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Home My WebLink AboutSoftware Maintenance Agreement Augusta Richmond GA DOCUMENT NAME: M-h;u~ fV'CI.l~ QnClL :1feuY"\er* w'Wh ~d€-, ~~~n~er\rxo ~~. DOCUMENT TYPE: ~~,~ YEAR: ~~ BOX NUMBER: <:6 FILE NUMBER: \ L\ ~3.~ NUMBER OF PAGES: ~ f ,. ~ ' Client Ref: Augusta Richmond County SOFTW ARE MAINTENANCE AGREEMENT THIS AGREEMENT made as of the 30 day of September. 19---2.2, by and between: Bender Engineering, Inc. with its place of business at at 3535 Farquhar Avenue, Los Alamitos, California, U.S.A. 90720 ("Bender Engineering"), and Augusta, Georgia, a political subdivision of the State of Georgia, with its place of business at 530 Greene Street, Augusta, Georgia, U.S.A., 30911 ("Licensee"). WHEREAS Bender Engineering is the owner of the rights to certain software as identified in Exhibit A (collectively the "Software"), including copyright, trademark, trade secret and other intellectual property rights; WHEREAS Licensee and Bender Engineering have entered into a software license agreement dated the 30 day of September, 1999, enabling Licensee to use the Software on the terms specified therein (the "License Agreement"); AND WHEREAS Licensee is desirous of participating in Bender Engineering's annual maintenance program for the Software; NOW THEREFORE, in consideration of the covenants, conditions and agreements herein contained, the parties agree as follows: I. In consideration of payments to be made by Licensee to Bender Engineering as set out below, Bender Engineering agrees to provide the following software maintenance services during the term of this Agreement: (a) Bender Engineering will maintain the Software so that it operates in conformity in all material respects in with the descriptions and specification for the Software set forth in the Documentation referred to, and as defined in, the License Agreement. (b) In the event that Licensee detects any errors or defects in the Software, Bender Engineering will provide reasonable telephone support, in the form of assistance and advice on the use and maintenance of the Software, during Bender Engineering's hours of support (9am - 8pm EST, 5 days a week) (c) Bender Engineering will send Licensee mailings on Upgrades and New Products of the Software to the Licensee's address specified above. "Upgrades" are those enhancements to the Software that Bender Engineering generally makes available as part of the annual maintenance program. A "New Product" is any update, new feature or major enhancement to the Software that Bender Engineering markets and licenses for additional fees separately from Upgrades. (d) At Licensee's request, Bender Engineering shall provide Licensee with Upgrades of the Software at no additional charge. Licensee shall be entitled to acquire a license to New Products for Bender Engineering's then prevailing license fees. Software Upgrades and New Products will be sent on three and a half (3 1/2) inch diskettes or CO's with explanations, instructions ,and updated documentation where appropriate. Bender Engineering will also make other installation developments, such as reports, interfaces, etc., available to Licensee if they are appropriate for possible use by Licensee. 2. Maintenance services shall not include, and Licensee shall pay extra for, any and all consulting, implementation, customization, education and training related services subject to the availability of Bender Engineering's staff, except as provided inthe Software Licensing Agreement dated September 30, 1999. 3. Licensee shall pay an annual maintenance fee to Bender Engineering as provided in Exhibit A. This fee shall be subject to change as set out in Exhibit A. Page I 0 f 4 !S.Nov.99 Bender Engineering 'r' '" ~ 4. Licensee agrees that all materials, documentation, Upgrades, New Products, and other materials provided to Licensee pursuant to this Agreement shall be subject to the same conditions and rights of use as apply to the Software under the License Agreement 5. Licensee shall, at Bender Engineering's request, provide Bender Engineering with the right of dial-access to Licensee's computers on which the Software is installed, so as to enable Bender Engineering to monitor the operation of the Software. 6. Bender Engineering will invoice Licensee for services (including installation, customization, training and additional services) and related expenses on a monthly basis for such services performed and related expenses incurred during each month. In addition to the fees payable by Licensee to Bender Engineering, all taxes and other levies, including sales and use taxes (but excluding taxes based on the net income of Bender Engineering resulting from this Agreement) shall be the responsibility of the Licensee. If any withholding tax or similar levy is applicable to the fees or other amounts payable to Bender Engineering, Licensee shall pay such additional amount as shall result in Bender Engineering receiving the total amount of the fees or other amounts it would have been paid but for such tax or levy. 7. The parties hereto acknowledge that information obtained about the other party pursuant to this Agreement includes confidential and proprietary information (hereinafter the "Confidential Information"). Each party agrees not to disclose Confidential Information to third parties, without the prior written consent of the other party or pursuant to Court order. The parties agree that the Confidential Information does not include any information which, at the time of disclosure, is generally known by the public. Bender