Loading...
HomeMy WebLinkAboutAdvanced Call Processing Inc; 2007-10-11;AGREEMENT FOR VOICE MAIL SERVICES ADVANCED CALL PROCESSING T,HIS AGREEMENT is made and entered into as of the // ' day of 20<?7. by and between the CITY OF CARLSBAD, a municipal corporation, ("City"), and Advanced Call Processing Inc., a California Corporation (ACP), hereinafter referred to as ("Contractor"). RECITALS A. City requires the professional services of a telecommunication systems contractor that is experienced in design, installation, and support of voicemail systems. B. Contractor has the necessary experience in providing professional services and advice related to integration, programming, training and maintenance of voicemail systems. C. Selection of Contractor is expected to achieve the desired results in an expedited fashion. D. Contractor has submitted a proposal to City and has affirmed its willingness and ability to perform such work. NOW, THEREFORE, in consideration of these recitals and the mutual covenants contained herein, City and Contractor agree as follows: 1. SCOPE OF WORK City retains Contractor to perform, and Contractor agrees to render, those services (the "Services") that are defined in attached Exhibit "A", which is incorporated by this reference in accordance with this Agreement's terms and conditions. Contractor will provide the CX Advanced Messaging System, Unified Messaging Clients, implementation services, end user training, administration technical training,consulting, project management.and all other requirements necessary for CallXpress voicemail system installation at the City of Carlsbad. The work under this Agreement will begin ten (10) calendar days after Agreement signing and Final System Acceptance made by the City within 90 days from the date of the Agreement signing. Final System Acceptance means that date in which A) all hardware, software and system components purchased under the terms of this Agreement have been successfully installed, tested and accepted by the City; B) all integration services have been successfully completed, tested and accepted by the City; C) all user documentation provided to the City is verified to be complete, accurate and current with the system installed; D) all user and system's administrator / management training has been successfully completed to the satisfaction of the City in general accordance with the Scope of Work mutually developed by the Contractor and the City; E) all tasks, sub- tasks, or components thereof that related wither directly or indirectly to the Agreement City Attorney Approved Version #11.28.06 have been successfully completed; F) that date upon which the City executes a Final Acceptance Document which states that all terms and conditions of this Agreement have been successfully completed by the Contractor to the satisfaction of the City. The Information Technology Director may grant extensions of time if requested by Contractor and agreed to in writing by both parties. The City will give allowance for documented and substantiated unforeseeable and unavoidable delays not caused by a lack of foresight on the part of the Contractor, or delays caused by City inaction or other agencies' lack of timely action. When work is completed as identified in Exhibit A, Contractor shall submit to City a written notification listing tasks completed. After receiving said notification, City shall have five (5) working days to review the deliverable to ensure that it is working properly, without failures. 2. STANDARD OF PERFORMANCE While performing the Services, Contractor will exercise the reasonable professional care and skill customarily exercised by reputable members of Contractor's profession practicing in the Metropolitan Southern California Area, and will use reasonable diligence and best judgment while exercising its professional skill and expertise. 3. TERM The term of this Agreement will be effective for a period of one year from the date first above written. 4. TIME IS OF THE ESSENCE Time is of the essence for each and every provision of this Agreement. 5. COMPENSATION The total fee payable for the hardware, software and services to be performed will be sixty thousand eight hundred thirty eight dollars and twenty cents ($60,838.20) including tax. After completion of each milestone or deliverable, as detailed in Exhibit B Contractor will invoice the City for the fees then owing. No other compensation for the Services will be allowed except for items covered by subsequent amendments to this Agreement. The City reserves the right to withhold a ten percent (10%) retention until City has accepted the work and/or Services specified in Exhibit "A". 