY SPECIFIED HEREIN. THE FOREGOING SHALL NOT LIMIT THE INDEMNIFICATION, DEFENSE AND HOLD HARMLESS OBLIGATIONS SET FORTH IN THIS AGREEMENT, NOR WILL IT APPLY TO A BREACH OF SECTION 4 "RESTRICTIONS" 8. SYMON INDEMNITY. Symon will indemnify, defend and hold Customer harmless from and against any and all losses, claims, liabilities, costs and expenses, including taxes fees fines, penalties, interest, reasonable expenses of investigation and attorneys' fees arising out of, or relating to, a claim by a third party that the Software infringes upon a third party's Intellectual Property Rights; PROVIDED THAT Customer promptly notify Symon in writing of such suit or threat thereof and cooperate at Symon's request, in the defense of such suit or claim. Symon's indemnity obligation under this Section 8 shall not extend to claims based on: (i) an unauthorized modification of the Software made by Customer where the Software would not be infringing without such modification, or (ii) customized portions of the Software designed in accordance with written specifications provided by Customer where the Software would not be infringing without such customized portions, or (iii) use or incorporation of the Software with other products not provided by Symon or in a manner not approved by Symon. In the event a claim of infringement is made, or Symon believes that such a claim is likely to be made, then Symon shall at its expense• (a) procure the right to continue using the Software; (b) replace or modify the Software so that it becomes non - infringing; or (c) if neither (a) or (b) above is commercially practical then at Symon s sole option, remove the infringing Software, and issue to Customer a credit equal to the amount paid by Customer for those Software, amortized over a five (5) year period, and issue a full credit equal for any prepaid fees already received by Symon 9. CUSTOMER WARRANTY. Symon's grant of this license and rights hereunder to Customer for the use of the Software does not authorize Customer to use the Software to infringe upon the Intellectual Property Rights of third parties, nor use the Software in any unlawful manner. Customer warrants that it will obtain all necessary licenses, permissions and/or other authorizations necessary to utilize, display and distribute any third party materials. Customer warrants that it will not use the Software in a manner that violates any third party's Intellectual Property Rights. Such violations may include, but are not limited to, unauthorized use reproduction, modification, distribution or public display of materials owned by third parties, or any decompiling, disassembly reverse engineering, or otherwise attempts to derive the Software's (including Third Party Software) source code from the object code. Customer further warrants that it will not use Software in any unlawful manner. 10. DISPUTE RESOT,TITTON. The parties desire to resolve disputes arising out of this Agreement without litigation. Accordingly, except for action seeking a temporary restraining order or injunction related to the purposes of this Agreement, or suit to compel compliance with this dispute resolution process, the parties may, upon mutual written consent, agree to use the following alternative dispute resolution procedure as their sole remedy with respect to any controversy or claim arising out of or relating to this Agreement or its breach. At the written request of a party, each party will appoint a knowledgeable, responsible representative to meet and negotiate in good faith to resolve any dispute arising under this Agreement. The location format, frequency duration and conclusion of these discussions shall be left to the discretion of the representatives. Upon agreement, the representatives may utilize other alternative dispute resolution procedures such as mediation to assist in the negotiations. To the extent allowed by 1 a w , discussions and correspondence among the representatives for purposes of these negotiations shall be treated as confidential information developed for purposes of settlement exempt from discovery and production, which shall not be admissible in the arbitration described below or in any lawsuit without the concurrence of all parties. Documents identified in or provided with such communications, which are not prepared for purposes of the negotiations, are not so exempted and may, if otherwise admissible, be admitted in evidence in the arbitration or lawsuit. If the negotiations do not resolve the dispute within thirty (30) days of the initial written request, the dispute may be submitted Page 3 of 6 SW License v5.1 — 28Mar11 to binding arbitration by a single arbitrator pursuant to the Commercial Arbitration Rules of the American Arbitration Association. A party may request such arbitration in accordance with the procedures set out in those rules The arbitration shall be held in Tarrant County, Texas The arbitrator shall control the scheduling so as to process the matter expeditiously. The parties may submit written briefs. The arbitrator shall rule on the dispute by issuing a written opinion within thirty (30) days after the close of hearings. The times specified in this section may be extended upon mutual agreement of the parties or by the arbitrator upon a showing of good cause Judgment upon the award rendered by the arbitrator may be entered in any court having jurisdiction. Each party shall bear its own costs of these procedures A party seeking discovery shall reimburse the responding party for the costs of production of documents (to include search time and reproduction costs), in accordance with cost rules set forth in the Texas Administrative Code. The parties shall equally split the fees of the arbitration and the arbitrator. 11. AUDIT. Customer agrees to maintain records documenting Customer's compliance to the terms and conditions of this Agreement, including the number and location of the Licenses deployed under this Agreement. Symon reserves the right to periodically audit Customer's records and the Products licensed hereunder to ensure that Customer is not in violation of this Agreement. All audits done by Symon, or a third party auditor under a duty of confidentiality, shall be done after Customer has been provided with prior written notice, and shall be performed during Customer's standard business hours The cost of any requested audit will be solely borne by Symon. 12. GENERAL TERMS 12.1. Relationship Between the Parties In performance of this Agreement, Symon is acting as an independent contractor. Nothing in this Agreement creates a partnership, joint venture, or agency relationship between the parties. 12.2. Law. This Agreement and all matters arising out of or relating to this Agreement will be governed by the internal laws of the State of Texas In the event of any controversy claim, or dispute between the parties arising out of or relating to this Agreement, such controversy, claim, or dispute may be tried solely in a state or federal court for Tarrant County, Texas and the parties hereby irrevocably consent to the jurisdiction and venue of such courts. 12.3 Force Maieure Neither party shall be liable under this Agreement because of any failure or delay in the performance of its obligations (except for payment of money) on account of strikes, shortages, riots, fire, flood, storm, earthquake, acts of God or any other cause beyond its reasonable control. 12.4. Notice. Wherever one party is required or permitted to give notice to the other pursuant to this Agreement, such notice shall be deemed given when delivered in hand, when mailed by registered or certified mail, return receipt requested, postage prepaid, or when sent by a third party courier service where receipt is verified by the receiving party's acknowledgment, and addressed as follows: In the case of Symon Symon Communications, Inc. Attn: Director of Contract Management 500 North Central Expressway Suite 175 Plano, Texas 75074 In the case of Customer City of Fort Worth Attn: Assistant City Manager 1000 Throckmorton Street Fort Worth, Texas 76102 With copy to City Attorney At same address Page 4 of 6 SW License v5.1 — 28Marl l Either party may from time to time change its address for notification purposes by giving the other party written notice of the new address and the date upon which it will become effective. 