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HomeMy WebLinkAboutVerizon Network Integration ELIZABETH A. NEVILLE TOWN CLERK REGISTRAR OF VITAL STATISTICS ~IAGE OFFICER RECORDS MANAGEMENT OFFICER FREEDOM OF INFORMATION OFFICER Town Hail, 53095 Main Road P.O. Box 1179 Southold, New York 11971 Fax (631) 765-6145 Telephone (631) 765-1800 southoldtown.northfork.net OFFICE OF THE TOWN CLERK TOWN OF SOUTHOLD THIS IS TO CERTIFY THAT THE FOLLOWING RESOLUTION NO. 246 OF 2005 WAS ADOPTED AT THE REGULAR MEETING OF THE SOUTHOLD TOWN BOARD ON APRIL 26, 2005: RESOLVED, that the Town Board of the Town of Southold hereby authorizes and directs Suoervisor Joshua Y. Horton to execute an A~reement between the Town of Southold and Verizon Network Intel~ration Coro. regarding maintenance and management services for the Town of Southold's frame relay network, namely the managed network solutions service, in the amount of $9,917.52 for a term ofune year, subject to the approval of the Town Attorney. Elizabeth A. Neville Southold Town Clerk PATRICIA A. FINNEGAN TOWN ATTORNEY patricia.finnegsn@town.southold.ny.us KIERAN M. CORCORAN ASSISTANT TOWN ATTORNEY kieran.corcoran@town.southold.ny.us LORI HULSE MONT~FUSCO ASSISTANT TOWN ATTORNEY lori.montefusco@town.southold.ny.us JOSHUA ¥. HORTON Supervisor Town Hall Annex, 54375 Route 25 P.O. Box 1179 Southold, New York 11971-0959 Telephone (631) 765-1939 Facsimile (631) 765-6639 OFFICE OF THE TOWN ATTORNEY TOWN OF $OUTHOLD To: From: Date: Subject: MEMORANDUM Ms. Joanne Liguori Lynne Krauza Secretary to the Town Attorney April 21, 2005 Verizon Agreement Please be advised that Lori has reviewed and approved the attached Agreement between the Town of Southold and Verizon Network Integration Corp. in connection with the maintenance for the Town's frame relay network. I have prepared a Resolution for next week's Town Board meeting authorizing Josh to sign this Agreement. In this regard, kindly have Josh sign the Agreement where indicated and return it to Lloyd Reisenberg. By copy of this Memorandum to Lloyd, I ask that he make certain that Betty receive the original fully executed Agreement for her records. Thank you for your attention. If you have any questions, please call me. Ilk Enclosure cc: Ms. Elizabeth Neville, Town Clerk (w/encl.) Mr. Lloyd Reisenberg, Data Processing (w/o encl.) e S~$tem Agreement This System Agreement ("Agreement"), effective as of the 30th day of March, 2005. is made by and between A. Verizon EntityName ("Verizon"): Verizon Network Integration Corp Address: 1 Davis Farm Road, Floor 2 B. Customer Name ("Customer") Town of Southold Address: 53095 Route 25 veriz City: Portland State: ME Zip Code: 04103 City: Southold State: NY Zip Code: 11971 Contact Name and Phone Number: Philip Kent ~ 207-79%1061 Customer Billing Address (if different): Quote Number (if applicable) 8-1E8V7K and Attachment A for Sitewatch MNS City: State: Contact Name and Phone Number: Lloyd Risenburg ~ 631-765-1891 Zip Code: C. Select all applicable options: [] New System/Service Sale [] Adds/Upgrade to Existing System [] Installation Services Verizon Maintenance and Management Services [] Data Maintenance Next Business Day Remote [] Data Maintenance 4-Hour Remote [] Data Maintenance 4-Hour On-Site [] Data Maintenance 8-Hour On-Site [] Video Central Support Next Business Day On-Site [] Connectivity Assurance [] EMC Support Services [] IP Phones Next Business Day [] IP Telephony Application Server Platform 4-Hour Remote [] IP Telephony Application Server Platform 4-Hour On-Site [] IP Telephony Application Server Platform 8-Hour On-Site [] IP Telephony Software Support [] IP Telephony Software Support with Upgrades [] SiteWatch - Fault Management [] SiteWatch - Performance Management [] SiteWatch - Configuration Management [] IPTWatch Call Manager/Server Management [] IPTWatch Unity Voice Mail/Server Management [] 1PTWatch IP QoS Fault Monitoring [] IPTWatch QoS Performance Monitoring Verizon Maintenance and Management Services Cont'd. [] 8x5 Switch & Phones [] 8x5 Switch & Proprietary Phones [] 8x5 Switch Only [] 8x5 Ancillary/Auxiliary Equipment [] 8x5 Nortel Norstar [] 8x5 NEC Electra Elite [] 8x5 Business Communication Manager [] 24x7 Switch & Phones [] 24x7 Switch & Proprietary Phones [] 24x7 Switch Only [] 24x7 Ancillary/Auxiliary Equipment [] 24x7 Nortel Norstar [] 24x7 NEC Electra Elite [] 24x7 Business Communication Manager [] 24x7 Voice Service Plus [] On-Site Technician [] Supplemental Warranty Coverage (extends the standard warranty to 24 hour coverage for major failures during the warranty period) [] Other Rev. 2.9.05 Page 1 of 11 ~ ESC # 0148 ~ S~,~stem Agreement Verizon Maintenance and Management Services Cant'd. Third Party Maintenance Services (Maintenance will be provided in accordance with the vendor's terms and conditions and except for Sections 2, 4, 11, 12, 13 and 14 the terms and conditions herein shall not apply to such maintenance services.) [] Nortel Extended Service [--]Cisco Sma~et []Other: D. Payment Options: [] Cash Purchase [] Lease/Financing [] Verizon Credit Inc. [] Third Party Lease/Financing __ [] E-Rate/USF Funding Application No. [] Tax Exempt No. A163554 must have prior written approval of Verizon) E. The total price of the System and/or services being purchased by the Customer is: System Price Maintenance Service Voice Maintenance Service for Years Managed Network Solutions Service for ! Supplemental Warranty Coverage Applicable taxes (estimated) TOTAL PRICE Down Payment Balance Due Years $ 9,917.52 $__ $__ $ 9,917.52 $__ $ 9,917.52 Customer Initials Rev. 2.9.05 Page 2 of 11 ~ ESC # 0148 System Agreement F. Maintenance Service Billing Option: [] Pre-paid Billing: __ years $___ (Annual Rate) [] Deferred Billing (deferred until warranty expiration): 1 years $9,917.52 $ (Year 1) (Year2) Bill deferred payment (check one): [] annually [] semi-annually $ $.