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HomeMy WebLinkAbout2001-07-24; City Council; 16295; Network Integration & Maintenance ServicesE H 8 Q: . . g 2 =! Y z CITY OF CARLSBAD - AGENDA BILL AB# lb! 8?s MTG. 7 -Na/ DEPT. IT TITLE: APPROVING AN AGREEMENT WITH MTMNET, INC. FOR NETWORK INTEGRATION AND MAINTENANCE SERVICES + CITY MGR. RECOMMENDED ACTION: Staff recommends that Council adopt Resolution No. am-ad I, approving the agreement with MTMnet Inc. for network integration and maintenance services. ITEM EXPLANATION: On October 23, 2000, the City entered into an agreement with MTMnet to provide technology integration and consulting services. This one year Professional Services agreement is not to exceed $10,000 and has no provisions for contract extension. Under this agreement MTMnet has provided several network integration services successfully, including the integration and troubleshooting of 3Com Corporation network infrastructure equipment. Additionally, our current 3Com maintenance agreement, purchased through SBC Communications, is up for renewal. Such maintenance can be purchased directly from 3Com or through an authorized 3Com maintenance provider, at a reduced price. Due to the successful business relationship with MTMnet, we are able to expand this partnership to include 3Com hardware maintenance, as well as further augment the Information Technology Department’s occasional need for 3Com technology integration skills. Because 3Com Corporation requires authorized 3Com maintenance providers sell maintenance at the same pricing level and the contractor has gained considerable knowledge of the City’s 3Com network infrastructure through past work, the Purchasing Officer has waived the requirements of Section 3.28.150 of the Municipal Code. This agreement with MTMnet for integration services and 3Com provided maintenance would assist Information Technology staff in maximizing the ongoing efficiencies of the City’s wide area network. Effective integration and proper maintenance of network equipment helps ensure that the City’s network remains operational with minimum downtime. FISCAL IMPACT: The total fees payable to MTMnet, Inc. for the integration services performed and 3Com equipment maintenance shall not exceed $75,000 during an agreement year. Funds necessary to cover these expenses are appropriated in the Information Technology’s 2001-2002 operating budget. EXHIBITS: 1. Resolution No. drx>/-aal/; approving the agreement with MTMnet, Inc. for technology integration and maintenance services for the City’s wide area network. 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 RESOLUTION NO. 2o01-226 A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF CARLSBAD, APPROVING AN AGREEMENT WITH MTMNET, INC. FOR TECHNOLOGY INTEGRATION AND MAINTENANCE SERVICES FOR THE CITYWIDE NETWORK. WHEREAS, the City of Carlsbad requires the services of a technology integration contractor to provide the necessary network integration services, and; WHEREAS, MTMnet, Inc. possesses the necessary skills and qualifications to provide the network integration services required by the City; and WHEREAS, MTMnet, Inc. has the necessary experience in providing professional services and advice related to integration of networking technologies; and WHEREAS, selection of MTMnet, Inc. is expected to achieve the desired results in an expedited fashion; and WHEREAS, the City of Carlsbad requires 3Com Corporation equipment maintenance services, and; WHEREAS, MTMnet, Inc. possesses the necessary authorizations to resell and administer 3Com Corporation provided equipment maintenance required by the City; and NOW, THEREFORE, BE IT RESOLVED by the City Council of the City of Carlsbad as follows: 1. That the above recitations are true and correct. 2. That the Agreement with MTMnet, Inc. a copy of which is attached hereto is hereby approved and the City Manager is authorized to execute the same on behalf of the City. 3. That the 3Com Maintenance Terms and Conditions, attached to the Agreement with MTMnet, Inc. as Exhibit “C”, is hereby approved and the City Manager is authorized to execute the Terms and Condition on behalf of the City. 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 II 4. That the fees and compensation for said network integration and equipment maintenance services shall not exceed $75,000 per contract year and shall be as described in the contract between the City of Carlsbad and MTMnet, Inc. PASSED, APPROVED AND ADOPTED at a regular meeting of the City Council of the City of Carlsbad held on the 24th day of July , 2001 by the following vote, to wit: AYES: Council Members Lewis., Kulchin, Finnila, Nygaard, and Hal . . THIS AGREEMENT is made and entered into as of the day of a?H 2Oa, by and between the CITY OF CARLSBAD, a municipal corporation, “City”, and MTMnet Inc., a California corporation, “Contractor.” RECITALS A. City requires the services of network integration contractor to provide the following services: 1. Integration Services Local and wide area network integration on a as needed basis; and; 2. Hardware Maintenance 3Com Corporation provided maintenance for 3Com network infrastructure equipment; B. Contractor possesses the necessary skills and qualifications to provide the services required by the City; NOW, THEREFORE, in consideration of these recitals and the mutual covenants contained herein, City and Contractor agree as follows: 1. CONTRACTOR’S OBLIGATIONS A. Intearation Services Contractor’s obligations with respect to any project granted to Contractor under this agreement shall be as specified in the Task Description for the project (see Paragraph 4 below). B. Hardware Maintenance Contractor is an authorized dealer of 3Com rev. 4124100 -1 - networking technologies. Contractor hereby sells to City maintenance services for 3Com equipment. The supported equipment is further described in Exhibit “B”. 3Com service personnel shall perform hardware maintenance services pursuant to the terms described in Exhibit “c” entitled ‘3Com Service Agreement Terms and Conditions” which is attached hereto and incorporated herein by reference. 2. CITY OBLIGATIONS A. Integration Services City’s obligations with respect to any project granted to Contractor under this agreement shall be as specified in the Task Description for the project (see Paragraph 4 below). B. Hardware Maintenance City shall provide to Contractor and 3Com field technicians, access to City computer networks and facilities as required for the network services and access to on-site computers for use when necessary. 3. PROGRESS AND COMPLETION A. lnteqration Services Any integration services work shall begin within ten (10) days after receipt of notification to proceed by City and shall be completed by a mutually agreed upon date. The Information Technology Director may grant extensions of time if requested by Contractor and agreed to in writing. The Information Technology Director will give allowance for documented and substantiated unforeseeable and unavoidable delays not caused by a lack of foresight on the part of Contractor, or delays caused by City inaction. B. Hardware Maintenance 3Com hardware maintenance services for equipment listed on Exhibit “B” shall be performed by 3Com service personnel in accordance with terms and conditions described in Exhibit “C”. rev. 4/24/00 -2 - 4. FEES TO BE PAID TO CONTRACTOR A. lntearation Services Total fee payable for the services to be performed shall be determined on a project-by-project basis and shall be based on Contractor’s Schedule of Rates attached hereto as Exhibit “A”. Prior to initiation of any project work by Contractor, the City shall prepare a Project Task Description and Fee Allotment (the “Task Description”), which, upon signature by Contractor and for City, the Information Technology Director, shall be considered a part of this Agreement. The Task Description shall include a scope of services for the particular project being considered and a statement of Contractor’s fee to complete the project in accordance with the specified scope of services. Task Description shall also include a description of the method of payment and shall be based upon an hourly rate, percentage of project complete, completion of specific project tasks or a combination thereof. The cumulative total for all integration services allowed pursuant to this Agreement shall not exceed $25,000 dollars per fiscal year. B. Hardware Maintenance 3Com hardware maintenance for equipment listed on Exhibit “B” shall be billed at approximately $44,000 per contract year. The cost of said maintenance will fluctuate year-to-year based on the type and quantity of equipment covered. All telephone support, on site labor and materials are included in this annual amount. 5. DURATION OF CONTRACT This Agreement shall extend for a period of one year from date thereof. The contract may be extended by the City Manager for three additional one (1) year periods or parts thereof, based upon a review of satisfactory performance and the City’s needs. -3 - rev. 4/24/00 The parties shall prepare extensions in writing indicating effective date and length of the extended Agreement. 6. PAYMENT OF FEES Payment of approved items on the invoice shall be mailed to the Contractor within 30 days of receipt of the invoice. 7. FINAL SUBMISSIONS Within 14 days of completion and approval of a specified integration project the Contractor shall deliver to the City all documents developed during the course of the integration specified project. 8. CHANGES IN WORK If, in the course of the Agreement, changes seem merited by the Contractor or the City, and informal consultations with the other party indicate that a change in the conditions of the contract is warranted, the Contractor or the City may request a change in contract. Such changes shall be processed by the City in the following manner: A letter outlining the required changes shall be forwarded to the City by Contractor to inform them of the proposed changes along with a statement of estimated changes in charges or time schedule. A Standard Amendment to Agreement shall be prepared by the City and approved by the City according to the procedures described in Carlsbad Municipal Code Section 3.28.172. Such Amendment to Agreement shall not render ineffective or invalidate unaffected portions of the agreement. 9. COVENANTS AGAINST CONTINGENT FEES Contractor warrants that their firm has not employed or retained any company or person, other than a bona fide employee working for the Contractor, to solicit or secure rev. 4/24/00 -4 - 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, the City shall 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 such fee, commission, percentage, brokerage fees, gift, or contingent fee. 10. ANTI-DISCRIMINATION AND ANTI-HARASSMENT CLAUSE Contractor shall comply with all applicable state and federal laws and regulations prohibiting discrimination and harassment. 11. TERMINATION OF CONTRACT In the event of the Contractor’s failure to prosecute, deliver, or perform the work as provided for in this contract, the City Manager may terminate this contract for nonperformance by notifying the Contractor by certified mail of the termination of the Contractor. Contractor, thereupon, has five (5) working days to deliver said documents owned by the City and all work in progress to the Information Technologies Department. The Information Technologies Department shall make a determination of fact based upon the documents delivered to City of the percentage of work which the Contractor has performed which is usable and of worth to the City in having the contract completed. Based upon that finding as reported to the City Manager, the Manager shall determine the final payment of the contract. This Agreement may be terminated by either party upon tendering thirty (30) days written notice to the other party. In the event of such suspension or termination, rev. 4/24/00 -5 - upon request of the City, the Contractor shall assemble the work product and put same in order for proper filing and closing and deliver said product to City. In the event of termination, the Contractor shall be paid for work performed to the termination date; however, the total shall not exceed the lump sum fee payable under paragraph 4. The City Manager shall make the final determination as to the portions of tasks completed and the compensation to be made. 12. CLAIMS AND LAWSUITS Contractor agrees that any contract claim submitted to the City must be asserted as part of the contract 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 the City, it may be considered fraud and the Contractor may be subject to criminal prosecution. Contractor acknowledges that California Government Code sections 12650 et seq., the False Claims Act, 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 the City of Carlsbad 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 the Contractor to an administrative debarment proceeding wherein the Contractor may be prevented to act as a Contractor on any public work or improvement for a period of up to five years. The Contractor acknowledges debarment by another jurisdiction is grounds for the City of Carlsbad to disqualify the Contractor from the selection process. rev. 4/24/00 -8- i)D;1Jfl (Initial) A (Initial) The provisions of Carlsbad Municipal Code sections 3.32.025, 3.32.026, 3.32.027 and 3.32.028 pertaining to false claims are incorporated herein by reference. j$X@! (Initial) @&Initial) 13. JURISDICTION Contractor agrees and hereby stipulates that the proper venue and jurisdiction for resolution of any disputes between the parties arising out of this agreement is San Diego County, California. 