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PARTS EXCHANGE PROGRAM AGREEMENT� CALE PartSmartSM PARTS EXCHANGE PROGRAM AGREEMENT This PARTS EXCHANGE PROGRAM AGREEMENT (this "A�reement") is entered into as of the Effective Date (as defined herein), by and between CALE AMERICA INC. ("CALE"), a Delaware corporation, having its principal place of business located at 13808 Monroe's Business Park, Tampa, Florida 33635, and the undersigned customer of CALE (the "Customer"). WHEREAS, the Customer owns and/or is responsible for the maintenance of multi- space parking meters initially provided by CALE or its affiliates; and WHEREAS, the Customer would, in exchange for payment of a routine fee and subject to the other terms and conditions set forth below, like to have the ability to exchange any damaged or broken parts from those meters described on Exhibit A hereto (the "Covered Meters") for new or refurbished parts provided by CALE. Terms and Conditions In consideration of the mutual promises and covenants set forth in this Agreement, and for other good and valuable consideration, the receipt and adequacy of which are hereby acknowledged by the parties, CALE and the Customer hereby agree as follows: l. Parts Exchange. The PartSmartSM Parts Exchange Program (the "Pro�ram") involves CALE's provision of certain replacement parts for the Covered Meters and parts exchange services with respect to the same, all as more fully described on Exhibit B hereto. 2. Program Enrollment. Customer shall enroll all of its CALE parking meters in the Program. In the event that Customer has CALE parking meters that are still under original warranty, such meters shall be enrolled in the Program, listed on Exhibit A, and become Covered Meters upon the expiration of the original warranty without further action by the Customer. 3. Term and Termination. This Agreement shall remain in effect for a minimum of one (1) year from the Effective Date (such one year period, the "Initial Term"). Following the Initial Term, all Covered Meters shall remain enrolled in the Program on a month-to-month basis. The parties' respective rights to terminate this Agreement are as follows: 3.1 Following the expiration of the Initial Term, CALE or the Customer may terminate this Agreement upon not less than thirty (30) days prior written notice to other party for any reason or no reason at all. The Customer will be responsible for paying the entire monthly fee per Covered Meter for each month or portion thereof that a Covered. Meter is enrolled in the Program; CALE will not pro rate the monthly fee for any months in which a Covered Meter is not enrolled in the Program for the entire month. CALE will provide replacement parts and services under the Program for each replacement part. actually received by CALE from a Covered Meter for so long as such Covered Meter is enrolled in the Program. 3.2 Either party hereto may terminate this Agreement by written notice to the other if the other party breaches or is in default of any material obligation under this Agreement and has not cured such default or breach within thirty (30) days after receipt of notice of a default or breach specifying the nature of such default or breach in reasonable detail. Notwithstanding anything in this Section, CALE may terminate this Agreement by written notice to the Customer, if the Customer, without prior notice from CALE, fails to make any payment within five (5) days of the date when due. 3.3 Either party hereto may immediately terminate this Agreement by written notice to the other if the other party becomes insolvent, makes a general assignment for the benefit of creditors, files a voluntary petition of bankruptcy, suffers or permits the appointment of a receiver for its business or assets, or becomes subject to any proceeding under any bankruptcy or insolvency law, whether domestic or foreign, or has wound up or liquidated, voluntarily or otherwise. In the event that any of the above events occurs with respect to a party, such party shall immediately notify the other party of its occurrence. 3.4 The termination of this Agreement for any reason shall not affect (i) the right of either party to receive amounts to which such party is entitled pursuant to this Agreement or (ii) subject to the limitations of this Agreement, the right of either party to seek damages from the other party with respect to the events giving rise to the termination of this Agreement. 