HomeMy WebLinkAboutExhibit 5Exhibit D
Maintenance and Support Agreement
These are the Maintenance and Support Terms and Conditions in connection with the certain contract
between Motorola Inc. / Printrak ("Seller"), having a place of business at 6000 Spine Road, Boulder, CO
80301 and the City of Miami, a municipal corporation of the State of Florida ("Customer") for the
installation of Computer Aided Dispatch System ("CAD"), a Law Records Management System ("RMS" or
"LRMS"), a Premier Mobile Data Communications System ("PMDC"), and a Field Based Reporting
("FBR") system;
Section 1 EXHIBITS
The Exhibits listed below are incorporated into and made a part of this Agreement. In interpreting this
Agreement and resolving any ambiguities, the main body of this Agreement will take precedence over the
Exhibits and any inconsistency between the Exhibits will be resolved in the order in which they are listed
below.
Exhibit A
Exhibit B
Exhibit C
"Description of Covered Products"
"Support Plan"
"Support Plan Options and Pricing Worksheet"
Section 2 DEFINITIONS
"Days" or "day" to mean Business Days which refers to Contractor and City's work days of Monday
through Friday excluding holidays observed by each entity, unless otherwise specified herein.
"Equipment" means the physical hardware purchased by Customer from Seller pursuant to a separate
System Agreement, Products Agreement, or other form of agreement.
"Motorola" means Motorola, Inc., a Delaware corporation.
"Motorola Software" means Software that Motorola or Printrak owns. The term includes Product
Releases, Standard Releases, and Supplemental Releases.
"Non -Motorola Software" means Software that a party other than Motorola or Printrak owns.
"Optional Technical Support Services" means fee -based technical support services that are not covered
as part of the standard Technical Support Services.
"Principal Period of Maintenance" or "PPM" means the specified calendar or business days, and times
during the days, that maintenance and support services will be provided under this Agreement. The PPM
selected by Customer is indicated in the Support Plan Options and Pricing Worksheet.
"Printrak" means Printrak International Incorporated, a Motorola company.
"Products" means the Equipment (if applicable as indicated in the Description of Covered Products) and
Software provided by Seller.
"Releases" means an Update or Upgrade to the Motorola Software and are characterized as
"Supplemental Releases," "Standard Releases," or "Product Releases." A "Supplemental Release" is
defined as a minor release of Motorola Software that contains primarily error corrections to an existing
Standard Release and may contain limited improvements that do not affect the overall structure of the
Motorola Software. Depending on Customer's specific configuration, a Supplemental Release might not
be applicable. Supplemental Releases are identified by the third digit of the three -digit release number,
shown here as underlined: "1.2.3". A "Standard Release" is defined as a major release of Motorola
Software that contains product enhancements and improvements, such as new databases, modifications
to databases, or new servers. A Standard Release may involve file and database conversions, System
configuration changes, hardware changes, additional training, on -site installation, and System downtime.
Standard Releases are identified by the second digit of the three -digit release number, shown here as
underlined: "1.2.3". A "Product Release" is defined as a major release of Motorola Software considered
to be the next generation of an existing product or a new product offering. Product Releases are
identified by the first digit of the three -digit release number, shown here as underlined: "1.2.3". If a
question arises as to whether a Product offering is a Standard Release or a Product Release, Motorola's
opinion will prevail, provided that Motorola treats the Product offering as a new Product or feature for its
end user customers generally
"Residual Error" means a software malfunction or a programming, coding, or syntax error that causes the
Software to fail to conform to the Specifications.
"Services" means those maintenance and support services described in the Support Plan and provided
under this Agreement.
"Software" means the Motorola Software and Non -Motorola Software that is furnished with the System or
Equipment.
"Specifications" means the design, form, functionality, or performance requirements described in
published descriptions of the Software, and if also applicable, in any modifications to the published
specifications as expressly agreed to in writing by the parties.
"Standard Business Day" means Monday through Friday, 8:00 a.m. to 5:00 p.m. local time, excluding
established Motorola holidays.
"Standard Business Hour" means a sixty (60) minute period of time within a Standard Business Day(s).
"Start Date" means the date upon which this Agreement begins. The Start Date is specified in the
Support Plan Options and Pricing Worksheet.
"System" means the Products and services provided by Seller as a system as more fully described in the
Technical and Implementation Documents attached as exhibits to a System Agreement between
Customer and Seller (or Motorola).
