SUPPORT AND MAINTENANCE AGREEMENT
THIS AGREEMENT made as of the19th day of October, 2023.
BETWEEN:
N. HARRIS COMPUTER CORPORATION
(“Harris”)
- and –
THE CITY OF VERNON
(“Organization”)
RECITALS
1. Harris has licensed to Organization certain Software pursuant to a Software License Agreement;
2. The Organization wishes to receive support and maintenance services related to the Software; and
3. Harris shall provide the support and maintenance services related to the Software.
NOW THEREFORE, in consideration of the mutual covenants set out in this support and maintenance agreement (the “Support and Maintenance Agreement”) and for other good and valuable consideration (the receipt and sufficiency of which is hereby acknowledged), the parties agree as follows:
1. Defined terms:
(1) “Release” means an Update and an Upgrade.
(2) “Software” means the software products that are listed in Exhibit 1 and includes any Update(s) or Upgrade(s) that have been provided to Organization. Third Party Software is not included in the definition of Software except where this License Agreement explicitly states otherwise. (3) “Update” means any published changes, additions or corrections to the Software that primarily include a minor modification or enhancement to the Software related to a bug fix, minor additional functionality or legislative changes. An Update is designated by a change in the right-most digit in the version number (for example, a change from X.1 to X.2). (4) “Upgrade” means a major overhaul of the Software which is a complete new published version of the Software that modifies, revises or alters the Software and adds features, functionality or enhancements to such Software. An Upgrade is designated by a change in the number to the left of the decimal point in the version number (for example, a change from 1.X to 2.X.
DocuSign Envelope ID: 2D348240-C605-4261-AAEC-2F9FD4588BAE
2. This Support and Maintenance Agreement is the exclusive statement of the entire support and maintenance agreement between Harris and Organization.
3. Harris shall provide software support primarily via telephone and electronic mail in addition to site visits only when necessary. The support services will be provided only during the hours of operation as described in Exhibit 2 hereto and which are in effect as of the Start Date (July 1, 2023), as such services may, at Harris’s sole discretion, be modified orsupplemented from time to time. To enable Harristo provide effective support, the Organization will establish auto remote access procedures compatible with Harris’s then current practices which may be revised over time.
4. This Support and Maintenance Agreement becomes effective from the date hereof.
5. In consideration for the support services specified in Section 2, Organization shall pay the “Support and Maintenance Fee” as detailed in Exhibit 1 below. The Support and Maintenance Fee will be billed annually in advance each year of the Term (including any renewals or extensions) beginning on the Start Date and thereafter on the anniversary of the Start Date or on an alternative date mutually agreed to by both parties. Harris may change the Support and Maintenance Fee from time to time on each one-year anniversary of the Agreement during its Term (including any renewal terms) but Organization shall only be billed once per year. It is specifically understood that, due to certain complications and circumstances, the invoice for the July 1, 2023 to June 30, 2024 annual fee has not be paid as of the making of this Agreement, but that Harris will waive any additional fees or remedies for non-payment so long as the invoice is paid on or before October 30, 2023.
6. In addition to the Support and Maintenance Fee, Organization shall reimburse Harris for its direct expenses in providing support services (“Billable Fees”) pursuant to this Agreement which include:
(i) its direct travel expenses which are excluded from the total fees amount described in the Statement of Work, including, but not limited to reasonable hotel, airfare, car rental, tolls, parking and airline and travel agent fees; (ii) courier services, photocopying, faxing and reproduction, all reasonable travel costs (hotel and airfare) including a travel time rate of $75.00 per hour; (iii) a per diem rate of $70.00 for week days and a $140.00 for weekends and statutory holidays that includes all meal, food and telecommunications expenses (receipts to be provided upon Organization’s request); (iv) a mileage charge based on the current U.S. Internal Revenue Service recommended rate per mile, long distance telephone calls; and (v) all other reasonable expenses incurred in the performance of Harris's duties including courier services and documentation copying or production; and (vi) Any direct expense in excess of $500 must be pre-approved in writing by Organization.
7. Harris may update its reimbursement policies and rates related to the Billable Fees from time to time, in which case such updated policies shall apply for purposes of this Agreement, provided that such updated reimbursement policies must generally apply to all clients of Harris.
