HomeMy WebLinkAbout1998-187
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3 RESOLUTION OF THE CITY OF SAN BERNARDINO AUTHORIZING A
FISCAL YEAR 98/99 MAINTENANCE SERVICES AGREEMENT WITH
4 DATAMAX TECHNOLOGIES, INC. FOR MAINTENANCE OF IMAGING
EQUIPMENT AND SOFTWARE FOR THE CITY OF SAN BERNARDINO.
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BE IT RESOLVED BY THE MAYOR AND COMMON COUNCIL OF THE
6 CITY OF SAN BERNARDINO AS FOLLOWS:
RESOLUTION NO.
98-187
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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
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Datamax Technologies, Inc. for a fiscal year 98/99 maintenance services agreement
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of optical imaging hardware and software for a total amount of $52,428.00 for the
12 City of San Bernardino.
13 SECTION 2: The authorization to execute the above referenced agreement
14 order is rescinded ifit is not issued within sixty (60) days of the passage of this
15 resolution.
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I HEREBY CERTIFY that the foregoing resolution was duly adopted by the
Mayor and Common Council of the City of San Bernardino at a regular meeting
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19 thereof, held on the
20 to wit:
6th
day of July
, 1998, by the following vote,
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23 III
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27 I I I
28 I I I
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98-187
1
RESOLUTION AUTHORIZING FISCAL 98/99 MAINTENANCE SERVICES
2 AGREEMENT WITH DATAMAX TECHNOLOGIES, INe. FOR MAINTENANCE
OF OPTICAL IMAGING HARDWARE AND SOFTWARE.
3
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17 The foregoing resolution is hereby approved this
g
day of ____J~ 1998.
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21
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Approved as to form and legal content:
22 James F. Penman, City Attorney
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98-187
Purchase, License and Service Agreement
This Purchase, License and Service A!1eement is made and entered into by and between Datamax Technologies, Inc. rDataInax"), located at 6101 W.Centinela
Ave., Culver City, CA, 90230 and City of San Bernardino (hereinafter .Custom....) located at: 300 North 'D' Slreet, San Bernardino, CA 92418
Datamax and Customer hereby a!1ee as follows:
This' A!1eemenr consists of this signature page, the General T eJTT1S and Conditions, those Attachments listed below which are designated by Customers initials
(the 'Attachments'), all Schedules referenced and all attachments. All references to 'A!1eemenr shall include this cover page, the General TeJTT1s and Conditions
and all such Attachments and Schedules. All future orders from Customer to Datamax shall be governed by the teJTT1S and conditions referenced herein and shall
become effective upon acceptance by an authorized Datamax employee.
Attachments
Custome~s Initials
. Software Support Attachment (together with Schedule A )
. Professional Services Attachment
. Hardware Maintenance Attachment (together with Schedule B)
. Other:
This A!1eement constitutes the entire a!1eement between the parties on the subject hereof and supersedes all prior or contemporaneous a!1eements, negotiations,
representations and proposals, IMitten or oral. This A!1eement does not operate as an acceptance of any conflicting lem1s 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
Custome~s convenience only. Acknowled!J'nent of a Customers Purchase Order by Datamax shall not constitute acceptance of any such additional or different
teJTT1S and conditions. This A!1eement may only be awarded, modified, supplemented, or deviated from by a IM'iting executed by an authorized Datamax employee
and Customer. By executing this A!1eement, Customer acknowledges that it has reviewed the lem1s and conditions incorporated into this A!1eement and agrees to
be legally bound by the same.
