1983-012-Authorizing The Town Manger To Execute A Software Maintenance Agreement With Data West CorporationRESOLUTION NO. 1983 -12
A RESOLUTION AUTHORIZING THE TOWN MANAGER
TO EXECUTE A SOFTWARE MAINTENANCE AGREEMENT
WITH DATA WEST CORPORATION.
BE IT RESOLVED that the Town Council does hereby approve that
agreement between the TOWN OF LOS GATOS and DATA WEST CORPORATION
entitled "System Support Agreement "; and
BE IT FURTHER RESOLVED that the Town Manager is hereby authorized
and directed to execute said agreement on behalf of the Town of Los Gatos.
PASSED AND ADOPTED AT A Regular meeting of the Town
Council of the Town of Los Gatos held this 17 day of
January , 1983, by the following vote:
AYES: COUNCIL MEMBERS Joanne Benjamin, Terrence J.
Daily, Thomas J. Ferrito, Marlyn J. Rasmussen
& Mayor Brent N. Ventura
NOES: COUNCIL MEMBERS None
ABSENT:
COUNCIL
MEMBERS
None
ABSTAIN:
COUNCIL
MEMBERS
None
SIGNED: � r
MAYOR OF IHE TOWN OF LOS GATOS
ATTEST:
DEPUTY CLERK OF THE TOWJ)V'OF LOS GATOS
YSTE'l SUPPORT AGREEMENT
Re: Contract No. 81 -06
This agreement is made this 31 st day of December 1982
between DATA WEST CORPO RATION, hereinafter rererred to as DATA
WEST, a Colorado Corporation, and The Town of Los Gatos, California
(CLIENT), on the terms and conditions set forth herein.
During the normal course of computer operations, system failure
may occur due to varied causes, including but not limited to oper-
ator error, external influences, inherent defects in the software
(programs) logic, or hardware (computer) malfunctions. Therefore,
DATA WEST agrees to provide,subject to the terms and conditions of
this agreement, all of the expertise and /or resources at its dis-
posal to assist CLIENT in restoring the computer system to full
operation as quickly as practical. In consideration for the ser-
vices offered, CLIENT will pay a fee as set forth in Exhibit A,
plus any applicable taxes.
TERMS AND CONDITIONS
The services and materials to be provided by DATA WEST to CLIENT
under this agreement are subject to the following terms and
conditions:
1. System Supported
The System supported will consist of the software licensed
and /or leased by CLIENT from DATA WEST, such software to be in
the form as originally obtained or as modified by DATA „EST.
2. Services
2.1 Priority Services
All services and supplies provided under this agreement will
be so provided as expeditiously as possible and in priority
over any other party's system support requirements which are
not covered by a similar System Support Agreement.
2.2 Limited Liability
DATA 47EST'S sole obligation and liability under this agreement
shall be to provide its expertise to assist CLIENT to identify
and correct any system failure so that the system performs as
specified in the system documentation, and in no event shall
DATA WEST be liable for any incidental or consequential damages.
2.3 System Failure
DATA WEST agrees to assist CLIENT to the best of its ability,
in the isolation and resolution of any and all system failures,
including but not limited to programming errors, operator
errors, procedural errors, and power
assist CLIENT Failures. DATA EST will T verbally, vi WEST a telecommunications link (if avail-
able), or on -site, if mutually deemed necessary, in an attempt
to restore CLIENT'S system to full operation. While DATA
WEST will make every effort to recover any data
the system Failure, DATA lost due to
WEST does not guarantee that its
efforts will be successful. Restoration of any destroyed or
defective data is the sole responsibility of CLIENT.
2.4 Program Corrections
From time to time, program corrections are issued which may be
applicable to CLIENT software.
A. Under this agreement, DATA WEST will notify CLIENT program
corrections are required. DATA WEST will implement program
corrections on CLIENT software either at CLIENT site, via
telecommunications link, or upon timely delivery to DATA
WEST site of CLIENT program disk, as may be agreed upon.
