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HomeMy WebLinkAboutPACKET FUSION, INC. (2)INSURANCE NOT ON FILE N-2023-134 WORD( MAY NOT PROCEED CITY CLERK DATE: JUN 2 q PACKET FUSION, INC. 2023 MASTER SERVICES AGREEMENT &.1Tt1r) (AV) This Master Services Agreement (the "Agreement" or "MSA") sets forth terms under which Packet Fusion, Inc., a (MI California corporation ("Company", "Contractor", "Licensor" "Managed Service Provider" or "PFI") shall provide services to CITY OF SANTA ANA, ("Customer"). This Agreement is effective as of the date of signing by both parties (the "Effective Date") and will remain in effect for all future orders or purchases of equipment, licenses, services, software, subscriptions, and support. Capitalized terms shall have the meanings defined in the Agreement. In consideration of the mutual promises and obligations in the Agreement, the sufficiency of which is hereby acknowledged, the parties agree as follows. 1. MAINTENANCE AND SUPPORT SERVICES 1.1. Support Services. The Customer may elect to have Company provide on -going Support Services for either their premise -based systems or their cloud -based solutions. 1.1.1. Premise Solutions. If Customer elects to engage Company for premise -based Support Services, the Company shall provide such Support Services as described more fully on one or more Support Services Addendums signed by Company and Customer which are incorporated herein by reference to this Agreement ("SSA" or "Support Services Addendum") as Exhibit A. 1.1.2. Cloud Solutions. If Customer elects to engage Company for cloud -based Support Services, the Company, in conjunction with the cloud service provider, shall provide Support Services more fully described on one or more Support Services Addendums signed by Company and Customer which are incorporated herein by reference to this Agreement. Such Addendums shall be included in Exhibit 1 of this Agreement. 1.2. Equipment, License and Software Purchases. Title to any equipment, license or software purchases shall pass to customer upon the date that the equipment, license or software is delivered to the Customer designated site, subject to the rights of PFI in the following paragraph. 1.3. Delivery and Installation. All risk of loss passes to Customer upon delivery of equipment to the installation site. The equipment delivery date shall be at a time to be mutually agreed upon by the parties. PFI will install the equipment. Customer will be responsible for a suitable place for installing the equipment, all electrical outlets, power hook-ups, related carpenter work as specified by PFI, and an equipment area acclimatized to computer requirements in terms of temperature. 1.4. Term, This Agreement shall continence on June 12, 2023 and end on June 11, 2024. 2. INVOICING AND PAYMENT 2.1. Unless otherwise stated in any SOW, product sale or services order, Customer will pay all invoices within forty-five (45) days of the date of the applicable invoice by check, ACH or wire transfer. All payments are non-refundable and PFI will charge an administrative fee for returned checks. 2.2. Fees and other amounts due shall be set forth in each product or services order or SOW C'Fees"). Unless otherwise stated in a product or services order, SOW or this Agreement: (a) all Fees quoted are payable in the currency set forth in the applicable order or SOW, and (b) Customer will be invoiced for the Fees as set forth in order or SOW. The total compensation paid to the Company under this Agreement shall not exceed $48,834.03, as identified in Company's Support Quote, attached hereto and incorporated herein by this reference as Exhibit B. 2.3. All Fees and quoted prices are exclusive of applicable regulatory charges and state and local taxes. All taxes that are the responsibility of Customer shall be paid by Customer. Company will invoice Customer for sales taxes and Customer agrees either to pay Company amounts covering such taxes (as determined by tax authorities) or to provide evidence necessary to sustain an exemption therefrom. PFI MSA Page 1 of 8 Rev, 4.30.2022 2.4. Customer will reimburse all pre -approved travel and other expenses incurred by Company in connection with the delivered services pursuant to this Agreement, any related Support Services Addendum or any applicable SOW. 2.5. If Customer in good faith disputes the amount of any invoice, Customer will timely pay the undisputed amount and will notify PFI in writing of the disputed amount no later than the date payment would otherwise be due, providing the reasons for the dispute. The parties will attempt in good faith to resolve the dispute within thirty (30) days after PFI's receipt of Customer's notice of dispute (the "Resolution Period"), during which time Customer's withholding of the disputed amount will not be considered a material breach of this Agreement. Upon resolution of the dispute, Customer will pay the resolved amount promptly but, in any case, within ten (10) days of mutual written agreement resolving the dispute. If the dispute is not resolved within the thirty -day (30) Resolution Period, then each party will be entitled to pursue all available remedies. 3. FEES 3.1. Support Services Pees. PFI shall invoice Customer for the Support Services Fees set forth in each support services order issued pursuant to the applicable Support Services Addendum. 