The URL can be used to link to this page

Browse Search

Home My WebLink About20060808.tiff RESOLUTION RE: APPROVE CUSTOMER PREMISES EQUIPMENT AGREEMENT FOR AUTO DIALER SYSTEM AND AUTHORIZE CHAIR TO SIGN - QWEST INTERPRISE AMERICA,INC. WHEREAS,the Board of County Commissioners of Weld County, Colorado, pursuant to Colorado statute and the Weld County Home Rule Charter, is vested with the authority of administering the affairs of Weld County, Colorado, and WHEREAS, the Board has been presented with a Customer Premises Equipment Agreement for an Auto Dialer System between the County of Weld, State of Colorado, by and through the Board of County Commissioners of Weld County,on behalf of the Department of Phone Services, and QWEST Interprise America, Inc., commencing upon full execution,with terms and conditions being as stated in said agreement, and WHEREAS,after review,the Board deems it advisable to approve said agreement, a copy of which is attached hereto and incorporated herein by reference. NOW,THEREFORE,BE IT RESOLVED by the Board of County Commissioners of Weld County,Colorado, that the Customer Premises Equipment Agreement for an Auto Dialer System between the County of Weld, State of Colorado, by and through the Board of County Commissioners of Weld County, on behalf of the Department of Phone Services, and QWEST Interprise America, Inc. be, and hereby is, approved. BE IT FURTHER RESOLVED by the Board that the Chair be, and hereby is, authorized to sign said agreement. The above and foregoing Resolution was,on motion duly made and seconded,adopted by the following vote on the 15th day of March, A.D., 2006. BOARD OF Cis NTY COMMISSIONERS 1'. / A ELD COUP;' , COLORADO ATTEST: � � I ."' ��•r /��Cw' nchesr Weld County Clerk to the Bob �� `"�`� T a' 04 C ck.Pci 1BY: 4U��Q 1 1 ��t1 % ® N ,David E. Long, Pro-Tem D uty CIe1k to the Boars ' 4.n. '/-A-✓' Willi- H. Jerke APP AS RM: 5t/k \\\:\m,D-- Robert . Masden` _ Attorney Glenn Vaad Date of signature: 31 2Ho 2006-0808 (3 0 PISCM0016 OA(-0 3 O Co • QWEST INTERPRISE AMERICA, INC.CPE AGREEMENT This Qwest Interprise America, Inc. CPE Agreement ("Agreement") is between Qwest Interprise America, Inc. ("Qwest") and Weld County ("Customer") and is effective on the date Qwest signs it ("Effective Date"). Customer's current address, facsimile number, and person designated for notices are: Susan Quick, 915 10` Street, Greeley, CO 80632, Fax 970-352-0242. Capitalized terms in this Agreement are defined where they appear. 1. Products and Services General Terms and Conditions. Qwest will provide, and Customer will purchase, customer premises equipment ("CPE") and/or software license offerings (collectively, "Products") and CPE maintenance and installation services ("Services") under this Agreement and the Purchase Orders submitted hereunder. "Purchase Order" means Product and Service order request forms issued by Owest or a purchase order issued by Customer. If the Purchase Order is issued by Customer, the preprinted terms contained in such Purchase Order will not amend, modify or supplement this Agreement in any way whatsoever, notwithstanding any provisions in the Purchase Order to the contrary. Customer may be required to sign a rider that will supplement the terms applicable to a Product or Service("Rider"). 2. Software. Software will be licensed or sublicensed to Customer according to the licensing agreement accompanying such software. If the software is not accompanied by a license, Qwest grants a personal, nonexclusive, limited sublicense to Customer to use copies of the software in object code form only. The license is effective upon delivery for drop-ships or upon installation, and extends only to Customer's own use of such software and only on or with the designated Product. Software must be held in confidence and may not be reproduced unless specifically authorized by the software licensor. 3. Delivery. Qwest will make reasonable efforts to provide the Product and, when applicable, the labor necessary to complete Qwest's obligations by the In-Service Date or delivery date, as specified on the Purchase Order. "In-Service Date" means the date on which Qwest has materially performed its obligations for installation with respect to a particular Purchase Order. 