HomeMy WebLinkAbout2005-056
~
1
RESOLUTION NO. 2005-56
2
3
RESOLUTION OF THE MAYOR AND COMMON COUNCIL OF THE CITY OF SAN
BERNARDINO AUTHORIZING THE CITY OF SAN BERNARDINO TO ENTER INTO
AN AGREEMENT WITH LOMA LINDA UNIVERSITY MEDICAL CENTER TO
PROVIDE EMERGENCY MEDICAL SERVICE INFORMATION.
4
5
6
7
8
9
BE IT RESOLVED BY THE MAYOR AND COMMON COUNCIL OF THE CITY
OF SAN BERNARDINO AS FOLLOWS:
SECTION 1. The City of San Bernardino and Lorna Linda Medical Center wish to enter
into an Agreement to provide emergency medical service information to a specified data system;
SECTION 2. The Mayor or her designee is hereby authorized and directed to execute said
10
Agreement, a copy of which is attached and incorporated herein as Attachment A;
11
SECTION 3. The City of San Bernardino and Hea1thware Solutions wish to enter into a
12
Statement of Work to link with the City's BIO-Key (Sunpro System) to provide emergency medical
13
service information;
14
SECTION 4. The Mayor or her designee is hereby authorized and directed to execute said
15
Statement of Work, a copy of which is attached and incorporated herein as Attachment B;
16
SECTION 5. The authorization to execute the above referenced Agreement and Statement
17
of Work is rescinded if it is not executed within one hundred twenty (120) days of the passage of
18
this resolution.
fill
fill
fill
fill
fill
fill
fill
fill
fill
1
19
20
21
22
23
24
25
26
27
28
2005-56
1 RESOLUTION OF THE MAYOR AND COMMON COUNCIL OF THE CITY OF SAN
BERNARDINO AUTHORIZING THE CITY OF SAN BERNARDINO TO ENTER INTO
2 AN AGREEMENT WITH LOMA LINDA UNIVERSITY MEDICAL CENTER TO
PROVIDE EMERGENCY MEDICAL SERVICE INFORMATION.
3
4
I HEREBY CERTIFY that the foregoing resolution was duly adopted by the Mayor and
5
Common Council of the City of San Bernardino at a joint regular meeting thereof, held on the
7th
day of March
, 2005, by the following vote, to wit:
6
7
8
9
Council Members: AYES NAYS ABSTAIN ABSENT
ESTRADA x
LONGVILLE X
MCGINNIS X
DERRY X
KELLEY X
JOHNSON y
MCCAMMACK x
10
11
12
13
14
15
16
RacMJJ. ClaAh
Rachel G. Clark, City Clerk
The foregoing resolution is hereby appro'f:!. ~WI1 J~oJ: 2~
17
18
19
20
21
J . Valles, Mayor
it of San Bernardino
22
Approved as to form
and legal content:
23
24
James F. Penman
City Attorney
25
By: L~ t.f~
()
26
27
28
2
1":-
'~
'.
SUBCONTRACT BETWEEN
LOMA LINDA UNIVERSITY MEDICAL CENTER AND
THIS CONTRACT is entered into by and between Lorna Linda University Medical Center, a California
nonprofit corporation (hereinafter referred to as LLUMC), and City of San Bernardino (bereinafter referred to as the
City) and shall be effective as of the last signature date below.
WITNESSETH:
WHEREAS, the United States Army has awarded to LLUMC Award Number DAMD 17-03-2-0061
(hereinafter referred to as the Primary Grant); and
WHEREAS, the City represents that it is ready, willing and able to enter into an Agreement to provide
support and services to LLUMC to advance the goals of the Grant; and
WHEREAS, the City has skilled personnel and facilities available to undertake such a program; and
WHEREAS, the City and LLUMC desire this Agreement and the work to be performed under it to fully
comply with all appropriate laws and regulations;
NOW, THEREFORE, THE PARTIES AGREE AS FOLLOWS:
ARTICLE 1: SCOPE OF WORK
City, in the regular performance of its emergency medical services, will use computer equipment supplied by
LLUMC hereunder to collect and download into a specified data system patient and other information related to the
performance of such services, as further described on Exhibit A, attached hereto and a part hereof. City agrees to
appoint its EMS Administrator to oversee the performance of such services; no substitution may be made without the
prior written consent of LLUMC
ARTICLE 2: EOUIPMENT
A. For its performance hereunder, LLUMC will supply to City the computer and related equipment described
on Exhibit B ("Equipment"), attached hereto and a part hereof.
B. For the duration of this Contract, title to all Equipment hereunder shall remain with LLUMC. Upon
termination of this Agreement, title to such Equipment shall either be transferred to City or remain with
LLUM C, as hereinafter described.
C. For the duration of this Contract only, LLUMC shall provide for reasonable support for the Equipment
supplied hereunder. Tbe responsibility of LLUMC to support the Equipment as described shall terminate
upon the termination ofthis Agreement.
D. City shall not alter such Equipment or download or connect anything thereto other than what is supplied by
LLUMC hereunder or is otherwise allowed by LLUMC and shall not use such Equipment for any
purpose(s) other than as described herein. City shall be responsible for any loss of or damage to such
Equipment resulting from the negligence or willful misconduct of Subcontractor, its employees or agents
and agrees to promptly upon demand reimburse LLUMC for the replacement or repair of the Equipment
lost or damaged. City shall use the computer Equipment supplied hereunder at its own risk; other than the
obligation to provide reasonable support set forth above, LLUMC shall have no responsibility whatsoever
for the said Equipment, any malfunction thereof or any loss or damage caused by it or resulting from its use
by City.
E. City shall be solely responsible for the security of the information it collects, stores and/or transmits using
said Equipment and LLUMC shall have no responsibility whatsoever for such security or any breach
thereof. Should City arrange to transmit its data collected hereunder to LLUMC's server, LLUMC agrees
r
, .
to be responsible for the security of the data once it is stored on its server, However, City remains solely
responsible for the security of the data during transmission to LLUMC's server. Also, it is expressly
acknowledged and agreed that City shall use LLUMC's server as described herein at its own risk, that
LLUMC is not and will not ever be an "outsourcer," that LLUMC does not guarantee continuous,
uninterrupted access to its server or to the information stored thereupon and that LLUMC shall not be
liable in any way to City or anyone else for any loss, damage, cost or expense whatsoever suffered as a
result of the server or the data thereupon being or becoming inaccessible for any reason. City agrees to
indemnify and hold LLUMC harmless from and against any and all claims of loss, damage, cost or expense
resulting from City use of said server.
ARTICLE 3: PERIOD OF PERFORMANCE
The Period of Performance of this Contract shall begin on June 22, 2004, and shall not extend beyond September 30,
2005 unless agreed to in writing by both parties hereto. Any extension of this Contract is subject to receipt by
LLUMC of specific funding and time extension under the Primary Grant for continuation of the City portion of the
work.
ARTICLE 4: SCIENTIFIC CONTROL
The Principal Investigator, Jeff T. Grange, M.D., (hereinafter referred to as the Principal Investigator) shall
coordinate the efforts ofLLUMC and the City.
ARTICLE 5: ADMINISTRATION
The designated administrative contacts for LLUMC shall be: John C. Richards, Office of Grants Management,
24880 Prospect Street, Lorna Linda CA 92350; 909-558-4589; jrichards@univ.LLUMC.edu, and, as to
programmatic matters, Jeff Bender, Manager Discoveries Project, 11234 Anderson Street Room A234, Lorna Linda
Ca. 92354; 909-558-7611; ibenderilllahs,llumc.edu.
The designated administrative contact for the City shall be: Battalion Chief Matt Fratus, San Bernardino City Fire
Department 200 East 3'" Street, San Bernardino, Ca. 92410-4889; 909-384-5286; fratus_ma@sbcity.org
ARTICLE 6: COMPENSATION
If Subcontractor performs hereunder for the full period of performance, then, upon the completion of the period of
performance ownership of all computer(s), software and related Equipment provided to City hereunder shall be
transferred to City by LLUMC, if City so desires. If City does not desire such Equipment, or if City withdraws
from the project prior to completion of the period of performance, then all of such Equipment shall be returned to
LLUMC upon termination of this agreement. It is understood and agreed that ownership of such Equipment upon
the completion ofthe project is the only compensation to be given City by LLUMC for services rendered hereunder.
ARTICLE 7: CONTINGENT UPON GRANT
This Contract and the funding thereof is expressly contingent upon the said Primary Grant. If funding under said
Primary Grant is ever discontinued or changed, or if the terms and conditions of said Primary Grant are ever altered,
this Agreement shall be terminated or amended as may be required thereby.
ARTICLE 8: ACCOUNTS. AUDITS AND RECORDS
A. The City shall maintain books; records, documents and other evidence, accounting procedures, and
practices sufficient to reflect properly all direct and indirect costs of whatever nature have been incurred for
the performance of this Contract. The foregoing constitutes "records" for the purposes of this clause.
2
"
, ;.
B. The City facilities (or such part thereof as may be engaged in the performance of this Contract) and records
shall be subject at all reasonable times to inspection and audit by LLUMC's authorized representative(s)
and the cognizant federal audit agency.
C. The City shall preserve and make available records until the expiration of three years after the end of the
Project period covered or until audit is completed and all resulting questions are resolved, whichever occurs
first.
D. The City shall furnish LLUMC copies of A-l33 audited financial reports for the Period of Performance
listed in Article 2.
ARTICLE 9: CONFLICT OF INTEREST
City shall require the disclosure of, and address, any perceived or actual financial conflict of interest related to the
Scope of Work under this contract. Policies and procedures for investigator [mancial disclosure and conflict of
interest management shall comply with NSF Grant Policy manual Section 510 or 45 CFR Part 94. If a [mancial
conflict of interest is identified, City shall notifY LLUMC, within 60 days of the execution of the contract that,
A. City has imposed conditions or restrictions on the research for the satisfactory management, reduction, or
elimination of conflict of interest, or
B. City has identified a conflict of interest that cannot be managed satisfactorily by the designated City
authorities. In this case, the matter will be referred to LLUMC for joint LLUMC- City management.
