HomeMy WebLinkAbout1997-189
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RESOLUTION NO.
97-189
RESOLUTION OF THE CITY OF SAN BERNARDINO AUTHORIZING A
FISCAL YEAR 97/98 MAINTENANCE SERVICES AGREEMENT WITH ADAPTIVE
INFORMATION SYSTEMS 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 Adaptive Information Systems
for a fiscal year 97/98 maintenance services agreement of
optical imaging hardware and software for a total amount of
$41,467.83 for the City of San Bernardino.
SECTION 2.
The authorization to execute the above
referenced agreement order is rescinded if it is not issued
within sixty (60) days of the passage of this resolution.
I HEREBY CERTIFY that the foregoing resolution was duly
adopted by the Mayor and Common Council of the City of San
joint
Bernardino at a regular meeting thereof, held on the 7th
day of July
, 1997, by the following vote, to wit:
IIII
20 IIII
21 IIII
22 IIII
23 IIII
24 IIII
25 IIII
26 IIII
27 IIII
28 1
.
97-189.
RESOLUTION AUTHORIZING FISCAL 97/98 MAINTENANCE SERVICES
AGREEMENT WITH ADAPTIVE INFORMATION SYSTEMS FOR MAINTENANCE
OF OPTICAL IMAGING HARDWARE AND SOFTWARE.
1
2
3 COUNCIL MEMBERS
4 NEGRETE
5 CURLIN
6 ARIAS
7 OBERHELMAN
8 DEVLIN
AYES NAYS ABSTAIN
- -
X
- -
X
- -
X
- -
- -
X
- -
X
- -
X
- -
ABSENT
X
9 ANDERSON
10 MILLER
11
12
13
i?t~/v.1. ~G/~
<:;ie;( Clerk
14 The foregoing resolution is hereby approved this /~
15 day of
July
, 1997.
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19
~;/!~4~
Tom Mino I Mayor
City of San Bernardino
20 Approved as to form
and legal content:
21
JAMES F. PENMAN
22 City Attorney
23 By: /L-h..=f-i~N~
(;
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2
97-189
SCHEDULE A
SCHEDULE A
City of San Bernardino (07101/97 - 06130/98)
Invoice Renewing Through 6130198 (alpha server through 6130/99)
Annual
Install Warnnly Maln1onl1nce 0Iv List Maintenance PrOl8ted Prorated
SIO Date Exnires Evnir.. Enuiomant sin Prk:o Prk:o Price Months
Hardware
S53 1011/95 6/1/96 6130199 ALPHA SERVER 1000041233 0 1 0.00 2,360.00 2,360.00 12
S53 1011/95 6/1/96 6130/98 ADD'L JUKEBOX DRIVE 0 1 0.00 900.00 900.00 12
553 1011/95 6/1/96 6130/98 A-6967.s18014 JUKEBOX 0 1 0.00 8,000.00 8,000.00 12
576 5/1/97 8/3(J/97 6130/98 Fujitsu Scanner M3096EX 0 1 0.00 900.00 750.00 10
576 5/1/97 8/3(J/97 6130/98 Korax KF-73O().1201 0 1 0.00 250.00 208.33 10
553 1011/95 6/1/96 6130/98 Fujitsu Scanner M3096EX 0 3 0.00 2,700.00 2,700.00 12
553 1011/95 6/1/96 6130/98 Kofax KF-9275-1501 0 3 0.00 1,500.00 1,500.00 12
Special Discount for 1 year on 3 Fujitsu 0.00 0.00 0.00
Scanner & 3 Kofax Cards 1 0.00 -4,200.00 -4,200.00 12
0.00 0.00 0.00
0.00 0.00 0.00
24 x 7 Coverage 4 hour on-site only on 0.00 0.00 0.00
