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Home My WebLink AboutINTERGRAPH INC. 3 AGREEMENT TERMINATlOlik JUN19' - Please complete this form when the attached agreement is no lOner in effect~ 10: OS Cl / , Return form to the Sr. Deputy Clerk of the Council (M-30). 6kf647-~238tf5l\Hf\~e any questions.' J,iCIL ; The agreement with ~+-me~+ ~. was completed on '5130/01 , , No.A-.JD05-U&,3 , and final payment has been made. Signature: .):1+ G~ h/IO'/ d 7 Department: Date: Rcvised 8-7-03 City of Santa Ana Clerk of the Council :h/\!'-i :\1"1 INTE~?I\?H 'iV') Y. r'/~,\,' f;'~~UcELu ".d\~\ OF c.OU~JC!L :Jjiit SEP 2 0 2005 Mapping and GIS Solutions f\' pvJy:)- ..). t5 Cat-llL 1.0 PERIOD OF PERFORMANCE During the Contract period specified on the Intergraph Mapping and GIS Solutions (hereinafter referred to as "Intergraph") Quote/Contract, the Customer authorizes Intergraph to provide maintenance service for all items listed on the Quote/Contract. Such services will be provided in accordance with the Scope of Work as specified in Section 3.0, or if applicable, an additional separately executed Scope of Work. Approximately sixty (60) days prior to the Contract expiration date, Intergraph will submit to the Customer a Quote that includes pricing for the upcoming twelve (\2) month period. The Customer must provide Intergraph with written notice of intent to either terminate coverage or agree to the rates and terms of the Quote by providing a signed Contract or Purchase Order. If Customer fails to provide a timely written notice of intent, Intergraph will, at its option, either assume the offer has been accepted by the Customer, or terminate coverage. If Intergraph assumes the Customer has accepted the offer, the Customer is liable for charges incurred from the new Contract start date until such time as the Customer notifies Intergraph of its intent to terminate the Contract. 2.0 CHANGES AND TERMINATION 2.1 Changes This Contract can be changed or modified in one of the following ways: (a) During the Contract period, Intergraph provides a thirty (30) day written notice of their intent to remove any individnal software product(s) from coverage under this Contract. (b) Customer may remove software product(s) from maintenance coverage at Contract renewal. Maintenance may not be terminated for individual software licenses that have been installed multiple times at one site or for software licenses that are being used interdependently from one site. ( c) Any other changes or modifications must be by mutual agreement. A-2005-083 Piil-[; CUSTOMER SERVICE Software Maintenance Service Contract 2.2 Tennination lbis Contract shall continue in full force beyond the stated term until termination is accomplished in one of the following ways: (a) Customer or Intergraph provides a written notice of intent to terminate. lbis Contract shal1 terminate thirty (30) days after the receipt of the notice. (b) A new Contract between Customer and Intergraph is signed into effect for similar service. (e) If either party petitions for reorganization under the Bankruptcy Act or is adjudicated as bankrupt, or a receiver is appointed for either party's business, or the Customer fuils to pay Intergraph any amount when due hereunder. 3.0 INTERGRAPH SCOPE OF WORK Software Support 3.1 Premium Service Software support will be provided to the Customer during the hours of 7:00 a.m to 5:30 p.m Central Time, Monday through Friday, excluding Intergraph-observed holidays. Software support will include and be limited to the following for all software products listed on the Quote/Contract: (a) Unlimited support via Help Desk (standard business hours) or Web. (b) Twenty-four-hour-per-<lay/seven-<lays-per-week access to problem Knowledge Base, an on-line self-help tool. (c) The ability to perform Web queries, submit updates, and obtain status of service requests 24 hours per day, 7 days per week (d) Software upgrades. Support services are limited to specific products as shown on the Quote/Contract functioning on the appropriate Intergraph supported operating system Intergraph will provide upgrades, when made available by Intergraph, for which Premium Service has been purchased. Upgrade( s) refers to subsequent releases to the software products covered under the Contract. 1 Premium Service may not be available for all software products. 3.2 Advantage Service Advantage service includes the following coverage: (a) Unlimited support via Help Desk (standard business hours) or Web. (b) Twenty-four-hour-per-day/seven-days-per-week access to problem Knowledge Base, an on-line self-help tool. (c) The ability to perform Web queries, submit updates, and obtain status of service requests 24 hours per day, 7 days per week. Advantage Service does not provide the Customer with upgrades or new releases to any software. Advantage Service may not be available on all software products. 3.3 Incident Service Incident service is defined as phone support for the number of incidents purchased or one year, whichever comes first. The Customer can purchase additional incident packs at any time. An "incident" is a problem !bat cannot be broken down into subordinate problems. For a request with subordinate problems, each problem is considered a separate incident, and therefore must be submitted as a separate support request. Determination of what constitutes a separate incident will be at Intergraph' s discretion. Incident service does not provide the Customer with upgrades to any software. Incident service may not be available for all software products. 