HomeMy WebLinkAboutCoplogic Inc; 2014-02-20;DeskOfficer Online Reporting System (DORS)
SUPPORT AND MAINTENANCE AGREEMENT
THIS SUPPORT AND MAINTENANCE AGREEMENT ("Support and Maintenance
Agreemenf) is made on this 20th day of Febmary, 2014, by and between the City of Carlsbad
located at 1200 Carlsbad Village Drive, Carlsbad, CA 92008, a municipal corporation under the
laws of the state of Califomia ("Licensee") and Coplogic, Inc., an existing Califomia
corporation, whose address is 231 Market Place #520 San Ramon, CA 94583 ("Licensor").
RECITALS
Licensee has obtained a subscription license to use the DeskOfficer Online Reporting System
("Software") for the term of that agreement, more particularly described in the Setup and
Subscription License Agreement of the same date. As a part of the Support and Maintenance
Agreement, Licensor shall provide support and maintenance services for the Software.
SUPPORT AND MAINTENANCE SERVICES
1. Generally. During the duration of this Support and Maintenance Agreement, Licensor shall
provide to the Licensee a subscription license, as well as support and maintenance for the
Software purchased in accordance with the terms of this Support and Maintenance
Agreement and the response time described in Schedule A, attached hereto. Support includes
an annual review of cunent outstanding questions and usage issues at Licensee request; the
provision of new and upcoming releases of updates; and enhancements made to the Software
that the Licensee is licensed to use that are generally made available without additional
charge to other users of the Software with similar support and maintenance contracts. The
parties shall amend Schedule B from time-to-time in the event that the Licensee requests
customizations to the Software.
2. Hours of Support. Licensor will provide the support services during the hours as described in
Schedule A attached hereto.
3. New Releases. Licensor will, from time-to-time issue new releases of the software (Schedule
B), and when it does, it will provide a copy of the release documentation, and/or updated user
or system documentation. If any part of the Licensee's custom code is not part ofthe general
release delivered by Licensor, then Licensor will assist and provide guidance for integrating
the custom code into the new release. Any time taken to modify or repair unauthorized
changes that may require Licensor assistance to modily may be billed at Licensor's then
cunent pricing schedule.
4. Exceptions. Conections for difficulties or defects traceable to the Licensee's enors or
unauthorized changes. Licensee's hardware, or conflicts with other software not identified by
Licensor as compatible or part of the recommended operating environment may be subject to
billing at Licensor's cunent standard time and material charges.
5. Limitations. Licensor may, in its sole discretion, limit or suspend Licensee's access to
support, pursuant to this Support and Maintenance Agreement, where (1) Licensee is in
material default under the terms of this Support and Maintenance Agreement (non-payment
is deemed to be a material default), or (2) Licensee fails to provide adequately trained staff
Coplogic - DORS Support and Maintenance Agreement
to administer the Software. Prior to limiting or suspending support. Licensor will give the
Licensee thirty (30) days written notice of its intention to do so and actively participate with
the Licensee to remedy any such default or failure.
Term. This Support and Maintenance Agreement commences at the earlier of 1) the "go-
live" date of the Software or 2) April 1, 2014, and expires one year after its commencement
date. Within thirty (30) days prior to its expiration. Licensor shall send to the Licensee an
invoice for an annual subscription, support and maintenance fee ("Annual Fee"). The
sending of any such invoice will constitute an inevocable offer to extend the Support and
Maintenance Agreement for the period and fees set forth in the invoice, which may be
accepted by the Licensee in its sole discretion as hereinafter set forth. Termination of the
Support and Maintenance Agreement prior to its expiration shall not result in the refund of
partial service fees.
The Licensee's payment of an Annual Fee in response to an invoice prior to the expiration
date of the Support and Maintenance and Agreement, or within thirty (30) days after the date
of Licensor's invoice, whichever is later, will extend the Subscription, Maintenance and
Support Period for the period of one year from its previous expiration date, or for the period
set forth in the invoice if different.
Adjustments to Terms and Conditions. Licensor may change the Annual Fee and the terms
and conditions of this Support and Maintenance Agreement provided that written notice is
given to the Licensee thirty (30) days prior to the expiration of the cunent term.
COST
Annual Fee. The Licensee shall pay Licensor an Annual Fee for which the Software license
and support is being provided (see Schedule B for base Annual Fee). The Annual Fee for the
first (1st) year is due upon execution of this agreement and will then reoccur on the
anniversary date of the execution of this agreement for each year thereafter. For a period of
three (3) years following execution of this Support and Maintenance Agreement, the Annual
Fee shall not increase by more than 5% of the previous year's Aimual Fee. All requests by
the Licensee for additional features or functionality that fall outside of Licensor's ongoing
policy of upgrading the Software will be quoted separately.
