HomeMy WebLinkAboutGenSource, a Division of StrataCare, Inc. (GSC) - 2006-06-06CITY. .0F HUNTINGTON BEACH,
Interdepartmental Memo
TO: ' City Clerk
FROM: Risk Management/Administration
Z
DATE: July 18, 2006 Z! c
SUBJECT: GenSource 0
Please receive and file the attached agreement:
ASP Software and Data Hosting and Maintenance Agreement for Gensource.
Thank you.
in R , ed for Patti Williams, Risk Management
Cc: Patti Williams, Risk Management
Interdepartment_Memo_Form -1- 7/18/2006 11:42 AM
FOB
CONTRACTS SUBMITTAL TO
CITY CLERK'S OFFICE
To: JOAN FLYNN, City Clerk
Name of Contractor: ASP - GenSource
Purpose of Contract: For Example: Audit Services or Water Quality Testing Huntington Lake —Huntington Central Park
Software and Data Hosting and Maintenance Agreement
Amount of Contract:
$6,980.00 permonth
Copy of contract distributed to: The original insurance certificate/waiver distributed
to Risk Management 0
Initiating Dept. ❑
City Treasurer ❑ ORIGINAL.bonds sent to Treasurer ❑
Date:
Name/E.tension
City Attorney's.Office
CC) 'i
T G' � �"TTl9�/7`c-�.� — /j / T
1
2763
ASP SOFTWARE AND DATA HOSTING AND MAINTANANCE AGREEMENT
THIS AGREEMENT, made and entered into this 6TH day of June, 2006 by and between GenSource Di-
vision of StrataCare, Inc., a Delaware corporation, (hereinafter "("GSC"), and the City of Huntington Beach, a
charter city and municipal corporation organized and existing under the Constitution and laws. of the State of
California (hereinafter "City").
RECITALS:
Whereas, City has perpetual license rights to certain software programs (including the accompanying
documentation and reference guides) the "Covered Programs" under existing licenses from GSC and third
parties (the "Existing Licenses'), as set out in the License Agreement Between the City of Huntington Beach
and California Interactive Computing, Inc. dated March 8, 1988 (attached hereto and incorporated herein by ref-
erence).
Whereas, City is interested in continuing to utilize GSC's software pursuant to the City's existing license
agreements as well as the new services contemplated in Gensource proposal dated March 29, 2005, and specifically
installation and configuration of a remote program housing database (commonly referred to as "GenCOMP") for the
purposes of the City accessing specific workers compensation software and data from a remote site server located at
Gensource offices (Remote System).
Whereas, City is in need of additional services consisting of off site "hosting" its software programs and
data as well as continued maintenance services.
NOW THEREFORE, in consideration of the mutual and respective promises, and subject to the terms and
conditions hereinafter set forth, the parties agree as follows:
1. Recitals. The recitals above are incorporated into this Agreement.
2. Scope of Services. GSC agrees to perform the services ("Services") specified in EXHIBIT A Proposal
to Huntington Beach dated March 29, 2005, attached to this Agreement and incorporated herein by reference.
In particular, GSC shall provide the following:
A. Covered Program and Data Access.. At its premises located GSC has installed and will
maintain a server ("City Designated Server") on which the City's Covered Programs will be loaded, and City
data will be stored. City will have unlimited electronic access to the City Designated Server to utilize the Cov-
ered Programs and City's data that has been stored on said server during the Term of this Agreement. City will
electronically access the Covered Programs and/or data as reasonably directed- by GSC, including the minimum
bandwidth requirements as provided by GSC which will be based on number of users and the number Covered:
Programs as defined herein Exhibit A attached hereto and incorporated herein by reference. City will be respon-
sible for all costs relating to accessing the programs and data stored on the GSC server. In the event the City
does not elect to renew this agreement, GSC agrees to provide to the City in a readily identifiable format, all
data stored by GSC as well as updated programs consistent with the City's perpetual license agreement. GSC
further agrees to provide support to the City in reintegrate the information and software at GSC's then rates.
