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HomeMy WebLinkAboutContract 44725 C CONMCT PU ETECH SYSTEMS, INCI., End User Software Maintenance Agreement City of Fort Worth. Holly ly and village Creek Water Treatment Plants This Software Maintenance Agreement ("Agreement") is, effective as of the I st day of �December, 2012 (the ""Effective Date")by and between PureTeeh Systems,, Inc, an Arizona corporation, "PURETECH" , located at 1950 W Rose Garden Lane, Ste loo, Phoenix, Arizona, 85027 and the City of Fort Worth, located at 1000 Throekiriorton Street, Fort Worth, TX 76102 the "END-USER" or "Purchaser"), collectively referred to as the (.parties. RECITALS End-User has pare used. PURETECH advanced security and monitoring systems (the "Sy"stems for its village Creek and Holly Water Treatment Plants, as described in Exhibit A. The Systems rely on certain proprietary and non-proprietary software (the "Software"), of PURETECH, which his been licensed to END-USER pursuant to the tears, of an End-User Software License Agreement of even date herewith (the "License Agreement"). As, a condition of the Purchase, installation and servicing of the Systems and of the License Agreement, END-USER desires to t r into this Agreement. 1. Maintenance Services, PURETECH will from time to time perform such routine software maintenance, as PURETECH deems necessary for the proper operation of the System as outlined in Exhibit to this Agreement. Software; maintenance shall include corrections to Software defects, and new features added at PU R-ETCH's discretion to the Purchased Software. Software maintenance does not include new software programs or software modules that PURETECHmay develop and offer for sale from time to time. In addition, promptly after the END-USER identifies and notifies PURETECH of any programming or other error in the Software, PURETECH I in its discretion, shall either replace or repair the Software, or provide such other remediation as [ RET' CH shall determine in good faith. 2. Modifications Excluded This Agreement does not obligate PURETECH to provide maintenance services required as a result of modifications made to the Software by any party other, than.. PURIETECH or to any computer program incorporating all or any part of the Software. In the event of any modification to the Software by any party other than PURETECH that requires,res, P' RETECH to perform maintenance or corrective services, such services shall be charged at PCB TECH's then normal hourly service rates. Nothing contained herein shall, loll PURETECH Systems,Inc. City of Fart Worth End User Software Maintenance Agreement w OFFICIAL, Init. init., CITI CITY'SEC�RETIARY I ] FTo WORTH,TX RECEIVED 2 s'warumrhmwvwmnurou: mmmxm''rm,4w„:a mror:amr«�,a� be deemed to permit END,-USER to make modifications to the Software other than as specifically authorized in the License Agreement. 3. Access to Data & Computer If necessary, the END-USER will provide PURETECH with evidence of programming error(s), In addition, the END-USER will provide PURETECH with access to the End-User's computer and adequate coniputer, time to enable PURETECH to reproduce the problem, determine whether it results from the Software, and, after corrective action or replacement has ti,("Iken place, ascertain whether the problem has been corrected. 4. Term & Termination of Agreement 4.1 This Agreement shall commence as of the Effective Date and shall continue for a period of one (i) year. Thereafter, END-USER shall have the option to renew the Agreement for two (2) consecutive one (1) year terms. Either party may terminate this Agreement for any reason upon sixty(60) days written notice to the other party. 4.2 Upon any cancellation or termination of the License, Agreement, this Agreement shall also terminate automatically. 4.3 PURETECH may terminate this Agreement in, the event of any failure on the part of the END-USER to pay PURETECH the maintenance feewithin ten (10): days after written notice to the EN USED.. 4.4 Upon the effective date of termination, all fees or charges payable-under this Agreement which have accrued as of the effective date of ten-nination shall become due and payable immediately and without notice or demand by PURETECH and all obligations of both parties,under this Agreement shall end. 5. Warranty 5.1 Any replaced or corrected Software is subject to all of the warranties provisions set forth in the License Agreement,, including limitations and disclaimers. Without limiting the foregoing, and notwithstanding any provision of the License Agreement to the contrary, END-USER acknowledges and agrees that END-USER's, sole and exclusive remedy against PURETECH for any claim relating to any alleged defect or nonconformity in the System or the Software shall be replacement or repair. 5.2 PURETECH makes no express or 'Implied warranties of any kind, other than those specifically set forth, herein. PURETECH specifically disclaims the implied warranties of merchantability and fitness for a particular purpose. PURETECH will not be 2 of 11 PURETECH Systems, Inc. City of Fort Worth End User Software Maintenance A&Ireernent Nit. Init. liable to END-USER for any indirect, special, incidental or consequential damages whether based on contract, tort or any other legal theory. 