HomeMy WebLinkAbout1999-142
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RESOLUTION NO. 1999-142
RESOLUTION OF THE CITY OF SAN BERNARDINO AUTHORIZING A
FISCAL YEAR 99/00 MAINTENANCE SERVICES AGREEMENT WITH
DA T AMAX TECHNOLOGIES, INC. FOR MAINTENANCE OF IMAGING
EQUIPMENT AND SOFTWARE FOR THE CITY OF SAN BERNARDINO.
BE IT RESOLVED BY THE MAYOR AND COMMON COUNCIL OF THE
CITY OF SAN BERNARDINO AS FOLLOWS:
SECTION 1: The Mayor is hereby authorized and directed to execute on
behalf of the City an agreement by and between the City of San Bernardino and
Datamax Technologies, Inc. for a fiscal year 99/00 maintenance services agreement
of optical imaging hardware and software for a total amount of$57,22l.32 for the
City of San Bernardino.
SECTION 2: The autllorization to execute the above referenced agreement
order is rescinded if it is not issued within sixty (60) days of the passage of tllis
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16
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resolution.
I HEREBY CERTIFY that the foregoing resolution was duly adopted by the
18 Mayor and Common Council of the City of San Bernardino at a jOin~ meeting
regl& A.l
19 thereof, held on the 21st
20 to wit:
21 IIII
22 IIII
IIII
23 IIII
IIII
24 IIII
25 IIII
IIII
26 IIII
27
28
June
day of
, 1999, by the following vote,
L_m
1999-142
...
1
2 RESOLUTION AUTHORIZING FISCAL 99/00 MAINTENANCE SERVICES
3 AGREEMENT WITH DATAMAX TECHNOLOGIES, INC. FOR MAINTENANCE
OF OPTICAL IMAGING HARDWARE AND SOFTWARE.
4
18 The foregoing resolution is hereby approved tllis
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20
21
22
Approved as to form and legal content:
23 James . Penman, City Attorney
24 BY:
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28
June ,1999.
Z-L~
alles, Mayor
an Bernardino
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1999-'142
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Purchase, License and Service Agreement
This Purchase, License and Service Agreement is made and entered into by and between Datamax Technologies, Inc. ('Datamax"), located at 6101 W,Centinela
Ave" Culver City, CA, 90230 and City of San Bernardino (hereinafter "Customen located at: 300 North "0" Street, San Bernardino, CA 92418
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 (the
'Attachments"), all Schedules referenced 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 referenced herein and shall become
effective upon acceptance by an authorized Oatamax employee,
Attachments
Custome(s Initials
. Software Support Attachment (together with Schedule A )
. Professional Services Attachment
. Hardware Maintenance Attachment (together with Schedule B)
. Other:
This Agreement constitutes the entire agreement between the parties on the subject hereof and supersedes all prior or contemporaneous agreements, negotiations,
representations and proposals, written or oral. This Agreement does not operate as an acceptance 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 understood that any purchase order issued by Customer shall be for
Customer's convenience only. Acknowledgment of a Customers Purchase Order by Oatamax shall not constitute acceptance 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.
Date:
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A-CVPG.DOC
1999-142
General Terms and Conditions
. .
1. General. These General Terms and Conditions are intended to provide for terms that are common to the Standard Software License Attachment, the
Software Support Attachment, the Professional Services Attachment, the Hardware Purchase Attachment, the Hardware Maintenance Attachment,
and any other attachments and schedules which incorporate these terms and conditions, Accordingly, in the case of any conflict between the
General Terms and Conditions and any other Attachment or Schedule, the General Terms and Conditions shall control and govern, unless otherwise
expressly stated to the contrary,
2. LIMITATIONS OF LIABILITY. Except as expressly provided in any warranty contained in the Attachments or as expressly provided by law, Oatamax
shall not be liable for any loss or damage claimed to have resulted from the use, operation or pertormance of the Software, the Hardware, the
Support Services, the Services (described in the Professional Services Attachment), the Maintenance Services, and any other products, services and
software provided in this Agreement (collectiveiy, the "Products"), regardless of the form of action, In no event shall Datamax 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 defects, 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 negligence 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 Datamax representative shall be
binding on Datamax 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 AND 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 directly or indirectly, separately or as part of any system,
