HomeMy WebLinkAboutNFOCUS - 2007INSURANCE NOT REQUIRED
WORK MAY PROCEED
CLERK Of COUNCIL
DATE: 11-a(, -0"1
O: Polcce (a)
KCJi r~ T~2Tj~uX
CONSULTANT AGREEMENT
N-2007-133
THIS AGREEMENT, made and entered into this 15`" day of October, 2007 by and
between nFocus Softwaze, Inc., a dba for SWMG Productions, Inc., a Texas corporation
(hereinafter "nFocus"), 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 (hereinafter
<'City„~.
RECITALS
A. nFocus has developed proprietary software for which the City desires to purchase end
user licenses to be utilized by the Santa Ana PAL.
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:
I. SCOPE OF SERVICES
City shall purchase end user licenses, maintenance and training as set forth in "nFocus
Software End User License Agreement, attached hereto as Exhibit A and incorporated in full by
this reference.
2. COMPENSATION
a. City agrees to pay, and nFocus 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 $1,00.00, annually, 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 standazds of performance set forth in the Recitals
which may reasonably be expected by City.
3. TERIVI
This Agreement shall commence on the date first written above and continue until
terminated by either party as set forth in Exhibit A.
4. 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.
5. 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:
Santa Ana Police Department
Attention: Tom Serafin -PAL
60 Civic Center Plaza (n'I-96)
Santa Ana, California 92702
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: nFocus Software
Attn: Licensing
6245 N. 24`h Parkway, Ste 100
Phonix, Arizona 85016
A party may change its address by giving notice in writing to the other party. Thereafter,
any communication shall be addressed and transmitted to the new address. If sent by mail,
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, 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.
6. 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.
7. MISCELLANEOUS PROVISIONS
a. Each undersigned represents and wan•ants 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 incozporated 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.
ATTEST:
ATRICIA E. HEAL
Clerk of the Council
CITY OF SANTA ANA
DAVID N. REA
City Manager
APPROVED AS TO FORM:
JOSEPH W.FLETCHER
City Attorney
J
B y: i .vZ~J~c
Lain Needy
Assistant City Attorney
RECOMMENDED FOR APPROVAL: nFOCUS
CJ-i ~CN `-~"~
PAUL M. WALTERS
Chief of Police
President
ROBERTS
Tax ID# 7~- ZlQO 8a3
nfocus~ CERT~IFIED•
S O F T W A R E venner
DATA DflIVEN flE5U LT 5^
nFocus SoftwareT""
End User License Agreement
6245 N. 24`h Parkway
Suite 100
Phoenix, AZ 85076
602.954.9557 (voice)
602.954.9559 (fax)
www.nfocus.com
EXHI~iT ~
End User License Agreement (EULA) .....................................................................................1
1.0 Scope ............................................................................................... ................................1
2.0 Grant of License ................................................................................. ................................1
3.0 Limitations on Use .............................................................................. ................................1
4.0 Ownership and Title ........................................................................... ................................1
5.0 Licensee Confidentiality Responsibility ............................................... ................................2
6.0 Limited Warranty ................................................................................ ................................2
7.0 Limitation of Liability ........................................................................... ................................2
8.0 Transfers ............................................................................................ ................................2
9.0 Term and Termination ........................................................................ ................................3
10.0 Notices ............................................................................................... ................................3
11.0 United States Government Licensing Provisions ................................ ................................3
12.0 Licensor Security and Confidentiality Standards ................................. ................................3
13.0 General .............................................................................................. ................................3
13.1 Copyright Notices ................................................................. ................................3
13.2 Compliance with Laws ............................................................... ................................4
13.3 Waivers ..................................................................................... ................................4
13.4 Assignments .............................................................................. ................................4
13.5 Entire Agreement and Amendment ............................................ ................................4
13.6 Governing Law .......................................................................... ................................4
13.7 Severability ................................................................................ ................................4
