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HomeMy WebLinkAboutFUTURE TOUCH TECHNOLOGY 1-2007 INSURANbE ON FILE WORK MAY PROCEED UNTIL INSURANCE EXPIRES ~"5 - ~-oB CLERK OF COUNCIL DATE: 5 - 3 -07 N-2007 -048 AGREEMENT BETWEEN THE CITY OF SANTA ANA AND FUTURE TOUCH TECHNOLOGY 0: '?v.lt'\CJi THIS AGREEMENT, made and entered into this 3?utuay of March, 2007 by and C u.v.. lh" between Future Touch Techn~logy, a Calif~rnia corpora.tion (hereinafter "Consultant"), and the 2. '~) City of Santa Ana, a charter Clty and mumclpal corporatIOn organIzed and eXlstmg under the Constitution and laws ofthe State of California (hereinafter "City"). RECITALS A. The City desires to retain a consultant having special skills and knowledge to provide oversight the City with on-call kiosk maintenance. B. Consultant represents that Consultant is able and willing to provide such services to the City. C. In undertaking the performance of this Agreement, Consultant represents that it is knowledgeable in its field and that any services performed by Consultant under this Agreement will be performed in compliance with such standards as may reasonably be expected from a professional consulting firm in the field. NOW THEREFORE, in consideration of the mutual and respective promises, and subject to the terms and conditions hereinafter set forth, the parties agree as follows: 1. SCOPE OF SERVICES Consultant shall perform those on-call kiosk maintenance services for the pricing as set forth in Exhibit A to this Agreement. 2. COMPENSATION a. City agrees to pay, and Consultant agrees to accept as total payment for its services, the rates and charges identified in Exhibit A. The total sum to be expended under this Agreement, shall not exceed Ten Thousand Dollars ($10,000.00) during the term of this Agreement. b. Payment by City shall be made within thirty (30) days following receipt of proper invoice evidencing work performed, subject to City accounting procedures. Payment need not be made for work which fails to meet the standards of performance set forth in the Recitals which may reasonably be expected by City. 3. TERM This Agreement shall commence on the date first written above and terminate on April 30,2008, unless terminated earlier in accordance with Section 12, below. The term of this Agreement may be extended upon a writing executed by the Executive Director of the Public Works Agency and the City Attorney. 4. INDEPENDENT CONTRACTOR Consultant shall, during the entire term of this Agreement, be construed to be an independent contractor and not an employee of the City. This Agreement is not intended nor shaH it be construed to create an employer-employee relationship, a joint venture relationship, or to allow the City to exercise discretion or control over the professional manner in which Consultant performs the services which are the subject matter of this Agreement; however, the services to be provided by Consultant shall be provided in a marmer consistent with all applicable standards and regulations governing such services. Consultant shall pay all salaries and wages, employer's social security taxes, unemployment insurance and similar taxes relating to employees and shall be responsible for all applicable withholding taxes. 5. INSURANCE Prior to undertaking performance of work under this Agreement, Consultant shall maintain and shall require its subcontractors, if any, to obtain and maintain insurance as described below: a. Commercial General Liability Insurance. Due to the nature of the services being provided by Consultant, commercial general liability insurance shall not be required. b. Business automobile liability insurance, or equivalent form, with a combined single limit of not less than $1,000,000 per occurrence. Such insurance shall include coverage for owned, hired and non-owned automobiles. c. Worker's Compensation Insurance. In accordance with the provisions of Section 3300 of the Labor Code, Consultant, if Consultant has any employees, is required to be insured against liability for worker's compensation or to undertake self-insurance. Prior to commencing the performance of the work under this Agreement, Consultant agrees to obtain and maintain any employer's liability insurance with limits not less than $1,000,000 per accident. 