__$.__ (Year 3) (Year 4) (Year 5) [] quarterly [] monthly Go Attachments [] Call Center Sofavare Maintenance and Support Exhibit [] EMC Support Services Exhibit [] Equipment Sales and Installation Exhibit [] Managed Network Solutions Exhibit [] Professional Services Exhibit [] Quote [] Service Plan Description(s) [] Statement of Work · [] Voice Maintenance Exhibit Customer Initials Rev. 2.9.05 Page 3 of 11 ~ ESC # 0148 . ,System Agreement 1. Scope of Agreement. Subject to the terms and conditions of this Agreement, Verizon will provide Customer, either directly or in conjunction with such subcontractors as it may select, the equipment, installation services, and/or the maintenance services (hereinafter collectively the "System") as described in this Agreement and as further described in a Statement of Wurk and any Exhibit attached hereto. 1.1 For Etluipment Sale and Installation Services: Verizon will provide and, if applicable, install the equipment as set forth in the applicable quote and the Equipment and Installation Services Extfibit. 1.2 For Maintenance Services: Verizon will provide the maintenance services as set forth in the applicable quote and the Call Center Software Ma~ntonance and Support Exhibit, the EMC Support Services Exhibit, the Maintenance Services Exhibit and/ur the Managed Network Solutions Exhibit. 1.3 For Professional Services: Verixon will provide the professional services as set forth in the applicable quote and the Professional Services Exhibit. All applicable Statements of Work and Exhibits attached hereto are incorporated herein and made a part of this Agreement. 2. Fees and Payment. 2.1 Customer will pay all fees for the System as set forth on Pages 2 and 3 of this Agreement and the applicable quote, subject to additions and deductions made by written Change Order(s). Customer is responsible for applicable taxes, shipping, handling, telecommunication surcharges and other charges applicable to the equipment and/or services provided under this Agreement. Customer agrees either to pay to Verizon the amount of all applicable taxes (as detetminad by tax authorities) or to provide upon execution of this Agreement evidence of exemption acceptable to Verizon. 2.2 Payments are due within thirty (30) days of receipt of the invoice ("Due Date") and any payment not received by the Due Date shall be subject to a late payment charge of the lesser ofune and une-halfpercent (1.5%) per month and the maximum amount allowed by law. Late payment charges will be assessed monthly against the amount due. Should Customer dispute an amount invoiced, Customer shall pay the undisputed portion of that invoice and promptly notify Verizon in writing of the amount and nature of the dispute and the parties shall cooperate to resolve the dispute pursuant to Section 15 of this Agreement. Verizon reserves the right to suspend or terminate any or all Services or terminate the provision, installation or repair of any or all equipment subject to this Agreement immediately if Customer is more than sixty (60) days overdue for payments that have not been disputed in good faith. 2.3 The down payment listed on Page 2 of this Agreement shall be paid at execution of this Agreement. The balance due shall be paid in accordance with the terms oft. his Section unless otherwise specified in a Statement of Wurk. 2.4 E-Rate Funding 2.4.1 If Customer seeks E-Rate funding under the federal Universal Service Fund from the Universal Service Administrative Company ("USAC") with respect to the Services and/or equipment provided pursuant to this Agreement, then: 2.4.1.1 Customer shall be solely responsible for applying for and securing any E-Rate funding, and for ensuring the accuracy and integrity of all data and information submitted in connection with such application; and 2.4.1.2 Verizon shall have no liability arising from any assistance it provides Customer in connection with such application and Customer shall hold Verizon harmless with respect to any such assistance or information provided to Customer. 2.4.2If for any reason Customer fails to qualify for or secure E-Rate funding or otherwise becomes ineligible for such funding, or if such funding is withdrawn or canceled, or if payment of any Verizon charges is denied by USAC, Customer shall nevertheless be obligated to pay one-hundred percent (100%) of the charges associated with the Services and/or equipment provided pursuant to this Agreemant that are not paid to Verizon from E-Rate funding. 3. Term and Termination. This Agreement shall be effective as of the date first set forth above and shall continue in full force and effect until terminated in accordance with this Agreement. Rev. 2.9.05 Page 4 of 11 ~ ESC # 0148 , ~System Agreement 3.1. Either party may, upon written notice, immediately suspend its performance of and/or terminate the affected service or equipment order to which the deficiency pertaim in the event the other party (i) fails to perform material terms of this Agreement and (a) such failure is not cured within thirty (30) calendar days following receipt of a default notice in writing fi.om the other party, or (b) if such fa'flure cannot reasonably be cured during that time and the defaulting party fails to use conmaercially reasonable efforts to cure such breach as soon as practicable, but in any event within ninety (90) calendar days following written notice; (ii) engages in fraud, criminal conduct or willful misconduct in connection with the business relationship of the parties; or (iii) becomes insolvent, ceases doing business in the ordinary course, enters bankruptcy proceedings or effects an assignment for the benefit of creditors. In the event Verizon terminates this Agreement pursuant to this Section 3.1, Customer shall promptly pay Verizon for the System and any services provided up to the date of termination. In thc event Customer defaults under this Agreement, Customer's down payment shall be non-refundable. 