Maintenance and Support Agreement (MSA) ..........................................................................5
1.0 Definitions ............................................................................................. .............................5
1.1 Support Call (Level 1) ................................................................... .............................5
1.2 Support Call (Level 2) ................................................................... .............................5
1.3 Support Call (Level 3) ................................................................... .............................5
1.4 Response Time ............................................................................ .............................5
1.5 Response Center and Contact Procedure .................................... .............................5
2.0 Term and Termination ........................................................................... .............................5
3.0 Maintenance and Support Services ....................................................... .............................5
3.1 Basic Maintenance ....................................................................... .............................5
3.2 Levels of Maintenance and Support ............................................. .............................5
3.3 On-Site Assistance ....................................................................... .............................6
3.4 Installation and Conversion .......................................................... .............................6
3.5 Causes Which Are Not Attributable to Licensor ............................ .............................6
4.0 Responsibilities of nFocus ..................................................................... .............................6
5.0 Maintenance and Support Fee .............................................................. .............................7
6.0 Assignment of duties ............................................................................. .............................7
Addendum A-Understanding of Purchase and Implementation Process .............................. Al
Software License Agreement for Trax Software Products
nFocus Software, Inc., a dba far SWMG Productions, Inc. ("n Focus" or "Licensor'), a Texas corporation, having a
Principal Place Of Business at 6245 N. 24`" Parkway, Suite 100, Phoenix, AZ 85016 and Santa Ana PAL
("Licensee"), having a Principal Place Of Business at 2627 W. McFadden Ave. Santa Ana. CA. 92702, hereby enter
into this End User License Agreement ("Agreement). For good and valuable consideration, the parties agree as
follows:
Section 1.0 SCOPE
Licensor will provide proprietary software or other electronic products ("Products") containing embedded or pre-
loaded proprietary software to Licensee. All such software that is owned by Licensor is referred to as "Software'
Product and Software documentation that specifies technical and performance features and capabilities, and the
userloperatioNtraining manuals for the Software (including all physical or electronic media upon which this
information is provided) are collectively referred to as "Documentation:' This Agreement contains the terms and
conditions pursuant to which Licensor will license, and Licensee may use, the Software and Documentation.
Section 2.0 GRANT OF LICENSE
Licensor hereby grants to Licensee a personal, non-transferable (except as permitted in Section 8 below), limited,
and non-exclusive license under Licensor's applicable proprietary rights to use the Software (see Annex A -
Maintenance and Support Agreement) and related Documentation for the purposes for which they were designed and
in accordance with the terms and conditions of this Agreement. The license granted authorizes Licensee to use the
Software only in object code format and does not grant any rights to source code.
Section 3.0 LIMITATIONS ON USE
3.1 Licensee may use the Software only for Licensee's internal business purposes and only in accordance with the
Documentation. Any other use of the Software is strictly prohibited. Licensee may not, for any reason, modify,
disassemble, peel components, decompile, otherwise reverse engineer or attempt to reverse engineer, derive
source code, create derivative works from, adapt, translate, merge with other software, copy, reproduce,
distribute or export any Software or permit or encourage any third party to do so, except that Licensee may make
one (1) copy of Software provided by Licensor to be used solely for archival, back-up or disaster recovery
purposes. Licensee must reproduce all copyright and trademark notices on all copies of the Software and
Documentation.
3.2 Licensee may not copy onto or transfer Software installed in one Product device onto another device.
Notwithstanding the preceding sentence, Licensee may temporarily transfer Software installed on one device
onto another if the original device is inoperable or malfunctioning, provided that Licensee provides written notice
to Licensor of such temporary transfer and such temporary transfer is discontinued when the original device is
returned to operation. Upon Licensor's written request, Licensee must provide to Licensor a written list (including,
but not limited to serial numbers, as applicable) of all Product devices in which the Software is installed and
being used by Licensee.
