HomeMy WebLinkAboutContract 38230 CITY SECRETARY NO, �3L3 _
Contract between City of Fort Worth and Identix Incorporated
1.0 DEFINITION OF BUYER - The City of Fort Worth, its officers, agents, servants,
employees, contractors and subcontractors that are authorized to act on behalf of various
City departments, bodies or agencies.
2.0 DEFINITION OF SELLER - The consultant, contractor, supplier, vendor or other
provider of goods and/or services, its officers, agents, servants, employees, contractors
and subcontractors who act on behalf of the entity under a contract with the City of Fort
Worth.
3.0 PUBLIC INFORMATION - Any information submitted to the City of Fort Worth
(the "City") could be requested by a member of the public under the Texas Public
Information Act. See TEX. Gov'T CODE ANN. §§ 552.002, 552.128(c) (West Supp.
2006). If the City receives a request for a Seller's information, the Seller listed in the
request will be notified and given an opportunity to make arguments to the Texas
Attorney General's Office (the "AG") regarding reasons the Seller believes that its
information may not lawfully be released. If Seller does not make arguments or the AG
rejects the arguments Seller makes, Seller's information will be released.
4.0 PROHIBITION AGAINST PERSONAL INTEREST IN CONTRACTS - No
officer or employee of Buyer shall have a financial interest, direct or indirect, in any
contract with Buyer or be financially interested, directly or indirectly, in the sale to Buyer
of any land, materials, supplies or services, except on behalf of Buyer as an officer or
employee. Any willful violation of this section shall constitute malfeasance in office, and
any officer or employee found guilty thereof shall thereby forfeit his office or position.
Any violation of this section with the knowledge, expressed or implied, of the person or
corporation contracting with the City Council shall render the contract invalid by the City
Manager or the City Council. (Chapter XXVII, Section 16, City of Fort Worth Charter)
5.0 ORDERS -
5.1 No employees of the Buyer or its officers, agents, servants, contractors
and subcontractors who act on behalf of various City departments, bodies or
agencies are authorized to place orders for goods and services without providing
approved contract numbers, purchase order numbers, or release numbers issued
by the Buyer. The only exceptions are Purchasing Card orders and bona fide
emergencies. In the case of emergencies, the Buyer's Purchasing Division will
place such orders.
5.2 Acceptance of an order and delivery on the part of the Seller without an
approved contract number, purchase order number, or release number issued by
the Buyer may result in rejection of delivery, return of goods at the Seller's cost
and/or non-payment.
02-1 1 -09 A 18 : 28 I N p � �r
Contract between City of Fort Worth and Identix Incorporated "`_" _a.--fie 1 of 8
6.0 SELLER TO PACKAGE GOODS - Seller will package goods in accordance with
good commercial practice. Each shipping container, shall be clearly and permanently
marked as follows: (a) Seller's name and address: (b) Consignee's name, address and
purchase order or purchase change order number; (c) Container number and total number
of container, e.g., box 1 of 4 boxes; and (d) Number of the container bearing the packing
slip. Seller shall bear the cost of packaging unless otherwise provided. Goods shall be
suitably packed to secure lowest transportation costs and to conform to requirements of
common carriers and any applicable specifications. Buyer's count or weight shall be final
and conclusive on shipments not accompanied by packing lists.
7.0 SHIPMENT UNDER RESERVATION PROHIBITED - Seller is not authorized
to ship the goods under reservation, and no tender of a bill of lading will operate as a
tender of goods.
8.0 RISK OF LOSS - The risk of loss of the goods shall not pass to Buyer until Buyer
actually receives and takes possession of the goods at the point or points of delivery after
inspection and acceptance of the goods.
9.0 DELIVERY TERMS AND TRANSPORTATION CHARGES — Freight terms
shall be F.O.B. Destination, Freight Prepaid and Allowed, unless delivery terms are
specified otherwise in Seller's bid. Buyer agrees to reimburse Seller for transportation
costs in the amount specified in Seller's bid or actual costs, whichever is lower, if the
quoted delivery terms do not include transportation costs; provided, Buyer shall have the
right to designate what method of transportation shall be used to ship the goods.
10.0 PLACE OF DELIVERY - The place of delivery shall beset forth in the "Ship to"
block of the purchase order, purchase change order, or release order.
