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HomeMy WebLinkAboutC2007-430 - 12/7/2007 - NAopYogic, Inc. ~FTwAR ~TP~RT AND I~IAIT~NANE AREENIENT T~1S S~FTwA S~JPPDRT AND ~.ATENA~[~ AC~I~NT {<`Support Agreement"~ is made an this ~ day of V~_, U~7, by and between the ~ of corpus hr~sti, a municipal corporation under the laws of the State ofTe~as ~"customer" and a to ic, inc., an e~istin U.S. ~ ~ g corporation, whose address is ~ ~ arl~et I~lace #~~~ San Damon, ~. 94583 ~"~arnpany" } E~ITALS: ~ustorner has obtained a license to use the Desl~ ~cer Online Reporting System ~"Software"~, more particularly described in the Software license Agreement of the same date. uston~er wishes to retain ~on~pany to provide software maintenance and support services far the Software. Support Services l . generally. During the duration of this Support A~reen~ent, company shall provide to the ustorner support and maintenance for the Software purchased in accordance with the terms of this Support Agreement and the response time described in Schedule A, attached hereto. Support includes, without limitation, periodic review of current outstanding questions and usage issues, the provision of new and upcoming releases of updates, and customizations and enhancrrients made to the Software that the Customer is licensed to use that are generally made available without additional charge to other users of the Software with si~nilax support and maintenance contracts, The parties shall amend Schedule B frarn time-to^tirrie ire the avent that the usta~ner purchases ar is granted the right to use additional modules of the aftware. 2. Fours of Support. on~pany will provide the support services during the hours as described in Schedule A attached hereto. 3. New Releases. company will, from tune-to-time issue new releases of the softwware Schedule B~, and when it does, it will immediately provide a cagy of the release documentation, and updated user or system documentation. ~f any part of the ustorner's custom code is not part of the general release delivered by Company, then orr~pany will assist and provide guidance for integrating the custom code into the new release. Any tune taken to modify or repair unauthorized changes that may require arnpany assistance to modify maybe billed at ampanys' then current pricing schedule. 4. ~~ceptions. company is not responsible for maintaining unauthorized customer n~adified portions ~f the aware, ustorner data flies or far ma~ntaln~ng portions of the Software affected by unauthorized ustorrYer modified portions of the So~ware. The customer agrees that the equipment on which the Software operates will be operating properly at all tines and must have been and continue to be properly maintained by the manufacturer of the equipment or a properly ~ual~f led se~lce oran~zatlan. corrections for difficulties or defects traceable to the customer's errors or unauthorized changes, ustamer's hardware, or conflicts with other software not identified by on~pany as compatible or part of the recomendod operating environment maybe subject to billing at on~panys' current standaxd time and material charges. The customer will be ~~0~-4~~ 121D7~~7 ~~reement op~o~ic, inc. responsible for properly testing and applying routine virus updates and security patches without the need for additional ompanys' notlcatron. company will be responsible for testing ompanys' software updates prior to nuking them available to the Customer. The ustan~er acknowledges responsibility for testing Con~panys' software updates before applying them to the Custarrier' ~ production systems. For servers running Companys' software, the Customer acknowledges responsibility for communicating v~ith o~npany prior to installation ofnon- Campanys' software service packs, implementation of new releases ar versions of non Companys' software, or installation of new non on~panys' software products. Except for emergency replacement of a failing server, the Customer a~cknawledges responsibility for communicating with Company prior to replacing a server on which Companys' software is being used. Company i not responsible for changes if related to or caused by software not provided by arnpany, For workstations running Company's software, the Customer acknowledges responsibility to test new workstation configurations, so~ware service packs, new releases or versions of saf~ware, and new software products prior to implementation, 5. Limitations. Company nay, in its sole discretion, limit or suspend Customer's access to support, pursuant to this Support Agreement, where { 1 } customer is in material default under the terms of this Support Agreement {non-payment is deemed to be a material default}, or {} ustarr~er fails to provide adequately trained staffto administer the Software. Prior to limiting ar suspending support, on~pany will give the ustamer 4 days written notice of its intention to da so and actively participate with the Customer to remedy any such default ar failure, ~. Term. 