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HomeMy WebLinkAboutCyberShift Inc; 2010-04-06; (2)EQUIPMENT SALES, SERVICES AND MAINTENANCE AGREEMENT BETWEEN CYBERSHIFT, INC. AND CLIENT This Agreement and Exhibits annexed hereto (collectively, the "Agreement") dated M \[f (2010, (the "Effective Date") is between CyberShift, Inc., a New York Corporation with its principal place of business located at 600 Parsippany Road, Parsippany, NJ 07054 U.S.A. ("CyberShift") and Client, whose name, principal place of business, and jurisdiction of incorporation are set forth below (each, a "Party" and, collectively, the "Parties"). In consideration of the mutual obligations assumed under this Agreement, CyberShift and Client agree to the terms and conditions attached to this Agreement and represent that this Agreement is executed by duly authorized representatives. IN WITNESS WHEREOF, the Parties hereunto, intending to be legally bound, have executed this Agreement as of the date first set forth above. CITY OF CARLSBAD By: Name: Title: Date: Claude A. Lewi <? Mavor Principal Place of Business: Jurisdiction of Incorporation or Organization Carlsbad, California City of Carlsbad, a municipal corporation of tbe State of California 1. DELIVERY 1.1 CyberShift, Inc. ("CyberShift") shall deliver to Client. ("Client") all equipment listed in Exhibit A in accordance with a delivery schedule that is mutually agreed to by CyberShift and the Client. 1.2 CyberShift shall not be liable for any delay in the production, delivery or supervision of installation of any of the equipment covered hereby if such delay shall be due to any cause whatsoever beyond the reasonable control of CyberShift including, without limitation, fire, strike, lockout, dispute with workmen, earthquake, flood, hurricane, accident, delay in transportation, shortage of fuel, inability to obtain material, embargo, or demand of any governmental or war activity. In the event of any delay for cause beyond the reasonable control of CyberShift, the performance of this contract by CyberShift shall be extended for a period equal to the time lost by reason of the delay. 2. TAXES 2.1 . Prices quoted in Exhibit A exclude sales taxes which will be added to invoice. 3. INSTALLATION AND OPERATING EXPENSES 3.1 Prior to the shipment of the equipment to Client's premises, Client shall at its expense prepare its premises for installation of the equipment and shall provide all necessary space, cable troughs, special cables, conduits, fittings and the like, along with all CyberShift, Inc.Page 1 of 6 3/12/10 electrical, mechanical and water services required for installation of the equipment. 3.2 If required by Client, CyberShift shall supervise, during its normal working hours, the placement and unpacking of equipment it furnished and shall install that equipment. If local law, union agreement, precludes installation by CyberShift personnel or otherwise, CyberShift shall supervise the installation and the Client shall bear costs of such supervision. 3.3 All supplies for use with the equipment are to be provided at Client's expense and are to meet specifications set forth by CyberShift. CyberShift agrees to sell to Client at CyberShift's prices then prevailing such supplies and spare parts, as it shall have available for sale and which may be suitable for use on or in connection with the equipment. 3.4 Pre-approved, reasonable costs for travel and accommodations for CyberShift's personnel, or its agents, to and from Client's site, during periods of installation and/or training shall be reimbursed to CyberShift, by Client. 4. TERMS OF PAYMENT AND TITLE 4.1 The equipment and associated installation, training and maintenance fees are described in Exhibit A. The installation and training services will be billed on a time and materials basis as incurred 4.2 The equipment purchased and associated maintenance shall be invoiced to a single corporate office upon delivery and shall be due and payable 30 days after delivery. CyberShift shall not be required to collect invoices from multiple ship-to locations. 4.3 The installation services and out of pocket travel costs shall be due and payable 30 days after invoice date. The maintenance services shall be invoiced after the expiration of the 90-day Warranty Period and shall be due and payable 30 days after date of invoice. 4.4. Title to each item of equipment purchased hereunder shall remain vested in CyberShift until the full purchase price hereof shall have been paid. In the event that the purchase price is not paid when due, CyberShift retains and reserves a security interest in each unit of the equipment sold hereunder until the full amount due (including the purchase price and any other charges payable to CyberShift) is paid to CyberShift 5. WARRANTY 5.1 CyberShift warrants that Client shall acquire good and clear title to the equipment being purchased by Client hereunder, free and clear of all liens and encumbrances. CyberShift warrants that the equipment for a period of ninety (90) days following installation. After the 90-day warranty period Client shall purchase Maintenance Services as specified in Exhibit 10. 