ALPHA SERVER 1000 041233 0.00 0.00 0.00
A-6967.s18014 JUKEBOX 0.00 0.00 0.00
0.00 0.00 0.00
0.00 0.00 0.00
0.00 0.00 0.00
0.00 0.00 0.00
0.00 0.00 0.00
0.00 0.00 0.00
0.00 0.00 0.00
0.00 0.00 0.00
0.00 0.00 0.00
0.00 0.00 0.00
0.00 0.00 0.00
0.00 0.00 0.00
0.00 0.00 0.00
0.00 0.00 0.00
0.00 0.00 0.00
0.00 0.00 0.00
0.00 0.00 0.00
0.00 0.00 0.00
0.00 0.00 0.00
0.00 0.00 0.00
0.00 0.00 0.00
0.00 0.00 0.00
0.00 0.00 0.00
0.00 0.00 0.00
0.00 0.00 0.00
0.00 0.00 0.00
0.00 0.00 0.00
0.00 0.00 0.00
0.00 0.00 0.00
TOTAL HAROWARE MAINTENANCE 0.00 12,410.00 12,218.33
Software
553 1011/95 6/1/96 6130/98 VISIFLOW 2.0 35-CONCURRENT WF 0 35 0.00 12,900.00 12,900.00 12
553 1011/95 6/1/96 6130/98 VISIFLOW COMMIT (lARGE OW) 0 1 0.00 1,500.00 1,500.00 12
S53 1011/95 6/1/96 6130198 VISIFLOW APPliCATION BUILDER 0 1 0.00 750.00 750.00 12
S53 1011/95 8/1/96 6130/98 VISIFLOW V2.0 FORM GENERATOR 0 1 0.00 300.00 300.00 12
553 1011/95 8/1/96 6130198 VISIFLOW JOB SEP. & BARCOOE 0 1 0.00 600.00 600.00 12
553 1011/95 8/1/96 6130/98 SOL SERVER FOR NT SINGLE SERV 0 3 0.00 3,155.00 3,155.00 12
553 1011/95 8/1/96 6130/98 SOL SERVER V6.0 NT 40 CLIENT 0 40 0.00 1,000.00 1,000.00 12
553 1011/95 8/1/96 6130198 OTG DISK EXTENDER JUKEBOX 0 1 0.00 4,800.00 4,800.00 12
S53 1011/95 8/1/96 6130198 V1SIFLOW FULL TEXT SEARCH 0 1 0.00 1.275.00 1,275.00 12
0 0 0.00
576 5/1/97 8/3(J/97 6130198 VisiFlow WF Concurrent 0 1 0.00 250.00 208.33 10
576 5/1/97 8/3(J/97 6130198 VlSiFlow Additional Scan Software 0 1 0.00 750.00 625.00 10
576 5/1/97 8/3(J/97 6130198 Windows NT 3.51 0 20 0.00 106.00 88.33 10
576 5/1/97 8/3(J/97 6130/98 VisiFiow Forms Recognition Import Utility 0 1 0.00 S2S.OO 437.50 10
576 5/1/97 8/3(J/97 6130/98 OCR for Forms Full Processing 0 1 0.00 1,710.00 1,425.00 10
576 5/1/97 8/3(J/97 6130/98 OCR Hand Print Recognition Engine Interfac 0 1 0.00 720.00 600.00 10
576 5/1/97 8/3(J/97 6130198 OCR ODec Driver 0 1 0.00 18.00 15.00 10
605 11/1/96 2/1/97 6130198 VisiFlow WF Concurrent 0 3 0.00 750.00 1,000.00 16
0.00 0.00 0.00
24 x 7 Coverage 4 hour phone support 0.00 0.00 0.00
only on 0.00 0.00 0.00
OTG DISK EXTENDER JUKEBOX 0.00 0.00 0.00
0.00 0.00 0.00
TOTAL SOFTWARE SUPPORT 0.00 31,109.00 30,679.17
TOTAL 0.00 43.519.00 42.897.50
Discount One Time oniV\ 0.00 1,429.67 1,429.67 12
TOTAL RENEWAL 0.00 42,089.33 41,467.83
customer
Page 1
Citysb.xls
97-189
Purchase, License and Service Agreement
This Purchase, License and Service Agreement is made and entered into by and between Adaptive Information Systems, Inc. ("Adaptive"), located at 26001 Pala,
Mission Viejo, CA, and City of San Bernardino,_ (hereinafter 'Customer")
Located al:_300 North '0' Street,_ City_San Bernardino, State _CA. Zip 92418.
