HomeMy WebLinkAboutACCELA INC - CONTRACT - CONTRACT - 22636MAINTENANCE AGREEMENT
1. Parties ACCELA
Accela, Inc.
4160 Dublin Boulevard, Suite 128
Dublin, California 94568
Attention: Colin Samuels
T: 925.560.6577x192
F: 925.8286622
e-Mail: csamuels@accela.com
CUSTOMER
City of Fort Collins, Colorado
P.O. Box 580
Fort Collins, Colorado 80522
Attention: Dan Coldiron
T: 970-221-6844
F: 970-221-6329
e-Mail: dcoldiron@fcgov.com
This Maintenance Agreement ("MA") is intended for the exclusive benefit of the Parties; nothing herein will be
construed to create any benefits, rights, or responsibilities in any other parties.
1. Term and Termination
1.1 Term Provided that Customer signs and returns this MA to Accela no later than December 31, 2004,
this MA is effective as of the Project Completion Date described in the Services Agreement between
the Parties and will continue for a period of three (3) years . Should Customer fail to renew its
maintenance coverage or pay the applicable fees, Vendor reserves the right to withhold all support. If
Customer resumes maintenance coverage after one or more periods without such coverage, will pay all
maintenance fees attributable to the period without coverage, as such fees are calculated based upon
pricing in effect at the time of resumption of maintenance coverage.
1.2 Termination Either party may terminate if the other party materially breaches this MA and, after
receiving a written notice describing the circumstances of the default, fails to correct the breach within
thirty (30) days. Upon any termination or expiration of this MA, all rights granted to Customer are
cancelled and revert to Accela.
2. Scope of Maintenance
2.1 Maintenance Services
2.1.1 Telephone Support Accela will provide Customer with a telephone number to contact the
Customer Resource Center (CRC), Accela's live technical support facility, which is available
from 6:00 a.m. until 6:00 p.m. Pacific time Monday through Friday, excluding Accela's
observed holidays. Between the hours of 6:00 p.m. and 6:00 a.m. Pacific time Monday
through Friday and during all hours on weekends and observed holidays, Customer may
submit support requests by electronic mail, as described below.
2.1.2 E-Mail Support Accela will provide Customer with one or more electronic mail addresses to
which Customer may submit routine or non -critical support requests, which Accela will address
during its regular CRC hours, from 6:00 a.m. until 6:00 p.m. Pacific time Monday through
Friday, excluding Accela's observed holidays.
2.1.3 Online Support Accela will provide Customer with access to archived software updates and
other technical information in Accela's online support databases, which are continuously
available.
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2.1.4 Remote Support When required to properly resolve a maintenance request, Accela will
provide remote assistance to Customer via the WebExT1" Meeting Center environment or
another mutually -acceptable remote communications method.
2.1.5 On -Site Support If Customer does not wish for Accela to resolve its maintenance requests
remotely, Accela will provide on -site assistance to Customer at Accela's then -current time -
and -materials rates. In addition to these charges, Customer will compensate Accela for
associated airfare, lodging, rental transportation, meals, and other incidental expenses as
such expenses accrue. For informational purposes only, Accela's services rates as of May 30,
2004 are the following:
• Executive in Charge................................$250.00 per hour;
• Project Manager.....................................$200.00 per hour;
• Crystal Consultant..................................$185.00 per hour;
• Implementation Consultant .....................$160.00 per hour;
• Business Analyst....................................$200.00 per hour;
• Database Engineer.................................$250.00 per hour;
• Programmer/Engineer.............................$185.00 per hour;
• Web Consultant......................................$185.00 per hour; and
• On -Site Trainer.......................................$2,000.00 per day.
2.1.6 Software Updates Accela will provide revisions of and enhancements to maintained software
products, including bug fixes, to Customer as such updates are generally released by Accela.