3.2. Either party may terminate this Agreement or a Statement of Work for convenience, in whole or in part, upon thirty (30) days prior written notice to the other party. If this Agreement or a Statement of Work is terminated by Customer pursuant to this Section, or if an order under this Agreement is cancelled by Customer, Verizon shall have no further responsibility under this Agreement, Statement of Work or such order, as applicable, and Castomer shall promptly pay Verizon: 3.2.1. for all equipment and services provided up to the date of termination or cancellation, as applicable; 3.2.2. for all expenses incurred up to the date of termination or cancellation, as applicable, including but not limited to the costs of terminating purchase orders, return of equipment, removal of equipment and other contractual obligations made by Verizun to meet its obligations under this Agreement or Statement of Work, plus a restocking fee of twenty-five pement (25%) of the cost of any equipment cancelled or returned. 3.3. Where multiple Statements of Work are associated with this Agreement, the termination of one or fewer than all of the Statements of Work shall only affect the terminated Statement(s) of Work. The remaining Statement(s) of Werk shall remain in effect. 3.4. Verizon reserves the right to suspend performance under this Agreement or a Statement of Work if required, in Verizun's sole discretion, by regulation, statute, judicial action or other applicable legal requirement. 3.5 Verizon reserves the right to amend the rates, terms and conditions of Service under this Agreement to be effective upon the commencement of any renewal term and without formal amendment of this Agreement by prodding Customer written notice thereof prior to the expiration of the then-current term. If Customer is unwilling to accept such amended rates, terms and conditions, Customer shall provide Verizon written notice thereof prior to the expiration of the then-current term, in which event the Service shall terminate upon expiration of the then-current term. 3.6 Termination of this Agreement shall not relieve either party of its respective obligations to comply with all terms of this Agreement that expressly call for performance prior or subsequent to the termination date, including without limitation the parties' respective obhgations to protect proprietary and confidential information. 4. Purchase Order. The parties acknowledge that a Customer purchase order or similar document is intended solely to evidence Customer's intention to purchase equipment and/or services set forth therein. Except with respect to a provision in a Customer purchase order or similar document evidencing an intent to be bound by the terms and conditions of an Agreement between Customer and Verizun, the terms and conditions of soch Customer purchase order or similar document shall be disregarded and of no force or effect, it being agreed that the terms and conditions of the Agreement between Customer and Verizun shall govern. 5. Leasing Option. With Verizon's prior written consent Customer may finance the System or any portion thereof in a separate transaction through a third party leasing company ("Lessor") approved by Verizon, may assign its fights and obligations with respect to payment under this Agreement to the Lessor, and/or may cause the Lessor to issue a purchase order in a form acceptable to Verizon. Notwithstanding such transaction and/or assignment, Customer shall remain responsible for performance of all of its obligations under this Agreement, including payment in full. 6. Risk of Loss. If Verizon installs the System, risk of loss or damage to the System passes to Customer on delivery of the System (including portions thereof) to Customer's site. If Verizon does not install the System, risk of loss or damage to the System (or portions thereof) passes to Customer upon delivery to the carrier. Rev. 2.9.05 Page 5 of 11 ~ ESC # 0148 · ~System Agreement 7. Title and Security Interest. Until full payment has been rendered, Customer grants Verizon a purchase money security interest in the System, agrees to execute all documents necessary to perfect that interest and, to the extent permitted by law, grants Verizon a special power-of-attorney for the purpose of executing the necessary documents. Upon final payment, title shah pass to Customer and Verizon will release its security interest. Customer will not grant or convey to any other person or entity a security interest in, or permit placement ora lien on, the System unless and until Customer has paid Verizon in full for such System. 8. Software. Soft~vare provided in conjunction with the System is licensed to Customer under the license provided by the software publisher or by tbe equipment manufacturer with which the so fhvare is provided. Customer shall, if required, execute a separate soi~ware license agreement in a form satisfactory to the software publisher or equipment manufacturer. 9. Customer Responsibilities. Customer will: 9.1. Allow Verizon access for installation, inspection, testing, maintenance and repair of the System and performance of any required activity. 9.2. Provide suitable building facilities for the System in accordance with local codes, including but not limited to dncfing, conduit, structural borings, etc. for cable and conductors in floors, ceilings and walls; electrical service with suitable terminals and power surge protection devices; and metallic grounds with sufficient slack in the equipment room, installed in conformity with the National Electrical Code and local codes. 