SYSTEM PURCHASE AGREEMENTSYSTEM PURCHASE AGREEMENT
BETWEEN
City of Clearwater
( "Buyer")
and
COMMUNICATIONS INTERNATIONAL, INC.
( "Seller")
DATE; November 24, 2014
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SYSTEM PURCHASE AGREEMENT
TABLE OF CONTENTS
SECTION
1. DEFINITIONS
2. SCOPE OF WORK
3. BUYER'S OBLIGATIONS
4. FACILITIES SITES
5. DELIVERY, TITLE AND RISK OF LOSS
6. PRICE
7. TAXES
8. CHANGES AND ADDITIONS
9. PAYMENTS
10. SUBCONTRACTING
11. EXCUSABLE DELAYS
12. SELLER'S INSURANCE
13. TESTING AND ACCEPTANCE
14. SOFTWARE LICENSE
15. COVERAGE
16. WARRANTIES
17. INTERFERENCE
18. INDEMNIFICATION
19. PATENTS
20. LIMITATION OF LIABILITY
21. REMEDIES
22. CONFIDENTIALITY
23. COMPLIANCE
24. NOTICES
25. ORDER OF PRECEDENCE
26. TERM
27. ENTIRE AGREEMENT
28. AMENDMENT
29. SEVERABILITY
30. WAIVER
31. HEADINGS
32. GOVERNING LAW
33. ASSIGNMENT; SUCCESSORS AND ASSIGNS
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EXHIBITS
A. CERTIFICATE OF INSURANCE
B. SOFTWARE LICENSE AGREEMENT
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SYSTEM PURCHASE AGREEMENT
This SYSTEM PURCHASE AGREEMENT ( "Agreement ") is made and entered into this 24 day of
November 2014( "Effective Date "), by and between City of Clearwater (the "Buyer ") and
Communications International, Inc. (the "Seller "). Seller and Buyer are sometimes referred to herein as
"Party" or collectively as the "Parties"
RECITALS:
WHEREAS, Seller delivered a proposal entitled "P -25 Radio System Upgrade" and originally dated
January 24, 2014, as amended on [dates] (collectively, the "Seller's Proposal ") to provide the radio
communication system and services requested by Buyer in the RFP;
WHEREAS, Buyer has selected Seller's Proposal and now desires to enter into an agreement with Seller to
provide Buyer with the radio communications system and services set forth in Seller's Proposal; and
WHEREAS, Buyer and Seller desire to enter into this Agreement to set forth in writing their respective
rights, duties and obligations hereunder.
NOW, THEREFORE, for and in consideration of the mutual promises contained herein and other good and
valuable consideration, the sufficiency and receipt of which are hereby acknowledged, it is mutually
agreed between the Parties as follows:
SECTION 1. DEFINITIONS
As used herein, the terms set forth below shall have meanings set forth below.
A. "Acceptance" shall mean acceptance of the System as set forth in Section 13 hereof.
B. "Acceptance Date" shall mean the date the System is accepted or deemed accepted as set forth in
Section 13 hereof.
C. "Acceptance Tests" shall mean the testing procedures either described in Seller's Proposal or mutually
agreed upon by Buyer and Seller to be performed to determine whether the System has met the
acceptance criteria either set forth in Seller's Proposal or as mutually agreed upon in writing by Buyer
and Seller.
D. "Certificate of Insurance" shall mean the certificate to be provided by Seller evidencing the insurance
coverage of Seller and the form of which certificate is set forth in Exhibit A attached hereto.
E. "Documentation Deliverables" shall mean the standard commercial quality manuals to be furnished
by the Seller to the Buyer pursuant to the terms set forth in Seller's Proposal and this Agreement.
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F. "Effective Date of the Agreement" shall be the date set forth on the first page of this Agreement.
G. "Hardware" shall mean, collectively, Terminal Hardware and Infrastructure Hardware, as defined
below.
H. "Infrastructure Hardware" shall mean the equipment, goods and materials to be supplied by Seller,
as further described in Seller's Proposal.
I. "Installation Schedule" shall mean the schedule either set forth in Seller's Proposal or otherwise
mutually agreed upon by Seller and Buyer in writing for the delivery of the Hardware and Software
and the performance of the Services described in the Statement of Work.
