HomeMy WebLinkAboutAgenda Report - October 16, 2002 E-23CITY OF LODI COUNCIL COMMUNICATION
AGENDA TITLE: Authorize the City Manager to sign the Service/Maintenance Agreement for current
police computerized information systems with Data 911 and authorize payment
using funds previously approved in the 2002-2003 police budget ($44,502.40) (PD)
DATE: October 16, 2002
PREPARED BY: JERRY J. ADAMS, CHIEF OF POLICE
RECOMMENDED ACTION: That the City Council authorize the City Manager to sign the
ServicelMaintenance Agreement for current police information
systems with Data 911 and authorize payment of this agreement
allowing current application version upgrades/updates.
BACKGROUND INFORMATION: Over the past three years the Lodi Police Department has purchased
new computer systems from Data 911 consisting of Computer Aided
Dispatch, Records Management System, Report Writing, and Mobile
Data Computers. With the systems now in place, a maintenance
agreement is needed to provide for receiving software
upgrades/updates no longer covered under warranty. This
maintenance agreement will expire on June 30, 2003. This is an
annual agreement and will be included in future police department
budgets.
City Attorney Randall Hays has approved the Data 911 Service/Maintenance Agreement as written and the
document has also been reviewed by Steve Mann, Information Systems Manager.
FUNDING: $44,502.40 from 2002-2003 Police Operating Budget, Line Item #335.
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Jerry . Ad s
Chi f of Po ice
cc: City Attorney
APPROVED:
H. Dw n Flynn -- City Manager,
LODI POLICE DEPARTMENT
Memorandum
To: Chief Jerry Adams
From: Lieutenant Bryan Noblett
Date: October 1, 2002
Subject: DATA 911 ESA Recommendation
I have met with Corporal Amin and Mike Roil, the Director of Software Development for
DATA 911 and I have determined that DATA 911 has met our agency requirements with
respect to initial implementation of hardware and software systems as promised. It is
therefore my recommendation that we move into the ESA (Software Enhancements and
Services Agreement) phase of the project by paying the amount invoiced by DATA 911.
The ESA amount for fiscal 2002-2003 is $44,502.40 and this total is explained in a letter
from Mr. Roil which is attached to this memorandum. The requested funds were
previously approved in the 2002-2003 police budget.
Please do not hesitate to contact me if you have any questions or require any clarification
on any of this material.
Bryan A. Noblett
Lieutenant
September 27, 2002
Lt. Brian Noblett
Lodi Police Department
230 West Elm Street
Lodi, CA 95240
Dear Lieutenant Noblett,
Datagil.
Data911 is pleased to present to you the final versions of the Data911/Lodi Police
Department 2002-2003 Software Enhancements and Services Agreement (ESA) and
Mobile Data System (MDS) Extended Warranty Agreement.
The software ESA reflects a total ainount of $64,502.40 for services rendered 2002-2003.
This ainount, however, will be reduced by the amount of $20,000 as a result of a
discounting agreement presented to Lodi PD by Data911 during the 6/4/02 meeting at
your agency. As a result,. the final amount Data911 will invoice Lodi PD will be
$44,502.40 which also includes $2,250.00 and $3,780 for the recent successful delivery
of RMS/RPW Server and Client (please refer to enclosed email 9/25/02 from Corporal
Bobby Amin).
The MDS extended warranty agreement reflects 7/01/02-6/30/03 support for 22 MDS
units with a total cost of $5,280. For the following year, the total cost will increase by
$480 to support the addition of two MDS units that are currently under the manufacturers
warranty.
We've had a very good relationship with the Lodi Police Department to date and with
these signed agreements, we at Data911 arc; ✓c y excited to continue that relationship and
look f6iivard to providing you with top notch Data9l 1 support services.
ThWyo.
Director of Soffivare Development
Data91 ]
DATA911 SYSTEMS 2021 CHALLENGER DRIVE, ALAMEDA, CA 94501 PHONE 510-865-9100 FAX 510-865-9090
SOFTWARE ENHANCEMENT AND SERVICES AGREEMENT
This Agreement is made as of (Agreement Date) at Alameda, California, by and between Hubb
Systems, LLC DBA Data911 and the City of Lodi (Client).
1. SOFTWARE. Subject to the terms and conditions set forth in this Agreement, Data911 shall provide services
hereinafter described with respect to Client's application software identified in Exhibit "A".
