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C2009-408 - 10/13/2009 - Approved
AGREEMENT FOR SERVICES, SOFTWARE AND EQUIPMENT This Agreement for Software, Equipment and Services ("Agreement") is entered into by and between Positron Public Safety Systems Corp. ("PPSS") and City of Corpus Christi, Texas ("Customer"), as of September 25'h, 2009, or if no such date is indicated, then as of the latest date signed below ("Effective Date"). This Agreement consists of these terms and conditions and any quote, order, statement of work, exhibit, or similar document made under this Agreement and agreed upon by both Parties (each, an "Attachment" or a " uote") describing the services ("Services"), software object code and accompanying documentation ("Software") and/or hardware or other equipment ("Equipment") that PPSS agrees to provide to Customer. PPSS and Customer are referred to herein as "Parties" or "P rty". The term "Affiliate" has the meaning in Rule 405 of the U.S. Securities Act of 1933. 1 TERM. This Agreement will continue from the Effective Date until the expiration or termination of the latest ending Attachment or Quote. EQUIPMENT, SOFTWARE AND ONtiSITE SERVICES. 2.1 To the extent that an Attachment or Quote Q72545 provides for the sale of Equipment, the licensing of Software, or the provision of site survey, installation, project management or similar Services, the terms in Exhibit A will apply. 3 MAINTENANCE AND SUPPORT SERVICES. 3.1 To the extent that an Attachment or Quote Q72545 (attached hereto as Exhibit D) provides for maintenance and support services for the Equipment and Software, ("Maintenance and Suaaort Services'), such Services will be provided in accordance with PPSS' then current Maintenance and Support Services terms. The most recent such terms are attached as Exhibit B. PAYMENT. 4.1 Customer will pay the fees as described in Attachments or Quotes. Except as specified in an Attachment, recurring fees will be prepaid annually, and nonrecurring fees will be billed within thirty (30) days of the Attachment effective date or (if applicable) completion of the delivery or milestone to which the nonrecurring fees relate. Subject to Section 4.5 below, all invoices will be due and payable within thirty (30) days of invoice date. Any services requested by Customer and performed by PPSS before execution of an Attachment or outside the scope of the Attachment will be billed at PPSS' then current hourly rate. All prices and payments will be in U.S. dollars. 4.2 Any claim of tax exemption must be supported by appropriate documentation. 4.3 Unless otherwise provided in an Attachment, within thirty (30) days after any early termination of an Attachment (except due to PPSS' default), Customer will pay for Services received as of the date of termination plus an amount equal to the monthly recurring fees times the remaining months in the term of the applicable Attachment. The "monthly recurring fees" will be equal to the average monthly fee invoiced to Customer in the six (6) months prior to the notice of termination. The Parties agree that PPSS has made pricing concessions based on such minimum fees and that any shortfall payment due under this paragraph is a fair approximation of PPSS' damages, not a penalty. These fees are in addition to any nonrecurring fees due under the terms of the Attachment. 4.4 If Customer fails to pay any invoice when due (other than as provided in Section 4.5), interest will accrue as of the date of delinquency at the lower of two percent (2%) per month or the highest rate permitted by applicable law. Upon each such delinquency, PPSS may provide one (1) or more Default Notice(s) to Customer (see Section 9 below). If the delinquency is not cured within ten (10) days after delivery of the Default Notice, PPSS may, by so indicating in the Default Notice (a) suspend Services and charge a reinstatement fee or deposit on any recommencement; and/or (b) amend the prices for the remaining term of the applicable Attachment. These remedies are in addition to any other remedies available to PPSS, and apply notwithstanding anything to the contrary in this Agreement or the Attachment(s). Customer will pay all reasonable costs of collection (including attorney fees). 2009-408 ~ 9ood faith, Customer may to exceed one (1) month's M2009-288 10/13/09 recurring fees for the applicable Service. To dispute any invoice, Customer must (a) notify PPSS within thirty (30) days of the invoice, specifying the nature of the dispute; and (b) pay any undisputed amounts as provided herein. Both Parties will in good faith, attempt to promptly resolve any disputed invoices. 4.6 No set off, deduction or cross-collateralization is permitted. PPSS may change credit or payment terms at any time when, in PPSS' opinion, Customer's financial condition, previous payment record, or Customer's relationship with PPSS so warrants. 5 CONFIDENTIALITY. EXCept t0 the extent disclosures are required under applicable federal, state or local freedom of information laws or regulations ("Public Request"), the terms of Exhibit C (Confidentiality Terms) will apply to this Agreement. Upon any Public Request, Customer may disclose the applicable Confidential Information, but only to the extent required by applicable law or regulation, and Customer will give sufficient notice to PPSS to allow PPSS an opportunity to object or limit the scope of disclosure. LIMITED WARRANTY. 6.1 PPSS warrants that Services will be provided in a workmanlike manner in accordance with industry standards and by individuals with suitable skills and abilities. Except as provided in an Attachment, Services will be deemed accepted when performed. Equipment and Software warranties are stated in Exhibit A. 6.2 EXCEPT AS STATED IN SECTION 6.1 AND EXHIBIT A, PPSS MAKES NO EXPRESS OR IMPLIED WARRANTIES, INCLUDING ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NONINFRINGEMENT. PPSS EXPRESSLY DENIES ANY REPRESENTATION OR WARRANTY ABOUT THE ACCURACY OR CONDITION OF DATA OR THAT THE SERVICES, SOFTWARE, EQUIPMENT OR RELATED SYSTEMS WILL OPERATE UNINTERRUPTED OR ERROR-FREE. 6.3 Customer will provide information reasonably required or requested by PPSS to perform the Services, including as applicable: network architectures and diagrams; current process performance statistics; interfaces and access to Customer or third party software, equipment, or systems; routing and network addresses and configurations; key contacts for problem escalation, and the information stated in Exhibit A (collectively "Customer Materials"). Customer warrants that (a) Customer is solely responsible for the content and rights to use Customer Materials; (b) Customer Materials will be accurate; and (c) PPSS' use of Customer. Materials will not violate the rights of any third party. LIMITATION OF LIABILITY. 