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HomeMy WebLinkAbout000306 Original ContractRECITALS SUBSCRIPTION AND SUPPORT SERVICES DeskOfficer Online Reporting System (DORS) SOFTWARE SUBSCRIPTION, SUPPORT AND MAINTENANCE AGREEMENT City of Port Angeles Record #000306 THIS SOFTWARE SUBSCRIPTION, SUPPORT AND MAINTENANCE AGREEMENT "Subscription and Support Agreement is made on this 27th day of January, 2012, by and between the City of Port Angeles located at 321 East 5th Street, P.O. Box 1150, Port Angeles, WA 98362, a municipal corporation under the laws of the State of Washington "Customer and Coplogic, Inc., an existing California corporation, whose address is 231 Market Place #520 San Ramon, CA 94583 "Company Customer has obtained a license to use the DeskOfficer Online Reporting System "Software for the term of that agreement, more particularly described in the Setup and License Agreement of the same date. Customer wishes to retain Company to provide software maintenance and support services for the Software. 1. Generally. During the duration of this Subscription and Support Agreement, Company shall provide to the Customer a subscription license, as well as support and maintenance for the Software purchased in accordance with the terms of this Subscription and Support Agreement and the response time described in Schedule A, attached hereto. Support includes an annual review of current outstanding questions and usage issues at customer request; the provision of new and upcoming releases of updates; and enhancements made to the Software that the Customer is licensed to use that are generally made available without additional charge to other users of the Software with similar support and maintenance contracts. The parties shall amend Schedule B from time -to -time in the event that the Customer requests customizations to the Software. 2. Hours of Support. Company will provide the support services during the hours as described in Schedule A attached hereto. 3. New Releases. Company will, from time -to -time issue new releases of the software (Schedule B), and when it does, it will provide a copy of the release documentation, and /or updated user or system documentation. If any part of the Customer's custom code is not part of the general release delivered by Company, then Company will assist and provide guidance for integrating the custom code into the new release. Any time taken to modify or repair unauthorized changes that may require Company assistance to modify may be billed at Company's then current pricing schedule. 4. Exceptions. If applicable, Company is not responsible for maintaining unauthorized Customer modified portions of the Software, Customer data files or for maintaining portions of the Software affected by unauthorized Customer modified portions of the Software. The Customer agrees that the equipment on which the Software operates will be operating properly at all times and must have been and continue to be properly maintained by the manufacturer of the equipment or a properly qualified service organization. Corrections for difficulties or defects traceable to the Coplogic DORS Software Subscription, Support and Maintenance Agreement 1 Customer's errors or unauthorized changes, Customer's hardware, or conflicts with other software not identified by Company as compatible or part of the recommended operating environment may be subject to billing at Company's current standard time and material charges. The Customer will be responsible for properly testing and applying routine virus updates and security patches without the need for additional Company's notification. Company will be responsible for testing Company's software updates prior to making them available to the Customer. If applicable, the Customer acknowledges responsibility for testing Company's software updates before applying them to the Customer's production systems. If applicable, for servers running Company's software, the Customer acknowledges responsibility for communicating with Company prior to installation of non- Company's software service packs, implementation of new releases or versions of non- Company's software, or installation of new non- Company's software products. If applicable, except for emergency replacement of a failing server, the Customer acknowledges responsibility for communicating with Company prior to replacing a server on which Company's software is being used. Company is not responsible for changes if related to or caused by software not provided by Company. If applicable, for workstations running Company's software, the Customer acknowledges responsibility to test new workstation configurations, software service packs, new releases or versions of software, and new software products prior to implementation. 5. Limitations. Company may, in its sole discretion, limit or suspend Customer's access to support, pursuant to this Subscription and Support Agreement, where (1) Customer is in material default under the terms of this Subscription and Support Agreement (non payment is deemed to be a material default), or (2) Customer fails to provide adequately trained staff to administer the Software. Prior to limiting or suspending support, Company will give the Customer 45 days written notice of its intention to do so and actively participate with the Customer to remedy any such default or failure. 6. Term. This Subscription and Support Agreement commences at the earlier of 1) the "go- live" date of the Software or 2) February 1, 2012, and expires one year after its commencement date. Within thirty (30) days prior to its expiration, Company shall send to the Customer an invoice for an annual "Subscription, Support and Maintenance Fee The sending of any such invoice will constitute an irrevocable offer to extend the Subscription and Support Agreement for the period and fees set forth in the invoice, which may be accepted by the Customer in its sole discretion as hereinafter set forth. Termination of the Subscription and Support Agreement prior to its expiration shall not result in the refund of partial service fees. The Customer's payment of an annual Subscription, Support and Maintenance Fee in response to an invoice prior to the expiration date of the Subscription and Support and Agreement, or within forty -five (45) days after the date of Company's invoice, whichever is later, will extend the Subscription, Maintenance and Support Period for the period of one year from its previous expiration date, or for the period set forth in the invoice if different. 