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HomeMy WebLinkAbout03-28-2017 Agreement between Slo City and IntelliTime Systems CorporationAMENDMENT TO AGREEMENT (SPECIFICATION NO. 91006-11) �jj �y THIS AMENDMENT TO AGREEMENT is made and entered in the City of San Luis Obispo on 44- �4� (�p�{ 4 AA(C ,AOI ; by and between the CITY OF SAN LUIS OBISPO, a municipal corporation, herein after referred to as ! City, and IntelliTime Systems Corporation, hereinafter referred to as Contractor. WITNESSETH: WHEREAS, on June 21, 2010 the City entered into an Agreement with Contractor for replacement timecard software per Specification No. 91006-B; and WHEREAS, the City desires to amend the scope of services to hosting services and Contractor has submitted a proposal for this purpose that is acceptable to the City. NOW THEREFORE, in consideration of their mutual promises, obligations and covenants hereinafter contained, the parties hereto agree as follows: 1. The scope of services and related compensation is hereby amended as set forth in the updated Exhibit H ("Software License, Hosting and Annual Support Agreement) attached hereto. 2. City shall pay Contractor for hosting services as set for in Exhibit C2 ("Payment Schedule for Hosting Services") attached hereto. 2. All other terms and conditions of the Agreement remain in full force and effect. IN WITNESS WHEREOF, the parties hereto have caused this instrument to be executed the day and year first written above. ATTEST: Carrie Gallagher, City Jerk APPROVED AS TO FORM: CITY OF: LUIS ray: Xenia Bradford, Interim Firf *e Director By: Dennis Peters, President IntelliTime Systems Corporation Exhibit H. IntelliTime Svstems Corporation Software License, Hosting and Annual Support Agreement SOFTWARE LICENSE AGREEMENT made this 7 th day of October 2016, by and between Intellitime Systems Corporation, incorporated under the laws of the State of California, USA ("Licensor") and the City of San Luis Obispo, formed under the laws of the State of California "Licensee"). Licensee desires to license certain software programs owned by Licensor for Licensee's own internal use, and Licensor is willing to grant Licensee such a license, subject to the terms and conditions of this Agreement. In consideration of the license fees to be paid hereunder and for other good and valuable consideration, the parties agree as follows: 1. GRANT OF LICENSE . Licensor grants to Licensee and Licensee accepts, on the terms and conditions set forth herein, a nontransferable, nonexclusive right to use the software programs identified on the attached Exhibit D. ("Programs") and the accompanying end user documentation (the "Documentation"; the Programs and the Documentation are collectively referred to herein as the "Software"). Each copy of a Program licensed under this Agreement may only be installed and used on one server at a time, and the Program may only be accessed at any one time by the number of users for which Licensee has paid a license fee. Additional Software may be added to this Software License Agreement through additional Schedules approved by both Licensor and Licensee. 2. DELIVERY AND PAYMENT . Licensor shall supply the number of copies of each of the Software listed on the attached Exhibit D. and Licensor will invoice Licensee for the License Fees indicated on the attached Exhibit D.. License Fees are exclusive of shipping charges and any federal, state, provincial or local taxes, including any VAT or other withholdings, imposed on this transaction, the License Fees, or on Licensee's use or possession of the Software, all of which shall be paid by Licensee without deduction from the License Fees. Licensee agrees to pay any invoice in full within 30 days of receipt. All prices and payments are in U.S. dollars unless otherwise indicated. 3. USE OF THE SOFTWARE. 3.1. Re,st_rictions on Use . The license granted by Licensor to Licensee to use the Software is subject to the following restrictions: 3.1.1 The Software may be used only by Licensee for its internal business purposes and only for the direct benefit of Licensee. 