2. PAYMENT. Client shall pay Data911 for services rendered as specified in Exhibit "A". Payment shall be made
directly to Data911 as specified in Exhibit "A". Data9l I shall submit all billings for said services to Client in the
manner specified in Exhibit "A".
3. EQUIPMENT. Data911 shall, at its sole cost and expense, provide tools and equipment which may be required
for furnishing services pursuant to this Agreement.
4. SERVICE. Data911 offers this software enhancement and services agreement and promises to provide the
services detailed in Exhibit "B".
5. TERM. Upon signature of this Agreement and payment as required in Exhibit "A" of this Agreement, the
Agreement will be in full force and effect through the Agreement expiration date as described in Exhibit "A".
6. EXHIBITS. All exhibits referred to herein are attached hereto and are by reference incorporated herein as
though set forth in full. Exhibit "A" includes a complete list of the software modules, fees for services, charges,
commencement date, term of service, billing procedures and payment methods, which shall be covered under this
agreement. Exhibit "B" Statement of Work details the services to be performed, non -chargeable services and
chargeable services. Exhibit "C" refers to General Terms and Conditions of this Agreement.
EXECUTED as of this day first above -stated.
H. Dixon Flynn
City Manager
Attest:
Susan J. Blackston
City Clerk
Approved as to Form:
e�
Ran ll A. Hays
City Attorney
911 Represe d6tive
Confidential and Proprietary
Enhancement and Services Agreement
EXHIBIT A
I. SOFTWARE MODULES — SCHEDULE OF FIXED ANNUAL RETAINER FEES -
Data911 Software
Number
of
Item Description Licenses Annual Fee
1
Cad Server
1
3,600.00
2
Cad Client (Is)
1
9,000.00
3
Cad Client
2
9,000.00
4
Ecomm Server
1
3,600.00
5
Ecomm Client
3
810.00
6
Rms/Rpw Server
1
2,250.00
7
Rms/Rpw Client
7
3,780.00
8
Msg Server
1
5,400.00
9
Mx Client
23
2,142.25
10
Rx Server
1
5,400.00
11
Rx Client
23
7,129.27
12
Interface DOJ
1
2,700.00
13
Interface 911
1
2,700.00
Total Annual Fee 57,511.52
The Retainer/support fees are due annually at the beginning of Client's Fiscal
Year, based upon the above Schedule of Fees.
II. THIRD PARTY SOFTWARE — SCHEDULE OF FEES
Number
of
Item Description Licenses Annual Fee
1
Oracle Server
1
5,700.00
2
Oracle Lite 8i
23
1,748.00
3
VMS O/S
1
860.00
4
Hummingbird NFS
1
150.00
i otai Annual r ee
III. FEES FOR SERVICE
8,4S>i.UU
1. Fixed Annual Retainer Fee. Client shall pay Data911 the annual retainer fee, in the amount
shown on Exhibit A, which will be billed and payable within 30 days following approval of
Client's annual budget.
2. Fees based on time. All services requested by Client, which are not provided under the terms
of this agreement shall be billed at Data911's then current rate. All amounts so billed shall
be payable within 30 days after the invoice date.
Confidential and Proprietary
Enhancement and Services Agreement
This agreement shall cover only application software modules described in Exhibit A hereto
attached which were designed and/or installed by Data911 and which have not and will not
be altered or enhanced by any entity (including Client) without the express prior written
consent of Data911, such consent not to be unreasonably withheld. In the event of Client's
use of additional application software designed and installed by Data911 or if additional
hardware is connected or in any way interfaced to Client's computer system as described in
Exhibit "A", Data911 shall have the right to increase its fixed retainer fee and such increase
shall be retroactive to the date of such respective first use or connection. Client shall give
Data911 prompt written notice of any such connection.
4. In addition to the amounts payable by Client above, Client shall pay to Data911 all taxes and
levies imposed on or with respect to this Agreement, the services performed or the fees paid
hereunder (except for taxes based on net income).
5. Support fees for third party products billed on to the Client and payable as per the third party
suppliers arrangements. These amounts and arrangements are shown on Exhibit A.
IV. PRICE CHANGES
Total price subject to change upon 1st anniversary date of this Agreement, upon the addition or
deletion of software and hardware, or thereafter the anniversary date, upon 90 days written advance
notice.
V. COMMENCEMENT DATE
Commencement date shall be I" July 2002.
