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HomeMy WebLinkAboutSpillman Support Agreement 02-15-96SPI uman CDr y COMPUTER SOFTWARE SUPPORT AGREEMENT This Support Agreement ("this Agreement') is made and entered into this _6_11day of 195k, by and between: SPILLMAN DATA SYSTEMS. INC. ("Spillman") 810 SOUTH 100 WEST LOGAN, UTAH 84321 801)753-1610 AND Auburn Police Department ("Customer") 101 North Division Auburn, WA 98001 206)931-3042 WITNESSETH: WHEREAS, Spillman and Customer entered into that certain Computer Software License Agreement datedAp ( T , 19 %* (the "License Agreement') under which Customer obtained a non-exclusive, nontransferable license to use certain computer software in object code form and related user documentation (the "Licensed Program") on certain terms and conditions; WHEREAS, Spillman desires to offer Customer certain services with respect to the Licensed Program on the terms and conditions set forth herein; NOW THEREFORE, in consideration of the premises hereof, and the mutual obligations herein, the parties hereto, intending to be legally bound, hereby agree as follows: Section 1 DEFINITIONS For the purposes of this Agreement, the following definitions shall apply to the respective capitalized terms: 1.1 "Software Order." A Spillman order form identifying software modules purchased by Customer from Spillman which has been signed and accepted by Customer and has been accepted by Spillman. 1.2 "Licensed Program." The computer software known as SPILLMAN Public Safety Software® which was developed by Spillman and for which Customer is paying a maintenance fee to Spillman as identified in a Software Order, including any extracts from such software, derivative works of such software, or collective works constituting such software (such as subsequent Releases) to the extent offered to Customer under this Agreement or License Agreement. This excludes computer software not developed by Spillman which might be used in conjunction with the SPILLMAN Public Safety Software, such as word processors, spreadsheets, terminal emulators, etc. 1.3 "Agreement Term." An initial period of one (1) year. Thereafter, the Agreement Term shall automatically renew for successive periods of one year each unless and until terminated pursuant to Section 9 hereof. In no event, however, shall the Agreement Term extend beyond the prescribed term of the License Agreement. 1.4 "Error." Any failure of the Licensed Program to conform in all material respects to the functional specifications for the Licensed Program published from time to time by Spillman. However, any nonconformity resulting from Customer's misuse or improper use of the Licensed Program or combining or merging the Licensed Program with any hardware or software not supplied by Spillman, or not authorized to be so combined or merged by Spillman, shall not be considered an Error. Nor shall Licensed Program or data file damage resulting from unauthorized software alterations (including problems, errors, or malfunctions caused or created by the operator), customizing of programs, accident, neglect, power surge or failure, lightening, operating environment not in conformance with the manufacturer's specifications (for electric power, air quality, humidity or temperature), operating system errors, or hardware malfunction be considered an Error. 1.5 "Error Correction." Either a software modification or addition that, when made or added to the Licensed Program, establishes material conformity of the Licensed Program to the functional specifications, or a procedure or routine that, when observed in the regular operation of the Licensed Program, eliminates the practical adverse effect on Customer of such nonconformity. Not covered under Error Correction is the responsibility for data file damage due to software or hardware malfunction. 1.6 "Enhancement." Any modification or addition that, when made or added to the Licensed Program, materially changes its utility, efficiency, functional capability, or application, but that does not constitute solely an Error Correction. Enhancements may be designated by Spillman as minor or major, depending on Spillman's assessment of their value and of the function added to the preexisting Licensed Program. 1.7 "Coverage Hours." Seven days a week, 24 hours a day. 1.8 "Response Time." Within Six (6) hours of the Coverage Hours from the time that Spillman verifies that an Error is present, Spillman will initiate work toward development of an Error Correction. 1.9 "Releases." New versions of the Licensed Program, which new versions may include both Error Corrections and Enhancements. 