Title:
Datamax Technologies, Ince
By /. \/ oe...e~
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A.CVPGDOC
98-187
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 otheMse 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,
Dalarnax shall not be liable for any loss or damage claimed to have resulted from the use, operation or performance 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 (collectively, 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 clamages, even if Datamax has been advised of the possibility thereof,
(b) any clamages resulting from latent defects, loss of clata 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 clamages (except clamages 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 Dalarnax
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-'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, Dalarnax shall have
the right to tanninate this Agreement upon the occurrence of any of the following events: (A) Customer fails to perform or observe any of its
obligations to Dalarnax under this Agreement, including, but not limited to, the timely payment of any sums due Dalarnax, (8) Customer aanits in
IIofiting its inability to pay its debts generally as they become due, or executes an assignment or similar document for the benefit of credifors, (C)
the appoin1ment of a receiver, trustee in bankruptcy or similar officer for the equity or assets of Customer, and (0) there is an assignment of this
Agreement without the prior \Witten consent of Datamax; and such event(s) is not remedied to the reasonable satisfaction of Datamax within twenty
(20) days after Datamax has sent IIofitten notice to Customer, (E) Customer informs Dalarnax of its intent not to comply with the terms of this
Agreement Termination shall not be Dalarnax's exclusive remedy and no such termination shall adversely affect any claim, right or action which
Datamax may have for clamages or otheMse against Customer regarding any failure of Customer to perform or observe its obiigations to Datamax.
6. Customer Responsibilities. Except as otheMse provided on the Attachments, and in addition to any other obligations of Customer provided in
this Agreement, Customer shall be soleiy responsible for the following:
. The compatibility of Customer's computer hardware, peripherals, device <livers, third party operating syslarns, 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 Customer's hardware, peripherals, operating syslarns, 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 6A2 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 beck-up and disaster
recovery facilities; and
. All data entry and loading of Customer clata and maintaining beck-up or archival copies thereof.
7. Proprietary Rights.
Certain information, product development plans, materials, technical or nontechnical clata, formulas, compilations, programs, devices,
methods, techniques, aawings, processes, or portions thereof supplied by Datamax, including the Software and the documentation thereof,
are trade secrets and confidential information of Datamax 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
Datamax and is treated as confidential. Customer agrees to hold the trade secrets and confidential information disclosed by Datamax in
strictest confidence and not to, directly or indirectly, copy, reproduce, distribute, manufacture, duplicate, reveal, report, publish, disclose,
cause to be disclosed, or otheMse transfer the trade secrets and confidential information disclosed by Datamax 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
B-GT&C.DOC
98-187
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 lem1 of 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 Datamax.
The immediate preceding para!J'llph shall not apply to any such confidential information or document that is in Customer's possession prior to
receipt from Datamax, publicly available through no fault of Cuslamer or independently developed by Cuslamer.
Customer may disclose to Datamax certain non-public information relating to the Software or certain of Cuslamer's 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 Customer's facilities (collectively, the .Cuslamer Proprietary
Information"). All such disclosures which Customer informs Datamax are confidential, including any information obtained in connection with
any inspection of Customer's 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 lrust bestowed on
Datamax by Customer. Datamax acknowledges and agees 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 Ageement, these General Terms
and Conditions and any Attachment
Customer agees 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 Datamax, or any individual who had been employed by Datamax within the
prior one year.
8. Miscellaneous.
. Cuslamer may not assign any of its rights or obligations hereunder except with Datamax's prior 1M'ltten 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 agees in IMiting to be bound by all of the terms and
conditions of this Ageement
. This Ageement 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 Datamax is required to render performance under this Ageernent shall be postponed aulamatically 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 Ageement shall be subject to, governed by, and conslrued in accordance with the laws of the state of Caiifornia without regard to its
rules governing confiicts of law. Cuslamer 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 California.
. The invalidity of any provision of this Ageernent shall not affect the validity and binding effect of any other provision.
. Notices hereunder shall be sent to the adctessees on the face of this Ageement, or to such other adctesses as specified by a notice
complying herewith, and shall be deemed received on the eariier of actual receipt or five days after deposit in the U.S. Mail.
. Headings contained in this Ageernent are for convenience only and are not part of this Ageement and do not in any way interpret, limit or
amplify the scope, extent or intent of this Ageement or any of the provisions hereof.
