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HomeMy WebLinkAboutEARTHCHANNEL COMMUNICATIONS SOFTWARE SERVICES AGREEMENT /SYSTEMS MAINTENANCE AGREEMENTSOFTWARE AND SERVICES AGREEMENT THIS AGREEMENT (hereinafter the "Agreement ") is made this 10 *�- day of Tun , 2010, (the "Effective Date ") by and between Augusta, GA, a political subdivision of the State of Georgia, with its place of business at 530 Greene Street, Augusta, GA U.S.A., 30911, (hereinafter the "City "), and EarthChannel Communications, Inc., with its principal place of business at P.O. Box 870027, Stone Mountain, GA 30087 (hereinafter the "Vendor "). The City and the Vendor are sometimes hereinafter individually referred to as "Party" and hereinafter collectively referred to as the "Parties." RECITALS A. The Vendor desires to perform and assume responsibility and obligation for the provision of certain professional services, (the "System ") as hereinafter described, on the terms and conditions set forth herein. Vendor represents that it is experienced in providing live and on- demand streaming video content and related services to public clients, can legally do business in the State of Georgia, and is familiar with the scope of work of the City. B. The City desires to engage Vendor to render such services, as hereinafter described, for the Commission Meeting Streaming Video Project (the "Project ") on the terms and conditions set forth herein. NOW, THEREFORE, in consideration of the mutual covenants and conditions contained herein, the City and the Vendor agree as follows: OPERATIVE PROVISIONS SECTION I ENGAGEMENT AND SERVICES OF THE VENDOR Engagement of Vendor The City hereby engages the Vendor, and the Vendor promises and agrees to furnish to the City, subject to the terms and conditions set forth in this Agreement, all labor, materials, tools, equipment, services, and incidental and customary work necessary to fully and adequately supply the professional services necessary for the Project (the "Services "). The Services are more particularly described in Exhibit A attached hereto and incorporated herein by reference. The Vendor agrees to perform the Services in accordance with the terms and conditions of this Agreement, the exhibits attached hereto and incorporated herein by reference, and all applicable local, state and federal laws, rules and regulations in effect at the time the Services are provided. The Services include all activities necessary to successfully implement the Software and System Requirements found in Augusta RFP 10 -108, for which the Vendor submitted a proposal on 3/20/2010 (hereinafter "System Requirements "). The Vendor agrees that the System Requirements and the Vendor's proposal are incorporated herein by reference, and that the Vendor is bound by the response to those requirements unless a change has been permitted in writing by the City. 2. Performance of the Vendor; Standard of Care The Vendor accepts the relationship of trust and confidence established between the City and the Vendor by the terms of this Agreement. The Vendor covenants with the City to perform all Services under this Agreement in a skillful and competent manner, exercising a high standard of skill, quality and care while doing so. Vendor represents and maintains that it is skilled in the professional calling necessary to perform the Services, and that it shall employ all required proven and tested methods known for successfully implementing the services required to satisfy this contract. Vendor shall also cooperate with the City and any other consultants or contractors engaged by or on behalf of the City in performance of the Project. The Vendor covenants to use its commercially reasonable efforts to perform its duties and obligations under this Agreement in an efficient, expeditious and economical manner, consistent with the best interests of the City and the professional standard of care set forth in this Agreement. SECTION II RESPONSIBILITIES OF THE VENDOR 1. The Vendor's Responsibilities for Costs and Expenses Except as otherwise expressly stated herein, the Vendor shall be solely responsible for all costs and expenses incurred relative to the Vendor, personnel of the Vendor and sub - contractors of the Vendor in connection with the performance of the Services, including, without limitation, payment of salaries, fringe benefits contributions, bonding fees, payroll taxes, withholding taxes and other taxes or levies, office overhead expense, travel expenses, telephone and other telecommunication expenses, and document reproduction expenses. 2. Independent Contractor The Services shall be performed by Vendor or under its supervision. Vendor shall determine the means, methods and details of performing the Services subject to the requirements of this Agreement. The Vendor represents that it possesses the professional and technical personnel required to perform the Services. The City retains Vendor on an independent contractor basis and not as an employee of the City. Vendor retains the right to perform similar or different services for others during the term of this Agreement. The personnel performing the Services on behalf of the Vendor shall at all times be under the Vendor's exclusive direction and control. The Vendor shall pay all expenses, including, without limitation, all wages, salaries, fringe benefit contributions, payroll taxes, withholding taxes, other taxes or levies and all other amounts due such personnel for the Services or due others as a result of the performance by such personnel of the Services. Vendor shall be responsible for all reports and obligations respecting such additional personnel, including, but not limited to, all reports for social security taxes, income tax withholding, unemployment insurance, disability insurance, and workers' compensation insurance. 3. Vendor's Project Manager The Vendor shall designate and assign a project manager ( "Project Manager "), who shall coordinate all phases of the Services and act as the Vendor's representative for performance of this Agreement. The Project Manager shall have full authority to represent and act on behalf of the Vendor for all purposes under this Agreement, and shall be available to the City at all reasonable times. The Project Manager shall supervise and direct the Services, using his or her best skill and attention, and shall be responsible for all means, methods, techniques, sequences and procedures employed by Vendor's personnel, as well as the satisfactory coordination of all portions of the Services under this Agreement. 