HomeMy WebLinkAbout2009-188
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RESOLUTION NO. 2009-188
RESOLUTION OF THE MAYOR AND COMMON COUNCIL OF THE CITY OF
SAN BERNARDINO AUTHORIZING THE EXTENSION OF THE MAINTENANCE
CONTRACT AND THE A WARD OF AN ANNUAL PURCHASE ORDER FOR
MAINTENANCE OF THE POLICE DOCUMENT IMAGING SYSTEM WORKFLOW
SOFTWARE AND SCANNING STATION HARDWARE/SOFTWARE TO AVRIO
CORPORATION OF GLENDALE, CA
BE IT RESOLVED BY THE MAYOR AND COMMON COUNCIL OF THE CITY
OF SAN BERNARDINO AS FOLLOWS:
SECTION 1. That Avrio Corporation is a selected source provider of maintenance
services for the Document Imaging System workflow software and scarming station hardware
and software used by the San Bernardino Police Department.
SECTION 2. That the City Manager is authorized and directed to execute a Vendor
Service Agreement in the total amount of $62,152.00, a copy of which is attached hereto as
Exhibit "A".
SECTION 3. That the Mayor and Common Council authorize the Director of Finance
or his/her designee to issue a purchase order for $ 62,152.00 to A vrio Corporation, of Glendale,
California for maintenance services. The Purchase Order shall reference the number of this
resolution and shall incorporate the terms and conditions of the existing maintenance contract
which is on file in the City Clerk's Office. The Purchase Order shall read, "Annual FY
2009/2010 contract PO for armual software and hardware maintenance services. Not to exceed
$62,152.00."
SECTION 4. This purchase is exempt from the formal contract provisions of San
Bernardino Municipal Code4 Section 3.04.010 (B)(3), "Purchases approved by the Mayor and
Common Council."
SECTION 5. The authorization to issue the above-referenced purchase order is
rescinded if not issued within sixty (60) days of the passage of this resolution.
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, 2009-188
RESOLUTION OF THE MAYOR AND COMMON COUNCIL OF THE CITY OF SAN
BERNARDINO AUTHORIZING THE EXTENSION OF THE MAINTENANCE
CONTRACT AND THE A WARD OF AN ANNUAL PURCHASE ORDER FOR
MAINTENANCE OF THE POLICE DOCUMENT IMAGING SYSTEM WORKFLOW
SOFTWARE AND SCANNING STATION HARDWAREISOFTWARE TO AVRIO
CORPORATION OF GLENDALE, CA
I HEREBY CERTIFY that the foregoing resolution was duly adopted by the Mayor and
joint
Common Council of the City of San Bernardino at a regular meeting thereof, held on
the--6..th day of July ,2009, by the following vote, to wit:
Council Members
ESTRADA
BAXTER
BRINKER
SHORETT
KELLEY
JOHNSON
McCAMMACK
Aves Navs
x
x
x
x
x
x
x
Abstain
Absent
Q~1P h. ~
R~el G. Clark, City Clerk
~~",'
~ day of
The foregoing resolution is hereby approved this
Approved as to form:
July
,2009.
2009-188
1 VENDOR SERVICE AGREEMENT
2 This Vendor Service Agreement is entered into this 1st day of Jnly 2009, by and
3 between Avrio Corporation, of EI Segundo, California ("VENDOR") and the City of San
4 Bernardino ("CITY" or "San Bernardino").
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WHEREAS, renewal of the above referenced Annual PO for maintenance and
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12 support of the Document Imaging System by Avrio Corporation is justified because the
13 supplies or equipment are not available from any other source. This determination was made
14 based on internet searches. In addition, A vrio is the only authorized vendor that Kofax
15 (Scanning Stations/Jukebox equipment vendors) lists for maintenance of our Document
16 Imaging System from FileNet, in the Southern California region. They are also the
17 developers of custom workflow and scarming solutions.
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NOW, THEREFORE, the partIes hereto agree as follows:
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1. SCOPE OF SERVICES.
