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HomeMy WebLinkAboutContract 30006 CITY SECRETARY CONTRACT NO. WL EXECUTE IN DUPLICATE wireless" ARCH WIRELESS OPERATING COMPANY,INC. MAJOR ACCOUNTS WIRELESS COMMUNICATION SERVICES AGREEMENT THIS MAJOR ACCOUNTS WIRELESS COMMUNICATION SERVICES AGREEMENT (the "Agreement") is made and effective this _1_ day of May_ 200_4_ by and between Arch Wireless Operating Company, Inc. ("Arch Wireless") and City of Fort Worth ("Customer"). WHEREAS, Arch Wireless is a provider of wireless messaging and related services (the "Services'') and wireless messaging equipment(the "E'guipmene�; WHEREAS, Customer desires to acquire Services and Equipment from Arch Wireless and Arch Wireless desires to provide Services and Equipment to Customer. NOW, THEREFORE, for good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the parties agree as follows: 1) PROVISION OF SERVICES AND EQUIPMENT. Arch Wireless agrees to provide to Customer, and Customer agrees to obtain from Arch Wireless, Service and Equipment for use by Customer's employees, or other third parties as specifically permitted by Arch Wireless herein (collectively, the "Subscribers''), in accordance with the terms and conditions of this Agreement. The scope of Services and Equipment, and the charges therefor, are set forth on Exhibit A which is attached hereto and made a part hereof. Any new or additional services and equipment not listed on Exhibit A which may be requested by Customer and provided by Arch Wireless at any time hereafter will be subject to the terms and conditions of this Agreement and an amended Exhibit A. Provision of Services and Equipment are subject to availability and applicable regulatory requirements. 2) TERM OF AGREEMENT. This Agreement shall be effective for a period of one (1) year, beginning with the above date (the"Initial Term") with options to renew the agreement for the next two (2) consecutive years. The Agreement shall be automatically renewed for like periods unless either party gives notice to the other of its intention not to renew. Such notice shall be given at least ninety (90) days before the expiration of the Initial Term or any subsequent renewal term. Subject to June 27,2003 Version I Section 12 below, the "term" of this Agreement will consist of the Initial Term, plus all renewal terms. 3) USE OF SERVICES AND EQUIPMENT BY CUSTOMER. Arch Wireless provides the Services through authority granted to it by the Federal Communications Commission (the "FCC . The use and provision of the Services and Equipment are subject to the rules and regulations of the FCC and applicable federal, state and local regulatory authorities in effect during the term hereof,and Customer agrees to comply with all of such laws, and with such reasonable conditions as Arch Wireless may require from time to time, in connection with its use of the Services and Equipment under this Agreement. Customer may not use, nor permit any of its Subscribers to use, the Services and/or Equipment for promotional purposes or for resale. Neither Customer nor any Subscriber may transfer any of the Services or Equipment without the prior written approval of Arch Wireless. Customer and its Subscribers may only use the Services and Equipment for lawful purposes and for the purposes intended. Arch Wireless will designate, coordinate and assign for Customer and the Subscribers the capcodes, personal identification numbers, email addresses and telephone numbers (collectively, the "Numbers") for all Equipment using Services provided by Arch Wireless. Neither Customer nor the Subscribers shall obtain any ownership interest in, or exclusive right to use, such Numbers. Arch Wireless reserves the right to assign, designate, reassign or change Numbers as reasonably necessary in the conduct of its business. 4) PURCHASE OF EQUIPMENT. If Customer purchases any Equipment from Arch Wireless hereunder,the following terms and conditions shall apply: a) Selection and Availability of Equipment Customer shall be responsible for the selection of models of Equipment in accordance with its desired use and functionality and shall be responsible for payment with respect to all Equipment ordered by any of its Subscribers. Arch Wireless may provide new or refurbished Equipment to Customer. The models of Equipment listed on Exhibit A, as the same may be amended from time to time, are subject to availability from the manufacturer,and may be discontinued or replaced by other models at any time. b) Title to the Equipment, Risk of Loss. Upon receipt of payment in full for the Equipment, title to such Equipment shall pass to Customer free and clear of any lien or encumbrances arising out of Arch Wireless's ownership thereof. Customer assumes full responsibility for the risk of loss or damage upon delivery of the Equipment to Customer, and no loss, theft or damage to the Equipment thereafter shall relieve Customer of its obligations to pay any fees and charges due to Arch Wireless with respect to the purchase of such Equipment. Arch Wireless shall retain a purchase money security interest in Equipment in any amount of the unpaid balance of the purchase price until such Equipment has been paid in full. tt:�4-. 