B. Server Maintenance: IF GSC FAILS TO MAINTAIN THE CITY DESIGNATED SERVER
AND AS A RESULT THE CITY IS NOT ABLE TO ACCESS THE SERVER, DATA OR COVERED PRO-
GRAMS AT LEAST 95% OF THE TIME DURING ANY MONTH, THE CITY MAY TERMINATE THIS
CONTRACT WITHIN 60 DAYS THEREAFTER. GCS WILL PROVIDE REASONABLE "BACKUP" OF
ALL CITY DATA STORED ON SAID SERVER, AND IN THE EVENT OF A FAILURE OF SAID
SERVER, WILL AS NECESSARY RELOAD"TH IJ' TA'AND THE COVERED PROGRAMS ON A RE-
PLEACEMENT SERVER AT NO COST TO THE CITY.
C. Software Maintenance. In response to request for service by City, GSC will perform remedial
maintenance services ("Remedial Maintenance") as part of the City's basic Monthly Maintenance Charge as
set forth in Exhibit A. GSC agrees to keep each Covered Program properly performing each of its material
functions substantially in accordance with that Covered Program's standard specifications (any failure so to per-
form shall constitute a program "Error"). City agrees to assign a "Designated Representative" to work with
GSC in the event an Error occurs. In critical emergency situations where City's Designated Representative(s)
cannot reasonably be made available, GSC will work with other reasonably designated representatives of City
The Basic Monthly Maintenance Charge entitles City to request Remedial Maintenance to be performed during
the hours of 8:00 a.m. and 5:00 p.m. (California local time) daily, Monday through Friday, excluding legal holi-
days.
The Basic Monthly Maintenance Charge supersedes the previous monthly maintenance agreement entered into
by parties and the terms of any maintenance agreements entered into by parties shall be void.
Procedure for Reporting Errors. City's Designated, Representative .will report to GSC any Errors it dis-
covers by fax or email ("Error Report"). City will include all, available information reasonably required to re-
produce the Error. Upon proper submittal of an Error Report, GSC will acknowledge investigate and use rea-
sonable efforts to cure the Error. City's Designated Representative may escalate its request for Remedial Main-
tenance to GSC's City Service supervisor if appropriate. GSC shall .designate an individual who shall be respon-
sible for communications with the City for the duration of this Agreement.
D. Additional Services Outside the Current Payment Schedule
1. Extended Maintenance.- From time to time, GSC may offer Extended Maintenance.
,Hours with respect to-one.,or more Covered Programs, in:exchange for specified Ektended..Maintenance:Charges.,
City, -may elect. to take advantage .of any such offer effective as of the beginning of any month on at least 30
days' written notice (which. election may be terminated by either party as of 'the end of a month on at least 30
days' written notice). Payment of the Extended Maintenance. Charge entitles City to request Remedial Mainte-
nance during the applicable Extended Maintenance Period. In addition, a Designated Representative may re-
quest that GSC provide Remedial Maintenance service at other times, but the scheduling of such Remedial
Maintenance shall be contingent on availability and on the receipt of City's, approval to incur additional charges
at GSC's then published rates.
2. Free Updates.. Provided the Term is then continuing at then end of the second year after
the start date set forth in the related Inclusion Schedule and every two years .thereafter, GSC will make an Up-
date to each Covered Program available to City. "Update" means a routinely -issued revision of the Covered
Program, generally issued for the purpose of correcting discovered errors, improving efficiency or overall per-
formance and incorporating enhancements or statutory changes that GSC makes generally available to.its licen-
sees of that Covered Program but does not include upgrades that include departures from the standard specifica-
tions with regard to functionality or enhancements or added features or functions. There shall be no installation
charge for any Update which can be installed remotely without customization; customization and on site instal-
lation will be made at then -published rates for such services. City will cooperate as necessary to allow installa-
tion of any Update and understands that its failure to do so may, in GSC's sole discretion, relieve GSC of any
subsequent obligation under Section 1.2. All software shall be delivered to City electronically.
