HomeMy WebLinkAboutContracts & Agreements_149-2010_CCv0001.pdf LICENSE AND SUPPORT AGREEMENT
This license and Support Agreement ("Agreement") is made. this 5th day of October, 2010 (the "Effective Date") between Dialogic
Communications Corporation, dba Plaint;ML, a Tennessee corporation ("PlantCM '), located at 730 Cool Springs Blvd., Suite 300
Franklin.Tennessee 37067,and City of Redlands("Licensee") located at 35 Cajon Streit.Redlands,CA 92373.
1 Definitions.
1.1 "Documentation"means written andfor on-line material provided by PlautCML to assist Licensee in the use of the System.
1.2 "Effective Bate"means the date scat forth abov=e.
1.3 "Equipment"means the Equipment or comparable equipment delivered by Plant0vll hereunder.
l.d "Site"means Licensee',,,location at 212 Brookside Ave,Redlands.CA 92373
1.5 "Software" means the PlantCML soft vsirs; programs aid any updates, modifications and corrections thereto provided by
PlantCML to licensee hereunder.
1.6 -Third Partys Software"means any sollcvare developed by a third party which is installed by PlantCML on the Equipment
1.7 "Initial Support Term"means the period beginning on the date set Barth on the Customer Acceptance Certificate contained in the
Statem crit of 4''crk associated with this agreement, or ninety (90) calendar days after PlantCNIL determines that implementation of the
Equipment and Softw=are is complete,whichever is earlier,and ending one(1)year after such date.
1,8 "Initial Warranty Period" means the period beginning on the date sett forth on the Customer Acceptance Certificate contained in
the Scope of Work associated with this Agreement or ninety (90) calendar datyx after PlamCNIL determines that implementation of the
Equipment and Software is complete,whichever is earlier,and ending one(1)year afters such date.
2 Delivfer.1 of Software and Eguipmenit Licensee shall have the Site properly prepared to accept delivery of the Equipment and
PlantCML shall deliv=er the Equipment to Licensee. In no event shall PlantCML be responsible for delays in delivers or installation or any<
damages to Licensee resulting from any delay. Delivery shall be F,O.B. point of origin. Title and risk of loss shall pass to Licensee upon
shipment:
3 Payment and Taxes.
3.l Licensee will pay PlanmC:M1, all fees within thirty{30) days of the date of invoice in accordance with Schedule A. PlantCML
reserves and Licensee grants PlantCML a security interest in the Equipment as security for performance by Licensee of its obligations
hereunder including.;but not limited to,payment of the fees. Licensee shall execute other documents as requested to perfect this interest.
3.2 If Licensee elects to purchase annual support services for the Software» such support services shall automatically renew annually}'
unless terminated by written notice by Licensee to PlaanlCkIL not less than ninety (90)days prior to the expiration of the then in effect term.
A description of PlamCMUs support,services is set forth in Schedule B which is incorporated herein by,,reference.
3.3 Licensee will pay° all taxes based on this Agreement or any product or services related thereto, excluding taxes based on
Pk tC lblL's_income but including personal property taxes. if any. All shipping and insurance charges for-products shipped between
PlantCMI,and Licensee will be paid by Licensee:.
3.d In addition to any anther remedy available to PkmtCML, for a late payment by Licensee, Licensee shall pay a charge of 1.5%per
month,or the maximum percentage=permitted layT applicable law.whichever is less,on:any amount not paint when due.
4 Installattion and Training: Lic see Bata.
4.1 Installation. PlantCML will provide installation asset forth in Schedule A.
.2 Training. Ifpurchased by Licensee the nature and duration of training services will be reflected on Schedule A. The tet°an of any
annual training subscription purchased by Licensee shall expire with the:-Initial Support Term,
.3 Licensee Clata.licensee shalI have responsibility for the aaccuracy or functionaltry of any data it places into the Sv°stern(`Licensee
Lata")and for adherence tea any privacy act or regulation regarding such Licensee Data it selects and stares onto the Systema. Regardingany
self registration portal tool purchased or licensed by Licensee through or with PlantCML. Licensee shall assume all duties.obligations aani
compliance with tiny applicable lave regarding its use., including but not limited to the gathering, storage and dissemination orsucd Licensee
Data. Licensee also shall he solely responsible for communicating any applicable notices or terms of use to its re istrant:i; These duties and
obligations are non-delegable by Licensee to IPlaotC"a L. `
5 Aorranty.
5.I Original )Equipment Manufacturer. PlatntClvll.. does not provide a vvaarraanty° with respect to any third party, equipment
mauatidactured by ata original equipment manufacturer(C)FIM):however,PlantC ML will pass along to Liceiasei a n y existing-C)UNI warranty to
the e�tent authorized by the C)EM,
5.2 Software Warranty. PlantCMI_ warrants for the Initial Warranty Period that the PlantCML Software shall perform, in material
accordance with the Documentation current as of the Effective Date. ANY AND ALL THIRD PARTY SOFTWARE IS PROVIDED"AS
IS"AND WITI-I ALI,FAULTS,
5.2,1 During the Initial Warranty Period, PlantCMI.,will provide such assistance as it deems reasonably necessary to cause the
PkmtClv1L Software to perform materially in accordance with the then current Documentation provided that Licensee installs all updates.
modifications and correction-,provided by PlantCML and that Licensee's use of the S(uftware is in accordance with this Agreement and the
Documentation.
