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HomeMy WebLinkAboutKiva Software Support Agreement 2000 (80100-SSA) - 2000 08 01KIi~A Software Support Agreement NAME AND ADDRESS OF CUSTOMER: CITY OF WINTER SPRINGS Agreement Date August 1,.2000 1126 E. State Road 434 Winter Sprints, Florida, 32708 Agreement Number 80100-SSA KIVA, a Utah corporation ("KIVA") and the Customer agree that KIVA will provide Customer with unlimited support on KIVA's software for the purpose of providing telephone consultation support, updates and attempting to resolve problems on a best et7orts basis, for the consideration of the amount specified under the heading "Support Fee" subject to the following terms and conditions: t. SUPPORT FEE. Customer shall purchase support according to KIVA's then current support pricing schedule. 2. TERMS. Customer shall pay the amount specified under the heading "Annual Maintenance Fee" as shown in Attachment A of this Agreement prior to the beginning of the service period or renewal period. If payment is not received when due, KIVA reserves the right to suspend Customer's support until payment is received; however, such suspension will not relieve Customer of the obligation to make the payment. If any payment hereunder is not received from Customer by KIVA on or before any due date, KIVA may at its sole discretion, elect any or either of the following courses of action: 2. I KIVA may unilaterally cancel the Annual Support Agreement and invoice Customer for any time and materials expended since the expiration of the paid portion(s) of the Annual Support Agreement. 2.2 KIVA may refuse to provide to Customer any and all services of any kind if any payment is delinquent. 3. COVERAGE. Because of the integrated nature of KIVA's software, this Support Agreement must cover all KIVA's applications software in use on Customer's hardware and not a part thereof. Additionally, this Support Agreement only covers KIVA's application software and third party software or products listed in Attachment A. 4. LIABILITY. Liabilities and warranties are limited to those described in this agreement. KIVA shall not be liable, in any event, for special and/or consequential damages. 5. JURISDICTION. This agreement shall be governed and enforced by the laws of the state that govern the Software Agreement for the licensed KIVA products. If any part of this Agreement violates applicable law, that part of the Agreement shall be deemed to be amended to the extent necessary to comply with the law. (. DESCRIPTION OF SERVICES 6.1 Program Defect Support Upon Customer providing KIVA's Technical Support Department with a KIVA Software Advisory Notice (SAN) (see sample in Attachment B) detailing the nature of a problem caused by a defect in the program, KIVA will respond by issuing defect correction information such as Corrected Documentation, Corrected Code, Notice of Availability of Corrected Code, or a restriction or a bypass. Customer may be required to cover the cost of media, shipping and handling charges in responding to Customers request. Customer will notify KIVA and will be responsible for the preparation and submission of documentation of any suspected defect to KIVA in writing and, if needed, supplemental media acceptable by KIVA for all such defects. Telephone notification and/or submission is not acceptable for Program Defect Support. KIVA will make reasonable etTorts to detect errors, in part, by attempting to duplicate errors. 6.2 Telephone Consultation Support Telephone Consultation Support will be provided only to computer operators who have successfully completed an approved KIVA product Applications Specialist training course. KIVA reserves the right to charge time and materials rates to any customer using untrained operators. The following Telephone Consultation Support services will be provided during business hours when Customer calls KIVA's regular phone numbers: a. Problem determination and/or preparation of documentation for Program Detect Support. b. Program maintenance, either via telephone consultation or maintenance distribution media at KIVA's option. c. Program improvements or modifications. In responding to each service call, KIVA will make a reasonable attempt to instruct the Customer in proper use of the licensed program, engage in problem determination and resolution, and keep the program maintained and functioning. All equipment, service, or long distance telephone charges are supplied by customer when incurred as a result of Customer's call to KIVA.. When telephone consultation support is required, and when Customer's failure to create a proper Backup makes recovery substantially more ditlicult, regardless of whether the original problem was program defect related, operational or for any other reason, KIVA may charge the Customer to attempt to repair or resolve Customer's problem at KIVA's current time and materials rate. 6.3 U dates Updates are program corrections or enhancements to licensed software within the scope of purchase described in Attachment A of this Agreement including corrections and enhancements. KIVA will provide software programs, training materials and reference manual updates through normal software releases at no extra charge. Additional software packages, add-on modules, applications, and custom programming are not covered in this Agreement and will be billed at KIVA's current rates. KIVA will determine which enhancements will be part of a software release, add-on package or custom programming, and what materials will be included in each software release. It is the sole responsibility of Customer to perform the installation of updates and program modifications. KIVA will provide instructions to accomplish the installation of such updates and program moditcations. 