7.1 EXCEPT FOR THE PARTIES' INDEMNIFICATION AND PAYMENT OBLIGATIONS AND CLAIMS RELATING TO VIOLATIONS OF SECTION 5 OR 10, NEITHER PARTY WILL BE LIABLE TO THE OTHER FOR ANY INDIRECT, EXEMPLARY, SPECIAL, PUNITIVE, CONSEQUENTIAL, OR INCIDENTAL DAMAGES OR LOSS OF GOODWILL, DATA OR PROFITS, OR COST OF COVER. PPSS TOTAL LIABILITY TO CUSTOMER FOR DAMAGES UNDER THIS AGREEMENT SHALL BE LIMITED TO DIRECT DAMAGES. 7.2 THE FOREGOING LIMITS ON LIABILITY WILL APPLY WHETHER THE APPLICABLE CLAIM ARISES OUT OF BREACH OF EXPRESS OR IMPLIED WARRANTY, CONTRACT, TORT (INCLUDING NEGLIGENCE), OR STRICT PRODUCT LIABILITY, Page 1 Positron Public Safety PPSS Agreement for Services, Software and Equipment AND EVEN IF THE PARTY HAS BEEN ADVISED THAT SUCH DAMAGES ARE POSSIBLE OR FORESEEABLE. 7.3 NO CAUSE OR ACTION WHICH ACCRUED MORE THAN FOUR (4) YEARS PRIOR TO THE FILING OF A SUIT MAY BE ASSERTED BY EITHER PARTY. INDEMNIFICATION. 8.1 ev PPSS. PPSS agrees to indemnify and hold harmless Customer from and against any and all third party claims, actions, suits, proceedings, costs, expenses, damages and liabilities, including reasonable attorneys' fees and expenses (collectively, "Claims") for physical injury or death or damage to real property to the extent caused by PPSS' gross negligence or willful misconduct. 8.2 Procedures. The Party claiming indemnification will (a) notify the indemnifying party of any claim for which the indemnity may apply; (b) relinquish control of the defense and any settlement of the claim to the indemnifying party; and (c) provide the indemnifying party with all assistance reasonably requested to defend the claim. The indemnifying party will be entitled to settle any claim without the written consent of the indemnified party if such settlement only involves the payment of money by the indemnifying party and does not affect any rights of the indemnified party. The indemnified party, at its own expense, may participate in the defense through its counsel. The indemnities herein will not apply to the negligence of the indemnified party. 8.3 Immunity. If applicable and to the extent not prohibited by applicable law, each Party will be entitled to not less than the same benefits and protections afforded by any law, regulation or other applicable rule which extends protections to the other Party in any form, including but not limited to governmental or other immunity, indemnification, or other protection. Neither Party will object to or interfere with the assertion of such immunity by the other Party. 9 TERMINATION AND EXPIRATION. If either Party materially defaults in the performance of any material provision of any Attachment or this Agreement, and such default is not cured within (a) for any late payments, ten (10) days; or (b) for all other matters, thirty (30) days, after notice ("Default Notice") specifying in reasonable detail the nature of the default, then the non defaulting party may by further notice terminate for cause the Attachment or, if applicable, the Agreement and all Attachments. The cure period will extend for up to thirty (30) more days if PPSS continues to use good faith efforts to cure its default. 9.1 Termination for non-appropriation funds. The continuation of this Agreement is subject to the Customer's annual budget process. If sufficient funds are not appropriated for the continuation of this contract for the next fiscal year, then the Customer may terminate this Agreement without cause and without penalty due to non-appropriation of funds, upon thirty (30) days notice to PPSS. 10 INTELLECTUAL PROPERTY. PPSS will have and retain full and exclusive ownership of all intellectual property rights associated with any design, data, specification, know-how, software, device, technique, algorithm, method, discovery or invention, whether or not reduced to practice, relating to any (a) Software, Equipment and related documentation; (b) Service, including any PPSS work product; (c) result of a Service; (d) Confidential Information; and/or (e) enhancement or improvement to or derivative of any of the foregoing (collectively, including the intellectual property rights relating thereto, "PPSS IP"). Customer receives a nonexclusive, nontransferable, terminable license to use the PPSS IP only as necessary for Customer to use the Services, Software and Equipment and subject to the terms of any applicable Attachment. Customer receives no other right, title or interest in or license to use any PPSS IP. Additionally, Customer will not disclose or allow access to PPSS IP, including without limitation, software and systems, by anyone other than Customer's employees and subcontractors who have a need to access the PPSS IP and who are bound by law or written agreement to comply with Customer's duties under this Agreement. Customer will not directly or indirectly reverse engineer, decompile, disassemble or copy any PPSS IP. Customer will return all PPSS IP at the conclusion of the applicable Service. Customer will cooperate to take such actions reasonably requested to vest ownership of PPSS IP in PPSS. 11 ON-SITE SERVICES. If PPSS personnel perform Services on Customer's premises, (a) Customer will provide all appropriate facilities, access, furnishings, equipment, software, documentation, passwords, and data; (b) Customer will maintain adequate security, safety, utilities, and environmental standards, consistent with industry standards; and (c) while on Customer's premises, PPSS personnel will comply with Customer's standard rules and regulations consistently applied and communicated to PPSS in advance. Additional provisions in Exhibit A may also apply. 12 INSURANCE. 12.1 PPSS will maintain during the term of this Agreement (a) Workers' Compensation insurance as prescribed by the law of the state or province in which the Services are performed; (b) employer's liability insurance with limits of at least $500,000 for each occurrence; (c) comprehensive automobile liability insurance if the use of motor vehicles is required, with limits of at least $1,000,000 combined single limit for bodily injury and property damage for each occurrence; (d) Commercial General Liability ("CGL") insurance, including Blanket Contractual Liability and Broad Form Property Damage, with limits of at least $1,000,000 combined single limit for bodily injury and property damage for each occurrence; (e) Professional Liability or Errors and Omissions insurance in the amount of at least $1,000,000 for each occurrence; and (f) excess or umbrella liability at a limit of no less than $5,000,000 per occurrence and aggregate in excess of the underlying coverage required above. The CGL, employer liability, excess or umbrella liability, and automobile liability policies will designate the other Party and its officers, directors and employees as an Additional Insured. 12.2 On Party's written request, PPSS will furnish certificates evidencing the foregoing insurance. Party will endeavor to notify the other in writing at least thirty (30) days prior to any cancellation or termination of its policy. 