'This Support Agreement expires one year after its executiart, However, within thirty {~a} days prior to its expiration, company shall send to the customer an invoice for an annual "Renewal Support Fee". The sending of any such invoice will constitute an irrevocable offer to extend the Support A~reen~ent for the period and fees set forth in the invoice, rvhieh may be accepted by the ~ustamer in its sole discretion as hereinafter set forth. Termination of the support agreement pr~ar to Its expiration shall not result In the refund of partial service fees. The Customer's payment of an annual Renewal Support Fee in response to an invoice prior to the expiration date of the Support Agreement, or within forty:five {4~}days after the date of Company's invoice, whichever is later, will extend the Support period for the period of one year from its previous expiration date, or for the period set forth in the invoice if different. 7, Adjustments to `Terms and Conditions. Company may change the Annual Fee and the terms and conditions of this support agreement provided that written notice is given to the ~ustamer thirty {3~} days prior to the expiration ofthe current term, Cost S. Annual Fee. `The ustarner shall pay ornpany an Annual Support and Maintenance Fee far which support i being provided {see Schedule B for base Annual Support and Maintenance Fee}, Annual Support and Maintenance Fee for the first {1~~} year is due upon execution of this agreement and will then reoccur art the anniversary date a#`the execution of this agreement far each year thereafter. Far a period of throe {}years following execution of this Support Agreement, the Annual Fee shall not increase by more than S~Io of the previous year's Annual oplugi~ support and Maintenance Agreement Support and Maintenance Fee. All requests by the Customer far addittanal features or functionality that fa11 outside of Company's ongoing policy of upgrading the ot~ware will be quoted separately. Date Payments, All invoices will be sent at least thirty ~3D}days prior to their due date. Payments received forty five ~4}days after their due date will be assessed ~. ten ~l0}percent late fee 9. Taxes. In addition to other amounts payable under this Support Agreement, Custarner shall pay any and all federal, state, municipal, or other taxes, duties, fees, or withholding currently or subsequently imposed an Customer's use of the Software ar the payment of the license Fee to Carnpany, other than taxes assessed against Company"s net income. Such taxes, duties, fees w~thhalding, or ether charges shall be paid by Customer or Customer shall provide the appropriate authority with evidence of exemption franc such tax, duty fee, v~ithhalding, or charge. If Company is required to pay any such tax, duty, fee, ar charge, or to withhold any amount from monies due to Company from Custa~.er pursuant to this Support Agreement, Customer shall promptly reimburse Ca~npany any such amounts la. ~n Site support, The Customer shall reimburse Company at the rate of 1,O~.aa per day for any On-Site uppart incurred at the Customer's direct written request and authorization, This rate shall prevail regardless of the number of Company support personnel dispatched to the Customer's site, and shall be paid far each day that Company personnel are required to be on the Customer's site. Customer will not pay far Company personnel travel time or travel expenses. In response to written Customer requests for Company to provide an-site routine nvn-emergency support, Company shall produce a written estimate of the time required to provide the requested support and state any requirements, such as the presence of Customer staff ar other resources or materials, Any ~n-Site uppart provided by Company shall only be invoiced by Company or paid by Customer if the problem arose due to something other than a defect in the Product. Customer's Db~igation 11. The Custvrr~er Agrees ta: ~a} furnish descriptions of Prablem~s} in the farm reasonably requested by Company Support representatives, } assist Company's efforts to reproduce the Problem in the applicable operating environment, and ~c} make available qualified, trained staff on-site to carry out Company's instructions andlar provide remote access to systern~s~ as requested by Can~pany~ 1 ~. The Customer shall designate its Support Contacts} to provide routine end user support far the Cutorrzer personnel concerning the Product. 