HomeMy WebLinkAboutBellsouth Business Master
BBMA Agreement No. FL03.E591 ~O
BELLSOUTH BUSINESSsMMASTER AGREEMENT
1. This BeIlSouth BuslnessSM1 Master Agreement ("Master Agreement") is made by BellSouth Business Systems, Inc. ("BBS") on behalf
of the BellSouth Companies' ("BeIlSouth"), and City of Miami Beach ("Customer") and will govem all Orders for Equipment and/or Services, with
the exception of Regulated Services which shall be govemed by the tenns of this Master Agreement and the Regulated Services Attachment.
2. BeIlSouth Company Obligations - The Parties agree that each BellSouth Company is responsible only for the provision of those Services
and Equipment provided by that BellSouth Company under the tenns and conditions specifically identified in this Agreement and in the Order or
Attachments (and any supplements thereto) applicable to such BellSouth Company, that the duties and responsibilities of each BellSouth Company
are several, and that the Order or Attachment under which a BellSouth Company provides Equipment and Services is not affected by the tenns and
conditions contained in any other Order or Attachment to this Agreement.
3. Term of Agreement - The tenn of this Agreement commences on the date on which the Agreement is executed by BBS on behalf of the
BellSouth Companies ("Effective Date"). The tenn for any Service or product are set forth in the applicable Order or Attachment. If no tenn is
specified in such Order or Attachment, Services will be provided on a month-to-month basis at the then prevailing month-to-month rates for Services
until either Party gives the other at least thirty (30) days written notice of tennination of Services.
4. Definitions.
4.1 "Data Equipment and Data Services" - the Equipment (including without limitation hubs, routers and remote access devices) that
provides connectivity for local area data and/or VOIP networks or to implement wide area networking; and the Services (including without
limitation the assessment, design, configuration, staging, implementation, project management, monitoring and maintenance of such
networks) provided by BellSouth under this Agreement as listed in an Order.
4.2 "Equipmenf' - all communications and infonnation systems products purchased from or serviced by BellSouth under an Order, including
Data Equipment unless otherwise noted. Equipment also includes Software, as further defined below.
4.3 "Implementation" - (a) for Equipment installed by BellSouth, the date the Equipment has been installed and is operating
substantially in accordance with the manufacturer's specifications, or (b) for all other Equipment, upon delivery.
4.4 "Major Failure" - the failure of Equipment that substantially interferes with the nonnal conduct of Customer's business.
4.5 "Minor Failure" - any failure of Equipment other than a Major Failure.
4.6 "Order" - any request for Equipment and/or Services placed by Customer pursuant to this Agreement or an Attachment and accepted by
BellSouth.
4.7 "Regulated Services" - regulated telecommunications services.
4.8 "Services" - work perfonned by BellSouth pursuant to this Agreement, including but not limited to the following: (a) Warranty and
Maintenance Services, (b) Installation Services, (c) Electrical Damage Repair Service, (d) Data Services, (e) various fonns of dial-up and/or
dedicated Intemet protocol routing, (f) tenninal server services, (g) Intemet access, (h) gateway, (i) network consulting, design, monitoring,
management and maintenance, (j) web site design, (k) development and hosting, (I) managed equipment services, (m) managed network and
security services, (n) e-business Center services, (0) Regulated Services, and (p) other communications-related services.
4.9 "Software" - any set of one or more computer programs which is composed of routines, subroutines, concepts, processes, algorithms,
fonnulas, ideas, or know-how severally owned by or licensed to BellSouth and/or anyone or more of its suppliers. The tenn Software shall also
include any corrections, patches, updates, or revisions to Software originally provided.
5. Prices And Payment -
5.1 Prices, fees, charges, or rates will be as set forth in the Order, Statement of Work, or in BellSouth Company rate schedules or pricing
guides in effect from time to time, oopies of which shall be provided to Customer. For Regulated Services, the prices, charges and rates shall be as
set forth in the Regulated Services Attachment and all documents attached thereto. Except as provided below, Customer will be invoiced monthly for
all Services with the exception of Regulated Services. If Customer is not in Default, Customer may request in writing changes to Customer's
oonfigurations of Services hereunder at prevailing market rates, which may result in an adjustment to the total price or schedule or other tenns of the
existing Order, or an application of a reasonable restock charge for any deleted items.
5.2. If any payment due hereunder is not made by the due date, any late payment/interest charges will be computed in at one and one-
half percent (1 Y:.%) per month, or the highest amount pennitted by law, whichever is less. Late payment charges for Regulated Services will
be charged in accordance with the applicable tariff or Contract Service Arrangement ("CSA"). In the event of a good faith dispute between
Customer and BellSouth as to the correctness of items appearing on BellSouth's invoice to Customer, Customer may withhold payment of the
disputed items only.
6. Taxes - Unless otherwise provided in an Attachment, all charges are exclusive of applicable federal, state or local taxes, and fees. BellSouth
may invoice and Customer agrees to pay to BellSouth amounts equal to any taxes resulting from this Agreement or any activities hereunder,
including any and all sales and use taxes, duties, or levies imposed by any authority, govemment, or govemment agency, exclusive of taxes on
BellSouth's net income. Customer will be responsible for any ad valorem, property, or other taxes assessable on Equipment on or after delivery to
the installation site.
1 BellSouth Business is a service mark of BellSouth Intellectual Property Corporation
, BellSouth BSE, Inc., BellSouth Communication Systems, LLC, BellSouth Long Distance, Inc., BellSouth MNS, Inc., BellSouth
Telecommunications, Inc.