4. Prices; Pavment Terms. The prices and fees for the Program are provided in Exhibit A. CALE may set any given Customer's prices and fees for the Program based upon a number of factors, including without limitation, the number of ineters enrolled in the Program, age of the Covered Meters, length of time the Covered Meters have been out of warranty, whether the Customer is enrolling some or all of its CALE meters in the Program, geographic location, and the Customer's historical experience regarding meter use and xepairs. Following the Initial Term, CALE reserves the right to adjust the per meter per month rates and other program fees upon thirty (30) days written notice to the Customer. CALE shall provide the Customer with monthly invoices showing the calculation of the amounts to which CALE is entitled for said month. The Customer shall pay the amount of an invoice to CALE within thirty (30) days after the date of the invoice, without offset or deduction. Any payment not made when due under this Agreement shall bear interest at a rate equal to the lesser of (a) one and one-half percent (11/2 %) per month or (b) the maximum lawful rate under Florida law. In addition, a late fee of five percent (5%) shall apply to any payment not made when due. 2 5. Return of Parts. The Customer is responsible for delivering to CALE, at Customer's sole cost and expense, all parts being tendered for exchange under the Program. Customer shall ship such parts with reputable shipping companies and/or delivery services, and. shall bear the risk of loss and damage of such parts until such parts are delivered to CALE. The costs and risks associated with shipping replacement parts from CALE to the Customer are as set forth on Exhibit A. 6. Sales Tax. In addition to any other amounts payable by the Customer under this Agreement, the Customer shall pay all sales, use, value-added and other similar taxes, however designated, which are levied or imposed by any state, county or other jurisdiction upon the parts delivered and/or services performed, if applicable. 7. DISCLAIMER OF ADDITIONAL WARRANTIES. EXCEPT AS EXPRESSLY SET FORTH IN THIS SECTION, CALE MAKES NO WARRANTY OR REPRESENTATION, EXPRESS OR IMPLIED, AS TO THE VALUE, DESIGN, CONDITION, TITLE, NON-INFRINGEMENT, MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE OR USE OF ANY REPLACEMENT PART PROVIDED HEREUNDER. iN ADDITION, EXCEPT AS EXPRESSLY SET FORTH IN THIS SECTION,, NO ADDITIONAL WARRANTIES MAY BE iNFERRED FROM A COURSE OF DEALING OR USAGE OF TRADE. CALE'S SOLE RESPONSIBILITY AND LIABILITY UNDER THIS AGREEMENT SHALL BE TO REPAIR OR REPLACE, AT CALE'S OPTION, A DEFECTIVE PRODUCT. 8. Removal and Installation of Reulacement Parts. The Customer is responsible for removing any parts requiring replacements from a Covered Meter, packing and delivering such part to CALE without further damage, and re-installing the replacement part furnished by CALE pursuant to the Program. The Customer shall perform such removal and re-installation of' parts in a good and workmanlike manner, and in a manner that adheres with any technical documentation or instructions with respect to such tasks that may be provided by CALE from time to time. 9. Exclusions. The Program is intended to provide replacement parts for Covered Meters that are subject to parts failure (whether due to design defect or ordinary wear and tear) connected with the ordinary and intended use of the Covered Meters. The Program is not intended to replace parts that become damaged by extraordinary events which, in many cases, would or could be covered by commercial insurance policies. A complete list of exclusions is set forth on Exhibit B hereto. 10. Indemnification. 10.1 Each party hereto (in such capacity, the "Indemni in� Person") shall indemnify and hold harmless the other and the other's officers, direcfors, employees and agents, and their respective successors and assigns (collectively, the "Indemnified Persons"), from, against and in respect of, any liability, loss, cost, damage, expense or payment, including reasonable attorneys' fees and expenses, incurred or suffered by such Indemnified Person on account of the negligent acts of the Indemnifying Person, its employees, servants, or agents that lead to claims, controversies, legal actions and proceedings brought by or on behalf of any third party against the Indemnified Person due to such person's connection to this Agreement. Nothing contained herein shall be construed as a waiver of any immunity from or limitation of liability the Customer may be entitled to under the doctrine of sovereign immunity or section 768.28, Florida Statutes. 