HomeMy WebLinkAboutCC Resolution 11857 (Application Software License & Use Agr.)RESOLUTION NO. 11857
RESOLUTION APPROVING THE APPLICATION SOFTWARE LICENSE AND
USE AGREEMENT FOR $85,650 WITH IRONPOINT TECHNOLOGY, INC. AND
AUTHORIZING CITY MANAGER TO EXECUTE THE AGREEMENT.
Whereas, the City recognizes the importance of offering citizens and visitors
information and services through the internet; and,
Whereas, the existing City web presence is limited in content and usability; and,
Whereas, on the 11th day of August, 2005, pursuant to due and legal notice
published in the manner provided by law, inviting sealed bids for proposals for
the products and services hereinafter mentioned, as more fully appears from the
Affidavit of Publication thereof on file in the office of the City Clerk of the City of
San Rafael, California, the City Clerk of said City did publicly open, examine and
declare all sealed bids or proposals for an Internet Web Solution application and
services in accordance with the request for proposal (RFP) on file in the office of
said City Clerk; and
Whereas, the bid of Ironpoint Technology, Inc. in the amount of $85,650 was
and is the best bid for an Internet Web Solution and said bidder is the lowest
responsible bidder therefore;
NOW, THEREFORE, IT IS HEREBY ORDERED AND RESOLVED that the bid
of Ironpoint Technology, Inc., in the amount of $85,650, is hereby accepted and
included as part of the Agreement attached to and made part of this resolution
as Exhibit 'T"
IT IS FURTHER ORDERED AND RESOLVED that the City Manager of said City
be authorized and directed to execute the Agreement with Ironpoint Technology,
Inc. for said products and services, in the form attached hereto as Exhibit "I", in
the amount of $85,650.
BE IT FURTHER RESOLVED that the Assistant City Manager is hereby
authorized to take any and all such actions and make changes as may be
necessary to accomplish the purpose of this resolution, including approval of
modification of scope as provided in the Agreement in a total amount not to
exceed $8,000.
I, JEANNE M. LEONCINI, Clerk of the City of San Rafael, hereby certify that the
foregoing resolution was duly and regularly introduced and adopted
at a regular meeting of the San Rafael City Council meeting held on
the twenty-first day of November, 2005 by the following vote, to wit:
AYES: COUNCILMEMBERS: Cohen, Heller, Miller, Phillips & Mayor Boro
NOES: COUNCILMEMBERS: None
ABSENT: COUNCILMEMBERS: None
JEAMNE M. LEON INI, City Clerk
APPLICATON SOFTWARE LICENSE AND USE AGREEMENT
by and between
City of San Rafael
and
Ironpoint Technology Inc.
pursuant to
City Internet Web Solution Request for Proposal of August 11, 2005
November 21, 2005
CITY OF SAN RAFAEL IRONPOINT TECHNOLOGY, INC.
NOVEMBER 21. 2005 APPLICATION SOFTWARE LICENSE/USE AGREEMENT
TABLE OF CONTENTS
1.00 DEFINITIONS AND INTRODUCTORY PROVISIONS.............................................5
1.01 DEFINITION OF TERMS...................................................................................................................... 5
1.02 TERM........................................................................................................................................................7
1.03 INCLUDED DOCUMENTS....................................................................................................................7
1.04 SUBCONTRACTORS.............................................................................................................................7
1.05 EFFECTIVE DATE.................................................................................................................................7
2.00 PROPERTY RIGHTS.......................................................................................................8
2.01 WARRANTY OF OWNERSHIP/RIGHT TO SELL SOFTWARE....................................................8
2.02 HOLD HARMLESS AND INDEMNIFICATION-SOFTWARE........................................................8
2.03 COPYRIGHT NOTICE...........................................................................................................................8
2.04 ACKNOWLEDGMENT OF NO ENHANCEMENT RIGHT............................................................. 8
3.00 PROPRIETARY AND TRADE SECRET INFORMATION........................................8
3.01 CUSTOMER'S PROTECTION OF LICENSED SOFTWARE.......................................................... 8
3.02 DESIGNATION OF CONFIDENTIALITY..........................................................................................9
3.03 CUSTOMER'S RIGHTS TO COPY LICENSED SOFTWARE.........................................................9
4.00
LICENSE GRANT.............................................................................................................9
4.01
SCOPE OF LICENSE.............................................................................................................................. 9
4.02
RISK OF LOSS OF LICENSED SOFTWARE AND DOCUMENTATION....................................10
4.03
DOCUMENTATION.............................................................................................................................10
4.04
SCOPE OF SERVICES.........................................................................................................................10
4.05
SITE OF SERVICES.............................................................................................................................10
4.06
MODIFICATION OF SCOPE..............................................................................................................10
5.00 PROGRAM SUPPORT SERVICES..............................................................................11
5.01 LICENSED SOFTWARE AND DOCUMENTATION TRAINING.................................................11
5.02 TRAINING.............................................................................................................................................11
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CITY OF SAN RAFAEL IRONPOINT TECHNOLOGY, INC.
NOVEMBER 21, 2005 APPLICATION SOFTWARE LICENSE/USE AGREEMENT
5.03 LICENSED SOFTWARE AND DOCUMENTATION SUPPORT AND ENHANCEMENTS ......12
5.04 ANNUAL MAINTENANCE/SUPPORT SERVICES FOR LICENSED SOFTWARE ..................13
5.04.1 Coverage Hours.............................................................................................................................. 13
5.04.2 Call Response................................................................................................................................. 13
5.05 LICENSED SOFTWARE MAINTENANCE......................................................................................13
5.06 ON-SITE ASSISTANCE.......................................................................................................................14
5.07 TRAINING FOR ENHANCEMENTS.................................................................................................14
5.08 ANNUAL LICENSED SOFTWARE MAINTENANCE AND SUPPORT FEE INCREASES ....... 14
5.09 PLATFORM PROTECTION...............................................................................................................14
5.10 TERMINATION OF ANNUAL MAINTENANCE/SUPPORT SERVICES....................................14
5.11 CUSTOMER RESPONSIBILITIES FOR SUPPORT........................................................................15
5.12 SUPPORT LIMITATIONS...................................................................................................................15
6.00 INSTALLATION, DELIVERY, AND ACCEPTANCE..............................................15
6.01 DELIVERY.............................................................................................................................................15
6.02 ACCEPTANCE AND PAYMENT.......................................................................................................15
6.02.1 ACCEPTANCE TESTING............................................................................................................. 16
6.02.2 PAYMENT SCHEDULE............................................................................................................... 17
6.03 APPLICABLE TAXES..........................................................................................................................17
6.04 ADDITIONAL CHARGES...................................................................................................................17
7.00 CUSTOMER RESPONSIBILITIES..............................................................................17
7.01 CUSTOMER SUPPORT OF VENDOR...............................................................................................17
8.00 WARRANTY OF PERFORMANCE............................................................................18
8.01 COMPLIANCE WITH STATE AND FEDERAL REPORTING REQUIREMENTS ....................18
8.02 WARRANTY OF PERFORMANCE................................................................................................... 18
8.03 YEAR 2000 COMPATIBILITY...........................................................................................................18
8.04 CORRECTION OF ERRORS UNDER THE WARRANTY.............................................................19
8.05 ORAL REPRESENTATIONS..............................................................................................................19
8.07 NO DISABLING CODE........................................................................................................................19
9.00 LIABILITY, INDEMNIFICATION AND DEFAULT................................................19
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CITY OF SAN RAFAEL IRONPOINT TECHNOLOGY, INC.