4. Key Personnel Vendor has represented to City that certain key personnel will perform and coordinate the Services under this Agreement. Should one or more of such personnel become unavailable, Vendor may substitute other personnel of at least equal competence upon written approval of City. Any personnel who fail or refuse to perform the Services in a manner acceptable to the City, or who are determined by the City to be uncooperative, incompetent, a threat to the adequate or timely completion of the Project or a threat to the safety of persons or property, shall be promptly removed from the Project by the Vendor at the request of the City. 5. City Network Security and Integrity_ If the Vendor will require access through Augusta's firewall in order to connect to a server maintained by the Vendor, then the Vendor will sign a VPN Vendor Access Agreement with the City, verifying that the Vendor will respect the integrity of City's network and security protocols. This agreement is attached as Exhibit F. 6. Time of Performance Vendor shall use commercially reasonable efforts to complete the services covered under and pursuant to this Agreement as directed by the City's Project Administrator by the date of project completion as described in Exhibit D, Project Schedule, ( " the Completion Date "), unless earlier terminated as provided herein, or as may be modified by mutual written agreement. Vendor shall perform the Services expeditiously, within the term of this Agreement, and in accordance with any schedule of services mutually acceptable to the Parties. Delays in implementation will be subject to a Penalty, under certain conditions, as described in Section VI in this agreement. 7. Software License and Support Agreement The vendor will provide the licenses identified in Exhibit A for the City's use as governed by the Software License and Support Agreement, a copy of which is attached as Exhibit B. 8. Escrow Agreement The vendor has provided for a software escrow agreement, a copy of which is attached as 2 Exhibit C, which provides for access to software source code under certain circumstances that are defined in the agreement. If this is not required for this project Exhibit C should simply include justification of why this is not necessary, subject to approval by the City. 9. Consistency with City Policies City and Vendor Project Manager shall discuss in advance of all critical decision points all matters relating to the Services in order to ensure that the Services proceed in a manner consistent with the goals and policies of the City. 10. Conformance to Applicable Requirements All aspects of the provision of the Services by Vendor shall conform to all applicable city, county, state, and federal laws, rules and regulations in effect at the time the services are provided. 11. Prohibition Against Transfers The Vendor shall not assign, sublease, hypothecate, or transfer this Agreement, or any interest therein, directly or indirectly by operation of law without the prior written consent of the City. Any attempt to do so without the prior written consent of the City shall be null and void, and any assignee, sub - lessee, hypothecate or transferee shall acquire no right or interest by reason of such attempted assignment, hypothecation, or transfer. 12. Progress The Vendor is responsible to keep the City Project Manager and/or his or her duly authorized designee informed on a regular basis regarding the status and progress of the Services, activities performed and planned, and any meetings that have been scheduled or are desired relative to the Services or this Agreement. 13. Confidentiality No news releases, including photographs, public announcements or confirmations of the same, of any part of the subject matter of this Agreement or any phase of the Services shall be made without prior written consent of the City, such consent to not be unreasonably withheld, and provided in a timely manner. The information which results from the Services in this Agreement is to be kept confidential, unless the release of information is authorized by the City. All Report Materials, either created by or provided to Vendor in connection with the performance of this Agreement, shall be held confidential by Vendor. Such materials shall not, without the prior written consent of City, by used by Vendor for any purposes other than the performance of the Services. Nor shall such materials be disclosed to any person or entity not connected with the performance of the Services or the Project. Nothing furnished to Vendor which is otherwise known to Vendor or is otherwise generally known, or has become known, to the related industry, shall be deemed confidential. Vendor shall not use City's name or insignia, photographs of the Project, or any publicity pertaining to the Services or the Project in any magazine, trade paper, newspaper, television or radio production or other similar medium without the prior written consent of City. 14. Georgia Open Records Act The Vendor acknowledges that this Agreement and certain documentation may be subject to the Georgia Open Records Act (O.C.G.A. § 50- 18 -70, et seq.). Vendor shall cooperate fully in responding to such requests and shall make all records, not exempt, available for inspection and copying as required by law. Vendor shall clearly mark any information provided to City which Vendor contends is Proprietary Information. Vendor shall notify City immediately of any Open Records request arising out of this contract and shall provide to City a copy of any response to the same. 15. No Set Hours /Right to Contract. The Vendor's obligation hereunder is to complete the Services in accordance with this Agreement and to meet any deadlines established pursuant to this Agreement. The Vendor has no obligation to work any particular schedule, hours or days, or any particular number of hours or days. However, the Vendor shall coordinate with the City in achieving the results and meeting the goals established pursuant to this Agreement. 16. Accounting Records Vendor shall maintain complete and accurate records with respect to all costs and expenses incurred under this Agreement. All such records shall be clearly identifiable. Vendor shall allow a representative of City during normal business hours to examine, audit, and make transcripts or copies of such records and any other documents created pursuant to this Agreement. Vendor shall allow inspection of all work, data, documents, proceedings, and activities related to the Agreement for a period of three (3) years from the date of final payment under this Agreement. 