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Home My WebLink About20161386.tiff RESOLUTION RE : APPROVE MASTER AGREEMENT FOR ANNUAL RECORDING MAINTENANCE AND SUPPORT AND AUTHORIZE CHAIR TO SIGN - NICE SYSTEMS, 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 Master Agreement for Annual Recording Maintenance and Support 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 Public Safety Communications . and NICE Systems . Inc. . commencing upon full execution of signatures and ending , December 31 , 2018, with automatic renewal and with further terms and conditions being as stated in said agreement . and WHEREAS, after review, the Board deems it advisable to approve said master 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 Master Agreement for Annual Recording Maintenance and Support 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 Public Safety Communications , and NICE Systems . 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 25th day of April . A. D . . 2016. BOARD OF COUNTY COMMISSIONERS WELD COUNTY . COLORADO ATTEST: Jello• i ' IniAnt Mike Freeman . Chair Weld County Clerk to the Board � �� Seaq.S_ Conway. Pro-Tem BY. N. - y- Deputy Clerk to the Board , �'`� az ‘ -/._t -' .p • J it A. Cozad 361ti0,44 g ttisvAPP V AS r , ;41�,,Dn. 4'sir : ara Kirkmey r 7 5Sfrir ek ��1 1 r � v� eseN Qo my Attorney .. 1, MOTh-C-nr- Steve Moreno Date of signature: d/ilf/l-,5 CG ; (nu) 6 -O-3 -/ 6 2016- 1386 CM0024 Stephanie Frederick From: Esther Gesick Sent: Tuesday, April 19, 2016 10:34 AM To: Stephanie Frederick Subject: FW: Lease Agreement/Purchase Agreement for Keensburg Tower Attachments: Keensburg RE3J Lease Agreement 2016.pdf; Keensburg Tower Purchase Agreement 2016.pdf; Nice Annual Maintenance Agreement 4-19-2016.pdf; Nice Annual Maintenance Agreement 4-19-2016 - last page.pdf From: Mike Wallace Sent:Tuesday, April 19, 2016 9:19 AM To: Esther Gesick<egesick@co.weld.co.us> Subject: Lease Agreement/Purchase Agreement for Keensburg Tower Esther, The attached three documents were approved the Board of County Commissioners in a work session 04-18-16. 1. Weld County School District RE3J land lease for ground that the Keensburg tower sits on. 2. Bill of Sale from Sun Microwave Inc. for the purchase of the 199'tower located on the RE3J's property jok'3. NICE Recording Annual Maintenance Contract for support and maintenance for all audio recording in the 9- 1-1 centers These agreements were reviewed and approved by Frank Haug—Assistant County Attorney. Let me know if you need anything else, Thanks Michael R Wallace, ENP,CMCP Weld County Director of Public Safety Communications 1551 N 17th Ave Suite2 Greeley, CO 80631 Office:970-304-6455 Email: mrwallace@weldgov.com , fi0F'J" 1 Communications Confidentiality Notice:This electronic transmission and any attached documents or other writings are intended only for the person or entity to which it is addressed and may contain information that is privileged,confidential or otherwise protected from disclosure.If you have received this communication in error,please immediately notify sender by return e-mail and destroy the communication.Any disclosure,copying,distribution or the taking of any action concerning the contents of this communication or any attachments by anyone other than the named recipient is strictly prohibited. 2016-1386 1 MASTER RELATIONSHIP AGREEMENT This Master Relationship Agreement is entered into as of January Is`, 2016 ("Effective Date") by and between NICE Systems, Inc. with an office at 461 From Road, 3`d Floor, Paramus, NJ 07652 ("Vendor"), and Weld County Public Safety Communications, by and through the Weld County Board of County Commissioners, with an office at 1551 N 17th Ave, Greeley,CO 80631 ("Customer"). 1. Definitions. For purposes of this Agreement,the terms listed below shall have the following meanings: 1.1 "Affiliate" means, when used with respect to a Party, any legal entity controlled by, controlling, or under common control with that Party, where "control" (and its derivatives) means: (a) the possession, directly or indirectly, of the power to direct or cause the direction of the management and policies of a corporation, person, or other entity through the ownership of voting securities; or(b) direct or indirect ownership in the aggregate of fifty percent(50%)or more of any class of voting or equity interests in the other corporation,person,or entity. 1.2 "Agreement"means,collectively,this Master Relationship Agreement,and its Attachments. 1.3 "Attachmentb" mean the supplemental documents to this Master Relationship Agreement signed by the Parties and containing additional terms and conditions that will govern the acquisition of a particular type of Product or Service. 1.4 "Confidential Information"means with respect to either Party,any information disclosed by such Party(the "Disclosing Party") to the other Party(the "Receiving Party") in connection with this Agreement, on or after the Effective Date of this Master Relationship Agreement, which is either marked as confidential (or words of similar import) or is of a nature or disclosed in such a manner as would put a reasonable person on notice as to the confidential or proprietary nature of the information. Notwithstanding the foregoing, if the Parties entered into a confidentiality/non-disclosure agreement prior to the Effective Date,the information disclosed under such agreement shall be deemed to be Confidential Information hereunder, 1.5 "Documentation" means the applicable specifications and user documentation accompanying Products or a Vendor software-as-a-service offering,as may be further defined in an Attachment. 1.6 "Equipment" means hardware sold by Vendor to Customer pursuant to an Attachment. 1.7 "Fees" means collectively,the fees for Products and Services. 1.8 "Master Relationship Agreement" means the terms and conditions contained in Sections 1 through 10 of this document,but excluding any Attachments or Statements of Work. 1.9 "Party" means either Vendor or Customer, individually as the context indicates; and "Parties" means Vendor and Customer,collectively. 1.10 "Products" means collectively the Equipment and Software, except that all references in this Agreement to purchases of Software are intended by the Parties to mean purchases of licenses to Software. 1.11 "Purchase Order" means a transactional document that Customer may issue to Vendor to purchase particular Products or Services under this Agreement. Each Purchase Order shall be governed by this Agreement and shall set forth details such as the specific Products including, in the case of Software, the number and type of licenses and Services being purchased and the Fees for same. Other than pricing and quantities for Products and Services included in the Vendor quotation to which a specific Purchase Order relates, any terms and conditions included in a Purchase Order shall be of no force and effect, and no such term or condition shall be binding upon Vendor. 1.12 "Services" means the consulting, installation, implementation, training, maintenance, hosting, software-as-a- sery ice or other services to be provided by Vendor pursuant to this Agreement as may be set forth in a SOW or an Attachment. 1.13 "Software"means software provided to Customer pursuant to an Attachment. I Rev 020/6 { 2S 1.14 "Statement of Work"or"SOW"means a signed writing executed by Vendor and Customer pursuant to this Agreement, which describes, among other things, certain Services to be provided by Vendor to Customer under an applicable Attachment. Upon execution by both Parties,each Statement of Work will be deemed to be a part of this Agreement. 2. Ordering Procedure. The Parties agree that the Agreement governs transactions whereby Customer may procure Products and Services from Vendor by submitting a Purchase Order to Vendor under an applicable Attachment. Each purchase of Services may also be evidenced by a SOW. 3. Invoicing,Payment Terms,and Taxes. 3.1 Vendor shall invoice Customer as provided in the applicable Attachment. Customer shall pay to Vendor all Fees or other costs due hereunder in U.S. dollars,and in full within thirty(30) days following Customer's receipt of Vendor's invoice. With respect to any amount due to Vendor which is not paid within thirty(30)days following the date of Customer's receipt of Vendor's invoice, Vendor may apply interest at the rate of one and one-half percent(1!/z%)per month, or such lesser amount required by law,assessed from the due date through the date of payment. 