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HomeMy WebLinkAboutAgenda Report - April 17, 2019 C-11TM CITY OF LODI COUNCIL COMMUNICATION AGENDA ITEM c.I1 AGENDA TITLE: Adopt Resolution Authorizing City Manager to Execute a Service Contract with ConvergeOne of Bloomington, Minnesota for the Support of the City's Phone System and Voicemail Systems (not to exceed $32,969.30), and Rescind Resolution No. 2019-29 Authorizing City Manager to Execute a Professional Services Agreement with Advantel Networks, of San Jose MEETING DATE: April 17, 2019 PREPARED BY: Information Technology Manager RECOMMENDED ACTION: Adopt resolution authorizing City Manager to execute a Service Contract with ConvergeOne of Bloomington, Minnesota for the support of the City's phone system and voicemail systems, in an amount not to exceed $32,969.30), and rescind Resolution No. 2019-29 authorizing City Manager to execute a Professional Services Agreement with Advantel Networks, of San Jose. BACKGROUND INFORMATION: The City currently uses an Avaya phone system for the operations of phone services throughout the City. The voicemail is a system by ESNA, a system different from the phone system. Both systems are maintained and supported by the third party vendor ConvergeOne, formally called Advantel. Avaya requires the City to enroll in Partner Assurance Support Services (PASS) for access by Avaya technical support in cases that ConvergeOne needs an Avaya factory -trained technician to help with advanced technical issues. This past January, the maintenance and support for the voicemail system expired as well as the Avaya PASS subscription. Staff needs to continue support until a new phone system is purchased and installed for the City. Staff requests an additional $4,000.00 for software changes to the system that are not covered under the maintenance agreement. These changes include licensing for new users on the phone system, changes to software programming of the voicemail system and technical support outside of normal business hours. ConvergeOne Support/Maintenance ESNA Support/Maintenance Avaya PASS subscription Time and Material support $14,740.00 $ 7,540.22 $ 6,689.08 $ 4,000.00 Total Contract: $32,969.30 APPROVED: Stephen Schwaba - City Manager Adopt Resolution Authorizing City Manager to Execute a Service Contract with ConvergeOne of Bloomington, Minnesota for the Support of the City's Phone System and Voicemail Systems (not to exceed $32,969.30), and Rescind Resolution No. 2019-29 Authorizing City Manager to Execute a Professional Services Agreement with Advantel Networks, of San Jose April 17, 2019 Page 2 of 2 FISCAL IMPACT: A functioning phone system is critical to City operations. This contract amendment combines two services provided by the same vendor under one contract. The contract is managed by the IT Division, which is approximately 50 percent funded by the General Fund. FUNDING AVAILABLE: 10095000.72202 04„ )(L -i, Andrew Keys ' Deputy City Manager E' Convergecjne Date: DATE SELLER: CONVERGEONE, INC. 10900 Nesbitt Avenue S Bloomington, MN 55437 Master Sales Agreement CUSTOMER: City of Lodi 221 W Pine Street Lodi, CA 95240 Agreement # This MASTER SALES AGREEMENT ("Agreement") is made and entered into as of the date indicated above ("Effective Date") by and between Seller and Customer. Seller and Customer are each a "Party" to this Agreement and may collectively be referred to herein as the "Parties." In consideration of the mutual undertakings herein contained, the Parties agree as follows: 1. Attachment A contains terms and provisions that are part of this Agreement and Attachment A is hereby herein incorporated by reference. 2. This Agreement shall apply to sales of the following to Customer: a) All hardware, third party software, and/or Seller software (collectively, "Products"); b) All installation services, professional services, and/or third party provided support services that are generally associated with the Products and sold to customers by Seller ("Professional Services"); c) All Seller -provided vendor management services, software release management services, remote monitoring services, troubleshooting services, and/or OnGuard Support Services (collectively, "Managed Services"): and/or d) All Seller -provided maintenance services ordered by Customer to maintain and service Supported Products (as hereinafter defined in Article IV of Attachment A) or Supported Systems (as hereinafter defined in Article IV of Attachment A) at Supported Sites (as hereinafter defined in Article IV of Attachment A) to ensure that they operate in conformance with their respective documentation and specifications ("Maintenance Services"). 3. Selier will provide the Products, Professional Services, Managed Services, and/or Maintenance Services to Customer as more fully described on a sates order {"Master Agreement Rider" or "Solution Quote" or "Maintenance Services Order Form") that references this Agreement and for which authorized representatives of each Party have signed the corresponding document summarizing the order ("Solution Summary"). Each Master Agreement Rider, Solution Quote, and/or Maintenance Services Order Form shall contain an Itemized list of all Products to be provided and/or all Managed Products and/or Supported Products to be maintained, together with the price to be charged therefor. If Seller is to provide Professional Services, Managed Services, and/or Maintenance Services to Customer, a Statement of Work ("Statement of Work" or "Scope of Work" or "SOW") that references this Agreement shall accompany the Master Agreement Rider, Solution Quote, and/or Maintenance Services Order Form. With respect to the Managed Services only, the SOW may act as both the Solution Quote and SOW. The Master Agreement Rider, Solution Quote, and/or Maintenance Services Order Form shall reflect the price to be charged for such Professional Services, Managed Services, and/or Maintenance Services. 4. Any amendment, supplement, or modification of any term or provision of this Agreement or any Solution Summary must be in a writing that is signed by authorized representatives of both Parties to this Agreement. 5. In lieu of an authorized representative of each Party signing a Solution Summary, the Parties agree that Customer may issue to Seller a purchase order to order Products, Professional Services, Managed Services, and/or Maintenance Services from Seller. Such purchase order shall be deemed Customer's agreement to the terms and conditions of the corresponding Solution Summary. However, no terms or provisions of the purchase order (other than the description of the Products, Professional Services, Managed Services, and/or Maintenance Services and the quantity thereof) shall apply. Rather, only the terms and provisions of this Agreement shall apply to the sale of Products, Professional Services, Managed Services, and/or Maintenance Services. 6_ This Agreement shall remain in effect until terminated by either Party. Either Party may terminate this Agreement, provided that such Party provides to the other Party written notice of such termination at least thirty (30) days prior to the effective date of such termination. The notice of termination shall reflect the effective date of the termination; if it does not, then the effective date of the termination shall be the date that is thirty (30) days after the non -terminating Party receives the written notice of the termination. Notwithstanding the foregoing, however, the termination of this Agreement shall not affect the obligations of either Party pursuant to the terms and provisions of any Solution Summary that has been executed by an authorized representative of each Party prior to the effective date of termination of this Agreement. C1 Master Sales Agreement Page 1 of 10 01.13.2019 7. Terms and conditions contained in a Solution Summary shall control over any general terms and conditions contained herein or in Attachment A. 8. PURCHASE PRICE Unless specifically stated and mutually agreed upon in a particular Solution Summary, the purchase price of the Products, Professional Services, Managed Services, and/or Maintenance Services set forth in each Solution Summary shall be paid as follows. a) For Products