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HomeMy WebLinkAboutContract 2033~~° ~ oo south Highway 169 Onvoy Professional Services ~ Minneapolis, MN 55426 Agreement It's the firturea 952.230.4100 952.230.4200 fax sN - 2033 www.onvoy.com This Onvoy Professional Services Agreement ("Agreement"), dated 11/7/07 ("Effective Date") is between Onvoy, Inc. ("Onvoy"), a corporation organized under the laws of the State of Minnesota, with its principal place of business at 300 South Highway 169, Suite 700, Minneapolis, MN 55426, and City Of Columbia Heights (the "Customer"), with its principal place of business located at 590 40`h Ave NE, Columbia Heights, MN. 55421 (each a "Party," and collectively, the "Parties"). Check box if applicable: ^ This Onvoy Professional Services Agreement replaces and supersedes the Onvoy Services Agreement dated 1. SCOPE OF AGREEMENT. This Agreement sets forth the terms and conditions under which Onvoy agrees to provide the Customer with those services ("Service(s)"), listed in the Addendum(s) and Exhibits to the Addendums to this Agreement. Each Addendum and its related Exhibits shall contain a description of Services and pricing. In the event of conflict between the terms of this Agreement and the terms of an Addendum, the Addendum terms shall govern. 2. EXCLUSIVE BENEFIT OF NAMED PARTIES. The provisions of this Agreement and its Exhibits are intended for the exclusive benefit of the Parties named above and not for the benefit of any third party. 3. ENGAGEMENT AND SCOPE OF SERVICES. Customer hereby engages Onvoy to perform the professional services ("Professional Services" or "Services") set forth in one or more Addendum to this Agreement, each such Addendum being attached hereto and made a part hereof. The Services shall be performed in accordance with all of the terms contained in this Agreement, the Addendum, and any attached Exhibits. Customer acknowledges that the Services are being offered to Customer on anon-exclusive basis, and that nothing in this Agreement shall preclude Onvoy from providing similar services to other clients. 4. SERVICE FEES AND PAYMENT. (a) Customer acknowledges and agrees that Onvoy has the right to perform an investigation of Customer's creditworthiness prior to Onvoy's acceptance of this Agreement. This credit investigation may include contacting Customer's bank and trade references. Onvoy may require a deposit, letter of credit or alternative form of payment to reasonably satisfy its credit requirements. Notwithstanding the mutual dates of execution, the Agreement is expressly conditioned upon Onvoy's acceptance of Customer's creditworthiness. (b) The Customer agrees to pay Service Fees within thirty (30) days of the invoice date. All charges not paid within thirty (30) days will be assessed a late payment charge of one and one- half percent (1.5%) per month or the highest rate allowed by law, whichever is less. The Customer also shall pay, as an additional charge, any applicable sales and/or use tax. 5. CUSTOMER RESPONSIBILITIES. (a) Customer shall provide Onvoy, in a timely manner, with all information, data, and other requested materials (collectively, "Materials") reasonably required for Onvoy's performance of the Services. (b) During the term of any Addendum, Customer shall provide Onvoy with reasonable access to Customer premises, on-site workspace and equipment as necessary for Onvoy's performance of the Services. (c) Customer shalt appoint one or more Customer representatives responsible for facilitating Onvoy's performance of the Services, including, but not limited to, assisting Onvoy in gathering information, interviewing Customer personnel, and observing Customer systems and processes. (d) Customer acknowledges that Customer's failure to timely provide Onvoy with accurate Materials, and/or access to Customer personnel, equipment, and facilities, may adversely impact both the ability of Onvoy to deliver Services and the quality and timeliness of Services rendered. Onvoy shall not be responsible for deficiencies, errors, or delays in Services resulting from Customer's failure to timely provide Onvoy with accurate Materials, or access to personnel, premises, and on-site work space and equipment. 6. CUSTOMER POLICIES AND PROCEDURES. Onvoy agrees to abide by Customer policies and procedures, including but not limited to Customer's security measures, as advised by Customer relative to Onvoy's performance of the Services while on Customer's premises. 