5.2,2 Licensee may notify PlantCNIL or Software errors or defects it believes to exist and if Plant(,MI,is able to confirm that
such error or defect exists through independent testing,PlantC.ML will use commercially reasonable efforts to correct such error or defect.
5.23 LICENSEE'S EXCLUSIVE REMEDY, AND F1lantCML'S ENTIRE LIABILITY IN CONTRACT, TORT OR
OTHERWISE FOR BREACH OF ANY OF THE ABOVE WARRANTIES WILL BETO USE ITS COMMERCIALLY REASONABLE
EFFORTS TO PROVIDE A CORRECTION OR WORK AROUND FOR ANY MATERIAL NONCONFORMITY WHICH IS (i)
REPORTED TO PlarytCNIL BY LICENSEE WHILE PlantCML IS OBLIGATED TO PERFORM SUPPORT SERVICES AND (ii)
REPRODUCIBLE BY Plant(,ML IN THE EXECUTION ENVIRONMENT,
5.3 Limited Warranty. IF THE PlarftCML SYSTEM IS USED IN EMERGENCY SITUATIONS, THEN THE
SYSTEM IS INTENDED TO ONLY INCREASE THE NOTICE WHICH WILL BE GIVEN. THERE IS AND CAN NOT
BE ANY GUARANTEE THAT ALL PERSONS INTENDED TO BE CONTACTED WILL BE CONTACTED, PlantCML
ACCEPTS NO RESPONSIBILITY FOR ANY FAILURE OF T14E PlantCML SYSTEM TO CONTACT ANY PERSON OR
PERSONS AND IS NOT RESPONSIBLE FOR ANY DAMAGE OR INJURY WHICH RESULTS FROM ANY FAILURE
TO CONTACT ANYONE.
5.4 Disclaimer of Warranties, JTIE EXPRESS WARRANTIES IN THIS SECTION 5 ARE EXCLUSIVE AND IN LIEU OF ALL
OTHER REPRESENLATIONS AND WARRANTIES. PlayttCML DISCLAIMS ALL OTHER WARRANTIES, EXPRESS, IMPLIEJ)OR
STATUTORY, INCLUDING WITHOUT LIMITATION ANY WARRANTY OF MERCHANTABILITY, FITNESS FOR A
PARTICULAR PURPOSE OR NONINFRINGEMENT. PlantCML DOES NOT WARRANTTHAT"THE SOFTWARE IS ERROR-FRFE.
OR WILL OPERATE WITHOUT INTERRUPTION:
5.5 The warranties in this Section 5 will not apply to any defects or problems caused in whole or part by(i)defects in any Equipment,
00 failure of any portion of equipment to function in accordance with manufactureCs specifications, (iii) modifications or enhancements
made to the Software by anyone other than PlamCML. (iv) any software, hardware, firmware, peripheral or communication devices used
with the Software not provided by or approved of in writing by PlantCML. (v) failure of Licensee or any third party to follow PlantCML-s
most current instructions for proper use of the Software, (vi)negligence of Licensee orany third party, or(vii)failure to install and use the
updates, modifications and corrections provided by PlantCML. If Licensee falls within any of the foregoing exceptions and requests
PlantCML to provide support services for such defect or problem., Licensee will pay PlantCML for services at PlantCMI,,'s then current
hourly rate.
6 Software SuppgLt Services;
6.t Subject to the terms of this Agreement and provided that Licensee pays the fees specified in this Section 6.1, PlantCMI, will
provide Licensee with the support services described in Schedule 8,the PlantCML Technical Services Center Support Play], Licensee will
provide PlanaCML with all information, documentation, technical assistance, and access to the Site as PlaydCML may require in order to
provide services hereunder.
7 License Grant.
7.1 Scope. PlantCML hereby, grants to Licensee., and Licensee accepts, a non-exclusive., non-trainsterable license to use the object
code version of the Softwarc and the Documentation for its internal business purposes at, the Site in accordance with this Agreement,
Licensee may use the Software only on the Equipment or substitute equipment approved in writing by,PlantCNAL, Licensee may make one
copy of the Software for backup purposes only but shall include therein all proprietary marksani} notices included in the original, Licensee
may not otherwise copy or permit the copying of any part of the Softvvare or Documentation.
7.2 Restrictions on Use. Licensee may not,directly or indirectly,(i)reverse engineer. decompile,disassemble or otherwise attempt to
discover thea source code or underlying ideas or algotithins of the Soilware; (ii) itiodif-ly, translate, or create derivative works based on the
Software., (iii) copy (except for archival purposes), rent, lease, resell, sublicense, distribute, assign, or otherwise transfer rights to the
Soffi,vare,except as otherwise provided herein:(iv)use or allow the transfer,transmission,export,or re-export of the Software itr violation of
any export control laws or regulations administered by the U.S. Commerce Department, OFAC, or any other government agency: or (v)
remove any proprietary notices or labels on the Software,
73 Updates and Upgrades, Updated or upgraded versions of the Software may be created or issued by PlantCML from time to time.