12.5. Severability and Construction If but only to the extent that, any provision of this Agreement is declared or found to be illegal, unenforceable, or void, then both parties shall be relieved of all obligations arising under such provision, it being the intent and agreement of the parties that this Agreement shall be deemed amended by modifying such provision to the extent necessary to make it legal and enforceable while preserving its intent If that is not possible, another provision that is legal and enforceable and achieves the same objective shall be substituted If the remainder of this Agreement is not affected by such declaration or finding and is capable of substantial performance, then the remainder shall be enforced to the extent permitted by law No rule of construction will apply in the interpretation of any provision of this Agreement to the disadvantage of one party on the basis that such party put forward or drafted such provision. 12.6. Waiver Any waiver of this Agreement or of any covenant, condition, or agreement to be performed by a party under this Agreement shall (i) only be valid if the waiver is in writing and signed by an authorized representative of the party against which such waiver is sought to be enforced, and (ii) apply only to the specific covenant, condition or agreement to be performed the specific instance or specific breach thereof and not to any other instance or breach thereof or subsequent instance or breach. 12.7. Headings. The headings in this Agreement are for purposes of reference only and shall not in any way limit or affect the meaning or interpretation of any of the terms herein. 12.8. Remedies. The remedies reserved by either party in this Agreement shall be cumulative and additional to any other remedies provided in law or equity. Customer agrees that if any provision of this Agreement is breached, a remedy in law may be inadequate and, therefore, without limiting any other remedy available at law or equity, the parties are entitled to any form of injunctive relief as awarded by a court of competent jurisdiction. 12.9. No Assignment. Neither party may assign, sell, transfer, delegate, or otherwise dispose of, whether voluntarily or involuntarily, by operation of law or otherwise, this Agreement or any rights or obligations under this Agreement unless the other party consents in writing and the assignee agrees in writing to be bound by the terms and conditions of this Agreement. Subject to the foregoing this Agreement will be binding upon and shall inure to the benefit of the parties and their respective successors and assigns Notwithstanding the foregoing, nothing in this Section shall prevent Symon from engaging third party subcontractors in the performance of its obligations under this Agreement; however Symon shall remain obligated to Customer for the performance of any subcontracted services under this Agreement. 12.10. Exhort Administration Customer will comply fully with all relevant export laws and regulations of the United States, including without limitation the U.S. Export Administration Regulations (collectively "Export Controls"). Without limiting the generality of the foregoing, Customer will not and shall require its representatives not to export, direct, or transfer Deliverables or any direct product there of to any destination person, or entity restricted or prohibited by the Export Controls. 12.11. U.S. Government Restricted Rights. Use, duplication, or disclosure by the U.S. Government is subject to restrictions set forth in FAR Sections 52.227-14 Alt. III (g) (3), FAR Section 52.227-19 or DFARS 252.227-7013, as amended from time to time. The Contractor/Manufacturer is Symon Communications, Inc., 500 N Central Expressway, Suite 175, Plano, Texas 75074. 12.12. Third Party Beneficiaries. Intentionally deleted. 12.13. Survival. The parties hereto agree that provisions which expressly or by their nature continue to apply after the termination or expiration of this Agreement shall survive the termination or expiration of this Agreement. 12.14 Security Interest. Intentionally deleted. 12.15. Entire Agreement. This Agreement, together with all attachments hereto, and all documents referenced herein, each of which is incorporated herein for all purposes represents the entire agreement of the parties, and supersedes all prior agreements authorizations, negotiations, or proposals, with respect to the subject matter of this Agreement. The parties agree that any other terms or conditions included in any quotes, acknowledgments, confirmations, purchase orders or other forms utilized or exchanged by the parties shall not be incorporated herein or be binding unless expressly agreed upon in writing by authorized representatives of the parties All other Symon products and services are governed by the standard Symon Page 5 of 6 SW License v5.1— 28Mar I 1 SynAeiolt agreements available at I' Vw.&yjnon.contiagreenignts IN WITNESS WHEREOF, the parties hereto have caused th date written below. is Agreement to be executed by their duly authorized officeron the City of Fort Worth ("Customer") By. Aie) Name: san Alanis Title: Assistant City Manager Date: (t APPROVED � TO RM AND LEGALITY Assistan City Attorney 0 Symon Communications, Inc, ("Symo By: Name•/William G. Cole Title: Chief Financial Officer Date: a/ 2(i/ Page 6 of 6 SW License vS.1 — 28Mar 11 OFFICIAt RECORD CITY SE©RFT/\PV 1' 110 W0RTg WE EXHIBIT C NETWORK ACCESS AGREEMENT 1. The Network. The City owns and operates a computing environment and network (collectively the "Network"). Contractor wishes to access the City's network in order to provide support for the installation vi' fci the Message Link software and its components for the Public Events Department for use at the Fort Worth Convention Center and Will Rogers Memorial Coliseum In order to provide the necessary support Contractor needs access to the City of Fort Worth's internal network, specifically the servers and/or computers that will run the Message Link software. These servers and/or computers will be identified upon commencement of the services to be provided under the Agreement. 2. Grant of Limited Access. Contractor is hereby granted a limited right of access to the City's Network for the sole purpose of providing the services set forth in Section 1 above. Such access is granted subject to the terms and conditions forth in this Agreement and applicable provisions of the City's Administrative Regulation D-7 (Electronic Communications Resource Use Policy), of which such applicable provisions are hereby incorporated by reference and made a part of this Agreement for all purposes herein and are available upon request. 3. Network Credentials. The City will provide Contractor with Network Credentials consisting of user IDs and passwords unique to each individual requiring Network access on behalf of the Contractor. Access rights will automatically expire one (1) year from the date of this Agreement. If this access is being granted for purposes of completing services for the City pursuant to a separate contract, then this Agreement will expire at the completion of the contracted services, or upon termination of the contracted services, whichever occurs first. This Agreement will be associated with the Services designated below. ❑ Services are being provided in accordance with City Secretary Contract No. ❑ Services are being provided in accordance with City of Fort Worth Purchase Order No. X Services are being provided in accordance with the Agreement to which this Access Agreement is attached. ❑ No services are being provided pursuant to this Agreement. 4. Renewal. At the end of the first year and each year thereafter, this Agreement may be renewed annually if the following conditions are met. 4.1 Contracted services have not been completed. 4.2 Contracted services have not been terminated. 4.3 Within the thirty (30) days prior to the scheduled annual expiration of this Agreement, the Contractor has provided the City with a current list of its officers, agents, servants, employees or representatives requiring Network credentials. Notwithstanding the scheduled contract expiration or the status of completion of services, upon request from the City, Contractor shall provide the City with a current list of officers agents, servants employees or representatives that require Network credentials. Failure to adhere to this requirement may result in denial of access to the Network and/or termination of this Agreement. 