7. OWNERSHIP OF WORK PRODUCT; BACKGROUND TECHNOLOGY; AND TOOLS. (a) All material and work that Onvoy specifically creates for and delivers to Customer under this Agreement, including but not limited to any and all drawings, designs, documentation, software code, applications, methods, processes, working papers, reports, assessments, proposals, and recommendations (collectively "Work Product") shall be owned by Customer, and Customer shall have all rights, title, and interest therein, including the right to seek intellectual property protection for such Work Product or any portion thereof, whether patent, copyright, trademark, or trade secret protection. (b) All rights, title and interest in software programs, algorithms, techniques, methods and materials created or developed at anytime by Onvoy which are not developed specifically for Customer under this Agreement ("Background Technology"), but which may be used by Onvoy in creating Work Product for Customer, shall remain with Onvoy. (c) All rights, title and interest in any tools that Onvoy licenses from a third party ("Tools") which are used by Onvoy in providing Services under this Agreement, shall remain with the third party licensor. 8. REPRESENTATIONS AND WARRANTIES OF ONVOY. (a) Onvoy represents and warrants that the Services shall be performed in a workmanlike manner in accordance with generally accepted industry standards. For any breach of this warranty, Customer's exclusive remedy, and Onvoy's entire liability, shall be the re-performance of Services by Onvoy; provided, however, that Customer must report any deficiencies in Services to Onvoy in writing within thirty (30} days of Onvoy's performance of the respective Services in order to receive this warranty remedy. (b) EXCEPT AS PROVIDED IN SUBPARAGRAPH 8(A) ABOVE, THERE ARE NO WARRANTIES OF ANY KIND FOR ANY SERVICES OR WORK PRODUCT PROVIDED UNDER THIS Onvoy Proprietary and Confidential INTERIM Authorized Contract Template 5.4.06 1 of 3 .+~.'^i L` It's the future~~ Onvoy, Inc. 300 South Highway 169 Minneapolis, MN 55426 952.230.4100 952.230.4200 fax www.onvoy.com Onvoy Professional Services Agreement AGREEMENT, AND ALL OTHER WARRANTIES, EXPRESS network security, whether based upon a theory of breach of OR IMPLIED, ARE HEREBY DISCLAIMED, INCLUDING, warranty, breach of contract, negligence, or any other legal theory, WITHOUT LIMITATION, THE IMPLIED WARRANTIES OF even if Onvoy or its agent has been advised of the possibility of MERCHANTABILITY AND FITNESS FOR A PARTICULAR such damages. Onvoy's total liability to the Customer under this PURPOSE AND THOSE ARISING BY STATUTE OR Agreement will be limited to direct damages in an amount not to OTHERWISE IN LAW OR FROM A COURSE OF DEALING exceed the amount of Service Fees paid by Customer under this OR USAGE IN TRADE. Agreement for the Services giving rise to the liability during the most recent twelve (12) month period. 9. USE OF CONTRACTORS. Customer acknowledges and agrees that Onvoy shall have the right to use contractors ("Contractors") in Onvoy's performance of Services under this Agreement. Onvoy shall oversee all work done by Contractors and Onvoy shall be ultimately responsible for the performance of the Services hereunder. 10. CONFIDENTIALITY. (a) During the term of this Agreement, Onvoy and Customer may disclose to one another certain information proprietary to a Party's business and/or of a confidential nature, including but not limited to technical or business knowledge, know-how, discoveries, inventions, flow charts, algorithms, processes, software programs, hardware, schematics, drawings, data bases, specifications, trade secrets, and lists or other information related to the Parties' customers, all of which shall be considered "Confidential Information" under this Agreement. The terms of this Agreement and its Addenda and Exhibits shall also be treated as Confidential Information. (b) Confidential Information shall not include any information that (i) was lawfully in a recipient Party's possession before receipt from the disclosing Party; (ii) is or becomes available to the public through no fault of a recipient Party; (iii) is lawfully disclosed to the recipient Party by a third party without restriction on disclosure; or (iv) is independently developed by a recipient Party without using any of the disclosing Party's Confidential Information. (c) Onvoy and Customer agree to take reasonable steps to prevent the disclosure and availability of Confidential Information of the other Party to third parties, except that a recipient Party may share Confidential Information with recipient Party's employees or contractors who have a need to know and who have