10.2 NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED IN THIS AGREEMENT, IN NO EVENT SHALL CALE BE LIABL� TO THE CUSTOMER OR ANY THIRD PARTY FOR ANY ENVIRONMENTAL, INCIDENTAL, INDIRECT, SPECIAL OR CONSEQUENTIAL DAMAGES (1NCLUDING, WITHOUT LIMITATION, ANY DELAY DAMAGES, LOST OPPORTUNITY DAMAGES, LOST DATA OR LOST PROFITS) 1N CONNECTION WITH OR ARISING OUT OF THIS AGREEMENT OR THE EXISTENCE, FURNISHING OR THE CUSTOMER'S USE OF THE COVERED METERS AND/OR THE REPLACEMENT PARTS PROVIDED HEREUNDER. The provisions of this Section shall survive the expiration or termination of this Agreement for any reason. . 11. Force Maieure. Neither party shall be liable to the other for any delay or failure to perform its obligations under this Agreement to the extent such delay or failure is caused by any event beyond the reasonable control of such party (including any delay or failure caused by the unavailability of the internet or wireless data transmission, or other failure or delay related ta wireless access). Notwithstanding anything in this Section, in no event shall the provisions of this Section apply to any of the Customer's payment obligations under this Agreement. 12. Intellectual Proqertv Rights. The Customer acknowledges and agrees that any and all trademarks, trade names, copyrights, patents, and other intellectual property rights embedded or used in connection with the Covered Meters and the replacement parts provided. hereunder are and shall remain the sole property of CALE (or CALE Systems, Inc. or other third. party, as applicable). The Customer shall not remove or alter any trademarks, trade names or brand names on the Covered Meters. The provisions of this Section shall inure to the benefit of any third party owner of the trademarks, trade names, copyrights, patents, and other intellectual property rights. CALE understands that Customer is subject to Chapter 119, Florida Statutes, Public Records, and CALE will take action to protect trade secrets consistent with Florida Statutes. 13. General Provisions. 13.1 Choice of Law. The laws of the State of Florida (without giving effect to its conflict of law principles) shall govern all matters arising out of or relating to this Agreement and all of the transactions contemplated hereby, including, without limitation, the validity, interpretation, construction, performance and enforcement of this Agreement. 13.2 Designation of Forum. Any party to this Agreement bringing a legal action or proceeding against any other party arising out of or relating to this Agreement 4 or the transactions contemplated hereby shall bring the legal action or proceeding in either the United States District Court for the Middle District of Florida or in any court of' the State of Florida sitting in Pinellas County, Florida (the "Designated Courts"). Each party consents to the exclusive jurisdiction of the Designated Courts for the purpose of all legal actions and proceedings arising out of or relating to this Agreement or the transactions contemplated hereby. Each party agrees that the exclusive choice of forum. set forth in this Section does not prohibit the enforcement of any judgment obtained in the Designated Courts or any other appropriate forum. 13.3 Waiver of Ri�ht to Contest Jurisdiction. Each party to this Agreement waives, to the fullest extent permitted by law, (i) any objection which it may now or later have to a Designated Court as the proper venue for any legal action or proceeding arising out of or relating to this Agreement and (ii) any claim that any action or proceeding brought in a Designated Court has been brought in an inconvenient forum. 13.4 Notice. Any notice, demand or other communication to a party to this Agreement that is permitted or required under this Agreement shall be given in writing, and shall be deemed to have been duly delivered (i) when delivered by personal delivery, (ii) three (3) days after being deposited with the United States Postal Service for mailing by first class mail, postage prepaid, certified mail, with return receipt requested (regardless of whether the return receipt is subsequently received), or (iii) one business day after being deposited with a nationally-recognized courier service for overnight delivery; and in each case addressed by the sender to CALE at the address first listed above, to the Customer at the address listed on the signature page to this Agreement, or to such other address as a party may notify the other party in writing in conformity with the provisions of this Section. 13.5 Further Action. Each party hereto agrees to take all further action, and to execute, acknowledge, and deliver any other documents, which may be reasonably necessary, appropriate, or desirable to carry out the provisions of this Agreement. 