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R-09-08-13-10E3 - 8/13/2009RESOLUTION NO. R -09-08-13-10E3 WHEREAS, the City has a need for technical services for system maintenance and support activities associated with an automated mobile handheld citation entry system, and WHEREAS, Brazos Technology Corporation has submitted an agreement to provide said services, and WHEREAS, the City Council desires to enter into said agreement with Brazos Technology Corporation, Now Therefore BE IT RESOLVED BY THE COUNCIL OF THE CITY OF ROUND ROCK, TEXAS, That the Mayor is hereby authorized and directed to execute on behalf of the City a Software Maintenance Agreement with Brazos Technology Corporation, a copy of said agreement being attached hereto as Exhibit "A" and incorporated herein for all purposes. The City Council hereby finds and declares that written notice of the date, hour, place and subject of the meeting at which this Resolution was adopted was posted and that such meeting was open to the public as required by law at all times during which this Resolution and the subject matter hereof were discussed, considered and formally acted upon, all as required by the Open Meetings Act, Chapter 551, Texas Government Code, as amended. RESOLVED this 13th day of August, 2009. ALAN MCGRAW, Mayor City of Round Rock, Texas ATTEST: SARA L. WHITE, City Secretary O:\wdox\SCClnts\0112\0905\MUNICIPAL\R90813E3.DOC/rmc )brazos technology EXHIBIT SOFTWARE MAINTENANCE AGREEMENT v1.1 This Agreement ("Agreement") is made and entered into and effective 6th day of May 2009, by and between Brazos Technology Corporation, having its principal place of business at 707 South Texas Ave, Suite 103D, College Station, Texas 77840, USA ("Brazos Technology") and City of Round Rock, a Texas Municipality, having its principal place of business at 221 East Main Street, Round Rock, TX 78664 ("Licensee"). Licensee WHEREAS, BRAZOS TECHNOLOGY has provided to Licensee certain software as specified in Exhibit A of this Agreement ("Covered Software") pursuant to a software license agreement between the parties (the "License Agreement"); and WHEREAS, Licensee wishes to have BRAZOS TECHNOLOGY provide maintenance and support services pursuant to the terms and conditions of this Agreement; NOW, THEREFORE, the parties agree as follows: I. INCORPORATION OF DOCUMENTS The following documents are attached hereto and, by this reference, incorporated in this Agreement: Exhibit A Covered Sites, Software & Configuration Exhibit B Authorized Licensee Contacts Exhibit C Services and Fees II. COVERAGE During the term of this Agreement, BRAZOS TECHNOLOGY agrees to provide maintenance and support services for the Covered Software operating at the site(s) and on the hardware configurations listed in Exhibit A ("Maintenance Services"). Unless specifically listed in Exhibit A, Section II, Covered Software does not include hardware vendor operating systems and other system software, Licensee -developed software, and third -party software (except any third party software embedded in the Covered Software). III. DESCRIPTION OF MAINTENANCE SERVICES A. Support Services. During the term of this Agreement, BRAZOS TECHNOLOGY will provide the services described herein so as to maintain the Covered Software in Brazos Technology Maintenance Agreement Page 1 of 11 CONFIDENTIAL INFORMATION brazos technology good working order, keeping it free from material defects so that the Covered Software shall function properly and in accordance with the accepted level of performance as set forth in the License Agreement. v1.1 (1) Service Response. BRAZOS TECHNOLOGY will make available to Licensee a telephone number (the "Support Center HOTLINE") for Licensee to call requesting service of the Covered Software. The Support Center HOTLINE operates 24 hours per day, 365 days per year. This includes weekends and legal holidays. The HOTLINE can also be used to notify BRAZOS TECHNOLOGY of problems associated with the Covered Software and related documentation. B. Remedial Support. Upon receipt by BRAZOS TECHNOLOGY of notice from Licensee through the Support Center HOTLINE of an error, defect, malfunction or nonconformity in the Covered Software, BRAZOS TECHNOLOGY shall respond as provided below: Severity 1: Produces an emergency situation in which the Covered Software is inoperable, produces incorrect results, or fails catastrophically. RESPONSE: BRAZOS TECHNOLOGY will provide a response by a qualified member of its staff to begin to diagnose and to correct a Severity 1 problem as soon as reasonably possible, but in any event a response via telephone will be provided within one (1) hour. BRAZOS TECHNOLOGY will continue to provide best efforts to resolve Severity 1 problems in less than forty-eight (48) hours. The resolution will be delivered to Licensee as a work -around or as an emergency software fix. If BRAZOS TECHNOLOGY delivers an acceptable work -around, the severity classification will drop to a Severity 2. Severity 2: Produces a detrimental situation in which performance (throughput or response) of the Covered Software degrades substantially under reasonable Toads, such that there is a severe impact on use; the Covered Software is usable, but materially incomplete; one or more mainline