4.0 LAPSE IN SOFIWARE MAINTENANCE COVERAGE Software reinstatement fees will be applicable if there is a lapse in maintenance service. Intergraph will provide a quotation upon request. 5.0 WARRANTIES INTERGRAPH WARRANTS FOR A PERIOD OF TIDRTY (30) CALENDAR DAYS FROM THE DATE OF SIUPMENT THAT SOFIWARE DELIVERY MEDIA SHAlL BE FREE FROM DEFECf IN MATERIAL OR WORKMANSIUP. INTERGRAPH DOES NOT WARRANT THAT THE SOFIWARE WILL MEET CUSTOMER'S REQUIREMENTS, AND UNDER NO CIRCUMSTANCES DOES INTERGRAPH WARRANT THAT THE SOFIWARE WILL OPERATE UNINTERRUPTED OR ERROR FREE. INTERGRAPH'S ENTIRE LIABILITY UNDER TIllS WARRANTY AND CUSTOMER'S EXCLUSIVE REMEDY SHALL BE AT INTERGRAPH'S SOLE AND ABSOLUTE DISCRETION, (1) EITHER THE REPAIR OR REPLACEMENT OF ANY SOFIW ARE ITEM THAT DOES NOT MEET THE RESPECfIVE WARRANTIES GIVEN ABOVE OR (2) A REFUND OF THE CHARGES FOR THE WARRANTED ITEM. THE FOREGOING WARRANTIES ARE VOID IF FAILURE OF A WARRANTED ITEM RESULTS DIRECTLY, OR INDIRECTLY, FROM AN UNAUTHORIZED MODIFICATION OF A WARRANTED ITEM; AN UNAUTHORIZED ATTEMPT TO REPAIR A WARRANTED ITEM; OR MISUSE OF A WARRANTED ITEM, INCLUDING WITHOUT LIMITATION USE OF WARRANTED ITEM UNDER ABNORMAL OPERATING CONDmONS OR WITHOUT ROUTINELY MAINTAINING A WARRANTED ITEM. CUSTOMER SHALL PROMPTLY NOTIFY INTERGRAPH OF ANY SUSPECTED DEFECTS IN SOFTWARE DELIVERY MEDIA. 6.0 DISCLAIMER THE FOREGOING WARRANTIES ARE IN LIEU OF ALL OTHER WARRANTIES, WHETHER EXPRESS OR IMPLIED. INTERGRAPH DISCLAIMS ALL OTHER WARRANTIES, WHETHER EXPRESS OR IMPLIED, WITH REGARD TO SOFIWARE OR SERVICES SUPPLIED HEREUNDER, INCLUDING ALL IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FORA PARTICULAR PURPOSE. 7.0 LIMITATION OF LIABILITY INTERGRAPH SHAlL NOT BE LIABLE FOR ANY INDIRECf, CONSEQUENTIAL, INCIDENTAL, SPECIAL, PUNmVE, OR DIRECT DAMAGES, ARISING OUT OF, OR IN CONNECTION WITH THE FOREGOING WARRANTIES, OR THE PERFORMANCE OF TIllS CONTRACf, INCLUDING BUT NOT LIM1TED TO LOSS OF REVENUE OR PROFIT, OR LOSS OR CORRUPTION OF DATA. IN NO EVENT SHALL INTERGRAPH BE RESPONSffiLE FOR DAMAGES IN EXCESS OF THE AMOUNT DUE AND PAYABLE, OR OTHERWISE OUTSTANDING, 2 UNDER TIllS CONTRACT AS OF TIIE DATE OF ANY SUCH WARRANTY CLAIM. 8.0 CONTRACT ADDmONS In the event Customer purchases additional software during the term of this Contract, Intergraph will notifY the Customer by submitting, in writing, a Quote to this Contract reflecting the additional items, effective date( s) of service, and charges for those items under the Terms and Conditions of this Contract. Unless Intergraph receives written notification declining service from Customer within thirty (30) days of the date of the Quote as described above, support services and the appropriate monthly charges will begin on the effective date as shown on the Contract Quote. Customer shall purchase maintenance coverage on all software license additions to a site obtained via intra- company transfer of the software license. Contract additions by intra-company software license transfer shall be in accordance with the current Software Transfer Policy. Maintenance cannot be declined for individual software licenses that have been installed multiple times at one site or for software licenses, which are being used interdependently from one site. 9.0 CHARGES Contracts totaling $12.000 or less on an annnal basis: Annual charges are due and payable in full on the first day of the Contract. The Contract shall begin on the first day of the month. A full month's maintenance charge will be invoiced for any partial month's utilization. Services on products added to this Contract for any period of time less than one (I) year shall be due and payable in full on the date that the product is added to the Contract. Payments that are not received thirty (30) days from date of invoice are subject to interest accrued at one and one-half percent (1 v,%) permonth or the maximum allowed by law. Contracts totaling in excess of$12.ooo on an annual basis: Monthly charges, the first of which is due and payable on the first day of the month in which the Contract begins, shall be invoiced in arrears. A full month's maintenance charge will be invoiced for any partial month's utilization. Each subsequent monthly payment will be due on the first day of each month. Payments that are not received thirty (30) days from date of invoice are subject to interest accrued at one and one-half percent (1 v,%) per month or the maximum allowed by law. Maintenance services are non-discountable. 10.0 TAXES All maintenance charges are exclusive of, and Customer shall be liable for, and shall indemnify and hold Intergraph harmless from and against, any and all United States and/or any other country's federal, state, municipal, or other governmental, withholding, excise, sales, use, value added or other taxes, tariffs, custom duties and importing fees (''Taxes''). Taxes shall expressly exclude any United States (i) federal, (ii) state, (iii) municipal, (iv) or other governmental income taxes, franchise taxes, business license fees and other like taxes measured by Intergraph's income, capital and/or assets. The total invoice amount for maintenance charges is subject to increase by the amount of any Taxes which Intergraph is required to withhold, collect, or pay so that Intergraph receives the full amount of the maintenance charges. Any certificate to exempt this Agreement from tax liability or other documentary evidence of statutory exemption shall be obtained by Customer at Customer's expense. 