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HomeMy WebLinkAboutTouchVision, Inc. 3' AGR2EEMRGNT TERBMINATI ®N G 2007 It Please complete this form when the attached agreement is no longer in effect. Return form to the Deputy Clerk of the Council (M -30). Call 647 -6520y q, , have any questions. '17 An t �, T I r €'LL - - -- - -- - -- -A ,L ,, - ,,.,;ANA ,,;NCIL The agreement with —re'v C'A VI -I Ali I N6 4 was completed on i — % and final payment has been made. `T fJ - 206a - 142, i11Y1�I1dYhCYli Department: /'baby LVO K. IN 2003 ' 1�2 - OI Signature: Date: 07,- City of Santa Ana Clerk of the Council AGREEMENT TERMINATION Please complete this form when the attached agreement is no longer in effect. Return form to the Deputy Clerk of the Council (M -30). Call 644/Irv832'OjKy9u have any questions. Qil q: Qd The agreement with /Jy was completed on and final payment has been made. Department: 0 City of Santa Ana Clerk of the Council 4tNL. f( 'V N- 2003 -142 INSURANCE ON FILE WORK MAY PROCEED UNTIL INSURANCE EXPIRES ) - 10 ,04 CONSULTANT AGREEMENT CLERK OF COUNCIL DATE: jJ Y3 ti3 THIS AGREEMENT, made and entered into this 1,9 H- day of 2003 by and between TouchVision, Inc., a California corporation (hereinafter "Consultant'), and the City !s PWA of Santa Ana, a charter city and municipal corporation organized and existing under the [Z 4-Xt -) Constitution and laws of the State of California (hereinafter "City "). RECITALS A. The City desires to retain a consultant having special skill and knowledge in the field of traffic information kiosk maintenance. B. Consultant represents that Consultant is able and willing to provide such services to the City. C. In undertaking the performance of this Agreement, Consultant represents that it is knowledgeable in its field and that any services performed by Consultant under this Agreement will be performed in compliance with such standards as may reasonably be expected from a professional consulting firm in the field. NOW THEREFORE, in consideration of the mutual and respective promises, and subject to the terms and conditions hereinafter set forth, the parties agree as follows: SCOPE OF SERVICES Consultant shall perform those services as set forth in Exhibit A to this Agreement. 2. COMPENSATION a. City agrees to pay, and Consultant agrees to accept as total payment for its services, the rates and charges identified in Exhibit A. The total sum to be expended under this Agreement, shall not exceed $9,950.00 during the term of this Agreement. b. Payment by City shall be made within thirty (30) days following receipt of proper invoice evidencing work performed, subject to City accounting procedures. Payment need not be made for work which fails to meet the standards of performance set forth in the Recitals which may reasonably be expected by City. 3. TERM This Agreement shall commence on the date first written above and terminate on June 30, 2004, unless terminated earlier in accordance with Section 12, below. The term of this Agreement may be extended upon a writing executed by the Executive Director of Public Works and the City Attorney. 4. INDEPENDENT CONTRACTOR Consultant shall, during the entire term of this Agreement, be construed to be an independent contractor and not an employee of the City. This Agreement is not intended nor shall it be construed to create an employer - employee relationship, a joint venture relationship, or to allow the City to exercise discretion or control over the professional manner in which Consultant performs the services which are the subject matter of this Agreement; however, the services to be provided by Consultant shall be provided in a manner consistent with all applicable standards and regulations governing such services. Consultant shall pay all salaries and wages, employer's social security taxes, unemployment insurance and similar taxes relating to employees and shall be responsible for all applicable withholding taxes. 5. INSURANCE Prior to undertaking performance of work under this Agreement, Consultant shall maintain and shall require its subcontractors, if any, to obtain and maintain insurance as described below: a. Commercial General Liability Insurance. Consultant shall maintain commercial general liability insurance naming the City, its officers, employees, agents, volunteers and representatives as additional insured(s) and shall include, but not be limited to protection against claims arising from bodily and personal injury, including death resulting therefrom and damage to property, resulting from any act or occurrence arising out of Consultant's operations in the performance of this Agreement, including, without limitation, acts involving vehicles. The amounts of insurance shall be not less than the following: single limit coverage applying to bodily and personal injury, including death resulting therefrom, and property damage, in the total amount of $1,000,000 per occurrence. Consultant shall supply City with a fully executed additional insured endorsement in substantially the form attached hereto as Exhibit B upon execution of this Agreement and shall be approved in form by the City Attorney. b. Business automobile liability insurance, or equivalent form, with a combined single limit of not less than $1,000,000 per occurrence. Such insurance shall include coverage for owned, hired and non -owned automobiles. c. Worker's Compensation Insurance. In accordance with the provisions of Section 3300 of the Labor Code, Consultant, if Consultant has any employees, is required to be insured against liability for worker's compensation or to undertake self - insurance. Prior to commencing the performance of the work under this Agreement, Consultant agrees to obtain and maintain any employer's liability insurance