11.0 RIGHT OF INSPECTION - Buyer shall have the right to inspect the goods upon
delivery before accepting them. Seller shall be responsible for all charges for the return
to Seller of any goods rejected as being nonconforming under the specifications.
12.0 INVOICES -
12.1 Seller shall submit separate invoices in duplicate, on each purchase order
or purchase change order after each delivery. Invoices shall indicate the purchase
order or purchase change order number. Invoices shall be itemized and
transportation charges, if any, shall be listed separately. A copy of the bill of
lading and the freight waybill, when applicable, should be attached to the invoice.
Seller shall mail or deliver invoices to Buyer's Department and address as set
forth in the block of the purchase order, purchase change order or release order
entitled "Ship to." Payment shall not be made until the above instruments have
been submitted after delivery and acceptance of the goods and/or services.
12.2 Seller shall not include Federal Excise, State or City Sales Tax in its
invoices. The Buyer shall furnish a tax exemption certificate.
Contract between City of Fort Worth and Identix Incorporated Page 2 of 8
13.0 PRICE WARRANTY -
13.1 The price to be paid by Buyer shall be that contained in Seller's bid which
Seller warrants to be no higher than Seller's current prices on orders by others for
products of the kind and specification covered by this agreement for similar
quantities under like conditions and methods of purchase. In the event Seller
breaches this warranty, the prices of the items shall be reduced to Seller's current
prices on orders by others, or in the alternative upon Buyer's option, Buyer shall
have the right to cancel this contract without liability to Seller for breach or for
Seller's actual expense. The aforementioned remedies constitute Buyer's sole and
exclusive remedies for Seller's breach of this warranty.
13.2 Seller warrants that no person or selling agency has been employed or
retained to solicit or secure this contract upon an agreement or understanding for
commission, percentage, brokerage or contingent fee, excepting bona fide
employees of bona fide established commercial or selling agency is maintained by
Seller for the purpose of securing business. Buyer's sole remedy for Seller's
breach of this warranty shall be to cancel this contract without liability.
14.0 INDEMNIFICATION. Seller shall indemnify, defend and hold harmless Buyer
from and against all liabilities, damages, costs or expenses (including reasonable
attorney's fees) payable or paid by Buyer to third parties resulting from any final judicial
decision without opportunity for appeal arising from claims by such third parties that any
use of the products provided pursuant to the contract by Buyer in accordance with the
provisions of the contract infringes any currently issued and validly existing United
States patent, United States trademark, copyright or trade secret of such third parties.
Buyer shall promptly notify Seller of any such claim or proceeding and shall not settle any
such claim or proceeding without Seller's prior written consent. Seller shall have the right to
control the defense of any such claim. Buyer shall have the right at its expense to
participate in the defense thereof with counsel of its choice, provided that Seller shall have
the right at all times to retain or resume control of the conduct of such defense. If
equitable relief is threatened or obtained against the use by Buyer as a direct result of any
product, Seller will, at its option and expense, either (i) procure for Buyer the right under
such copyright or trademark to license or use as appropriate, the product; (ii) replace the
product with other suitable, functionally-equivalent and non-infringing products; (iii)
modify the product so as to make it non-infringing without substantially reducing its utility;
or (iv)terminate the contract with immediate effect upon written notice to Buyer and (a)
in the case of software products, refund the license fees paid by Buyer to Seller for the
allegedly infringing materials during the 12 month period immediately prior to the date
Buyer received notice of any threat of equitable relief or (b) in the case of hardware
products, accept the return of all products that are the subject of the claim and refund the
amount paid by Buyer to Seller for such items during the 12 month period immediately
prior to the date Buyer received notice of any threat of equitable relief. In any event,
the foregoing obligation of Seller does not apply with respect to products (i) made in
whole or in part in accordance to Buyer's specifications. (ii) modified after shipment by
Seller, if the alleged infringement relates to such modification. (iii) which are combined
Contract between City of Fort Worth and Identix Incorporated Page 3 of 8
with other products, processes or materials where the alleged infringement relates to such
combination, (iv) to the extent that Buyer continues allegedly infringing activity after
being notified thereof or after being informed of modifications that would have avoided
the alleged infringement, or (v) where Buyer's use of the products is not strictly in
accordance with the license granted herein or the intended use of such products."
