Okaloosa County BOCC — 2013 meeting #1182 (date undetermined) — TriTechSoftwareServicesContract — reading text

Microsoft to coordinate the resolution. Notwithstanding the above, TriTech is not and shall not be a party to such third party maintenance agreements nor shall TriTech have any obligation or liability thereunder. 9.0 LIMITATION OF LIABILITY 9.1 The total liability of TriTech for any claim or damage arising under this Agreement or renewals thereof, whether in contract, tort, by way of indemnification or under statute shall be limited to (@) direct damages which shall not exceed the Software Support fees paid under this Agreement by Client to TriTech for the twelve (12) month term during which the cause of action for such claim or damage arose or (ii) in the case of bodily injury or property damage for which defense and indemnity coverage is provided by TriTech’s insurance carrier(s), the coverage limits of such insurance. 92 IN NO EVENT SHALL TRITECH BE LIABLE, WHETHER IN CONTRACT OR IN TORT, FOR LOST PROFITS, LOST SAVINGS, LOST DATA, LOST OR DAMAGED SOFTWARE, OR ANY OTHER CONSEQUENTIAL OR INCIDENTAL DAMAGES ARISING OUT OF THE USE OR NON-USE OF THE TRITECH SOFTWARE, OR OTHERWISE RELATED TO THIS AGREEMENT, REGARDLESS OF WHETHER TRITECH HAD KNOWLEDGE OF THE POSSIBILITY OF ANY SUCH LOSS OR DAMAGE. 10.0 DISPUTE RESOLUTION 10.1 The parties desire to resolve certain disputes, controversies and claims arising out of this Agreement without litigation. Accordingly, the parties agree to use the following alternative procedure as their sole remedy with respect to any dispute, controversy or claim arising from or relating to this Agreement or its breach. The term “Arbitrable Dispute” means any dispute, controversy or claim arising under or related to this Agreement. 10.2 At the written request of a party, each party shall appoint a knowledgeable, responsible representative to meet and negotiate in good faith to resolve any Arbitrable Dispute arising under this Agreement. The parties intend that these negotiations be conducted primarily by non-lawyer, business representatives. (However, the parties may be assisted by legal counsel in such negotiations.) The discussions shall be left to the discretion of the representatives. Upon Okaloosa County Department of Public Safety Software Support Agreement Copyright © 2013 TriTech Software Systems — Confidential & Proprietary Vision and Inform Applications Unpublished: Rights reserved under the copyright laws of the United States Page 10 of 21 their mutual agreement, the representatives may utilize other alternative dispute resolution procedures such as mediation to assist in the negotiations. Discussions and correspondence among the representatives for purposes of these negotiations shall be treated as confidential information developed for purposes of settlement, shall be exempt from discovery and production, and shall not be admissible in the arbitration described below or in any lawsuit without the concurrence of all parties. Documents identified in or provided with such communications, which are not prepared for purposes of the negotiations, are not so exempted, may be produced in discovery, and may, if otherwise admissible, be admitted in evidence in the arbitration or lawsuit. 10.3 If the negotiations described above do not resolve the Arbitrable Dispute within sixty (60) days of the initial written request, the Arbitrable Dispute shall be submitted to mediation under the Commercial Mediation Rules of the American Arbitration Association (the “Association”). If the Arbitrable Dispute is not completely resolved in such mediation, any remaining issues shall be submitted to binding arbitration by a single arbitrator pursuant to the Commercial Arbitration Rules of the Association. A party may demand such arbitration in accordance with the procedures set out in those rules. The arbitration hearing shall (unless otherwise agreed by the parties) be held in the county of the principal place of business of the party against whom the demand for arbitration is filed. The arbitrator shall control the scheduling so as to process the matter expeditiously. The arbitrator shall rule on the Arbitrable Dispute by issuing a reasoned decision. In no event shall the arbitrator have the authority to make any award that provides for punitive or exemplary damages. Notwithstanding anything to the contrary herein, the arbitrator shall have the power, concurrent with a court of competent jurisdiction, to award provisional relief such as a temporary restraining order or a preliminary injunction. The times specified in this Section may be extended upon mutual agreement of the parties or by the arbitrator upon a showing of good cause. 10.4 The mediator and/or arbitrator shall be selected from the national panel of arbitrators of the American Arbitration Association with expertise in computer law and technology. Any court having jurisdiction over the matter may enter a judgment upon the award of the arbitrator. Service of a petition to confirm the arbitration award may be made by United States Mail, postage prepaid, or by any regularly conducted commercial express mail service, to the attorney for the party or, if not so represented, to the party at the address set forth herein, or to the party’s last-known business address. 10.5 The arbitrator shall have the power at the arbitrator’s discretion to appoint a Special Master or consultant for the purpose of analyzing technical issues and preparing a report to the arbitrator of such analysis, and performing such other tasks as the arbitrator(s) may deem necessary for a fair and proper determination of the issues submitted to arbitration. The costs of the services of such Special Master or consultant shall be shared equally by the parties. 