HomeMy WebLinkAboutC88-018 ECS contractAGREEMENT
FOR PURCHASE OF
COMPUTER PRODUCTS AND SERVICES
C88 -18 -01
This Agreement is made this day of e b rva,-
1988, between
Eagle Computer Systems, Inc., a Colorado corporat on, (hereinafter "ECS")
and Eagle County Government (hereinafter "Customer "), on the terms and
conditions set forth herein:
1. DESCRIPTION OF COMPUTER PRODUCTS AND SERVICES:
ECS hereby agrees to provide and Customer hereby agrees to obtain computer
products and services described in Exhibit A hereto (the "Products and
_ Services "). Products supplied may be a proprietary product of ECS or
other party whose product ECS provides to Customer.
2. PRICE, PAYMENT AND TAXES:
Customer shall pay to ECS $35,754.00 as full consideration for the
Products and Services, as set forth in Exhibit A attached hereto, and as
scheduled in Exhibit B. To this amount shall be added all freight, and
all applicable federal, state, municipal or other government excise,
sales, use, occupational or like taxes now in force or enacted in the
future and applicable retroactively or before payment, and shall be
payable by the Customer unless Customer provides ECS a certificate of
exemption or similar document or proceeding that exempts the sale from the
applicable taxes. All amounts are due and payable as set forth in said
Exhibit B.
3• TERM OF PROPOSAL:
Changes in operating costs, contract commitments and equipment
availability force us to limit the term of the proposal to ninety (90)
days. Pricing and delivery schedules may have to be modified in any
proposal resubmitted after this 90 -day period.
4. SOFTWARE:
Unless specified in a separate "Agreement for Software License ", ECS does
not assume any responsibility for software procurement, installation or
training, or adequacy of the software configuration to meet Customer
requirements.
5• RETURNS:
Except as described below, returns are not accepted by ECS.
a. "Dead on Arrival" ( "DOA ") Merchandise: Any products delivered to
Customer or shipped to Customer by ECS that do not work properly within
the first 15 days of.invoice are considered DOA, and will be replaced or
repaired at the option of ECS at no direct cost to Customer. Customer
will call ECS for a Return Merchandise Authorization ( "RMA ") Number and be
prepared to give Customer name, invoice number, a brief description of the
defective product, and a brief description of the defect. DOA returns
must include all of the contents of the package as it was received, as
well as a copy of the invoice. The RMA Number must be clearly written on
the shipping label, not on the box.
b. In- Warranty Returns: ECS passes through to Customer the product
warranties provided by the manufacturers. ECS will furthermore supplement
manufacturer's warranty so that all of the hardware is warranted, on -site
for 90 days. Beyond the DOA period, ECS will repair products on a top
priority basis, and the repaired unit will be returned to Customer in the
shortest time possible. Customer pays freight charges for return shipment
to ECS; ECS pays for return to Customer.
6. PREPARATION OF SITE:
Customer shall, prior to the installation of Hardware, prepare the
installation site in such a manner that no undue delay will occur in the
instance that it is ECS's responsibility to install the Hardware.
7. INSTALLATION:
Customer shall be responsible for the placing of each item of Hardware in
the locations specified by Customer. For ECS - installed Hardware, ECS
shall perform the inspection and diagnostic checks of the Hardware using
ECS's standard test procedures. For Customer - installed Hardware, Customer
shall be responsible for installation of the Hardware in accordance with
the instructions provided by the manufacturer.
8. MAINTENANCE:
(See Exhibit C, if any.) The following terms and conditions shall apply
to the maintenance service (the "Service ") provided on the Hardware for
which service charges are listed in Exhibit C hereof:
a. Scope of Maintenance: ECS agrees to provide service availability
during ECS's normal business hours in accordance with ECS policy while the
Hardware is operated in accordance with manufacturer's published
specifications. The Service provided is based on specific performance
standard needs of individual Hardware items as determined by ECS.
Service, preventive and remedial, includes adjustments, lubrication and
replacement of parts deemed necessary by ECS. Replacement parts will be
furnished on an exchange basis when installed by ECS and will be new or
equivalent to new in performance. Replaced parts will become the property
of ECS.
b. Term: Service shall commence on the date specified in Exhibit C
hereof, and shall continue for an initial period of one (1) year.
Thereafter, Service shall automatically be renewed for successive one -year
period(s) subject to ECS's then current prices, terms and conditions until
terminated by either party upon ninety (90) days prior written notice.
C. Period of Service Availability: The Principal Period of Maintenance,
8:00 a.m, to 5:00 p.m. Monday through Friday, excluding ECS holidays
(hereinafter "PPM") is defined as the time within which ECS will perform
Eagle Computer Systems, Inc.
