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3'k%* N of S C p'i ©� COUNCIL AGEN®A REPORT DATE: November S, 2012 TO: MAYOR AND TOWN COUNCIL FROM: GREG LARSON, TOWN MANAGER z� MEETING DATE: 11/05/12 ITEM NO: 3 SUBJECT: APPROVE EXTENDED MAINTENANCE AGREEMENT AND CONTRACT WITH TIBURON, INC. FOR COMPUTER AIDED DISPATCH (CAD), RECORDS MANAGEMENT SYSTEM (RMS), AUTOMATED REPORTING SYSTEM (ARS), AND MOBILE DATA SYSTEM (MDS) RECOMMENDATION: Approve extended maintenance agreement and contract with Tiburon, Inc. for Computer Aided Dispatch (CAD), Records Management System (RMS), Automated Reporting System (ARS), and Mobile Data System (MDS). BACKGROUND: In 1993, Tiburon, Inc. was selected by the Town of Los Gatos to provide public safety software services and maintenance support for the police department's CAD, ILMS, ARS and MDS systems. The department has maintained a service agreement with Tiburon since it was first introduced. Last June, the maintenance contract was extended for an additional year and the department is now requesting a second, year of maintenance to be extended under the original contract which will expire in July 2013. DISCUSSION: In June of 2011, the Town of Los Gatos and the City of Sunnyvale entered into a joint purchasing agreement for the acquisition of a new 'Tiburon system that will be shared by both jurisdictions. Implementation efforts have been underway since then and have included many tasks such as: network setup; system code table population; data transfer; functional testing; and training of personnel on use of the new system. Given the magnitude and scope of the project, implementation has been divided into two segments — CAD which is scheduled to go live by PREPARED BY: SCOTT R. SEAMAN Chief of Police Reviewed by: Assistant Town Manager UIUA—Town Attorney Finance NAPoliee \Council Reports\2012 \Tiburon extended maintence report 2012. doe PAGE 2 MAYOR AND TOWN COUNCIL SUBJECT: APPROVE EXTENDED MAINTENANCE AGREEMENT AND CONTRACT WITH TIBURON, INC. FOR COMPUTER AIDED DISPATCH (CAD), RECORDS MANAGEMENT SYSTEM (RMS), AUTOMATED REPORTING SYSTEM (ARS), AND MOBILE DATA SYSTEM (MDS). November 5, 2012 December 2012 and RMS which is tentatively scheduled to go live April 2013. The police department has asked Tiburon to extend their current service agreement for another year since there are no firm dates that Tiburon can use to pro -rate the current maintenance agreement. Tiburon has stated that any credit due to the Town following a complete system cutover will be applied towards the next maintenance contract. CONCLUSION: Staff recommends Council approve the extended maintenance agreement with Tiburon, Inc. ENVIRONMENTAL ASSESSMENT: Is not a project defined under CEQA, and no finther action is required. FISCAL IMPACT: The cost for the renewed one year maintenance support agreement is $71987.00 and was budgeted in the Police Department FY 2012 -13 operating budget account number 4201 - 63332. Attachments: Master Support Agreement including Second Amend-merit to Agreement and Updated Exhibit 2. Distribution: General Distribution CLERK DEPARTMENT AGR 12.. w I &I IIIH SECOND AMENDMENT TO AGREEMENT aRD REC This SECOND AMENDMENT TO AGREEMETN is dated for identification this 't ofof October -- 2012 and amends that certain extended maintenance agreement and contract for CAD, Y, ATE a d-- -- MDS reporting systems dated August 1, 2010, made by and between the Town of Los Gatos ( ""town ") and Tiburon, Inc. ( "Vendor ") RECITALS A. Town and Vendor entered into an extended maintenance agreement on July 1, 2011, (10.140) a copy of which is attached hereto and incorporated by reference as Attachment 1 to this Amendment. B. Town desires to amend the agreement -for one (1) more year. AMENDMENT 1. Exhibit 2 is being amended to reflect the increase in pricing for the next fiscal year. 2. All other terms and conditions of the Agreement remain in full force and effect. IN WITNESS WHEREOF, the Town and Vendor have executed this Amendment. Town of Los Gatos Ne-,442C-G W -500 .ritle: i -Ovom mAmA &fie Departmental Approval: Name: -5t bTT -,3t M110 Title: Ckt►fT° Q� POU0" Approved as to Fora: Name: jUj)[tj4 pi-opp Title: -10,p rvmjeAIL;y Tiburon, Inc. Name: ' "e ®Yq- - awv-G► Title: EXHIBIT 2 To Master Support Agreement COVERED APPLICATIONS This Exhibit is attached to, incorporated into and forms part of the Master Support Agreement, dated August 1, 2010, between the Client and Tiburon (herein referred to as the "Agreement"). Capitalized terms used herein shall have the definitions set forth in the Agreement, unless otherwise defined herein. In the event of conflict between the terms and conditions set forth herein and those set forth in the Agreement, the terms and conditions set forth in the Agreement shall prevail. Tiburon will provide the Basic Support described in Section 2.1 (Basic Support) of the Agreement for the software applications identified in the table below. The annual .fee for such support shall be as set forth in the table below. Such support will commence upon the expiration of any applicable Warranty Period as set forth in the table below, CLIENT # - M195a12 Covered Hours _Mal(q, Model Serial Number Warranty Period A.p lication (24xi or of Authorized Server 8xQ Period Start Stop Date Date CAD 247 12 8/1/12 7/31/13 PRMS 8x5 12 8/1/12 7/31/13 ARS /MDS 8x5 12 8/1/12 7/31/13 Oracle 8x5 8/1/12 _ 7/31/13 Authorized Site 110 East Main Street Los Gatos, California 95031 Annual Fee $22,829.00 $36,623.00 $15,218.00 $ 3,317.00 Total $77,987.00 Page 1 of 1 2012 -2013 Master Support Agreement Exhibit 2, Covered Applications ➢bchibit A MASTER SUPPORT AGREEMENT /o�'f 0 This Master Support Agreement (this "Agreement") is entered into this 1st day of August, 2010 (the "Effective Date"), by and between Town of Los Gatos (the "Client") and Tiburon, Inc,, a Virginia corporation having its primary place of business at '6200 Stonerldge Mall Road, Suite 400, Pleasanton, California 94588 ("T.IbUrOn")., WHEREAS, the Client has determined that it desires to obtain from 'Tiburon certain support services relating to a computer automated -system previously implemented by Tiburon for the Client; and WHEREAS, Tiburon -is qualified to provide the support services -specified in this Agreement and, subject to the terms and conditions set forth In this Agreement, Tiburon desires to provide such support services; NOW THERE ORE, In consideration of the mutual covenants contained herein., the Client and Tiburon hereby agree as follows: "I. Definitions Capitalized terms used -herein and in any exhibit hereto shall have the definitions set forth on Exhibit 1 attached hereto and incorporated herein by this reference, unless otherwise defined herein.. 2, Scope of Work 2A. Basic Support. Subject to the terms and conditions set forth in this Agreement, Tiburon shall provide the following support for the Covered Applications ("Basic Support"), (a) ; Application Errors. Tiburon will correct Errors in any of the Covered Applications discovered by.2. the Client during the term of this, Agreement, provided (a) the Client provides all Information regarding such Error that may be requested by Tiburon In accordance with Section 5,1 hereof. (Technical Service Requests], (b) such Error is reproduced by the Client in accordance with Section 5,13 hereof (Error Reproduction), and (c) the Client has provided Tiburon with remote access to the System as required under Section 5,2 hereof (Remote Access), (b) .: Client Support Center, 'Tiburon will provide toll-free telephone support for operational and technical assistance. Support for Priority I Calls relating to Tiburon's Computer Aided Dispatch (CAD) -software applications, Corrections 'Management (J,zIIRECO.RDS, Premier IMS, JIMS and CorrMadica) software applications, Mobile Dispatch (MobileCOM) software applications, Message Switch System (MSS) software. applications and any critical Interfaces to those systems shall be available twenty four hours a day, seven days a week (247). Support for all other calls and other Tiburon applications will be available during "Tiburon's normal support hours of .8:00 a.m. to 5:30 p.m. local time in the Client's time zone (not including weekends and Tiburon holidays). 'Tiburon reserves the right to charge reasonable call-out fees for any call received other than during Tiburon's normal -support hours, Additional information regarding call-out fees is described In Exhibit 7 .(Warranty & Maintenance Support — Guidelines .