7. Adjustments to Terms and Conditions. Company may change the Annual Subscription, Support and Maintenance Fee and the terms and conditions of this Subscription and Support Agreement provided that written notice is given to the Customer thirty (30) days prior to the expiration of the current term. Coplogic DORS Software Subscription, Support and Maintenance Agreement 2 COST 8. Annual Fee. The Customer shall pay Company an Annual License Subscription, Support and Maintenance Fee for which support is being provided (see Schedule B for base Annual Subscription, Support and Maintenance Fee). Annual Subscription, Support and Maintenance Fee for the first (1 year is due upon execution of this agreement and will then reoccur on the anniversary date of the execution of this agreement for each year thereafter. For a period of three (3) years following execution of this Subscription and Support Agreement, the Annual Fee shall not increase by more than 5% of the previous year's Annual Subscription, Support and Maintenance Fee. All requests by the Customer for additional features or functionality that fall outside of Company's ongoing policy of upgrading the Software will be quoted separately. Late Payments. All invoices will be sent at least thirty (30) days prior to their due date. Payments received forty five (45) days after their due date will be assessed a 10% late fee. 9. Taxes. In addition to other amounts payable under this Subscription and Support Agreement, Customer shall pay any and all federal, state, municipal, or other taxes, duties, fees, or withholding currently or subsequently imposed on Customer's use of the Software or the payment of the License Subscription Fee to Company, other than taxes assessed against Company's net income. Such taxes, duties, fees, withholding, or other charges shall be paid by Customer or Customer shall provide the appropriate authority with evidence of exemption from such tax, duty, fee, withholding, or charge. If Company is required to pay any such tax, duty, fee, or charge, or to withhold any amount from monies due to Company from Customer pursuant to this Subscription and Support Agreement, Customer shall promptly reimburse Company any such amounts. 10. On Site Support. The Customer shall reimburse Company at the rate of $2,500.00 per day for each Company employee or contractor required for any On -Site support incurred at the Customer's direct written request and authorization. This rate shall be paid for each day that Company personnel are required to be on the Customer's site. Customer will not pay for Company personnel travel time or travel expenses. In response to written Customer requests for Company to provide on -site routine non emergency support, Company shall produce a written estimate of the time required to provide the requested support and state any requirements, such as the presence of Customer staff or other resources or materials. Any On -Site Support provided by Company shall only be invoiced by Company or paid by Customer if the problem arose due to something other than a defect in the Software. CUSTOMER'S OBLIGATION 11. The Customer Agrees to: (a) Furnish descriptions of problem(s) in the form reasonably requested by Company Support representatives; (b) Assist Company's efforts to reproduce the problem(s) in the applicable operating environment, and (c) Make available qualified, trained staff on -site to carry out Company's instructions and/or provide remote access to system(s) as requested by Company. Coplogic DORS Software Subscription, Support and Maintenance Agreement 3 12. The Customer shall designate a sole Support Contact to provide routine end user support for the Customer personnel concerning the Product. 13. The Customer shall take appropriate steps to educate its end users about the need to contact the Support Contact (rather than Company directly) when support is needed. The Customer shall appropriately publicize the name, telephone number, and/or fax number and /or electronic mail address if applicable, of the Support Contact. 14. Access to Data and System. The Customer agrees to provide Company with data dumps, as requested, remote access to the Software system, and with sufficient test time on the Customer's computer system to duplicate the problem, to certify that the problem is with the Software, and to certify that the problem has been corrected. 15. If applicable, the Customer shall install and maintain for the term of this Subscription and Support Agreement, a reasonable and satisfactory method of direct remote computer access to the Software. The Customer shall pay for the installation and maintenance of such access. If applicable, Company shall use this access service in connection with error correction, software updating and user support only, and only upon prior written or email notice to the Customer, and Customer's acknowledgment of that notice. 16. If applicable, the Customer must upgrade the Software in its entirety to the most recent version within seven business days of the release of any updates or modifications of the Software unless otherwise mutually agreed. If applicable, Company will not be obligated to provide support for release versions that are more than two release versions older than the current version unless specified in this Subscription and Support agreement. If applicable, Company agrees that all release versions will be tested for installation in a computer environment substantially similar to the Customer's and that all releases will be free of material defects that would affect the orderly continuation of Customer's use of the Product. 