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HomeMy WebLinkAboutSpringbrook - Software Maintenance Agreement Springbrook SPRINGBROOK SOFTWARE MAINTENANCE AGREEMENT PARTIES: LICENSOR: Springbrook Software, Inc., an Oregon corporation 111 SW Fifth Avenue, Suite 2900 Portland, OR 97204 Phone: 503.820.2200 Fax: 503.820.4500 Email: sales@sprbrk.coni LICENSEE: City of Cape Canaveral 105 Polk Avenue PO Box 326 Cape Canaveral, FL 32920-0326 Andrea Bowers Finance Director 321.868.1234 bowers-cape@cfl.rr.com EFFECTIVE DATE: Licensor has licensed its proprietary software products and programs to Licensee, and Licensee wishes to have Licensor maintain and support the use of the Software. Licensor and Licensee therefore agree as follows: 1. Defined Terms. Certain terms used in this Agreement have defined meanings, which are provided in Section 15, and in other Sections herein. Definitions of specifically defined terms (appearing in quotation marks and capitalized where defined herein) shall apply whether or not the term is capitalized. 2. Term; Automatic Renewal; Termination; Opportunity to Cure. The "Initial Term" of this Agreement shall be a period of 12 months commencing upon the Effective Date. This Agreement shall automatically renew at the end of the Initial Term for subsequent terms (each a"Renewal Term") each of twelve (12) months thereafter, unless either party gives the other not less than thirty (30) days written notice of termination prior to the termination of the Initial Term or then-current Renewal Term. A party shall be considered in default under this Agreement only if the party, thirty (30) days after receiving written notice from the other party identifying with reasonable specificity a material failure to comply with any term or condition contained herein (including without limitation Licensee's failure to pay any fees or charges due under this Agreement or any related License Agreement or service agreement, and including Licensor's breach of the limited warranty provided in Section 11), has not cured such failure or breach. In the event that Licensee is in default under this Agreement, Licensor in its sole discretion may elect to terminate this Agreement or to place Licensee's Maintenance Agreement on hold until such default is cured. In the event that this Agreement is placed on hold pursuant to the preceding sentence, Licensee will be charged a Reconnection Fee pursuant to Section 8. 3. Scope of Maintenance. During the term of this Agreement, Licensor agrees to provide"Basic Maintenance Services" in support of the Software. Basic Maintenance Services shall consist of: a. Unlimited Support Services. Licensor will supply a toll free line plus Internet access into support to answer questions and help resolve issues not related to error corrections as defined below. Error Correction. Licensor will use all reasonable diligence to correct verifiable and reproducible errors that are reported. In an emergency situation (e.g. Licensee makes Licensor aware that the system is unavailable in a"live" production environment such as the inability to issue Payroll checks, process ACH transmission, issue Utility Bills etc.) Licensor's goal is to assign resources immediately to begin work on correcting the error. For non- emergency situations (The error impedes but does not prevent the use of one or more essential or non-essential functions) Licensor's goal will be to provide an error correction as soon as possible. The Error Correction, when completed, may be provided in the form of a "temporary fix," consisting of sufficient programming and operating instructions to implement the Error Correction. b. Telephone/Modem Support. Licensor shall maintain a telephone and modem support line, or DSL Internet connection, or T1 connection to the Internet during normal business hours (7AM to 8 PM Central Time) Monday through Thursdays and 7 AM to 7 PM Fridays), excluding major national holidays, that permits Licensee to report Errors in the Software and to receive assistance in cases of operator error. Licensee agrees to provide and maintain a means for Licensor to remotely access and maintain the Applications as installed on Licensee's computers or networks. The current list of supported means of this access is available from Licensor Software,but will include either a modem and dedicated modem telephone line, or an Internet connection of 128Kb, or faster, with a dedicated, static IP address. Licensee SPRINGBROOK MAIN"I'ENANCE AGREEMENT Page 2 of I I agrees to provide and maintain an Internet connection of 128Kb, or faster, for accessing Software updates and information from the Springbrook Software web site. In order to serve Licensee properly, Licensor requires that the modem be located physically in the server, not in a workstation on Licensee's network. Licensor reserves the right to bill hourly (following Licensee's approval) for maintenance in cases of repeated operator error, or where a single