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#21-008-NS (Avail Technologies, Inc.) G"JOIL TECHNOLOGIES, INC. Collier Area Transit (CAT) February 1, 2021 to January 31, 2022 Maintenance and Support Agreement THIS AGREEMENT("AGREEMENT"), by and between Collier County, a political subdivision of the State of Florida, operating as Collier Area Transit (CAT), located at 3299 Tamiami Trail East, Suite 103, Naples, FL 34112, hereinafter "COUNTY", and AVAIL TECHNOLOGIES, INC., a corporation, located at 1960 Old Gatesburg Road, suite 200,State College, PA 16803, hereinafter called "AVAIL", collectively referred to as the "PARTIES", shall become effective the date of System Acceptance. WHEREAS, AVAIL has licensed to the COUNTY certain systems as specified in the Software License Agreement, attached hereto as"Attachment 1," of near or even date herewith (the "License Agreement") and COUNTY wishes to have AVAIL perform maintenance services on the software and associated hardware of the licensed systems pursuant to the following terms and conditions and the terms and conditions of the License Agreement: 1. Description and Term A. Systems Covered I. The materials covered in this Agreement are the hardware and software required for deployment of the AVAIL Intelligent Transportation System (ITS).The software which includes AVAIL's myAvail Software Suite ("Software"), is defined and more fully described in, and subject to, the signed Software License Agreement, as updated with any improvements or modifications furnished to COUNTY hereunder; B. Sites I. 3299 Tamiami Trail East, Suite 103, Naples, FL 34112 C. Term I. The term shall be for one (1) year, commencing upon the date listed in "D" below. The Software License Agreement shall run congruously with this Agreement and shall be subject to the periods of service listed in "D" below. The Agreement shall be reviewed by both Parties for any renewal of term at least sixty(60) days prior to the expiration of the current term. D. Defined Inclusive Period of Service: I. February 1, 2021 through January 31, 2022 2. Definitions A. "Specifications" shall mean the documentation to which the Software must conform as set forth in the license Agreement; B. "Error" shall mean a material and reproducible failure of the Software to function in conformity with the Specifications. availtec.com 1 814-234-3394 11960 Old Gatesburg Rd., Suite 200 State College, PA 16803 C'4c Collier Area Transit (CAT) February 1, 2021 to January 31, 2022 C. "Additional Services" shall mean any service that is not covered by this agreement; D. "Hosted Support" (as elected under services in Figure 1) shall mean AVAIL will house, implement, maintain and backup the customer fixed-end system on AVAIL owned (or leased) equipment for the duration of the contract period. E. "Anniversary" shall mean the beginning date of the support period and the annual occurrence of that date for the duration of the defined support period. F. "Current Support Period" shall mean the inclusive dates of support as provided in Sec 1.c 3. Customer Support Plans (Please see Figure 1) A. Customer has elected the level of support as indicated in Figure 1 4. AVAIL Responsibilities During the term of this Agreement, AVAIL shall provide the following support measures: A. The Standard Level of Support of which there are two problem resolution standards (See Figure 1): I. General Provision: a. Telephone hot line access for problem and error reporting and response of diagnostic services; b. Ability to initiate support requests via e-mail to support@Availtec.com c. AVAIL shall staff their Call Center during regular business hours see Figure 1. In case of a support call, AVAIL will want to collect the pertinent information as soon as practical. In the event that AVAIL cannot answer the initial call, a voicemail service shall be operative as a backup system; II. Routine Care—(as defined in Figure 1) a. AVAIL shall respond to the call as stated in Figure 1; b. The problem will be entered into the AVAIL tracking system, entering the Caller's Name, COUNTY Name and Contact Phone Number; c. AVAIL shall keep COUNTY advised of a plan for resolution of the error as soon as practical; d. If the error occurs after AVAIL business hours, the Caller shall still leave a voice message with the same information as listed above. III. Urgent Care—(as defined in Figure 2) a. AVAIL will respond to a call as stated in Figure 2; avid I TECHNOLOGIES, INC. availtec.com 1814-234-3394 11960 Old Gatesburg Rd., Suite 200 StE2OcRRC> 491,8/11581t301/1] 2 Collier Area Transit (CAT) February 1, 2021 to January 31, 2022 b. Upon receipt of the call, the Support Team will immediately begin to assess the error and begin the process of resolving the problem. Resolution shall be conveyed to COUNTY as soon as practical; c. The error will be entered into the AVAIL tracking system: d. On-site response for requests for remedial support and diagnostic repair services in response to shall be pursuant to Section 11.B.VI of this Agreement. IV. System Self-Diagnostics and Self-Healing capabilities a. Through the use of sophisticated software monitoring system, the system will notify the operations staff of potential system degradation and alerts the on-call staff via message 24 hours/7 days a week. b. Through these same techniques, the system has the capability to self-heal processes that have stalled or failed. 