3. Training. GSC will provide training of City personnel beyond that required in the ap-
plicable Inclusion Schedule at its then published rates. GSC also reserves the right to charge for requests by
City personnel for consulting services on subjects which normally would be covered in the course of GSC's
standard"Certified User" training.
2
4. Customization. GSC,-upon request by a Designated Representative, may provide cus-
tomization as mutually agreed by the parties at GSC's then published rates.
3. Term. This Agreement shall apply to any particular Covered Program as set forth in Exhibit A during
the period commencing as of the start date set forth in the related Inclusion Schedule and (unless otherwise ear-
lier terminated in accordance with this Agreement) continue for an initial term of three (3) years. The Term of
each Covered Program shall automatically renew for an additional one year period unless either party shall pro-
vide written notice of non renewal at least 90 days prior to the then current date of renewal for the Term of that
Covered Program. If either party shall be in material default of its obligations under this Agreement and such
default continues for fifteen (15) days after written notice thereof by the parry not in default,"the non -defaulting
party shall have the right, in addition to all other rights provided by law or this Agreement, to end the Term for
all Covered Programs. However, the end of any Term shall not affect the obligation of either party pursuant to
any right or cause of action that accrued or may be accruing prior to such cancellation or termination.
4. Existing Licenses. City will be responsible for maintaining the Existing Licenses and complying with
the terms and conditions thereof. Following the expiration of the Term of this Agreement, City's rights and ob-
ligations under those Existing Licenses will continue according to the terms of those Existing Licenses.
5. Acceptance Testing. The following acceptance test procedure shall apply to Remote System Program
Implementation:
I GSC shall give City written notice when the implementation is completed and ready for
City's acceptance test.
2. City shall have ten (10) days after receipt of GSC's notice'to determine if the system
functions according to specifications and if the program successfully meets City's acceptance test (the "Accep-
tance Test"). If the Release.successfully meets City's Acceptance Test, in, City's reasonable judgment; City shall
notify GSC_in -writing within_three•(3) days after completion of the Acceptance Test whether the Covered Pro-
gram is accepted.by City, including specifying in written detail any manner -in which.the.Acceptance..Test re-
sults are unsatisfactory :.If the --City does riot respond, the program will be deemed accepted.
3.. If City disapproves of the Acceptance Test results, GSC shall have fourteen (14) days
after receipt of City's notice of disapproval to make any appropriate corrections. If it believes such corrections
are effective, it shall provide City with a written certificate that the program is ready for a second Acceptance
Test. City shall have ten (10) days after receipt of the second notice to conduct the second Acceptance Test and
either: (1) approve the Acceptance Test results and notify GSC that the Release is accepted ("Final Accep-
tance"); or (2) disapprove the Acceptance Test results, in which case the Term of the Agreement.will end unless
the parties agree in writing on another approach If the City does not respond, the program will be deemed ac-
cepted.
5. Compensation and Method of Payment. City shall pay GSC in accord with and as set forth in EXHIBIT A
of this .Agreement. _
A. Monthly Maintenance Charges. The Basic Monthly Maintenance Charge as set forth in Exhibit
A and, if applicable, any Extended Monthly Maintenance Charge. GSC shall not increase any Basic Monthly
Maintenance Charge during the three year term of this Agreement. During the Term, GSC may provide City
with not less than 90 days' written notice of any general price increase in the Extended Monthly Maintenance
Charge for any Covered Program. Such notice will only be effective on anniversary of the commencement date
except in the case of passing through increases in costs of third party programs or databases. After the effective
date of the Notice, the charges hereunder will be revised to reflect such change unless not less than 30 (thirty)
days prior to the effective date City provides written notice to GSC electing to terminate the Term for any Cov-
ered Program affected thereby.
h4�
B. Expenses. Any expenses actually incurred by. GSC in providing the services hereunder, includ-
ing Telecommunications Charges and Travel Expenses. "Telecommunications Charges" means out of pocket
charges (plus handling costs, not to exceed 10% where the common -carrier bills GSC for facilities used by City)
for the use of common -carrier telecommunications facilities in the course of providing maintenance services,
such as (i) dial -up facilities, whether for the transmission of voice or data, or both; (ii) private leased lines, and
(iii) microwave links or other electronic information transmission facilities. "Travel Expenses" means actual
and reasonable charges incurred by GSC for travel to any outside site.