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WITNESSETH:
WHEREAS, the Mayor and Common Council has determined that it is advantageous
and in the best interest of the CITY to contract for armual maintenance of the Police
Department's Document Imaging System as outlined in VENDOR's "Software Service
Agreement" included with this agreement as Exhibit "A".
For the remuneration stipulated, San Bernardino hereby engages the services of
VENDOR to provide those products and services as set forth on Exhibit "A" and Exhibit
"B", attached hereto and incorporated herein.
COMPENSATION AND EXPENSES.
a.
For the services delineated above, the CITY, upon presentation of invoices,
shall pay the VENDOR up to the amount of $62,152.00 for the services set
forth and quoted in Exhibit "A".
No other expenditures made by VENDOR shall be reimbursed by CITY.
CSB-Avrio Corporation VSA - 1 EXHIBIT "A"
b.
2009-188
1 3.
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4.
INDEMNITY.
VENDOR agrees to and shall indemnify and hold the CITY, its elected officials,
employees, agents or representatives, free and harmless from all claims, actions, damages and
While not restricting or limiting the foregoing, during the term of this Agreement,
VENDOR shall maintain in effect policies of comprehensive public, general and automobile
liability insurance, in the amount of $1,000,000.00 combined single limit, and statutory
worker's compensation coverage, and shall file copies of said policies with the CITY's Risk
CSB-Avrio Corporation VSA - 2
2009-188
Manager prior to undertaking any work under this Agreement. CITY shall be set forth as an
1 additional named insured in each policy of insurance provided hereunder. The Certificate of
2 Insurance furnished to the CITY shall require the insurer to notifY CITY of any change or
3 termination in the policy.
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6.
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NON-DISCRIMINATION
In the performance of this Agreement and in the hiring and recruitment of
employees, VENDOR shall not engage in, nor permit its officers, employees or agents to
engage in, discrimination in employment of persons because of their race, religion, color,
9 national origin, ancestry, age, mental or physical disability, medical condition, marital status,
10 sexual gender or sexual orientation, or any other status protected by law, except as permitted
11 pursuant to Section 12940 of the California Government Code.
12 7. INDEPENDENT CONTRACTOR.
13 VENDOR shall perform work tasks provided by this Agreement, but for all intents
14 and purposes VENDOR shall be an independent contractor and not an agent or employee of
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the CITY. VENDOR shall secure, at its expense, and be responsible for any and all payment
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Compensation, and other payroll deductions for VENDOR and its officers, agents, and
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19 employees, and all business license, if any are required, in connection with the services to be
of Income Tax, Social Security, State Disability Insurance Compensation, Unemployment
20 performed hereunder.
21 8. BUSINESS REGISTRATION CERTIFICATE AND OTHER
22 REQUIREMENTS.
23 VENDOR warrants that it possesses or shall obtain, and maintain a business
24 registration certificate pursuant to Chapter 5 of the Municipal Code, and any other licenses,
25 permits, qualifications, insurance and approval of whatever nature that are legally required of
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VENDOR to practice its business or profession.
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9.
NOTICES.
Any notices to be given pursuant to this Agreement shall be deposited with the
CSB-Avrio Corporation VSA - 3
2009-188
United States Postal Service, postage prepaid and addressed as follows:
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TO THE CITY:
Mr. Michael Eckley
City of San Bernardino
300 North D Street
4th Floor - IT Dept
San Bernardino, CA. 92418
Telephone: (909) 384-5947
TO THE VENDOR:
Mr. Gregory Kaut
Avrio Corporation
222 North Sepulveda Blvd Ste. 2000
El Segundo, CA. 90245
Telephone: (310) 651-6679
ATTORNEY'S FEES
In the event that litigation is brought by any party in connection with this Agreement,
19 the prevailing party shall be entitled to recover from the opposing party all costs and
20 expenses, including reasonable attorneys' fees, incurred by the prevailing party in the
21 exercise of any of its rights or remedies hereunder or the enforcement of any of the terms,
22 conditions or provisions hereof. The costs, salary and expenses of the City Attorney and
23 members of his office in enforcing this Agreement on behalf of the CITY shall be considered
24 as "attorneys' fees" for the purposes of this paragraph.