5.2 Other than as expressly provided herein the equipment and the services provided hereunder are provided "new". 6. RISK OF LOSS 6.1 Should any loss, damage or injury result to said equipment, from any cause whatsoever not attributable to CyberShift, while in possession of Client or Client's agents, such loss, damage or injury shall not relieve Client from the obligation to pay for the same according to the terms of this Agreement. 7. INFRINGEMENT-CyberShift agrees to indemnify and hold Client harmless from and against any and all claims, losses, liabilities, damages, expenses and costs, (collectively "Claims") that the equipment infringe any patent, process, method, trade secret or device, and the infringement by CyberShift or its suppliers in the creation of the equipment of any copyright, trademark or trade name provided, however, that Client shall give prompt written notice to CyberShift of the assertion of any such Claim and provided further that CyberShift shall have the right to select counsel and control the defense and settlement thereof, subject to the right of the Client to participate in such action or to proceed at its own expense with counsel of its own choosing. The foregoing states the entire obligations of CyberShift with respect to infringement of proprietary or intellectual property rights of third parties. 8. TRAINING AND SUPPORT SERVICES 8.1 CyberShift shall provide to Client training and support services as generally available for the type of equipment ordered under this Agreement as specified in Exhibit A. 9.MAINTENANCE TERM 9.1 The Maintenance Term of this Agreement shall commence at the end of the 90-day warranty period and extend for 12 months, (the period between these two dates is referred to as the "Initial Term"). Thereafter, the term of this Agreement shall automatically be renewed for successive twelve (12) month terms ("Renewal Periods"), unless written notice of its intention not to renew is first provided by either party at least sixty (60) days prior to the expiration date, in each succeeding year. 10. MAINTENANCE SERVICE AVAILABILITY 10.1 CyberShift will provide (a) standard maintenance service Monday through Friday during the hours of SAM to 6 PM EST exclusive of CyberShift, Inc.'s recognized holidays. This maintenance service includes: (a) Basic Service and (b) Equipment Repair and Replacement service. 10 (a) BASIC SERVICE Basic service is telephone support service and includes Client having access to CyberShift Help Desk for purposes of answering inquiries concerning the performance of the equipment and interface software and the and to clarify any documentation that is either insufficient or unclear. CyberShift, Inc.Page 2 of 6 3/12/10 10 (b) EQUIPMENT REPAIR OR REPLACEMENT SERVIC and EQUIPMENT INTERFACE SOFTWARE In addition to the Basic Service should the equipment and interface software not operate substantially in conformance with the specifications in all material respects, CyberShift will repair the equipment or interface at no additional charge to Client or will provide remedial maintenance or replacement of Equipment to fix the Equipment or interface. Client shall contact CyberShift and agree whether the equipment should be sent to CyberShift or repaired on site at Client's premises. If Client determines to send the equipment to CyberShift for repairs, Client shall request a Return Authorization prior to delivery of Equipment to CyberShift. If Client requires CyberShift to repair the equipment or interface on Client premises, Client shall reimburse CyberShift reasonable costs for travel and accommodations for CyberShift's personnel, or its agents, to and from Client's site. Following any necessary repairs or replacement, CyberShift shall return the Equipment to the Client's designated location. Client shall pay costs of delivery to CyberShift and CyberShift shall pay cost of return delivery to and from Client. 11. CHANGES IN MAINTENANCE CHARGES 11.1 Specified charges are those currently in effect and are subject to change upon sixty (60) days prior written notice to Client by CyberShift. If charges are changed, Client may, on the effective date of such change, terminate this Agreement or withdraw from service any item of equipment affected by delivering written notice to CyberShift, prior to the effective date of such change. Otherwise, the change shall become effective upon the date specified in the notice. If Client elects standard service and then requests service outside CyberShift's normal business hours, such service, if available, will be furnished with CyberShift's per-call hourly rates and terms then in effect. 