14. STATUS OF THE CONTRACTOR Contractor shall perform the services provided for herein in Contractor’s own way as an independent contractor and in pursuit of Contractor’s independent calling, and not as an employee of the City. Contractor shall be under control of the City only as to the result to be accomplished, but shall consult with the City as provided for in the request for proposal. The persons used by the Contractor to provide services under this agreement shall not be considered employees of the City for any purposes whatsoever. Contractor is an independent contractor of the City. The payment made to the Contractor pursuant to the contract shall be the full and complete compensation to which the Contractor is entitled. The City shall not make any federal or state tax withholdings on behalf of the Contractor or its employees or subcontractors. The City shall not be required to pay any workers’ compensation insurance or unemployment contributions on behalf of the Contractor or its employees or subcontractors. Contractor agrees to indemnify the City within 30 days for any tax, retirement -7 - rev. 4/24/00 contribution, social security, overtime payment, unemployment payment or workers’ compensation payment which the City may be required to make on behalf of the Contractor or any employee or subcontractor of the Contractor for work done under this agreement or such indemnification amount may be deducted by the City from any balance owing to the Contractor. Contractor shall be aware of the requirements of the Immigration Reform and Control Act of 1986 and shall comply with those requirements, including, but not limited to, verifying the eligibility for employment of all agents, employees, subcontractors and Consultants that are included in this agreement 15. CONFORMITY TO LEGAL REQUIREMENTS Contractor shall cause all drawings and specifications to conform to all applicable requirements of law: federal, state and local. Contractor shall provide all necessary supporting documents, to be filed with any agencies whose approval is necessary. The City will provide copies of the approved plans to any other agencies. 16. OWNERSHIP OF DOCUMENTS All plans, studies, sketches, drawings, reports, and specifications as herein required are the property of the City, whether the work for which they are made be executed or not. In the event this contract is terminated, all documents, plans, specifications, drawings, reports, and studies shall be delivered forthwith to the City. Contractor shall have the right to make one (I) copy of the plans for its records. rev. 4/24/00 -8 - 17. REPRODUCTION RIGHTS Contractor agrees that all copyrights which arise from creation of the work pursuant to this contract shall be vested in City and hereby agrees to relinquish all claims to such copyrights in favor of City. 18. HOLD HARMLESS AGREEMENT Contractor agrees to indemnify and hold harmless the City of Carlsbad 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 willful misconduct, or negligent act, or omission 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. 19. ASSIGNMENT OF CONTRACT Contractor shall not assign this contract or any part thereof or any monies due thereunder without the prior written consent of the City. 20. SUBCONTRACTING If the Contractor shall subcontract any of the work to be performed under this contract by the Contractor, Contractor shall be fully responsible to the 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 contract shall create any contractual relationship between any subcontractor of Contractor and the City. Contractor shall bind every subcontractor and every subcontractor of a subcontractor by the terms of this contract applicable to Contractor’s work unless rev. 4/24/00 -9 - specifically noted to the contrary in the subcontract in question approved in writing by the City. 21. PROHIBITED INTEREST No official of the City who is authorized in such capacity on behalf of the City to negotiate, make, accept, or approve, or take part in negotiating, making, accepting, or approving of this agreement, shall become directly or indirectly interested personally in this contract or in any part thereof. No officer or employee of the City who is authorized in such capacity and on behalf of the City to exercise any executive, supervisory, or similar functions in connection with the performance of this contract shall become directly or indirectly interested personally in this contract or any part thereof. 22. VERBAL AGREEMENT OR CONVERSATION No verbal agreement or conversation with any officer, agent, or employee of the City, either before, during or after the execution of this contract, shall affect or modify any of the terms or obligations herein contained nor entitle the Contractor to any additional payment whatsoever under the terms of this contract, 23. SUCCESSORS OR ASSIGNS Subject to the provisions of Paragraph 18, “Hold Harmless Agreement,” all terms, conditions, and provisions hereof shall inure to and shall bind each of the parties hereto, and each of their respective heirs, executors, administrators, successors, and assigns. 24. EFFECTNE DATE This Agreement shall be effective on and from the day and year first written above. rev. 4/24/00 -10 - 25. CONFLICT OF INTEREST The City has determined, using the guidelines of the Political Reform Act and the City’s conflict of interest code, that the Contractor will not be required to file a conflict of interest statement as a requirement of this agreement. However, Contractor hereby acknowledges that Contractor has the legal responsibility for complying with the Political Reform Act and nothing in this agreement releases Contractor from this responsibility. 26. INSURANCE Contractor shall obtain and maintain for the duration of the contract 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 work hereunder by the Contractor, his agents, representatives, employees or subcontractors. Said insurance shall 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-Y and shall meet the City’s policy for insurance as stated in Resolution No. 91-403. A. Coveraaes and Limits. Contractor shall maintain the types of coverages and minimum limits indicated herein, unless a lower amount is approved by the City Attorney or City Manager: 1. Comprehensive General Liability Insurance. $1 ,OOO,OOO combined single-limit per occurrence for bodily injury, personal injury and property damage. If the submitted policies contain aggregate limits, general aggregate limits shall apply rev. 4124100 -11 - separately to the work under this contract or the general aggregate shall be twice the required per occurrence limit. 2. Automobile Liability (if the use of an automobile is involved for Contractor”s work for the City). $500,000 combined single-limit per accident for bodily injury and property damage. 3. Workers’ Compensation and Employer’s Liability. Workers’ Compensation limits as required by the Labor Code of the State of California and Employer’s Liability limits of $1,000,000 per accident for bodily injury. Workers’ Compensation insurance shall not be required if Contractor has no employees as demonstrated to satisfaction of City. 4. Professional Liability. Errors. and omissions liability appropriate to the contractor’s profession with limits of not less than $1 ,OOO,OOO per claim. Coverage shall be maintained for a period of five years following the date of completion of the work. B. Additional Provisions. Contractor shall ensure that the policies of insurance required under this agreement contain, or are endorsed to contain, the following provisions. 1. City shall be named as an additional insured on all policies excluding Workers’ Compensation and Professional Liability. 2. Contractor shall furnish certificates of insurance to the City before commencement of work. 3. Contractor shall obtain occurrence coverage, excluding Professional Liability which shall be written as claims-made coverage. -12 - rev. 4/24/00 4. This insurance shall be in force during the life of the agreement and any extension thereof and shall not be canceled without 30 days prior written notice to the City sent by certified mail. 5. If the Contractor fails to maintain any of the insurance coverages required herein, then the City will have the option to declare the Contractor in breach, or may purchase replacement insurance or pay the premiums that are due on existing policies in order that the required coverages may be maintained. The Contractor is responsible for any payments made by the City to obtain or maintain such insurance and the City may collect the same from the Contractor or deduct the amount paid from any sums due the Contractor under this agreement. 6. Should Contractor employ any employees in connection with this Agreement, Workers’ Compensation Insurance will be obtained as required by Section 26 A.3. of this Agreement. rev. 4/24/00 -13 - 27. RESPONSIBLE PARTIES The name of the persons who are authorized to give written notices or to receive written notice on behalf of the City and on behalf of the Contractor in connection with the foregoing are as follows: For City: Title Name Address For Contractor: Title Name Address Architect/License Number: Architect/License Number: Information Technology Director Lee Rautenkranz 1635 Faraday Ave Carlsbad CA 92006 President, MTMnet Inc Mike McGovern 4370 La Jolla Village Drive, Suite 400 San Diego Ca 92122 28. BUSINESS LICENSE Contractor shall obtain and maintain a City of Carlsbad Business License for the duration of the contract. 29. ENTIRE AGREEMENT This agreement, together with any other written document referred to or contemplated herein, along with the purchase order for this contract and its provisions, embody the entire agreement and understanding between the parties relating to the subject matter hereof. In case of conflict, the terms of the agreement supersede the purchase order. Neither this agreement nor any provision hereof may be amended, modified, waived or discharged except by an instrument in writing executed by the party against which enforcement of such amendment, waiver or discharge is sought. rev. 4/24/00 -14 - Executed by Contractor this a7 day of J&z I 200/ . CONTRACTOR: #TMUE~ zw 6 (name of Contractor) ClTY OF CARLSBAD, a municipal corporation of the State of California By: @yz: g!&&m (sign here) ATTEST: (Proper notarial acknowledgment of execution by Contractor must be attached. Chairman, president or vice-president and secretary, assistant secretary, CFO or assistant treasurer must sign for corporations. Otherwise, the corporation must attach a resolution certified by the secretary or assistant secretary under corporate seal empowering the officer(s) signing to bind the corporation.) APPROV AS TO FORM: RONALD BALL, City Attorney rev. 4124100 -15- CALIFORNIA ALL-PURPOSE ACKNOWLEDGMENT STATE OF CALIFORNIA COUNTYOF SAN DIE60 ss. OnJune 27, 2O'Q1* before me, the undersigned, personally appeared MICHAEL T. MCGOVERN AND VIRGINIA L. MCGOVERN 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. WITNESS my hand and official seal. SignaturZ&$2I- C . G- Though the data below are not required by law, they may prove valuable to persons relying on the document and could prevent the fraudulent reattachment of this form. Capacity Claimed By Signer 0 Individual IxI Corporate Officer PRESIDENT/SECRETARY Titles(s) [II Partner(s) Cl Limited Cl General 0 Attorney-in-Fact q Trustee(s) 0 Guardian/Conservator 0 Other: Signer Is Representing: Name of Person(s) or Entity(ies) Description of Attached Document CONTRACTOR AGREEMENT Title or Type of Document Number of Pages June 27. 