Loading...
HomeMy WebLinkAboutResolution - 4794 - Supplemental Agreement - Advanced Control Systems - LP&L Computer System - 04_12_1995Resolution 4794 April 13, 1995 Item #13 BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF LUBBOCK: THAT the Mayor of the City of -Lubbock BE and is hereby authorized and directed to execute for and on behalf of the City of Lubbock a Supplemental Maintenance Support Agreement Control Number LPL-HPM9000 for Lubbock Power and Light's Supervisory Control and Data Acquisition computer system for the life of the equipment, attached herewith, by and between the City of Lubbock and Advanced Control Systems, and any associated documents, which Agreement shall be spread upon the minutes of the Council and as spread upon the minutes of this Council shall constitute and be a part of this Resolution as if fully copied herein in detail. Passed by the City Council this ATTEST: BettyOM. Johns , City Secretary 13th day of April , 1995. APPROVED AS TO CONTENT: Brent A. Heath, Supervising Engineer APPROVED AS TO FORM: G. Vandiver, First Assistant City Attorney DGV:da ccdocs/HPM9000. res March 9, 1995 . CHECK APPLICABLE SUPPORT: ❑ Baseline Software Support X Full Subscription Software Support ❑ Baseline Hardware Support X Full Subscription Hardware Support CONTROL NO.: Resolution No. 4794 April 13, 1995 Item #13 ADVANCED CONTROL SYSTEMS MAINTENANCE SUPPORT AGREEMENT THIS MMN ENANCE SUPPORT AGREEMENT (the "Agreement") is entered into by ADVANCED CONTROL SYSTEMS, INC., a Georgia corporation ("ACS"), and the party identified below as "LICENSEE" ("Licensee"). The effective date of this Agreement (the "Effective Support Date") is the date set forth above. In consideration of their respective rights and obligations under this Agreement and other valuable consideration, the receipt, sufficiency and adequacy of which are hereby acknowledged, and intending to be legally bound by this Agreement, Licensee and ACS have fully reviewed and agree to all of the terms and conditions of this Agreement. ADVANCED CONTROL SYSTEMS, C. / Authorized SigaaEur —' `" Address Printed Name: David L. Kline Advanced Control Systems, Inc. 2755 Northwoods Parkway Position: Director. Customer Service Norcross, GA 30071 Attention: Regena S. Muench Attestation Signature ^ �'ic.`�-Telephone No.: (404) 446-8854 Fax No.: (404) 448-0957 Printed Name: Pamela B. Eaaerton rrmtea N ame: Position: Mayor Attestation Signature: Lk Printed Name: Betty M. Johnson Position: City Secretary tu000cic Power and Light 600 Municipal Drive Lubbock. TX 79457 Attention: Mr. Brent A. Heath. F.E. Telephone No.: (806) 767-2584 Fax No.: (806) 762- 422 ADDITIONAL TERMS AND CONDITIONS OF THIS AGREEMENT BEGIN ON THE FOLLOWING PAGE. THIS AGREEM0ENT ALSO CONTAINS SEVERAL ATTACHED SCHEDULES AND/OR EXHIBITS, THE PAGES OF WHICH ARE NOT NUMBERED. APPROVED AS TO CONTENT:',t`,.v,,.,�e�(, BRENT A. HEATH, Supervising Engineer DON VANDIVER, Asst. City Attorney - - I Page I ur-5 BACKGROUND A. Licensee has acquired from ACS ACS' supervisory control and data acquisition system (the "System"), which consists of: (i) certain computer software and associated documentation developed by ACS and licensed to Licensee pursuant to a license agreement between ACS and Licensee (the "License Agreement). Such software (the "ACS Software") is described in Part One of Schedule A to the License Agreement; (ii) certain computer software and associated documentation developed by parties other than ACS and sublicensed to Licensee pursuant to the License Agreement. Such software (the "Third Party Software") is described in Pan Two of Schedule A to the License Agreement; (iii) certain computer equipment and peripherals developed by ACS that are described in Part Three of Schedule A to the License Agreement (the "ACS Hardware"); and (iv) certain computer equipment and peripherals developed by parties other than ACS that is described in Part Four of Schedule A to the License Agreement (the "Third Pam, Hardware"). B. ACS desires to offer Licensee one of two levels of maintenance and support services ("Baseline" or "Full Subscription," as described in Sections 2.1(a) and 2.1(b)) with respect to the ACS Software and the Third Party Software (collectively, the "Software") and one of two levels of maintenance and support services ("Baseline" or "Full Subscription," as described in Sections 3.1(a) and 3.1(b)) with respect to the