Inclusion of a newly installed module shall be invoiced to Client the first month following the
module acceptance by Client. In subsequent "contract" years the additions will be included in the
Schedule of Fees. Invoicing for a newly installed module and for contracts commencing other than
the Client's fiscal year shall reflect the formula of monthly equivalent fee for the module multiplied
by the remaining number of months in the "contract" year.
VI. TERM
1. The term of this Agreement shall be for twelve months (a "contract" year) commencing on
the date specified on Exhibit A hereto and shall continue from year to year thereafter, but
shall be terminable by either party at the end of any contract year upon written notice given
thirty days prior to the end of any contract year.
2. This Agreement may by terminated by either party upon ten days notice to the other in the
event of any material default hereunder by the other party.
3. This Agreement may be terminated by Data911 if the application software is altered or
enhanced by any entity (including Client) other than Data911, anything to the contrary herein
notwithstanding.
Confidential and Proprietary
Enhancement and Services Agreement
4. No termination hereunder shall release Client from its obligation to make payment for
services rendered through the date of termination.
VI. Billing Procedures and Payment Method
1. Client shall pay Data911 for services rendered based on the costs and terms as specified.
Payment shall be made directly to Data911 for services rendered pursuant to this Agreement.
Data911 shall submit an invoice for said services to Client at the address listed below:
Lt. Brian Noblett
Lodi Police Department
230 West Elm Street
Lodi, CA 95240
Confidential and Proprietary
Enhancement and Services Agreement
EXHIBIT B
I. SERVICES TO BE PERFORMED
Data911 agrees to provide Client during the term of this Agreement, under the fees scheduled herein
and subject to the provisions set forth below, the services hereinafter described with respect to
Client's application software.
For Data9l l Software Products, a two-hour response time during normal business hours
(Monday — Friday, 0900 —1700) for emergency support requests. An emergency is defined
as an application failure of the software defined in Exhibit A. Response is defined as the
point in time when Data911 begins diagnosis of the reported problems. Client shall use the
method of communication that is identified by Data911 for emergency service requests.
Modem on-line software technical support service shall be used when applicable. Data9l l
shall provide 24-hour response time for on-site software emergency service, when required.
Travel and accommodations charges incurred will be billed to Client.
Provision of media and for all new releases/modifications to the software modules listed in
Exhibit A at no additional cost to Client. Installation, conversion of data, and training will be
charged at a quoted hourly/not to exceed rate at the election of Client.
Telephone consultation regarding:
(a). Questions related to public safety data practices and procedures.
(b). System administration consultation and assistance; e.g. paper flow and retention.
(c). Exceptions to Standard Procedures.
(d). Modification of Client's computer software or purchase of additional hardware.
II. NON -CHARGEABLE SERVICES
1. There shall be NO CHARGE for any new releases or enhancements to Data911's Software as
provided to all its clients under Enhancement and Service Agreements.
and Proprietary
Enhancement and Services Agreement
III. CHARGEABLE SERVICES
1. Items listed below are not under Data911's control, and are therefore chargeable. Client will
be billed at Data911's then -current rate or a fixed charge to be agreed upon.
Examples:
(a). Recovery of lost data caused by Hardware or operator error.
(b). Assistance with Word Processing and/or other software, including Operating System
software, not written by Data911.
(c). Assistance due to User failure to follow prescribed procedures or exercise normal
care in data processing.
(d). Research, review, and revision of operational work.
(e). Upgrading of Client hardware system, new operating system and data conversion.
(f). Re-training on modules already operational.
(g). Additional copies of software documentation.
(h). Installation or interfacing of additional hardware, software, and upgrades.
(i). Cabling.
* Data911 time is chargeable in 15 minute increments for chargeable services
requested/completed during normal business hours.
* A minimum charge of 1 hour applies for all chargeable services
requested/completed during non -business hours.
* Travel and accommodations charges for on-site service calls will be billed to
Client.
Confidential and Proprietary
Enhancement and Services Agreement
EXHIBIT C
I.GENERAL
Data911 shall have full, Client controlled, access to Client's computer system for purposes of
performing its obligations under this Agreement. A 2400 Baud Modem, and supporting
telephone facility and services is to be supplied by the Client.
2. Custom programming for Client or special program modifications are not included under this
agreement.