without first obtaining a license from the U,S, Department of Commerce or any other appropriate agency of the U,S, Government, 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 occurrence 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 Datamax, (8) 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 receiver, 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 event(s) is not remedied to the reasonable satisfaction of Datamax within twenty
(20) days after Datamax has sent written notice to Customer, (E) Customer informs Datamax 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 aftect 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, device drivers, third party operating systems, and other third party software
with the Software and the Hardware;
. The instailation, 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 affect
the warranty contained in Section 6.A.2 of the License 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 specified by Datamax;
. 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, devices, methods,
techniques, drawings, processes, or portions thereof supplied by Oatamax, including the Software and the documentation thereof, are trade
secrets and confidential information of Oatamax or its suppliers and are furnished solely to assist Customer in the installation, operation and use
of the Hardware and Software. Trade secrets and confidential information include any information that is of value to Oatamax and is treated as
confidential, Customer agrees to hold the trade secrets and confidential information disclosed by Oatamax in strictest confidence and not to,
directly or indirectly, copy, reproduce, distribute, manufacture, duplicate, reveal, report, publish, disclose, cause to be disciosed, or otherwise
transfer the trade secrets and confidential information disclosed by Oatamax to any third party (except those third parties in a confidential
relationship to Customer) or utilize the trade secrets and confidential 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 the term of
8-GT&C.DOC
1999-142
the applicable Attachment and for a period of five years thereafter. Customer acknowledges that use or disclosure of Oatamax's trade secrets
or confidential information would cause irreparable harm to Datamax,
The immediate preceding paragraph shall not apply to any such confidential information or document that is in Customers possession prior to
receipt from Datamax, 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 Datamax to inspect Customers facilities (collectively, the 'Customer Proprietary Information"), All such
disclosures which Customer informs Datamax are confidential, including any information obtained in connection with any inspection of
Customers facilities, are to be considered as confidential and all such disclosures shall be maintained in confidence by Datamax unless they
become public knowledge through no fault of Datamax, Datamax 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 confidence and trust bestowed on Datamax by Customer.
Datamax acknowledges and agrees that disclosure or unauthorized use of the Customer Proprietary Information disctosed 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, induce 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 not assign any of its rights or obligations hereunder except with Datamax'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 successors and permitted assigns,
Dates or times by which Oatamax is required to render periormance 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 faiure 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 subject to, govemed by, and construed in accordance with the laws of the state of California without regard to its rules
goveming conflicts 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.
. Notices hereunder shall be sent to the addressees on the face of this Agreement, or to such other addresses as specified by a notice complying
herewith, and shall be deemed received on the earlier of actual receipt 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
amplify 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' fees, costs and expenses.
. Datamax shall carry Workmens's Compensation, Employers Liability Insurance and any other insurance which will protect Datamax from
ctaims in connection with the services to be provided hereunder, and Datamax's obligations under the Agreement and any Attachments: and as
otherwise required by applicable laws, rules, ordinances and regulations, Such insurance shall be in the form prescribed by and in the amounts
required by the state or states where services are being performed under the Agreement and any Attachments,
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B-GT&C.DOC
1999-142
Software Support Attachment
This Software Support Attachment (hereinafter 'Attachment') between Oatamax Technologies, Inc. (hereinafter 'Datamax") and City of San
Bernardino (hereinafter 'Custome~) is an addendum to the Purchase, License and Service Agreement between Oatamax and Customer dated
Customer agrees to the following tenns and conditions which are incorporated in and made part of the Purchase, License and
Service Agreement.