ACS Hardware and the Third Party Hardware (collectively, the "Hardware") pursuant to the terms and conditions set forth in this Agreement. ARTICLE 1 DEFINITIONS For purposes of this Agreement, the following definitions shall apply to the respective capitalized terms: 1.1 "Initial Support Term" means: (a) if the "Warranty Period" applicable to Licensee (as provided in Section 3.1 of the License Agreement) has not expired as of the Effective Support Date, the full amount of time remaining in the Warranty Period plus the one-year period immediately following the Warranty Period; or (b) if the "Warranty Period" applicable to Licensee has expired as of the Effective Support Date, the one-year period beginning on the Effective Support Date. 1.2 "Maior Enhancement" means any major functional revision to the ACS Software (designated by a renumbered release number such as 7.3.1 to 8.0.0) released by ACS during the Initial Support Term or any Renewal Support Terms and all Third Party Software enhancements and upgrades certified by ACS to work with the ACS System (e.g. HP Operating System Upgrades) released by such Third Party Software vendors and made available for distribution by ACS during the Initial Support Term or any Renewal Support Term. 1.3 "Mirror Enhancement" means any minor modifications or "bug foes" made by ACS to the ACS Software and made generally available to all licensees of ACS. 1.4 "Renewal Support Terms" means any one of the successive one-year renewal terms following the Initial Support Term agreed upon by the Parties pursuant to Section 7.1. 1.5 "Reported Discrepancy" or "Discrepancy" means any alleged failure of the ACS Software to perform in substantial conformity with the "Software Specifications" (as set forth on Schedule D to the License Agreement) reported to ACS by Licensee. 1.6 "Support Times" means the hours of each day and the days of each week set forth in Part A of Schedule I to this Agreement. ARTICLE 2 ACS' SOFTWARE SUPPORT RESP(7iNSIBILI TIES 11 Software Support Duties. During the Initial Support Term and any Renewal Support Terms, ACS shall render the Software support services set forth in this Article 2 to Licensee, subject to Licensee's payment of the support fees described in Article 5, and Licensee's compliance with the Licensee's obligations set forth in Article 4 and all of Licensee's obligations under the License Agreement. Licensee shall he entitled to either "Software Baseline Support" (as described in Section 2.1(a)) or "Software Full Subscription Support" (as described in Section 2.1(b)), depending on which level of support is checked on the signature page to this Agreement. Licensee shall be entitled to Software and Hardware Baseline Support free of chame during the Warranty Period. Licensee may elect to receive Software and/or Hardware Full Subscrintion Support during die Warranty Period by paying the Full Subscription Upgrade Fee(s) set forth on Schedule 2. (a) Software Baseline Support. Software Baseline Support shall consist of the following support services: (i) Telephone Help Desk. ACS shall provide Licensee with telephone "Help Desk" assistance during the Support Times (subject to a maximum monthly usage by the Licensee of the number of hours set forth in Part B of Schedule 1 to this Agreement) regarding the installation and implementation of the ACS Software, and the identification, diagnosis and correction of Reported Discrepancies (subject to the provisions of Section 2.2). If Licensee is located in the continental United States, such telephone Help Desk assistance shall be conducted via a toll -free telephone tine. ACS shall attempt to resolve any support questions posed by Licensee during the initial call. If ACS determines that it would be appropriate to do so, ACS may defer resolution of a support question until a later time. At its discretion, ACS may provide Licensee with Help Desk support during times other than the Support Times and/or beyond the maximum number of monthly usage limits at ACS' then standard rates. Licensee shall be responsible for paying telephone tolls and charges for such additional Help Desk support. (ii) Electronic Bulletin Board. ACS shall provide Licensee with access to an electronic bulletin board (subject to a maximum monthly usage by the Licensee of the number of hours set forth in Part C of Schedule 1 to this Agreement). If Licensee is located in the continental