HomeMy WebLinkAbout2001-07-24; City Council; Resolution 2001-2261
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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.
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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
NOES: None.
ABSENT: None.
LORRAINE M. WOOD, City Clerk
(SEAL) /
THIS AGREEMENT is made and entered into as of the day of ;\?Y%
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. lntearation Services Local and wide area network integration on a
as needed basis;
2. Hardware Maintenance 3Com Corporation provided maintenance for
3Com network infrastructure equipment;
and;
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. Integration 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
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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 “Scorn Service Agreement Terms and Conditions”
which is attached hereto and incorporated herein by reference.
2. CITY OBLIGATIONS
A. Intearation 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. Integration 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”.
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4. FEES TO BE PAID TO CONTRACTOR
A. Intenration 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.
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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
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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.
IO. 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,
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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 sea., 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.
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(Initial) PxQ
The provisions of Carisbad 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.
BXm (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
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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 (1) copy of the plans for its records.
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17. REPRODUCTION RIGHTS
Contractor agrees that all
pursuant to this contract shall be
copyrights which arise from creation of the work
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
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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.
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rev. 4/24/00
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
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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.
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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
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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
For Contractor:
the foregoing are as follows:
For City: Title information Technology Director
Name Lee Rautenkranz
Address 1635 Faraday Ave
Carlsbad CA 92006
Title President, MTMnet Inc
Name Mike McGovern
Address 4370 La Jolla Village Drive, Suite 400
San Diego Ca 92122
Architect/License Number:
Architect/License Number:
20. 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.
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Executed by Contractor this 13 7
CONTRACTOR:
/yl/-MtiE% zw 6‘ (name of Contractor)’
By: .uz 2
(sign here)
day of JufdE I 2ou/ .
CITY OF CARLSBAD, a municipal corporation of the State of California
c
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. 4/24/00 -15 -
CALIFORNIA ALL-PURPOSE ACKNOWLEDGMENT
STATE OF CALIFORNIA
COUNTYOF SAN DIEGO I ss.
OnJune 27, 20'Ql" 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.
SignaturQqZ C . Gk
rrrrr~rfrfrrfrrrrrfrrrrrrrrrrrrrrr~rrrr OPTIONAL T[ITICI[IffITIIIIrTfTT[TTlTlTl[TTlTlll
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 Description of Attached Document
q Individual
Ix1 Corporate Officer
PRESIDENT/SECRETARY
Titles(s)
17 Partner(s) •l Limited
0 General
0 Attorney-in-Fact
0 Trustee(s)
0 Guardian/Conservator
q Other:
CONTRACTOR AGREEMENT
Title or Type of Document
2
Number of Pages
June 27. 2001 Date of Document
Signer Is Representing:
Name of Person(s) or Entity(ies)
T, INC.
Signer(s) Other Than Named Above
Gordon Peterson
City of Carlsbad
1635 Faraday Ave
Carlsbad, CA 92008-73 14
Exhibit “A”
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-509-1 52 1
EXHIBIT “B”
Terms: NET 30, FOB Origin, Quote valid for 15
June 30.2001 Citv of Carlsbad
3Com Guardian Maintenance 124x7~4)
2 3C6904 3Com NETBuilder II DPE 40 6 Slot EZ $ 3,189.OO $ 6,378.OO
6 3C6047A 3Com NETBuilder II HSS 4 Port WAN mod $ 945.00 $ 5670.00
1 3C6070 3Com NETBuilder II lOOBase-TX Module $ 615.00 $ 615.00
1 3C6021 3Com NETBuiMer II lOBase- AUI Module $ 248.00 $ 248.00
3 3c93012 SuperStack II 9300 Gigabit Swiich 12 SX $ 2,839.OO $ 7,917.oo
4 3C6040 3Com NETBuilder II HSS 3 Port V35 Module $ 725.00 $ 2,900.oo
1 3C6903A 3Com NETBuilder II DPE 40 4 Slot EZ $ 2,639.OO $ 2,639.OO
1 3C6060 3Com NETBuilder II MP 6 Port Ethernet Mod $ 1,759.OO $ I ,759.oo
1 3C8442 3Com SuperStack NETBuilder SI 442 $ 681.00 $ 681 .oo
1 3Cl6982 3Com SuperStack II 3300 FX Switch $ 1,286.OO $ 1,286.OO
1 3C8447 3Com SuperStack NETBuilder SI 447 $ 989.00 $ 989.00
3Com Exoress Maintenance (8x5xNBDI
3 3C16071 3Com SuperStack Advanced RPS Chassis $ 56.00 $ 168.00
12 3C16074 3Com SuperStack Advanced RPS Module $ 42.00 $ 504.00
24 3C39036 3Com SuperStack II 3900 36 Ports Switch, $ 315.00 $ 7560.00
2 3C16987A 3Com SuperStack 3 Swiich 3300SM
11 3C1698OA 3Com SuperStack II Switch 3300
2 3C16960 3Com SuperStack II Switch Matrix Module
2 3C16970 3Com Super-Stack II 1 OOBase-FX Module
2 3C16950 3Com Super-Stack It Switch 1100
9 3C8811 3Com OfficeConnect NETBuilder 111
3 3C8221 3Com NBRO Boudary Router
11 3C167OOA 3Com OfficeConnect Hub, 8 Port RJ45
1 3C16985B 3Com SuperStack 3 Switch 3300XM
165.00 $ 330.00
126.00 $ 1,386.OO
70.00 $ 140.00
42.00 $ 84.00
93.00 $ 186.00
63.00 $ 567.00
140.00 $ 420.00
5.00 $ 55.00
87.00 $ 87.00
Equipment Total $ 42,569.OO
Tax$ -
Shipping $ -
Total Cost $ 42,569.OO
Toll Free# 877-8-MTMnet 1 MTMnet 3Com Maint Quote exhibit B
Contract No.:
3com
Service Agreement Terms and Conditions
This 3Com Service Agreement Terms and Conditions (“Agreemenr) is entered into on this day of Date”) between City of Carlsbad (“Customer”) with its principle place of busin Carlsbad CA 92008 and 3Com Corporation (“3Com”) with its principal place of business l
Santa Clara, California 95052. a,
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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 Software 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
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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 fee for the Services as
described in the Service Offering(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 Services 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 thereafter 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 party 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 atter
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 Software.
