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HomeMy WebLinkAboutDS Support Agreement July 2022PACKETFUSION I:D 1�44a4A000000090 Connecting the Dots to the Cloud'" SUPPORT AGREEMENT D's miteL This Support Agreement ("SA") is made between Packet Fusion, Inc. ("Company"), located at 4301 Hacienda Drive, Suite 400, Pleasanton, CA 94588 and City of San Rafael ("Customer"). The parties agree to enter into this SA, and by doing so agree to the following terms and conditions: Support Services General: a. Customer designates Company as its sole and exclusive service agent for Support Services for the equipment ("Equipment") listed in Appendix A, "Schedule of Equipment", including any improved features and models of such equipment purchased from Company during the term of this SA at the locations designated in Appendix B, "Customer Locations". b. Attached Appendixes i. Appendix A, "Schedule of Equipment ("Equipment")" ii. Appendix B, "Customer Locations ("Locations")" iii. Appendix C, "Outages Classifications" iv. Appendix D, "Hourly Time and Materials Billing Rate (70 Rates")" v. Appendix E, "Terms and Conditions" II. Length of Support ("term") Quote Number: SS021022 6month COSR711737 Effective Start Date 7/16/2022 — Support - No Phone With Optional Term Length Coverage Phone Coverage Discount End Date 6 month renewal ® $ 9,111.72 ❑ $ 11,941.68 1/15/2023 Amount selected will be due in full upon invoicing by Packet Fusion Quote Expires: 7/16/2022 IMPORTANT: After this date, if not fully executed, Mitel's Corporate Policy imposes a reinstatement fee beginning at 40% of the contract value. Depending on the amount of time lapse from expiration date, the fee increases to a maximum of 100% at month 8. Payable to Packet Fusion, Inc. PO Box 398055 San Francisco, CA 94139-8055 III. Support Offering a. Unlimited Support Services upon request by Customer to restore malfunctioning operating component parts of the Equipment to proper working order for the equipment ("Equipment") listed in Appendix A, "Schedule of Equipment" b. Hours of coverage to be provided shall be 24 hours a day, 7 days a week and 365 days a year. c. Priority response to Customer requests for Support and/or service work over other types of Company service arrangements. Version: 20191001 Page 1 of 9 d. Remote labor for 1 voluntary system upgrade per year is included in our annual support agreement. If the upgrade is required due to a service affecting situation, then there is no labor charged for the upgrade and does not count towards the 1 included voluntary upgrade. For each of these upgrade scenarios, if the upgrade requires on -site assistance due to service affecting problems caused by the upgrade, there is no charge for on -site labor. e. This SA will entitle Customer to a preferred rate defined in Appendix D, "Hourly Time and Materials Billing Rate", on labor outside the scope of this contract including but not limited to Traffic Studies, Scheduled Customer Care, Software Upgrades above and beyond the annual upgrade, after -hour Services, & MAC (Moves, Adds, & Changes). f. Proactive Full Time Monitoring i. Proactive monitoring (Kaseya) will be provided at Customer's request by Company on a 24 hours a day, 7 days a week, 365 days a year basis. ii. All alarms from the Mitel communication system will be sent to our Network Operations Center (NOC) and treated in the following manner 1. Company will attempt to fix the problem remotely and then notify Customer of the outcome. 2. If the problem is not fixed remotely, Customer will be notified and an engineer will be dispatched to customer site to solve the problem. g. With respect to response times for all Equipment Outages (defined in Appendix C, "Outages Classifications"), Company will use its best efforts to respond to Customer request for service within the response times set for the in Appendix C based on time of receipt of Customer's acknowledged request for service, such response time to be calculated only during the hours of coverage selected by Customer. h. With respect to on -site response times for Outage of Equipment (classified as a Priority P1 failure as defined in Appendix C, "Outages Classifications"), Company's policy is to respond, if needed, on -site to Customer's request for service within 4 hours of receipt of Customer's telephone request for service. Note, any on -site labor performed for major malfunctions is covered in this agreement and provided free of charge to the "Customer". i. Any remote phone or remote access services that is not support related, which lasts less than 30 