HomeMy WebLinkAbout07-16-2013 c8 tait communications - radio support contract
FROM: Wayne Padilla, Interim Director of Finance and Information Technology
Prepared By: Miguel Guardado, Network Services Supervisor
SUBJECT: TAIT COMMUNICATIONS - RADIO SYSTEM MAINTENANCE AND
SUPPORT CONTRACT
RECOMMENDATION
1. Approve an agreement with Tait Communication, for a two-year radio system maintenance
services contract in the amount of $52,736.00.
2. Authorize the City Manager to execute the maintenance and support agreement with Tait
Communications.
DISCUSSION
Background
In October 2009, after issuing a Radio System Upgrade RFP, the City entered into a contract with
Tait Communications to replace the City’s outdated citywide Motorola radio system. The radio
system upgrade project was completed in February 2011 and at that time the City entered into a
two-year maintenance and support contract with Tait Communications. The agreement did not
include extensions to this contract. The contract allowed the Network Services staff to contact Tait
Communications Support directly for any issues associated with the radio system. It also allowed
Tait support to access the City radio system to identify and resolve any problems. The maintenance
and support contact was for the February 2011 – June 30, 2013 time period.
The current maintenance and support contract with Tait Communications is nearing the end of its
contract term. Staff is recommending extending the support contract with Tait Communications for
another two-year period. The support that Tait Communications provides is for both hardware
equipment and software and is 24/7/365 support, which is needed to provide reliable, critical public
safety radio communications.
Sole Source Justification
Staff strongly recommends that the City sole-source their support and maintenance contract to Tait
Radio Communications. Tait Communications designed, installed and programmed the citywide
radio system. This system serves the Police, Fire, Public Works, Utilities and Parks and Recreation
departments. Contracting with any other radio vendor would require them to obtain in-depth
training on how the system is designed and operating within our City. The radio system backend
equipment is manufactured by Tait and is proprietary. Tait Communications has been very
responsive and able to solve all required hardware and software support needs without service
interruptions.
Meeting Date
Item Number
7/16/2013
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TAIT COMMUNICATIONS RADIO SYSTEM SUPPORT CONTRACT Page 2
CONCURRENCES
Network Services staff and Police Department staff have reviewed this report and concur with the
recommendation.
FISCAL IMPACT
Tait Communications has provided a quote for the two-year renewal of the support contract in the
amount of $52,736. Funding is currently programmed and available in the Information Technology
contract services operating budget as shown below:
Proposed Purchase
Network Services
Contract Support
Budget
Tait
Communications
Invoice
Balance
Tait Communications
Radio System
Support Contract
$291,437 $52,736 $238,701
ALTERNATIVE
Not Award Contract to Tait Communications. Staff does not recommend this option. The radio
system is a mission critical component of the day to day operations for public safety and other City
Departments that not having support available, should a portion of the system fail, would severely
delay staff time required to fully restore system functionality, and increase the City’s liability.
ATTACHMENT
Tait Communications Radio Support Agreement
t:\council agenda reports\2013\2013-07-16\tait communications support contract\car - tait communications radio
support.docx
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Date: July 2013
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Tait Limited
P.O. Box 1645
Christchurch
New Zealand
For regional offices address and telephone numbers, refer to http://www.taitradio.com .
All information contained in this document is the property of Tait Limited. All rights reserved. This manual
may not, in whole or in part, be copied, photocopied, reproduced, translated, stored, or reduced to any
electronic medium or machine-readable form, without prior written permission from Tait Limited.
The word Tait and the Tait logo are trademarks of Tait Limited.
All trade names referenced are the service mark, trademark or registered trademark of the respective
manufacturers.
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Contact Information ...................................................................................................................................... 1
SUPPORT AGREEMENT ............................................................................................................................ 4
SECTION B – Support Services ................................................................................................................... 6
SECTION C – Additional Charges ............................................................................................................. 15
SECTION D – General Terms & Conditions .............................................................................................. 16
SECTION E – Glossary of Terms ............................................................................................................... 24
APPENDIX A – Critical Spares Inventory ................................................................................................... 27
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THIS Support Agreement is made on ........day of ............... 201 ...... and is referred to herein as the
“Support Agreement”.
BETWEEN “TAIT” TAIT North America Inc.
15342 Park Row Blvd,
Houston, Texas 77084,
United States of America
AND “Customer”
The City of San Luis Obispo at 990 Palm Street, San Luis Obispo, CA
93401
WHEREAS:
1. Tait has supplied a Communications System to the Customer under the terms of the [INSERT REF
TO SUPPLY AGREEMENT].
2. The System may include equipment, products, hardware and software sourced from both Tait and
third party suppliers.
3. Tait has agreed to provide and Customer has agreed to purchase Support Services for the System
in accordance with the terms of this Support Agreement.
