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HomeMy WebLinkAboutC2007-339 - 11/13/2007 - Approved~~TwA.RE NIAINTENANE AGREEMENT BETWEEN: Ci#y of corpus Chris#i 1201 Leopard St. Carpus Christi, Texas 78401 {Hereinafter referred to as "LICENSEE"} And INF~OL, INS, Two Allen Center 1200 Smith 1 G~` Floor Houston, Texas 77x02 ~Hereinaiter referred to as "LICENSOR"} TERM; 1-01-248 to f 2-~~~2DOS WHEREAS, LICENSOR has licensed to f,ZCENSEE the software as specified in schedule A and the LICENSEE wishes to have LICENSOR perform software maintenance services on the licensed software pursuant to the fallowing terms: I. DEFINITIONS A, af~ware. The term "Saflware" shall mean the computer programs in abject code and source code and documentation including any corrections, bug fixes, enhancements, updates ar other madif cations, including custom madif~catians, to such computer programs and documentation for those products listed in Schedule A of this agreement, B, S~rstem. The term "System" shall mean all Saftwware, maintenance, equipment, system ar database management software, and other services provided by LICENSOR under the terms and conditions of the Software License Agreement. Narrr~al Business Hours. Normal Business Hours far LIEI~OR for purposes of this agreement are: Monday through Friday 8:00 am - 5;~0 p,m, CST Excluding LICENSOR's holidays: New Year's Day Memorial Day Independence Day Labor >~ay Thanksgiving Day Friday after Thanksgiving Christmas Eve Christmas Day ~If ~ ~~heduled holiday falls on a weekend, it will be taken an either the previous Friday ar subsequent Monday.} D. Critical incident. A problem or error has occurred that has caused the software ar a major portion of the software to be inoperable, 247-339 1I113~~7 1VI20~7-259 Infaol, Inc. E, Priyrit~ incident. A problem ar error has occurred that does not prevent use of the product, but affects LICEN~EE's ability to conduct business, A workaround may exist, but is currabersorne or time consuming. l~. Non-priority incident, A minor problem which may be cosmetic or may affect usability, but for which there is an easy workaround. II. SCOPE OF wOR~ A. This agreement covers at na additional cost to LICENSEE:: 1, 1~easonable amounts afconsultatian by telephone to LICENSE' designated contact for questions concerning operation of software. LICENSEE' designated contact must have attended LICE~SOR'S training classes for the supported product~s~, LICENSOR agrees to train up t4 six ~G} employees of the LICENSSEE' as part of this initial agreement. Once those sic have been trained additional fees will be accessed accordingly as outlined in Schedule E of this document to be paid by the LICENSSEE. 2, Fixes for any errors or inconsistencies in the software, oz failures of the software to perform in accordance with the License Agreement or software manuals notified to LICENSOR by LYCI~NSI~~ during the term of this agreement. LICENSEE shall assist LICENSOR in identifying the circumstances in which such errors or inconsistencies were discovered and in providing documentary evidence of the sanxe, 3. New releases to existing saf~ware and related documentation. One mayor release annually and other releases as required due to changes in State and Federal requirements andlar software error COITeCt10n. B. Items not covered under this agreement will be billed per LICENSOR's standard support charges. LICENSOR will notify LICENSEE when a request far assistance is not covered under this agreement and will be billable and will receive approval from LICENSEE before the services are performed. This agreement does not cover: I . Programming far customized development or modif cations requested by LICENSEE. 2, Operational problems with products not covered by this agreement. ~. Errors caused by customer misuse of the software. 4. Recovery assistance necessary due to negligence of LICENSEE or Acts of Ood, 5. Installation expense for system enhancements. ~. Continuing education and training. 