3.3 Concerning Licensor's installation of Products or Software on client owned and operated equipment, Licensee
must purchase a copy for each server on which Licensee installs Products or Software. Licensee's use of
Products or Software on an authorized server does not entitle Licensee to use or access the Products or
Software on additional, non-licensed servers. Upon Licensor's written request, Licensee must provide to Licensor
a written list of all servers where Licensee installs or intends to install Products or Software.
Section 4.0 OWNERSHIP AND TITLE
Title to all copies of Software will not pass to Licensee at any time, but remains vested exclusively in Licensor.
Licensor owns and retains all of its proprietary rights in any form concerning the Software and Documentation,
including all rights in patents, patent applications, inventions, copyrights, trade secrets, trademarks, trade names, and
other intellectual properties (including any corrections, bug fixes, enhancements, updates or modifications to or
derivative works from the Software whether made by Licensor or another party). Nothing in this Agreement is
intended to restrict the proprietary rights of Licensor or to grant by implication or estoppel any proprietary rights. All
intellectual property developed, originated or prepared by Licensor in connection with providing to Licensee Software,
Products, Documentation or related services remain vested exclusively in Licensor, and this Agreement does not
grant to Licensee any shared development rights of intellectual property. This Agreement does not involve any
software that is a'tiwork made for hire."
1 of 7 Initials of Licensee's
Authorized Representative
Section 5.0 LICENSEE CONFIDENTIALITY RESPONSIBILITY
Licensee acknowledges that the Software and Documentation contain Licensor's valuable proprietary and
confidential information and trade secrets. Licensee will take necessary and appropriate precautions to maintain and
guard the confidentiality of the Software and Documentation, using at least the same degree of care that Licensee
applies to its own confdential information, but not less than reasonable care. Precautions will include informing
Licensee's employees and agents who are authorized to use the Software and Documentation that such information
is confidential and may not to be disclosed tc others. Licensee will not disclose the Software and Documentation to
any third party, except as permitted by this Agreement or expressly in writing by Licensor. Licensee will limit access
to the Software and Documentation to Licensee's employees and agents who need to know and are authorized to
use the Software and Documentation as permitted by this Agreement.
Section 6.0 LIMITED WARRANTY
6.1 The warranty period for the Software will commence upon shipment and will continue for 90 days unless
Licensor has agreed to a different warranty period in a separate agreement that has been mutually executed by
Licensor and Licensee, in which case, the warranty period will be as stated in such agreement.
6.2 During the applicable warranty period, Licensor warrants that the unmodified Software, when used propedy and
in accordance with this Agreement, will be free from a reproducible defect that eliminates the functionality or
successful operation of a feature critical to the primary functionality or successful operation of the system.
Whether such defect occurs will be determined solely with reference to the Documentation. Licensor does not
warrant that Licensee's use of the Software or Products will be uninterrupted or error-free or that the Software or
the Products will meet Licensee's particular requirements.
6.3 Before the expiration of the applicable warranty period, Licensee must notify Licensor in writing if the Software
does not conform to this warranty. Upon receipt of such notice, Licensor will investigate the warranty claim. If this
investigation confirms a valid warranty claim, Licensor will (at its option and at no additional charge to Licensee)
repair the defect, replace the defective Software with the same or equivalent software or refund the price of the
defective Software or individual Product in which the Software is embedded or for which it was provided. Such
action will be the full extent of Licensor's liability and Licensee's sale remedy for a breach of this warranty. If the
investigation indicates the warranty claim is not valid, then Licensor may invoice Licensee for responding to the
claim on a time and materials basis using Licensors current labor rates.
6.4 LICENSOR DISCLAIMS ALL OTHER WARRANTIES, EXPRESSED OR IMPLIED, INCLUDING THE IMPLIED
WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. THE
TRANSACTION COVERED BY THIS AGREEMENT IS A LICENSE AND NOT A SALE OF GOODS;
THEREFORE, IT IS NOT COVERED BY THE UNIFORM COMMERCIAL CODE.