8. Harris shall supply all Updates to Organization at no additional charge other DocuSign Envelope ID: 2D348240-C605-4261-AAEC-2F9FD4588BAE than the payment of the Support and Maintenance Fee. Updates and Upgrades may require additional services to be performed by Harris outside of the scope of those services provided by Harris including additional training not covered by any agreement(s) for the installation and implementation of the Update and Upgrades that will be subject to the Harris’s then-prevailing policies, terms and Billable Fees related to pricing and hourly rates. All such services shall be performed subject to a newly negotiated Scope of Work.
9. All Updates of the Software and all those services listed in Exhibit 2 which are included as part of Organization’s Software support will be made available to Organization at no additional charge other than the payment of the Support and Maintenance Fee.
10. All payments hereunder shall be in U.S. dollars and shall be net of any taxes, tariffs or other governmental charges. Harris shall be responsible for paying all taxes, fees, assessments and premiums of any kind payable on its employees and operations. Any tax Harris may be required to collect or pay upon the sale, use or delivery of the support and maintenance services described in this Support and Maintenance Agreement shall be paid by Organization and such sums shall be due and payable to Harris upon receipt of an invoice therefore. Any taxes levied in relation to the services required for a Release shall be paid by Organization. For the sake of clarity, all of the fees listed in this Support and Maintenance Agreement are not inclusive of any applicable taxes: the Organization shall be responsible for the payment of any applicable duties and sales/consumption taxes.
11. The term of this Support and Maintenance Agreement shall be three years.
Organization shall pay the then prevailing Support and Maintenance Fee in advance for each term of the Support and Maintenance Agreement and where the notice of nonrenewal has not been provided in accordance with these terms, the Organization is obliged to pay the Support and Maintenance Fee for the then applicable term; notwithstanding the foregoing, Harris shall not increase annual support and maintenance fees more than Eight (8%) percent in any year. The termination of this Support and Maintenance Agreement by Organization shall not affect the existing license agreement(s). Harris shall neither refund any Support and Maintenance Fees nor any Billable Fees if this Support and Maintenance Agreement is terminated.
Organization acknowledges that if this Support and Maintenance Agreement is terminated, then it will not be eligible to receive the benefits of this Support and Maintenance Agreement including the right to Releases or to access the source code in escrow upon the occurrence of any event of default.
12. Title to and ownership of all proprietary rights in the Releases and all related proprietary information supplied by Harris in providing the services pursuant to this Support and Maintenance Agreement shall at all times remain with Harris, and Organization shall acquire no proprietary rights by virtue of this Support and Maintenance Agreement.
13. Harris shall have the right to terminate this Support and Maintenance Agreement immediately if:
(a) Organization attempts to assign this Support and Maintenance Agreement or any of its rights hereunder without complying with the relevant license DocuSign Envelope ID: 2D348240-C605-4261-AAEC-2F9FD4588BAE agreement; or
(b) Organization has not paid an invoice within ninety (90) days of the start of a renewal term.
14. Unless otherwise agreed to by the parties, all notices required hereunder shall be made in accordance with the provisions of the relevant license agreement.
15. Either party’s lack of enforcement of any provision in this Support and Maintenance Agreement in the event of a breach by the other shall not be construed to be a waiver of any such provision and the non-breaching party may elect to enforce any such provision in the event of any repeated or continuing breach by the other.
16. The parties agree that the terms and conditions contained herein shall prevail notwithstanding any variations on any orders, e-mails or other correspondence submitted by Organization.
17. Proprietary or confidential portions of this Support and Maintenance Agreement shall be deemed confidential in nature and neither Organization nor Harris shall divulge those provisions to any third party except as may be required by law.
18. (a) Termination of this Support and Maintenance Agreement shall not affect any right of action of either party arising from anything which was done or not done, as the case may be, prior to the termination taking effect. (b) The Organization and Harris recognize that circumstances may arise entitling the Organization to damages for breach or other fault on the part of Harris arising from this Support and Maintenance Agreement. The parties agree that in all such circumstances the Organization’s remedies and Harris’s liabilities will be limited as set forth below and that these provisions will survive notwithstanding the termination or other discharge of the obligations of the parties under this Support and Maintenance Agreement.