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 Customer’s 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
patty contractor to provide Services to Customer
hereunder on behalf of 3Com. The appointment by 3Com
of such an authorized 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 carried out to the Equipment or the Software
by any person other than an authortzed 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 SoiIware 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 Customer’s 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
Setvice 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 05FebOI.doc - CW:MS Page 2 of I9
then-current 3Com list ptice, 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 income 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 Customer’s
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 sufficient to enable 3Com to support a claim
for income tax credits in the United States. Customer
further agrees to assist Scorn, 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 (18%) 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
CONFIDENTIAL lNFORMATlON
Either party may provide to the other certain information
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 unauthorized act or
failure to act on recipient’s 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 disclosure.
8.0 LIMITED WARRANTY
8.1 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 covering 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.
8.2 3Com’s sole obligation under this limited warranty shall
be, at 3&m’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.
8.3. Customer must notify 3Com of any defect, or present the
defective unit or subassembly to an authorized
representative of 3Com during the warranty period.
3Com Service Agreement OSFebOi.doc - CW:MS Page 3 of I9
8.4
8.5
8.6
Software Updates are covered by the limited warranty
accompanying those updates, if applicable, or the
warranty accompanying the original version of the
Software. All Software 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,
http:/hrvww.3com.wm/oroducts/vr2000.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. 3COM’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
PERSONS 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.
9.0
9.1
9.2
LIMITATION OF LIABILITY AND INDEMNlTY
Except as otherwtse 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
3Com Service Agreement OSFebOl.doc - CW:MS
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 software, firmware,
information or memory data of Customer contained in,
stored on, or integrated with any Equipment or Software
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
BCom, 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 BCom, 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 between the parties relating to this
Agreement. The Terms and Conditions of this Agreement
shall prevail notwithstanding any conflict with the terms
Page 4 of I9
and conditions of any purchase order or other instrument
submitted by Customer or 3Com.
10.3 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 duration and to the extent of such
preventing circumstance.
10.4 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.
10.5 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.
10.6 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.
10.7 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.
10.8 English Language. Customer agrees that the original of
this Agreement will be wtitten 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.
10.9 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
BCom, 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 relating to trying to resolve such Dispute
shall be treated as confidential information developed for
the purpose of settlement and shall be exempt from
discovery or production and shall not be admissible in
subsequent mediation, other alternate dispute resolution
(“AOR”), 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 JAMSIEndispute 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 attorneys fees,
witness fees, travel expenses, and preparation costs.
The parties may also agree to replace mediation 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 court 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, performance construction,
and interpretation of this Agreement shall be governed by
the laws of the State of California, excluding conflicts of
laws principles and excluding 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 0.5FebOl.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, m-export or import the Technical Data.
In addition to the above, Technical Data may not be used,
exported or re-exported (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 authorize 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
software delivered hereunder is delivered as Commercial
Computer Software as defined in DFARS 252.227-7014
(June 1995) or as a commercial 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 1967) 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 expiration 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
Title: SVP. General Counsel & Secretarv
Printed: RayVPatchett
Title: City Manaqer
Date: June 27.2001 Date:
3Com Service Agreement OSFebOl.doc - CW:MS Oeouty CiQ Attbmy’9
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 05FebOl.doc - CW:MS Page 7 of 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 Stati 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.
. Respond to Customer requests for technical support within one 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 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 Scorn 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 - 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.
3Com Service Agreement OSFebOI.doc - CW:MS Page 8 of I9
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 31,200l.
3Com Service Agreement OSFebOl.doc - CW:MS Page 9of 19
Description
Express”l 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 Scorn. 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.
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.
3Com Service Agreement 05FebOl.doc - CW:‘:MS Page IO of 19
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.
a 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
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 - 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.
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 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,
2001.
3Com Service Agreement 05FebOI.doc - CW:MS Page 11 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 3Com, 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 500 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.
3Com Service Agreement 05FebOI.doc - CW:A4S Page 12 of 19
Software Updates Service
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” 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 05FebOl.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 3Com 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 - 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.
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, 2000 (a complete list of these CoreBuilder’
NetBuilder@ and PathBuilderN products is posted on the 3Com Web site at
http:Iwww.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 OSFebOI.doc - CW:MS Page 14 of 19
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 05FebOl.doc - CAIUS Page I5 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, Scorn 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 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. 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 Duting 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 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.
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 05FebOl.doc - CW:MS Page 16 of 19
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 intemet 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 - 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.
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
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 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 05FebOl.doc - CW:MS Page17of19
NBX - Express Service
Description
NBX-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.
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 05FebOl.doc - CW:MS Page I8 of I9
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. Scorn 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 SoftwareUpdate is desired, download such Software Update in accordance with instructions . 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.
l When technical support is required, notify 3Com per the instructions provided in the 3Com Welcome Letter.
Limitations Technical Phone Suo~ort 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 Reolacement
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
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.
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