13 MISCELLANEOUS 13.1 Force Maieure. Neither Party will be liable for delays and/or defaults in its performance (other than Customer's obligation to pay fees) due to causes beyond its reasonable control, including the following: acts of God; war, terrorism or the public enemy; fire or explosion; flood; stability or availability of the Internet; the elements; telecommunication system failures; technology attacks, epidemic; riots; embargoes; quarantine; viruses; changes in applicable laws, rules or regulations, strikes or lockouts; disputes with workmen or labor disturbances; total or partial failure of transportation, utilities, delivery facilities, or supplies; or acts or requests of any governmental authority. 13.2 Notices. All notices required hereunder will be made in writing to the addresses below the signature line. Notices will be acceptable only if provided as follows, and will be deemed given (a) one (1) day after deposit with an overnight courier, charges prepaid; (b) three (3) days after mailing by first class, certified, or Registered Mail charges prepaid, return receipt requested; and (c) when delivered by hand with confirmed receipt. 13.3 Chanoes and Improvements. PPSS may enhance and/or modify Services, Software, Equipment and specifications in response to changes in laws, on reasonable notice to Customer. 13.4 Independent Contractors. The Parties are independent contractors, and nothing herein will be construed to any other effect. 13.5 Exclusivity. Except as specified in an Attachment, neither Party is bound by any exclusivity to the other under this Agreement. 13.6 No Third Party Beneficiaries. This Agreement benefits Customer and PPSS. There are no intended third party beneficiaries, including Customer's customers. 13.7 Severabilitv: No Waiver. To the extent any provision of this Agreement or any Attachment is invalid or unenforceable; it will be ineffective without affecting the remaining provisions. No course of dealing or failure of a Party to enforce any provision of this 9/25/09. Page 2 PPSS Agreement,for Services, Sofhvare and Equipment Agreement, or to exercise any right, obligation, or option provided hereunder, will be deemed to amend this Agreement or constitute a waiver of the same. 13.8 Interpretation. In this Agreement, "including" means "including, without limitation", and "days" refers to calendar days. This Agreement and each Attachment is the joint work product of PPSS and Customer; no inference may be drawn or rules of construction applied against either Party to interpret ambiguities. If any terms of this Agreement and an Attachment conflict, the terms of the Attachment wil- govern for that Attachment only. No preprinted or form terms on a purchase order will apply. 13.9 Assignment. This Agreement will be binding on the successors and assigns of both Parties, provided however, that neither Party may transfer or assign this Agreement without the prior written consent of the other, not to be unreasonably withheld. However, PPSS may assign this Agreement to an Affiliate or to an acquirer of all or part of PPSS' business or assets without such consent. Any other assignment or transfer by either Party will be void and of no effect. 13.10 Governing Law; Venue. This Agreement will be governed by and construed under the laws of Colorado (or, if indicated, the following applicable state law rather than Colorado: Texas), without regard for its choice of law principles. Neither the United Nations Convention on Contracts for the International Sale of Goods nor the Uniform Computer Information Transactions Act will apply. 13.11 Remedies. Either Party will be entitled to immediate injunctive relief, without the posting of a bond or demonstration of irreparable harm, for breach of Section 5 or 10 above. Except as stated herein, the rights and remedies of each Party are in addition to any other rights or remedies available at law or in equity. 13.12 Laws. Regulations. Permits. Each Party represents that it has or will obtain all consents, licenses, permits and certificates required to receive or perform the Services, use the Software and Equipment, and to do business in the United States. If PPSS reasonably believes that continued performance of the Services would cause PPSS or Customer to violate any law, statute, ordinance, court order or regulatory agency rules, PPSS may cease the applicable Service(s) to the extent reasonably required to correct or avoid the violation. 13.13 Advertising and Publicitv. Except for materials already made public, neither Party will distribute any news releases, articles, brochures, speeches, or advertisements concerning this Agreement, nor use the other Party's name or trademarks (or any variation thereof), without the other Party's prior written consent, not to be unreasonably withheld or delayed. PPSS may, however, use Customer's name and trademarks in a list of customers, or in connection with written sales or promotional materials. 13.14 Survival. Sections 5, 7, 8, 10 and 13 will survive the expiration or termination of this Agreement or any Attachment. 13.15 Entire Agreement. This Agreement, together with any Attachment(s), constitutes the Parties' entire understanding, and supersedes any prior written or oral agreements or understandings, related to the subject matter hereof. This Agreement may be executed in any number of counterparts and/or by facsimile or scanned electronic (e.g..pdf, .tif) copy, all of which taken together will constitute a single instrument. This Agreement or any Attachment may be modified only by a mutually executed amendment. This Agreement is not enforceable unless properly executed by both Parties. Representing that it has full authority to enter into and perform under this Agreement, each of the Parties hereby executes and authorizes/this Agreement as of the Effective Date. CITY OF C RPUS CHRISTI, TEXAS POSITRON PUBLIC SAFETY SYSTEMS CORP. Auth Signature A orized Signature 1 ~ ~ ' Mary Hester 'Name T ed or Printed Name Typed or Printed Executive Vice President ~~ ~ Z-~ e~ Title Dated signed: Title Date signed: 1 Address for Notices: ~~ ~~~((11~~yy ~' Address for Notices: 321 John Sartain Street ~~~fa:~L.k...L AUTNURiZED 5101 Buchan With a copv to: Corpus Christi, TX 78401 4 stage - 4~h floor 1601 Dry Creek Dr. Attn: ~ ~~G« ~ ® ~ Montreal, QC H4P 2R9 Longmont, CO 80503 Tel: Attention: Legal Department Attention: Legal Department _~~~ Tel: (514) 345-2200 Tel:(720) 494-5800 SECRE?ARY , Approved as to form: i ~ 5 ~~ Positron. :'"A uiiar ~VL ~ Llsa 9 Attomey Assistant pprov as For City Attomey to Form A~^'f; ARMAtW?0 CHfIPA CRY SECRETAR`~ 9/25/09. Page 3 PPSS Agreement for Services, Software and Equipment EXHIBIT A Software, Equipment and On-Site Services Terms These terms ("Terms') apply to Software, Equipment and On-Site Services if ordered in a Quote. These Terms are in addition to, and do not modify the terms of the other parts of the Agreement to which this Exhibit is attached. If any of these Terms conflict with the Agreement or the Quote, these Terms will control as they relate to Software, Equipment and On-Site Services only. Capitalized terms have the meaning defined in these Terms or, if not defined, the meaning set forth in the Agreement. SOFTWARE. 