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HomeMy WebLinkAboutC01-225 System Support Agreement with ECS� 4 ;$ SYSTEM SUPPORT AGREEMENT The parties to this agreement are: Eagle Computer Systems, Inc., a Delaware Corporation, ( "ECS ") and Eagle County Clerk, a governmental entity in the State of Colorado ( "CUSTOMER "). ECS hereby agrees to provide and CUSTOMER hereby agrees to obtain services as set forth in the following Attachments: [ x] Software Support Attachment The cost of these services .is $825.00 monthly for the period of August 1, 2001 through December 31, 2001 and $866.25 beginning January 1, 2002, plus any additional charges incurred as specified herein, and payable as set forth elsewhere in this agreement. . Eit! im Pal ty , , ay tei , i ii, iate t! is Ag, em , ie it, witl , a without cause, upo, , tj ii, ty (30) days' P1 io, wi itter, notice to the other party. Unless this Agreement is terminated prior to expiration of the term, this Agreement and all renewals hereof shall be automatically renewed for additional twelve -month periods. Upon each renewal, ECS may increase the annual cost of software support services by an amount equal to the increase in the Consumer Price Index for All Urban Consumers U.S. City Average (CPI -U) for the last published annual period ending prior to such renewal. In the absence of a recently published CPI -U, another published index that reasonably represents the average national inflationary increase may be substituted. THIS AGREEMENT IS THE EXCLUSIVE STATEMENT OF THE ENTIRE AGREEMENT BETWEEN THE PARTIES, AND SUPERSEDES ANY PRIOR ORAL OR WRITTEN REPRESENTATIONS OR AGREEMENTS BETWEEN THE PARTIES CONCERNING THE SUBJECT MATTER OF THIS AGREEMENT. THERE ARE NO WARRANTIES FROM ECS TO CUSTOMER EXCEPT ANY WHICH MAY BE SPECIFIED IN THIS AGREEMENT OR IN OTHER WRITINGS EXECUTED BY ECS. EXCEPT FOR ANY SUCH WRITTEN WARRANTIES, THERE ARE NO WARRANTIES BY ECS OF MERCHANTABILITY OF THE SUBJECTS OF THIS AGREEMENT, OR OF FITNESS OF THE SUBJECTS OF THIS AGREEMENT. THERE ARE NO WARRANTIES CONCERNING THE SUBJECTS OF THIS AGREEMENT WHICH EXTEND BEYOND THE DESCRIPTION ON THE FACE HEREOF. ANY AMENDMENTS, ADDENDA, ALTERATIONS OR MODIFICATIONS TO THE TERMS OR CONDITIONS OF THIS AGREEMENT SHALL BE IN WRITING AND SIGNED BY BOTH PARTIES. THIS AGREEMENT HAS BEEN READ IN ITS ENTIRETY AND EXECUTED BY AUTHORIZED REPRESENTATIVES OF THE PARTIES HERETO. CUSTOMER: Print Name: Tom C. Stomte` s.'� Title: Chairman - Board Xjo * Commissioners ( -ORXI� Date: 8/21/01 EAGLE COMPUTER SYSTEMS, INC., A Delaware corp ration By: Brock Taylor Client Services Man ger or Amy S. Woodworth Director � Date: fvF _ w SYSTEM SUPPORT AGREEMENT A. PAYMENT TERMS: ECS will invoice CUSTOMER at the beginning of each contract year for that year's standard charges. Additionally, ECS will invoice CUSTOMER at the beginning of each month for any other fees and charges accrued and all reimbursable expenses incurred during the previous month. If CUSTOMER fails to pay any charges when due and payable, CUSTOMER agrees that ECS shall havb the right to invoice and CUSTOMER will pay all costs, including reasonable attorney fees expended in collecting overdue charges and a late payment charge of 1.5% per month but not in excess of the lawful maximum on the unpaid balance. Prices and license fees are exclusive of all federal, state, municipal or other political subdivision, excise, sales, use, property, occupational, or like taxes now in force or enacted in the future and are therefore subject to an increase equal to any such taxes ECS may be required to collect or pay upon the sale or delivery of the Products and Services purchased or licensed hereunder. B. CONFIDENTIALITY: ECS acknowledges that during discussions with CUSTOMER leading up to this Agreement and during its performance, certain proprietary or confidential data of CUSTOMER may be disclosed to ECS or to ECS's employees or agents. ECS agrees that all data not normally available through other sources may be proprietary, and will be safeguarded by ECS with the same degree of care that it accords to ECS's own proprietary data. In particular: a) ECS or any of ECS's employees or agents shall not divulge, transfer, assign, sell, license, franchise, sublease or otherwise convey the identified CUSTOMER proprietary data in any form to a third party, person or organization except as may be specifically agreed to in writing by. CUSTOMER; and, b) in the event ECS shall attempt to use or convey any portion of the identified CUSTOMER proprietary data in a manner contrary to the terms of this Agreement, CUSTOMER shall have the right, in addition to any other remedies available to it, to injunctive relief enjoining such acts, it being acknowledged that other remedies alone may be inadequate. C. RISK OF LOSS: CUSTOMER shall be responsible for protecting its system from risk of loss, damage or destruction. In the event of such loss, damage or destruction, the item of the system so lost, damaged or destroyed will be replaced by ECS at the request