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HomeMy WebLinkAboutKittitas equivant SMA 12082017 Final EQ Signed Rev. 06022016 1 of 13 SOFTWARE MAINTENANCE AGREEMENT This Software Maintenance Agreement ("Agreement") is entered into as of the ___ day of __________, 20____ ("Effective Date”) by and between CourtView Justice Solutions Inc. d/b/a , with offices at 4825 Higbee Avenue NW, Suite 101, Canton, Ohio 44718 (“”), and Kittitas County Prosecutor’s Office with offices at 205 West 5th Ave, Room 213, Ellensburg, WA 98926 (“Customer”), and describes the terms and conditions pursuant to which shall provide software maintenance services to Customer for certain Software (as defined below). Whereas, and Customer are parties to a Software License Agreement pursuant to which Customer has licensed certain software products (“Software”) fr om . Software expressly excludes software licensed by a third party ; Whereas, the Software paid-up license fee includes a warranty without charge as set forth in the Software License Agreement. In addition, support and maintenance (“Maintenance”) for the Software is available. Maintenance includes bug fixes and telephone support and may include, if they are made available by , software updates and enhancements; and Whereas, the parties wish to set forth the terms and conditions upon which the parties have agreed Maintenance will be provided to the Customer for the Software, and to which the Customer, at its option, may subscribe annually to Maintenance from . Except as expressly provided in this Agreement, does not provide Maintenance for third party software that is lice nsed by a party other than . Therefore intending to be legally bound, the parties hereby mutually agree to the following terms: 1. TERM Maintenance shall commence on the Effective Date, and shall have an initial term of twelve (12) months (“Initial Term”). The term shall automatically renew each year thereafter on the anniversary of the Effective Date for an additional twelve (12) month period (“Subsequent Term”) unless terminated as set forth below. 2. SCOPE OF MAINTENANCE SERVICES will provide the Maintenance as described in the Maintenance Terms attached hereto and labeled as Exhibit A. will provide tier one support for third party software purchased from , tier two and three support and revisions and upgrades will be provided by the manufacturer of such third party software. Tier one, tier two and tier three support is defined as: Tier I: Is the initial support level responsible for basic customer reporte d issues. It is synonymous with first line support and denotes use support. A Tier I () customer care specialist will gather the customer’s information and determine the customer’s issue by analyzing the symptoms and will attempt to identify the root cause of the underlying problem. If the root cause is a basic use issue the assigned customer care specialist will attempt to remediate the issue before escalating the issue to a higher level. If the reported issue is a technical issue the assigned customer care specialist will escalate the issue to a higher level. Tier II: This is a more in-depth technical support level provided by personnel with additional experience and knowledge of the product. Manufacturer technicians Rev. 06022016 2 of 13 providing Tier II support are responsible for: helping Tier I customer care specialist solve basic use problems, for handling basic technical issues, for investigating escalated issues by confirming the validity of the reported issue and identifying known solutions related to these more complex issues. If an issue is new and/or the assigned technician cannot determine a solution, they are responsible for escalating this issue to the Tier III technical support group. Tier III: This is the highest level of technical support and is provided by manufacturer technicians with extensive experience and knowledge of the product for handling the most difficult and advanced problems. Often the Tier III technical support group includes the staff that developed and tested the product. 3. PROPRIETARY PROPERTY All software development, design, documentation, and programs necessary to operate and maintain the systems described herein that were produced by shall remain the proprietary property of . Restriction of this proprietary property does not limit the Customer from making such copies of programs, documentation, and software -related materials for internal use. Disclosure of such materials to third parties or other contractors is strictly forbidden without the express written consent of . 4. CUSTOMER RESPONSIBILITY FOR ENVIRONMENT To operate the supported software, will provide Customer with a definition of minimum requirements for the Customer’s environment, infrastructure and related applications, which include, but are not limited to, Customer’s operating system, database tools, and other support tools. will provide Customer with at least ninety (90) days written notice of changes to those minimum requirements . Customer must meet those minimum requirements or may decline to provide Maintenance. has no obligations to upgrade the suppor ted software because of Customer’s changes to its environment, infrastructure and related applications, including, but are not limited to, Customer’s operating system, database tools and other supported tools. 