1.10 "System Administrator." An agent of Customer with sufficient training and/or experience with a Software Product to communicate effectively with the Spillman Support personnel. Section 2 ELIGIBILITY FOR SUPPORT To be eligible for support for a Software Product, Customer must meet the following requirements. Acceptance of this Agreement by Spillman is conditioned upon confirmation by Spillman that a Software Product is eligible for support. Customer agrees that the obligation of Spillman to continue to provide Services with respect to a Software Product shall terminate if, at any time during the term of this Agreement, these requirements are not met. Nothing in this Agreement shall be construed to obligate Spillman to make Customer support available for a Software Product for so long as Customer shall not have a valid Software Agreement for such Software Product. To be eligible for Software Support for a Software Product, Customer must meet all of the following requirements: A. Customer has a valid Computer Software License Agreement for the Software Product; B. Customer has a System Administrator C. The hardware platform on which the Software Product is to be used is approved by Spillman. D. Customer must be in compliance with the schedule of payments. Spillman may require Customer to appoint a new System Administrator if Spillman determines that the System Administrator does not have the training or experience necessary to communicate effectively with the Spillman support personnel. Section 3 SCOPE OF SERVICES 3.1 During the Agreement Term, Spillman shall render the following services in support of the Licensed Program, during Coverage Hours, subject to the compensation fixed for each type of service in Spillman's current Fee Schedule: a. Spillman shall maintain a program control center capable of receiving by telephone any operator reports of system irregularities. b. Spillman shall maintain a telephone hot line that allows Customer to report system problems and seek assistance in use of the Licensed Program. C. Spillman shall maintain a trained staff capable of rendering the services set forth in this Agreement. d. Spillman shall be responsible for using all reasonable diligence in correcting verifiable and reproducible Errors when reported to Spillman in accordance with Spillman's standard reporting procedures. Spillman shall, after verifying that such an Error is present, initiate work, within Response Time, in a diligent manner toward development of an Error Correction. Following completion of the Error Correction, Spillman shall provide the Error Correction through a "temporary fix" consisting of sufficient programming and operating instructions to implement the Error Correction, and Spillman shall include the Error Correction in all subsequent Releases of the Licensed Program. Spillman shall not be responsible for correcting Errors in any version of the Licensed Program other than the most recent Release of the Licensed Program, provided that Spillman shall continue to support prior Releases superseded by recent Releases for a reasonable period sufficient to allow Customer to implement the newest Release, not to exceed 180 days. e. Spillman may, from time to time, issue new Releases of the Licensed Program to its customers generally, containing Error Corrections, minor Enhancements, and, in certain instances if Spillman so elects, major Enhancements. Spillman shall provide Customer with one copy of each new Release, without additional charge. Spillman shall provide reasonable assistance to help Customer install and operate each new Release, provided that such assistance, if required to be provided at Customer's facility, shall be subject to the supplemental charges set forth in Spillman's current Fee Schedule. f. Subject to space availability and training fees, Customer may enroll its employees in Spillman's training classes, held at Spillman's facility in Logan, Utah, for regular or advanced training. g. Spillman shall consider and evaluate the development of Enhancements for the specific use of Customer and shall respond to Customer's requests for additional services pertaining to the Licensed Program including, without limitation, data conversion and report -formatting assistance), provided that such assistance, if agreed to be provided, shall be subject to supplemental charges mutually agreed to by Spillman and Customer. h. Spillman software support, although primarily intended for Spillman application software, also extends limited support for all operating systems where Spillman has an agreement with the supplier. However, Customer must be aware of the following facts for limited operating system support: I. In some cases, Customer is in a much better position to deal with operating system issues because they are on-site and because of technical expertise they may have. In these cases, Spillman recommends that they work directly with the hardware vendor on these matters. Spillman will still be available to provide assistance whenever needed. 2. Spillman is forced to work with the company that developed the operating system. If that company fails to provide quality support, Spillman will not be able to provide quality support to our customers. Also, if the company charges Spillman for their support, customer will be billed for these charges. 