Software_Maintenance_Agreement_Template.docx

Agreement No. _____ (CCS)

SOFTWARE MAINTENANCE AND SUPPORT AGREEMENT

This Software Maintenance and Support Agreement (“Agreement”) entered into as of _________________ (“Execution Date”) by and between the City of Santa Monica, a municipal corporation, (“City”) and _________________________, a ___________corporation (“Vendor”) is made with reference to the following:

RECITALS:

A. Concurrently with this Agreement, City and Vendor have entered into a Software License Agreement (“License Agreement”) which is incorporated by reference. Pursuant to the License Agreement, the City has become the licensee of software developed by Vendor and listed in Section 1.1, below. The parties intend by this Agreement for Vendor to provide technical software support to the City under the terms and conditions of the License Agreement.

NOW, THEREFORE, it is mutually agreed by and between the undersigned parties as follows:

TERMS AND CONDITIONS

1. Maintenance and Support Service.

1.1 Vendor agrees to provide technical software support services necessary to remedy problems arising from any operational difficulties attributable to the following Software product(s) or under warranty.

[TO BE LISTED]

1.2 Vendor agrees to provide reasonable unlimited Help Desk phone support from 4:00 a.m. to 5:00 p.m. Pacific Time on weekdays except for major holidays.

1.3 Vendor agrees to provide product updates and upgrades applicable to the City’s specific version of the Software within the same operation environment to the products listed in 1(A) at no additional cost.

1.4 In the event that the City encounters an error and/or malfunction whereby the Software does not conform to the description in the Proposal or Users Manual, Vendor will respond in accordance with the following Priority Levels:

1.4.1 A Level “A” Priority shall mean and refer to a software error that renders the entire system inoperable. Vendor shall assign resources within the first hour. Vendor shall continue to work on the problem until the problem is resolved. Average resolution time shall be less than eight (8) hours.

1.4.2 A Level “B” Priority shall mean and refer to the detection of a software error for a system module which seriously impairs system operations, but does not render it “down.” Vendor shall assign resources within four (4) hours and continue to work on the problem until the problem is resolved.

1.4.3 A Level “C” Priority shall mean and refer to a minor problem, but of sufficient severity to warrant correction before the next production software release or service pack. Generally completed within thirty (30) days.

1.4.4 A Level “D” Priority shall mean and refer to “would likes” and minor problems that do not severely affect the operation of the system and generally will be incorporated in the next production of the software. Vendor reserves the right to determine “would like” relevance to the package and the schedule of the development and release of such items.

2. Proprietary Rights. City acknowledges and agrees that corrected Software and associated documentation remain the Property of the Vendor and constitute a trade secret of said software licensor, except for City data.

3. Access to Data and Computer. City shall, at its own expense, provide VPN access as needed for Vendor use in providing support services. Vendor shall at all times have 24 hour/day, 7 days per week access to provide technical support services.

4. Term of Agreement. This Agreement shall be operative from 90 days from when the City “goes live” with the software, for a period of one calendar year (365 days) thereafter. This Agreement may be renewed by the City at its sole option for additional one year terms.

5. Fees and Charges. The fee for the maintenance and support services provided for herein shall be _______ per year, payable in advance of each one year period.

6. Costs Not Included In This Agreement. If Vendor provides services to City outside the services contracted herein, City agrees to pay Vendor at Vendor’s then current standard rates for time and material, and travel expenses in an amount to be preapproved by City in advance in writing.

7. Services Not Covered. Vendor will not provide any additional services to the City during the term of this Agreement; including but not limited to:

7.1 Vendor will not support application software that is running on outdated operating systems. Distribution of updates and enhancements, telephone support and functional corrections will only be made available for current operating systems. The City is responsible for maintaining compliance with the “industry standard” version of the relevant operating system. City should determine that an upgraded version of a component part of the software product (Oracle for example) has been certified prior to installation.

7.2 Vendor is not responsible for loss of data due to lack of sufficient backup files. The City is responsible for following standard backup procedures to insure data integrity.

7.3 Custom programming or the development of specialized routines not associated with Sections 1.1, 1.2, 1.3, and 1.4 are not covered under this Agreement.

7.4 Data conversions and problems associated with data conversions are not covered under this Agreement. Vendor will assist the City through the Help Desk for workstation installation only if other workstations are already installed and working. The Help Desk will not install or upgrade server software or database client software on a “first” machine.

7.5 Any services not covered in paragraph 6 above.

8. Insurance. Prior to commencing work, Vendor must procure, maintain and pay for insurance against claims for injuries to persons or damage to property that may arise from or in connection with the performance of the Services by Vendor or Vendor’s agents, representatives, employees or subconsultants for the duration of this Agreement. ABC must obtain insurance that, at a minimum, meets the requirements for insurance set forth in Exhibit C, Insurance Requirements and Verifications.

9. Indemnification. During the period any portion of the Software is in transit or until successful installation, Vendor shall have sole responsibility for all risk of loss or damage to the Software. Vendor shall indemnify, defend and hold harmless City from and against any and all claims, damages, losses, expenses or liabilities, including, but not limited to, reasonable attorneys’ fees, arising out of or resulting from the following: (i) Vendor’s performance of or failure to perform its obligations under this Agreement; (ii) arising from the willful misconduct or the negligent acts, errors or omissions of Vendor, its officers, agents, and employees in the performance of its services under this Agreement, including, but not limited to the installation of the Software and the training hereunder; and (iii) any patent, copyright and other infringement claim by any third party in connection with the Licensed Product.

10. Notices. All notices, demands, requests or approvals to be given under this Agreement, shall be given in writing and shall be deemed served when delivered personally or on the third business day after the deposit thereof in the United States mail, postage prepaid, registered or certified, addressed as hereinafter provided.

10.1 All notices, demands, requests or approvals to the City:

<Name of Division or Department> City of Santa Monica <Division or Department Address> Santa Monica, California 90401 Attention: <Name of City Contact> Re: Agreement No. <Number>

10.2 All notices, demands, requests or approvals to ABC:

ABC

1234 Main Street Anytown, USA Attention: ABC Person <ABC’s Contact Information> Re: Agreement No. <Number>

11. Costs of Litigation. If any legal action or proceeding is necessary to enforce any provision of this Agreement or for breach of this Agreement, the prevailing party shall be entitled to receive from the opposing party all costs and expenses and such amount as may be adjudged to be reasonable attorneys’ fees. The prevailing party’s attorneys’ fees shall be paid whether or not the action is prosecuted to judgment. The prevailing party shall be entitled to recover an amount equal to the fair market value of legal services provided by attorneys employed by the prevailing party as well as any attorneys’ fees paid to outside attorneys in connection with the action.

12. Assignment. Vendor shall not assign, hypothecate or transfer this Agreement or any interest therein directly or indirectly, by operation of law or otherwise without the prior written consent of City, which may be withheld at the City’s sole discretion. Any attempt to do so without the City’s consent shall be null and void, and any assignee, sublessee, hypothecatee or transferee shall acquire no right or interest by reason of such attempted assignment, sublease, hypothecation or transfer.

13. Termination.

13.1. This Agreement may be terminated by either party at the end of its initial term or upon sixty (60) days prior written notice to the other party.

13.2. This Agreement shall be terminated without refund upon the City’s default of the terms of the Software License Agreement.

13.3. This Agreement may be terminated at any time by Vendor in the event of any failure on the part of City to pay the maintenance fee provided for hereunder after thirty (30) days notice that the maintenance fee is delinquent.

14. Delays. Vendor shall not be liable for any delay in performance directly or indirectly resulting from acts of City, its agents, employees or subcontractors, or causes beyond the control of Vendor, including, but not limited to, acts of God, acts of a public enemy, acts of the United States or the District of Columbia, any State or Territory of the United States, or any of their political subdivisions; fire, flood, epidemics, quarantine restrictions, strikes, civil commotions or revolution; freight embargoes; unusually severe weather condition; or default of Vendor’s subcontractors or suppliers.

15. Entire Agreement. This Agreement, in addition to the Software License Agreement, constitutes the entire agreement of the parties and the terms and conditions stated herein supersede all prior agreements between the parties relating to the subject matter of this Agreement.

16. Execution in Counterparts. This Agreement may be executed in counterparts with the same effect as if both parties hereto had executed the same document. All counterparts shall be construed together and shall constitute a single Agreement. Any signature to this Agreement transmitted electronically through DocuSign or PDF shall be deemed an original signature and be binding upon the parties hereto (it being agreed that such electronic signature shall have the same force and effect as an original signature).

17. Modifications to Agreement. This Agreement may be amended by the parties only by a written agreement between the parties and approved as to form by the City Attorney.

18. Governing Law. This Agreement shall be governed by and construed in accordance with the laws of the State of California.

19. Limited Warranty.

19.1. Vendor warrants the Software Product shall be free from defects in materials and workmanship for ninety (90) calendar days commencing from system acceptance of the Software Product as set forth in the License Agreement. During this period, the Software Product is warranted to conform to the specifications as stated in the RFP and RFP response.

19.2. The Software Products shall continue to perform in accordance with Vendor’s most current documentation, which may be modified from time to time, so long as the City remains a subscriber to the Maintenance Agreement between the parties.

19.3. There is no program code, other than as specified in Vendor’s documentation, that will restrict the City’s use of the Licensed Product upon payment in full.

19.4. If Vendor makes any modifications or enhancements to the Licensed Products, Vendor shall deliver to the Escrow Agent identified in the Escrow Agreement by and between the parties such modifications or enhancements, including, but not limited to, software language source codes, object libraries and supporting documentation for such modifications and enhancements, so long as the City is a subscriber to the Maintenance Agreement between the parties and party to an escrow agreement.

19.5. Any modification or enhancement of the Licensed Product shall satisfy the warranties and conditions set forth in this Section, so long as the City is a subscriber to the Maintenance Agreement between the parties.

19.6. The Software Products will be free of any errors which severely effect the operation of the system or keep the system from production use.

In witness whereof, the parties have caused this Agreement to be executed the day and year first above written.

ATTEST:

DENISE ANDERSON-WARREN

City Clerk

APPROVED AS TO FORM:

LANE DILG

City Attorney

CITY OF SANTA MONICA,

a municipal corporation

By: ______________________________

ABC Corporation

#VENDOR

By: ________________________________

- 5 – Rev. March 2025