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HomeMy WebLinkAbout25E - AGMT - MAINTENANCE STADIUM MARQUEE AND SCOREBOARDREQUEST FOR COUNCIL ACTION CITY COUNCIL MEETING DATE: DECEMBER 3, 2012 TITLE: AGREEMENT WITH DAKTRONICS, INC. FOR MAINTENANCE OF THE SANTA ANA STADIUM SCOREBOARD AND MARQUEE f0jCITY MANAGER RECOMMENDED ACTION CLERK OF COUNCIL USE ONLY: APPROVED ? As Recommended ? As Amended ? Ordinance on 1st Reading ? Ordinance on 2"d Reading ? Implementing Resolution ? Set Public Hearing For CONTINUED TO FILE NUMBER Authorize the City Manager and Clerk of the Council to execute the attached agreement with Daktronics, Inc. for the maintenance of the Santa Ana Stadium scoreboard and marquee, for a five year period in the amount of $31,590, subject to non-substantive changes approved by the City Manager and City Attorney. DISCUSSION In September 2006, the City of Santa Ana and Daktronics Inc. entered into a five-year agreement for service of new scoreboard and marquee equipment at the Santa Ana Stadium. The equipment includes a multi-sport scoreboard, one 8'8"x11' ProStar display, one 2'11"x25' Galaxy RGB display, and one 4`9"x12' GalaxyPro marquee at the corner of Flower Street and Civic Center Drive. This equipment has significantly enhanced the spectator experience at the Stadium. Daktronics has performed well during the first five years of on-call site services and maintenance, and repairs has been very satisfactory. Daktronics staff is very responsive, professional, and knowledgeable of the equipment. This agreement is for a five-year period in the amount of $26,590. A $5,000 contingency will be added to the agreement for training, for a total not to exceed agreement amount of $31,590. FISCAL IMPACT Funds for this agreement are available in the PRCSA Administrative Services Other Contract Services account (no. 01113200 62300). Gerardo Mouet Executive Director Parks, Recreation and Community Services Agency APPROVED AS TO FUNDS AND ACCOUNTS: 4 Nw\'k n' C' Francisco Gutierrez Executive Director Finance & Management Services Agency 25E-1 25E-2 MAINTENANCE AGREEMENT THIS AGREEMENT, made and entered into this 3rd day of December, 2012 by and between Daktronics, Inc., (hereinafter "Contractor"), and the City of Santa Ana (hereinafter "city"). RECITALS A. Pursuant to Agreement A-2006-255, dated September 6, 2006, Contractor installed and has maintained an electronic scoreboard/marquee at the Santa Ana Stadium. B. The City desires to retain Contractor to continue to maintain the scoreboard/marquee. C. Contractor represents that it is able and willing to provide such services to the City. D. In undertaking the performance of this Agreement, Contractor represents that it is knowledgeable in its field and that any services performed by Contractor under this Agreement will be performed in compliance with such standards as may reasonably be expected from a professional contractor in the field. NOW THEREFORE, in consideration of the mutual and respective promises, and subject to the terms and conditions hereinafter set forth, the parties agree as follows: 1. SCOPE OF SERVICES Contractor shall provide maintenance and repair services for the marquee/scoreboard at the Santa Ana Stadium, as set forth in Exhibit A, attached hereto and incorporated by this reference. 2. COMPENSATION a. City agrees to pay, and Contractor agrees to accept as total payment for its services, the rates and charges identified in Exhibit A, attached hereto and incorporated by reference. The total sum to be expended under this agreement shall not exceed $26,590 plus a $5,000 contingency for training. The total amount to be expended under this Agreement shall not exceed $31,590. b. Payment by City shall be made within thirty (30) days following execution of this Agreement. 3. TERM This Agreement shall commence on the date first written above and terminate on August 31, 2017, unless earlier terminated as set forth in Section 11 below. 4. INDEPENDENT CONTRACTOR Contractor shall, during the entire term of this Agreement, be construed to be an independent contractor and not an employee of the City. This Agreement is not intended nor shall it be construed to create an employer-employee relationship, a joint venture relationship, or to allow the City to exercise discretion or control over the professional manner in which Contractor performs the services which are the subject matter of this Agreement; however, the services to be provided by Contractor shall be provided in a manner consistent with all applicable standards and regulations governing such services. Contractor shall pay all Proposal Date: 29 February 2012; Revised: 19 September 2012 Order No. E13750-1 Copyright © Daktronics, Inc. DF-2939 Rev113011 25E-:r e 1 of 12 salaries and wages, employer's social security taxes, unemployment insurance and similar taxes relating to employees and shall be responsible for all applicable withholding taxes. 