J. "RFP" shall mean Buyer's request for proposal as described in the recitals of this Agreement.
K. "Seller" shall mean Communications International, Inc. with offices at 4450 US HWY 1, Vero Beach,
Florida 32967.
L. "Seller's Proposal" shall mean the proposal provided by Seller to Buyer as described in the recitals of
this Agreement.
M. "Services" shall mean the services to be provided by Seller to Buyer as set forth in Seller's Proposal.
N. "Software" shall mean the proprietary computer software of Seller or Seller's affiliates as owned
exclusively by Seller, Seller's affiliates or Seller's suppliers, as appropriate, and as further defined in
and licensed to Buyer pursuant to the terms of the Software License Agreement.
O. "Software License Agreement" shall mean the System Software License Agreement set forth in
Exhibit B attached hereto.
P. "Statement of Work" shall mean the description of the work to be performed by Seller to deliver the
Hardware, install the System and provide the Services, all as described in Seller's Proposal.
Q. "System" shall mean the radio communications system comprised of the Hardware and Software to
be furnished by Seller to Buyer pursuant to the terms set forth in Seller's Proposal and this Agreement.
S. "Terminal Hardware" shall mean mobile units, portable units, control stations and related accessories
to be provided by Seller as listed in Seller's Proposal.
T. "Total Agreement Price" shall mean the price of the Hardware, the Software license and the Services
to be furnished by Seller to Buyer pursuant to the terms set forth in Seller's Proposal and this
Agreement.
SECTION 2. SCOPE OF WORK
Seller shall furnish, deliver and install the Hardware and Software for the System and provide the
Documentation Deliverables and Services in accordance with the terms of Seller's Proposal and this
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Agreement.
SECTION 3. BUYER'S OBLIGATIONS
A. The Buyer's obligations set forth in Seller's Proposal and this Agreement shall be performed by Buyer
in a timely and proper fashion in accordance with the Installation Schedule, or as otherwise agreed
upon by Buyer and Seller, to allow Seller to timely perform its obligations under this Agreement.
B. In addition to the obligations specifically identified in Seller's Proposal, Buyer shall also have the
following additional obligations;
(1) Buyer shall designate a Project Manager to act as Buyer's primary interface with the Seller.
(2) Buyer shall provide ready access to all sites owned, leased or otherwise controlled by Buyer.
(3) All towers, shelters and associated equipment provided or mandated by Buyer shall be satisfactory
in all manners to accommodate the System proposed by the Seller. Soil conditions at all sites
provided by or mandated by Buyer shall conform to normal soil standards in the area for the
contemplated construction of new facilities.
SECTION 4. FACILITIES SITES
Any sites where Seller will operate and perform System installation under the terms of this Agreement
must be approved by Buyer, whose approval shall not be unreasonably withheld, delayed or conditioned.
Buyer shall be responsible, at Buyer's expense, for obtaining all rights to use sites including, but not limited
to, all permits and licenses necessary to perform work on the sites and all FCC and FAA approvals. Buyer
shall be responsible for paying all utility charges to the appropriate utility for providing utility services to
the System installation areas.
SECTION 5. DELIVERY. TITLE AND RISK OF LOSS
A. Seller shall ship the Hardware to Buyer at Buyer's expense on or before the dates set forth in the
Installation Schedule. Partial deliveries shall be permitted. Upon delivery to the carrier, title to
each portion of the Hardware and all risk of loss or damage shall pass to Buyer; provided, however,
that Seller shall remain responsible until Acceptance of the System for loss or damage resulting from
the willful misconduct or negligent acts or omissions of Seller, its employees, agents, and
subcontractors. Buyer shall keep the Hardware fully insured for the total amount of all monies then
due, or yet to become due, to Seller with respect to this Agreement.
B. If Buyer fails to take delivery of any of the Hardware, Seller may place such Hardware in storage at
the place of manufacture or elsewhere. In such event (1) Seller shall notify Buyer of the placement
of any Hardware in storage, (2) Seller's delivery obligations shall be deemed fulfilled and title and all
risk of loss or damage shall thereupon pass to Buyer, (3) any amounts otherwise payable to Seller
upon delivery shall be payable upon presentation of Seller's invoices therefor, and (4) promptly upon
submission of Seller's invoices therefor Buyer shall reimburse Seller for all expenses incurred by Seller
such as preparation for and placement into storage, handling, storage, demurrage, inspection,
preservation and insurance.
