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HomeMy WebLinkAboutbocc.con.049.2012 Rev. 08 -30 -11 jls COUNTY CLERK'S CONTRACT COVERSHEET CONTRACT #: 04q -2012 ORIGINATING DEPARTMENT: Communications PROCUREMENT OFFICER: Mark Gamrat PHONE #: 9703152181 PROJECT NAME: Reverse Emergency Notification System CONTRACTOR: Twenty First Century Communications. DOLLAR AMOUNT: $7,300.00 LINE ITEM # 119.35.00000.82370 CONTRACT EXECUTION DATE: 1/12/2012 CONTRACT END DATE: 1/12/2013 AUTOMATIC RENEWAL: ❑ YES ® NO TERM: 1 year, neweable ❑ BOCC AGENDA ITEM (Grants, IGA) ® STAFF AUTHORIZED SIGNATURE (Requires BOCC Signature) (Per Revised Procurement Code 7/2005) ❑ OVER $50,000 (Requires Section Leader & County Manager's Signature) ✓ CHECK PROCUREMENT TYPE: ❑ None ❑ Informal ❑ Formal ® Sole Source ❑ Emergency ❑ Outside Agency /State Bid ❑ Compliance with C.R.S. 8 -17 -5 -101, 102 as amended (Immigration Form) ❑ Exempt ® Contract Renewal ✓ CHECK CONTRACT TYPE: ) IQ 115111/ ® Services/Maintenance ❑ Employment ❑ License /Use ❑ Intergovernmental Agreement (Resolution Required) ❑ Lease ❑ Non -Profit ❑ Construction ❑ Quasi - Public (e.g. -AVH) ❑ Goods, Equipment, Supplies ❑ Grant Agreements (Notify Finance & Resolution Required) ❑ Other (e.g. revenue) ❑ Change Order /Contract Amendment (CO: 10% or $25K whichever is the lesser must have County Manager signature) All Contracts should be proofed and all exhibits and notices must be attached for the following: ✓ ® No Pages Missing ✓® All Other Blanks Filled In ✓ ® If Page Left Intentionally Blank — Note on Page ✓® All Exhibits Attached ✓ ® Page numbered consecutively ✓® All Legal Descriptions attached (if applicable) ✓ ® All Original Signatures Affixed ✓® Notice of Award/Notice to Proceed Attached (if applicable) ✓ ® All Dates Filled In ✓® Warranty (if applicable) ✓ ❑ Special Instructions for Finance Department: ✓ ® Authorized Procurement Officer's Name: Mark Gamrat BY CHECKING ABOVE AND ENTERING NAME, THE AUTHORIZED STAFF PERSON INDICATES THAT THE ATTACHED DOCUMENT HAS BEEN PROOFED AND READY FOR SCANNING. NOTE: CLERK'S OFFICE WILL KEEP ORIGINAL DOCUMENTS IN COMPLIANCE WITH COLORADO STATE ARCHIVES RETAINAGE SCHEDULE. ALL ATTACHMENTS MUST BE WITH THIS CHECKLIST! MASTER SERVICING AGREEMENT regarding the disputed portion within thirty (30) days from the This Master Servicing Agreement ( "Agreement") is date of invoice, otherwise Client will be deemed to agree to such entered into this lst day of January, 2012, (the "Effective Date ") charges and Provider will not be subject to making adjustments between Pitkin County Board of County Commissioners to charges or invoices. ( "Client ") and Twenty First Century Communications, Inc. 4. Maintenance of Service. Provider agrees to provide and { "Provider "). The parties hereby agree as follows: maintain the Services in a workmanlike manner customary for 1. Services and SOWs. The services are the automated and/or service providers in the industry. Provider does not warrant or live agent call services, business process services, collection guarantee in any way the results from the Services. Client services, conferencing services or other related services agreed agrees to provide and maintain systems and materials reasonably to in the applicable statement of work(s) (each an "SOW ") and required by Provider to perform the Services, including as provided by Provider (the "Services "). SOWs may be executed applicable, but not limited to: hiring profiles; scripts; program by Client and Provider or by Client and a Provider Affiliate (as content and materials; conferencing content; Client or third party defined in Rule 405 of the Securities Act of 1933) and must databases; forecasts; current process performance statistics; incorporate this Agreement by reference and in conjunction with Client or third party software, hardware, systems, routing and this Agreement shall form a separate agreement between Client network addresses and configurations; and key contacts for and Provider or between Client and the Provider Affiliate that problem escalation (collectively the "Client Systems and executes the applicable SOW. Client shall look only to the Materials "). Provider shall not be liable hereunder relating to Provider Affiliate that executes the SOW with respect to any the Client Systems and Materials including the failure by Client right or obligation with respect to such SOW. to timely provide the Client Systems and Materials. 2. Term and Termination, 5. Representations And Warranties. 2.1. Term. This Agreement will continue from the 5.1. Each party represents and warrants to the other that: (a) Effective Date until the expiration or termination of the latest- its execution and performance of this Agreement and the ending SOW. Each SOW will specify its duration (each an applicable SOW will not violate any provision of law, rule, "SOW Term "). The termination of any SOW shall not otherwise regulation to which such party is subject; and (b) such party will effect this Agreement or any other SOW, comply with all laws, rules and regulations pursuant to which 2.2, Termination of an SOW For Cause. Any SOW may such party conducts its business. be terminated as follows: (a) by either party upon the failure by 5.2. Each party represents and warrants to the other that: (a) the other party to perform any material obligation related to such it has all requisite corporate power and authority to execute, SOW that is not cured within thirty (30) days after receipt of deliver and perform its obligations under this Agreement and the written notice and demand for cure from the affected party; (b) appIicabte SOW; (b) the execution, delivery and performance of by either party upon the violation by the other party of any this Agreement and the applicable SOW have been duly applicable state or federal law, statute, rule or regulation in authorized by such party; (c) no approval, authorization or relation to its performance of the SOW; provided that such right consent of any governmental or regulatory authority is required to terminate shall only be available for 30 days from the time to be obtained by it in order for it to enter into and perform its that the non violating party is aware or should have been aware obligations under this Agreement and the applicable SOW; and of such breach; or (c) by Provider, upon fourteen (14) days (d) the signatory to this Agreement and the applicable SOW written notice if undisputed payments are in arrears. In addition, possesses all necessary authority to enter into the Agreement and Provider may take any or all of the following actions any time applicable SOW. undisputed payments