If the Software is an updated or upgraded, Licensee is bound by, the terms of this License and may only use that updated or upgraded
Software in accordance with this License, PlantCML may, at its sole discretion, require the installation of saftw,are'updates or upgrades to
maintain any applicable warranty.
7.4 Intellectual Property,Trademark and Copyright. PlantCML.retains ownership of the Sottwware, any portions or copies thereof,
and all rights therein. PlantCMLreserves all rights not expressly granted to Licensee. This License sloes not grant Licensee any rights in
connection with anv trademarks or service rmarks of PlantCME,, its suppliers or licensors. All right,title,interest and copyrights in and to the
Software attd the.accompanying Documentation and any copiers of the Software arc owned by PlantC'.MI., its suppliers or licensors. All title
and intellectual property rights in and to the content which may he accessed through use of the Software is the property of the;respective'
content owner and may be protected by applicable copyright or other intellectual property laws and treaties. `This license grants Licensee nes
rights to use such content;
7.5 U.S. Government restricted Rights. 'The Software and associated Equipment and Documentation are provided with
RESTRICTED RIGHTS. With respect to any acquisition of''the Software by or for any unit or agency of the United ;Mates Government
("Government"), the Software shall be classified as"commercial computer software."as that terra is defined in the applicable provisions of
the Federal Acquisition Regulation ("FAIL'') and supplements thereto, including the Department of Defense (LtoD) FAR Supplement'
("DFARS"), The Software was developed entirely at private expense and no part of the Softwatre was first produced its the performance of a
Government contract. If the Softwware is supplied for use by I_oD,the Software is delivered subject to the terms of this LICENSE and either
(i)in accordance with DFARS 227-721)2-1(a)and 227;72532-3(a)or(ii)with restricted rights in accordance with DFARS 252-227-7013 (Oct.
1988),as applicable. If the Software is supplied for use by Government agency other than DoD,the Software is restricted computer software
delivered subject to the terms of this LICENSE and(I)FAR 12:212;(ii)FAR 52.227-19 or(iii)FAR 52:227-14.as applicable.
7.6 Beta Release or Pre-release Versions. In the event the licensed software or any software module is<a beta releatse or pre-release
version,the terms of this Section 7.6 and Agreement shall apply in their entirety. The lice=ase to use the licensed software shall expire:on the
date set forth in the applicable Beta Site Agreement signed by licensee or,in the absence of such agreement, 120 days after installation or 120
day=s from the date on which the software or module las first made available or presented to you. The licensed software may contain more
or less features than the commercial release of the software that PlantCML ultimately intends to distribute. While PlautCML intends to
distribute a commercial release of the licensed software, PlantCML reserves the right at any tinge not to release a commercial release cif the
licensed software or to after features, specifications, capabilities, functions, licensing terms, release dates, general availability or other-
characteristics of the commercial release, You agree that the beta release or pre-release versions are not suitable for production use and may
contain errors affecting,their proper operation. In the event the;beta or pre-release licetased software was provided to you at no charge,for
purposes of'the total liability limitation set forth in the section entitled"Limitation ofLiability"the"total amount paid to PlantCMLshall be
deemed to be PlantCML's list price for the licensed software or software module, or other amount aas expressly stated in ally Beta Site::
Agreement signed by you and PlantCML.
7.7 Demonstration Software. In the event the licensed sof vaare has been provided as a demonstration copy of the licensed sof3wwaars.;
whetherfor a fee or it no charge, the: terms of this Section 7.7 and this Agreement shall apply in their entirety, Your license to use the
licensed software shall expire 120 days after-installation or 1253 days from the date on which the demonstration software was first made
available or presented to you.. In the event the demonstration copy of the]licensed softwware was provided to you at no charge,for purposes of
the total liability limitation set forth in the section entitled"Limitation of Liability"the'*total amount paid to PlwitCML"shall be deemed t€3:
be PlantCML's list price for the licensed software or module..
8 Limitation of Liability. IN NO EVENT WILL. PlantCML BE LIABLE "TO LICENSEE FOR ANY INDIRECT. INCIDENTAL,
SPECIAL, CONSEQUENTIAL OR PUNITIVE DAMAGES. INCLUDING WITHOUT Lilv'IITATION, LOSS OF DATA, LOSS OF
PROFITS,DOSS OF BUSINESS INFORMATION,BUSINESS INTERRUPTION OR ANY OTHER PECUNIARY LOSS ARISING OUT
OF THE DISE OF OR INABILITY TO USE THE HOSTING SERVICES, EQUIPMENTSOFTWARE, ANDIOR THIRD) PARTY
SOFTWARE OR THE PROVISION OF OR FAILURE "LO PROVIDE SUPPORT SERVICES, ARISING OUT OF OR RELATED 'TO
THIS AGREEMENT, EVEN IF PlantCML HAS BEEN; ADVISED OF, KNEW OF. OR SHOULD HAVE KNOWN OF THE
POSSIBILITY OF SUCH DAMAGES, PlantCML"S TOTAL LIABILITY TO LICENSEE HEREUNDER, IF ANY. WILL IN NO EVENT
EXCEED THE TOTAL AMOUNT" PAID TO PlantCML HEREUNDER IN THE' TWELVE (12) MONTHS IMMEDIATELY'
PRECEDING THE EVENT GIVING RISE TOTHE CLAIM.