Adaptive and Customer hereby agree as follows:
This 'Agreemenr consists of this signature page, the General Terms and Conditions, those Allachments 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 Adaptive shall be governed by the terms and conditions referenced herein and shall
become effective upon acceptance by an authorized Adaptive employee.
Attachments
Custome(s Initials
.
Software Support Allachment (together with Schedule A)
-1Yv\
.
Hardware Maintenance Attachment (together with Schedule A)
--rVr-1.
This Agreement constitutes the entire agreement between the parties on the subject hereof and supersedes all prior or contemporaneous agreements, negotiations,
representations and proposals, \/Killen 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
Custome(s convenience only. Acknowledgment of a Customers Purchase Order by Adaptive 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 \/Kiting executed by an authorized Adaptive 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.
Adaptive Information Systems, Inc.
By t~~~il ~
/
(Type or print name): CHi'lrrOI'IIEif r IIILlEII/?URt-
Title: Dit<IiL- rptr ,pI" ~PERA-r/OAlf
Date J L/.f,/E /I. /99 '7
,
Customer
~YI/
By ~i. /!/C~
(Type or print name): -rOIY! MINDI1....
Title /1.1 It'! 0 fl-
Date 7-/0 Y7
,
COVER-CSB
97-189
General T enns and Conditions
1. General. These General Tenns 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 HardlNare 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 Tenns and Conditions and any other Allachment or Schedule, the General Tenns 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,
Adaptive shall not be liable for any loss or damage claimed to have resulted from the use, operation or perfonnance 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 Adaptive be
liable to Customer for (a) any special, indirect, incidental or consequential damages, even if Adaptive 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 Adaptive
representative shall be binding on Adaptive unless it is expressly included in this Agreement or the appropriate Allachment.
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 (HI,%) 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. Tennination. Notwithstanding any other term or condition of this Agreement or Attachments and Schedules allached hereto, Adaptive shall have
the right to terminate this Agreement upon the occurrence of any of the following events: (A) Customer fails to perform or observe any of its
obligations to Adaptive under this Agreement, including, but not limited to, the timely payment of any sums due Adaptive, (B) Customer admits in
"",iting 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 appoinbnent 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 "",illen consent of Adaptive; and such event(s) is not remedied to the reasonable satisfaction of Adaptive within twenty
(20) days after Adaptive has sent "",illen notice to Customer, (E) Customer informs Adaptive of its intent not to comply with the terms of this
Agreement. Termination shall not be Adaptive's exclusive remedy and no such termination shall adversely affect any claim, right or action which
Adaptive may have for damages or otherwise against Customer regarding any failure of Customer to perform or observe its obligations to Adaptive.
6.Customer Responsibilities. Except as otherwise provided on the Allachments, 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 installation, testing, use and operation of the Software and Hardware;
. The maintenance and support of Customers hardware, peripherals, operating systems, third party software, Software, and Hardware;
. The results obtained from use and operation of the Software and Hardware, provided, however, nothing contained in this subsection shall
affect the warranty contained in Section 6.A.2 of the License Allachment;
. 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 Adaptive;
. 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.