with limits not less than $1,000,000 per accident. d. Reserved. e. The following requirements apply to the insurance to be provided by Consultant pursuant to this section: (i) Consultant shall maintain all insurance required above in full force and effect for the entire period covered by this Agreement. (ii) Certificates of insurance shall be furnished to the City upon execution of this Agreement and shall be approved in form by the City Attorney. (iii) Certificates and policies shall state that the policies shall not be canceled or reduced in coverage or changed in any other material aspect without thirty (30) days prior written notice to the City. f If Consultant fails or refuses to produce or maintain the insurance required by this section or fails or refuses to furnish the City with required proof that insurance has been procured and is in force and paid for, the City shall have the right, at the City's election, to forthwith terminate this Agreement. Such termination shall not effect Consultant's right to be paid for its time and materials expended prior to notification of termination. Consultant waives the right to receive compensation and agrees to indemnify the City for any work performed prior to approval of insurance by the City. 6. INDEMNIFICATION Consultant agrees to and shall indemnify and hold harmless the City, its officers, agents, employees, consultants, special counsel, and representatives from liability: (1) for personal injury, damages, just compensation, restitution, judicial or equitable relief arising out of claims for personal injury, including health, and claims for property damage, which may arise from the direct or indirect operations of the Consultant or its contractors, subcontractors, agents, employees, or other persons acting on their behalf which relates to the services described in section 1 of this Agreement; and (2) from any claim that personal injury, damages, just compensation, restitution, judicial or equitable relief is due by reason of the terms of or effects arising from this Agreement. This indemnity and hold harmless agreement applies to all claims for damages, just compensation, restitution, judicial or equitable relief suffered, or alleged to have been suffered, by reason of the events referred to in this Section or by reason of the terms of, or effects, arising from this Agreement. The Consultant further agrees to indemnify, hold harmless, and pay all costs for the defense of the City, including fees and costs for special counsel to be selected by the City, regarding any action by a third party challenging the validity of this Agreement, or asserting that personal injury, damages, just compensation, restitution, judicial or equitable relief due to personal or property rights arises by reason of the terms of, or effects arising from this Agreement. City may make all reasonable decisions with respect to its representation in any legal proceeding. CONFIDENTIALITY If Consultant receives from the City information which due to the nature of such information is reasonably understood to be confidential and /or proprietary, Consultant agrees that it shall not use or disclose such information except in the performance of this Agreement, and further agrees to exercise the same degree of care it uses to protect its own information of like importance, but in no event less than reasonable care. "Confidential Information" shall include all nonpublic information. Confidential information includes not only written information, but also information transferred orally, visually, electronically, or by other means. Confidential information disclosed to either party by any subsidiary and /or agent of the other party is covered by this Agreement. The foregoing obligations of non -use and nondisclosure shall not apply to any information that (a) has been disclosed in publicly available sources; (b) is, through no fault of the Consultant disclosed in a publicly available source; (c) is in rightful possession of the Consultant without an obligation of confidentiality; (d) is required to be disclosed by operation of law; or (e) is independently developed by the Consultant without reference to information disclosed by the City. 8. CONFLICT OF INTEREST CLAUSE Consultant covenants that it presently has no interests and shall not have interests, direct or indirect, which would conflict in any manner with performance of services specified under this Agreement. 9. NOTICE Any notice, tender, demand, delivery, or other communication pursuant to this Agreement shall be in writing and shall be deemed to be properly given if delivered in person or mailed by first class or certified mail, postage prepaid, or sent by telefacsimile or other telegraphic communication in the manner provided in this Section, to the following persons: To City: Clerk of the City Council City of Santa Ana 20 Civic Center Plaza (M -30) P.O. Box 1988 Santa Ana, CA 92702 -1988 telefacsimile (714) 647 -6956 With courtesy copies to: Executive Director of Public Works City of Santa Ana 20 Civic Center Plaza (M -43) P.O. Box 1988 Santa Ana, California 92702 telefacsimile (714) 647 -5604 and, City Attorney City of Santa Ana 20 Civic Center Plaza (M -29) P.O. Box 1988 Santa Ana, California 92702 telefacsimile (714) 647 -6515 To Consultant: TouchVision, Inc. 11095 Knott Avenue, Suite E Cypress, California 90630 Telefacsimile (714) 886 -5340 Attn: Greg Roche A party may change its address by giving notice in writing to the other party. Thereafter, any notice, tender, demand, delivery, or other communication shall be addressed and transmitted to the new address. If sent by mail, any notice, tender, demand, delivery, or other communication shall be effective or deemed to have been given three (3) days after it has been deposited in the United States mail, duly registered or certified, with postage prepaid, and addressed as set forth above. If sent by telefacsimile, any notice, tender, demand, delivery, or other communication shall be effective or deemed to have been given twenty -four (24) hours after the time set forth on the transmission report issued by the transmitting facsimile machine, addressed as set forth above. For purposes of calculating these time frames, weekends, federal, state, County or City holidays shall be excluded. 