HomeMy WebLinkAboutContract 61128�()) IDEMIA
5515 East La Palma Ave., Suite 100
Anaheim, CA 92807
Tel: (714) 238-2000
Fax: (714) 238-2049
December 14, 2023
City of Fort Worth
505 W. Felix Street
Fort Worth, TX 76115
RE: Maintenance and Support Agreement # 006960-000
CSC No. 61128
By means of this letter, Idemia Identity & Security USA LLC ("IDEMIA" or "Seller") hereby extends City of
Fort Worth Maintenance and Support Agreement for the period March 30, 2024 through March 29, 2025
per the Terms and Conditions below.
Please indicate acceptance of this extension by signing in the acceptance block below and returning it to
my attention via Email at kimberly.dullinger@us.idemia.com at your soonest convenience.
If you have any questions or need further clarification, please contact me at (714) 632-2180 or e-mail
kimberly.dullinger@idemia.com. Thank you in advance.
Thank you,
Kimberly J. Dullinger
Maintenance Agreement Specialist
Idemia Identity & Security USA LLC
Accepted by:
IDEMIA IDENTITY & SECURITY USA LLC
Signed by:
Printed Name: Casev Mavfield
Title: Vice President
Date: December 14, 2023
CITY OF FORT WORTH
Signed by: William Johnson (MAr 15,202411:54 CDT)
Printed Name: William Johnson
Title: Assistant City Manager
Date: M a r 15, 2024
Please note this is not an invoice. An invoice will be provided after receipt of the
signed document or purchase order.
OFFICIAL RECORD
CITY SECRETARY
SA 006960-000 Page 1 FT. WORTH, TX v 9.27.11
ACCEPTED AND AGREED:
CITY OF FORT WORTH
By: William Johnson ( r 15, 202411:54 CDT)
Name: William Johnson
Title: Assistant City Manager
Mar 15, 2024
APPROVAL RECOMMENDED:
By: RobertRobert Alr 11, 202412:46 CDT)
Name: Robert A. Alldredge, Jr.
Title: Executive Assistant Chief
ATTEST:
By:
Name: Jannette S. Goodall
Title: City Secretary
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CONTRACT COMPLIANCE MANAGER:
By signing I acknowledge that I am the
person responsible for the monitoring and
administration of this contract, including
ensuring all performance and reporting
requirements.
By: Xe4 �11
Name: Loraine Coleman
Title: Administrative Services Manager
APPROVED AS TO FORM AND
LEGALITY:
By:
Name: Andrea Phillips
Title: Assistant City Attorney
CONTRACT AUTHORIZATION:
M&C: (None Required)
Date Approved:
Form 1295 Certification No.: N/A
OFFICIAL RECORD
CITY SECRETARY
FT. WORTH, TX
SA 006960-000 Page 2 v 9.27.11
Description of Covered Products
MAINTENANCE AND SUPPORT AGREEMENT NO. SA # 006960-000
CUSTOMER: City of Fort Worth
The following table lists the Products under maintenance coverage:
LiveScan TPE-Livescan TXDPS Motorized Cabinet 500ppi TXTPE34505
LiveScan TPE-Livescan TXDPS Motorized Cabinet 500ppi TXTPE19506
SA 006960-000 Page 3 v 9.27.11
Support Plan Options and Pricing Worksheet
Maintenance and Support Agreement # 006960-000 Date December 14, 2023
New Term Effective Start March 30, 2024 End March 29, 2025
STANDARD SUPPORT
® Advantage — Software Support
♦ Telephone Response: 2 Hour ♦
Standard Releases & Updates
♦
Supplemental Releases & Updates
♦ Remote Dial -In Analysis ♦
Software Customer Alert Bulletins
♦
8 a.m. — 5 p.m. Monday to Friday PPM
♦ Unlimited Telephone Support ♦
Automatic Call Escalation
® On -Site Hardware Support
♦ 8 a.m. — 5 p.m. Monday to Friday PPM
♦ Defective Parts Replacement
♦
Hardware Service Reporting
♦ Next Day PPM On -site Response
♦ Escalation Support
♦
Product Repair
♦ Hardware Vendor Liaison
♦ Hardware Customer Alert Bulletins
♦
Equipment Inventory Detail Management
® Parts Support
♦ Parts Ordered & Shipped Next Business Day ♦ Parts Customer Alert Bulletins
" If customer is providing their own on -site hardware support, the following applies:
➢ Customer Orders & Replaces Parts ➢ Telephone Technical Support for Parts Replacement Available
ADDITIONAL OPTIONS
❑ Users Conference Attendance ($3,950 per Attendee) Year: 2022 Number Attendees Requested
Included in Registration Fee:
• Conference Registration
• Attendee package upon arrival
• All sessions and training listed on the agenda
• Social events listed on the agenda
• Meals and breaks listed on the agenda
• Hotel room from Monday arrival through Friday morning checkout
• Round trip air travel
• Ground transportation between the conference airport and the conference hotel
Not included in Registration Fee:
• Transportation fee to/from your home town airport
• Airport parking fees in your home town
• Meals during your travel
• Meals outside those included in the conference
• Airline baggage fees
• In -room expenses such as pay -per -view, mini -bar, room service, and any other hotel incidentals
• Extra days before or after the conference
GRAND TOTAL $5,129.00
'Exclusive of taxes if applicable
PLEASE PROVIDE A COPY OF YOUR CURRENT TAX EXEMPTION CERTIFICATE (if applicable)
SA 006960-000 Page 4 v 9.27.11
Maintenance and Support Agreement - Number SA # 006960-000
This Support Plan is a Statement of Work that provides a description of the support to be performed.
