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10/20/1993 Agreement Agreement Number IE MC THE STORAGE ARCHITECTS AGREEMENT FOR PURCHASE Tel. No. (508) 435 -1000 between FAX No. (508) 435 -6116 EMC Corporation 171 South Street Hopkinton, MA 01748 -9103 AND Monroe County Board of County Commissioners ( Monroe County Info Systems) 5100 West Junior College Road • Key West, FL 33040 Tel. No. (305) 294 -4641 ATTN: Gary Jarstfer ( "Purchaser ") The Purchaser agrees to purchase and EMC Corporation (here- sell the Products listed in Exhibit 1.1 below, on the terms and inafter "EMC "), by its acceptance of this Agreement, agrees to conditions set forth herein. Exhibit 1.1 Model Warranty Item Description Quantity Unit Price Amount (Time) STD851012 Champion 8mm Tape 1 $9,500 $9,500.00 12 Months TOTAL $9,500.00 • A i N(lO J AMNON • 'it ,4i *Contingent Upon Corporate Approval Z£: 1 d 91 AON £6. *Offer valid through August 19, 1993 { �) ;; _ yi j 0] Rev. GA -1092 1 PRICES (b) Purchaser's exclusive remedy for breach of the Equipment Prices and fees are exclusive of all sales, use and like taxes. Any warranty above is that Seller will either (i) repair or replace, at • tax Seller may be required to collect or pay upon the sale, use, its option, any item of Equipment which fails during the war - licensing or delivery of the Products shall be paid by Purchaser ranty period because of a defect in workmanship or material to Seller upon invoice. (provided Purchaser has promptly reported the failure to Seller in writing) or, (ii) if Seller is unable to repair or replace, refund Z. DELIVERY the purchase price of the Equipment upon its return to Seller. Delivery will be f.o.b. Seller's plants and will occur when the Products are ready for pickup by the carrier. In the absence of 6.2. Software Program Warranty specific instructions, Seller will select a carrier and arrange for __ (a) Seller_ warrants that the Software Programs as originally in- transit insurance (which may be less than full value). By delivered and unaltered will conform to Seller's applicable 'spec- selecting a carrier and arranging for insurance on Purchaser's ifications prevailing at the time of order. behalf, Seller does not assume any liability for the shipment and the carrier will not be considered the agent of Seller. All trans- (b) Purchaser's exclusive remedy for breach of the Software portation and insurance charges relating to shipment shall be Program warranty above is that Seller will make a reasonable paid by Purchaser to Seller upon invoice. Delivery of the effort to correct any documented nonconformity reported in Products outside of the Continental United States must be sub- writing to Seller during the ninety (90) day period following ject to a separate addendum to this Purchase Agreement. delivery, in a manner deemed suitable to Seller. Seller does not warrant the results of its correction services or that the functions 3. INSTALLATION contained in the Software Programs will meet Purchaser's Seller will install the Products at no additional charge if the requirements. installation location is within 100 miles of a Seller Service Location. Such initial installation shall be performed only at a 6.3. Limitations location in the contiguous forty -eight (48) United States of (a) The above warranties extend only to Purchaser and are con - America and the District of Columbia provided Purchaser tingent upon proper use of the Products. The warranties will promptly notifies Seller of receipt and permits Seller access to not apply to any failure caused by: the Products and the installation site during the hours of 8:30 (i) accident; unusual physical, electrical or electro-magnetic a.m. to 5:30 p.m., local time, Monday through Friday, and stress; neglect; misuse; failure of electrical power, air condi- excluding Seller holidays. tioning or humidity control; (ii) use of the Products with any equipment or software not All other installations of Products shall be at Seller's then cur- specified in Seller's specifications; rent terms, conditions and charges. However, Seller shall be (iii) installation, alteration or repair of the Products by any - under no obligation to install Products if (a) Purchaser does not one other than Seller; or Sellers Authorized Representative; notify Seller of receipt, or (b) Seller is prevented by causes or beyond its control from installing Products, or (c) the Products (iv) Equipment on which the original identification marks have been modified without Seller's written consent and /or have been removed or altered. subjected to unusual physical or environmental stress, accident, neglect, misuse or other damage not caused by Seller. (b) Except as expressly stated in Sections 6.1. and 