Contract - Azteca Systems Inc. - 2011-01-22 Azteca Systems,Inc. Phone:(801)523-2751
11075 South State St. Cityworks ,40•• FAX(801)523-3734
Suite 24 Email:info@cityworks.com
Sandy,Utah 84070 http://www.cityworks.com
CITYWORKS®
Update& Support Agreement
Contract No. C147110
This agreement(Agreement)is between Costa Mesa Sanitary District,CA(hereafter
the User), as specified in paragraph 9.1, and Azteca Systems,Inc. (hereafter Azteca
Systems), a Utah corporation,with its principal place of business at 11075 South State
Street, Suite#24 Sandy,Utah, 84070. Azteca Systems and the User have entered into a
license agreement with respect to use of The Cityworks Software(the"Cityworks
Software License Agreement");and User also desires to secure software Cityworks
update and support services from Azteca Systems with respect to such Software as more
specifically enumerated in this Agreement.
THE PARTIES AGREE AS FOLLOWS:
1. DEFINITIONS
1.1 "Covered Software" shall mean the particular Software, scripts, interfaces and
custom code identified in paragraph 9.3.
1.2 "Custom Applications" shall mean any scripts, interfaces,reports or program
code requested by the Licensee, other than Program Modifications to the Cityworks
applications that provide specific functionality uniquely designed for the Licensee.
Any Custom Applications delivered to Licensee shall NOT become part of the
Licensed Software unless otherwise specified in section 9.3. The Custom
Applications scripts, interfaces,reports and program code shall be provided to the
client as a deliverable and client shall have full ownership rights for the Custom
Applications. However,Azteca Systems shall retain the right to utilize,modify and
enhance the scripts, interfaces,reports or program code of the Custom Applications
as Azteca Systems deems appropriate.
1.3 "Effective Date"shall mean the date on which User receives the Software
Cityworks software from Azteca Systems in accordance with the Cityworks Software
Lice se A eement,Contract No.C147110,between User and Azteca Systems dated
1.4 "Licensed Software" shall mean the particular Software identified in the
Cityworks Software License Agreement.
Update&Support Agreement,Page 1 of 9
1.5 "Program Fixes"shall mean minor corrections to the Licensed Software to
correct deviations in the Licensed Software. Any Program Fixes delivered to User
shall become part of the Licensed Software under the Cityworks Software License
Agreement.
1.6 "Program Modifications" shall mean new versions of or additions to the
Licensed Software,which adds to or alters the function(s)of the Licensed Software
and new modules or products adapted to interface with the Licensed Software and add
to or alter the function(s)of the Licensed Software,requested by the User. Any
Program Modifications delivered to User shall become part of the Licensed Software
under the Cityworks Software License Agreement.
1.7 "Product Updates"are Program Fixes,Program Upgrades and Program
Modifications.
1.8 "Program Upgrades" shall mean new versions of, or additions to,the Licensed
Software prepared by Azteca Systems that improve its operating performance but do
not add to or alter its basic function(s). Any Program Upgrades delivered to User shall
become part of the Licensed Software.
1.9 "Software"shall mean Cityworks source code,machine-readable code,and
related documentation.
1.10 "Update&Support Period" shall mean the initial Update and Support period
commencing upon the Effective Date of this Agreement,as set forth in section 9.2,
and any subsequent twelve-month period.
1.11 "Update&Support Agreement" or"Agreement"shall mean this Update&
Support Agreement between Azteca Systems and User identified in paragraph 9.1,the
terms and conditions of which are hereby incorporated by reference.
2. SUPPORT
2.1 The services to be provided during the Update& Support Period include Azteca
Systems Product Updates to Azteca System's Cityworks applications including
Program Fixes,Program Upgrades and Program Modifications(not Custom
Applications). Azteca Systems will ensure compatibility for The Cityworks
Software applications within a reasonable timeframe for minor and major ESRI®
ArcGIS and Cityworks supported databases revisions. If identified as"Covered
Software",Azteca Systems will ensure upward compatibility within a reasonable
timeframe for Custom Applications when there are minor ArcGIS and Cityworks
supported databases revisions(for example,from rev 9.1 to rev 9.2). Azteca Systems
will not ensure upward compatibility for Custom Applications when there are major
ESRI ArcGIS and Cityworks supported databases revisions(for example, from rev 9.x
Update&Support Agreement,Page 2 of 9
to rev 10.x), Azteca Systems will make all reasonable efforts to provide upward
compatibility.