6. Fees & Charges 6.1 The fee for the maintenance services provided for in this Agreement shall be set forth on Exhibit C to this Agreement. Such fee shall be paid an-nually, on or before the anniversary of the Effective date, beginning with the first year following the Effective Date. 6.2 In the event no funds or insufficient funds are appropriated by the City in any fiscal period for any payments, due hereunder, City will notify PURETECH 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 City of any kind whatsoever., except as to the portions of the payments herein agreed upon for which funds have been appropriated. 7. Travel Expenses Travel expenses, if applicable, shall be paid in accordance with Exhibit B, Section 7, Additional Charges. 4�* 810 General Provisions 8.1 Neither party may assign or transfer any of its rights or obligations under this Agreement without the prior wn*tten consent of the other party,1 which such consent shall not be unreasonably withheld. Any attempted assignment or transfer will be void. In the event that either party merges with another entity or the majority of its assets are acquired by another entity during the Term, that party shall provide thirty(30) days written notice of such merger or acquisition, or as much notice as is reasonably possible, to the other party prior to the effective date of the assi nine t. An assignment cue to merger or acquisition under this section shall not require consent of' either party. Subject to the foregoing, this Agreement will be binding upon and inure to the benefit of the successors and permitted assigns oflboth parties 8.2 Neither party will be liable for its failure to perforrn under this Agreement 0, due to contingencies beyond its reasonable control including,, but not limited to, strikes, riots,, wars, fire, acts of God, or acts in compliance with any law of the United States of America or any other government body or agency of'it. 8.3 In the event of any litigation or other legal proceeding including but not limited to arbitration or mediation between the parties arising from this Agreement, the prevailing party will be entitled to recover, in addition, to any other relief awarded or ,3 of I I PURETECH Systems, Inc. City of Fort Worth End User Software Maintenance Agree 1-ne nt ,14 init. Ire t. ............... granted, its reasonable costs and expenses (includi g, ing attorney fees) incurred in the proceeding. Any dispute relating to the interpretation or performance of this Agreement will be resolved at the request of either party through binding arbitration. Arbitration, will be conducted in the county of Maricopa in the state, of Arizona according to the then- existing rules of the American Arbitration Association. Judgment upon any award by the arbitrators may be entered by any State or Federal Court having jurisdiction. 8.4 All notices, demands or consents required or permitted under this Agreement will be in writing and will be delivered personally or sent by certified or registered mail. to the respective parties at the addresses defined on the first page of this Agreement, or at such other address as will be given by either party to the other in writing. 8.5 This Agreement contains the entire and only understanding regarding the relationship between the parties with respect to the maintenance of the Software. N'o waiver, amendment or modification of any provisions of this Agreement will be effective unless in writing and signed by the party against whom such waiver, amendment or modification is sought to be enforced. No failure or delay by either party, in exercising any right, power or remedy under this Agreement, except as specifically provided in this Agreement, will operate as a waiver of any such right, power or remedy. 8.6 The validity, construction and performance of' this Agreement will be governed by the internal laws of the State of Arizona, without regard to provisions regarding conflicts of law. 8.7 The Captions and section headings used in this Agreement are for convenience only and are not a part of this Agreement and will not be used in construing it. 8.8 If any provisions of this Agreement are held by a court of competent jurisdiction to be invalid under any applicable statute or rule of law, they are to that extent to be deemed omitted and the remaining provisions of this Agreement will remain in frill force and effect. [Signature Page Follows] 4of 11 PURETECH Systems,Inc. City of Fort Worth End User Software Maintenance Agreement Init. Init. ACCEPTED AND AGREED; CITY OF FORT WORTH PURETKH SYSTE INC, By Fernandlo Cos,ta Name—Larry Bowe Assistant City Manager Title President/CEO Date Date 07/30/2 0 13 TTEST it i o ATTEST 0 By lqW V6 Mary J. Kay"ser Jan Br�oder'lck. creta Title. Oice Manager City Sery A:PPROVED T�ORM AND LEGALITY 0,"000 Mialeshia B. Farmer Sr. Assistant City Attorney 0 Contract Authoruanon. 