HomeMy WebLinkAbout25F - COMPUTER SOFTWARE MAINTENANCE REQUEST FOR
COUNCIL ACTION f~-,
CITY COUNCIL MEETING DATE: CLERK OF COUNCIL USE ONLY:
MARCH 1, 2010
TITLE: APPROVED
? As Recommended
AGREEMENT WITH INTERGRAPH ? As Amended
? Ordinance on 1Si Reading
FOR COMPUTER SOFTWARE ? Ordinance on 2nd Reading
MAINTENANCE ? Implementing Resolution
? Set Public Hearing For
CONTINUED TO
~..~-~i FILE NUMBER
G~
CITY MANAGER
RECOMMENDED ACTION
Authorize the City Manager and Clerk of the Council to execute the attached agreement with
Intergraph in an amount not to exceed $45,000 per year, for atwo-year term, subject to
nonsubstantive changes approved by the City Manager and City Attorney for computer software
maintenance for the Public Works Agency.
DISCUSSION
The Public Works Agency uses Intergraph software for design of the City's infrastructure and for
the Geographic Information System. The City has an agreement with Intergraph to provide
software maintenance and updates. The current agreement with Intergraph will expire in May
2010. Anew agreement for atwo-year year term is proposed in an amount not to exceed
$45,000 each year.
FISCAL IMPACT
Funds for the agreement are budgeted in current budget in the Public Works Administration activity
for maintenance and repair to machinery and equipment (accounting unit 10117601-62300).
Funds for the second year of the agreement will be included and approved as part of the 2010-11
budget.
APPROVED AS TO FUNDS AND ACCOUNTS:
~j ~ A
Raul Godinez I Francisco Gutierrez
Executive Direct r Executive Director
Public Works Agency Finance & Management Services Agency
RGlfLC
Exhibit: 1. Agreement
25F-1
25F-2
SOFTWARE MAINTENANCE AGREEMENT
THIS AGREEMENT, made and entered into this 1 S` day of March, 2010 by and between
INTERGRAPH, CORPORATION, a Delawaze corporation (hereinafter "Vendor"), and the City of Santa
Ana, a charter city and municipal corporation organized and existing under the Constitution and laws of
the State of California (hereinafter "City").
RECITALS
A. The City has purchased certain software from Vendor and desires that Vendor maintain and
support that software.
B. Vendor represents that it is able and willing to provide softwaze maintenance services to the
City.
C. In undertaking the performance of this Agreement, Vendor represents that it is knowledgeable in
its field and that any services performed by Vendor under this Agreement will be performed in
compliance with such standards as may reasonably be expected from a company providing
similar maintenance services.
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
Vendor shall provide software and hardware maintenance services for the City's Public Works
Agency as set forth in "Security, Government & Infrastructure U.S. Maintenance Terms and Conditions,
attached hereto as Exhibit A and incorporated by reference. Said Terms and Conditions shall be modified
as follows:
Section 10.5, Interpretation, shall be deleted in its entirety and replaced with the following:
"10.5 JURISDICTION -VENUE
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."
Z. COMPENSATION
City agrees to pay, and Vendor 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
$45,000, annually, during the term of this Agreement.
3. TERM
This Agreement shall commence on the date first written above and terminate on April 30, 2011,
unless terminated earlier. The term of this Agreement may be extended for an additional one-year term
upon a writing executed by the Executive Director of Public Works and the City Attorney.
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4. INDEPENDENT CONTRACTOR
Vendor 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 shall 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 Vendor performs the services which are the
subject matter of this Agreement; however, the services to be provided by Vendor shall be provided in a
manner consistent with all applicable standards and regulations governing such services. Vendor 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, Vendor shall maintain and shall
require its subcontractors, if any, to obtain and maintain insurance as described below:
a. Due to the nature of services provided, Commercial General Liability Insurance is riot required
b. Worker's Compensation Insurance. h1 accordance with the provisions of Section 3300 of the
Labor Code, Vendor, if Vendor has any employees, is required to be insured against liability for worker's
compensation or to undertake self-insurance. Frior to commencing the performance of the work under
this Agreement, Vendor agrees to obtain and maintain any employer's liability insurance with limits not
less than $1,000,000 per accident.