6. Proprietary Rights.
Certain information, product development plans, materials, technical or nontechnical data, formulas, compilations, programs, devices,
methods, techniques, <tawings, processes, or portions thereof supplied by Adaptive, including the Software and the documentation thereof,
are trade secrets and confidential information of Adaptive 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
Adaptive and is treated as confidential. Customer agrees to hold the trade secrets and confidential information disclosed by Adaptive in
strictest confidence and not to, directly or indirectly, copy, reproduce, distribute, manufacture, duplicate, reveal, report, publish, disclose,
cause to be disclosed, or otherwise transfer the trade secrets and confidential information disclosed by Adaptive to any third party (except
those third parties in a confidential relationship to Customer) or utilize the trade secrets and confidential information disclosed by Adaptive for
any purpose whatsoever other than as expressly contemplated by this Agreement or any Allachment. 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
B-GT&C.DOC
97-189
information, this obligation shall continue for the teon of the applicable Attachment and for a period of five years thereafter. Customer
acknowledges that use or disclosure of Adaptive's trade secrets or confidential infoonation would cause irreparable harm to Adaptive.
The immediate preceding paragraph shall not apply to any such confidential infoonation or document that is in Customer's possession prior to
receipt from Adaptive, publicly available through no fault of Customer or independently developed by Customer.
Customer may disclose to Adaptive certain non-public infoonation relating to the Software or certain of Customer's ideas. foonulae,
processes, research, development, third party software or software licenses, discoveries, marketing plans, customer lists and other
infoonation relating to any of the foregoing, or may peonit Adaptive to inspect Customer's facilities (collectively, the "Customer Proprietary
Information"). All such disclosures wIlich Customer infoons Adaptive 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
Adaptive unless they become public knowledge through no fault of Adaptive. Adaptive will not disclose to others, use for its own benefit,
copy, or make notes of any Customer Proprietary Infoonation, such conduct will constitute a breach of the confidence and trust bestowed on
Adaptive by Customer. Adaptive acknowledges and agrees that disclosure or unauthorized use of the Customer Proprietary Information
disclosed could cause irreparable haon to Customer. This Section 7 shall servive the termination of the Agreement, these General Teons
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 Adaptive, or any individual wIlo had been employed by Adaptive within the
prior one year.
7. Miscellaneous.
. Customer may not assign any of its rights or obligations hereunder except with Adaptive's prior ",itten 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 entily agrees in ",iting to be bound by all of the teons 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 peonitted
assigns. Dates or times by wIlich Adaptive is required to render perfoonance under this Agreement shall be postponed automatically to the
extent that Adaptive is prevented from meeting them by any cause beyond its reasonable control.
. All rights and remedies of the parties hereto are separate and cumulative. The waiver or failure of either party to exercise in any respect any
right or remedy provided herein shall not be deemed a waiver of any further right or remedy hereunder.
. This Agreement shall be subject to, governed by, and construed in accordance with the laws of the state of California without regard to its
rules governing 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 Counly of Orange in the State of California.
. The invalidity of any provision of this Agreement shall not aNect 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 Teons and Conditions or any of the Attachments, the prevailing party shall be
entititled to reasonable attorneys' fees, costs and expenses.
. Adeptive shall carry Workmens's Compensation, Employer's Liability Insurance and any other insurance wIlich will protect Adaptive from
claims in connection with the services to be provided hereunder, and Adaptive'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 foon prescribed by and in the
amounts required by the state or states wIlere services are being perfooned under the Agreement and any Attachments.
2
B-GT&C.DOC
97-189
Software Support Attachment
This Software Support Attachment (hereinafter 'Attachmenr) between Adaptive Infonnation Systems, Inc. (hereinafter 'Adaptive') and
City of San Bernardino, (hereinafter 'Customer') is an addendum to the Purchase, License and Service Agreement between Adaptive and Customer
dated . Customer agrees to the following tenns and conditions v.11ich are incorporated in and made part of the Purchase, License
and Service AiTeement.