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SECTION 6. PRICE
*see below
The Total Agreement Price to be paid by Buyer to Seller is U.S. Dollars (US$1 , 989, 1.9
The individual prices for the units of Hardware, the Software license and the Services to be performed are
as set forth in Seller's Proposal. *one million nine hundred eighty nine thousand
four hundred ninety six dollars and seventy
SECTION 7. TAXES four cents
In addition to any price specified herein, Buyer shall pay the gross amount of any present or future sales,
use, excise, export, import, value- added, or other similar tax applicable to the price, sale or any Products
or Services furnished hereunder or to their use by Seller or Buyer, or Buyer shall otherwise furnish Seller
with tax exemption certificates acceptable to all applicable taxing authorities.
SECTION 8. CHANGES AND ADDITIONS
A. In the event of any change in the Hardware as a result of the imposition after the Effective Date of
this Agreement of any requirements by any federal, state, or local government, an equitable
adjustment in the price shall be made to reflect any added cost and expense of such change and the
Agreement shall be modified in writing accordingly.
B. Notwithstanding any other provision hereof to the contrary, if the performance by Seller of all or any
part of this Agreement, through and including completion of System testing and Acceptance, is
delayed or interrupted, for any reason other than the fault of Seller, for a consecutive period
exceeding seven (7) days in any instance or a cumulative period exceeding thirty (30) days for all
instances then, upon written notice from Seller to Buyer, an equitable adjustment in the price shall
be made to reflect any increase in the cost of performance of this Agreement and the Agreement shall
be modified in writing accordingly.
SECTION 9. PAYMENTS
A. The Total Agreement Price for the Hardware, the Software license and the Services shall be paid by
the Buyer to Seller as follows:
A.1. Infrastructure Hardware:
1. Twenty percent (20%) of the Total Agreement Price shall be due at the time of the signing of the
Agreement by the Buyer and Seller.
2. Ten percent (10%) of the Total Agreement Price shall be due at the time of the first System design
review meeting or within sixty (60) days of the Effective Date of this Agreement if no System
design review meeting is scheduled, whichever occurs earlier.
3. Twenty percent (20%) of the Total Agreement Price shall be due at the time of Hardware factory
staging as described in the Project Schedule.
4. Twenty -five percent (25%) of the Total Agreement Price shall be due upon Hardware shipment as
described in the Project Schedule.
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5. Ten percent (10 %) of the Total Agreement Price for Services shall be due in monthly installments
during implementation of the System as described in the Project Schedule.
6. Ten percent (10 %) of the Total Agreement Price shall be due upon substantial completion of the
Hardware installation (exclusive of any punch list items) as described in the Project Schedule.
7. Five percent (5%) of the Total Agreement Price plus any remaining Agreement Value for all
Hardware, Software and Services shall be due upon final Acceptance of the System.
A.2. Terminal Hardware:
One Hundred Percent (100%) of the purchase price of Terminal Hardware shall be invoiced upon
shipment of unit on a per unit basis.
B. Payment Dates
The Payment(s) associated with the event(s) above shall be due thirty (30) days following the date of
Seller's invoice.
C. Other Amounts
Any other amounts due Seller hereunder shall be due upon Buyer's receipt of Seller's invoice.
D. Late Payments
All amounts past due over thirty (30) days shall accrue interest from their due date at the rate of one
and one -half percent (1 -1/2 %) per month (or such lesser rate as may be the maximum permissible
rate under applicable law).
E. Security Interest
Until the Total Agreement Price is fully paid to Seller, Seller shall retain and Buyer hereby grants to
Seller a purchase money security interest in the Hardware and Buyer shall join with Seller in executing
any required filings to perfect such security interest.
SECTION 10. SUBCONTRACTING
Seller may subcontract any portion of work to be performed by Seller hereunder provided that Seller shall
be responsible for the performance and work of any such subcontractors.
SECTION 11. EXCUSABLE DELAYS
A. Seller shall not be liable for delays in delivery or failure to perform due directly or indirectly to (1)
causes beyond Seller's reasonable control, (2) Acts of God, acts (including failure to act) of any
governmental authority (de jure or de facto), wars (declared or undeclared), riots, revolutions, strikes
or other labor disputes, fires, floods, sabotage, nuclear incidents, earthquakes, storms, epidemics, (3)
Seller's inability to timely obtain necessary materials, items, components or services from suppliers
who are affected by the foregoing circumstances or (4) the failure of the Buyer to perform its
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obligations hereunder in a timely manner. The foregoing shall apply even though any of such causes
exists at the time of signature of the Agreement by Seller or occurs after delays in Seller's performance
of its obligations due to other reasons.
