HomeMy Public PortalAboutAgreement_2013-07-29_ EdgeSoft_Software Maintenance 5 yrsATTACHMENT B
EDGESOFT
SOFTWARE MAINTENANCE AGREEMENT
PARTIES:
LICENSOR:
Edgesoft,Inc.
6133 Bristol Parkway Suite 220
Culver City
CA 90230
Email: info@edgesoftinc.com
LICENSEE:
City of Temple City
9701 Las Tunas Dr.
Temple City, CA 91780
(626)285-2171
Email: info@temolecitv.us
AGREEMENT:
Licensor
has licensed its proprietary software
products and
programs to Licensee, and
Licensee
wishes to have Licensor maintain
and support
the use of the Software.
Licensor
and Licensee therefore agree as follows:
1. Defined Terms. Certain terms used in this Agreement have defined meanings,
which are provided in Section 15, and in other sections herein. Definitions of
specifically defined terms (appearing in quotation marks and capitalized where
defined herein) shall apply whether or not the term is capitalized.
2. Term: Automatic Renewal. The "Initial Term" of this Agreement shall be a period
of five (5) years commencing July 1, 2013, (the "Effective Date"). This Agreement
shall automatically renew at the end of the Initial Term for a subsequent one (1)
year term and annually thereafter (each a "Renewal Term'). Either party may
cancel the automatic renewal of the Agreement by giving the other not less than
thirty (30) days written notice of termination prior to the termination of the Initial
Term or then -current Renewal Term.
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3. Default: Termination. Either party may terminate this Agreement with or without
cause. To terminate without cause, the terminating party shall provide the other
party at least ninety (90) days written notice of the termination. Termination for
cause shall only occur if a party is in default of this Agreement. A party shall be
considered in default under this Agreement if the party has not cured such failure
or breach within forty five (45) days of receiving written notice from the other party
identifying with reasonable specificity a material failure to comply with any term or
condition contained herein, including without limitation:
a. Licensee's failure to pay any fees or charges due under this Agreement or
any related License Agreement or service agreement.
b. Licensee's creation or modification of data in an Edgesoft database,
except through the licensed Edgesoft applications. (Exceptions shall only
be with the express, written consent of Licensor).
c, Licensor's breach of the limited warranty provided in Section 11.
In the event that Licensee is in default under this Agreement, Licensor in its sole
discretion may elect to terminate this Agreement or to place Licensee's
Maintenance Agreement on hold until such default is cured. In the event that
this Agreement is placed on hold pursuant to the preceding sentence, Licensee
may be charged a Reconnection Fee of ten percent (10%) of the then current
annual Maintenance Fee,
3. Scope of Maintenance. During the term of this Agreement, Licensor agrees to
provide "Basic Maintenance Servicesin support of the Software. Basic
Maintenance Services shall consist of:
a. Unlimited Support Services. Licensor will supply a help desk line to
answer questions and help resolve issues not related to error corrections
as defined below.
b. Error Correction. Licensor will use all reasonable diligence to correct
verifiable and reproducible Errors within a reasonable time period after
reported to Licensor. The Error Correction, when completed, may be
provided in the form of a "temporary fix," consisting of sufficient
programming and operating instructions to implement the Error
Correction.
c. Telephone/VPN Support.. Licensor shall maintain a telephone to nn
-
6:OOpm PST Monday through Thursdays antl 9:OOam - S:OOpm Fridays)
support line, excluding major national holidays. Licensor agrees to notify
Licensee in writing of any instance where it is apparent that excess
maintenance support is being caused by repeated operator error, or
where a single operator error results in extensive Licensor time to
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resolve, and shall provide Licensee with written direction on how to avoid
such operator errors in the future. In the event Licensee does not
implement the direction provided by Licensor on how to avoid such
operator errors, Licensor reserves the right to bill hourly for maintenance
to fix the sameoperator error if it could have been avoided by the
implementation of Licensor's direction.