9.3. Provide necessary heating, cooling, humidity and dust control as required by manufacturer specifications. 9.4. Remove existing equipment or cable that interferes with System installation. 9.5. Identify and disclose to Verizon concealed equipment, wiring or conditions that might be affected by or might affect the installation of the System. Customer shall defend and hold Verizon harmless f~om any claim, damage or liability resulting from a failure to disclose this information. 9.6. Authorize Verizon, at Customer's expense, to make service requests upon third parties for System interconnection requirements, including obtaining telephone service for testing where necessary. 9.7. Designate trash deposit points on each floor on which the System is to be installed where Verizon will place waste for removal by Customer. 9.8. Cooperate with Verizon's requests for assistance in testing or installation. 9.9. Be responsible for providing adequate back-up of data and for restoring data to repaired equipment. 9.10. ~f the System is t~ be c~rmected to the public natw~rk~ be s~~e~y resp~nsib~e f~r se~ecti~n, imp~ementali~n and maintenance of security features for defense against unauthorized long distance calling, and for payment of long distance, toll and other telecommunications charges incurred through use of the System. 9.11. Immediately notify Verizon of any anticipated delay in building availability or inability to meet any of the above listed requirements. 10. Changes In/Additions to System. 10.1 Customer may order additional equipment, installation and/or maintenance services pursuant to a written Amendment, Customer purchase order or similar document, and such order shall be governed by this Agreement, including without limitation Section 4, and shall reference this Agreement. 10.2 Cnstomer shall also have tbe right, by written notice, to propose changes in the System under this Agreement and any Statement of Work ("Change Orders") and Verizon shall comply to the extent it deems feasible and reasonable. If Verizon determines that such changes cause an increase or decrease in the cost of or time required for performance, Verizon shall advise Customer and such adjustments shall be reflected in a written Change Order. Should Verizon encounter, in installing the System, any concealed or unknown condition not expressly set forth in the applicable Statement of Work, which condition affects the price or schedule for installation of the System, the price and/or the schedule shall be equitably adjusted by Change Order to cover all costs, including but not limited to labor, equipment, materials and tools necessary to carry out the change. 10.3 No Change Order shall become effective as a part of this Agrecment and the applicable Statement of Work, and no changes in the System shall be initiated, until the Change Order is mutually agreed upon in writing. Verizon shall not be obligated to consider or accept any Change Order that results in a decrease of more than twenty percent (20%) in the total price of the System. Verizon may also propose changes in or additions to the System, and may proceed with such changes upon execution by Customer and Verizon of a ~vritten Change Order. Rev. 2.9.05 Page 6ofll ~ ESC # 0148 · ~System Agreement 11. Warranty. Verizon warrants that it will perform the services provided under this Agreement in a good and worlananlike manner. Unless otherwise set forth in an Exhibit, all manufacturers' warranties for equipment provided hereunder are passed through to Customer and warranty claims shall be presented by Customer directly to the manufacturer. THE WARRANTIES SET FORTH IN THIS AGREEMENT ARE IN LIEU OF ALL OTHER WARRANt'IES FROM VERIZON, UNLESS OTHERWISE STATED IN AN EXHIBIT. OTHERWISE VERIZON DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, ANY WARRANTY OF NON- INFRINGEMENT AND ANY WARRANTIES ARISING FROM A COURSE OF DEALING, USAGE OR TRADE PRACTICE. VERIZON SHALL NOT BE LIABLE FOR UNAUTHORIZED ACCESS TO VERIZON'S OR CUSTOMER'S TRANSMISSION FACILITIES OR PREMISES EQUIPMENT OR FOR UNAUTHOR 17gD ACCESS TO OR ALTERATION, THEFT OR DESTRUCTION OF CUSTOMER'S DATA FILES, PROGRAMS, PROCEDURES OR INFORMATION THROUGH ACCIDENT, FRAUDULENT MEANS OR DEVICES, OR ANY OTHER METHOD. VERIZON MAKES NO WARRANTY FOR USE OF THE SYSTEM AS A COMPONENT IN LIFE SUPPORT SYSTEMS OR DEVICES, PUBLIC SAFETY SYSTEMS, OR WITH RESPECT TO THE PERFORMANCE OF ANY SOFTWARE OR FIRMWARE. 12. Limitation of Liability. EXCEPT FOR PAYMENTS OWED UNDER THIS AGREEMENT, IN NO EVENT WILL EITHER PARTY BE LIABLE TO THE OTHER PARTY FOR SPECIAL, INDIRECT, INCIDENTAL, EXEMPLARY, OR CONSEQUENTIAL DAMAGES, WHETHER ARISING IN CONTRACT, TORT (INCLUDING A PARTY'S NEGLIGENCE) OR OTHERWISE, INCLUDING WITHOUT LIMITATION DAMAGES ARISING FROM DELAY, LOSS OF GOODWILL, LOSS OF OR DAMAGE TO DATA, LOST PROFITS (ACTUAL OR ANTICIPATED), UNAVAILABILITY OF ALL OR PART OF THE SYSTEM, OR OTHER COMMERCIAL OR ECONOMIC LOSS, EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. EXCEPT WITH RESPECT TO THE INDEMNIFICATION OBLIGATIONS SET OUT 1N SECTION 13, VERIZON'S ENTIRE LIABILITY FOR ANY OTHER DAMAGE WHICH MAY ARISE HEREUNDER, FOR ANY CAUSE WHATSOEVER, AND REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT OR IN TORT, INCLUDING VERIZON'S NEGLIGENCE, OR OTHERWISE, SHALL BE LIMITED TO THE pLrRCHASE PRiCE OF THE EQUIPMENT OR SERVICES GIVING RiSE TO THE CLAIM. VERIZON SHALL BEAR NO LIABILITY FOR USE OF EQUIPMENT OR SERVICES PROVIDED UNDER THIS AGREEMENT IN CONNECTION WITH LIFE SUPPORT SYSTEMS OR DEVICES OR PUBLIC SAFETY SYSTEMS. IN ADDITION, VERIZON SHALL HAVE NO LIABILITY OR RESPONSIBILITY FOR INTEROPERABILITY OR COMPATIEILITY OF THE SYSTEM WITH THIRD-PARTY PRODUCTS OR SYSTEMS THAT CUSTOMER MAY UTILIZE IN CONJUNCTION WITH THE SYSTEM OR TO WHICH CUSTOMER MAY CONNECT THE SYSTEM. 