HomeMy WebLinkAbout1996-214
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96-214
RESOLUTION NO.
RESOLUTION OF THE CITY OF SAN BERNARDINO AUTHORIZING A
3 FISCAL YEAR 96/97 MAINTENANCE SERVICES AGREEMENT WITH ADAPTIVE
INFORMATION SYSTEMS FOR MAINTENANCE OF IMAGING EQUIPMENT AND
4 SOFTWARE FOR THE CITY OF SAN BERNARDINO.
5 BE IT RESOLVED BY THE MAYOR AND COMMON COUNCIL OF THE CITY
OF SAN BERNARDINO AS FOLLOWS:
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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 Adaptive Information Systems
for a fiscal year 96/97 maintenance services agreement of
optical imaging hardware and software for a total amount of
$37,265.00, 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referenced agreement order is rescinded if it is not issued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
15th
Bernardino at a regular
meeting thereof, held on the
day of July
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, 1996, by the following vote, to wit:
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RES 96-214
RESOLUTION AUTHORIZING FISCAL 96/97 MAINTENANCE SERVICES.
'~GREE~ENT WITH ADAPTIVE INFORMATION SYSTEMS FOR MAINTENANCE
OF OPTICAL. IMAGING HARDWARE AND SOFTWARE.
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Counc11members AYES
NEGRETE X
CURLIN X
ARIAS X
OBERHELMAN X
DEVLIN X
ANDERSON X
MILLER
The foregoing resolution
July
day of
, 1996.
Approved as to form
and legal content:
JAMES F. PENMAN
City Attorney
()
//'" ,
U~
NAYS
ABSTAIN
ABSENT
X
~~r~
is n~reby d~proved this ;I~
~)h '
. a" '1 1;((#1:1...
Tom :1.Lnor, Mayor
City of San Bernardino
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}lES 96-2l4
96-214
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Agreement No
Hardware Support Agreement
This Hardware Support Agreement (hereinafter "Support Agreemcnn is betw"een Adaptive Information Systems, lne (hereinafter "Distributor") and
[Customer Name! (hereinafter "Cuslomer")
Distributor agrees to provide to Customer the services described below for the hardware for which hardware support services are elected on Schedule A
(the "Covered Hardware"), in accordance with the following terms and conditions:
PLEASE READ THE FOLLOWING TERMS AND CONDITIONS AND THE TERMS AND CONDITIONS. THEY ARE IMPORTANT AND WILL FORM THE
BINDING CONTRACT BETWEEN ADAPTIVE INFORMATION SYSTEMS AND CUSTOMER.
TERM. This Agreement shall not be effective until signed by the Customer and by an authorized officer of AIS. The initial term shall terminate on
December 31 at the year in which the initial term commenced. After the initial term, Support Services shall be automatically renewed for successive
one (1) year periods unless either party notifies the other on or before ninety (90) days prior to the end of the then existing term
2. ELIGIBILITY FOR SERVICE. Equipment listed in the Schedule A (hereinafter called "Equipment") is eligible for service under this Agreement
provided it is in good operating condition, AIS's serviceability requirements are met. and manufacturer's serviceability, equipment and site
environmental, safety, and health conditions are met. Equipment which is not in good operating condition, as determined solely by AIS, may be
repaired and/or serviced by A1S prior to Service Commencement under this Agreement 10 bring it to god operating condition under the then prevailing
AIS Billable Call Maintenance Service rate and pursuant to A1S's standard terms and conditions for Maintenance Service. In the event that any
Equipment listed on the Schedule A cannot be restored to good operating condition or does not meet A1S's serviceability requirements as determined
solely by AIS, this Agreement may be terminated or the equipment may be excluded from the Schedule A and not accepted for service under this
Agreement at A1S's sole option. Maintenance Services are available only for Equipment having a valid AIS serial number
3. SERVICE RESPONSIBILITIES OF AIS, AIS shall provide the following Covered Maintenance Service on the Equipment
a. Provide on-call Covered Maintenance Remedial Service to keep the Equipment in good working order during the Principal Period of Maintenance
(hereinafter called "PPM") listed in the Schedule A, from 8:00 a.m. to 6:00 p,m., local time, Monday through Friday (excluding A1S's regular
holidays specified in AIS's standard holiday schedule as hereafter adapted from time to time) AIS will use its best efforts to provide on-call
Covered Maintenance Remedial Service at the Customer's site within an average time of four (4) hours following notification or an Equipment
malfunction.
