Contract 505ENT-M11-HOSTEDVOIP-01_Redacted.pdf

State of Wisconsin Department of Administration

DOA-3049 {R01 /2000)

S. 51.01(5) Wis. Stats.; s. 111.32(13m) Wis. Stats.

Voice over Internet Protocol (VoIP) Commodity or Service:

Contract Period: Five Years

Contract

State Bureau of Procurement 101 East Wilson Street, 61 h Floor P. 0. Box 7867

Madison, WI 53707-7867

Request for Bid/Proposal No: 28008-LAA

Contract No: 15-91579-121

1. This contract is entered into by and between the state of Wisconsin, Department of Administration, and the contractor whose name, address, and principal officer appears below;

2. Whereby the State Bureau of Procurement, Department of Administration, agrees to direct the purchase and the contractor agrees to supply the contract requirements cited above in accordance with the terms and conditions of the request for bid cited above, and in accordance with the contractor's bid submitted on this request for bid; which request for bid is hereby made a part of this contract;

3_ In connection with the pelformance of work under this contract, 1he contractor agrees not to discriminate against any employee or applicant for employment because of age, race, religion, color, handicap, sex, physical condition, developmental disability as defined in s.51.01(5), Wis. Stats., sexual orientation as defined in s.111.32(13m), Wis. Stats., or national origin. This provision shall include, but not be limited to, the following:. employment, upgrading, demotion or transfer; recruitment or recruitment advertising; layoff or termination; rates of pay or other forms of compensation; and selection for training, including apprenticeship.

Except with respect to sexual orientation 1 the contractor further agrees to take affirmative action to ensure equal employment opportunities. The· contractor agrees to pos1 in conspicuous places, available for employees and applicants for employment, notices to be provided by the contracting officer setting forth the provisions of the nondiscrimination clause.

4. Contracts estimated to be over twenty-five thousand dollars ($25,000) require the submission of a written affirmative action plan. Contractors with an annual work force of less than twenty~five (25) employees are exempted from this requirement

Within fifteen (15) working days after the award of the contract, the plan shall be submitted for approval to the contracting agency.

Technical assistance regarding this clause is provided by the Wisconsin Office of Contract Compliance, Department of Administration, P.O. Box 7867, Madison, WI 53707-7867, (608) 266-5482.

For

By

Title

Phone

Date

State of Wisconsin Department of Administration State Bureau of Procurement

Depuly Secretary

608-266-1741

(mmiddlccyy)

Witnesses

To be Completed by Contractor

For Company Name

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This document can be made available in accessible fonnats to qualified individuals with disabilities.

MASTER AGREEMENT Contract 15-91579-121

1.0

1. 1

(a)

(b)

(c)

(d)

(e)

(d)

(g)

INTRODUCTION

Overview of Documents. This Master Agreement and the following additional documents (collecfively, the "Agreemene or "Master Agreement") shall apply to all services and equipment AT&T provides Customer and

·Customer Users pursuant to this Agreement ("Services") and shall confinue in effect so long as Services are provided under this Agreement:

Addendum and Addenda. An "Addendum" or "Addenda" means a document(s) which are attached to this Agreement and whtch are incorporated herein and which may Include a Pricing Schedule(s).

Pricing Schedules. A "Pricing Schedule" means a document, including related attachments, that is attached to and incorporaied into this Master Agreement or is later executed by the parties and references this Master Agreement. A Pricing Schedule includes the Services, the pricing (including discounts and commitments, if applicable) and the pricing schedule term ("Pricing Schedule Term").

Tariffs and Guidebooks. "Tariffs" are documents containing the descriptions, pric1ng and other tenns and conditions for a Service that AT&T or its Affiliates file with regulatory authorities. "Guidebooks" are documents (designated as Guidebooks or Price Lists) containing the descriptions, pricing and other terms 'and conditions for a Service that were but no longer are filed with regu[atory authorities. Tariffs and Guidebooks can be found at att.com/servicepub[ications or other locations AT&T may designate.

Acceptable Use Policy. AT&T's Acceptable Use Policy ("AUP") applies to (i) Services provided over or accessing the Internet and 0i) wireless (i.e., cellular) data and messaging Services and is not applicable to local and long distance transport services The AUP attached hereto as Exhibit 1 or at att.com/aup or other locations AT&T may designate. The AUP may not change. this Master Agreement and/or any Service provided hereunder so as to cause either to be inconsistent with RFP #28008-LAA. AT&T shall notify Customer in advance of material changes to the AUP and such changes will become effective 30 days after AT&T provides notice to custorner as set forth '1n section 12.9. By continuing to use the Services after such revisions are effectlve, and upon notice, Customer will accept and agree to the Agreement and/or Service as revised according to the conditions set forth within this section 1. 1. (d).

Service Guides. The descriptions, pricing and other terms and conditions for a Seivice not covered by a Tariff or Guidebook may be contained in a Service Guide, which may be modified from time to time by AT&T. Attached hereto as Exhibits 2 thru 6 is the current version of the Seivice Guide.

(a) AT&T shall not apply a Service Publk:ation or any revision to a Service Publication to Customer in a manner inconsistent with the Master Agreement or its attachments, including its Pricing Schedules, unless required to do so by law.

(b) Subject to the subsection (a), AT&T may revise a Service Publication to enhance the functionality of an existing Service Component or add a new Service Component to change non-stabilized pricing, to make a change required by governmental authority, or to assess or change assessments of government related recovery fees, surcharges or taxes. AT&T shall not otheiwise apply to Customer a revision to a Service Publication in a manner that has a Materially Adverse Impact on Customer during the term of the Master Agreement.