1. Services Provided. The Services provided are based on the Severity Levels as defined herein. Each Severity Level defines
the actions that will be taken by Seller for Response Time, Target Resolution Time, and Resolution Procedure for reported errors.
Because of the urgency involved, Response Times for Severity Levels 1 and 2 are based upon voice contact by Customer, as opposed
to written contact by facsimile or letter. Resolution Procedures are based upon Seller's procedures for Service as described below.
Total System Failure - occurs when the System is not
Telephone conference Resolve within 24 hours
functioning and there is no workaround; such as a Central
✓within 1 hour of initial voice of initial notification
1 Server is down or when the workflow of an entire agency is
notification
not functioning.
Critical Failure - Critical process failure occurs when a crucial
Telephone conference Resolve within 7
element in the System that does not prohibit continuance of
✓within 3 Standard Business Standard Business Days
2 basic operations is not functioning and there is usually no
Hours of initial voice of initial notification
suitable work -around. Note that this may not be applicable to
notification
intermittent problems.
Non -Critical Failure - Non -Critical part or component failure Telephone conference Resolve within 180 days
occurs when a System component is not functioning, but the within 6 Standard Business in a Seller -determined
3 System is still useable for its intended purpose, or there is a Hours of initial notification Patch or Release.
reasonable workaround.
Inconvenience - An inconvenience occurs when System causes Telephone conference At Seller's discretion,
4 a minor disruption in the way tasks are performed but does not ✓within 2 Standard Business may be in a future
stop workflow. Days of initial notification Release.
Customer request for an enhancement to System functionality is Determined by Seller's If accepted by Seller's
the responsibility of Seller's Product Management. Product Management. Product Management, a
5 release date will be
provided with a fee
schedule, when
appropriate.
1.1 Reportina a Problem. Customer shall assign an initial Severity Level for each error reported, either verbally or in writing,
based upon the definitions listed above. Because of the urgency involved, Severity Level 1 or 2 problems must be reported verbally
to the Seller's call intake center. Seller will notify the Customer if Seller makes any changes in Severity Level (up or down) of any
Customer -reported problem.
1.2 Seller Response. Seller will use best efforts to provide Customer with a resolution within the appropriate Target Resolution
Time and in accordance with the assigned Severity Level when Customer allows timely access to the System and Seller diagnostics
indicate that a Residual Error is present in the Software. Target Resolution Times may not apply if an error cannot be reproduced on
a regular basis on either Seller's or Customer's Systems. Should Customer report an error that Seller cannot reproduce, Seller may
enable a detail error capture/logging process to monitor the System. If Seller is unable to correct the reported Residual Error within
the specified Target Resolution Time, Seller will escalate its procedure and assign such personnel or designee to correct such Residual
Error promptly. Should Seller, in its sole discretion, determine that such Residual Error is not present in its Release, Seller will verify:
(a) the Software operates in conformity to the System Specifications, (b) the Software is being used in a manner for which it was
intended or designed, and (c) the Software is used only with approved hardware or software. The Target Resolution Time shall not
commence until such time as the verification procedures are completed.
1.3 Error Correction Status Report. Seller will provide verbal status reports on Severity Level 1 and 2 Residual Errors. Written
status reports on outstanding Residual Errors will be provided to System Administrator on a monthly basis.