2.2 Azteca Systems shall,with out additional charge(except as allowed for in
paragraph 3.4 and 7.3),during the term of this Agreement:
(a) Make all reasonable efforts to provide those Program Fixes,if any,that are
necessary to assure the Covered Software is functioning properly;provided User
provides Azteca Systems with written notice specifying particularity in narrative,
non-technical terms to the best of User staffs ability the apparent error in the
system and the manner in which the Covered Software is not functioning
properly(as provided in Section 8); and
(b) Deliver to User any Program Upgrades relating to the Covered Software made
available to others.
(c) Provide Telephone User Support,Email Support, Web Support, during normal
business hours Monday through Friday(excepting Holidays)and after hour
emergency support through messaging service, and other benefits deemed
appropriate by Azteca Systems (as set forth in Section 7).
(d) Implement and maintain a means of secure,remote direct network access
(VPN, Web-access, dial-up, etc)to the User's systems in order to perform
thorough remote diagnostics and effect remote repairs,upgrades,and fixes.
2.3 The following items, among others,however,are specifically excluded as
support services under this section of this Agreement:
(a) interpretation of program results;
(b) assistance with questions related to computer hardware and peripherals that are
not related to the use of the Covered Software;
(c) assistance with computer operating system questions not directly pertinent to the
Covered Software or Program Modifications;
(d) data debugging and/or correcting;
(e) services necessitated as a result of any cause other than authorized ordinary and
proper use by the User of the Covered Software, including but not limited to
neglect,abuse,unauthorized modification,unauthorized updates or electrical,
fire,water or other damage;and
Update&Support Agreement,Page 3 of 9
(f) consulting regarding Custom Applications created to function with the Covered
Software unless the Custom Application is identified as Covered Software in
paragraph 9.3.
3. CHARGES
3.1 For services hereunder,User shall pay Azteca Systems an annual fee. The annual
fee for the initial Update&Support Period is set forth in paragraph 9.2,and shall be
paid prior to the start of the initial Update&Support Period. The annual fee for
successive Update& Support Periods(twelve-month periods commencing upon the
anniversary of the initial Update&Support Period)shall become due prior to the end
of the preceding paid-up Update&Support Period.
3.2 Upon 90 days written notice,the fee for Update and Support Periods listed in
paragraph 9.2 subsequent to the third Update and Support Period may be adjusted by
Azteca to reflect increases in costs of providing the services described herein and/or to
reflect increases in the population,users, size,usage,and other factors of User;
provided,however,that(a)if the above factors remain constant the increase in the
pricing shall not exceed the Consumer Price Index and(b)if any such proposed cost
increase is in User's opinion excessive,User shall be entitled to terminate this
Agreement prior to the start of the applicable Update &Support Period and shall not
be liable for any further payment under this Agreement. Azteca will notify User of the
new pricing no later than 90 days prior to the annual renewal date of the year
preceding the year for which such adjusted pricing applies.
3.3 In addition to charges due under this Agreement,User shall pay amounts equal
to any sales tax, duties,or other consumption taxes,however designated,which are
levied or based upon such charges,or upon this Update&Support Agreement.
•
3.4 In the event User and Azteca Systems agree it becomes necessary for Azteca
Systems to be on-site to provide support for the Covered Software,the User will
reimburse Azteca Systems for reasonable and customary travel expenses directly
related to the on-site work.Azteca Systems shall provide an estimate and get the
prior approval of User before incurring any costs for which it shall seek
reimbursement from User under this Section. Any reimbursement shall be subject
to Azteca providing verifiable documentation of such expenses to User. User
reserves the right to require an audit of any such cost related records of Azteca to the
extent reimbursement has been made by User under the terms of this Section.