Engineering acknowledges that this Agreement and certain documentation may be subject to the Georgia Open Records Act (O.c.G .A. S 50-18-70, et seq. Bender Engineering shall cooperate fully in responding to such request and shall make all records, not exempt, available for inspection and copying as required by law. 8. The initial term of this Agreement shall be for a period of one (I) year following the expiry of the warranty period set out in the License Agreement, and it shall be automatically renewed as long as Licensee remains licensed by Bender Engineering to use the Software, unless earlier canceled in writing by either party at any time upon 90 days written notice. If a software maintenance agreement is not initiated immediately after the warranty period, canceled or not renewed annually, there will be costs associated with software reconciliation with the issuance and a new software maintenance agreement 9. (a) This Agreement shall terminate if the License Agreement is terminated by Bender Engineering or Licensee. (b) Either party has the right to terminate this Agreement if the other party breaches or is in default of any obligation hereunder, and ifsuch default has not been cured within fifteen (15) days after receipt of notice of such default (c) Either party may terminate this Agreement by written notice if the other party becomes insolvent or bankrupt (d) The obligations of each party pertaining to Confidential Information and taxes shall survive the termination of this Agreement 10. Neither party.to this Agreement shall be liable to the other party hereto for loss or damage arising out of any delay or failure by such party in performing its obligations hereunder, if such delay or failure was the unavoidable consequence of a natural disaster, exercise of governmental power, strike or other labour disturbance, war, revolution, embargo, insurrection, operation of military forces, or other event or condition beyond the control of such party; provided that such party notifies the other party of its inability to perform and the reasons therefor, with reasonable promptness; and performs its obligations hereunder as soon as circumstances permit Page 2 of 4 15-Nov-99 Bender Engineering 'I II. This Agreement, or any of the rights or obligations of Bender Engineering created herein, may not be assigned by Bender Engineering without Licensee's consent, which consent shall not be unreasonably be withheld, but this Agreement is for the sole benefit of Licensee and may not be assigned by Licensee without t the express written consent of Bender Engineering. 12. Licensee acknowledges having read and understood this Agreement and agrees to be bound by its terms and conditions. Licensee also agrees that this Agreement, together with the relevant terms and conditions of the contract(s) between Bender Engineering and Licensee as identified in the License Agreement, represents the complete and exclusive agreement between the parties with respect to the subject matter hereof and supersedes all prior agreements, negotiations, discussions or understandings between them in any way relating thereto. No other terms, conditions, representations, warranties or guarantees, whether written or oral, express or implied, shall form a part hereof or have any legal effect whatsoever. In the event of any conflict or inconsistency between the provisions of this Agreement and the provisions of the contract(s) identified in the License Agreement, the latter provisions shall be of no force and effect and the provisions of this Agreement shall govern. This Agreement shall not be modified except by later written agreement signed by both parties. 13. This Agreement shall be govemed by and construed in accordance with the laws of the State of Georgia, U.S.A. All claims, disputes and other matters in question between Licensee and Bender Engineering arising out of, or relating to, this Agreement, or the breach thereof, shall be decided in the Superior Court of . Richmond County, Georgia. Bender Engineering, 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. 14. All notices hereunder shall be in writing and shall be duly given if delivered personally or sent by registered or certified mail, return receipt requested, postage prepaid, to the respective addresses of the parties appearing onpage one of this Agreement. Any notice given shall be deemed to have been received on the date, which it is delivered if delivered personally, or, if mailed, on the fifth business day next following the mailing thereof. Either party may change its address for notices by giving notice of such change as required in this Section 14. IN WITNESS WHEREOF, this Agreement has been read, understood, and signed by duly authorized officials of Bender Engineering and Licensee. By: IJ D. poji-fJ~ IIfJlt;'t~TrlJ;/J IY1/Jl/1~ By: BENDER ENGINEERING: Name: Name: Title: Title: !'1,; rI L. W:.\t~~ \\ t" ~ Page 3 of 4 !5.Nov.99 Bender Engineering " '"'; EXHIBIT A (Software Maintenance Agreement) Item Licensed Product Initial License Annual Maintenance Maintenance Fee Fee* Start Date 1. BENDER ENGINEERING $22,395 $ 3,359 11/20/1999 TOTAL $ 22,395 $ 3,359 * First year maintenance fee only. Subsequent years are renewable annually at the support anniversary date. Annual Long-Term Support fees will be based on the then current support percentage for the product multiplied by the then current value of the License Fee, not to exceed Seventeen Percent (I 7%). Title: M V" /J {;/?IV Title: ~k M~ tJ ~ (It ~ wAl By: By: Name: Name: Page 4 of 4 15-Nov-99 Bender Engineering