5. Network Restrictions. Contractor officers agents, servants, employees or representatives may not share the City -assigned user IDs and passwords. Contractor acknowledges, agrees and hereby gives its authorization to the City to monitor Contractor's use of the City's Network in order to ensure Contractor's compliance with this Agreement. A breach by Contractor, its officers, agents, servants, employees or representatives, of this Agreement and any other written instructions or guidelines that the City provides to Contractor pursuant to this Agreement shall be grounds for the City immediately to deny Contractor access to the Network and Contractor's Data, terminate the Agreement, and pursue any other remedies that the City may have under this Agreement or at law or in equity. 5.1 Notice to Contractor Personnel — For purposes of this section, Contractor Personnel shall IT Professional Services Agreement Revised June 2012 Symon Communications, Inc. 13 include all officers, agents, servants, employees, or representatives of Contractor. Contractor shall be responsible for specifically notifying all Contractor Personnel who will provide services to the City under this agreement of the following City requirements and restrictions regarding access to the City's Network: (a) Contractor shall be responsible for any City -owned equipment assigned to Contractor Personnel, and will immediately report the Toss or theft of such equipment to the City (b) Contractor, and/or Contractor Personnel, shall be prohibited from connecting personally - owned computer equipment to the City's Network (c) Contractor Personnel shall protect City -issued passwords and shall not allow any third party to utilize their password and/or user ID to gain access to the City's Network (d) Contractor Personnel shall not engage in prohibited or inappropriate use of Electronic Communications Resources as described in the City's Administrative Regulation D7 (e) Any document created by Contractor Personnel in accordance with this Agreement is considered the property of the City and is subject to applicable state regulations regarding public information Contractor Personnel shall not copy or duplicate electronic information for use on any non -City computer except as necessary to provide services pursuant to this Agreement All network activity may be monitored for any reason deemed necessary by the City A Network user ID may be deactivated when the responsibilities of the Contractor Personnel no longer require Network access 6. Termination. In addition to the other rights of termination set forth herein, the City may terminate this Agreement at any time and for any reason with or without notice, and without penalty to the City. Upon termination of this Agreement, Contractor agrees to remove entirely any client or communications software provided by the City from all computing equipment used and owned by the Contractor, its officers, agents, servants, employees and/or representatives to access the City's Network. 7. Information Security. Contractor agrees to make every reasonable effort in accordance with accepted security practices to protect the Network credentials and access methods provided by the City from unauthorized disclosure and use. Contractor agrees to notify the City immediately upon discovery of a breach or threat of breach which could compromise the integrity of the City's Network, including but not limited to, theft of Contractor -owned equipment that contains City -provided access software, termination or resignation of officers, agents, servants, employees or representatives with access to City -provided Network credentials, and unauthorized use or sharing of Network credentials. ACCEPTED AND AGREED: CITY OF FORT WORTH: By: ` 1A-W----- Susan)Alanis Assistant Ci y M nager Date: k ATTEST: By: City Secretary APPROVED AS,TO FORM A By. Assistant City Attorney M & C: none required IT Professional Services Agreement Symon Communications, Inc. c, 0000 SYMOty CO MUNICATIONS, INC.: By: �'���i/ +Va e: William G. Cole Titi Chief Fina cial fficer Date: 1 Qph,/ a ATT 4"1 tr (9) p ° \ 000 F'� Fy G t Q CT 173 g. 0 0 o OName: Steven W. Townley y oS!jTitle. Director of Contract Management q Q nV a" Li Matradt 14 Revised June 2012 EXHIBIT VERIFICATION OF SIGNATURE AUTHORITY Symon Communications, Inc. 500 N. Central Expressway, Suite 175, Plano, TX 75074 Services to be provided: Professional services to upgrade the electronic messaging system for the Fort Worth Convention Center and Will Rogers Memorial Coliseum Execution of this Signature Verification Form ("Form") hereby certifies that the following individuals and/or positions have the authority to legally bind the Company and to execute any agreement, amendment or change order on behalf of Company. Such binding authority has been granted by proper order, resolution, ordinance or other authorization of Company. The City is fully entitled to rely on the warranty and representation set forth in this Form in entering into any agreement or amendment with Company. Company will submit an updated Form within ten (10) business days if there are any changes to the signatory authority. The City is entitled to rely on any current executed Form until it receives a revised Form that has been properly executed by the Company. 1. NT-pet harlos H. Ansley Pp* :Chid F ive kielt4 Sitriature 2. Name: William G. Cole Position: hOh ief Financial Officer:, 1"/ ail / tipts /$jgn itu re 3. Nafne: Todd Sutherland Position: VP -Development Signature Nam arles H. \ • I Signature of President- resi�de_nt / CEO Other Title: Date: /' /24, (/,Q IT Professional Services Agreement Revised June 2012 Symon Communications, Inc. 15 EXHIBIT E Symon Professional Services Policies Last Updated October 18, 2010 IT Professional Services Agreement Revised June 2012 Symon Communications, Inc. 16 1. Definitions Capitalized terms not otherwise defined herein shall have the meaning ascribed to them in is this Policy. Company Symon Communications, Inc. and its subsidiaries. Business Day A contiguous block of 9 hours within the 10 hour period starting not before 8:00 a.m. or after 6:00 p.m., Local Time, Monday through Friday, excluding Holidays. Weekend Hours The period of time between 6:00 p.m. on Friday and 8:00 a.m. on Monday. Business Day Overnight Hours The period of time between 10:00 p.m. and 8:00 a.m local time each Monday through Thursday. Business Day After -Hours The period of time between 6:00 p.m. and 10:00 p.m local time each Monday through Thursday. Holidays The calendar days designated as National Holidays. In addition, Company may designate up to two additional days per Calendar year as Holidays Company U.S Holidays The calendar days designated by Company as holidays are• New Year's Day, Memorial Day, Good Friday, Independence Day, Labor Day, Thanksgiving Day the day following Thanksgiving Day and Christmas Day. Additionally, Company may designate up to two additional days per calendar year as Holidays. Customer User A User who is managing, administering or viewing the Company solution at the applicable point in time and who is trained in the use of the Company solution. Services The work performed or to be performed by Company for Client pursuant to a Sales Order, Purchase Order, or Statement of Work, including the development or modification of any Deliverables. Deliverables Those items to be delivered by Company to Customer pursuant to a Sales Order, Purchase Order, and/or Statement of Work. Customer The enterprise or government entity of the Deliverables provided under this Agreement. Documentation The Company's then current manuals, guides, and/or on-line help published by Company and made available in connection with the Company software, hardware, and Services. Customer Contact Personnel Customer representatives who have been trained on the Company products and have been designated to initiate support requests to Company. PSA Professional Services Agreement PIO Pre -Installation Questionnaire. The document required to prepare both the customer and