NOVEMBER 21. 2005 APPLICATION SOFTWARE LICENSE/USE AGREEMENT
9.01 LIABILITY, INDEMNIFICATION AND DEFAULT.......................................................................19
9.02 BANKRUPTCY/SUPPORT CESSATION.......................................................................................... 20
9.03 INSURANCE.......................................................................................................................................... 20
9.04 LIMITATION OF LIABILITY............................................................................................................ 20
10.00 GENERAL PROVISIONS..........................................................................................21
10.01 ASSIGNMENT.......................................................................................................................................21
10.02 GOVERNING LAW..............................................................................................................................21
10.03 ENTIRE AGREEMENT/AMENDMENTS......................................................................................... 21
10.04 CONSTRUCTION................................................................................................................................. 21
10.05 SERVICE OF NOTICE.........................................................................................................................22
10.06 BUSINESS LICENSE............................................................................................................................22
SIGNATURES: ............................................................................................................................ 23
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CITY OF SAN RAFAEL IRONPOINT TECHNOLOGY, INC.
NOVEMBER 21, 2005 APPLICATION SOFTWARE LICENSE/USE AGREEMENT
This Agreement is entered into this twenty-first day of November, 2005 by and between City of
San Rafael, a California municipal corporation district located at:
P.O. Box 151560
San Rafael, CA 94915-1560
hereinafter sometimes referred to as `Customer' and Ironpoint Technology, Inc., a Canadian
corporation with offices located at:
Suite 220, 800 West Pender Street
Vancouver, BC. Canada
V6C 2V6
hereinafter sometimes referred to as `Vendor.'
1.00 DEFINITIONS AND INTRODUCTORY PROVISIONS
1.01 DEFINITION OF TERMS
The Customer and Vendor agree that within the limits of common usage, a word in a
contract means what the contract says it means.
For purposes of this Agreement, the following are defined terms:
(a) The term "RFP" shall refer to the Customer's City Internet Web Solution Request
for Proposal release on August 11, 2005. The term "Vendor's RFP Response" shall
mean the proposal response submitted by Vendor on August 31, 2005 including
narratives and response forms RFI, RF2, R172a, and R173.
(b) The term "System" shall mean the Licensed Software and Documentation, and
software developed specifically under this Agreement to be delivered by the
Vendor in response to the Project Definition detailed herein.
(c) The term "Project System" shall include any and all computer code in both printed
and machine readable form developed or modified under the scope of this
Agreement, its translated or compiled version, and all specifications and other
written documentation (in printed or machine readable form) relating thereto as
well as any additional hardware, hardware component, or peripheral device directly
associated with the items covered by this Agreement.
(d) The term "Licensed Software" shall mean a licensed information processing
program or programs consisting of a series of instructions or statements which is
machine readable commonly referred to as "application software" for which a
license is purchased from a third party and is required in conjunction with the items
covered by this Agreement.
(e) The term "Documentation" shall mean any materials related to the Licensed
Software including, without limitations, user's guides, technical guides, training
materials, Vendor guidelines and customer support instructions provided for use in
connection with the Licensed Software.
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CITY OF SAN RAFAEL IRONPOINT TECHNOLOGY, INC.
NOVEMBER 21, 2005 APPLICATION SOFTWARE LICENSE/USE AGREEMENT
(f) The term "System Software" shall mean third party supplied Licensed Software and
Documentation that control hardware functions, commonly referred to as "operating
systems", and file management utilities, compilers and programming languages,
etc.
(g) The term "Functional Specifications" shall mean a written description of the
Customer's procedures that are to be automated by virtue of the Licensed Software
proposed by the Vendor's RFP Response, form R172a.
(h) The term "Technical Specifications" shall mean the written description of the
systems to be purchased, leased or licensed as included in the RFP, any
amendments and the Vendor's RFP Response. The technical specifications in the
RFP (form RF2a) and the Vendor's RFP Response dated 8/31/05 are deemed
included as part of the Agreement as is the entire RFP. In addition, any written
descriptions, reports, or examples of Customer systems made available to Vendor
during the RFP process for review are deemed included as part of the Agreement.
(i) The term "Enhancement" shall mean any program, any part thereof, or any
materials not included in the Licensed Software and Documentation at the time of
execution of this Agreement that is related to the Licensed Software and
Documentation.
(j) The term "Use" shall include, but not be limited to, copying any portion of the
Licensed Software or Documentation into a computer or transmitting them to a
computer for processing of the instructions or statements contained in the Licensed
Software and Documentation.
(k) The term "Updates" shall mean program logic and documentation changes and
improvements to correct known defects and maintain the operational quality of the
Licensed Software and changes required to keep it current with current versions of
the System Software or other environmental software, firmware, or hardware as
specified by the hardware manufacturer.
(1) The term "Project Definition" shall include the Customer's Functional
Specifications, Technical Specifications, and the Vendor's RFP Response for scope
and content of work, including cost and timelines. Such documents shall become a
part of this Agreement by reference and shall be signed by both Vendor and
Customer before work shall begin.