(c) Termination for Materially Adverse Impact. If AT&T revises a Service Publication that has a Materially Adverse Impact on Customer and AT&T does not effect revisions that remedy such Materially Adverse lmp?ct within 30 days after receipt of notice from Customer, then Customer may, as Customer's sole remedy, elect to terminate the affected Service Components on 30 days' notice to AT&T, given that the first notice of impact is not later than 90 days after Customer first learns of the revision to the Service Publication. " Materially Adverse Impacts" do not include changes to non-stabilized pricing, changes required by governmental authority, or changes to assessments of government-related recovery fees, surcharges or' taxes.

To the extent that AT&T makes generally available to its customers a system for providing notice of any changes to a Service Publication, AT&T shall make that system available to Customer.

State of Wisconsin Department of Administration State Bureau of ·Procurement's RFP 28008-LAA for Enterprise Voice Services dated February 16, 2011 (the "RFP");

Response of AT&T Corp. dated March 28, 2011 to the RFP (the "RFP Response");

(h)

1.2 0) 0i) (iii) Qv) (v)

1.3

2.0

3.0

Document(s) Appended: (AT&T Pricing Schedules) for the following service(s):

• AT&T Integrated Pricing Schedule

• AT&T Equipment Resale and Related Servioes

Priority of Documents. The order of priority of the documents that form this Agreement shall be as follows:

this Master Agreement including applicable Addendum and Pricing Schedules;

the AT&T RFP Response;

the RFP;

theAUP;

Tariffs; provided that, Tariffs will be first in priority in any jurisdiction where applicable law or regulation does not permit contract terms to take precedence over inconsistent Tariff terms.

Revisions to Documents. Subject to Section 1.0(e){c) (Termination for Materially Adverse Impact), AT&T may revise Service Publications at any time.

DEFINITIONS

"Affiliate" of a party means any entity that controls, is controlled by or is under common control with such party.

"Authorized User01 means entities defined under Wisconsin Statutes (s. 16.73, Wis. Stats.) that establish the authority allowing Wisconsin municipalities to purchase from state contracts. A umunlcipality" ls defined as any county, city, village, town, school district, board of school directors, sewer district, drainage district, vocational, technical and adult education district, or any other public body having the authority to award public contracts (s. 16.70(8), Wis. States.). Federally recognized Indian tribes and bands in this state may participate in cooperative purchasing with the state or any municipality under ss. 66.0301(1) and (2), Wis.

Stats.

ucustomer User'' means any, and aH, offices, departments, agencies, institutions of higher education, associations, societies or other bodies in Wisconsin state government created or authorized to be created by the Wisconsin constitution or any Wisconsin law, which is entitled to expend moneys appropriated by !aw, including the legislature and the courts, but not including an authorijy_ This specifically does not include Authorized Users.

•ccutover" 1neans the date Customer's obligation to pay for Services begins.

'iDamages" means collectively all injury, damage, liabHity, loss, penalty, interest and expense incurred.

"Effective Date" of a Pricing Schedule means the date on which the last party signs the Pricing Schedule unless a later date is required by regulation or law.

"Headquarters Credif' means a charge determined annually by Customer and billed on behalf of Customer on a monthly basis directly to Customer Users and Authorized Users.

"Minimum Payment Period" means the Minimum Payment Period identified for a Service Component in a Pricing Schedule or Service Publication during which Customer is required to pay recurring charges for the Service Component.

•iMinimum Retention Period" means the Minimum Retention Period Identified for a Seivice Component In a Priclng Schedule or Seivice Publication during which Customer is required to maintain service to avoid the payment (or repayment) of certain credits, waived charges or amortized charges.

0 Service Component" means an individual component of a Service provided under this Agreement.

"Service Publications" means Tariffs, Guidebooks, Servlce Guides and the AUP.

"Site" means Cus1omer's physical location, including Customer's collocation space on AT&T's or its Affiliate's property, where AT&T installs or provides a Service.

AT&T DELIVERABLES

3.1

3.2

3.3

4,0

4.1

4.2

4,3

4.4

4,5

4.6

5.0 5.1

Se.rv'1ces. AT&T will either provide or cause an AT&T Affiliate to provide Seivices to Customer and Customer Users, subject to the availability and operational !imitations of systems, facilities and equipment. Where required, an AT&T Affiliate authorized by the appropriate regulatory authority will be the service provider.

Services to Be Provided. AT&T agrees to provide the services required in RFP 29008-LAA, described in AT&T's RFP Response or as modified by this Agreement in product-specific Pricing Schedules, Addenda or other documents included in this Agreement. Customer understands and agrees that products and servlces purchased under this Agreement are for Customer's own use. Customer may not resell the Services or rebrand the Services for resale to third parties. Providing products and services acquired under this Agreement to any entity not qualifying as Customer, Customer User or Authorized User (as permitted under this Agreement) is strictly prohibited, and AT&T may deem such a violation as a material breach of this Agreement AT&T Equipment Services may be provided using equipment owned by AT&T that is located at the Site ("AT&T Equipment"), but title to the AT&T Equipment will remain with AT&T. Customer must provide electric power for the AT&T Equipment and keep the AT&T Equ·1pment physically secure and free from flens and encumbrances. Customer will bear the risk of loss or damage to the AT&T Equipment located at the Site (other than ordinary wear and tear) except to the extent caused by AT&T or its Affiliates.

AUTHORIZED USERS

AT&T agrees that any "Authorized User," as defined in Secf1on 2 above, shall be eflgible to subscribe to Services at the prices and pursuant to the tenns and conditions provided under this Agreement ('Authorized User Services") subject to the following:

Each Authorized User shall execute a separate agreement with AT&T. In addition, each Authorized User shall be solely responsible for payment of its charges to AT&T.