3.1.1. Additional Work. When Customer requests services outside the scope of the applicable Support Services Addendum, Company will utilize its commercially reasonable best efforts to provide such services such as moves, adds or changes in a timely manner at the Company's time and materials rates ("T&M Rates"). Such work performed hereunder shall be invoiced upon completion. 3.1.2. Changes to Premise Confwuration. Changes in station quantities, port counts, equipment specifications, attachments or features may result in an adjustment of the Support Services original fee amount. Such adjustments will occur at the time of each renewal and will require notification sent from Company to Customer, at which time Customer may elect, in its sole discretion, to cancel the applicable SSA per Section 7.4 of this MSA. 3.2. Time & Materials Work. At Customer's request and pursuant to a written quote or work order, Company shall perform services and provide materials, subject to their availability, to complete such work request on a time and materials basis with payment due upon satisfactory completion. 3.3. Tangible and Intangible Product Fees. At Customer's request and pursuant to a written quote or sales order, Company shall provide equipment, licenses, software or software subscriptions, subject to their availability. Upon delivery to the Customer designated site, the Company will invoice and payment will be due for such invoice. 3.4. Professional Services Fees. Customer shall pay Company the amount set forth in each SOW or corresponding services order for any agreed upon Professional Services to include implementation services, installation services, system enhancement services or other requested services. Each Professional Service Fee may also cover hardware, software, licenses which are described in such SOW, sales quote or services order. 4. WARRANTIES; DISCLAIMERS 4.1. Company warrants that the (i) Professional Services and (ii) Maintenance and Support will be performed in a professional and workmanlike manner and in accordance with applicable requirements of the Master Services Agreement. 4.2. Customer's primary remedy for breach of the warranties set forth in the section shall be for the Company to re -perform non -conforming services or to correct errors. To the extent said errors or non -conformities cannot be corrected within a reasonable period of time, Customer's secondary remedies shall be governed by any and all consumer statutes or laws as provided under the Uniform Commercial Code, federal law, and/or state law. 4.3. Customer indemnifies and holds harmless Company for any claims, actions, expenses, losses, damages, or liabilities arising from allegations that the Equipment was used for illegal monitoring of calls or other illegal activities. PFI MSA Page 2 of 8 Rev. 4,30.2022 4.4. Company shall not be liable for any loss, cost, expense, or damages resulting from unauthorized calls made using the Equipment, or other fraudulent activities from Equipment, except where the unauthorized calls or other fraudulent activities are from or attributable to Company, its officers, employees, agents or representatives, including its subcontractors. 4.5. EXCEPT AS OTHERWISE PROVIDED FOR IN THIS MSA or SSA, COMPANY MAKES NO REPRESENTATIONS OR WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, WITH RESPECT TO THE EQUIPMENT, OR ITS CONDITION, PERFORMANCE, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR ANY OTHER MATTER. 4.6. EXCEPT AS EXPRESSLY PROVIDED IN THIS AGREEMENT, THE SERVICES ARE PROVIDED TO CUSTOMER ON AN "AS IS" `WHERE IS" AND "AS AVAILABLE" BASIS WITHOUT WARRANTY OF ANY KIND EITHER EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON -INFRINGEMENT. PACKET FUSION MAKES NO REPRESENTATIONS OR WARRANTIES THAT USE OF THE ANY CLOUD SERVICE WILL BE UNINTERRUPTED, TIMELY, COMPLETE, OR ERROR -FREE. The Company technology and third -party technology may be subject to limitations, delays, and other problems inherent in the use of the internet and electronic communications. Company is not responsible for any delays, delivery failures, or other damage resulting from such problems. 4.7. Where Company acts as a reseller of third -party technology, Company represents and warrants that any third -party technology provider has authorized Company to grant licenses or sublicenses to use their products, including but not limited to the third -party technology, for use in Company's performance of the solution and Customer's use in connection therewith. 5. LIMITATION OF LIABILITY 5.1. Neither party shall be liable for any special, indirect, incidental or consequential damages or for loss, damage, or expense directly or indirectly arising from customer's use of or inability to use the equipment either separately or in combination with other equipment, or for personal injury or loss or destruction of other property. 5.2. Customer and Company indemnifies and holds each party harmless for any claims, actions, expenses, losses, damages, or liabilities for any property damage or bodily injury (including death) arising in connection with this Agreement or the Support Services provided under this Agreement, except to the extent that any such property damage or bodily injury results from the negligence or willful misconduct of each party, its officers, employees, agents including subcontractor or for claims, damages or injuries by Company's employees covered under California's workers' compensation statutes. 