4of tial June 27,2003 Version " 2 c) Warranty and Repair (i) Items of Equipment shall be deemed to have been delivered to Customer in good working order unless Customer returns the same to Arch Wireless for exchange or repair within thirty (30) days after delivery. (ii) In the event Customer elects to purchase maintenance protection ("Maintcnanccl�, Arch Wireless shall maintain such Customer owned Equipment. Arch Wireless shall, at its discretion, repair or replace (with a substantially similar unit) such Equipment at no additional cost to Customer that Arch Wireless determines to be defective. The Maintenance charges, including the applicable deductibles, if any, are set forth on Exhibit A. However, in the event that Equipment covered by Maintenance is damaged while in Customer's possession, or is returned to Arch Wireless with parts missing,Arch Wireless shall charge Customer for such repair or replacement of such Equipment (including, without limitation, for all replacement parts, repair charges and handling fees in effect at such time). (iii) In the event Customer opts not to purchase Maintenance,or such Maintenance is not available to Customer,Arch Wireless shall, at its discretion,repair or replace Customer owned Equipment at the fees and expenses in effect at the time of such repair or replacement. Arch Wireless shall have the right to charge Customer for all replacement parts and handling and administrative charges in effect at such time. Arch Wireless shall use commercially reasonable efforts to pass through manufacturers'warranties,if any, to Customer, to the extent permitted by such manufacturer. d) Encryption Arch Wireless reserves the right to sell Equipment that has been manufactured with passwords and encryption for security purposes. Such encryption or passwords may be used to disable the Equipment in the event of misuse of Services or the refrequencing of the Equipment on the messaging network of another carrier. 5) LEASE OF EQUIPMENT.If Customer leases any Equipment from Arch Wireless hereunder, the following terms and conditions shall apply: a) Selection and Availability of Equipment Customer shall be responsible for the selection of models of Equipment in accordance with its desired use and functionality and shall be responsible for payment with respect to all Equipment ordered by any of its Subscribers. Arch Wireless may provide new or refurbished Equipment to Customer. The models of Equipment listed on Exhibit A, as the same may be amended from time to time, are subject to availability from the manufacturer, and may be discontinued or replaced by other models at any time. b) Title to the Equipment; Risk of Loss. Title to all Equipment leased by Arch Wireless to Customer shall remain in Arch Wireless. Promptly(not to exceed 10 days) upon the expiration or termination of this Agreement, or such time as the Equipment is no longer in use by Customer, Customer shall return (at its sole cost and expense) all such leased Equipment to Arch Wireless in accordance with Arch Wireless's shipping instructions. Customer shall be responsible for the safekeeping of all such Equipment and shall return same to Arch Wireless in substantially the same condition as it was received by Customer, reasonable wear and tear excepted. Arch Wireless will continue to charge Customer the monthly lease and Services charges for each item of Equipment until it is returned to Arch Wireless in good condition or Customer has paid the full replacement cost therefor. Notwithstanding the foregoing, upon the expiration or earlier termination of this Agreement, in the event Customer has not returned Equipment by the sixtieth (60th) day thereafter, June 27,2003 Version ,19M SKIM,! dentin! 4 ^ Customer shall pay Arch Wireless the full replacement cost of such Equipment. Subject to the remainder of this Section 5(b), in the event Customer returns Equipment that is damaged or has missing parts, Arch Wireless shall charge Customer for all replacement parts and repairs charges in effect at such time. Customer shall be responsible for the replacement cost set forth on Exhibit A for any lost or stolen Equipment, or Equipment which is damaged beyond repair, unless Customer has purchased the Loss Protection Plan described on Exhibit A. Arch Wireless shall invoice Customer for Services and the monthly lease charges with respect to each unit of Equipment until Customer either: (i) provides Arch Wireless with written notice of any lost or stolen Equipment, or Equipment which is damaged beyond repair, and makes a claim under the Loss Protection Plan,if Customer has elected to participate in such plan,or(ii) pays Arch Wireless the replacement cost set forth on Exhibit A. c) Warranty and Repair. Customer may return for exchange any item of leased Equipment that is defective at any time during the term of this Agreement,and Arch Wireless,at its option,shall repair such Equipment or replace it with a substantially similar Equipment. Subject to Section 5(b) above pertaining to Equipment that has been damaged beyond repair, in the event such leased Equipment is damaged while in Customer's possession, or is returned to Arch Wireless with parts missing, Arch Wireless shall charge Customer for such repair or replacement of such Equipment (including, without limitation, for all replacement parts,repair charges and handling fees in effect at such time). d) Encryption Arch Wireless reserves the right to lease Equipment that has been manufactured with passwords and encryption for security purposes. Such encryption or passwords may be used to disable the Equipment in the event of misuse of Services or the refrequencing of the Equipment on the messaging network of another carrier. 6) STANDARD OF PERFORMANCE.Arch Wireless shall provide Services consistent with the normal and reasonable standards of the wireless messaging industry. Arch Wireless shall promptly investigate any complaints made by Customer and shall take such steps as are commercially reasonable and necessary to correct any deficiency in the Service. Adjustments for Service interruptions shall be made in accordance with Section 10(e) hereof. 