b. Provide Preventive Maintenance on the date and time listed on the Service Schedule (excluding AIS's regular holidays as set forth above)
c. Provide suitable parts on an exchange basis for defective or malfunctioning Equipment parts_ Such exchanged parts shall have a life expectancy
not less than the majority of the piece of Equipment. Exchanged parts removed from the Equipment shall become the property 01 AIS Parts
installed in the Equipment will become the property of the Customer provided timely payment of AIS's charges for maintenance service is made
by Customer.
d Provide all parts and labor for a manufacturer's Mandatory Field Change Order ("FCO") pertaining to Equipment, when mandated by
Manufacturer for product safety, personal injury, or property damage reasons or when. in A1S's sole opinion. product reliability or maintenance
would be improved.
e. Provide labor only lor Manufacturer's Required (Foo's relating to product performance improvement or to design dericiency correction on
covered Equipment
4 MAINTENANCE NOT INCLUDED. Covered Maintenance shall not include the following
a. Requests for service after the PPM listed in the Service Schedule or outside geographic areas covered by the Service Schedule
b 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 Equipment, including unauthorized alteration, use. or interconnection of Equipment by electrical,
electronic. or mechanical means with non-compatible Equipment or software or with equipment or software not provided by AIS. unauthorized
service (including, but not limited to, repair, adjustment, installation, modiflcation, or reconfiguration) by a party other than AIS or a party approved
by AIS, maintenance or failures in equipment not serviced by AIS, unauthorized or improper movement or transportation of Equipment, electrical
failure or malfunction external to the Equipment, failure or malfunction of air conditioning or humidity control. accident. or acts of God
c Service, installation, removal, refurbishment. or reconfiguration of equipment or devices not provided by AIS
d. Performance 01 normal operator functions.
e. Supplies and accessories used in Equipment operation, or exterior painting or refinishing of Equipment
f. Requests lor service for installation, removal (de-installation). refurbishment, or reconfiguration of Equipment
g Service for Manufacturer's Improvement Field Change Order ("FCQ") relating to improvement of hardware product relative to speed. capacity,
and the like or any other FCO not covered in Section 3(d) or 3(e) above. including but not limited to an FCO dated after the PPM or an FCO
issued prior to the PPM but not performed.
THE CUSTOMER ACKNOWLEDGES THAT HE HAS READ AND UNOERSTANDS ALL OF THE TERMS AND CONDITIONS SET FORTH
ABOVE,lNClUDING THE liMITED WARRANTY, THE REMEDY, THE DISCLAIMER OF WARRANTIES AND LIMITATION OF LIABILITY AND
REMEDY, AND THE ENTIRE AGREEMENT SECTIONS. AND ACCEPTS AND AGREES TO BE BOUND BY ALL OF THOSE TERMS AND
CONDITIONS.
5 RESERVATION OF RIGHTS.
a AIS reserves the right to terminale se/VlGe on or refuse to service any or all Equipment, when, as determined solely by AIS, a hazard to safety or
health exists at the Equipment site location.
b. AIS reserves the right, after the initial term of this Agreement or anytime thereafter. to terminate any or all Equipment listed in the Schedule A,
when in AI$'s opinion Equipment cannot be properly maintained on-site due to excessive wear, EqUIpment deterioration Of unavailability of parts.
upon giving thirty (30) days' prior written notification to Customer
c AIS reserves the right to provide Customer with Maintenance Service on equipment not covered under this Agreement or excluded from Covered
Maintenance. which will be charged to the Customer at t~.e then prevailing AIS Billable Call Maintenance ServIce rates and standard terms and
conditions In the event Billable Call Maintenance Servlc~ is provided on Equipment for service after the PPM. the Customer will be charged for
the part(.s) or materials used'
-
fES 96-214
dAIS resorves the right to determine assignment of its employees.