2. Customer Responsibility.
2.1 Customer is responsible for running any installed anti -virus software.
2.2 ODeratina Svstem COS") UDarades. Unless otherwise stated herein, Customer is responsible for any OS upgrades to its
System. Before installing any OS upgrade, Customer should contact Seller to verify that a given OS upgrade is appropriate.
3. Seller Responsibility.
3.1 Anti -virus software. At Customer's request, Seller will make every reasonable effort to test and verify specific anti -virus,
anti -worm, or anti -hacker patches against a replication of Customer's application. Seller will respond to any reported problem as an
escalated support call.
3.2 Customer Notifications. Seller shall provide access to (a) Field Changes; (b) Customer Alert Bulletins; and (c) hardware
and firmware updates, as released and if applicable.
3.3 Account Reviews. Seller shall provide annual account reviews to include (a) service history of site; (b) downtime
analysis; and (c) service trend analysis.
3.4 Remote Installation. At Customer's request, Seller will provide remote installation advice or assistance for
Updates.
SA 006960-000 Page 5 v 9.27.11
3.5 Software Release Compatibility. At Customer's request, Seller will provide: (a) current list of compatible hardware operating
system releases, if applicable; and (b) a list of Seller's Software Supplemental or Standard Releases
3.6 On -Site Correction. Unless otherwise stated herein, all suspected Residual Errors will be investigated and corrected from
Seller's facilities. Seller shall decide whether on -site correction of any Residual Error is required and will take appropriate action.
4. Compliance to Local. Countv. State and/or Federal Mandated Chanoes. (Applies to Software and interfaces to those
Products) Unless otherwise stated herein, compliance to local, county, state and/or federally mandated changes, including but not
limited to IBR, UCR, ECARS, NCIC and state interfaces are not part of the covered Services.
(The below listed terms are applicable only when the Maintenance and Support Agreement includes (a) Equipment which is shown
on the Description of Covered Products, Exhibit A to the Maintenance.)
5. On -site Product Technical Support Services. Seller shall furnish labor and parts required due to normal wear to restore the
Equipment to good operating condition.
5.1 Seller Response. Seller will provide telephone and on -site response to Central Site, defined as the Customer's primary
data processing facility, and Remote Site, defined as any site outside the Central Site, as shown in Support Plan Options and Pricing
Worksheet.
5.2 At Customer's request, Seller shall provide continuous effort to repair a reported problem beyond the PPM. Provided
Customer gives Seller access to the Equipment before the end of the PPM, Seller shall extend a two (2) hour grace period beyond
PPM at no charge. Following this grace period, any additional on -site labor support shall be invoiced on a time and material basis at
Seller's then current rates for professional services.
SA 006960-000 Page 6 v 9.27.11
Maintenance and Support Agreement - Number SA # 006960-000
Terms & Conditions
Idemia Identity & Security USA LLC, ("IDEMIA" or "Seller") having
a principal place of business at 5515 East La Palma Avenue,
Suite 100, Anaheim, CA 92807, and City of Fort Worth
("Customer"), having a place of business at 505 W. Felix Street,
Fort Worth, TX 76115, enter into this Maintenance and Support
Agreement ("Agreement"), pursuant to which Customer will
purchase and Seller will sell the maintenance and support
services as described below and in the attached exhibits. Seller
and Customer may be referred to individually as "party" and
collectively as "parties."
For good and valuable consideration, the parties agree as follows.
Section 1. EXHIBITS
The Exhibits listed below are incorporated into and made a part
of this Agreement. In interpreting this Agreement and resolving
any ambiguities, the main body of this Agreement will take
precedence over the Exhibits and any inconsistency between the
Exhibits will be resolved in the order in which they are listed below.
Exhibit -A "Description of Covered Products"
Exhibit-B "Support Plan"
Exhibit-C "Support Plan Options and Pricing Worksheet"
Section 2. DEFINITIONS
"Equipment" means the physical hardware purchased by
Customer from Seller pursuant to a separate System Agreement,
Products Agreement, or other form of agreement.
"IDEMIA" means Idemia Identity & Security USA LLC.
"IDEMIA Software" means Software that IDEMIA or Seller owns.
The term includes Product Releases, Standard Releases, and
Supplemental Releases.
"Non-IDEMIA Software" means Software that a party other than
IDEMIA or Seller owns.
"Optional Technical Support Services" means fee -based technical
support services that are not covered as part of the standard
Technical Support Services.
"Patch" means a specific change to the Software that does not
require a Release.