0 C. None required 5 of 5 PURETECH Systerns, Inc. OFFICIAL RECORD City of Fort Worth en End User Sollware Maintenance Agreemt FFI RD C 71 ITY SEC RETARY T IX nit- -------- Illit. ......... [iFt MRTHI TX .EXHIBIT M Im"rarAh SYSTEMSW CERTIFICATE OF OW RSH This is to certify that City of Fort Worth is the registered owner of the following Pwuu.reAct v software licenses purchased d on 10/28/09, x"2 , 10 and 10/05/10 and installed at the Village Creek location_ w r P � -WRr6 y t" r �-u Py AVA !late AnaWft djan2W. 2 PU -W 4OY A) w 2 S-eng-CSW--tPureActly Dated this 5th Day,of January,2013. A)vl"- . Larry Dowse President PureTech Systems Inc. 15 50,W Rose Gardra Imo,Sibe 140, a*, 8-502 'rel:;60Z)424-99912 Fax ti )424-9347 6ofII PURETECH Systems, Inc. City of Fort Worth End'User Software Maintenance nance Agr ement ��. �y Init. Iit. w I SYSTEMS CERTIFICATE OF OWNERSHIEP This is t® certify that Cater of Fort Worth is the registered owner of the following PureActiv software licenses,purchased on 9/127110 and 11/24/10 and installed at the Holly location- 3 LAa12SW P -AVA ( a *Wa ft 32 a on mr 2 PUMAMAVIA2 10 Dated this 5th Day of Jan uar ,2013- r Larry Bowe President Pu reTech Systems Inc. 950 W Row Gin Lane, 144,Fhomix4 Aem SSG.", `eL.t ;42+-9842 F=.(6W)42.-9554.1 www. vbMhayz*=-0„MM of I PURETECH Systems, Inc. City of Fort Werth End User Software Maintenance A r em n.t �Po InIt. Init. EXHIBIT B 1. SOFTWARE SUPPORT PureActiv Software Maintenance, is sold in minimum increments of 1.2 months. Software Maintenance entitles the Purchaser to corrections to, software, defects and may include new features added to the software at the discretion of PureTech (collectively referred to as "Software Updates"). Software Maintenance may not include new software programs or software modules or features that PureTech may develop and offer for sale from time to time. Software If during troubleshooting of a system issue, PureTech determines that the root cause is due to a system component not provided by PureTech, additional troubleshooting service fees may apply at then current rates (refer to section 7 regarding Additional Charges). In addition to routine Software Updates, after the Purchaser identifies and notifies PureTech of any programming or other error in the Software ("defects"), PureTech, 'in its discretion, shall either replace or repair the Software, or provide such other equivalent remediation as PureTech shall determine in good faith. 2. HARDWARE SUPPORT 'While under warranty or extended hardware warranty, if any PureTech Hardware Product sold to Purchaser 'by PureTech, either directly or indirectly, is defective, Purchaser may contact PureTech regarding its repair or replacement. The Purchaser will need to ship (return) the defective product to Pure" ech for repair or replacement. Cost of the shipping in both directions is the responsibility of the Purchaser. Purchaser must obtain a "Return to Authorization Number" by calling the PureTech Customer Set-vice department. APP va for return for repair or replacement will be based on PureTech's determination that the Product is, in fact, defective and will not be unreasonably withheld. PureTech will be entitled to determine, at its discretion and in good faith, whether to replace or repair the Product. 3. MOPE ACCESS The City of Fort Worth shall provide PureTech remote network access to the Pure,Activ video surveillance system. network access shall be adequate to enable PureTech, to diagnose and coffect" Issues that may arise with the PureActiv system from time to time. 4., SUPPORT TYPES AND AVAILABILITY Phone and Remote Access support is available Monday through Friday between 8:00 am and 5:00 pin Arizona Time, excluding holidays(business hours). Cali Center Support— 1-602-424-9842 x 202 1-866-267-4191 x 202 8 of 11 P,URETECH Systems,Inc. City of Fort Worth End User SoftwareMaintenance Agreement Init. init. n *te Support: PureTech will provide on-site support at the Purchaser's request after -sl commercially reasonable attempts to resolve the issue remotely. Refer to Section 7 for additional, charges that may apply. 5. RESPONSE TIME During normal business hours, Purchaser should call PureTech (,it the numbers, listed above, to request support. PureTech will have trained personnel on staff to respond by phone and remote access. If not immediately available, a PureTe!ch Customer Support person will return the call within 2 business hours. Calls for service during off hours,, including holidays and weekends, are handled by a voice mail system and the calls are returned by 1.0:00 are the following business,day. 6. RESOLUTION TIME PureTech will make commercially reasonable efforts to resolve software and hardware issues in a reasonable time period. Issues will be addressed in priority order according to the severity scale defined below. 1. Critical - The issue results in the complete failure of the software system or of a m.aJor feature or features of the software system such as video analytics, display of live video, or video recording. There is no known,workaround which will yield the desired results. 