and Professional Services (excluding third party support services): i) Down Payment: Fifty percent (50%) of the Price (as defined in Article I, Section 1 of Attachment A) is due upon execution of the Solution Summary; and ii) Balance: The remaining balance of the Price is due as follows: (1) For Products: One Hundred percent (100%) of the remaining balance of the Price attributable to the cost of Products Es due thirty (30) days from the date of the invoice. (2) For Professional Services (excluding third party support services): (i) Professional Services provided on a time and materials basis will be invoiced monthly as Professional Services are performed by Seller (following depletion of the down payment) and are due thirty (30) days from the date of the invoice; or (ii) Professional Services provided on a fixed price basis are due either (a) monthly as Professional Services are performed by Seller (following depletion of the down payment) within thirty (30) days from the date of the invoice; or (b) periodically based on mutually agreed upon milestones as set forth in the pertinent Solution Summary (following depletion of the down payment) thirty (30) days from the date of the invoice. b) For Third Party Support Services: One Hundred percent (100%) of the Price attributable to the cost of third party support services as specified in the Solution Summary will be invoiced and due prior to commencement of the third party support services. c) For Managed Services: Customer will be invoiced for Managed Services annually in advance and such invoices are due prior to the commencement of the pertinent twelve (12) -month period. d) For Maintenance Services: Customer will be invoiced for Maintenance Services on a quarterly basis in advance and such invoices are due prior to the commencement of the pertinent quarterly period. 9. FINANCING OPTION: If Customer elects to lease the pertinent Products, Professional Services, Managed Services, and/or Maintenance Services, Customer a) Shall inform Seller of such election no later than the time that the pertinent Solution Summary is executed to avoid being liable for sales tax on the Products, Professional Services, Managed Services, and/or Maintenance Services provided under the pertinent Solution Summary; and b) May assign a Solution Summary to a financing company for the sole purpose of financing the Price, provided that Customer agrees that any such assignment shall not delay or relieve Customer of its duty to perform any of its obligations under this Agreement (including, but not limited to, liability for amounts owed under this Agreement). Customer further agrees that it shall not take any action, or refuse to take any action, that delays Sealer's receipt of payment from Customer's financing company. C1 Master Sales Agreement Page 2 of 10 01.13.2019 10 PRODUCT RETURNS All configured orders, including hardware and software, are non -returnable, All software, regardless of whether such software is part of a configured order, is non -returnable. All authorized returns may be assessed a twenty percent (20%) restocking charge; provided, however, that Product returns based on warranty claims will not be assessed such restocking charge. IN WITNESS WHEREOF, the Parties Have caused this Agreement to be executed and do each hereby warrant and represent that their respective signatory whose signature appears below has been and is on the date of this Agreement duly authorized by all necessary and appropriate corporate action to execute this Agreement SELLER: CONVERGEONE, INC. CUSTOMER: _City of Lodi Signature: Signature, Printed Name: Printed Name: Title: Title: Date: Date: C1 Master Sales Agreement Page 3 of 10 Approved as to Form: IANICE D. MAGDICH City Attorney 01.13, 2019 ATTACHMENT A — TERMS AND CONDITIONS ARTICLE 1 — GENERAL TERMS AND CONDITIONS OF THE AGREEMENT 1. PRICE; PAYMENT; TAXES. Customer agrees to pay the price of each Product, Professional Service, Managed Service, and/or Maintenance Service described on a Solution Summary, together with freight, taxes, and any other itemized charges, fees, and costs (the "Price"). The currency to be used for payment of the Price is the United States Dollar. Except for breach by Seller, termination of this Agreement shall not affect Customer's obligation to pay the Price. If Customer is exempt from tax, Customer shall provide to Seller a valid tax exemption certificate at the time that this Agreement is executed. Customer agrees to indemnify and hold harmless Seller (1) from any and all liens, actions, or claims made by or on behalf of any tax authority In connections with any payment made to Seller, and (ii) for all costs incurred by Seiler in connection with the foregoing (including, but not limited to, reasonable attorneys' fees). Interest on any past due obligation shall accrue at the rate of one and one-half percent (114%) per month or at the maximum rate allowed by law, whichever is lower. ANI prices are exclusive of applicable taxes or other charges imposed by law. 2. REMEDIES UPON DEFAULT. In the event that Customer fails to pay according to the terms and provisions of this Agreement, or fails to perform any of its obligations pursuant to the terms and provisions of this Agreement, then Seller, at its option, may do any or all of the following: (i) upon notice to Customer, terminate this Agreement; (ii) regardless of whether this Agreement is terminated, suspend further performance under this Agreement; and (iii) retain, as an offset to Customer's liability for such default, all or a portion of the progress payments (if any) previously paid by Customer. Customer shall in any event remain fully liable for damages resulting from Customer's breach (including, but not limited to, all costs and expenses incurred by Seller on account of such breach, including costs of arbitration and reasonable attorneys' fees). The rights afforded Seller hereunder shall not be deemed to be exclusive but, instead, shall be in addition to any rights or remedies provided by law. 3. INDEPENDENT CONTRACTOR. Seller shall conduct its business as an independent contractor with respect to Customer. Seller will represent to third persons, to the public generally, and to all governmental bodies (including, but not limited to, federal, state, and local authorities) that the business conducted by Seller with respect to Customer is that of an independent contractor and that such is the sole relationship between the Parties. It is expressly understood that Seller is in no way considered the legal representative of Customer for any purpose whatsoever with respect to this Agreement. Customer shall deduct no income tax or other withholdings whatsoever from payments due to Seller. 4. CUSTOMER COOPERATION. Customer shall cooperate fully with Seller to facilitate performance of Seller's obligations hereunder, including the rendition of Professional Services, Managed Services, Maintenance Services, and/orthe installation of a Product. Customer shall dedicate such time, personnel, and resources as may be reasonably necessary to complete Seller's performance of Professional Services, Managed Services, and/or Maintenance Services. Cooperation shall include the following: (a) Customer shall designate a coordinator at Customer's site with the knowledge and authority to make decisions with respect to all of Customer's operations in order for Seller to meet its obligations hereunder; (b) Customer shall make available such data as is necessary to adequately test the Product(s), Professional Service, Managed Service, and/or Maintenance Service; (c) If Customer is purchasing an application software solution, Customer shall be responsible for the operation of each CPU, conducting a back-up, performing all program translation, contacting all third -party vendors to confirm that existing hardware and software will be compatible with the new software, and processing any necessary changes; (d) Customer shall provide full, free, and safe access to Customer's facilities to allow Seller to meet its obligations hereunder; (e) Customer shall provide the telephone numbers, network addresses, and passwords necessary for Seller to gain remote access to Customer's systems when necessary in connection with