C250403_IFB_Exhibit_A_SOW_ATTACHMENT_2_-_ITMS_Warranty_Provisions.pdf

1.1.1. Warranty

Except as otherwise provided herein, ACS shall warrant that the System Equipment and

Software furnished under this Contract shall be free from defects in material and workmanship under normal use and service, and shall operate in accordance with the technical specifications which form part of this Contract. The SYSTEM is defined as following:

1) ACS‟ OrbCAD Hardware and Software provided under this contract,

2) Hardware and Software provided by Harris under this Contract (“Radio

System”)

3) All other third party hardware and software provided under this Contract including, but not limited to, the Aviat microwave equipment (the “Aviat

Equipment”).

All ACS, Harris and other third party software provided under this Contract shall be licensed to OCTA (the “Licensee”) pursuant to the Software License Agreement which forms part of this Contract (collectively, the “Licensed Software”).

1.1.1.1. Definitions

The term "Non-Critical Programming Error" refers to any reproducible programming error in the Licensed Software attributable to ACS, which prevents the Licensed Software from operating in accordance with the software specifications set forth in the Contract.

The term "Critical Programming Error" refers to any reproducible programming error in the

Licensed Software attributable to ACS which results in any one or more of the following:

(a) Elimination of any part of designed redundancy;

(b) Loss of the capability of the Licensed Software to communicate with the

Licensee's terminal-equipped field personnel;

(c) Loss of the capability of the Licensed Software to communicate with the

Licensee's system;

(d) Loss of the Licensee's ability to enter data into the Licensed Software using

Licensee‟s terminals locally or remotely attached to the Licensee's system, which terminals are designed to accommodate such entry of data; and

(e) A recurrence of any of the above problems.

The term “Hardware” refers to the ACS and third party manufactured hardware delivered under the Contract.

The term “No Fault Found” refers to the inability of ACS or Authorized Repair Facility to duplicate the reported error, or that upon testing the return asset, ACS could not find any error in the asset.

ATTACHMENT 2 - WARRANTY

The term "Programming Error" refers to any reproducible programming error, whether a

Critical Programming Error or Non-Critical Programming Error.

Response time is defined as the period of time between the point at which the service request is initially received by the OrbTrac hotline and the point in time when personnel from ACS place a return call to the name and phone number listed with the original service request

The term “Updates” refers to corrections of reproducible programming errors in the version of the Licensed Software licensed to the Licensee.

The term “Upgrades” refers to increased functionality or enhancements to the Licensed

Software.

1.1.1.2. Software Support Services

ACS shall provide software support service to the Licensee for the correction of

Programming Errors in the Licensed Software. For the Critical Programming Errors, the

ACS Hotline is available twenty-four (24) hours per day, three hundred and sixty-five days a year, with a response time to a service request within two (2) hours. For Non-Critical

Programming Errors, the ACS email is available as set forth below with a response time of one business day. Response times are applicable provided ACS receives notice of such

Programming Errors. Response time is defined as the period of time from receipt of proper notification that a Programming Error with the Licensed Software has occurred, to the time that ACS begins active work on the problem.

ACS shall provide software support service, in its sole discretion, either on site or through a telecommunications link (VPN). Licensee shall be responsible for the use, availability and maintenance of the telecommunication link end to end once the message has been sent by

ACS. If the telecommunication link is not available to ACS for purposes of this Agreement, the Update shall be provided to the Licensee via the US Mail for installation by the Licensee.

All service requests for Critical Programming Errors are to be initiated through the ACS 1-

888-ORBTRAC Hotline. All service requests for Non-Critical Programming Errors are to be initiated through the ACS email address at tmssupport@acs-inc.com. Service requests submitted by any other channel, unless specifically requested in writing by ACS personnel may fall outside the response times set forth in Section 3.1 above.

ACS shall provide the Licensee with:

a) Telephone support, which shall consist of the provisions by ACS to the Licensee of telephone instructions and assistance in the correction of Programming Errors in the Licensed Software.

b) Correction of any Programming Error in the version of the Licensed Software.