1. Software Support
Datamax agrees to provide to Customer the services described beiow for the software for which software support services are electad on Schedule
A (the Covered Software), in accordance with the following tenns and conditions:
A. Hours of Service Availability. Payment of the standard Support Fees (as defined in Section S.A) entitles Customer to Support Service (as
defined in 1.8) during the Principal Period of Maintenance (PPM). PPM is between the hours of 8:00 a.m. and 6:00 p,m, Pacific time, Monday
through Friday, excluding Datamax holidays (Datamax's Normal Business Hours) while this Attachment is in effect. All Covered Software
elected in Schedule A or subsequently added by amendment shall have the same PPM, Customer may request, in writing, special extended
periods of coverage, subject to Datamax's current policies, tenns, conditions, and prices for such service,
B. Scope of Service. Datamax will provide service during the PPM as long as the Covered Software is at the current or the next most current
revision level and operated in accordance with Datamax's published specifications, Support Services are (1) telephone support to help resolve
software failures during the PPM; resolution may be delivered as a Software Maintenance Update (SMU), software bug fix module or
workarounds: (2) Commercially reasonable efforts to report and test fixes to defects in the Covered Software that materially and adverseiy affect
the efficiency or use of the Covered Software as described in Oatamax's written specifications; software program fixes will be provided for the
current rei ease only; and (3) delivery of all software revisions provided by vendor that Datamax deems necessary with respect to the Covered
Software; and Datamax 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. Oatamax may also offer to Customer new versions of the Covered Software that
contain more than error corrections and minor enhancements, subject to an additional license fee, Datamax shall have the sole discretion to
determine whether an updated or enhanced version of the Covered Software will be subject to an additional iicense fee,
D. Service limitations. Support Services are contingent upon the proper use of the Covered Software in accordance with Oatamax's published
specifications and do not include any of the following; (1) service on Covered Software installed in unsafe or hazardous environments, as
detennined by Datamax; (2) service resulting from accident, neglect, alterations, improper use, or misuse of the Covered Software as
necessitated by adjustments and changes attempted by non-Oatamax personnel; (3) service to a version other than the current or the next most
current version of the Software; (4) efforts to restore the software version and/or data beyond the most recent back-up; (5) service related to
software other than the Covered Software; (6) service related to unqualified products, either hardware or software, that are attached or installed
in the customer system that have not been previously approved by Datamax; and (7) service request due to problems that are not the direct
result of Covered Software licensed by Oatamax, In the event that Support Services are provided at a location other than Datamax's facilities,
then Customer shall be charged Datamax's then current houriy or daily rates for Support Services during all travel time plus all reasonabie
travel and lodging expenses of Datamax and its representatives. Notwithstanding anything to the contrary contained in this Attachment,
Datamax shall use commercially reasonable efforts to respond to problems set forth below.
Priority Codes: The Codes below depict the priority level assigned by Datamax to each issue or problem phoned in by Customer.
'A Priority' - A Software error renders the Software inoperable. Resources assigned within two (2) hours after notice during PPM.
"B Priority' - A Software error is detected for a system module which seriously impairs system operations, but does not render it down.
Resources assigned within four (4) hours after notice during PPM.
'C Priority" - Minor problem to be generally resolved during PPM within 30 days.
"0 Priority" - Minor problems which Datamax will plan to incorporate into a future software release,
2. Custome(s Responsibilities
Customer shall provide reasonabie assistance to Datamax in the pertormance of Support Services, including without limitation, providing Datamax
copies of all data and other files reasonably required to verify, reproduce, diagnose and resolve reported problems. Customer is responsible for
maintenance and installation of any common carrier equipment or communication services related to the Covered Software and not furnished by
Datamax, including without limitation, the necessary modem and remote access software reasonably specified by Datamax for the purposes of
providing dial-up access to Datamax, Customer is responsible for charges incurred for communication facilities from Customer's facilities, whether
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1999-142
incurred by Customer or by Datamax service representatives while pertorming service on the Covered Software, Customer is responsible lor
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 access to the Covered Software for pertorming Support Services, Customer agrees that Datamax shall have all rights and
licenses of third parties necessary or appropriate for Datamax to access the hardware and third party software in the pertormance 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 Oatamax, any such
alteration, addition or modification adversely affects Datamax's ability to render Support Services, Datamax reserves the right to terminate this
Attachment immediately upon written notice to Customer.
4. Term and Applicability to Other Allachments with Dalamax.
If Customer elects at the same time as it executes a Purchase, License and Service Agreement to have this Attachment apply, then (a) the initial
term shall begin ninety (90) days after the Acceptance Date (the Acceptance Oate shall be the date that Covered Software is loaded and passes
Oatamax's test procedures at Customer's site), If this Attachment first goes into effect at any other time, the initial term shall commence on the date
of execution or signing of this Attachment. The initial term shall terminate on December 31 of the year in which the initial term commenced, The
term of service for upgrades and other software added as Covered Software after the initial Acceptance Oate shall be coterminous with the term of
service applicable to the Covered Software initially covered. After the initial term, Support Services shall be automatically renewed for successive
one (1) year periods unless either party notifies 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 Services 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 effect, If the Support Fees are increased, Customer may terminate service as of the effective date of such increase, upon
fifteen (15) days advance written notice to Datamax, If Customer does not terminate service as just stipulated, the new Support Fees shall
become effective on the date specified in the notice, New Support Fees shall not exceed Datamax's fees charged to similarly situated
customers.