6. CONFIDENTIALTI'Y
If Vendor receives from the City information which due to the nature of such information is
reasonably understood to be confidential and/or proprietary, Vendor 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 information, but also information transferred orally, visually,
electronically, or by other means. Information in documentary or other tangible form will be clearly and
conspicuously marked as "Confidential". Verbal disclosures shall be identified as confidential within
thirty (30) days of the initial disclosure. Confidential information disclosed to either party by any
subsidiary and/or agent ofthe 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 Vendor disclosed in a publicly available source; (c) is in
rightful possession of the Vendor without an obligation of confidentiality; (d) is required to be disclosed
by operation of law; or (e) is independently developed by the Vendor without reference to information
disclosed by the City.
7. NOTICE
Any notice, tender, demand, delivery, or other communication pursuant to this Agreement shall
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 manner
provided in this Section, to the following persons:
To City: Clerk of the City Council
City of Santa Ana
20 Civic Center Plaza (M-30)
P.O. Box 1988
Santa Ana, CA 92702-1988
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telefacsimile (714) 647-6956
With courtesy copies to:
Executive Director of Public Works
City of Santa Ana
20 Civic Center Plaza (M-21)
P.O. Box 1988
Santa Ana, California 92702
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
To Vendor: INTERGRAPH CORPORATION
Maintenance Contracts Manager
170 Graphics Drive
Madison, Alabama 35758
A party may change its address by giving notice in writing to the other party. "Ifter, any communication
shall be addressed and trms<nitted to the new address. ff sent by mail, 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,communication shall be effective ar deemed
to have been giventwenty-four (24) hours after the time set forth on the trancmiscion report issued by the transmitting
facsimile machine, addressed as set forth above. Far purposes of calculating these time flames, weekends, federal,
state, County or City holidays shall be excluded.
8. EXCLUSIVITY AND AMENDMENT
This Agreement represents the complete and exclusive statement between the City and Vendor,
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 Vendor. The parties agree that any terms or conditions of any purchase
order or other instrument that are inconsistent with the terms and conditions hereof, shall not bind or
obligate Vendor 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.
9. LICENSES & PERMITS
Vendor 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. Vendor shall notify the City immediately and in writing of its inability to obtain
or maintain such permits, licenses, approvals, waivers, and exemptions. Said inability shall be cause for
termination of this Agreement.
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10. 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 WI`T'NESS WHEREOF, the parties hereto have executed this SOFTWARE MAINTENANCE AGREEMENT
the date and year first above written.
CITY OF SANTA ANA
ATTEST:
Maria D. Huizaz DAVID N. REAM
Clerk of the Council City Manager
APPROVED AS TO FORM:
Joseph W. Fletcher
City Attorney
By:
Laura Sheedy
Assistant City Attorney
INTERGRAPH CORPORATION
RECOMMENDED FOR APPROVAL:
Raul Godinez (NAME)
Executive Director of the (Title)
Public Works Agency Tax ID #
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25F-8
Document Version SGi-US-032708
,J.~~FV'll~l-7
Security, Government & Infrastructure (SG&I)
'U.S. Maintenance Terms and Conditions
-for Software and Hardware
`The SG8~t U:S: Maintenance Terms and Conditions for Software and Hardware consists of this cover page,
the attached General Terms and Conditions, the Scope of Work (as indicated by the applicable Exhibits
marked below), and any Addenda thereto. This document and the Quote to which it is attached
comprise the .complete agreement. This Agreement replaces all prior oral or written communications
between the Parties regarding the terms and condi#ions of SG8,1 Maintenance Services.
7
By signing the maintenance Quote, the Parties agree to the terms of this Agreement. Once signed, i) the
Parties agree any reproduction of the Agreement made by reliable means (for example, photocopy or
#acsimile) is considered an original and 2} all Covered Products are subject to it.
Scope of Work
If checked below, additional Terms and Conditions specific to the following Scope of Work items are t
made a part of this Agreement:
Exhibits: A ® Commercial Off-The-Shelf ("COTS"} Software, except for DMC Software k
(mark as applicable) $ ? Z/I Imaging Hardware, except for DMC Hardware
C ? Digital Mapping Camera ("DMC") Systems Hardware and Software F
D ? Third Party Products
E ? i
6
5
S
Customer Services Administration
P.O. Box 6695, Hurusville, AL 35813
25F-9
i
GENERAL TERMS AND CONDITIONS
The following general terms and conditions apply to all maintenance Services provided by Intergraph,
except as otherwise modified in an applicable Exhibitor by subsequent Addendum signed by Intergraph
and the Customer, or unless Customer and Intergraph enter into a separate agreement that provides for
maintenance services. In case of conflict between any of the parts of the Terms and Conditions, the
order of precedence shall be.as follows: 1 }any Addenda executed by the Customer and Intergraph,
with the lotest Addendum taking precedence over any earlier Addenda in which a conflict may appear;
2} any applicable Exhibits, as pertains to the subject thereof; and 3} the general terms and conditions.