operator error results in extensive Licensor time to resolve the problem. c. Changes in State and Federal Regulations. Licensor will provide updates needed to conform to state and federal regulations, including changes to tax tables and routine forms, as changes become effective. Maintenance services under this Agreement do not include updates to conform to any changes in local governmental regulations, including without limitation changes in utility billing rates, reports or methods. d. Routine Releases. Licensor may, from time to time, issue routine Releases of the Software, containing Error Corrections and minor Enhancements to Licensees who have maintenance agreements in effect. Installation of routine releases is provided at no charge to Licensee if completed over the modem. Installation of routine releases and updates by Licensor at Licensee's site will be billed to Licensee at the then current hourly rate except in cases where Licensor is solely responsible for the inability to provide modem support. e. Major Enhancement Releases. Licensor may, from time to time, offer Major Enhancements to Licensee, and reserves the right to assess an additional charge. To the extent Licensor offers such Major Enhancements, it shall permit Licensee to obtain one copy of each Major Enhancement for each copy of the Software or Application being maintained under this Agreement at the discount then specified by Licensor. The Application Software for Licensor's next major release (Version 7.0, .NET technology) will be provided at no additional charge to Licensee. Licensee acknowledges and agrees that enhancements provided by Licensor pursuant to this agreement may require additional professional services (e.g. Training of Licensee's end-users, Project Management, Conversion etc.) Licensor is able to provide these services at then current rates plus any expenses. 4. Exceptions. The following matters are not covered by, and are outside the scope of, Basic Maintenance Services: a. Onsite support services provided by employees or agents of Licensor; b. Training, file and data conversion costs, and consulting services (whether onsite or offsite); SPRINGBROOK MAINTENANCE AGREEMIN I Page 3 oI I I c. Maintenance or support services resulting from any problem resulting from Licensee's deliberate misuse, alteration (including local reports written by the Licensee), or damage of the Software; d. Support of operating systems; support of non-Licensor software (including but not limited to spreadsheets, word processors, general office software, and report builders (including the Progress Report Builder)); e. Onsite installation and management services for Upgrades or Major Enhancements; f. Providing Internal Controls and/or balancing Licensee's books; g. Any training, consulting, implementation management services, and data conversion services, required on an individual Licensee basis for Upgrades or Major Enhancements (whether onsite or offsite); h. Any set up, support for and maintenance of additional production databases (whether onsite or offsite); i. Travel (including travel time) and living expenses for installation and training, or any other Onsite support or services; j. New Product Release license and service fees. 5. Cooperation of Licensee. Licensee agrees to notify Licensor promptly following the discovery of any Error. Further, upon discovery of an Error, Licensee agrees, if requested by Licensor, to submit to Licensor a listing of output and any other data that Licensor may require in order to reproduce the Error and the operating conditions under which the Error occurred or was discovered. Licensor shall treat any such data as confidential. 6. Fees and Expenses. The Initial Term"Maintenance Fees," as set forth on Attachment A, will be invoiced and payable as set forth on Attachment A, for Basic Maintenance Services. Maintenance Fees for each Renewal Term will be invoiced approximately ninety (90) days in advance of the commencement of each Renewal Term, but in any event payable upon commencement of the Renewal Term. Maintenance Fees will apply to support or the Software and to any modifications made thereto if those modifications require support and/or additional programming services during Upgrades. Maintenance Fees for each Application or licensed product are based on a percentage of Licensor's then current License Fee for the Application or licensed product. For Initial Term Maintenance Fees, the rate is twenty percent (20%) for standard Applications and licensed products (meaning, those without Licensee-specific modifications, customizations or Enhancements), twenty-five percent (25%) for all non-standard Applications and licensed products SPRINGBROOK MAINTENANCE AGREEMENT Page 4 of I I (meaning, those including Licensee-specific modifications customizations or Enhancements), and twenty-five percent (25%) for all database manager Applications or licensed products. Maintenance Fees may be modified by