7) WARRANTY DISCLAIMER. Telecommunications services, including the Services, may be adversely affected by various conditions, including but not limited to electrical interference, terrain, weather,Acts of God or governmental authority(including limitations on the availability of telephone numbers or spectrum), equipment failure, user error and the failure of any satellite or other connecting telecommunications facilities. Periodic service interruptions may be necessary to perform maintenance on the networks and facilities. Arch Wireless, therefore cannot and does not guarantee the availability of the Services at all times and under all circumstances, nor that all messages will be received in a timely manner. Wireless messaging services are not secure methods of transmission,and Arch Wireless cannot and does not guarantee against improper actions of third parties that interfere with the privacy of messages or the integrity of the Services. Services related to databases and information content may contain inaccuracies from time to time that occur at the source or in the transmission process (including but not limited to errors in stock quotations,sports results and news reports), and Arch Wireless cannot and does not guarantee the accuracy or availability of such Services. Arch Wireless's prices for the Services do not include insurance for these inherent risks. THE LIMITED WARRANTIES AND REMEDIES CONTAINED HEREIN ARE THE EXCLUSIVE WARRANTIES AND REMEDIES OFFERED BY ARCH WIRELESS.ARCH WIRELESS MAKES NO OTHER WARRANTIES, EXPRESS `gonj7ttra! June 27,2003 Version 4 Y STATUTORY, CONCERNING THE SERVICE, THE EQUIPMENT OR ITS FACILITIES, NETWORK OR SYSTEM, INCLUDING, WITHOUT LIMITATION, WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR USE OR PURPOSE,WHICH ARCH WIRELESS SPECIFICALLY DISCLAIMS.If any court finds any such warranty to exist, Arch Wireless's liability for any imputed breach thereof shall not exceed the proportionate charges to Customer during the month in which such imputed breach occurs. 8) LIMITATION ON LIABILITY. EXCEPT FOR THE ADJUSTMENTS DESCRIBED IN SECTION 10(e) BELOW, NEITHER ARCH WIRELESS NOR ANY THIRD PARTY PROVIDER THAT ARCH WIRELESS HAS EMPLOYED TO PROVIDE SERVICES OR EQUIPMENT HEREUNDER SHALL BE LIABLE FOR ANY LOSS OR DAMAGE WHATSOEVER RESULTING FROM USE OF THE SERVICES AND EQUIPMENT BY CUSTOMER AND ITS SUBSCRIBERS. NOTWITHSTANDING ANY PROVISION TO THE CONTRARY CONTAINED HEREIN,NEITHER PARTY SHALL BE LIABLE TO THE OTHER PARTY FOR ANY INDIRECT, SPECIAL, INCIDENTAL OR CONSEQUENTIAL LOSS OR DAMAGES OF ANY DESCRIPTION, REGARDLESS OF THE CAUSE THEREFOR, INCLUDING, WITHOUT LIMITATION, ANY ACTION ARISING IN TORT, CONTRACT OR OTHERWISE EVEN IF THE PARTY KNEW OR HAD BEEN ADVISED THEREOF. 9) ALTERNATE SERVICE PROVIDER. For those locations where Arch Wireless (or any affiliate) does not maintain or operate messaging facilities that can meet Customer's reasonable requirements (the "Locational'), Arch Wireless shall use commercially reasonable efforts to arrange for Services through one of its preferred vendors. In such event, billing for all Services shall continue to be made through Arch Wireless at the rates for such preferred vendors as set forth ot-Exhibit A. 10) BILLING, PAYMENT AND BILLING DISPUTES. a) Prices. Customer shall pay Arch Wireless for Services and Equipment on behalf of itself and all of its Subscribers in accordance with the applicable rates set forth on Exhibit A. At any time, and from time to tune, after the Initial Term Arch Wireless may increase the prices set forth on Exhibit A by providing Customer not less than thirty (30) days advanced written notice. The Equipment charges set forth on Exhibit A may be increased at any time during the term of this Agreement in the event of a manufacturer price increase. b) Taxes; Other Pass-Through Charges. Unless otherwise specifically set forth therein, the rates set forth on Exhibit A do not include: (i) taxes or similar charges imposed by any governmental agency, (ii) any charges passed on to customers by reason of contributions Arch Wireless is required to make to any Universal Service Fund (or any other regulatory fees and related charges), or other surcharge by any government agency or (iii) the fees and charges associated with the administration thereof. Customer will be responsible for paying any sales, license and use taxes, fees (including, without limitation, Universal Service Fund charges), or assessments levied by any local, state or federal government or governmental agency with respect to its purchase or lease of Services and Equipment under this Agreement. Notwithstanding anything to the contrary contained herein, Arch Wireless will have the right at any time, including during the Initial Term of this Agreement, to pass through and invoice to Customer any amounts imposed by third parties such as governmental agencies, telecommunications carriers or vendors that have the effect of increasing Arch Wireless's costs of providing Services and/or Equipment to Customer. June 27,2003 Version � 'n iJ�l 5 c) Payment Terms. Fees and charges for recurring Services, Equipment leasing and Equipment installment purchases (plus any applicable taxes, Universal Service Fund charges and sums carried forward)will be invoiced to Customer monthly in advance. Overcalls and other non-recurring fees,if any, for the month shall appear on the subsequent month's invoice. All Equipment purchases (other than installment purchases) will be invoiced upon delivery and will be due on receipt. Customer shall make payment within thirty (30) days after the date of the invoice. Balances which remain unpaid for more than thirty (30) days shall also bear interest at the rate of one and one-half percent (or the highest lawful rate, if lower) per month beginning with the date of the invoice in which the amount was first billed to Customer. Arch Wireless may temporarily suspend or permanently terminate the Services to Customer and Subscribers if Customer does not pay invoices within such thirty (30) day period. Customer agrees to reimburse Arch Wireless for any charges, costs and expenses (including attorneys fees and expenses) incurred by Arch Wireless in collecting any fees or charges described in this Agreement. d) Disputed Invoices. If Customer wishes to contest an Arch Wireless invoice, Customer will give written notice to Arch Wireless within ninety (90) days after the date of each such invoice, setting forth the amount in dispute and the reasons therefor (a "Dispute Notice"); provided, however, that Customer may not withhold any amounts from payment during such dispute. If the dispute is resolved in Customer's favor, a credit in the amount of any overcharge will be made to Customer's account. All invoices for which a Dispute Notice is not delivered to Arch Wireless within the time period set forth in this Section 10(d) shall be deemed conclusively accepted and