2.2 Maintenance Limitations
2.2.1 Limitations Generally The following are not covered by this MA, but may be separately
available at rates and on terms which may vary from those described herein:
a)
Services required due to misuse of the Accela-maintained software products;
b)
Services required due to software corrections, customizations, or modifications not
developed or authorized by Accela;
c)
Services required by Customer to be performed by Accela outside of Accela's usual
working hours;
d)
Services required due to external factors including, but not necessarily limited to,
Customer's use of software or hardware not authorized by Accela;
e)
Services required to resolve or work -around conditions which cannot be reproduced
in Accela's support environment;
f)
Services which relate to tasks other than maintenance of Customer's existing
implementation and configuration of the Accela-maintained software products
including, but not necessarily limited to, enhancing or adapting such products for
specific operating environments;
g)
Services requested by Customer to implement software updates provided by Accela
pursuant to this MA; and
h)
New or additional applications, modules, or functionality released by Accela during
the term of this MA.
2.2.2 Legacy Releases Accela will provide maintenance support for the current release of each of
its maintained software applications and for the release immediately preceding such current
release. All other releases are deemed to be "Legacy Releases". Accela will respond to
maintenance requests concerning Legacy Releases only using currently -available information.
Services requiring additional research, engineering -level support, or coding or programming by
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Accela are not provided pursuant to this MA, but may be separately available at rates and on
terms which may vary from those described herein. Releases are designated numerically by
the digit immediately following the (first or initial)decimal point.
2.3 Warranty Accela will commence and complete the maintenance obligations described in this MA in a
good and workmanlike manner, consistent with the practices and standards of care generally -accepted
within and expected of Accela's industry, to ensure that the operation of the maintained software
products does not materially differ from documented specifications. Accela may make repeated efforts
within a reasonable time period to resolve maintenance requests. When a maintenance request cannot
be resolved, Customer's exclusive remedy is a refund of the maintenance fees paid to Accela for the
defective or non -conforming software products; where this MA has a multi -year term, such refund will
comprise the maintenance fees paid to Accela for the defective or non -conforming software products for
the twelve (12) calendar months immediately preceding Customer's maintenance request.
2.4 Compensation
2.4.1 Maintenance Fees In exchange for the Maintenance Services described hereinabove,
Customer will pay to Accela upon the occurrence of the billing events described in Exhibit A
the amounts designated as "Maintenance Fees".
2.4.2 Payment Terms Amounts are quoted in United States dollars and do not include applicable
taxes, if any. Customer will be responsible for payment of all federal, state or provincial, and
local taxes and duties, except those based on Accela's income. If Customer is exempt from
certain taxes, Customer will provide Accela with an appropriate certificate of exemption.
With the exception of amounts designated in Exhibit A as "Due Upon Signing", Customer will
be invoiced for all amounts as they become due. The payment terms of all invoices are net
thirty (30) days from the dates of the invoices. Any payment not paid to Accela within 30
days of the billing date will incur a late payment fee equal to five percent (5%) of the amount
past due and will accrue interest in an amount equal to one -and -a -half percent (1.5%) per
month, compounded monthly, on the outstanding balance from the billing date and Accela
may, at its sole discretion, suspend its obligations hereunder without penalty until payments
for all past -due billings have been paid in full by Customer.
