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HomeMy WebLinkAboutMOBILE ACCESS SOFTWARE 1004 AGREEMENT TERMINATION Please complete this form when the attached agreement is no longer in effect. Return form to the Sr_ Deputy Clerk of the Council (M-30). Call 647-5238 if you have any questions. The agreement with i� -L' j v CQ NOA--�"�l� was completed on and 1 ``T and final payment has been made. Department: Signature:,in Date: ((j ` rj_ CH City of Santa Ana Revised 8-7-03 Clerk of the Council ` • A-2004-014 INS!Ur NCE NO ON ;ILE WORT, MAY C;OT PROCEED CLERK: OF COUNCIL DATE. a' /a. —OSoftware Maintenance Agreement AGREEMENT by and between MOBILE ACCESS SOFTWARE, INC., ("Licensor") C. �p having its principal place of business at 4065 Hancock Street, Suite 200 San Diego, 92110, and The City of Santa Ana, a charter city and municipal corporation organized and existing under the Constitution and laws of the State of California ("Customer") having its principal place of business at 20 Civic Center Plaza, Santa Ana, California 92702. WHEREAS, Licensor has licensed to Customer certain software products as specified in the Software License Agreement for the Cyber MCT (Police Access) ("Software Products"). Customer wishes to have Licensor perform software maintenance services on the licensed products pursuant to the following terms and conditions: Compensation Amount of the contract: Licensor agrees to accept as total payment for its services and products mentioned herein, an amount not to exceed $51,000.00 during the term of this Agreement. Software Products Covered The software products covered under this Agreement are the Licensor's Software Products listed above and as more fully described in the Software License Agreement, and as updated with improvements or modifications furnished to Customer under the Warranty Agreement or this Software Maintenance Agreement. Corrections During the term of this Agreement, Licensor shall provide the services necessary to remedy any software error which is attributed to Licensor and which significantly affects use of the Software Products for the purposes defined in the product specification or the contract Functional Specification Document and is reproducible and verified by the Licensor ("Software Error"). Such services shall be accomplished in accordance with the priority system outlined below after Customer has identified and notified Licensor of any such error in accordance with Licensor's reporting procedures. Licensor shall provide service and support from 8:00 AM until 5:00 PM Monday through Friday, holidays excepted. Priority One Critical Software Errors: Software Errors that prevent or substantially interfere with operation of the Deliverables for their primary intended purpose on a system wide basis, as described in the Functional Specification Document, such as those errors that can cause loss of data or prevent the product from running. Response: Upon receipt of notification from Customer, Licensor shall respond within the next four (4) hours of the business day followed by action to fix the problem as soon as reasonably possible, including, where feasible, providing a workaround for the problem pending such resolution. Priority Two Major Software Errors: Software Errors that do not prevent or substantially interfere with operation of the Deliverables for their primary intended purpose or are not system wide, but that do prevent or materially interfere with end user performance of common functions described in the Functional Specification Document Response: Licensor shall respond within the next eight (8) hours of the business day(s), followed by action to provide a workaround and/or a fix via an upgrade to the Deliverables within a reasonable time, taking into consideration the effect of the Software Error on Customer's operation of the Deliverables. Priority Three Minor Software Errors: All other Software Errors not described above. Response: Licensor shall call back within five (5) business days, and provide correction within a reasonable time, taking into consideration the nature of the error, the effect upon operation of the Deliverables, and the reasonable requests of the Customer with respect to such correction. Where appropriate, under such circumstances, correction may occur in a scheduled upgrade to the Deliverable. Notification by Customer Licensor shall provide a soft copy of a form, the Software Error Notification Form ("Form"), to the Customer. The Customer shall provide the information requested on the Form and transmit the Form by e-mail or fax to one of the following numbers. E-mail: support@masiweb.com Fax: (858)586-1798 Receipt of the notification by either method outlined above will trigger the response times required under the previous paragraph. Licensor shall also provide Customer a separate telephone number that will be specifically allocated for customers to address service issues. Service Tel. No. (858) 271-9198 Ext. 3 The Licensor may, from time -to -time, make changes to its notification procedures, forms or numbers. Licensor shall immediately notify Customer, in writing, of any such changes. Support by Customer Customer agrees to provide Licensor with data, as requested, and with sufficient support and test time on Customer's computer system to duplicate the problem, verify that the problem is with Licensor's Software Products, and verify that the problem has been corrected. Customer shall provide such system administration services on Customer's system and network as