17. Safety Vendor shall execute and maintain its Services so as to avoid injury or damage to any person or property. In carrying out its Services, the Vendor shall at all times be in compliance with all applicable local, state and federal laws, rules and regulations, and shall exercise all necessary precautions for the safety of employees appropriate to the nature of the work and the conditions under which the work is to be performed. SECTION III RESPONSIBILITIES OF THE CITY Cooperation The City shall cooperate with the Vendor relative to the provisions of the Services. To the extent permitted by applicable law, the City shall provide criteria and information in its possession, or reasonably obtainable by it, as requested by Vendor, and shall make that information and related data available for Vendor's use during the performance of this Agreement. The City shall render decisions required by this Agreement within the time indicated, or if not specifically stated, with reasonable promptness so as not to unduly delay the progress of Vendor's Services. City's Project Manager and Project Staff. The City shall designate and assign a City project manager ( "City Project Manager ") who shall have full authority to represent and act on behalf of the City for all purposes under this Agreement. The City Project Manager, or his /her designee, shall be the principal officer of the City for liaison with the Vendor, and shall review and give approval to the details of the Services as they are performed, in particular, but not exhaustively, Project Plan, Functional Requirement Specifications, Statements of Work, Acceptance Plans, Statements of Completion, Change Order Requests. In addition, the City Project Manager shall ensure proper and timely availability of all City personnel required by the Vendor for successful completion of project tasks, in particular, but not exhaustively, Business and Systems Analysts, IT staff, Subject Matter Experts. The City designates Michael Blanchard, Assistant Director of IT, to be its City Project Manager, but reserves the right to appoint another person as City Project Manager upon written notice to the Vendor. Project Plan. The City shall be responsible for meeting specific milestones and providing specific deliverables that have been agreed to in Exhibit D. Should the City fail to meet the agreed milestones or to provide the agreed deliverables, the Vendor will inform the City of the consequences thereof and reserves the right to modify the project plan accordingly. SECTION IV COMPENSATION 1. Compensation In consideration of the performance by Vendor of the Services, the City shall pay to the Vendor compensation at the rates set forth in Exhibit "A" attached hereto and incorporated herein by reference. While estimates have been provided for certain work items in the project, such as data conversion, total compensation under this Agreement shall not exceed the Total Project amount as indicated in Exhibit "A" without written approval of the City Administrator or the Augusta Commission depending on the amount of the excess and the reason why the initial amount was insufficient. 2. Extra Service The Vendor shall not receive additional compensation for any extra service unless such extra service has been authorized in writing by the City prior to the commencement of the extra service. The City shall pay the Vendor for extra service in accordance with the fee schedule set forth in Exhibit "A ". As used herein, "Extra Service" means any work which is determined by City to be necessary for the proper completion of the Project, but which the Parties did not reasonably anticipate would be necessary at the execution of this Agreement. 3. Payment of Compensation The Vendor shall submit invoices to the City as defined in the payment milestones in Exhibit D, or on such other basis as may be mutually agreed upon by the Parties. Each invoice will be itemized. The City shall make payments to the Vendor within thirty (30) days following the date of receipt of the invoice, unless the City disputes the amount of the Compensation the Vendor claims it is owed under this Agreement. Any disputed amount shall be handled as discussed herein. 4. Reimbursements Vendor shall not be reimbursed for any expenses unless they are authorized in writing by City and 4 they are of a type approved in advance as part of this contract. Such reimbursable expenses, if approved, shall include only those expenses which are reasonably and necessarily incurred by Vendor in the interests of the Project. Reimbursable expenses will be paid only at the actual cost to the Vendor, with no mark -up for overhead or profit. Expenses may be included as part of the overall project cost, provided that they are "Not to Exceed" a certain amount as determined by the Vendor. Disputed Sums The City will withhold up to one hundred percent (100 %) of any disputed portion of Compensation until resolution of the dispute with the Vendor. Such withholding shall only take place due to non - performance of the Vendor, with non - performance being defined as the inability to complete the project or parts thereof when Augusta has fulfilled its obligation to the vendor, and shall not be deemed to constitute a failure to pay by the City. The Vendor shall not have the right to allege a breach of this Agreement for failure to pay by the City and to discontinue its performance of the Services hereunder for a period of thirty (30) days from the date Compensation is withheld hereunder. The City's Project Manager and the Vendor's Project Manager shall attempt to promptly resolve the dispute. The Vendor shall have an immediate right to appeal to the City Administrator with respect to withheld amounts. The determination of the City Administrator with respect to such matters shall be final, subject to the mediation and arbitration provisions provided herein. Nothing herein shall be construed as limiting the Parties rights to pursue all available legal remedies. SECTION V EXPIRATION AND TERMINATION Events of Default Each of the following events shall constitute an "Event of Default ": A. The Vendor shall fail to observe, perform or comply with any material term, covenant, agreement or condition of this Agreement which is to be observed, performed or complied with by the Vendor, if such failure continues uncured for thirty (30) calendar days after the City gives the Vendor written notice of the failure and the specific nature of such failure. B. The Vendor shall commit any fraud, misrepresentation, breach of fiduciary duty, willful misconduct, or intentional breach of any provision of this Agreement. 2. Termination Upon Event of Default In addition to any other available legal or equitable rights or remedies, upon an Event of Default by the Vendor, the City shall have the right to terminate this Agreement upon at least thirty (30) days written notice to the Vendor. 3. Expiration Unless extended as provided for herein, this Agreement shall naturally expire on the Completion Date. 4. Payment Upon Termination Upon a termination of this Agreement, the City shall pay to the Vendor the part of the Compensation which would otherwise be payable to the Vendor with respect to the Services which had been adequately completed as of the date of termination, less the amount of all previous payments with respect to the Compensation. 