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PROFESSIONAL SERVICES AND SOFTWARE LICENSE AND SUPPORT AGREEMENTS PROFESSIONAL SERVICES AGREEMENT Between Synergen, Inc. A California Corporation located at 2121 North California Blvd., Suite 800, Walnut Creek, CA 94596 And City of Clearwater 100 S. Myrtle Ave., Clearwater, FL 33756 This Professionsl Services Agreement ("Agreement") is entered into between Synergen, Inc. ("Synergen") and the City of Clearwater ("Customer") as of the date last signed below (the "Effective Date") in support of the City of Clearwater Asset Management project. 1. Scope of Agreement During the term of this Agreement, Synergen agrees to provide to Customer the Professional Services described below in conjunction with implementation of the Synergen Series software ("Software") licensed by Customer under Synergen's Software License Agreement. If Customer issues a purchase order for any specific services, the terms of this Agreement sha1lgovem Synergen' s performance of such services, and will supersede the terms of Customer's purchase orders. Changes affecting scope, cost and other activities shall be implemented by a "Change Order", which shall be mutually agreed to by the parties. The Synergen Scope of Work is defined in Exhibit A. 2. Professionsl Services Synetgen, upon receipt of a written request from Customer, will provide Customer with Professional Services in accordance with the attached Scope of Work and Pricing (Exhibit A). If requested by Customer, Synergen can provide additional Professional Services within this Agreement and in accordance with the attached Synergen labor rates (Exhibit B). Synergen will expeditiously perform all Professional Services in accordance with the requirements of this Agreement and Synergen shall deliver to Customer all such Deliverables as specified in the Scope of Work. 3. Payment Terms A. Fees for Professional Services shall be invoiced on a time and material basis according to Synergen's Professional Services Rates and invoiced within 30 days after completion of the Professional Services. All other applicable fees shall be payable when invoiced. Synergen reserves the right to annually adjust Professional Services labor rates and will notify Customer thirty (30) days prior to the implementation of any change to alter its Professional Services fees. Each invoice will be in such detail and supported by such receipts, documentation and other information as Customer may reasonably request to verify the invoice. B. In addition, Customer agrees to reimburse Synergen for all reasonable travel, lodging and related subsistence expenses that are incurred by Synergen personnel in performing Professional Services for Customer on Customer requested travel plus 8% G&A. All expense reimbursement hereunder will be subject to Customer's standard expense reimbursement policies and procedures. C. Payment shall be in United States currency. All invoices shall be deemed overdue if they remain unpaid thirty (30) days after they become payable. In the event Customer fails to pay any amount when due, Customer agrees to pay interest on the unpaid amount at a rate equal to one and one-half percent (1 Yz%) per month or the highest rate allowed by law, whichever is less, plus all collection costs including attomeys' fees. Any charges contested by Customer in writing, which is submitted thirty (30) days after they become payable, will not be subject to the above stated interest charge. If Customer's procedures require that an invoice be submitted against a purchase order before payment can be made, Customer will be responsible for issuing such purchase order at the time of order. PSA-OO l.Clearwater <0 Synergen, Inc. 2003 -1- Synergen, Inc. 00- 35~-O() (I) . ' D. Taxes. "Taxes" means all federal, state, local and other taxes, including sales, use and property taxes, related to this Agreement, Customer's use of the Software, or any services provided by Synergen to Customer related to the Software. Customer shall pay all applicable Taxes due for services provided by Synergen under this Agreement. 4. Additional Rights and Obligations of the Parties A. Contact. Each party shall notify the other party of its designated primary contact (Contact). To the maximum extent practicable, communications between the parties will be through the parties' Contacts. B. Facility and Personnel Access. Customer agrees to grant Synergen access to Customer's facilities and personnel concemed with the operation ofthe Software as and to the extent reasonably determined by Customer to enable Synergen to provide services. Synergen will ensure that all employees, contractors and other persons providing any Professional Services on any premises of Customer comply with all employee rules of conduct of Customer, including but not necessarily limited to all security and safety procedures and policies. C. Compliance with Laws. Synergen will comply with all local, state and federal laws, ordinances, regulations and orders with respect to its performance of the Professional Services. Synergen will provide Customer with such documents and other support materials as Customer may reasonably request to evidence Synergen's continuing compliance with the provisions in this Section. D. Confidential Information The parties acknowledge that each party may acquire information and material that is the other party's confidential, proprietary or trade secret information. As used herein, "Confidential Information" includes, but is not limited to, all confidential technical and business information relating to the Synergen Series Software, the Professional Services, research and development, implementation processes, costs, profit or margin information, marketing, production and future business plans of either party. The parties' respective obligations with respect to Confidential Information also extend to any third party's proprietary or confidential information disclosed to such party by the other party in the course of performance of this Agreement. Confidential Information must be identified in writing at the time of disclosure by an appropriate legend, marking, stamp or other positive written identification on the face thereof to be proprietary to the disclosing party and for information transmitted orally or audibly must be confrrmed as Confidential Information by a written summary submitted by the disclosing party to the receiving party within thirty days after oral or audible transmission thereof. Synergen acknowledges that customer is a Government entity and as such subject to public record laws and various Sunshine Laws. E. Nondisclosure. Each party agrees to take all steps reasonably necessary to hold in trust and confidence the other party's Confidential Information. Each party agrees to hold such Confidential Information in strict confidence, not to disclose it to third parties or to use it in any way, commercially or otherwise, other than as otherwise permitted under this Agreement. Each party will limit the disclosure of the Confidential Information to employees, directly related subcontractors with a need to know who: (i) have been advised of the confidential nature thereof; and (ii) have acknowledged the express obligation to maintain such confidentiality. F. Exceptions. Notwithstanding the other provisions of this Agreement, information and material received by one party fromthe other party will not be considered to be Confidential Information if: (i) it has been published or is otherwise readily available to the public other than by a breach of this Agreement; (ii) it has been rightfully received by the receiving party from a third party without confidential limitations; (iii) it has been independently developed by the receiving party by personnel having no access to the Confidential Infonnation; or (iv) it was known to the receiving party prior to its first receipt from the disclosing party. G. Warranty. Synergen warrants that all Professional Services provided hereunder will be perfonned in a professional and workmanlike manner. Additionally, Synergen warrants