Loading...
FY2008-37 Megamation Directline Maintenance Software Service Agreement :~~ ~y~~~~^.~~ 'n ~~ inc Matntenan~e 5ervlt~e .SERVICE AGREEMENT t-tegemation Systems Inc_ t_BQ0.3a~.86S5 me~gamatlonsysteans.cam 4/15/2008MEGAMATION DIRECTLINE~ SERVICE AGREEMENT April 15, 2008 Kodiak Island Borough 710 Mill Bay Road Kodiak, AK 99615 MEGAMATION L.L.C. ("MegaMation") offers to provide Kodiak Island Borough ("Customer") with a service based on the terms and conditions set out in this service agreement. 1. Binding Agreement 1.1. This service agreement and all attached documents represent the definitive MegaMation DirectLine Service Agreement between MegaMation and the Customer ("Agreement"), in consideration of their mutual covenants and agreements. This Agreement supersedes all prior statements, promises, understandings or agreements. No modification or amendment to this Agreement shall be of any force or effect unless in writing and signed or initialed by both parties. 1.2. This Agreement shall bind the parties and their respective successors and permitted assigns. 1.3. All headings used in this Agreement are for convenience only and are not to be considered a part of this Agreement and do not, in any way, limit or amplify the terms and conditions of this Agreement. 2. Effective Date 2.1. This Agreement shall be effective from the Service Date as outlined by the Customer's written acceptance (see below). 2.2. Unless otherwise stated in this Agreement, all obligations or entitlement under this Agreement shall be effective from the Service Date as outlined below and shall continue in full force and effect for an initial term of one (1) YEAR, and shall continue and remain in full force and effect under the same terms and conditions for successive One (1) YEAR periods, unless and until terminated pursuant to the terms of this Agreement. 2.3. For clarity, pursuant to Section 12.1 below, this Agreement may be terminated by either party at any time on Thirty (30) Days written notice to the other party. 3. Warranties 3.1. The Software is warranted to perform according to any written specification delivered by MegaMation to the Customer during the continuance of this agreement. 3.2. The Customer warrants that it owns a licensed copy of Microsoft Office for use with any of MegaMation's Modules. 4. Patents and Cop,~nghts 4.1. The Customer agrees to include, and not to alter or remove, any applicable copyright, patent, trademark or other proprietary notices on all copies in whatever form of the Software. 5. MegaMation DirectLine Services 5.1. During the continuance of the Agreement, certain services shall be provided by MegaMation to the Customer and shall include the following services ("Web-Server Application Access Service"): April 15, 2008 MegaMation L.L.C. Page 2 4/15/2008MEGAMATION DIRECTLINETM SERVICE AGREEMENT a) the computer-based transfer of electronic Confidential Information of the Customer ("Server Information") directly to MegaMation's web-enabled application server ("Server"), provided that prior to effecting such transfer the Customer and MegaMation agree to execute a written acknowledgment setting out, in sufficient detail, the general nature of such Confidential Information; b) the transfer and retrieval of Server Information by the Customer connecting to the Server, whereby MegaMation will use its best efforts to ensure that the Server is maintained 24 hours a day, 7 days a week, subject to scheduled outages/downtimes or restrictions and to outages/downtimes by reason of any cause not reasonably within MegaMation's control which is not to exceed 4 hours cumulatively per month on an annual basis; c) telephone, Internet and modem consultations by MegaMation with the Customer's authorized representatives expressly for resolving problems with the transfer or retrieval of Server Information, which consultations shall be provided between the hours of 3:00 AM to 9:00 PM (EST and EDT) Monday to Friday, and between the hours of 6:00 AM to 6:00 PM (EST and EDT) Saturday & Sunday excluding statutory holidays scheduled outages/downtime or restrictions for the Server and outages/downtimes by reason of any cause not reasonably within MegaMation's control; d) the back-up of Server Information on a daily basis (or as otherwise mutually agreed upon between the parties) to be stored in a fireproof, off-site location (i.e. separate and apart from MegaMation's premises); e) the protection of Server Information by using, in addition to an independent user connection for the Server's database, the following currently available security systems: (a) Windows NT40 Security Module; (b) Citrix Security Module Server; and (c) DirectLineT'" Security Module; fl reasonable advance notice by MegaMation to the Customer of scheduled outages/downtimes or restrictions for the Server; and prompt notice by MegaMation to the Customer if MegaMation is delayed or prevented from performing any of its obligations herein, by reason of any cause not reasonably within