10.6 Each party shail bear its own costs of these procedures. A party secking discovery permitted by the arbitrator shall reimburse the responding party the reasonable out-of-pocket cost of production of documents (to include search time and reproduction time costs). The parties shall initially equally share the administrative fees of the arbitration and the arbitrator’s fees. The Okaloosa County Department of Public Safety Software Support Agreement Copyright © 2013 TriTech Software Systems — Confidential & Proprietary Vision and Inform Applications Unpublished: Rights reserved under the copyright laws of the United States Page 1] of 21 prevailing party shall be entitled to reimbursement of its share of said fees actually paid, as well as to an award of reasonable attorney fees. 10.7. THE PARTIES UNDERSTAND AND ACKNOWLEDGE THAT BY AGREEING TO THIS ARBITRATION PROVISION, THEY ARE GIVING UP THE RIGHT TO TRIAL BY JURY WITH RESPECT TO THIS AGREEMENT AND THEY HEREBY WAIVE SUCH RIGHT. 11.0 SEVERABILITY If any term, clause, sentence, paragraph, article, subsection, section, provision, condition or covenant of this Agreement is held to be invalid or unenforceable, for any reason, it shall not affect, impair, invalidate or nullify the remainder of this Agreement, but the effect thereof shall be confined to the term, clause, sentence, paragraph, article, subsection, section, provision, condition or covenant of this Agreement so adjudged to be invalid or unenforceable. 12.0 FORCE MAJEURE/EXCUSABLE DELAY Neither party shall be responsible for failure to fulfill its obligations hereunder or liable for damages resulting from delay in performance as a result of war, fire, strike, riot or insurrection, natural disaster, delay of carriers, governmental order or regulation, complete or partial shutdown of plant, unavailability of Equipment or software from suppliers, default of a subcontractor or vendor to the party if such default arises out of causes beyond the reasonable control of such subcontractor or vendor, the acts or omissions of the other party, or its officers, directors, employees, agents, contractors, or elected officials, and/or other occurrences beyond the party’s reasonable control (“Excusable Delay” hereunder). In the event of such Excusable Delay, performance shall be extended on a day for day basis or as otherwise reasonably necessary to compensate for such delay. 13.0 CONSTRUCTION AND HEADINGS The division of this Agreement into sections and the use of headings of sections and subsections are for convenient reference only and shall not be deemed to limit, construe, affect, modify, or alter the meaning of such sections or subsections. 14.0 WAIVER 14.1 The failure or delay of any party to enforce at any time or any period of time any of the provisions of this Agreement shall not constitute a present or future waiver of such provisions nor the right of either party to enforce each and every provision. 14.2. No term or provision hereof shall be deemed waived and no breach excused unless such waiver or consent shall be in writing and signed by the party claimed to have waived or consented. Any consent by any party to, or waiver of, a breach by the other, whether Okaloosa County Department of Public Safety Software Support Agreement Copyright © 2013 TriTech Software Systems ~ Confidential & Proprietary Vision and Inform Applications Unpublished: Rights reserved under the copyright laws of the United States Page 12 of 21 expressed or implied, shall not constitute a consent to, waiver of or excuse for any other, different or subsequent breach. 15.0 ENTIRE AGREEMENT This Agreement and its Addenda or Amendment(s) represent the entire agreement between the parties hereto and a final expression of their agreements with respect to the subject matter of this Agreement and supersedes all prior written agreements, oral agreements, representations, understandings or negotiations with respect to the matters covered by this Agreement. 16.0 APPLICABLE LAW Except to the extent that this Agreement is governed by the laws of the United States, this Agreement shall be governed, interpreted and enforced in accordance with the laws of the State of Florida without regard to its conflict of law provisions and not including the United Nations Convention on Contracts for the International Sale of Goods if such convention would otherwise be applicable. 17.0 ASSIGNMENT TriTech may assign this Agreement entirely in its discretion upon the express written assumption of the obligations hereunder by the assignee. 18.0 NOTICES All notices required to be given under this Agreement shall be made in writing by (i) first-class mail, postage prepaid, certified, return receipt, (ii) by regularly scheduled overnight delivery, (iii) by facsimile or e-mail followed immediately by first-class mail, or (iv) by personal delivery, to the address set forth below, or such other address as provided in writing. Such notices shall be deemed given three (3) days after mailing a notice or one (1) day after overnight delivery thereof. To Client: To TriTech: Okaloosa County Department of Public Safety TriTech Software Systems 90 College Blvd. East 9477 Waples Street, Ste. 100 Niceville, FL 32578 San Diego, CA 92121 Attn: Daniel Dunlap Attn: Christopher D. Maloney 911 Communications Division Chief President and CEO 19.0 GENERAL TERMS 19.1. This Agreement shall be binding on and shail inure to the benefit of the heirs, executors, administrators, successors and assigns of the parties hereto, but nothing in this Okaloosa County Department of Public Safety Software Support Agreement Copyright © 2013 TriTech Software Systems ~ Confidential & Proprietary Vision and Inform Applications Unpublished: Rights reserved under the copyright laws of the United States Page 13 of 21 paragraph shall be construed as a consent to any assignment of this Agreement by either party except as provided in the ASSIGNMENT section of this Agreement. 19.2 This Agreement shall not become a binding contract until signed by an authorized officer of both parties, and it is effective as of the date so signed. 19.3 This Agreement may be executed in any number of identical counterparts, and each such counterpart shall be deemed