The Authorized User Services shall be available to Authorized Users requesting such services lo the extent available in AT&T centra! offices providing services to Customer.

Applications for Authorized Users shall be submitted to AT&T for approval. AT&T shall make the ln"1tial determination of eligibility. · An entity that may qualify as an Authorized User and who has existing (non-Authorized User) agreements in place with AT&T for Services provided under this Agreement, and entities that currently have an Authorized User agreement with AT&T pursuant to which the Authorized User receives Services from AT&T, shall not be allowed to terminate such exlsting agreements early for the purpose of entering into a new Authorized User agreement in order to purchase the Authorized User Services at the pricing under thfs Agreement However, upon the expiration· of the eXisting agreements between AT&T and such entity, such entity may subscribe to Authorized User Services hereunder at the prices set forth herein; prov'1ded, that any such Authorized User executes an agreement with AT&T.

Notwithstanding anything herein to the ccntrary, Authorized Users may purchase additional services from AT&T that are not subject to the terms of this Agreement or any Authorized User agreement Authorized Users shall be subject to the imposition of the Headquarters Charge as defined and set forth in Section 2 herein.

CUSTOMER'S COOPERATION

Access Right. Customer vi1ill in a timely manner allow AT&T access as reasonably requlred for the Services to property and equipment that Customer controls and will obtain at Customer's expense timely access for AT&T as reasonably required for the Services to property controlled by third parties such as Customers landlord. AT&T will coordinate with and, except in an emergency, obtain Customer's consent to enter upon Customer's property and premises, which consent shall not be unreasonably withheld. Access rights mean the right to construct, install, repair, maintain, replace and remove access lines and network facilities and the right to use ancillary equipment space within a building for Customers ccnnection to AT&T's network.

Customer must provide AT&T timely jnformation and access to Customer's facilities and equipment as AT&T reasonably requires for the Services, subject to Customer's reasonable secur·1ty policies. Customer will furnish any conduit, holes, wireWays, wiring, plans, equipment, space, power/utilities and other items as

5.2

5.3

6.0 6.1

6.2 (a)

(b)

(c)

6.3 (a)

6.4

6.5

6.6

7.0

AT&T reasonably requires for the Services and will obtain any necessary licenses, permits and consents (including easements and rights-of-way). Customer will have the Site ready for AT&T lo peliorm its work according to a mutually agreed schedule.

Safe Working Environment. Customer will ensure that the location at which AT&T installs, maintains or provides Services is a safe working environment, tree of Hazardous Materials and reasonably suitable for the Services. "Hazardous Materials" mean any substance or material whose use, transport, storage, handling, disposal or release is regulated by any law related to pollution, to protection of air, water or soil or lo health and safely. AT&T shall have no obligation to perform work al a location that is nol a suitable and safe working environment or to handle, remove or dispose of Hazardous Materials.

Customer Users. Customer will cause Customer Users to comply with this Agreement and (s responsible for Customer Users' use of any Service unless expressly provided to the contrary in an applicable Service Publication. An order by a Customer User for any Service under this Agreement, shalf constitute an acknowledgement !hat Customer User agrees to be bound by !he terms hereof.

PRICING AND BILLING

Pricing and Pricing Schedule Term; Tenns Applicable After End of Pricing Schedule Term. The prices listed in a Pricing Schedule are slaoilized until the end of the Pricing Schedule Term and will apply in lieu of the corresponding prices set forth in the applicable Service Publication. No promotion, credit, discount or waiver set forth in a Service Publication will apply.

Taxes and Additional Charges.

Exempt Taxes. Customer is exempt from payment of all federal tax and Wisconsin state and local taxes on its purchases, provided that Customer shall provide AT&T a tax exemption certificate prior to the delivery of Services.

Other Taxes. Prices set forth in a Pricing Schedule are exclusive of and Customer will pay all other applicable taxes from \vhich Customer is not exempt (and any associated Interest and penalties resulting from Customer's failure to timely pay such taxes).

Additional Charges. Prices set forth in a Pricing Schedule are exclusive of, and Customer will pay, all surcharges, recovery fees, and other similar charges (and any associated interest and penalties resulting from Customer's failure to timely pay such charges) relating to the use or provision of the Services.

Billing.

Customer and Customer Users' Obligation. Unless a Service Publication specifies otherwise, Customer's and Customer Users' obligation to pay for a Service Component begins upon availability of the Service Component to Customer and Customer Users' eXcept as provided by Wisconsin Law. Customer and Customer Users' wilf pay AT&T without deduction, setoff or delay for any reason (except as provided for in Section 6.5- Delayed Billing; Disputed Charges).

Payments. Payment is due within 30 days after the date of the invoice (unless another date is specified in an applicable Tariff or Guidebook) and must refer to the invoice number. Restrictive endorsements or other statements on checks accepted by AT&T will not apply. Where payments are overdue, AT&T may assess interest charges pursuant to section 16.528(2) of lhe Wisconsin Statutes.

Delayed Billing; Disputed Charges. Customer shall not be responsible for payment of charges for Services invoiced more than 6 months after close of the billing period in which the charges were incurred, except for calls assisted by an automated or live operator. If Customer disputes a charge, it shall be pursuant to s.

16.528 and 16.53(2) of the Wisconsin Statutes as clarified by DOA FORM 5036N.

AT&T Collection and Remittance of Headquarters Credit. AT&T shall bill to and collect from Customer Users and Authorize Users, the Headquarters Credit on behalf of Customer. AT&T shall remit to Customer the collecled Headquarters Credit. Such Headquarters Credit shall be separately identified on invoices remitted to Customer Users' and Authorized Users'.