C., Other Charges. Any additional charges set out in the Inclusion Schedule, as well as charges
based on GSC's then published rates and expenses for all work requested by City which is not covered by those
charges, the Basic Monthly Maintenance Charge and, if applicable, the Extended Monthly Maintenance Charge,
including Remedial Maintenance which did not result from Errors or was requested during times not covered by
City's plan, travel, customization, and training of City personnel:
D. Taxes. Any taxes imposed on GSC as a result of this Agreement, other than those based on its
net income.
E. Invoices and Payments. GSC shall render invoices monthly (i) in advance for the monthly
maintenance charges and (ii) in arrears for all other charges. Any monthly maintenance charges for a period of
less than a month shall be prorated on the basis of a thirty (30) day month. City shall pay each invoice in full
within thirty (30) days after receipt. If any charges are not paid when due, GSC may discontinue providing ser-
vices under this. Agreement until the account is brought current, and/or charge City a late charge in the amount
of 1.5% per month of any past due amount(s).
7. Bankrupts. All rights and licenses granted to City pursuant to. this Agreement are, and shall be deemed
to be, for purposes of Section 265(n) of the U.S. Bankruptcy Code, licenses of rights to "intellectual property" as
defined under Section I01 of the U.S. Bankruptcy Code. In a.bankruptcy or insolvency proceeding involving
GSC, the parties agree that .City, aslicensee of such rights, shall retain and fully' exercise all of its rights and
elections under the U.S ..Bankruptcy -:Code, and the provisions thereof shall applyrnotwithstanding-conflict of law
principles. If, in a bankruptcy, or'insolvency proceeding involving GSC* the provisions- of the U.S. Bankruptcy
Code referenced above -are determined not to apply, City shall nevertheless be entitled to no less than the protec-
tion offered by the provisions of the U.S. Bankruptcy Code with respect to its entitlement to and rights to the use
and possession of all intellectual property to which City has been granted rights under this Agreement notwith-
standing -the bankruptcy or insolvency of GSC.
k
8. No Disruption Of Software. GSC acknowledges that City is a provider of services to the public and
residents of the City of Huntington Beach and that City's use of the Software will be vital to the business opera-
tions of City and the health and safety of City's patients and that any unauthorized interruption of City's busi-
ness could result in substantial liability to City. In recognition of City's status as a provider of such public ser-
vices, during the Term of this Agreement and so long as City is not in breach of this Agreement or the Existing
Licenses, GSC shall not deliberately take any action to render the Software unusable or inoperable, take posses-
sion of the Software, and products, software, hardware, equipment or copies of Software provided to City by
GSC in breach of this Agreement
9. Independent Contractor. GSC shall, during the entire term of this Agreement, be construed to be
an independent contractor and not an employee of the City. This Agreement is not intended nor shall it be
construed to create an employer -employee relationship, a joint venture relationship, or to allow the City to
exercise discretion or control over the professional manner in which GSC performs the services which are the
subject matter of this Agreement; however, the services to be provided by GSC shall be provided in a manner
consistent with all applicable standards and regulations governing such services. GSC shall pay all salaries and
wages, employer's social security taxes, unemployment insurance and similar taxes relating to employees and shall
be responsible for all applicable withholding taxes.
4
_10. Proprietaa Or Confidential Information _Of The Ci GSC understands and agrees that, in the perform-
ance of the work or services under this Agreement or in contemplation thereof, GSC may have access to private
or confidential information which may be owned or controlled by the City and that such information may con-
tain proprietary or confidential details, the disclosure of which to third parties may be damaging to the City.
GSC agrees that all information disclosed by the City to GSC shall be held in confidence and used only in per-
formance of the Agreement. GSC shall exercise the same standard of care to protect such information as a rea-
sonably prudent GSC would use to protect its own proprietary data.