Company for the IT Professional Services Agreement Revised June 2012 Symon Communications, Inc. 17 Company product installation. PS Professional Services BAE Business Application Engineer. The person(s) that performs Company product installation, configuration, training and/or performs applicable system integration. Quote A Company provided form documenting the configuration of Company hardware, software, or Services for which a customer may place a Sales Order. Sales Order An executed quote typically referencing a Purchase Order. Statement of Work (SOW) The standard Company document by which Customer in conjunction with the Company define the application development or project management Services and Deliverables from Company. T&M Time and Materials. Fees are based on actual time worked and expenses incurred plus applicable materials. Fixed Price (Fixed Priced Services) Fees are based on fixed price for a specific set of deliverables typically described in the SOW. T&L Travel and Living Expenses. Milestone (Project Milestone) The end of a stage that marks the completion of a deliverable, or phase, typically marked by a high level event such as completion, acceptance, endorsement or signing of a deliverable, document or a high level review meeting or discussion. Qualified Administrator A User who has been designated by Customer to access administration of Company's Products and has the appropriate security permissions, skills, and experience. Screen Similar to a page in a document or a slide in a presentation, a Screen is a unique and single page, or view, showing the output of Company software, at a given instance of time. Interactive Element An object defined with Design Studio Message with a defined link to an available object within a defined playlist. Basic Interactive Screen A screen where interactive elements are contained within a single message. Advanced Interactive Screen A screen where interactive elements are contained within a message that is further contained within a layout. The containing layout consists of less than 10 areas, and less than 3 nested layouts. 2. Professional Services and Deliverables IT Professional Services Agreement Revised June 2012 Symon Communications, Inc. 18 Services and Deliverables Company shall provide to Customer the Services and Deliverables specified in the relevant Sales Order, Work Order, Scope of Services or Statement Of Work and will exercise commercially reasonable efforts to do so according to any delivery schedule set forth therein. Company shall retain the sole control over the manner and means by which the Services are performed and may engage third parties in the performance of its obligations. Scope The scope of the project is as described in the above referenced documents. Any additional system functions business processes, source systems, etc. identified to be delivered during the project may increase the overall project cost. These will be addressed through the use of a formal change control process. The Project Sponsor and Company Project Manager will discuss the nature of any significant changes as soon as they become apparent. Change Control In the event that changes are made to the project scope, a formal process will be used to facilitate an orderly review of the requested change. The Change Review and Control Process which should take no more than 2 business days are as follows: 1. Upon realizing that the change may be necessary, the Customer Project Manager or Project Sponsor will discuss the change with the Company Project Manager to determine if it is material change to the project plan to warrant the Change Review and Control Process. 2. If the Process is deemed necessary the Company Project Manager will work with the Customer team to describe the change and estimate its impact on project resources, and costs. 3. The Company Project Manager and the Customer Project Manager will discuss the change and its anticipated impact, and then decide whether or not to proceed. 4. If the Company and Customer reach a joint decision to proceed with the change, the Company P roject Manager and the Customer Project Sponsor, as authorized by Customer s policies, rules and regulations, will indicate their agreement by signing a Change Review and Control form that describes the change and impact. 5. The change is incorporated to the project plan and resources, and costs are adjusted accordingly. P IQ (Pre -Installation Questionnaire) The purpose of the PIQ is to prepare both Company Professional Services and the Customer for the Company solution implementation. PIQs are technical documents filled out by the Customer describing the customer environment and system integration points Multiple PIQs may be presented to the Customer depending on the breadth of the Company solution and the content / system integration purchased. The PIQ is provided to the Customer post -sales by the Company Project Manager. Customer shall carefully answer all questions that will apply to the installation. A completed copy of the appropriate PIQ needs to be returned to Company prior to a Business Application Engineer (BAE) beginning system installation. PIQs for North America may be emailed to install@symon.com or faxed to (972) 422-1680 to the attention of PS Project Manager. PIQs for U.K., Europe, and India may be emailed to install@symon.co.uk or faxed to 44 (0) 208 663 1979 to the attention of PS Resource Manager. PIQs needs to be reviewed, approved, and signed then sent back to Company by the Customer prior to a BAE being dispatched to the Customer location or confirmed for remote installation U nless otherwise specified by Company's PS Project Manager, or BAE, the PIQ must be received by the end of business on Monday of the week preceding the installation week. If the PIQ is not received by then, Company has the right to cancel the installation and the customer will be responsible for any related charges as described in the Cancellation Policy. Services Delivery Delays IT Professional Services Agreement Revised June 2012 Symon Communications, Inc. 19 Company reserves the right to delay or terminate the installation early for any of the following or similar reasons but not limited to: • The PIQ has not been completed, signed by Customer, and received by Company. • Data source(s) is(are) not configured • Company display media equipment cabling is incomplete including terminations. • Applicable and appropriate electrical power has not been provided for monitors, displays, PCs, media players, video distribution equipment, and other relevant electrical devices requiring power. • Display(s) is/are not mounted on the wall(s), ceiling(s), kiosk(s), fixture(s), etc.. • Network connections are not configured or complete. • Minimum Hardware/Software requirements are not met or ready for use. • Details of the Data information to show on the display media are not available. • Any other lack of readiness relative to materials, cables, displays, infrastructure, activities, or resources that may reasonably impact the project. Customer acknowledges that Company's ability to provide Services and Deliverables in a timely fashion, and at the quoted price, may be affected if Customer does not provide necessary and proper materials and product at the right time, whether supplied by Company or not. Customer may pay additional fixed price fees (or hourly rates, if T&M) for Company's increased costs in providing Services and developing Deliverables resulting from Customer s failure to provide assistance. Resource Allocation Company's business practice is to assign qualified individuals only to signed Quotes, Orders, and SOWs Once an order is processed the appropriate resource(s) will be tentatively scheduled to the project pending receipt of the completed PIQ. Company requires a minimum of two weeks lead-time to schedule any installation Company will try to accommodate any special scheduling request to the degree possible. Assistance In a timely manner, Customer will provide at no cost to Company appropriate assistance, cooperation, information equipment, technical data, computer and telecommunications facilities, programs, files, documentation, test data, sample output, a suitable work environment, and other resources necessary, in Company's reasonable opinion, to enable