Page 2
x t s✓ � ,
the services described herein. The Customer may request extensions to the
PPM subject to ECS's then current terms, conditions and prices.
d. Reconditioning: ECS may charge for the reconditioning of Hardware
which, in ECS's opinion, cannot be properly or economically repaired on
site due to excessive wear or deterioration. According to current ECS
policy, these charges will not be applicable to CPU's and controllers
within five (5) years of installation, disk drives and workstations within
three (3) years of installation, or other Hardware within one (1) year of
initial installation. In the event reconditioning becomes necessary after
the expiration of the appropriate time period as stated above, ECS will
provide to Customer an estimate of reconditioning charges for said
item(s). If the Customer does not elect to have the Hardware item(s)
reconditioned, ECS may withdraw Service for such item(s).
e. Service Limitation: Service is contingent upon the proper use of the
Hardware in accordance with manufacturer's published specifications and
does not include any of the following:
i. Electrical work external to the Hardware or maintenance of
accessories, attachments or other devices not furnished by ECS;
ii. Service necessitated by supply items or software not furnished
by ECS;
iii. Service connected with relocation of the Hardware;
iv. Service which is unsafe or impractical for ECS to render because
of alterations in the Hardware or their connection by mechanical or
electrical means to non -ECS furnished machines or devices;
V. Service on Hardware located in an unsafe or hazardous
environment as determined by ECS;
vi. Service necessitated by elements external to the Hardware
including but not limited to humidity, temperature, power or air
conditioning which are not within ECS's specifications;
vii. Service resulting from accident, neglect, alterations, improper
use or misuse of the Hardware or necessitated by repairs attempted by
non -ECS personnel.
f. Responsibilities of Customer:
i. Throughout the term(s) of this Agreement, the Customer shall
maintain site conditions within the environmental specifications stated by
Hardware manufacturer.
ii. The Customer shall notify ECS of Hardware failure and allow ECS
full and free access to the Hardware for performing Service.
iii. The Customer shall be responsible for maintenance and
installation of any non -ECS furnished common carrier related equipment or
Eagle Computer Systems, Inc.
Page 3
communication service. Charges incurred for communication facilities are
the responsibility of Customer whether incurred by Customer or by ECS
service representatives while performing Service on the Hardware.
g. Charges:
i. Charges for Service shall commence on the first day following
the expiration of the warranty, or, if the Hardware was not under
warranty, then on the date of ECS's acceptance of this Agreement. All
charges for Service, whether annual or monthly, will be invoiced in
advance. Partial billings will be prorated.
ii. Hardware located outside of a Standard Service Area will be
subject to ECS's then current applicable mileage surcharge.
iii. If the Customer requires Service other than during the periods
of contracted Service coverage, such Service, on a best efforts basis,
will be provided at ECS's applicable hourly rates and terms then in
effect.
iv. ECS may at any time after the initial one -year period change the
Service charges by giving to Customer at least thirty (30) days prior
written notice.
V. Failure of Customer to pay any charges when due shall constitute
sufficient cause for ECS to suspend or terminate Service under this
Agreement.
h. Limited Warranty: THE EXPRESS WARRANTIES SET FORTH IN THIS AGREEMENT
ARE IN LIEU OF ALL OTHER WARRANTIES, EXPRESS OR IMPLIED.
9. GENERAL TERMS AND CONDITIONS:
The following terms and conditions shall apply to any Hardware sold and /or
Software licensed (hereinafter individually or collectively referred to as
"Products ") and /or maintenance service (hereinafter referred to as
"Service ") provided to Customer under this Agreement.
a. Acceptance:
i. For ECS installed Products, satisfactory completion of ECS's
standard test procedure, and an ECS Call Report Form verifying same signed
by an ECS representative and by a representative of Customer will be
sufficient to establish acceptance.
ii. If installation is not performed by ECS, ECS shall be under no
obligation to perform any acceptance test procedures and the date of
acceptance shall be the date of delivery to Customer.
b. Payment and Credit: Unless otherwise agreed in writing, final payment
for Products or Service hereunder shall be due upon delivery. ECS
formatted invoices will be issued on or after the date of shipment. If in
Eagle Computer Systems, Inc.
