HomeMy WebLinkAboutC2008-384 - 10/21/2008 - ApprovedSYSTEM SUPPORT AGREEMENT (SSA)
This Agreement made and entered into by and between METTLER-TOLEDO, INC. and:
City of Corpus Christi
Solid Waste Service
P.O. Box 9277
Corpus Christi, TX 98415
hereinafter referred to as "Customer".
Customer hereby orders and METTLER-TOLEDO, INC., hereinafter referred to as Mettler Toledo, hereby
agrees to provide Support Services set forth in the accompanying SYSTEM SUPPORT AGREEMENT
TERMS AND CONDITIONS for the following Licensed Software and Hardware Product(s):
Description of Svstem
Location: Cefe F, Valenzaela Landfill, Corpus Christi, TX 78343
S sv tem: AutoScale® with unattended module, 5 seat license & 4 UATAs, 4 Video Text Inserters
Customization for "fees" and "credit cards".
Location: Central Management Reporting System (CMRS), office system
S sv tem: CMRS, 10 seat licenses, CMRS Accounting Interface, A/R and Real-Time Processing
Location: Elliott Landfill
S stem: AutoScale® attended module, 3 seat user license
Customer and Mettler Toledo further agree that the fee for these Support Services for the specific
duration of the Agreement will be:
$ 16,561.67 09/19/08 - 09/18/09
$ 16,892.90 09/19/09 - 09/18/10
$ 17,230.78 09/19/10 - 09/18/11
$ 17,575.38 09/19/11 - 09/18/12
$ 17,926.89 09/19/12 - 09/18/13
_X_ Standard Support consists of.'
Telephone Support:
8 AM to 5 PM Site Local Time
After hours, $100/hr - 2 hr minimum
Hardware On Site Support, Level 1:
8 AM to 5 PM, provided
After hours, $200/hr
Software On Site Support, Level 1:
8 AM to 5 PM, provided
After hours, $200/hr
Hardware On Site Support Level 2:
8 AM to 5 PM, $1,950/day
(includes expenses)
After hrs/week ends: $2,400/day
(includes expenses)
2008-384
10/21/08
M2008-271
24/7 Support consists of
24 hrs/7 days a week
(excluding Holidays)
24 hrs/7 days a week
(excluding Holidays)
24 hrs/ 7 days a week
$200/hr
$1, 950/day,
(includes expenses)
$2,400/day
(includes expenses)
-1-
Mettler-Toledo
Software On Site Support Level 2:
8 AM to 5 PM, $1,950/day
(includes expenses)
After hrs/week ends $2,400
(includes expenses)
Hardware Replacement Parts:
Included
Software UDdates:
Included
End UserTraining:
One time per year upon request
(Available via Web-ex, or site visit if possible)
$1,950/day
(includes expenses)
$2,400/day
(includes expenses)
Included
Included
One time per year, upon request
(Available via Web-ex, or site visit if possible)
Customer and Mettler Toledo further agree that the Commencement Date for the Support Services of this
agreement will be:
09/19/2008
SYSTEM SUPPORT AGREEMENT
TERMS AND CONDITIONS
Mettler Toledo by its acceptance of this Agreement, agrees to provide and Customer agrees to accept,
both on the basis of the terms and conditions contained in this Agreement, the maintenance services set
forth below.
1. TERM
1.1 Term of Agreement. The term of this Agreement shall commence on the "Commencement Date"
indicated above.
1.2 This agreement shall continue in effect for a period of five years at the stated rate.
1.3 Within 90 days prior to expiration both parties will have the option to terminate or renew this
contract for another term of 5 years. The pricing of the renewal option will not exceed an annual
increase of more than 3%.
2. SCOPE
2.1 In consideration of payment, by the Customer to Mettler Toledo, of a Support Fee, Mettler
Toledo hereby agrees to provide support (the "Support"), during the term of this Agreement for
the system (as specified simultaneously here within) provided below.
2.2 With respect to the System Software, the Support shall consist of:
(i) Telephone support to:
(a) clarify installation and operating instructions contained in the documentation
distributed with the software, and,
(b) assist in the identification of operational problems experienced by the Customer;
(ii) Periodic software and documentation updates as used herein shall consist of (fixes 8
patches) and will be included under this Agreement. Software "updates" are considered
updated releases to the Customer's original or current version of software. Not covered
under this Agreement, software upgrades to subsequently released versions of the
software. Upgrades, as used herein shall consist of new functionality or the enabling of
new functionality through the purchase of additional modules. Upgrades will be quoted
and invoiced separately from this Agreement.
(iii) Program problem diagnosis and program error correction;
(iv) Repair of data files necessitated by a verified program error in the Software;
(v) Ongoing User and/or Administrator Training, via one scheduled training session per
year, if requested, at a mutual convenient time.
