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REV: 12-06-2022 MI
<br />upgrade the Equipment into good and maintainable condition may be invoice separate to this Agreement. At
<br />Customer’s sole election, the Company shall perform any such necessary work at prevailing Company’s T&M Rates.
<br />j.Documentation and Record Access: All relevant documentation and records needed to perform the Support
<br />Services on the Equipment, which may include information relating to the equipment, cable plant and relevant software
<br />shall be made available to Company for inspection prior to the commencement of the Support Services under this SA.
<br />Work determined to be necessary to bring such records into good and usable condition must be completed prior to
<br />the commencement of Support Services under this SA. At Customer’s sole election, the Company shall perform any
<br />such necessary work at the prevailing Company’s T&M Rates.
<br />k. Additional Work: When Customer requests services outside the scope of this SA, Company will utilize its
<br />commercially reasonable best efforts to provide such services in a timely manner at the Company’s T&M Rates.
<br />l.Premature Termination and Default: Upon and during a Customer Default as defined in this subsection, Company
<br />in its sole discretion may suspend Support Services and other services it provides under this SA, and/or bill for Support
<br />Services at then-applicable T&M Rates for such services performed, and/or suspend all credit and perform on a cash-
<br />only basis, and/or pursue any other legal or equitable remedies available.
<br />i. A “Customer Default” includes:
<br />1. Customer’s failure to meet any undisputed payment obligation under this SA or any other agreement
<br />between Company and Customer, which failure continues for ten (10) business days after date of
<br />written notice of such failure, or
<br />2. Customer’s failure to perform any other material condition or material obligation under this SA or
<br />any other agreement between Company and Customer, which failure continues for thirty (30) days
<br />after date of written notice specifying the nature of such failure and Customer then fails to continue
<br />to diligently cure such failure. If Company terminates this SA under this subsection, Customer shall
<br />be liable for any and all outstanding charges up to the date of termination.
<br />m.Customer Cancellation: Customer may cancel this SA for any reason at any time upon providing Company thirty
<br />(30) days advance written notice of intent to terminate this SA.
<br />IV. Indemnification
<br />a. Consultant will defend, indemnify and hold harmless (collectively “Indemnify”) City and its officers, boards and
<br />commissions, agents, employees and volunteers (collectively “Indemnitees”) from and against all claims, damages,
<br />losses and expenses including attorney fees (collectively “Losses”) arising out of the performance of the Services,
<br />caused or claimed to be caused by the acts, errors and/or omissions of Consultant, or any Consultant Personnel or
<br />anyone for whose acts any of them may be liable (collectively, “Responsible Parties”). Consultant’s responsibilities
<br />under this Section IV include liability arising from, connected with, caused by, or claimed to be caused by the active
<br />or passive negligent acts or omissions of City, which may be in combination with the acts or omissions of any
<br />Responsible Party, provided that Consultant’s duty to Indemnify will not include any Losses arising from the sole
<br />negligence or willful misconduct of City.
<br />b. Notwithstanding Consultant’s obligation to defend City hereunder, City has the right to conduct its own defense and
<br />seek reimbursement for reasonable costs of defense from Consultant, if City chooses to do so.
<br />c. Consultant agrees to pay any and all costs City incurs enforcing the provisions set forth in this Section IV.
<br />d. Subsection (IV)(a) notwithstanding, in accordance with California Civil Code Section 1668, as amended, nothing in
<br />this Agreement will be construed to exempt the City from its own fraud, willful injury to the person or property of
<br />another, or violation of law. Nothing contained in this Agreement will be construed to require Consultant to Indemnify
<br />Indemnitees against any responsibility or liability in contravention of California Civil Code Section 2782.8, as amended.
<br />To the extent, this Agreement is a “construction contract” as defined by California Civil Code section 2783, as
<br />amended; such duties of Consultant to indemnify will not apply when to do so would be prohibited by California Civil
<br />Code Section 2782 as amended.
<br />e. The Parties expressly agree that any reasonable payment, attorney's fee, cost or expense City incurs or makes to or
<br />on behalf of an injured employee under the City's self-administered workers' compensation plan is included as a loss,
<br />expense or cost for the purposes of this Section IV.
<br />f. Acceptance by City of Consultant’s services and duties will not operate as a waiver of City’s rights under this Section
<br />IV.
<br />g. The parties expressly agree that this Section IV will survive the expiration or early termination of the Agreement.
<br />h. Company shall not be liable for any loss, cost, expense, or damages resulting from unauthorized calls made by
<br />Customer using the Equipment, or other fraudulent activities by Customer from Equipment, except where the
<br />ATTY/AGR.2022.417/Packet Fusion, Inc. (Page 9 of 11)
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