2 d. The following requirements apply to the insurance to be provided by Consultant pursuant to this section: (i) Consultant shall maintain all insurance required above in full force and effect for the entire period covered by this Agreement. (ii) Certificates of insurance shall be furnished to the City upon execution of this Agreement and shall be approved in form by the City Attorney. (iii) Certificates and policies shaH state that the policies shall not be canceled or reduced in coverage or changed in any other material aspect without thirty (30) days prior written notice to the City. e. If Consultant fails or refuses to produce or maintain the insurance required by this section or fails or refuses to furnish the City with required proofthat insurance has been procured and is in force and paid for, the City shall have the right, at the City's election, to forthwith terminate this Agreement. Such termination shall not effect Consultant's right to be paid for its time and materials expended prior to notification of termination. Consultant waives the right to receive compensation and agrees to indemnify the City for any work performed prior to approval of insurance by the City. 6. INDEMNIFICATION Consultant agrees to and shall indemnify and hold harmless the City, its officers, agents, employees, consultants, special counsel, and representatives from liability: (I) for personal injury, damages, just compensation, restitution, judicial or equitable relief arising out of claims for personal injury, including health, and claims for property damage, which may arise from the direct or indirect operations of the Consultant or its contractors, subcontractors, agents, employees, or other persons acting on their behalf which relates to the services described in section 1 of this Agreement; and (2) from any claim that personal injury, damages, just compensation, restitution, judicial or equitable relief is due by reason of the terms of or effects arising from this Agreement. This indemnity and hold harmless agreement applies to aH claims for damages, just compensation, restitution, judicial or equitable relief suffered, or aHeged to have been suffered, by reason ofthe events referred to in this Section or by reason of the terms of, or effects, arising from this Agreement. The Consultant further agrees to indemnify, hold harmless, and pay all costs for the defense of the City, including fees and costs for special counsel to be selected by the City, regarding any action by a third party challenging the validity ofthis Agreement, or asserting that personal injury, damages, just compensation, restitution, judicial or equitable relief due to personal or property rights arises by reason of the terms of, or effects arising from this Agreement. City may make all reasonable decisions with respect to its representation in any legal proceeding. 7. CONFIDENTIALITY If Consultant receives from the City information which due to the nature of such information is reasonably understood to be confidential and/or proprietary, Consultant agrees that it shall not use or disclose such information except in the performance of this Agreement, and further agrees to exercise the same degree of care it uses to protect its own information of like importance, but in no event less than reasonable care. "Confidential Information" shall include all nonpublic information. Confidential information includes not only written 3 information, but also information transferred oraHy, visually, electronically, or by other means. Confidential information disclosed to either party by any subsidiary and/or agent of the other party is covered by this Agreement. The foregoing obligations of non-use and nondisclosure shall not apply to any information that (a) has been disclosed in publicly available sources; (b) is, through no fault of the Consultant disclosed in a publicly available source; (c) is in rightful possession of the Consultant without an obligation of confidentiality; (d) is required to be disclosed by operation oflaw; or (e) is independently developed by the Consultant without reference to information disclosed by the City. 8. CONFLICT OF INTEREST CLAUSE Consultant covenants that it presently has no interests and shall not have interests, direct or indirect, which would conflict in any marmer with performance of services specified under this Agreement. 9. NOTICE Any notice, tender, demand, delivery, or other communication pursuant to this Agreement shaH be in writing and shall be deemed to be properly given if delivered in person or mailed by first class or certified mail, postage prepaid, or sent by telefacsimile or other telegraphic communication in the marmer provided in this Section, to the foHowing persons: To City: Clerk of the City Council City of Santa Ana 20 Civic Center Plaza (M-30) P.O. Box 1988 Santa Ana, California 92702-1988 telefacsimile (714) 647-6956 With courtesy copies to: Executive Director Public Works Agency City of Santa Ana 20 Civic Center Plaza (M-21) P.O. Box 1988 Santa Ana, California 92702-1988 telefacsimile (714) 647-5622 and, City Attorney City of Santa Ana 20 Civic Center Plaza (M-29) P.O. Box 1988 Santa Ana, California 92702 telefacsimile (714) 647-6515 4 To Consultant: Future Touch Technology 17301 Edwards Road Cerritos, CA 90703 Office: 562-366-8766 Fax: 562-366-8887 Cell: 775-291-2711 Attn: Bruce Agnew A party may change its address by giving notice in writing to the other party. Thereafter, any notice, tender, demand, delivery, or other communication shall be addressed and transmitted to the new address. If sent by mail, any notice, tender, demand, delivery, or other communication shall be effective or deemed to have been given three (3) days after it has been deposited in the United States mail, duly registered or certified, with postage prepaid, and addressed as set forth above. If sent by telefacsimile, any notice, tender, demand, delivery, or other communication shall be effective or deemed to have been given twenty-four (24) hours after the time set forth on the transmission report issued by the transmitting facsimile machine, addressed as set forth above. For purposes of calculating these time frames, weekends, federal, state, County or City holidays shall be excluded. 