Loading...
HomeMy WebLinkAboutResolution - 2000-R0176 - Agreement - Com-Net Ericsson Critican Radio Systems Inc.- Software - 06_20_2000a RESOLUTION Resolution No. 2000-R 0176 June 20, 2000 Item No. 23 BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF LUBBOCK THAT the Mayor of the City of Lubbock BE and is hereby authorized and directed to execute for and on behalf of the City of Lubbock, an Agreement between the City of Lubbock and Com-Net Ericsson Critical Radio Systems, Inc., for software, and related documents. Said Agreement is attached hereto and incorporated in this resolution as if fully set forth herein and shall be included in the minutes of the City Council. Passed by the City Council this 20th day of June , 2000. WINDY • MAYOR APPROVED AS TO CONTENT: Ar��Lff Sharlett Chowning Managing Director, Information Technology APPROVED AS TO FORM: William de Haas Competition and Contracts Manager/Attorney Dh/Ccdocs/com-netsoftware June 13, 2000 4 y EDACS FX AGREEMENT References: MBP No. Resolution No. 2000 R 0176 June 20, 2000 Item. No. 23 FX Requisition No. Cust. P.O. No. THIS EDACS FX AGREEMENT ("Agreement") is hereby entered into between Com-Net Ericsson Critical Radio Systems, Inc. ("Com-Net Ericsson") and City of Lubbock, TX ("Subscriber") on the following terms and conditions: 1. SCOPE OF AGREEMENT During the term of this Agreement, as set forth in Section 7, Com-Net Ericsson agrees to provide Subscriber with software updates, documentation updates and other services, as set forth in Section 3 of this Agreement, for the software developed and provided by Com-Net Ericsson and contained within the Subscriber's Designated EDACS System(s) as described in Schedule A to this Agreement. 2. DEFINITIONS As used in this Agreement, the following terms shall have the meanings set forth below. A. "Contract" means the agreement for the purchase of the Designated System(s). B. "Current Software Release Levels" means the most recent Software release announced by Com-Net Ericsson as being commercially available. "Commercially available" does not include interim releases provided as emergency fixes or software released for beta test or noncommercial or similar purposes. C. "Designated System(s)" means the EDACS system(s) purchased by Subscriber and identified in Schedule A to this Agreement. The Designated System does not include Vendor Products, Excluded Products or other systems to which the Designated System may be linked. D. "Encrypted Features" means those EDACS product features which are not included as part of the standard EDACS system component or radio product software and which are activated by Com-Net Ericsson only upon their being licensed to Subscriber. Examples of such features are Landline Data and Multiple Channel Partitioning for the EDACS system components and Priority System Scan for the EDACS PCS portable radios. E. "Licensed Programs" means all Com-Net Ericsson Software programs and associated documentation nonexclusively licensed to Subscriber by Com-Net Ericsson for use solely with Subscriber's Designated System, under one or more licenses, for which services are to be provided hereunder. F. "Software" means computer programs contained on a magnetic tape, semiconductor device or other memory device or system memory consisting of: (a) hardwired logic instructions which manipulate data in a processor and control input-output operations and error diagnostic and recovery routines, and (b) instruction sequences in machine- readable code that control transaction processing, peripheral equipment and administration and maintenance functions, as well as associated documentation used to describe, maintain and use the programs. G. "EDACS FX Classification" means the classification of Subscriber's Designated System(s) within categories of system complexity, as defined by Com-Net Ericsson from time to time, for the purpose of determining Subscriber's annual EDACS FX Fee. H. "Updates" means any commercially available corrections, modifications or enhancements to the Licensed Programs generally released and/or provided by Com-Net Ericsson. I. "EDACS Reseller" means a person or entity authorized by Com-Net Ericsson to sell certain EDACS products and systems as an authorized EDACS Reseller in accordance with the provisions of an EDACS Reseller Agreement between Com-Net Ericsson and such person or entity. ECR-5145 Rev I 3/17/00 J. "EDACS Strategic Integrator" means a person or entity authorized by Com-Net Ericsson to sell certain EDACS products and systems as an authorized EDACS Strategic Integrator in accordance with the provisions of a Relationship Agreement between Com-Net Ericsson and such person or entity. 3. DESCRIPTION OF EDACS FX PROGRAM FEATURES A. Software Releases Included. With respect to each Licensed Program, and subject to the conditions of this Agreement, Com-Net Ericsson will provide the Software Updates described below during the term of this Agreement. All Updates shall be shipped to Subscriber's EDACS FX contact designated in Schedule A of this Agreement via protective packaging containing a quantity of programmed Software media., PROMs, TK50/DAT tapes, Compact Discs or diskettes) necessary for Subscriber to fully implement the Software Updates within its Designated System. In addition, each shipment of Software Updates shall contain at least one set of Software release notes detailing the contents of the Software Update and providing installation instructions. All Software Updates and documentation shipped to Subscriber shall be considered part of the Licensed Programs, shall be subject to the terms and conditions of the nonexclusive licenses granted by Com-Net Ericsson to Subscriber, and Com-Net Ericsson shall be free to license others with respect thereto. Software Updates Upon Enrollment. As determined by the system audit described in Section 3.C.i. of this Agreement, Com-Net Ericsson shall provide to Subscriber the Software Updates needed, if any, to bring the Licensed Programs within Subscriber's Designated System up to Com-Net Ericsson's Current Software Release Levels. Such Updates will be provided at no additional cost to Subscriber provided Subscriber has enrolled in the EDACS FX program within the enrollment deadline specified in Section 4.A of this Agreement and provided Subscriber has installed, at Subscriber's expense, the compatible hardware necessary to accommodate the Software