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C - Maintenance Agmt "Exhibit C Exhibit C Maintenance Agreement Maintenance Agreement. City of Miami Beach Motorola Contract No,- 02-199333 1 Exhibit C Maintenance Terms and Conditions Motorola, Inc., through its Commercial, Government, and Industrial Solutions Sector ("Motorola"), and the customer named in this Agreement ("Customer"), hereby agree as follows: Section 1 APPLICABILITY These Service Terms and Conditions apply to service contracts whereby Motorola agrees to provide to Customer either (1) maintenance, support and/or other services under a Motorola Service Agreement, or (2) installation services under a Motorola Installation Agreement. Section 2 DEFINITIONS AND INTERPRETATION "Agreement" means these Service Terms and Conditions; the cover page for the Service Agreement; and any other attachments, all of which are incorporated herein by this reference, In interpreting this Agreement and resolving any ambiguities, these Service Terms and Conditions will take precedence over any cover page, and the cover page will take precedence over any attachments, unless the cover page or attachment specifically states otherwise. "Equipment" means the communication equipment that is specified in the attachments or is subsequently added to this Agreement. "Services" means those installation, maintenance, support, training, and other services described in this Agreement. Section 3 ACCEPTANCE Customer accepts these Service Terms and Conditions and agrees to pay the prices set forth in the Agreement. This Agreement will become binding only when accepted in writing by both parties, The term of this Agreement will begin on the "Start Date" indicated in this Agreement. Section 4 SCOPE OF SERVICES 4,1. Motorola will provide the Services described in this Agreement or in a more detailed Statement of Work or other attachment. At Customer's request, Motorola may also provide additional services at Motorola's then-applicable rates for such services. 4.2, If Motorola is providing Services for Equipment, Motorola parts or parts of equal quality will be used; the Equipment will be Serviced at levels set forth in the manufacturer's product manuals; and routine service procedures that are prescribed by Motorola will be followed, 4,3. If Customer purchases from Motorola additional equipment that becomes part of the same system as the initial Equipment, the additional equipment may be added to this Agreement and will be billed at the currently charged rates for the Maintenance Agreement for like Equipment. If no like Equipment is currently on the Maintenance Agreement, Customer will then be billed at the applicable rates after the warranty for such additional equipment expires, 4.4, Any additional equipment must be in good working order when the additional equipment is added to the Agreement. Customer must promptly notify Motorola in writing when any Equipment or any additional equipment is lost, damaged, stolen or taken out of service, If Equipment or any additional equipment is added or removed prior to the end of the month, Motorola will complete an inventory adjustment form and Customer will pay a prorated increased amount for added Equipment or additional equipment, or receive a prorated, mutually agreeable credit for removed Equipment or additional equipment. 4,5. Motorola must specifically identify any Equipment that is labeled intrinsically safe for use in hazardous environments, Maintenance Agreement. City of Miami Beach Motorola Contract No,- 02-199333 1 4,6. After the 10 year serviceability period, if Equipment cannot, in Motorola's opinion, be properly or economically serviced for any reason including excessive wear, unavailability of parts, the state of technology, or practical infeasibility, Motorola may modify the scope of Services related to such Equipment; or increase the price to Service such Equipment or remove such Equipment from the Agreement. Where Equipment is removed from the Agreement under this provision, Motorola will use reasonable commercially available means to repair such Equipment on a Time and Materials basis, 4.7, Customer must promptly notify Motorola directly of any Equipment failure, Motorola will respond to Customer's notification in a manner consistent with the level of Service purchased as indicated in this Agreement. Section 5 EXCLUDED SERVICES Service excludes the repair or replacement of Equipment that has become defective or damaged from use in other than the normal, customary, intended, and authorized manner; use not in compliance with applicable industry standards; or accident, foreign liquids, power surges, neglect, acts of God or other force majeure events, Unless specifically included in this Agreement, Service excludes items that are consumed in the normal operation of the Equipment, such as batteries, magnetic tapes, etc,; upgrading Equipment; accessories, belt clips, battery chargers, custom or special products, modified units, or software; and repair or maintenance of any transmission line, antenna, tower or tower lighting, duplexer, or combiner, Motorola has no obligations for any transmission medium, such as telephone lines, computer networks, the internet or the worldwide web, or for Equipment malfunction caused by such transmission medium. Section 6 TIME AND PLACE OF SERVICE