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HomeMy WebLinkAboutC13-202 Daktronics - scoreboard for fair and rodeoAGREEMENT BETWEEN EAGLE COUNTY AND DAKTRONICS, INC THIS AGREEMENT is made thisr77 L-ay 0l 4'L , 2013, by and between Eagle County ("County"), and, Daktronics, Inc. ("Contractor"), a Colorado corporation with a principal place of business at 1675 Broadway, Suite 1200, Denver, Colorado 80202. WHEREAS, County desires to enter into an agreement for servicing of the score board display and associated equipment at the grandstands located at the Eagle County Fairgrounds (the "Facility"). WHEREAS, Contractor is authorized to do business in the State of Colorado, has experience and expertise necessary to provide said product and/or services to County; and WHEREAS, County and Contractor intend by this Agreement to set forth the scope of the responsibilities of Contractor in connection with the services and related terms and conditions to govern the relationship between Contractor and County in connection with this Agreement. NOW, THEREFORE, in consideration of the foregoing premises and the following promises, County and Contractor agree as follows: ARTICLE 1— WORK 1.1 Contractor agrees to provide all services, labor, personnel and materials to perform and complete the services set forth in Exhibit A (hereinafter "Services" or "Work") which is attached hereto and incorporated by this reference. Contractor will use its expertise, skill to perform the Services. In the event of any conflict between the contents of this Agreement and Exhibit A, this Agreement shall control. ARTICLE 2 — COUNTY'S REPRESENTATIVE 2.1 The Facilities Management Department designee, shall be Contractor's contact with respect to this Agreement and the performance of the Services. ARTICLE 3 — TERM OF AGREEMENT 3.1 This Agreement shall commence upon execution of this Agreement by both parties, and, subject to the provisions of Article 11 hereof, shall continue in full force and effect until the Services are satisfactorily completed in accordance with the terms of this Agreement. 3.2 The term of this Agreement may be extended for up to three additional one year terms upon written agreement of the parties. Further, the Agreement may be modified and, the scope of Services may be changed upon a written amendment to this Agreement signed by both parties. ARTICLE 4 — COMPENSATION 4.1 For the Services to be provided hereunder, County will pay Contractor the amounts provided in Exhibit "A." The maximum amount of compensation under this Agreement shall not exceed one thousand three hundred twenty five and no/100 dollars ($1,325.00) without a signed amendment to the Agreement. 4.2 Payment will be made for Services satisfactorily performed within thirty (30) days of receipt of a proper and accurate invoice from Contractor respecting the Services. The invoice shall include a description of services performed. Upon request, Contractor shall provide County with such other supporting information as County may request. C / 3 -c-�OA 4.3 County will not withhold any taxes from monies paid to the Contractor hereunder and Contractor agrees to be solely responsible for the accurate reporting and payment of any taxes related to payments made pursuant to the terms of this Agreement. 4.4 Notwithstanding anything to the contrary contained in this Agreement, no charges shall be made to the County nor shall any payment be made to the Contractor in excess of the amount for any Services done without the written approval in accordance with a budget adopted by the Board in accordance with provisions : of the Colorado Revised Statutes. Moreover, the parties agree that the County is a governmental entity and that all obligations beyond the current fiscal year are subject to funds being budgeted and appropriated. 4.5 The signatories to this Agreement aver to their knowledge, no employee of the County has any personal or beneficial interest whatsoever in the service or property described in this Agreement. The Contractor has no interest and shall not acquire any interest, direct or indirect, that would conflict in any matter or degree with the performance of Contractor's services and Contractor shall not employ any person having such known interests. ARTICLE 5— CONTRACTOR'S REPRESENTATIONS In order to induce County to enter into this Agreement, Contractor makes the following representations: 5.1 Contractor has familiarized itself with the nature and extent of the Services to be provided hereunder, the Facility, and with all local conditions, and federal, state, and local laws, ordinances, rules and regulations that in any manner affect cost, progress, or performance of the Services. 5.2 Contractor will make, or cause to be made, examinations, investigations, and tests as he deems necessary for the performance of the Services. 5.4 To the extent possible, Contractor has correlated the results of all such observations, examinations, investigations, tests, reports, and data with the terms and conditions of this Agreement. 