minutes, shall not be billed. IV. Services Excluded by this Support Agreement: Support does not include any labor or material costs for or necessitated by any of the following: a. Unless listed in Appendix A, "Schedule of Equipment", items not explicitly listed are excluded from maintenance support including Network Equipment Headsets, Surge Protectors, Battery Backups, Batteries, UPS's, Wire, Cable, Jacks, Cordless Phones, and third -party software integrated with the phone system. b. Labor and material costs of moves, additions, changes, and removals of or to the Equipment; specification or engineering changes; electrical work external to any item of Equipment; changes; or any operating supplies or accessories (batteries of any type, magnetic tapes or similar materials). c. Negligent, willful acts of Customer or any third party. d. Accident, casualty (including without limitation fire and lightning, flood, earthquake, acts of God, war, riot, natural disaster damage), neglect, misuse, or any other than normal use in the manner described in the Equipment specifications and/or specified in writing by Company. e. An act or event occurring external to the Equipment which directly or indirectly causes a failure or malfunction in the Equipment, including without limitation, failures or malfunctions of trunk lines or toll lines, cables, or other equipment connecting the Equipment to the telecommunications system of the operating telephone utility, abnormal environmental conditions (e.g. water inundation), or power fluctuations or failures which adversely affect the Equipment. f. Repair, maintenance, or increase in normal service time resulting from Customer's failure to provide a commercially reasonable Equipment environment as required in the Equipment specifications, or any other failure of Customer to fully perform its responsibilities under this SA. g. Any other acts or events that may adversely affect the Equipment's performance, occasioned by acts of Customer or any third party, or a third party's use of the Equipment in combination with any other apparatus, device, or other system not supplied or approved as to such combined use by Company. h. Any other service not required to keep the equipment in good operating condition for normal use including Operator and Station User training i. Diagnosing Customer's Telecommunication services/ WAN / LAN / VPN in conjunction with phone system outages including individual Remote VOIP Phones #### Signature Page on following page ##### Version: 20191001 Page 2 of 9 IN WITNESS WHEREOF, Customer and Company have caused their duly authorized representatives to sign this Support Agreement as of the dates indicated beneath their signatures below. Accepted: Packet Fusion, Inc. (Company) (Authorized Signature) Name Title: Date: Accepted: City of San Rafael (Customer) (Authorized Signature) Name: NADINEHADE Title: Administrative Services Director Date: tun Sr2p.22 Primary Phone System Contact Name: Vinh Van Pham Email: _vinhP*citvofsanrafael.org Phone: (4151 ass - 3028 Account Payable Information Name: Dioital AP Email: digital apta_cityofsanrafael.org Phone: M Version: 20191001 Page 3 of 9 Appendix A Schedule of Equipment ("Equipment') Product Primary Support without Phone Coverage will include: QTY Product QTY If optional Phone Coverage is selected, the following will also be covered: Extension & Mailbox license 364 IP Phone BB24 Black 24 Extension & Mailbox license BDL 14 IP Phone IP 212k Black 4 Extension Only license 21 IP Phone IP 230 Black 175 Extension Only license BDL 13 IP PHONE, IP115 BILK 9 LIC BUNDLE, ADV APP ESSENTIALS ONSITE 23 IP PHONE, IP420 6 LICENSE BUNDLE, ESSENTIALS ONSITE 23 IP PHONE, IP48OG 3 LICENSE, ADDITIONAL SITE 4 IP930D DECT Phone Starter Kit US CA MX 3 LICENSE, ADDITIONAL SITE BDL 8 IP930D Handset (spare) 2 LICENSE, COURTESY ONSITE 13 REPEATER, IP930D 1 LICENSE, MAILBOX ONLY 86 SHOREPHONE IP110 BLACK 56 LICENSE, SIP DEVICE 2 SHOREPHONE IP560 BLACK 75 LICENSE, TELEPHONY ONSITE 1 SHOREWARE CLIENT: OPERATOR CALL MANAGER 20 SHOREWARE PERSONAL CALL MANAGER REQUIRE 34 VOICE SWITCH, SG50 MADE IN USA 3 VOICE SWITCH, SG90 MADE IN USA 1 ShoreGear 120/24 2 ShoreGear 40/8 5 ShoreGear 60/12 3 ShoreGear TI 3 Unless included above, support is excluded for: Network Equipment Servers Carrier Services Appendix B Customer Locations ("Locations") HQ: 1400 Fifth Avenue, Room 207, San Rafael, CA 94901 1 Version: 20191001 Page 4 of 9 Appendix C Service Outage Classifications esolution Target Time Priority Definition Response Time R Appendix D Hourly Time and Materials Billing Rate ("T&M