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HomeMy WebLinkAboutN. Harris Computer Corporation - 2017-12-18Dept. ID FN 18-001 Page 1 of 4 Meeting Date: 1/16/2018 lqwp,o -7--0 CITY OF HUNTINGTON BEACH REQUEST FOR. CITY COUNCIL ACTION MEETING DATE: 1/16/2018 SUBMITTED TO: Honorable Mayor and City Council Members SUBMITTED BY: Fred A. Wilson, City Manager PREPARED BY: Chuck Adams, Interim Chief Financial Officer SUBJECT: Approve and authorize execution of three contracts with N. Harris Computer Corporation for replacement of the City's Cashiering System and Software License, in the amount of $491,020 and approve first year of maintenance and support for $38,800 Statement of Issue: The City's current cashiering software is responsible for the processing of approximately $130 million in annual revenue for items such as utility bill payments, recreational classes, transient occupancy taxes, development permits and parking revenue. The current system is 14 years old and is no longer supported by the vendor. A Request for Proposal for a new system was issued on October 4, 2016, notifying 30 prospective bidders. Staff is recommending iNovah's cashiering software, a Harris Computer Corporation company. On December 18, 2017, the City Council requested that staff further explore and define certain terms and conditions of the contracts. Staff has conducted further discussions with the vendor and has amended contract language accordingly, among other items. The Analysis section of this report reflects a comprehensive discussion of the status of each Council requested follow-up action. Financial Impact: The cost to purchase and implement the system is $491,020. The first year's maintenance and support cost is $38,800, for a total cost of $529,820. Budgeted funds are available in the Non - Departmental account 10040101.84000 for equipment replacement. Future costs of maintenance and support will be included in future budget submittals. The cost of the system will be allocated to operating funds based on FY 15/16 revenues processed through the current cashiering system. FUND Amount General Fund 56.4% $298,818.48 Water Fund 27.8% $147,289.96 Sewer Fund 7.7% $40,796.14 Refuse Fund 8.1 % $42,915.42 TOTAL 100% $529,820 Item 10. - 1 HB -254- Dept. ID FN 18-001 Page 2 of 4 Meeting Date: 1/16/2018 Recommended Action: Approve and authorize the Mayor and City Clerk to execute "Software Implementation Services Agreement," "Support and Maintenance Agreement," and "Software License Agreement" with N. Harris Computer Corporation for replacement of the City's Cashiering System and Software License, in the amount of $491,020 and approve the first year of maintenance and support for $38,800. Alternative Action(s): Do not approve the purchase and instruct staff accordingly. Analysis: Follow up to City Council Discussions at December 18, 2017, Meeting: 1. Council request: For staff to further discuss with the vendor reducing the total cost of the maintenance and support services. Staff response: The vendor is unable to further reduce the maintenance and support cost. It should be noted that the vendor recently reduced the year -one cost to $38,800 from $48,500 (or from 25% of the software development to 20%) and also reduced the annual increase for maintenance and support cost from 5% to 3%. This cost falls in the lower quadrant of industry standards of 18-25%. In addition to Pacific Time Zone business hour technical support for the cashiering software, the vendor will also provide support for each of the 12 interfaces developed to ensure communications with our JDE financial software, CIS Utility Billing, Community Services class registration software, various cash management software, online payment vendors, various Union Bank processes, and our forthcoming Accela ELM software. Currently, the cashiering system reflects 675,000 individual transactions annually. 2. Council request: For staff to ensure that the software maintenance and support agreement is specific as to when the maintenance and support costs begin and clarification on the term of "Go Live." Staff response: The vendor has agreed to modify the language so that it is clear that the maintenance and support costs begin only after the software has been tested, accepted, and placed into the City's production (live) server. The acceptance steps are detailed in the Software Implementation Agreement which document the responsibility of each party and provides that the City has the sole responsibility to accept the software. Please refer to Exhibit 1, Schedule A, "Project Phase Activities." The term "Go Live" is defined in the Software Implementation Agreement as: "the event occurring when the Organization first uses the Software as the Organization's predominant Software." Please refer to Exhibit 1, Section 1.1(e). "Go Live" will be the date that the City (after testing and acceptance) places the software in its production server. 