B. Invoices. Support Fees will begin ninety (90) days after the Acceptance Oate. Support Fees for renewal terms shall be payable annually in
advance on or before January 1 of each year. One-time charges will be invoiced 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, Oollars,
C. Defaul!' Customer shall be deemed to have defaulted in payment if it has not paid Datamax all amounts due within thirty (30) days affer receipt
of invoice, Customers failure to pay any charges when due shall also constitute sufficient cause for Datamax to suspend or terminate service
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,
INCLUOING, WITHOUT liMITATION, ANY WARRANTIES OF FITNESS FOR PARTICULAR PURPOSES OR REQUIREMENTS OR OF
MERCHANTABiliTY, WITH RESPECT TO THE SUPPORT SERVICES OR ANY PARTS THEREOF, OATAMAX SHALL NOT BE liABLE TO
CUSTOMER, OR ANY OTHER PARTY, FOR ANY LOSS, OAMAGE, OR EXPENSE OF ANY KINO OR NATURE CAUSEO, OIRECTLY OR
INDIRECTLY, BY THE SUPPORT SERVICES OR ANY UNFITNESS OR INAOEQUACY OF THE SUPPORT SERVICES, OR BY
CUSTOMER'S NEGliGENCE, OR FOR 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 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 FOR MORE THAN THE SOFTWARE SUPPORT FEES PAID UNDER THIS
ATTACHMENT,
The DISCLAIMER OF WARRANTIES ANO liMITATION OF liABiliTY set forth above produce specific 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 appiy and any required implied warranty shall be limited in duration to ninety
(90) days affer the Acceptance 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 Customer within one year after the claim to which it relates first becomes known (or reasonably should have become known),
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D-SWSUP.oOC
19.99-142
7. Supplemental Support Service
A. Movement of Covered Software. Covered Software moved to a location within North America shall continue to be serviced under this
Attachment at the option of Datamax. Datamax shall have the right to alter the type and schedule of maintenance provided to the relocated
Covered Software. Customer shall give Datamax at least thirty (30) days advance 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 Services, if requested by Customer, will
be performed at Oatamax's discretion and, if performed, will be charged to Customer at current Customer Service 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 piaced in the possession of Data Securities International, Inc,
(Escrow Agent), with all fees and expenses to be paid by Customer, Customer, and Escrow Agent shall in good faith negotiate an agreement
mutually agreeable to the parties which shall include provisions protecting the confidentiality and non-disclosure of the Source Code and shall
provide for the terms regarding release of the Source Code,
9. General Tenns 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.
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1999-142
Prolessional Services Attachment
This Professional Services Attachment (hereinafter . Attachment ") between Oatamax Technologies, Inc, (hereinafter 'Oatamax") and City of San
Bernardino (hereinafter 'Customen is an addendum to the Purchase, License and Service Agreement between Oatamax 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 services to be pertormed by Oatamax under this Attachment may include, but are not limited to: training, consulting, speciai studies,
implementation, installation evaluations, programming and documentation, application design and development, systems analysis and
design, conversions and implementation planning (collectiveiy referred to as the "Services"), 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 Oatamax to provide Services to Customer, the parties will enter into a mutually agreeable Statement
of Work, Each Statement of Work will at a minimum: (i) describe the specific Services that we are to provide to Customer under that
engagement, (ii) set forth the fees that Customer agrees to pay for those Services and the manner in which Customer agrees to pay those
fees, (iii) set fourth the time frame for pertormance of those Services, and (iv) incorporate by reference the terms and conditions of this
Attachment.
C, Hours of Service: The Oatamax consultant will pertorm Services during the hours of 8:00am and 5:00pm., local time, Monday through
Friday, excluding Oatamax holidays, Customer may request in writing extended hours beyond the normal hours of services at the prevailing
surcharge rates.
D. Should an Oatamax consultant be unable to pertorm the Services under this Attachment because of illness, resignation or other causes
beyond Oatamax's control, Oatamax will attempt to replace such consultant within a reasonable time, but Oatamax shall not be liable for
failure to replace such consultant within the schedule,
E, Customer shall furnish Oatamax, at Customer's expense, all technical data and information as may be determined by Oatamax to be
necessary for the pertormance of the Services. Customer shall grant Oatamax access to the Software and the hardware on which the
Software runs at such times and so configured as may be required for the adequate pertormance of the Services. Customer agrees that
Oatamax shall have all rights and licenses of third parties necessary or appropriate for Oatamax to access the hardware and third party
software in the pertormance of the Services.