MegaMation's control. In such an event, MegaMation, upon written request by the Customer, will use its best efforts to provide previously backed-up Server Information within 24 hours thereafter. g) convections of any program errors or discrepancies in the installed version of the Software, and the issuance of updates shall include such corrections; 5.2. It is acknowledged and agreed that the DirectLine Services pursuant to Section 5.1, above, shall not include: (a) upgrades to the PC operating system; or (b) on-site installation of the Software or updates for the Software as modified to the Customer's request. For clarity, MegaMation shall make an additional charge to the Customer, on a time and expense basis, if requested by the Customer to perform such items. 5.3. The DirectLine Services pursuant to Section 5.1, above, shall be performed by MegaMation provided that the Customer is not in default under this Agreement and shall be performed by duly qualified individuals employed or hired by MegaMation, in its sole discretion, in a professional manner. 6. Fee 6.1. For the DirectLine Services pursuant to Section 5 above, the Customer shall pay to MegaMation the fee(s) set out in Schedule "A" which is attached to and forms an integral part of this Agreement. 7. Limited Liability 7.1. Unless otherwise stated in this Agreement, MegaMation's liability under this Agreement for damages, regardless of the form of action, shall not exceed the total amount paid by the Customer herein during the TWELVE (12) MONTHS immediately preceding the date when the cause of such damages arose, provided that MegaMation shall not be held liable for any indirect, special, incidental or consequential damages (including but not limited to lost profits) resulting from the Customer's use of the Software, even if MegaMation has notice of the possibility of such damages. In the event MegaMation receives such notice of the possibility of such damages, MegaMation undertakes that it will with best efforts provide the Customer with such notice within Thirty (30) days. April 15, 2008 MegaMation L.L.C. Page 3 4/15/2008MEGAMATION DIRECTLINE~ SERVICE AGREEMENT 7.2. In no event shall MegaMation be liable to the Customer for damages arising out of any claim (including but not limited to a claim for personal injury or property damage) made against the Customer by any other person or party unless the cause of such claim is due to patent or copyright infringement, misrepresentation, negligence or willful misconduct of MegaMation. 7.3. The Customer shall indemnify and hold MegaMation, its officers, directors, employees, agents, legal counsel and other representatives harmless, from and against any losses incurred or suffered by such persons which are, directly or indirectly, or in any manner whatsoever, the result of, caused by or arise by reason of: (a) any intentional, wrongful or negligent act or omission of the Customer or of its officers, directors, employees, agents, legal counsel and other representatives in the performance of MegaMation or the Customer's obligations under this Agreement (b) any misrepresentation by, or breach of any acknowledgement of the Customer contained in this Agreement; and (c) any default by the Customer under, or any breach or contravention by the Customer of, any agreement, covenant term or provision of this Agreement. 8. Non-Disclosure & Confidentiality 8.1. For the purpose of this Section 8.1, "Recipient" means the party receiving Confidential Information and "Discloser" means the party disclosing Confidential Information. Each Recipient acknowledges that all material and information which has or will come into its possession or knowledge of each in connection with this Agreement or the performance hereof, consists of confidential and proprietary data ("Confidential Information"), the disclosure of which to or use by third parties may be damaging. The Recipient therefore agrees to hold such material and information in strictest confidence, not to make use thereof other than for the performance of this Agreement, to release it only to employees, agents, or contractors requiring such information, and not to release or disclose it, and to use reasonable efforts to cause such employees, agents and contracts not to release or disclose it to any other party. The obligations of the Recipient with respect to any particular portion of Confidential Information shall terminate or shall not attach, as the case may be, when any of the following occurs: i. It was in the public domain at the time of the Discloser's communication thereof to the Recipient; ii. It entered the public domain through no fault of the Recipient subsequent to the time of the Discloser's communication thereof to the Recipient; iii. It was in the Recipient's possession free of any obligation of confidence at the time of the Discloser's communication thereof to the Recipient; iv. It was independently developed by the Recipient; v. Its disclosure is required by court or government order and the Discloser has been given prior written notice of such order. 