2001 Date of Document Signer(s) Other Than Named Above Exhibit uA” Gordon Peterson City of Carlsbad 1635 Faraday Ave Carlsbad, CA 92008-73 14 Dear Mr. Peterson: MTMnet, Inc provides technical and consulting services at the following hourly rates: $150.00 - During Normal Business Hours, 8:OOAM to 5:OOPM $225.00 - During After Business Hours, 5:OOPM to 8:OOam $250.00 - During Holiday Hours The City of Carlsbad also has the option of prepaying for a minimum block of 8 hours at the rate of $150.00 per hour, ($1,200.00 Total) which can be used at anytime including after hours and holidays. Sincerely, Michael T. McGovern Metwork Consultant 858-509-I 525 Fax-509-l 52 I EXHIBIT “6” Terms: NET 30, FOB Origin, Quote valid for 15 June 30.2001 Citv of Carlsbad ............ .” ........... 1 ,Qmi,;yJj#*(i# i:::: j’ :i :,.Imrqjtian, :,:i,: :_ijjji: I~:::_l’;i::::iijij:~~~~~‘:~:‘~~.:~~.~~ :::i:“i’: :j i ... ........ .... ... i-(;J~&P~jfai&:~ ... ...... .. ... ..................... ....... : i:Tg# P&g .. J Scorn Guardian Maintenance I24x7x41 2 3C6904 3Com NETBuilder II DPE 40 6 Slot EZ $ 3,169.OO $ 6 3C6047A 3Com NETBuilder II HSS 4 Port WAN mod $ 945.00 $ 1 3C6070 3Com NETBuilder II lOOBase-TX Module 615.00 $ 1 3C6021 3Com NETBuilder II lOBase- AUI Module : 246.00 $ 3 3c93012 SuperStack II 9300 Gigabit Switch 12 SX $ 2,639.OO $ 4 3C6040 3Com NETBuilder II HSS 3 Port V35 Module $ 725.00 $ 1 3C6903A 3Com NETBuilder II DPE 40 4 Slot EZ $ 2,639.OO $ 1 3C6060 3Com NETBuilder II MP 6 Port Ethernet Mod $ 1,759.OO $ 1 3C6442 3Com SuperStack NETBuilder SI 442 $ 661.00 $ 1 3Cl6962 3Com SuperStack II 3300 FX Switch $ 1,266.OO $ 1 3C6447 3Com SuperStack NETBuilder SI 447 s 969.00 $ 3Com Exwess Maintenance (8xSxNBD~ 3 3Cl6071 3Com SuperStack Advanced RPS Chassis $ 56.00 $ 12 3616074 3Com SuperStack Advanced RPS Module $ 42.00 $ 24 3C39036 3Com SuperStack Switch, II 3900 36 Ports $ 315.00 $ 2 3Cl6967A 3Com SuperStack 3 Switch 3300SM $ 165.00 $ 11 3Cl696OA 3Com Super-Stack II Switch 3300 2 3Cl6960 3Com SuperStack II Switch Matrix Module s$ 126.00 $ 70.00 $ 2 3Cl6970 3Com SuperStack II 1OOBaseFX Module .$ 42.00 $ 2 3Cl6950 3Com SuperStack II Switch 1100 : 93.00 $ 9 3C6611 3Com OfficeConnect NETBuilder 111 63.00 $ 3 3C622 1 3Com NBRO Boudary Router 140.00 $ 11 3Cl67OOA 3Com OfficeConnect Hub, 6 Port RJ45 f 5.00 $ 1 3Cl6965B 3Com SuperStack 3 Switch 3300XM $ 67.00 $ Equipment Total $ Tax $ Shipping $ 6,376.OO 5,670.OO 615.00 248.00 7,917.oo 2,900.oo 2,639.OO 1,759.oo 661 .oo 1,266.OO 969.00 166.00 504.00 7,560.OO 330.00 1,366.OO 140.00 64.00 166.00 567.00 420.00 55.00 67.00 42,569.OO - - Total Coat $ 42,589.OO Toll Free# 877-8-MTMnet 1 MTMnet 3Com Maint Quote exhibit B Contract No.: Service Agreement Terms and Conditions This 3Com Service Agreement Terms and Conditions (“Agreement”) is entered into o Date”) between City of Carlsbad (“Customer”) with its principle place Carlsbad CA 92008 and 3Com Corporation (“3Com”) with its pri Santa Clara, California 95052. 1.0 1.1 1.2 1.3 1.4 1.5 1.6 1.7 1.8 1.9 1.10 DEFINITIONS “Agreement” means the Service Offering(s) ordered by Customer, these Terms and Conditions, the Customer Information Document, applicable national or regional Addenda (as attached) and all attached exhibits. “Customer” means a company or organization with 3Com Equipment which is receiving support from 3Com per the terms hereof. “Customer Information Document” means the list of Equipment and/or Software, including site contact information provided by Customer, which upon validation by 3Com becomes part of this Agreement. “Equipment” means the hardware products identified in the Customer Information Document and any new or relocated hardware products added during the term hereof. “Product” means replacement subassemblies, replacement units, and/or Sof&ware Updates provided under this Agreement. “Service Offering” means the description of the Services which may be provided by 3Com. 3Com reserves the right to amend, modify or withdraw any such Service Offerings without any notice, provided such changes shall not reduce the level of the Service for which Customer has contracted until the end of the specific support term. “Services” means the services as defined in the Service Offering for the Equipment and/or Software purchased by Customer as identified in the Customer Information Document. “Site Location” means a physical location associated with a single address and includes the floors of a single building or adjoining buildings when linked together by 3Com Equipment into a functionally integrated networking system. ‘Software” means those computer programs which the Customer has licensed from 3Com as identified in the Customer Information Document and any Software Update related thereto. “Software Update” means a formal software release which 3Com has classified as a “major or minor” release (i) which incorporates major functionality changes to the 1.11 1.12 2.0 2.1 2.2 3.0 3.1 Software (unless treated as a new product by 3Com for which there will be a separate charge), or (ii) that is a “maintenance” release that corrects deficiencies and/or bugs affecting performance to 3Com published specifications. “Support Charge” means the fes for the Services as described in the Service Dffering(s). “Welcome Letter” means a document or electronic transmission from 3Com notifying Customer following the receipt of valid funding instrument for the Services, which includes the contract number and commencement date. TERM AND TERMINATION Term. The Term of this Agreement begins on the commencement date specified on the Welcome Letter for the first Service order and shall continue for the later of (i) one (1) year from the commencement date or (ii) upon expiration of any Senrices ordered prior to the expiration date as specified in the Welcome Letter, unless terminated earlier as provided herein. The Agreement will automatically be extended for additional one (1) year terms thereafier provided Customer issues a purchase order, unless one party gives at least thirty (30) days notice to the other party prior to the expiration of the current term of its intention that the Agreement expire at the end of its current term. Termination For Cause. Either patty may terminate this Agreement for cause if the other party: (a) fails to perform any material term or condition of this Agreement, and does not remedy the failure within thirty (30) days after receipt of written notice of such default, or (b) becomes insolvent, files or has filed against it a petition under applicable bankruptcy or insolvency laws which is not dismissed within ninety (90) days, or makes any other or similar arrangements for the benefit of its creditors or takes any similar actions. ELIGIBILITY FOR SUPPORT Eligibility for Support. To be eligible for Service Offering(s) the Equipment must contain the most current, or previous 3.2 3.3 3.4 4.0 4.1 4.2 4.3 5.0 to current revision of 3Com Software and/or firmware. The Equipment must be installed and remain in an operating environment which is in accordance with the specifications set forth in the manual furnished with the Equipment. Equipment or Software which has been modified without 3Com’s prior written approval is not eligible for Support Services. Same Product Coverage. 3Com requires that each unit of the same 3Com product type located at a Site Location be covered by the same level of Service. A Customer must have both the chassis and all associated cards covered under the same maintenance program. Customer shall notify 3Com if additional same type product unit(s) are purchased or licensed during the term of this Agreement and shall pay a pro-rated Support Charge for such additional Equipment or Sottware. Extent of Entitlement. Customer is entitled to receive support on a Product only if Customer has paid Support Charges for such Product and has registered such Product’s serial number with 3Com. If there is any indication that support is being received on a Product which is not covered by this Agreement, 3Com reserves the right, upon reasonable advance notice, to perform an audit of Customers Product and records at any location. If 3Com determines that unauthorized support is occurring, 3Com may charge the appropriate support fee as well as audit fees. Hardware Upgrades. Customer shall notify 3Com of any hardware upgrades purchased during the term of this Agreement. RIGHTS AND OBLIGATIONS Customer Requirements. Customer shall provide 3Com with the contract number as specified in the Welcome Letter, and upon request by 3Com, shall provide unit serial numbers when requesting Services under this Agreement. 3Com Access. Customer shall cooperate with 3Com and provide access to all documentation, diagnostics programs, operating systems, utilities, application programs and, as deemed necessary by 3Com, access to the Equipment (either via modem or physical access to the sites). Third Party. 3Com may, at its option, designate a third party contractor to provide Services to Customer hereunder on behalf of Scorn. The appointment by 3Com of such an authortzed representative shall not relieve 3Com of its obligations hereunder nor be considered an “assignment” under Section 10.7 of this Agreement. SERVICE EXCLUSIONS The following services are specifically excluded from the Services provided under this Agreement; however, they 5.1 5.2 5.3 5.4 5.5 5.6 5.7 5.6 6.0 6.1 6.2 6.3 may be provided by 3Com at the request of Customer for an additional charge: Any work at Customer’s site, other than as specified in the Service Offering. Any services, including replacement of parts or repair of damage, necessitated by any repair or attempt to repair or modification carded out to the Equipment or the Software by any person other than an authorized representative of 3Com. Any services, including replacement of parts or repair of damage, which in the reasonable opinion of 3Com are necessitated by the unit or subassembly having been misused or used in a negligent manner or used for other than its intended use or outside the environmental range specified by 3Com. Any changes to the performance of the Equipment or the Software beyond those required to make them comply with their specifications. Cleaning, painting or refinishing the Equipment. Any services in connection with or arising out of relocation of the Equipment or the addition, removal, or maintenance of any third party equipment, accessories, attachments or other devices not originally forming part of the Equipment or the Software. Any electrical work external to Equipment. Any services to the Equipment or the Software resulting from unusual external causes such as, but not limited to. power failure, power surges, air conditioning failure, humidity, improper input/output signals to 3Com’s connections or Customers other software not previously approved by 3Com. accident, fire, explosion or Act of God. Any services for Equipment or Software which has been obsolete for a period longer than two (2) years, unless 3Com in its sole discretion elects otherwise. PAYMENT TERMS Support Charges. Support Charges will be the amount specified on the formal quotation. Support Charges will be payable annually in advance. Payment is due within thirty (30) days from the date of invoice. All payments will be in U.S. dollars, free of any withholdings or restrictions. Support Services Agreements. Where a 3Com Support Services Agreement has been purchased from a 3Com Service Reseller Direct or 3Com Distributor, the 3Com Service Reseller Direct or 3Com Distributor will be invoiced for the Support Charge as defined In Section 6.1 above. Price Changes. 3Com may change the Support Charges upon thirty (30) days prior written notice prior to the expiration of the current term. As new or relocated Equipment or Software is added, the Services provided for such additional Equipment or Software will be at the 3Com Service Agreement OSFebOl.doc - CW:MS Page 2 of 19 then-current 3Com list price, less applicable discounts. if any. 6.4 Taxes. Customer is responsible for all taxes imposed in connection with the sale to Customer of Services or which 3Com may incur in respect of this Agreement (except taxes imposed on 3Com’s income) and any penalties, interest and collection or withholding costs associated therewith. All such amounts are in addition to other amounts payable hereunder. For Services within the United States, Customer may provide 3Com with a tax exemption certificate acceptable to taxing authorities in lieu of paying such taxes; however, Customer shall reimburse 3Com for any fines, penalties, taxes, and other charges assessed by the taxing authorities, as well as 3Com’s reasonable expenses due to Customer’s submission of invalid information. 