7. Nan-critical support calls initiated outside of normal business hours. $, Installation, maintenance, and training of hardware, operating systems, databases, and third party software, ~. CL1Stamltfan I . LICENSEE shall submit a written request far any custom work. 2, ~ZCENS~R will review the custom work requests and present LZCI~NSEE with a written definition of customising to be performed, a time schedule and a price quote, 3. LICENSOR will begin work only after receiving written confirmation by LICENSEE, 2 III. PROCEDURES A. Telecnmmunicatians, LICENSEE shall install and have operational at the tune of software installation and during the term of this agreement a PPP connection, or VPN, or a S~k modem and dial-up telephone line along with the required third-party safl~ware fur LICENSOR'S use in diagnosing reported incidents. I1ong distance charges will be reviewed annually and if they exceed 1 ~°Io of the annual support fee far that year an adjustment may be made to next year's annual support fee. E. Dia~nasis and response. LICENSOR will provide problem diagnosis for incidents reported by LICENSEE and will supply program fixes or solutions in a timely manner consistent with the urgency of the problem, LICENSEE mill send written documentation of the problem including its priority to LICENSOR. 1. Critical Incidents. LICENSOR will respond immediately to diagnose the problem. LICENSOR will work diligently with LICENSEE to correct the problem as soon as passible, ~. Priority Incidents, Licensor will respond within two {2} hour of notification by LICENSEE to diagnose the problem, within fvrty~eight ~4II} hours, LICENSOR will either provide a solution to the problem ar mutually agree with LICENSEE upon a schedule far implementation ofa solution, 3. Nan-Priority Incidents. LICENSOR will respond within twenty-four ~~~} hours, LICENSOR will provide a solution to the prablern in the next release of the saflware. 4. LICENSOR and LICENSEE may agree that problem investigation would be better conducted at LICENSEE'S lacatianF In the event that LICENSOR'S personnel travel to LICENSEE'S location, LICENSEE will pay LICENSOR for travel and subsistence expenses. If LICENSOR, in its reasonable judgment, determines that a suspected error condition was attributable to a cause other than an error in the Sanware, then Licensee will pay far LICENSOR'S efforts an a time and materials basis. C. Escalation Process, If a problem is oat addressed in a timely manner, LICENSEE may escalate the support process by contacting the Custarr~er Support 1Vlanager, then the dice President of Professional Services, and then the President. I~. TERM AND TERMINATION a. Term. The term of this agreement shall commence an 1-01-~OaB and shall continue until I2-31-~aOS. Subsequent ternns will be far a period of one year, after which either party an thirty ~~~} days prior written notice ruay terminate this agreenent. LICENSOR retains the right to increase annual maintenance fees at the beginning of each subsequent term, Should LICENSOR elect to increase annual maintenance fees, LICENSOR will give notice of such increase to LICENSEE thirty ~30~ days prior to the camnYencement afthe subsequent term. b. Renewal, This agreement may be renewed for successive, one-year terms upon the terms and conditions stated herein, At each subsequent renewal, the annual fee shall not increase mare than 1 ~°Io greater than the then current maintenance fee charged by LICENSOR to LICENSEE. c. Termination, Either party may terminate this agreement in the event of default by the other party. In the event of ter~ninatian by LICENSOR ar default by LICENSOR, fees paid by LICENSEE for any period after the termination date shall be refunded by LICENSOR. In the event of termination by LICENSEE or default by LICENSEE, any maintenance fees up to the terrr~inatian date shall became due and payable and fees previously paid shall oat be refundable. ~. PAYMENT LICENSEE shall pay to LICEN~R the annual maintenance fee designated far each product listed in schedule A. subsequent annual fees will be payable in advance. If the annual support fee is not paid within 9D days of the invoice date, this offware Maintenance Agreement shall be void, A reinstaterrtent penalty of SO°1o of the invoice amount shall be assessed in addition to the regular fee and must be paid in advance 1n order to reinstate the agreement. '~l, TYTL1~ Any changes, additions or enhancements in the form of new ar partial programs or documentation as may be provided under this agreement shall remain the property afLI~EN~R, are proprietary to LICEN~DR and title thereto remains with LIEN'ORF III. GENERAL PR~~ISIDN A. Assi nment. Neither LIENEE nor LICENSER shall assign ar otherwise transfer any right of interest in this Agreement, in the 5aftwware, or any components of the Soffware, and expressly including, without limitation, the source code, in whale or in part, to anyone, including any parent, subsidiaries, affiliated entities ar third