"Technical Support Services" means the remote telephonic support provided by Seller on a standard and
centralized basis concerning the Products, including diagnostic services and troubleshooting to assist
Customer in ascertaining the nature of a problem being experienced by the Customer, minor assistance
concerning the use of the Software (including advising or assisting the Customer in attempting
data/database recovery, database set up, client -server advice), and assistance or advice on installation of
Releases provided under this Agreement.
"Update" means a Supplemental Release or a Standard Release.
"Upgrade" means a Product Release.
Section 3 SCOPE AND TERM OF SERVICES
3.1. In accordance with the provisions of this Agreement and in consideration of the payment by
Customer of the price for the Services, Seller will provide to Customer the Services in accordance with
Customer's selections as indicated in the Support Plan Options and Pricing Worksheet, and such
Services will apply only to the Products described in the Description of Covered Products.
3.2. Unless the Support Plan Options and Pricing Worksheet expressly provides to the contrary, the
term of this Agreement is one (1) year, beginning on the Start Date. This annual maintenance and
support period will automatically renew upon the anniversary date for successive one (1) year periods
unless either party notifies the other of its intention to not renew the Agreement (in whole or part) not less
than twenty-two (22) days before the anniversary date or this Agreement is terminated for default by a
party.
3.3. This Agreement covers all copies of the specified Software listed in the Description of Covered
Products that are licensed by Seller to Customer. If the price for Services is based upon a per unit fee,
such price will be calculated on the total number of units of the Software that are licensed to Customer as
of the beginning of the annual maintenance and support period. If, during an annual maintenance and
support period, Customer acquires additional units of the Software that is covered by this Agreement, the
price for maintenance and support services for those additional units will be calculated and added to the
total price either (1) if and when the annual maintenance and support period is renewed or (2)
immediately when Customer acquires the additional units, as Motorola determines. Seller may adjust the
price of the maintenance and support services effective as of a renewal if it provides to Customer notice
of the price adjustment at least thirty-two (32) days before the expiration of the annual maintenance and
support period. If Customer notifies Seller of its intention not to renew this Agreement as permitted by
Section 3.2 and later wishes to reinstate this Agreement, it may do so with Seller's consent provided (a)
Customer pays to Seller the amount that it would have paid if Customer had kept this Agreement current,
(b) Customer ensures that all applicable Equipment is in good operating conditions at the time of
reinstatement, and (c) all copies of the specified Software listed in the Description of Covered Products
are covered.
3.4. When Seller performs Services at the location of installed Products, Customer agrees to provide
to Seller, at no charge, a non -hazardous environment for work with shelter, heat, light, and power, and
with full and free access to the covered Products. Customer will provide all information pertaining to the
hardware and software with which the Products are interfacing to enable Seller to perform its obligations
under this Agreement.
3.5. All Customer requests for covered Services will be made initially with the call intake center
identified in the Support Plan Options and Pricing Worksheet.
3.6. Seller will provide to Customer Technical Support Services and Releases as follows:
3.6.1. Seller will provide unlimited Technical Support Services and correction of Residual Errors
during the PPM in accordance with the exhibits. The level of Technical Support depends upon the
Customer's selection as indicated in the Support Plan Options and Pricing Worksheet. Any Technical
Support Services that are performed by Seller outside the -contracted PPM and any Residual Error
corrections that are outside the scope shall be billed at the then current hourly rates. Technical Support
Services will be to investigate specifics about the functioning of covered Products to determine whether
there is a defect in the Product and will not be used in lieu of training on the covered Products.
3.6.2. Seller will provide to Customer without additional license fees an available Supplemental
or Standard Release after receipt of a request from Customer, but Customer must pay for any installation
or other services (other than base installation services), training, and any necessary Equipment or third
party hardware or software provided by Seller in connection with such Supplemental or Standard
Release. Base installation services are limited to the physical installation of the Standard Release on
Customer's application server and workstations, excluding remote workstations. Any services will be
performed in accordance with a mutually agreed schedule. Seller's duty as described in this paragraph is
contingent upon Customer's then -current installation at the time of Customer's request being within two
(2) Standard Release versions of the new Standard Release available for general release.
3.6.3. Seller will provide to Customer an available Product Release after receipt of a request
from Customer, but Customer must pay for all additional license fees, any installation or other services,
and any necessary Equipment provided by Seller in connection with such Product Release. Any services
will be performed in accordance with a mutually agreed schedule.
3.6.4. Seller does not warrant that a Release will meet Customer's particular requirement,
operate in the combinations that Customer will select for use, be uninterrupted or error -free, be backward
compatible, or that all errors will be corrected. Full compatibility of a Release with the capabilities and
functions of earlier versions of the Software may not be technically feasible. If it is technically feasible,
services to integrate these capabilities and functions to the updated or upgraded version of the Software
may be purchased at Customer's request on a time and materials basis at Seller's then current rates for
professional services.