Section 7.0 LIMITATION OF LIABILITY
EXCEPT FOR PERSONAL INJURY OR DEATH, LICENSOR'S TOTAL LIABILITY, WHETHER FOR BREACH OF
CONTRACT, WARRANTY, NEGLIGENCE, STRICT LIABILITY IN TORT or OTHERWISE, WILL BE LIMITED TO
LICENSEE'S DIRECT DAMAGES RECOVERABLE UNDER LAW, BUT NOT TO EXCEED THE PRICE FOR THE
SOFTWARE, THE PRODUCTS PROVIDED BY LICENSOR IN WHICH THE SOFTWARE IS EMBEDDED OR
INSTALLED or THE SERVICES SPECIFICALLY RELATED TO THE SOFTWARE WITH RESPECT TO WHICH
LOSSES OR DAMAGES ARE CLAIMED. ALTHOUGH THE PARTIES ACKNOWLEDGE THE POSSIBILITY OF
SUCH LOSSES OR DAMAGES, THEY AGREE THAT LICENSOR WILL NOT BE LIABLE FOR ANY COMMERCIAL
LOSS OR INCONVENIENCE; LOSS OF USE, TIME, DATA, GOOD WILL, REVENUES, PROFITS OR SAVINGS;
OR OTHER SPECIAL, INCIDENTAL, INDIRECT or CONSEQUENTIAL DAMAGES ARISING FROM THIS
AGREEMENT OR THE SALE OR USE OF ANY SOFTWARE OR PRODUCTS. This Limitation of Liability provision
will survive the termination of this Agreement. Licensee must bring any action under this Agreement within one (1)
year after the cause of action arises.
Section 8.0 TRANSFERS
Licensee may not transfer Software to any third party without Licensors prior written consent, which consent may be
withheld in Licensors reasonable discretion and may 6e conditioned upon the transferee paying all applicable license
fees and agreeing to be bound by this Agreement.
2 of 7 Initials of Ucensee's
Authorized Represenfa_
Section 9.0 TERM AND TERMINATION
Licensee's right to use the Software will begin when this Agreement is mutually executed by both parties and will
continue in perpetuity unless Licensee breaches this Agreement, in which case it shall be terminated immediately
without notice by Licensor. In addition to termination, Licensor shall be entitled to all available remedies at law or in
equity (including immediate injunctive relief without proving damages and repossession of all non-embedded
Software and associated Documentation unless Licensee is a federal agency of the United States Government).
Licensee acknowledges that its breach of this Agreement will result in irreparable harm to Licensor for which
monetary damages would be inadequate. Within thirty (30) days after termination of this Agreement, Licensee must
certify in writing to Licensor that all copies of the Software and Documentation have been returned to Licensor or
destroyed and are no longer in use by Licensee.
Section 10.0 NOTICES
Notices required under this Agreement to be given by one party to the other must be in writing and either delivered in
person or sent to the address shown below by certified mail, return receipt requested and postage prepaid (or by a
recognized courier service with an asset tracking system, such as Federal Express, UPS or DHL), and shall be
effective upon receipt. Any change of address must be in writing to the other party.
Licensor Licensee
Attn: Licensing Administrator name: Tom Serafin
nFocus Software Organization name: Santa Ana PAL
6245 N. 24r" Parkway Address: 2627 W. McFadden Ave
Suite 100 Address 2:
Phoenix, AZ 85016 City, State Zip: Santa Ana. CA 92702
Section 11.0 UNITED STATES GOVERNMENT LICENSING PROVISIONS
This product is comprised of commercial technical data and/or computer data bases and/or commercial computer
software and/or commercial computer software documentation, as applicable, and was developed exclusively at
private expense by nFocus Software, 6245 North 24r" Parkway, Suite 100, Phoenix, Arizona, 85016. U.S.