Said correction(s) shall be provided, at the discretion of ACS, via a warranty

Release or Patch. With respect to the Harris and other third party software, ACS shall act as the initial point of contact for all support requests and coordinate the mailto:tmssupport@acs-inc.com response among the affected software vendor(s), but the third party licensor(s) shall provide the actual support for its respective software.

c) Telephone support to assist Licensee with software support, installation or warranty concerns related to the ACS Licensed Software except for the accuracy of Licensee‟s data provided to the OrbCAD System.

If ACS sends personnel to the Licensee's site to solve a Critical Programming Error, such personnel shall remain on the Licensee's site until, at ACS‟ sole discretion, either of the following occurs:

(a) ACS has implemented a corrective solution to the Critical Programming Error, or

(b) ACS has presented to the Licensee a workable plan for correcting the Critical

Programming Error, and the plan is best executed off-site.

In the event that Licensee experiences a problem with the Licensed Software, it shall complete a Software Deficiency report or provide the requested information in its own format. Together, Licensee and ACS will work to diagnosis the root cause of the problem. If

ACS decides that the Licensed Software is not the cause of the problem, ACS will notify

Licensee and Licensee can either elect in writing to have ACS continue to work to characterize the issue on a time and materials basis or close the case. If Licensee elects to have ACS continue to characterize the issue and it is subsequently determined that the

Licensed Software was a cause of the reported problem, then ACS cannot charge time and material for the diagnosis or repair of the issue.

The parties acknowledge that future Updates may involve the use of a level of operating system different from that presently being utilized by Licensee. ACS shall not be responsible for the cost of any new operating system and/or computer equipment which may be required if Licensee decides to utilize an Update offered by ACS.

If the Licensee desires to obtain an Upgrade to the Licensed Software, Licensee shall provide a detailed statement of work describing the Upgrade. ACS shall provide either a fixed price or time and material proposal for the same. For services outside the scope of this Agreement, Licensee shall pay Licensor for such services on a time and material.

1.1.1.3. Hardware Support Services

ACS shall provide hardware support service to OCTA for the correction of system hardware problems. For Critical System Hardware Failures with the fixed end equipment (not an individual bus equipment failure), resulting in serious degradation of system performance, the ACS Hotline is available twenty-four (24) hours per day, three hundred and sixty-five days a year, with a response time to a service request within two (2) hours.

ACS shall provide the hardware support services. ACS is responsible for all shipping costs associated with the repair and/or replacement of defective Hardware during the Warranty period. OCTA shall be responsible for packaging all defective Hardware being returned to

ACS for repair in accordance with ACS‟ packaging instructions. ACS shall, at its discretion, repair or replace the defective equipment and return a functioning unit to OCTA within thirty

(30) days of receipt, not counting return shipping time. All Hardware repaired and returned under warranty shall be warranted for the longer of the remainder of the then current

Warranty term or 90 days.

Any hardware returned by OCTA for hardware warranty repair where no fault is found and where this occurs greater than four times annually, whether on the same asset or four separate assets, then in that event; any subsequent piece of hardware returned for hardware warranty repair and no fault is found, the shipping costs will be due to ACS for each piece of hardware so returned. If hardware is returned by ACS to OCTA that still has fault, such incident will offset incidences where no fault is found on a one-to one basis. In those incidents where a repaired asset still has a fault attributable to ACS, OCTA must report such incident to ACS within ten (10) days of delivery of the repaired asset. If clearing the Flash Memory cures a fault, it will not be considered a repair where no fault is found.

The Warranty will not apply to the extent that:

a. The failure of any Hardware arising out of improper repairs or alterations by OCTA where OCTA failed to follow required repair procedures as described in

Documentation including, without limitation, Manuals supplied by ACS.

b. The Hardware has been subjected to uses substantially more severe than the conditions which prevail in OCTA service and exceed the environmental requirements in the Technical Specifications.

The burden of proof to assert the applicability of this provision shall rest with ACS.

