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HomeMy WebLinkAbout2000-181 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 RESOLUTION NO. 2000-181 .' RESOLUTION OF THE CITY OF SAN BERNARDINO APPROVING THE PURCHASE OF A MAINTENANCE CONTRACT FOR THE CITY'S DOCUMENT IMAGING SYSTEM FROM DATAMAX TECHNOLOGIES OF CULVER CITY, CALIFORNIA. BE IT RESOLVED: SECTION I. That Datamax is a sole source for the City's document imaging system maintenance (hardware and software), for the City's Police, City Clerk, and Finance departments. This maintenance contract will be valid for 3 years. The City has the right to cancel the contract, annually, with 30 days advance written notice, prior to the next renewal period. The contract provides a fixed price of $68,214.00 annually for the three-year period that will not change. Future year renewal options shall be contingent upon funds being approved in the City's budget for this service. SECTION 2. That the Mayor and Common Council authorize the Purchasing Manager to issue a purchase order for $68,214.00 for Citywide document imaging system maintenance services. III III III III III III III III III III III 2000-181 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 :. RESOLUTION OF THE CITY OF SAN BERNARDINO APPROVING THE PURCHASE OF A MAINTENANCE CONTRACT FOR THE CITY'S DOCUMENT IMAGING SYSTEM FROM DATAMAX TECHNOLOGIES OF CULVER CITY, CALIFORNIA. I HEREBY CERTIFY that the foregoing resolution was duly adopted by the Mayor and Common Council of the City of San Bernardino at a'oint Regular meeting thereof, held on the 19t~ay of June, 2000, by the following vote, to wit: Council Members ESTRADA LIEN McGINNIS SCHNETZ SUAREZ ANDERSON McCAMMACK Aves Navs x x x x x x - X Abstain Absent ~h~ Racll G. Clark, City Clerk The foregoing resolution is hereby approved this 23 day of C)v~ 2000. ,~~ Esther Estrada Mayor Pro Tern Approved as to form and legal content: James F. Penman, City Attorney By: Jk",_7 (;(z~ (J 2000-181 .. Purchase, License and Service Agreement This Purchase, Lioonse and Servioo Agreement is made and entered into by and between Datamax Technologies, Inc. ('Datamax'), located at 6101 W.Centinela Ave., Culver City, CA, 90230 and - (hereinafter 'Customer') located at: Datamax and Customer hereby agree as follows: This 'Agreement" consists of this signature page, the General Terms and Conditions, those Attachments listed below which are designated by Customers initials (Ihe 'Attachments"), all Schedules referenoed and all attachments, All references to 'Agreement' shall include this cover page, the General Terms and Conditions and all such Attachments and Schedules. All future orders from Customer to Datamax shall be govemed by the terms and conditions referenoed herein and shall become effeclive upon acooptance by an authorized Datamax employee. Attachments Custome(s Initials . Standard Software Lioonse Attachment (together with Schedule A) . Software Support Attachment (together with Schedule A ) . Professional Services Attachment (together with Statement of Work) . Hardware Purchase Attachment (together with Schedule A) . Hardware Maintenance Attachment (together with Schedule A) . Olher: This Agreement constitutes the enlire agreement between the parties on the subjecl hereof and supersedes all prior or contemporaneous agreements, negotiations, representations and proposals, written or oral. This Agreement does not operate as an acooptance of any conflicting terms and conditions and shall prevail over any conflicting provision of any purchase order or any other instrument of Customer, it being understooc that any purchase order issued by Customer shall be for Customer's convenienoo only, Acknowledgment of a Customers Purchase Order by Datamax shall not constitute acooptanoo of any such additional or different terms and conditions. This Agreement may only be awarded, modified, supplemented, or deviated from by a writing executed by an authorized Datamax employee and Customer. By executing this Agreement, Customer acknowledges that it has reviewed the terms and conditions incorporated into this Agreement and agrees to be legally bound by the same. Datamax TechnOIOgieS~ ~ By ~/V ~ (Type or print name): /~ 7W~ ~A:.ecut4v.~ c/. p- " Title: Date: of:, So, '2.040 Date: ~v.rt 3,0 7 ccO , '. 2000-181 General Terms and Conditions 1. General. These General Terms and Conditions are intended to provide for terms that are common to the Standard Software Lioonse Attachment, the Software Support Attachment, the Professional Servioos Attachment, the Hardware Purchase Attachment, the Hardware Maintenanoo Attachment, and any other attachments and schedules which incorporate these terms and conditions. Accordingly, in the case of any conftict between the General Terms and Conditions and any other Attachment or Schedule, the General Terms and Conditions shall control and govem, unless otherwise expressly stated to the contrary. 