HomeMy WebLinkAboutSungard - 2007 AgreementBETWEEN
SunGard Pentamation Inc.
a Pennsylvania Corporation
with Headquarters at:
3 West Broad Street, Suite 1
Bethlehem, PA 18018
Phone #: (610) 691 -3616
Fax #: (610) 691 -1031
( "SunGard ")
AND
City of Gilroy
7351 Rosanna Street
Gilroy, CA 95020
Phone #: (408) 846 -0272
Fax #: (408) 846 -0421
Attn: David Chulick
( "Customer ")
By the signatures of their duly authorized representatives below, SunGard and Customer,
intending to be legally bound, agree to all of the provisions of this Agreement and all
Schedules, Appendices, Exhibits, and /or Addenda to this Agreement.
[SunGard]
PRINT NAME: Donald V. Appleton
PRINT TITLE: President and C.O.O.
DATE SIGNED: June 30, 2005
06/05
SUNGARD
[Customer]
DATE SIGNED: February 26, 9007
CONTENTS
DEFINITIONOF TERMS ............................................................................................... ............................... II
SECTION1 — LIMITED LICENSE ................................................................................. ............................... 1
SECTION 2 — SUNGARD'S OTHER OBLIGATIONS .................................................... ............................... 1
SECTION 3 — CUSTOMER'S OTHER OBLIGATIONS ................................................. ............................... 1
SECTION 4 — WARRANTIES AND LIMITATIONS ........................................................ ............................... 2
SECTION 5 — CONFIDENTIALITY, OWNERSHIP AND RESTRICTIVE COVENANT . ............................... 4
SECTION6 — TERMINATION ....................................................................................... ............................... 5
SECTION 7 — CUSTOM PROGRAMMING SERVICES ................................................ ............................... 7
SECTION8 — OTHER PROVISIONS ............................................................................ ............................... 8
APPENDIX 1 — SOURCE CODE
City of Gilroy, CA
DEFINITION OF TERMS
As used in this Agreement, the following terms have the following meanings:
"Account" means a single and unique combination of database and Software.
2. "Affiliate," whether capitalized or not, means, with respect to a specified Person, any Person which
directly or indirectly controls, is controlled by, or is under common control with the specified person
as of the date of this Agreement, for as long as such relationship remains in effect.
3. "Confidential Information" means all business information disclosed by one party to the other in
connection with this Agreement unless it is or later becomes publicly available through no fault of
the other party or it was or later is rightfully developed or obtained by the other party from
independent sources free from any duty of confidentiality. Without limiting the generality of the
foregoing, Confidential Information shall include Customer's data and shall include SunGard's
Proprietary Items. Confidential Information shall include the terms of this Agreement, but not the
fact that this Agreement has been signed, the identity of the parties hereto or the identity of the
products licensed hereunder.
4. "Concurrent User" means the highest total number of users making simultaneous use of the
Software at any time during a calendar year period, whether use is via modem, direct connection,
LAN connection, or intranet connection.
5. "Copy," whether capitalized or not, means any paper, disk, tape, film, memory device, or other
material or object on or in which any words, object code, or other symbols are written, recorded or
encoded, whether permanent or transitory.
6. "Documentation" means SunGard's standard user guides and manuals as delivered with the
Software and Software Updates and on -line help, as updated and amended from time to time,
provided by SunGard to assist Customer with the use of Software.
7. "Execution Date" means the latest date shown on the signature line of this Agreement.
8. "Export Laws" means all laws, administrative regulations, and executive orders of any Applicable
Jurisdiction relating to the control of imports and exports of commodities and technical data,
software and related property, use or remote use of software and related property, or registration of
this Agreement, including the Export Administration Regulations of the U.S. Department of
Commerce, and the International Traffic in Arms Regulations of the U.S. Department of State.
"Applicable Jurisdiction" means the U.S., and any other jurisdiction where any Proprietary Items
will be located or from where any Proprietary Items will be accessed under this Agreement.
9. "Good Faith Dispute" means a good faith dispute by Customer of certain amounts invoiced
under this Agreement. A Good Faith Dispute will be deemed to exist only if (1) Customer has
given written notice of the dispute to SunGard promptly after receiving the invoice and (2) the
notice explains Customer's position in reasonable detail. A Good Faith Dispute will not exist as to
an invoice in its entirety merely because certain amounts on the invoice have been disputed.
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10. "Including" means including but not limited to.
11. "Initial Installation or Initial Software Installation" means the first instance of Software
installation or Software loading onto the computer system from which it will operate.
12. "Latest Software Update" means those Software Updates which SunGard has made generally
available to its Customers within the preceding twelve months.
13. "New Product' means a set of functionality available to be licensed to Customer by SunGard
which was not previously licensed to Customer either because the functionality was not available
or Customer chose not to license it.
14. "Person," whether capitalized or not, means any individual, sole proprietorship, joint venture,
partnership, corporation, company, firm, bank, association, cooperative, trust, estate, government,
governmental agency, regulatory authority, or other entity of any nature.
15. "Proprietary Items" means, collectively, the Software and Documentation, the object code and the
source code for the Software, the visual expressions, screen formats, report formats and other
design features of the Software, all ideas, methods, algorithms, formulae and concepts used in
developing and /or incorporated into the Software or Documentation, all future modifications,
revisions, updates, refinements, improvements and enhancements of the Software or
Documentation, all derivative works (as such term is used in the U.S. copyright laws) based upon
any of the foregoing, and all copies of the foregoing.
16. "Software" means SunGard's proprietary application software identified in Appendix 1 of this
Agreement, known as PLUS SERIES.
17. "Software Update" means Software revisions and updates to the Software which SunGard, in its
sole discretion, incorporates into the Software as a Software Update per Section 10 —Application
Software Maintenance and Support.