13.6 Amendment. The parties may amend this Agreement only by a written agreement signed by all of the parties to this Agreement. 13.7 No Waiver. No waiver of any provision of this Agreement, and no consent to any departure by any party from the terms and conditions of this Agreement, shall be effective unless such waiver or consent is given in writing by the party against whom such waiver or consent is sought to be enforced (in which the case the waiver or consent shall be effective only in the specific instance, and only for the specific purpose, for which it was given). No failure or delay by a party in exercising any right or remedy, or requiring the satisfaction of any condition under this Agreement, and no course of dealing between the parties, shall operate as a waiver or estoppel of any right or remedy of such party under this Agreement, or limit or prevent the subsequent enforcement of any provision of this Agreement by such party. 13.8 Inte ra�. This Agreement, together with the Exhibits attached hereto, constitutes the final agreement between the parties. It is the complete and exclusive 5 expression of the parties' agreement on the matters contained in this Agreement. All. prior and contemporaneous negotiations and agreements between the parties on the matters contained in this Agreement are expressly merged into and superseded by this Agreement. The provisions of this Agreement may not be explained, supplemented, or qualified through evidence of trade usage or a prior course of dealings. In entering into this Agreement, neither party has relied upon any statement, representation, warranty or agreement of the other party except for those expressly contained in this Agreement. There is no conditions precedent to the effectiveness of this Agreement other than those expressly stated in this Agreement. 13.9 Severabilitv. If any provision of this Agreement is determined to be invalid, illegal or unenforceable, the remaining provisions of this Agreement shall remain in full force, if the essential terms and conditions and conditions of this Agreement for each party remain valid, binding and enforceable. 13.10 Assignment. The Customer may not assign any of its rights or obligations under this Agreement without the prior written consent of CALE. 13.11 Successors and Assi ns. This Agreement shall be binding upon, and shall inure to the benefit of, the successors and permitted assignees of the parties. This Agreement shall continue to be binding upon the Customer notwithstanding any sale of the Customer or the business or assets of the Customer. 13.12 Counterparts. The parties may execute this Agreement in multiple counterparts, each of which constitutes an original, and all or which, collectively, constitute only one agreement. This Agreement shall be effective upon the date that last of CALE or the Customer signs this Agreement (the `Bffective Date"). 13.13 Exhibits. References herein to "E�ibits" are to the exhibits attached to this Agreement. The Exhibits attached to this Agreement are an integral part of this Agreement and are incorporated herein by this reference. 13.14 Descrintive Headin�s. The titles and captions preceding the text of the sections of this Agreement are inserted solely for convenient reference and neither constitutes a part of this Agreement nor affects its meaning, interpretation, or effect. 13.15 Authoritv. Each individual executing this Agreement on behalf of an entity represents and warrants that he or she is duly authorized to execute and deliver this Agreement on behalf of the entity and that this Agreement is binding upon the entity. The Customer represents and warrants that sufficient funds have been appropriated, budgeted and are otherwise available to permit the Customer to make the payments due under this Agreement. 13.16 Computation of Time. Whenever the last day for the exercise of any privilege or the discharge of any duty under this Agreement shall fall upon Saturday, Sunday or any public or legal holiday, whether federal or of the State of Florida, the party having such privilege or duty sha11 have until 5:00 p.m. on the next succeeding regular business day to exercise such privilege or to discharge such duty. � 13.17 Attornev's Fees. In the event any party engages an attorney to enforce or interpret this Agreement, by legal action or otherwise, each respective party shall be responsible for their own attorney's fees and all costs incurred as a result of such event. 