functions or commands is inoperable; or the use is otherwise significantly impacted. RESPONSE: BRAZOS TECHNOLOGY will provide a response by a qualified member of its staff to begin to diagnose and to correct a Severity 2 problem as soon as reasonable possible, but in any event a response via telephone will be provided within four (4) hours. BRAZOS TECHNOLOGY will exercise best efforts to resolve Severity 2 problems within five (5) days. The resolution will be delivered to Licensee in the same format as Severity 1 problems. If BRAZOS TECHNOLOGY delivers an acceptable work -around for a Severity 2 problem, the severity classification will drop to a Severity 3. Severity 3: Produces an inconvenient situation in which the Covered Software is Brazos Technology Maintenance Agreement Page 2 of 11 CONFIDENTIAL INFORMATION brazos technology vti usable, but does not provide a function in the most convenient or expeditious manner, and the user suffers little or no significant impact. RESPONSE: BRAZOS TECHNOLOGY will exercise best efforts to resolve Severity 3 problems in the next maintenance release. Severity 4: Produces a noticeable situation in which the use is affected in some way which is reasonably correctable by a documentation change or by a future, regular release from BRAZOS TECHNOLOGY. RESPONSE: BRAZOS TECHNOLOGY will provide, as agreed by the parties, a fix or fixes for Severity 4 problems in future maintenance releases. C. Maintenance Services. During the term of this Agreement, BRAZOS TECHNOLOGY will maintain the Covered Software by providing software updates and enhancements to Licensee as the same are offered by BRAZOS TECHNOLOGY to its licensees of the Covered Software under maintenance generally ("Updates"). All software updates and enhancements provided to Licensee by BRAZOS TECHNOLOGY pursuant to the terms of this Agreement shall be subject to the terms and conditions of the License Agreement between the parties. Updates will be provided on an as -available basis and include the items listed below: (1) Bug fixes; (2) Enhancements to market data service software provided by BRAZOS TECHNOLOGY to keep current with changes in market data services or as BRAZOS TECHNOLOGY makes enhancements; (3) Enhancements to keep current with the current hardware vendor's OS releases, as available from BRAZOS TECHNOLOGY, provided that the current hardware vendor's OS release is both binary and source - compatible with the OS release currently supported by BRAZOS TECHNOLOGY; and (4) Performance enhancements to Covered Software. (5) Updates do not include: (a) Platform extensions including product extensions to (i) different hardware platforms; (ii) different windowing system platforms; (iii) different operating system platforms; and (b) New operating system updates or hardware bios updates. Updates will be provided in machine-readable format and updates to related Brazos Technology Maintenance Agreement Page 3 of 11 CONFIDENTIAL INFORMATION 4brazos technology v1.1 documentation will be provided in hard copy form. All such deliveries shall be made electronically to the installed computers automatically during a sync process. Licensee agrees to sync each device no Tess than once per month to obtain any software or configuration changes. Duplication, distribution and installation of documentation updates are the responsibility of Licensee. If requested, BRAZOS TECHNOLOGY will provide on-site assistance in the installation of Updates on a time and materials basis, plus expenses. BRAZOS TECHNOLOGY will provide support services for previous releases for a minimum period of six (6) months following the general availability of a new release or software update. After this time, BRAZOS TECHNOLOGY shall have no further responsibility for supporting and maintaining the prior releases. BRAZOS TECHNOLOGY assumes no responsibility for the correctness of, performance of, or any resulting incompatibilities with, current or future releases of the Covered Software if the Licensee has made changes to the system hardware/software configuration or modifications to any supplied source code which changes effect the performance of the Covered Software and were made without prior notification and written approval by BRAZOS TECHNOLOGY. BRAZOS TECHNOLOGY assumes no responsibility for the operation or performance of any Licensee -written or third -party application. D. Services Not Included. Maintenance Services do not include any of the following: (1) custom programming services; (2) on-site support, including installation of hardware or software; (3) support of any software not Covered Software; (4) training; or (5) out-of-pocket and reasonable expenses, including hardware and related supplies. IV. ON-SITE SUPPORT As requested by Licensee, and upon reasonable notice and approval by BRAZOS TECHNOLOGY, BRAZOS TECHNOLOGY shall maintain personnel at any of the covered Sites. On-site personnel will perform ongoing system administration, monitoring, reconfiguration and tuning, problem diagnosis, and resolution, and interfacing with Licensee personnel on production system issues, to the extent possible during normal business hours. These personnel shall also be responsible for the installation of new BRAZOS TECHNOLOGY software releases on the