2. LIMITATIONS OF LIABILITY. Exoopt as expressly provided in any warranty contained in the Attachments or as expressly provided by law, Datamax shall not be liable for any loss or damage claimed to have resulted from the use, operation or pertormanoo of the Software, the Hardware, the Support Servioos, the Services (described in the Professional Servioos Attachment), the Maintenanoo Servioos, and any other products, services and software provided in this Agreement (collectively, the "Products"), regardless of the form of action. In no event shall Oatamax be liable to Customer for (a) any special, indirect, incidental or consequential damages, even if Datamax has been advised of the possibility thereof, (b) any damages resulting from latent defecls, loss of data or profits, or (c) any claim whether in contract or tort, that arose more than one year prior to institution of suit thereon, or (d) any actual damages (except damages resulting from gross negligenoo or intentional misconduct) in excess of the Product prices and license fees paid hereunder. Customer agrees that no representation, warranty, promise or agreement of any Oatamax representative shall be binding on Oatamax unless it is expressly included in this Agreement or the appropriate Attachment. 3. Overdue Accounts. Interest may be charged on overdue accounts and any other fees and expenses not paid as provided hereunder at the rate of ONE ANO ONE-HALF PERCENT (1-%%) per month or the maximum amount allowed by law, whichever is less, commencing with the date payment was due. 4. Export. Customer agrees that the Products purchased hereunder will not be exported direclly or indireclly, separately or as part of any system, without flrst obtaining a Iioonse from the U.S. Department of Commerce or any other appropriate agency of the U,S, Govemment, as required. 5. Termination. Notwithstanding any other term or condition of this Agreement or Attachments and Schedules attached hereto, Oatamax shall have the right to terminate this Agreement upon the occurrenoo of any of the following events: (A) Customer fails to pertorm or observe any of its obligations to Datamax under this Agreement, including, but not limited to, the timely payment of any sums due Oatamax, (B) Customer admits in writing its inability to pay its debts generally as they become due, or executes an assignment or similar document for the benefit of creditors, (C) the appointment of a reoeiver, trustee in bankruptcy or similar officer for the equity or assets of Customer, and (D) there is an assignment of this Agreement without the prior written consent of Datamax; and such evenl(s) is not remedied to the reasonable satisfaction of Oatamax within twenty (20) days after Oatamax has sent written notice to Customer, (E) Customer informs Oatamax of its intent not to comply with the terms of this Agreement. Termination shall not be Datamax's exclusive remedy and no such termination shall adversely affect any claim, right or action which Oatamax may have for damages or otherwise against Customer regarding any failure of Customer to pertorm or observe its obligations to Datamax. 6. Customer Responsibilities. Except as otherwise provided on the Attachments, and in addition to any other obligations of Customer provided in this Agreement, Customer shall be solely responsible for the following: . The compatibility of Customers computer hardware, peripherals, devioo drivers, third party operating systems, and other third party software with the Software and the Hardware; . The installation, testing, use and operation of the Software and Hardware; . The maintenance and support of Customers hardware, peripherals, operating systems, third party software, Software, and Hardware; . The results obtained from use and operation of the Software and Hardware, provided, however, nothing contained in this subsection shall affecl the warranty contained in Section 6.A.2 of the Lioonse Attachment; . Providing a safe and suitable location for installation, use, and opperation of the Software and Hardware in accordance with any instructions that may be reasonably specifled by Oatamax: . Providing cabling and all cabling services in preparation for the installation of the Software and Hardware; . Providing and maintaining the appropriate environment for operating the Software and Hardware and maintaining back-up and disaster recovery facilities; and . All data entry and loading of Customer data and maintaining back-up or archival copies thereof. 