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HomeMy WebLinkAbout2015-11-10 - American Messaging Services LLC - General Agreements / General Service AgreementsAMERICAN MESSAGING SERVICES, LLCOSS� �IlII CUSTOMER AGREEMENT This Account Agreement ("Agreement") is made and entered into as of the date of execution by Customer ("Effective Date") by and between American Messaging Services, LLC with its headquarters located at Lewisville OPS Center, 1720 Lakepointe Drive, Suite 100, Lewisville, TX 75057 ("Carrier") and City of East Wenatchee, with a billing address located at 271 9th St N.E., East Wenatchee, WA 98802 ("Customer"). 1. Services to be Performed by Carrier: Carrier and/or its affiliates shall provide services and may provide equipment to Customer subject to the terms and conditions of this Agreement and Attachment 1, and all applicable federal, state and local laws, rules and regulations. 2. Term: The term of this Agreement shall begin on the Effective Date and continue for a period of three (3) years unless earlier terminated pursuant to the terms of this Agreement ("Term"). 3. Pricing: Equipment and services provided under this Agreement shall be provided in accordance with the Pricing set forth on this Agreement and Paging plans. Carrier reserves the right to increase pricing equal to the consumer price index of the preceding year, one time per Calendar year, without notice. Optional offerings may be referenced in this agreement and/or may be offered to Customer and all such offerings shall be governed by this Agreement and by the terms provided to customer that are associated with such offerings. The optional offerings include but are not limited to: Pager Replacement Program, Automatic Payment Plan, Pager Exchange Program, and Employee Pager Program. 4. Billing and Payments: Customer will be billed on a monthly basis or according to Customer's Billing Cycle, and Customer's bill will reflect the rates in effect under the applicable price plan at the time charges are incurred, plus any other charges that apply. Any unused call/packet counts from one month may not be transferred to another. Call/packet counts may not be aggregated as between wireless devices on the same account. Payment is due Thirty (30) days from the date of invoice. Customer waives any billing errors if Customer does not notify Carrier of such errors within sixty (60) days from date of the invoice containing such error. If Customer defaults, Carrier may: (a) require Customer to return all Carrier owned equipment to Carrier, and/or (b) be entitled to a judgment against Customer. A LATE FEE PAYMENT OF THE GREATER OF UP TO ONE AND ONE-HALF PERCENT (1.5%) PER MONTH (18 PERCENT ANNUALLY) OR ONE DOLLAR AND 50 CENTS ($1.50) PER ACCOUNT APPLIES TO BALANCES THAT REMAIN UNPAID. HOWEVER, IF THIS LATE FEE EXCEEDS THAT ALLOWED BY APPLICABLE LAW, THEN THE MAXIMUM FEE ALLOWED BY LAW SHALL APPLY (In California, Customer will be charged at 1.5%). Customer shall pay all reasonable costs of collection, including payment of attorneys' fees and court costs. These remedies shall be cumulative and in addition to any other remedies Carrier has at law or in equity. If service is interrupted due to non-payment, and Carrier reactivates Customer account, Customer will be required to pay a reconnection fee. 5. Wireless Equipment: Customer bears the risk of loss or damage to wireless equipment, whether leased or purchased, once received. If Customer has purchased the equipment the same shall be deemed accepted within fifteen (15) days of receipt or when the equipment is activated and provided with service, whichever occurs earlier. Acceptance of the equipment shall be deemed a complete discharge of Carrier's obligations as it concerns the purchased equipment. However, Customer shall have thirty (30) days from the date the equipment is received to discover alleged defects in such equipment and to return the equipment to Carrier for a replacement of similar type. Leased equipment remains the property of Carrier. If this Agreement is terminated, Customer will return all leased wireless equipment and accessories provided under this Agreement in reasonably good condition or reimburse Carrier at current retail rates for similar equipment and/or accessories. Lease charges will continue to accrue until all wireless equipment is returned or paid for by Customer. 