11. Headings. Headings and captions used to introduce Sections and paragraphs of this Agreement are for
convenience, only, and have no legal significance.
12. Construction. (a) Except. as provided in Recitals or Section 2 A above, acceptance or acquiescence in a
prior course of dealing or a course of performance rendered under this Agreement or under any Purchase Order
shall not be relevant in determining the meaning of this Agreement even though the accepting or acquiescing
party has knowledge of the nature of the performance and opportunity for objection.
(b) The language in all parts of this Agreement and any Purchase Order shall in all cases be construed in whole,
according to its fair meaning, and not strictly for or against, either GSC, City regardless of the drafter of such
per•
13. Access. Access to City's premises by GSC shall be subject to the reasonable security and operational
requirements of City. To the extent that GSC's obligations under this Agreement or any Purchase Order require
the performance of Services or Work by GSC on City's property or property under City's control, GSC agrees:
(i) to accept full responsibility for performing all Services or work in a safe manner soas not to jeopardize the
safety of City's personnel, property, or members of the general public; and (ii) to comply withand enforce all of
City's reasonable regulations, policies, and procedures including, without limitation, those with respect to secu-
rity, access, safety and fire protection, City's policy againstsexual harassment, and all applicable state and mu-,,
nicipal.safety. regulations; building�codes-or ordinances -of which GSC has reasonable�notice., City agrees to take
full responsibility:for compliance:byit and.its employees with.all of City's-reasonable regulations, policies, and.:_
procedtrres--including, without;°limitation.those.withrespect to security, -access, safety. and fire .protection, City's ;
policy-against:sexual,harassment; and:all appli6able4state-and-municipal..safety regulations; building codes or
ordinances:
IN WITNESS WHEREOF, the parties have executed this Agreement.
"City
City of ngton Beach
By: _
Print Name
Print Title .7Dce
Address: 2000 Main street
Huntington beach, CA 92648
APPROVED AS To FORM
X61
FER�M� QYAMxney
Laepa�ty �itt�Atto ey
"GSC"
GenSour a division of S
corpor
By:
Print ame: Gr ishe
Print Title: President/COO
INC., a Delaware
Address: 25572 Avenue Stanford,
Valencia, California 91355-1102
GENASOURCE-
INTEGRATED RISK TEGrtNOLOGIES
2557211=w Stmrford
Proposal T/dendq CA 91355--1102
to
City of Huntington Beach'�2'0
(66ij 29413fOFs1X
for rde>@kftWWz* rp-erne
ASP Installation of GenCOMP.
March 29, 2005
ASP Program - 8 (ConcurreFM Users $29,950
Includes.
Installation and Configuration of GenCOMP
-Requirements Review for Upgrade Implementation
-Review of "CONFlG (table driven system options)
-Set-up of Hosted Hardware, OS, and DBMS configuration
Third Party Software Products
Engfish Wtmrd Reporting Software
4nfoMaker - Report Generator
GenSource Hosted Hardware
-Database Server and Application Server
GenCOMP Upgrade Training (1 day for up to 5 people)
Enterprise Upgrade to IBM Universe Database
8 users X $ 238 $1.904
System hardware, network, arWor dml n procedures must meet GS specifications
Nkftuan term for ASP Program Is three years from dateof Tine" production.
Training covers up to 5 students, Additional students will be at an extra cost of $300 per student per day.
All T8 M labor wit be pe binned at G&Oousoe's then prevailing pub5shed tabor rate.
Ad hoc reporting training is optional and agailabfe upon request..
Pricing shown is based on normal business working hours, after-hours or weekend work iHas requested by the d9ient will be
charged at a higher hourly rate.
Prices do not include trcrr�r ght, Insurarce and sates tad. AN travel and "per diem" to be borne by the customer:.
Prices of third party oroducts are sublect to chance at amr time without notice.
ASP User Fee -
8 users x $60
fees?
$3.bkxi i Mo.
