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Resolution No. 80563 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 RESOLUTION NO. 8056 A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF VERNON APPROVING AND AUTHORIZING THE EXECUTION OF A SOFTWARE SERVICE AGREEMENT -RENEWAL BY AND BETWEEN THE CITY OF VERNON AND VISIONAIR WHEREAS, on March 30, 1999, the City Council of the City of Vernon approved Resolution No. 7301 approving a Software License Agreement with Vision Software, Inc. for a Computer Aided Dispatch System ("CAD"), Mobile Computer Terminal ("MCT") and Vision Records Management System ("RMS") for the City of Vernon Police Department; and WHEREAS, VisionAir Inc, formerly VisionAir and Vision Software, Inc., ("VisionAir") has submitted a Software Service Agreement and renewal quotation for the period August 25, 2002 through August 24, 2003 for the sum of Forty -Two Thousand Four Hundred Nine Dollars and Eighteen Cents ($42,409.18), including tax, for the CAD, MCT and RMS; and WHEREAS, the City`s Police Department requires annual software support services for the CAD, MCT and RMS Systems; and WHEREAS, VisionAir is the only supplier who can provide the annual software support services necessary to maintain the CAD, MCT and RMS; and WHEREAS, on September 3, 2002, the Finance Committee recommended that the City Council approve the recommendation of Bruce V. Malkenhorst, Director of Finance, dated August 22, 2002, that the Software Service Agreement with VisionAir be renewed for the period August 25, 2002 through August 24, 2003; and WHEREAS, the City Council of the City of Vernon has determined that, pursuant to the provisions of subsection (a) of 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Section 2.27 of the Vernon City Code, it is in the public interest and necessity to proceed with the renewal. of software support services for I1the CAD, MCT and RMS with VisionAir to enhance services provided to the Vernon community. NOW, THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF VERNON AS FOLLOWS: SECTION 1: The City Council of the City of Vernon hereby finds and determines that the recitals contained hereinabove are true and correct. SECTION 2: The City Council of the City of Vernon hereby approves the Software Service Agreement with VisionAir, a copy of which is attached hereto as Exhibit "A" and made a part hereof. SECTION 3: The City Council of the City of Vernon hereby authorizes the Mayor and the City Clerk to execute said Agreement for, and on behalf of, the City of Vernon. SECTION 4: The City Council of the City of Vernon hereby directs the City Clerk, or his designee, to send one fully executed Agreement to: VisionAir Attn. Tim Nichols, Vice President -Operations P.O. Box 9000 Castle Hayne, North Carolina 98429-9000 SECTION 5: The City Clerk of the City of Vernon shall certify to the passage of this resolution, and thereupon and thereafter the same shall be in full force and effect. APPROVED AND ADOPTED this 4th day of September, 2002. ATTEST• BRUCE V. MALKENHORST, City Clerk � %LEONIS C. MALtURG, Mayor r - 2 - 1 STATE OF CALIFORNIA ) 2 ) ss COUNTY OF LOS ANGELES ) 3 4 I, BRUCE V. MALKENHORST, City Clerk of the City of Vernon, do 5 hereby certify that the foregoing Resolution, being Resolution No. 6 8056, was duly adopted by the City Council of the City of Vernon at a 7 regular meeting of the City Council duly held on Wednesday, 8 September 4, 2002, and thereafter was duly signed by the Mayor of the 9 City of Vernon. 10 11,/`� BRUCE V. MALKENHORST, City Clerk 12 13 (SEAL) 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 - 3 - SUPPORTING DOCUMENTS EXHIBIT V�& SOFTWARE SERVICE AGREEMENT City of Vernon 4305 South Santa Fe Avenue Vernon, CA 90058 Effective Date: Beginninq the day on which CUSTOMER first uses a module of the Licensed Software operationally ("Goes Live") This SOFTWARE SERVICE AGREEMENT (hereinafter "Agreement") (incorporated in to the Software License Agreement of , 2002 as Attachment D) is entered into by and between City of Vernon (hereinafter "CUSTOMER") and VISIONAIR INC., a North Carolina based company with offices located at 5601 Barbados Blvd., Post Office Box 9000, Castle Hayne, North Carolina 28429-9000 (hereinafter "VISIONAIR"). VISIONAIR shall perform maintenance services on the Licensed Software and CUSTOMER shall accept and pay for such services, pursuant to the terms and conditions herein provided. Licensed Software shall mean the VISIONAIR software as described in the Quotation (Attachment B to the Software License Agreement), as such may hereafter be supplemented and as such Licensed Software may hereafter be updated with improvements, enhancements and modifications furnished to CUSTOMER by VISIONAIR. 