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QWEST - CONTRACT - RFP - P871 TELEPHONE EQUIPMENT MAINTENANCE SERVICES (2)
GREEME This Agreement is made as of June 23, 2003 ("Effective Dane" by and su suspend all or between Qwest Interprise America, Inc. ("Qwest") and The City of Fort Collins ("Customer"). Capitalized terms used herein are defined herein. any part of the Products or Services, and/or (y) terminate this Agreement and/or any Purchase Order: (i) for Cause; or 1. Products and Services General Terms and Conditions. (ii) upon written notice, if Customer becomes or is declared insolvent or 1.1 Agreement and Purchase Orders. This Agreement sets forth the bankrupt or is the subject of any proceedings related to its liquidation, insolvency or for the appointment of a receiver terms and conditions under which customer premises equipment ("CPE") or similar officer for it. Customer may terminate a Purchase Order for Cause. "Cause" and/or software license offerings (collectively, "Products") and CPE maintenance and installation services ("Services"), means the failure of the other party to perform a material obligation under this provided by Qwest and/or through its applicable affiliates, subcontractors, and Agreement which failure is not remedied, if curable: (a) in the event of vendors may be purchased by Customer. Purchase Order refers to a City of Fort a payment default by Customer, upon five (5) calendar days written notice, or (b) in the event of any other default, Collins purchase order. 1.2 Security Interest. Until Customer pays Qwest in full for Products, general upon thirty (30) calendar days written notice (unless a shorter notice period is any Customer grants to Qwest a continuing security interest in such Products, including expressly set forth in this Agreement, in which case the shorter notice period shall apply). If Customer or Qwest terminates this Agreement additions, replacements and proceeds ("Collateral"), and authorizes Qwest to file a financing statement or any Purchase Orders, then Customer shall remain liable for charges with or without Customer's signature. Customer's exact legal name and organizational identification accrued but unpaid as of the termination date. 3.2 Termination Charges number are as set forth on the signature page hereof. Customer shall not transfer the Collateral or change its name or — CPE Maintenance Services. If, prior to the conclusion of their term, any Purchase Orders accepted hereunder by organizational status except upon at least thirty (30) days prior written notice to Qwest. 1.3 Qwest are terminated either: (a) by Customer for any reason other than Cause, or (b) by Qwest pursuant to Section 3.1(a) or Customer Delivery. Qwest will make reasonable efforts to provide the Product and, when applicable, the (b), shall pay all accrued and unpaid charges for Service provided through labor necessary to complete Qwest's obligations by the specified In -Service Date or delivery date, the effective date of such termination. 4. whichever is applicable. "In -Service Date" means the date on which Qwest has materially performed its obligations with respect to Payment. 4.1 Pricing and Payment. The charges associated with a Product or a particular Purchase Order or Customer receives the use of the Product. Service shall be set forth in a City of Fort Collins Purchase Order 1.4 Acceptance. Customer shall notify Qwest in writing of any portion of a Product which is unacceptable. Failure accepted by Qwest. Charges shall be due and payable upon Customer's receipt of the invoice. Any amount not paid within thirty to notify Qwest within ten (10) days of the In -Service Date or actual delivery date, whichever is (30) calendar days of the invoice date ("Due Date") shall be considered applicable, shall constitute final acceptance. Any Product installed by Qwest past due and subject to interest at the lesser of: (a) the rate of one percent (1 %) per month; or (b) the highest rate by is considered acceptable if it is installed and operates materially in accordance with the manufacturer's specifications. Qwest permitted applicable law. The provision of Products and Services is further conditioned upon shall have the right to correct any portion of the Product which has been rejected. Any Customer's creditworthiness and payment history. Qwest may modify payment terms or