1.1 License Grant. Subject to these Terms and the Agreement, PPSS grants to Customer a personal, nonexclusive, nontransferable, non-sublicensable, license to use the Software at the locations ("Site") and on the number of servers, workstations and users or other applicable metric set forth in the Quote (the "Permitted Workstation(s)" or "Permitted Use"), solely for Customer's internal purposes, to copy the Software onto a storage device attached to each Permitted Workstation, and to make one (1) copy solely for backup and disaster recovery purposes. 1.2 Ownership. Nothing herein will transfer or convey to Customer any right, title or interest in or to the intellectual property rights in the Equipment or the Sofiware. The Software will be deemed PPSS IP, and all right, title and interest in and to the Software are vested in and will remain the property of PPSS or its licensors. All ideas, concepts, methods, know-how and techniques related to the Software will remain the sole property of PPSS. The Software is being licensed to Customer only. Customer agrees not to claim or contest the title or ownership of PPSS or its licensors in or to the Software or the intellectual property rights therein. 1.3 Restrictions. Customer will not itself, or through any Affiliate, agent or other third party: (a) sell, lease or sublicense or otherwise transfer the Software; (b) decompile, disassemble, reverse engineer or otherwise attempt to derive source code from the Software; (c) modify or enhance the Software or write or develop any derivative software or any other functionally compatible, substantially similar or competitive products; (d) network the Software or use the Software to provide processing services to third parties, commercial timesharing, rental or sharing arrangements or otherwise use the Software on a service bureau basis; (f) provide, disclose, divulge or make available to, or permit use of the Software by any third party without PPSS' prior written consent; or (g) use or copy the Software except as permitted hereunder. 1.4 Term and Termination. The license granted hereby will remain in force until terminated, if at all, due to a material breach by Customer that is not cured within fifteen (15) days following notice. Termination of the license granted hereby will not limit PPSS from pursuing all remedies available to it, including injunctive relief, nor will such termination relieve Customer's obligation to pay all fees that have accrued or are otherwise owed by Customer under the Agreement. Upon termination, Customer will to the extent applicable (a) cease using the Software, and (b) certify to PPSS within one (1) month after termination that Customer has destroyed or has returned to PPSS the Software and all copies. This requirement applies to copies in all forms, partial and complete, in all types of media and computer memory, and whether or not modified or merged into other materials. 1.5 Audit. Upon forty-five (45) days written notice, PPSS may audit Customer's use of the Software. Customer agrees to cooperate with PPSS' audit and provide reasonable assistance and access to information. Any such audit shall not unreasonably interfere with Customer's normal business operations. If Customer does not pay, PPSS can end Customer's maintenance and support, licenses and/or the Agreement. Customer agrees that PPSS shall not be responsible for any of Customer's costs incurred in cooperating with the audit. 2 EQUIPMENT. Equipment will be shipped FOB Montreal, Canada (Incoterms 2000). Unless otherwise specified by Customer on the Quote, PPSS will ship Equipment in accordance with PPSS' customary method. All shipping and handling charges will be prepaid by PPSS and charged to Customer. PPSS will not be liable for any loss, damages or penalties for delay or failure in delivery for any cause. 3 ON-SITE SERVICES. 3.1 PPSS Oblioations. If PPSS performs On-Site Services, such as installation ("Installation"), site survey, project management, training or cutover services (as applicable, "On-Site Services"), PPSS will: (a) Install and perform acceptance testing on the Software and Equipment at the Site in accordance with PPSS' normal installation and testing practices. (b) Perform training as specified in the Quote. (c) Designate a project manager with authority, competence and responsibility to communicate information to PPSS and to act as liaison between PPSS and Customer. 3.2 Customer Obligations. If On-Site Services are ordered, Customer will, at its expense: (a) Designate a general project coordinator, with authority, competence and responsibility to communicate information to PPSS and to act as liaison between Customer and PPSS. (b) Provide unobstructed access for the installation and testing of the Software and Equipment (collectively, "System") throughout the Site consistent with the requirements of installation and testing, including obtaining the necessary consent from the landlord, the building owner, the mortgager and/or any other third parties having an interest in the installation Site to install the Software and Equipment, and to assist PPSS in obtaining any other necessary approvals and permits for same. (c) Monitor acceptance testing. (d) Provide access for installation of cable and Equipment throughout the Site. (e) Ensure that any Equipment provided by Customer meets PPSS' specifications. (f) Provide, within the Site, suitable and easily accessible floor space to permit for secure storage of tools, test sets, lockers and employees' personal effects. (g) Ensure that the Site will meet all temperature, humidity controlled, air-conditioned, and other environmental requirements set forth in the applicable specifications and will be dry and free from dust in such condition as not to be injurious to the employees or agents of PPSS or the Software or Equipment to be installed. (h) Provide all patching, painting, openings, conduits, floor reinforcements or other mechanical modifications pertinent to the installation. (i) Provide ample electric current of proper voltage for any necessary purpose suitably terminated in a room where it is required, including properly grounded copper cold water pipe before meter ground at the Site as specified by PPSS. (j) Provide an exclusive VPN tunnel to allow for remote diagnostics and a modem for establishing the remote access by PPSS. (k) Dispose of all Software and Equipment packing material. (I) Provide staff if required at what may end up being nonstandard work times (early, late and weekends). 