Tandberg U.S.A. - NSHEC Maintenance Agreement

 

MAINTENANCE AGREEMENT, dated as of October 4, 1995, between Tandberg U.S.A. 360 Herndon Parkway, Suite 2200, Herndon, Virginia 22070-4820, and the North Suburban Higher Education Consortium ("NSHEC") for the provision by Tandberg U.S.A of maintenance and other services in respect of the NSHEC Interactive Video Network ("NSHEC Network").

1. TERM. This agreement shall commence as of October 4, 1995 ("Commencement Date") and run for a period of two years, unless earlier terminated in accordance with the terms and conditions below.

2. TANDBERG U.S.A. RESPONSIBILITIES. TANDBERG U.S.A. shall provide the following services ("Services") to NSHEC during the term of this Agreement:

A) Help Desk: TANDBERG U.S.A. shall maintain trained personnel at a toll-free telephone help desk ("Help Desk") to provide technical assistance, problem identification, remote diagnostics and resolution of normal operational problems in cooperation with designated NSHEC Technicians (as identified pursuant to section 3(b) below) at each institution participating in this Agreement (as listed in Schedule A hereto), in accordance with the terms and conditions set forth herein.

(1) Fault identification/resolution. The Help Desk will conduct fault identification and resolution, with continual involvement form trained personnel as necessary. Upon receipt of a call, the Help Desk will attempt to identify the nature of the fault and if possible to resolve it remotely. In the event the fault cannot be resolved remotely within a reasonable time of its being identifies, TANDBERG U.S.A will open a Trouble Ticket, which will not be closed until the fault is resolved. Fault resolution shall be defined as the restoration of all systems to performance in accordance with manufacturer's specifications. TANDBERG U.S.A will actively manage the fault until the problem is resolved or it is determined that on-site service is required. Incase of doubt on the necessity of the site visit, Tandberg U.S.A will consult with the NSHEC Coordinator. If it appears that the fault can be resolved by making use of spare parts in NSHEC's inventory, Tandberg U.S.A will contact the NSHEC Coordinator's office to request use of the NSHEC spare.

(2) Checklist. Tandberg U.S.A shall establish a daily start-up checklist for NSHEC Technicians to provide initial test of system as a means of ascertaining that the system and network are in good operating condition.

(3) Vendor Management. Tandberg U.S.A shall be responsible as NSHEC's agent, for managing the maintenance of the equipment and services supplied by other vendors pursuant to contractual arrangements between such vendors and NSHEC. Tandberg U.S.A. will be the "Single Point of Contact" to work the problem through to resolution, engaging other vendors as required. In the event of any circuit or network problems, Tandberg U.S.A. shall as NSHEC's agent, contact and work directly with the contracted circuit or network provider (including Ameritech and Sprint) and the institution's NSHEC Technicians until such problems are resolved.

NSHEC shall take all necessary and appropriate steps to ensure that Tandberg U.S.A authority to manage such maintenance is conveyed to and accepted by all such vendors. Tandberg U.S.A does not share or assume the obligations of any vendor, and does not in any manner guarantee the performance of any vendor under its agreements with NSHEC. Tandberg U.S.A vendor management responsibilities under this section extend only to the equipment and services interfacing with or essential to the operation of videoconferencing systems that are otherwise covered by this agreement or by existing Tandberg U.S.A warranty coverage. Tandberg U.S.A's vendor management responsibilities shall not extend to public utilities or to building-related equipment and services. Tandberg U.S.A shall give NSHEC prompt notice of any failure of performance by outside vendors, but shall have no obligation beyond the giving of such notice.

(4) Availability: The Help Desk shall be available for a minimum of the following times ("Hours of Availability"): Monday-Friday, 7:00 a.m. to 8:00 p.m. and Saturday 8:00 a.m. to 12:00 noon (Central Time), excluding the holidays listed in section 4(b)(1). The Saturday time may be extended to 1:00 p.m. (Central Time) at the request of NSHEC if Tandberg U.S.A is notifies by Friday at 2:00 p.m. (Central Time). Mondays through Saturdays, holidays excepted, shall be referred to herein as "Business Days."