parties, or as part of the sale of any portion of its business, ax pursuant to any merger, consolidation or reorganization, including by operation of law, without the other party's prior written consentF B. Entire Agreern~nt, This document and its incorporated documents ernbadies the complete agreement of the parties hereto superseding all anal ar written previous and contemporary agreements between the parties relating to matters herein and, except as otherwise provided herein, cannot be modified without written agreement of the parties. everabili Zf any provision of this Agreement shall be held to be invalid, illegal ar unenforceable, the validity, legality and enfaXCeability of the remaining provisions shall not in any way be affected or impaired. D. ~avernin Law• venue. This Agreement and all of the transactions contemplated herein shall be governed by and construed in accordance with the haws of the state of Texas. The provisions and obligations of this Agreement are performable in Nueces bounty, Texas such that exclusive venue far any action arising out afthis Agreenent shall be in Nueces County, Texas, E. Hea____ dins. The headings of this Agreement are far the convenience of reference only and shall not affect in any manner any of the terms and conditions hereof. F~ Notices. All notices given hereunder will be sent registered, certified, ar overnight delivery, addressed to the atheX party at the address shown in the first paragraph of this Agreement ar other such address as either party may specify in writing. G. Insurance. LI~EN~OR shall at Licensor's own expense, procure and maintain fax the duration of this Agreement, insurance against claims for injuries to persons ar damages to property which may arise from or in connection with the performance of the work hereunder by LI~EN~R, its agents, representatives, etnplayees or subcontractors. H. Farce Ma'eure, Neither party shall be in default nor otherwise liable far any delay in ar failure of its performance under this Agreement if such delay ar failure arises by any reason beyond its reasonable control, including any act of Cad, any acts of the common enemy, the elements, earthquakes, floods, fires, epiderr~ics, or riots. The parties will promptly inform and consult with each other as to any of the above causes, which in their judgment may or could be the cause of a delay in the performance of this Agreement. I. Insurance, Licensor agrees to comply with the attached insurance requirements. VIII. UPGRADE LICENSEE will be given proper and timely written notice addressing upgrade issues. The LI~ENEE will have ~0 days to reply to such native. Aber 3a days, LICEN~R will allow the LICENSEE 120 more days to install the upgraded software. The LICENSEE is required to stay current an LY~E~I~R'S latest release of the Software. If LICEIVEE chooses not to upgrade, then LIEN~R will have na other choice but to disvontinue maintenance on Licensee's software. In order far the LI~EN~R to provide the "best" and "least expensive" support to all our LICENSE, then LIEN~R requires that all LICENSE stay current with our software, LIC~N~R shall provide upgrades at nv additional cost to LICENSEE. Should LIEN'~EE choose not to utilize the upgrade, LICENSQR shall Refund pro rata share of the annual maintenance fee IN wITNE H~1~~OF, the parties ha~re caused this Agreement, which shalt insure to the benefit of and be binding upon the successors afthe respective parties, for the term specified and an~r subsequent renewals. iNF~S~L, INC. ~~ r ~~« Signs ~ 6 h~e -~ ~a 2 ~- Name . ~ ~ Title Date: ~ ~ ~ 2 '~- Z ~ /k~0o7-a ~~1.~uY~o~~zt~~ ~, 3 0 iY C~UI~CIL SECitETA~ R 1..`" C~T~ ~F C~R~U~ CHRIST ~~. Slgn~ ~ ~~ Name ~'itle Date: ~ ~ ' l ~ ~ ~~ . ~~ ~~ ~ ~° ~'~: ~.isa Agt~~la~ As~sta~I i ~ may ~0~ icy ~t~~r~e+~ Product Annual Maintenance Fee Year three Annual support for 54,~~.42 ~~URT~DUE ~~~U I~HRYTI 1VIUNII~IPAL ~'I~URT S~EUULE B -STANDARD ~PPO~T ~A~~ES 1. Support from INFOS~L office: A. custom Programming Requests $175.00 per hour B. 1`]atabase Performance Evaluation $4U~.Oo Database Administration services $175.00 per hour D. Hardware support Services $175.00 per hour E. Other services Not hovered by Maintenance Agreement ~175.OQ per hour ~. ~o-Sate Support. A. On-Site customer mill be billed; ~I~0,00 per hour B~ Required parts and Material Actual Expense . All reasonable travel related expenses as described; * Travel by automobile from the time a Inf~sol technician leaves Infasol office until helshe