. In the event of any dispute over the Ageement, the General Terms and Conditions or any of the Attachments, the prevailing party shall be
entititled to reasonable attorneys' fees, costs and expenses.
. Datamax shall carTY Workmens's Compensation, Employer's Liability Insurance and any other insurance which will protect Datamax from
claims in connection with the services to be provided hereunder, and Datamax's obligations under the Ageement 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
98-187
Software Support Attachment
This Software Support Attachment (hereinafter 'Attachmenr) between Datamax Technologies, Inc. (hereinafter 'Datamax') and City of San
Bernardino (hereinafter 'Customer') is an addendum to the Purchase, License and Service AfTeement between Datamax and Customer dated
. Customer afTees to the following terms and conditions which are incorporated in and made part of the Purchase, License and
Service AfTeement.
1. Software Support.
Datamax afTees to provide to Customer the services described below for the software for which software support services are elected on
Schedule A (the Covered Software), in accordance with the following terms and conditions:
A Hours of Service Availability. Payment of the standard Support Fees (as defined in Section 5.A) entitles Customer to Support Service (as
defined in I.B) 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 amenement shall have the same PPM. Customer may request. in \Witing, special extended
perioda of coverage, subject to Datamax's current policies, terms, 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
workarounda; (2) Commercially reasonable efforts to report and test fIXes to defects in the Covered Software that materially and adversely
affect the efficiency or use of the Covered Software as described in Datamax's \Witten specifications; software prolJOITl 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 Datamax will use its best efforts to render Support Services within a reasonable time.
C. Enhancements to Covered Software. Datamax afTees 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 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 license fee.
D. Service limitations. Support Services are contingent upon the proper use of the Covered Software in accordance with Datamax's published
specifications and do not include any of the following: (1) service on Covered Software installed in unsafe or hazardous environments, as
determined 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-Datamax 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 andlor 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 Datamax. 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 hourly or daily rates for Support Services during all travel time
plus all reasonable 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 problern 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.
"D Priority" - Minor problems which Datamax will plan to incorporate into a future software reiease.
2. Custome~s Responsibilities
Customer shall provide reasonable assistance to Datamax in the performance of Support Services, including I'<ithout limitation, providing Datamax
copies of all data and other files reasonably required to verify, reproduce, diagnose and resolve reported probiems. Customer is responsibie for
maintenance and installation of any common carrier equipment or communication services reiated 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
98-l87
providing dial-up access 10 Datamax. Customer is responsible for charges incurred for communication facilities from customers facilities, whether
incurred by Cuslomer or by Datamax sOlVice representatives while perfonning sOlVice on the Covered Software. Customer is responsible for
perfonning 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 perfonning Support SOIVices. Customer a!Tees that Datamax shall have all rights and
licenses of third parties necessary or appropriate for Datamax 10 access the hardware and third party software in the perfonnance 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 10 the Covered Software by other than authorized representatives of Datamax. If in the opinion of Datamax, any
such alteration, addition or modification adversely affects Datamax's ability to render Support SOIVices, Datamax resOlVes the right to terminate
this Attachment immediately upon \Witten notice to Customer.
4. Term and Applicability to Other Attachments with Datamax.
If Cuslomer elects at the same time as it executes a Purchase, License and SOIVice Agreement 10 have this Attachment apply, then (a) the initial
teon shall begin ninety (90) days after the Acceptance Date (the Acceptance Date shall be the date that Covered Software is loaded and passes
Datamax's test procedures at Customers site). If this Attachment first goes inlo 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 sOlVice for upgades and other software added as Covered Software after the initial Acceptance Date shall be coterminous with the
term of service applicable to the Covered Software initially covered. After the initial term, Support SOIVices shall be automatically renewed for
successive one (1) year periods unless either party notifies the other on or before ninety (90) days prior 10 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 SOIVices perfonned
at Datamax's facilities. After the initial term and upon thirty (30) days \Witten notice. Datamax may change the Support Fees to its standard
support fees then in effect If the Support Fees are Increased, Customer may terminate sOlVice as of the effective date of such increase,
upon fifteen (15) days advance \Witten notice to Datamax. If Customer does not terminate sOlVice 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 10 similarly situated
customers.