the performance of Professional Services, Managed Services, and/or Maintenance Services; (f) Customer shall provide (i) interface information for Managed Products (as defined in Article III, Section 1 of this Attachment A) and Supported Products (as defined in Article IV, Section 1 of this Attachment A), and (ii) any third party consents and licenses needed by Seller to access such Managed Products and Supported Products; and (g) If Seller provides an Update pursuant to Article IV, Section 2(f) of this Attachment A, or other new release of software as part of the Maintenance Services, Customer will promptly implement such Update or new release. (h) Customer expressly acknowledges that with respect to Seller's performance of the Professional Services, Managed Services, and/or Maintenance Services called for under this Agreement, such Professional Services, Managed Services, and/or Maintenance Services do not involve or in any way require Seller's access to Personal Data as defined herein. If, in the future, Customer requests additional services that require Seller access to Personal Data, those additional services, and the security requirements associated with Seller's access to Personal Data in order to perform those additional services, shall be subject to a separate written agreement between the parties. "Personal Data is personal data of any employee, customer, or other individual. 5. FORCE MAJEURE. Seller shall not be liable for any loss, failure, or delay in furnishing a Product, or providing Professional Services, Managed Services, and/or Maintenance Services, resulting from any of the following: fires; explosions; floods; storms; acts of God; governmental acts, orders, or regulations; hostilities; acts of terrorism; civil disturbances; strikes; labor difficulties; machinery breakdowns; transportation contingencies; difficulty in obtaining parts, supplies, or shipping facilities; delays of carriers; or any other cause beyond the control of Seller. 6. ARBITRATION. Seller and Customer agree to submit any and all disputes (of whatever kind or nature, whether in law or in equity) arising out of the terms and provisions of this Agreement (including, but not limited to, determining the validity, specific enforcement, breach, or interpretation of this Agreement) to binding arbitration only, such arbitration to be conducted pursuant to the then -current Commercial Arbitration Rules of the American Arbitration Association and to be held before a single arbitrator at a location mutually agreeable to the Parties. The Parties shall be entitled to limited discovery under the Federal Rules of Civil Procedure. Notwithstanding the foregoing, in the event that third parties are necessary to achieve a just adjudication of the issues, either Party may commence a civil action In a court of competent jurisdiction having jurisdiction over all parties involved. The prevailing Party shall be entitled to recover from the non -prevailing Party its costs and reasonable attorneys' fees incurred in connection with any action or proceeding that arises from the terms and provisions of this Agreement. The Parties further agree that any monetary award may be reduced to judgment and C1 Master Sales Agreement Page 4 of 10 01.13,2019 docketed in any court of competent jurisdiction without objection and execution had thereon. This provision shall survive the termination of this Agreement. No arbitration or action, regardless of form, arising out of the terms and provisions of this Agreement may be brought or commenced by either Party more than one (1) year after the dispute, claim, or cause of action arose. 7. LIMITATION OF LIABILITY. THE ENTIRE LIABILITY OF SELLER (AND SELLER'S OWNERS, OFFICERS, DIRECTORS, EMPLOYEES, AGENTS, AND AFFILIATES) AND CUSTOMER'S EXCLUSIVE REMEDIES FOR ANY DAMAGES CAUSED BY ANY PRODUCT DEFECT OR FAILURE, OR ARISING FROM THE PERFORMANCE OR NON-PERFORMANCE OF ANY PROFESSIONAL SERVICE, MANAGED SERVICE, AND/OR MAINTENANCE SERVICE, REGARDLESS OF THE FORM OF ACTION (WHETHER IN CONTRACT, TORT, OR OTHERWISE), SHALL BE (I) FOR FAILURE OF PRODUCTS DURING THE WARRANTY PERIOD, THE REMEDIES STATED IN ARTICLE ll SECTION 3 OF THIS ATTACHMENT A; (H) FOR DELAYS IN DELIVERY OR INSTALLATION (WHICHEVER 15 APPLICABLE) OF MORE THAN THIRTY (30) DAYS BY CAUSES ATTRIBUTABLE SOLELY TO SELLER, CUSTOMER'S SOLE REMEDY SHALL BE TO TERMINATE THE PERTINENT SOLUTION SUMMARY WITHOUT INCURRING CHARGES FOR SUCH TERMINATION AND, WITHIN THIRTY (30) DAYS AFTER SUCH TERMINATION, RECEIVE A REFUND OF ALL MONIES PAID UNDER THE PERTINENT SOLUTION SUMMARY; OR (ill) FOR SELLER'S FAILURE TO PERFORM ANY OTHER MATERIAL TERM OF THIS AGREEMENT, IF SELLER DOES NOT CORRECT SUCH FAILURE WITHIN THIRTY (30) DAYS AFTER RECEIPT OF WRITTEN NOTICE ADDRESSING SUCH FAILURE, CUSTOMER'S SOLE REMEDY SHALL BE TO TERMINATE THE PERTINENT SOLUTION SUMMARY WITHOUT INCURRING CHARGES FOR SUCH TERMINATION AND, WITHIN THIRTY (30) DAYS AFTER SUCH TERMINATION, RECEIVE A REFUND OF ALL MONIES PAID UNDER THE PERTINENT SOLUTION SUMMARY. SELLER SHALL IN NO CASE BE LIABLE FOR PUNITIVE, SPECIAL, INCIDENTAL, OR CONSEQUENTIAL DAMAGES (INCLUDING, BUT NOT LIMITED TO, LOST PROFITS, LOST SAVINGS, OR LOST REVENUES OF ANY KIND; LOST, CORRUPTED, MISDIRECTED, OR MISAPPROPRIATED DATA; NETWORK DOWNTIME; INTERRUPTION OF BUSINESS ARISING OUT OF OR IN CONNECTION WITH PERFORMANCE OR NON-PERFORMANCE OF THE PRODUCTS OR USE BY CUSTOMER; CHARGES FOR COMMON CARRIER TELECOMMUNICATIONS SERVICES; COST OF COVER; OR CHARGES FOR FACILITIES ACCESSED THROUGH OR CONNECTED TO THE PRODUCTS ("TOLL FRAUD")). THE PREVIOUS SENTENCE APPLIES REGARDLESS OF WHETHER SELLER HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. 8. NON-SOLICITATION OF EMPLOYMENT. (a) Seller shall not solicit for employment, either directly or indirectly, employees of Customer during the term of any Solution Summary, or for a period of twelve (12) months thereafter; provided, however, that Seller may hire employees of Customer if such employees initiate contact with Seller (e.g., a response to general employment advertisements of Seller). If Seller violates this provision, Seller will pay to Customer an amount equal to the amount of the total potential compensation for the first twelve (12) months for the employee of Customer that has been hired. Seller shall pay such amount to Customer on the date that is thirty (30) days after the employee accepts an offer of employment from Seller. (b) Customer shall not solicit for employment, either directly or indirectly, employees or subcontractors of Seller during the term of any Solution Summary, or for a period of twelve (12) months thereafter; provided, however, that Customer may hire employees or subcontractors of Seller if such employees or subcontractors Initiate contact with Customer (e.g., a response to general employment advertisements of Customer). If Customer violates this provision, Customer will pay to Seller an amount equal to the amount of total potential compensation for the first twelve (12) months for the employee or subcontractor cf Seller that has been hired. Customer shall pay such amount to Seller on the date that is thirty (30) days after the person accepts an offer of employment from Customer. 