6.5 International Tax Issues. If applicable law requires Customer to withhold any inwme taxes levied by the authorities of Canada or by the authorities of the jurisdiction in which the Customer is resident on payments to be made pursuant to this Agreement (“Withholding Tax”), Customer shall take advantage of the reduced Withholding Tax provided for by the Canada- United States tax treaty (or treaty from Customers resident jurisdiction) then in force and shall be entitled to deduct such Withholding Tax from the payments due to 3Com hereunder. Customer shall promptly effect payment of the Withholding Tax to the appropriate tax authorities suftident to enable 3Com to support a claim for income tax credits in the United States. Customer further agrees to assist 3Com, upon request, if 3Com contests, by appropriate legal or administrative proceedings, the validity or amount of the Withholding Tax. In the event 3Com does not receive official tax receipts or other evidence within thirty (30) days, 3Com shall have the right to invoice Customer for such Withholding Tax and Customer agrees to pay such amounts upon receipt of the invoice. On Services provided outside the United States, Customer is responsible for obtaining import licenses, paying import license or permit fees, duties and customs fees (including without limitation government. import, excise, sales, use, value-added and other taxes or fees), and preparing and submitting all required documentation in connection with importing 3Com Product. 6.6 Delinquent Payments. 3Com may suspend its performance or terminate this Agreement, without limiting any other rights it may have, if Customer becomes delinquent in the payment of any undisputed invoice from 3Com for a period in excess of thirty (30) days. 3Com reserves the right to charge Customer interest on any delinquent balance. This interest is computed on a daily basis for each day that the payment is delinquent at the 6.7 lesser of eighteen percent (16%) per year or the maximum rate permitted by law. Services Outside this Agreement. If Customer requests that services be performed outside the scope of this Agreement or outside the normal period of coverage under this Agreement, such services may be furnished on a time and materials basis at 3Com’s then-current rates, subject to availability of 3Com’s service personnel. At 3Com’s discretion an additional Purchase Order may be required before such services are rendered. 7.0 7.1 CONFlDENTlAL INFORMATION Either party may provide to the other certain informatton which is confidential in nature in connection with the Services and this Agreement. All such information shall be marked as confidential in order to be protected hereunder. Confidential information shall not be divulged to any third party without the prior written consent of the disclosing party for a period of three (3) years following receipt. This obligation shall not apply to information which: (i) now or hereafter, through no unauthortzed act or failure to act on recipients part, becomes generally known or available; (ii) is lawfully known to the recipient without an obligation of confidentiality at the time recipient receives the same from the disclosing party, as evidenced by written records; (iii) is hereafter lawfully furnished to the recipient by a third party without restriction on disclosure; (iv) is furnished to others by the disclosing party without restriction on disclosure: (v) is independently developed by the recipient without use of the disclosing party’s confidential information; or (vi) is required to be disclosed pursuant to a requirement of a governmental agency or law, so long as the recipient provides prompt notice to the disclosing party of such requirement prior to any such disdosure. 8.0 8.1 8.2 8.3. LIMITED WARRANTY 3Com warrants that the replacement subassembly or unit will be free from defects in material and workmanship for the later of a period of ninety (90) days from the date of shipment to Customer, until the Services wvering such subassembly or unit expires or is terminated, or the expiration of the applicable warranty period for the initial purchase of the subassembly or unit. 3Com’s sole obligation under this limited warranty shall be, at 3Com’s option, to repair or replace any replacement unit or subassembly found to be defective during the warranty period, at no additional cost to Customer. Customer must notify 3Com of any defect, or present the defective unit or subassembly to an authotized representative of 3Com during the warranty period. 3Com Service Agreement 05FebOl.doc - CW:MS Page 3 of 19 a.4 8.5 0.6 9.0 9.1 9.2 Software Updates are covered by the limited warranty accompanying those updates, if applicable, or the warranty accompanying the original version of the Software. All Sofhvare Updates shall be governed by the terms and conditions of the license agreement which accompanied the Software purchased by Customer. In addition to the warranties identified in paragraphs 8.1 and 8.4, above, 3Com warrants that, as of the commencement date of this Agreement, for each replacement subassembly, replacement unit, or Software Update (hereinafter 3Com Product”) that is date sensitive, such 3Com Product will continue performing properly with regard to such date data on and after January 1,200O in accordance with the warranty contained in 3Com’s web site, htto:/hnnrYw.3com.wm/oroducts/vr2OOO.html. TO THE FULL EXTENT ALLOWED BY LAW, THE FOREGOING WARRANTIES AND REMEDIES ARE EXCLUSIVE AND IN LIEU OF ALL OTHER WARRANTIES, TERMS, OR CONDITIONS, EXPRESS OR IMPLIED, EITHER IN FACT OR BY OPERATION OF LAW, STATUTORY OR OTHERWISE, INCLUDING WARRANTIES, TERMS, OR CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND SATISFACTORY QUALITY. BCOM’S WARRANTIES CONTAINED HEREIN RUN ONLY TO CUSTOMER, AND ARE NOT EXTENDED TO ANY THIRD PARTIES. 3COM NEITHER ASSUMES NOR AUTHORIZES ANY OTHER PERSON TO ASSUME FOR IT ANY OTHER LIABILITY IN CONNECTION WITH THE SERVICES PROVIDED UNDER THIS AGREEMENT. 3COM SHALL NOT BE LIABLE UNDER THIS WARRANTY IF ITS TESTING AND EXAMINATION DISCLOSE THAT THE ALLEGED DEFECT IN THE EQUIPMENT OR SOFTWARE DOES NOT EXIST OR WAS CAUSED BY CUSTOMERS OR ANY THIRD PERSON’S MISUSE, NEGLIGENCE, IMPROPER INSTALLATION OR TESTING, UNAUTHORIZED ATTEMPTS TO REPAIR OR MODIFY, OR ANY OTHER CAUSE BEYOND THE RANGE OF THE INTENDED USE, OR BY ACCIDENT, FIRE. LIGHTNING OR OTHER HAZARD. LlMlTATlON OF LlABlLllY AND INDEMNITY Except as otherwise provided for in this Agreement, 3Com’s liabilities or obligations under or pursuant to this Agreement are expressly limited to the provision of the Services for the Equipment and the Software. In no event shall 3Com’s liability exceed an amount equal to two (2) times the Support Charge for twelve (12) months’ Services hereunder. 3Com shall not be liable for any damages arising from performance or non-performance of the Equipment or 9.3 9.4 9.5 Software during a testing period or for any damages caused by the failure of Customer to perform its responsibilities. 3Com shall not be responsible for any sofhvare, firmware, information or memory data of Customer contained in, stored on, or integrated with any Equipment or Sottware returned to 3Com under this Agreement. 3Com shall, at its own expense, defend or settle any suit or proceeding that is instituted against Customer by a third party to the extent such suit or proceeding alleges personal injury, death, or damage to tangible property directly caused by any 3Com Product provided under this Agreement or through the negligence or intentional wrongful acts or omissions when there is a duty to act on 3Com, 3Com’s subcontractors or any person for whose actions 3Com is legally liable. 3Com shall pay all damages awarded therein against Customer or agreed upon in settlement by 3Com. provided that Customer gives 3Com prompt notice in writing of any such suit, proceeding, or threat thereof, and permits 3Com, through counsel of its choice, to answer the charges and defend and/or settle such suit, and Customer gives 3Com all the needed information, assistance and authority, at 3Com’s expense, to enable 3Com to defend or settle such suit. TO THE FULL EXTENT ALLOWED BY LAW THE PARTIES EXCLUDE ANY LIABILITY, WHETHER BASED IN CONTRACT OR TORT (INCLUDING NEGLIGENCE), FOR INCIDENTAL, CONSEQUENTIAL, INDIRECT, SPECIAL OR PUNITIVE DAMAGES OF ANY KIND, OR FOR LOSS OF REVENUE OR PROFITS, LOSS OF BUSINESS. LOSS OF INFORMATION OR DATA, OR OTHER FINANCIAL LOSS ARISING OUT OF OR IN CONNECTION WITH THE PERFORMANCE OF SERVICES UNDER THIS AGREEMENT EVEN IF ADVISED OF THE POSSIBILITY OF SUCH POTENTIAL LOSS OR DAMAGE. THE DISCLAIMER OF LIABILITY FOR DAMAGES WILL NOT BE AFFECTED IF ANY REMEDY PROVIDED HEREIN SHALL FAIL OF ITS ESSENTIAL PURPOSE. 10.0 GENERAL 10.1 Relationship of the Parties. Each party is an independent contractor, and not an agent or employee of the other party. 10.2 Entire Agreement. This Agreement is intended as the complete statement of the terms of the agreement between the parties relating to subject matter hereof. This Agreement supersedes all previous proposals, oral and written, and all negotiations, conversations or discussions heretofore had behnreen the parties relating to this Agreement. The Terms and Conditions of this Agreement shall prevail notwithstanding any conflict with the terms 3Com Service Agreement OjFebOl.doc - CW:MS Page 4 of1 9 10.3 10.4 10.5 10.6 10.7 10.8 10.9 and wndltlons of any purchase order or other instrument submitted by Customer or 3Com. Force Majeure. If either party is prevented from carrying out any of its obligations under this Agreement due to any circumstance beyond its reasonable control including, without limitation, act of government or God, interruption of power supplies, interference by a third party, industrial disputes, earthquake or other natural disaster, the party affected shall be excused from performance of such obligation for the duratton and to the extent of such preventing circumstance. Waiver. A waiver of any default hereunder or of any of the terms and conditions of this Agreement shall not be deemed to be a continuing waiver or a waiver of any other default or of any other term or condition. Amendments. This Agreement shall not be deemed or construed to be modified, amended, rescinded, canceled or waived, in whole or in part, except by written amendment signed by the parties hereto. Severability. In the event any provision of this Agreement is found to be invalid, illegal or unenforceable, the validity, legality and enforceability of any of the remaining provisions shall not be affected thereby. Assignment. Neither this Agreement nor any of the rights or obligations of either party shall be assigned or transferred without the prior written consent of the other party, which consent shall not be unreasonably withheld or delayed. Notwithstanding the foregoing, 3Com shall have the right (i) to assign all of its rights and obligations in the case of a merger, consolidation or sale of assets involving substantially all of its assets or substantially all the assets of a particular product line or business line which product line is included within the terms of this Agreement and (ii) to assign the right to receive payment. English Language. Customer agrees that the original of this Agreement will be written in the English language and waives any rights it may have under the laws of its country of residence to have such Agreement written in its local language. If a local language version is provided, it is for convenience only and the English language version shall be the binding document. Notices. Any notice regarding non-performance, breach, termination, or renewal required or permitted to be given under this Agreement shall be given in writing and shall be hand delivered or deposited, postage prepaid, registered or certified mail, in the United States mail, or sent by express delivery, addressed to Customer or 3Com, as the case may be, at the address first stated in this Agreement or at such other address as shall be given by either one to the other in writing. All other notices may be sent by regular mail or facsimile. All notices shall be deemed to have been given and received on the earlier of actual delivery or three (3) days from the date of postmark. 