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1. LIMITED LICENSE
1.1. Grant. SunGard grants to Customer a personal, non - transferable, non - exclusive,
perpetual, license to use, in accordance with this Agreement, the Software identified on
Appendix 1 and its related Documentation as the Software and Documentation may be
revised and updated in accordance with this Agreement.
1.2 Scope. Customer may use the Software and Documentation only in the ordinary course
of its business operations and for its own business purposes, subject to the use
restrictions as set forth in Section 6.3. Access to and use of the Software by Customer
shall be limited to the Number of Concurrent Users and /or other parameters as specified,
stated on Appendix 1 (collectively, "Scope of Use "), subject to increase by amendment(s) to
such parameters. Customer may copy and use the Software for inactive back -up and
disaster recovery purposes. Customer may copy the Documentation to the extent
reasonably necessary for use of the Software under this Agreement.
SUNGARD'S OTHER OBLIGATIONS
2.1 Ongoing Maintenance and Support Services. SunGard Pentamation will provide
maintenance and support services to Customer as documented in Section 8, with the
additional provisions outlined in Appendix 1.
3. CUSTOMER'S OTHER OBLIGATIONS
3.1 Data Security. If the Software or data maintained by the Software is accessible through
the Internet or other networked environment, Customer shall maintain, in connection with
the Software, adequate technical and procedural access controls and system security
requirements and devices, necessary for data privacy, confidentiality, integrity,
authorization, authentication and non - repudiation and virus detection and eradication. To
the extent that Customer's Affiliates or Customers have access to the Software through
the Internet or other networked environment, Customer shall maintain agreements with
such end -users that adequately protect the confidentiality and intellectual property rights
of SunGard in the Software and Documentation, and disclaim any liability or responsibility
of SunGard with respect to such end - users.
3.2 Access to Facilities and Employees. Customer shall provide to SunGard access to the
Customer's facilities, equipment and employees, and shall otherwise cooperate with
SunGard, as reasonably necessary for SunGard to perform its installation, training,
support and other obligations under this Agreement. Customer shall devote all
equipment, facilities, personnel and other resources reasonably necessary to (a) install
the Software, (b) be trained in the use of the Software and (c) begin using the Software in
production on a timely basis as contemplated by this Agreement.
3.3 Remote Access. Customer shall permit SunGard, at SunGard's option, to remotely
access, per the method described in Section 8, the Software for the purpose of providing
maintenance and support services to Customer.
3.4 Customer Operation of Software. Customer shall be exclusively responsible for the
supervision, management, operation and control of its use of the Software, including but
not limited to; (1) establishing adequate backup plans in the event of computer or
Software malfunction or disaster, (2) implementing sufficient procedures and checkpoints
City of Gilroy, CA
to satisfy Customer's requirements for security and accuracy of input and output data as
well as restart and recovery in the event of malfunction or disaster, (3) informed use of
output data insofar as technical expertise or professional judgment is required and (4)
security, maintenance and distribution of system passwords.
4. WARRANTIES AND LIMITATIONS
4.1 Performance. SunGard warrants to Customer that the Software, as and when delivered
to Customer by SunGard and when properly used for the purpose and in the manner
specifically authorized by this Agreement, will perform as described in the Documentation
in all material respects. SunGard's only obligation under this warranty is to correct any
failure to so perform in accordance with SunGard's obligations under the maintenance
and support provisions of this Agreement. This warranty shall terminate one year after
the Execution Date.
4.2 Right to License; No Infringement. SunGard warrants to Customer that it has the full
legal right to grant to Customer the license granted under this Agreement, and that the
Software and Documentation, as and when delivered to Customer by SunGard and when
properly used for the purpose and in the manner specifically authorized by this
Agreement, do not infringe upon any United States patent, copyright, trade secret or other
proprietary right of any Person. SunGard shall defend and indemnify Customer against
any third party claim to the extent attributable to a violation of the foregoing warranty.
SunGard shall have no obligation under this Section 4.2 unless Customer promptly gives
written notice to SunGard after any applicable infringement claim is initiated against
Customer and allows SunGard to have sole control of the defense or settlement of the
claim. The remedies provided in this Section 4.2 are the sole remedies for a breach of the
warranty contained in this Section 4.2. If any applicable infringement claim is initiated, or
in SunGard's sole opinion is likely to be initiated, then SunGard shall have the option, at
its expense, to:
4.2.1 modify or replace all or the infringing part of the Software or Documentation so
that it is no longer infringing, provided that the Software functionality does not
change in any material adverse respect; or
4.2.2 procure for Customer the right to continue using the infringing part of the
Software or Documentation; or
4.2.3 remove all or the infringing part of the Software or Documentation, and refund to
Customer the applicable Software less a reasonable rental charge equal to one-
sixtieth (1/60) of the initial license fee for each month of use, in which case the
Agreement shall terminate with respect to the Software or part thereof removed.
4.3 Customer Material. Customer warrants to SunGard that Customer has the full legal right
to grant to SunGard the right to use the designs, plans, specifications or other materials
provided by or on behalf of Customer for inclusion in the Software or the Documentation
( "Customer Material ") and that the Customer Material does not infringe upon any United
States patent, copyright, trade secret or other proprietary right of any Person. Customer
shall indemnify and defend SunGard (and any SunGard Affiliates providing software or
services under this Agreement) against any third party claim to the extent attributable to
(a) a breach of the foregoing warranty or (b) an infringement of a United States patent,
copyright, trade secret or other proprietary right of any Person arising from a modification
of the Software or Documentation by Customer (or a third party permitted by Customer to
make such modification).
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4.4 Exclusion for Unauthorized Actions and Results of Use. SunGard shall have no
liability under any provision of this Agreement with respect to any performance problem,
claim of infringement or other matter to the extent attributable to any unauthorized or
improper use or modification of the Software, any unauthorized combination of the
Software with other software, any use of any version of the Software other than the Latest
Software Updates, any Third Party Product, any act or omission by Customer, its Affiliates
or its customers, or any breach of this Agreement by Customer. Customer is solely
responsible for the results obtained from the use of the Software.