require other reasonable assurance portion which is not rejected and which is functionally divisible may be invoiced separately. Moves and changes of payment (e.g., a deposit or other acceptable form of security) if it reasonably are considered accepted when the described work is materially completed. Product returns shall only be deems itself insecure with respect to Customer's ability to pay. 4.2 Title made in accordance with Qwest's Return Material Authorization ("RMA") Policy which is attached hereto (the latest version is and Invoicing. Ownership and all risk of loss, except for damage caused by Qwest, its agents or subcontractors, of Products of which posted at http://gwest.com/legal/cpe.html). Customer has obtained, reviewed, will transfer to Customer upon their delivery to Customer. Qwest will invoice Customer for such Products delivery understands, and will be subject to, such RMA Policy and it shall be considered part of this Agreement. upon confirmation. Qwest will invoice Customer for any installation charges upon completion of 1.5 Software. Software will be licensed or sublicensed to Customer according to the licensing agreement accompanying such installation. 5.0 CUSTOMER SHALL BE FULLY RESPONSIBLE, TO THE such software, which may include a "shrinkwrap" or "clickwrap" license. If the software is not EXTENT ALLOWED BY LAW, FOR ANY FINES OR OTHER LIABILITY ARISING FROM CUSTOMER'S accompanied by a license, Qwest grants a personal, nonexclusive, limited sublicense to Customer to use copies of the software in FAILURE TO INFORM QWEST OF HAZARDOUS SUBSTANCES (PROVIDED, HOWEVER, object code form only. The license is effective upon delivery for drop -ships or upon THAT NOTHING HEREIN SHALL BE CONSTRUED AS A WAIVER OF GOVERNMENTAL IMMUNITIES PROVIDED BY installation, and extends only to Customer's own use of such software and only on or with the designated Product. Software LAW). 6.0 Fraudulent Use. Qwest may provide information relative to must be held in confidence and may not be reproduced unless specifically authorized by equipment operation and features, and recommendations for protecting the equipment against toll fraud the software licensor. Qwest warrants and represents that it has the right to license and unauthorized access, however, Customer is solely responsible for the or sublicense to Customer any such software, and will indemnify, defend and hold harmless Customer with respect to security of its own equipment and services. Qwest and its affiliates and subcontractors any claim of infringement arising from Qwest's unauthorized use or transfer of such are not responsible for damages relating to unauthorized charges, unauthorized software. access, or other misuse of Customer's equipment or 1.6 Trade -In. If Customer trades in any equipment through Qwest services. 7.0 Warranties. pursuant to any CPE provider terms and conditions, Customer shall indemnify and hold Qwest harmless from any liabilities, including 7.1 Product Warranties. Unless expressly stated herein, Qwest: (a) is any charges imposed on Qwest, arising from Customer's failure to comply not a manufacturer of any Product; (b) is not a party to any agreement between Customer and a CPE for with such terms and conditions. 2. Term. This Agreement shall commence on the Effective Date, provider services provided directly by the CPE provider to Customer e. tnbycor and and continue until terminated expressly by a party in accordance with Section 3. Termination warranty services); and (c) shall not be bound fornded any representation, warranty, or promise made by a CPE provider. Qwest shall not affect obligations under Purchase Orders accepted prior to the effective date of termination, disclaims any liability for loss, damage, or injury to any party as a and this Agreement shall remain in effect as to such obligations in the event it result of any defects, latent or otherwise, in any Product. Qwest shall pass -through would otherwise have terminated. 