10f 8
eel JrlElEfJ'l'IJIILI" 1\01" 1\1!!1"A1\ 1
[JeT reR QI~9L9&URC OUTSIElE B!:LLb6UTI ~ vvlTMOtJf yyf\ITTEfJ fE:f\~1I33113r4
~r".},
~~1\0\{
BBMA Agreement No. FL03-E591.QO
7. Customer Responslbllltles-
7.1 As between Customer and BellSouth, Customer is responsible for (a) assuring that its authorized users comply with the provisions
of these terms and that unauthorized persons do not gain access to or use the Services or Equipment through user names, passwords, or
other identifiers assigned to Customer pursuant to these terms; (b) providing any equipment and software that may be necessary for the use
of the Services by Customer (in addition to any Equipment and Software that may be placed at Customer's location(s) or otherwise provided or
used by BellSouth for its provision of the Services); (c) timely payment of all charges for usage of the Services applicable to its account
whether or not by authorized users or for authorized purposes; and (d) performing its other obligations under these terms. Customer shall not
use the Services or Equipment in any way that would be or would assist any third party to be in violation of any law, these terms, or any
Acceptable Use Policy applicable to the Services or Equipment. Customer shall not knowingly transmit or publish on or over the Services or
Equipment any information, software, or other content that violates or infringes upon the rights of any others or use the facilities and
capabilities of the Services or Equipment to conduct any business or activity or solicit the performance of any activity that is prohibited by law.
Customer shall comply with all applicable laws, rules, and regulations in connection with the Services and Equipment.
7.2 Customer shall provide, at no cost to BellSouth, and during BellSouth's regular business hours, timely access to Customer locations,
appropriate workspace, facilities, information and staff resources, all relevant Customer specific graphics or information, data reproduction services,
and other services at Customer's location as are reasonably requested by BeIlSouth for purposes of facilttating BellSouth's provision of Services or
Equipment to Customer. If pre-scheduling is required for BellSouth personnel to perform on-site Services, Customer will inform the BellSouth
Project Manager prior to the scheduled performance date. Should any such Customer requirements not be provided promptly, Customer is
responsible for any resulting delays, redispatch charges, or added costs. The accuracy of Customer-provided information is solely Customer's
responsibility. Customer shall provide a safe on-site working environment free of asbestos or hazardous materials or conditions, and all required AC
electrical power and communications receptacles at the locations needed for the Equipment and Services supplied. The installation location must
meet all manufacturer environmental specification requirements. Customer is responsible for providing any special lifts, ladders, borings, or other
items required as a result of non-standard Customer site conditions.
8. Other Services and Software.
The Services may include dedicated or dial-up Intemet Protocol connectivity to BellSouth's local Internet networks and to the global Internet,
as well as access or connectivity to any of the information sources or services that may be provided by BellSouth or be available from other
service providers participating in, connected to or accessible through BellSouth's Services or the global Internet but which are not part of the
Services being purchased hereunder. Separate charges may be applicable to some of these additional services and may appear on
Customer's bill from BellSouth, or they may be billed to Customer separately by the providers of such services. A third party Global Service
Provider (GSP) provides a roaming capability in conjunction with dial-up Bellsouth Business Internet Services that allows users (subject to any
applicable roaming surcharge) to dial the local numbers of GSP-provided POPs to reach the BellSouth Business Internet Service while outside
of the BellSouth Business Internet service areas. If Customer or its users elect to use such GSP local access (or Customer purchases a
service plan which has such GSP local access included in the price), Customer will be charged by the GSP and may see a separate charge
for such service on its bill. Such GSP local access service is provided by the GSP on the GSP's terms and conditions and at the prices or
surcharges set forth in the applicable Customer's Order. Use by Customer and any individual authorized users of Customer of BellSouth's
other services and any browser or other Software provided by BellSouth shall be subject to BellSouth's standard terms and conditions for such
services as well as the applicable software license terms that are provided with such Software.
9. Equipment
9.1 Equipment Orders - Customer may place Orders for Equipment and/or Services pursuant to this Agreement by: (a) BellSouth order form,
(b) telephone order to BellSouth for non-engineered move, add, or change work, or Services, in either case not to exceed ten thousand dollars
($10,000), (c) Customer purchase order or letter of purchase request; or (d) facsimile or electronic transmission, for the purposes of which Customer
agrees that BellSouth and any third-party lender or lessor may rely upon any facsimile copy, electronic data transmission or electronic data storage
of the Agreement or any Order. Each Order, if confirmed or accepted by BellSouth, shall constitute a separate purchase and, except for any
provisions which are specifically excluded or modified in the Order, each Order shall automatically incorporate all the terms and conditions of this
Agreement, and any and all standard (such as preprinted or computer generated) terms and conditions on any Customer purchase order forms or
other Customer documents shall be deemed deleted. If Customer desires BellSouth invoices to reference Customer's purchase order or other
number for convenience, Customer may include such number in each Order. Each Order shall also include any mutually agreed Statements of
Work.
9.2 Unless otherwise stated in the applicable Order, Customer's payment for Equipment and related Equipment Services is invoiced and due
as follows: (a) Maintenance Service - monthly in advance, (b) Equipment or other Orders - 20% of the Total Equipment Price with Order, 50% at
Equipment delivery and 30% at Implementation, (c) Installation Services - 100% upon the completion of the Installation Services. Expedited
Equipment Orders may involve additional charges.
9.3 Data Equipment components shall be invoiced and payable upon shipment of Equipment by the manufacturer. Data Maintenance and
Monitoring Services are invoiced and payable in advance (unless stated otherwise in the Order) beginning at Implementation at Customer's
individual site locations. Data Services shall be invoiced and payable upon Implementation per Customer's individual stte locations. Other Services
will be invoiced monthly for usage of Services unless otherwise provided in the Order. Customer shall pay the amounts agreed to and invoiced by
BellSouth by the due date stated on the invoice. The amounts listed in the Order are exclusive of, and Customer shall pay, all related delivery costs.
If shipping charges are shown on an Order, they are an estimate only and shipping charges invoiced may vary from the estimate shown on the
Order.
9.4 Risk of Loss or Damage for Equipment - All risk of loss or damage shall pass to Customer as to each item of Equipment on the date of
delivery to the installation site and acceptance of the delivery therein by Customer, except loss or damage caused by BellSouth.
2 of 8
861~rl~fJ JTI.'.L'PRePRI~TA w' tIel' rg(;1 Qli('b.9SldFtC 0HrSI6E BELLB611l"11 YV ITI16UT '/JRrrrE:IJ pi E:f\ryllSSI9NJ'\~ 1 \0'-<
'1l"t ev)
BBMA Agreement No. FL03-ES91.QO
9.5 Seculity Interest in Equipment" Customer grants BellSouth a purchase money seculity interest in each item of Equipment Customer
agrees to execute any documents reasonably requested by BellSouth to protect and/or perfect BellSouth's seculity interest.
