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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
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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