CONTRACT 2774 Maintenance and Repair Agreementw 7
SOFTWARE MAINTENANCE AGREEMENT
i . INTRODUCTION.
Progressive Solutions, Incorporated, a California corporation herein after referred
to as "Licensor" and City of El Segundo, a municipal corporation, herein after referred to
as "Licensee" agree to the following terms and conditions.
II. NATURE AND DURATION OF SUPPORT.
Licensor is in the business of providing software support services, Licensee
desires to obtain software support services for the Licensed software specified in section
V. This Agreement provides for service only during normal business hours and shall
expire one -year from the date of installation unless renewed as set forth below. The
second year software support fee will be prorated from a date one -year from the date the
corresponding Software License Agreement was executed to the following September
30th. Issuance of a purchase order for annual support fees for any subsequent year will
result in the automatic renewal of this Agreement for an additional year.
i I I . LICENSEE'S RIGHTS AND OBLIGATIONS
A. Licensee during the term of this Software Maintenance Agreement,
hereinafter referred to as `Software Support', will designate one employee as a primary
contact for each software system. Additional contacts may be designated up to the
number defined under Section V., These `Software Support' contacts should know the
system, use the system, and be responsible for the results of the system. These persons
shall also provide the initial interface with Licensor's support personnel, accept software
updates and arrange for software update installation. Licensee accepts and understands
that if software upgrades are not installed within six (6) months from receipt or within six
(6) months from the release date whichever is earlier, Licensor will be under no
obligation to continue any `Software Support' services.
B. Licensee agrees to provide and implement corrections to known software
problems, which have been identified as necessary by Licensor. Failure of Licensee to
implement those identified software corrections provided by Licensor shall relieve
Licensor from any and all `Software Support' responsibilities. In such event, any
subsequent services will only be provided on an emergency time and materials basis.
C. Licensee agrees to maintain working remote access (via Symantec's
pcANYWHERE and a secure remote access server) to the licensed software and data. In
addition, Licensee agrees that the designated workstation shall meet the following
minimum requirements: Pentium 100 or faster processor, Windows 95/98/NT or any then
currently supported versions thereof, and completed installation of (licensed software and
Microsoft Access). In the event Licensor deems such access necessary, Licensor shall
request confirmation that such access is available. Upon receipt of such confirmation,
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Licensor shall attempt remote access. If remote access is not functional despite
Licensee's confirmation of functional remote access, Licensor shall provide remote
access verification services free of charge for one time during each annual agreement. In
the event remote access is not and will not be available in the course of Licensor's
attempts to provide `Software Support' services, Licensee understands that Licensor's
ability to provide support will be severely limited. Should Licensee desire emergency
support, on -site support services are available at Licensor's current support rate plus
expenses for each partial or full day required to provide `Software Support' services.
D. Licensee understands and acknowledges that network performance is
solely the responsibility of Licensee, Should any questions arise as to whether a
performance issue is software or network related, Licensee agrees to isolate the
appropriate workstations and servers on one hub and to test the Licensed software in an
environment totally separate from any and all other network communications. Requests
for performance troubleshooting in which Licensor collects factual data and subsequently
presents a determination that performance issue(s) is /are network related will be billed at
the rates in effect at the time of service.
E. Licensee assumes any and all responsibility and liability for any
modification to the Licensed software not made by Licensor. If an error condition is not
a Licensed software error or that the error condition results from a Licensee modification
to the Licensed software, Licensee agrees to pay Licensor for reasonable services
necessary to correct the error at the rates in effect at the time of service plus reasonable
expenses.
IV. LICENSOR'S RIGHTS AND OBLIGATIONS
A. During the term of this agreement, Licensor shall provide Licensee with
unlimited telephone support services relating to software fixes and the dissemination of
workaround solutions. In addition, Licensor shall provide Licensee with any updates
and/or minor enhancements to Licensed software, which may become available from
Licensor without additional charge. For multi -user Licenses, Licensor will send one copy
of the digital media (the licensed application) per release cycle to Licensee's designated
representative. This person will distribute copies of the Licensed software to those
responsible for any additional Licensed computer systems.