4.5 Force Majeure. Except with respect to Customer's payment obligations hereunder,
neither party shall be liable for, nor shall either party be considered in breach of this
Agreement due to any failure to perform its obligations under this Agreement as a result
of a cause beyond its control, including any act of God or a public enemy, act of any
military, civil or regulatory authority, change in any law or regulation, fire, flood,
earthquake, storm or other like event, disruption or outage of communications (including
the Internet or other networked environment), power or other utility, labor problem,
unavailability of supplies or any other cause, whether similar or dissimilar to any of the
foregoing, which could not have been prevented by the non - performing party with
reasonable care.
4.6 Disclaimer. EXCEPT AS EXPRESSLY STATED IN SECTION 4.1 OF THIS
AGREEMENT, THE SOFTWARE AND DOCUMENTATION IS PROVIDED "AS IS."
WITH RESPECT TO THE SOFTWARE, DOCUMENTATION, THE SERVICES
PROVIDED UNDER THIS AGREEMENT OR ANY OTHER MATTER PERTAINING TO
THIS AGREEMENT AND EXCEPT AS EXPRESSLY STATED IN SECTION 5.1 OF THIS
AGREEMENT, SUNGARD MAKES NO REPRESENTATIONS OR WARRANTIES, ORAL
OR WRITTEN, EXPRESS OR IMPLIED, ARISING FROM COURSE OF DEALING,
COURSE OF PERFORMANCE, USAGE OF TRADE, OR OTHERWISE, INCLUDING
IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR
PURPOSE, TITLE, NON - INTERFERENCE, OR NON - INFRINGEMENT. SUNGARD
MAKES NO REPRESENTATIONS OR WARRANTIES, NOR SHALL SUNGARD HAVE
ANY LIABILITY WITH RESPECT TO, ANY THIRD PARTY PRODUCTS OR SERVICES.
4.7 Limitations. EXCEPT FOR A THIRD PARTY CLAIM UNDER SECTION 4.2 OF THIS
AGREEMENT, SUNGARD'S TOTAL LIABILITY UNDER THIS AGREEMENT SHALL
UNDER NO CIRCUMSTANCES EXCEED THE INITIAL SUNGARD SOFTWARE
LICENSE FEES ACTUALLY PAID BY CUSTOMER TO SUNGARD UNDER THIS
AGREEMENT.
4.8 Consequential Damage Exclusion. UNDER NO CIRCUMSTANCES SHALL
SUNGARD (OR ANY OF ITS AFFILIATES PROVIDING SOFTWARE OR SERVICES
UNDER THIS AGREEMENT) BE LIABLE TO CUSTOMER OR ANY OTHER PERSON
FOR LOST REVENUES, LOST PROFITS, LOSS OF BUSINESS, OR ANY INCIDENTAL,
INDIRECT, EXEMPLARY, CONSEQUENTIAL, SPECIAL OR PUNITIVE DAMAGES OF
ANY KIND, INCLUDING SUCH DAMAGES ARISING FROM ANY BREACH OF THIS
AGREEMENT OR ANY TERMINATION OF THIS AGREEMENT, WHETHER SUCH
LIABILITY IS ASSERTED ON THE BASIS OF CONTRACT, TORT (INCLUDING
NEGLIGENCE OR STRICT LIABILITY), OR OTHERWISE AND WHETHER OR NOT
FORESEEABLE, EVEN IF SUNGARD HAS BEEN ADVISED OR WAS AWARE OF THE
POSSIBILITY OF SUCH LOSS OR DAMAGES.
4.9 Open Negotiation. CUSTOMER AND SUNGARD HAVE FREELY AND OPENLY
NEGOTIATED THIS AGREEMENT, INCLUDING THE PRICING, WITH THE
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KNOWLEDGE THAT THE LIABILITY OF THE PARTIES IS TO BE LIMITED IN
ACCORDANCE WITH THE PROVISIONS OF THIS AGREEMENT.
4.10 Other Limitations. The warranties made by SunGard in this Agreement, and the
obligations of SunGard under this Agreement, run only to Customer and not to its
Affiliates, its customers or any other Persons. Under no circumstances shall any Affiliate
or customer of Customer or any other Person be considered a third party beneficiary of
this Agreement or otherwise entitled to any rights or remedies under this Agreement, even
if such Affiliates, customers or other Persons are provided access to the Software or data
maintained in the Software via the Internet or other networked environment. Customer
shall have no rights or remedies against SunGard except as specifically provided in this
Agreement. No action or claim of any type relating to this Agreement may be brought or
made by Customer more than one (1) year after Customer first has knowledge of the
basis for the action or claim.
5. CONFIDENTIALITY, OWNERSHIP AND RESTRICTIVE COVENANT
5.1 Disclosure Restrictions. All Confidential Information of one party ( "Disclosing Party ") in
the possession of the other ( "Receiving Party "), whether or not authorized, shall be held in
strict confidence, and the Receiving Party shall take all steps reasonably necessary to
preserve the confidentiality thereof. The Disclosing Party's Confidential Information shall
not be used or disclosed by the Receiving Party for any purpose except as necessary to
implement or perform this Agreement, or except as required by law, provided that the
other party is given a reasonable opportunity to obtain a protective order. The Receiving
Party shall limit its use of and access to the Disclosing Party's Confidential Information to
only those of its employees whose responsibilities require such use or access. The
Receiving Party shall advise all such employees, before they receive access to or
possession of any of the Disclosing Party's Confidential Information, of the confidential
nature of the Confidential Information and require them to abide by the terms of this
Agreement. The Receiving Party shall be liable for any breach of this Agreement by any
of its employees or any other Person who obtains access to or possession of any of the
Disclosing Party's Confidential Information from or through the Receiving Party.
5.2 SunGard's Proprietary Items, Ownership Rights. The Proprietary Items are trade
secrets and proprietary property of SunGard, having great commercial value to SunGard.