Licensor for Renewal Terms,provided that Licensor shall inform Licensee in writing as to any such proposed increase not less than sixty (60) days prior to the commencement of the Renewal Term. a. Fees for Excluded Items. Licensee agrees to pay fees for those items or services excluded from Basic Maintenance Services pursuant to Section 4, when and as the services are rendered and the expenses invoiced, provided, however, that no such additional fees or costs will be invoiced to Licensee without Licensee's prior written approval of the fees, costs, and related work. Licensor shall provide supporting documentation for all expenses upon Licensee's request. Licensor reserves the right to require prepayment or advance deposit for such additional charges or expenses in some instances. Licensee is also responsible for sales or use taxes and state or local property or excise taxes associated with licensing, possession, or use of the Software or any associated services. All fees paid hereunder are nonrefundable and will be forfeited in the event of termination or cancellation except as otherwise specifically provided herein. b. Key Licensee personnel replacement. If key personnel replacement occurs and Licensor recognizes an above average level support, Licensor and Licensee shall attempt to determine the reason for the excess calls or emails. If Licensee and Licensor determine that the excess Telephone or Email Support calls are a result of inadequate training by the Licensee, then the Licensee shall correct the inadequacy by providing additional training through the Licensor at the then current rate plus expenses upon Licensee approval. Licensor offers a variety of training options including, but not limited to, Web-based training, onsite training and free training at Licensor's Portland Training Center to all new department heads and one (1) new primary user in each department on Licensor software applications previously implemented by the Licensee. 7. Work Orders. Licensee may from time to time request from Licensor services, such as Software modifications or additional training. Licensor shall make a reasonable and good faith effort to comply with such requests but shall retain sole discretion to decide whether such services are provided. Licensee shall receive from Licensor in advance an estimate of the cost of requested services. Licensor shall receive for all approved Licensee requests a signed work order from the Licensee and a deposit equal to fifty percent (50%) of the estimated cost of the service. 8. Billing. All invoices from Licensor to the Licensee for any product or service are due upon receipt. Invoices are past due thirty (30) days after the date of invoice. Licensor may, at its option, charge all invoices thirty (30) days and older an interest at a rate of one and one-half percent (11/2%)per month (eighteen percent(18%) per SPRINGBROOK MAINTENANCE A(iRE.EMEN'I Page 5 of I I • annum) or, if less, the highest rate allowed by applicable law from the date such fee or charge first became past due. Invoices are delinquent sixty (60) days after the date of invoice. A delinquent invoice may cause Licensor, at its option, to put the Licensee's account on hold, or, subject to the terms of Section 2, terminate this Agreement. Accounts on hold may receive no product, service, or support from Licensor(including without limitation Basic Maintenance Services) until all past due and delinquent invoices are paid in full. Once an account is placed on hold for non- payment, Licensor shall not be required to provide Basic Maintenance Services, or other products or services, hereunder until a"Reconnection Fee" equal to twenty- five percent(25%) of the current Term's annual Maintenance Fee is paid by Licensee. 9. Use and Restrictions. Error Corrections, Enhancements, Upgrades and New Product Releases (and any other programming provided by Licensor, regardless of its form or purpose) shall be considered part of the Software for purposes of determining the parties' rights and obligations related thereto pursuant to the License Agreement and this Agreement. Licensor shall have sole and exclusive ownership of all right, title and interest in and to such works (including ownership of all copyrights, trade secret rights and other intellectual property rights pertaining thereto), subject to the terms and conditions of the License Agreement. 10. Limited Remedy and Liability; Exclusion of Consequential Damages. The cumulative liability of Licensor to Licensee for all claims relating to any services rendered hereunder, in contract,tort, or otherwise, shall not exceed the total amount of the Maintenance Fees paid by Licensee to Licensor pursuant to this Agreement during the twelve (12) months prior to the claim. In no event shall Licensor be liable to Licensee for any consequential, indirect, special, or incidental damages (including, without limitation, damages for loss of business profits, business interruption, loss of business information, or other pecuniary loss), even if Licensor has been advised of the possibility of such potential loss or damage. The foregoing limitation of liability and exclusion of certain damages shall apply regardless of the success or effectiveness of other remedies, and shall apply to all claims under the warranty described in Section 11. Licensor's liability for breach of warranty exists only during the warranty period set forth in Section 11. 