signed agreements with recipient Party protecting such information. Upon written request of a disclosing Party or upon termination or expiration of this Agreement, a recipient Party shall destroy (and certify as to said destruction) or return to the disclosing Party all tangible Confidential Information of the disclosing Party. (d) The confidentiality obligations of Onvoy and Customer shall survive any termination or expiration of this Agreement and shall continue for a period of five (5) years after such termination and expiration; however, at no time whatsoever, may a recipient Party use a disclosing Party's Confidential Information for any purpose except for the limited purpose of fulfillment of the recipient Party's obligations under this Agreement. 11. LIMITATION OF LIABILITY. In no event shall Onvoy or its suppliers be liable to the Customer or to any third parties for incidental, consequential, special, indirect, or punitive damages of any kind, including, but not limited to, damages arising from loss of data, loss of use, loss of profits or revenues, or breach of Onvoy Proprietary and Confidential INTERIM Authorized Contract Template 5.4.06 12. TERMINATION. (a) Either Party may terminate this Agreement or any Service provided under this Agreement for its convenience by giving the other Party ninety (90} days advance notice, unless there is a minimum Service Term set forth in one or more Addendums or Exhibits, in which event neither the Service nor the Agreement may be terminated without penalty before the end of the minimum Service Term. (b) Onvoy may terminate this Agreement or suspend Services hereunder at any time for cause upon: (i) Customer's failure to meet Onvoy's credit approval standards; (ii) Any failure of Customer to pay any undisputed amounts as provided in this Agreement; (iii) Any breach by Customer of any material provision of this Agreement continuing uncured for thirty (30) days after receipt of notice thereof; (iv) Any insolvency, bankruptcy, assignment for the benefit of creditors, appointment of a trustee or receiver, or similar event with respect to Customer; or (v) Any governmental prohibition or required alteration of the Services to be provided hereunder. (c) If Onvoy fails to cure a material breach of this Agreement within thirty (30) days of the date that Onvoy is notified of such breach by Customer, the Customer may terminate the Agreement for cause. (d) If the Customer terminates any Service under this Agreement for its convenience or if Onvoy terminates any Service under this Agreement for a default by the Customer, the Customer shall pay Onvoy: (i) all Service Fees incurred up to through the termination date, and (ii) a termination charge equal to seventy-five (75%) percent of the Service Fees for each Customer site for each month remaining in the Service Term after the date of termination. Customer acknowledges and agrees that although Onvoy's damages in the event of termination of Services are difficult to estimate, the foregoing is a reasonable estimate of such damages and is not a penalty. 13. NOTICE. All notices under this Agreement shall be in writing and be deemed given (a) on the day when delivered personally or sent by facsimile copy or electronic mail, provided receipt is confirmed; (b) on the next business day after being sent by overnight courier, provided receipt is confirmed; or (c) three (3) business days after being mailed via the United States Postal Service; provided, in all cases, notice is sent to the appropriate Party at the address set forth above, or at such other address as a Party may specify in writing. 2of3 ~. R`j Onvoy, Inc. ~ ~~ 300 South Highway 169 x ` w Minneapolis, MN 55426 ~• it s the firture°= 952.230.4100 952.230.4200 fax www.onvoy.com Onvoy Professional Services Agreement 14. GENERAL. (a) Assignment. Neither Party may assign this Agreement, in whole or in part, or assign any of its rights or delegate its duties under the Agreement without the prior, written consent of the other Party, which consent shall not be unreasonably withheld or delayed; however, either Party may assign this Agreement without the other Party's consent in connection with the sale or transfer of all or substantially all of its business. A permitted assignee shall assume all obligations of its assignor under this Agreement. Any assignment in contravention of the terms of this Agreement shall be null and void. (b) Entire Agreement. This Agreement and its Addenda and Exhibits contains the entire agreement of the Parties with regard to the subject matter of the Agreement and