"Principal Period of Maintenance" or "PPM" means the specified
days, and times during the days, that maintenance and support
services will be provided under this Agreement. The PPM
selected by Customer is indicated in the Support Plan Options
and Pricing Worksheet.
"Products" means the Equipment (if applicable as indicated in the
Description of Covered Products) and Software provided by
Seller.
"Releases" means an Update or Upgrade to the IDEMIA Software
and are characterized as "Supplemental Releases," "Standard
Releases," or "Product Releases." A "Supplemental Release" is
defined as a minor release of IDEMIA Software that contains
primarily error corrections to an existing Standard Release and
may contain limited improvements that do not affect the overall
structure of the IDEMIA Software. Depending on Customer's
specific configuration, a Supplemental Release might not be
applicable. Supplemental Releases are identified by the third digit
of the three -digit release number, shown here as underlined:
1.2.3". A "Standard Release" is defined as a major release of
IDEMIA Software that contains product enhancements and
improvements, such as new databases, modifications to
databases, or new servers. A Standard Release may involve file
and database conversions, System configuration changes,
hardware changes, additional training, on -site installation, and
System downtime. Standard Releases are identified by the
second digit of the three -digit release number, shown here as
underlined: 1.2.3". A "Product Release" is defined as a major
release of IDEMIA Software considered to be the next generation
of an existing product or a new product offering. Product Releases
are identified by the first digit of the three -digit release number,
shown here as underlined: "1.2.3". If a question arises as to
whether a Product offering is a Standard Release or a Product
Release, IDEMIA's opinion will prevail, provided that IDEMIA
treats the Product offering as a new Product or feature for its end
user customers generally.
"Residual Error" means a software malfunction or a programming,
coding, or syntax error that causes the Software to fail to conform
to the Specifications.
"Services" means those maintenance and support services
described in the Support Plan and provided under this Agreement.
"Software" means the IDEMIA Software and Non-IDEMIA
Software that is furnished with the System or Equipment.
"Specifications" means the design, form, functionality, or
performance requirements described in published descriptions of
the Software, and if also applicable, in any modifications to the
published specifications as expressly agreed to in writing by the
parties.
"Standard Business Day" means Monday through Friday, 8:00
a.m. to 5:00 p.m. local time, excluding established IDEMIA
holidays.
"Standard Business Hour" means a sixty (60) minute period of
time within a Standard Business Day(s).
"Start Date" means the date upon which this Agreement begins.
The Start Date is specified in the Support Plan Options and
Pricing Worksheet.
"System" means the Products and services provided by Seller as
a system as more fully described in the Technical and
Implementation Documents attached as exhibits to a System
Agreement between Customer and Seller (or IDEMIA).
"Technical Support Services" means the remote telephonic
support provided by Seller on a standard and centralized basis
concerning the Products, including diagnostic services and
troubleshooting to assist Customer in ascertaining the nature of a
problem being experienced by the Customer, minor assistance
concerning the use of the Software (including advising or assisting
the Customer in attempting data/database recovery, database set
up, client -server advice), and assistance or advice on installation
of Releases provided under this Agreement.
"Update" means a Supplemental Release or a Standard Release.
"Upgrade" means a Product Release.
Section 3. SCOPE AND TERM OF SERVICES
3.1. In accordance with the provisions of this Agreement
and in consideration of the payment by Customer of the price for
the Services, Seller will provide to Customer the Services in
accordance with Customer's selections as indicated in the
Support Plan Options and Pricing Worksheet, and such Services
will apply only to the Products described in the Description of
Covered Products.
3.2. Unless the Support Plan Options and Pricing
Worksheet expressly provides to the contrary, the term of this
Agreement is one (1) year, beginning on the Start Date. This
annual maintenance and support period will automatically renew
upon the anniversary date for successive one (1) year periods
unless either party notifies the other of its intention to not renew
the Agreement (in whole or part) not less than thirty (30) days
before the anniversary date or this Agreement is terminated for
default by a party.
SA 006960-000 Page 7 v 9.27.11
3.3. This Agreement covers all copies of the specified
Software listed in the Description of Covered Products that are
licensed by Seller to Customer. If the price for Services is based
upon a per unit fee, such price will be calculated on the total
number of units of the Software that are licensed to Customer as
of the beginning of the annual maintenance and support period.