Late Payments. All invoices will be sent at least thirty (30) days prior to their due date.
Payments received forty-five (45) days after their due date will be assessed a 10% late fee.
Taxes. In addition to other amounts payable under this Support and Maintenance Agreement,
Licensee shall pay any and all federal, state, municipal, or other taxes, duties, fees, or
withholding currently or subsequently imposed on Licensee's use of the Software or the
payment of the Annual Fee to Licensor, other than taxes assessed against Licensor's net
income. Such taxes, duties, fees, withholding, or other charges shall be paid by Licensee or
Licensee shall provide the appropriate authority with evidence of exemption from such tax,
duty, fee, withholding, or charge. If Licensor is required to pay any such tax, duty, fee, or
charge, or to withhold any amount from monies due to Licensor from Licensee pursuant to
this Support and Maintenance Agreement, Licensee shall promptly reimburse Licensor any
such amounts.
Coplogic - DORS Support and Maintenance Agreement
10. On Site Support. The Licensee shall reimburse Licensor at the rate of USD$2,500.00 per day
for each Licensor employee or contractor required for any On-Site support incuned at the
Licensee's direct written request and authorization. This rate shall be paid for each day that
Licensor personnel are required to be on the Licensee's site. Licensee will not pay for
Licensor personnel travel time or travel expenses. In response to written Licensee requests
for Licensor to provide on-site routine non-emergency support. Licensor shall produce a
written estimate of the time required to provide the requested support and state any
requirements, such as the presence of Licensee staff or other resources or materials. Any On-
Site Support provided by Licensor shall only be invoiced by Licensor or paid by Licensee if
the problem arose due to something other than a defect in the Software.
LICENSEE'S OBLIGATION
11. The Licensee Agrees to:
(a) Fumish descriptions of problem(s) in the form reasonably requested by Licensor
Support representatives;
(b) Assist Licensor's efforts to reproduce the problem(s) in the applicable operating
environment, and
(c) Make available qualified, trained staff on-site to carry out Licensor's instmctions and/or
provide remote access to system(s) as requested by Licensor.
12. The Licensee shall designate a sole Support Contact to provide routine end user support for
the Licensee personnel conceming the Product.
13. The Licensee shall take appropriate steps to educate its end users about the need to contact
the Support Contact (rather than Licensor directly) when support is needed. The Licensee
shall appropriately publicize the name, telephone number, and/or fax number and/or
electronic mail address if applicable, of the Support Contact.
14. Access to Data and System. The Licensee agrees to provide Licensor with data dumps, as
requested, remote access to the Software system, and with sufficient test time on the
Licensee's computer system to duplicate the problem, to certify that the problem is with the
Software, and to certify that the problem has been conected.
15. Licensor agrees that all release versions will be tested for installation in a computer
environment substantially similar to the Licensee's and that all releases will be free of
material defects that would affect the orderly continuation of Licensee's use of the Product.
16. The parties agree that Licensor is not obligated to ensure that its new release of the Software
is compatible with outdated (exceeding 4 years from date of initial release) hardware,
computer operating software or database engines).
CONFIDENTIALITY
17. Confidential Information.
(a) The term "Confidential Information" shall mean any and all information, which is
disclosed by either party to the other verbally, electronically, visually, or in a written or
Coplogic - DORS Support and Maintenance Agreement
other tangible form, which either is identified or should be reasonably understood to be
confidential or proprietary. Confidential Information includes, but is not limited to, trade
secrets, computer programs, software, documentation, formulas, data, inventions,
techniques, marketing plans, strategies, forecasts, customer lists, employee information,
financial information, confidential information conceming Licensor's business, as
Licensor has conducted it or as it may conduct itself in the future, confidential
information conceming any of Licensor's past, cunent, or possible future products or
manufacturing or operational methods, including information about Licensor's research,
development, engineering, purchasing, manufacturing, accounting, marketing, selling or
leasing, and any software (including third party software) provided by Licensor.