5. INSURANCE Prior to undertaking performance of work under this Agreement, Contractor shall maintain and shall require its subcontractors, if any, to obtain and maintain insurance as described below: a. Commercial General Liability Insurance. Contractor shall maintain commercial general liability insurance naming the City, its officers, employees, agents, volunteers and representatives as additional insured(s) and shall include, but not be limited to protection against claims arising from bodily and personal injury, including death resulting therefrom and damage to property, resulting from any act or occurrence arising out of Contractor's operations in the performance of this Agreement, including, without limitation, acts involving vehicles. The amounts of insurance shall be not less than the following: single limit coverage applying to bodily and personal injury, including death resulting therefrom, and property damage, in the total amount of $1,000,000 per occurrence. Contractor shall supply City with a fully executed additional insured endorsement which shall (a) name the City of Santa Ana, its officers, employees, agents, volunteers and representatives as additional insured(s); (b) be primary and not contributory with respect to insurance or self-insurance programs maintained by the City; and (c) contain standard separation of insureds provisions b. Business automobile liability insurance, or equivalent form, with a combined single limit of not less than $1,000,000 per occurrence. Such insurance shall include coverage for owned, hired and non-owned automobiles. c. Worker's Compensation Insurance. In accordance with the provisions of Section 3700 of the Labor Code, Contractor, if it has any employees, is required to be insured against liability for worker's compensation or to undertake self-insurance. Prior to commencing the performance of the work under this Agreement, Contractor agrees to obtain and maintain any employer's liability insurance with limits not less than $1,000,000 per accident. d. The following requirements apply to the insurance to be provided by Contractor pursuant to this section: (i) Contractor shall maintain all insurance required above in full force and effect for the entire period covered by this Agreement. (ii) Certificates of insurance shall be furnished to the City upon execution of this Agreement and shall be approved in form by the City Attorney. (iii) Certificates and policies shall state that the policies shall not be canceled or reduced in coverage or changed in any other material aspect without thirty (30) days prior written notice to the City. 6. INDEMNIFICATION Contractor agrees to and shall indemnify and hold harmless the City, its officers, agents, employees, consultants, special counsel, and representatives from liability: (1) for personal injury, damages, just compensation, restitution, judicial or equitable relief arising out of claims for personal injury, including death, and claims for property damage, which may arise from the direct or indirect operations of the Contractor or its subcontractors, agents, employees, or other persons acting on their behalf which relates to the services described in section 1 of this Agreement. Proposal Date: 29 February 2012; Revised: 19 September 2012 Order No. E13750-1 Copyright 0 Daktronics, Inc. DF-2939 Rev113011 25E _P4e 2 of 12 7. CONFLICT OF INTEREST CLAUSE Contractor covenants that it presently has no interests and shall not have interests, direct or indirect, which would conflict in any manner with performance of services specified under this Agreement. 8. NOTICE Any notice, tender, demand, delivery, or other communication pursuant to this Agreement shall be in writing and shall be deemed to be properly given if delivered in person or mailed by first class or certified mail, postage prepaid, or sent by telefacsimile or other telegraphic communication in the manner provided in this Section, to the following persons: To City: Clerk of the City Council 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 copy to: Parks, Recreation and Community Services Agency City of Santa Ana 26 Civic Center Plaza Santa Ana, California 92702 Fax 714- 571-4211 To Contractor: Daktronics, Inc. 201 Daktronics Drive BROOKINGS, SD 57006 Phone: 800-325-8766 Daktronics Contact: Teresa Brown A party may change its address by giving notice in writing to the other party. Thereafter, any communication shall be addressed and transmitted to the new address. If sent by mail, communication shall be effective or deemed to have been given three (3) days after it has been deposited in the United States mail, duly registered or certified, with postage prepaid, and addressed as set forth above. If sent by telefacsimile, communication shall be effective or deemed to have been given twenty-four (24) hours after the time set forth on the transmission report issued by the transmitting facsimile machine, addressed as set forth above. For purposes of calculating these time frames, weekends, federal, state, County or City holidays shall be excluded. 