(m)The term "Source Code" shall mean all of the instructions, in both printed and
machine-readable form, needed to compile, link, and execute any or all of the
software covered by this Agreement. It must include, by definition, all of the
libraries, and other utilities to take the raw instructions and convert them into
usable, executable Object Code on the hardware environment(s) at the Customer's
site(s). It must also include all of the necessary history and documentation for a
reasonably trained technician to take over the on-going support of the systems
involved.
(n) The term "Object Code" shall mean the machine-readable, executable form of the
software covered by this Agreement which enables the hardware environment at the
Customer's site(s) to perform the functions as defined by the Project Definition.
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CITY OF SAN RAFAEL IRONPOINT TECHNOLOGY, INC.
NOVEMBER 21, 2005 APPLICATION SOFTWARE LICENSE/USE AGREEMENT
(o) The term "Module" shall mean a subset of the packaged Licensed Software that
relate to a specific set of functions as defined in the Request for Proposal document
and assigned a specific paragraph number. In the Vendor's RFP response form
RF2, some modules were cross-referenced as included with other modules for
which as specified license fee was quoted.
1.02 TERM
Except as provided for termination for cause in sections 6.02 and 9.01, this Agreement
shall continue for a term ending two (2) years from the effective date of this Agreement as
provided in section 1.05, after which date of the agreement shall automatically extend for
successive one-year periods unless a written notice of termination has been given by either
party to the other party at least three (3) months prior to the end of such a one-year
extension period. The obligations set forth in sections 2.01, 2.02, 3.01, 3.02, 3.03, 8.02 and
9.01 shall survive termination of this Agreement.
W17=111ace08 A 00161*81r•INZWS
This Agreement shall include the following documents which are listed in order of their
precedence in the application and interpretation of this Agreement:
A. This Agreement with the following attached Exhibits:
Project and Payment Schedule - Exhibit Al
B. Award Configuration - Exhibit B
Licensed Software Modules — B 1
C. Installation & Training - Exhibit C
D. Acceptance Test Specifications - Exhibit D
Vendor RFP Response form RF2a
E. Vendor's RFP Response (included by reference)
F. Customer's Request for Proposal (RFP) (included by reference)
1.04 SUBCONTRACTORS
Vendor asserts that no subcontractors will be used under this Agreement.
1.05 EFFECTIVE DATE
The effective date of this Agreement will be the date on which the last party signed the
contract if both parties did not sign on the same date.
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CITY OF SAN RAFAEL IRONPOINT TECHNOLOGY, INC.
NOVEMBER 21, 2005 APPLICATION SOFTWARE LICENSE/USE AGREEMENT
2.00 PROPERTY RIGHTS
2.01 WARRANTY OF OWNERSHIP/RIGHT TO SELL SOFTWARE
Vendor hereby stipulates that it is the sole owner of all Licensed Software and
Documentation, or that it has the right to sell, lease, or grant and support such Licensed
Software and Documentation, free and clear of any liens and encumbrances. Any and all
legal actions regarding the Licensed Software and Documentation, or any previous version
of them under any name, in the past fifteen years has been fully disclosed to the Customer.
2.02 HOLD HARMLESS AND INDEMNIFICATION -SOFTWARE
In the event of a claim that the Licensed Software constitutes an infringement of a
copyright or patent, Vendor shall hold harmless and indemnify Customer and its officers,
employees and agents from every claim or demand resulting therefrom. Vendor shall, at its
own cost, risk and expenses, defend any claim on behalf of Customer and its officers,
employees and agents and satisfy any judgment rendered against any of them with respect
to infringements of copyrights, trade secrets, or patents.
2.03 COPYRIGHT NOTICE
Vendor will mark all copies of the Licensed Software and Documentation with a copyright
and trade secret notice indicating Vendor's ownership. Placing of such copyright and trade
secret notice shall not be deemed a publication or placement in the public domain.
2.04 ACKNOWLEDGMENT OF NO ENHANCEMENT RIGHT
Any Licensed Software modifications or enhancement developed by the Vendor for the
Customer under this Agreement will remain the property of the Vendor but shall be
included under the terms of this Agreement.
3.00 PROPRIETARY AND TRADE SECRET INFORMATION
3.01 CUSTOMER'S PROTECTION OF LICENSED SOFTWARE
It is the Customer's understanding that Licensed Software and Documentation, which a
Vendor considers to be proprietary and a trade secret, will be treated by the courts as a
trade secret if the Vendor's behavior toward the Licensed Software and Documentation
show an effort to preserve the secret. Such behavior may include the institution of security
measures, a designation of confidentiality and a restriction on copying the Licensed
Software and Documentation.
Customer will make reasonable effort to protect the confidential nature of the Licensed
Software and Documentation and system software by establishing written procedures for its
employees and other persons permitted access to the Licensed Software and
Documentation and system software to follow in order to protect the Licensed Software
and Documentation and System Software from being acquired by unauthorized persons.
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CITY OF SAN RAFAEL IRONPOINT TECHNOLOGY, INC.
NOVEMBER 21, 2005 APPLICATION SOFTWARE LICENSE/USE AGREEMENT
3.02 DESIGNATION OF CONFIDENTIALITY
Confidential information shall mean all matters relating to the Customer's business which
are clearly designated in writing as confidential by the Customer and which are disclosed
by Customer to Vendor pursuant to this Agreement. All confidential information will be
safeguarded and kept confidential by Vendor during the term of this Agreement to the same
extent that Vendor safeguards confidential information relating to its own business.
Vendor will instruct its employees to use the same care and discretion with respect to the
Customer's confidential information that they use with respect to the Vendor's confidential
information
Customer acknowledges that the Licensed Software and Documentation contain
proprietary and confidential information. Information received by Customer under this
Agreement will not be considered confidential if:
(a) The information was in Customer's possession prior to the execution of this
Agreement;
(b) The information was legally acquired from third parties and did not originate with
Vendor or was in the public domain at the time it was disclosed;
(c) The information was independently developed by Customer;
d) The information was disclosed to Customer by a third party with Vendor's approval.
3.03 CUSTOMER'S RIGHTS TO COPY LICENSED SOFTWARE
Customer shall not, without prior consent of Vendor, copy in whole or in part, the Licensed
Software and Documentation provided by Vendor under this Agreement for other than the
Customer's need for a single copy of the Licensed Software and Documentation for
back-up purposes or installation of System under provisions of this Agreement.
