HomeMy WebLinkAbout14-Management Information Services
CITY'OF SAN BERNARDINO - REQUEST FOR COUNCIL ACTION
From:
JANIS INGELS,
DIRECTOR OF MIS
ADMINISTRATION/MANAGEMENT
INFORMATION SERVICES
June 24, 1997
Subject: ANNUAL MAINTENANCE OF OPTICAL
IMAGING HARDWARE AND SOFTWARE
Dept:
Date:
c~ 7IG/HAL JUN 26 1997
Synopsis of Previous Council action:
08-21-95 - EDA Commission approved purchase of an optical document
imaging system for Police and City Clerk departments.
01-22-96 - Council approved purchase of optical document imaging
for the Finance Department.
Resolution #96-20
07-15-96 - Council approved first annual software maintenance
agreement with Adaptive Information Systems.
Resolution #96-214
Recommended motion:
ADOPT RESOLUTION
Contact person:
JANIS INGELS
Phone:
384-5010
Supporting data attached: STAFF REPORT, AGREEMENTS Ward:
FUNDING REQUIREMENTS:
Amount: $41,467.83
Source: (Acct. No.)
679-251-5172
Acct. Descri
UIPMENT
Finance:
Council Notes:
Res 97- i (jq
~ 5'u~~ ~ IllicU<.I{o~ (IL( 171;7(")3 "5ui>6.~'T
1 /7 /97
75-0262
Agenda Item No. ILl
C.lTY OF SAN BERNARDINO - REQUEST FOR COUNCIL ACTION
STAFF REPORT
The City's optical document imaging system software was purchased
from Adaptive Information Systems (AIS) August 1995.
The imaging system consists of multiple servers in MIS and a large
jukebox for optical storage. There are scanning stations and
a number of retrieval stations located in the Police, City Clerk,
and Finance departments.
The software is proprietary and can only be maintained by AIS.
This is the second annual maintenance agreement.
97/98 Annual Imaging Software Maintenance is $41,467.83.
75.0264
SCHEDULE A
SCHEDULE A
cay <II Son Bomordlno (07101/97 - OllI3OI98l
1nvoiCO RoMwIng Through_ (oIp/lII_ttvough8l3Olll9l
Annual
I WomIiff - Ust Maintenance - -
DoI8 Eui sin Price PrIco Price Months
_re
553 1011195 6/1195 8I3OIll9 ALPHA SERVER looo~ 0 1 0.00 2,360.00 2,360.00 12
553 1011195 6/1195 _ ADD'l JUKEBOX DRIVE 0 1 0.00 900.00 900.00 12
553 1011195 6/1195 _ A-8867-S18014 JUKEBOX 0 1 0.00 8,000.00 8,000.00 12
576 511/97 8130197 _ FujItsuSell_M3096EX 0 1 0.00 900.00 750.00 10
576 511/97 8130197 _ _KF_7300-1201 0 1 0.00 250.00 208.33 10
553 1011195 6/1195 _ FUjitsuSell_M3Oll6EX 0 3 0.00 2,700.00 2,700.00 12
553 1011195 6/1/96 _ _KF.e275-1501 0 3 0.00 1,500.00 1,500.00 12
SpocIaI ~nllor 1 yoor on 3 Fujitsu 0.00 0.00 0.00
SelI_ & 3 _ Corda 0.00 -4.200.00 -4,200.00 12
0.00 0.00 0.00
0.00 0.00 0.00
24x7~4ho<1'-onIyon 0.00 0.00 0.00
ALPHA SERVER looo~ 0.00 0.00 0.00
A-8867-S18014 JUKEBOX 0.00 0.00 0.00
0.00 0.00 0.00
0.00 0.00 0.00
0.00 0.00 0.00
0.00 0.00 0.00
0.00 0.00 0.00
0.00 0.00 0.00
0.00 0.00 0.00
0.00 0.00 0.00
0.00 0.00 0.00
0.00 0.00 0.00
0.00 0.00 0.00
0.00 0.00 0.00
0.00 0.00 0.00
0.00 0.00 0.00
0.00 0.00 0.00
0.00 0.00 0.00
0.00 0.00 0.00
0.00 0.00 0.00
0.00 0.00 0.00
0.00 0.00 0.00
0.00 0.00 0.00
0.00 0.00 0.00
0.00 0.00 0.00
0.00 0.00 0.00
0.00 0.00 0.00
0.00 0.00 0.00
0.00 0.00 0.00
0.00 0.00 0.00
0.00 0.00 0.00
TOTAl HARDWARE MAINTENANCE 0.00 12410.00 12,218.33
_re
553 1011195 6/1/96 _ VlSIflOW 2.0 35-C0NCURRENTWF 0 35 0.00 12,900.00 12,900.00 12
553 1011195 6/1/96 _ VlSIFlOW COMMIT (lARGE OlUj 0 1 0.00 1,500.00 1,500.00 12
553 1011195 6/1/96 _ VlSIFlOW APP\.lCATION BUIlDER 0 1 0.00 750.00 750.00 12
553 1011195 6/1/96 _ VlSIFlOW V2.0 FORM GENERATOR 0 1 0.00 300.00 300.00 12
553 1011195 6/1/96 _ VlSIflOW JOB SEP. & BARCODE 0 1 0.00 600.00 600.00 12
553 1011195 6/1/96 _ SQl SERVER FOR NT SINGLE SERY 0 3 0.00 3,155.00 3,155.00 12
553 1011195 6/1/96 _ SOl SERVER VS.O NT 40 ClIENT 0 40 0.00 1,000.00 1,000.00 12
553 1011195 6/1/96 _ OTG DISK EXTENDER JUKEBOX 0 1 0.00 4,600.00 4,600.00 12
553 1011195 6/1/96 _ VlSIFlOW FUll TEXT SEARCH 0 1 0.00 1,275.00 1,275.00 12
0 0 0.00
676 511/97 8130197 _ V_WFCOncurrent 0 1 0.00 250.00 208.33 10
576 511/97 8130197 _ 1IIslFIow- SelIn S_ O 1 0.00 750.00 625.00 10
576 511/97 8130197 _ W_NT3.51 0 20 0.00 106.00 88.33 10
676 511/97 8130197 _ IIIslFIow Forms Recognition ImpoIt Utility 0 1 0.00 525.00 437.50 10
576 511/97 8130197 _ OCR lor Forms Full Procosslng 0 1 0.00 1,710.00 1,425.00 10
576 5/1/97 8130197 _ OCR HInd PrInt Rocognillon Engine I 0 1 0.00 720.00 600.00 10
576 5/1/97 8130197 _ OCR OOBC llrivor 0 1 0.00 18.00 15.00 10
605 11/1/96 2/1/97 _ V_WF concurrent 0 3 0.00 750.00 1,000.00 16
0.00 0.00 0.00
24 X 7 ~ 4 hour phone oupporl 0.00 0.00 0.00
only on 0.00 0.00 0.00
OTG 0lSK EXTENDER JUKEBOX 0.00 0.00 0.00
0.00 0.00 0.00
TOTAl SOFTWARE SUPPORT 0.00 31109.00 30,679.17
TOTAl 0.00 43,519.00 42,897.50
~nl OIl8TunoOn 0.00 1,429.67 1 429.67 12
TOTAl RENEWAl 0.00 42 089.33 41,467.83