9. EXCLUSIVITY AND AMENDMENT This Agreement represents the complete and exclusive statement between the City and Contractor, and supersedes any and all other agreements, oral or written, between the parties. In the event of a conflict between the terms of this Agreement and any attachments hereto, the terms of this Agreement shall prevail. This Agreement may not be modified except by written instrument signed by the City and by an authorized representative of Contractor. The parties agree that any terms or conditions of any purchase order or other instrument that are inconsistent with, or in addition to, the terms and conditions hereof, shall not bind or obligate Proposal Date: 29 February 2012; Revised: 19 September 2012 Order No. E13750-1 Copyright © Daktronics, Inc. DF-2939 Rev113011 25E-5r e 3 of 12 Contractor nor the City. Each party to this Agreement acknowledges that no representations, inducements, promises or agreements, orally or otherwise, have been made by any party, or anyone acting on behalf of any party, which are not embodied herein. 10. ASSIGNMENT Inasmuch as this Agreement is intended to secure the specialized services of Contractor, Contractor may not assign, transfer, delegate, or subcontract any interest herein without the prior written consent of the City and any such assignment, transfer, delegation or subcontract without the City's prior written consent shall be considered null and void. Nothing in this Agreement shall be construed to limit the City's ability to have any of the services which are the subject to this Agreement performed by City personnel or by other consultants retained by City. 11. TERMINATION This Agreement may be terminated by the City upon thirty (30) days written notice of termination. In such event, Contractor shall be entitled to receive and the City shall pay Contractor compensation for all services performed by Contractor prior to receipt of such notice of termination, subject to the following conditions: a. As a condition of such payment, the Executive Director may require Contractor to deliver to the City all work product completed as of such date, and in such case such work product shall be the property of the City unless prohibited by law, and Contractor consents to the City's use thereof for such purposes as the City deems appropriate b. Payment need not be made for work which fails to meet the standard of performance specified in the Recitals of this Agreement. 12. DISCRIMINATION Contractor shall not discriminate because of race, color, creed, religion, sex, marital status, sexual orientation, age, national origin, ancestry, or disability, as defined and prohibited by applicable law, in the recruitment, selection, training, utilization, promotion, termination or other employment related activities. Contractor affirms that it is an equal opportunity employer and shall comply with all applicable federal, state and local laws and regulations. 13. JURISDICTION - VENUE This Agreement has been executed and delivered in the State of California and the validity, interpretation, performance, and enforcement of any of the clauses of this Agreement shall be determined and governed by the laws of the State of California. Both parties further agree that Orange County, California, shall be the venue for any action or proceeding that may be brought or arise out of, in connection with or by reason of this Agreement. 14. PROFESSIONAL LICENSES Contractor shall, throughout the term of this Agreement, maintain all necessary licenses, permits, approvals, waivers, and exemptions necessary for the provision of the services hereunder and required by the laws and regulations of the United States, the State of California, the City of Santa Ana and all other governmental agencies. Contractor shall notify the City immediately and in writing of its inability to obtain or maintain such permits, licenses, approvals, waivers, and exemptions. Said inability shall be cause for termination of this Agreement. Proposal Date: 29 February 2012; Revised: 19 September 2012 Order No. E13750-1 Copyright © Daktronics, Inc. DF-2939 Rev113011 25E R 4 of 12 15. MISCELLANEOUS PROVISIONS a. Each undersigned represents and warrants that its signature hereinbelow has the power, authority and right to bind their respective parties to each of the terms of this Agreement, and shall indemnify City fully, including reasonable costs and attorney's fees, for any injuries or damages to City in the event that such authority or power is not, in fact, held by the signatory or is withdrawn. b. All Exhibits referenced herein and attached hereto shall be incorporated as if fully set forth in the body of this Agreement. IN WITNESS WHEREOF, the parties hereto have executed this Agreement the date and year first above written. ATTEST: MARIA D. HUIZAR Clerk of the Council APPROVED AS TO FORM: SONIA R. CARVALHO City Attorney By: Laura Sheedy Assistant City Attorney CITY OF SANTA ANA PAUL M. WALTERS City Manager RECOMMENDED FOR APPROVAL: CONTRACTOR GERARDO