11. Limited Warranty and Exclusions. LICENSOR WARRANTS THAT IT WILL RENDER ITS SERVICES HEREUNDER IN A GOOD AND WORKMANLIKE MANNER, AND THAT DURING THE TERM OF THIS AGREEMENT AND FOR A PERIOD OF SIX (6) MONTHS THEREAFTER LICENSOR, AT LICENSOR'S SOLE COST, SHALL CORRECT ANY FAILURE TO RENDER ITS SERVICES HEREUNDER IN A GOOD AND WORKMANLIKE MANNER. ANY CLAIM BASED ON THE FOREGOING WARRANTY MUST BE SUBMI'1I'ED IN WRITING TO LICENSOR SPECIFYING THE FAILURE IN REASONABLE DETAIL, AND SHALL BE SUBJECT TO THE NOTICE AND CURE PROVISIONS OF SECTION 2. LICENSEE AGREES THAT THE FOREGOING LIMITED WARRANTY IS IN LIEU OF ALL OTHER SPRINGBROOK MAINTENANCE AGREEMENT Pare 6 of I I WARRANTIES OF LICENSOR AND LICENSOR DISCLAIMS ALL OTHER WARRANTIES,EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS OR ADEQUACY FOR ANY PARTICULAR PURPOSE OR USE, QUALITY OR PRODUCTIVENESS, COMPATIBILITY, DESIRED RESULTS, CAPACITY, OR THAT SERVICES RENDERED HEREUNDER WILL BE ERROR-FREE. 12. Venue; Governing Law. This Agreement is made and shall be interpreted, construed, governed, and enforced in accordance with the laws of the State of Florida. Venue for any state action or litigation shall be Brevard County, Florida. Venue for any federal action or litigation shall be Orlando, Florida. 13. Entire Agreement; Construction; Licensor and Licensee Representations. This Agreement is the complete and exclusive statement of the agreement between Licensor and Licensee and supersedes all prior and contemporaneous negotiations, discussions, proposals and understandings, oral, written or implied, including those involving any agent of either party, relating to the subject matter herein. No representations or statements made by either party or either party's agents not expressly set forth or referenced in the Agreement shall be binding on either party. Rights, obligations and warranties under this Agreement extend to Licensee and Licensor only, and no other person shall be considered a third party beneficiary of this Agreement or be otherwise entitled to any rights or remedies under this Agreement. No provision of this Agreement shall be construed in favor of or against any party because one party or its professional advisors participated in the preparation of this Agreement. Licensee represents and warrants that it possesses sufficient mastery of the principles of accounting to use the Software for its intended purpose, and Licensee acknowledges that it is solely Licensee's responsibility to: develop and institute the use of manual and other appropriate controls to validate the accuracy of the data generated by the system and ensure that Licensee's books balance; review proof lists and reports to validate the accuracy of reports and statements; verify that all users of the Software are properly and sufficiently trained and experienced; and verify that a functioning archival system is in place, and that the data base is archived to a removable medium on a daily basis. In the event of a conflict between the Attachments and the main body of this Agreement, the main body of this Agreement shall control. 14. Modification; No Waiver. The terms of this Agreement may only be modified, expanded or added to by a written agreement executed by the parties. No oral communication between the parties or their agents before or after execution of this Agreement shall be binding upon either party unless the parties expressly agree in writing to the terms of such communication. No waiver by either party of any breach of any term or condition hereof shall be effective or enforceable unless made in writing signed by the party, and no waiver shall be interpreted as a continuing waiver or a waiver of any future obligation. 15. Definitions. SPRINGBROOK MAINTENANCE AGREEMENT Page 7 of I I a. Terms Defined in License Agreement. The following terms have that meaning assigned to them pursuant to the Software License Agreement executed by the parties in conjunction with this Agreement(the "License Agreement"): "Application;" "Cure;" "Error;" "Material;" "Specifications;" "Software;" and"User Materials." b. "Enhancement" means a modification or addition that, when made or added to the Software, materially changes its utility, efficiency, functional capability, or application, but that does not constitute solely an Error Correction, and does not constitute a New Product Release. Licensor may designate Enhancements as "Major Enhancements" or simply as "Enhancements," depending on Licensor's assessment of