q C'onfidentialiti. A parte receiving Information(defined beloww)of the other will not disclose such Information other than to persons in
its organization who have a need to know and who will be,required to comply with this Section 9. The party receiving Information will not
use such Information for as purpose inconsistent with the terms of this Agreement. "It#otrtaaticatt`"means the Softwware.. Documentation and all
information and intellectual property related thereto(including, but mit limited to all databases provided to Licensee by PlantCML.whether'
created by PlantCMT or its third party=licensors such as, without limitation,the mapping product databases)as,.yell as information related to
the business of PlantCML or Licensee. Information will not includes (i) information publicly known prior to disclosure; (ii) information
coming into the lawful possession of the recipient without any confidentiality=` obligation; and (iii) information required to be disclosed
pursuant to state or federal,regulatory,action or court order, provided adequate prior written notice of any request to disclose is given to the
party whose information is to be disclosed. Each party will exercise at least the sante degree of care to safeguard the confidentiality of the
other's;Infor"enation as it doesto safeguard its own proprietary=confidential intortnation,but not less than a reasonable degree ofcare;
10 Qwnershifa. The Software and Documentation are 1'larttCMI's exclusive;property and constirute a Valuable trade:secret ofPlantCML-
Lic:ens€e will take reasonable steps to protect the trade secret of the Software and Documentation. Ownership of all copses is retained by
PlantC%4L. Licensee may not disclose or make available to third parties;the Soft-ware or Documentation or any portion thereof: PlamCML
shall own all right,title and interest in and to all corrections,modifications,enhancements,programs,andwork product conceived,created or
developed, alone or with licensee or others;, as a result of or related to the performance of this Agreement, including all proprictatry rights
therein and based thereon. Except and to the extent expressly provided herein, PlantCNlL does not grant to Licensee any right or license,
express or implied.in or to the Software and Documentation or any of the foregoing.
I I Infringerng Lit Indemnity. With the exception of any third party software, hardware or equipment that may be provided under this
Agreement.PlantCML agrees to field Licensee harmless from liability to third parties resulting from infringement of any United States patent-
or copyright or trade secret by the PlantCML software purchased hereunder and PlamCMI, further agrees to pay all damages and costs.,
including reasonable legal fees, which may be assessed against Licensee under any such claim or action. PlantCML shall be released from
the foregoing obligation unless Licensee provides Plan1CML with (i) written notice within fifteen (15) days of the date Licensee first
becomes aware of such a claim or action,or possibility thereof,(ii)sole control and authority over the defense or settlement thereof-,and(iii)
proper and full information and assistance to settle Laid/or defend any such claim or action. Without limiting tile foregoing, if a final
in unction is, or PlamCML believes, in its sole discretion, is likely to be, entered prohibiting the use of thesoftwareby Licensee as
contemplated herein, PlantCML will,at its sole option and expense,either(a)procure for Licensee the right to use the infringing software is
provided herein or ib) replace the infringing soffivare with noninfringing, functionally equivalent Products, or (c) suitably modify the
infringing software so that it is not infringing-, or (d) in the event (a), (b) and (c) are not commercially reasonable, terminate the license,
accept return of the infringing software and refund to Licensee an equitable portion of the license fee paid therefor. Except as specified
above,PtantCML will not be liable for any costs or expenses incurred without its prior written authorization. Notwithstanding the foregoing,
PlantCML assumes no liability for infringement claims with respect to sollware(i)not supplied by PlantCML, (ii)made in whole or in part
in accordance to Licensee's specifications,(iii)that is modified after delivery by PlantCML,(iv)combined with other products,processes or
materials where the alleged infringement relates to such corribination.
.(v)where Licensee continues allegedly infringing activity after being
notified thereof or after being informed of modifications that would have avoided the alleged infringement., or(vi) where Licensee's use of
the software is not strictly in accordance with this Agreement, THE FOREGOING PROVISIONS OF THIS SECTION STATE THE
ENTIRE LIABILITY AND OBLIGATIONS OF PlantCML ANDTHE EXCLUSIVE REMEDY OF LICENSEE WITH RESPECT' TC}
ANY ACTUAL OR ALLEGED INFRINGEMENT OF ANY PATENT, COPYRIGHT, TRADE SECRET, TRADEMARK OR OTHER
INTELLECTUAL PROPERTY RIGHT BY THE SOFTWARE.