United States, such electronic bulletin board access shall be conducted via a toll -free telephone line. (iii) Written Support Summaries. ACS shall prepare and distribute to Licensee periodic written summaries of Reported Discrepancies reported by ACS licensees generally and resolutions to such Reported Discrepancies. (iv) Third Party Software Suz)g rt. ACS will be the first point of contact and will coordinate the provision of support services (the Page 2 of 5 "Third Parry Support") for the Third Party Software. Additional terms and conditions of the Third Party Support are set forth in the applicable support agreements between ACS and the Third Party Software vendors, Any inconsistencies between the terms set forth in this Agreement and the terms of the Third Party Software support agreements shall be resolved in favor of the latter. (b) Software Full Subscription Support. Software Full Subscription Support shall consist of the following support services: (i) All Baseline Support rvices. ACS shall provide Licensee with each of the support services set forth in clauses (i), (ii), (iii) and (iv) of Section 2.1(a), (b) Minor Enhancements. ACS shall provide Licensee with copies of all Minor Enhancements at no additional cost to Licensee. (iii) Major Enhancements. ACS shall provide Licensee with copies of all Major Enhancements at no additional cost to Licensee. (jv) Disaster Recovery. Upon the written request of Licensee, ACS will store back-up copies (in disk or tape format) of Licensee's operating system software and computerized data files on ACS' premises, pending release to Licensee in the event Licensee's primary copies of such software and data files are destroyed or otherwise lost or rendered unusable (a "Casualty Loss'). Licensee may provide ACS updated tapes or disks up to four times each year during the Initial and any Renewal Support Terms and ACS will destroy the earlier version of such rapes or disks. Licensee shall notify ACS if it requests release of the tapes or disks in the event of a Casualty Loss. Upon receipt of such notice, ACS shall have up to forty-eight (48) hours to deliver Licensee the stored tapes or disks. Licensee shall bear all expenses associated with delivery of the tapes or disks to ACS from Licensee and to Licensee from ACS pursuant to this Section 2.1(b)(iv). Licensee must clearly label every tape or disk sent to ACS for storage. 2.2 Procedures for Discrepancy Correction Services. To obtain the Reported Discrepancy correction services for the ACS Software from ACS under this Article 2, Licensee must notify ACS immediately of any suspected Discrepancy and must provide ACS with reasonable detail of the nature of and circumstances surrounding the Discrepancy. ACS may perform remote diagnostics to determine the existence and nature of a Discrepancy. If ACS verifies that Licensee's ACS Software does not perform in substantial conformity with the Software Specifications (a "Confirmed Discrepancy"), ACS shall advise Licensee of procedures or routines that, when observed in the regular operation of the ACS Software, ACS has determined may eliminate the practical adverse effect on Licensee of the Confirmed Discrepancy. Alternatively, in its discretion, ACS may develop for Licensee and assist Licensee in implementing "bug fixes" to correct the Confirmed Discrepancy. Where ACS' development of an effective Confirmed Discrepancy correction proves to be time-consuming, ACS may provide Licensee with temporary 'work -around' procedures. ACS may perform any Confirmed Discrepancy correction work initially via remote telecommunications, and if such off -site support is unavailable, in ACS' opinion, to satisfactorily resolve the Confirmed Discrepancy, ACS shall provide such support at the Licensee Premises. 