Fort Walton Beach Council agenda — 10-14-03 regular Council agenda — reading text

proper operating environment. SunGard HTE does not warrant that the functions contained in the Licensed Program( s) will meet the Customer' s requirement one hundred twenty (120) day or will operate in the combinations which may be selected for use by the Customer after the other incidental software distributed by SunGard HTE will be on an " AS IS" and " WITH ALL period. Any utility or FAULTS" basis without warranty of any kind either expressed or implied. SunGard HTE shall be responsible only for the Licensed s) and Program( products as and originally supplied by Customer, and for changes made to the Licensed accepted for the consequences of Program( by SunGard HTE' s authorized representatives. SunGard HTE will not be responsible s) attempts at changes or modifications to the products and Licensed Program( s) made by the Customer or any other unauthorized party . s) and SunGard HTE warrants that it has the right to license the SunGard HTE Licensed Program( s) listed in the Supplement( intellectual of third party. SunGard HTE that the SunGard HTE Licensed Program( s) does not infringe any property any reasonable fees, and liability arising ftom any claim of agrees to indemnify Customer against expenses, including attorneys' related SunGard HTE Licensed Program( s) provided SunGard HTE shall have the right to control the defense inftingement to or settlement of any such claim. If use of the SunGard HTE Licensed Program( s) by the Customer is enjoined by any of License for the infringement proceeding, SunGard HTE shall, if possible, obtain without unreasonable expense the right is SunGard HTE shall refund to the Customer Customer to use the SunGard HTE Licensed if Program( s) or that not possible, the license fee( s) paid under this Supplement for the particular Licensed Program( s) that is determined to be infTinging. SunGard HTE does not make any representations or warranties with respect to intellectual property rights of any third party and shall not be construed products. Any such representations or warranties are made solely by the Vendor of such products, as a warranty with respect to infringement and the like by SunGard HTE. TO THE SUNGARD HTE MAKES NO WARRANTIES, OTHER THAN AS STATED HEREIN, WITH RESPECT OR IMPLIED, INCLUDING ANY IMPLIED PARTICULAR LICENSED PROGRAM( S), EITHER EXPRESSED WARRANTY OF MERCHANTABILITY OR OF FITNESS FOR A PARTICULAR PURPOSE. Limitation of Liability death To the extent permitted by law, and to the extent provided for under this Supplement, for claims related to bodily injury, the Customer and damage to real property and tangible personal property, SunGard HTE shall indemnify and hold harmless out of from and against all direct damages and costs of any kind, including but not limited to reasonable attorney fees, arising FTWB- 20030300- Schedule A.doc SunGard HTE Schedule A 2 of 4 Revised September 17, 2003 Ver. 04/2/ 03 orresulting from any negligent acts, or neglig 1missions of SunGard HTE, regardless of wh"....ler such claims are caused in indemnified hereunder, but 0. the extent that the Customer is legally liable for such damages and costs. In part by any party n,,_ no event, however, will SunGard HTE be liable for any consequential damages, including lost profits, savings or reprocurement costs, even if SunGard HTE has been advised of their possibility. claims for personal injury or Except for SunGard HTE' s obligations to indemnify the Customer under infringement actions, and caused by SunGard HTE' negligence as noted above, SunGard HTE' s liability damages to real or tangible personal property s for damages to the Customer for cause whatsoever under this Supplement, regardless of the form of action, is limited to the any total amount of fees paid by Customer under this Supplement for SunGard HTE Licensed Program( s) and services, not including any fees associated with SunGard HTE project management and related out- of-pocket expenses. the In situations involving performance or nonperformance of Licensed Program( s) furnished under this Supplement, Customer' s remedy is ( I) the correction by SunGard HTE of Licensed Program defects, or ( 2) if, after repeated efforts, SunGard HTE is unable to make the Licensed Program( s) operate as warranted, the Customer shall be entitled to recover actual, direct damages to the limits set forth in this section upon the return or complete destruction of the Licensed Program( s) for which damages are sought. Modifications and Modification Retrofit Maintenance Modifications if applicable, will be controlled by the SunGard HTE SCR form, which will be prepared for the Customer by the SunGard HTEProduct Manager responsible for that module. There will be a Two Hundred Fifty dollar ($ 250.00) non- refundable fee for processing of each SCR preparation the Customer. SunGard HTE will proceed on the SCR requested by when the signed SCR is returned with the Customer' s authorization along with 50% payment, which includes the non- r,~ funda'Q.~e_ ocessing fee. The fmal 50% payment is due upon completion. l2.~ Customer is responsible for the cost for SunGard HTE to retrofit it's modifications into new releases. Provided Customer exercises it's to have SunGard HTE maintain option Modification Retrofit objects and pays SunGard HTE' s annual specific Modification Retrofit Maintenance fee, support for each modified object shall be invoiced annually. The current annual maintenance fee of$ lOO. OO per object is subject to change. Scheduled Resource Changes sessions , Customer acknowledges that SunGard HTE makes every effort to schedule training and project management in advance to make effective of SunGard HTE' s personnel and to obtain favorable prices for travel and living. sufficiently use sessions canceled at the Accordingly, the following cancellation charges apply to training and on- site project management request of Customer: Cancellation within seven ( 7) of start date, Customer pays fifty percent ( 50%) of the total price for days the training or on- site project management; cancellation within three ( 3) days of start date, Customer is responsible for entire Customer shall be obligated to reimburse price of the training or on- site project management. In, addition to the foregoing, SunGard HTE for any non- refundable expenses incurred by SunGard HTE for travel expenses. Notwithstanding the above, SunGard HTE will endeavor to reschedule SunGard HTE in personnelorder to mitigate Customer' s costs and expenses under this paragraph. To the extent SunGard HTE is successful in such rescheduling, Customer' s payment obligations shall be reduced. Third Party Software and Hardware Unless otherwise provided for herein, warranty and maintenance offerings bySunGard HTE for its Licensed Program( do s) not SunGard HTE does not make apply to any third party hardware or third party software supplied under this Supplement. any warranties nor provide any source code for any non- SunGard HTE products" unless otherwise provided herein. The return and refund policy of each individual third party hardware or third party software supplier shall prevail unless otherwise provided herein. Source Code Escrow code Unless otherwise provided herein, the Licensed ProgramCs) are provided in and may be used in machine-readable object form only. HTE offers the Customer, through a third party escrow agent, a Source Code Escrow Agreement that provides for the of certain release events, such release of the source code version of the Licensed Program( s) from escrow upon occurrence as HTE's failure to provide required maintenance services as agreed. Publication but shall SunGard HTE reserves the right to publish certain information regarding this Supplement. Publication may include, not be limited to, using Customer' s name in a release announcing this Supplement and listing Customer' s name on press