B. In the event of any delay or failure excused by this Section, Seller shall as soon as practical notify Buyer
and shall at the same time, or at the earliest practical date after such notice, specify the revised
delivery and performance dates. In the event of such delay, the time of delivery or of performance
shall be extended for a reasonable time period to compensate for the time lost by Seller by reason of
the delay.
SECTION 12. SELLER'S INSURANCE
A. Seller shall maintain in force at all times during Seller's performance under this Agreement not less
than the following insurance coverage with insurers authorized to do business in the state(s) in which
work hereunder is to be performed by Seller:
(1) workers compensation insurance as required by law;
(2) general liability insurance with limits of liability of not less than $1,000,000 combined single
limits for bodily injury and property damage per occurrence; and
(3) motor vehicle liability insurance with limits of liability of not less than $500,000 combined single
limits for bodily and property damage per occurrence.
B. Within ten (10) business days of execution of this Agreement, Seller shall provide Buyer with a
Certificate of Insurance set forth in Exhibit A evidencing the insurance coverage.
SECTION 13. TESTING AND ACCEPTANCE
A. Seller shall notify Buyer that the System is ready for Acceptance Tests at least ten (10) days before
commencement of the Acceptance Tests. Buyer and Seller shall jointly commence the Acceptance
Tests on the date specified in Seller's notice (or other mutually agreeable date) and a representative
of Seller and a representative of Buyer shall sign off on the form provided as part of the test procedure
whether each item of the test was passed or failed. If Buyer does not have a representative attend
the Acceptance Tests, Seller shall proceed with those tests and immediately forward the test results
to Buyer. If the System does not fulfill the requirements of the Acceptance Tests, Seller shall correct
the defects at no additional cost to Buyer as soon as practicable. Upon correction of the defects the
Acceptance Tests for the applicable part of the System shall be repeated in accordance with the
procedures set forth in this Section. Successful completion of the Acceptance Test is the sole criterion
for technical system acceptance and the initiation of the warranty period. Final system acceptance
shall occur when the Hardware and Software for the System, Documentation Deliverables and
Services have been furnished, delivered, installed and tested.
B. Notwithstanding the acceptance testing of the System set forth in Section 13.A above, if Buyer
commences use of any portion of the System for its intended purpose, other than for the express
purpose of training or testing as mutually agreed upon by Seller and Buyer in writing, prior to System
Acceptance, the applicable portion of the System shall be deemed accepted by Buyer. The final
payment for the applicable portion of the System shall be due and payable upon such acceptance.
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The Warranty Period for the applicable portion of the System put into use together with the
associated installation Services shall be deemed to have commenced concurrently with the use of the
applicable portion of the System for its intended purpose. The use of the applicable portion of the
System for its intended purpose shall be deemed to have occurred when Buyer commences to use
and rely primarily on the applicable portion of the System for its communications.
C. As used in this Agreement, the Acceptance Date and the "Acceptance" of the System shall be deemed
to occur upon the earlier of (1) the date on which the System is deemed accepted pursuant to
subsection (A) above or (2) the date on which the System is deemed accepted pursuant to subsection
(B) above.
D. Buyer and Seller agree that in the process of completing the Acceptance Tests most, if not all; of the
Acceptance Tests can be successfully completed with only a minor number of punch list items
remaining to be completed. In such event, Buyer and Seller shall mutually (and reasonably) agree
upon the punch list items to be completed, the value of those items and that "conditional acceptance"
of the System has occurred. For the purpose of initiating the Warranty Period, satisfying the
Installation Schedule requirements and the release of any retained funds (other than the value of the
punch list items) conditional acceptance shall constitute "Acceptance" of the specific portion or phase
of the System. This conditional acceptance shall not, however, release Seller from its obligations to
complete the remaining punch list items by the dates set forth on the punch list schedule.
SECTION 14. SOFTWARE LICENSE
Subject to the terms and conditions of the Software License Agreement attached hereto as Exhibit B.
Buyer is granted a license to use the Software only in conjunction with the System purchased under this
Agreement. "Software" means the "Licensed Programs" as defined in the Software License Agreement.