all of Customer's claims deemed waived. e) Credit For Service Interruption In the event that Service is interrupted, subject to Section 8, Customer's sole and exclusive remedy shall be the pro rata adjustment to the fixed monthly charges for Service of the affected Equipment(an "Adjustment'). Notwithstanding the foregoing, an Adjustment shall only be made (i) for interruptions of more than thirty-six (36) consecutive hours in duration and (ii) from the time Arch Wireless receives notice from Customer of such interruption until the termination of such interruption. Such notice may be given by telephone and confirmed by facsimile transmission.Arch Wireless shall not be obligated to make an Adjustment in the event that the interruption is caused by (i) Customer, Subscriber or any person using Customer's Equipment, including, among other things, (a) failure to comply with the Equipment's operating instructions or (b) any breach hereunder, (ii) any act or event beyond the reasonable control of Arch Wireless (a Force Majeure event as described in Section 16), (iii) activities reasonably necessary or appropriate for the proper or improved operations of the Arch Wireless, (iv) the Equipment,or(v) signal or coverage limitations. 11) ARCH WIRELESS'S OPERATING PROCEDURES. Service shall be provided in compliance with the Operating Procedures attached hereto as Exhibit B, which are attached hereto and incorporated herein. Customer acknowledges that it has read and agrees to comply with the Operating Procedures. 12) EVENTS OF DEFAULT;TERMINATION. a) Termination after the Initial Term. Either party may terminate this Agreement at any time after the Initial Term for any reason or no reason in accordance with Sections 2 and 14(a) hereof. b) Diminution of Units in Service. `Ate June 27,2003 Version i = (i) In the event that the units in service for Customer decreases from the maximum units Customer had in service at any time during the term of this Agreement by an amount equal to fifteen (15%) or more (each unit in excess of such 15% threshold,a "Diminished UnY'), Customer shall pay each month during the remainder of the term of this Agreement for each Diminished Unit an amount equal to the average monthly per unit charges invoiced by Arch Wireless to Customer during the term hereof and prior to such month ("Diminution in Service Fee"). Such Diminution in Service Fee, if any, shall be invoiced each month and shall be imposed only to the extent of Customer's Diminished Units during such applicable month. (ii) Arch Wireless shall have the right to suspend Services, without penalty to Arch Wireless, to Customer's remaining units in service, until Arch Wireless receives payment in accordance with subsection (i) above. c) Events of Default of Customer. Any of the events described below will be considered an event of default of Customer: (i) Nonpayment. Failure by Customer to pay all amounts due Arch Wireless under this Agreement when due. (ii) Misuse of Services. Customer or any Subscriber has used the Services in violation of Section 3 above. (iii) Other Breaches. Customer or any Subscriber has breached any material term or condition of this Agreement (other than as set forth in Sections 12(c)(i) and (ii) above) and such breach is not curable or if curable, has not been cured within thirty (30) days after written notice of such breach (specifying in reasonable detail the nature of such brea(h) from Arch Wireless. d) Events of Default of Arch Wireless. Arch Wireless will be in default of this Agreement if it has breached any material term or condition of this Agreement and such breach is not curable or if curable, has not been cured within thirty (30)days after written notice of such breach (specifying in reasonable detail the nature of such breach) from Customer. Arch Wireless will not be considered to be in default if it is unable to provide the Services or Equipment by reason of force majeure or under any other circumstance identified in Section 7. e) Termination for Default Either party may send a notice of termination to the other, which notice will specify the event of default and the effective date of the termination. The effective date of such termination will be a date which is not sooner than the last day of the cure period with respect to any event of default as to which this Agreement contains a cure period. With respect to any monetary default, the termination notice will be effective no sooner than five (5) calendar days after the date of such notice;provided, however, that if Customer is provided with a notice of default for non-payment twice during the term of this Agreement, then Arch Wireless shall have the right to terminate this Agreement, without further notice or any right to cure, immediately upon the occurrence of a third or any subsequent failure to pay when due any amount which is owing under this Agreement. With respect to any default under Section 12(c)(ii) above, Arch Wireless may terminate this Agreement, or the Services of the affected Subscribers,immediately, and without notice or opportunity to cure. 13) NATURE OF RELATIONSHIP.Nothing contained in this Agreement shall constitute either party as agent and principal,partner,joint venture or employer and employee of the other. Moreover, June 27,2003 Versiona`��: 0 neither party has the authority to act on behalf of the other or otherwise bind the other in any manner. CWLdentia June 27,2003 Version 8 ti 14) NOTICES. a) Any notice,request,instruction,legal process,or other document, other than with respect to the delivery of invoices and/or payments of invoices or as otherwise set forth in Section 10(e), to be given or made hereunder shall be served in the following manner: If given to Arch Wireless,notice shall be addressed to Arch Wireless at the following address: Arch Wireless with a copy to: [Adam Hochfelder Arch Wireless 3100 Premier Dr. #205 1800 West Park Drive,Suite 250 Irving TX.,75063 Westborough,MA 01581 Attn: Legal Department And Arch Wireless 1800 West Park Drive,Suite 250 Westborough,MA 01581 Attention: Director of Advanced Products Marketing