Government rights to use, modify, reproduce, release, perform, display or disclose these technical data and/or
computer data bases and/or computer software and/or computer software documentation are subject to the limited
rights restrictions of DFARS 252.227-7015(b)(2)(June 1995) and/or subject to the restrictions of DFARS 227.7202-
1(a)(June 1995) and DFARS 227.7202-3(a)June 1995), as applicable for U.S. Department of Defense procurements
and the limited rights restrictions of FAR 52.227-14 (June 1987) and/or subject to the restricted rights provisions of
FAR 52.227-14 (June 1987) and FAR 52.227-19 (June 1987), as applicable, and any applicable agency FAR
Supplements, for non-Department Federal procurements.
Section 12.0 LICENSOR SECURITY AND CONFIDENTIALITY STANDARDS
12.1 Licensor maintains the highest level of confidentiality and security for all processes and systems. Licensor's
employees undergo a national criminal background check. Written policies are published and enforced requiring that
every effort must be made to ensure the cenfidenfiality and security of Gient data. For example, all data transferred
between the server and client browsers is encrypted. Licensor ensures that any printed material, the useful life of
which has expired, is secured and destroyed at an off-site facility.
12.2 All data is transferred using 128-bit encryption Secure Sockets Layer (SSL).
12.3 Licensor does not sell, rent, exchange or license data that identifies the licensee and/or any individual associated with
the licensee to any third party, except under extreme and unusual circumstances when Licensor may be required to
disclose collected information in order to cooperate with law enforcement, protector defend our rights or property or
protect the interests of cur clients..
Section 13.0 GENERAL
13.1 COPYRIGHT NOTICES. The existence of a copyright notice on the Software will not be construed as an
admission or presumption that public disclosure of the Software or any trade secrets associated with the
Software has occurred.
3 of 7 Initials of Dcensee's
Authorized Representaliv
13.2 COMPLIANCE WITH LAWS. Licensee will comply with all applicable laws and regulations, including export
laws and regulations of the United States. Licensee will not, without the prior authorization of Licensor and the
appropriate governmental authority of the United States, in any form export or re-export, sell or resell, ship or reship
or divert, through direct or indirect means, any item or technical data or direct or indirect products sold or otherwise
furnished to any person within any territory for which the Unites States Government or any agency thereof, at the time
of such action, requires an export license or other governmental approval. Violation of this provision shall be a
material breach of this Agreement, permitting immediate termination by Licensor.
13.3 WAIVERS. Failure or delay by either party to exercise any right or power under this Agreement will not
operate as a waiver of such right or power. For a waiver of a right or power to be effective, it must be in writing
signed by the waiving party. An effective waiver of a right or power shall not be construed as either a future or
continuing waiver of that same right or power or the waiver of any other right or power.
13.4 ASSIGNMENTS. Licensor may assign any of its rights or subcontract any of its obligations under this
Agreement or encumber or sell any of its rights in any Software, without prior notice to or consent of Licensee.
13.5 ENTIRE AGREEMENT AND AMENDMENT. This Agreement constitutes the entire agreement of the parties
regarding Licensee's use of the Software and may be altered, amended or modified only by a written
instrument signed by an authorized representative of each party, except that Licensor may modify this
Agreement as necessary to comply with applicable laws and regulations. This Agreement will be fairly
interpreted in accordance with its terms and conditions and not for or against either party.
13.6 GOVERNING LAW. This Agreement will be governed by the laws of the United States to the extent that they
apply and otherwise by the laws of the State to which the Software or Products are shipped if Licensee is a
sovereign government entity or the laws of the State of Arizona if Licensee is not a sovereign govemment
entity.
13.7 SEVERABILITY. If any provision of this Agreement is determined by a court of competent jurisdiction to be
invalid or otherwise unenforceable, that provision will be severed and the remainder of this Agreement will
remain in full Tome and effect.
In witness whereof, the parties have caused duly authorized representatives to execute this
End User License Agreement effective through the 20 day of September, 2008.