Licensor's Confidential Information shall be treated as strictly confidential by Licensee
and shall not be disclosed by Licensee except to those third parties with a need to know
and that are operating under a confidentiality agreement with non-disclosure provisions
no less restrictive than those set forth herein. This Agreement imposes no obligation
upon the parties with respect to Confidential Information which either party can establish
by legally sufficient evidence: (i) was in the possession of, or was rightfully known by
the Licensor without an obligation to maintain its confidentiality prior to receipt from
other party; (ii) is or becomes generally known to the public without violation of this
Agreement; (iii) is obtained by Licensee in good faith from a third party having the right
to disclose it without an obligation of confidentiality; (iv) is independently developed by
Licensee without the participation of individuals who have had access to the Confidential
Information or (v) is required to be disclosed by court order or applicable law, provided
that Licensee promptly notifies Licensor in order for the disclosing party to have an
opportunity to seek an appropriate protective order. The Licensee shall not obtain, by
virtue of this Agreement, any rights title or interest in any Confidential Information of the
Licensor. Within fourteen (14) days after termination of this Agreement, each party shall
certify in writing to Licensor that all copies of Licensor's Confidential Information in any
form, including partial copies, have been destroyed or returned to Licensor.
(b) Licensor acknowledges that the Licensee is a govemmental agency and may be required
to disclose certain information under requests made according to provisions of the Public
Records Act. Licensee shall give notice to Licensor of any request for the disclosure of
any information set apart and marked "confidential," "proprietary" or "trade secret" by
Licensor. Licensor shall then have five (5) days from the date it receives such notice to
enter into an agreement with Licensee providing for the defense of, and complete
indemnification and reimbursement for all costs (including plaintiffs attomey's fees)
incuned by Licensee in any legal action to compel the disclosure of such information
under the Public Records Act. Licensor shall have the sole responsibility for the defense
of the actual proprietary or trade secret designation of such information. The parties
understand and agree that any failure by Licensor to respond to the notice provided by
Licensee and/or to enter into an agreement with Licensee, as set forth above, shall
constitute a complete waiver by Licensor of any nondisclosure or confidentiality rights
hereunder with respect to such information, and such information shall be disclosed by
Licensee pursuant to applicable procedures required by the Public Records Act.
(c) Licensee shall protect the deliverables resulting from Services with at least the same
degree of care and confidentiality, but not less than a reasonable standard of care, which
Licensee utilizes for Licensee's Confidential Information.
Coplogic - DORS Support and Maintenance Agreement
(d) The terms of this Section 18 shall survive termination of this Agreement. Licensor and
Licensee acknowledge that any breach of this Section 12 by Licensee will irreparably
harm Licensor. Accordingly, in the event of a breach, Licensor is entitled to promptly
seek injunctive relief in addition to any other remedies that the disclosing party may have
at law or in equity.
TERMINATION
18. The Licensee may terminate this Agreement at any time and for any reason upon thirty (30)
days prior notice to Licensor.
In the event of a material default by the Licensee under this agreement. Licensor may
terminate this Agreement upon thirty (30) days prior notice to Licensee, provided that
Licensee has been given thirty (30) days notice to cure the default.
LIMITATION OF LIABILITY
19. To the extent permitted by law, neither party's liability to the other party in connection with
any cause of action, costs or damages relating to this Support and Maintenance Agreement
shall exceed the annual fee paid in the twelve month period preceding the event giving rise to
the claim.
Notwithstanding the foregoing, for purposes of the services performed by Licensor under this
Support and Maintenance Agreement, Licensor agrees to fully defend, indemnify and hold
harmless Licensee, its officers, employees and agents from any damage, loss, liability, costs
(including reasonable attomeys fees), claim or cause of action arising out of injury, loss or
damage to real property or tangible personal property, or arising from personal injury or
death, where such damage, loss, liability, costs, claim or cause of action is caused or incuned
in whole or in part as a result of any negligent or wrongful act or omission or willful
misconduct of Licensor, its officers, employees, agents, contractors and assigns. Licensor's
obligation hereunder is contingent upon Licensee providing Licensor prompt written notice
of any such claim, action, lawsuit or other proceeding and Licensee shall fiilly cooperate with
Licensor in the defense and all related settlement negotiations. The existence of any
insurance policies or coverage's shall not affect the parties' rights and obligations hereunder.
GENERAL
20. This Agreement shall be binding upon the successors and assigns of both parties, provided,
however that no assignment, delegation or other transfer shall be made by Licensor without
the prior written approval of the Licensee, which approval shall not be unreasonably
withheld.
21. This Agreement, together with Schedule A and Schedule B, which are incorporated herein by
reference, is the sole and entire Agreement between the parties. This Agreement supersedes
all prior understandings, agreements and documentation relating to such subject matter,
except for the concunently executed Setup and License Agreement. No modification or
amendment of this Agreement will be valid or binding unless reduced to writing and duly
executed by the party or parties to be bound.