3.6.5. Except as provided in Section 3.6.6, Sellers responsibilities under this Agreement to
provide Technical Support Services shall be limited to the current Standard Release plus the two (2) prior
Standard Releases (collectively referred to in this section as "Covered Standard Releases.").
Notwithstanding the preceding sentence, Seller will provide Technical Support Services for a Severity
Level 1 or 2 error concerning a Standard Release that precedes the Covered Standard Releases unless
such error has been corrected by a Covered Standard Release (in which case Customer shall install the
Standard Release that fixes the reported error or terminate this Agreement as to the applicable Software).
3.6.6. Seller's responsibilities under this Agreement to provide Technical Support Services shall
be limited to the current Standard Release concerning the following Software: Customer Service Request,
Case Management, Integration Framework, and Integration Framework Express.
3.7. The maintenance and support Services described in this Agreement are the only covered
services. Unless Optional Technical Support Services are purchased, these Services specifically exclude
and Seller shall not be responsible for:
3.7.1. Any service work required due to incorrect or faulty operational conditions, including but
not limited to Equipment not connected directly to an electric surge protector, or not properly maintained
in accordance with the manufacturer's guidelines.
3.7.2. The repair or replacement of Products or parts resulting from failure of the Customer's
facilities, Customer's personal property and/or devices connected to the System (or interconnected to
devices) whether or not installed by Seller's representatives.
3.7.3. The repair or replacement of Equipment that has become defective or damaged due to
physical or chemical misuse or abuse, Customer's negligence, or from causes such as lightning, power
surges, or liquids.
3.7.4. Any transmission medium, such as telephone lines, computer networks, or the worldwide
web, or for Equipment malfunction caused by such transmission medium.
3.7.5. Accessories, custom or Special Products; modified units; or modified Software.
3.7.6. The repair or replacement of parts resulting from the tampering by persons unauthorized
by Seller or the failure of the System due to extraordinary uses.
3.7.7. Operation and/or functionality of Customer's personal property, equipment, and/or
peripherals and any application software not provided by Seller.
3.7.8. Services for any replacement of Products or parts directly related to the removal,
relocation, or reinstallation of the System or any System component.
3.7.9. Services to diagnose technical issues caused by the installation of unauthorized
components or misuse of the System.
3.7.10 Services to diagnose malfunctions or inoperability of the Software caused by changes,
additions, enhancements, or modifications in the Customer's platform or in the Software.
3.7.11 Services to correct errors found to be caused by Customer -supplied data, machines, or
operator failure.
3.7.12. Operational supplies, including but not limited to, printer paper, printer ribbons, toner,
photographic paper, magnetic tapes and any supplies in addition to that delivered with the System;
battery replacement for uninterruptible power supply (UPS); office furniture including chairs or
workstations.
3.7.13. Third -party software unless specifically listed on the Description of Covered Products.
3.7.14. Support of any interface(s) beyond Seller -provided port or cable, or any services that are
necessary because third party hardware, software or supplies fail to conform to the specifications
concerning the Products.
3.7.15. Services related to customer's failure to back up its data or failure to use an UPS system
to protect against power interruptions.
3.7.16. Any design consultation such as, but not limited to, configuration analysis, consultation
with Customer's third -party provider(s), and System analysis for modifications or Upgrades or Updates
which are not directly related to a Residual Error report.
3.8. The Customer hereby agrees to:
3.8.1. Maintain any and all electrical and physical environments in accordance with the System
manufacturer's specifications.
3.8.2. Provide standard industry precautions (e.g. back-up files) ensuring database security, per
Seller's recommended backup procedures.
3.8.3. Ensure System accessibility, which includes physical access to buildings as well as remote
electronic access. Remote access can be stipulated and scheduled with customer; however, remote
access is required and will not be substituted with on -site visits if access is not allowed or available.
3.8,4. Appoint one or more qualified employees to perform System Administration duties,
including acting as a primary point of contact to Seller's Customer Support organization for reporting and
verifying problems, and performing System backup. At least one member of the System Administrators
group should have completed Seller's End -User training and System Administrator training (if available).