B. DATA WEST will make its best efforts to ensure program cor-
rections will rectify the identified system error; however
DATA FOEST'S sole obligation in the event the program cor-
correction. rection is itself in error is to issue a revised program
2.5 Per -Call Fee Waiver
Professional Time for system support services rendered under
the terms of this agreement will be at no charge to CLIENT.
2.6 System Application Enhancements
From time to time, DATA WEST may make available to CLIENT
System Application Enhancements, which are designed to improve
the application functions of the system. System Application
Enhancements will be offered to CLIENT at a nominal fee, to
include software, documentation, installation, and any addi-
tional training required.
2.7 Other System Support Activities
All other system support activities will be charged at the
rates set forth in the then - current DATA WEST Fee Schedule.
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3. Agreement Exclusions
The services provided and fees assessed for such services
rendered by DATA ?TEST under this agreement are limited to the
above. Services not covered by this agreement include but are
not limited to:
3.1 The conversion of any application software to utilize any
other computer or peripheral device.
3.2 The upgrade of any application software to utilize any newly
developed enhancement except at the option of DATA WEST.
3.3 The modification of programs or data bases.
3.4 Any expenses, including travel, and lodging costs, incurred
during any on -site visit, whether or not the visit Taas caused
by a problem covered by the scope of this agreement.
3.5 The support of any software, program, or data base, not
obtained from DATA WEST.
3.6 Expenses incurred by DATA ATEST for supplies, data media, ship-
ping charges, etc., in the support of CLIENT software as iden-
tified in this agreement.
3.7 Long- distance telephone expenses incurred during remote support
activities.
H
5.
Term
The term of this agreement shall be for one year from the date
of this agreement. Unless written notice is rendered within
thirty days of the expiration of the term of this agreement,
the agreement shall be automatically renewed for another one
year period at the then- current fees.
Confidentialitv
DATA WEST agrees to hold all financial data received from
CLIENT confidential and to use all reasonable efforts to pro-
tect said data from use for any purpose other than that re-
quired to discharge its responsibilities pursuant to this
agreement.
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6. Fee P� aym=nt
Payment to DATA WEST by CLIENT for services to be rendered
under the terms of this agreement shall be made as set forth
in Exhibit A attached.
7. Assignment, Jurisdiction, and Miscellaneous
7.1 Although the computer system hardware utilized is manufactured
by Wang Laboratories, Inc., of Lowell, Massachusetts, FVang
Laboratories, Inc. is not a party to, nor are they bound by
the terms of this agreement.
7.2 This agreement, and any specified attachment, or exhibits
attached, constitute the entire agreement between DATA WEST
and CLIENT, and all promises, representations, understandings,
and agreements with respect to the subject matter hereof and
inducements to the making of this agreement relied upon by
either party have been expressed herein, and may be altered,
amended, or modified only in writing executed by the parties
hereto.
7.3 Neither this agreement, nor any interest therein, may be
assigned by CLIENT without DATA WEST'S prior written consent.
No Party shall be liable for delay in performance hereunder
due to causes beyond their control, including, but not limited
to, acts of God, fires, strikes, acts of war, or the interven-
tion of governmental authority, but any such failure shall be
remedied as soon as reasonably possible.
7.4 This agreement shall be interpreted and enforced pursuant to
the laws of the State of Colorado, United States of America,
and any action relating to this agreement may at the option of
DATA WEST be brought in Durango, La Plata County, Colorado,
United States of America. It is agreed by and between the
parties that this agreement was executed in the State of Colo-
rado, United States of America. In the event either party re-
tains legal counsel to enforce any of the provisions of this
agreement, the party against whom judgement is rendered agrees
to pay all reasonable attorney's fees and costs, including but
not limited to court costs, sheriff's fees, and any additional
fees ees pursuing collection of any judgment.
7.5 Any controversy, dispute or question arising out of, in connec-
tion with, or in relation to this agreement or its interpreta-
tion, performance, or non performance, or any breach thereof
may, at the option of DATA WEST, be determined by arbitration
in accordance with the rules of the American Aribitration
Association. The cost and expenses of such arbitration, in-
cluding the compensation of the arbitrators and the steno-
grapher employed by them, shall be paid by the party against
whom the arbitrator renders a decision. The decision of the
arbitrator shall be final and binding upon the parties hereto
and may be entered as a final decree or judgment in any court
Of competent jurisdiction. After the making of the award,
which may include an award of damages, by the arbitrator as
herein provided, either of the parties to this agreement shall
have the right to commence an action in any court of competent
jurisdiction to enforce the award rendered hereunder. The
party against whom judgment is rendered agrees to pay reason-
able attorney's fees and costs, as well as any other damages
sought.
