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SOFTWARE MAINTENANCE AGREEMENT , ~. , I I SOFTWARE MAINTENANCE AGREEMENT BETWEEN Network Computing Corporation And City of Clearwater This Agreement entered into thiso1Qr#day of ~~~CJ__ , 1990, by and between City of Clearwater (hereinafter called ptl~nt~and Network Computing Corporation, a North Carolina corporation, with principal offices at 5301 77 Center Drive, Charlotte, North Carolina 28217, (hereinafter called IINCCII) for and in cons i derat ion of the payments, covenants, and mutua 1 undertak i ngs, hereinafter set forth the parties do hereby agree and contract with each other, as follows: ARTICLE 1: PURPOSE: Client hereby agrees to utilize and protect the proprietary computer software provided to the Client as specified in this Agreement, and does hereby engage NCC for the cont i nued ma i ntenance of the computer software so provided, NCC hereby agrees to provide the availability of maintenance services as set forth in this Agreement. ARTICLE 2: EXHIBITS: Attached hereto and made a part hereof for all purposes are the following Exhibits: Exhibit A: Licensed Software Listing Schedule Exhibit B: Designated Equipment Schedule Exhibit C: Schedule of Charges; Payments Schedule In the event of any conflict between the provisions of this Agreement and the provisions of any Exhibit, the provisions of this Agreement shall govern. ARTICLE 3: DEFINITIONS: The following terms are defined for the purpose of this Agreement as follows: (A) IILicensed Softwarell - shall mean the design, technology, conventions, source code, object code, flow charts, file layouts, printed forms design, sample runs, operational description, user manuals, sales literature, and all other documentat i on for the 1 i censed software set forth in Exh i bit A, and any subsequent version of the above created by licensee or licensor. (B) 1I0esignated Equipment" - shall mean the equipment enumerated in Exhibit B. (C) IIUsell - shall mean copying or otherwise utilizing any portion of any Licensed Software from storage unit(s) or media or otherwise into (equipment for processing, or using any Licensed Software in the course of operation of any Oesignated Equipment or using documentation in the support of any use of any Licensed Software. (D) 1I0ocumentationll - shall include but not be limited to: users manuals, systems manuals, operating manuals and summary literature. All such documentation as provided by NCC is subject to copyright and shall be treated by Client as confidential proprietary material by NCC. 1 CJ~-:-. . (".., /" ~ \ ;.~) , , I I (E) IIUpgradesll - shall mean improvements to the Licensed Software which relates to operating performance to the Licensed Software which relates to performance but-which does not change the basic function of the Licensed Software. ARTICLE 4: TERM OF AGREEMENT: The term of this Agreement shall commence on the anniversary date of the installation of Software pursuant to that certain Contract for Computer Hardware and Software dated , 1990, between the parties hereto and shall continue in force for a period of one year from such date and from year to year thereafter until one party notifies the other party, in writing, of such party's desire to terminate this agreement not less than sixty (60) days prior to any anniversary date thereof. Failure to give notice of termination not less than sixty (60) days prior to the expiration of the original term hereof or any renewal term shall be deemed renewal for one additional year period. Termination of this Agreement shall not affect the rights, duties and liabilities which accrue prior to final termination. ARTICLE 5: PRICE PROTECTION: Exhibit ~ represents the current charges for Software maintenance. Said charges shall remain unchanged for twelve (12) months after the commencement of this Agreement, unless the parties otherwise agree in writing. Said charges can be increased or decreased by NCC at each yearly renewal date or anniversary date hereof by NCC notifying Client of such changes in writing not less than sixty (60) days prior to any anniversary date. Any increases will be limited to a ten percent (10%) increase per calendar year. Said rev i sed charges sha 11 remain in fu 11 force and effect for the Agreement year next ensuing the charge-revision notice. Client agrees to pay such revised charges. ARTICLE 6: CHARGES BY TYPE AND PAYMENT TERMS: (A) The charges set forth in Exhibit ~ hereof are for software maintenance services performed hereunder and unless specifically provided elsewhere herein, no additional charges shall be made by NCC for its services under this Agreement. (B) In the event that certain customizing programming services shall be furnished by NCC subsequent to the date hereof, in addition to other subsystems which may be subsequently installed, these customized items of Software shall be maintained by NCC under the terms specified in this Agreement, provided however, that Exhibit ~ shall be amended to include charges for such other or additional services performed or provided by NCC. (C) All out-of-pocket expenses incurred by NCC in providing maintenance services under this Agreement shall be paid by Client upon invoice by NCC; provided however, that prior Client approval shall be required for all items of these expenses in excess of $100.00 each. These reimbursable expenses include, without limitation, employee travel and on-site time which will be charged at NCC's then applicable hourly rates, travel expenses, subsistence, long