e. AIS reserves the right to subcontract service and maintenance at Equipment without additional charge to Customer, when in AIS's sole opinion
such subcontracting is necessary 10 provide service. AIS shall be responsible for providing appropriate supervision to ensure that such service
and maintenance meets or exceeds AIS's responsibilities under this Agreement
J. RESPONSIBILITY OF CUSTOMER. The Customer shall:
a. Provide immediate notification of Equipment malfunction to AIS
b. Notify AIS promptly if the requested service is or may be covered by Customer's 90 day remedy for purportedly defective parts previously
installed by AIS.
c. Allow AIS full and unrestricted access to all Equipment, communications, power, light, and other necessary facilities.
d. Ensure that Customer representative is present at all times while AIS is servicing the Equipment
e Allow AIS a reasonable work space and storage in the same area as the Equipment facilities.
1. Maintain site conditions within the common environmental range of all Equipment and media as specified by Manufacturer's and AIS's equipment
and site environmental, safety, and health requirements.
g. Use only Manufacturer's toners, developer, drums, and cartridges in non-impact printer products. Use of foreign material will render this
Agreement null and void.
h. Provide and assume complete responsibility for security and back-up of data and infolTI1ation recorded on or in Equipment as Customer considers
necessary.
i. Ensure that the person signing this Agreement has the authority to sign on behalf of Customer.
NOTE: AIS WILL NOT BE RESPONSIBLE FOR THE LOSS, DAMAGE, OR DISCLOSURE OF DATA.
7. MOVEMENT OF EQUIPMENT.
a. The Customer will provide to AIS thirty (30) days' prior written notification of an Equipment move. AIS will be under no obligation to continue
Covered Maintenance if Equipment is moved without AIS's prior written approval.
b. At AIS's option, AIS may provide to the Customer removal (de-installation) and reinstallation services at the then prevailing Billable Call
Maintenance Service rates and standard terms and conditions. Monthly maintenance charges will be suspended when Equipment is removed
(de-installed) and restored on the day after reinstallation, provided Equipment remains eligible for service.
c. AIS reserves the right to discontinue Maintenance Services under this Agreement for Equipment relocated outside the service area of an AIS
office.
8. CHARGES AND PAYMENT.
a. The Customer will be charged for Covered Maintenance for Equipment as specified in the Schedule A and invoiced on an annual basis. In
addition, the Customer will be invoiced currently, as it may occur, for individual Equipment or system retirement or addition. The Customer may
then choose a payment schedule as specified on the respective invoice according to the then current AIS payment policy.
b. The Customer's payment is to be made on the first day of the first month of each payment period.
c. The Customer will be charged at the then current prevailing rates and standard terms and conditions for Billable Call Maintenance Service as it
occurs and will promptly pay these invoices when rendered.
d. Any sums due and unpaid for more than thirty (30) days shall be subject to a late charge of one and one-half percent (1.5%) per thirty-day period
(18%) annual percentage rate) from the date payment is due, not to exceed the maximum permitted by law. Any sums not contested in writing
within fifteen (15) days aller the invoice is rendered or the payment is due shall be finaL The Customer agrees to pay all costs and expenses of
collection, including attorneys' fees permitted by law, incurred by AIS as a result of the Customer's failure to pay any charges for Maintenance
Service under this Agreement.
e. Charges lor Covered Maintenance Service will be prorated as necessary at 1/3oth of the monthly maintenance charge for each calendar day.
f. All charges for Covered or Billable Call Maintenance Service specified in this Agreement are exclusive of all federal, state, municipal, or other
government excise, sales, use, occupational. or like taxes now in force or enacted in the future, and, therefore. are subject to an increase equal in
amount to any tax AIS may be required to collect or pay upon the services or materials furnished hereunder
9. LIMITED WARRANTY:
a. AIS warrants that product or parts thereof repaired or serviced by A1S 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. AIS does not warrant that its products will meet Customer's requirements or that their use or operation will be uninterrupted or error free.