5. COUNTY Responsibilities COUNTY shall give AVAIL, their full cooperation to facilitate proper and prompt performance of the Support Services and any additional services that the PARTIES agree. COUNTY shall provide: A. A key technical contact that shall be familiar with the System to provide adequate information and feedback in order to facilitate problem reporting and resolution; B. The key technical contact will be aware of the terms and conditions under which AVAIL Systems provides after hours support: I. Promptly notify AVAIL of any error in the System; II. Provide sufficient information for AVAIL to effectively diagnose errors including a detailed description of the issue in text format, an explanation of what the user was doing when the issue occurred,any error messages that the system returned, screen shot images of the error, the current status of the system, a determination if the system is functional, and a state retrieval, if requested; III. Permit AVAIL to take such reasonable steps as AVAIL shall consider necessary to remedy any errors; IV. Allow AVAIL prompt and reasonable access to: a. The Software and ITS Server system through a Virtual Private Network (VPN) in case of primary server hardware failure and access to other 3rd party systems such as the communications network provider, as described in the IT/IS Vendor Guidelines as presented in the contract. b. COUNTY's physical sites,at the locations specified in the Support Plan of this Maintenance and Support Agreement. OVOIL TECHNOLOGIES, INC. availtec.com 1814-234-3394 11960 Old Gatesburg Rd., Suite 200 StE DcRRC-1049'1,8/i S)1301/1] 3 Collier Area Transit (CAT) February 1, 2021 to January 31, 2022 V. Provide a safe and secure work environment at the site(s) for AVAIL's authorized personnel performing Support Services and additional services on-site. VI. COUNTY shall not permit any person other than authorized AVAIL personnel to make corrections or in any way modify the Software. Any work, repair, replacement, remedial support,emergency support, or correction necessary will be in violation of this provision shall be considered additional services. 6. Software Maintenance AVAIL shall notify and make available to the COUNTY all, Purchased Feature Enhancement and Bug Fixes to the software for the current software license.The nature and extent of the elements to be included or covered in any Enhancement, or Bug Fix shall be determined solely by AVAIL. Purchased Feature Enhancements and Bug Fixes will be made available to the COUNTY at no additional charge other than the costs for additional hardware, configuration, integration,testing,travel and lodging and per diem, provided they are current in their payment for Maintenance and Support fees. In the event the COUNTY has elected not to pay the Maintenance and Support Fees, they may obtain updates of a Purchased Feature Enhancements and Bug Fixes by paying the aggregate annual Maintenance and Support Fees which would otherwise have been due from the date of discontinued Maintenance and Support Services to the date such Purchased Feature Enhancement or Bug Fixes becomes generally available. As soon as practical, AVAIL will provide the COUNTY with information relating to any software New Features during the term of this Agreement. New Feature Purchase shall be negotiated and agreed to in writing, between the PARTIES, prior to any work beginning on the requested task. All efforts shall be made by the COUNTY to provide AVAIL access to the individual Software server through the VPN process. Any New Feature Purchases, Purchased Feature Enhancement and Bug Fixes provided shall be governed by all of the terms and provisions of this agreement. Upon notification, the COUNTY shall have six (6) months from receipt of such notice to authorize AVAIL to deliver the product, provided they are current in their payment for support fees. All New Feature Purchases, Purchased Feature Enhancements, or Bug Fixes provided, shall be considered Software for purposes of the Software License Agreement and this Maintenance and Support Agreement. AVAIL agrees to provide to the COUNTY the elected level of support as defined in Section 3A for the Software and any subsequent upgrades during the full term of this Agreement (including all renewals) through the end of this contract or any subsequent extension of Maintenance and Support Services; provided that the COUNTY has paid the applicable Maintenance and Support Charges hereunder as and when they become due. AVAIL agrees that its failure to continue to provide such support shall constitute a material breach of this Agreement. AVAIL agrees to provide to the COUNTY the Level of Support as stated in Figure 1 for the Software and any subsequent upgrades during the full term of this Agreement (including all renewals)through the end of this contract or any subsequent extension of Maintenance and Support Services; provided that the QVQIL TECHNOLOGIES, INC. availtec.com 1814-234-3394 11960 Old Gatesburg Rd., Suite 200 StC{QOERf@C¢491,'/1/58.1301/1] 4 Collier Area Transit (CAT) February 1, 2021 to January 31, 2022 COUNTY has paid the applicable Support Charges hereunder as and when they become due. AVAIL agrees that its failure to continue to provide such support shall constitute a material breach of this Agreement. 7. Maintenance and Support Services A. The COUNTY shall pay the Maintenance and Support charges set forth, and the COUNTY will receive technical support for the term of this Contract; B. Provided the COUNTY has paid the applicable Maintenance and Support, AVAIL shall support the Hardware and Software as set forth in this Agreement; C. Corrections - For a period of Twelve (12) months following the release of a Purchased Feature Enhancement upgrade,AVAIL will use reasonable efforts to support any previously Release of that Software program. AVAIL shall advise the COUNTY as soon as practical, of the intention to discontinue support services of any version of AVAIL software currently in use by the COUNTY. AVAIL shall also maintain this requirement for the subcontractors they use for this Project; D. AVAIL shall have no obligation to correct problems which are traced to any the COUNTY errors, modifications, enhancements, software or hardware; In the event that AVAIL provides any additional services requested by COUNTY, AVAIL shall invoice for such additional services based upon its then-current time and material rates.COUNTY shall pay all charges for such additional services upon receipt of proper invoice and in compliance with Chapter 218, Fla.Stats., otherwise known as the"Local Government Prompt Payment Act."Any late interest fees shall be pursuant to Section 218.74, Fla.Stat.Charges for additional services may