LLUMC shall subsequently (i) certifY that the conflict is satisfactorily managed, or (ii) endorse the
continuation of the contract with unresolved conflict, and notifY the sponsor if required to do so by
regulation, or (iii) recommend discontinuation ofthe contract.
ARTICLE 10: REPORTS
The Subcontractor will furnish reports as required by the Principal Investigator.
ARTICLE 11: PATENTS AND INVENTIONS
A. The disposition of any patents and inventions arising under this Agreement will be subject to the provisions
of P.L. 98-620 and 37 CFR Part 401.
B. All intellectual property, including without limitation, trade secrets, know how, patents, any original works
of authorship, improvements, developments, or inventions, whether patentable or not, developed as a result
of this Agreement or during City performance of the work described in the attached Exhibit A, will be
owned solely and exclusively by LLUMC.
C. Copyright in works, including but not limited to reports, correspondence, presentations and computer
software, created or fixed in a tangible medium of expression by City under this Agreement will vest in
LLUMC. At City request and to the extent that LLUMC has the legal right to do so, LLUMC will grant
to Citya nontransferable, nonexclusive license to such works on reasonable terms and conditions, including
reasonable royalties, as the parties may mutually agree.
ARTICLE 12: PUBLICATIONS
All research reports and other publications relating to the work under this Contract shall:
A. Bear proper acknowledgment of the support provided by the Primary Grant.
B. Be submitted to the Principal Investigator in the form of advance copies for review and comment prior to
publication to ensure appropriate coordination ofthe research results.
3
r:
C. Be furnished in a list of publications resulting from the research as part of the annual progress report
submitted to the Principal Investigator.
D. Have mutually arranged specific understanding between investigators regarding professional credits of
authorship.
ARTICLE 13: SUBCONTRACTS
It is understood that the City shall not subcontract any of the research effort required under Article I without prior
approval of LLUMC.
ARTICLE 14: UNIVERSITY NAME - LIMITATIONS ON USE
Neither party will use the name of the other in any form of publicity except on the specific written authorization of
the signers below.
ARTICLE 15: INDEPENDENT CONTRACTOR RELATIONSHIP
The relationship of the City to LLUMC is and shall be that of an independent contractor in all respects under this
Contract, and nothing herein shall be construed as creating any other relationship.
ARTICLE 16: INSURANCE
The City at its sole cost and expense, shall insure its activities in connection with this Agreement and obtain, keep in
force and maintain policies of insurance, or an equivalent program of self-insurance, as follows:
A. Commercial Form General Liability Insurance (contractual liability included) with limits as follows:
(i) Each Occurrence $1,000,000
(ii) Products/Completed Operations Aggregate $1,000,000
(iii) Personal and Advertising Injury $1,000,000
(iv) General Aggregate (Not applicable to the Comprehensive Form) $3,000,000
If the above insurance is written on a claims-made form, it shall continue for three years following
termination of this Agreement. The insurance shall have a retroactive date of placement prior to or
coinciding with the effective date of this Agreement.
B. Business Automobile Liability Insurance for owned, scheduled, non-owned, or hired automobiles with a
combined single limit no less than one million ($1,000,000) per occurrence if using automobiles in
conducting research under this Agreement.
C. Workers' Compensation as required under California State law.
D. Such other insurance in such amounts which from time to time may be reasonably required by the mutual
consent of LLUMC and the City against other insurable risks relating to performance.
E. The coverages required under this Article shall not in any way limit the liability of the City.
F. A thirty (30)-day advance written notice (10 days for non-payment of premium) to LLUMC of any
modification, change, or cancellation of any ofthe above insurance coverages is required. Upon the
execution of this Agreement, City shall furnish LLUMC with Certificates oflnsurance evidencing
compliance with all requirements.
ARTICLE 17: INDEMNIFICATION
4
r
City shall defend, indemnifY, and hold LLUMC, its officers, employees, and agents harmless from and against any
and all liability, loss, expense (including reasonable attorney's fees), or claims for injury or damages resulting from
the performance of this Agreement but only in proportion to and to the extent such liability, loss, expense, attorney's
fees, or claims for injury or damages are caused by or result from the negligent or intentional acts or omissions of
City, its officers, agents, or employees.
Likewise, LLUMC shall defend, indemnifY, and hold City, its officers, employees, and agents harmless from and
against any and all liability, loss, expense (including reasonable attorney's fees), or claims for injury or damages
resulting from the performance of this Agreement but only in proportion to and to the extent such liability, loss,
expense, attorney's fees, or claims for injury or damages are caused by or result from the negligent or intentional acts
or omissions ofLLUMC, its officers, agents, or employees. The costs salary and expenses of the City Attorney and
members of this office in enforcing this contract on behalf of the City shall be considered as "attorney's fee" for
purpose of this paragraph.
ARTICLE 18: CHANGES
LLUMC may at any time, through a written Amendment to this Contract, make changes within the Scope of Work
or Period of Performance of this Agreement. The City and LLUMC shall negotiate in good faith equitable
adjustments, if appropriate, in the terms of this Contract to cover any such change.
ARTICLE 19: TERMINATION
Either party may, by written notice to the other party, terminate this Contract in whole or in part at any time, either
for its convenience or because of the other party's failure to fulfill its contract obligations or to cure or correct its
contract obligations within a period as the parties may mutually agree. Upon receipt of such notice by the non-
issuing party, the City shall: (A) immediately discontinue all service affected (unless the notice directs otherwise),
and (B) deliver to LLUMC all data, reports, summaries, and such other information and material as may have been
prepared for and/or accumulated by the City in performing this Contract, whether completed or in process. Upon
termination, City shall be obligated to take all reasonable steps to curtail expenses incurred in support of this project,
and LLUMC shall be obligated to reimburse Subcontractor for uncancellable expenses incurred in support of this
project. Nothing in this article is intended to abrogate the Parties right to mutually terminate this Contract on such
terms as may be agreed upon.
ARTICLE 20: FORCE MAJEURE
This Agreement is subject to force majeure and is contingent upon strike, accidents, acts of God, weather conditions,
inability to secure labor or restrictions imposed by a government or governmental agency, or other delays beyond the
control of the parties. If performance is prevented by any cause of force majeure, this Agreement shall be then void
without penalty to either party for any such performance not delivered.
ARTICLE 21: ENTIRE AGREEMENT
This Agreement states the entire subcontract between the parties and merges herewith all statements, representations,
and covenants heretofore made, and any other agreements not incorporated herein are void and of no effect. No
representations or promises not expressly stated herein have been used to induce any party to enter into this
Agreement.
ARTICLE 22: GOVERNING LAW
This Contract, and all matters or issues collateral to it, shall be governed by and construed in accordance with the
laws of the State of California and the United States of America. Any dispute shall be adjudicated and enforced in
the above referenced Court.
5
~
!"
.. , .,.
IN WITNESS WHEREOF, the parties have caused this Subcontract to be executed by their duly authorized
representatives.
LOMA LINDA UNIVERSITY MEDICAL CENTER
BY: J~ tJ!~
NAME:
Daniel E. Fontoura. MPPM
TITLE:
Vice President. Medical Center
II}.-u!CJ(
. f
DATE:
c~
------
Jeff ~M.D.
CITY
udith Valles
BY:
DATE:
ayor
1"~'()5
6
Exbibit A
Participating agencies wiJI use the HealthWare Solutions software on the Panasonic
Toughbook PC provided by the LLUMC DISCOVERIES project as their primary EMS
documentation tool. Personel will continue to document patient care per their current
standards as defmed by ICEMA and their department protocols. This project wlll in no
way change the current practice of patient transportation and destination decisions. If a
patient is transported to LLUMC, the transporting EMS crew will electronically
download patient documentation onto the server at LLUMC in preparation for it to be
merged into the hospital patient care record. For patients transported to other facilities
that do not have an interface with HealthWare Solutions, the patient record will be
printed in hard copy to become part of the hospital patient care record. After completing
a call, EMS crews wiJI transfer patient documentation into the agencies report
management system by process defined by that agencies EMS manager. Each
participating agency will remain responsible for the privacy of patient information and
each provider wiJI continue to follow their agencies privacy standards and protocols.
Agency administrators will work with DISCOVERIES project technical staff to assure
PC's are updated when required by LLUMC technical staffwith the latest security or
system updates.
"
Exhibit B
Equipment List:
San Bernardino City Fire Department
. 14 - Panasonic Toughbook personal computers with the following inventory
information.
Machine Name Model # Serial #
BOOOl CF-18BDAZXMM 4CKSA25901
Boo02 CF-18BDAZXMM 4CKSA25893
BOO03 CF-18BDAZXMM 4CKSA25835
BDOO4 CF-18BDAZXMM 4CKSA25807
BDOO5 CF-18BDAZXMM 4CKSA25949
BOO06 CF-18BDAZXMM 4CKSA25885
Boo07 CF-18BDAZXMM 4CKSA25%0
BDOO8 CF-18BDAZXMM 3KKSA14892
BOO09 CF-18BDAZXMM 4CKSA25725
BOOW CF-18BDAZXMM 4CKSA25787
BOO 11 CF-18BDAZXMM 3JKSA11814
BOO12 CF-18BDAZXMM 4CKSA25979
BOO 13 CF-18BDAZXMM 4CKSA25812
BOO14 CF-18BDAZXMM 4CKSA25869
. 14 - D/C power supply cords.
. 14 - Licenses, Health Ware Solutions EMS Solution 2000.
. 14 - Copies, Mcafee ASAP antivirus.
c
AttachmEtnt B
~
BID-key FireRMSTM
Statement of Work
For
Lorna Linda University Medical Center
and
City of San Bernardino, CA
October 19, 2004
BID-key. FireRMS and their associated logos. as applicable, are trademarks or registered trademarks or BtO-key International,
Inc. All other brands, products and company names mentioned herein may be trademarks or registered trademarks of their
respective holders.
@ 2004 BfO-key International, Ine. All Rights Reserved
121612004
Page 1 of25
F
'i~
Table of Contents
1.0 Project Overview
2.0 Project Deliverables
3.0 Responsibilities
4.0 Acceptance Testing
5.0 Signatures
3
4
5
7
8
Appendix A - Project Methodology
Appendix B - Minimum Hardware Requirements
Appendix C - Product Descriptions
Appendix D - Change Order Form
@ 2004 81O-key International, Ine. All Rights Reserved
12/612004
Page 2 of 25
(,
~
1. Overview
This project involves the installation, implementation, and configuration for the licensed BID-
key International, Inc. ("BID-key") FireRMSTM software and services listed in this Statement of
Work ("SOW"). BIO-key is providing these products to Lorna Linda University Medical Center
and services to the City of San Bernardino, California (the "End User Agency") pursuant to the
BID-key International, Inc. Purchase Agreement related to this project. In the event of any
conflict or inconsistency between this SOW and the Purchase Agreement noted above the
Purchase Agreement executed pursuant to this procurement shall control.
This SOW provides a description of the products and services to be provided for this specific
project, including the general responsibilities and expectations for the parties.
The licensed software and services outlined in this SOW will be delivered by BIO-key as
indicated in the Project Methodology section of this document. Acceptance testing criteria
("A TP") will be based upon the Product Functional Descriptions for the current production
version of the provided software as presented in Appendix C of this SOW.
Additional work activities and software functionality not described in the SOW will be
considered a change order to this project. Additional work, including and not limited to
additional features, functionality, enhancements, or services covered by a change order will
likely result in additional charges or may affect the project plan related to this project.
Any dependencies or responsibilities not specifically assigned to BIO-key are deemed to be the
responsibility of the End User Agency.
This Statement of Work does not include:
. The configuration and/or programming of network infrastructure, including but not
limited to servers, clients, routers, switches, hubs or bridges.
. Training for third-party software, except as detailed herein.
. Hardware.
. Local or Wide Area Network Connections, infrastructure and/or connection band-width.
With a properly configured network, FireRMS EMS Interface, licensed for one (l) Agency will
allow departmental personnel to import EMS information into the FireRMS database. A one (1)-
agency license enables the End User Agency to operate FireRMS EMS on a single server and up
to a total of one (I )-User Agency as noted above and in the price quote.
c:> 2004 81O-key Interutiona" Inc. AU Rights Reserved
121612004
Page 3 oUS
J8i~
....~~
End User Agency and project location:
San Bernardino City Fire
300 E. 3rd Street
San Bernardino, CA 92410
BID-key Account Executive:
Ken Siemsen
300 Nickerson Road
Marlborough, MA 01752
909-6 I 2-04 11
ksiemsen@bio-key.com
Appendices included in this SOW by attachment or reference are:
A - Project Methology
B - Minimum Hardware Specifications
C - Product Descriptions
0- Change Order Form
2.0 Project Deliverables
BID-key's portion of this project consist of the delivery and installation of the current production
licensed software and services as follows:
Software and Services
BIO-key FlreRMS EMS Interface
Quantitv
1
Q!!!!!!
Agency
Project Management for Fire RMS
Technical Consulting for Fire RMS
.5 days
1 days
C 1004 81O-key Ioleraatiooa" 101'. AU Rights Reserved
11l6n004
Page 4 of 1S
F
J8i6=]\
,-~g
3.0 Responsibilities
3.1 End User Agency Responsibilities During Implementation and
Training
Any responsibilities not specifically assigned to BIO-key are deemed to be the
responsibility of the End User Agency.
The End User Agency shall:
. Provide a safe work area during installations of all FireRMS Software and
Implementation activities.
. Provide computer network and hardware capable of meeting perfonnance
requirements.
. Provide all Local and Wide Area Network: configuration settings to connect
system to computer network.
. Provide all required hardware and network infrastructure. The installation and
testing of the hardware and network infrastructure will be completed prior to
Stage I implementation.
. Remote fire station access, file servers, and workstations must confonn to the
published BIO-key Operating System Requirements as stated in Appendix B of
this SOW.
. The agency is responsible for perfonning complete backups of all databases
before installation, and after the project completion.
. The agency is responsible for providing and maintaining all Microsoft NT and
SQL security and pennission schema.
. Coordinate all activities, as required. to assure appropriate scheduling and
cooperation between all Agency involved in this project.
3.1.1 Assumptions
BIO-key assumes that End User Agency support personnel possess the knowledge
and skills necessary to perform post-installation and day-ta-day administration
tasks as related to the Microsoft Windows NT-based network used in the
FireRMS System.
c:> 2004 BIO-key International, Ine. All Righta Reserved
1216/2004
Page 5 of25
r
'8i~
..,--~o.~
3.1.2 Additional Services
Additional services are available based upon the following BIO-key standard rates:
. On site training is available at the BIO-key standard rate oUIOoo.OO per day
(one day minimum).
. Onsite implementation support, technical support, etc is available at the BIO-
key standard rate of$1200.00 per day plus expenses (one day minimum).
. Offsite implementation support, technical support, development services, etc
is available at the BIO-key standard rate of $225.00 per hour.
The above rates are quoted on a per call basis and scheduling is subject to
availability of appropriate personnel. Any additional significant quantifiable
development or support activity be addressed on a fIXed price basis via the BIO-
key Purchace Agreement amendment process.
3.2 BIO-key Responsibilities
BIO-key's responsibilities are:
3.2.1 Program/Project Management
. Assign the appropriate personnel who will be the primary point of contact
with the End User Agency throughout the implementation cycle. This
individual will have the authority to act on behalf ofBIO-key in fulfilling
BIO-key's commitments set forth in this SOW.
. The assigned BIO-key Project Manager will be the conduit for resolving all
application software technical issues that arise during the project.
3.2.2 Initial System Installation and Testing
. Provide end-to-end testing in conjunction with the End User Agency of all
software provided by BIO-key pursuant to this SOW. The functionality that
will be tested is represented within the applicable Product Functional
Description provided in Appendix C of this SOW.
. Install and test the appropriate FireRMS server software. The functionality
that will be tested is represented within the applicable Product Functional
Description provided in Appendix C of this SOW.
@ 2004 UIO-key Interaational, Ine. All Rights Reserved
121612004
Page (j on5
r
~
. During the initial system configuration and setup BIO-key's technical
personnel will instruct Agency personnel on the proper procedures to install
and configure the remaining and future client software applications.
3.2.4 Customer Support
BIO-key's Project Manager will review BIO-key's Customer Support
documentation with the End User Agency and inform the Agency ofBIO-key's
toll free customer support telephone number and access to email support.
4.0 Acceptance Testing
Acceptance for payment or other contractual obligations, in general terms, is met when the
specified Deliverables materially conform to the functional description set forth in Appendix C
to this SOW.
Acceptance is achieved when the specified deliverables conform to the specifications in the
agreed-upon Statement of Work (SOW) or one of the following occurs:
(a) more than five business days have expired after deficiencies are to be reported
and no deficiencies (or further deficiencies if after resolution of previously
identified deficiencies has taken place) are identified by the customer.
(b) the deliverables are used by the customer in an operational environment for
greater than 30 days without stopping use of the deliverables and reporting
deficiencies to BIO-key.
BIO-key is not responsible for conducting acceptance testing of third party or non-BIO-key
provided software, hardware or other items or products used in connection to this project.
@ 2004 8IO-key Iateraatioaal, Iae. All Rights Reserved
121612004
Page 7 oUS
'8i@~P'
on~~
5.0 Signatures
BIO-KEY INTERNATIONAL, INC.
Dale
tm v. Chief Financial Officer
PeRN~~' :r: ttu6/t!.-K.
~~IVERSITY MEDICAL CENTER, CALIFORNIA
'I('f./__ L Dale:
2:~ 73~. rI~ ?>'Jt:~ I'~e+.
Printed na and title .
CITY OF SAN BERNARDINO (FIRE), CALIFORNIA
""
Date:
~ ~t-v-
@ 2004 RIO-key International, Ine. All Rights Reserved
121612004
.1/ /1/ OJ./'
. I
.3 - 30-0""""
'1. (-z.~ (""
Page 8 oUS
p
~
Appendix A - Project Methodology
The methodology described herein is oITered as an example of BIO-key's
usual installation and implementation processes. Except as noted as custom
development, BIO-key's FireRMS licensed products are standard
configuration and are not subject to further development prior to
implementation.
1.0 Introduction
BIO-key's success in managing system implementation projects as described herein is a
combination of the personnel assigned to the project; the commitment made by both BIO-key
and executive management at the End User Agency; and the project methodology employed.
BIO-key's project methodology focuses on providing effective planning, control, monitoring,
and quality assurance.
BIO-key's project methodology is designed for an orderly progression from requirement to
solution--from function to form. To ensure continual progress. each phase of the process is
results-oriented and measured by the completion of specific tasks.
1.1 Pre-Project Assessment
An Assessment Stage usually precedes any large project, and BIO-key considers this
stage substantially completed upon contract award. During the process leading up to
award, the client and BIO-key will have examined requirements, solutions, goals,
objectives, costs, and benefits.
1.2 Project Methodology
BIO-key follows a five-stage project methodology to ensure that each FireRMS system
satisfies its mission requirements-on schedule and within budget. The five stages of the
BID-key project methodology are incorporated into the Project Schedule. The stages
represent groupings of activities by type and the durations for performance may actually
overlap activities identified in the next stage and beyond. The completion of a stage is not
intended to be a prerequisite for all the activities of the subsequent stages as shown in
Figure 1.
@ 2004 BIO-key International, Inc. All Rights Reserved
12/612004
Page 9 of25
"
~
Figure 1 - Five Stages oftbe BI()-key Projeet Metbodology
1. Contract
Review
2. Require",ent$
Analysis
3. Flnall:u
Project
Schedule
-4. Cr...a Training
Schedule
:i':~~~!i!ti~:,
1. Product
Enhancement
2.lnterfacn
3. Cr..te
Acceptance
Te,lPlen
:~1~.:~~i~,;r:~'
1. ln,lall Soft.ar.
2. Execul.
Training Plan
3. Sy.tam
Acceptanc.
T.,tlng
-4. Commen<::'
Live
Op.r.1Ion.
@ 2004 BIO-key International, Inc. All Rights Reserved
12/612004
Page 10 of2S
~
'8io:~"'
'''-~~
1.3 Project OrganizationIResponsibilities
The responsibilities of the members of the project teams for each organization are
described in the following sections.
1.3.1 BIO-key Project Manager
. Reviews the proposal and fmal contract internally and with the the End User
Agency's Project Manager.
. Directs the project as the BIG-key contact and is responsible for project
performance from initiation to closure, which includes planning, organizing,
managing, and controlling all aspects of the project that relate to BIG-key
deliverables to ensure that project tasks are performed according to the
approved project schedule.
. Coordinates the project kickoff between the End User Agency and BIG-key.
. Reviews the initial project schedule.
. Conducts an initial post-contract site visit/evaluation/review.
. Identifies any known items that may impact the availability of the End User
Agency resources during the project Iifecycle.
. Reviews interface requirements, if any.
. Reviews subcontractor commitments, if any.
. Resolves any discrepancies or conflicts.
. Reviews initial proposed project information and proposed deliverables to
ensure compliance with fmal contracted project configuration.
. Initiates project reporting and filing systems.
. Identifies the resources required for BIO-key project management, such as
work space, telephone, office and copying services, site access, and other
communications, such as e-mail.
. Establishes project change order procedures.
. Resolves training logistics considerations such as schedules and classroom
resources.
. Responds to End User Agency inquiries.
. Obtains written clarification of change requests for interfaces and other
custom development before establishing a development schedule that may be
requested by the End User Agency.
. Monitors critical schedules such as custom development.
. Processes requests for quotes for additional products or services, if any.
<<:> 2004 81O-key Interntional, Ine. AU Rights Reserved
1216n004
Page 11 ons
r
~@J
. Initiates requests for quotes for additional products, change orders, or
services, as needed.
. Processes contract change orders.
. Monitors subcontractor commitments, if applicable.
. Conducts design review sessions between subcontractors and BIO-key
personnel (if required).
. Coordinates BIO-key logistics for all on-site activities.
. Researches alternatives and sources for any contract changes.
1.3.2 End User Agency Project Manager
The Agency's Project Manager will work directly with BrO-key to coordinate all
activities on the Project. This person will provide the technical vision for the
Project and assure that this is consistent with the overall scope of the project. The
Project Manager will be responsible for communications with End User Agency
management and coordinate any support requirements from the executive team.
The Agency's Project Manager should have the qualifications necessary to
function in a project environment and support the following responsibilities:
. Acts as the End User Agency's single point of contact for working with
BIO-key.
. Has sufficient authority and responsibility to make decisions on a day-to-
day basis about the project.
. Coordinates the activities of the End User Agency personnel and
resources.
. Provides sufficient resources to implement the operational use of the
system.
. Secures contract change approvals as required.
1.3.3 End User Agency System Administrator
The System Administrator will be responsible for working with Bro-key during
the installation and configuration of the FireRMS Software. This person must,
with the assistance ofBIO-key and the End User Agency, be capable of managing
the configurations of the Fire RMS System to assure that the FireRMS System
does not have any mismatches of software versions. This person will also provide
general support to client users. This person is typically responsible for system
backups in case data recovery is required.
e 2004 BIO-key InterDDtioDDI, IDC. All Rig/lts Reserved
12/612004
PDge 12 oUS
11
~
The End User Agency's System Administrator should ha\"e the qualifications
necessary to function in a project em-ironment and support the following
responsibilities:
. Collaborates with the BIO-key Technical Consultant for system-specific
training and implementation of backup, recovery, archiving, and general
system activities.
. Monitors and configures the servers, workstations, and other external system
interfaces, such as an external CAD system.
. Monitors database as appropriate.
. Is the main point for contact for user questions and problems.
. Runs and designs reports as needed.
. Troubleshoots system problems as appropriate.
. Maintains and upgrades system configuration and forms as appropriate.
. Installs FireRMS software upgrades as appropriate.
. Serves as liaison for BID-key field service personnel.
. Becomes a knowledge base for System and Interface information to aid end
users as needed.
1.3.4 End User Agency Data Administrator
The End User Agency's Data Administrator is primarily responsible for the
configuration of SQL Server and maintaining the Project data in an SQL Server
environment. This person should be experienced with SQL Server systems and
all of the details surrounding the care and maintenance of this data. Specifically,
this person will monitor database characteristics such as performance,
fragmentation, size, etc.
The Data Administrator should have the following qualifications:
. SQL Server Database knowledge and experience.
. Experience in administering database operations in a distributed client-
server environment.
. Experience with the MicrosoftWindows NT12000 Operating System and
general MS Windows operations and functionality.
. Experience in Microsoft Products such as Access, Excel, PowerPoint, etc.
. Experience in SQL Operations related to SQL Server, FoxPro, and similar
other databases.
@ 2004 RIO-key International, Ine. AU Rights Reserved
121612004
Page 13 of25
r
~
. Experience in executing standard and Ad Hoc reports with report writing
tools such as Access, CRYSTAL, and Excel.
1.3.7 End User Agency's Network Administrator:
The Network Administrator will be primarily responsible for the
configuration of the network and coordinating the system's inclusion in
the corporate network environment. This person should be experienced
with network equipment and all of the details surrounding the care and
maintenance of a Windows NT/2000-based network.
The Network Administrator should have the following qualifications:
. Experience in NT/2000 Network Administration.
. Experience in configuring and monitoring hubs, switches, modems,
and routers.
. Experience in using Network Management Software.
. Experience in Microsoft Windows Operations.
. Experience in diagnosing software and cable related problems.
. Experience in evaluating, reading and configuring baud rates, packet
sizes and structures.
1.3.8 RIO-kcy Technical Consultant
The BI0-kcy Technical Consultant will provide the necessary technical
expertise to implement BIO-key's portion of this project from start to
finish. This includes overseeing all system configuration activities,
providing system administration hands-on informal training, supporting
cutover activities, and installing the System and related software.
@:) 1004 BIO-key InterDationaI, Inc. All Rights Reserved
11/611004
Page 14 oUS
F
~
1.4 Five-Stage Project Methodology in general
In general, BIO-key will incorporate the five-stage project methodology as previously
described in Figure I. The specific stages are described in the following sections. The
tasks and descriptions correspond to the sample project schedule provided as a separate
document.
1.4.1 Define System - Stage I
The process of defining the system ensures that the operational intent defined in
the proposal and the relevant contractual documents, as written, are consistent.
This initial stage begins with a review of the SOW Purchase Agreement with the
End User Agency. This review will establish the conditions and extent of work
to be performed and clarify any questions for expectations of the system.
Experience has shown that most errors, that occur in the define stage, are in
understanding what the system should do, rather than errors in the actual
execution of the system. A poorly engineered requirement, which does not reflect
the intended processing of the system, will cascade into a design or operational
defect. All types of requirements (functional, operational, performance,
application, data, and interface) need to be ana1yzed and understood by the project
team.
Specific tasks and deliverables are described in the following sections.
1.4.1.1 Purchase Agreement/Statement or Work Review
The signed Purchase Agreement is reviewed by BIO-key and the End
User Agency. The Purchase Agreement:
. Functions as the original statement of work reflected in the initial
proposal and proposal addenda.
. Documents specifically the work to be performed.
. Establishes the conditions of work.
. Sets the expectations for the system.
. Is reviewed by the End User Agency and BIO-key to ensure that
the joint project team understands the requirements.
1.4.1.2 Requirements Review with End User Agency
Upon completion of the Purchase Agreement and SOW, BIO-key will
meet with the End User Agency to clarify any outstanding issues. This
process will result in a project baseline and this will allow subsequent
@ 2004 BIO-key International, Inc. All Rights Reserved
12/612004
Page 15 oU5
m"
~
stages to be completed with a mutual understanding between BlO-key and
the End User Agency.
1.4.1.3 Establish Project Baseline
This task represents an internal task whereby the BlO-key Project
Manager confirms that all required materials and services within the SOW
are accounted for and activities are set in place to effect delivery to the
End User Agency pursuant to the project schedule.
1.4.2 Design System - Stage n
During the Design System Stage, the project team reviews the system
configuration and interfaces, which defines the fmal Acceptance Test Plan
("ATP") for the project. The ATP shall insure that the deliverables meet the
Functional Descriptions set forth in Appendix C of this sow.
1.4.3 Build System - Stage III
During the Build System Stage, the project team performs development activities
required to incorporate any specified enhancements to the FireRMS system
functionality and provides the specified interfaces including integration into
FireRMS.
End User Agency pre-installation activities are also completed during this stage in
readiness for delivery for the FireRMS system.
Specific tasks and deliverables are described in the following sections:
1.4.3.1 Pre-installation Requirements
This task represents the activities that the client is required to complete
prior to the commencement of the Delivery Stage and installation of the
FireRMS software. Hardware shall be provided by the End User Agency
or the End User Agency. Computer hardware shall meet or exceed the
specifications outlinjd in Appendix B of this SOW.
Deliverables!
. Appropriate hardware Installed by the End User Agency, if
neccessary .
C 1004 81O-key Iaternatioaal, lac. All Rights Reserved
121612004
Page Hi of25
If
'8i~
'~
1.4.4 Deliver System - Stage IV
During the Deliver System Stage, the system software is delivered, configured,
and initially tested for correct operation. Interface software is delivered and
configured to operate with the existing system. Data, specific to site operations, is
loaded by agency personnel.
1.4.4.1
Install Software
This task identifies the activities involved in the installation of the
software at the agency site and configuring client hardware for training.
The system is checked for correct operation with agency supplied netwOlt
settings and configuration.
Deliverables:
. Software per the Purchase Agreement, including applicable
software licenses.
. Install and configure and test the FireRMS EMS Interface software
on the agency provided FireRMS Server.
1.4.4.5 System Acceptance Test Plan
This task identifies the activities involved in the execution of the A TP and
the subsequent acceptance of the system. With required data loaded by the
agency, the system is tested using a mutually agreed upon systematic test
plan that will insure that the deliverable meet the Functional Descriptions
set forth in Appendix C of this SOW. This paves the way for going live
with commercial use of the system or components. The tests exercised by
BID-key in other Stages are preliminary in nature but ensure that the
system is functional and ready for final client testing.
Goal:
. System Acceptance by the End User Agency.
1.5 Maintain System - Stage V
Maintenance is a vital part of any product or production system. Maintaining the
developed system and providing a mechanism for expansion are both fundamental to
maximizing the system's productive life. Key components of this stage are as follows:
~ 2004 BIO-key International, Inc. All Rights Reserved
12/612004
Page 17 of2S
II
~
1.5.1 Project Wrap up
. After End User Agency acceptance and cut over to live operations,
the procedures specified for project wrap-up complete this stage.
Project wrap-up activities involve tasks that take place after
acceptance and cut over. Maintenance will start at cutover of each
module as it is placed into service. Maintenance will be phased in
for each module. Activities include:
. Resolution of any significant system issues identified prior to
system acceptance.
. Agreed resolution of any minor system issues identified in a punch
list at the conclusion of Acceptance Testing and prior to cut over.
. Resolution of any outstanding invoices or credits associated with
the project implementation.
. Transition of the project to the Support organization.
1.5.2 System Support
The BID-key Project Manager begins this task by reviewing the subsequent
system support procedures with the agency. Calls for system support go to the
BID-key Help Desk and are handled by the support staff.
(:) 2004 BIO-key International, Inc. AU Rights Reserved
121612004
Page III oU5
If
'8i~\
....~O.~
Appendix B - Minimum Hardware Requirements
Clients with more than one fire station, or more than five concurrent users
This wcrilslallcln w. func:tlon
only.adenl
~.lnsl.1ed:
- - FiteRMS 5.0 CIenI
-.FINRMS5.0.td-cln1
(requires Entll(JlriseEdtlan)
R.~lfmare
th..,3to5
--
........
ConnectIon
-.....
H
FnRMS 0._.. Sorvw
~
!!Ill' I
.,"".' I
'.Ji"'-'i~~
~',;;,;~~,.'~.:f'i~ -
iI=[~
WorIIstltlon
Softw_ Instded:
. - SClL Se~ 2000 with
FnRMS o.tlbu4l
.. - FnRMS 5.0 Client
Software required:
SQL Server 2000 (Client Supplies)
FireRMSTM 5.0 Core with Administration Tools
FireRMSTM 5.0 Supplies and InventOl)' add-on
@ 2004 81O-key International, Ine. All Rigbts Reserved
12/612004
Page 19 oUS
l'!
'8i~r>
''''Z..~~~
CAD Interface
~
c::J
Thl&wubl.&tonwllltunctlon
onl,...cIhwIl:
Saftw..lnat....:
--FlreRMS 5.0 Chnl:
RltqUlredlfm(l'l
tt.n3to5
--
El_
CllIlnecticln
Worllst.1on
FIreRMS D.... s.rv...
Software required:
FireRMSTM CAD Interface software
TihttMR CAD Fire~tE,-u Ifttepf'aee (J3fs.;ideEl hy Tilntf8ft)
--
H'"
SIllS . c.ctl.ink s.rv.
() 2004 RIO-key IateMl8t1ouJ, Iae. AU Rights Reserved
121612004
~IMbled:
*. SOL s.v.. 2000 wtltI
FlreRMSD......
-. FnRMSS.OClllnt
/Vcr f'I.8(V4J:,!.GP, '~/I.....
/<.e"N .)'GEM'>"'''' "'= ll>,o-",.y
fI1C-/L 4>1/"_/~> ~
5- }/-'
P8ge 20 of25
~
II
Server and Client PC Requirements
Client Computers and Workstations
Processor Pentium ill Processor 500 MHz or greater
RAM 128 MB (256 MB recommended)
Disk Space 50 MB for program installation
Software Microsoft Windows '98, Windows NT Server 4.0 (Service Pack 4+ installed),
Microsoft Windows 2000 Professional with most current service pack, or
Microsoft Windows XP Professional
CD ROM
Monitor with 800x600 video resolution
Mouse
Microsoft Windo\vs NT Server 4.0 (Service Pack 4+ installed) or Microsoft
Windows 2000 with the most current sef\'ice pack
Peripherals
Nellvork
Operating
System
Database Server
Processor
RAM
Disk
Space
Soft\yare
Peripherals
Printers
Pentium ill Processor 500 MHz or Alpha Processor
256 MB (Recommended RAM "ill increase as concurrent user numbers increase.)
240 MB for Server
35 - 50 MB for OLAP services: approximately 50 MB for typical installations
24 - 36 MB for English Query. approximately 36 MB for lI'pical installations
Microsoft Windows Seryer 2003. Microsoft SQL Server 2000-SP3.
Client computer can use Microsoft XP Professional. Microsoft IE 5.5 or higher
CD ROM
VGA or higher resolution monitor. Super VGA recommended
Microsoft mouse or compatible pointing device
Windows compatible for report printing.
Note: See Microsoftfor SQL Server hardware requirements. Microsoft does not
recommend that SQL server operate on a Domain Controller. Increase in
concurrent users will impact performance. In,'rease hardware requirements to
alleviate performance lag
. Minimum Microsoft SQL Server 2000 (SP3) recommended.
. For running Microsoft SQL 2000, the FireRMS Data Repository, and BIO-key Message
Server, the network should have a dedicated server.
. Hard disk capacity should be consistent with the total record storage requirement of the
department, estimating one gigabyte of storage space per 10,000 incidents. Actual storage
requirements will vary, based on the type of data stored.
Q 2004 8IO-key laternational, lae. All RlgIIts ReseI'Yed
1216nOO4
Page 21 on5
"
'8io:~
....~~.~
BIo-k.~y Message Server
Processor
RAM
Disk Space
Software
Pentium III Processor or greater (Pentium III 300 MHz minimum recommended)
128 MB per processor for one instance of AMS running
2.5 GB disk space minimum
Microsoft Windows NT 4.0 seryice pack 4.0 or greater, or Microsoft Windows NT
2000.
CD ROM
Back-up deyice, such as a tape driyer
Nefworking \\ith TCP/IP
,
Peripherals
. In certain instances, AMS may be installed on the same server as the SQL Server
database. However, BIO-key recommends a separate application server dedicated to
AMS. If multiple instances of the AMS interface software are to be installed, a
separate AMS interface will be required.
. BIO-key AMS is a 32-bit application designed for Windows NT. It supports both
serial and TC/IP connections including Microsoft NT Remote Access Services
(RAS).
@ 2004 BID-key International, Inc. All Rights Reserved
12/612004
Page 22 0125
!
~
Appendix C - Product Descriptions
C-l BIO-key FireRMS EMS Interface
FireRMS EMS Interface for integration with End User Agency FireRMS system.
BID-key will provide the licensed FireRMS EMS Interface software that will allow for
the installation, configuration and testing of the FireRMS EMS Interface software that
will integrate FireRMS with the Healthware EMS data collection system. The "data
string" received from the Healthware system is required to adhere to the B10-key API as
defined in the API technical documentation. The End User Agency is responsible for all
components required of the Healthware system for affecting the interface with the BIO-
key Fire RMS system.
@ 2004 BIO-key International, Ine:. All Rigbts Reserved
12/6/2004
Page 23 of25
I'
~
Appendix D - Change Order Form
BIO-kev SamDle Statement of Work Change Order
Change Order Number: Date: T Change Order POIWIP Submittal Date:
Customer
(City or County, Stata)
End User Agency (if applicable)
(Company Name, Applicable Office Location)
Subcontractor (if applicable)
(Company Name, Applicable Office Location)
Change Order Speclftcallons:
Addnional Software QTY !!EM.
(List products and quantities)
Addnionat Hardware QTY !!EM.
(List products and quantities)
Additional Program/Project QTY !!EM.
Manag&mentSe1V~8S (List products and quantities)
Additionsl Professional Services (Provide detail of services- use additional Daoes if necessary)
Approvals:
End User Aaencv:
signature title date
End User Aaencv:
signature title date
BIO-kev:
sianature titla date
@ 2004 BIO-key International, Inc. All Rigbts Reserved
12/612004
Page 24 of 2S
r
'8i~
I~g
Ii:) 2004 BIO-key International, Inc. All Rigbts Reserved
12/6n004
Page 25 of25
~
~
BIO-key INTERNATIONAL, INC.
Purchase Agreement
Pursuant to this Purchase Agreement (the "Purchase Agreemenf'), with an effective date of December 6.2004, Lorna Linda
University Medical Center whose principal place of business is located at 11234 Anderson Street Lorna Linda. CA 92354-
2871. hereinafter called "Customer", and BIG-key International, Inc., located at 300 Nickerson Road, Marlborough, MA
01752, hereinafter called "BIO-key", hereby agree that the following terms and conditions shall govern the sale and
licensing of the BIG-key equipment, software, and services as well as certain third party applications and services (subject
to additional terms and conditions) set forth in Attachment 1 hereto, the Pricing Attachment.
1. TERM: This Agreement shall commence on the effective date and shall terminate upon completion of all
of the parties' obligations set forth in this Agreement, the Attachments hereto, and all Statements of Work
hereunder, as applicable, unless earlier terminated pursuant to tbis Agreement. Termination of this Agreement shall
not result in a termination of any paid-up software licensees) granted hereunder unless termination is initiated by
BIG-key due to default by Customer.
2. PRICES: Subject to the terms and conditions of this Agreement, the prices of equipment and software purchased
and/or licensed by Customer hereunder shall be as set forth in Attachment 1. The prices for any services to be performed
shall be as specified in Attachment 1 or in any applicable Statement of Work, Professional Services Agreement or other
service agreement(s) attached hereto. The Staternent of WOlX is attached hereto as Attachment 2. The Maintenance
Agreement for B[O-key products is attached hereto as Attachment 3. In the case of conflict between the prices set forth in
Attachment 1 and those in a specific services agreement, the prices in Attachment 1 shall govern.
3. DELIVERY: All products will be delivered F.G.B. Origin. BIO-key shall arrange shipment and insurance unless
Customer directs otherwise in writing. The Customer assumes all risk ofloss upon delivery of the products to the carrier.
4. PAYMENT: Customer, in consideration of the products and services to be provided to Customer, agrees to pay
BlO-key the prices set forth, with regard to products, in Attachment 1, and with regard to services, as set forth in the either
Attachment 1 or the applicable Statement of Work/services agreement (unless payment is being made subject to mutually
agreed upon payment schedule in which case that document will govern). Payment for all products and services furnished
to CustOlOer during the contract period shall be made within thirty (30) days from the date of invoice in accordance with the
following payment schedule:
. 100% of hardware amount upon delivery
. 30% of software and services amoWlt upon signing this agreement
. 30% of software and services amount upon delivery of software
. 30% of software and services amount upon installation of software products*
. 10% of software and services amoWlt upon final acceptance of system
. Customer will be invoiced on a pro-rata basis as each mobile unit is installed, if install exceeds thirty days.
5. TAXES: Prices to Customer do not include taxes. Customer shall pay all taxes, applicable surcharges,
communications fees, etc., assessed upon or with respect to any products or services purchased from BIO-key, except for
taxes imposed on the net income of BIO-key. Customer shall provide to BIG-key any certificate of exemption or similar
document required to exempt any transaction under these terms from sales tax, use tax or other tax liability.
6. ACCEPTANCE: With regard to installation, configuration and/or customization services provided, acceptance
shall occur as set forth in the applicable Professional Services Agreement or Statement of Work. For other software
deliverables, acceptance shall occur upon the successful completion ofBIO-key's then standard procedures and diagnostic
test programs. If no acceptance language is specified acceptance, for payment and or other contrnctual obligations, is when
the specified Deliverables conform to the specifications.
BIO-key International, Inc. Puithase Agmt with Support Svcs vl.0 (2004-12.Q1)
Proprielary & Confidential
Page 1 of 10
F.
~
7. WARRANTY: Any warranty on standard software provided hereunder shall be as set forlh in the applicable
software license and if no period is specified the warranty period shall he 90 days. Any warranty on configured or
customized software to he provided hereunder shall he as set forth in the applicable Professional Services Agreement or
Statement of Work. Any warranties for third party hardware and/or software provided are made strictly on a "pass-through"
basis by BID-key from its third party suppliers, and any evidence of such warranties or disclaimers thereof are contained
within the documentation provided with such hardware and lor software.
8. NO OTHER WARRANTIES: EXCEPT AS SET FORTH IN THIS AGREEMENT, THERE ARE NO
OTHER WARRANTIES, EXPRESS OR IMPLIED, BY OPERATION OF LAW OR OTHERWISE, ON
PRODUCTS OR SERVICES FURNISHED HEREUNDER OR IN CONNECTION HEREWITH. BID-KEY
DISCLAIMS ALL IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A
PARTICULAR PURPOSE.
9. LIMITATION OF LIABILITY: THE WARRANTIES AND REMEDIES PROVIDED HEREIN ARE
CUSTOMER'S SOLE REMEDIES FOR BID-KEY'S LIABILITY OF ANY KIND WHETHER IN CONTRACT
OR IN TORT, ARISING FROM THE PRODUCT OR SERVICES PROVIDED HEREUNDER. IN NO EVENT
SHALL BIO-KEY'S OR ITS SUPPLIER'S LIABILITY TO THE CUSTOMER FOR DAMAGES OF ANY
NATURE EXCEED THE PURCHASE PRICE OF THE PRODUCTS OR SERVICES PROVIDED UNDER
THESE TERMS.
EXCEPT IN CONNECTION CLAIMS ARISING AS A RESULT OF MISAPPROPRIATION OF ANY
INTELLECTUAL PROPERTY PROVIDED HEREUNDER, IN NO EVENT SHALL EITHER PARTY BE
LIABLE FOR ANY SPECIAL, INCIDENTAL, THIRD PARTY, INDIRECT OR CONSEQUENTIAL
DAMAGES OR FOR THE LOSS OF PROFIT, REVENUE, SOFTWARE OR DATA EVEN IF TIIAT PARTY
HAD BEEN ADVISED OF THE POSSIBILITY OF SUCH POTENTIAL LOSS OR DAMAGE. CUSTOMER IS
SOLELY RESPONSIBLE FOR THE PROTECTION AND BACKUP OF ALL DATA AND SOFTWARE USED
IN CONJUNCTION WITH THE PRODUCTS. Any action by either party must he commenced within one (I) year
after the cause of action accrues, except in the case of non-payment.
10. SOFTWARE LICENSE: Customer's right to use any software products provided hereunder shall he as set
forth in the license agreement accompanying such software products. In the case of any products customized or
otherwise modified under a Professional Services Agreement or Statement of Wark, the terms of the license for the
underlying software product shall continue to govern unless expressly modified in writing in the Professional
Services Agreement or Statement of Work.
11. DATA AND PROPRIETARY RIGHTS: Portions of data supplied by BIO-key relating to its products are
proprietary and will he so marked. Customer shall abide by such markings. BIO-key retains for itself exclusively all
proprietary rights (including manufacturing rights) in and to all designs, engineering details and other data
pertaining to products provided to Customer. and to all discoveries, inventions, patent rights. products and all other
property rights arising out of work done solely by BlO-key or jointly with Customer. A copyright notice on any data
does not by itself constitute or evidence a publication or public disclosure.
12. TERMINATION: Either party may terminate this Agreement upon written notice to the other if: (i) a
material violation of this Agreement by the other party is not remedied within thirty (30) days after notice of the
violation; (ii) the other party admits in writing its inability to pay its debts generally as they become due, or executes
an assignment for the benefit of creditors or similar document; or (Hi) a receiver, trustee in bankruptcy or similar
officer is appointed for the other party's property (each, a "termination for default").
Tennination for non-appropriation of funds - Government customers have the right to cancel this Agreement if the
moneys necessary to fund the Agreement are revoked or become unavailable prior to delivery of the Deliverable.
Termination by Customer for BIO-key default - Customer has the right to cancel this Agreement if material
deficiencies in equipment and/or service are reported in writing to BID-key during the acceptance testing period or a
warranty period and such deficiencies are not remedied within thirty (30) days of written notice of such deficiencies.
BI0*ey Intemational, Inc. Purchase Agmt with Support Svos v1.0 (2004-12.Q1)
Proprietary & Confidential
Page2of10
~
~
Termination by BIO-key for Customer default- BIO-key may terminate this Agreement upon written notice 10
Customer if: (i) Customer fails to pay when due any amount payable under this Agreement or any other agreement
with BIO-key, which amount is not the subject of a bona fide dispute between the parties; or (ii) a majority interest
of the equity or assets of Customer is transferred, or this Agreement is assigned, without the prior written consent of
BIO-key.
Termination shalI not exclude other remedies for failure of a party to perform its obligations.
The failure of either party to exercise in any respect any right provided for herein shalI not be deemed a waiver of
any right hereunder.
13. EFFECT OF TERMINATION: In the event of termination of this Agreement, BIO-key's perfonnance hereunder
shalI irnmediately cease, and BIO-key shall prepare a fmal invoice reflecting the services rendered and any products
delivered as of such date. Customer agrees to pay BIO-key in accordance therewith for services actualIy furnished and any
products delivered. If this Agreement is terminated by BIO-key due to default by Customer, all sotlware licenses shall also
automatically terminate upon such termination and Customer shall immediately cease using the sotlware. If such sotlware
licenses are not terminated, they wilI continue unless and until terminated in accordance with their tenns. Except as
specifically set forth herein the payment, warranty, limitation of liability and confidential information provisions hereof wilI
survive any termination of this Agreement.
14. CONFIDENTIAL INFORMATION: Customer agrees to maintain in strict confidence and, except as provided
herein, not to disclose, reproduce or copy any Software, or materials, or specifications which are marked confidential or
proprietary and are provided to Customer hereunder.
15. STANDARD ORDER PROCEDURE: Products and services shall be ordered by written purchase orders and
shall be governed by this Agreement and, in the case of services any applicable services agreements. Orders shall include
the quantity, Product(s), services, applicable price, shipping instructions, and requested delivery date. Orders shall be subject
to acceptance by BIO-key and delivery schedules established in accordance with Product availability and Customers credit
status. BIO-key may ship before the scheduled shipment date, but not to arrive earlier than Customers requested delivery
date. In the event Customer's purchase order contains any additional terms or conflict with any tenns and conditions
contained herein or in this Agreement, this Agreement shall govern and acceptance of such purchase order is expressly
conditioned upon this Agreement.
16. ASSIGNMENT: Neither party shall assign any right except for the right to receive payment or delegate any
obligation under this Agreement without the prior written consent of the other party which consent shall not be
unreasonably withheld or denied.
17. RESTRICTED RIGHrS LEGEND: If an Order contains a notation that products or services are intended for use
under a federal government contract, such products or services shall be subject to the folIowing that the BIO-key sotlware
(including documentation) is provided witlt Restricted Rights under DF ARS 252.227-7013( c) (1 Xii) and related sections, if
supplied to DoD Government agencies, or under FARS 52.227-19 and under FARS 52.227-14 if supplied to civilian
Government agencies. Use, duplication or disclosure by the Government is subject to restrictions as set forth in the
Regulations referenced herein. The ContractorlManufacturer is BIO-key International, Inc., 11460 Cronridge Drive, Owings
Mills,MD21117.
18. EXPORT: Customer will not knowingly trnnsfer to parties that will subsequently re-export Products to
embargoed countries or allow export, directly or indirectly, of any product acquired under this Agreement without first
obtaining an export license from the US Department of Cornmerce or any other agency or departmenl of the United States
Government, as required.
19. FORCE MAJEURE: Neither party shall be liable to the other party for any alleged loss or datnages resulting from
delays in perfonnance (including for BIO-key, loss or datnages resulting from delivery of the Products being delayed)
caused by any act of God, fire, casualty, flood, war, failure of public utilities, injunction or any act, exercise, assertion or
requirement of governmental authority, earthquake, labor strike, riot, accident, shortage, delay in trnnsportation or any other
cause beyond the reasonable control of the party invoking this provision, and if such party shall have used its best efforts to
BIO-key Intemational, Inc. Purchase Agmt with Support Svcs v1.0 (2004-12<J1)
ProprietaJy & Confidential
Page 3 of 10
I'
~
avoid such occurrence and minimize its duration and has given prompt written notice to 1he o1her party, 1hen 1he affected
party's perfonnance shall be excused and 1he time for perfonnance shall be extended for 1he period of delay or inability to
perform due to such occurrence.
20. NOTICE STATEMENT: All notices and demands of any kind which ei1her party may be required or desire to
serve upon 1he o1her under 1he terms of 1his Agreement shall be in writing and shall be served by personal service or by
registered mail, postage prepaid, at 1he addresses set for1h at 1he beginning of 1his Agreement except 1hat any notice to BIO-
key shall also be sent to Legal Departtnent at 1he address set for1h at 1he beginning of 1his Agreement.
21. ENFORCEABILITY: If any provision of 1hese terms shall be held to be invalid, illegal or unenforceable, 1he
validity, legality and enforceability of1he remaining provisions shall in no way be affected or impaired 1hereby.
22. CHOICE OF LAW: This Agreement shall be governed by 1he laws of 1he State of California excluding its
conflict of laws rules.
23. ENTIRE AGREEMENT: This Agreement. toge1her wi1h any attached Exhibits, Schedules or Amendments,
constitutes 1he entire agreement between 1he parties hereto pertaining to 1he subject matter hereof, and any and all written or
oral agreements heretofore existing between 1he parties hereto are expressly canceled and/or superceded. This Agreement
shall prevail notwi1hstanding any variance wi1h terms and conditions of any purchase order. Any modifications of 1his
Agreement must be in writing and signed by a duly au1horized officer ofOO1h parties hereto.
IN WITNESS WHEREOF, 1he parties have caused 1his Standard Sales Agreement to be executed by 1heir duly au1horized
representatives on 1he dste(s) shown below.
RIO-KEY INTERNATIONAL, INC. LOMA LINDA UNIVERSITY
~ . . f MEDICAL CENTER
Byl)(f'-f~J C-t. , -.fi ___ By: J~ t g~
Name: -II",laul'lwlllev;::'l2nlVtl6 ::.J'~bll.,I( Name: hNIQ E 'KJN'Ttlul2.A
Title: Chief Financial Officer
Date: ~/p/ oS-
Title: Sr. Vice President
Date:
BIO<ey International, Inc. Purchase Agmt with Support Svcs vl.0 (2004-12.01)
Proprietary & ConfidOl1lial
Page4of10
~
ATfACHMENT 1
Pricing Schedule
See BIO-key "Official Quotation Attachment 1" number 38347.85 dated December 6,2004 in the total
amoWltof$7,700.00 attached hereto and made a part hereof.
BIQ.key Intemational. Inc. Pun:hase Agmt with Support Svos v1.0 (2004-12'()1)
Proprietary & Coofidenlal
Page 5 of 10
f@J
ATTACHMENT 2
Statement of Work
See BIO-key Statement of Work entitled "Lorna Linda University Medical Center and City Of San
Bernardino, CA" dated October 19, 2004 attached hereto and made a part hereof.
BIQ.key Intemational, Inc. Purthase Agmt wi1I1 Support Svcs v1.0 (2004-12.(J1)
Proprietary & ConIiden1iaI
Page 6 of 10
~
ATTACHMENT 3
BID-key International, Inc.
Mobile Government Division
SUPPORT AND MAINTENANCE AGREEMENT
This aQreement ("Agreement") is made by and between SIO-key
International, Inc. ("SIO-kef) and the customer identified at the end
of this Agreement ("Customer') and is dated as of the effective date
as defined herein. '
Recitals.
A. Customer has licensed and/or purchased the Product(s) (as
defined below) from SIO-key under separate agreement (the
"Purchase Agreement") and desires to obtain support and
maintenance services for such Products.
S. ,sIO-key desires to provide such support and maintenance
serviceS for such Product(s) upon the terms and conditions set forth
in this agreement.
Therefore, for good and valuable consideration SIO-key and
Customer agree as follows:
Section 1. Definitions.
1.1 "Error" means any failure of a Product(s) to conform in any
matenal respects to Its published and/or provided documentation.
1.2 "Product s ' means the SIO-key Product(s) listed on Exhibit A.
The Product s indudes any and all Enhancement Releases
Maintenance Releases or Patches delivered to Customer under this
Agreement or the Purchase Agreement. Items not supplied by SIC-
key do not qualify as Products hereunder.
1.3 "Enhancement Release" means a new release of a Product with
new features and/or functionality or improved performance for which
a separate new version upgrade fee is not charged.
1.5 "Maintenance Release" means a new release of a Product that
incorporates Patches and/or other maintenance changes.
1.6 "Patch" means an interim piece of code released to supplement
a Product that typically fixes High Priority Errors between
Maintenance Releases.
1.7 "Worikaround" typically means a set of procedures that a
Customer foUows to circumvent or mitigate the impact of an Error.
The Error still eXists. A Worikaround may be provided at BIO-key's
discretion in lieu of a Patch for a specific Error.
1.8 Other Defined Terms. Except as expressly defined in this
Agreement, capitalized terms shall have the meaning ascribed to
them in the Purchase Agreement.
Section 2. SCODe of Support And Maintenance Services.
2.1 Services Provided. During the term of this Agreement. for so
long as Customer subscribes to the applicable SIC-key Product
maintenance program and timely pays therefore. and for so long as
SIO-key makes support and maintenance services for the Product(s)
generally available to its customers, SIO-key shall support the
Product(s) by providing the services described in the following
paragraphs of this Section 2. Support and maintenance services are
subject to change at SIO-key's option provided that support and
maintenance terms are so modified for all similariy situated Product
maintenance subscribers. SIO-key has no obligation to correct or
support Errors arising from Customers misuse, improper use,
alteration (other than by an SIO-key representative), or damage to
th~ Product(s) Including, without limitation, by electrical power
failures or surges, or Customers combining or merging the
Product(s) with any hardware or software not identified as compatible
BIO-key International, Inc. Purchase Agmt with Support Svcs v1.0 (2004-12.Q1)
Proprielaiy & Confidential
by SIC-key, or any other Errors not resulting from normal wear and
tear.
2.2 Technical Suooort. SIC-key will provide telephone technical
support regarding use of the Product(s) and response to Errors to
Customers Support Contacts designated under Section 2.7.2. SIC-
key technical support representatives will be available by telephone
Monday through Friday from 8:00 a.m. to 6:00 p.m. ET. During off-
hour~, in connection with High Priority situations as described in
Section 2.3 below, an SIC-key technical support representative will
endeavor to retum Customers call within four (4) hours.
2.3 Resoonse Priorities. SIC-key will assign all Customer requests
for Error support one of two response priorities that will dictate the
timing of the response as follows:
Hioh Prioritv. A major feature/function of the Product(s) is not
working or the system integrity Is at risk. SIO-key will attempt to
provide a Worikaround or Patch within three (3) business days of
Customers report of the problem. If the Worikaround or Patch
Cl!nnot be provided within the three (3) business days, SIC-key
Will dedicate resources to the problem resolution and will inform
Customer on a periOdic basis of the resolution status.
Low Prioritv. The Customer has a problem that is not seriously
Impacting the Customers workflow, I.e., any problem that does
not meet the above standard for "High Priority". SIO-key will
assess, in good faith, the timing for the provision of a
Workaround or Patch for such problem, whether in a future
Maintenance Release, Enhancement Release or earlier. When
such determination is made, SIC-key will notify Customer of the
results of the status evaluation, which could include delaying
repair olthe error until a future planned release.
2.4 Subse<juent Releaselsl. During the term of this Agreement,
SIC-key Will send Enhancement Releases and Maintenance
Releases to Customer when made generally commercially available
by SIO-key to Its customers. Each Enhancement Release
Maintenance Release and Patch delivered by SIO-key under this
Agreement IS subject to the provisions of the Purchase Agreement
and shall be automatically deemed to be covered by all applicable
Product license terms.
2.5 Preventative Maintenance. BIO-key may, at it sole option,
schedule technical service telephone calls or visits for the purpose of
Product inspection or preventative maintenance.
2.6. Customer Notification. BIO-key's obligations to provide the
assistance specified in this Section 2 are conditioned on Customers
prompt notification to SIC-key of the problem that provides SIO-key
With Information suffiCient to Identify the problem. Such information
may Include, but not be limited to, error diagnostic messages,
dlag~ostlc memory dumRs, operator console logs, data file dumps,
application program listings, and a written explanation of the
problem.
2.7 Customer Coooeration and Suooort Contacts.
2.7.1 Customer Cooperation. Customer acknowledges that
SIO-key may not be able to resolve an Error If Customer does not
cooperate with and assist SIO-key in resolving the Error.
2.7.2 Support Contacts. SIO-key shall only be required to
receive communication from a Customer designated Support contact.
Customer will designate three (3) authorized Support Contacts and
agrees that each Support Contact will be knowledgeable in all
aspects of the Customer's operating environment in which the
Page 7 of 10
~
Product(s) are being used. Customer will provide all requested
information about each of its Support Contacts by completing the
attached Authorized Support Contacts form, but may change
designation of the contacts in writing.
Section 3. Support And Maintenance Fees.