MOUET Executive Director -PRCSA Proposal Date: 29 February 2012; Revised: 19 September 2012 Order No. E13750-1 Copyright © Daktronics, Inc. DF-2939 Rev113011 (NAME) (Title) 25E-7e5of12 EXHIBIT A EXTENDED SERVICE AGREEMENT Revised DAKTRONICS. INC. ("Daktronics") 201 Daktronics Drive BROOKINGS, SD 57006 Phone: 800-325-8766 Daktronics Contact: Teresa Brown Purchaser: City of Santa Ana Address: 20 Civic Center Plaza PO Box 1988 City, State, Zip: Santa Ana, CA 92702-1988 Province/Country: United States Phone: 714-571-4252 Fax: Contact: Hiram Uribe Email: huribe@santa-ana.org For Internal Use Only Bill to Loc #: Bill to :.......................................................................... Customer ID: 155374 Loc: 001 Pipeline No.: 443096 Purchaser hereby agrees to purchase the services, peripherals and additional supplies (collectively, the "Services"), subject to this Extended Service Agreement, the Terms and Conditions of Extended Service, and any and all applicable Attachments (collectively, the "Agreement" or the "Contract Documents"), which documents Purchaser has reviewed and agrees to accept. Term (Duration) of the Agreement: Commencement Date: 18 August 2012 Expiration Date: See Attachment B Order No.: E13750-1 Original Job No.: C13750 End user: Santa Ana Stadium Santa Ana, CA Customer ID: 155374 Loc: 002 Description of Services Provided: Price: See Attachment A Enhanced Services See Attachment B Equipment List See Attachment A Exceptions: Identification/advertising panels are excluded. Payment Terms: Due before commencement Proposal Date: 29 February 2012; Revised: 19 September 2012 Order No. E13750-1 Copyright © Daktronics, Inc. DF-2939 Rev113011 25E ?F?e 6 of 12 All notices required herein shall be given to Purchaser at the address indicated above on this Agreement unless otherwise specified below: Notice / Communication Address: Address: 26 Civic Center Plaza City, State, Zip: Santa Ana, CA 92702 Province/Country: USA Phone: 714-571-4218 Cell: Fax: 714-571-4211 Attention: Robert Carroll Email: rcarroll@santa-ana.ore All invoices will be forwarded to Purchaser at the address indicated on page one (1) of this Agreement unless otherwise specified below: Billing Address: Purchaser hereby confirms that the Services are to be delivered at the address indicated on page one (1) of this Agreement unless otherwise specified below: Site Address: Company: City of Santa Ana Company: Santa Ana Stadium Address: 26 Civic Center Plaza Address: 602 N Flower St City, State, Zip: Santa Ana, CA 92703 City, State, Zip: Santa Ana. CA 92702 Province/Country: United States Province/Country: USA Phone: Fax: Phone: 714-571-4252 Fax: 714-5714211 Contact: Contact: Hiram Uribe Email: E-mail: huribe@santa-ana.ore ACCEPTANCE: In witness hereof, the parties hereto have executed this agreement by and through their duly authorized officers. PURCHASER: City of Santa Ana, Parks, Recreation and Community Services Agency By: Signature DAKTRONICS, INC. By: Signature N-ame/Title: Gerardo Mouet, Executive Director Date: Print or Type Name/Title: Print or Type Date: This form is an important part of your coverage. Please sign and return the entire agreement to Daktronics, Inc. Once the signed agreement is entered into our system, you will receive a copy for your records. Offer expires 60 days from proposal date. Proposal Date: 29 February 2012; Revised: 19 September 2012 Order No. E13750-1 Copyright © Daktronics, Inc. DF-2939 Rev113011 25SV ATTACHMENT A Equipment List Equipment FB-1630 Football Display w/TNMC AF-3400-16x144 Galaxy Display PS-23s-112x144 ProStar Display AF-3700-64x176 Galaxy Display V-Link 4000 Video Processor Qty *Venus 7000 Controller 1 All Sport 5100 Control Console 2 *The parties acknowledge and agree that the indicated equipment is nearing or has exceeded its expected life. As such, some of the components may be unavailable or certain service issues may require a total replacement of this equipment. In the event a service issue regarding this equipment arises, the equipment will be checked. To the extent the failed component of the equipment can be exchanged for a refurbished item or repaired, the costs of the exchange or repairs are included in this Agreement. To the extent that the failed component cannot be exchanged or repaired, the replacement equipment is not included in this agreement. The determination of whether the equipment or any part or portion can be exchanged or repaired shall be at Daktronics reasonable discretion. Nothing herein shall be construed as requiring Daktronics to specially engineer, order, manufacture or otherwise incur costs to procure replacement components for this equipment. Proposal Date: 29 February 2012; Revised: 19 September 2012 Order No. E13750-1 Copyright © Daktronics, Inc. DF-2939 Rev113011 25&U Enhanced Service Portfolio Scope of Services 1. Daktronics Parts Coverage which includes: 1.1. Daktronics Expedited Parts Processing: includes replacement parts, repair and return parts and exchange parts. See Estimated Processing Times for Service Parts (DD#1428254) for estimated lead and delivery times. 