B. Invoices. Support Fees will begin ninety (90) days after the Acceptance Date. 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. 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 10 suspend or terminate
sOlVice 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 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 ATIACHMENT.
The DISCLAIMER OF WARRANTIES AND LIMITATION OF LIABILITY set forth above produce specific legal rights. Cuslomer 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 Acceptance Date of the Covered Software.
Any action arising out of this Attachment or the Support SOIVices provided hereunder (whether in conlract, 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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98-187
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 \'Kitten 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 Datamax'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 placed 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 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.
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98-187
Professional Services Attachment
This Professional Services Attachment (hereinafter. Attachment ") between Datamax Technologies, Inc. (hereinafter "Datamax") and City of San
Bernardino (hereinafter "Custom..") is an addendum to the Purchase, License and Service A!Teement between Datamax and Customer dated
. Customer a!Tees to the following terms and conditions lMlich are incorporated in and made a part of the Purchase,
License and SOIVice A!Teement I
1. Services
A. The sOlVices to be performed by Datamax under this Attachment may include, but are not limited to: training, consulting, speciai studies,
implementation, installation evaluations, pro!Tamming and documentation, application design and development, systems analysis and
design, conversions and implementation pianning (collectively referred to as the "SOIVices'). SOIVices that are a!Teed 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 Customer, the parties will enter into a mutually a!Teeable Statement
of Work. Each Statement of Work will at a minimum: (i) describe the specific SOIVices that we are to provide to Customer under that
engagement, (ii) set forth the fees that Customer a!Tees to pay for those SOIVices and the manner in lMlich Customer a!Tees to pay those
fees, OiQ set fourth the time frame for perfonnance of those SOIVices, and (iv) incOlporate by reference the terms and conditions of this
Attachment
C. Hours of SOIVice: The Datamax consultant will perfonn SOIVices during the hours of 8:00am and 5:00pm., local time, Monday through
Friday, excluding Datamax hoiidays. Customer may request in ll<iting extended hours beyond the nonnal hours of sOlVices at the prevailing
surcharge rates.
D. Should an Datamax consultant be unabie to perform the SOIVices under this Attachment because of illness, resignation or other causes
beyond Datamax's control, Datamax will attempt to replace such consultant within a reasonable time, but Datamax shall not be liabie for
failure to replace such consultant within the schedule.
E. Customer shall furnish Datamax, at Customer's expense, all technical data and information as may be determined by Datamax to be
necessary for the performance of the SOIVices. Customer shall !1'lnt Datamax access to the Software and the hardware on lMlich the
Software runs at such times and so configured as may be required for the adequate perfonnance of the SOIVices. Customer a!Tees that
Datamax shall have all rights and licenses of third parties necessaIY or appropriate for Datamax to access the hardware and third party
software in the performance of the Services.
2. Charges
A Customer a!Tees to pay fees for the SOIVices as provided on Statement of Work, or if not provided on Slatement of Work, Customer
a!Tees to pay for all SOIVices performed, including reasonable travel, subsistence, and lodging in accordance with Datamax's estabiished
rates and minimums in effect lMlen SOIVices are rendered. Additionally, the Customer a!Tees to reimburse Datamax for any special or
unusual expenses incurred at the Customer's specific request
8. 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 then current schedule of charges and rates and are subject to change by Datamax upon
advance \Witten notice. Quoted charges and rates will be held finn for ninety (90) days from the date of quotation.
J. Control and Supervision
A While present on the Customer's premises and performing SOIVices under this Attachment, Datamax shall confonn to Customer's
reasonable, published policies and procedures disclosed to Datamax and shall abide by Customer's directions lMlich are consistent with the
nature and scope of the SOIVices to be provided.