If, during an annual maintenance and support period, Customer
acquires additional units of the Software that is covered by this
Agreement, the price for maintenance and support services for
those additional units will be calculated and added to the total
price either (1) if and when the annual maintenance and support
period is renewed or (2) immediately when Customer acquires the
additional units, as IDEMIA determines. Seller may adjust the
price of the maintenance and support services effective as of a
renewal if it provides to Customer notice of the price adjustment
at least forty-five (45) days before the expiration of the annual
maintenance and support period. If Customer notifies Seller of its
intention not to renew this Agreement as permitted by Section 3.2
and later wishes to reinstate this Agreement, it may do so with
Seller's consent provided (a) Customer pays to Seller the amount
that it would have paid if Customer had kept this Agreement
current, (b) Customer ensures that all applicable Equipment is in
good operating conditions at the time of reinstatement, and (c) all
copies of the specified Software listed in the Description of
Covered Products are covered.
3.4. When Seller performs Services at the location of
installed Products, Customer agrees to provide to Seller, at no
charge, a non -hazardous environment for work with shelter, heat,
light, and power, and with full and free access to the covered
Products. Customer will provide all information pertaining to the
hardware and software with which the Products are interfacing to
enable Seller to perform its obligations under this Agreement.
3.5. All Customer requests for covered Services will be
made initially with the call intake center identified in the Support
Plan Options and Pricing Worksheet.
3.6. Seller will provide to Customer Technical Support
Services and Releases as follows:
3.6.1. Seller will provide unlimited Technical Support Services
and correction of Residual Errors during the PPM in accordance
with the exhibits. The level of Technical Support depends upon
the Customer's selection as indicated in the Support Plan Options
and Pricing Worksheet. Any Technical Support Services that are
performed by Seller outside the contracted PPM and any Residual
Error corrections that are outside the scope shall be billed at the
then current hourly rates. Technical Support Services will be to
investigate specifics about the functioning of covered Products to
determine whether there is a defect in the Product and will not be
used in lieu of training on the covered Products.
3.6.2. Unless otherwise stated in paragraph 3.6.3 or if the
Support Plan Options and Pricing Worksheet expressly provides
to the contrary, Seller will provide to Customer without additional
license fees an available Supplemental or Standard Release after
receipt of a request from Customer, but Customer must pay for
any installation or other services and any necessary Equipment
or third party software provided by Seller in connection with such
Supplemental or Standard Release. Any services will be
performed in accordance with a mutually agreed schedule.
3.6.3 Seller will provide to Customer an available Product
Release after receipt of a request from Customer, but Customer
must pay for all additional license fees, any installation or other
services, and any necessary Equipment provided by Seller in
connection with such Product Release. Any services will be
performed in accordance with a mutually agreed schedule.
3.6.4. Seller does not warrant that a Release will meet
Customer's particular requirement, operate in the combinations
that Customer will select for use, be uninterrupted or error -free,
be backward compatible, or that all errors will be corrected. Full
compatibility of a Release with the capabilities and functions of
earlier versions of the Software may not be technically feasible. If
it is technically feasible, services to integrate these capabilities
and functions to the updated or upgraded version of the Software
may be purchased at Customer's request on a time and materials
basis at Seller's then current rates for professional services.
3.6.5. Seller's responsibilities under this Agreement to provide
Technical Support Services shall be limited to the current
Standard Release plus the two (2) prior Standard Releases
(collectively referred to in this section as "Covered Standard
Releases."). Notwithstanding the preceding sentence, Seller will
provide Technical Support Services for a Severity Level 1 or 2
error concerning a Standard Release that precedes the Covered
Standard Releases unless such error has been corrected by a
Covered Standard Release (in which case Customer shall install
the Standard Release that fixes the reported error or terminate
this Agreement as to the applicable Software).
3.7. The maintenance and support Services described in
this Agreement are the only covered services. Unless Optional
Technical Support Services are purchased, these Services
specifically exclude and Seller shall not be responsible for:
3.7.1. Any service work required due to incorrect or faulty
operational conditions, including but not limited to Equipment not
connected directly to an electric surge protector, or not properly
maintained in accordance with the manufacturer's guidelines.
3.7.2. The repair or replacement of Products or parts resulting
from failure of the Customer's facilities, Customer's personal
property and/or devices connected to the System (or
interconnected to devices) whether or not installed by Seller's
representatives.
3.7.3. The repair or replacement of Equipment that has become
defective or damaged due to physical or chemical misuse or
abuse, Customer's negligence, or from causes such as lightning,
power surges, or liquids.
3.7.4. Any transmission medium, such as telephone lines,
computer networks, or the worldwide web, or for Equipment
malfunction caused by such transmission medium.