12 hijunctive,Relief. Each party acknowledges that a violation or threatened violation by it of Section 9 or 10 hereof would result in
damage that is largely unarigible but nonetheless real and that is incapable of complete remedy by award of damages. Thus,such violation or
threatened violation will give the injured party the right to a court-ordered injunction to specifically enforce such covenant or obligation. The
party in violation of any such section shall pay as damages reasonable expenses, including but not limited to attorney fees, incurred in
obtaining specific enforcement.
13 Term and Termination. This Agreement will commence upon the Effective Date and will continue until terridnated in accordance
with this Section 13.
13.1 Termination of Support Services. Annual support'services shall automatically renew annually in accordance with Paragraph 3,2,
above.
13.2 Termination by PlantCML. PlamCML may terminate this Agreement without further obligation or liability to Licensee if:
13.2.1 Licensee fails to timely pay any amounts due under this Agreement and fails to make such payments within ten(10)days
of notice from PlantCML;or
13.2,2 Licensee commits any material breach of this Agreement and fails to remedy such breach within ten(10)days of notice
from PlantCML;or
112.3 Licensee becomes the sub�ject of a petition in bankruptcy-. is or becomes insolvent-,oradmits a general inability to pay its
debts as they become due.
13.3 Termination by Licensee, Licensee may terminate this Agreement:
13.3.1 If PlantCML commits any material breach of this Agreement and fails to remedy such breach within sixty(60)days of
notice from Licensee:or
1332 At will by giving PJantCML one hundred twenty,(120)days notice of its election to terminate.
13.E Effect. Upon termination of this Agreement all amounts owed to PlarrCMI,will be immediately due and payable and Plant(A'tt,
will cease performance of all obligations herein without liability to Licensee. Sections 5.3, 7,8.97 10, 12,and 14 shall survive termination,
14 Other Remedies. Plant:CML's right: and remedies Linder this Agreement will be cumulative and in addition it) all other rights and
rernedies available to PlantCM- L in law and in equity
15 Assignment, Neither this Agreement nor any rights or duties hereunder may be transferred,assigned,sublicensed or otherwise disposed
of by Licensee to a third party,by operation of law or otherwise, without PlamCML's prior written consent. Notwithstanding the foregoing,
PlantCML may assign its interests to a parent or affiliate company in the event of sale or merger of its assets so long as the acquiring entity
agrees to assume all of PlantCML's duties mid obligations hercundcr,
16 Partial Invalidity. If any provision of this Agreement is ruled wholly or partly invalid Or unenforceable by a Court or other
government body of competent jurisdiction, the validity and enforceability of all provisions of this Agreement not ruled to be invalid or
unenforceable will be unallected,
17 Modification,Waiver. This Agreement may not be modified or amended except in writing signed by the parties, No term or condition
of this Agreement may be waived except in writing signed by the party charged with waiver, A waiver will operate only as to the specific
term or condition waived and will not constitute a waiver for the tuture.'
18 Notice. All notices and other communications required or contemplated herein will be in writing and delivered either by(i)personal
delivery: (ii) expedited messenger service: (iii) postage prepaid return receipt requested certified mail: or (iv) facsimile and confirmed by
postage prepaid U.S.certified mail,addressed to the party or parties for whom it is intended,at the addresses first w-ritten above or such other
address as the intended recipient previously has designated by written notice to the sender.
19 Governine Law. This Agi-cement will be governed exclusively by the laws of the State of California, without regard to its conflict of
laws provisions, All panties agree that venue regarding any action arising hereunder will be exclusively in San Bernardino County,
California.
20 Third Party Beneficiaries. None of the provisions of this Agreement is intended by the parties,nor shall they be deemed,to confer any
benefit on any person not a party to this Agreement.
21 Independent Contractors. The relationship of the parties hereunder will be one of independent contractors and not that of afranchise,
joint venture or employer. Neither party will have, and neither of thein will represent to any other person that it has. any power, right or
authority to bind the other, or to assume create, my obligation or responsibility, express or<implied, on behalf of the other, except as
expressly provided by this Agreement or as otherwise permitted in writing signed by both parties,
22 Entire Agreement. This Agreement and its schedules constitute the entire agreement of the parties with respect to the suEject matter
hereof, and supersede and cancel all prior agreements between the parties,written.oral or implied with respect to the subject matter hereof
'The terms of any customer-provided purchase order or invoice concerning any product or service provided heretunder will not serve to
replace,modify,or supersede the terms of this Agreement. The terms of this Agreement shall prevail for any and all put-poses.
23 Headings Headings are included in this Ap
,reement for convenience only and are not to be deemed to be part of this Agreeme trm The
interpretation of this Agreement will not be affected by any heading herein.
24 Force Maieure. In the event an act of government,war, fire. flood,act of God,power shortages or blackouts,breakdown of telephone
lines and services,failure of the Internet,or other causes beyond the reasonable control of PlantCML prevents PlantCML from performing in
accordance with the terms of this Agreement, such nonperformance shall be excused and shall not be considered a breach or default for so
long as such conditions prevaiL
25 Marketinz Material. Licensee hereby provides its consent to be identified as a customer in sales announcements or other marketing
material generated by PIantCML from time to time during the term of this Agreement.