The combined skills of this System Administrators group should include proficiency with: the Products, the
system platform upon which the Products operate, the operating system, database administration,
network capabilities such as backing up, updating, adding, and deleting System and user information, and
the client, server and stand alone personal computer hardware. The System Administrator shall follow
the Residual Error reporting process described herein and make all reasonable efforts to duplicate and
verify problems and assign a Severity Level according to definitions provided herein. Customer agrees to
use reasonable efforts to ensure that all problems are reported and verified by the System Administrator
before reporting them to Seller. Customer shall assist Seller in determining that errors are not the product
of the operation of an external system, data links between system, or network administration issues. If a
Severity Level 1 or 2 Residual Error occurs, any Customer representative may contact Seller's Customer
Support Center by telephone, but the System Administrator must follow up with Seller's Customer
Support as soon as practical thereafter.
3.9. In performing repairs under this Agreement, Seller may use parts that are not newly
manufactured but which are warranted to be equivalent to new in performance. Parts replaced by Seller
shall become Seller's property. _
3.10 Customer shall permit and cooperate with Seller so that Seller may periodically conduct audits of
Customer's records and operations pertinent to the Services, Products, and usage of application and data
base management software. If the results of any such audit indicate that price has been understated,
Seller may correct the price and immediately invoice Customer for the difference (as well as any unpaid
but owing license fees). Seller will limit the number of audits to no more than one (1) per year except
Seller may conduct quarterly audits if a prior audit indicated the price had been understated.
3.11. If Customer replaces, upgrades, or modifies equipment, or replaces, upgrades, or modifies
hardware or software that interfaces with the covered Products, Seller will have the right to adjust the
price for the Services to the appropriate current price for the new configuration.
3.12 Customer shall agree not to attempt or apply any update(s), alteration(s), or change(s) to the
database software without the prior approval of the Seller.
Section 4. RIGHT TO SUBCONTRACT AND ASSIGN
Seller may assign its rights and obligations under this Agreement and may subcontract any portion of
Seller's performance called for by this Agreement.
Section 5. PRICING, PAYMENT AND TERMS
5.1 Prices in United States dollars are shown in the Support Plan Options and Pricing Worksheet.
Unless this exhibit expressly provides to the contrary, the price is payable annually in advance. Seller will
provide to Customer an invoice, and Customer will make payments to Seller within twenty-two (22) days
after the date of each invoice. During the term of this Agreement, Customer will make payments when
due in the form of a check, cashier's check, or wire transfer drawn on a United States financial institution.
5.2. Overdue invoices will bear simple interest at the rate of ten percent (10%) per annum, unless
such rate exceeds the maximum allowed by law, in which case it will be reduced to the maximum
allowable rate.
5.3 if Customer requests, Seller may provide services outside the scope of this Agreement or after
the termination or expiration of this Agreement and Customer agrees to pay for those services. These
terms and conditions and the prices in effect at the time such services are rendered will apply to those
services.
5.4 Price(s) are exclusive of any taxes, duties, export or customs fees, including Value Added Tax or
any other similar assessments imposed upon Seller. if such charges are imposed upon Seller, Customer
shall reimburse Seller upon receipt of proper documentation of such assessments.
Section 6. LIMITATION OF LIABILITY
This limitation of liability provision shall apply notwithstanding any contrary provision in this
Agreement. Except for personal injury or death, Seller's (including any of its affiliated companies)
total liability arising from this Agreement will be limited to the direct damages recoverable under
law, but not to exceed the price of the maintenance and support services being provided for one
(1) year under this Agreement. ALTHOUGH THE PARTIES ACKNOWLEDGE THE POSSIBILITY OF
SUCH LOSSES OR DAMAGES, THEY AGREE THAT SELLER (INCLUDING ANY OF ITS AFFILIATED
COMPANIES) WILL NOT BE LIABLE FOR ANY COMMERCIAL LOSS; INCONVENIENCE; LOSS OF
USE, TIME, DATA, GOOD WILL, REVENUES, PROFITS OR SAVINGS; OR OTHER SPECIAL,
INCIDENTAL, INDIRECT, OR CONSEQUENTIAL DAMAGES IN ANY WAY RELATED TO OR
ARISING FROM THIS AGREEMENT, THE SALE OR USE OF THE SYSTEM, EQUIPMENT OR
SOFTWARE, OR THE PERFORMANCE OF SERVICES BY SELLER PURSUANT TO THIS
AGREEMENT. This limitation of liability will survive the expiration or termination of this
Agreement. No action for breach of this Agreement or otherwise relating to the transactions
contemplated by this Agreement may be brought more than one (1) year after the accrual of such
cause of action, except for money due upon an open account.