THE PARTIES AGREE AS FOLLOWS:
This Support Agreement consists of this front cover and the following Sections:
Section A Special Particulars
Section B Support Agreement
Section C Additional Charges
Section D General Terms and Conditions
Section E Glossary of Terms
The Parties have entered into and signed this Support Agreement this .......... day of ............. , 201 ... on
their behalf by duly authorized officers:
Signed for Tait: Date
Name
Signed for the Customer:
Name Date
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1. The Customer: City of San Luis Obispo
2. Customer’s Address for Notices: 990 Palm Street, San Luis Obispo, CA 93401
3. Description of the Communications System and Products to be covered by this Support
Agreement: Support will be provided for currently installed P25 hardware, equipment and software
products related to system infrastructure; Tait portable and mobile radios; as well as the AVTEC
dispatch console system.
4. Sites: Sites covered by this Support Agreement are 919 Palm Street (Communications Center), Fire
Station 2, Fire Station 3, South Hill.
5. Support Fee: USD 26,367.96 per annum
6. Review of Support Fee and Additional Charges: Each anniversary of the Commencement Date.
7. Commencement Date: July 1st 2013
8. Term of Agreement: Twenty four (24) months
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The Tait Support Agreement framework is compliant with ITIL (Information Technology Infrastructure
Library) which is an internationally recognized standard for IT Service Management. This set of concepts
and practices focuses on ensuring that the user has access to the appropriate services to support their
business functions.
Central to this approach is the Service Desk which functions as the single contact-point for the
Customer‟s Incidents. It manages Incident and Problem resolution and if necessary Priority upgrades
and re-classification including passing to second and third level support teams. Supporting the Service
Desk function are the specific areas of Software, Hardware, Network Management and Emergency
Support. These categories of support provide the Customer with access to greater levels of
specialization and expertise than can be provided by the Service Desk alone.
The next five sub-sections of this Agreement set out the Support Services that Tait will provide to the
Customer within each of the five categories of Support Service under this Support Agreement. The five
categories are:
1. Service Desk Support
2. Hardware Support
3. Software Support
4. Network Management Support
5. Emergency Support
Tait shall not provide any service which is described as out of scope or which is listed in the excepted
services section.
6. Excepted Services
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Tait shall provide the Customer with access to its Service Desk to (i) support Customer enquiries (ii)
enable access to technical, product and System information.
a) Service Desk
Tait shall provide 24 hour/365 day telephone and email access to the Service Desk. All Priority 1 and
Priority 2 calls must be submitted by telephone to the Tait Service Desk during normal office hours or via
the Out of Hours number outside of normal office hours. Normal office hours are considered 8am – 5pm
Central US time. Tait Service Desk support is available through telephone or email as detailed below.
Email – support.americas@taitradio.com
Telephone - 1 800 320 4037 (option 1)
Telephone out of hours – (Outside of 9-5 Central time Mon-Fri) - 1-866-446-6474
Tait shall use reasonable endeavors to:
i. provide a Restoration for Incidents (other than failures covered by the Excepted Services section
below) in the time frames specified below in 3(b);
ii. provide general technical advice on System configuration, capacity management, operation of the
System and other technical queries subject to availability of resource.
b) Response and Restoration Time
Tait shall use reasonable endeavors to meet the Response Time and Restoration Time target set out
below.
Response Time and Restoration Time targets during Business Hours are as follows:
Incident (type) Response (Hours) Restoration (Hours)
Priority 1 0.5 4
Priority 2 1 8
Priority 3 8 48
Priority 4 8 168
c) Documentation Support
At the time of commissioning of the System, Tait shall establish a system configuration log for the
Customer. The configuration log will record information at the time of commissioning on parameter
settings, network topology, and site configurations. Tait will update the system configuration log upon
request, provided that the Customer advises Tait in writing of any changes to the configuration of the
System. The information held in the configuration log will assist Tait and Customer in diagnosing any
future Incidents and /or Problems.
The Customer shall inform Tait of changes to the configuration of the System at least annually in writing.
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d) Monthly Service Desk Report
Tait will provide a Monthly Service Desk Report to the Customer. This report will provide a record of
Customer‟s usage of the Service Desk, open Incidents, Problems, Enhancement and Service Requests,
and a summary of Support Services activity for the previous month.
e) Online Technical Support Resources
Tait shall issue Customer with login(s) and password(s) to the Customer Service Portal providing web
based access to:
Standard User Documentation
Standard Installation Documentation
Standard Accessories Documentation
Standard Product Specification Documentation
Frequently Asked Questions and Search Facility
Programming and Calibration Application (Downloadable)
Service Kit (Downloadable)
Technical and Software Release Notes
Integration Documentation
Service Documentation
PCB Documentation
System Documentation
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a) Warranty
With respect to general Hardware Support, Customer has the benefit of the Warranty provided by Tait
under the terms and conditions of the Supply Agreement.
For the avoidance of doubt once the Warranty provided under the Supply Agreement has expired,
Customer may either purchase an extended warranty from Tait or shall be subject to the Additional
Charges stated in Section D for any out of warranty repairs.
b) Engineer Support – Hardware
Tait will provide access to a Customer Support Engineer for Incident and Problem Resolution and Service
and Enhancement Request investigation in relation to Hardware.
For the avoidance of doubt Enhancement and Service Request (“Request”) investigation shall assess the
feasibility and practicality of the Request. Tait shall provide a recommendation to the Customer including,
if appropriate, a quotation for the implementation of the Request.
c) Quarterly Servicing Report
Tait will provide a Quarterly Hardware Servicing Report to the Customer. This report will provide details of
Hardware Incidents and Problems, corrective actions and information on Critical Spares.