9/25/09. Page 4 (m) Maintain, at all times, a procedure, external to the Software and Equipment, for the reconstruction of lost or altered files, data, or programs deemed necessary by Customer. (n) Ensure that PPSS is advised and informed in a timely and detailed fashion of any problems with the Software or Equipment. (o) Provide PPSS with any information required under this Agreement for the performance of same. (p) Ensure Customer's third party vendors collaborate with PPSS in a reasonable and timely manner. (q) Ensure proper staff is On-Site for technical training, if applicable. (r) Be responsible for any modification, changes, or repairs to any wall covering, cut outs or modifications to furniture needed during or after the installation of equipment. 3.3 Exclusions, Changes. If On-Site Services are prevented, interrupted or delayed due to Customer's failure to meet its obligations stated above, Customer will be responsible for applicable travel and lodging costs, charges at PSSS' standard hourly rates for the time during which such On-Site Services were prevented, interrupted or delayed, and any other direct costs incurred by PPSS. PPSS will not be deemed to be in default nor be held responsible for any delays or failures resulting from an event of Force Majeure or for any delays resulting from Customer or any of Customer's third party vendors or from Customer's obligations stated above. Changes to the design or installation plan by Customer after the original Quote will be considered a request for a change order. Upon receipt of a request for a change order, PPSS will within ten (10) business days either accept or refuse the request for a change order and will issue a new quote to cover any costs, if applicable, associated with the change order. 4 ACCEPTANCE. Unless PPSS is performing Installation, the Software and Equipment will be deemed accepted upon delivery. If PPSS is performing Installation, then Customer will provide PPSS with a written notice of acceptance or reasonable rejection within ten (10) calendar days after PPSS' notice of System Cutover ("Notification Date"), which acceptance will not be unreasonably withheld or conditioned. If Customer rejects the Software and Equipment, it will notify PPSS in writing within ten (10) calendar days of the Notification Date and will specify the failure with respect to the specifications. PPSS will use commercially reasonable efforts to promptly diagnose and correct all identified failures. If Customer fails to provide written notice of rejection within the time stated above, acceptance will be deemed to have occurred. "Svstem Cutover" will mean the first date that the Software and Equipment is used for live call-taking or dispatching. The date of acceptance will be referred to as the "Acceptance Date". 5 LIMITED WARRANTY 5.1 Subject to the provisions of this paragraph, PPSS warrants that the PPSS Software and Equipment will perform substantially in accordance with PPSS' specifications for twelve (12) months from the Acceptance Date. PPSS will, at its sole discretion and as Customer's sole remedy, repair or replace the problem Software and Equipment, provided that the problem can be reproduced on either PPSS' or Customer's systems. Replacement parts are warranted to be free from defects in material and workmanship for ninety (90) days or for the remainder of the limited warranty period of the PPSS Equipment they are replacing, whichever is longer. 5.2 Freight costs to ship defective Equipment andlor Software to PPSS are borne by Customer, with return of replaced or repaired Equipment and/or Software to be at PPSS' expense. 5.3 PPSS will not be obligated to repair or replace any Software or Equipment which (i) has been repaired by others; (ii) has been abused or improperly handled, stored, altered, or used with third party material or equipment; (iii) has been subject to power failures or surges, lightning, fire, flood or accident; or (iv) has not been installed by PPSS or a PPSS authorized technician. 5.4 PPSS will pass through to Customer any and all warranties provided by third party manufacturers for products supplied to PPSS Agreement for Services, Software and Equipment Customer by PPSS under this Agreement. Customer' s access to and use of third parry Equipment and Software will be and remain subject to all terms, conditions and licenses imposed by the manufacturers and/or third party licensors of such third party Equipment or Software and Customer will comply with same. PAYMENT 6.1 Customer will pay to PPSS the total amounts identified on the Quote for Software, Equipment and On-Site Services ordered under the Quote, according to the following terms (which will supersede any terms in the Quote): • 30% -upon execution of this Agreement • 30% -upon shipment • 30% -upon System Cutover • 10% -upon Acceptance Maintenance and Support Services shall be payable annually as set forth in the Quote and payments shall be due upon each anniversary of System Acceptance. 6.2 Cancellation Fees. Should Customer cancel, prior to shipment, any Software, Equipment or On-Site Services, Customer agrees to pay to PPSS cancellation charges, not as a penalty, an amount equal to twenty-five percent (25%) of the purchase price of the cancelled order. Anything that has been specifically developed for Customer, including any special order or custom Software or Equipment, will not be subject to cancellation. Cancellation or rescheduling is not permissible after shipment. 7 THIRD PARTIES. Customer covenants and undertakes to take all reasonable precautions to prevent third parties from using the Software or Equipment in any way that would constitute a breach of these Terms or the Agreement. 9/15/09. Page 5 PPSS Agreement for Services, Software and Equipment Exhibit B Standard Maintenance and Support Services Terms These Standard Maintenance and Support Services Terms ("MSS Terms") apply if Customer has ordered any of the services detailed herein pursuant to the Quote. Any services detailed herein that have not been ordered by the Customer shall not apply or be provided to Customer by PPSS. These terms are in addition to, and do not modify the terms of the Agreement to which this Exhibit B is attached. If any of these MSS Terms conflict with the Agreement or the Quote, the terms of the Quote will prevail as they relate to the MSS Terms only and the MSS Terms will prevail over the terms of the Agreement. All capitalized terms not defined in these MSS Terms shall have the meanings set out for such terms in the Agreement. 