3. Termination. and assign to Customer all applicable warranties provided by the manufacturer or CPE provider of the applicable 3.1 General. Notwithstanding any other provision of this Agreement, Product to the extent that such manufacturer or CPE provider permits such pass -through and assignment. Any this Agreement may terminate for convenience if either party provides 30 day written notification of its intent to terminate this Agreement costs of such assignment shall be borne by Customer. Accordingly, all Products purchased from and if the other party consents to termination. Qwest may (x) immediately Qwest, including any Product which is a part of a system previously purchased from and installed by Qwest which is still © 2003 Qwest Interprise America, Inc. Page under warranty, 1 OMR# 81246 Confidential Version: 2-26-02 (CPE GEN' are subject tD the terms and conditions set forth in the manufacturer's confidentiality and who discloses such information in good faith. For or CPE provider's warranty, end -user license or agreement applicable purposes of this Section, Confidential Information shall include, but to such Product, with no warranty of any kind from Qwest. not be limited to, the terms (including pricing) and existence of this Implementation of any Product warranty is solely the responsibility of Agreement; however, provided, that either party may disclose the Customer and any Qwest support of such warranty will be provided at the discretion of Qwest. existence of this Agreement (but none of its terms) as may be 7.2 Disclaimer of Warranties. EXCEPT AS SPECIFICALLY SET FORTH reasonably necessary for such party to conduct its business. Each party will take reasonable HEREIN, THE PRODUCTS AND SERVICES PROVIDED BY QWEST HEREUNDER ARE PROVIDED WITHOUT WARRANTIES precautions to protect the other party's Confidential Information, using at least the same standard of care as it OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT uses to maintain the confidentiality of its own confidential information. The receiving party may disclose Confidential LIMITED TO, WARRANTIES OF TITLE, NONINFRINGEMENT, MERCHANTABILITY, OR FITNESS FOR Information if required by a governmental agency, by operation of law, or if necessary in any A PARTICULAR PURPOSE. NO ADVICE OR INFORMATION GIVEN BY QWEST, ITS proceeding to establish rights or obligations under this Agreement, AFFILIATES, OR ITS CONTRACTORS, OR THEIR RESPECTIVE provided that the receiving party gives the disclosing party reasonable EMPLOYEES SHALL CREATE ANY WARRANTY. Qwest is not prior written notice sufficient to permit the disclosing party an opportunity to contest such disclosure. responsible for any Product defects or damages resulting from mishandling, abuse, misuse, accident, electrical 10.0 Publicity. Neither party shall, without the prior written consent of power surges or current fluctuations, Force Majeure Event (defined in Section 13), the other party: (a) issue any press release or other public announcement improper storage or operation, including use in conjunction with equipment regarding this Agreement or any relation between Customer and Qwest; or (b) use the electrically or mechanically incompatible with or of inferior quality to the supplied equipment name, trademarks or other proprietary identifying symbol of the other party or its affiliates. Such or failure to maintain the environmental conditions specified by the manufacturer or licensor. 8.0 Limitation consent by Qwest may be given only by the Executive Vice President of Corporate Communications or his or her designee. of Liability. EXCEPT FOR CUSTOMER'S PAYMENT Any purported consent by AND OTHER OBLIGATIONS EXPRESSLY SET FORTH IN THIS any other person, including any Qwest sales or customer AGREEMENT, NEITHER PARTY, ITS AFFILIATES OR CONTRACTORS SHALL BE LIABLE service representative, is void and of no effect. 11.0 Notices. Except as otherwise provided herein, all required FOR ANY INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE OR CONSEQUENTIAL notices shall be in writing, transmitted to the parties' addresses specified below, DAMAGES, OR FOR ANY LOST OR IMPUTED PROFITS OR REVENUES OR LOST DATA, OR COSTS or such other addresses as may be specified by written notice, and will be considered given either: (a) when delivered OF COVER ARISING FROM OR RELATED TO THE PRODUCTS OR SERVICES OR EITHER in person to the recipient named on the signature page; (b) when deposited in either registered or PARTY'S PERFORMANCE OR NONPERFORMANCE UNDER THIS AGREEMENT, REGARDLESS OF certified U.S. Mail, return receipt requested, postage prepaid; or (c) when delivered to an overnight THE LEGAL THEORY UNDER WHICH SUCH LIABILITY IS ASSERTED AND REGARDLESS courier service. All written notices