include fees for labor, materials, hardware components, shipping, software, documentation, and/or other products or services and associated expenses, including reasonable travel expenses incurred by AVAIL when providing additional services at COUNTY's request. Additional Maintenance and Support, which shall follow the completion of the one (1) years of support may be extended for an agreed upon timeframe by the PARTIES. The cost would be at AVAIL's then- current standard Maintenance and Support Fees for as long as AVAIL offers such support.The intent is to make payment of the applicable fees in advance of each anniversary of the completion date. If COUNTY purchases Maintenance and Support for any copy of the Software, it must purchase Maintenance and Support for all licenses of such Software unless COUNTY has discontinued the use of certain licensees within the Avail Suite of purchased and installed modules. .... \/MpP�n QVQIL TECHNOLOGIES, INC. availtec.com ! 814-234-3394 11960 Old Gatesburg Rd., Suite 200 St42-0ER.ft 4918/11 31:301/1] 5 Collier Area Transit (CAT) February 1, 2021 to January 31, 2022 8. Travel Expenses Travel expenses shall be reimbursed as per Section 112.061, Fla.Stat.and must be pre-approved in writing by the COUNTY. 9. Confidentiality Confidentiality of information contained in this agreement is subject to the requirements of the Florida Public Records Act, Chapter 119, Fla. Stat., and the Florida Sunshine Law, Chapter 286, Fla. Stat. 10. Maintenance and Support AVAIL represents to COUNTY that all services provided hereunder will be performed in a workmanlike manner. This Maintenance and Support agreement includes the software and hardware listed below for this entire term. If during the duration of this Maintenance and Support Agreement, any software or device of the System were to become obsolete, AVAIL agrees to work with COUNTY to provide a replacement device and to ensure its downward compatibility with the rest of the deployed system. 11. System Support A. AVAIL will provide remote and, if necessary, on-site system support as per Section 11.B.IV,for the term specified in this Agreement, for all software initially provided by AVAIL for sustaining the accepted system configuration; I. Phone and Remote Diagnostic system Support: a. AVAIL will provide consultation to COUNTY's Key Technical Contact to: i. Facilitate remote troubleshooting and solution implementation; ii. Acquire and review data logs for problem identification via remote access line; iii. Provide problem analysis and possible resolution; iv. COUNTY must maintain remote access capability for AVAIL to diagnose reported software and systems problems. Remote access will be via a VPN connection; v. AVAIL can, at COUNTY's request, assist in arranging for service and support of non- warranted components (i.e. LAN interface to the Communications system and Installation / Removal services). AVAIL will not be responsible for the service call or system repair costs. Such costs will be billed to COUNTY. II. Exceptions: a. If it is determined by AVAIL that a system problem was not due to an AVAIL installed component, COUNTY will be responsible for all engineering and technical support, time and material costs. All labor will be charged at AVAIL's prevailing rates; b. On-site support is not included in the offer but is available on a time and material basis. However, AVAIL will provide remote support to COUNTY without additional charge. 12. Maintenance and Support Components CVO 11_ TECHNOLOGIES, INC. availtec.com ( 814-234-3394 11960 Old Gatesburg Rd., Suite 200 St{QOER.RI&,(T4 /i1&8iL301/1] 6 Collier Area Transit (CAT) February 1, 2021 to January 31, 2022 A. CAD/AVL Software (includes all applicable license fees): Item—Description Qty myAvail Dispatch Site myAvail Replay Site myAvail TALE Site myAvail WiNG/Netman Site myAvail RTPI solution—Web,SMS, iPhone App,Android web,Alerts,Subscription, Public Service Site Announcements, site license, internet application DataPoint Site myAvail TIDS Prediction Engine Site Business Intelligence Site CVO IL . TECHNOLOGIES, INC. availtec.com 814-234-3394 1960 Old Gatesburg Rd., Suite 200 Sta(QOERRGs¢451,8/11&811301/11 7 Collier Area Transit (CAT) February 1, 2021 to January 31, 2022 B. ERP Software (includes all applicable license fees): N/A C. Hardware I. Covered Equipment Item—Description Qty Vehicle Logic Unit—IEB/IVU 29 MDT—Vector 9000, mSlate, 10" display 29 RCU/CCM 8 PA Amplifier 8 Power Filter 8 Mackenzie DADS Annunciator 21 Sunrise Next Stop Sign 29 InfoDev APC System 29 II. Covered Computer Equipment: N/A III. Communications: N/A Item—Description Qty AVL Cellular Data 0 Public Wi-Fi Cellular Data 0 Changes in the fleet composition and cellular data needs of COUNTY will be assessed as vehicles are added/removed. Data usage will be evaluated semi-annually as the fleet and data usage is expanded by COUNTY and additional data fees may be assessed by Avail to cover usage. IV. Covered Third-Party Software: N/A V. Non-Covered Equipment: Item—Description Qty Expiration ThinClient Workstations— 4 5/2015 S/N:52E6DL301668,52E60L302218, 52E60L302712&S2E6DL302730 D. Products deemed defective will be repaired at no additional cost for parts, material and labor. Products will be replaced, instead of repaired, at AVAIL discretion. CVO IL TECHNOLOGIES, INC. . availtec.com 814-234--3394 11960 Old Gatesburg Rd., Suite 200 St 2OE:RRC DIb /i1 81-801/1] 8 rC� Collier Area Transit (CAT) February 1, 2021 to January 31, 2022 E. System Maintenance: I. COUNTY is responsible for equipment replacement as required for all installed equipment including: a. In-vehicle equipment; b. Wireless modem; c. Wireless LAN; d. Wayside Sign Component modules II. System Maintenance includes removal of equipment, replacement with a spare, initial triage diagnostics and shipping to a designated repair point.Any item returned to AVAIL must follow AVAIL's RMA procedures; a. COUNTY is responsible for shipping cost to AVAIL or designated repair point. AVAIL will return ship at AVAIL's expense. III. Exceptions: a. Non-technical hardware items such as batteries, racks, cables, connectors, mounts, handsets, speakers, antennas, sign audio buttons, KVM switches, network switches, memory storage media, panels and punch blocks are wear items and are not covered beyond the Vehicle Installation Support; b. AVAIL is not responsible for: i. Products that are not used and serviced according to the training and instructions provided by AVAIL; ii. Products that have been altered, repaired or modified without prior consent from AVAIL; iii. Products damaged by any third-party equipment or intervention, force of nature or other conditions not In AVAIL's control; iv. Products damaged due to negligence or abuse. v. Cost, loss or damages resulting from the use of AVAIL supplied products, including but not limited to, loss of time, inconvenience and loss of production; vi. Shipping and shipping related costs of products mailed to AVAIL; vii. Costs associated with parts, materials and labor provided by COUNTY's Maintenance personnel. c. AVAIL may evaluate items not covered under Maintenance and Support and an assessment will be provided to COUNTY. If COUNTY agrees with the assessment,they will be charged for the labor to complete the evaluation, shipping and shipping related costs, parts and materials used and repair labor. If COUNTY elects not to repair the item, only QIIJ O I L TECHNOLOGIES, INC. availtec.com t 814-234-3394 11960 Old Gate,burg Rd., Suite 200 St420cP.RItQ4518/15-i1,301/1] 9 ��d Collier Area Transit (CAT) February 1, 2021 to January 31, 2022 the labor required for the assessment will be charged. All labor is charged at AVAIL's prevailing rates for the required skill level. IV. Time and Material Charges for Non-Supported Hardware Repairs or Support: a. To maintain system support coverage, all systems hardware must be returned to AVAIL for repair or approved for repair by AVAIL at a specified repair facility; b. Any returned unit may be repaired or replaced at the sole discretion of AVAIL; c. AVAIL will charge a minimum of one (1) hour for each issue or return with subsequent increments billed at one-quarter (1/4) hour intervals at AVAIL's prevailing rate charges (Please refer to Figure 1); d. Charges for non-supported repair / replacement or support will include the prevailing Preferred Customer rates (subjected to periodic updates). e. Travel and associated travel labor costs for on-site work(if required) are not included and will be invoiced to COUNTY at travel costs shall be pursuant to Section 8 of this Maintenance and Support Agreement. An estimate of on-site costs will be provided prior to any travel expenses being incurred. V. Installation a. Vehicle Installations 90—Days VI. System Maintenance Logging a. All system maintenance or repair information, whether Hardware or Software, is collected and recorded via CRM Case Logs entry, RMA Tracking for Hardware and configuration management tools for Software. CVO O I L. TECHNOLOGIES, INC. availtec.com l 814-234-3394 11960 Old Gatesburg Rd., Suite 200 S42OL f.RA}+Q 118X11S$31:.3O1/1] 10 /C) Collier Area Transit (CAT) February 1, 2021 to January 31, 2022 13. Limits of Maintenance &Support Plan The maintenance and support set forth in this agreement is a limited maintenance and support plan.The hardware and software included under the initial installation, new feature purchases, purchased feature enhancements or bug fixes, are subject to the representations, warranties, indemnifications, limitations and disclaimers set forth in the license agreement. A. Limitation of Liability I. Indemnification by the COUNTY is subject to the limitation set forth in Section 768.28, Fla. Stat. II. Except with respect to the obligations of Avail pursuant to Section 7 of the software license agreement, in no event shall Avail's liability for any reason and upon any cause of action under the software license agreement exceed the maintenance and support fees paid by COUNTY to Avail; III. Aside from the provisions listed in the contract and Section 5 of the Software License Agreement Avail shall not be liable for any loss of profits, any incidental, special, exemplary or consequential damages; or any claims or demands brought against COUNTY or any third party. IV. COUNTY may terminate this Agreement for convenience with a thirty (30) day written notice. In the event that the Agreement is terminated, Avail's recovery against the COUNTY shall be limited to that portion of the Agreement Amount earned through the date of termination. Avail shall not be entitled to any other or further recovery against the COUNTY, including, but not limited to, any damages or any anticipated profit on portions of the services not performed or materials not provided. V. The parties shall not rely upon and shall not grant any means of remedy arising from any statement, representation, maintenance and support or understanding of any person other than as expressly set out in this agreement. B. Termination I. Notwithstanding the foregoing, all provisions here of relating to confidentiality, proprietary rights, nondisclosure, indemnity and limitations of liability shall survive the termination of this agreement. In the event of termination under this paragraph, COUNTY will not be entitled to any refund of any portion of the fees paid to Avail under this agreement, unless Avail: a. Materially breaches this agreement and fails to cure such breach within thirty (30) days after notice from COUNTY; b. Delivers a notice that the software has been declared obsolete or withdrawn from sale; c. Otherwise discontinues providing standard level of support for the myAvail software suite: rt . ovQ I L TECHNOLOGIES. INC. availtec.com 814-234-3394 11960 Old Gatesburg Rd., Suite 200 Sl2O-P:R l:*5 115&L301/1] 11 Collier Area Transit (CAT) February 1, 2021 to January 31, 2022 II. Avail shall refund to COUNTY an amount equal to the aggregate support charges paid by COUNTY for the time during which the standard level of support services was not provided to COUNTY. C. Miscellaneous I. This Agreement is made, and shall be construed