1.0 Description of Maintenance and Support Services 1.1 Help Desk Support If the Customer has purchased Help Desk Support, PPSS' Help Desk shall be accessible by the Customer twenty-four (24) hours a day, seven (7) days a week at 1-800-361-2596 to take calls from Customer and perform initial troubleshooting by remote connection. The Customer shall also have access to PPSS' on-line services: h ttpaltechsupoort.positron911.comlhelpdesk/. Help Desk Response Time Goals and Severity Levels SEVERITY DEFINITIONS RESPONSE PROBLEM CORRECTION LEVEL TIME GOALS 1 Product Failure/Loss of Service: 15 minutes PPSS shall provide the Customer with a program code correction, program code patch, or a Severity Level 1 problems involve a procedure for the Customer to bypass or work System failure and a major loss of around the defect in order to continue operations. If functionality that renders the entire a bypass procedure is used, PPSS shall continue System inoperable. defect resolution activity, on a high severity basis, until a program correction code or patch is provided to the Customer. 2 Severely Impaired Functionality (more 1 hour PPSS shall provide the Customer with a program than 50%): code correction, program code patch, or a procedure for the Customer to bypass or work Severity Level 2 problems involve the around the defect in order to continue operations. If failure or toss of functionality of a bypass procedure is used, PPSS shalt continue noncritical functional components or problem or defect resolution activity, on a high features, while the System itself remains severity basis, until a program correction code or operable. patch is provided to the Customer. Severity Level 2 involves a major impact such as a loss of 50% of call taking capacity or a loss of all of dispatch or the loss of a major functionality (e.g. no delive of either ANI or ALI . 3 Noncritical system failure (less than PPSS shall provide the Customer with a program 50% : 8 hours code correction in a maintenance release. This class of problem requires action from the Help Desk within a short time Severity Level 3 problems may cause performance degradation or system components to malfunction. Severity Level 3 may involve one (1) osition nonfunctionin . 4 Minor Issue: 2 days Code correction may be provided in a future maintenance release. If, however, code correction This class of problem is not service- in a future maintenance release is not achievable by affecting and includes problems such as PPSS using commercially reasonable efforts, PPSS incorrect operation of a minor will make a commercially reasonable effort to functionality or System component that is provide a work around solution. infrequently used, and problems that have feasible work-around available (e.g. incorrect operation of a functionality of 911 without loss of all of dispatch). Core functionali is functional. 1.2 Software Evergreen If the Customer has purchased Software Evergreen, PPSS shall provide the Customer with each applicable new release, upgrade and maintenance release of the Software as detailed in the Quote, for the Permitted Workstations. The Customer is responsible for installation of all of these releases. Should the Customer prefer to have PPSS deploy a release, PPSS shall 9/25/09. Page 6 PPSS Agreement,for Services, Software and Equipment dispatch appropriate personnel to perform the upgrade on a mutually agreed upon date at PPSS' then current prices for such services. The Software Evergreen provided hereunder does not include any of the following: (a) Implementation, training or installation. Upon reasonable notice from the Customer, PPSS shall provide implementation, training and installation services for a new release, a maintenance release or an upgrade on a time and materials basis at PPSS' then current rates for such installations services. (b) Modifications or customization of the Software other than corrections of defects made or provided under these MSS Terms; (C) Consultation for new programs or equipment; (d) Correction of problems, and assistance regarding problems, caused by operator errors, including but not limited to the entry of incorrect data and the maintenance of inadequate backup copies and improper procedures; and/or (e) Correction of errors attributable to software other than the licensed Software. Upgrade of the Customer's operating system, Equipment and/or third party software may be required from time to time to support new releases, maintenance releases or upgrades of the Software. Customer shall be solely responsible for the cost of such upgrade. 1.3 OnSite Maintenance If the Customer has purchased On-Site Maintenance and should PPSS' Help Desk be unable to resolve a problem, a technician shall be dispatched On-Site. On-Site Maintenance shall include the following: (a) all labor required to repair or replace the System or any component thereof; and (b) availability of technicians on a seven (7) days a week, twenty-four (24) hours a day basis. Such technicians, upon receipt of a support or maintenance call, will be at the Customer Site within the times set out in the table below. The On-Site time arrival times stated below refer to the elapsed time between the initial call placed by the Customer to PPSS and tha arrival of a technician On-Site- Severity 1 Severity 2 Severity 3 Severity 4 and 5 Arrival On-Site Goals: 4 hours after initial PPSS contact. 4 hours after initial PPSS contact. 24 hours after initial PPSS contact. next business day after initial PPSS contact These On-Site response times assume that the Customer is located within a suitable distance from a PPSS service center or an authorized PPSS service provider or technician, failing which Customer must contact PPSS for applicable On-Site response times. If the Customer did not purchase On-Site Maintenance but requests a technician On-Site, PPSS shall dispatch a technician to the Site on a time and materials basis at PPSS' then current rates. 1.4 Extended Hardware Warranty If the Customer purchased Extended Hardware Warranty, PPSS warrants that the Equipment shall perform in accordance with PPSS' specifications. The warranty fully covers workmanship, materials and labor. The Extended Hardware Warranty includes use of PPSS' Help Desk and repair or replacement of PPSS manufactured Equipment or components thereof. The Extended Hardware Warranty shall commence upon expiry of the original warranty and shall remain in force for the period specified in the Quote. If an Equipment problem arises, PPSS shall, at its sole discretion, repair or replace the problem unit and return it to the Customer within ten (10) days of receipt of said unit. Freight costs to ship defective Equipment to PPSS are borne by the Customer, with return of replaced or repaired Equipment to be at PPSS' expense. 