4. LIMITED WARRANTY
4.1 Azteca Systems will provide support services for the Cityworks Software,
Enhancements to Cityworks Software and Custom Applications created by Azteca
Systems identified as Covered Software in paragraph 9.3. The support services are
Update&Support Agreement,Page 4 of 9
provided as part of the Azteca Systems Update and Support services and will be in-
force for the duration of this Agreement. Update&Support Periods beyond the
initial Update&Support Period are renewable unless terminated as provided in
Section 6 below. The Update and Support Services consists of software and
documentation updates and access to technical support via telephone, email,web-
based (MyCityworks.com)and after hours support via pager as set forth in Section 2
above. The User will provide Azteca Systems in writing the names of the User
individuals who are authorized to contact Azteca Systems and request support
services.
4.2 Azteca Systems warrants that trained personnel employed or contracted by Azteca
Systems will perform the services performed hereunder in conformance with best
industry standards.
4.3 With respect to the services provided hereunder and to the extent permitted by
applicable law,this warranty is in lieu of all other warranties,whether written or oral,
express or implied,including without limiting the generality of the foregoing,any
warranty of non-infringement,merchantability or fitness for a particular purpose.
5. LIMITATION OF LIABILITY
5.1 The liability for Azteca Systems for damages arising under this Agreement shall be
limited to the fees actually paid by User to Azteca Systems for the current Update and
Support Period pursuant to Section 3 hereof.In no event shall Azteca Systems be liable
for any incidental,indirect, special, or consequential damages whatsoever(including but
not limited to lost profits)arising out of or related to the support and services provided
hereunder by Azteca Systems,even though Azteca Systems may have been advised,
know or should have known of the possibility of such damages,unless such damage is
caused directly by Azteca System's actual negligence.
6. TERM AND TERMINATION
6.1 The effective date of this Agreement, as set forth in section 9.2, shall continue
until terminated.
6.2 This Agreement shall be terminated upon termination of the Cityworks Software
License Agreement and,after the initial Update& Support Period,may be terminated
by either party upon 30 days'written notice prior to the end of the then current Update
&Support Period. If termination occurs during a successive Update&Support Period
for which the User has paid the renewal fee in full,Azteca Systems shall return a
prorated portion of the renewal fee for that period to the User.
7. PROCEDURES FOR ACCESSING SUPPORT
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7.1 All problem categories from routine,non-critical and critical that occur during
normal business hours shall procedurally occur as follows: 1)User's system
administration staff as first line of support,2)Azteca Systems staff as the second
line of support. Azteca Systems will make all reasonable efforts to acknowledge all
requests for support during normal business hours within 4 hours.
7.2 Prior to calling Azteca Systems for support services,the User will first attempt
to isolate any problems that occur with the System.The User will try to reduce the
problem down to a specific software or system component. If it is determined that
the problem is The Cityworks Software component the User will first try and
resolve the problem without Azteca Systems' involvement. If the User cannot
resolve the problem or isolate the problem,the User will call Azteca Systems
directly.
7.3 For critical problems that occur outside of Azteca Systems' normal business
hours (8 AM to 5 PM,Mountain Time) and cannot be isolated and resolved by the
User,Azteca Systems will provide an after-hours phone number or pager number
that will forward the call or page to the currently assigned Azteca Systems support
staff.Azteca Systems will make all reasonable efforts to acknowledge and respond
to the request for support for critical problems that occur outside of normal business
hours within 4 hours of receipt of the call from a designated and authorized User
representative. Critical problems are defined as problems that cause several users to
be unable to perform their duties. Depending upon the type of problem,Azteca
Systems support staff may need to be sent from Azteca Systems offices to the User
location.Azteca Systems project management will confer with the User's
representative or project management before making this decision. The speed at
which remote Azteca Systems staff can respond may be limited by the driving time
or the airline flights that are available. The User will reimburse Azteca Systems for
all reasonable and customary travel expenses associated with resolving the problem
(pursuant to the provisions of paragraph 3.4). For routine and non-critical problems
the User will submit support requests during normal business hours.
7.4 For all problems involving The Cityworks Software component that are
resolved without Azteca Systems' involvement,the User will document the problem
and the resolution and send a report to Azteca Systems so that it can be tracked,
monitored, and historically recorded.