All Proprietary Items provided to Customer under this Agreement are being provided on a
strictly confidential and limited use basis. Customer shall not, directly or indirectly,
communicate, publish, display, loan, give or otherwise disclose any Proprietary Item to
any Person, or permit any Person to have access to or possession of any Proprietary
Item. Title to all Proprietary Items and all related patent, copyright, trademark, trade
secret, intellectual property and other ownership rights shall be and remain exclusively
with SunGard, even with respect to such items that were created by SunGard specifically
for or on behalf of Customer. This Agreement is not an agreement of sale, and no title,
patent, copyright, trademark, trade secret, intellectual property or other ownership rights
to any Proprietary Items are transferred to Customer by virtue of this Agreement. All
copies of Proprietary Items in Customer's possession shall remain the exclusive property
of SunGard and shall be deemed to be on loan to Customer during the term of this
Agreement.
5.3 Use Restrictions. Customer shall not do, attempt to do, nor permit any other Person to
do, any of the following:
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5.3.1 use any Proprietary Item for any purpose, at any location or in any manner not
specifically authorized by this Agreement; or
5.3.2 make or retain any Copy of any Proprietary Item except as specifically authorized
by this Agreement; or
5.3.3 create or recreate the source code for the Software, or re- engineer, reverse
engineer, decompile or disassemble the Software; or
5.3.4 modify, adapt, translate or create derivative works based upon the Software or
Documentation, or combine or merge any part of the Software or Documentation
with or into any other software or documentation not as otherwise expressly
provided by this Agreement; or
5.3.5 refer to or otherwise use any Proprietary Item as part of any effort either (i) to
develop a program having any functional attributes, visual expressions or other
features similar to those of the Software, or (ii) to compete with SunGard; or
5.3.6 remove, erase or tamper with any copyright or other proprietary notice printed or
stamped on, affixed to, or encoded or recorded in any Proprietary Item, or fail to
preserve all copyright and other proprietary notices in any Copy of any Proprietary
Item made by Customer; or
5.3.7 sell, market, license, sublicense, distribute or otherwise grant to any Person,
including any outsourcer, vendor, consultant or partner, any right to use any
Proprietary Item, whether on Customer's behalf or otherwise; or
5.3.8 use the Software to conduct any type of service bureau or time - sharing operation
or to provide remote processing, network processing, network telecommunications
or similar services to any Person, whether on a fee basis or otherwise, unless
otherwise expressly provided in this Agreement.
5.4 Notice and Remedy of Breaches. Each party shall promptly give written notice to the
other of any actual or suspected breach by it of any of the provisions of this Section 5,
whether or not intentional, and the breaching party shall, at its expense, take all steps
reasonably requested by the other party to prevent or remedy the breach.
5.5 Enforcement. Each party acknowledges that the restrictions in this Agreement are
reasonable and necessary to protect the other's legitimate business interests. Each party
acknowledges that any breach of any of the provisions of this Section 6 shall result in
irreparable injury to the other for which money damages could not adequately
compensate. If there is a breach, then the injured party shall be entitled, in addition to all
other rights and remedies which it may have at law or in equity, to have a decree of
specific performance or an injunction issued by any competent court, requiring the breach
to be cured or enjoining all Persons involved from continuing the breach. The existence
of any claim or cause of action that a party or any other Person may have against the
other party shall not constitute a defense or bar to the enforcement of any of the
provisions of this Section 5.
6. TERMINATION
6.1 Termination by Customer. Customer may immediately terminate this Agreement, by
giving written notice of termination to SunGard, upon the occurrence of any of the
following events:
6.1.1 SunGard breaches any of its material obligations under this Agreement and does
not cure the breach within ninety (90) days (provided that the breach is
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susceptible to cure) (or such other time period as may be reasonable under the
circumstances) after Customer gives written notice to SunGard describing the
breach in reasonable detail.
6.1.2 SunGard (or a surviving company in the event of a merger or sale of SunGard)
dissolves or liquidates or otherwise discontinues all or a significant part of its
business operations. Notwithstanding the foregoing, SunGard reserves the right
to outsource professional services which will not be deemed grounds for
Customer termination hereunder.
6.2 Termination by SunGard. SunGard may immediately terminate this Agreement, by
giving written notice of termination to Customer, upon the occurrence of any of the
following events:
6.2.1 Except for Customer's failure to pay any amount payable with respect to
Ongoing Maintenance and Support fees, Customer fails to pay to SunGard,
within ten (10) days after SunGard makes written demand therefor, any past -due
amount payable under this Agreement (including interest thereon) that is not the
subject of a Good Faith Dispute, or
6.2.2 Customer breaches any of its other material obligations under this Agreement
and does not cure the breach within thirty (30) days (provided that the breach is
susceptible to cure) (or such other time period as may be reasonable under the
circumstances) after SunGard gives written notice to Customer describing the
breach in reasonable detail, or
6.2.3 Customer dissolves or liquidates or otherwise discontinues all or a significant
part of its business operations.
6.3 Expiration of Term. Unless otherwise stated on Appendix 1 of this Agreement, the
Software specified on Appendix 1 shall have a perpetual term from the Delivery Date for
such Software unless and until terminated in accordance with this Section 6.
6.4 Effect of Termination.
6.4.1 Upon the effective date of a termination of the maintenance and support
services by SunGard or Customer, or at anytime when Customer has failed to
pay the annual maintenance and support fees required pursuant to Section 4.1
( "Ongoing Maintenance and Support Termination Date "), (a) SunGard shall
discontinue providing all ongoing maintenance and support services, including
SunGard's obligation under Section 2.1, (b) any SunGard warranties and
indemnities under this Agreement shall cease to apply for the period after the
Ongoing Maintenance and Support Termination Date, and (c) SunGard shall
have no liability with respect to Customer's use of the Software or Services after
the Ongoing Maintenance and Support Termination Date.