required under this Agreement shall be sent to the following: OF WHETHER A PARTY HAS BEEN ADVISED OF To THE POSSIBILITY OF ANY SUCH LIABILITY, LOSS OR DAMAGE. Customer: Jeri Mael, Project Manager QWEST'S TOTAL AGGREGATE LIABILITY TO CUSTOMER Fort Collins CITEL Division ARISING FROM THIS AGREEMENT SHALL IN NO EVENT EXCEED P.00ity Box ox 580 CUSTOMER'S PROVEN DIRECT DAMAGES, NOT TO EXCEED (A) F Fort Fort Collins, CO 80522 FOR CLAIMS ARISING OUT OF CPE MAINTENANCE SERVICE, ONE MONTH'S CPE MAINTENANCE SERVICE CHARGE FOR THE AFFECTED COMPONENT, OR (B) FOR ANY OTHER CLAIMS, TEN PERCENT (10%) OF THE PRODUCTS/MATERIALS CHARGE To Qwest: Interprise America, Inc. SET FORTH IN THE PURCHASE ORDER RELATING TO THE 1801 California Street, Suite 3800 AFFECTED PRODUCT; PROVIDED, HOWEVER, THAT NOTHING D en Denver, Colorado 895-6 HEREIN SHALL RELIEVE ANY PARTY FROM LIABILITY FOR Facsimile #: (303) 25-69 PERSONAL INJURIES, DEATH OR DAMAGE TO PROPERTY CAUSED BY THAT PARTY OR BY ITS EMPLOYEES, AGENTS Attention: Legal Department nt Dispute Resolution. Any dispute arising out of, relating OR SUBCONTRACTORS ACTING WITHIN THE SCOPE OF THEIR this this Agreement which cannot resolved by the parties will first be s be AUTHORITY. is submitted to non -binding mediation, which will be conducted by a 9.0 Confidentiality. Neither party shall, without the prior written p neutral mediator or mediators appointed by mutual agreement of the consent of the other party, disclose or use (except as expressly parties. if the dispute is not resolved by mediation within 90 days after permitted by, or required to achieve the purposes of, this Agreement, or as submission, or if the mediator(s) concludes at any time that resolution is unlikely to be achieved, then required by law, legal process or court order) the Confidential Information of the other party, during the Term and for one (1) nothing in this Section 12 shall prohibit either party from seeking appropriate relief by filing an action in the year following the expiration or termination hereof. Such consent by Qwest may be given only by Qwest's Corporate Legal Colorado District Court in and for the City and County of Denver, Colorado, which shall be the exclusive venue for actions arising Department and any purported consent by any other person, including any Qwest sales or under this Agreement. customer service representative, is void and of no effect. "Confidential 13.0 Force Majeure. Neither party will be liable for any delay or Information" means written or electronic information that is either: (a) failure to perform its obligations (other than a failure to comply with marked as confidential and/or proprietary, or which is accompanied by written notice that such information is payment obligations) hereunder if such delay or failure is caused by an unforeseeable event beyond the reasonable confidential/proprietary, or (b) not marked or accompanied by notice that it is confidential/proprietary, control of a party, including: act of God; fire; flood; earthquake; labor strike; sabotage; but which, if disclosed to any third party, could reasonably and fiber cut; embargoes; power failure, e.g., rolling blackouts, electrical foreseeably cause competitive harm to the owner of such information. surges or current fluctuations; lightning; suppliers' failures; acts or Confidential Information shall not include information which, as demonstrated omissions of telecommunications common carriers (whether or not affiliated with Qwest); by the receiving party: (a) is in the public domain or otherwise ceases to be secret or confidential through material shortages or unavailability or other delay in delivery not resulting from the responsible party's failure to no breach of this Agreement by the receiving party; (b) is already known or is timely place orders therefor; lack of or delay in transportation; developed independently by the receiving party independent of any government codes, ordinances, laws, rules, regulations or restrictions; disclosure by the disclosing party; or (c) is revealed to recipient by a third does war or civil disorder, or act of terrorism ("Force Majeure Event"). Provided, however, that in the event delay party who of a in excess of 30 days not thereby breach any obligation of which is caused by a force majeure, either party may terminate this © 2003 Qwest Interprise America, Inc. Page 2 OMR# 81246 Confidential Version: 2-26-02 (CPE GEN' agreement upon written notice to the other party, which notice shall be effective as of the date that the other party receives the notice. 