$480 / mo_
/ fro.
- _Ma6,M
Monthly fees commence upon Irma' pm&=bon processing of dustcmefs td2rrsaction9
Payment terms are 30 days net late payments will be subject to a late fee equal to 1.5% per month, ofthe unpaid balance,
Proposal includes ASP access rights floc S users. Adid7noml users may be added for SW per user permonth..
This proposal is valid 60 days from date hated above.
,- rce rnaintenace now Includes biannual upgrades in ire monthly maintenance fee
P of the AS U use d4tabase fees are due upon ac6eplancet of ibis proposal.
fit.
Authorized By Title
�{ 7-7-/ la" LG 1 "q r,�" S G Zu ^UJ
Print flame Date
Exhibit C
ADDITIONAL TERMS AND CONDITIONS
These Terms and Conditions set forth certain terms and conditions governing the license of the Covered Programs:
COPYRIGHT. The Covered Programs are protected by intellectual property rights. The Covered Programs are protected by intellectual prop-
erty rights. City shall treat the Covered Programs like any other copyrighted material (such as books or recordings) and will not, directly or
indirectly, (i) use, reproduce, publish, disseminate or otherwise disclose any Covered Program Materials without GSC's prior written consent
or (ii) duplicate, manufacture, reproduce or arrange for or contract with any third party to duplicate, manufacture, reproduce any Covered
Program Materials or (N) reverse -engineer, decompile, or disassemble the Covered Programs. "Covered Program Materials" means all
information related to the Covered Programs provided to City including documentation, technical designs, data and data structures, repricing
methodologies, training manuals, operation procedures, information, specifications, object code and source code.
HARDWARE. City agrees to maintain its hardware in accordance with GSC's "Hardware and Communications Requirements for GenSource
ASP"; which City acknowledges may change from time to time as technology develops and the Covered Programs are updated.
PERMITTED PURPOSE. City shall only use the Covered Programs in accordance with training manuals and documentation provided by GSC.
This Agreement entitles City to use the Covered Programs for the number of users specified in the Existing Licenses. This Agreement does
not grant City any ownership or property rights. City may not allow access to the Covered Programs, under any circumstances, to anyone
other than City's personnel who have gone through the Covered Programs training program and are directly involved in the use of the Cov-
ered Programs ("Authorized Persons"). Any other use of the Covered Programs is unauthorized (an "Unauthorized Use") and a material
breach of this Agreement. Unauthorized Use includes (a) the attempt, solicitation or execution of a sale, transfer, disclosure, lease, license
of the Covered Programs to any third party or (b) allowing Access by anyone other than Authorized Persons to the Covered Programs, or
(c) the creation, development, research, or any analysis of any derivative work based on or derived from the Covered Programs or (d) ex-
ceeding the number of users for which City's license is granted.
NEED FOR PROTECTIONS. City acknowledges that (a) any and all intellectual property rights in or related to the Covered Program Materials
are the exclusive property of GSC or their owners; (b) the Covered Programs are a commercially valuable, proprietary product of GSC or
their owners; (c) GSC has invested substantial time and economic resources in the design and development of the Covered Programs and
(d) the Covered Programs constitute trade secrets of GSC or their owners. Disclosure of any such information can be expected to result in
substantial harm to GSC. As money damages would not be a sufficient remedy for any breach of the confidentiality provisions of this
Agreement, GSC shall be entitled to specific performance and injunctive relief as remedies for any such breach, without the necessity of
posting any bond:
LIMITED'.WARRANTY; DISCLAIMER AND LIMITATION OF LIABILITY.