13.18 Waiver of Ju_�r� Trial. CALE AND THE CUSTOMER EACH WAIVE. ANY RIGHT THE RESPECTIVE PARTY MAY HAVE TO A TRIAL BY JURY ON ANY CLAIM, COUNTERCLAIM, SETOFF, DEMAND, ACTION, OR CAUSE OF ACTION ARISING FROM OR IN ANY WAY RELATED TO THIS AGREEMENT. [SIGNATURES APPEAR ON FOLLOWING PAGE AND THE REMAINDER OF THIS PAGE IS INTENTIONALLY LEFT BLANK] 7 This Agreement was entered into by each of CALE and the Customer on the date(s) set forth below. CALE: CALE AMERICA INC., a Delaware corporation CUSTOMER: Countersigned: CITY OF CLEARWATER, FLORIDA BY� � By: /-� d/1>� Print Name: - ,.S �.- Wi liam B. Horne Title: C� n�'r61 l�<" City Manager Date: �� c�_�,�r� t� 11 �� i� Attest: '�� ;',,.:� t. i'1( �f,� C(..: Rosemarie Call City Clerk^ Approved � A c olc ryf `� � =���ir � v �_� B � ��.� ��_ A �f! Camilo A. Soto Assistant City Attorney Date: Mailing Address: 8 EXHIBITS Exhibit A: Covered Meters; Pricing Exhibit B: Program Terms and Details 10 Exhibit A Covered Meters / Pricing 1. Covered Meters. The Covered Meters enrolled in the Program are as follows: (All meters p�rctar�sec� cmd �cti�e an CWO, to Date will be incltrded in the �cnt. ) 2. Pricin�. $30/Meter/Month, based on covering all eligible meters in customer install base. 3. Shipping. The Customer shall bear all shipping and freight charges for parts being returned to CALE for replacement. CALE shall bear all shipping and freight charges for replacement parts being sent by CALE to the Customer. Risk of loss of replacement parts shall pass to the Customer upon delivery of replacement parts to Customer. Exhibit B Terms and Details The Program will apply to any confirmed failure or malfunction of components of the Covered Meters listed in Eghibit A to this Agreement. Important terms and conditions applicable to the Program are set forth below. 1. Services Provided. The following services are included in the Program: a. Unlimited technical support through our Help Desk by phone 7 days a week at 877-620-2253, email at support(a�caleamerica.com or online at http://su�port.caleamerica.com. b. Replacement of any component in a Covered Meter, except parts or conditions listed in Section 2 immediately below. CALE may, in its sole discretion, choose whether to utilize new or refurbished/reconditioned parts in providing replacement parts to the Customer under the Program. c. Guaranteed shipment within three (3) business days of all covered replacement parts if they are in stock. 2. Exclusions The follow items, services, parts and conditions are not covered under the Program, unless noted: a. Labor b. Travel expenses c. Expedited shipping costs d. Batteries — Covered under the first year warranty, but not the Program e. Shipping costs of return parts to CALE f. Any vandalized part g. Any damaged part (irrespective of the cause of such damage) h. Any incomplete part i. Any improperly maintained part j. Any malfunction caused by acts of God k. Any malfunction caused by intentional or negligent acts of the Customer, its staff, service providers or any third party other than CALE and its affiliates l. Printer assemblies without printheads 3. Return of Faulty Parts. a. A service request order (SRO) is required for all parts that are being returned to CALE for replacement. SROs can be requested by contacting the CALE Help Desk at 877-620-2253, by email at support(a�caleamerica.com or online at http://support.caleamerica.com. When you call or email the Help Desk for a SRO, include the following information about all returned parts: 1. What is wrong with the part(s) being returned; 2. Meter ID for the meter the part came out of, if known; 3. Part serial number from the sticker on the part, if there is a sticker; 4. Indicate that you are requesting a replacement part under the Program. Include a copy of your SRO form in the box with the returned part. The shipping address for the CALE parts warehouse is included at the top of the SRO form. Parts being tendered to CALE for exchange must be returned within 14 days of the SRO issue date. If a qualifying exchange part is not received within 14 days, the Customer account will be billed for the non-exchange part price. b. SpecialInstruction Coin Selectors: If you are returning a coin selector, please let us know if the selector is programmed to take tokens. Card Readers: When returning card readers, please remove the bezel and rain guards prior to shipping. These parts will not be returned with the replacement reader. Please specify the model of card reader you are returning. Printers: Printers assemblies must be returned with the printhead and ribbon cable attached. Printer assemblies without printheads may not be exchanged.