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HomeMy WebLinkAbout2005 CON Govpartner Berryman & Henigar - Addendum Software Hosting AgreementProfessional Services Agreement This Professional Services Agreement (the "Professional Services Agreement") by and between Berryman & Henigar, Inc., a Califomia corporation having its principal place of business at 11590 W. Bernardo Court, San Diego, California 92127 ("CONSULTANT') and National City ("CUSTOMER") with an address of 1243 National City Blvd. National City, CA 91950 is an addendum to the RequestPartner Hosting Agreement between GovPartner and CUSTOMER dated November of 2003 (the "Hosting Agreement") and is effective the G day of UK 2005. 1. Services A. The professional consulting services and deliverables to be performed or delivered by CONSULTANT under this Professional Services Agreement may include, but are not limited to: consulting, network engineering, systems integration, hardware installation, special studies, installation evaluations, custom modification, tools/utilities components, programming and documentation, data conversion, application design and development, systems analysis and design, conversions, implementing planning and implementation of the Software pursuant to CUSTOMER's Work Order (collectively referred to as the "Services"). On -site support is available to resolve severe problems rendering software application substantially inoperable and to perform upgrades. B. During the term of this Professional Services Agreement, the CUSTOMER may submit orders to CONSULTANT. Upon acceptance by CONSULTANT, each order shall become part of and be subject to the terms and conditions of this Professional Services Agreement. CONSULTANT shall not withhold acceptance unreasonably. C. For each order issued and accepted by CONSULTANT, the parties shall mutually agree to and attach a work order ("WO") with written estimate of the tasks, deliverables, acceptance of deliverables, schedule for performance and cost for providing the requested Services. It is understood that the WO may be amended by mutual written agreement. If there is any conflict of terms between this Professional Services Agreement and the WO, then the Professional Services Agreement shall control. D. Hours of Service: Services will be provided during the hours of 8:00 a.m. to 5:00 p.m. Monday through Friday excluding holidays or such holidays as observed locally by CONSULTANT. CUSTOMER may request in writing extended hours beyond the normal hours of service at the prevailing surcharge rates. E. CUSTOMER shall furnish CONSULTANT, at CUSTOMER's expense, all technical data and information as may be determined by CONSULTANT to be necessary to furnish the Services in the WO. CUSTOMER shall grant CONSULTANT access to the System at such times and so configured as may be required for the adequate delivery of the Services. F. CONSULTANT tools/utilities components and custom modifications (hereinafter "Components") developed by CONSULTANT to enhance the functionality of CONSULTANT Software for the applicable CUSTOMER solution may be described and the associated fees therefor may be set forth in the applicable WO. The rights to use these Components are granted in accordance with Section 7 hereunder. In addition, continuing support for the specified Components may be ordered under CONSULTANT's Software Maintenance and Support Agreement. G. CONSULTANT shall use reasonable efforts to perform the Services to be provided hereunder, but CONSULTANT will not be responsible for any delays resulting from circumstances beyond its control. 2. Term This Professional Services Agreement shall commence effective on the date of acceptance by CONSULTANT and shall remain in force until terminated with thirty (30) days prior written notice from either party. Completion of any ordered Services or the absence of orders for additional Services shall not terminate this Professional Services Agreement, it being the intent of the parties to keep this Professional Services Agreement in effect in the event of future orders for Services unless otherwise notified by either party in writing. 1 Form No. 0002.001 GPResellerProfSery12-28-2004.doc 3. Charges & Fees A. The CUSTOMER agrees to pay for all Services delivered by CONSULTANT. Additionally, the CUSTOMER agrees to reimburse CONSULTANT for any special or unusual expenses incurred at the CUSTOMER's specific request. B. CUSTOMER agrees to pay the following fees: 1. $10,000 one-time implementation fee for onsite implementation services and training (per Work Order 1). C. Unless a prepaid order is received, CUSTOMER will be invoiced monthly for Services rendered in the previous month or in accordance with the milestone payment schedule in the WO attached to each order. All invoices are due and payable within 30 days. Invoices not paid when due will have a 1.5 percent per month interest charge or the highest lawful rate, whichever is less, assessed against the unpaid balance from the date of the invoice until the date of payment. CUSTOMER shall pay all costs involved in collecting its overdue accounts including reasonable attorneys' fees. D. All charges and rates are exclusive of all sales, use and like taxes. Such taxes are the responsibility of the CUSTOMER and will be billed to the CUSTOMER as a separate line item on each invoice. 