6. STATUS OF CONTRACTOR Contractor will perform the Services in Contractor's own way as an independent contractor and in pursuit of Contractor's independent calling, and not as an employee of City. Contractor will be under control of City only as to the result to be accomplished, but will consult with City as necessary. The persons used by Contractor to provide City Attorney Approved Version #11.28.06 services under this Agreement will not be considered employees of City for any purposes. The payment made to Contractor pursuant to the Agreement will be the full and complete compensation to which Contractor is entitled. City will not make any federal or state tax withholdings on behalf of Contractor or its agents, employees or subcontractors. City will not be required to pay any workers' compensation insurance or unemployment contributions on behalf of Contractor or its employees or subcontractors. Contractor agrees to indemnify City within thirty (30) days for any tax, retirement contribution, social security, overtime payment, unemployment payment or workers' compensation payment which City may be required to make on behalf of Contractor or any agent, employee, or subcontractor of Contractor for work done under this Agreement. At the City's election, City may deduct the indemnification amount from any balance owing to Contractor. 7. SUBCONTRACTING Contractor will not subcontract any portion of the Services without prior written approval of City. If Contractor subcontracts any of the Services, Contractor will be fully responsible to City for the acts and omissions of Contractor's subcontractor and of the persons either directly or indirectly employed by the subcontractor, as Contractor is for the acts and omissions of persons directly employed by Contractor. Nothing contained in this Agreement will create any contractual relationship between any subcontractor of Contractor and City. Contractor will be responsible for payment of subcontractors. Contractor will bind every subcontractor and every subcontractor of a subcontractor by the terms of this Agreement applicable to Contractor's work unless specifically noted to the contrary in the subcontract and approved in writing by City. 8. OTHER CONTRACTORS The City reserves the right to employ other Contractors in connection with the Services. 9. INDEMNIFICATION Contractor agrees to indemnify and hold harmless the City and its officers, officials, employees and volunteers from and against all claims, damages, losses and expenses including attorneys fees arising out of the performance of the work described herein caused by any negligence, recklessness, or willful misconduct of the Contractor, any subcontractor, anyone directly or indirectly employed by any of them or anyone for whose acts any of them may be liable. The parties expressly agree that any payment, attorney's fee, costs or expense City incurs or makes to or on behalf of an injured employee under the City's self- administered workers' compensation is included as a loss, expense or cost for the purposes of this section, and that this section will survive the expiration or early termination of this Agreement. 10. INSURANCE City Attorney Approved Version #11.28.06 Contractor will obtain and maintain for the duration of the Agreement and any and all amendments, insurance against claims for injuries to persons or damage to property which may arise out of or in connection with performance of the services by Contractor or Contractor's agents, representatives, employees or subcontractors. The insurance will be obtained from an insurance carrier admitted and authorized to do business in the State of California. The insurance carrier is required to have a current Best's Key Rating of not less than "A-:V". 10.1 Coverages and Limits. Contractor will maintain the types of coverages and minimum limits indicated below, unless City Attorney or City Manager approves a lower amount. These minimum amounts of coverage will not constitute any limitations or cap on Contractor's indemnification obligations under this Agreement. City, its officers, agents and employees make no representation that the limits of the insurance specified to be carried by Contractor pursuant to this Agreement are adequate to protect Contractor. If Contractor believes that any required insurance coverage is inadequate, Contractor will obtain such additional insurance coverage, as Contractor deems adequate, at Contractor's sole expense. 10.1.1 Commercial General Liability Insurance. $1.000.000 combined single-limit per occurrence for bodily injury, personal injury and property damage. If the submitted policies contain aggregate limits, general aggregate limits will apply separately to the work under this Agreement or the general aggregate will be twice the required per occurrence limit. 10.1.2 Automobile Liability (if the use of an automobile is involved for Contractor's work for City). $1,000,000 combined single-limit per accident for bodily injury and property damage. 