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HomeMy WebLinkAboutContract 47297 (2)Ea :y �7 . . i a Sa • 0 _i 1 REctstvw ' pEC 3 2015 or�or�oa�%le.; ii ,,� .1 _I SECRE ). �, This Service Agreement ("Agreement") is made and entered into as of November 23, 2015 ("Effective Date") between City of Fort Worth, Fort Worth, TX ("Customer") and Audio Visual Innovations, Inc. ("Supplier") located at 6301 Benjamin Road, Suite 101, Tampa Florida 33634. mry C RI COMACT Lfl AVIOSPL© ServiceFlex Time 3 Material Service Agreement 1. Applicability of these Terms and Conditions. Except as expressly set forth below or as otherwise mutually agreed to by the parties in writing, these Service Terms and Conditions set forth the terms and conditions pursuant to which Supplier will provide Services to end user customers of Supplier Products ("Customer", "You" or "Your") based upon such Service Programs which Customer has purchased from Supplier. By submitting a purchase order for Services to Supplier, Customer agrees to be bound by these Terms and Conditions. Unless otherwise agreed in writing by Supplier, no other terms and conditions endorsed upon, delivered with or contained in an end user's purchase order, or in any other similar document, will amend, or vary the provisions of these Terms and Conditions. 2. Definitions. In the Terms and Conditions, the following terms shall have the following meanings: 2 1. "Products" means equipment and software generally made available in the marketplace. 2.2. "Manufacturer" means an entity that produces equipment and/or Software. 2.3. "Services" means the Supplier branded services provided under a relevant Service Program. 2 4. "Software" means programs or applications developed, installed or released by the manufacturer or third party integrator to control the function of a device, feature or function. 2.5. "Software Options" means optional functionality or features of Software that may be selected at the time of purchase or at a later time, and for which Supplier or Manufacturer charges separately. 2.6. "i'8111/1" — means Time and Material. 2 7. "(iodate" means Software for which Supplier or the Manufacturer has provided fixes or minor revisions to correct errors or defects in the existing operation of the Software in accordance with the published Product specifications, and which is limited to those updates that Supplier or Manufacturer generally provides to its support Services customers at no charge. Updates do not include Upgrades or Software Options. 2 3. "Unarade" means new releases of the Software which contains enhancements improving the functionality or capabilities of the Software, which Supplier or Manufacturer may make available to its support Services customers. Upgrades do not include Software Options. 3. Service Description. Supplier's ServiceFlex Time and Material (T&M) program is a pre -paid or pre -authorized audio/visual support service which includes remote help desk support, incident management tracking, manufacturer warranty facilitation, on site technician dispatch, replacement parts order and parts fulfillment services for the purpose of audio/visual and video equipment reactive repair. Service Flex - Time & Material Service AgreemeFICIA` RECORIL by: AVI-SPL, Inc. J Page 1 of 14 November 30, 2015 CITY SECRETARY FT. WORTH, TX AVIOSPL' 3.1. Technical Help Desk Supplier's remote help desk is available Monday through Friday from 8:00 am to 5:00 pm local time with in the continental United States excluding Supplier holidays. The help desk is the first point of contact for all customer support inquiries and is available via phone and e-mail. All support requests are logged by the help desk technician or in the case of email automatically logged into the Supplier's case management system. The help desk technician will make every attempt at remote resolution. In the event remote troubleshooting does not resolve the incident and hardware replacement is determined necessary by the Supplier to affect resolution, the help desk technician will provide a quotation for parts and/or labor rate for onsite field services to the requestor. 3.2. Onsite Technical Support Supplier will provide onsite technical support for replacement parts and/or where onsite dispatch is deemed required by the Supplier's help desk. Onsite dispatch is coordinated by the Supplier to ensure field technicians arrive in conjunction with Supplier provided replacement parts. Dispatch of Supplier technician as well as replacement parts orders are subject to requestor approval per occurrence. Where manufacturer parts are available for next business day shipping, Supplier will dispatch the onsite technician to arrive on the same business day of the shipment, providing manufacture delivery timeframe allows the estimated labor hours to perform the replacement. Onsite dispatch is subject to manufacturer parts availability, shipping policies and maybe subject to confirmation of valid payment method. On arrival, Supplier's onsite technician will validate the incident source, inspect Supplier provided replacement parts, install the replacement components and perform testing to ensure the device is returned to an operational state. On successful completion of the repair, Supplier's onsite technician will present a work order to the requestor or Customer site contact for review and approval. Supplier is not responsible for the packaging or disposal of the replace components. 