(5) Response Times: Tandberg U.S.A's Help Desk shall make reasonable efforts to observe the following response times:

(a) System Failure. For a fault that results in the inability to conduct videoconferencing calls at one or more sites ("System Failure"), Tandberg U.S.A. shall respond within 30 minutes of receipt of the call during the Hours of Availability and shall commence efforts to identify and correct the fault, and shall promptly contact any vendors other than Tandberg U.S.A whose equipment or services are identified with the fault.

b) Minor Fault. For a fault in one or more components of the systems not amounting to a System Failure ("Minor Fault"), Tandberg U.S.A shall respond within one hour of receipt of the call during the Hours of Availability.

c) Information Calls. For calls placed to the help Desk for purposes of information or planning or inquiry not relating to an immediate fault, Tandberg U.S.A shall respond within two hours of receipt of the call during the Hours of Availability.

(B) On-Site repair

(1) On-site service. Where on-site service is required, Tandberg U.S.A shall at its cost provide: (a) labor, travel, time and expenses for field engineer, (b) testing of the system using power-on and run diagnostics, and (c) verification of complete system functionality using all replaced components. The cost of repairing or replacing parts shall be borne as follows: For Tandberg U.S.A - supplied equipment covered by warranty, by Tandberg U.S.A; for Tandberg U.S.A -supplied equipment not covered by warranty, by NSHEC; for equipment supplied by third-party vendors, by NSHEC (or by such vendors under any applicable warranties or maintenance/parts agreements). Defective equipment shall be repaired or replaced. All equipment being returned for repair shall be tracked by Tandberg U.S.A. The Tandberg U.S.A Trouble Ticket will remain open until all equipment has been repaired and returned to NSHEC's inventory, and Tandberg U.S.A shall make every reasonable effort to repair or replace the NSHEC spare in a timely manner.

(2) Vendor management. Tandberg U.S.A shall be responsible, subject to the same conditions as set forth in section 2(A)(3), for managing the maintenance provided by vendors other than Tandberg U.S.A pursuant to existing agreements between NSHEC and such vendors, as necessary to maintain all components of the NSHEC Network (except facsimile machines, VCRs, printers, computers, and audio-conferencing equipment). Tandberg U.S.A shall (I) remain available for contact with the trouble site during the Hours of Availability until the problem is resolved; and (ii) contact equipment suppliers to order replacement part(s) for the account of NSHEC. If dispatch of a third party service technician is required for trouble resolution, Tandberg U.S.A shall make such a request. Upon failure of performance of outside vendors, Tandberg U.S.A shall give NSHEC prompt notice thereof.

(3) Response Time. For all Tandberg U.S.A - supplied equipment, whether or not under warranty coverage, Tandberg U.S.A (or its subcontractors) shall make reasonable efforts to arrive at the site to commence on-site repair by noon the next Business Day if the fault is identified by 7:00 p.m. (Central time) the prior day. The technician shall have any spare parts identified by the Help Desk as necessary to correct the fault. On-Site repair service is provided between 8:00 a.m. and 5:00 p.m. weekdays and 7:00 a.m. and 12:00 p.m. Saturdays (Central time).

(4) Escalation. If problem identification and a plan for resolution have not been completed within four hours of the arrival on-site of the Tandberg U.S.A representative, the fault shall be reported to the Tandberg U.S.A Technical Services Manager for a decision on additional resource allocation. Should the situation persist for another four hours then the Tandberg U.S.A Director of Operations will be notified.

(C) Routine Network Monitoring/Maintenance. With respect to routine monitoring/maintenance, Tandberg U.S.A shall:

(1) Conduct an annual on-site preventative maintenance inspection, and test all existing sites prior to the start of the fall semester.

(2) Conduct remote quarterly scheduled check of the MCUs, DCS, and CSU at the hub site as well as the room equipment and the network telephone lines.

(3) Assist the institution's on-site NSHEC Technician to conduct a routine quarterly remote inspection using the system checklist.

(4) Assist in conducting a routine quarterly remote inspection of the network lines in collaboration with Ameritech/Sprint and the institution's on-site NSHEC Technician.

(D) Support for user training. With respect to user training, Tandberg U.S.A shall:

(1) Provide telephone assistance to all new NSHEC Technicians by providing "walk through" support in the use of the videoconferencing equipment and the network;

(2) Provide an engineer for periodic technical training sessions for the on-site NSHEC Technicians as named by NSHEC. This includes working with the NSHEC Technical Subcommittee to establish training needs and support for the NSHEC in the actual training.