10. EXCLUSIVITY AND AMENDMENT This Agreement represents the complete and exclusive statement between the City and Consultant, and supersedes any and all other agreements, oral or written, between the parties. In the event of a conflict between the terms of this Agreement and any attachments hereto, the terms of this Agreement shall prevail. This Agreement may not be modified except by written instrument signed by the City and by an authorized representative of Consultant. The parties agree that any terms or conditions of any purchase order or other instrument that are inconsistent with, or in addition to, the terms and conditions hereof, shall not bind or obligate Consultant nor the City. Each party to this Agreement acknowledges that no representations, inducements, promises or agreements, orally or otherwise, have been made by any party, or anyone acting on behalf of any party, which are not embodied herein. 11. ASSIGNMENT Inasmuch as this Agreement is intended to secure the specialized services of Consultant, Consultant may not assign, transfer, delegate, or subcontract any interest herein without the prior written consent of the City and any such assignment, transfer, delegation or subcontract without the City's prior written consent shall be considered null and void. Nothing in this Agreement shall be construed to limit the City's ability to have any of the services which are the subject to this Agreement performed by City personnel or by other consultants retained by City. 12. TERMINATION This Agreement may be terminated by the City upon thirty (30) days written notice of termination. In such event, Consultant shall be entitled to receive and the City shall pay Consultant compensation for all services performed by Consultant prior to receipt of such notice of termination, subject to the following conditions: a. As a condition of such payment, the Executive Director may require Consultant to deliver to the City all work product completed as of such date, and in such case such work product shall be the property of the City unless prohibited by law, and Consultant consents to the City's use thereof for such purposes as the City deems appropriate. b. Payment need not be made for work which fails to meet the standard of performance specified in the Recitals of this Agreement. 13. DISCRIMINATION Consultant shall not discriminate because of race, color, creed, religion, sex, marital status, sexual orientation, age, national origin, ancestry, or disability, as defined and prohibited by applicable law, in the recruitment, selection, training, utilization, promotion, termination or other employment related activities. Consultant affirms that it is an equal opportunity employer and shall comply with all applicable federal, state and local laws and regulations. 14. JURISDICTION - VENUE This Agreement and all questions relating to its validity, interpretation, performance, and enforcement shall be governed and construed in accordance with the laws of the State of California. This Agreement has been executed and delivered in the State of California and the validity, interpretation, performance, and enforcement of any of the clauses of this Agreement shall be determined and governed by the laws of the State of California. Both parties further agree that Orange County, California, shall be the venue for any action or proceeding that may be brought or arise out of, in connection with or by reason of this Agreement. 15. PROFESSIONAL LICENSES Consultant shall, throughout the term of this Agreement, maintain all necessary licenses, permits, approvals, waivers, and exemptions necessary for the provision of the services hereunder and required by the laws and regulations of the United States, the State of California, the City of Santa Ana and all other governmental agencies. Consultant shall notify the City immediately and in writing of her inability to obtain or maintain such permits, licenses, approvals, waivers, and exemptions. Said inability shall be cause for termination of this Agreement. 16. MISCELLANEOUS PROVISIONS a. Each undersigned represents and warrants that its signature hereinbelow has the power, authority and right to bind their respective parties to each of the terms of this Agreement, and shall indemnify City fully, including reasonable costs and attorney's fees, for any injuries or damages to City in the event that such authority or power is not, in fact, held by the signatory or is withdrawn. b. All Exhibits referenced herein and attached hereto shall be incorporated as if fully set forth in the body of this Agreement. IN WITNESS WHEREOF, the parties hereto have executed this Agreement the date and year first above written. EST: p. PATRICIA E. HEALY Clerk of the Council APPROVED AS TO FORM: JOSEPH W.FLETCHER City Attorney By: La a'9heedy Assistant City Attorney RECOMMENDED S G. ROSS ive Director of the Works Agency APPROVAL: CITY OF SANTA ANA r� AVID . REAM City Manager CONSULTANT GRE ROC E President Tax ID# TZ- O 64 77 7d TouchVision, Inc. Quote cvch ^^vis�o j.1> Customer: Zed Kekula By: Greg Roche City of Santa Ana TouchVision, Inc. City Hall 11095 Knott Ave., Suite E, Cypress, CA 90630 20 Civic Center Plaza 714 - 886 -5307 Santa Ana, CA 92702 714 - 886 -5340 Fax (714)647 -5606 ZKokula@ci.santa-ana.ca.us Project: Santa Ana Kiosk Network Maintenance Date: October 17, 2003 (Rev. 1) Note: Pricing is valid for 30 days. Kiosk Network Maintenance Services 1 $9,950 $9,590 Provide on -call services for providing labor, equipment, and other expenses as directed by Santa Ana to maintain and update the kiosk network. This includes, at the discretion and direction of City of Santa Ana: • Repair /replace hardware components as- needed. • Perform routine onsite monthly maintenance to kiosk systems. • Provide incident response onsite service to address issues. • Enhance application content, such as adding additional traffic information content to Presenter screens. • Support application integration with Iteris. • Update other content areas of the kiosk application. Services are offered on a time and materials basis. Expenses will be billed per TouchVision standard terms. Labor expenses are billed at $100 per hour for the following services: • Field Service • Technical Support • Graphic Design • Application and Software Development • Project Management Invoices will be submitted monthly for labor and expenses incurred during the prior month. Invoices are due upon receipt. The amount shown is the "not -to- exceed" project budget. Presenter Attract Loop Manager Tools 2 $180 $360 Online web -based tools for updating and managing the playlist for the kiosk attract loop. Tools are $15 per month per kiosk. $9,950 EXHIBIT A Page 1 Initials: TouchVision, Inc. u�ctTvis; Quote ',° sari ai..ov �mw.n..o „a Warranty for Hardware. Cabinets, and Third Party Software 1. Cabinets and cabinet components manufactured of supplied by Toucb ision are warranted from manufacturing defects for a period of 90 days commencing on the date of shipment. During the warranty period. Customer is responsible for returning defective items to ToucrVision at Customer expense. Touch tision will repair or replace, at TouchVision option, returned items within 30 days Of receipt at TouchVision expense including return shipping. 2. Computer components and peripheral devices supplied by TouchVision are provided with the manufacturer's warranty passed through to Customer. During the first 12 rmnths from shipping, TouchVision will provide hardware depot warranty repair of equipment in which TouchVision will manage the repair of items with the manufacturer. Customer is responsible for removing items from cabinet (if applicable) and returning item to TouctiVision at Customer expense. TouchVision will pay for return ground shippng. After the first 12 months from shipping, TouchVision will provide hardware depot repair for $50 per incident plus in. and outbound shipping and manufacturer repair charges at cost plus 20 %. 3. TouchVision warranties are voided by onsuse, abuse. vandalism, damage, unsuitable environment, unsuitable power, or improper maintenance. 4. TcuchVision does not assume any responsibility or liability for Custorrer- provided items. TouchVisicn troubleshooting involving Customer - supplied items is an additional consulting service that may incur additional charges. 5. Third party software Owned by other companies is distributed subject to the licensing restncbons imposed by the software owner and is distributed as -is without any warranty or representation from TouchVision. Support is provided by the software owner. Standard Terms 1. Promise to Pay: Customer agrees to pay TouchVision for all purchases and charges subject to this Agreement according to TouchVision payment terns. If payment is not received when due, a late charge will be assessed on the day after the due dale and continuing each clay after until the amounts due are paid in full. The late charge will be the lesser of (a) maximum amount permitted by law or (b) 1.75% per month of the balance due. TouchVision reserves a purchase money security interest in all products purchased to secure payment. Customer agrees to pay TouchVision costs for collection, including reasonable attorney's fees and expenses. TouchViSion has the night to exercise all rights and remedies accorded to us by law to collect Payment of amounts due including retaining and /or repossessing all goods purchased on this Agreement and otherwise foreclose and enforce our Security Interest. 2. Payment Schedules: Payment schedules are subject to Customer credit approval. Items will be billed as specified in the Payment Schedule. Pricing does not include any sales ax, use ax, or any other such fees and charges unless specifically sated. Customer agrees to pay any such government-imposed fees, regardless of when the fees are imposed. Project start drainer is due prior to project start and is non - refundable. 3. Assignment of Payments: TouchVision reserves the option to assign project payments to a financing entity. Such assignment is for purposes of financing only and does not include assignment of work. Customer agrees to cooperate with the financing entity in a timely manner by signing assignment paperwork and other items that Trey be needed to complete the project financing. Customer agrees to comply with payment requirements of the financial institution. 4. Ownership of Cabinet Designs: Cabinet designs are Owned by the manufacturer and may not be copied or imitated. 5. Shipping and Insallabon: Cabinets and equipment are sold FOB point of Origin. Customer upon receipt must immediately inspect all delivered more. Customer is responsible for imrediately reposing any damage to the shipper prior to the shipper's departure from Customer facility. TouchVision will prepare the shipping insurance claim if Touchilision was contracted by Customer to Manage shipping. S. If delivery cannot occur within 30 days of Me unit being ready to ship, Nan Me Payment Schedule is modified so that the balance is then immediately due. 7. Storage: A storage fee of 425 Per month per unit will be assessed sating 30 days after the unit is ready to ship per TouchVision notification. 