B. During the term of this agreement, Licensor shall provide Licensee with
limited voice, facsimile, modem, and mail communications as appropriate for training
related support. Training support is defined as providing information to current and
prospective users of the Licensed software on operational or functional aspects defined in
the current user documentation. This support shall be provided to the person designated
by Licensee (or an alternate in the absence of the designated caller). The designee shall
know the Licensed software, use the Licensed software and be responsible for the results
of their efforts. Training related support in excess of fifteen (15) minutes per call will be
billed at the rate in effect at the time of service. Prior to and as a condition of Licensor's
right to bill for training services, Licensor shall inform Licensee that the free training
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support is over and that any additional training will be billable. Licensor reserves the
right to limit the number and the duration of these communications.
C. Nothing contained in this Agreement shall be construed to obligate
Licensor to provide any services whatsoever subsequent to the expiration of this
Agreement or any subsequent renewals of this Agreement. Upon expiration of this
Agreement, Licensee may purchase continued `Software Support' services on an annual
basis. The price(s) specified in section V are the current price(s) for `Software Support'
services and such prices(s) shall be in effect, and shall not be increased, through
September 30, 2001. Licensor reserves the right to change the annual software support
prices(s) after September 30, 2001. Licensor agrees to provide at least 30 days prior
written notification prior to implementation of any fee change. Any fee change shall not
be effective until the first day of any annual extension.
D. Insurance Requirements. Licensor shall provide and maintain insurance
acceptable to the City Attorney in full force and effect throughout the term of this
Agreement, against claims for injuries to persons or damages to property which may arise
from or in connection with the performance of the work hereunder by Lisensor, its
agents, representatives or employees. Insurance is to be placed with insurers with a
current A.M. Best's rating of no less than A:VII. Licensor shall provide the following
scope and limits of insurance.
Minimum Scope of Insurance. Coverage shall be at least as broad as:
(1) Insurance Services Office form Commercial General Liability
coverage (Occurrence Form CG 0001).
(2) Insurance Services Office form number CA 0001 (Ed. 1187) covering
Automobile Liability, including code 1 "any auto" and endorsement CA
0025, or equivalent forms subject to the written approval of the City.
(3) Workers' Compensation insurance as required by the Labor Code of
State of California and Employer's Liability insurance and covering all
persons providing services on behalf of the Licensor and all risks to such
persons under this Agreement. (Not needed if Self- employed with no
employees.)
(4) Errors and omissions liability insurance appropriate to the Consultant's
profession.
Minimum Limits of Insurance. Licensor shall maintain limits of insurance
no less than:
(1) General Liability: $1,000,000 per occurrence for bodily injury,
personal injury and property damage. If Commercial General Liability
Insurance or other form with a general aggregate limit is used, either the
general aggregate limit shall apply separately to the activities related to
this Agreement or the general aggregate limit shall be twice the required
occurrence limit.
(2) Automobile Liability: $1,000,000 per accident for bodily injury and
property damage.
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(3) Workers' Compensation and Employer's Liability: Workers'
Compensation as required by the Labor Code of the State of California
and Employers Liability limits of $1,000,000 per accident.
(d)..Errors and Omissions Liability: $1,000,000 per occurrence.
Other Provisions. Insurance policies required by this Agreement shall
contain the following provisions:
(1) All Policies. Each insurance policy required by this paragraph shall
be endorsed and state the coverage shall not be suspended, voided,
canceled by the insurer or either party to this Agreement, reduced in
coverage or in limits except after 30 days' prior written notice by Certified
mail, return receipt requested, has been given to the City.
General Liability and Automobile Liability Coverages.
(1) City, its officers, officials, and employees and volunteers are to be
covered as additional insureds as respects: liability arising out of activities
Licensor performs, products and completed operations of Licesor;
premises owned, occupied or used by Licensor, or automobiles owned,
leased or hired or borrowed by Licensor. The coverage shall contain no
special limitations on the scope of protection afforded to City, its officers,
officials, or employees.
(2) Licensor's insurance coverage shall be primary insurance as respect to
City, its officers, officials, employees and volunteers. Any insurance or
self insurance maintained by City, its officers, officials, employees or
volunteers shall apply in excess of, and not contribute with, Licensor's
insurance.