6.4 Remote Site Support Remote Site Support allows KIVA's Technical Support Personnel to do support work on the Customer's computer using a modem and special software as though the technician were at the Customer's site and is limited to the following: MAINTAUR.WP6 03-26-91 Rev 5/2/95; WinterSprings K/l0/00 Page 1 a. Customer will obtain rile communications software which will enable KIVA's Technical Support Personnel to communicate via telephone with llte Customer's computer and allow on-line support help. b. "fhe detenninution of whether or not remote site cotrununication will he used will he at the discretion of KIVA technical support personnel. 7. SOFTWARE SUPPORT LIMITATIONS. KIVA will not he responsible for any excluded services. "fhe excluded services include but are not limited lo: tc. KIVA shall not be responsible for software failures due to Customer's acts of negligence, Customer-caused damage and/or destruction of software programs and/or data tiles, software not purchased from KIVA, or software programs and/or data not named in this agreement. h. KIVA will not be responsible for any modifications to software or operating system (and/or operating system configuration) unless said moditications were performed by KIVA. c. KIVA will not he responsible for work or programs created by Customer using data management systems, model or graph software systems, word processing systems, or any other similar software systems. d. KIVA shall not be responsible for service and/or support of operators who have not been fully trained by KIVA or its authorized representatives in an approved product applications specialist training course. - e. KIVA shall not be responsible for damage caused by accident, misuse, neglect, sabotage, or failure to follow KIVA's instructions as to use and maintenance of hardware and/or software. f. Work perforned to correct data or establish a properly running system within the scope of purchased licensed programs that was deemed due to a hardware malfunction, operating system error, or any other cause not directly related to KIVA programs and/or established program support or maintenance procedures will not be covered under a support agreement and will he charged at the current time and material rates. g. KIVA shall not be responsible for failure to render services due to earthquake, strike, flood, fire or other causes beyond its control, or by an act of C:od. h. KIVA shall not be responsible for work performed by others or for "single user" software used by Customer in a "multi-user" or "network" system. i. KIVA will not be responsible for changes of hardware or required software by Customer. Customer should notify KIVA of intention to change machine on which licensed programs were licensed. Any costs incurred by KIVA due to any such change(s) made by the Customer will be billed to Customer at current time and material rates. j. Duplicates or copies of original distribution media are not covered under the definition of Updates and will be billed at rates established on KIVA's price lists. 7.1 Failure to Llse Proper Backup. When telephone consultation support is required, and when Customer's failure to create a proper Backup makes recovery substantially more difficult, regardless of whether the original problem was "bug" related, operational or for any other reason, KIVA may charge the Customer to attempt to repair or resolve Customer's problem at time and materials support costs. This condition is not covered tinder Telephone Consultation Support or any other program support service offered by KIVA. 7.2 Oracle Product Support. If the Customer acquires Oracle Run-Time Products Yiom KIVA then Customer may be eligible for Oracle Product Support $om KIVA. If the Customer acquires Oracle Products in either Run-Time or Full-Use licensed versions from other sources then KIVA will not be able to otter Oracle Product Support. In either case, KIVA will not he responsible for Oracle Product problems or questions if Oracle Product Support is not provided by KIVA. It shall be the responsibility of the Customer to maintain the latest version of the Oracle Product(s) with which the KIVA Product(s) are currently provided. KIVA will not be responsible for supporting KIVA products on out-dated versions of the Oracle Product(s) used. 8. TERM AND TERMINATION. The etlective date ofthis Agreement shall be the date the last party hereto executes this Agreement. The \~ term of this Agreement shall be for one (1) year subject to annual one year renewals upon Customer's payment of the annual support fee. Unless terntinated by KIVA pursuant to paragraph 2.1, this Agreement shall terminate at such time Customer, at its option, chooses to discontinue payment of the annual support tee. Notwithstanding, if this Agreement terminates KIVA will, upon Customer's request, continue to provide product support at KIVA's hourly technician rates. 