1 A DEFtNRIONS
i
1.1 "AgreemeM~" means the agreement between Customer and Intergraph that ~ created by Customer E
accepting the Quote which references and is subjec# to the Terms and Condrtions. The Customer-accepted Quote
and the Terms and Condtions make up fhe Agreement between Customer and Intergraph.
1.2 "Coverage Period" means the Agreement period of performance as designated in fhe Quotes}.
1.3 "Covered Products" means the hardware and/or software products fisted on the Quote for wh'~ch Services
are to be provided by Intergraph. Covered Products shall also include additional copies of a software product that
are akeady covered by the Agreement and that are purchased or otherw~e obtained by Customer during the
Coverage Period. Coved Products may include products of Securify, Government 8, Infrastructure, as well as Third
Party Products, as defined below.
f
1.4 "Customer" means the entity or person purchasing maintenance services.
1.5 "Designated Hardware" means hardware designated by Intergraph as elic,~'ble for cancellation with ninety
{90) days notice.
1.6 "DMC" means Digital Mapping Camera F
1.7 "Ir~ergraph" means the Security, Government & Infrastucture SSG&IJ d'n%+sion of Intergraph Corporation.
1.8 "Quote" means a quotation for Services submitted to Customer by Intergraph. A Quote may be the
quotation issued by the Customer Services Center, but may also be the maintenance quotation submitted fo
Customer along with a product quotation at time of purchase.
1.9 "Scope of Worts" means the speafic maintenance services contracted by Customer and to be performed. by
Intergraph, as despibed inapplicable Exhibits attached hereto.
1.10 "Servkes" means the maintenance services for Covered Products that are further described in the Scope of
Work.
1.11 "Terms and CondRtons" means these terms and conditions, indudin an Addenda and a i
g y pplicable Exhibits.
that together with the Quote accepted by Customer comprise the Agreement between Customer and Intergraph
for the ServicPS. ;
E
1.12 "Thl~d Party Products" means the hardware a software products of any division of Intergraph Corporation
.other than Security, Government ~ Infrastructure and/or of an entity other than lntergroph Corporation. ,
1.]3 "Upgrade(s)" means the subsequent releases of applicable software products covered under the
.Agreement.
2.0 AUTHORIZATION AND PERFORMANCE
2.i Ir~iating Services
By accepting the Quote issued by Intergraph and paying all d~ca-ges fisted in the Quote, Customer thereby author¢es
Intergraph to provide the Services far Covered Products during fhe Coverage Period specified on the Quote, and
25F-10
thereby agrees to these Terms and Conditions. Such Services wiN be provided in accordance with the Scope of
'Work. The Agreement shall be considered as beginning. on the frst day of the month that the Agreement becomes
effective, and thus the Covered Period shag be forwhole months only.
2.2 Renewing Services
Appro~amately ninety (90) days prior to the Agreement expiration date, Intergraph wdl submit to the Customer a
renewal Quote that includes pricing for the Services during the subsequent Coverage Period. By accepting the
renewal Quote and agreeing to pay or paying aq charges listed in the renewal Quote, Customer thereby author¢es
Intergraph fo provide the Services for Covered Products during the designated Coverage Period, and thereby
agrees to the then current Terms and Conditions referenced in the renewal Quote. Intergraph reserves the right to
increase maintenance prices at any time at its sole d'iscxetion, which shall, if applicable, be reflected in the renewa!
Quote and shalt take effect for the renewal Coverage Period.
3.0 TERMINATION OF SERVICES
Coverage may only be terminated by either party at the end of a Coverage Period. The party desiring to terminate
Services must provide to the other party wrrften notification at least th'r1y (30) days.prior to the end of the then current
Coverage Period of its intent fo terminate Services. However, should Customer not remit payment for any renewal
Quote prior to the end of the then current Coverage Period, Services shag terminate at the end of that Coverage
Period and Services shall be deemed by In#ergraph to have lapsed. j .
This Agreement may only be terminated prior to its expiration in the following ways:
(a) Anew Agreement between Customer and Intergraph is signed into effect for simaar service.
(b) If either party petifions for reorganization under the Banlavpfcy Act or is adjudicated as bantwpt, or a receiver ~
appanted for either party's business, or the Customer fails to pay Inferr,~aph any amount when due hereunder.