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11.
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ASSIGNMENT.
VENDOR shall not voluntarily or by operation of law assign, transfer, sublet or
encumber all or any part of the VENDOR's interest in this Agreement without CITY's prior
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written consent. Any attempted assignment, transfer, subletting or encumbrance shall be void
CSB-Avrio Corporation VSA - 4
2009-188
and shall constitute a breach of this Agreement and cause for the termination of this
1 Agreement. Regardless of CITY's consent, no subletting or assignment shall release
2 VENDOR of VENDOR's obligation to perform all other obligations to be performed by
3 VENDOR hereunder for the term of this Agreement.
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12. VENUE.
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Bernardino, State of California or the U.S. District Court for the Central District of
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9 California, Riverside Division. The aforementioned choice of venue is intended by the
10 parties to be mandatory and not permissive in nature.
11 13. GOVERNING LAW.
12 This Agreement shall be governed by the laws of the State of California.
13 14. SUCCESSORS AND ASSIGNS.
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The subject headings of the sections of this Agreement are included for the purposes
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19 of convenience only and shall not affect the construction or the interpretation of any of its
20 provisions.
21 16. SEVERABILITY.
22 If any provision of this Agreement is determined by a court of competent jurisdiction
23 to be invalid or unenforceable for any reason, such determination shall not affect the validity
24 or enforceability of the remaining terms and provisions hereof or of the offending provision
25 in any other circumstance, and the remaining provisions of this Agreement shall remain in
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full force and effect.
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The parties hereto agree that all actions or proceedings arising in connection with this
Agreement shall be tried and litigated either in the State courts located in the County of San
This Agreement shall be binding on and inure to the benefit of the parties to this
Agreement and their respective heirs, representatives, successors, and assigns.
15.
HEADINGS.
17.
ENTIRE AGREEMENT; MODIFICATION.
This Agreement constitutes the entire agreement and the understanding between the
CSB-Avrio Corporation VSA - 5
2009-188
parties, and supersedes any prior agreements and understandings relating to the subject
1 manner of this Agreement. This Agreement may be modified or amended only by a written
2 instrument executed by all parties to this Agreement.
3 IN WITNESS THEREOF, the parties hereto have executed this Agreement on the day
4 and date set forth below.
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III
VENDO~: / ,I r-.
Dated: J..LL4.c2l, 2009
By:
i1il( ~
Its: (;uz..rJ:..CpDey ~ (,()).vo:r-
CITY OiilBFKNAJUJINO'
Dated: . 2009
By:
(Mr. Charles E. cNeely, City Manager)
Dated:
,2009
Approved as to Form:
James F. Penman, City Attorney
By:
~
CSB-Avrio Corporation VSA - 6
2009-188
Exhibit "A"
.
222 N, Sepulveda Blvd, #2140
EI Segundo, CA 90245
Phone. 310-651-6679 Fax 310-651-6675
avno
corporatIon
Soflware Service Agreement
This Software Service Agreement (hereinafter 'Agreement") is made and entered into by Avno Corporation (hereinafter "Avno') and The City of
San Bemardino Police Department (hereinafter 'Customen located at: 710 North 0 Street, Ca, 92401,
This Agreement includes the General Terms and Conditions of which are attached hereto,
This Agreement constitutes the entire agreement between the parties on the subject matter hereof and supersedes all pnor or contemporaneous
agreements, negotiations, representations, and proposals, wntten or oral between A VRIO or its affiliates and Customer. This Agreement is not an
acceptance of any conflicting or additional terms and conditions and will prevail over any confticting or additional provisions of any Customer
purchase order or other instrument. The parties agree that any Customer purchase order is for customers convenience only, Only a written
instrument executed by both parties referenced as an amendment to this Agreement may modify or supplement this Agreement.