10. EXCLUSIVITY AND AMENDMENT This Agreement represents the complete and exclusive statement between the City and Consultant, and supersedes any and all other agreements, oral or written, between the parties. In the event of a conflict between the terms of this Agreement and any attachments hereto, the terms of this Agreement shall prevail. This Agreement may not be modified except by written instrument signed by the City and by an authorized representative of Consultant. The parties agree that any terms or conditions of any purchase order or other instrument that are inconsistent with, or in addition to, the terms and conditions hereof, shall not bind or obligate Consultant nor the City. Each party to this Agreement acknowledges that no representations, inducements, promises or agreements, orally or otherwise, have been made by any party, or anyone acting on behalf of any party, which are not embodied herein. 11. ASSIGNMENT Inasmuch as this Agreement is intended to secure the specialized services of Consultant, Consultant may not assign, transfer, delegate, or subcontract any interest herein without the prior written consent of the City and any such assignment, transfer, delegation or subcontract without the City's prior written consent shall be considered null and void. Nothing in this Agreement shall be construed to limit the City's ability to have any of the services which aze the subject to this Agreement performed by City personnel or by other consultants retained by City. 12. TERMINATION This Agreement maybe terminated by the City upon thirty (30) days written notice of termination. In such event, Consultant shall be entitled to receive and the City shall pay Consultant compensation for all services performed by Consultant prior to receipt of such notice of termination, subject to the following conditions: a. As a condition of such payment, the Executive Director may require Consultant to deliver to the City all work product completed as of such date, and in such case such work product shall be the property of the City unless prohibited by law, and Consultant consents to the City's use thereof for such purposes as the City deems appropriate. b. Payment need not be made for work which fails to meet the standard of performance specified in the Recitals of this Agreement. 13. DISCRIMINATION Consultant shall not discriminate because of race, color, creed, religion, sex, marital status, sexual orientation, age, national origin, ancestry, or disability, as defined and prohibited by applicable law, in the recruitment, selection, training, utilization, promotion, termination or other employment related activities. Consultant affirms that it is an equal opportunity employer and shall comply with all applicable federal, state and local laws and regulations. 14. JURISDICTION -VENUE This Agreement and all questions relating to its validity, interpretation, performance, and enforcement shall be government and construed in accordance with the laws of the State of California. This Agreement has been executed and delivered in the State of California and the validity, interpretation, performance, and enforcement of any of the clauses of this Agreement shall be determined and governed by the laws of the State of California. Both parties further agree that Orange County, California, shall be the venue for any action or proceeding that may be brought or arise out of, in connection with or by reason of this Agreement. 15. PROFESSIONAL LICENSES Consultant shall, throughout the term of this Agreement, maintain all necessary licenses, permits, approvals, waivers, and exemptions necessary for the provision of the services hereunder and required by the laws and regulations of the United States, the State of California, the City of Santa Ana and all other governmental agencies. Consultant shall notify the City immediately and in writing of her inability to obtain or maintain such permits, licenses, approvals, waivers, and exemptions. Said inability shall be cause for termination of this Agreement. 