3.2 Customer shall, in addition to the other amounts payable under this Agreement, bear and pay all sales and other taxes, federal, state or otherwise, however designated that are levied or imposed by reason of the transactions contemplated hereunder, but excluding taxes on Vendor's income. Without limiting the foregoing, if any such taxes are imposed upon and paid by Vendor, Customer shall reimburse Vendor within thirty (30) days of receipt of an invoice from Vendor for such amount. If, at any time, Customer claims that its purchase of Products or Services hereunder is exempt from any taxes, it shall be Customer's responsibility to provide Vendor with the appropriate tax exemption certificate(s). In the absence of valid proof of exemption, Vendor reserves the right to charge Customer for, and Customer agrees to pay, the applicable taxes. 4. Warranty Disclaimer. VENDOR DOES NOT WARRANT THAT ANY INFORMATION, COMPUTER PROGRAM, VENDOR'S EFFORTS OR ANY PRODUCTS OR SERVICES PROVIDED BY VENDOR WILL FULFILL ANY OF CUSTOMER'S PARTICULAR PURPOSES OR NEEDS, NOR DOES VENDOR WARRANT THAT THE OPERATION OF THE PRODUCTS OR ACCESS TO THE SERVICES WILL BE UNINTERRUPTED OR ERROR-FREE. EXCEPT AS EXPRESSLY STATED IN AN ATTACHMENT, NO WARRANTIES, EXPRESS OR IMPLIED, ARE MADE BY VENDOR TO CUSTOMER, INCLUDING ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT,WHICH ARE SPECIFICALLY EXCLUDED. 5. Confidential Information. 5.1 The Receiving Party shall keep the Disclosing Party's Confidential Information confidential and secure and shall use at least the same standard of care to protect the Disclosing Party's Confidential Information as the Receiving Party employs for the protection of its own proprietary information of a similar nature,but in no event less than a reasonable standard of care. The Receiving Party will not disclose the Disclosing Party's Confidential Information to any third party and shall not use or reproduce in any form the Disclosing Party's Confidential Information, except as required to exercise its rights and discharge its responsibilities set forth in this Agreement. The Receiving Party shall promptly notify the Disclosing Party in writing of any actual or suspected loss or unauthorized use, disclosure, or access of the Disclosing Party's Confidential Information of which it becomes aware, and take all steps necessary to limit, stop, or otherwise prevent such loss or unauthorized use,disclosure,or access. 5.2 The term "Confidential Information" does not include any information as to which the Receiving Party is able to demonstrate: (a) is. or after the date of disclosure under this Agreement becomes,generally available to the public other than as a result of any actions or omissions of the Receiving Party; (b)was already known by the Receiving Party prior to the time of disclosure under this Agreement; (c) was disclosed to the Receiving Party on a non-confidential basis by a third party that did not owe an obligation of confidentiality to the Disclosing Party; or (d) is developed by the Receiving Party, independently without use of or reference to the Disclosing Party's Confidential Information. 5.3 The Receiving Party will restrict the possession, knowledge, and use of the Disclosing Party's Confidential Information to its and its Affiliates' officers, directors, employees, professional advisors, or subcontractors (collectively, "Representatives")who have a need to know such Confidential Information for purposes directly related to the exercise of its rights and discharge of its responsibilities as set forth in this Agreement. Prior to such disclosure, the Receiving Party will inform such Representatives of the confidential nature of the Disclosing Party's Confidential Information and the non- disclosure requirements and limitations on use set forth herein. Without limiting the effect of the previous sentences in this Section 5.3, the Receiving Party shall take reasonable actions, legal or otherwise, necessary to cause its Representatives to 2 Re, 5 comply with the provisions of this Section 5 and to prevent any unauthorized disclosure of the Disclosing Party's Confidential Information by any of them. The Receiving Party shall be responsible for the acts and omissions of its Representatives with respect to the Disclosing Party's Confidential Information. 5.4 Notwithstanding anything to the contrary contained herein, the Receiving Party may disclose Confidential Information of the Disclosing Party pursuant to an order made pursuant to applicable law, regulation or legal process, provided that(a) to the extent permitted under applicable law, the Receiving Party gives the Disclosing Party prompt written notice of such order so that the Disclosing Party has an opportunity to seek a protective order, confidential treatment, or other appropriate remedy to such order; (b) the Receiving Party provides the Disclosing Party with all reasonable assistance, at the Disclosing Party's expense, in opposing such required disclosure or seeking a protective order or confidential treatment for all or part of such Confidential Information; and (c) the Receiving Party discloses only such portion of the Confidential Information as is either permitted by the Disclosing Party or required by the court, tribunal, governmental agency or other authority,subject to any protective order or confidential treatment obtained by the Disclosing Party. 5,5 Each Party acknowledges that the unauthorized disclosure or use of the Disclosing Party's Confidential Information by the Receiving Party will irreparably damage the Disclosing Party in such a way that adequate compensation could not be obtained from monetary damages alone in an action at law. Accordingly, the actual or threatened unauthorized disclosure or use of any Confidential Information shall give the Disclosing Party the right to seek injunctive relief restraining such unauthorized disclosure or use, without the necessity of proving actual damages, in addition to any other remedy otherwise available to the Disclosing Party. 5.6 Each Party is advised that as a public entity, Weld County must comply with the provisions of C.R.S. 24-72- 201, et seq.,with regard to public records. 6. Indemnification. 6.1 Vendor shall indemnify, defend, and hold harmless Customer from and against any loss, cost, expense, or liability("Losses") resulting from or arising out of a claim brought by a third party ("Third Party Claim") against Customer to the extent that such Third Party Claim alleges the infringement of such third party's U.S.patent or copyright by a Product or Service. The foregoing indemnity shall not apply if the infringement arises out of: (a) specifications or designs furnished by Customer and implemented by Vendor at Customer's request; (b) the Product or Service being modified by, combined with, added to, interconnected with or used with any equipment, apparatus, device, data, software or service not supplied or approved by Vendor in writing; (c)the modification to a Product or Service by any person or entity other than Vendor; or(d) use of a Product or Service other than in accordance with its Documentation. 6.2 If a Third Party Claim for which Customer is entitled to be indemnified under Section 6.1 above has occurred, or in Vendor's opinion is likely to occur, Vendor shall, at Vendor's expense, do one of the following: (a)procure for Customer the right to continue using the affected Product or Service; (b) replace with non-infringing alternates or modify the relevant Product or Service so that it becomes non-infringing but its functionality after modification is substantially equivalent: (c)accept the return of the affected Product, and refund to Customer the Fees for the affected Product depreciated or amortized by an equal annual amount over a three (3) year period beginning from the date of shipment of the affected Product; or(d) cease providing the Service and refund any prepaid Fees applicable to the period after the Service has ceased. The collective obligations of Vendor pursuant to Section 6.1 and this Section 6.2 state the sole and exclusive liability of Vendor, and Customer's sole and exclusive remedy,with respect to intellectual property infringement or misappropriation. 