HomeMy WebLinkAbout2009-223B � lay
LEVEL 2
SERVICE AGREEMENT
This Service Agreement ("Agreement') is made and executed by and between Replay Systems, Inc . ("Replay")
and Indian
River County ( 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 /09 and terminating
on 09/30/10, 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 $2 ,521 .00 per
year
( provided, however, that for each one ( 1 ) year Term after the first one ( 1 ) 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.
Replacement parts for the Equipment, if needed as a result of normal wear and tear or a defect in the Equipment,
will
be furnished at no extra charge and installed by Purchaser ' s personnel . 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.
Replay agrees to provide local on-site service to Purchaser Monday — Friday, 8 : OOam — 5 : OOpm, local time, except
for
holidays listed in Appendix I when necessary at an additional charge. Replay Service technicians dispatched
by
Replay Systems ' Headquarters are to arrive at the Purchaser ' s place of business within 24 hours from notification
by
the customer of a known or suspected failure of one or more pieces of equipment covered by this agreement.
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 .
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Revised : 10/20/08 Replay Service Agreement
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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
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 manufacturer ' s 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. Documentation
not
proprietary or confidential may be released by Purchaser upon request under the Florida Public Records Law Chanter
119, Florida Statute
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.
i . Customer provided servers
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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. Invoices shall
be paid pursuant to the local government Prompt Payment Act. Florida Statute 218 . 70 — 218 .
79 as applicable.
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
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. OPTION TO REPLACE
Purchaser shall have the option, at any time during the Term hereof, to replace the Equipment by purchasing
from
Replay such replacement equipment (if any) as may be then-offered by Replay . Should Purchaser exercise said option,
( a) Replay shall sell such replacement equipment to Purchaser at a discount of twenty percent (20%) off of Replay ' s
then -published prices for same, (b) this Agreement shall remain in effect, but shall be tolled during
the original
manufacturer ' s warranty period for the replacement equipment (if any), and (c) Appendix 2 hereof shall be deemed
amended to substitute the replacement equipment for the equipment replaced .
8 . 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 fill 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 REPLAY SYSTEMS ' INSURANCE
COVERAGE LIMITS 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 ( 1 ) 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 .
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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.
9. GRANT LICENSE
The Software Product is licensed, not sold, and is intended for use by Purchaser as a single product. Its component
parts may not be separated for use on more than one computer.
Purchaser may install and use the Software Product on any computer for which it has been assigned a VPI Activation
Key. The Software Product may not be rented, leased, loaned or distributed to any third party. However, the Software
License may be permanently transferred provided that the recipient agrees to the terms of this Service Agreement.
Purchaser may make backup copies of the Software Product for all computers on which the Software Product is
lawfully installed, for Purchaser ' s sole use and/or disaster recovery purposes.
Copyright notices must be maintained on the Software Product and all copies.
10. SCOPE OF SOFTWARE SERVICES
Replay agrees to provide Maintenance Services to keep the VPI ' s software for Purchaser ' s Digital Voice Logging
system in, or restore it to, good working order. Service will be performed during hours set forth in the Contract.
Services requested or required by the Purchaser outside these hours will be charged at VPI 's then current schedule of
rates and will be in addition to the Charges contained in this agreement. Where the Purchaser requests additional
services outside the scope of this agreement, VPI may provide those services at standard time and material rates and
conditions then in effect.
Software Maintenance Service will include :
• Free VPI software upgrades within the purchased version.
• Discounted VPI software upgrades to next version, excluding hardware.
• Telephone support 24 x 7
Software Maintenance Services do not apply where a defect is caused by :
• Improper use;
• Failure by the Purchaser to provide a suitable physical environment:
• Alterations, amendments or attachments to the System that have not been approved in writing by Replay;
• Fire, flood, lightning, earthquake and any other events over which Replay has no control ;
• Service work not performed by Replay.
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
6555 NW 9TH AVE . , TE . 105 4225 4312D AVENUE
FORT LAU jR E, F� 3309 VERO B CH , FL 32967- 1671
BY : B /
FRA N ES RECfJTSZAID> PRINTED NAME ITL
DIRECTOR OF BU INESS OPERATIONS WESLEY S . DAVIS, CHAIRMAN', BCC
DATE : `� ' DATE :_ September 8 , 2009
4
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Revised : 10/20/08 Replay Service Agreement
Level 2
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APPENDIX I
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
5
ss/replay. serviceag. 10 . 7 . 03 Replay Service Agreement
Revised : 10/20/08
Level 2
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APPENDIX If
Hardware , software and voice cards as listed below:
Vero Beach Police Department
uanti Part Number Descri tion
24 VP-AVISW Activ ! Voice Recording License . Per Activated Channel .
1 VP- PSAP Public Safety Enhanced Feature Set Package
1 VP-4U - RAID1 Alliance VPI Maxi Chassis - Win2003 Server - RAID 1 : Dual 250
GB SATA Drives
1 VP - PERIPHERALS Monitor, Keyboard, Mouse and Speakers Package
1 VP-Analog -24 24 Port Analog Interface Card .
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Revised : 10/20/08 Replay Service Agreement
Level 2