Company to perform the Services. Customer acknowledges that Company's ability to provide Services and Deliverables in a timely fashion may be affected if Customer does not provide, or provides inadequate assistance. Customer may pay additional fixed price fees (or hourly rates, if T&M) for Company's increased costs in providing Services and developing Deliverables resulting from Customer's failure to provide assistance. Order Changes Any changes to the Services or Deliverables must be mutually agreed upon in writing by the parties and, if specified, in the relevant Sales Order or Statement Of Work, must be made pursuant to Company's change request procedures. Changes may require a change in fees reflecting the inclusion, deletion, or substitution of Services. Completion Criteria Company shall have fulfilled its obligations when any one of the following first occurs. • Company accomplishes the tasks described in the Detailed Project Tasks section, including delivery to Customer of the project deliverables and obtains written approval of Acceptance from the Customer Project Manager or Sponsor, not to be unreasonably withheld. • Company performs the number of hours of services, for Time and Material projects in fulfillment of the tasks of the Project. • The Project is terminated in accordance with the Work Order and the provisions of any applicable Agreement. IT Professional Services Agreement Revised June 2012 Symon Communications, Inc. 20 Acceptance In the event Customer does not respond to formal project hand-offs or Project Approval documents, P rojects are considered complete unless there is written notification to the contrary within 10 business days of initial contact specific to project completion agreement(s). N on-standard Services and Deliverables including Company Maintenance Services The Following Services are not covered by Maintenance and are not standard services provided by Com pany Troubleshooting issues related to non -Company products such as Network issues, Security Policies Permission Issues and 3rd party hardware and software. If these are provided at all, they are billable Professional Services. Demonstration Solutions (Demos) and Proof of Concepts Projects (POC) When solutions are shown for demonstration purposes and/or Proof of Concept, the deliverables and configuration of these solutions are for demonstration and POC purposes only without intent for P roduction deployment. Company makes no warranty that the implemented Company solution will be identical to this Demonstration or POC in structure, content, data elements and functionality Demos and POC designs, features, functionality, and operation are subject to the constraints of the product hardware software network environment, and other related variables of the to -be -implemented solution. Data is subject to Source System availability unless otherwise agreed to in writing. Company will use commercially reasonable efforts to ensure that the purchased solution will closely resemble any Demonstration or POC if desired. The purchased solution may differ from this Demonstration. P roducts or Solutions Purchased with the absence of Professional Services If no Company Professional Services (Application Engineering, Project Management, Training or other related Services) are being purchased pursuant to an order for Product, customer acknowledges that Company will only provide minimal phone assistance with the installation provided by Company Technical S upport — help with one instance of each type of Hardware and client Software (non-SES Server). Any further assistance will incur a charge at Company's standard rates. Services are subject to resource availability. Additionally, if no Company Professional Services are being purchased pursuant to an order for third party product (displays/monitors, brackets, mounts, video distribution equipment, cabling, touch screens media player hardware, etc.), customer acknowledges Company shall offer no assistance and that Company is not responsible for third party installation and configuration of these products. 3. Work Schedule Company Professional Services may be performed both on -site and/or off -site of Customer premises. Company resources typically perform onsite services Monday through Thursday on normal Business Days. PS Resources may either travel Thursday evening or early Friday morning (early enough to put in a productive day). Company resource(s) typically work onsite Monday through Thursday. Fridays are typically spent off -site assimilating information, documenting, designing, or developing, or creating project materials for previous or future activities. On some projects or during certain phases of the project it is necessary that PS resources be on -site Monday through Friday. During these times, it is expected that the PS resource(s) will leave the work site at such a time as to allow them to travel home and arrive at their base city prior to 10:00 pm. Project planning is essential to successful implementations, thus Company typically performs a minimum of 4-8 hours of project planning off -site prior to any installation. IT Professional Services Agreement Revised June 2012 Symon Communications, Inc. 21 4. Fees and Payment Fees and Charges Customer will pay all fees and charges for Services and Deliverables specified in the Sales Order or Statement of Work, and in accordance with the policies stated herein and any relevant PSA. Invoicing and Payment U nless otherwise stated in a relevant PSA, SOW, Quote and/or Order, Fixed Priced Services shall be invoiced upon shipment of the related products. For any other type of Services engagement (T&M Fixed P rice with Milestones, or otherwise), Company shall invoice Customer for the fees accrued on a monthly basis for actual Services performed materials, and T&L. S ervices fees for any given Quote/Order are exclusive of any other fees incurred by other Company Quotes/Orders. Services fees assume contiguous Business Days and implementation. Applicable Travel and Living expenses are in addition to the specified fees. P re -installation project planning services are included in the deliverables and have associated Services fees. Customer shall pay Company for reasonable travel and living expenses in accordance with the Exhibit "A" Quote and Product Summary. All undisputed fees and charges will be due and payable within thirty (30) days of receipt of the invoice. Rate Structure • Company provides Professional Services on a fixed price basis which may or may not include T&L. In certain circumstances projects may be provided on a T&M basis plus T&L. • Standard fixed price fees (or hourly rates, if T&M) apply per the Quote for Services performed within a Business Day • On -site Services are provided at a minimum of 8 hours per day for two Business Days. • Remote Services are provided at a minimum of 3 hours per day. • Non -weekend and non -Holiday Services performed after Business Hours and before Business Day Overnight Hours is performed at a fixed price (or hourly rate, if T&M) of 150% (i.e., time and a half) of normal fees, subject to availability. • Business Day Overnight Hours work is 200% (i.e., double time) of fixed price (or hourly rate, if T&M) fees, subject to availability. • Holiday and weekend work is 200% (i.e., double time) of fixed price (or hourly rate, if T&M) fees, subject to availability Cancellation Policy Customer will incur fees and charges for canceling or postponing per the following for Cancellations inclusive of Customer not being ready: IT Professional Services Agreement Revised June 2012 Symon Communications, Inc. 22 • • If any part of the project implementation or training is canceled or postponed by the customer before 10 business days from the scheduled date, the customer will not be charged any penalties However, re -scheduling will be subject to availability thereafter. • If any part of the project implementation or training is canceled or postponed by the customer between 5 -10 Business days before the scheduled date, the customer will be charged 50% of the total cost of the reserved PS Resource(s) fixed price fees (or hours, if T&M) in addition to any non-refundable/non-usable travel fees The full PS Resource(s) fixed price fees (or hourly rates, if T&M) will apply when rescheduling. • If