Fort Walton Beach Council agenda — 02-22-11 regular — reading text

agrees to recognize and cooperate with such third parties in facilitating the performance of ARISTA' s obligations hereunder. 2. Completion Times. 3 ARISTA will furnish and mail the completed product as described in Schedule " A" and provide any other products and computer services pursuant to the Delivery and Time Schedules set forth in Schedule B ". O In no event shall ARISTA be liable for any delay in the performance or delivery of any service or product due to failure by Customer to timely provide information, data and any other items as are reasonably required by ARISTA to perform its obligations; PROVIDED, however, that if Customer fails to provide correct and complete data in accordance with mutually agreed time schedules, ARISTA will promptly request the additional data and E reschedule and process Customer' s work within the time limits provided in Schedule " B ". Customer agrees to Q extend the time schedules for this purpose. Data will be deemed to have been timely submitted by Customer if V received by ARISTA on or before the time limits set forth in Schedule " B ". j c ce 3. Term. This contract shall commence on the date of acceptance and signing of the agreement by Q both parties and shall continue for 24 months from the date of customer' s first processing. Thereafter, this Agreement shall be automatically renewed with satisfactory performance and the mutual agreement of both parties to for up to two successive twenty -four (24) month periods unless written notice of termination is given by either party at least sixty (60) days prior to the anniversary date on which the termination is to be effective. o Either party may terminate this agreement, either in whole or in part, by giving at least 45 days prior notice in writing v ca 4. Pricina/Invoicine. a) The prices for products and services are set forth in Schedule " B ". Q b) Any sales and use taxes, and any other similar taxes applicable to the production, sale, use, storage, delivery or transportation of the products and services shall be calculated and paid by Customer. c) In addition to the prices set forth in Schedule " B ", Customer shall pay estimated postage costs prior to the mailing of Customer' s customer invoices. Estimated postage costs shall be equal to Customer's actual postage costs for the preceding month. If in any given month Customer pays estimated postage in excess of the postage costs actually attributable to Customer, ARISTA shall apply such excess payment to Customer's postage  costs for the subsequent month. ARISTA shall sort Customer's mail to obtain the most advantageous postage rates, and shall provide Customer with an accounting of all postage costs incurred. d) Shipment of products shall be F.O.B. e) Customer agrees to pay ARISTA promptly for such services as rendered to client on a monthly basis. ARISTA will send an invoice each month, and the Customer shall make payment within fifteen ( 15) days after receipt ofthe invoice. If Customer fails to pay any invoice within 30 days from the invoice date, ARISTA shall notify Customer that such invoice is past due, and such invoice may be subject to a late charge fee of 1. 5% of total due. f) U) In order to achieve volume discounts on custom form, envelopes and other preprinted d material ordered on behalf of Customer, ARISTA may purchase up to a 6 month supply of these items in advance. In the event Customer cancels this contract or requests changes to these items, Customer shall be responsible for the cost incurred by ARISTA or the remaining inventories of such items. to c 5. Customer Data /Proprietary Ri bts, a) All data furnished by Customer pursuant to this Agreement shall at all times remain the 00 property of the Customer. ARISTA shall not be responsible for loss or destruction of Customer data, or materials, unless due to the negligence of ARISTA. ARISTA' s liability for any negligent loss or destruction of data is limited to restoring the data, provided such restoration can be reasonably performed by ARISTA, and further provided that 4- Customer provide ARISTA all source data and materials in readable format for such restoration; it being presumed 0 conclusively that any data delivered to ARISTA has been backed up by duplicate material retained by the Customer. ARISTA shall have the right to copy and retain all such data and materials for its files as it deems necessary for es 3 internal processing use only. Such restoration shall be done without charge to Customer. a b) ti Customer shall use its reasonable best efforts to assure the accuracy and adequacy of all data LO and other items provided to ARISTA, and for all results obtained there from. ARISTA shall not be responsible for T_ errors or omissions resulting from any inaccuracy or defect in any Customer -supplied data or materials. Customer shall pay ARISTA, at rates specified in Schedule " B ", for any processing reruns or any other additional work performed by ARISTA due to Customer submitting data or materials which are incorrect or incomplete. All data Q and materials supplied by Customer shall be returned by ARISTA upon completion of use by ARISTA or upon termination of this Agreement. v ca c) All information, programs, software, artwork, films, molds, plates, dyes, negatives, positives and all other items, machinery or materials furnished, developed or created by ARISTA, its contractors, 4 subcontractors or agents in providing the products and services shall remain ARISTA' s exclusive property. cp 6. Confidential Information. ARISTA agrees to deny unauthorized access to, and to take reasonable steps to protect, the 0 confidentiality of Customer's data and materials and resultant output that is designated as confidential by Customer. r Neither party shall be required to keep confidential any information nor data which is or becomes publicly available, c as is already known or is independently developed by such party outside the scope of this Agreement, or is rightfully obtained by third parties. t Notwithstanding the foregoing, ARISTA may provide such information to any third ca parties who may provide any of the products or services under this Agreement, provided such third party agrees to keep such confidential data and material confidential. a 7. Warranties and Limitation of Liabilities. a) Upon written request of Customer, ARISTA shall pursue with reasonable diligence a claim for breach of, or at ARISTA' s option shall assign and transfer to Customer, any warranty available to ARISTA from manufacturers or third -party vendors for products supplied to Customers under the terms of this Agreement Packet Pg. 8  b) In the event errors or deficiencies in completed work result from ARISTA' s performance hereunder, ARISTA will correct such errors or deficiencies for which ARISTA receives timely notice from Customer, but ARISTA' s obligations shall be limited to correcting such errors or deficiencies. Where correction is impossible or impractical, Customer shall be entitled to a refund for that portion of the computer services or products which contain such errors or deficiencies. If computer services are interrupted or delayed for any reason, ARISTA will resume the computer services as soon as reasonably practical. ARISTA shall not be liable for any damages arising from delays in processing or in the delivery of the processed work. THE PROVISIONS HEREOF COMPRISE CUSTOMER' S SOLE AND ENTIRE c) WARRANTY. ALL OTHER WARRANTIES EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO THE WARRANTIES OF MERCHANTABILITY AND OF FITNESS FOR A PARTICULAR PURPOSE, ARE EXPRESSLY EXCLUDED. N d) THE REMEDIES HEREIN CONTAINED ARE EXCLUSIVE AND CUSTOMER WAIVES ALL OTHER REMEDIES. a to e) IN NO EVENT SHALL ARISTA BE LIABLE FOR INDIRECT, CONSEQUENTIAL OR c SPECIAL DAMAGES, OR FOR LOST PROFITS OR MARGINS, WHETHER INTERNAL TO CUSTOMER OR PAID BY CUSTOMER TO ANY THIRD PARTY, ARISING FROM OR RELATED TO THIS AGREEMENT OR m ITS PERFORMANCE OR BREACH, EVEN IF