5. Termination by Vendor: Vendor may terminate this Agreement only upon the substantial breach by the City of a material provision of this Agreement including failure to pay. 6. Termination for Convenience: Upon advance written notice to Vendor, the City may, without cause and without prejudice to any other right or remedy of the Vendor, elect to terminate the Agreement. In such case, Vendor shall be paid (without duplication of any items): A. For completed and acceptable work executed in accordance with the terms of the agreement prior to the effective date of termination, including fair and reasonable sums for overhead and profit on such work; B. For expenses incurred prior to the effective date of termination in performing services and furnishing labor, materials or equipment as required by the contract documents in connection with uncompleted work, plus fair and reasonable sums for overhead and profit on such expenses; C. For all claims, costs, losses and damages incurred in settlement of terminated contracts with subcontractors, suppliers and others, and; for reasonable expenses directly attributable to termination. 7. Termination by Either Party In the event of termination of this Agreement by either the City or the Vendor, both agree to the following: A. City shall destroy the locally - installed components of the SYSTEM as defined in the Software License and Support Agreement, Exhibit `B ", together with all copies, modifications and merged portions, or B. Return any locally -held components of the SYSTEM together with all copies, modifications and merged portions to Vendor, or C. City may continue to use the SYSTEM with the permission of the Vendor, with no expectation of continued maintenance, support, update, or upgrade, and D. All Vendor -owned hardware shall be returned to the Vendor, at the expense of the party that initiated the termination. E. In the event that the SYSTEM is a "Software -as -a- Service" offering (in which there are no locally - installed software components), provisions A -C above may considered to be null and void, and City shall cease to utilize the service effective of the date of termination unless the City and the Vendor mutually agree in writing to other means or schedule of shutting down service. F. In the event of termination by either party, City shall be entitled to receive all data captured by the Vendor as part of services supplied under this agreement, to be transferred in its entirety within 30 days of notice of termination. Means of transfer shall be any technically efficient means given the size of the data captured, and shall include. Any costs associated with the transfer of data shall be paid by the party that initiated the termination. G. In cases referenced according to items A and B above, Vendor shall certify in writing that all proprietary information, data, schema, or documentation belonging to City have either been returned to Licensee or destroyed and vice versa. SECTION VI GENERAL PROVISIONS 1. Nondiscrimination by the Vendor The Vendor represents and agrees that the Vendor, its affiliates, subsidiaries, or holding companies do not and will not discriminate against any subcontractor, Vendor, employee, or applicant for employment because of race, religion, color, sex, handicap, national origin or any other protected classification under federal or state law. Such nondiscrimination shall include, but not be limited to, the following: employment, upgrading, demotion, transfers, recruitment, recruitment advertising, layoff, termination, rates of pay or other forms of compensation, and selection for training, including apprenticeship. 2. City's Rights to Employ Other Vendors The City reserves the right to employ other Vendors in connection with this Project. 3. Conflicts of Interest; Prohibited Interests Vendor maintains and warrants that it has not employed or retained any company or person, other than a bona fide employee working solely for Vendor, to solicit or secure this Agreement. Further, Vendor warrants that it has not paid or agreed to pay any company or person, other than a bona fide employee working solely for Vendor, any fee, commission, percentage, brokerage fee, gift or other consideration contingent upon or resulting from the award or making of this Agreement. For breach or violation of this warranty, City shall have the right to rescind this Agreement without liability. For the term of this Agreement, no member, officer or employee of City, during the term of his or her service with City, shall have any direct interest in this Agreement, or obtain any present or anticipated material benefit arising there from. 4. Subcontracting The Vendor shall not subcontract any portion of the Services except as expressly stated herein, without prior written consent of the City. Subcontracts, if any, shall contain a provision making them subject to all provisions stipulated in this Agreement. 5. Waiver No waiver of any default shall constitute a waiver of any other breach or default, whether of the same or any other covenant or condition. No waiver, benefit, privilege, or service voluntarily given or performed by other parties shall give the other any contractual right by custom, estoppel, or otherwise. 6. Notices All notices required hereunder shall be given in writing to the following addresses or such other addresses as the parties may designate by written notice: To the City: Tameka Allen, IT Director Greene Street, A -101 Augusta, GA 30911 T: 706.821.2522 F: 706.821.2530 Copies to: Fred Russell, City Administrator 530 Greene Street, Room 801 Augusta, GA 30911 T: 706.821.2400 To the Vendor: Cliff Johnson, CEO EarthChannel Communications P.O. Box 870027 Stone Mountain, GA 30087 T: 770.972.7531 Notice shall be deemed received as follows, depending upon the method of transmittal: by facsimile, as of the date and time sent; by messenger, as of the date delivered; and by U.S. Mail, certified, return receipt requested, as of five (5) days after deposit in the U.S. Mail. Actual notice shall be deemed adequate notice on the date actual notice occurred, regardless of the method of service. 7. Authority to Enter Agreement The Vendor has all requisite power and authority to conduct its business and to execute, deliver and perform all of its obligations under this Agreement. Each Party warrants that the individuals who have signed this Agreement have the legal power, right and authority to enter into this Agreement so as to bind each respective Party to perform the conditions contemplated herein. 8. Severability If any portion of this Agreement is declared by a court of competent jurisdiction to be invalid or unenforceable, the remaining provisions of this Agreement shall continue in full force and effect. 9. Time is of the Essence Time is of the essence in this Agreement, and all parties agree to execute all documents and to proceed with due diligence to complete all covenants and conditions set forth herein. 