1. Term. This agreement shall become effective on the date shown above (hereinafter "Effective Date"), and, unless sooner terminated as hereinafter provided, shall remain in full force and effect for an initial term of (1) one year from such date (hereinafter "Initial Term"). 2. Automatic Renewal. Upon expiration of the Initial Term, this Agreement shall be automatically extended on a year-to-year basis (herein after "Renewal term") unless sixty (60) days prior to the expiration date of the Initial Term, or any Renewal term, a party hereto gives written notice to the other party of its termination of the Agreement as of such expiration date. 3. Maintenance Service. Upon payment of the fees listed in the Quotation incorporated in to the Software License Agreement as Attachment B (hereinafter "Quotation"), VISIONAIR shall use commercially reasonable efforts to provide Maintenance Service for the term of this Agreement. The term "Maintenance Service" as used herein means Covered Maintenance and Billable Call Maintenance as hereinafter defined. 4. Covered Maintenance. The term "Covered Maintenance" as used herein means the periodic and on -call remedial maintenance VISIONAIR deems reasonably appropriate and necessary to keep the application software functioning properly. Covered Maintenance shall include: (a) Unlimited Telephone Support for the Licensed Software, utilizing an 800 line provided by VISIONAIR. During the Initial Term, this telephone support will be available during the hours specified in the Quote. (b) Initial fact-finding (Tier 1) support for 3`d party software embedded or used in conjunction with the application software. (c) Correction of documented malfunctions ("bugs") in the application software. (d) Assistance in installing updates and new releases of the Licensed Software on the CUSTOMER's servers. (e) Processing CUSTOMER's request for changes to the Software. A VISIONAIR Product Manager will define the CUSTOMER's request and submit it for consideration in future releases of the Software. (0 Support to CUSTOMER while CUSTOMER is backing up its data. Telephone support personnel are available to answer questions related to the Software and to provide remedies for "bugs" or defects within the Software. When necessary, CUSTOMER will provide access to its network in order for to provide remote diagnostic services and to take corrective actions. CUSTOMER will make available a dedicated telephone line and modem for use by VISIONAIR support. If the problem can not be resolved remotely, VISIONAIR will, if deemed necessary, come to CUSTOMER's site to correct the problem and restore the Licensed Software to its normal functioning state. 5. Billable Call Maintenance. The term "Billable Call Maintenance" as used herein means services provided by VISIONAIR that are not covered under Covered Maintenance. The rate for this service shall be $75.00 per hour (the "Billable Call Rate"). Hours expended may not exceed 8 hours without written authorization by CUSTOMER. 6. Exclusions from Covered Maintenance. Covered Maintenance does not include: (a) Repair of damage not caused by VISIONAIR, including without limitation, damage resulting from accident, transportation, neglect or misuse, lightning, failure or fluctuation of electrical power, air conditioning or humidity control, telephone equipment or communication lines failure, failure of foreign interconnect equipment, or causes other than normal operation procedures. (b) Service which is impractical for VISIONAIR to render because of: alterations in the Licensed Software made by persons other than VISIONAIR without receiving VISIONAIR's prior written approval; the connection of equipment and/or Software by mechanical or electrical means to another machine or device; or the physical inaccessibility of the equipment or Software; (c) Any repair of any damage to the Licensed Software caused by software or firmware programming that is not provided or supported by VISIONAIR under section 5. 