production system and the distribution of documentation updates. In addition, on-site personnel will provide training to Licensee personnel on the operation and administration of the Covered Software as time permits. V. TIME AND MATERIALS SERVICES A. For Non-BRAZOS TECHNOLOGY Problems. In the event that Licensee notifies BRAZOS TECHNOLOGY of a problem experienced by Licensee in Brazos Technology Maintenance Agreement Page 4 of 11 CONFIDENTIAL INFORMATION )brazos technology vti connection with the operation of the Covered Software, BRAZOS TECHNOLOGY shall respond as provided in Section III.B., above. If the cause of such problem is not an error, defect or nonconformity in the Covered Software, Licensee shall compensate BRAZOS TECHNOLOGY for all work performed by BRAZOS TECHNOLOGY in connection therewith, on a time and materials basis at Brazos Technology's then current standard rates, unless otherwise agreed by the parties in writing at the time, plus expenses. Expenses for travel and travel- related expenses and individual expenses in excess of US$500 require the prior approval of Licensee. B. For Non-BRAZOS TECHNOLOGY Software. Upon request and reasonable notice from Licensee, BRAZOS TECHNOLOGY will provide assistance in the installation of non-BRAZOS TECHNOLOGY software on a time and materials basis, plus expenses. Non-BRAZOS TECHNOLOGY software consists of any software not specifically listed in Exhibit A, Section II, including the following: 1. New releases and updates to hardware vendor operating systems and other system software not listed in Exhibit A; 2. Licensee -developed software; and 3. Third -party software (except third party software embedded in the Covered Software). VII. ACCESS Software Maintenance is conditioned upon provision by Licensee to BRAZOS TECHNOLOGY of reasonable appropriate access to the system(s) running the Covered Software, including, but not limited to, passwords, system data, file transfer capabilities, and remote log -in -capabilities. BRAZOS TECHNOLOGY will maintain security of the system and use such access only for the purposes of this Agreement and will comply with Licensee standard security procedures. Information accessed by BRAZOS TECHNOLOGY agents or employees as a result of accessing Licensee system shall be deemed confidential information pursuant to the terms of the Software License Agreement executed concurrently between the parties hereto. Licensee shall also use commercially reasonable efforts to provide an active voice telephone line at each site which is available continuously when required for support access. VIII. PROBLEM REPORTING AND TRACKING PROCEDURES Licensee may use the services described herein only by making reference to the authorized support Agreement number. All such reports and requests will be made through the authorized individuals (up to two [2] per site), designated by Licensee in Exhibit B, who may be changed by Licensee from time to time by written notice to Brazos Technology Maintenance Agreement Page 5 of 11 CONFIDENTIAL INFORMATION brazos technology v1.1 BRAZOS TECHNOLOGY. A twenty-four (24) hour Support Center HOTLINE is provided for problem reporting outside of normal business hours. IX. FEES A. Maintenance Fees. Fees for Maintenance Services provided under this Agreement are contained in Exhibit C. Any time a site or software package is added or deleted from Exhibit A, BRAZOS TECHNOLOGY will automatically adjust and/or amend Exhibit A and Exhibit C accordingly. BRAZOS TECHNOLOGY will also perform a bi-annual audit of all sections in Exhibit A. If changes have occurred, BRAZOS TECHNOLOGY will adjust and/or amend Exhibit A and Exhibit C, and maintenance fees will be adjusted accordingly. Rates will be reviewed and adjusted accordingly when another site is added and/or the workstation/server base increases (i.e., added equipment and/or installed software) and/or software to be supported exceeds the Covered Software. B. Expenses. Licensee agrees to reimburse BRAZOS TECHNOLOGY for reasonable expenses related to the performance of services. Expenses may include, but are not limited to, charges for materials, freight, travel (including lodging and associated expenses), printing and documentation, and other out-of-pocket expenses reasonably required for performance. Expenses for travel and travel -related expenses and individual expenses in excess of US$500 require the prior approval of Licensee. X. PAYMENT A. Maintenance fees and fees for on-site support, if applicable, will be invoiced annually, thirty (30) days in advance of the year. XI. EXCLUSION OF LIABILITY BRAZOS TECHNOLOGY MAKES AND LICENSEE RECEIVES NO WARRANTY EXPRESS OR IMPLIED AND THERE IS EXPRESSLY EXCLUDED ALL WARRANTIES OF MERCHANTIBILITY AND FITNESS FOR A PARTICULAR PURPOSE. LICENSEE ACKNOWLEDGES AND AGREES THAT THE MAINTENANCE FEES AND OTHER CHARGES WHICH BRAZOS TECHNOLOGY IS CHARGING UNDER THIS AGREEMENT DO NOT INCLUDE ANY CONSIDERATION FOR ASSUMPTION BY BRAZOS TECHNOLOGY OF THE RISK OF LICENSEE CONSEQUENTIAL OR INCIDENTAL DAMAGES OR OF UNLIMITED DIRECT DAMAGES. ACCORDINGLY, BRAZOS TECHNOLOGY SHALL HAVE NO LIABILITY WITH RESPECT TO ITS OBLIGATIONS UNDER THIS AGREEMENT FOR CONSEQUENTIAL, EXEMPLARY, OR INCIDENTAL DAMAGES, EVEN IF IT HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. EXCEPT IN THE CASE OF GROSS NEGLIGENCE OR WILFUL MISCONDUCT, IN NO EVENT SHALL BRAZOS TECHNOLOGY BE LIABLE HEREUNDER TO LICENSEE FOR Brazos Technology Maintenance Agreement Page 6 of 11 CONFIDENTIAL INFORMATION 1brazos technology v1.1 CUMULATIVE DIRECT DAMAGES IN ANY AMOUNT GREATER THAN THAT PAID BY LICENSEE TO BRAZOS TECHNOLOGY UNDER THIS AGREEMENT AS A MAINTENANCE FEE FOR THE TWELVE (12) MONTH PERIOD IMMEDIATELY PRECEDING THE ACCRUAL OF THE CAUSE OF ACTION. XII. General A. Each party acknowledges that it is bound by the terms of this Agreement and further agrees that it is the complete and exclusive statement of the Agreement between the parties, which supersedes and merges all prior proposals, understandings and all other Agreement with respect to software maintenance, oral and written, between the parties relating to this Agreement. This Agreement may not be modified or altered except by a written instrument duly executed by both parties. B. This Agreement and performance hereunder shall be governed by and construed in accordance with the laws of the State of Texas. Any and all proceedings relating to the subject matter hereof shall be maintained in the state or federal courts of Williamson County, Texas, which courts shall have exclusive jurisdiction for such purpose. Each of the parties waives any objection to venue or in personam jurisdiction, provided that service is effective. C. If any provision of this Agreement shall be held to be invalid, illegal or unenforceable, the validity, legality and enforceability of the remaining provisions shall in no way be affected or impaired thereby. D. Neither party may assign, without the prior written consent of the other, its rights, duties or obligations under this Agreement to any other person or entity, in whole or in part. E. The waiver or failure of either party to exercise in any respect any right provided for herein shall not be deemed a waiver of any further right hereunder. XIII. TERM AND TERMINATION The term of this Agreement shall be for one (1) year. Software Maintenance service shall commence upon the expiration of the Warranty Period set forth in the License Agreement and shall remain in effect for the original one-year (1 -year) term and, thereafter, for renewal terms on a year-to-year basis until terminated (i) by Licensee in the event the Covered Software is taken out of service and upon sixty (60) days' notice to BRAZOS TECHNOLOGY; (ii) by either party upon sixty (60) days' notice prior to the expiration of the original one-year (1 -year) or any subsequent one-year (1 - year) renewal term; (iii) by either party upon a default of the other party, such default remaining uncured for thirty (30) days from the date of written notice from the non - defaulting party to the other specifying such default; (iv) upon the bankruptcy or Brazos Technology Maintenance Agreement Page 7 of 11 CONFIDENTIAL INFORMATION )brazos technology v1.1 insolvency of BRAZOS TECHNOLOGY; or (v) the License Agreement is terminated. Upon such termination, BRAZOS TECHNOLOGY shall refund to Licensee a portion of the maintenance fee prorated to reflect the date of termination and neither BRAZOS TECHNOLOGY nor Licensee shall have any further obligations hereunder. IN WITNESS WHEREOF, each party has caused a counterpart of the original of this Agreement to be executed as of the date first written above by its duly authorized representative. CITY OF ROUND ROCK BRAZOS TECHNOLOGY Signed: Signed: Print Name: Title: Date: Print Name: Michael McAleer Title: President Date: 617407 Brazos Technology Maintenance Agreement Page 8 of 11 CONFIDENTIAL INFORMATION )brazos technology EXHIBIT A -- COVERED SITES, SOFTWARE AND CONFIGURATION A. Covered Sites. This Agreement covers the following Licensee sites: Round Rock Police Department Round Rock Municipal Court B. Covered Software. This Agreement covers the following software components at each site listed in Exhibit A, Section A: Brazos BuiIdIT Website for eCitation processing Brazos RunIT Mobile software eCitation processing for both Symbol MC7Os C. Covered Configuration. v1.1 This Agreement covers the following configuration: Ten (10) workstation/PDA licenses of Covered Software purchased by Licensee. Brazos Technology Maintenance Agreement Page 9 of 11 CONFIDENTIAL INFORMATION 1brazos technology EXHIBIT B -- AUTHORIZED LICENSEE CONTACTS For purposes of this Agreement, the following individuals shall be designated per site as the authorized Licensee support contacts: Round Rock PD Address: Name Contact: Title Phone # v1.1 Brazos Technology Maintenance Agreement Page 10 of 11 CONFIDENTIAL INFORMATION 40)brazos technology EXHIBIT C -- SERVICES AND FEES A. Maintenance Fee v1.1 Maintenance Services for the applications and configuration listed in Exhibit A will be included in the software cost for the first year of this Agreement. This fee will be adjusted at each anniversary date of this Agreement to the then current pricing. Should additional software be licensed and installed at the Covered Site(s), the fee will be adjusted to reflect the additional software. Brazos Technology Maintenance Agreement Page 11 of 11 CONFIDENTIAL INFORMATION DATE: August 7, 2009 SUBJECT: City Council Meeting — August 13, 2009 ITEM: 