10.10 Dispute Resolution. The parties will attempt in good faith to promptly resolve any dispute, controversy, or daim (‘Dispute”) arising out of or relating to this Agreement through negotiations between the parties before resorting to other remedies available to them. Any such Dispute shall be referred to appropriate senior executives (e.g. director or V.P. level) of each party who shall have the authority to resolve the matter. Discussions and correspondence relatlng to trying to resolve such Dispute shall be treated as confidential information developed for the purpose of sefflement and shall be exempt from discovery or production and shall not be admissible in subsequent mediation, other alternate dispute resolution (“ADR”), or litigation. If the senior executives are unable to resolve the Dispute within thirty (30) days from the date of the written communication requesting referral to the executives, and either party wishes to pursue its rights relating to such Dispute, then the Dispute may be mediated by a mutually acceptable mediator appointed pursuant to the mediation rules of JAMSlEndispute within thirty (30) days after written notice by one party to the other demanding non-binding mediation. If mediation is agreed upon, neither party may unreasonably withhold consent to the selection of a mediator or the location of the mediation. Both parties will share the costs of the mediation equally, except that each party shall bear its own costs and expenses, including attorney’s fees, witness fees, travel expenses, and preparation costs. The parties may also agree to replace mediatton with some other form of non-binding or binding ADR. If the parties agree upon binding arbitration, the power of the arbitrator(s) shall be limited to that possessed by a Superior Court Judge in California and the arbitrator(s) shall be prohibited from awarding damages or remedies in excess of those allowed by the provisions of this Agreement. Any Dispute which the parties cannot resolve through mediation within two (2) months of the date of the initial demand for it by one of the parties may then be submitted to a wurt for resolution. The use of any ADR procedures will not be construed under the doctrine of laches, waiver or estoppel to adversely affect the rights of either party. 10.11 Governing Law. The validity, perfom-rance construction, and interpretation of this Agreement shall be governed by the laws of the State of California. excluding conflicts of laws principles and exduding the United Nations Convention on Contracts for the International Sale of Goods. The Superior Court of San Diego County and/or the United States District Court for the Southern District of California shall have non-exclusive jurisdiction and venue over such action for any claim which is not required to be resolved by binding arbitration as defined in section 10.10 above,. 3Com Service Agreement OSFebOl.doc - CW:MS Page 5 of 19 10.12 Fees. In any legal action to enforce, or arising out of a sale subject to, this Agreement, the prevailing party shall be awarded arbitration costs, court costs and reasonable attorney’s fees incurred as the court of final jurisdiction in the matter shall determine. 10.13 Export Regulations. Customer agrees that it will not export or reexport the 3Com Software, 3Com Hardware, Documentation, or other 3Com Products or other technical data received hereunder (or any copies thereof) (collectively ‘Technical Data”) or any products utilizing the Technical Data in violation of any applicable laws or regulations of the United States or the country in which Customer obtained them or where Customer resides. In addition, the Technical Data covered by this Agreement may contain data encryption code that Is unlawful to export or transfer from the United States or Canada without an approved U.S. Department of Commerce export license and/or appropriate foreign export or import license. Customer is responsible for obtaining any licenses to export, reexport or import the Technical Data. In addition to the above, Technical Data may not be used, exported or reexported (i) into or to a national or resident of any country to which the U.S. has embargoed goods, or (ii) to any one on the U.S. Treasury Department’s list of Specially Designated Nationals or the U.S. Commerce Departments Table of Denial Orders. 10.14 Foreign Corrupt Practices Act. In conformity with the United States Foreign Corrupt Practices Act and with 3Com’s established corporate policies regarding foreign business practices, Customer and its employees and agents shall not directly or indirectly make an offer, payment, promise to pay, or authotize payment, or offer a gift, promise to give, or authorize the giving of anything of value for the purpose of influencing an act or decision of an official of any government (including a decision not to act) or inducing such a person to use his influence to affect any such governmental act or decision in order to assist Customer in obtaining or directing any such business. 10.15 U.S. Government Restricted Rights Legend. All 3Com technical data and computer software is commercial in nature and developed solely at private expense. The sofhtvare delivered hereunder is delivered as Commercial Computer Software as defined in DFARS 252.227-7014 (June 1995) or as a wmmercial item as defined in FAR 2.101(a) and as such is provided with only such rights as are provided in 3Com’s standard commercial license for such software. Technical data is provided with limited rights only as provided in DFARS 252.227-7015 (Nov. 1995) or FAR 52.227-14 (June 1987) whichever is applicable. Customer agrees not to remove or deface any portion of any legend on any 3Com Software, 3Com Hardware or Documentation delivered to it under this Agreement. 10.16 Encrypted Products. Additional information about Customer may be required before encrypted products are provided. The provision of such encrypted products will be allowed only if it is in full compliance with U.S. law. 3Com may require Customer to fill out and execute additional export control documents. 10.17 Survival. The termination or expiration of this Agreement shall in no way relieve either party from its obligations to pay the other party any sums accrued hereunder prior to such termination or expiration or affect the provisions of Section 9.0, “Limitation of Liability and Indemnity,” above. The provisions of this Section 10.0, “General” shall survive for a period of five (5) years from the termination or explratlon of this Agreement. All warranties and confidentiality provisions shall remain in effect for their stated duration. IN WITNESS WHEREOF, the parties hereto have signed this Agreement as of the Effective Date stated at the beginning of this Agreement. 3Com Corporation and its Subsidiaries Signature: Printed: Mark Michael Printed: Ray-Patchett Title: SVP. General Counsel & Secretaw Date: June 27.2001 Title: City Manaqer Date: DAMlEN B. BROWER De~utv Cii Atth6f19 3Com Service Agreement 05FebOl.doc - CW:MS Service Offerings GuardianSm Service Description GuardianSm Service entitles Customer to technical support for an unlimited number of incidents, on-site support, advance hardware replacement and software updates for those products and to those sites listed on the Customer Information Document(s). The Service is provided for single site installations, multi-sites in the same country or over several country boundaries. Technical Support Customer is entitled to technical support for an unlimited number of incidents. Technical support will include assistance in the use of supported Equipment and Software by means of telephone technical support or via access to 3Com’s technical support web site. Such assistance will include identification of Equipment and/or Software problems and work-arounds when possible. Assistance may also include logging into Customer’s systems via modem for diagnosis of problems. Where technical support is provided, 3Com will provide quality technical support in accordance with generally recognized business practices and standards. Advance Hardware Replacement Customer is entitled to receive advance replacement of hardware Product prior to 3Com receiving the faulty item. Hardware will be shipped to arrive at the Customer site within the period of time as specified in the Welcome Letter. Within fifteen (15) calendar days of the issuance of a Return Material Authorization (RMA), Customer shall return the inoperable unit or subassembly to 3Com. In the event the unit or subassembly is not returned in the above period, or is returned in an unacceptable condition, as defined in Section 5 of the Terms and Conditions, Customer shall pay the list price per unit as stated in the then-current 3Com price list. Customer’s failure to pay the price or return Equipment promptly will result in the suspension of Services by 3Com. If, during any one (1) year period, more than fifteen percent (15%) of the units or subassemblies returned to 3Com for replacement are diagnosed as “No Trouble Found,” Customer may be charged a fee of five percent (5%) of the then-current list price of the actual unit or subsequent product (where the actual product is obsolete) for each unit or subassembly returned after the fifteen percent (15%) threshold has been reached, not including the unit whose return results in meeting the fifteen percent (15%) threshold. 3Com will provide written notification to Customer in the event it intends to apply the fee identified in this paragraph. On-site Support Customer is entitled to on-site support. When a Customer reported Product failure cannot be resolved by utilizing technical support, 3Com will dispatch an engineer to arrive on-site within the time period specified in the Welcome Letter. If you have selected the enhanced four (4) hour response time, or the extended service hours, the engineer will respond accordingly. Standard on-site coverage is Monday through Friday, from 8:00 a.m. to 5:00 p.m. local time. 3Com personnel or 3Com’s third party agents shall comply with all Customer or Government imposed security requirements while on Customer premises. However, 3Com shall not be responsible for delays in performing Services due to Customer’s failure to provide 3Com personnel with access to Customer’s facilities or due to such security requirements. 3Com may charge Customer a service fee if 3Com responds to Customer’s request to be on-site and a knowledgeable employee of Customer fails to appear at the designated time and place. 3Com reserves the right to use third party service providers to deliver on-site support. 3Com further reserves the right to charge Customer on a time and materials basis if, upon visiting a Customer site, 3Com demonstrates that the reported problem is not being caused by a malfunctioning 3Com product. 3Com Service Agreement OSFebOi.doc - CW:MS Page 7of 19 Software Updates Customer is entitled to access all Software Updates (including related release notes) that are released for Products identified in the Customer Information Document. All Software provided pursuant to a Service Offering will be governed under the same terms and conditions as set forth in the license agreement accompanying the original Software licensed by the Customer. Customer has the right to duplicate both the Software and documentation for its own internal use, in quantities equal to the number of units of Equipment and/or Software specified in the Customer Information Document provided that all copyright, trademark, and other proprietary rights notices are also reproduced in the same form and manner as on the original media provided. 3Com Service Responsibilities Service Responsibilities at Service Start Date l Provide Customer with a contract number and unique password that enables access to a protected area of 3Com’s World Wide Web site. l Provide Customer with instructions on how to contact 3Com to obtain Services. Service Responsibility During the Service Period l Respond to Customer requests for advanced hardware replacement within the time period specified in the Welcome Letter. 3Com will deliver hardware to the Site Location provided on the Customer Information Document. All delivery costs are borne by 3Com. 3Com will provide a Return Material Authorization number (RMA) to allow the Customer to return the faulty product. l Respond to Customer requests for technical support within one hour of the initial contact by Customer. 9 Dispatch a field engineer to arrive at Customer site within the time period specified in the Welcome Letter. The time period begins when 3Com and Customer conclude an on-site engineer is required. Obligations of Customer l Unless instructed otherwise by 3Com, complete a Customer Information Document for each Site Location which requires Service. Notify 3Com when contact information is changed. l When a Software Update is desired, download such Software Update in accordance with instructions l When a hardware replacement is required, notify 3Com per the instructions provided in the 3Com Welcome Letter. l Return to 3Com the original defective equipment within fifteen (15) days from receipt of the replacement Equipment. l When technical support is required, notify 3Com per the instructions provided in the 3Com Welcome Letter. l When on-site support is required, provide, free of charge, working space, including heat, light, ventilation, electrical current, telephone with a cord length to reach computer maintenance and/or operator panel, and electrical outlets for access to the Equipment as this will enable 3Com to carry out its obligations under this Agreement, comply with the duties imposed on Customer by any applicable health and safety legislation and any other statutory provision which may affect the activities of 3Com’s employees at Customer’s premises and ensure that any authorized personnel of 3Com working on or near potentially hazardous equipment is accompanied by another person at all times while doing so. Limitations Technical Phone Support Unless optional 24x7 coverage is purchased, technical phone support is provided Monday - Friday, 8:00 AM to 5:00 PM, local time. For locations outside of the United States hours of coverage may vary. Advance Hardware Replacement Unless optional coverage is purchased, requests for advance replacement of hardware are available to Customers Monday - Friday, 8:00 AM - 5100 PM, local time. However, requests for next-business-day advance hardware replacement placed after 3:00 PM local time, may ship the following business day for second day delivery. For locations outside of the United States hours of coverage may vary. 3Com Service Agreement 05FebOl.doc - CW:MS Page8of19 Public holidays in each country where the services are rendered are excluded for standard hours of coverage. Hours outside the standard hours of coverage are to be excluded when determining the response time required of 3Com, unless optional 24x7~365 coverage has been purchased. 