Licensee: Santa Ana PAL
2627 W. McFadden Ave
Santa Ana. CA 92702
Signed By: ~~~
Name:Tom Serafin
Title: Director
Date:
Ueerwor. nFaousSoflvrare
8245 N. 24'" Parkway
Suife 1e0
Pho~iz, RZ 85018
S' ed 8
nand2 Rs~artb
Priskknt
Date: September 14. 2007
4 of7
Software License Agreement for Trax®Software Products
Annex A: Maintenance and Support Agreement
1.0 DEFINITIONS
1.1 "SUPPORT CALL (LEVEL 1)" means a reported problem in the Software which causes the system to be down
with no obvious work-around.
1.2 `SUPPORT CALL (LEVEL 2)" means a reported problem in the Software, not considered as a Level 1 support
problem, as defined in 1.1 above, which causes serious disruption of a function, however the system is still
operational.
1.3 "SUPPORT CALL (LEVEL 3)" means a reported problem in the Software which is not affecting the Software's
ability to perform substantially in accordance with the user documentation.
1.4 "RESPONSE TIME" means the elapsed time between the receipt of a service call and the time when Licensor
begins the Maintenance and Support, including a verbal or written confirmation to the Licensee thereof.
1.5 "RESPONSE CENTER AND CONTACT PROCEDURE" shall mean:
Address
6245 N. 24`" Parkway
Suite 100
Phoenix, AZ 85016
www.nfocus.com
Standard Hours of Operation
Monday -Friday
(excluding public holidays)
7:00 am - 6:00 pm (Phoenix, AZ time)
Contact Information
Tel: (602) 954-9557
E-mail: support@nfocus.com
Fax: (602) 954-9557 attn: Technical Support
2.0 TERM AND TERMINATION
Licensor's provision of Maintenance and Support to Licensee will commence on date payment is received by
Licensor and will continue for a term of one (1) year. Maintenance and Support will renew when payment is received
by Licensor on or before the annual renewal date. Licensee's failure to pay the then-current renewal rate on or before
the renewal date will result in the following:
1) Termination of Licensee's Maintenance and Support Agreement with Licensor; and
2) Termination of hosting for Licensee's data. Licensee will be provided athen-current copy of Licensee's
data in Microsoft Access format within five (5) business days of termination.
3.0 MAINTENANCE AND SUPPORT SERVICES
Maintenance and Support will be provided only with respect to versions of the Software that are being supported by
Licensor, according to the following schedule: (a) a Major Update will be supported for two (2) years after the
commercial release of the next Major Update, provided always that Licensee makes use of the last Minor Update and
Update of the first mentioned Major Update and (b) a Minor Update will be supported for one (1) year after the
commercial release of the next Minor Update, provided always that Licensee makes use of the last Update of the
related Major Update.
3.1 BASIC MAINTENANCE. Basic Maintenance means that Licensor will provide support during Licensors
standard hours of operation: (i) Major Updates and Minor Updates, when and if available, and related on-line
Documentation, and (ii) telephone assistance with respect to the Software, including (a) clarification of
functions and features of the Software; (b) clarification of the Documentation; (c) guidance in the operation of
the Software; and (d) error verifcation, analysis and correction to the extent possible by telephone and/or
elecVonic communication methods.
3.2 LEVELS OF MAINTENANCE AND SUPPORT. Maintenance and Support is available at the following
Response Times: (i) Support Call (Level 1): response time two (2) hours, patch or work-around next day, fixed
or documented in neM major product release; (ii) Support Call (Level 2): response time six (6) hours, patch or
work-around within five (5) days, fixed or documented in next major product release; (iii) Support Call (Level
3): one (1) business day, problem documented and input for consideration in next major product release.
5 of 7 Initials of Licensee's
Authorized Represenfati
Licensor agrees to use its best efforts, at a level consistent with services providing a similar level of service in the
information technology industry, in the performance of the services called for hereunder.
3.3 ON-SITE ASSISTANCE. At Licensor's discretion, Licensor may deem it necessary to provide Maintenance
and Support at the Licensee's site. In such event, Licensee will reimburse Licensor for all related travel
expenses and costs for board and lodging.