supersedes all prior or contemporaneous agreements and understandings, oral or written, between the Parties with respect to the subject matter contained herein. (c) Modifications in Writing. No modification or amendment of this Agreement shall be valid unless set forth in a writing signed by authorized representatives of each Party and only to the extent expressly stated therein. (d) Non-waiver. The failure of either Party to enforce strict performance of any provision of this Agreement shall not be construed as a waiver of its right to assert or rely upon such provision or any other provision of this Agreement. (e) Independent Contractors. The relationship of Customer and Onvoy is that of independent contractors. Nothing in this Agreement authorizes either Party to bind the other or to incur liability on behalf of the other, unless otherwise provided for in this Agreement or agreed by the Parties in writing. (f) Compliance with Laws. Each Party's performance under this Agreement shall comply with all applicable Federal, State, and local laws, rules, regulations, court orders, and governmental agency orders. Onvoy, Inc. 300 South Highway 169 Minneapolis, MN 55426 Signature: Printed Name: Title: Date: Onvoy Proprietary and Confidential INTERIM Authorized Contract Template 5.4.06 3 of 3 (g) Headings. The headings to the paragraphs of this Agreement are intended solely for the convenience of the Parties and shall in no way be held to explain, modify, amplify, or aid in the interpretation of the provisions hereof. (h) Severability. If a court or a governmental agency with proper jurisdiction determines that a provision of this Agreement is unlawful, the provision shall be stricken, and if the Parties can legally, commercially, and practicably continue this Agreement without the stricken provision, the remainder of the Agreement shall continue in effect. (i) Governing Law. This Agreement shall be governed by and construed in accordance with the laws of the State of Minnesota except for its provisions regarding conflicts of law, and except to the extent that federal communications law applies. Any court action arising from this Agreement shall be venued in Hennepin County, Minnesota, in either federal or state court, as is appropriate. (j) Force Majeure. With the exception of payment of charges due under this Agreement, a Party shall be excused from its performance if its performance is prevented by acts or events beyond the Party's reasonable control, including but not limited to: severe weather and storms; earthquakes or other natural occurrences; strikes or other labor unrest; nuclear or other civil or military emergencies; or acts of legislative, judicial, executive, or administrative authorities. (k} Legal Fees and Costs. In any action between the Parties to enforce any material provision of this Agreement, the prevailing Party shall be entitled to recover its reasonable attorney's fees, court costs, costs of investigation, and other related expenses incurred in connection therewith from the non-prevailing Party in addition to whatever other relief a court may award. The terms of this Agreement have been agreed to by duly authorized representatives of the Parties. Title _ C~ ~-Y~3° ` Date: ,~ ~~"% [ ~ ~ ~w- ~, It's the future' Onvoy, Inc. 300 South Highway 169 Suite 700 Minneapolis, MN 55426 952.230.4100 952.230.4200 fax www.onvoy.com Customer Premise Equipment ("CPE") Addendum to the Onvoy Professional Services Agreement 1. INCORPORATION OF AGREEMENT TERMS. The Onvoy Professional Services Agreement between the Parties dated 11/7/07 which the Parties may agree to amend or supersede by another Professional Services Agreement from time to time ("Agreement"} is a necessary part of this Addendum, and the terms and conditions of Service set forth in the Agreement are incorporated and adopted in their entirety into this Addendum. In the event of conflict between the terms of this Addendum and the terms of the Agreement, the Addendum terms shall govern. The Customer acknowledges that it has received and read a copy of the Agreement and agrees to be bound by its terms and conditions in addition to the terms and conditions contained herein. Check the box if applicable: ^ This Customer Premise Equipment ("CPE") Addendum shall replace and supersede the Customer Premise Equipment Addendum dated 2. PRICING; SERVICE TERM. (a) Pricing for Customer Premise Equipment ("CPE"), and/or CPE installation and configuration ("Onvoy CPE Install") shall be set forth in the Exhibits attached hereto and hereby incorporated by reference. (b) Should the Customer engage Onvoy for the Onvoy CPE Install Services said Services shall commence on a date mutually agreed to by Customer and Onvoy and shall continue until Onvoy CPE Install Services are completed and paid for, unless this Exhibit is earlier terminated in accordance with the terms of the Addendum to which this Exhibit is attached. 