13. Indemnification. 13.1 Except as provided below, Verizon will defend, inderrmify and hold harmless Customer against any suit, action or proceeding ("Claim") alleging that equipment supplied to Customer by Verizun hereunder infringes a valid U.S. patent or copyright, except as provided below, and Verizon agrees to pay all reasonable litigation and settlement costs and attorney's fees incurred by Customer in connection with any such Claim. If the use of any equipment supplied to Customer by Verizun hereunder is enjoined or subject to a Claim as described above, Verizon may, at its option and expense, procure for Customer the right to use the equipment or relevant component, replace the equipment or relevant component with an equivalent, non-infringing equipment or relevant cotr~punent, or modify the equipment or relevant component so that it becomes non-infiinging. In the event that none of the foregoing options is commercially reasonable, Verizun will remove the infringing equipment and refund the purchase price for the equipment less depreciation for such use. Depreciation shall be calculated on a straight-line basis, assuming a useful life of five (5) years. Verizon shall have no obligation (a) for any costs, fees or expenses incurred by Customer without Verizun's prior written consent, (b) with respect to any Claim arising out of"music on hold" or similar service, or (c) for any indirect, special, consequential or incidental damages arising out of any Claim. This indemnity shall not apply to any Claim, or portion thereof that arises from (i) any negligent or willful act or omission by or attributable to Customer; (ii) use or operation of the equipment supplied to Customer by Verizon pursuant to this Agreement in combination with equipment or services not supplied to Customer by Verizon under this Agreement; (iii) any addition to or modification of the equipment supplied to Customer by Verizon hereunder by Customer or its other contractors; (iv) use of other than the current unaltered release of any software used in the equipment; or (v) any equipment, system, product or service of Customer which otherwise infringed the U.S. patent or copyright asserted against Rev. 2.9.05 Page 7 ofll ~ ESC # 0148 .System Agreement Customer prior to the supply of the equipment to Customer by Verizon under the Agreement. The foregoing states the en~re obligation of Verizon to Customer and is Customer's sole and exclusive remedy with respect to any claim of infi.ingement of any intellectual proper~ tight of any kind, and Verizon disclaims all other warranties and obligations with respect to any such Claims. 13.2 Customsr shall defend, indemuify and hold harmless Verizon, its employees, officers, directors, agents and affdlatcs for damages, costs and attorneys fees in connection with any claim arising out of Customer's use of the equipment provided by Verizon other than as speckled in this Agreement, Customer's combination of the equipment provided by Verizon with other equipment or services not provided by Verizon, Customer's modification of the equipment provided by Verizon, or arising out of the content of communications transmitted by Customer in its usc of the services or equipment provided by Vcrizon, including but not limited to hbel, slander, and invasion of privacy. 13.3 Each party (the "indemmtor") shall defend, indenmify, and hold handless the other party (the "indemnitee') against all clnim~ and liabilities for direct damages imposed on the indemnitee for bodily injuries, including death, and for damages to real or tangible personal property to the extent caused by the negligent or otherwise tortious acts or omissions of the indermfitor, its agents or employees in the course of performance of this Agreement. 13.4 Katz patents. Notwithstanding anything in this Agreement to the contrary, Verizon and its subsidiaries shall not be liable to Customer or indemnify Customer for any allegation, assextion, or clams of patent infringement, ineinding contributory infringement or inducement to infainge, of any patents either owned, assigned, or licensable now or herenfier by Ronald A. Katz or Ronald A. Katz Technology Licensing, L.P. or by his or its successors or assigns, or on which Ronald A. Katz is listed as an inventor ("Katz Patents"). Customer releases Verizon and its subsidiaries and its and their employees, officers, and directors fi.om any and all liability for all allegations, assertions, claims, losses and damages (whether stated in contract or tort, including but not limited to all claims for patent and copyright infringement) arising fi.om, in connection with, related to, or as a result of any claim of infringement, including contributory infringement or inducement to infringe, of any Katz Patents related to equipment and/or services provided by Verizon to Customer under this Agreement, whether alone or in combination with other devices, products, software, services and/or materials whether provided by Customer, Verizon, or others. Verizon shall not be respons~le for determining whether Customer requires a license to any Katz Patents, obtaining any such license on their behalf, or paying any fees relating to any such licenses. To the extent there is any contradiction in terms as between this sub-section and any other (sub-)section of this Agreement, the terms of this sub-section shall take precedence 13.5 The indenmffication obligations set forth in this Section 13 are contingent upon (1) the indemnitec providing the indemnitor prompt, written, and reasonable notice of the claims, demands, and/or causes of action subject to indemnification, (2) the indemnitee granting the indenmitor the right to control the defense of the same, and (3) the indemnitee's full cooperation with the indemuitor in defense of the claim, including providing information and assistance in defending the claim. Nothing herein, however, shall restrict the indenimtec fi.om participating in the defense of the claim, demand, and/or cause of action at its own cost and expense with counsel of its own choosing. No settlement may be entered into by the indemnitor on behalf of the indenmitee that includes obligations to be performed by the indemultee (other than payment nf money that will be fully paid by the indenmitor under Sections 13.1- 13.3 above) without indemuitee's prior written approval. 