4. Acceptance. Customer will notify Qwest in writing of any portion of a Product which is unacceptable. Failure to notify Qwest within 10 days of the In-Service Date or actual delivery date, as applicable,will constitute final acceptance. Any Product installed by Qwest is considered acceptable if it is installed and operates materially in accordance with the manufacturer's specifications. Qwest will have the right to correct any portion of the Product that has been rejected. Any portion that is not rejected and which is functionally divisible may be invoiced separately. Moves and changes are considered accepted when the described work is materially completed. 5. Title and Invoicing. Ownership and all risk of loss,except for damage caused by Qwest, its agents or subcontractors,of Products will transfer to Customer upon their delivery to Customer. Qwest will invoice Customer for such Products upon delivery confirmation or as outlined in a Purchase Order accepted by Qwest. 6. Expedites, Changes, Cancellations, Returns, and Progress Billings. All expedites, changes, and/or cancellations must be in writing, and are subject to Qwest's Customer-Initiated Change Charge ("CICC") Policy, and all Product returns are subject to Qwest's Return Material Authorization ("RMA") Policy. The CICC and RMA are attached hereto and made a part of this Agreement (the latest versions of which are posted at http://www.qwest.com/legal/cpe.html). Qwest may institute payment terms appropriate for individual Purchase Orders upon prior notification, including: (a) orders exceeding $500,000; (b) orders exceeding 120 days calculated from the order acceptance date to the In-Service Date; and (c) for portions of orders completed and not rejected that are functionally and/or geographically divisible. 7. Lease Option. If Customer elects the"lease"option on a Purchase Order, Customer must lease and pay for the Product pursuant to a separate lease agreement with Qwest Technology Finance("Lease")and obtain Qwest Technology Finance credit approval. Qwest will provide the Product to Customer and receive payment for the Product from Qwest Technology Finance. If Customer fails to execute such Lease or comply with the Lease, including without limitation, any requirements for final acceptance of the CPE, which results in Owest Technology Finance's refusal to pay Qwest in full for the CPE,Customer agrees to pay Qwest in full for the CPE. 8. Payment/Billing for Services. The charges for Products or Services are in a Purchase Order accepted by Qwest. Charges are due and payable upon Customer's receipt of the invoice. Any amount not paid within 30 days after invoice date will be subject to late interest at the lesser of the rate of 11/2%per month or the highest rate permitted by applicable law. Customer must also pay Owest any applicable Taxes assessed in connection with Customer's Services. 'Taxes"means foreign,federal, state and local taxes, surcharges, and other similar charges. Qwest may in its sole discretion modify the payment terms or require other reasonable assurance of payment if Customer has failed to pay any invoice when due or there is a material and adverse change in Customer's financial condition. The maintenance charges set forth in the Purchase Order for Data, Voice (which includes Voice over Internet protocol ("VoIP")), and/or Video CPE Maintenance Services will be billed and payable on a monthly, quarterly, or annual basis as indicated on the Purchase Order. Payment will be due and payable upon Customer's receipt of the invoice(s) throughout the term of the Purchase Order. Qwest may cease providing Services if payment is not made when due. 9. Term. This Agreement will commence on the Effective Date, and continue until terminated expressly by a party as described herein. Termination will not affect obligations under Purchase Orders accepted prior to the effective date of termination, and this Agreement will remain in effect as to such obligations in the event it would otherwise have terminated. 10. Termination. Either party may terminate this Agreement at its convenience upon 30 days prior written notice to the other party or for Cause. "Cause" means the failure of a party to perform a material obligation under this Agreement, which failure is not remedied: (a)in the event of a payment default by Customer, within five days of separate written notice from Qwest notifying Customer of such default; or(b) in the event of any other material breach, within 30 days of written notice (unless a different notice period is specified in this Agreement). If Customer or Qwest terminates this Agreement or any Purchase Orders, then Customer will remain liable for charges accrued as of the termination date. 