8. MISCELLANEOUS
8.1 Azteca Systems shall not be in default under this Agreement for its failure to
perform or its delay in performing any obligation under this Agreement(other than the
reimbursement of fees as set forth in paragraph 5.1)during any period of time during
which such delay is due to fire, flood, earthquake, strike, labor trouble or other
industrial disturbance,war(declared or undeclared),embargo,blockage, legal
prohibition or governmental action,riot, insurrection,damage,destruction or any other
Update&Support Agreement,Page 6 of 9
cause beyond the control of Azteca Systems or any of its contractors preventing or
delaying the performance of such obligation,provided that such obligation shall be
performed immediately upon the termination of such cause preventing or delaying
such performance;and provided further that the sole effect of any delay by Azteca
Systems shall be a related delay in payment by the User pursuant to the relevant
schedule.
8.2 The illegality, invalidity or unenforceabilityof any provision of the Agreement
under the law of any jurisdiction shall not affect its legality,validity or enforceability
under the law of any other jurisdiction nor the legality,validity or enforceability of any
other provision. The provisions of this Agreement shall be enforceable to the extent
permissible under the laws of the State of California.
8.3 This Agreement constitutes the entire agreement between the parties with respect
to the subject matter; all prior statements,negotiations,and undertakings are
superseded hereby, and may not be amended,modified or supplemented except in a
writing executed by both parties,expressly purporting to amend this Agreement.
8.4 This Agreement may not be assigned by either party without the prior written
consent of the other party,which consent will not be unreasonably withheld. User
may not sublicense or encumber the Licensed Software without prior written consent
of Azteca Systems.
8.5 Section headings herein are for the sake of convenience only and are not
intended to affect in any way the meaning of this Agreement or the related paragraphs.
8.6 This Agreement becomes effective only upon execution by both parties. One
fully executed copy of this Agreement shall be delivered by User to Azteca Systems
at its office in Sandy,Utah 84070.
8.7 Until further written notice, all payments and notices relevant to this Agreement
shall be sent to the following addresses:
Azteca Systems:Azteca Systems,Inc.
11075 South State St.
Suite 24
Sandy,UT 84070
Attention: Brian L.Haslam
User: The address set forth in paragraph 9.1.
Update&Support Agreement,Page 7 of 9
9. IDENTIFICATION AND AMOUNTS
9.1 (a)User Name: Costa Mesa Sanitary District,CA
(b)User Contact: Thomas Fauth
Number and Street:628 West 19th Street
City/Province/Zip/Country: Costa Mesa,CA 92627-2716
Phone: 949-645-8400x 222 Email:tfauth(&,,crosdca.gov
9.2 User Agreement: Between Azteca Systems and the User dated:
(a)Effective Date I- -I I Initial
(Software delivery date)
(b)Initial Update&Support period and fee:
Fee: $0.00(first year complimentary) Initial
From: �-ate- 1
To: I —
(c)Renewal Date: Successive twelve-month periods from the Renewal
Date specified below,subject to termination as provided in paragraph 6.2.
Renewal Date: _ _12___ Initial
Fee: $1,595.00 Initial
9.3 (a)Description of Covered Software:
Cityworks Desktop-1 License
Update&Support Agreement,Page 8 of 9
10. DATA CONFIDENTIALITY STATEMENT:
For any client data and I or confidential information (data)provided to Azteca
Systems,we will take reasonable measures to assure that the data is not
inappropriately accessed or distributed to any third-party. Data provided to Azteca
Systems by the client will be loaded onto Azteca Systems servers or employee
computers for the purpose of testing Cityworks software, database structure, or
database values, and related ESRI software to resolve database or software
performance issues, software enhancements and software defects ("bugs"). At no
time will the data be distributed to individuals or organizations who are not Azteca
Systems employees without first receiving written approval from the client. If
requested by the client, and once the testing has been completed,Aztecs Systems
will delete all data provided by the client.
IN WITNESS WHEREOF,the parties hereto have executed this Agreement to be effective,
valid, and binding upon the parties as of the date below as executed by their duly authorized
representatives.
Accepted and Agreed:
Costa Mesa Sanitary District, CA Azteca'Systems,Inc.
(User) (Aztec. Systems)
By: _mil%_ _, By: � If
Authorized Signature Authorized Signature
Printed Name: ��' �_ �� �� Printed Name: Brian L.Haslam
Title: c a . Ma./Z2.� X Title: President
Date: •^�3\\ Date: I 1 O/a9/
I
Witness Witness
By: BY: '- as. .. A's
Update&Support Agreement,Page 9 of 9