2.3 Limitations on ACS' Sunnort Obligations. Notwithstanding anything to the contrary elsewhere in this Agreement, ACS shall have no obligation to provide Licensee any of the support services set forth in Section 2.1 with respect to the ACS Software if: (a) such support relates to or involves any computer code or software that is not a part of the ACS Software; (b) Licensee or a third party has altered or modified any portion of the ACS Software in any manner without Use express, prior written consent of ACS; (c) Licensee has not used Use ACS Software in material accordance with operating instructions provided by ACS; (d) Licensee has failed to replace earlier versions of the ACS Software with Major or Minor Enhancements provided to Licensee; (e) ACS reasonably determines that Licensee's ACS Software has been subjected to unusual physical or electrical stress, including accident, neglect, misuse, improper programming, transportation, failure of electrical power, air conditioning or humidity control; (f) a party other than ACS (or a party authorized by ACS) has serviced the ACS Software; or (g) Licensee is not in full compliance with the other terms of this Agreement, the terms of the License Agreement or any other agreement between ACS and Licensee. ACS' support obligations under this Agreement shall not include electrical work external to the System, including telephone line work and interconnection work or the installation or repair of accessories, alterations, attachments, parts or devices not furnished by ACS, Notwithstanding anything to the contrary in this Agreement or in the License Agreement, the responsibilities of ACS set forth in Section 2.1 constitute all of ACS' obligations with respect to the Software Support; these stated obligations do not imply any additional obligations on ACS' part (for example, any obligation for ACS to furnish Licensee with additional computer memory or hard disk space that may be desirable or necessary for Licensee to snake best use of the Software Support that ACS is obligated to furnish pursuant to Section 2.1). 2.4 Additional Service, In its discretion, ACS may provide Licensee with additional support services for the ACS Software not otherwise covered under this Article 2 or specifically excluded pursuant to Section 2.3, provided Licensee pays ACS for such service at ACS' then standard hourly charge and expense reimbursement rates. Except to the extent specifically provided otherwise in this Agreement, such support service is not included within the terms of this Agreement. ARTICLE 3 ACS' HARDWARE SUPPORT RESPONSIBILITIES 3.1 Hardware Support Duties. During the initial Support Term and any Renewal Support Terms, ACS shall render the support services set forth in this Article 2 to Licensee, subject to Licensee's payment of the support fees described in Article 5, and Licensee's compliance with the Licensee's obligations set forth in Article 4 and all of Licensee's obligations under the License Agreement. Licensee shall be entitled to either "Hardware Baseline Support" (as described in Section 3.1(a)) or "Hardware Full Subscription Support" (as described in Section 3.l(b)), depending on which level of support is checked on the signature page to this Agreement. (a) Hardware Baseline Sttgport. Hardware Baseline Support shall consist of the following support services: (i) Repair of Renlacemem of Defective (non -HP) Hardware. Subject to the other limitations of this Agreement, ACS, at its expense shall (at its sole option) either repair or replace any piece of Hardware (other than HP Hardware and Remote Terminal Units - RTU) that contains a material defect in materials or workmanship (a 'Hardware Defect"). To avail itself of such services, Licensee shall contact ACS promptly if it discovers a Defect and describe the nature of the Defect. If ACS concurs with Licensee that there is a reasonable likelihood that such Hardware is materially defective in materials or workmanship (and ACS shall not unreasonably withhold such concurrence), ACS will issue Licensee a return authorization number (a "RAN'). At its expense, Licensee shall return the defective Hardware to ACS at the address specified on the signature page to this Agreement describing, in writing, in detail, the alleged Defect and indicating the RAN. ACS, at its sole option, will either ship to Licensee replacement Hardware or repair the Hardware and return it to Licensee. ACS shall bear all costs associated with (a) performing the services under this Section 3.1(a)(i) and (b) shipping the Hardware back to Licensee. (b) Hardware Full Subscription Support. Hardware Full Subscription Support shall consist of the following support services: (i) ADD Baseline Aline Support Services, ACS shall provide Licensee with each of the support services set forth in Section 3,1(a). (ii) HP HardM= Support. Licensee shall be entitled to receive, through ACS, special HP Hardware support subject to the terms and conditions established by HP from time to time. 3.2 L rdtations on ACS' Support