Limited:WNarranty.. If GSC is Unable -to repair or provideTa reasonable work around for an Error.in a Covered Program after a
reasonable. opportunity," GSC's sole.and exclusive liability, and City's exclusive remedy, shall be the refund of all license fees paid with re-
spect;to_the°prior 30 days. EXCEPT FOR THE FOREGOING THE"COVERED PROGRAMS ARE PROVIDED "AS IS," WITHOUT ADDI-
TIONAL WARRANTY OF ANY KIND, AND GSC EXPRESSLY- DISCLAIMS ALL OTHER WARRANTIES, EXPRESS OR, INCLUDING,
BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF DESIGN, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE,
ANY WARRANTIES ARISING FROM A COURSE OF DEALING, USAGE, OR TRADE PRACTICE. GSC DOES NOT WARRANT THAT
THE FUNCTIONS CONTAINED IN THE COVERED PROGRAMS WILL MEET CITY'S REQUIREMENTS, OR THAT THE OPERATION OF
THE COVERED PROGRAMS WILL BE UNINTERRUPTED OR ERROR -FREE, OR THAT DEFECTS IN THE COVERED PROGRAMS
WILL BE CORRECTED. No oral or written information or advice given by GSC or GSC's representatives shall create any warranty with
regard to the Covered Programs or in any way increase the scope of this warranty.
LIMITATION OF LIABILITY. UNDER NO CIRCUMSTANCES, INCLUDING NEGLIGENCE, SHALL GSC BE LIABLE FOR ANY
LOST REVENUE OR PROFITS OR ANY INCIDENTAL, INDIRECT, SPECIAL, OR CONSEQUENTIAL DAMAGES THAT RESULT FROM
THE USE OR INABILITY TO USE THE COVERED PROGRAMS, EVEN IF GSC OR GSC'S AUTHORIZED REPRESENTATIVE HAS BEEN
ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT SHALL GSC'S TOTAL LIABILITY TO CITY FOR ALL DAMAGES,
LOSSES, AND CAUSES OF ACTION, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, EXCEED
THIRTY (30) DAYS SERVICE FEES PAID BY CITY TO GSC UNDER THIS AGREEMENT. IN ADDITION, GSC WILL NOT BE LIABLE
FOR ANY CLAIMS OF ANY PARTY ARISING OUT OF ANY ALLEGED OR ACTUAL INFRINGEMENT BY THE COVERED PROGRAMS
OF ANY INTELLECTUAL PROPERTY RIGHTS OF ANY THIRD PARTY.
Limitations' Concerning Third Party Material. GSC shall have no responsibility under any condition for performance of any
hardware or programs licensed by it from third parties, and City shall rely solely on the manufacturers' warranty (if any).
Exclusions. GSC shall not be responsible to the extent any failure to perform in accordance with the foregoing warranties is
caused by (a) City's failure to use the Covered Programs in accordance with instructions included in the documentation provided to City by
GSC, (b) the modification of the Covered Programs by any person other than GSC, its employees, agents, affiliates or subcontractors
(unless such modification was authorized or approved by GSC), or (c) problems caused by the connectivity to City's network. If GSC is
requested by City to service such matters, City shall pay GSC an additional fee for such support services.
Risks Considered. GSC's pricing reflects the allocation of risks and limitation of liability in this Agreement.
CITY CONFIDENTIAL INFORMATION. GSC agrees to use City's Confidential Information solely in the course of its services to City, and not oth-
erwise to disclose or use any such Confidential Information. "Confidential Information" means all data and information, written or verbal,
v
tangible or intangible, made available, disclosed, or otherwise made known to GSC by or on behalf of GSC, other than information (a) which
,was already known by GSC at the time of its disclosure hereunder; (b) disclosed to GSC by a third party lawfully in possession of such in-
' formation and not under an obligation of nondisclosure to City in respect thereof, (c) which is or becomes part of the public domain, except
by breach of this Agreement by GSC; (d) developed by GSC independently; or (e) which GSC is required to disclose by law, regulation or
the order of a judicial or administrative authority. To allow GSC to comply with this obligation, City agrees to mark as "confidential" all Confi-
dential Information whose sensitivity and confidentiality is not obvious.