for 60 days following the Phase 1 Go Live that the custom developed Interfaces will perfonn in accordance with the specifications.. H. Indemnification. Synergen will indemnify, hold hannless and defend Customer and its directors, officers, employees and agents from and against all claims, damages, losses and expenses (including attorneys' fees) arising out of or in connection with (a) any negligent acts or omissions or willful misconduct ofSynergen in the perfonnance of the Professional Services, and (b) any infringement or misappropriation of any U.S. patent, copyright, trade secret, trademark or other intellectual property right by work product or other materials created or fumished by Synergen under PSA-OO I.Clearwater @ Synergen, Inc. 2003 -2- Synergen, Inc. ! ' this Agreement. The foregoing indemnities shall not apply unless: (a) Synergen is notified promptly in writing by Customer of any notice of such claim and is given reasonable assistance from Customer in defending such claims, at Synergen's expense, and (b) should any Synergen product or the provision of any Professional Service become, the subject of any such claim, Customer shall permit Synergen either to procure for Customer the right to continue using such Synergen software or receive the benefit of such Professional Service with software or services that are noninfringing, or grant Customer credit for such software or Professional Services, and in the case of software, accept its return and credit Customer.. 5. Limitation of Liability EXCEPT FOR LIABILITY ARISING OUT OF ANY BREACH OF CONFIDENTIALITY, NEITHER PARTY SHALL BE LIABLE TO THE OTHER FOR LOST PROFITS OR INDIRECT, SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES ARISING OUT OF THIS AGREEMENT, EVEN IF THE PARTY HAS BEEN NOTIFIED OF THE POSSIBILITY OF SUCH DAMAGES. UNDER NO CIRCUMSTANCES WILL SYNERGEN'S LIABILITY TO CUSTOMER EXCEED THE AMOUNTS PAID BY CUSTOMER TO SYNERGEN UNDER THIS AGREEMENT. 6. Term and Termination A. Term: This agreement, unless terminated in accordance with subparagraph 6(b), shall have an initial term of one year. Thereafter, this agreement will automatically renew for successive one-year terms unless one party gives the other party written notice of its intent not to renew the agreement at least thirty days prior to the expiration of the then-current agreement. B. Termination: Synergen shall have the right to tenninate this Agreement and all services provided pursuant to this Agreement (i) upon termination of the Software License Agreement by either party for any reason, and (ii) if Customer or any of its employees or agents violates any provision of this Agreement and Customer fails to cure such violation within thirty (30) days after receipt of written notice from Synergen. Customer shall have the right to terminate this Agreement and all services provided pursuant to this Agreement if Synergen or any of its employees or agents violates any provision of this Agreement, SOW, change orders, or associated agreements and Synergen fails to cure such violation within thirty (30) days after receipt of written notice from Customer. Upon termination, the Customer shall pay Synergen for all amounts due for service rendered up to the date of termination. 7. General Provisions Independent Contractor: Synergen will at all times be an independent contractor, and not an employee or agent, of Customer in connection with the performance of the Professional Services. Synergen will not enter into any contract, agreement or other commitment, or incur any obligation or liability, in the name or otherwise on behalf of Customer. This Agreement will not be construed to create a partnership, joint venture or employment relationship between Synergen and Customer. A. Notices. All notices under this Agreement are to be sent by registered mail or via facsimile to the address set forth in the first paragraph of this Agreement or to any other address as the party may designate. B. Assignment. This Agreement may not be assigned, or transferred by either party without the prior written consent of the other party, which consent will not be unreasonably withheld or delayed. This Agreement shall be binding upon and inure to the benefit of the parties hereto and their respective heirs, successors and representatives. Notwithstanding the foregoing, either party may assign all of its rights and obligations under this Agreement to a subsidiary or affiliate of the party that succeeds to all or substantially all of its business or assets relating to this Agreement whether by sale, merger, operation of law or otherwise. C. Complete Agreement; Amendment. This Agreement and Exhibits set forth the entire understanding of the parties with respect to the subject matter of this Agreement. Any amendment to this Agreement must be in writing and signed by both parties. D. Waiver. The waiver or failure of either party to exercise in any respect any right provided for in this Agreement shall not be deemed a waiver of any further right under this Agreement. PSA-OOl.Clearwater ~ Synergen, Inc. 2003 -3- Synergen, Inc. . ' E. Severability. If any provision of this Agreement is invalid, illegal or unenforceable under any applicable statute or rule oflaw, it is to that extent to be deemed omitted. The remainder of the Agreement shall be valid and enforceable to the maximum extent possible. F. Governing Law. This Agreement is to be construed in accordance with the laws ofthe State of Florida without regard to its conflict of laws principles. PSA-OOI.Clearwater ~ Synergen, Inc. 2003 -4- Synergen, Inc. IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed by their duly authorized representatives. SYNERGEN, INC. 2121 North California Blvd. Suite 800 Walnut Creek, CA 94596 Signature ~~.k)~ Printed Name _K,~j R . frl. ~c--JJ Title r re.s .J.w- .. Csa Date 61z.,y0.3 CITY OF CLEARWATER, FLORIDA 112 South Osceola Avenue Clearwater, FL 33756 Date Countersigned: Approved as to form: PSA-OO l.Clearwater o Synergen, Inc. 2003 By: ~~-rr William B. Home II City Manager Attest: 4tt/~ yn . a E. Goude City Clerk -5- Synergen, Inc. Exhibit A Phase 1 Scope of Work and Pricing The Synergen Implementation Approach is a sound, logical and very successful method of seamlessly integrating use of Synergen into City of Clearwater's everyday operations. A key ingredient to any successful implementation is the establishment of a project partnership resulting in the joint ownership and application of the methodology by both the customer and Synergen. We have found that with a customer/supplier team in place whose members are jointly trained in and committed to using the methods outlined here, an orderly and timely transition to Synergen can be reliably achieved. The Synergen Implementation Scope of Work will consist of the following components: . Implementation Planning and Coordination . Software Installation . Configuration Support . Interface Development Services . Data Conversion & Migration Support . Training Support . System Rollout Support The proposed implementation strategy for the City of Clearwater (the City) assumes a phased system rollout of asset management, maintenance, inventory, customer service and fleet management for the City. Synergen will partner with the City to provide implementation services that will ensure project success. In Phase 1, Synergen will be rolled out to Public Utilities (Water Division (including Reclaimed Water), Water Pollution Control and Wastewater Collection), Public Services (Stormwater) and Engineering (GIS). Phase 2 includes rollout to Public Services (Roads, Streets and Forestry), Solid Waste/General Services (Fleet, BuildingslMaintenance), Clearwater Gas and Customer Service. The proposed Synergen support for Phase 1 only is detailed below. Implementation Planning and Coordination Synergen will provide Project Management services including project planning, Synergen resource coordination and task allocation, project reporting, coordination of deliverables, and development of the Project Implementation Plan. Synergen proposes project management services