and interpreted, under the laws of the State of Florida,and venue for any suit concerning this Agreement shall rest in the State and Federal courts for Collier County, Florida. CVO I L TECHNOLOGIES, INC. avalltec.com 1814-234-3394 11960 Old Gatesburg Rd., Suite 200 SIR&P.R Q i1f&111$$£C801/1] 12 ��� Collier Area Transit (CAT) February 1, 2021 to January 31, 2022 Available Customer Support Plans Figure 1 - Maintenance and Support Plan Plan Description • Routine Care and Urgent Care are provided during standard business hours. Standard Business • If needed for a non-covered item, Time and Material charge mechanism must be in place before work will commence and • Urgent Care response 24/7 access to the Avail Support Team which includes Extended Hours Standard Business Hours Support and all NON-business hours of coverage to support Urgent Care needs. • A customer support line to contact the on-duty support engineer at Avail. • The continuation of Urgent Care resolution after Standard Business Hours. • Includes all features of Standard Business Hour Support and Extended Hours Support • Avail operates and maintains the fixed end computer system in our dedicated data center operation Hosted System • Avail connects to your high-speed communications interface provider • Avail maintains system backup services and operational system redundancy • Includes system hardware maintenance and software release maintenance and upgrades • Avail provides the staff for operation and maintenance of the computer system at the hosted location a.r:;. CVO O I L' TECHNOLOGIES, INC. availtec.com 1 814--234-3394 11960 Old Gatesburg Rd., Suite 200 SiRth-P:RO,04518 1L3$3IB01/1] 13 Collier Area Transit (CAT) February 1, 2021 to January 31, 2022 Figure 2 -Problem Resolution Standards Level Definition Target Action • Initial response within (4) four business • Production use of the system is possible,but hours; a business function is disabled, and no workaround exists; • Resource assigned within a day and remains Routine assigned until resolution; Care • This category also applies to problems which severely impact the progress of an • Activity to resolve problem during business implementation project where no hours; workaround exists. • Target Resolution: 72 hours. • Initial response within (1)one business hour for Standard Business Hours Support; • Business Critical — Production use of the system is not possible; • Extended Hours Support response time will Urgent • No communication with vehicles and no be one (1) hour Care workaround exists; • Resource assigned immediately and remains assigned until resolution; • COUNTY requires resolution urgently do to financial, legal and public risk exposure. • Immediate activity to resolve problem; • Target Resolution: 24 hours. OlJ° IL TECHNOLOGIES, INC. availtec.com 1814-234-•3394 11960 Old Oatesburg Rd., Suite 200 S1[211-R:R 5118%11S$1.801/1] 14 >Lf11 Collier Area Transit (CAT) February 1, 2021 to January 31, 2022 14. Reporting Process: A. Contact the Call Center and register problem with system - (814)-234-3394 (extension 1050); A. If no answer at the Call Center, be sure to leave caller name, COUNTY name and contact phone number, description of problem; B. Alternate contact: I. E-mail- support@availtec.com. 15. Standard Business Hours: A. Monday through Friday; B. 7:30 AM to 7:30 PM EST; C. National holidays excluded. January 1st Presidents Day Memorial Day July 4th Labor Day Thanksgiving Day Friday Immediately after Thanksgiving Christmas Eve -Dec. 24th Christmas Day—Dec. 25th NOTE: If the Holiday falls on a Saturday, AVAIL is closed on the preceding Friday. NOTE: If a Holiday falls on a Sunday, AVAIL is closed on the following Monday a VC) IL TECHNOLOGIES, INC. availtec.com 1814-234-3394 11960 Old Gatesburg Rd., Suite 200 S1[ab-PR .#51€8111`$1:.B:fl1/1] 15 Collier Area Transit (CAT) February 1, 2021 to January 31, 2022 17. Workflow: Upon receipt of an issue, AVAIL support staff will begin documentation of the issue. The documentation shall record all pertinent information that has been received either by telephone or email. Following completion of the gathering of information regarding the problem,AVAIL support staff will categorize the issue and communicate the target action back to COUNTY contact. Once a problem has been identified, AVAIL support staff will work with AVAIL or third-party engineering staff to determine an appropriate solution timeframe. Once the solution has been tested and proven viable, AVAIL support staff will contact COUNTY to make arrangements for implementation. In the event the solution cannot be tested and implemented within the timeframe that was initially communicated to COUNTY, AVAIL support staff will attempt to implement a workaround for COUNTY while pursuing resolution. In all cases, AVAIL will attempt to minimize the amount of time necessary to resolve the issue. If AVAIL personnel cannot recreate the problem in the lab configuration, additional information may be required from COUNTY.This may include but is not limited to screen shots in .bmp or .jpg format and/or retrieval of files from the affected software. AVAIL will endeavor to resolve any system problems remotely through use of a Virtual Private Network (VPN). If both parties deem it necessary to travel to COUNTY premises to resolve the problem, the on-site engineering/technical support services are included in this agreement. The cost for the travel and living expenses shall be agreed upon between the PARTIES. The engineering / technical support services rendered will be billed to COUNTY if it is determined while on site that the problem resolution was not due to AVAIL's inability to re-create and resolve the problem remotely. Acceptance of Plan Avail Technologies, Inc. Board of County Commissioners Collier C unty, Florida -7/_.3.-j)....