5.3. IN NO EVENT SHALL EITHER PARTY OR ANY OF ITS RELATED PARTIES BE LIABLE TO THE OTHER PARTY OR ANY OF ITS RELATED PARTIES FOR ANY INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE DAMAGES OF ANY CHARACTER, CONSEQUENTIAL OR EXEMPLARY DAMAGES (INCLUDING LOSS OF BUSINESS OR GOOD WILL, WORK STOPPAGE, LOST PROFITS, REVENUE, DATA OR USE, COMPUTER FAILURE OR MALFUNCTION AND TELECOMMUNICATIONS CHARGES FROM UNAUTHORIZED ACCESS), COVER DAMAGES, OR OTHER SIMILAR DAMAGES REGARDLESS OF THE LEGAL THEORY ASSERTED, WHETHER IN CONTRACT, BREACH OF WARRANTY, TORT (INCLUDING NEGLIGENCE), PRODUCT LIABILITY, STRICT LIABILITY OR OTHERWISE, EVEN IF SUCH PARTY OR ANY OF ITS RELATED PARTIES (AND IN THE CASE OF MITEL, ITS LICENSORS OR SERVICE PROVIDERS) HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES AND EVEN IF AN AGREED REMEDY FAILS OF ITS ESSENTIAL PURPOSE OR IS HELD UNENFORCEABLE FOR ANY OTHER REASON. 5.4. THIS LIMITATION OF LIABILITY SHALL NOT OPERATE SO AS TO: (I) REDUCE ANY AMOUNTS DUE AS FEES; (II) LIMIT LIABILITY ARISING IN CONNECTION WITH INDEMNIFICATION OBLIGATIONS; OR (III) LIMIT LIABILITY FINALLY DETERMINED TO HAVE RESULTED FROM A PARTY'S GROSS NEGLIGENCE OR WILFULL MISCONDUCT, PH MSA Page 3 of 9 Rev. 4.30.2022 THIS SECTION WILL NOT APPLY TO DAMAGES THAT CANNOT BE LIMITED OR EXCLUDED BY LAW (IN WHICH EVENT THE LIMITATION WILL BE THE MINIMUM AMOUNT REQUIRED BY LAW). 6. GENERAL 6.1. Confidentiality. During the course of providing Support Services, Professional Services and other products or services hereunder, Company may have access to confidential and proprietary information and materials of Customer ("Confidential Information"). Confidential Information includes and is not limited to, information related to past, present or future research, development or business affairs, any proprietary products, software, materials or methodologies, trade secrets or any other information which provides Company with a competitive advantage. Confidential Information shall be used by Company only in conjunction with the provision or performance of Support Services and other services and products hereunder and shall not be disclosed to any third party. No rights or licenses under patents, trademarks or copyrights are granted or implied by any disclosure of Confidential Information. Upon Customer's request or completion or termination of this Agreement, Company shall return all Confidential Information to Customer. Company shall only disclose Customer Confidential Information to subcontractors, employees, officers, directors ar affiliates (collectively, "Affiliated Persons") who have a need to know such Customer Confidential Information in order to perform or provide the Support Services or other products or services for Customer related to Customer's systems, provided that such Affiliated Persons are subject to written confidentiality obligations with Company protecting Customer's Confidential Information. 6.2. Independent Contractors. Neither party is an employee, agent or representative of the other party. Neither party shall have any right, power, or authority to enter into any agreement for or on behalf of the other party, or to incur any obligation or liability or otherwise bind the other party. This agreement does not create an association, joint venture, or partnership between the parties nor imposes any partnership liability upon either party. 6.3. Termination. Company shall have the right to modify, reject, or terminate any SOW or SSA and any related work in process with thirty (30) days written notice to Customer. 6.4. Cancellation. Customer or Company may cancel this Agreement for any reason at any time upon providing the other Party thirty (30) days advance written notice of intent to terminate this Agreement. 6.5. Default. Upon and during a Customer Default as defined in this subsection, Company in its sole discretion may suspend Support Services and other services it provides under this Agreement, and/or bill for Support Services at then -applicable T&M Rates for such services performed, and/or suspend all credit and perform on a cash -only basis, and/or pursue any other legal or equitable remedies available. 6.5.1. A "Customer Default" includes: 6.5.1.1. Customer's failure to meet any undisputed payment obligation under this Agreement or any other agreement between Company and Customer, which failure continues for ten (10) business days after date of written notice of such failure, or 6.5.1.2. Customer's failure to perform any other material condition or material obligation under this Agreement or any other agreement between Company and Customer, which failure continues for forty-five (45) days after date of written notice specifying the nature of such failure and Customer then fails to continue to diligently cure such failure. If Company terminates this Agreement under this subsection, Customer shall be liable for any and all outstanding charges up to the date of termination. 6.6. Force Maieure. Neither party shall be liable or otherwise responsible for any nonperformance or delay in performance of any of obligations under this Agreement during any period in which performance is prevented or hindered by any Force Maj eure event, including by way of example but without limitation, lightning strike and any other acts of God, fire, flood and other severe catastrophic weather conditions, pandemic, war, embargo, union strikes, explosions or riots. 