13. The Customer shall take appropriate steps to educate its end users about the need to contact the Support Contact Prather than Company directly} when support is needed. The Customer sha11 appropriately publicize the name, telephone number, andlor fax number and~or electronic mail address if applicable, of the Support Contact, Cop~ogtc uppo~t and Maintenance Agreement 14. Access tQ Data and system. The uston~er agrees to provide Company with data dumps, as re uested ren~ate access to the oware system, and with sufficient test time on the Custorrier's cony utr s stun to du llcate the problerrl, to certify that the problem is with the software, and to p ~ p certify that the problem has been corrected. ~ ~. The Customer shall install and maintain far the term of this Support Agreement, a reasonable and atisfacto method of direct remote earnputer access to the Software. The Customer shah pay for the installation and maintenance of such access. Company shall use this access service in connection with error correction, software updating and user support only, and only upon prior written or email native to the uston~er, and Customer's acknowledgment of that notice. 1 ~. The Customer must u grade the of (ware in its entirety to the most recent version within seven p business da s of the release of any updates or mod~ficatians of the Software unless otherwise ' ~ • . n~utuall a eed. Company will not be obligated to provide support for release versions that are y . mare than two release versions older than the current version unless specified In this support cement. Cam any agrees that all release versions will be tested far installation in a computer ~ p environment substantiall similar to the Customer's and that all releases will be free of material defects that would affect the orderly continuation of Custarrxer's use of the Product. 17. The Custarner a ees that, sub' ect to and in accordance with the Custan~er's internal policies and ~' ~ 'dellnes, It will u ode the computer operating soffware, hardware and underlying database g p en Ines of the Desk officer Online Reporting System software as necessary to meet the changing g re uirements of the Software as specif ted by Company as part of a current release of the Software, ar as the artier mutuall a ee. The Customer agrees that, suh~ect to and in accordance with the p ~, . . uston~er's internal policies and guidelines, it will maintain appropriate licenses for the computer o eratin sa#$ware and underl in database engines required of the Desk Off leer Online Reporting p g yg stem a necess .The parties agree that ~oinpany is not obligated to ensure that its new ~' ~ .. . release of the affware is compatible with outdated exceeding 4 years franc date of initial release} hardware, cainputer operating software or database engines. o~fi~entiality 1 S. Confidential Information. a The artier hereb acknowledge that they may have access to information that is canfential ~} p y to one another "Confidential Information"~. "anfidential Information" includes, but is not ~ . limited ta, the licensed products and enhancements, all related source and object codes, Documentation, customer and prospect lists, pricing proposals, financial and other business information, all data and information relating to customer's operation, and any other information designated as canf~ldential or proprietary information by the disclosing party. "anfidential Infarrnatian" shall not include any information which ~i~ becomes part of the ublic domain throe na act or oinissian of the other party; iii} is lawfully acquired by the p ~ ... other art from a third party who is not In breach of an obligation of confidentlal~ty; ~ili}was p Y . in the other party's lawful possession pnor to disclosure of such information; ~~v} is rode ndentl developed by the party without the benefit ar use of the confidential Y . Information• or v i r ulred to be disclosed under a court artier ar a valid subpoena, provided Cap~ag~c uppor~ and Maintenance Agreement 4 that the recipient of the Confidential Information prarnptly n~tif ins the di~alo~in party in order for the disclosing party to have an opportunity to seek an appropriate protective order. The parties agree to maintain the confidentiality of the Confidential ~nforatian and to protect as a trade secret any portion of the other party' Can~idential Information by preventing any unauthorised copying, use, distribution, installation or transfer of possession of such information each party agrees to maintain at least the same procedures regarding the other party's Confidential ~rtformatlon that 1t maintains with respect to its own Confidential Infarn~ation, {~} Company acknowledges that the Customer is a governmental agency and rna~ be required to disclose curtain information under requests made according to provisions of the Public Records Act. Customer sha11 give notice to Company of any request for the disclosure of any rn.forrnat~an het apart and narked "canf ldent~~l~" "proprietary" or "trade secret" ~~ Company. Can~pany shall then have five {5} days from the date it receives such notice to enter into an agreement with Customer providing for the defense of, and complete indennnificatianond reimbursement for all costs {including plaintiff s attorney's fees} incurred by Customer in any legal action to compel the disclosure of such information under the Public Records Act. Can~pany shall have the sole responsibility for the defense of the actual proprietary or trade secret designation of such information. The parties understand and agree that any failure by Company to respond to the notice provided by Custorrier andlor to enter into an agreement with Customer, a set forth above, shall constitute a complete waiver by Company of any nondisclosure or confidentiality rights hereunder with respect to such ii~fornatian, and such information shall be disclosed by Customer pursuant to applicable procedures required by the Public Records Act {c} Both parties acknowledge that any use ar disclosure of the other party's Confidential Information in a manner inconsistent v~rith the provisions of this Agreement may cause the non- disclosingparty irreparable damage for which remedies other than injunctive reliefmay be inadequate, and bath parties agree that the non~disclosing party shall be entitled to receive from a court of competent jurisdiction injunctive or other equitable reliefto restrain such use or disclosure, The terms and provisions of this section shall survive any tern~tnation of this support Agreement, Te~'minatlDl~. I ~, The ustviner may terminate this Agreement at any time and for any reason upon thirty {~~~ days prior notice to Company. In the event of a material default by the Customer under this agreement, Corrtpany may terminate this Agreement upon thirty {30 days prior notice to Customer, provided that customer has been given thirty {~~} days notice to cure the default. Coplogic Support and Maintenance Agreement ~imitatio~ of Liab~li~y ~~. To the extent permitted by law, neither party' liability to the other party in connection with any cause of action, costs ar damages relating to this support agreement shall not exceed the annual fee paid in the twelve month period preceding the event giving rise to the claim. Notwithstanding the foregoing, for purposes of the services performed by on~pany under this Support Agreement, ~otnpany agrees to fully defend, indemnify and hold harmless customer, its officers, employees and agents from any damage, lass, liability, costs including reasonable attorneys fees}, claim or cause of action arising out of injury, loss or damage to real property or tangible personal property, or arising from personal injury or death, where such damage, loss, liability, costs, claim or cause of action i caused or incurred in whole or in part as a result of any negligent or wrongful act or omission or willful misconduct of on~pany, its officers, en~playees, agents, contractors and assigns. company's obligation hereunder is contingent upon uston~er providing ornpany prampt written notice of any such claim, action, lawsuit or other proceeding and ustonaer shall fully cooperate with company in the defense and all related settlement negotiations. The existence of any insurance policies ar coverage's shall not affect the parties' rights and obligations hereunder. enera~ ~ l . This Agreement shall be binding upon the successors and assigns of both parties, provided, however that no assignment, delega#ian ar other transfer shall be made by ornpany without the prior written approval of the ustamer, which approval shall not be unreasonably withheld. ~. ~Io mod1fcation or amendment of this agreement will be valid or b~ndtng unless reduced to writing and duly executed by the party or parties to be bound. ~~. Each party shall be excused frarn delays in performing or from its failure to perform hereunder to the extent that such delays or failures result from causes beyond the reasonable control of such party, provided that, in order to be excused from delay or failure to perfQrn~, such party must act diligently to remedy the cause or effect of such delay or failure to the extent the party is able. ~n the event of such delays, the timetables shall be extended by a~s many calendar days as the delay caused by forces outside the reasonable control of the parties. 