9. Default 9.1. Subject to Section 9.2., below, in the event that either party defaults on any of its material obligations provided for hereunder and such default is not cured within THIRTY (30) DAYS of written notice, or the defaulting party fails to take sufficient actions to the reasonable satisfaction of the other party to cure the default within THIRTY (30) DAYS of written notice, this Agreement may be terminated by the other party. 9.2. Notwithstanding anything else to the contrary in this Agreement, in the event that MegaMation is adjudicated a bankrupt or is in default pursuant to Section 9.1, above, MegaMation hereby grants to the Customer a perpetual, non-exclusive, non-transferable and non-assignable license and the Customer shall be entitled to retain the Software and use the Software and the source codes of the Software for its own internal purposes only, without additional costs to or obligations by either party. 9.3. For clarity, the Customer shall not access and use the source codes of the Software other than pursuant to this section 9.2. April 15, 2008 MegaMation L.L.C. Page 4 4/15/2008MEGAMATION DIRECTLINETM SERVICE AGREEMENT 10. Notices 10.1. Any notice, request or demand to or upon the respective parties hereto shall be in writing and shall be validly communicated by the delivery thereof to its addressee, either personally or by registered and prepaid mail or by telex, telecopier, telegram or cable to the address hereinafter mentioned: In the case of the Customer: Kodiak Island Borough, 710 Mill Bay Road, Kodiak, AK 99615 Attention: Bob Tucker Phone: (907) 483-9343 E-mail: btucker@kodiakak.us In the case of MegaMation L.L.C., 2810 Sweet Home Road, Amherst, New York, 14228 Attention: Robert Mutch, President Phone: 716-636-4455 E-mail bmutch@megamationsystems.com 11. Arbitration 11.1.In the event that any dispute occurs among the parties in respect of any matter from or provision of this Agreement, which cannot be resolved by the provisions of this Agreement or by agreement of the parties within SIXTY (60) DAYS, such matter or provision in dispute shall be resolved by arbitration. 11.2. A party may at any time require such arbitration, by giving written notice to the other party setting out in reasonable detail the issue in dispute. The dispute, including the allocation of costs for the arbitration, shall then be determined by a single arbitrator appointed by agreement between the parties or in default of such agreement, by a Judge in the courts of the State of the New York and the United States District Court for the Western District of New York upon application by any party. The arbitration shall proceed in the City of Buffalo, New York under the rules then obtaining of the American Arbitration Association. There shall be no appeal from any award of such arbitrator. 12. Termination 12.1. This Agreement may be terminated by either party on Thirty (30) Days written notice to the other party. 12.2. Subject to 9.2, above, upon termination of this Agreement, however caused, and within SIXTY (60) Days of written notice and payment of all agreed upon outstanding invoices to MegaMation, MegaMation shall promptly provide following the event of termination, a copy of the customer's data, as stored by MegaMation within its database, on a computer disk or will FTP such data to a site identified by the Customer in the format of an Excel spreadsheet. In addition, such customer's data shall be erased from all MegaMation's servers and backup. 13. Assignment of Rights 13.1. This Agreement is not assignable by either party, voluntarily or by operation of law, without the prior written consent of the other party. Any attempt by a party to assign any of the rights, duties or obligations of this Agreement without such consent, shall be void. 14. A~nlicable Law 14.1. This Agreement shall be construed and interpreted according to the laws of the State of New York and each party attorns to the jurisdiction of such courts. 15. Waiver 15.1. The waiver, in writing, by any party of a breach or default of any of the provisions of this Agreement by the other party, shall not be construed as a waiver of any succeeding breach of the same or other provisions, nor will any delay or omission on the part of a party to exercise or avail itself of any right, power or privilege that it has or may have under this Agreement, operates as a waiver of any breach or default by the other P~Y• 16. Invalidity & Severabilitv 16.1. If any provision of this Agreement is found by any court or administrative body of competent jurisdiction, to be invalid or unenforceable, such invalidity or unenforceability will not affect the other provisions of this Agreement, and all provisions not so affected by such invalidity or unenforceability shall remain in full force and effect. April 15, 2008 MegaMation L.L.C. Page 5 4/15/2008MEGAMATION DIRECTLINE~ SERVICE AGREEMENT 17. Currency 17.1. All dollar amounts referred to in this Agreement are in United States funds. IN WITNESS WHEREOF the parties have caused this Agreement to be executed on their behalf by their duly authorized representatives as of the Effective Date. MEGAMATION L.L.C. By: Signature Name: 4~oN~~v~ 3.,JUZ Title: y P -IC~nI+ANC~ I have the authority to bind the Corporation Date: m~''~ ~i oZ00~ ("Service Date") CUSTOMER By: K>~ SignQature / Name: K . ~ L G.' ~~~C Title: E'>,~ rv u.., /~ i!'