5. SOFTWARE MAINTENANCE FEE – PAID UP LICENSE In consideration of the Maintenance services to be provided for the initial term, Customer shall pay to in accordance with the Software Maintenance Fee Schedule attached hereto as Schedule 1. For each Subsequent Term, reserves the right to change the annual Maintenance fee by providing Customer written notice of the increase at least forty-five (45) days prior to start date for any Subsequent Term. 6. ADDITIONAL SOFTWARE – PAID UP LICENSE In the event the Customer requires maintenance for additional Software ("Additional Software"), the parties may mutually agree to modify this Agreement to include the Additional Software on Schedule 1 and make any other changes necessary for coverage of the Additional Software hereunder. The Software Maintenance Fee due under this Agreement shall also be modified to include a prorated amount of the annual maintenance fee for the Additional Software covering the term remaining under then current term of this Agreement . The Maintenance Fee for this initial period of coverage shall be in an amount equal to twenty two percent (22%) of the non-discounted license fee paid for the Additional Software . For the first Subsequent Term, the amount due for the Additional Software shal l be of the full value of the 22% of the non-discounted cost of the license fee. Thereafter, any change in the amount of annual Maintenance Fee due shall be provided as set out in this Agreement Rev. 06022016 3 of 13 7. OTHER FEES AND EXPENSES If onsite maintenance is required, Customer will pay reasonable travel and living expenses of employees or agents, which shall be billed and paid as the expenses are incurred. Onsite labor shall be provided on an hourly rate basis at the then c urrent rates. Travel and living expenses shall be incurred in accordance with standard travel policy. 8. PAYMENT TERMS a. Payment for Maintenance for initial and subsequent terms is due and payable within thirty (30) days of the date of each billing. Upon thirty days written notice to Customer of the intent to suspend Maintenance, may, at its sole election and without prejudice to other remedies herein, suspend support under this agreement if Customer fails to pay invoice by the ninety day after the invoice date. Restatement of Maintenance under this agreement requires all overdue payments to be paid in full. b. reserves the right to apply a late payment charge of 1.5% per month to amounts outstanding more than thirty (30) days after the payment due date. 9. DEFAULT AND TERMINAT ION a. The Customer shall have the right to terminate Maintenance upon delivery of written notice at least thirty (30) days prior to start date of any Subsequent Term. b. Either party may terminate this Agreement if: (i) the other party fails to perform a material obligation of this Agreement, and if such failure remains uncured 30 days after receipt of written notice from the non-breaching party specifying the failure; or (ii) a party ceases to conduct business, becomes or is declared insolvent or bankrupt, is the subject of any proceeding relating to its liquidation or insolvency which is not dismissed within 90 days or makes an assignment for the benefit of creditors. In addition, may terminate this Agreement effective upon thirty (30) days written notice to Customer if Customer fails to make any payment in full as and when due hereunder and does not cure within that thirty (30) days. c. In the event that Maintenance is terminated by , shall have no continuing obligations to the Customer of any nature whatsoever with respect to Maintenance. Furthermore, termination by pursuant to the provisions hereof shall be without prejudice to any right or recourse available to , and without prejudice to ’s right to collect any amounts, which remain due to it hereunder. 10. LIMITED WARRANTIES a. Software. warrants for a period of ninety (90) days following the date of delivery of any software under this agreement that it will substantially operate according to the documentation and product literature provided by . If it is determined by Customer that the software does not substantially operate according to such documentation provided by . may, at its option and expense, apply commercially reasonable efforts to designing, coding and implementing programming changes to the source code to correct reproducible errors or correcting misstatements and omissions in the User's Guide and code documentation . Customer shall report all errors or other defects in the software to immediately upon their discovery. It is acknowledged that the Software is inherently complex and may contain errors and cannot and does not guarantee to correct all such errors. The remedies set forth in this section constitutes Customer's sole and exclusive remedy for breach of this Rev. 06022016 4 of 13 Warranty. does not warrant Third Party Software . will transfer any warranty provided by the licensor of the Third Party Software to Customer . Third Party Software is software that is not proprietary to . b. Services. warrants that the Services provided under this Agreement shall be performed with that degree of skill and judgment normally exercised by recognized professional firms performing the same or substantially similar services . In the event of any breach of the foregoing warra