are more than fourteen (14) days in arrears: 5.3. Client represents and warrants that: (a) the Client reports. spend the Services; or (ii) withhold data, materials or Systems and Materials, all representations to be made by Provider as a part of Client's programs, and the content, timing, 3. Charges. Client agrees to pay for the Services in recipients and nature of all programs (including outbound accordance with the rates set forth in the applicable SOW in communications and promotions and advertising to induce calls addition to all applicable taxes, fees and surcharges set forth on to Client's programs) will be in compliance with all laws, rules, Client's invoice. Provider may increase the rates on each twelve regulations; and (b) Client is solely responsible for the content (12) month anniversary of the applicable SOW by the CPI -U for and rights to use the Client Systems and Materials and all items, not seasonally adjusted, for Midwestern Size Class Provider's use of the Client Systems and Materials shall not B/C cities (CPI) for the same period. Any sum due Provider violate the rights of any third party or any law, rule or hereunder will be due and payable via electronic funds (ACH, regulation. Client specifically acknowledges and agrees that EFT or wire) thirty (30) days from the date of invoice. Invoices Provider has not and is not expected to provide Client with any will be transmitted electronically. Client will pay interest on all analysis, interpretation or advice regarding the compliance of past due sums at a rate which is the lesser of one and a half any aspect of Client's Materials or programs with any third party percent (1.5 %) per month, or the highest rate allowed by law. In rights or laws, rules, or regulations. Upon request, Client shall the event part of an invoice is in dispute, Client agrees to pay the provide reasonable proof of compliance with the provisions set undisputed portion of the invoice and make a note on the invoice forth in this section and Provider shall have no obligation to TFCC MSA.v11.18.10 TFCC CONFIDENTIAL Page 1 provide Services where Provider reasonably believes that Client Confidential Infonnation disclosed hereunder. In addition, a has not so complied. party shall not be considered to have breached its obligations by disclosing Confidential Information of the other party as 6. License, Subject to Client's compliance with the terms and required to satisfy any request of a competent governinental conditions of this Agreement, Provider hereby grants Client a body provided that, promptly upon receiving any such request non - exclusive license during the applicable SOW Term to use and to the extent that it may legally do so, such party advises the the Services set forth in the applicable SOW. Except as other party of the request prior to making such disclosure in specifically set forth herein, Provider or its suppliers retain all order that the other party may interpose an objection to such right, title, and interest, including all intellectual property rights, disclosure, take action to assure confidential handling of the relating to or embodied in the Services, including without Confidential Information, or take such other action as it deems limitation all technology, telephone numbers, web addresses, appropriate to protect the Confidential Information. software, or systems relating to the Services. Client agrees not to 8 Indemnlfication. reverse engineer, decompile, disassemble, translate, or attempt to j team the source code of any software related to the Services. 8.1. General Indemnity. Provider shall indemnify, defend Other than using the Services for Client's internal business and hold Client, its Affiliates and their officers, directors, purposes, Client may not resell the Services or otherwise employees and agents harmless from and against any and all generate income from the Services. third party claims of loss, damages, liability, costs, and expenses (including reasonable attorneys' fees and expenses) arising out 7. Confidentiality and Proprietary Information. of or resulting from a breach by Provider of any term of this 7.1. To the extent allowed by the Colorado Open Records Agreement or an SOW. Act, each party may disclose (the "Discloser") confidential and 8.2. Indemnification Procedure. The party claiming proprietary information ( "Confidential Information ") to the other indemnification shall: (a) notify the indemnifying party of any party (the "Recipient "). In each such case, the Recipient shall claim in respect of which the indemnity may apply; (b) hold such Confidential Information in confidence and shall not relinquish control of the defense of the claim to the disclose such Confidential Information except to a party's indemnifying party; and (c) provide the indemnifying party with Affiliates, employees or agents who have a need to know such all assistance reasonably requested in defense of the claim. The Confidential Information in order to perform such party's indemnifying party shall be entitled to settle any claim without obligations under this Agreement. Client's Confidential the written consent of the indemnified party so long as such Information shall include of all information relating to the trade settlement only involves the payment of money by the secrets or business affairs of Client including consumer data, indemnifying party and in no way affects any rights of the merchandising plans, marketing plans and product design and indemnified party. The indemnities set forth herein shall not information. Provider's Confidential Information shall include apply to the negligence of the indemnified party. the computers, systems and software operating the Service and 9. Miscellaneous. all documentation, development tools, phone numbers, know- how and data related thereto, and any derivative works thereof as 9.1. Entire Agreement and Integration. This Agreement, well as physical property, analytical procedures, techniques, in conjunction with the applicable SOW constitutes the entire skills, ideas, models, research, development, trade secrets or agreement between the parties to such SOW with respect to the business affairs of Provider, its Affiliates or their employees, subject matter of this Agreement and the applicable SOW and suppliers or agents. Neither party shall have any rights in the supersede all prior agreements, discussions, proposals, other party's Confidential Information and shall return or representations or warranties, whether written or oral. The destroy all such Confidential Information upon the termination Agreement and SOWs may be executed by fax, and/or in any of the