10.1.3 Workers' Compensation and Employer's Liability. Workers' Compensation limits as required by the California Labor Code and Employer's Liability limits of $1,000,000 per accident for bodily injury. Workers' Compensation and Employer's Liability insurance will not be required if Contractor has no employees and provides, to City's satisfaction, a declaration stating this. 10.1.4 Professional Liability. Errors and omissions liability appropriate to Contractor's profession with limits of not less than $1,000,000 per claim. Coverage must be maintained for a period of five years following the date of completion of the work. 10.2. Additional Provisions. Contractor will ensure that the policies of insurance required under this Agreement contain, or are endorsed to contain, the following provisions: 10.2.1 The City will be named as an additional insured on General Liability. City Attorney Approved Version #11.28.06 10.2.2 Contractor will obtain occurrence coverage, excluding Professional Liability, which will be written as claims-made coverage. 10.2.3 This insurance will be in force during the life of the Agreement and any extensions of it and will not be canceled without thirty (30) days prior written notice to City sent by certified mail pursuant to the Notice provisions of this Agreement. 10.3 Providing Certificates of Insurance and Endorsements. Prior to City's execution of this Agreement, Contractor will furnish certificates of insurance and endorsements to City. 10.4 Failure to Maintain Coverage. If Contractor fails to maintain any of these insurance coverages, then City will have the option to declare Contractor in breach, or may purchase replacement insurance or pay the premiums that are due on existing policies in order to maintain the required coverages. Contractor is responsible for any payments made by City to obtain or maintain insurance and City may collect these payments from Contractor or deduct the amount paid from any sums due Contractor under this Agreement. 10.5 Submission of Insurance Policies. City reserves the right to require, at anytime, complete and certified copies of any or all required insurance policies and endorsements. 11. BUSINESS LICENSE Contractor will obtain and maintain a City of Carlsbad Business License for the term of the Agreement, as may be amended from time-to-time. 12. ACCOUNTING RECORDS Contractor will maintain complete and accurate records with respect to costs incurred under this Agreement. All records will be clearly identifiable. Contractor will allow a representative of City during normal business hours to examine, audit, and make transcripts or copies of records and any other documents created pursuant to this Agreement. Contractor will allow inspection of all work, data, documents, proceedings, and activities related to the Agreement for a period of three (3) years from the date of final payment under this Agreement. 13. OWNERSHIP OF DOCUMENTS All work product produced by Contractor or its agents, employees, and subcontractors pursuant to this Agreement is the property of City. In the event this Agreement is terminated, all work product produced by Contractor or its agents, employees and subcontractors pursuant to this Agreement will be delivered at once to City. Contractor will have the right to make one (1) copy of the work product for Contractor's records. 14. COPYRIGHTS City Attorney Approved Version #11.28.06 Contractor agrees that all copyrights that arise from the services will be vested in City and Contractor relinquishes all claims to the copyrights in favor of City. 15. NOTICES The name of the persons who are authorized to give written notices or to receive written notice on behalf of City and on behalf of Contractor under this Agreement. For City: For Contracter: Name Gordon Peterson Name Title IT Director Title Department IT _ Address ^. City of Carlsbad Address 1635 Faraday _ Phone No. ^hn-^/y- 3^3 /o I Phone No. 760-602-2450 Each party will notify the other immediately of any changes of address that would require any notice or delivery to be directed to another address. 16. CONFLICT OF INTEREST City will evaluate Contractor's duties pursuant to this Agreement to determine whether disclosure under the Political Reform Act and City's Conflict of Interest Code is required of Contractor or any of Contractor's employees, agents, or subcontractors. Should it be determined that disclosure is required, Contractor or Contractor's affected employees, agents, or subcontractors will complete and file with the City Clerk those schedules specified by City and contained in the Statement of Economic Interests Form 700. Contractor, for Contractor and on behalf of Contractor's agents, employees, subcontractors and consultants warrants that by execution of this Agreement, that they have no interest, present or contemplated, in the projects affected by this Agreement. Contractor further warrants that neither Contractor, nor Contractor's agents, employees, subcontractors and consultants have any ancillary real property, business interests or income that will be affected by this Agreement or, alternatively, that Contractor will file with the City an affidavit disclosing this interest. 