Updates. ii. Subsequent Software Updates. During the term of this Agreement and subject to Subscriber's performance of its obligations, Com-Net Ericsson shall provide to Subscriber Software Updates, released by Com-Net Ericsson subsequent to Subscriber's enrollment in EDACS FX, for the Licensed Programs contained within Subscriber's EDACS Designated System. Such subsequent Software Updates may include: a. Enhancements and/or corrections to existing features for all EDACS Designated System backbone components and/or radios; b. New features implemented via the system components already contained within Subscriber's Designated System, including unencrypted features for the system backbone components and/or unencrypted features for the radio products; and c. Software for product migrations where a new generation of Software is developed for the Designated System component, rather than the older generation of Software being updated. iii. Software Replacements. In the event any Software media contained within Subscriber's Designated System incurs damage, whether from acts of Nature or human error, Com-Net Ericsson shall , provide replacements for such Software to Subscriber at no additional charge, subject to the terms and conditions of this Agreement. B. Software Releases Not Included. The following Software releases are not included within the terms of this Agreement: i. New Products. Any Software products released by Com-Net Ericsson for which an earlier generation or release level is not already contained within Subscriber's Designated System. If Subscriber wishes to implement such Software products within its Designated System, it will need to license such products at the fees then in effect and purchase any necessary compatible hardware for operation of such Software. ii. Encrypted Features. Encrypted features for EDACS products are not included under this Agreement. Such features must be licensed separately by Subscriber at the fees then in effect. ECR-5145 Rev J 3/17/00 hi. Third Party Software. To the extent that such Vendor Products are available and compatible with the Designated System, Com-Net Ericsson reserves the right to charge an additional fee for upgrades to software programs that are licensed by a third party for use with the EDACS system yet are not the property of Com-Net Ericsson Critical Radio Systems. C. Services Included. Subject to the terms and conditions of this Agreement and Subscriber's compliance therewith. Com-Net Ericsson will provide to Subscriber the services described below. Unless otherwise indicated, these services are provided to Subscriber at no additional charge. i. System Configuration Baseline and Documentation Update. As part of the initial enrollment process for EDACS FX, an audit will be conducted by Com-Net Ericsson, or its EDACS Reseller or EDACS Strategic Integrator, of Subscriber's Designated System(s) to be covered under this Agreement. This audit will be used to verify Subscriber's first -year EDACS FX Fee and to determine the Software release levels for Licensed Programs contained within Subscriber's System at the time of enrollment, together with any hardware updates necessary to accommodate Software Updates or to address Year 2000 Readiness issues. ii. EDACS FX Bulletin. Prior to the general release by Com-Net Ericsson of any Software Updates, Subscriber shall receive an EDACS FX Bulletin announcing the impending release, and detailing its contents and impact, if any, on any other EDACS hardware or Software components. Subscriber acknowledges that older hardware may not have sufficient capacity for the operation of the Software Updates. NOTHING IN THIS AGREEMENT OR OTHERWISE REQUIRES COM-NET ERICSSON EITHER TO DESIGN UPDATES THAT REMAIN COMPATIBLE WITH DESIGNATED SYSTEM HARDWARE OR TO PROVIDE ADDITIONAL HARDWARE UNDER THIS AGREEMENT, AND SUBSCRIBER WAIVES ANY SUCH DUTY OR OBLIGATION BY COM-NET ERICSSON. iii. Installation Phone Support. Subscriber's EDACS FX subscription shall include telephone support by Com-Net Ericsson's Technical Assistance Center (TAC) personnel with respect to the installation of Software Updates. Such support will be available during Com-Net Ericsson's normal business hours (8:00 a.m. to 5:00 p.m. Eastern Standard Time Monday through Friday, excluding holidays) and for a period of ninety (90) days from the date the Software Update is released to Subscriber. After-hours emergency support will be available through Com-Net Ericsson's optional System Maintenance services at prices then in effect, provided that Subscriber is in compliance with the terms of this Agreement. iv. Upgrade Planning. If Subscriber is in compliance with the terms of this Agreement and its Designated System is classified as a Level 4 EDACS or higher, Com-Net Ericsson, or its EDACS Reseller or EDACS Strategic Integrator, shall provide yearly consultation service at Subscriber's site to review Com-Net Ericsson's planned Software releases and evaluate the operational and financial impact such releases may have on Subscriber's Designated System. If Subscriber is in compliance with the terms of this Agreement and its Designated System is classified below Level 4 EDACS, upgrade planning is not included within the terms of this Agreement but can be obtained from Com-Net Ericsson at the rates then in effect for such service. D. Services Not Included. The following services/products are not included within the terms of this Agreement: i. Terminal Software Updates. Installation of Software Updates to terminal products is not included, but such installations may be obtained through Com-Net Ericsson, or its EDACS Reseller or EDACS Strategic Integrator, at the rates then in effect for such service provided that Subscriber is in compliance with the terms of this Agreement. ii. Software Update Installation. Installation of Software Updates by Com-Net Ericsson is not included, but such installations may be obtained from Com-Net Ericsson, or its EDACS Reseller or EDACS Strategic Integrator, at the rates then in effect for such service, provided that Subscriber is in compliance with the terms of this Agreement. ECR-5145 Rev J 3/17100 iii. Hardware Upgrades. In the occasional event that a Software Update released requires a corresponding hardware change, Subscriber will need to purchase separately the compatible hardware required. Com-Net Ericsson will endeavor to notify Subscriber in advance via the EDACS FX