10E3. Consider a resolution authorizing the Mayor to execute a software maintenance agreement with Brazos Technology for automated mobile handheld citation entry system (eTicket). Department: Staff Person: Justification: Police Heath Douglas, IT Infrastructure Manager The proposed software maintenance agreement describes the system maintenance and support activities to be provided by Brazos Technology Corp. through the purchase of an Automated Mobile Handheld Citation Entry System. This system would reduce the demand for data entry on Municipal Court personnel and create efficiencies in the police conduct of traffic stops and issuance of tickets. Collaborating with Municipal Court, the Police Department intends to approach the project through a phased implementation with this initial phase being a pilot phase with the purchase of handheld devices, the necessary back-office infrastructure, and ancillary materials. It is anticipated that the solution obtained through this funding will serve as the foundation for a City-wide e -Ticketing system that will ultimately create the ability to file 80 percent of all Municipal Court cases via electronic media. Funding: Cost: N/A Source of funds: N/A Outside Resources: None Background Information: Currently, all citations issued by the Police Department are created on paper. In calendar 2008, the Police Department issued 11,367 citations. Public Comment: N/A EXECUTED DOCUMENT FOLLOWS )brazos technology SOFTWARE MAINTENANCE AGREEMENT v1.1 This Agreement ("Agreement") is made and entered into and effective 6th day of May 2009, by and between Brazos Technology Corporation, having its principal place of business at 707 South Texas Ave, Suite 103D, College Station, Texas 77840, USA ("Brazos Technology") and City of Round Rock, a Texas Municipality, having its principal place of business at 221 East Main Street, Round Rock, TX 78664 ("Licensee"). Licensee WHEREAS, BRAZOS TECHNOLOGY has provided to Licensee certain software as specified in Exhibit A of this Agreement ("Covered Software") pursuant to a software license agreement between the parties (the "License Agreement"); and WHEREAS, Licensee wishes to have BRAZOS TECHNOLOGY provide maintenance and support services pursuant to the terms and conditions of this Agreement; NOW, THEREFORE, the parties agree as follows: I. INCORPORATION OF DOCUMENTS The following documents are attached hereto and, by this reference, incorporated in this Agreement: Exhibit A Covered Sites, Software & Configuration Exhibit B Authorized Licensee Contacts Exhibit C Services and Fees II. COVERAGE During the term of this Agreement, BRAZOS TECHNOLOGY agrees to provide maintenance and support services for the Covered Software operating at the site(s) and on the hardware configurations listed in Exhibit A ("Maintenance Services"). Unless specifically listed in Exhibit A, Section II, Covered Software does not include hardware vendor operating systems and other system software, Licensee -developed software, and third -party software (except any third party software embedded in the Covered Software). III. DESCRIPTION OF MAINTENANCE SERVICES A. Support Services. During the term of this Agreement, BRAZOS TECHNOLOGY will provide the services described herein so as to maintain the Covered Software in Brazos Technology Maintenance Agreement Page 1 of 11 CONFIDENTIAL INFORMATION R-- et- Av•13-(ok-3 ir)brazos technology v1.1 good working order, keeping it free from material defects so that the Covered Software shall function properly and in accordance with the accepted level of performance as set forth in the License Agreement. (1) Service Response. BRAZOS TECHNOLOGY will make available to Licensee a telephone number (the "Support Center HOTLINE") for Licensee to call requesting service of the Covered Software. The Support Center HOTLINE operates 24 hours per day, 365 days per year. This includes weekends and legal holidays. The HOTLINE can also be used to notify BRAZOS TECHNOLOGY of problems associated with the Covered Software and related documentation. B. Remedial Support. Upon receipt by BRAZOS TECHNOLOGY of notice from Licensee through the Support Center HOTLINE of an error, defect, malfunction or nonconformity in the Covered Software, BRAZOS TECHNOLOGY shall respond as provided below: Severity 1: Produces an emergency situation in which the Covered Software is inoperable, produces incorrect results, or fails catastrophically. RESPONSE: BRAZOS TECHNOLOGY will provide a response by a qualified member of its staff to begin to diagnose and to correct a Severity 1 problem as soon as reasonably possible, but in any event a response via telephone will be provided within one (1) hour. BRAZOS TECHNOLOGY will continue to provide best efforts to resolve Severity 1 problems in Tess than forty-eight (48) hours. The resolution will be delivered to Licensee as a work -around or as an emergency software fix. If BRAZOS TECHNOLOGY delivers an acceptable work -around, the severity classification will drop to a Severity 2. Severity 2: Produces a detrimental situation in which performance (throughput or response) of the Covered Software degrades substantially under reasonable loads, such that there is a severe impact on use; the Covered Software is usable, but materially