throughout Phases 1. These services will include the facilitation of a Project Kickoff Meeting and Site Visits as necessary at any appropriate City facility. The purpose of the kickoff meeting and site visit is to: . Introduce the key participants in the project . Establish the project "Core Team" . Confirm Management Support and Directions . Valiclate any schedule and resource constraints . Validate project roles and responsibilities . Establish commonly agreed-upon expectations for deliverables . Collect input for the detailed plan for implementation . Discuss building and understanding of the Synergen Implementation Approach . Establish the project reporting guidelines The project "Core Team" should consist of the City's Project Manager, System Administrator(s), and several business area experts from the participating deparbnents. Representation from functional areas within the deparbnents such as accounting, stores, maintenance planning, work order processing, customer service, fleet maintenance and inventory management should be included on the Core Team. The Core Team should include representatives of organizations that are participating in both Phase 1 and Phase 2 implementations. In conjunction with the Project Kickoff, Synergen will conduct a Site Visit of appropriate City facilities. The purpose of the visit is for Synergen to learn City-specific terminologies, to become familiar with the City's organization, to understand how business is currently conducted, to gain knowledge about current asset hierarchy information, to determine potential data sources, and to gain a general understanding of the City's training and rollout support needs. PSA-OOI.Clearwater <<:l Synergen, Inc. 2003 -6- Synergen, Inc. Following the Project Kickoff, Synergen will develop a detailed implementation plan for all components of the City's Asset Management Project. This plan will include work activity descriptions, deliverable defmitions, project cost estimates and a detailed schedule. This plan will evolve during the Project lifecycle in order to portray the implementation accurately. DELIVERABLE: Synergen Project Implementation Plan and Schedule Software Installation As soon as possible after the notice to proceed, Synergen will install the latest General Release of the Synergen Series and Oracle at the appropriate City facility. This installation will provide the project team with the opportunity to view the functionality of the software and to prepare for subsequent implementation activities. This task includes pre-installation preparations to ensure a successful install, installation of Synergen and Oracle software on City servers and an installation report documenting the install. It is assumed that the City will provide adequate servers and the required Oracle software to support the installation. During the installation process, Synergen will transfer technical knowledge on the installation to the appointed City project DBA and System Administrator. DELIVERABLE: Pre- Installation Checklist DELIVERABLE: Synergen and Oracle Installed DELIVERABLE: Installation Report Configuration Support Synergen will perform the functions necessary to assist the City's project team in the transition from its existing information systems and business processes to Synergen. This includes facilitating the City's Core Team in a series of workshops to aid in the understanding of configuration options available within the Synergen application, and the association betWeen the City's business workflows and the enabling Synergen product. It is assumed that all appropriate City entities will be represented on the Core Team and that a single configuration will apply City-wide. Synergen will also provide hands-on instruction to the City's Core Team in the use of the application during these workshops, and provide assistance through practical examples to help the Core Team make informed configuration decisions. Time will be allocated in the schedule between workshop weeks for the City's Core Team to evaluate configuration options (as needed) and collect/generate data and code values for entry into the database. This time between workshops can also be used by the City to complete documentation of business process/workflows if these do not already exist. Synergen will conduct a Core Team Orientation session as the initial workshop. Objectives of this hands-on session include familiarizing the Core Team with how to navigate within Synergen, system integration capabilities, functional knowledge of specific Synergen modules, and an overall understanding of the configuration process. An additional three Configuration Workshops are proposed for Resource, Assets & Administration; Maintenance; and Inventory subsystems. Synergen will facilitate these workshops for the City's Core Team. We have assumed that the City's Core Team will enter all configuration data with assistance as needed from Synergen. TIrrough this process, the Core Team becomes very familiar with the application's functionality and configurability. Synergen will provide a master list of configurable items to be used to manage the process. As system configuration progresses, the City will be requested to develop business workflow scenarios that will be used to validate that the configured software will meet the City's business needs. Synergen will assist in the development of these workflows by providing experience and samples from previous Synergen implementations. Additionally, Synergen will support the testing of these workflows during a one-week Workflow Scenario Workshop that will enable a comprehensive business-oriented test of the application and validation of the software configuration. Following the Workflow Scenario workshop, the City will conduct several weeks of additional system testing. DELIVERABLE: Synergen Configurable Items Report DELIVERABLE: Synergen Responsibility Matrix PSA-OOl.Clearwater o Synergen, Inc. 2003 -7- Synergen, Inc. DELIVERABLE: Synergen Configuration Guide Interface Development Services The City has identified the need for several interfaces between Synergen and external systems which will be implemented in two phases. For Phase I, Synergen has assumed interfaces to PeopleSoft HR and Payroll; Cayenta Utility Management System for Billing and Service Order; and Citech and Dataflow for SCADA. Synergen utilizes a set of standard Interface Utilities as a starting point for interfacing Synergen with third party applications. Each utility consists of an interface staging table and a PLlSQL stored procedure to manage data transport through this interface table. The development of interfaces requires the City and Synergen to partner closely to enable a successful implementation. Synergen will be responsible for importing and extracting data into and out of Synergen, and the City will be responsible for importing and extracting data into and out of the external applications. The data transport mechanism between applications can be jointly developed and supported. The first activity in the development process for these interfaces is to validate the business needs for the interface and to determine the functional requirements. The functional requirements will be documented by Synergen and submitted for approval by the City's project team. Synergen will then develop detailed technical specifications for the interfaces for review by the City. Synergen will code and unit test the interfaces, and when satisfied they are working properly, Synergen will install and test them in the City's technical environment. DELIVERABLE: Interface Functional Requirements DELIVERABLE: Interface Technical Specifications DELIVERABLE: Interfaces Developed and Installed GIS Integration Services (To be provided by the City) Data Conversion and Migration Support The data sources for migration in Phase lto Synergen will include tables from the several systems, including asset and maintenance data (JobCAL MS-Access files), leak and complaints data (MS-Access) video descriptive information (DataCap4) and inventory data (Ross). Synergen will develop a Data