16. MISCELLANEOUS PROVISIONS a. Each undersigned represents and warrants that its signature hereinbelow has the power, authority and right to bind their respective parties to each of the terms of this Agreement, and shall indemnify City fully, including reasonable costs and attorney's fees, for any injuries or damages to City in the event that such authority or power is not, in fact, held by the signatory or is withdrawn. b. All Exhibits referenced herein and attached hereto shall be incorporated as if fully set forth in the body of this Agreement. IN WITNESS WHEREOF, the parties hereto have executed this Agreement the date and year first above written. ATTEST: ~_ PATRICIA E. HEALY Clerk of the Councsl CITY OF SANTA ANA: DAVID N. RE City Manager APPROVED AS TO FORM: JOSEPH W.FLETCHER City Attorney C ~, _ _ / Lisa E. Storck Assistant City Attorney RECOMMENDED FOR APPROVAL: ut~ e Director Works Agency of Santa Ana CONSULTANT Future ch Technolog Bruc grew, Preside Employer ID # FJ(HIBIT A Order Form and Purchase Agreement Futur2io~och FutureTouch Technology 17301 Edwards Road Cerritos, CA 90703 Bryce Agnew 775-291-2711 cell 562-366-8766 main 562-366-8887 fax Customer Zdenek Kekula Info: City of Santa Ana field service open quote. Contact: City of Santa Ana ZKek u la @ ci.santa-a n a. ca. us Sales Rep: Bryce Agnew Date: March 27, 2007 Rev #:0 ba new futuretouchtech.corn Note: Pricin is valid for 30 da s. Kiosk Enclosures `: _'.. ~~ - , ' :.„ T. ':~: Q - =- Price - T"otaL. SoftwareSet U En dish Lan wage Onl -Other tan a Q'sAvaHable ~ _~ , ~y _~x.. ,..y. . .: Kiosk Hardware O lions Available:: "~ ~ ' ` ,.. - ~ ' - _ : ,,.-:. .. ,. .....1 _. Services - ,. . ~. q .. ;Price ,. Project Management Included $125 Project Oversight and Coordination per hour Customer Communications Reviews and Testing Deployment Management Startup Assistance Documentation System Integration 0 $500 Load and Confgure operating system on CPU and load updates and patches Per System Install device drivers and test with hardware peripherals Install vims protection (if provided by FutureTouch) Install and configure software application • Configure network settings as appropriate Print and apply identification label to CPU Test and burn-in Installation, Onsite Kiosks 0 $1,000 Setup system at designated location per kiosk Confgure network settings and confirm network operation Confirm hardware operation Confirm software operation Remove packing materials Does not include travel expenses Client to perform facilit construction requirements riot to installation Training, Online 0 $200 Online session via Internet and telephone, per Software Application Per • Additional charges will apply to configure client's server if Enterprise License is purchased. Software A lication Ex enses '. ~ . ~ -.° .. . --; ll Price Travel Exense Estimate (if incurred will be pre aid and billed) 0 $0 Shipping 0 0 FOB FutureTouch Technolo Annual Su` ort Services a ab[elannuall [. Q Price Presenter Server Subscription, per system 0 $180/yr. Access to online tools for remote) mana in Presenter Pla er corn uters per kiosk Guardian Heartbeat and Use Reporting Subscription, per system 0 $180lyr. Access to online viewin of kiosk status u or down) and use /hit re orts if a livable per kiosk Network Monitoring by FutureTouch, per system 0 $240 FutureTouch staff will monitor Guardian Heartbeat, or other monitoring solution, and take per kiosk corrective action er the res onse escalation Ian. Software Help Desk Technical Support Plan 0 $200 FutureTouch will provide telephone and email support to customer. Support includes per kiosk receiving support requests, collecting information, and troubleshooting as indicated. Issues that cannot be resolved remotely will be escalated to system repair per the applicable re air ro ram onsite and/or hardware de of re air . Su ort will continue throw h re air. Hardware Depot Return Repair Service, per system 1 $3300 $3300 FutureTouch will replace or repair equipment returned by customer. FutureTouch will also reload, Confgure, and test software on the hard drive. Replace or repair is subject to on final ui ment manufacturer waran . Pdcin is lus re air and shi in ex enses. ittsoa Page 1 r Initials: ~(~Ivi a ~ Order Form and Purchase Agreement FUf ArETou~h FutureTouch Technology 17301 Edwards Road Cerritos, CA 90703 Bryce Agnew 775-291-2711 cell 562-366-8766 main 562-366-8887 fax Onsite Preventive Maintenance t $3300 $330D • Technician will visit the system on scheduled basis and perform physical inspection, verify operation, calibrate touch monitor, perform preventive maintenance on CPU hard drive, refill printer with paper, and clean exterior surfaces. Services provided 8 to 5 Monday through Friday. Pricing is plus consumables such as paper. Drive times in excess of 1 hour ma incur an additional drive time char e. Onsite Break-Fix Incident Response 1 $3300 $3300 Technician will respond to dispatch for onsite troubleshooting. Failed equipment that cannot be field repaired will be processed for repair under the FutureTouch Depot Repair program or other repair option selected by Customer. Coverage includes up to 5 incidents per year per system. Services provided 8 to 5 Monday through Friday. Pricing is plus ex enses. Drive times in excess of 1 hour ma incur an additional drive time char e. Sub TotaG' - - $9900.00 gales Tatt. 635% KA licable = ` Gland TOtaf . ~ __ $9900.00 Payment and Protect Terms Invoices will be submitted according to the following billing schedule. Invoices