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HomeMy WebLinkAbout2007-288 LEVEL 3 SERVICE AGREEMENT This Service Agreement ("Agreement") is made and executed by and between Replay Systems, Inc. (`Replay") and Indian River County, a political subdivision of the State of Florida (hereinafter referred to as "Purchaser'). WHEREAS, Purchaser has purchased the equipment identified on the attached Appendix 2 (the "Equipment"), and desires a service contract in connection with same, and WHEREAS, Replay is in the business, among other things, of servicing items such as the Equipment, and WHEREAS, Purchaser is desirous of obtaining from Replay, and Replay is desirous of providing, a service contract for the Equipment, on the terms and conditions contained herein. NOW, "THEREFORE, in exchange for the mutual promises, covenants, and consideration described herein. the parties hereto agree as follows: 1 . RECITALS The foregoing recitals are true and correct, and are incorporated herein by reference. 2 TERM The term of this Agreement (the "Term") shall be for a period of one ( 1 ) year commencing on 10/01/07 and terminating on 09/30/08, and shall automatically renew on the same terms and conditions, on an annual basis, for successive one (1) year terms unless either party notifies the other in writing of its intention not to renew at least thirty (30) days prior to the expiration of a Term. 3. SERVICE For the services described herein Purchaser shall pay Replay a service fee (the "Service Fee") of $7.910.00 per year (provided, however, that for each one ( 1) year Term after the first one ( I ) year Term hereof, the Service Fee shall be subject to a cost-of-living increase of no greater than five percent (5%) of the Service Fee for the immediately preceding one (1 ) year Term). Replay agrees to provide 24 hour telephone consultation, 365 days a year, for service questions regarding the Equipment. Replay agrees to provide to Purchaser local on-site service for repair of known or suspected failures of the Equipment during the Term, Monday through Friday, 8:00 a.m. through 5 :00 p.m., local time, except for those holidays listed in Appendix I . Replay service technicians dispatched by the Replay service headquarters shall arrive at the Purchaser' s place of business within one ( 1 ) business day from notification by the customer of a known or suspected failure of one or more pieces of the Equipment. Replacement parts for the Equipment, if needed as a result of normal wear and tear or a defect in the Equipment, will be furnished and installed by Replay service personnel at no extra charge. The parts replaced shall become the property of Replay. If parts must be replaced due to causes other than defects or normal wear and tear. Replay shall charge, and Purchaser shall pay, the price in effect at the time for such parts and all reasonable expenses associated with Replay's cost to replace said parts. Replacement parts (whether component parts, assemblies, subassemblies, or otherwise) may consist, in whole or in part, of new or refurbished items, at Replay' s option. In the event that a required part is not locally available and the failed part cannot be repaired by the local Replay service technician, parts will be shipped immediately by Replay or its supplier via 24-hour express service to arrive the next business morning (Monday through Friday), contingent on such notice being provided prior to 4:00 p.m. Eastern time. When notification is received after this time, the parts will be shipped no later than the following business morning. Replay shall deliver and install. at no additional cost, hardware and software Field Engineering Change Orders on the Equipment. Under this Agreement. Replay resolves to work toward giving your Equipment availability approaching 100%. To do this, Replay may, based on technical judgments made by Replay' s service personnel, request to be able to monitor machine functions via its Remote Diagnostic Facility ("RDF"), but always with prior knowledge, approval, and cooperation of Purchaser. At such time. Replay may also make changes to the resident software, but never in a way 1 ss/rep lay. serviceag. 