8. Unit pricing is based on the quantity specified as a single order. Partial or subdivided orders will be priced at rates applicable to Me size of the actual order. 9. Compliance Exclusions: Pricing does not include compliance with regulations or standards imposed by government agencies or standards organizations except those specifically identified by ToucbYsion. No other compliance is represented or implied. Individual components may comply with relevant requirements as determined and Conducted by the manufacturer of the component. Compliance with regulations, including but not limited to FCC and UL, as may be desired or required by Customer will be performed at extra cost. 10. Customer Acceptance Obligation: Customer shall have Me right to monitor Me performance of services, and within 30 business days after delivery, Customer must give notice to TouchVision of any claim of defcienmies, and Customer must specify the basis of Me claim in detail. The failure of Customer to comply with these conditions shall constitute inexpiable acceptance of the services by Customer. 11. Return Policy: All orders placed are final. 12. Jurisdiction: the Uniform Commercial Code as enacted by the Slate of California shall govern This Agreement, and all rights and obligations of the parties. 13. Termination Rights: TouchVision may terminate this Agreement in the event of any failure on the part of the Customer to pay fees due Touchvision. In the event of termination, all fees due under this Agreement shall become due and payable immediately and Without notice or demand by ToucriVision and all obligations of TouchVision under this Agreement shall immediately end. If the Customer terminates this agreement. TouchvIsion will be allowed to collect reasonable project closeout costs. 14. Warranty Disclaimer: TouchVision disclaims all implied warranties of Merchantability or fitness for a particular purpose and all other warantes of any nature except hose expressly sated herein. 15. Limited Liability: With regard to the services performed by TouchVision pursuant to the terms of the Agreement, To ichVision shall not be liable to Customer, or anyone who Trey claim any night due to his or her relationship with Customer, for any acts or contusions in the performance of said services on Me part of Touch Vision or on the part of the agents Or employees of TouchVision, except with said acts or omissions of TouchVision are due to willful misconduct. Customer shall "to Me Company free and harmYess from any obligations, costs, claims, judgments, attorney's fees, and attachments arising from or growing out of the services rendered to the Customer pursuant to the terms of this Agreement or in any way connected with the rendering of said services, except when same shall arse due to the willful misconduct as determined through the Dispute Resolution Procedure. Any liability imposed on TouchVision is strictly limited to the amount paid by the Customer for the work performed. TouchVislon shall not be liable for any incidental or consequential damages. 16. Partitioning: M any provision of this Agreement is found invalid or unenforceable under judicial decree w decision, Me remander shall remain valid and enforceable according to its terms. Without liming Me previous, it is expressly understood and agreed that each and every provision of this Agreement that provides for a luntation of liability, disclaimer of warranties, or exclusion of damages is intended by the parties to be Seve20ie and independent of any other provision and to be enforced as such. Further, it is expressly understood and agreed that if any remedy under this agreement Is determined to have failed of its essential purpose, all other Iim pittons of liability and exclusion of damages set forts in this section shall remain in full force and effect. Further, should one or more of the provisions of this Agreement be adjudged invalid by a court of competent jurisdiction. such determination shall have no effect whatsoever on the amount or amounts of compensation to be paid to the Company pursuant to the terns of this Agreement. 17. Entire Agreement: The parties acknowledge that this Agreement expresses their entire understanding and Agreement, and that there are no warranties, representations. covenants Or understandings made by either Party to Me other except such as are expressly set forth in this Agreement. The parties further acknowledge Mat this Agreement supersedes. terminates and othe.se renders null and void any and all prior Agreements, whether written or oral, entered into between the Customer and Touchysign win respect to the natters expressly set forth in this Agreement. Additional Terms for Software Application Development Proiects t. Respective Responsibilities: TouchVision (Company) personnel or contract personnel will perform all labor services as deemed appropriate by ToucnVision. TouctiVision is solely responsible for selection and assignment of personnel to a project. 2. Independent Contractor. Nothing in this Agreement will be deemed to pace Me parties in the relationship of employer / employee, partners, or pint ventures. Neither party shall have any fight to obligate or bind the other in any manner. Each party agrees and acknowledges that it shall not hold itself out as an authorized agent with the power to bind Me other party in any manner. Each party will be responsible for any withholding taxes, payroll axes, disability insurance payments, unemployment axes, and other similar taxes or charges with respect to its activities in relation to performance of its obligations under this agreement. 