5.5 To the extent possible Contractor, has given County written notice of all conflicts, errors, or discrepancies that he has discovered in the Agreement. 5.6 Contractor will be responsible for provision of the Services and shall perform the Services in a skillful, professional and competent manner and in accordance with the standard of care, skill and diligence applicable to score board service and maintenance. Further, in rendering the Services, Contractor shall comply with the highest standards of customer service to the public. Contractor shall provide appropriate supervision of its employees to ensure the Services are performed in accordance with this Agreement. ARTICLE 6 — ENTIRE AGREEMENT 6.1 This Agreement represents the entire Agreement between the parties hereto. There are no Contract Documents other than this Agreement, Exhibit A and B. The Agreement may only be altered, amended, or repealed in writing. ARTICLE 7 — MISCELLANEOUS 7.1 No assignment by a party hereto of any rights under, or interests in the Agreement will be binding on another party hereto without the written consent of the party sought to be bound; and specifically, but without limitation, moneys that may become due and moneys that are due may not be assigned without such consent (except to the extent that the effect of this restriction may be limited by law), and unless specifically stated to 2 the contrary in any written consent to an assignment, no assignment will release or discharge the assignor from any duty or responsibility under the Agreement. 7.2 County and Contractor each binds itself, its partners, successors, assigns and legal representatives to the other party hereto, in respect to all covenants, agreements, and obligations contained in this Agreement. 7.3 Notwithstanding anything to the contrary contained in this Agreement, County shall have no obligations under this Agreement after, nor shall any payments be made to Contractor in respect of any period after December 31 without an appropriation therefore by County in accordance with a budget adopted by the Board of County Commissioners in compliance with Article 25, Title 30 of the Colorado Revised Statutes, the Local Government Budget Law (C.R.S. § 29-1-101 et seq.) and the TABOR Amendment (Colorado Constitution, Article X, Sec. 20). 7.4 Provision Mandated by C.R.S. § 8-17.5-101 et seq. PROHIBITIONS ON PUBLIC CONTRACT FOR SERVICES 7.4.1 If Contractor has any employees or subcontractors, Contractor shall comply with C.R.S. § 8-17.5-101, et seq., regarding Illegal Aliens — Public Contracts for Services, and this Contract. By execution of this Contract, Contractor certifies that it does not knowingly employ or contract with an illegal alien who will perform under this Contract and that Contractor will participate in the E -verify Program or other Department of Labor and Employment program ("Department Program") in order to confirm the eligibility of all employees who are newly hired for employment to perform Services under this Contract. 7.4.2 Contractor shall not: (i) Knowingly employ or contract with an illegal alien to perform work under this contract for services; or (ii) Enter into a contract with a subcontractor that fails to certify to the Contractor that the subcontractor shall not knowingly employ or contract with an illegalalien to perform work under the public contract for services. 7.4.3 Contractor has confirmed the employment eligibility of all employees who are newly hired for employment to perform work under this Contract through participation in the E -verify Program or Department Program, as administered by the United States Department of Homeland Security. Information on applying for the E -verify program can be found at: hgp://www.dhs.ggy/xprevpLqtlprogams/gc 1185221678150.shtm 7.4.4 The Contractor shall not use either the E -verify program or other Department Program procedures to undertake pre-employment screening of job applicants while the public contract for services is being performed. 7.4.5 If the Contractor obtains actual knowledge that a subcontractor performing work under the public contract for services knowingly employs or contracts with an illegal alien, the Contractor shall be required to: (i) Notify the subcontractor and the County within three days that the Contractor has actual knowledge that the subcontractor is employing or contracting with an illegal alien; and (ii) Terminate the subcontract with the subcontractor if within three days of receiving the notice required pursuant to subparagraph (i) of the paragraph (D) the subcontractor does not stop employing or contracting with the illegal alien; except that the Contractor shall not terminate the contract with the subcontractor if during such three days the subcontractor provides information 3 to establish that the subcontractor has not knowingly employed or contracted with an illegal alien. 7.4.6 The Contractor shall comply with any reasonable request by the. Department of Labor and Employment made in the course of an investigation that the department is undertaking pursuant to its authority established in C.R.S. § 8-17.5-102(5). 