At all times during the term of this Agreement, Data911 shall be an independent contractor
and shall not be an employee of Client. Client shall have the right to control Data911 only
insofar as the result of Data911's services rendered pursuant to this Agreement; however,
Client shall not have the right to control the means by which Data911 accomplishes services
rendered pursuant to this Agreement.
4. Data911 shall devote such time to the performance of services pursuant to this Agreement as
may be reasonably necessary for satisfactory performance of Data911's obligations pursuant
to this Agreement.
Neither Data9l 1 nor Client shall be liable to the other for any delay or failure in performance
on their respective obligations, other than the obligation to pay any monies to the other parry
when such monies are due and payable, as a result of an event of force majeure. For the
purpose of this section, events of force majeure are defined to be (a) any act, delay, or failure
to act on the part of any governmental authority, (b) acts of God, (c) accident or disruption
caused by fire or explosion, (d) any act, delay, or failure to act on the part of any
subcontractor of Data911, or (e) labor difficulties such as strikes or slowdowns; in all cases,
the occurrence of which is beyond the reasonable control, and not caused by the negligence
of, the party claiming an excuse for its delay or failure in performance. The time for
performance shall be extended for a period equal to the period during which the event of
force majeure, as described in this section, prevented performance. Notwithstanding any
implication to the contrary herein, no event of force majeure shall excuse Data911 from its
obligation to provide any hardware, software or services to the extent it may obtain such
hardware, software or services from a source other than the source, including its
subcontractors, it originally intended to use in sufficient quantity and within sufficient time
to meet such obligations at no material additional expense.
5. Data911 shall have no liability whatsoever for general damages, extraordinary costs, loss of
profits, or incidental, indirect, special or consequential damages (even of it has been apprised
of the likelihood thereof) arising out of or in connection with Data911's obligations or
performance hereunder or any breach hereof. In the event of Data911's material breach of
this Agreement, Client may cancel this Agreement and refuse to pay Data911's invoice for
the particular service which is the immediate subject of the breach, such rights being the sole
Confidential and Proprietary
Enhancement and Services Agreement
and exclusive remedies available to Client. Delay or failure of performance by Data911 shall
not constitute a breach hereunder where the same is due to any cause or condition beyond
Data911's reasonable control.
Data911 shall not be responsible for, and Client shall indemnify, defend and hold harmless
Data911 from and against, and release Data911 from any claim by it with respect to, any and
all claims, demands, suits, actions, proceedings, judgments, losses, damages, injuries,
penalties, costs, expenses (including attorney's fees) and liabilities of, by or with respect to
third parties, to the extent such arise from Client's negligence or willful misconduct.
6. Client shall be responsible for ensuring that all of its files are adequately duplicated on a
current basis ("backed -up' " as used in the trade) in accordance with the highest and most
up-to-date standards of the computer industry and Client shall indemnify Data911 against
Client's failure to do so.
7. Should Data911 deem it necessary to refer the enforcement of its right to payment hereunder
to its attorneys, Client shall pay such attorneys' reasonable fees and expenses and costs of
suit.
This Agreement shall be binding upon and inure to the benefit of the parties hereto and their
respective representatives, successors and assigns.
9. Equal Employment Opportunity - During the performance of this Agreement, Data9l l
agrees as follows:
A. Data911 will not discriminate against any employee or applicant for employment because
of race, color, religion, or national origin. Data911 will take affirmative action to ensure that
applicants are employed, and that employees are treated during employment, without regard
to their race, color, religion, sex or national origin. Such action shall include, but not be
limited to the following: employment upgrading, demotion, transfer, recruitment or
recruitment advertising; layoff or termination; rate of pay or other forms of compensation;
and selection for training, including apprenticeship. Data911 agrees to post in conspicuous
places, available to employees and applicants for employment, notices setting forth the
provisions of this non-discrimination clause.
B. Data911 will, in all solicitations or advertisements for employees placed by or on behalf
of Data911 state that all qualified applicants will receive consideration for employment
without regard to race, color, religion, sex or national origin.
C. Data911 will cause the foregoing provisions to be inserted in all subcontracts for any
work covered by this Agreement, provided that the foregoing provisions shall not apply to
contracts or subcontracts or standard commercial supplies or raw materials.
10. Data911 AS AGENTS - Except as Client may specify in writing, Data911 shall have no
authority, express or implied, to act on behalf of Client in any capacity whatsoever as an
agent. Data911 shall have no authority, express or implied, pursuant to this Agreement to
Confidential and Proprietary
Enhancement and Services Agreement
bind Client to any obligation whatsoever.