7. Proprietary Rights. Certain information, product development plans, materials, technical or nontechnical data, formulas, compilations, programs, devioes, melhods, techniques, drawings, prooesses, or portions thereof supplied by Oatamax, including the Software and the documentation thereof, are trade secrets and confldential information of Oatamax or its suppliers and are fumished solely to assist Customer in the installation, operation and use of the Hardware and Software. Trade secrets and confldential information include any information that is of value to Oatamax and is treated as confldential. Customer agrees to hold the trade secrets and confldential information disclosed by Oatamax in strictest confldenoo and not to, directly or indirectly, copy, reproduce, distribute, manufacture, duplicate, reveal, report, publish, disciose, cause to be disclosed, or otherwise transfer the trade secrets and confldential information disclosed by Oatamax to any third party (exoopt those third parties in a confldential relationship to Customer) or utilize the trade secrets and confldential information disclosed by Datamax for any purpose whatsoever other than as expressly contemplated by this Agreement or any Attachment. With regard to trade secrets, this obligation shall continue for so long as such information constitutes a trade secret under applicable law. With regard to confidential information, this obligation shall continue for Ihe term of 2000-181 the applicable Attachment and for a period of five years thereafter. Customer acknowledges that use or disclosure of Datamax's trade secrets or confidential information would cause irreparable harm to Datarnax. The immediate preceding paragraph shall not apply to any such confidential information or document that is in Customers possession prior to receipt from Oatamax, publicly available through no fault of Customer or independently developed by Customer. Customer may disclose to Datamax certain non-public information relating to the Software or certain of Customers ideas. formulae, processes, research, development, third party software or software licenses, discoveries, marketing plans, customer lists and other information relating to any of the foregoing, or may permit Oatamax to inspect Customers facilities (collectively, the "Customer Proprietary Information"). All such disclosures which Customer informs Oatamax are confldential, including any information obtained in conneclion with any inspeclion of Customers facilities, are to be considered as confldential and all such disclosures shall be maintained in confldence by Oatamax unless they become public knowledge through no fault of Oatamax. Oatamax will not disclose to others, use for its own benefit, copy, or make notes of any Customer Proprietary Information, such conduct will constitute a breach of the confldence and trust bestowed on Oatamax by Customer. Oatamax acknowledges and agrees that disclosure or unauthorized use of the Customer Proprietary Information disclosed could cause irreparable harm to Customer. This Section 7 shall servive the termination of the Agreement, these General Terms and Conditions and any Attachment. Customer agrees that during the term of this Agreement and all applicable Attachments, and for one year following the last of such to expire, Customer shall not solicit, induoo to leave or hire any employee of Oatamax, or any individual who had been employed by Datamax within the prior one year. 8. Miscellaneous. . Customer may nol assign any of its rights or obligations hereunder exoopt with Oatamax's prior written consent, and any attempted assignment shall be void; provided, however, Customer may assign its rights under this Agreement to a parent that is a 100% owner of Customer or to a subsidiary that is 100% owned by Customer, so long as such entity agrees in writing to be bound by all of the terms and conditions of this Agreement. . This Agreement shall be binding upon and shall inure to the benefit of the parties hereto and their respective sucoessors and permitted assigns. Oates or times by which Datamax is required to render pertormanoo under this Agreement shall be postponed automatically to the extent that Datamax is prevented from meeting them by any cause beyond its reasonable control. . All rights and remedies of the parties hereto are separate and cumulative. The waiver or failure of either party to exercise in any respect any right or remedy provided herein shall not be deemed a waiver of any further right or remedy hereunder. . This Agreement shall be subjecl to, govemed by, and