15.0 CANCELLATION - Buyer shall have the right to cancel this contract
immediately for default on all or any part of the undelivered portion of this order if Seller
breaches any of the terms hereof, including warranties of Seller, or if Seller files for
bankruptcy. Such right of cancellation is in addition to and not in lieu of any other
remedies, which Buyer may have in law or equity.
16.0 TERMINATION - The performance of work under this order may be terminated
in whole or in part by Buyer, with or without cause, at any time upon the delivery to
Seller of a written "Notice of Termination" specifying the extent to which performance of
work under the order is terminated and the date upon which such termination becomes
effective. Such right of termination is in addition to and not in lieu of rights of Buyer as
set forth in clause 13, herein.
17.0 ASSIGNMENT - DELEGATION -No right, interest or obligation of Seller under
this contract shall be assigned or delegated without the written agreement of Buyer'
Purchasing Manager. Any attempted assignment or delegation of Seller shall be wholly
void and totally ineffective for all purposes unless made in conformity with this
paragraph.
18.0 WAIVER - No claim or right arising out of a breach of this contract can be
discharged in whole or in part by a waiver or renunciation of the claim or right unless the
waiver or renunciation is supported by consideration in writing and is signed by the
aggrieved party.
19.0 MODIFICATIONS - This contract can be modified or rescinded only by a written
agreement signed by both parties.
20.0 INTERPRETATION AND PRIOR EVIDENCE - This writing is intended by the
parties as a final expression of their agreement and is intended also as a complete and
exclusive statement of the terms of their agreement. No course of prior dealings between
the parties and no usage of trade shall be relevant to supplement or explain any term used
in this agreement. Acceptance of or acquiescence in a course of performance under this
agreement shall not be relevant to determine the meaning of this agreement even thought
the accepting or acquiescing party has knowledge of the performance and opportunity for
objection. Whenever a term defined by the Uniform Commercial Code (UCC) is used in
this agreement, the definition contained in the UCC shall control.
21.0 APPLICABLE LAW - This agreement shall be governed by the Uniform
Commercial Code wherever the term "Uniform Commercial Code" or "UCC'' is used. It
shall be construed as meaning the Uniform Commercial Code as adopted and amended in
Contract between City of Fort Worth and Identix Incorporated Page 4 of 8
the State of Texas. Both parties agree that venue for any litigation arising from this
contract shall be in Fort Worth, Tarrant County, Texas. This contract shall be governed,
construed and enforced under the laws of the State of Texas.
22.0 INDEPENDENT CONTRACTOR - Seller shall operate hereunder as an
independent contractor and not as an officer, agent, servant or employee of Buyer. Seller
shall have exclusive control of, and the exclusive right to control, the details of its
operations hereunder, and all persons performing same, and shall be solely responsible
for the acts and omissions of its officers, agents, employees, contractors and sub-
contractors. The doctrine of respondent superior shall not apply as between Buyer and
Seller, its officers, agents, employees, contractors and subcontractors. Nothing herein
shall be construed as creating a partnership or joint enterprise between Buyer and Seller,
its officers, agents, employees, contractors and subcontractors.
23.0 INDEMNIFICATION: Seller agrees to defend, indemnify and hold harmless
Buyer from and against any liability, damages, fees, expenses and costs (including
defense costs) resulting from third party claims, demands and lawsuits (each a "Claim")
for personal injury, death or damage to property that become payable or are paid by
Buyer to third parties resulting from any final judicial decision, without opportunity for
appeal, to the extent such liability results from the negligent, willful misconduct or other
unlawful acts or omissions of Seller, its personnel or agents in the course of the
rendering of the services. Buyer shall notify Seller within ten (10) days of receiving
notice or becoming aware of any such Claim and shall not settle any such Claim without
Seller's prior written consent. Seller shall have the right to control the defense of any
such Claim. Buyer shall have the right at its own expense to participate in the defense
thereof with counsel of Buyer's choice; provided, however, that Seller shall have the
right at all times to retain or resume control of the conduct of such defense. In any event,
the foregoing obligation of Seller does not apply with respect to any Claim that arises
out of Buyer's own negligence, willful misconduct or other unlawful acts or omissions.
Under no circumstances will Seller's obligation or liability under this indemnification
obligation exceed the aggregate amount of fees for the services paid by Buyer to Seller
under this Agreement.