10.7.03 Revised : 11 /06/06 that would knowingly disrupt normal operations, violate security, or disturb Purchaser's records. In addition, Replay may, from time to time, recommend and initiate replacement of suspect component parts at no expense to Purchaser, but with Purchaser's planned cooperation regarding replacement work. This will always be done with every intention of minimizing disruption. Finally, if Replay deems it advisable for a manufacturers service technician to visit and perform machine or operational remediation on-site, such a trip will be initiated by Replay, but with the full knowledge and cooperation of Purchaser. If such a visit is necessitated as a result of Equipment defect or normal wear and tear, the full expenses for such visit, including per diem, living expenses and all incidental costs relating either to the trip or the service work, will be the responsibility of Replay, with no cost to the Purchaser. In all other instances. Purchaser shall bear all costs and expenses associated with the visit. Purchaser shall maintain on-site environmental conditions as specified by Replay on-site representatives. These conditions will be within the common environmental range of all system components. 4. TITLE Title to all documentation and software relating to the Equipment shall remain with Replay or its supplier, as applicable. Purchaser, as licensee, acknowledges that all such documentation and software are proprietary and confidential, and will hold in confidence all such information, as well as information concerning maintenance and diagnostics. Purchaser shall have the right to use such software as long as Purchase owns the Equipment to which the software relates, and agrees to hold in confidence all technical and trade secret information including, without limitation, the content of and information relating to software, including source code, object code, software updates supplied by Replay in respect thereto, all subsequent modifications of code made by Replay pursuant to maintenance and/or diagnostic evaluation, and all documentation relating to any of the foregoing. Purchaser ensures that access to such information will be limited to employees who must have access to use the Equipment effectively. The terms, provisions, and obligations of this section 4 shall survive the termination of this Agreement. 5. EXCLUSIONS Replay' s services to the Purchaser hereunder do not include: a. Electrical work external to the Equipment; b. Maintenance of accessories, attachments, machines, or devices other than the Equipment and/or not furnished by Replay; C. Repair of damages resulting from: accident, neglect, negligence, intentional conduct, or misuse; fluctuations of temperature or humidity; failure of electrical power; lightning; causes other than ordinary use; or maintenance or repair of the Equipment by persons other than Replay personnel or its authorized representatives; d. Painting or refinishing, making changes or modifications unrelated to a failure of the Equipment, or performing services connected with relocation of Equipment; e. Adding or removing accessories, attachments, or other devices: f. Services rendered impractical due to alterations to the Equipment or because of electrical or other connections to the Equipment not supplied by Replay; g. Any products or accessories deemed disposable items (i.e., headsets, UPSs, tapes, DVDs, phone couplers, logger patches) h. Any items or services not specifically described in section 3 , above. 6. CHARGES Charges for services provided under this Agreement are invoiced on an annual basis and are payable by Purchaser upon receipt of invoice. All other charges hereunder are likewise payable by Purchaser on receipt of invoice. Invoice amounts not paid by Purchase within thirty (30) days from the date of invoice shall be deemed delinquent, and shall be subject to a finance charge at the rate of 18% per annum, or the highest rate allowed by applicable law, whichever is lower. Furthermore. Replay's obligations hereunder during the Term, and during any renewal thereof, shall commence only after receipt of full payment by Purchaser of the invoice for said Term, and Replay may suspend service hereunder during any period in which payment of any invoice is delinquent. If the continuity of coverage under this Agreement (or between the date of termination of the original manufacturer' s warranty and the date of commencement of the initial Term of this Agreement) is interrupted or suspended due to non-receipt of payment from the Purchaser, or for any 2 ss/replay.serviceag. 