BY EXECUTING THIS AGREEMENT, CUSTOMER ACKNOWLEDGES THAT IT HAS REVIEWED THE ATTACHED TERMS AND CONOITIONS
AND AGREES TO BE LEGALLY BOUNO BY THEM,
CUSTOMER, BY ITS SIGNATURE, ACKNOWLEDGES THAT THIS AGREEMENT CONTAINS CERTAIN LIMITATIONS OF LIABILITY AND
CERTAIN WARRANTY DISCLAIMERS.
AVRIO Corporation, Inc
Customer
By
Typed or Printed Name
By
Typed or Printed Name
Signature
Signature
Title
Title
Date
Date
Approved as to form:
James F, rCity Attorn;'!
By ~,f~
CJ
Avrio Corporation
Support Agreement.doc
2009-188
General Terms and Conditions
Following are the terms and conditions under which AVRIO
provides Service (the 'Service") for the Support Program indicated
in the Support Subscription Order Form covering the Software listed
in the Software Product Information Form:
1, Maintenance
A. Hours of Service Availability, Payment of the standard
Service Charges (as defined in Section 5) entitles
Customer to Service during the Principal Period of
Maintenance ('PPM'), The PPM is a ten hour
contiguous daily time period between the hours of 7:00
AM and 5:00 PM, Pacific Time Zone, Monday though
Friday, excluding AVRIO's published holidays or such
holidays as observed locally by AVRIO, All Service
subsequently added shall have the same PPM,
B. Scope of Service, Software Service includes the
response to and resolution of customer-encountered
problems with the Software as reported to A VRIO by the
Customer. The resolution of such encountered problems
shall, at AVRIO's option, consist of: (1) maintenance
provided through telephone or electronic support; (2)
correction of any defect in the Software program that
materially and adversely affects the use of the Software
as described in A VRIO's specifications, (3) delivery of
bug fixes or workarounds limited to the current or
immediate orior Software release, A VRIO will support
Software licensed to the customers development and
production systems, A VRiO will use commercially
reasonable efforts to respond to Customer calls
according to the priority level of the call, AVRIO will
ensure the customers call is resolved within a
commercially reasonable period,
C, Service Limitations, Software Service is contingent
upon the use of unmodified Software (except as
authorized by AVRIO) operated in accordance with
A VRIO's specifications, Software Service specifically
excludes the following: (1) Service to a version of
Software other than the current or immediate Drior
release: (2) efforts to restore a release of the Software
beyond the current or immediate prior release; (3) efforts
to restore Customer data beyond the most recent back-
up.
AVRIO periodically announces the End of Service Life
(EOSL) for Software, AVRIO will notify the Customer
signatory or designee in writing or by electronic mail,
such announcements will provided at a minimum one
hundred and Eighty (180) days notice to the customer
prior to the Service discontinuance, A VRIO will provide
Service on this Software after the EOSL on a best efforts
basis at its prevailing time and material rates,
Avrio Corporation
Initals:
2, Customer Responsibilities
Customer is responsible for maintenance and installation of
any common carrier equipment or communication service
related to the operation of the Software and not fumished by
A VRIO, Customer is also responsible for charges incurred for
communication facilities at customers facilities, whether
incurred by Customer or by A VRIO Service representatives
while pertorming Service on the Software, Customer is
responsible for pertorming Software back-ups in accordance
with published documentation, Customer shall notify AVRIO
of any Software failure and shall allow A VRIO reasonable
access to the Software for pertorming Service, Customer
must provide A VRiO with modem access to the Software
located on customers development and production systems in
order to pertorm remote support, The Customer must
maintain a First Level response capability that is A VRIO-
certified, per published A VRIO education standards, to answer
the Customer questions regarding the operating system,
database (including back-up and restore) and AVRIO tools
and applications purchased by the Customer. The Customer
may only escalate the call to AVRIO through its AVRIO-
Contacts,
3, Software Modification
A VRIO will not be responsible to Customer for loss of use of