Environmental conditions including, without limitation, temperature, humidity, vibration (such as bus vibration) and ambient electric conditions on OCTA buses, trains or in stations (as appropriate) shall be considered normal operating conditions for the System and all Hardware in the System.

c. Defects or damage occurring from misuse, accident, or neglect.

d. Breakage or damage to antennas unless caused by defects in material or workmanship.

e. Hardware that has been subjected to unauthorized Equipment modifications, disassembly or repairs (including the addition to the Equipment of non-ACS supplied equipment if not authorized by ACS) which adversely affect performance of the

Hardware or interfere with ACS‟ normal warranty inspection and testing of the

Hardware to verify any warranty claim.

This Warranty will not apply to:

a. Hardware which has had the serial number removed or made illegible.

b. Batteries (because they carry their own separate limited warranty).

c. Hardware which, due to illegal or unauthorized alteration of the software/firmware in the Equipment, does not function in accordance with the equipment manufacturer‟s published specifications or with the FCC type acceptance labeling in effect for the

Equipment at the time the Equipment was initially distributed from ACS.

d. Scratches or other cosmetic damage to the Hardware surfaces that does not affect the operation of the Hardware.

e. Normal and customary wear and tear.

Services are performed at ACS‟ Depot Repair Center in Columbia, Maryland or at a facility designated by ACS.

ACS‟ Hardware warranty repair obligation applies only to Hardware and accessories (where they are required for normal operation of the Hardware and are included at the point of manufacture).

Service does not include (1) the repair or replacement of Hardware that has become defective or damaged due to physical, liquid, or chemical damage, misuse, abuse, shipping damage, negligence, or Acts of God or has exceeded its useful life (2) the reprogramming of the

Hardware; (3) accessories not provided by ACS or not included at the point of manufacture;

(4) custom or Special Products, modified units or software that were not provided or modified by ACS.

1.1.1.3.1. ACS Responsibilities

Promptly issue Return Material Authorizations for Hardware.

Repair, test and return the Hardware to OCTA in operational condition.

A description of second level or above hardware maintenance repair is to be provided.

1.1.1.3.2. OCTA Responbilities

Provide first level support

Complete a Return Materials Authorization Request Sheet with a detail description of the failure and submit it via fax for each piece of Hardware in need of Service.

A completed Return Materials Authorization Request is mandatory for the start of the

Hardware Support Services.

Upon receipt of the RMA# via return fax, send Hardware along with a completed

Return Material Authorization Request Sheet to ACS. Accessory items sent in without the Hardware must reference the serial number of the Hardware on the

Return Materials Authorization Request Sheet.

Pay freight insurance charges for declared values in excess of $100 on inbound shipments.

1.1.1.3.3. Repair Warranty

ACS warrants that its services will be free from defects in material and workmanship for a period of ninety (90) days following the completion of each repair. If any unit requires repair for the same failure as identified during the preceding repair during this period due to defective material and/or workmanship, ACS shall, solely at its option, repair the defective unit free of charge or provide a replacement in exchange for the defective unit, provided that:

(a) Hardware was delivered by ACS to OCTA under the Contract and written notice of the nonconformance are received by ACS within the warranty period, (b) the unit(s) are returned, transportation prepaid, in protected shipping containers in accordance with the ACS‟ shipping instructions, provided ACS determines, in its judgment, that there is a valid warranty claim. All defective units which have been replaced by ACS shall become ACS‟ property. If ACS determines that there is not a valid warranty claim for the unit(s), then

OCTA shall reimburse ACS for its efforts on a time and material basis. This warranty shall not apply to defects resulting from: improper or inadequate maintenance by OCTA or any third party; operation outside the unit(s) environmental specifications; improper site preparation and maintenance; improper testing of the unit(s) by OCTA or any third party;

unauthorized modification or misuse of the unit(s); unauthorized repair or examination by

OCTA or any third party; mishandling, neglect, misuse, or abuse of the unit(s) by OCTA or any third party; and/or failure to provide required preventive maintenance. ACS‟ warranty extends to OCTA only. All other warranties, express, statutory, or implied, including all warranties of merchantability and fitness for a particular purpose, and all warranties arising from course of dealing or usage of trade are hereby excluded.