3. CUSTOMER PREMISE EQUIPMENT. (a) Onvoy Converged IP Services may require that the Customer purchase or license certain CPE, including hardware and software provided by Onvoy or third parties. Should the Customer purchase CPE from Onvoy, the Customer shall pay all charges associated therewith, including applicable shipping charges. Customer shall be billed by Onvoy for CPE upon Vendor notification to Onvoy of shipment or receipt of shipment of said CPE. Should the Customer purchase CPE from a third party, the Customer shall be solely responsible for the initial installation, configuration, operation, maintenance, use and compatibility with Services being provided by Onvoy of the CPE. In the event that the CPE or any equipment or software not provided by Onvoy impairs Customer's use of any Services, Customer shall nonetheless be liable for payment for all Services provided by Onvoy and any specifications generally applicable to the Services shall not apply. Onvoy shall not be responsible for the operation or maintenance of the CPE. The only warranties available to Customer shall be those set forth in the manufacturer's or publisher's warranty or end-user license applicable to such CPE. (b) REPRESENTATIONS AND WARRANTEES OF ONVOY. (a) Onvoy represents and warrants that its Services, including Onvoy CPE Install if applicable, shall be performed in a workmanlike manner in accordance with generally accepted industry standards. For any breach of this warranty, Customer's exclusive remedy, and Onvoy's entire liability, shall be the re-performance by Onvoy; provided, however, that Customer must report any deficiencies to Onvoy in writing v~ithin thirty (30) days of Onvoy's performance in order to receive this warranty remedy. (c) EXCEPT AS PROVIDED IN SUBPARAGRAPH S(A} ABOVE, ONVOY SHALL HAVE NO WARRANTY OBLIGATIONS OF ANY KIND REGARDING CUSTOMER PREMISE EQUIPMENT, ONVOY CPE INSTALL SERVICES AND WORK PRODUCT PROVIDED UNDER THIS ADDENDUM, AND ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, ARE HEREBY DISCLAIMED, INCLUDING, WITHOUT LIMITATION, THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE AND THOSE ARISING BY STATUTE OR OTHERWISE IN LAW OR FROM A COURSE OF DEALING OR USAGE IN TRADE. (d) RETURN POLICY. Onvoy's CPE Return Policy. The Customer agrees to comply with Onvoy's CPE Return Policy in place as of the Effective Date of this Addendum. Onvoy's CPE Return Policy, which Onvoy may revise from time to time in its discretion, is posted at Onvoy's web site located at htto:/iwww. onvov. comlretu rns. (e} OUT OF POCKET EXPENSES. Customer shall reimburse Onvoy for Onvoy's mileage expenses for travel reasonably incurred. All other Onvoy requests for out of pocket expense reimbursement shall require the advance written approval of an authorized Customer representative. (f) TRANSFER OF TITLE. Customer ownership of CPE begins when the Vendor ships the CPE. 4. USE OF CONTRACTORS. Customer acknowledges and agrees that Onvoy, in its discretion, shall have the right to use contractors in Onvoy's performance under this Addendum; provided, however that Onvoy shall oversee all work done by contractors and Onvoy shall be ultimately responsible for the performance hereunder. 5. PURCHASE ORDERS. Should the Customer want to purchase additional equipment, the Customer may issue a Purchase Order or sign a new Customer Premise Equipment Pricing Exhibit. Should the Customer choose to issue a Purchase Order, the Customer agrees to abide by the following: (a} should a conflict in terms arise, the following shall depict the order in which terms and conditions shall govern: the Professional Services Agreement, Customer Premise Equipment Addendum, Customer Premise Equipment Pricing Exhibit, Customer Purchase Order; (b) Customer shall obtain a quote from an authorized Onvoy representative for the additional equipment and attach the quote to the Purchase Order. (c) a new Purchase Order and Onvoy provided quote will be required each time an additional purchase is requested by the Customer. The terms of this Addendum have been agreed to by duly authorized representatives of the Parties. Onvoy, Inc. 300 South Highway 169 Suite 700 Minneapolis, MN 55426 Printed City of Columbia Heights 590 40`h Ave NE Columbia Heights, MN. 55421 .