nty, provided Customer has delivered to timely notice of such breach as hereinafter required, shall, at its own expense, in its discretion either (1) re-perform the non-conforming Services and correct the non - conforming Deliverables to conform to this standard; or (2) refund to Customer that portion of the Price received by attributable to the non-conforming Services and/or Deliverables. No warranty claim shall be effective unless Customer has delivered to written notice specifying in detail the non-conformities within 90 days after performance of the non-conforming Services or tender of the non-conforming Deliverables. The remedy set forth in this section is the sole and exclusive remedy for breach of the foregoing warranty. c. NO OTHER WARRANTIES. EQUIVANT MAKES NO OTHER WARRANTIES, WHETHER EXPRESS, IMPLIED, OR STATUTORY REGARDING OR RELATING TO THE SOFTWARE OR THE DOCUMENTATION, OR ANY MATERIALS OR SERVICES FURNISHED OR PROVIDED TO CUSTOMER UNDER THIS AGREEMENT, INCLUDING MAINTENANCE AND SUPPORT. EQUIVANT SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE WITH RESPECT TO THE SOFTWARE, DOCUMENTATION AND SAID OTHER MATERIALS AND SERVICES, AND WITH RESPECT TO THE USE OF ANY OF THE FOREGOING. 11. LIMITATION OF LIABILITY a. Customer hereby agrees that total liability to Customer for any and all liabilities, claims or damages arising out of or relating to this Agreement, howsoever caused and regardless of the legal theory asserted, including breach of contract or warranty, tort, strict liability, statutory liability or otherwise, shall not, in the aggregate, exceed fees paid to hereunder during the previous 12 -month period. The parties acknowledge and agree to the foregoing liability risk allocation. Any claim by Customer against relating to this Agreement must be made in writing and presented to within six (6) months after the date on which this Agreement expires or is otherwise terminated. b. In no event shall either party be liable to the other for any punitive, exemplary, special, indirect, incidental or consequential damages (including, but not limited to, lost profits, lost business opportunities, loss of use or equipment down time, and loss of or corruption to data) arising out of or relating to this Agreement, regardle ss of the legal theory under which such damages are sought, and even if the parties have been advised of the possibility of such damages or loss and notwithstanding any failure of essential purpose of any limited remedy. 12. GENERAL TERMS a. Neither party may sell, assign, transfer, or otherwise convey any of its rights or delegate any of its duties under this Agreement without the prior written consent of the other party except in the event of sale of assets, merger or consolidation . Notwithstanding the foregoing, may without violation of this paragraph engage the services of independent contractors to assist in the performance of its duties hereunder. Rev. 06022016 5 of 13 b. All provisions of this Agreement, which by their nature should survive termination of this Agreement, will so survive. c. Any waiver of the provisions of this Agreement or of a party’s rights or remedies under this Agreement must be in writing to be effective. Delay or failure by either party to exercise any right hereunder, or to enforce any provision of this Agreement will not be considered a waiver thereof and will not in any way affect the validity of the whole or any part of this Agreement or prejudice such party’s right to take subsequent action. No single waiver will constitute a continuing or subsequent waiver, nor shall a waiver of any one provision of the Agreement be deemed to be a waiver of any other provision. d. If any provision of the Agreement is held by a court of competent jurisdiction to be invalid, void or unenforceable, the remaining provisions shall nevertheless continue in full force without being impaired or invalidated in any manner . If any term, condition or provision in this Agreement is held to be illegal, invalid or unenforceable, in whole or in part, the parties shall work in good faith to agree such modification that will to the maximum extent possible preserve the original intention of said term, condition or provision . If the parties fail to agree on such an amendment, such invalid term, condition or provisio n will be severed from the remaining terms, conditions and provisions, which will continue to be valid and enforceable to the fullest extent permitted by law. e. This Agreement shall be governed by the laws of the State of Delaware, without regard to its laws relating to conflict or choice of laws. Subject to Paragraph g. below, the parties agree that the sole jurisdiction and venue for actions related to the subject matter hereof shall be the state and U.S. Federal courts in the State of Delaware. Both parties consent to the jurisdiction of such courts and waive any objections regarding venue in such courts. f. Any communication or notice permitted under the terms of this Agreement or required by law must be in writing, and will be deemed given and effecti ve: (i) when delivered personally with proof of receipt; (ii) when sent by e -mail; (iii) when delivered by overnight express; or (iv) three (3) days after the postmark date when mailed by certified or registered mail, postage prepaid, return receipt reques ted and