3. Council request: For staff to clarify the last sentence of the software maintenance and support agreement stating "The Support and Maintenance Fees shall increase where a reorganization occurs or due to any additional Licenses or other growth of Organization during the term based upon Harris' then current billing practices." Staff response: This language is only triggered if the City expands the use of the Cashiering software to additional modules, or any other activity which may increase its use and total volume of the Cashiering System's annual receipt transactions beyond 113% of the system's current base of 750,000 transactions. Current volumes are 675,000. Please refer to Exhibit 3, Schedule B "License Fees and Payment Schedule" of the Software License Agreement. HB -255- Item 10. - 2 Dept. ID FN 18-001 Page 3 of 4 Meeting Date: 1/16/2018 4. Council request: For staff to review the Agreements with the City Attorney's Office to ensure that any "clean up language" correctly reflects the City's position. Staff response: The Finance, Information Services, and City Attorney Departments have coordinated to ensure that the contracts reflect the clarifications and changes that were required from the Council meeting of December 18, 2017. Information Services, Finance, and the City Attorney will meet to finalize a new standard form contract for future software support services. 5. Council request: For staff to clarify the billable fees section of the Maintenance and Support Agreement. Staff response: Staff and the Vendor have amended the contract to clearly reflect that billable fees are for reasonable costs associated when the vendor is required to make a physical presence on site at City Hall to resolve an issue. The majority of all troubleshooting and issue resolution is anticipated to be performed remotely by the vendor. However, on the rare occasion that the vendor is required to perform work on site, staff has modified the language to ensure pre -approval of documented and reasonable expenses for airfare, lodging and miscellaneous expenses. Background -The City's current cashiering system, Paypoint, is 14 years old and, no longer supported by the vendor. This requires extensive daily support from the Information Services staff. Paypoint is limited to operate only on older versions of Windows (2000 or prior). Customer Service staff must navigate through numerous screens in order to access account information on the different software systems used within all City departments. In addition, the system is not efficient with the City's current financial system, JD Edwards. This often requires staff to work after hours or to be on call to trouble shoot problems and glitches. System Selection Process — Staff created a committee which included subject matter experts from the Information Services and Finance Departments. This committee worked with an IT consultant to develop a Request for Proposal (RFP) for the purchase and implementation of a new cashiering software system. The proposal included a list of 223 functional requirements that the City requires in an enterprise cashiering system. The city received proposals from four firms: CORE Technologies US eDirect (Neptune POS Systems) DataTech Corporation (NCR Counterpoint) System Innovators (iNovah) Staff began the work of reviewing proposals and short -listing those systems that best fit the City's functional requirements. Of the four proposals received, staff determined that Data Tech Corporation did not meet the City's needs and, therefore, would not warrant further review. The remaining three companies, Neptune, iNovah, and CORE Technologies, were asked to provide on -site demonstrations of their systems. Concurrent to the demonstrations, staff conducted reference checks. After the demonstrations, staff recommended two firms to continue in the process: iNovah and CORE Technologies. Staff reviewed pricing of the final two vendors. CORE Technologies was approximately $450,000 higher than iNovah over a five-year period. Based on the needs of the City, it was determined that iNovah would provide the best level of service. To further validate the committee's recommendation, a final check was performed by evaluating the iNovah software in a real -world environment. Staff visited the City of Anaheim to examine how the system performs in a similar environment. From a functionality standpoint, iNovah was more intuitive, much easier to navigate than the other systems and helped staff create Item 10. - 3 HB -256- Dept. ID FN 18-001 Page 4 of 4 Meeting Date: 1/16/2018 greater efficiencies in their daily work processes. Based on system functionality and long-term cost, staff selected Systems Innovator's iNovah cashiering software and began the process of negotiating final contract terms. iNovah is a N, Harris Computer Corporation company. Implementation and testing of the system is estimated to take between six to nine months from start to the go -live date. Systems Innovator's will provide the ongoing maintenance and support services at 20% of the software cost. This is within industry's standards of 18-25% as provided by technology industry research and consulting firm, The Gartner Group. The ongoing maintenance agreement costs will ensure the support of the systems' twelve custom interfaces, quarterly software maintenance and functionality updates. Toll Free telephone support services, email support service, peripheral device support, and regulatory and payment industry updates, including ongoing PCI compliance updates are