9. LIMITATIONS OF REMEDIES. For any material breach of the terms and conditions ofthis Agreement by any party, the non-breaching party shall have all remedies available by law, including but not limited to, actions in equity and for specific performance unless another remedy is specifically and expressly provided for in this Agreement or such remedies are limited by other provisions of this Agreement. In no event shall KIVA he liable for special, incidental, or consequential damages resulting from loss of use, or loss of data arising out of or in connection with the use of the software of hardware products. In the event of loss of data caused by the software products, and not Customer's improper actions, KIVA shall assist Customer in recovering lost data. 10. GENERAL a. Customer shall not assign, sublicense or transfer any of Customer's rights prior to this Agreement without the prior written consent of KIVA. b. This Agreement constitutes the entire agreement between KIVA and Customer and supersedes any prior agreement or understanding, written or oral relating to support services. Except as provided herein, this Agreement may not be varied, amended or supplemented except in writing and properly executed by both parties. c. If any provision ofthis Agreement shall he adjudged by a court to be void or unenforceable, the same shall in no way atTect any other provision of this Agreement or the validity or the enforceability ofthis Agreement. d. All rights and remedies provided herein are cumulative and are in addition to all other rights and remedies available at law or equity. e. Any notice required by this Agreement shall he deemed to have been properly given if sent by registered or certified mail to the address stated above or such other address as may be designated in writing by either party. f The waiver of any breach or default ofthis Agreement shall constitute a waiver only as to such particular breach or default and shall not constitute a waiver of any other breach or default. 11. CONFIDENTIALITY MAINTAGR.WP6 03-2G-91 Rev 5/2/95; WinterSprings K/10/00 Page 2 IQVA agrees that all data and information on Customer's existing computer system shall be kept confidential by KIVA and shall only be accessed by IQVA for purposes of performing services under this Agreement and the implementation of the software products heins provided thereunder. IQVA further agrees that said data and information shall not be copied or transferred to any person or entity for private, commercial, business or individual use, unless such use is expressly authorized by Customer in writing. Customer expressly authorizes IQVA` s use of such data for the purposes of support under this Agreement 12. TIME IS OF THE ESSENCE Time is of the essence of this Agreement, and the parties agree to cooperate with each other in performing their respective obligations under this Agreement. 13. NO ASSIGNMENT This Agreement shall not be assigned or transferred by KIVA unless the Customer approves of the assignment or transfer in writing. Customer will not unreasonably withhold approval of assignment or transfer. 14. THIItD PARTY RIGHTS This Agreement is not a third party beneficiary contract and shall not in any respect whatsoever create any rights on behalf of any party not expressly a party to this agreement. 15. PUBLIC RECORDS AND OPEN MEETING LAWS KIVA hereby acknowledges that Customer, as a Florida municipal corporation, is subject to the Florida Public Records Act and Sunshine Law. IQVA further acknowledges that under the Public Records Act and Sunshine Law, the Customer must permit the public to inspect and/or copy all public records which the Customer makes or receives in the course of conducting Customer's business and must hold meetings of the City Commission and various City boards and committees in the public, unless particular information is exempt by Florida law from public records disclosure or a particular meeting is not subject to the Sunshine Law. IQVA acknowledges that any record, document, computerized information and program, audio or video tape, photograph, or other writing of ICIVA related, directly or indirectly, to this Agreement may be demed to be a Public Record whether in the possession or control of Customer or ICIVA. Said record, document, computerized information and program, audio or video tape, photograph, or other writing of 1QVA deemed a Public Record is subject to the provisions of Florida Status Chapter 119 and may not be destroyed without the specific written approval of the Customer. Upon request by the Customer, KIVA shall promptly supply copies of said records to Customer. Customer aclurowledges that KIVA claims that the software products and related documentation (i.e. users' manuals and updates thereto) are trade secrets pursuant to US and Utah trade secret law and to Florida Statutes Section 815.045, and Customer shall post notice of claimed trade secret status in appropriate locations and shall comply with KIVA licensing requirements intended to protect such trade secrets. Upon request by the Customer, KIVA shall promptly supply copies of said public records to the Customer. All books, cards. registers, receipts, documents and other papers in connection with this Agreement shall during normal business hours of IQVA be open and freely exhibited to the Customer for the purposes of examination and audit at Customer's expense. All public meetings will be held in accordance with the Florida Sunshine Law. 16. INDEPENDENT CONTRACTOR IQVA shall be considered independent contractors under this Agreement. 