1.6 Advance Replacement If the Customer has purchased Advance Replacement, then in the event that any PPSS manufactured Equipment is defective during the Term, PPSS shall under this program, provide Customer with a replacement unit at no additional charge. The replacement unit will be shipped within twenty-four (24) hours of receiving a request from Customer. Customer must return the defective Equipment to PPSS within ten (10) business days, failing which Customer shall be charged for the replacement unit. 2.0 Exclusions to Maintenance and Support Services The following services are outside the scope of the Maintenance and Support Services provided by PPSS and may result in additional charges, on a time and material basis: (a) Repair of damage or the increase in service time due to any cause external to the System which adversely affects its operability or serviceability, including but not be limited to, fire, flood, water, wind, lightning, and transportation of the System from one (1) location to another; (b) Repair of damage or the increase in service time caused by failure to continually provide a suitable installation environment, including, but not limited to, the failure to provide adequate electrical power, air conditioning or humidity control, or the Customer's improper use, management or supervision of the 9/25/09. Page 7 PPSS Agreement for Services, Sofh~are and Equipment System including, without limitation, the use of supplies and accessories. Proper use and environmental requirements are determined by the Product documentation; (c) Repair of problems caused by the use of the System for purposes other than for which it is designed; (d) Repair of problems caused by changes to the Equipment and/or the network made without obtaining PPSS' prior approval; (e) Repair or replacement of any item of the System which has been repaired by others, abused or improperly handled, improperly stored, altered or used with third party material, software or equipment, which material, software or equipment may be defective, of poor quality or incompatible with the System, and PPSS shall not be obligated to repair or replace any component of the System which has not been installed by PPSS or a PPSS authorized technician; (f) Removal, relocation and/or reinstallation of the System or any component thereof; (g) Diagnosis time directly related to unauthorized components and/or misuse of the System, whether intentional or not; (h) Any design consultation such as, but not limited to, reconfiguration analysis, consultation with the Customer for modifications and upgrades which are not directly related to a problem correction; and/or (i) Provision of any operational supplies, including by not limited to, printer paper, printer ribbons, toner, printer cartridges, photographic paper, magnetic tape and any supplies beyond those delivered with the System. 3.0 Problem Management Flow The Public Safety Answering Point Supervisor (the "PSAP Supervisor'), as appointed by the Customer, shall place a call to PPSS' Help Desk at 1-800-361-2596 to report a trouble incidence. Should the first level support technician not be able to resolve the trouble and require assistance, he/she may escalate the problem to PPSS' second level support technician. Should the second-level support technician be unable to resolve the problem, the problem shall be further escalated to the Engineering Department. In the event that PPSS and the Customer are unable to resolve a problem remotely and the Customer has purchased On-Site Maintenance, PPSS may decide to dispatch technical personnel On-Site to resolve the problem. If the Customer has not purchased On-Site Maintenance, then, at Customer's request, PPSS will coordinate with the Customer to dispatch a technician On-Site, at a mutually agreeable schedu-e. On-Site services requested by the Customer shall be charged by PPSS to the Customer on a time and material basis, at PPSS' then current rate. PPSS shall not send a technician On-Site without first obtaining Customer's approval. PPSS shall not be held responsible for delays in resolution and/or any damage to the System in the event that PPSS deems it necessary to send a technician On-Site to assist Customer and the Customer refuses same. The trouble ticket is closed only with the agreement of the Customer's PSAP Supervisor. 3.1 Interface to the Customer Site In order to provide the agreed level of support, PPSS' technicians shall require access to the Site. Methods of access are as described in the following sections. (a) Remote Connection PPSS requires that the Customer provide an exclusive VPN tunnel and a modem so that PPSS technicians may remotely login to the System. PPSS technicians may need remote access to the System to analyze the System configuration, aid in problem analysis or to modify the System configuration for a problem work around. Remote access may also be used for transmission of Software updates to the Customer. Remote access must be available twenty-four (24) hours a day, seven (7) days a week. PPSS' request to halt any System functionality shall require the PSAP Supervisor's approval. PPSS shall not perform any service-affecting activity without informing the PSAP Supervisor in advance and receiving proper authorization. PPSS recognizes the need for security of remote access facilities. PPSS shall work within the Customer's security guidelines whenever possible. If the Customer's remote access facility is dysfunctional, PPSS shall not be held liable for response times. (b) Access to Site The Customer shall provide PPSS' personnel or its local service provider with full access to the Site at all required times. 4.0 Breach or Default Should either Party be in breach or default of its obligations in relation to these MSS Terms, the other Party shall give a written notice stating that a breach or default exists. If the Party in default has not started or completed appropriate corrective action within thirty (30) days of receipt of the written notice, then the other Party may at its option send a notice of default and may elect at its sole discretion to cancel these MSS Terms and to exercise any right or remedy it has in law, subject to these MSS Terms. Should the Customer cancel these MSS Terms pursuant to this Section 4.0, Customer shall be entitled to a prorated refund of any prepaid and unused maintenance and support services fees paid hereunder. 5.0 Local Service Provider Notwithstanding anything to the contrary in these MSS Terms or the Agreement, PPSS may subcontract On-Site maintenance services to a local service provider. 