& Optiond). M Account Manager. Tiburon Will designate, in a written notice delivered in accordan'ce with Section 24 hereof -(Notices), a single individual to act as the account manager for purposes of coordinating. technical- support. as set forth herein (the "Account Manager"), The Account Manager shall ensure Tiburon's compliance with, and shall coordinate appropriate schedules In connection -with, Its obligations set forth herein. Tiburon may change the individual designated hereunder by providing the Client with advance written notice delivered In accordance with Section 24. hereof (Notices) designating the new individual authorized to act as the Account Manager, Page 1 of 14 Master Support Agreement f o (d) Status Reports. Tiburon will provide the Client with a monthly status -report (a "Monthly Status "'Report"), Each Status Report will include a summary of site activity and a summary of requests by the Client for technical services delivered in accordance with Section 5,1 hereof (Technical Service, Requests), Additional information that may be contained in the monthly status report is described In Exhibit 7 (Warranty & Maintenance Support - Guidelines & Options), Each Monthly -Status Report will be- delivered to the Client In accordance with thel notice provisions set forth. In Section 24 hereof (Notices). (e) Back -Ups, Subject to the Client's obligations under Section 5;4 hereof (Maintenance and Back -Ups), Tiburon will support the Client in maintaining and /or updating the. Back Up Schedule and Procedures, attached hereto as Exhibit 6, and, as further defined in Exhibit 7 (Warranty & Maintenance Support - Guidelines & Options), the Systems Administration Support Services document (attached hereto as Exhibit 8), and the DBA Services document (attached hereto as Exhibit 9), . (f) NOIC, NISRS /UCR, and NFIRS Updates. Tiburon will provide .updates to the Covered Applications for Client use and Installation in response to legal requirements mandated by the National Crime Information Center (NCIC), the National Incident Based Reporting System /Uniform Crime Reporting: (NIBRS /UCR), and the National Fire Incident Reporting System (NFIRS) when such requirements necessitate modification(s) to the Source Code relating to any Covered Application and are necessary for the proper performance of the Covered Application, Any other changes, including but not limited to, those mandated or offered by any state, county, city or municipal governmental entity, as well as changes to any Protocols are outside the scope of this Agreement, (g) Database Administration (013A) Support. DBA support will be provided in the manner as set forth in Section 43, "Level 1 DBA Support ", of Exhibit 7 (Warranty & Maintenance Support - Guidelines & Options), and as further described in the DBA Services document (attached hereto as Exhibit 9). (h) System Administration (SA) Support. SA support will be provided In the manner as set forth in Section 4.4, "Level 1 System Administration Support ", of Exhibit 7 (Warranty & Maintenance Support - Guidelines & Options),. and as further described in the Systems Administration Support Services document (.attached hereto as Exhibit 8). (1) Verstnn Management Program. The Version Management Program (VMP) provides Clients with eligible products with• ongoing product enhancements and new -features, VMP will be provided in the manner as set forth In Section 4.5,. "Version Management Program",, of Exhibit 7 (Warranty & Maintenance Support - Guidelines & Options). . 2.2. Support.. Options.. In addition to Basic. Support, the Client may purchase support options described in Exhibit 7 (Warranty & Maintenance Support - Guideline's & Options). The terms and conditions for each Support Option :shall be set forth in a separate exhibit which, upon payment of the required annual fee for such Support Option, shall automatically become part of this Agreement and shall be subject to the terms hereof,. The Client may discontinue any Support Option by providing Tiburon at least ninety (90) calendar,days prior written notice identifying the Support Option to be discontinued; provided, however, that such discontinuance shall not be effective until the next occurring Payment Date. 2.3. Enhancements. From time to time, the Client may request Tiburon to provide under this Agreement services- and;, materials to furnish, Install and implement an Enhancement, The installation and Implementation of such: Enhancement shall be ,provided on a fixed -price basis, No Enhancement shall be provided under this Agreement unless •(a) this Agreement I's amended as necessary or appropriate to Incorporate the Enhancement Terms relating to the Enhancement;. (b) the Enhancement Terms are attached to this Agreement as a new exhibit and, except as specifically, set forth therein, are subject to the terms of this Agreement; (c) the enhancement Terms Include terms regarding final acceptance of the Enhancement; Page 2 of 14 Master Support Agreement . • I I (d) the Enhancement Terms provide that, upon final acceptance of the Enhancement, Exhibit 2 to this Agreement shall be amended to Incorporate the Enhancement as a -Covered Application subject to the ClIent's payment of any necessary additional support fees relating to the Enhancement; and (e) the Enhancement 'Terms provide that, upon final. acceptance of such Enhancement, the Software License Agreement shall be considered amended as necessary or appropriate to grant to the Client the appropriate rights to use the Enhancement, subject to payment in full of all amounts due under the Enhancement Terms, 2.4. Out of Scope Services. From time to time, the Client may request Tiburon to provide under this Agreement certaln'Out of Scope Services. Tiburon shall be under no firm obligation to perform any Out of Scope Services., but shall undertake to make a good faith effort to perform such services to the extent that it Is capable of doing so without substantially Interfering with its other -obligations under this Agreement Or with its obligations to Its other clients, Any Out of Scope Services shall be provided, at Tiburon's option, on a fixed -quote basis with payment milestones or on a time and material- basis at Tiburon's then current technical service i * 'ales plus all related travel, per diem and other expenses Invoiced as Incurred. No Out of Scope Services shall be provided under this Agreement unless: (a) this Agreement Is amended as necessary or appropriate to Incorporate the terms relating to the Out of Scope Services; (b) those terms are attached to this Agreement as a new exhibit and, except as specifically -set forth therein, are subject to the terms of this Agreement; and, -(c) those terms Include agreed-to criteria regarding completion of the -work, if applicable. ' 3. Terra_ The term of this Agreement shall commence on, the Effective Date and shall continue in effect until terminated in accordance, with Its terms. 4. Fees, and Payment 4.1. AnnU8.1 Support Fees (a) .: Basic Support. The Client shall pay an annual fee for Basic . Support for each of the Covered Applications, The -amount of Such annual fee shall be set forth on Exhibit 2 attached hereto and incorporated herein by this reference and shall be paid :in advance on or prior to the expiration of any Warranty Period applicable to such Covered Application and, thereafter, on each Payment Date during the term of this Agreement. (b) Support Options. The CHent shall pay an annual fee for any requested Support Options, The ,Amount Of Such annual fee shall be -set forth on the exhibit pertaining to such Additional Support Option and shall be paid on or prior to the commencement of any services relating to such Additional Support Option and, thereafter, on each Payment Date during the term of this Agreement unless such Additional Support Option has been discontinued in accordahce with Section 2.2 hereof (Support Options), (q) Enhancements and Out of Scope Services. Payment shall be as stated In the applicable Enhancennent/Out of Scope Services proposal, 4.2. Annued Adjustments. The fees payable pursuant to Section 4.1(a) and Sectlorl 4.,1 (b) hereof (Annual Support Fees) may be Increased on an annual basis by five percent (5%) Upon at least thirty (30) days prior written notice to the Client. Such increase shall become effective. on the next occurring Payment Date, 4.3. Involces. Invoices pursuant to Section 4,1 hereof shall be payable on or prior to each Payment Date during the term of this Agreement or shall be payable within thirty (30) days of receipt unless otherwise specifically provided, 4.4. Consequences of rate -Payment. Failure to pay any amount owing hereunder when such amount is due shall constitute a material default under this Agreement and would result In the termination of Page 3 of 14 'Master Support Agreement ' r. this Agreement in all or part. The Client shall reimburse Tiburon for all collection fees, Including reasonable attorneys' fees and expenses, Incurred by Tiburon in connection with the collection of any amount owing hereunder. Tiburon reserves the right to charge the Client an administrative fee to reinstate any part of Its support that has' lapsed due to nonpayment. The administrative fee shall equal ten percent (10 %) of the then - current annual support fee for the lapsed support, S. Client Responsibilities 5.1. Technical Service Request. The Client shall provide all information requested by Tiburon- necessary to complete Its Technical Service Request form for each request for technical services, Enhancements, and Uut*of Scope Services. 