6.7. Cost of Collection. Customer shall be liable for any reasonable expenses incurred by Company in collecting any amount due under this Agreement and any Orders, or in enforcing any obligation under PH MSA Page 4 of 8 Rev. 4.30.2022 this Agreement or any Orders, including without limitation collection agency costs, reasonable attorney's fees, and court costs. 6.8. Insurance. Company shall procure and maintain for the duration of the contract insurance against claims for injuries to persons or damages to property which may arise from or in connection with the performance of the work hereunder and the results of that work by the Company, his agents, representatives, employees or subcontractors. Coverage shall be at least as broad as: Commercial General Liability (CGL): Insurance Services Office Form CG 00 01 covering CGL on an "occurrence" basis, including products and completed operations, property damage, bodily injury and personal & advertising injury with limits no less than $1,000,000 per occurrence. If a general aggregate limit applies, either the general aggregate limit shall apply separately to this project/location (ISO CG 25 03 or 25 04) or the generalaggregate limit shall be twice the required occurrence limit. Automobile Liability: ISO Form Number CA 00 01 covering any auto (Code 1), or if Company has no owned autos, hired, (Code 8) and non -owned autos (Code 9), with limitno less than $1,000,000 per accident for bodily injury and property damage. Not required if written verification that no vehicles will be used is provided. Workers' Compensation: as required by the State of California, with Statutory Limits, and Employer's Liability Insurance with limit of no less than $1,000,000 per accident for bodily injury or disease. Professional Liability (Errors and Omissions) Insurance appropriates to the Consultant'sprofession, with limit no less than $1,000,000 per occurrence or claim, $2,000,000 aggregate. If the Company maintains broader coverage and/or higher limits than the minimums shown above, the Customer requires and shall be entitled to the broader coverage and/or the higher limits maintained by the Company. Any available insurance proceeds in excess of the specified minimum limits of insurance and coverage shall be available to the Customer. Other Insurance Provisions The insurance policies are to contain, or be endorsed to contain, the following provisions: Additional Insured Status The Customer, its officers, officials, employees, and volunteers are to be covered as additional insureds on the CGL policy with respect to liability arising out of work or operations performed by or on behalf of the Company including materials, parts, or equipment furnished in connectionwith such work or operations. General liability coverage can be provided in the form of an endorsement to the Company's insurance (at least as broad as ISO Form CG 2010 1185 or if notavailable, through the addition of both CG 20 10, CG 20 26, CG 20 33, or CG 20 38; and CG 2037 if a later edition is used). Primary Coverage For any claims related to this contract, the Company's insurance coverage shall be primary coverage at least as broad as ISO CG 20 0104 13 as respects the Customer, its officers, officials, employees, and volunteers. Any insurance or self-insurance maintained by the Customer, its off`icers,officials, employees, or volunteers shall be excess of the Company's insurance and shall not contribute with it. Notice of Cancellation Each insurance policy required above shall provide that coverage shall not be canceled, except with notice to the Customer. Waiver of Subrogation Company hereby grants to Customer a waiver of any right to subrogation which any insurer of said Company may acquire against the Customer by virtue of the payment of any loss under such insurance. Company agrees to obtain any endorsement that may be necessary to affect this waiverof subrogation, but this provision applies regardless of whether or not the Customer has received a waiver of subrogation endorsement from the insurer. Self -Insured Retentions PH MSA Page 5 of 9 Rev. 4.30.2022 Self -insured retentions must be declared to and approved by the Customer. The Customer may require the Company to purchase coverage with a lower retention or provide proof of ability to pay losses and related investigations, claim administration, and defense expenses within the retention. The policy language shall provide, or be endorsed to provide, that the self -insured retention may be satisfied by either the named insured or Customer. Acceptability of Insurers Insurance is to be placed with insurers authorized to conduct business in the state with a current A.M. Best's rating of no less than A:VII, unless otherwise acceptable to the Customer. Claims Made Policies (note — should be applicable only to professional liability, see below) If any of the required policies provide claims -made coverage: • The Retroactive Date must be shown, and must be before the date of the contract or thebeginning of contract work. • Insurance must be maintained and evidence of insurance must be provided for at least five (5) years after completion of the contract of work. • If coverage is canceled or non -renewed, and not replaced with another claims -made policy form with a Retroactive Date prior to the contract effective date, the Companymust purchase "extended reporting" coverage for a minimum of five (5) years after completion of work. Verification of Coverage Company shall furnish the Customer with original Certificates of Insurance including all required amendatory endorsements (or copies of the applicable policy language effecting coverage