Loading...
HomeMy WebLinkAboutTyco Electronics/CCC Electronics f/.4.CO l References: MBP No. EDACS FX AGREEMENT APPROVED, AS TO FORM BY: FX Requisition No. Cust. P.O. No. THIS EDACS FX AGREEMENT ("Agreement") is hereby entered into between M/A-COM Private Radio Systems, Inc. ("Seller") City of Carmel, Carmel Clay Communications Center ("Subscriber") on the following terms and conditions: 1. SCOPE OF AGREEMENT During the term of this Agreement, as set forth in Section 7, Seller agrees to provide Subscriber with software updates, documentation updates and other services, as set forth in'Section 3 of this Agreement, for the software developed and provided by Seller and contained within the Subscriber's Designated EDACS System(s) as described in Schedule A to this Agreement. 2. DEFINITIONS As used in this Agreement, the following terms shall have the meanings set forth below. A. "Contract" means the agreement for the purchase of the Designated System(s). B. "Current Software Release Levels" means the most recent Software release announced by Seller as being commercially available. "Commercially available" does not include interim releases provided as emergency fixes or software released for beta test or noncommercial or similar purposes. C. "Designated System(s)" means the EDACS system(s) purchased by Subscriber and identified in Schedule A to this Agreement. The Designated System does not include Vendor Products, Excluded Products or other systems to which the Designated System may be linked. D. "Encrypted Features" means those EDACS product features which are not included as part of the standard EDACS system component or radio product software and which are activated by Seller only upon their being licensed to Subscriber. Examples of such features are Landline Data and Multiple Channel Partitioning for the EDACS system components and Priority System Scan for the EDACS PCS portable radios. E. "Licensed Programs" means all Seller Software programs and associated documentation nonexclusively licensed to Subscriber by Seller for use solely with Subscriber's Designated System, under one or more licenses, for which services are to be provided hereunder. F. "Software" means computer programs contained on a magnetic tape, semiconductor device or other memory device or system memory consisting of: (a) hardwired logic instructions which manipulate data in a processor and control input-output operations and error diagnostic and recovery routines, and (b) instruction sequences in machine-readable code that control transaction processing, peripheral equipment ECR-5145 Rev L and administration and maintenance functions, as well as associated documentation used to describe, maintain and use the programs. "EDACS FX Classification" means the classification of Subscriber's Designated System(s) within categories of system complexity, as defined by Seller from time to time, for the purpose of determining Subscriber's annual EDACS FX Fee. "Updates" means any commercially available corrections, modifications or.enhancements to the Licensed Programs generally released and/or provided by Seller. "EDACS Reseller" means a person or entity authorized by Seller to sell certain EDACS products and systems as an authorized EDACS Reseller in accordance with the provisions of an EDACS Reseller Agreement between Seller and such person or entity. "EDACS Strategic Integrator" means a person or entity authorized by Seller to sell certain EDACS products and systems as an authorized EDACS Strategic Integrator in accordance with the provisions of a Relationship Agreement between Seller and such person or entity. 3. DESCRIPTION OF EDACS FX PROGRAM FEATURES Software Releases Included. With respect to each Licensed Program, and subject to the conditions of this Agreement, Seller will provide the Software Updates described below during the term of this Agreement. All Updates shall be shipped to Subscriber's EDACS FX contact designated in Schedule A of this Agreement via protective packaging containing a quantity of programmed Software media e(.~g.., PROMs, TK50/DAT tapes, Compact Discs or diskettes) necessary for Subscriber to fully implement the Software Updates within its Designated System. In addition, each shipment of Software Updates shall contain at least one set of Software release notes detailing the contents of the Software Update and providing installation instructions. All Software Updates and documentation shipped to Subscriber shall be considered part of the Licensed Programs, shall be subject to the terms and conditions of the nonexclusive licenses granted by Seller to Subscriber, and Seller shall be free to license others with respect thereto. Software Updates Upon Enrollment. As determined by the system audit described in Section 3.C.i. of this Agreement, Seller shall provide to Subscriber the Software Updates needed, if any, to bring the Licensed Programs