CONFIDENTIAL INFORMATION

7.1

7.2

7.3

7.4

8.0 8.1 (a)

(i)

(ii)

(iii)

(iv)

(v)

(b)

Confidential lnfonnation. Confidential 1nformaf1on means'. (a) information the parties or their Affiliates share with each other in connection with this Agreement or in anticipation of providing Services under this Agreement (including other proposals), but only to the extent identified as Confidential lnlonnation in writing; and (b) except as may be required by applicable law or regulation, the terms of this Agreement. · Obligations. A disclosing party's Confidential Information will, for a period of 3 years foflowing its disclosure to the other party (except in the case of software, for which the period is indefinite): (a) not be disclosed, except to the receiving party's employees, agents and contractors having a need-to-know (but only if such agents and contractors are not direct competitors of the other party and agree in writing to use and disclosure restrictions as restrictive as this Section 7) or to the extent authorized to be revealed by ~aw, governmental authority or legal process (but only If such disclosure is limited to that which is so authorized and prompt notice is provided to the disclosing party to the extent practicable and not prohibited by law, governmental authority-or legal process); (b) be held in confidence; and (c) be used only for purposes of using the Serv1ces, evaluating proposals for new services or performing this Agreement (including in the case of AT&T to detect fraud, to check quality and to operate, maintain and repair the Services).

Exceptions. The restrictions in this Section 7 will not apply to any information that: (a) ls independently developed by the receiving party wrthout use of the disclosing party's Confidential Information; (b) is lawfullY received by the receiving party free of any obligation to keep ii confidential; (c) becomes generally available to the public other than by breach of this Agreement; or (d) is required to be disclosed under Wisconsin Public Records Law.

Privacy Laws. Each party is respons·1ble for complying with the privacy laws applicable to its business. If Customer does not want AT&T to comprehend Customer data to which ii may have access in performing Services, Customer must encrypt such data so that it will be unintel!ig[ble. Customer is responsible for obtaining consent from and giving notice to its users, employees and agents regarding AT& T's processing the user, employee or agent information in connection with providing Service, Unless otherwise directed by Customer In writing, if AT&T designates a dedicated account representative as Customer's primary contact with AT&T, Customer authorizes that representative to discuss and disclose Customer's customer proprietary network information to any employee or agent of Customer without a need for further authentication or authorization.

LIMITATIONS OF LIABILITY AND DISCLAIMERS

Limitation of Liability.

EITHER PARTY'S ENTIRE LIABILITY AND THE OTHER PARTY'S EXCLUSIVE REMEDY FOR

DAMAGES ON ACCOUNT OF ANY CLAIM ARISING OUT OF AND NOT DISCLAIMED UNDER THIS

AGREEMENT SHALL BE:

FOR BODILY INJURY, DEATH OR DAMAGE TO REAL PROPERTY OR TO TANGIBLE PERSONAL

PROPERTY PROXIMATELY CAUSED BY A PARTY'S NEGLIGENCE, PROVEN DIRECT DAMAGES;

FOR BREACH OF SECTION 7 (Confidential lnfannation), SECTION 12.1 (Publictty) OR SECTION 12.2 (Trademarks), PROVEN DIRECT DAMAGES;

FOR ANY THIRD-PARTY CLAIMS, THE REMEDIES AVAILABLE UNDER SECTION 9 (Third Party Claims);

FOR CLAIMS ARISING FROM THE OTHER PARTY'S GROSS NEGLIGENCE OR WILLFUL

MISCONDUCT, PROVEN DAMAGES; OR

FOR CLAIMS OTHER THAN THOSE SET FORTH IN SECTION 8.1(a)Q)-0v), PROVEN DIRECT

DAMAGES NOT TO EXCEED, ON A PER CLAIM OR AGGREGATE BASIS DURING ANY TWELVE (12)

MONTH PERIOD, AN AMOUNT EQUAL TO THE TOTAL NET CHARGES INCURRED BY CUSTOMER

FOR THE AFFECTED SERVICE DURING THE TWELVE (12) MONTHS, OR THE LENGTH OF THE

CONTRACT TO DATE WHICHEVER IS SHORTER, PRECEDING THE DATE UPON WHICH THE FIRST

SUCH CLAIM AROSE.

EXCEPT AS SET FORTH IN SECTION 9 (Third Party Claims}, OF THIS AGREEMENT OR IN THE CASE OF A PARTY'S GROSS NEGLIGENCE OR WILLFUL MISCONDUCT, NEITHER PARTY WILL BE LIABLE TO THE OTHER PARTY FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, PUNITIVE, RELIANCE

(c)

8.2

8.3

9.0 9.1 (a)

(b)

(c)

OR SPECIAL DAMAGES, INCLUDING WITHOUT LIMITATION DAMAGES FOR LOST PROFITS,

ADVANTAGE, SAVINGS OR REVENUES OR FOR INCREASED COST OF OPERATIONS.

THE LIMITATIONS IN THIS SECTION 8.1 SHALL NOT LIMIT CUSTOMER'S RESPONSIBILITY FOR THE

PAYMENT OF ALL PROPERLY DUE CHARGES UNDER THIS AGREEMENT.