applicable SOW or the request of the Discloser. number of counterparts, all of which shall together be considered Notwithstanding the foregoing, the parties acknowledge that an original and may be evidenced by a fax or scanned electronic Recipient shall not be required to return to Discloser or destroy (e.g. .pdf, .tie) copy. those copies of Confidential Information residing on Recipient's backup, disaster recovery, or business continuity systems and the 9.2. Notices. Any notice to be provided shall be in writing obligations hereunder with respect to such Confidential and shall be deemed given: (a) if by hand delivery, upon receipt Information shall survive until such Confidential Information is thereof, (b) if mailed, three (3) days after deposit in the United destroyed. States mail, postage prepaid, certified mail return receipt requested, or (c) if by next day delivery service, upon such 7.2. Notwithstanding any other term hereof, the term delivery, or (d) if by facsimile transmission, upon receipt of such "Confidential Information" shall not include information that: transmission, to the addresses or facsimile numbers set forth (a) was already in the lawful possession of the Recipient prior to below the signature block or to such other addresses or facsimile receipt thereof, directly or indirectly, from the Discloser; (b) numbers as either party may designate from time to time by lawfully becomes available to Recipient on a non - confidential written notice to the other party hereto. basis from a source other than Discloser that is not under an 9.3. Assignment. This Agreement and SOWs may not be obligation to keep such information confidential; (c) is generally assigned or transferred by a party thereto without the prior available to the public other than as a result of a breach of this Agreement by Recipient or its representative(s); or (d) is written consent of the other party therto, which consent shall not subsequently and independently developed by employees, be unreasonably withheld. Notwithstanding the foregoing, consultants or agents of the Recipient without reference to the Provider may freely assign this Agreement and SOWs to an West MSA.v 11.18. 10 WEST CONFIDENTIAL Page 2 Affiliate or to an acquirer of all or part of Provider's business or such party related to the Services. If any employee or agent of a assets, whether by merger or acquisition. party, as a result of active recruitment solicitation by the other 9.4. Waiver. No course of dealing or failure of a party to party, becomes employed by such other party within the time at defined above, such oter party agrees to ay the enforce strictly any term or provision or to exercise any right, t of such employment amount equal po seventy-five obligation, or option provided, will waive such term, provision, percent (75 %) of the employee's or agent's estimated income right, obligation or option. during the first year of employment. This paragraph does not 9.5. Independent Contractors. The Agreement and SOWs pertain to unsolicited individuals that voluntarily approach a are not a joint venture or partnership, and each party is entering party for employment or respond to general advertising. the relationship as a principal and not as an agent of the other. 9,11. T axes. Provider shall add to each invoice and Client The parties hereto agree that Provider is an independent shall pay any sales, use, excise, value - added, gross receipts, contractor in performing the Services. services, labor related, consumption and other similar taxes or 9.6. Choice of Law. This Agreement and SOWs shall be surcharges , however designated, that are levied by any taxing governed under the laws of Colorado without regard for its authority in connection with the provision or use of Services choice of law principles. Client agrees that any legal action under this Agreement or any SOW. If at any time during the involving this Agreement or SOWs in any way will be instituted Term of this Agreement or any SOW, Provider believes that it is in a court of competent jurisdiction located in Pitkin County, required by law to collect any new or additional taxes for which Colorado, and Client consents to jurisdiction of the state or Client would be responsible for paying, Provider shall notify Federal courts in the State of Colorado over Client's person for Client of such taxes, collect such taxes directly from Client and purpose of such legal action. remit such taxes to the appropriate governmental authority. If any taxing authority determines at any time that Provider has 9.7. Change Management. Either party may request changes incorrectly determined any tax liability regarding taxes for hanges or enhancements to the Services. In such event, the following procedure shall be followed by the parties (the which Client • responsible pursuant to this Agreement or any SOW Provider shall have the right to invoice Client for such "Change Policy"). The requesting party shall provide a written , taxes determined by such taxing authority to be due and owing. description of the change and the parties shall meet in good faith to discuss the change and any additional costs or other required 9.12. Severability. If any provision of this Agreement or the terrns and any such change shall only become effective upon applicable SOW is held invalid or unenforceable at law, such mutual agreement on a change order or amendment. For the provision shall be modified, rewritten or interpreted to include as avoidance of doubt, if the Agreement or an SOW otherwise much of its nature and scope as will render it enforceable and the allows either party to unilaterally alter the Services or any remainder of this Agreement and the applicable SOW will policies, rules or procedures applicable to this Agreement or the continue in effect and be valid and enforceable to the fullest SOW, either party may implement the Change Policy prior to extent. any such changes becoming effective or binding if such 9.13. No Third party Beneficiaries. This Agreement and unilateral change will cause time or cost impact to such party. SOWs are for the sole benefit of the parties to such SOW and are 9.8. Identification, Advertising & Publicity. Client agrees not intended to, nor shall it be construed to, create any right or that it will not identify Provider as the provider of the Services confer any benefit on or against any third party. to the media or any governmental, regulatory, or other official 9.14. Interpretation. "Including" means "including, without without prior notice to Provider and Provider's prior consent, limitation", and "days" refers to calendar days. This Agreement unless required by legal process, law, rule or regulation, in and each SOW is the joint work product of the parties thereto, which case Client shall still notify Provider of such requirement. and no inference may be drawn or rules of construction applied Except for materials already made public, neither party will against either party to interpret ambiguities. If any terms of this distribute any news releases, articles, brochures, speeches, or Agreement and an SOW conflict, the terms of the SOW will advertisements concerning this Agreement or SOWs, nor use the govern for that SOW only. No preprinted or form terms, other party's name or trademarks (or any variation thereof), g y' p re r p including on any purchase order, will apply. without the other party's prior written consent. Notwithstanding the foregoing, Provider may use Client's name and trademarks 9.15. Force Majeure. Neither party shall be liable for delays in a list of customers, or in connection with written sales or and/or defaults in its performance (other than Client's obligation promotional materials. to pay fees for Services performed) due to causes beyond its 9.9. Recording. Client agrees that all calls may be recorded reasonable control, including, but without limiting the generality or monitored by Provider at Provider's option. Such recording or of the foregoing: acts of god or of the public enemy; fire or monitoring shall not violate any state or federal la�v., explosion; flood; stability or availability of the Internet; the elements; telecommunication system failure; war; technology 9.10. Non- solicit, Without the prior written consent of the attacks, epidemic; acts of terrorism; riots; embargoes; other party, during the applicable SOW Term and continuing quarantine; viruses; strikes; lockouts; disputes with workmen or through the first anniversary of the termination of the applicable other labor disturbances; total or partial failure of transportation, SOW Tenn, neither party shall, and shall ensure that its utilities, delivery facilities, or supplies; acts or requests of any Affiliates do not, directly or indirectly, solicit or attempt to governmental authority; or any other cause beyond its solicit for employment any employees or agents of the other reasonable control, whether or not similar to the foregoing. party who are directly involved in carrying out the obligations of 9.16. Amendments. Each amendment, change, waiver, or West MSA.v11.18.10 WEST CONFIDENTIAL Page 3 discharge shall only be valid if made in writing by authorized representatives of all applicable parties. 9.17. Survival. All provisions of this Agreement or any SOWs which by their nature should survive termination shall survive termination including Sections 2, 3, 5, 6, 7, 8 and 9 of this Agreement. 10. Limited Warranty and Limitation of Liability. 10.1. EXCEPT AS EXPRESSLY PROVIDED HEREIN, PROVIDER MAKES NO EXPRESS OR IMPLIED WARRANTIES, AND PROVIDER EXPRESSLY DISCLAIMS ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON - INFRINGEMENT. PROVIDER EXPRESSLY DENIES ANY REPRESENTATION OR WARRANTY ABOUT THE ACCURACY OR CONDITION OF DATA OR THAT THE SERVICES OR RELATED SYSTEMS WILL OPERATE UNINTERRUPTED OR ERROR - FREE. 10.2. NO CAUSE OR ACTION WHICH ACCRUED MORE THAN TWO (2) YEARS PRIOR TO THE FILING OF A SUIT ALLEGING SUCH CAUSE OF ACTION MAY BE ASSERTED UNDER THIS AGREEMENT BY EITHER PARTY. 10.3. EXCEPT FOR THE PARTIES' INDEMNIFICATION AND PAYMENT OBLIGATIONS, NEITHER PARTY WILL BE LIABLE TO THE OTHER FOR ANY INDIRECT, EXEMPLARY, SPECIAL, PUNITIVE, CONSEQUENTIAL, OR INCIDENTAL DAMAGES OR LOSS OF GOODWILL, DATA OR PROFITS, OR COST OF COVER. THE TOTAL LIABILITY OF PROVIDER FOR ANY REASON, SHALL BE LIMITED TO THE AMOUNT ACTUALLY PAID TO PROVIDER BY CLIENT UNDER THE SOW APPLICABLE TO THE EVENT GIVING RISE TO SUCH ACTION DURING THE SIX (6) MONTH PERIOD PRECEDING THE EVENT GIVING RISE TO SUCH LIABILITY. THE LIMITS ON LIABILITY IN THIS SECTION SHALL APPLY IN ALL CASES INCLUDING IF THE APPLICABLE CLAIM ARISES OUT OF BREACH OF EXPRESS OR IMPLIED WARRANTY, CONTRACT, TORT (INCLUDING NEGLIGENCE), OR STRICT PRODUCT LIABILITY, AND EVEN IF THE PARTY HAS BEEN ADVISED THAT SUCH DAMAGES ARE POSSIBLE OR FORESEEABLE. West MSA.vl 1.18.10 WEST CONFIDENTIAL Page 4 IN WITNESS WHEREOF, The parties hereby execute and authorize this Agreement as of the date first set forth above. ASPEN/P1TKI OU TYEMER ENC EPHONE TWE ENTURY COMMUNICATIONS, SERVICE AT ORtT INC Authoriz Signature , Authori n ure .-../ f zfrfi e7 �rr y✓,g (�l� -t-' Ake-Tr Name Type or Printed Name Typed or Printed T lt 9� 4 ,,� 7 — l2 ce f3r 6e�rr" //z91 12- le Dated signed: Title Dat sign d: Address for Notices; Address for Notices: 506 E. Main St. Dept. C 11808 Miracle Hills Drive Aspen, CO 81611 Omaha, NE 68154 Attn: Mark Gamrat Fax 970 920 5339 Attn: General Counsel Fax: 402.963.1211 • West MSA.vl 1.18.10 WEST CONFIDENTIAL Page 5 TFCC COMMUNICATIONS SERVICES STATEMENT OF WORK No. 1 This is a TFCC Communications Services Statement of Work (this "SOW ") dated January 1, 2012 (the "SOW Effective Date ") to that certain Master Servicing Agreement dated January 1, 2012, (the "Agreement") between Twenty First Century Communications, Inc. and Pitkin County Board of County Commissioners ( "Client ") and the Agreement is incorporated by reference herein. Upon execution by Twenty First Century Communications, Inc. ("Provider ') and Client, this SOW forms a separate agreement between Provider and Client from any other SOWs. The terms of this SOW shall govern and control in case of conflict with the Agreement. Subject to the alterations and amendments contained in this SOW, Provider and Client ratify and confirm the Agreement as applicable to this SOW in all other respects. Provider and Client hereby further agree as follows: • 1. Definitions. Capitalized terms used in this SOW not otherwise defined as set forth in Schedule 2 hereto or as otherwise set forth herein shall have the definitions specified in the Agreement. • 2. Service Overview. Provider will operate, monitor and maintain the Platform in accordance with this Statement of Work and will accept calls presented to the Platform as defined by the Functional Requirements. Provider will also operate, monitor and maintain a multi-channel (i.e. phone, email, SMS, fax, etc.) communications solution that allows Client to deliver Content and Messages to Recipients in accordance with the Functional Requirements. Changes to the Functional Requirements or other changes to this SOW will be made from time to time by the parties through the creation of change orders mutually agreed to by the parties in the form of Exhibit A attached hereto (a "Change Order "). Change Orders will govern in case of conflict with this SOW. 3. Service Components • 3.1. Applications. The Applications developed and programs deployed by Provider for the Client are defined by the Functional Requirements. If requested by Client, and in accordance with the Change Control Management process, Provider will develop new Applications or programs or enhance existing Applications or programs as the needs of the Client's business change. 3.2. Hours of Operation. Provider will maintain Services Sunday through Saturday, 24 Hours a day 7 days a week, or as designated by the Client's Functional Requirements for individual Applications. 3.3. Interface to Client System(s). Subject to applicable programming fees, Provider will: (a) cooperate with Client and /or Client third party providers in developing specifications for the Interfaces; (b) design and implement the software for the Client Interface(s); and (c) cooperate with the Clients and/or Client providers in testing the Interface(s). 3.4. Client Cali Center or Third Party Provider. Provider will interact with any Client designated third party provider or Call Center as mutually agreed upon. Specific points of contact will be defined and maintained between all parties throughout the SOW Term. Client must participate in problem resolution between Provider and any designated third party or call center should conflict arise regarding the resolution of Application impacting conditions. Provider shall not be responsible for any actions or failure to act by such third party providers. 3.5. Monitoring, Administration & Reporting. Provider will provide near real time monitoring, administration, and standard reports to the Client on a near real time, daily, weekly and monthly basis detailing in the results of the Services as mutually agreed upon by the parties. If requested by Client, Provider will develop new reports or enhance existing reports as the needs of the business change in accordance with Change Management Process, TFCC SON Version 4.20.11 Confidential Page 1 3.6. Telecommunications Providers. Unless otherwise agreed to by the parties in writing, the network and telecommunication provider performing services in relation to this Statement of Work shall be AT &T. As agreed upon by the parties, Provider may be Customer of Record on the originating inbound toll free numbers supporting Applications. 3.7. Data Backup. Backup of data for 5.5 years is standard practice. • • 3.8. Business Continuity Plan and Procedures. At the Client's request the Provider's Business • Continuity Plan will be provided and will detail Provider's procedures for transition to backup hardware and facilities, ongoing disaster mode operations, and transition back to normal operations. 3.9. Maintenance. Client agrees that should Platform maintenance be necessary Provider may request a two -hour maintenance window each month that will be scheduled out of peak processing hours and at the mutual agreement of the parties. Provider will use commercially reasonable efforts to provide Client with a 2 -day advance notice prior to such maintenance. Client • must respond to Provider within 1- business day from date of receipt of such request with acceptance of maintenance window or it will be deemed accepted. Maintenance periods or activity will not be included in Performance Metrics. Notwithstanding the foregoing, Provider may perform emergency maintenance to the Platform in the event the Platform is at risk of material non - performance as long as notice to Client is provided to Client no later than 1 business day after the emergency maintenance has occurred. If Provider utilizes a third party to support any element of the Services, Provider will work with such third party to address maintenance requirements in accordance with the foregoing procedures; provided, however, that Provider may not always be able to dictate the schedule or notice with respect to such third party maintenance activities that may impact the Services. The parties agree that Client shall use commercially reasonable efforts to provide Provider with a 2 -day advance notice of Client's intention to perform maintenance on any Client managed system which supports the Services. Provider will respond to Client within 1 business day from date of receipt of notification to acknowledge the upcoming Client maintenance or to notify the Client if Client's maintenance activity may negatively affect call processing or it will be deemed accepted. 4. Responsibilities of Parties. 4.1. Provider will: 4.1.1. Provide personnel to manage all aspects of the Statement of Work pertaining to Provider. 4.1.2. Implement Applications and programs in accordance with the Functional Requirements as modified by any applicable Change Orders. 4.1.3. Provide applicable circuit information including such items as DNIS and routing assignments, number tracking and inventories, number turn up, and routing plan development to enable completion of provisioning by Client, if applicable. 4.1.4. Provide and maintain the software Interface between the Platform and all Interface providers under the direction of Client as defined by Functional Requirements. This may include redundant network connectivity between Provider and Client Interface destination as determined by Parties and documented in the Functional Requirements. 4.1.5. Deliver Acceptance forms to Client for Acceptance of the call flow, script, reports, and Application testing before an Application or Change Order Goes Live, 4.2. Client will: 4.2.1. Provide appropriate personnel and contact information to work in concert with Provider including the maintenance of a list of Client representatives: (a) authorized to deliver TFCC SOW Version 4.20.11 Confidential Page 2 /1 , Acceptance or execute Change Orders; (b) who should be contacted during business hours and after hours in the event of an emergency. 4.2.2. Participate in regularly scheduled status calls in support of Implementation schedule, Client Application deliverables and all life cycle support activities. • 4.2.3. Manage any necessary changes to Interfaces to support the Functional Requirements. 4.2.4. If Client is COR, Client will manage all pre and post deployment coordination for ordering and provisioning of carrier circuits including advanced features and any subsequent changes to the foregoing that may occur from time to time. 4.2.5. Complete and/or coordinate any necessary switch configuration changes at Client call centers or Client designated third party providers. 4.2.6. Be responsible for providing and maintaining the hardware and software necessary for Provider to fulfill Functional Requirements relating to Interface connectivity from the Client or a Client designated third party provider. i 4.2.7. Submit all necessary business requirements in order to formalize the Functional ; Requirements, including all business rules, call flows, scripts, reporting requirements and Go -Live Dates. 4.2.8. Complete testing to confirm that Application call flow, script, and reports are in compliance with Functional Requirements and sign Acceptance forms and Change Orders as set forth • ' herein. Any Acceptance form or Change Order not executed or rejected by Client within 5 ' business days of request by Provider shall be deemed Accepted by Client. 4.2.9. Provide all Content required for the Message to be sent by Provider for Client. Notwithstanding any other provision of this SOW or the Agreement, Provider and Client acknowledge . and agree that (i) Provider uses its Platform to provide the Services to the Client and Client receives the Services resulting from such use, (ii) Provider puts the Platform into service and controls the Platform and (iii) any rights of review and approval granted to Client hereunder relate to program content and the performance of Applications in accordance with the Functional Requirements, but not the Platform. • 5. Term. This SOW shall be effective on the SOW Effective Date and shall have an initial term of 36 months from the initial Go -Live Date (the "initial Term "). This SOW shall automatically renew for successive 12 month terms after the Initial Term (each a "Renewal Term ") and the current term shall be referred to as the "SOW Term" herein. 6. Termination. The SOW may only be terminated in writing by either Party if notice is received no less than ninety (90) days prior to the end of the SOW Term which termination will be effective at the end of the then current SOW Term (a "Termination Without Cause "), or as follows (each a "Termination For Cause "): 6.1. By either party upon the failure by the other party to perform any material obligation hereunder that is not cured within thirty (30) days after receipt of written notice and demand for cure from the affected party. 6.2. By either party upon the filing of a petition in bankruptcy or for re- organization by a party or the filing of a petition in bankruptcy for reorganization against a party by a third party which is not dismissed within ninety (90) days; an assignment by a party for the benefit of its creditors, or the appointment of a receiver, trustee, liquidator or custodian for all or a substantial part of the party's assets; or the assignment or encumbrance by a party of this SOW contrary to the terms hereof. 6.3. By either party upon the material violation by the other party of any applicable state or federal law, statute, rule or regulation in relation to its performance of this SOW; provided that such right to • TFCC SOW Version 4.20.11 Confidential Page 3 C' • terminate shall only be available for thirty (30) days from the time that the non - violating party is aware or should have been aware of such breach. 6.4. By Provider, upon fourteen (14) days written notice if undisputed payments are in arrears. In addition, Provider may suspend the Services any time undisputed payments are fourteen (14) days in arrears. 7. Effect of Termination. In the event of any termination hereunder Client shall compensate Provider for all Services provided and costs incurred in accordance with this SOW as well as all MC fees that may be due. Except for a Provider Termination For Cause, Provider shall, upon Client's reasonable request • during a period not to exceed sixty (60) days (the "Termination Assistance Period ") after the Termination of this SOW, provide the Termination Assistance Services. The quality and level of performance during the Termination Assistance Period shall not be degraded. During the Termination Assistance Period, Provider shall (1) answer reasonable questions from Client regarding the terminated Services on an "as needed" basis and (2) deliver to Client any remaining Client owned reports and documentation relating to the terminated Services still in Provider's possession. During the Termination Assistance Period, Client shall pay the fees set forth herein for Services within the scope of this SOW and Provider's then current standard rates for services requested outside the scope of this SOW. S. Minimum Commitment. From and after the earlier to occur of the Go Live Date or January 1, 2012, Client shall meet the following minimum commitment: $0 per month (the "MC ") during the SOW Term. At the end of each month during the SOW Terra, Client agrees to full payment of the shortfall resulting from Client's failure to meet the MC and any such shortfall shall appear as a line item on Client's invoice. All minutes billed Client for the Services will go towards the MC. Any taxes, training charges, ancillary charges, recording, monitoring, storage or surcharges of any kind will not apply towards the MC. Upon any termination of this SOW for any reason other than a Termination For Cause by Client, Client shall pay the MC fees due for each month remaining in the SOW Term within thirty (30) days of such termination. The parties agree and acknowledge that Provider has made pricing concessions based on the provisions agreed to in this SOW and that any shortfall payments due under this SOW are a fair approximation of the damages that would be caused to Provider and does not • constitute a penalty. 9. Responsibility for Content, Transmitting Messages, and Accounts. Client represents and warrants that: (a) it is solely responsible for the Content and it has the Iegal right to use all Content and send all Messages to the Recipients (including obtaining any required consents from the Recipients) and the content, timing and purpose of all Messages, and Client's campaigns and programs are in compliance with all applicable laws, rules and regulations; (b) it is the transmitter of all Content and Messages and Provider is merely acting at Client's direction as a technology conduit for the transmission of the Content and the Messages; (c) Provider's use of the Content shall not violate the rights of any third party or any law, rule or regulation; (d) it has obtained prior express consent to contact each cell phone number delivered by Client to Provider in connection with the provision of the Services; (e) the Message will not involve any contacts initiated to induce the purchase of goods or services or to solicit a charitable contribution; and (f) Client will not transmit or allow to be transmitted any Content or Messages that: (i) it does not have a right to make available under any law or under contractual or fiduciary relationship; (ii) are false, inaccurate, misleading, unlawful, harmful, threatening, abusive, harassing, tortuous, defamatory, vulgar, obscene, libelous, invasive of another's privacy, hateful, or racially, ethnically, or otherwise objectionable; harmful to minors in any way; (iii) infringe any patent, trademark, trade secret, copyright, or other proprietary rights or rights of publicity or privacy of any party; (iv) utilize any unsolicited or unauthorized advertising, promotional materials, "junk mail ", "seam ", or any other forms of solicitation; or (v) interfere with or disrupts the Services or servers or network operator networks. Upon request, Client shall provide reasonable proof of compliance with the provisions set forth in this section and where Provider reasonably believes that Client may not have TFCC SOW Version 4.20.11 Confidential Page 4 • complied with such provisions or with all laws, rules and regulations, Provider may, at its option (A) scrub all numbers against any appropriate data base deemed necessary to remove all cell phone numbers or (B) suspend the Services. To the extent permitted by law, Client shall indemnify, defend and hold Provider, its affiliates and their officers, directors, employees and agents harmless from and against any and all claims of loss, damages, liability, costs, and expenses (including reasonable attorneys' fees and expenses) arising out of or resulting from: (1) Provider following Client's instructions in sending the Messages or any breach of its obligations in this section; (ii) Client's failure to obtain the required consent to contact each of the cell phone numbers delivered by Client to Provider , in connection with the provision of Services or the failure of such consent to comply with any law, rule or regulation; or (iii) Client's failure to comply with any third party rights or law, rules or regulations applicable to Client's systems, materials or programs relating to the Services. 10. Fees. In consideration of Provider providing the Services, Client shall pay to Provider fees in U.S. Dollars, to a location in the United States of America designated by Provider, based on the pricing set forth in Schedule 1 hereto for the Services. On each twelve (12) month anniversary of this SOW, the parties agree that the pricing shall be increased by the CPI -U for all items, not seasonally adjusted, for Midwestern Size Class B/C cities (CPI) for the same period and such rate increases shall appear on Client's invoices in accordance with this SOW. IN WITNESS WHEREOF, Provider and Client have each caused this SOW to be signed and delivered by its duly authorized officer, all as of the date first set forth above, TWEN • o .' T CENTURY ASPEN/PITKIINCOUNTY EMERGENCY CO .. IONS, INC, TELEPHON - 'VICE AUTH �: '1I Y B . _iu B r v i� y ' Name: ' `iou&' b. : !3 M Name: y/ 0 + v► Title: V; c 41.-- WI -'r Title: C HI 1 F" 1 O L D`-" TMCC SOW Version 4.20.11 Confidential Page 5 V8 1 1 Schedule 1 Fees Notification Services I. Annual Pricing Plan Annual recurring usage fee (Note 1) $7,300 Annual weather alerts recurring fee (Note 2) $1,059 Inbound and outbound calls $0.25 /minute Email No Charge Fax $0.24 /page Pages $.05 /attempt SMS Notification -- one way $.05 /attempt SMS Notification — two way $.06 /attempt Notes: 1. Usage charges will be deducted at the listed rates until the annual fee is exhausted. Any unused usage at year end will expire and may not be carried over to subsequent periods. Usage in excess of the annual recurring fee will be charged at the listed rates. 2. Listed usage rates apply. II. Additional Usage and Other Charges Conferencing bridge --- direct bridge -on- the -fly $0.24 /minute Conferencing bridge -- in or out redirect to toll free $0.21 /minute Conferencing bridge — in or out redirect to toll (international) $0.36 /minute Redirect to client call center /client bridge (toll free) $0.09 /minute Redirect to client call center /client bridge (toll) $0.19 /minute Live call center support services (Note 2) $0.90 /minute Commercial Telephone Database — Initial $0.03 /record Advance Speech Recognition (ASR) (Note 3) $0.05 /minute Commercial Telephone Database --- Changes $0.04 /record Custom programming charge $180.00 /hour Training costs (Note 1) $100.00/hour Weather Alert Installation Charge $1,000.00 Unlimited weather alerts ($1,000 minimum) $0.10 /recipient TFCC SOW Version 4.20.11 Confidential Page 6 Notes: 1. Training via web cast is provided at no cost. This fee is for additional training beyond that training noted above, and for training associated with Live Call Center support services. • 2. For special projects, Twenty First Century Communications will provide live call center operators. The per - minute charge does not include the initial training of live call center operators and personnel. Live Call Center Support Services can be provided independently, or in conjunction with other support services. 3. Voice notification calls include support for dual- tone - multi - frequency (DTMF), also known as touch -tone, telephone keypad recognition and text -to- speech (TTS) services (synthesized speech for speaking retrieved information to a called party). Advanced Speech Recognition (ASR) (for collecting spoken responses from the called party) is incremental to the standard minute rates and will apply to the entire call length including any call bridging. 4. Usage charges for voice and facsimile notifications are for calls placed to domestic fixed line or mobile devices that operate under US rate plans including Guam, Northern Mariana Islands, Puerto Rico, U.S. Virgin Islands, and American Samoa, and excluding Canada. A mobile device can be in the US or roaming outside of the US. Calls for domestic phones (fixed or mobile) will be billed in one (1) second increments with a thirty (30) second minimum for each call connected by Provider's IVR platform including operator intercepts. Connect time does NOT include call set -up, the time associated with logging call information or busy ring/no answers. Fees for calls to fixed or mobile devices registered in countries outside of the US, including Canada, are included in Appendix A to this Schedule. 5. Email and Short Message Service (SMS & FTEU SMS) notifications are billed per mobile terminated (MT) message attempted regardless if the end recipient acknowledges receipt or actually reviews the sent content. When two -way is enabled, notifications are billed on a per mobile terminated (MT) message attempted regardless if the end recipient acknowledges receipt or actually reviews the sent content, and the per mobile originated (MO) is received by the platform. Domestic SMS Ancillary F`ee's Unit of Issue Price Generic SMS — Short Code Annual Rate $8,000 Administration: Should Client choose to use TFCC's Short code or for TFCC to gain a short code on Client's behalf the following rates will apply. Vanity Short Code Annual Rate $16,000 SMS — Short Code Administration: One One — time $2,500 time set up fee of Short Code when TFCC is administering the short code. SMS Initial Set up — Application Lritial Set up $13,000 development and Implementation of the program on behalf of Client. Ongoing development will be bid based on time and cost estimates based on the "custom development" rates as stated above. `v TFCC SOW Version 4.20.11 Confidential Page 7 • • SCHEDULE 2 Definitions 1. "Acceptance" means written notification from the Client that the Application or Change Order meets the Functional Requirements and such Application or Change Order should Go -Live on the Platform. 2. "Advanced Speech Recognition" or "ASR" means the ability for a caller to speak directed dialogue within the 1VR Application to navigate within the Application. 3. "Answer Supervision" means the response provided by the Platform when it accepts a call offered to it by the carrier network. 4. "Application" means the unique software for a program associated with a defined set of Functional Requirements. 5. "Business Continuity Plan" means the formal plan maintained by the Provider detailing the facilities, procedures and personnel necessary to respond to an unplanned failure which significantly impairs the Platform. 6. "Change Control Management" means the formal process by which modifications to the Functional Requirements for an Application on the Platform or other supporting infrastructure are formally executed to ensure mutual approval, communication and notification between all parties. The Change Control Management process shall be as follows: upon receipt of written requests for change, Provider will provide a written time and cost to Client subject to the fees as defined by this SOW and shall only proceed with such change if a Change Order is approved by the parties. 7. "Change Order" means a document executed by the parties that modifies existing, approved Functional Requirements or other supporting infrastructure for an Application on the Platform. 8. "Content" means personalized content made available by Client. 9. "Customer of Record" or "COR" means the party responsible for inbound long distance charges, toll free transport, and related advanced features required by this SOW, including responsibility for the provisioning and troubleshooting of carrier services and features. 10. "DTMF" means Dual Tone Multi- Frequency. 11. "Functional Requirements" means the set of written documents including applicable Change Orders mutually approved by the Client and Provider associated with each Application that defines the features, functionality, call flow, business rules, Script, reporting and Go -Live Date for each Application. The Functional Requirements become the official, defining documents upon which Application code is created, test plans are developed and validated and performance metrics are measured. I2. "Go - Live Date" means the date on which a Client Application or Application Change Order is moved to production on the Platform after Provider receives final, written Acceptance from Client. 13. "Implementation" means the initial set - up process by which a new Application is designed, developed, tested and ultimately Goes Live on the Platform. 14. "Interface" means the process associated with connecting a device or system on the Provider Platform to a device or system outside the Provider Platform for the purpose of exchanging data TFCC SOW Version 4.20.1 1 Confidential Page 8 in accordance with Functional Requirements. The devices or systems may be resident within a Client premise or at a Client designated third party premise. 15. "1VR" means an Interactive Voice Response unit or units. 16. "Messages" means the messages transmitted by Provider on behalf of Client. 17. "Performance Metrics" means the quantifiable set of metrics by which the Services delivered by the Provider as set forth in Schedule 1, incorporated herein by reference. Performance Metrics are reported and measured on a monthly basis. 18. "Platform" means the shared standard hardware, software, and facilities used by Provider to provide automated services for its clients including but not limited to interactive voice response units, telecommunications access equipment, database servers, communication servers (to remote sites), LAN/WAN infrastructure, and power infrastructure, but shall not include anything provided by or through Client or its third party providers. 19. "Recipients" means Client's customers, partners or other recipients of Content or Messages. 20. "Script" means the documentation detailing the voice slots and associated verbiage for the Application. 21. "Services" means the services set forth in this SOW. 22. "SOW Effective Date" means the date set forth in the introductory paragraph of this SOW. 23. "Usage Charges" means the charges associated with any call received or made by the Platform upon which an Answer Supervision response has been returned by the Platform to the carrier network. • TFCC SOW Version 4.20.1 I Confidential Page 9 1� EXHIBIT A Forrn of Change Order Pitkin County Board of County Commissioners — Change Order • This Change Order is issued pursuant to that certain Statement of Work between Twenty First Century Communications, Inc. ( "Provider ") and Pitkin County Board of County Commissioners ( "Client ") dated 20 Application Name: Project No. Date of Priority: Request: Name of Requestor: Desired Implementation Date: Solution Description: Solution Scope: Estimated Effort Summary Complexity: Total Effort: Duration: Project Governance: The following are prerequisites to finalizing project milestone dates: 1. A project start date will be determined once Provider receives signature from Client on this Change Order. 2. Provider will then work with Client to confirm detailed specifications. 3. A project delivery date will be determined once Provider receives sign -off from Client on business requirements. Development / Setup Fees: IN WITNESS WHEREOF, Provider and Client have each caused this Change Order to be signed and delivered by its duly authorized representative. Pitkin County Board of County Commissioners Twenty First Century Communications, Inc. By: By: Print: Print: Title: Title: Date: Date: TFCC SOW Version 4.20.11 Confidential Page 10 1� •