B. It is the express intention of the parties that Datamax andlor the Datamax consultant is an independent contractor and not an employee,
agent, or partner of Customer. Nothing in this Attachment shall be inlelpreted as creating the relationship of employer and employee
between the Datamax consultant and Customer.
4. Rights in Data
Titie to and ownership of allll<itten material created for Customer under this Attachment, Including, but not limited to, software, magnetic and
optical disks, tapes, listinga and other software documentation (collectively referred to as "Data") first developed or created by Datamax under
98-187
this 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, !J1lnts to Customer a personal, perpetual, non-exclusive, non-transferable and royalty free license to use
such Data furnished to Customer by Datamax under this Attachment All other software and related documentation furnished hereunder shall be
subject to Datamax's then prevailing Purchase, License and Service AlTeement Except and to the extent expressly provided in this Para!J1lllh,
no license or other right is hereby transferred or !J1lnted 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 Datamax consultant(s) provided under this Attachment may perform similar services from time to time for others.
Accordingly, this Attachment shall not prevent Datamax from performing such similar services or restrict Datamax's use of the same
consultan~s) provided under this Attachment Datamax will make fNary 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
6. Term
A This Attachment shall become effective on the date of acceptance by Datamax and shall remain in force until terminated with thirty (30)
days prior 1Mitten 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 mutual1Mitten a!Teement 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.
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 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 AMOUNTS IN EXCESS OF THE SERVICE FEES PAID UNDER THIS ATIACHMENT.
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 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 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 govem.
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98-187
Hardware Mainlenance Attachment
This Hardware Maintenance Attachment (hereinafter "Attachmenr) between Datamax Technologies, Inc. (hereinafter "Datamax") and
City of San Bemardino (hereinafter "Customer") is an addendum to the Purchase, License and Service AITeement between Datamax and Customer dated
. Customer alTees to the following terms and conditions which are incDlporated in and made part of the Purchase, License and Service
Agreement
ii
1. Hardware Mainlenance.
Datamax alTees 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 following 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 All Covered Hardware
included on the Schedule A or subsequently added by amen<rnent shall have the same PPM. Customer may request, in \Witing, special extended
perioda of coverage, subject to Datamax's current policies, terms, conditions, and prices for such service.
B. Eligibility for Service. Hardware is eligible for maintenance under this Attachment provided it is in good operating condition, Datamax's
serviceability requirements are met and manufacturer's serviceability, hardware and site environmental, safety, and health conditions are met
Hardware which is nol in good operating condition, as determined solely by Datamax, may be repaired andlor serviced by Datamax to meet Eligibity
for Service under the prevailing 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 Datamax'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. Datamax shall provide the following services (Maintenance Services) on the Covered Hardware:
1. Provide on-call services to keep the Covered Hardware in good working order during the PPM. Datamax will use its best efforts to provide
Maintenance Services at the Customer's site within an average time of four (4) hours following notification of a Covered Hardware malfunction.
2. Provide suitable parts on an exchange basis for defective or malfunctioning Covered Hardware parts. Such exchanged parts shall have a life
expectancy not less than the majority of the components of the Covered Hardware. Exchanged parts removed from the Covered Hardware shall
become the property of Datamax. Parts Installed in the Covered Hardware will become the property of the Customer provided timely payment of
Maintenance Fees are made by Customer.
3. Provide all parts and labor for a manufacturer's 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 soie opinion, product reiiability or maintenance
would be improved.
4. Provide labor only for manufacturer's required FCO's relating to product performance improvement or to design deficiency correction on Covered
Hardware.
D. Maintenance Limitalions. 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 manufacturer's 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, eiectronic, 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, installation, modification, or reconfiguration) by a party other than
Datamax or a party approved by Datamax, maintenance or failures in Covered Hardware not serviced by Datamax, unauthorized or improper
movement or transportation of Covered Hardware, electrical failure or malfunction exlernal to the Covered Hardware, failure or malfunction of air
conditioning or humidity control, accident, or acts of God.