d. Changes in State and Federal Regulations. Licensor will provide updates
needed to conform to the state of California and federal regulations,
including changes to tax tables and routine forms, as changes become
effective. Maintenance services under this Agreement do not include
updates to conform to any changes in local governmental regulations,
including without limitation changes in utility billing rates, reports or
methods.
e. Service Packs. Licensor may, from time to time, issue .routine minor
Releases of the Software, known as Service Packs, which contain Error
Corrections and minor Enhancements to licensees who have
maintenance agreements in effect. Installation of Service Packs is
provided at no charge to Licensee if completed over the Internet.
Installation of routine releases and updates by Licensor at Licensee's
chosen site will be billed to Licensee at the then current hourly rate
except in cases where Licensor is solely responsible for the inability to
provide modem support.
f. Discounts on Major Enhancement Releases. Licensor may, from time to
time, offer Major Enhancements to Licensee, generally for an additional
charge. To the extent Licensor offers such Major Enhancements, it shall
permit Licensee to obtain one copy of each Major Enhancement for each
copy of the Software or Application being maintained under this
Agreement at the discount then specified by Licensor.
4. Exceptions. The following matters are not covered by, and are outside the scope
of, Basic Maintenance Services:
a. Onsite support services provided by employees or agents of Licensor;
b. Training, file and data conversion costs, and consulting services (whether
onsite or offsite);
c. Maintenance or support
services resulting from any problem resulting
from Licensee's deliberate. misuse, alteration (including local reports
written by the Licensee), or damage of the Software;
d. Support
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of operating systems; support
of non -Licensor
software
(including
but not limited to spreadsheets,
word processors,
general
office software, and report builders (including the Progress Report
Builder));
e. Onsite installation and management services for Upgrades or Major
Enhancements;
f. Any training, consulting, implementation management services, and data
conversion services, required on an individual Licensee basis for
Upgrades or Major Enhancements (whether onsite or offsite);
g. Any set up, support for and maintenance of additional production
databases (whether onsite or offsite);
h. Travel (including travel time) and living expenses for installation and
training, or any other onsite support or services;
i. New (additional) Product license and service fees.
5. Cooperation of Licensee. Licensee agrees to notify Licensor promptly following
the discovery of any Error. Further, upon discovery of an Error, Licensee agrees, if
requested by Licensor, to submit to Licensor a listing of output and any other data
that Licensor may require in order to reproduce the Error and the operating
conditions under which the Error occurred or was discovered. Licensor shall treat
any such data as confidential.
6. Fees and Expenses. The Initial Term "Maintenance Fees," as set forth on
Attachment A. will be invoiced and payable as set forth on Attachment A, for Basic
Maintenance Services, Maintenance Fees for each Renewal Term will be invoiced
approximately ninety (90) days in advance of the commencement of each Renewal
Term, and shall be paid on or before the commencement of the Renewal Term,
provided that Licensee receives the invoice at least forty five (45) days before the
start of the Renewal Term. Maintenance Fees will apply to support of the Software
and to any modifications made thereto if those modifications require support
and/or additional programming services during Upgrades. Renewal Term
Maintenance Fees may be increased by the annual CPI for the Los Angeles
metropolitan area.
a. Refunds. All fees paid hereunder are nonrefundable and will be
forfeited in the event of termination except in situations where the
termination is for cause due to an uncured default by Licensor. In such a
case, Licensor shall refund to Licensee a pro -rated amount of the fees
for the remainder of the term from the date the Licensee gave Licensor
notice of its breach of this Agreement pursuant to Section 3.
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7. Additional Services. Licensor shall not be compensated for any services it provides
in addition to the Basic Maintenance Services unless such additional services are
authorized in advance and in writing by the Licensee. Licensor shall be
compensated for such agreed upon additional services in the amounts and in the
manner agreed to by the Licensee and Licensor. Additional services may include,
but are not limited to, those services identified in Section 4 of this Agreement.