1.2. Shipping of repaired or replaced failed electronic components to and from Daktronics. 2. Technical Phone Support: 2.1. General phone support hours 24/7/365. 2.2. Remote assisted technical support.' 3. Account Services: Access to Daktronics Service Coordination 24/7/365. 4. On-Site Field Services: On-site response between 24-48 hours of notification. 5. Costs of access to the display/equipment. 6. One Annual System Check to include display and control system checks and display filter change when applicable. 7. On-Site Parts Inventory Management, including inventory control. Enhanced Service Portfolio shall not include nor be construed to include any service or support that is not expressly stated above in the definition of the Enhanced Service Portfolio. Examples of services that are not within the scope of standard service include, but are not limited to, the following: 1. Remote monitoring services. 2. Camera calibration. 3. Display washing. Above listed exclusions are available as billable services. Quotes may be provided upon request. Purchaser Responsibilities The items listed below are the responsibility of the Purchaser. 1. Purchaser is responsible for routine operator functions such as content creation or management and all configuration, set-up, and operation for events/usage. 2. Purchaser is responsible for providing a secure internet connection. 3. Purchaser is responsible for the maintenance items listed below; failure to properly maintain equipment may, at Daktronics' sole discretion, relieve Daktronics of its responsibilities under the Terms and Conditions of Extended Service attached hereto. 3.1. Throughout the term of this Agreement, Purchaser shall maintain site conditions within the common environmental range of all system devices as specified by Daktronics. 3.2. Purchaser is responsible for routine, preventative maintenance functions of the external cooling systems (including but not limited to filters, fans, air conditioning) for displays. 1 Available with internet connection. Proposal Date: 29 February 2012; Revised: 19 September 2012 Order No. E13750-1 Copyright © Daktronics, Inc. DF-2939 Rev113011 25E9.421 ATTACHMENT B Unless otherwise agreed below, payment for the Service Agreement must be paid in full before the commencement date. Service Package: Please initial and check your selection: ? One Year Enhanced Services: $5,910 Expiration Date: 17 August 2013 ? Three Year Enhanced Services: $16,305 Pricing reflects an 8% lump sum discount. Expiration Date: 17 August 2015 ? ? Five Year Enhanced Services: $26,590 Pricing reflects a 10% lump sum discount. Expiration Date: 17 August 2017 (note: The amount will not exceed $24,900 Per Teresa Brown, Account Manager from Daktronics,lnc.) Proposal Date: 29 February 2012; Revised: 19 September 2012 Order No. E13750-1 /? Copyright © Daktronics, Inc. DF-2939 Rev113011 25E*112 Terms and Conditions of Extended Service 1. Scope of Extended Service Agreement. The scope of the Extended Service Agreement covers the Equipment and includes those services defined on Attachment A (excluding maintenance services which are the responsibility of Purchaser as defined on Attachment A or services which may be purchased for an additional fee) (the "Services"). Response Times are defined on Attachment A. 2. Contract Documents. The parties agree that any subsequently-issued Purchaser form, such as a purchase order, shall incorporate the terms and conditions of this Agreement. The provisions of this Agreement shall control in the event of any conflicting provision in Purchaser's form. 3. Commencement Date. The Services shall begin upon the date stated as the "Commencement Date" on the cover page of this Agreement. 4. Conditions Precedent. Daktronics reserves the right to suspend its performance in the event Purchaser fails to: (a) make payment as required, (b) maintain the Equipment within the recommended environmental conditions, including but not limited to appropriate ventilation/air conditioning for its location (Air conditioning systems must be maintained according to manufacturer's specifications), or (c) perform any other obligation. 5. Payment. Purchaser agrees to pay Daktronics according to the Payment Schedule. Unless otherwise stated, the price is exclusive of federal, state and local taxes, including without limitation sales, use, excise, privilege, or transactional taxes, but excluding Daktronics' income tax ("Tax"). Purchaser shall promptly pay upon demand such applicable Tax. Purchaser must present a valid exemption certificate if it claims any exemption from Tax. Late payments shall accrue interest at the rate of 1.5% per month. 6. Spare Parts Package. In the event the Equipment was purchased with a spare parts package, the parties acknowledge and agree that the spare parts package is designed to exhaust over the life of the Equipment and, as such, the replenishment of the package is not included in the scope of this Extended Services Agreement. 