9.6 Limited Warranties" (a) BellSouth warrants that at Implementation, and for the duration of the warranty peliod referred to below, each item
of Equipment. except for Data Equipment or as otherwise provided herein or in an Order, will function in accordance with the manufacturer's
published specifications, provided it is not damaged as set forth in Section 9.13 and is used according to standard operating instructions issued by
the manufacturer or BellSouth. Unless otherwise stated in the Order, the warranty peliod for Equipment installed by BellSouth is twelve (12) months
from Implementation. CERTAIN MISCELLANEOUS EQUIPMENT IS SOLD "AS IS" AND WILL CARRY NO WARRANTY WHATSOEVER FROM
BELLSOUTH. Any warranty service for "As Is" Equipment will be provided directly by the manufacturer of such Equipment. Such Equipment shall
be dearly indicated on the applicable Order as Manufacturer's Direct Warranty Service ("MDWS"). BELLSOUTH OFFERS NO MAINTENANCE
SERVICE OR WARRANTY FOR THESE PRODUCTS. The warranty peliod will not be enlarged by BellSouth's repair or replacement thereof.
(b) Data Equipment and Data Services Warranty Disclaimer - BELLSOUTH DOES NOT IMPLY OR EXPRESS ANY BELLSOUTH
WARRANTY WHATSOEVER FOR DATA EQUIPMENT OR SERVICES PROVIDED. Customer's sole warranty is from the manufacturer. If Data
Maintenance Service is not listed on an Order, any warranty claims that may alise are solely the responsibility of Customer to pursue with the
manufacturer.
(c) All warranties extend only to the oliginal purchaser of the Equipment, identified as "Customer," and do not extend to any
subsequent purchaser, transferee, user, or assignee of the Equipment, unless prior written consent is obtained from BellSouth for the
extension of the warranties to such purchaser, user, or assignee.
9.7 Warranty Service for Equipment - (a) Full Warranty Service ("FWS"): BellSouth agrees to provide, except for Data Equipment or as
otherwise set forth herein or in an Order, Warranty Service to keep the Equipment in, or to restore the Equipment to, good working order in
compliance with the manufacture specifications. If neither repair nor replacement are reasonably available to BellSouth. then BeIlSouth or
Customer may elect that Bellsouth refund the plice paid to BellSouth for the purchased Equipment, or the one time fee paid for the licensed Software
which is in either case defective, as then depreciated based on Customer's depreciation schedule used for federal income tax reporting purposes.
Warranty Service indudes preventive maintenance based upon the specific needs of individual items of Equipment and unscheduled, on-alll
remedial maintenance duling warranty coverage. Replacement or additional parts and Equipment may be either new or reconditioned and
equivalent to new in performance. The replaced items become the property of BellSouth.
(b) Response Times for Full Warranty Service: BellSouth will use reasonable efforts to respond to Customer's request for Warranty
Service for a Major Failure within two (2) hours, twenty-four (24) hours a day, seven (7) days a week, from the time BellSouth first receives
Customer's request. With respect to a Minor Failure, BellSouth will use reasonable efforts to respond to Customer's request for Warranty Service
during BellSouth's regular working hours, Monday through Friday, excluding holidays observed by BellSouth, within eight (8) business hours from
the time BellSouth first receives the Customer's request.
(c) Depot Warranty Service ("DWS"): BellSouth will replace defective Equipment on an exchange basis. Customer agrees to retum
defective Equipment to BellSouth for depot service within three (3) days after.receipt of replacement Equipment from BellSouth. If BellSouth has not
received such defective Equipment within ten (10) days, Customer agrees to pay for the replacement items.
9.8 Installation of Equipment - (a) If ordered by Customer and agreed by BellSouth, BellSouth will provide Installation Services to install
the Equipment. Customer agrees to provide, in a timely manner, Customer design information and a suitable installation environment as
reasonably requested in any applicable BellSouth installation manual, or as otherwise reasonably specified by the manufacturer or BellSouth.
BellSouth will make reasonable efforts to meet the date for installation set forth on the Order, and will notify Customer as soon as practicable
of any delay. Customer agrees to notify BellSouth as soon as practicable if Customer requires postponement of any installation. If Customer
or Equipment specifications require non-standard wiring or other work. Customer will incur additional installation charges. Each item of
Equipment purchased under this Agreement will be installed as specified by BellSouth and the Equipment manufacturer. If the Equipment is
not to be installed by BellSouth, Customer warrants that all Equipment is to be installed by Customer's manufacturer certified employees at Its
premises and is not for resale.
(b) If the Implementation of any Order is delayed, by no fault of BellSouth, for one hundred eighty (180) days or more from the
acceptance of the Order by BellSouth, or ninety (90) days from the original agreed Implementation date, BellSouth will have the following options: (i)
revise the price to reflect then current BellSouth pricing, (ii) require payment for Equipment delivered and Services performed to that time, or (iii)
cancel the Order and collect reasonable termination charges limited to manufacturer's restocking charges and other out of pocket costs, non-
recoverable matelials and labor expended.
9.9 Maintenance Service for Equipment - (a) If ordered by Customer and agreed by BellSouth, Maintenance Service coverage for Data
Equipment commences at Implementation and Maintenance Service for voice Equipment commences on expiration of warranty. The
coverage hours for Maintenance Service will be as listed in Section 9.7(b) above, or as agreed in the Order. Unless included in the Order,
Customer will provide an analog modem at each site for remote diagnostics and/or repair and a dedicated analog telephone line within fifteen
feet of the Equipment. Maintenance may be provided via repair, replacement, or upgrade of defective Equipment at BellSouth's option. If on-
site manufacturer service is required, it will be provided at BellSouth's then current commercial rates. For all Equipment to be maintained by
BellSouth, Customer represents it has paid the appropriate manufacturer license fee, and will reimburse BellSouth for any unpaid license fee if
payment is demanded by the manufacturer.