Disclaimer of Liability. AT&T WILL NOT BE LIABLE FOR ANY DAMAGES ARISING OUT OF OR

RELATING TO: INTEROPERABILITY, ACCESS OR INTERCONNECTION OF THE SERVICES WITH

APPLICATIONS, DATA, EQUIPMENT, SERVICES, CONTENT OR NETWORKS PROVIDED BY

CUSTOMER OR THIRD PARTIES; SERVICE DEFECTS, SERVICE LEVELS, DELAYS OR ANY SERVICE

ERROR OR INTERRUPTION, INCLUDING INTERRUPTIONS OR ERRORS IN ROUTING OR

COMPLETING ANY 911 OR OTHER EMERGENCY RESPONSE CALLS OR ANY OTHER CALLS OR

TRANSMISSIONS, (EXCEPT FOR CREDITS FOR SUCH SERVICE DEFECTS, SERVICE LEVELS,

DELAYS OR INTERRUPTIONS EXPLICITLY SET FORTH IN AN ADDENDUM, PRICING SCHEDULE OR

SERVICE GUIDE; LOST OR ALTERED MESSAGES OR TRANSMISSIONS; OR UNAUTHORIZED

ACCESS TO OR THEFT, ALTERATION, LOSS OR DESTRUCTION OF CUSTOMER'S (OR ITS

AFFILIATES', USERS' OR THIRD PARTIES') APPLICATIONS, CONTENT, DATA, PROGRAMS,

INFORMATION, NETWORKS OR SYSTEMS.

Disclaimer of Warranties. AT&T MAKES NO REPRESENTATIONS OR WARRANTIES, EXPRESS OR

IMPLIED, SPECIFICALLY DISCLAIMS ANY REPRESENTATION OR WARRANTY OF

MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE OR NON-INFRINGEMENT AND

SPECIFICALLY DISCLAIMS ANY WARRANTY ARISING BY USAGE OF TRADE OR BY COURSE OF

DEALING. FURTHER, AT&T MAKES NO REPRESENTATION OR WARRANTY THAT TELEPHONE

CALLS OR OTHER TRANSMISSIONS WILL BE ROUTED OR COMPLETED WITHOUT ERROR OR

INTERRUPTION (INCLUDING CALLS TO 911 OR ANY SIMILAR EMERGENCY RESPONSE NUMBER)

AND MAKES NO GUARANTEE REGARDING NETWORK SECURITY, THE ENCRYPTION EMPLOYED

BY ANY SERVICE, THE INTEGRITY OF ANY DATA THAT IS SENT, BACKED UP, STORED OR

SUBJECT TO LOAD BALANCING OR THAT AT&T'S SECURITY PROCEDURES WILL PREVENT THE

LOSS OR ALTERATION OF OR IMPROPER ACCESS TO CUSTOMER'S DATA AND INFORMATION.

THIRD PARTY CLAIMS

Infringement.

Parties' Obligations: AT&T agrees at its expense to defend and either to settle any third-party claim against Customer and its and the'1r respect'1ve employees and directors or to pay all Damages that a court finally awards against such parties for a claim alleging that a Service provided to Customer under this Agreement infringes any patent, trademark, copyright or trade secret, but not where the claimed infringement arises out.

of or results from: (a) Customer's or a user's content; (b) modifications to the Service by Customer or a third party, or combinations of the Service with any non-AT&T services or products by Customer or others; (c) AT&T's adherence to Customer's written requirements; or (d) use of a Service in violation of this Agreement Customer shall be responsible for any damages that a court may award against AT&T in any suit that alleges a Service infringes any patent, trademark, copyright or trade secret, due to any of the exceptions in the preceding sentence.

Infringing Services. Whenever AT&T is llable under Section 9.1, AT&T may at its option either procure the right for Customer to continue using, or may replace or modify, the Service so that it is non-infringfng, but if those alternatives are not reasonably achievable, AT&T may teITTlinate the affected Service without liability other than as stated in Section 9.1 (a). In the event that AT&T terminates a Service under this section, AT&T shall provide Customer written notice one-hundred and eighty (180) days in advance of the date of termination.

AT&T's Obligations Exclusive to Customer: AT&T's obligations and indemnities under this Agreement run exclusively to Customer and are not intended to extend to third parties that may use or be affected by Customer's use of the Services. Where Customer authorizes or permits third parties to utilize the Services, it is Customers responsibility to limit its liability to such parties, and, therefore, except to the extent AT&T is

9.2

9.3

10.0 10.1

(a)

(b)

10.2

11.0

11.1

11.2

11.3

11.4.

12.0 obligated to indemnify Customer under this Section 9, Customer shall be responsible for any damages incurred by AT&T lo such third parties.

Other Liabilities. AT&T shall indemnify and hold Customer harmless against Damages arising out of third party claims resulting from injury to or death of any person or loss of or damage to tangible real or tangible personal property, to the extent that such liability, loss, damage or expense was proximately caused by the negfigent act or omission or the willful or ·intentional misconduct of AT&T in connection with the provision or use of Services. AT&T shall not be liable under this Section 9.2 for Damages caused by the negligence or willful misconduct of the Customer or with respect to service or equipment lhat is not furnished by AT&T under this Agreement.

Notice and Cooperation. The party seeking defense or settlement of a third-party claim under this Section 9 will provide notice to the other party promptly upon learning of any claim for which defense or settlement may be sought, but failure to do so will have no effect except to the extent the other party is prejudiced by the delay. The party seeking defense or settlement will allow the other party to control the defense and settlement of the claim and will reasonably cooperate wlth the defense. The defendiiig party will use counsel reasonably experienced in the subject matter at issue and will not settle a claim without the written consent of the party being defended, which consent will not be unreasonably withheld or delayed, except that no consent will be required to settle a c!aim where relief against the party being defended is limited to monetary damages that are paid by the defending party under this Section 9.