3.1.2 The Software may be used at any point in time only by the number of persons for whom a license fee has been paid, as specified on Exhibit D.; all such use may only be by those persons using the Software for the benefit of Licensee in the course and scope of their employment. Licensee shall be provided with a security code to permit use of the Software by the number of users for whom a license fee has been paid. Exhibit H. IntelliTime Systems Corporation 3.1.3 Licensee shall use the Software only in its original form, and shall not modify, reverse compile, reverse engineer, disassemble, or translate the Software, except to the extent necessary to permit interoperability between the Software and other software programs, nor shall Licensee create any derivative works or otherwise use the Software except as specifically permitted in this Agreement. 3.1.4 Licensee shall not rent, lease, sublicense, allow access to, or transfer the Software to any other party, by operation of law or otherwise. 3.1.5 Licensee will not export or re-export the Software without first having obtained the appropriate United States or foreign government export licenses; provided, however, that in no event may Licensee export the Software to any country to which export is prohibited by the United States, or to any country which is not a member of either the Universal Copyright Convention or the Berne Convention (a "Member Country"); provided, that any export to a Member Country is only permitted if such Member Country recognizes copyright protection for software. 3.2. Security Devices . Upon delivery of the Software, Licensor will provide to Licensee one or more authorization codes, which codes will allow the Software to be activated and to allow as many users as for which Licensee has purchased licenses to use the Software. Upon payment of additional license fees, Licensee shall be provided with one or more additional authorization codes that will allow for additional users. Licensee will not attempt to defeat, modify, copy, work around or duplicate any security devices protecting the Software. 3.3. Proprietary Rigfjts . The Software is copyrighted material under the laws of the United States and international treaty provisions. Notwithstanding the copyright, the Software contains trade secrets and confidential information of Licensor. Licensee may make a reasonable number of copies in machine-readable form of the Program which is part of the Software, provided that the copies are used only for back-up or archival purposes and that all copies contain the original copyright notice and all proprietary legends. In addition, Licensee may make the same number of copies of the Documentation as the number of concurrent users for which Licensee has paid a license fee; provided that all copies of the Documentation contain the original copyright notice and all proprietary legends. No other copies may be made of the Software, the Documentation or any part thereof, except as specifically permitted herein. 3.4. Protection of Software . Licensee acknowledges that Licensor represents that the Software and all copies of it, regardless of the form or media in which the original or copies may exist, are the sole and exclusive property of Licensor. Licensee further acknowledges that Licensor represents that the Software, including the source and object codes, logic and structure, constitute valuable trade secrets of Licensor. Licensee agrees to secure and protect the Software consistent with the maintenance of Licensor's rights in the Software, as set forth in this Agreement. Except as expressly permitted herein or as otherwise required by law, Licensee agrees not to disclose or otherwise make available any part of the Software to any third party on any basis. By accepting this License, Licensee does not become the owner of the Software; Licensor retains all right, title and interest in and to the Software. This section shall survive any termination of this Agreement. Exhibit H. IntelliTime Systems Corporation 4. TERM OF AGREEMENT 4.1. Term and Termination.. This Agreement is effective from the date on which Licensor accepts it after execution by Licensee, and shall remain in effect until terminated. Licensee may terminate this Agreement: (a) at any time upon written notice to Licensor or (b) thirty (30) days after written notice to Licensor in the event that Licensor breaches any provision of this Agreement and has not cured such breach within the thirty (30) day period. Licensor may terminate this Agreement: (a) at any time upon written notice to Licensee in the event of any breach of Section 3 hereof or (b) thirty (30) days after written notice to Licensee in the event that Licensee breaches any provision of this Agreement other than Section 3 hereof and has not cured such breach within the thirty (30) day period. 