the Software or for any other liabilities arising tram alterations,
additions, adjustments, or repairs made to the Software by
other than authorized representatives at AVRIO or at the
direction or with the authorization of AVRIO, AVRIO reserves
the right to terminate this Agreement upon written notice to
Customer if any such alteration, addition, adjustment or repair
adversely affects A VRIO's ability to render maintenance
Service to the Software,
4, Term and Renewal This Agreement may be terminated at any
time by thirty (30) days' written notice by either party, The
terms of this Agreement shall remain in force unless mutually
amended, The duration at this Agreement may be extended
with the written consent at both parties
5, Service Charges
A, Definition, 'Service Charges' are the total annual
charges for the support program selected on the Partner
Support Subscription Order Form, After the initiai term
and upon thirty (30) days written notice, AVRIO may
change its standard Service charges then in effect, If the
Service Charges are increased, Customer may terminate
Service as of the effective date of such increase, upon
fifteen (15) days written notice to AVRIO, If Customer
does not terminate Service as stipulated, the new
Support Agreementdoc
2
Service Charge shall become effective on the date
specified in the notice,
B, Invoices, Service Charges will begin on the first day of
the month ninety (90) days after the Shipment Date of
Software in order to allow the Customer sufficient time
for deployment to its sites, Service charges for Software
add,,"s will begin on the first day of the month after the
Shipment Oate of the add-on and will be coterminous
with the term of Service applicable to the Software
initially covered, Customer shall pay all invoices in full
within thirty (30) days of receipt of the invoice regardless
of whether or not Customer utilizes Service every month
during the term, All amounts payable under this
Software Service Agreement shall be paid in the
currency stated on the invoice,
C, Default. Customer will be in default if all undisputed
amounts due within thirty (30) days after receipt of
invoice have not been paid, If Customer defaults in any
payment due hereunder to A VRIO, the defaulted sum
shall bear interest from the date of default at an annual
rate equal to one and one-half percent (1,5%) per month,
or the maximum interest rate permitted by law,
whichever is lower. Customers failure to pay any
charges when due shall also constitute sufficient cause
for A VRIO to suspend or terminate Service under this
Software Service Agreement.
6, Supplemental Maintenance Service
A, Movement of Products, Software moved to a location
outside of the original delivery country shall continue to
be Serviced at the option of A VRIO subject to the
prevailing terms, conditions and prices of the country to
which it is moved, Furthermore, A VRIO shall have the
right to alter the type of Service provided to the relocated
Software, Customer shall give AVRIO at least thirty (30)
days written notice specifying the new location prior to
any movement. The Service Charges specified in this
Agreement shall be suspended on the day the
deinstallation of the Software commences and shall be
reinstated on the day following the installation of the
Software at the new location. Reinstallation must occur
within thirty (30) days of deinstallation or a pre-<:ontract
inspection may be required and billed at the current time
and material rates,
B, Other Service, A VRIO's rendering of maintenance
service that is not included in the selected customer
Support Subscription Order, including extended
coverage, upgrade of Software releases and consulting,
if requested by customer, will be pertormed at AVRIO's
discretion upon receipt of purchase order or appropriate
payment, and, if pertormed, will be charged to Customer
at current prices and terms then in effect.
Initals:
Avrio Corporation
2009-188
7, LIMITED WARRANTY
THE SERVICE OBLIGATIONS SET FORTH IN THIS
AGREEMENT ARE IN LIEU OF ALL WARRANTIES,
EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION
ANY WARRANTIES OF MERCHANTABILITY OR FITNESS
FOR A PARTICULAR PURPOSE, SERVICE PROVIDED
UNDER THIS SERVICE AGREEMENT DOES NOT ASSURE
THE UNINTERRUPTED OPERATION OF THE SOFTWARE.