3Com does not guarantee the frequency or quantity of Software Updates for any given Software. 3Com may issue a Software Update that also requires a hardware upgrade in order to utilize new functionality of the Software. Any such hardware upgrade is not covered. Customer may purchase the hardware upgrade at the price set forth in the then-current 3Com Price List, less applicable discount (if any). All service variations may not be available in all locations. Availability of Software Updates may be restricted in some countries due to export or other regulations. This may occur where a Software Update contains third party code which has export restrictions to certain countries. Where export restrictions eccur the’software Update will not be supplied to the particular Site Location. All Software Updates provided pursuant to this Service Offering shall be governed in accordance with the terms and conditions of the Software license agreement, which accompanied the original Software licensed. Technical Support does not include step-by-step installation instructions. For products announced as obsolete by 3Com on March 20,200O (a complete list of these CoreBuilder” NetBuilder” and PathBuilder”l products is posted on the 3Com Web site at http://www.3com.com/products/discontinued/), sustaining engineering services in the form of capability to develop bug fixes, in response to customer requests for technical support, will not be available after May 31,200l. 3Com Service Agreement OSFebOl.doc - CW:MS Page 9 of 19 Expresssm Service Description Expres? Service entitles Customer to technical support for an unlimited number of incidents, advance hardware replacement and software updates for those products and to those sites listed on the Customer Information Document(s). The Service is provided for single site installations, multi-sites in the same country or over several country boundaries. Technical Support Customer is entitled to technical support for an unlimited number of incidents. Technical support will include assistance in the use of supported Equipment and Software by means of telephone technical support or via access to 3Com’s technical support web site. Such assistance will include identification of Equipment and/or Software problems and work-arounds when possible. Assistance may also include logging into Customer’s systems via modem for diagnosis of problems. Where technical support is provided, 3Com will provide quality technical support in accordance with generally recognized business practices and standards. Advance Hardware Replacement Customer is entitled to receive advance replacement of hardware Product prior to 3Com receiving the faulty item. Hardware will be shipped to arrive at the Customer site within the period of time as specified in the Welcome Letter. Within fifteen (15) calendar days of the issuance of a Return Material Authorization (RMA), Customer shall return the inoperable unit or subassembly to 3Com. In the event the unit or subassembly is not returned in the above period, or is returned in an unacceptable condition, as defined in Section 5 of the Terms and Conditions, Customer shall pay the list price per unit as stated in the then-current 3Com price list. Customer’s failure to pay the price or return Equipment promptly will result in the suspension of Services by 3Com. If, during any one (1) year period, more than fifteen percent (15%) of the units or subassemblies returned to 3Com for replacement are diagnosed as “No Trouble Found,” Customer may be charged a fee of five percent (5%) of the then-current list price of the actual unit or subsequent product (where the actual product is obsolete) for each unit or subassembly returned after the fifteen percent (15%) threshold has been reached, not including the unit whose return results in meeting the fifteen percent (15%) threshold. 3Com will provide written notification to Customer in the event it intends to apply the fee identified in this paragraph. Software Updates Customer is entitled to access all Software Updates (including related release notes) that are released for Products identified in the Customer Information Document. All Software provided pursuant to a Service Offering will be governed under the same terms and conditions as set forth in the license agreement accompanying the original Software licensed by the Customer. Customer has the right to duplicate both the Software and documentation for its own internal use, in quantities equal to the number of units of Equipment and/or Software specified in the Customer Information Document provided that all copyright, trademark, and other proprietary rights notices are also reproduced in the same form and manner as on the original media provided. Scorn Service Responsibilities Service Responsibilities at Service Start Date l Provide Customer with a contract number and unique password that enables access to a protected area of Scorn’s World Wide Web site. l Provide Customer with instructions on how to contact 3Com to obtain Services. Service Responsibility During the Service Period l Respond to Customer requests for advanced hardware replacement within the time period specified in the Welcome Letter. 3Com will deliver hardware to the Site Location provided on the Customer Information Document. All delivery costs are borne by 3Com. 3Com will provide a Return Material Authorization number (RMA) to allow the Customer to return the faulty product. l Respond to Customer requests for technical support within one (1) hour of the initial contact by Customer. Obligations of Customer l Unless instructed otherwise by 3Com, complete a Customer Information Document for each Site Location which requires Service. Notify 3Com when contact information is changed. l When a Software Update is desired, download such Software Update in accordance with instructions l When a hardware replacement is required, notify 3Com per the instructions provided in the 3Com Welcome Letter. l Return to 3Com the original defective equipment within ffieen (15) days from receipt of the replacement Equipment. l When technical support is required, notify 3Com per the instructions provided in the 3Com Welcome Letter. Limitations Technical Phone Support Unless optional 24x7 coverage is purchased, technical phone support is provided Monday - Friday, 8:00 AM to 500 PM, local time. For locations outside of the United States hours of coverage may vary. Advance Hardware Replacement Unless optional coverage is purchased, requests for advance replacement of hardware are available to Customers Monday - Friday, 8:00 AM - 5:00 PM, local time. However, requests for next-business-day advance hardware replacement placed after 3:00 PM local time, may ship the following business day for second day delivery. For locations outside of the United States hours of coverage may vary. Other Limitations Public holidays in each country where the services are rendered are excluded for standard hours of coverage. Hours outside the standard hours of coverage are to be excluded when determining the response time required of 3Com, unless optional 24x7~365 coverage has been purchased. 3Com does not guarantee the frequency or quantity of Software Updates for any given Software. 3Com may issue a Software Update that also requires a hardware upgrade in order to utilize new functionality of the Software. Any such hardware upgrade is not covered. Customer may purchase the hardware upgrade at the price set forth in the then-current 3Com Price List, less applicable discount (if any). All service variations may not be available in all locations. Availability of Software Updates may be restricted in some countries due to export or other regulations. This may occur where a Software Update contains third party code which has export restrictions to certain countries. Where export restrictions occur the Software Update will not be supplied to the particular Site Location. All Software Updates provided pursuant to this Service Offering shall be governed in accordance with the terms and conditions of the Software license agreement, which accompanied the original Software licensed. Technical Support does not include step-by-step installation instructions. For products announced as obsolete by 3Com on March 20,200O (a complete list of these CoreBuilder@ NetBuilder,@ and PathBuilder”l products is posted on the 3Com Web site at http://www.3com.com/products/discontinued/), sustaining engineering services in the form of capability to develop bug fixes, in response to customer requests for technical support, will not be available after May 31, 2001. 3Com Service Agreement OSFebOl.doc - CW:MS Page I1 of 19 Multi-Year Warranty Service Description Multi-Year Warranty Service entitles Customers to extend the return to factory repair warranty period for hardware Product. The Multi-Year Warranty has a two (2) year term beyond the warranty applicable to a covered product. During this time faulty products are returned to 3Com for repair or replacement. Products are returned to the Customer location within thirty (30) days of receipt by 3Com. 3Com Service Responsibilities Service Responsibility at Service Start Date l Provide Customer with a Welcome Letter with instructions on how to contact 3Com. Service Responsibility during the Service Period l Respond to Customer requests for Multi-Year Warranty repair service within the time period specified in the Welcome Letter. 3Com will deliver hardware to the Site Location provided on the Customer Information Document. All delivery costs are borne by 3Com. 3Com will provide a Return Material Authorization number (RMA) to allow the Customer to return the faulty product. Obligations of Customer l Unless instructed otherwise by BCom, complete a Customer Information Document for each Site Location which requires Service. Notify 3Com when contact information is changed. l When contracted repair is required, notify 3Com per the instructions provided in the 3Com Welcome Letter. l Obtain a Return Material Authorization (RMA) number from 3Com prior to shipping any products for repair. The faulty Product must be returned to an approved 3Com location. Term Multi-Year Warranty can be taken out either when purchasing 3Com Equipment or at any time during the standard product warranty period. The contract is available for a two (2) year term unless optional coverage is purchased. Optional coverage may vary by location. Limitations This service is available Monday - Friday, 8:00 AM to 5:00 PM, local time. For locations outside of the United States hours of coverage may vary. When deemed necessary by 3Com, a replacement unit may be returned in substitution of the original returned equipment to the site identified on the Customer Information Document. Public holidays in each country where the services are rendered are excluded for standard hours of coverage. Hours outside the standard hours of coverage are to be excluded when determining the response. For products announced as obsolete by 3Com on March 20, 2000 (a complete list of these CoreBuilder” NetBuilder,@and PathBuilderm products is posted on the 3Com Web site at http://www.3com.com/products/discontinued/), sustaining engineering services in the form of capability to develop bug fixes, in response to customer requests for technical support, will not be available after May 31,200l. 3 Corn Service Agreement OSFebOl. dot - C W:MS Page 12 of I9 Description Software Updates Service entitles Customers to access all Software Updates (including related release notes) that are released for the products listed on the Customer Information Document(s). The Service is provided for single site installations, multi-sites in the same country or over several country boundaries. Customer is entitled to access all Software Updates (including related release notes) that are released for products identified in the Customer Information Document. All Software provided pursuant to a Service Offering will be governed under the same terms and conditions as set forth in the license agreement accompanying the original Software licensed by the Customer. Customer has the right to duplicate both the Software and documentation for its own internal use, in quantities equal to the number of units of Equipment and/or Software specified in the Customer Information Document provided that all copyright, trademark, and other proprietary rights notices are also reproduced in the same form and manner as on the original media provided. 