4.2. Actions to be Taken Upon Termination_. Upon termination Licensee shall immediately discontinue use of and return all complete or partial copies of Software, in whatever form or media, and shall delete the Software from its computer libraries. 4.3. Effect of Termination . Termination of this Agreement shall not bar Licensor from seeking any other remedy it may have available against Licensee for breach of the Agreement. Licensee shall hold Licensor harmless for any loss or other consequences of a termination of the License under this Article 4. S. WARRANTY. 5.1. Limited Warranty . Licensor warrants that the Programs licensed to Licensee hereunder, if properly installed and used, shall materially conform to the specifications set forth in the accompanying Documentation for a period of three (3) months from the date of shipment of the Software to Licensee (hereinafter the "Warranty Period"). Licensee shall promptly notify Licensor in writing upon the discovery of any non-conformance. Licensor shall correct any such non-conformance of which it has been properly notified within the Warranty Period, through the means it determines to be most appropriate, whether by telephone instructions, the issuance of updating documentation, corrective code, or other methods. Any replacement of Software shall be effected only after the return of the non- conforming Software to Licensor. 5.2. Notwithstanding the warranty provisions above, Licensor shall have no warranty obligations with respect to any part or parts of the Software which have been damaged in transit or by improper installation or operation, or by misuse, abuse or negligent use or repair or alteration or improper storage or which have been damaged by use which does not conform to the specific or general instructions of Licensor or to the provisions of the Documentation, or if Licensee or any third party has modified or attempted to modify the Software or if the damage has occurred due to causes external to the Software, or if the Software has been subjected to an extreme power surge or electromagnetic field, whether or not through the fault of Licensee, or if Licensee has refused to implement software changes recommended by Licensor. 5.3. THE WARRANTY SET FORTH ABOVE SHALL BE EXCLUSIVE AND IN LIEU OF ALL OTHER LIABILITIES, OBLIGATIONS, CONDITIONS AND/OR WARRANTIES, Exhibit H. IntelliTime Systems Corporation EXPRESSED OR IMPLIED (INCLUDING BUT NOT LIMITED TO ANY IMPLIED AND/OR STATUTORY WARRANTIES OR CONDITIONS OF MERCHANTABILITY, NONINFRINGEMENT AND FITNESS FOR A PARTICULAR PURPOSE, AS WELL AS ANY IMPLIED AND/OR STATUTORY WARRANTIES ARISING FROM THE COURSE OF PERFORMANCE, COURSE OF DEALING, OR USAGE OF TRADE), AND LICENSEE HEREBY WAIVES ALL OTHER RIGHTS, OBLIGATIONS AND/OR WARRANTIES AND ASSUMES ALL RISKS AND LIABILITIES IN RESPECT THEREOF. LICENSOR MAKES NO WARRANTY THAT THE OPERATION OF THE SOFTWARE WILL BE ERROR FREE OR WITHOUT INTERRUPTION. LICENSOR DOES NOT WARRANT THAT THE SOFTWARE SHALL OPERATE WITH ANY HARDWARE OR SOFTWARE OTHER THAN AS SPECIFIED IN THE DOCUMENTATION 6. LIMITATION OF LIABILITY. IN NO EVENT SHALL LICENSOR BE LIABLE FOR ANY LOSS OF OR DAMAGE TO REVENUES, PROFITS OR GOODWILL OR OTHER SPECIAL, INCIDENTAL, INDIRECT AND CONSEQUENTIAL DAMAGES OF ANY KIND, RESULTING FROM ITS PERFORMANCE OR FAILURE TO PERFORM PURSUANT TO THE TERMS OF THIS AGREEMENT OR ANY OF THE ATTACHMENTS HERETO, OR RESULTING FROM THE FURNISHING, PERFORMANCE, OR USE OR LOSS OF ANY SOFTWARE OR OTHER MATERIALS DELIVERED TO LICENSEE HEREUNDER, INCLUDING WITHOUT LIMITATION ANY INTERRUPTION OF BUSINESS, WHETHER RESULTING FROM BREACH OF CONTRACT OR BREACH OF WARRANTY OR OTHERWISE, EVEN IF LICENSOR HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. Notwithstanding anything herein to the contrary, the maximum aggregate amount of money damages for which Licensor may be liable to Licensee under this Agreement, resulting from any cause whatsoever, shall be limited to the amounts actually paid by Licensee to Licensor under this Agreement. 6.1 Patent and Copyright Infringement - To the extent of any limited liability expressed in the contract, IntelliTime Systems Corporation agrees to indemnify, defend, and hold harmless, not excluding the Licensee' right to participate, the Licensee from any and all claims, actions, damages, liabilities, costs, and expenses, including reasonable attorney's fees and expenses, arising out of any claims of infringement by the contractor of any United States Patent or trade secret, or any copyright, trademark, service mark, trade name, or similar proprietary rights conferred by common law or by any law of the United States or any state said to have occurred because of systems provided or work performed by IntelliTime Systems Corporation, and, IntelliTime System Corporation shall do what is necessary to render the subject matter noninfringing in order that the Licensee may continue its use without interruption or otherwise reimburse all consideration paid by the Licensee to IntelliTime Systems Corporation. 