3. Some operating system problems can only be solved on-site. If and when this situation occurs, Spillman personnel will travel to Customer's site with Customer's approval. Customer will be billed according to the Spillman fee schedule for travel expenses and comprehensive per diem. 4. In the event that a bug is identified in the operating system, Spillman will immediately report the problem directly to the provider. However, we will be required to accept their schedule for fixing the problem. 5. If enhancement requests are made to Spillman for changes to the operating system, Spillman will pass them along to the provider. Spillman can make no commitments as to when, or if, the enhancements will be included in future releases. 6. Spillman will provide assistance with operating system upgrades but Customer is responsible for obtaining the upgrade from the vendor and paying any required fee. 7. Most operating system upgrades require on-site assistance. The fee for on-site assistance is not included with Spillman software support. 8. Spillman must approve, in writing, all operating system upgrades in advance to verify that the upgrade is necessary and compatible with the Spillman software. 3.2 The following items are specifically not covered by this agreement: a. Any hardware failure including, but not limited to, failure caused by wiring, multiplexers, modems, phone lines, power, or connectors. Also, any hardware limitations due to insufficient memory, disk storage or processing power. b. Any problems caused by hardware failure. C. Any work required to restore or recover data files and/or the operating system. d. Any problem caused by an operator. e. Configuring, maintaining, and upgrading the operating system including, but not limited to, backups and restores, fixes, and patches. f Any problems caused by incorrectly installed, configured, or maintained operating system, or versions of the operating system not supported by Spillman. g. Problems with, or caused by any hardware or third party software not supported by Spillman, including, but not limited to, Imaging, Fingerprinting (i.e. DBI, Idemix), SNA, high availability, X -stations, word processors (i.e. WordPerfect, Lyrix, Crystal Writer), terminal emulators, etc. h. Any network failures or problems including, but not limited to cabling, communication lines, routers, connectors, and network software. Printers connected off the back of terminals/personal computers (pass through printing) or network printers are not supported by Spillman. Spillman recommends that the customer obtains a support agreement with the third party vendors for the items listed in Section 3.2. Section 4 OBLIGATION OF CUSTOMER 4.1 Customer shall provide reasonable access to its facilities in connection with the performance of Spillman of its obligations hereunder. No charge shall be made for such access. It is agreed that prior notification will be given when access is required. 4.2 Customer must provide Spillman with information sufficient for Spillman to duplicate the circumstances under which a Problem in a Software Product became apparent. 4.3 Customer must maintain a modem and data set connected 24 hours per day, 7 days a week, to the direct dial network near any CPU used with a Software Product being maintained by Spillman hereunder and provide access to a dedicated voice grade local telephone. 4.4 A representative of Customer must be present when any on-site support is provided. Customer agrees that if such representative is not present when the Spillman representative arrives on site, no work will be performed and Customer will be charged for such Spillman representative. 4.5 All communications by Customer to Spillman must be in the English language. 4.6 Customer is responsible for providing one or more qualified System Administrators as described in Section 5. At least one of these System Administrators must be available at all times. Section 5 SYSTEM ADMINISTRATOR REQUIREMENTS 5.1 Each System Administrator must be certified by Spillman by successfully completing and passing the final written and practical examinations of the following training courses: a. System Introduction - Inquiry (6 Hours) b. System Introduction - Data Entry & Modification (6 Hours) C. Unix Fundamentals Training (SCO, AIX, or HP -UX). (Three Days) d. Basic System Administration (One Day) 5.2 Each System Administrator must be identified in Appendix A properly signed by both Customer and Spillman. 5.3 Each System Administrator must be qualified to address, or have other support sources to address, without the aid of Spillman, all problems relating to any hardware, software or operating system not directly associated with Spillman's software. 