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HomeMy WebLinkAboutRes.3036.10-17-2016 BILL NO. 16-189 ORDINANCE NO. je93td A RESOLUTION AUTHORIZING THE CITY MANAGER TO EXECUTE AN AGREEMENT WITH JOHNSON CONTROLS, INC. , FOR ACCESS CONTROL SOFTWARE BE IT RESOLVED BY THE COUNCIL OF THE CITY OF CAPE GIRARDEAU, MISSOURI, AS FOLLOWS : ARTICLE 1 . The City Manager, for and on behalf of the City of Cape Girardeau, Missouri, is hereby authorized to execute an Agreement with Johnson Controls, Inc. , for access control software at various city facilities, in the City of Cape Girardeau, Missouri . The Agreement shall be in substantially the form attached hereto as Exhibit "A", which document is hereby approved by the City Council, and incorporated herein by reference, with such changes therein as shall be approved by the officers of the City executing the same . PASSED AND ADOPTED THIS /iW' DAY OF , 2016. 75L- 6.......—•—•.., Harry E. ediger, Mayor ATTEST: truce Taylor""Deputy City Clerk i GgF , Z.i�cy •;', r [ t,0 ` siIr� /cepC CIJHj i l baa ' ../ Johnson Controls, Inc. 2280 Ball Drive St. Louis, MO 63146 Tel. 314-569-1570 FAX 314-569-1394 Johnson �JQa Controls PROPOSAL Date: October 12, 2016 To: City of Cape Girardeau 401 Independence Cape Girardeau, MO 63703 Attn: Anna Kangas Project: City of Cape Girardeau P2000 SMS Thank you once again, for the opportunity to meet your building service needs and for the confidence you have placed in us. You are a valued customer of Johnson Controls, Inc. Our goal is your complete satisfaction. Please call on us whenever we can be of further assistance. Per your submitted RFP Bid Requirements and Addendum 1, JCI's understanding of the locations in which we identified the requested scope of work incorporated within this project, I am respectfully enclosing the following proposal, costing breakdown, and project information. Our goal is to be your partner through the process and allocate the necessary resources and coordinate with you to insure that we are in compliance with all your needs, including schedule requirements. We look forward to continuing our partnership. We look forward to working with the City of Cape Girardeau. Sincerely, onClark Account Representative Secuirty&Fire Q Systems&Services—North America ohri's on COntro s Johnson Controls,Inc. St.Louis Area Direct:314-812-4533 Fax:314-569-1394 Email:Traonna.D.Clark@JCI.com JCI.com Scope of Work: Johnson Controls, Inc. (JCI)will install the P2000 Security management system (SMS) at 4 locations for the City of Cape Girardeau; Police Station, Fire Station 1, Fire Station 2 and Fire Station 4. The P2000 SMS system will have 3.14 Professional Software loaded on an owner provided server at Police station and workstations at each location. This will consist of: • Server o [1] P2000 SMS 3.14 Professional Software o [1] P2000 Milestone Integration software o [1] P2000 Web Situational • Workstation(s) o [1] P2000 SMS 3.14 Professional Workstation software for operator o [1] P2000 Video Imaging Software for badging workstation for badge printer The system software will be installed per local and national codes. QT Part Number Description Software 1 P2K-SW-PRO314 P2000 3.14 Professional Software 1 P2K-DV-MILE314 P2000 Milestone 1 P2K-SW-VI314 P2000 Video Imaging 1 P2K-SW-SA314 P2000 Web Situational 1 P2K-SW-SSAPRO SSA Professional 1 P2K-SW-SSADV SSA For Digital Video Hardware 500 S74-OH-BLANK Black HID iClass 2K 34B Cards 1 P3301-BUND ZXP Single Sided Badge Printer Labor 24 JC/ Labor to Install Software for P2000 Sell Price: $9,112.25 (IMPORTANT: This proposal incorporates by reference the terms and conditions on Appendix A.) This proposal and alternates listed below are This proposal is valid until 12/31/2016 hereby accepted and Johnson Controls is authorized to proceed with work; subject, however to credit approval by Johnson Controls, Inc., Milwaukee, Wisconsin. City of Ca Girardeau Johnson Controls, Inc. Pur er ompany Name �i Si a re ignature Name: Name: Traonna Clark Title: JU Mana5e r Title: Account.Rep. Security& Fire Date: PO#: Appendix A 1. Pricing for annual software maintenance and support,for a minimum of 5 years. Indicate frequency of software upgrades. a. Software with Labor i. Price for annual software upgrades with labor to deliver the software support agreement.JCI will have a technician come to the site to download software on the dedicated server and client workstations. We will perform a verification test to make sure the software was downloaded correctly and go over with owner new features that is on the latest software. 