12. DEFAULT 12.1 Excepting any amount in dispute between the parties, if Client does not pay any amounts due hereunder, or breaches any terms of the Agreement, CyberShift, Inc. may, in addition to any other legal remedies it may have, either refuse to service the equipment/software or furnish service only on a per- cal! basis. Client also agrees to pay CyberShift, Inc.'s costs and expenses of collection, including reasonable attorney's fees as permitted by law. 13. EXCLUSIONS 13.1 In addition to the exclusions discussed above, CyberShift, Inc.'s maintenance service provided hereunder does not include: (a) electrical work external to the equipment or maintenance of accessories, attachments or other devices not authorized by CyberShift. (b) service required due to failure caused by supply items that do not meet CyberShift's specifications; (c) repair of damage or increase in service time resulting from accident, transportation, neglect, misuse, lightning, failure or fluctuation of electrical power, air conditioning or humidity control, telephone equipment or communication line failure, or causes other than ordinary use; (d) any service with respect to Client altered software or firmware, or any repair of any damage to equipment caused by software or firmware, including improper programming unless provided for in this Agreement; (e) programming and software support unless provided for in the product License and Support Agreement or Professional Services Agreement, (f) furnishing of disc packs, magnetic tapes or cassette, formal tapes, batteries, drums or cartridges for laser printers, bands for band printers, supplies or accessories, painting or refinishing or furnishing material thereof, making specification changes or performing services connected with relation of equipment or adding or removing of accessories, attachments or other devices; (g) such service which is impractical for CyberShift service personnel to render because of alterations in the equipment or connection thereof by mechanical or electrical means to another machine or device; (h) equipment located in an unsuitable place of installation or an unsafe or hazardous environment, as reasonably determined by CyberShift; (i) Client requested systems engineering services, programming and operations procedures of any sort not covered by this Agreement; and (j) normal operator functions. 14. ACCESS TO EQUIPMENT 14.1 CyberShift, Inc. will have access to the equipment to provide service thereon at a time and manner approved by the Client. If persons other than CyberShift, Inc. representatives shall perform maintenance, or repair a full unit of equipment, and as a result further repair by CyberShift, Inc. is required, such repairs will be made at CyberShift's applicable time and materials rates and terms then in effect. 15. ADDITIONAL EQUIPMENT and RETURNS 15.1 Additional items of equipment shall be made subject to this Agreement upon execution, (by a duly authorized representative of the Client and acceptance thereof by a duly authorized representative of CyberShift, Inc.), maintenance addendum form ("Maintenance Addendum") that states the location of the additional items of equipment, model type, serial number, effective date of the commencement of maintenance service and total charges for such equipment. Equipment can be returned in exchange for a restocking charge of 15% of the total value of any returned item, provided said returned item is in its original packaging and has not been opened or used. 16. RESPONSIBILITY FOR DATA PROTECTION 16.1 Client acknowledges that it is it's sole responsibility, at all times, including specifically during all Client service functions performed by CyberShift to protect the computer system database, files and software from all possible losses, including, by way of illustration, power failures, hardware failures, software problems, external influences, and inadvertent mistakes such as operator error, or any other cause by maintaining copies, through the use of verified CyberShift, Inc.Page 3 of 6 3/12/10 daily file saves, or such other methods of protection as may be available for the computer system database, files and software. 17. LIMITATION OF LIABILITY 17.1 In the event any unit of equipment or software is damaged through the fault of CyberShift (or its agents), CyberShift will, at its option, repair or replace the damaged unit. If property of Client is damaged, through the fault of CyberShift (or its agents), CyberShift's liability for such damage will be limited to the actual cost of replacement or repair, at CyberShift's option, of the damaged property. CyberShift's entire liability in contract, tort or otherwise, arising out of this agreement, shall in no case exceed the total amount paid by Client under this EQUIPMENT SALES, SERVICES AND MAINTENANCE AGREEMENT. Further, and without in any way limiting the generality of the foregoing, CyberShift and its authorized representatives shall not in any case be liable for loss of profits, loss of business, lost savings or other economical loss or damage of any kind or nature whatsoever. Client agrees that CyberShift will not be liable for any lost profits, special, incidental or consequential damages or for any claims or demand against Client by another party, even if CyberShift has been advised of the possibility of