11. CHANGES - The Client may, from time to time, request changes in the Scope of Services of
the Agreement to be performed hereunder. Such changes including any increase or decrease
in the amount of Data911's compensation, which are mutually agreed-upon by and between
the Client and Data911, shall be incorporated in written amendments to this Agreement.
12. This Agreement shall be construed and enforced in accordance with the laws of the State of
California.
13. Data911 shall not be held to have waived any of the provisions hereof for failure to invoke
any of the remedies available to it in the event of any breach by Client of this Agreement.
The waiver by Data911 of any provision of this Agreement shall not be deemed to be a
waiver of any such provision on any subsequent breach of any other provisions.
14. All notices required or permitted to be given by either party to the other hereunder shall be in
writing, sent by U.S. mail, postage prepaid, addressed to the other party at the address for it
first above mentioned or to such other place as may have been given by similar notice by
such other party. All notices shall be deemed given when properly posted except notice of
change of address which shall be deemed given when received.
15. This instrument constitutes the complete and exclusive statement of the agreement between
the parties and supersedes all contemporaneous and previous agreements and
communications, oral or written, between the parties with respect to the subject matter of this
Agreement. Any statement, agreement, representation or other communication or expression
not contained herein is without authorization of, and shall not be binding on Data911. This
Agreement may not be modified or supplemented except by an instrument duly executed on
behalf of the then parties bound hereby including, if the same is a corporation, only by an
officer thereof.
Confidential and Proprietary
Enhancement and Services Agreement
MDS Extended Warranty Agreement
This Agreement is made as of (Agreement Date) at Alameda, California, by and between
Hubb Svstems, LLC DBA Data911 and the City of Lodi (Client).
1. HARDWARE. Subject to the terms and conditions set forth in this Agreement, Data911 shall provide
maintenance and repair service for the hardware described in Exhibit "A".
2. PAYMENT. Client shall pay Data911 for services rendered as specified in Exhibit "B". Payment shall
be made directly to Data911. Data911 shall submit all billings for said services to Client in the manner specified
in Exhibit "A
3. FACILITIES AND EQUIPMENT. Data911 shall. at its sole cost and expense, furnish all facilities, tools
and equipment, which may be, required for furnishing hardware repair services pursuant to this Agreement_
4. SERVICE. Data911 offers this full service hardware maintenance agreement and promises to provide the
services detailed in Exhibit "B" Statement of Work. Services include the repair of hardware submitted under this
contract and specified in the equipment list and will include all parts and labor subject to the conditions outlined
herein.
5. TERM. Upon signature of this agreement and payment for the Extended Warranty Agreement, the
Agreement will be in full force and effect through the Extended Warranty Expiration date for each unit as
described in Exhibit "A".
6. EXHIBITS. All exhibits referred to herein are attached hereto and are by reference incorporated herein
as though set forth in full. Exhibit "A" includes a complete list of the equipment, costs, term of service, contract
term, billing procedures and payment methods, which shall be covered under this agreement. Exhibit `B" details
the Services rendered, the RMA procedure, and the parts and labor availability. Exhibit "C" refers to General
Terms and Conditions.
EXECUTED as of this day first above -stated.
H. Dixon Flynn
City Manager
Attest:
Susan J. Blackston
Citv Clerk
Approved as to Form:
Ran Tall A. Hays
City Attorney
Confidential and Proprietary
Data 911 Representative
Page 1
AIDS Extended Maintenance Agreement
EXHIBIT A
I. Maintenance Equipment List, Contract Term, Price Schedule.
MDS Unit Serial # Annual Extended Contract Term/Unit
Warranty Price/Unit
1535
$240/ T
07/01/02 — 06/30/03
3968
$240/ T
07/01/02 — 06/30/03
4740
$240/
07/01/02 — 06/30/03
4741
$240/
07/01/02 — 06/30/03
4742
$240hT
07/01/02 — 06/30/03
4743
$240/�T
07/01/02 — 06/30/03
4744
$240/ T
07/01/02 — 06/30/03
4745
$240/yr
07/01/02 — 06/30/03
4746
$240/yr
07/01/02 — 06/30/03
4747
$240/ T
07/01/02 — 06/30/03
4748
$2408T
07/01/02 — 06/30/03
4749
$240/ST
07/01/02 — 06/30/03
4777
$240/
07/01/02 — 06/30/03
4778
$240/yr
07/01/02 — 06/30/03
4779
$240/
07/01/02 — 06/30/03
4780
$240/
07/01/02 — 06/30/03
4781
$240/yr
07/01/02 — 06/30/03
4782
$240/ T
07/01/02 — 06/30/03
4783
$240/ T
07/01/02 — 06/30/03
4784
$240/
07/01/02 — 06/30/03
4785
$240hT
07/01/02 — 06/30/03
4786
$240/
07/01/02 — 06/30/03
7658
Initial Warrantv No Charge
07/01/02 — 06/30/03
7659
Initial Warranty No Charge
07/01/02 — 06/30/03
Total Cost: $5.280
II. Term
1. The term of this Agreement shall be for twelve months (a "contract" year)
commencing on the date of this Agreement and shall continue from year to year
thereafter, but shall be terminable by either party at the end of any contract year
upon written notice given thirty days prior to the end of any contract year. This
Agreement shall be in full force and effect only upon final execution of this
agreement, payment and receipt thereof by Data911 at 2021 Challenger Drive,
Alameda, CA 94501
91iConfidential and Proprietary Page 2
MDS Extended Maintenance Agreement
2. This Agreement may by terminated by either party upon ten days notice to the
other in the event of any material default hereunder by the other party.
3. This Agreement may be terminated by Data911 if the Mobile Data Systems
supported are altered or enhanced by any entity (including Client) other than
Data911, anything to the contrary herein notwithstanding.
4. No termination hereunder shall release Client from its obligation to make
payment for services rendered through the date of termination.
III. Billing Procedures And Payment Method
1. Client shall pay Data911 for services rendered based on the costs, equipment and
terms as specified. Payment shall be made directly to Data9l 1 for services rendered
pursuant to this Agreement. Data911 shall submit an invoice for said services with
this MDS Extended Warranty. Agreement to Client to the address listed below:
City of Lodi
Accounts Payable
Attn: Lt. Brian Noblett
P.O. Box 3006
Lodi, CA 95241-1910
Confidential and Proprietary Page 3
MDS Extended Maintenance Agreement
EXHIBIT B
STATEMENT OF WORK
I. Services
Services provided are limited to, during the term of this contract, Data911's
repair or replacement, at Data911's discretion, of any part or component, which
prohibits the proper and normal operation of the Data911 equipment specified
in Exhibit "A". Maintenance services include, but are not limited to, all parts
and/or labor required to identify the failure and to repair the equipment to
guarantee proper working condition of the product returned.
H. Return Material Authorization Procedure
Upon determination that a hardware failure has occurred the client will contact
Data911 by telephone at (510) 865-9100 ext. 125 to obtain a Return Material
Authorization number. A qualified Data911 technician will provide initial
telephone consultation to assist the client in problem analysis and determination,
as some problems may be in other layers of the system and therefore will not
require the return of a unit.
Equipment is to be removed and returned to the factory, shipping prepaid by
Client. Prior to equipment shipment, Client is to call Data911 for a Return
Material Authorization (RMA) number. The RMA number is to be clearly
marked on shipping label or shipping container. The unit will be repaired and
shipped by Data911 back to Client via ground shipping service within 10
business days of receipt. Client is to pay for any expedited return shipping
service.
III. Parts and Labor Availability
Data911 will guarantee that for a period of ten years from the time of purchase
of new equipment, availability of parts and labor. If parts become unavailable
within the ten-year period, Data911 will replace the obsolete equipment to
equivalent functionality at no additional charge.
Confidential and Proprietary Page 4
MDS Extended Maintenance Agreement
EXHIBIT C
GENERAL TERMS AND CONDITION
I. General
Data911 shall have full access to Client's Mobile Data System computers for
purposes of performing its obligations under this Agreement. Data911 shall not be
responsible for the application software deployed on computers returned for
service, however Data911 will protect and support Clients obligations to third
party software licensers when so advised of any obligations Client may have in this
regard.
2. Client shall be responsible for ensuring that all of its files are adequately duplicated
for reloading on a current basis ("backed -up" as used in the trade) in accordance
with the highest and most up-to-date standards of the computer industry, and
Client shall indemnify Data911 against Client's failure to do so.
3. Custom hardware development and programming for Client or special program
modifications are not included under this agreement, but may be requested and
quoted for Client's consideration.