6.4.2 Upon a termination or expiration of this Agreement, whether under this Section 9
or otherwise, Customer shall: (a) discontinue all use of all affected Software and
Documentation, (b) promptly return to SunGard all copies of the affected
Software and Documentation and any other affected Proprietary Items then in
Customer's possession, and (c) give written notice to SunGard certifying that all
copies of the affected Software and Documentation have been permanently
deleted from its computers. Customer shall remain liable for all payments due to
SunGard with respect to the period ending on the date of termination. The
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provisions of Sections 4, (except 4.1), 5 and 9 shall survive any termination of
this Agreement, whether under this Section 6 or otherwise.
7. CUSTOM PROGRAMMING SERVICES
7.1 General
7.1.1 SunGard offers custom programming as an optional service to the Customer.
When the Customer requests the service, SunGard will provide written
specifications and a fixed cost estimate for the work to be performed. The
Customer is granted a non - exclusive, non - transferable perpetual license to the
customized software and source program code.
7.1.2 An annual maintenance and support service for custom software is provided at
SunGard's current annual percentage of the standard charge for programming
the custom software. This maintenance and support service provides on -going
telephone support, bug fixes, and upward migration to new releases for custom
software.
7.1.3 SunGard retains ownership of all custom- developed software and may, at its
discretion, include the software in future releases of standard products.
7.2 SunGard Responsibilities
7.2.1 SunGard will provide a written cost estimate for the work to be performed subject
to a not -to- exceed 10% variance. This estimate will be based on mutually agreed
to specifications.
7.2.2 SunGard will install the software or provide instructions for Customer installation.
7.2.3 SunGard will provide telephone instruction in the use and features of the custom -
developed software.
7.2.4 SunGard will provide standard programmer documentation.
7.2.5 SunGard will test all modifications for anticipated conditions using test data or
data provided by the Customer.
7.2.6 SunGard will provide source code for all custom - developed programs.
7.2.7 SunGard will warrant software to perform as documented in the written
specifications.
7.2.8 SunGard will provide phone and technical support as well as any additional
programming to implement the custom- developed software in a minor release of
a standard application software product.
7.3 Customer Responsibilities
7.3.1 Customer will review SunGard- provided specification documents for errors and
omissions. After programming has started, project changes due to policy
change, or incomplete, or erroneous specifications may increase the cost of the
project.
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7.3.2 Customer will test all custom - developed software after installation on the
Customer's hardware before running in a "live" production environment.
7.3.3 Customer will reimburse SunGard for all reasonable travel and living expenses if
a site visit is required.
7.3.4 Customer will retain a copy of the modified source code on the Customer's
system in the event future modifications are required.
7.4 Acceptance and Payment - Customer shall have a 45 -day period immediately following
delivery of the custom programming project to test and verify that it functions in
accordance with the specifications. Any defects identified by Customer shall be reported
to SunGard for review and correction. If no defects are reported, payment is due at the
end of the 45 -day testing period. If defects are discovered and reported to SunGard,
payment is due as soon as defect(s) are corrected.
8. OTHER PROVISIONS
8.1 Notice. All notices, consents and other communications under or regarding this
Agreement shall be in writing and shall be deemed to have been received on the earlier
of the date of actual receipt, the third business day after being mailed by first class
certified air mail, or the first business day after being sent by a reputable overnight
delivery service. Any notice may be given by facsimile, provided that a signed written
original is sent by one of the foregoing methods within twenty -four (24) hours thereafter.
Customer's address for notices is 7351 Rosanna Street, Gilroy, CA 95020.
SunGard's address for notices is SunGard Pentamation Inc., 3 West Broad Street,
Suite 1, Bethlehem, PA 18018 Attention: Contract Administration. Either party may
change its address for notices by giving written notice of the new address to the other
party in accordance with this Section 8.1.
8.2 Parties in Interest.
8.2.1 This Agreement shall bind, benefit and be enforceable by and against
SunGard and Customer and, to the extent permitted hereby, their respective
successors and assigns.
8.2.2 Customer shall not assign this Agreement or any of its rights hereunder, nor
delegate any of its obligations hereunder, without SunGard's prior written
consent, except that such consent shall not be required in the case of an
assignment to (i) a purchaser of or successor to substantially all of
Customer's business (unless such purchaser or successor is a software, data
processing or computer services vendor that is a competitor of SunGard, its
parent company or any of its Affiliates) or (ii) an Affiliate of Customer,
provided that the scope of each license granted under this Agreement does
not change and Customer guarantees the obligations of the assignee. Any
assignment by Customer in breach of this Section shall be void.
8.2.3 Any express assignment of this Agreement, any change in control of
Customer, any acquisition of additional business by Customer (by asset
acquisition, merger or otherwise by operation of law), and any assignment by
merger or otherwise by operation of law, shall constitute an assignment of
this Agreement by Customer for purposes of this Section 8.2 ( "Customer
Assignment "). Customer shall give written notice to SunGard at least thirty
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(30) days before a Customer Assignment certifying the expected use of the
Software to process any additional business related to such Customer
Assignment ( "Additional Business "). If any Customer Assignment occurs,
Customer may continue to process its business to the extent it existed before
such Customer Assignment, but Customer may not use the Software to
process any Additional Business until and unless Customer has paid to
SunGard an Additional Business fee, to be negotiated at the time of the
Customer Assignment. Any use of the Software to process any Additional
Business before the payment of such fee shall be deemed a material breach
of this Agreement. Customer shall promptly complete and return to SunGard
periodic certifications which SunGard, in its sole discretion, may from time to
time send to Customer, certifying the actual use of the Software to process
any Additional Business.
8.3 Export Laws and Use Outside of the United States. Customer shall comply with the
Export Laws. Customer shall not export or re- export directly or indirectly (including via
remote access) any part of the Software or Confidential Information to any Applicable
Jurisdiction to which a license is required under the Export Laws without first obtaining a
license.