3Com Service Responsibilities l Provide Customer with a contract number and unique password that enables access to a protected area of 3Com’s World Wide Web site. Obligations of Customer l Unless instructed otherwise by 3Com, complete a Customer Information Document for each Site Location which requires Service. l When a Software Update is desired, download such Software Update in accordance with instructions. Limitations Individual Software bug fixes that have not been incorporated into a Software Update are not a part of this Service. 3Com does not guarantee the frequency or quantity of Software Updates for any given Software. 3Com reserves the right to distribute Software Updates on any media type. 3Com may issue a Software Update that also requires a hardware upgrade in order to utilize new functionality of the Software. Any such hardware upgrade is not covered by the Software Update Service. Customer may purchase the hardware upgrade at the price set forth in the then-current 3Com Price List, less applicable discount (if any). Availability of Software Updates may be restricted in some countries due to export or other regulations. This may occur where a Software Update contains third party code which has export restrictions to certain countries. Where export restrictions occur the Software Update will not be supplied to the particular Site Location. All Software Updates provided pursuant to this Service Offering shall be governed in accordance with the terms and conditions of the Software license agreement which accompanied the original Software licensed. For products announced as obsolete by 3Com on March 20,200O (a complete list of these CoreBuilder,@ NetBuilder,@ and PathBuilder”l products is posted on the 3Com Web site at http://www.3com.comlproducts/discontinued/), sustaining engineering services in the form of capability to develop bug fixes, in response to customer requests for technical support, will not be available after May 31,200l. 3Com Service Agreement OSFebOl.doc - CW:MS Page 13 of 19 Advance Hardware Replacement Service Description Advance Hardware Replacement Service entitles Customers to receive advance replacement of hardware product prior to 3Com receiving the faulty item. Hardware will be shipped to arrive at the Customer site the next business day. Requests received after the cut off time (see Limitations) ship the following business day for second day delivery. Within fifteen (15) calendar days of the issuance of a Return Material Authorization (RMA), Customer shall return the inoperable unit or subassembly to 3Com. In the event the unit or subassembly is not returned in the above period, or is returned in an unacceptable condition, as defined in Section 5 of the Terms and Conditions, Customer shall pay the list price per unit as stated in the then-current 3Com price list. Customer’s failure to pay the price or return Equipment promptly will result in the suspension of Services by 3Com. If, during any one (1) year period, more than fifteen percent (15%) of the units or subassemblies returned to 3Com for replacement are diagnosed as “No Trouble Found,” Customer may be charged a fee of five percent (5%) of the then-current list price of the actual unit or subsequent product (where the actual product is obsolete) for each unit or subassembly returned after the fifteen percent (15%) threshold has been reached, not including the unit whose return results in meeting the fifteen percent (15%) threshold. 3Com will provide written notification to Customer in the event it intends to apply the fee identified in this paragraph. 3Com Service Responsibilities Service Responsibility at Service Start Date l Provide Customer with a Welcome Letter with instructions on how to contact 3Com to obtain Advance Hardware Replacement. Service Responsibility During the Service Period l Respond to Customer requests for advanced hardware replacement within the time period specified in the Welcome Letter. 3Com will deliver hardware to the Site Location provided on the Customer Information Document. All delivery costs are borne by 3Com. 3Com will provide a Return Material Authorization number (RMA) to allow the Customer to return the faulty product. Obligations of Customer l Unless instructed otherwise by 3Com, complete a Customer Information Document for each Site Location which requires Service. Notify 3Com when contact information is changed. l When a hardware replacement is required, notify 3Com per the instructions provided in the Scorn Welcome Letter. l Return to 3Com the original defective equipment within fifteen days from receipt of the replacement Equipment. Limitations l Unless optional coverage is purchased, requests for advance replacement of hardware are available to Customers Monday - Friday, 8:00 AM - 500 PM, local time. However, requests for next-business-day advance hardware replacement placed after 3:00 PM local time, may ship the following business day for second day delivery. For locations outside of the United States hours of coverage may vary. l Public holidays in each country where the services are rendered are excluded for standard hours of coverage time required of 3Com. l Not all delivery times are available for all Customer locations. l For products announced as obsolete by 3Com on March 20,200O (a complete list of these CoreBuilder’ NetBuilder@ and PathBuilder- products is posted on the 3Com Web site at http://www.3com.com/products/discontinued/), sustaining engineering services in the form of capability to develop bug fixes, in response to customer requests for technical support, will not be available after May31,2001. 3Com Service Agreement OSFebOl.doc - CW:MS Page 14 of 19 NBX-Guardian Service Description NBX-GuardianSm Service entitles Customer to technical support for an unlimited number of incidents, on-site support, advance hardware replacement and software updates for those products and to those sites listed on the Customer Information Document(s). The Service is provided for single site installations, multi-sites in the same country or over several country boundaries. Technical Support Customer is entitled to technical support for an unlimited number of incidents. Technical support will include assistance in the use of supported Equipment and Software by means of telephone technical support or via access to 3Com’s technical support web site. Such assistance will include identification of Equipment and/or Software problems and work-arounds when possible. Where technical support is provided, 3Com will provide quality technical support in accordance with generally recognized business practices and standards. Advance Hardware Replacement Customer is entitled to receive advance replacement of hardware Product prior to 3Com receiving the faulty item. Hardware will be shipped to arrive at the Customer site within the period of time as specified in the Welcome Letter. Within fifteen (15) calendar days of the issuance of a Return Material Authorization (RMA), Customer shall return the inoperable unit or subassembly to 3Com. In the event the unit or subassembly is not returned in the above period, or is returned in an unacceptable condition, as defined in Section 5 of the Terms and Conditions, Customer shall pay the list price per unit as stated in the then-current 3Com price list. Customer’s failure to pay the price or return Equipment promptly will result in the suspension of Services by 3Com. If, during any one (1) year period, more than fifteen percent (15%) of the units or subassemblies returned to 3Com for replacement are diagnosed as “No Trouble Found,” Customer may be charged a fee of five percent (5%) of the then-current list price of the actual unit or subsequent product (where the actual product is obsolete) for each unit or subassembly returned after the fifteen percent (15%) threshold has been reached, not including the unit whose return results in meeting the fifteen percent (15%) threshold. 3Com will provide written notification to Customer in the event it intends to apply the fee identified in this paragraph. On-site Support Customer is entitled to the following level of on-site support: When a Customer reported Product failure cannot be resolved by utilizing technical support, and web support tools, 3Com will dispatch an engineer to arrive on-site within the period on time as specified in the Welcome Letter when the following conditions are present: - NBX server is not operational - 20% or more of the phones are not operational - A trunk is not operational due to equipment failure When any of the conditions below are present, 3Com will dispatch an engineer to arrive on-site by the end of the next business day independent of the period of time as specified in the Welcome Letter: - Less than 20% of the phones are not operational. - A problem with a single phone cannot be diagnosed and fixed remotely over the phone or by using web support tools. - When a replacement phone cannot be installed with remote technical phone support assistance. 3Com personnel or 3Com’s third party agents shall comply with all Customer or Government imposed security requirements while on Customer premises. However, 3Com shall not be responsible for delays in performing Services due to Customer’s failure to provide 3Com personnel with access to Customer’s facilities or due to such security requirements. 3Com may charge Customer a service fee of Five Hundred US Dollars ($500 US) if 3Com responds to Customer’s request to be on-site and a knowledgeable employee of Customer fails to appear at the 3Com Service Agreement 05FebOi.doc - CW:MS Page 15 of 19 designated time and place. 3Com reserves the right to use third party service providers to deliver on-site support. 3Com further reserves the right to charge Customer’on a time and materials basis if, upon visiting a Customer site, 3Com demonstrates that the reported problem is not being caused by a malfunctioning 3Com product. Support of Service Provider Issues 3Com personnel or 3Com’s third party agents shall assist the customer to solve problems that are related to the customer’s telecommunication providers when the 3Com system is not operational due to non3Com product issues. Such assistance is limited to trouble shooting 3Com products to help identify the source of such trouble including testing of connections as necessary, but does not include problem resolution on such non3Com products unless 3Com, in its sole discretion, decides to do so. Software Updates Customer is entitled to access all Maintenance and Minor Software Updates (including related release notes) that are released for Products identified in the Customer Information Document. Customer may purchase Major Software Updates at the published list price. When an upgraded version of Software is purchased the new software will be supported through the end data of the contract specified on the Welcome Letter. All Software provided pursuant to a Service Offering will be governed under the same terms and conditions as set forth in the license agreement accompanying the original Software licensed by the Customer. Customer has the right to duplicate both the Software and documentation for its own internal use, in quantities equal to the number of units of Equipment and/or Software specified in the Customer Information Document provided that all copyright, trademark, and other proprietary rights notices are also reproduced in the same form and manner as on the original media provided. This Guardian Service Offering does not provide free on-site installation and configuration of the software upgrade by a 3Com engineer. Customer may request and purchase such on-site installation at an additional fee. 3Com Service Responsibilities Service Responsibilities at Service Start Date l Provide Customer with a contract number and unique password that enables access to a protected area of 3Com’s World Wide Web site. l Provide Customer with instructions on how to contact 3Com to obtain Services. Service Responsibility During the Service Period l Respond to Customer requests for advanced hardware replacement within the time period specified in the Welcome Letter. 