7. SUPPORT AND MAINTENANCE TERMS AND CONDITIONS. 7.1. Provision of Support and Maintenance . Licensee may elect to purchase support and maintenance for the Software as described in this Section 7 by paying Licensor the applicable Maintenance Fees described herein. 7.2. Term of Main . Licensor agrees to provide Maintenance (as defined herein) to Licensee pursuant to the terms and conditions set forth herein provided that Licensee pays the Maintenance Fee for each Software product for which Exhibit H. IntelliTime Systems Corporation Maintenance is desired as further described in Section 7.6 below. The remaining portion of the calendar year after the effective date of this Agreement is the first "Maintenance Period" hereunder; each one-year period thereafter beginning on January 1 during the term of this Agreement for which Licensee has paid the applicable Maintenance Fee is a subsequent "Maintenance Period." 7.3. Maintenance Services . In exchange for the Maintenance Fee, Licensor agrees to provide to Licensee during the term of this Agreement support and maintenance (collectively "Maintenance") as follows: 7.3.1. Support - - Licensor will provide telephone support to Licensee for current versions of the Software between the hours of 6:30 a.m. and 5:30 p.m., PST, Monday through Friday, excluding holidays. Licensor will investigate all questions and problems of Licensee promptly. Licensee agrees to provide adequate information to Licensor to assist in the investigation and to confirm that any problems have been resolved. 7.3.2. Maintenance -- Licensor will supply to Licensee, at no additional charge, any improvements, upgrades, or modifications to the Software that Licensor makes generally available. Any such improvements, upgrades, or modifications shall become part of the Software for all purposes of this Agreement. Licensor will provide to Licensee under this agreement Release Notes that document the new features, functionality and maintenance fixes that are available from Licensor. Licensor will Configure, Test and Install the upgrades on the Licensee's IntelliTime Test Server at no additional charge, up to two times per year, as long as a valid paid up Annual Support Agreement is in effect. Licensee will test the upgraded software on Licensee's server including all system functionality and interfaces to Licensee's third party systems. Upon approval that the upgraded software is functional, Licensee will instruct Licensor to install the upgraded software on the Production server. Licensor and Licensee agree to schedule this upgrade to production at a mutually convenient time chosen as much as possible to avoid system downtime during critical processing cycles. 7.3.2 Licensee acknowledges and agrees that the Maintenance to be provided by Licensor hereunder is limited to the most current version of the Software and the immediately preceding version. 7.4. Training . Licensee may purchase training from Licensor at Licensor's then current fees for training. The date and time of the training shall be scheduled by Licensor. All travel, living, and other out-of-pocket expenses incurred by Licensee's employees will be paid by Licensee. 7.5. Exclusions . Licensor's obligation to provide Maintenance is contingent upon proper use of the Software. Moreover, Licensor shall be under no obligation to provide Maintenance should such services be required due to (a) damage occurring in transit; (b) improper installation or operation by Licensee; (c) misuse, abuse or negligent use, repair, alteration or improper storage or any use which does not conform to the specific or general instructions of Licensor or to the provisions of the Documentation; (d) any modification or attempted modification of the Software by Licensee or any third party; (e) causes external to the Software or if the Software Exhibit H. IntelliTime Systems Corporation has been subjected to an extreme power surge or electromagnetic field, whether or not through the fault of Licensee; or (f) Licensee's failure or refusal to implement software changes recommended by Licensor. 