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a) Warranty
With respect to general Software Support, Customer has the benefit of the Warranty provided by Tait in
relation to Software under the terms and conditions of the Supply Agreement.
b) Release Notification
Tait will publish a notification on the Customer Service Portal upon the release of Updates and Upgrades.
For the avoidance of doubt Updates and Upgrades are not automatically provided to Customer as a part
of this Support Agreement.
c) Release Documentation
Customer is provided with access to Software Release Documentation via the Customer Service Portal
under this Support Agreement.
d) Release Availability
Tait will make available for download via the Customer Service Portal Software Updates relevant to the
System at no additional cost to the Customer; and Process documentation as a guide to assist the
Customer to Update and/or Upgrade their Software. For the avoidance of doubt Upgrades are not
included under this Support Agreement
e) Engineer Support – Software
Tait will provide access to a Customer Support Engineer for Incident and Problem Resolution and
Service and Enhancement Request investigation in relation to Software.
For the avoidance of doubt Enhancement and Service Request (“Request”) investigation shall assess the
feasibility and practicality of the Request. Tait shall provide a recommendation to the Customer including,
if appropriate, a quotation for the implementation of the Request.
f) Upgrade Recommendations
Software Upgrade subscriptions are not included as part of this Support Agreement. Tait will, upon
request, provide a recommendation as to whether the Upgrade is compatible with the Customer‟s current
configuration and provide advice on any parameter setting changes or hardware modifications which
would be required as a result of the Upgrade. Associated hardware modifications, additions and on-site
assistance, if required, will be quoted at the time the Upgrade is requested.
Tait will, upon request, make available the services of staff who can advise the Customer on how to carry
out any update or upgrade with a minimum of disruption to service.
g) Annual Update or Upgrade
Tait will, upon written request, make available the services of staff for the purpose of updating or
upgrading (subject to Customer purchasing the relevant Upgrade) Customer‟s Equipment at the
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Customer site. Customer shall coordinate the centralisation to a single location of all Customer
Equipment requiring the update / upgrade. Infrastructure Equipment will be updated / upgraded remotely
where feasible; otherwise Tait will arrange with Customer for the update / upgrade to be performed at the
relevant sites.
This service is available to the Customer once per year under this Agreement. Assistance with further
Updates or Upgrades is available by quotation.
h) Ongoing Software Support
In order for Customer to continue to benefit from ongoing Software Support, Customer shall ensure that it
upgrades the Software to a version no more than two versions older than the currently released version
as detailed on the Customer Service Portal, unless otherwise agreed in writing with Tait.
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a) Tait Network Management System
Tait will provide Customer with login(s) and password(s) for web based access to the Tait Network
Management System (“NMS”).
The NMS shall enable Customer to filter, view and report on real time network performance and
management data for the System.
b) Quarterly Performance Reporting
Tait will provide the Customer a quarterly report covering (i) the network performance in accordance with
the network performance indicators agreed between the parties and, if applicable, (ii) a set of
recommendations for network optimization and process improvement.
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Standard Emergency Support provides the Customer with support for Emergency Incidents as follows:
a) 24 x 7 Emergency Incident Support
Tait shall provide continuous 24 hour telephone access to the Service Desk for Emergency Incident
Support. Customer shall log the Incident with the Service Desk and Tait shall provide Customer with
immediate and unlimited telephone access to a Customer Support Engineer in order to resolve the
Incident and re-stabilise the System to carry normal traffic levels which may be via a workaround or
replacement Product(s) as applicable.
For the avoidance of doubt, following investigation and resolution of the Emergency, categorization of an
Incident as an Emergency shall be reviewed by the Parties. Tait may reasonably determine that an
Emergency Incident should be reclassified as a non-emergency Incident. In such case Tait shall be
entitled to (i) treat the Incident in accordance with the remaining applicable terms of this Support
Agreement; and (ii) invoice Customer for any Additional Charges which may be payable.
b) Emergency On-Site Support
Dependent upon the nature and complexity of the situation, Tait may arrange for an Emergency on-site
visit by a suitably qualified Customer Support Engineer to assist with resolution of the Incident.
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The Support Services under this Agreement comprise only the services set out above. The Support
Services shall not include the following services (the “Excepted Services”):
provision of any support services not listed in sections B1 to B5 inclusive;
provision of the Support Services for any products, system or solution not listed in Section A3;
provision of the Support Services with respect to non-Tait Products except where specified;
provision of the Support Services at a location other than the Site(s);
correction of faults due to Customer‟s failure to meet its First Line Support obligations;
correction of faults due to Customer‟s modification, neglect or misuse of the Products, failure to
maintain a suitable environment for the operation and maintenance of the Products (including
without limitation power supply, air conditioning or humidity control) in accordance with normal
industry practices and as set out in the published data sheets, manuals or other written
instructions for the Products;
correction of damage caused by any accident or disaster, fire, flood, water, wind, lightning,
vandalism or theft;
correction of faults in any attachments or associated equipment (whether or not supplied by Tait)
which do not form part of the Products;
painting or refinishing of the Products;
the relocation or transportation of Products, or the rectification of any faults caused by such
relocation or transportation, (save where performed by Tait);
the provision of any modification or any upgrades designed to provide new or enhanced
functionality unless this is incidental to the Support Services or provided for under Part 3
(Software Support) above;
services required to implement changes to the System or configurations which were not a
requirement of the specifications under the original supply contract for the Products or otherwise
committed to by Tait in writing;
correction of any fault which would be remedied by a software release or other repair which
meets the original specifications for the Products and which has been refused by Customer.