6. Relationship of the Parties: Both parties agree and understand that the services performed under this Agreement are performed by Carrier as an independent contractor and not as an employee of the Customer. 7. Limitation of Liability: Carrier shall not be liable to Customer, its employees, agents, or any third party for injuries to persons or property arising from Customer's use of the services, the wireless equipment or related equipment, or for any defect in the services or equipment. Furthermore, Carrier shall not be liable for the installation, repair or maintenance of the services or equipment by any parties who are not employees of Carrier, or subcontractors of Carrier. Carrier's performance hereunder shall be excused if affected by equipment failure, acts of God, strikes, severe weather conditions, fire, riots, war, earthquakes, equipment or facility shortage or any other event or causes beyond Carrier's reasonable control. IN NO EVENT SHALL EITHER PARTY BE LIABLE FOR ANY INDIRECT, SPECIAL, CONSEQUENTIAL, INCIDENTAL OR PUNITIVE DAMAGES, HOWEVER CAUSED, WHICH ARE INCURRED BY THE OTHER PARTY AND WHICH ARISE OUT OF ANY ACT OR FAILURE TO ACT RELATING TO THIS AGREEMENT, EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE CLAIM OR POTENTIAL CLAIM OR OF THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT SHALL CARRIER BE LIABLE FOR LOSSES, DAMAGES, OR CLAIMS ARISING OUT OF THE USE OR ATTEMPTED USE OF EMERGENCY SERVICES, NOR SHALL CARRIER BE LIABLE FOR THE INABILITY TO ACCESS EMERGENCY SERVICE. 8. INFORMATION REGARDING WARRANTIES: Carrier agrees to assign. to Customer any of the manufacturers' consumer warranties received by Carrier and intended for the end user with respect to the wireless equipment. CUSTOMER 1 of 6 Contract for Othello Community Hospital Rev 04108 AMERICAN MESSAGING SERVICES, LLC CUSTOMER AGREEMENT ACKNOWLEDGES THAT CARRIER IS NOT THE MANUFACTURER OF THE WIRELESS EQUIPMENT AND CUSTOMER AGREES THAT CARRIER HAS NOT MADE AND MAKES NO REPRESENTATIONS OR WARRANTIES WHATSOEVER, DIRECTLY OR INDIRECTLY, EXPRESS OR IMPLIED, AS TO THE SUITABILITY, DURABILITY, FITNESS FOR USE, MERCHANTABILITY, CONDITION OR QUALITY OF THE WIRELESS EQUIPMENT. WITH RESPECT TO CARRIER, CUSTOMER PURCHASES OR LEASES THE WIRELESS EQUIPMENT "AS IS". CARRIER SHALL NOT BE LIABLE TO CUSTOMER FOR ANY LOSS, DAMAGE OR EXPENSE OF ANY KIND OR NATURE CAUSED DIRECTLY OR INDIRECTLY BY THE WIRELESS EQUIPMENT, OR BY ANY INTERRUPTION OF SERVICE OR LOSS OF USE OF THE WIRELESS EQUIPMENT, OR FOR ANY LOSS OF BUSINESS OR DAMAGE WHATSOEVER AND HOWSOEVER CAUSED UNLESS LOSS OR DAMAGE IS DIRECTLY CAUSED BY CARRIER'S WILLFUL MISCONDUCT. CUSTOMER ACKNOWLEDGES THAT DISSATISFACTION WITH THE WIRELESS EQUIPMENT WILL NOT RELIEVE CUSTOMER OF ANY OBLIGATION UNDER THIS AGREEMENT. NOT WITHSTANDING THE ABOVE, CUSTOMER MAY RETURN THE EQUIPMENT PER THE TERMS OF SECTION 5 HEREIN. 9. Intellectual Property: Carrier shall have no liability for violation of any patent, copyright, trademark or trade secret or for violation of any license or franchise arising out of or resulting from (a) the use of the services or wireless equipment in combination with any other product or service not supplied by Carrier, or (b) modification of the services or wireless equipment by, or on behalf of, Customer. 10. Indemnity: Each party agrees to be responsible for any personal injury or property damage caused by negligent acts or negligent omissions by or through itself or its agents, employees and contracted servants and each party further agrees to defend itself and themselves and pay any judgments and costs arising out of such negligent acts or negligent omissions, and nothing in this Agreement shall impute or transfer any such responsibility from one to the other. 11. Confidential Information: Customer shall hold in strictest confidence information provided to it by Carrier that is marked confidential or proprietary ("Confidential Information") for the Term of this Agreement and for a period of two years following the expiration or termination of this Agreement. Customer acknowledges that Carrier would suffer irreparable damage in the event of any material breach of these provisions. Accordingly, in such event, Carrier would be entitled to obtain preliminary and final injunctive relief, as well as any other applicable remedies at law or in equity as the result of a breach or threatened breach of this section. 