2. Charges
A. Customer agrees to pay fees for the Services as provided on Statement 01 Work, or if not provided on Statement of Work, Customer
agrees to pay for all Services pertormed , including reasonable travel, subsistence, and lodging in accordance with Oatamax's established
rates and minimums in effect when Services are rendered, Additionally, the Customer agrees to reimburse Oatamax for any special or
unusual expenses incurred at the Customers specific 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 Oatamax's then current schedule of charges and rates and are subject to change by Oatamax upon
advance written notice, Quoted charges and rates will be held firm for ninety (90) days from the date of quotation,
3. Control and Supervision
A. While present on the Customers premises and pertorming Services under this Attachment, Oatamax shall conform to Customers
reasonable, published policies and procedures disclosed to Oatamax and shall abide by Customers directions which are consistent with the
nature and scope of the Services to be provided,
B. It is the express intention of the parties that Oatamax and/or the Oatamax consultant 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 employee
between the Oatamax consultant and Customer,
4. Rights in Data
Title to and ownership of all written material created for Customer under this Attachment, Including, but not limited to, software, magnetic and
optical disks, tapes, listings and other software documentation (collectively referred to as 'Data") first developed or created by Oatamax under this
1999~142
Attachment and all proprietary rights therein shall at all times remain with Datamax; however, Datamax, subject to the payment by Customer of all
charges related to the services, grants to Customer a personal, perpetual, non-exclusive, non-transferable and royalty free license to use such
Data fumished to Customer by Oatamax under this Attachment. All other software and related documentation fumished hereunder shall be
subject to Datamax's then prevailing Purchase, License and Service Agreement. Except and to the extent expressly provided in this Paragraph, no
license or other right is hereby transferred or granted to Customer, including any license by implication, estoppel or otherwise, under any patent,
trade secret, trademark, or copyright.
5. Consultant(s)
The parties recognize that the Oatamax 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 services or restrict Oatamax's use of the same consultant(s)
provided under this Attachment. Oatamax will make every effort consistent with sound business practices to honor the specific 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.
a.Term
A. This Attachment shall become effective on the date of acceptance by Oatamax and shall remain in force until terminated with thirty (30) days
prior written notice. Completion of any Services, any ordered Services or the absence of orders for Services shall not terminate this
Attachment, it being the intent of the parties to keep this Attachment in effect in the event of future orders for Services,
B, Datamax may, upon mutual written agreement with Customer, add to or modify the terms and conditions of this Attachment to meet
Datamax's then current policies and service offerings.
7. DISCLAIMER OF WARRANTY AND LIMITATION OF LIABILITY.
OATAMAX MAKES NO REPRESENTATION OR WARRANTY OF ANY KINO, 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, OAMAGE, OR EXPENSE OF ANY KIND OR NATURE CAUSED, OIRECTLY OR INOIRECTLY, BY
THE SERVICES OR ANY UNFITNESS OR INADEQUACY OF THE SERVICES, OR BY CUSTOMER'S NEGLIGENCE, OR FOR 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 TORT LIABILITY, NEGLIGENCE, CONTRACT, OR OTHERWISE, EVEN IF
DA T AMAX KNEW OR SHOULO HAVE KNOWN OF THE POSSIBILITY OF SUCH DAMAGES, IN NO EVENT SHALL DA T AMAX BE LIABLE
FOR AMOUNTS IN EXCESS OF THE SERVICE FEES PAID UNOER THIS ATTACHMENT,
The DISCLAIMER OF WARRANTIES ANO LIMITATION OF LIABILITY set forth above produce specific 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 Services provided hereunder (whether in contract, warranty, or in tort) must be brought by
Customer within one year after the claim to which it relates first becomes known (or reasonably should have become known),
8. 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 govem,
Date:
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Date:
2
199~-142
Hardware Maintenance Attachment
This Hardware Maintenance Attachment (hereinafter 'Attachment') between Datamax Technoiogies, Inc. (hereinafter 'Datamax') and
City of San Bernardino (hereinafter 'Customer') is an addendum to the Purchase, License and Service Agreement between Datamax and Customer dated
Customer agrees to the foliowing terms and conditions which are incorporated in and made part of the Purchase, License and Service
Agreement.