24.0 SEVERABILITY - In case any one or more of the provisions contained in this
agreement shall for any reason, be held to be invalid, illegal or unenforceable in any
respect, such invalidity, illegality or unenforceability shall not affect any other provision
of this agreement, which agreement shall be construed as if such invalid, illegal or
unenforceable provision had never been contained herein.
25.0 FISCAL FUNDING LIMITATION - In the event no funds or insufficient funds
are appropriated and budgeted or are otherwise available by any means whatsoever in any
fiscal period for payments due under this contract, then Buyer will immediately notify
Seller of such occurrence and this contract shall be terminated on the last day of the fiscal
period for which appropriations were received without penalty or expense to Buyer of
any kind whatsoever, except to the portions of annual payments herein agreed upon for
which funds shall have been appropriated and budgeted or are otherwise available.
Contract between City of Fort Worth and Identix Incorporated Page 5 of 8
26.0 NOTICES TO PARTIES - Notices addressed to Buyer pursuant to the provisions
hereof shall be conclusively determined to have been delivered a the time same is
deposited in the United States mail, in a sealed envelope with sufficient postage attached,
addressed to Purchasing Manager, City of Forth Worth, Purchasing Division, 1000
Throckmorton, Fort Worth, Texas 76102, and notices to Seller shall be conclusively
determined to have been delivered at the time same is deposited in the United States mail,
in a sealed envelope with sufficient postage attached, addressed to the address given by
Seller in Identix Incorporated's Maintenance Agreement Addendum Quotation, (Quote
ID K-2664-5).
27.0 NON-DISCRIMINATION - This contract is made and entered into with reference
specifically to Chapter 17, Article III, Division 3 ("Employment Practices"), of the City
Code of the City of Fort Worth (1986), as amended, and Seller hereby covenants and
agrees that Seller, its employees, officers, agents, contractors or subcontractors, have
fully complied with all provisions of same and that nb no employee, participant,
applicant, contractor or subcontractor has been discriminated against according to the
terms of such Ordinance by Seller, its employees, officers, agents, contractor or
subcontractors herein.
28.0 RIGHT TO AUDIT - Seller agrees that the Buyer shall, until the expiration of
three (3) years after final payment under this contract, have access to and the right to
examine and copy any directly pertinent books, computer disks, digital files, documents,
papers and records of the Seller involving transactions relating to this contract. Seller
agrees that the Buyer 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. Buyer shall pay Seller
for reasonable costs of any copying Buyer performs on Seller's equipment or requests
Seller to provide. The Buyer shall give Seller reasonable advance notice of intended
audits.
29.0 In accordance with the provisions of the Americans With Disabilities Act of 1990
(ADA), Seller warrants that it will not unlawfully discriminate on the basis of disability
in the availability, terms and/or conditions of employment for applicants for employment
with, or employees of Seller. Seller warrants it will fully comply with the ADA' s
provisions and any other applicable federal, state and local laws concerning disability and
will defend, indemnify and hold harmless Buyer from and against any liability, damages,
fees, expenses and costs (including defense costs) resulting from third party claims,
demands and lawsuits (each a "Claim") for Seller's alleged failure to comply with above-
referenced laws concerning disability discrimination in the availability, terms and/or
conditions of employment with Seller that become payable or are paid by Buyer to third
parties resulting from any final judicial decision, without opportunity for appeal, to the
extent such liability results from the negligent, willful misconduct or other unlawful acts
or omissions of Seller, its personnel or agents in the course of the rendering of the
services. Buyer shall notify Seller within ten (10) days of receiving notice or becoming
aware of any such Claim and shall not settle any such Claim without Seller's prior written
consent. Seller shall have the right to control the defense of any such Claim. Buyer shall
Contract between City of Fort Worth and Identix Incorporated Page 6 of 8
have the right at its own expense to participate in the defense thereof with counsel of
Buyer's choice; provided, however, that Seller shall have the right at all times to retain or
resume control of the conduct of such defense. In any event, the foregoing obligation of
Seller does not apply with respect to any Claim that arises out of Buyer's own negligence,
willful misconduct or other unlawful acts or omissions. Under no circumstances will
Seller's obligation or liability under this indemnification obligation exceed the aggregate
amount of fees for the services paid by Buyer to Seller under this Agreement.