1. Annual Pricing: CST Part Number Description 1 P2K-SSV-SSACUNL SSA Professional 1 P2K-SW-SSADV SSA Digital Video 1 Labor JCI Labor to Install Software YR Price 1 2 See attached SSA 3 See attached SSA 4 See attached SSA 5 See attached SSA * Pricing is included in base bid of software package Exclusions& Clarifications: 1. All work performed Monday—Friday 08:00 A.M.to 5:00 P.M. 2. All work and materials will have a warranty of one year 3. JCI will be providing the above described security/life safety improvements. 4. Network connection to be provided by others. 5. 120V Power at electrical closet locations must be provided by owner. 6. Installation and wire pulling is not included 7. JCI will not be providing any fire alarm disconnections if required.This shall be provided by others. 8. Overtime labor is not included 9. JCI will provide acceptance testing on each device with customer, for final sign off when applicable. 10. Owner must provide approved server and workstation that are compatible with P2000 SMS 3.14 Professional TERMS AND CONDITIONS By accepting this proposal,Purchaser agrees to be bound by the following terms and conditions: 1. SCOPE OF WORK.This proposal is based upon the use of straight time labor only. Plastering, patching and painting are excluded."In-line"duct and piping devices, including, but not limited to, valves, dampers, humidifiers, wells, taps,flow meters, orifices, etc., if required hereunder to be furnished by Johnson,shall be distributed and installed by others under Johnson's supervision but at no additional cost to Johnson.Purchaser agrees to provide Johnson with required field utilities(electricity,toilets,drinking water,project hoist,elevator service,etc.)without charge.Johnson agrees to keep the job site clean of debris arising out of its own operations. Purchaser shall not back charge Johnson for any costs or expenses without Johnson's written consent. Unless specifically noted in the statement of the scope of work or services undertaken by JCI under this agreement,JCI's obligations under this agreement expressly exclude any work or service of any nature associated or connected with the identification,abatement,clean up,control,removal, or disposal of environment Hazards or dangerous substances,to include but not be limited to asbestos or PCB's discovered in or on the premises. Any language or provision of the agreement elsewhere contained which may authorize or empower the Purchaser to change,modify,or alter the scope of work or services to be performed by JCI shall not operate to compel JCI to perform any work relating to Hazards without JCI's express written consent. 2. INVOICING&PAYMENTS.Johnson may invoice Purchaser monthly for all materials delivered to the job site or to an off site storage facility and for all work performed on-site and off-site.Ten percent(10%)of the contract price is for engineering,drafting and other mobilization costs incurred prior to installation. This 10%shall be included in Johnson's initial invoice. Purchaser agrees to pay Johnson the amount invoiced upon receipt of the invoice. Purchaser acknowledges and agrees that any and all Johnson invoices for an amount greater than$25,000 shall be paid via wire transfer, check or money order,and that Purchaser shall not make,nor will JCI accept,payment in excess of$25,000 in the form of a credit card,debit card, or other similar payment device.Waivers of lien will be furnished upon request, as the work progresses, to the extent payments are received. If Johnson's invoice is not paid within 30 days of its receipt by the purchaser,it is delinquent. 3. MATERIALS.If the materials or equipment included in this proposal become temporarily or permanently unavailable for reasons beyond the control and without the fault of Johnson,then in the case of permanent unavailability,the time for performance of the work shall be extended to the extent thereof,and in the case of permanent unavailability,Johnson shall(a)be excused from furnishing said materials or equipment,and(b)be reimbursed for the difference between the cost of the materials or equipment permanently unavailable and the cost of a reasonably available substitute therefor. 