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HomeMy WebLinkAboutContract 35632 CITY SECRETARY CONTRACT NO. _-- SOFTWARE MAINTENANCE AGREEMENT `t ORIGIUL This Software Maintenance Agreement ("Agreement") is entered into between SumTotal Systems, Inc. ("Vendor"), a California Corporation with its principal offices located at 1808 North Shoreline Blvd, Mountain View,CA 94043-1622 and the City of Fort Worth,("Customer"),a home rule municipal corporation with its principal offices located at 1000 Throckmorton street, Fort Worth, Texas 76102, individually referred to as a"party"and collectively referred to as the"parties." RECITALS: WHEREAS: The Customer has previously purchased Software from the Vendor for the Registrar learning management system; and WHEREAS: The initial warranty period of the Software has expired;and WHEREAS: The parties wish to enter into an agreement for the Vendor to provide enhancements and standard maintenance services for the software. AGREEMENT: NOW THEREFORE,the parties hereby agree as follows: 1. Scope of Agreement During the term of this Agreement, Vendor agrees to provide Customer standard maintenance, enhancements, web-based support as applicable, and telephone support services, as set forth in Sections 3, 5, 6, and 7, for the computer programs, software, upgrades, enhancements, web-based application access or fixes for the software listed in Exhibit"A"to this Agreement(collectively "Software"). 2. Term Effective Date. This Agreement shall have a one year term beginning on June 11,2007("effective date") and ending June 10, 2008. The Customer shall have five (5) consecutive options to renew this Agreement for one year each.Customer shall notify Vendor of its intent to renew in writing thirty(30)days prior to the expiration of the current renewal term. 3. Standard Maintenance Services a. Scope of Services. During the term of this Agreement, Vendor will provide Customer with the following Standard Maintenance Services for the Software: i. Corrections of substantial defects in the Software so that the Software will operate on a supported environment,in conformance with our published documentation ii. Support for updates and upgrades of the Software that incorporate(A) corrections of any substantial defects,(B)fixes of any minor bugs, (C)maintenance patches and(D)enhancements. iii. Toll free telephone support between the hours of 8:00 a.m. and 6:00 p.m., Central Standard Time, Monday through Friday, excluding federal holidays, to assist Customer in using the Software. SumTotal/City of Fort Worth-Software Maintenance Agreement-Page 1 of 6 iv. Support for Customer web-based access b. Services Not Included. Standard Maintenance Services do not include: i. Custom Programming Services ii. On-site support iii. Training iv. Hardware and related supplies 4. Enhancements/Upgrades Vendor will make Enhancements and Upgrades to the Software available to the Customer at no additional charge during the term provided Customer has paid the annual maintenance fee. 5. Maintenance Fee a. Amount of Fee. Customer agrees to pay Vendor an annual Maintenance Fee, in the amount set forth in Exhibit A, excluding taxes, for Standard Maintenance Services provided by Vendor pursuant to this Agreement. b. Discontinuance. Customer understands that if Customer discontinues and then resumes purchase of Standard Maintenance Services, Customer will be required to pay Vendor the entire Maintenance Fees for the period of discontinuance on a prorated basis, plus the Maintenance Fee for the tern of Standard Maintenance Services then commencing. 6. Payment Terms a. Due Date. Customer agrees to pay the Maintenance Fee to Vendor within thirty (30)days of receipt of invoice. b. Payment Terms. In the event Customer fails to pay any amount in accordance with this Agreement, Customer agrees to pay interest on the unpaid amount at a rate equal to one percent(1%) or the highest rate allowed by law,whichever is less. C. Taxes. Customer is a tax exempt entity therefore Vendor agrees that any amounts for which Customer is invoiced will not include taxes. Upon Vendor's request, Customer will provide Vendor with documentation of Customer's tax exempt status. 7. Obligations of Customer a. Customer Contact. Customer shall notify Vendor of Customer's designated Customer Contact. To the maximum extent practicable, Customer's communications with Vendor will be through the Customer Contact. b. Installation. If applicable,Customer agrees to install all corrections of substantial defects, minor bug fixes and updates, including any enhancements, for the Software in accordance with the instructions and in order of receipt from Vendor. SumTotal/City of Fort Worth-Software Maintenance Agreement-Page 2 of 6 C. Equipment and Personnel Access. If applicable, Customer agrees to grant Vendor access to Customer's equipment and personnel concerned with the operation of the Software to enable Vendor to provide services. If Vendor requires access