3Com will deliver hardware to the Site Location provided on the Customer Information Document. All delivery costs are borne by 3Com. 3Com will provide a Return Material Authorization number (RMA) to allow the Customer to return the faulty product. l Respond to Customer requests for technical support within one (1) hour of the initial contact by Customer. l Dispatch a field engineer to arrive at Customer site within the time period specified in the Welcome Letter. The time period begins when 3Com and Customer concludes that an on-site engineer is required. Obligations of Customer l Customer must provide 3Com’s technical support organization with remote access to Customers network, enabling 3Com to perform remote diagnostics, remote trouble shooting, and to make changes to the software configuration remotely, prior to 3Com dispatching a support technician for on-site support. l Unless instructed otherwise by BCom, complete a Customer Information Document for each Site Location, which requires Service. Notify 3Com when contact information is changed. l When a Software Update is desired, download such Software Update in accordance with instructions l When a hardware replacement is required, notify 3Com per the instructions provided in the 3Com Welcome Letter. l Return to 3Com the original defective equipment within fifteen (15) days from receipt of the replacement Equipment in order to avoid cost of such Equipment as outlined in the above section titled “Advanced Hardware Replacement”. l When technical support is required, notify 3Com per the instructions provided in the 3Com Welcome Letter. 3Com Service Agreement OSFebOl.doc - CW:MS Page 160119 l When on-site support is required, provide, free of charge, working space, including heat, light, ventilation, electrical current, telephone with a cord length to reach computer maintenance and/or operator panel, an analog telephone line or some other means to access the public internet and electrical outlets for access to the Equipment as this will enable 3Com to carry out its obligations under this Agreement, comply with the duties imposed on Customer by any applicable health and safety legislation and any other statutory provision which may affect the activities of 3Com’s employees at Customer’s premises and ensure that any authorized personnel of 3Com working on or near potentially hazardous equipment is accompanied by another person at all times while doing so. Limitations Technical Phone Support Unless optional 24x7 coverage is purchased, technical phone support is provided Monday - Friday, 8:00 AM to 500 PM, local time. For locations outside of the United States hours of coverage may vary. Advance Hardware Replacement Unless optional coverage is purchased, requests for advance replacement of hardware are available to Customers Monday - Friday, 8:00 AM - 500 PM, local time. However, requests for next-business-day advance hardware replacement placed after 3:00 PM local time, may ship the following business day for second day delivery. For locations outside of the United States hours of coverage may vary. All NBX phone handset hardware will be replaced by the next business day Monday - Friday, 8:00 AM - 500 PM, local time. Other Limitations Public holidays in each country where the services are rendered are excluded for standard hours of coverage. Hours outside the standard hours of coverage are to be excluded when determining the response time required of 3Com, unless optional 24x7~385 coverage has been purchased. 3Com does not guarantee the frequency or quantity of Software Updates for any given Software. 3Com may issue a Software Update that also requires a hardware upgrade in order to utilize new functionality of the Software. Any such hardware upgrade and installation of the hardware upgrade is not covered. Customer may purchase the hardware upgrade and installation at the price set forth in the then current 3Com price list, less applicable discount (if any). All service variations may not be available in all locations. Availability of Software Updates may be restricted in some countries due to export or other regulations. This may occur where a Software Update contains third party code, which has export restrictions to certain countries. Where export restrictions occur the Software Update will not be supplied to the particular Site Location. All Software Updates provided pursuant to this Service Offering shall be governed in accordance with the terms and conditions of the Software license agreement, which accompanied the original Software licensed. Technical Support does not include step-by-step installation instructions. 3Com Service Agreement OSFebOl.doc - CW:MS Page 17of 19 NBX - Express Service Description NBX-Expressm Service entitles Customer to technical support for an unlimited number of incidents, advance hardware replacement and software updates for those products and to those sites listed on the Customer Information Document(s). The Service is provided for single site installations, multi-sites in the same country or over several country boundaries. Technical Support Customer is entitled to technical support for an unlimited number of incidents. Technical support will include assistance in the use of supported Equipment and Software by means of telephone technical support or via access to 3Com’s technical support web site. Such assistance will include identification of Equipment and/or Software problems and work-arounds when possible. Assistance may also include logging into Customer’s systems via modem for diagnosis of problems. Where technical support is provided, 3Com will provide quality technical support in accordance with generally recognized business practices and standards. Advance Hardware Replacement Customer is entitled to receive advance replacement of hardware Product prior to 3Com receiving the faulty item. Hardware will be shipped to arrive at the Customer site within the period of time as specified in the Welcome Letter. Within fifteen (15) calendar days of the issuance of a Return Material Authorization (RMA), Customer shall return the inoperable unit or subassembly to 3Com. In the event the unit or subassembly is not returned in the above period, or is returned in an unacceptable condition, as defined in Section 5 of the Terms and Conditions, Customer shall pay the list price per unit as stated in the then-current 3Com price list. Customer’s failure to pay the price or return Equipment promptly will result in the suspension of Services by Scorn. If, during any one (1) year period, more than fifteen percent (15%) of the units or subassemblies returned to 3Com for replacement are diagnosed as “No Trouble Found,” Customer may be charged a fee of five percent (5%) of the then-current list price of the actual unit or subsequent product (where the actual product is obsolete) for each unit or subassembly returned after the fifteen percent (15%) threshold has been reached, not including the unit whose return results in meeting the fifteen percent (15%) threshold. 3Com will provide written notification to Customer in the event it intends to apply the fee identified in this paragraph. Support of Service Provider Issues 3Com personnel or 3Com’s third party agents shall assist the customer to solve problems that are related to the customer’s telecommunication providers when the 3Com system is not operational due to non-3Com product issues. Such assistance is limited to trouble shooting 3Com products to help identify the source of such trouble including testing of connections as necessary, but does not include problem resolution on such non3Com products unless 3Com, in its sole discretion, decides to do so. Software Updates Customer is entitled to access all Maintenance and Minor Software Updates (including related release notes) that are released for Products identified in the Customer Information Document. Customer may purchase Major Software Updates at the published list price. When an upgraded version of Software is purchased the new software will be supported through the end data of the contract specified on the Welcome Letter. All Software provided pursuant to a Service Offering will be governed under the same terms and conditions as set forth in the license agreement accompanying the original Software licensed by the Customer. Customer has the right to duplicate both the Software and documentation for its own internal use, in quantities equal to the number of units of Equipment and/or Software specified in the Customer Information Document provided that all copyright, trademark, and other proprietary rights notices are also reproduced in the same form and manner as on the original media provided. 3Com Service Agreement OSFebOl.doc - CW:MS Page i8 of 19 3Com Service Responsibilities Service Responsibilities at Service Start Date l Provide Customer with a contract number and unique password that enables access to a protected area of 3Com’s World Wide Web site. l Provide Customer with instructions on how to contact 3Com to obtain Services. Service Responsibility During the Service Period l Respond to Customer requests for advanced hardware replacement within the time period specified in the Welcome Letter. 3Com will deliver hardware to the Site Location provided on the Customer Information Document. All delivery costs are borne by 3Com. 3Com will provide a Return Material Authorization number (RMA) to allow the Customer to return the faulty product. l Respond to Customer requests for technical support within one (1) hour of the initial contact by Customer. Obligations of Customer l Customer must provide 3Com’s technical support organization with remote access to Customer’s network, enabling 3Com to perform remote diagnostics, remote trouble shooting, and to make changes to the software configuration remotely, prior to 3Com dispatching a support technician for on-site support. . Unless instructed otherwise by 3Com, complete a Customer Information Document for each Site Location which requires Service. Notify 3Com when contact information is changed. . When a Software Update is desired, download such Software Update in accordance with instructions l When a hardware replacement is required, notify 3Com per the instructions provided in the 3Com Welcome Letter. . Return to 3Com the original defective equipment within fifteen (15) days from receipt of the replacement Equipment. . When technical support is required, notify 3Com per the instructions provided in the 3Com Welcome Letter. Limitations Technical Phone Sutx~ort Unless optional 24x7 coverage is purchased, technical phone support is provided Monday - Friday, 8:00 AM to 5:00 PM, local time. For locations outside of the United States hours of coverage may vary. Advance Hardware ReDlacement Unless optional coverage is purchased, requests for advance replacement of hardware are available to Customers Monday - Friday, 8:00 AM - 500 PM, local time. However, requests for next-business-day advance hardware replacement placed after 3:00 PM local time, may ship the following business day for second day delivery. For locations outside of the United States hours of coverage may vary. All NBX phone handset hardware will be replaced by the next business day Monday - Friday, 8:00 AM - 5:00 PM, local time. Other Limitations l Public holidays in each country where the services are rendered are excluded for standard hours of coverage. Hours outside the standard hours of coverage are to be excluded when determining the response time required of 3Com, unless optional 24x7~365 coverage has been purchased. l 3Com does not guarantee the frequency or quantity of Software Updates for any given Software. l 3Com may issue a Software Update that also requires a hardware upgrade in order to utilize new functionality of the Software. Any such hardware upgrade is not covered. Customer may purchase the hardware upgrade at the price set forth in the then-current 3Com Price List, less applicable discount (if any). l All service variations may not be available in all locations. Availability of Software Updates may be restricted in some countries due to export or other regulations. This may occur where a Software Update contains third party code which has export restrictions to certain countries. Where export restrictions occur the Software Update will not be supplied to the particular Site Location. l All Software Updates provided pursuant to this Service Offering shall be governed in accordance with the terms and conditions of the Software license agreement, which accompanied the original Software licensed. l Technical Support does not include step-by-step installation instructions. 3Com Service Agreement OSFebOl.doc - CW:MS Page I9 of 19