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SUPPORT AND MAINTENANCE AGREEMENTSUPPORT AND MAINTENANCE AGREEMENT THIS AGREEMENT made as of the 1st day of November 2015. BETWEEN: N. HARRIS COMPUTER CORPORATION ( "Harris ") with a business address of 4200 North Fraser Way, Suite 201, Burnaby, BC, Canada V5J 5K7 -And- THE CITY OF CLEARWATER, FLORIDA, USA ( "Organization ") RECITALS 1. Harris has licensed to Organization certain Software pursuant to a Software License Agreement; 2. The Organization wishes to receive support and maintenance services related to the Software; 3. Harris shall provide the support and maintenance services related to the Software; 4. The Organization and Harris are entering into three (3) separate agreements with each dealing with a separate aspect of the Software: a Software License Agreement, a Support and Maintenance Agreement and a Software Implementation Services Agreement. NOW THEREFORE, in consideration of the mutual covenants set out in this support and maintenance agreement (the "Support and Maintenance Agreement ") and for other good and valuable consideration (the receipt and sufficiency of which is hereby acknowledged), the parties agree as follows: 1. Unless otherwise defined herein, all defined terms used herein shall have the meaning ascribed to them in the Software License Agreement (the "License Agreement "). 2. This Support and Maintenance Agreement is the exclusive statement of the entire support and maintenance agreement between Harris and Organization. 3. Harris shall provide software support primarily via telephone and electronic mail in addition to site visits only when necessary. The support services will be provided during the hours of operation as described in Exhibit 2 hereto and which are in effect as of the Start Date (as defined below), as such services may, at Harris's sole discretion, be modified or supplemented from time to time. To enable Harris to provide effective support, the Organization will establish auto remote access procedures compatible with Harris's then current practices which may be revised over time. 4. The Organization shall be provided After Hours Support in addition to Standard Support listed in Exhibit 2 for effective 24 hour coverage. An After Hours Support telephone number will be provided. 5. This Support and Maintenance Agreement becomes effective the date the Software is installed (the "Start Date "). In consideration for the support services specified in Section 2, Organization shall pay the "Support and Maintenance Fee" as detailed in Exhibit 1 below. The Support and Maintenance Fee will be billed annually in advance per the schedule in Exhibit 1 and thereafter on October 1st or on an alternative date mutually agreed to by both parties. If the Organization would like to match the annual invoicing of the Support and Maintenance Fee to its fiscal year or any other period it may request, during the initial term of this Support and Maintenance Agreement, that Harris issue a prorated invoice for the portion of the year remaining during the initial term. Harris may change the Support and Maintenance Fee from time to time in relation to each renewal term, but Organization shall only be billed once per year per the schedule in Exhibit 1 through 2019. The Support and Maintenance fee shall not increase more than 4% per annum thereafter. 7. In addition to the Support and Maintenance Fee, Organization shall reimburse Harris for its direct expenses in providing support services ( "Billable Fees ") pursuant to this Support and Maintenance Agreement which include as of the Start Date: (1) its direct travel expenses which are excluded from the total fees amount including, hotel, airfare, car rental, tolls, meal per diem of $55.00 per day, parking and airline and travel agent fees;(2) And, when personal transportation is used, a mileage charge based on the current Internal Revenue Service recommended rate per mile, Harris may update its reimbursement policies and rates related to the Billable Fees from time to time, in which case such updated policies shall apply for purposes of this Support and Maintenance Agreement, provided that such updated reimbursement policies must generally apply to all clients of Harris. 8. Harris shall supply all Upgrades to Organization at no additional charge other than the payment of the Support and Maintenance Fee. Upgrades may require additional services to be performed by Harris outside of the scope of those services provided by Harris including additional training not covered by the Software Implementation Services Agreement and professional services for the installation and implementation of the Upgrade that will be subject to the Harris's then - prevailing policies, terms and Billable Fees related to pricing and hourly rates. All such services shall be performed subject to a -2- newly negotiated Scope of Work that will be subject to the terms of the Software Implementation Services Agreement. 