10. Governing Law and Venue This Agreement shall be governed by and construed in accordance with the laws of the State of Georgia. All claims, disputes and other matters in question between the City and the Vendor arising out of, or relating to, this Agreement, or the breach thereof, shall be decided in the Superior Court of Richmond County, Georgia. Vendor, by executing this Agreement, specifically consents to venue and jurisdiction in Richmond County, Georgia and waives any right to contest jurisdiction and venue in said Court. 11. Entire Agreement This Agreement contains the entire agreement of the City and the Vendor, and supersedes any prior or written statements or agreements between the City and the Vendor. No supplement, modification, or amendment of this Agreement shall be binding unless executed in writing by both Parties. 7 12. Binding on Assigns Each and all of the covenants and conditions of this Agreement shall be binding on, and shall inure to, the benefit of the successors and assigns of the respective parties. 13. Captions The captions of the various articles and paragraphs are for convenience and ease of reference only, and do not define, limit, augment or describe the scope, content or intent of this Agreement. 14. Construction Since the Parties or their agents have participated fully in the preparation of this Agreement, the language in all parts of this Agreement shall be construed simply, according to its fair meaning and not strictly for or against any party. 15. Cooperation/Further Acts The Parties shall fully cooperate with one another in attaining the purposes of this Agreement. In connection therewith, the Parties shall take any additional further acts and steps and sign any additional documents as may be necessary, appropriate and convenient to attain the purposes of this Agreement. 16. No Third Party Beneficiaries There are no intended third party beneficiaries of any right or obligation assumed by the Parties. 17. Incorporation of Exhibits The "Exhibits" constitute a material part hereof, and are hereby incorporated into the Agreement by reference as though fully set forth herein. The terms "Attachment ", "Exhibit", and "Schedule" shall be synonymous for purposes of this agreement. 18. References All references to the Vendor shall include all personnel, employees, agents and sub - Vendors of the Vendor. 19. Go -Live "Go Live" shall be the date on which the software is expected to be placed into operational use by the Customer. 20. System Acceptance. "System Acceptance" as used herein means the date on which all of the following events have taken place: A. 30 calendar days have passed since "Go- Live ". B. All System Requirements have been successfully completed, or arrangements have been made to complete them at a later date. The demonstration of the delivered solution meeting all System Requirements is the Vendor's right and responsibility. In the event that arrangements have been made to complete some of the System Requirements at a later date, this must be with the written approval of the Director of Information Technology and the Chief Official of the customer department or office, whose operations would be impacted by the inability of the Vendor to fully implement their software. Such delays may be subject to liquidated damages, at the discretion of the City, described in Item 22 below. 22. Liquidated Damages For each day past the "Go Live" date that the Vendor has not delivered a product suitable for business use, there shall be a penalty of $250 per day. City agrees to submit to Vendor, in writing, any issues that may impact the "Go Live" that are believed to be the Vendor's responsibility and may therefore increase the likelihood of a penalty being invoked. City shall identify these issues as soon as possible so that corrective action can be taken by Vendor. The penalty shall not apply under the following circumstances: A. The Go Live date was extended or moved by mutual consent of City and Vendor. If the Go Live date is extended or moved by written mutual consent of both parties, then penalties will accrue beginning on the new Go Live date. B. City did not meet requirements or objectives required in order to facilitate Go Live as scheduled (including failure to order equipment that was the City's responsibility to order, or failure to set up said equipment). Such failure by the City must be documented in writing by Vendor as soon as possible so that corrective action can be taken. C. City failed to notify Vendor of additional requirements which, when identified, impacted the Go Live date of the project. Such failure by the City must be documented in writing by Vendor as soon as possible so that corrective action can be taken. If said penalties are enacted, all penalties will become due and payable upon failure to meet the Go Live date and shall accrue until paid in full. Additional services and/or licenses may be accepted as payment provided that this type of restitution is acceptable to the City. 23. Precedence of Documents For the resolution and interpretation of any inconsistencies in this Agreement and/or the Exhibits or Attachments hereto which are incorporated herein by this reference, the terms and conditions of this Agreement shall take precedence over any Exhibits or Attachments hereto and any inconsistency between the Exhibits and Attachments will be resolved by the priority in which they are listed as Exhibits. 24. Survival The following sections, along with any other provisions which by their terms survive, shall survive the expiration or termination of this Agreement. A. Section II (6) — City Network Integrity and Security B. Section II (14) - Confidentiality C. Section V (6) - Termination by Either Party D. Section VI (11) - Governing Law and Venue E. Exhibit F — Vendor Network Access Policy Wherefore the above referenced parties have caused this agreement to be executed in two originals by and through their duly authorized officials: FOR CITY: By: j " By: FOR Printed t,', �^�� Deke Cope aver Print( Title: Mayor Title: Date: Date: Attest: Date: W WI R CEO, EarthChannel Communications T // 9 EXHIBIT A VENDOR SERVICES, SOFTWARE & LICENSES • • : EarthChannel Proposal Note: Media Management. Inc., EarthChannel Basic GTV service: $3995/yr (includes all included base features mentioned elsewhere in this document. No additional upfront costs are required.) • Internet hosting and distribution of 1 live video channel; up to 24 -hrs /day / 7- days /week • Internet hosting and distribution of 1 live audio -only channel for in -house or limited bandwidth users, such as the iPhone • The channel(s) shall be broadcast from the Augusta facility as a 144Kbs data stream in the MS Windows Media format, plus a 16Kbs audio -only stream. • Augusta