SUSPENSION AND TERMINATION

Termination for Cause. Upon written notice, either party may terminate this Agreement, without liability, in the event of a material breach by the other. The party seeking tenninatlon shall provide the other party with written notice of such material breach and the opportunity to cure it, as fo!lows:

At least thirty (30) days in the event of a failure to pay any amount due and payable under this Agreement, subject to Customer's rights to dispute charges as set forth in Section 16.528 of the Wisconsin Statutes; and At least thirty (30) days in the event of any other material breach, provided that if the other Party is diligently working to cure such other material breach it shall have an opportunity lo cure for an additional thirty (30) days. If the breach is not cured within the periods specified above after delivery of the notice, the terminating Party may terminate this Agreement through a written notice that specifies the date of termination. The terminating Party shall have all rights and remedies generally afforded by law or equity, subject to the limitations in this Agreement.

Termination for Non-Appropriation. If Customer terminates this Agreement, any Addendum or any Pricing Schedule to the Agreement as a result of non-appropriation of funds by the legislature of the State of Wisconsln, such termination shall be without penalty to Customer;. If funds are not appropriated or are exhausted, AT&T shall have no further obligation to provide the Services beyond the date or amount of the appropriated funds.

INSURANCE RESPONSIBILITY

AT&T and its Affiliates shall:

Maintain worker's compensation insurance as required by Wisconsin Statutes, for all its employees engaged in the work.

Maintain commercial liability insurance against claim(s) of bodily injury or property damage which might occur in carrying out this agreement/contract. Limits shall be one million dollars ($1,000,000) per occurrence and in the aggregate for bodily injury and property damage including products liability and completed operations.

Maintain motor vehicle insurance for all owned, non-owned and hired vehicles that are used in carrying out this contract. Minimum coverage shall be one million dollars ($1,000,000) per accident combined single limit for automobile liability and property damage.

The state reserves the right to require higher or lower limits where warranted.

MISCELLANEOUS PROVISIONS

12.1

12.2

12.3

12.4

12.5 (a)

(b)

12.6

12.7

12.8

12.9

12.10 12.11

12.12

12.13

Publicity. Neither party may issue any public statements or announcements relating to the terms of this Agreement or to the provision of Services without the prior written consent of the other party.

Trademarks. Each party agrees not to display or use, in advertising or otherwise, any of the other party's trade names, logos, trademarks, service marks or other indicia of ori'gin without the other party's prior wrltten consent, which consent may be revoked at any time by notice Force Majeure. Netther party will be liable for any delay, faHure in performance, loss or damage due to fire, explosion, cable cuts, power blackout, earthquake, flood, strike, embargo, labor disputes, acts of civil or military authority, war, terrorism, acts of Go_d, acts of a public enemy, acts or omissions of carriers or suppliers, acts of regulatory or governmental agencies or other causes beyond such party's reasonable control.

Amendments and Waivers. Any supplement to or modification or waiver of any provlsion of this Agreement or any Addenda or Pricing Schedules hereto or documents referred to herein must be in writing and signed by authorized representatives of both parties. No course of dealing or failure of any party to strictly enforce any term, right or condition of the Agreement shall be construed as a waiver of such term, right or condition.

Assignment and Subcontracting.

AT&T may, without Customer's consent, assign in whole or relevant part its fights and obligations under this Agreement to an AT&T Affiliate. In no other case may this Agreement be assig.ned by either party without the prior written consent of the other party (which consent will not be unreasonably withheld or delayed).

Any such assignment without the prior written consent of the other party shall be void. In the case of any assignment, the assigning party shall rerna,in financially responsible for the performance of the assigned obligations.

AT&T may subcontract to an Affiliate or a third party work to be performed under this Agreement but will remain financially responsible for the performance of such obligations.

Severability. lf any portion of this Agreement is found to be invalid or unenforceable or if, notwithstanding Section 12.10 (Governing Law), applicable law mandates a different interpretation or result, the remaining provisions will remain in effect and the parties will negotiate in good faith to substitute for such invalid, illegal or unenforceable provision a mutually acceptable provision consistent with the original intention of the parties.

Remedies. Nothing in this Agreement is Intended to or should be construed to prohibit a party from seeking any and aH remedies available at law or in equity.

Legal Action. Any legal action arising in connection with this Agreement must be filed within four (4) years after the cause of action accrues, or it will be deemed time-barred and waived. The parties waive any statute of limitations to the contrary.

Notices. Any required notices under this Agreement shall be in writing and shall be deemed validly delivered if made by hand (in which case delivery will be deemed to have been effected immediately), or by overnight mail (in which case delivery will be deemed to have been effected one (1) business day after the date of mailing}, or by first class pre-paid post (in which case delivery will be deemed to have been effected five (5) days after the date of posting), or by facsimile or electronic transmission (in which case delivery will be deemed to have been effected on the day the transmission was sent). Any such notice shall be sent to the office of the recipient set forth on the cover page of this Agreement or to such other office or recipient as designated in writing from time ta time.

Governing Law. This Agreement will be governed by the law of the State of Wisconsin.

Compliance with Laws. Each party will comply with' all applicable laws and regulations and with all applicable orders issued by courts or other govern-mental bodies of competent jurlsdiction.

No Third Party Beneficiaries. This Agreement is for the benefit of Customer and AT&T and does not provide any third party (including Customer Users) the right to enforce it or to bring an action for any remedy, claim, liability, reimbursement or cause of action or any other right or privilege.

Survival. The respective obligations of Customer and AT&T that by their nature would continue beyond the termination or expiration of this Agreement, including the obligations set forth in Section 7 (Confidential Information), Section 8 (Limitations of Liability and Disclaimers) and Section 9 (Third Party Claims), will survive such termination or expiration.

12.14

12.15

INDEPENDENT CAPACITY OF CONTRACTOR: The parties hereto agree that AT&T, its officers, agents, and employees, in the performance of this Agreement shall act in the capacity of an independent contractor and not as an officer, employee, or agent of the State of Wisconsin.