customer Pogo 1 CitysbJds
a, License and Service Agreement
This Purchase, License and Service Agreement is made and entered into by and between Adaptive Infconation Systems, Inc. ("Adaptive'), located at 26001 Pala,
Mission Viejo, CA, and City of San Bemardino,_ (hereinafter 'Customer")
Located a\:_300 North '0' Sb'eet,_ City_San Bernardino, State _CA. Zip 92418.
Adaptive and Customer hereby agree as follows:
This 'Agreemenr consists of this signabJ'e page, the General Terms and Conditions, those Attachments listed below which are designated by Custom81's initials
(the 'Attachments'), all Schedules referenced and all attachments. All references to 'Agreemenr shall include this cover page, the General Terms and Conditions
and all such Attachments and Schedules. All fubJ'e orders from Customer to Adaptive shall be govemed by the terms and conditions referenced herein and shall
become effective upon accoplance by an authorized Adaptive employee.
Attachments
Custom81's Initials
. Software S\4lPOI"I Attachment (together with Schedule A)
. Harct.vare Maintenance Attachment (together with Schedule A)
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This Agreement constitutes the entire agreement between the parties on the subject hereof and supersedes all prior or contemporaneous agreements, negotiations,
represenlations and proposals, \Mitten or oral. This Agreement does not operate as an accoplance of any confticting terms and conditions and shall prevail over
any confticting provision of any purchase order or any other insrument of Customer, it being understood thai any purchase order issued by Customer shall be for
Custome(s convenience only. Acknowledgment of a Cus\omel's PlI"Chase Order by Adaptive shall not constitute acceplance of any such additional or different
tenns and conditions. This Agreement may only be awarded, modified, supplemented, or deviated from by a \Miting executed by an authorized Adaptive employee
and Customer. By executing this Agreement. Customer acknowiedges that it has reviewed the terms and conditions incorporated into this Agreement and agrees to
be legally bound by the same.
Adaptive Information Systems, Inc.
By f't.~~~~ .
/
(Type or print name): CHI!/(roI'Jlf~ .THILLENKURb--
Customer
By:
(Type or print name):
Title: DII(€L. .n,e fPF tp~LA-r/t'AI.f
Date: .J u~E /~ / 1J9 'J
Titie:
Date:
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COVER.csa
General. These General T enns and Conditions are intended to provide for tenns that are convnon to the Standard Software License Altachment,
the Software Support Attaclunent, the Professional Services Attaclunent. the Hardware Purchase Attaclunent, the Hardware Maintenance
Attachment. and any other attaclunents and schedules which incorporate these tenns and conditions. Accordingly. in the case of any conflict
between the General T enns and Conditions and any other Attachment or Schedule. the General Terms and Conditions shall con1rol and govem.
unless otherv.ise expressly stated to the conlrary.
2. LIMITATIONS OF LIABILITY. Except as expressly provided in any wamlnty contained in the Attachments or as expressly provided by law.
Adaptive shall not be liable lor any loss or damage claimed to have resulted from the use. operation or performance of the Sof\ware, the Hardware,
the Support Services. the Services (desaibed in the Professional Services Attachment), the Maintenance Services, and any other products.
services and software provided in this Ageement (collectively, the 'Products'), regardless of the form of action. In no event shall Adaptive be
liable to Customer lor (a) any special. indirect. incidental or consequential damages, even if Adaptive has been advised of the possibility thereof,
(b) any damages resulting from latent defects, loss of data or profits. or (0) any claim whether in conlract or tort, that arose more than one year prior
to institution of su~ thereon. or (d) any actual damages (except damages resulting from goss negligence or intentional misconduct) in excess of the
Product prices and license fees paid hereunder. Customer a!Tees that no representation, W8mlnty. promise or a!Teement of any Adaptive
representative shall be binding on Adaptive unless it is expressly included in this Ageernent or the appropriate Attaclunenl
3. OVerdue Accounts. Interest may be charged on overdue accounts and any other fees and expenses not paid as provided hereunder at the rate of
ONE AND ONE-HAlF PERCENT (1-%%) per month or the maximum amount allowed by law, whichever is less, convnencing v.ith the date
payment was due.