8.4 Relationship. The relationship between the parties created by this Agreement is that of
independent contractors and not partners, joint venturers or agents.
8.5 Entire Understanding. This Agreement, which includes and incorporates the
Appendices, and any other schedules, exhibits and addenda hereto states the entire
understanding between the parties with respect to its subject matter, and supersedes all
prior proposals, marketing materials, negotiations and other written or oral
communications between the parties with respect to the subject matter of this
Agreement.
8.6 Conflicts. In the event of any conflict between this Agreement and the Appendices, the
terms of the Appendices shall govern.
8.7 Modification and Waiver. No modification of this Agreement, and no waiver of any
breach of this Agreement, shall be effective unless in writing and signed by an
authorized representative of the party against whom enforcement is sought. This
Agreement may not be modified or amended by electronic means without written
agreement of the parties with respect to formats and protocols. No waiver of any
breach of this Agreement, and no course of dealing between the parties, shall be
construed as a waiver of any subsequent breach of this Agreement.
8.8 Audit. SunGard may, at its expense and by giving reasonable advance written notice to
Customer, enter Customer locations during normal business hours and audit the
number of copies of the Software and Documentation in Customer's possession, the
Scope of Use and information pertaining to Customer's compliance with the provisions
of Sections 1.1, 3.1, 5.2, 5.3 and 8.2. If SunGard discovers that there is an
unauthorized Scope of Use or that Customer is not in compliance with the provisions of
Sections 1.1, 3.1, 5.2, 5.3 and 8.2 in any material respect, then Customer shall
reimburse SunGard for the expenses incurred by SunGard in conducting the audit.
8.9 Severability. A determination that any provision of this Agreement is invalid or
unenforceable shall not affect the other provisions of this Agreement.
City of Gilroy, CA
8.10 Headings. Section headings are for convenience of reference only and shall not affect
the interpretation of this Agreement.
8.11 Negotiated Terms. The parties agree that the terms and conditions of this Agreement
are the result of negotiations between the parties and that this Agreement shall not be
construed in favor of or against any party by reason of the extent to which any party or
its professional advisors participated in the preparation of this Agreement.
8.12 Personnel. Customer shall not, directly or through one or more subsidiaries or other
controlled entities, hire or offer to hire any programmer, trainer or member of a data
processing, customer support or conversion team of SunGard at any time when such
Person is employed or engaged by SunGard or during the six (6) months after such
SunGard employment or engagement ends. For purposes of this provision, "hire"
means to employ as an employee or to engage as an independent contractor, whether
on a full -time, part -time or temporary basis. This provision will remain in effect during
the term of this Agreement and for a period of one (1) year after termination of this
Agreement. In the event such activity occurs, Customer will pay to SunGard damages in
the amount of $50,000.
8.13 Jurisdiction and Process. In any action relating to this Agreement, (a) each of the
parties irrevocably consents to the exclusive jurisdiction and venue of the federal and
state courts located in the Commonwealth of Pennsylvania, (b) each of the parties
irrevocably waives the right to trial by jury, (c) each of the parties irrevocably consents to
service of process by first class certified mail, return receipt requested, postage
prepaid, to the address at which the party is to receive notice in accordance with
Section 10.1, and (d) the prevailing party shall be entitled to recover its reasonable
attorney's fees (including, if applicable, charges for in -house counsel), court costs and
other legal expenses from the other party.
8.14 Counterparts. This Agreement may be executed in one or more counterparts, each of
which shall be deemed an original and all of which together shall constitute one and the
same instrument. If this Agreement is executed via facsimile, each party hereto shall
provide the other party with an original executed signature page within five (5) days
following the Execution Date of this Agreement.
8.15 Governing Law. THIS AGREEMENT SHALL BE CONSTRUED AND ENFORCED IN
ACCORDANCE WITH THE LAWS OF THE COMMONWEALTH OF PENNSYLVANIA
EXCLUDING CHOICE OF LAW; PROVIDED, HOWEVER, THAT THE TERMS OF
ANY APPLICABLE LAW NOW OR HEREAFTER ENACTED THAT IS BASED ON OR
SIMILAR TO THE UNIFORM COMPUTER INFORMATION TRANSACTIONS ACT
DRAFTED BY THE NATIONAL CONFERENCE OF COMMISSIONERS ON UNIFORM
STATE LAWS SHALL NOT APPLY.
8.16 Piggy Back Clause. Whereas Customer has conducted a competitive evaluation and
has concluded such efforts with this negotiated Agreement; therefore this Agreement
may serve as the basis for similar Agreements whereby other governmental entities
may contract separately with SunGard.
City of Gilroy, CA 10
APPENDIX 1
SOURCE CODE
SunGard Pentamation Inc. ( "Pentamation "), grants to the City of Gilroy, CA and the City of
Gilroy, CA ( "Client ") accepts, a non - transferable and non - exclusive license to use the
computer software source code programs listed in on this agreement, on Client's
administrative computer system(s) for its internal use only. The licensed software
programs and related written materials are hereinafter collectively referred to as the
"Licensed Systems."
Terms:
1. The License granted under this Agreement authorizes Client to possess and use solely for
its own use copies of the Licensed Systems on the Client's administrative computer
system(s). This License includes the right to use the related written materials for the
licensed software programs such as user manuals, flow charts, logic diagrams, and
program code. The Licensed Systems may not be used to process data for any person or
entity other than Client.
2. Client recognizes that the Licensed Systems are confidential and trade secret property,
which is proprietary to Pentamation. Client, its agents, employees, and representatives
shall not make available or disclose in whole or in part, any Licensed Systems,
including flowcharts, logic diagrams, and program code, to any third parties. Licensed
Systems which are provided by Pentamation may be copied by Client for backup
purposes only and Client shall not otherwise print, copy or duplicate the Licensed
Systems.