(b) Except for Data Equipment Maintenance Service or as specified in the Order, the terms and conditions of Sections 9.7(a) and 9.7(b)
shall apply to Full Maintenance Service ("FMS"), and those of 9.7(c) for Depot Maintenance Service ("DMS"). If equipment is not under BellSouth
Warranty or Maintenance Service at the time Maintenance Service is ordered hereunder, or if additional items are added by Customer, BellSouth will
Inspect the equipment and perform any necessary repairs at BellSouth's then current rates for mileage, labor, and materials.
(c) Maintenance Service charges will be set forth in the applicable Order. Unless otherwise set forth in the Order, the Total
Maintenance Charge is an annual charge payable in monthly installments. If at any time additional Equipment is added to the original Equipment, a
new pro-rated charge, computed at BellSouth'sthen current rates, will be added to the Total Maintenance Charge to reflect the additional Equipment
3 of 8
GOI~prll5~141IAUI'R6P'f\I~1il.f\ I
f46r rQR BIECbQJ;"R. Q""f~IB( Q[LLGElId"f11 yvITI18b1T~'FlllTE:rJ PCR~11€~19~J-''''_:b .
. ~...\.:K
BBMA Agreement No. FL03.E591~O
being serviced. For multi-year Orders, the rates used to calculate the Maintenance Service Charge may be increased annually during the Term of
Maintenance Service by a percentage no greater than the percentage increase in the Consumer Price Index over the previous year. BellSouth may
adjust the monthly maintenance charge if the Equipment is moved to a different location. Custome~s payment is due upon receipt of BellSoulh's
invoice(s).
(d) For key system maintenance only, there is a minimum charge for seven stations at the agreed rate, even if the key system in
question contains fewer than seven stations.
9.10 Term of Maintenance Service for Equipment - (a) The term of the Maintenance Service, if Ordered, shall begin on either Q) the day
following the last day of the warranty period for the applicable Order, or (Ii) for Equipment not covered by Warranty or Maintenance Service at the
time Maintenance Service is Ordered, the day following the completion of the necessary repairs as described in Section 9.9(b) above.
(b) THE INITIAL TERM FOR MAINTENANCE SERVICE SHALL BE ONE (1) YEAR UNLESS OTHERWISE STATED ON THE
ORDER. THE INITIAL TERM SHALL BE AUTOMATICALLY RENEWED FOR SUCCESSIVE TERMS OF ONE (1) YEAR EACH AT
BELLSOUTH'S THEN CURRENT RATES. EITHER PARTY MAY ELECT NOT TO RENEW MAINTENANCE SERVICE BY GIVING THE OTHER
PARTY WRITTEN NOTICE AT LEAST THIRTY (30) DAYS PRIOR TO THE END OF THE THEN CURRENT TERM.
9.11 Additional Equipment Services - (a) Equipment Drop Ship - For drop ship Orders, BellSouth will ship Equipment to the Custome~s
spedfied and agreed location(s). BellSouth provides no assessment, systems design, staging, implementation, installation or project management
for drop ship Equipment
(b) Assessment-If Assessment is listed in an Order, BellSouth will work w~h Custome~s representative(s) in evaluating Customer
requirements for Equipment and Services, and render an evaluation report, delineating those requirements.
(c) Systems Design - If Systems Design is listed in an Order, BellSouth will work with local exchange and interexchange carriers
chosen by Customer in designing the necessary customer premise equipment elements (the 'System Design') to provide communications between
the locations specified by Customer.
(d) Configuration, Staging and Implementation - If Configuration, Staging and Implementation are listed in an Order BellSouth will
assemble, configure and test the Equipment. BellSouth's technical staff adheres to the original equipment manufacture~s (OEM) recommendations
for configuration and installation. The Equipment will be delivered to the specified Customer location(s) and installed. BellSouth will also test each
system, according to procedures/methods listed in the Order. BellSouth will provide to Customer the written results of all testing conducted by
BellSouth. Upon successful completion of testing, BellSouth will notify Customer in writing and the Equipment and Services will be deemed
accepted. Add~ional testing outside that listed in the Order or at Custome~s convenience or request will be performed at BeIlSouth's option and at
BellSouth's then-current rates.
(e) Project Management -If Project Management is listed in an Order, BellSouth will assign a qualified Project Manager to provide a
single point of contact and coordinate all activities to be delivered under the terms of that Order. BellSouth may replace the BellSouth Project
Manager at any time by written notice to Customer.
(f) Network Monitoring Services - Performance Advisor Plus - If Network Monitoring is listed in an Order, BellSouth will provide
Customer: (i) Fault Monitoring with IP Ping and MIB polling; (ii) Monthly fault and performance reporting; (iii) Multi-Vendor trouble
isolation/coordination; and (iv) Proactive performance monitoring. Customer will provide: (i) Network diagram and applicable circu~ ID's; (Ii)
Addressing and naming conventions; (iii) SNMP and TI readlwrite access; (iv) Analog modems at each site for remote diagnostics and/or repair; (v)
Dedicated analog telephone line, within fifteen feet of the installed router; (vi) Detailed contract information for all circuit and hardware maintenance
providers, including emergency access and after-hours contacts; (vii) Letter of Agency naming BellSouth for the purpose of opening and tracking
trouble tickets with respective suppliers; (viii) A 64K Frame Relay PVC with 16K CIR management link between Custome~s host router and
BellSouth's mon~oring facility in Atlanta, Georgia; and (ix) Add~ional requirements as agreed in a Scope of Work.
9.12 Equipment Key System Electrical Damage Repair Service -
(a) WHERE AVAILABLE, AND IF ELECTED BY CUSTOMER, CUSTOMER AGREES TO PAY A PER STATION RATE IN ADDITION
TO NORMAL MAINTENANCE RATES DURING THE WARRANTY AND MAINTENANCE PERIODS, AND BELLSOUTH WILL EXTEND
MAINTENANCE TO COVER REPAIR OR REPLACEMENT OF ALL BELLSOUTH PROVIDED KEY SYSTEM AND KEY SYSTEM RELATED
EQUIPMENT COVERED HEREUNDER WHICH IS DAMAGED BY A LIGHTNING STRIKE OR ELECTRICAL POWER SURGE. THIS SERVICE
WILL BE AUTOMATICALLY RENEWED AT THEN CURRENT RATES AS LONG AS A VALID MAINTENANCE ORDER IS IN EFFECT. THIS
SERVICE IS ONLY AVAILABLE WITH WARRANTY OR MAINTENANCE SERVICE AND CANNOT BE PURCHASED SEPARATELY.