11.0 NOTICES All written notices required by either party under this Conttact shall be deemed to have been given on the date such notice is mailed to the other party. 12.0 EXCLUDED SERVICES Services provided by Intergraph that are outside the scope of and/or specifically excluded from this Contract will be invoiced at then prevailing per-aill rates (portal to portal). Support services are limited to specific products as shown on the Quote/Contract, functioning on the appropriate Intergraph supported operating system. Software support for the following are outside the scope of this Contract and may be available under separate Contract at an additional charge: (a) System installation (hardware/software platfonns) (b) Network configuration support for third party products not sold to the Customer by Intergraph (e) System-level tuning and optimization (d) Programming development (e) Customization Software Support provided by Intergraph under this Contract shall not include support calls that are necessary due to 3 failure of software not supplied by Intergraph and not covered in this Contract. 13.0 CUSTOMER RESPONSIBILITY During the tenn of the Contract, Customer shall connnit to the following: In the event Customer should purchase additional software license( s) through an authorized reseller, or through any other manner, Customer agrees to notifY Intergraph of the acquisition of the software licenses( s). In response, Intergraph will provide the Customer with a Quote to this Contract reflecting the additional effective date of services and charges for the additional software license( s) under the Terms and Conditions of this Contract. Customer will provide Intergraph with the valid serial numbers of all software licenses listed on the Quote/Contract. Customer warrants that for all software licenses supported under this Contract, all like software licenses in the possession of the Customer and located at the Customer's site referenced on this Contract, are listed on the Quote/Contract. Customer also warrants that all prerequisite software licenses necessary to operate the software supported under this Contract are listed on the Quote/Contract. Services provided herein must be utilized only for the quantity of licenses listed on the Quote/Contract. 14.0 }[EAJ)IN(;S The various headings in this Contract are inserted for convenience only and shall not affect the meaning or interpretation of this Contract or any Paragraph or provision hereof References in this Agreement to any Paragraphs are to the applicable Paragraph of this Contract. 15.0 ASSI(;NMENT Neither party shall have the right to assign any of its rights or delegate any of its obligations under this Contract without the prior written consent of the other party, provided that such consent shall not be unreasonably withheld, except that Intergraph may assign its rights and obligations under this Contract without the approval of the other Party to an entity which acquires all or substantially all of the assets of Intergraph, or the Intergraph division furnishing software or services under this Contract, or to any subsidiary, affiliate or successor in a merger or acquisition ofIntergraph. 16.0 RESERVED 17.0 SEVERABILITY Whenever possible, each provision of this Contract and each related document shall be interpreted in such a manner as to be effective and valid under applicable law. However, if any provision of this Contract or any related document shall be prohibited by or invalid under applicable law, such provision shall be ineffective only to the extent of such prohibition or invalidity without invalidating the remainder of such provision or the remaining provisions of this Contract or such related document. 18.0 NOWAlVER Any failure by either Party to enforce performance of the terms or conditions of this Contract shall not constitute a waiver of, or affect said Party's right to avail itself of such remedies as it may have for any subsequent breach of the terms of the Contract. 19.0 ENTIRE A(;REEMENT This Contract constitutes the entire agreement between the Parties hereto with regard to the subject matter hereof This Contract supersedes any and all prior discussions and/or representations, whether written or oral, and no reference to prior dealings may be used to in any way modifY the expressed understandings of this Contract. This Contract may not be amended or modified unless done so in writing signed by authorized representatives of both Parties. IMGS304AO ] 1/01 4 IN WITNESS WHEREOF, the parties hereto have executed this Agreemeut the date aud year first above written. ATTEST: (--~---- . ,. .~-:- " ~ PATRICIA K HEALY Clerk of the Council APPROVED AS TO FORM: JOSEPH W. FLETCHER City Attorney By: ( Michael Vigliotta Deputy City Attorne CITY OF S~TA A7/ (y / -)/2 / '/::',l_--Z:.L._ --.,/ '(~l'-'- DAVIDN_REAM . City Manager Kenneth Kavanaugh Manager Employer ID# or Individual SS# 63-0573222 5