14. Confidentiality. Except as required by law or regulation, each party (the "receiving party") shall keep confidential and not disclose, directly or indirectly, to any third party any Confidential Information, as de£med below, received fi.om the other party (the "disclosing party") without the prior written consent ora duly authorized officer of the disclosing party. The disclosing party shall conspicuously mark its tangible Confidential Information as Proprietary or Confidential at the time of disclosure to the receiving party. Confidential Information that is disclosed orally will be identified by the disclusing party as Confidential Information at the time of disclosure to the receiving party. Each party shall use, copy and disclose the Confidential Infonnatinn of thc disclosing party solely for purposes of performing this Agreement. All Confidential Information of a party shall be and shall remain the property of such party. A party shall deliver to the disclosing party, upon written request by the disclosing party, all Confidenfial Information of the disclosing party then in thc receiving party's possession or control, directly or indirectly, in whatever form it may be (including, without limitation, magnetic media) or certify its destruction to the disclosing party. Each party shall take all necessary and reasonable action, Rev. 2.9.05 Page 8 of 11 r'r's ESC # 0148 , ,System Agreement by instruction, agreement or otherwise, with its employees, consultants, subconh'actors, affiliates, and representatives to satisfy its obligations hereunder. The receiving party's obligations hereunder with respect to confidentiality, non-disclosure and limitation of nsc of Confidenlial Information shall be for the term of the Agreement plns one (1) year. For purposes of this provision, a third party shall not include an entity which has a need to know the Confidential Information and winch owns, is owned by, or is under common ownership with a party to this Agreement. 14.1 Nothing in this Agreement shall prevent either party from using or disclosing any Confidential Information that: (i) has become generally available to the public, other than through any improper action of such party, (ii) is already in the possession of the receiving party and not subject to an existing agreement of confidence between the parties, (iii) is received from a third party without resUiction and without breach of this Agreement, (iv) is independently developed by the receiving party as evidenced by its records, or (v) is disclosed pursuant to a valid law, nde, regulation, subpoena, demand, or order of a court or other governmental body or any political subdivision thereof of competent jurisdiction (collectively "demand"); provided, however, that the receiving party shah first have given notice to the disclosing party (unless prohibited by the terms of such request or requirement or such notice is otherwise proinbited by law) about the demand in order to permit the disclosing party to seek reasonable protective arrangements. 14.2 For purposes of this Agreement, the term "Confidential Information" shall include, without limitation, all nade secrets of a party and all other information and material that relates or refers to the plans, policies, finances, corporate developments, products, pricing, sales, services, procedures, intra-enrporate transactions, suppliers, prospects and customers of a party, as well as financial information relating to such suppliers, prospects and customers, and any other similar confidentiality information and material which aneh pmty does not make generally available to the public. By way of illustration, but not limitation, Confidential Information includes all computer software (including object code and source code), computer sottware and data base technologies, systems, stmctores and architectures, and the processes, formulae, compositions, improvements, inventions, discoveries, concepts, ideas, designs, methods and information developed, acquired, owned, produced, or practiced at any time by a party, and all non-public information relating to the business of such party. 15. Alternate Dispute Resolution (ADR). Any controversy, claim, or dispute ("Disputed Claim") arising out of or relating to this Agreement, except for claims relating to indemnity, infringement, or confidentiality obligations or matters relating to injunctions or other equitable relief(together "Equitable Claims"), shall be first subject to a thirty (30) day negotiation period between the parties in which each party shall disclose to the other party all such documents, facts, statements and any other information winch are reasonably requested by the other party and are relevant to the dispute in question. Should such negotiations fail to resolve the dispute within thirty (30) calendar days, Disputed Claims shall be resulvcd by binding arbitration of a single arbitrator in accordance with the Commercial Arbitration Rules of the American Arbitration Association. The decision of the arbitrator shall be based upon this Agreement and applicable