Bulletin or, if applicable, via EDACS FX's upgrade planning service of any hardware changes needed in order to implement a Software Update. No such notice will be given for Vendor Products or Excluded Products, and no hardware upgrade may be available. iv. Optional Support Services. Other Software support services Subscriber may require, including, but not limited to, training, customized software programming or troubleshooting through Com-Net Ericsson's Technical Assistance Center are outside the scope of this Agreement but may be obtainable through other programs offered by Com-Net Ericsson. v. Remote Site Transportation Costs. For those sites that are not readily accessible by motor vehicle and require special transportation arrangements in order to gain access for Designated System audits, Subscriber will be responsible, at its expense for providing transportation to the site and reasonable lodging and other support where same day service is not reasonably available. 4. CONDITIONS FOR SERVICE A. Enrollment Deadline. Subscriber agrees to enroll in EDACS FX no later than sixty (60) days after the earlier of. (i) the first expiration date of the warranty provided by Com-Net Ericsson for any component of Subscriber's Designated System, or (ii) the first expiration date of the warranty provided by Com-Net Ericsson for any of the Software within Subscriber's Designated System. If either such warranty already has expired when Subscriber is first offered the EDACS FX Program, Subscriber will be given a 60-day grace period in which to enroll in EDACS FX. A Subscriber meeting the enrollment deadline will receive, at no additional charge as described in Section 3.A.i. of this Agreement, the Software Updates needed to bring its Designated System up to Com-Net Ericsson's Current Software Release Levels to the extent the Designated System hardware is compatible with such Software Updates. B. Subscriber Contact. Com-Net Ericsson requests that Subscriber identify its Subscriber Contact in Section S.B. of Schedule A to this Agreement. Subscriber shall designate a person with sufficient technical expertise to be able to interact knowledgeably with Com-Net Ericsson's technical support personnel. To the maximum extent practicable, Subscriber's communications with Com-Net Ericsson (with regard to the Software Updates provided under this Agreement) should be through the Subscriber Contact. C. Installation. Subscriber agrees to properly install the Software Updates provided by Com-Net Ericsson in order of receipt from Com-Net Ericsson. Subscriber understands that Software support provided by Com-Net Ericsson is limited to Com-Net Ericsson's Current Software Release Levels of Licensed Programs for the Designated System. D. Media Labeling. Subscriber agrees that if it makes copies of any Software Update supplied by Com-Net Ericsson, whether for backup purposes or in order to install a Software Update throughout its Designated System, Subscriber will reproduce any copyright notice and/or proprietary notice appearing on and/or in such Update and will label all copies with all information, including part numbers and revision levels, provided on the set of media provided by Com-Net Ericsson. Nothing herein grants Subscriber any right to sublicense any Software or to distribute copies to any other person, and such sublicensing and distribution is expressly prohibited. E. No Modification of Software. Subscriber agrees not to modify, enhance or otherwise alter any Software unless specifically authorized in the user documentation provided by Com-Net Ericsson with such Software Update or unless the prior written consent of Com-Net Ericsson is obtained. Under no circumstance shall Subscriber create or permit the creation of any derivative work from any Software or the reverse engineering or replication of any Software. F. Com-Net Ericsson's obligations under this Agreement are conditional upon Subscriber's compliance with the terms of this Agreement and any Contract then in effect between Com-Net Ericsson and Subscriber. i ECR-5145 Rev J 3/17/00 S. FEES, TERMS OF PAYMENT & TAXES A. EDACS FX Fee. Subscriber agrees to pay Com-Net Ericsson or its EDACS Reseller or EDACS Strategic Integrator an annual EDACS FX Fee, in the amount set forth in Schedule A to this Agreement, plus taxes pursuant to Subsection E below, for EDACS FX services provided during the term as defined in Schedule A. Subsequent years' EDACS FX Fees, beyond Subscriber's fast -year fee specified in Schedule A, may or may not remain at the same rates. During the initial five (5) years of this Agreement, annual FX rates will increase no more than 5% per year provided the designated system remains in the same EDACS FX calssification. Any changes made to Subscriber's Designated System(s) or mobile equipment which results in their falling into another EDACS FX Classification will be reflected in the following year's EDACS FX Fee. If Com-Net Ericsson's rates for EDACS FX should increase, Subscriber will be notified in writing of any such increases at least one hundred twenty (120) days prior to the end of Subscriber's yearly EDACS FX period then in effect. B. Other Charges. Subscriber understands that if it chooses to delay its enrollment in EDACS FX beyond the deadline described in Section 4.A. of this Agreement, Subscriber will need to license, at the applicable fees then in effect, the initial Software Updates needed to bring its System up to Com-Net Ericsson's Current Software Release Levels, as well as any hardware which may be required to accommodate such Updates. C. Due Date. Subscriber's first -year EDACS FX Fee will be invoiced upon receipt of this Agreement signed by Subscriber. Payment will be due thirty (30) days from the date of the invoice. Subscriber's subsequent years' EDACS FX Fees will be automatically invoiced sixty (60) days prior to the commencement of the subsequent year's term. Payment of all amounts due is a condition precedent to Com-Net Ericsson providing any future Software Updates or other services. D. Payment Terns. Payment shall be made in United States currency. All amounts over thirty (30) days past due shall accrue interest from the due date at the rate of one and one-half percent (1-1/2%) per month (or such lesser rate as is the maximum permissible rate under applicable law). In addition to payment of interest, Subscriber agrees to pay all collection costs and