7. Enhancements & Upgrade Support.Covered Maintenance shall include standard upgrades and enhancements that are made to the Licensed Software. VISIONAIR issues corrections, upgrades and enhancements to the software on an ongoing basis. VISIONAIR will use commercially reasonable efforts to update the Licensed Software as necessary to stay compliant with State and Federal requirements for crime reporting and information access. All modifications to the Licensed Software and related Documentation will be sent to the customer on standard electronic media (CD-ROM) and/or be installed as an executable utilizing the RAS connection. 8. Charges to Customers: (a) Charges for Covered Maintenance: The applicable rates for Covered Maintenance are set forth in the Quotation (Attachment B to the Software License Agreement). (b) Charges for Billable Call Maintenance: The hourly rate is as provided in Section 5. (c) Charges for Travel: Upon prior written authorization, CUSTOMER shall pay for travel time and travel expense in connection with Billable Call Maintenance. Travel time will be charged to the CUSTOMER at the Billable Call Rate. Travel expense will be charged as incurred and includes tolls, parking and other out-of- pocket costs plus mileage at the then current rates. There will be no additional charge to the CUSTOMER for travel expense incurred in connection with Covered Maintenance. (d) Charge for Software License Changes: All Covered Maintenance fees hereunder are subject to increase or decrease upon any change in number of concurrent user licenses or software modules licensed. 9. Changes in Charges. At least 120 days prior to the expiration of the Initial Term or any Renewal term, VISIONAIR may make changes to the Covered Maintenance fees and the Billable Call Rate, such changes to be effective at the commencement of the immediately subsequent Renewal term, if any. CUSTOMER may terminate this Agreement within sixty (60) days after receipt of the first invoice with changed charges by giving VISIONAIR sixty (60) days written notice of its intention to terminate, and this agreement will terminate as of the date for termination set forth in the CUSTOMER's notice to VISIONAIR or at the end of such sixty (60) day period, whichever last occurs. 10. Payment. VISIONAIR will invoice the CUSTOMER in advance for each term, Initial or Renewal, for Covered Maintenance. Such invoices will include pro rata charges or credits for any Covered Maintenance of Licensed Software installed or removed during the previous term or prior to the Effective Date. VISIONAIR will invoice CUSTOMER for Billable Call Maintenance as incurred and CUSTOMER shall pay invoices for Covered Maintenance, including any invoices outstanding on the Effective Date of this Agreement, on or prior to the commencement of each term. 11. Disclaimer of Warranty. VISIONAIR makes no warranty of any kind, express or implied, including without limitation, any warranty of merchantability or fitness for a particular purpose with respect to the subject matter hereof, maintenance to be performed by VISIONAIR pursuant to the terms hereof, or parts to be supplied hereunder. 12. Limitation of Liability. VISIONAIR SHALL NOT BE LIABLE FOR ANY DAMAGES INCURRED, UNLESS SUCH DAMAGES ARE CAUSED BY THE NEGLIGENT OR INTENTIONALLY TORTIOUS ACT OR OMISSION OF VISIONAIR, ITS EMPLOYEES OR REPRESENTATIVES. IN NO CASE, HOWEVER, SHALL VISIONAIR BE HELD LIABLE FOR INDIRECT, SPECIAL, OR CONSEQUENTIAL DAMAGES. 