4.00 LICENSE GRANT
4.01 SCOPE OF LICENSE
Vendor hereby grants to Customer, for the term of the Agreement, a non-exclusive,
nontransferable license, to:
(a) Install, use, and execute the Licensed Software on computers owned or leased
and used by Customer at its facilities or contracted web hosting company, for an
unlimited number of concurrent users, for the sole and express purpose of
supporting the internal business activities of Customer or other public agencies
contracting for service with Customer; and
(b) Use the Documentation only in conjunction with installation and use of the
Licensed Software.
Customer shall pay software license fees as provided in Exhibit B and in accordance with
the payment schedule identified in Exhibit A.
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CITY OF SAN RAFAEL IRONPOINT TECHNOLOGY, INC.
NOVEMBER 21. 2005 APPLICATION SOFTWARE LICENSE/USE AGREEMENT
4.02 RISK OF LOSS OF LICENSED SOFTWARE AND DOCUMENTATION
The Vendor shall assume risk of loss and damage to the Licensed Software and
Documentation and shall replace any loss or damaged portion at Vendor expense. Risk of
loss prior to delivery shall be covered by the Vendor's insurance.
4.03 DOCUMENTATION
The Vendor shall furnish the Customer upon execution of this Agreement at a minimum,
two (2) printed copies (one as working copy and one for library purposes) and one
electronic (CD-ROM) copy of the Documentation, which materials shall describe the
Vendor's recommended use and application of the Licensed Software.
4.04 SCOPE OF SERVICES
The scope of services for this Agreement is defined in the Exhibits attached hereto. Any
additional services shall be provided as specified in section 4.08 below.
4.05 SITE OF SERVICES
Vendor's services are preferred to be performed at location(s) within the enterprise unless
specific work assignment calls for services to be performed at Customer location(s). If
services are provided at Vendor's location(s), Vendor shall provide office space and
facilities to Customer staff commensurate with that provided its own employees. If
services are provided at Customer's location(s), Customer shall provide office space and
facilities to Vendor's staff commensurate with that provided to its own employees.
4.06 MODIFICATION OF SCOPE
Subject to Customer's purchasing policy in San Rafael Municipal Code chapter 2.55,
Customer may at any time modify the scope of services specified in any work assignment
upon five (5) days written notice to Vendor specifying the desired modifications to the
same degree of specificity as in the original work assignment. Modification of services
shall include any increase, modification or decrease in the scope of service. Vendor shall
provide a written quote for the increased, changed or decreased services within five (5)
working days. In no event shall Vendor continue with services requested in writing to be
discontinued from the date of written notice. The parties shall then negotiate in good faith
and agree upon an increased or decreased charge which shall otherwise be governed by the
terms and condition of this Agreement and the work assignment.
Vendor shall provide the custom programming services as defined in a Work Assignment
Schedule which will be attached and made a part hereof as Exhibit B(2), and the services
specified in any future Work Assignment Schedule which may be agreed to in writing
between the parties. Such services might include special studies; programming and
application design and development; systems analysis and design; data base and program
conversion; data conversion; implementation planning, procedures and programs;
installation evaluation; technical and user training; and specification preparation. Customer
shall request such services in writing on a Vendor -developed, Customer -approved form and
shall specify:
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CITY OF SAN RAFAEL IRONPOINT TECHNOLOGY, INC.
NOVEMBER 21, 2005 APPLICATION SOFTWARE LICENSE/USE AGREEMENT
1) Nature of work to be performed;
2) Number of individuals required;
3) Category of experience of each;
4) Date on which assignment is to begin;
5) Location of assignment;
6) Length of assignment, including due date;
7) Source of funds (Account Number and authorized approval); and
8) Individual who will coordinate for Customer and Vendor.
Vendor shall use its best efforts to provide a quotation for each service request and will
provide a written quote within five (5) working days following receipt by the Vendor of the
Customer's request. Upon written acceptance by Customer of Vendor's quotation, Vendor
shall be authorized to proceed with the work. Such quotation shall be called the "work
assignment".
Each work assignment shall be governed by the terms and conditions of this Agreement,
the terms and conditions of the work assignment, and by such supplementary written
amendments of this Agreement or the work assignment as may be, from time to time,
executed between the parties.
In the event of a conflict between the Functional Specification of this Agreement and the
Functional Specifications of any work assignment, the Functional Specifications of the
work assignment shall govern.
No oral request for modification of services shall be binding on either party.
Further, the Vendor agrees that its responsibilities under this Agreement will not be
assigned or licensed by the Vendor without the prior written consent of the Customer.
5.00 PROGRAM SUPPORT SERVICES
5.01 LICENSED SOFTWARE AND DOCUMENTATION TRAINING
The Vendor shall provide to Customer sufficient technical and end user (non technical or
functional) training and support services to enable Customer to productively use the
Licensed Software and Documentation using the latest published release of the system
software to the Customer's satisfaction. Vendor stipulates that the days of training specified
in Exhibit C attached hereto are sufficient under reasonable circumstances to accomplish
this. The Customer shall have the right to audio and video-tape the training session for
retraining purposes.
A list of the final training schedule and costs is included in Exhibit C.
5.02 TRAINING
Vendor shall provide installation training as specified in Exhibit C directly to the various
user -groups for the application Modules at Customer facilities. Additional training at
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CITY OF SAN RAFAEL IRONPOINT TECHNOLOGY, INC.
NOVEMBER 21, 2005 APPLICATION SOFTWARE LICENSE/USE AGREEMENT
Customer request will be available at Vendor's then current rates (for similar agencies and
similar services). Trainers shall be experienced and knowledgeable in the specific Modules
they are teaching and familiar with the procedures in similar municipal environments to the
Customer's. Customer will provide the following training areas: a large group area with 10
networked workstations, tables, chairs, white board, projector, and other supplies such as
paper, pencils, easel, etc. Vendor will provide necessary training materials and have
session outlines and agendas for all training sessions, provided to Customer at least five
days in advance of the scheduled sessions.
Customer may request a replacement trainer if there is demonstrable evidence that the
trainer initially scheduled has been ineffective in conducting specific training sessions. If
Vendor has been notified that a particular training session was ineffective because of the
qualifications or techniques of the trainer and uses the same trainer in a subsequent session
which also turns out to be ineffective (with documented evidence provided by Customer),
Customer will be entitled to withhold payment for the subsequent session until a makeup
session with a qualified trainer can be completed.