3.7.5. Accessories, custom or Special Products; modified units;
or modified Software.
3.7.6. The repair or replacement of parts resulting from the
tampering by persons unauthorized by Seller or the failure of the
System due to extraordinary uses.
3.7.7. Operation and/or functionality of Customer's personal
property, equipment, and/or peripherals and any application
software not provided by Seller.
3.7.8. Services for any replacement of Products or parts directly
related to the removal, relocation, or reinstallation of the System
or any System component.
3.7.9. Services to diagnose technical issues caused by the
installation of unauthorized components or misuse of the System.
3.7.10 Services to diagnose malfunctions or inoperability of
the Software caused by changes, additions, enhancements, or
modifications in the Customer's platform or in the Software.
3.7.11 Services to correct errors found to be caused by
Customer -supplied data, machines, or operator failure.
3.7.12. Operational supplies, including but not limited to, printer
paper, printer ribbons, toner, photographic paper, magnetic tapes
and any supplies in addition to that delivered with the System;
battery replacement for uninterruptible power supply (UPS); office
furniture including chairs or workstations.
3.7.13. Third -party software unless specifically listed on the
Description of Covered Products.
3.7.14. Support of any interface(s) beyond Seller -provided port
or cable, or any services that are necessary because third party
hardware, software or supplies fail to conform to the specifications
concerning the Products.
3.7.15. Services related to customer's failure to back up its data
or failure to use an UPS system to protect against power
interruptions.
SA 006960-000 Page 8 v 9.27.11
3.7.16. Any design consultation such as, but not limited to,
configuration analysis, consultation with Customer's third -party
provider(s), and System analysis for modifications or Upgrades or
Updates which are not directly related to a Residual Error report.
3.8. The Customer hereby agrees to:
3.8.1. Maintain any and all electrical and physical environments
in accordance with the System manufacturer's specifications.
3.8.2. Provide standard industry precautions (e.g. back-up files)
ensuring database security, per Seller's recommended backup
procedures.
3.8.3. Ensure System accessibility, which includes physical
access to buildings as well as remote electronic access. Remote
access can be stipulated and scheduled with customer; however,
remote access is required and will not be substituted with on -site
visits if access is not allowed or available.
3.8.4. Appoint one or more qualified employees to perform
System Administration duties, including acting as a primary point
of contact to Seller's Customer Support organization for reporting
and verifying problems, and performing System backup. At least
one member of the System Administrators group should have
completed Seller's End -User training and System Administrator
training (if available). The combined skills of this System
Administrators group should include proficiency with: the
Products, the system platform upon which the Products operate,
the operating system, database administration, network
capabilities such as backing up, updating, adding, and deleting
System and user information, and the client, server and stand
alone personal computer hardware. The System Administrator
shall follow the Residual Error reporting process described herein
and make all reasonable efforts to duplicate and verify problems
and assign a Severity Level according to definitions provided
herein. Customer agrees to use reasonable efforts to ensure that
all problems are reported and verified by the System
Administrator before reporting them to Seller. Customer shall
assist Seller in determining that errors are not the product of the
operation of an external system, data links between system, or
network administration issues. If a Severity Level 1 or 2 Residual
Error occurs, any Customer representative may contact Seller's
Customer Support Center by telephone, but the System
Administrator must follow up with Seller's Customer Support as
soon as practical thereafter.
3.9. In performing repairs under this Agreement, Seller may
use parts that are not newly manufactured but which are
warranted to be equivalent to new in performance. Parts replaced
by Seller shall become Seller's property.
3.10Customer shall permit and cooperate with Seller so that
Seller may periodically conduct audits of Customer's records and
operations pertinent to the Services, Products, and usage of
application and data base management software. If the results of
any such audit indicate that price has been understated, Seller
may correct the price and immediately invoice Customer for the
difference (as well as any unpaid but owing license fees). Seller
will limit the number of audits to no more than one (1) per year
except Seller may conduct quarterly audits if a prior audit
indicated the price had been understated.
3.11.If Customer replaces, upgrades, or modifies equipment, or
replaces, upgrades, or modifies hardware or software that
interfaces with the covered Products, Seller will have the right to
adjust the price for the Services to the appropriate current price
for the new configuration.
3.12Customer shall agree not to attempt or apply any update(s),
alteration(s), or change(s) to the database software without the
prior approval of the Seller.
Section 4. RIGHT TO SUBCONTRACT AND ASSIGN
Seller may assign its rights and obligations under this Agreement
and may subcontract any portion of Seller's performance called
for by this Agreement.