requiredby this clause) and a copy of the Declarations and Endorsement Page of the CGL policy listing allpolicy endorsements to Customer before work begins. However, failure to obtain the required documents prior to the work beginning shall not waive the Company's obligation to provide them. The Customer reserves the right to require complete, certified copies of all required insurance policies, including endorsements required by these specifications, at any time. Subcontractors Company shall require and verify that all subcontractors maintain insurance meeting all the requirements stated herein, and Company shall ensure that Customer is an additional insured on insurance required from subcontractors. Special Risks or Circumstances Customer reserves the right to modify these requirements, including limits, based on the nature of therisk, prior experience, insurer, coverage, or other special circumstances. 6.9. Assignment and Subcontracting. This Agreement, including any order entered into hereunder, is assignable by either party with the other party's prior written consent, which consent shall not be unreasonably withheld. Either party may assign this Agreement and orders entered hereunder, in whole or in part, to an affiliate, subsidiary, joint venture, or third party into which said party is merged or which acquires substantially all of a parry's assets or control of said party. Company may freely subcontract any or all of the work hereunder, provided that Company shall retain responsibility for the work subcontracted. 6.10. Notices; Party Representatives. All notices, demands or other writings to be made, given or sent hereunder or which may be so given or made or sent by Customer or Company to the other shall be deemed to have been given in writing and personally delivered or if mailed on the third (31a) day after being deposited in the United States mail, certified or registered, postage prepaid, and addressed to the respective Parties at the following addresses: If to Company: Packet Fusion, Inc. 4301 Hacienda Drive, Suite 400 PH MSA Page 6 of 8 Rev. 4.30.2022 Pleasanton, CA. 94588 ATTN: Legal If to Customer: Jennifer L. Hall City Clerk City of Santa Ana 20 Civic Center Plaza (M-30) P.O. Box 1988 Santa Ana, CA 92702-1988 Fax: 714- 647-6956 With courtesy copies to: Jack Ciulla Chief Technology Innovations Officer Information Technologies Department City of Santa Ana 20 Civic Center Plaza P.O. Box 1988 6.11. Authority. Each individual executing this Agreement on behalf of a corporation, nonprofit corporation, partnership or other entity or organization, represents and warrants that he or she is duly authorized to execute and deliver this Agreement on behalf of such entity or organization and that this Agreement is binding upon the same in accordance with its terms. 6.12. Disputes. Any controversy, dispute or claim arising out of, or relating to, the interpretation of this Agreement shall be fist subject to a thirty (30) day negotiation period between the parties in which each party shall disclose to the other all non -confidential documents, facts, statements and any other relevant information which may have any bearing on this dispute. 6.13. Governing Law; Entire, Agreement. This Agreement, will be governed by the laws of the state of the State of California, constitutes the entire Agreement between the parties and supersedes all prior oral and written proposals and communications. This Agreement takes precedence over the language of any implementing Customer purchase order or similar document. No modification to this Agreement is effective unless in writing and signed by both parties. 6.14. Severability. If any provision of this Agreement is found to be illegal or unenforceable, then such provision shall be modified to the minimum extent necessary, in conformance with the intention of the parties, to cure such invalidity or unenforceability, and the remaining provisions shall continue in full force and effect. 6.15. Counterparts. This Agreement may be executed in any number of counterparts, each of which will be deemed an original, but all of which together will constitute one and the same instrument. Signatures of parties on copies transmitted by facsimile or electronic signature shall be considered as signed original documents. 6.16. Construction; Section Headings. The parties agree that this Agreement shall be fairly interpreted in accordance with its terms without any strict construction in favor or against either party, and that any ambiguity shall not be interpreted against the drafting party. The section headings in this Agreement have been inserted merely for convenience, are not a part of this Agreement, and shall not affect the rights and obligations of the parties or the meaning of the Ianguage in this Agreement. 6.17. Survival. Sections 4-6 shall survive the expiration or termination of this Agreement PH MSA Page 7 of 8 Rev. 4.30.2022 N-2023-134 IN WITNESS WHEREOF, the parties hereto have executed this Agreement on June 12, 2023. APPROVED AS TO FORM: SONIA R. CARVALHO City Attorney By: ATHAN T. MART Assistant City Attorney RECOMMENDED FOR APPROVAL: �7�_rlr C:rr�la JTck Ci�lla [H aY>3.2G23.