11. Termination Charges-Services. If, prior to the conclusion of their term, any Purchase Orders accepted hereunder by Qwest are terminated either by Customer for any reason other than Cause, or by Qwest for Cause, Customer will pay all accrued and unpaid OMR 1111278 Page 1 Copyright©2005 Qwest.All Rights Reserved CONFIDENTIAL v1.112905 A CC pre cP • QWEST INTERPRISE AMERICA, INC. CPE AGREEMENT charges for Service provided through the effective date of such termination plus Termination Charges. Termination Charges will be waived if Customer and Qwest have agreed to a new Purchase Order and/or agreement with a value equal to, or greater than, the balance of the terminated Purchase Order and specifically designed to offset the terminated Purchase Order. 'Termination Charges" are calculated as follows: ((monthly rate for Service(s)terminated)x(20%)x(months remaining in the term of the Service)). 12. Installation/Labor Conditions and Safety Compliance. Customer's purchase of installation, maintenance or other labor hereunder, is subject to, and controlled by, Qwest's Installation/Labor, Safety Compliance, and CPE Maintenance Service Terms and Conditions ("Ts&Cs") which are attached hereto and made a part of this Agreement (the latest version of which is posted at http://www.qwest.com/legal/cpe.html). Customer is responsible for informing Qwest of the existence, location and condition of any Hazardous Substances that may be in or around the Qwest work area. "Hazardous Substance" means a substance regulated by any safety regulation and includes, without limitation, asbestos. Customer will indemnify and hold Qwest harmless from any fines or other liability of Owest arising from Customer's failure to inform Qwest of hazardous substances. 13. Trade-In. If Customer trades in any equipment through Qwest under any CPE provider terms, Customer will indemnify and hold Qwest harmless from any liabilities, including charges imposed on Qwest, arising from Customer's failure to comply with such terms. 14. Fraudulent Use. Qwest may provide information relative to equipment operation and features, and recommendations for protecting the equipment against toll fraud and unauthorized access, however, Customer is solely responsible for the security of its own equipment and services. Qwest and its Affiliates and subcontractors are not responsible for damages relating to unauthorized charges, unauthorized access, or other misuse of Customer's equipment or services. "Affiliate" means any entity controlled by, controlling, or under common control with a party. 15. Warranties. 15.1 Product Warranties. Qwest: (a) is not a manufacturer of any Product; (b) is not a party to any agreement between Customer and a CPE provider for services provided directly by the CPE provider to Customer (e.g., maintenance and extended warranty services); and (c)will not be bound by or liable for any representation,warranty, or promise made by a CPE provider. Qwest disclaims any liability for loss, damage or injury to any party as a result of any defects, latent or otherwise, in any Product. Qwest will pass- through and assign to Customer all applicable warranties provided by the manufacturer or CPE provider of the applicable Product to the extent that such manufacturer or CPE provider permits such pass-through and assignment.Any costs of such assignment will be borne by Customer. All Products purchased from Qwest, including any Product that is a part of a system previously purchased from and installed by Owest which is still under warranty, are subject to the terms and conditions set forth in the manufacturer's or CPE provider's warranty, end-user license or agreement applicable to such Product, with no warranty of any kind from Qwest. Implementation of any Product warranty is solely the responsibility of Customer and any Qwest support of such warranty will be provided at the discretion of Qwest. Information about Customer may be provided to the original manufacturer of the Products for registration and warranty purposes and such information will not be treated as Confidential Information of Customer under this Agreement. 