returns Per Standard IBS date Travel time X50.00 per hour Required air fare and car rental paid by customer Actual Expense • f f an overnight stay is required, reasonable lodging ar~d meals are paid by customer Actual Expense 3, ~ommunicataons (i.e. long distance and modem charges pertaining to support Actual Expense 4. continuing Education and Training ~,0~0.04 per day at LIP~NSE~'S facility Plus travel related expenses ~. invoice payment terms are NET 30 A~'. All the above pricing is subject to change with 30 days prior notice, S S~FD~LE - DEFINITIONS AND EXAl1~PLF 4F I~~EID AND NI~N-CI~~E~~D ~UPPDRT TERM (`nv~r~d Items: l , what is "Reasonable arnaunts of consultation by telephone;" A, Reasonable amounts of consultation is defined as the practical amount oftime necessary to assist a fully staffed court and application trained person in resolving operational questions concerning the software. Such questions may consist of: ~ 1 } ~Iaw da I run a particular function within the program and haw often' ~2}where do I find ~ particular function within the program? ~3}what data elements are required in a specific area of the program? B. Telephone guidance for untrained employees will not be provided under this agreement. 2. Infasal Operational Enhancements which are covered: A. An operational enhancement is a change to a current feature of the software making the feature easier to use. It could have expanded capabilities, improved audit trails, stranger user control, ar all ofthe above, An exarriple includes: ~ 1 } Covered enhancement would include any enhancement request, which is approved by the Infasol enhancenae~at committee as a valuable addition to the saf~ware package for all ar a n7ajarity ofthe clients. 3. Mate Required Enhancements: A. The Mate mandated a new report, a change to an old report, or the capture and maintenance of new data elements. An example includes; ~1}State requiring the collection afadministrative and education cast far law enforcement officers. 4. New Features ar modules purchased by LYCENSEE from LICENSOR which were not original part of the base system and presently incorporated in this agreement, may incur an additional maintenance fee but will be included under this maintenance agreement once purchased. Not Covered Items: 1, fang Distance Telephone Charges and Long Distance Modem Charges for items not covered by this maintenance agreement with be charged at actual expense. 2. Custami~ed Programming; A. Custom programming ~s performed at the request of the Custam~er far changes to a current program ar the development of a new ar additional program, Examples include; ~ 1 } The saflware provides a standard data entry screen. The customer requests a madiftcation to this screen. ~2} Customer requests defendant's driver's license number be included an the cash list, 3. This Product under Another hardware andlor Software Platform; A. Infasol Software and third party products must be compatible with the operating system and hardware far which the software is designed, Examples include: ~1}Customer operates a single user DOS version oflnfosol saftvvaro, WordPerfect and Informix, ~~} Customer desires to upgrade to a multi-user envlran;ment, This upgrade requires the purchase of the multi-user version of the operating system, ~nfosal Software, WordPerfect and Informix, 4. Interfacing Ta Peripherals Such As Personal Computers, Terminals, Printers, Modems, etc, ; A, Interfacing to peripherals requires both hardware and saf~ware communication. The peripheral must be physically connected to the computer, The operating system must be configured to support the peripheral. S. Operational problems with Products Not Covered By "A support Agreement"; A, The Infasal ~aftware Maintenance Contract i solely for the support and maintenance of Infosal sa~ware and DOES NOT include the support ar maintenance afother ~custamer awned} sa~ware ar hardware products. d, Errors Related to User Misapplication: A. Erroneous erasure o€ data or programs andlor misapplication of data An example is: (1 }Erasing data in error ar a wrong date an a large number of records requires Infasol to write a routine to recover ar correct the information. 