distance telephone calls, postage and extraordinary reproduction co~ts. (D) Payment for NCC' services hereunder shall be due and payable as set forth in Exhibit C. 2 I I ARTICLE 7: MAINTENANCE NCC will provide the availability of the following software maintenance services (provided Client has implemented use of any updated version of the Licensed Software provided by NCC to Client): Software Upgrades made generally available without charge to customers of the Licensed Software. Upon completion by Client of a Software performance report, a written response to the items contained therein will be issued by NCC. A telephone number will be provided to the Client for the purpose of assisting communication by Client with NCC's representative in the event assistance is reasonably needed by Client, to identify, verify, and resolve a problem with the Licensed Software. NCC's responsibility to provide this availability of software maintenance services is expressly conditioned upon the Client's properly operating and maintaining the License Software, including the Designated Equipment with which they are place into use, and without modification thereto. ARTICLE 8: UPGRADES: All Upgrades produced by NCC, and generally furnished to its commercial licensees, shall be furnished to Client. ARTICLE 9: APPLICABLE LAW: The laws of the State of Florida shall govern interpretation of this Agreement. ARTICLE 10: ENTIRE AGREEMENT: (A) This Agreement embodies the whole agreement of the parties with respect to the maintenance of the Licensed Software. There are no promises, terms, conditions, or obligations referring to the subject matter hereof other than contained herein. (B) No amendment or modification of this Agreement shall be valid or binding on any party unless such amendment or modification is in writing and signed by the duly authorized representative of both parties. ARTICLE 11: HEADINGS NOT CONTROLLING: Headings used in this Agreement are for convenience only and shall not be used in construing or interpreting any provision. ARTICLE 12: COMPLIANCE: If any term or provision of this agreement shall be found to be illegal or unenforceable then, whereupon as so amended shall remain in full force and effect. ARTICLE 13: CONSENT TO BREACH NOT WAIVER: No term or provision hereof shall be deemed waived and no breach excused, unless such waiver or consent shall be in writing and signed by the party claimed to have waived or consented to such breach. The consent by any party to, or waiver of, a breach by the other, whether 3 " I I express or implied, shall not constitute a consent to, waiver of, or excuse for any other different or subsequent breach. ARTICLE 14: NOTICES: All notices under this Agreement shall be in writing and shall be deemed duly given; upon delivery, if delivered by hand (against receipt); or three days after posting if sent by registered mail (receipt requested); to a party hereto at the address hereinabove set forth or to such other address as a party may designate by notice pursuant hereto. ARTICLE 15: AUTHORITY: Each party has full power and authority to enter into and perform this Agreement, and the person signing this Agreement on behalf of each party has been properly authorized and empowered to enter into this Agreement. ARTICLE 16: BINDING EFFECT: This agreement shall be binding upon, and shall inure to the benefit of NCC and Client and their respective successors or assigns. ARTICLE 17: NO ASSIGNMENT: Neither this Agreement, nor any right or interest hereunder, shall be assigned by Client without the prior written consent of NCC. Any assignment of attempted assignment, whether by operation of laws or otherwise without the written consent of NCC shall at the option of NCC, be null and void. IN WITNESS WHEREOF, the Client and NCC have executed this Agreement as of the date first above written. c~ea. W:~ 'V~ayor-CommissionerCRJ Approved as to form and correctness: Xj.,.} dff~r~Y ~N' p- CITY. o~~ <~ /\R~A1_E~.t7. By:' -~-._d~ "'. -1 Jy~~ana~et-_>/ .--:-..",. , -- Attest: ,- ""'-, _/ By .... -- --~- - "-, ~. tty-C-~e-r'I( .-' J . .' AJ~ D .9-~~ By: 4 ~ I I EXHIBIT II All Attached and made a part of that certain Software Maintenance Agreement dated , 1990, between Network Computing Corporation and City of Clearwater. LICENSED SOFTWARE LISTING SCHEDULE The following software applications subsystems are to be maintained under this Agreement: NCC APPLICATIONS: Utility Billing and Cash Receipts 3RD PARTY APPLICATIONS: IQ Intelligent Query DIGITAL APPLICATIONS: VMS Operating System Cobol Development RDB Development Vaxcluster License , ~ I I EXHIBIT liB" Attached to and made a part of that certain Software Maintenance Agreement dated , 1990, between Network Computing Corporation and City of Clearwater. DESIGNATED EQUIPMENT SCHEDULE The Designated Equipment for this Agreement includes the following: One (1) Digital VAX 4000 Central Processing Unit. ',~ ' I I EXHIBIT IICII Attached and made a part of that certain Software Maintenance Agreement dated , 1990, between Network Computing Corporation and City of Clearwater. SCHEDULE OF CHARGES; PAYMENTS SCHEDULE The following subsystem license fees are applicable under this Agreement: YEARLY MAINTENANCE NCC APPLICATIONS: Utility Billing and Cash Receipts $6,000 3RD PARTY APPLICATIONS: IQ Intelligent Query DIGITAL APPLICATIONS: $1,800 VMS Operating System Cobol Development RDB Development Vaxcluster License $ N/C 341 771 N/C Subtotal $1,112 Note: License fees include 1st year maintenance fees.