4. Service, installation, removal, refurbishment, or reconfiguration of Covered Hardware or devices not provided by Datamax.
5. Performance of normal operator functions.
98-187
6. Supplies and accessOfies used in Covered Hardware operation, Of exteriOf painting Of refinishing of Covered Hardware.
7. Requests fOf service for instailation, removal (de-instailation), refurbishment, Of reconfiguration of Covered Hardware.
8. Service for manufacturer's FCO relating to improvement of Covered Hardware relative to speed, capacity, and the like Of any other FCO not covered
in Section 1.C including but not limited to a FCO dated after the PPM Of a FCO issued prior to the PPM but not perfooned.
D. Reservation of Rights
1. Datamax reserves the right to terminate Maintenance Services on Of refuse to service any or ail Covered Hardware, when, as determined solely by
Datamax, a hazard to safety Of 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 Of ail Covered Hardware listed in the
Schedule A, when in Datamax's opinion Covered Hardware cannot be properly maintained on-site due to excessive wear, cbselesence, Covered
Hardware deterioration or unavailability of parts, upon giving thirty (30) days' prior \\fitten notification to Customer.
3. Datamax reserves the right to provide Customer with Maintenance Service on hardware not covered under this Attachment, which wiil be charged to
the Customer at the prevailing rates charged by Datamax and accOfding to the General Terms and Conditions.
4. Datamax 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 shail be responsible for providing appropriate supervision
to ensure that such Maintenance Services meet or exceed Datamax's responsibilities under this Attachment
2. Customer's Responsibilities.
The Customer shail provide prompt notification of Covered Hardware malfunction to Datamax. The Customer shail ensure that Customer representative
is present at ail times while Datamax is servicing the Hardware and ailow Datamax sufficient access to ail Covered Hardware, communications, power.
light, and other necessary facilities. The Customer shail ailow Datamax a reasonable v.<<k space and storage in the same area as the Covered
Hardware,and maintain site conditions within the common environmental range of ail Covered Hardware as specified by manufacturer's and Datamax's
site environmental, safety, and health requirements. The Customer shail provide and assume complete responsibility fOf security and back-up of data
and information recorded on Of 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 A!1eement to have this Attachment apply, then (a) the initial term
shail begin ninety (90) days after the Date Delivered (the Date Delivered shail be the date that Covered Hardware is transferred to the Customer or a
common carrier F.O.B. origin). If this Attachment first goes into effect at any other time, the initial term shail commence on the date of execution or
signing of this Attachment The initial term shail 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 Delivered Date shail be coterminous with the term of service applicable to the Covered Hardware
initially covered. After the initial term, Maintenance Services shail be automatically renewed for successive one (1) year periods unless either party
notifies the other on Of befOfe ninety (90) days priOf to the end of the then existing term.
4 Maintenance Fees
A Definition. Maintenance Fees are the total annual charges designated as such on Schedule A. Maintenance Fees cover Maintenance Services
performed by Datamax. After the initial term and upon thirty (30) days \Witten notice, Datamax 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 fitteen (15) days advance \Witten notice to Datamax. If Customer does not terminate Maintenance Services as just stipulated,
the new Maintenance Fees shail become effective on the date specified in the notice. New Maintenance Fees shail not exceed Datamax's fees
charged to similarly situated customers.
B. Invoices. Maintenance Fees wiil begin ninety (90) days after the Date Delivered. Maintenance Fees fOf renewal terms shail be payable annually in
advance on or before January 1 of each year. One-time charges wiil 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.
Ail amounts payable under this Attachment shall be paid in U.S. Doilars.