17. If applicable, the Customer agrees that, subject to and in accordance with the Customer's internal policies and guidelines, it will upgrade the computer operating software, hardware and underlying database engines of the DeskOfficer Online Reporting System software as necessary to meet the changing requirements of the Software as specified by Company as part of a current release of the Software, or as the parties mutually agree. If applicable, the Customer agrees that, subject to and in accordance with the Customer's internal policies and guidelines, it will maintain appropriate licenses for the computer operating software and underlying database engines required of the DeskOfficer Online Reporting System as necessary. If applicable, the parties agree that Company is not obligated to ensure that its new release of the Software is compatible with outdated (exceeding 4 years from date of initial release) hardware, computer operating software or database engines). Coplogic DORS Software Subscription, Support and Maintenance Agreement 4 CONFIDENTIALITY 18. Confidential Information. (a) The parties hereby acknowledge that they may have access to information that is confidential to one another "Confidential Information "Confidential Information" includes, but is not limited to, the licensed products and enhancements, all related source and object codes, Documentation, customer and prospect lists, pricing proposals, financial and other business information, all data and information relating to Customer's operation, and any other information designated as confidential or proprietary information by the disclosing party. "Confidential Information" shall not include any information which (i) becomes part of the public domain through no act or omission of the other party; (ii) is lawfully acquired by the other party from a third party who is not in breach of an obligation of confidentiality; (iii) was in the other party's lawful possession prior to disclosure of such information; (iv) is independently developed by the party without the benefit or use of the Confidential Information; or (v) is required to be disclosed under a court order or a valid subpoena, provided that the recipient of the Confidential Information promptly notifies the disclosing party in order for the disclosing party to have an opportunity to seek an appropriate protective order. The parties agree to maintain the confidentiality of the Confidential Information and to protect as a trade secret any portion of the other party's Confidential Information by preventing any unauthorized copying, use, distribution, installation or transfer of possession of such information. Each party agrees to maintain at least the same procedures regarding the other party's Confidential Information that it maintains with respect to its own Confidential Information. (b) Company acknowledges that the Customer is a governmental agency and may be required to disclose certain information under requests made according to provisions of the Public Records Act. Customer shall give notice to Company of any request for the disclosure of any information set apart and marked "confidential," "proprietary" or "trade secret" by Company. Company shall then have five (5) days from the date it receives such notice to enter into an agreement with Customer providing for the defense of, and complete indemnification and reimbursement for all costs (including plaintiff's attorney's fees) incurred by Customer in any legal action to compel the disclosure of such information under the Public Records Act. Company shall have the sole responsibility for the defense of the actual proprietary or trade secret designation of such information. The parties understand and agree that any failure by Company to respond to the notice provided by Customer and /or to enter into an agreement with Customer, as set forth above, shall constitute a complete waiver by Company of any nondisclosure or confidentiality rights hereunder with respect to such information, and such information shall be disclosed by Customer pursuant to applicable procedures required by the Public Records Act. (c) Both parties acknowledge that any use or disclosure of the other party's Confidential Information in a manner inconsistent with the provisions of this Agreement may cause the non disclosing party irreparable damage for which remedies other than injunctive relief may be inadequate, and both parties agree that the non disclosing party shall be entitled to receive from a court of competent jurisdiction injunctive or other equitable relief to restrain such use or Coplogic DORS Software Subscription, Support and Maintenance Agreement 5 disclosure. The terms and provisions of this section shall survive any termination of this Subscription and Support Agreement. TERMINATION 19. The Customer may terminate this Agreement at any time and for any reason upon thirty (30) days prior notice to Company. In the event of a material default by the Customer under this agreement, Company may terminate this Agreement upon thirty (30) days prior notice to Customer, provided that Customer has been given thirty (30) days notice to cure the default. LIMITATION OF LIABILITY 20. To the extent permitted by law, neither party's liability to the other party in connection with any cause of action, costs or damages relating to this Subscription and Support Agreement shall exceed the annual fee paid in the twelve month period preceding the event giving rise to the claim. Notwithstanding the foregoing, for purposes of the services performed by Company under this Subscription and Support Agreement, Company agrees to fully defend, indemnify and hold harmless Customer, its officers, employees and agents from any damage, loss, liability, costs (including reasonable attorneys fees), claim or cause of action arising out of injury, loss or damage to real property or tangible personal property, or arising from personal injury or death, where such damage, loss, liability, costs, claim or cause of action is caused or incurred in whole or in part as a result of any negligent or wrongful act or omission or willful misconduct of Company, its officers, employees, agents, contractors and assigns. Company's obligation hereunder is contingent upon Customer providing Company prompt written notice of any such claim, action, lawsuit or other proceeding and Customer shall fully cooperate with Company in the defense and all related settlement negotiations. The existence of any insurance policies or coverage's shall not affect the parties' rights and obligations hereunder. GENERAL 21. This Agreement shall be binding upon the successors and assigns of both parties, provided, however that no assignment, delegation or other transfer shall be made by Company without the prior written approval of the Customer, which approval shall not be unreasonably withheld. 