If Customer requests Tait to provide any Excepted Services, Tait shall be entitled to charge for the same
at rates to be agreed in advance between the parties, or failing such advance agreement Tait standard
Additional Charges for the relevant services. If requested, Tait shall provide a written quotation and
estimated completion date for provision by Tait of any Excepted Services.
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For a list of additional charges and fees please refer to your Sales Person or Account Manager. The
current Services Pricing for 2013 is detailed below: -
Support Services – Out of warranty repairs charge is $85.00 per hour.
Support Services - On-site Support charge is $3,160.00 per day, per person (includes preparation and
travel days)
Support Services - Emergency On-site Support charge is $3,342.00 per day, per person (includes
preparation and travel days)
Design Services - Coverage Optimisation charge is $2,024.00 per day remote / $3,342 per day on-site
per person (includes preparation and travel days)
Deploy Services – Project Management charge is $3,160.00 per day, per person (includes preparation
and travel days)
Deploy Services – Training Delivery charge is $3,450.00 per day, per person (includes preparation and
travel days)
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1. Term
1.1 The Term of this Agreement shall be the term specified in Section A commencing on the
Commencement Date, provided that the parties may mutually agree in writing to extend this
Agreement on terms and conditions to be mutually agreed between the parties prior to the expiry
of the then current Term.
2. Tait Support
2.1 Tait shall for the Term provide the Support Services set forth in this Agreement for the Products,
at the Sites in consideration of payment by Customer of the Support Fees. Equipment, software
and/or systems not listed in the Agreement (“Additional Products”) shall only be covered by the
Agreement where agreed in writing by the Parties. Each of the expressions “Term”, “Products”,
“Sites” and “Support Fees” shall mean the term, products, sites and support fees identified in
Section A of this Agreement.
2.2 Support Services shall be supplied for the Products at the Sites and unless agreed otherwise in
writing, Tait shall not be obligated to provide Support Services for the Products located at any
other site(s).
2.3 Except in response to warranty claims during the warranty period for any Product, Tait may
supply new, second-hand or reconditioned replacement parts in the performance of Support
Services or Excepted Services.
2.4 Only the Support Services described in Section A as being in scope for this Agreement shall be
provided. Tait shall not provide the Excepted Services.
3. Support Fees and other payments
3.1 Support Fees will be invoiced by Tait and paid by Customer quarterly in advance, the first
payment being due before commencement of the Term. All Invoices including invoices for
Additional Charges are payable within 30 days of the date of invoice.
3.2 All fees and charges referred to in the Agreement are exclusive of sales, use, value added or
goods and services taxes. Where appropriate such taxes will be added to the invoice and paid by
Customer unless Customer provides Tait with evidence of payment or certificate of exemption.
Support Fees are also exclusive of any customs, import or export duties, and should any such
duties arise, these shall be payable by Customer.
3.3 To the fullest extent permissible by law, Customer‟s right of set-off is excluded. No payment shall
be deemed to have been received until Tait has received cleared funds.
3.4 If Customer is overdue with any payment then, without prejudice to any other right or remedy
available to Tait: (i) Customer shall be liable to pay interest on the overdue amount at the rate of
one per cent per complete month until Tait has received payment of the overdue amount together
with interest that has accrued; and (ii) Tait reserves the right to suspend contractual performance
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and/or exercise a lien over Products returned for repair or replacement Products until Customer
has made such overdue payment in full.
3.5 Tait may increase the Support Fee and the rates for Additional Charges from each anniversary of
the Commencement Date by written notice to the Customer at least 30 days before each such
anniversary. The amount of such increase will not exceed the increase in the Consumer Price
Index or its equivalent in the country the Support Services are provided. Tait shall also be
entitled to vary the Support Fee if Customer requests an increased level of Support Services,
Support Services for Additional Products, if Products are upgraded during the Term or if there is
any other variation requested by Customer with respect to this Agreement. Such variation shall
be agreed in accordance with clause 14.2 of this Agreement.
3.6 If Customer requests Tait to provide any Excepted Services, Tait shall be entitled to charge for
the same at rates to be agreed in advance between the parties, or failing such advance
agreement Tait standard Additional Charges for the relevant services. If requested, Tait shall
provide a written quotation and estimated completion date for provision by Tait of any Excepted
Services.