15.2.Disclaimer of Warranties. EXCEPT AS MAY BE SPECIFICALLY SET FORTH IN THIS AGREEMENT, THE SERVICES AND PRODUCTS ARE PROVIDED WITHOUT WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION,WARRANTIES OF TITLE, NONINFRINGEMENT, MERCHANTABILITY, OR FITNESS FOR A PARTICULAR PURPOSE. NO ADVICE OR INFORMATION GIVEN BY QWEST, ITS AFFILIATES, AGENTS, OR CONTRACTORS OR THEIR RESPECTIVE EMPLOYEES WILL CREATE ANY WARRANTY. Owest is not responsible for any Product defects or damages resulting from mishandling, abuse, misuse, accident, electrical power surges or current fluctuations, Force Majeure Events, improper storage or operation, including use in conjunction with equipment electrically or mechanically incompatible with or of inferior quality to the supplied equipment or failure to maintain the environmental conditions specified by the manufacturer or licensor. "Force Majeure Event" means an unforeseeable event beyond the reasonable control of that party, including without limitation: act of God, fire, flood, labor strike, sabotage,fiber cut not caused by Qwest, acts of terror, material shortages or unavailability,government laws or regulations, war or civil disorder,or failures of suppliers of goods and services. 16. Limitation of Liability. (a) NEITHER PARTY, ITS AFFILIATES, AGENTS, OR CONTRACTORS WILL BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, RELIANCE, PUNITIVE, OR CONSEQUENTIAL DAMAGES OR FOR ANY LOST PROFITS OR REVENUES OR LOST DATA OR COSTS OF COVER RELATING TO THE SERVICES, PRODUCTS OR THIS AGREEMENT, REGARDLESS OF THE LEGAL THEORY UNDER WHICH SUCH LIABILITY IS ASSERTED. QWEST'S TOTAL AGGREGATE LIABILITY ARISING FROM OR RELATED TO THIS AGREEMENT WILL IN NO EVENT EXCEED (i) FOR CLAIMS ARISING OUT OF CPE MAINTENANCE SERVICE, ONE MONTH'S CPE MAINTENANCE SERVICE CHARGE FOR THE AFFECTED COMPONENT, OR (ii) FOR ANY OTHER CLAIMS, 10% OF THE PRODUCTS/MATERIALS CHARGE SET FORTH IN THE PURCHASE ORDER RELATING TO THE AFFECTED PRODUCT. EACH PARTY IS RESPONSIBLE FOR ACTUAL, PHYSICAL DAMAGES IT DIRECTLY CAUSES TO THE OTHER PARTY IN THE COURSE OF ITS PERFORMANCE UNDER THIS AGREEMENT, LIMITED TO DAMAGES RESULTING FROM PERSONAL INJURY OR DEATH AND LOSS OR DAMAGE TO A PARTY'S PERSONAL TANGIBLE PROPERTY ARISING FROM THE NEGLIGENT ACTS OR OMISSIONS OF THE LIABLE PARTY. Notwithstanding the foregoing, the limitation of liability in this Section will not apply to: (iii) a party's indemnification obligations; and (iv) Customer's payment obligation for all charges under this Agreement, including without limitation, Product and Service charges,Taxes, interest, and Termination Charges. (b) Any claim or dispute out of or relating to this Agreement must be brought within two years after the cause of action arises. 17. Confidentiality; Publicity. Neither party will, without the prior written consent of the other party: (a) issue any public announcement regarding, or make any other disclosure of the terms of, this Agreement or use the name or marks of the other party or its Affiliates; or (b) disclose or use (except as expressly permitted by, or required to achieve the purposes of, this Agreement) the OMR 1111278 Page 2 Copyright©2005 Qwest.All Rights Reserved CONFIDENTIAL v1.112905 QWEST INTERPRISE AMERICA, INC.CPE AGREEMENT Confidential Information of the other party. Such consent may only be given on behalf of Qwest by its Legal Department. A party may disclose Confidential Information if required to do so by a governmental agency, by operation of law, or if necessary in any proceeding to establish rights or obligations under this Agreement, provided that the disclosing party gives the non-disclosing party reasonable prior written notice. "Confidential Information" means any information that is not generally available to the public, whether of a technical, business, or other nature and that: (c) the receiving party knows or has reason to know is confidential, proprietary, or trade secret information of the disclosing party; and/or (d) is of such a nature that the receiving party should reasonably understand that the disclosing party desires to protect such information against unrestricted disclosure. Confidential Information will not include information that is in the public domain through no breach of this Agreement by the receiving party or is already known or is independently developed by the receiving party. 