22. This Agreement, together with Schedule A and Schedule B, which are incorporated herein by reference, is the sole and entire Agreement between the parties. This Agreement supersedes all prior understandings, agreements and documentation relating to such subject matter, except for the concurrently executed Setup and License Agreement. No modification or amendment of this Agreement will be valid or binding unless reduced to writing and duly executed by the party or parties to be bound. 23. Each party shall be excused from delays in performing or from its failure to perform hereunder to the extent that such delays or failures result from causes beyond the reasonable control of such Coplogic DORS Software Subscription, Support and Maintenance Agreement 6 party; provided that, in order to be excused from delay or failure to perform, such party must act diligently to remedy the cause or effect of such delay or failure to the extent the party is able. In the event of such delays, the timetables shall be extended by as many calendar days as the delay caused by forces outside the reasonable control of the parties. 24. This Subscription and Support Agreement may be executed in separate counterparts, each of which so executed and delivered shall constitute an original, but all such counterparts shall together constitute one and the same instrument. Any such counterpart may comprise one or more duplicates or duplicate signature pages, any of which may be executed by less than all of the parties provided that each party executes at least one such duplicate or duplicate signature page. The parties stipulate that a photocopy of an executed original will be admissible in evidence for all purposes in any proceeding as between the parties. 25. Any provision of this Subscription and Support Agreement or part thereof found to be illegal or unenforceable shall be deemed severed, and the balance of the Agreement shall remain in full force and effect. 26. This Subscription and Support Agreement shall be governed and construed in accordance with the laws of the State of Washington. Venue of any action brought with regard to this Subscription and Support Agreement shall be in Clallam County, Washington. The undersigned represent and warrant that they are authorized as representatives of the party on whose behalf they are signing to sign this Agreement and to bind their respective party thereto. Coplogic Inc. City of Port Angeles, a Municipal Corporation (S nature) (Sigriature) James Lee Chief Operating Officer dcz to 2,12_ (Date) (Typed or Print'4i Name and Title) QI 131 1Z Z. (Date) Coplogic DORS Software Subscription, Support and Maintenance Agreement 7 SCHEDULE A Company Hours of Support and Maintenance Service are as follows: Regular Hours of Service (Pacific Time): 0900 to 1700 hours, Monday to Friday (excluding Holidays observed by the U.S. Federal Govt.) E -mail received by: Company staff at sunoort@cooloaic.com Incident/Request for Service Priority. All support and maintenance incidents/ requests for service will be prioritized on the following basis: Priority Definition Priority Dur Reg Hours of Service A 2 hours B (2) business days of Company receipt of verbal, written or electronic notice thereof and to correct the Priority B Issue by the Customer's reasonably requested date. If the Priority B Issue is not corrected within 2 business days of the original notification Company will provide the Customer with reports of its efforts to correct the Priority B Issue as requested by Customer. C As time permits basis or inclusion in the next scheduled update to the Licensed Product. Coplogic DORS Software Subscription, Support and Maintenance Agreement After Hours Service (Pacific Time): 1701 to 0859 hours, Monday to Friday Saturdays Sundays Holidays E -mail received by: Company staff at support@cooloaic.com A Work is stopped to the point that critical business activities cannot continue. e.g. Loss of use of major features, file system corruption, data loss, security issue, system outage. B Issues or features of the product are preventing normal operations. C Non- critical features, for which a convenient or reasonable work around exists, or a feature which functions unexpectedly. Slight inconvenience. Response Time. The following table outlines the response times for each priority: Response Time During After Hours of Service 6 hours from time of notifying the vendor contact(s) through voice mail or e-mail Not available Not available 8 1. Incident/Reauest for Service Reporting Procedure All problems, queries or requests for assistance must be made to Company at support@coplogic.com, during regular business hours of service. Customer must be prepared to leave a contact name, phone number, workstations affected, screenshots, a description of the problem/service and the impact. Company's resources will work with the Customer to diagnose the problem. After investigating the issue, Company and the Customer will jointly categorize the problem into: Type of Problem Customer Server Hardware Problem Desktop Hardware Problem Customer Network Communication Isolated Workstation Issue Customer Database Performance /storage Application or software related Ownership Company Customer Customer (if applicable) Customer Customer (if applicable) Customer Company Company will deal with problem/incident according to the priority assigned. In the case that a problem cannot be readily resolved, Company will attempt to identify a work around. As soon as Company corrects an Issue, Company shall notify the Customer that the Issue has been corrected by sending an electronic mail. Coplogic DORS Software Subscription, Support and Maintenance Agreement 9 SCHEDULE B Coplogic DeskOfficer Online Reporting System version 6.2.0.3 Base Annual Subscription, Support and Maintenance Fee: $3,500 (for Year 1) On -site Support: $2,500 per day per Company personnel (includes travel time and expenses) Coplogic DORS Software Subscription, Support and Maintenance Agreement 10