2. Mayor - The issue results in the complete failure of the so tware system or of a major. feature or features of the software system such as video analytics, display of live video, or video recording, however, there are acceptable workarounds, which will yield the desired results. 3. Average - The issue does not result in a failure, but causes the system to produce incorrect I incompliete, or inconsistent results, or the issue impairs the systems usability. 4. inor - The issue does, not result in a failure, does not impair usability, and the desired processing results are easily obtained by working around the issue. 5. Exception - The issue is the result of non-con form ance to a standard, is related to the aesthetics of' the system, or is a request for an enhancement. Is,sues, at this, level may be deferred or deferred indefinitely. 7. ADDITIONAL CHARGES PureTech may elect to charge Purchaser for support at then current support rates,, as defined below, under the following conditions: 9 of 1I PURETECH Systems, Inc. City of Fort Worth End User Software Maintenance Agreement Init. Init. E ESupport is requested by the Purchaser and provided when the Purchaser does not have in place a fully paid Software Maintenance agreement (ire the case of a software issue) or Hardware Warranty(in the case of a hardware issue). 0 OAfter providing troubleshooting assistance, PureTech determines that the root cause of the issue is the result of a component or software that PureTech did not provide to the Purchaser. 5 EJ Purchaser requests on-site support when. PureTech has not been provided with remote access to the system. 17JE'Purchaser desires Priority Resolution and is willing to pay for such priority. The Priority Resolution, would cause PureTech to work the identified issue as a top priority above any other issue until resolved. Generally, the need to request Priority Resolution would require an extraordinary event as determined by Purchaser; not occurring in the normal course of business. Under all circumstances,, Purchaser agrees to pay for travel costs should on-site support be requested by Purchaser or deemed necessary by Purchaser. All additional charges must be approved by the Purchaser prior to the rendering of services. It 10 of II. I PURETECH Systems, Inc. City of Fort Worth End Us,er Software Maintcnance Agreement Init. Init., EXHIBIT C Software Maintenance Fees S� ', Os Holly $15,851 "pillage Creek $12,445 11 of 1,1. PURETECH Systems, Inc, City of Fort Worth End User Software Maintenance Agreement t I'll it. Init. NETWORK ACC�ESS AGREEMENT This NETWORK ACCESS AGREEMENT ("Agreement") is made and entered into by and between the CITY OF FORT WORTH ("iy"), a home rule municipal corporation with its principal location at 1000 Throckmorton Street, Fort Worth, Texas 76102, organized under the laws of the State of Texas and situated in portions of Tarrant, Denton and Wise Counties, Texas, and PureTech Systems Inc. with its principal location at 1950 West Rose Garden Lane, Su,ite 140, P,hioenix, Arizona, 85027, ("Contractor"). 1. The Network. The City owns and operates a computing environment and network (collectively the "'Network"'). Contractor wishes to access the City's network in order to provide software maintenance for the PureActiv video surveillance software installed at the North Holly and Village Creek water treatment plants. In order to provide the necessary support, Contractor needs, access to the Video Security system on the Waiter Department network. . 2., Grant of Limilted Access, Contractor is hereby granted a limited righit of access to the City's Network for the soile purpose of providing software maintenance for the PureActiv video surveillance software installed at the Nio�rth Hoilly and Village Creek water treatment plants] Such access is granted subject to the terms and conditions, forth in this Agreement and app,l'icable p,rovislions of the City's Administrative Regulation D-7 (Electronic Communications Resource Use Pollicy)l, of which such applicable provis,ions, are hereby incorporated, by reference and made a part of this Agreement for all purposes herein and, are available upon request. 3. Network Credentials. The City will provide Contractor with Network Credlentials consisting of user IDs, and, passwords unique to, each individual re;q i uiring Network access on behalf of the Contractor. Access rights will automatically expire one (1) year from the date of this Agreement. If this access is being, granted for purposes of completing services for the City pursuant to a separate contract, then this Agreement will expire at the completion of the contracted services, or upon termination of the contracted services, whichever occurs first. This Agreement will: be associated with the Services designated below. 0 Services are being provided in accordance with City Secretary Contract No. 0 Services are being provided in accordance with City of Fort Worth, Purchase Order No. Services are being provided in accordance with the Agreement to which this, Access Agreement is attached. El No services are, being provided pursuant to this Agreement. 