17. GENERAL COMPLIANCE WITH LAWS Contractor will keep fully informed of federal, state and local laws and ordinances and regulations which in any manner affect those employed by Contractor, or in any way affect the performance of the Services by Contractor. Contractor will at all times observe and comply with these laws, ordinances, and regulations and will be responsible for the compliance of Contractor's services with all applicable laws, ordinances and regulations. City Attorney Approved Version #11.28.06 Contractor will be aware of the requirements of the Immigration Reform and Control Act of 1986 and will comply with those requirements, including, but not limited to, verifying the eligibility for employment of all agents, employees, subcontractors and consultants that the services required by this Agreement. 18. DISCRIMINATION AND HARASSMENT PROHIBITED Contractor will comply with all applicable local, state and federal laws and regulations prohibiting discrimination and harassment. 19. DISPUTE RESOLUTION If a dispute should arise regarding the performance of the Services the following procedure will be used to resolve any questions of fact or interpretation not otherwise settled by agreement between the parties. Representatives of Contractor or City will reduce such questions, and their respective views, to writing. A copy of such documented dispute will be forwarded to both parties involved along with recommended methods of resolution, which would be of benefit to both parties. The representative receiving the letter will reply to the letter along with a recommended method of resolution within ten (10) business days. If the resolution thus obtained is unsatisfactory to the aggrieved party, a letter outlining the disputes will be forwarded to the City Manager. The City Manager will consider the facts and solutions recommended by each party and may then opt to direct a solution to the problem. In such cases, the action of the City Manager will be binding upon the parties involved, although nothing in this procedure will prohibit the parties from seeking remedies available to them at law. 20. TERMINATION In the event of the Contractor's failure to prosecute, deliver, or perform the Services, City may terminate this Agreement for nonperformance by notifying Contractor by certified mail of the termination. If City decides to abandon or indefinitely postpone the work or services contemplated by this Agreement, City may terminate this Agreement upon written notice to Contractor. Upon notification of termination, Contractor has five (5) business days to deliver any documents owned by City and all work in progress to City address contained in this Agreement. City will make a determination of fact based upon the work product delivered to City and of the percentage of work that Contractor has performed which is usable and of worth to City in having the Agreement completed. Based upon that finding City will determine the final payment of the Agreement. Either party upon tendering thirty (30) days written notice to the other party may terminate this Agreement. In this event and upon request of City, Contractor will assemble the work product and put it in order for proper filing and closing and deliver it to City. Contractor will be paid for work performed to the termination date; however, the total will not exceed the lump sum fee payable under this Agreement. City will make the final determination as to the portions of tasks completed and the compensation to be made. 21. COVENANTS AGAINST CONTINGENT FEES City Attorney Approved Version #11.28.06 Contractor warrants that Contractor has not employed or retained any company or person, other than a bona fide employee working for Contractor, to solicit or secure this Agreement, and that Contractor has not paid or agreed to pay any company or person, other than a bona fide employee, any fee, commission, percentage, brokerage fee, gift, or any other consideration contingent upon, or resulting from, the award or making of this Agreement. For breach or violation of this warranty, City will have the right to annul this Agreement without liability, or, in its discretion, to deduct from the Agreement price or consideration, or otherwise recover, the full amount of the fee, commission, percentage, brokerage fees, gift, or contingent fee. 22. CLAIMS AND LAWSUITS By signing this Agreement, Contractor agrees that any Agreement claim submitted to City must be asserted as part of the Agreement process as set forth in this Agreement and not in anticipation of litigation or in conjunction with litigation. Contractor acknowledges that if a false claim is submitted to City, it may be considered fraud and Contractor may be subject to criminal prosecution. Contractor acknowledges that California Government Code sections 12650 et seq.. the False Claims Act applies to this Agreement and, provides for civil penalties where a person knowingly submits a false claim to a public entity. These provisions include false claims made with deliberate ignorance of the false information or in reckless disregard of the truth or falsity of information. If City seeks to recover penalties pursuant to the False Claims Act, it is entitled to recover its litigation costs, including attorney's fees. Contractor acknowledges that the filing of a false claim may subject Contractor to an administrative debarment proceeding as the result of which Contractor may be prevented to act as a Contractor on any public work or improvement for a period of up to five (5) years. Contractor acknowledges debarment by another jurisdiction is grounds for City to terminate this Agreement. 