The training dates identified in the Project Schedule (Exhibit A) may be modified only by
mutual agreement of the Customer and Vendor. In the event the Customer cancels
scheduled training dates (excluding events beyond Customer's reasonable control), with
less than two weeks notice to Vendor, Vendor shall be compensated for all out of pocket
expenses incurred for said training. In addition, Customer shall pay vendor 10% of the
total cost of the training rates for the days that were cancelled.
5.03 LICENSED SOFTWARE AND DOCUMENTATION SUPPORT AND
ENHANCEMENTS
Regardless of whether the Customer licenses Source Code or Object Code, or a
combination thereof, Vendor -provided Licensed Software and Documentation support will
be provided by Vendor in annual increments after Acceptance test has been successfully
completed.
For purposes of comparison, Licensed Software and Documentation support costs shall be
identified in annual increments. Year one support costs shall begin after acceptance and
include any warranty periods. Year two support costs shall include a full twelve months of
support cost. Vendor, however, will correct errors or malfunctions in the Licensed
Software and Documentation from the date of installation.
Vendor will provide at no additional cost all new enhanced and updated versions of
Licensed Software and Documentation to Customer. This will be provided with detailed
installation instructions for installation, testing and validation by Customer. Licensed
Software and Documentation support and enhancements shall include:
a) Correction of all errors and malfunctions in the Licensed Software and
Documentation;
b) Vendor -initiated Licensed Software and Documentation enhancements and new
versions for installed application and system software;
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CITY OF SAN RAFAEL IRONPOINT TECHNOLOGY, INC.
NOVEMBER 21. 2005 APPLICATION SOFTWARE LICENSE/USE AGREEMENT
c) Charges for programming time, data conversion tools, licensed materials update,
version control, Vendor internal library functions, shipping, handling and media
costs shall all be included in the annual support fee;
d) All State and Federal -mandated changes; and
e) All changes supplied to other similar public agencies.
Licensed Software and Documentation support and enhancements shall not include
Customer -developed queries and reports.
5.04 ANNUAL MAINTENANCE/SUPPORT SERVICES FOR LICENSED SOFTWARE
As part of regular Annual Maintenance/Support services, the Vendor shall provide
unlimited email technician support. This shall include answering questions from a
Customer designated system administrator, dial -in diagnostics to the Customer systems,
and regular updates and upgrades to keep the systems current with the state of the art and
hardware environment. In addition, the Vendor shall provide unlimited telephone support.
The City will be responsible for support costs associated with telephone support requests
only if such requests are not associated with a problem or defect related to the Vendor's
software. Vendor shall invoice Customer for such costs at the rates specified in Exhibit B1,
and Customer will process such invoice for payment according to its normal payment
processing procedures.
5.04.1 Coverage Hours
Vendor will provide a toll free phone number and monitored email address for
Customer to contact whenever a reproducible problem with the operation and use of
the Licensed Software occurs. Normal service hours will be Monday -Friday, 9AM-
6PM PST, Vendor's published list of holidays excepted.
5.04.2 Call Response
A. For problems in which the Customer's system is affected due to a Vendor
software problem, Vendor will provide a temporary fix or procedural
workaround for reported problems. If the permanent fix cannot be delivered in
the next release of the software, Vendor will provide weekly status reports to
Customer of the progress for the permanent fix until it has been successfully
implemented on Customer's systems.
5.05 LICENSED SOFTWARE MAINTENANCE
The Vendor shall maintain Customer's Licensed Software so that it operates in conformity
with materials as set forth in the Vendor's RFP Response and subsequent related documents
including all future updated or enhanced versions. The Vendor shall use best efforts to
correct reproducible material errors or malfunctions after notification by Customer, supply
technical bulletins, updated user guides and other Documentation as they are released by
the Vendor, and supply Customer with Updates to the Licensed Software within 30 days of
their announced release.
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CITY OF SAN RAFAEL IRONPOINT TECHNOLOGY, INC.
NOVEMBER 21, 2005 APPLICATION SOFTWARE LICENSE/USE AGREEMENT
5.06 ON-SITE ASSISTANCE
Assistance by the Vendor for services not covered by this Agreement at Customer's
location shall be available at Customer's written request from an authorized representative
subject to compliance with the Customer's purchasing policies as contained in San Rafael
Municipal Code Chapter 2.55. On-site assistance will be billed at the Vendor's rates as
stipulated in Exhibit BI of this Agreement. Expenses shall be charged at the lesser of
actual or rates as defined in said Exhibit.
If correction of any Licensed Software error or malfunction requires the Vendor to be on-
site to install a fix or correct such malfunction, the Customer will not be liable for any
labor, travel, or related expenses.
5.07 TRAINING FOR ENHANCEMENTS
The cost and Customer time requirements for training for Enhancements shall be provided
by Vendor in advance of the installation of any such Enhancement.
5.08 ANNUAL LICENSED SOFTWARE MAINTENANCE AND SUPPORT FEE
INCREASES
Customer shall pay the Annual Maintenance/Support Services fees identified in Exhibit B
commencing 6 months after successful completion of Acceptance Testing. Vendor may
increase the Annual Maintenance/Support Service Fees once a year thereafter on the
anniversary date of the initial payment of Annual Maintenance/Support Service Fees.
Such increase shall be limited to 5% per year provided that written notice of the increase
shall be made 2 months before the Annual Maintenance/Support Services fees are due.
5.09 PLATFORM PROTECTION
As long as the Customer maintains continuous maintenance and support with the Vendor
for each of the modules included herein, Customer shall have the right to transfer the
licenses for any and all modules to any new hardware/platform environment then currently
marketed and supported by Vendor. Customer agrees to pay for any data conversion and
retraining costs which shall not exceed the lesser of the costs paid under this Agreement for
initial conversion and training or those charged to similar customers for similar tasks.
5.10 TERMINATION OF ANNUAL MAINTENANCE/SUPPORT SERVICES
Annual Maintenance/Support Services may be terminated as follows:
A. Upon 90 days prior written notification by Customer to the Vendor;
B. Upon 60 days' prior written notice if the other party has materially breached the
provisions of this Agreement and has not cured such breach within such notice
period;
C. Annual Maintenance/Support Service fees shall be paid annually, and shall not
be refundable.
D. Termination of such Annual Maintenance/Support Services as provided herein
shall not be deemed a termination of this Agreement.
Ironpoint Technology, Software License Agreement Page 14 of 23
CITY OF SAN RAFAEL IRONPOINT TECHNOLOGY, INC.