9/25/09. Page 8 PPSS Agreement for Services, Software and Egaiipment EXHIBIT C Confidentiality Terms 1. During the course of this Agreement, either Party may receive or have access to Confidential Information of the other. "Confidential Information" means any confidentia- information or data disclosed by a Party ("Disclosing Party") to the other Party ("Recipient") under or in contemplation of this Agreement, which (a) if in tangible form or other media that can be converted to readable form is clearly marked as Confidential, proprietary, or private when disclosed; or (b) if oral or visual, is identified as Confidential, proprietary, or private on disclosure. The terms "Disclosing Party" and "Recipient" include each Party's Affiliates that disclose or receive Confidential Information. Each Party will cause its Affiliates, employees, and employees of its Affiliates to comply with the obligations of this Exhibit C, and each Party agrees that it is responsible for the due compliance with this Exhibit C by each of such Affiliates and employees. Actions or omissions by a Party's Affiliate, employee, or an employee of its Affiliate, that if taken by said Party would constitute a breach of this Exhibit C, will be considered to be also actions or omissions of said Party and therefore a breach of this Agreement by said Party. The Recipient will and will cause its employees, Affiliates and employees of Affiliates to (i) use the Confidential Information only in connection with the Recipient's performance of its obligations or in exercising its rights under this Agreement; (ii) restrict disclosure of the Confidential Information to employees of the Recipient and its Affiliates with a "need to know" and not disclose it to any other person or entity without the prior written consent of the Disclosing Party; (iii) advise those employees and Affiliates who have access to the Confidential Information of their obligations with respect thereto; (iv) treat the Confidential Information with at least the same degree of care to avoid disclosure to any third party as is used by Recipient with respect to its own information of like importance which is to be kept secret; and (v) copy the Confidential Information only as necessary for those employees who are entitled to receive it and ensure that all confidentiality notices are reproduced in full on such copies. 2. For the purposes of this Exhibit C only, "employee" includes third parties retained by the Parties for temporary consultative, administrative, clerical, programming or related Services support. A "need to know" means that the employee reasonably requires the Confidential Information to perform his or her responsibilities in connection with this Agreement. 3. "Confidential Information" will not include, and the provisions of this Exhibit C will not apply to, any information that (a) is or becomes available to the public through no breach of this Agreement; (b) was known by the Recipient without any obligation to hold it in confidence; (c) is received from a third party free to disclose such information without restriction; (d) is independently developed by the Recipient without the use of Confidential Information of the Disclosing Party; or (e) is approved for release by written authorization of the Disclosing Party but only to the extent of such authorization. If Recipient is required by judicial or administrative action (e.g. subpoena, order), law or regulation to disclose Confidential Information of the Disclosing Party, Recipient may do so, but only to the extent so required. In such event, Recipient will give sufficient notice to the Disclosing Party to allow the Disclosing Party an opportunity to obtain an appropriate protective order. 4. Confidential Information, including copies, will be deemed the property of the Disclosing Party. The Recipient will, within twenty (20) days of a written request by the Disclosing Party return all Confidential Information (or any designated portion thereof), including all copies thereof, to the Disclosing Party or if so directed by the Disclosing Party, destroy such Confidential Information and any other materials (tangible and intangible) that contain, reflect, or are based on all or any part of the Disclosing Party's Confidential Information. 5. The terms of this Exhibit C will survive any termination or expiration of this Agreement for a period of five (5) years, except for any item of Confidential Information that is a trade secret, for which such obligations will survive for so long as such item remains a trade secret. 9/25/09. Page 9 PPSS Agreement for Services, Software and Egzripment EXHIBIT D QUOTE Q72545 The quote follows this cover page 9/25/09. Page 10 ~ o ~~ ~ s k ~ tj(~~~ .r ~~ ,r~:Y"ks5 3" .-. Pe~sitre~n Public; Safety SysleTns ~~- Page 2 of 4 July 22, 2009 Summary Maintenance Services Help Desk & On-Site Support - 1 Year (Year 1) ~.. ~; Help Desk & On-Site Support -Year 2 Help Desk & On-Site Support -Year 3 Help Desk & On-Site Support -Year 4 Help Desk & On-Site Support -Year 5 The information contained in this document is proprietary to Positron and is offered solely for the purpose of evaluation. Copyright 2009 Positron Public Safety Systems CONFIDENTIAL $ 50,753.50 $ 52,276.11 $ 53,844.39 $ 55,459.72 $ 57,123.51 072545 - MetroComm, TX -Summary A©~itrc~n Puk~lie 5afelry ~~st~arns ~~rw.. Page 3 of 4 July 22, 2009 Maintenance Services Help Desk & On-Site Support, One Year 1 $ 50,753.50_ Subtotal $ 50,753.50 l .:_ Help Desk & On-Site Support -Year 2 1 $ 52,276.11 Help Desk & On-Site Support -Year 3 1 $ 53,844.39 Help Desk & On-Site Support -Year 4 1 $ 55,459.72 Help Desk & On-Site Support -Year 5 1 $ 57,123.51 Subtotal $ 218,703.74 The information contained in this document is proprietary to Positron and is offered solely for the purpose of evaluation. Copyright 2009 Positron Public Safety Systems CONFIDENTIAL 072545 - MetroComm, TX -Services ~~ i ~~ ~. !'ctstron 1''ublic Safety ~ystetns 1111x... Page 4 of 4 July 22, 2009 1 This Quote provides Maintenance services for Q69061I. It is assumed the customer has purchased all Base System items from Q69061I. 2 The On-Site Maintenance Services consist of the following: - Help Desk access and services. - On-Site remedy of any critical service affecting issues that cannot be resolved via Help Desk. A mutually agreed upon response time shall be negotiated between Positron and the Customer upon award of contract. -Hardware and Software replacement or repair (labor and associated travel and living expenses) Please note that this service does not cover the cost of either Positron or third party hardware or software components. These costs are covered by the standard Positron Hardware and Software Warranty (included with the initial solution purchase) and the optional Extended Hardware and Software Warranty, available for purchase from Positron. - Periodic Site visits by a Positron technician to inspect the proper operation of Positron's hardware and software. The frequency of the Site visits shall be negotiated between Positron and the customer upon award of contract. - On-Site installation of Software updates provided that the software is covered by the optional Software Evergreen service, available for purchase from Positron. PRICING All prices are in U.S. Funds. Taxes, if applicable, are extra. FOB Positron, Montreal. Shipping costs are prepaid and charged. PAYMENT NET 30 Days DELIVER~i TBD. VALIDITY 120 days. The information contained in this document is proprietary to Positron and is offered solely for the purpose of evaluation. Copyright 2009 Positron Public Safety Systems CONFIDENTIAL 072545 - MetroComm, TX -Notes