6.3 Promptly after Customer obtains knowledge of the existence or commencement of a Third Party Claim for which it is entitled to be indemnified under Section 6.1 above, Customer will notify Vendor of such Third Party Claim in writing, provided, however, that any failure to give such notice will not waive any rights of Customer except to the extent that the rights of Vendor are actually prejudiced or liability increased thereby. Vendor will have exclusive control of the defense and settlement of such Third Party Claim; provided, however, that Customer may join in the defense and settlement of such Third Party Claim and employ counsel at its own expense, and will reasonably cooperate with Vendor in the defense and settlement of such Third Party Claim. Vendor may settle any Third Party Claim without Customer's written consent unless such settlement: (a) does not include a release of all covered claims pending against Customer; (b) contains an admission of liability or wrongdoing by Customer;or(c) imposes any obligations upon Customer other than an obligation to cease using any infringing items. 3 7. Limitation of Liability. 7.1 SUBJECT TO SECTION 7.2 BELOW, IN NO EVENT WILL EITHER PARTY BE LIABLE TO THE OTHER PARTY FOR:(a)ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL, PUNITIVE OR EXEMPLARY DAMAGES OR LOSSES, INCLUDING LOSS OF USE., LOSS OF OR DAMAGE TO RECORDS OR DATA, COST OF PROCUREMENT OF SUBSTITUTE GOODS, SERVICES OR TECHNOLOGY, LOST REVENUE AND/OR PROFITS, SUSTAINED OR INCURRED REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT, TORT OR OTHERWISE, INCLUDING NEGLIGENCE, STRICT LIABILITY, INDEMNITY (EXCEPT AS EXPRESSLY PROVIDED IN THE AGREEMENT) OR OTHERWISE, AND WHETHER OR NOT SUCH DAMAGES WERE FORESEEN OR UNFORESEEN AND REGARDLESS OF WHETHER SUCH PARTY HAD RECEIVED NOTICE OR HAD BEEN ADVISED, OR KNEW OR SHOULD HAVE KNOWN, OF THE POSSIBILITY OF SUCH DAMAGES OR LOSSES; OR (b) DIRECT DAMAGES IN EXCESS OF THE AMOUNTS PAYABLE UNDER THE PURCHASE ORDER OR SOW UNDER WHICH SUCH LIABILITY AROSE. 7.2 The limitations in Section 7.1 above shall not apply to: (a)damages occasioned by the breach by either Party, including by their Representatives, of its obligations of confidentiality under Section 5 above; (b) Vendor's indemnification obligations pursuant to Section 6 above;or(c)either Party's indemnification obligations as set forth in an Attachment. 8. Term and Termination. 8.1 Subject to the terms and conditions of this Agreement, the term of this Master Relationship Agreement shall commence on the Effective Date and continue until terminated in accordance with this Section 8 (the "Term"). Unless otherwise provided herein or in an Attachment, the termination of this Master Relationship Agreement will not operate to terminate any existing Attachments and their related Purchase Orders and SOWs, and the terms of this Master Relationship Agreement shall continue to govern such Attachment and their related Purchase Orders and SOWs until completion or the earlier termination of such Purchase Orders and SOWs in accordance with this Agreement. 8.2 Either Party may terminate this Master Relationship Agreement, an Attachment, Purchase Order or SOW for cause, upon written notice to the other Party setting forth the effective date of termination, if the other Party fails to cure a material breach of this Master Relationship Agreement, the Attachment, Purchase Order or SOW, respectively, within thirty (30)days after receiving notice thereof. The termination of an Attachment, Purchase Order or SOW by either Party pursuant to this Section 8.2 shall not affect any other Attachment, Purchase Order or SOW. Either Party has the right to terminate this Agreement(excluding any order for Services),with or without cause on thirty(30)days prior written notice. 8.3 This Agreement will terminate,effective upon delivery of written notice by either Party to the other Party:(a) upon the institution of insolvency, receivership,or bankruptcy proceedings or any other proceedings for the settlement of debts of the other Party: (b) upon the making of an assignment for the benefit of creditors by the other Party; or (c) upon the dissolution of the other Party. 8.4 Upon the written request of the Disclosing Party, the Receiving Party shall: (a)promptly return to the Disclosing Party such of its Confidential Information (and all copies thereof) as the Disclosing Party may request, or upon written request from the Disclosing Party, destroy such Confidential Information and provide the Disclosing Party with written certification of such destruction; and(b)cease all further use of such Confidential Information. 8.5 Any provision of this Master Relationship Agreement, any Attachment, SOW or Purchase Order that contemplates performance or observance subsequent to a termination of the Attachment, SOW or Purchase Order, and any other provision that by its nature may reasonably be presumed to survive any termination of this Master Relationship Agreement,any Attachment, SOW or Purchase Order shall survive its termination. 9. Notices. With respect to notices permitted or required under this Agreement related to the following matters, such notices must be in writing and delivered by personal delivery, by registered or certified mail (return receipt requested), or by internationally recognized overnight delivery service:(a)notices of breach;(b)notices of termination;and(c)notices regarding actual or potential legal action, including claims subject to indemnification hereunder. Notices will be deemed given: (i)on the date of delivery when delivered personally, (ii)one(I) business day after deposit for next day delivery with an internationally recognized overnight delivery service, and (iii) on the date of delivery when mailed by registered or certified mail (return receipt requested). Notices other than those described in Sections 9(a) through 9(c) may also be delivered by facsimile transmission or electronic mail, and will be deemed given upon acknowledgement of receipt of facsimile transmission or upon 4 av I< personal electronic reply acknowledging receipt, whichever is applicable. Notices will be sent to the addresses below or to such other address as either Party may specify in writing: To Vendor: To Customer: NICE Systems, Inc. Weld County Public Safety Communications Address:461 From Road,3rd Floor, Paramus,NJ 07652 Address: 1551 N 17th Ave, Greeley,CO 80631 Fax:(201)964-2610 Fax:(970)304-6501 Email: americaslegal@nice.com Email: mrwallace@weldgov.com Attention: Legal Department Attention: Director of Public Safety Communications 10. General Provisions. 10.1 Neither Party shall have the right to assign this Agreement, or any of its rights or obligations hereunder, without the prior written consent of the other Party. Notwithstanding the foregoing, Vendor may assign its rights and obligations under this Agreement to an Affiliate of Vendor, or to any successor by way of merger, acquisition, or sale of all or substantially all of Vendor's assets. Notwithstanding anything to the contrary contained herein, the Parties agree that Vendor shall have the right to subcontract, in whole or in part,any of the Services to be performed by Vendor hereunder. 10.2 It is expressly agreed that the Parties are acting hereunder as independent contractors and under no circumstances shall any of the employees of one Party be deemed the employees of the other Party for any purpose. This Agreement shall not be construed as authority for either Party to act for the other Party in any agency or other capacity, or to make commitments of any kind for the account of or on behalf of the other Party except to the extent and for the purposes expressly provided for and set forth herein. 10.3 Neither Party shall be deemed to be in default of any provision of this Agreement, or for failure in performance of its obligations hereunder(excluding payment obligations), resulting from acts or events beyond the reasonable control of such Party, including acts of God, civil or military authority, acts or threats of terrorism, civil disturbance, war, riot, strike or labor dispute (not related to either Party's workforce), fires, floods, or act of government (each a "Force Maieure Event"). Such Force Majeure Event, to the extent it prevents a Party's performance or any other undertaking tinder this Agreement, will extend the time for performance for as many days beyond the applicable performance date as is required to correct the effects of such Force Majeure Event. 10.4 Words importing the singular include the plural, words importing any gender include every gender and words importing persons include entities,corporate and otherwise; and(in each case)vice versa. The section headings are for ease of reference only and shall not affect the interpretation or construction of this Agreement. Whenever the terms "including" or "include" are used in this Agreement in connection with a single item or a list of items within a particular classification (whether or not the term is followed by the phrase "but not limited to" or words of similar effect) that reference shall be interpreted to be illustrative only, and shall not be interpreted as a limitation on, or an exclusive enumeration of the items within such classification. 