1. Software Support.
Adaptive aiTees to provida to Customer the services described below for the software for v.11ich software support services are elected 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 5.A) entitles Customer to Support Service (as
defined in 1.B) during the Principal Period of Maintenance (PPM). PPM is between the hours of 7:00 a.m. and 5:00 p.m. Pacific time, Monday
through Friday, excluding Adaptive holidays (Adaptive's Nannal Business Hours) v.11ile 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 ""iting, special extended
periods of coverage, subject to Adaptive's current policies, tenns, conditions, and prices for such service.
B. Scope of Service. Adaptive 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 Adaptive'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 (J(
workarounds; (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 Adaptive's ""itten specifications; software program fixes will be provided
for the current release only; and (3) delivery andlor installation of all software revisions provided by vendor that Adaptive deems necessary
with respect to the Covered Software; and Adaptive will use its best efforts to render Support Services within a reasonable time.
C. Enhancements to Covered Software. Adaptive agrees to deliver to Customer without charge any new versions of the Covered Software
that contain only error corrections and minor enhancements. Adaptive 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. Adaptive shall have the sole discretion to
detennine v.11ether an updated or enhanced version of the Covered Software will be subject to an additional license fee.
O. Service Limitations. Support Services are contingent upon the proper use of the Covered Software in accordance with Adaptive'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 Adaptive; (2) service resulting from accident, neglect, alterations, improper use, or misuse of the Covered Software as
necessitated by adjustments and changes attempted by non-Adaptive personnel; (3) service to a version other than the current (J( 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 Adaptive; and (7) service request due to problems that are not
the direct result of Covered Software licensed by Adaptive. In the event that Support Services are provided at a location other than
Adaptive's facilities, then Customer shall be charged Adaptive's then current hourly or daily rates for Support Services during all travel time
plus all reasonable travel and lodging expenses of Adaptive and its representatives. The time actually spent providing Support Services at
such other location will be included in the Support Fees. Notwithstanding anything to the contrary contained in this Attachment, Adaptive shall
use commercially reasonable efforts to respond to problems set forth below.
Priority Codes: The Codes below depict the priority level assigned by Adaptive 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 v.11ich 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" - Would likes and minor problems v.11ich Adaptive will plan to incorporate into a future software release.
2. Custome~s Responsibilities
Customer shall provide reasonable assistance to Adaptive in the perfonnance of Support Services, including without limitation, providing Adaptive
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 fumished by
O.SWSUP.OOC
97-189
Adaptive, including without limitation, the necessary modem and remote access software reasonably specified by Adaptive for the purposes of
providing dial-up access to Adaptive. Customer is responsible for charges incurred for communication facilities from Customer's facilities, whether
incurred by Customer or by Adaptive service representatives while perfonning service on the Covered Software. Customer is responsible for
performing all system software backups and restoration of data. Customer shall notify Adaptive of any Covered Software failure and shall allow
Adaptive full and free access to the Covered Software for perfonnlng Support Services. Customer agrees that Adaptive shall have all rights and
licenses of third parties necessary or appropriate for Adaptive to access the hardware and third party software in the performance of the Support
Services.
3. Alterations and Additions.
Adaptive 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 Adaptive. If in the opinion of Adaptive, any
such alteration, addition or modification adversely affects Adaptive's ability to render Support Services, Adaptive reserves the right to tenninate this
Attachment immediately upon \>fillen notice to Customer.
4. Tenn and Applicability to Other Allachments with Adaptive.
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
tenn shall begin ninety (90) days after the Acceptance Date (the Acceptance Date shall be the date that Covered Software is loaded and passes
Adaptive's test procedures at Customers site). If this Attachment first goes into effect at any other time, the initial tenn shall commence on the
date of execution or signing of this Attachment. The initial tenn shall tenninate on December 31 of the year in which the initial tenn commenced.
The tenn of service for upgrades and other software added as Covered Software after the initial Acceptance Date shall be cotenninous with the
tenn of service applicabie 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 tenn.