4. Obligations of the Customer
4.1 First-Line Support - the Customer shall undertake the following First Line Support actions and
acknowledges that the commitments and pricing provided by Tait under this Agreement are
dependent on the prompt and proper performance of those First Line Support obligations:
4.1.1 engage the Support Services by contacting the Service Desk as set out in Section B of
this Agreement;
4.1.2 immediately after making a request for Tait support, provide Tait where possible with an
example of the relevant defect or error;
4.1.3 keep Supplier fully informed with up to date product, site and configuration details for the
Products, including without limitation product serial numbers, locations, contact
information, and site personnel qualified to submit service incident requests;
4.1.4 have personnel with sufficient Product related training to be able to (i) carry out basic
operating system housekeeping, and (ii) work through complex procedures explained
over the phone by the Supplier;
4.1.5 carry out procedures for the rectification of errors or malfunctions within a reasonable
time after such procedures have been received from Tait;
4.1.6 provide a mutually agreed form of communications link for remote diagnostics and
promptly granting access rights to Supplier when required;
4.1.7 replace defective Products with a Critical Spare where required and promptly shipping the
defective Products to Tait designated service centre in accordance with Tait reasonable
directions;
4.1.8 maintain and make available the required type and number of Customer owned and
managed Critical Spares in accordance with clause 5.4 of this Agreement;
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4.1.9 ensure that the personnel responsible for carrying out First Level Support obligations are
suitably qualified, trained and/or experienced; and
4.1.10 provide Supplier with all reasonable co-operation to facilitate the efficient discharge of its
obligations under this Agreement including, without limitation, (i) granting reasonable
access to the Site(s) and the Products, (ii) ensuring the Site(s) comply with all relevant
health and safety codes, and (iii) providing on request, a suitably qualified or informed
representative, agent or employee to accompany Tait personnel and to advise Tait on
access or on any other matter within the Customer‟s knowledge or control which will
assist Tait in complying with its obligations under the Agreement.
4.2 System Backup. It is the Customer‟s responsibility to ensure systems backups (including all
programs and data) are kept up to date.
4.3 The Customer agrees that it is responsible for primary power source, PABX and PSTN
connections or lines, RF (Radio Frequency) coverage performance subsequent to Coverage
Verification Test acceptance, the provision of suitable inter-site and inter node links, and further
installation of the equipment at the sites to which the equipment is to be used.
4.4 The Customer shall provide secure and adequate facilities adjacent to or in reasonable proximity
to the equipment for the storage by Tait of tools and other items necessary for the proper
maintenance of the equipment and the Customer shall permit Tait to have access to such storage
facilities at all reasonable times.
4.5 The Customer is responsible for maintaining the confidentiality of any logon(s) and password(s)
required to access Services. Access to Tait Services is only permitted for current Customer
employees or contractors. The Customer must manage and remove access rights for departing
employees (for example by changing passwords) and Tait shall not be liable for any loss or
damage incurred by the Customer due to Customer‟s failure to comply with this clause.
5. Replacement and spare parts
5.1 Where parts of the Products have been replaced and provided by Tait, title in the parts replaced
will pass to Tait upon removal of those parts from the Customer system.
5.2 Subject to clause 8.1, title in all replacement parts for the Products provided by Tait in performing
the Support Services (except for Software) will pass to the Customer upon installation.
5.3 In the case of products and services for which an Additional Charge is payable by the Customer,
title in such replacement parts shall pass to the Customer on full payment of the Additional
Charge.
5.4 Tait requires Customer to purchase and store at the Site (or other location agreed in writing
between the Parties) the Critical Spares set out in Appendix A. From time to time Tait may
additionally require the Customer to purchase and store at the Site such spare parts, as Tait
considers necessary for the provision of effective Support Services. Typically this may equate to
2% of Products purchased.
5.5 Tait will not be liable for any failure or delay in providing Support Services where such failure or
delay is the direct or indirect result of the failure of the Customer to comply with the previous
clause.
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6. Health and Safety
6.1 Each Party shall comply with all relevant Health and Safety laws and regulations in all respects in
relation to its obligations under the Agreement (including without limitation a safe working
environment and methods of working), and shall indemnify the other Party in respect of all costs ,
liabilities, damages or expenses incurred as a result of any failure to do so.
7. Exclusivity
7.1 The Customer shall only permit maintenance, repairs or adjustments to Products by a third party
with the prior written consent of Tait.
7.2 In the event the Customer effects repairs additions or alterations to the Products, the Customer
represents, warrants and agrees to use only Tait approved parts and procedures as directed by
Tait for the operation of the equipment.
8. Software and Intellectual Property Rights
8.1 All patents, trademarks, service marks or business names, registered designs, copyrights,
design rights, utility models, topography rights, applications to register any of the aforementioned
rights, trade secrets, knowhow and rights of confidence and any other intellectual or industrial
property rights of any nature whatsoever in any part of the world (“IPR”) arising under the
Agreement, except to the extent that they comprise or incorporate IPR supplied by Customer,
shall vest in and be owned by Tait absolutely and Customer shall acquire no right, title or interest
therein.
8.2 Any computer program, firmware or other software forming part of the Products or supplied by
Tait to Customer pursuant to the Agreement (“Software”) and/or IPR provided to Customer under
the Agreement shall remain the exclusive property of Tait (or its suppliers) and such Software and
IPR shall, unless otherwise agreed in writing, be licensed to Customer under the license terms
applicable to the products, equipment, software or systems which they replace or to which they
relate.