4. Client assures that all units identified by this Agreement are in good working order
and condition as of the this Agreement Date.
Data911 shall have no liability whatsoever for general damages, extraordinary
costs, loss of profits, or incidental, indirect, special or consequential damages (even
of it has been apprised of the likelihood thereof) arising out of or in connection
with Data911's obligations or performance hereunder or any breach hereof. In the
event of Data911's material breach of this Agreement, Client may cancel this
Agreement and refuse to pay Data911's invoice for the particular service, which is
the immediate subject of the breach, such rights being the sole and exclusive
remedies available to Client. Delay or failure of performance by Data911 shall not
constitute a breach hereunder where the same is due to any cause or condition
beyond Data911's reasonable control.
Data911 shall not be responsible for, and Client shall indemnify, defend and hold
harmless Data911 from and against, and release Data911 from any claim by it with
respect to, any and all claims; demands, suits, actions, proceedings, judgments,
losses, damages, injuries, penalties, costs, expenses (including attorney's fees) and
liabilities of, by or with respect to third parties, to the extent such arise from
Client's negligence or willful misconduct.
6. Should Data911 deem it necessary to refer the enforcement of its right to payment
hereunder to its attorneys, Client shall pay such attorneys' reasonable fees and
expenses and costs of suit.
7. Equal Employment Opportunity - During the performance of this Agreement,
eData911 agrees as follows:
Confidential and Proprietary Page 5
MDS Extended Maintenance Agreement
A. Data911 will not discriminate against any employee or applicant or employment
because of race, color, religion, or national origin. Data911 will take affirmative
action to ensure that applicants are employed, and that employees are treated
during employment, without regard to their race, color, religion, sex or national
origin. Such action shall include, but not be limited to the following: employment
upgrading, demotion, transfer, recruitment or recruitment advertising; layoff or
termination; rate of pay or other forms of compensation; and selection for training,
including apprenticeship. Data911 agrees to post in conspicuous places, available
to employees and applicants for employment, notices setting forth the provisions of
this non-discrimination clause.
B. Data911 will, in all solicitations or advertisements for employees placed on or
on behalf of Data911, state that all qualified applicants will receive consideration
for employment without regard to race, color, religion, sex or national origin.
C. Data911 will cause the foregoing provisions to be inserted in all subcontracts
for any work covered by this Agreement, provided that the foregoing provisions
shall not apply to contracts or subcontracts or standard commercial supplies or raw
materials.
This Agreement shall be binding upon and inure to the benefit of the parties hereto
and their respective representatives, successors and assigns.
9. This Agreement shall be construed and enforced in accordance with the laws ofthe
State of California_
10. Data911 shall not be held to have waived any of the provisions hereof for failure to
invoke any of the remedies available to it in the event of any breach by Client of
this Agreement, and the waiver by Data911 of any provision hereof shall not be
deemed to be a waiver of such provision on any subsequent breach of the same or
any other provision hereof.
11. The Client may, from time to time, request changes in the Scope of Services of the
Agreement to be performed hereunder. Such changes including any increase or
decrease in the amount of Data911's compensation, which are mutually
agreed-upon by and between the Client and Data911, shall be incorporated in
written amendments to this Agreement.
12. In the event that it becomes necessary for either party to this Agreement to bring a
legal suit to enforce any of the provisions of this Agreement, the parties agree that
a court of competent jurisdiction may determine and fix reasonable attorney fees to
be paid the successful litigant.
13. All notices required or permitted to be given by either party to the other hereunder
shall be in writing, sent by U. S. mail, postage prepaid, addressed to the other party
at the address for it mentioned in this agreement or to such other place as may have
been given by similar notice by such other party. All notices shall be deemed given
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NODS Extended Maintenance Agreemerd
when properly posted except notice of change of address, which shall be deemed,
given when received.
14. This instrument constitutes the complete and exclusive statement of the agreement
between the parties and supersedes all contemporaneous and previous agreements
and communications, oral or written, between the parties with respect to the
subject matter of this Agreement. Any statement, agreement, representation or
other communication or expression not contained herein is without authorization
of, and shall not be binding on, Data911. This Agreement may not be modified or
supplemented except by an instrument duly executed on behalf of the then parties
bound hereby including, if the same is a corporation, only by an officer thereof.
"`. Confidential and Proprietary Page 7
MDS Extended Maintenance Agreement