4.0 CHANGES, DElEIIONS, AND ADDITIONS f
4.1 Changes of Coverage E
6
If Customer desires to change coverage for the renewal Coverage Period, Customer should notify Intergraph and
obtain a revised renewal Quote that reflects Customer`s wishes, provided such changes are not in violation of the
Terms and Conditions.
4.2 Deletbns from Agreement
4.2. T Designated Hardware
Either party may remove Designated Hardware from the Agreement by providing ninety (90) days
advance written notice to the other party, with the deletion to take effect at the end of the month in
which falls the ninetieth day from the date notice was received by the other party, or at the end of the
Coverage Period, whichever comes first. In the event either party withdraws maintenance for an item of
Designated Hardware, the charges pertaining to such item of Designated Hardware shalt be prorated for
the remaining term of this Agreement, and if applicable, to the extent charges were prepaid, refunded to
.Customer in whole months only.
4.2.2 Covered Products
t
Either party may provide written notice to the other party at least thirty (30) days prior to the end of any
Coverage Period of its intent to remove any individual Covered Products from the Agreement for the
renewal period. Neither party may remove Covered Products other than Designated Hardware except ~
upon Agreement renewal
Customer may not remove from Coverage individual software licenses of a software product for which
Customer has multiple copies under maintenance at one site or for software licenses that are being used
interdependently at a single site.
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_ .
4.3 Additions to Agreement
In the event Customer purchases additional Intergraph hardware or software during the term of this
Agreement and does not also purchase maintenance for those items at the time of purchase, and if
Customer purchased the additional items from Intergraph, Intergraph wilE notify the Customer by .
submitting in writing an add-on Quote that reflects the additional items, effective date(s) of service, and
charges for those items pursuant fo these Terms and Conditions.
In the event Customer should obtain additional Intergraph software license(s) from an authorized reseller
or by any other manner, Customer agrees to notify Intergraph about the newly acquired software
licenses(s}. In response, Intergraph will provide the Customer with an add-0n Quote reflecting the
effective date of service and charges for the additional soffware license(s).
Customer shall purchase maintenance coverage on all additions of software licenses to a site obtained
via software license transfer. Any such software license transfers shall be in accordance with the current
Intergraph Software Transfer Policy and the End-User License Agreement and Limited Product Warranty for
Intergraph Corporation Software Product{s) or other applicable Software License Agreement delivered
with the software product.
j
5.0 REQUIRED CaVERAGE
5.1 MuHiple or interdependent Licenses f
4
Maintenance may. not be declined for individual licenses of a software product for which Customer has
multiple copies under maintenance at one site or for software licenses that are being used
.interdependently at asingle site. f
5.2 Prerequisite Licenses
.All prerequisite Intergraph software licenses that are necessary to operate the software for which
Customer desires Services under the Agreement must also be included as Covered Products and listed on
the Quote.
6.0 CHARGES ~ ~
.:Maintenance services are not eligible for discouNs.
6.1 Payment
Charges for Services are due and payable armuary In advance. For Customers des~ing to pay quarterly in advance
instead of annually in advance, the Customer must request a revised Quote which shall include a convenience fee
uplift of fifteen percent {15~) of the total annual charges, which convenience fee Customer agrees to pay. The.
:convenience fee shall be prorated and charged to the four quarterly invoices.
All charges are due net th'riy (30) days from the date of invoice, unless Customer accepts the Quote less than thirty
(3Q) days before the first day of the Coverage Period in which case the charges for the invoice or initial invoice, as ~
appricable, are due prior to the beginning of the Coverage Period. In-the event Customer accepts a Quote after the
Coverage Period has already begun, the charges for the invoice or initial invoice, as applicable, shall be due and
payable in full upon receipt of the invoice. Charges for products added during a Coverage Period to an Agreement
shall be prorated to the remaining months of the Coverage Period, in while month increments only, and such
charges shall be due and payable in full upon receipt of invoice.
6.2 Past Due Accounts
INTERGRAPH RESERVi?S THE RIGHT TO REFUSE SERVICE TO ANY CUSTQMER WHOSi ACCOUNT IS PAST DUE. At
the discretion of Intergraph, Customers who have not paid any charges when due may not be rendered Services or
receive Upgrades unfil the charges are paid in full. Addrtionaty, Intergraph shat! charge and Customer agrees to pay
. interest at the rate of two percent (2%) per month or fhe ma~amum amount allowed by law, whichever is less, for all
25F-12
amounts not received when due. The start of the Coverage Period shall not be postponed due to delayed payment
of any charges.