~. Onvoy Proprietary and Confidential Page 1 of 1 Onvoy Authorized Contract Template 10.1.07 ., ,,:r a k~:~- 7 m ;~~~~ 300 South Highway 169 Professional Services ~ Minneapolis, MN 55426 ~_ _ 962230.4,00 CPE Pricing Exhibit It~S tl~le f~L1tLtI'~" 9sz.z3o.a2oo rax www.onvoy.com Exhibit to the CPE Addendum ,dated i imo~ to the Onvoy Professional Services Agreement between Customer and Onvoy is effective as of the last date .;tive as of the last date signed below and shall supplement or modify, as the case may be, the Addendum and the Agreement to the extent set forth below. Site # 1 Site # 3 Site Name: City of Columbia Heights Site Name: Site 3 _ Address: 590 40th Ave NE Address: City: Columbia Heights______ State: MN Zip: 55421 City: State:_ Zip: ___ Service Service Service Service Oty Product Type Term Price OtY Product Type Term Price 2 WS-C3560-24PS-S SMARTnet24x7x4 1-yr $ 6,036.60 7 ATA186-12-A $ 1,225.00 13 Polycom 330 2-line IP Phone w/PoE E, AC Power $ 1,681.55 1 Polycom 601 6-line IP Phone w/110V pwr $ 259.35 14 Hr Installation, Configuration and Travel Time Site # 2 Site Name: 0 Address: __ Citv: Service u.- Product Type $ 2,100.00 TOTAL ~L'-.5'~ iie: Zip: Service Term Price TOTAL Site # 4 Site Name: Site 4 Address: City: Oty Product Service Service Type Term Price TOTAL ~ TOTAL Except as set forth in this Exhibit, all existing provisions of the Addendum and Agreement shall remain in force as originally written. The terms of this Exhibit are hereby agreed to by duly authorized representatives of the Parties. Onvoy City of Columbia Heights 300 South Highway 169 590 40th Ave NE Suite 700 Minneapolis, MN 55426 `' ~' .vi °'` ' ~ ~'< ,.. ~,~, o~~c~~W rr•s ~ future- Onvoy, ina. . 300 South Highway 169 Minneapolis, MN 55426 952.230.4100 852.23©.4200 fax www.onvoy.com 14. GENERAL (a} Assignment. Neither Party may assign this Agreement, in whose or in part, or assign any of its rights or delegate its duties under the Agreement without the prior, written consent of the other Party, which consent shah not bs unreasonably withheld or delayed; however, either Party may assign this Agreement without the other Party`s consen# in connection with the sass or transfer of ail or substantially ali of its business. A permitted assignee shall assume all obligations of its assignor under this Agreement. Any assignment in contraveriffon of the farms of this Agreemerot shall be null and void. (bj Entire Agreement. This Agrsemeni and its Addenda and Exhibits contains the entire agreement of the Parties with regard to the subject matter of the Agreement and supersedes ail prior or contemporaneous agreements and understandings, arat or written, between the Parties with respect to the subject matter contained herein. (c) Modifications in Writing. No modification or amendment of this Agreement shall be valid unless sat forth in a writing signed by authorized representatives of each Party and only to the extent expressly stated therein. (d) Non-waiver. The failure of either Patty to enforce strict performance of any provision of this Agraemerrt shat! not be construed as a waiver of its right to assert or rely upon such provision or any other provision of this AgresmeM. (e} Indeperxisnt Contractors. The relationship of Customer and Onvoy is that of independent contractors. Nothing in this Agreement authorizes either Party to bind the other or to incur iiabillty on behalf of the other, unless otherwise provided for in this. Agreement or agreed by the Parties in writing. {f} Compliance with Laws. Each Party's performance under this Agreement shah comply with all applicable Federal, Stets, and local laws, rules, regulations, court orders, and governmental agency orders. C3nvoy Professional Services Agreement (g} Headings. The headings to the paragraphs of this Agrsemeni are intended solely for the canvenisnce of the Parties and shah in no way be held to explain, modify, amplify; or aid in the interpretation of the provisions hereof:. (h} Severabii'rty. If a court or a govemmental agency with proper jurisdiction determines that a provision of this Agreement is unlawfiul, the provision shad be stricken, and it the Parties can legally, ccmmerciaily, and prac#icably continue this Agreement without the stricken provision, the remainder of the Agreement shall continue in effect. {i) Governing Law. This Agreement shaii be governed by and construed in accordance with the laws of the State of Minnesota except for its provisions regarding conflicts of law, and except to the extent that federal communications saw applies. Any court action