9. All Updates of the Software and all those services listed in Exhibit 2 which are included as part of Organization's Software support will be made available to Organization at no additional charge other than the payment of the Support and Maintenance Fee. 10. All payments hereunder shall be in U.S. dollars 11. The initial term of this Support and Maintenance Agreement shall be for one year beginning on the Start Date or as the initial term has been modified pursuant to Section 5. Thereafter, this Support and Maintenance Agreement shall automatically renew on an annual basis, unless terminated by either party upon giving to the other not less than 90 days' notice in writing prior to the end of the initial term or any subsequent anniversary of such date. Organization shall pay the then prevailing Support and Maintenance Fee in advance for each term of the Support and Maintenance Agreement and where the notice of non - renewal has not been provided in accordance with these terms, the Organization is obliged to pay the Support and Maintenance Fee for the then applicable term. The termination of this Support and Maintenance Agreement by Organization shall not affect the License or the Software License Agreement. Harris shall neither refund any Support and Maintenance Fees nor any Billable Fees if this Support and Maintenance Agreement is terminated. Organization acknowledges that if this Support and Maintenance Agreement is terminated, then it will not be eligible to receive the benefits of this Support and Maintenance Agreement including the right to Releases or to access the source code in escrow upon the occurrence of any Event of Default. 12. Title to and ownership of all proprietary rights in the Releases and all related proprietary information supplied by Harris in providing the services pursuant to this Support and Maintenance Agreement shall at all times remain with Harris, and Organization shall acquire no proprietary rights by virtue of this Support and Maintenance Agreement. 13. Harris shall have the right to terminate this Support and Maintenance Agreement immediately if: (a) Organization attempts to assign this Support and Maintenance Agreement or any of its rights hereunder, or undergoes a Reorganization, without complying with the License Agreement; or (b) Organization has not paid an invoice within ninety (90) days of the start of a renewal term. 14. Unless otherwise agreed to by the parties, all notices required hereunder shall be made in accordance with the provisions of the License Agreement. 15. Either party's lack of enforcement of any provision in this Support and Maintenance Agreement in the event of a breach by the other shall not be construed to be a waiver of any such provision and the non - breaching party may elect to enforce any such provision in -3- the event of any repeated or continuing breach by the other. 16. The parties agree that the terms and conditions contained herein shall prevail notwithstanding any variations on any orders, e-mails or other correspondence submitted by Organization. 17. The particular provisions of this Support and Maintenance Agreement shall be deemed confidential in nature and neither Organization nor Harris shall divulge any of its provisions as set forth herein to any third party except as may be required by law. 18. (a) Termination of this Support and Maintenance Agreement shall not affect any right of action of either party arising from anything which was done or not done, as the case may be, prior to the termination taking effect. (b) The Organization and Harris recognize that circumstances may arise entitling the Organization to damages for breach or other fault on the part of Harris arising from this Support and Maintenance Agreement. The parties agree that in all such circumstances the Organization's remedies and Harris's liabilities will be limited as set forth below and that these provisions will survive notwithstanding the termination or other discharge of the obligations of the parties under this Support and Maintenance Agreement. (c) FOR BREACH OR DEFAULT BY HARRIS OR OTHERWISE IN CONNECTION WITH THIS SUPPORT AND MAINTENANCE AGREEMENT, REGARDLESS OF THE NATURE OF THE CAUSE OF ACTION WHETHER IN CONTRACT OR IN TORT, INCLUDING FUNDAMENTAL BREACH OR NEGLIGENCE OR STRICT LIABILITY, THE ORGANIZATION'S EXCLUSIVE REMEDY, IN ADDITION TO ELECTING IF SO ENTITLED TO RESCIND OR BE DISCHARGED FROM THE PROVISIONS OF THIS SUPPORT AND MAINTENANCE AGREEMENT, SHALL BE (1) ACCESS TO THE ESCROWED SOURCE CODE IN ACCORDANCE WITH SCHEDULE "A" AND (2) PAYMENT BY HARRIS OF THE ORGANIZATION'S DIRECT DAMAGES TO A MAXIMUM AMOUNT EQUAL TO, AND HARRIS SHALL IN NO EVENT BE LIABLE IN EXCESS OF, THE AMOUNT OF FEES ACTUALLY PAID BY THE ORGANIZATION TO HARRIS UNDER THIS SUPPORT AND MAINTENANCE AGREEMENT DURING THE THEN - CURRENT TERM (NOT TO EXCEED 12 MONTHS) OF THE SUPPORT AND MAINTENANCE AGREEMENT UP TO AND INCLUDING THE DATE OF TERMINATION, EXCLUDING COSTS AND EXPENSES (INCLUDING REASONABLE ATTORNEY'S FEES) INCURRED BY THE ORGANIZATION IN CONNECTION WITH OBTAINING A COPY OF THE SOURCE CODE IN ACCORDANCE WITH THE ESCROW AGREEMENT BETWEEN THE PARTIES WHICH SHALL BE REIMBURSED BY HARRIS IF AN EVENT OF DEFAULT OCCURS. IN NO EVENT SHALL ANY DAMAGES INCLUDE, NOR SHALL HARRIS BE LIABLE FOR, ANY SPECIAL, INDIRECT OR CONSEQUENTIAL DAMAGES -4- EVEN IF HARRIS HAS BEEN ADVISED OF THE POSSIBILITY THEREOF. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, HARRIS SHALL NOT BE LIABLE FOR LOST PROFITS, LOST BUSINESS REVENUE, FAILURE TO REALIZE EXPECTED SAVINGS, OTHER COMMERCIAL OR ECONOMIC LOSS OF ANY KIND, OR FOR ANY CLAIM WHATSOEVER AGAINST THE ORGANIZATION BY ANY OTHER PARTY. 