construed in accordanoo with the laws of Ihe state of Califomia without regard to its rules governing confticts of law. Customer consents and submits to the jurisdiction and venue over any action, suit or other legal proceeding that may arise out of or in connection with this Agreement, to be the Los Angeles County in the State of Califomia. . The invalidity of any provision of this Agreement shall not affect the validity and binding effect of any other provision. . Notioos hereunder shall be sent to the addressees on the faoe of this Agreement, or to such other addresses as specified by a notioo complying herewith, and shall be deemed received on the earlier of actual reooipt or five days after deposit in the U.S. Mail. . Headings contained in this Agreement are for convenience only and are not part of this Agreement and do not in any way interpret, limit or amplity the scope, extent or intent of this Agreement or any of the provisions hereof. . In the event of any dispute over the Agreement, the General Terms and Conditions or any of the Attachments, the prevailing party shall be entititled to reasonable attomeys' tees, costs and expenses. . Datamax shall carry Workmens's Compensation, Employers Liability Insurance and any other insurance which will protecl Oatamax from claims in conneclion with the servioos to be provided hereunder, and Oatamax's obligations under the Agreement and any Attachments: and as otherwise required by applicable laws, ruies, ordinanoes and regulations. Such insuranoo shall be in the form prescribed by and in the amounts required by the state or states where servioos are being pertormed under the Agreement and any Attachments. 2 2000-181 Software Support Attachment This Software Support Attachment (hereinafter "Attachment") between Datamax Technologies, Inc. (hereinafter 'Oatamax") and (hereinafter "Customen is an addendum to the Purchase, Lioonse and Service Agreement between Datamax and Customer dated Customer agrees to the following terms and conditions which are incorporated in and made part of the Purchase, License and Servioo Agreement. 1. Software Support. Oatamax agrees to provide to Customer the servioos described below for the software for which software support services are elecled on Schedule A (fhe Covered Software), in accordance with the following terms and conditions: A. Hours of Service Availability. Payment of the standard Support Fees (as deflned in Seclion 5.A) entitles Customer to Support Servioo (as deflned in 1.B) during the Principal Period of Maintenanoo (PPM). PPM is between the hours of 8:00 a.m. and 6:00 p.m. Paciflc time, Monday through Friday, excluding Oatamax holidays (Oatamax's Normal Business Hours) while this Attachment is in ellecl, All Covered Software elecled in Schedule A or subsequently added by amendment shall have the same PPM. Customer may request, in writing, special extended periods of coverage, subjecl to Oatamax's current policies, terms, conditions, and prioos for such service. B. Scope of Service. Oatamax will provide servioo during the PPM as long as the Covered Software is at the currenl or the next most current revision level and operated in accordance with Oatamax's published speciflcations. Support Servioos are (1) telephone support to help resoive software failures during the PPM; resolution may be delivered as a Software Maintenance Update (SMU), software bug flx module or workarounds; (2) Commercially reasonable efforts to report and test flxes to defects in the Covered Software that materially and adversely affecl the efficiency or use of the Covered Software as described in Oatamax's written speciflcations; software program fixes will be provided for the current release only; and (3) delivery of all software revisions provided by vendor that Datamax deems necessary with respect to the Covered Software; and Oatamax will use its best efforts to render Support Services within a reasonable time. C. Enhancements to Covered Software. Oatamax agrees to deliver to Customer without charge any new versions of the Covered Software that contain only error corrections and minor enhancements. Datamax may also offer to Customer new versions of the Covered Software that contain more than error correclions and minor enhanooments, subject to an additionallioonse fee. Datamax shall have the sole discretion to determine whether an updated or enhanoed version of the Covered Software will be subject to an additionallioonse fee. D. Service Limitations. Support Services are contingent upon the proper use of the Covered Software in accordanoo with Oatamax's published speciflcations and do not include any of the following: (1) servioo on