c. The LIMITED WARRANTY set forth above shall not apply (I) to the application Software, which is furnished "AS IS," Without any warranty of any
kind; (ii) to any cause of failure to malfunction other than defects in material or workmanship; (iii) to any AIS product or part thereof which has
been tampered with, altered, installed, moved, transported, adjusted, reconfigured, repaired, maintained, or serviced by anyone except AIS or
someone authorized by AIS, or which has been subjected to accident, misuse, neglect. abuse, improper use, misapplication, alteration,
interconnection by electrical, electronic, or mechanical means with non-compatible equipment or software, power failure, failure of temperature or
humidity controls, or exposure to any use or environment 01 greater severity than that for which the product or part was manufactured and sold;
and (iv) to glass breakage, lamp failure, paper toner, or other parts which require repair or replacement due to nonnal wear and tear.
d. The LIMITED WARRANTY set forth above does not extend to anyone other than the original Customer from AIS and may not be assigned by the
original Customer
e. AIS does not authorize any person to assume for AIS, either in writing or orally, any other liability or to make any other warranty or to provide any
other remedy in connection with any AIS products or parts thereof
10. REMEDY:
a. AIS', ENTIRE OBLIGATION, ANO CUSTOMER'S EXCLUSIVE REMEDY, UNOER THE LIMITED WARRANTY SET FORTH ABOVE IS
LIMITED. AT AIS', SOLE OPTION, TO THE REPAIR, REPLACEMENT, OR REFUND OF THE SERVICE CHARGES PAID BY CUSTOMER
FOR THE REPAIR OR SERVICING OF ANY PRODUCT OR PART THEREOF DETER MINEO BY AIS TO BE DEFECTIVE IN MATERIAL OR
WORKMANSHIP, provided that written notice of any purported defect is received by AIS's sales or service representatives within ninety (90)
days alter the date of the repair or the service at issue. AIS shall not be responsible for the cost of transportation of any product or part thereof
which IS returned to it for repair, replacement, or refund. AIS assumes no liability for delay In performing its obligations under the LIMITED
WARRANTY. Replaced products or parts thereof are the property of AIS
b THE REMEDY SET FORTH ABOVE IS EXCLUSIVE. All liability of AIS with respect to the repair or servicing of a product or part thereof,
whether based upon warranty, contract, negligence, or any other basis, is limited to. and in no event will exceed, amounts paid by Customer to
AIS for the repair or servicing of that product or part thereof and terminates ninety (90) days after the repair or service
11 OISCLAIMER OF WARRANTIES ANO L1M1TATION OF LIABILITY AND REMEDY.
RES 96-2l4
~
a. . AIS 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 QR OF
MERCHANTABILITY. WITH RESPECT TO THE MAINTENANCE, REPAIR. OR SERVICING OF ITS PRODUCTS OR ANY PARTS
THEREOF OTHER THAN AS EXPRESSLY SET FORTH ABOVE IN SECTION 10. AIS SHALL NOT INCUR ANY OTHER OBLIGATIONS
OR LIABILITIES AND 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 PROOUCT OR ANY UNFITNESS OR INADEQUACY OF THE
PROOUCT, OR BY CUSTOMER'S NEGLIGENCE. OR FOR ANY LOSS OF PROFITS. LOSS OF USE, INTERRUPTION OF BUSINESS
LOSS OF REVENUES. LOSS OF DA TE. OR FOR ANY OTHER OAMAGES OR CLAIMS. WHETHER BASED ON STRICT OR ABSOLUTE
TORT LIABILITY, NEGLIGENCE. CONTRACT. OR OTHERWISE, EVEN IF AIS KNEW OR SHOULD HAVE KNOWN OF THE POSSIBILITY
OF SUCH DAMAGES. EXCEPT AS EXPRESSLY UNDERTAKEN BY AIS IN THE REMEDY ABOVE.
b. The LIMITED WARRANTY and lI1e DISCLAIMER OF WARRANTIES AND LIMITATION OF LIABILITY AND REMEDY sellorll1 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 stales 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 repair or service at issue.
c. Any action arising out of this Agreement 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).
12. DELAYS. AIS shall not be liable for delays in deliveries caused by fire, flood, 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.