Entire Agreement This Agreement sets forth the entire understanding of the parties and supersedes any and all prior agreements, representations, and understandings relating to the subject matter hereof. No modifications or subsequent agreements concerning the subject matter of this Agreement shall be effective unless made Jn writing and signed by the parties: Except for those documents referenced in Section 1.2 (Priority of Documents), neither AT&T nor Customer shall be bound by any electronic or pre-printed ternis additional to, or different from, those in this Agreement that may appear in the other party's form documents, orders, acknowledgments or other communications. The parties acknowledge that this Agreement may be amended by mutual agreement to add new Services subject to the original scope of the procurement RFP 28008-LAA and to modify and delete Services.

LIST OF ADDENDA:

Exhibit 1 -AT&T Acceptable Use Policy Exhibit 2-AT&T Unified Communications Services Exhibit 3 -AT&T Audio Teleconference Services

®at&t AT&T MA Reference No _____ _

AT&T INTEGRATED PRICING SCHEDULE

(for Telecommunications-Hosted VoIP RFP 28008-LAA)

State of Wisconsin Department of Administration Street Address: 101 E_ Wilson

Name: Susan Canty Title: Director, Bureau ofBusiness Services Street Address: 101 E, Wilson City: Madison State!Province: WI Zip Code: 53703 Country: USA Telephone: 608-264-6186 Fax:

Email: susan_canty@wisconsin,gov

AT&T Corp, Name: Suzanne Wagner Street Address: 316 W Washington Avenue City: Madison State/Province: WI Zip Code: 53703 Country: USA Telephone: (608) 252-4697 Fax:

Email: sv1291@atl,com Sales/Branch Manager: Tom Taibl SCVP Name: Roger Blake Sales Strata: GEM Sales Region: MW-GEM With a copy to:

Customer Acccunt Number or Master Account Number. AT&T Corp, One AT&T Way Bedminster, NJ 07921-0752 ATTN: Master Agreement Support Team Email: mast attcom

This Pricing Schedule is for the Services set forth in Section 1 of this AT&T Integrated Pncing Schedule and is part of the Agreement between AT&T and Customer referenced above, eGRM SR ID 1-GESWIE SOWD OA_I nl€gPSv09C _ 082412js397 4

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~at&t AT&T MA Reference No. ____ _

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(for Telecommunications-Hosted VoIP RFP 28008-LAA)

1. SERVICES

AT&T Service Guides are published at http:llserviceguidenew.att.com/. At the website, select SG Library from the left menu.

Then, select the applicable Service Guide as needed. Service publications are alphabetized within their Category. The following sections of the Service Guide are the only sections applicable for the Services covered by this Pricing Schedule.

AT&T Unified Communications Services A

AT&T T eleConference Serv·1ces B

Unified Communications and Collaboration

Integrated Offers

AT&T Unified Communications Services

AT&T Audio Teleconference Services

2. PRICING SCHEDULE TERM AND EFFECTIVE DATES

3. MARC

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60 months

Effective Date of this Pricing Schedule

First day of the first full billing cycle following the Effective Date of this Pricing Schedule

Effective Date of this Pricin Schedule

None

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First day of the first f'Jll bHling cycle following the Effective Date of this Pricing Schedule

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(for Telecommunications-Hosted VoIP RFP 28008-LAA)

EXHIBIT A

AT&T UNIFIED COMMUNICATIONS SERVICES

1. PRICING SCHEDULE EARLY TERMINATION FEE

One month of the monthly recurring charge (MRC) for AT&T UC Voice-Voicema·11 Services multiplied by 19,500 (the "CommHment ---·- _Quantity") multiplied by_ the number of artial or full ears remainin in the Pricin Schedule Term.

2. ADDITIONAL TERMS AND CONDITIONS

2.1 E911 Acknowledgement

Customer acknowledges that it has received and understood the advisories concerning the circumstances under which E911 service may not be available, as stated in the Service Guide found at. http://serviceguidenew.att.com. Such circumstances include, but are not limited to, relocation of the end user's CPE, use of a non-native or virtual telephone number, failure in the broadband connection, loss of electrical power, and delays that may occur in updating the Customer's location in the automatic location information database.

2.2 Intellectual Property; Grant of License; Limitations of License

2.2.1. Scope of Licenses.

AT&T grants Customer a limited, non-transferable (except in accordance with authorized assignment of Customer's Agreement), non sublicensable non-exclusive license, in object code only, to use the Service as described in the Service Guide, including the Software provided as a component of the Service, in accordance with this Pricing Schedule. This license grant is intended to give Customer only a personal, not a property, interest in the Service and the Software. All intellectual property and proprietary rights arising by virtue of AT& T's performance of the Service, including the provision of Software, are and will be the sole and exclusive property of AT&T, its subcontractor(s) or its supplier(s), and neither ownership nor title to any such property will pass to Customer. The license to use the Software is specifically limited to allow Customer to:

o permit End Users to access and use the licensed Software for the purpose of conducting UC communications in accordance with the additional Software product rights and limitations set forth herein and in the related user documentation;

o reproduce the Software solely for the purpose of installing and using it in accordance with the additional Software product rights and limitations set forth herein and the related user documentation;

o access, download, use and reproduce the client for installation and use by End Users on any computer owned or controlled by Customer, and authorize any third parties to access, download and use such modules on any computer owned or controlled by such third parties for use only with communications initiated by End Users; and o make a reasonable number of copies of the related user documentation that accompanies the Software.