Rates") Hourly Rates • Non -Support Customers $195.00 an hour • Support Customer within California $145.00 an hour • Support Customers outside California $195.00 an hour Overtime Hourly Rates • Non -Support Customers $292.50 an hour • Support Customer within California $217.50 an hour • Support Customers outside California $292.50 an hour Travel • Travel Changes will be applied to location 25 miles outside of Company's office areas. Minimum 2 hours travel time at prevailing rate. Version: 20191001 Page 5 of 9 Appendix E Terms and Conditions Term: The term of this SA commences as of the Effective Date set forth on the first page hereof and continues for the Term as stated on the first page hereof. This SA shall not be effective and shall not bind either party until executed (signed) by duly authorized representatives of both parties. Charges and Taxes: a, Payment for Support Services shall be due within thirty (30) days of receipt of the invoice from Packet Fusion. b. Work performed on a time and materials basis ("T&M Work") hereunder shall be invoice upon completion. c. Any undisputed sum not paid when due shall bear interest at one and a half percent (1.5%) per month, from the date due to the date of actual payment. d. All quoted prices exclude all applicable state and local taxes. All taxes that are the responsibility of Customer shall be paid by Customer. Company will invoice Customer for sales taxes and Customer agrees either to pay Company amounts covering such taxes (as determined by tax authorities) or to provide evidence necessary to sustain an exemption therefrom, e. Changes in station quantities, port counts, equipment specifications, attachments or features may result in an adjustment of the SA agreement's original amount. Such adjustments will occur at the time of renewal and will require notification sent from Company to Customer, at which time Customer may elect, at its sole discretion, to cancel this SA per the Customer Cancellation provision within this SA. III. Conditions a. Company's Responsibility: Company's responsibility with respect to the Support Services shall be limited to either (i) Customer's side of interconnect devices connecting the Equipment to the telephone system operated by the local telephone utility, or (ii) if no such interconnect devices exist, Customer's side of the point of connection between the Equipment and said local telephone system. b. Unauthorized Work: Other than qualified employees of Customer, any Support Services performed on the Equipment by others during the term of this SA without Company's written consent, shall entitle Company to increase the charges for the Support Services hereunder to adjust for any increased costs resulting therefrom. In addition, if as a result, further repairs are required by Company to restore the Equipment to good and maintainable operating conditions, such repairs will be billed at Company's T&M Rates. If Company increases the charges as provided for herein, then Customer, at its sole election, may terminate this SA in its entirety without penalty, fee or costs. c. Time & Materials Work: At Customer's request, and pursuant to a written work order, Company shall perform services and provide materials, subject to their availability, with respect to the Equipment, which service and materials otherwise exceed the scope of work performed under this SA. Customer agrees to pay additional charges for such services and materials, on a time and materials basis, at agreed to rate, with payment due upon satisfactory completion. d. Access: Customer shall ensure that Company personnel have reasonable and immediate access to the equipment upon the arrival by Company personnel at Customer's site provided Company has provided Customer with sufficient advance written notice of start time, arrival time and completion times, Company will provide Customer with designated points of contact and make all arrangements for its support personnel to receive such notification. Customer shall make available to Company, at no charge, the use of any Customer owned/controlled Equipment, attachments, or features which are not covered under this SA, but which are necessary for the performance of Support Services on the Equipment covered by this SA. e. Toll Fraud: Company will strictly adhere to the manufacturer's specifications to secure the Equipment to prevent toll fraud. In no way is the Company liable for any toll fraud that may occur. f. Healthy and Safety Compliance: Company and Customer will adhere to all applicable health and safety laws, rules and regulations