9. AFFILIATE RIGHTS. (a) ConvergeOne. The Parties agree that any ConvergeOne Affiliate may sell Products, Professional Services, Managed Services, and/or Maintenance Services to Customer under the terms and provisions of this Agreement; provided, however, that only the ConvergeOne Affiliate that is the party to such sale is liable to Customer for the sale of such Products, Professional Services, Managed Services, and/or Maintenance Services_ By signing a given Solution Summary for any such sale, the applicable ConvergeOne Affiliate and Customer agree that the terms and conditions of this Agreement will apply to such sale as if such ConvergeOne Affiliate were Seller under this Agreement, but only with respect to such sale_ For purposes of this Agreement, "ConvergeOne Affiliate" means any corporation, partnership, or other entity that, directly or indirectly, controls (or is controlled by or is under common control with) Seller. (b) Customer. Seller agrees that Seller approved Affiliates (as that term is defined below) may purchase Products, Professional Services, Managed Services, and/or Maintenance Services under the terms and conditions of this Agreement by signing a Solution Summary referencing this Agreement. The terms of this Agreement will be incorporated by reference In any such Solution Summary as if this Agreement were separately executed by such Affiliate (and solely by such Affiliate) and the term "Customer" used herein will be deemed as applying to such Affiliate for the purposes of the Solution Summary. The applicable rights, obligations and liabilities of Customer under each Solution Summary executed by Customer will be solely those of Customer, and none of the Affiliates will be responsible for any obligations or liabilities of Customer under such Solution Summaries, The applicable rights, obligations and liabilities of an Affiliate executing a Solution Summary will be solely those of such Affiliate, and neither Customer nor any other Affiliate will be responsible. for any obligations or liabilities of the Affiliate under the Solution Summary. Under no circumstances will Customer and any of the Affiliates be jointly or severally liable for the obligations of the others. "Affiliate(s)" means any entity that directly or indirectly controls, is controlled by, or is under common control or ownership with Customer, where "control" (including the terms "controlled by and "under common control with") means the possession, directly or indirectly, of the power to direct, cause or influence the direction of the management policies of a person, whether through the ownership of voting securities, by contract, or otherwise. 10. MISCELLANEOUS. (a) Merger. This Agreement constitutes the entire agreement between Seller and Customer with respect to the subject matter described herein, superseding all prior and contemporaneous correspondence between the Parties. (b) No Assignment. This Agreement shall not be assignable by either Party without the prior written consent of the other Party, which consent shall not be unreasonably withheld; provided, however, that in any assignment of this Agreement, both the assignor and the assignee are jointly and severally liable under this Agreement for any outstanding obligations of the assignor that are due as of the date of the assignment. Notwithstanding the foregoing, Seller may assign all of its rights and delegate all of its obligations with respect to any order that relates to the performance of Professional Services and/or delivery of Products at any location that is outside of the United States of America to one or more third parties believed by Seller in good faith to be capable of providing such goods and services. C1 Master Sales Agreement Page 5 of 10 01.13.2019 (c) Notices. Al! notices shall be in writing and shall be delivered in person or sent by facsimile or U.S. Mail, postage prepaid, to the address of the other Party as set forth in this Agreement or to such other address as a Party shall designate. (d) Acknowledgment and Authority. By execution hereof, the signers hereby certify that they have read this Agreement and these terms, understand them, and agree to all terms and provisions stated herein. In addition, Seller and Customer warrant to each other that each respective Party and Its respective signatory have the full right, power, and authority to execute this Agreement. (e) Secrecy and Confidentiality. Each Party covenants and agrees on behalf .of itself, its officers, directors, employees, and agents as follows: (i) all information obtained from a Party (including, but not limited to, customer lists, customer-sensitive information, business practices and operations, pricing and financial information, product plans and designs, and configurations and layouts) is secret, proprietary, and confidential; (ii) such information shall be neither disclosed to others nor used for any unauthorized purpose; and (iii) each Party shall use its best efforts to return such information to the other Party upon termination of this Agreement. This provision does not apply to such information that (a) was in the possession of a Party before disclosure to such Party by the other Party; (b) becomes a matter of public record through no fault of a Party; or (c) is released by or at the direction of the Party that originally disclosed such information to the other Party, (f) Waiver. If either Party fails to enforce any right or remedy available under the terms and provisions of this Agreement, such failure shall not be construed as a waiver of any right or remedy with respect to that breach or any other breach or failure by the other Party. Rather, any waiver of a Party's rights or remedies available under the terms and provisions of this Agreement must be in a writing that is signed by the Party against whom enforcement is sought. (g) Severability. In the event that any term or provision of this Agreement is held to be illegal, unenforceable, or invalid, the remaining terms and provisions hereof shall remain in full force and effect. (h) Survival of Terms. Notwithstanding any termination or expiration of this Agreement, all rights and remedies available to the Parties and all terms and provisions of this Agreement that are not performed or cannot be performed during the term of this Agreement shall survive the termination or expiration of this Agreement. (r) Governing Law, The laws of the jurisdiction where the Products, Professional Services, Managed Services, and/or Maintenance Services are to be provided (including, but not limited to, the Uniform Commercial Code as adopted in that jurisdiction) apply to all Products, Professional Services, Managed Services, and/or Maintenance Services provided under the terms and provisions of this Agreement, without reference to such jurisdiction's conflicts of law principles. (j) Counterparts and Electronic Signature. This Agreement may be executed in two (2) or more counterparts, each of which will be deemed an original, but all of which taken together shall constitute one (1) and the same Agreement. The counterparts of this Agreement may be executed and delivered by facsimile or other electronic signature by one (1) Party to the other Party. The receiving Party may rely on the receipt of such document so executed and delivered by facsimile or other electronic means as if the original had been received. ARTICLE 11 -- ADDITIONAL TERMS AND CONDITIONS SPECIFIC FOR PRODUCTS AND PROFESSIONAL SERVICES 1. TITLE; RISK OF LOSS. Titre, ownership, and risk of loss of hardware sold pursuant to the terms and provisions of this Agreement shall pass to Customer upon delivery to Customer. Title and ownership of software delivered to Customer pursuant to the terms and provisions of this Agreement shall remain solely with its licensor. Risk of loss of software delivered to Customer pursuant to the terms and provisions of this Agreement shall pass to Customer upon delivery to Customer. 2. SECURITY INTEREST. Seller reserves a purchase money security interest in and to the Products (together with the cost of any Professional Services related thereto) sold hereunder as security for performance of Customer's obligations. Seller may file the Agreement (together with any attachments thereto) to perfect such interest. 3. WARRANTIES; DISCLAIMERS; SOFTWARE LICENSES. Seller represents and warrants that, immediately prior to the sale of a Product to Customer, Seller will be the lawful owner thereof, free and clear of any liens and encumbrances (other than those that may arise under the terms and provisions of this Agreement). In addition, Seller represents and warrants that Seller has the full right, power, and authority to sell, deliver, or provide the Product to Customer. (a) Product Warranties. Products are warranted to Customer either directly by the original equipment manufacturer ("OEM") or by Seller. 1) Direct OEM Warranty. Customer receives the OEM's warranty in effect at the time of delivery with respect to hardware purchased and/or software licensed hereunder. Except for the warranties of title and rightful transfer, the OEM warranty is Customer's sole warranty with respect to such items. SELLER MAKES NO OTHER EXPRESS OR IMPLIED WARRANTIES WITH RESPECT TO OEM PRODUCTS. 