(c) FOR BREACH OR DEFAULT BY HARRIS OR OTHERWISE IN
CONNECTION WITH THIS SUPPORT AND MAINTENANCE
AGREEMENT, INCLUDING A BREACH OR DEFAULT ENTITLING
THE ORGANIZATION TO RESCIND OR BE DISCHARGED FROM THE
PROVISIONS OF THIS SUPPORT AND MAINTENANCE AGREEMENT,
THE ORGANIZATION’S EXCLUSIVE REMEDY, IN ADDITION TO
ELECTING IF SO ENTITLED TO RESCIND OR BE DISCHARGED
FROM THE PROVISIONS OF THIS SUPPORT AND MAINTENANCE
AGREEMENT, SHALL BE PAYMENT BY HARRIS OF THE
ORGANIZATION’S DIRECT DAMAGES TO A MAXIMUM AMOUNT
EQUAL TO, AND HARRIS SHALL IN NO EVENT BE LIABLE IN
EXCESS OF, THE AMOUNT OF FEES ACTUALLY PAID BY THE
ORGANIZATION TO HARRIS UNDER THIS SUPPORT AND
MAINTENANCE AGREEMENT DURING THE THEN-CURRENT TERM
(NOT TO EXCEED 12 MONTHS) OF THE SUPPORT AND
MAINTENANCE AGREEMENT UP TO AND INCLUDING THE DATE OF
TERMINATION.
(d) IN NO EVENT SHALL ANY DAMAGES INCLUDE, NOR SHALL
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HARRIS BE LIABLE FOR, ANY SPECIAL, INDIRECT OR
CONSEQUENTIAL DAMAGES EVEN IF HARRIS HAS BEEN ADVISED
OF THE POSSIBILITY THEREOF. WITHOUT LIMITING THE
GENERALITY OF THE FOREGOING, HARRIS SHALL NOT BE LIABLE
FOR LOST PROFITS, LOST BUSINESS REVENUE, FAILURE TO
REALIZE EXPECTED SAVINGS, OTHER COMMERCIAL OR
ECONOMIC LOSS OF ANY KIND, OR FOR ANY CLAIM
WHATSOEVER AGAINST THE ORGANIZATION BY ANY OTHER
PARTY.
(e) CLAUSES (i) AND (ii) SHALL APPLY IN RESPECT OF ANY CLAIM,
DEMAND OR ACTION BY THE ORGANIZATION IRRESPECTIVE OF
THE NATURE OF THE CAUSE OF ACTION UNDERLYING SUCH
CLAIM, DEMAND OR ACTION, INCLUDING, BUT NOT LIMITED TO, BREACH OF CONTRACT, RESCISSION OF CONTRACT, OR TORT.
19. The parties hereby confirm that the waivers and disclaimers of liability, releases from liability, limitations and apportionments of liability, and exclusive remedy provisions expressed throughout this Support and Maintenance Agreement shall apply even in the event of default, negligence (in whole or in part), strict liability or breach of contract of the person released or whose liability is waived, disclaimed, limited, apportioned or fixed by such remedy provision, and shall extend to such person’s affiliates and to its shareholders, directors, officers, employees and affiliates.
20. Where remedies are expressly afforded by this Support and Maintenance Agreement, such remedies are intended by the parties to be the sole and exclusive remedies of the Organization for liabilities of the Harris arising out of or in connection with this Support and Maintenance Agreement, notwithstanding any remedy otherwise available at law or in equity.
21. This Agreement shall be governed by the laws of the State of California, without regard to its conflicts of law principles.
22. This Support and Maintenance Agreement may not be assigned by the Organization unless, concurrently with any such assignment, the Organization assigns its rights under, and complies with the provisions of the relevant license agreement.
23. This Support and Maintenance Agreement shall be binding upon the successors and assigns of the parties and enure to the benefit of the successors and permitted assigns of the parties.