Obligations. Notwithstanding anything to the contrary elsewhere in this Agreement, ACS shall have no obligation to provide Licensee any of the support services set forth in Section 3.1 with respect to the Hardware if: (a) Licensee or a third party has altered Page 3of5 or modified any portion of the Hardware in any manner without the express, prior written consent of ACS; (b) Licensee has not used the Hardware in material accordance with operating instructions provided by ACS; (c) ACS reasonably determines that Licensee's Hardware has been subjected to unusual physical or electrical stress, including accident, neglect, misuse, improper programming, transportation, failure of electrical power, air conditioning or humidity control; (d) a party other than ACS or HP (or a patty authorized by ACS or HP) has serviced the Hardware; or (e) Licensee is not in full compliance with the other terms of this Agreement, the terms of the License Agreement or any other agreement between ACS and Licensee. 3.3 Additional Service. In its discretion, ACS may provide Licensee with additional support services for the Hardware not otherwise covered under this Article 3 or specifically excluded pursuant to Section 3.2, provided Licensee pays ACS for such service at ACS' then standard hourly charge and expense reimbursement rates. Except to the extent specifically provided otherwise in this Agreement, such support service is not included within the terms of this Agreement. ARTICLE 4 LICENSEE'S OBLIGATIONS 4.1 Access. During the Initial Support Term or any Renewal Support Term Licensee will provide ACS with reasonable access (via remote telecommunications or on -site access at Licensee's Premises) to Licensee's copies of the Software and Licensee's Hardware to the extent necessary, in ACS' discretion, to enable ACS to meet its support obligations as set forth in this Agreement. 4.2 Communications Link. During the Agreement Term, Licensee, if located in the United States, at its sole expense, shall install and maintain, an operational modem and associated dial -up telephone line. ACS shall be entitled to use this modem and telephone line in discharging its responsibilities under this Agreement. Licensees located outside of the United States shall use their best efforts to secure similar telecommunications capacity. ACS shall have no liability to Licensee if Licensee is located outside of the United States and if ACS' ability to render support is impaired by Licensee's inability to provide telecommunications functionality comparable to that requested to be provided by Licensee if located in the United States. 4.3 Licensee Contact. Licensee shall designate one of its personnel as a "Licensee Contact" to be generally available during the Support Times to confer with ACS regarding ACS' support obligation pursuant to this Agreement. The initial Licensee Contact is identified on Part D of Schexhile I to this Agreement. Licensee shall notify ACS immediately of any changes in the person designated as Licensee Contact. 4.4 Relocation of System. Licensee shall give ACS at least thirty (30) days prior written notice before relocating the System to a location other than the Licensee Premises. Licensee may not relocate the System outside of the country or territory where the Approved Location (as defined in Section 1.3 of the License Agreement) is located, and any attempt to do so shall constitute a material breach of the terms of this Agreement. ARTICLE 5 FEES AND CHARGES 5.1 General Fees and Chances. In exchange for ACS' support obligations set forth in this Agreement, Licensee shall pay ACS the fees and charges set forth in Schedule 2 to this Agreement. ACS shall provide Software and Hardware Baseline Support Services to Licensee free of charge during the Warranty Period, if applicable to Licensee and Licensee shall have the right to pay a special "upgrade" fee (as set forth on Schedule 21 to receive Full Subscription Support during the Warranty Period. ACS may make reasonable adjustments to these fees and charges at the beginning of any Renewal Support Term to reflect any underlying costs associated with ACS' provision of the support services under this Agreement. 5.2 Miscellaneous Items. Licensee shall bear all costs associated with procuring, installing, and maintaining all equipment, telephone lines and communications interfaces necessary for Licensee to obtain from ACS the services called for by this Agreement. 