18. Dispute Resolution; Governing Law. Any dispute arising out of, or relating to, this Agreement will be settled by arbitration to be conducted in accordance with the Judicial Arbitration and Mediation Services ("JAMS") Comprehensive Arbitration Rules. The Federal Arbitration Act, 9 U.S.C. Sections 1-16, not state law, will govern the arbitrability of disputes. This Agreement will otherwise be governed by the laws of the State of New York without regard to its choice of law principles. The costs of the arbitration, including the arbitrator's fees,will be shared equally by the parties; provided, however, that each party will bear the cost of preparing and presenting its own claims and/or defenses(including its own attorneys'fees). The venue for arbitration will be designated by the party not initiating the action with the exception of any billing collection disputes, which will be conducted in a location designated by Qwest or Denver, Colorado. The venue location designated must be in a metropolitan area in which JAMS offers its dispute resolution services. A single arbitrator engaged in the practice of law, who is knowledgeable about the subject matter of this Agreement,will conduct the arbitration. The arbitrator is bound to apply and enforce the terms of this Agreement. The arbitrator's decision will be final, binding, and enforceable in a court of competent jurisdiction. If a party is required to enforce compliance with this Section (including nonpayment of an award),then the noncomplying party must reimburse all of the costs and expenses incurred by the party seeking such enforcement (including reasonable attorneys'fees). 19. Notices. Except as otherwise provided herein, all required notices must be in writing and sent to Qwest at 1801 California Street, Suite 900, Denver,Colorado 80202; Facsimile#: (888)778-0054;Attn.: Legal Department, and to Customer at its then current address as reflected in Qwest's records;Attn.: General Counsel or other person designated for notices. Except as otherwise provided herein, all notices will be deemed given: (a) when delivered in person to the recipient named above; (b) three business days after mailed via regular U.S. Mail; (c) when delivered via ovemight courier mail; or (d) when delivered by facsimile so long as duplicate notification is also sent in the manner set forth in subsection (b). 20. General. Customer may not assign this Agreement or any of its rights or obligations under this Agreement without the prior written consent of Qwest,which consent will not be unreasonably withheld. This Agreement is intended solely for Qwest and Customer and it will not benefit or be enforceable by any other person or entity, including without limitation, End Users. "End Users"means Customer's members, end users, customers, or any other third parties who utilize or access the Products and Services. If any term of this Agreement is held unenforceable, such term will be construed as nearly as possible to reflect the original intent of the parties and the • remaining terms will remain in effect. Neither party's failure to insist upon strict performance of any provision of this Agreement will be construed as a waiver of any of its rights hereunder. All terms of this Agreement that should by their nature survive the termination of this Agreement will so survive. In the event of a conflict in any term of any documents that govern the provision of Products or Services hereunder, the following order of precedence will apply in descending order of control: this Agreement, any Rider, and any Purchase Order. Neither party will be liable for any delay or failure to perform its obligations hereunder if such delay or failure is caused by a Force Majeure Event. This Agreement and any Purchase Orders accepted hereunder constitute the entire agreement between Customer and Qwest with respect to the subject matter hereof, and supersede all prior oral or written agreements or understandings relating to the subject matter hereof. Except for Service modifications initiated by Qwest all amendments to this Agreement must be in writing and signed by the parties'authorized representatives. Customer will not be eligible for any discounts or promotional offers other than those specifically set forth in an executed Purchase Order or promotion term sheet. Qwest reserves the right at any time to reject any handwritten change to this Agreement. CUSTOMER: LIZ COUNTY QWEST INTERPRISE AMERICA,INC. By: 1U/Ad By: n(E-7) ��sc=-/I-e Name: MC J. Geile Name:Susan Baker Title: Chair. Board of County Commissioners Title: Lead Offer Manaaement Analyst Date: 03/15/2005 Date:2/27/06 Organizational identification number: 84-6000-813 ATTESTING TO BOARD OF COUNTY Ians.`w COMMISSIONER SIGNATURES ONLY � 1'' atz I ILa�• ATTEST: ��'//// 1W I( ' WE OUNTY CLERT O/T/H/E BOARD r `4 BY: ��{" . . i V1 e' 10.2( • DEP TY CLE TO THE BOOJ\HD -r•rr OMR 1111278 Page 3 Copyright©2005 Qwest.All Rights Reserved CONFIDENTIAL v1.112905 owe -erred' Hello