3.4 INSTALLATION AND CONVERSION. Upon Licensee's request, Licensor can perform the installation and/or
conversion of the Software. Unless otherwise agreed, the costs hereof shall be invoiced to Licensee on the
basis of Licensor then-current rates.
3.5 CAUSES WHICH ARE NOT ATTRIBUTABLE TO LICENSOR. Maintenance and Support will not include
services requested as a result of or with respect to, causes which are not attributable to Licensor. These
services will be billed to Licensee at Licensor's then-current rates. Causes which are not attributable to
Licensor include, but are not limited to:
3.5.1 accident: unusual physical, electrical or electromagnetic stress; neglect; misuse; failure orfluctuation of
electric power, air conditioning or humidity control; failure of rotation media not furnished by Licensor;
excessive heating; fire and/or smoke damage; operation of the Software with other media and
hardware, software or telecommunication interfaces not meeting or not maintained in accordance with
the manufacturer's specifications; or causes other than ordinary use;
3.5.2 improper installation by Licensee or use of the Software that deviates from any operating procedures
established by Licensor in the applicable Documentation;
3.5.3 modification, alteration or addition or attempted modification, alteration or addition of the Software
undertaken by persons other than Licensor or Licensor's authorized representatives;
3.5.4 software programs made by Licensee or other parties which affect the normal operation of the Software.
4.0 RESPONSIBILITIES OF LICENSEE
Licensor's provision of Maintenance and Support to Licensee is subject to the following:
4.1 Licensee shall provide Licensor with access to Licensee's personnel and equipment during normal business
hours as required to maintain and support the software and approved equipment.
4.2 Licensee shall provide supervision, control and management of the use of the Software. In addition, Licensee
shall implement procedures for the protection of information and backup in the event of errors or malfunction of
the Software or Equipment.
4.3 Licensee shall document and promptly report all errors or malfunctions of the Software to Licensor. Licensee
shall take all steps necessary to carry out procedures for the rectifcation of errors or malfunctions within a
reasonable time after such procedures have been received from Licensor.
4.4 For Licensed Sofware that is installed on Licensee's premises or equipment, Licensee shall maintain a current
backup copy of all programs and data for Software and/or Products.
4.5 Licensee shall properly train its personnel in the use and application of the Software and the Equipment on
which it is used.
4.6 Licensee is required to provide written notice of its intent not to renew the Maintenance and Support
Agreement. Licensee must provide such notice at least ninety (90) days prior to the expiration of the then-
currentterm.
6 of 7 Initials of Licensee's
Authorized Repmsen~
5.0 MAINTENANCE AND SUPPORT FEE
The Maintenance and Support Fee for each calendar year of Maintenance and Support will be 20% of the then-
current License Fee. The Maintenance and Support Fee is due and payable in full and in advance of delivery of the
Software and subsequent renewal dates (refer to Section 2.0 of this Agreement). Each caiendar year, the
Maintenance and Support Fee may be modified by Licensor due to general price increases and/or general infiation
increases which are reflected in the Consumer Price Index, but shall, for a period of four (4) years from the Effective
Date, in no event exceed 3% plus the increase in the Consumer Price index for the applicable time period, by written
notice to Licensee at least thirty (30) days prior to the end of the then-current term. In the event of a modification of
the Maintenance and Support Fee, Licensee may discontinue Maintenance and Support. If Licensee once elects not
to renew Maintenance and Support, Licensee may renew only upon payment of the annual Maintenance and Support
Fee for the coming year, applicable administrative fees and 100 percent of all Maintenance and Support Fees that
would have been paid had Licensee not terminated Maintenance and Support, which entitles Licensee to ali Major
Updates and Minor Updates of the Software which have been released during the same period.
6.0 ASSIGNMENTS.
Licensor may assign any of its rights or subcontract any of its obligations under this Agreement or encumber or sell
any of its rights in any Software, without prior notice to or consent of Licensee.