SECTION 15. COVERAGE
Seller's representations concerning the distance at which usable radio signals will be transmitted and
received by Hardware supplied hereunder are represented by coverage maps included in Seller's Proposal.
SECTION 16. WARRANTIES
A. Mobile and portable radios ( "Subscriber Units ") and Hardware and installation Services furnished by
Seller under this Agreement are warranted by the Seller to be free from defects in material and
workmanship and shall conform to the Agreement specifications for a period equal to the longer of
(1) twelve (12) months or (2) in the case of Subscriber Units or Hardware, the number of months
under the warranty offered by the manufacturer of such equipment, from the Acceptance Date (the
"Warranty Period "). Any and all claims for breach of this warranty are conclusively deemed waived
unless made within the Warranty Period. The warranty period for additional Subscriber Units and
Hardware purchased by Buyer from Seller after System Acceptance shall be for a period equal to the
longer of (1) twelve (12) months or (2) the number of months under the warranty offered by the
manufacturer of such equipment, from the date the equipment is delivered to Buyer. (the "Additional
Warranty Period "). Any and all claims for breach of this warranty are conclusively deemed waived
unless made within the Additional Warranty Period.
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B. For purposes of this Warranty the nickel- cadmium batteries supplied by Seller shall be deemed
defective if (1) the battery capacity is less than 80% of rated capacity or (2) the battery develops
leakage. Replacement batteries shall be warranted only for the remaining unexpired portion of the
Warranty Period. This warranty becomes void if (1) the battery has been subjected to any kind of
misuse, detrimental exposure, or has been involved in an accident, or (2) the battery is used in
equipment or service other than the Hardware for which it is specified.
C. During the Warranty Period if any component of the Hardware or portion of the installation Services
fails to meet the foregoing warranties, Seller's sole obligation and Buyer's exclusive remedy under this
warranty shall be the correction by Seller of the failure at Seller's option (1) by repairing any defective
component of the Hardware, or (2) by furnishing any necessary repaired or replacement parts, or (3)
by the redoing of the faulty installation. Any such failure, or the repair or replacement of the
defective component or the redoing of any installation, shall not extend the Warranty Period.
Where such failure cannot be corrected by Seller's reasonable efforts, the Parties will negotiate an
equitable adjustment in price. Seller will be responsible for all charges incurred in returning defective
parts to Seller's plant and shipping repaired or replacement parts to Buyer. All warranty labor must
be performed by an authorized service group approved by Seller either at its place of business, for
mobile or portable equipment, or at the Buyer's location for fixed location equipment should Seller
determine that it is not feasible to return the fixed location equipment to Seller's authorized service
group.
D. Seller's obligations shall not apply to (1) Hardware or components thereof which are normally
consumed in operation, or (2) Hardware or components thereof which have a normal life inherently
shorter than the Warranty Period, or (3) defects which are the result of improper storage, use, or
installation performed by other than Seller, maintenance performed by other than Seller, or repair
performed by other than Seller, or (4) Hardware which has been subjected to any other kind of misuse
or detrimental exposure or has been involved in an accident, or (5) Hardware or installations altered
or repaired by any Party other than Seller without Seller's prior written consent.
E. Coverage Warranty. Notwithstanding the other provisions of this Section 16, Seller's only Warranty
as to radio coverage is that the System, prior to Acceptance, shall have successfully passed the
coverage tests in the Acceptance Test Plan.
F. Software. The warranty for the Software is set forth in the Software License Agreement.
G. THE WARRANTIES AND REMEDIES SET FORTH IN THIS SECTION AND IN THE SOFTWARE LICENSE
AGREEMENT CONSTITUTE THE ONLY WARRANTIES WITH RESPECT TO THE HARDWARE, SOFTWARE
AND SERVICES AND THE BUYER'S EXCLUSIVE REMEDIES IN THE EVENT SUCH WARRANTIES ARE
BREACHED. THEY ARE IN LIEU OF ALL OTHER WARRANTIES WHETHER WRITTEN, ORAL, EXPRESS,
IMPLIED, OR STATUTORY INCLUDING, WITHOUT LIMITATION, THE WARRANTY OF MERCHANTABILITY
AND THE WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE. IN NO EVENT SHALL SELLER BE LIABLE
FOR SPECIAL, CONSEQUENTIAL OR INDIRECT DAMAGES INCLUDING, BUT NOT LIMITED TO, LOSS OF
PROFITS OR REVENUES.