17. The parties hereby confirm that the waivers and disclaimers of liability, releases from liability, limitations and apportionments of liability, and exclusive remedy provisions expressed throughout this Support and Maintenance Agreement shall apply even in the event of default, negligence (in whole or in part), strict liability or breach of contract of the person released or whose liability is waived, disclaimed, limited, apportioned or fixed by such remedy provision, and shall extend to such person's affiliates and to its shareholders, directors, officers, employees and affiliates. 18. Where remedies are expressly afforded by this Support and Maintenance Agreement, such remedies are intended by the parties to be the sole and exclusive remedies of the Organization for liabilities of the Harris arising out of or in connection with this Support and Maintenance Agreement, notwithstanding any remedy otherwise available at law or in equity. 19. The Organization may, at Organization's option, enter into an escrow arrangement with Harris. Upon the Organization's request: (i) Organization shall be presented with the standard escrow beneficiary enrollment document for participation in Harris's source code escrow arrangement with an escrow agent (the "Escrow Arrangement "). (ii) By entering into this Escrow Arrangement, the Organization shall have all the rights as stipulated in the escrow agreement together with those rights which are more specifically outlined in Schedule "A ", Escrow Terms, which shall form part of this Support and Maintenance Agreement in accordance with the terms of Schedule "A ". (iii) No escrow in Third Party Software is provided. 20. This Agreement shall be governed by the laws of the State of Florida. Any legal action taken by either party arising out of this Agreement shall be filed in a court of competent jurisdiction in the State of Florida. 21. This Support and Maintenance Agreement may not be assigned by the Organization unless, concurrently with any such assignment, the Organization assigns its rights under, and complies with the provisions of the License Agreement. 22. This Support and Maintenance Agreement shall be binding upon the successors and assigns of the parties and enure to the benefit of the successors and permitted assigns of the parties. -5- 23. The invalidity or unenforceability of any provision or covenant contained in this Support and Maintenance Agreement shall not affect the validity or enforceability of any other provision or covenant herein contained and any such invalid provision or covenant shall be deemed to be severable. 24. This Support and Maintenance Agreement may be executed in counterparts (whether by facsimile signature or in PDF format via e-mail or otherwise), each of which when so executed shall constitute an original and all of which together shall constitute one and the same agreement. IN WITNESS WHEREOF, the Parties have executed this Support and Maintenance Agreement to be effective as of the date first written above. Countersigned: G(eOrvt (\trt X-of George N. Cretekos Mayor Approved as to form: Assistant City Attorney N. HARRIS COMPUTER CORPORATION Per: Name: Scott MacKendrick Title: Vice President, Operations CITY OF CLEARWATER, FLORIDA By: . 4. B. Horne II City Manager Attest: Rosemarie Call City Clerk t Exhibit 1 Annual Support and Maintenance Fee APPLICATIONS SUPPORT & MAINTENANCE COSTS/YEAR FOR EACH APPLICATION (Name of Application /Product) 2015 2016 2017 2018 2019 Cayenta Utilities CIS $76,636.48 $78,169.21 $79,732.59 $81,327.25 $82,953.79 sub -total 576,636.48 $78,169.21 $79,732.59 581,327.25 $82,953.79 3rd Party Products Loris File Nexus $14,887.71 515,185.46 515,489.17 $15,798.96 516,114.94 Actuate Maintenance $7,542.52 $7,693.37 $7,847.24 $8,004.18 $8,164.27 AcuCOBOL Software Ma inten a nce $799.51 5815.50 5831.81 $848.45 $865.42 sub -total 523,229.74 523,694.33 524,168.22 524,651.59 525,144.62 TOTAL COST $99,866.22 5101,863.54 5103,900.82 5105,978.83 $108,098.41 Payment Schedule — Year 1 All products (3rd Party and Cayenta) Due on November 1, 2015 .$99,866.22 less $6,648.48 paid on MN00080765 = $93,217.74 Payment Schedule — Year 2 All products (3rd Party and Cayenta) — Due on November 1, 2016 $101,863.54 Payment Schedule — Year 3 All products (3rd Party and Cayenta) — Due on November 1, 2017 $103,900.82 Payment Schedule — Year 4 All products (3rd Party and Cayenta) — Due on November 1, 2018 $105,978.83 Payment Schedule — Year 5 All products (3rd Party and Cayenta) — Due on November 1, 2019 $108,098.41 * *Monthly payments will continue to be made under the existing agreement until November 1, 2015. Exhibit 2 Standard Support and Maintenance Services — Standard Guidelines The purpose of this Exhibit 2 is to provide our customers with information on our standard coverage, the services which are included as part of your annual software support, a listing of call priorities, an outline of our escalation procedures and other important details. Harris reserves the right to make modifications to this document as required; provided, however, Harris shall not reduce the scope of support provided hereunder without the prior written consent of the Organization. The services listed below are services that are included as part of your software support. • 800 Toll Free Telephone support • Scheduled assistance for installations, upgrades & other special projects (there may be charges depending on the scope of work) • Technical & Functional troubleshooting & issue resolution • E -mail support call logging and notification • Free eSupport access 24 x 7 with the following on -line benefits: Log & close calls View & update calls Update contact information - Access published documentation