6.2. above, there are no warranties, express or implied, by operation of law 4. ACCEPTANC> or otherwise, of any item or service furnished under or in con - Acceptance of Products will occur upon successful completion nection with this Agreement. SELLER DISCLAIMS ALL of Seller's standard acceptance procedures which verify proper IMPLIED WARRANTIES OF MERCHANTABILITY AND FIT - functioning of the Products, as evidenced by a report signed by NESS FOR PARTICULAR PURPOSE. No representation or Seller's representative who performs the installation. If Seller other affirmation of fact, including but not limited to statements cannot install within thirty (30) days after delivery because of regarding capacity, suitability for use or performance of acts of Purchaser, the Products 'affected will be deemed accepted Products, whether made by Seller employees or otherwise, shall at the end of the thirty (30) day period. be deemed to be a warranty by Seller for any purpose or give rise to any liability of Seller whatsoever unless contained in this 5. PAYMENT AND SECURITY INTEREST Agreement. . • Subject to credit approval by Seller, payment terms are net ten (10) days from the date of invoice, and interest will be charged 7. PATENTS AND COPYRIGHTS at the rate of 1.5% per month or the highest lawful rate, If notified promptly in writing of any action (and all prior whichever is less, on all unpaid amounts. If deliveries are related claims) brought against Purchaser alleging that • authorized in installments, each shipment shall be paid for Purchaser's sale, use or other disposition of the Products when due without regard to other scheduled deliveries. Seller infringes a United States patent or copyright, Seller will defend reserves a security interest in the Products as security for pay- that action at its expense and will pay the costs and damages ment of the price for Equipment sold under this Agreement. awarded against Purchaser in the action, provided that Seller Upon request by Seller, Purchaser shall execute any instrument shall have sole control of the defense of any such action and all required to perfect Seller's security interest. negotiations for its settlement or compromise. If a final injunc- tion is obtained in such action against Purchaser's use of the 6. WARRANTY Products or if in Seller's opinion the Products are likely tc . 6.1. Equipment Warranty become the subject of a claim of infringement, Seller will at it (a) Seller warrants the Equipment against defects in material option and expense either procure for Purchaser the right tc continue using the Products, replace or modify the Products s and workmanship for a period as specified in Exhibit 1.1, from that they become non - infringing or grant Purchaser a credit fc date of original installation under normal use and service. 2 - Rev. GA -1092 the infringing Products as depreciated and accept their return. limited to partial or physical copies in any form. Purchaser Depreciation will be in accordance with Generally Accepted shall not reverse assemble or reverse compile the Software Accounting Principals. Programs in whole or in part. 8.2. General Seller shall not have any liability to Purchaser if the alleged (a) Each Software Program and the information it contains, any infringement is based upon (a) use or sale of the Products in updates, and all copies of them are Seller's property, and title to combination with other products or devices which are not made them remains in Seller or Seller's licensor. All applicable rights by Seller, or (b) use of the Products in practicing any process, or in patents, copyrights and trade secrets in the Software (c) the furnishing to Purchaser of any information, service or Programs are and will remain in Seller. No title to, or owner - applications assistance. Purchaser shall defend and hold Seller ship of, the Software Programs or the information they contain harmless against any expense, judgment or loss for alleged is transferred to Purchaser. infringement of any patents, copyrights or trademarks which results from Seller's compliance with Purchaser's designs, speci- (b) Seller shall have the right to terminate any of Purchaser's fications or instructions. No costs or expenses shall be incurred licenses and rights granted in this Section 8. for which Purchaser for the account of Seller without the prior written consent of fails to pay applicable license fees or if Purchaser fails to comply Seller. In no event shall Seller's total liability to Purchaser with the terms and conditions of this Section 8.. Upon notice of under or as a result of compliance with the provisions of this termination, Purchaser agrees to immediately return or destroy Section 7. exceed the sums paid to Seller by Purchaser for the the affected Software Programs and all portions and copies of allegedly infringing Products. THIS SECTION 7. STATES THE them. ENTIRE LIABILITY OF SELLER WITH RESPECT TO ALLEGED INFRINGEMENTS OF PATENTS AND COPY- (c) Purchaser's obligations contained in this Section 8. shall sur- RIGHTS BY THE PRODUCTS OR ANY PART OF THEM OR BY vive any termination of this Agreement. THEIR OPERATION. .. . 