3.3. Parts Replacement and Fulfillment 3.3.1 Non -warranty Parts Replacement: Supplier is able to source replacement products for industry standard audio/visual devices from over 700 manufacturers. Supplier will make best effort attempt to procure replacement or suitable substitute directly from the manufacturer or an authorized distributor. Supplier will not procure replacement parts from non -contracted manufacturers or distributors. Supplier's ability to fulfil replacement parts is subject to manufacturer parts availability outside of a warranty or maintenance contract. Replacement parts provided by the Supplier will be either new parts or parts equivalent in performance to new parts when used with the Product, and are warranted for ninety (90) days from shipment or the remainder of the initial warranty period, whichever is longer. Supplier may, from time to time have the ability to offer stock or returned merchandise at reduced costs to Customer. Supplier initiation of a replacement parts order is subject to requestor approval and maybe subject to confirmation of valid payment method. T&M non -warranty parts replacement applies to any device or component not covered under manufacturer's warranty including consumables. 3.3.2. Warranty Parts Repair / Replacement Some equipment may be repairable or replaced at no charge under the manufacturer's Warranty policy. Labor for remote help desk and onsite installation is subject to Supplier Time & Material fees The Help Desk will assist the customer to arrange return of the defective equipment to the manufacturer for service/replacement. Service Flex - Time & Material Service Agreement Prepared by: AVI-SPL, Inc. I Page 2 of 14 November 30, 2015 AVI SPL' Parts removed from Products for replacement will become the property of Supplier or the Manufacturer, and if replaced by the Customer must be received back to the local Supplier service facility (as the same is listed on the pre -addressed return package provided by Supplier) within ten (10) business days of receipt of the replacement part, or you will be invoiced the full list price for the replaced part. 3.4 Software Updates, Upgrades and Options Software Updates or Upgrades are available based on the manufacturer's distribution and license entitlement policies. Where Software Updates and/or Upgrades are made publically available or available for equipment covered under manufacturer warranty, Supplier will facilitate Updates or Upgrades on a fix or fail basis. That is, to obtain an available Update the customer must call Supplier to report a specific customer product exhibiting a problem, which the Update corrects. Supplier will provide remote configuration support for the Update or Upgrade according to the software record of the registered Product. 3.5 Balance Statements Supplier will provide a monthly ServiceFlex balance statement via e-mail to the Customer authorized contact. Monthly balance statements will include the amount of pre -paid or pre - authorized funds available based on closed T&M support cases. Low balance e-mail notifications will be sent in the event the pre -paid or pre -authorized balance is $500 USD or Tess. 4. Services; Orders. In order to receive Services under a Service Program pursuant to the Terms and Conditions, you must submit a purchase order or valid credit card to Supplier for the initial contract value. Purchase orders must refer to Supplier quote identification number. Supplier will determine the pricing and payment terms associated with any Service Program which you purchase All orders are subject to acceptance by Supplier, and no obligation, including a purchase order, shall be binding on Supplier unless and until such order is accepted by Supplier, or, if earlier, Services are provided to Customer. Please note that only those Products listed on a valid quotation applicable to your purchase order will be covered by Service Programs under these Terms and Conditions Any optional services for a Services Program available to Customers for an additional fee will be invoiced separately with payment terms as specified within such Service Program. No employees of the Customer or its officers, agents, servants, vendors or subvendors who act on behalf of various departments, bodies or agencies are authorized to place orders for goods and/or services without providing approved contract numbers, purchase order numbers, or release numbers issued by the Customer. The only exceptions are Purchasing Card orders and emergencies pursuant to Texas Local Government Code Section 252.022(a)(1), (2), or (3). In the case of emergencies, the Customer's Purchasing Division will place such orders. Acceptance of an order and delivery on the part of the Supplier without an approved contract number, purchase order number, or release number issued by the Customer may result in rejection of delivery, return of goods at the Seller's cost and/or non-payment. 