including the Occupational Safety and Health Administration's ("OSHA") Rules and Regulations. g. Equipment: Equipment covered by this SA shall be in good and maintainable operating condition as of the commencement of this SA. Equipment (other than equipment newly purchased from the Company), is subject to commercially reasonable inspection by the Company in order to determine that such Equipment is in good and maintainable operating condition. Work determined necessary to bring such Equipment into good and maintainable condition must be completed prior to commencement of Support Services under this SA. T&M Work perform to upgrade the Equipment into good and maintainable condition may be invoice separate to this Agreement. At Version: 20191001 Page 6 of 9 Customer's sole election, the Company shall perform any such necessary work at prevailing Company's T&M Rates. h. Documentation and Record Access: All relevant documentation and records needed to perform the Support Services on the Equipment, which may include information relating to the equipment, cable plant and relevant software shall be made available to Company for inspection prior to the commencement of the Support Services under this SA. Work determined to be necessary to bring such records into good and usable condition must be completed prior to the commencement of Support Services under this SA. At Customer's sole election, the Company shall perform any such necessary work at the prevailing Company's T&M Rates. i. Additional Work: When Customer requests services outside the scope of this SA, Company will utilize its commercially reasonable best efforts to provide such services in a timely manner at the Company's T&M Rates. j. Premature Termination and Default: Upon and during a Customer Default as defined in this subsection, Company in its sole discretion may suspend Support Services and other services it provides under this SA, and/or bill for Support Services at then -applicable T&M Rates for such services performed, and/or suspend all credit and perform on a cash -only basis, and/or pursue any other legal or equitable remedies available. i. A "Customer Default" includes: 1. Customer's failure to meet any undisputed payment obligation under this SA or any other agreement between Company and Customer, which failure continues for ten (10) business days after date of written notice of such failure, or 2. Customer's failure to perform any other material condition or material obligation under this SA or any other agreement between Company and Customer, which failure continues for thirty (30) days after date of written notice specifying the nature of such failure and Customer then fails to continue to diligently cure such failure. If Company terminates this SA under this subsection, Customer shall be liable for any and all outstanding charges up to the date of termination. k. Customer Cancellation: Customer may cancel this SA for any reason at anytime upon providing Company thirty (30) days advance written notice of intent to terminate this SA. IV. Limitation of Liability a. EXCEPT AS OTHERWISE PROVIDED FOR IN THIS SA, IN NO EVENT SHALL COMPANY OR ITS SUBCONTRACTOR OR CUSTOMER OR ITS AFFILIATES BE LIABLE FOR ANY SPECIAL, INDIRECT, INCIDENTAL, OR CONSEQUENTIAL DAMAGES, INCLUDING WITHOUT LIMITATION ANY LOSS OF BUSINESS, REVENUES, GOODWILL, SAVINGS, OR USE (WHETHER OR NOT SUCH DAMAGES WERE FORESEEN AT THE TIME THIS SA WAS MADE) ARISING IN CONNECTION WITH THIS SA, THE EQUIPMENT, AND/OR THE INTENDED USE THEREOF, EXCLUDING EACH PARTY'S GROSS NEGLIGENCE OR WILLFUL ACTS OR OMISSIONS. THIS LIMITATION APPLIES TO CLAIMS FOUNDED ON BREACH OF CONTRACT, BREACH OF WARRANTY, PRODUCTS LIABILITY, TORT (INCLUDING NEGLIGENCE), OR ANY OTHER THEORY OF LIABILITY. b. Either Party's liability for direct damages under this SA, other than property damage or bodily injury, is limited to the equivalent of three (3) months of the Support Agreement hereunder. c. Customer and Company indemnifies and holds each party harmless for any claims, actions, expenses, losses, damages, or liabilities for any property damage or bodily injury (including death) arising in connection with this Agreement or the Support Services provided under this Agreement, except to the extent that any such property damage or bodily injury results from the negligence or willful misconduct of each party, its officers, employees, agents including subcontractor or for claims, damages or injuries by Company's employees covered under California's workers' compensation statutes. d. Customer indemnifies and holds harmless