Covered Software installed in unsafe or hazardous environments, as determined by Oatamax; (2) servioo resulting from accident, neglecl, alterations, improper use, or misuse of the Covered Software as neoossitated by adjustments and changes attempted by non-Oatamax personnel; (3) service to a version other than the current or the next mosl current version of the Software; (4) efforts to restore the software version and/or data beyond the most reoont back-up; (5) servioo related to software other than the Covered Software; (6) service related to unqualifled products, either hardware or software, that are attached or installed in the customer system that have not been previously approved by Oatamax; and (7) servioo request due to problems that are not the direcl result of Covered Software lioonsed by Oatamax. In the event that Support Servioos are provided at a location other than Oatamax's facilities, then Customer shall be charged Oatamax's then currenf hourly or daily rates for Support Servioos during all travel time plus all reasonable travei and lodging expenses of Oatamax and its representatives. Notwithstanding anything to the contrary contained in this Attachment, Oatamax shall use commercially reasonabie efforts to respond to problems set forth below. Priority Codes: The Codes below depict the priority level assigned by Oatamax to each issue or problem phoned in by Customer. "A Priority" - A Software error renders the Software inoperable. Resouroos assigned within two (2) hours after notioo during PPM. "8 Priority' - A Software error is detecled for a system module which seriously impairs system operations, but does not render it down. Resources assigned within four (4) hours after notioo during PPM. "C Priority" - Minor problem to be generally resoived during PPM within 30 days, "0 Priority" - Minor problems which Oatamax will plan to incorporafe into a future software release. 2. Custome(s Responsibilities Customer shall provide reasonable assistanoo to Oatamax in the pertormanoo of Support Servioos, including without limitation, providing Datamax copies of aU data and other flies reasonably required to verify, reproduce, diagnose and resoive reported problems, Customer is responsible for maintenanoo and installation of any common carrier equipment or communication services related to the Covered Software and not fumished by Oatamax, including without limitation, the neoessary modem and remote acooss software reasonably speclfled by Oatamax for the purposes of providing dial-up access to Oatamax. Customer is responsible for charges incurred for communication faciiities from Customers facilities, whether 2000-181 incurred by Customer or by Datamax service representatives while pertorming service on the Covered Software. Customer is responsible for pertorming all system software backups and restoration of data. Customer shall notify Datamax of any Covered Software failure and shall allow Datamax full and free acooss to the Covered Software tor pertorming Support Services. Customer agrees that Datamax shall have all rights and lioonses of third parties necessary or appropriate for Datamax to access the hardware and third party software in the pertormanoo of the Support Services. 3. Alterations and Additions. Datamax will not be responsible to Customer for loss of use of the Covered Software or for any other liabilities arising from alterations, additions or modifications which are made to the Covered Software by other than authorized representatives of Datamax. If in the opinion of Datamax, any such aiteration, addition or modification adversely affecls Datamax's ability to render Support Servioos, Datamax reserves the right to terminate this Attachment immediately upon written notice to Customer. 4. Term and Applicability to Other Attachments with Datamax. If Customer elecls at the same time as it executes a Purchase, Lioonse and Service Agreement to have this Attachment appiy, then (a) the initial term shall begin ninety (90) days after the Acooptance Date (the Acoeptanoo Date shall be the date that Covered Software is loaded and passes Datamax's test prooedures at Customers site), If this Attachment flrst goes into effect at any other time, the initial term shall commenoo on the date of execution or signing of this Attachment. The initial term shall terminate on Deoomber 31 of the year in which Ihe initial term commenood. The term of servioo for upgrades and other software added as Covered Software after the initial Acoeptanoo Date shall be coterminous with the term of servioo applicable to the Covered Software initially covered. After the initiai term, Support Servioes shall be automatically