-6,-c L* 0.01/448 Signature Signature Kerry Couch 'kw/ Tcxy kc Printed Name Printed Name Chief Financial Officer c 'ncxc— Title Title 10/14/2022 ,.Qtstka`C ) 1All Date Date 3 ATTEST:- as to form and legality } 1N l-, CLER Appro � y CR TAL';K �[ Q V Q I l._ Deputy Clerk jam,_ 0 stµt ♦ L ' ` \., tan County Attorney \'1JP TFCHNOL.OGIES, INC. �`,�St��J CO.CtiIT�i{�1 �Q E, ur,©nly w\ !1 „} availtec.com 1 814--234-3394 11960 Old Gatesburg Rd., Suite 200 S1RII-R:R1I}4 S18 13 BQ1/1] 16 CVOIL:. I LCi1NOLOGIE`.a. INC. ATTACHMENT 1 THIS SOFTWARE LICENSE AGREEMENT (the "Agreement") is made and entered into by and between Avail Technologies, Inc., a Pennsylvania corporation ("Avail") and Collier County ("Licensee"). [Hereinafter each may be referred to as a "Party" or collectively as the "Parties"]. WHEREAS, Avail is the owner of the Software (as defined below) which is licensed to Licensee under and pursuant to the terms of this Agreement and all referenced Exhibits; and WHEREAS, Licensee, desires to obtain a license to use the Software solely in its business operations on the terms and conditions set forth in this Agreement; and WHEREAS, Licensee and Avail have entered into a contract("Contract")for equipment,software, and services, to which this Exhibit is attached for the reason of defining the licensing terms for Avail's software; and NOW, THEREFORE, for and in consideration of the premises and mutual covenants set forth herein, and other good and valuable consideration, the receipt and legal sufficiency of which are hereby acknowledged, the Parties hereto agree as follows: LICENSE TO USE SOFTWARE. 1. Description and Term. In consideration of the payment of the license fees set forth in the Contract, and subject to termination as provided below, Avail grants to Licensee a nonexclusive, nontransferable license for the authorized number of Users and Vehicles (as provided in Section 2 below or in an Amendment to this Agreement signed by the Parties) to use the Avail Enterprise Transit Management Software (ETMS). Customer's rights under this Agreement will begin on Subscription Start and will end on the Subscription End (the "Initial Term"). The Initial Term will automatically renew for successive periods of twelve (12) months (each, a "Renewal Term", and the Initial Term and Renewal Term are collectively, the "Term"), unless a party gives the other party written notice of non-renewal at least THIRTY (30) days prior to the end of the then current Term, or the Agreement is sooner terminated as provided in the Terms and Conditions. THE SOFTWARE IS COPYRIGHTED AND LICENSED (NOT SOLD). AVAIL DOES NOT SELL OR TRANSFER TITLE TO, OR ANY OWNERSHIP INTEREST IN, THE SOFTWARE OR DOCUMENTATION TO LICENSEE. LICENSEES LICENSE OF THE SOFTWARE WILL NOT COMMENCE UNTIL LICENSEE HAS EXECUTED THIS AGREEMENT AND AN AUTHORIZED REPRESENTATIVE OF AVAIL HAS RECEIVED, APPROVED AND EXECUTED A COPY OF IT AS EXECUTED BY LICENSEE. The obligations of the Parties under and pursuant to this section shall become effective as of the requested date and shall remain in effect for a period of twelve (12) months after System Acceptance as provided for in the Contract, however, that the Parties' obligations may be extended for additional twelve (12) months periods (each a "Renewal Term") on the anniversary availtec.com 1814-234-3394 11960 Old Gatesburg Rd.. Suite 200 State College. PA 16803 date of the requested date. The Initial Term together with any Renewal Term shall be the "Term" of this Agreement; provided and so long as Licensee is not in breach of or default under this Agreement or this Agreement has not been terminated pursuant to the Contract #11-5650 Intelligent Transportation Systems (ITS), and subject to Avail's right to increase its fees or rates as provided herein. 2. Scope of Permitted Use. Pursuant to Section 1.A.l, Section 12.A, and Section 12.B of the Support and Warranty Agreement — Licensee agrees that it may allow its designated employees or computers (Users) • access to the software and may manage all authorized vehicles in the Software. 3. Scope of License Rights; Restrictions. (a) The license granted to Licensee under this Agreement entitles Licensee to use, and Licensee agrees to use, the Software and Documentation solely as set forth in this Section 3(a) (i) through 3 (a) (iv): (i) Store, install and access the Software, in machine readable form, through an internal network using those computers and software specified in the Contract, or access the Software via the Internet, but in either case only for use by that number of users specified and only for the purpose of serving the internal needs of the business of Licensee; (ii) In support of Licensee's authorized use of the Software, store the Software's machine-readable instructions or data in, transmit it through, and display it on machines associated with the computer(s) specified in the Contract; (iii) make 2 copies of the Software in machine-readable, object code form, for nonproductive backup purposes only, provided that and, (iv) use the Documentation solely to assist Licensee in its authorized use of the Software. (b) The license granted to Licensee under this Agreement does not grant to Licensee the right to, and Licensee acknowledges and agrees that it does not have the right to and that it will not: (i) copy (except as expressly permitted in Section 3(a)(iii) above), change, disassemble, decompile, reverse engineer, sublicense, assign, timeshare, sell, give away, loan, rent, lease,transfer(electronically or otherwise), display, disclose, or provide any third party with access to or use of, the Software; directly or indirectly create or attempt to create software that emulates the Software; prepare derivative works of the Software: or separate the components of the Software; (ii) copy or provide any third party with access to or use of any of the Documentation without the prior written consent of Avail; CIVC1 IL TECHNOLOGIES, INC. availtec.com I 814-234-3394 11960 Old Gatesburg Rd., Suite 200 State College, PA 16803 2 (iii) transfer any of Licensee's rights or obligations under this Agreement without the express, advance, written consent of an officer of Avail, and then only if: 1. Licensee keeps no copies of the Software or Documentation; 2. Licensee transfers Licensee's entire rights and obligations under this Agreement in or to the Software and Documentation; and, 3. the transferee agrees in writing to the terms and conditions of this Agreement, after which time Licensee will no longer have the right to use the Software. Any attempted transfer or assignment of any of Licensee's rights or obligations under this Agreement shall be null and void unless it is in full compliance with this Section 3(b)(3); (iv) remove any proprietary or copyright legend from any material contained in or on the Software or the Documentation; (v) publish or disclose to any third party any reports or the results of any benchmark tests run on the Software or its components; or, (vi) use any trademarks or service marks of Avail. 