4. Export. Customer a!Tees that the Products purchased hereunder will not be exported directly or indirectly, separately or as part of any system,
withool first obtaining a license ~om the U.S. Department of Commerce or any other appropriate agency of the U.S. Government, as required.
5. Tannination. Notwithstanding any other tenn or condition of this A!Teernent or Attaclunents and Schedules attached hereto. Adaptive shall have
the right to tenninate this Ageernent upon the occurrence of any of the following events: (A) Customer fails to perform or observe any of its
obligations to Adaptive under this Ageement. including. but not limited to, the finely payment of any SIl11S due Adaptive. (8) Customer admits in
lMiting tta inability to pay its debts generally as they become due. or executes an assignment or similar document lor the benefit of aedilors. (C)
the appoinlment of a receiver, trustee in bankruptcy or similar ollicer for the equity or assets of Customer. and (0) there is an assi~nt of this
Ageernent without the prior lMil\en consent of Adaptive; and such event{s) is not remedied to the reasonable satisfaction of Adaptive v.ithin twenty
e (20) days alter Adaptive has sent lMit1en notice to Customer, (E) Customer informs Adaptive of its intent not to comply v.ith the terms of this
Ageement. Tennination shall not be Adaptive's exclusive remedy and no such tennination shall adversely affect any claim. right or action which
Adaptive may have lor damages or otherv.ise against Customer regarding any failure of Customer to perform or observe its obligations to Adaptive.
6.Customer Responsibilities. Except as otherMse provided on the Attaclunents, and in addition to any other obligations of Customer provided in this
Ageernent. Customer shall be solely responsible lor the following:
. Tha compatibility of Customer's computer hardware, peripherals, device mvers, third party operating systems. and other third party software
v.ith the Software and the Hardware;
. The installation, testing, use and operation of the Software and Hardware;
. The maintenance and support of Customer's hardware, peripherels. operating systems. third party software. Sof\ware. and Hardware;
. The results obtained ~orn use and operation of the Software and Hardware, provided. however, nothing contained in this subsection shall
affect the W8mlnty contained in Section 6.A.2 of the License Attachment;
. Providing a safe and suitable location for installation, use, and opperation of the Software and Hardware in accordance v.ith any instructions
that may be reasonably specified by Adaptive;
. Providing cabling and all cabling services in preparation lor the installation of the Sof\ware and Hardware;
. Providing and maintaining the appropriate environment for operating the Software and Hardware and maintaining back-up and disaster
recovery facilities; and
. All data entry and loading of Customer data and maintaining back-up or archival copies thereof.
Proprietary Rights.
Certain information. product development plans. materials. technical or nontechnical data, formulas, compilations, pro!J'8rn5. devices,
methods, techniques, drawings, processes. or portions thereof supplied by Adaptive. including the Software and the documentation thereof,
are lrade seaets and confidential information of Adaptive or tta suppliers and are furnished solely to assist Customer in the installation.
operation and use of the Hardware and Software. Trade seaets and confidential information include any information that is of value to
Adaptive and is treated as confidential. Customer a!J'OOS to hold the lrade seaets and confidential information disclosed by Adaptive in
strictest confidence and not to, direcUy or indirectly. copy, reproduce, distribute. manufacllKe, duplicate, reveal. report. publish, disclose.
cause to be disclosed, or otherwise lransfer the lrade seaets and confidential information disclosed by Adaptive to any third party (except
those third parties in a confidential relationship to Customer) or utilize the lrade secrets and confidential information disclosed by Adaptive for
any purpose whatsoever other than as expressly contemplated by this A!l'eemenl or any Attachment. With regard to 1rade seaets. this
obligation shall continue for so long as such information constitutes a lrade secret under applicable law. With regard to confidential
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General T anns and Conditions
6.
B-GT&C.DOC
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infcxmation, this obligation shall continue for the tenn of the applicable Attachment and for a period of five years thereafter. Customer
acknowledges that use or disclosure of Adaptive's trade secrets or confidential information would cause irreparable harm to Adaptive.
The invnediate pl'eceding para!18ph shall not apply to any such confidential information or document that is in Customer's possession prior to
receipt f10m Adaptive, publicly available through no fault of Customer or independently developed by Customer.
Customer may disclose to Adaptive certain non-public infcxmation relating to the Software or certain of Customer's ideas. formulae,
pI'OCesses, research, devel0Pf"8nt, third party software or software licenses. discoveries. marKeting plans, customer lists and other
information relating to any of the foregoing, or may permit Adaptive to inspect Customer's facilities (collectively, the "Customer Proprietary
Infcxmation"). All such disclosures which Customer informs Adaptive are confidential, including any information obtained in connection with
any inspection of Customer's facilities. are to be considered as confidential and all such disclosures shall be maintained in confidence by
Adaptive unless they become public knowledge tIvough no fault of Adaptive. Adaptive will not disclose to others, use for its own benefit,
copy. or make notes of any Customer Proprietary Information, such conduct will constitute a breach of the confidence and trust bestoWed on
Adaptive by Customer. Adaptive acknowiedges and a!188S that disclosure or unauthorized use of the Customer Proprietary Information
disclosed could cause irreparable harm ~ Customer. This Section 7 shall servive the termination of the Agceement. these General Terms
and Conditions and any Attachment.
Customer 8!188S that during the tenn of this Agceement and all applicable Attachments. and for one year following the last of such to expire,
Customer shall not solicit, induce to leave or hire any employee of Adaptive, or any individual who had been employed by Adaptive within the
prior one year.
7.