FORCE MAJEURE. Neither. party shall be held responsible for any delay in performance hereunder arising out of causes beyond its control
and without its fault or negligence. Such causes may include, but not be limited to, fire, unforeseeable strikes, embargoes, Government
requirement, acts of God or of the public enemy, inability to secure transportation or telecommunication facilities, acts or omissions of carri-
ers or other causes beyond their control. If any such contingency occurs, the party injured by the other's inability to perform may elect to
resume operations under the Agreement for the full commitment once the delaying cause ceases, with an option for the injured party to
extend the term of this Agreement for a period not to exceed the length of time the contingency endured. The party experiencing the delay
shall notify the other party immediately of such delay and provide an estimate of time for such delay.
COMPLETE AGREEMENT: DISPUTES. This Exhibit together with the Agreement constitutes the entire agreement between the parties with
respect to the Covered Programs and supersedes all prior or contemporaneous understandings or agreements, written or oral, regarding
such subject matter. It supersedes any contrary terms in any related purchase order, and may only be modified in a written document
signed by the parties. This Agreement (a) is not intended to benefit any third party; (b) may not be changed or modified except by a written
amendment signed by the parties; and (c) does not create an employment, partnership, joint venture, representative, or other legal or busi-
ness relationship, other than that of independent contractor. This Agreement shall be governed by and construed in accordance with laws of
the State of California, without giving effect to that state's choice of law rules. Any action, proceeding, claim or other litigation related to this
Agreement or the subject matter' hereof shall be brought in federal or state courts located in Orange County, California. In any action be-
tween the parties arising out of or connected with this Agreement, the prevailing party or parties in such action shall be awarded, in addition
to any damages, injunctive or other relief, their costs and expenses, including, but not limited to, court costs and reasonable attorneys` fees.
"Including" means including without limitation.
ASSIGNMENT. Neither of the parties may assign its rights or obligations under this Agreement without the prior written consent of the other,
which shall not be unreasonably withheld; provided, however, in the event that either party transfers substantially all of its assets or stock to
a third party, such party may assign its obligations' and rights under this Agreement to such third party. Subject to the foregoing, this Agree-
ment will be binding upon and will inure to the benefit of the parties and their respective permitted successors and assigns.
NOTICES. All notices related to this Agreement shall be in writing and shall be sufficient in all respects if delivered personally, by email, by
electronic facsimile, or by registered or certified mail, postage prepaid, addressed to a party as indicated in this Agreement. Notice shall be --
deemed to have been given upon transmittal thereof;as to communications, which are personally delivered or transmitted by electronic"fac-
simile.and, as to communications made by United -States'mail,' on the third (3'd) day after mailing. A party's address may be changed by
notice under this section. City agrees to keep the names of its Designated Representatives up to date.
WAIVERS. No waiver shall be effective unless -in writing ;and :signed by the party making the waiver. No.action taken pursuant to this Agree-
ment, including any investigation by any party hereto,-, shall :constitute 'a waiver of any representation, warranty, covenant, or agreement
contained herein or in any ancillary document. The waiver by any party hereto of a breach of this Agreement shall not constitute a waiver:of <-
any other breach; no failure, forbearance or delay on the part of the non -defaulting party to exercise any rights or remedies shall operate or
be construed as a waiver thereof. Any single or partial exercise by the non -defaulting party of any rights or remedies shall not preclude any
other or further exercise of that right or remedy or the exercise of any other rights or remedies. GSC's allowance, whether intentional or
unintentional, of City's use of the Covered Programs beyond the period of City's license, or GSC's acceptance of any payments by City
following the occurrence of an event of default, does not extend the term or in any way reduce or waive GSC's rights under this Agreement,
-or reduce or waive City's obligation to pay for such usage.
SEVERABILITy. A determination that any provision of this Agreement is invalid in
provisions found not to be invalid.
BY THE AUTHORIZED SIGNATURE BELOW, CITY ACKNOWLEDGES THE
City of nt gton Be h GenS
Jo
By:By: I
Print Name: t ��� t' Print N m
Print Title: C Print Title:
APPROVED AS TO FORM iF'I S/bt.
ZDd FERpAtttto
Tey
, it"rKe Ieptlty Cit
or in part shall not affect the enforceability of those
TERMS AND
division of STRATACARV,,NVC., a