addressed to a party at its address for notices. Each party's address for notices is stated below. Such address may be changed by a notice delivered to the other party in accordance with the provisions of this Section. Customer Prosecuting Attorney General Manager Kittitas County Prosecuting Attorney’s Office 205 W, 5th Ave 4825 Higbee Avenue NW Ste. 213 Suite 101 Ellensburg, WA 98926 Canton, Ohio 44718 Tel. No. 509-962-7520 Tel. No. 330.470.4280 Fax No. 509-962-7022 Fax No. 330.494.2483 Copy to: Copy to: Elishia Harvill, Office Manager Contract Manager Kittitas County Prosecuting Attorney’s Office 205 W. 5th Ave 4825 Higbee Avenue NW Ste. 213 Suite 101 Rev. 06022016 6 of 13 Ellensburg, WA 98926 Canton, Ohio 44718 g. The parties will seek a fair and prompt negotiated resolution within ten (10) days of the initial notice of the dispute (“Dispute”). If the Dispute has not been resolved after such time, the parties will escalate the issue to more senior levels. If the parties are unable to resolve any dispute at the senior management level, then any controversy, claim or Dispute arising out of or relating to this Agreement shall be resolved by binding arbitration in accordance with the Commercial Arbitration Rules of the American Arbitration Association then in effect. Before commencing any such arbitration, the parties agree to enter into negotiations to resolve the Dispute. If the parties are unable to resolve the Dispute by good faith negotiation, either party may refer the matter to arbitration . The arbitrator(s) shall be bound to follow the provisions of this Agreement in resolving the Dispute, and may not award any damages excluded by this Agreement . The decision of the arbitrator(s) shall be final and binding on the parties, and any award of the arbitrator(s) may be entered or enforced in any court of competent jurisdiction . The prevailing party will be entitled to recover its reasonable attorneys' fees and costs, in addition to any other relief ordered by the arbitrator(s). Such fees and costs will include those incurred in connection with the enforcement of any resulting judgment or order, and any post judgment order will provide for the right to receive such attorneys' fees and costs. Any request for arbitration of a claim by either party against the other relating to this Agreement must be filed no later than six (6) months after the date on which concludes performance under this Agreement. Nothing herein shall prevent either party from seeking a preliminary or permanent injunction to preserve the status quo or prevent irreparable harm during the arbitration process. h. Neither party shall be liable for any failure of or delay in performance of its obligations (except for payment obligations) under this Agreement to the extent such failure or delay is due to acts of God, acts of a public enemy, fires, floods, power outages, wars, civil disturbances, epidemics, pandemics, sabotage, terrorism, accidents, insurrections, blockades, embargoes, storms, explosions, labor disputes (whether or not the employees' demands are reasonable and/or within the party's power to satisfy), failure of common carriers, Internet Service Provide rs, or other communication devices, acts of cyber criminals, terrorists or other criminals, acts of any governmental body (whether civil or military, foreign or domestic), failure or delay of third parties or governmental bodies from whom a party is obtaining or must obtain approvals, authorizations, license s, franchises or permits, inability to obtain labor, materials, power, equipment, or transportation, or other circumstances beyond its reasonable control (collectively referred to herein as "Force Majeure Occurrences"). Any such delays shall not be a breach of or failure to perform this Agreement or any part thereof and the date on which the obligations hereunder are due to be fulfilled shall be extended for a period equal to the time lost as a result of such delays. i. This Agreement and any Schedules or Exhibits attached thereto contain the entire agreement and understanding between the parties with respect to the subject matter hereof and supersedes any and all prior or contemporaneous proposals, discussions, agreements, Customer issued purchase order or d ocument of like intent or purpose, understandings, commitments, representations of any kind, whether oral or written, relating to the subject matter hereof. It is expressly agreed that if Customer issues a purchase order or other document for the services provided under this Agreement, such instrument will be deemed for Customer’s internal use only, and no terms, conditions or provisions contained therein shall have any effect on the rights, duties or obligations of the parties under, or in any way modify, this Agreement, regardless of any failure by to object to such terms, conditions or provisions. This Agreement sets forth Rev. 06022016 7 of 13 the sole and entire understanding between and Customer with respect to the subject matter. IN WITNESS WHEREOF, the parties hereto, intending to be legally bound, have entered into this Agreement as of the Effective Date. CUSTOMER By: _______________________________ By: _______________________________ Title: _____________________________ Title: ______________________________ Date: _____________________________ Date: ______________________________ Jeffrey Harmon General Manager January 19, 2018 Rev. 06022016 8 of 13 SCHEDULE 1 SOFTWARE MAINTENANCE FEE SCHEDULE Rev. 06022016 9 of 13 Exhibit A MAINTENANCE TERMS 1. SUPPORT SERVICES Customer will authorize and identify a reasonable number of contacts who may initiate support with . These named users must be technically capable and familiar with the products covered under this agreement. Customer will perform basic troubleshooting before contacting to eliminate issues caused by other variables such as applications, power, hardware, security, infrastructure, and environment . reserves the right to decline support to Customer named users not authorized to initiate support. will provide support after confirming Customer has been unable to resolve the issue through its own troubleshooting. Once the reported problem can be reproduced and documented, and resolution identified such as assistance provided over the phone, application working as documented, configuration change, or programming change, the ticket will be closed. If a programming change is required, the ticket will remain open until the updated fix is delivered in a future release. Maintenance includes bug fixes and telephone support and may include, if they are made available by , software updates. 2. CORRECTION OF DEFECTS In the event the Customer encounters an error and/or malfunction (“Defect”) in the Software because it is not conforming to documentation provided by , it shall communicate the circumstances and any supporting information to . Upon receipt, will respond as follows: a. In the event that, in the mutual and reasonable opinion of and the Customer, there exists a Defect that does not constitute a serious impediment to the normal intended use of the Software, will correct the Defect and distribute the correction to the Customer in accordance with ’s normal software revision schedule. b. In the event that, in the mutual and reasonable opinion of and the Customer, there exists a Defect that does constitute a serious impediment to the normal intended use of the Software, will take such steps as are reasonably required to correct the Defect promptly. 3. SOFTWARE REVISIONS AND NEW VERSIONS a. Software may be revised by as a result of (i) emergency correction of Defect, (ii) periodic correction of Defects and/or (iii) the release of upgrades or improvements or modifications designed to improve the performance of the Software and/or to increase the capabilities of the Software (hereafter "Revisions"). b. Revisions will be provided at no additional charge during the term of the Software Maintenance Agreement. Rev. 06022016 10 of 13 c. New Versions (“New Versions”) of the Software may be issued by from time to time (excluding 3rd party software). A New Version substantially changes the architecture and/or coding structure of the application, and the New Version is not written as an add-on to the current software code base. will, from time to time, release new products (including New Versions) and/or modules, which will make available to Customer at the then - current price(s). d. All Revisions and New Versions will be transmitted to the Customer electronically unless otherwise mutually agreed. The Customer shall be solely responsible for executing the appropriate instructions in order to transfer the Revisions or New Versions onto to its system unless otherwise mutually agreed in writing. e. If Customer reports a Defect to that can be resolved through upgrading to a New Revision, Customer must upgrade to say New Revision and is not obligated to correct the Defect through remediation of the older version unless otherwise mutually agreed in writing. f. Software is designed as standard products and not as customized systems. recognizes the need for some Customer customization; however, reserves the right to control the design, performance, and integration of products and, as a result, may reject Customer requests for modifications or enhancements that are inconsistent with ’s product strategy. g. will use commercially reasonable efforts to modify the Software in order to maintain its existing functionality and provide functionality required as a result in changes to the law, regulations, or rules of the Customer’s State jurisdiction. A change to the law, regulations, or rules of the Customer’s State jurisdiction that requires new functionality is an enhancement. , at its sole discretion, may elect to add such enhancements to the product as a revision . If Customer requires such enhancement prior to decision, if any, to add to the product, the Customer will be required to pay for such additional services at ’s then current time and materials rate. In either case, the Customer shall timely notify in writing of all requested legislative updates. The notice shall contain a summary of the modifications, identifying the applications and functions to be modified as well as detailed specification of the required changes . The Customer shall also provide a complete text, including effective date, of the legislation and/or order mandating the modifications. shall then prepare a detailed functional specification for approval by Customer and the timeline required for implementation. Nothing in this provision requires to undertake extraordinary efforts to complete the legislative updates or provide new functionality except as additional services as described in section 7 below. Customer agrees to cooperate with other customers in the jurisdiction to agree upon appropriate specifications. 