5. Service Period. ServiceFlex T&M service contracts are available on a prepaid or pre -authorized value for a 12-month or 36-month period. Contracts will automatically expire the earlier of the scheduled expiration date or when the pre -paid or pre -authorized value has been exhausted. Customers may elect to apply additional pre- paid or pre -authorized funds to the contract to extend services to the contract expiration date at any time during the term. Repair work on the covered equipment, which was begun prior to the expiration of the agreement, shall be completed by Supplier and subject to the contracted T&M rates. This agreement shall not automatically renew. A new agreement must be signed in order to provide coverage beyond the expiration date of this agreement. Either party may decline to enter into a new agreement. Service Flex - Time & Material Service Agreement Prepared by: AVI-SPL, Inc. + Page 3 of 14 November 30, 2015 AVIaSPL` 6. Service Activation. Service coverage will begin immediately upon receipt of an authorized purchase order or payment in full, if required by Supplier. 7. Service Level Agreement. Supplier will provide an Average Speed of Answer (ASA) of 60 seconds for support calls placed to its help desk Monday through Friday, 8 AM to 5 PM local standard time excluding Supplier published holidays. Supplier will respond to new service requests made via email or web portal within four (4) hours with case assignment notification Monday through Friday, 8 AM to 5 PM local standard time excluding Supplier published holidays. When applicable, Supplier will provide a two business day onsite response pursuant to the Help Desk's determination that a dispatch is required for incident remediation. This service level may be impacted by room availability and the requirement for replacement parts. All onsite activity will be scheduled Monday through Friday, 8 AM to 5 PM local standard time excluding Supplier published holidays. When a case is opened, the Help Desk will classify the case in accordance with the following incident priority classifications: Ei P1: Critical -- System outage equipment or room system fully non-functional P2: Major — System impaired but operational quality or features diminished a P3: Minor — System operational with acceptable quality features are diminished o P4: Informational — End User "How To" inquiry, request for configuration modification 8. Service Program Exclusions. Unless otherwise specified, Service Programs do not cover any of the following: (i) electrical work and / or in-house cabling external to the Product; (ii) repair or replacement of Product resulting from causes external to the Product, including disaster, fire, flood, earthquake, tornado accident, neglect, misuse, vandalism, water, corrosion, power surges, unconditioned or fluctuating power, lightning, customer -provided network, or failure of the installation site to conform to manufacturer specifications; or resulting from use of the Product for other than intended purposes; or resulting from use of the Product with items not provided or approved by Supplier; or resulting from the performance of maintenance or the attempted repair of an item of a Product by persons other than Supplier employees or persons authorized by Supplier; (iii) repair or replacement of Product excluded by or no longer covered by the Product manufacturer's (iv) Services in connection with the relocation of the Product, or the addition or removal of items of equipment or parts, attachments, features, from or to other devices not furnished by Supplier including facilitation of customer spare or loaner equipment, including communications devices, video devices, audio devices, networks or links; (v) Services in connection with computer viruses or conflicts involving software that is not installed or introduced by Supplier including coverage for "OFE" (Owner Furnished Equipment) unless specifically listed as covered equipment or devices not installed by Supplier and not specifically covered under this agreement. 9. Charges and Payment Terms Payment terms are NET 30 Days from the date of invoice. All fees and payments outlined in this agreement are in US Dollars. Pre -paid agreements will be invoiced in full upon execution of the agreement. Pre - Authorized agreements will be invoiced at on customer acceptance of Supplier's work order per event. Service Flex - Time & Material Service Agreement Prepared by: AVI-SPL, Inc. Page 4 of 14 November 30, 2015 AVIOSPL' Travel time is billable at the Time and Material rate schedule from portal to portal. Travel expense including hotel, airfare will be billed to the Customer based on actual cost incurred. 10. Termination Either party may at its option terminate any applicable Service Program in whole or in part for cause: (ij if the other party breaches any material term or condition hereunder or under any applicable Service Program, and fails to remedy such failure within thirty (30) calendar days after receipt of written notice of such default; (ii) in the event that any proceedings are commenced against the other party or such party seeks protection under bankruptcy, insolvency, or other debtor's relief law or (Hi) the other party becomes insolvent or dissolves. Furthermore, Supplier may terminate any applicable Service Program in whole or in part or cause if any person other than a Supplier employee, or designated service representative, alters a Product without Supplier's prior written consent, or in any way renders a Product unsafe (adjustments to a Product made at the direction of Supplier or the Manufacturer or as otherwise intended as set forth in the applicable Product documentation do not constitute alterations for the purposes of this Section). In the event of cancellation due to non-payment, the customer agrees to be liable for all services provided by Supplier up to the date of contract termination. Supplier reserves the right to terminate or modify available Service Programs at any time in its sole discretion; provided, that any such modifications will not affect any Service Programs already ordered by you and accepted by Supplier prior to such modifications except as mutually agreed by both parties. 