their value and of the function added to the Software or Application. "Major Enhancement" may be a substantial rewrite of an Application, similar to a New Product Release, or may be additional functionality benefiting only certain licensees rather than all licensees as a whole, and requiring those Enhancements to be packaged as a separate module. c. "Error Correction" means either a modification or addition that, when made or added to the Software, brings the Software into Material conformity with its published specifications, or a procedure or routine that, when observed in the regular operation of the Software, avoids the practical adverse effect of such nonconformity. d. "New Product Release" means either the total rewrite of an Application or new version(s) of the Software (including, without limitation, offering of an Application in a new language), the offering of new suites of Applications or databases, generally packaged as a separate module, and which may incorporate Error Corrections and/or Enhancements. A New Product Release shall be distinguished from an Enhancement by Licensor's determination, based on Licensor's assessment of the New Product's value and of the function added to the Software or an Application. e. "Temporary Fix" means an initial correction or"fix"to a problem in the Software prior to the release of an Error Correction. f. "Upgrade" has substantially the same meaning as "Enhancement." SPRINGBRLOK MAIM ENANCE AGREEMI1N'1 Page 8 of I I IN WITNESS WHEREOF, each of the parties hereto has caused this Agreement to be executed in duplicate by its duly authorized officer or representative. LICENSOR LICENSEE By: By: Name: 14,i _ '/ ' CC, Name: Signatu•. __ / Signatu = % - /r y Title:c--27 G pTitle: G/7"2' /11. Date(-4?-ix ��Q , 20 r7 Date: 6// , 20 LICENSEE By: Name: .a 1. 3 _• Signature: • • n Title: CAA/ oce Date: te I I , 20 d 7 SPRINGBROOK MAINTFNANCE: AGRII:ME M Page 9 of I I ATTACHMENT A: SCHEDULE OF FEES Attachment A contains the price quote issued to Licensee showing the applications and corresponding first year maintenance/support service fees, as well as a schedule of payment terms for these maintenance/support services. Please note that these fees are for one full year. By signing the Attachment A, Licensee is agreeing to this Schedule of Fees. May 10,2007 k o0 �" pri ngr Com... Annual Maintenance Costs for City of Cape Canaveral, FL 1st 1�iM�r Finance Suite $2,460 Purchase Orders $800 Payroll $1,560 Human Resources $1,200 Fixed Assets $1,200 Central Cash Management $1,200 Licenses and Permits $1,200 Progress RDBMS by Progress Software $825 SOW~::'''r•r .'v' "s n '' "x" °' ;� Total Concurrent Users = 6 Prices valid for 90 days *Springbrook Maintenance is generally prorated to align with your fiscal year. Progress Maintenance Fees are at time of contract signing. First year Progress maintenance will be due with signed contracts and each year thereafter. Licensor software maintenance will be due and payable six months after contract signing with subsequent years' maintenance due each year thereafter. Additional maintenance will be charged on all custom modifications performed and supported by Licensor By my signature below, I confirm that I have read, understand and agree to this Attachment A to theSoftware Maintenance Agreement, Schedule of Fees: Signatut .- ✓ Name: Date: /j0 ? SPRINGBROOK MAIN I PENANCE AGREEMI'N'I Pare 10 of 11 A.1. ADDITIONAL SERVICE FEES After hours support $ 150/hr Maintenance contract covers support from 7AM to 8 PM Central Time Monday through Thursdays and 7 AM to 7 PM Fridays On Site Installation $ 150/hr Network & Operating System Consulting $ 150/hr (Answering questions and assisting users and/or their consultants with all aspects of hardware, networks, and operating systems - includes installation, set-up, and troubleshooting.) Training (Note: Report Writing is billed at$150/hr) $ 150/hr (The training necessary for the average user has been included with the project total above - additional one-on-one training, if requested, shall be billed at$150/hr. Training is held in the Portland, Oregon Training Center, or on site.) Travel Time (billed one way) $ 100/hr (For on site services) Travel Expenses Billed as Incurred An estimate of travel expenses for initial training and implementation management has been provided within Section A of this document. Telephone training $ 100/hr Weekend/After Hours Training On-site rate $ 200/hr Telephone rate $ 200/hr Support Not Under Maintenance $ 250/hr Examples include but are not limited to: Providing Support on PC-based applications, Non-contracted bank-of-hour support of 3rd Party products that City staff integrates with our data GIS, Imaging etc. (Minimum charge per 30 minute call.) NOTE: Senior Managers/Programmers/CPA's $ 200/hr These are current rates for services and are subject to change within twelve months of executed date of this contract. SPRINGBROOK MAIN"FENANCF AGREI MI N'IPage I I of I I