within Subscriber's Designated System up to Seller's Current Software Release Levels. Such Updates will be provided at no additional cost to Subscriber provided Subscriber has enrolled in the EDACS FX program within the enrollment deadline specified in Section 4.A of this Agreement and provided Subscriber has installed, at Subscriber's expense, the compatible hardware necessary to accommodate the Software Updates. ii. Subsequent Software Updates. During the term of this Agreement and subject to Subscriber's performance of its obligations, Seller shall provide to Subscriber Software Updates, released by Seller subsequent to Subscriber's enrollment in EDACS FX, for the Licensed Programs contained within Subscriber's EDACS Designated System. Such subsequent Software Updates may include: Enhancements and/or corrections to existing features for all EDACS Designated System backbone components and/or radios; New features implemented via the system components already contained within Subscriber's Designated System, including unencrypted features for the system backbone components and/or unencrypted features for the radio products; and ECR-5145 Rev L 5/15/0! iii. Software for product migrations where a new generation of Software is developed for the Designated System component, rather than the older generation of Software being updated. Software Replacements. In the event any Software media contained within Subscriber's Designated System incurs damage, whether from acts of Nature or human error, Seller shall provide replacements for such Software to Subscriber at no additional charge, subject to the terms and conditions of this Agreement. B. Software Releases Not Included. The following Software releases are not included within the terms of this Agreement: New Products. Any Software products released by Seller for which an earlier generation or release level is not already contained within Subscriber's Designated System. If Subscriber wishes to implement such Software products within its Designated System, it will need to license such products at the fees then in effect and purchase any necessary compatible hardware for operation of such Software. ii. Encrypted Features. Encrypted features for EDACS products are not included under this Agreement. Such features must be licensed separately by Subscriber at the fees then in effect. iii. Third Party Software. To the extent that such Vendor Products are available and compatible with the Designated System, Seller reserves the right to charge an additional fee for upgrades to software programs that are licensed by a third party for use with the EDACS system yet are not the property of Seller. C. Services Included. Subject to the terms and conditions of this Agreement and Subscriber's compliance therewith. Seller will provide to Subscriber the services described below. Unless otherwise indicated, these services are provided to Subscriber at no additional charge. System Configuration Baseline and Documentation Update. As part of the initial enrollment process for EDACS FX, an audit will be conducted by Seller, or its EDACS Reseller or EDACS Strategic Integrator, of Subscriber's Designated System(s) to be covered under this Agreement. This audit will be used to verify Subscriber's first-year EDACS FX Fee and to determine the Software release levels for Licensed Programs contained within Subscriber's System at the time of enrollment, together with any hardware updates necessary to accommodate Software Updates or to address Year 2000 Readiness issues. ii. EDACS FX Bulletin. Prior to the general release by Seller of any Software Updates, Subscriber shall receive an EDACS FX Bulletin announcing the impending release, and detailing its contents and impact, if any, on any other EDACS hardware or Software components. Subscriber acknowledges that older hardware may not have sufficient capacity for the operation of the Software Updates. NOTHING IN THIS AGREEMENT OR OTHERWISE REQUIRES SELLER EITHER TO DESIGN UPDATES THAT REMAIN COMPATIBLE WITH DESIGNATED SYSTEM HARDWARE OR TO PROVIDE ADDITIONAL HARDWARE UNDER THIS AGREEMENT, AND SUBSCRIBER WAIVES ANY SUCH DUTY OR OBLIGATION BY SELLER. iii. Installation Phone Support. Subscriber's EDACS FX subscription shall include telephone support by Seller's Technical Assistance Center (TAC) personnel with respect to the installation of Software Updates. Such support will be available during Seller's normal business hours (8:00 a.m. to 5:00 p.m. Eastern Standard Time Monday through Friday, excluding holidays) and for a period of ninety (90) days from the date the Software Update is released to Subscriber. After-hours emergency ECR-5145 Rev L 5115101 iv. support will be available through Sellers optional System Maintenance services at prices then in effect, provided that Subscriber is in compliance with the terms of this Agreement. Uo~rade Plannim,. If Subscriber is