12. Termination: Customer has the option to terminate this agreement during the first 30 days of service without penalty. A non - breaching party may terminate this Agreement if the other party commits a material breach of any term or condition of this Agreement and fails to cure such breach within a thirty (30) day period after receiving notice of such breach. Except as provided above, if Customer has less than ten (10) wireless devices in service and terminates service to any wireless devices within the Term of this Agreement or Carrier terminates Customer's service for good cause, then Customer shall pay $75.00 per unit to Carrier for each such termination as an early termination fee. If Customer has ten (10) or more wireless devices in service and at any time terminates service on twenty (20) percent of the contracted units in service, then Customer shall pay Carrier the monthly fee for each terminated device multiplied times the number of months remaining in the Term of this Agreement. Furthermore, if Carrier determines that Customer is misusing the equipment or service in a manner that negatively impacts Carrier's network, then Carrier may terminate and/or suspend service without notice to Customer. 13. Availability of Service: Messaging and paging services use radio transmissions, so Carrier cannot provide service when Customer's wireless equipment is not in range of one of our transmission sites, or a transmission site of another company that has agreed to carry Carrier's service, or if there is not sufficient network capacity available at the moment. Also, there are places, particularly in remote areas, with no service at all. Weather, topography, buildings, Customer's wireless equipment, and other conditions Carrier does not control may also cause missed pages or other problems. 14. Response Procedure: If service is unavailable in Carrier's service area for more than twenty-four (24) continuous hours due to Carrier's fault, Carrier will give Customer a pro rata daily credit for the period Customer is without service. To receive such credit, Customer must notify Carrier in writing within thirty (30) days after the first bill is received for the period during which the interruption started. 15. Assignment: Neither Party may assign this Agreement, except in the case of a merger or sale of all or substantially all its assets, without the prior written consent of the other party, which shall not be unreasonably withheld. Subject to these restrictions, this Agreement shall apply to, inure to the benefit of, and be binding upon the successors and assignees of the respective parties. 2of6 Contract for Othello Con-irn unity Hospital Rev 04108 AMERICAN MESSAGING SERVICES, LLC CUSTOMER AGREEMENT 16. Notices: All notices required or permitted to be given hereunder shall be in writing and shall be valid and sufficient if dispatched by (a) registered or certified mail, postage prepaid, in any Post Office in the United States; (b) hand delivery; (c) overnight courier; or (d) facsimile transmission upon confirmation of receipt by the recipient. If to Carrier: If to Customer: Contract Support Group To the billing address of record maintained by American Messaging Services, LLC. Carrier. 1720 Lakepointe Drive, Suite 100 Lewisville, TX 75057 17. Severability: Whenever possible, each provision of this Agreement shall be interpreted in such a manner as to be effective and valid under applicable law. If any provision of this Agreement shall be held by a court of competent jurisdiction or by a duly appointed arbitrator to be invalid or unenforceable under applicable law, such provision shall be ineffective only to the extent of its invalidity or unenforceability, and the remainder of such provision and the remaining provisions of this Agreement shall remain in full force and effect. 18. Wireless Number And/Or Internet Address: Carrier will assign one wireless telephone number (also referred to as an "access number", "pager number", or "wireless number"), cap code and/or internet address, if applicable, to each unit in service. Customer agrees that it does not have any property right or ownership in the wireless number, cap code or Internet address or in the personal identification number ("PIN(s)") the Customer or Carrier may establish. Carrier may change the Customer's wireless number if Carrier determines it is necessary to comply with regulatory and/or commercial requirements; however, Carrier shall not arbitrarily change Customer's wireless number and in the event of change Carrier shall specifically advise Customer of the reason for such change. 