L-
26 Attorneys' Fees. In the event any -action is commenced to enforce or interpret any of the terms or conditions of this Agreement, the
prevailing Party shall, in addition to costs and any other relief,be entitled to recovery of its reasonable attorneys* fees, including fees for use
of in-house counsel of the Parties.
Dialo is minunicati C r ration
By: r
Tifle:
Date:—.
Licensee
City of Redlands ATTEST
Pat Gilbreath,Mayor Sam Irwi-n,City Clerk
Date: October 5 , 2010
CHEDUL A
Software - License Fees,:
Licensee shah pay to PlantCML an amount equal to $34,7761 for the Software license;granted hereunder. This fee
includes support for the first year. Such amount shall be paid within thirty (30) days of the date of PlantCML's
invoice.
Hardware and Thirty Party Software:
Licenseeshall pay to PlantCML an amount equal to $17,952 for the Hardware and Third Party Software provided
hereunder. Such amount shall be paid within thirty (30)days of the date of PlantCML's invoice.
Services.
Installation Fees
Installation fees are included in the Software—License Fee price:
Training Fees
Training fees are included in the Software—License Fee price.
Annual Software Support
Fallowing the first year of Support, Licensee may continue support services pursuant to the terms of this Agreement'
by paying Plant ML the annual fee of$5,359.68, to which an increase of 3.25% per year shall be applied for cast
of business increases Such amount shall be paid within thirty (30) nays of the date of PlantCML's invoice. Failure
to pay such amount when due will subject Licensee to a service charge to reactivate support if such services are
interrupted.
SCHEDULE
Technical Services Center Support Plan for On Premise Systems
Dialogic Communications Corporation (;`PlantCML'°) offers PlantCML Software support to purchasers ("Licensee"or
"Customer") of its application Software, in accordance with the teras and conditions of this Technical Services
Center Support Plan ("Support Pian"), which is made a part of and incorporated by reference into the License and
Support Agreement entered into by Customer and PlantCML. Defined terms as set forth in the License and
Support Agreement shall have the same meaning in this Support Plan. This Support Plan does not apply to system
software or any ether third party software.
Conditions of the Support Plan
In order to keep the Support flan active, the Customer is required to
Pay all applicable Support Plan Fees, and
Comply with all terms and conditions of this Support Plan and the License and Support Agreement.
Definitions
Response Time is the period of time that it takes the TSC to call back the Customer when a voice mail has been
left or to provide an update on the call ticket. Response times are only implemented when the call is not resolved
on the first call. Response Time does not mean Resolution Time.
Resolution Time is the period of time it takes to solve a problem. The resolution time is different for each
situation and cannot be determined until the appropriate TSC personnel have evaluated the problem and is able to
determine an approximate resolution time.
TSC Technical Services Center
TSS Technical Services Specialist
TSA Technical Services Analyst
Support Services Provided
Supported Products
The TSC will only support Software approved and installed by PlantCML. The TSC will not resolve requests
associated with software other than that provided by PlantCML; the requests will, however, be logged into the
database. Third Party Software loaded by Customer on a PlantCML system without PlantCML's prior written
approval, voids the associated Software Warranty and this Support Plan, Pursuant to this Support Plan, PlantCML;
as coordinated by its Technical Service Center, will provide issue resolution and updates to supported Software as
further describedbelow:
Hours of Operation
Normal Business Hours (NBH); Monday through Friday, excluding holidays, from 8.0 AM to :OOP , Central Time.
After hours Emergency support only-;see Call Levels
Services Provided
Issue Resolution
The TSC works with Customers to resolve issues related to supported Software that does not perform materially in
accordance with the then current Documentation for such Software, This service is designed to support the
Customer's technician who is adequately trained in the product about which they are calling and listed as an
approved Customer Contact with PlantCML TSC. To be adequately trained the Customer's technician must have
received training directly through a PlantCML training program or have been trained by a Customer Technician that
has received training directly through PlantCML. A trained Customer's technician is responsible for attempting to
troubleshoot issues prior to calling TSC. If the Customer's technician is not adequately trained, based on the
description above, in the product about which he or she is calling, and thus not listed as an approved Customer
Contact, PlantCML TSC personnel will attempt to contact an approved Customer contact for problem resolution.
For security purposes, only Customer contacts that are listed with TSC will receive support unless ar-listed contact
provides approval to do so. In the event of an emergency TSC may make a special allowance if TSC personnel are
unable to reach one of the listed contacts for verification.
To betterfacilitate high'first cell resolution, the TSC will utilize remote control software. This will allow the TSC to
connect to the Customer's system via a dial-up connection and "take control" of the system to perform
troubleshooting and/or resolution services. The TS/TSA will at all times advise the Customer of their intention to
access the system, and upon completion will advise the Customer that they have left;the system, relaying to them
what steps were taken to resolve an issue. The TSC will maintain a database of all calls received from the
Customer, the steps taken to resolve and the resolution: The database will show dates when a call was received
and dates of all contacts related to call:
TSC will work with the Customer to identify errors or defects in the Software, and if the TSC is unable to confirm
that such error or defect exists through independent testing, it will then escalate the issue to PlantCML's RC
Department, The TSC will remain as the Customer contact and will work with the R&D Department to provide
updated information to the Customer through resolution of the issue.
