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<br />Support and Managed Services Agreement
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<br />aggrieved party may suspend performance of .its obligations under this
<br />Agreement or any Order placed hereunder during the cure period for any
<br />-reach described above, (C) NextiraOne reserves the right to suspend
<br />erformance under this Agreement or an Order Form if, in NextiraOne's
<br />.jlediscretion, required by regulation,· statute, judicial action or other
<br />npplicable legal requirement. (D) Termination of this Agreement shall
<br />not relieve either party of its respective obligatioTls to comply with all
<br />terms of this Agreement that expressly call for performance prior or
<br />subsequent to the termination date, including without limitation, the
<br />parties' respective obligations to protect proprietary and confidential
<br />information.
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<br />14. CONFIDENTIALITY. The City of San Marcos is governed by
<br />the Texas Public Information Act ( the "Act"), Chapter 552 of the Texas
<br />Government Code. This Agreement and all written information
<br />generated under this agreement may be subject to release under the Act.
<br />The Consultant shall not make any reports, information,. data, etc.
<br />generated under this Agreement available to any individual or
<br />organization without the written approvai of the City. Additionally; in the
<br />course of performance under this Agreement, NextiraOne and Customer
<br />may be exposed to the other's proprietary information, including, but not
<br />limited to, trade secrets and information contained in or relating to data,
<br />business information, and other documents or information which either
<br />party may designate as confidential (the "Confidential Information"). To
<br />the extent allowed by law, during the Term of this Agreement and at all
<br />times thereafter,each party agrees to hold in strictest confidence and not
<br />to disclose, fumish, communicate, rnake accessible to any person or use
<br />in any way for that party's own Or another's benefit any of the other
<br />party's Confidential Information. The parties shall return or destroy all
<br />information designated confidential upon termination or expiration of this
<br />Agreement, which occurs first.. The above limitations on disclosure and
<br />use shall not apply to information designated confidential which: (a) was
<br />in the public domain at the tirne It was received; (b) becornes generally
<br />known to the public through disclosure by a source other than the
<br />-receiving party; (c) was known to. the receiving party before the
<br />information was received from the disclosing party; (d) is disclosed to the
<br />'eceiving party, without restriCtion, by a third party having the lawful
<br />'ight to disclose the information; (e) was independently developed; or (f)
<br />is information required by law to be disclosed, provided the disclosing
<br />party gives notice of such required disclosure as soon as practicable prior
<br />to such disclosure. The parties agree that any violation of these
<br />provisions regarding confidentiality wi1l result in irreparable injury to the
<br />other party, Consequently, each party agrees that in the event of any
<br />violation öf the provisions of this Section 14, a. restraining order and
<br />injunction may be issued against it. The preceding sentence shall not,
<br />however, be construed as prohibiting either party from pursuing any other
<br />remedies available to it for such breach or threatened breach, including
<br />recovery of money damages 'from the other party. The parties agree to
<br />waive any bond requirement for enforcement of this provision.
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<br />15. FORCE MAJEURE. NextiraOne's non-performance or delay
<br />shall be excused to the extent the failure or delay in performance is the
<br />result of events beyond NextiraOne's reasonable control, including,
<br />without limitation, strikes, power surges or failure, fire, water,
<br />governrnental action, acts of God, including, without limitation,
<br />earthquakes, rain, floods or lightning . (unless Customer has purchased
<br />NextiraOne Electric Surge Protection coverage for lightning and power
<br />surges as delin.eated in the applicable Service Plan); acts of civil or
<br />military authorities or public enemy; delays of suppliers, subcontractors,
<br />power company, local exchange cornpany, or Internet carrier or
<br />telecommunications orservice provider issues.
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<br />16. NOTICES. Notices shall be in writing and will be deemed given
<br />when delivered in person; or when sent via facsimile with confirmation or
<br />overnight courier with confirmed delivery. The respective addresses of
<br />the parties for notice are: (i) to Customer: at the address indicated on the
<br />Order Form; or, (ii) to NextiraOne: for billing issues to NextiraOne, Attn:
<br />..Corporate Billing, 2800 Post Oak Blvd" Ste. 200, Houston, TX 77056-
<br />4311, and for all other matters to NextiraOne, Attn: General Counsel,
<br />i2800 Post Oak Blvd., Ste. 200, Houston, TX 77056-4311. Customer shall
<br />¡notify NextiraOne of any changes to its address.