—POT) JACK CIULLA Chief Technology Innovations Officer CITY OF SANTA ANA -5;�- k �L- YJUSTINE RIDGE City Manager PACKET FUSION, INC. Y. rnodd Aeterr W_ Todd Peterson (May 24,202310:31 COT) Name: TODD PETERSON Title: President PR MSA Page 8 of 8 Rev. 4.30.2022 Exhibit A SUPPORT SERVICES ADDENDUM - MITEL PREMISE This Support Services Addendum or SSA is hereby entered into pursuant to the Master Services Agreement by and between Packet Fusion, Inc., and CITY OF SANTA ANA. This SSA will encompass the Support Services to be provided along with each party's performance obligations for such Support Services. I. SRAAort Services General. A. Customer designates Company as its sole and exclusive service agent for Support Services for the covered equipment and software ("Equipment" or "Software"), including any improved features and models of such product purchased from Company and listed in Exhibit A of each Support Quote and related renewal term. B. Support Services will be performed for the Equipment and Software at the locations ("Customer Locations") designated in Exhibit B of each Support Quote and related renewal term. C. Attached Appendixes i. Appendix A, "Outages Classifications" 11. Support Offering, A. Support Services shall be provided upon request by Customer to restore malfunctioning Equipment and/or Software to proper working order. B. Standard hours of coverage are 7:00 a.m. to 5:00 p.m. PST with after hours on call services to be provided for emergency issues 24 hours a day, 7 days a week and 365 days a year. C. Priority response to Customer requests for support and/or other service work. D. Includes remote labor for one (1) voluntary system upgrade per year. i. If an upgrade is required due to a system service affecting situation, no labor is charged for the upgrade and such upgrade does not count towards the one (1) included voluntary upgrade. ii. If an upgrade requires on -site assistance due to system service affecting problems that resulted from an upgrade, there is no charge for on -site labor. E. Includes Customer preferred labor rates defined in Exhibit C of each Support Quote. i. Preferred Hourly Time and Material Billing Rates cover labor which falls outside the scope of Support Services set forth in Sections II A. and D. of this Addendum, Out of scope Support Services include but are not limited to moves, adds, and changes ("MAC"), system Software upgrades other than the annual upgrade, server migrations and non -system software upgrades. ii. Non-support related services which are 30 minutes or less in duration shall not be billed. F. Proactive Full -Time Monitoring i. Proactive monitoring (Kaseya) will be provided at Customer's request by Company on a 24/7/365 basis. ii. All alarms from the Mitel communication system will be sent to our Network Operations Center (NOC) and treated in the following manner: 1. Company will attempt to fix the problem remotely and then notify Customer of the outcome. 2. If the problem is not resolved remotely, Customer will be notified in order for Company and Customer mutually agreeing to dispatch an engineer to Customer site to work to resolve the problem. G. With respect to response times for all Equipment and Software outages (defined in Appendix A, "Service Outage Classifications"), Company will use its best efforts to respond to Customer request for service within the response times set forth in Appendix A. Response time is based on time of receipt of Customer's acknowledged request for service. H. With respect to on -site response times for Service Outages classified as a Priority P 1 failure as defined in Appendix A, Company's policy is to respond, if needed, on -site to Customer's request for service within 4 hours of receipt of Customer's telephone request for service. Note, any on -site labor performed for major malfunctions is covered in this agreement and provided free of charge to the Customer. III. Services Excluded by this Support Addendum. Support does not include any labor or material costs for or necessitated by any of the following: A. Items not explicitly listed in Exhibit A — Schedule of Equipment & Software of the Support Quote are specifically excluded from maintenance and support services. B. Support Services do not include support for hardware, equipment or third -party software and do not include support for issues arising from use of PFI's Software in combination with hardware, equipment or third -party software not certified by PFI or the manufacturer for use with Customer's Software. C. Labor and material costs of any moves, additions, changes, and removals of or to the Equipment and Software. D. Negligent or willful acts of Customer or any third party. PF[ SSA Page t oF4 Rev, 4,30,2022 E. Accidents or casualty including without limitation fire, lightning, flood, earthquake, acts of God, war, riot, natural disaster damage, neglect, misuse, or any other use outside the manner described in the Equipment and Software specifications and/or specified in writing by Company. F. An act or event occurring external to the Equipment or Software which directly or indirectly causes a failure or malfunction in the Equipment or Software, including without limitation, failures or malfunctions of trunk lines or toll lines, cables, or other equipment connecting the Equipment to the telecommunications system of the operating telephone utility, abnormal environmental conditions (e.g. water inundation), or power fluctuations or failures which adversely affect the Equipment. G. Repair, maintenance, or increase in normal service time resulting from Customer's failure to provide a commercially reasonable Equipment environment as required in the Equipment specifications, or any other failure of Customer to fully perform its responsibilities under