in compliance with the terms of this Agreement and its Designated System is classified as a Level 4 EDACS or higher, Seller, or its EDACS Reseller or EDACS Strategic Integrator, shall provide yearly consultation service at Subscriber's site to review Seller's planned Software releases and evaluate the operational and financial impact such releases may have on Subscriber's Designated System. If Subscriber is in compliance with the terms of this Agreement and its Designated System is classified below Level 4 EDACS, upgrade planning is not included within the terms of this Agreement but can be obtained from Seller at the rates then in effect for such service. D. Services Not Included. The following services/products am not included within the terms of this Agreement: i. Terminal Software Updates. Installation of Software Updates to terminal products is not included, but such installations may be obtained through Seller, or its EDACS Reseller or EDACS Strategic Integrator, at the rates then in effect for such service provided that Subscriber is in compliance with the terms of this Agreement. ii. Software Update Installation. Installation of Software Updates by Seller is not included, but such installations may be obtained from Seller, or its EDACS Reseller or EDACS Strategic Integrator, at the rates then in effect for such service, provided that Subscriber is in compliance with the terms of this Agreement. iii. Hardware Upgrades. In the occasional event that a Software Update released requires a corresponding hardware change, Subscriber will need to pumhase separately the compatible hardware required. Seller will endeavor to notify Subscriber in advance via the EDACS FX Bulletin or, if applicable, via EDACS FX's upgrade planning service of any hardware changes needed in order to implement a Software Update. No such notice will be given for Vendor Products or Excluded Products, and no hardware upgrade may be available. iv. Optional Support Services. Other Software support services Subscriber may require, including, but not limited to, training, customized software programming or troubleshooting through Seller's Technical Assistance Center are outside the scope of this Agreement but may be obtainable through other programs offered by Seller. v. Remote Site Transportation Costs. For those sites that are not readily accessible by motor vehicle and require special transportation arrangements in order to gain access for Designated System audits, Subscriber will be responsible, at its expense for providing transportation to the site and reasonable lodging and other support where same day service is not reasonably available. 4. CONDITIONS FOR SERVICE A. Enrollment Deadline. Subscriber agrees to enroll in EDACS FX no later than sixty (60) days after the earlier of: (i) the first expiration date of the warranty provided by Seller for any component of Subscriber's Designated System, or (ii) the first expiration date of the warranty provided by Seller for any of the Software within Subscriber's Designated System. If either such warranty already has expired when Subscriber is first offered the EDACS FX Program, Subscriber will be given a 60-day grace period in which to enroll in EDACS FX. A Subscriber meeting the enrollment deadline will receive, at no additional charge as described in Section 3.A.i. of this Agreement, the Software Updates needed to bring 4 ECR-5145 Rev L its Designated System up to Seller's Current Software Release Levels to the extent the Designated System hardware is compatible with such Software Updates. Subscriber Contact. Seller requests that Subscriber identify its Subscriber Contact in Section 5.B. of Schedule A to this Agreement. Subscriber shall designate a person with sufficient technical expertise to be able to interact knowledgeably with Seller's technical support personnel. To the maximum extent practicable, Subscriber's communications with Seller (with regard to the Software Updates provided under this Agreement) should be through the Subscriber Contact. Installation. Subscriber agrees to properly install the Software Updates provided by Seller in order of receipt from Seller. Subscriber understands that Software support provided by Seller is limited to Seller's Current Software Release Levels of Licensed Programs for the Designated System. D. Media Labeling. Subscriber agrees that if it makes copies of any Software Update supplied by Seller, whether for backup purposes or in order to install a Software Update throughout its Designated System, Subscriber will reproduce any copyright notice and/or proprietary notice appearing on and/or in such Update and will label all copies with all information, including part numbers and revision levels, provided on the set of media provided by Seller. Nothing herein grants Subscriber any right to sublicense any Software or to distribute copies to any other person, and such sublieensing and distribution is expressly prohibited. E. No Modification of Software. Subscriber agrees not to modify, enhance or otherwise alter any Software unless specifically authorized in the user documentation provided by Seller with such Software Update or unless the prior written consent of Seller is obtained. Under no circumstance shall Subscriber create or permit the creation of any derivative work from any Software or the reverse engineering or replication of any Software. F. Seller's obligations under this Agreement are conditional upon Subscriber's compliance with the terms of this Agreement and any Contract then in effect between Seller and Subscriber. 