5. Support Fees
A. Definition. 'Support Fees' are the total annual charges designated as such on Schedule A. Support Fees cover Support Services performed
at Adaptive's facilities. After the initial tenn and upon thirty (30) days \>fitten notice, Adaptive may change the Support Fees to its standard
support fees then in effect. If the Support Fees are increased, Customer may tenninate service as of the effective date of such increase,
upon fifteen (15) days advance \>fitten notice to Adaptive. If Customer does not terminate service as just stipulated, the new Support Fees
shall become elfective on the date specified in the notice. New Support Fees shall not exceed Adaptive's fees charged to similarly situated
customers.
8. Invoices. Support Fees will begin ninety (90) days after the Acceptance Date. Support Fees for renewal tenns 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 daemed to have defaulted in payment if it has not paid Adaptive 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 Adaptive to suspend or tenninate
service under this Attachment.
6. DISCLAIMER OF WARRANTY AND LIMITATION OF LIABILITY
ADAPTIVE 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.
ADAPTIVE 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 8ASED ON STRICT OR ABSOLUTE TORT LIABILITY, NEGLIGENCE, CONTRACT, OR OTHERWISE, EVEN IF
ADAPTIVE KNEW OR SHOULD HAVE KNOWN OF THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT SHALL ADAPTIVE
BE LIABLE FOR MORE THAN THE SOFTWARE SUPPORT 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 warranty and liability rights differently from those set forth
above. In such states the minimum required warranty and liability tenns shall apply and any required implied warranty shall be limited in
duration to ninety (90) days after the Acceptance Date of the Covered Software.b
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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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 Adaptive. Adaptive shall have the right to alter the type and schedule of maintenance provided to the reiocated
Covered Software. Customer shall give Adaptive at least thirty (30) days advance v.ritten notice specifying the new location priO( to any
movement.
B. Other Services. Any services rendered by Adaptive that are not included in the scope of Support Services, if requested by Customer,
will be perfonned at Adaptive's discretion and, if perfonned, 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 aITeement
mutually aITeeable to the parties which shall include provisions protecting the confidentiality and non.disclosure of the Source Code and shall
provide for the terms regarding rei ease 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.
Adaptive Information Systems, inc.
By~1 /:di./uy
(Type or print name): CHRISTP./HE'1f X JlltLFN8u.e6--
Tille: D/~Fc.rM &>F tP;'U/f17w.f
Date ,)UNJ;, /( /997
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By /~~
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(Type or print name): 70m fVlINO!2-
Title: MA4 OK
Date 7-/0 ~ 9"/
,
3
D.SWSUP.DOC
97-189
Hardware Maintenance Attachment
This Hardware Maintenance Attachment (hereinafter 'Allachmenr) between Adaptive Infonnation Systems, Inc. (hereinafter 'Adaptivej and
City of San Bernardino,(hereinafter 'Customer') is an addendum to the Purchase, License and Service Agreement between Adaptive 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. Hardware Maintenance.
Adaptive agrees to provide to Customer the services described below for the hardware for which hardware maintenance services are elected on
Schedule A (the Covered Hardware), in accordance with the following tenns 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.G) during the Principal Period of Maintenance (PPM). PPM is between the hours of 7:00 a.m. and 5:00 p.m. Pacific time,
Monday through Friday, exciuding Adaptive holidays (Adaptive's Nonnal Business Hours) while this Attachment is in effect. All Covered Hardware
included on the Schedule A or subsequently added by amendment shall have the same PPM. Customer may request, in IMiting, special extended
periods of coverage, subject to Adaptive's current policies, terms, conditions, and prices for such service.
B. Eligibility for Service. Hardware is eligible for maintenance under this Allachment provided it is in good operating condition, Adaptive's
serviceability requirements are met and manufacturer's serviceability, hardware and site environmental, safety, and heaith conditions are met.