13. Hardware and Network Upgrades. CUSTOMER acknowledges that due to the dynamic nature of the information technology industry and frequent product replacements and/or upgrades developed independently by third party hardware and software vendors, VISIONAIR has no control over the turnover of product or obsolescence of technology of third party products. CUSTOMER also acknowledges that VISIONAIR develops its Network Hardware Specification Document based upon all of the third party product information available to it. Therefore, with respect to third party hardware and software, CUSTOMER shall retain the responsibility for the costs of purchase and installation of hardware and software upgrades necessary to maintain the functionality of the Licensed Software. Additionally, the accumulation of storage of records in CUSTOMER's database over an extended period of heavy use may require expanding the capacity and memory of the operating system in order to maintain performance at response times acceptable to the CUSTOMER. Subject to all of the affirmative duties and obligations of VISIONAIR under this Software Maintenance Agreement, it is the CUSTOMER's sole responsibility to maintain the operating system to ensure adequate response times. 14. Force Maieure. Neither party shall be liable or deemed in default for any failure in performance hereunder resulting from any cause beyond its reasonable control. 15. Termination for Non-payment. If CUSTOMER is in default due to non-payment, and after VISIONAIR has given CUSTOMER written notice and such default is not cured after 15 days then VISIONAIR may terminate this agreement at any time upon written notice to CUSTOMER. 16. Notices. Any Notice, request, instruction or other document pertaining to this Agreement shall be sent to the appropriate parry's address as set forth above, and shall be deemed to have been duly given or served if delivered in person or deposited in the United States mail, certified mail, return receipt requested. 17. General. This Agreement shall be governed by the laws of the State of California This Agreement constitutes the entire agreement between the parties hereto with respect to maintenance of the Licensed Software and shall supersede all previous or contemporaneous negotiations, commitments and writings with respect to matters set forth herein. It may be only modified by writing signed by authorized representatives of both parties. The terms and provisions of this Agreement shall prevail over any conflicting, additional or other terms appearing on any purchase order submitted by the CUSTOMER at any time. VISIONAIR, INC. Signature: Name: iilNl �i A • e��W�ti� Title: p a s ,6 -_ Date: �IZI /O-L/ ATTEST: BRUCE V. MALKENHORST, City Clerk APPROVED AS TO FORM: EDUARDO OLIVO, City Attorney CUSTOMER NAME Signature: Name: Leonis C . Malburg Title: Mayor CITY COUNCIL LEONIS C. MALBURG Mayor THOMAS A. YBARRA Mayor Pro -Tern WM. 'BILL" DAVIS Councilman H. "LARRY" GONZALES Councilman W. MICHAEL MCCORMICK Councilman BRUCE V. MALKENHORST City Administrator/City Clerk FAX (323) 826-1438 VisionAir Attn: Tim Nichols, P.O. Box 9000 CITY HALL 4305 SANTA FE AVENUE, VERNON, CALIFORNIA 90058 TELEPHONE (323) 583-8811 October 2, 2002 Vice President -Operations Castle Hayne, North Carolina 98429-900 Re: Software Service Agreement Dear Mr. Nichols: EDUARDO OLIVO City Attorney FAX: (562) 869-1883 KEVIN WILSON Director of Community Services & Water FAX: (323) 826-1435 KENNETH J. DeDARIO Director of Utilities FAX: (323) 826-1425 STEVEN E. PARKER Fire Chief FAX: (323) 826-1407 BRUCE W. OLSON Police Chief FAX: (323) 826-1481 Transmitted herewith is a duplicate original copy of the above referenced agreement approved by the Vernon City Council on September 4, 2002. If you have any questions regarding this matter, please call Ms. Dolores Fonseca at (323) 583-8811 ext. 324. ry truly yours, Nel Gir Assistant to t e Chief Deputy City Clerk NG/gm CC: Police Department Dolores Fonseca Resolution No. 8056 Agreement No. 02-068 CITY COUNCIL LEONIS C. MALBURG Mayor THOMAS A. YBARRA Mayor Pro-Tem WM. 'BILL" DAVIS Councilman H. "LARRY" GONZALES Councilman W. MICHAEL MCCORMICK Councilman BRUCE V MALKENHORST City Administrator/ City Clerk FAX (323) 826-1438 Finance Committee City of Vernon Honorable Members: ra CITY HALL 4305 SANTA FE AVENUE, VERNON, CALIFORNIA 90058 TELEPHONE (323) 583-8811 Aiiriiiczt- 77 _ 7nn2 EDUARDO OLIVO City Attorney FAX: (562) 869-1883 KEVIN WILSON Director of Community Services & Water FAX: (323) 826-1435 KENNETH J. DeDARIO Director of Municipal Utilities FAX: (323) 826-1425 STEVEN E. PARKER Fire Chief FAX: (323) 826-1407 BRUCE W. OLSON Police Chief FAX: (323) 826-1481 " The Police Department is requesting that the existing Software Maintenance Agreement with Vision Air for the Records Management System (RMS), the Mobile Computer Terminals (MCT), and the Computer Aided Dispatch