is responsible for upload bandwidth and Internet connection adequate to accommodate the live stream; approximately 200Kbs. This can be accomplished via an in -house Internet connection, a dedicated cable modem or DSL connection with a fixed or static IP address. A fully compatible Windows Media Encoder is required and not included in our Basic GTV service. Augusta may provide their own encoder, purchase an encoder from us, or include the use of one as part of our service. See options below. • Internet hosting of up to 800 -hours of archived media (VOD) at the above rates; (typically 3 -4yrs of municipal programming.) Additional storage is optionally available. There is no limitation as to how long any video can remain on our servers. Any type of video programming may be used; meetings, educational, positioning, etc. A variety of customized player views and sizes are available at no additional cost, that provide appropriate views for different types of programming. • Unlimited U.S. viewer bandwidth for both Live and OnDemand will be provided • Adequate bandwidth to support a minimum of 6000 - simultaneous streams per server • Unlimited support • Streaming servers with a minimum of 1.0- Gigabit connection to the Internet • 99.9 +% Server uptime guaranteed • Unlimited use of EC- Indexer software & TinyClip for easy indexing of VOD files • Term: one year, from first date of "go live" • Telephone /web - assisted installation, setup and training (normally requires less than 2hrs) • Upon completion, service will be automatically renewed for one additional year with a guarantee of no price increase, unless a disconnection notice is provided by Augusta at least 30 -days prior to expiration. Any price increase incurred on the third or subsequent years is guaranteed NTE 2.5 %. 10 Features Encoder • ECTV -II professional, multi - channel encoder, completely warranted and maintained for 2 -yrs:, (including cross -ship service in the event of a catastrophic failure) $4995 one -time cost, plus $65 shipping Software & Features •Realtime Indexing (includes SSR): $4000 /yr -Automated integration/cross- linking w/NovusAgenda, includes setup and support: $1000 /yr (manual integration included in basic GTV pkg) •In -house Streaming Server: • Supplied as part of service, completely warranted and maintained; includes MS Server 2003, Ent. Ed.: $1800 /yr. Pricing Summary + Olin t .[ Basic GTV Service $ 3,995.00 Real-time Indexing (includes Server -Side Recording) $ 4,000.00 Automated Indexing Interface with NovusAgenda $ 1,000.00 In-House Streaming Server as part of service (Note 1) $ 1,800.00 Simulcast Audio Stream Included ualrc�1M .: tf $ 10,795.00 e;'rjcctt {111�#e �) x $4,995 (encoder) + $65 shipping r, otai. $ 15,855.0 3. Note 1: City may determine upon review of usage reports that this is not worthwhile, and may discontinue service without penalty at any time. Additionally, City shall either be 1) refunded a pro -rated amount of the cost of this service based on the number of months actually used, or the amount shall be reduced from the following year's service /maintenance cost. In the event that the City discontinues service, then the City shall be responsible for shipping costs associated with the return of any equipment to EarthChannel. Note 2: The City shall purchase an encoder for use with this project/service. EarthChannel agrees to grant the City two years of "cross ship warranty" for this equipment (valued at $500 per year) at no charge to the City. 11 EXHIBIT B - SOFTWARE LICENSE AND MAINTENANCE AGREEMENT The Support Agreement is a separate, annually renewable document relating specifically to the ongoing maintenance of the technology solution provided to Augusta by the Vendor. It will be signed separately and shall survive independently of this document. EXHIBIT C - ESCROW AGREEMENT Per Augusta IT, an escrow account is not required for this project due to the fact that this project primarily involves the implementation of services rather than software. EXHIBIT D - PROJECT SCHEDULE *All dates are subject to change upon mutual agreement of Augusta and Vendor. EXHIBIT E - PERFORMANCE BOND Not required for this project. 12 Projected Event; Completion State. Date* Selection of Vendor Complete Contract Negotiation 5/2010 Approval of Contract by City Attorney 5/2010 Administration / Commission Approval 6/2010 Contract Signing 6/2010 Will be scheduled pending arrival of equipment Implementation (Go Live) 6/2010 that must be ordered by Augusta IT and installation of infrastructure and equipment as needed. Acceptance Testing Go Live + 30 calendar days System Acceptance At completion of pending completion of system requirements acceptance testing Final Billing (100% Software & Services) 7/2010 Billable upon System Acceptance by Augusta *All dates are subject to change upon mutual agreement of Augusta and Vendor. EXHIBIT E - PERFORMANCE BOND Not required for this project. 12 EXHIBIT F VENDOR REMOTE NETWORK ACCESS POLICY AND PROCEDURES Purpose The purpose of this policy is to ensure that a secure method of connectivity is provided between Augusta - Richmond County and the vendor and to provide guidelines for the use of the network and computing resources associated with the remote connectivity in order to ensure the safety, integrity, and operability of Augusta - Richmond County Information Systems. Scope This policy applies to all Augusta - Richmond County systems, application and/or servers /devices requiring support by external vendors on behalf of Augusta - Richmond County. Definitions A Virtual Private Network (VPN) provides a secure network connection over the Internet between an individual and a private network (164 bit encryption). By utilizing the public Internet for data transport, VPN provides a low cost solution to remote access or connectivity. Policy Sections A, B, and C of the following policy apply to requests for remote access to a server(s) for the purpose of providing troubleshooting / technical support of a vendor - supplied software application. A. Vendor Access Request and Approvals for Remote Support All requests for remote access for vendors must be made in advance through the Project Leader responsible for the vendor. It is the Project Leader's responsibility to ensure that the vendor has provided all of the required information in the proper format. All vendor remote access requests must first have the Assistant Director of the Business Application Services signature for approval as well as the Director of Information Technology. As part of the request and approval process, the technical and administrative contact within the vendor's organization or someone at a higher level within the company will be required to read and sign the VPN Access policy form and any additional documents, such as the Augusta - Richmond County Non - Disclosure Agreement. Once Vendor Remote Access has been approved, it is valid until changes in this policy or technology make it necessary, in Augusta's estimation, to require a new form to be filed. Remote Access will only be available to Vendors that have signed Annual Support and Maintenance Contracts with Augusta. B. Connectivity 1. The vendor will be required to use Augusta- Richmond County's standard method for connecting to the network. The current standard method is Cisco's VPN client. 