1. Hardware Maintenance.
Datamax agrees to provide to Customer the services described below for the hardware for which hardware maintenance services are elected on Schedule
B (the Covered Hardware), in accordance with the foliowing terms and conditions:
A. Hours of Service Availability. Payment of the standard Maintenance Fees (as defined in Section 4,A) entitles Customer to Maintenance Services
(as defined in Section 1,C) during the Principal Period of Maintenance (PPM), PPM is between the hours of 8:00 a.m. and 6:00 p.m, Pacific time,
Monday through Friday, excluding Datamax holidays (Datamax's Normal Business Hours) while this Attachment is in effect, AIi Covered Hardware
included on the Schedule A or subsequently added by amendment shali have the same PPM. Customer may request, in writing, special extended
periods of coverage, subject to Datamax's current poiicies, terms, conditions, and prices for such service,
B. Eiiglbility for Service. Hardware is eligible for maintenance under this Attachment provided it is in good operating condition, Datamax's serviceabiiity
requirements are met and manufacturers serviceability, hardware and site environmental, safety, and health conditions are met. Hardware which is
not in good operating condition, as determined solely by Datamax, may be repaired and/or serviced by Oatamax to meet Eiigibity for Service under the
prevaiiing rates charged by Datamax and according to the General Terms and Conditions, In the event that any Covered Hardware cannot be restored
to good operating condition or does not meet Oatamax's serviceability requirements as determined solely by Datamax, this Attachment may be
terminated or the Covered Hardware may be removed from the Schedule A and not accepted for Maintenance Services under this Attachment.
C. Scope of Service. Oatamax shali provide the foliowing services (Maintenance Services) on the Covered Hardware:
1, Provide on-<:ali services to keep the Covered Hardware in good working order during the PPM. Datamax wili use its best efforts to provide
Maintenance Services at the Customer's site within an average time of four (4) hours foliowing notification of a Covered Hardware maifunction,
2. Provide suitable parts on an exchange basis for defective or malfunctioning Covered Hardware parts. Such exchanged parts shali have a life
expectancy not less than the majority of the components of the Covered Hardware, Exchanged parts removed from the Covered Hardware shali
become the property of Datamax. Parts instalied in the Covered Hardware wili become the property of the Customer provided timeiy payment of
Maintenance Fees are made by Customer.
3. Provide ali parts and labor for a manufacturers mandatory Field Change Order ('FCO') pertaining to Covered Hardware, when mandated by
manufacturer for product safety, personal injury, or property damage reasons or when, in Datamax's sole opinion, product reliability or maintenance
would be imprOVed.
4, Provide labor only for manufacturers required FCO's relating to product performance improvement or to design deficiency correction on Covered
Hardware,
D. Maintenance Limitations. Covered Maintenance shall not include the following:
1, Requests for Maintences Services after the PPM or outside the maintenance area,
2, Preventive maintenance and consumable replacement in accordance with the manufacturers specifications on the Covered Hardware,
3. Service provided for apparent or actual malfunctions or failures which are the result of operator error, software error, tampering, accident, misuse,
neglect, abuse, improper use or treatment of Covered Hardware, including unauthorized alteration, use, or interconnection of Covered Hardware by
electrical, electronic, or mechanical means with non-compatible Covered Hardware or software or with Covered Hardware or software not provided by
Datamax, unauthorized service (including, but not limited to, repair, adjustment, instaliation, modification, or reconfiguration) by a party other than
Datamax or a party approved by Oatamax, maintenance or faiiures in Covered Hardware not serviced by Datamax, unauthorized or improper
movement or transportation of Covered Hardware, electrical failure or malfunction external to the Covered Hardware, failure or malfunction of air
conditioning or humidity control, accident, or acts of God.
4, Service, instaliation, removal, refurbishment, or reconfiguration of Covered Hardware or devices not provided by Datamax,
5, Performance of normal operator functions,
6. Supplies and accessories used in Covered Hardware operation, or exterior painting or refinishing of Covered Hardware.
1999-142
7. Requests for service for installation, removal (de-installation), refurbishment, or reconfiguration of Covered Hardware,
8. Service for manufacturers FCO relating to improvement of Covered Hardware relative to speed, capacity, and the like or any other FCO not covered
in Section l,C including but not iimited to a FCO dated after the PPM or a FCO issued prior to the PPM but not pertormed,
D. Reservation of Rights
1, Oatamax reserves the right to terminate Maintenance Services on or refuse to service any or all Covered Hardware, when, as determined solely by
Oatamax, a hazard to safety or health exists at the Covered Hardware site location,
2. Datamax reserves the right, after the initial term of this Attachment or anytime thereafter, to terminate any or all Covered Hardware listed in the
Schedule A, when in Datamax's opinion Covered Hardware cannot be properly maintained on-site due to excessive wear, obselesence, Covered
Hardware deterioration or unavailability of parts, upon giving thirty (30) days' prior written notification to Customer.
3, Datamax reserves the right to provide Customer with Maintenance Service on hardware not covered under this Attachment, which will be charged to
the Customer at the prevailing rates charged by Datamax and according to the General Terms and Conditions,
4, Oatamax reserves the right to determine assignment of its employees.