4. Change Orders A. In the event that either party desires to change the scope of the Services for any reason which is not within the scope of the WO, such party (referred to for convenience as the "requesting party") shall submit to the other party (referred to for convenience as the "receiving party") a request for a change to the scope of the Services (a "Change Order"). Each Change Order shall set forth in reasonable detail the nature of the change in the Services being requested, the recommended increase or decrease in personnel or other resources, if any, and any impact of the Change Order will have on the WO schedule, once the Change Order is implemented. The receiving party will use commercially reasonable efforts to review and respond to the Change Order within ten (10) business days after receipt of the Change Order. The receiving party may approve, propose modifications to or disapprove of the requested Change Order. Nether party shall unreasonably disapprove a Change Order presented by the other. If the receiving party disapproves of the requested Change Order, the receiving party shall provide to the requesting party in writing, within the ten (10) day response period, the reasons for denying the requested Change Order. In the event the parties fail to agree on a specific Change Order, CONSULTANT shall continue to provide the Services at the service level provided that the WO is met. CONSULTANT shall have the right to allocate its resources to the extent necessary to achieve such mutually agreed to service levels. B. A stop work notice or a request for suspension of performance by the CUSTOMER shall be considered a change order under this Section. Any resumption of the Services shall require a mutual review and written acceptance of the applicable WO and any changes or amendments thereto. 5. Change Control and Supervision A. All changes must be documented in writing and signed by the requesting party. The assigned Professional Services Project Manager will analyze these requests and generate an initial assessment as to the impact on the WO's cost and/or schedule within five business days. (i) Changes that do not affect the cost and/or schedule of the Services/Deliverables will be handled within the WO. The Project Manager may take three actions: authorize the proposed change, deny the proposed change; or request additional information. (ii) Changes that affect cost and/or schedule of the Services/Deliverables will be reported to the CUSTOMER, with the applicable pricing and schedule impact of the requested change to the WO. B. While present on the CUSTOMER's premises and performing Services under this Professional Services Agreement, CONSULTANT and its employees and contrators shall conform to CUSTOMER's published policies and procedures and shall abide by CUSTOMER's directions which are consistent with the WO. 2 Form No. 0002.001 G P Res el I e rP rofS a ry 12-28-2004. d oc C. It is the express intention of the parties that CONSULTANT and/or its employees or contractors is an independent contractor and not an employee, agent or partner of CUSTOMER. Nothing in this Professional Services Agreement shall be interpreted as creating the relationship of employer and employee between the CONSULTANT employees or contractors and CUSTOMER. D. Should a CONSULTANT employee or contractor be unable to perform the scheduled Services under this Professional Services Agreement because the illness, resignation or other causes beyond CONSULTANT's control, CONSULTANT will attempt to replace such employee or contractor within a reasonable time. 6. Proprietary Information A. In order to perform the Services under this Agreement, CUSTOMER may, from time to time, disclose to CONSULTANT certain information respecting CUSTOMER's technical, financial, statistical and personnel data, (hereinafter "Information"). Any such Information which is submitted in writing to CONSULTANT by the CUSTOMER and which is clearly and conspicuously marked as confidential shall be protected by CONSULTANT against unauthorized disclosure by using the same degree of care of discretion that CONSULTANT uses with similar Information which CONSULTANT does not want disclosed to third parties. However, CONSULTANT shall not be required to protect Information which (i) is or becomes publicly available, (ii) is already in CONSULTANT's or its related companies' possession, (iii) is independently developed by CONSULTANT or its related companies outside the scope of this Professional Services Agreement, or (iv) is rightfully obtained from third parties. CONSULTANT's obligations under this Paragraph 6.A shall cease immediately upon return to CUSTOMER of such Information. B. CONSULTANT shall not be required to protect any ideas, concepts, know-how, or techniques relating to data, electronic document processing and image processing developed or resulting from the Information or the Services provided under this Professional Services Agreement. 7. Rights in Software, Deliverables Components Title to and ownership of all written material, 3 including without limitation all software, including the Software, results and proceeds of the Services, the Components and any and all deliverables created for CUSTOMER under this Professional Services Agreement, including but not limited to software, magnetic and optical disks, tapes, listings and other software documentation (collectively referred to as "Deliverables") first developed or created by CONSULTANT under this Professional Services Agreement and all proprietary rights therein shall at all times remain with CONSULTANT; however, CONSULTANT, subject to the payment by CUSTOMER of all charges related to the Services, grants to CUSTOMER a personal, non- exclusive, non -transferable, limited license to use Deliverables furnished to CUSTOMER by CONSULTANT under this Professional Services Agreement. All other Software and related Documentation furnished hereunder shall be subject to the Master Agreement and the Software License Agreement. Except and to the extent expressly provided in this section, no license or other right is hereby transferred or granted to CUSTOMER, including any license by implication, estoppel or otherwise, under any patent, trade secret, trademark or copyright. 