(b) In all situations involving damage to BellSouth provided key system or key system related Equipment due to lightning or power
surges, provided the Electrical Damage Repair Service has been invoked, BellSouth's SOLE AND EXCLUSIVE LIABILITY will be repair or
replacement of the damaged Equipment with BeIlSouth provided Equipment.
9.13 Warranty and Maintenance Service Exclusions for Equipment. BellSouth shall respond to any service call requested by Customer;
however, Customer acknowledges that Warranty and Maintenance Services do not cover damages to or failure of the Equipment or increases in
service time resulting from causes other than defects in or the normal wear and tear of the Equipment including, but not limited to, misuse or
negligent operation of the Equipment, accident, theft, unexplained loss, lightning, electrical power surge, fire, flood, wind, acts of God, war, terrorism,
failure of Customer to maintain a proper operating environment, or repair, relocation or alteration of the Equipment by anyone other than BellSouth
or its designated agents. Warranty and Maintenance Services do not cover any Customer provided cable or equipment unless stated on the Order.
Any site visits or repairs necessitated by any of these excepted causes made by BellSouth shall be at the sole expense of Customer, and Customer
agrees to bear the cost of all labor and materials at BellSouth's then current rates.
9.14 Software License - (a) Software suppliers license Software on a nonexclusive basis to BellSouth, and BellSouth also develops Software
or has Software developed for it by third parties. All such Software is and will remain the property of BellSouth or its third party suppliers. BellSouth,
with respect to BellSouth developed Software and to the extent authorized under the supplier licenses, grants to Customer a personal,
4 of 8
CUI"nBCtJTI:,L""O~"11::.1 /"\1"'\1 -140T roR,1313EL68b1RC QkffSl8E: I5e:LLS6ld'fII'^'ITI18bfTVyRI, ll!14 r1::"lvll:3~I8fJ f.p... '\..
fi'\N.~p ,(
~;;'('l,,"'P
BBMA Agreement No. FL03-E591-D0
nontransferable and nonexclusive sublicense (without the right to further sublicense) to use the Software, subject to the following terms and
conditions:
(b) Customer shall (i) use the Software only in conjunction with the particular Equipment for which the Software was initially
furnished; (ii) use the Software solely for Customer's internal business purposes; (Iii) not reverse engineer, decompile, disassemble, reverse
translate or otherwise translate the Software into human readable form, nor reproduce the Software except for archival purposes; (iv) retum
the Software, together with all copies thereof, or with BellSouth's consent, destroy (or erase, if recorded on an erasable storage medium) the
Software when no longer needed or permitted for use with the Equipment for which the Software was furnished; and (v) to the extent permitted
under Florida law, keep in confidence all information relating to Software and treat such information as the exclusive property and trade secret
of BellSouth or such suppliers.
(c) Notwithstanding the above, Customer may disclose the Software to other persons solely for the purpose of installing, operating or
maintaining the particular Equipment for which the Software was furnished, provided such other persons agree in writing to the same conditions
respecting use and confidentiality contained in this Section 9.14.
(d) In addition to the above, where BeIlSouth's suppliers require Customer to sign or otherwise agree to separate licensing provisions
directly with the supplier, Customer shall comply with such licensing provisions.
10. Limitation and Disclaimer of Warranties - EXCEPT AS PROVIDED IN SECTION 9, NEITHER BELLSOUTH NOR ANY OF ITS
UNDERLYING SERVICE PROVIDERS, INFORMATION PROVIDERS, LICENSORS, EMPLOYEES, OR AGENTS WARRANT THAT THE
SERVICE WILL BE UNINTERRUPTED OR ERROR FREE OR MAKE ANY WARRANTY AS TO THE RESULTS TO BE OBTAINED FROM USE
OF THE SERVICE. THE SERVICE IS PROVIDED WITHOUT WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING BUT
NOT LIMITED TO WARRANTIES OF TITLE OR IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICUlAR
PURPOSE OR OTHERWISE, OTHER THAN THOSE WARRANTIES (IF ANY) THAT ARE IMPLIED BY AND INCAPABLE OF EXCLUSION,
RESTRICTION, OR MODIFICATION UNDER THE LAWS APPLICABLE TO THIS AGREEMENT, ALL SUCH WARRANTIES BEING
EXPRESSLY DISCLAIMED.
11. Remedies and Damages Limitations - The following limitations of liability represent a material inducement to the Parties to enter into this
Agreement and to perform Orders at the stated price. If additional risks or undertakings were contemplated by BellSouth, they would have been
reflected in an increased price. In contemplation of the price, Customer acknowledges that there is consideration for the limitation of damages and
remedies set forth above and as follows:
11.1 BellSouth shall not be liable to Customer or any of Customer's users for any lost profits or other consequential damages, even if BellSouth
has been advised of the possibility of such damages; any claim or other action against Customer by any third party (except as set forth in the section
below on infringement); any act or omission of any other entity furnishing products and services that are used by Customer in connection with the
Services or Equipment or for failure of any products or services provided by Customer; or any damages or losses to the extent caused by the fault or
negligence of Customer or Customer's failure to perform Customer's responsibilities.