may be required to keep the system and network upgraded and in acceptable operating condition. System administration services are not provided by Licensor under this Agreement. Corrections and support efforts for network upgrades and new equipment or defects and difficulties due to system administration issues shall be billed at the Contractor's standard charges for labor, material and per diem. Software Improvements and Upgrades During the term of this Agreement, Licensor shall supply Customer with any improvements or upgrades to those functions or features of the Software Products which were described in the Functional Specification Document and supplied under the applicable contract and which are not priced separately. Installation of Corrections, Improvements or Upgrades Licensor shall provide changes to the Software Products including without limitation; updates, upgrades, releases, patches, corrections or improvements by telephone modem. Customer shall provide installation, distribution, support or access as may be reasonably required to successfully install the changes. Designated Customer Contacts Customer shall designate a specific individual(s) as authorized and responsible for meeting Customer's obligations under this Agreement and to initiate or approve requests to or from the Licensor in connection with the requirements herein. Customer Modifications Customer shall inform Licensor in writing of any modifications made by Customer to the Software Products or interfaces to the Software Products. Modifications to the Software Products may void this Agreement and/or the Software License Agreement. Refer to the Software License Agreement for limitations as to Customer rights and use. Licensor shall not be responsible, under this Agreement, for maintaining Customer modified portions of the Software Products or interfaces or for maintaining portions of the Software Products affected by Customer modified portions of the Software Products or interfaces. Corrections for difficulties or defects traceable to Customer's errors or software changes shall be billed at Licensor's standard time and material charges. Telecommunications Customer shall install and maintain for the duration of this Agreement, a modem and associated dial -up telephone line. Customer shall pay for installation, maintenance and use of such equipment and associated telephone line use charges. Licensor, at its option, shall use this modem and telephone line in connection with maintenance and error correction. Customer is entitled to require that modem access by Licensor shall be subject to prior approval by Customer in each instance. Term The term of this Agreement shall commence upon conclusion of the warranty period under the Software License Agreement, and shall continue for a period of one year, after which it may be terminated by either party on sixty (60) days prior written notice. If no notice is given, the Agreement will be automatically renewed for one-year intervals, subject to sixty (60) days notice of cancellation and city council approval. In order to provide for timely, uninterrupted service to Customer by Licensor, the Agreement shall include those services rendered from June 1, 2002 to the termination date. Travel Expenses Customer shall reimburse Licensor for any out-of-pocket expenses as may be necessary in connection with the duties performed under this Agreement by Licensor, including travel to and from Customer's site, lodging, meals, telephone and shipping, Adjustments to Terms and Conditions At any time after the expiration of the initial one-year term, Licensor may change its software maintenance fees, terms and conditions upon 90 days' written notice to Customer. Title to Software Systems and Confidentiality Any changes, additions, and enhancements in the form of new or partial programs or documentation as may be provided under this Agreement shall become and remain proprietary to Licensor. The restrictions, limited use, and confidentiality requirements under the original contract or the Software License Agreement shall include any such additional programming and documentation provided under this Agreement. The Software Products and any improvements, modifications and changes to the Software Products provided hereunder and all copies thereof are proprietary to Licensor and title thereto remains with the Licensor. All applicable rights to patents, copyrights, trademarks, and trade secrets in the Software Products and the improvements, modifications and changes thereto are and shall remain with the Licensor. Customer shall not sell, transfer, publish, disclose, display or otherwise make available the Software Products or improvements, modifications or changes thereto or copies thereof to others. Customer agrees to secure and protect each program, Software Product and copies thereof in a manner consistent with the maintenance of Licensor's rights therein and to take appropriate action by instruction or agreement with its employees who are permitted access to each program or Software Product to satisfy its obligations hereunder. All copies of the Software Products, or improvements, modifications or changes thereto made by Customer including translations, compilations, partial copies with modifications and updated works are the property of Licensor. Violation of any provisions herein shall be the basis for immediate termination of this Software Maintenance Agreement. Termination of this Agreement shall be in addition to and not in lieu of any equitable remedies