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. Custom....s failure to pay any charges when due shall also constitute sufficient cause for Datamax to suspend Of terminate Maintenance
Services under this Attachment
2
98-187
5. Warranty.
A Dalarnax warrants that product or parts thereof repaired or serviced by Dalarnax will be free from defects in material and lWli<manship when used
normally, 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 shall not be liable for delays in deliveries caused by fire, fiood, explosion, accident, materials or energy shortage, labor trouble,
war, sabotage, government law or regulation, or any other cause reasonably beyond its control, but It shall use all 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 INDIRECTLY, 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 PROVIDED IN SECTION 5 A. DATAMAX
SHALL NOT INCUR ANY OTHER OBLIGATIONS OR LIABILITIES AND SHALL NOT BE LIABLE TO CUSTOMER, OR MN OTHER PARTY, FOR
ANY LOSS, DAMAGE, OR EXPENSE OF ANY KIND OR NATURE CAUSED, DIRECTLY OR INDIRECTLY, BY THE MAINTENANCE SERViCES
OR ANY UNFITNESS OR INADEQUACY 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 DATA, OR FOR MN 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 ANY
AMOUNTS IN EXCESS OF THE MAINTENANCE FEES PAID UNDER 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 warranly 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 Delivered Date 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 relales 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 IWitten notification of a Covered Hardware move.
Datarnax will be under no obligation to continue Maintenance Services if Covered Hardware is moved without Datamax's prior \\1'itten approval. At
Datamax's option, Dalarnax may provide to the Customer removal (de-installation) and reinstallation services at the prevailing rates charged by
Datamax and according to the General Terms and Conditions. Datarnax 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 Datamax's discretion and, if performed, will 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 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.
Customer
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98-l87
Schedule A
Support fee and Software for which software support services are elected:
OUANTITY DESCRIPTION UNIT PRICE AMOUNT
56 PMA-VisiFLOW 56 C (07.01.98-0630.99) $313.93 $17,580.00
I PMA-VisiFLOW Project Builder (07.01.98-0630.99) $750.00 $750.00
I PMA-VisiFLOW Barcode Server (07.01.98-06.30.99) $750.00 $750.00
I PMA-VisiFLOW Fax Server (07.01.98-0630.99) $975.00 $975.00
I PMA-VisiFLOW Commit Utility (07.01.98-0630.99) $1,500.00 $1,500.00
2 PMA-VisiFLOW Add. Scan (07.01.98-06.30.99) $750.00 $1,500.00
I PMA-VisiFLOW Form Generator (07.01.98-0630.99) $300.00 $300.00
I PMA-VisiFLOW Import Utility (07.01.98-06.30.99) $525.00 $525.00
I PMA-VisiFLOW Full Text Search (07.01.98-06.30.99) 1,275.00 1,275.00
I OTG Extender DE-OA-M (07.01.98-06.30.99) $100.00 $100.00
I OTG Extender DE-OI-M( 7x24) (07.01.98-0630.99) $4,800.00 $4,800.00
SUBTOTAL $30,055.00
SALES TAX 0
DISCOUNT (One Time Ouly) 0
TOTAL DUE $30,055.00
98-l87
Schedule B
Support fee and Software for which software support services are elected:
QUANTITY DESCRIPTION UNIT PRICE AMOUNT
I Alpha 1000 4/266 with 82 MB RAM, CDROM, $2,600.00 $2,600.00
TLZ-017 TapeDrive, One 2,01 GB lID RZ28M-VA,
and Four 4.3 GB lID's RZ29B-VA (7x24)
I Stand Alone Optical Drive Hitachi 00152-1 $900.00 $900.00
1 A6967-S180/4 Jukebox (7x24) $11,798.00 $11,798.00
4 Fujitsu M3096EX $900.00 $3,600.00
3 Kofax KF-9275-1501 $500.00 $1,500.00
I Kofax KF-7300-120l $250.00 $250.00
1 4040D 40PPM Duplex Scanner $1,500.00 $1,500.00
1 Adrenaline Card for Scanner - KF -850-1000 $225.00 $225.00
SUBTOTAL $22,373.00
SALES TAX 0
DISCOUNT (One Time Ouly) 0
TOTAL DUE $22,373.00