4.WARRANTY.Johnson warrants that the equipment manufactured by it shall be free from defects in material and workmanship arising from normal usage for a period of ninety(90)days from delivery of said equipment,or if installed by Johnson,for a period of ninety (90)days from installation. Johnson warrants that for equipment furnished and/or installed but not manufactured by Johnson,Johnson will extend the same warranty terms and conditions which Johnson receives from the manufacturer of said equipment. For equipment installed by Johnson, if Purchaser provides written notice to Johnson of any such defect within thirty(30)days after the appearance or discovery of such defect,Johnson shall, at its option,repair or replace the defective equipment and return said equipment to Purchaser. All transportation charges incurred in connection with the warranty for equipment not installed by Johnson shall be borne by Purchaser.These warranties do not extend to any equipment which has been repaired by others,abused altered or misused,or which has not been properly and reasonably maintained. Except as covered by Johnson Control's Liability Insurance,THESE WARRANTIES ARE IN LIEU OF ALL OTHER WARRANTIES, EXPRESS OR IMPLIED,INCLUDING, BUT NOT LIMITED TO, THOSE OF MERCHANTABILITY AND FITNESS FOR A SPECIFIC PURPOSE. 5. LIABILITY.Except as covered by Johnson Control's Liability Insurance,Johnson shall not be liable for any special,indirect or consequential damages arising in any manner from the equipment or material furnished or the work performed pursuant to this agreement. 6.TAXES.The price of this proposal does not include duties,sales,use,excise,or other similar taxes,unless required by federal,state or local law. Purchaser shall pay,in addition to the stated price,all taxes not legally required to be paid by Johnson or,alternatively,shall provide Johnson with acceptable tax exemption certificates. Johnson shall provide Purchaser with any tax payment certificate upon request and after completion and acceptance of the work. 7. DELAYS. Johnson shall not be liable for any delay in the performance of the work resulting from or attributed to acts or circumstances beyond Johnson's control,including,but not limited to,acts of God,fire,riots,labor disputes,conditions of the premises,acts or omissions of the Purchaser, Owner,or other Contractors or delays caused by suppliers or subcontractors of Johnson Controls,Inc.etc. 8. COMPLIANCE WITH LAWS.Johnson shall comply with all applicable federal.state and local laws and regulations and shall obtain all temporary licenses and permits required for the prosecution of the work. Licenses and permits of a permanent nature shall be procured and paid for by the Purchaser. 9. DISPUTES. All disputes involving more than $15,000 shall be resolved by arbitration in accordance with the rules of the American Arbitration Association. The prevailiRg P@Fty shall FeGever all legal Gest6 and attemey'6 fees iRGUrred as a result. Nothing heFe 6hail IiFnit any 0ights undeF The prevailing party shall recover all legal costs and attorney's fees incurred as a result of any dispute. 10. ATTORNEYS'FEES. Purchaser agrees that he will pay and reimburse Johnson for any and all reasonable attorneys'fees which are incurred by Johnson in the collection of amounts due and payable hereunder. 11. INSURANCE.Insurance coverage in excess of Johnson's standard limits will be furnished when requested and required. No credit will be given or premium paid by Johnson for insurance afforded by others. 12. INDEMNITY.The Parties hereto agree to indemnify each other from any and all liabilities,claims,expenses,losses or damages,including attorneys' fees,which may arise in connection with the execution of the work herein specified and which are caused,in whole or in part,by the negligent act or omission of the Indemnifying Party. Any City liability under this agreement shall be subject to the liability limits for political subdivisions set out in section 537.610 RsMO,and shall be payable solely from the proceeds of liability insurance covering that event 13. OCCUPATIONAL SAFETY AND HEALTH.The Parties hereto agree to notify each other immediately upon becoming aware of an inspection under, or any alleged violation of,the Occupational Safety and Health Act relating in any way to the project or project site. 14. ENTIRE AGREEMENT. This proposal,upon acceptance,shall constitute the entire agreement between the parties and supersedes any prior representations or understandings. 