11.2 NEITHER BELLSOUTH NOR ANY OF ITS UNDERLYING SERVICE PROVIDERS, INFORMATION PROVIDERS, LICENSORS,
EMPLOYEES, OR AGENTS SHALL HAVE ANY LIABILITY FOR INCIDENTAL, CONSEQUENTIAL, ECONOMIC, PUNITIVE, INDIRECT OR
SPECIAL DAMAGES OR LOST PROFITS, LOSS OF USE, OR TOLL FRAUD SUFFERED BY THE CUSTOMER OR ANY OTHER PARTY AS A
RESULT OF THIS AGREEMENT OR BELLSOUTH'S PERFORMANCE OR FAILURE TO PERFORM UNDER THIS AGREEMENT,
REGARDLESS OF WHETHER OR NOT BELLSOUTH HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. CUSTOMER
EXPRESSLY ACKNOWLEDGES THAT THE PROVISIONS OF THIS SECTION SHALL ALSO APPLY TO ALL CONTENT OR OTHER SERVICES
AVAILABLE THROUGH THE SERVICE OR EQUIPMENT. CUSTOMER AGREES THAT CUSTOMER WILL NOT IN ANY WAY HOLD
BELLSOUTH RESPONSIBLE FOR ANY SELECTION OR RETENTION OF, THIRD PARTIES, EXCEPT FOR ITS SUBCONTRACTORS IN
CONNECTION WITH THE SERVICE OR EQUIPMENT.
11.3 In the event that a court should hold that the limitations of liabilities or remedies available as set forth in these Terms, or any portions
thereof, are unenforceable for any reason, or that any of Customer's remedies under these Terms fail of their essential purpose, Customer expressly
agrees that under no circumstances shall BellSouth's total liability to Customer or any party claiming by, through or under Customer for any cause
whatsoever, and regardless of the form of action, whether in contract or in tort, including negligence, in the aggregate, exceed the amount of charges
paid by Customer for use of the Services or Equipment during the twelve-month period preceding the date such claim first arose.
11.4 Customer's sole remedy for any failure or non-performance of the Services (including any associated Equipment, Software or other
materials supplied in connection with the Services) shall be (a) for BellSouth to use commercially reasonable efforts to effectuate an adjustment or
repair of the Services or Equipment and, in the event such failure or non-performance results in Service or Equipment downtime that exceeds the
period of time specified in the applicable service level agreement portion (if any) of any applicable Order or Service Description, to receive a refund
or credit of or against any charges otherwise payable for the Services or Equipment for the period of service downtime as provided for in the
applicable service level agreement portion (if any) of any applicable Order or Service Description, or (b) if such failure or non-performance results in
Service or Equipment downtime or degradation so substantial as to render the Service essentially unavailable to or unusable by Customer for
normal use, to terminate the Services or Equipment for default by BellSouth in the manner provided in these terms. Unless specified to the contrary
in any applicable service level agreement portion of any applicable Order or Service Description, the maximum credit for service downtime or other
failure shall not exceed the total monthly bill to the Customer for the Services or Equipment for the month in which such downtime or failure occurs.
12. Termination and Default -
12.1 BellSouth may. at its sole discretion, terminate any Customer Order and discontinue Customer's access to and use of the Services, if (a)
Customer fails to pay any amount within 10 days after written notice that the same is delinquent or (b) Customer breaches any of the material terms,
conditions, obligations, or representations contained in these Terms, except for applicable Acceptable Use Policies, and does not cure such breach
within thirty (30) days of written notice of such breach; or (c) Customer becomes the subject of a voluntary or involuntary bankruptcy, insolvency.
reorganization, or liquidation proceeding, makes an assignment for the benefit of creditors, or admits in writing its inability to pay debts when due, or
50f 8
€Jet JrlBEr ~ f1l"\ut"'t(U""KI~ I A.f\ I
r JeT raR BI3eLOSb1R~ 9~T~IQIi QI;;:lLS8ldTII V:ITI19bJT 'A'RITFC1J f~",~1I5316rJ f!\~ ,~
(f. \o't
"'\.\~...,
BBMA Agreement No. FL03-E591-o0
(d) Customer's equipment or use of the Services interferes with the Services or any other user. A~hough BellSouth reserves the right to immediately
suspend or terminate Service in the event of repeated or flagrant violations of its Acceptable Use Policy, incorporated herein by reference,
BeIlSouth's preferred course of action under this Section 12.1 (d). is to allow Customer an opportunity to cease such interference before Service
termination occurs. In addition. if BeIlSouth reasonably determines that the continuation of the Services has become impractical or unfeasible for
any technical, legal. or regulatory reason. BellSouth may terminate the Services with at least thirty (30) days prior notice if reasonably practical.
12.2 If Customer has elected a minimum term for the Services and then cancels its Services or any portion thereof. or has its Services or any
portion thereof terminated as provided above, except in the event of a termination upon a determination by BellSouth that the Services have become
impractible or unfeasible, in which case Customer shall have no liability to BellSouth, prior to the expiration of such minimum term. Customer shall be
obligated to pay BellSouth a termination charge equal to the amount (if any) specified in the applicable Order; otherwise the termination charge shall
be equal to 100% of the total monthly charges (other than variable usage charges) that would have become due for the remainder of the scheduled
minimum term if such cancellation had not occurred. Such termination charge shall be paid to BellSouth within thirty (30) days after such
cancellation by Customer.
12.3 If BellSouth breaches any of these material Terms and fails to cure such breach within thirty (30) days after written notice of such breach.
Customer may terminate the affected Services by written notice to BellSouth. without obligation for any early termination charges otherwise
payable hereunder.
13. Force Majeure - BeIlSouth shall not be responsible for any delay or failure in delivery or performance of any of its duties hereunder due to acts
of God. acts or omissions of any network provider or any other occurrence commonly known as force majeure. including weather, war. riots, acts of
terrorism. embargoes, strikes, or other concerted acts of workers, casualties or accidents. or any other causes or circumstances whether of a similar
or dissimilar nature to the foregoing that prevent or hinder the delivery of the Services. BellSouth may cancel or delay performance hereunder for so
long as such performance is delayed by such occurrence or occurrences, and in such event BellSouth shall have no liability to Customer.
14. Notices. All notices under this Agreement will be in writing and will be deemed to have been duly given if delivered personally or by courier
service. faxed or mailed by registered or certified mail, retum receipt requested, postage prepaid. to the Parties at the addresses set forth below. All
notices under this Agreement that are addressed as provided herein will be deemed given (a) upon delivery. if delivered personally or by courier
service. (b) when confirmed. if delivered by facsimile. and (c) on the fifth (5th) business day after the day it is deposited in a regular depository of the
United Stales mail. if delivered by mail in the manner described above. Either Party may change its address or respeelive contact for notification
purposes by giving notice to the other of the new address or designee and the date upon which such change will become effective.