SA 006960-000 Page 9
Section 5. PRICING, PAYMENT AND TERMS
5.1 Prices in United States dollars are shown in the
Support Plan Options and Pricing Worksheet and are subject to
a 5% escalation fee for each subsequent support year. Unless
this exhibit expressly provides to the contrary, the price is
payable annually in advance. Seller will provide to Customer an
invoice, and Customer will make payments to Seller within
twenty (20) days after the date of each invoice. During the term
of this Agreement, Customer will make payments when due in
the form of a check, cashier's check, or wire transfer drawn on a
United States financial institution.
5.2. Overdue invoices will bear simple interest at the rate of
ten percent (10%) per annum, unless such rate exceeds the
maximum allowed by law, in which case it will be reduced to the
maximum allowable rate.
5.3 If Customer requests, Seller may provide services
outside the scope of this Agreement or after the termination or
expiration of this Agreement and Customer agrees to pay for
those services. These terms and conditions and the prices in
effect at the time such services are rendered will apply to those
services.
5.4 Price(s) are exclusive of any taxes, duties, export or
customs fees, including Value Added Tax or any other similar
assessments imposed upon Seller. If such charges are imposed
upon Seller, Customer shall reimburse Seller upon receipt of
proper documentation of such assessments.
Section 6. LIMITATION OF LIABILITY
This limitation of liability provision shall apply
notwithstanding any contrary provision in this Agreement.
Except for personal injury or death, Seller's (including any of
its affiliated companies) total liability arising from this
Agreement will be limited to the direct damages recoverable
under law, but not to exceed the price of the maintenance and
support services being provided for one (1) year under this
Agreement. ALTHOUGH THE PARTIES ACKNOWLEDGE THE
POSSIBILITY OF SUCH LOSSES OR DAMAGES, THEY
AGREE THAT SELLER (INCLUDING ANY OF ITS AFFILIATED
COMPANIES) WILL NOT BE LIABLE FOR ANY COMMERCIAL
LOSS; INCONVENIENCE; LOSS OF USE, TIME, DATA, GOOD
WILL, REVENUES, PROFITS OR SAVINGS; OR OTHER
SPECIAL, INCIDENTAL, INDIRECT, OR CONSEQUENTIAL
DAMAGES IN ANY WAY RELATED TO OR ARISING FROM
THIS AGREEMENT, THE SALE OR USE OF THE SYSTEM,
EQUIPMENT OR SOFTWARE, OR THE PERFORMANCE OF
SERVICES BY SELLER PURSUANT TO THIS AGREEMENT.
This limitation of liability will survive the expiration or
termination of this Agreement. No action for breach of this
Agreement or otherwise relating to the transactions
contemplated by this Agreement may be brought more than
one (1) year after the accrual of such cause of action, except
for money due upon an open account.
Section 7. DEFAULT/TERMINATION
7.1. If IDEMIA breaches a material obligation under this
Agreement (unless Customer or a Force Majeure causes such
failure of performance), Customer may consider IDEMIA to be in
default. If Customer asserts a default, it will give IDEMIA written
and detailed notice of the default. IDEMIA will have thirty (30)
days thereafter either to dispute the assertion or provide a written
plan to cure the default that is acceptable to Customer. If IDEMIA
provides a cure plan, it will begin implementing the cure plan
immediately after receipt of Customer's approval of the plan.
7.2. If Customer breaches a material obligation under this
Agreement (unless IDEMIA or a Force Majeure causes such
failure of performance); if Customer breaches a material
obligation under the Software License Agreement that governs
the Software covered by this Agreement; or if Customer fails to
pay any amount when due under this Agreement, indicates that it
is unable to pay any amount when due, indicates it is unable to
pay its debts generally as they become due, files a voluntary
petition under bankruptcy law, or fails to have dismissed within
ninety (90) days any involuntary petition under bankruptcy law,
v 9.27.11
IDEMIA may consider Customer to be in default. If IDEMIA
asserts a default, it will give Customer written and detailed notice
of the default and Customer will have thirty (30) days thereafter to
(i) dispute the assertion, (ii) cure any monetary default (including
interest), or (iii) provide a written plan to cure the default that is
acceptable to IDEMIA. If Customer provides a cure plan, it will
begin implementing the cure plan immediately after receipt of
IDEMIA's approval of the plan.