(3) Provide orientation training for NSHEC users as requested by NSHEC.

(E) System Scheduling Support. With respect to system scheduling, Tandberg U.S.A shall:

(1) Provide problem resolution for and updates to the scheduling software as needed. This provision shall be honored regardless of vendor, subject to any necessary licensing and /or support arrangements with such vendors. Additional charges will be passes to NSHEC for any costs imposed by the scheduling-software vendor for training of Tandberg U.S.A personnel and/or for additional maintenance or licensing fees;

(2) Provide emergency scheduling on the scheduling software only when none of the NSHEC designated Site Facilitators (as provided for in section 3(a) below) are available for this purpose. Each time that Tandberg U.S.A. provides a connection through the scheduling software, with exception of Sprint Diamond Network/IMUX connection, a charge of $15.00 shall be assessed to NSHEC.

(F) Reports and Recommendations. Tandberg U.S.A. shall, in the first week of each month, provide a monthly summary report of all activities to the Cooordinator's office, including: open Trouble Tickets as of the start of the reporting period and their current status; and all Trouble Tickets opened during the prior and their current status. Attached to the summary report will be copies of the actual Trouble Tickets which will include who initiated the Trouble Ticket, a log of calls (time, caller's name, highlights of the call, etc. ) why the problem was being reported, and the actions taken to resolve the problem. Based on the observations and experience of the Tandberg U.S.A Technical Services organization and a review of the Trouble Tickets opened by NSHEC, and Tandberg U.S.A Technical Services Manger shall, on a quarterly basis, prepare a formal report which is submitted to the NSHEC Coordinator's Office. This report will highlight the types of problems being experience, their frequency, and what corrective actions and/or modifications in equipment, procedures, and training is recommended in order to minimize future site/network problems.

3. NSHEC RESPONSIBILITIES. The following shall be the responsibilities of NSHEC and the individual sites:

(a) Each NSHEC site shall appoint one (1) Site Facilitator who call be responsible for day-to-day scheduling of the videoconferencing room. The Site Facilitator shall arrange for access to the videoconferencing room for all Tandberg U.S.A representatives.

(b) At each site NSHEC shall designate two trained technical personnel ("NSHEC Technicians") to work with Tandberg U.S.A on videoconferencing and network issues, and shall assure that those technicians have on-going training, which shall be provided by Tandberg U.S.A; and NSHEC shall ensure that only those NSHEC Technicians shall attempt to perform any maintenance functions on the equipment covered by this Agreement.

(c) The hub site and each other site shall test the system at the beginning of each day using the start-up checklist, and shall recheck at least one-half hour prior to each scheduled class or other use. All NSHEC sites shall ensure that an NSHEC Technician is available at these times to check the equipment and connections. This includes verification of correct network provisioning, including end-to end test and premises wiring, prior to calling the "Help Desk."

(d) NSHEC shall ensure that all equipment in the cabinets at each site remain on at all times.

(e) Each site shall perform routine preventative maintenance and monitoring as established by Tandberg U.S.A.

(f) NSHEC shall ensure that for each participating institution's on-site NSHEC Technicians and any replacements therefor, initial and ongoing training is obtained from Tandberg U.S.A.

(g) The hub site shall have a modem and analog line to allow Tandberg U.S.A to dial in for remote diagnostics. A second analog line shall be available in the room near the videoconferencing equipment for on-site troubleshooting. NSHEC shall provide, at the hub site, adequate working space, including heat, light, ventilation, electric current, and telephone and power outlets for the use of Tandberg U.S.A personnel and its authorized agents.

(h) Each non-hub site will have a modem and analog line connected to the videoconferencing equipment to allow Tandberg U.S.A to dial in for remote diagnostics. A second analog line will be available in the room near the videoconferencing equipment for on-site troubleshooting. NSHEC shall provide, at each non-hub site, adequate working space, including heat, light, ventilation, electric current, and telephone and power outlets for the use of Tandberg U.S.A personnel and its authorized agents.