3. No Partnership: A partnership relationship is not created by this Agreement. 4. Proprietary Information: Each Party acknowledges Mat it nay be furnished win or may otherwise receive or have access to information or material which relates to past, present or future products, software, research development. inventions. processes, techniques. designs or technical information and data, marketing pans, and so on. (the Tropneary Information'). Each party agrees to preserve and protect the confidentiality of the Proprietary Information, whether disclosed to the other party, before this Agreement is signed or afterward. In addition, a party shall not disclose or disseminate the Proprietary Information for its own benefit or for the benefit of any third party. The previously sated obligations do not apply to any information which (1) is publicly known: (2) is given to a party by someone else who is not obligated to maintain confidentiality: a (3) a parry had already developed .Page 2 Initials: TouchVision, Inc. o "ctivil ". Quote prior to the day this Agreement is signed, as evidenced by documents. Neither party shall take or cause to be taken any physical fors of Proprietary Information (nor make copies of same) without the other party's written permission. Within three (3) days after the termination of this Agreement (or any other time at the other party's request), a party shall return to the other party all copies of Proprietary Information in tangible form. Despite any other provisions of this Agreement. the requirements of this Section shall survive termination of this Agreement. 5, Attorney Fees: If either party is required to retain the services of an attorney to enforce or otherwise litigate or defend any matter or claim arising out of or in connection with this Agreement, then the prevailing party shall be entitled to recover from the other party, in addition to any other relief awarded or granted. its reasonable costs and expenses (including attorneys' fees). 6. Notices: All notices, demands or consents required or permitted under this Agreement shall be In writing and shall be considered given: (i) when delivered personally; or (ii) when delivered by U.S. Mail with acknowledgment of receipt or by any commercial courser providing equivalent acknowledgment of receipt. 7. Publicity: Client grants permission to TouchVision to publicize the relationship created herein in appropriate professional methods including a press release and recognition in marketing materials and the TouchVision website. 8. Term: This Agreement terminates upon completion of work activities quoted above and receipt of final payment by Client. 9. Ownership of Software: TouchVision owns all software except commercial third party software owned by other companies. TouchVision grants Client a license to use TouchVision software on computers provided or approved by TouchVision. Any other use or distribution of TouchVision software is prohibited. Third party scft"re owned by other companies is distributed subject to the licensing restrictions Imposed by the software owner. 10. Software Warranty: Software is warranted from Substantial Defects. Substantial Defects are major problems with the software that prevent critical functions from fully working, and are under Complete TouchVision control. Substantial Defects exclude Minor Defects such as software bugs that are a minor nuisance or have sporadic, unpredictable operational impacts. TouchVision will correct Substantial Defects in a timely manner upon Client identification Of the problem and TouchVision duplication or confirmation of the problem. The time required to correct a defect depends on the seventy and Complexity of the defect. TouchVision will make reasonable efforts to correct Substantial Defects quickly. Minor Defects will be connected as part of a standard maintenance release or a wo(x -around will be pronged. Warranty period is 6 months or as long as TouchVision is retained for software maintenance. The warranty excludes changes in computers, technology, and communications that may occur over the course Of time that cause a problem with a system that was previously functional. 11. Restrictions of Use: TouchVision prohibits from interactive applications developed by TouchVision, or application hosting by TouchVision, any pornographic materials, libelous materials, copyright infringement, trademark infringement, and any other materials that are illegal or offensive in the sole view of TouchVision. Any such materials brought to Touch Vision's attention wilt be removed. TouchVision does not perform screening or censoring, but will respond to issues brought to TouchVision attention. 12. Responsibilities and Rights of Client: Client represents and warrants that all Client - provided materials are fully owned by Client, or that Client has secured required permissions to use the materials without royalties or other responsibilities placed on TouchVision. Client represents and warrants that work Contracted of TouchMsi0n does not infnnge on intellectual property owned by another person. TouchVision accepts no liability or responsibility for information, data, and services provided by the Client or the work contractetl of TouchVision. Client agrees to indemnify and hold harmless TouchVision from any claim or liability arising from TouchVision use of Client - provided m61eda15 or the performance of contractetl work. In the event of any claim or asserted liability against TouchVision arising from the above activity, TouchVSion agrees to provide Client win prompt written notice. Upon notice, Client agrees to defend and hold harAess TouchVision from any loss or liability. In the event Client fails to indemnify TouchVision, TouchVision has the right t0 defend or settle any claim w their own behalf and be fully reimbursed by Client for all costs and expenses of such defense or settlement. 