5.2. Remote Access, Ensure Tiburon (Cisco) VPN remote access Including dedicated high speed (.T1 (1.544mb /s)- or greater bandwidth). Access to Client servers on Client site(s) must be Interactive, Including but not limited to PC Anywhere, Remote Desktop, VNC, telnet, secure shell (ssh) , and applioati on- level TCP /IP socket connectivity as determined necessary by Tiburon, Access provided to Tiburon must include local administrative control. of all servers involved in Tiburon Implerrm.entation. in addition, Tiburon requires the ability to dynamically upload /download files to the server(s), without third -party intervention. Client shall Install and monitor during the term of this Agreement a dedicated high -speed data connection, as set forth above, and any other networking equipment specified in the Site, System and Network Specifications document (Exhibit a) to provide Tiburon remote. access to the System. Tiburon shall not be responsible for any costs relating to the procurement,, installation, maintenance and use of such equipment and all associated telephone use charges. Tiburon shall use the data connection solely in connection with the provision of its services hereunder, The Client may be required to. run tests deemed necessary by Tiburon following each remote access as requested by Tiburon. 5 ;3. Physical Access. The Client shall provide Tiburon with physical access to the System at any time during normal business hours. After normal business hours, the Client shall ensure that one of the Technical Support Coordinators designated under Section 5.11 hereof (Technical Support Coordinators) can be reached by phone or pager to (a) provide physical' access to the System within two (2) hours of `fiburon's request for such access, and (b) remain on-'site until Tiburon determines that there is no longer a need for physical access. 5.4. Maintenance and Sack -Ups. The Client shall ensure that maintenance and back -up activities relating to the Covered Applications and the System, Including without limitation backing up databases and journal logs, purging. out of date records and running. reports and' performing diagnostics, are carried out in accordance with the schedule and methodology specified in Exhibit 6 (C:3aclt Up Schedule and Procedures) attached hereto and Incorporated herein by this reference. i 5.5. Data Input. The Client shall enter, update and maintain the input data, as required for satisfactory operation of the Covered Applications, and be responsible for the accuracy of all Client- provided data. 5.6. • Third -Party Product Support. Tl e Client shall obtain, pay for and maintain in effect during the term of this Agreement the technical support contracts for certain Third - Party Products as specified on Exhibit 4 attached hereto and, incorporated; herein by this reference, and shall ensure that, In addition to authorizing the Client to: request support services there under, each such support contract also expressly authorizes Tiburon to request support services there under on the Client's behalf. 5.7. System Security. *rhe Client shall ensure that the security of the System conforms in all respects to the federal, state, and /or local mandated law enforcement telecommunications requirements, 5.8, System Change, Alteration, or Modification. The Client shall ensure that, with respect to each Covered Application, such Covered Application Is Installed only on the Authorized' Server and only at the Authorized Site, The Client shall ensure that each Authorized Site conforms In all respects to -the Site Page 4 of 14 Master Support Agreement I I I I Specifications set forth on Exhibit 5 attached hereto and -incorporated herein by this reference (the "Site, System and Network Specifications "). The Client shall ensure that no change, alteration or modification is made to the System Configuration without the express prior written consent of Tiburon; provided, however, that said consent is not intended to constitute in any manner TbUron'.s approval, certification, endorsement, or warranty of the System ConfIg,ur&tIon or System performance, 5.9. Database Change Authorization. Client shall maintain a system to ensure that only authorized personnel have the ability to make changes to the Client's database and that -a list of all such authorized personnel (and any updates thereto) 'be promptly -delivered to the 'Tiburon Client Support Center. Each request for any change to a Client's database shall be accompanied by a signed letter of authorization from the Client's Authorized Client Representative, and shall contain all details of the requested -change. Tiburon cannot assist GlIentpe•sonnel other than those on 'the most current authorization list. 5.10. Authorized ClIent,11epresentatIve. The CIIbnt shall clesignate,ina written notice delivered In accordance with Section 24 hereof (Notices)., a single individual to act :as .the Client's authorized representative for purposes of this Agteement (the "Client Representaftive"). Such individual (a) must be authorized to act on the Client's behalf with:respect to all matters relating to this Agreement; (b) shall ensure the Client's compliance with its responsibilities under this Agreement; and (c) shall coordinate ordinate appropriate schedules In connection with 'Tiburon's services under this Agreement, The Client may change the individual designated hereunder by .providing Tiburon advance writ-ten notice delivered In accordance with. Section 24 hereof (Notices) designating the new individual authorized to act as the Client'Representative, 5.11. Techn:lcal Support Coordinators. The Client shall designate, in a written notice delivered in accordance with Section 24, hereof (Notices), one or more individuals to act as the Client's technical support coordinator (a "'Technical Support Coordinator"), The Client shall ensure that each Technical Support Coordinator designated hereunder shall have received the training required under Section 5,12 hereof (Training) and shall otherwise be familiar with the Covered Applications and the System. The Client shall ensure that, at all times, a Technical Support Coordinator Is available (a) to screen operational assistance calls and handle operational problems, where appropriate; (b) to provide acoass to the System as required under Section 5,3 hereof (Physical Access); (c) to provide on-site technical assistance as required by Tiburon to aid Tiburon In performing its services' hereunder; and (d) to review all -Monthly Status Reports delivered hereunder, The Client may change any Individual designated hereunder by providing Tiburon with advance written notice delivered, in accordance with Section 24 'hereof (Notices) designating the new Individual authorized to act as a Technical Support Coordinator, 5.12. Train'llng. The Client shall ensure that all Technical Support Coordinators and other personnel have received the training specified on -Exhibit 3 attached hereto and incorporated herein by this reference, and otherwise maintain sufficient personnel with sufficient training and experience to perform its obligations under this Agreement. -5:13. Error Re ' production. Upon detection of any Error in any of the Covered Applications, the Client shall provide "Tiburon a listing of command input, resulting output and any other data, Including databases and back-up systems, that Tiburon may reasonably request in order to reproduce operating conditions similar to those present when the Error occurred, 6. Exclusions 6.1 Failure to Observe Obligations. Basic Support provided hereunder is expressly conditioned on the observance of the responsibilities of the Client set forth in Section 5 hereof (Client Responsibilities) and .In the Software License Agreement, Any Additional Support Option provided hereunder is expressly conditioned on the observance of the responsibilities of the Client set forth in Section 5 hereof .(Client Responsibilities.), In the Software License Agreement and in the exhibit pertaining to such Additional Support Option. 