System (CAD) be renewed for the period of August 25, 2002 through August 24, 2003. Funds were budgeted for this expense. This has been reviewed by the Purchasing Assistant and it is hereby recommended that authorization be granted to renew the agreement with Vision Air at an approximate cost of $42,409.19. Very truly yours, Bruce V. Malkenhorst Director of Finance BVM/gm Memo To: Bruce V. Malkenhorst, City Administrator From: Dolores Fonseca, Purchasing Assistant / Date: 8/22/2002 Re: REQUISITION RC#878 Attached for your approval is requisition RC#878. The Police Department is requesting Software Maintenance Renewal provided by VisionAir for the Records Management System (RMS), the Mobile Computer Terminals (MCT), and the Computer Aided Dispatch System (CAD). The period is for August 24, 2002 through August 23, 2003. The new annual fee is $42,409.18 (sales tax included). The department has appropriated sufficient funds for this annual expenditure. Attached is last year's Software Service Agreement -Renewal which has an automatic -renewal condition. Police Department was notified in January of the price increase. �- , 4r()_ • Page 1 CitV of Vernon 4305 Santa Fe Ave. Vernon, CA 90058 (323) 583 - 8811 FAX: (323) 826 -1433 F REQUISITION REQUISITION # PAGE RC-000000878 1 OF 1 DATE ORDERED DATE REQUIRED 07/15/2002 08/24/2002 RECEIVING HOURS: 7:00 A.M. TO 4:30 PM 4 2, 4 0 9. 18 MONDAY-THURSDAY eL $ WAREHOUSE CLOSED ON FRIDAYS SOFTWARE SERVICE AGREEMENT City of Vernon 4305 South Santa Fe Avenue Vernon. CA 90058 Effective Date: Beginning the day on which CUSTOMER first uses a module of the Licensed Software operationally ("Goes Live") This SOFTWARE SERVICE AGREEMENT (hereinafter "Agreement") (incorporated in to the Software License Agreement of 1- 2002 as Attachment D) is entered into by and between City of Vemon (hereinafter "CUSTOMER") and VISIONAIR INC., a North Carolina based company with offices located at 5601 Barbados Blvd., Post Office Box 9000, Castle Hayne, North Carolina 28429-9000 (hereinafter "VISIONAIR'). VISIONAIR shall perform maintenance services on the Licensed Software and CUSTOMER shall accept and pay for such services, pursuant to the terms and conditions herein provided. Licensed Software shall mean the VISIONAIR software as described in the Quotation (Attachment B to the Software License Agreement), as such may hereafter be supplemented and as such Licensed Software may hereafter be updated with improvements, enhancements and modifications furnished to CUSTOMER by VISIONAIR. 1. Term. This agreement shall become effective on the date shown above (hereinafter "Effective Date"), and, unless sooner terminated as hereinafter provided, shall remain in full force and effect for an initial term of (1) one year from such date (hereinafter "Initial Term"). 2. Automatic Renewal. Upon expiration of the Initial Term, this Agreement shall be automatically extended on a year-to-year basis (herein after "Renewal term") unless sixty (60) days prior to the expiration date of the Initial Term, or any Renewal term, a party hereto gives written notice to the other party of its termination of the Agreement as of such expiration date. 3. Maintenance Service. Upon payment of the fees listed in the Quotation incorporated in to the Software License Agreement as Attachment B (hereinafter "Quotation"), VISIONAIR shall use commercially reasonable efforts to provide Maintenance Service for the term of this Agreement. The term "Maintenance Service" as used herein means Covered Maintenance and Billable Call Maintenance as hereinafter defined. 4. Covered Maintenance. The term "Covered Maintenance" as used herein means the periodic and on -call remedial maintenance VISIONAIR deems reasonably appropriate and necessary to keep the application software functioning properly. Covered Maintenance shall include: (a) Unlimited Telephone Support for the Licensed Software, utilizing an 800 line provided by VISIONAIR. During the Initial Term, this telephone support will be available during the hours specified in the Quote. (b) Initial fact-finding (Tier 1) support for Td party, software embedded or used in conjunction with the application software. (c) Correction of documented malfunctions ("bugs") in the application software. (d) Assistance in