Miscellaneous.
o Customer may not assign any of its rights or obligations hereunder except with Adaptive's prior \\1ilten consent. and any alterr4>ted
assignment shall be void; pI'OVided, howeVer, Customer may assign its rights under this Agceement to a parent that is a 100% owner of
Customer or to a subsidiary that Is 100% owned by Customer. so long as such entity a!188S in \\1iting to be bound by all of the tenns and
conditions of this Agceemenl.
o This Agceement shall be binding upon and shall inure to the benefit of the parties hereto and their respective successors and permitted
assigns. Dates or times by which Adaptive is required to render performance under this Agceement shall be postponed automatically to the
extent that Adaptive is pl'evented fiorn meeting them by any cause beyond its reasonable control.
o All rights and remedies of the parties hereto are separate and cumulative. The waiver or failure of either party to exercise in any respect any
right or remedy pI'OVided herein shall not be deemed a waiver of any further right or remedy hereunder.
o This Agceement shall be subject to. govemed by, and construed in accordance with the laws of the state of Califomia without regard to its
rules goveming conflicts of law. Customer consents and submits to the i~sdlction and venue over any action, suit or other legal pI'OC8eding
that may arise out of or in connection with this A{Jeement. to be the County of Orange in the State of Califomia.
o The invalidity of any pl'ovision of this Agceement shall not affect the validity and binding effect of any other pI'OVision.
o Notices hereunder shall be sent to the aclltessees on the face of this Agceement, or to such other addresses as specified by a notice
complying herewith, and shall be deemed received on the eartier of actual receipt or fIVe days alter deposit in the U.S. Mail.
o Headings contained in this Agceement are for convenience only and are not perf of this Agceement and do not in any way intel'pl'et. limit or
amplify the scope. extent or intent of this Agceement or any of the pI'OVisions hereof.
o In the event of any dispute over the Agceement. the General T arms and Conditions or any of the Attachments, the pl'evailing party shall be
entititted to reasonable attomeys' fees, costs and expenses.
o Adaptive shall carry Workmens's Compensation. Employer's Liability Insurance and any other insurance which will pl'otect Adaptive fiorn
claims in connection with the services to be pI'OVided hereunder, and Adaptive's obligations under the Agceement and any Attachments: and
as otherwise required by applicable laws, rules, ordinances and regulations. Such insurance shall be in the form pl'escribed by and in the
amounts required by the state or states where services are being performed under the Agceement and any Attachments.
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B-GT&C.DOC
Software Support Attachment
This Sof\ware Support Attachment (hereinafter 'Attacbmenr) between Adaptive Information Systems, Inc. (hereinafter 'Adaptive1 and
Ity of San Bernardino, (hereinafter 'Customer1 is an addendum 10 the Purchase, License and Service Agreement between Adaptive and Customer
dated . Customer agoees to the following terms and conditions which are incorporated in and made part of the Purchase, License
and Service Ag-eement.
1. Software Support.
Adaptive agoees 10 provide 10 Customer the services described below for the software for which sof\ware support services are elected on Schedule
A (the Covered Sof\ware), in accordance with the following terms and conditions:
A. Hours of Service Availability. Payment of the standard Support Fees (as defined in Section 5.A) entiUes Customer 10 Support Service (as
defined in 1.B) during the Principal Period of Maintenance (PPM). PPM is between the hours of 7:00 a.m. and 5:00 p.m. Pacific time, Monday
through Friday, excluding Adaptive holidays (Adaptive's Normal Business Hours) while this Attachment is in effect. All Covered Sof\ware
elected in Schedule A or subseqUenUy added by amendment shall have the same PPM. Customer may request. in YKiting, special exlended
periods of coverage, subject 10 Adaptive's current policies, terms, conditions, and prices for such service.
B. Scope of Service. Adaptive will provide service during the PPM as long as the Covered Sof\ware is at the current or the next most current
revision level and operated in accordance with Adaptive's published specifications. Support Services are (1) telephone support 10 help
resolve sof\ware failll'es dll'ing the PPM: resolution may be delivered as a Software Maintenance Update (SMU), sof\ware bug fix module or
wor1(arounds: (2) Commercially reasonable efforts to report and test fixes to defects in the Covered Software that materially and adversely
affect the efficiency or use of the Covered Sof\ware as described in Adaptive's \M'itten specifications: software prog-am fixes will be provided
for the current release only; and (3) delivery and'or installation of all sof\ware revisions provided by vendor that Adaptive deems necessary
with respecllo the Covered Sof\ware: and Adaptive will use its best efforts to render Support Services within a reasonable time.
_
C. Enhancements to Covered Software. Adaptive agoees 10 deliver to Customer without charge any new versions of the Covered Soflware
that contain only error corrections and minor enhancements. Adaptive may also offer to Customer new versions of the Covered Soflware that
contain more than error corrections and minor enhancements, subject to an additional license fee. Adaptive shall have the sole discretion 10
determine whether an updated or enhanced version of the Covered Software will be subjecllo an additionai license fee.
O. Service Limitations. Support Services are contingent upon the proper use of the Covered Software in accordance with Adaptive's published
specifications and do not include any of the following: (1) service on Covered Software installed in unsafe or hazardous environments, as
determined by Adaptive; (2) service resulting from accident, neglect, alterations, improper use, or misuse of the Covered Sof\ware as
necessitated by adjustments and changes attempted by non-Adaptive personnel; (3) service 10 a version other than the cll'rent or the next
most current version of the Software; (4) efforts 10 restore the software version and'or data beyond the most recent back-up; (5) service
related 10 soflware other than the Covered Software; (6) service related to unqualified products, either hardware or soflware, that are attached
or installed in the customer system that have not been previously approved by Adaptive; and (7) service request due to problems that are not
the direct result of Covered Software licensed by Adaptive. In the event that Support Services are provided at a location other than
Adaptive's facilities, then Customer shall be charged Adaptive's then current hourty or daily rates for Support Services during all traveltime
plus all reasonable travel and lodging expenses of Adaptive and its representatives. The time actually spent providing Support Services at
such other location will be included in the Support Fees. Nolwithstanding anything to the contrary contained in this Attachment, Adaptive shall
use commercially reasonable efforts 10 respond to problems set forth below.