6.2 Erroneous Reported Problems. If "Tiburon performs diagnosis of erroneously reported Page .5 of 14 Master Support Agreement problems, the Client may be charged for such services at Tiburon's then current technical service rates plus all related travel, per diem and other expenses invoiced as incurred, 6.3. Failure of Remote Access. If the Client falls for any reason to provide remote access to the System. as required by Section 5,2 hereof (Remote Access), Tiburon will, at the Client's request, provide on -site services to correct an Error to the extent otherwise required hereunder and will charge the Client for such services at "I "iburon's then current technical service rates plus all related travel, per diem and other expenses invoiced as Incurred, 6.4. Unauthorized Modifications. Tiburon is under no obligation to correct any Error In any of the Covered Applications if the Error is due to a modification or alteration to such Covered Applicatlon in violation of the terms of the Software License Agreement or relates to any portion of such Covered Application that has been affected by software not developed and /or installed by Tiburon, Tiburon is under no obligation to correct any problems caused by any modification • or alteration to any component of the System or to the System Configuratlon- in violation of the terms of this Agreement or caused by software or hardware not developed and /or Installed by Tiburon, If requested by the Client, Tiburon will provide technical suppbrt services to resolve such problems pursuant to Section 2,4 .hereof (Out of Scope Services). 6.5. Unauthorized Use. Tiburon is under no. obligation to .correct any Error in any of the Covered Applications or .any problems with any other component of the System if such Error or other problem is caused by (a) accident, neglect, misuse or abuse on the part of any party other than Tiburon; (b) Is due to exposure to conditions outside the range of the environmental, power and operating specifications provided by 'Tiburon in the Site Specifications set forth in Exhibit 5; or (c). use of any of the Covered Appil'cations or any other component of the System for any purpose other than that for which It was originally acquired. if requested by the Client, Tiburon will provide technical support services to resolve such problems pursuant to Section 2A :hereof (Out of Scope Services), 6.6. Third -Party Products. Tiburon shall have no responsibility for correcting or resolving any errors, defects or failures In any Third -Party Products.. Tiburon''s only obligation with respect to such. Third - Party Products is to ass.ist:with the coordination of support services with the appropriate third -party vendor to the extent such supportservices are available to the Client. 6.7. Third-Rarty Product Compatibility. Unless specified on Exhibit 2, Tiburon shall have no responsibility for any Third -Party Product provided and Installed on or Integrated into the System by any other .party without T:iburon's prior written authorization, Including but not limited to responsibility for the installation and integration of any such "Third =Party Prod'uots, the condition, operation and performance of any such Third -Party Products, the compatibility of any such Third-Party Products with the Covered Applications, and any Impact any such, Third•Party Products have on the overall operation or performance of any of the Covered Applications or any other component of the System, If requested by the Client, Tiburon will provide technical. support services pursuant to Section 2.4 hereof (Out of Scope Services) to resolve any operation or performance problems relating to any of the Covered Appilcations or any other component of the System caused by any such Third -Party Products or to assist with the integration of any such Third -Party Products with or Into any of the Covered Applications or any other component of the System, 6.8. General Disclaimer. EXCEPT AS, MAY BE EXPRESSLY SET FORTH HEREIN, "f IBURON DISCLAIMS ALL WARRANTIES WITH RESPECT TO ANY OF THE COVERED APPLICATIONS OR ANY OTHER COMPONENT t.OF THE SYSTEM, EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, ANY WARRANTIES OR CONDITIONS OF SUITABILITY, MERCHANTABILITY, SATISFACTORY QUALITY, TITLE, NON- ;INFRINQEMENT AND /OR FITNESS FOR A PARTICULAR PURPOSE, 7. Protection of Confidential and proprietary Information 7.11. All Client Confidential Information shall be held In strict confidence by Tiburon, and Tiburon shall not, without the Client's prior written consent,. disclose such Information to any person or entity other Page 6.of iii Master Support Agreement than to ' Tiburon's employees or consultants legally bound to abide by the terms hereof and having a need to know such .information in connection with Tiburon's performance of the services hereunder, or use such information other than in connection with the performance of the services hereunder. `The term "Client Confidential Information" shall 'include all Client data and other written information of a confidential nature clearly labeled by the Client as being confidential, Tiburon understands and agrees that the unauthorized use or disclosure of Client Confidential Information may irreparably damage the Client.. in the event of Tiburon's breach or threatened breach of any of the provisions in this Section 7.1,. the Client shall be entitled to an injunction obtained from any court having appropriate jurisdiction restraining Tiburon from any unauthorized use or disclosure of any Client Confidential Information. 7.2. All Tiburon Confidential Information shall be held in strict confidence by the Client, and the Client shall not, without Tiburon's prior written consent, disclose such information to any person or entity other than to the Client's em,pio,yees or consultants legally bound to abide by the terms hereof and having a need to know such information In connection with the Client's performance of its obligations hereunder, or use such .information other than in connection with the performance of its obligations hereunder. The terra "Tiburon Confidential information" shall Include the Covered Applications arid. all other Tiburon software applications, whether or not licensed to the Client, as well as, any written Information disclosed by Tiburon to the Client under this Agreement, including, but not limited to, any trade secrets, confidential knowledge, data, Information relating to Tiburon products, proceuses, know -how, designs, formulas, methods, developmental or experimental work, improvements, discoveries, plans for research, new products, marketing. and selling, business plans, budgets and unpublished financial statements, licenses, prices and costs, suppliers and clients, information obtained through contact with Tiburon's clients, proprietary information of Tiburon's clients, and information regarding the skills and compensation of Tiburon's employees or other consultants. The Client understands and agrees that the Tiburon Confidential Information constitutes a valuable business asset of Tiburon, the unauthorized use or disclosure of which may irreparably damage `i °ibu.ron. In the event of the Client's breach or threatened breach of any of the provisions in this Section 7.2, Tiburon shall be entitled to an injunction obtained from any court having appropriate jurisdiction restraining the Client from any unauthorized use or disclosure of any Tiburon Confidential Information. 7.3. Notwithstanding Section 7.1 or Section 7.2 hereof, neither Client Confidential Information nor Tiburon Confidential Information shall include information which the recipient can demonstrate by competent written proof. (a) is now, or hereafter becomes, through. no act or failure to act on the part of the recipient, generally known or available or otherwise part. of the public domain; (b) is rightfully known by the recipient without restriction on use .prior to Its first receipt of such information from the disclosing .party as evidenced by Its records; (c) is hereafter furnished to the recipient by a third party authorized to furnish the information to. the recipient, as a matter of right and without restriction on disclosure; or (d) is the subject of a written perm ission by the disclosing party to disclose. ' 7.4. 'Notwithstanding Section 7.1 or Section 7.2 hereof., or any other .provision hereof, disclosure of Client Confidential Information or "Tiburon Confidential Information shall not be precluded if: (a) such disclosure is in .response to a valid order of a court or other governmental body of the United States or any political subdivision thereof; provided, however, that the recipient of such confidential information shall first have given notice to the other party and shall have made a reasonable effort to obtain a protective order requiring that the information to be disclosed be used only for the purposes for which the order was issued; (b) such disclosure is necessary to establish rights or enforce obligations under this Agreement, but only to the extent that any such disclosure is necessary; or (c) the recipient of such confidential information received the prior written consent to such disclosure from the disclosing party, but only to the extent permitted in such consent. 