23. JURISDICTIONS AND VENUE Any action at law or in equity brought by either of the parties for the purpose of enforcing a right or rights provided for by this Agreement will be tried in a court of competent jurisdiction in the County of San Diego, State of California, and the parties waive all provisions of law providing for a change of venue in these proceedings to any other county. 24. SUCCESSORS AND ASSIGNS It is mutually understood and agreed that this Agreement will be binding upon City and Contractor and their respective successors. Neither this Agreement or any part of it nor any monies due or to become due under it may be assigned by Contractor without the prior consent of City, which shall not be unreasonably withheld. 25. ENTIRE AGREEMENT This Agreement, together with any other written document referred to or contemplated by it, along with the purchase order for this Agreement and its provisions, embody the entire Agreement and understanding between the parties relating to the subject matter of it. In case of conflict, the terms of the Agreement supersede the purchase order. City Attorney Approved Version #11.28.06 8 Neither this Agreement nor any of its provisions may be amended, modified, waived or discharged except in a writing signed by both parties. 26. AUTHORITY The individuals executing this Agreement and the instruments referenced in it on behalf of Contractor each represent and warrant that they have the legal power, right and actual authority to bind Contractor to the terms and conditions of this Agreement. CONTRACTOR CITY corpor, nicipal fornia Robert Simpson President (print name/title) rsimpsn@acpus.com _ (e/maii address) ATTES (sign here) Paulette Castillo LORRAINE M. WOOD ' y (print name/title) pcastillo@acpus.com (e-mail address) If required by City, proper notarial acknowledgment of execution by must be attached. If a Corporation. Agreement must be signed by one corporate officer from each of the following two groups. *Group A. Chairman, President, or Vice-President **Group B. Secretary, Assistant Secretary, CFO or Assistant Treasurer Otherwise, the corporation must attach a resolution certified by the secretary or assistant secretary under corporate seal empowering the officers) signing to bind the corporation. APPROVED AS RM: LL, City Attorney eputy City Attorney City Attorney Approved Version #11.28.06 ACKNOWLEDGMENT State of California County of San Diego On October 2, 2007 before me, Ruth E. Garcia, Notary Public (here insert name and title of the officer) personally appeared Robert Simpson, President and Paulette Castillo, Secretary/Treasurer personally known to me (or proved to me on the basis of satisfactory evidence) to be the person(s) whose name(s) is/are subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their authorized capacity(ies), and that by his/her/their signature(s) on the instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument. RUIHE. Cammttton»l«fttl06WITNESS my hand and officjaUeal.c Sicfrrature (Seal) Scope of Work AGR The City of Carlsbad/Carlsbad. Ca. Scope of work for Carlsbad voice mail Implementation ACP to provide Tele Com Manager for City of Carlsbad PBX requirements necessary for CallXpress installation. ACP and City of Carlsbad (COC) to gather network information for CallXpress installation and Unified Messaging configuration (Sample data sheet provided) ACP and COC to gather information on all City numbers being answered by Automated Attendant. Information to include: Number Days of week and hours of operation Holiday schedule for year Gather Scripts for AA applications Date: Week of October 8th (work within City schedule) ACP to get approval on existing AA scripts and determine possible changes. Date: Week of October 8th (work within City schedule) ACP to work with COC to collect user/subscriber database and determine what user interface is to be available to each subscriber (CallXpress or Aria). To be collected in .doc format. (Confirm City Directory) Date: Week of October 15th (work with City schedule) ACP to Install system linecards and application software in ACP office and let run Date: Week of October 22nd. ACP to build City applications and subscriber database Date: Week of October 22nd. ACP to