also provided. In year one, sixteen hours of dedicated after hours support at no additional charge is available. The first year maintenance and support cost is effective upon acceptance by the City and the software's implementation into our live production environment. Environmental Status: Not applicable. Strategic Plan Goal: Enhance and Maintain City Service Delivery Strengthen Economic and Financial Sustainability Attachment(s): 1. Software Implementation Services Agreement with N. Harris Computer Corporation 2. Support and Maintenance Agreement with N. Harris Computer Corporation 3. Software License Agreement with N. Harris Computer Corporation 4. Software Contract Services Review Sheets HB -257- Item 10. - 4 ATTACHMENT #1 SOFTWARE IMPLEMENTATION SERVICES AGREEMENT THIS SOFTWARE IMPLEMENTATION AGREEMENT made as ofthe 1�dav of- ,�pA_2A>B ("Effective Date"). 13F: rNvI?I N: N. HARRIS COMPUTER CORPORATION (`Il��rris"j - and - THE CITY OF HUNTINGTON BEACH ("Organization") RECITALS The Organization wishes retain 1-larris to perform certain soliware implementation services as set out herein ill respect of certain I-farris software licensed by Organization pursuant to a Soliware License. Agreement entered into between the parties on the same date as the Effective Date. The Organization and Harris agree to enter into three ("s) separate agreements each dealing with a separate aspect of the sofhvare: a software license agreement and a suppart :tnd maintenance agreement each dated the same date as the Effective Date. (the "Software License Agreement" and "Support anal Maintenance Agreement", respectively), and this Software Implementation Services Agreement. NOW TI-IEREFORE, in consideration of the mutual covenants set out in this Agreement and for other good and valuable consideration (the receipt and sufficiency of which is hereby acknowledged), the parties agree as follows: ARTICLE I INTERPRETATION 1,1 Definitions "Throughout this Agreement, ;.xeepl as otherwise expressly provided, the fallowing words and expressions shall have the foliming meanings: (a) "Agreement" and similar expressions mean this Software Implementation Services Agreement, including all of its Schedules and all instruments supplementing, amending or confirming this Agreement. All references to "Articles" or "Sections" mean and refer to the specified Article or Section of this Agreement except where a different agreement is explicitly identified. (b) "Change Order" means any written documentation between the Organization and Harris evidencing their agreement to change particular aspects of this Agreement. (c) "Completion of Services" means that the Software is operational and performing in substantial conformity with the specifications set out herein and as set out in the acceptance testing criteria in the Statement of Work. For purposes of this Agreement, Completion of Services will be deemed to have occurred on the date on which the Organization commences using the Software in a production environment. (d) "Designated Computer System" shall mean the Organization's platform and operating system environment which is specified in the Statement of Work for the installation and operation of the Software. (e) "Go -Live" means the event occurring when the Organization first uses the Software as the Organization's predominant Software. (f) "Required Programs" has the meaning set out in Schedule "A" of the Software License Agreement. (g) "Statement of Work" means the statement of work appended hereto as Schedule "A" delineating, among other things, the Services that will be provided by Harris to Organization pursuant to this Agreement, as such schedule may be amended or modified by mutual specific written agreement of the parties' respective representatives from time to time in accordance with the terms of this Agreement. (h) "Services" has the meaning set out in Section 2.1 hereof. (i) "Software" shall mean the Harris software products listed in Schedule "A". The term "Software" excludes any third party software except where this Agreement explicitly states otherwise. (j) "Third Party Software" shall mean the third party software product, if any, listed in Schedule "A". (k) "Update" means a minor release of the Software which includes minor published modifications or enhancements to the Software related to a bug fix, minor additional functionality or legislative changes. An Update is designated by a change in the right -most digit in the version number (for example, a change from X.1 to X.2). (1) "Upgrade" means a major overhaul of the Software which is a complete new published version of the Software that modifies, revises or alters the Software and adds features, functionality or enhancements to such Software. An Upgrade is designated by a change in the number to the left of the decimal point in the version number (for example, a change from LX to 2.X. -2- Terms not otherwise defined in this Agreement shall have the meaning attributed to it in the, SoflNvare License Agreement executed concurrently with this Agreement, Any discrepancy between a defined term in this Agreement and one in the Soflware License Agreenacnt shall be resolved in favour of the definition in this Agreement, to the extent that there is an inconsistency. 1.2 Schedules 'File Schedules described below and appended to this Agreement shall be deemed to be integral marts of this Agreement. Schedule "A" - Statement of Work Schedule "B" - Pee StruCture & I aymertt Schedule Schedule "C" Sample Form Change Order In the event of any conflict or inconsistency between the terms and conditions in the main body of' this Agreement and the terms and conditions in any Schedule, the terms and conditions of the main body of this Agreement shall control. ARTICLE lI CONSULTING SERVICES 2.1 Harris' Services In order to achieve the Completion of'Se.rvices, Harris acrecs, subject to (lie terms and conditions of this Agreement. to pert,-)rm the following services (the "Services") for the Organization in accordance with the relevant Statement of Work: (a) Oversee rand implement the conversion from the. Orf anization's existing software applications to Harris's Software. (b) Install the Saflware and perflorrn necessary installation and coil tiguration operations. (c) Provide training. (1) Harris recommends a maximum often (10) people in each training class for optimal training. In any training class exceeding ten (10) people. Organization may be assessed an additional charge for additional instructors. (ii) Organization is required to make copi:s of tile training manuals required for the training classes either by photocopy or electronic -3- duplication each of which is subject to the restrictions and obligations contained in this Agreement. (iii) On-line reference documentation is delivered with each release. Organization may print this documentation solely for its internal use. (d) The Statement of Work describes in greater detail the Services, the method by which the Services shall be performed, any acceptance testing required by Organization, and other obligations on the part of the two parties. Despite the foregoing, any warranties or representations on the part of Harris in the Statement of Work are not binding on Harris and are merely provided for information purposes; the only warranties and representations provided by Harris in respect of the Services and this Agreement are found in Article III . 2.2 Performance by Harris (a) Harris's Discretion -- Harris shall determine in its sole discretion the manner and means by which the Services shall be performed, with due consideration of Organization's concerns. Organization acknowledges that Harris has expertise in providing the Services. (b) Conduct on Organization's Premises -- The Services shall be performed with the Organization's full co-operation, on the premises of the Organization or, if agreed to by both parties, at an alternative location. Harris agrees, while working on the Organization's premises, that Harris and its personnel shall observe the Organization's rules and policies, administrative codes, and ethics codes relating to security thereof, access to or use of all or part of the Organization's premises and any of the Organization's property, including proprietary and confidential information, so long as Harris is provided with such rules, policies, and codes in advance of Harris's and its personnel's attendance at Organization's premises. (c) Independence -- As an independent consultant, Organization retains Harris on an independent contractor basis and not as an employee. (d) Maintenance and Inspection -- Harris shall maintain complete and accurate records with respect to all costs and expenses incurred under this Agreement. All such records shall be clearly identifiable. Harris shall allow a representative of Organization, no more than once in a calendar year, during normal business hours and with adequate notice, to examine, audit, and make transcripts or copies of such records and any other documents created, pursuant to the Agreement. Harris shall allow inspection of all work, data, documents, proceedings, and activities related to the agreement for a period of two (2) years from the date of final payment under this Agreement unless Harris is required to maintain such records pursuant to any law or regulation for a further period of time, after which Harris shall be permitted to destroy all such information. -4- 2.3 Performance by Otyaniption (a) Co-operation by Organization -- The Organization acknowledges that the success and timeliness of the implementation process shall require the active participation and collaboration of the Organization and its staff` and agrees to act reasonably and co-operate ('ally with i (arris to achieve the Completion of'Services. (b) Required Programs and 1-lardwatl' -- The OrganizatiOn acknowledges Oat in order for 1-1a1-ris 10 supply the Services that the Required Programs shall be installed and operational prior to Harris beginning the Services. The Organization further acknowledges that the operation of the Software requires the Organization's hardware to be of suffic-ient duality, condition and repair, and the• Organization ,agrees to maintain its harciwarc in the appropriate duality, condition and repair at its sole: cost and expense, in order to permit Harris to provide the Services. If the Organization has not properly installed the Required Programs and/or the hardware is of insufficient quality, condition and repair, Harris shall have the right to suspend the Services and the related scheduled time frames until Organization complies with the requirements of this Section 2.3(b) to Harris's reasonable. satisfaction. (c) Project Manager -- The Organization shall appoint a project manager (the -project Manager") who shall work closely with Harris to facilitate the successful completion of the implementation process and who shall be responsible for supervising the staff of the Organization and their co-operation with and participation in such process. The Project Manabou's duties shall be delineated in the Statement pf' Work. (d) Compliance — The Organization shall comply With all applicable local, stale, federal, and foreign laws, treaties, regulations, and conventions in connection with its use of the Software, including without littlitation those related to privacy: clectronie communications and anti-spam legislation. Organization is responsible for ensuring that its configuration and use of the Software to store or process credit card data complies with applicable Payment Card industry Data Security Standards ("PCI DSS") and The Fair and Accurate Credit Transactions Act ("FACTA") requirements and shall not store credit card and social security data in the system except in the designated encrypted fields for such data. (c) Additional Organization Obligations (i) Organization shall install all Updates within a reasonable period of time of Organ ization's notification of their availability. However, any Update or other fix or correction designated as "critical" by Harris shall be implemented by Organization within thirty (30) days of notification to the Organization by 1-larris of its availability. (ii) Organization shall notify Harris of suspected defects in any of the Software supplied by Harris. Organization shall provide, upon Harris's - 5 - request, additional data deemed necessary or desirable by Harris to reproduce the environment in which such defect occurred. (iii) Organization shall allow the use of online diagnostics on the Software supplied by Harris to Organization, if required by Harris during problem diagnosis. Organization shall provide to Harris, at Organization's expense, access to the Designated Computer System via the Organization's firewall to communications software (e.g. PC Anywhere, WebEx, Web Demo). (iv) Organization shall ensure that its personnel are, at relevant stages of the project, educated and trained in the proper use of the Software in accordance with applicable Harris manuals and instructions. If Organization's personnel are not properly trained as mutually determined by Harris and Organization, acting reasonably, Organization agrees that such personnel will be trained by Harris or Organization within fifteen (15) days of determination. If Organization desires Harris to perform the required training then Harris shall be compensated in accordance with this Agreement. (v) Organization is solely responsible for the ongoing backup of all data. Organization shall establish proper backup procedures necessary to replace critical Organizational data in the event of loss or damage to such data from any cause. Organization acknowledges that Harris is not backing up any data under this Agreement and that any loss of data as a result of the Services is entirely an issue to be addressed by Organization and not Harris. (vi) Organization shall provide Harris with access to qualified functional or technical personnel to aid in diagnosis and to assist in repair of the Software in the event of error, defect or malfunction. (vii) Organization shall execute a form provided by Harris that states that the Services have achieved Go -Live status and/or Completion of Services. Where the Organization has not executed such a form and has provided no information as required under subsection (viii) (B) below, then the Organization is deemed to have executed such document and Go -Live and/or Completion of Services (as applicable) is deemed to have occurred on the date the form was first provided to Organization. (viii) Organization shall have the sole responsibility for: (A) the performance of any tests it deems necessary prior to the use of the Software; (B) providing information to Harris in respect of a form provided under subsection (vii) above where Organization disputes that the Services have achieved either Go -Live and/or Completion of ;E Services. The information must be detailed enough to specifically document what functionality that is cicscribecl in the Statement of Work has not been met, whiol1 acceptance tests' failures demonstrated that such ftrnetion.rlity ryas not met, and the anticipated outcome irom Organization regarding, the acceptance: test that was per Formed. Once any disputed issues are resolved to Harris's reasonable satisfaction, Organization shall he pr•esentcd the applicable form again and shall execute such Corm within ten ( 10) days, the failure of which shall deem the form to have been executed on the date first provided to Organization. Organization agrees that a dispute can only relate to issues that is directly related to nn acceptance test and is detailed in the Statenient of Work; (C) assuring proper, Designated f nsnputcr System iIIsIll llatiolr, configuration, verification, audit controls and operating methods; (D) implementing proper procedures to assure the accuracy of any input and the reviewing ofoutput, and implementing procedures to restart the Designated Computer System for recovery in the event of malfunction/error; (E) timely upgrade. and keeping current all third party releases and/or software/hardware products and related license rights to meet the requirements of the Software; and (F) maintaining proper configuration settings of the SOftware to ensure use of the Software ill compliance with applicable laws, including performing re -validation of configuration settings Following the installation ofany Updates or Upgrades. ARTICLE Ill RrPRI SL'NTATIONS AND WARRANTIES 3.1 Warranty Harris warrants that the Services will be performed in a professional and diligent manner by personnel who are competent in performing their individual tasks. l-l�unris shall have no liability hereunder if the Organization has modified the Software in any manner without the prior written consent of Harris. -7- 3.2 No Other Warranties TO THE GREATEST EXTE?NT PERMITTED BY LAW, EXCEPT FOR THE LIN-11`I'ED WARRANTY PROVIDED IN SECTION 3.1, THE SERVICES ARF_ PROVIDED TO THE ORGANIZATION "AS IS" AND THERE ARE NO WARRAN`I'IE S, REPRESENTATIONS OR CONDITIONS, EXPRPSSEI) OR IMPLIED, WRITTEN OR ORAL, ARISING 13Y STATU'l-E, OPERATION 01' LAW, COURSE OF DEALING, USAGE OF TRADE OR 01TIL'-RWISE, REGARDING THEM OR ANY OTHER PRODUCT', SERVICE OR MATERIAL, PROVIDED ITEREUNDER OR IN CONNECTION HEREWITH. HARRIS, ITS LICENSORS AND SUPPLIERS DISCLAIM ANY IMPLIED WARRAN-rEES OR CONDITIONS REGARDING THE SERVICES, SOFTWARE AND MATERIALS PROVIDED FIEREUNDFR OR IN CONNECTION INCLUDING, BUT NOT LIMITED TO. VARRANTIES OF MERCHANTABLE QUALITY, MERCHANI'ABILITY, DURABILITY, 1'IT'NESS FOR A PARTICULAR PURPOSE,'r1TLE OR NON -INFRINGEMENT. HARRIS DOES NOT REMPSENT OR WARRANT ITIAT THE SERVICES SHALL MER7 ANY OR ALI., OF THE ORGANIZATION'S PARTICULAR REQUIREMENTS, OR THAT A i.L. ERRORS OR DEFECTS IN Tl-IE SOFTWARE CAN BE FOUND OR CORRECTED. NO AGREEWNTS VARYING OR EXTENDING ANY EXPRESS WARRANTIES SET FORTH IN THIS AGREENIEiNT SHALL 13E BINDING ON L'ITLII?R PARTY UNLESS IN WRITING AND SIGNED BY AN AUTHORIZED SIGNING OFFICER OF HARRIS. ARTICLE IV FEES AND PAYMENTS 4.1 Fees and Pavments (a) The Organization agrees to pay Harris total fees as delineated in Schedule "B". The fee structure and payment schedule is outlined in the attached Schedule "3,'. The fees set out in this Agreement arc exclusive of taxes. Organization agrees to pay all foreign, federal, state, provincial, county or local income taxes, value added taxes, use, personal, properly, sales and any other taxes, tariff, duty or - similar charges that nta), be levied by a taxing authority (excluding taxes on Harris' net income). (b) The Organization shall reimburse I'lat-65 fa,' (I) its direct travel expenses including, but not limited to hotel, airfure. cur rental, tolls, parking and airline and travel agent Ices; (2) a travel time rate of $75.00 per Hour; (3) a per diem rate of $70.00 for week days and a $125.00 for weekends and statutory holidays that includes all meal, food and telecommunications expenses (no receipts will be provided); (d) a mileage charge based on the current Internal Revenue Service recommended rate per mile; and (5) all other reasonable expenses incurred lit the perl'onnance. of Harris's duties including courier services and documentation copying or production. These costs are excluded from the total fees amount -8- described in Section 4.1 (a). These fees and rates and those expenses that are reimbursable are specific to the first Statement of Wort: agreed to by the parties and thereafter the rates, Pecs, and applicable expenses shall be set separately for each then applicable .Statement of Work as negotiated by the parties. (c) During the term of this Agreement, Harris shall; trotll lithe to time, deliver invoices to Organization. Each invoice delivered to Organization by Harris shall be due and payable upon receipt thereof by Organization. (d) In the event Organization fails to pay all or any portion ol'an invoice on or before thirty (30) days after the date it becomes due, in addition to all other remedies Harris has Under this Agreement or otherwise, Harris shall have the option to suspend or terminate all Services under this Agreement. Suspension or termination of any such Services shall not relieve the Organization of its obligation to pay its outstanding invoices and other ongoing fees, including any applicable late charges. Where the Services are suspended, all related scheduled time frames shall be suspended and extended as necessary- (c) Any fees based on a fixed price agreerilent are provided based on the Statement of Work in existence as of Vie Effective Date. Any delays that result from Organizalion's actions, inaction, or requests for iTiodifications — Xvllether incorporated into a Change Order or not — will affect the basis on which Harris provided the fixed price; and as such, Harris reserves the right to charge for additional tinge and expenses where the duration of the Statement of Work is extended as a result of Organ ization's actions, inaction, or requests for modifications. 4.2 Change Orders With respect to any proposed changes to the Services defined by this Agreement, the parties will cooperate in good faith to execute Change Orders ill respect thereof and will not unreasonably wwithhold approval of such proposed changes. If either party causes or requests a change that. in the reasonable opinion of the other party, materially impacts the scope of the parties' work effort required under this Agreement, such as, but not limited to, changes in the allocation of the resources of the Organization and of Harris applied to a task, changes in completion schedules for individual tasks or for overall implementation, and changes in staffing that require it party to provide additional N ork hours, the other party may propose a change to ever the additional work effort required of it. Approval of any such proposed changes will not be unreasonably withheld (it being acknowledged that any such material changes may require modifications to the consideration paid, and timelines governing. the Services), and any disputes regarding changes shall be handled initially by discussions between the parties which will he convened in good faith by the parties to resolve any such matters in dispute. A sample change order is presented in Schedule "C". -9- ARTICLE V REMEDIES AND LIABILITY 5. 1 Remedies anti lljaLi jL Termination of this Agreement shall not afTect any right of action of either party arising from anything which was done or not done, as the case may be, prior to the termination inking effect. (b) The organization and Harris recognize that circumstances may arise entitling the. Organization to damages for breach or other fault on the part of Harris arising From this Agreement. The parties agree that in all such circumstances the Organization's remedies and Harris's liabilities will be limited as set forth below and that these provisions will survive notwithstanding the termination or Other discharge of the obligutions, of the parties tinder this Agreement. (i) EXCE.-PT FOR DAMAGES ARISING OUT OF (a) DAMAGE '1`0 TANGIBLE PROPERTY OR (b) INJURY OR DEA-1-1-1 TO PERSONS, BOTH PARTIES AGREE THAT TO THE GREATEST EXTENT P E R M I'l-11, D BN' APPLICABLE LAW. TH E AGGREGATE LIABILITY OF HARRIS, ITS AFFILIATE'S AND EACH OF THEIR RESPECTIVE DIRECTORS, OFFICERS, EMPLOYETIS, AND ,SHAREHOLDERS AND ORGANIZATION'S EXCLUSIVE REMEDY wrl-H RESPECT TO THE SERVICES AND ANY OTHER PRODUCTS, MATERIALS OR SERVICES SUPPLIED BY HARRIS IN CONNECT'ION WITH THIS AGREEMENT' FOR DAMAGES FOR ANY CAUSE AND REGARDLESS OF THE CAUSE OF ACTION, SHALL NOT EXCEF-D, IN THE AGGREGATE. THE, FEES PAID BY ORGANIZATION TO HARRIS PURSUANT TO THE RELEVANT STATENI[ENT OF WORK. (ii) IN ADDITION TO THE FOREGOING, 1.0 THE GREATEST EXTEXI_ PERMITTED BY APPLICABLE LAW. IN NO EVENT SHALL HARRIS, ITS AFFILIATES AND EACH OF THEIR RESPECTIVE DIRECTORS, OFFICERS, EMPLOYEES AND SHAREHOLDERS BE LIABLE TO ORGANIZATION FOR ANY CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY: PUNITIVE, SPECIAL, OR AGGRAVATED DAMAGES WHATSOEVER, INCLUDING wrrvioirr LINITTATION FOR LOSS OF REVENUE, LOSS OF PRO1711-S, FAILURE.TO REALIZE FXPECTED SAVINGS, COSTS OF SUBSTITUTE GOODS OR SERVICES, LOSS OF DATA, OR LOSS OF 13LJSINESS OPPORTUNITY ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT, (iii) CLAUSES (a) AND (b) SHALL APPLY IN RESPECT OF ANY CLAIM, DEMAND, ACTION, OR PROCEEDING I IOWSOEVER ARISING BY A PARTY IRRESPECTIVE OF THE NATURE OF "THE EUR CAUSE OF ACTION UNDERLYING SUCH CLAIM, DEMAND, ACTION, OR PROCEEDING INCLUDING, BUT NOT LIMITED TO, BREACH OF CONTRACT, RESCISSION OF CONTRACT (INCLUDING FUNDAMENTAL BREACH), TORT (INCLUDING NEGLIGENCE), BREACH OF TRUST, OR BREACH OF FIDUCIARY DUTY, EVEN IF HARRIS HAS BEEN ADVISED OF THE LIKELIHOOD OF THE OCCURRENCE OF SUCH DAMAGES OR SUCH LOSS OR DAMAGE IS FORSEEABLE AND NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY. 5.2 Allocation of Risk The parties agree that the limited warranties, disclaimers and limitation of liability as set out in in this Agreement are fundamental elements of the basis of bargain between Harris and Organization and set forth an allocation of risk reflected in the fees and payments hereunder. 5.3 Remedies Where rernedies are expressly afforded by this Agreement, such remedies are intended by the parties to be the sole and exclusive rernedies of the Organization for liabilities of Harris arising out of or in connection with this Agreement, notwithstanding any remedy otherwise available at law or in equity. ARTICLE VI GENERAL 6.1 Force Maieure Except for Organization's failure to make any payments owing under this Agreement when due, neither party shall be liable for delay or failure in performance resulting frorn acts beyond the control of such party including, but not limited to, acts of God, acts of war or of the public enemy, riots, fire, flood, or other natural disaster, acts of government, strike, walkout, communication line or power failure, failure in operability or destruction of the Organization's computer, or failure or inoperability of any software other than the Software. Any applicable delivery schedule shall be extended by a period of time equal to the time lost because of any such delay. 