Revision 7.6.5 _2 _
2.3 With respect to the System Hardware and Software, Support shall consist of
(i) Level 1, on site Support
(ii) Level 2, on site Support
(iii) Billable Maintenance.
2.4 The term "Level 1" Support means the local Mettler Toledo or Mettler Toledo Distributor field
technician will trouble shoot software or replace parts for the equipment listed on the attached
SSA when notified by Customer that the Hardware is inoperative.
2.5 The term "Level 2" Support means a certified engineer, trained specifically to trouble shoot the
Software and replace parts for the equipment listed on the attached SSA. Travel expenses
included with Level 2 Support are defined as transportation, auto rental, tolls, parking, meals,
lodging and other out-of-pocket costs.
2.6 The term "Billable Maintenance" as used herein means any support or maintenance, agreed to
by Mettler Toledo, other than Level 1 or Level 2, pertormed by Mettler Toledo and includes, but
is not limited to, the following types of maintenance:
(i) Work requested by Customer for rearrangement, such as additional wiring, moving
other equipment or cables, relocating the Hardware or repairing a previously prepared
site or station to make it operational;
(ii) Electrical work external to the Hardware;
(iii) Refinishing of the Hardware;
(iv) Adding or removing accessories, attachments or other devices.
(v) Work on the Hardware caused by maintenance or repair pertormed by other than
authorized Mettler Toledo personnel or resulting from improper operation by Customer
personnel; and
(vi) Specific requests by Customer for maintenance services.
3. PARTS/ENGINEERING CHANGES
3.1 Hardware Support shall include replacement of unserviceable parts, except for supplies or
expendable parts such as, but not limited to, ink rollers, ribbon cartridges, printer paper and
any data storage media. In the case of Billable Maintenance, replacement of unserviceable
parts shall be made at Mettler Toledo's current replacement part prices at the time of
replacement.
3.2 Engineering changes, as determined by Mettler Toledo, will be controlled and installed by
Mettler Toledo.
4. SOFTWARE OR HARDWARE MODIFICATION
If any change, alteration, or other modification of any kind is made to the System, without Mettler
Toledo's prior written consent, Mettler Toledo shall be relieved of its obligation hereunder and of
any obligations to warrant or support the System.
In the event that Mettler Toledo chooses to be relieved of their obligation, as noted above, the
customer will have no future renewal and payment obligations under this contract.
5. EXCLUSIONS
3.1 The services described in this Section are not considered a part of the Support to be
provided hereunder. However, these services, if available, will be provided by Mettler
Toledo under this Agreement at Mettler Toledo's then applicable rates and minimum
charges, parts and material prices and travel expense:
(i) Maintenance of accessories, attachments, supplies, machines or other devices that
are not Hardware items;
(ii) Repair of damage not caused by Mettler Toledo, including without limitation, damage
resulting from accident, transportation, neglect or misuse, lightning, failure or
fluctuation of electrical power, air conditioning or humidity control, telephone
Revision 7.6.5 - 3 -
equipment or communication lines failure, failure of foreign interconnect equipment,
use of external materials, such as tickets, printer paper and data storage media
which do not adhere to Mettler Toledo specifications, or causes other than ordinary
use.
(iii) System configuration and implementation;
(iv) Operator Training, beyond definitions in Item 2, SCOPE;
(v) Modifications and/or Enhancements other than those distributed as a part of a
periodic Software update;
(vi) Support of Software products other than the software described in this Agreement.
(vii) Specification changes;
(viii) Service which is impractical for Mettler Toledo to render because of alterations in the
Hardware by mechanical or electrical means to another machine or device, other
than a machine or device previously approved in writing by Mettler Toledo; or the
physical inaccessibility of the Hardware;
(ix) Any services in respect of software programming or any repair of any damage to the
Hardware caused by software programming not provided by Mettler Toledo; and;
(x) ~ Reconditioning required when repair and parts replacement cannot keep equipment
in operating condition.
6. CHARGES AND PAYMENTS
8.1 Customer will be invoiced on or before the Commencement Date of this Agreement detailing all
related charges.
8.2 Customer shall pay for charges in connection with the chosen Support Plan (Standard Support or
24/7 Support).
8.3 All Support charges are subject to increase or decrease upon any change in the specifications for,
or upon addition of features to the Software.
8.4 All charges for shipments to or from Mettler Toledo are responsibility of Customer.
7. SUPPORT HOURS
7.1 Support hours are defined by the type of Support Plan previously chosen.
8. CUSTOMER'S RESPONSIBILITIES
8.1 Customer shall not attempt to maintain or repair the Software or Mettler Toledo Hardware except
as expressly specified and approved in writing by Mettler Toledo.
8.2 Customer shall follow accepted operating practices, including, but not necessarily limited to:
(i) routinely backing up data files to an external data media expressly designed for such a
purpose;
(ii) keeping all hardware in good repair and operating as recommended by the manufacturer
thereof;
(iii) ensuring that the Software is operated by qualified, adequately trained personnel.