11. Renewal of Service Programs Continuation of coverage for a contract will be provided uninterrupted if the renewal is purchased prior to the anniversary date of the previous contract Supplier will put forth best effort to provide you with sixty (60) days prior written notice of expiration of the Service Period for each Service Program you purchase that is renewable. Supplier reserves the right to charge you the then -current Time and Material rates for any Services provided to you after the contract expiration or in the event of a zero balance for pre -paid service contracts. Pre -paid contracts with unused balances will be credited to the renewal term by the Supplier. Supplier will not issue refunds for non -renewed contracts with unused funds. 12. Customer Obligations 12.1 Software updates and upgrades are the responsibility of the customer. Assistance may be requested from the Help Desk to gain access to the software or if issues are encountered. Software updates do not mandate an onsite service call. 12 2 Customer is required to assist the Supplier Help Desk technician with the remote diagnosis of the reported problem to help determine the cause of the problem. Parts replacement and onsite service may not become available until the Help Desk is provided the appropriate information or support to diagnose the problem. 12.3 If applicable, you will provide Supplier personnel with access to the Products and adequate working space (including heat, light, ventilation, electric current and outlets) at no charge to Supplier. All Customer environments must be free from all risks to health and safety (except to the extent notified to Supplier in writing and specifically accepted in writing by Supplier). 12.4 If applicable, you will maintain, at your expense, the installation site and provide the necessary utility services for use of the Product in accordance with the Manufacturer's applicable published specifications. Service Flex - Time & Material Service Agreement Prepared by: AVI-SPL, Inc. Page 5 of 14 November 30, 2015 AVISPL' 12 5 You will be responsible for replacing, at your own expense, any and all consumable items used in connection with the Products, including without limitation, bulbs and batteries unless specifically requested per event. 12.6 Equipment Operation and Alteration: The customer must operate the equipment as detailed in the user operations manual provided by the manufacturer with the covered equipment and as trained by AVI-SPL during installation. 12 7 Supplier strongly recommends that you install and use a current, reputable anti -virus program in connection with any PC -based, open -architecture Product, and that you regularly update and run such anti -virus program, especially in connection with the emergence of any new viruses and/or `worms'. Repair or restoration of any Product damaged or `infected' by viruses is not covered under these Terms and Conditions or the Service Programs. 12 8 You are solely responsible for backing up your data. Supplier will not under any circumstances have a duty to back up your data or to restore data that is lost in the course of Supplier's provision of Services, or otherwise. Supplier will not be liable for the loss of your data, whatever the reason for the loss, Including without limitation as a result of Supplier's negligence. The preceding limitation applies to any cause of action, whether based in contract, tort, or any other theory. 13. Intellectual Property Each party shall retain all right, title and interest in and to, and possession of their respective preexisting intellectual property. Furthermore, Supplier shall retain all right, title and interest in and to, and possession of, any know-how, technical information, specifications, documents, ideas; concepts; methods; processes, techniques and inventions developed or created by or on behalf of Supplier relating to Services performed under or in relation to a Service Program. Any intellectual property, know-how, information or documents supplied at any time by one party to the other shall be treated as confidential and covered by the confidentiality undertaking in Section 15 below. 