3. Client will take reasonable steps to protect the security of the Licensed Systems and
will inform all employees, agents and representatives who utilize the Licensed Systems
of this requirement. Client may not assign, timeshare, rent, or offer for sale any part
of the Licensed System or any other systems derived from the Licensed Systems.
4. Client agrees that if the Client has application software changes or screen changes
made by non - Pentamation employees, this may affect Pentamation's ability to perform
its obligations under any Software Maintenance and Support Agreement which may be
in effect, and may result in extra charges by Pentamation. Pentamation is under no
obligation to provide services necessitated by problems caused by software changes or
data manipulations performed by the client; if Pentamation elects to provide support
services, they will be provided on a time and materials basis.
Licensed Systems:
1. eGovF
a.
b.
C.
d.
e.
f.
9•
'LUS -
e- Business License
e- Inspection Scheduling
e -Web Payments Interface
e- Permitting
e -Code Enforcement
e- Utility Billing
e- ACTion!
City of Gilroy, CA 11
SUNGARD PENTAMATION INC.
ADDENDUM
Name and Address of Client:
City of Gilroy
7351 Rosanna Street
Gilroy, CA 95020
Telephone: (408) 846 -0272
Fax: (408) 846 -0421
Attn: David Chulick
Licensor:
SunGard Pentamation Inc
3 West Broad Street, Suite 1
Bethlehem, PA 18018
Telephone: (610) 691 -3616
Fax: (610) 861 -9323
1. SunGard Pentamation and Client agree to amend their existing agreement, dated July 31,1998, to
add the following as attached hereto and part of this Agreement.
Products and Services
Appendix 1— Licensed Software, Training and Support
Appendix 2 — Implementation Services
Appendix 3 — Hardware Equipment/ Services
All terms and conditions of the existing Agreement shall remain in effect (with the exception of
prices and payment terms indicated herein). Payment terms are as follows: 25% of Licensed
Software will be due upon execution of this Agreement. 75% of Licensed Software due upon
delivery of Software. The initial Maintenance and Support term shall be for a period of one year
commencing upon execution of this Agreement. Training and other professional services will be
invoiced on a monthly basis as incurred.
IN WITNESS WHEREOF AND INTENDING TO BE LEGALLY BOUND, the parties have caused
this Agreement to be signed by its duly authorized officer.
SUNGARD PENTAMATION INC
Print Name: Donald V. Appleton
Print Title: President & Chief Operating Officer
Date Signed: February 22, 2007
02/07 -869
CITY OF GILROY,CA
Jay Baksa
Print Title: City Administrator
Date Signed: February 26, 2007
City of Gilroy, CA
Investment Summary Page
February 22, 2007
Appendix 1 - Licensed Software, Training and Support
eCommunityPLUS Applications 18,600
Recommended Implementation / Training - eCommunityPLUS 10,800
Appendix 2 - Implementation Services
Custom Programming / Services 4,500
Appendix 3 - Hardware Equipment/Services
Installation Services 1,500
Total * $35,400
* Travel and living expenses are not included in this total and will be invoiced at actual cost.
eCommunityPLUS Applications 3,255
Total $3,255
Detailed Investment Pages Follow
2/22/2007
Prices valid for 90 days
Prices are CONFIDENTIAL and the property of SunGard Pentamation
Page 1
SunGard Pentamation Inc
Version 1.1.
Citations
Fire and Safety Inspections
APPENDIX 1 - LICENSED SOFTWARE
5,400 945 1.0 4.0 6,000
5,400 945 1.0 1.0 2,400
Alarm Billing 7,800 1,365 1.0 1.0 2,400
Total Without Optional Items: $18,600 $3,255 3.0 6.0 $10,800
* First year maintenance and support included at no additional cost. Pricing includes a 10% discount if all 3 products are purchased at the same time.
eCommunityPLUS requires the availability of an ANSI compatible 'C' Compiler.
Additional Training Notes:
The training fee for the above applications is $1,200 per day plus travel related expenses. Some training sessions maybe accomplished via the internet thereby
reducing travel and living expenses.
Training days are based upon an eight hour day, which includes setup time.
Should additional daily time be neededfor implementationassistance beyond the standard eight hour day, this can be scheduled with the trainerfor the standard
training rate of $150 /hour.
Any training required beyond those days indicated above will be performed at the then standard per diem or hourly training rate.
Training day counts are based on a maximum class size of 16 individuals (eight desktops with two individuals per desktop).
APPENDIX 2 - IMPLEMENTATION SERVICES
Initial Transfer of data from Business License to create
records in the Fire and Safety product. 0.0 4,500 0
Total Without Optional Items: $4,500 $0
* First year maintenance and support included at no additional cost.
2/22/2007
Prices valid for 90 days
Prices are CONFIDENTIAL and the property of SunGard Pentamation
Page 2
SunGard Pentamation Inc
Version 1.1.
Customers previously running release 8.1 or prior, require a Web Version upgrade license for those CommunityPLUS
applications for which a web version is currently available..
Requires a database of MS -SQL or IBM Informix or Oracle.
Requires a Domain Controller with Active Directory when implementing a Windows Operating System on the Server.
RSHD from Denicomp Systems for mailmerge.
APPENDIX 3 - HARDWARE EQUIPMENT /SERVICES
Installation Services $1,500
Total Without Optional Items: $1,500
All software licensing prices included herein are for informational and planning purposes. Final pricing will be offered via formal
response to the request for proposal.
Sales taxes are not included in the quoted prices. All applicable sales taxes will be included on invoices.
Installation, training and consulting prices quoted within this proposal do not include the cost of travel and living expenses for SunGard
Pentamation personnel. These are billable at our cost.
In the event that Pentamation will be required to furnish a Performance Bond, this is optionally available for the additional fee of 4.5% of
the total bond amount per year. Excluded are any products which are not purchased directly through Pentamation.
Pentamation provides custom programming for a fee of $150 /hour.
Additional Prerequisites:
A CD, 4mm DAT or DLT drive is a necessary component of the computer hardware configuration to facilitate the distribution of the
application software.