renewed for sucoessive one (1) year periods unless either party notifles the other on or before ninety (90) days prior to the end of the then existing term, 5. Support Fees A. Definition. "Support Fees" are the total annual charges designated as such on Schedule A. Support Fees cover Support Servioos pertormed at Datamax's facilities. After the initial term and upon thirty (30) days written notice, Datamax may change the Support Fees to its standard support fees then in effecl. If the Support Fees are increased, Customer may terminate service as of the effeclive date of such increase, upon flfteen (15) days advance written notioo to Datamax. If Customer does not terminate servioo as just stipulated, the new Support Fees shall become effeclive on the date specifled in the notice. New Support Fees shall not exceed Datamax's fees charged 10 similarly situated customers, B. Invoices. Support Fees will begin ninety (90) days after the Acceptanoo Date. Support Fees for renewal terms shall be payable annually in advanoo on or before January 1 of each year. One-time charges will be invoioed as incurred. Partial year invoicing will be prorated on the basis of a thirty-day (30-day) month, Customer shall pay the Support Fee and all other invoice charges in full within thirty (30) days of the invoice date. All amounts payable under this Attachment shall be paid in U.S. Dollars. C. Default Customer shall be deemed to have defaulted in payment if it has not paid Datamax all amounts due within thirty (30) days after receipt of invoice. Customers failure to pay any charges when due shall also constitute sufficient cause for Datamax to suspend or terminate servioo under this Attachment. 6. DISCLAIMER OF WARRANTY AND LIMITATION OF LIABILITY DATAMAX MAKES NO REPRESENTATION OR WARRANTY OF ANY KIND, DIRECTLY OR INDIRECTLY, EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, ANY WARRANTIES OF FITNESS FOR PARTICULAR PURPOSES OR REQUIREMENTS OR OF MERCHANTABILITY, WITH RESPECT TO THE SUPPORT SERVICES OR ANY PARTS THEREOF. DATAMAX SHALL NOT BE LIABLE TO CUSTOMER, OR ANY OTHER PARTY, FOR ANY LOSS, DAMAGE, OR EXPENSE OF ANY KIND OR NATURE CAUSED, DIRECTLY OR INDIRECTLY, BY THE SUPPORT SERVICES OR ANY UNFITNESS OR INADEQUACY OF THE SUPPORT SERVICES, OR BY CUSTOMER'S NEGLIGENCE, OR FOR ANY LOSS OF PROFITS, LOSS DF USE, INTERRUPTION OF BUSINESS, LOSS OF REVENUES, LOSS OF DATA, OR FOR ANY OTHER DAMAGES OR CLAIMS, WHETHER BASED ON STRICT OR ABSOLUTE TORT LIABILITY, NEGLIGENCE, CONTRACT, OR OTHERWISE, EVEN IF DATAMAX KNEW OR SHOULD HAVE KNOWN OF THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT SHALL DATAMAX BE LIABLE FDR MORE THAN THE SDFTWARE SUPPORT FEES PAID UNDER THIS ATTACHMENT. The DISCLAIMER OF WARRANTIES AND LIMITATION OF LIABILITY set forth above produoo speciflc legal rights. Customer may have other rights which vary from state to state. Some states have laws which require warranty and liability rights differently from those set forth above. In such states the minimum required warranty and liability terms shall apply and any required implied warranty shall be limited in duration to ninety (90) days after the Acooptanoo Date of the Covered Software. Any action arising out of this Attachment or the Support Services provided hereunder (whether in contract, warranty, or in tort) must be brought by Cuslomer within one year after the claim to which it relates flrst becomes known (or reasonably should have become known). 2 ,. 2000-181 " . . 7. Supplemental Support Service : A. Movement of Covered Software. Covered Software moved to a location within North America shall continue to be serviood under this Attachment at the option of Datamax. Datamax shall have the righl to alter the type and schedule of maintenanoo provided to the relocated Covered Software. Customer shall give Datamax at least thirty (30) days advanoo written notice specifying the new location prior to any movement. B. other Services. Any services rendered by Datamax that are not included in the scope of Support Servioos, if requested by Customer, will be pertormed at Datamax's discretion and, if pertormed, will be charged to Customer al current Customer Servioo time and material rates and terms then in effect. 