7.3. If a defaulting party fails to cure the default as provided
above in Sections 7.1 or 7.2, unless otherwise agreed in writing,
the non -defaulting party may terminate any unfulfilled portion of
this Agreement and may pursue any legal or equitable remedies
available to it subject to the provisions of Section 6 above.
7.4. Upon the expiration or earlier termination of this
Agreement, Customer and Seller shall immediately deliver to the
other Party, as the disclosing Party, all Confidential Information of
the other, including all copies thereof, which the other Party
previously provided to it in furtherance of this Agreement.
Confidential Information shall include: (a) proprietary materials
and information regarding technical plans; (b) any and all other
information, of whatever type and in whatever medium including
data, developments, trade secrets and improvements, that is
disclosed by Seller to Customer in connection with this
Agreement; (c) all geographic information system, address,
telephone, or like records and data provided by Customer to
Seller in connection with this Agreement that is required by law to
be held confidential.
Section 8. GENERAL TERMS AND CONDITIONS
8.1. Notices required under this Agreement to be given by
one party to the other must be in writing and either delivered in
person or sent to the address shown below by certified mail,
return receipt requested and postage prepaid (or by a recognized
courier service), or by facsimile with correct answerback received,
and shall be effective upon receipt
Customer: City of Fort Worth
Attn: James Rodriquez
505 W. Felix Street
Fort Worth. TX 76115
817-392-4286
Seller: Idemia Identity & Security USA LLC
Attn: Maintenance Agreements
5515 East La Palma Avenue. Suite 100
Anaheim. CA 92807
Phone: (714)238-2000 Fax: (714)632-2158
8.2. Neither party will be liable for its non-performance or
delayed performance if caused by an event, circumstance, or act
of a third party that is beyond such party's reasonable control.
8.3. Failure or delay by either party to exercise any right or
power under this Agreement will not operate as a waiver of such
right or power. For a waiver to be effective, it must be in writing
signed by the waiving party. An effective waiver of a right or
power shall not be construed as either a future or continuing
waiver of that same right or power, or the waiver of any other right
or power.
8.4. Customer may not assign any of its rights under this
Agreement without IDEMIA's prior written consent.
8.5. This Agreement, including the exhibits, constitutes the
entire agreement of the parties regarding the covered
maintenance and support services and supersedes all prior and
concurrent agreements and understandings, whether written or
oral, related to the services performed. Neither this Agreement
nor the Exhibits may not be altered, amended, or modified except
by a written agreement signed by authorized representatives of
both parties. Customer agrees to reference this Agreement on all
purchase orders issued in furtherance of this Agreement. Neither
party will be bound by any terms contained in Customer's
purchase orders, acknowledgements, or other writings (even if
attached to this Agreement).
8.6. This Agreement will be governed by the laws of the
United States to the extent that they apply and otherwise by the
laws of the State to which the Products are shipped if Licensee is
a sovereign government entity or the laws of the State of
Delaware if Licensee is not a sovereign government entity.
Section 9. CERTIFICATION DISCLAIMER
Seller specifically disclaims all certifications regarding the manner
in which Seller conducts its business or performs its obligations
under this Agreement, unless such certifications have been
expressly accepted and signed by an authorized signatory of
Seller.
Section 10. COMPLIANCE WITH APPLICABLE LAWS
The Parties shall at all times comply with all applicable
regulations, licenses and orders of their respective countries
relating to or in any way affecting this Agreement and the
performance by the Parties of this Agreement. Each Party, at its
own expense, shall obtain any approval or permit required in the
performance of its obligations. Neither Seller nor any of its
employees is an agent or representative of Customer.
Fiscal Funding Out. In the event no funds or insufficient funds
are appropriated by Customer in any fiscal period for any
payments due hereunder, Customer will notify Seller of such
occurrence and the Agreement shall terminate on the last day of
the fiscal period for which appropriations were received without
penalty or expense to the Customer of any kind whatsoever,
except as to the portions of the payments herein agreed upon for
which funds have been appropriated.
Right to Audit. Seller agrees that Customer shall, until the
expiration of three i3) years after final payment under the
Agreement, have access to and the right to examine any directly
pertinent books, documents, papers and records of Seller
involving transactions relating to the Agreement. Seller agrees
that Customer shall have access during normal working hours to
all necessary Seller facilities and shall be provided adequate and
appropriate workspace in order to conduct audits in compliance
with the provisions of this section. Customer shall give Seller
reasonable advance notice of intended audits.
IN WITNESS WHEREOF, the Parties have caused
this Agreement to be duly executed as of the day and year first
written above.
SA 006960-000 Page 10 v 9.27.11