and expense of CUSTOMER. D. LIABILITY: ECS shall not be liable for any loss, damage or claim resulting from these services, regardless of the form of action, except for loss or damage caused by the negligence of ECS. In no event shall ECS be liable for (1) any special, indirect, incidental, or consequential damage; (2) any damages resulting from loss of use, data or profits. E. DEFEND AND HOLD HARMLESS: ECS agrees to release, indemnify, defend and hold harmless. the CUSTOMER from any and all liability, loss or damage including reasonable costs of defense that they may suffer as a result of claims, demands, actions, or damages to any and all persons or property, costs or judgments against the CUSTOMER which result from the acts, omissions, or negligence of ECS, its officers, agents or employees. F. INDEMNIFICATION: CUSTOMER agrees to hold harmless and indemnify ECS from any and all liability, loss or damage including the reasonable costs of defense that ECS may suffer as a result of claims, demands, actions, or damages to any and all persons or.property, costs or judgments against ECS which results from the acts, omissions, negligence of the CUSTOMER, its officers, agents or employees. This indemnification will survive the termination of this Agreement. CUSTOMER'S remedies against ECS shall be limited to replacement or repair of any defective Products or Services, or, at the discretion of ECS, a refund of all sums paid by the CUSTOMER to ECS for the defective Products or Services and for any other goods or services rendered substantially worthless because of defective Products or Services.. C SYSTEM SUPPORT AGREEMENT G. TERMINATION: Termination of this Agreement shall not affect either party's pre - termination obligations and any such termination is without prejudice to the enforcement of any undischarged obligations existing at the time of termination. H. WORKING SPACE: CUSTOMER shall provide ECS with sufficient working space, time, and access to CUSTOMER'S personnel and computer systems so that ECS may support and /or provide updates to the system(s) specified herein. MISCELLANEOUS: 1. ASSIGNMENT: This Agreement is not assignable by CUSTOMER without the prior written consent of ECS, nor by ECS without the prior written consent of the CUSTOMER. Any such attempted assignment shall be void. 2. NOTICE: All notices which CUSTOMER or ECS may have cause to give to the other shall be delivered in writing, effective as of the time of sending, and effective if sent to the last known address of the party to whom it is directed: 3. APPLICABLE LAW: This agreement shall be governed by the laws of the State of Colorado. 4. SEVERABILITY: If any provision of this agreement is held to be void or unenforceable by the courts in connection with litigation over this contract, the validity of the remaining provisions shall not be affected and the rights and obligations of the parties shall be construed and enforced as if the contract did not contain the particular provision held to be void or unenforceable. 5. LEGAL EXPENSES: If there is legal action concerning the subject matter of this agreement the prevailing party of this agreement shall be entitled to recover its reasonable attorney's fees and other litigation expenses, such as those for discovery proceedings, and employee expenses arising from pursuit of such legal action. If either party to this agreement prevails only in part, then it shall be entitled to recover that part of its litigation expenses as the court may deem just. 6. AMENDMENT: This agreement may only be amended by a writing which is executed by all parties hereto. 7. COMMERCIAL PURPOSE: CUSTOMER acknowledges that it is entering into this agreement for a commercial purpose, and that this is not a consumer transaction. 8. NO JOINT VENTURE: Nothing contained in this Agreement shall be construed to imply that a joint venture or partnership is created by and between the parties hereto. 9. EXCUSABLE DELAYS: Both parties shall be excused for delay in the performance of any obligations hereunder when such delay is the result of or attributable to the elements, acts of God, governmental authority, delays in transportation or any other cause beyond their reasonable control. 3 C SYSTEM SUPPORT AGREEMENT SOFTWARE SUPPORT ATTACHMENT - TO SYSTEM SUPPORT AGREEMENT During the term of this Agreement, ECS shall provide the following services in support of the Software, during normal ECS working hours. Support includes toll -free telephone software support; remote modem software support; and all Software updates, enhancements, and bug fixes. Should an on -site visit be required to resolve a software problem, COUNTY will be charged only for travel and associated expenses per the then current ECS' Preferred Rate Schedule. All time spent in resolving the software problem is covered by this Agreement. Support: ECS shall maintain a telephone and modem support center that allows COUNTY to report system problems and seek assistance in use of the supported Software. ECS shall maintain