Migration Plan, which defmes the set of data sources and the associated migration/conversion requirements. The City will have responsibility for identifying and/or collecting data to be migrated and scrubbing this data. Synergen will map this data to the appropriate Oracle tables in Synergen and the City will develop data loading scripts to migrate the data from the collection database to the Synergen Oracle database. The City will test the set of data loading scripts developed (migration, conversion and valida.tion) to ensure they perform in accordance with the mapping. The City will be responsible for reviewing the data migration plan, reviewing the detailed data mapping and, later in the project, reviewing the migrated data during testing to ensure that the scripts function as expected. Once the City is satisfied that the scripts function as expected, the scripts are set aside until needed for fmal migration before Rollout. The City will run the scripts just prior to the System Rollout. DELIVERABLE: Data Migration Plan and Mapping Training Support Effective functional and technical training is extremely critical to the success of any software implementation project. The Synergen implementation methodology takes this into account by addressing a combination of Technical and End User training to support this key activity. The first step in the training process is to develop an Education Plan. This activity will be the responsibility of the City. The task will require the City's Core Team and target user community to jointly determine course requirements, course content, course durations, required attendees for each course, training sequence and training schedule using a standard approach. The City will then document all of this information in the project Education Plan. PSA-OO I.Clearwater ~ Synergen, Inc. 2003 -8- Synergen, Inc. , , The second step in the Synergen training program is Technical Training. Synergen will provide two days of System Administration training at a City of Clearwater training facility for a maximum of three students. This training will enable the City to provide ongoing configuration support to the user community after go-live. The final step in the Synergen training program is End User functional training. Synergen will provide Train the Trainer (T3) training for a selected team of City trainers at a City of Clearwater training facility. This cost-effective training approach is designed to train City trainers how to teach Synergen end users. These services will consist of detailed application training to the appropriate T3 instructors covering the Synergen Maintenance, Inventory, Resource and Administration modules using the City-provided work processes as a training basis. DELIVERABLE: Train-the- Trainer (T3) End User Functional Training DELIVERABLE: System Administration Technical Training System Rollout Support When Synergen is configured, data is loaded, workflows and interfaces are tested and training is completed, the project will be ready for cutover to production for end users. Synergen will support the system rollout by verifying the production environment and fmal system configuration. Synergen will provide resources to support these pre-"Go Live" activities as well as providing field coaching during the critical days afterwards when end users fITSt start using the new business application and processes. DELIVERABLE: Go-Live Checklist Pricing Synergen will provide the professional services noted above in the Scope of Work to ensure a successful implementation at the City of Clearwater. Table 1 below represents the pricing, level of effort and estimated expenses anticipated for the implementation support services provided by Synergen. This estimate does not provide for City of Clearwater required/provided resources (such as Core Team participation, IS resources, etc.). Synergen requests that milestone payments for services be made upon completion of the tasks and/or delivery of the deliverables for each item in a project phase. PSA-OOl.Clearwater @ Synergen, Inc. 2003 -9- Synergen, Inc. 1. Implementation Planning and Coordination $64,534 218 Project Management Project Kick-off Implementation Plan 2. Software Installation $11,088 56 Synergen and Oracle Installation 3. Configuration Support $128,304 648 Core Team Orientation / Training Three Configuration Workshops & Support One Workflow Scenario Workshop 4. Interface Development Services $80,000 404 5. GIS Integration Services (To be provided by the City) $0 0 6. Data Conversion & Migration Support $19,800 100 Data Migration Plan and Mapping Only 7. Training Support $39,600 200 System Administration Technical Training Train-the- Trainer End User Training 7. System Rollout Support $26,928 136 Total (Labor Only) $370,254 1,762 Total Expenses & G & A & reimbursable and other direct costs for $65,750 Phase one "Go Live" not to exceed PSA-OO LClearwater @ Synergen, Inc. 2003 -10- Synergen, Inc. , " Exhibit B Synergen 2003 Professional Services Rates Synergen provides a comprehensive set of professional services to Customer to optimize the implementation of the Synergen Series software. Our experienced staff can provide both supplemental support or turn key solutions to maximize the products' benefit in the shortest possible timeframe. Our Professional Services provide support for the entire project, including: . Project Management and Planning . Software Installation . Software Configuration . Data Migration and Conversion Assistance . System Interface Assistance . Technical Training . End User Training . Production Rollout Support Category Description Hourly Rate $US 1. Corporate Management $ 331 2. Senior Project Manager, Department Manager 318 3. Project Manager, Senior Technical Consultant, Senior Technical Analyst 244 4. Interactive Education Developer, Senior Business Analyst, Senior Education 204 Specialist, Senior Network Analyst, Senior Quality Assurance Specialist; Senior Software Engineer, Senior Systems Analyst 5. Business Analyst, QAffesting Specialist 116 6. CUSTOMER Support Specialist, Software Engineer, Technical Writer 157 7. Administration 94 REIMBURSABLE EXPENSES AND OTHER DIRECT COSTS Description Price Travel, Subsistence, Communications Cost + 15% G&A State and Local Sales, Use Taxes Cost Subcontracts Cost + 20% G&A Other Direct Costs Cost + 15% G&A Total Expenses for Phase one not to exceed $65,750 PSA-OO I.Clearwater <0 Synergen, Inc. 2003 -11- Synergen, Inc. " SOFfW ARE LICENSE AND SUPPORT AGREEMENTS SOFfW ARE LICENSE AGREEMENT This Agreement governs the grant of a Synergen Series™ software license by Synergen, Inc. (Synergen), a California Corporation, ("Licensor"), to the noted "Licensee" in accordance with the terms of use of the "software" identified below. Software included under the terms of this Agreement is identified below. The Synergen SeriesTM is a proprietary product ofSynergen. Synergen retains ownership of any modifications made to the baseline product. 1. License - Licensee is granted a non-exclusive, non-trans- ferable Concurrent User, Site, Department, or Enterprise license during the term of this Agreement, to use the software, subject to the limitations contained in this Agreement. Licensee agrees to pay quoted prices, and adhere to the payment terms described in Exhibit A (which is attached). Licensee shall have the responsibility to obtain all appropriate underlying software licenses. 2. Term - The right of Licensee to use the software shall begin upon the date of delivery to Licensee's site. A warranty period shall also begin upon delivery of the software. Such right to use shall be void if Licensee fails to conform to the terms of this Agreement. This License shall be a perpetual license unless terminated by either party in accordance with the provisions of this Agreement. 3. Delivery, Risk of Loss, Nonconformance - Delivery and packaging shall be by normal commercial means then in use by Licensor. Risk of loss or delay shall pass F.O.B. Licensee's facility. Delivery of any non-conforming software shall not be deemed a breach of any Agreement between the parties and Licensor shall be provided notice and an opportunity to cure the non-conformity . 