8, Proprietary Rights
Certain information and materials supplied by A VRIO with the
Service such as, but not limited to, logic diagrams and
manuals, schematics and drawings, are AVRIO confidential or
proprietary trade secrets and A VRIO fumishes them solely to
assist Customer in the installation, operation and use of the
Software, AVRIO marks all such confidential and proprietary
information and Customer must abide by the terms of those
markings, and not reproduce, copy or disclose such
information, except as is reasonable and necessary to use the
Software properly,
9, Limitation of Liability
Unless expressly provided otherwise in this Agreement,
A VRIO and its Licensors will not be liable for any loss or
damage claimed to have resulted from the Service or the use,
operation or pertormance of the Software or related in any way
to their acquisition, regardless of the form of action, In no
event will A VRIO be liable to Customer for (a) any special,
indirect, incidental or consequential damages, even if A VRIO
has been advised of the possibility thereof, (b) any damages
resulting from latent defects, loss of data or profits, (c) any
claim whether in contract or tort, that arose more than four
years prior to institution of suit thereon, A VRIO shall be liable
for actual damages resulting from a maferial breach of this
Agreement and for personal injury or property damages
directly resulting from gross negligence or intentional
misconduct on the part of A VRIO up to, but not exceeding, the
annual Service Charge paid hereunder.
10. Export
Customer agrees that the Software provided hereunder will
not be exported directly or indirectly, separately or as part of
any system, without first obtaining a license from the U,S,
Oepartment of Commerce or any other appropriate agency of
the U,S, Government, as required,
11. Assignment
Neither party may assign, voluntarily or by operation of law,
any of its rights or obligations in this Agreement except with
prior writlen consent of the other party, This Agreement will
Support Agreement.doc
3
be binding on and inure to the benefit of the parties hereto and
their respective successors and permitted assigns.
12, Waiver
The parties' rights and remedies are separate and cumulative,
Neither party's waiver or failure to exercise in any respect any
right or remedy provided in this Agreement is a waiver of any
future right or remedy hereunder.
13, Force Majeure
If any cause beyond AVRIO's reasonable control prevents
A VRIO from penorming under this Agreement by a given date
ortime, AVRIO's penormance will be automatically postponed,
Initiais:
Avrio Corporation
2009~188
14. Choice of Law
The laws of the State of California will govern the construction
and operation of this Agreement without regard to the conflicts
of laws provisions thereof,
15, Severability
The invalidity of any provision of this Agreement will not affect
the validity and binding effect of any other provision,
16. Notice
Notices hereunder must be sent to the addresses on the face
of this Agreement, or to such other addresses as specified by
a notice complying with this provision, Notice is effective on
the earlier of actual receipt or five days after deposit in the
U,S, Mail. Notices to A VRIO must be sent to the attention of
'Contracts Administration,'
Support Agreement.doc
4
2009-188
.
222 N. Sepulveda Blvd #2140
EI 5E!9undo, CA 90245
Phone, 310-651-6679- Fax 310-651-6675
avno
corporatIon
CustomerSupport Subscription Order Form
Customer: Date:
ContractIFinancial Contact: Phone: Fax:
Address:
City. State or Province
Zio Code or Postal Code: CountTv: United States
Model Descriotion Rate Amount
Standard Support
VAPlus Upgrade Assurance - Standard Support (Please 18% $
comolete the Software Product Information form
which follows)
Customer Signature
Title
Customer agrees to the terms and conditions set forth in the Software Service Schedule,
A vrio Corporation
SupportAgreement.doc
5
2009-188
Software Product Information Form
CustomerName:_ City of San Bernardino Police Department
The following information is required in order to process your enrollment. Please provide a list of your installed
Software including serial numbers, quantities and descriptions. IF YOU DID NOT PURCHASE YOUR
SOFTWARE DIRECTLY FROM A VRIO. PLEASE ALSO INCLUDE A COPY OF THE P.O. OR INVOICE
AS PROOF OF PURCHASE.
MODEL NUMBER DESCRIPTION Qty
E0502LL FNCSAUTHUSER ANNUAL S&S 23,26 8,141,00 350
RNWL
E053CLL EFDESCLlDV ANNUAL S&S RNWL 1
E050LLL FNEFFP8AUSR ANNUAL S&S RNWL 29
E053NLL EPROCSVCSAU ANNUAL S&S RNWL 162
E053TLL EPRCSERVTKCDV ANNUAL S&S RNWL 1
Avrio Corporation
SupportAgreement.doc
6
~~2
2009-188
Exhibit "e"
Master Agreement Terms and Conditions
This Master Agreement (herein "Agreement") is made and entered into by and between Avrio Corporation, a
California Corporation having its principal place of business at 222 N Sepulveda Blvd #2140, EI Segundo
California 90245 ("Avrio") and ("Customer") having its principle place of
business at: address City State Zip.