7.6. Consideration,_. In payment of the services to be provided by Licensor hereunder, Licensee shall pay Licensor on an annual basis 20% of the then current license fee for each Software program listed on Exhibit D. of this Agreement or such of those Software programs for which Licensee wishes to continue Maintenance ("Maintenance Fee"). Licensor shall invoice Licensee for Maintenance Fees annually, unless either party terminates Maintenance for a subsequent Maintenance Period as provided herein. In addition, Maintenance shall be discontinued for any Maintenance Period for which Licensee fails to pay Licensor's invoice within thirty (30) days after the date of the invoice. All payments to Licensor under this Agreement shall be payable in the U.S. dollars and shall be net of any and all taxes, withholdings, set- offs or deductions of any nature. In the event that, by prevailing laws of the territory in which Licensee operates, any withholding or other tax may become necessary, Licensee shall pay on its own account such taxes directly to the tax authorities of the territory. 7.7. Terrr0nation_.._. In addition to the rights of Licensor to terminate Maintenance for Licensee's failure to pay Maintenance Fees when due, either party may terminate Maintenance hereunder by so notifying the other party at least thirty (30) days prior to the start of any Maintenance Period. Licensor may terminate the Maintenance for any Software provided it notifies Licensee of such termination at least ninety (90) days prior to such termination and it refunds to Licensee a pro -rated portion of the prepaid Maintenance Fee for such Software. Licensor may terminate Maintenance without notice or refund if this Agreement is terminated. Termination of Maintenance hereunder shall not in and of itself terminate this Agreement. S. MISCELLANEOUS PROVISIONS. 8.1. Assignment . Neither this Agreement nor any rights hereunder, in whole or in part, shall be assignable or otherwise transferrable by Licensee, and any purported assignment or transfer shall be null and void. 8.2. Severability_. If any term or provision of this Agreement shall be found to be illegal or unenforceable, then, notwithstanding, it will be enforced to the maximum extent permissible, and the legality and enforceability of the other provisions of this Agreement will not be affected. IT IS EXPRESSLY UNDERSTOOD AND AGREED THAT EACH AND EVERY PROVISION OF THIS AGREEMENT WHICH PROVIDES FOR A LIMITATION OF LIABILITY OR LIMITED WARRANTY IS INTENDED BY THE PARTIES TO BE SEVERABLE AND INDEPENDENT OF ANY OTHER PROVISION AND TO BE ENFORCED AS SUCH. 8.3 Breach . No consent by either party to, or waiver of, a breach of this Agreement by the other party, whether express or implied, shall constitute a consent to, waiver of, or excuse for any other different, continuing, or subsequent breach. 8.4 Entire Agreement . This Agreement and the Schedules and attachments hereto constitute the entire agreement between the parties concerning the Software and supersede all prior agreements, whether written or verbal, between the parties. No purchase order, other ordering document or any other document which purports to Exhibit H. IntelliTime Svstems Coraoration modify or supplement this Agreement or any Schedule or attachment hereto shall add to or vary the terms and conditions of this Agreement unless executed by both Licensor and Licensee. No amendment shall be considered to have been made to this Agreement unless it is in writing and is executed by both of the parties. 8.5 Governing Law . The parties agree that this Agreement shall be governed and construed by the laws of the State of California, USA. Licensee hereby submits to the jurisdiction and venue of the federal courts of the Southern District of California, USA. 9.0 Hosting Services SAAS IntelliTime Systems Corporation provides this SASS subject to the terms and conditions below, which will be fixed for the duration of the initial term of the Service subscription. If a Service subscription is renewed, the version of this SASS that is current at the time the renewal term commences will apply throughout the renewal term. A. Monthly Service Level a. The Service Level is 99.9% (average of 43 minutes month) b. The Monthly Uptime Percentage is calculated for a given calendar month using the following formula: Monthly Uptime Percentage = (Total number of minutes in a given calendar month - Total number of minutes of Unplanned Downtime in a