8.3 Customers shall maintain site environment conditions as specified in the Mettler Toledo
System Sales Proposal and/or Project Management documentation provided to customer.
8.4 Customers shall provide adequate working space, heat, light, ventilation, and necessary access to
the site in order that Mettler Toledo's maintenance responsibilities hereunder can be
completed.
8.5 Customer shall be responsible for the following:
(i) Keep area around equipment free from any materials obstructing air flow:
(ii) Keep area free from excessive dirt and lint;
(iii) Assure and maintain proper A.C. electrical grounding as specified by manufacturer with
prompt correction of any faults;
(iv) Minimize static electric buildup in carpeted areas with properly grounded static mats,
antistatic carpet spray as frequently as necessary, humidifier, or other means available to
Customer;
Revision 7.6.5 - 4 -
(v) Provide A.C. outlets/circuits marked for computer or peripheral use only, and assure that any
other electrical device such as motor driven andlor heating appliances and fluorescent and/or
blinking lights are not plugged into the same outleUcircuit.
(vi) Maintain inside ambient air temperatures and humidity in the area and around which the
equipment is installed as indicated by the manufacturer. Specific recommendation: Temperature
50o F to 80oF maximum; Humidity 20% to 80% with no condensation; and
(vii) All supplies to ensure normal operation of the equipment including, but not limited to,
ribbons, paper, recording media, operator replaceable print bands, thimbles, daisy wheels and
interconnect cables.
9. SUPPORT SERVICES WARRANTY
9.1 Mettler Toledo hereby warrants and covenants that the services to be performed under this
Agreement will be performed in a good workmanlike manner by qualified personnel. Except
for the immediately preceding sentence, Mettler Toledo makes no warranty of any kind,
express or implied, including without limitation, any warranty of merchantability or fitness for
a particular purpose with respect to the subject matter hereof, maintenance to be performed
by Mettler Toledo pursuant to the terms hereof, or parts to be supplied hereunder.
9.2 THE LIABILITY OF METTLER TOLEDO UNDER THIS WARRANTY IS LIMITED TO, AT
METTLER TOLEDO'S OPTION, EITHER THE REPAIR OR THE REPLACEMENT OF THE
DEFECTIVE ITEM OR PART.
10. LIMITATION OF LIABILITY
10.1 THE WARRANTIES CONTAINED HEREIN ARE IN LIEU OF ALL OTHER WARRANTIES
EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED
WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE.
In no event shall Mettler Toledo be liable for any damages caused by a delay in furnishing
Maintenance services hereunder or for any speculative, punitive, incidental or
consequential damages, including but not limited to lost profits or downtime, in connection
with or arising out of this Agreement, and the maximum liability to Mettler Toledo in any
event shall not exceed, in the aggregate, the total amount of the charges due hereunder for
the term then in effect.
17. ASSIGNMENT
11.1 Customer may, by providing Mettler Toledo with thirty (30) days prior written notice, assign
all of its rights and responsibilities under this Agreement to a subsidiary corporation within
the continental United States and to no other; which corporation shall agree to be bound by
all the terms and conditions hereof. No such assignment will release Customer from its
obligations hereunder.
11.2 Mettler Toledo may assign, on notice to Customer but without Customer's consent, any or
all of its rights, duties, and obligations under this Agreement to any third party, or may
subcontract with any third party for the pertormance of its obligations hereunder.
12. TAXES
Mettler Toledo shall be responsible for all taxes related to employment, payroll, or similar
taxes which may be applicable to any person who may act on behalf of Mettler Toledo in
providing the Support Services under this Agreement. Customer shall be responsible for
taxes, levies, and other similar charges applicable to the Support Services received by
Customer pursuant to this Agreement, other than (i) any U.S. local, state, and federal
income and any foreign income, withholding, or similar tax imposed upon or measured by
the income of Mettler Toledo; and (ii) any U.S. local, state, and federal franchise or similar
tax and any foreign franchise or similar tax imposed upon Mettler Toledo for the right to do
business in a particularjurisdiction.
Revision 7.6.5 - 5 -
13. GENERAL
13.1 Mettler Toledo shall not be liable or in default under this Agreement, and Customer shall
have no right, in respect of any delay in delivery or failure to deliver the System or any
component or device used in connection therewith, or of the non-performance or delay in
performance of any term or condition of this Agreement directly or indirectly resulting from
electrical failure, civil or military authority, civil disturbance, labor disputes, strikes, lockouts,
riots, epidemics, war, governmental regulations, fire, power failure, acts of God, or any
other causes beyond Mettler Toledo's control, whether similar or dissimilar to the foregoing.