5.4 Calls received by anyone not identified in Appendix A are not covered by this agreement and are therefore subject to hourly fees, and are not subject to minimum Response Time. The training requirements specified may be met in two ways: The courses are offered twice each year at the offices of Spillman Data Systems in Logan, Utah. no charge for users attending this training, but they must travel to Logan and pay their own living expenses. Course dates may be obtained from the Training Department at Spillman Data Systems, class schedule is: Monday: 8 AM - 5 PM Unix Fundamentals Tuesday: 8 AM - 5 PM Unix Fundamentals, continued Wednesday: 8 AM - 5 PM Unix Fundamentals, continued Thursday: 8 - 12 AM System Introduction - Inquiry & Reports 1-3PM 3 - 5 PM System Administration: Introduction to Security Friday: 8 - 12 AM System Introduction - Data Entry, Modification 1-3PM 3 - 5 PM System Administration: Security, continued Saturday: 8 AM - 12 AM System Administration There is The 2. Any of the above courses may also be provided at the agency. A classroom with sufficient terminals must be provided. The agency must pay for the training at the reduced rate, travel, and living expenses. Theses costs will be provided on request. Section 6 FEES AND CHARGES 6.1 Customer shall pay Spillman its fees and charges based on the Support Order. The Support Order is attached to and a part of this Agreement. Additional Support Orders may be signed with Spillman from time to time and will become a part of this agreement. Spillman reserves the right to change its Maintenance Fees from time to time, provided that no such change will be effective until at least 90 days after Spillman has given Customer written notice of such change. Fee changes will result from changes in (1) Software Prices, (2) Increases in the number of modules, (3) Increase in the number of users on the system, (4) Changes in the computer hardware or (5) Selection by Customer of different Coverage Hours. 6.2 Spillman shall invoice Customer at the beginning of each contract year for all fees. Charges accrued and all reimbursable expenses incurred shall be invoiced at the beginning of the next calendar month. Customer shall pay the invoiced amounts immediately upon receipt of such invoices. Any amount not paid within thirty (30) days after the invoice date shall bear interest at the lesser of eighteen (18) percent per year or the highest rate allowed by applicable law. 6.3 Customer shall be responsible for the fees and charges for procuring, installing, and maintaining all equipment, telephone lines, modems, communications interfaces, and other hardware necessary to operate the Licensed Software and to obtain from Spillman the services called for by this Agreement. 6.4 Customer agrees to pay additional charges according to the Spillman Fee Schedule for all work performed outside of Coverage Hours. These charges are applicable for any work performed after hours, REGARDLESS OF THE CAUSE, even if it was reported and/or initiated during Coverage Hours. 6.5 On-site assistance will be performed as requested by Customer. However, Customer will be billed according to the Spillman Fee Schedule for travel and living expenses. Section 7 PROPRIETARY RIGHTS 7.1 To the extent that Spillman may provide Customer with any Error Corrections or Enhancements or any other software, including any new software programs or components, or any compilations or derivative works prepared by Spillman (collectively, "Vendor Programs"), Customer may (1) install one set of the Vendor Programs in the most current form provided by Spillman, in Customer's own facility; (2) use such Vendor Programs in connection with the Licensed Programs, and in a manner consistent with the requirements of the License Agreement, for purposes of serving Customer's internal business needs; and (3) make one copy of the Vendor Programs in machine-readable form for nonproductive backup purposes only. Customer may not use, copy, or modify the Vendor Programs, or any copy, adaptation, transcription, or merged portion thereof, except as expressly authorized by Spillman. Upon termination of such License Agreement, Customer shall return or destroy the Vendor Programs, and returning the Vendor Programs in the manner required by the License Agreement shall be sufficient for such purposes. 7.2 The Vendor Programs are and shall remain the sole property of Spillman, regardless of whether Customer, its employees, or contractors may have contributed to the conception of such work, joined in the effort of its development, or paid Spillman for the use of the work product. Customer shall from time to time take any further action and execute any further instrument, including documents of assignment or acknowledgement, that Spillman may reasonably request in order to establish and perfect its exclusive ownership rights in such works. Customer shall not assert any right, title, or interest in such works, except for the non-exclusive right of use granted to Customer at the time of its delivery or on-site development. Section 8 DISCLAIMER OF WARRANTY AND LIMITATION OF LIABILITY 8.1 Spillman disclaims all other warranties, either expressed or implied and representations with respect to the licensed program, except as stated in the License Agreement. 8.2 In no event shall Spillman be liable for any indirect, consequential, special, exemplary, or incidental damages of whatever and however caused, even if Spillman has been advised of the possibility of such damages. The cumulative liability of Spillman to the Customer for all claims arising in connection with this agreement shall not exceed the total fees and charges paid to Spillman by the Customer within the last 12 months. 