(i) NSHEC shall purchase a specified inventory of critical spares as recommended by Tandberg U.S.A and set forth in Schedule B. The spares shall be stored at a site agreed upon with Tandberg U.S.A.

(j) NSHEC represents and warrants that it has full power and authority (including, where applicable, any necessary permits or authorizations) to enter into this Agreement and to fulfill all of its obligations hereunder. If this Agreement is to be executed on behalf of AND by anyone other than a duly constituted officer of, then NSHEC shall provide a certificate of authorization in a form reasonably acceptable to Tandberg U.S.A, for such person.

4. SERVICE EXCLUSIONS AND LIMITATIONS. The following conditions limit or exclude the types and extent of coverage and services under this Agreement:

(a) Equipment eligibility. The services provided by Tandberg U.S.A under this Agreement shall apply only to the NSHEC Network, and shall not apply to any room and hub equipment not installed by Tandberg U.S.A or their designated representative at the NSHEC sites. (The covered equipment shall be described in the attached Schedule C.) Excluded equipment includes, but is not limited to the computer, printer, fax, VCRs, and audio-conferencing units at the NSHEC sites. (The scheduling software, the T1 lines supplied by both Ameritech and Sprint, and the Sprint Diamond Network Line(s) shall be included as specifically provided in sections 2(A)(3) and 2(B)(2), on the terms and conditions stated therein.)

(b) Exclusions from service. The following are not covered by this Agreement:

(1) Service outside the contracted hours or on the following holidays: New Year's Day, President's Day, Memorial Day, Independence Day, labor Day, Thanksgiving Day, Day after Thanksgiving, Christmas Day, Day after Christmas;

(2) Service for faults arising from the telecommunications network, or from alterations to the equipment, including any interconnection and devices not supplied or approved in writing by Tandberg U.S.A;

(3) Service of equipment to meet performance criteria beyond manufacturer's design criteria or to correct Customer modification to software or hardware;

(4) NSHEC-specific software programming, with the exceptions of the NSHEC scheduling software and the ICI videoconferencing control software;

(5) Service for faults arising from departures from specified environmental or room conditions, including but not limited to electrical power, air conditioning, humidity control or room remodeling, unavailability of analog line for remote diagnostics, or any events of force majeure as identified in section 10;

(6) Painting or refinishing the Equipment;

(7) Electrical work external to the Equipment;

(8) Installation, maintenance, service, replacement or removal of alterations, attachments or other devices not furnished or approved in writing by Tandberg U.S.A.

(9) Neglect or misuse of equipment (other than neglect or misuse by Tandberg U.S.A, its subcontractors or agents);

(10) Accident, natural disaster, or other casualty.

(c) Time and materials coverage. Maintenance Services necessitated by any of the causes excluded from coverage by the preceding subsection may be performed by Tandberg U.S.A on a time-and-materials basis, which includes a minimum charge of three hours (at an hourly rate of $110), plus all parts, materials and actual expenses incurred, including travel expenses.

5. CHARGES

A.) First year charges. The first year cost shall be payable within 30 days of the signing of this agreement. This includes a fee per site for those sites, which are no longer under warranty per site for the sites, which are under warranty, and for the hub site.

B.) Second-year charges. The second-year cost shall be no more than which includes no more than for the existing 23 sites and for the hub equipment. This represents an increase not to exceed 5% per site above the base fee in the first year for rooms out of warranty and for the hub. New sites added to the network shall be at a charge of no more than per site, which includes an increase of no more than 5% above the based fee in the first year for rooms under warranty. The second year payment shall be payable on October 4, 1996.

 C. Ancillary Charges. No other charges shall be invoiced to NSHEC except for the following:

(1) "Help Desk" calls for system scheduling support as described in section 2(E) above;

(2) Parts required to repair out-of-warranty equipment as described in section 2(B) above;

(3) On-site user training provided by Tandberg U.S.A pursuant to section 2(D)(2) or (3), at the request of NSHEC, at a cost of $500.00 per day;

(4) Parts or services obtained from third-party vendors on behalf of NSHEC to the extent such charges are not charred directly to NSHEC (provided, however, that Tandberg U.S.A shall have no obligation to incur such expenses directly, irrespective of reimbursement);

(5) Time-and materials charges as provided in section 4(c) above.