30.0 INCORPORATION BY REFERENCE — The terms of(1) Identix Incorporated's
Maintenance Agreement Addendum Quotation, (Quote ID K-2664-S) and (2) Identix
Incorporated System Maintenance Terms and Conditions, attached as Exhibits "A" and
"B," are incorporated into this contract the same as if fully set forth herein.
31.0 ORDER OF PRECEDENCE — In the event of any conflict between (1) this
document (Contract between City of Fort Worth and Identix Incorporated), (2) Identix
Incorporated's Maintenance Agreement Addendum Quotation, (Quote ID K-2664-S) and
(3) Identix Incorporated System Maintenance Terms and Conditions, the documents will
control in the following order of precedence:
1. This document (Contract between City of Fort Worth and Identix
Incorporated); and then
2. Identix Incorporated's Maintenance Agreement Addendum Quotation, (Quote
ID K-2664-S); and then
3. Identix Incorporated System Maintenance Terms and Conditions.
ACCEPTANCE AND DELIVERY ON THE PART OF THE VENDOR WITHOUT AN
APPROVED PURCHASE ORDER MAY RESULT IN REJECTION OF DELIVERY,
RETURN OF GOODS AT THE VENDOR'S COST AND NON-PAYMENT. PLEASE
ENSURE ALL EMPLOYEES ARE AWARE OF THIS CITY OF FORT WORTH
POLICY.
CITY OF FORT WORTH IDENTIX
Tom Higgins
Assistant City Manager (�
Date: Z���/O9 Date: I Z l I O
Contract between City of Fort Worth and Identix Incorporated Page 7 of 8
ATTEST:
City Secretary
Date: 1-2
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Contract Authorization
Contract No.
M&C No. /C&r /26qtt2&0
APPROVED AS TO FORM AND
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Assistant City Attorney
Date:
Contract between City of Fort Worth and Identix Incorporated Paae 8 of 8
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IDENTIX INCORPORTED
SYSTEM MAINTENANCE TERMS AND CONDITIONS
for use with
U.S. End User Customers
covering
Identix®Live Scan Product Line
I. GENERAL SCOPE OF COVERAGE tariffs, taxes, and all other delivery related
charges.
Subject to payment in full of the applicable • Identix shall make available to Customer one
maintenance fees for the system ("System") described copy (in electronic or other standard form) of
in Identix Incorporated's ("Identix") current each Update (defined herein) for those System
Maintenance Agreement Addendum ("Addendum") components that are developed by Identix and
with customer ("Customer"), Identix, or its authorized for which Identix, in its sole discretion, elects
agents or subcontractors, shall provide the System to develop and generally make available to
maintenance services ("Services") set forth and in customers whose Systems are under warranty
accordance with the terms herein (this "Agreement") or under a current Identix Maintenance
and the Addendum. The terms of the Addendum are Agreement Addendum. Customer shall
hereby incorporated into this Agreement by this provide Identix with continuous network or
reference. dial-up access to the System (whether stand
alone or connected to a central site), and
H. MAINTENANCE SERVICES Identix shall deliver the Update via this remote
means of delivery. In the event continuous
The Services provided by Identix are those services network or dial-up access is not available for
selected by Customer from one or more of the 2417 Maintenance Services and 915
following maintenance services programs: Maintenance Services Customers, then Identix
shall install the Update during any
A. Included With All Remedial Maintenance Services. subsequently scheduled on-site visit by Identix
Included With All Remedial Maintenance Services are for service of the System. An "Update"means
as follows: a new release of such System software
• Unlimited 24/7 telephone technical support for components that are developed by Identix
System hardware and software from the which contain (i) bug fixes, corrections, or a
Identix TouchCare Support Center via Identix work-around of previously identified errors
toll free telephone number. with such software, or (ii) minor
• TouchCare Support Center managed problem enhancements, improvements, or revisions
escalation, as required, to Identix' technical with substantially similar (but not new)
support staff to resolve unique problems. functionality to the original licensed System
• Identix shall furnish all parts and components software.