7. Limitations of Coverage. This Agreement does not cover (a) service due to: (i) inadequate or improper power, (ii) improper care, maintenance, storage or use of the Equipment, (iii) a Force Majeure Event, (iv) environmental conditions outside the Equipment's technical specifications (including, without limitation excessive temperatures, corrosives, and metallic pollutants), or (v) incorporation of accessories, attachments, or other devices not furnished by Daktronics; (b) the provision of replacement communication methods (such as wire, fiber optic cable, conduit, trenching or other solutions) for the purpose of overcoming local site interference; (c) LED degradation occurring within Daktronics technical specifications (degradation means the LED continues to emit light, but at some lesser level of brightness);.(d) paint or refinishing the Equipment or furnishing material for this purpose; (e) pixel failure less than a total of .5% of the overall display, or in the case of free form elements, one entire element; (f) electrical work external to the Equipment; (g) batteries; or (h) metallic or fiber optic data cable. 8. Actions that Void the Service Agreement. Daktronics shall be under no obligation to continue service under this Agreement if the Equipment is: (a) moved from its location of initial installation or reinstalled without the prior written approval of Daktronics (unless the equipment was designed by Daktronics to be mobile), or (b) improperly repaired or altered in a manner inconsistent with the Equipment manufacturer's standards or recommendations. 9. Service Providers. Daktronics may select the parties delivering services under this Agreement at its reasonable discretion. 10. Access to the Equipment. The Purchaser shall provide unfettered, solid, safe and unrestricted access to the Equipment, taking into account environmental or site conditions. Unless otherwise specified on Attachment A, the Purchaser shall be required to provide any lifts or access equipment. Additional equipment or personnel required for safety, as determined by Daktronics in its reasonable discretion, shall be billed separately on a time and material basis. 11. Adverse Conditions. In no event shall Daktronics be obliged to perform Services under this Agreement during the existence of Adverse Conditions. "Adverse Conditions" include without limitation, the following: severe inclement weather, hazardous site conditions including infestations of animals or dangerous insects, saturated ground conditions, or residence or occupation by unauthorized personnel. The determination of a site condition as an Adverse Condition shall be at the reasonable discretion of Daktronics. Inaccessibility due to Adverse Conditions will exempt a location from coverage under this Agreement until such time as the Equipment becomes safely accessible once again. 12. Cooperation. Purchaser shall fully cooperate with Daktronics in connection with the service of the Equipment. The Purchaser shall promptly notify Daktronics of Equipment failure. Waiver of liability or other restrictions shall not be imposed as a requirement prior to accessing the site. 13. Return Items. All items returned to Daktronics must have a Return Material Authorization (RMA) number. For exchange items, the number is included with the shipment of the exchange unit. For repair items, an RMA number can be obtained by phone (800-325-8766), (International +1-605-697-4000), fax (605-697-4444) unless otherwise directed by Daktronics. Proposal Date: 29 February 2012; Revised: 19 September 2012 Order No. E13750-1 A Copyright © Daktronics, Inc. DF-2939 Rev113011 25E413 14. Shipping. When returning parts to Daktronics for repair or replacement, Purchaser assumes all risk of loss or damage, agrees to use any shipping containers, which might be provided by Daktronics, and agrees to ship the Equipment in the manner prescribed by Daktronics. Daktronics assumes all risk of loss or damage during return shipment to Purchaser. 15. Confidentiality. To the extent permitted by law, Purchaser shall consider all information furnished by Daktronics, including the terms and conditions of this Agreement, to be confidential and shall not disclose any such information to any other person, or use such information itself for any purpose other than fulfillment of this Agreement unless Purchaser first obtains written permission from Daktronics to do so. Purchaser shall provide confidential information only to those of its agents, servants and employees who have been informed of the requirements of this paragraph and have agreed to be bound by them. The provisions of this paragraph shall survive termination of the Agreement. 