10.7.03 Revised: 11 /06/06 reason other than an action or omission on the part of Replay, Replay may require an on-site evaluation of the Equipment to determine the condition of the Equipment before continuation of this Agreement goes into effect. The cost of parts, labor, and travel to conduct such an evaluation, and all expenses incurred in order to return the Equipment to serviceable standards of operation as deemed necessary by Replay, will be responsibility of Purchaser. 7. GENERAL a. Replay's obligations hereunder are subject to delays caused by labor difficulties; fires; casualties and accidents; acts of the elements; acts of a public enemy; transportation difficulties; inability to obtain its equipment materials, or qualified labor sufficient to till its orders: government interference or regulations; and other causes beyond Replay's control. b. Any or all of Replay`s rights or obligations under this Agreement may be assigned by Replay with notice to the Purchaser, and, on such assignment. Replay shall be release of all obligations hereunder, which obligations shall be the responsibility of the assignee thereof. C. Replay reserves the right to modify or delete any term of this Agreement effective as of any anniversary date of the Agreement by giving at least thirty (30) days prior written notice to Purchaser. Purchaser may then elect to accept the Agreement with such modification(s) or deletion(s), or to terminate the Agreement. Failure by the Purchaser to terminate this Agreement in writing within the thirty (30) day notice period shall signify acceptance of the Agreement as amended. d. This agreement may be entered into and/or modified only by Replay' s President and an authorized representative of Purchaser. Purchaser represents and warrants that the person executing this Agreement on behalf of Purchaser is duly authorized to take such action on behalf of Purchaser. e. LIMITED WARRANTY AND LIMITATION OF LIABILITY. REPLAY' S LIABILITY TO PURCHASER HEREUNDER FOR DAMAGES OF ANY NATURE, WHETHER IN CONTRACT OR TORT, INCLUDING NEGLIGENCE, SHALL BE LIMITED TO, AND SHALL NOT EXCEED, THE MAXIMUM TOTAL CHARGES PAID OR PAYABLE BY PURCHASER TO REPLAY FOR SERVICES DURING ANY ONE YEAR UNDER THIS AGREEMENT. THIS IMPLIED WARRANTY AND LIMITATION OF LIABILITY IS IN LIEU OF ANY AND ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING WARRANTIES OF "MERCHANTABILITY" OR " FITNESS FOR .A PARTICULAR PURPOSE." IN NO EVENT SHALL REPLAY BE LIABLE FOR ANY LOSS OF DATA, NOR FOR LOST PROFITS, NOR FOR SPECIAL, CONSEQUENTIAL, OR INDIRECT DAMAGES. f No action arising out of or relating this Agreement, whether in contract or tort, including negligence, maybe be brought by either party more than ( I ) year after the cause of action accrues; provided, however, that any action for nonpayment may be brought at any time within the applicable statute of limitations period. g. Any controversy arising from this Agreement shall be governed by the laws of the State of Florida, and the litigation of any disputes arising out of this Agreement shall occur in the appropriate state or federal court located within the Southern District of Florida. This Agreement replaces and supersedes any previous service agreement between the parties, and constitutes the entire Agreement between the parties with respect to the subject matter hereof. IN WITNESS WHEREOF, the parties have executed this Agreement by their duty authorized representatives on the day and year set forth below. ) SELLER: PURCHASER: - REPLAY SYSTEMS. INC. Indian River County% ce 6555 N. P INE RD., STE 05 1840 25'h Street _ u>i FORT LA - ERD - LE, 9 Vero Beach, FL 32960 - 1 y O . o BY: BY: ` • I' 1 1 I— — m < SCO HURLEY PRESDENT PRINTED NAM /TITLE: Gary , C . Wheeler , Q ' YZ pr �� O Chairman D I DATE: V DATE: 09 /04 / 07 < O . nnnwt� T Q jU J ; tf 1K. Banton, Clerk a Z w 0 ss/replay.serviceag. 10. 7.03 Q ca Revised: 11 ,106/06 „ Deputy Clerk Countv Administrator APPENDIXI HOLIDAY SCHEDULE Holiday New Year' s Day President' s Day Good Friday Memorial Day Independence Day Labor Day Veteran's Day Thanksgiving Day Day After Thanksgiving Christmas Eve Christmas Day 4 ss/replay.serviceag_ 10.7.03 Revised: 11 /06/06 APPENDIX It Nice Wordnet Series 2 Recording System located at the Indian River County Sheriff's Office ssireplay.serviceag. 10.7-03 Revised: 11 /06/06