6.3 Reinstatement of Software Maintenance Coverage
Software reinstatement fees wil! apply if there is a lapse in software maintenance Services. Intergraph will
provide a Quote for reinstatement of maintenance upon request.
6.4 Reinstatement of Hardware Maintenance Coverage
Intergraph may charge a recertification fee for reinstating coverage for hardware where coverage has '
lapsed. Recertification of hardware will require inspection and possible refurbishment of the hardware at
Customer's expense prior to being eligible for addition to an Intergraph maintenance contract. -
7.0 CUSTOMER RESPONSIBILITIES
During the Coverage Period of the Agreement, Customer shall commit to the fdlowing:
(a) Customer is respon~ble for backing up all systems software, applications, and user data flies prior to 1
commencement of any repair services. '
(b} Customer warrants that for all software licenses supported under the Agreement, all rke software licenses in the
possession of the Customer and located at the s'rfe referenced on the Quote are I~ted on the Quote. If alt like
software licenses are not I'~sted on the Quote, Customer agrees to notify Intergraph so that Intergraph may issue a
revved Quote to the Customer. Customer also warrants that all prerequ~ite Intergraph software licenses
necessary to operate the software supported under the Agreement are fisted on the Quote.
(c) Customer warrants that Services provided herein shall be utT¢ed only for the quantity of licenses I~ted on the
Quote. I
E
8.0 SERVICES WARRANTIES AND LIMITATION OF LIABILITY
Product warranties are as provided in the Security, Government 8, Infrastructure Terms and Conditions of Sale, the
:End-User License Agreement and Limited Product Warranty far Intergraph Corporation Software Product(s) and/or i
other Software license Agreement provided with the Covered Products, and/or in other contractual documents, as =
applicable. The following warranties apply to the Services described in these Terms and Conditions,
8.1 warranties
INTERGRAPH WARRANTS FOR A PERIOD OF THIRTY (30) DAYS FROM THE DATE OF SERVICE THAT, UNDER NORMAL USE,
:MATERIALS AND SPARES PROVIDED PURSUANT TO THIS AGREEMENT FOR SECURITY, GOVERNMENT & INFRASTRUCTURE
HARDWARE SHALL BE FREE FROM DEFECT IN MATERIAL AND WORKMANSHIP. ANY SPARES OR MATERIALS PROVIDED
PURSUANT TO TH1S AGREEMENT FOR SERVICE OF THIRD PARTY HARDWARE ITEMS SHAL4 ONLY BE WARRANTED TO THE
EXTENT THE SPARES OR MATERIALS ARE WARRANTED BY THE THIRD PARTY HARDWARE MANUFACTURER.
f
INTERGRAPH DOES NOT WARRANT THAT THE SOFTWARE UPDATES OR MAINTENANCE SERVICES PROVIDED HEREUNDER
:WILL MEET CUSTOMER'S REQUIREMENTS, AND UNDER NO CIRCUMSTANCES DOES INTERGRAPH WARRANT THAT
SOFTWARE WILL OPERATE UNINTERRUPTED OR ERROR FREE. ANY ADDITIONAL WARRANTY OF THIRD PARTY SOFTWARE
ITEMS SHALL ONLY BE TO THE EXTENT THE ITEMS ARE WARRANTED BY THE THIRD PARTY SOFTWARE MANUFACTURER. r
8.2 Disclaimers
THE FOREGOING WARRANTIES ARE VOID IF FAILURE OF A WARRANTED REM RESULTS DIRECTLY, OR !NDlRECTLY, FROM i
AN UNAUTHORQED MODIFICATION OF A WARRANTED ITEM; AN UNAUTHORQED ATTEMPT TO REPAIR A WARRANTED
ITEM; OR MISUSE OF A WARRANTED REM, INCLUDING WITHOUT LIMRATION, USE OF WARRANTED ITEM UNDER
ABNORMAL OPERATING CONDITIONS OR WITHOUT ROUTINELY MAINTAINING A WARRANTED REllh.
25F-13
THE FOREGOING WARRANTIES FOR MAINTENANCE SERVICES PROVIDED PURSUANT TO THIS AGREEMENT ARE IN LIEU OF
ALL OTHER WARRANTIES OF MAINTENANCE SERVICES, WHETHER EXPRESSED OR IMPLJED. INTERGRAPH DISCLAIMS ALL
OTHER WARRANTIES, WHETHER EXPRESSED OR IMPLIED, WITH REGARD TO MAINTENANCE SERVICES SUPPLIED
HEREUNDER, INCLUDING ALL IMPLIED WARRANTIES OF MERCHANTABILITY AND/OR FITNESS FOR A PARTICULAR
PURPOSE.