16. Default. Daktronics reserves the right to terminate this agreement and accelerate all amounts due and payable if: (a) Purchaser fails to make payment to Daktronics within ten days of the agreed payment dates, (b) Purchaser otherwise fails to comply with any material provision of this Agreement, or (c) any proceeding is filed by or against Purchaser in bankruptcy. Daktronics reserves all its rights (both legal and equitable) under the agreement, applicable statutes, and the common law. If Purchaser fails to perform any covenant or obligation under this Agreement or any other agreement that Purchaser has with Daktronics, including without limitation the failure to pay when due any amounts owed to Daktronics, Daktronics shall be excused from the performance of any of its obligations under this Agreement and any other agreement it has with the Purchaser. Purchaser shall be liable for any and all costs and expenses (including reasonable attorney's fees) incurred by Daktronics in enforcing any provision of this Agreement. 17. Indemnity. Daktronics shall indemnify, defend and hold harmless the Purchaser and their respective subsidiaries, officers, directors, shareholders, partners, employees, agents, insurers, successors and assigns from any third-party claims for liability, losses, damages, costs or expenses (collectively, "Losses") arising out of: (i) any material breach of this Agreement by Daktronics; (ii) any negligent act or omission by Daktronics or its personnel, agents, subcontractors, or others engaged by Daktronics or under Daktronics' control related to the execution of this Agreement; (iii) any claim against any indemnified party by reason of or alleging any unauthorized or infringing use by an indemnified party of any patent, process, trade secret, copyright, trademark, or other intellectual property right regarding the Equipment or the Software and its components; or, (iv) any fine or assessment with respect to any violation or alleged violation of any Applicable Laws regarding safety or health. The Purchaser shall indemnify, defend and hold harmless Daktronics and its subsidiaries, officers, directors, shareholders, partners, representatives, employees, agents, insurers, successors and assigns of each of the foregoing from any and all Losses arising out of or in any way related to: (i) any material breach of this Agreement by the Purchaser; or (ii) any negligent act or omission by the Purchaser or its personnel, agents, subcontractors, or others engaged by the Purchaser or under their control (other than Daktronics or its personnel, agents, subcontractors, or others engaged by Daktronics or under Daktronics' control), (iii) any unauthorized or infringing use by an indemnified party of any patent, process, trade secret, copyright, trademark, or other intellectual property right. 18. Limitation of Liability. The parties agree that in no event whatsoever shall the liability of either party exceed the amount of the purchase price. It is agreed that in no event shall either party be liable for special, incidental, consequential or indirect damages, regardless of cause. Purchaser understands and agrees that the prices granted herein would be higher in the absence of this limitation of liability. Daktronics shall have no liability with respect to claims relating to or arising from Purchaser's use of third-party products and services. 19. Force Majeure. Both parties shall be excused from any liability under this Agreement for any delay in performance or failure to perform which delay or failure to perform is caused by circumstances which are beyond the reasonable control of that party, including without limitation acts of God, natural disaster, fire, flood, labor or material shortages, war, vermin, earthquakes, tsunami, acts of terrorism, etc. (a "Force Majeure Event"). 20. Assignment. Unless otherwise stated, this Agreement may not be assigned by either party without the prior written consent of the other party. 21. Miscellaneous. This Agreement shall be governed by the laws of the state where the Services are provided without regard to its conflict of law principles. This Agreement is the product of negotiations between the parties hereto represented by counsel and any rules of construction relating to interpretation against the drafter of an agreement shall not apply to this Agreement and are expressly waived. This Agreement represents the entire agreement of the parties and supersedes any previous understanding or agreement. This Agreement may not be amended or altered in any manner except in a writing signed by both parties. This Agreement may be executed in counterparts. The Purchaser and Daktronics are not partners or joint venturers. If any part of this Agreement is in any manner held to be invalid, illegal, void, or to be in conflict with any law, then the validity of the remaining portions or provisions of this Agreement shall not be affected, and such part, term, paragraph or provision shall be construed and enforced in a manner designed to effectuate the intent expressed in this Agreement to the maximum extent permitted by law Proposal Date: 29 February 2012; Revised: 19 September 2012 Order No. E13750-1 Copyright © Daktronics, Inc. DF-2939 Rev113011 25EA14