8. Use and Restrictions. Error Corrections, Enhancements, Upgrades and New
Product Releases (and any other programming provided by Licensor, regardless of
its form or purpose) shall be considered part of the Software for purposes of
determining the parties' rights and obligations related thereto pursuant to the
License Agreement and this Agreement. Licensor shall have sole and exclusive
ownership of all right, title and interest in and to such works (including ownership
of all copyrights, trade secret rights and other intellectual property rights pertaining
thereto), subject to the terms and conditions of the License Agreement,
9. Limited Remedv and Liability: Exclusion of Consequential Damages. The
cumulative liability of Licensor to Licensee for all claims relating to any services
rendered hereunder, in contract, tort, or otherwise, shall not exceed the total
amount of the Maintenance Fees paid by Licensee to Licensor pursuant to this
Agreement. In no event shall Licensor be liable to Licensee for any consequential,
indirect, special, or incidental damages (including, without limitation, damages for
loss of business profits, business interruption, loss of business information, or other
pecuniary loss), even if Licensor has been advised of the possibility of such potential
loss or damage. The foregoing limitation of liability and exclusion of certain
damages shall apply regardless of the success or effectiveness of other remedies,
and shall apply to all claims under the warranty described in Section 11. Licensor's
liability for breach of warranty exists only during the warranty period set forth in
Section 11.
10. Limited Warranty and Exclusions. LICENSOR WARRANTS THAT IT WILL RENDER ITS
SERVICES HEREUNDER IN A GOOD AND WORKMANLIKE MANNER, AND THAT
DURING THE TERM OF THIS AGREEMENT AND FOR A PERIOD OF SIX (6) MONTHS
THEREAFTER LICENSOR, AT LICENSOR'S SOLE COST, SHALL CORRECT ANY FAILURE
TO RENDER ITS SERVICES HEREUNDER IN A GOOD AND WORKMANLIKE MANNER,
ANY CLAIM BASED ON THE FOREGOING WARRANTY MUST BE SUBMITTED IN
WRITING TO LICENSOR SPECIFYING THE FAILURE IN REASONABLE DETAIL, AND
SHALL BE SUBJECT TO THE NOTICE AND CURE PROVISIONS OF SECTION 3. LICENSEE
AGREES THAT THE FOREGOING LIMITED WARRANTY IS IN LIEU OF ALL OTHER
WARRANTIES OF LICENSOR AND LICENSOR DISCLAIMS ALL OTHER WARRANTIES,
EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, ANY IMPLIED WARRANTY
OF MERCHANTABILITY, FITNESS OR ADEQUACY FOR ANY PARTICULAR PURPOSE OR
USE, QUALITY OR PRODUCTIVENESS, COMPATIBILITY, DESIRED RESULTS, CAPACITY,
OR THAT SERVICES RENDERED HEREUNDER WILL BE ERROR -FREE,
11. Venue: Governing Law. Governing law and exclusive venue for any dispute
between the parties arising out of or relating to this Agreement shall be as
determined pursuant to the License Agreement,
12. Entire Agreement; construction: Licensor and Licensee Representations. This
Agreement is the complete and exclusive statement of the agreement between
Licensor and Licensee and supersedes all prior and contemporaneous
negotiations, discussions, proposals and understandings, oral, written or implied,
including those involving any agent of either party, relating to the subject matter
herein. No representations or statements made by either party or either party's
agents not expressly set forth or referenced in the Agreement shall be binding on
either party. Rights, obligations and warranties under this Agreement extend to
Licensee and Licensor only, and no other person shall be considered a third -party
beneficiary of this Agreement or be otherwise entitled to any rights or remedies
under this Agreement. No provision of this Agreement shall be construed in favor
of or against any party because one party or its professional advisors participated
in the preparation of this Agreement. Licensee represents and warrants that it
possesses sufficient mastery of the principles of accounting to use the Software for
its intended purpose, and Licensee acknowledges that it is solely the Licensee's
responsibility to: develop and institute the use of manual and other appropriate
controls to validate the accuracy of the data generated by the system and ensure
that Licensee's books balance; review proof lists and reports to validate the
accuracy of reports and statements; verify that all users of the Software are
properly and sufficiently trained and experienced; and verify that a functioning
archival system is in place, and that the data base is archived to a removable
medium on a daily basis. In the event of a conflict between the Attachments and
the main body of this Agreement, the main body of this Agreement shall control.