necessary for the service and maintenance of
the System. Replacement parts shall be sent to B. 24/7 Maintenance Services. Identix' 2417
the Customer. All replaced defective parts Maintenance Services are as follows:
shall become Identix' property. Identix shall • Customer will receive a telephone response to
determine if a replacement part is necessary. service calls within one (1) hour from the time
Replacement parts and components may be the Customer places a service call with
new or refurbished. Unless otherwise agreed Identix' Help Desk.
by Identix, replacement parts and components • Identix' Help Desk will attempt problem
needed at international destinations shall be resolution via telephonic verbal and dial-in
shipped by Identix to the Customer-specified troubleshooting prior to dispatching an Identix
United States destination, and the Customer field service engineer to Customer's facility
shall arrange for shipment of the parts and for on-site service.
components to the final international • If on-site service is necessary, such service
destination. In the event Identix ships shall be provided 24/7, including holidays.
replacement parts and components to an Identix shall use its best efforts to have an
international destination, the Customer shall be Identix' field service engineer at the
responsible for all shipping expenses, duties, Customer's facility within four (4) hours from
the time the engineer is dispatched by Identix'
Version]/2007/21 March2007 l
Help Desk for customers located within a 100 development effort. In such event, Identix
mile radius of an authorized Identix' service will provide Customer with a quote for
location and within 24 hours for customers developing and providing Customer with any
located outside such 100 mile radius. such applications and changes. Table updates
• At no additional charge, Identix will provide are treated as Updates and will be made
Customer with up to four (4) Customer- available to Customer in accordance with
requested type of transaction changes to Section II.A. of this Agreement.
existing type of transaction applications;
provided, however, that any such type of D. Help Desk Maintenance Services. Identix' Help
transaction change does not, in the sole Desk Maintenance Services are as follows:
opinion of Identix' Development • The Services do not include any Identix on-site
Management Team, require a significant maintenance services. The Customer agrees to
development effort. In such event, Identix provide the on-site personnel to assist the
will provide Customer with a quote for Identix Help Desk with troubleshooting,
developing and providing Customer with any module replacement, and installation of
such applications and changes. Table updates Updates,as required.
are treated as Updates and will be made • Customer shall maintain at least one (1)
available to Customer in accordance with Identix trained System manager on the
Section II.A. of this Agreement. Customer's System support staff during the
term of such Services period contained in the
C. 9/5 Maintenance Services. Identix' 915 applicable Addendum, and such Customer
Maintenance Services are as follows: System manager shall be responsible for
• Customer will receive a telephone response to periodically backing-up System software in
service calls within one (1)hour from the time accordance with Identix' periodic
Customer places a service call with Identix' requirements. Unless otherwise agreed in
Help Desk. writing by Identix, the Customer shall be
• Identix' Help Desk will attempt problem responsible for the installation of each Update.
resolution via telephonic verbal and dial-in • Customer will receive a telephone response to
troubleshooting prior to dispatching an Identix service calls within one (1)hour from the time
field service engineer to Customer's facility the Customer places a service call with
for on-site service. Identix' Help Desk.
• If on-site service is necessary, such service • Identix shall furnish all parts and components
shall be provided nine (9) business hours (that necessary for the maintenance of the System.
is, 8:00 a.m. to 5:00 p.m.) per day, five Identix' shipment of a replacement part to
business days per week. Identix shall use its Customer will be initiated promptly after the
best efforts to have an Identix' field service Identix' Help Desk determines the need for
engineer at Customer's facility within eight(8) such item. Replacement part orders initiated
working hours from the time the engineer is prior to 3:00 p.m. Central shall be shipped the
dispatched by Identix' Help Desk if same business day, where orders initiated after
Customer's facility is located within a 100 3:00 p.m. Central shall be shipped the next
mile radius of an authorized Identix' service business day. All shipments are made via next
location and within 24 hours if Customer's day priority air.
facility is located outside such 100 mile radius. • If a defective part is required by Identix to be
• Upon Identix' acceptance of Customer's returned to Identix, the packaging material
request for after hours service, Customer shall used in shipment of the replacement part must
pay for such after hours service on a time and be reused to return the defective part. [Note:
materials basis at Identix' then current rates. defective parts are not repaired and returned to
• At no additional charge, Identix will provide Customer. Customer will be invoiced for any
Customer with up to four (4) Customer- defective parts that are not returned to Identix
requested type of transaction changes to within two (2) weeks after receipt of the
existing type of transaction applications; replacement part. Identix is not responsible for
provided, however, that any such type of any markings (i.e., asset tags) that Customer
transaction change does not, in the sole may place on System components. It is
opinion of Identix' Development Customer's responsibility to remove such
Management Team, require a significant markings.]