Priority Codes: The Codes below depiclthe priority level assigned by Adaptive 10 each issue or problem phoned in by Customer.
"A Priorily" _ A Software error renders the Software inoperable. Resources assigned within two (2) hours after notice during PPM.
"B Priority" . A Software error is detected for a system module which seriously impairs system operations, but does not render it down.
Resoll'ces assigned within four (4) hours after notice during PPM.
"C Priority' . Minor problem 10 be generally resolved during PPM within 30 days.
'0 Priority" _ Would likes and minor problems which Adaptive will plan 10 incorporate inlo a future sof\ware release.
_2.
Customer's Responsibilities
Customer shall provide reasonable assistance to Adaptive in the performance of Support Services, including without limitation, providing Adaptive
copies of all data and other files reasonably required 10 verify, reproduce, diagnose and resolve reported problems. Customer is responsible for
maintenance and installation of any common carrier equipment or communication services related 10 the Covered Software and not tunnished by
O-SWSUP.OOC
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Adaptive, including without limitation. the necessary modem and remote access software reasonably specified by Adaptive for the purposes of
plOViding dial-up access to Adaptive. Customer is responsible for charges incurred for communication facilities ~om Customer's facilities, whether
incurred by Customer or by Adaptive SEfVice representatives while performing SEfVice on the Covered Software. Customer is responsible for
performing all system software backups and restoration of data. Customer shall notify Adaptive of any Covered Software failure and shall allow
Adaptive full and he access to the Covered Software for performing Support Services. Customer a!1ees that Adaptive shall have all riglts and
licenses of third parties necessary or appropriate for Adaptive to access the hardware and third party software in the performance of the Support
Services.
3. Alterations and Additions.
Adaptive will not be responsble to Customer for loss of use of the Covered Software or for any other liabilities arising ~om alterations, additions or
modifications which are made to the Covered Software by other than authorized representatives of Adaptive. If in the opinion of Adaptive, any
such alteration, addition or modification adversely affects Adaptive's ability to render Support Services, Adaptive r8SEfVes the right to terminate this
Attachment inmediately upon v.<itten notice to Customer. .
4. Term and Applicability to Other Attachments with Adaptive.
If Customer elects at the same time as it executes a Purchase, License and Service A!1eement to have this Attachment apply, then (a) the initial
term shall begin ninety (90) days after the Acceptance Date (the Acceptance Date shall be the date that Covered Software is loaded and passes
Adaptive's test procedures at Customer's site). If this Attachment fIrSt goes into effect at any other time, the initial term shall commence on the
date of execution or signing of this Attachment. The initial term shall terminate on December 31 of the year in which the initial term commenced.
The term of SEfVice for up!J'8des and other software added as Covered Software after the initial Acceptance Date shall be coterminous with the
term of SEfVice applicable to the Covered Software initially covered. After the initial term, Support Services shall be automatically renewed for
successive one (1) year periods unless either party notifies the other on or before ninety (90) days prior to the end of the then existing term.
5.
Support Fees
A. Definition. 'Support Fees' are the total annual charges designated as such on Schedule A. Support Fees cover Support Sarvices performed
at Adaptive's facilities. After the initial term and upon thirty (30) days v.<il\en notice, Adaptive may change the Support Fees to its standard
support fees then in effect. If the Support Fees are increased, Customer may terminate SEfVice as of the effective date of such incraase,
upon fifteen (15) days advance v.<il\en notice to Adaptive. If Customer does not terminate SEfVice as just stipulated, the new Support Fees
shall beCOme effective on the date specified in the notice. New Support Fees shall not exceed Adaptive's fees charged to similarty situated
customers.
B. Invoices. Support Fees will begin ninety (90) days after the Acceptance Date. Support Fees for renewal terms shall be payable annually in
advance on or before January 1 of each year. One-time charges will be invoiced as inc1JTed. Partial year invoicing will be prorated on the
basis of a thirty-day (3O-day) month. Customer shall pay the Support Fee and all other invoice charges in full within thirty (30) days of the
invoice date. All amounts payable under this Attachment shall be paid in U.S. Dollars.
C. Default. Customer shall be deemed to have defaulted in payment if it has not paid Adaptive all amounts due within thirty (30) days after
receipt of invoice. Customer's failll'e to pay any charges when due shall also constitute sufficient cause for Adaptive to suspend or terminate
SEfVice under this Attachment.
6. DISCLAIMER OF WARRANTY AND LIMITATION OF LIABILITY
ADAPTIVE MAKES NO REPRESENTATION OR WARRANTY OF ANY KIND, DIRECTLY OR INDIRECTLY, EXPRESS OR
IMPLIED, INCLUDING, WITHOUT LIMITATION, ANY WARRANTIES OF FITNESS FOR PARTICULAR PURPOSES OR
REQUIREMENTS OR OF MERCHANTABILITY, WITH RESPECT TO THE SUPPORT SERVICES OR ANY PARTS THEREOF.
ADAPTIVE SHALL NOT BE LIABLE TO CUSTOMER, OR ANY OTHER PARTY, FOR ANY LOSS, DAMAGE, OR EXPENSE OF
ANY KIND OR NATURE CAUSED, DIRECTLY OR INDIRECTLY, BY THE SUPPORT SERVICES OR ANY UNFITNESS OR
INADEQUACY OF THE SUPPORT SERVICES, OR BY CUSTOMER'S NEGLIGENCE, OR FOR ANY LOSS OF PROFITS, LOSS OF
USE, INTERRUPTION OF BUSINESS, LOSS OF REVENUES, LOSS OF DATA, OR FOR ANY OTHER DAMAGES OR CLAIMS,
WHETHER BASED ON STRICT OR ABSOLUTE TORT LIABILITY, NEGLIGENCE, CONTRACT, OR OTHERWISE, EVEN IF
ADAPTIVE KNEW OR SHOULD HAVE KNOWN OF THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT SHALl ADAPTIVE
BE LIABLE FOR MORE THAN THE SOFTWARE SUPPORT FEES PAlD UNDER THIS ATTACHMENT.
The DISCLAIMER OF WARRANTIES AND LIMITATION OF LIABILITY set forth above produce specific legal ri~ts. Customer may have
other rights which vary ~om state to state. Some states have laws which require wananty and liability rights differentty m those set forth
above. In such states the minimum required wananty and liability terms shall app1y and any required inplied warranty shall be Iinited in
duration to ninety (90) days after the Acceptance Date of the Covered Software.
Any action arising out of this Attachment or the Support Services plOVided hereunder (whether in conlract. warranty. or in tort) must be
brought by Customer within one year after the claim to which it relates first beCOmes known (or reasonably should have beCOme known).
2
D-SWSUP.DOC
Supplemental Support Service
7.
eA.
Movement of Covered Software. Covered Software moved to a location within North America shall continue to be serviced under this
Attachment at the option of Adaptive. Adaptive shall have the right to alter the type and schedule of maintenance provided to the relocated
Covered Software. Customer shall give Adaptive at ieast thirty (30) days advance IM"itten notice specifying the new location prior to any
movement.
B. Other Services. Any services rendered by Adaptive that are not included in the scope of Suppori Services, if requested by Customer,
will be performed at Adaptive's discretion and, if perfanned, will be charged to Customer at current Customer Service time and material rates
and terms then in effect.
8. Source Code Escrow.
A copy of the source code version of the Covered Software (Source Code) has been placed in the possession of Data Securities International, Inc.
(Escrow Agent), with all fees and expenses to be paid by Customer. Customer, and Escrow Agent shall in good faith negotiate an a{1eernent
mutually a{1eeab1e to the parties which shall include provisions protecting the confidentiality and non-disclosure of the Source Code and shall
provide for the terms regarding release of the Source Code.
9. General Terms and Conditions.
The parties acknowledge that the General Terms and Conditions contain provisions that govern the entire retationship among the parties.
Accordingly, in the event of any conflict between the General Terms and Conditions and this Attachment, the General Terms and Conditions shall
con1ro1 and govem.
Adaptive Infannation Systems, Inc.
By:(~f ;;4~/wy
e (Type or print name): C.HI!/Sit.lHE/(X HltlFNBIII:6-
Titie: Dll!rc..rM ~F ~rV(;tT1~r
Date: J IJlVf /( J? 'J 7
Customer
By:
(Type or print name):
Titie:
Date:
e
,
3
D.SWSUP.DOC
Hardware Maintenance Attachment
~ Mainlenance Attachment (hereinafter 'Attachmenr) between Adaptive Infoonstion Systems, Inc. (hereinafter "Adaptive' and
_ Sa-;;'i!';;"'rdino,(hereinafter "Customerj is an addendum to the Purchase, License and Service Ageernent between Adaptive and Customer dated
. Customer a!Tees to the following terms and conditions which are incorporated in and made part of the Purchase, License and Service
Ageernent.
1. Hardware Mainlenance.
e1.
e3.
Adaptive a~ to provide to Custaner the services described below for the hardware for which hardware mainlenance services are elected on
Schedule A (the Covered Hartt.vare), in accordance with the following leons and conditions:
A. Hours of Service Availability. Payment of the standard Mainlenance Fees (as defined in Section 4.A) entilles Customer to Maintenance Services
(as defined in Section tC) during the Principal Period of Mainlenance (PPM). PPM is between the hours of 7:00 a.m. and 5:00 p.m. Pacific line,
Monday through Friday, excluding Adaptive holidays (Adaptive's Noonsl Business Hours) while this Attachment is in effect. All Covered HarltNare
included on the Schedule A or subsequenUy added by amendment shall have the same PPM. Customer may request, in \Viting, special extended
periods of coverage, subject to Adaptive's current policies, tenms, conditions, and prices for such service.
B. Eligibility for Service. Hardware is eligible for maintenance under this Attachment provided it is in good operating condition, Adaptive's
serviceability requirements are met and manufacturer's serviceability, hartt.vare and site envronmental, safety, and health conditions are met.
Hardware which is not in good operating condition, as determined solely by Adaptive, may be repaired ancllor serviced by Adaptive to meet Eligibity
for Service under the prevailing rates charged by Adaptive and according to the General Terms and Conditions. In the event that any Covered
Hardware cannot be restored to good operating condition or does not meet Adaptive's serviceability requirements as detennined solely by Adaptive,
this Attachment may be terminated or the Covered Hardware may be removed Iran the Schedule A and not accepted for Mainlenance Services
under this Attachment.
C.
Scope of Service. Adaptive shall provide the following services (Maintenance Services) on the Covered Hardware:
Provide on-call services to keep the Covered Hardware in good working order during the PPM. Adaptive will use its best efforts to provide
Maintenance Services at the Customer's site within an average time of four (4) hours following notification of a Covered Hardware malfunction.
2.
Provide preventive mainlenance in accordance with the manufacturer's specifications on the Covered Hardware.
3.
Provide suitable parts on an exchange basis for defective or malfunctioning Covered Hartt.vare parts. Such exchanged parts shall have a life
expectancy not less than the majority of the components of the Covered Hardware. Exchanged parts removed Iran the Covered Har<t.wre shall
become the property of Adaptive. Parts installed in the Covered Hartt.vare will becane the property of the Custaner provided timely payment of
Mainlenance Fees are made by Custaner.
4.
Provide all parts and labor tor a manufacturer's mandatory Field Change Order rFCO") pertaining to Covered Hardware, when mandated by
manufacturer for product safety, personal injury, or property damage reasons or when, in Adaptive's sole opinion, product reliability or maintenance
would be i'nproved.
5.
Provide labor only for manufacturer's required FCO's relating to product performance improvement or to design deficiency correction on Covered
Hardware.
D. Maintenance Limitations. Covered Mainlenance shall not include the following:
1.
Requests for Maintences Services after the PPM or outside the mainlenance area.
2.
Service provided for apparent or actual malfunctions or failures which are the result of operator error, software error, tampering, accident, misuse,
neglect. abuse, i'nproper use or ueatment of Covered Hardware, including unauthorized alteration, use, or interconnection of Covered HarctNare by
elec1rical, e1ecb'Onic, or mechanical means with non-canpatible Covered Hardware or software or with Covered Hardware or software not provided
by Adaptive, unauthorized service (including, but not limited to, repair, adjustment. installation, modification, or reconfiguration) by a party other than
Adaptive or a party approved by Adaptive, maintenance or failures in Covered Hardware not serviced by Adaptive, unauthorized or i'nproper
movement or b'ansportation of Covered Hardware, elecuical failure or malfunction extemalto the Covered Hardware, failure or malfunction of ar
conditioning or humidity conuol, accident. or acts of God.
Service, installation, removal, refurbishment, or reconfiguration of Covered Hardware or devices not provided by Adaptive.
4.
Performance of normal operator functions.
G-HWSUP .DOC
5.
Supplies and accessories used in Covered Hardware operation. or exterior painting or refinishing of Covered Hardware.
e.
7
Requests for service for installation. removal (de-installation), refutbishment, or reconfiguration of Covered Hardware.
SalVice for manufacturer's FCO relating to improvement of Covered Hardware relative to speed, capacity, and the like or any other FCO not covered
in Section 1.C including but not limited to a FCO dated after the PPM or a FCO issued prior to the PPM but not performed.
D. Reservation of Rights
1. Adaptive reserves the right to terminate Maintenance SalVices on or refuse to service any or all Covered Hardware, YAten, as determined solely by
Adaptive, a hazard to safety or health exisls at the Covered Hardware site location.
2. Adaptive reserves the right after the initial term of this Attachment or anytime thereafter, to terminate any or all Covered Hardware listed in the
Schedule A, YAten in Adaptive's opinion Covered Hardware cannot be properly maintained on-site due to excessive wear, obsetesance, Covered
Hardware deterioration or unavailability of parts, upon giving thirty (30) days' pria Vofitlen notification to Customer.
3. Adaptive resOlVes the right to provide Customer v.ith Maintenance SalVice on hardware not covered under this Attachment. YAtich v.ill be charged to
the Cusforner at the prevailing rates charged by Adaptive and according to the General Terms and Conditions.
4. Adaptive resOlVes the right to determine assignment of its employees.
5. Adaptive resOlVes the right to subconlract Maintenance SelVices on Covered Hardware v.ithout additional charge to Customer, YAten in Adaptive's
sole opinion such subconlracting is necessary to provide Maintenance SalVices. Adaptive shall be responsible for providing appropriate supervision
to ensure that such Maintenance SelVices meet or exceed Adaptive's responsibilities under this Attachment.
2. Customer's Responsibilities.
The Cusforner shall provide prompt notification of Covered Hardware malfunction to Adaptive. The Customer shall ensure that Cusforner representative
is present at all times YAtile Adaptive is servicing the Hardware and allow Adaptive sufficient access to all Covered Hardware, communications, power,
e light and other necessary facilities. The Customer shall allow Adaptive a reasonable work space and storage in the same area as the Covered
Hardware,and maintain site conditions v.ithin the common environmental range of all Covered Hardware as specified by manufacturer's and Adaptive's
site environmental, safety, and health requirements, The Customer shall provide and assume complete responsibility for security and back-up of data
and information recorded on or in Covered Hardware as Customer considers necessary.
3, T ann and Applicability to Other Attachments v.ith Adaptive.
If Customer elects at the same time as II executes a PlI'Chase, License and SelVice ~t to have this Attachment apply, then (a) the initial term
shall begin ninety (gO) days after the Date Delivered (the Date Delivered shall be the date that Covered Hara.vare is lransferred to the Customer or a
common carrier, F.O.B. origin). If this Attachment first goes into effect at any other time, the initial term shall commence on the date of execution or
signing of this Attachment. The initial term shall terminate on December 31 of the year in YAtich the initial term commenced. The term of service for other
hardware added as Covered Hardware after the initial Delivered Date shall be coterminous v.ith the term of service applicable 10 the Covered Hardware
initially covered. Mer the initial term, Maintenance SelVices shall be automatically renewed for successive one (1) year periods unless eilher party
notifies the other on or before ninety (90) days prior to the end of the then existing term,
4 Maintenance Fees
A. Definition. Maintenance Fees are the total annual charges designated as such on Schedule A. Maintenance Fees cover Maintenance SelVices
performed by Adaptive. Mer the initial term and upon thirty (30) days \Vitten notice, Adaptive may change the Maintenance Fees to its standard
maintenance fees then in effect. If the Maintenance Fees are increased, Customer may terminate Maintenance SelVices as of the effective date of
such increase, upon fitteen (15) days advance Vofitlen notice to Adaptive. If Customer does not terminate Maintenance SalVices as just stipuleted,
the new Maintenance Fees shall become effective on the date specified in the notice. New Maintenance Fees shall not exceed Adaptive's fees
charged to similarly situated customers.
B. Invoices. Maintenance Fees v.ill begin ninety (90) days after the Date Delivered. Maintenance Fees for renewal terms shall be payable annually in
advance on or before January 1 of each year. One-time charges v.ill be invoiced as incurred. Partial year invoicing v.ill be prorated on the basis of a
thirty-day (3O-day) month. Customer shall pay the Maintenance Fees and all other invoice charges in full v.ithin thirty (30) days of the invoice date.
All amounts payable under this Attachment shall be paid in U.S. Dollars.
e c.
Default. Customer shall be deemed to have defaulted in payment if it has not paid Adaptive all amounts due v.ithin thirty (30) days after receipt of
invoice. Custom"'s faill..e to pay any charges YAten due shall also constitute sufficient cause for Adaptive to suspend or terminate Maintenance
SalVices under this Attachment.
5, Warranty.
2
G-HWSUP .DOC
A
Adaptive warrants that product or parts thereof repaired or serviced by Adaptive will be free from defects in material and worI<manship v.l1en used
normally, with reasonable care. and with proper service and maintenance. for a period of ninely (90) days from the date of the repair or service.
e.
DELAYS. Adaptive shall not be liable for delays in deliveries caused by fire. flood. explosion. accident. materials or energy shortsge. labor trouble,
war, sabotage, government law or regulation, or any other cause reasonably beyond its control, but it shall use all reasonable efforts to minimize the
extent of the delay.
C. DISCLAIMER OF WARRANTY AND LIMITATION OF LIABILITY
ADAPTIVE MAKES NO REPRESENTATION OR WARRANTY OF ANY KIND, DIRECTLY OR INDIRECTLY, EXPRESS OR IMPLIED,
INCLUDING, WITHOUT LIMITATION, ANY WARRANTIES OF FITNESS FOR PARTICULAR PURPOSES OR REQUIREMENTS OR OF
MERCHANTABILITY, WITH RESPECT TO THE MAINTENANCE SERVICES OR ANY PARTS THEREOF, EXCEPT AS PROVIDED IN
SECTION 5 A. ADAPTIVE SHALL NOT INCUR ANY OTHER OBLIGATIONS OR LIABILITIES AND SHALL NOT BE LIABLE TO
CUSTOMER, OR ANY OTHER PARTY, FOR ANY LOSS, DAMAGE, OR EXPENSE OF ANY KIND OR NATURE CAUSED, DIRECTLY OR
INDIRECTLY, BY THE MAINTENANCE SERVICES OR ANY UNFITNESS OR INADEQUACY OF THE MAINTENANCE SERVICES, OR
BY CUSTOMER'S NEGLIGENCE, OR FOR ANY LOSS OF PROFITS, LOSS OF USE, INTERRUPTION OF BUSINESS, LOSS OF
REVENUES, LOSS OF DATA, OR FOR ANY OTHER DAMAGES OR CLAIMS, WHETHER BASED ON STRICT OR ABSOLUTE TORT
LIABILITY, NEGLIGENCE, CONTRACT, OR OTHERWISE, EVEN IF ADAPTIVE KNEW OR SHOULD HAVE KNOWN OF THE
POSSIBILITY OF SUCH DAMAGES. IN NO EVENT SHALL ADAPTIVE BE LIABLE FOR ANY AMOUNTS IN EXCESS OF THE
MAINTENANCE FEES PAID UNDER THIS ATTACHMENT.
The DISCLAIMER OF WARRANTIES AND LIMITATION OF LIABILITY set forth above produce specific legal rights. Cusforner may have other
rights v.l1ich vary from state to state. Some states have laws v.l1ich require warranly and liabilily rights differently from those set forth above. In
such states the minimum required warranly and liability tenns shall apply and any required implied warranty shall be limited in dtntion to ninety (90)
days after the Delivered Date of the Covered Hardware.
Any action arising out of this Attaclvnent or the Maintenance Services provided hereunder (v.l1ether in contract, warranty, or in tort) must be brought
by Cusforner within one year after the claim to v.l1ich it relates first becomes known (or reasonably should have become known).
~uPPlernental Maintenance Service
. A. Movernent of Covered Hardware. The Cusforner will provide to Adaptive thirty (30) days' prior written notification of a Covered Hardware move.
Adaptive will be under no obligation to continue Maintenance Services if Covered Hardware is moved without Adaptive's prior written approval. At
Adaptive's option, Adaptive may provide to the Customer rernoval (de-installation) and reinstallation services at the prevailing rates charged by
Adaptive and according to the General Terms and Conditions. Adaptive reserves the right to discontinue Maintenance Services under this
Attachment for Covered Hardware relocated outside the service area of an Adaptive office.
B. Other Services. Any services rendered by Adaptive that are not included in the scope of Maintenance Services, if requested by Cusforner, will be
performed at Adaptive's discretion and, if performed, will be charged to Cusforner at the prevailing rates charged by Adaptive and according to the
General Terms and Conditions.
9. General Terms and Conditions.
The parties acknowledge that the General 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 Atlaclvnent, the General Terms and Conditions shall control and govern.
:-:~~~
(Type or print name):C R/Ir.}'. I! i E. 'B/J~J-
TiUe: fJ//U UM IJP l'/'UATI04/J
Date: J i,jlIlE / $ / 'n '7
Cusforner
By:
(Type or print name):
Title:
Date:
e
3
G-HWSUP.DOC