This Agreement includes the following General Terms and Conditions, as well as those Schedules listed
below which are initialed by Customer, all Exhibits referencing the above stated Agreement, and all Mure
Schedules referendng this Agreement which Avrio and Customer may execute from time to time for the
purchase, license, support and service of Avrio software and hardware (herein collectively "Products").
Software Ucense
Hardware Purchase
Software Support
Professional Services
Addendum
This Agreement constitutes the entire agreement between the parties on the subject matter hereof and
supersedes all prior or contemporaneous agreements, negotiations, representations and proposals, written
or oral between Avrio and Customer. This Agreement is not an acceptance of any conflicting terms and
conditions and will prevail over any conflicting provision of any Customer purchase order or other
instrument. The parties agree that any Customer purchase order is for Custome~s convenience only. Only a
writing executed by authorized representatives of the parties and referenced as an amendment to this
Agreement may modify, supplement, or change this Agreement.
BY EXECUTING THIS AGREEMENT, CUSTOMER ACKNOWLEDGES THAT IT HAS REVIEWED THE TERMS AND
CONDmONS AND AGREES TO BE LEGALLY BOUND BY THEM.
CUSTOMER, BY ITS SIGNATURE, ACKNOWLEDGES THAT THIS AGREEMENT CONTAINS CERTAIN
UMITATIONS OF UABIL1TY AND CERTAIN WARRANTY DISCLAIMERS.
Avrio Corporation
By
Customer:
By
(Type or print name)
(Type or print name)
Title
Title
(Signature)
(Signature)
Date
Date
Avrio Corporation
MasrerAgreemem1~7
2009-188
General Terms end CondItions
1. Payment Tema. Avrio will invoice Customer for all ucense Fees, Hardware Fees, Support Charges end Service Fees (herein "Fees"). Customer must pay
eac:h invoice within thirty (30) days from invoice date, U'lless olI1erwise specified in the applicable SChedule. If Customer authOrizes deliveries in installments,
Customer must pay each invoice for a delivery within thirty (30) days from invoice date without regard to other scheduled shipments. InvoiceS not paid when due
will have a 1.0 peI'C8nI per month interesI charge Of the highest lawful rete, whic:hevel" is less, assessed against the unpaid balance from the data Of invoice l.6l1i1
the date of payment. All payments made under this Agreement shall be paid in the CUT9nCy staled on !he invoice.
2. Deltvery. All Products are considenld delivered to Customer, F.O.B. origin, upon transfer to either a common carrier or Customer at an Avrio designated
location. Avrio will ship all Products prepaid and will then invoice Customer separately for related transportation costs. In the absence of prior shipping instructions,
Avrio will select !he carrier on behalf of Customer, bulassumes no liabiNty for shipment.
3. Proprietary Righte. Certain infonnation and materials supplied by Avrio with the Products such as, but not Umited to, manuals, diagrams, and draings, are Avrio
confidential Of proprietary trade seaets and Avrio fumishes them solely to assist Customer in the instatlatiCl'l, operation and use of the Products. AvriO marks all
sud1 confidential and proprietary information and Customer must abide by the terms of those marKings, and not reproduca copy or disclose sud1 information
except as is reasonable and necessary to properly use the Products.
4. Infrlngement Indemnification.
A Avrio will defend any action, suit Of proceeding brought against Customer if based on a claim that the Products delivered hereunder infringes any United States
patent, copyright, trade secret, or other intellectual property right of any third party rlntellectual property") provided that Customer promptly notifieS Avrio of the
action and gives AVIio fullauthortty, information and assistance for the actlon's defense. Avrio will pay all damages and costs awarded !herein against Customer,
but shall not be responsible for any compromise made without its consent. Avrio may, at any time it is concerned over !he possibility of such an infringement, at its
option and expense, replace or modify the Products so that infringement will not exist, or remove the Products involved and reflnj to Customar the price as
depreciated by an equal annual amount over the lifetime Avrio establishes for the Products.