incomplete; one or more mainline functions or commands is inoperable; or the use is otherwise significantly impacted. RESPONSE: BRAZOS TECHNOLOGY will provide a response by a qualified member of its staff to begin to diagnose and to correct a Severity 2 problem as soon as reasonable possible, but in any event a response via telephone will be provided within four (4) hours. BRAZOS TECHNOLOGY will exercise best efforts to resolve Severity 2 problems within five (5) days. The resolution will be delivered to Licensee in the same format as Severity 1 problems. If BRAZOS TECHNOLOGY delivers an acceptable work -around for a Severity 2 problem, the severity classification will drop to a Severity 3. Severity 3: Produces an inconvenient situation in which the Covered Software is Brazos Technology Maintenance Agreement Page 2 of 11 CONFIDENTIAL INFORMATION )brazos technology v1.1 usable, but does not provide a function in the most convenient or expeditious manner, and the user suffers little or no significant impact. RESPONSE: BRAZOS TECHNOLOGY will exercise best efforts to resolve Severity 3 problems in the next maintenance release. Severity 4: Produces a noticeable situation in which the use is affected in some way which is reasonably correctable by a documentation change or by a future, regular release from BRAZOS TECHNOLOGY. RESPONSE: BRAZOS TECHNOLOGY will provide, as agreed by the parties, a fix or fixes for Severity 4 problems in future maintenance releases. C. Maintenance Services. During the term of this Agreement, BRAZOS TECHNOLOGY will maintain the Covered Software by providing software updates and enhancements to Licensee as the same are offered by BRAZOS TECHNOLOGY to its licensees of the Covered Software under maintenance generally ("Updates"). All software updates and enhancements provided to Licensee by BRAZOS TECHNOLOGY pursuant to the terms of this Agreement shall be subject to the terms and conditions of the License Agreement between the parties. Updates will be provided on an as -available basis and include the items listed below: (1) Bug fixes; (2) Enhancements to market data service software provided by BRAZOS TECHNOLOGY to keep current with changes in market data services or as BRAZOS TECHNOLOGY makes enhancements; (3) Enhancements to keep current with the current hardware vendor's OS releases, as available from BRAZOS TECHNOLOGY, provided that the current hardware vendor's OS release is both binary and source - compatible with the OS release currently supported by BRAZOS TECHNOLOGY; and (4) Performance enhancements to Covered Software. (5) Updates do not include: (a) Platform extensions including product extensions to (i) different hardware platforms; (ii) different windowing system platforms; (iii) different operating system platforms; and (b) New operating system updates or hardware bios updates. Updates will be provided in machine-readable format and updates to related Brazos Technology Maintenance Agreement Page 3 of 11 CONFIDENTIAL INFORMATION )brazos technology vti documentation will be provided in hard copy form. All such deliveries shall be made electronically to the installed computers automatically during a sync process. Licensee agrees to sync each device no less than once per month to obtain any software or configuration changes. Duplication, distribution and installation of documentation updates are the responsibility of Licensee. If requested, BRAZOS TECHNOLOGY will provide on-site assistance in the installation of Updates on a time and materials basis, plus expenses. BRAZOS TECHNOLOGY will provide support services for previous releases for a minimum period of six (6) months following the general availability of a new release or software update. After this time, BRAZOS TECHNOLOGY shall have no further responsibility for supporting and maintaining the prior releases. BRAZOS TECHNOLOGY assumes no responsibility for the correctness of, performance of, or any resulting incompatibilities with, current or future releases of the Covered Software if the Licensee has made changes to the system hardware/software configuration or modifications to any supplied source code which changes effect the performance of the Covered Software and were made without prior notification and written approval by BRAZOS TECHNOLOGY. BRAZOS TECHNOLOGY assumes no responsibility for the operation or performance of any Licensee -written or third -party application. D. Services Not Included. Maintenance Services do not include any of the following: (1) custom programming services; (2) on-site support, including installation of hardware or software; (3) support of any software not Covered Software; (4) training; or (5) out-of-pocket and reasonable expenses, including hardware and related supplies. IV. ON-SITE SUPPORT As requested by Licensee, and upon reasonable notice and approval by BRAZOS TECHNOLOGY, BRAZOS TECHNOLOGY shall maintain personnel at any of the covered Sites. On-site personnel will perform ongoing system administration, monitoring, reconfiguration and tuning, problem diagnosis, and resolution, and interfacing with Licensee personnel on production system issues, to the extent possible during normal business hours. These personnel shall also be responsible for the installation of new BRAZOS