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<br />17. INSURANCE. NextiraOne will procure, pay for and maintain
<br />insurance in fùll force and effect with insurance companies authorized to
<br />do business in the State of Texas, covering all operations under this
<br />Agreement, whether performed by NextiraOne or its agents,
<br />
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<br />subcontractors, or employees. Before commencing the work Ncxtira()nc
<br />wil1 furnish to the Customer a certificate or certifÏcates in a form
<br />satisfactory to the Custorner, showing that NextiraOne has complied with
<br />this paragraph. All certificates will provide that the policy will not be
<br />cancelled or materially altered until at least 30 days written notice has
<br />been given to the Custonler, and will name the Customer as anadditiunal
<br />insured on all coverages except workers' compensation and prolcssll)nal
<br />liability. The kinds and minimum. amounts of insurance required are as
<br />follows:
<br />
<br />.A. Workers' Compensation Insurance in accordance with the
<br />provisions of the Workers' Compelisation Act of the State of Texas.
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<br />B. Commercial General Liability insurance with a combined single
<br />limit of $500,000.00 for each occurrence and $500,000.00 in the
<br />aggregate.
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<br />C. Motor Vehicle liability insurance in an amount not less than
<br />$250,000.00 for injuries to anyone person, $500.000.00 on account of
<br />anyone accident and in an amount. of not less than $250,000.00· for
<br />property damage.
<br />18. GENERAL PROVISIONS. (A) Assignment. Except 1<')1' an
<br />assignment to a parent, subsidiary, affiliate, or entity which acquires all or
<br />substantially all of a party's assets, in which case only prior written notice
<br />is required, the final Agreement is not assignable by either party without
<br />the prior written consent of the other party. Such consent shall not be
<br />unreasonably withheld. Any attempt by a party to assign any of tbe
<br />rights, duties or obligations under this Agreement without consent. when
<br />consent is required, will, at the non-assigning party's option, be deemed
<br />void or a material default or accepted in the non-assigning party's sole
<br />discretion.
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<br />(B) Binding ·Effeèt. This Agreement shall be binding upon and shall
<br />inure to the benefit of the parties and their respective successors and
<br />permitted assigns. (C) Waiver. A party's waiver of any default will not
<br />operate as a waiver of imy contemporaneous or subsequent defàult. The
<br />City's execution of and performance under this Agreement shall not act
<br />asa wavier by the City of any immunity from suit or liability to which it
<br />is entitled under Texas law. (0) Enforcement. Any party to this
<br />Agreement who is the prevailing party in any legal proceedings to enlÒrcc
<br />the terms of this Agreement will be entitled to recover court costs and
<br />reasonable attorney fees tì'om the non-prevailing party. (E)
<br />Severability. If any Court tÏnds any provision of this Agreement to be
<br />void, unlawfùl or unenforceable under any applicable statute or other
<br />controlling law, such provision shall be deemed severed and the
<br />rernainder of this Agreement shall continue in full force and efTect. (F)
<br />Credit Approval. Customer agrees that executing the Agreement or an
<br />Order Form is authorization for NextiraOne to run a credit check through
<br />a standard credit reporting service or other service. to aid in NextiraOne's
<br />evaluation of its willingness to provide credit for the transaction
<br />described in an Order Form or for future transactions. Additional
<br />information may be requ~sted from Customer to assist in the decision to
<br />extend credit, and Customer.agrees to provide such additional
<br />information. The decision to extend credits is in NextiraOne's sole
<br />discretion. (G) Governing Law. This Agreement shall be governed by
<br />the laws of the State of Texas. This Agreement is to be performed in Hays
<br />County and exclusive venue for any legal dispute arising under this
<br />Agreement is in Hays County, Texas. (H) Execution. This Agreement
<br />may be executed contemporaneously in one or more counterparts, each or
<br />which shall be deemed an original, but which together shall constItute one
<br />instrument. In.addition, the parties may rely on a tàcsimile transmission
<br />of the other party's authorized signature to bind the other party
<br />Customer agrees to send an original to NexliraOne. (I) Publicity. Neither
<br />Customer nor NextiraOne shall issue a news releas~, PUblic
<br />announcement, advertisement, or other form of publicity concellling the
<br />existence of the Agreement, the Equipment or the Maintenance to be
<br />provided hereunder without obtaining the prior written approval of the
<br />other party. Failure of either party to comply shall permit thc other party
<br />to immediately terminate the Agreement, in addition to any and all other
<br />rights and remedies the other party may have at law or equity,
<br />Furthermore, each party agrees to work in good làith with the other party
<br />regarding any potential news release, publie announcement.
<br />advertisement, or other form of publicity coneerning the existence 01' the
<br />Agreement, the Equipment or the Maintenance Services. (J) 1\'011-
<br />Solicitation and Non-Hil·e. Customer, including its subsidiaries and
<br />affiliates, shall neither directly nor indirectly solicit, hire or contract with
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<br />CitySanMarcosCN62I 0-04rcr7-12-04
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<br />NextiraOne Confidential
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