2) Indirect OEM Warranty. If Customer does not receive the Product warranty directly from the OEM, then Seller wan-ants the Products to Customer to the same extent and term as the OEM warrants the Products to Seller. Upon request, Seiler will provide such warranty information to Customer. Except for the warranties of title and rightful transfer, the OEM warranty is Customer's sole warranty with respect to such items. SELLER MAKES NO OTHER EXPRESS QR IMPLIED WARRANTIES WITH RESPECT TO OEM PRODUCTS. 3) Seller Warranty for Refurbished Products. 1) Products refurbished by Seller are warranted for a term of one (1) year from either (1) the date of Product delivery if the Product is installed by Customer; ar (ii) the date of Product installation if the Product is installed by Seller. ii) This warranty does not extend to Products or Product components that have had their serial numbers, date of manufacturing, or OEM labels removed, defaced, or altered, nor does this warranty cover any of the following: counterfeit parts; repair for damages to Products or Product components; or malfunctions caused by (i) misuse, neglect, power failures, power surges, lightning, fire, flood, or accident; (ii) use of products ar facilities supplied by others; (iii) failure to follow installation, operation, or maintenance Instructions; (Iv) failure to permit remote access; or (v) force majeure conditions specified in Article I, Section 5 of this Attachment A. (b) Professional Services Warranty. Professional Services are warranted for thirty (30) days from the date on which such Professional Services are completed. Professional Services will be performed in a good and workmanlike manner by qualified personnel, (c) Warranty Procedures and Disclaimers. The terms and provisions of this Article II, Section 3(c) apply to all Products and Replacement Products provided hereunder, C1 Master Sales Agreement Page 6 of 10 01.13.2019 1) If a Product or a Replacement Product does not conform to the Product warranty during the warranty period, Customer shall promptly notify Seller in writing of such non-conformance, which shall be stated in detail sufficient to describe both the problem and its symptoms. Seller or the OEM (as the case may be), at its option, will either (i) repair the Product so that the Product conforms to the Product warranty; or (ii) replace the Product with a Product that conforms to the Product warranty ("Replacement Product"). Replacement Products are warranted as outlined above for the remainder of the original applicable Product warranty period. Replaced Products become the property of Seller. Seller will not charge Customer for the Replacement Product. Seller, however, may charge Customer for the time that is incurred to diagnose the problem and to repair or replace the Product, if the problem is not covered by the Product warranty. 2) THE EXPRESS WARRANTIES HEREIN CONTAINED ARE IN LIEU OF ANY AND ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING NON -INFRINGEMENT AND THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, ALL OF WHICH SELLER DISCLAIMS AND ARE EXCLUDED. SELLER DOES NOT WARRANT UNINTERRUPTED OR ERROR -FREE OPERATION OF THE PRODUCTS OR SERVICES PROVIDED HEREUNDER. SELLER DOES NOT WARRANT THAT THE PRODUCTS ARE IMMUNE FROM OR WILL PREVENT EITHER FRAUDULENT INTRUSION OR UNAUTHORIZED USE. SELLER WILL NOT BE RESPONSIBLE FOR UNAUTHORIZED USE (OR THE IMPACTS OF FOR SUCH USE) OF COMMON CARRIER SERVICES OR FACILITIES ACCESSED THROUGH OR CONNECTED TO THE PRODUCTS. UNLESS OTHERWISE AGREED IN THIS AGREEMENT, CUSTOMER IS SOLELY RESPONSIBLE FOR ENSURING THAT CUSTOMER'S NETWORKS AND SYSTEMS ARE ADEQUATELY SECURED AGAINST UNAUTHORIZED INTRUSION. 3) If the Products are to be used either on or to support Telephony over Transmission Control Protocol/Internet Protocol (TCP/IP) facilities, Seller requires that a network assessment be performed prior to installation to determine network performance, reliability, and security In the event that Customer either refuses to authorize a pre -installation network assessment or fails to follow Sellers reasonable recommendations after Seller performs the network assessment, and if performance problems are encountered and determined to be associated with network performance, reliability, or security issues, Customer shall be solely responsible for all costs associated with a post -installation network assessment and network reconfiguration. (d) Software Licenses. Customer agrees that it has read, understood, and will abide by the terms and provisions of the software license(s) pertinent to the Products provided hereunder. Such software licenses may be found on the Internet at http://eonvergeone,com/support/end-user-license-agreements-and-product-warranties/. Seller Software licenses, as identified in the pertinent Solution Summary, may be found in the Statement of Work corresponding to the pertinent Solution Summary. 4. PROFESSIONAL SERVICES AND TIMING. Professional Services not specifically itemized are not provided. CUSTOMER IS SOLELY RESPONSIBLE FOR SYSTEM BACK-UP PRIOR TO COMMENCEMENT OF PROFESSIONAL SERVICES OR INSTALLATION OF A PRODUCT ARTICLE ID — ADDITIONAL TERMS AND CONDITIONS SPECIFIC FOR MANAGED SERVICES 1. DEFINED TERMS OF ARTICLE III. (a) "EULA" is an acronym used to refer to an End User License Agreement. (b) "Managed Products' are all hardware and/or software identified on a Master Agreement Rider or Solution Quote for which the Managed Services are to be provided. (c) "Managed Sites" are the locations specified on each pertinent Master Agreement Rider or Solution Quote. (d) One Vision Services" means the proactive monitoring portion of the Managed Services. 2. PROVISION AND SCOPE OF MANAGED SERVICES. (a) Order Form and Provision of Managed Services. Seller will provide the Managed Services for Managed Products at Managed Sites, as described further in each pertinent Solution Summary that references the Agreement. The Price set forth on the pertinent Solution Summary for Managed Services is based on the number of active Managed Products. Seiler, at its discretion, will perform a true -up on a quarterly basis to reconcile future billing on any Managed Products that have been added (activated) or removed (deactivated) during the previous period. (b) Monitoring. Seller may electronically monitor Managed Products for the following purposes: (i) to perform and analyze diagnostics from a remote location and to take corrective actions, if necessary: (ii) to determine system configuration and applicable charges; (iii) to verify compliance with applicable software license terms and restrictions; (iv) to assess Customer needs for additional products and/or Managed Services; and (v) as otherwise provided in each pertinent Solution Summary. (c) General Limitations. Seller will not provide Managed Services for Managed Products that have been misused, used in breach of the terms and provisions of their respective license, improperly installed or configured, or that have had their serial numbers altered, defaced, or deleted. 3. CUSTOMER RESPONSIBILITIES FOR MANAGED SERVICES. (a) Provision of Managed Products. Customer will provide all Managed Products and Managed Sites. Customer continuously represents and warrants that (i) Customer is either the owner of, or is authorized to access and use, each Managed Product and each Managed Site; and (ii) Seller and its suppliers and subcontractors are authorized to do the same to the extent necessary to provide the Managed Services in a timely manner. (b) Moves of Managed Products. When Customer seeks to move any Managed Products, Customer will notify Seller. Only Seiler or its authorized agent may move Managed Products. Seller may charge additional amounts to recover any additional costs incurred by Seller in providing the Managed Services that result from the move of Managed Products by a party other than .Seller or its authorized agent. (c) Identification Tags. Customer will not remove any identification tags or other markings from any Managed Product. 