If given to Customer, notice shall be addressed to Customer at the following address: Customer CITY OF FORT WORTH IT SOLUTIONS 1000 THROCKMORTON FORT WORTH TX 76102 All such notices may be served by personal delivery,registered or certified U.S. mail or by any regular delivery service that provides receipt and evidence of delivery. Notices shall be deemed given two (2) business days after the date of registration or certification with the U.S. Postal Service or on the date of actual delivery as stated on the receipt of delivery. Either party may change its address for notice purposes in the manner provided in this Agreement. b) All invoices shall be addressed to Customer at the folbuTing address: Customer CITY OF FORT WORTH IT SOLUTIONS 1000 THROCKMORTON FORT WORTH TX 76102 Invoices may be served by personal delivery,U.S. mail, or by any regular delivery service that provides receipt and evidence of delivery. Invoices shall be deemed delivered upon the earli r Z June 27,2003 Version 9 6 days from the date of mailing if sent by U.S. mail, or(ii) the earliest of the date of(X) actual delivery, or(I) refusal to accept delivery,if served by any other method. c) All payments to be given or made hereunder shall be addressed to Arch Wireless at the following address: Arch Wireless PO BOX 660770 DALLAS TX 75266-0770 All payments shall be deemed delivered on the date of actual delivery. 15) ASSIGNMENT.This Agreement is not assignable or delegable by either party without the prior written consent of the other. Notwithstanding the foregoing,Arch Wireless may assign or delegate its rights and obligations hereunder, without the written consent of Customer, to any affiliate, direct or indirect parent or subsidiary, or sucrossor to its business (of whatever nature). 16) FORCE MAJEURE. Except for Customer payment obligations hereunder, operation of this Agreement shall be suspended during any period where a party's failure or delay in performance is the result of any Act of God, civil disturbance, strike, natural disaster or other circumstances completely beyond the control of the parties. 17) GOVERNING LAW. This Agreement shall be governed by the laws of the State of Texas applicable to agreements entered into and to be wholly performed within the State of Texas. 18) RESOLUTION OF DISPUTES. a) The parties agree that no court shall have jurisdiction over any dispute between the parties unless they agree in writing or they have pursued alternative methods of dispute resolution as set forth in this Section. The sole exception will be situations of insolvency or bankruptcy where the other party may fairly be said no longer to have freedom to resolve claims or in cases where a party is entitled to immediate equitable relief other than specific performance of the contract terms. b) In the event either party has a dispute with the other, that party shall give written notice of that dispute to the other and propose a time and place, no later than 7 business days thereafter, for a discussion to try to resolve it. Discussions will continue as the parties are available for no less than 30 days and longer if the parties agree to extend the time. c) If the dispute cannot be resolved by discussion, the party raising the issue may select any qualifying alternative dispute resolution agency acceptable to the other party. The matter will first be submitted to nonbinding mediation in accordance with the rules of that organization, and mediation will be pursued by both parties in good faith until the mediator declares that the dispute cannot be resolved by that means. Within 7 business days of the mediator's determination that the dispute cannot be resolved by mediation, either party may request that the same organization conduct an arbitration of the dispute, in accordance with its rules. If such a request is made, and upon the express written consent of both parties, the parties will pursue arbitration according to the organization's rules, with the proviso that there will be only one arbitrator selected. The arbitrator's decision will be enforceable in any court of competent jurisdiction in accordance with applicable law. low June 27,2003 Versionif 10 i d) If the dispute cannot be resolved by alternative methods, and the parties proceed to resolve the dispute in a court of law, venue shall he in the state courts in Tarrant County, Texas or the United States District Court for the Northern District of Texas,Fort Worth Division. e) The parties may at any time agree that this alternative dispute resolution provision will not apply to a dispute and that the matter may be resolved by the state courts of Tarrant County, Texas, or the United States District Court for the Northern District of Texas, Fort Worth Division. 19) CONFIDENTIALITY. a) Confidentiality. Each party acknowledges that during the term of this Agreement it may receive information relating to the present or future business operations of the other party or other non-public information that may reasonably be deemed confidential or proprietary. Such information, together with the prices, terms and conditions of this Agreement, is "Confidential Information." Notwithstanding the above, "Confidential Information"will not include information that: (i) is or becomes generally known or available to the public through no act of the receiving party in violation of this Agreement; (ii) was known by the receiving party at the time of disclosure by the disclosing party; (iii) is independently developed by the receiving party without use of the disclosing party's Confidential Information;or (iv) is lawfully obtained from a third person who has the right to make such disclosure. Each party will use the same precautions to safeguard the Confidential Information of the other as it uses for its own confidential information (but in no event less than reasonable care) and neither party will use the other's Confidential Information for purposes other than those necessary to further the purposes of this Agreement. Neither party will disclose to third persons the other's Confidential Information without the prior written consent of the other party, unless required under applicable law, rule or regulation, or pursuant to the order of any court or governmental entity or legal process of any governmental entity. b) Customer Information. Customer agrees that (i) Arch Wireless may use information related to the type, quantity and technical configuration of the Services used by Customer for the purposes of marketing other services to Customer and Subscribers,and (ii) any custom applications developed for Customer will be the property of Arch Wireless and the information and data provided by Customer in connection with any such custom application will be the property of Customer. c) The terms and conditions of Section 19(a) shall survive the expiration or earlier termination of this Agreement for a period of two (2) years. 