5. FEES, TERMS OF PAYMENT & TAXES A. EDACS FX Fee. Subscriber agrees to pay Seller or its EDACS Reseller or EDACS Strategic Integrator an annual EDACS FX Fee, in the amount set forth in Schedule A to this Agreement, plus taxes pursuant to Subsection E below, for EDACS FX services provided during the term as defined in Schedule A. Subsequent years' EDACS FX Fees, beyond Subscriber's first-year fee specified in Schedule A, may or may not remain at the same rates. Any changes made to Subscriber's Designated System(s) or mobile equipment which results in their falling into another EDACS FX Classification will be reflected in the following year's EDACS FX Fee. If Seller's rates for EDACS FX should increase, Subscriber will be notified in writing of any such increases at least one hundred twenty (120) days prior to the end of Subscriber's yearly EDACS FX period then in effect. B. Other Charges. Subscriber understands that if it chooses to delay its enrollment in EDACS FX beyond the deadline described in Section 4.A. of this Agreement, Subscriber will need to license, at the applicable fees then in effect, the initial Software Updates needed to bring its System up to Seller's Current Software Release Levels, as well as any hardware which may be required to accommodate such Updates. C. Due Date. Subscriber's first-year EDACS FX Fee will be invoiced upon receipt of this Agreement signed by Subscriber. Payment will be due thirty (30) days from the date of the invoice. Subscriber's subsequent years' EDACS FX Fees will be automatically invoiced sixty (60) days prior to the ECR-5145 Rev L commencement of the subsequent year's term. Payment of all amounts due is a condition precedent to Seller providing any future Software Updates or other services. Payment Terms. Payment shall be made in United States currency. All amounts over thirty (30) days past due shall accrue interest from the due date at the rate of one and one-half percent (1-1/2%) per month (or such lesser rate as is the maximum permissible rate under applicable law). In addition to payment of interest, Subscriber agrees to pay all collection costs and enforcement expenses, including reasonable attorneys' fees, if Seller must bring an arbitration or other proceeding to collect any amount owed by Subscriber or to enforce any rights in any bankruptcy or similar proceeding involving Subscriber. Taxes. In addition to all fees specified heroin, Subscriber shall pay the gross amount of any present or futura sales, use, excise, value-added, or other similar tax applicable to the price, sale or delivery of any products or services furnished hereunder or to their use by Subscriber, unless Subscriber shall otherwise furnish Seller with a tax-exemption certificate acceptable to the applicable taxing authorities. Discontinuance. Subscriber understands that if Subscriber discontinues and then subsequently resumes participation in the EDACS FX Program, Subscriber will be required to pay a re-entry fee for any benefits provided to Subscriber upon re-entry to the EDACS FX Program plus the EDACS FX Fee for the term then commencing. 6. TITLE The Licensed Programs and all copies thereof, in whole or in part, and all Software, documents and materials which may be provided by Seller hereunder for use in connection with such Programs are furnished nonexclusively as part of the Licensed Program(s) defined in the applicable software license agreement(s) and shall remain the exclusive property of Seller and will be held in confidence by Subscriber in accordance with the provisions of each such software license agreement. Under no circumstance shall Subscriber cream or permit the creation of any derivative work from any Software or the reverse engineering or replication of any Software. 