4. Renewal. At the end of the first year and each year thereafter, this, Agreement may be renewed annually if the following conditions,are met: 4.1 Contracted services have not been completed. �4.2 Contracted services have not been terminated. 4.3 Within the thirty (3,0) days prior to the scheduled annual expiration of this Agreement, the Contractor has provided the City with a current list of its officers,, 'agents, servants, employees or representatives requiring Network credentials. Notwithstanding the scheduled contract expiration or the status of completion of services, Contractor shall provide the City with a current list of officers, agents, servants, employees or representatives that require Network credentials on, an annual bas,is. Failure to adhere to this requirement may result in denial of access to the Network and/or termination of this Agreement. Network RestrIctions. Contractor officers, agents, servants, employees or representatives may not share the ity-assigne�d user IDs and passwords. Contractor acknowledges, agrees and hereby gives its authorization to the City to monitor Contractor's use of the City's Network in order to ensure' Contractor's compliance with thi's Agreement. A breach by Contractor, its officers, agents, servants, employees, or representatives,, of this Agreement and any other written instructions or g,u,idell,ines that the City provides to Contractor pursuant to this Agreement shall be grounds for the City immediately to deny 'Vendor Network Access Agreement Rev. 12/21/2010 .............. ................ ...... ........... dr ab op 0 10 4% w or w ow 0 A% dwr a w w w v IFF w 0 0 to IMP v 40 lw 0 A lim lw 9w A ow 4NI 44AIMS off Aft im A A A A A all no, is A it 1%j 0 r A all A A A v W vp 0 0 0 w a 0 dO OF a• w v v dr w OF 0 0 0 a 0 ow s. v 0 w 4r A OF 0 0 0" 'oil 0 10 01 01 & 0 0 o ow 0 w 40 0 0 w all I lw 0 do Aw 0 do or 0 40 0 Z 0 Z 0 "w 0 do 0 0 4w 40 0 0 40 4ww IW Ah 0 0 0 4% low 0 0 4r w of IS 0 0 0 ArA during normal working hours to all subcontractor facilities and shall be provided adequate and I appropriate work space, in order to conduct audits in compliance with the provisions of this paragraph. City shall give subcontractor reasonable notice of intended audits. 11. Agreement Cumulative. This Agreement is cumulative of and in addition to any written contracts, agreements, understandings or acknowIledgments with the City signed by Contractor. This Agreement and any other documents, incorporated herein by reference constitute the entire understanding and Agreement between, the City and Contractor as to the matters contained herein regarding Contractor's access, to and use of the City's Network. 12. Amendments. The terms of this Agreement shall not be waived,, altered, modified, supplemented, or amended in any manner except by written instrument signed by an authorized, representative of both the City and Contractor. 13. Assignment., Contractor may not assign or in any way transfer any of its interest in this Agreement. Any attempted assignment or transfer of all or any part hereof shall be null and void. 14. Sea b*11*1 If any provision of this Agreement, is held to be invalid, illegal, or unenforceable, the validity, legality and enforceability of the remaining provisions shall not in any way be affected or impaired. is. Force Majeure. Each party shall exercise its best efforts to meet its respective duties and obligatioins, 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 majeure), including, but not limited to, compliance with any government law, ordinance or regulation, acts of God, acts of the public enemy, fires, strikes, lockouts, natural disasters, wars, riots, material or labor restrictions by any governmental authority, transportation problems and/or any other similar causes. 16. Gioveming Law / Venue. This Agreement shall be construed in accordance with the laws of the State of Texas. If any action, whether real or asserted, at law or in equity, is brought on the basis of this Agreement, venue for such action shall lie in state courts located in Tarrant County, Texas or the United States District Court for the Northern District of Texas, Fort Worth Division. 17. Signature Autho - By affixing a signature below, the person signing this Agreement hereby warraints that he/she has the legal authority to bind the respective party to,the terms and conditions, in this agreement and to execute this agreement on behalf of the respective party, and that such binding authority has been granted by proper order, resolution, ordinance or other authorization of the entity. The other party is fulilly entitled to rely on this warranty and representation in entering into this Agreement. ACCEPTED AND AGREE D,.o ^r% 0, CITY O L 1 �F%J��ORTH,-. PureTech Syst ms Inc.. S, Fernando Costa aura 'le: Assistant Ci M auger A a 7/V Date: or mor e: ATrE'QT'- T, 14 41 By: Name: City Secr Title: APPROVED AS TO FORM AND LEGALITY: OFFICIAL REVendor Network Access Agreement 3 y PureTech Systems Inc. CRETAR Rev. 42/21/20 10 FTa WORTHS TX ,"" e Viendor Network Accesis Agreement 4 Rev. 12121/20 10 PureTechl Systems Inc.