4. Use Restrictions - the following use restrictions are applicable depending on the type of license: - Concurrent User license: The software provided under this Agreement is for the sole use of Licensee for the specified number of concurrent users and supporting only workstations operated by Licensee and only for the conduct of its own internal business. - Site or Department license: The software provided under this Agreement is for the sole use of Licensee at a named location on a single database server for a single site or department and supporting only workstations operated by Licensee and only for the conduct of its own internal business. - Enterprise license: The software provided under this Agree- ment is for the sole use of Licensee at the facilities operated within the Enterprise at the time the agreement is executed by Licensee and supporting only workstations operated by Licensee and only for the conduct of its own internal business. There shall be no assignment of the software to, or use of the software by, a parent, affiliate, subsidiary company, separate division, joint venture or partnership, except as agreed to in writing by the parties. Licensee agrees not to sell the use of the software as a service or as a service bureau. All software supplied under this License shall be kept in a secure place, under access and use restrictions satisfactory to Licensor and not less strict than those applied to Licensee's most valuable and proprietary software. To assist Licensor in the protection of its proprietary rights, Licensee shall permit representatives of Licensor to inspect at all reasonable times any location at which the supplied software is being used or kept, or Licensor's licensed software itself. 5. Duplication - No part of the software may be reproduced or copied by any means, nor transmitted, nor disclosed, nor trans- lated into machine language, without the express written permission of Licensor. 6. Archive - Licensee may make backup (archive) copies of that portion of the software that is provided on machine- readable media, as reasonably required to ensure the integrity of the software and database, provided that all copies are under the control of Licensee. Any such copies shall be the sole and exclusive property of Licensor and subject to the terms of this Agreement. 7. Title - Licensee shall maintain each item of software to which Licensor retains title and proprietary rights free and clear of all claims, liens and encumbrances except this License. Licensee shall indemnify Licensor for any act of Licensee, voluntary or involuntary, purporting to create a claim, lien, or encumbrance on the software. 8. Retention and Safeguard of Proprietary Rights ..,. The software is subject to the proprietary rights of Licensor. It embodies trade secrets and other proprietary information belonging to Licensor. Disclosure to third parties of any portion of the software shall not be made without the prior written con- sent of Licensor. Licensee's consultants are "third parties" as used herein. The location of all copies of the software will be reported to Licensor at Licensor's request. Licensee agrees that copying or unauthorized disclosure will cause great damage to Licensor's business, and that this damage is far greater than the value of the copies involved. Licensee agrees to not create or attempt to create, and to not permit or assist others to create, the source code or source program and/or object code, by means of duplication, the making of a derivative work, by reverse engineering or by any other means, of software provided under this Agreement. All software designs, data, materials, and all copyrights, patents, and any other proprietary rights, arising in connection with this Agreement and the software supplied here- under, whether by licensee, modification, enhancement or SWL-005M.SWS-008.Clearwater <<:l Synergen, Inc. 2003 -1- Synergen, Inc. '0, customization, regardless of by whom any item or right is created, shall be the sole and exclusive property of Licensor. 9. Modification or Enhancement - Licensor shall retain title to all modifications or enhancements to software which are made with the assistance of Licensor, and the use by Licensee shall be under the same terms as herein stated. The modified software and the source code so modified shall nonetheless remain subject to all terms of this Agreement with respect to software. Any modification shall not create in Licensee any right of ownership, as modified or not, in the software licensed under this Agreement. 10. Warranty - Synergen warrants that the software will substantially conform to the specifications contained in the documentation for sixty (60) days following delivery (the "Warranty Period"). In addition, a Software Support Agreement must be established between the parties at the time of software delivery to enable the start of the warranty period. With this Software Support Agreement in place, Licensor will design, code, verify, document and deliver promptly any amendments or altemtions to the software that may be required to correct errors present at the time of delivery of the system and which significantly affect performance in accordance with the specifi- cations and documentation provided by Licensor. Error is defined as a program incompatibility that renders the software dysfunctional. for its intended purpose This warranty is contingent upon Licensee advising Licensor in writing of such errors and the procedures for replication of the errors, within the warranty period as defined herein. Where applicable, Licensee shall provide the computer resources necessary and shall assist and cooperate in all respects to correct such errors. Licensee shall provide Licensor with the capability to access the software by remote means at reasonable times as requested. Repair, amendment, or alteration extends the warranty period only as to the correction itself. This warranty shall be void if Licensee modifies the software in any way. Both parties agree that computer software may be subject to discrepancies and errors caused by conditions that are within the user's control; therefore, Licensor does not warrant that the systems will operate uninterrupted or error-free. Licensee shall inform Licensor in writing of any modifications made to the software. Corrections for difficulties or defects traceable to Licensee's errors or system changes will be billed at standard Licensor time and materials rates. The rights and remedies granted to Licensee under this clause (Warranty) constitute Licensee's sole and exclusive remedy against Licensor, its officers, partners, agents, and employees for breach of warranty, express or implied, or for any default or damage whatsoever relating to the condition of the product or Licensor's duties to eliminate any software errors. Licensor is not responsible for the use to which Licensee puts the software. Licensee agrees to indemnify and hold harmless Licensor with respect to any and all damage, loss and injury, including but not limited to direct, indirect, special, reliance, or consequential damages, whether suffered by Licensee or by any third party, and which shall arise in whole or in part from use by Licensee of the software licensed herein. THE ABOVE IS A LIMITED WARRANTY AND THE ONLY WARRANTY MADE BY LICENSOR. ANY AND ALL SWL-005M.SWS-008.Clearwater -2- @ Synergen, Inc. 2003 WARRANTIES FOR MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE ARE EXPRESSLY EX- CLUDED. LICENSEE AGREES LICENSOR SHALL NOT BE LIABLE FOR ANY CONSEQUENTIAL DAMAGES EVEN IF LICENSOR HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. Licensee is responsible for creating all data backup. Licensor is not responsible for loss of data, or damages of any kind relating to software downtime. 