BeilSouth
BellSouth Business Systems. Inc.
Atln: Director of Contract Management
2180 Lake Blvd., 7th Floor
Atlanta, GA 30319
Customer
City of Miami Beach
1100 Washington Avenue
Miami Beach. FL 33139
15. Confidential Information -
15.1 Except as set forth in this Section. or as otherwise expressly provided in this Agreement. and to the extent permitted under Florida law.
each Party agrees that (a) all information communicated to it by the other and identiflEld and marked as "confidential." whether before or after the
date hereof. (b) all information identified as confidential to which it has access in connection with the Services and Equipment. and (c) this
Agreement and the Parties' rights and obligations hereunder (collectively. "Confidential Information"), will be, and will be deemed to have been.
received in confidence and will be used only for purposes of this Agreemenl Each Party agrees to use the same means it uses to protect its own
confidential information. but in no event less than reasonable means, to prevent the disclosure and protect the confidentiality of Confidential
Information. No Confidential Information will be disclosed by the recipient Party without the prior written consent of the disclosing Party; provided,
however, that each Party may disclose this Agreement and any disclosing Party's Confidential Information to those who are employed or engaged
by the recipient Party, its agents or those of its affiliates who have a need to have access to such information in connection with their employment or
engagement. provided the recipient Party notifies such persons of the obligations set forth in this Section and such persons agree to abide by such
obligations.
15.2 The obligations set forth in subsection 15.1 above will not prevent any Party from disclosing information that belongs to such Party or (a) is
already known by the recipient Party without an obligation of confidentiality other than under this Agreement. (b) is publicly known or becomes
publicly known through no unauthorized ael of the recipient Party, (c) is rightfully received from a third party, (d) is independently developed without
use of the disclosing Party's Confidential Information (e) is disclosed without similar restrictions to a third party by the Party owning the Confidential
Information or (f) is subject to disclosure under Florida Public Records law. If Confidential Information is required to be disclosed pursuant to law.
regulation, tariff or a requirement of a govemmental authority, or in connection with an arbitration or mediation, such Confidential Information may be
disclosed pursuant to such requirement so long as the Party required to disclose the Confidential Information, to the extent possible. provides the
disclosing Party with timely prior notice of such requirement and coordinates with the disclosing Party in an effort to limit the nature and scope of
such required disclosure. Upon written request at the expiration or termination of an Attachment or Order. all documented Confidential Information
(and all copies thereof) owned by the requesting Party (if previously received by the terminating Party) will be returned to the requesting Party or will
be destroyed. with written certification thereof being given to the requesting Party. The provisions of this Section will survive the expiration or
termination of any Order. Attachment and this Agreement for any reason.
15.3 Confidential Information will not include any feedback. data, answers. questions. comments, suggestions. ideas or the like, that Customer
sends to any BellSouth Company or to BBS relating to the Services or Equipment, unless Customer identifies it as Confidential Information.
BellSouth and BBS assume no obligation to proteel such information from disclosure and will be free to reproduce, use, and distribute the
information to others without restriction. BellSouth and BBS will also be free to use any ideas. concepts, know-how or techniques contained in such
6 of 8
S8tJrlBCtJTIALPR.Orf\If::'fAf\ I
t JElT reR ElIB~L63ljRC 8l:JTSIBC I3E:LL361d"'F111/.TFlle~'f ',R.rrrCr J PCRI\1I331CSH4 d~ ~'\. ...
.. \;)I)Y'"\\"..
...\'1-'
BBMA Agreement No. FL03-E591.QO
information or developed by them, for any purpose whatsoever including but not limited to developing, manufacturing and marketing Services and
Equipment incorporating such information. Nothing contained in this Section restricts the right and ability of BBS and BellSouth to use information
conceming the execution of this Agreement and the provision of the Services and Equipment to Customer in intemal publications.
16. Trade Name, Trademarks and Service Marks, Patents and Copyrights-
16.1 Neither Party is authorized to and will not use any name or mark of the other Party in any advertising, publicity or in any other commercial
manner without the prior written consent of the other Party.
16.2 Customer may use, copy and distribute the materials relating to the Services for intemal, noncommercial, informational purposes only.
Except as authorized in this paragraph, Customer is not being granted a license under any copyright, trademark, patent or other intellectual property
right in the material or the products, services, processes or technology described therein. BellSouth, its affiliates and/or any third party owner of such
rights retain all such rights. Customer shall have no ownership or property rights in the Services or in any documentation provided in connection with
the Services. Customer may make copies of such documentation solely for use in connection with its authorized use of the Services, and all such
copies shall include all copyright, trademark and other proprietary notices appearing in the original documentation. Upon the termination of the
Services to Customer, Customer shall return all copies of the documentation to BellSouth or certify destruction of such documentation.
16.3 All trademark, product and service marks contained on or associated with the Services and Equipment that are not BellSouth Company
marks are the trademarks of their respective owners. References to any names, marks, products, services or equipment of third parties do not
necessarily const~ute or imply BBS's or BellSouth's endorsement, sponsorship or recommendation of the third party, information, product or service.
16.4 Neither Party will make any media release or other public announcement relating or referring to the Agreement without the prior written
consent of the other Party.
17. Indemnlty-
17.1 If any Equipment, Services or Software fumished under this Agreement (other than Equipment or Software provided "As Is")
infringes any United States patent, trademark, copyright, or trade secret and a claim or suit is brought against Customer on that account,
BellSouth agrees to defend or settle any such claim or suit at BellSouth's expense. BellSouth will also pay all damages and costs that by final
judgment are assessed against Customer due to such infringement.
17.2 BellSouth's obligation as set forth in this Section is expressly conditioned upon the following: (a) that BellSouth shall be notified promptly
in writing by Customer of any claim or suit of which Customer is aware; (b) that BellSouth shall have sole control of the defense or settlement of any
claim or suit; (c) that Customer shall cooperate with BellSouth in all reasonable ways to facilitate the settlement or defense of any claim or suit; and
(d) that the claim or suit does not arise from Customer modifications, or from combinations of Equipment. Software or Services provided by
BellSouth with equipment, software or services provided by Customer or others, or from Customer's use of Equipment, Software or Services other
than in accordance with the applicable manufacturer's specifications.