(3) Licensor's insurance shall apply separately to each insured against
whom claim is made or suit is brought, except with respect to the limits of
the insurer's liability.
(4) Any failure to comply with the reporting or other provisions of the
policies including breaches of warranties shall not affect coverage
provided to the City, its officers, officials, employees or volunteers.
Workers' Compensation and Employer's Liability Coverage„ Unless the
City Manager otherwise agrees in writing, the insurer shall agree to waive
all rights of subrogation against City, its officers, officials, employees and
agents for losses arising from work performed by Licensor for City.
Other Requirements. Licensor agrees to deposit with City, at or before the
effective date of this contract, certificates of insurance necessary to satisfy
City that the insurance provisions of this contract have been complied
with. The City Attorney may require that Licensor furnish City with
copies of original endorsements effecting coverage required by this
Section. The certificates and endorsements are to be signed by a person
authorized by that insurer to bind coverage on its behalf. City reserves the
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right to inspect complete, certified copies of all required insurance
policies, at any time.
(1) Licensor shall funvsh certificates and endorsements from each
subcontractor identical to those Licensor provides.
(2) Any deductibles or self-insured retentions must be declared to and
approved by City. At the option of the City, either the insurer shall reduce
or eliminate such deductibles or self - insured retentions as respects the
City, its officers, officials, employees and volunteers; or the Licensor shall
procure a bond guaranteeing payment of losses and related investigations,
claim administration, defense expenses and claims.
(3) The procuring of such required policy or policies of insurance shall
not be construed to limit Licensor's liability hereunder nor to fulfill the
indemnification provisions and requirements of this Agreement.
V . SUPPORT FEES AND PAYMENTS
Payment of the annual fee for `Software Support' services shall be processed
beginning the first day of October of that City of El Segundo fiscal year and shall be
delinquent if payment is not tendered within thirty (30) days thereafter unless Licensee
notifies Licensor of any unusual delays.
License Tract for Windows -4 $4,745 + Tax with first year of support provided
concurrent Users at no fee.
vi. GENERAL PROVISIONS
A. The Licensed software is subject to design and operational changes to
allow for the use of new technologies and to correct known bugs as they are brought to
the attention of the Licensor, either by the Licensees own quality - control mechanisms or
by the Licensee. Correction of known bugs shall be at Licensor's expense.
B. Licensee acknowledges that the Licensed software is of such complexity
that it may have inherent defects and agrees that as Licensees sole liability for such
inherent defects and as Licensee's sole remedy for such inherent defects, Licensor will
provide (at Licensor's sole and exclusive expense) during the term of this Agreement, all
reasonable maintenance services to correct documented programming or documentation
errors reported by Licensee which are caused by a defect in an unaltered version of the
delivered Licensed software.
C. Licensee acknowledges that annual software maintenance is designed to
ensure quality support for all users of both Licensed software and forms designed, created
and/or maintained by Licensor as part of the released software. Licensor utilizes
Seagate's Crystal Report WriterTM to create most reports and forms. To ensure maximum
flexibility, customers are provided with the option to design, create and maintain
additional forms, mailings, and/or reports. Licensor's annual software maintenance does
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specifications, requested or suggested by either party, shall be made except by written agreement of both
parties.
H . In the event that any one or more of the provisions contained in this Agreement should be
found to be invalid, illegal, or unenforceable in any aspect, the validity, legality, and enforceability of the
remaining provisions contained herein shall not in any way be affected or impaired thereby.
XII . LICENSED SOFTWARE
Product Name License Fee
License Track for Windows -4 Concurrent Users $22,410 + Tax
XIII. EXECUTION
This agreement shall become effective on the date it is fully executed.
Licensor:
PROGRESSIVE SOLUTIONS, INC.
P. O, BOX 783
BREA, CA 92822
Vt
uthorized Representative
(714) 671 -1597
ATTEST__ - .. .
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APPROVED AS TO FORM:
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Licensee:
CITY OF EL SEGUNDO
350 MAIN ST.
EL SEGUNDO, CA 90245
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