Hardware which is not in good operating condition, as detennined solely by Adaptive, may be repaired and'or serviced by Adaptive to meet Eligibity
for Service under the prevailing rates charged by Adaptive and according to the General Tenns and Conditions. In the event that any Covered
Hardware cannot be restored to good operating condition or does not meet Adaptive's serviceability requirements as detennined solely by Adaptive,
this Attachment may be tenninated or the Covered Hardware may be removed from the Schedule A and not accepted for Maintenance Services
under this Attachment.
C. Scope of Service. Adaptive 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. Adaptive 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 preventive maintenance in accordance with the manufacturer's specifications on the Covered Hardware.
3. 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 Adaptive. Parts installed in the Covered Hardware will become the property of the Customer provided timely payment of
Maintenance Fees are made by Customer.
4. 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 Adaptive's sole opinion, product reliability or maintenance
would be improved.
5. Provide labor only for manufacturer's required FCO's relating to product perfonnance 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. 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 alteralion, use, or interconnection of Covered Hardware by
electrical, electronic, or mechanical means with non-compatible Covered Hardware or software or with Covered Hardware or softwere not provided
by Adaptive, unauthorized service (including, but not limited to, repair, adjustment, installation, modification, or reconfiguration) by a party other than
Adaptive or a party approved by Adaptive, maintenance or failures in Covered Hardware not serviced by Adaptive, unauthorized or improper
movement or lransportation 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.
3. Service, installation, removal, refurbishment, or reconfiguration of Covered Hardware or devices not provided by Adaptive.
4. Performance of nonnal operator functions.
G.HWSUP .DOC
97-189
5. Supplies and access()(ies used in Covered Hardware operation, or exterior painting ()( refinishing of Covered Hardware.
6. Requests f()( service for installation, removal (de-installation), refurbishment. or reconfiguration of Covered Hardware.
7. Service f()( manufacturer's FCD relating to improvement of Covered Hardware relative to speed, capacity, and the like or any other FCD not covered
in Section 1.C including but not limited to a FCD dated after the PPM ()( a FCD issued prior to the PPM but not performed.
D_ Reservation of Rights
1. Adaptive reserves the right to terminate Maintenance Services on ()( refuse to service any ()( all Covered Hardware, when, as determined solely by
Adaptive, a hazard to safety ()( health exists at the Covered Hardware site location.
2. Adaptive reserves the right, after the initial term of this Attachment ()( anytime thereafter, to terminate any or all Covered Hardware listed in the
Schedule A, when in Adaptive's opinion Covered Hardware cannot be properly maintained on.site due to excessive wear, cbselesence, Covered
Hardware deterioration ()( unavailability of parts, upon giving thirty (30) days' pri()( ""itten notification to Customer.
3. Adaptive reserves the right to provide Customer,.;th Maintenance Service on hardware not covered under this Attachment, which ";11 be charged to
the Customer at the prevailing rates charged by Adaptive and acc()(ding to the General Terms and Conditions.
4. Adaptive reserves the right to determine assignment of its employees.
5. Adaptive reserves the right to subcontract Maintenance Services on Covered Hardware ,.;thout additional charge to Customer, when in Adaptive's
sole opinion such subcontracting is necessary to provide Maintenance Services. Adaptive shall be responsible for providing appropriate supervision
to ensure that such Maintenance Services meet or exceed Adaptive's responsibilities under this Attachment
2. Customer's Responsibilities.
The Customer shall provide prompt notification of Covered Hardware malfunction to Adaptive. The Customer shall ensure that Customer representative
is present at all times while Adaptive is servicing the Hardware and allow Adaptive sufficient access to all Covered Hardware, communications, power,
light, and other necessary facilities. The Customer shall allow Adaptive a reasonable work space and storage in the same area as the Covered
HardlNare,and maintain site conditions within the common environmental range of all Covered Hardware as specified by manufacturer's and Adaptive's
site environmental, safety, 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 HardlNare as Customer considers necessary.