4. TITLE AND RISK OF LOSS OF MANAGED PRODUCTS. Except for Products provided by Seller to Customer under the terms and provisions of this Agreement, title to the Managed Products will have passed to Customer pursuant to the terms and provisions of a separate agreement under which Customer originally obtained the Managed Products. Customer will bear the risk of loss, theft, destruction, or damage to the Managed Products (each, a "Loss"), and Customer will promptly provide written notice to Seller of any Loss that occurs. Customer, at its expense, will maintain insurance against Losses to the Managed Products for the full replacement value of the Managed Products, Upon Seller's request, Customer will provide Seller with evidence of this insurance. Cl Master Sales Agreement Page 7 of 10 01.13.2019 5. SOFTWARE LICENSE FOR MONITORING SOFTWARE INCLUDED IN MANAGED SERVICES. Customer understands that Seller may license software from a third party to provide the Managed Services for which Customer may have access to certain functionality. Customer may use such software in accordance with the terms and conditions of any end user license agreement accompanying such software, whether the terms and conditions of the end user license be in "shrinkwrap," "clickwrap," or some other form. 6. TERM AND TERMINATION RIGHTS OF MANAGED SERVICES. (a) Managed Services Term. Unless a different term is specified on the pertinent Solution Summary, or in the Statement of Work corresponding to the pertinent Solution Summary, Seller will provide the applicable Managed Services for a term ("Managed Services Term") of one (1) year. (b) Termination Rights of Managed Services. 1) For Convenience. Unless otherwise specified on the pertinent Solution Summary, or in the pertinent Statement of Work, Customer may terminate Managed Services, in whole or in part, upon providing Seller with thirty (30) days advance written notice; provided, however, that Customer shall be liable to Seller for the lesser amount due for Managed Services for (i) twelve (12) months; or (ii) the remainder of the Managed Services Term. 2) For Cause. Either Party may terminate the pertinent Managed Services included in a Solution Summary without liability to the other Party by providing written notice to such other Party if such other Party (a) fails to cure any material breach of the terms and provisions of the Agreement or the pertinent Managed Services included in the pertinent Solution Summary within a thirty (30) -day period after it has received from the non -breaching Party a written notice that details the breach and requests that the breach be cured; or (b) becomes insolvent or insolvency proceedings are instituted against such other Party. 7. MANAGED SERVICES WARRANTIES; DISCLAIMERS. (a) Managed Services Warranty. Seller represents and warrants to Customer that the Managed Services will be performed in a professional and workmanlike manner by qualified personnel and in accordance with the terms and provisions of the Agreement and the pertinent Solution Summary. If the Managed Services have not been so performed and if within thirty (30) days after the performance of the Managed Services Customer provides to Seller written notice of such non-compliance, then Seller, at its option, will re -perform the Managed Services, correct the deficiencies, or render a prorated refund based on the original charge for the deficient Managed Services. The warranty remedies expressly provided in this Section will be Customer's sole and exclusive remedies for breach of warranty claims only. (b) EXCEPT AS REFERENCED AND LIMITED IN THIS ARTICLE III, SECTION 7 OF ATTACHMENT A, NEITHER SELLER NOR ITS LICENSORS OR SUPPLIERS MAKE ANY OTHER EXPRESS OR IMPLIED REPRESENTATIONS OR WARRANTIES WITH RESPECT TO THE MANAGED SERVICES. IN PARTICULAR, THERE IS NO WARRANTY THAT ALL SECURITY THREATS AND VULNERABILITIES WILL BE DETECTED OR THAT THE MANAGED SERVICES WILL RENDER ANY PRODUCT SAFE FROM SECURITY BREACHES. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, SELLER DISCLAIMS ALL OTHER EXPRESS, IMPLIED, AND STATUTORY WARRANTIES, INCLUDING, BUT NOT LIMITED TO, NON -INFRINGEMENT AND THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. ARTICLE IV — ADDITIONAL TERMS AND CONDITIONS SPECIFIC FOR MAINTENANCE SERVICES 1. DEFINED TERMS OF ARTICLE IV. (a) "Added Products" are those additional Customer -acquired products of the same type and manufacturer(s) as the existing Supported Products. (b) "End of Support" occurs when the manufacturer declares a Supported Product "end of life," "end of service," "end of support," "manufacture discontinue," or any similar designation (c) "Extended Support" is the limited set of Maintenance Services provided by Seller when certain Supported Products are subject to End of Support. (d) "Host' is a third party service provider. (e) "Maintained Products" means collectively, the Supported Products and the Supported Systems (f) New Software" includes patches, Updates, or feature upgrades for Supported Products. (g) "Supported Products" are (1) all hardware and/or software identified on a Maintenance Services Order Form for which the Maintenance Services are to be provided; and (2) Added Products. (h) "Supported Sites" are the locations specified on a Maintenance Services Order Form or Statement of Work. (i) "Supported Systems" are the networks specified on a Maintenance Services. Order Form, and/or a group of Supported Products. (j) "Replacement Hardware" is hardware that Seiler provides as part of the Maintenance Services. (k) "Vendor Management" are certain functions Seller performs to instruct third party vendors, or request products or services on Customer's behalf from third party vendors, under Customer's supply contracts with such third party vendors. 2. PROVISION AND SCOPE OF MAINTENANCE SERVICES. (a) Order Form and Provision of Maintenance Services. Seller will provide the Maintenance Services for Supported Products or Supported Systems at Supported Sites, as described further in the Solution Summary. The Price set forth on the pertinent Solution Summary is based on the port and item counts provided to Seller. If the actual quantities of ports that are maintained at the inception of the Solution Summary vary by more than five percent (5%) from the port count provided to Seller, and/or there is a discovery of additional items, Seller reserves the right to adjust the Price on the pertinent Solution Summary to reflect the actual quantities being maintained. Seller, at its discretion, will perform a true -up on a quarterly basis to reconcile future billing on any items that have been added (activated) or removed (deactivated) during the previous period. (b) Title and Risk of Loss of Supported Products. Except for Products sold by Seller to Customer under the terms and provision of this Agreement, title to the Supported Products will have passed to Customer pursuant to the terms and provisions of a separate agreement under which Customer originally obtained the Supported Products. Title to any Replacement Hardware (as defined in Article IV, Section 2(h) of this Attachment A) (if applicable) provided by Seller as part of the Maintenance Services will pass to Customer when installed. Customer bears the risk of Toss, theft, destruction, or damage to the Supported Products (each, a "Loss"), and Customer will promptly provide Seller with written notice of any Loss that occurs. Customer, at its expense, will maintain insurance against Losses to C1 Master Sales Agreement Page 8 of 10 01,13,2019 the Supported Products for the full replacement value of the Maintained Products. Upon the request of Seller, Customer will provide Seller with evidence of this insurance. (c) Monitoring. Seller may electronically monitor Maintained Products for the following purposes. (I) to perform and analyze diagnostics from a remote location and to take corrective actions, if necessary; (11) to determine system configuration and applicable charges; (iii) to verify compliance with applicable software license terms and restrictions; (iv) to assess Customer needs for additional products andlor Maintenance Services; and (v) as otherwise provided in the Statement of Work. (d) Error Correction. Some Maintenance Services options may include correction of Errors. An "Error" means a failure ofa Supported Product to conform in all material respects to the manufacturers specifications applicable when the Supported Product was originally purchased or originally licensed by Customer. (e) Help Line Support. Where the Maintenance Services include help line support, Seller will provide such help line support (e.g., service hours and target response intervals) in accordance with that which is indicated on the Solution Summary. (f) Updates. Where the Maintenance Services include the provision of Updates, Seller will make available to Customer such Updates as the manufacturer makes available to Seller. An "Update" is a change in software that typically provides maintenance correction only, An Update typically is designated as a change in the digit to the right of the second decimal point (e.g., n.y.