11. Remedies - If Licensee attempts to use, copy, license or convey the software supplied by Licensor hereunder, in a manner contrary to the terms of this Agreement or in compe- tition with Licensor or in derogation of Licensor's proprietary rights, whether these rights are explicitly herein stated, deter- mined by law, or otherwise, Licensor shall have, in addition to any other remedies available to it, the right to injunctive relief enjoining such action. Licensee hereby acknowledges that other remedies are inadequate, and that the goodwill of Licensor's business is created in part by the proprietary rights held in its software. 12. Termination - Licensor may terminate this License Agreement by giving notice to Licensee: (a) if Licensee fails to perform or comply with this License Agreement or, any pro- visions thereof, including failure to promptly pay any amount due; (b) if Licensor has good commercial reasons to anticipate a breach of the Agreement; (c) If Licensor has good commercial reasons to believe Licensee is or may become insolvent The rights and remedies of Licensor provided in this clause shall not be exclusive and are in addition to any other rights and remedies provided by law or this Agreement !fthis License Agreement is terminated, Licensee shall return all full or partial copies of the software in Licensee's possession or under its control to Licensor within ten (10) days following the teni1ination date. Failing to do so, Licensee agrees that Licensor shall have the right to repossess such items without notice and without judicial process, and without liability on the part of LicensOr. Licensee hereby waives any and all damages of whatever kindorcharac- ter occasioned by such retakingAt the termination of this Li- cense Agreement, Licensee will be deemed to have assigned, transferred, and conveyed back to Licensor all rights, equities, goodwill, titles, or other rights in and to the software, as Licensor delivered it to Licensee. Termination of this License Agreement as a result of Licensee's default shall result in acceleration of Licensee's obligation to pay for the work performed to the date of termination at the Licensor's then current standard time and materials mtes, plus reasonable expenses for the demobilization of the project. 13. Survivability of Obligations - With respect to all obliga- tions of Licensee to retain in confidence proprietary information of Licensor, whether such obligations have been created by this Agreement or by operation of law, such obligations shall survive the dissolution, cancellation, rescission, or termination of this Agreement for any reason. 14. Precedence of Documents Controlling Obligations - In the event of any conflict between the terms and conditions of a Synergen, Inc. purchase order or contract and the terms and conditions of this License Agreement, the parties agree that the terms and condi- tions of this License Agreement shall control as being more specific and appropriate to the nature of the software supplied hereunder. 15. Titles - The titles of the articles and sections of this Agreement are for convenience only and are not a part of this Agreement and do not in any way limit or amplify the terms and provisions of the Agreement. 16. Applicable Law - The laws of the State of Florida shall govern this Agreement, excluding its choice of law rules. Synergen Series™ Software License Type: ./ Concurrent user license: Enter Maximum number of concurrent users - 200 Users o Site or Department license: Enter Named Site or Department and Computer Location o Enterprise license: Enter Named Enterprise and Computer Location Synergen SeriesTM Software License Scope: ./ Base Product: All Subsystems of Application and Database (Resource, Maintenance, Inventory, Purchasing, Customer, Admin. ./ Synergen Series Web Deployment o Synergen Series Client/Server Deployment o Synergen Series Bar Coding Extension ./ Synergen Series GIS Integration Extension o Synergen Series Mobile Computing Extension o Synergen Series Education Courseware o Synergen Series Learniversity System Basics CBT o Other (Specify): Licensor: Licensee: Synergen, Inc. 2121 N. California Blvd. Suite 800 Walnut Creek, CA 94596-7306 City of Clearwater 100 S. Myrtle Ave. Clearwater, FL 33756 SWL-005M.SWS-008.Clearwater ~Synergen,Inc.2003 -3- Synergen, Inc. SOFTWARE SUPPORT AGREEMENT Whereas Synergen, Inc. (hereinafter "Synergen") has licensed the software described in the Software License Agreement above, and incorporated by this reference (hereinafter "software"), to the City of Clearwater, Florida (hereinafter "Customer"), Customer now desires to be certain that Software is supported in a convenient manner for the use and benefit of Customer. Synergen is willing to undertake the support and maintenance of the software subject to the following conditions. I. Scope of Services Synergen shall provide support and maintenance of the baseline software and modules purchased by the Customer. Support and maintenance shall include any or all of the foIlowing activities: A. Telephone consultation regarding baseline problem diagnosis and identification B. Temporary correction or workaround where necessary C. Reprogramming as necessary to resolve a baseline system defect D. Standard Product Updates and Releases to the baseline software are made available in accordance with Section IV, provided the Annual Support fee is paid E. Answer questions about the use of the product not covered in the on-line help or documentation. Does not include questions more appropriate to Business Process Review, Core Team Training, or other Training which can be provided as described in Section III below. /l. Payment Terms Customer shall pay an annual fee to Synergen for services defined in I above (see Exhibit A). J/I. Additional Consultation or Services When the customer desires services not covered by this support agreement, such services will be billed to the Customer on a time and materials basis. Services not covered by this support agreement include the foIlowing and will be billed on a time and materials basis: A. Installation Support B. Configuration Support C. Product Training D. Interface Development E. Custom Programming F. Data Migration Development G. On-site Support H. Application of Service Packs or Patches L Support for Synergen developed or customer developed customer-specific interfaces, triggers, SAPI modules, reports, report selection forms, or other non-baseline objects. Customer understands and agrees that Synergen will support services and service calls pursuant to V. below.. Time spent by Synergen on issues traceable to items identified in items above wiIl be billed at current time and materials rates. In such cases. prior authorization is not possible and customer agrees to pay for such charges. If additional support is required by the Customer, an option to this Agreement can be provided for Professional Services to cover the items noted above. The scope and price for this support option wiIl be mutually determined,by the Customer and Synergen. Expenses of Customer for downtime, Customer's staff, Customer computer time, and Customer supplied materials shall be borne by Customer. IV. StandJud Product Upd/ltes or Releases During the term of this Support Agreement, Synergen will make available to Customer all updates to the standard product that is the basis for the Software covered by this Agreement. For the purposes of this Agreement, "Standard Product" refers to the Baseline Application as defined in Exhibit A. Standard Synergen configuration features, such as Business Rules, Code Tables, User Profiles, Responsibilities, Buyers, User Defined Fields (UDFs), Account Structure, Report Administration Parameters, Synergen Series Sequence Numbers, Approvals, Pay Periods, Accounting Periods, Required Fields, Special List of Values, Default Values, Custom Menus, User Defined Order By's, Record Duplication Settings, Home Page Links, all Personalization (including passwords, default selection criteria, custom searches, saved searches, and Synergen Series Messages) and Standard Interfaces, are designed to be unaffected by Standard Product Updates and Releases, and such configurations are covered by this Software Support SWL-005M.SWS-008.Clearwater <<;) Synergen, Inc. 