7.5. The obligations hereunder with respect to each Item of Client Confidential Information and Page 7 of 14 Master Support Agreement Tiburon Confidential information shall survive the termination of this Agreement. 8. Insurance Tiburon shall procure at its own expense and maintain at all tlmes'wh Ile, Tiburon Is performing services under this Agreement at the Client's facilities, (a) a comprehensive general liability Insurance policy including coverage for contractual liability for obligations assumed under this Agreement, blanket contractual liability, products and completed operations and owner's 'and, contractor's protective Insurance; and (b) comprehensive automobile liability insurance policy including owned and non -owned automobiles, Liability coverage shall be equal to or greater than the. limits for claims made under the California Tort Claims Act with minimum coverage of $1,000,000 per occurrence (.combined single limit for bodily Injury and property damage claims) or $1,000,000 per occurrence for bodily Injury and $100,000 per occurrenoe for property damage, Liability coverage shall be provided on. an "occurrence basis. "Claims made" coverage will not be acceptable, Upon the Client's written request, Tiburon shall provide the Client with a certificate of Insurance evidencing Tiburon's compliance with the requirements of this section, Any such certificate• shall provide that coverage under the policy cannot be canceled and restrictive modifications cannot be made until at least. thirty (00) days prior written notice has been given to the Client, 0. Limitation of Liability Tiburon's liability to the Client for any claim, whether in tors, contract or otherwise, shall be lirniteflo the annual maintenance fees paid hereunder for the period in which the cause of action occurred. IN NO EVENT SHALL Tiburon BE LIABLE TO ANY PARTY FOR LOSS O.R DAMAGES DUE TO ERRORS IN ANY OF THE COVE -RED APPLICATIONS, OPERATOR ERROR, OR DATA CORRUPTION OR INACCURACIES, IN NO EVENT SHALL. EITHER PARTY 8E LIABLE FOR ANY DAMAGES RESULTING FROM LOSS OF PROFIT OR BUSINESS, OR FOR ANY SPECIAL, INDIRECT, PUNITIVE, INCIDENTAL OR CONSEQUENTIAL DAMAGES,. WHETHER. ARISING IN'AN ACTION` OF CONTRACT, TORT OR OTHER LEGAL 'THEORY AND REGARDLESS OF WHETHER SUCH PARTY KNEW OR SHOULD HAVE KNOWN OF THE POSSIBILITY OF SUCH DAMAGES, THE LAWS IN SOME STATES DO NOT ALLOW THE EXCLUSION OR LIMITATION OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, AND THE ABOVE LIMITATION OR EXCLUSION SHALL BE CONSTRUED SO AS TO GIVE IT THE MAXIMUM PRACTICAL EFFECT WITHOUT VIOLATING SUCH' LAWS. 10. Informal Dispute Resolution 10.'1. The parties to this Agreement shall exercise their best efforts 'to negotiate and settle promptly any dispute that may arise with respect to this Agreement in accordance with the provisions set forth In this Section 10.1`, (a) If either party (the "Disputing Party ") - ;disputes any provision of this Agreement, or the Interpretation thereof, or any conduct by the other party under this Agreement, that party shall bring the matter to the attention of the other.party at the earliest possible time in order to resolve such dispute. (b) If such dispute Is not resolved by the Account Manager and the ".echnical Coordinators responsible for, the subject matter of the dispute within ten ('1'0) .business days, the Disputing Party shall deliver to the first level of representatives below a written statement (a "Dispute Notice ") describing the dispute in detail, Including any time commitment and any fees or other costs involved. (o) Receipt by the first level of representatives of a' Dispute Notice shall commence a time period within which the respective representatives must exercise their best ;effort to resolve the dispute. If the respective representatives cannot resolve the dispute within the given time period, the dispute shall be escalated to the next higher level of representatives in the sequence as set forth below. Page 8 of 14 Master Support Agreement (d) Escalation Timetable LRULslngr I.g_ to 61, 6" to 10th III' to 151, If the parties are unable to resolve the dispute in accordance with the escalation procedures set forth below, the parties may assert their rights under this Agreement, Tiburon LjeaLe�sentat�le g. Director of Account Management Operations Manager Executive Officer Client Rer)resentative Client Representative .[Client Designated] [Client Designated] 10.2. Notwithstanding the fact that the parties may be attempting to resolve a dispute in accordance with the informal dispute resolution procedures set forth in Section 10,1 hereof, the parties agree ree to continue without delay all their respective responsibilities Linder this Agreement that are not affected by the dispute, . 10.3. In the event that the parties are unable to resolve a dispute by complying with the informal dispute resolutions procedures set forth in Section 10.1 hereof, the dispute s-hal.1-be -settle-d-by arbitration In accordance with Section 16 hereof (Arbitration), 10:1. Notwithstanding the foregoing, either party may, before or during the exercise of the informal dispute resolution procedures set forth In Section 10.1, apply to a court having jurisdiction for a temporary restraining order or preliminary injunction where such relief is necessary to protect its -interests. pending completion of such informal dispute resolution procedures, 11. Tema Ination 11.1. Termination for Failure of License. In 'the event that the license relating to any of the Covered Applications Is terminated or becomes unenforceable for any reason, TIburon's obligation to provide any support hereunder for such Covered Application shall Immediately and automatically terminate, 11.2. Termination for Payment Defaults. In the event that the Client falls to pay when dLIE) all or any portion of the annual fees :required under Section 4.1 hereof (Annual Support Fees)., Tiburon may imi,riediately, and without further notice to the Client, terminate this Agreement or suspend all or any portion of the services hereunder for all or any portion of the Covered Applications until the Client's aCOOLint Is brought Current. 111.3. Termination for Other Defaults. Subject to completion of the dispute, rep olution procedures set forth in Section •0,1 hereof (Informal Dispute Resolution), in the event that either party hereto materially defaults in the performance of any of its obligations hereunder (other than payment defaults covered under .Section 11,.2 hereof), the other party may, at its option, terminate this Agreement, by providing the defaulting party thirty (30) -days' prior written notice of termination delivered in accordance with Section 24 hereof (Notices), which notice shall identify and describe with :specificity the basis for such termination. If, prior to the expiration of such notice period, the defaulting party cures such default to the satisfaction of the non-defaulting party (as evidenced by written notice delivered by the non-defaulting party in accordance with Section 24. hereof),, termination shall not take place, VIA Termination Without Cause. :Either party hereto may terminate this Agreement without -cause by providing the other party at least ninety (90) days' prior written notice of termination delivered in accordance with Section 24 hereof (Notices). The effective date for any termination pursuant to this Section 11,4 shall be the next occurring Payment Date, Page '9 of 14 Master Support Agreement 11.1 Consequences of Tbrmination. Upon termination of this Agreement for whatever reason, (a) Tiburon shall be under no further obligation to provide support or any other services hereunder; (b) Tiburon shall return to the Client all Client Confidential Information In Tiburon's possession and shall certify in a written document signed by an officer of Tiburon that all such information has been returned; (c) the Client shall return to Tiburon all Tiburon Confidential Information In the Client's possession (Including, without limitation, all devices, records, data, notes, reports, proposals, lists, correspondence, specifications, drawings, blueprints, sketches, materials, equipment or other documents or property relating to such Tiburon Confidential Information and all copies of any of the foregoing (in whatever medium recorded) but not including any such. Information licensed to,the Client under the Software I- icense Agreement) and shall certify in a written document signed by the Client Representative Identified in Section 5,10 hereof (Authorized Client Representative) that all such Information has been returned, All provisions of this Agreement that by their nature would reasonably be expected to continue after the termination of this Agreement shall survive the termination of this Agreement, 12. Independent Contractor Status The Client and Tiburon are -Independent contractors under this Agreement, and nothing herein shall be