Service will be provided at the location specified in this Agreement. When Motorola perfonms service at Customer's location, Customer will provide Motorola, at no charge, a non-hazardous work environment with adequate shelter, heat, light, and power and with full and free access to the Equipment. Waivers of liability from Motorola or its subcontractors will not be imposed as a site access requirement. Customer will provide all information pertaining to the hardware and software elements of any system with which the Equipment is interfacing so that Motorola may perform its Services. The hours of subscriber Service will be 8:30 a.m, to 5:30 p,m., local time, excluding weekends and holidays, Infrastructure emergency support will be provided 24 hours a day, 7days a week, including holidays, A technician will be on site or working on City equipment from 8:30 a,m. to 5:30 p,m. local time, excluding weekends and holidays, Unless otherwise stated in this Agreement, the price for the Services exclude any charges or expenses associated with helicopter or other unusual access requirements; if these charges or expenses are reasonably incurred by Motorola in rendering the Services, Customer agrees to reimburse Motorola for such charges and expenses, Section 7 CUSTOMER CONTACT Customer will provide Motorola with designated points of contact (list of names and phone numbers) that will be available twenty-four (24) hours per day, seven (7) days per week, and an escalation procedure to enable Customer's personnel to maintain contact, as needed, with Motorola, Section 8 PAYMENT Unless alternative payment terms are specifically stated in this Agreement, Motorola will invoice Customer in advance for each payment period, All other charges will be billed monthly, and Customer must pay each invoice in U.S. dollars within forty-five (45) days of the invoice date. Customer agrees to reimburse Motorola for all property taxes, excise taxes, and other taxes or assessments levied as a result of Services rendered under this Agreement (except income, profit, and franchise taxes of Motorola) by any governmental entity, Maintenance Agreement. City of Miami Beach Motorola Contract No.- 02-199333 2 Section 9 WARRANTY Motorola warrants that its Services under this Agreement will be free of defects in materials and workmanship for a period of ninety (90) days following completion of those Services. MOTOROLA DISCLAIMS ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. Section 10 DEFAUL TrrERMINATION 10,1, If either party defaults in the performance of this Agreement, the other party will give to the defaulting party a written and detailed notice of the default. The defaulting party will have thirty (30) days thereafter to provide a written plan to cure the default that is acceptable to the other party and begin implementing the cure plan immediately after plan approval. If, after notice to the City and the period to cure has passed, the City fails to make payment to Motorola in accordance with the terms of this Agreement, Motorola will have the right to terminate this Agreement in writing. 10,2, Any termination of this Agreement will not relieve either party of obligations previously incurred under this Agreement, including payments which may be due and owing at the time of termination, All sums owed by Customer to Motorola, per the payment terms of the Purchase Order, will become due and payable immediately upon termination of this Agreement. Upon the effective date of termination, Motorola will have no further obligation to provide Services, Section 11 LIMITATION OF LIABILITY This limitation of liability provision shall apply notwithstanding any contrary provision in this Agreement. Except for personal injury or death, Motorola's total liability, whether for breach of contract, warranty, negligence, strict liability in tort, or otherwise, will be limited to the direct damages recoverable under law, but not to exceed the price of the previous twelve (12) months of Service provided under this Agreement. MOTOROLA WILL NOT BE LIABLE FOR ANY COMMERCIAL LOSS; INCONVENIENCE; LOSS OF USE, TIME, DATA, GOOD WILL, REVENUES, PROFITS OR SAVINGS; OR OTHER SPECIAL, INCIDENTAL, INDIRECT, OR CONSEQUENTIAL DAMAGES IN ANY WAY RELATED TO OR ARISING FROM THIS AGREEMENT, This limitation of liability will survive the expiration or termination of this Agreement. Section 12 EXCLUSIVE TERMS AND CONDITIONS 12.1, This Agreement supersedes all prior and concurrent agreements and understandings between the parties, whether written or oral, related to the Services, and there are no agreements or representations concerning the subject matter of this Agreement except for those expressed herein, The Agreement may not be amended or modified except by a written agreement signed by authorized representatives of both parties, 12,2, Customer agrees to reference this Agreement on any purchase order issued in furtherance of this Agreement, however, an inadvertent omission of the reference to this Agreement shall not affect its applicability, In no event shall either party be bound by any terms contained in a Customer purchase order, acknowledgement, or other writings unless: (i) such purchase order, acknowledgement, or other writings specifically refer to this Agreement; (ii) clearly indicate the intention of both parties to override and