10.5 All provisions of this Agreement are severable,and the unenforceability or invalidity of any of the provisions of this Agreement shall not affect the validity or enforceability of the remaining provisions of this Agreement. 10.6 Each Party shall perform its obligations in a manner that complies with all applicable laws and regulations, compliance with which is required of such Party or for which such Party is responsible hereunder. 10.7 Vendor and Customer agree that they will individually obtain any export licenses that may be required under applicable U.S. laws prior to any export or re-export of Products or information provided under this Agreement. 10.8 No provision of this Agreement shall be deemed waived and no breach shall be deemed excused unless such waiver or consent is in writing and signed by the Party claimed to have waived or consented. No consent by either Party to,or waiver of, a breach by the other, whether express or implied, shall constitute consent to, waiver of, or excuse for any different or subsequent breach. 5 10.9 This Agreement shall be governed by and construed in accordance with the laws of the State of Colorado, excluding its rules of conflicts of law. Both Parties hereby consent and submit to the exclusive jurisdiction of the state and federal courts in Colorado in all questions and controversies arising out of this Agreement. Both Parties hereby exclude the application of the Uniform Computer Information Transactions Act ("UCITA"), the United Nations Convention on the International Sale of Goods("CISG"),and any law of any jurisdiction that would apply UCITA or CISG or terms equivalent to UCITA or CISG to this Agreement. To the extent not prohibited by applicable law that cannot be waived, the Parties hereby waive, and covenant that they will not assert any right to trial by jury in any action arising in whole or in part under or in connection with this Agreement or any of the transactions contemplated hereunder. 10.10 In the event of any conflict or inconsistency between the terms of: (a) this Master Relationship Agreement and any Attachment or SOW, the terms of the Master Relationship Agreement shall prevail, and (b) any Attachment and any SOW, the terms of the Attachment shall prevail: except to the extent that: (i) an Attachment or SOW specifically states that specified terms in the Attachment or SOW supersede specified terms of the Master Relationship Agreement, in which case such superseding terms will apply only to that Attachment or SOW,or(ii)a SOW specifically states that specified terms in that SOW supersede specified terms of the applicable Attachment, in which case such superseding terms will apply only to that SOW. 10.11 Following the execution of this Master Relationship Agreement by both Parties, Vendor shall have the right to issue a press release regarding its relationship with Customer(the "Press Release"). Customer agrees to contribute a quote from a Customer employee involved with the relationship with Vendor to be used in the Press Release. Vendor shall provide a draft of the Press Release to Customer for its review and, within five (5) business days following its receipt of the draft, Customer shall provide Vendor with any proposed changes to the Press Release. Notwithstanding anything to the contrary contained herein, Vendor agrees that it will not make, issue, or release any public statement (including the Press Release), announcement, or acknowledgement of the existence of, or reveal the status of, the Agreement or the terms or transactions provided for herein, without first obtaining the written consent of Customer. 10.12 This Agreement may be executed in any number of counterparts, each of which shall be deemed to be an original and all of which taken together shall constitute a single agreement.Additionally, the Parties agree that: (a) this Agreement, including any transactional documents related to this Agreement, and any amendments thereto, may be signed using electronic signatures facilitated by a U.S. E-SIGN Act-compliant(i.e., the Electronic Signatures in Global and National Commerce Act- ES1GN, Pub.L. 106-229, 114 Stat.464,enacted June 30,2000, 15 U.S.C. ch.96)electronic signature provider ("e-signatures"); (b) e-signatures shall have the same effect as original signatures; and (c) the Parties are subject to the provisions of the U.S. E-SIGN Act. 10.13 This Agreement, represents the entire agreement and understanding between the Parties with respect to the subject matter hereof, and supersedes any other agreement or understanding, written or oral,that the Parties may have had with respect thereto. No statement or inducement with respect to the subject matter by either Party or by any agent or representative of either Party, which is not contained in this Agreement, shall be valid or binding between the Parties. No provision of this Agreement may be modified or amended except by a written instrument duly executed by each of the Parties. Any such modifications or amendments shall not require additional consideration to be effective. 10.14 Extension or Modification. Any amendments or modifications to this Agreement shall be in writing signed by both Parties. 10.15 Non-Exclusive Agreement. This Agreement is nonexclusive and County may engage or use other contract professionals or persons to perform services of the same or similar nature. 10.16 Fund Availability. Financial obligations of the County payable after the current fiscal year are contingent upon funds for that purpose being appropriated,budgeted and otherwise made available. Execution of this Agreement by County does not create an obligation on the part of County to expend funds not otherwise appropriated in each succeeding year. 10.17 Governmental Immunity. No term or condition of this Agreement shall be construed or interpreted as a waiver, express or implied, of any of the immunities, rights, benefits, protections or other provisions, of the Colorado Governmental Immunity Act§§24-10-101 et seq.,as applicable now or hereafter amended. 6 DocuSign Envelope ID:67E292C4-1641-4F65-BA4F-1D6AE24C3135 I0 18 Board of County Commissioners of Weld County Approval. In accordance %tth the HOW: RULE CHARTER FOR THE COUNTY OF WILD, COLORADO and the WFED COI NTV CODE, only the Hoard of County Commissioners has authority to sii4n thin Agreement NICE Sy .'41+1 ° Weld County Public Safety Communications 51C05104F±OB40C. By: 2116441d/akeat4-4.--- TOMTom Dziersk Name: Name Michael R Wallace,f:NP,( MCP Tide: Presi dent, Nice America I itle Director of Public Satet Communications Date: June 1, 2016 Date By: ` FBCSB7CIFFEC490. Kim cohen Name. Director, Finance 1 isle: June 1, 2016 Date. Art I s T: dia44.) W �; .�. BOARD OF COI:tiTY' COMMISSIONERS Weld C ity Clerk to the Board a�► WEI DCOI N I Y, COLORADO ` BY Deputy CI to the B . ,r*.:,-fir' *'ke Freeman.Chair /; ..t APR 25 2016 AL )VF.D AS T FUND(1. 'PROVED AS 1O SI'BS IANC L: 424444 Liti,c.cie kit..1,12-4-2-A--- Controller Elected Oftieial or Deparnnent Head AP AEDA 1OFORNI: X15._ /� ,/� Director of General SSen.ice; Counts Attorney , DocuSign Envelope ID:67E292C4-1641-4F65-BA4F-1D6AE24C3135 Software License Attachment This Software License Anachment i 'SLA"J rs entered intya'liutwx we2tt11iCI systems, Inc c' endor'i and Weld Count. Public Safety Communications ("Customer') as of ]ate t" LA1 C�figtixe Date"), pursuant to the ‘1aster , Relationship Agreement between Vendor and C usturrer dated as of , and provides additional terms for the licensing of Software under the Agreement, Fxcept a,ether'he se: loath herein,det',ncd terms used in this 51.A shall have the meanings prov;ded in the Master Relationship Agreement, IN WI r NESS \h FIE REM, the Parties nape caused this Sr to he executed b, their duly authorised representatives as of the SL A Fffectice Date e—DocuSigned by: -ICE SlystitA, Vic.