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HomeMy WebLinkAboutEquipment Upgrade / Dictaphone Corporation Augusta Richmond GA DOCUMENT NAME: E'i, \)1- r '" ~.J-t" '06> <:l f1.A \) l;" / D {C 1" ()P 1-/0'" -l': eo RfO~AT)O(Il DOCUMENT TYPE: A5~€~(Y)~\ YEAR: dDD3 BOX NUMBER: ) Y FILE NUMBER: / l.e ., '3 '3 NUMBER OF PAGES: (p Di~. "'UI!!! .. Dictaphone Corporation 3984 Pepsi Cola Drive Melbourne, Florida 32934 DICTAPHONE CORPORATION EQUIPMENT UPGRADE PROGRAM AGREEMENT Dictaphone Corporation ("Dictaphone") and Augusta, Georgia ("Customer") hereby agree to the following terms and conditions for upgrading the Customer's equipment; 1. Dictaphone will provide and install additional equipment ("Addi tional Equipment") as described in Exhibit "A" to this Equipment Upgrade Program Agreement (the "Agreement") to replace and supplement original equipment used by Customer. Dictaphone will do this at no additional charge to the Customer. During the term of this Agreement the title to the Additional Equipment will remain with Dictaphone. Upon completion of the full term of this Agreement and the scheduled payments to Dictaphone hereunder, title to the Additional Equipment will automatically transfer from Dictaphone to the Customer. If the Customer does not make all required payments hereunder, the Additional Equipment will be returned to Dictaphone in good repair, condition and working order, ordinary wear and tear resulting from proper use thereof only excepted, in a manner and to a location reasonably designated by Dictaphone. All costs incurred in returning the Additional Equipment, for any necessary repairs to the Additional Equipment and for any damages sustained by Dictaphone as a result of Customer's failure to return the Additional Equipment as required, will be the sole responsibility of the Customer. 2. As a feature of this Equipment Upgrade Program, Dictaphone agrees, subj ect to the terms and conditions hereof, for a period of five (5) years from the date of commencement, , ,2002, to maintain, for the Customer, the Addi tional Equipment and any other Dictaphone supplied hardware which Customer is using as of the date of commencement (collectively the "Equipment") and Dictaphone supplied software (the "Programs", and collectively with the Equipment, the "System") covered hereby in an. efficient operating condition (subj ect to the limitations of licensed third party software) , including software "bug" fixes, patches, or shop repairs or overhauls if deemed necessary by Dictaphone in accordance with and subj ect to the limitations of the terms of this Agreement, or any maintenance agreement which may be entered into between the parties as a supplement hereto, 3. All necessary replacement parts will be furnished to Customer by Dictaphone without charge, except when replacement is required because of (i) fire, flood or bther casualty, accident, abuse, misuse, mishandling, power line fluctuations, computer viruses unattributable to Dictaphone, or use of recording media, disks, ribbons, printwheels, or consumables other than a type or specification authorized or recommended by Dictaphone. The labor cost for repair or replacement of record or reproduce head assemblies associated with mul ti- channel recording and reproducing equipment is covered by this Agreement. Notwithstanding anything to the contrary herein, parts for repair or replacement of record or reproduce head assemblies will be billed at then current list prices. 4. Supplies such as expendable batteries, recording media, disks, printwheels, or other consumables, such as printer maintenance kits, are not covered under this Agreement. 5. No charges will be made for necessary service calls during Dictaphone's normal working hours, except when caused by fire, flood or other casualty, accident, abuse, misuse, mishandling, power line fluctuations, computer viruses unattributable to Dictaphone, or use of r"ecording media, disks, ribbons, printwheels, or consumables other than the type or specification recommended or authorized by Dictaphone or use or operation with equipment, systems, peripherals or software not supplied to Customer by Dictaphone. Dictaphone shall not be obligated to provide service outside of Dictaphone's normal working hours unless Customer has selected 24/7 coverage to be priced separately. Dictaphone's normal working hours are defined as 8 a.m. (0800 hours) to 5 p.m. (1700 hours), Monday through Friday, excluding United States federal holidays. 6. Problems caused to Programs or Equipment by (i) any non- Dictaphone software used with Equipment by Customer, or (ii) the use or operation of any equipment, systems, peripherals ~r software not supplied to Customer by Dictaphone, or (iii) computer viruses unattributable to Dictaphone are not covered hereunder. Dictaphone's representative, at Customer's request, will attempt to correct any problem contemplated by this Section 6 and restore Customer's Programs or Equipment covered by this Agreement to original operating condition at the then current standard hourly rate. NOTWITHSTANDING ANYTHING TO THE CONTRARY HEREIN, DICTAPHONE SHALL NOT BE LIABLE HEREUNDER FOR ANY INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES (INCLUDING, BUT NOT LIMITED TO, LOST PROFITS OR LOST REVENUE) OF ANY KIND. 7. On applicable systems, software support, maintenance upgrades, and replacement of exiting Programs during normal working hours is included. Twenty-four (24) hour diagnostic monitoring via the Service Our System (S. O. S.) call response feature is 2 included. On-site Option I will be business day. response to after-hours S.O.S. during normal working hours of calls for the next 8. The payment terms for this Agreement are set forth on Exhibit A attached hereto. I 9. EXCEPT AS PROVIDED IN THE FOLLOWING TWO PARAGRAPHS, THIS AGREEMENT IS A BINDING CONTRACT WHICH MAY NOT BE CANCELED FOR A TERM OF FIVE(5) YEARS. It is understood and agreed that the Customer is a government entity and shall not be obligated to make any payments hereunder if funds are not legally available for that purpose. If Customer does not receive an appropriation of funds to make any payment required under this Agreement and has no legally available funds to make such payment, the Customer may terminate this Agreement on thirty (30) days written notice to Dictaphone. If Customer terminates this Agreement as aforesaid, it will return all of the Additional Equipment as required under the terms of this Agreement, and, except as provided in the next paragraph, the parties will have no further liability to one another. 10. Customer acknowledges and agrees that Dictaphone holds a first priority security interest in the Additional Equipment, as well as any additions, accessions thereto and replacements thereof, and is authorized to file a financing statement to perfect the same. All of Dictaphone's rights under this Agreement, including all rights to payment and the security interest in the Additional Equipment may be assigned and reassigned in whole or in part to one or more assignees by Dictaphone at any time, without the consent of Customer. However, Dictaphone shall not assign its obligations or responsibility for performance under this Agreement, and Customer agrees that no assignee shall be bound to perform any duty, covenant, condition. or warranty (whether expressed or implied) attributable to Dictaphone. Except for the termination privilege set forth in Section 9 hereof, Customer further agrees that it will not assert any claim or defense arising out of this Agreement against any assignee, and its obligation to make the payments required hereunder to an assignee will be continuing, unconditional and absolute notwithstanding any default or non-performance by Dictaphone. 11. Customer has its own risk retention program. 12. Except as expressly provided in Section 10 above, this Agreement may not be assigned to any party. 13. Customer warrants and represents to Dictaphone that all necessary actions and approvals have been taken regarding authorization, execution, delivery, and compliance with all applicable statutes, regulations and ordinances, and 3 performance of all and represents that legally enforceable terms. obligations hereunder. Customer warrants this Agreement is legally binding upon and against Customer in accordance with its 14. This Agreement may be canceled by Dictaphone in writing if recording media, disks, accessories, attachments, or consumables other than the type or specifications recommended by Dictaphone are used, or if any modifications are made to the Equipment and/or Programs by anyone other than authorized Dictaphone personnel, including, but not limited to, Customer, or Customer's agents, employees, or contractors. elist,orner ~a, :gia Dictaphone Corporation JDYl E.lY Title: VP 'HMrce t aPg Date: MarCh 3\J 2CD5 Name: Bob You Title: Mayor Date: January 16, 2003 4 DiclipjJ. Dictaphone Corporation 3984 Pepsi Cola Drive Melbourne, Florida 32934 ~88-47l-3463 Ext. 6321 EXHIBIT A DICTAPHONE CORPORATION EQUIPMENT UPGRADE PROGRAM AGREEMENT New Equipment: Freedom Recorder Customer shall make payments to Dictaphone or its Assignee according to the following schedule. , 2003 , 2004 , 2005 , 2006 , 2007 $ 16,970.68 $ 16,970.68 $ 16,970.68 $ 16,970.68 $ 16,970.68 Customer BY:(V Name: Title: Mayor Date: 1/16/03 E.Tro VP l="\ mnce t Acdg Date: Mardi u\, '2Crf5 . 5 NOTICE OF ASSIGNMENT CUSTOMER: Augusta, Georgia 911 Fourth Street Augusta, GA 30911 Date: Equipment Upgrade Program Agreement ("Agreement") Dated: ,2003 Commencement Date of Payments To Fleetwood Financial Corp. ,2003 Gentlemen: This is to advise you that we have assigned to Fleetwood Financial Corp., 4 Ethel Road, Suite 405A, Edison, New Jersey 08817, all of our rights, title and interest (but not our obligations) under the above Agreement with you and all sums due and to become due thereunder, and to the equipment covered thereby. Accordingly, you are authorized and instructed to make all payments by check payable to the order of Fleetwood Financial Corp., and to send same directly to its at its address above or as instructed by Fleetwood Financial Corp. Said assignment in no way affects our obligations under the agreement or any related service agreement. Please acknowledge receipt of this notice of assignment that under the terms of the referenced Agreement there remains due and owing five (5) annual payments commencing , 2003 in the amount of $16,970.68 to Fleetwood Financial Corp. and that there is no defense, offset or counterclaim to your obligations under the agreement, except in the event of non-appropriations to the annual budget with the conditions restricting the use of any such similar equipment, as of the date hereof, by signing the enclosed copy of this letter. Very truly yours, AGREED TO AND ACKNOWLEDGED: DICTAPHONE CORPORATION Customer: AUGUST~ON~UNTY Bob Young Title: Mayor 6