1.1.1.3.4. Warranty Period

Warranty of the System shall commence upon System Acceptance (No Major Failures) and shall continue for a period of one (1) year (the “Warranty Term”). Notwithstanding the foregoing, the Aviat Equipment shall have a two (2) year warranty commencing as of the first date of beneficial use by OCTA, and certain OEM Hardware including servers, routers and work stations shall have a three (3) year warranty from date of purchase (the “OEM

Hardware”). The final list of the OEM Hardware subject to the three (3) year warranty shall be agreed to by ACS and OCTA on or before the date of final design review as specified in the Contract.

ACS shall provide annual options to OCTA for extension of the warranty for up to ten (10) years after expiration of the initial Warranty. Each warranty extension option shall be exercised at least 90 days prior to the expiration of the then current warranty term, and the cost for each of these options shall be entered separately on a Pricing Sheet. Pricing for each warranty extension term shall be subject to standard increases based on current Electronic

CPI increases to submitted estimated pricing.

1.1.1.4. Warranty Conditions

OCTA will operate and maintain the SYSTEM in accordance with ACS‟ specific instructions as set forth in the Documentation and Training in order to maintain this Warranty.

1.1.1.5. Consumable Items

The Warranty shall not cover the replacement of normal consumable items or items which are replaced in usual and scheduled preventative maintenance programs, such as light bulbs and wear-related items.

1.1.1.6. Fleet Defects and System Component Failure

A “Fleet Defect” is a defect, failure or malfunction that affects 8% or more of a given piece of Hardware or subcomponent thereof within any continuous six (6) month period during the

Warranty Term.

Should a Fleet Defect occur during the Warranty Term, the Warranty on the affected component shall be extended day for day for the period of time it takes to correct the Fleet

Defect. OCTA shall provide ACS written notice of any component which experiences a

Fleet Defect during the Warranty Term as soon as reasonably possible after OCTA has determined that a failure constitutes a Fleet Defect.

ACS shall remove, repair or replace, and reinstall Fleet Defect affected component(s) at no expense to OCTA on an „as needed‟ basis such that OCTA will experience no loss of revenue service. ACS shall pay OCTA‟s labor expense to remove, exchange, and reinstall faulty components, the shipping costs to return such components to a service location determined by ACS, and the repair or replacement costs of the component.

OCTA shall have the right to determine that a Fleet Defect has been resolved and OCTA shall premise its determination upon the presumption that all similar components have the same Deficiencies and shall ultimately experience these same failures, and OCTA may require that all such similar components be removed, repaired or replaced, and reinstalled.

1.1.1.7. Costs of Warranty Repair

ACS shall be responsible for all warranty repair costs, including without limitation the shipping charges to and from ACS‟ repair facilities, and the costs associated with re-installation, with the exception that OCTA personnel will re-install on-bus Equipment. ACS shall meet as necessary with OCTA to determine the schedule of repairs. ACS may, at its option, perform the required repairs at the OCTA bus facilities. The necessary personnel, tools and materials shall be at ACS‟ sole expense. Notwithstanding the foregoing, in the event equipment is returned to ACS which is found not to be defective, OCTA shall be billed for all applicable shipping charges.

1.1.1.8. Access to Equipment in Revenue Service

ACS shall follow the proper OCTA security and safety procedures for gaining access to the

System Components. ACS shall not modify or repair any System Components in revenue service without the approval of OCTA‟s Project Manager or Authorized Representative, or through procedures approved by OCTA‟s Project Manager that avoid the need for unit-by-unit authorization for repair.

1.1.1.9. Assignment of Warranties

ACS shall assign to OCTA to the fullest extent permitted by law or by Contract and shall otherwise ensure that the benefits of any applicable warranty or indemnity offered by any

Subcontractor, Supplier or manufacturer of any System Component, hardware, software or any other product or service provided hereunder shall fully extend to and be enjoyed by

OCTA at no additional charge.