2. The vendor will be given a unique user ID and password to authenticate the VPN access. The password may be subject to regular changes. 3. Only one person may be connected to the VPN at any given time. 4. Access will be restricted to only the servers located in IT that were approved for the vendor. 5. Access will be restricted to only the ports necessary for connectivity. 6. Access will not be open 24/7. The vendor must request access every time it is necessary and only during business hours of 8:30am — 5:00pm EST. Access outside of these hours may be requested but will need additional approval and will be handled on a case by case situation. 13 C. Vendor Request Process 1. The vendor will contact the Project Leader to request access. 2. The Project Leader is responsible for logging the request for access and justification in the change control log. 3. The Project Leader will document reason for access and email Firewall Administrators to have the VPN opened. 4. A firewall administrator will open the VPN and reply to the Project Leader's email notifying them it has been opened. 5. Once the vendor has completed their work and the application has been tested, they will notify the Project Leader that the work is complete. D. Continuous Vendor Connectivity 1. Certain applications and technology solutions may require continuous connectivity due to the nature of the application (such as streaming content, etc.). This is permissible provided that Augusta IT has received technical specifications for the solution and has approved the means required for connectivity. 2. In the event that it is established that continuous connectivity is a requirement of the solution, then Augusta IT will create a firewall rule to allow specified ports destined to a static IP address provided by the vendor. 3. All sections below regarding security, accountability, and enforcement are still valid and shall apply to all vendors contracting with Augusta and their 3 rd -party data center and/or software hosting providers. 4. The determination that a vendor solution shall be permitted continuous connectivity through Augusta's firewall rests solely within the purview of Augusta IT, and no language in this policy shall be assumed to grant any vendor continuous access without Augusta's written permission. E. Network Security 5. Vendor will allow only the vendor's employees approved in advance by Augusta - Richmond County to access the network connection. Vendor shall be solely responsible for ensuring that Authorized Vendor Employees are not security risks, and upon Augusta - Richmond County's request, Vendor will provide Augusta - Richmond County with any information reasonably necessary for Augusta - Richmond County to evaluate security issues relating to any Authorized Vendor Employee. 6. Vendor will promptly notify Augusta - Richmond County whenever any Authorized Vendor Employee leaves the Vendor's employ or no longer requires access to the Network Connection. 7. Each party will be solely responsible for the selection, implementation and maintenance of security procedures and policies that are sufficient to ensure that (a) such party's use of the Network Connection is secure and is used only for authorized purposes, and (b) such party's business records and data are protected against improper access, use, loss, alteration or destruction. 8. Vendor shall notify Augusta - Richmond County in writing promptly upon a change in the user base for the work performed over the Network Connection or whenever in vendor's opinion a change in the connection and/or functional requirements of the Network Connection is necessary. F. Protection of Augusta - Richmond County Private Information and Resources The Augusta - Richmond County network support group responsible for the installation and configuration of a specific vendor connection must ensure that all possible measures have been taken to protect the integrity and privacy of Augusta - Richmond County confidential information. At no time should Augusta - Richmond County rely on access /authorization control mechanisms at the vendor's site to protect or prohibit access to Augusta - Richmond County confidential information. Augusta - Richmond County shall not have any responsibility for ensuring the protection of vendor information. The vendor shall be entirely responsible for providing the appropriate security measures to ensure protection of their private internal network and information. G. Audit and Review of Vendor Network Connections All aspects of the vendor network connections up to, but not including Augusta - Richmond County firewall, will be monitored by the appropriate IT staff. Where possible automated tools will be used to audit tasks. Monthly reports 14 should be generated on the authentication database showing the specific login entries. All vendor network connections will be reviewed on a quarterly basis and information regarding specific vendor network connection will be updated as necessary. Obsolete vendor network connections will be terminated following confirmation with the Project Leader that the connection is indeed obsolete. H. Augusta - Richmond County IT Security Augusta - Richmond County IT Security has the responsibility for maintaining related policies and standards. IT Security will also provide advice and assistance regarding judgment calls, and will facilitate information gathering in order to make a correct decision. I. Enforcement Any vendor found in violation of this policy will be subject to, but not limited to, loss of connectivity privileges and other action up to and including dissolution of contract and/or legal action if Augusta systems are compromised. 