4. Limited Warranty and Limitation of Warranties. (a) Subject to the conditions and limitations set forth herein, Avail warrants for a period of (12 months) immediately following the System Acceptance of the Software (the "Warranty Period")that the Software will substantially conform in all material respects to the specifications set forth in the Contract. Subject to the provisions and limitations set forth herein, Avail will correct any such nonconforming Software if Licensee has notified Avail of such nonconformity in writing within the Warranty Period. Avail shall not be obligated to correct, cure or otherwise remedy any such nonconformity in the Software if Licensee has not reported to Avail the existence and nature of such nonconformity within the Warranty Period, and such nonconformity cannot be verified. (b) The limited warranty set forth in Section 4(a) above does not apply to any Software that has been repaired or modified by persons other than Avail or its authorized agents, or that has been installed by Licensee or any of its independent contractors other than Avail. The foregoing warranty is conditioned upon the proper use of the Software in accordance with the terms and conditions of this Agreement and with Avail's User Manual and any other written instructions provided by Avail to Licensee, and in an operating environment in compliance with the specifications and requirements as set forth in this Agreement. Avail makes no warranty that the operation of the Software will be uninterrupted or error free, or that all Software defects will be corrected. (c) Avail makes no warranty that the software will operate with all applications, utilities, or other memory resident programs. • CVO-o 11_ TECHNOt.OGIES, INC. availtec.com 1814-234-3394 11960 Old Gatesburg Rd., Suite 200 State College, PA 16803 3 (d) Avail shall not be responsible for any obsolescence of the Software for any reason. Furthermore, Avail assumes no responsibility for the use of superseded, outdated or uncorrected versions of the Software. 5. Limitation of Liability. (a) EXCEPT FOR ANY LIABILITY ARISING UNDER SECTION 7, THE CUMULATIVE LIABILITY OF AVAIL TO LICENSEE FOR ALL CLAIMS RELATING TO THE SOFTWARE AND THIS AGREEMENT, INCLUDING ANY CAUSE OF ACTION SOUNDING IN CONTRACT, TORT OR STRICT LIABILITY, SHALL NOT EXCEED THE TOTAL AMOUNT OF ALL LICENSE FEES PAID TO AVAIL HEREUNDER. THIS LIMITATION OF LIABILITY IS INTENDED TO APPLY WITHOUT REGARD TO WHETHER OTHER PROVISIONS OF THIS AGREEMENT HAVE BEEN BREACHED OR HAVE PROVEN INEFFECTIVE. AVAIL SHALL HAVE NO LIABILITY FOR LOSS OF DATA OR DOCUMENTATION, IT BEING UNDERSTOOD THAT LICENSEE IS RESPONSIBLE FOR REASONABLE BACKUP PRECAUTIONS. (b) IN NO EVENT SHALL AVAIL BE LIABLE FOR ANY LOSS OF PROFITS; ANY INCIDENTAL, SPECIAL, EXEMPLARY OR CONSEQUENTIAL DAMAGES; OR ANY CLAIMS OR DEMANDS BROUGHT AGAINST LICENSEE OR ANY THIRD PARTY, EVEN IF AVAIL HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH CLAIMS OR DEMANDS. THIS LIMITATION UPON DAMAGES AND CLAIMS IS INTENDED TO APPLY WITHOUT REGARD TO WHETHER OTHER PROVISIONS OF THIS AGREEMENT HAVE BEEN BREACHED OR HAVE PROVEN INEFFECTIVE. (c) Avail and Licensee do not rely on and shall have no remedy arising from any statement, representation, warranty or understanding (whether negligently or innocently made) of any person (whether party to this Agreement or not) other than as expressly set out in this Agreement. 6. Proprietary Protection and Restrictions. (a) Licensee acknowledges and agrees that the Software and Documentation is the sole property of Avail and contains copyrighted, confidential and trade secret information, and that as between Avail and Licensee, Avail shall have the sole and exclusive ownership of all right, title and interest in and to the Software and Documentation, (including ownership of all trade secrets, confidential information and copyrights pertaining thereto), subject only to the rights and privileges expressly granted to Licensee herein by Avail. Licensee must and will keep the Software and Documentation free and clear of all claims, liens and encumbrances of any nature whatsoever. Licensee will keep the Software and Documentation in confidence, and will take all reasonable measures necessary to protect and maintain the confidential and proprietary character of the Software and Documentation. Furthermore, Licensee will indemnify and hold Avail harmless from and against all losses and damages resulting from any unauthorized or improper disclosure, dissemination or use of the Software as a result, in whole or in part, of Licensee's action or inaction. Ca/dIL TFCNNOLOGIFS, INC. availtec.com 1814-234-3394 11960 Old Gatesburg Rd., Suite 200 State College, PA 16803 4 (b) Licensee hereby authorizes Avail to enter Licensee's premises in order to inspect the Software in any reasonable manner during regular business hours to verify Licensee's compliance with the terms of this Agreement. Licensee will cooperate fully with Avail and promptly provide Avail and its agents with full access to its facilities, and will engage in no acts or omissions to hinder or delay Avail's access to Licensee's premises and computers or the inspection thereof. (c) Licensee acknowledges that, in the event of Licensee's breach of any of the provisions of this Agreement, Avail will not have an adequate remedy in money or damages. Avail shall therefore be entitled to obtain an injunction against such breach from any court of competent jurisdiction immediately upon request. Avail's right to obtain injunctive relief shall not limit its right to seek further remedies. 