Page 4
the judgment of ECS, the financial condition of the Customer at any time
does not justify the commencement or continuance of shipment on the terms
specified herein, ECS may, in addition to all other remedies it may have
at law or in equity, make a written demand for full or partial payment in
advance, suspend its performance until such payment is made, or cancel the
Customer's order. If the Customer fails to pay any charges when due and
payable, Customer agrees that ECS shall have the right to invoice and
Customer will pay all costs, including reasonable attorney fees expended
in collecting overdue charges and a late payment charge of 1.5% per month
but not in excess of the lawful maximum on the unpaid balance.
c. Taxes: Prices and license fees are exclusive of all federal, state,
municipal or other political subdivision, excise, sales, use, property,
occupational, or like taxes now in force or enacted in the future and are
therefore subject to an increase equal to any such taxes ECS may be
required to collect or pay upon the sale or delivery of the Products or
Service purchased or licensed hereunder, except taxes based on ECS's net
income.
d. Terms of Shipment:
i. All products will be shipped F.O.B. ECS's facility or, in the
case of a "drop" shipment, F.O.B. manufacturer or F.O.B. distributor. In
the absence of specific instructions, ECS will select the carrier, but the
carrier will not be construed to be an agent of ECS.
ii. ECS RESERVES THE RIGHT TO MAKE PARTIAL SHIPMENTS.
e. Cancellation: Customer may, without charge, cancel any Product listed
on an Ordering Supplement provided ECS receives, at its Corporate Office
in Eagle, CO, at least thirty (30) days before the scheduled shipment
date, written confirmation of any cancellation. In the event Customer
cancels (or reschedules and subsequently cancels) any unshipped Products
less than thirty (30) days prior to the original scheduled shipment date,
Customer agrees to pay as liquidated damages a charge equal to 5% of the
purchase price or license fee for each cancelled Product.
f. Security Interest: Customer hereby grants to ECS a security interest
in the Products to secure full payment therefor. Customer agrees, upon
request of ECS, to execute and deliver to ECS a financing statement and /or
other documents evidencing such security interest in a form satisfactory
for filing with the appropriate government authorities.
g. Patent Indemnity: The Customer will hold ECS harmless against any
expense, judgment or loss for infringement of any patents, copyright or
trademarks which result from ECS's compliance with Customer's designs, .
specifications or instructions. No costs or expenses will be incurred for
the account of ECS without the prior written consent of ECS.
h. Confidential Information: Customer agrees to maintain in confidence
and not to disclose, reproduce or copy any materials, documentation or
specifications which are marked confidential or proprietary and are
provided to Customer hereunder.
Eagle Computer Systems, Inc.
Page 5
i. Support Services: Customer may be entitled to various support
services for Products provided hereunder. Such services include
assistance in implementation planning, systems analysis and design,
installation, evaluation and training in accordance with the then current
ECS policy.
j. Termination: ECS shall have the right to terminate this Agreement in
the event the occurrence of any one of the following is not remedied
within thirty (30) days of receipt of written notice thereof:
i. Customer has not made financial arrangements satisfactory to ECS
for the purchase of the Products or Services, or
ii. Customer neglects or fails to perform or observe any of its
existing or future obligations hereunder, including without limiting the
generality thereof, the timely payment of any sums due ECS, or
iii. if any assignment is made of Customer's business for the benefit
of creditors, or if a petition in bankruptcy is filed by or against
Customer, or if a receiver, trustee in bankruptcy or similar officer is
appointed to take charge of all or part of its property or if Customer is
adjudicated a bankrupt.
k. Limitation of Remedies:
i. THE SOLE REMEDIES FOR BREACH OF ANY AND ALL WARRANTIES AND THE
SOLE REMEDIES FOR ECS'S LIABILITY OF ANY KIND WITH RESPECT TO THE PRODUCTS
OR SERVICE PROVIDED HEREUNDER AND ANY OTHER PERFORMANCE BY ECS UNDER OR
PURSUANT TO THIS AGREEMENT SHALL BE LIMITED TO THE REMEDIES PROVIDED IN
THE APPLICABLE WARRANTY PARAGRAPHS HEREOF. IN NO EVENT SHALL ECS'S
LIABILITY TO THE CUSTOMER FOR DAMAGES OF ANY NATURE EXCEED THE TOTAL
CHARGES PAID OR PAYABLE FOR SERVICES DURING ONE (1) YEAR UNDER THIS
AGREEMENT IF THE LIABILITY ARISES FROM SERVICE, OR THE PURCHASE PRICE OF
THE PRODUCT(S) IF THE LIABILITY RESULTS THEREFROM.
ii. THE CUSTOMER AGREES THAT ECS SHALL NOT BE LIABLE FOR ANY
SPECIAL, INCIDENTAL, INDIRECT OR CONSEQUENTIAL DAMAGES OR FOR THE LOSS OF
PROFIT, REVENUE OR DATA EVEN IF ECS SHALL HAVE BEEN ADVISED OF THE
POSSIBILITY OF SUCH POTENTIAL LOSS OR DAMAGE.
iii. The Customer agrees that ECS will not have any responsibility
for any hardware, software or other items, or any services provided by any
persons other than ECS.
iv. No action arising out of the sale of Products or the licensing
Of Software or the performance of Service under this Agreement may be
brought by either party more than two years after the cause of action
arises, except that an action for non - payment may be brought within two
years of the date of the last payment made hereunder.