construed to• create a partnership, Joint venture, or agency relationship between the parties hereto, Neither party shall have any authority to enter Into agreements of any kind on behalf of the other and shall have no power or authority to bind or obligate the other In any manner to any third party. The employees or agents of one party shall not be deemed' or construed to be the employees or agents of the other party for any purpose whatsoever, Each party hereto represents that it is acting on its own behalf and is riot acting as an agent for or on behalf of any third party, 13. , Assignment Neither party hereto may. assign its rights or obligations under this Agreement without the prior written. consent of the other party,. whlch consent shall riot be unreasonably withheld; provided, however, that Tiburon may assign this Agreement to its successor in connection with a sale of its business without obtaining- consent of any party. Subject to the foregoing, each and every covenant, term, provision and agreement contained in! this Agreement shall be' binding upon and Inure to the benefit of the parties' permitted successors, executors, representatives, administrators and assigns, 14, No Third Party Beneficiaries This Agreement is entered into for the sole behefit of the Client- and Tiburon and, where permitted above, their permitted- successors, executors, representatives,, administrators and assigns, Nothing in this Agreement shall be. construed as giving any benefits, rights, remedies or claims to any other person, firm, corporation or other entity, including, without .limitation, the general public or any member thereof, or to authorize anyone not a party to this Agreement to maintain a suit for personal Injuries, property damage, or any other relief in law or equity In connection with -this Agreement. 15." Governing Law All questions. concerning the validity, operation, interpretation, construction and enforcement of any .terms,. covenants. or conditions of this Agreement shall in all respects be governed by and determined in accordance with, the .laws of the State of California without giving effect to the choice of law principles thereof, The United' Nations Convention on the International Sale of Goods shall not -apply to any transactions contemplated by this Agreement, Page 10 of 1*4 Master Support Agreement 16. Arbitration All questions concerning the validity, operation, interpretation, construction and enforcement of any terms, covenants or conditions of this Agreement, or the breach thereof, must be submitted to and resolved by-final and binding arbitration by the American Arbitration Association In accordance With its Commercial. Arbitration Rules then In effect. The parties understand and agree that the arbitration will be instead of any civil litigation, except that either party may petition a court for a provisional remedy pursuant to Code of C'IvII Procedure Section 1281.8, and that the arbitrator's decision will be final• and binding to the maximum extent permitted by law and enforceable by any court having jurisdiction thereof. 17. Venue All legal proceedings brought In connection with this Agreement may only be brought in a state or federal court located the County of Santa Clara In the State'of California. Each party hereby agrees to submit to the personal jurisdiction of those courts for any -lawsuits filed there against such party arising under or In connection with this Agreement, '18. Advice of Counsel Each party hereto has been afforded the opportunity to consult with Counsel of its choice before entering into this Agreement, 119. Amendment No amendment or other modification of this Agreement shall be valid unless pursuant to a written instrument referencing this Agreement signed by duly authorized representatives of each of the parties hereto. 20. waiver In order to be effective, any waiver of any-right, benefit or power hereunder must be in writing and signbd by an authorized representative of the party against whom enforcement of such waiver would be sough-(, It being Intended that the conduct or failure to act of either, party shall Imply no -waiver. Neither party shall by'mere lapse of time without giving notice or taking other action hereunder be deemed to have waived any breach by the other party of any of the provisions of this Agreement. No waiver of any right, benefit -or power hereunder on a specific occasion shall be applicable to any facts or circumstances other than the facts and circumstances specifically addressed by such waiver or to any future events, even if such future events involve facts and circumstances substantially similar to those specifically addressed by such waiver. No waiver -of any right, benefit or power hereunder shall constitute, or be deemed to constitute, a waiver of any other .night., benefit or power hereunder, Unless otherwise specifically set forth herein, neither party shall be required to give notice to the other party, or to any other third party, to enforce strict adherence to all terms of this Agreement. Page 11 of 14 Master Support Agreement 21. Force Majeure Neither party will be liable for any failure or delay in the performance of Its obligations under this Agreement (and the failure or delay will not be deemed a default of this Agreement or grounds for termination) If both of the following conditions are satisfied. (1) the failure or delay could not have been prevented by reasonable precautions, and cannot reasonably be circumvented by the nonperforming party through the use of alternate sources, work - around plans, or other means; and (2) the failure or delay Is caused, directly or indirectly, by reason of fire or other casualty or accident; strikes or labor disputes; inability to procure raw materials, equipment, power or supplies; war, terrorism or other violence; any law, order, proclamation, regulation-, ordinance, demand, or requirement of any governmental agency or Intergovernmental body other than a party hereto; or any other act or condition beyond the reasonable control of the non- performl'ng, party, Upon the occurrence of an event which satisfies both of the above-conditions (a "Force Majeure Event "), the non - performing party will be excused' from any further performance of those obligations under this Agreement affected by the Force Majeure Event for as long as (a) the Force Majeure Event continues;, and (b) the nonperforming party continues to use commercially reasonable efforts to recommence performance whenever and to whatever extent possible without delay. Upon the occurrence of a Force Majeure Event, the nonperforming party will immediately notify the other party by telephone (to be confirmed by written notice wlthln two (2) business days of the failure or delay) of the occurrence of a Force Majeure Event and will describe In reasonable detail the nature of the Force Majeure. Event, 22. Sevorability If any provision of this Agreement shall for any reason be held.to be Invalid, illegal, unenforceable, or in conflict with any law of a federal, state, or local government having jurisdiction. over this Agreement, such provision shall be construed so as to. make It enforceable to the greatest extent permitted, such provision shall remain in effect to the greatest extent permitted and the remaining provisions of this Agreement shall remain in: full force and effect. 23. Entire Agreement This Agreement sets forth the final, complete and exclusive agreement and understanding between Tiburon and the Client relating. to the subject matter hereof and supersedes all quotes, proposals understandings, representations, conditions, warranties, covenants, and all other communications between the parties (oral or written) relating to the subject matter hereof. Tiburon shall' not be bound by any.terms or conditions contained in any purchase order or other form provided by the Client In connection with this Agreement and any such terms and conditions shall have no force or effect, No affirmation, representation or warranty relating to the subject matter hereof by any employee, agent or other 'representative. of Tiburon shall bind. Tiburon or be enforceable by the Client unless specifically set forth In this Agreement,. 