5.3 Payment Procedures. On a quarterly basis during the Initial Support Term and any Renewal Support Term, ACS will invoice Licensee for all fees and charges incurred by Licensee pursuant to this Agreement. Licensee shall pay all invoiced amounts within thirty (30) days of the date of invoice. Any unpaid amounts shall bear interest at a rate of 1 percent (I %) per month or the maximum rate permitted by applicable law, whichever is greater. ARTICLE 6 DISCLAIMER OF WARRANTY AND LIMITATION OF LIABILITY 6.1 Disclaimel:. ACS' PRICING FOR THE SUPPORT SERVICES TO BE RENDERED TO LICENSEE REFLECTS THE ASSUMPTION THAT ALL WARRANTY SERVICES ARE PROVIDER "AS IS." ACCORDINGLY, ACS EXPRESSLY DISCLAIMS ANY AND ALL WARRANTIES CONCERNING THE SERVICES TO BE RENDERED BY ACS HEREUNDER, WHETHER EXPRESS OR IMPLIED, INCLUDING (WITHOUT LIMITATION) ANY WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. ACS SHALL HAVE NO LIABILITY TO LICENSEE FOR ANY LIABILITY OR DAMAGES SUSTAINED BY LICENSEE AS A RESULT OF ANY CLAIM OR ACTION BROUGHT OR ASSERTED AGAINST LICENSEE BY A THIRD PARTY. 6.2 Maximum Liability. In no event shall ACS' cumulative liability for any claim arising in connection with this Agreement exceed the amount of the total fees and charges paid to ACS by Licensee during the twelve (12) months preceding any such claim. IN NO EVENT SHALL ACS BE LIABLE TO LICENSEE FOR ANY INDIRECT, CONSEQUENTIAL, SPECIAL, EXEMPLARY, OR INCIDENTAL DAMAGES OF WHATEVER KIND AND HOWEVER CAUSED, EVEN IF ACS KNEW OR SHOULD HAVE KNOWN OF THE POSSIBILITY OF SUCH DAMAGES. 6.3 Time Limitation. No action, whether based on contract, strict liability, or tort, including any action based on negligence, arising out of the performance of services by ACS under this Agreement, may be brought by Licensee more than one (1) year after such cause of action accrued. 6.4 Indemnification. Licensee, at its expense, shall indemnify ACS, its respective employees, officers, directors, shareholders and agents (collectively, the "Indemnitees") and hold the Irdemnitees harmless against any and all losses, costs (including court costs and reasonable attorneys' fees), damages, settlements, suits, actions, expenses, liabilities, and claims sustained by the Indemnitees arising out of or resulting from any material breach by Licensee of the terms and conditions of this Agreement. ARTICLE 7 TERM AND TERMINATION 7.1 Term. The Initial Support Term shall be as set forth in Section 1.1, After the Initial Support Term, this Agreement will automatically renew for successive, one-year Renewal Support Terms unless terminated by either ACS or Licensee in accordance with this Article 7. If at any point, either ACS or Licensee determines not to renew this Agreement, it shall provide the other Party written notice of its intention not to renew at least thirty (30) days prior to the end of the Initial Support Term or the then -current Renewal Support Term, as the case may be. At any time during the Initial Support Term or any Renewal Support Term, Licensee may elect to upgrade Licensee's Software and/or Hardware support from Baseline Level to Full Subscription level by nto*irrg ACS in writing. ACS will notify Licensee of the effective date of the upgrade (which will not be longer than ten (10) business days following ACS' receipt of Licensee's notice to ACS that it wishes to upgrade). Licensee's decision to upgrade during the Initial or any Renewal Support Term shall not alter the termination date of the then current Term. Any upgrade will automatically carry-over to successive Terms, unless Licensee notifies ACS in writing at least thirty (30) days prior to the end of a Term that Licensee wishes to downgrade to Baseline level support for the next Term. Page 4 of 5 7.2 Additional Termination Rights. This Agreement may be terminated as follows: (a) This Agreement shall immediately and automatically terminate upon the termination of the License Agreement. (b) Either ACS or Licensee may terminate this Agreement immediately upon the occurrence of a uncured breach by the other Party of a material provision of this Agreement. An "uncured breach" is a breach that the breaching party has not corrected (to the non -breaching parry's reasonable satisfaction) within thirty (all) days after the non -breaching party has provided the breaching parry with written notice specifying the details of the alleged breach. 