modify this Agreement; and (iii) such purchase order, acknowledgement, or other writings are signed by authorized representatives of both parties, Section 13 PROPRIETARY INFORMATION; CONFIDENTIALITY; INTELLECTUAL PROPERTY 13,1, Any information or data in the form of specifications, drawings, reprints, technical information or otherwise furnished to Customer under this Agreement will remain Motorola's property, will be deemed proprietary, will be kept confidential, and will be promptly returned at Motorola's request. Customer may not disclose, without Motorola's written permission or as required by law, any such information or data to any person, or use such information or data itself for any purpose other than performing its obligations under this Agreement. The obligations in this Section will survive the expiration or termination of this Agreement. Maintenance Agreement. City of Miami Beach Motorola Contract No,- 02-199333 3 13.2, Unless otherwise agreed in writing, no business or technical information disclosed in any manner or at any time by Customer to Motorola will be deemed secret or confidential. Motorola will have no obligation to provide its confidential and proprietary information, including cost and pricing data, to Customer. 13.3, This Agreement does not grant directly or by implication, estoppel, or otherwise, any ownership right or license under any Motorola patent, copyright, trade secret, or other intellectual property including any intellectual property created as a result of or related to the Equipment sold or Services performed under this Agreement. Section 14 FCC LICENSES AND OTHER AUTHORIZATIONS Customer is solely responsible for obtaining licenses or other authorizations required by the Federal Communications Commission or any other federal, state, or local government agency and for complying with all rules and regulations required by such agencies. Neither Motorola nor any of its employees is an agent or representative of Customer in any governmental matters, Section 15 COVENANT NOT TO EMPLOY During the term of this Agreement and continuing for a period of two (2) years thereafter, Customer will not solicit for hire and engage on contract any employee of Motorola or its subcontractors, This provision applies only to those employees of Motorola or its subcontractors who are responsible for rendering services under this Agreement. If this provision is found to be overly broad under applicable law, it shall be modified as necessary to conform to such law, Section 16 MATERIALS, TOOLS AND EQUIPMENT All tools, equipment, dies, gauges, models, drawings (excluding as built documentation, drawings and records pertaining to this Agreement) or other materials paid for or furnished by Motorola for the purpose of this Agreement will be and remain the sole property of Motorola, Customer will safeguard all such property while it is in Customer's custody or control, be liable for any loss or damage to such property, and return it to Motorola upon request. Such property will be held by Customer for Motorola's use without charge and may be removed from Customer's premises by Motorola at any time without restriction. Section 17 GENERAL TERMS 17,1, If any court renders any portion of this Agreement unenforceable, the remaining terms will continue in full force and effect. 17.2, This Agreement and the rights and duties of the parties will be governed and interpreted in accordance with the laws of the State of Florida, 17.3, Failure to exercise any right will not operate as a waiver of that right, power, or privilege, 17.4, Neither party is liable for delays or lack of performance resulting from any causes such as strikes, material shortages, or acts of God that are beyond that party's reasonable control. 17,5, Motorola may assign its rights and obligations, and may subcontract any portion of its performance, under this Agreement. 17.6, THIS AGREEMENT WILL BECOME EFFECTIVE FOLLOWING EXPIRATION OF THE APPLICABLE WARRANTY PERIOD IN THE COMMUNICATIONS SYSTEM AGREEMENT AND TERMINATE AFTER THE EXPIRATION OF 9TH SERVICE YEAR. THEREAFTER THIS CONTRACT MAY BE RENEWED BY MUTUAL AGREEMENT BY THE PARTIES, FOR AN ADDITIONAL ONE (1) YEAR TERM, ON EVERY ANNIVERSARY OF THE START DATE UNLESS ONE PARTY NOTIFIES THE OTHER IN WRITING OF ITS INTENTION TO DISCONTINUE THE AGREEMENT NOT LESS THAN THIRTY (30) Maintenance Agreement. City of Miami Beach Motorola Contract No,. 02-199333 4 DAYS OF THAT ANNIVERSARY DATE. FOR ANY RENEWAL PERIOD FOLLOWING THE EXPIRATION OF THE 9TH SERVICE YEAR, MOTOROLA MAY ADJUST THE PRICE OF THE SERVICES TO REFLECT ITS CURRENT RATES, 17,7, If Motorola provides Services after the termination or expiration of this Agreement, the terms and conditions in effect at the time of the termination or expiration will apply to those Services and Customer agrees to pay for such services on a time and materials basis at Motorola's then effective hourly rates, IN WITNESS WHEREOF: n::.tp" r.;",~.ac:b EI Ui /,- > ~:Z~/il:J#- /I, e. (;; , M ~()R- Aflt l L ~O, zoo3 , Motorola. M~~+ Custome R\r Rv" N::.mp" N::.mp' Vice President and General Mana~. Southern Division S (1/)7 Titlp" Titlp' n::.tp" 1\1T0-T~ ~q- P aAck-- e~~ UJAl. CONTRACTS DEPT. APP VAL APPROVED AS TO FORM & LANGUAGE & FOR EXECunON ~&~- .~? Maintenance Agreement. City of Miami Beach Motorola Contract No,- 02-199333 5