20) SIGNATURE AUTHORITY. The individuals signing below on behalf of the contracting parties respectively warrant that they are properly and duly authorized to so sign and obligate their respective employers/principals. Upon execution of this Agreement, each party shall have the right to rely on such warranty and may rely on the apparent authority in asserting its rights hereunder and its fulfillment of its obligations hereunder. 21) ENTIRE AGREEMENT.This Agreement represents the entire agreement with respect to the subject matter hereof and supersedes all prior discussions and agreements between the parties relating to the subject matter hereof. This Agreement may be modified only by a written amendment duly signed by persons authorized to sign agreements on behalf of both parties, and shall not be supplemented or modified by any course of dealing or trade usage, other than as specified herein. Variance from or addition to the terms and conditions of this Agreement by any purchase order, or other written notification, shall be of no effect. I •I` _• uCe�nii June 27,2003 Version } �� T, `;•�jte� �" 22) SEVERABILITY. If any provision of this Agreement is held to be illegal, invalid, or unenforceable,such provision will be enforced to the maximum extent permissible so as to effect the intent of the parties, and the validity, legality, and enforceability of the remaining provisions will not in any way be affected or impaired thereby. 23) SURVIVAL. Any obligations and duties that by their nature extend beyond the expiration or earlier termination of this Agreement shall survive any such expiration or termination and remain in effect as necessary or appropriate to fulfill such obligations or duties in accordane with such terms. 24) WAIVER. No delay or failure by either party in exercising any right under this Agreement, and no partial or single exercise of that right, will constitute a waiver of that right or any other right. Failure by either party to enforce any right under this Agreement will not be deemed a waiver of future enforcement of that or any other right 25) NO THIRD PARTY BENEFICIARIES. There are no third party beneficiaries to this Agreement or the Services and Equipment provided hereunder, including but not limited to any Subscriber or family member of such Subscriber. 26) INTELLECTUAL PROPERTY. All intellectual property (copyrights, patents, trade secrets, confidential and proprietary information,license rights and the like) included in any of the Services or Equipment provided by Arch Wireless under this Agreement ("Intellectual Properq,') shall remain the sole and exclusive property of Arch Wireless and its licensors and shall be subject to the standard end-user license agreements of Arch Wireless and its licensors for such Intellectual Property. Any such license rights shall automatically terminate in connection with the termination of this Agreement. In no event shall Customer(a) rent,lease, or loan the Intellectual Property;(b) electronically transmit the Intellectual Property over a network except as necessary for Customer's licensed use of the Intellectual Property; (c) use run-time versions of third-party products embedded in the Intellectual Property, if any, for any use other than the intended use of the Intellectual Property; (d) modify, disassemble, decompile, or reverse engineer the Intellectual Property; (e) transfer possession of any copy of the Intellectual Property to another party,except as expressly permitted herein;or (0 use the Intellectual Property in any way not expressly provided for in this Agreement. There are no implied licenses and Customer agrees not to exceed the scope of the written licenses granted. [REMAINDER OF PAGE LEFT BLANK INTENTIONALLY] L���1/ June 27,2003 Version 12 V EXHIBIT A SCOPE OF SERVICES AND PRICING *****All pricing is equal to or better than the pricing offered on the State Contract with the Department of Information Resources. ****** 1. Advanced Messaging(Two-way) (a) Customer Owned Units (Airtime) MONTHLY 10,000 25,000 50,000 100,000 Unlimited CHARACTER PLAN Characters Base price per runt per month $9.95 $11.95 $19.95 $23.95 $29.95 Overcall charges $.0010 $.0007 $.0006 $.0005 N/A (charge per character over allotted monthly allowance Equipment Options Equipment Purchase Equipment (Purchase Price/Rep]acement Cost) Installment Purchase Plan* Webster 100 $99.00 Additional$_NA_ (Motorola T 900) per Unit per Month plus Required Maintenance Fees Webster 200 $319.00 Additional$_NA (Motorola Time Port P935) per unit per Month plus Required Maintenance Fees *Requires 18 month minimum service commitment and subjects Customer to Early Termination Fee (See Section 3 of this Exhibit A. After the Equipment Installment Purchase period(18 months), the end user rates will drop to the Customer owned Service rater for the remainder of the contract terns and the end user will no longer be required to purchase Maintenance. Wu �'�11 L �1�y��0'r�7.