7.4.7 If a Contractor violates these prohibitions, the County may terminate the contract for a breach of the contract. If the contract is so terminated specifically for a breach of this provision of this Contract, the Contractor shall be liable for actual and consequential damages to the County as required by law. 7.4.8 The County will notify the office of the Colorado Secretary of State if Contractor violates this provision of this Contract and the County terminates the Contract for such breach. 7.5 The Contractor, if a natural person eighteen (18) years of age or older, hereby swears and affirms under penalty of perjury that he or she (a) is a citizen or otherwise lawfully present in the United States pursuant to federal law, (b) to the extent applicable shall comply with the provisions of C.R.S. 24-76.5-101 et. seq., and (c) has produced one form of identification required by C.R.S. 24-76.5-103 prior to the effective date of this Agreement. 7.5 Invalidity or unenforceability of any provision of this Agreement shall not affect the other provisions hereof, and this Agreement shall be construed as if such invalid or unenforceable provision was omitted. 7.6 Contractor acknowledges that County has entered into this Agreement in reliance upon the particular reputation and expertise of Contractor. Contractor shall not enter into any sub -consultant or sub -contractor agreements for the performance of any of the Services or without County's prior written consent, which may be withheld in County's sole discretion. County shall have the right in its reasonable discretion to approve all personnel assigned to perform the Work and no personnel to whom County has an objection, in its reasonable discretion, shall be assigned. Contractor shall be solely responsible for any Work performed by a sub -consultant or sub -contractor and shall require each sub -consultant or sub -contractor, as approved by County and to the extent of the Services to be performed by the sub -consultant or sub -contractor, to be bound to Contractor by the terms of this Agreement, and to assume toward Contractor all the obligations and responsibilities which Contractor, by this Agreement, assumes toward County. ARTICLE 8 - JURISDICTION AND VENUE: 8.1 This Agreement shall be interpreted in accordance with the laws of the State of Colorado and the parties hereby agree to submit to the jurisdiction of the courts thereof. Venue shall be in the Fifth Judicial District for the State of Colorado. 8.2 In the event of litigation between the parties hereto regarding the interpretation of this Agreement, or the obligations, duties or rights of the parties hereunder, or if suit otherwise is brought to recover damages for breach of this Agreement, or an action be brought for injunction or specific performance, then and in such events, the prevailing party shall recover all reasonable costs incurred with regard to such litigation, including reasonable attorney's fees. ARTICLE 9 - INDEMNIFICATION: 9.1 The Contractor shall indemnify and hold harmless County and any of its officers, agents and employees against any losses, claims, damages or liabilities for which County or any of its officers, agents, or employees may become subject to, insofar as any such losses, claims, damages or liabilities arise out of, directly or 4 indirectly, this Agreement, or are based upon any performance or nonperformance by Contractor or any of its subcontractors hereunder; and Contractor shall reimburse County for any and all attorney fees and costs, legal and other expenses incurred by County in connection with investigating or defending any such loss, claim, damage, liability or action. This indemnification shall not apply to claims by third parties against the County to the extent that the County is solely liable to such third party for such claims without regard to the involvement of the Contractor. ARTICLE 10 - OWNERSHIP OF DOCUMENTS AND MATERLkLS: 10.1 All documents (including electronic files) and materials which are obtained during, purchased or prepared in the performance of the Services shall remain the property of the County and are to be delivered to County before final payment is made to Contractor or upon earlier termination of this Agreement. ARTICLE 11 -TERMINATION: 11.1 County may terminate this Agreement, in whole or in part, for any reason, at any time, with or without cause. Any such termination shall be effected by delivery to Contractor of a written notice of termination specifying the date upon which termination becomes effective. In such event, Contractor shall be compensated for all Services satisfactorily completed up to the date of termination for such Services. ARTICLE 12 —NOTICE 12.1 Any notice required under this Agreement shall be personally delivered, mailed in the United States mail, first class postage prepaid, or sent via facsimile provided an original is also promptly delivered to the appropriate party at the following addresses: The County: Eagle County Facilities Management P.O. Box 850 Eagle, Colorado 81631 (970) 328-8786 (p) (970) 328-8899 (f) and a copy to: Eagle County Attorney P.O. Box 850 Eagle, Colorado 81631 (970)328-8685 (p) (970) 328-8699 (f) The Contractor: Daktronics, Inc. 1675 Broadway, Suite 1200 Denver, Colorado 80202 (800) 325-8766 (p) 12.2 Notices shall be deemed given on the date of delivery; on the date a FAX is transmitted and confirmed received or, if transmitted after normal business hours, on the next business day after transmission, provided that a paper copy is mailed the same date; or three days after the date of deposit, first class postage prepaid, in an official depositary of the U.S. Postal Service. ARTICLE 13 — INDEPENDENT CONTRACTOR 13.1 It is expressly acknowledged and understood by the parties hereto that .nothing contained in this Agreement shall result in, or be construed as establishing, an employment relationship between County and Contractor or County and Contractor's employees. Contractor and its employees shall be, and shall perform as, independent contractors. No officer, agent, subcontractor, employee, or servant of Contractor shall be, or shall be deemed to be, the employee, agent or servant of County. Contractor shall be solely and entirely responsible for the means and methods to carry out the Services under this Agreement and for Contractor's acts and for the acts of its officers, agents, employees, and servants during the performance of this Agreement. Neither Contractor nor its officers, agents, subcontractors, employees or servants may represent, act, purport to act or be deemed the agent, representative, employee or servant of County. ARTICLE 14 — INSURANCE REQUIREMENTS 14.1 At all times during the term of this Agreement, Contractor shall maintain insurance on its own behalf in the following minimum amounts: 14.1.1 Workmen's Compensation, disability benefits, and other similar employee benefit acts, with coverage and in amounts as required by the laws of the State of Colorado. 14.1.2 Comprehensive Automobile Insurance shall be carried in the amount of $1,000,000 for bodily injury and $1,000,000 for property damage, each occurrence. All liability and property damage insurance required hereunder shall be Comprehensive General and Automobile Bodily Injury and Property Damage form of policy. 14.1.3 Comprehensive liability and property damage insurance issued to and covering Contractor and any subcontractor with respect to all Work performed under this Agreement and shall also name County as an additional insured, in the following minimum amounts: Bodily Injury Liability: Each Person: $1,000,000 Each Accident or Occurrence: $1,000,000 Property Damage Liability: Each Accident or Occurrence: $1,000,000 14.2 Contractor shall purchase and maintain such insurance as required above and the certificate of insurance is attached hereto as Exhibit B. //SIGNATURE PAGE TO FOLLOW// G IN WITNESS WHEREOF, the parties hereto have executed this Agreement the day and year first above written. COUNTY OF EAGLE, STATE OF COLORADO, by its County Manager By: Keith Montag CONTRACTOR: DAKTRO CS, INC 1 By: Saran Rase Title: Live Everts Service Manager CONTRACTOR IS REQUIRED TO HAVE ITS SIGNATURE NOTARIZED STATE OF ) ss. COUNTY OFc5a The foregoing instrument was acknowledged before me by 'S retiVN �+ as , of �K t rcrn cS this i day of , 2013. My commission expires: ' o Notary Public 7 „ Y DAKTRONICS, INC. ('Daktronics') ForintemOl Use &W, 201 Daktroriics Drive Bill to Loc M. (( Z, BROOK NGS, Phone: 800- 2 -876 6 Bill to Contact: P 1 UV -,,4,,! _" : Phone: 800-325-8766 Daktronics Contact: Teresa Brown Check #: Purchaser: Eagle County Address: PO Box 250 590 Broadway City, State, Zip: Eagle, CO 81631-0250 Customer ID: 135043 Lot: 003 Country_- United States Pipeline No.: 466421 Phone: P,70-328-3646 Fax: 970-328-7720 Contact:'Fair and Rodeo Email: fair@eaglecounty.us -Eagle County ('Purchaser') hereby agrees::to purchase the services, peripherals and additional supplies (collectively, the "Services"), subject to this Extended Service Agreement, the Terms and Conditions of Extended Service, -and any and all applicable Attachments (collectively, the "Agreement" or the "Contract Documents"), which documents Purchaser has reviewed and agrees to accept. Term (Duration) of the Agreement: Commencement Dater, 1 March 2013 Expiration Date: 28 February 2014 Order No.: E96523 Original Job No.: C9652 Description of Services Provided: price: See Attachment A Essential Services' See Attachment B Equipment List See Attachment A. " Exceptions: Identification/advertising"panels are excluded. Proposal Date; 2� January 2013 Order No. E9652-3 CopyrightC Daktronics, Inc. DF -2900 ReOO91912 a; Page 1 of 8 . . All notices requited herein shall be given to Purchaser at. the address indicated above on this Agreement u :�l�■o otherwise specified below: Notice / Communication Address: Address: City, State, Zip: Country: Phone: Cell: Fax: Attention.- Email: ttention:Email: All invoices will be forwarded to Purchaser at the address Purchaser hereby confirms that the Services are :?.t= Indicated on page one 1 of this p g O Agreement unless delivered at the add "cess indicated on page one (1) oNK--- otherwise specified'below:Agreement unless otherwise specked belovr Billing Address: Site Address: Company: Company: Address: Address: `City, State, Zip: City, State, Zip:_ Country: Country: Phone• Fax:' Phone- ___Fax: Contact: Contact: E -Mail: Email: ACCEPTANCE: In witness hereof, the parties hereto have executed this agreement by and through their duly authorized -officers. PURCHASER: Eagle County By. Nametritle• / Date: Signature Print or Type DAKTR ICS, INC. 1 Sarah dace a;f ay. �rC�IIJ Name/Title: Lime F ventsService�Mi Date: ` Signature Print orType s This form is an important part of your coverage. Please sign and return the entirejagreement to Daktronics, Inc. once the sign agreement Is entered Into our system, you will receive a copy for your records. Mer expires 60 days from proposal date. Proposal Date: 2VAan.ry2013 Order No. M652-3 �opoght 0 Daktrdn� Inc DF -294o Revo91912 Page2ofg , ATTACHMENT A Equipment List Equipment qty. AF -0110-48x128 Outdoor Galaxy Display 1 Remote Start/StoolReset 1 All Sport 5100 Control Console 1 Venus 7000 Controller -Replaced in 2010 1 R-' The equipment underlined in this contract will be covered under this agreement E9652-3 for one (1) year from the current commencement date of 1 March 2013, afterwhich, the underlined equipment will be serviceable, if possible, on a time and materials basis outside of this agreement. The equipment listed below is NOT covered under this service agreement because it either no longer exists or Is not eligible for coverage under a service agreement. BB -2041 Basketball Display w/TNMC (line 0059) 1 BB -21113 -sided Shot,Giock (line 0060) i Venus 7000 Controller (line 0032)' 1 4 r Proposalibate. 211enuery 2013 Order No. B652-3 .Copyright 0 Daktronka, Inc. DF -2940 RevD91912 Page 3 of 8 Essential'5ervice Portfolio Scope of Services 1. Daktronics Parts Coverage which includes: 1.1. Daktronics Standard Parts Processing: includes replacement parts, repair and_return parts and exchange parts. ` • See Estimated Processing Times for Service Parts (DDi#1428254) for -estimated lead and delivery times. 2. Technical Phone Support: 2.1. General phone support hours 24/7/365. 2.2. Remote assisted technical support.' 3. Account Services: Access to Dakfronics Service Coordination 24/7/365. 4. Access to On -Site Field Services Response: 4.1. On-site response between 48-72 hours of notification. 4.2. On-site service is available as a billable service call only, at Daktronics' hourly service rate in effect at the time of service. Fssentfal Service Portfolio shall not include nor be construed to include any service or support that is not expressly stated above in the definition of the Essential Service Portfolio. Examples of services that are not within the scope of standard service include, but are not limited to, the following: 1. On-site labor to diagnose and/or replace failed electronic components. 2. Remote monitoring services. 3. Expedited shipping. 4. Camera calibration. S. Display washing. 6. Annual display and control system checks. Above -listed exclusions are available as billable services. Quotes may be provided upon request. Purchaser Responsibilities The items listed below are the responsibility of the Purchaser. 1. Purchaser is responsible for routine operator functions such As content creation or management and all configuration, set-up and operation for events/usage. 2. Purchaser I& responsible for providing lift access to the display. 3. Purchaser is responsible for providing a secure Internet connection. 4. Purchaser is responsible for the maintenance items listed below;failure to properly maln%in equipment may;at Daktronics' sole discretion, relieve Daktronics of its responsibilities under the Terms and Conditions of Extended - Service attached hereto. 4.1. Throughout the term of this agreement, Purchaser'shall maintain site conditions within the common environmental range of all system devices as specified by Daktronics. 4.2. Purchaser is resPonsible`for routine, preventative maintenance functions; examples include the external cooling systems (filters, fans, air conditioning) for displays and control systems, and clean-up/maintenance of the controttystems computer hard drives. Preventative maintenance is required to.prevent dirt/dust. and heat buildup as welhas maintain peak performance. 'Available with Internet connection. Proposal Date: 21January 2013 Order No. B652-3 Copyright 0 Daktronic; Inc DF,2940 Rev091912 Page 4 of 9 ATTACHMENT B Unless otherwise agreed below, payment for the Service Agreement must be paid in lull before the commencement date. Essential: $1,325 Proposal Date: 21 January 2013 Order No. E9652-3 Copyright © Daktronics, Inc. DF -2940 Rev091912 Page 6 of 8 Terms and Conditions of Extended Service 1. Scope of Extended Service Agreement. The scope of the Extended Service Agreement covers the Equipment and includes those services defined on Attachment A (excluding maintenance services which are the responsibility of Purchaser as defined on Attachment A or services which may be purchased for an additional fee) (the 'Services'). Response Times are defined on Attachment A. 2. Contract Documents. The parties agree that any subsequently -issued Purchaser form, such as a purchase order, shall incorporate the terms and conditions of this Agreement. 3. Commencement Date. The Services shall begin upon the date stated as the 'Commencement Date' on the cover page of this Agreement. 4. Conditions Precedent. Daktronics reserves the right to suspend its performance in the event Purchaser fails to: (a) make payment as required, 5. Payment. Purchaser agrees to pay Daktronics according to the Payment Schedule. Unless otherwise stated, the price is exclusive of federal, state and local taxes, including without limitation sales, use, excise, privilege, or transactional taxes, but excluding Daktronics' income tax ('Tax'). Purchaser shall promptly pay upon demand such applicable Tax. Purchaser must present a valid exemption certificate if it claims any exemption from Tax. 6. Spare Parts Package. In the event the Equipment was purchased with a spare parts package, the parties acknowledge and agree that the spare parts package is designed to exhaust over the life of the Equipment and, as such, the replenishment of the package is not included in the scope of this Extended Services Agreement. 7. Limitations of Coverage. This Agreement does not cover (a) service due to: (i) inadequate or improper power, (ii) improper care, maintenance, storage or use of the Equipment, (iii) a Force Majeure Event, (iv) environmental conditions outside the Equipment's technical specifications (including, without limitation excessive temperatures, corrosives, and metallic pollutants), or (v) incorporation of accessories, attachments, or other devices not furnished by Daktronics; (b) the provision of replacement communication methods (such as wire, fiber optic cable, conduit, trenching or other solutions) for the purpose of overcoming local site interference; (c) LED degradation occurring within Daktronics technical specifications (degradation means the LED continues to emit light, but at some lesser level of brightness); (d) paint or refinishing the Equipment or furnishing material for this purpose; (e) pixel failure less than a total of .5% of the overall display, or in the case of free form elements, one entire element; (f) electrical work external to the Equipment; (g) batteries; or (h) metallic or fiber optic data cable. 8. Actions that Void the Service Agreement. Daktronics shall be under no obligation to continue service under this Agreement if the Equipment is: (a) moved from its location of initial installation or reinstalled without the prior written approval of Daktro nics (unless the equipment was designed by Daktronics to be mobile), or (b) improperly repaired or altered in a manner inconsistent with the Equipment manufacturer's standards or recommendations. 9. Service Providers. Daktronics may select the parties delivering services under this Agreement at its reasonable discretion. 10. Access to the Equipment. The Purchaser shall provide unfettered, solid, safe and unrestricted access to the Equipment, taking into account environmental or site conditions. Unless otherwise specified on Attachment A, the Purchaser shall be required to provide any lifts or access equipment. Additional equipment or personnel required for safety, as determined by Daktronics in its reasonable discretion, shall be billed separately on a time and material basis. 11. Adverse Conditions. In no event shall Daktronics be obliged to perform Services under this Agreement during the existence of Adverse Conditions. 'Adverse Conditions' include without limitation, the following: severe inclement weather, hazardous site conditions including infestations of animals or dangerous insects, saturated ground conditions, The determination of a site condition as an Adverse Condition shall be at the reasonable discretion of Daktronics. Inaccessibility due to Adverse Conditions will exempt a location from coverage under this Agreement until such time as the Equipment becomes safely accessible once again. 12. Cooperation. Purchaser shall fully cooperate with Daktronics in connection with the service of the Equipment. The Purchaser shall promptly notify Daktronics of Equipment failure. Waiver of liability or other restrictions shall not be imposed as a requirement prior to accessing the site. 13. Return Items. All items returned to Daktronics must have a Return Material Authorization (RMA) number. For exchange items, the number is included with the shipment of the exchange unit. For repair items, an RMA number can be obtained by phone (800-325- 8766), (International +1-605-697-4000), fax (605-697-4444) unless otherwise directed by Daktronics. Proposal Date: 21 January 2013 Order No. E9652-3 Copyright © Daktronics, Inc. DF -2940 Rev091912 Page 7 of 8 14. Shipping. When returning parts to Daktronics for repair or replacement, Purchaser assumes all risk of loss or damage, agrees to use any shipping containers, which might be provided by Daktronics, and agrees to ship the Equipment in the manner prescribed by Daktronics. Daktronics assumes all risk of loss or damage during return shipment to Purchaser. 15. Confidentiality. To the extent permitted by law, Purchaser shall consider all information furnished by Daktronics, including the terms and conditions of this Agreement, to be confidential and shall not disclose any such information to any other person, or use such information itself for any purpose other than fulfillment of this Agreement unless Purchaser first obtains written permission from Daktronics to do so. Purchaser shall provide confidential information only to those of its agents, servants and employees who have been informed of the requirements of this paragraph and have agreed to be bound by them. The provisions of this paragraph shall survive termination of the Agreement. 16. Default. Daktronics reserves the right to terminate this agreement and accelerate all amounts due and payable if: (a) Purchaser fails to make payment to Daktronics within ten days of the agreed payment dates, (b) Purchaser otherwise fails to comply with any material provision of this Agreement, or (c) any proceeding is filed by or against Purchaser in bankruptcy. Daktronics reserves all its rights (both legal and equitable) under the agreement, applicable statutes, and the common law. 17. Indemnity. Daktronics shall indemnify, defend and hold harmless the Purchaser and their respective subsidiaries, officers, directors, shareholders, partners, employees, agents, insurers, successors and assigns from any third -party claims for liability, losses, damages, costs or expenses (collectively, 'Losses') arising out of: (i) any material breach of this Agreement by Daktronics; (ii) any negligent act or omission by Daktronics or its personnel, agents, subcontractors, or others engaged by Daktronics or under Da ktronics' control related to the execution of this Agreement; (iii) any claim against any indemnified party by reason of or alleging any, unauthorized or infringing use by an indemnified party of any patent, process, trade secret, copyright, trademark, or other intellectual property right regarding the Equipment or the Software and its components; or, (iv) any fine or assessment with respect to any violation or alleged violation of any Applicable Laws regarding safety or health. 18. Limitation of Liability. The parties agree that in no event whatsoever shall the liability of either party exceed the amount of the purchase price. It is agreed that in no event shall either party be liable for special, incidental, consequential or indirect damages, regardless of cause. Purchaser understands and agrees that the prices granted herein would be higher in the absence of this limitation of liability. Daktronics shall have no liability with respect to claims relating to or arising from Purchaser's use of third -party products and services. 19. Force Majeure. Both parties shall be excused from any liability under this Agreement for any delay in performance or failure to perform which delay or failure to perform is caused by circumstances which are beyond the reasonable control of that party, including without limitation acts of God, natural disaster, fire, flood, labor or material shortages, war, vermin, earthquakes, tsunami, acts of terrorism, etc. (a 'Force Majeure Event'). 20. Assignment. Unless otherwise stated, this Agreement may not be assigned by either party without the prior written consent of the other party. 21. Miscellaneous. This Agreement shall be governed by the laws of the state where the Services are provided without regard to its conflict of law principles. This Agreement is the product of negotiations between the parties hereto represented by counsel and any rules of construction relating to interpretation against the drafter of an agreement shall not apply to this Agreement and are expressly waived. This Agreement represents the entire agreement of the parties and supersedes any previous understanding or agreement. This Agreement may not be amended or altered in any manner except in a writing signed by both parties. This Agreement may be executed in counterparts. The Purchaser and Daktronics are not partners or joint venturers. If any part of this Agreement is in any manner held to be invalid, illegal, void, or to be in conflict with any law, then the validity of the remaining portions or provisions of this Agreement shall not be affected, and such part, term, paragraph or provision shall be construed and enforced in a manner designed to effectuate the intent expressed in this Agreement to the maximum extent permitted by law. Proposal Date: 21 January 2013 Order No. E9652-3 Copyright® Daktronics, Inc. DF -2940 Rev091912 Page 8 of 8