are due upon receipt. Amount Due when service is needed: ($hourly amount) 100% If incurred, costs far shipping, travel, and other authorized expenses will be prepaid and billed upon occurrence per FutureTouch project cost billing policies unless the expense is explicitly included in the project pricing shown above. Recurring charges (charges for ongoing services such as support) will be billed in advance: ^ Quarterly ®Annually Schedule Nominal kiosk cabinet production time without custom modifications is 8 to 10 weeks after receiving deposit, followed by ground transportation for delivery. Customer must notify FutureTouch of any time-critical schedule requirements. ttlsoa Page 2 Initials: drder Form and Purchase Agreement FutureTouch Technology 17301 Edwards Road Cerritos, CA 90703 FutUreiouch o Norix.. Bryce Agnew 775-291-2711 cell 562-366-8766 main 562-366-8887 fax Standard Terms 1. Pmrtvse to Pay: Customer agrees to pay FutureTouch far all purchases and charges subject to Uis Agreement according fo FutureTouch payment terms. H payment is not received when tlue, a late charge will be assesse0 on the tlay after the due dale and continuing each tlay aHer until the amounts tlue are paid in full. The late charge will he the lesser of (a) maximum artwunt perrri[tetl by law or (b) 1.75% per month of the balance tlue. Fu1preT000h reserves a purchase rtaney security interest in all pmtlucts purchasetl to secure payment. Customer agrees fo pay FutureTouch casts for colleNOn, indutling reasonable attorney's fees antl expenses. FutureTouch has Ue right la exercise all rights and remetlies accorded to us by law to collect payment of artaunls due including retaining antl/or repossessing all goods purchasetl on this Agreement antl rlherwise foreclose and enforce our Security Interest. 2. Payment Schedules: Payment schetlules are subject to Customer credit approval. Items will be billed as spedfed in the Payment Schedule. Pricing does not include any sales tax, use Ux, or any other such fees antl charges unless spedfically statetl. Customer agrees to pay any such gpvemmenl-Imposed fees, regartlless of when the fees are imposetl. Project sUrt retainer is due prior to protect start antl is nonaefundable. 3. Assignment of Payments: FutureTouch reserves the option to assign project payments to a (financing entity. Such assignment is for purposes of financing onty and does not indutle assignment of work. Customer agrees to cooperate with the financing entity in a timely manner by signing assignment paperwork antl other items Uat rrey be needed to wmplete the project financing. Customer agrees to cortply wiU payment requirements of the fnandal inslltution. 4. Compliance Exclusions: Pricing tloes not include compliance wiU regulations or slantlartls imposetl by govemmenl agendes or standards organizations except Uose specifplly idenfifletl by FutureTouch. No other compliance is representetl ar implietl. Intlividual components may comply with relevant requirements as tlelertninetl and conductetl by the manufacNrer of the component. Compliance with regulations, incNding but not limited to FCC and UL, as may be tlesiretl or required by Customer will be pertgrmetl al extra cost. 5. Customer Acceptance Obligation: Customer shall have Ue right to monitor the perforrrence of services, antl within 30 business days after tlelivery, Customer must give notice to FutureTouch of any claim of defcienoes, antl Customer must specify the basis of the claim in tlelail. The failure of Customer to cortply wiU Uese contlilions shall conslfitute irrevocable acceptance of the services by Customer. 6. Return Policy: All ortlers placed are foal. 7. Jurisdiction: Iha Uniform Commercial Cotle as enactetl by the Stale of California shall govern This Agreement, antl all rights antl obligations of the parties. 8. Termination Rights: FutureTouch may lerrtinate Uis Agreement in the even) of any failure on the part of the Customer to pay fees tlue FutureTOUrh. In Ue event of lerrtination, all fees tlue untler this Agreement shall become tlue and payable immetliately antl without notice or tlerrend by FutureTouch and all obligations of FutureTouch under this Agreement shall immetliately entl. if the Customer terminates this agreement, FutureTouch will be allowetl to collect reasonable prgec[ doseout costs. 9. Waranly DisGaimec FutureTouch tlistlaims all implied warranties of me¢hanlabillty or fitness far a particular purpose antl all other warranties o(any nature except those expressly statetl herein. 