given calendar month) / Total number of minutes in a given calendar month B. Service Resumption a. Should the Service Level fall below 99.9% for a given month, IntelliTime Systems Corporation will take immediate action to correct issues causing the service level violation. b. IntelliTime Systems Corporation will work directly with customers submitting Service Disruption Claims, at no charge, with Service Assistance including dedicated additional processing or data entry that was the result of service disruption. C. Service Disruption Claims a. Customer must provide all reasonable details regarding the Service Disruption Claim, including but not limited to, detailed description of the Incident, the duration of the Incident, the number of affected users and the locations of such users and any attempts made by Customer to resolve the Incident. b. IntelliTime Systems Corporation will use all information reasonably available to it to validate claims and make a good faith judgment on whether the SASS and Service Levels apply to the claim. c. IntelliTime Systems Corporation will use commercially reasonable efforts to process claims within 45 -days. In most cases providing immediate assistance to impacted customers. Exhibit H. IntelliTime Systems Corporation D. Exclusions a. Unplanned Downtime does not include: i. The period of time when the Service is not available as a result of Scheduled Downtime; or iii. The following performance or availability issues that may affect the Service: 1. Due to factors outside IntelliTime Systems Corporation's reasonable control; 2. Related to add-on features for the Service, including, but not limited to customization, unique configurations and bulk data processing; 3. That resulted from Customer's or third party hardware, software or services, including telecom providers; 4. That resulted from actions or inactions of Customer or third parties; 5. Intermittent periods of Unplanned Downtime that are two minutes or less in duration E. Definitions: a. "Service Disruption Claim" means a claim submitted by Customer to IntelliTime Systems Corporation that a Service Level under this SASS has not been met and that a Service Assistance may be due to Customer. b. "Customer" means the person or organization that contracted for Services under the Agreement. c. "Unplanned Downtime" means a period of time when Customers are unable to read or write any service data for which they have appropriate permission. d. "Exclusions" means the performance or availability issues that are noted in Section D. e. "Incident" means a set of circumstances resulting in an inability to meet a Service Level. f. "Monthly Uptime Percentage" is calculated on a calendar month basis (according to the formula set forth in Section A) using data collected about the Service's availability for a given calendar month by activity log analysis store within the IntelliTime Systems Corporation database. g. "Notice" means that within five business days following an Incident, Customer must notify Customer Support of the Incident. h. "Service" or "Services" means the IntelliTime Systems Corporation Online service provided to Customer pursuant to the service agreement. L "Scheduled Downtime" means published maintenance windows or times where IntelliTime Systems Corporation notifies Customer of Exhibit H. IntelliTime Systems Corporation periods of Downtime for scheduled network, hardware, Service maintenance or Service upgrades at least 24 -hours prior to the commencement of such Downtime. On-going published maintenance windows are considered part of advanced notification. j. "Service Assistance" means dedicated no charge assistance to provide processing, data entry or data correction that was the result of the SASS violation. k. "Service Level" means the percentage of Service availability for a given month that IntelliTime Systems Corporation agrees to provide Customer, which is measured by the Monthly Uptime Percentage. IntelliTime Systems Corporation Invoice 1 118 E. 17th Street Santa Ana, CA 92701 dpetersCointeliiti me.com www.lntelliTime.com BILL To City of San Luis Obispo 990 Palm Street San Luis Obispo, CA 93401-3249 INVOICE # DAVE TOTAL DUE DUE ©ATE TERMS ENCLOSED 16-8144 12/21/2016 $15,720.00 01/20/2017 Net 30 ACTIVITY QTY RATE AMOUNT Hosting 12 1,000.00 121000.00T Hosting Services 11/1 12016 through 10/31/2017 5013 24 155.00 3,720.00 Custom Programming Hours, Hosting Setup and Configuration SUBTOTAL 15,720.00 TAX (O%) 0.00 TOTAL 15,720,00 BALANCE DUE $15s720.00