available to Licensor. Exclusion of Liability LICENSOR MAKES AND CUSTOMER RECEIVES NO WARRANTY EXPRESS OR IMPLIED AND THERE IS EXPRESSLY EXCLUDED ALL WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. LICENSOR SHALL HAVE NO LIABILITY WITH RESPECT TO ITS OBLIGATIONS UNDER THIS AGREEMENT FOR CONSEQUENTIAL, EXEMPLARY, OR INCIDENTAL DAMAGES EVEN IF IT HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. Termination In the event of termination of the Software License Agreement referred to above, all maintenance fees will remain the property of the Licensor, and Licensor's obligations under this Software Maintenance Agreement shall immediately end. Licensor may terminate this Agreement in the event of default by Customer under the terms of the applicable Contract or Purchase Agreement or the Software License Agreement or in the event that Customer does not make payments in a timely manner. Taxes Customer shall, in addition to the other amounts payable under this Agreement, pay all sales and other taxes, national, state, or otherwise, however designated, which are levied or imposed by reason of the transaction contemplated by this Agreement. Without limiting the foregoing, Customer shall promptly pay to Licensor an amount equal to any such items actually paid, or required to be collected or paid by Licensor. General • Each party acknowledges that it has read this Agreement, understands it, and agrees to be bound by its terms and further agrees that it is the complete and exclusive statement of the Agreement between the parties, which supersedes and merges all prior proposals, understandings and all other agreements oral and written, between the parties relating to this Agreement. This Agreement may not be modified or altered except by a written instrument duly executed by both parties. This Agreement and performance hereunder shall be governed by and construed in accordance with the laws of the State of California. • If any provision of this Agreement shall be held to be invalid, illegal or unenforceable, the validity, legality and enforceability of the remaining provisions shall in no way be affected or impaired thereby. • Customer may not assign, without the prior written consent of Licensor, its rights, duties or obligations under this Agreement to any person or entity, in whole or in part. The waiver or failure of either party to exercise in any respect any right provided for herein shall not be deemed a waiver of any further right hereunder. Indemnification Licensor shall indemnify, defend and hold harmless Customer, its officers, agents, employees, Licensors, special counsel, and representatives from any claim, demand, liability, judgment or expense arising out of Licensor's performance pursuant to this Agreement or from any claim that Licensor's services or products infringe a proprietary right, patent or copyright; provided however, Licensor shall not be obligated to indemnify and hold harmless Customer to the extent that such claim, demand, liability, judgment or expense results from Customer's sole negligence. Insurance Prior to undertaking performance of work under this Agreement, Licensor shall maintain and shall require its subcontractors, if any, to obtain and maintain insurance as described below: a. Commercial General Liability Insurance. Licensor shall maintain commercial general liability insurance naming the Customer, 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 Licensor'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. Licensor shall supply Customer 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, Licensor, if Licensor 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, Licensor 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 Licensor pursuant to this section: (i) Licensor 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 Customer 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 Customer. f. If Licensor fails or refuses to produce or maintain the insurance required by this section or fails or refuses to furnish the Customer with required proof that insurance has been procured and is in force and paid for, the Customer shall have the right, at the Customer's election, to forthwith terminate this Agreement. Such termination shall not effect Licensor's right to be paid for its time and materials expended prior to notification of termination. Licensor waives the right to receive compensation and agrees to indemnify the Customer for any work performed prior to approval of insurance by the Customer. Confidentiality If Licensor receives from the Customer information which due to the nature of such information is reasonably understood to be confidential and/or proprietary, Licensor 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 Licensor disclosed in a publicly available source; (c) is in rightful possession of the Licensor without an obligation of confidentiality; (d) is required to be disclosed by operation of law; or (e) is independently developed by the Licensor without reference to information disclosed by the Customer. Conflict Of Interest Clause Licensor 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. The Parties have entered this Agreement as of this ai day of 2003. �— MOBILE ACCESS SOFTWARE, INC) M/ hC Date�I ���% �Q��3 By: ti/'f ()(4 t _ tW Name: t o b-r I" &- pole l/ l oy A, [�ATTEST: PATRICIA E. HEALY Clerk of the Council APPROVED AS TO FORM: JOSEPH W.FLETCHER City Attorney By:71�- Michael Vigliotta Deputy City Attorney M CITY OF �ANT"NA I 1 DAVID N. REAM City Manager