/4i~R ~ Uhf I have the au ority to bind the C oration Date: .s~ 3~8 •., ~ O 4 #' 0 '- ~ C ~ ~' hA Y "\ 11 V / ~~gSKA ~r 19°3 ~c,1,A~©G4 ~. "~. ~ Mp~ar/ d bear- /~~~a ~/av,'t ~ April 15, 2008 MegaMation L.L.C. Page 6 . . .a 4/15/2008MEGAMATION DIRECTLINETM SERVICE AGREEMENT SCHEDULE "A" This Schedule "A" is attached to and forms an integral part of the MegaMation DirectLineT"' Service Agreement dated April 15, 2008 between MegaMation and the Customer ("Agreement"). Pursuant to Sections l.l.and 6.1 of the Agreement, this Schedule "A" is not intended to replace the Agreement, but shall amend and be in addition to it. Unless expressly stated to the contrary, all defined terms herein (denoted with initial capital letters) shall have the meanings assigned to them in the Agreement: MegaMation DirectLine ASP Application 1. Equipment Management & Specs 2. Work Order Management 3. Work Order Schedules 4. Preventive Maintenance 5. Safety/Standard Procedures 6. Inventory/Requisitioning 7. Bar code integration 8. Purchasing 9. Request for Quotation Module 10. Contract Management 11. Health & Safety Module 12. Employee Timecard 13. Document manager 14. Hand Held Tablet PC 15. Calibration 16. Tool & Die Tracking 17. Readings 18. Project Management 19. Fleet Management Module 20. Reporting, Analysis and KPIs Facility Modules 21. Space Planning & Scheduling Module 22. Lock & Key Inventory Module 23. Hazardous Materials Module 24. Asset TrackingUtility Tracking Services 25. Capital Planning Reserve Fund Module 26. Budgeting & Chargebacks 27. Help Desk 0 MegaMation Personal Account Manager 8 No limitation to number of named users 8 Unlimited Internet Training 8 Unlimited Internet Support Services 8 Unlimited phone-in support -Watts line 8 Annual upgrade to enhanced version of soi~ware Web-enabled and Web-server Application Access Including: 0 Use of server 8 Archiving and administration 8 Data storage 8 Security and user administration 8 Database back-up (off-site) Q Secured internet access April 15, 2008 MegaMation L.L.C. Page 7 << , MEGAMATION DIRECTLINE~ SERVICE AGREEMENT ~ v MEGAMATION DIRECTLINE~+ MONTHLY FEE MegaMation DirectLine Service (80 hours/month) y Includes 80 hours of system access per month Includes data upload using template spreadsheets $295.00 TOTAL MONTHLY FEE $295.00 Terms & Conditions 1. Payment terms: net 30 days from date of invoice, 2% services charge per month on overdue accounts. Monthly service fee is billed in advance. 2. Billing commences on the Service Date listed below. 3. Monthly Fee is billed in advance. 4. All applicable taxes are extra. 5. System Modifications or Additional Consulting Services available @ $187.50 per hour. Subject to the Customer's prior approval, out of pocket expenses are extra and will include a 5% admin fee. 6. The monthly fees as specified on this schedule are for the initial term as defined in the Agreement. MegaMation has the right to increase its monthly fees on any renewal but in no event will this increase exceed The Bureau of Labor Statistics' most recently published annual Consumer Price Index (CPI). MegaMation also has the right to increase the hourly Consulting and Customization rates on an annual basis. 7. The Customer warrants that it owns a licensed copy of Microsoft Office for use with any of MegaMation's modules. April 15, 2008 MegaMation L.L.C. Page 8 J ~ . t/ MEGAMATION DIRECTIINE*~ SERVICE AGREEMENT BILLING INFORMATION Customer: Kodiak Island Borough 710 Mill Bay Road Kodiak, AK 99615 Bill to Address: Same as Above ^ OR Purchase Order: Vendor Information: MegaMation L.L.C. 2810 Sweet Home Road, Amherst NY 14228 FID # 16-1494025 Phone No. 716-636-4455 Fax No. 905-844-0347 Please Indicate the Preference for Billing: ^ Prepay -12 months ^ Prepay - 6 months ^ Quarterly billing~Monthly billing ^ Credit Card To pay for the following options by Credit Card, Please provide the following information: ^ Visa ^ Mastercard Card Expiry Date Name of Cardholder Signature: Date: April 15, 2008 MegaMation L.L.C. Page 9 ~o~~ _~J July 23, 2008. M,~on Kodiak Tsland Borough 710 Mill Bay Road Kodiak, AK 99615 MegaMation Systems Inc. 114 Lakeshore Road East Attn. Rick L. Gifford, Borough Manager Oakville, Ontario Canada L6J bN2 Rick, (905) 844-9947 Fax: (905) 844-0347 Enclosed is a signed copy of your agreement with MegaMation LLC for your records. If you should have any questions, please do not hesitate to contact me at 905-844-9947 ext. 2306. Thanks, Yours truly, ~~`, ~ Don Byers, VP Finance ~p~ 31 2008 L~~~ ~~~ KIS ~SANAGER