17.3 If any Equipment, Software or Services becomes, or in BellSouth's opinion, is likely to become the subject of a claim of infringement,
BellSouth will, at its option: (a) procure for Customer the right to continue using the applicable Equipment, Software or Services; (b) replace the
Equipment, Software or Services with a non-infringing Equipment, Software or Services substantially complying with the specifications of the
Equipment, Software or Services; or (c) modify such Equipment, Software or Services so it becomes non-infringing and performs in a substantially
similar manner to the original Equipment, Software or Services.
17.4 If options 17.3(a), (b) or (c) above are not reasonably available to BellSouth, then BellSouth may elect instead to return the price paid for
the purchased Equipment, the one time fee paid for the licensed Software, or any amounts prepaid by Customer for the affected Services for any
period after BellSouth directs Customer to cease such use, which is in either case the subject or potential subject of an infringement claim, as then
depreciated based on Customer's depreciation schedule used for federal income tax reporting purposes.
17.5 To the extent allowed by Florida law, Customer will indemnify and save BellSouth harmless from and against all loss, liability, damage,
and expense, including all reasonable counsel fees, due to claims for infringement of United States patents, copyright, trademark, or other
intellectual property rights, or due to any other claims or causes of action by third parties of any nature whatsoever, arising from the use, in
connection with the Services or Equipment, of equipment, software or information not provided by BellSouth, or otherwise relating to or arising out of
Customer's use of the Services or Equipment.
18. Disputes - To the extent permitted by law, the Parties agree to submit to non-binding mediation any dispute, controversy or claim arising in
connection with this Agreement, or the breach, termination, validity or enforceability of any provision hereof (a "dispute") that is not resolved through
negotiation. This Agreement shall be govemed by, and construed in accordance with, the laws of the State of Florida, both substantive and
remedial, without regard to principles of conflict of laws. To the extent allowed by law, the exclusive venue for any litigation arising out of this
Agreement shall be Miami-Dade County, Florida, if in state court, and the U.S. District Court, Southern District of Florida, if in federal court. BY
ENTERING INTO THIS AGREEMENT, CUSTOMER AND BELLSOUTH EXPRESSLY WAIVE ANY RIGHTS EITHER PARTY MAY HAVE TO A
TRIAL BY JURY OF ANY CIVIL LITIGATION RELATED TO, OR ARISING OUT OF, THIS AGREEMENT.
19. General.
19.1 Except as set forth herein, neither Customer nor BellSouth may assign or transfer any of its rights, duties, or obligations with
respect to the Services without the other Party's written consent, which consent shall not be unreasonably withheld or delayed. Any attempted
assignment or transfer without the written consent of the relevant Party shall be void. Notwithstanding the foregoing, BellSouth may assign,
delegate or otherwise transfer its rights or obligations hereunder, in whole or in part, at any time to any entity owned in whole or in part by
BellSouth Corporation or by one or more of its direct or indirect subsidiaries, or subcontract the performance of any of its obligations under
this Agreement.
7 of 8
eaI4f"113E:14"',!1\L P"Ft6P'RI~T 1\ RX
~IQ:r reF!. 81f;GL8Sl:JRE: 6u I ;;)IUE:: c~LLa6lJTII'IJITI16l:1T WI R.1l^fL~:I~ "1!~MI33Iar4~~ ~ o'-l
.,.., ~\.1.,"\
BBMA Agreement No. FL03.E591 ~O
19.2 No action. regardless of form, arising out of the Agreement may be brought by either party more than one year after the cause of
action has arisen.
19.3 These terms and the Services and Equipment shall be governed by the laws of the State of Florida, without regard to its conflicts of
laws provisions. If any provision or provisions hereof shall be held to be invalid, illegal, or unenforceable, the validity. legality, and
enforceability of the remaining provisions shall not be in any way affected or impaired thereby.
19.4 No failure on the part of either Party to exercise any right or remedy arising directly or indirectly under this Agreement will operate as
a waiver of any right or remedy it may have, nor will an exercise of any right or remedy by either Party preclude any right or remedy otherwise
available to such Party.
19.5 The headings used in this Agreement are for convenience only and do not affect the meaning or interpretation of this Agreement.
19.6 Except as otherwise specifically stated in this Agreement, the provisions of this Agreement are for the benefit of the Parties hereto
and not for any other person.
Customer acknowledges that Customer has read and understands this Agreement and agrees to be bound by its terms and
conditions. Customer further agrees that this Agreement, and any Orders, constitute the complete and exclusive statement of the
agreement between the parties, superseding all proposals, representations, and/or prior agreements, oral or written, between the
parties relating to the subject matter of the Agreement. Acceptance of any Order by BellSouth is subject to BellSouth credit and
other approvals. This Agreement is not binding upon BellSouth until executed by an authorized employee, partner, or agent of
Customer and BellSouth. The undersigned warrant and represent that they have the authority to bind Customer and BellSouth to
this Agre ment. This Agreement may not be modified, amended, or superseded other than by a written instrument executed by
both pis. he undersigned warrant and represent that they have the authority to bind Customer and BellSouth to this
Agree en
(Signature)
David Dermer, Mayor
;P:ted ~e and Title)
q 10 03
I I
BELLSOUTH COMPANIES
By: BE})4'UTH B~~INESS~MS, INC.
By: ~W- ~
(\ (Signature)
BY:_()(1...J.~ W, ~-\-~~('
(Printed Name artd Title)
Date: L 1<..." I oL(
By:
By:
Date:
K
CLl
City
APPROVEDMTO
FORM & LANGUAGE
& FOR EXECUnON
')/fl,Hi'2
Date
80f 8
8ol~P'II3I~H IIt'\u....t"(Ut-'KIt:.1 AKY
NU I , 3/\ BI3GLv.,u"-,, OtlT61BC BIi:l.U:g' ':rl I 'AII,I Ie,,)"'!' .. f\1ll'!!14 "~f\r~16616rj~"<J~~..,\ 0"1