%qtr Weld County Public Safety(onomunications '-52C05104F3DB48C... Tom Dziersk Name Name- Michael R Wanaee,ENP,CMCP Title, President, Nice America I itle Director of Public Sates," Communications Date. June 1, 2016 Date r—DO S!W-,I.d�w: � By "-FBCOBIC2FFEG90. U Kim Cohen Name' Director, Finance !ale. June 1, 2016 Date: A I IFS F d, BOARD of COLNTY C0MN,IISSI0NFRS Weld C ty Clerk to the B and 'A[I F)C )1.N F\ Ct)I(*ADO B Y` �' ��r '`► Deputy CI $ to the B ;�`` ��J %like Freeman, Chair f� ,-"; �►i APR 2 5 2016 r , �f� APPRO��'EU ;15 TO Ff;N llVt. � �_ \PPRC)VF.0 AS LU SI BtiT 1N(`E_ --2 ISM ( ontroller i► Elected I)t?icial or Department I lead Al' )VED , ft) FO \I L � NIA Direct,,r of General ten ices County \ttornex Software License, I Vendor grants to Customer a non-ex. usike, perpetual, worldwide. nun-transferable, fulls-paid license to use the Software, together with the specification: and user documentation that accompany the Svltware (collectively "Software Documentation"), for the iota; number of licenses Customer has purchased Tom \`endor Such ,ise ;hall be on the terms and siihject to the conditions set forth in this SLA I 2 \o title or ownership of the Software or Sotiwttre Documentati,>n is transtcrrcJ to ( ust,+mer by wati of thts l)vner:hip of the Software. Sort wait Documentation. and all modifica tions, enhancements, ,introwements, adaptations, translations and derivative works thereof and any other intellectual property rights therein and thereto shall remain at all times with Vendor. 1.3 The Software and Software Documentation contain material that is protected by United States and international copyright law and trade secret law, and by international treaty provisions. All rights not expressly granted to Customer herein are reserved to Vendor. Customer shall not remove any proprietary notice of Vendor from any copy of the Software or Software Documentation. Customer may make a reasonable number of copies of the Software Documentation, provided such reproductions shall include any copyright or proprietary labels, legends or notices placed upon or included in the Software Documentation by Vendor. Customer may make one (1)back-up archival copy of the Software, provided Customer reproduces all confidentiality and proprietary notices on such copy. 1.4 Customer shall not publish, disclose, rent, lease, modify, loan, distribute, alter or create derivative works based on the Software or any part thereof. Customer shall not reverse engineer, decompile, translate, adapt,or disassemble the Software,nor shall Customer attempt to create the source code from the object code for the Software. 1.5 Upon reasonable prior written notice to Customer, Vendor shall have the right to inspect, examine,and audit Customer's compliance with the terms and conditions of this Section 1, including the inspection of the records relating to Customer's use of the Software at the locations where the Software is installed and used ("Software Compliance Audit(s)"). Software Compliance Audits shall be performed by Vendor or Vendor's representatives during Customer's normal business hours at the locations where the Software is installed and used,provided that Vendor's right to perform a Software Compliance Audit shall be limited to no more than once during any rolling twelve (12) month period. In the event that a Software Compliance Audit reveals that Customer is using more licenses of the Software than for which it has paid, Vendor shall invoice Customer and Customer shall, within ten (10)days after the date of Customer's receipt of Vendor's invoice, make payment to Vendor for such additional Software licenses. 2. Warranty. 2.l Vendor warrants that, during the period beginning upon the Availability Date (as defined below) of the applicable Software and ending on the date that is ninety (90) days thereafter ("Warranty Period"), the Software will be free from defects in materials and workmanship under conditions of normal use and will operate substantially in accordance with the applicable Software Documentation. 2.2 Should the Software fail to comply with the warranty set forth in Section 2.1 above during the Warranty Period, Customer's sole and exclusive remedy and Vendor's sole obligation with respect to Software shall be, in Vendor's sole discretion, to correct or replace any portion of the Software not in compliance with Section 2.1 at no additional charge to Customer. 2.3 The warranty provided in Section 2.1 above does not include damage to Software resulting from a cause other than a defect or malfunction, including: (a) installation, maintenance, servicing or modification of the Software or part thereof by anyone other than Vendor;or(b)use of the Software other than in accordance with the Software Documentation. 3. Delivery. After Vendor's receipt and acceptance of a Purchase Order, Vendor shall deliver the Software to the Customer via Vendor's electronic software delivery system. Vendor shall provide email notification to Customer of the date on which the Software becomes available for download ("Availability Date"). Such Availability Date shall be deemed the shipment date of the Software for all purposes under the Agreement. Where the Parties agree in writing that the Software shall be delivered via physical shipment of media, Customer shall be responsible for all shipping and insurance costs for the shipment of the Software media to the applicable location identified in the Purchase Order. Delivery of Software media shall be F.O.B. Vendor's premises ("F.O.B. Site"). Risk of loss to Software media shall pass to Customer immediately upon the Software media leaving the F.O.B. Site. 4, Invoicing. Vendor shall invoice Customer for Software on the Availability Date of the applicable Software. 5 Termination. 5.1 Notwithstanding anything to the contrary contained in Section 8.2 of the Master Relationship Agreement, Vendor shall have the right to terminate the license for the Software granted hereunder by giving written notice of termination to Customer, if Customer fails to pay the specified license Fees for the Software when due or fails in any other material respect to 9 comply with its obligations regarding the use and protection of the Software and Software Documentation, and such failure to pay or to comply is not remedied within ten(10)days after Customer receives written notice thereof from Vendor. 5.2 Upon the termination of the license for the Software by Vendor pursuant to Section 5.1 above or in accordance with Section 8 of the Master Relationship Agreement, Customer shall: (a)within thirty(30)days after the date of termination of the license, and at Vendor's option, destroy or return to Vendor all copies of the Software and Software Documentation; and (b) upon the destruction or return of all copies of the Software and Software Documentation,certify to Vendor in writing that it has either destroyed or returned to Vendor all copies of the Software and Software Documentation. 5.3 Notwithstanding anything to the contrary contained in Section 8.5 of the Master Relationship Agreement,the license to the Software shall,subject to Section 5.1 above,survive any termination of the SLA. [End of Software License Attachment] 10 Rev 4i!` DocuSign Envelope ID:67E292C4-1641-4F65-BA4F-1 D6AE24C3135 Professional Services Attachment This Professional Services ;Attachment i"PSA"I is entered IJrh?16ars1dlhet2vy 6 !Ski: Systems. Inc. i"Vendor") and Weld County Puhi c Safety Communications t"Customer") as or t"PSA Effective Date"). pursuant to the Master Relationship Agreement hetween "endv>} I4VC)G; r,n 41§ted as of , and pros ides additional terms for the provision of certain Services under the Agreement Except as otherwise set forth herein, defined terms used in this PSA shall have the meanings provided it the Master Relationship Agreement IN WITNESS WHERI-OE, the Parties have caused this PS:A to he executed by their duly authorised representatives as of the PSA Effective Date VICE sc rI j' dr: Weld County Public Safety Communications Wt 1/'7l 01444A42- 3 v 52C05104F3DB48C By GV 1 11)4)4. Tom Dziersk dame: • Name Michael R Wallace] NP,CNICP Title President, Nice America Title:Director of PublicSafety C omen nications June 1, 2016 Date Date "--DocuSignycl by: \---FBC687C2FFEC4B0_.. Kim Cohen Name. Director, Finance Title June 1, 2016 Date: A l FF5I: dittatelt) y' ;41 BO\RU OF COUNI'\' COMMISSIONERS 1beld Co. t' Clerk to the Boa � �'++� WELD COUNTY.