8. Source Code Escrow. A copy of the source code version of the Covered Software (Source Code) has been placed in the possession of Data Securities Intemational, Inc. (Escrow Agent), with all fees and expenses to be paid by Customer. Customer, and Escrow Agent shall in gooc faith negotiate an agreement mutually agreeable to the parties which shall include provisions protecting the confldentiality and non-disclosure of the Souroo Code and shall provide for the terms regarding release of the Souroo Code, 9. General Terms and Conditions. The parties acknowledge that the General Terms and Conditions contain provisions that govern the entire relationship among the parties. Accordingly, in the event of any conflict between the General Terms and Conditions and this Attachment, the General Terms and Conditions shall control and govern, Title: (Type or print name): ~ ~/eU(' 4V'e C%, U/, rrU) /-Dn:c:w2. t/. p. By: fA- Datamax Technologies, Infc.... _ _ (' By /V~ - (Type UI\ lIu Title: mf-""'loL , 'ill ," Z-f..-\? C('{J Date: Date: 3 " -- 2000-181 Professional Services Attachment This Professional Servioos Attachment (hereinafter "Attachment ') between Datamax Technologies, Inc. (hereinafter "Datamax") and (hereinafter "Custome() is an addendum to the Purchase, Lioonse and Service Agreement between Datamax and Customer dated . Customer agrees to the following terms and conditions which are incorporated in and made a part of the Purchase, License and Service Agreement. 1. Services A. The servioos to be pertormed by Datamax under this Attachment may include, but are not limited to: training, consulting, special studies, implementalion, installation evaluations, programming and documentation, application design and development, systems analysis and design, conversions and implementation planning (colleclively referred to as the "Servioos"). Services that are agreed as of the effective date of this Attachment are described in the Statement of Work. B. Each time Customer desires to engage Datamax to provide Services to Cuslomer, the parties will enter into a mutually agreeable Statement of Work. Each Statement of Work will at a minimum: (i) describe the speciflc Services that we are to provide to Customer under that engagement, (ii) set forth the fees that Customer agrees to pay for those Servioos and the manner in which Customer agrees 10 pay those fees, (iii) set fourth the time frame for pertormanoo of those ServiOOs, and (iv) incorporate by referenoo the terms and conditions of this Attachment. C. Hours of Servioo: The Datamax consultant will pertorm Servioos during the hours of 8:00am and 5:00pm., local time, Monday through Friday, excluding Datamax holidays. Customer may request in writing extended hours beyond the normal hours of servioos at the prevailing surcharge rates. D. Should an Datamax consultant be unable to pertorm the Servioos under this Attachment because of illness, resignation or other causes beyond Datamax's control, Datamax will attempt to replaoo such consultant within a reasonable time, but Datamax shall not be liable for failure to replaoo such consultant within the schedule, E. Customer shall furnish Datamax, at Customers expense, all technical data and information as may be determined by Datamax to be necessary for the pertormanoo of the Servioos. Customer shall grant Datamax access to the Software and the hardware on which the Software runs at such times and so conflgured as may be required for the adequate pertormance of the Servioos. Customer agrees that Datamax shall have all rights and licenses of third parties neoossary or appropriate for Datamax to acoess Ihe hardware and third party software in the pertormanoo of the Servioos. 2. Charges A. Customer agrees to pay fees for the Services as provided on Statement of Work, or if not provided on Statement of Work, Customer agrees to pay for all Services pertormed , including reasonable travel, subsistenoo, and lodging in accordanoo with Datamax's established rates and minimums in effect when Services are rendered. Additionally, the Customer agrees to reimburse Datamax for any special or unusual expenses incurred at the Customers speciflc request. B, All charges and rates are exclusive of all sales, use and like taxes. Such taxes are the responsibility of the Customer and will be billed to the Customer as a separate line item on each invoice. C. All charges and rates are based on Datamax's fhen current schedule of charges and rates and are subject to change by Datamax upon advanoo written notice. Quoted charges and rates will be held flrm for ninety (90) days from the date of quotation. 3. Control and Supervision A. While present on the Customers premises and pertorming Servioos under this Attachment, Datamax shall conform to Customers reasonable, published policies and procedures disclosed to Datamax and shall abide by Customers direclions which are consistent with the nature and scope of the Servioos to be provided. B. It is the express intention of the parties that Datamax and/or the Datamax consullant is an independent contractor and not an employee, agent, or partner of Customer. Nothing in this Attachment shall be interpreted as creating the relationship of employer and empioyee between the Datamax consultant and Customer. 