10. Limited Liability: With regartl to the services performed by FutureTouch pursuant to the terms of the Agreement, FutureTouch shalt not be liable to Customer, or anyone who may daim any right tlue to his or her relationship with Customer, for any acts or omissions in the performance of saitl services on the part of FutureTouch or on the part of the agents or employees of FuWreTOUCh, except with said acts or omissions of FutureTouch are due to willful misconduct. Customer shall holtl the Company free and harmless from any obligations, costs, claims, jutlgrrenfs, attorneys fees, antl attachments arising frem or growing out of Ue services renderetl to the Customer pursuant to the terms of this Agreement w in any way connectetl with the rendering of said services, except when same shall arise due to the willful misconduct as tleterrtunetl through the Dispute ResoNbon Procedure. Any liability imposed on FutureTouch is strictly limited to the amount paid by the Customer for Ue work performetl. FutureTouch shall not be liable for any incidental or consequential tlamages. 11. Partitioning: If any provision of this Agreement is fountl invalid or unenforceable under judidal decree or tlecision, the remaintler shall remain valid antl enforceable accoNing fo its terms. Wilhpul limiting the previous, it is expressly untlerslood and agreetl that each and every provision of Uis Agreement that provitles far a limitation of liability, tlisdaimer of warranties, or exclusion of tlamages is intendetl by the parties to be seversble and indepentlent of any other provision antl to be enforcetl as such. Further, it is expressly understootl antl agreetl that if any remedy under Ihrs agreement is determinetl to have failed pf its essential purpose; all other limilabons rf liability antl exclusion of tlamages set forth in this section shall rerrein in full force antl eHecl. Further, shoultl one or rtrore of the provisions of this Agreement be adjudged invalid by a court of competent juristlic(ion, such determination shall have no eRecl whatsoever an the amount oramounts of compensation to be paid Ip the Company pursuant to the lerrts of this Agreement. 12. Attorney Fees: I( either party is required to retain the services of an attorney to enforce or otherwise litigate or tle(end any matter or claim arising out of or in connection with this Agreement, then Ue prevailing party shall be enlfibetl to recover from the other party, in addition ro any other rebel awarded or grantetl. its reasonable costs and expenses pndutling attorneys'fees). 13. Notices: All notices, demands or consents requiretl or permitletl under this Agreement shall be in writing and shall be consitlered given: (i) when delivered personally; or (ii) when deliveretl by U.S. Mail with atlenowletlgment of receipt or by any commercial courier proNtling equivalent adenowletlgment of receipt. 14. Publicity: Customer grents permission to FpfpreTDUCh to publicize Ue relationship creafetl herein in apprapdale professional methods including a press release and recognition in marketing rtalerials and the FutureTouch websile. 75. Term: This Agreement terminates upon completion of work activities quotetl above antl receipt of foal payment by Customer. 16. Respective Responsibilities: FutureTouch (Company) personnel or contract personnel will pertorm all labor services as deemed appropriate by FutureTouch. FutureTouch is solely responsible far seledicn and assignment of personnel to a prged. 17. Independent Conlredor: Nothing in [his Agreement will be tleemetl to plate the parties in the relationship of employer! ertployee, partners, orjpint ventures. Neither party shall have any right to obligate or bind the other in any manner. Each party agrees and ad<nowletlges that it shall not holtl itself out as an aulhorizetl agent vdth the power to bintl the other party in any rtnner. Each party will be responsible far any withholding loxes, payroll taxes, tlisabilily insurance payments, unemployment taxes, and other sirrilar faxes or charges with respect to its adrvilies in relation to perfprrrence of its obligations untler Uis agreement. 18. No Partnership: A partnership relationship is not created by This Agreement. 19. Proprietary Information: Each party acknowletlges That it may be furnished wiU or may otherwise receive or have access to iniormalion or material wh¢h relates Im past, present or future products, software, research tlevelopmenl, inventions, pmresses, techniques, designs or technical infpmtation and data, rtarke[ing plans, and so an, (the "Proprietary Information"). Each party agrees to preserve and protect Ue conftlentiality of the Proprietary Informalimn, whether tlisdosetl to Ue other party before This Agreement is signed or aftenvartl. In atltlition, a party shall no[ disclose or tlissemnale the Proprietary Information for its awn beneft or for the benefit of any thirtl party. The previously stated obligations tlo not apply to any infortna4on which (1) is publicly known; (2) is given [o a party by someone else who is not obligated to maintain confidentiality; w 13) a party had alreatly developetl prior to the day this Agreement is signed, as evitlencetl by tlocuments. Neither party shall take or cause to be taken any physical forrtS Of Proprietary Information (nor make copies of same)wrthout the other party's written percussion. Within three (3) days after the termination of this Agreement (or any other Ume al the other partys requesp, a party shall return to the other party all copies of Proprietary Information in tangible form. Despite any other provisions of this Agreement, the requirements of this Section shall survive termination of this Agreement. 