24. This Support Agreement maybe executed in separate counterparts, each of which so executed and delivered shall constitute an original, but all such counterparts shall together constitute one and the same instrument. Any such counterpart may comprise one or more duplicates or duplicate signature pages any of which may be executed by less than all of the parties provided that each pax executes at least one such duplicate or duplicate signature page. The parties stipulate that a photocopy of an executed anginal will be admissible in evidence for ail purposes in any proceeding as between the parties. ~. Any provision of this Support Agreement or part thereof found to be illegal or unenforceable shall be deemed severed, and the balance of the Agreement shall remain in full force and effect. oplagic su~po~t and N~ain~enance Agreement ~~. This uppOt't Agreement ~~ ~~ go~e~"ned ~I1d Construed In a~eordance i~lth t~1 ~~ ~f t~l~ tats of Texas. Venue of ~~ aCtien brought with regard to this uppor~ Agreerr~ent shall be in Nueces bounty, TCxas~ The undersigned represent end warrant that they are authQri~e~ a reresentatiVes of the party on whose behalf they are signing to sign this Agreerr~ent and to bind their respective party thereto. ~plogic, inc. Bar Randy Burlamme~, it~eF Vice President ~~~ ~~# ~~ visa ~~~is r ~ss~stant A#tor~ey Foy qty A~orney op~ogic Support and N[a~nter~an~~ Agreement 7 its ~f ous h~isln A ~Vlunicipal ~~r~oration o~npany Hours of support and N~intenance er~ice are as follows: regular Hours of service pacific timed Aber Hours service pacific time a9~a to ~ 70a hours 17aa hours to a9aa hours or~day to Friday Monday to Friday -excluding Saturdays Sundays Holidays observed b~ the U~. Federal • t~ol~days Govt. e-mail received by: company staff at a-mail received by: ampany staff at su~port~coploic,com support~caplogic.cam I~ci~e~tJRe pest far ervlce Priam All support aid n~a~ntenance incldentsl requests for service Ali be prlor~t1zed on the fo~long ba~s~ ~rl~rlty Defin~t~on work is stopped to the po~r~t that critical business activities cannot continue. e.g. Lass afuse afn~ajar features, fle system corruption, data ions} security issue, system outage, ~ Are issues ar features of the product preventing normal operations. Non-critical features, far v~hich canveient or reasonable work around exists, or a feature which functions unexpectedly. Slight lncanvenlence. response T~n1e The follovvin~ table outlines the resuanse times far each nriarity. Pr~arlr response Tle During regular hours of service response Time During After Hours of Service A hours ~ hours from time of notifying the vendor contct~s~ through v01C~ n~a11 ar ~-mail $ 2} business da s of Dmpany receipt of verba~i, 1Vot available Capioic uppa~t and hrlaintenance Agreem~n~ wrltt~r~ or electronic notl~e thereof and to Correct the Priority Issue by the Customer' ~ reasonably requested date. If the Priority ~ Issue is riot corrected within ~ business days of the Original not~~lCatl~n Company will provide the Customer with reports of its efforts to correct the Priority B Issue as requested b Customer. As tl~ne perrrilts hosts or inclusion ~~ the next ~Dt available scheduled u date to the Licensed Product. 1. ~neientlRe~ucst for Service Reporti~~ Procedure All problems, queries or requests far assistance must be made to Company at support acoplaic.coin, during regular business hours of service. Customer must be prepared to leave a contact name, phone number, workstations affected, sreenshots, a description of the problemiservice and the impact. Con~panys' resources will work with the Customer to diagnose the problem. Aber investigating the l~~ue, Company and the Customer will jointly categorise the problem into hype of Problem ownership Customer Server Hardware Problem Customer Desktop Hardware Problem Customer Customer ~etwark Con~un_icatian Customer isolated warl~station Issue Customer Customer Database Customer Perfarmancelstarage Application or software related Company Company will deal with prablernlincident according to the priority assigned. In the case that a problem cannot be readily resolved, Company will attempt to identify a work around. As soon as Company corrects an Issue, Company shall notify the Cutorr~er that the issue has been corrected by sending electronic irlall. Coplogi~ ~uppar~ and Nfaintenance Agreement 9 -7~~ V ~~ fijx7f ~~~lo~C ~es~ iffier ~nllne Re~]~1n stem ~erslon .9. Base Annul Support and N~aintenance F`ee: 4,50 On-site Support: ~ ~~ peg day ~ine~ude travel time and expenses} ~np~ogic support and Maint~r~an~e Agmeetnen~ ~~