Tandberg U.S.A may invoice NSHEC for any of the ancillary charges listed above when the services are rendered or when the parts are delivered. Payment shall be due within thirty (30) days of invoicing. Any amounts payable under his Agreement that are past due will bear interest at the rate of one and one-half percent (1 1/2 %) per month from the due date.

D. Taxes. In addition to the maintenance fees and any other amounts due under this Agreement, NSHEC shall pay any sales, use, transfer or excess tax, tariff or duty imposed with respect to the subject of this Agreement., except taxes based upon the net income of Tandberg U.S.A.

6. CONTRACT PERFORMANCE REVIEW. A Performance Review Committee shall be established by the NSHEC Steering Committee and hold the first meeting no later than April 30, 1996, to review the performance relative to this agreement. The conditions for the review of deliverables shall be determined by May 31, 1996., and the review completed by June 15, 1996. The committee shall include no fewer than three representatives from NSHEC (one each from the Steering Committee, Institutional Coordinators Subcommittee, and Technical Subcommittee) and no fewer than one representative from Tandberg U.S.A as designated by the Executive Vice President of Tandberg U.S.A. The performance review shall include review of the following matters:

(A) Availability of "Help Desk" Personnel during hours designated;

(B) Adequate training of "Help Desk" personnel;

(C) Frequency/nature of use of "Help Desk" determined from review of the call logs;

(D) Mean response times for:

(1) problem resolution;

(2) third-party diagnostic/problems resolution;

(3) on-site repair;

(E) Maintenance/monitoring - quarterly preventive checks;

(F) Inventory management - review of trouble tickets used for tracking repair/replacement of spares;

(G) Scheduling system support - review of trouble tickets opened for scheduling rooms;

(H) Reports - monthly and quarterly reports; and

(I) User training - as identified by Tandberg U.S.A and NSHEC.

7. TERMINATION. Either party may immediately terminate this Agreement in the event that any bankruptcy arrangement, receivership or other insolvency proceeding is commenced by or against the other party, or in the event of appointment of an assignee for the benefit of creditors or of a receiver of the other party or its properties, or upon any material breach of this Agreement by the other party if such breach is not remedied within thirty (30) days following receipt of notice from the other party specifying such breach.

8. NO WARRANTIES. THE PARTIES HERETO AGREE AND ACKNOWLEDGE THAT THIS IS A SERVICE AGREEMENT. EXCEPT AS SET FORTH IN SECTION 2 ABOVE, TANDBERG U.S.A MAKES NO REPRESENTATION OR WARRANTIES, EXPRESS OR IMPLIED, WITH RESPECT TO THE MAINTENANCE SERVICES OR SPARE PARTS TO BE PROVIDED UNDER THIS AGREEMENT. TANDBERG U.S.A EXPRESSLY DISCLAIMS ANY AND ALL IMPLIED WARRANTIES, INCLUDING WITHOUT LIMITATION, ANY IMPLIED WARRANTY OF MERCHANTABLILITY OR FITNESS FOR A PARTICULAR PURPOSE.

9. LIMITATION OF LIABILITY. IN NO EVENT SHALL TANDBERG U.S.A OR ANY OF ITS OFFICERS, DIRECTORS, EMPLOYEES, AGENTS OR SUBCONTRACTORS BE LIABLE FOR ANY FORM OF INDIRECT, SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES (INCLUDING, WITHOUT LIMITATION, LOSS OF USE OR LOST BUINESS, REVENUE OR GOODWILL) ARISING IN CONNECTION WITH THIS AGREEMENT, THE MAINTENANCE SERVICES OR OTHER SERVICES PROVIDED UNDER THIS AGREEMENT, THE EQUIPMENT AND/OR THE INTENDED USE THEREOF, UNDER ANY THEORY OF TORT, CONTRACT, STRICT LIABILITY OR NEGLIGENCE, EVEN IF TANDBERG U.S.A AND/OR ITS OFFICERS, DIRECTORS, EMPLOYEES, AGENTS OR SUBCONTRACTORS HAVE BEEN ADVISED, KNEW OR SHOULD HAVE KNOW OF THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT SHALL ANY DAMAGES WHICH MAY BE ASSESSED UPON TANDBERG U.S.A FOR ANY REASON EXCEED THE MAINTENANCE CHARGES PAID BY CUSTOMER UNDER THIS AGREEMENT DURING THE PRECEDING TWELVE MONTH PERIOD. ANY ACTION AGAINST TANDBERG U.S.A OR ANY OTHER PARTY LISTED ABOVE MUST BE COMMENCED WITHIN ONE (1) YEAR AFTER THE CAUSE OF ACTION ARISES.