('01 OR:AF ) (f► L BY Deputy (`ter.' to the •u .r�' �� r� Mike Freeman, Chair APR 2 5 Z©S APPROVED AS TO Ft IN N. iii►► j APPROVED:1S I C) SUBS'A\CI-: Controller Elected Official or Department Head APPRO U AS I FORM � Director of General Sea ice;_ ('aunty Attorney I_ Services. The Services to be performed under this PSA shall he in the nature of consalting, installation. implementation, training, and other professional services, acd ;hall not atclude Vendor's maintenance, hosting or software-as- a-service offerings. Services to he performed under this I'S,1 m,1s he described in an applicahle Statement of Work. Invoicing& Expenses. la' l.,roes, otllerw'sr set torte in .al SOW. Vendor shall in` -Il'C Customer lDr Services upon completion of the applicable Service,. and tbi Customer shall reimburse Vendor for ali reasonable out-of-pocket travel eviler ses incurred h) 'odor in conned ion with Aendor s pert'rmance nl the Services. in accordance with Vendor's travel and c\per;e puke'. Change Order. It either Parts proposes chines to ,t Statement of Wnrrk teach a "Change Item-i. the Parties wall tiih o the change procedures specified in hi; Sc.Set.tion I he Part proposing a Change Item will eonraet the other Part} with a II 02e/ - 43,6 description of the proposed Change Item. Vendor will then prepare a proposed change order to the Statement of Work in respect of the Change Item in a form mutually agreeable to the Parties ("Chance Order") for Customer and Vendor's review and, if acceptable to both Parties, execution. A Change Order shall include: (a)the details of the Change Item; (b)an analysis of the impact of the Change Item on the Statement of Work, including changes to expected or target completion dates; and (c) the time, materials, and aggregate costs required to address the Change Item. Neither Party will be held liable for any Change Item without a Change Order being executed by an authorized representative of each Party. 4. Non-Solicitation. Each Party agrees that it will not, directly or indirectly, for a period commencing on the PSA Effective Date and ending one (1) year following the expiration of the Term, without the prior written consent of the other Party, solicit or employ any person who, at any time during the Tenn, were employees of the other Party or its Affiliates who performed duties related to the Services performed hereunder, nor will such Party solicit or encourage any such person to terminate their employment relationship with the other Party or its Affiliate. Notwithstanding anything to the contrary contained in this Section 4, the restrictions set forth in this Section 4 shall not apply with respect to any employee of a Party who responds to a general advertisement for an employment opportunity whom a Party does not first personally and directly approach and solicit for employment. 5. Warranty. Vendor warrants that all Services performed pursuant to this PSA will be performed in a professional and workmanlike manner, consistent with reasonable and generally accepted professional standards and practices prevailing. [End of Professional Services Attachment] 12 Res• 5!' DocuSign Envelope ID:67E292C4-1641-4F65-BA4F-1D6AE24C3135 Maintenance Services Attachment This Maintenance tiervlee- Attachment ("VISA') is entered inhkijatp bfivvItiriNICI-. Systems. Inc. ('Vendor") and (Veld County Public Safety Communications ("Customer i as of ("SfSA Effective Date"'), pursuant to the Master Relationship Agreement between Vendor and Customer dated as of January 1, ;2aim—provides additional terms t lr Maintenance Services related to Public Safety Products under the Agreement. Except as otherwise set forth herein, defined terms used in this VISA shall have the meanings provided ;ri the Master Relationship A_reernent. IN WITNESS WHEREOF. the Parties have caused this. MS a to he executed by their duly authorized representatives as of the MS\ Effective Date, Doeusiigngned by: NICE Sys te dF'ijlsL Weld Count), Public Safety Communications '`.-52C05104F3DB48C... Fl : Tom Dzi ersk By:124•4414•0-'02. Name Name Michael R Wallace, 1 NP,CMCP President, Nice America fide June 1, 2016 1'tle Director of Public Safety Communications Cate: Date- ,—.....s,....., 6., (mow ,---F8,«FFECa9 liy: Kim Cohen Name: Director, Finance I itle: Date ATTEST: d.�wv W "d''gok BOARD OF COI.;N FY COMMISSIONERS Weld C tv jerk to the Boa d WELD Ct)ENT r. COLORADO Depute Clersto the Boar.1 `` � � like Freeman, Chair APR 2 5 2015 \PPROVED AS N) FUND ,�•"�•� 'PROVE I) r\S It) SUBS I AVCE: ---0 lam! Controller � ' lected Official or Department I lead APPRO 'ED AS T ) FORM: `� /"l Director of(icneral Services County Attorney I Scope of Maintenance Services, _ustomer rnat purchase from Vendor. and Vendor shall provide to Customer for the Products, the Maintenance Services as described in Exhibit .1 attached hereto and incorporated herein bv this reference. ad subject to 'he terms and conditions of this MSA and the \greetnent For the asoidance .,t doubt, Maintenance Services purchased by Customer are not applicable to any of 1 endor's Saa'offerirl_, Definitions and Interpretation. )or purposes of:Ins MS:A, the terms listed he.00 ;hall have the meanings indicated beside them. .'Business Day"' (means Monday through I r.d.p. excluding 'c''th is osier I'd hulidays It .a agar/,-/.386 "Business Hour"means an hour that occurs on a Business Day during Standard Hours, "Call Back Response Time" means the time by which Vendor will initiate a call back to Customer in response to a Service Request initiated by the Designated Contact in accordance with the Severity Level of the Error. The Call Back Response Time commences at the time when Vendor receives the mandatory data required to create a Service Request from the Designated Contact,as described in Section 5.6 below. "Error(s)" means a reproducible problem that causes a failure of the Products to operate substantially in accordance with the applicable Documentation under conditions of normal use. A non-conformity shall not be considered an Error if it results from: (a) Customer's use of the Products other than in accordance with the applicable Documentation; or (b) Customer's introduction of data into any data structures or tables used by the Products by any means other than in accordance with the Documentation; or(c)any third party software or third party equipment not authorized by Vendor in the Documentation. "Extended Hours" means twenty-four(24) hours per day, seven (7) days per week, and three hundred sixty-five (365) days per year. "Hot Fix(es)"means a software patch to address Severity l or Severity 2 Errors. "Hours of Support" means the timeframe during which Vendor shall perform Maintenance Services, "Maintenance Services" means the maintenance services provided in accordance with Exhibit A for Vendor's proprietary Software and Equipment,as applicable. "Microsoft Service Pack(s)" means a patch or collection of patches issued by Microsoft to correct errors or defects in Microsoft applications. "Minor Release(s)"means any modification or addition to Vendor's proprietary Software,that, ill Vendor's opinion, results in minor changes to the overall utility or functional capability of the Software and may contain Error corrections. Minor Releases are represented by a change to the right of the decimal point in the version number of the particular Software (e.g., v1.0 to v1.1). "Named User(s)" means, as applicable: (a) any individual who can log in to a Product; or (b) Customer's supervisory and quality management personnel identified and authorized by Customer to have access to the Products. "Next Business Day"means the next Business Day during Standard Hours. "On Site Support" means Vendor's performance of Maintenance Services related to Equipment installed at the Customer's location. "On Site Response Time(s)" means the period of time by which Vendor Personnel are to arrive at the Customer's location where an Equipment Error has occurred. On Site Response Times are measured beginning at the time that a determination is made that On Site Support is required. On Site Response Times may be adjusted to coincide with the delivery of Repair Parts. "Production Environment" means an operational environment used for the purpose of handling live interactions, data processing,or Customer's fulfillment activities(i.e.,as opposed to a testing/lab environment). "Release(s)" means, collectively, Minor Releases and Hot Fixes. Releases are available solely for the same number of licenses and for the current version of Vendor's proprietary Software purchased by Customer from Vendor under the Agreement on or after the Effective Date. Releases provided hereunder shall be deemed to be included within the definition of Software. `Remote Support Coverage" means the period of time during which Vendor Personnel are to provide Maintenance Services by phone or remote access to the Products via VPN, Webex, or PC anywhere. "Response Time(s)"means collectively,the Call Back Response Time and the On Site Response Time, "Second Business Day" means two(2) Business Days following the current Business Day during Standard Hours. 