enforcement expenses, including reasonable attorneys' fees, if Com-Net Ericsson must bring an arbitration or other proceeding to collect any amount owed by Subscriber or to enforce any rights in any bankruptcy or similar proceeding involving Subscriber. E. Taxes. In addition to all fees specified herein, Subscriber shall pay the gross amount of any present or future sales, use, excise, value-added, or other similar tax applicable to the price, sale or delivery of any products or services furnished hereunder or to their use by Subscriber, unless Subscriber shall otherwise furnish Com-Net Ericsson with a tax -exemption certificate acceptable to the applicable taxing authorities. F. Discontinuance. Subscriber understands that if Subscriber discontinues and then subsequently resumes participation in the EDACS FX Program, Subscriber will be required to pay a re-entry fee for any benefits provided to Subscriber upon re-entry to the EDACS FX Program plus the EDACS FX Fee for the term then commencing. 6. TITLE The Licensed Programs and all copies thereof, in whole or in part, and all Software, documents and materials which may be provided by Com-Net Ericsson hereunder for use in connection with such Programs are furnished nonexclusively as part of the Licensed Program(s) defined in the applicable software license agreement(s) and shall remain the exclusive property of Com-Net Ericsson and will be held in confidence by Subscriber in accordance with the provisions of each such software license agreement. Under no circumstance shall Subscriber create or permit the creation of any derivative work from any Software or the reverse engineering or replication of any Software. ECR-5145 Rev J 3/17/00 is ■ 7. TERM & TERMINATION A. EDACS FX services will be provided by Com-Net Ericsson to Subscriber for an initial one-year term, as defined in Schedule A to this Agreement, and thereafter on a year-to-year basis as provided herein, subject to prior payment in full of all outstanding fees and charges at the time of renewal and compliance with the provisions of this Agreement. This agreement will be valid for a period not to exceed 5 years at which time a new agreement may be negotiated between Com-Net Ericsson and the subscriber. B. Provided Subscriber is then in full compliance with all of its obligations, Subscriber's EDACS FX enrollment shall be automatically renewed at the end of the first- year term for a second year's term and on a succeeding yearly basis thereafter unless either party notifies the other in writing, at least ninety (90) days prior to the end of the yearly period then in effect, that this Agreement will not be renewed. This agreement will be valid for a period not to exceed 5 years at which time a new agreement may be negotiated between Com-Net Ericsson and the subscriber. C. Subscriber may terminate this Agreement at any time upon thirty (30) days' prior written notice to Com-Net Ericsson, in which case the services described in Sections 3.A. and 3.C. of this Agreement shall be discontinued and this Agreement shall terminate. D. Com-Net Ericsson shall have the right to suspend or terminate this Agreement upon thirty (30) days' prior written notice if Subscriber fails to pay any fees or charges due hereunder or if Subscriber commits any other breach of this Agreement or commits any breach of any applicable Software license agreement for any Licensed Program being supported under this Agreement, any contract between Subscriber and Com-Net Ericsson or any other obligation of Subscriber to Com-Net Ericsson or any of its affiliates. E. Com-Net Ericsson shall have the right to discontinue providing EDACS FX services (including Updates) for any Licensed Program supported under this Agreement. Software Updates may be discontinued at any time at Com-Net Ericsson's discretion. Other services shall not be discontinued without at least ninety (90) days' prior written notice by Com-Net Ericsson to Subscriber. Notwithstanding any other provision of this Agreement, as Subscriber's sole and exclusive remedy Com-Net Ericsson will provide a pro-rata refund of Subscriber's annual EDACS FX Fee if Com-Net Ericsson elects to discontinue providing EDACS FX services for any Licensed Program supported under this Agreement. F. Except as provided in Section 7. E. above, under no circumstances (including any termination of this Agreement) shall any fees paid pursuant to this Agreement be refundable once paid by Subscriber. SA. SOFTWARE WARRANTY Com-Net Ericsson warrants, for a period of ninety (90) days from delivery of a Software Update, that any Software furnished to Subscriber under this Agreement shall be capable of successfully operating on the designated hardware in accordance with the logic defined in the operator's manuals or other supporting documentation when Subscriber's Designated System is supplied with correct input data. If, on the basis of evidence submitted to Com-Net Ericsson within the 90 day term of this warranty, it is shown that any Software does not meet this warranty, Com-Net Ericsson, at its option, will either correct the defect or error in the Software free of charge and provide a corrected Software Update, or make available to Subscriber a satisfactory substitute program. The foregoing warranty is exclusive and in lieu of all other warranties whether written, oral, implied or statutory. NO IMPLIED OR STATUTORY WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE SHALL APPLY, ALL OF WHICH ARE WAIVED IN FULL BY SUBSCRIBER. IN NO EVENT SHALL COM-NET ERICSSON BE LIABLE FOR ANY INCIDENTAL, CONSEQUENTIAL, SPECIAL, INDIRECT OR EXEMPLARY DAMAGES, OR FOR ANY LOST PROFITS OR REVENUES OR OTHER INDIRECT ECONOMIC PREJUDICE, OR FOR ANY EQUITABLE REIMBURSEMENT OR RECOVERY, ALL OF WHICH ARE HEREBY WAIVED IN FULL BY SUBSCRIBER. ECR-5145 Rev J 3/17/00 9. LIMITATION OF LMMILITY The total liability of Com-Net Ericsson, including its subcontractors or suppliers, for all direct or indirect claims of any kind for any loss, cost, expense, liabilities, or damage, whether in contract, warranty, tort (including negligence or infringement), strict liability, equity or otherwise, directly or indirectly arising out of, connected with, or resulting from the performance or non-performance of this Agreement (or any related software license agreement) or from the furnishing of any good or service pursuant to this Agreement (or any related software license