24. The invalidity or unenforceability of any provision or covenant contained in this Support and Maintenance Agreement shall not affect the validity or enforceability of any other provision or covenant herein contained and any such invalid provision or covenant shall be deemed to be modified to the extent necessary in order to render such provision valid and enforceable; if such provision may not be so saved, it shall be severed and the remainder of this Agreement shall remain in full force and effect.
25. This Support and Maintenance Agreement may be executed in counterparts (whether by facsimile signature or in PDF format via e-mail or otherwise), each of which when DocuSign Envelope ID: 2D348240-C605-4261-AAEC-2F9FD4588BAE so executed shall constitute an original and all of which together shall constitute one and the same agreement.
IN WITNESS WHEREOF, the Parties have executed this Support and Maintenance Agreement to be effective as of July 1, 2023.
N. HARRIS COMPUTER CORPORATION
Per:
Name:
Title:
THE CITY OF VERNON
Per:
Name:
Title:
ATTEST: ___________________________________
Lisa Pope, City Clerk
Date: _____________________________________
APPROVED AS TO FORM: _____________________
Zaynah N. Moussa, City Atorney
Date: ______________________________________
DocuSign Envelope ID: 2D348240-C605-4261-AAEC-2F9FD4588BAE Yusuf Jiwajee
Senior Director, Client Services
City Administrator
Carlos Fandino
Exhibit 1
Annual Support and Maintenance Fee
Payment Schedule
Jul 1, 2023 – Jun 30, 2024
• CIS Infinity – annual fee…………..…………….……. $52,700.55
DocuSign Envelope ID: 2D348240-C605-4261-AAEC-2F9FD4588BAE Exhibit 2
Standard Support and Maintenance Services – Standard Guidelines The purpose of this Exhibit 2 is to provide our customers with information on our standard coverage, the services which are included as part of your annual software support, a listing of call priorities, an outline of our escalation procedures and other important details.
Harris reserves the right to make modifications to this document as required; provided, however, Harris shall not reduce the scope of support provided hereunder without the prior consent of the Organization.
The services listed below are services that are included as part of your software support. • 800 Toll Free Telephone support
• Software for Life
- Guaranteed Support on your existing applications for life - Scheduled assistance for installations, updates/upgrades and other special projects (there may be charges depending on the scope of work)
• Technical troubleshooting and issue resolution
• E-mail support call logging and notification
• eSupport access 24 x 7 with the following on-line benefits:
- Log and close calls
- View and update calls
- Update contact information
- Access published documentation
- Access available downloads
- Access Support knowledge base
- Participate in Discussion Forums
• Standard software releases and updates
- Defect corrections (as warranted)
- Planned enhancements
- State and/or Federal mandated changes (charges may exist depending on scope) - Participation in beta program
- Release notes
• Customer Care Program
- Quarterly News Letter with support tips
- Technical support bulletins
- Communication on new products and services
- On-site visits (as required)
• Design review for potential enhancements or custom modifications • Ability to attend the annual customer conference (attendance fees apply) DocuSign Envelope ID: 2D348240-C605-4261-AAEC-2F9FD4588BAE Help Desk Hours
Our standard hours of support are from 8:00 a.m. EST to 8:00 p.m. EST, Monday to Friday, excluding designated statutory holidays. After hours telephone support is available from 8:00 p.m. EST through to 8:00 a.m. EST. Weekend and holiday assistance is available and must be scheduled in advance and in most cases is billable.