TECHNOLOGY software releases on the production system and the distribution of documentation updates. In addition, on-site personnel will provide training to Licensee personnel on the operation and administration of the Covered Software as time permits. V. TIME AND MATERIALS SERVICES A. For Non-BRAZOS TECHNOLOGY Problems. In the event that Licensee notifies BRAZOS TECHNOLOGY of a problem experienced by Licensee in Brazos Technology Maintenance Agreement Page 4 of 11 CONFIDENTIAL INFORMATION )brazos technology connection with the operation of the Covered Software, BRAZOS TECHNOLOGY shall respond as provided in Section III.B., above. If the cause of such problem is not an error, defect or nonconformity in the Covered Software, Licensee shall compensate BRAZOS TECHNOLOGY for all work performed by BRAZOS TECHNOLOGY in connection therewith, on a time and materials basis at Brazos Technology's then current standard rates, unless otherwise agreed by the parties in writing at the time, plus expenses. Expenses for travel and travel - related expenses and individual expenses in excess of US$500 require the prior approval of Licensee. v1.1 B. For Non-BRAZOS TECHNOLOGY Software. Upon request and reasonable notice from Licensee, BRAZOS TECHNOLOGY will provide assistance in the installation of non-BRAZOS TECHNOLOGY software on a time and materials basis, plus expenses. Non-BRAZOS TECHNOLOGY software consists of any software not specifically listed in Exhibit A, Section II, including the following: 1. New releases and updates to hardware vendor operating systems and other system software not listed in Exhibit A; 2. Licensee -developed software; and 3. Third -party software (except third party software embedded in the Covered Software). VII. ACCESS Software Maintenance is conditioned upon provision by Licensee to BRAZOS TECHNOLOGY of reasonable appropriate access to the system(s) running the Covered Software, including, but not limited to, passwords, system data, file transfer capabilities, and remote log -in -capabilities. BRAZOS TECHNOLOGY will maintain security of the system and use such access only for the purposes of this Agreement and will comply with Licensee standard security procedures. Information accessed by BRAZOS TECHNOLOGY agents or employees as a result of accessing Licensee system shall be deemed confidential information pursuant to the terms of the Software License Agreement executed concurrently between the parties hereto. Licensee shall also use commercially reasonable efforts to provide an active voice telephone line at each site which is available continuously when required for support access. VIII. PROBLEM REPORTING AND TRACKING PROCEDURES Licensee may use the services described herein only by making reference to the authorized support Agreement number. All such reports and requests will be made through the authorized individuals (up to two [2] per site), designated by Licensee in Exhibit B, who may be changed by Licensee from time to time by written notice to Brazos Technology Maintenance Agreement Page 5 of 11 CONFIDENTIAL INFORMATION brazos technology v1.1 BRAZOS TECHNOLOGY. A twenty-four (24) hour Support Center HOTLINE is provided for problem reporting outside of normal business hours. IX. FEES A. Maintenance Fees. Fees for Maintenance Services provided under this Agreement are contained in Exhibit C. Any time a site or software package is added or deleted from Exhibit A, BRAZOS TECHNOLOGY will automatically adjust and/or amend Exhibit A and Exhibit C accordingly. BRAZOS TECHNOLOGY will also perform a bi-annual audit of all sections in Exhibit A. If changes have occurred, BRAZOS TECHNOLOGY will adjust and/or amend Exhibit A and Exhibit C, and maintenance fees will be adjusted accordingly. Rates will be reviewed and adjusted accordingly when another site is added and/or the workstation/server base increases (i.e., added equipment and/or installed software) and/or software to be supported exceeds the Covered Software. B. Expenses. Licensee agrees to reimburse BRAZOS TECHNOLOGY for reasonable expenses related to the performance of services. Expenses may include, but are not limited to, charges for materials, freight, travel (including lodging and associated expenses), printing and documentation, and other out-of-pocket expenses reasonably required for performance. Expenses for travel and travel -related expenses and individual expenses in excess of US$500 require the prior approval of Licensee. X. PAYMENT A. Maintenance fees and fees for on-site support, if applicable, will be invoiced annually, thirty (30) days in advance of the year. XI. EXCLUSION OF LIABILITY BRAZOS TECHNOLOGY MAKES AND LICENSEE RECEIVES NO WARRANTY EXPRESS OR IMPLIED AND THERE IS EXPRESSLY EXCLUDED ALL WARRANTIES OF MERCHANTIBILITY AND FITNESS FOR A PARTICULAR PURPOSE. LICENSEE ACKNOWLEDGES AND AGREES THAT THE MAINTENANCE FEES AND OTHER CHARGES WHICH BRAZOS TECHNOLOGY IS CHARGING UNDER THIS AGREEMENT DO NOT INCLUDE ANY CONSIDERATION FOR ASSUMPTION BY BRAZOS TECHNOLOGY OF THE RISK OF LICENSEE CONSEQUENTIAL OR INCIDENTAL DAMAGES OR OF UNLIMITED DIRECT DAMAGES. ACCORDINGLY, BRAZOS TECHNOLOGY SHALL HAVE NO LIABILITY WITH RESPECT TO ITS OBLIGATIONS UNDER THIS AGREEMENT FOR CONSEQUENTIAL, EXEMPLARY, OR INCIDENTAL DAMAGES, EVEN