2003 -4- Synergen, Inc. Agreement. Non-baseline objects identified in Section III above, whether developed by Synergen or by Customer, mayor may not continue to work unaffected without modification after application of a Standard Product Update or Release. Support for such objects will be provided as described in Section III above. V. Response Synergen shall use its best efforts to respond in a timely manner to requests of Customer for support as described in Exhibit Boo VI. Personnel Support services shall be perfonned by professionals acquainted with the software, and according to the highest professional standards of the trade. VII. Jurisdiction This Agreement shall be construed under the laws of the State of California. VIII. Approval This Agreement may only be modified in writing. IX Effective Dale and Annual Renewal This Agreement is initially effective upon installation of the Software. It shall then be renewed automatically on an annual basis, unless otherwise agreed in writing by Synergen and the Customer prior to the start of the new support period. X Validity This document supercedes all previous copies used by Synergen and the Customer. With each annual renewal, the then- current Software Support Agreement will be delivered to Customer and will be the governing document. Xl. Software Products The software Products identified in the Software License Agreement are covered by this Support Agreement. SWL-005M.SWS-008.Clearwater @ Synergen, Inc. 2003 -5- Synergen, Inc. IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed by their duly authorized representatives. SYNERGEN, INC. 2121 Nortb California Blvd. Suite 800 Walnut Creek, CA 94596 Signature ~.~)~ Printed Name ~(cJ.-o,rd. r<.. ~c..cj)o.,-Jd TitleYr-es-,ck-t :f C ED Date 612.~3 CITY OF CLEARWATER, FLORIDA 112 Soutb Osceola Avenue Clearwater, FL 33756 Date SWL-005M.SWS-008.Clearwater ~ Synergen, Inc. 2003 By: 11: .t~~ .J,;;z/ Cynthia..E. Goudea 7J - City Clert -6- Synergen, Inc. Exhibit A Phase 1 Software and Support Pricing The following software license and support fees are applicable for Phase 1 of the City of Clearwater Asset Management Project. Table I illustrates pricing for the Synergen SeriesTM on a concurrent user basis as agreed by the City of Clearwater. Table 1: Synergen Series™ License Fees for the City of Clearwater ,--~----- ---------- -~----------- --- - ---- - --_.-------,--~--~ I ,,\ lH'1 Iltll """1...'1 f{,,,1 'I I I " 'I I'll' j;, 1,liI" : I -- - -~- --- - -- -- -- --- - - - - - - - - - - - - --- -- -- -.---------- - -- ---------...,j , Base Product Server License $80,000 Concurrent User License Fee (200 users) $200,000 ESRI GIS Integration $25,000 Total Synergen License Fees $305,000 The Synergen SeriesTM baseline system includes the following subsystems as described in the Synergen Series Product Brochure. _ Resource Data · Maintenance Planning . Inventory Control - Purchasing _ Document Control · Operational Accounting . Administration (with Reports Listing) · Fleet Management SOFnNARE SOURCE CODE Product source code is not sold but can be provided in escrow. There is a minimal charge for this service of $1 ,5oo/year. Oracle product license fees are also not included and it is assumed that the City of Clearwater will purchase all required Oracle run-time user licenses. LICENSE MILESTONE PAYMENTS Payment for the Synergen Series™ base product License Fee, Concurrent User License Fee and ESRI GIS Integration License Fee wiII occur on the following schedule: . 60% Contract Award . 25 % Software Installation . 15% 60 days after go live or March 1, 2004 whichever comes first Software Installation is defined as delivery, installation and successful demonstration of the baseline functionality described in the user documentation, or 60 days after software installation, whichever occurs first. SOFTWARE SUPPORT AGREEMENT Synergen will provide support and maintenance of the baseline software licenses and modules purchased as long as the City of Clearwater maintains a current Annual Support Agreement. The Annual Support Fee is currently 20% of the license fee basis, payable annually in advance. Table 2 iIlustrates pricing for the initial year of software support based on a license fee basis of $305,000. Synergen agrees not to increase Software Support Fee more than 5 % in anyone year. SWL-005M.SWS-008.Clearwater @ Synergen, Inc. 2003 -7- Synergen, Inc. Table 2: Synergen Series™ Annual Software Support Fees for the City of Clearwater ~-------------------~~-- --- ---- -- ----~--------.---~-~ I "'. Il( 1 ~l'l! \'eri(,~I" I , I "'c!" }llltJH I P'lfllli.!, i I = ________ ~_ __________ _ _ - -- - - ---- ----~--- - r- ------~- - --- Annual Software Support Fee (due at installation and thereafter annually payable in advance) 61,000 SWL-005M.SWS-008.Clearwater ~ Synergen, Inc. 2003 -8- Synergen, Inc. " Exhibit B Synergen Customer Support Call Response Process Customer Support Call Escalation In order to maintain the highest level of responsiveness and service, simple and effective escalation procedures are in place, as described in this document. Escalation causes various levels of Synergen Project and Product management to become actively involved in cal1 resolution. Time Based Escalation Time based escalation exists to ensure no open call is al10wed to 'fall through the cracks'. This escalation is independent of severity (see below for severity-based escalation). Any call open for more than 14 days is automatically escalated from 'In-Progress' to 'In-Progress-E I-Pending' . This is referred to as 'level 1 escalation'. Any call open for more than 21 days is automatically escalated from 'In-Progress-El' to 'In-Progress-E2-Pending'. This is referred to as 'level 2 escalation'. Severity Based Escalation In addition to automatic escalation, any call may be escalated to a higher level by the Customer Support Analyst at their discretion based on input from the customer and others. The Customer Support analyst will set the status to 'In Progress-E I-Pending' to indicate escalation based on severity, and will notify the Customer Support Manager of this change. Call Review The Customer Support Manager reviews all open calls on a daily basis, setting calls to 'EI-Pending' and 'E2- Pending' as required based on their age. Immediately following this review, all calls requiring escalation are reviewed. Level 1 Escalation Procedure During the call review, all 'EI-Pending' calls are processed and appropriate action is taken. The Customer Support Manager first reviews the call with the appropriate Support Analyst to determine the reason for the delay in resolving the call (for Time Based escalation) or the severity of the call (for Severity Based escalation). Based on this review, subsequent actions are taken as follows: o Identify the key roadblock to timely resolution (resources, information from Customer, etc). o A preliminary action plan will be created and documented in the call. This action plan will address the roadblocks and identify a course of action to achieve resolution to the problem in a timely manner. A preliminary assignment of responsibility for the call will be made, and noted in the call in the 'Escalation Responsible' field. The call will then be set to ' In-Progress-E I' to indicate a level-l escalated call, and an e- mail will be sent to the 'Escalation level I review group' consisting of Project Manager, Product Manager, Customer Support Manager and the Escalation Responsible person (Product Manager may be excluded if the call does not relate to a baseline product issue). o The 'review group' will review the Call Log and the Escalation Action Plan. The group will finalize the SWL-005M.SWS-008.Clearwater -9- Synergen, Inc. <&:l Synergen, Inc. 2003 " preliminary action plan and the Escalation Responsible assignment either bye-mail or by arranging a meeting or conference call, as appropriate. The Escalation Action Plan is attached to the Call Log. o Once the Action Plan is finalized, the 'Escalation responsible' person is responsible for seeing the action plan through to completion. This person