agreement) shall not exceed the amount of the most recent annual EDACS FX Fee paid by Subscriber under this Agreement. IN NO EVENT, WHETHER AS A RESULT OF BREACH OF CONTRACT, WARRANTY, TORT (INCLUDING NEGLIGENCE OR INFRINGEMENT), STRICT LIABILITY, EQUITY, OR OTHERWISE, SHALL COM-NET ERICSSON OR ITS AFFILIATES, AGENTS, OFFICERS, DIRECTORS, EMPLOYEES, VENDORS, SUBCONTRACTORS OR SUPPLIERS, BE DIRECTLY OR INDIRECTLY LIABLE FOR ANY SPECIAL, CONSEQUENTIAL, INCIDENTAL, INDIRECT OR EXEMPLARY DAMAGES INCLUDING, BUT NOT LIMITED TO, LOSS OF PROFITS OR REVENUES, LOSS OF USE OF EQUIPMENT, COST OF CAPITAL, COST OF SUBSTITUTE GOODS, FACILITIES, SERVICES OR REPLACEMENT POWER, DOWNTIME COSTS, INTEREST, ATTORNEYS FEES OR LITIGATION COSTS OR CLAIMS OF SUBSCRIBER'S CUSTOMERS FOR SUCH DAMAGES. The provisions of this Section, Limitation of Liability, shall apply notwithstanding any other provisions of this Agreement (or any related software license agreement). The terms and provisions of this Section shall survive the termination or expiration of this Agreement. 10. CONFIDENTIALITY A. Subscriber agrees not to disclose, provide or otherwise make available to any third party any Software or portion thereof, or any technical information provided to Subscriber under the provisions of this Agreement (hereinafter "Confidential Information"), and to hold such materials in confidence using a strict degree of care to protect the Confidential Information from unauthorized disclosure except as required by the Texas Public Information Act. B. Subscriber's obligation with respect to disclosure of Confidential Information shall terminate with respect to any Confidential Information which Subscriber can show was rightfully in its possession prior to the disclosure made by Com-Net Ericsson, or which subsequently came into its possession through a thud party under no obligation of confidentiality to Com-Net Ericsson, or which was independently developed by employees of Subscriber who did not have access to Confidential Information or which becomes a matter of public knowledge other than as a breach of any obligation owed to Com-Net Ericsson, or which is disclosed with the prior written permission of Com-Net Ericsson. C. Notwithstanding the obligations on disclosure and use set forth herein, Subscriber may disclose Confidential Information to third parties insofar as is necessary to satisfy a proper court order, subpoena, litigation discovery demand or administrative or regulatory proceeding order, provided that Subscriber promptly notifies Com-Net Ericsson in writing of such order or demand prior to any disclosure and takes advantage.. of all available and appropriate measures to prevent further disclosure of the Confidential Information. Com-Net Ericsson agrees that it is aware of subscriber's duty to comply with the requirements of the Texas Public Information Act. D. The provisions of this Section shall survive the expiration or termination of this Agreement. 11. FAILURE TO ENFORCE The failure of either party to enforce, at any time or for any period of time, any provision of this Agreement in accordance with its terms shall not be construed to be a waiver of such provision or of the right of such party thereafter to enforce each and every such provision. I ECR-5145 Rev J 3/1 T/00 12. GOVERNING LAW AND DISPUTE RESOLUTION A. Any and all Disputes (as defined herein) between or involving Com-Net Ericsson and Subscriber shall be resolved by arbitration conducted by three arbitrators in accordance with the commercial arbitration rules of the American Arbitration Association, and in accordance with applicable law and the express terms hereof. The arbitration shall be conducted in Dallas Texas. The decision of the arbitrators shall be reported with their written findings of fact and conclusions of law. The arbitrators shall use their best efforts to reach their decision within six (6) months from the date when the initial arbitration request is made. As used herein the term "Disputes" means any and all disputes, controversies, claims or causes of action of every kind, whether arising from any alleged breach of contract or warranty, tort, violation of law, right to equitable relief or other legal or equitable theory, in any way, directly or indirectly, arising out of or relating to this Agreement. Any arbitration must be commenced within one year from the date on which the cause of action accrued under applicable law or it shall be barred. B. This Agreement shall be governed by and construed in accordance with the laws of the State of Texas, excluding its rules pertaining to conflict of laws. Subject to the provisions of Subsection A, Subscriber consents to the personal jurisdiction of the state and federal courts in the State of Texas, which courts shall constitute the exclusive forum for all court proceedings involving the enforcement of this Agreement and the resolution of all Disputes related to the subject of this Agreement, whenever, - wherever and however arising, whether at law, in equity or otherwise and whether the Dispute involves an alleged breach of contract, violation of law or tort of any kind. C. Each party acknowledges that jury trials are slower and more expensive than court trials without juries, and, considering the complex nature of the technology and other issues which may give rise to Disputes, the parties agree that any court proceedings commenced by or against either party shall be resolved (subject to arbitration as provided herein) by a court without a jury, and each party waives its right to a jury as to any disputes or claims arising under or relating to this Agreement, whether for breach or enforcement of contract, tort or otherwise, including all Disputes as defined herein. 13. NO THM PARTY BENEFICIARIES; ASSIGNMENT The provisions of this Agreement are solely for the benefit of Subscriber and Com-Net Ericsson. No other person or entity is intended to be a beneficiary of nor is entitled to rely upon or enforce any of the provisions of this Agreement or to assert any claim for nonperformance of this Agreement by any party. This Agreement may not be assigned by either Com-Net Ericsson or Subscriber without the prior written consent of the other party. The provisions of this Agreement shall inure to the benefit of and be binding upon Subscriber and Com-Net Ericsson and their respective permitted successors and permitted assignees (if any). 