14. Warranty / Limitation of Liability SUPPLIER WARRANTS FOR NINETY (90) DAYS FROM THE PERFORMANCE OF ANY SERVICES BY S UPPLIER PURSUANT TO THESE TERMS AND CONDITIONS THAT SUCH SERVICES SHALL BE P ERFORMED IN A WORKMANLIKE MANNER CONSISTENT WITH GENERALLY ACCEPTED INDUSTRY STANDARDS. SUPPLIER MAKES NO OTHER WARRANTY, EITHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, ANY WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE OR OF MERCHANTABILITY. SUPPLIER MAKES NO WARRANTY THAT OPERATION OF THE PRODUCT SERVICED WILL BE UNINTERRUPTED OR ERROR FREE IN NO EVENT WILL S UPPLIER BE LIABLE FOR ANY DELAY IN FURNISHING SERVICES CUSTOMER MUST REPORT IN WRITING ANY BREACH OF THIS WARRANTY TO SUPPLIER DURING THE ABOVE WARRANTY PERIOD, AND CUSTOMER'S EXCLUSIVE REMEDY AND SUPPLIER'S ENTIRE LIABILITY FOR ANY BREACH OF SUCH WARRANTY SHALL BE TO REPERFORM THE SERVICES, OR IF SUPPLIER IS U NABLE TO RE -PERFORM THE SERVICES AS WARRANTED, CUSTOMER SHALL BE ENTITLED TO RECOVER THE PRORATED FEES PAID TO SUPPLIER FOR THE NONCONFORMING SERVICES. EXCEPT FOR BREACHES OF CONFIDENTIALITY OR INTELLECTUAL PROPERTY IN NO EVENT WILL EITHER PARTY BE LIABLE FOR INCIDENTAL, CONSEQUENTIAL, SPECIAL OR INDIRECT DAMAGES, LOST BUSINESS PROFITS, OR LOSS, DAMAGE OR DESTRUCTION OF DATA, REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE), BREACH OF WARRANTY OR OTHERWISE, EVEN IF SUCH PARTY HAS BEEN ADVISED AS TO THE POSSIBILITY OF SAME EXCEPT FOR BREACHES OF CONFIDENTIALITY OR INDEMNITY OBLIGATIONS, S UPPLIER'S MAXIMUM LIABILITY FOR ALL OTHER DAMAGES WILL BE LIMITED TO (I) ONE (1) YEAR'S SERVICE CHARGES (IN THE CASE OF SERVICE PROGRAMS WITH AN APPLICABLE S ERVICE PERIOD) OR (II) AGGREGATE SERVICE FEES PAYABLE TO SUPPLIER PURSUANT TO THE APPLICABLE SERVICE PROGRAM (IN THE CASE OF SERVICE PROGRAMS WITH NO APPLICABLE SERVICE PERIOD) THIS LIMITATION OF LIABILITY IS CUMULATIVE AND NOT PER Service Flex - Time & Material Service Agreement Prepared by: AVI-SPL, Inc. j Page 6 of 14 November 30, 2015 AVIOSPL® INCIDENT. SOME STATES OR JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF INCIDENTAL OR CONSEQUENTIAL DAMAGES AND IN SUCH EVENT, THE FOREGOING EXCLUSIONS AND LIMITATIONS SHALL ONLY APPLY TO THE EXTENT PERMITTED BY APPLICABLE LAW. NOTWITHSTANDING THE FOREGOING, NOTHING IN THESE TERMS AND CONDITIONS SHALL BE DEEMED TO LIMIT OR EXCLUDE EITHER PARTY'S LIABILITY FOR (I) FRAUD OR FRAUDULENT MISREPRESENTATION OR (II) DEATH OR PERSONAL INJURY TO THE EXTENT THAT IT RESULTS FROM SUCH PARTY'S NEGLIGENCE AND SOLELY TO THE EXTENT REQUIRED BY APPLICABLE LAW. NOTWITHSTANDING THE FOREGOING, NOTHING CONTAINED HEREIN SHALL BE CONSTRUED AS THE CUSTOMER BEING REQUIRED TO ESTABLISH A SINKING FUND OR LEVY A TAX TO MEET THE REQUIREMENTS CONTAINED WITHIN THIS AGEEMENT. 15. Confidentiality Confidential Information Each party (the "Disclosing Party") may from time to time during the Term disclose to the other party (the Recipient') certain information regarding the Disclosing Party's business, including its products, inventions, operations, methodologies, systems, processes, product development plans or intentions, know-how, designs, trade secrets, market opportunities, business or financial affairs, and technical, marketing, financial, employees, planning, and other confidential or proprietary information ("Confidential Information"). Supplier's Confidential Information includes (without limitation) the function and performance of the Products, the terms of this Agreement, and any other information relating to the Products or the sale thereof. Confidential Information includes information disclosed orally, visually, or through any tangible medium. Protection of Confidential Information. Recipient will not use any Confidential Information of the Disclosing Party for any purpose not expressly permitted by these Terms and Conditions or to carry out the Services, and will disclose the Confidential information of the Disclosing Party only to the employees or contractors of Recipient who have a need to know such Confidential Information for purposes of carrying out the Services and who are under a duty of confidentiality no less restrictive than Recipient's duty hereunder. Recipient will protect the Disclosing Party's Confidential Information from unauthorized use, access, or disclosure in the same manner as Recipient protects its own confidential or proprietary information of a similar nature and with no Tess than reasonable care. Residuals. The Recipient shall be free to use for any purpose the residuals resulting from access to or work with the Confidential Information of the Disclosing Party, provided that the Recipient shall not disclose the Confidential Information except as expressly permitted hereunder. The term ` residuals" means information in intangible form, which is retained in memory by persons who have had access to the Confidential Information, including ideas, concepts, know-how or techniques contained therein. The Recipient shall not have any obligation to limit or restrict the assignment of such persons or to pay royalties for any work resulting from the use of residuals. However, this section shall not be deemed to grant to the Recipient a license under the Disclosing Party's copyrights or patents Exceptions. Recipient's obligations with respect to any Confidential Information of the Disclosing Party will terminate if and when Recipient can document that such information: (a) was already lawfully known to Recipient at the time of disclosure by the Disclosing Party; (b) was disclosed to Recipient by a third party who had the right to make such disclosure without any confidentiality restrictions; (c) is, or through no fault of Recipient has become, generally available to the public; or (d) was independently developed by Recipient without access to, or use of, the Disclosing