Company for any claims, actions, expenses, losses, damages, or liabilities arising from allegations that the Equipment was used for illegal monitoring of calls or other illegal activities e. Company shall not be liable for any loss, cost, expense, or damages resulting from unauthorized calls made using the Equipment, or other fraudulent activities from Equipment, except where the unauthorized calls or other fraudulent activities are from or attributable to Company, its officers, employees, agents or representatives, including its subcontractors. f. EXCEPT AS OTHERWISE PROVIDED FOR IN THIS SA, COMPANY MAKES NO REPRESENTATIONS OR WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, WITH RESPECT TO THE EQUIPMENT, OR ITS CONDITION, PERFORMANCE, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR ANY OTHER MATTER. Version: 20191001 Page 7 of 9 V. Other Warranties and Representations. a. Company represents and warrants to Customer that: Company and its owners and employees each has the right to enter into this SA; that the Support Services and other products and services will not violate any non -compete agreements with any third parties; that the Support Services and other products and services shall be performed and provided in a timely, professional and workmanlike manner consistent with commercially reasonable industry standards of quality and integrity; Company shall at all times comply with Customer's security provisions and/or policies and procedures made known to Company; neither Company nor the Support Services and other products and services provided or performed by Company, shall violate or infringe upon any third party rights, including but not limited to the employment, trade secret, confidential and proprietary information, or any trademark, copyright or patent rights; that Company shall at all times comply with all applicable federal, state, or local laws, rules or regulations in the performance and provision of the Support Services and other products and services under this SA; that the Support Services, products and other services performed and provided under this SA shall contain the functionality specified in the applicable documentation and specifications applicable to such Support Services, products and other services and that for one (1) year from the date of performance will operate without material defect in accordance with the applicable documentation and specifications. VI. General a. Confidentiality. In the course of providing Support Services and other products or services hereunder, Company may have access to confidential and proprietary information and materials of Customer ("Confidential Information"). Confidential Information includes and is not limited to, information related to past, present or future research, development or business affairs, any proprietary products, software, materials or methodologies, trade secrets or any other information which provides Company with a competitive advantage, Confidential Information shall be used by Company only in conjunction with the provision or performance of Support Services and other services and products hereunder and shall not be disclosed to any third party. No rights or licenses under patents, trademarks or copyrights are granted or implied by any disclosure of Confidential Information. Upon Customer's request or completion or termination of this SA, Company shall return all Confidential Information to Customer. Company shall only disclose Customer Confidential Information to subcontractors, employees, officers, directors or affiliates (collectively, "Affiliated Persons") who have a need to know such Customer Confidential Information in order to perform or provide the Support Services or other products or services for Customer related to Customer's systems, provided that such Affiliated Persons are subject to written confidentiality obligations with Company protecting Customer's Confidential Information. b. Independent Contractors. Neither party is an employee, agent or representative of the other party. Neither party shall have any right, power, or authority to enter into any agreement for or on behalf of the other party, or to incur any obligation or liability or otherwise bind the other party. This SA does not create an association, joint venture, or partnership between the parties nor imposes any partnership liability upon either party. c. Force Majeure: Neither party shall be liable or otherwise responsible for any nonperformance or delay in performance of any of obligations under this SA during any period in which performance is