8.3 No action, whether based on contract, strict liability, or tort, including any action based on negligence, arising out of the performance of services under this Agreement, may be brought by either party more than six (6) years after such cause of action accrued, except that an action for nonpayment may be brought within six (6) years of the date of the last payment. Section 9 TERMINATION 9.1 This Agreement may be terminated as follows: a. This Agreement shall immediately terminate upon the termination of the License Agreement; b. This Agreement may be terminated by either party upon the expiration of the then -current term of this Agreement, provided that at least 90 days' prior written notice is given to the other party; or C. This Agreement may be terminated by either party upon 30 days' prior written notice if the other party has materially breached the provisions of this Agreement and has not cured such breach within such notice period. 9.2 Following termination of this Agreement, Spillman shall immediately invoice Customer for all accrued fees and charges and all reimbursable expenses, and Customer shall pay the invoiced amount immediately upon receipt of such invoice. Customer may continue to use any work supplied to Customer by Spillman for the remaining term of the License Agreement. Any amount not paid within thirty (30) days after the invoice date shall bear interest at the lesser of eighteen (18) percent per year or the highest rate allowed by applicable law. Section 10 MISCELLANEOUS 10.1 Each party acknowledges that it has read this Agreement, understands it, and agrees to be bound by its terms. The parties further agree that this is the complete and exclusive statement of the agreement of the parties with respect to the subject matter hereof and that it supersedes and merges all prior proposals, understandings, and agreements, whether oral or written, between the parties with respect to the subject matter hereof. This Agreement may not be modified except by a written instrument duly executed by the parties hereto. 10.2 In the event that any provision of this Agreement is held invalid, illegal, or unenforceable, the remaining provisions shall be enforced to the maximum extent permitted by applicable law. 10.3 Neither party may assign its rights or duties under this Agreement without the prior written consent of the other party, except to a successor of all or substantially all of its business and properties. 10.4 The waiver by either party or any term or condition of this Agreement shall not be deemed to constitute a continuing waiver thereof nor of any further or additional right that such party may hold under this Agreement. IN WITNESS WHEREOF, the parties have caused this Agreement to be executed by their duly authorized representatives as set forth below. Customer:] Signed: 1Printed: 1wi(d W, 4 Title: C ItT oT Te ic Date: /—O 19 Accepted and Approved by Spillman: Signed:c Printed: Duane Barker Title: Vice President - Finance Date: z'Z 19 % O softmain101795] Customer Name Agreement No. 1. 2. k-' Name: Title: Office Phone Number Beeper Number: 1.11 Home Phone Number: Mailing Address: 1 APPENDIX A SYSTEM ADMINISTRATORS Date SYSTEM ADMINISTRATORS Name:UroucA Title: a61 Ser AT - Office Phone Number: gob Uq - 6bbb Beeper Number: (204)903- 0913 Home Phone Number: Mailing Address: Name: ?&LJ Truhee" Title: Corrs_GI7Gtu cos Office Phone Number: i20b 931- 3018 Beeper Number: Home Phone Number: Mailing Address: Customer: Title: & of RL tz Date:s 19Q6_ 9 Customer Name Agreement No. Name: Title: o Office Phone Number: Beeper Number: _ Home Phone Number: Mailing Address: _ APPENDIX A SYSTEM ADMINISTRATORS Date SYSTEM ADMINISTRATORS 2. Name: Jnaa ttrW,ndeZ Title: `{Wa &ervius 4c,Jsi Office Phone Number: 206 q,31 - Beeper Number: Home Phone Number: Mailing Address: 3. Name: A V1d'avi Title: `DOzei7ye / Office Phone Number: Beeper Number: Home Phone Number: Mailing Address: Customer: Printed:/.UIVid Wrdf( 1Ou Title: w Date: 415- 19 96 0 S[data1 11cll1 systems, inc. SUPPORT ORDER Customer: Auburn Police Department 101 North Division Auburn, WA 98001 Contact: Cheryl Price 206) 931-3042 Law Enforcement Software Modules: HUB Police Records Bar Code Evidence Tracking Fleet Maintenance Personnel Geobase Jail Managment Commissary Management Laptop Rep. - Narrative only 810 South 100 West Logan, Utah 84321 801)753-1610 Date: 416.146, Software Maintenance Total $9,720 (Second year support begins 15 months from the signing of the Sales Order or the date of the Purchase Order). For Custom Software, first year support starts on the date the Software is installed. The Support Fee is not included in the Custom price unless the first year support is specified. This Software Order was filled by Spillman Data Systems, Inc. This is used only as an attachment to the Computer Software Support Agreement. Appr e B ame/Title 9y Date 10