Party's Confidential Information. In addition, Recipient will be allowed to disclose Confidential Information of the Disclosing Party to the extent that such disclosure is (i) approved in advance, in writing by the Disclosing Party, (ii) necessary for Recipient to enforce its rights under these Terms and Conditions in connection with a legal proceeding; or (Hi) required by law or by the order or a court of similar judicial or administrative body, provided that Recipient notifies the Disclosing Party of such required disclosure promptly and in writing and cooperates with the Disclosing Party, at the Disclosing Party's request, in any lawful action to contest or limit the scope of such required disclosure. Service Flex - Time & Material Service Agreement Prepared by: AVI-SPL, Inc. j Page 7 of 14 November 30, 2015 AVI OSPL° 16. Right to Audit The Supplier and Customer agree that until the expiration of three (3) years after the final payment under this contract, the Customer shall have access to and the right to examine any directly pertinent books, documents, digital files, papers and records of the Supplier involving transactions relating to performance under this Contract. Customer shall pay Supplier for reasonable costs of any copying in accordance with the standards set forth in the Texas Administrative Code. Customer shall give Supplier reasonable advance written notice of intended audits, but no less than ten (10) business days. 17. Fiscal Funding Limitation In the event no funds or insufficient funds are appropriated and budgeted in any fiscal period for payments due under this contract, the Customer will immediately notify Supplier of such occurrence and this contract shall be terminated on the last day of the fiscal period for which funds have been appropriated without penalty or expense to the Customer of any kind whatsoever, except to the portions of annual payments herein agreed upon for which funds shall have been appropriated and budgeted or are otherwise available. 18. Dispute Resolution If either Buyer or Seller has a claim, dispute, or other matter in question for breach of duty, obligations, services rendered or any warranty that arises under this Agreement, the parties shall first attempt to resolve the matter through this dispute resolution process. The disputing party shall notify the other party in writing as soon as practicable after discovering the claim, dispute, or breach. The notice shall state the nature of the dispute and list the party's specific reasons for such dispute. Within ten (10) business days of receipt of the notice, both parties shall make a good faith effort, either through email, mail, phone conference, in person meetings, or other reasonable means to resolve any claim, dispute, breach or other matter in question that may arise out of, or in connection with this Agreement. If the parties fail to resolve the dispute within sixty (60) days of the date of receipt of the notice of the dispute, then the parties may submit the matter to non -binding mediation upon written consent of authorized representatives of both parties in accordance with the Industry Arbitration Rules of the American Arbitration Association or other applicable rules governing mediation then in effect. If the parties cannot resolve the dispute through mediation, then either party shall have the right to exercise any and all remedies available under law regarding the dispute. 19. Disability In accordance with the provisions of the Americans With Disabilities Act of 1990 (ADA) Seller warrants that it and any and all of its subvendors will not unlawfully discriminate on the basis of disability in the provision of services to general public, nor in the availability, terms and/or conditions of employment for applicants for employment with, or employees of Supplier or any of its subvendors. Supplier warrants it will fully comply with ADA's provisions and any other applicable federal, state and Local laws concerning disability and will defend, indemnify and hold Customer harmless against any claims or allegations asserted by third parties or subvendors against Customer arising out of Supplier's and/or its subvendor's alleged failure to comply with the above -referenced laws concerning disability discrimination in the performance of this agreement. 20. Public Information Any information submitted to the Customer may be requested by a member of the public under the Texas Public Information Act. See TEX. GOV'T CODE ANN. §§ 552.002, 552 128(c) (West Supp. 2006). If the Customer receives a request for a Supplier's proprietary information, the Supplier listed in the request will be notified and given an opportunity to make arguments to the Texas Attorney General's Office (the "AG") regarding reasons the Supplier believes that its information may not lawfully be released. If Supplier does not make arguments or the AG rejects the arguments Supplier makes, Supplier's information will be released without penalty to the Customer. Service Flex - Time & Material Service Agreement Prepared by: AVI-SPL, Inc. ( Page 8 of 14 November 30, 2015 AVI OSPL' 21. immigration Nationality Act The Customer actively supports the Immigration & Nationality Act (INA) which includes provisions addressing employment eligibility, employment verification, and nondiscrimination. Supplier shall verify the identity and employment eligibility of all employees who perform work under this Agreement. Supplier shall complete the Employment Eligibility Verification Form (1-9), maintain photocopies of all supporting employment eligibility and identity documentation for all employees, and upon request, provide Supplier with copies of all 1-9 forms and supporting eligibility documentation for each employee who performs work under this Agreement. Supplier shall establish appropriate procedures and controls so that no services will be performed by any worker who is not legally eligible to perform such services. Customer shall have the right to immediately terminate this Agreement for violations of this provision by Supplier. 22. Network Access The Customer owns and operates a computing environment and network (collectively the "Network"). If Supplier requires access, whether onsite or remote, to the Customer's network to provide services hereunder, and the Supplier is required to utilize the Internet, Intranet, email, Customer database, or other network application, Supplier shall separately execute the Customer's Network Access Agreement prior to providing such services. A copy of the Customer's standard Network Access Agreement will be provided upon request. 23. Independent Vendor Supplier shall operate hereunder as an independent vendor and not as an officer, agent, servant or employee of Customer. Supplier shall have exclusive control of, and the exclusive right to control, the details of its operations hereunder, and all persons performing same, and shall be solely responsible for the acts and omissions of its officers, agents, employees, vendors and sub -vendors. The doctrine of respondeat superior shall not apply as between Customer and Supplier, its officers, agents, emploVees, vendors and subvendors. Nothing herein shall be construed as creating a partnership or joint enterprise between Customer and Supplier, its officers, agents, employees, vendors and subvendors. 24. Force Majeure Except for the obligation to make timely payments, neither party will be liable to the other for delays or failures to perform occasioned by causes beyond its reasonable control. Such acts or events shall include but not be limited to, acts of God, civil or military authority, civil disturbance, riot, fire, strikes, lockouts or slowdowns, factory or labor conditions, inability to obtain necessary labor, materials or manufacturing facilities, delayed issuance of export control licenses. In the event of such delays or failures to perform, any dates or times by which Supplier is otherwise scheduled to perform shall be extended automatically for a period of time equal in duration to the additional time required because of the delay or failure to perform. Each of the parties shall promptly inform the other of any event of force majeure, its expected duration and cessation, respectively. 25. General Except as otherwise set forth in these Terms and Conditions, these Terms and Conditions may only be modified by a written agreement duly signed by authorized representatives of both parties, and variance from or addition to the provisions of these Terms and Conditions in any order or other written notification will be of no effect. Any notices required or permitted to be given hereunder shall be in writing and effective when received by a party at the address as the receiving party has last notified to the other party by prior written notice. In the case of Supplier such address, unless otherwise notified in writing, shall be as follows: Service Flex - Time & Material Service Agreement Prepared by: AVI-SPL, Inc. I Page 9 of 14 November 30, 2015 AVI SPL° Supplier, Inc. Attn Executive Vice President 6301 Benjamin Road, Suite 101 Tampa, Florida 33634 If any provision of these Terms and Conditions shall be held to be invalid, illegal, or unenforceable, the remaining terms of these Terms and Conditions shall in no way be affected or impaired. The waiver by either party of a breach of any provision of these Terms and Conditions shall not be construed as a waiver of any subsequent breach. You may not assign any or all of your rights or obligations under these Terms and Conditions including by purchase, merger or operation of law, without the prior written consent of Supplier, which consent shall not be unreasonably withheld. Any attempted assignment or transfer in violation of this provision shall be null and void. Supplier may assign its rights and obligations under these Terms and Conditions without prior written consent or notice. In performing the Services, Supplier shall be acting as an independent sub -contractor and neither Supplier nor its personnel or representatives shall be deemed to be your agents or employees. Customer may not assign nor transfer its rights, under the Term and Conditions or a Service Program, by operation of law or otherwise, without the prior written consent of Supplier. Supplier's affiliates may participate in Supplier's performance under these Terms and Conditions and a Service Program, and Supplier may also sub- contract its obligations under, these Terms and Conditions and a Service Program provided that Supplier remains liable for the performance of its affiliates and/or sub -contractors in respect