3. Confidentiality
3.1 Definitions "Disclosing Party" and "Recipient" refer respectively to the party which discloses information
and the party to which information is disclosed in a given exchange. Either Accela or Customer may be
deemed Disclosing Party or Recipient depending on the circumstances of a particular communication or
transfer of information. "Confidential Information" means all disclosed information relating in whole or in
part to non-public data, proprietary data compilations, computer source codes, compiled or object
codes, scripted programming statements, byte codes, or data codes, entity -relation or workflow
diagrams, financial records or information, client records or information, organizational or personnel
information, business plans, or works -in -progress, even where such works, when completed, would not
necessarily comprise Confidential Information. The foregoing listing is not intended by the Parties to be
comprehensive, and any information which Disclosing Party marks or otherwise designates as
"Confidential" or "Proprietary" will be deemed and treated as Confidential Information. Information
which qualifies as "Confidential Information" may be presented to Recipient in oral, written, graphic,
and/or machine-readable formats. Regardless of presentation format, such information will be deemed
and treated as Confidential Information. Notwithstanding, the following specific classes of information
are not "Confidential Information" within the meaning of this Section:
a) information which is in Recipient's possession prior to disclosure by Disclosing Party;
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b) information which is available to Recipient from a third party without violation of this MA or
Disclosing Parry's intellectual property rights;
c) information disclosed pursuant to Subsection 4.4 below;
d) information which is in the public domain at the time of disclosure by Disclosing Party, or which
enters the public domain from a source other than Recipient after disclosure by Disclosing
Party;
e) information which is subpoenaed by governmental or judicial authority; and
f) information subject to disclosure pursuant to the Colorado Open Records Act.
3.2 Confidentiality Term The obligations described in this Section commence on the Effective Date and will
continue until two (2) years following any termination or expiration of this MA ("Confidentiality Term").
3.3 Confidentiality Obligations During the Confidentiality Term, Recipient will protect the confidentiality of
Confidential Information using the same degree of care that it uses to protect its own information of
similar importance, but will in any case use no less than a reasonable degree of care to protect
Confidential Information. Recipient will not directly or indirectly disclose Confidential Information or any
part thereof to any third party without Disclosing Parry's advance express written authorization to do so.
Recipient may disclose Confidential Information only to its employees or agents under its control and
direction in the normal course of its business and only on a need -to -know basis. Both parties
acknowledge that given the strict disclosure timeframe provided by Colorado Open Records Act, the
Customer will undertake best efforts to notify and work with Accela when an open records request is
received. In responding to a request for Confidential Information, Recipient will cooperate with
Disclosing Party, in a timely fashion and in a manner not inconsistent with applicable laws, to protect
the Confidential Information to the fullest extent possible.
3.4 Publicity During the term of this MA, including the term of any amendment hereto, Accela may publicly
disclose its ongoing business relationship with Customer. Such disclosures may indicate Customer's
identity and the Accela product(s) and services provided or contracted to be provided to Customer, but
may not expressly or impliedly indicate Customer's endorsement of Accela's products or services
without Customer's prior written authorization.
4. Other Terms and Conditions
4.1 Customer Obligations As required, Customer will provide Accela with appropriate access to
Customer's facilities, data systems, and other resources. If Security restrictions impair such access,
Customer acknowledges that some maintenance services hereunder may not be provided to Customer.
It is Customer's sole responsibility to maintain current backup copies of its data and of its
implementation of Accela's software products. If Customer's failure to create proper backups
substantially increases the difficulties of any remedial actions by Accela hereunder, Accela reserves the
right to charge Customer for any extra work reasonably -attributable to such increased difficulty, as
calculated at Accela's then -current time -and -materials rates.
4.2 Proprietary Rights The remedial methods, software updates, and product information provided to
Customer pursuant to this MA are protected under the laws of the United States and the individual
states and by international treaty provisions. Accela retains full ownership in such items and grants to
Customer a limited, nonexclusive, nontransferable license to use the items, subject to the terms and
conditions of this MA and other agreements between Accela and Customer.
4.3 Limitation of Liability Accela provides no warranty whatsoever for any third -party hardware or software
products. Third -party applications which utilize or rely upon the Application Services may be adversely
affected by remedial or other actions performed pursuant to this MA; Accela bears no liability for and
Maintenance Agreement (MA), Version 4.2b Page 4 of 7
has no obligation to remedy such effects. Except as set forth herein, Accela provides all Application
and Professional Services "as is" without express or implied warranty of any kind regarding the
character, function, capabilities, or appropriateness of such services or deliverables. To the extent not
offset by its insurance coverage and to the maximum extent permitted by applicable laws, in no event
will Accela's cumulative liability for any general, incidental, special, compensatory, or punitive damages
whatsoever suffered by Customer or any other person or entity exceed the fees paid to Accela by
Customer during the twelve (12) calendar months immediately preceding the circumstances which give
rise to such claim(s) of liability, even if Accela or its agents have been advised of the possibility of such
damages.