24. Notices All notices, requests, demands, or other communications required or permitted to be given hereunder shall be in writing addressed to the parties at their respective addresses set forth below and. shall be deemed to have been duly given when (a) delivered in - person; (b) sent by facsimile transmission indicating receipt at the facsimile number where sent; (c) one (1) business day after being deposited with a reputable overnight air courier service; or (d). three (3) business days after being deposited with the United States Postal ServlOe, for delivery by certified or registered mail,, postage pre -paid and return receipt requested. All notices and other communications regarding default or termination of this Agreement shall be delivered by hand or sent qy certified mall, postage pre -paid and return receipt requested, Gather party may from time to time change the notice address set forth below by delivering notice to the other party In accordance with this section setting forth the new address and the date on which it will become effective, Page '12 of 14 Master Support Agreement If to Tiburon: Tiburon, Inc. 6200 Stoneridge Mall Road, Suite 400 Pleasanton, California 945�8 .Attention: Contracts -Manager Phone; 925-621-2700 Fax: 925-621-2799. If to the Client: Town of Los Gatos, California Los Gatos/Monte Serenb Police Department Attention: Captain Alana Forrest 'I 10 East Main Street Los Gatos, California 95031 Phone: 408-354• -6859 Fax: 408-354-0576 25. Construction The paragraph and section headings used In this Agreement or In any exhibit hereto are -for convenience and ease, of reference only, and do not define, limit, augment, or describe the scope, ope, content or intent of this Agreement. Any term referencing time, me, days or period for performance shall be deemed. calendar days and not business days, unless otherwise expressly provided heroin. 26. Counterparts - This Agreement may be signed in two or more counterparts, each of which shall constitute an original, and both of which shall constitute one and the same document, (THE REMAINDER OF THIS PAGE IS INTENTIONALLY LEFT BLANK) Page 13 of 14 Master Support Agreement SIGNATURE,EjAGE IN WITNESS WHEREOF, the parties have hereunto set their hands as set forth below, Town of Los Gatos, Callfornla By: Name: Title: Approved as to form: M ATTEST FOR, THE TOWN OF LOS GATOS U1WrZx'd'—n=istra—to-r' --*---- I'llouron, Inc, By: aam Maria , z y ntie:CF0 Page 14 of 14 Master Support Agreement BXHIBIT 'i To Master Support Agreement DEFINITIONS This .Exhibit is attached to, incorporated into, and forms a part of the Master Support Agreement, dated August 1, 2010, between Tiburon and the {client (herein referred to as the "Agreement "), Capitalized terms used in the Agreement or an.y exhibit thereto shall have the definitions set forth herein unless otherwise defined In the Agreement. In the event of conflict between the terms and conditions set forth herein and those set forth In the Agreement, the terms. and conditions sot forth in the.Agreement shall, prevail, 1. " Accouht Manager" is defined In Section 2.1:(c) (Account Manager) of the Agreement. 2. "Additional Support Option" is defined in Section 2.2 (Support Options) of the Agreement. 3. "AseBullt Specifications" shall mean, with respect to any of the Covered Applications, the specifications for such Covered Application delivered to the Client upon the Client's acceptance of such Covered Application, as the same may be modified or supplemented from time to time to reflect Enhancements provided hereunder. 4. " Authorlxed Server" shall mean, With respect to any of the Covered Applications, the server identified as corresponding to such Covered Application on Exhibit 2 attached to the Agreement' and Incorporated therein by reference. 5. "Authorized Site" shall mean, with respect to any of the Authorized Servers, the address and room number Identified as corresponding the such Authorized Server on Exhibit 2 attached to the Agreement and incorporated therein by reference. b. "Basic Support" is defined in Section 2.1 (Basic Support) of the Agreement. 7. "client" is,defined in the preamble to the Agreement. 13. "Client Confidential Information" is defined in Section 7.1 (Protection of Confidential and Proprietary Information) of the Agreement. a. "Client Representative" is defined in Section 5,10 (Authorized Client. Representative) of the Agreement. 10. "Communications Interfaces" shall mean ethernet networking, serial connectivity to net clock and ANVAI_I, serial connectivity to FIACM.P, national, state and local governments, TCP /IP or other routing statements. '11. "Tiburon" is defined in the preamble to the Agreement. 12. "Tiburon Confiderftiai Information" is defined in Section 7.2 (Protection of Confidential and Proprietary Information) of the Agreement. '13. "Covered Applicatlori" shall mean each software application developed by Tiburon In accordance with the As -Built Specifications relating thereto which application is identified as a Covered Application on Exhibit 2 attached to the Agreement and Incorporated therein by reference, including all Maintenance Modifications thereto, all Derivative Works thereof, and all related Documentation. Page 1 of. 3 Master Support. Agreement Exhlbit 1., Detinitlons 14. Database- Administration (DBA) Support shall mean services available to Clients to assist In the. administration of the system database, 15, "[Derivative Works," shall mean, with respect to any Covered Application, any' translation, abridgement, revision, modification, or other form in which such Covered Application may be recast, transformed, modified, adapted or approved after the Effective [late. 16. "Dispute Notice" is defined in Section 10,1 (Informal Dispute Resolution) of the Agreement. 17. "Disputing (party" Is defined in Section 10.1 (Informal Dispute Resolution) of the Agreement, "Documentation" shall mean, with respect to any Covered Application, those printed Instructions,. manuals, and diagrams pertaining to and furnished with such Covered Applications. 19, "Effective Date" Is defined. in the preamble to the Agreement. 20. "Enhancement" shall mean, with respect to any Covered Application, a computer program modification or addition, other than a Maintenance Modification, that alters the functionality of, or adds new functions to, such Covered Application and that is integrated with such Covered Application after the Effective. Date, or that Is related to a given Covered_ApplIcation but offered separately by Tiburon after the Effective Date. 21. "Enhancement Term; shall mean, with respect to any Enhancement provided pursuant to the Agreement, the mutually negotiated terms and conditions specifically relating to an Enhancement and included as part of the Agreement in accordance with'Section 23 (Enhancements) thereof. 22.. "Error" shall mean, with respect to any Covered Application, a defect In the Source Code for such Covered Application that prevents such Covered Application from functioning. in substantial conformity with the As -Built Specifications pertaining thereto, 23. 'Valntenance Modification" shall mean, with respect to any Covered Application, a computer software change integrated with such Covered Application during the term of the. Agreement to correct any Errors therein, but that does not alter the functionality of such Covered Application or add now functions thereto, 24. Status report" is defined in Section 2.1(d) (Status Reports) of the Agreement. 25. "Object Code" shall mean computer programs assembled or compiled from Source Code in magnetic or electronic; binary form on software media, which are readable and usable by machines, but not generally readable by humans without reverse - assembly, reverse�complling, or reverse - engineering. 26. "Out of Scope Services" shall. consist of any services provided under this Agreement that are outside the scope of those services specifically and expressly Identified under, and provided pursuant to; Section 2,1 (Basic Support), Section 2.2 (Support Options) or Section 2.3 (Enhancements) of the Agreement. 27. "payment (Date" shall mean a specific annual date that is agreed to between the Client and Tiburon. 