Hardware Support`
PlantCMUs TSC will track hardware issues related to the system during the Initial Support Period and, if a
hardware warranty is purchased through PlantCML from the third party vendor, PlantCML will contact the
appropriate vendor for warranty repairs. For subsequent years the Customer has the option to extend their
warranty by contacting PlantCML Sales. The PlantCML TSC will continue to work with the Customer to diagnose
and make recommendations on hardware issues.
Contacting the PlantCML Technical Services Center
During Normal Business Hours- Customers may caul a dedicated ACCO at 615.794,2307. If ail TSC personnel`
are busy assisting other customers, the call will go to voice mail. If the caller is experiencing an emergency (see
Call Levels below) they may hit 00 for the operator and a TSC manager will be paged to assist:
If the call is not an emergency (as defined below), the caller should leave a message with their name, company
name and Its„ telephone number and a brief description of the reason for the call. Messages are checked
frequently and calls are returned in the order in which they are received, but always within four(4) hours.
After Hours Emergency, If the Customer is experiencing an emergency (as defined below) they should call the
TSC at 615.794. 307. The call will be routed to an answering service where the Customer should leave a clear
message with their name, company name and ID, telephone number and a brief description of the reason for the
call. The on-call TSS will be paned and will return the call within 15 minutes of receipt of the page,
E-mail Bequests: The TSC will respond to e-mail requests within eight( ) business hours. Neste: Emergency
or very important requests should always be phoned into the TSC. Email can sometimes be unreliable and the
TSC has no control over the timely delivery of requests. Email service level commitments are based on the time
the requests actually reach the TSC.
Call Levels applied to this Support Plan
Emergency Call-Immediate Response during NBH; within 15 minutes of page outside NBH
• System will not boot or complete hardware failure.*
• Server Applications will not start.
• Site is experiencing an actual emergency and the system will not send out notifications to one or more
device types,
• Site initiates activation, attempts to stop it, and experiences difficulty doing so.
*If it is determined the system failure is due to software or hardware loaded without coordination with PlantCML or
other acts induced by the end user, resources will be allocated as available to assist but response time is not
guaranteed.
Routine Call-4 hour Response Time
• Attempting to perform maintenance and needs assistance.
• Experiencing partial hardware failure or needs to troubleshoot possible hardware problems.
• Reports are not functioning properly.
• Testing system and needs help making adjustments.
• Assistance with modifying roster members or groups.
• Assistance with speech recording done by Site.
• Assistance creating template scenarios.
Services that require advanced scheduling
• Installation of software or hardware updates or addition.
• Modifications to the system to accommodate telephony changes.
• PlantCML provided speech recording.
• GIS Updates.
Call Procedures & Escalation
The Technical Service Center will maintain call ownership throughout the entire request process. The TSC will
address incoming calls as follows.
1. Capture the Request-The TSS/TSA will capture all requests by phone, e-mail, or voice mail and verify the
right to service based on the Customer's name, support contract status and the approved software support
list. If the request relates to unsupported software, the Customer will be notified. Otherwise, the analyst
will continue with Step 2.
2. Log Request into the Database-The TSS/TSA will open a ticket in the call management system.
Information included on the ticket will include the Customer's name, location, description of problem,
severity of problem, and time of request and person reporting the issue.
I Troubleshoot the Request-The TSS/TSA responsible for resolving the call will acknowledge the open
ticket and work with the Customer to resolve the issue.
4, Escalate to Second Level-The TSS will escalate the request to second level support when the first contact
is unable to make progress in the resolution of the issue in a timely manner.
5. Log Resolution into the Database-The TSS/TSA will log the resolutions to requests in the call
management database
6Verify Customer Satisfaction -The TSS/TSA will follow up and verify that the Customer is satisfied with the
resolution.
7. Close the Request or Ticket-All tickets will be closed after the Customer satisfaction has been verified.
Customer Responsibilities
• Hardware Operating Environment. It is the Customer's responsibility to ensure that the hardware-operating
environment is fully functional and meets PlantCML's minimum operating requirements for the PlantCML
Software supported hereunder,
• Operating System and Ancillary Software Environment. It is the Customer's responsibility to ensure that
the operating system and ancillary software are fully functional, commercially available (except as
otherwise agreed to in writing byPlantCML) and meet PlantCML's minimum operating requirements for
PlantCML}s Sof=tware products .
• The Customer shall maintain a PlantCML application software release that is the most current version of
the Software or one version back from the most currents} released version.
• The Customer Site should have at least one system administrator that has attended PtantCML training,
either at the Customer Site or at the PlantCML University. The Customer shall provide the administrator's
contact information to PlantCML:
• The customer will perform regular maintenance to keep the system in optimal condition. This includes
performing regular tape, CD or DVD backups and creating emergency repair discs when changes are
made, de-fragmenting the hard drive on a regular basis, and testing the system at regular intervals.