to Customer's network, Vendor agrees to execute Customer's Access and Outside Connections agreement. d. No Modification of Software. Customer agrees not to modify, enhance or otherwise alter the Software,unless and only to the extent specifically authorized by the Vendor. e. Error Documentation. Upon detection of any error in the Software, Customer, as requested by Vendor,agrees to provide Vendor a listing of output and any other data, including databases and backup systems that Vendor reasonably may request in order to reproduce operating conditions similar to those present when the error occurred. f. Use of the Software. Customer agrees that it will not use or modify the Software in any manner that will give rise to a claim by any third party by way of infringement. S. Ownership Vendor declares and Customer acknowledges that Vendor owns all proprietary rights, including patent, copyright, trade secret and other proprietary rights, in and to the Software and any corrections, fixes,enhancements,updates or other modifications,including custom modifications,to the Software. 9. Indemnity/Limitations a. Infringement. Vendor agrees to defend,settle,or pay,at its own cost and expense, any claim or action against Customer for infringement of any patent, copyright, trade secret, or similar property right arising from Customer's use of the Software in accordance with this Agreement. Vendor shall have the sole right to conduct the defense of any such claim or action and all negotiations for its settlement or compromise and to settle or compromise any such claim, and Customer agrees to cooperate with it in doing so. Customer agrees to give Vendor timely written notice of any such claim or action, with copies of all papers Customer may receive relating thereto. If the Software or any part thereof are held to infringe and Customer's use thereof is enjoined or restrained or, if as a result of a settlement or compromise, such use is materially adversely restricted, Vendor shall, at its own expense and as Customer's sole remedy, either: (a)procure for Customer the right to continue to use the Software; or(b) modify the Software to make it non-infringing, provided that such modification does not materially adversely affect Customer's authorized use of the Software; or (c) replace the Software with equally suitable, compatible, and functionally equivalent non-infringing Software at no additional charge to Customer; or (d) if none of the foregoing alternatives is reasonably available to Vendor, terminate this Agreement and refund to Customer the payments actually made to Vendor under this Agreement during the current term. b. Limitation on Liability. No action in tort or contract under this Agreement, unless involving death or personal injury, may be brought by either party against the other more than four(4) years after the cause of action arises. Neither party shall be liable to the other for lost profits or indirect, special or consequential damages arising out of this Agreement,even if the party has been notified of the possibility of such damages. 10. Termination a. Termination. This Agreement shall terminate upon the occurrence of either of the following: (i) upon termination of the Customer's Software License Agreement by either party for any SumTotal{City of Fort Worth-Software Maintenance Agreement-Page 3 of 6 SumTotai reason (ii) either party notifying the other party of its intent to terminate upon thirty (30) days written notice; (iii) immediately if Vendor or its employees, agents or representatives violates any provision of this Agreement and fails to cure such violation within fifteen (15)days of notice of such violation; (iv)in the event no funds or insufficient funds are appropriated by Customer in any fiscal period for any payments due hereunder, Customer will notify Vendor of such occurrence and this Agreement shall terminate on the last day of the fiscal period for which appropriations were received without penalty or expense to the customer, except as to the portions of the payments herein agreed upon for which funds shall have been appropriated. b. Procedure. Within ten (10) days after termination of this Agreement, Customer will return to Vendor, at Customer's expense, the Software and all copies thereof, delete or destroy all other Software copies,and certify, in writing by an officer of Customer,that the Software has been returned,all copies deleted or destroyed, and its use discontinued. It. General Provisions a. Notices.All notices under this Agreement are to be sent by registered mail or facsimile to the address below or to any other address as the party may designate: VENDOR: SumTotal Systems, Inc. Attn:Contract Administrator 1808 N. Shoreline Blvd. Mountain View,California 94043-1633 Fax:Fax: 650.962.5661 CUSTOMER: City of Fort Worth Attn:Trisha Thomason 1000 Throckmorton Street Fort Worth,Texas 76102 Fax: (817)392-[insert] b. Assignment. Neither party may assign or otherwise transfer, in whole or in part, any of its rights or obligations under this Agreement without the prior written consent of the other party, which consent shall not be unreasonably withheld. C. Complete Agreement; Amendment. This Agreement and any attachments, set forth the entire understanding of the parties with respect to the subject matter of this Agreement. Any amendment to this Agreement must be in writing and signed by both parties. d. Waiver. The waiver or failure of either party to exercise in any respect any right provided for in this Agreement shall not be deemed a waiver of such right or any other rights afforded to that party under this Agreement. e. Severability. If any provision of this Agreement is found to be invalid, illegal or unenforceable under any applicable statute or rule of law, it is to that extent to be deemed omitted. The remainder of the Agreement shall be valid and enforceable to the maximum extent possible. f. Governing Law. This Agreement is to be construed in accordance with the laws of the State of Texas. Venue for any action arising under this Agreement shall be exclusively in Fort Worth, SumTotal/City of Fort Worth-Software Maintenance Agreement-Page 4 of 6 SumTotal Tarrant County,Texas. g. Mediation. Upon agreement by both parties, the parties may settle any controversy arising out of this Agreement by non-binding mediation to be held in Tarrant County, Texas, in accordance with the rules of the American Arbitration Association or other governing rules. A mediator shall be agreed upon by the parties or,if the parties cannot agree upon a mediator within thirty(30)days, then the parties agree that a single mediator shall be appointed by the American Arbitration Association. Nothing in this provision shall prevent either party from exercising any other remedies it may have under applicable law. h. Conflicts. Vendor hereby warrants to the Customer that Vendor has made full disclosure A in writing of any existing or potential conflicts of interest related to Vendor's services under this Agreement. In the event that any conflicts of interest arise after the effective date of this Agreement, a Vendor hereby agrees immediately to make full disclosure to the Customer in writing. d AQ i. Confidentiality. Vendor, for itself and its officers, agents and employees, further agrees c4 that it shall treat all information provided to it by the Customer as confidential and shall not disclose any V such information to a third party without the prior written approval of the Customer. Vendor shall store and maintain Customer Information in a secure manner and shall not allow unauthorized users to access, C modify, delete or otherwise corrupt Customer Information in any way. Vendor shall notify the Customer ,�► immediately if the security or integrity of any Customer information has been compromised or is believed to have been compromised. j. Right to Audit. Vendor agrees that the Customer shall, until the expiration of three (3) years after final payment under this Agreement, have access to and the right to examine at reasonable times any directly pertinent books, documents, papers and records of the Vendor involving transactions relating to this Agreement. Vendor agrees that the Customer shall have access during normal working hours to all necessary Vendor facilities and shall be provided adequate and appropriate work space in order to conduct audits in compliance with the provisions of this section. The Customer shall give Vendor reasonable advance notice of intended audits. R k. Force Majeure. The Customer and Vendor shall exercise their best efforts Co meet their respective duties and obligations as set forth in this Agreement, but shall not be held liable for any delay or omission in performance due to force majeure or other causes beyond their reasonable control (force ;j v majeure), including, but not limited to, compliance with any government law, ordinance or regulation, �v, acts of God, acts of the public enemy, fires, strikes, lockouts, natural disasters, wars, riots, material or v labor restrictions by any governmental authority,transportation problems and/or any other similar causes. j AGREED TO: SUMTOTAL SYSTtE�S, t CUSTOMER OF FORT WORTH: Signature: Signatur Name: r �` a` ,�_ Name: Karen r. _MQnt;nmery Title: Title: Assistant City Manager/CFO Date: Date: 2Z�4::57< 0 fr z'Ti oc l �PPR0VED A T© �` ��L AN LEGAL.STY: SuinTotal/City of Fort Worth-So e 1 ein" r . ..v to a Approved Approved sun,Tot,! SumTotal �lyS SumTotal ASSISTAN 'Ty ATTORNEY Legal r ��' 9 Finance EXHIBIT A SOFTWARE MAINTENANCE AGREEMENT SOFTWARE: Maintenance Renewal—Pathlore LMS Registrar Version 5.5 sp2 Maintenance Plan: STD Start:June 11,2007 End:June 10,2008 Annual Fee: $1,310.00 Renewal Options: 5 Options to renew for one year term expiring June 10,2012 --Fees for any renewal period shall not exceed 5%of the total cost of the previous year's renewal SumTotal/City of Fort Worth-Software Maintenance Agreement-Page 6 of 6 SumTotal