5, Datamax reserves the right to subcontract Maintenance Services on Covered Hardware without additional charge to Customer, when in Datamax's
sole opinion such subcontracting is necessary to provide Maintenance Services, Datamax shall be responsible for providing appropriate superviSion
to ensure that such Maintenance Services meet or exceed Oatamax's responsibilities under this Attachment.
2. Customer's Responsibilities.
The Customer shall provide prompt notification of Covered Hardware malfunction to Datamax. The Customer shall ensure that Customer representative is
present at all times while Datamax is servicing the Hardware and allow Oatamax sufficient access to all Covered Hardware, communications, power, light,
and other necessary facilities, The Customer shall allow Datamax a reasonable work space and storage in the same area as the Covered Hardware,and
maintain site conditions within the common environmental range of all Covered Hardware as specified by manufacturers and Datamax's site
environmental, satety, and health requirements, The Customer shall provide and assume complete responsibility for security and back-up of data and
information recorded on or in Covered Hardware as Customer considers necessary.
3. Term and Applicability to Other Attachments with Datamax.
If Customer elects at the same time as it executes a Purchase License and Service Agreement to have this Attachment apply, then (a) the initial term shall
begin ninety (90) days after the Date Delivered (the Date Oelivered shall be the date that Covered Hardware is transferred to the Customer or a common
carrier F,O,6, origin), If this Attachment first goes into effect at any of her time, the initial term shall commence on the date of execution or signing of this
Attachment. The initial term shall terminate on December 31 of the year in which the initial term commenced, The term of service for other hardware added
as Covered Hardware after the initial Deilvered Date shall be coterminous with the term of service applicable to the Covered Hardware initially covered,
After the initial term, Maintenance Services shall be automatically renewed for successive one (1) year periods unless either party notifies the other on or
before ninety (90) days prior to the end of the then existing term.
4 Maintenance Fees
Pc Definition. Maintenance Fees are the total annual charges designated as such on Schedule A. Maintenance Fees cover Maintenance Services
pertormed by Datamax, After the initial term and upon thirty (30) days written notice, Oatamax may change the Maintenance Fees to its standard
maintenance fees then in effect. If the Maintenance Fees are increased, Customer may terminate Maintenance Services as of the effective date of
such increase, upon fifteen (15) days advance written notice to Datamax, If Customer does not terminate Maintenance Services as just stipulated, the
new Maintenance Fees shall become effective on the date specified in the notice, New Maintenance Fees shall not exceed Datamax's fees charged
to similariy situated customers,
B. Invoices. Maintenance Fees will begin ninety (90) days after the Date Delivered. Maintenance Fees for renewal terms shall be payable annually in
advance on or before January 1 of each year, One-time charges will be invoiced as incurred. Partial year invoicing will be prorated on the basis of a
thirty-day (30-day) month, Customer shall pay the Maintenance Fees 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 Oatamax to suspend or terminate Maintenance
Services under this Attachment.
5. Warranty.
2
1999-142
A Datamax warrants that product or parts thereof repaired or serviced by Datamax wili be free from defects in material and workmanship when L~sed
normaliy, with reasonable care, and with proper service and maintenance, for a period of ninety (90) days from the date of the repair or service,
B. DELAYS. Datamax shali not be liable for delays in deliveries caused by fire, flood, explosion, accident, materials or ener9Y shortage, labor trouble,
war, sabotage, government law or regulation, or any other cause reasonably beyond its control, but it shali use ali reasonable efforts to minimize the
extent of the delay.
C. DISCLAIMER OF WARRANTY AND LIMITATION OF LIABILITY
DATAMAX MAKES NO REPRESENTATION OR WARRANTY OF ANY KIND, DIRECTLY OR INOIRECTLY, EXPRESS OR IMPLIED, INCLUDING,
WITHOUT LIMITATION, ANY WARRANTIES OF FITNESS FOR PARTICULAR PURPOSES OR REQUIREMENTS OR OF MERCHANTABILITY,
WITH RESPECT TO THE MAINTENANCE SERVICES OR ANY PARTS THEREOF, EXCEPT AS PROVIOEO IN SECTION 5 A. DATAMAX SHALL
NOT INCUR ANY OTHER OBLIGATIONS OR LIABILITIES AND SHALL NOT BE LIABLE TO CUSTOMER, OR ANY OTHER PARTY, FOR ANY
LOSS, OAMAGE, OR EXPENSE OF ANY KIND OR NATURE CAUSED, OIRECTLY OR INOIRECTLY, BY THE MAINTENANCE SERVICES OR
ANY UNFITNESS OR INAOEQUACY OF THE MAINTENANCE SERVICES, OR BY CUSTOMER'S NEGLIGENCE, OR FOR ANY LOSS OF
PROFITS, LOSS OF USE, INTERRUPTION OF BUSINESS, LOSS OF REVENUES, LOSS OF OATA, OR FOR ANY OTHER DAMAGES OR
CLAIMS, WHETHER BASED ON STRICT OR ABSOLUTE TORT LIABILITY, NEGLIGENCE, CONTRACT, OR OTHERWISE, EVEN IF DATA MAX
KNEW OR SHOULO HAVE KNOWN OF THE POSSIBILITY OF SUCH DAMAGES, IN NO EVENT SHALL DATAMAX BE LIABLE FOR ANY
AMOUNTS IN EXCESS OF THE MAINTENANCE FEES PAlO UNOER THIS ATTACHMENT,
The DISCLAIMER OF WARRANTIES AND LIMITATION OF LIABILITY set forth above produce specific 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 shali apply and any required implied warranty shali be limited in duration to ninety (90) days after the
Delivered Oate of the Covered Hardware.