Version 1/2007/21 March2007 2
• Upon Customer's request for Identix on-site components not authorized by Identix are fitted to
service, Identix shall use its best efforts to have the System.
an Identix field service engineer at the • Maintenance required due to failures caused by
Customer's facility within 48 hours from the Customer or Customer's software or other
time the engineer is dispatched by Identix' software, hardware or products not licensed by
Help Desk. Customer shall pay for such on- Identix to Customer.
site service on a time and travel basis at • Providing or installing updates or upgrades to any
Identix' then current rates and travel policies, third party(i.e., Microsoft,Oracle, etc.) software.
respectively. Prior to dispatch of an Identix • Providing consumable parts and components (i.e.,
engineer, Customer shall either provide Identix platens, toner cartridges, etc.); such items are
with a purchase order ("P.O."), complete replaced at the Customer's expense.
Identix' P.O. Waiver form, or provide Identix . Maintenance required due to failures resulting
with a valid credit card number. from software viruses, worms, Trojans, and any
other forms of destructive or interruptive means
E. Preventive Maintenance Services. Identix' introduced into the System.
Preventive Maintenance Services are as follows: • Maintenance required due to failures caused by
• Preventive maintenance service calls consist of Customer facility issues such as inadequate power
System cleaning, verification of calibration, sources and protection or use of the System in
and verification of proper System environmental conditions outside of those
configuration and operation in accordance with conditions specified in Identix' System
Identix' specifications for such System. documentation.
Identix and Customer will seek to agree upon
the scheduling of the preventive maintenance B. Availability of Additional Services. At Customer's
service call promptly after commencement of request, Identix may agree to perform the excluded
the term of this Agreement and the services described immediately above in accordance
commencement of any renewal term. with Identix' then current rates. Other excluded
• Preventive maintenance service calls are only services that may be agreed to be performed by Identix
available in connection with Identix' 24/7 shall require Identix' receipt of a Customer P.O.,
Maintenance Services and Identix' 9/5 Customer's completion of Identix' P.O. Waiver form,
Maintenance Services offerings. Preventive or Customer providing Identix with a valid credit card
maintenance service calls are priced on a per number before work by Identix is commenced.
call basis in accordance with Identix' then
current published prices for such Services. C. Non-Registered System Components. Any System
Preventive Maintenance Services may not be components not registered in the Addendum for which
available for certain System components. Services are requested by Customer may be required to
have a pre-maintenance inspection by Identix before
III. EXCLUSIONS FROM SERVICES being added to the Addendum and this Agreement.
This inspection will also be required if this Agreement
A. Exclusions. The Services do not include any of the has expired by more than thirty (30) days. Identix'
following: inspection will be billed at Identix' current inspection
• System relocation. rate plus travel expenses and parts(if any required).
• Additional training beyond that amount or level of
training originally ordered by Customer. D. Third Part' Hardware and Software. Customer
• Maintenance support or troubleshooting for shall be solely responsible for obtaining from Identix
Customer provided communication networks. or an Identix authorized or identified vendor, at
• Maintenance required to the System or its parts Customer's sole expense: (i) all Identix and third party
arising out of misuse, abuse, negligence, software that may be required for use in connection
attachment of unauthorized components (including with any Updates, major enhancements or new
software), or accessories or parts, use of sub- versions; and (ii) all hardware that may be required for
standard supplies, or other causes beyond Identix' the use of any Updates, major enhancements or new
control. versions. Identix will specify the hardware and third
• Maintenance required due to the System being party software requirements for any Updates.