9. PRODUCT CHANGES 8. SOFTWARE PROGRAM LICENSE Seller reserves the right, without prior approval from or notice 8.1. Use of Software Programs by Purchaser to Purchaser, to make changes to the Products (a) which do not Seller grants to Purchaser a non-exclusive and non transferable affect physical or functional interchangeability or performance license to use, for its own internal purpose, each Software at a higher level of assembly of Products, or (b) when required Program provided to Purchaser subject to the following license for purposes of safety, or (c) to meet Product specifications. terms and conditions: 10. EXPORT (a) The Software Program, including any subsequent updates Regardless of any disclosure made by Purchaser to Seller of an as provided herein, may be used only on the single identified ultimate destination of the Products, Purchaser will not export, Product on which it is first installed or for which it is otherwise either directly or indirectly, any Product without first obtaining licensed. Purchaser shall pay Seller's prevailing license fee for a license, as required, from the U.S. Department of Commerce each Software Program, if any. or any other agency or department of the United States Government. (b) Purchaser may obtain updates to such Software Program 11. DISCLAIMER AND LIMITATION OF LIABILITY which Seller makes generally available for use only on such sin- gle identified Product, if: IN NO EVENT WILL SELLER BE LIABLE FOR (a) 1NCIDEN (i) Purchaser executes a Seller maintenance agreement coy- TAL, INDIRECT, SPECIAL OR CONSEQUENTIAL DAMAGES Bring such Product and such Software Program at Seller's OR (b) ANY DAMAGES WHATSOEVER RESULTING FROM then current charges; or LOSS OF USE, DATA OR PROFITS, ARISING OUT. OF OR 11\1 (ii) Purchaser obtains a license for each such update for • • CONNECTION WITH THIS AGREEMENT OR THE USE OR each Product from Seller at Seller's then prevailing fee. PERFORMANCE OF SELLER PRODUCTS, WHETHER IN AN ACTION OF CONTRACT OR TORT, INCLUDING BUT NOT (c) Purchaser shall not provide, disclose or otherwise make LIMITED TO NEGLIGENCE. SELLER'S LIABILITY FOR DAM- available Software Programs, in any form, to any person other AGE TO PROPERTY SHALL BE LIMITED TO PHYSICAL than Purchaser's employees without Seller's prior written con- DAMAGE DIRECTLY CAUSED BY THE SOLE NEGLIGENCE sent, except when any such person is on Purchaser's premises OF SELLER AND SHALL IN NO EVENT EXCEED ONE (1) and under Purchaser's direction and control for purposes MILLION U.S. DOLLARS. specifically related to Purchaser's permitted use of the Software Programs. No action, whether in contract or tort including but not limited to negligence, arising out of or in connection with this Purchaser agrees to take appropriate action by instruction, Agreement may be brought by either party more than eighteen agreement or otherwise with Purchaser's employees or other (18) months after the cause of action has accrued, except that an persons allowed access to Software Programs to satisfy its oblig- action for nonpayment may be brought within eighteen (18) ations under this Agreement with respect to use, copying, modi- of the date of the last payment. This Section shall not fication, disclosure, protection and security of Software apply to actions for breaches under Section 8. of this Agreement, Programs. or to actions for violations or infringements of Seller's intellec- tual property rights including but not limited to those relating (d) Purchaser shall reproduce and include Seller's trade secret to Software Programs. or copyright notices on and in any copies, including but not 3 — Rev. GA -1092 12, DOCUMENTATION AND MEDIA without notice, assign its right to receive moneys due and • ' 12.1. Documentation becoming due. Seller will provide Purchaser, at no additional charge, with one (1) then current Seller copyrighted user manual set with each 13.3. Force Majeure Product shipped pursuant to this Agreement. Additional man- Seller will not be liable for any failure or delay in performance uals or updates may be obtained at Seller's then prevailing due in whole or in part to any cause beyond Seller's control. terms, conditions and charges. 