1: Notices: Unless otherwise provided in this Agreement, any notice
required or permitted hereunder to the parties hereto will be deemed to
have been duly given if in writing and delivered personally or mailed by
first class, registered or certified mail, postage prepaid, and if
Eagle Computer Systems, Inc.
Page 6
intended to be given to Customer addressed to Customer at the address set
forth herein, and if intended to be given to ECS, addressed to Eagle
Computer Systems at 232 Broadway, P.O. Box 1020, Eagle, CO 81631,
Attention: David L. Kunkel.
M. Miscellaneous:
i. This Agreement is not assignable by Customer without the prior
written consent of ECS. Any such attempted assignment shall be void.
ii. This Agreement can only be modified by a written agreement duly
signed by persons authorized to sign agreements on behalf of the Customer
and of ECS. The parties hereto agree that the terms, conditions and
prices contained herein will prevail notwithstanding any variations or
additional terms on any orders or other notification submitted by
Customer.
iii. No failure to exercise, and no delay in exercising, on the part
of either party, any right, power, or privilege hereunder will operate as
a waiver thereof, nor will any single or partial exercise of any right,
power or privilege hereunder preclude further exercise of the same right
or the exercise of any other right hereunder.
iv. If any part of this Agreement shall be adjudged by any court of
competent jurisdiction to be invalid, such judgment will not affect or
nullify the remainder of this Agreement but the effect thereof will be
confined to the part immediately involved in the controversy adjudged.
V. This Agreement shall be deemed to have been made in, and shall
be construed pursuant to the laws of, the State of Colorado.
vi. CUSTOMER ACKNOWLEDGES THAT HE HAS READ THIS AGREEMENT AND
UNDERSTANDS AND AGREES TO BE BOUND BY ITS TERMS, CONDITIONS AND PRICES.
CUSTOMER FURTHER AGREES THAT THIS AGREEMENT IS THE COMPLETE AND EXCLUSIVE
STATEMENT OF THE MUTUAL UNDERSTANDING OF THE PARTIES AND THAT THIS
AGREEMENT SUPERSEDES AND CANCELS ALL PREVIOUS WRITTEN AND ORAL AGREEMENTS
AND COMMUNICATIONS RELATING TO THE SUBJECT MATTER OF THIS AGREEMENT.
IN WITNESS WHEREOF, the undersigned have set their hands and seals the
dates set forth below their respective signatures.
Eagle County
Customer Contact:
y-; 7z e, -, /d
Customer Address:
ECS:
By
David L. Kunkel
President
Date: '�Z1�. (') lee
ECS Contact: Amy Woodworth
Eagle Computer Systems, Inc.
Page 7
I
Exhibit A
to
Agreement for Purchase of
Computer Products and Services
Hardware Configuration
for
Eagle County Government
Quantity Description Cost
1 NCR 916 w /115MB hard disk drive, 5 -1/4" $ 6,516.80
diskette drive, additional 2MB RAM (total
of 4MB RAM) and Ethernet Card
6 NCR 3390 workstation with 604K RAM, 3 -1/2" 9,649.20
diskette drive and Ethernet card
7 Advanced keyboard 924.00
7 Monochrome monitor 819.00
1 9 -track tape drive 4,995.00
1 Novell Netware Non - dedicated 2.Oa 2,195.00
1 8 -user Niakwa 1,695.00
1 Printer Cable 25.00
Supplies 60.00
1 File Server installation 500.00
6 Workstation installation 600.00
Cabling
400.00
Appraisal Software upgrade fee 3,000.00
Caylx Enhancement and SPEED upgrade 2,700.00
File Transfer from Wang to Network 680.00
1 Battery Backup Power Supply
995.00
Maintenance (Optional) :
1 Monthly on -site Hardware Maintenance $358.00
for above system per month
There is no maintenance charge during the hardware warranty period.
Exhibit B
to
Agreement for Purchase of
Computer Products and Services
Hardware Payment Schedule
for
Eagle County Government
Percentage Due Amount Due
Deposit with Contract 30% $10,726.20
Due upon Delivery 60x 21,452.40
Due 30 days after installation 10% 3.575.40
Total Amount of Contract $35,754.00
x
Exhibit C
to
Agreement for Purchase of
Computer Products and Services
Maintenance
for
Eagle County Government
(Maintenance Only)
Quantity Description Annual Fee
See Exhibit A
All hardware included
Commencement date of service is 90 days from install.
$4,296.00