10. FORCE MAJEURE. The obligations of Tandberg U.S.A under this Agreement shall be suspended to the extent and for the Perrier of time that Tandberg U.S.A is hindered from fulfilling its obligations hereunder because of, and Tandberg U.S.A shall not be liable for damages for any delay which is substantially the result of, any act of cause beyond Tandberg U.S.A's control, including, without limitations, picketing or boycotts), acts of God, fire, storm, explosions, or governmental action. No delay in Tandberg U.S.A's performance shall excuse the payment by Customer of any monies then due and payable.

11. ASSIGNMENT. This Agreement may not be assigned by either party without the other's prior written consent, which consent shall not be unreasonably withheld. Tandberg U.S.A may, without the consent of Customer, assign its rights and obligations hereunder to a successor in interest or to an affiliated company and may delegate performance of its obligations under this Agreement.

12. PROMOTION AND ADVERTISING. Customer agrees to allow Tandberg U.S.A to cite Customer in its promotional and advertising literature as well as in proposals and communications with customers and prospective customers as would be considered proper and reasonable by Tandberg U.S.A.

13. NOTICES. Any notice required or permitted under this Agreement shall be in writing and shall be deemed to have been duly given on receipt by the parties at their respective addresses set forth below:

Or to such other address or telefax number as either party may, from time to time, designate in a written notice given in like manner. Copies of all notices to Tandberg U.S.A shall be sent to its Legal Department at 40 East 52^nd Street, New York, NY 10022.

14. MEDIATION. The parties shall attempt in good faith to resolve by mediation any dispute arising out of or relating to this agreement. Either party may initiate a mediation proceeding by a request in writing to the other party. Thereupon, both parties will be obligated to engage in mediation. The proceeding will be conducted in accordance with then-current CPR Model Procedure for Mediation of Business Disputes, with the following exceptions:

(A) if the parties have not agreed within 30 days of the request for mediation or the selection of a mediator willing to serve, the Center for Public Resources, upon the request of either party, shall appoint a member of the CPE Panels of Neutrals as the mediator;

(B) the mediator shall, promptly after his (her) appointment, schedule meetings with the parties in accordance with procedures agreed upon by the parties, or, failing such agreement, pursuant to procedures established by the mediator; and

(C) efforts to reach a settlement with the assistance of the mediator shall continue until the conclusion of the proceeding, which is deemed to occur when: (a) a written settlement is reached, or (b) the mediator concludes and informs the parties in wiring that further efforts would not be useful, or (c) the parties agree in wiring that an impasses has been reached. Neither party may withdraw before the conclusion of the proceeding.

The parties regard the aforesaid obligation to mediate an essential provision of this agreement, and they accept such obligation as legally binding on them. In case of a violation of such obligation by either party, the other may bring an action to seek enforcement of such obligation in any court of law having jurisdiction thereof.

15. GOVERNING LAW. This Agreement shall be construed in accordance with the laws of the State of Illinois without regard to its conflict of law principles.

16. GENERAL.

(a) Any term of this Agreement may be waived in writing by the party entitled to the benefits thereof. No waiver of any condition or breach shall be deemed to be a further or continuing waiver of such condition or breach. Delay or failure to exercise any right or remedy shall not be deemed the waiver of that right or remedy.

(b) Any provision of this Agreement which shall be determined by a court of competent jurisdiction to be invalid or unenforceable shall be severed from this Agreement without invalidating the remaining provisions thereof.

(c) This Agreement represents the entire agreement between the parties with respect to the maintenance of the Equipment and supersedes any prior representations, negotiations or agreements between the parties. This Agreement expressly supersedes the Interim Agreement of September 30, 1995 between Tandberg U.S.A and NSHEC, which shall be of no further force or effect. Any modifications of this Agreement shall be in writing and signed by the parties.

 

 

Tandberg U.S.A.

NSHEC