[z]). Seller, at its option, will determine how to provide an Update (e.g., via a website, email, U.S. Mail, etc.). Updates may either be remotely installed by Seller (or its subcontractor) or delivered to Customer for installation by Customer. (g) End of Support. The Seller may discontinue or limit the scope of Maintenance Services on a Supported Product for which the manufacturer has declared End of Support. if Maintenance Services are discontinued for a Supported Product, the Supported Product will be removed from the Solution Summary and the Price adjusted accordingly. For certain Supported Products subject to End of Support, Seller may continue to offer Extended Support. Where Seller chooses to provide such Extended Support, the description of such Extended Support, and the fees associated therewith, will be available at the time notice is sent by Seller to Customer. These notices will communicate information such as Extended Support eligibility, Extended Support alerts related to parts shortages, and end of Maintenance Services (including Extended Support) eligibility. (h) Replacement Hardware. Replacement Hardware rnay be new, factory reconditioned, refurbished, re -manufactured, or functionally equivalent. Replacement Hardware, if not new, will be warranted the same as new hardware and will be equivalent to new in its performance. Replacement Hardware will only be furnished on an exchange basis. Immediately upon Customer's receipt of Replacement Hardware, or installation of the Replacement Hardware by Seller, as applicable, the hardware being replaced by Seller will become the property of Seller. Seller represents and warrants that all Replacement Hardware will be free of defects in design, materials, and workmanship. In addition, if Seller is not the manufacturer of such Replacement Hardware, Seller will make available to Customer all warranties provided by the manufacturer for such Replacement Hardware. (i) Added Products. If Customer acquires Added Products and locates such Added Products with existing Supported Products at a Supported Site, the Added Products will automatically be added to the Solution Summary at the then current fees charged by Seiler as of the date on which the Added Products are first co -located with the Supported Products and for the remainder of the Maintenance Term (as hereinafter defined). Added Products purchased from a party other than Seller are subject to certification by Seller at its then current certification rates. If an Added Product fails certification, Seller may choose not to add such Added Product as a Supported Product. (j) General Limitations. Unless a Statement of Work provides otherwise, Seiler will only provide Maintenance Services on software for (I) the unaltered current release of such software, and (ii) the prior release of such software. The following items are included in the Maintenance Services only if the Statement of Work specifically includes them: (i) support of user -defined applications; (ii) support of Supported Products that have been modified by a party other than Seller (except for installation of standard, self -installed Updates provided by the manufacturer); (iii) making corrections to user -defined reports; (Iv) data recovery services; (v) services associated with relocation of Supported Products; (vi) correction of Errors arising from causes external to the Supported Products (such as power failures, power surges, or lightning strikes); (vii) Maintenance Services for Supported Products that have been misused, used in breach of the terms and provisions of their respective license, improperly installed or configured, or that have had their serial numbers altered, defaced, or deleted; and (viii) correction of Errors, the cause of which occurred prior to the commencement of Maintenance Services pursuant to the terms of the pertinent Solution Summary. 3. CUSTOMER RESPONSIBILITIES FOR MAINTAINED PRODUCTS. (a) Provision of Supported Products and Supported Systems. Customer will provide ail Supported Products, Supported Systems, and Supported Sites. Customer continuously represents and warrants that (1) Customer is either the owner of, or is authorized to access and use, each Supported Product, each Supported System, and each Supported Site; and (ii) Seller and its suppliers and subcontractors are authorized to do the same to the extent necessary to provide the Maintenance Services in a timely manner. (b) Moves of Supported Products. When Customer seeks to move any Supported Product, Customer will notify Seller. Only Seller or its authorized agent may move Supported Products. Seller may charge additional amounts to recover any additional costs incurred in providing the Maintenance Services that result from the move of Supported Products by a party other than Seiler or its authorized agent. (c) Identification of Maintained Products. Customer will not remove any identification tags or other markings from any Maintained Product. (d) Vendor Management Authorization. Where Seller is to perform Vendor Management functions, Customer will provide Seller with a letter of agency or similar document, in a form that is reasonably satisfactory to Seller, that authorizes Seller to perform the Vendor Management. Where the third party vendor's consent is required for Seller to be able to perform the Vendor Management in a timely manner, Customer will obtain the written consent of the third party vendor and will provide Seller with a copy of such written consent. (e) Third Party Hosting. For Maintenance Services that include monitoring, In the event that one (1) or more network address(es) to be monitored by Seller are associated with systems owned, managed, andlor hosted by a Host, Customer will (1) notify Seller of the Host prior to commencement of the Maintenance Services: (11) obtain Host's advance written consent for Seller to perform the Maintenance Services on Host's computer systems and provide to Seller a copy of such written consent; and (iii) facilitate necessary communications between Seiler and Host in connection with the Maintenance Services. 4. SOFTWARE LICENSES OF MAINTAINED PRODUCTS. Where the Maintenance Services include providing New Software, the New Software will be provided subject to the license grant and restrictions contained in the original agreement under which Customer licensed the original software for which the New Software is provided. Where there is no existing license for the original software, New Software will be provided subject to the current license terms and restrictions of the manufacturer for the New Software. New Software C1 Master Sales Agreement Page 9 of 10 01.13,2019 may include components provided by third party suppliers that are subject to their own end user license agreements. Customer may install and use these components in accordance with the terms and conditions of the end user license agreement accompanying such components, whether the terms and conditions of the end user license are in "shrinkwrap," "cfickwrap," or some other form. 5. TERM AND TERMINATION RIGHTS OF MAINTENANCE SERVICES. (a) Maintenance Services Term. Unless a different term is specified on the pertinent Solution Summary, Seller will provide the applicable Maintenance Services for a term ("Maintenance Term") of one (1) year. Following the expiration of the Maintenance Term, Maintenance Services will automatically renew for successive one (1) year periods (each a "Maintenance Renewal Term') at the Price set forth in the pertinent Solution Summary for each respective Supported Product, unless, at least thirty (30) days prior to the expiration of the Maintenance Term or the applicable Maintenance Renewal Term, Customer or Seller provides the other with written notice of its intent not to renew. (b) Termination Rights of Maintenance Services. 