7. Indemnity. If a third party claims that the Software or Documentation infringes any patent, copyright, trade secret, or any similar intellectual property right, Avail will defend Licensee against such claim at Avail's expense and will pay all damages that a court finally awards, provided that Licensee promptly notifies Avail in writing of the claim, cooperates fully with Avail in the defense of any such claims, and allows Avail to control the defense thereof and/or any related settlement negotiations. If such a claim is made or appears possible, Avail will, at it option and expense, either: (i) procure for Licensee the right to continue using the Software and/or Documentation; (ii) replace or modify the Software or Documentation so that it becomes non-infringing; or, (iii) if it is not possible or in Avail's sole discretion is not economically feasible for Avail to so procure such right or so replace or modify the Software, require the return of the Software and upon such return repay to Licensee the unused portion of the applicable license fee amortized over a 3 year period from the Effective Date and any annual technical support fees paid by Licensee for the remainder of the then current Term for such technical support services. However, Avail shall have no obligation for any claim based on Licensees modification of the Software or Documentation or its combination, operation or use with any product, data or apparatus not specified or provided by Avail. THIS PARAGRAPH STATES AVAIL'S ENTIRE OBLIGATION TO LICENSEE WITH RESPECT TO ANY CLAIM OF INFRINGEMENT. 8. Export and Government Use Restrictions. Licensee agrees that it will not export or re-export the Software, any part thereof, (the foregoing are referred to as the "Restricted Components"), to any country, person or entity subject to United States export restrictions. Furthermore, Licensee agrees to comply with all of the export and re-export restrictions and regulations imposed by the governments of the United States and/or any country to which the Software is shipped. Use, duplication or disclosure by the government is subject to restrictions as set forth in DFARS 252.227-7013 or the Commercial Computer Software - Restricted Rights at 48 CFR 52.227-19. The terms of this Section shall survive the termination or expiration of this Agreement. Cv.oIL TECHNOLOGIES, INC. availtec.com 1814-234-3394 11960 Old Gatesburg Rd., Suite 200 State College, PA 16803 5 9. Incorporation of other Software The Software may incorporate material or components which are owned by third parties and which are used by agreement between Avail and such third parties. Licensee acknowledges and agrees that any third-party owner of such materials or components is a direct and intended third party beneficiary of this Agreement who may enforce this Agreement directly against Licensee. 10. Assignment. This Agreement shall be binding upon and shall inure to the benefit of and be enforceable by the Parties and their respective successors and permitted assigns. Except as otherwise provided herein, this Agreement may not be assigned by licensee without the prior written consent of Avail and upon payment of an assignment fee. 11. Severability. Should any one or more of the provisions of this Agreement be determined to be invalid, illegal or unenforceable in any respect, the validity, legality and enforceability of the remaining provisions hereof shall not in any way be adversely affected or impaired thereby. The Party shall endeavor to replace the invalid, illegal or unenforceable provisions with valid provisions the economic effect of which comes as close as practicable to that of the unenforceable provisions. 12. No Third-Party Rights. Except as otherwise expressly provided herein, the representations, warranties, covenants and agreements contained in this Agreement are for the sole benefit of the Parties and their respective successors and permitted assigns, and they shall not be construed as conferring any rights on any other persons. 7GI I L TECHNOLOGIES, INC. availtec.com I 814-234-3394 11960 Old Gatesburg Rd., Suite 200 State College, PA 16803 6 ` i 13. Entire Agreement. This Agreement constitutes the entire agreement among the Parties relating to the subject matter hereof, and supersedes all prior and contemporaneous negotiations, writings, agreements, warranties, guarantees, whether written or oral, express or implied, relating to the subject matter of this Agreement. The Parties may, by mutual written agreement and in no other manner, modify or amend the terms of this Agreement. The failure or delay of any Party at any time or times to require the performance of any provision of this Agreement shall in no manner affect its right to enforce that provision. No single or partial waiver by any Party of any condition of this Agreement, or the breach of any term, agreement or covenant of, or the inaccuracy of any representation or warranty in, this Agreement, whether by conduct or otherwise, in any one or more instances, shall be construed or deemed to be a further or continuing waiver of any such condition, breach or inaccuracy or a waiver of any other condition, breach or inaccuracy. IN WITNESS WHEREOF, the Parties have executed this Agreement effective as of the date first above written. AVAIL: LICENSEE: AVAIL Technologies, Inc. Collier County Signature: Signature: _ w Name: Kerry Couch Name: I"Off i Title: Chief Financial Officer (CFO) Title: C[ U1,b(— Attested: Signature: Signature: Name: Gina Hess Name: Title: Customer Support & Helpdesk Manager Title: ATT �Y: App as to fo and legality _...__j CRY L K. KI' L; LERK (�t (� I L.'J yy1 Deputy Clerk istant County Attorney + tiil( I oi'.`� Ni;. ,�y 'eliJ{5{V C airman's \V1\� V" 7.!'!7tice only. availtec.com I 814-234-3394 11960 OW Gatesburg Rd., Suite 200 State College, PA 16803 7 ivC)