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SECTION 17. INTERFERENCE
Radio system coverage and performance are subject to degradation due to anomalous propagation and
interference beyond the reasonable control of Seller. Seller cannot be responsible for degradation or
disruption of Service caused by operation of other radio systems or by natural phenomena or other
interference over which the Seller has no reasonable control. In the event of a case of degradation due
to interference by an outside Party, Seller will provide engineering support to Buyer at Buyer's expense
to support Buyer's efforts in resolving the interference issue with the outside Party.
SECTION 18. INDEMNIFICATION
A. Seller shall be responsible for and agrees to indemnify Buyer and hold Buyer harmless from and
against all third Party claims, demands and causes of action for direct damages (including reasonable
legal fees) for personal injuries or damage to tangible property arising out of or resulting from the
performance of its work under this Agreement to the extent directly resulting from the willful
misconduct or negligent acts or omissions of Seller, Seller's officers, agents, employees, or
subcontractors. Buyer agrees to notify Seller as soon as practical of any third Party claim, demand or
cause of action for which Buyer will request indemnification from Seller. Buyer will provide Seller with
the necessary information and assistance to defend such claim, demand or cause of action.
B. Buyer shall be responsible for and agrees to indemnify Seller and hold Seller harmless from and
against all third Party claims, demands and causes of action for direct damages (including reasonable
legal fees) for personal injuries or damage to tangible property to the extent directly resulting from
the willful misconduct or negligent acts or omissions of Buyer, Buyer's officers, officials, agents,
employees or subcontractors. Seller agrees to notify Buyer as soon as practical of any third Party claim,
demand or cause of action for which Seller will request indemnification from Buyer. Seller will provide
Buyer with the necessary information and assistance to defend such claim, demand, or cause of
action. Nothing contained herein shall be construed as a waiver of any immunity from limitation of
liability the Buyer is entitled to under the doctrine of sovereign immunity or section 768.28 F.S.
SECTION 19. PATENTS
A. Seller warrants that the System furnished hereunder shall be delivered free of any rightful claim of
any third Party for infringement of any United States patent or copyright. If Buyer notifies Seller
promptly of the receipt of any claim that the System infringes a United States patent or copyright and
gives Seller information, assistance and exclusive authority to settle and defend such claim, Seller at
its own expense shall defend, or may settle, any suit or proceeding against Buyer so far as based on a
claimed infringement which breaches this warranty. If, in any such suit arising from such claim, the
continued use of the System for the purpose intended is enjoined by any court of competent
jurisdiction, Seller shall, at its expense and option, either (1) procure for Buyer the right to continue
using the System, (2) modify the System so that it becomes non - infringing, (3) replace the System or
portions thereof so that it becomes non - infringing, or (4) remove the System and refund the purchase
price (less reasonable depreciation for use). The foregoing states the entire liability of Seller for patent
or copyright infringement by the System and is subject to any limitation of total liability set forth in
this Agreement.
B. The preceding subsection (A) shall not apply to (1) any portion of the System which is manufactured
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to Buyer's design (2) the use of the System in conjunction with any other apparatus or material not
supplied by Seller to the extent that such conjoined use causes the alleged infringement. As to any
portion of the System or use described in the preceding sentence, Seller assumes no liability
whatsoever for patent infringement.
C. THE PATENT AND COPYRIGHT WARRANTY AND INDEMNITY OBLIGATIONS RECITED ABOVE ARE IN LIEU
OF ALL OTHER PATENT AND COPYRIGHT WARRANTIES AND INDEMNITIES WHATSOEVER, WHETHER
ORAL, WRITTEN, EXPRESS, IMPLIED OR STATUTORY.
SECTION 20. LIMITATION OF LIABILITY
IN NO EVENT, WHETHER AS A RESULT OF BREACH OF AGREEMENT, WARRANTY, TORT (INCLUDING
NEGLIGENCE OR INFRINGEMENT), STRICT LIABILITY OR OTHERWISE, SHALL SELLER, OR ITS
SUBCONTRACTORS OR SUPPLIERS, BE LIABLE FOR ANY SPECIAL, CONSEQUENTIAL, INCIDENTAL,
INDIRECT OR EXEMPLARY DAMAGES INCLUDING, BUT NOT LIMITED TO, LOSS OF PROFITS OR
REVENUES, LOSS OF USE OF THE HARDWARE OR ANY OTHER EQUIPMENT, COST OF CAPITAL, COST
OF SUBSTITUTE GOODS, FACILITIES, SERVICES OR DOWNTIME COSTS.