8.3 Limiitalion at LfabHily
INTERGRAPH SHALL NOT BE LIABLE FOR ANY INDIRECT, CONSEQUENTIAL INCIDENTAL SPECtA~., OR PUNITNE DAMAGES,
ARISING OUT OF, OR IN CONNECTION WITH THE FOREGOING WARRAMIES, OR THE PERFORMANCE OF THIS
AGREEMENT, INCLUDING BUT NOT LIMITED TO LOSS OF REVENUE OR PROFIT, OR LOSS OR CORRUPTION OF DATA. IN NO
EVENT SHALL INTERGRAPH BE RESPONSI8IE FOR DAMAGES IN EXCESS OF THE AMOUNT PAID BY CUSTOMER DURING THE
:PAST TWELVE MONTHS FOR THE SITE(S) REFERENCED IN THE MOST RECENT QUOTE ISSUED BY INTERGRAPH UNDER THIS
AGREEMENT AS OF THE DATE OF ANY SUCH WARRANTY CLAIM.
9.0 NON-SOLICITATION OF EMPLOYEES
For purposes of this Section 9.0, the term "empbyee" shoal also include empbyees of Intergraph's Services
subcontractors who d~recty support Customer. Customer agrees that it vwll not, without the prior wrifiten consent of
Intergraph, solicit or hire any Intergraph employee, or induce suds employee to leave Intergraph's employment,
directly or ind~ectly, during the term of Phis Agreement and for a period of twelve (12} months after the Agreement {
expires or is terminated. Customer agrees that a breach of this provision would cause actual and substantial
damages to Intergraph such that it would be very d'!fficult to calaAate actual damages. Accordingly, any such
breach wig entitle Intergraph to recover liquidated damages from Customer in the amount equal to one year of the
.affected employee's annual salary plus benefits for each such breach, as well as expenses, costs, and reasonable
afitomey's fees incurred by Intergraph in seeking enforcement of this Agreement. Customer agrees that the
foregoing amount is intended to be, and in fact is, a reasonable estimate of the actual damages that would be
incurred by Intergraph if Customer were to breach the proviisi~on, and that this amount is not intended to be, and in r
fact is not, a penalty. in addition, Intergraph shall be entitled to equitable or injunctive reTef to prevent further
breaches. I
10.0 MISCELLANEOUS
10. T Taxes ~
All maintenance charges are exclusive of United States and/or any other country's federal, sta#e,
municipal, or other governmental, withholding, excise, sales, use, value added or other taxes, tariffs,
custom duties and importing fees ("Taxes"J. Customer steal! be liable for, and shall indemnify and hold
Intergraph harmless from and against, any and all Taxes. Taxes shall expressly exclude any United States (i)
federal, (ii} slate, (in} municipal, (iv} or other govemmental income taxes, franchise taxes, business license
tees and other like taxes measured by Intergraph's income, capital and/or assets. The total invoice
amount for maintenance charges is subject to increase by the amount of any Taxes which Intergraph is
required to withhold, collect, or pay so that Intergraph receives the full amount of the maintenance 7
.charges. Any certificate to exempt the Agreement from tax liability or other documentary evidence of
statutory exemption shat! be obtained by Customer at Customer's expense.
10.2 Notices I
i~
Any notice or other communication ("Notice") required or permitted under this Agreement shall be in
.writing and either delivered personally or sent by electronic. mail, facsimile, ovemight delivery, express
: mail, or certified or registered mail, postage prepaid, return receipt requested. A Notice delivered
personally shall be deemed given only if acknowledged in writing by the person to whom it is given. A !
Notice sent by electronic mail or facsimile shall be deemed given when transmitted, provided that the
sender obtains written confirmation from the recipient that the transmission was received. A Notice sent
by overnight delivery or express mail shall be deemed given twenty-four (24) hours after having been sent.
..25E-14
A Notice that is sent by certified mail or registered mail shall be deemed given forty-eight X48} hours after it
is mailed. If any time period in this Agreement commences upon the delivery of Notice to any one or
more parties, the time period shall commence only when all of the required Notices have been deemed
given.
70.3 Headings
The various headings in these Terms and Conditions are inserted for convenience only~and shall not affect
the meaning or interpretation of these Terms and Conditions or any section or provision hereof.