4. TECHNICAL LITERATURE shall make available to the Customer technical literature that considers relevant to the Software and its use within the scope of Customer's operations. 5. REMOTE DIAGNOSTIC ACCESS Rev. 06022016 11 of 13 The Customer shall provide appropriate remote access capabilities by which may, with the permission of the Customer, remotely access the Software for the purpose of remote diagnostics and support. 6. PROPER USE a. The Customer agrees that all reasonable effort shall be taken to ensure that neither the Software nor data files are misused. b. In the event that the Customer or its agents misuses the Software or data files, including, but not limited to, inserting, updating, deleting or otherwise modifying data through a means other than the Software, although is not obligated to correct such misuse, may attempt to correct the situation, if possible, at Customer’s expense. c. In the event that diagnostic assistance is provided by , which, in the reasonable opinion of , relates to problems not caused by a Defect in the Software, such assistance shall be at the Customer's expense. 7. ADDITIONAL SERVICES a. The Customer may desire to have additional modifications or minor enhancements performed; the fees for these services shall be in accordance with ’s then current time and materials rates. Specific services may include requirements analysis, preparation of functional or programming specifications, software development, testing, documentation, installation, data conversion, training, and help desk support. shall provide an estimate of cost prior to performing any of the above services. is available to perform these modifications within the scope of this Agreement or under a separate agreement. b. Additional support outside the scope of the support services described in this Agreement may be available to the Customer upon request. These services shall be performed on a time and materials basis. 8. RESPONSE TIMES AND AVAILABILITY a. Definition. The Customer Support Department is the primary means of communication between the Customer and regarding all software issues. Customer Support provides the most efficient means to track, manage, and resolve all software issues. The following table provides information on ’ categorization of issues. Rev. 06022016 12 of 13 Priority Criteria Urgent Extremely Severe Business Impact Issue results in broad disruption or degradation of production environment services (not caused by the Customer’s hardware or environment) causing a severe business impact to the Customer, and for which no acceptable workaround exists, including where: · A core business function is prevented from being carried out; or · An issue results in a disruption or degradation for multiple core business functions that affect one or more of the Customer’s business groups. High Serious Business Impact An error or Software issue related to a core system or business function that causes a serious business impact to the Customer by impeding the normal intended use of the software but allowing processing to continue in a restricted manner, and for which there is no known system workaround. Normal Moderate Business Impact A software operational error related to a core system or business function that causes a moderate to low business impact to the Customer but does not cause a serious impediment to the normal intended use of the software, and for which a system workaround may exist; or questions about how to use the application. Low Little or No Business Impact System functionality is largely correct except for minor, display or cosmetic errors with non-core functions of the software that causes little or no business impact to the Customer. Includes requests for documentation changes or corrections. b. Response Time. will respond as quickly as possible to each request, but uses the response time targets for Average First Reply Time, during the defined hours of operation, provided in the table below. First Reply Time is defined as the time it takes a Customer Care Agent to respond to Customer’s request for assistance. Average First Reply Time Target Average Resolution Time Target Urgent 1 hour As soon as possible, but no more than 24 hours High 8 business hours 48 hours (not including development or release time) Normal 2 business days 5 business days (not including development or release time) Low 2 business days Mutually agreed time or Scheduled for future release c. Resolution Time. Resolution time will vary depending on the severity and complexity of the reported problem. Resolution time is defined as the time it takes to sufficiently remedy the problem or return the system to operational status. Resolution may mean that a temporary fix has been provided to correct a problem until a permanent solution can be delivered. Average Resolution Time targets are Rev. 06022016 13 of 13 provided in the table above. Elapsed time for development effort is not included in Resolution time. d. Hours of Operation. shall be available for support services Monday through Friday, 8 A.M. to 5 P.M. Eastern Time, except for -observed holidays, which may be revised from time to time.