14 Re, •:I' "Self-Service Portal"shall mean the web site located at http://www,extranice.com. "Service Request" shall mean a request issued by a Designated Contact containing the following information (as applicable) that must be supplied to Vendor prior to Vendor's performance of Maintenance Services: (a)company name; (b)site name; (c) country; (d) requester's full name; (e) phone number; (0 mobile number; (g) alternate contact information (if any); (h) VPN access information; (i)email address; (j)serial number of the Products;(k)description of the issue; (1) IP address of the server (if applicable);and(m)the Service Request number(if calling about a previously reported issue). "Severity Level"shall mean the classification of an Error,which shall be determined by the definitions set forth in Exhibit A. "Standard Hours"means 8 AM to 5 PM(Mountain Time)on each Business Day,excluding Vendor's observed holidays. "Sunset Policy" means the document published by Vendor from time to time and available on the Self-Service Portal, which sets forth the lifecycle of the Products. "Sunset Products"means the Product versions for which, pursuant to the Sunset Policy,the final date on which Vendor offers Maintenance Services(including technical support,help desk support,training and spare parts)has passed. "Maintenance Pro2ram Option(s)"shall mean the maintenance program option as specified in Exhibit A. "Vendor Helpdesk"means the first point of contact for Customer to obtain Maintenance Services. "Vendor Personnel"means Vendor certified technical personnel who provide Maintenance Services. "Workaround" means a modification or a change in process for a particular version of the Products, which may be of a temporary or interim nature,to mitigate the effects of an Error. 3. Maintenance Services. 3.1 Subject to the Sunset Policy, Vendor shall provide the Maintenance Services described in Exhibit A to Customer as follows: 3.1.1 For the period of twelve (12) months commencing on January 1, 2016 ("Initial Maintenance Services Term") for the existing Products purchased by Customer prior the Effective Date of this MSA for which the applicable maintenance services were purchased directly from Vendor, provided that: (i) the fees payable to Vendor for the related maintenance services are current prior to the Effective Date of this MSA, or (ii) such fees shall be made current following the execution of this MSA. 3.1.2 The Initial Maintenance Services Term shall be automatically extended for additional periods of twelve (12) months (each an "Extended Maintenance Services Term"), unless, at least ninety (90) days prior to the conclusion of the Initial Maintenance Services Term either Party provides the other Party with written notice of termination(a "Non-Renewal Notice"), which Non-Renewal Notice shall be effective on the date of the expiration of the Initial Maintenance Services Term, at which time, performance of the Maintenance Services shall cease. Each Extended Maintenance Services Term, if any, shall be extended or terminated in the same manner as the Initial Maintenance Services Term in accordance with this Section, provided that a Non-Renewal Notice for any Extended Maintenance Services Term shall be effective at the end of the then current Extended Maintenance Services Term. The Initial Maintenance Services Term and Extended Maintenance Services Term are collectively referred to herein as the"Maintenance Services Term". 3.2 Additional Products purchased by Customer during the Maintenance Services Term ("Added Products") shall become subject to this MSA on the date of Vendor's shipment to Customer of such Added Products. 4. Invoicing. 4.1 Vendor shall invoice Customer as follows for Maintenance Services: (a) for the Initial Maintenance Services Term immediately following the mutual execution of this MSA; and(b)for each Extended Maintenance Services Term, if any, on an annual basis sixty(60)days in advance of the applicable Extended Maintenance Services Term. 15 Re, 5'i., 4.2 Vendor shall invoice Customer as follows for Added Products: (a) for the first twelve (12) months of Maintenance Services upon Vendor's shipment to Customer of the Added Products;and(b)for the first Extended Maintenance Services Term following the Customer's purchase of Added Products to this MSA, Vendor shall make the Maintenance Services Fees for all Products coterminous and invoice Customer for such Extended Maintenance Services Term in accordance with Section 4.1(b) above. The invoice for such Extended Maintenance Services Term shall include the pro-rated Fees for Maintenance Services related to such Added Products. The annual Maintenance Services Fees for the subsequent Extended Maintenance Services Term shall include the Maintenance Services Fees for all Products, inclusive of Added Products, and shall be invoiced in accordance with Section 4.1(b)above. 4.3 Notwithstanding anything to the contrary contained in Section 8 of the Master Relationship Agreement, if Customer fails to make payment to Vendor of any Fees for Maintenance Services in accordance with Section 3 of the Master Relationship Agreement, and fails to cure such default within ten (10) calendar days after its receipt of written notice thereof from Vendor, then Vendor, without limiting any other remedies available to Vendor under the Agreement, shall have the right to terminate or suspend the performance of any Maintenance Services hereunder. 5. Responsibilities of Customer. To enable Vendor to successfully provide Maintenance Services, Customer shall, throughout the Maintenance Services Term,and at no charge to Vendor: 5.1 Assign designated personnel to perform the administrative duties described in the Documentation for the applicable Products ("Administrator(s)"). Customer shall provide Administrators the credentials necessary to perform all required administrative tasks, such as: set-up and maintenance of Named User login IDs and passwords; alteration of welcome messages and announcements on the home page using the standard interface of the Products; and the scheduling of Named Users. Prior to performance of such duties, Administrators shall successfully complete the applicable Vendor training course(s), and any such supplements thereto that may be offered by Vendor from time to time. As reasonably required by Vendor,Administrators shall assist Vendor Personnel in troubleshooting problems with the Products. 5.2 Assign two (2) individuals, who shall perform the following tasks in connection with the Maintenance Services ("Designated Contact(s)"): (a) successfully complete the same Vendor training requirements as Administrators; (b) after successful completion of such training, perform Triage Support as described in Section 5.3 below, and submit Service Requests as described in Section 5.6 below; (c) develop knowledge and understanding of the currently deployed Products; (d) accurately characterize problems and describe their business impact; (e) reasonably describe symptoms of problems; (f) provide background information leading up to problems; (g) describe the steps or actions taken to try and resolve such problems; (h) provide timely and accurate responses to Vendor requests related to the delivery of the Maintenance Services; and(i)provide timely feedback on fixes and recommendations. 5.3 Prior to submitting a Service Request, the Designated Contacts shall: (a) assist a Named User with usage of the Products or the Documentation; (b) identify and document a reported problem in the Products and the issues causing the condition reported by a Named User; and(c) commence troubleshooting the reported problem("Triage Support"). As part of Triage Support the Designated Contacts shall: (i) document the reported problem; (ii) analyze or reproduce the reported problem or determine that the reported problem is not reproducible; (iii) resolve any Named User issue caused by an Error in the Software for which Vendor has provided the needed support action to the Designated Contacts;(iv)identify and implement any Workarounds provided by Vendor Personnel; and(v)maintain contact information and be available as an escalation point. 5.4 Upon completion of Triage Support, should the Designated Contact be unable to resolve an issue reported by a Named User, the Designated Contact shall: (a) submit a Service Request; (b) track new Service Requests and updates to existing Service Requests; and (c) provide sufficient information to Vendor for Vendor to duplicate the circumstances (if possible) indicating a reported Error. Throughout the duration of a Service Request, the Designated Contact shall: (i) where applicable,promptly approve Vendor's implementation of Hot Fixes and Workarounds; (ii)reasonably cooperate with Vendor, provide full information and remote and physical access to the Products as well as the data relating to the operation of the Products; and(iii) provide Vendor Personnel, with any key or other means required for undoing any type of encryption in the Products. 