law. The decision of the arbitrator shall be reduced to writing, shall be final and binding except for fraud, misconduct, or errors of law, and judgment upon the decision rendered may be entered in uny court having jurisdiction thereof. In all arbitrations, the arbitrator must give effect to applicable statutes of limitation subject to limitation of actions terms set forth in this Agreement, and shall not be afforded any authority to award relief in excess of what this Agreement provides or to order consolidation or class arbitrations. Thc arbitrator shall have no authority to award punitive damages in any Disputed Claim. The parties agree that any such claims arising under this Agreement mnst be pursued on an individual basis in accordance with the procedure noted above. Even ii'applicable law permits class actions or class arbitrations, the ADR procedure agreed to herein applies and the parties waive any rights to pursue any claim arising under this Agreement on a class basis. Thc arbitration shall be held in a mutually agreed to location, and shall be final and binding on both parties. Each party will bear its own costs of arbitration but shall split equally the fees oftha arbitration and the arbitrator. 16. Hazardous Substances. Except as disclosed to and acknowledged in writing by Verizon, Customer certifies that it is not aware of the presence of any asbestos or other hazardous substance (as defined by any applicable state, federal or local hazardous waste or environmental law or regulation) at any location where Verizon is to perform services under this Agreement. If during such performance Vetizon employees or agents encounter any such substance, Customer agrees to take all necessary steps, at its own expense, to remove or contain the asbestos or other hazardous substance and to test the premises to ensure that exposure does not exceed the lowest exposure limit for the protection of workers. Verizon may suspend performance under this Agreement until thc removal or contaimnent has been completed and approved by the appropriate governmental agency and Verizon. Performance obligations under this Agreement shall be extended for the period of delay caused by said cleanup or removal. Customer's failure to remove or contain hazardous substances shall entitle Verizon to terminate this Agreement without further liability, in which event Customer shall permit Verizon to remove any equipment that has not been accepted, shall reimburse Verizun for expenses incurred in performh~ this Rev. 2.9.05 Page 9 of 11 ~ ESC # 0148 System Agreement Agreement until termination (including but not limited to expenses associated with such termination, such as removing equipment, terminating leases, demobilization, etc.), and shall complete payment for any portion of the System that has been accepted. 17. Force Majeure. Neither party shah be liable for any delay or failure in performance under this Agreement arising out of acts or events beyond its reasonable control, including but not limited to acts of God, war, terrorist acts, fire, flood, explosion, riot, embargo, acts of the Government in its sovereign capacity, labor disputes, unavailability of equipment or parts from vendors, or changes requested by Customer. The affected party shall provide prompt notice to the other party and shall be excused from performance to the extent of such caused delays or failures, provided that the party so affected shall nsc reasonable efforts to remove such causes of such delays or failures and both parties shall proceed whenever such causes are removed or cease. If performance of either party is prevented or delayed by circumstances az described in this section for more than ninety (90) days, either party may terminate the affected Service or Statement of Wurk. Notwithstanding the foregoing, Customer shah not be relieved of its obligation to make any payments, including any late payment charges as provided in Section 2.2, above, that are due to Verizon hereunder. 18. Assignment. Neither party may, without the prior written consent of the other pa~'y, assign or transfer its rights or obligations under this Agreement; consent shall not be unreasonably withheld or delayed. Notwithstanding the foregoing, Verizun may, without prior notice, assign this Agreement, in whole or in part, to any Verizon affiliate or to any successor entity upon the merger, reorg,ni~ation, consolidation or sale of ail or substantially all of Verizon's assets associated with the equipment or Services provided pursuant to this Agreement. For purposes of this Section, "ait'fflate" shall mean a person or entity that directly or indirectly controls, is controlled by, or is under common control with Verizon. Any attempt to assign this Agreement in contravention of this Section shall be void and of no force and effect. 19. Governing Law. This Agreement shall be governed by the substantive laws of the State of Delaware, without regard to its choice of law principles 20. Non-Walver/Severability. Either party's failure to enforce any of the provisions of this Agreement or to exercise any right or option is not a waiver of any such provision, right, or option, and shall not affect the validity of this Agreement. Any waiver must be written and signed by the pardes. If any provision of this Agreement or the provision of any Service or equipment under the terms bereofis held to be illegai, invalid, or otherwise prohibited under applicable law or regulation in any State or jurisdiction, then this Agreement shall be consirued as if not contoining such provision or not requiring the provision of such invalid, illegal, or prohibited Service or equipment in such State or jurisdiction. 