In witness whereof, the parties have caused duly authorized representatives to execute this
Maintenance and Support Agreement effective through the 20 day of September, 2008.
Licensee: Santa Ana PAL
2627 W. McFadden Ave
Santa Ana. CA 92702
JJ....
Signed By: ~~ '----.:)
Name: Tom rafin
Title: Director
Date:
Ucel1$Or: nFocus Softwafe
6245 N, 24" Parllway
Suite 100
PhooniJr..1>Z 85016
s~~/Af
Ananda Roberts
President
Date: September 14. 2007
70t7
Addendum A - Understanding of Purchase and Implementation Process
(Required for new clients only)
To ensure that you have been made aware of all products and services nFocus Software TM provides, please
check each item. If you have a question regarding any items on or missing from your invoice, please notify your
account representative immediately. This file will be stored with your agreement for future reference.
Your initials on this page indicate that the authorized purchasing /deployment staff members have reviewed the
content of this page.
We understand/believe/agree/confirm that:
o All appropriate staff/board members have attended a product presentation.
o Our organization was made aware that StaffTrax™, VOlunteerTrax@, Case Management, MoneyTrax@,
Online Registration, and TeamTrax@ are sold separately and may require additionai paperwork.
o Data import services (standard/custom) are available at additional cost.
o Custom data import prices vary depending on the scope of work.
o A renewabie subscription service fee is due annually for each licensed site.
o The subscription renewal(s) will be due 1 year from date of purchase.
o We are responsible for implementing the use of the services provided by nFocus Software. Our
organization is responsible for the annual subscription services renewal fee from the date of purchase
regardless of the services/benefits used. We understand any process or service requested by our
organization that is not included on the originai invoice must be billed and purchased separately.
nFocus Software is not responsible for the content of online data stored within web-based account(s).
Account Setup / Data Import:
o An End-User License Agreement (EULA) must be on-file to receive service.
o An Online Registration Agreement (ORA) must be on-file for MoneyTrax to receive service.
o We will complete and return all applicable account setup fonms for each licensed site.
o We must mark 'Yes" on the account setup fonm if the site plans to use the Advanced Education feature.
o School and Grade information will NOT be imported if we choose the Advanced Education feature.
o We must populate a template provided by nFocus Software for the standard data import, OR
o We must provide a copy of our data in the approved format according to our invoice for custom data import.
o Additional fees may be charged to change/update data import issues.
o
We understand training is required prior to account access.
We will not enter data in old systems after data has been sent for import.
We will use the web-based account after the account is setup.
Scannin!:! Technolo!:!v ReQuirements
Vista Operating System with 512 MB RAM
and 1 GHz Processor
XP Operating System with 256 MB RAM and
1 GHz Processor
2000 Operating System with 128 MB RAM
and 1 GHz Processor
Training and Data Entry:
o
o
Web BrowsinQ ReQuirements
Microsoft Internet Explore (I.E.) 5.5 or higher
Addendum 1 of 1
Initials of Ucensee's ....---~ ~
Authorized Representa~""""'-
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--- .......
Santa Ana Police
Department
Memo
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;001f1? . ."" r~
To: Zack Venard
From: John Gabelman
Date: October 24, 2007
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~ /()-3tJ-tJ7
He: Agreement between nFOOJs and City of Santa Ana
Zack,
I have indueled three copies of the Consultant Agreement that need to be signed on page 3
and retumed to me. Under Scope of SelVices exhibit A refers to the Software Endtl:4liit ......
a
License Agreement, which you previously sent r-~:::-! ...J
. :::' ; 'j
After all....capies are signed and retumed to me, I will obtain the other signatures;attactr~
the signed End User License Agreement, and send you one copy for your records. If you :::;
have any questions, please feel free to contact me at .
:9
~
ioabelman@cLsanta-anaca.us or call me at 714-245-8050.
":':""
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Sincerely,
q~.-,
Santa Ana Police Department
60 Civic Center Plaza
PO Box 1981
Santa Ana, CA. 92702
. Page 1