3. Term and Applicability to Other Attachments with Adaptive.
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 Delivered shall be the date that Covered Hardware is transferred to the Customer ()( a
common carrier, F.O.B. origin). If this Allachment first goes into effect at any other time, the initial term shall commence on the date of execution ()(
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 f()( other
hardware added as Covered Hardware after the initial Delivered Date shall be coterminous ,.;th 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
A. Definition. Maintenance Fees are the total annual charges designated as such on Schedule A. Maintenance Fees cover Maintenance Services
performed by Adaptive. After the initial term and upon thirty (30) days ""illen notice, Adaptive may change the Maintenance Fees to its standard
maintenance fees then in effect. If the Maintenance Fees are increased, Customer may tenninate Maintenance Services as of the effective date of
such increase, upon fifteen (15) days advance ""illen notice to Adaptive. 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 Adaptive's fees
charged to similarly 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 ";11 be invoiced as incurred. Partial year invoicing ";11 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,.;thin 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 Adaptive all amounts due ,.;thin thirty (30) days after receipt of
invoice. Customer's failure to pay any charges when due shall also constitute sufficient cause for Adaptive to suspend ()( terminate Maintenance
Services under this Attachment.
5. Warranty.
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G-HWSUP.DOC
'97-189
A Adaptive warrants that product or parts thereof repaired or serviced by Adaptive will be free from defects in material and workmanship 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. Adaptive shall not be liable lor delays in deliveries caused by fire, tlood, explosion, accident, materials or energy shortage, labor trouble,
war, sabotage, government iaw 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
ADAPTIVE 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. ADAPTIVE SHALL NOT INCUR ANY OTHER OBLIGATIONS OR LIABiLITIES AND SHALL NOT BE LIABLE TO
CUSTOMER, OR ANY OTHER PARTY, FOR ANYLOSS, 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 ANY OTHER DAMAGES OR CLAiMS, WHETHER BASED ON STRICT OR ABSOLUTE TORT
LIABILITY, NEGLIGENCE, CONTRACT, OR OTHERWISE, EVEN IF ADAPTIVE KNEW OR SHOULD HAVE KNOWN OF THE
POSSIBILITY OF SUCH DAMAGES, IN NO EVENT SHALL ADAPTIVE BE LIABLE FOR ANY AMOUNTS IN EXCESS OF THE
MAINTENANCE FEES PAID UNDER THIS ATTACHMENT.
The DISCLAIMER OF WARRANTIES AND LIMITATION OF LIABILITY set lorth 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 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 relates first becomes known (or reasonably should have become known).
6. Supplemental Maintenance Service
A. Movement of Covered Hardware. The Customer will provide to Adaptive thirty (30) days' prior mitten notification 01 a Covered Hardware move.
Adaptive will be under no obligation to continue Maintenance Services if Covered Hardware is moved without Adaptive's prior mitten approval. At
Adaptive's option, Adaptive may provide to the Customer removal (de-installation) and reinstallation services at the prevailing rates charged by
Adaptive and according to the General Terms and Conditions. Adaptive reserves the right to discontinue Maintenance Services under this
Allachment for Covered Hardware relocated outside the service area of an Adaptive office.
B. Other Servlces_ Any services rendered by Adaptive that are not included in the scope of Maintenance Services, if requested by Customer, will be
performed at Adaptive's discretion and, if performed, will be charged to Customer at the prevailing rates charged by Adaptive and according to the
General Terms and Conditions.
9. General Terms and Conditions.
The parties acknowledge that the General T enns and Conditions contain provisions that govern the entire relationship among the parties. Accordingly, in
the event of any conmct between the General Terms and Conditions and this Attachment, the General Terms and Conditions shall control and govern.
:;=~2~
[Type or print name):C 1</ /".R' ~ EAlG{J~J-
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By: / 'f'777-1..
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[Type or print name): 7DfYl fVJI/lfDt2..
Title:
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Date:JU4IE I~ 1')?'7
Date:
3
G.HWSUP .DOC