20. Entire Agreemen The parties acknowledge That [his greemenf expresses their entire underst ding antl Agreement, antl That (here are n warranties, representations, covenants or untlerslandings de by efiNer pally to Ue other a pl such as ate expressly set forth in t Agreement. The parties further acknowl ge that This Agreement supersedes. lermnates and plhe se renders null antl voitl any and a rior Agreements, whether written or om enleretl into between the Customer and Fu eTOUCh with respect to the matters expressly set forth int Agreement. Terms for Hardware, Cabinets, and Third Party Software 1. Cabinets antl cabinet components manufactured of supplietl by FutureTouch are wartanted from manufacturing defects fora pedatl of 90 tlays commencing on the date of shipment. During the warranty period, Customer is responsible far returning defective iterts to FutureTouch al Customer expense. FutureTouch will repair or replace, al FutureTouch option, retumetl ilerts within 30 tlays of receipt a[ FutureTouch expense including return shipping. 2. Computer components and peripheral devices supplietl by FutureTOUrh are provided vnlh the pnq~nal equipment manufacturer's waranty passetl Through to Customer- 111soa Page 3 Initials: Order Form and Purchase Agreement FutureTouch Technology 17301 Edwards Road Cerritos, CA 90703 I~FUturPTourh 'r° "°""v Bryce Agnew 775-291-2711 cell 562-366-8766 main 562-366-8887 fax 3. Dudng the first 90 days from the tla[e the item is originally shippetl to Customer, FutureTouch provitles Hardware Depot Repair Wartanty service in which FutureTouch will manage the repair M failed tlerns wtlh the rtenufacturer. Customer is responsible for removing items fmm mbinel (if applicable) and reWming item to FutureTouch at Customer expense. FutureTouch unit pay for return grountl shipping. FutureTouch oRers an optional extension of the Hardware Depot Repair Wartanty that pmvitles the repair services as long as the equipment is covered. If Customer tloes not purchase [he optional Hardware Depot Repair Wartanty, then 90 days after the item is originally shipped by FutureTouch to Customer then FuNreTOUCh will provitle services at the then curtenl Pay-per-Use rele. 4. FutureTouch warranties are vcitled by misuse, abuse, vantlalism, dartage, unsuitable environment. unsuitable power, orimpmper maintenance. 5. FutureTouch tloes not assume any responsibility or liability for Customer-providetl items unless these items are covered by the optional Hardware Depot Repav Warranty. FutureTouch troubleshooting involving Customer-supPlietl dens is an additional consulting service that may incur atltlilional charges. 6. Shipping and Installation: Cabinets and equipment are sold FOB point of destination for shipping by FuWreTouch and FOB point of origin for customer shipping. Customer upon receipt must immediately inspect all tlelivered items. Customer is responsible for immediately reporting any damage to the shipper prior to the shipper's tleparture from Customer faality. FutureTouch will prepare the shipping insuranre daim if FutureTouch was contracted by Customer to rtanage shipping. 7. If tlelivery cannot ocmr within 30 tlays of the unit being reatly to ship, Ihen the Payment Schetlule is modilietl so that the balance is then immediately due. e. Storage: AStoragefee of SAS per month per unit will be assessetl starling 30 days aRer the unit is ready to ship per FutureTouch nofifrelion. 9. Unit pricing is based on the quantity specifietl as asingle order. Partial or subtlivitletl orders will be pdcetl at rates applicable to the size of the actual order. 10. Third pally software ownetl by gNer companies is dislribuletl subject to the licensing restrictions imposetl by the software owner and is tlistributetl as-is without any wananty or representation from FutureTouch. Support is provided by he sofNrare avmer. Additional Terms for FutureTouch Software and Application Development Projects 1. Ownership of Software: FutureTouch owns all software except commerdal Ihirtl party software ownetl by other companies. FutureTouch grants Customer a bcense to use TouchVSion sollware on computers provided or approvetl by FutureTouch. Any other use ar distribution of FutureTouch software is prohibited. Thirtl party soRware ownetl by outer companies Is tlistributetl subject tp the licensing restndians imposed by the software owner. 