13 GENERAL.
a. Assignment. AIS may transfer, assign, or subcontract any or all of its rights, duties, or obligations under this Agreement. The Customer may not
transfer, pledge, or assign any of its rights, duties, or obligations under this Agreement without the prior written consent of AIS. Any attempted
assignment, transfer, or pledge by Customer without A/5's prior written consent is void.
b. AIS's Property. ArS's materials, tools, documentation, diagnostics, and equipment provided to the service site or the Customer shall remain the
sore property of AIS.
c. Termination, Either party may terminate this Agreement, if the other party fails to perform its obligations under this Agreement and such failure
continues for a period of twenty (20) days after written notice of such failure of performance is delivered to the other party_ AIS shall have the
right to terminate this Agreement or to wlthhold Maintenance Services hereunder for nonpayment of services, or if the Customer becomes subject
to any proceeding under the Bankruptcy Act or any statute or other proceeding or remedy generally for the protection of debtors or creditors.
d. Governing Law This Agreement shall be governed by and construed in accordance with the laws of the State of California.
e. Notices. Any notice or other communication relating to this Agreement to either party will be in writing and delivered at. or mailed to, the
addresses listed in the Harctware Support Agreement or to such other address as a party may notify the other party in writing
f. Attorneys Fees. In any action by a party to enforce its rights under this Agreement, the nonprevaiting party shall pay the prevailing party's costs
and expenses, including reasonable attorneys' fees
g Entire Agreement. This Agreement, the Service SChedule(sl, or any other Schedule(s) that may be attached hereto, and the Sales Order(s) for
the Equipment constitute the complete agreement between A1S and the Customer regarding the subject matter of this agreement and supersede
aU prior proposals and agreements, and all other wrinen and oral communications between A1S and Customer, including aU terms and conditions
submitted by Cuslomer NO CHANGE, MOOIFICATlON, TERMINATION, OR WAIVER OF THIS AGREEMENT OR OF ANY OF ITS TERMS
OR CONDITIONS SHALL BE BINDING UNLESS IN WRITING ANO SIGNED BY AUTHORIZED REPRESENTATIVES OF AIS AND
CUSTOMER. Neither commencement nor completion of performance or delivery shall be construed or deemed as acceptance of or assent to
Customer's additional or different terms and conditions If any provision hereof shaH be held to be invalid, illegal, or unenforceable, the remaining
provisions shall not be affected and shall be enforced to the fullest extent of the law
Adaptive Information Systems. Inc.
CUSTOMER
26001 Pala
Address:
300 N. IIDII Street
Misson Viejo, CA. 92691
City Hall
City/State/ZIP:
San Bernardino CA 92418
Tille:
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7:z~/t S () 12 t7Z
~~(7
B~~Y1(~{A'L~
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(Type or prinl name):
Tom Minor
Tille:
Mayor
Dale:
Dale:
,RES 96-2l4
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Software Support Agreement
Agreement No.
This Software Support Agreement (hereinafter 'Support Agreement") is between Adaptive Information Systems, Ine. (hereinafter 'Distributor") and
(hereinafter "Customer")
1. Software Support.
Distributor agrees 10 provide to Customer the services descnbed 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. Paymenl of the standard Support
Fees (as defined in Section SA) entitles Customer to support servo
ice during the Pnncipal Period of Maintenance ('PPM"). PPM is
between the hours of 8:00 a.m. and 5:00 p.m. Pacific time. Monday
through Friday, excluding Distributor holidays ('Distnbuto~s norln'll
business hours"). All Covered Software elected in Schedule A or
subsequently added by amendment shall have the same PPM.
Customer may request, in writing, special extended periods of coy.
erage, subject 10 Distributor's current policies, terms, conditions,
and prices for such service.
B. Scope of Service. Distnbutor will provide service during the PPM
as tong as the Covered Software is at Ihe current or the nexl most
current revision level and operated in accordance with Distributor'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 Updale (SMU) ,
software bug fix module or workarounds; (2) reasonabte
commercial efforts 10 report and test fixes defects in the Covered
Software that matenally and adversely affect the efficiency or use
of the Covered Software as descnbed in Distributor's wntten
specifications; software program fixes will be provided for the
current release only; and (3) delivery and/or installation of all
software revisions provided by vendor that Distributor deems
necessary with respect to the Covered Software; and Distnbutor
will use its best efforts to render Support Services within a
reasonable time.