• Customer will schedule install of all updates in a timely manner
• Customer will work with TSC staff to maintain an accurate database of contact names.
• Customer will respond to requests for information in a timely manner.
• The Customer will not add software to the system without prior PiantCML approval.
• Customer will not move the system to a neve location without notifying PlantCML:
• Payment of all support fees when due. Failure to renew support fees before the expiration of the then in
effect support term shall result in the imposition of a reinstatement fee at PlantCML's then current rate
before resumption of support services;
Support Limitations
PlantCML's support obligations hereunder will not apply to any PlantCML supported application Software if
correction of an error, adjustment, repair, or parts replacement is required because of
• Accident, neglect, tampering, misuse, improper/insufficient grounding, failure of electric power, failure of
the end user and/or others to provide appropriate environmental conditions, relocation of hardware or
software, or causes other than ordinary use.
• [repair or alteration, or attempted repair or alteration of any PlantCML supported product(hardware and/or
software) by the end user or others.
• Damage or destruction caused by natural or manmade acts or disasters
• Failure or degradation in performance of PlantCML supported equipment(hardware and/or software) due
to the installation of another machine„ device, application or interface not specifically certified and approved
by PlantCML for use.
• The operation of the softwarein a manner other than that currently specified by PlantCML.
• The failure of the Customer to provide suitable qualified and adequately trained operating and maintenance
staff.
• Incompatible or faulty Customer equipment:
• Modifications made without Pl ntCML's written approval to the OS, network, hardware or software
environment or software applications.
Further, support described herein does not include cosmetic repairs, refurbishment, furnishing consumables,
supplies or accessories, making accessory changes or adding additional devices or software applications:
Telephone support and/or field engineering to rectify such unsupported failures as described above may be
obtained from PlantCML on a time & materials basis as set forth in the applicable price list. The labor rate charged
will be the then current PlantCML labor rate (plus expenses) at the time service is requested.
Software Updates
PlantCML will provide application Software updates. Application Software updates are defined as minor
enhancements to the already purchased product feature/functionality set. A product change is classified as minor,
in the discretion of PlantCML, based upon the impact of the change to the core functionality of the product: Notice
of all Software updates available during the terra of the Support Flan will be posted under the "latest Updates and
Patches" section for each product on the PlantCML Support Website located at httri.//sucoortdccusa.com (login
required): Application Software program updates will roll into the existing Support Plan, thereby not extending the
term of the Support Plan, Any change in the two numbers following the decimal point within the product version
number constitutes an application software program update (for example a change from product version 1-10 to
1. 0, or 2.11 to 2,12, or 3.20 to 3.30, etc, will represent an application software program update),
Other Services
Other services not specifically identified as being included in this Support Plan, including but not limited to training,
implementation services, and custom development, are not included.
Gilbreath voted No on the motion restating her position against the sales tax and
the nonbinding nature of any allocations approved by this City Council.
Citv Council Benefits - On motions of Mayor 'Pro 'rem Bean, seconded by
Councilmernber Gallagher, the City Council voted to direct the City Attorney to
prepare for the next City Council meeting resolutions eliminating health, dental,
vision=and life insurance provisions, continuing the City of Redlands policy of
no pension benefits for newly elected and newly re-elected City Council
members, and limiting reimbursement to $2,000 per counclimember for
expenses and use of public resources. As a public comment, Steve Rogers,
pointed out that compensation and benefits of public officials is an item for
investigation by the California Attorney General. The City Manager was
directed to modify the FY2010-201 I Budget Resolution to reflect the impact of
these changes. Councilmembers Harrison and Aguilar voted No on the motions
citing a need for more time to consider the impacts of the proposals.
NEW BUSINESS:
Commission Appointments - On motion of Mayor Gilbreath, seconded by
Mayor Pro Terri Bean, the City Council unanimously approved the appointment
of Judith Ashton, Lorenzo Garbo, Edward P, Gomez, and Bart Stasiuk to serve
four-year terms on the Human Relations Commission ending October 5, '2014;:
Street Light Lo - On motion of Councilmember Harrison, seconded by
Councilmember Gallagher, the City Council unanimously approved authorizing
the City Manager to sign a California Energy Commission low interest loan
application for the City of Redlands energy efficient Light Emitting Diode Street
Lighting Initiative.
DOJ Grant - On motion of Councilmember Aguilar, seconded by
Councilmember Gallagher, the City Council unanimously agreed to accept a
cooperative agreementigrant from the U.S. Department of Justice (DOJ) in the
amount of$473,161 to develop an Whone-based crime mapping application to
assist law enforcement officers with understanding spatial and temporal crime
patterns. As a public comment, Steve Rogers cautioned against infringing on
the people's right to privacy.
Reverse,,.9,1,1tJp grade - On motion of Mayor Pro 'rem Bean, seconded by
Councilmember Gallagher, the City Council unanimously approved a license
and support agreement between the City of Redlands and Dialogic
Communications Corporation, dba Planet CML, to upgrade the currently
unusable emergency notification system used by the Redlands Police
Department for citizen alerts and employee callouts.
PUBLIC HEARINGS:
October 5,20 10
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