The computer hardware configuration needs to include reliable access to the system via the Internet, a dedicated dial -up phone
telephone line with a diagnostic modem of Pentamation's specifications and a "superuser" system log -in account with privileges for
Pentamation's use in providing support for the application software system.
2/22/2007 Page 3
Prices valid for 90 days SunGard Pentamation Inc
Prices are CONFIDENTIAL and the property of SunGard Pentamation Version 1.1.
SUNGARD PENTAMATION INC.
ADDENDUM
Name and Address of Client:
City of Gilroy
7351 Rosanna Street
Gilroy, CA 95020
Telephone: (408) 846 -0272
Fax: (408) 846 -0421
Attn: David Chulick
Licensor:
SunGard Pentamation Inc
3 West Broad Street, Suite 1
Bethlehem, PA 18018
Telephone: (610) 691 -3616
Fax: (610) 861 -9323
1. SunGard Pentamation and Client agree to amend their existing agreement, dated July 31, 1998, to
add the following as attached hereto and part of this Agreement.
Products and Services
Appendix 1— Licensed Software, Training and Support
Appendix 2 — Implementation Services N/A
Appendix 3 — Hardware Equipment/ Services
All terms and conditions of the existing Agreement shall remain in effect (with the exception of
prices and payment terms indicated herein). Payment terms are as follows: 25% of Licensed
Software will be due upon execution of this Agreement. 75% of Licensed Software due upon
delivery of Software. The initial Maintenance and Support term shall be for a period of one year
commencing upon execution of this Agreement. Training and other professional services will be
invoiced on a monthly basis as incurred.
IN WITNESS WHEREOF AND INTENDING TO BE LEGALLY BOUND, the parties have caused this
Agreement to be signed by its duly authorized officer.
SUNGARD PENTAMATION INC
By: V
Print Name: Donald V. Appleton
Print Title: President & Chief Operating Officer
Date Signed: December 6, 2006
12/06 -837
CITY OF GILROY, CA
Print Title: r•i ty Admini ctrnt=
Date Signed: peremhPr 1 , 7006
City of Gilroy, CA
Investment Summary Page
December 6, 2006
Pr 1dng Summa
Appendix 1 - Licensed Software, Training and Support
eFinancePLUS Applications
Recommended Implementation / Training - eFinancePLUS
Appendix 2 - Implementation Services
$10,200
3,000
N/A
Appendix 3 - Hardware Equipment/Services
Installation Services 1,000
Total * $14,200
* Travel and living expenses are not included in this total and will be invoiced at actual cost.
rly.
Pri
eFinancePLUS Applications $1,785
Total: $1,785
Detailed Investment Pages Follow
City of Gilroy, CA SunGard Pentamation Inc
APPENDIX 1 - LICENSED SOFTWARE
eFinancePLi1 Applical#itlts License Year 2 Ir1Qp T�>Ilillil Trairtin
Fees' ` Maint. C0
Personnel Budgeting
$5,400
$945
- 1.0 $1,200
Position Control
4,800
840
0.5 1.0 1,800
Total Without Optional Items:
$10,200
$1,785
0.5 2.0 $3,000
* First year maintenance and support included at no additional cost.
eFinancePLUS requires the availability of an ANSI compatible 'C' Compiler.
Additional Training Notes:
The training fee for the above applications is $1,200 per day plus travel related expenses. Some training sessions may be accomplished via the internet thereby
reducing travel and living expenses.
Training days are based upon an eight hour day, which includes setup time.
Should additional daily time be needed for implementation assistance beyond the standard eight hour day, this can be scheduled with the trainer for the standard
training rate of $150 /hour.
Any training required beyond those days indicated above will be performed at the then standard per diem or hourly training rate.
Training day counts are based on a maximum class size of 16 individuals (eight desktops with two individuals per desktop).
Any training scheduled more than 12 months after the execution date of this agreement will be at our then standard per diem rate.
The schedule for the above training services will occur as mutually agreed by SunGard and Client and as documented in a training agenda that will be sent to the
Client. SunGard's cancellation policy requires a 21 -day advance notice to cancel scheduled training. Cancellations within 6 -21 days of the scheduled service will
be invoiced at 50% of the total quoted service cost. Cancellation within 5 days, or on the scheduled date, the service will be invoiced at 100% of the quoted cost.
For any cancellation of on -site services, any non - refundable travel expenses will be invoiced to your organization at cost.
City of Gilroy, CA SunGard Pentamation Inc
Q
APPENDIX 2 - IMPLEMENTATION SERVICES
eFinantePLUS,systom oats
eFinancePLUS Windows Version
Requires a database of MS -SQL or IBM Informix.
Requires a Domain Controller with Active Directory when implementing a Windows Operating System on the Server.
eFinancePLUS Web Version
Customers previously running release 4.1 or prior, require a Web Version upgrade license.
Requires a database of MS -SQL or IBM Informix.
Requires a Domain Controller with Active Directory when implementing a Windows Operating System on the Server.
Web Server:
OS Platform: Microsoft Windows Server 2003 Standard
Workstations:
Client PC Minimum Requirements
OS Platform: Win2K Professional, WinXP Professional
Windows TCP /IP system installed
CPU: 1.8 GHz or greater
Memory: 256 MB RAM minimum; 512 MB recommended
Supported Browsers: Internet Explorer V.6.0 +, Firefox V.9 +, Mozilla V.1.7 +, Netscape V.7.2+
Client MAC Minimum Requirments
OS Platform: Mac OS X 10.2
TCP /IP system installed
CPU: Macintosh computer with a PowerPC G3, G4, or G5 processor
Memory: 256 MB RAM minimum
Supported Browsers: Firefox V.9 +, Mozilla V.1.7 +, Netscape V.7.2 +, Camino V.8+
NOTE: Safari is NOT supported.
City of Gilroy, CA SunGard Pentamation Inc