17. SOVEREIGN IMMUNITY Nothing contained in this Agreement shall be construed as a waiver of the Customer's sovereign immunity under Florida Statutes Section 768.28 or other limitations imposed on the Customer's potential liability under state or federal law. 18. GENERAL LIABILITY INSURANCE For all services performed hereunder,lQVA shall purchase and maintain, at its own expense, such general, professional and automobile insurance to cover claims for damages because of bodily injury or death of any person, property damage or any negligent acts of I{IVA arising in any way out of the services performed b_y IQVA under this Agreement. The insurance shall have minimum limits of coverage of $1,000,000.00 per occurrence combined single limit for bodily injury liability and property damage liability. This shall include, but not be limited to, automobile liability of owned vehicles, hired and non-owned vehicles and employee non-ownership. For all services performed pursuant to this Agreement, the quality as required by this paragraph during the full term of this Agreement. Upon the etTective date of this Agreement, KIVA shall promptly provide the City with appropriate certificate of insurance evidencing that KIVA has complied with the insurance requirements of this paragraph. KIVA shall have Customer listed as an additional insured on such certificate of insurance, and such certificate of insurance shall require that the Customer be provided with thirty (30) days written notice of cancellation. 20. INDEMNIFICATION AND HOLD HARMLESS Notwithstanding any other provision of this Agreement, KIVA agrees, to the fullest extent permitted by law, to indemnify and hold harmless the Customer and its employees, oli"icers, and attorneys form and against all claims, losses, damages, or liability (including reasonably attorney's fees through any and all administrative, trial, post judgment and appellate proceedings) to or for bodily injury, death or property damage, directly or indirectly arising from the negligent or intentional acts, errors or omissions resulting from KIVA's or its directors, ot~icer's, employee's contractor's and agent's: (i) performance of services pursuant to this Agreement; (ii) failure to properly train employees under their control or direction; and (iii) travel and lodging related to performing the services required by this Agreement. KIVA agrees, to the fullest extent permitted by law, to indemnify and hold harmless the Customer and its employees, ofI-ices, and attorneys form and against all claims, losses, damages, or liability (including reasonable attorney's fees through any and all administrative.. trial, post judgment and appellate proceedings) resulting from IQVA's or its director's officer's, employee's contractor's and agent's: (i) failure to remit any local, state and federal taxes due by I{IVA as a result of this Agreement; and (ii) failure to pay and subcontractors retained by IQVA to perform any service or provide any products under this Agreement. The indemnification provided above shall obligate IQVA to defend at its own expense any and all claims as described above of every name that may he brought against Customer or its employees, officers, and attorneys. in claiming any indemnification hereunder, Customer shall promptly provide IQVA with written notice of any claim which Customer believes falls within the scope of the foregoing paragraphs. Customer may, at its own expense, assist in the defense if it so chooses provided that IQVA shall control such defense and all negotiations relative to the settlement of MAINTAGR.WPG U3-2G-91 Itev 5/2/95; WinterSprings R/10/00 Page 3 any such claim and Curlher provided that any settlement intended to bind the Customer shall not be final without the Customer's written consent which shall not be unreasonably withheld. Notwithstanding, indenu~itication under this Section is not sufficient to absolve Customer of any and all liability, the Customer shalt retain the right to assist in the defense without limiting the inde-nnitication and hold harmless provisions hereunder. KIVA's liability under this indemniticatiou and hold harmless provision shall be limited to the insurance limits required by this Agreement. This provision shall survive the termination of this Agreement but shall noL extend any applicable statute of limitations. IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed on the day and year first above written. CUSTOMER: CITY OF \VINTER SPRINGS 1126 E. S4ate Road 434 Winter Sprints, Florida,/3g2iry3y~ By: -----~~~-/~../~~ ~ - ---- ----------- ' ~~ Title: --~~-~--MSe,.C"-~---------------------- Date:---~---~-~- -~-~------------------------------------ KIVA: 9662 South 90 as Sandy, UT 70 - ~ ~. By:- -- -=---- -- -- --------------- ---------------- ~~Zv/orn Date:-----f/-- -ttt-----___-_--------------------------- MAINTAGR.WPG U3-26')1 Revs/2/95; WinterSpringsR/10/00 Page4 ATTACHMENT A SUPPORT PRICING SCHEDULE KIVA APPLICATIONS SOFTWARE COVERED BY THIS SUPPORT AGREEMENT List Annual User license Maint Product Description Level Fee Fee LAND INFORMATION SYSTEM 2 - IG $ 18,700 $ 2,992 PERMITS & INSPECTION SYSTEM 2 - IG $ 2S,000 $ 4,000 KIVA REQUEST FOR SERVICE SYSTEM 2 - 1G $ 12,100 $ 1,93G KIVAWORD MICROSOFT WORD INTERFACE 2 - 1G $ 7,700 $ 1,232 MAINTr\Ci12.WPG 03-2G-91 Rev S/2/9S; WinterSprings R/l0/00 Page S ATTACHMENT B -SAMPLE. KIVA SnFTWARF. Af'Tinrr wnTi~-~ KIVA Software Action Notice SAN Number Client Date Client Reference Application Contact Form Name Phone Form Version SAN Type ~ Bug Enhancement Explanation Priority Requested ~ High n Medium L~Ji Low Field Name Trigger Name DESCRIPTION ATTACHMENTS Oracle Error Printout ~ Screen Dump ~ Narrative ~ Report Sample Other FOR KIVA USE ONLY Entered by/Date QA by/Date Resolved by/Date Cleared by/Date /projzc[s/mastcr/kivasan wpb 5/95, Win[zrSpnngs H/10/00