this S SA. H. Any other acts or events that may adversely affect the Equipment or Software's performance, occasioned by acts of Customer or any third party, or a third parry's use of the Equipment in combination with any other apparatus, device, or other system not supplied or approved for such use by Company. I. Any other service not required to keep the equipment in good operating condition for normal use including administrator, operator, and station user training. J. Diagnosing Customer's Telecommunication services/ WAN / LAN / VPN in conjunction with phone system outages including individual Remote VOIP Phones. IV. Conditions. A. Company's Responsibility: Company's responsibility with respect to the Support Services shall be limited to either (i) Customer's side of interconnect devices connecting the Equipment to the telephone system operated by the local telephone utility, or (ii) if no such interconnect devices exist, Customer's side of the point of connection between the Equipment and said local telephone system. B. Remote Access: Customer will enable PFI to access Customer's Software remotely via Internet connection for support purposes by providing an Internet connection and assisting PFI with remote connection as reasonably requested by PFI. C. Customer Contacts: Customer will designate at least one contact person per Customer work -shift and a backup in his or her absence (each a "Customer Contact"). Customer will identify the Customer Contacts to PFI upon execution of this Agreement and will notify PFI immediately of any change in the Customer Contacts. The Customer Contacts will request support and report all performance problems relating to Customer's equipment or software to PFI online, by telephone, or via e-mail. The Customer Contacts will act as a single point of contact between Customer and PFI with respect to all Support Services communications. The Support Services may be delayed or not available if the Customer Contacts do not assist PFI as reasonably requested or if PFI performance is otherwise delayed or prevented by Customer. D. Equipment and Software: Equipment and Software covered by this SSA shall be in good and maintainable operating condition as of the commencement date. Equipment (other than equipment newly purchased from the Company), is subject to commercially reasonable inspection by the Company in order to determine that such Equipment is in good and maintainable operating condition. Work determined necessary to bring such Equipment into good and maintainable condition must be completed prior to commencement of Support Services. T&M Work performed to upgrade the Equipment and Software into good and maintainable condition may be invoiced separately. At Customer's sole election, the Company shall perform any such necessary work at prevailing Company's T&M Rates. E. Documentation and Record Access: All relevant documentation and records needed to perform the Support Services on the Equipment, which may include information relating to the equipment, cable plant and relevant software shall be made available to Company for inspection prior to the commencement of Support Services. Work determined to be necessary to bring such records into good and usable condition must be completed prior to the commencement of Support Services under this SSA. At Customer's sole election, the Company shall perform any such necessary work at the prevailing Company's T&M Rates. F. Physical Access: Customer shall ensure that Company personnel have reasonable and immediate access to the equipment upon the arrival by Company personnel at Customer's site provided Company has provided Customer with sufficient advance written notice of start time, arrival time and completion times. Company will provide Customer with designated points of contact and make all arrangements for its support personnel to receive such notification. Customer shall make available to Company, at no charge, the use of any Customer owned/controlled Equipment, attachments, or features which are not covered under this SSA, but which are necessary for the performance of Support Services on the Equipment covered by this SSA. G. Unauthorized Work: Other than qualified employees of Customer, any Support Services performed on the Equipment by others without Company's written consent, may entitle Company to increase the charges for the Support Services hereunder to adjust for any increased costs resulting therefrom. In addition, if as a result, further PFI SSA Page 2 of 4 Rev, 4.30.2022 repairs are required by Company to restore the Equipment to good and maintainable operating conditions, such repairs will he billed at Company's `F&M Rates. H. Security and Data: Customer is solely responsible for instituting and maintaining security safeguards to protect Customer's systems and data. 1. Toll Fraud: Company will strictly adhere to the manufacturer's specifications to secure the Equipment to prevent toll fraud. In no way is the Company liable for any toll fraud that may occur. Initialed and Acknowledged: Initialed and Acknowledged: Packet Fusion, Inc. CITY OF SANTA ANA (Company) (Customer) PH SSA Page 3 of 4 Rev. 4.30.2022 Appendix A Service Outage Classifications Target Priority Definition Response Time Resolution Time Emergency issue impacting an entire site or customer's business is severely affected. P1 • System Down Immediate 1 Hour Loss of Voice Mail (Within 15 Mins ) • Call Processing has ceased *RCA Documented and shared upon