Section 7. DEFAULT/TERMINATION
7.1. If Motorola breaches a material obligation under this Agreement (unless Customer or a Force
Majeure causes such failure of performance), Customer may consider Motorola to be in default, If
Customer asserts a default, it will give Motorola written and detailed notice of the default. Motorola will
have thirty (30) days thereafter either to dispute the assertion or provide a written plan to cure the default
that is acceptable to Customer. If Motorola provides a cure plan, it will begin implementing the cure plan
immediately after receipt of Customer's approval of the plan.
7.2. If Customer breaches a material obligation under this Agreement (unless Motorola or a Force
Majeure causes such failure of performance); if Customer breaches a material obligation under the
Software License Agreement that governs the Software covered by this Agreement; or if Customer fails to
pay any amount when due under this Agreement, indicates that it is unable to pay any amount when due,
indicates it is unable to pay its debts generally as they become due, files a voluntary petition under
bankruptcy law, or fails to have dismissed within ninety (90) days any involuntary petition under
bankruptcy law, Motorola may consider Customer to be in default. If Motorola asserts a default, it will give
Customer written and detailed notice of the default and Customer will have thirty (30) days thereafter to (I)
dispute the assertion, (ii) cure any monetary default (including interest), or (Ili) provide a written plan to
cure the default that is acceptable to Motorola. If Customer provides a cure plan, it will begin
implementing the cure plan immediately after receipt of Motorola's approval of the plan.
7.3. If a defaulting party fails to cure the default as provided above in Sections 7.1 or 7.2, unless
otherwise agreed in writing, the non -defaulting party may terminate any unfulfilled portion of this
Agreement and may pursue any legal or equitable remedies available to it subject to the provisions of
Section 6 above.
7.4. Upon the expiration or earlier termination of this Agreement, Customer and Seller shall
immediately deliver to the other Party, as the disclosing Party, all Confidential Information of the other,
including all copies thereof, which the other Party previously provided to it in furtherance of this
Agreement. Confidential Information shall include: (a) proprietary materials and information regarding
technical plans; (b) any and all other information, of whatever type and in whatever medium including
data, developments, trade secrets and improvements, that is disclosed by Seller to Customer in
connection with this Agreement; (c) all geographic information system, address, telephone, or like records
and data provided by Customer to Seller in connection with this Agreement that is required by law to be
held confidential.
Section 8. GENERAL TERMS AND CONDITIONS
8.1. Notices required under this Agreement to be given by one party to the other must be in writing
and either delivered in person or sent to the address shown below by certified mail, return receipt
requested and postage prepaid (or by a recognized courier service), or by facsimile with correct
answerback received, and shall be effective upon receipt.
Customer: Seller
Attn: Attn: Contracts & Compliance Manager
6000 Spine Road
Boulder, CO 80301
Fax: 303-527-4226
8.2. Neither party will be liable for its non-performance or delayed performance if caused by an event,
circumstance, or act of a third party that is beyond such party's reasonable control.
8.3. Failure or delay by either party 10 exercise any right or power under this Agreement will not
operate as a waiver of such right or power. For a waiver to be effective, it must be in writing signed by
the waiving party. An effective waiver of a right or power shall not be construed as either a future or
continuing waiver of that same right or power, or the waiver of any other right or power.
8.4. Customer may not assign any of its rights under This Agreement without Motorola's prior written
consent.
8.5. This Agreement, including the exhibits, constitutes the entire agreement of the parties regarding
the covered maintenance and support services and supersedes all prior and concurrent agreements and
understandings, whether written or oral, related to the services performed. Neither this Agreement nor
the Exhibits may not be altered, amended, or modified except by a written agreement signed by
authorized representatives of both parties. Customer agrees to reference this Agreement on all
purchase orders issued in furtherance of this Agreement. Neither party will be bound by any terms
contained in Customer's purchase orders, acknowledgements, or other writings (even if attached to this
Agreement).
8.6. This Agreement will be governed by the laws of the United States to the extent that they apply
and otherwise by the laws of the State to which the Products are shipped if Licensee is a sovereign
government entity, or the laws of the State of Illinois if Licensee is not a sovereign government entity.
Section 9. CERTIFICATION DISCLAIMER
Seller specifically disclaims all certifications regarding the manner in which Seller conducts its business or
performs its obligations under this Agreement, unless such certifications have been expressly accepted
and signed by an authorized signatory of Seller.
Section 10. COMPLIANCE WITH APPLICABLE LAWS
The Parties shall at all times comply with all applicable regulations, licenses and orders of their respective
countries relating to or in any way affecting this Agreement and the performance by the Parties of this
Agreement. Each Party, at its own expense, shall obtain any approval or permit required in the
performance of its obligations. Neither Seller nor any of its employees is an agent or representative of
Customer