15. CHANGES.NO Ghange er R;GdifiGatiOR ef aRy Gf the terms and-cGo—nd-itions stated herein Shall be biRdiRg UPGR jGhR6eR unless aGGepted by jGhRsG in writing.No change or modification of any of the terms and conditions stated herein shall be binding upon either party unless accepted by each party in writing. Johnson. Q� Controls P2000 SOFTWARE SUPPORT AGREEMENT CUSTOMER NAME Name: City of Cape Agreement Project Project City of Cape Girardeau Girardeau No. Number Name P2000 SMS Proposal 10/12/16 Effective 1/1/2018 Term End 12/302022 Street: 401 Independence Date: Date: Date: City,State Cape Girardeau,MO Postal Code: 63703 SUPPORT OPTIONS(Based on Registered Options for System) Quantity Support Element Description Quantity Support Element Description P2K-SW-SSAEXP' Support Express Edition 1 P2K-SW-SSADV Digital Video Integration 1 P2K-SW-SSAPRO Support Professional Edition P2K-SW-SSAMIS MIS interface to third party support P2K-SW-SSAC256 Support Corp Ed 256 readers P2K-SW-SSAINT Intercom support P2K-SW-SSAC512 Support Corp Ed 512 readers P2K-SW-SSAIA Intrusion and Alarm system support P2K-SW-SSACIK Support Corp Ed 1024 readers P2K-SW-SSAENT Enterprise P2K-SW-SSACUNL Support Crp Ed Unlim readers P2K-SW-SSAP Third Party Controller support P2K-SW-SSA312SP Support for V3.12 SP Only P2K-SW-SSAHA High AvailabilityXM system support SCOPE OF SERVICE This Software Support Agreement("Agreement")is entered into as of the effective date set forth below by and between Johnson Controls,Inc. ("KI'l and you,Customer under this Agreement("Customer').BY SIGNING BELOW,CUSTOMER AGREES TO BE BOUND BY THE TERMS AND CONDITIONS OF THIS AGREEMENT. Service Provider(Check one): Branch/Dealer Name: Location Address: Primary Contact Name: ®JCI/Branch#ON 10 Johnson Controls STL S&F 2280 Ball Drive Traonna Clark ❑Authorized Dealer St.Louis,Mo 63146 Primary Phone: ❑Channel Partner 314-8124533 PRICE AND PAYMENT TERNIS The price for JCI's service for the first year is included in the proposal.The annual price for the subsequent four years is$2,880 annually. After the fifth year,JCI shall notify the Customer of any changes in the annual price at least 60 days before the renewal date These payments will be due and payable when the Customer receives JCI's Invoice and in advance of the services JCI is to provide. CUSTOMER ,rte City of Cape dt�r ea � 1�J/1(��1 A By 3rM/Iiile Date Signat a Telephone Number nis proposal is tinlid for thirty days from proposal date. JCI Branch: Johnson Controls,Inc. Branch Phone: 314-569-1570 Customer PO: Branch Address: 2280 Ball Drive St.Louis,MO 63146 Renewal Date: Internal Use System ID . :. OrderReference, Additional Terms and Conditions follow Rev.216115 1 0 2013 Johnson Controls,Inc. GENERAL TERMS AND CONDITIONS operate each new Release. Because Releases are cumulative, each Release is useful only if Customer has obtained and DEFINITIONS installed all prior applicable Releases. (c) VERSION SUPPORT.Customers shall maintain the Software (a) "EFFECTIVE DATE"shall mean the date specified in at the latest Release level. Failure to do so shall relieve JCI of Attachment 1. its obligations to provide maintenance services (b) "ERROR"means any failure of the Software to conform in any (d) EQUIPMENT CHANGES. The services provided herein do material respect to its or their published specifications. not cover any equipment changes or upgrades that may be (c) "ERROR CORRECTION"means either a modification or required as the result of implementing any Software Update or addition that,when made or added to the Software,brings the Error Correction. Customer shall be responsible for all Software into material conformity with its or their published equipment necessary for the Software,including any Updates or specifications,or a procedure or routine that,when observed in Error Corrections,to function as intended. the regular operation of the Software,avoids the practical adverse effect of such nonconformity. CONTACT (d) "RELEASES"means new versions of the Software,which may (a) TECHNICAL CONTACT. Customer shall have a designated include Error Corrections and/or Updates. technical contact that is authorized to access the technical (e) "SOFTWARE"means the object code version of the software support services provided hereunder. Such technical contact program listed on Attachment I as well as any related Releases must either be a JCI branch employee or an authorized JCI or other software programs,purchased onprovided,which are dealer or channel partner. Customer understands that designed to operate in conjunction with that software program. Customer's staff is not authorized to contact JCI directly for (f) "UPDATE"means a change to the Software or Software technical support pursuant to this Agreement. component(i)which JCI makes commercially available and(ii) (b) STAFF.JCI shall maintain a trained staff capable of rendering which would normally be designated as a change in the digit(s) the services set forth in this Agreement. to the right of the decimal in the Software version number (c) TECHNICAL SUPPORT STAFF. JCL's technical staff shall [3.x.].An"Update"may consist of minor modifications of or provide necessary technical support to Customer's Technical improvements to the existing features of the Software,which Contact as needed for the Technical Contact to install and JCI is providing to its support agreement customers at no configure any Error Corrections or Updates. additional charge. "Update"does not include a revision that provides any material enhancement of Software features or ADDITIONAL SERVICES functionality.JCI reserves the right and authority to define an In addition,JCI may provide additional services,as mutually agreed, update. in support of the Software,subject to payment of its normal charges TERM and expenses. JCI will consider and evaluate the development of The term for this Software Support Agreement shall commence on the custom enhancements for Customer's specific use and will respond to Effective Date and shall continue for the duration of the term purchased Customer's requests for additional services pertaining to the Software and any subsequent renewals. (e.g.,as data conversion and report-formatting assistance). (a) EXPIRATION—The agreement expires at the end of the term COOPERATION OF CUSTOMER. unless renewed. Customer agrees to notify JCI promptly following the discovery of any (b) IMPACT OF EXPIRATION—If a new agreement is not Error.Further,upon discovery of an Error,Customer agrees,if requested purchased within 30 days after expiration of the term,Customer will not receive any of the services specified herein unless by JCI,to submit to JCI a'listing of output and any other data that]CI Customer enters into a new Software Support Agreement, may require in order to reproduce the Error and the operating conditions subject to future terms and pricing. under which the Error occurred or was discovered. (c) TERMINATION—The Customer shall have the option to terminate this agreement at any time,with 30 days notice to JCI. EXCEPTIONS. JCI shall have the option,but not the obligation,to tcnninate The following matters are not covered by the services provided under this this Software Support Agreement without penalty if Customer Agreement: (i)becomes insolvent or is unable to meet its debts as they mature, (a) Any problem resulting from the misuse,improper use, (ii)files a voluntary petition in bankruptcy or seeks reorganization alteration of,or damage to the Software; or to effect a plan or other arrangement with creditors,or (b) Any problem caused by modifications in any version of the (iii)shall be adjudicated a bankrupt or shall make an assignment Software not made or authorized by JCI; for the benefit of its creditors generally. (c) Any problem resulting from programming,other than the Software; (d) Any problem resulting from the combination of the Software with such other programming or equipment to the extent such combination has not been approved by JCI;or (e) Errors in any version of the Software other than the most recent Release,provided that JCI will continue to support superseded Releases for a reasonable period,sufficient for Customer to implement the newest Release. Customer will be responsible to pay JCI's normal charges and expenses for time or other resources provided by JCI to diagnose or attempt to correct any such problem.In addition,Customer is responsible for SCOPE OF SERVICES procuring,installing,and maintaining all equipment,telephone During die term,JCI agrees to provide maintenance services in support of lines,communications interfaces,and other hardware necessary the Software. Maintenance services shall consist of to operate the Software and to obtain maintenance services (a) ERROR CORRECTION.JCI shall be responsible for using from JCI. all reasonable diligence to correct verifiable and reproducible (t) delays caused by events or circumstances beyond JCL's Errors when reported to JCI in accordance with its standard reasonable control. reporting procedures.The Error Correction,when completed, may be provided in the form of a"temporary fix,"consisting of FEES AND EXPENSES. sufficient programming and operating instructions to implement The fee for maintenance services shall be as specified in Attachment I the Error Correction. hereto.Such fee is due and payable at the beginning of the initial Term (b) NEW RELEASES.JCI may,from time to time,issue new and each renewal year of maintenance hereunder.Maintenance fees do Releases of the Software,containing Error Corrections and/or not include any applicable travel and living expenses for installation and _ Updates,to customers who have Software Support agreements training,file conversion costs,optional products and services,directories, in eftect. JCI shall provide Customer with one.(1)copy of each consulting services,shipping charges,or the costs of any recommended new Release for each copy of the Software being maintained hardware.Customer agrees to pay such fees and costs,when and as the under this Agreement,without additional charge. JCI shall services are rendered and the expenses incurred,as invoiced by JCI.JCI provide reasonable assistance to help Customer install and reserves the right to require prepayment or advance deposit for such Rei.216115 2 m 2013 Johnson Controls,Inc. additional charges or expenses in some instances.Customer is also GOVERNING LAW. responsible for sales or use taxes and provincial,state or local property or This Agreement shall be governed by the laws of the state of Missouri excise taxes associated with Customer's licensing,possession,or use of the location of the JCI branch indicated on the first page of this the Software or any associated services. The maintenance fee is non- Agreement,excluding its conflicts of laws provisions. refundable and non-cancelable. JURISDICTION AND VENUE. RENEWAL. Any action or proceeding arising directly or indirectly from this The Software Support Agreement shall automatically expire on the Term Agreement shall be litigated in the appropriate courts of the state or End Date set forth above unless renewed by Customer prior to that date. province of the JCI branch indicated on the first page of this Agreement. Within thirty(30)days prior to expiration,JCI will provide notification to Both parties consent to the jurisdiction of such courts. Customer with instructions for renewal. ATTORNEYS'FEES. USE AND RESTRICTIONS. The prevailing party in any action to enforce this Agreement shall be JCI shall have sole ownership of all right,title,and interest in and to the entitled to recover costs and expenses,including attorneys'fees. Software and any maintenance services(including ownership of all copyrights and other intellectual property rights pertaining thereto), MODIFICATION AND WAIVER subject only to the license expressly granted to Customer in the license This is the entire agreement between JCI and Customer relating to the agreement for the Software.Unless otherwise agreed,Customer is subject matter hereof and it may be amended only by a writing executed entitled to make and use only the number of copies of any JCI materials by Customer and JCI.The failure of either party at any time to require provided as part of the maintenance services as Customer is authorized to performance by the other party of any provision hereof shall not affect in use of the Software to which they relate,and Customer agrees to return or any way the right to require such performance at any time thereafter.Nor destroy,as requested by JCI,superseded copies of the Software when shall the waiver by either party of a breach of any provision hereof be replaced by any new or updated versions. taken or held to be a waiver of any subsequent breach of the same provision or any other provision. LIMITED WARRANTY. JCI shall perform the maintenance services hereunder in a workmanlike CONSTRUCTION WITH OTHER DOCUMENTS. manner.ICI's obligation to correct Errors in the Software shall be limited The terns stated in this Agreement are the exclusive terms and entire to the terms of this Agreement.EXCEPT AS EXPRESSLY SET FORTH agreement regarding Customer's rights and obligations with respect to the IN THIS PARAGRAPH,JCI SHALL HAVE NO LIABILITY FOR services provided hereunder. Any terms or conditions stated in any other ANY DAMAGES,COSTS OR EXPENSES ARISING OUT OF THE contract for goods or services,including without limitation any purchase CUSTOMER'S USE OF ANY SERVICES PROVIDED,WHETHER order,construction contract,installation agreement,planned service ARISING IN CONTRACT(INCLUDING FUNDAMENTAL BREACH) agreement,acknowledgment or invoice shall be of no force and effect, OR TORT(INCLUDING NEGLIGENCE);JCI MAKES AND and no course of dealing,usage of trade,or course of performance shall CUSTOMER RECEIVES NO WARRANTIES,EXPRESS,IMPLIED, be relevant to explain or modify any tern expressed in the Agreement.In STATUTORY OR OTHERWISE;AND JCI SPECIFICALLY the event of a conflict between this Agreement and any other contract DISCLAIMS ANY WARRANTY OF MERCHANTABILITY OR between JCI and Customer(including any agent or independent FITNESS FOR A PARTICULAR PURPOSE.EXCEPT AS COVERED BY contractor of the Customer),this Agreement shall be deemed to be JOHNSON CONTROL'S LIABILITY INSURANCE. primary and controlling with respect to the subject matter hereof. By LIMITATION OF LIABILITY;EXCLUSION OF using the Software Support services,the Customer agrees that this CONSEQUENTIAL DAMAGES. provision is an essential component of the agreement between the parties. IN NO EVENT SHALL JCI BE LIABLE FOR ANY INDIRECT, The issuance of a purchase order and/or payment of the license fee SPECIAL,CONSEQUENTIAL,INCIDENTAL OR EXEMPLARY invoice by Customer shall constitute full and unconditional acceptance DAMAGES OF ANY NATURE IN CONNECTION WITH THIS and acknowledgement of this Agreement and its terms by Customer and AGREEMENT AND THE SERVICES OR SOFTWARE PROVIDED no terms,conditions or warranties other than those identified in this HEREUNDER,INCLUDING,WITHOUT LIMITATION,DAMAGES Agreement in any way purporting to modify the foregoing,whether FOR LOSS OF:BUSINESS PROFITS,BUSINESS INTERRUPTION, contained in Customer's purchase order or shipping release forms,or BUSINESS INFORMATION OR DATA STORAGE,GOODWILL, elsewhere,shall be binding on JCI. COMPUTER FAILURE OR MALFUNCTION,OR ANY AND ALL OTHER COMMERCIAL DAMAGES OR LOSSES,ARISING OUT OF LANGUAGE. THE USE OR INABILITY TO USE THE SOFTWARE,EVEN IF JCI This agreement has been created in English at the express request of HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES both parties. It is acknowledged and agreed that this agreement may AND WHETHER OR NOT THEY ARE FORESEEABLE.EXCEPT AS be translated into other languages by the parties following the COVERED BY JOHNSON CONTROL'S LIABILITY INSURANCE. execution of this agreement. It is expressly agreed by the parties that DEFAULT the English original shall govern in the event of conflict between the Should Customer fail to pay any fees or charges due hereunder or fail to English and a foreign language translated version. carry out any other obligation under this Agreement or any other agreement with JCI,JCI may,at its option,in addition to other available THE REST OF THE PAGE IS remedies,terminate this Agreement or suspend maintenance services, INTENTIONALLY LEFT BLANK provided that it first gives Customer thirty(30)days prior notice in order to permit Customer to cure Customer's default.In addition,maintenance coverage will automatically terminate with respect to any copies of Software that are no longer regularly used by JCI customers whether as a result of expiration or replacement of such versions with new Releases. NOTICES. All notices or other communications required to be given hereunder shall be in writing and shall be delivered by personal delivery,mail,courier,or facsimile to the address or facsimile number of the other party set forth on the first page of this Agreement.Notice shall be deemed given based on any one of the following notification methods:upon personal delivery;if sent by fax or a-mail,with confirmation of correct transmission,on the next business day after it was sent;upon the courier's confirmed delivery if sent by courier;and if sent by mail with proper postage prepaid,five(5) days after the date of mailing.A party may change its address for notice by delivering to the other party wTitten notice. Rev.216115 3 0 2013 Johnson Controls,Inc.