deliver CallXpress Date: Week of October 29th. ACP to work with COC to integrate CallXpress to PBX. ACP to test system integration: To include: Direct Call to CX (please enter your security code) Forwarded internal call to CX on RNA/Busy (personal greeting) Forwarded external call to CX on RNA/Busy (personal greeting) Test UCD group Test MWI activation and cancellation COC to provide 16 port analog linecard and MCI link for integration and testing. Date: Week of October 29th. (work within City schedule) Rob Simpson 1 9/27/2007 City of Carlsbad Planning.doc Scope of Work The City of Carlsbad/Carlsbad. Ca. ACP to work with COC IT department to integrate to network and build CX email profile. Date: Week of October 29. (work within City schedule) ACP and COC to establish end user voice mail training class schedule. Classes to begin on the hour starting at 8:00 am, with a break for lunch at noon, and concluding at 4:30 PM. Each class will require approximately 30 minutes, and will be held on 3 consecutive days with a day each at City Hall, Safety Center and Faraday. The training area will need to have access to a speaker phone. A projector screen or clean wall will be needed for overhead presentations. Date: Week of November 29th. (work within City Schedule) ACP to provide CallXpress system administration training. Class to last approximately 3 hours and will require a workstation with the administrative client installed. This is available for as many people as the city would like trained. Date: Week of November 5th. (work within City schedule) System Cutover. ACP and COC will place the system into operation on the Friday of the week after the completion of subscriber training. Date: November 2nd, at 5:00 PM. ACP personnel to be on site from 8 to 4 on the Monday and Tuesday after system cutover. Date: November 5th & 6th. Rob Simpson 2 9/27/2007 City of Carlsbad Planning.doc PURCHASE AGREEMENT Date: October 1st. 2007 Purchase Order No. Salesperson No. RCS Contract No. By and Between Advanced Call Processing and The City of Carlsbad. Inc. Customer Name 1635 Faraday Ave. Street Address Carlsbad Ca.92008 City (760) 602-2479 State Telephone Number Gary Hornby Zip Code Contract Advanced Call Processing agrees to sell and customer agrees to purchase from Advanced Call Processing the equipment listed below, in accordance with the following conditions, and the conditions on the reverse side of this Purchase Agreement. QUANTITY 1 1 1 1 1 1 3 1 1 1 1 DESCRIPTION CX Advanced Messaging - 32 Ports/50 Seats UM Bundle: 50 Clients, 1 TTS Channel Octel Serenade TUI Emulation Automated Agent Software (IVR - No Charge 150 Client UM Pack (200 total) NEAX 200/2400 MCI Integration D/120JCT-U, 12Port(uPCI) HP-ML350 G5 LFF - Rack AVST Trade-in Program Credit ACP Implementation Services Pro-rated 7 x 24 Support Tax Total PRICE $ 23,283.00 $ 2,940.00 $ 1,690.00 $ 0.00 $ 7,500.00 $ 720.00 $ 8,976.00 $ 7,000.00 $ -7,500.00 $ 8,400.00 $ 4,372.00 $ 3,457.20 $ 60,838.20 ** 15% restocking fee for cancellation of order The equipment shall be installed at the following location: (Installation Site) 1635 Faraday Ave. Carlsbad Ca.92008 City State Sales tax where applicable Zip Code will be added to the total Street address The total purchase price is $ 60.838.20 purchase price. TERMS OF PAYMENT: A security deposit of 50% ($ 30.419.10 ) must be submitted to Advanced Call Processing along with this Agreement. 40% of the purchase price is due and payable when the equipment is delivered to the customer's premises and the balance plus applicable taxes is due and payable two (2) weeks after the date of cutover. Advanced Call Processing, Inc. By: Robert Si Name: Title: President Date: 10/1/2007 2030 Corte Del Nogal, Suite 100 1-800-350-8642 Customer By: Name: Title: Date: Carlsbad, CA 92011 FAX 760-020-9909 TERMS AND CONDITIONS TITLE: Title to the equipment shall pass to customer upon the date that the equipment is delivered to the installation site, subject to the rights of Advanced Call Processing ("ACP") in the following paragraph. SECURITY INTEREST: Customer hereby grants to ACP a first priority security interest in the equipment in order to secure customer's payment obligation hereunder, and hereby appoints ACP as its attorney-in-fact to execute and file a UCC-1 financing statement and any other documents necessary to perfect such security interest. ACP shall have all the rights and remedies of a secured party as provided for in Article 9 of the Uniform Commercial Code, and ACP shall be entitled to reasonable attorney's fees and costs incurred with respect to enforcing its security interest and any other rights under this Agreement. DELIVERY & INSTALLATION: All risk of loss passes to customer upon delivery of equipment to the installation site. The equipment delivery date shall be at a time to be mutually agreed upon by the parties. ACP will install the equipment. Customer will be responsible for a suitable place for installing