9. Warranty
9.1 Tait warrants that it shall perform Support Services in a professional and workmanlike manner,
subject to a claim against this warranty being notified to Tait within 90 days of provision of the
relevant Support Services. Customer‟s sole and exclusive remedy and Tait entire liability for such
breach of the above warranty or any claim related to the Support Services shall be re-
performance of the Support Services.
9.2 Warranties given in this Clause 9 are unique to, and may not be assigned or transferred in whole
or in part by, Customer.
9.3 THE WARRANTIES SET FORTH HEREIN ARE EXCLUSIVE AND IN LIEU OF ALL OTHER
WARRANTIES, WHETHER EXPRESS, IMPLIED OR STATUTORY, INCLUDING WITHOUT
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LIMITATION THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A
PARTICULAR PURPOSE, TITLE, NON-INFRINGEMENT, AND QUALITY OF SERVICE.
9.4 The Customer acknowledges that while Tait may be called upon to give consultative advice under
this Agreement and while Tait will use its reasonable endeavours to give the best advice it can to
the Customer, Tait advice is dependent upon inter alia the information supplied to Tait by the
Customer and third parties and accordingly the Customer may make no claim against Tait or its
personnel for the appropriateness of such advice.
10. Limitation of Liability
10.1 NEITHER PARTY WILL BE LIABLE FOR ANY (I) LOSS OF PROFITS; (II) LOSS OF
TURNOVER; (III) LOSS OF OR DAMAGE TO REPUTATION; (IV) LOSS OF, OR LOSS OF THE
USE OF ANY SOFTWARE OR DATA; (V) LOSSES OR LIABILITIES IN RELATION TO ANY
OTHER CONTRACT; OR (VI) INDIRECT, INCIDENTAL, SPECIAL OR CONSEQUENTIAL LOSS
OR DAMAGE INDIRECT, PUNITIVE, SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGE
IN CONNECTION WITH OR ARISING OUT OF THIS AGREEMENT HOWEVER IT ARISES,
WHETHER FOR BREACH OR IN TORT, UNDER AN INDEMNITY, EQUITY OR OTHERWISE,
EVEN IF THAT PARTY HAS BEEN PREVIOUSLY ADVISED OF THE POSSIBILITY OF SUCH
DAMAGE.
10.2 Each party‟s aggregate liability (other than the Customer‟s obligation to pay Support Fees,
Additional Charges and penalty interest) to the other for claims relating to this Support
Agreement, whether for breach or in tort under an indemnity, equity or otherwise, shall be limited
to the amount paid by the Customer for services under this Agreement in the 12 month period
preceding such claim.
10.3 Notwithstanding anything in this Agreement Tait will not be liable for any claim by the Customer in
relation to this Agreement unless the claim is received in writing by Tait within 3 months of the
date of when the alleged claim ought reasonably to have come to the attention of the Customer.
10.4 Customer agrees that it shall take such reasonable precautions (relative to the importance to
Customer of the Products), including without limitation backing up software and data at
reasonable intervals, implementing back-up systems or redundancy and maintaining suitable
numbers of spare units at suitable locations (at a minimum to Tait recommended spares levels).
Tait shall have no liability for any losses suffered by Customer to the extent that the loss
concerned would have been prevented by the taking of such reasonable precautions.
10.5 The provisions of this Clause 10 have been considered by the Parties in the light of the
availability of insurance and the relative positions, risks and responsibilities of the Parties and
both Parties agree that they are fair and reasonable.
11. Force Majeure
11.1 Neither Party shall be liable for any loss or damage suffered or incurred by the other arising from
the first Party‟s delay or failure to fulfill or otherwise discharge any of its obligations (except
obligations to pay money) under the Agreement to the extent that such delay or failure is caused
by any cause or circumstance beyond its reasonable control including but not limited to act of
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God, governmental act, withholding, delay or revocation of export or import control approval or
other license, war, terrorist activity, fire, flood, earthquake, tsunami, explosion, civil commotion,
industrial dispute (other than industrial disputes related solely to the employees of the Party
claiming force majeure), or the unavailability or failure of any public telecommunications network
(“Force Majeure”).
11.2 Subject to the delaying Party promptly notifying the other Party in writing of the reason for and
likely duration of the delay, the performance of the delaying Party‟s obligations, to the extent
affected by the delay, shall be suspended during the period that the cause persists provided that
each Party shall use all reasonable efforts to avoid the effect of that cause provided that if
performance is not resumed within 90 days of that notice the non-delaying Party may at any time
thereafter but in any event prior to resumption of obligations by the delaying Party by notice in
writing terminate the affected portion of the Agreement.
11.3 If Tait is unable to perform its obligations within 60 Working Days after the commencement of the
Force Majeure event, the Customer or Tait may terminate this Agreement by notice in writing.
12. Confidentiality
12.1 Nothing in this Agreement shall affect any related non-disclosure agreement between the Parties,
which shall continue in full force and effect and shall apply to the subject matter of the
Agreement. All pricing, Software and technical information provided by Tait under or in relation to
the Agreement shall be the confidential information of Tait and shall not be disclosed to any third
party by Customer.