•. r , ::' F"alll'� den ia1 June 27,2003 Version 14 2. Traditional Messaging (One-Way) (a) Customer Owned Units (Airtime Only) Local Service Rate/Unit/Month Monthly Call Allowance Numeric $NA Unlirmted Alphanumeric $NA Unlimited Nationwide Service Rate/Unit/Month Monthly Call Allowance Regional Numeric $NA 200 calls/$0._per call thereafter Regional Alphanumeric $NA 140 calls**/$0._per call thereafter Nationwide Numeric $NA 200 calls/$0._per call thereafter Nationwide Alphanumeric SNA 140 calls**/$0._per call thereafter (b) Leased Units (Equipment+Airtime) Local Service Rate/Unit/Month Monthly Call Allowance Numeric $1.95 Unlinuted Statewide Numeric $2.15 Unlimited Alphanumeric $5.00 Unlimited Statewide Alphanumeric $5.50 Unlimited Nationwide Service Rate/Unit/Month Monthly Call Allowance Regional Numeric $13.95 200 calls/$0.25_per call thereafter Regional Alphanumeric $22.95 140 calls**/$0.50_per call thereafter Nationwide Numeric $19.95 200 calls/$0.25_per call thereafter Nationwide Alphanumeric $31.95 140 calls**/$0.50_per call thereafter *Calls calculated using 80 character blocks(ruck that a single menage of one to 80 cbaracters would be considered one call,a single menage of 81 to 160 cbaracters would be considered two calls,etc.) **Calls calculated using SS character blocks(such that a single message of one to SS characters would be considered one call,a Tingle message of S6 to 110 characters would be considered two calls,etc.) Confidential June 27,2003 Version 17 (c) Optional Services (i) Local and Nationwide Voice Mail(Numeric and Alphanumeric) Add voice mail to your device and your callers can leave detailed voice messages and you'll be notified on your device. Basic packages include: Starter Express Enhanced Executive Greeting Length 20 seconds 30 seconds 45 seconds 60 seconds Max. Message Length 20 seconds 30 seconds 45 seconds 60 seconds Max. Message Capability 5 messages 10 messages 10 messages 15 messages Unplayed/Played Retention 4 hours 12 hours 24 hours 72 hours Price/Unit/Month $1.00 $2.50 $3.00 $4.00 (ii) Operator Dispatch Service Package: Callers dial a toll free number to send a text message via live o erator. Plan Monthly Message Allowance Additional Charges Charge/ Unit Usage $ .00 None $0._50_per operator dispatched message. Each Alpha message counts against monthly call allowance. Unlimited $7.50 Unlimited Each message counts against monthly call Local Alpha allowance Unlimited $7.50 Unlimited. Each message counts against monthly call Nationwide allowance Alpha (iii) Maintenance/Loss Protection Customer Owned Units Type of Unit Plan Deductible Price/Unit/Month Numeric Maintenance N/A $39.00 Numeric Loss Protection $.25 $25.00 Alphanumeric Maintenance N/A $99.00 Alphanumeric Loss Protection $.25 $30.00 Leased Units Type of Unit Plan Deductible Price/Unit/Month Numeric Maintenance N/A Included in Monthly Service Plan Numeric Loss Protection $.25 $25.00 Alphanumeric Maintenance N/A Included in Monthly Service Plan Alphanumeric Loss Protection $.25 $30.00 (iv) Misc. ADDITIONAL SERVICES Personal Toll Free Number $3.50 rice/unit/month L�n�deriliat��_ June 27,2003 Version 18 § Page Sequencing No Charge Sequential numbering of pages rice/unit/month sent. Information Services No Charge Headline news,stocks,weather, andsports Additional Phone Numbers $.35 Local Number rice/unit/month Group Call $1.00 Additional capcode programmed (price/unit/month) into multiple pagers. All pagers receive same message simultaneously. (d) Equipment Prices/Replacement Costs Motorola Advisor Elite $99.00 Eagle Ranger $39.00 Motorola Gold Flex $99.00 AN1000 $39.00 Titan III $99.00 Motorola Bravo LS 350 $39.00 Confidential June 27,2003 Version 19 3. Miscellaneous Pricing Provisions EARLY TERMINATION RELATING TO TWO-WAY WIRELESS DEVICES. IN THE EVENT CUSTOMER ELECTS TO PURCHASE ITS TWO-WAY WIRELESS COMMUNICATION DEVICES PURSUANT TO THE EQUIPMENT INSTALLMENT PURCHASE PLAN SET FORTH ABOVE AND CUSTOMER CANCELS OR OTHERWISE TERMINATES SERVICES RELATING TO SUCH DEVICES PRIOR TO THE EXPIRATION OF THE REQUIRED MINIMUM SERVICE COMMITMENT, CUSTOMER SHALL BE REQUIRED TO PAY THE APPLICABLE EQUIPMENT AND SERVICE CHARGES FOR THE REMAINDER OF THE MINIMUM REQUIRED SERVICE COMMITMENT. IN THE EVENT CUSTOMER ELECTS TO LEASE ITS TWOWAY WIRELESS COMMUNICATION DEVICES AND CUSTOMER CHANGES OR OTHERWISE TERMINATES SERVICES RELATING TO SUCH DEVICES PRIOR TO THE EXPIRATION OF THE REQUIRED MINIMUM SERVICE COMMITMENT, CUSTOMER SHALL BE REQUIRED TO PAY THE APPLICABLE LEASE AND SERVICE CHARGES FOR THE REMAINDER OF THE MINIMUM REQUIRED SERVICE COMMITMENT. Loss Protection—If the Equipment is lost, stolen or destroyed (except where damage is intentionally caused by Customer or Subscriber), Arch Wireless will replace the unit (with a substantially similar unit) at no additional charge (other than the applicable deductibl?). Maintenance — Arch Wireless shall, at its discretion, repair or replace (with a substantially similar unit) Equipment at no additional cost to Customer (other than applicable deductibles, if any) that Arch Wireless determines to be defective. In the event that Equipment covered by Maintenance is damaged while in Customer's possession, or is returned to Arch Wireless with parts missing, Arch Wireless shall charge Customer for such repair or replacement of such Equipment(including,without limitation, for all replacement parts,repair charges and handling fees in effect at such time). Preferred Partner Service Charges — [INSERT THIRD PARTY PROVIDER UPCHARGE, IF APPLICABLE] Confidential - June 27,2003 Version 20 I EXHIBIT B ARCH WIRELESS OPERATING PROCEDURES I. SERVICE/BILLING ISSUES ALL ISSUES (i.e., service on existing units, adding units, disconnecting units, billing, etc.) must be communicated directly to the ARCH WIRELESS NATIONAL ACCOUNTS CUSTOMER SERVICE CENTER. Please instruct your field personnel not to contact a local messaging company(Arch Wireless or otherwise). II. DISCONNECTS All returned Equipment requires a thirty (30) day disconnect notice. The thirty (30) day notice, standard for the wireless messaging industry, is required to allow us to plan and process inventory returns and to disconnect service from local messaging companies on an orderly basis. Therefore, please provide Arch Wireless National Accounts with this written thirty(30) day notice,indicating the following. - device telephone number - cap code - serial