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,
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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.
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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
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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.
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