15 SYSTEM MAINTENANCE AGREEMENT THIS AGREEMENT (hereinafter the "Agreement ") is made this 30t" day of wnd. , 2010, (the "Effective Date ") by and between Augusta, GA a political subdivision of the State of Georgia, with its place of business at 530 Greene Street, Augusta, GA U.S.A., 30911 (herein referred to as "City ") and EarthChannel Communications, Inc., (herein referred to as "Vendor ") with its place of business at P.O. Box 870027, Stone Mountain, GA 30087. WHEREAS, Vendor and City have entered into a certain agreement (the "Software and Services Agreement ") pursuant to which Vendor agrees to provide to the City a solution for Live and On- Demand Streaming Video(the "System ") as specified in the License Agreement; WHEREAS, Vendor desires to maintain, and City desires to obtain the maintenance of, the System on the terms and conditions hereinafter provided; 1. Maintenance Services The maintenance services to be hereunder (the "Maintenance Services ") shall consist of (a) technical or operational assistance provided by Vendor to City relating to the System or enhancements thereto and (b) distribution by Vendor to City at no charge of enhancements to the System which may be developed from time to time by Vendor. These are described in detail as follows. Vendor shall provide City with and/or shall maintain (as part of its Technical Support): • Unlimited telephone, fax, web - based, and email support. • Technical support available Monday through Friday from 8:OOAM to 8:OOPM Eastern Standard Time (EST). • Technical Support shall respond with replies within one hour during business hours. • Unlimited access to the Vendor ftp site (or other location as appropriate) on the Internet for file upload and download. • All program updates and releases, including new features to existing system, additional reports, and product enhancements. • Vendor will provide onsite services at no cost to the City if a resolution to a technical problem cannot be determined by online means or by telephonic communications. 2. Additional Services At the request of City, and with the consent of Vendor, Vendor may also provide technical, operational or other assistance or consulting to City in excess of the amount included as the Maintenance Services at Vendor's standard hourly rates then in effect. Such assistance shall be subject to written approval of the City and shall be performed in consultation with the City's Information Technology Department so that any impact on performance of software and/or hardware can be evaluated. 3. Conditions The termination of the License Agreement, or of the license granted therein, shall automatically result in the termination of this Agreement. VENDOR MAKES NO WARRANTY, EXPRESS OR IMPLIED, INCLUDING THE WARRANTY OF MERCHANTABILITY OR WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE, OF ANY KIND WHATSOEVER, AND ALL SUCH WARRANTIES ARE HEREBY EXCLUDED BY VENDOR AND WAIVED BY CITY. VENDOR SHALL HAVE NO LIABILITY WITH RESPECT TO ITS OBLIGATIONS UNDER THIS AGREEMENT OR OTHERWISE FOR CONSEQUENTIAL, EXEM- PLARY, INCIDENTAL OR PUNITIVE DAMAGES EVEN IF IT HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN ANY EVENT VENDOR'S MAXIMUM LIABILITY TO CITY HEREUNDER SHALL BE LIMITED TO THE AMOUNTS ACTUALLY PAID BY CITY TO VENDOR HEREUNDER DURING THE IMMEDIATELY PRECEDING TWELVE MONTHS. 4. Confidentiality Vendor acknowledges that in the course of providing the Maintenance Services, or other services provided hereunder, Vendor, or its employees or consultants, may be supplied with or come into possession of information which is proprietary to City including information as to City's methods of doing business or operations. Vendor hereby agrees that it will keep all such information confidential, and will disclose such information to no other person. In addition, Vendor agrees to take such action as may be necessary or appropriate by way of agreement with, and instruction to, its employees so as to maintain the confidentiality of such information of City. Inquiries regarding Vendor Software, Services, and Documentation shall be subject to the Georgia Open Records Act as specified in the Software and Services Agreement. 5. Vendor Contact The primary contact person shall be within the Augusta IT Department, and will be responsible for collecting user questions and problems and directing them to EarthChannel technical support department for resolution. 6. Vendor Online Support City shall provide access to City's network and Vendor Software servers through an Internet connection provided that the Vendor has signed and complied with the Vendor Access Agreement which is included in the Software and Services Agreement. 7. Precedence of Agreements To the extent that there is a conflict between this agreement and the Software and Services Agreement, the latter shall be considered to have precedence over this agreement. 8. Maintenance Fees During the term commencing on the Acceptance Date, as defined in the License Agreement, and continuing as long as all software maintenance agreement fees are current, Vendor shall provide the Maintenance Services to City for a fee payable annually on each Anniversary Date of the Go -Live of the Vendor solution. At least thirty (30) days prior to each Anniversary Date Vendor shall notify City of the yearly maintenance fee to be charged by Vendor for the next succeeding year, whereupon, unless City notifies Vendor in writing that this Agreement shall terminate on the Anniversary Date, this Agreement shall be extended and renewed for an additional period of one year at the fee so specified by Vendor. The cost of the software maintenance contract is based on the type and number of modules /options installed. Fees shall increase at no more than 2.5% per year if there are no additional license and/or module purchases by the City. License and/or Module purchases that occur within a maintenance period shall be pro -rated for the remainder of the maintenance period, and shall be included in full on the following year's maintenance cost. The initial maintenance fee that City shall be expected to pay, one year after the Acceptance Date as specified in the Software and Services Agreement shall be: ed�ta Mtn ebne�ntt /tnneiu1 A� , Basic GTV Service $ 3,995.00 Real-time Indexing (includes Server -Side Recording) $ 4,000.00 Automated Indexing Interface with NovusAgenda $ 1,000.00 In -House Streaming Server as part of service (Note 1) $ 1,800.00 Simulcast Audio Stream Included Dual Servl $ 10,795.00 Note 1: City may determine upon review of usage reports that this is not worthwhile, and may discontinue service without penalty at any time. Additionally, City shall either be 1) refunded a pro -rated amount of the cost of this service based on the number of months actually used, or 2) the amount shall be reduced from the following year's service /maintenance cost. In the event that the City discontinues service, then the City shall be responsible for shipping costs associated with the return of any equipment to EarthChannel. Note 2: The City shall purchase an encoder for use with this project/service. EarthChannel agrees to grant the City two years of "cross ship warranty" for this equipment (valued at $500 per year) at no charge to the City. In year 3 of the agreement, this shall increase to $500 provided that the City is using the equipment that it purchased. FOR CITY: FOR VENDOR: \� By: �� By: Printed: Deke Copen aver Printed: Cliff JohAson P Title: Mayor Title: CEO, EarthChannel Communications Date: Date: t �!) Attest: Date: