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HomeMy WebLinkAboutContracts & Agreements_232-2017 SOFTWARE MAINTENANCE AGREEMENT BETWEEN Superion, LLC a Delaware Limited Liability Company with headquarters at 1000 Business Center Drive Lake Mary, F_ 32746 ("Superior-") AN-) City of R�)dlands 35 Capon St.. Sr ite 30 Redlands, CA x.2373 (for purposes of this Agreement, "Customer") By the signatures of their duly authorized representatives below, Superion and Customer, intending to be legally bound, agree to all of the provisions of this Agreement and all Exhibits, Supplements, Schedules, Appendices, and/or Addenda to this Agr�;emer,.` City of Redlands CA Superion, LLC BY PRINT NAME Paul W. Foster PRINT NAME �i�s p A)Ft)1AAIV//� PRINT TITLE Mavor r� PRINT TITLE COGv7r,aLGFn DATE SIGNED J IZ�/� ! DATE SIGNED `/1/�Sll`T� ATTEST: J(!�a ►e Donaldson, City Clerk Page 1 of 9 THIS AGREEMENT is entered into between Superion and Customer on the Execution Date, and Superior's obligations hereunder will commence on Execution Date Superion and Customer have entered into a Software License and Services Agreement dated June 1, 2000 (the "License Agreement") for the Software Customer desires that Superion provide Maintenance and Enhancements for and new releases of the Baseline Software identified in Exhibit 1 on the terms and conditions contained in this Agreement, and for the Custom Modifications identified in Exhibit 1 on the terms and conditions of this Agreement Accordingly, the parties agree as follows 1 Definitions to third parties without restriction on disclosure, or (iii) the Recipient obtains from a third party "Exhibit 1" means, collectively (i) The without restriction on disclosure and without schedule sttached to this Agreement which is breach of a non-disclosure obligation marker as "Exhibit 1," including all attached Software Supplements, and (ii) any schedule "Discloser" means the party providing its also marked as "Exhibit 1" (also including any Confidential Information to the Recirien. attached Software Supplements) that is ' attached to ani+ amendment to this "Documentation" means the on•line anc' Agreement Other appendices to this hard copy functional and technical specifications, Agreement are numbered sequentially and are that Superion provides for a Baseline also"Appendices " Component System, and that describe the functional and technical capabilities of the Baseline' means the general release Baseline Component System in question version of a Component System as updated to the particular time in question through both Execution Date' means the latest date Superior's warranty services and Superion's shown on the signature page of this Agreement Maintenance Program but without any other modification whatsoever "Equipment" means a hardware and systems software configuration meeting the "Component Svstem" means any one of "Equipment" criteria set fortis in Exhibit 1 the computer software programs which is identified in Exhibit 1 as a Component "Intellectual Property Rights" means all System, including all copies of Source Code, patents, patent rights, patent applications, Object Code and all related specifications, copyrights, copyright registrations, trade secrets, Documentation, technical information, and all trademarks and service marks and Confidential corrections, modifications, additions, Information improvements and enhancements to and all Intellectual Property Rights for such "Software" means the Component Component System Systems listed in Exhibit 1 Confidential Information means trade "Obiect Code" means computer programs secret information of the disclosing party assembled, compiled, or converted to magnetic which is designated as trade secret prior to or or electronic binary form on software media, at the time of disclosure to the Recipient which are readable and usable by computer Confidential Information of Superion includes equipment the Software, all software provided with the Software, and algorithms, methods, "Reci tent" means the party receiving techniques and processes revealed by the Confidential Information of the Discloser Source Code of the Software and any software provided with the Software "Software Supplement" means, with Confidential Information does not include respect to a Component System, the addendum information that (i) is or becomes known to provided as part of Exhibit 1 that contains the public without fault or breach of the additional terms, conditions, limitations and/or Recipient, (ii) the Discloser regularly discloses other information pertaining to that Component Page 2 of 9 System If any terms of a Software procedures for or corrections of Defects The Supplement conflicts with any other terms of hours during which Maintenance will be provided this Agreement, the terms of the Software for each Component System, the targeted Supplement will control response times for certain defined categories of Maintenance calls for each Component System "Source Code" means computer and Custom Modification, and other details and programs written in higher-level programming procedures (collectively, the Maintenance languages sometimes accompanied by Standards") relating to the provision of English language comments and other Maintenance for each Component System and programmer documentation Custom Modification are described in attached Exhibit 2 "Contract Year" means, with respect to each Baseline Component System and "New Releases" means new editions of a Custom Modification, the period identified= in Baseline Component System or Custom Exhibit 1 Modification, as applicable "Custom Modification" means a change "Notification" means a communication to that Superion has made at Customer's Superion's help desk by means of (j) Superion's request to any Component System in web helpline, (u) the placement of a telephone accordance with a Supenon-genera�ed call, or (iii) the sending of an e-mail, in each specification, but without any other changes case, in accordance with Superion's then- whatsoever by any person or entity Each current policies and procedures for submitting Custom Modification for which Superion will such communications provide Customer with Improvements is identified in Exhibit 1 2 Services "Defect" means a material deviation (a) Tvoes of Services During the term of between the Baseline Component System and this Agreement, Superion will provide Customer its Documentation, for which Defect Customer with Maintenance for, Enhancements of, and has given Superion enough information to New Releases of each Baseline Component enable Superion to replicate the deviation on a System and each Custom Modification identified computer configuration that is both in Exhibit 1 comparable to the Equipment and that is under Superion's control Further, with regard (b) Limitations All Improvements will be to each Custom Modification, "Defect" means part of the applicable Baseline Component a material deviation between the Custom System/Custom Modification, and will be subject Modification and the Superion-generated to all of the terms and conditions of the License specification and documentation for such Agreement and this Agreement Customer must Custom Modification, and for which Defect provide Superion with such facilities, equipment Customer has given Superion enough and support as are reasonably necessary for information to enable Superion to replicate the Superion to perform its obligations under this deviation on a computer configuration that is Agreement, including remote access to the both comparable to the Equipment and that is Equipment under Superion's control 3 Pavment and Taxes "Enhancements" means general release (as opposed to custom) changes to a Baseline (a) Maintenance Fees For the Component System or Custom Modification Improvements, Customer will pay Superion the which increase the functionality of the amount provided for in Exhibit 1 as the Basecne Component System or Custom "Payment Amount" for the first Contract Year Modification in question For each Contract Year subsequent to the initial Contract Year, Superion reserves the right to "Improvements" means, collectively, increase the Improvements fees Fees for Maintenance, Enhancements and New Improvements for a Baseline Component Releases provided under this Agreement System/Custom Modification are due on the first day of the first month of the Contract Year for "Maintenance means using reasonable that Baseline Component System/Custom efforts to provide Customer with avoidance Modification Page 3 of 9 agrees and understands that SUPERION (b) Additional Costs Customer will also MAKES NO WARRANTIES WHATSOEVER, reimburse Superion for actual travel and living EXPRESSED OR IMPLIED, WITH REGARD expenses that Superion incurs in providing TO ANY IMPROVEMENTS AND/OR ANY Customer with Improvements under this OTHER MATTER RELATING TO THIS Agreement, with reimbursement to be on an AGREEMENT, AND THAT SUPERION as-incurred basis Such travel and living EXPLICITLY DISCLAIMS ALL WARRANTIES expenses will be governed by Superion's OF MERCHANTABILITY AND FITNESS FOR Corporate Travel and Expense A PARTICULAR PURPOSE FURTHER, Reimbursement Policy and will be invoiced on SUPERION EXPRESSLY DOES NOT a monthly basis in arrears and due within thirty WARRANT THAT A COMPONENT SYSTEM, (30) days from the date of invoice In no event ANY CUSTOM MODIFICATION OR ANY shall travel expenses exceed those IMPROVEMENTS WILI BE USABLE. BY established in City of Sunrise Code of CUSTOMER IF THE COMPONENT SYSTEM Ordinances 2-2 OR CUSTOM MODIFICATION HAS BEEN MODIFIED BY ANYONE OTHER THAN (c) Taxes. Customer is responsible for SUPERION, OR WILL BE ERROR FREE, paying all taxes (except for taxes based on WILL OPERATE WFTH{JUT INTERRUPTION Superion's net income or capital stock) OR WILL BE COMPATIBLE WITH ANY relating to this Agreement, the Improvements, HARDWARE OR SOFTWARE OTHER THAN any services provided or payments made THE EQUIPMENT under this Agreement Applicable tax amo�,nts (if any) are NOT included in the fees 6 Termination A party ha:, the right to set forth in this Agreement If Customer is terminate this Agreement if the other party exempt from the payment of any such taxes, breaches a material provision of this Agreement Customer must provide Superion with a valid Either party has the right to terminate this tax exemption certificate otherwise, absent Agreement at any time while an event or proof of Customer's direct payment of such condition giving rise to the right of termination tax amounts to the applicable taxing authority exists To terminate this Agreement, the party Superion will invoice Customer for and seeking termination must give the other party Customer will pay to Superion all such tax notice that describes the event or condition of amounts termination in reasonable detail From the date of its receipt of that notice, the other party will have thirty (30) days to cure the breach to the 4 Term This Agreement will remain in full reasonable satisfaction of the party desiring force and effect throughout the initial Contract termination If the event or condition giving rise Term (October 1, 2017 to June 30, 2018) to the right of termination is not cured within that After the initial Contract Term, this Agreement period, then the party seeking to terminate this will renew for the additional Contact Term Agreement can effect such termination by (July 1, 2018 to June 30, 2019) unless, at providing the other party with a termination least six (6) months prior to the expiration of notice that specifies the effective date of such the initial Contract Year, Customer notifies termination Termination of this Agreement will Superion in writing of Customers intent not to be without prejudice to the terminating party's renew the Agreement for the second Contract other rights and remedies pursuant to this Term During the second Contract Term, the Agreement Customer reserves the right to terminate the Agreement by providing Superion with at least 7. Confidential Information Except as sixty (60) days' notice prior to the ntended otherwise permitted under this Agreement, the cancelation date After the second Gontract Recipient will not knowingly disclose to any third Term, this Agreement may be extended, upon party or make any use of the Discloser's written request by the Customer, for a period Confidential information The Recipient will use of(6) months to be billed on a month-to-month at least the same standard of care to maintain basis, and requiring at least sixty (60) days' the confidentiality of the Discloser's Confidential notice by either party terminate the Agreement Information that it uses to maintain the during this period confidentiality of its own Confidential Information of equal importance Except in connection with 5 Disclaimer of Warranties Customer the Software and any software provided with the Page 4 of 9 Software, the non-disclosure and non-use obligations of this Agreement will remain in full 11 No Waiver A party's failure to enforce its force with respect to each item of Confidential rights with respect to any single or continuing Information for a period of ten (10) years after breach of this Agreement will not act as a waiver Recipient's receipt of that item and provided of the right of that party to later enforce any such the public records exception continues to be rights or to enforce any other or any subsequent met- However, Customer's obligations to breach maintain both the Software and any software provided with the Software as confidential will 12 Choice of Law' Severability This survive in perpetuity Agreement will be governed by and construed under the laws of the State of Ohio, without 8. Notices All notices and other reference to the choke of laws provisions communications required or permitted under thereof If any provision of this Agreement is this Agreement must be in writing and will be illegal or unenforceable, it will be deemed deemed given when Dehered personally, stricken from the Agreement and the remaining sent by United States regisTered or certified provisions of the Agreement will remain in full mail, return receipt requested, transmitted by force and effect facsimile confirmed by United States first class mail, or sent by overnight courier 13 LIMITATIONS OF LIABILITY Notices must be sent to a party at its address shown on the first page of this Agreement or (a) LIMITED LIABILITY OF SUPERION to such other place as the party may SUPERION'S LIABILITY IN CONNECTION subsequently designate for its receipt of WITH THE IMPROVEMENTS OR ANY OTHER notices MATTER RELATING TO THIS AGREEMENT WILL NOT EXCEED THE FEES THAT 9. Force Majeure Neither party will be CUSTOMER ACTUALLY PAID TO SUPERION liable to the other for any failure or delay in FOR THE IMPROVEMENTS FOR THE YEAR performan(se under this Agreement due to THAT SUCH LIABILITY ARISES circumstances beyond its reasonable control, including iscts of God, acts of war, accident, (b) EXCLUSION OF DAMAGES labor disruption, acts, omissions and defaults REGARDLESS OF WHETHER ANY REMEDY of third parties and official, governmental and SET FORTH HEREIN FAILS OF ITS judicial action not the fault of the party failing ESSENTIAL PURPOSE OR OTHERWISE, IN or delaying in performance NO EVENT WILL SUPERION BE LIABLE TO 10 Assianrnent Neither party may CUSTOMER FOR ANY SPECIAL, assign any of its rights or obligations under INCIDENTAL, OR CONSEQUENTIAL this Agreement, and any attempt at such DAMAGES, WHETHER BASED ON BREACH assignment will be void without the prior OF CONTRACT, TORT (INCLUDING written consent of the other party For NEGLIGENCE), PRODUCT LIABILITY, OR purposes of this Agreement, "assignment' will OTHERWISE, AND WHETHER OR NOT include use of the Software for benefit of any SUPERION HAS BEEN ADVISED OF THE third party to a merger, acquisition and/or POSSIBILITY OF SUCH DAMAGE other consolidation by, with or of Customer, including any new or surviving entity that (c) BASIS OF THE BARGAIN results from such merger, acquisition and/or CUSTOMER ACKNOWLEDGES THAT other consolidation However, the following SUPERION HAS SET ITS FEES AND will not be considered "assignments for ENTERED INTO THIS AGREEMENT IN purposes of this Agreement Superion's RELIANCE UPON THE LIMITATIONS OF assignment of this Agreement or of any LIABILITY AND THE DISCLAIMERS OF Superion rights under this Agreement to WARRANTIES ANIS DAMAGES SET FORTH Superion's successor by merger or IN THIS AGREEMENT, AND THAT THE SAME consolidation or to any person or entity that FORM AN ESSENTIAL BASIS OF THE acquires all or substantially all of its capital BARGAIN BETWEEN THE PARTIES stock or assets, and Superion's assignment of this Agreement to any person or entity to 14 Entire Agreement This Agreement which Superion transfers any of its rights in contains the entire understanding of the parties the Software Page 5 of 9 with respect to its subject matter, and does not modify this Agreement No supersedes and extinguishes all prior oral and modification of this Agreement will be effective written communications between the parties unless it is in writing, is signed by each party, about its subject matter Any purchase order and expressly provides that it amends this or similar document which may be issued by Agreement Customer in connection with this Agreement Page 6 of 9 EXHIBIT 1 Customer City of Redlands CONTRACTYEAR* October 1, 2017 through June 30, 2018, July 1, 2018 through June 30, 2019; July 1, 2019 through December 31, 2019 Optional Month to] Monthly Annual Monthly Month 1 Qty Apphcatron 1011117.6130116 711118 6130119 711118 6130119 711119 12131119 1 OS General Ledger $ $ $ $ 1 OS Nucleus $ $ s S 1 OS Accounts PayablelEncumbrances $ $ S S 1 OS Accounts FeceivablelCash Receipts $ $ $ $ 1 OS Bank Reconciliation S s $ $ 1 OS PerscrVEnl,4Database $ $ $ $ 1 OS Fixea Assets $ $ $ $ 1 OS Job Project Ledger $ $ $ $ 1 OS Budg-t keg i Detail $ $ S $ 1 OS Purcl?aslns: $ $ $ $ 1 OS Stares Inv,atory S S $ $ 1 OS Bid Management $ s S S 1 1 OS Bid&Quote Management $ $ $ $ 1 Os Payroll $ $ S S 1 OS Human Resources $ $ $ S 1 OS Position Budgeting $ $ $ $ 1 OS Easy Laser Forms S $ $ $ 1 OS image Enabler $ $ S 1 OS Click Drag &Drill(Report Writer) $ $ w $ 1 OS Notsight $ $ a $ 1 :is Hassle Free Support S S $ $ 1 OS Open Link $ $ $ $ 1 OS Querixqx fglc.r3—hp;1467gx ora.r3_hp 1467gx_rt.r3_hp'1467 50 $ $ 5 S 1 OS Employee Online $ S $ $ 1 OS work Order Management $ S $ $ 1 OS MicroFocus Development 600000457440 $ $ $ S 1 OS Microfocus Net Express Runtime Bundles 600000457443 s $ S S 1 0$ MicroFocus Development 600000457441 $ $ $ $ 1 OS Microfocus Net Express Runtime Bundles 600000457442 $ S $ $ 1 OS Remote Service Processing $ 8,912.36 S 114 434 76 $9,536.23 $10,203 76 Total $ 8,912.36 $ 114,43476 $ 9,536.23 $10,20376 `Improvements fees for current Contract Year are subject to change and will be specified by Superion in an annual invoice Please note that for the term beginning in 2018, a 7% increase will be applied to your maintenance The fees for 2019 have not yet been determined The fees provided above are estimates only. Improvements fees are due thirty (30) days prior to the commencement of the Contract Year for which such fees are being remitted Improvements fees for any subsequent Contract Year are subject to change and will be specified by Superion in an annual int oice APPLICABLE TAXES ARE NOT INCLUDED IN THIS EXHIBIT 1, AND, IF APPLICABLE, WILL BE ADDED TO THE AMOUNT IN THE PAYMENT INVOICE{S} BEING SENT SEPARATELY TO THE CUSTOMER Improvements Surcharge Imposed In Certain Instances At the commencement of any Contract Year where Customer is operating on a version of a Baseline Component System that is more than two (2) general release versions behind the then-current release for any Component System, Superion will Page 7 of 9 assess a ten percent (90%) surcharge over and above the Improvements fee for that Contract Year, with such surcharge to be imposed on a prorated basis for the portion of the Contract Year that Customer remains on a general release version that is more than two (2) releases behind the then-current release of the Component Systems in question Once Customer is using a release that is no more than two (2) general release versions behind the then-current release, the Improvements surcharge will be removed on a prospective basis, as of the date that Customer is using the release that is no more than two (2) general release versions behind the then-current release r Page 8 of 9 EXHIBIT 2 Maintenance Standards I Hours During Which Superion's Telephone Support Will be Available to Customer in Connection with the Provision of Maintenance Unless otherwise noted in Exhibit 1, support hours are Monday through Friday, 8 00 A M to 5 00 P M Customer's Local Time within the continental United States, excluding holidays ("5x11") II. Targeted Response Tunes With respect to Superion's Maintenance obligations, Supenon will use diligent, commercially reasonable efforts to respond to Notifications from Customer relating to the Baseline Component Systems/Custom Modifications identified in Exhibit 1 of this Agreement in accordance with the following guidelines with the time period to be measured beginning with the first applicable Superion "Telephone Support" hour occurring after Superion's receipt of the Notification Priority.:.:: Description Response Goal* Resolution Goal* Urgent A support issue shall be considered Urgent Superion has a Although resolution 1 when it produces a Total System Failure, stated goal to times vary meaning Superion's Component Systems are respond within 60 depending on the not performing a process that has caused a minutes of the exact issue and complete work stoppage issue being customer reported and have environment, a resolution plan Superion has a within 24 hours stated goal to resolve an urgent Critical A support issue shall be considered Critical Superion has a issue within 24 2 when a critical failure in operations occurs, stated goal to hours OR provide a meaning Superion's Component Systems are respond within two resolution plan with not performing a critical process and prevents hours of the issue urgent issues within the continuation of basic operations Critical being reported 24 hours of the problems do not have a workaround This issue being classification does not apply to intermittent reported problems Non- A support issue shall be considered Non- Superion has a A resolution plan Critical Critical when a non critical failure in stated goal to details the steps 3 operations occurs, meaning Superion's respond within four necessary to Component Systems are not performing non- hours of the issue understand and critical processes, but the system is still being reported possibly resolve the usable for its intended purpose or there is a issue workaround Minor A support issue will be considered Minor Superion has a 4 when the issue causes minor disruptions in stated goal to the way tasks are performed but does not respond within 24 affect workflow or operations This may hours of the issue include cosmetic issues, general questions, being reported and how to use certain features of the system *Measured from the moment a Case number is created As used herein a 'Case number"is created when a) Superior's support representative has been directly contacted by Customer either by phone, email, in person, or through Superior's online support portal and b) when Supenon's support representative assigns a case number and conveys that case number to the Customer Page 9 of 9