8. Employees A. The parties recognize that CONSULTANT's employees or contractors provided under this Professional Services Agreement may perform similar services to the Services from time to time for third parties. Accordingly, this Professional Services Agreement shall not prevent CONSULTANT from performing such similar services or restrict CONSULTANT's use of the same employees or contractors provided under this Professional Services Agreement. B. CUSTOMER and CONSULTANT acknowledge and agree that CONSULTANT's employees provided under this Professional Services Agreement are highly important to the success of CONSULTANT in fulfilling the intent of this Professional Services Agreement. Accordingly, CUSTOMER agrees that they will not, either directly or indirectly, solicit, divert or hire, or attempt to solicit, divert or hire any CONSULTANT employees engaged in providing the Services under this Professional Services Agreement at any time during the term of this Professional Services Agreement and for a period of twelve (12) months after completion of the Services. Form No.0002.001 GP Resell erP rofSery12-28-2004. doc 9. Termination CONSULTANT shall have the right to terminate this Professional Services Agreement upon the occurrence of any of the following events (a) CUSTOMER fails to perform or observe any of its obligations to CONSULTANT under this Professional Services Agreement, including, without limitation, the timely payment of any sums due CONSULTANT, (b) CUSTOMER admits in writing its inability to pay its debts generally as they become due, or executes an assignment or similar document for the benefit of creditors, (c) subject to applicable law, the appointment of a receiver, trustee in bankruptcy or similar officer for the equity or assets of CUSTOMER, (d) there is an assignment of this Professional Services Agreement without the prior written consent of CONSULTANT; and (e) such event(s) is not remedied or cured to the reasonable satisfaction of CONSULTANT within thirty (30) days after CONSULTANT has sent written notice to CUSTOMER. Termination shall not be CONSULTANT's exclusive remedy and no such termination shall adversely affect any claim, Berryman & Henigar By: Title: Date: right or action which CONSULTANT may have for damages or otherwise against CUSTOMER regarding any failure of CUSTOMER to perform or observe its obligations to CONSULTANT. 10. Proprietary Rights Certain information and materials delivered under the WO by CONSULTANT hereunder such as, without limitation, the Deliverables, are confidential and proprietary trade secrets of CONSULTANT or GOVPARTNER and are furnished solely to assist CUSTOMER under the WO. All such Confidential Information shall be so marked and CUSTOMER shall treat such information confidential and abide by the terms of such markings, and not reproduce or copy such information except as is reasonable and necessary under the WO. Nothing herein shall restrict CUSTOMER from complying with its obligations under any law requiring disclosure, but CUSTOMER shall give CONSULTANT five days prior notice before any release of Confidential Information. National City By: Title: Date: ( ign cr�t� Met- 1tt .5 4 Form No. 0002.001 GP Resell a rProfSery12-28-2004. doc Work Order No. 1 RequestPartner Implementation Specifications RequestPartner license and implementation package includes up to four days onsite to complete the following meetings / training throughout the implementation period (unlimited Web based training / support is provided): Consulting and Development Efforts Prior to Travel: 1. Information Gathering — Complete Sponsor Questionnaire / Request Form List 2. Development of National City's RequestPartner Site 3. Kickoff Meeting / Training a) Department Managers and Key Department Staff — System Overview b) Department Project Coordinators — System Overview, User Profile and Form Description c) Department Project Coordinators — One -on -One Training on Creation of Request Forms and User Profiles 4. Project Coordinators to Finalize Request Forms 5. All Users Training / FAQ Training 6. Users Testing 7. Go Live Internally Using Real Request Data 8. GovPartner providing ongoing client / user support, technical support and 24 / 7 maintenance of the system, including routine enhancements 9. Go Live on Website at any time National City sees fit Please note that should National City require or request additional site visits, these will be billed as additional time/material at the discretion of your e-Government Client Manager. Features of RequestPartner Implementation: • Hosting of database on a secure server. • Creation of one customized report, based on data within the existing system, in addition to the existing system reports. • 80+ template Request Forms already existing in the system. Creation of two customized Request Forms — teach your users to create unlimited number of forms. The template forms can be easily customized by National City as needed or deleted. New custom forms can be created at any time. • Free consultant phone support on all items including user training for the first 6 months. Form No. 0002.001 • Technical phone support on maintenance and systems upkeep for the life of the hosted contract. • Training and support after system upgrades to explain any new features introduced by a new system version. • 1 copy of the system users manual. 1 copy of the system administrator's manual. • Changing system colors and adding logo to create a seamless appearance with National City's website. 7 Form No. 0002.001 GP Resel lerProfS ery12-28-2004, doc