14. NOTICES All notices required or permitted hereunder shall be in writing and shall be deemed validly given upon being hand delivered, or upon receipt if sent by facsimile or if mailed by certified mail, return receipt requested, to Subscriber at the address set forth in Schedule A or to Com-Net Ericsson at Mountain View Road, Lynchburg, VA, 24502, Attention: Software Services Group, or to such other address as either party may designate to the other in writing. ECR-5145 Rev J 3117100 15. ENTIRE AGREEMENT, EXECUTION AND MODIFICATION A. This Agreement contains the entire and only agreement between the parties concerning the subject matter hereof, and all prior representations and understandings in connection with the subject matter hereof are superseded and merged herein, and any representation or understanding not incorporated herein shall not be binding upon either party. B. This Agreement shall not become effective until signed on behalf of Com-Net Ericsson by one of its officers or by an executive duly authorized by Com-Net Ericsson's Vice President. No change, modification, ratification, rescission, or waiver of this Agreement or any of the provisions hereof shall be binding upon Com-Net Ericsson unless made in writing and signed on its behalf in like manner. C. COM-NET ERICSSON DOES NOT ASSUME ANY OBLIGATIONS OR LIABILITIES IN CONNECTION WITH THE SOFTWARE OR SERVICES OTHER THAN THOSE EXPRESSLY STATED IN THIS AGREEMENT, AND DOES NOT AUTHORIZE ANY PERSON (INCLUDING COM-NET ERICSSON'S EDACS RESELLERS OR EDACS STRATEGIC INTEGRATORS OR SUBCONTRACTORS OR SUPPLIERS) TO ASSUME FOR COM-NET ERICSSON ANY OTHER OBLIGATIONS OR LIABILITIES. IN WITNESS WHEREOF, and intending to be legally bound, the parties hereto have caused this Agreement to be executed by their duly authorized officers or representatives. COM-NET ERICSSON CRITICAL RADIO SYSTEMS SUBSCRIBER Name: By: �- Name: Tom Kegley Title: Technical Assistance Ctr. & Software Svcs., Mgr. O Date: 6- ozm� Com-Net Ericsson Critical Radio Systems, Inc. Mountain View Road y �chburg, VA 245 2 AI: K hie ell, City Secretary" APPROVED AS TO CONTENT .M -OA Sharlett Chownin g Information Technology Manager CITY OF LUBBOCK NameWindy Sitton Title: Mayor Date: June 20. 2000 APPROVED AS TO FORM: ��- 4 /D William de Haas Competition and Contracts Manager/Attorney ECR-S 145 - 1 3/17/00 This Page Intentionally Left Blank to ECR-5145 Rev J 3/17/00 •, Resolution No. 2000-R 0176 EDACS FX AGREEMENT SCHEDULE A 1. Term of EDACS FX Agreement The services, as described in the EDACS FX Agreement to which this Schedule A is attached, will be provided for the initial period beginning 06/15/00 and ending 06/14/01 and will be automatically renewed for one-year periods thereafter pursuant to Section 7 of the Agreement. 2. Designated System. The Designated System(s) for which the EDACS FX Agreement will apply is (are): System Name System Classification System Location City of Lubbock Single site w/dispatch Lubbock, TX including standalone SCAT and backup site ll ECR-5145 Rev 1 3/17/00 3. EDACS FX Fees The first -year EDACS FX Fee for the above Designated System(s) is as follows: System Name EDACS FX Option System Fee City of Lubbock SSSVID $50,000.00 (Annual) Optional 5 year commitment will include a 15% annual discount adjusting the annual fee to $42,500.00 Subscriber's subsequent years' EDACS FX Fees will be determined in accordance with Section S.A. of the Agreement. 4. Fiscal Year Billing Option If Subscriber requests billing for the first and subsequent years' EDACS FX Fees coincident with Subscriber's fiscal year, please indicate the fiscal year end date: in in dd If this option is selected, Subscriber's initial EDACS FX term will be from the effective date shown in Section 1 of this Schedule A through the next fiscal year end date and the first -year EDACS FX Fee will be prorated accordingly. 5. Designated Subscriber Contact(s) A. All notices regarding the EDACS FX Agreement to which this Schedule A is attached are to be sent by Com-Net Ericsson to: Contact's Name: Title: Address: (Do not use P.O. Boxes) Telephone: FAX No. Mark Yearwood 302 Municipal Drive Lubbock, TX 79403 806-775-2326 806-767-3085 12 I ECR-5145 Rev J 3/17100 s 4, B. All Software Updates to be provided by Com-Net Ericsson to Subscriber under this Agreement are to be sent to (if different than 5.A. above): Contact's Name: Company Name: Title: Address: (Do not use P.O. Boxes) Telephone: FAX No. (Same) (Note: EDACS FX Bulletins, announcing impending releases of EDACS software, will be sent to both of the above -designated contacts.) 6. This Schedule A is agreed to by: Seller: Subscriber Name: Com-Net Ericsson Critical Radio Systems City of Lubbock Mountain View Road Lynchburg, VA 24502 CITAY OF LUB13OCK By: By: q,��4 ed' Name: Tom Kegley Name: Title: Technical Assistance Ctr. & Software Svcs., Date: U — � v V AytST: arnell, City Secretary APPROVED AS TO CONTENT CAB"11� Sharlett Chowning Information Technology Manager . Title: Windy Sitton Date: Mayor June 20, 2000 APPROVED AS TO FORM: William de Haas Competition and Contracts Manager/Attorney 13 ECR-5145 Rev J 3/17/00 Y a City of Lubbock PURCHASE ORDER TD: COM-NETJRICSSON CRS INC- ,8450 ,PAN AMERICAN FWY NE ALBUQUERQUE NM 87113 Page - 1 Date - 9/01/00 Order No. - 185825-000 OP Brn/Plt - 3511 SHIP TO. - CITY OF LUBBOCK RADIO REPAIR SHOP 302 MUNICIPAL DR LUBBOCK TX 79403 Ordered 09/01/00 Freight - FOB Destination Frt Prepaid .Requested 09/18/00 Placed By - MORRISON, JACK Special 'Ins Attn: Richard Kirian Contract/Res #2000-R 0176 Description / Supplier Item Ordered UM Unit Cost UM Extension Req. Dt SOFTWARE; UPDATE AGREEMENT 1.000 EA 42,500.0000 EA 42,500.00 09/18/00 This purchase order encumbers funds In the amount of $42,500.00 awarded m-Net Ericsson CRS, Inc. In accordance with the City of Lubbock Contract dated June 20, 2000, Resolution No. 2000-110176. CI BBOCK ATT T- Windy Sittori, Mayor sylWe Do , City Secretary APPROVE AS TO F RM: illiam de Haas, Competition and Contracts ManagedAttomey Total Order Terms NET 30 DAYS 42,500.00 TERMS AND CONDITIONS IMPORTANT: READ CAREFULLY STANDARD TERMS AND CONDITIONS CITY OF LUBSOCK, TEXAS Seller and Buyer agree as follows: 1. SELLERTO PACKAGE GOODS Seller will package goods in accordance with food commercial practice. Each shipping contatner shad be clearly and permanently marked as follows (a) Sellers aame and address. (b) Comignee's same, address and purchase orderor purchase release number and die supply agreement number tfappliabk. (e) Container mtmber and total number of containers, e.g. box 1 of < boxes. and (d) the number ofthe container bearing the packing slip. Seller shall bear cost of packaging aaless otherwise provided. Goods shall be suitably packed to tecere lowest transportation costs and to conform with sequirerm as of common carriers and any applicable spedf cations. Buyer's count or wdght shall be final and conclusive on shipments not accompanied by packing Jim 2. SHIPMENT UNDER RESERVATION PROHIBITED. Seiler is not authorized to obip the goods sadcr reservation and so under of a bat of lad'mg will operate as a wader otgoods. 