7. TERM & TERMINATION A. EDACS FX services will be provided by Seller to Subscriber for an initial one-year term, as defined in Schedule A to this Agreement, and thereafter on a year-to-year basis as provided herein, subject to prior payment in full of all outstanding fees and charges at the time of renewal and compliance with the provisions of this Agreement. B. Provided Subscriber is then in full compliance with all of its obligations, Subscriber's EDACS FX enrollment shall be automatically renewed at the end of the first- year term for a second year's term and on a succeeding yearly basis thereafter unless either party notifies the other in writing, at least ninety (90) days prior to the end of the yearly period then in effect, that this Agreement will not be renewed. C. Subscriber may terminate this Agreement at any time upon thirty (30) days' prior written notice to Seller, in which case the services described in Sections 3.A. and 3.C. of this Agreement shall be discontinued and this Agreement shall terminate. D. Seller shall have the right to suspend or terminate this Agreement upon thirty (30) days' prior written notice if Subscriber fails to pay any fees or charges due hereunder or if Subscriber commits any other breach of this Agreement or commits any breach of any applicable Software license agreement for any ECR-5145 Rev L 5/15/01 Licensed Program being supported under this Agreement, any contract between Subscriber and Seller or any other obligation of Subscriber to Seller or any of its affiliates. E. Seller shall have the right to discontinue providing EDACS FX services (including Updates) for any Licensed Program supported under this Agreement. Software Updates may be discontinued at any time at Seller's discretion. Other services shall not be discontinued without at least ninety (90) days' prior written notice by Seller to Subscriber. Notwithstanding any other provision of this Agreement, as Subscriber's sole and exclusive remedy Seller will provide a pro-rata refund of Subscriber's annual EDACS FX Fee if Seller elects to discontinue providing EDACS FX services for any Licensed Program supported under this Agreement. F. Except as provided in Section 7. E. above, under no circumstances (including any termination of this Agreement) shall any fees paid pursuant to this Agreement be refundable once paid by Subscriber. 8A. SOFTWARE WARRANTY Seller warrants, for a period of ninety (90) days from delivery of a Software Update, that any Software furnished to Subscriber under this Agreement shall be capable of successfully operating on the designated hardware in accordance with the logic defined in the operator's manuals or other supporting documentation when Subscriber's Designated System is supplied with correct input data. If, on the basis of evidence submitted to Seller within the 90 day term of this warranty, it is shown that any Software does not meet this warranty, Seller, at its option, will either correct the defect or error in the Software free of charge and provide a corrected Software Update, or make available to Subscriber a satisfactory substitute program. The foregoing warranty is exclusive and in lieu of all other warranties whether written, oral, implied or statutory. NO IMPLIED OR STATUTORY WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE SHALL APPLY, ALL OF WHICH ARE WAIVED IN FULL BY SUBSCRIBER. IN NO EVENT SHALL SELLER BE LIABLE FOR ANY INCIDENTAL, CONSEQUENTIAL, SPECIAL, INDIRECT OR EXEMPLARY DAMAGES, OR FOR ANY LOST PROFITS OR REVENUES OR OTHER INDIRECT ECONOMIC PREJUDICE, OR FOR ANY EQUITABLE REIMBURSEMENT OR RECOVERY, ALL OF WHICH ARE HEREBY WAIVED IN FULL BY SUBSCRIBER. 9. LIMITATION OF LIABILITY The total liability of Seller, including its subcontractors or suppliers, for all direct or indirect claims of any kind for any loss, cost, expense, liabilities, or damage, whether in contract, warranty, tort (including negligence or infringement), strict liability, equity or otherwise, directly or indirectly arising out of, connected with, or resulting from the performance or non-performance of this Agreement (or any related software license agreement) or from the furnishing of any good or service pursuant to this Agreement (or any related software license agreement) shall not exceed the amount of the most recent annual EDACS FX Fee paid by Subscriber under this Agreement. IN NO EVENT, WHETHER AS A RESULT OF BREACH OF CONTRACT, WARRANTY, TORT (INCLUDING NEGLIGENCE OR INFRINGEMENT), STRICT LIABILITY, EQUITY, OR OTHERWISE, SHALL SELLER OR ITS A-~'FILIATES, AGENTS, OFFICERS, DIRECTORS, EMPLOYEES, VENDORS, SUBCONTRACTORS OR SUPPLIERS, BE DIRECTLY OR INDIRECTLY LIABLE FOR ANY SPECIAL, CONSEQUENTIAL, INCIDENTAL, INDIRECT OR EXEMPLARY DAMAGES INCLUDING, BUT NOT LIMITED TO, LOSS OF PROFITS OR REVENUES, LOSS OF USE OF EQUIPMENT, COST OF CAPITAL, COST OF SUBSTITUTE GOODS, FACILITIES, SERVICES OR REPLACEMENT POWER, DOWNTIME COSTS, INTEREST, ATTORNEYS FEES OR LITIGATION COSTS OR CLAIMS OF SUBSCRIBER'S CUSTOMERS FOR SUCH DAMAGES. The provisions of this Section, Limitation of Liability, shall apply notwithstanding any other provisions of this Agreement (or any ECR-5145 Rev L related software license agreement). The terms and provisions of this Section shall survive the termination or expiration of this Agreement. 