a trained staff capable of rendering the services set forth herein. ECS shall be responsible for using all reasonable diligence in correcting verifiable and reproducible Errors when reported to ECS in accordance with ECS' standard reporting procedures. ECS shall initiate work in a diligent manner toward development of an Error Correction. Following completion of the Error Correction, ECS shall provide the Error Correction through a "fix" consisting of sufficient programming and operating instructions to implement the Error Correction as soon as practicable. Customer Requested Modifications: In the event that ECS is requested by the COUNTY to provide programming modifications to existing Software during the term specified herein, unless otherwise specified herein, COUNTY will be charged for programming per the then current ECS Preferred Rate Schedule. ECS shall consider and evaluate the development of Enhancements for the specific use of COUNTY and shall respond to COUNTY's requests for additional services pertaining to the Software, provided that such assistance, if agreed to be provided, shall be subject to the then current ECS Preferred Rate Schedule, Updates: ECS may, from time to time, issue new Updates of the Software, containing Error Corrections, minor Enhancements, and in certain instances if ECS so elects, major Enhancements. During the term specified herein, ECS shall provide COUNTY with one copy of each new Update, along with reasonable assistance to help COUNTY install and operate each new Update. Major Enhancements: ECS may, from time to time, offer major Enhancements to its customers generally for an additional charge. ECS shall allow COUNTY to purchase, or license each major Enhancement at a percent off the retail list price. ECS shall not require COUNTY to purchase such Enhancements to continue to receive support or correct errors covered by this Support Agreement. ECS will update at no cost under this Agreement only those Supported Software systems that are required to be updated in order to operate the latest release of Software, and only once the new version of Software has been released. ECS will not update non -ECS supported software at no cost under this Agreement just because a new release is available. ECS shall consider and evaluate the development of Enhancements for the specific use of CUSTOMER and shall respond to CUSTOMER's requests for additional services pertaining to the Software, provided that such assistance, if agreed to be provided, shall be subject to the then current Preferred Rate Schedule. CUSTOMER shall install PC Anywhere or other communication software designated by ECS and allow ECS remote access for purposes of analyzing and updating the System and correcting problems. El 8 i # SYSTEM SUPPORT AGREEMENT DESCRIPTION 1. CRIS +plus 11 licenses SOFTWARE SUPPORT ATTACHMENT TO SYSTEM SUPPORT AGREEMENT SUPPORTED SOFTWARE 5 B DEFINITIONS: C-2 SYSTEM SUPPORT AGREEMENT SOFTWARE SUPPORT ATTACHMENT TO SYSTEM SUPPORT AGREEMENT "Acceptance" is the date defined in the Sales Agreement whereby CUSTOMER purchased the products supported under this agreement. "Enhancement" refers to any modification or addition that, when made or added to the Software, materially changes its utility, efficiency, functional capability, or application, but that does not constitute solely an Error Correction. Enhancements may be designated by ECS as minor or major, depending on ECS's assessment of their value and of the function added to the preexisting Software. "Error" is any failure of the Software to conform in all material respects to the functional specifications of the Software. However, any I non- conformity resulting from CUSTOMER's misuse or improper use of the Software or combining or merging the Software with any hardware or software not supplied by ECS, or not authorized to be so combined or merged by ECS, shall not be considered an Error. "Error Correction" is either a software modification or addition that, when made or added to the Software, establishes material conformity of the Software to the functional specifications, or a procedure or routine that, when observed in the regular operation of the Software, eliminates the practical adverse effect on CUSTOMER of such nonconformity. "Normal. Business Hours" are the hours between 6:00 a.m. and 6:00 p.m., Mountain Time, on Monday thFough Friday, excluding regularly scheduled holidays of ECS. "Software" refers to each of the computer software products described herein. Each Software consists of both computer software and software documentation (e.g., user manuals, ,technical manuals, system manuals, keyboard function strips, and like items). Additions, corrections, updates, and enhancements of Software also fall within the definition of Software. "Software" refers both to the intangible information comprising the products and, as the context requires, every copy of the information. "Updates" means new versions of the Software, which new versions may include both Error Corrections and Enhancements. 6