13. Multimedia Responsibilities and Rights: Client Owns multimedia content developed by TouchVision for Client using materials provided by Client and in which TouchVision is fully Compensated by Client for services. No ownership rights for multimedia content owned by third parties are provided to Client. Client grants TouchVision non-exclusive, unrestricted, and royalty -free rights l0 use multimedia Content developed by TouchVision for Client. 14. Attribution Mark: TouchVision has the right to display attribution to TouchVision as a discrete mark on the main menu of the interactive application or in some other appropriate manner. TouchVision will make the mark a suitable, attractive element in the applicator, s0 that it does not conflict win the application. 15. Project budget is based on the three -step review - and - approval sequence for each project deliverable. The three steps are: (1) TouchVision submits a draft deliverable; (2) Client reviews draft and provides comments; and (3) TouchVision incorporates comments, completes revisions, and submits final deliverable to Client for confirmation that revisions were made as requested. Additional review cycles Con be performed at additional cost. Agreement Acceptance Company and Client agree that this Agreement will be considered signed when the signature of a party is delivered by fax. Signatures transmitted by fax shall have the same force and effect as original signatures. By: Name: Title: Date: Page 3 Initials: EXHIBIT B ADDITIONAL INSURED ENDORSEMENT FOR COMMERCIAL GENERAL LIABILITY POLICY Insurance Company This endorsement modifies such insurance as is afforded by the provisions of Policy relating to the following: 1. The City of Santa Ana, 20 Civic Center Plaza, Santa Ana, California 92701; its officers, employees, agents, volunteers and representatives are named as additional insureds ( "additional insureds ") with regard to liability and defense of suits arising from the operations and uses performed by or on behalf of the named insured. 2. With respect to claims arising out of the operations and uses performed by or on behalf of the named insured, such insurance as is afforded by this policy is primary and is not additional to or contributing with any other insurance carried by or for the benefit of the additional insureds. 3. This insurance applies separately to each insured against whom claim is made or suit is brought except with respect to the company's limits of liability. The inclusion of any person or organization as an insured shall not affect any right which such person or organization would have as a claimant if not so included. 4. With respect to the additional insureds, this insurance shall not be cancelled, or materially reduced in coverage or limits except after thirty (30) days written notice has been given to the City of Santa Ana, 20 Civic Center Plaza, Santa Ana, California 92701. (Completion of the following, including countersignature, is required to make this endorsement effective.) Effective Policy # Issued to this endorsement form as a part of Named Insured Countersigned by Authorized Representative 11/24/2003 10:27 FAX 7148865340 TouchVision r.A DAn A-c-oft-D. CERTIFICATE OF LIABILITY INSURANCF,,„C„Rl,TR 11121 103 PRODUCER I THIS CERTIFICATE IS ISSUED AS A MATTER OF INFORMATION ONLY AND CONFERS NO RIGHTS UPON THE CERTIFICATE The Dougherty Company, In,. P.C. Box 7277 HOLDER. THIS CERTIFICATE DOES NOT AMEND, EXTEND OR ALTER THE COVERAGE AFFORDED BY THE POLICIES BELOW. INSURERS AFFORDING COVERAGE Long Beach CA 90807 Phone:562 -424 -1621 Fax:562- 490 -0432 INSURED INSURER A. Hartford Insurance Co an INSURER B 01/10/04 INSURERC. lyoogh Vision Inc. 13095 Knott venue Cypress CA 9 630 INSURER D: INSURER E: rnvcoencs THE POLICIES OF INSURANCE LISTED BELOW HAVE BEEN ISSUEO TO THE INSURED NAMED ABOVE FOR 74E POLICY PERIOD INDICATED, NOTWITHSTANOINO ANY REOUIREMENT, TERM OR CONDITION OF ANY CONTRACT OR OTHER DOCUMENT WITH RESPECT TO WHICH THIS CPR MFICATE NUT BE ISSUED OR MAY PERTAIN, THE INSURANCE AFFORDED BY THE POLICIES DESCRIBED HEREIN IS SUBJECT TO ALL THE TERMS, EXCLUSIONS AND CONDITIONS OF SUCH POLICIES. AGGREGATE LIMITS SHOWN MAY HAVE BEEN REDUCED BY PAU CLAWS. LTR TYPE OF BISUMNCE POLICY NUMBER OATEN Dl1i MI LIMITS • GENEML IJABK.RT X COMMERCMLGENERALLUBErn CLAIMSMAGE ❑X OCCUR. 72 SBA XV4568 -rte - 01/10/03 01/10/04 EADH OCCURRENCE S1 000 000 F1112.H C(AYNOM) 1$300,000 MED EXP Any— PMWIII $ 10,000 PERSONAL! ADV RUURY S1 000',000 GENERAL AGGREGATE 1$2,000,000 _ GENL AGGREGATE UNIT APPLWZPER'. X POLICY 7 PRO. JECT LOC PROOVOTS.COMWOPAGC $2 GOO, 000 • AUTOMOBILE X LIABILITY ANY AUTO ALL OWNED AUTOS SCHEDULEDAUTOS HIRED AUTOS NON -OWNED AUTOS 12 SBA KF4568 01/10/03 01/10/04 �BOKe MBINGLE LIMIT !1,000,000 BODILY INJURY (PR P..) ! BOGEY WJURv (Pa LNG) $ X PROPERTYDAMAGE (PF,PwJ�M) ! CARAOE LIABILITY ANY AUTO AUTO ONLY -EA ACCIDENT –FS OTHER THAN EAACC AUTO 0NLY1 AW ! $ A BXCBBS LMBILFTY X OCCV0. CLAIMS MADE DEDUCTIBLE X RETENTION %10,00 72 SBA KF4568 01/10/03 01/10/04 EACH DCCUNRE.CE $2,000,000 AGGREGATE $2,000,000 S $ y WORKERS COMPENSATION AND EMPLOYERS' LIABLITY TORY LIMITS ER EL. EACH ACCIDENT EACH MIDEN:Y S E.L. gSFAgEEA EMPLOYE $ LIMIT S.. A OTHER Hired Auto Physical Damage 72 SBA KF4568 01/10/03 01/10/04 Ded $500 50,000 DESCRIPTION or OPERATIONSILOG NSNENICLE.SIEXCLUSK)NS ADDEO BY ENOOKSL1i, I rSPECIALPRDUSIONS 10 days notice of Cancellation For nonpayment Of premium. Additional insured endorsement attached. $." •' , SHOULD ANY OF THE ABOVE GESCRBIED POLICIES BE CANCELLED BEFORE THE 01 PIRATKIN DATE THEREOF. THE ISSUING INSURERWILL WKWAVOR7p MAR +0 DAYSWRITTEN City Of Santa Ana NOTICE TO THE CERTIFICATE HOLDER NAMED TO THE LEFT, BMifAbB8EY6'BRrRBIHEL Public Works Agency 20 civic Center Plaza, M -43 ' P O Box 1988 RED. Santa Ana CA 92702 AUTHOMEEDREPRESENYATNE , 11/18/2003 14:28 FAX 860 723 4363 Got 31 03 08:30a TeLDWIS1014 28/30/2003 16:38 fl48865348 EXHIBIT B • • • ui_; 92 1 Its Wffik?awo Insurance Company uaeT2QRD CARTALry INS-CO.