prevented or hindered by any Force Majeure event, including by way of example but without limitation, lightning strike and any other acts of God, fire, flood and other severe catastrophic weather conditions, war, embargo, union strikes, explosions or riots. d. Cost of Collection: Customer shall be liable for any reasonable expenses incurred by Company in collecting any amount due under this Agreement and any Orders, or in enforcing any obligation under this Agreement or any Orders, including without limitation collection agency costs, reasonable attorney's fees, and court costs. e. Assignment and Subcontracting: This SA, including any Order entered into hereunder, is assignable by either party with the other party's prior written consent, which consent shall not be unreasonably withheld. Either party may assign this SA and Orders entered hereunder, in whole or in part, to an affiliate, subsidiary, joint venture, or third party into which said party is merged or which acquires substantially all of a party's assets or control of said party. Company may freely subcontract any or all of the work hereunder, provided that Company shall retain responsibility for the work subcontracted. f. Company Employees: Customer and Company agrees that neither it nor any of its affiliates will employ or offer to employ, solicit, contract with, or otherwise agree with any of either party's employees or representatives (including entities primarily owned by such employees or representatives) for the performance of support, service work, or adds, moves, or changes on any equipment provided, installed, or serviced hereunder, or any other services, during the course of this Agreement and within one (1) year of its termination without prior written consent by both parties. In the event that the customer or company hire the others employee, the hiring party shall pay 50% of the base salary of the employee hired. Version: 20191001 Page 8 of 9 g. Any controversy, dispute or claim arising out of, or relating to, the interpretation of this SA shall be first subject to a thirty (30) day negotiation period between the parties in which each party shall disclose to the other all non - confidential documents, facts, statements and any other relevant information which may have any bearing on this dispute. Should such negotiations fail to resolve the dispute, either party may refer the dispute to arbitration in accordance with the Commercial Arbitration rules of the American Arbitration Association. The decision of the Arbitrator shall be based, exclusively, upon only this SA and the information disclosed by the parties during the negotiation period, and the law of the state in which the equipment is located. The Arbitrator's decision shall be final and binding, and judgment upon the award rendered may be entered in any court having jurisdiction thereof. h. This SA, governed by the law of the state in which the Equipment is located, constitutes the entire SA between the parties and supersedes all prior oral and written proposals and communications, This SA takes precedence over the language of any implementing Customer purchase order or similar document. No change or counter-offer to this SA is effective unless in writing and signed by both parties. i. Any provision of this SA that may be judged to be in violation of local, state or federal statutes shall not cause the entire SA to become null and void. j. No action, regardless of form, arising out of this SA or the transactions contemplated hereby, may be brought by either party more than two (2) years after the causes of the action arises. k. The Company will maintain appropriate and adequate insurance for its operations. I. The Company is duly authorized to perform its services set forth under this Agreement. Version: 20191001 Page 9 of 9 PFI_Mitel Support_6month_711737_COSR_021 422 Final Audit Report 2022-06-08 Created: 2022-06-08 By: Michele Ginn (michele.ginn@cityofsanrafael.org) Status: Signed Transaction ID: CBJCHBCAABAAsonQOln4V5QW19UDvRbrLBUriDNOgzyS "PFI_Mitel Support_6month_711737_COSR_021422" History Document created by Michele Ginn (michele.ginn@cityofsanrafael.org) 2022-06-08 - 3:52:53 AM GMT Document emailed to NADINE HADE (nadine.hade@cityofsanrafael.org) for signature 2022-06-08 - 3:54:37 AM GMT Email viewed by NADINE HADE (nadine.hade@cityofsanrafael.org) 2022-06-08 - 5:53:43 PM GMT GS© Document e-signed by NADINE HADE (nadine.hade@cityofsanrafael.org) Signature Date: 2022-06-08 - 5:56:36 PM GMT - Time Source: server Agreement completed. 2022-06-08 - 5:56:36 PM GMT 0 Adobe Acrobat Sign