the equipment, all electrical outlets, power hook-ups, related carpenter work as specified by ACP, and an equipment area acclimatized to computer requirements in terms of temperature. INDEMNIFICATION: Customer shall defend, indemnify and hold ACP harmless from any and all claims, actions, suits, proceedings, costs, expenses, damages, liabilities, including attorneys' fees, claimed by any person, organization, association, or otherwise arising out of, or relating to the equipment, use, possession, operation, and/or condition, thereof, except as caused exclusively by ACP. WARRANTIES: ACP warrants good and clear title to the equipment, free and clear of liens and encumbrances except for ACP's security interest. ACP warrants the equipment against defects in materials and workmanship for a period of one year from the cutover date; provided that no repairs, substitutions, modifications, or additions have been made except by ACP, and provided that after delivery to the customer the equipment has not been subjected to accident, neglect or misuse, or used in violation of any instructions supplied by ACP. ACP's sole liability hereunder shall be to repair or replace the equipment at its own expense during normal working hours. The foregoing warranty shall constitute the exclusive remedy of customer and the exclusive liability of ACP for any breach of any warranty related to this Agreement. THE WARRANTIES SET FORTH HEREIN AND IN THE RELATED EQUIPMENT WARRANTY AGREEMENT ARE EXCLUSIVE, AND ACP EXPRESSLY DISCLAIMS ALL OTHER WARRANTIES, WHETHER WRITTEN, ORAL, IMPLIED OR STATUTORY, INCLUDING BUT NOT LIMITED TO ANY WARRANTIES OF MERCHANTABILITY, WORKMANSHIP, OR FITNESS FOR A PARTICULAR PURPOSE. LIMITATION OF LIABILITY: ACP shall not be liable for any special, indirect, incidental or consequential damages or for loss, damage, or expense directly or indirectly arising from customer's use of or inability to use the equipment either separately or in combination with other equipment, or for personal injury or loss or destruction of other property. DEFAULT: If any amount owed to ACP is not paid when due, or if customer breaches any provision hereof, customer shall be in default hereunder and all unpaid amounts shall become immediately due and payable. Any payment not made when due shall accrue interest at the lesser of 12% per annum, or the maximum legal rate of interest. Upon customer's default, ACP shall have the rights and remedies of a secured party under the Uniform Commercial Code and any rights and remedies available at law or in equity. Additionally, upon 48 hours' notice, at its option, ACP may render the equipment unusable until ACP receives payment in full, and/or enter upon the premises where the equipment is installed and retake possession thereof free from any claims of customer. Customer shall pay all costs of collection and/or repossession, including reasonable attorneys' fees and costs. DISPUTES: In the event of any dispute under this Agreement except for an event of default (as set forth in the preceding paragraph) in which event ACP will be entitled to all applicable remedies, the parties shall make an authorized representative available, exchange information as appropriate, and negotiate diligently and in good faith for a reasonable time to resolve the dispute. If not resolved informally, either party may submit the dispute to mediation to be conducted in San Diego, California, without right of discovery. If the dispute is not resolved by mediation, either party may commence litigation, and both parties submit to the exclusive jurisdiction of state and federal courts in San Diego County, California. Both parties waive any right to trial before a jury. The prevailing party shall be entitled to recover its attorneys' fees and expenses incurred on account of resolving any dispute. MISCELLANEOUS: This Agreement shall be governed by the laws of California. This Agreement cannot be assigned by customer without the written consent of ACP. If more than one (1) customer is named in this Agreement, the liability of each customer shall be joint and several. ACP is not liable for any failure or delay in performance to any cause beyond its control including, without limitation, any delays in delivery or installation. If any provisions of this Agreement are in conflict with any statute or rule of law of any state or territory wherein it may be sought to be enforced, then such provisions shall be deemed null and void to the extent that they may conflict therewith, but without invalidating the remaining provisions here. Customer will permit or arrange for access for ACP personnel to the premises for ACP installation and warranty service. No order accepted by ACP may be cancelled or altered by customer except upon terms and conditions acceptable to ACP. No modification, waiver, amendment, discharge or change of this Agreement shall be valid unless the same is in writing and signed by both parties.