will keep the Support Analyst associated with the problem informed of developments as they occur (the Support Analyst will remain responsible for keeping the call log up to date and will ultimately close out the call); however the responsibility for follow up and completion of the call is now transferred to the 'Escalation Responsible' person. o The Action Plan should include a designated Synergen representative calling the customer to assure them that the problem is receiving the appropriate attention and has been escalated to a higher level. Any impacts or delays related to the problem will be negotiated between the Project Manager and the customer. Escalation level 1 calls ("In Progress-E 1 " calls) are either resolved and closed, or get escalated to level 2. Level 2 Escalation Procedure During the call review, all 'E2-Pending' calls are processed by the Customer Support Manager and appropriate action is taken. The manager of Customer Support first reviews the call with the 'Escalation Responsible' person to detennine the reason for the delay in resolving the call (for Time Based escalation) or the severity of the call (for Severity Based escalation). Based on this review, appropriate action is taken as follows: o Review the Escalation Action Plan and the 'Escalation Responsible' assignment developed as part of Level 1 Escalation (described above) and make preliminary changes as appropriate, and document any changes in the Action Plan. The call will then be set to 'In Progress-E2' to indicate a level-2 escalated call, and an e-mail will be sent to the 'Escalation level 2 review group' consisting of the Vice President of Operations and the Vice President of Product Development, and the Escalation Responsible person. o The 'review group' will review the Call Log and the Escalation Action Plan, as described above for level 1 Escalation. The group will finalize the preliminary Action Plan and the escalation responsible assignment by e-mail, meeting, or conference call as appropriate. o As stated above for level 1 escalation, the 'Escalation Responsible' person is responsible for seeing the action plan through to completion, keeping the Customer Support Analyst and others informed. o The Action Plan should include a designated Synergen representative calling the customer to assure the customer that the problem is receiving the appropriate attention and has been escalated to a higher level. The Vice President of Operations will periodically review all Escalation level 2 calls (All "In Progress-E2" calls) to ensure progress towards closure is being achieved. SWL-005M.SWS-008.Clearwater ~ Synergen, Inc. 2003 -10- Synergen, Inc. Problem Severity and Synergen Responsiveness PROBLEM SEVERITY Problems are categorized into four levels: Desirable (4) Necessary (3) Important (2) Critical (1) These levels are explained below. Desirable A Cosmetic issue, or issue that does not significantly impact the major flow of an individual module. A process that could be improved to be more logical or intuitive, but that may require significant re-design to implement. Necessary An issue that affects an individual 'core functionality' module in a moderately significant way, but one that can be worked around or ignored in the near-term without substantial hardship to the end user. Important An issue that affects an individual, 'core functionality' module in a significant way, but one that can be worked around or ignored in the near-term with some hardship to the end user. Critical An issue that causes the entire system to be 'production down'. RESPONSIVENESS Synergen accepts problem reports via email or by voice call; however, any time-critical issue must be reported directly by 'voice' call, since the timeliness of email communication cannot be guaranteed. Synergen Customer Support immediately assigns all calls received to a qualified Support Analyst capable of taking ownership of the call; we do not employ queuing mechanisms and thus, we do not employ systems or processes to trigger alerts based on 'unassigned' calls. The ability ofSynergen to take meaningful action on an issue is highly dependent on the quality of the information provided to Synergen about the problem - the steps leading up to the problem, the exact content of any error message or condition, etc. While Synergen will make every effort to address any problem reported to them, until a reproducible scenario is described that allows us to reproduce the problem in our environment, our ability to make progress will be limited. We employ the following methods to address each issue, based on the severity of the issue. Desirable severity: An initial response will be sent within 4 working days or less. Subsequent interactions with the customer will occur as required until the issue is fully understood and documented. Once the problem has been fully understood and documented, the customer will be given the relevant information, and the call will be 'closed'. SWL-005M.SWS-008.Clearwater \!::) Synergen, Inc. 2003 -11- Synergen, Inc. The issue is then assigned to our development group and planned for a future major release of the product. Necessary severity: An initial response will be sent within 2 working days or less. Subsequent interactions with the customer will occur as required until the issue is fully understood and documented. Once the problem has been fully understood and documented, the customer will be given the relevant information, and the call will be 'closed'. The issue is then assigned to our development group and planned for a future 'service pack' release of the current product. Important severity: An initial response will be sent within I working day or less. Subsequent interactions with the customer will occur as required until the issue is fully understood and documented. Once the problem has been fully understood and documented, the customer will be given the relevant information, and the call will be 'closed'. The issue is then assigned to our development group and planned for a future 'patch' or 'service pack' release of the current product. 'Important' items are assigned a high priority within the development organization, above ongoing development work. Patches are posted as soon as they are available Critical severity: An initial response to this type of problem report will be sent within 4 hours or less. Subsequent interactions with the customer will occur as required until the issue is fully understood and documented. Once the problem has been fully documented and understood, the customer will be given the relevant information, and the call will be 'closed'. The issue is then assigned to our development group and is assigned a unique 'emergency patch' identifier. 'Critical' items are assigned the highest possible priority, above all other activities. An 'emergency patch' is posted as soon as it is available. "Critical" severity calls will be subject to level 1 escalation as described above. 3RD PARTY PRODUCT AND SYSTEM DEPENDENCIES The Synergen application depends on other products (software and hardware) and systems beyond it's control such as server hardware, server operating systems, oracle database software, oracle application server software, network infrastructure, client workstation hardware, client workstation software, etc. Problems relating to such products and systems may impact the ability of an end-user to access the Synergen application. Synergen cannot be responsible for problems associated with such products and systems; It is the responsibility of the customer to maintain adequate support agreements with all suppliers of such products and systems. ACCESS TO SYSTEMS AND DATA Synergen may request remote access to the affected system, and/or request a 'current copy' of the data as it exists in the database for the purposes of troubleshooting an issue. The timely provision of this access and/or data impacts our ability to take meaningful action on an issue. Synergen will sign non-disclosure agreements if required for this access. SWL-005M.SWS-008.Clearwater ({:) Synergen, Inc. 2003 -12- Synergen, Inc.