4. Rights in Data Title to and ownership of all written material created for Customer under this Attachment, Including, but nol limited to, software, magnetic and optical disks, tapes, listings and other software documentation (colleclively referred to as "Data") flrst developed or created by Datamax under this Attachment and all proprietary rights therein shall at all times remain with Datamax; however, Datamax, subjecl to the payment by Customer of all charges related to the serviOOs, grants to Customer a personal, perpetual, non-exclusive, non-transferable and royalty free Iioonse to use such . . , 2000-181 Data furnished to Customer by Datamax under this Attachment. All other software and related documentation fumished hereunder shall be subjecl to Datamax's then prevailing Purchase, License and Service Agreement. Exoopt and to the extent expressly provided in this Paragraph, no Iioonse or other right is hereby transferred or granted to Customer, including any lioonse by implication, estoppel or otherwise, under any patent, trade secret, trademark, or copyright. "' .. . 5. Consultant(s) The parties recognize that the Datamax consultant(s) provided under this Attachment may pertorm similar services from time to time for others, Accordingly, this Attachment shall not prevent Datamax from pertorming such similar servioos or restrict Datamax's use of the same consultant(s) provided under this Attachment. Datamax will make every effort consistent with sound business practices to honor the speciflc request of the Customer with regard to the assignment of its consultant(s); however, Datamax reserves the sole right to determine each assignment of Datamax consultant(s) under this Attachment. 6. Term A. This Attachment shall become effective on the date of acceptanoo by Datamax and shall remain in foroo until terminated with thirty (30) days prior written notioo. Completion of any Services, any ordered Servioos or the absenoo of orders for Servioos shall not terminate this Attachment, it being the intenl of the parties to keep this Attachment in effecl in the event of future orders for Servioos. B. Datamax may, upon mutual written agreement with Customer, add to or modify the terms and conditions of Ihis Attachment to meet Datamax's then current policies and service offerings. 7. DISCLAiMER OF WARRANTY AND LIMITATION OF LIABILITY, DATAMAX MAKES NO REPRESENTATION OR WARRANTY OF ANY KIND, DIRECTLY OR INDIRECTLY, EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, ANY WARRANTIES OF FITNESS FOR PARTICULAR PURPOSES OR REQUIREMENTS OR OF MERCHANTABILITY, WITH RESPECT TO THE SERVICES OR ANY PARTS THEREOF. DATAMAX SHALL NOT BE LIABLE TO CUSTOMER, OR ANY OTHER PARTY, FOR ANY LOSS, DAMAGE, OR EXPENSE OF ANY KIND OR NATURE CAUSED, DIRECTLY OR INDIRECTLY, BY THE SERVICES OR ANY UNFITNESS OR INADEQUACY OF THE SERVICES, OR BY CUSTDMER'S NEGLIGENCE, OR FDR ANY LOSS OF PROFITS, LOSS OF USE, INTERRUPTION OF BUSINESS, LOSS OF REVENUES, LOSS OF DATA, OR FOR ANY OTHER DAMAGES OR CLAIMS, WHETHER BASED ON STRiCT OR ABSOLUTE TDRT LIABILITY, NEGLIGENCE, CONTRACT, OR OTHERWISE, EVEN IF DATAMAX KNEW DR SHOULD HAVE KNOWN OF THE POSSiBILITY DF SUCH DAMAGES. IN NO EVENT SHALL DATAMAX BE LIABLE FOR AMOUNTS IN EXCESS OF THE SERVICE FEES PAID UNDER THIS ATTACHMENT. The DISCLAIMER OF WARRANTIES AND LIMITATION OF LIABILITY set forth above produoo speciflc legal rights. Customer may have other rights which vary from state to state. Some states have laws which require warranty and liability rights differently from those set forth above. In such states the minimum required warranty and liability terms shall apply and any required implied warranty shall be limited in duration to ninety (90) days from the date Services were provided. Any action arising out of this Attachment or the Servioos provided hereunder (whether in contract, warranty, or in tort) must be brought by Customer within one year after the claim to which it relates flrst becomes known (or reasonably should have become known), 9. General Terms and Condijions. The parties acknowledge that the General Terms and Conditions contain provisions that govern the entire relationship among the parties. Accordingly, in the event of any conflict between the General Terms and Conditions and this Attachment, the General Terms and Conditions shall control and govem, Datamax Technologies, ~ By /~ (Type or print name): ~ ~ecu4'...A(' /~ ....; ;/'0; -:;. ~. W. t9--U Custo Title: T~~ i/: /'~ BY' " Date: Date: 11'\ "'1 t\ ~.. . Lu ?JJI7CY.X; 2