28. "priority 1 Call" shall mean a call requesting technical support for an Error In any Covered Application or a failure of the Authorized Server on which such Covered Application is installed that prevents continued use or operation of the System, impacts all or substantially all operators using the System, halts or severely impacts critical System operations or endangers the integrity of any database on any of the Authorized Servers. The term Priority 1 Call shall not Include calls requesting technical support relating. to a problem encountered with substantially less than all functions of a Covered Application or all records of a database on any of the Authorized Servers, or to a. failure in individual components of the network communications Page 2 of 3 Master Support Agreement Exhlblt 1,. Deflhitlons equipment, communications lines, terminals, workstations, printers, terminal servers or modems. Tiburon shall have exclusive authority for determining whether a.'rechnical Service Request constitutes a Priority 'I Call, .29. "Protocol" shall -mean the method governing exchange or transmission of data between devices. Exarnplas include., but are not limited to TCP/IP, SNA, CDPD, RNC, RS232, 30. "Site Specifications" is defined in Section 5.9 (System Change, Alteration., or Modification) of the Agreement, 31. "Software License Agreemefit" shall moan any software license agreement between Tiburon and the Client pursuant to which Tiburon has granted a limited licehse to use the Covered Applications in accordance with the terms and conditions thereof, as the same may be amended or otherwise modified from time to time. .32. "Source Code" shall mean computer programs written in higher-level programming languages, sometimes accompanied by English language comments. Source Code is Intelligible to trained programmers and may be translated to Object Code for operation. on computer equipment through the process of compiling, 33. "System" -shall mean the Client's computer 'automated system consisting of the Covered Applications combined with any of the Authorized Servers., the operating systems installed on each of the Authorized Servers, any database or other third party softwRi,e products Installed on any of the Authorized Servers, any PC or other workstation equipment having access to any of the Covered Applications, any Communications Interfaces iinstalled on any of the Authorized Servers, any network communications equipment and any other third party software., wiring, cabling and connections and other hardware relating to any such Authorized Servers, workstation or network communications equipment located at any of the Authorized -Sites, 34. "System Configuration" shall mean the configuration for the System other than the Covered Applications existing as of the Effective Date together with any modifications or alterations thereto pe I rmitted hereunder, Including without limitation the configuration of the Authorized Servers, any operating system ins-tailed on any of the Authorized Servers, any database or other third party software -products Installed on any of the Authorized Servers, any PC or other workstation equipment having access to any of the Covered Applications, any network communications equipment and any other third party software, wiring, cabling and connections and other hardware relating to any such Authorized Server, workstation or network communications equipment. located at any of the Authorized Sites, 35. "Tachnica : I Support Coordinator" Is defined In Section 5.11 (Technical Support (coordinators) of the Agreement, 36. "Third-Party Products" shall mean ail software and hardware components of the System other than the Covered Applications, 37. "Warranty Period" shall mean, with respect to any Covered Application, the warranty period for such Covered Application set forth on Exhibit 2 attached to the Agreerflent and incorporated therein by reference. Page 3 of 3 Master Support Agreement Exhibit 1, Definitions EXHIBIT 2 To Master Support Agreement COVERED APPLICATIONS This Exhibit is attached to, Incorporated into and forms part of the Master Support Agreement, dated August 1, 2010,. between the Client and 'Tiburon (herein referred to as the "Agreement "), Capitalized terms used herein shall have the definitions set forth In the, Agreement, unless otherwise defined herein, In the event of conflict between the terms and conditions set forth herein and those set forth In the Agreement, the terms and conditions set forth In the Agreement shall prevail, Tiburon will provide the Basic Support described in Section 2.1 (Basic Support) of the Agreement for the software applications Identified In the table below, 'The annual -fee for such support shall be as set forth In the table below, Such ,support will: commence upon the expiration of any applicable Warranty Period as set forth in the table below, CLIENT # - M195.11 Covered Hours �Make., Model, Serial Number Warranty Period Annual Fee lick ation 24.x7 or of Authorized: Server 8xG Period Start Stop Date Date CAD 247 12 8/1/1'1 7/31/12 $21,742.00 PRMS 8x5 12. 8/1/11: 7/31/12 - $34,879,00 ARS /MDS 8x5 12 8/1/11, 7/31/12 $14,493,00 Oracle 8x5 12 8/1/11 7/31/12 $ 3,.159,00 ..... `total _.�.. x,74,273,00 ..� Authorized Site 110 East 'Main Street Los Gatos, California 95031 Page 1 of 1 2011 -2012 Master Support Agreement Exhibit 2, Covered Applloatlons EXHIBIT 4 To {aster uppcart Agreement THIRD-PARTY SUPPORT CONTRAcTs `Phis Exhibit is attached to, incorporated into and forms part of the Master Support Agreement, dated, , 200__, between the Client and Tiburon .(herein referred to as the "Agreement "), Capitalized terms used herein .shall have the definitions set forth in the Agreement, unless otherwise defined herein, In the event of conflict between the terms and conditions set forth herein and those set ,forth in the Agreement, the terms and conditions set forth in the Agreement shall prevail List of third Laat ggpport c® a o rkvidc�cl Page 1 of 1 Master Support Agreement Exhibit 4, 'Third Party Support Contracts EXHIBIT 3 To Master Support Agreement TRAINING This Exhibit is attached to, Incorporated Into and forms part of the Master Support Agreement, dated �, 200__, between the Client and: Tiburon (herein referred to as the "Agreement "). Capitalized terms used herein shall have the definitions set forth In the Agreement, unless otherwise defined herein. In the event of conflict between the terms and conditions set forth herein and those set forth in the Agreement, the terms and conditions .set forth in the Agreement shall prevail, Ust_of_training that took place to be provided Page 1 of 'I Master Support Agreement . Exhibit 3, Training EXHIBITS TO Master Support Agreement SITE, SYSTEM AND WrwoFIK SPECIMCATIONS This Exhibit is attached to, incorporated into and forms part of the Master Support Agreement., dated ' 1 200, between the Client and Tiburon (herein referred to as the "Agreement"), Capitalized terms used herein shall have the definitions set forth in the Agreement, unless otherwise defined herein, In the event of conflict b9tween the terms and conditions set forth herein and -those set -forth in the Agreement, the terms and conditions set forth In the Agreement shall prevail, Site sy% Le!]La rLCL tLt �q t1go Lcg MP Lit I C 4AtLQrj§�Loke ProyAlf Page 'I of 1 Master Support Agreement Exhlblt 5, Site, System and Network Specifications EXHIBIT 6 To Master Support Agreement SACK UP SCHEDULE AND PROCEDURES This Exhibit Is attached to, incorporated Into and forms part of the Master Support Agreement, dated , 200_, between the Client and Tiburon (herein referred to as the "Agreement"), Capitalized terms used herein shall have the definitions set forth In the Agreement, unless otherwise defined herein, In the event of conflict between the terms and conditions set forth herein and those set forth in the Agreement, the terms and conditions set forth in the Agreement shall prevail, Page 1 of t Master Support Agreement Exhlblt 6, Back Up Schedule and Procedures EXHIBIT 7 To Master Support Agreement WARRANTY & MAINTENANCE SUPPORT — GUIDELINES & OPTIONS This Exhibit Is attached to, Incorporated into and forms part of the Master Support Agreement, dated August '1, 2010, between the Client and Tiburon (herein referred to -as the "Agreement")., Capitalized terms used herein shall have the def1iii-tions set forth in the Agreement, unless otherwise defined herein. In the event of conflict between the terms and conditions set forth heroin and those set forth In the Agreement, the terms and conditions set forth in the Agreement shall prevail. -- The Exhibit followis this cover page -- Page 1 of 'I Master Support Agreement Exhibit 7., Warranty & Maintenance Support—Guidelines & Options EXHIBIT 8 To Master Support Agreement Systems Administration Support Services This- Exhibit is attached to, incorporated Into and forms part of the Master Support Agreement, dated August 1, 2010, between the Client and Tiburon (herein referred to as the "Agreement "). Capitalized terms used herein shall have the definitions set forth In the Agreement, unless otherwise defined herein, In the event of conflict between the terms and conditions 'set forth herein and those set forth in the Agreement, the terms and conditions set forth in the Agreement shall prevail. -- The Exhlblt follows this cover page -- Page t of 1 Master Support Agreement Exhibit 8, System Administration Support Services EXHIBIT 0 To Master Support Agreement DBA SERVICES This Exhibit is attached to, incorporated into and forms part of the Master Support Agreement, dated August 1., 2010, between. the Client and Tiburon .(herein referred to as the "Agreement"). Capitalized :terms used herein shall have the definitions set forth in the Agreement,' unless otherwise -defined herein, In the event of conflict between the terms and conditions set forth herein -and those set forth in the Agreement, the terms and .conditions set forth in the Agreement shall prevail, -- The FExhlbit follows this cover pacje -- Page 1 of 1 Master Support pport Agreement Exhibit 9, DBA Services THIS PAGE INTENTIONALLY LEFT BLANK