13.2 In the event of any such delay or failure, Mettler Toledo shall promptly notify customer
orally, to be confirmed in writing, thereof and shall promptly resume performance in
accordance with this Agreement when the preventing cause has been removed.
13.3 Nothing herein shall require Mettler Toledo to settle any commercial dispute, strike or labor
dispute on terms which are not otherwise agreeable to Mettler Toledo.
13.4 The terms, provisions, representations and warranties contained in this Agreement shall
survive the completion or termination hereof.
13.5 If either party materially defaults, except for a failure to pay monies when due hereunder,
and fails to cure or substantially begin to cure such default within fifteen (15) days from the
date of notification of such default by the non-defaulting party, the non-defaulting party shall
have the right at any time thereafter, but not subsequent to the defaulting party's effecting a
complete cure, to terminate this Agreement.
73.8 In the event that a default occurs and the non-defaulting party seeks redress in a court of
law, the defaulting party agrees to pay reasonable attorneys' fees to the non-defaulting
party if ordered to do so by judicial order.
13.7 Each party has full power and authority to enter into and perform this Agreement, and the
person signing this Agreement on behalf of each has been properly authorized and
empowered to enter into this Agreement.
13.8 This Agreement shall be governed by and construed in accordance with the laws of the
State of Texas, except a provision of that law which would refer the involved issue to
another jurisdiction far resolution.
13.9 All notices which either party hereto is required or may desire to give the other party
hereunder shall be deemed given upon receipt thereof when in writing sent by Certified or
Registered Mail, return receipt requested, postage prepaid, or by Telegram or Telex, or by
hand delivery with receipt acknowledged and addressed to the addressed to the address of
Mettler Toledo set forth below and to Customer to the address set forth on the first page of
this Agreement or such other address as either party may specify from time to time by
written notice delivered in accordance herewith.
To: METTLER TOLEDO City of Corpus Christi
1900 Polaris Parkway Solid Waste Services
Columbus, OH 43240 P.O. Box 9277
(888)740-5858 Office Corpus Christi, TX 78469
(614)985-5353 Fax (361)826-1971 Office
(361)826-1971 Fax
13.10 No omission or delay by either party hereto at any time to enforce any right or remedy
reserved to it, or to require performance of any of the terms, covenants or provisions
hereof by the other party at any time designated, shall be a waiver of any such right or
remedy to which such party is entitled, nor shall it in any way affect the right of either party
to enforce such provisions thereafter.
13.11 No change or attempted waiver of any provision of this Agreement shall be binding, unless
expressed in writing and signed by the party against whom the same is sought to be
enforced.
Revision 7.6.5 - 6 -
13.12 In the event any one or more of the provisions of this Agreement shall for any reason be
held invalid, illegal or unenforceable, the application of such provision or portion thereof to
other entities, persons or circumstances or other jurisdictions, and the remaining
provisions of this Agreement shall not be affected thereby but shall remain in full force and
effect and the invalid, illegal or unenforceable provision shall be replaced by a mutually
acceptable valid, legal and enforceable provision, which comes closest to the intention of
the parties underlying the invalid, or unenforceable provision.
13.13 Headings used in this Agreement are for reference purposes only and shall not be
deemed a part of this Agreement.
13.14 This Agreement constitutes the entire agreement between the parties hereto and
supersedes all previous negotiations, commitments and writings, including but not limited
to, any proposal or sales brochures delivered in connection with the services to be
provided hereunder.
CUSTOMER HEREBY ACKNOWLEDGES THAT IT HAS READ THIS AGREEMENT, UNDERSTANDS
IT AND AGREES TO BE BOUND BY ITS TERMS AND CONDITIONS. FURTHER, CUSTOMER
AGREES THAT THIS AGREEMENT IS THE COMPLETE AND EXCLUSIVE STATEMENT OF THE
AGREEMENT BETWEEN THE PARTIES, SUPERSEDING ALL PROPOSALS OR PRIOR
AGREEMENTS, ORAL OR WRITTEN, AND ALL OTHER COMMUNICATIONS BETWEEN THE
PARTIES RELATING TO THE SUBJECT MATTER OF THIS AGREEMENT.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed in duplicate as
of the date and year executed by both parties, or the latter thereof if different.
ACCEPTED BY:
METTLER-T EDO, INC.
By:
Title 11 ~~
Date:NtXl'~./YL~~fZ/~7~ ~~
~ "~""~--a~.~.L. AUl'MOf~IZfp
rrr ccuncti. _ /~ ~/ Og
secRertav~ie.
City of Coypus Christi, TX
By: Lc~
Title 1n~-nrtrvt l~t`1t/i IPh
Date: ~ Q I ~ j ~ ~~
foITn: J~Gf.LX~I~O
Asei~Yant City Attorney
For City Attomey
ATTEST. ~'
ARMAN~O CHAPA
Cfty SECAETM"
Revision 7.6.5 - 7 -