3.1 Reauired Coveraae. All Product(s) to be covered by this
Agreement on the effective date of this Agreement must be the then
current Product(s) furnished by BIO-key. Thereafter, Customer must
remain within at ieast one new Release of the Product.
3.2 Annual Support and Maintenance Fee. Customer shall pay an
annual support and maintenance Fee at BIO-key's rate in effect at
the beginning of each one-year term of this Agreement. The annuai
support and maintenance Fee in effect as of the effective date of this
Aweement is set forth in Exhibit A hereto. Payment shall be due
Within thirty (30) days of receipt of invoice by Customer. If Customer
fails to pay such invoice within thirty (30) days, or the support and
maintenance agreement lapses for any other reason, a reinstatement
fee may be charged in addition to the annual support and
maintenance fee. If this Agreement terminates or Customer
discontinues maintenance for any reason, and then subsequently
desires (with BIO-key's permission) to purchase or reactivate
maintenance in the future, such repurchase or reactivation will be at
the prevailing charges at the time of repurchase or reactivation.
However, in the event that the Product has been updated or replaced
by BIO-key in the interim period, BIO-key will have to install the
new/updated Product for which the Customer could incur an
installation charge and a license charge.
3.3 Additional Support and Maintenance Fees. If after the effective
date of this Agreement, Customer either purchases additionai
Products or Product iicenses from BIO-key, Customer shall pay the
applicabie additional support and maintenance fee, pro-rated in order
to reflect how much is then remaining in the current one year term.
Section 4. Disclaimer Of Warranties. THIS IS A SERVICES
AGREEMENT. THERE ARE NO WARRANTIES, EXPRESS OR
IMPLIED, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED
WARRANTY OF MERCHANTABILITY OR FITNESS FOR A
PARTICULAR PURPOSE OR IMPLIED WARRANTY ARISING OUT
OF COURSE OF PERFORMANCE, COURSE OF DEALING, OR
USAGE OF TRADE.
Section 5. Term and Termination.
5.1 Term. The effective date of this Agreement shall be the date it
is executed by Customer which must occur no later than the date of
expiration of the appiicable warranty period. if any, for the Product(s).
If Customer does not execute the Agreement before such date, BIO-
key shall have the right to inspect the Product(s) at Customer's
expense to insure it is in good operating order, or impose other
reasonable conditions, before ~ffering this Agreement. The term
of this Agreement shall be one year. No Agreement will become
effective until countersigned by BiO-key.
5.2 Renewal. This Agreement shall be renewed for successive one-
year terms only upon written notification received from Customer
within thirty (30) days of the expiration date of the then current term
of this Agreement. All annual support and maintenance fees are
subject to change at BIO-key's option.
5.3 Termination. This Agreement will terminate: 1) upon the
expiration of the then current term of this Agreement and timeiy
receipt by one party of the other's decision to not renew this
Agreement; 2) at BiO-key's election, upon failure of Customer to pay
support and maintenance fees when due; or 3) upon thirty (30) days
prior written notice if either party has materially breached the
provisions of this Agreement and has not cured such breach within
such notice period. Termination of this Agreement for any reason
shall not relieve Customer from any remaining obiigations under this
Agreement, including but not limited to, the payment of any amounts
due nor shall it affect any additional remedies that BID-key may have
at law or in equity. Upon termination of this Agreement, BIO-key
may, at its option, declare the entire amount of the unpaid baiance
due under this Agreement to be immediately due and payable.
Section 6. Miscellaneous.
6.1 Miscellaneous Provisions. Other provisions are contained in
Scheduie 1 to this Agreement. It is understood and agreed that
Customer is obtainin~ the support and maintenance described herein
for and on behalf of Its contractor, the City of San Bemardino, which
contractor is the "End User Agency' described in the Statement of
Work by and between Customer and BID-key related to this
Agreement, and that BIO-key will provide the support and
maintenance described herein to and for said "End User Agency."
6.2 Schedules And Exhibits. Each of the exhibits and schedules
listed below shall be incorporated into and shall for all purposes be
deemed a part of this Agreement:
Exhibit A - Support And Maintenance Fee Schedule
Schedule 1 - Other Provisions
IN WITNESS WHEREOF, the parties hereto each acting with proper authority have executed this Agreement as indicated below.
BIO-KEY INTERNATIONAL, INC,
By:
Name: (Print)
Title: Chief Financial Officer
Date:
BI().key Intemalional, Inc Purthase Agmt with Support Svcs v1.0 (21J04..12.Q1)
Proprietary & Confidential
CUSTOMER: Loma Linda University Medical Center
By:
Name: (Print)
Title:
Date:
l:>,b.,IoJIQ E. r:Dm-w1'lA
\j Kt" rpQ.~ Ibm,
Page 8 of 10
~
SUPPORT AND MAINTENANCE AGREEMENT
EXHIBIT A
SUPPORT AND MAINTENANCE FEE SCHEDULE
CURRENT PRODUCT SUPPORT AND MAINTENANCE
PRODUCT LIST PRICE FEE AS OF EFFECTIVE DATE
BIO-kev FireRMS EMS Interface $3,000.00 $600.00
Customer shall pay the Support and Maintenance Fees to SIC-key within thirty (30) days of execution of this Agreement.
All annual Support and Maintenance Fees are subject to change at SIC-key's option.
The above fees do not include any applicable taxes levied or imposed now or hereafter by any governmental
authority on the services to be provided hereunder or any component thereof (such as the Releases), which taxes
shall be paid by Customer.
This Exhibit is hereby approved and accepted:
BID-KEY INTERNATIONAL, INC. CUSTOMER: Lorna Linda University Medical Center
300 Nickerson Road 11234 Anderson Street
Marlborough, MA 01752 Loma Linda. CA 92354-2871
By:
Name: (Print)
Title: Chief Financi Officer
Date: Date:
BI01<ey International, Inc. Purchase Agmt with Support Svcs vl.0 (2004-12.01)
ProprielaJy & Conldential
Page9of10
r--
~
SUPPORT AND MAINTENANCE AGREEMENT
OTHER PROVISIONS
1. Excused Performance: Force Maieure. If the performance of
this Agreement is adversely restricted by reason of any circumstances
beyond the reasonable control and without the fault or negligence of the
party affected, then the party affected, upon giving prompt written notice
to the other party, shall be excused from such performance on a day-to-
day basis to the extent of such restriction: provided, however, that the
party so affected shall use all commercially reasonable efforts to avoid
or remove such causes of non-performance and both parties shall
proceed whenever such causes are removed or cease.
2. Exclusion of Certain Claims. IN NO EVENT SHALL BIO-KEY
BE LIABLE (WHETHER IN TORT OR CONTRACT, UNDER STATUTE
OR OTHERWISE) FOR ANY INDIRECT, SPECIAL, CONSEQUENTIAL
OR INCIDENTAL DAMAGES, INCLUDING WITHOUT LIMITATION
DAMAGES FOR LOSS OF PROFITS, BUSINESS iNTERRUPTION,
LOSS OF INFORMATION AND THE LIKE, ARISING OUT OF ITS
PERFORMANCE OR NONPERFORMANCE OF THIS AGREEMENT
OR THE USE, INABILITY TO USE OR RESULTS OF USE OF THE
PRODUCTS, EVEN IF BID-KEY HAS BEEN ADVISED OF THE
POSSIBILITY OF SUCH DAMAGES.
3. Limitation of Liabilitv. BID-key's liability (whether in tort or
contract, under statute or otherwise) with regard to this Agreement or
any Product(s) or other items fumished in connection with this
Agreement shall in no event exceed the Support And Maintenance Fees
paid by Customer to BID-key under this Agreement.
4. Eouitable Relief. Each of Customer and BID-key
acknowledges that damages will be an inadequate remedy if the other
violates the terms of this Agreement, or otherwise fails to perform its
obligations hereunder. Accordingly, subject to Section 1 of this
Schedule, each of them shall have the right, in addition to any other
rights each of them may have, to obtain in any court of competent
jurisdiction, temporary, preliminary and permanent injunctive relief to
restrain any breach, threatened breach, or otherwise to specifically
enforce any of the obligations in this Agreement.
5. Waiver. No waiver of or with respect to any provision of this
Agreement, nor consent by a party to the breach of or departure from
any provision of this Agreement, shall in any event be binding on or
effective against such party unless it be in writing and signed by such
party, and then such waiver shall be effective only in the specific
instance and for the purpose for which given.
6. Caotions and Headinas. The captions and headings are
inserted in this Agreement for convenience only, and shall not be
deemed to limit or describe the scope or intent of any provision of this
Agreement.
7. Severabilitv: Invalidi!\,- If any provision of this Agreement is
held to be invalid, such invalidity shall not render invalid the remainder
of this Agreement or the remainder of which such invalid provision is a
part. If any provision of this Agreement is so broad as to be held
unenforceable, such provision shall be interpreted to be only SO broad
as is enforceable.
8. Assianment. Customer shall not assign any of its rights under
this Agreement without the prior written consent of BIO-key. This
Agreement shall be binding upon, inure to the benefit of and be
enforceable by the parties and their respective successors and assigns.
9. Notices. Any notice or ather communication under this
Agreement given by either party to the other party shall be deemed to
be properiy given if given in writing and delivered (i) by facsimile
transmission (receipt confirmed) or (ii) mailed (retum receipt requested),
properiy addressed and stamped with the required postage, or (iii) sent
by an ovemight express courier, to the recipient at the address identified
BI01<ey Internalonal, Inc. Purchase Agrnt with Support Svcs v1.0 (2004-12-01)
Proprietary & Confidential
in its signature block to this Agreement or, if no such address is
provided, as specified in writing by one party to the other. Either party
may from time to time change its address by giving the other party
notice of the change in accordance with this Section.
10. Entire Aareement: Amendments. This Agreement constitutes
and embodies the entire agreement and understanding between the
parties with respect to the subject matter hereof and supersedes all prior
or contemporaneous written, electronic or oral communications, agree.
ments or understandings between the parties with respect thereto. This
Agreement may not be modified or amended except by a written
instrument executed by the parties.
Page 10 of10