C. Enhancements to Covered Software. Distnbutor agrees to
deliver to Customer without charge any new versions of the
Covered Software that contains only error corrections and minor
enhancements. Distributor may also offer to Customer new
versions of the Covered Software that contain more than error
corrections and minor enhancements, subject 10 an additional
license fee. Distributor shall have the sole discretion to determine
whether an updated or enhanced version of the Covered Software
will be subiecllo an additionalticense fee.
D. Service Limitations. Support Services are contingent upon the
proper use of the Covered Software in accordance with Distributor's
published specifications and does not include any of the following:
(1) service on Covered Software installed in unsafe or hazardous
environments, as determned by Distributor; (2) service resulting
from accident, neglect, aHerations, improper use, or misuse of the
Covered Software as necessitated by adjustments and changes
at1empted by non-Distributor personnel; (3) service to a version
other than the current Of the next most current version of the
Software; (4) efforts to reslore the software version and/or data
beyond the most recent back-up; (5) service related to software
other Ihan Ihe 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
Distributor; and (7) service request due to problems that are not the
direct result of Covered Software licensed by Distnbutor. In the
event that Support Services are provided at a location olher than
Distnbuto~s lacilities, then Customer shall be charged Distributor's
then current hourty or daily rates for Support Services during all
travel lime plus all reasonable travel and lodging expenses of
Distributor and its representatives. The time actually spent
providing Support Services at such other location win be included in
the Support Fees
2. Customer's Responsibilities
Customer shall provide reasonable assistance to Distributor in the
performance of Services, including without limitation, providing
Distributor 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 Softv1are
and not furnished by Distributor, including without limitation, the
necessary modem and remote access software reasonably specified by
Distributor for the purposes 01 providing dial-up access to Distributor.
Customer is responsible for charges incurred for communication facilities
at Customer's facilities, whether incurred by Customer or by Distributor
service representatives while pertorming service on the Covered
Software Customer is responsible for performing all system software
backups and restoration of data. Customer shall notify Distributor of any
Covered Software failure and shan allow Distributor full and free access
10 the Covered Software lor performng Support Services. Customer
agrees that Distributor shall have all rights and licenses of third parties
necessary or appropriate lor Distributor to access the hardware and thIrd
party software in the pertormance of the Support Services.
3. Alterations and Additions.
Distributor will not be responsible to Customer for loss of use of the Cov-
ered Software or for any other liabilities arising from alterations, additions
or modifications which are made to the Covered Software by other than
authorized representatives 01 Distributor. [f in the opinion of Distributor,
any such alteration, addition or modification adversely affects
Distributors ability to render Support Services, Distnbutor reserves the
right to terminate this Support Allachment immediately upon wntten
notice to Customer.
4. Term and Applicability to Other Attachments with Distributor
If Customer elects at the same time as il executes a Purchase, License
and Service Agreement 10 have thiS Support Allachment apply, then (a)
the initial term shall begin on Ihe 'Implementation Date' (the
"Implementation Date" shall be the date that Covered Software is loaded
and passes Distributor's test procedures at Customer's site), and (b) the
terms of this Support Allachment sliall supersede the ninety day (90)
warranty deSCribed in lhe Standard Sof1\N3re License Attachment. If thiS
AGflTSWM oor
. llliS 96-214
5.
Support Attachment first goes into effect at any other time, the initial
term shall commence on the date of execution or initialing of Ihis Support
Attachment. The initial term shall terminate on December 31 of the year
in which the initiallerm commenced. The term of service for upgrades
and other software added as Covered Software atter the initial
Implementation Date shall be coterminous with the term of service
applicable to the Covered Sol1ware initially covered. Aher the initial
term, Support Services shall be automatically renewed for successive
one (1) year periods unless either party notifies the olher on or before
ninety (90) days prior to the end of Ihe then existing term.
Support Fees
A. Definition. "Suppon Fees" are the tolal annual charges
designated as such on ScI1edule A. Support Fees cover Support
Services pertorrred at Distributors facilities. After the initial term
and upon thirty (30) days written notice. Distributor may change the
Support Fees to its standard support fees then in effect. If the
Support Fees are increased, Customer may terminate service as of
Ihe effective date of such increase. upon fifteen (15) days advance
written notice to Distributor. If Customer does not terminale service
as just stipulated. the new Support Fees shall become effective on
the date specified in the notice. New Support Fees shall not
exceed Distributor's fees charged to similarly situated customers.