10. CONFIDENTIALITY Subscriber agrees not to disclose, provide or otherwise make available to any third party any Software or portion thereof, or any technical information provided to Subscriber under the provisions of this Agreement (hereinafter "Confidential Information"), and to hold such materials in confidence using a strict degree of care to protect the Confidential Information from unauthorized disclosure. Subscriber's obligation with respect to disclosure of Confidential Information shall terminate with respect to any Confidential Information which Subscriber can show was rightfully in its possession prior to the disclosure made by Seller, or which subsequently came into its possession through a third party under no obligation of confidentiality to Seller, or which was independently developed by employees of Subscriber who did not have access to Confidential Information or which becomes a matter of public knowledge other than as a breach of any obligation owed to Seller, or which is disclosed with the prior written permission of Seller. Notwithstanding the obligations on disclosure and use set forth herein, Subscriber may disclose Confidential Information to third parties insofar as is necessary to satisfy a proper court order, subpoena, litigation discovery demand or administrative or regulatory proceeding order, provided that Subscriber promptly notifies Seller in writing of such order or demand prior to any disclosure and takes advantage of all available and appropriate measures to prevent further disclosure of the Confidential Information. D. The provisions of this Section shall survive the expiration or termination of this Agreement. 11. FAILURE TO ENFORCE The failure of either party to enforce, at any time or for any period of time, any provision of this Agreement in accordance with its terms shall not be construed to be a waiver of such provision or of the right of such party thereafter to enforce each and every such provision. 12. GOVERNING LAW AND DISPUTE RESOLUTION Any and all Disputes (as defined herein) between or involving Seller and Subscriber shall be resolved by arbitration conducted by three arbitrators in accordance with the commercial arbitration rules of the American Arbitration Association, and in accordance with applicable law and the express terms hereof. The arbitration shall be conducted in Washington, D.C. The decision of the arbitrators shall be reported with their written findings of fact and conclusions of law. The arbitrators shall use their best efforts to roach their decision within six (6) months from the date when the initial arbitration request is made. As used herein the term "Disputes" means any and all disputes, controversies, claims or causes of action of every kind, whether arising from any alleged breach of contract or warranty, tort, violation of law, right to equitable relief or other legal or equitable theory, in any way, directly or indirectly, arising out of or relating to this Agreement. Any arbitration must be commenced within one year from the date on which the cause of action accrued under applicable law or it shall be barred. This Agreement shall be governed by and construed in accordance with the laws of the Commonwealth of Virginia, excluding its rules pertaining to conflict of laws. Subject to the provisions of Subsection A, Subscriber consents to the personal jurisdiction of the state and federal courts in the Commonwealth of Virginia, which courts shall constitute the exclusive forum for all court proceedings involving the 8 ECR-5145 Rev L enforcement of this Agreement and the resolution of all Disputes related to the subject of this Agreement, whenever, wherever and however arising, whether at law, in equity or otherwise and whether the Dispute involves an alleged breach of contract, violation of law or tort of any kind. Each party acknowledges that jury trials are slower and more expensive than court trials without juries, and, considering the complex nature of the technology and other issues which may give rise to Disputes, the parties agree that any court proceedings commenced by or against either party shall be resolved (subject to arbitration as provided herein) by a court without a jury, and each party waives its right to a jury as to any disputes or claims arising under or relating to this Agreement, whether for breach or enfomement of contract, tort or otherwise, including all Disputes as defined herein. 13. NO THIRD PARTY BENEFICIARIES; ASSIGNMENT The provisions of this Agreement are solely for the benefit of Subscriber and Seller. No other person or entity is intended to be a beneficiary of nor is entitled to rely upon or enfome any of the provisions of this Agreement or to assert any claim for nonperformance of this Agreement by any party. This Agreement may not be assigned by either Seller or Subscriber without the prior written consent of the other party. The provisions of this Agreement shall inure to the benefit of and be binding upon Subscriber and Seller and their respective permitted successors and permitted assignees (if any). 