2.2.2. Limitation of Licenses.

Customer may allow Customer Affiliates to use the Service pursuant to this Pricing Schedule, provided that Customer shall remain responsible for payment and compliance by such Customer Affiliates with the terms of this Pricing Schedule, including enforcing restrictions with respect to the number of End Users licensed. The licenses granted under this Pricing Schedule do not authorize Customer (nor may Customer allow any third party, including Customer Affiliates) to: (a) copy, distribute, reproduce, use or allow third party access to the Software except as expressly authorized under Customer's Agreement; (b) decompile, disassemble, reverse engineer, translate, convert or apply any procedure or process to the Software in order to ascertain, derive, and/or appropriate for any reason or purpose, the source code or source listings for the Software or any trade secret information or process contained in the Software; (c) unless approved by AT&T, modify, incorporate into or with other software, or create a derivative work of any part of the Software; (d) use, access or allow access to the Software in any manner to provide service bureau, time-sharing or other computer services to third parties; (e) disclose the results of any benchmarking of the Software, or use such results for its own competing eCRM SR ID 1-GESWJE SOWDOA_I ntegPSv09C _082412js397 4

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®at&t

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(for Telecommunications-Hosled VoIP RFP 28008-LAA) software development activities, without the prior written consent of AT&T; or (fj resell, sell, offer to sell or otherwise provide for a fee access to the AT&T Unified Communications Services.

2.2.3. Third Party Licenses.

The Service may incorporate, use, or access software not written or developed by AT&T but, instead, provided by third parties (Third Party Software). The license terms associated with any Third Party Software require that AT&T acknowledge those third parties and the license terms. AT&T shall have no liability or responsibility for the operation or performance of the Third Party Software, and shall not be liable for any damages, costs, or expenses, direct or indirec' arising out of the performance or failure to perform of the Third Party Software. Customer agrees that its use of the Service is subject to the terms of Third Party Software Notices and/or Additional Terms and Conditions which can be found at http://www.uc.att.comllicense thirdparty.html (generally found in the "About" option in the Software). Customer agrees to the terms of any and all such licenses, including any posted changes to these terms except where such Third Party Software Additional Terms and Conditions confiict with State of Wisconsin law or regulation, in which case the applicable State requirement shall govern.

2.2.4. Intellectual Property Rights.

AT&T and its licensors own and will continue to own all rights, title, and interest in the Software and Third Party Software. Customer shall not delete or in any manner alter or obscure the copyright, trademark, and other proprietary rights notices of AT&T and its licensors, which appear on the Software and Third Party Software as delivered to Customer. For the avoidance of doubt, the Software is licensed, not sold. All intellectual property and proprietary rights aris'1ng by virtue of AT&T's performance of the Service are and will be the sole and exclusive property of AT&T, and neither ownership nor title to any such property will pass to Customer.

2.3. Headquarter Credit

AT&T will bill and collect on Customer's behalf a Headquarters Credit according to Section 6.6 of the Master Agreement referenced above. AT&T will bill and collect the Headquarters Credit based on the total amount of Users (Customer and Authorized) for the Service Components included in the table below in this Section 4.3. _The Headquarters Credit for each monthly invoice shall be calculated by multiplying the total number of Users (Customer and Authorized) for each Service Component by the Monthly User Fee listed. No prorated charges will apply unless the invoice tor Services is prorated.

Enhanced UC Voice Standard UC Voice+ Unified Messaging Standard UC Voice must be ordered in combination with "UC Voice - Voicemail" Basic UC Voice UC Voice - Unified Messaging UC Voice -Voicemail

AT&T will ccllect the User Fee from the Customer Users and Authorized Users on the Customer's behalf on a monthly basis. AT&T will remit the User Fee payments to Customer, within 30 calendar days from the date of invoice. For each Headquarter Credit paid, AT&T shall provide an itemized, auditable report(s) from the billing system detailing each User Fee payment.. AT&T is not required and shall not pay interest on collected User Fees.

The Headquarters Credit shall be separately idenofied on the invoice remitted to the Customer. AT&T will determine in its reasonable discretion the format and amount of detail to be provided in the monthly invoices to End Users (Customer and Authorized) subject to prior mutual negotiation by the parties and approval by the Customer. Where AT&T documents additional costs to meet Customer's requirements, AT&T will provide an itemized estimate of such costs and the parties will work to negotiate a mutually agreeable resolution.

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AT&T INTEGRATED PRICING SCHEDULE

(for Telecommunications-Hosted VoIP RFP 28008-LAA)

Upon Customer request, AT&T will change the Headquarter Credit up to six (6) times during the term of the Pricing Schedule at no additional charge. Customer will give AT&T, via correspondence to be sent to their AT&T Sales Team, at least ninety (90) advance notice of a change. The correspondence must include the User Fee to be changed and/or the applicable Service Components, the service description and the amounts to be changed.

Customer may request from AT&T to bill and collect a Headquarters Credit for additional Service Components provided that the parties will cooperate in good faith to amend this Section 4.3 as may be necessary to collect and bill for those User Fees.

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AT&T INTEGRATED PRlCING SCHEDULE (for Telecommunications-Hosted VoIP RFP 28008-LAA)

AT&T UC Central for Mobile plus PC (Mobile Client + PC Client)'

AT&T UC Central for PC plus Enhanced UC Voice (PC Client+ Enhanced UC Vorce)'

AT&T UC Central for Mobile Plus PC and Enhanced UC Voice (Mobile Client+ PC Client + Enhanced UC Voice)'

Enhanced UC Voice (Standard UC Voice + Unified Messaging) Standard UC Voice (must be ordered combination w"rth "UC Voice-Voicemair' Basic UC Voice

PC Add-On"

Mobile…