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5.11 CUSTOMER RESPONSIBILITIES FOR SUPPORT
Customer agrees to have a dial in telephone line, Virtual Private Network, or other
mutually agreed upon access method available for Vendor's use when a problem is
reported. Customer will be responsible for all costs associated with installing and
maintaining this line. Vendor will use this line only with Customer's permission on a per
case basis.
5.12 SUPPORT LIMITATIONS
Vendor agrees to provide support only for Content Management Software provided by
Vendor. Other software used by Customer (word processing, spreadsheet, etc.) is not
included in this Agreement. PC and network operating system software and database
system software is similarly not included, although Vendor will assist Customer in isolating
problems to this software. Also specifically excluded is responsibility for administration,
support, or maintenance of Customer computer network, operating system, or database.
This Agreement does not include hardware maintenance or assistance in diagnosing
hardware problems with the exception that Vendor will assist Customer in determining
whether a problem is software or hardware in nature.
6.00 INSTALLATION, DELIVERY, AND ACCEPTANCE
6.01 DELIVERY
Delivery of the Licensed Software shall be complete when all modules are copied onto the
hardware environment specified and are fully operational and appropriately labeled media
and documentation are presented to Customer as a complete system backup of all software
modules and data. The documentation shall include, but is not limited to, instructions as to
how to completely re -install the contents of the media onto the hardware proposed.
G�1j►�==tK� II.��C 2100 idUrIaL Ir
Acceptance will be based on the following "acceptance criteria": 1) That the Vendor has
delivered and configured the Licensed Software proposed on the Customer -provided,
Vendor -approved hardware [Delivery], 2) The functions and features listed in RFP form
RF2a and subsequently amended perform as stipulated in Vendor's RFP Response
[Acceptance Testing]. Payment is structured in Exhibit A so that the vendor receives final
payment when Acceptance Testing is satisfactorily completed so that concurrent productive
use of all modules is demonstrated to function as proposed and demonstrated by the
Vendor.
Ironpoint Technology, Software License Agreement Page 15 of 23
CITY OF SAN RAFAEL IRONPOINT TECHNOLOGY, INC.
NOVEMBER 21. 2005 APPLICATION SOFTWARE LICENSE/USE AGREEMENT
The Customer may terminate this Agreement, upon written notice effective immediately,
at any time during the Acceptance Testing period per the Evaluation Criteria and
Technical Specifications as specified in the RFP. Additional mutually agreed upon, written
acceptance criteria may be added by the Customer prior to the end of the Acceptance
Testing period. The Customer shall accept the Licensed Software at the close of the
Acceptance Testing period by providing Vendor with written notification of acceptance
unless Vendor fails to meet acceptance criteria stated above.
If the Customer identifies any substantive irregularities in the performance of the Licensed
Software from what was specified by the Customer in its RFP and Vendor's RFP Response
thereto and any subsequent agreement(s), the Customer shall have the right to terminate
this Agreement. At its sole option, however, the Customer may choose any or all of the
following alternatives:
A. The Vendor may be given the opportunity to extend the Acceptance Testing
Period for up to thirty (30) calendar days during which to bring such
irregularities into compliance. If after such time the performance irregularity is
not remedied such that the acceptance criteria have been satisfied, the Customer
may terminate this Agreement, or;
B. If the non-compliant component is a module of the Licensed Software,
Customer may reject the component and only pay for accepted modules, or;
C. At the Customer's sole option, notwithstanding A and B above, Customer may
designate the non-compliant component as a Project to be completed at a
mutually agreeable date. Specifications for the delivery and acceptance for
each such item will be the same as the acceptance provisions stated above and
shall include appropriate due dates. Customer may then close the initial
Acceptance Testing period for items delivered and functioning in accordance
with their specifications, pay for accepted items only, and open new testing
periods for non -delivered items.
In the event the Vendor fails to satisfy the acceptance criteria during the Acceptance
Testing period, the Customer will agree to pay only those delivery, installation,
configuration, conversion, and training costs as specified in the Vendor's RFP Response
and receive a refund on any license fee deposits made to that point. Costs for Licensed
Software removal, additional labor, insurance, etc. will not be paid by the Customer.
6.02.1 ACCEPTANCE TESTING
Once the Vendor(s) has delivered, installed the Licensed Software, configured the
system for operational use, trained the designated Customer System Manager and
one backup person to operate the basic components of the proposed Licensed
Software, and Customer has loaded test data, the Acceptance Testing can begin.
The Acceptance Testing period shall be for 30 calendar days. During the
Acceptance Testing period, the Customer will test all delivered modules by
executing any or all of the features contained in the Feature/Function Checklist
according to the Vendor Compliance Code responses in RFP Response Form R2a.
During this time, the Vendor will provide access (at no additional charge) to a
qualified technician either on-site or via telephone and dial -in modem to assist the
Customer in the testing of the applications.
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If any part of the awarded subsystems should fail (i.e. not perform according to the
Vendor's Compliance score), the Customer may designate that portion as a Project
for delivery at a later date or apply other remedies as specified in 6.02 above.
6.02.2 PAYMENT SCHEDULE
Customer shall pay for Licensed Software and services in this Agreement according
to the payment milestones identified in Exhibit A. Vendor shall submit an invoice
for the appropriate payment milestone and Customer will process the invoice for
payment according to its normal payment processing procedures. If a project
milestone is late due solely to the Customer's failure to complete agreed upon tasks,
Vendor may submit an invoice for such milestone and Customer will process the
invoice for payment according to its normal payment processing procedures.
6.03 APPLICABLE TAXES
Vendor agrees and asserts that the taxable amount for all items subject to applicable local,
state or federal sales, use, excise, personal property or other similar taxes or duties are
included in the "License Fees and Product Cost" column of RFP form RF2 included as
Exhibit B. The Customer will pay taxes on only those items so indicated at the rates
prescribed by law at the time of payment. Taxes based upon net income or any other tax
normally paid by the Vendor shall be the sole responsibility of the Vendor. Items subject
to taxes not indicated in the Vendor's RFP Response as taxable which may subsequently be
charged to the Vendor by any taxing agency with reference to the purchase, lease/purchase
or license included in this Agreement shall be the sole responsibility of the Vendor and will
not be paid by Customer.