thereof. Same as expressly provided, no term or provision of these Terms and Conditions or a Service Program shall be enforceable by a third party (being any person other than the parties and their permitted successors and assignees). The Customer acknowledges that Supplier has trained personnel who perform Services and has made an investment in such personnel. Therefore, at no time during the term of a Service Program or for one (1) year thereafter, will the Customer directly or indirectly either offer employment to or hire any Supplier employees who perform Services on behalf of Supplier without Supplier's express prior written consent. In performing the Services, Supplier shall be deemed to be an independent contractor and its personnel and representatives shall not act as nor be Customer's agents or employees. Supplier shall have complete charge and responsibility for personnel employed or engaged by Supplier. Upon any expiration or termination of these Terms and Conditions, Sections 13 (Intellectual Property) and 14 (Warranty/Limitation of Liability) shall survive. These Terms and Conditions may have been translated into various languages for the convenience of Supplier's Customers. While the translation is correct to the best of Supplier's knowledge, Supplier is not responsible or liable in the event of an inaccuracy. English is the controlling language of these Terms and Conditions, and any translation has been prepared for you as a courtesy only. In the event of a conflict between the English -language version of these Terms and Conditions and a version that has been translated into another language, the English -language version of these Terms and Conditions shall control. These Terms and Conditions and any contract for a Service Program shall be governed by the laws of the State of Texas, and any disputes will be subject to the exclusive jurisdiction of the state courts located in Tarrant County, Texas or in the United States District Court for the Northern District of Texas, Fort Worth Division. The U.N. Convention on Contracts for the International Sale of Goods does not apply. Service Flex - Time & Material Service Agreement Prepared by: AVI-SPL, Inc. Page 10 of 14 November 30, 2015 AVISPL° UNLESS OTHERWISE EXPRESSLY AGREED IN A SIGNED WRITING BY THE PARTIES IN ACCORDANCE HEREWITH, THESE TERMS AND CONDITIONS, TOGETHER WITH ANY APPLICABLE SERVICE PROGRAM, ARE THE COMPLETE AND EXCLUSIVE STATEMENT OF THE AGREEMENT OF TERMS AND CONDITIONS BETWEEN THE PARTIES, SUPERSEDING ALL PROPOSALS OR PRIOR TERMS AND CONDITIONS, AGREEMENTS OR COMMUNICATIONS, ORAL OR WRITTEN, I EN, BETWEEN THE PARTIES RELATING TO THE SUBJECT MATTER HEREOF. HEREBY ACKNOWLEDGE THAT I HAVE READ, UNDERSTAND AND AGREE TO ALL OF THE DESCRIPTION OF SERVICES, STATEMENT OF COVERAGE, INCLUDING THE TERMS AND CONDITIONS CONTAINED IN THE SUPPLIER SERVICE TERMS AND CONDITIONS AND ACCEPT, UNDERSTAND AND AGREE TO THE CHARGES FOR SUCH SERVICE LISTED OR REFERENCED IN ATTACHMENT A. I ALSO ACKNOWLEDGE THAT I AM AUTHORIZED BY THE CUSTOMER TO ORDER THE SERVICE AS LISTED WITHIN THIS AGREEMENT. Customer Signature: Print Name: Title: Company: Date: Supplier Signature: Print Name: Assistant City Manager City of Fort Worth Christiairri Title: Si-. Account Manager Company: Audio Visual Innovations, Inc. Date: 11/30/2015 • APPROXEQ AS TO FOR j AND ;COMM - • I a -I"' 7:1 C; I NO DASEC R `}V. i11111W • eeiz Allison Tidwell, A ssi scant to R� (4 � � t hwz OFFICIAL RECORD CITY SECRETARY FT. WORTH, TX Service Flex - Time & Material Service Agreement Prepared by: AVI-SPL, Inc. I Page 11 of 14 November 30, 2015 AVIeSPL' ATTACHMENT A: Time and Materials Rate Schedule Contract Customer Rate Schedule � Service I Time & Material Standard Business Hours I Time & Material Weekend I Time & Material — AVI-SPL Holiday 7 2 hour minimum billing for onsite service 1 hour minimum billing for phone support Hourly Rate $120 $180 $240 Standard Business Hours: Monday through Friday 8:00 am to 5:00 local time Contract rates apply with any active Customer Care or T&M Note to Exceed/Service Flex agreement. Non contracted rates will apply on non -renewal of contract Travel: Hourly rates apply portal to portal (excludes airfare) Rates are valid in the continental US only Non -contract Customer Rate Schedule Service I Time & Material — Standard Business Hours I Time & Material — Weekend Time & Material — AVI-SPL Holiday Service Flex - Time & Material Service Agreement Hourly Rate $140 $210 $280 Prepared by: AVI-SPL, Inc. j Page 12 of 14 November 30, 2015 AVIOSPL' 26. A T T ACHRII NT R: Service Flex Service Options &t Covered Equipment ServiceFlex Program Options: © Tern: Nov 23, 2015 — Nov 23, 2016 o Contract Amount: Not to Exceed $10,000 o Contract Type: 1 1 Pre -Paid IX1 Pre -Authorized Amount Location City of Fort Worth, City Hall Fort Worth, TX Room/Site Name Council Chambers, pre -Council Chambers, Broadcast Control Rooms A and B Service Flex - Time & Material Service Agreement Covered Equipment Description ProAV equipment associated with Job Orders: 2001-14- 46495; 2001-12-26193; 2001-09-08659 i Prepared by: AVI-SPL, Inc. I Page 13 of 14 November 30, 2015 AVI SPLe ******* This page blank intentionally '***'* Service Flex - Time & Material Service Agreement Prepared by: AVI-SPL, inc. j Page 14 of 14 November 30, 2015