installing updates and new releases of the Licensed Software on the CUSTOMER's servers. (e) Processing CUSTOMER's request for changes to the Software. A VISIONAIR Product Manager will define the CUSTOMER's request and submit it for consideration in future releases of the Software. (f) Support to CUSTOMER while CUSTOMER is backing up its data. Telephone support personnel are available to answer questions related to the Software and to provide remedies for "bugs" or defects within the Software. When necessary, CUSTOMER will provide access to its network in order for to provide remote diagnostic services and to take corrective actions. CUSTOMER will make available a dedicated telephone line and modem for use by VISIONAIR support. If the problem can not be resolved remotely, VISIONAIR will, if deemed necessary, come to CUSTOMER's site to correct the problem and restore the Licensed Software to its normal functioning state. 5. Billable Call Maintenance. The term "Billable Call Maintenance" as used herein means services provided by VISIONAIR that are not covered under Covered Maintenance. The rate for this service shall be $75.00 per hour (the "Billable Call Rate"). Hours expended may not exceed 8 hours without written authorization by CUSTOMER. 6. Exclusions from Covered Maintenance. Covered Maintenance does not include: (a) Repair of damage not caused by VISIONAIR, including without limitation, damage resulting from accident, transportation, neglect or misuse, lightning, failure or fluctuation of electrical power, air conditioning or humidity control, telephone equipment or communication lines failure, failure of foreign interconnect equipment, or causes other than normal operation procedures. (b) Service which is impractical for VISIONAIR to render because of: alterations in the Licensed Software made by persons other than VISIONAIR without receiving VISIONAIR's prior written approval; the connection of equipment and/or Software by mechanical or electrical means to another machine or device; or the physical inaccessibility of the equipment or Software; (c) Any repair of any damage to the Licensed Software caused by software or firmware programming that is not provided or supported by VISIONAIR under section 5. 7. Enhancements & Upgrade Supaort.Covered Maintenance shall include standard upgrades and enhancements that are made to the Licensed Software. VISIONAIR issues corrections, upgrades and enhancements to the software on an ongoing basis. VISIONAIR will use commercially reasonable efforts to update the Licensed Software as necessary to stay compliant with State and Federal requirements for crime reporting and information access. All modifications to the Licensed Software and related Documentation will be sent to the customer on standard electronic media (CD-ROM) and/or be installed as an executable utilizing the RAS connection. 8. Charges to Customers: (a) Charges for Covered Maintenance: The applicable rates for Covered Maintenance are set forth in the Quotation (Attachment B to the Software License Agreement). (b) Charges for Billable Call Maintenance: The hourly rate is as provided in Section 5. (c) Charges for Travel: Upon prior written authorization, CUSTOMER shall pay for travel time and travel expense in connection with Billable Call Maintenance. Travel time will be charged to the CUSTOMER at the Billable Call Rate. Travel expense will be charged as incurred and includes tolls, parking and other out-of- pocket costs plus mileage at the then current rates. There will be no additional charge to the CUSTOMER for travel expense incurred in connection with Covered Maintenance. (d) Charge for Software License Changes: All Covered Maintenance fees hereunder are subject to increase or decrease upon any change in number of concurrent user licenses or software modules licensed. 9. Changes in Charges. At least 120 days prior to the expiration of the Initial Term or any Renewal term, VISIONAIR may make changes to the Covered Maintenance fees and the Billable Call Rate, such changes to be effective at the commencement of the immediately subsequent Renewal term, if any. CUSTOMER may terminate this Agreement within sixty (60) days after receipt of the first invoice with changed charges by giving VISIONAIR sixty (60) days written notice of its intention to terminate, and this agreement will terminate as of the date for termination set forth in the CUSTOMER's notice to VISIONAIR or at the end of such sixty (60) day period, whichever last occurs. 