1) For Convenience. Unless otherwise specified on the pertinent Solution Summary, Customer may terminate Maintenance Services, in whole or in part, upon providing Seiler with thirty (30) days advance written notice; provided, however, that Customer shall be liable to Seller for the lesser amount due for Maintenance Services for (i) twelve (12) months; or (1!) the remainder of the Maintenance Term or the applicable Maintenance Renewal Term. 2) For Cause. Either Party may terminate the pertinent Maintenance Services Included in a Solution Summary without liability to the other Party by providing written notice to such other Party if such other Party (a) fails to cure any material breach of the terms and provisions of the Agreement or the pertinent Maintenance Services included in the pertinent Solution Summary within a thirty (30) -day period after it has received from the non -breaching Party a written notice that details the breach and requests that the breach be cured; or (b) becomes insolvent, or insolvency proceedings are instituted against such other Party. 6, MAINTENANCE SERVICES WARRANTIES; DISCLAIMERS. (a) Maintenance Services Warranty. Seller represents and warrants to Customer that the Maintenance Services wilt be performed in a professional and workmanlike manner by qualified personnel and in accordance with the terms and provisions of the Agreement and the pertinent Solution Summary. If the Maintenance Services have not been so performed, and if within thirty (30) days after the performance of the Maintenance Services Customer provides Seller with a written notice of such non-compliance, then Seller, at its option, will re -perform the Maintenance Services, correct the deficiencies, or render a prorated refund based on the original Price for the deficient Maintenance Services. The warranty remedies expressly provided in this Article IV, Section 6 of Attachment A will be Customer's sole and exclusive remedies for breach of warranty claims only, (b) EXCEPT AS REFERENCED AND LIMITED IN THIS ARTICLE IV, SECTION 6 OF ATTACHMENT A, NEITHER SELLER NOR ITS LICENSORS OR SUPPLIERS MAKE ANY OTHER EXPRESS OR IMPLIED REPRESENTATIONS OR WARRANTIES WITH RESPECT TO THE MAINTENANCE SERVICES. IN PARTICULAR, THERE FS NO WARRANTY THAT ALL SECURITY THREATS AND VULNERABILITIES WILL BE DETECTED OR THAT THE MAINTENANCE SERVICES WILL RENDER A SUPPORTED PRODUCT OR SUPPORTED SYSTEM SAFE FROM SECURITY BREACHES. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, SELLER DISCLAIMS ALL OTHER EXPRESS, IMPLIED, AND STATUTORY WARRANTIES, INCLUDING, BUT NOT LIMITED TO, NON - INFRINGEMENT AND THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. C1 Master Sales Agreement Page 10 of 10 01.13.2019 advantel networks .. L.1 1,1 iVCli Cj(;i10,4 1',NY Submitted to: Advantel Networks 2222 Trade Zone Blvd., San Jose, CA 95131 Main (800) 377-4911 Fax (408) 435-3820 Quote 3044515 Page 1 of 2 City Of Lodi Finance Dept PO Box 3006 Lodi, CA 95241-1910 U.S.A. Job Site: City Of Lodi City Hall 230 W. Elm Street Lodi, CA 95240 U.S.A. Acct #: 10641 Account Manager: Tom Aldine (916) 504-4140 Office taldine@convergeone.com Contact: Benjamin Buecher Phone: (209) 401-5810 Solution Summary - Date: 2/22/2019 Adva nisi Combined renewal quote provides renewal of ESNA OfficeLinX, Avaya PASS, and Advantel Vantagecare Break Fix Support. Co•Termed contract term is 2/1/19 to 1/31/20 Quote includes reinstatment fees for ESNA and PASS applications. Quote is valid till 3/30/19. Additional fees may be due if received after 3/30/19. To order Please have quote and attached Vantage Care Contract signed and returned along with your purchase order to taldrne©Convergeone corn Thank you, ConvergeOne truely appreciates and values the business of the City of Lodi! Tom Quantity Item ID --- Detailed Items Included -- Description ESNA Office LinX 24 SUPP-RENE-0124 Enterprise Software Assurance Renewal - 1-24 ports, price per port 2 SUPP-REAL-0124 RealSpeak (TTS) Software Assurance price per port 1 - 16 ports 1 ESNA - RENST ESNA Reinstatement Fee Advantel VantageCare Break -Fix 1 VCCUSM VantageCare Avaya PASS 743 GE4300AQQ CS1000 - Partner Assurance Software Support - Tier 2 (101-1199 users) 1 PASS - RENST Avaya PASS Reinstatement Fee Unit Price Extended Price $218.75 $5,250.00 $277.83 $555.66 $1,734.56 $1,734.56 $14,740.00 $14,740.00 $6.34 $4,710.62 $1,978.46 $1,978.46 Product and Software Product: Total Amount: $28,969.30 $28,969,30 Summary Pricing Above Advantel Networks Proprietary and Confidential advantel networks A (1 L:uiiv 1=0- ge.011e' COMPANY Advantel Networks 2222 Trade Zone Blvd., San Jose, CA 95131 Main (800) 377-4911 Fax (408) 435-3820 Quote 3044515 Page 2 of 2 Submitted to: Job Site: Account Manager: City Of Lodi Rnance Dept City Of Lodi City Hall Tom Aldine PO Box 3006 230 W. Elm Street (916) 504-4140 Office Lodi, CA 95241-1910 U.S.A. Lodi, CA 95240 U.S.A. taldine@convergeone.com Acct #: 10641 Contact: Benjamin Buecher Phone: (209) 401-5810 Date: 2/22/2019 This quote is valid for 60 days and is subject to Advantel Networks terms and conditions located at}Ittn;pwww.advantel.com/al:out-uslle Acceptance of this quote by signature, PO, or payment by Customer shall constitute Customers Acceptance of such terms of service and accompanying statement of work (if applicable), and notice to Advantel Networks to proceed with the work described in this quote. Compliance with Laws= The parties hereby incorporate the requirements of 41 C.F.R §§ 60-1.4(aX7), 60-300.5 and 60-741.5, if applicable. For Advantel Networks signature only Prepared By: Tom Aldine For Advantel Networks Date: CUSTOMER ACCEPTANCE OF PROPOSAL. The above prices, specifications and conditions are satisfactory and are hereby accepted. For City Of Lodi City Hall Authorized Signature: Date of Print Name: Acceptance: Title: Advantel Networks Proprietary and Confidential RESOLUTION NO. 2019-51 A RESOLUTION OF THE LODI CITY COUNCIL RESCINDING RESOLUTION NO. 2019-29 AND AUTHORIZI NG TH E CITY MANAGER TO EXECUTE SERVICE AGREEMENT WITH CONVERGEONE, OF BLOOMINGTON, MINNESOTA, FOR RENEWAL OF SOFTWARE LICENSING AND SUPPORT OF CITY'S TELEPHONE SYSTEM AND VOICEMAIL SYSTEMS WHEREAS, the City's contract with Advantel Networks for phone support expired on January 31, 2019; and WHEREAS, on March 6, 2019, City Council adopted Resolution No. 2019-29 authorizing the City Manager to execute a Professional Services Agreement with Advantel Networks, of San Jose; however, Advantel Networks was unable to execute the agreement; and WHEREAS, staff recommends authorizing the City Manager to execute a service agreement with ConvergeOne, of Bloomington, Minnesota, for renewal of software licensing and support, in the amount of $28,969.30; and WHEREAS, staff recommends authorizing the City Manager to allocate additional funding for time and materials for software changes to the system that are not covered under the maintenance agreement, in the amount of $4,000, for a combined total not to exceed $32,969.30. NOW, THEREFORE, BE IT RESOLVED that the Lodi City Council does hereby rescind Resolution No. 2019-29; and BE IT FURTHER RESOLVED that the Lodi City Council does hereby authorize the City Manager to execute a service agreement with ConvergeOne, of Bloomington, Minnesota, for the renewal of software licensing and support for the City's telephone system and voicemail systems, in the amount of $29,969.30, plus an additional amount not to exceed $4,000 for time and materials software changes to the system that are not covered in the maintenance agreement, in a total amount not to exceed $32,969.30. Dated: April 17, 2019 I hereby certify that Resolution No. 2019-51 was passed and adopted by the City Council of the City of Lodi in a regular meeting held April 17, 2019, by the following vote: AYES: COUNCIL MEMBERS — Johnson, Kuehne, Mounce, Nakanishi, and Mayor Chandler NOES: COUNCIL MEMBERS — None ABSENT: COUNCIL MEMBERS — None ABSTAIN: COUNCIL MEMBERS — None 2019-51 -ifY\ ?1,2„,,,,,,4 NNIFER'T'. FERRAIOLO ity Clerk