7.3 Post -Termination Resp2ndbilities. Following termination of this Agreement, ACS shall immediately invoice Licensee for all accrued fees and charges and all reimbursable expenses, and Licensee shall pay the invoiced amount immediately upon receipt of such invoice. ARTICLE S MISCELLANEOUS 8.1 Force Maieure. Should the performance of ACS under this Agreement be delayed as a result of fire, flood, earthquake, or similar catastrophe; civil commotion, strike, labor dispute, or embargo; lack or failure of transportation facilities; unavailability under commercially reasonable terms of [necessary parts or components for the ACS Hardware or Software; or any law, proclamation, or order of any governmental agency, then the time for performance shall be extended by a period of time equal to the duration of such delay provided that the Parties work diligently to minimize such delays. ACS shall not be liable for any delay or failure to perform any provision of this Agreement if such delay or failure to perform is caused by an act of God or any factor beyond the reasonable control of ACS, or the failure of Licensee to comply with its obligations and responsibilities under this Agreement. 8.2 Severabilityin case any one or more of the provisions contained in this Agreement or any application thereof shall be invalid, illegal or ► nenforceable in any respect, the validity, legality and enforceability of the remaining provisions contained herein and any other applications thereof shall not in any way be affected or impaired thereby. 9.3 Assismnent. Except as set forth herein, neither this Agreement nor any interest therein shall be assigned by ACS or Licensee without the prior written consent of the other party. Notwithstanding the prior sentence, ACS shall be allowed to assign this Agreement to any successor entity by way of merger, acquisition of substantially all of its assets, or operation of law provided such successor agrees in writing to be bound by the terms of this Agreement. 8.4 Choice of Law. The validity, construction, and enforcement of this Agreement, and the determination of the rights and duties of the Parties, shall be governed by the laws of the State of Texas U.S.A. (exclusive of any choice of law or other provision that would result in the application of the laws of any other jurisdiction). 8.5 Notices. Any notice, authorization, consent or other communication required or permitted under this Agreement shall be made in writing and shall be deemed effective when delivered (except as may expressly be provided otherwise in this Agreement) to the addresses of the Parties set forth on this signature page. 8.6 Burdens and BenefNs. This Agreement shall be binding upon and shall inure to the benefit of the Parties, their respective successors and assigns, as permitted hereunder. 8.7 Captions, Sections, Articles and Schedules. The captions and headings in this Agreement ate for convenience of reference only and shall not be referred to in the construction or interpretation of this Agreement. Any reference in this Agreement to a "Schedule," a "Section" or an "Article" shall refer, respectively, to schedules, sections, or articles in this Agreement. The content and terms of all schedules to this Agreement (including any schedules that are not completed as of the execution of this Agreement and any amended schedules) are by this reference incorporated into this Agreement. 8.8 Entire Agreement. This Agreement constitutes the entire agreement among the Parties with respect to the subject matter hereof, and supersedes any prior statement or writing not a part of this Agreement or otherwise referenced in this Agreement, and neither parry shall be bound by any prior or contemporaneous representation, statement, promise, warranty, covenant, or agreement pertaining thereto unless set forth or referred to in this Agreement. Notwithstanding anything to the contrary in any agreement between the Parties, in the event of an inconsistency between the terms of this Agreement and the terms of any other agreement between the Parties (including the terms of any form of purchase order of Licensee), the terms of this Agreement shall govern. 