B. Avrio shalt have no liability to Customer if any tntellectual Property infringement or claim thereof is based l4'Of1 the use of the Products in connection or in
combination with equipment, devices, or software not supplied by Avrio or used in a manner not expressly authorized by this Agreement or in a manner for which
the Products were not designed, or if the claim of infringement WOUld have been avoided but for Customef's use of software other than the latest, unmodified
release of Software made available 10 CUstomer by Avrio.
C.Cuslomer shall indemnify and hold Avrio harmless from any loss, cost or expense suffered or incured in connection with any claim, suil or proceeding brought
against Avrio so far as it is based on a daim thallhe use, sala, or licensing of any Products delivered hereunder and modified or altered Of combined with any
products, device, or software not supplied by Avrio hereunder constitutes an infringement because of such modification, alteration or combination.
S. LImitation of L18bility. Unless expressly provided otherwise in this Agreemenl, Avrio and its Licensors witl not be liable for 8Cl'J loss or damage claimed 10 have
resulted from the use, operation or performance of the Products or related in any way 10 their acquisition, regardless of the form of action. In no event will Avrio be
liable to Customer for (a) any special, indirect, incidental or consequential damages, even if AvriO has been advised of the possibility thereof, (b) any damages
resulting from latent defects, loss of data or profils,(e) any daim whether in contract or tort, that arose more than one year prior to institution of suit thereon. AVlio
shall be liable for actuat damages re$tjting from a material breach of this Agreement and for personal injury or property damages directly resulting from gross
negligenOe or intentional misconduct on the part of AVIio up to, but not exceeding, the license Fees or Hardware Fees paid hereunder.
8. Taxes.
A. Customer shalt pay all taxes, levies. and simitar governmental charges, however designated, and atlliabililies with respecllherel.o which may be imposed by
any jurisdiction, including, wilhoullimitaUon, OJstoms, privilege, excise, sales, use, value-added and properly taxes levied or based on gross revenue or operation
of this Agreement, except those taxes based upon Avrio's net income.
7. Export. Customel" agrees IhalIhe Productspurd1ased hereunder will not be exported directly or indirectly, separately or as part of any system, wiIhoutfirst
obtaining a license from the U.S. 0epartmenI. of Commerce or any other appropriate agency of the U.S. Government, as required_
8. AssIgnment. Customer may not assign, voluntarily or by operation of law, any of its rights or obligations in this Agreement except with AVfio's prior written
consent. This Agreement will be binding on and ifLlre to the benefit of the parties hereto and their respective successors and permitted assigns.
9. Waiver. The parties' rights and remedies are separate and cumulative. Neither parties waivei'" or failure 10 exercise in any reaped: In}' right or remedy provided
in this Agreement is a waiver of any MlXe right Of remedy hereunder.
10. Fotce MajeuN. If any cause beyond AvriO's reasonable con1roI prevents Avrio from performing under this Agreement by a given date or time, Avrio's
perfonnaoce will be automatically postponed.
11. Choice of Law. The laws of the State at California will govern the oonstruction and operation of this Agreement wilhoul regard to the conflict of laws provisions
'he<eof
12. SeverabIlity. The invalidity of any provision of this Agreement will not affect the validity and binding effect of any other provision.
13. Notice. Notices I'1ereU1der must be sent 10 the adQ'esse8 on the face of this Agreement, or 10 such other adlnsses as specified by a notice complying with
this provision. Notice is effective on the earlier of actual receipt or five days after deposit in the mail. Notices in the form of a fax or emsil are accepIable if followed
up by a mailed confirmation. Notices toAvrio must be sem to the attention of "Contracts Administration."
Inmals:
Avrio Corporation
Master Agreement 12107