arising from this Agreement shaii be venued in Hennepin County, Minnesota, in either federal ar stets court, ss is appropriate. (j) Force Majeure. With the exception of payment of charges due under this Agreement; a Party shall bs excused from its performance if its performance is prevented by acts or events beyond the Party's reasonable control, including but not limited to: severe weather and storms; earthquakes or other nature! cxxurrsnc:es; strikes or other faboc unrest; nuclear or other civil or military emergencies; or acts of Isgisla#tve, judicial, executlvs, or administra#ive authorities. (k} Legal Fses and Costs. in any action between the Parties to enforce arty material provision of this Agreement, the prevailing Party shah be entitled to recover its reasonable ettomey's fees, catrt cos#s, costs of investigation, and other related expenses incurred' in connection therewith from the non-prevailing Party in addition to whatever other relief a court may award. The terms of this Agreement have bean agreed to by duly authorized representatives of the Parties. Onvoy, inc. City OfhCoiumbia Heights 300 South Highway 169 580 40' Ave NE AHin #is, MN 55426 Columbia Heights, ~ifN. 55421. G..-. a+,..G''~ Signature: Slgnature• Printed Name: Printed Name: __s~f ~~~ - Tilts: Qate: This. ~N ~' Date• Onvoy Proprietary and Confidential INTEEtIM Authorized Contract Ternpiate 5.4.06 ~~' q;j a.-~'"' 3of3 v"" jj Onvoy, inc. 1 /'~~~~ T('}~® 300 South Highway 16g It's the future- Mi~ir,~e ~ Customer Premise Equipment apolis, MN 55426 ("CPE") Addendum @52.230.41 ~ 952.230.4200 fax to the Onvoy Professioni3i Services Agreement w,ruw.onvoy.~-s 1. INGORPORATiflN OF AGREEMENT TERMS. Tha Onvoy Professional. S~vtrres Agreement between the Parties. dated 11(7107 which the Parties may agree to amerxt or supersede by. another. Prafessionat Services Agreement Pram time to time t; Agreement) is a necessary part of this Addendum, and the farms. and conditions of Senrice set forth in the Agreement are incorporated and adopted in their entirety into thts Ad~ndum, in the event of conflict between the terms of this Addendum and the terms nt fife Agreement, the Addendum terms shad govern. The Customer acknowledges that ti has recehred and read a copy of the Agreervrent and agrees to be bound by its tarns and conditions Mr addition to the terns and condtiions contained herein. Ghedr the box if applicab/e: ^ This Customer Pr~tlse Equipment {°CPE°} Addendum shati replace and supesede the Customer Premise Equipmem Addendum dated 2. PRICING; SERVICE TERM. (a} Pricing for Customer Premise Equipment {"CPE"}, . andlor CPE instailatian and contiguradon {°Onvoy CPE Instaii'~ shaft be set Earth in the ErJ~bi~ attached hereto and hereby incorporated by reference. (b) Should the Customer engage Onvoy for the Onvay CPE install Ssrvicxrs said Setvir~as shalt cammenos ~ a data mutually agreed to by Customer and Onvoy and shah continue until Ornroy CPE install Services are carnpieted and paid for, unless this Exhibit is earfier terminated in accordance with the temrs of the Addendum to which this ExhilNt Is attached. 3. CUSTOMER PREMISE EQUIPMENT. (a} Onvoy Converged IP Servtcx+s may require that the Customer .purchase or ifosnse certain CFE, including hardware and software provided by Onvoy or third parties. Should the Customer purohase CPE from Orrvoy, the Customer snail pay afl charges associated therewith, Inducting applicable shipping charges. Customer shalt be broad by Onvoy for CPE upon Vendor notifkratiorr to Omoy of sh'~rrrent or receipt of shipment of said CPE. Should the Customer purchase CPE from a tttird party, the Customer shati be solely responstisie far the initial instailatian, configuration, operation, maintenance, use and cxrmpatllNlity wtth Services being provided by Onvoy d the CPE. In the event tha# the CPE or any equipmsm or software not provi~d by Onvoy impairs Customer's use of any Services, Customer shall nonetheless Ire tiab[e for payment for ant Services provided by Onvoy and any spedticatlons generalfy appticabia to the Services snail not apply. Otrvoy shah not be responsible for the operatkn or maintenance d the CPE. The only warranties available to Custaner shah be those ant forth ~ the manufecturar's or publisher's warranty orend-user licence appiiaeb~ to s~v CPE. (b) REPRESENTATIONS AND WARRANTEES OF ONVOY. {a} Onvoy represents and warrants that Its Services, including Ornoy CPE install if applicable, shah be performed in a workmanlike mariner in acxsordance with generally accepted industry standards. For arty breach of this warranty,, Customer's