10.4 Assignment
Neither party shat have the right to assign any of its rights nor d~egate any of its obligations under the Agreement
without the prior written consent of the .other party, provided that such consent shall not' be unreasonably withheld,
except That Intergraph may assign its rights and obligations under the Agreement, without the approval of Customer, '
to an entity which acquires al! or substantially aG of the assets of Intergraph or of the Intergraph div~ion furnishing
services under the Agreement, or to any subsidiary, affiliate or successor in a merger or acquisiition of fntergraph, or in
-the case of individual products or product lines, Intergraph may assign its rights and obligations under the Agreement `
for the product or product line, without the approval of Customer to an enfify which acquires aG or substantially all of
the product or product line asset.
10.51nterpretation
The Agreement shat for a0 pcxposes be construed and enforced under and in accordance with the Laws of the
-State of Alabama and shall have been deemed to have been executed in Huntsv~7fe, Alabama. The parties agree
that any legal action or proceeding relating to the Agreement shall be instituted in the Circuit Court for Madison t
.County, Alabama or the United States District Court for the Northern District of Alabama, Northeastern Divi~on. The
.parties agree to submit to the jurisdiction of and agree that venue is proper in these courts in any such legal action or
proceedings. ~
10.6 SeverabdNy °
Whenever pos~ble, each provision of the Agreement and each related document shall be interpreted in such a
manner as to be effective and valid under applicable k~v. However, if any provision of the Agreement or any
related document shall be prohibited by or invalid under applicable k~w, such provision shall be ineffective only to the
extent of such prohibition or invalidity without invalidating the remainder of such provision or the remaining prov~iorn
of the Agreement or such related document.
1Q:7 No Waiver
Any failure by either party tv enforce performance of the Terms and Conditions of the Agreement shall
not constitute a waiver of, or affect said party's right to avail itself of such remedies as it may have for any
subsequent breach of the terms of the Agreement. I
70.8 Force Majeure ~
Except for payment obligation hereunder, neither party shall be liable for any failure to perform or observe
-any of its obligations under this Agreement for as long as and to the extent that such performance is
.prevented or hindered by any circumstances beyond its reasonable control. By way of example and not
limitation, such causes may include acts of God or public enemies; labor disputes; acts of local, state, or
national governments or public agencies; utility or communications failure; fire; flood; epidemics; riots; or
.strikes. The time for performance of any right or obligation delayed by such events will be postponed for a
.period equal to the delay. If, however, a party is subject to a force majeure that endures for more than
sixty X60) days, the other party has a rightto terminate the Agreement.
25F-15
1 Q.9 Subcontraciiig
Intergraph reserves the right to provide services asset forth in this Agreement through a subcontract
arrangement with a third party maintenance provider.
1010 ENire ~yreement .
The Agreement constitutes the entire agreement between the parties hereto with regard to the subject matter
hereof. The Agreement supersedes any and an prior dscussionsand/or representations, whether written or oral, and
no reference to prior dealings may be used to in any way modify the expressed understandings of the Agreement.
The Agreement may not be amended or mod~ed unless done so in writing signed by authored representatives of
both parties.
i
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25F-16
Exhibit A
COTS Software, except DMC Software
A.i. SOFTWARE SERVICE
Intergraph offers three levels of support for Covered Products software, although not atl levels are available for all
software products. When available, the highest level of support offered ~ Premium Service which provides 24x7
coverage and Upgrades of Covered Products software. The service offered for the majority of the Covered Products
~ Standard Service which offers Upgrades and support during standard business hours. Advantage Service, when
available, provides support during standard business hours but no Upgrades. Customer may choose any level of
service offered;. however all Covered Products in the support Agreement must have the same level of service when
available.
A.1.i Premium Service
1
For'cxitical Customer applications, Premium Service provides support to the Customer twenty--four ham per day,
seven days perweek (24x7), including Intergraph-observed holidays.
.Premium Service will include and be Limited to the following for Security, Government & Infrastructure software
products listed on the Quote as having Premium level support under the Agreement:
(a) Out-of-the-box functionality support via the Het Desk tale ~
P ( phone or eService via Intergraph s web sifie} Phone
. support for all prraify levels of software errors is ava0able on normal business days from 7AM - 7PM Central Time, f
excluding Intergraph-observed holdays. When the software error is considered to be Crit'~cal (meaning
production ~ down), then phone support is ava1ableafter-hours and on Intergraph-observed holidays.