6.04 ADDITIONAL CHARGES
Out-of-pocket expenses incurred by the Vendor for travel related, supplies, and other
expenses shall be paid by Customer provided that the expenses have been prior approved
by Customer, and such approval shall not be unreasonably withheld. Such expenses shall
be limited to the lesser of actual or cost quoted in Vendor's RFP Response.
7.00 CUSTOMER RESPONSIBILITIES
7.01 CUSTOMER SUPPORT OF VENDOR
Customer shall furnish to the Vendor priority access to the Customer's system for the
period of time required by the Vendor for installation, testing, training, diagnostics, etc.
Customer shall provide the following resources for Vendor's use in fulfillment of this
Agreement:
A. One qualified Customer staff coordinator assigned to work with the Vendor's
representative on the installation of the Licensed Software, acceptance, training,
conversion and maintenance. Customer representative shall have sufficient
authority to make decisions for Customer consistent with City Council
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CITY OF SAN RAFAEL IRONPOINT TECHNOLOGY, INC.
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direction. Customer understands that Vendor will rely upon a staff member
having such authority.
B. The availability of Customer's personnel upon reasonable request of Vendor to
answer questions and advise Vendor on Customer's facilities, operations and
requirements.
C. Adequate office space at Customer's premises for Vendor personnel.
D. The Customer shall specify conversion format and procedures that the Vendor
shall complete at its expense.
E. Upon completion of installation and training, and once final acceptance is
signed off by the Customer, Customer shall be solely responsible for the
operation and use of the Licensed Software.
8.00 WARRANTY OF PERFORMANCE
8.01 COMPLIANCE WITH STATE AND FEDERAL REPORTING REQUIREMENTS
As long as Customer maintains continuous maintenance and support for the modules
included herein, Vendor shall ensure that all software modules will comply with any and all
then current State and Federal reporting requirements, such that Customer will not be liable
for program flaws which may violate any such requirements. In the event that the State or
Federal government mandates a substantial change in reporting that requires Vendor
programming resources in excess of a person -year of effort, Vendor will provide the
additional programming services at cost and distribute the cost to all then -current licensed
customers. Customer will agree to pay only its pro -rata share of such costs regardless of
whether other Vendor customers participate subject to Customer's procurement policies
and procedures.
8.02 WARRANTY OF PERFORMANCE
Following Customer's acceptance of the Licensed Software and as long as Annual
Maintenance/Support Services are maintained, the Vendor shall warrant that the Licensed
Software will perform in accordance with its specifications as set forth in the
Documentation and Vendor's RFP Response, if properly used in the operating environment
specified in the Documentation. The Vendor warrants that all modules are operable and all
modules are interoperable with each other and the configuration is complete and suitable
for the purpose specified by the Customer in the RFP except as may have been specifically
excluded in the Vendor's RFP Response.
Customer shall promptly provide to Vendor such computer time and services as Vendor
may reasonably require to permit investigation and, if necessary, correction and verification
of error(s).
8.03 YEAR 2000 COMPATIBILITY
The Software will "operate accurately" (as defined below), and will not abruptly end or
provide invalid or incorrect results, before, on, and after January 1, 2000. For purposes
hereof, a failure to "operate accurately" exists if any one or more of the following
Ironpoint Technology, Software License Agreement Page 18 of 23
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NOVEMBER 21, 2005 APPLICATION SOFTWARE LICENSE/USE AGREEMENT
properties or capabilities is lacking: (i) execution of calculations using dates with a four -
digit year; (ii) functionality (both on-line and batch) including, but not limited to, entry,
inquiry, maintenance, and update, to support four -digit year processing; (iii) interfaces and
reports that support four -digit year processing; (iv) successful transition, without human
intervention, into the year 2000 using the correct system date (e.g. 01/04/2000); (v) after
transition to the year 2000, continued processing with a four -digit year without human
intervention; (vi) correct calculation of leap year; and (vii) provision of correct results in
forward and backward data calculation spanning century boundaries, including the
conversion of previous years currently scored as two digits.
8.04 CORRECTION OF ERRORS UNDER THE WARRANTY
At no charge to the Customer, the Vendor will promptly correct technical errors or defects
in the Licensed Software during the warranty period as specified in Section 8.02 of this
Agreement so that the Licensed Software will perform as described in the Documentation
and Vendor's RFP Response.
8.05 ORAL REPRESENTATIONS
No Customer or Vendor employee has the authority to bind either party to any oral
representation or warranty.
8.07 NO DISABLING CODE
Vendor warrants that all Licensed Software does not contain disabling or corrupting code
which would either prevent productive use of the software during the term of this
Agreement or that would damage or destroy Customer's data.
9.00 LIABILITY, INDEMNIFICATION AND DEFAULT
9.01 LIABILITY, INDEMNIFICATION AND DEFAULT
Customer shall in no event be liable to the Vendor or other person claiming damages as a
result of the use of the Licensed Software and Documentation, for any damages whether
direct or indirect, special or general, consequential, or incidental or arising from loss of
profits.
The Vendor agrees to indemnify, defend, and hold harmless the Customer and its officers,
directors, shareholders, employees, and agents (the "Customer Indemnified Parties") from
any and all claims, demands, liabilities, and costs, including attorney's fees, arising out of
or relating to (i) any actual infringement of a third -party's intellectual property or (ii) the
gross negligence or willful misconduct of any employee or agent of the Vendor. This
indemnity obligation shall survive the expiration, cancellation or termination of this
Agreement. Notwithstanding the foregoing, the Customer expressly waives, releases, and
agrees that neither the Vendor nor any of the Vendor Indemnified Parties shall have any
liability for any individual's or entity's lost business, direct damages, incidental or
consequential damages, or any other claim arising out of or related to the use or
implementation of the software product provided or developed as part of this Agreement.
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After the successful completion of the acceptance period, failure by Customer or Vendor to
comply with any term or condition under this Agreement shall entitle the other party to
give the party in default written notice requiring it to make good such default. Failure to
make good such notified default within thirty (30) calendar days of such notice shall
constitute breach of contract by the defaulting party and grounds for termination of this
Agreement.
9.02 BANKRUPTCY/SUPPORT CESSATION
In the event of the institution of proceedings by or against Vendor under federal or state
bankruptcy laws and assignment or receivership for the benefit of creditors, Customer shall
have the right (at no additional cost) to a complete and documented copy of all related
source code corresponding to the then current released version of the Licensed Software
(for internal use and not for resale) shall be entitled to precedence in any bankruptcy
proceedings and stand before any trustee's claims for the benefit of creditors. In the event
that the Vendor ceases to provide support for the Licensed Software, the Customer shall
have the same rights as if the Vendor had declared bankruptcy.