2. Soilware Wartanty: Sofhvare is warranletl from Substantial Defects. Substantial DefeMS are major problems with the software that prevent rnlirel functions from fully working, and are untler complete FutureTouch control. Substantial Defe<IS exdutle Minor Defects such as soMmre bugs That are a minor nuisance or have spordtlic, unpretlidable operational impacts. FutureTouch will mnect Substantial Defe<IS in a timely manner upon Customer idenlifimtion of the problem and FutureTouch duplication or confrmalion of the problem. The time required to coned a detect tlepends on the severity antl corrplexily of the defect. FutureTouch will make reasonable efforts to correM Substantial Defects quickly. Minor Defects will be corrected as part of a slandartl rreinlenance release aawork-around will be provided. Wartanty penod is 6 rtwnlhs or as long as FutureTouch is refainetl for software maintenance. The wananly exdudes changes in computers, technology, and comrtunications that Trey occur over the course of lime That cause a problem with a system that was previously functional. The FulureTauch ProduM License is inmrporaletl by reference. 3. ResldMions of Use: FulureTOUCh prohibits from interactive applications developed by FutureTouch, or application hosting by FutureTouch, any pornographic materials, libelous materials, copyright infringement, trademark infringement, and any other materials That are illegal or offensive in the sole view of FutureTouch. Any such materials brought to FulureTOUCh's attention will be removed. FutureTouch tloes not perform screening or censoring, but will respond [o issues brought to FutureTouch attention. 4. Responsibilities antl Rights of Customer Customer represents and warrants that all Customer-provided materials are fully ownetl by Customer, or that Cuslamer has secured required permissions to use the neterials without royalties or other obligations on FutureTouch. Customer represents antl warrants Nal work cmtmctetl of FutureTouch does not infringe on intellectual property awned by another person. Customer agrees to indemnify and holtl harmless FutureTouch from any claim or liability ansng from FWUreTcuch use M Customer-provitletl materials or the performance of mntraded work. in the event of any tlaim or asserted liability against FutureTouch, FutureTouch unit provide Cuslamer with prompt written notice. Upon notice. Customer agrees to defend and hold harmless FutureTouch fmm any loss or liability. In the event Customer fails to indemnify FutureTouch, FuNreTOUCh has the right la tle/end or settle any claim on (heir own behalf antl be fully reimbursed by Customertor all costs antl expenses of such tlefense or settlement. 5. Customer Content: Customer owns informational content protlucetl by FutureTouch for Cuslamer using materials provided by Customer antl in which FulureTauch is fully compensatetl by Customer far services. No ownership rights for content ownetl by lhiM parties or FutureTouch are providetl to Customer. Customer gams FuwreTOUCh non- exclusive, unresMded, and royalty-free rights to use content tlevelopetl by FutureTouch For Customer. 6. Attribution Mark: FutureTouch has the right to tlisplay attribution to FutureTouch as a discrete mark on the rrein menu of the mtemdive applirebon or in some other appropriate manner. FutureTouch will make the rrerka suitable, attraMwe element in the application so that it does not conFli<I with the application. Agreement Acceptance Company and Customer agree that this Agreement will be considered signed when the signature of a party is delivered by fax. Signatures transmitted by fax shall have the same force and effect as original signatures. By signing below, Customer agrees to this purchase agreement. Signature: Name: Title: Company Name: Date: t t tsoa Page 4 Initia Is: • r- Rpr 11 07 06:19a FutureTouch TechnoloEy PROOF OF INSURANCE IMerinsurence Exchange of the Automobile Club Nama011arured Pofiey Number: G 4801981 AGNEW, MICNIKO AND C BRYCE 'gx 0 0 EHecM1ve DNe: 0328/07 Fxpkalfbn Date: 03/28108 .. Tds n00cf prwldes M Neal N+c minimum em0uni0 Of aadM inrurrKe reeubed W Ow CA VEH CODE SECTNxJ iBD56 kr the seecfied 15623668867 VEMCLES ON POLICY YEM t4N(E VEN IA. • 2006 BENL IJGCaetiEN4M22976 zaoz o~BS +GNlrr+~szrezezaaa DRNERS ONPOL~Y AGNEW, r4[.NINO AGNElM. C BRYCE vehkka and named insureds aM mvy MOVItle cowrv0e tOf mMr ..'1.1I pera0ns aM dnw wnkNS as prodded by fhe inwrenrb poFCV. T~ FO e D,~D AS ~ppR ~P E. S~~R~oC~e`J y~8 Gity P ~S~stant p.2 Apr 23 07 09:45e FutureTouch Technology 15623Gfi8887 p.t WORKERS' COMPENSATION DECLARATION z (~6H`t 1 _~l ~~1 i~ w1 ' hereby atfirro under penalty of perjury. the a„uTk T~ following declazation : /n /~ y I certify on behalf of ~~ 7~+f t' I ~e{f ~~~(~lthat~dining tip term of my (o~ iz ' it~me) contract with the C )~ ~ ~rn~ JQ~q ,City of Santa Ana, I will not employ any person in any manner so as to become subject to the workers' compensation laws of Califamia, and agree that if I should become subject to the workers' compensation provisions of Sectioa 3700 ofthe Labor Code,1 shall forthwith comply with those provisions. DATE: ~ T ~ _ o ~°~ ao~9 ~~ G'~ R GASP ~ G yOP~~rey ~Ststaot By: Nam Title Telephone: ~~~~ ~fo' ~ /X3~ WARNING: FAILURE TO SECURE WORKERS' COMPENSATION COV ERAGE IS UNLAWFUL, AND SHALL SUBJECT AN EMPLOYER TO CRIMINAL PENALTIES AND CIV 1L FINES UP TO ONE HUNDRED THOUSAND DOLLARS (S] 00,000). IN ADDITION TO THE COST OF COMPENSATION, DAMAGES AS PROVIDED FOR IN SECTION 3706 OF THE LABOR CODE, INTEREST, AND ATTORNEY'S FEES.