14.0 Miscellaneous. Customer may not assign this Agreement or any of its rights or obligations hereunder without the prior written consent of Qwest, which consent will not be unreasonably withheld or delayed. The terms, representations, warranties and agreements of the parties set forth in this Agreement are not intended for, nor shall they be for the benefit of or enforceable by, any person or entity that is not a party to this Agreement, including, End Users. "End User(s)" mean Customer's end -users or customers or any other third parties who utilize or access the Products or Services. If any provision of this Agreement is held to be unenforceable, the unenforceable provision shall be construed as nearly as possible to reflect the original intent of the parties and the remaining provisions shall remain in full force and effect. Neither party's failure to insist upon strict performance of any provision of this Agreement shall be construed as a waiver of any of its rights hereunder. All terms and provisions of this Agreement which should by their nature survive the termination of this Agreement shall so survive. The terms of this Agreement and any riders shall prevail notwithstanding any conflicting terms of any Purchase Order or other form for purchase or payment submitted by Customer to Qwest. This Agreement shall be governed by the laws of the State of Colorado, without regard to its choice of law principles. The purchase of certain Products or Services may require the execution of one or more riders or other documents, which shall supplement the terms and conditions pursuant to which Qwest shall provide, and Customer shall purchase, the applicable Products and Services. This CPE Agreement, including the signature page and any exhibits, addenda, or riders hereto, and any City of Fort Collins Purchase Orders accepted hereunder constitute one and the same legally binding instrument and the entire agreement between Customer and Qwest with respect to the subject matter hereof, and supersede all prior offers, contracts, agreements, representations and understandings made to or with Customer by Qwest, whether oral or written, relating to the subject matter hereof. Nothing herein is intended to affect the validity of that City of Fort Collins Service Agreement by and between Qwest and the City of Fort Collins dated May 16, 2003. All amendments to this Agreement shall be in writing and signed by authorized representatives of the parties. Qwest may act in reliance upon any instruction, instrument, or signature reasonably believed by Qwest to be genuine. Qwest may assume that any employee of Customer who gives any written notice, Purchase Order, or other instruction in connection with this Agreement has the authority to do so. The parties hereby execute and authorize this Agreement as of the Effective Date. CUSTO THE CITY OF F T S By: �j Name: J mes . O'Neill II CPPO FNIGP Title: Direc of Purchasing and Risk Management Customer's Organizational Identification No.: © 2003 Qwest Interprise America, Inc. OMR# 81246 Page 3 Version: 2-26-02 Confidential (CPE GEN' Qwest.— Spirit of Service'" Return Material Authorization ("RMA") Policy This Return Material Authorization ("RMA") Policy governs the return of customer premise equipment ("CPE") to Qwest Interprise America Inc. ("Qwest"). Capitalized terms shall have the definitions assigned to them in the CPE Agreement between Qwest and the relevant customer ("Customer"), unless any such term is defined herein. 1. RMA Policy. CPE returns will be accepted only if the CPE is Dead on Arrival ("DOA") or for vendor error. 1.1 Return Accepted. (a) DOA, including CPE that fails within 2 weeks of the installation date. (b) Vendor Error. Supplier must receive return within 10 business days of the RMA request to avoid being billed for replacement part or to receive credit if part not replaced. 1.2 Return Not Accepted. (a) CPE will not be accepted for return if any of the following conditions apply: (i) RMA requested 30 days after Ship Date. 00 Return received 30 days after the RMA request approved. © 2003 Qvvest Interprise America, Inc. Page 1 OMR# 81246 Confidential Version: 3-4-03 (CPE RMA)