modified, damaged, altered, moved or serviced by
personnel other than Identix' authorized service IV. SERVICE CALLS
representatives, or if parts, accessories, or
Version 1/2007/21 March2007 3
Customer may contact Identix' TouchCare Support Identix shall provide the Services hereunder in a
Center by calling 1-888-HELP-IDX (888-435-7439). professional and workmanlike manner by duly
Service calls under this Agreement will be made at the qualified personnel. EXCEPT FOR THIS LIMITED
installation address identified in the Addendum or as WARRANTY, IDENTIX HEREBY DISCLAIMS
otherwise agreed to in writing. ALL WARRANTIES, EXPRESS AND IMPLIED,
INCLUDING, BUT NOT LIMITED TO, THE
V. TERM AND TERMINATION IMPLIED WARRANTIES OF MERCHANTABILITY
AND FITNESS FOR A PARTICULAR PURPOSE IN
This term of this Agreement shall commence upon REGARD TO THE SERVICES, SOFTWARE, AND
Identix' receipt of the annual maintenance fee reflected ANY OTHER GOODS PROVIDED HEREUNDER.
in the Addendum and shall continue for a period of one IN NO EVENT SHALL IDENTIX' AGGREGATE
(1) year. This Agreement may be renewed for LIABILITY TO CUSTOMER ARISING OUT OF,OR
additional one (1) year terms upon the parties' mutual RELATED TO, THIS AGREEMENT, UNDER ANY
agreement and Customer's execution of an updated CAUSE OF ACTION OR THEORY OF RECOVERY,
Addendum and Identix' receipt of the applicable EXCEED THE NET FEES FOR IDENTIX'
annual maintenance fee reflected in the updated SERVICES ACTUALLY PAID BY CUSTOMER TO
Addendum. Either party may terminate this IDENTIX UNDER THE APPLICABLE
Agreement in the event of a material breach by the ADDENDUM TO THIS AGREEMENT DURING
other party that remains uncured for a period of thirty THE TWELVE (12) MONTHS PRIOR TO THE
(30) days from the date the non-breaching party DATE THE CUSTOMER'S CAUSE OF ACTION
provided the other with written notice of such breach. AROSE. IN NO EVENT SHALL IDENTIX BE
LIABLE TO CUSTOMER FOR ANY INDIRECT,
VI. FEES FOR SERVICES SPECIAL, INCIDENTIAL, CONSEQUENTIAL OR
PUNITIVE DAMAGES (INCLUDING, BUT NOT
A. Fees. The initial fee for Services under this LIMITED TO, LOST PROFITS OR REVENUE;
Agreement shall be the amount set forth in the LOSS, INACCURACY, OR CORRUPTION OF
Addendum. The annual maintenance fee during any DATA OR LOSS OR INTERRUPTION OF USE; OR
renewal term will be Identix' current rates in effect at FOR ANY MATTER BEYOND IDENTIX'
the time of renewal. Customer agrees to pay the total REASONABLY CONTROL,EVEN IF ADVISED OF
of all charges for Services annually in advance within THE POSSIBILITY OF SUCH DAMAGES. NO
thirty (30) days of the date of Identix' invoice for such ACTION, REGARDLESS OF FORM, MAY BE
charges. Customer understands that alterations, BROUGHT BY CUSTOMER MORE THAN TWO
attachments, specification changes, or use of sub- (2) YEARS AFTER THE DATE THE CAUSE OF
standard supplies that cause excessive service calls, ACTION AROSE.
may require an increase in Service fees during the term
of this Agreement at the election of Identix, and VIII. LIMITED LICENSE TO UPDATES
Customer agrees to promptly pay such charges when
due. Identix may deliver Identix-developed Updates to
Customer. The terms of Identix' end user license for
B. Failure to Pam. If Customer does not pay the Identix' software delivered as part of the System
Identix' fees for Services or parts as provided shall govern Customer's use of the Updates.
hereunder when due: (i) Identix may suspend
performance of its obligation to provide Services until IX. MISCELLANEOUS
the account is brought current; and (ii) Identix may, at
its discretion, provide the Services at current "non This Agreement shall be governed by and construed
contract/per call" rates on a COD basis. Customer according to the laws of the State of Minnesota,
agrees to pay Identix' costs and expenses of collection excluding its conflict of laws provisions. This
including the maximum attorneys' fee permitted by Agreement constitutes the entire agreement between
law (said fee not to exceed 25% of the amount due the parties regarding the subject matter described
hereunder). herein and may not be modified except in writing
signed by duly authorized representatives of Identix
VII. LIMITED WARRANTY / DISCLAI_MER / and the Customer. This Agreement may not be
LIMITATION OF LIABILITY assigned by Customer without the prior express written
consent of Identix.
Version 1/2007/2 1 March2007 4