Any action arising out of this Attachment or the Maintenance Services provided hereunder (whether in contract, warranty, or in tort) must be brought by
Customer within one year after the claim to which it relates first becomes known (or reasonably should have become known),
6. Supplemental Maintenance Service
A. Movement of Covered Hardware. The Customer will provide to Datamax thirty (30) days' prior written notification of a Covered Hardware move,
Datamax will be under no obligation to continue Maintenance Services if Covered Hardware is moved without Datamax's prior written approval, At
Datamax's option, Datamax may provide to the Customer removal (de-instaliation) and reinstaliation services at the prevailing rates charged by
Datamax and according to the General Terms and Conditions, Datamax reserves the right to discontinue Maintenance Services under this
Attachment for Covered Hardware relocated outside the service area of an Datamax office.
B. Other Services. Any services rendered by Datamax that are not Included in the scope of Maintenance Services, if requested by Customer, will be
performed at Oatamax's discretion and, if performed, wili be charged to Customer at the prevailing rates charged by Datamax and according to the
General Terms and Conditions.
9. General Terms and Conditions.
The parties acknowledge that the General Terms and Conditions contain provisions that govem 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.
Date:
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(Type or print name):
Title:
3
1999-142
City of San Bernardino - All Departments
Datamax Technologies
6101 W. Centinela Ave., Suite 100
Culver City, CA 90230
Schedule A - Software
Support fee and Software for which software support services are elected:
QUANTITY DESCRIPTION UNIT PRICE AMOUNT
59 PMA-VisiFLOW 59 C $329,63 $19,448,17
1 PMA-VisiFLOW Project Builder $787.50 $787.50
I PMA - V isiFLO W Barcode Server $787.50 $787.50
I PMA-VisiFLOW Fax Server $1,023.75 $1,023.75
I PMA-VisiFLOW Commit Utility $1,575.00 $1,575.00
4 PMA-VisiFLOW Add. Scan $787,50 $3,150,00
I PMA-VisiFLOW Form Generator $315.00 $315.00
I PMA-VisiFLOW Import Utility $551.25 $551.25
I PMA-VisiFLOW Full Text Search 1,338.75 1,338,75
I PMA-VisiFLOW Event Server $1,500.00 $1,500,00
I OTG Extender DE-OA-M $105.00 $105.00
I OTG Extender DE-OI-M( 7x24) $5,184.00 $5,184.00
SUBTOTAL $35,765.92
SALES TAX 0
DISCOUNT (One Time Only) 0
(07.01.99-06.30.00) TOTAL DUE $35,765.92
1999-142
City of San Bernardino - All Departments
Datamax Technologies
610 I W. Centinela Ave., Suite 100
Culver City, CA 90230
'.
Schedule B
Support fee and Hardware for which support services are elected:
QUANTITY DESCRIPTION UNIT PRICE AMOUNT
I A6967-S I 80/4 Jukebox (7x24) $12,387.90 $12,387.90
4 Fujitsu M3096EX $945.00 $3,780.00
3 Kofax KF-9275-1501 $525.00 $1,575,00
I Kofax KF-7300-1201 $262.50 $262.50
2 Bell & Howell 40400 Bulk Feed Scanner 1500.00 $3,000.00
2 Kofax Adrenaline Scan Card & SW 225.00 $450,00
SUBTOTAL $21 ,455.40
SALES TAX 0
DISCOUNT (One Time Only) 0
(07.01.99-06.30.00) TOTAL DUE $21 ,455.40