3. 711I E AND RISK OF LOSS. The title and risk of loss ofthe goods shall not pus to Buyer until 0 uyer actually receives and ekes possession ofthe goods at the point or points of delivery. 4. NO REPLACEMENT OF DEFECTIVE TENDER Everyunderafdeliveryofgaodsawst Ailly comply with all provisionns of this contract as to time of delivery, quality and the like. If a render is made which does not fulty eonfoms, dds shall constitute a bath cent Seller shall act have the dght to substitute a conforming tender. provided. where the time for patomuna has not yet expired, the Seller may reasonably notify Buyer of his intention to cure and may then snake a conforming tender within the contract time but act afterward. 3. INVOICES fit PAYME M a. Seller shall submit separate invoices. in duplicate. one each purchase order or purchase tetease after each delivery. Invoices shall Indicate the purchase order or purchase release number and die supply agreement number if applicable. fnvoias sballbe hemized and transportation charges, if any, shall be listed separately. A copy of the bill of lading, and the freight waybill when applicable, should be attached to the invoice. Mall To: Accounts Payable. City of Lubbock P. O. Box 2000. Lubbock. Texas 79457. Payment shalt not be due until the above insuumeats am submitted after detivery. of GRATUITIES. The Buyer nay, by written notice to the Seller, cancel this contract without liability to Seller if it is detrnnined by Buyer that gratuities, to the fort ofentectai ument, gifts or otherwise. were offered or given by the Setter, or any agent or representative of the Seller. to any ofiiar or employee of the City of Lubbock with a view to seeoring a contract or securing favorable treatment with respect to the awarding or amending, or the snaking army determinations with respect to the performing of such a contact to the event this contract is canceled by Buyer pursuant to this provision. Buyer shalt be entitled. in addition to any other rights and remedies, to recover or withhold the amount of die cost hearted by Seller in providing such Samh41L 7. SPECIALTOOLS k TEST EQUIPMENT. If die price stated on de face hereof Includes die cost of any special tooling or special test equipment fabricated or required by Seiler for die puupase of filling this order, such special tooling equipment and any process theca related thereto shag become the property of the Buyer and to the extent feasible shall be identified by die Selkras such. i WARRANTY -PRICE. a. The price to be paid by die Buyer shall be that contained in Seller's bid Whitt Seller warrants to be no higher tun Seller's current process on orders by others for products of de kind and specification covered by this agreement for similar quantities under similar of like condition and methods of purchase. In the event Seller benches this Warranty, the prices of the items shall be reduced to the Setters current prices on orders by other, or in die alternative Buyer may ancei this contract without liability to Seller for breach or Sellers b. The Seller warrants that no person or selling agency has been employed err retained to solicit or secure this contract upon an agreement or understanding for commission, percentage. brok cage. or contingent fee excepting bona fide employets of bona itde established commercial or selling agencies maintained by the Seiler for the purpose of teeuring batloesL For breach of viciation ofthis warranty the Buyer shall have the right in addition to any other sight ofsights to cancel this contract without liability and to deduct from the contract price, or otherwise recover without liability and to deduct from the contact price, or otherwise recover the full amount of such commission, pe .c. tare. brokerage or contingent fee. 9. WARRANTY -PRODUCT. Seller shall not limit or exclude any implied wymntles and my attempt to do so stall render skis contact voidable at the option ofthe Buyer. Sellerwarrsna that die goods furnished will eouform to the specifiatiem, drawings, and descriptions listed in the bid invitation, and to the sample(t) funned by the seller. ifany. is de event oh conflict or between the specifications, drawings, and descriptions, the specifications shall govem. Notwithstanding any provisions contained in die contractual &Mcniem, the Setter represents and warrants fauh•Uee performance aced fault -lice result in the processing date and date related data (including, but not limited to Calculating, Comparing and sequencing) ofan ltardwate, software and firmware products delivered and services provided under this Contract, Individually or in combination. as the an nuy be from de effective date of trait comruL Also. the Sellawamau the ycar2000 calculations will be recognized and setonuuadated and wM sot Jn any wsy, nnk ba hardware. softwam erfirmware hilum The City of Lubbock at Its sok option, may requite de Seller. at any tim4 to demonstrate the procedures it finend: to follow in order to comply with all the obligations contained herein. The obligations contained herein apply to products and services provided by the Sella. its sub.Selker or any third party t involved in the creation of development ofthe products and services to be delivered to the City of Lubbock under this Contact.. Failure to comply with any of the obligations contained lurein, may result In the City of Lubbock avaaing itself of any or its tights under the law and under this Contract including. but not limited to. its right pertaining to termination or default. The wsrraatxs contained herein are sepaaee and discrete from any otha warramia specified is this Contract and are not subject to any disclaimer ofwarranty, implied or expressed, err limitation ofthe