10. Payment. VISIONAIR will invoice the CUSTOMER in advance for each term, Initial or Renewal, for Covered Maintenance. Such invoices will include pro rata charges or credits for any Covered Maintenance of Licensed Software installed or removed during the previous term or prior to the Effective Date. VISIONAIR will invoice CUSTOMER for Billable Call Maintenance as incurred and CUSTOMER shall pay invoices for Covered Maintenance, including any invoices outstanding on the Effective Date of this Agreement, on or prior to the commencement of each term. 11. Disclaimer of Warranty: VISIONAIR makes no warranty of any kind, express or implied, including without limitation, any warranty of merchantability or fitness for a particular purpose with respect to the subject matter hereof, maintenance to be performed by VISIONAIR pursuant to the terms hereof, or parts to be supplied hereunder. I 12. Limitation of Liability. VISIONAIR SHALL NOT BE LIABLE FOR ANY DAMAGES INCURRED, UNLESS SUCH DAMAGES ARE CAUSED BY THE NEGLIGENT OR INTENTIONALLY TORTIOUS ACT OR OMISSION OF VISIONAIR, ITS EMPLOYEES OR REPRESENTATIVES. IN NO CASE, HOWEVER, SHALL VISIONAIR BE HELD LIABLE FOR INDIRECT, SPECIAL, OR CONSEQUENTIAL DAMAGES. 13. Hardware and Network Upgrades. CUSTOMER acknowledges that due to the dynamic nature of the information technology industry and frequent product replacements and/or upgrades developed independently by third party hardware and software vendors, VISIONAIR has no control over the turnover of product or obsolescence of technology of third party products. CUSTOMER also acknowledges that VISIONAIR develops its Network Hardware Specification Document based upon all of the third party product information available to it. Therefore, with respect to third party hardware and software, CUSTOMER shall retain the responsibility for the costs of purchase and installation of hardware and software upgrades necessary to maintain the functionality of the Licensed Software. Additionally, the accumulation of storage of records in CUSTOMER's database over an extended period of heavy use may require expanding the capacity and memory of the operating system in order to maintain performance at response times acceptable to the CUSTOMER. Subject to all of the affirmative duties and obligations of VISIONAIR under this Software Maintenance Agreement, it is the CUSTOMER's sole responsibility to maintain the operating system to ensure adequate response times. 14. Force Majeure. Neither party shall be liable or deemed in default for any failure in performance hereunder resulting from any cause beyond its reasonable control. 15. Termination for Non-payment. If CUSTOMER is in default due to non-payment, and after VISIONAIR has given CUSTOMER written notice and such default is not cured after 15 days then VISIONAIR may terminate this agreement at any time upon written notice to CUSTOMER. 16. Notices. Any Notice, request, instruction or other document pertaining to this Agreement shall be sent to the appropriate party's address as set forth above, and shall be deemed to have been duly given or served if delivered in person or deposited in the United States mail, certified mail, return receipt requested. 17. General. This Agreement shall be governed by the laws of the State of California This Agreement constitutes the entire agreement between the parties hereto with respect to maintenance of the Licensed Software and shall supersede all previous or contemporaneous negotiations, commitments and writings with respect to matters set forth herein. It may be only modified by writing signed by authorized representatives of both parties. The terms and provisions of this Agreement shall prevail over any conflicting, additional or other terms appearing on any purchase order submitted by the CUSTOMER at any time. VISIONAIR, INC. Signature: Name: hw, 91, A Title: Paes , O Date:�2� p1� ATTEST: BRUCE V. MALKENHORST, City Clerk VED AS TO FORM: EDUARDO OLIVO, City ttorney CUSTOMER NAME Signature:�2 Name: Leonis C. Malburg Title: Mayor Date: 0 lo 2,