7. Recovery Assistance: A, Restoring the system to a useable state. An example is: ~ 1 }The hard drive an the computer is damaged during relocation andlar an Act of Crad, requiring Infasal to restore programs andlar data to a repairedlreplaced hard drive. I~. Continuing Education and Training: A, Education and training of operational andlor state enhancements, the purchase of additional modules, the purchase of a new release or product capability, Examples include: ~ 1 }Enhancements to the original version purchase. ~2} Addition of a module oat purchased at the time of sale, ~3}New employees ar additional users. 9, Installation ofEnhancementsF A. Installations of enhancements whether operational ar state required are provided by electronic media. These saffware changes must be loaded to the Customer's computer before operation of the enhanced progamm by the user. In loading the so~ware changes, alterativr~s to the database that stores user information maybe required. If sa, the Customer's current database must be converted to the altered format before operation of the enhanced program. The complexity of alterations and~ar enhancements may require additional training. IO ~I~I~I1j ~~~~ fi~!! TAT EN~IR~NMENT: Infoso~ will provide installation of software into a test environment prior to installation into production for a test period to be determined by agreement h~tween ~ice~rsee and lrce~sor. standards for the test environment will dup~~eate production environment standards and will ~e used far testing and validation of the software prior to installation onto the production environment. INURA111CE REC~UIRE~IENTs 1. I.ICENaOR'S INSURANCE A. Licensor must not commence work under this agreement until all insurance required herein have been obtained and the City has approved such insurance. Licensor must not allow any subcontractor to commence work until all similar insurance required of the subcontractor has been obtained. B. Licensor must furnish to the City's Risk Manager, two {2} copies of Certificates of Insurance, showing the following minimum coverage by insurance cor~pany~s} acceptable to the City's Risk Manager. The City must be named as an additional insured for the General liability policy and a blanket waiver of subrogation is required an all applicable policies. TYPE OF 1NURANCE Mlltlll~U~l INSUI~AI~CE COVERAGE 3~~Day written notice of cancellation, non-renewal, Bodily Injury and Property Damage termination or material change and ~ 0 day written Per occurrence aggregate notice of cancellation i re aired on all certificates COMMERCIAL GENERAL LIABILITY including: $~0~,~00 COMBINED BINDLE LIMIT 1. Commercial Form ~. Premises -Operations ~. Productsl Completed Operations 4. Contractual Liability ~. Independent Contractors G. Personalln'u AUTOMOBILE LIABILITY ~. OI~IINED, NON-O1fVNED or RENTED $~,~a~,Daa COMBINED BINDLE LIMIT V~fORiSERB COMPENSATION vVhich complies with the Texas vVarkers' Compensation Act and Section II of this exhibit EMPLOYERS LIABILITY ~ao,oao~~ao,aoo~~oo,aoo PROFESSIONAL LIABILITY including: ~~~a,aao COMBINED INLE LIMIT Coverage provided must cover officers, directors, Defense casts not included in face vice of the policy} employees and agents ~ . ERRORS and OMIION in the event of accidents of any kind, Licensor must furnish the Risk Manager with copies of ail reports of any accident Within ~1~}ten days if any accident. ADDITIONAL REQUIREMENT ~. Licensor must obtain workers' compensation coverage through ~ licensed insurance con~pan~ obtained in accordance with Texas law, The contract for coverage must be written on a polio and endorer~ent approved b~ the Texas Department of Insurance. The coverage provided must be sufficient to assure that all workers' compensation obligation incurred by the Contractor will be promptly net. B. Certificate of Insurance: l2 The City of Corpus hrESt~ must be named as an additional insured on the general Liability policy and a ~lanke# waiver of subrogation is required cn all applicable policies. If your insurance campa~ny uses the standard ADORD farm, the cancellation clause bottom rights must be amended by adding the warding "changed or" between "be'" and iicanceled", and deleting the words, '"endeavor to", and deleting the wording after "left". ~`he name of the project must be listed under "Description of operations" At a minimum, a 30-day written notice of cancellation, non-renewal, termination or material change and a ~O~day written notice of cancellation for non-payment is required. B. If the Cerkificate of Insurance does not slow on its face the existence of the coverage required by items ~ .B ~1 }-~5~, an authorized representative of the insurance company must include a letter specifically stating whether items ~ .8. ~~ }-~6~ are included or excluded. 13