SECTION 21. REMEDIES
A. In the event of a material breach of this Agreement by Seller which shall continue for one hundred
twenty (120) or more days after written notice of such breach (including a reasonably detailed
statement of the nature of such breach) shall have been given to Seller by Buyer, Buyer shall be
entitled to avail itself cumulatively of any and all remedies available at law or in equity (provided such
remedies are not otherwise limited under the terms of this Agreement) and either (1) suspend
performance of its payment obligations under the Agreement for as long as the breach continues
uncorrected or (2) terminate this Agreement by written notice to Seller if the breach remains
uncorrected.
B. In the event of (1) any failure by Buyer to make any payment when due or (2) any other material
breach of this Agreement by Buyer which shall continue for one hundred twenty (120) or more days
after written notice of such breach (including a reasonably detailed statement of the nature of such
breach) shall have been given to Buyer by Seller, Seller shall be entitled to avail itself cumulatively of
any and all remedies available at law or in equity (provided such remedies are not otherwise limited
under the terms of this Agreement) and either (1) suspend performance of its obligations under this
Agreement for as long as the breach remains uncorrected or (2) terminate this Agreement by written
notice to Buyer if the breach remains uncorrected.
SECTION 22. CONFIDENTIALITY
The Parties understand that the City of Clearwater (as the Receiving Party) is an agency subject to Florida's
expansive public record laws, which are found in chapter 119, Florida Statutes. Pursuant to Florida Statute
section 812.081(1)(c), "trade secret" means the whole or any portion or phase of any formula, pattern,
device, combination of devices, or compilation of information which is for use, or is used, in the operation
of a business and which provides the business an advantage, or an opportunity to obtain an advantage,
over those who do not know or use it. "Trade secret" includes any scientific, technical, or commercial
information, including any design, process, procedure, list of suppliers, list of customers, business code, or
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improvement thereof. Irrespective of novelty, invention, patentability, the state of the prior art, and the
level of skill in the business, art, or field to which the subject matter pertains, a trade secret is considered
to be:
1. Secret;
2. Of value;
3. For use or in use by the business; and
4. Of advantage to the business, or providing an opportunity to obtain an advantage, over those who do
not know or use it.
When the Disclosing Party thereof takes measures to prevent it from becoming available to persons other
than those selected by the Disclosing Party to have access thereto for limited purposes. Documents
containing trade secrets, as defined herein and as may be amended by Florida Statute, shall be stamped
"confidential" so as to let the Receiving Party know to exempt from public access. The City of Clearwater,
as the Receiving Party, shall retain all documents as required by chapter 119, Florida Statutes. If trade
secret information is provided and such documents are marked "confidential," then the City shall exempt
such documents from public access and make such documents confidential.
SECTION 23. COMPLIANCE
Seller agrees to comply with all federal, state and local laws, ordinances, codes, rules and regulations in
effect as of the Effective Date of this Agreement that may in any way affect the work by Seller hereunder.
Any Hardware or Software furnished by Seller under this Agreement shall comply in all material respects
with federal, state and local laws and regulations applicable to the manufacture, packing, sale and
shipment of such Hardware or Software as of the Effective Date of this Agreement and shall comply with
any amendments thereto which may have come into effect prior to the time such Hardware or Software
are delivered provided that the price and, if necessary, delivery of such Hardware or Software shall be
equitably adjusted to compensate Seller for the effect of compliance with any such amendments.
SECTION 24. NOTICES
Notices and other communications between the Parties shall be transmitted by facsimile or in writing to
the Parties at the addresses set forth below and shall be deemed effective upon receipt by the receiving
Party. Either Party may change its address by giving notice in writing thereof to the other Party.
IF TO BUYER:
City of Clearwater
1112 S. Osceola Ave
Clearwater Florida 33756
Attn: Earl Gloster
IF TO SELLER:
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E -mail Address:Earl.Gloster @myclearwater.com
14
Communications International, Inc.
4450 USHWY1
Vero Beach, Florida 32967
Attn: Joe loco
WITH A COPY TO:
Communications International, Inc.