— This endorserrtent modifies such insurance as is afforded by the provisions of Policy p 72 SEA KF4568 relating to the following: 1. The City of Santa Ana, 20 Civic Center Plaza, Santa Ana, California 92701; its officers, employem agents, volunteers and repreSemativcs are named as additional insureds ( "additional insureds ") with regard to liability and defense of suits arising from ilia operations and uses performed by or on behalf of the named insured. 2. With respect to claims arising out of the operations and uses performed by or on behalf of the named insured, such insurance as is afforded by this policy is primary and is not additional to or contributing with any other insurance carried by or for the benefit of the additional insureds. 3. This insurance applies separately to each insured against whom claim is made or suit is brought except with respect to the company's limits of liability. The inclusion of any person or organization at an insured shell not affect any right which such person or organization would have as a cisimaot if not so included. lj� 002/002 r.«. ... p.3 4. SHOULD ANY OF THE ABOVE DESCRIBED POLICIES BE CANCELLED BEFORE THE E.PIRATION DATE THEREOF, THE ISSUING INSURER WILL ENDEAVOR TO MAIL 30 DAYS WRITTEN NOTICE (10 DAYS FOR NON-PAYMENT) TO THE CERTIFICATE. HOLDER, BUT FAILURE TO DO $O SHAL14 7PO�$FI 'PC OBLIGgTioi� OR LIASII I1Y OF ANY KdTND tJ ON �fIE IN TTRe t, ITS AGENTS "OR (Completion o e llowing. inc u mg countersignature, is require to a th s eudo m REPRESENTATIVES. effective.) Effective 11/03/2003 this endoraemeot form as a part of Policy d Issued to W Counteraignol by 11 10/31/2003 11:14AN Ae0RD CERTIFICATE OF LIABILITY INSURANC4 CSR JR DATE(MM /DD/YY) POLICY NUMBER DATE NMIDDm OUCH -1 03/16/04 PRODUCER A THIS CERTIFICATE IS ISSUED AS A MATTER OF INFORMATION 72 SBA KF4568 01/10/04 ONLY AND CONFERS NO RIGHTS UPON THE CERTIFICATE The Dougherty Company, Inc. HOLDER. THIS CERTIFICATE DOES NOT AMEND, EXTEND OR P.O. Box 7277 MED EXP (Any one person) ALTER THE COVERAGE AFFORDED BY THE POLICIES BELOW. Long Beach CA 90807 Phone:562- 424 -1621 Fax:562- 490 -0432 INSURERS AFFORDING COVERAGE INSURED Cti /lJ TC�. INSURER Hartford Insurance Company INSURER B: Touch A ' aoo Vision Inc. N, .3 /[� INSURER C' 11095 Knott Avenue 01/10/04 INSURER D. Cypress CA 90630 INSURER E: BODILY INJURY (Per person) $ THE POLICIES OF INSURANCE LISTED BELOW HAVE BEEN ISSUED TO THE INSURED NAMED ABOVE FOR THE POLICY PERIOD INDICATED, NOTWITHSTANDING ANY REQUIREMENT, TERM OR CONDITION OF ANY CONTRACT OR OTHER DOCUMENT WITH RESPECT TO WHICH THIS CERTIFICATE MAY BE ISSUED OR MAY PERTAIN, THE INSURANCE AFFORDED BY THE POLICIES DESCRIBED HEREIN IS SUBJECT TO ALL THE TERMS, EXCLUSIONS AND CONDITIONS OF SUCH POLICIES. AGGREGATE LIMITS SHOWN MAY HAVE BEEN REDUCED BY PAID CLAIMS. ILTR TYPE OF INSURANCE POLICY NUMBER DATE NMIDDm DATEYMM /DDm N LIMITS A GENERAL LIABILITY X COMMERCIAL GENERAL LIABILITY CLAIMS MADE L-L OCCUR 72 SBA KF4568 01/10/04 01/10/05 EACH OCCURRENCE $ 1,000,000 FIRE DAMAGE (Any one fire) $300x000 MED EXP (Any one person) $ 10,000 PERSONAL B ADV INJURY $1,000,000 GENERAL AGGREGATE $2,000,000 GEN L AGGREGATE LIMIT APPLIES PER X POLICY PRO- JECT LOG PRODUCTS - COMP /OP AGO $2,000 000 " A AUTOMOBILE LIABILITY ANY AUTO ALL OWNED AUTOS SCHEDULED AUTOS HIREDAUTOS NON -OWNED AUTOS 72 SBA KF4568 01/10/04 01 /10 /05 COMBINED SINGLE LIMIT (Ea accident) $1,000,000 BODILY INJURY (Per person) $ X BODILY INJURY (Per accident) $ X PROPERTY DAMAGE (Per accident) $ GARAGE LIABILITY ANY AUTO AUTO ONLY - EA ACCIDENT $ OTHER THAN EA ACC AUTO ONLY AGG $ $ A EXCESS LIABILITY X OCCUR CLAIMS MADE DEDUCTIBLE X RETENTION $ SO, 000 72 SBA KF4568 01/10/04 01/10/05 EACH OCCURRENCE $2,000,000 AGGREGATE $2,000000 8 - $ A WORKERS COMPENSATION AND EMPLOYERS' LIABILITY OTHER Hired Auto Ph sical Dama e 72 SBA KF4568 01/10/04 01/10/05 TORY LIMITS ER E.L. EACH ACCIDENT .$ E.L. DISEASE - EA EMPLOYEE $ E.L. DISEASE - POLICY LIMIT $ Ded $500 50,000 DESCRIPTION OF OPERATIONS /LOCATIONSNEHICLES /EXCLUSIONS ADDED BY ENDORSEMENT /SPECIAL PROVISIONS 10 days notice of cancellation for nonpayment of premium. Additional insured endorsement attached. rPOTIPIr ATC Ynl non 11 v ........... ... SANTAAN SHOULD ANY OF THE ABOVE DESCRIBED POLICIES BE CANCELLED BEFORE THE EXPIRATIOI DATE THEREOF, THE ISSUING INSURER WILL£NBEAYBRip MAIL 30 DAYS WRITTEN City of Santa Ana NOTICE TO THE CERTIFICATE HOLDER NAMED TO THE LEFT, BtlT- F**iHK *gHSq*B-6Hii Public Works Agency 20 Civic Center Plaza, M -43 40 OBERIAf ON P O Box 1988 REPRESEH:ATV . Santa Ana CA 92702 AUTHORIZED REPRESENTATIV 25-S(7197) ©ACORD CORPORATInN 1QRR POLICY NUMBER: 72 SBA KF4568 COMMERCIAL GENERAL LIABILITY THIS ENDORSEMENT CHANGES THE POLICY, PLEASE READ IT CAREFULLY. ADDITIONAL INSURED - OWNERS, LESSEES OR CONTRACTORS (FORM B) This endorsement modifies insurance provided under the following: COMMERCIAL GENERAL LIABILITY COVERAGE PART. SCHEDULE Name of Person or Organization: City of Santa Ana (If no entry appears above, information required to complete this endorsement will be shown in the Declarations as applicable to this endorsement.) WHO IS AN INSURED (Section II) is amended to include as an insured the person or organization shown in the Schedule, but only with respect to liability arising out of "your work" for that insured by or for you. CG20 10 11 85 Copyright Insurance Services Office, Inc., 1984