13. Modification: No Waiver. The terms of this Agreement may only be modified,
expanded or added to by a written agreement executed by the parties. No oral
communication between the parties or their agents before or after execution of
this Agreement shall be binding upon either party unless the parties expressly agree
in writing to the terms of such communication. No waiver by either party of any
breach of any term or condition hereof shall be effective or enforceable unless
made in writing signed by the party, and no waiver shall be interpreted as a
continuing waiver or a waiver of any future obligation.
14. Definitions.
a. Terms Defined in License Agreement. The following terms have that
meaning assigned to them pursuant to the Software License Agreement
executed by the parties in conjunction with this Agreement (the "License
Agreement"): "Application;" "Cure;" "Error;" "Material;" "Specifications;"
"Software;" and "User Materials."
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b, "Enhancement " means a modification or addition that, when made or
added to the Software, materially changes its utility, efficiency, functional
capability, or application, but that does not constitute solely an Error
Correction, and does not constitute a New Product Release. Licensor
may designate Enhancements as "Major Enhancements" or simply as
"Enhancements," depending on Licensor's assessment of their value and
of the function added to the Software or Application. "Major
Enhancement" may be a substantial rewrite of an Application, similar to a
New Product Release, or may be additional functionality benefiting only
certain licensees rather than all licensees as a whole, and requiring those
Enhancements to be packaged as a separate module.
c. `?emporary Fix" means an initial correction or "fix" to a problem in the
Software prior to the release of an Error Correction.
d. "Error Correction" means either a modification or addition that, when
made or added to the Software, brings the Software into Material
conformity with its published specifications, or a procedure or routine
that, when observed in the regular operation of the Software, avoids the
practical adverse effect of such nonconformity.
e. "New Product Release'° means either the total rewrite of an Application
or new version(s) of the Software (including, without limitation, offering
of an Application in a new language), the offering of new suites of
Applications or databases, generally packaged as a separate module, and
which may incorporate Error Corrections and/or Enhancements. A New
Product Release shall be distinguished from an Enhancement by
Licensor's determination, based on Licensor's assessment of the New
Product's value and of the function added to the Software or an
Application.
f. "Upgrade" has substantially the same meaning as "Enhancement."
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N WITNESS WHEREOF, each of the parties hereto has caused this Agreement to be executed
in duplicate by its duly authorized officer or representative.
LICENSOR
Name: Shan Sunday
LICENSEE
Name: Josl
Signature: tV V ror CA" Q °''�—� Signature:
Title: PresidentJCEO
Title: City I
ATTEST:
Name: Peggy I{ct�o
Signature: 0� `Ave
Title: City Clerk
APPROVED AS TO FORM/:
Name: L S //ac,
Signature:
Title: CityAttomey
Dater I, 201ate: 20_
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ATTACHMENT A: SCHEDULE OF FEES
Attachment A contains the price quote issued to Licensee showing the applications and
corresponding first year maintenance/support service fees, as well as a schedule of
payment terms for these maintenance/support services. Please note that these fees are
for one full year. By signing the Attachment A, Licensee is agreeing to this Schedule of
Fees.
EdgeSoft, /nc.
Annual Maintenance Costs for Temple city, CA
Maintenance will be due and payable on or before July1 of every year, starting July 1,
2013. Additional maintenance will be charged on all custom modifications performed
and supported by Licensor.
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