5.5 At all times, (a) ensure the physical and virtual security of the Products, including proper installation of new Microsoft Service Packs that have been verified by Vendor; and (b) in accordance with the Documentation and the written instructions of the Vendor Personnel, Customer shall (i) operate the Products, and perform administration relating to the Products; (ii) maintain the site(s) where the Products are installed; (iii) maintain third party servers and third party software used in connection with the Products;and(iv)perform routine database maintenance. 16 5.6 Following Vendor's receipt of a Service Request, the Vendor Personnel handling the call will respond within the Call Back Response Time defined in Exhibit A. The Designated Contacts may submit Service Requests for Severity 1 Errors After-Hours. 5.7 When Vendor considers it necessary for the performance of the Maintenance Services hereunder, Customer shall promptly provide Vendor with remote access to the Products, consistent with Customer's reasonable security requirements, and shall provide reasonable assistance and facilities as requested to expedite the performance of the Maintenance Services by Vendor. Remote access will be accomplished through a secure LAN-to-LAN VPN tunnel, which can be created using Vendor's VPN Concentrator and any compatible Customer device. 6. Exclusions from Maintenance Services. 6.1 Vendor may, at any time, exclude from Maintenance Services any Equipment that has been: (a) modified, repaired or serviced by anyone other than Vendor Personnel, unless otherwise authorized by Vendor in writing;(b)subjected to unusual physical or electrical stress, whether such stress results from accident, neglect, misuse, failure of electrical power, air conditioning, humidity control, transportation, or any other cause other than ordinary use; (c) relocated from its place of installation, unless otherwise authorized by Vendor in writing; (d)connected to, or integrated with, any systems or servers not certified by Vendor to operate with the applicable Product, unless otherwise authorized by Vendor in writing; (e) any Product that experiences an Error resulting from Customer's use of the Equipment other than in accordance with the applicable Documentation. 6.2 Vendor may, at any time, exclude from Maintenance Services any Software that experiences an Error resulting from: (a) Customer's use of the Software other than in accordance with the applicable Documentation; (b) the introduction of data into any data structures or tables used by the Software by any means other than contemplated by the applicable Software Documentation; or (c) the modification or servicing of the Software by anyone other than Vendor Personnel, unless otherwise authorized by Vendor in writing. 6.3 Maintenance Services shall not be provided in respect of Sunset Products. 6.4 Vendor shall not perform any work external to the Products, such as electrical work or support of attachments to the Products or other devices connected to, or interconnected with, the Products (e.g., a Customer network or third party equipment)that are not furnished by Vendor. 6.5 Vendor's performance of Maintenance Services shall be excused in the following circumstances: (a) repairs which are impractical for Vendor to perform due to the connection of the Products or any part thereof to another device, or the inaccessibility of the Products or any part thereof; (b) installation of any software on the same server on which the Software is installed, or the combination of any software with the Products, unless such software was provided or approved by Vendor in writing; or (c) Customer's failure to meet any of its responsibilities set forth in this MSA. Vendor shall notify Customer promptly following any of the events described in this Section 6.5,and Vendor's performance of Maintenance Services shall be excused until such failure has been cured. 7. Eligibility for Coverage. If the Parties agree to add any products to this MSA which were not, as of the MSA Effective Date, covered by a separate direct Vendor maintenance agreement, in addition to Customer paying the current Fees for Maintenance Services for such products,prior to the inclusion of such products under this MSA,Customer shall pay for any labor, materials, adjustments and upgrades deemed necessary by Vendor to place such products in good operating condition. Any such products added to this MSA shall be deemed to be Added Products pursuant to Section 3.3 above. 8. Other Services. Any services which are not specifically included in the Maintenance Services and which Customer wishes Vendor to perform shall be at an additional cost to Customer and shall be performed, if at all, pursuant a separately executed Professional Services Attachment to the Master Relationship Agreement. 17 Rev i;l` Exhibit A to the Maintenance Services Attachment I. Maintenance Program Options: Thejollowing table describes the Maintenance Program Options available to for purchase by Customer from Vendor: .��Maintenance Program Options Silver Gold Lite Gold Hours of Support `--- Remote support coverage Standard Hours _Extended Hours Extended Hours On Site Support Standard Hours Standard Hours Extended Hours The following table describes the Response Time applicable to all Maintenance Program Options: Severity Severity 1 Severity 2 Severity 3 Severity 4 Service Call Back Response Time 60 minutes 120 minutes Next Business Day Next Business Day On Site Response Time Next Business Day Next Business Day Second Business Second Business Day Day 2. Severity Definitions. Customer and Vendor shall jointly determine the Severity Level to be assigned to a particular Error reported by the Designated Contact(s)to Vendor in a Service Request. Such Errors shall be classified in accordance with the following chart: Severity Severity Level Definitions Level Critical -Any failure in the operation of the Products which results in the loss of recording channels Severity 1 or data,that if permitted to persist would result into a loss of the recording functionality. Major - Any problem resulting in loss of the ability to retrieve calls or the loss of the replay Severity 2 functionality for two(2)or more workstations. Minor - Any problem affecting one (1) or more workstations which does not result in a loss of Severity 3 recording or replay but nevertheless results in diminished Product response or performance. For example:An administrator loses the ability to add or delete users. Severity 4 j Issue(s)or questions(s)related to the operation of the Products,or any planned intervention. 3. Maintenance Services. Subject to Customer's fulfillment of its obligations defined in the MSA, the following services shall be performed by Vendor during the Maintenance Services Term in accordance with the Maintenance Program Option selected by Customer: 3.1 Service Requests for issues (all Severity Levels) shall be initiated by Customer by contacting the Vendor Helpdesk. Designated Contact may open a Service Request through the Self-Service Portal,or by calling(800)642-3611. 3.2 Vendor shall be perform Maintenance Services in accordance with the Hours of Support,the Response Times and the Severity assigned to an Error as described in Sections 1 and 2 of Exhibit A above,as applicable. 3.3 Upon Vendor's determination that a Service Request is an Error,such Error shall be worked on until the Products are restored to pre-Error functionality. Restoration may be in the form of a Workaround or a Release. In some cases,the Products may not materially conform to the Documentation because of an error in the Documentation, rather than an Error in the Products. In such cases Vendor may provide corrected Documentation. 3.4 Vendor shall provide Customer with access to Releases, if and when such Releases are made commercially available by Vendor to its customers generally. 3.5 To the extent that Equipment is purchased under the Equipment Purchase Attachment under the Master Relationship Agreement, Vendor shall perform analysis, diagnosis and repair or, at Vendor's discretion, replacement of faulty Equipment components, which includes dispatch of required parts to repair faulty Equipment components ("Repair Parts") and, where 18 Rev 5115 Vendor considers it necessary provide On Site Support. Unless otherwise agreed upon by Vendor and Customer,Repair Parts will be shipped overnight. [End of Maintenance Services Attachment] 19 Rev 5115 Hello