12.2 Each Party undertakes not to (and to procure that its employees and contractors shall not)
divulge the terms of this Agreement or any information of a confidential nature disclosed to it by
the other, whether oral or written, and shall not use such information except as contemplated by
the Agreement. This obligation shall cease to apply to information which:
12.2.1 is or becomes part of the public domain without violation of the Agreement;
12.2.2 is known and on record at the receiving party prior to disclosure by the disclosing party;
12.2.3 is lawfully obtained by the receiving party from a third party without similar restrictions to
those herein contained;
12.2.4 is developed by the receiving party completely independently of any such disclosure by
the disclosing party;
12.2.5 is required to be disclosed by competent government or regulatory agencies, court or
stock exchange provided, however, that the receiving party shall notify the disclosing
party as soon as lawfully and practically possible of the requirement to make such a
disclosure.
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13. Termination and Suspension
13.1 Either Party may terminate the Agreement immediately at any time by written notice to the other:
13.1.1 in accordance with Clause 11 (Force Majeure) above; or
13.1.2 if the other Party commits a material breach of the Agreement which it fails to remedy
within 30 days of receiving written notice requiring it to do so; or
13.1.3 if the other Party becomes insolvent, has an administrator, receiver or manager
appointed of the whole or any part of its assets or business, makes any composition or
arrangement with its creditors, takes or suffers any similar action in consequence of debt
or an order or resolution is made for its winding-up dissolution or liquidation (other than
for the purpose of solvent amalgamation or reconstruction) or any event occurs in a
foreign jurisdiction analogous to, or comparable with any of the above.
13.2 Except as expressly stated elsewhere in the Agreement, any termination of the Agreement
(howsoever occasioned) shall not affect any accrued rights or liabilities of either Party nor shall it
affect the coming into force or the continuance in force of any provision which is expressly or by
implication intended to come into force or continue in force on or after that termination.
Notwithstanding the foregoing, the Parties agree that the equitable remedy of specific
performance of either Party is hereby expressly excluded.
13.3 Tait shall be entitled to suspend contractual performance under the Agreement (with Support
Services beginning as soon as reasonably practicable after rectification of the ground(s) for
suspension) (i) pursuant to Clause 3.4(ii); or (ii) where Customer is in default in respect of any of
its obligations pursuant to Clause 4.
14. General Terms
14.1 Assignment. Neither party may assign its rights nor obligations under this Agreement without
the prior written consent of the other party except that Tait may subcontract its support obligations
to a third party, provided that Tait will remain responsible for the actions of such third party and
advise the Customer in writing prior to the assignment.
14.2 Variations. Any amendment or variation to the Support Services or to this Agreement shall be in
writing and signed by duly authorized representatives of both parties.
14.3 Severability. In the event that any part or parts of this Agreement are held illegal, invalid or
unenforceable by any Court or administrative body of competent jurisdiction, such determination
shall not affect the legality, validity or enforceability of the remaining parts of this Agreement
which shall remain in full force and effect. Where relevant, the Parties shall use commercially
reasonable efforts to find a new stipulation resembling the invalid one in its commercial
consequence as much as possible
14.4 Waiver. The failure of either Party to enforce any term of this Agreement does not constitute a
waiver of it and shall in no way affect the right later to enforce the terms.
14.5 Independent Contractor. Nothing herein contained shall be construed to constitute the parties
hereto as partners or joint ventures or the agent of the other Party in any sense of these terms
whatsoever, and no party may act for or bind another party in any dealings with a third party.
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14.6 Disputes. The Parties shall attempt to resolve in good faith any disputes arising under or in
relation to or in connection with this Agreement or its subject matter. If good faith negotiations
between the parties fail to resolve the dispute then, prior to issuing court proceedings, the parties
shall give due consideration to the use of mediation or alternative dispute resolution techniques
and reference to independent experts.
14.7 Jurisdiction. The construction, validity and performance of this Agreement shall be governed by
the laws of the State of Texas excluding its conflicts-of- law rules which might apply the laws or
refer the matter to a different jurisdiction and the state and federal courts of Texas as having
exclusive jurisdiction over any dispute arising under or in connection with this Agreement.
Notwithstanding the foregoing the Parties shall attempt to resolve in good faith any disputes
arising and shall give due consideration to the use of mediation or alternative dispute resolution
techniques and reference to independent experts prior to the issue of court proceedings.
14.8 Entire Agreement. This Agreement shall constitute the entire agreement between the Parties in
relation to its subject-matter and shall supersede all previous undertakings, agreements,
representations or commitments, whether express or implied, written or oral and is intended as a
final expression of this Agreement between the Parties.
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Business Hours Under this Agreement Business Hours means 8.30am-5pm Monday to
Friday, excluding Public Holidays where the service desk is located which
is servicing the Customer. Tait service desks are located in Brisbane and
Melbourne servicing Australian customers. Christchurch servicing New
Zealand customers. Houston servicing U.S.A and South American
customers. Huntingdon UK servicing U.K, Europe, Middle East and African
customers.