Seller's liability which may be specified in this Com:act, its appendiem its ached, Im is annexes or any document incorporated in this Contract by refrtanee. to. SAFETY WARRANTY. Seller warrants that she product sold to the Buyer shall confmm to the standards promulgated by the U. S. Department of Labor under the Occupational Safety and Health Act of 1970. In the evens the product does not conform to OSHA standards, Buyer nay temrs the product for eometion or replacement at the Setter's expense. In the want Seller has to make the appropriate correction within a reasonable time, correction made by Buyer will be as the Setter's expense. It. NO WARRANTY BY BUYER AGAINST INFRl,%GEmElM As part ofthis contract ktr axle Seller agrees to ascertain wfiether goods manufactured in accordance with die sped&atkms Wa4zed to this agreement will give rise a the rightful claim ofany third person by way of infringement ofthe film. Bohr makes so warranty that the production of goods ateordiag to the tpedfuatiou wal not give rise m soch a olairn, and t4 ao went shad Buyer k liable m Seiler for htdemnituatton lot die went dart Setter is wed oa the g►ov,at of infringement of de b'ke- if Setter 4 of the opinion dart an infringement or the hl;e wal resuh. be wal notify the Buyer m this effect lot writing whhlri two weeks after die signing ofthts agrectaeat. !f Buyer does not receive aoihce and is subsequently held Gable for die hnftimgemem or tJu lrlce„ Seller wrll eve Buyer harudess. ifSelkr id goad faith aseeahts the ptodnctim otdu goods is aceordance w0h die specitications wal result 1a iaftingetaeot oc the late, the contract shall be nun and void. 12. RIGHT OF INSPECTION. Buyer shaft have die fight to inspect she goods at delivery before accepting them. 13. CANCELLATION. Buyer shag have the right to angel for defhutt all or any part of" undelivered portion of this order if Selter brachesany of the teru hesof including wa=dah of Seller or tribe Seller becomes insolvent or commits acts of bankruptcy. Such right of cancellation is in allkion to and not In lieu ofany other remedies which Buyer may have k law or equity. 14. TERMINATION. The performance of work under this order may be terminated in whole, or In part by the Buyer In accordance with ibis provision., Termination of work hereunder 31211' be effected by die delivery ofthe Seiler ofa "Notice ofTermination" specifying The extent to which performance of work under die order is enitinated and the date upon which such termination becomes effective. Such right or termination is is addition to and not in lies of fine tights ofBuyer set forth in Clause 13, herein. 15. FORCE MAJEURE. Neither party shall be held responsible for losses, resukfng If the fulfillment army terms ofprovisions ofthis contact k delayed or prevented by any cause not within die control ofthe party whose performance Is interfered with, and which by lie exercise efreasonable dilkv= said party Is unable to prevent. 16. ASSIGNMENT -DELEGATION, No right or interest 16 this contract slam be assigned or delegation army obligation nude by Seller without the written permission ofthe Buyer. Any attempted assignment or delegation by Seller shall be wholly void and totally ineffective for an purpose unless nude In conformity with this paragraph. 17. WAIVER No claim or right wising out ofa breach ofthis contact can be discharged in whole or to part by a waiver or renunciation ofthe claim or right unless die waiver or renunciation is supported by consideration sad is in writing signed by the aggrieved party. IL [INTERPRETATION -PAROLE EVIDENCE. This writing, plus any specifications for bids and performance provided by Buyer in its advertisement for bids, and any other document provided by Seller as part of his bid, is intended by de parties as a final expression of their agreement and intended also as a complete sad exclusive statement ofthe tern efdxir agreennent. Whenever a term defined by de Uniform Conuncrcul Code is used in ibis agreement, the definition contained in the Code is to control. 19. APPLICABLE LAW. This agreement shall be governed by the Uniform Commemial Code. Wacre ever the arms `Uniform Commercial Code" is used, it shall be construed as meaning the Uniform Commercial Code as adopted in the State of Texas as eifenive and In force on de . date ofthis agreement. 20. RIGHT TO ASSURANCE. Whenever one party go this contract in good hhh has reason to question the other party's Intent to pafomm he may demand that de other party give Armen assurance orbit intent to perform to the event that a demand is made Ind no assurance is given within rive- (S) days, the demanding party may treat this failure as an anticipatory repudiation ofthe contract 21. INDEMNIFICATION. Seiler shall Indemnify, keep and save harmless the Buyer, its agems, officials and employees, against all Wuries, deaths, loss, damages, claims, patent claims, wits. liab'titim judgments, costs and apemen, which may in snywiu accrue against the Buyer in consequence of the granting ofthis Contract or which may anywise result therefrom, wimether or sot it shall be alleged or determined dart the act was caused trough negligence or omission ofthe Seller or Its employees, or ofthe subSellcr or assignee or Its employees, [ally, and die Seller shall, at his own expense, appear. defend and pay all dines ofattumeys and all costs and other expenses arising therefkt in of incurred in connection therewith, and, if any judsment 44 be rendered sgdnu the Buyer la any such action, the Seller shall, at its own expensm misty and discharge die same Seiler expressly understands and agrees des any bond mqumd by this contract or otherwise provided by Seiler. Shall in no way limit die responsibility to indemft keep and save harmless and defend die Buytr as bercin provided. 22. TIME. It is hereby expressly agreed and understood that time it of the essence for the performance of this contract, and fiatme by extract to meet the time specification of this agreement will cause Setter to be lo default ofthis agreattent. 23. MBE The City of Lubbock hereby'notifhes all bidders that in regard to any contract entered logo pursuant to this request, minority and women business enterprises will be afforded equal opportunities to submit bids is response to this invitation and will not be discriminated against on de grounds of rue. color, sat or usual origin in cohstdcradon for an award. GSURCH31RMCOXMDOC