such damages. This clause sets out the entire liability or action by Client irrespective of the nature of cause by action underlying the same, whether under contract law or in tort, and whether arising from a breach of warranty or condition, or a fundamental term of fundamental breach or breaches, or negligence, or otherwise. The provisions hereof shall survive the termination of this agreement. CyberShift makes no express or implied warranties, except as expressly stated in this agreement, including but not limited to the implied warranties of merchantability and fitness for a particular purpose. No action, regardless of form, arising out of this Agreement may be brought by the Client more than one (1) year after the facts giving rise to the cause of action have occurred, regardless of whether those facts by that time are known to, or reasonably ought to have been discovered by Client. 18. GENERAL 18.1 This Agreement is not assignable without the prior written consent of the other party, which shall not be unreasonably withheld. 18.2 Paragraphs 2 and 18 shall survive termination of this Agreement. 18.3 In the event of an Issue or other dispute (each, a "Dispute") between the Parties in connection with the performance of this Agreement, the responsible Service Managers representing each Party will negotiate in good faith to attempt to resolve such Dispute in accordance with this Section 14. If such Service Managers do not resolve the Dispute within thirty (30) days from the commencement of such discussions, then senior executives designated by each Party will meet and attempt in good faith to reach resolution. Such senior executives shall have at least sixty (60) days from the expiration of the previous thirty (30) day period to resolve the Dispute. The Parties must complete the foregoing dispute resolution process before serving written notice on the other Party alleging a material breach of this Agreement. This Agreement shall be construed and enforced in accordance with the laws of New Jersey, U.S.A. Except for equitable proceedings arising pursuant to this Agreement which may be commenced by CYBERSHIFT in any court of competent jurisdiction, any and all disputes arising hereunder shall be resolved exclusively in the courts of New Jersey, U.S.A. and the parties hereby consent to the exclusive personal and subject matter jurisdiction thereof. 18.3 CLIENT REPRESENTS THAT HE HAS READ THIS AGREEMENT, UNDERSTANDS IT, AND AGREES TO BE BOUND BY ITS TERMS AND CONDITIONS. CLIENT FURTHER AGREES THAT THIS AGREEMENT CONSTITUTES THE ENTIRE AGREEMENT BETWEEN THE PARTIES WITH RESPECT TO THE SUBJECT MATTER HEREOF AND THAT THIS AGREEMENT SUPERSEDES ALL PROPOSALS, ORAL OR WRITTEN, ALL PREVIOUS NEGOTIATIONS, AND ALL OTHER COMMUNICATIONS BETWEEN THE PARTIES WITH RESPECT TO THE SUBJECT MATTER HEREOF 19.NOTICES 19.1 Any notices required by this Agreement to be served on CyberShift or Client shall be deemed effective if delivered by U.S. Postal Service certified mail delivery or nationally recognized express courier service on the date delivered to the company and shall be addressed to the following: Robert Farina CEO CyberShift, Inc. 600 Parsippany Road Parsippany, NJ 07054 And to Client at: Debbie Porter City of Carlsbad Human Resources Department 1635 Faraday Ave Carlsbad CA 92008 CyberShift, Inc.Page 4 of 6 3/12/10 EXHIBIT A Equipment/Service Data Collection Devices and Interface Software Discount on Initial order Net price, initial order Transformers Total Installation and Training & Supervision Maintenance Repair and Replacement Service Model ATS Maximus- MXS2000/07 with HID Proximity ATS Maximus- MXS2000/07 with HID Proximity ATS Maximus- MXS2000/07 with HID Proximity See SOW Model ATS Maximus- MXS2000/07 with HID Proximity Units 23 23 23 23 Units 23 Unit Price $1,795 ($895) $900 $36 Rate per year 15% of list price Total Price $41,285 ($20,585) $20,700 $828 $21,528 Total Annual Price $6192.75 Notes: Prices stated above exclude freight and taxes. The equipment purchased and associated maintenance shall be invoiced to a single corporate office upon delivery and shall be due and payable 30 days after delivery. CyberShift shall not be required to collect invoices from multiple ship-to locations. Increase in maintenance are limited to 3%, 4% annually for the first two maintenance renewals and 5% annually thereafter. Discount applies only to initial order. CyberShift, Inc.Page 5 of 6 3/12/10 72, CytterShm) EXHIBITS CyberShift, Inc. Customer Billing Information for Accounts Receivable Department Customer Name: Debbie Porter Billing Address Line 1: City of Carlsbad Human Resources Department Billing Address Line 2: 1635 Faraday Ave City/State/Zip: Carlsbad CA 92008 Main Phone Number: 760-602-2441 Contact Person Name: see above Phone Number: ___________ Fax Number: Email Address: Accounts Payable Manager: _n/a_ Phone Number: Fax Number: Email Address: Controller: _n/a Phone Number: Fax Number: Email Address: CFO: _n/a Phone Number: Fax Number: Email Address: CyberShift, Inc. Page 6 of 6 3/12/10