4450 US HWY 1
Vero Beach, Florida 32967
Attn: Agreement Administration
SECTION 25. ORDER OF PRECEDENCE
E -mail Address: jioco @ask4ci.com
E -mail Address: RRewiski @ask4ci.com
The Seller's Proposal and the following Exhibits are expressly incorporated herein by reference and,
together with this Agreement, constitute the Agreement Documents. In the event of a conflict among
or between the Agreement Documents, the documents shall control in the order of precedence set forth
below:
1. Amendments to this Agreement
2. This Agreement
3. Exhibit B - Software License Agreement
4. Seller's Proposal
SECTION 26. TERM
The term of this Agreement shall commence upon the Effective Date of this Agreement and shall run
through the end of the Warranty Period (as defined in the Warranty Section) except as otherwise
provided in this Agreement. The term of the Software license is set forth in the Software License
Agreement.
SECTION 27. ENTIRE AGREEMENT
This Agreement together with all Exhibits and Seller's Proposal which is incorporated herein by reference
constitute the entire understanding and agreement between Buyer and Seller concerning the subject
matter hereof and any negotiations, representations, promises, understandings, proposals, agreements,
warranties, course of dealing or trade usage, oral or written, not expressly contained or referenced herein
shall not be binding on either Party. SELLER DOES NOT ASSUME ANY OBLIGATIONS OR LIABILITIES IN
CONNECTION WITH THE SALE OF THE SYSTEM OTHER THAN THOSE EXPRESSLY STATED IN THIS
AGREEMENT AND DOES NOT AUTHORIZE ANY PERSON (INCLUDING SELLER'S MANUFACTURER'S
REPRESENTATIVES AND SALES AGENTS) TO ASSUME FOR SELLER ANY OTHER OBLIGATIONS OR LIABILITIES.
SECTION 28. AMENDMENT
No modification or amendment or other change to this Agreement shall be binding on either Party unless
set forth in a writing signed by both Buyer and the Project Manager or other authorized representative of
15
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Seller.
SECTION 29. SEVERABILITY
The invalidity, in whole or in part, of any Section or part of any Section of this Agreement shall not affect
the validity of the remainder of such Section or the Agreement.
SECTION 30. WAIVER
No term of this Agreement may be waived except in a writing signed by the Party waiving enforcement.
No term of this Agreement shall be deemed to be waived by reason of any failure to previously enforce
such term.
SECTION 31. HEADINGS
Section headings are inserted for convenience only and shall not be used in any way to construe the
meaning of terms used in this Agreement.
SECTION 32. GOVERNING LAW
The validity, performance and all matters relating to the interpretation and effect of this Agreement and
any amendment thereto shall be governed by the State of Florida, without giving effect to its conflict of
laws provisions.
SECTION 33. ASSIGNMENT; SUCCESSORS AND ASSIGNS
This Agreement shall not be assigned by either Party without the written consent of the other Party, which
shall not be unreasonably withheld or delayed. Notwithstanding the above, Seller may assign this
Agreement, without consent, (a) in whole or in part, to an affiliate or subsidiary or (b) in the event of a
change of controlling ownership interest (either directly or indirectly) in Seller or in the event of merger,
recapitalization, consolidation, other business combination or sale of all or substantially all of the assets
of Seller.
IN WITNESS WHEREOF, this Agreement has been duly executed as of the "Effective Date ".
City of Clearwater
Communications International, Inc.
** see attached for City signatures
By: By:
Name: Name:
Title: Title:
Witness: Witness:
23A le
C o
Name: Name: 7ria,k#A_ w " `
16
ver 2 11 -24 -2014
SYSTEM PURCHASE AGREEMENT
CITY OF CLEARWATER
AND
COMMUNICATIONS INTERNATIONAL, INC.
NOVEMBER 24, 2014
Countersigned:
eA)r r\CP ARICD3
George N. Cretekos
Mayor
Ap
oved as
6. rm:
4'
Camilo Soto
Assistant City Attorney
CITY OF CLEARWATER, FLORIDA
By:
William B. Horne II
City Manager
Attest:
Tiar o emarie CaII
17
City Clerk
EXHIBIT A
CERTIFICATE OF INSURANCE
21c 18
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EXHIBIT B
SOFTWARE LICENSE AGREEMENT
)Mx 19
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