19. Charges: 1.1. Charges: Customer is required to pay a monthly service charge, and charges for shipping of equipment, messages, packets and/or pages over the monthly limit, and charges for network administration, activation, suspension, reconnection, termination and exchanges, if applicable, as well as fees related to optional offerings referenced in Section 3 above, and Carrier's regulatory and/or governmental costs. 1.2. Tax: If any federal, state or local government tax, fee, duty, or surcharge (collectively referred to as a "Tax") is required by applicable law to be collected from Customer by Carrier, then (a) Carrier shall bill Customer for such Tax, (b) Customer shall timely remit such Tax to Carrier, and (c) Carrier shall, where applicable, remit such collected Tax to the appropriate taxing authority. If Carrier does not collect a Tax because Customer has provided Carrier with evidence of exemption, and if such as an exemption is later determined to be inadequate, then, as between Carrier and Customer, Customer shall be liable for such uncollected Tax and for all interest, penalties and additions to Tax which are determined to be due with respect to such uncollected Tax. 20. Authority: The parties hereby represent that they have full power and authority to enter into and perform this Agreement and know of no contracts, agreements, promises or undertakings that would prevent the full execution and performance of this Agreement. 21. Reservation of Rights: Either party's waiver of any of its remedies for a breach by the other party shall not operate to waive any other remedies available to it, nor shall such waiver operate to waive rights to any remedies for a future breach, whether of a like or different character. 22. Dispute Resolution: Controversies or claims between the parties arising out of this agreement or actions of the parties will be resolved by direct negotiation between the parties. An aggrieved party must send a written statement to the other party outlining the nature and extent of the issue. The parties will meet within thirty (30) days to discuss the problem. If no resolution of the dispute is reached with forty-five (45) days of the initial statement, either party may pursue their remedies at law. The parties will give thirty (30) days' notice of intent to commence litigation. EACH PARTY WAIVES ANY TRIAL BY JURY. 23. Entire Agreement: This Agreement, together with the Attachment 1 and the Renewal Form, if applicable, contains the full and complete understanding between the parties, supersedes all prior agreements and understandings, whether written or oral pertaining to the services and cannot be modified except by a written instrument signed by both parties. 24. Governing Law: Except as provided below, this Agreement shall be governed by the laws of the State of Washington regardless of any conflicts of laws or rules that would require the application of the laws of another jurisdiction. Disputes requiring arbitration shall be resolved in the State of Delaware. If you are a resident of California, or receive service in California, then California law shall govern this Agreement and disputes shall be resolved in California. 3 of 6 Contract for Othello ConiniLinity Hospital Rev 04108 Ail-IERICAN MESSAGING SERVICES, LLC CUSTOMER AGREEMENT 25. Execution of Agreement: This Agreement may be executed in several counterparts, a copy of which shall be considered an original for all purposes whatsoever. 26. 1N WITNESS WHEREOF, the parties hereto have executed this Agreement as of the date of signature by Customer. CUSTOMER: CARRIE . City of East 3 Amer' ssag' g Servi es LLC By: Name: S-�evet) C. Lacq Name: Its Authorized Repr entative Its Authorized Representative Title: I- Kq ve Title: (-�" a`dCAIA N. C ozo Dated: "(M&, 1(2, ao15 Dated: C. a apltj ("Effective Date") 4of6 Compact fot Oltiello Cooimkini',y Hospital Pee O4u0E AMERICAN MESSAGING SERVICES, LLC CUSTOMER AGREEMENT Attachment 1 PRICING for City of East Wenatchee This is Attachment number 1 to the American Messaging Services, LLC Agreement and it is incorporated into and made part of that Agreement. The pricing set forth below is applicable during the initial term of the Agreement and any subsequent terms unless the parties agree to change or modify such pricing. **Upon execution of this agreement, all active devices will change from COAM (Customer Owned and Maintained) to LEASED. American Messaging will exchange devices that stop working due to normal wear and tear at no additional charge. If a device is lost, stolen or damaged beyond repair, Customer will be billed for that unit.