9.03 INSURANCE
Vendor, at its own cost and expense, shall purchase and maintain during the life of this
Agreement a comprehensive liability policy that shall protect Vendor from claims for
property damage and injuries to persons, including accidental death, and name the
Customer as an additional insured under said policy in not less than the following amounts:
• General Liability including personal injury and property damage in the amount of
$1,000,000.
• Automobile Liability, all non -owned and hired automobiles used in connection
with this Agreement, in the amount of $1,000,000 for combined single limit.
In addition, the Customer shall be named as additional insured and provide Customer with
and endorsement on such policies and shall be notified by the insurance carrier of any
change in or cancellation of coverage. Vendor further agrees during the life of this
Agreement to maintain, at vendor's expense, all necessary insurance for its employees,
including, but not limited to, Workman's Compensation, disability, and unemployment
insurance.
Vendor shall furnish a certificate of insurance countersigned by an authorized agent of the
insurance carrier on a form of the insurance carrier setting forth the general provisions of the
insurance coverage. The countersigned certificate shall name the Customer as an additional
insured under the policy. The certificate shall contain a statement of obligation on the part of the
insurance carrier to notify Customer of any material change, cancellation or termination of the
coverage at least thirty (30) days in advance of the effective date of any such material change. The
certificate shall be furnished by Vendor to Customer prior to execution of this Agreement by
Customer.
9.04 LIMITATION OF LIABILITY
In no event will the Vendor be liable for lost business, direct, special, incidental, or
consequential damages to the Customer or any other person or entity (including, without
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CITY OF SAN RAFAEL IRONPOINT TECHNOLOGY, INC.
NOVEMBER 21, 2005 APPLICATION SOFTWARE LICENSE/USE AGREEMENT
limitation, damages for loss of business information or other pecuniary loss), however
caused, whether for breach of warranty, contract, tort (including negligence, strict liability,
or otherwise) arising out of the quality, condition, or use of the software. Customer assumes
all responsibility for the selection of the Vendor's software to achieve Customer's intended
results and for the use of and results obtained from the software. The Vendor expressly
disclaims responsibility for all liabilities resulting from its use. In no event will the Vendor be
liable for any amount that exceeds the amount paid by the Customer for the software and
Annual Maintenance/Support Services fees in the previous 12 months.
10.00 GENERAL PROVISIONS
10.01 ASSIGNMENT
This Agreement may be assigned by Vendor to another person or organization which
acquires all or substantially all of the assets of Vendor or Vendor's assets are transferred
through a merger or stock sale, provided that all the responsibilities and obligations under
this Agreement are assumed by the acquiring person or organization. Any other assign-
ment by Vendor shall be made only with the prior written consent of Customer which
consent shall not be unreasonably withheld provided that in the event of such assignment
the proposed assignee has agreed to be fully responsible for Vendor obligations under this
Agreement.
10.02 GOVERNING LAW
This Agreement shall be governed by and construed in accordance with the laws of the
state of California.
10.03 ENTIRE AGREEMENT/AMENDMENTS
This Agreement constitutes the entire understanding of the parties with respect to the
matter contained herein. There are no promises, covenants or undertakings other than those
expressly set forth herein.
This Agreement may not be amended except by writing signed by authorized
representatives of Customer and Vendor and approved by Customer's City Council.
If any of the provisions of this Agreement are declared to be invalid, such provisions shall
be severed from this Agreement and the other provisions hereof shall remain in full force
and effect.
10.04 CONSTRUCTION
A term or condition of this Agreement can be waived only by written consent of both
parties.
Title and paragraph headings contained in this Agreement are for convenient reference and
do not constitute part of this Agreement and shall not affect the interpretation of this
Agreement.
This Agreement shall be binding upon and inure to the benefit of the parties to this
Agreement and their respective successors and assigns.
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10.05 SERVICE OF NOTICE
Any notice required or permitted to be sent under this Agreement shall be delivered by
hand or mailed by registered mail, return receipt requested, to the addresses of the parties
first set forth in this Agreement.
Vendor: Joshua Bixby
Ironpoint Technology, Inc.
Suite 220, 800 West Pender Street
Vancouver, BC. Canada
V6C 2V6
Customer: Ken Nordhoff
City of San Rafael
P.O. Box 151560
San Rafael, CA 94915-1560
10.06 BUSINESS LICENSE
Vendor must maintain an active City Business License through the term of this agreement
as long as this License Agreement or related Software Support Agreement is in force.
10.07 COST OF ATTORNEY'S FEES
The prevailing party in any action brought to enforce the terms and conditions of this
agreement, or arising out of the performance of this agreement, shall be entitled to
recover from the losing party the reasonable costs (including claims administration) and
attorney's fees expended in connection with such action.
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SIGNATURES:
IN WITNESS WHEREOF, the parties have executed this Agreement as of the day,
month and year first above written.
CITY OF SAN RAFAEL
City Manager
ATTEST:
Ci clerk
APPROVED AS TO FORM:
City Attorney
IRONPOINT TECHNOLOGY, INC.
By:
a% r4 c)A— i X T
Title.
Ironpoint Technology, Software License Agreement Page 23 of 23
CITY OF SAN RAFAEL NPOINT TECHNOLOGY, INC.
APPLICATION SOFTWARE LICENSE/USE AGREEMENT - EXHIBIT A 1: PROJECT AND PAYMENT SCHEDULE
Exhibit Al
Maint
100%
Proiect Pavment Schedule
I Event
Date
Payment %*
Software
Svcs
Hosting
Dedicated Hosting Package
12/1/2005 40%
100%
100%(12
Installation Completion
months @
$400US/mo
nth)
Preliminary Training
12/5/2005
100%
Monitoring and Support
12/5-12/12
100%
Acceptance Test Complete
12/12/2005 200`o
Project Planning
12/12-1/2
100%
Project Management
100%
Web Design & Training
1/2-1/6
100%
Application Training
1/9-1/13
1000.0
Design Complete and
1/27 40°o
100%
Accepted
Maintenance
7/27
* Payment is only made for delivered, operational items.
Exhibit Al
Maint
100%