Response Times
Response times will vary and are dependent on the priority of the call. We do our best to ensure that we deal with incoming calls in the order that they are received, however calls will be escalated based on the urgency of the issue reported. Our response time guidelines are as follows:
Priority 1: 1 - 4 hours
Priority 2: 1 - 8 hours
Priority 3: 1 - 24 hours
Call Priorities
In an effort to assign our resources to incoming calls as effectively as possible, we have identified three types of call priorities, 1, 2 and 3. A Priority 1 call is deemed by our support staff to be an Urgent or High Priority call, Priority 2 is classified as a Medium Priority and Priority 3 is deemed to be a Low Priority. The criteria used to establish guidelines for these calls are as follows:
Priority 1 – High
• Security issues
• System Down (Software Application, Hardware, Operating System, Database) • Inability to process bills
• Program errors without workarounds
• Aborted postings or error messages preventing data integration and update • Performance issues of severe nature impacting critical processes Priority 2 - Medium
• System errors that have workarounds
• Reports calculation issues
• Printer related issues (related to interfaces with our software and not the printer itself) • Hand-held issues not preventing billing
• Performance issues not impacting critical processes
• Usability issues
• Workstation connectivity issues (Workstation specific) Priority 3 - Low
• Report formatting issues
• Training questions, how to, or implementing new processes • Aesthetic issues
• Issues with workarounds
• Recommendations for enhancements on system changes
• Questions on documentation
DocuSign Envelope ID: 2D348240-C605-4261-AAEC-2F9FD4588BAE Call Process
All issues or questions reported to support are tracked via a support call or ticket; our support analysts cannot provide assistance unless a support call or ticket is logged. Our current process for logging calls and tickets includes the following: eSupport (via website), email, phone and fax. • Your ticket must contain at a minimum: your organization name, contact person, software product and version, module and/or menu selection, nature of issue, detailed description of your question or issue and any other information you believe pertinent. • Our ticketing system or one of our support analysts will provide you with a ticket ID to track your issue.
• Your ticket will be assigned to the first available support representative. • As the support representative assigned to your ticket investigates your issue, you will be contacted and advised as to where the issue stands and the course of action that will be taken for resolution. If we require additional information, you will be contacted by the assigned support representative to supply the information required. • All correspondence and actions associated with your ticket will be tracked in our support ticketing system. At any time, if available to you, you may log onto our ticketing system to see the status of your call.
• Once your issue has been resolved, you will receive an automated notification by email that your ticket has been closed. This email will contain the entire event history of the issue from the time the ticket was created and leading up to the resolution of the issue.
You also have the option of viewing both your open and closed tickets, if available to you, via our support ticketing system.
• Contact the support department at your convenience for a status update on your development issues, or log onto our ticketing system (if available to you) to view your issues on-line.
Escalation Process
Our escalation process is defined below. This process has been put in place to ensure that issues are being dealt with appropriately. If at any time you are not completely satisfied with the resolution of your issue, you are encouraged to escalate with the support department as follows:
Level 1: Contact the support analyst working on your issue Level 2: Contact the Team Lead
Level 3: Contact the Manager of Support
Level 4: Contact the Vice President of Support Services Level 5: Contact the Executive Vice President
DocuSign Envelope ID: 2D348240-C605-4261-AAEC-2F9FD4588BAE Holiday Schedule
Below is a listing of statutory holidays. Please note that support services will be closed on designated days as outlined below.
New Year's Day Closed
President’s Day Closed
Memorial Day Closed
Independence Day Closed
Labor Day Closed
Thanksgiving Closed
Christmas Eve Early Closure
Christmas Day Closed
New Year’s Eve Early Closure
Billable Support Services
The services listed below are services that are out of scope of your support and maintenance agreement and are therefore considered billable services. • Extended telephone training
• Forms redesign or creation (includes Bill Prints, Notice Prints and Letters) • Setup and changes to interfaces or creation of new interface • Setup of new services or changes to services (PAP, ACH, etc.) • File imports/exports
• Custom modifications (reports, bills, forms, reversal of customizations) • Setting up additional companies / agencies / tokens / general ledgers • Data conversions / global modification to setup table data • Database maintenance, repairs and optimization
• Installations / re-installations (workstations, servers) Test Databases and Environments
We support customers in the maintenance of independent test environments for testing purposes.
This allows customers the opportunity to test fixes, modifications, new business processes and/or scenarios without risking any potentially unwanted changes to the live environment.
Connection Methods
To ensure we can effectively support our clients, we require that a communication link is established and maintained between our two sites. It is the Organization’s responsibility to ensure the connection is valid at your location so that we can connect to your site and resolve any issues. Our preferred method of connection is through Remote Desktop which can be accomplished using a VPN account and the MS Windows Remote Desktop client or a variety of remote connection tools (logmein.com, TeamViewer, join.me, VNC, etc). Harris will work with the client to establish a mutually agreeable remote connection policy.
DocuSign Envelope ID: 2D348240-C605-4261-AAEC-2F9FD4588BAE