4.4 Force Maieure If either party is delayed in its performance of any obligation under this MA due to
causes or effects beyond its control, that party will give timely notice to the other party and will act in
good faith to resume performance as soon as practicable.
4.5 Dispute Resolution This MA is governed by the laws of the State of Colorado. Any controversy or
claim arising out of or relating to this MA, or the breach thereof, will be settled by arbitration
administered by the American Arbitration Association under its Commercial Arbitration Rules, including
the Emergency Interim Relief Procedures, and judgment on the award rendered by the arbitrator may
be entered in any court having jurisdiction thereof. The place of arbitration will be Fort Collins,
Colorado. Either party may apply to the arbitrator for injunctive relief until the arbitration award is
rendered or the controversy is otherwise resolved. Either party also may, without waiving any remedy
under this MA, seek from any court having jurisdiction any interim or provisional relief that is necessary
to protect the rights or property of that party, pending the arbitrator's determination of the merits of the
controversy. Each party will initially bear its own expenses and an equal share of the costs of the
arbitration, but the prevailing party may be awarded its expenses, reasonable attorneys' fees, and costs.
The failure of either party to object to a breach of this MA will not prevent that party from thereafter
objecting to that breach or any other breach of this MA.
4.6 Assignment Accela may assign its rights and obligations hereunder for purposes of financing or
pursuant to corporate transactions involving the sale of all or substantially all of its stock or assets.
Accela may subcontract with qualified third parties to provide portions of the Professional Services
described hereinabove.
4.7 Survival The following provisions will survive the termination or expiration of this MA: Section 2.1
("Term"), as to Customer's obligation to pay any fees associated with a lapse in maintenance coverage
upon resumption of such coverage; Section 3.3 ("Warranty"), as to limitation of remedy; Section 3.4
("Compensation") and all subsections thereof, as to Customer's obligation to pay any fees accrued or
due at the time of termination or expiration; Section 4 ("Confidentiality") and all subsections thereof;
Section 5.2 ("Proprietary Rights"); Section 5.3 ("Limitation of Liability); Section 5.5 ("Dispute
Resolution"); Section 5.6 ("Assignment"); Section 5.7 ("Survival"); and Section 5.8 ("Severability and
Amendment").
Maintenance Agreement (MA), Version 4.2b Page 5 of 7
4.8 Severability and Amendment If any particular provision of this MA is determined to be invalid or
unenforceable, that determination will not affect the other provisions of this MA, which will be construed
in all respects as if the invalid or unenforceable provision were omitted. No extension, modification, or
amendment of this MA will be effective unless it is described in writing and signed by the Parties.
Its
(Title)
Dated: �y-
(Month, Day, Year)
Exhibit Follows.
CUSTOMER ee nn
By:
(Sign re)
(Print Name)
Its cez>>2 pv,? chGi¢s 4.
(Title) v' / $!c Ka [. 'T
Dated: / 2 / 2 o
(Month, Day, Year)
END OF DOCUMENT
Maintenance Agreement (MA), Version 4.2b Page 6 of 7
EXHIBIT A — Deliverables and Compensation
A°° 5catioiii
Licenses .
N aitt no Fees .
Accela AutomationTm Land Management Software
75
$119,952.001
Comprises total cost for three (3) years of software maintenance at $39,984.00 per annum.
Rb' ment:Mle�tone<_ ' � -- ,.
: '� Mainte►rat�eFees
Due Upon Acceptance
$39,984.00
Due on First Anniversary of Project Completion Date
$39,984.00
Due on Second Anniversary of Project Completion Date
$39,984.00
Tot f cf Maintenance; . ees - . 119 5240=
END OF DOCUMENT
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