** ALPHANUMERIC ONE-WAY PRICING Service Access Fee Page Allowance** Charge per page ALPHA Includes Lease Fee Per Month over Allowance Local* $ 8.99 per month I Unlimited N/A *Local service includes one or more Metropolitan Statistical Areas (MSAs). **Two hundred forty (240) character limit per page. Third Party Carrier Pricing In certain instances, American Messaging may utilize third party carriers to provide paging services. The pricing contained herein is based on services provided directly by American Messaging. If we determine that the use of a third -party carrier is necessary, our customer's associated service costs will be negotiated separately. PAGER REPLACEMENT PROGRAM (PRP) The optional Pager Replacement Program will protect you against theft and loss of your pager. Without PRP, you are responsible for the full pager replacement charge. With PRP, any repairable damage is covered 100% and if your pager is lost or stolen, it will be replaced with a comparable one (see fee schedule). Service Fee Loss Fee Loss Fee Note: American Messaging Services, LLC reserves with PRP without PRP the right to change or discontinue models during this agreement. Alpha $ 0.50 per month $35.00 $69.95 ACTIVATION INFORMATION Contracted Units in Service ENHANCED SERVICE OPTIONS Group Call $ 4.95 per month IntelliMessage (Mobile and/or Desktop) No Charge with active SHIPPING CHARGES AND MISC. CHARGES SHIPPING CHARGES American Messaging Services, LLC provides automated order fulfillment. By contacting Major Account Customer Service, a representative can initiate the shipping order and prioritize it to meet City of East Wenatchee's needs for the pager(s) to arrive at the location and by the time specified by City of East Wenatchee. American Messaging Services, LLC will pass onto City of East Wenatchee any charges that are incurred for shipping and handling. TAXES AND FEES Prices do not include state and local sales tax, and other applicable taxes, fees, charges, or pass through assessments. AMERICAN MESSAGING'S EXPLANATION OF USF FEES *The Telecommunications Act of 1996 requires American Messaging Services, LLC to support the Federal Universal Service Fund. American Messaging will separately list the Federal Universal Service Charge (FUSC) and Regulatory Charge (RC) on our customer's bill. All accounts will be assessed a monthly charge. The actual amount of the FUSC charge may vary monthly; the 5 of 6 Contract for Othello Coinnninity Hospital Rev 04/08 AMERICAN MESSAGING SERVICES, LLC CUSTOMER AGREEMENT history is listed below. The Regulatory Charge is $0.08 per line per month as of March 1, 2014. Some states have developed their own Universal Service programs and the USF rate is determined by the individual state. American Messaging Services, LLC will provide more information regarding this State Universal Service Fund upon request from City of East Wenatchee. RESTOCKING FEE Pagers returned between the 46th and the 180th day will be charged a $10.00 restocking fee. (No line item will appear on the invoice for the restocking fee, the credit issued will be $10.00 less that what was charged for the equipment.) Pagers returned after the 180th day will not receive an equipment credit. Lost pagers will follow the same process. If returned prior to the 45th day, a full credit will be issued. INVOICE FEE Customers will be charged an invoice fee of $4.95. The fee will appear on invoices for customers with 1 to 99 UIS that are not paperless. By going paperless, they can avoid this fee. NETWORK ADMINISTRATION FEE Customers will be charged a network administration fee of up to 9.95% per account. The fee is applied to recurring charges including overcalls if applicable, and is not applied to the Universal Service Fund charges or taxes. 6of6 Contract for Othello CornnILrnity Hospital Rev 04108