exclusive remedy, and Onvoy's emirs liability, shay be the re-performance by Orwoy; provided, however, that Customer must. report any deficiencties to Onvoy m writing within thirty (30) days of Onvoy's performance in order to rerxih~e this warranty remedy. {c} EXCEPT AS PROVIDED IN SUBPARAGRAPH 8(A) A8OVE, ONtfOY SHALL HAVE NO WARRANTY OBLIGATIONS OF ANY KIND REGARDING CUSTOMER PREMISE EOUIPMENT, ONVOY CPE INSTALL SERVICES AND WORK PRODUCT PROVIDED UNDER THIS ADDENDUM, AND At.L OTHER WARRANTIES, EXPRESS OR MiIPLtED, ARE HEREBY DISCtAiMED, INCLUDING, WITHOUT LIMITATION, THE IMPLIED WARRANTIES OF MERCHANTASIUTY AND FITNESS FOR A PARTIWLAR PURPOSE AND THOSE ARISING BY STATUTE OR OTHERWISE IN I.AW OR FROM A COURSE OF DEALING OR USAGE IN TRADE. (d} RETURN POLICY. Onvoy's CPE Retrxn Policy. The Customer agrees to comply with Ornoy's CPE Return Policy± in place as of the EHectlva Data of thisAddendum. Onvoy's CPE Return Policy, which Ornoy may revise from time to time in its discretion, is pasted at Onvoy's web efts located a# h~to-itwww anvov carn/retums. (e} OUT OF POCKET EXPENSES. Customer shall reimburse Onvoy for Onvoy's mikrage expenses for travel reasonably incurred. Ail other Onvoy requests for out of pocket expense rntmbursement shall require the advance wrriten approval of an autliorized Customer representati<re. (f) TRANSFER OF TITLE. Customer ownership of CPE begtns when the . Vendor ships the CPE. 4. USE OF CONTRACTORS. Customer acknowledges and agrees that Onvoy, in its discreNcm, shall have the right to use contractors ~ Onvoy's per#ormance under this Addendum; provided, however that Ornay shall, oversee ati work done by conirectors and Omoy shall be uiGmateiy responsible for the perfonnanre hereunder. 5. PURCHASE ORDERS. Should the Customer wain to purchase addftkxrai equipmerrt; the Customer may issue a Purchase Order or sign a raw Customer Premise Equipmen# prising Exhibft. Should the Customer choose to issue a Purchase Order, the Customer agrees to abide by ti're foitowing: (a) should a corrfiici in terms arid, the folb+Mng anent depict the order in whicft terms and rrondidons shad govsrm. Ina Prntessianal Services Agreement, Customer Premise Equipment Addendrxn, Customer Premise Equipment Pricing Exhibit, Customer Purdrase Order, (b) Customer shat! obtain a quote from an authorized Onvoy representative for the addNional equ~mem and attach the quote to the Purchase Order. (c} a rs3w Purchase Order and Onvoy provkled quota will ba required each Inns an additional purchase is requested by the Customer. The terrns of thk Addendum have bean agreed to by duty authorized representatives of the Parties. Onvoy, ino. 300 South Highway 169 Suits TIED Mlnneapoiis, MN 55426 Primed f~~"' Onvoy Proprietary and Corrfidentia! Orwoy Atrtftorfzed Contract Template 10.t.07 Page 1 of i ~lln'~~ \> City of Columbia Heights 590 40m Ave NE Columbia Heigtrta, MN. 55421 Professional Services ,„~ ~~ ~~:. "'~5~ CPE Pricing Exhibit, t~ k ~ 6182?30A1o0 ~ F~ ;FLitu~r>~ It s rye . : . This Ext9bk io fire CPE Addendum ,dated ,; r r, ~ '; to the Onvoy Prof~sionat Services Agreemerd taetween Customer and Urrvoy is effective a3 of the last date eif~iive ass of the last date sigrred below and ~~i ~spisrneni or madtty. sa L`se case maq be, the Addendum atxf fhe AOraetnenf to iha ex!erk sa! #oAh below, g~ ~ t S(te 0 3 l Hei~s _ : Ske 3 E _ h ~ _ "~' ~ Stata:i;AN ~ty: G4iurnt}~~ h g t Z~p• 55421 ' i . ;i• Stata__ Zfp: Ckyre - Service Service Serviu~ Service pty Produc4 Typa Term Price Oty Product Type Tenn Prirrro 2 WS-C358t>•24PS-S ,, SMAtxi"net24XTx4 1-}rc $ 6,038.86 7 ATA188-12-A $ 9,225:00 i3 Potycom 336 2•kne IP Phone wR'oE & AC Power ffi 1,SBtSS 1 Polycom 801 e-kne IP Phorre wCt tOV pwr $ .259.35 14 Hr Inataka8on, Corrkguration amt Travel Tinre $ 2,100.06 Site Y 2 Ske Name: 0 TOTAL ~ Address Cky. ,. _- Stated Tip:'` Service Service Qty Product Type Tsrm Price TOTAL TOTAL .. Site N 4 Ske Nome: Ske 4 __~ ~ Addr~ Cky: ? State:^_ Zip: service Service Qty Product Typa Tmm Prime TOTAL F_xcepi as set forth in this Exhibit, ail exiaHrgi provleions of the Addendum and Agreemerd shek remain In force ae ori~naliy written. The terms of this F.xh9~it ara,hereby agreed to by duty autlmrized rePresentafRvas of ttw Parties. On,,,roy City of CoWmbfa Hrights 300 South Highway 189 590 40th Ave NE Suite 700 Cofumb~ Harts, tiAN. 5 21 6R4rnespolis, MN 55428 ,r Si ture i ~_~ / ' " ~ ~ SigneturA ... M ~ ` ~ --~- ~ "mob- '2 ~ r '~'~ / r te- - - Pnnted Name ~ -- f~`-- .17 ~~ J f~D:~~ - Pnrited Name ~ ~~' QFc~ ~~ ' Title /~ Tfke _ _ f7ate ---- Date ~~~~~~ ~.~