Commencement Date The commencement date for the Support Services set out in Section A of
this Agreement.
Critical Spares The required critical spares for the System set out in Appendix A – Critical
Spares Inventory.
Customer Service Portal A web based application for the Customer to interact and receive
information from Tait found at http://support.taitradio.com/home.
Emergency An emergency is an unforeseen Incident at Priority Level 1 or 2 which
prevents critical communications Products being usable by or available to
the Customer.
Enhancement Request A request from a Customer for a change to existing Product functionality.
First Line Support The first level of support group involved in the resolution of Incidents.
Customer First Line Support obligations are described in Section D of this
Agreement.
Hardware Means any equipment and tangible Product described in Section A of this
Agreement.
Incident An incident is any event which is not part of the standard operation of the
System and which causes, or may cause, an interruption or a reduction of
the quality of the service provided by the System.
Priority Category used to identify the relative importance of an Incident, Problem or
change requested by the Customer pursuant to the Supply Agreement.
Priority is based on impact and urgency, and is used to identify required
times for actions to be taken.
Priority 1 Priority 1 – Critical: In relation to the network provided by the System,
conditions exist that severely affect service, capacity/traffic capability and
require immediate corrective action regardless of time of day or day of
week as viewed by the Customer. For Terminals it means a defect that is
likely to result in hazardous or unsafe conditions, where the user‟s life may
be at risk.
Priority 2 Priority 2 - Major: In relation to the network provided by the System,
conditions exist that seriously affect System operation maintenance and
administration of the System and require immediate attention as viewed by
the Customer. The urgency is less than in critical situations because of a
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lower immediate or impending effect on System performance, Customers
and the Customer operations and revenue.
For Terminal Products it means a defect that is likely to result in failure of
the essential performance, critical functionality or usability of the Product.
A Priority 1 issue may be reclassified as Priority 2 if there is a workaround
in place resulting in a Priority 2 classification.
Priority 3 Priority 3 - Minor: In relation to the network provided by the System
conditions exist that do not significantly impair the functions of the System
and do not significantly affect service to Customers. These Problems or
Incidents are not traffic impairing. For Terminals it means a defect that is
not likely to substantially reduce the essential performance, critical
functionality or usability of the Product.
A Priority 1 or Priority 2 issue may be reclassified as Priority 3 if there is a
workaround in place resulting in a Priority 3 classification.
Priority 4 Priority 4 – Advisory: There is a minor issue or an opportunity for product
improvement. This issue does not affect the making of calls on the network
provided by the System.
There is a minor inconvenience to the user, but the Product and feature /
functionality still operates within specification. Customer requests more
information or an explanation.
Problem A condition often identified as a result of multiple Incidents that exhibit
common symptoms. Problems can also be identified from a single
significant Incident, for which the cause is unknown, but which significantly
impacts service or Product availability.
Products
The products (which consist of Hardware and Software) described in
Section A of this Agreement.
Response Time
Commences when Customer reports an Incident to the Service Desk and
ends when a suitably qualified Tait Customer Support Engineer contacts
Customer.
Restoration or Resolution Means providing a fix, Workaround or replacement Product which re -
stabilises the System or Product (as applicable) and allows normal traffic
levels or functionality to resume.
Restoration Time Commences when Customer reports an Incident to the Service Desk and
ends when the Product or System is re-stabilized and carrying normal
traffic levels which may be via a workaround or replacement Product(s) as
applicable.
Second and Third Line Support The Support Services provided by Tait following the notification of an
Incident or Problem by Customer in accordance with its First Line Support
obligations.
Service Desk The single point of contact service desk between the Tait and the
Customer.
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Service Request A request from a Customer for information or advice, or for a Standard
change to the scope of the Support Services.
Site Means the sites set out in Section A of this Agreement.
Software Means any computer program, firmware or other software forming part of
the Products.
Supply Agreement The agreement between Tait and the Customer specifying the terms and
conditions for the supply of the Products and / or System.
Support Fee The support fee set out in Section A of this Agreement.
Support Services The combination of Service Desk Support, Hardware Support, Software
Support, Network Management Support and Emergency Support which the
Customer has elected to purchase and which are described in Section B of
this Agreement.
System The combination of Products described in Section A of this Agreement
forming a radio communications solution.
Tait Network Management System
(NMS)
The Tait supplied network management tool suite.
Term The term of this Agreement as specified in Section A.
Terminal Means a Products which is either a portable radio or a mobile radio
supplied by Tait under the Supply Agreement also known as a „subscriber
unit‟ in the communications industry.
Updates Updates provide Resolutions to Problems and Incidents and may include
minor enhancements to existing functionality.
Upgrades Upgrades provide new functionality which is available as part of a general
release of software. This excludes software developed specifically for the
Customer, which is priced on a project basis.
Warranty Means the warranty provided by Tait to the Customer in relation to the
Products under the Supply Agreement.
Workaround Reducing or eliminating the impact of an Incident or Problem for which a full
Resolution is not yet available. For example by restarting a failed
configuration item.
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Required list of critical spares to be held by the Customer
Tait Item Number Description Quantity Required
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blank.
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