any part of the project implementation is canceled or postponed by the customer 5 business days or less before the scheduled date, the customer will be charged 75% of the total cost of the reserved PS Resource(s) fixed price fees (or hours if T&M) in addition to any non-refundable/non-usable travel fees. The full PS Resource(s) fixed price fees (or hourly rates, if T&M) will apply when rescheduling. • The maximum per incident cancellation fee shall be the equivalent of three (3) business days of billable services (determined on a pro -rated basis for fixed price projects, or hourly for T&M projects) for the reserved PS resources plus any non-refundable/non-usable travel expenses. Creative Services Professional Services fees exclude creative services for content, including, but not exclusive to, graphics (.bmp, .jpg, .gif png, etc) , videos (.avi, .wmv, .mpeg, AVC, VC1, etc), and Flash (.swf, .flv), and other supported animated graphics and videos, unless explicitly specified in a Statement of Work Scope of Services, Work Order, and/or Sales Order. Customer shall supply Company with the logos and marketing material necessary for the development of digital signage content. Customer shall collaborate with Company's creative services team to complete the production of the Media Kits 5. Hardware/Software Requirements Company Software Performance Consideration and Hardware Requirements Any recommendations regarding personal computers, servers and applications which may be implemented using Company software are based on Company's experience and understanding of Customer s intended use of Company products. As with any computer -based system, individual requirements and performance may vary The optimal configuration of software and hardware may depend on a variety of factors, such as the configuration of the Company software installed outbound message activity, number and complexity of applications monitored, the size and complexity of the user program options selected the amount and rate of delivery of the data to the personal computer where the SES system resides by other computer systems, and many other factors. Please refer to the following web link (URL) for specific selected products and application usage to determine the recommended minimum PC configurations for Company client and server software. Unless otherwise specified, customer is responsible for provision and setup of any network/LAN devices and/or connections. w=,rvw.syrnon.corn/requirements Hardware that does not meet the minimum requirements for the Company software may result in varying degrees of performance degradation. Company Technical support may require bringing hardware platform(s) into compliance with stated specifications before support can be provided. IT Professional Services Agreement Revised June 2012 Symon Communications, Inc. 23 6. Facilities and Infrastructure A productive working environment with ample access to networks, appropriate personnel, computing resources and facilities is essential to meeting project objectives. Customer will provide adequate working space for project activities taking place at their facilities. These activities may include project definition, installation, user orientation and training, solution validation and testing, and deployment assistance. Customer will provide access to all applicable areas including, computer room, data center, or wiring rooms while on -site for installation, testing, training or troubleshooting. Customer is responsible for inspection of all Company products shipped Company requires prompt notification to Company by Customer if there is damage so that replacement products can be sent prior to Business Application Engineer arrival on -site for implementation or training. Customer is responsible for providing a Customer resource to facilitate the completion of the project and act as a single point of contact for the life of the project. Customer is responsible for procuring the Company required hardware in a timeframe that will support the activities associated with the development and production environments. All hardware and software must meet or exceed the minimum requirements for all quoted Company software as outlined in the Quote or any applicable Company provided Statement of Work. Unless otherwise explicitly specified in the Order and/or any applicable SOW, the Customer is responsible for: • Final hardware, network equipment and configuration, client workstation setup, and software purchase. • All lifts and scaffolding when and where appropriate • Providing assistance from facilities and IT representatives while Company resources are on - site for installation, implementation, testing, training, or troubleshooting. • Assisting Company with the installation of Company Software • Carpentry and Construction o All construction projects (Le., wall openings, reinforcement, etc,) for display devices are the responsibility of Customer. Customer shall be responsible for making the wall modifications needed to accommodate any recessed door displays (e.g. cutting holes). Company shall supply the necessary specs and cut sheets and Customer shall be responsible for framing the outside edge of monitor openings to match desired woodwork or metalwork. • o In -wall installation of Display Monitors: The overall size of the mounting box varies depending on the particular display. The cutout opening in the wall shall have adequate material for the display mounting screws. o Providing mounting hardware as well as the resources to mount and secure all Company provided hardware Company provided hardware includes, but is not limited to, SDAs, Wallboards, Flat Panel Displays and CRTs. Providing Proper Environmental Conditions for Computer and AN Equipment o Computer systems used for Company provided software shall be located in a clean, ventilated, climate -controlled environment. Extreme heat and/or unclean conditions IT Professional Services Agreement Revised June 2012 Symon Communications, Inc. 24 will cause severe damage to PCs, and will void any warranty on Company provided computer systems / Media Players. o Note that rack systems have numerous fans for cooling, which will increase noise levels wherever the computer cabinet(s) is placed. We do not advise locating rack - mounted systems near someone's desk or in an office environment. o Ventilation for recessed placement of Displays/Screens is required for heat displacement (See spec sheets for exact measurements). Adequate ventilation is critical when enclosing display monitors in a wall recess, enclosed in millwork, or enclosed in a cabinet. Fresh, cool air must be able to enter the enclosed area from the bottom and exit out the top Airspace around the display monitor is also a consideration. There shall be a minimum of three inches of airspace around a display monitor. o Flat Panel Displays Continual air -flow ventilation required for heat displacement (2"- 4" minimum on all Displays) all around monitor whether recessed in wall, placed in cabinet or framed out). Insufficient ventilation will result in serious damage/destruction of Plasma or large LCDs. o Providing secure locations for all Company provided hardware, software, and associated components including all equipment cabinets or rack space. • Providing Proper Cabling and Associated Equipment: o All cable shall be pulled prior to arrival of the Company's team for set up of the Company provided hardware and software, and connection of the display signal to the plasma monitors, LCDs, or LEDs. o Install of necessary wire and terminations to any applicable installation or deployment of cabling infrastructure. Which includes, but is not limited to LAN/WAN cabling and equipment, twisted pair, RGB, Component Video, DVI, HDMI dark (blank) fiber video, and electrical drops where appropriate. This further includes all wiring from broadcast output devices (including SDAs) (VGA or DVI and Audio UR) o Low Voltage / Low -Skew UTP Video Cabling: A specific type of UTP Cable is required for video distribution and is to be provided in home runs back to Company Media Players. The cabling for all UTP video cabling shall be a low -skew UTP cable. The recommended cable is Belden 7987R for PVC jacketed cabled and Belden 7987P for plenum rated cable Cat5, Cat5e or Cat6 