Access available downloads - Access Support knowledge base Participate in Discussion Forums - Report on metrics • Standard software releases and updates Defect corrections (as warranted) Planned enhancements State and/or Federal mandated changes - Payroll regulated changes - Participation in BETA program, optional at CPU's discretion Release notes Updated documentation as available • Limited training questions (15 minute guideline) • Customer Care Program Quarterly News Letter with support tips - Technical support bulletins Communication on new products and services On -site visits (as required) • Design review for potential enhancements or custom modifications • Design review for potential configuration changes • Outstanding Calls Report with conference call (as required) • Ability to attend the annual customer conference (attendance fees apply) Helpdesk Hours Our standard hours of support are from 8:00 a.m. EST to 8:00 p.m. EST, Monday to Friday, excluding designated statutory holidays. After Hours Support is available from 8:00 p.m. EST through to 8:00 a.m. EST and is billable on an hourly basis. Weekend assistance is available and must be scheduled in advance and in most cases is billable. Response Times Response times will vary and are dependent on the priority of the call. We do our best to ensure that we deal with incoming calls in the order that they are received, however calls will be escalated based on the urgency of the issue reported. Our response time guidelines are as follows: Priority 1: 1 - 4 hours Priority 2: 1 - 8 hours Priority 3: 1 - 24 hours Call Priorities In an effort to assign our resources to incoming calls as effectively as possible, we have identified three types of call priorities, 1, 2 & 3. A Priority 1 call is deemed by our support staff to be an Urgent or High Priority call, Priority 2 is classified as a Medium Priority and Priority 3 is deemed to be a Low Priority. The criteria used to establish guidelines for these calls are as follows: Priority 1— High • System Down (Software Application, Hardware, Operating System, Database) • Inability to process payroll checks • Inability to process accounts payable checks • Inability to process bills • Inability to process work orders • Inability to process payments • Program errors without workarounds • Incorrect calculation errors impacting a majority of the current bill cycle records • Aborted postings or error messages preventing data integration and update • Performance issues of severe nature impacting critical processes • Hand -held interface issues preventing billing or creating billing errors • Security issues Priority 2 - Medium • System errors that have workarounds • Calculation errors impacting a minority of records • Reports calculation issues • Printer related issues (related to interfaces with our software and not the printer itself) • Hand -held issues not preventing billing • Performance issues not impacting critical processes • Usability issues • Workstation connectivity issues (Workstation specific) Priority 3 - Low • Report formatting issues • Training questions, how to, or implementing new processes • Aesthetic issues • Issues with workarounds for large majority of accounts • Recommendations for enhancements on system changes • Questions on documentation Call Process All issues or questions reported to support are tracked via a support call; our support analysts cannot provide assistance unless a support call is logged. Our current process for logging calls includes the following: eSupport (via website), email, and phone . • Your call must contain at a minimum: your organization name, contact person, software product and version, module and/or menu selection, nature of issue, detailed description of your question or issue and any other information you believe pertinent. • Our support system or one of our support analysts will provide you with a call id to track your issue and your call will be logged into our support tracking database. • Your call will be stored in a queue and the first available support representative will be assigned to deal with your issue. • As the support representative assigned to your call investigates your issue, you will be contacted and advised as to where the issue stands and the course of action that will be taken for resolution. If we require additional information, you will be contacted by the assigned support representative to supply the information required. • All correspondence and actions associated with your call will be tracked against your all in our support database. At any time, if available to you, you may log onto our website to see the status of your call. • Once your call has been resolved, you will receive an automated notification by email that your call has been closed. This email will contain the entire event history of the call from the time the call was created and leading up to the resolution of the call. You also have the option of viewing both your open and closed calls, if available to you, via our website. • If your issue needs to be escalated to a development resource or programmer for resolution, your issue will be logged into our development tracking database and you will be provided with a separate id number to track the progress of the issue. At this time, your support call will be closed and replaced by the development id number. The development id number will remain open until your issue has been completely resolved. Issues