8.9 Amendments and Waiver. (a) No amendment, change, or modification of this Agreement or any of the terms, conditions or provisions hereof, and no waiver of a right, remedy, privilege or power, or discharge of an obligation or liability, conferred upon, vested in, or imposed upon any parry under or pursuant to this Agreement, and no consent to any act or omission pertaining hereto shall be effective unless duly embodied in a written instrument signed by the duly authorized representatives of both parties. (b) No failure to exercise and no delay in exercising any right, remedy, privilege, or power under or pursuant to this Agreement shall operate as a waiver thereof; nor shall any single or partial exercise of any right, remedy, privilege, or power provided for under or pursuant to this Agreement by either party hereto preclude or limit such parry from any other or further exercise thereof or from pursuing any other right, remedy, privilege, or power available pursuant to this Agreement, at law or in equity. Page 5 of 5 MAINTENANCE SUPPORT AGREEMENT SCHEDULES Part A -- The "Support Times" as provided in Section 1.6 are as follows: Monday through Friday, _8:00 a.m. through _8:00_ p.m. (Eastern Standard/Daylight Savings Time), excluding the following holidays. New Year's Day; Martin Luther King, Jr.'s Day; President's Day; Memorial Day; Independence Day; Labor Day; Columbus Day; Thanksgiving Day; and Christmas Day. Part B -- Maximum number of telephone Help Desk hours permitted Licensee per month (pursuant to Section 2.1(a)(i)): 4* hours Fart C -- Maximum number of Electronic Bulletin Board hours permitted Licensee per month (pursuant to Section 2.1(a)(ii)): 4* hours Part D -- The Licensee Contact (as required by Section 4.3), and his/her address and phone number and fax number at Licensee's location are: Mr. Brent A. Heath, P.E. Lubbock Power and Light 600 Municipal Drive Lubbock, TX 79457 806-767-2584 FAX - 806-762-4422 * The hours listed in Part C and Part D are intended to be the basis for addressing instances where the available tools are not being fully utilized by the Customer. Prior to taking any action, ACS Customer Service will contact the Customer to discuss, develop, and implement a plan to correct the concern. Lei VOMUM"UAN11" Schedule 2 Fees and Charges for Maintenance Support Service * NOTE: All Licensees executing this Agreement will receive Software and Hardware Baseline Support during the Warranty Period set forth in Section 3.1 of the License Agreement Software Support Fee for Baseline Support Software Support Fee for Full Subscription Support Hardware Support Fee for Baseline Support Hardware Support Fee for Full Subscription Support Standard Hourly ACS Support Fees (for services in addition to those provided as part of the above support fees) Additional Fees and Charges: $ Included $10836.00/9 months $ Included $ 2133.00/9 months $ 135.00/hour The annual support fees are payable quarterly by Licensee upon execution of this Agreement. Any additional fees and charges will be billed by ACS to Licensee by invoice. Licensee shall pay all such fees and charges within thirty (30) days of invoice. Any delinquent payments shall bear interest at a rate of one percent (1 %) per month or the maximum rate permitted by applicable law. Effective Date: March 1, 1995 - November 30, 1995 ADDENDUM II POST WARRANTY Schedule 2 Fees and Charges for Maintenance Support Service Annual Software Support Fee for Baseline Support $ /year Annual Software Support Fee for Full Subscription Support $18844.00/year Annual Hardware Support Fee for Baseline Support $ /year Annual Hardware Support Fee for Full Subscription Support $_7508.00/year Standard Hourly ACS Support Fees (for services in addition to those provided as part of the above support fees) $_135.00/hour Additional Fees and Charges: For your convenience and budgetaU 12urposes on second year warranty. Advanced Control Systemsprojects the total hardware and software annual amount to be $27.670.00. This projection does not include any system hardware and software add-ons that have been installed within the past year. The annual support fees are payable quarterly by Licensee upon execution of this Agreement. Any additional fees and charges will be billed by ACS to Licensee by invoice. Licensee shall pay all such fees and charges within thirty (30) days of invoice. Any delinquent payments shall bear interest at a rate of one percent (1 %) per month or the maximum rate permitted by applicable law. Effective Date: December 1, 1995 - November 30, 1996 [apw] hlwpdocs\t\t6\m=upag [apw] hAwpdocs\t\t6\mtnsupag.cvr 3