should NOT be used. This cable can be obtained from Anixter International o All live video feeds such as CATV or Satellite must have wire pulled to each Media Player for input as RF. o Each of the display monitors will need a Low -Skew video cable run from the monitor location back to the media player hardware or video distribution point. o The typical maximum distance from the media player to the Display is 600 to 1,200 linear feet. o For hospitality implementations, the guestroom channel video feed shall run from the media player hardware to the in -room provider's head -end equipment where it will connect to a non -Company provided modulator. IT Professional Services Agreement Revised June 2012 Symon Communications, Inc. 25 o A proper Modulator, if needed. A modulator is used for transmitting media player video signal(s) to a distribution system. Customer is responsible for this video distribution. o If coaxial video cabling is specified for any reason, the cable used for all coaxial video cabling is RG6 quad shielded cable. o Company is not responsible for improper cable pulls performed by the Customer, or video distribution to third party systems (such as Guest Room channels) Company system as defined by any applicable Sales Order, Work Order, Scope of Services or Statement Of Work(s). • Providing Proper Electrical Power: o Power sources for media players computers, display monitors; LEDs and LCDs need to be installed prior to installation of any Company provided equipment. o Customer shall supply a duplex power outlet (North America -110V) and the appropriate electrical surge protection for each display Each of the LCD display monitors requires an 110v receptacle (for North America). The power receptacle will be placed in a location near the display and per applicable codes and regulations. • Providing Proper Network Infrastructure: o The server to run SES and media players (SDA'S) require network connections using standard Cat 5 or 6 cabling and a network supporting IP v4. This network connection must be able to access necessary servers, systems, data sources and the Internet. This is for data feeds, event interfaces, applicable content subscriptions and remote access. o Customer shall supply appropriate Internet connection connectivity for Company provided solution. o Customer shall provide applicable infrastructure and environment for the above referenced Hardware/Software requirements. o Connectivity and speed of the network connection between source data and the Company servers and clients. Company clients include, but are not limited to, Design Studio Editors, Design Studio Lite, Data Studio, Media Players, Wallboards, Remote Administration Suites (SES Administrator, Portal Administrator and Composer), Symon Says, InView, and DeskView. If Customer elects to implement Company provided product or Company Provided 3rd Party AudioNisual products on their own: • Company is not responsible for negligent or improper installation. • Customer is responsible for compliance with local, federal, and other applicable codes and regulation compliance. • Company will only support the video output of the Company hardware and software products. If Customer elects to perform their own Site Survey and/or specification of 3rd Party Audio/Visual Products: IT Professional Services Agreement Revised June 2012 Symon Communications, Inc. 26 • Company is not responsible for improper parts, items, or any negligent or improper installation. • Company will only support the video output of the Company hardware and software products. The Company Development Lab at Company premises may be used for certain testing, orientation, training, analysis and/or validation activities where Company and Customer agree that this would benefit the project. This requires that the PS Resource(s) have remote network access to Customer's development, test, and production environments. 7 System Resources The availability of appropriate system resources will be critical to the timely completion of activities that depend on them. The fees for this project do not include or imply inclusion of any platform software/hardware that is not explicitly defined as being provided by Company in this document. Customer will provide adequate test and development system configurations, including prerequisite software, for work taking place at its facilities within the proper timeframes, and be able to handle full data loads to ensure performance requirements are met. Customer will provide Company resources with managed access to databases (both Company specific and source databases), systems, networks and other resources necessary to defining and developing the agreed to solution. This may include system administrator privileges on Company servers and databases. Customer will ensure that the deployment environment for the solution is configured and available in time for deployment activities to proceed on schedule. Any applicable development environment is assumed to be configured and should be available to the project start date Customer will provide test data sets necessary for validating the correct operation of the solution, if necessary. 8. Data and Data System Resources The data quality will be critical to the timely completion of activities that depend on them. This refers to the data being generally free of duplicates or errors. Company is not responsible for correcting data integrity issues originating from the source systems. Customer is responsible for external data system APIs and data sources. All Data source elements for transaction systems data will have appropriate permissions. Additionally, the system data should be well documented. The fees for projects do not include or imply inclusion of any platform software/hardware that is not explicitly defined as being provided by Company in a Sales Order or Statement of Work. All third party software, such as Operating Systems and associated platform updates and components, are the responsibility of Customer to procure and install. Data cleansing and validation of external system data is out of scope unless specified otherwise per an applicable Statement of Work. Company is not responsible for purging, cleaning and/or de -duping data. Company will not be responsible for any Customer data related issues that impact the project discovery, design, development, and deployment planned time constraints Customer will be responsible for addressing the data issues. IT Professional Services Agreement Revised June 2012 Symon Communications, Inc. 27 Company takes no responsibility for the function of any 3rd Party software, and its installation and configuration that may be required subsequent to any Company solutions being implemented. Data refresh rates are pending and dependent on, source system availability, associated CPU power, network infrastructure capabilities, and client PC capabilities/configurations. Regardless of agreed upon specifications, if data systems do not contain or otherwise support business requirements, these requirements or data elements are considered out of scope. Company cannot obtain data that does not exist or cannot be derived through reasonable efforts. Data sources and external systems will maintain static data structures and APIs during projects. If Customer table structures are changed during the development and deployment phases, and re -work is required on behalf of Company to accommodate changes, then a change control process will apply to the effort involved in accommodating for these changes and incorporating them into the project timeline. 9. Materials and Documentation Access to documentation on existing systems databases and business processes relevant to the implementation of Company solutions may be important to making well informed decisions on the design of the solution. It is critical that these materials are readily available to the PS Resource(s). 