escalated to development will be scheduled for resolution and may not be resolved immediately depending on the nature and complexity of the issue. • Contact the support department at your convenience for a status update on your development issues, or log onto our website (if available to you) to view your issues on- line. Escalation Process Our escalation process is defined below. This process has been put in place to ensure that issues are being dealt with appropriately. If at any time you are not completely satisfied with the resolution of your issue, you are encouraged to escalate with the support department as follows: Level 1: Contact the support representative working on your issue Level 2: Contact the support supervisor or group lead Level 3: Contact the director of support Level 4: Contact the vice president of support Level 5: Contact the CEO of Harris Holiday Schedule Below is a listing of statutory holidays. Please note that support services will be closed on designated days as outlined below. New Year's Eve Early Closure New Year's Day Closed Labor Day Closed Christmas Eve Early Closure Christmas Day Closed Billable Support Services The services listed below are services that are out of scope of your support and maintenance agreement and are therefore considered billable services. • Extended telephone training (beyond 15 minutes per call) • Performing Forms redesign or creation (includes Bill Prints, Notice Prints and Letters) • Performing Setup & changes to hand -held interface or creation of new interface • Performing Setup of new services or changes to services ( PAP, ACH, etc) • Setup or Creating File imports /exports - Interfaces to other applications • Performing Refreshes, backups, restores, setting up test areas • Setup of new printers, printer setup changes • Performing Custom modifications (reports, bills, forms, reversal of customizations) • Setting up additional companies / agencies / tokens / general ledgers • Performing Data conversions / global modification to setup table data • Performing Database maintenance, repairs & optimization • Extended Hardware & Operating System support • Performing Upgrades & support of third party software • Performing Installations / re- installations (workstations, servers) Test Databases & Environments We support customers in the maintenance of independent Test Environments for testing purposes. This allows customers the opportunity to test fixes, modifications, new business processes and/or scenarios without risking any potentially unwanted changes to the live environment. The creation of Test Databases & Environments is a billable service unless otherwise noted in the implementation SOW, quotations & incremental maintenance rates will be provided on request. Connection Methods To ensure we can effectively support our clients, we require that a communication link is established and maintained between our two sites. It is the client's responsibility to ensure the connection is valid at your location so that we can connect to your site and resolve any issues. Our supported methods of connection are: Direct internet, Virtual Private Network (VPN), Remote Access Server (RAS), Direct Connection (modem) and Terminal Services (a backup connection may be required for file transfers). Hardware and Third Party Support — if applicable The purpose of this section is to provide our customers with information on our standard coverage and the services which are included as part of your annual hardware and third party software support (if applicable). This section serves as a guideline for the support department but is superseded by an existing third party or other agreement. Standard Hardware and Third Party Software Support Services • 800 telephone support — first line phone support for troubleshooting (note more complex issues will be escalated to the actual vendor of the products) • "on call" after hours support (scheduled assistance for installations, upgrades and other special projects — there may be charges depending on the scope of work) • remote connection support • technical troubleshooting • limited training questions (15 minute guideline) • assistance with creation of backup scripts / backup recovery • assistance with recovering data resulting from system crashes (charges may apply) • recommendations on specific hardware requirements • support provided for installed database issues (30 minute guideline) • ODBC installation and connection to database assistance • updating databases to support new versions of installed applications • assistance with database installation, configuration and updating The services listed below are services that are out of scope and are therefore considered billable — please note that we do not provide hardware support for any printers: • on -site installation or upgrade of hardware and third party software • extended telephone training (beyond 15 minutes) • performing reconfiguration of hardware and fileservers • recovering data resulting from client error • upgrading of hardware systems • preventative maintenance monitoring or other services • recommending or assisting with disaster recovery plans • re- establishment of ODBC connection if connection was lost due to actions of customer • ODBC connections to other third party products due to the customer or third party software • creation of custom reports • report writer training, upgrades and installations (other than at time of initial purchase)