13.4. Governing Law 12.2. Media This Agreement and all transactions under it shall be governed Seller will provide Purchaser, at no additional charge, with one by the laws of the Commonwealth of Massachusetts, excluding (1) set of Seller's then current media, if and as required, with its conflict of laws rules. Any item or service furnished by Seller each Product shipped pursuant to this Agreement. in furtherance of this Agreement, although not specifically iden- tified in it, shall nevertheless be covered by this Agreement 13. GENERAL unless specifically covered by some other written agreement 13.1. Integration executed by Purchaser and an authorized representative of Seller. Purchaser agrees that Seller may use Purchaser's name This Agreement is the complete and exclusive statement of the in lists of representative Seller customers. The headings in this agreement between the parties and supersedes all prior agree Agreement are only for convenience, and are not to be used in ments and communications with respect to the subject matter. interpreting it. The terms of this Agreement shall apply notwithstanding any proposed variations or additions which may be contained in 14. DEFINITIONS: any purchase order or other communication submitted by Purchaser. No Seller employee other than an authorized repre- 14.1. Equipment: sentative of Seller at its offices in Hopkinton, Massachusetts, shall mean the items of computer hardware offered by sale by shall have any actual or apparent authority to modify the terms EMC and listed in Exhibit 1.1 hereof. of this Agreement in any way. All authorized modifications shall be in writing and signed by such authorized representative 14.2. Software: of Seller. shall mean the items of binary software, microcode, firmware and test aids included with the Products and licensed by this 13.2. Assignment Agreement. Neither this Agreement nor individual transactions under it shall be assigned by Purchaser without the prior written con- 14.3. Product: sent of Seller. Seller may, at any time and from time to time, shall mean Equipment and Software The Purchaser hereby acknowledges that he has read this Agreement, understands it, and agrees to - all terms and conditions stated herein. EMC CORPORATION . PURCHASER 7 , . oe w. ;': • �'i':. �w.',' s • _ers By: 6 A.4I_Ii a.` . L By Name: David Soligon N . Ja ck Landon Account Representative A'layor /Chairman Title: Title: Date: Date: / - 2G - 93 ATTEST : DANNY L . KOL}IAGE , CLERK B y a.G►t.0 e. FOR TRADE IN EQUIPMENT SET OUT IN EXHIBIT 1.1 ABOVE: Deputy G 1. Installation of the EMC equipment and release of the trade -in equipment must take place within ten (10) days of delivery of the EMC equipment. 2. The released product must match that described in 1.1 above and must be eligible for the manufacturer's maintenance. 3. All cables, manuals and related hardware in the manufacturer's shipping group (including but not limited to front panels, screens and HDA locks) must accompany the trade -in equipment. APPROVED AS TO FORM Purchaser Initial AND LEGAL SUFFIC ti.Y Rev. GA -1092 ry ADDENDUM TO AGREEMENT FOR PURCHASE BETWEEN EMC CORPORATION ( "Seller ") AND COUNTY OF IvIONROE (FLORIDA) ("Purchaser ") This Addendum dated the day of September 1993, modifies the subject Agreement to the following extent: 1. Article 5, Payment and Security Interest. This article is deleted in its entirety and replaced with the following: "Payment terms are Net Thirty (30) days." 2. Article 6, Warranty. Replace 6.2( with the following: "Purchaser's exclusive remedy for breach of the Software Program warranty above is that Seller will correct any documented nonconformity reported in writing to Seller during the equipment warranty period following delivery and ensure that the Software Programs and the Products conform to Seller's published specifications." 3. Article 7, Patents and Copyrights. In the second paragraph, delete the second sentence, starting with the words, "Purchaser shall defend ... ". 4. Article 11, Disclaimer and Limitation of Liability. Insert the following at the beginning of the first paragraph: "EXCEPT FOR THE NEGLIGENCE OF SELLER'S EMPLOYEES OR AGENTS PERFORMING ON THE PREMISES OF PURCHASER," 5. Article 13.4, Governing Law. In the first sentence replace, "Commonwealth of Massachusetts ", with, "State of Florida, with venue of Monroe County ". 6. All other terms of the Agreement not specifically modified herein shall remain in full force and effect and shall be binding on the parties. Signed by authorized representatives of both parties. EMC Corporation Cou • • f Monroe (Florida) ( "Seller ") (" ; , aser ") — *�-- - Cl/V`CAO A . r 1 L. KOLHAGE, CLERK Signature ignature Pct u I'd 5s1;96n Jack London By a Printed Name Printed Name Deputy erk 11 cc 01.4 lQ epresenta`�'� V() Title Title Title dang/mon oe county, FL/930908.1 APPROVED AS TO Fr AND LE S !E r' /' i ce''