Coplogic - DORS Support and Maintenance Agreement
22. Each party shall be excused from delays in performing or from its failure to perform
hereunder to the extent that such delays or failures result from causes beyond the reasonable
control of such party; provided that, in order to be excused from delay or failure to perform,
such party must act diligently to remedy the cause or effect of such delay or failure to the
extent the party is able. In the event of such delays, the timetables shall be extended by as
many calendar days as the delay caused by forces outside the reasonable control of the
parties.
23. This Support and Maintenance Agreement may be executed in separate counterparts, each of
which so executed and delivered shall constitute an original, but all such counterparts shall
together constitute one and the same instrument. Any such counterpart may comprise one or
more duplicates or duplicate signature pages, any of which may be executed by less than all
of the parties provided that each party executes at least one such duplicate or duplicate
signature page. The parties stipulate that a photocopy of an executed original will be
admissible in evidence for all purposes in any proceeding as between the parties.
24. Any provision of this Support and Maintenance Agreement or part thereof found to be illegal
or unenforceable shall be deemed severed, and the balance of the Agreement shall remain in
full force and effect.
25. This Support and Maintenance Agreement shall be govemed and constmed in accordance
with the laws of the State of Califomia. Venue of any action brought with regard to this
Support and Maintenance Agreement shall be either San Diego County or Contra Costa
County, Califomia.
The undersigned represent and warrant that they are authorized as representatives of the party on
whose behalf they are signing to sign this Support and Maintenance Agreement and to bind their
respective party thereto.
Coplogic, Inc.
(LICENSOR)
City of Carlsbad,
a MunicipaKImrparation (LICENSEE)
(Signature)
James Lee
Chief Operating Officer
(Signature)
09-
(Typed or Printed Name and Title)
^/ % m M
(Date) (Date)
ssistant City Attomey
Coplogic - DORS Support and Maintenance Agreement
SCHEDULE A
Licensor Hours of Support and Maintenance Service are as follows:
Regular Hours of Service (Pacific Time):
0900 to 1700 hours, Monday to Friday
(excluding Holidays observed by the U.S.
Federal Govt.)
After Hours Service (Pacific Time):
1701 to 0859 hours, Monday to Friday
Saturdays & Sundays
Holidays
E-mail received bv:
Licensor staff at support(S)coplogic.com
E-mail received by:
Licensor staff at support(a)coplogic.com
Incident/Request for Service Priority. All support and maintenance incidents/ requests for
service will be prioritized on the following basis:
Priority Definition
A Work is stopped to the point that critical business activities cannot continue, e.g. Loss of use
of major features, file system cormption, data loss, security issue, system outage.
B Issues or features of the product are preventing normal operations.
C Non-critical features, for which a convenient or reasonable work around exists, or a feature
which functions unexpectedly.
Slight inconvenience.
Response Time. The following table outlines the response times for each priority:
Priority Response Time
During Regular Hours of Service
Response Time
During After Hours of Service
A 2 hours 6 hours from time of notifying the vendor
contact(s) through voice mail or e-mail
B (2) business days of Licensor receipt of
verbal, written or electronic notice thereof
and to conect the Priority B Issue by the
Licensee's reasonably requested date. If the
Priority B Issue is not conected within 2
business days of the original notification
Licensor will provide the Licensee with
reports of its efforts to conect the Priority B
Issue as requested by Licensee.
Not available
C As time permits basis or inclusion in the next
scheduled update to the Licensed Product.
Not available
Coplogic -DORS Support and Maintenance Agreement 7
1. Incident/Request for Service Reporting Procedure
All problems, queries or requests for assistance must be made to Licensor at
support@coplogic.com, during regular business hours of service.
Licensee must be prepared to leave a contact name, phone number, workstations affected,
screenshots, a description of the problem/service and the impact.
Licensor's resources will work with the Licensee to diagnose the problem. After investigating
the issue. Licensor and the Licensee will jointly categorize the problem into:
Type of Problem Ownership
Licensee Server Hardware Problem Licensee
Desktop Hardware Problem Licensee
Licensee Network Communication Licensee
Isolated Workstation Issue Licensee
Licensee Database Performance/storage Licensee
Application or software related Licensor
Licensor will deal with problem/incident according to the priority assigned. In the case that a
problem cannot be readily resolved. Licensor will attempt to identify a work around.
As soon as Licensor conects an Issue, Licensor shall notify the Licensee that the Issue has been
conected by sending an electronic mail.
Coplogic - DORS Support and Maintenance Agreement
SCHEDULE B
Coplogic DeskOfficer Online Reporting System version 6.2.0.3
Base Annual Fee: USD$7,000 (Year 1 License/Support)
On-site Support: USD$2,500 per day per Licensor personnel (includes travel time and expenses)
Coplogic - DORS Support and Maintenance Agreement