B. Invoices. Support Fees will begin ninety (90) days after the
-Implementation Dale". Payment for the initial term is due upon
execution or initialing of this Support Attachment. Support Fees for
renewal terms shall be payable annually in advance on or before
January 1 of eacl1 year. One.tirre charges will be invoiced as
incurred. Partial invoicing will be prorated on the basis of a thirty.
day (3(kJay) month. Customer shall pay the Support Fee and all
other invoice charges in full within thirty (30) days of the invoice
date. All armunts payable under this Support Attachment shall be
paid in U.S. Dollars.
6.
C. Default Customer shall be deemed to have defaulted in payment
il it has not paid Distributor all armunts due within thirty (30) days
aher receipt of invoice. Customer's failure to pay any charges
when due shall also constitute sufficient cause for Distributor 10
suspend or terminate service under this Support Attachmenl
LIMITATION OF WARRANTY
THERE ARE NO WARRANTIES. EXPRESS OR IMPLIED, INCLUDING.
BUT NOT l:IMITED TO, THE IMPLIED WARRANTIES OF
MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE
WITH RESPECT TO THIS SUPPORT ATTACHMENT. THIS
WARRANTY MAY GIVE CUSTOMER SPECIFIC LEGAL RIGHTS.
SOME STATES DO NOT ALLOW THE EXCLUSION OF IMPLIED
WARRANTIES OR THE LIMITATION OR EXCLUSION OF LIABILITY
FOR INCIDENTAL OR CONSEOUENTIAL DAMAGES SO SOME OF
THE LIMITATIONS OR EXCLUSIONS ABOVE AND IN'THE GENERAL
TERMS AND CONDITIONS MAY NOT APPLY TO ERT AIN
SERVICES.
(Type or print name)
1/2 t:/J ~ t.J I2C ;Z
gz 'I ~.6
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Title
Date
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 Support Attachment at the option of Distributor. Distributor
shall have the right to alter the type and schedule 01 maintenance
provided to the relocated Covered Sol1ware. Customer shall give
Dlstrrbutor at least thirty (30) days advance written notice
specifying the new location prior to any movement.
B. Other Services. Any services rendered by Distributor that are
not included m the scope of Support Services, if requested by
Customer, Will be pertorrred at Distributor's discretion and if
pertormed, will be charged to Customer at current Custo';"r
Service time and material rates and terms then in effect.
8. Proprietary Rights.
Certain information, product development plans, materials, technical or
nontechnical data, formulas, compilations, programs, devices, methods,
techniques. drawings. processes. or portions thereof supplied by
Distributor. including the Sol1ware and the documentation thereof are
trade secrets and confidential information of Distributor or its sup~liers
and are fumished solely to assist Customer in the installation. operation
and use of the Sol1ware. Trade secrets and confidential information
include any information Ihat is of value to its owner and is treated as
confidential. Customer agrees to hold the trade secrets and confidential
information disclosed by Distributor in strictest confidence and not to
directly or indirectly, copy. reproduce. distribule, manufacture. duplicate:
reveal. report, publish. disclose. cause to be disclosed, or othelWise
transfer the trade secrets and confidential information disclosed by
Distributor to any third party. or utilize the trade secrets and confidential
information disclosed by Distributor for any purpose whatsoever other
than as expressly contemplated by this Agreement. With regard to trade
secrets, this obligation shall continue for so long as such information
constitutes a Irade secret under applicable law. With regard to confi-
dential information, this obligation shall continue for the term of this
Attachment and for a period of five years thereafter.
9. Source Code Escrow.
A copy of the Source Code version of the Sol1ware (the 'Source Code')
has been placed in the possession of Data Securities International, Inc.
("Escrow Agenr). 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
General Terms and Conditions.
The parties acknowledge thallhe 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 Support Attachment, Ihe General Terms and
Conditions shall control and govern
By'---;;;7-, I 7lf(iC~i.._
(Type or print name)
Tom Minor
Title:
Mayor
Dale'
I
AGMT S'm.~ [.o::JT