10. Additional Customer Responsibilities Inspection Validation of shipped items by Company, and complete inspection of packaging and contents therein, for damage or mishandling, and prompt notification to Company so that replacement components can be shipped prior to commencement of on -site work by Company. Security and Backup Procedures Customer shall maintain security, disaster and back-up procedures in accordance with its then current policies. Testing A testing process is highly beneficial to the successful deployment and use of Company solutions Company will work closely with customer to ensure the process is thorough and well understood, and that test cases reflect the requirements agreed upon for the solution. Customer will own the user testing process, and testing of data (including any test scripts). Key Personnel The involvement of the Customer team is essential to rapid progress and the attainment of engagement goals. Customer agrees to provide to the internal project the team that may be specified, or assumed based on the scope of the project at the appropriate the levels of commitment. Customer reserves the right to change their staff without material impact to the project schedule or deliverables. The Customer Project Sponsor will notify the Company Project Manager as soon as possible if a change to either key personnel or level of commitment becomes necessary. IT Professional Services Agreement Revised June 2012 Symon Communications, Inc. 28 11. Project Staffing The following table defines the roles and anticipated staffing requirements for a typical engagement. Skills, source organization and estimated level of commitment have been included to set expectations around the participation that are required of all parties involved in the engagement. Company's business practice is to assign individuals only to signed Agreements and Statements of Work so availability of the right personnel is always a timing issue. Once we have a signed order, we schedule appropriate resources to the project Not all roles listed below are required for all projects. Role & Source Org. • Company Project Manager Role Description • Primary contact for the Customer Project Sponsor. • Responsible for project deliverables, including maintaining the project plan, budget, issues list, change management process, quality management, project communications and risk/scope management • Manage the change control process as described in the Change Review and Control Section if applicable. • Provide sign -off for Company on deliverables. Required Skills • Project leadership experience Expertise in software application development • Relational database expertise • Previous experience with web application architecture, systems integration, and legacy systems • IT Professional Services Agreement Symon Communications, Inc. 29 Revised June 2012 Role & Source Org. • Company A/V Specialist • Company Technical Architect Role Description • A consulting service is provided to customers who need assistance beyond a site survey. The Company A/V specialist offers traditional A/V expertise, but further, has the knowledge of the Company Solution to work on an e ducated level of what the client would need. • Note: For Site Surveys, a contractor should be in attendance at this session for purposes of verifying the e quipment can be installed in the requested locations and that they meet all ADA, OSHA, local and building codes. • The Company A/V specialist assists the client with the "what, when, where and how" specific to digital signage, which is outside the scope of the expected services from a contractor. • Perform systems analysis, design and specifications specific to real- time database consolidation and aggregation. • Program scripts for backend aggregations, calculations and data transformations. • Provide Company solutions domain expertise Required Skills • Strong knowledge of audio/visual technology • Previous involvement on Company implementation projects • Familiarity with Video distribution and networking technology • Strong knowledge of audio/visual technology • Previous involvement on Company implementation projects • A/V, IT, Digital Signage • Strong knowledge of data management IT Professional Services Agreement Symon Communications, Inc. 30 Revised June 2012 Role & Source Org. • Company Creative Content Specialist • Company Solution Developer Role Description • Performs custom content creation, including background images, layouts • Optimizes any existing client content (logos, images, etc.) for u se on Company systems as n eeded • Creative consultation • • • Configure the Company Software Transfer Company technical knowledge to team members Provide input to more technical design efforts Strong working knowledge of modern graphics tools • Creative design skills, ability to gracefully reconcile client branding requirements with creative design • Strong knowledge of standard graphical file formats, and methodologies for optimizing content for Company systems Networking and Windows OS • Proven skills in System Integration, Web Architecture, basic programming, data analysis, scoping, mapping, modeling, and architecture. • Experience in Company Product installation, configuration, and customization. • Training Required Skills • • IT Professional Services Agreement Symon Communications, Inc. 31 Revised June 2012 Role & Source Org. • Customer Project Sponsor • Customer Project Manager • • • • Role Description Overall accountability for ensuring that all project considerations are identified and addressed Assist with project risk identification & management Deliver periodic updates/progress reports. Project champion for the Company Solution • Responsible for working with the Company Architects on day-to- day management of all project deliverables, including maintaining the project plan, budget, issues list, change management process, quality management, project communications and risk/scope management Required Skills • Senior management position in o rganization where system is being deployed • Experience n avigating projects from inception to completion at client's organization • Project leadership experience • Background in application architecture and systems integration Strong knowledge of customer business processes • Expertise in processes and procedures which will impact the implementation • IT Professional Services Agreement Symon Communications, Inc. 32 Revised June 2012 Role & Source Org. • Customer Technical Resources • Customer • System Administrator • Customer Network Administrator Role Description • Work with Company resources to understand and obtain knowledge transfer of the Company applications • Establish overall system design based on business requirements. • Provide technical support and system expertise on source systems • Responsible for providing technical support to the project by means of acquiring/installing n eeded hardware/system software to production e nvironments • • Give Company project resources appropriate level of system access in all required e nvironments Act as the primary contact for any and all network, system, or e nvironment issues • Give Company project resources appropriate level of Network support. Required Skills • • • • • • • • Prior experience on a relational database implementation Strong understanding of data analysis, sourcing, and mapping considerations Network Installation and administration experience Windows, SQL expertise Knowledge of all Source Systems, if data is applicable. Provide input on source system data architecture and database administration Expertise in supporting specific source system(s) including business and technical considerations Trouble -shoot network problems Network installation and administration experience IT Professional Services Agreement Symon Communications, Inc. 33 Revised June 2012 Role & Source Org. • Customer Business Domain Expert(s) Role Description • Responsible to work with Company to document business requirements • Work to resolve any business/ functional issues • Assist in system testing and provide support to end -users for a determined period following implementation • Responsible for input on business process issues (Knowledge of business processes and objectives.) Required Skills • Previous e xperience mapping data requirements to business processes and workflow • Knowledge of data issues, u sage, and requirements • Participate in requirements analysis activities and provide insight on process issues. • Expected to be knowledgeable user of the system 2(:)10 Sylnon Cornmunications Incorporated. All Rights Reserved. IT Professional Services Agreement Symon Communications, Inc. 34 Revised June 2012