(b} Access to all published software Upgrades, updates, faces and enhancements
t
(c) Twenty-four-hoar-per-day/seven-day-per
week access to problem knowledge f3ase, an oMir~e self-help tool
(cl) Complete problem diagnostic support ('This often extends to data related problems that have nothing to do with 1
Intergraph software issues. It should be noted that when Intergraph solves a data related problem, it wnU provide
the instructions for solving fhe problem to the customer but not the actual solution. For example, if a customer has I
difficulty in performing a bundle adjustment due to a data problem, Intergraph wn'N instruct the customer on the !
proper steps to solve the problem, but will not, in
general, provide the results of the adjustment.)
Services are limited to the specific Security, Government 8, Infrastructure products listed on the Quote and functioning
on the appropriate Intergraph supported operating system.
Intergraph wiY notify Customer when Upgrades are made available for any Covered Products for which Premium
Service has been purchased. Upgrades are shipped upon Cus#omer request. ?
Premium Service is only available for the current version and the one version prior to fhe current version of a particular ~
Security, Government 8, Infrastructure software product. ~
Premium Service may not be available for all software products.
A.1.2 Standard Service
Standard Software support will be provided to the Customer during the hours of 7:00 a.m. to 7:00 p.m. Genital Time,
Monday through Friday, excludng Intergraphrobserved holydays.
Standard Service will include and be lirr~ted to the following for Security, Government ~ Infrastructure software
products I~ted on the Quote as having Standard level support under fhe Agreement:
(a} Out-of-the-box functionality support via the Help Desk (telephone or eService via Intergraph's web site} Phone
support for all priority levels of software errors is ava8ab[e on normal business days from 7AM - 7PM Central Time,
excuding Intergraph~bserved holidays.
(b} Access to all published software Upgrades, updates, fixes and enhancements
(c) Twenty-four-hoar-per-day/seven-day-per-week access to problem Knowledge Base, an on-lineself-help tool
25F-17
.
Exhibit A
COTS Software, except DMC Software
(d) Complete problem diagnostic support (This offien extends to data relafied problems that have nothing to do with
Intergraph software issues. It should be noted that when Intergraph solves a data related problem, it v~ill provide '
the instructions for solving the problem to the customer but not the actual solution. For example, if a customer has
difficulty in performing a bundle adjustment due to a data problem, Intergraph wtl insfivct the customer on the
proper steps to solve the problem, but v~nll not, in general, provide the results of the adjustment.)
Services are lenified fio the specific Security, Government 8< Infrastructure products rested on the Quote and functioning
on the appropriate Intergraph-supported operating system.
.Intergraph wi11 notify Customer when Upgrades are made avalable for any Covered Products for which Standard
Service has been purchased. Upgrades are shipped upon Customer request.
Standard Service is only avafabte for the cxurent version and the one version prior to the current version of a particular
Security, Government 8, Infrastructure software product
Standard Service may not be avalable for all software products.
A1.S Advca~tageService
Advantage Service support will be provided to the Customer during the hours of 7:00 a.m. to 7:00 p.m. Central'Time,
Monday Through Friday, excluding lntergraph-0bserved hd'idays. -
.Advantage Service wdl include and be limited to the fdlowing for Security, Government 8~ infrastructure software
.products fasted on the Quote as having Advantage level support under the Agreement:
(a) Out-of-the-box functiondity support via The Help Desk (telephone or eService via Intergraph's web site] Phone
support for all priority levels of software errors is avaaable on norrnal business days from 7AM - 7PM Central Time;
excluding Intergraph-obse~red holidays.
(b) 7wenfiy--tour-hour-per-day/severrclay-per-week access to problem Knowledge Base, an orNineself-help rod ~
Services are 6mifed to the specific Security, Government 8~ Infrastructure products fisted on the Quote. acid functioning
on the appropriate Intergraph-supported operating system.
Wllh Advantage Service the Customer is not eligible to receive Upgrades or new releases to any software for which
Advantage Service is contracted.
Advantage Service may not be available for at software products.
A.2 EXCLUDED SOFTWARE SERVICES - ~
.Services are limited to specific software products listed on the Quote and functioning on the appropriate
fntergraph supported operating system. ,Support for the following is outside the scope of this Exhibit and I
may be available under a different category of Service or through a separate agreement:
(a) Software malfunctions from causes other than through the ordinary and intended use of the software
(b) lnstaNation of any software, Upgrades, fixes or releases
(c) Network configuration ~ k
(d) System-level tuning and optim¢ation s
(e) Programming or software devekapment
(fl installation of Custom InterfaceSoftware -
Product training
Services provided by Intergraph under this Exhibit shall not include support calls that are necessary due to
.failure of software not supplied by Intergraph and noT covered in the Agreement.
25F-18
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25F-20