request. Urgent issue impacting peripheral application or an escalated service or call quality issue impacting an individual person. P2 • Loss of call capability of 25% or more 4 Hours 2 • System degradation of 25% or more business days • Less than 25% system outage *RCA documented and shared upon request. Standard issues not impacting the ability to make or receive phone calls. • Intermittent call quality issues 1 P3 • Static on lines 24 Hours business week * Peripheral Applications - Equipment Malfunctioning • All other issues not covered in P1/2 . PFI SSA Page 4 of 4 Rev. 4.30.2022 Exhibit B PACKETFUSION Connecting the Dots to the Cloud" SUPPORT QUOTE CITY OF SANTA ANA 20 CIVIC CENTER PLAZA I SANTA ANA, CA 92701 This Support Quote is based on the hardware and software configuration set forth in Exhibit B — Schedule of Equipment ("Equipment"), including any improved features and models of such equipment purchased from Packet Fusion during any support term for all locations set forth in Exhibit C — Customer Locations. Hourly Time and Material Billing Rates ("T&M Rates") for the support Term are set forth in Exhibit A of this Support Quote. III. Length of Support (Term' Quote Number: QUO-03089-M6X7H6 SOURCEWELL CONTRACT NUMBER: 4022719-MBS Effective Start Date: 12 June 2023 Support - No With Optional Term Length initials Phone Coverage initials Phone Coverage Discount End Date 1 Year Term $ 48,834.03 $ 87,780.50 11 June 2024 Amount selected will be due in full upon invoicing by Packet Fusion I acknowledge that I have reviewed and selected the appropriate support type and term above. Quote Expires: 11 June 2023 IMPORTANT: A4eF tke renewal date, if ° 0 Customer Purchase Orders referencing the Quote * and Contract Amount are acceptable in lieu of a Customer Signature. Make checks payable to Packet Fusion, Inc., PO Box 888055, Los Angeles, CA 90088-8055 Page 1 of 3 VCe S,r,n 100 2f)Vni Accepted: CITY OF SANTA ANA Name: Date: Title: PO Number: Page 2 of 3 Version 20220501 Exhibit A Hourly Time and Material Biding Rates ("T&M Rates") Hourly Rates Non -Support Customers Support Customer within California Support Customers outside California Overtime Hourly Rates Non -Support Customers Support Customer within California Support Customers outside California $195.00 an hour $145.00 an hour $195.00 an hour $292.50 an hour $217.50 an hour $292.50 an hour Page 3of3 Version 20220501 Exhibit B CrhPA111P of FnninmPnt 9, Cnfttvare ("Fnn inmPnt" nr 6°. �nf wAre") Product QTY Product QTY Primary Support without Phone Coverage will include: If optional Phone Coverage is selected, the following will also be covered: DIST VOICE SVCS SVR 2 BUTTON BOX, BB424 12 Extension & Mailbox license BDL 798 IP PHONE, IP420g 185 Extension Only license BDL 71 1P PHONE, IP48OG 1185 LICENSE BUNDLE, ESSENTIALS ONSITE 727 1P PHONE, IP485G 91 LICENSE BUNDLE, ESSENTIALS ONSITE UPGRADE TO ADVANCED 14 1P PHONE, IP655 W/ANTIGLARE 7 LICENSE BUNDLE, ESSENTIALS ONSITE v2 400 IP930D DECT Phone Starter Kit US CA MX 8 LICENSE BUNDLE, VIRTUAL SIP TRUNK QTY 50 2 LICENSE, ADDITIONAL SITE 3 LICENSE, COURTESY ONSITE 446 LICENSE, MAILBOX ONLY 1505 LICENSE, REMOTE PHONE FOR EDGE GATEWAY 14 LICENSE, SIP DEVICE 18 License, SIP trunk (ST/SG Voice Switch) 38 LICENSE, SMDI MAILBOX FOR LEGACY PBX INTEGRATION 1505 LICENSE, TELEPHONY ONSITE 71 LICENSE, VIRTUAL SIP TRUNK QTY 1 12 LICENSE, VIRTUAL SIP TRUNK QTY 1 BDL 100 Mitel Voice Switch ST11) 1 Mitel Voice Switch ST48A 3 VOICE SWITCH, SGT1K MADE IN USA 1 Voice Switch, ST100DA 7 Voice Switch, ST1D 1 Voice Switch, ST200 1 Voice Switch, ST500 2 Voice Switch, ST50A 1 Additional Support Items Phybridge Support 3 Shadow CMS Enterprise Annual Maintenance 1 Shadow CMS Site Extended Annual Maintenance 1 Unless included above, support is excluded for: Ingate Support 3 Network Equipment Servers Carrier Services EXHIBIT C Customer Locations ("Locations") 20 CIVIC CENTER PLAZA, SANTA ANA, CA 92701 _.._._ .......... Version: 20220430 Page 1 of 1 CITY OF SANTA ANA PFI Master Services Agree ment_Approved changes —MT 5.15.23- CAO signed Final Audit Report 2023-05-24 Created: 2023-05-23 By: MELANIE TORRES (MTorres@santa-ana.org) Status: Signed Transaction ID: CBJCHSCAABAAPHoOaMtmRomP14U5CE5MGzRDjFdmNTbY "CITY OF SANTA ANA_PFI Master Services Agreement_Approv ed changes —MT 5.15.23-CAO signed" History Q Document created by MELANIE TORRES (MTorres@santa-ana.org) 2023-05-23 - 3:42:54 PM GMT- IP address: 98.153,69.210 P+ Document emai[ed to jciulla@santa-ana.org for signature 2023-05-23 - 3:43:43 PM GMT Email viewed by jciulla@santa-ana.org 2023-05-23 - 4:53:30 PM GMT- IP address: 98.153.69.210 6o Signer jciulla@santa-ana.org entered name at signing as Jack Ciulla 2023-05-23 - 4:53:52 PM GMT- IP address: 98.153.69.210 bo Document e-signed by Jack Ciulla (jciulla@santa-ana.org) Signature Date: 2023-05-23 - 4:53:54 PM GMT - Time Source: server- IP address: 98.153.69.210 E7� Document ema[led to tpeterson@packetfusion.com for signature 2023-05-23 - 4:53:55 PM GMT Email viewed by tpeterson@packetfusion.com 2023-05-24 - 3:30:42 PM GMT- IP address: 104.47.55.254 6o Signer tpeterson@packetfusion.com entered name at signing as W. Todd Peterson 2023-05-24 - 3:31:29 PM GMT- IP address: 72.183,25.99 &o Document e-signed by W. Todd Peterson (tpeterson@packetfusion.com) Signature Date: 2023-05-24 - 3:31:31 PM GMT -Time Source: server- IP address: 72.183.25.99 a Adobe Acrobat Sign V Agreement completed. 2023-05-24 - 3:31:31 PM GMT a Adobe Acrobat Sign