number - requested disconnect date - reason for return Note that in the event Equipment is returned to Arch Wireless National Accounts without, or after expiration of, the thirty (30) day notice,Arch Wireless will bill that account through the period ending an additional thirty (30) days after Arch Wireless's receipt of the Equipment. In the event that Equipment is returned and/or disconnected to a local messaging company,Arch Wireless National Accounts will continue to bill the account for that Equipment until either the expiration of the thirty (30) day disconnect notification period or the date upon which Arch Wireless National Accounts verifies the return/disconnect,whichever is longer.This complicated and costly situation can be avoided if Arch Wireless National Accounts is notified of all service issues directly. All Equipment for which Arch Wireless receives a disconnect notice will be "lost billed" (ENR— Equipment Not Returned or Lost) until the unit is returned to Arch Wireless. When the units are returned,Arch Wireless will credit the account for the amount paid by the Customer(Equipment Returned or Found). III. REPLACEMENTS All Equipment for which replacements are sent will be "lost billed" (ENR — Equipment Not Returned or Lost) until the unit is returned to Arch Wireless. If any units are returned after the account has been "lost billed", Arch Wireless will credit the account for the amount paid by the Customer (Equipment Returned or Found). IV. SHIPPING/MAILING ADDRESSES June 27,2003 Version ; 1' 11 Q 2 l r�. "r:O nit Y1�, Disconnected/replaced Equipment should be shipped to the following address: 2800 Technology Drive Suite 200 Plano,Texas 75074 June 27,2003 Version 22 City of Fort Worth, Texas Mayor and Council Communication COUNCIL ACTION: Approved on 4/27/2004 DATE: Tuesday, April 27, 2004 LOG NAME: 13PO4-0098 REFERENCE NO.: **P-9953 SUBJECT: Purchase Agreement for Pagers and Pager Service with Arch Wireless Inc., for the Information Technology Solutions Department RECOMMENDATION: It is recommended that the City Council: 1. Authorize a Purchase Agreement for the rental of pagers and the use of paging service with Arch Wireless Inc., using the State of Texas Department of Information Resources (DIR) contract; and 2. Authorize this agreement to begin May 1, 2004, and expire April 30, 2005, with options to renew for the next two consecutive years. DISCUSSION: The City of Fort Worth executed an Intergovernmental Agreement in April 1999 (M&C P-8821), with Tarrant County for the procurement of pagers and pager service. The agreement was for one year with four options to renew. The agreement will expire on April 30, 2004. Currently there are approximately 1,300 City employees who use a pager in connection with their City work duties. Employees who work in some public safety capacity comprise about 50% of the users. As a result, staff recommends the best interest of the City can be served by continued usage of the same vendor for pagers and pager services. Pagers were not included in the recent change in the Telecommunications Act that allowed for number portability. As a result, if a different vendor is used for pager service then each employee would get a new pager number. The direct and indirect costs for the conversion would be significant. Arch Wireless, the current provider of service for the City, has a contract with the State of Texas DIR for pager services. Arch Wireless has agreed to provide the City with pager rental and pager service using the guidelines for pricing in the DIR contract. The new agreement with Arch Wireless will have the same pricing structure that the City currently receives. Over the last year, the City's approximate annual expenditures for pager rental and pager service was $75,000. Arch Wireless is an authorized contracting agency with DIR to sell pager rental and pager service. DIR is authorized to offer the cooperative purchasing program to state agencies, public institutions of higher learning, public school districts, and local governments. The Texas Government Code, Section 791.025 (c), indicates that a local government that purchases goods and services under the Interlocal Cooperation Act satisfies otherwise applicable competitive bidding requirements. All purchases made under this authorization process will be made in accordance with adopted budgets. IT Solutions will continue to work with the Purchasing Division of the Finance Department to ensure compliance. The Purchasing Division ultimately oversees and manages this procurement method for the Logname: 13PO4-0098 Pate 1 of 2 City of Fort Worth. M/WBE - A waiver of the goal for M/WBE subcontracting requirements was requested by the Purchasing Division and approved by the M/WBE Office because the purchase of goods or services is from sources where subcontracting or supplier opportunities are negligible. RENEWAL OPTIONS - This agreement may be renewed for up to two successive one-year terms at the City's option. This action does not require specific City Council approval provided that the City Council has appropriated sufficient funds to satisfy the City's obligations during the renewal term. FISCAL INFORMATION/CERTIFICATION: The Finance Director certifies that funds are available in the current operating budget, as appropriated, of the participating departments. BQN\04-0098\LGS TO Fund/Account/Centers FROM Fund/Account/Centers Submitted for City Manager's Office by: Charles Boswell (6183) Originating Department Head: Jim Keyes (8517) Additional Information Contact: Robert Combs (8357)Kate Yarhouse (8465) Logname: 13PO4-0098 Paee 2 of 2 IN WITNESS WHEREOF, each of the parties has caused this Agreement to be executed by a person with full power and authority to bind such party on the day and year first written above. Arch Wireless Operating Company, Inc. CITY OF FORT WORTH (Arch Wireless) By: - By: Name: `�.74 ame: Charles R. Boswell Title `p Title:Assistant City Manager I�TQ �AND(_M LEGAUIY' Gty AttrmW Da3'te ATTESTED BY '--Z an 1!=�- Contract Authorization - � - a date Atial June 27,2003 Version � ? ^ t ?�"o 13