IF IT HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. EXCEPT IN THE CASE OF GROSS NEGLIGENCE OR WILFUL MISCONDUCT, IN NO EVENT SHALL BRAZOS TECHNOLOGY BE LIABLE HEREUNDER TO LICENSEE FOR Brazos Technology Maintenance Agreement Page 6 of 11 CONFIDENTIAL INFORMATION tobrazos technology vl.1 CUMULATIVE DIRECT DAMAGES IN ANY AMOUNT GREATER THAN THAT PAID BY LICENSEE TO BRAZOS TECHNOLOGY UNDER THIS AGREEMENT AS A MAINTENANCE FEE FOR THE TWELVE (12) MONTH PERIOD IMMEDIATELY PRECEDING THE ACCRUAL OF THE CAUSE OF ACTION. XII. General A. Each party acknowledges that it is bound by the terms of this Agreement and further agrees that it is the complete and exclusive statement of the Agreement between the parties, which supersedes and merges all prior proposals, understandings and all other Agreement with respect to software maintenance, oral and written, between the parties relating to this Agreement. This Agreement may not be modified or altered except by a written instrument duly executed by both parties. B. This Agreement and performance hereunder shall be governed by and construed in accordance with the laws of the State of Texas. Any and all proceedings relating to the subject matter hereof shall be maintained in the state or federal courts of Williamson County, Texas, which courts shall have exclusive jurisdiction for such purpose. Each of the parties waives any objection to venue or in personam jurisdiction, provided that service is effective. C. If any provision of this Agreement shall be held to be invalid, illegal or unenforceable, the validity, legality and enforceability of the remaining provisions shall in no way be affected or impaired thereby. D. Neither party may assign, without the prior written consent of the other, its rights, duties or obligations under this Agreement to any other person or entity, in whole or in part. E. The waiver or failure of either party to exercise in any respect any right provided for herein shall not be deemed a waiver of any further right hereunder. XIII. TERM AND TERMINATION The term of this Agreement shall be for one (1) year. Software Maintenance service shall commence upon the expiration of the Warranty Period set forth in the License Agreement and shall remain in effect for the original one-year (1 -year) term and, thereafter, for renewal terms on a year-to-year basis until terminated (i) by Licensee in the event the Covered Software is taken out of service and upon sixty (60) days' notice to BRAZOS TECHNOLOGY; (ii) by either party upon sixty (60) days' notice prior to the expiration of the original one-year (1 -year) or any subsequent one-year (1 - year) renewal term; (iii) by either party upon a default of the other party, such default remaining uncured for thirty (30) days from the date of written notice from the non - defaulting party to the other specifying such default; (iv) upon the bankruptcy or Brazos Technology Maintenance Agreement Page 7 of 11 CONFIDENTIAL INFORMATION )brazos technology v1.1 insolvency of BRAZOS TECHNOLOGY; or (v) the License Agreement is terminated. Upon such termination, BRAZOS TECHNOLOGY shall refund to Licensee a portion of the maintenance fee prorated to reflect the date of termination and neither BRAZOS TECHNOLOGY nor Licensee shall have any further obligations hereunder. IN WITNESS WHEREOF, each party has caused a counterpart of the original of this Agreement to be executed as of the date first written above by its duly authorized representative. CITY OF ROUND ROCK Signed: Print Name: Kfrio Q66ritAiti Title: Mayo Date: A4ptk (5j12- BRAZOS TECHNOLOGY Signed: Print Name: Michael McAleer Title: President Date: t`G /Zq/C'( Brazos Technology Maintenance Agreement Page 8 of 11 CONFIDENTIAL INFORMATION )brazos technology EXHIBIT A -- COVERED SITES, SOFTWARE AND CONFIGURATION A. Covered Sites. This Agreement covers the following Licensee sites: Round Rock Police Department Round Rock Municipal Court B. Covered Software. This Agreement covers the following software components at each site listed in Exhibit A, Section A: Brazos BuiIdIT Website for eCitation processing Brazos RunIT Mobile software eCitation processing for both Symbol MC7Os C. Covered Configuration. v1.1 This Agreement covers the following configuration: Ten (10) workstation/PDA licenses of Covered Software purchased by Licensee. Brazos Technology Maintenance Agreement Page 9 of 11 CONFIDENTIAL INFORMATION )brazos technology EXHIBIT B -- AUTHORIZED LICENSEE CONTACTS For purposes of this Agreement, the following individuals shall be designated per site as the authorized Licensee support contacts: Round Rock PD Address: Name Contact: Title Phone # v1.1 Brazos Technology Maintenance Agreement Page 10 of 11 CONFIDENTIAL INFORMATION brazos technology EXHIBIT C -- SERVICES AND FEES A. Maintenance Fee v1.1 Maintenance Services for the applications and configuration listed in Exhibit A will be included in the software cost for the first year of this Agreement. This fee will be adjusted at each anniversary date of this Agreement to the then current pricing. Should additional software be licensed and installed at the Covered Site(s), the fee will be adjusted to reflect the additional software. Brazos Technology Maintenance Agreement Page 11 of 11 CONFIDENTIAL INFORMATION