14. NOTICES All notices required or permitted hereunder shall be in writing and shall be deemed validly given upon being hand delivered, or upon receipt if sent by facsimile or if mailed by certified mail, return receipt requested, to Subscriber at the address set forth in Schedule A or to M/A-COM Private Radio Systems, Inc. at 3315 Old Forest Road, Lynchburg, VA. 24501, Attention: Software Services Group, or to such other address as either party may designate to the other in writing. 15. ENTIRE AGREEMENT, EXECUTION AND MODIFICATION This Agreement contains the entire and only agreement between the parties concerning the subject matter hereof, and all prior representations and understandings in connection with the subject matter hereof are superseded and merged herein, and any representation or understanding not incorporated herein shall not be binding upon either party. This Agreement shall not become effective until signed on behalf of Seller by one of its officers or by an executive duly authorized by Seller's Vice President. No change, modification, ratification, rescission, or waiver of this Agreement or any of the provisions hereof shall be binding upon Seller unless made in writing and signed on its behalf in like manner. B. SELLER DOES NOT ASSUME ANY OBLIGATIONS OR LIABILITIES IN CONNECTION WITH THE SOFTWARE OR SERVICES OTHER THAN THOSE EXPRESSLY STATED IN THIS AGREEMENT, AND DOES NOT AUTHORIZE ANY PERSON (INCLUDING SELLER'S EDACS RESELLERS OR EDACS STRATEGIC INTEGRATORS OR SUBCONTRACTORS OR SUPPLIERS) TO ASSUME FOR SELLER ANY OTHER OBLIGATIONS OR LIABILITIES. ECR-5145 Rev L IN WITNESS WHEREOF, and intending to be legally bound, the parties hereto have caused this Agreement to be executed by their duly authorized officers or representatives. SELLER: M/A-COM PRIVATE RADIO SYSTEMS, INC. By: Name: Title: Date: Mgr. SUBSCRIBER: City of Carmel, Carmel Clay Communications Center By: Name: Title: Date: M/A-COM Private Radio Systems, Inc. 3315 Old Forest Road Lynchburg, VA. 24501 10 ECR-5145 Rev L Approved and Adopted this l~ day of CITY OF CARMEL, iNDIANA by and through its Board of Public Works and Safety BY: ~raln~,~Ma~~ ATTEST: /Q ~ Diana Cordray,~Clerlg-Treasurer Date: ~//~/~ ~'~ This Page Intentionally Left Blank I1 ECR-5145 Rev L 10/20/00 EDACS FX AGREEMENT SCHEDULEA 1. Term of EDA CS FX Agreement The services, as described in the EDACS FX Agreement to which this Schedule A is attached, will be Provided for the initial period beginning ~and ending~will be automatically renewed for one-year periods thereafter pur~u-~nt~to Section 7'~f the 3~g~eement. 2. Designated System. The Designated System(s) for which the EDACS FX Agreement will apply is (are): System Name System Classification System Location Carmel Clay Communications Center SSSV1C Carmel, IN 46032 12 ECR-5145 Rev L 10/20/00 3. EDACS FX Fees The first-year EDACS FX Fee for the above Designated System(s) is as follows: System Name EDACS FX Option System Fee Carmel Clay Communications SSSVIC Center $30,000.00 Subscriber's subsequent years' EDACS FX Fees will be determined in accordance with Section 5.A. of the Agreement. 4. Fiscal Year Billing Option If Subscriber requests billing for the first and subsequent years' EDACS FX Fees coincident with Subscriber's fiscal year, please indicate the fiscal year end date: mm dd If this option is selected, Subscriber's initial EDACS FX term will be from the effective date shown in Section 1 of this Schedule A through the next fiscal year end date and the first-year EDACS FX Fee will be prorated accordingly. 5. Designated Subscriber Contact(s) A. All notices regarding the EDACS FX Agreement to which this Schedule A is attached are to be sent by to: M,'A-COM Private Radio Systems, Inc. Contact's Name: Title: Address: (Do not use P.O. Boxes) Telephone: Todd Luckoski 31 1st Avenue, N. W., Carmel,, IN 46032 317-571-2586' 13 ECR-5145 Rev L 5115101 FAX No. B. All Software Updates to be provided by Seller to Subscriber under this Agreement are to be sent to (if different than 5.A. above): Contact's Name: Company Name: Title: Address: (Do not use P.O. Boxes) Telephone: FAX No. (Note: EDACS FX Bulletins, announcing impending releases of EDACS software, will be sent to both of the above-designated contacts.) 6. This Schedule A is agreed to by: Seller: M/A-COM Private Radio Systems, Inc. 3315 Old Forest Road Lynchburg, VA. 24501 Subscriber Name: City of Carmel, Carmel Clay Communications Center 31 1st Avenue, N. W. Carmel, IN. 46032 By: ,/ By: Name: ~ Z Name: Title: ~}]~', Title: Date: ~.~//-tg.~ Date: 14 ECR-5145 Rev L Approved and Adopted this CITY OF CARMEL, INDIANA by and through its Board of Public Works and Safety BY: ra~.~ar~d, ~,l~_r~ ~ Dat~ AnnSu~ ~e-m~e~ Lori day of ,20 . ATTEST: Date: Deimty Clerk