7.6 Each party executes this agreement as an independent contract-
or, and nothing herein shall be construed to form a joint
venture, partnership, or any other similar form of associa-
tion.
7.7 In the event of default by the CLIENT in payment of any sum to
DATA WEST when due, or in the performance of any of its obli-
gations under this agreement, DATA WEST shall have the right
to terminate this agreement, until such time as the default(s)
be cured. CLIENT shall reimburse DATA SPEST for all costs and
expenses, including reasonable attorney's fees, incurred by it
to enforce collection of any monies due from CLIENT.
7.8 Neither CLIENT nor DATA WEST shall directly or indirectly
encourage or cause to encourage third parties to induce any
employee, officer, or agent to leave the employ of the other
party, without the other party's prior written consent.
7.9 Any notice or other communications required to be given to
either party shall be deemed given when postmarked and deposit-
ed in the mail, postage prepaid, registered, return receipt
requested, addressed to the party to whom notice is to be
given at the appropriate address as identified in Exhibit A.
7.10 All money terms referenced shall be in United States funds at
face value as of the date of payment.
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The above agreement has been read in its entirety and.executed by
authorized representatives of the parties hereto.
CLIENT: The Town of Los Gatos, California
BY: David R. Mora
TITLE: Town Mana
DATE:
DATA WEST CORPORATION
By: Richard L. Brown
TITLE: Vice Pr es id ent
DATE: December 31, 1982
Tfl
Date: December 31, 1982
EXHIBIT A
SYSTEM SUPPORT AGREE:IENT
Between DATA WEST CORPORATION and The Town of Los Gatos California
1. DATA WEST CORPORATION Telephone (303) 259 -2330
P. 0. Box 2064
1061 E. Second Avenue
Durango, Colorado 81301
Contact: Richard L. Brown
2. CLIENT: The Town of Los Gatos, California
$ 1440
Mailing Address: 110 E. Main S-treet
Los Gatos CA 95030
Telephone Number: 408- 354 -6832
B. Other
Contact: Dave Mora
will be Paid net 10
3. SYSTEM :MODULES SUPPORTED:
FEE (PER 14ONTH):
S1P.E.E.D.
$20
Word Processing
10
AIMS - 3
20
General Ledger
10
Accounts Payable
10
Payroll
10
Job Cost Accounting
10
Fixed Assets
10
Purchase Order
10
Cash Receipts
10
4. FEE PAYMENT TERMS:
$120
A. System Support Agreement fee shall be Paid in advance:
Check ONE option:
( ) Annually, ( ) Semi- annually, { ) Quarterly
Amount:
$ 1440
$720
$ 360
B. Other
charges
will be Paid net 10
days
of receipt of invoice.
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FEE SCHEDULE
INITIAL SYSTEM INSTALLATION:
1. Systems Analysis $50 /Hour
2. Programming $40 /Hour
A. Package S4odification
B. Custom Programming
CONTINUING SYSTEM SUPPORT:
(Subsequent to expiration of 90 -day Warranty Period, if covered.)
1. Support calls handled by phone
(Including support via remote terminal)
A. Calls placed by client to Data west $40 /Hour
(professional time)
B. Calls placed by Data West to client $60 /Hour
(professional time plus average
long distance charges)
2. Support calls requiring travel to client site
A. Professional time at client site $40 /11our
B. Travel and per diem At Cost
3. System enhancements requested by client
which were not part of the original design
or Software Licensing Agreement
A. Systems Analysis $50 /Hour
B. Programming $40 /Hour
C. Travel and per diem At Cost
4. Additional Training
A. By Instructor $30 /Hour
B. By Programmer $40 /hour
C. Travel and per diem At Cost
1 December 1981