21. Publicity. Except as required by law, the parties shah keep this Agreement confidential and shall not disclose this Agreement or any of its terms without the other party's written consent. Neither party shall use any trademark, trade name, trade dress or any name, picture or logo which is commonly identified with the other party or its affiliates, or from which any association with such party or its affiliates may be inferred or implied, in any manner, including but not limited to advertising, sales promotions, press releases or otherwise, without the prior ~'itten permission of such party. Notwithstanding any contrary term in this Agreement, the parties may issue or permit issuance of a press release or other public statement concerning this Agreement, provided, however, that no such release or statement shall be published without the prior mutual consent of the parties. 22. Notices. All notices or other communication given or required by either party to the other under this Agreement shall be deemed to have been properly given if hand-delivered, mailed by certified mail return receipt requested, or sent by facsimile with confirmation of receipt or by overnight courier. Such notices and communications shall be deemed effective upon receipt. If to Verizon, notices should be sent to Verizon National Contract Repository, 700 Hidden Ridge, MC:HQW02L25, Irving, TX 75038, and if to Customer to the address specified on the cover sheet. Such address may be changed by either party by notice sent in accordance with this Section. 23. Limitation of Actions. A party may bring no action or demand for arbitration arising out of this Agreement more than two (2) years after the cause of action has accrued. The parties waive the right to invoke any different limitation on the bringing of actions under state law. 24. Independent Contractor Relationship; No Agency. Each party understands and agrees that it and its persounel are not agents or employees of the other pan'y, and that each party is an independent contractor hereunder for ah purposes and at all times. Neither party has the right or authority to, and shall not, assume or create any obligation of any nature whatsoever on behalf of the other party or bind the other party in any respect whatsoever. Each party shall be responsible for Rev. 2.9.05 Page 10 of 11 ~ ESC # 0148 System Agreement compliance with all laws, rules and regulations including, but not limited to employment, hours of labor, working conditions, workers' compensation, payment of wages, and payment of taxes associated with its performance under this Agreement. Each party shall indemnify, hold harmless and defend the other against any liabilities, claims, losses and damages (including costs, expenses and reasonable attorneys' fees) arising out of its failure to comply with any such laws, rules or regulations. 25. Interpretation. The Agreement shall not be constxued or interpreted for or against any party hereto because that party drafted or caused that party's legal representative to draft any of its provisions. 26. Headings. The Section headings used herein are for reference and convenience only and shall not enter into the interpretation of this Agreement. 27. Modifications. This Agreement may only be amended, changed, waived or modified in a written document that is signed by both parties. 28. Entire Agreement. This Agreement, together with any Statement of Work hereunder and any Exhibit hereto, constitutes the enti~e agreement between the parties pertaining to the subject matter herein and supereedes all prior oral and written proposals, correspondence and memoranda with respect thereto, and no representations, warranties, agreements or covenants, express or implied, of any kind or character whatsoever with respect to such subject matter have been made by either party to the other, except as expressly set forth in this Agreement. In the event of a conflict between this Agreement, a Statement of Work or an Exhibit, this Agreement shall prevail. IN WITNESS WltEREOF, the parties hereto have caused this Agreement to be duly executed. Each party warrants and represents that its respective representative whose signature appears below have been and are on the date of signature duly authorized to execute this Agreement and that each pax~y has the authority to enter into this Agreement. Verizon Network Integration Coro. By: Print Name: Title: Date: Cust°mer Name: ~n °f S°ut~ . o n~~pBrY{nt Name: /~'~' / Joshua Y. Horc Title: ,/ Supervisor Date: / Rev. 2.9.05 Page 11 ofll ~ ESC # 0148 Attachment A-Pricing Statement Customer Name: Town of Southhold Total Annual Value: $4,620.00 SiteWatch LAN Management Activation Fee: N/A Account Manager Name: Philip Kent SiteWatclglPTWatch Activation Fee: Total Activation Fee: N/A N/A Contract Term: Payment Method: X Twelve (12) Months X Monthly Twenty-Four (24) Months Annually Thirty-Six (36) Months Prepaid: __ Sixty (48) Months Other: Other: months MANAGED NETWORK SOLUTIONS (MNS) SERVICES SERVICE LOCATION MNS PACKAGE QTY DEVICE MODEL or MASTER PART NUMBER Town of S00thold;Town Hall 53095 Route 25, Southold, NYl1971-4642 Town of Southold-Recreation 970 Peconic Lane Peconic, NY 11958-1401 Town of Southold-Landfill 21565 Route 48 Cutchogue, NY 11935 Town of $outhold-Police 41405 Route 25 Peconic, NY 11958-1517 Town of Southold-Highway Dept 165 Peconic Lane Peconic, NY 11958-1411 Town of Southold-Human Services 750 Pacific St. Mattituck, NY 11952-1553 Town of Southold-Annexl 54375 Route 25 Southold, NY 11971 SW-FAULTMAN- 1 Cisco 2650 SMALL SW-FAULTMAN- 1 Cisco 2650 SMALL SW-FAULTMAN- ! Cisco 2650 SMALL SW-FAULTMAN- 1 Cisco 2650 SMALL SW-FAULTMAN- 1 Ci$co 2850 SMALL SW-FAULTMAN- 1 Cisco 2650 SMALL SW-FAULTMAN- 1 CISC02650XM SMALL MONTHLY PRICE $55.00 $55.00 $55.00 $55.00 $55.00 $55.00 $55.00 TOTAL MONTHLY VALUE: $385.00 MNS Pricing Statement 07/10/03