6.2 Confidentiality The parties each acknowledge that each party may receive Confidential Information from the other party or otherwise in connection with this Agreement. Each of the parties agree: (i) to maintain the Confidential Information of the other party in confidence and to take all reasonable steps, which shall be no less than those steps it takes to protect its own confidential and proprietary information, to protect the Confidential Information of the other party from unauthorized use, disclosure, copying or publication; not to use the Confidential Information of the other party other than in the course of exercising its rights or performing its obligations under this Agreement; not to disclose or release such Confidential Information except to the extent required by application law or during the courses of or in connection with any litigation, arbitration or other proceeding based upon or in connection with the subject matter of this Agreement, provided that the receiving party shall first give reasonable notice to the disclosing party prior to such disclosure so that the disclosing party may obtain a protective order or equivalent and provided that the receiving party shall comply with any such protective order or equivalent; (iv) not to disclose or release the Confidential Information to any third person without the prior written consent of the disclosing party, except for authorized employees or agents of the receiving party who have a need to know such information for the purpose of performance under this Agreement and exercising its rights under this Agreement, and who are bound by confidentiality obligations at least as protective of the disclosing party's Confidential Information as this Agreement; and (v) to take all appropriate action, whether by instruction, agreement or otherwise, to ensure that employees and third persons under the direction or control or in any contractual privity with the receiving party, who have access to Confidential Information do not disclose or use, directly or indirectly, the Confidential Information for any purpose other than for performing obligations or exercising rights of the receiving panty under this Agreement, without first obtaining the written consent of the disclosing party. 6.3 Cancellation and Termination (a) Cancellation of any on -site Services by Organization is allowed for any reason if done in writing more than fourteen (14) days in advance of such Services. Organization will be billed for any non -recoverable direct costs incurred by Harris that result from a cancellation by Organization with fourteen (14) days or less of scheduled on -site Services. Additionally, Organization hereby acknowledges that cancellation of on -site Services means that such on -site Services will be rescheduled as Harris's then current schedule permits. Harris is not responsible for any delay in Organization's project resulting from Organization's cancellation of Services. If upon Harris arrival, the Organization is not adequately prepared or has not completed the assigned tasks for such visit by Harris, then the Organization will be billed 100% of the on -site fee and scheduled on -site Services can be cancelled by Harris. If additional Services are -12- required because the Organization was not adequately prepared, Harris will provide a Change Order to the Organization for the additional Services. (b) This Agreement shall commence on the Effective Date and shall expire upon the Completion of Services. The parties may at any time revive this Agreement upon mutual written agreement so that it may be used in relation to a new Statement of Work. (c) If Harris should neglect to perform the Services properly or otherwise fail to comply with the requirements of this Agreement, the Organization must notify Harris in writing of such default (a ".Default Notice"). Upon receipt of a Default Notice, Harris must either correct the default at no additional cost to the Organization, or issue a written notice of its own disputing the alleged default, in either case within thirty (30) days immediately following receipt of a Default Notice. If Harris fails to (i) issue a notice disputing the alleged default within such thirty (30) day period; or (ii) correct the default within ninety (90) days following receipt of the Default Notice, effective upon written notice to Harris the Organization may terminate the whole of this Agreement or the applicable Statement of Work and in such case the Organization will be responsible for payment to Harris of only that part of the fee earned by Harris for those Services performed up to the time of communication of such notice of termination to Harris. (d) If the Organization should fail to comply with its obligations under this Agreement, Harris must notify the Organization in writing of such default (a "Default Notice"). Upon receipt of a Default Notice, the Organization must correct the default at no additional cost to Harris, or issue a written notice of its own disputing the alleged default, in either case within thirty (30) days immediately following receipt of a Default Notice. If the Organization fails to (i) issue a notice disputing the alleged default within such thirty (30) day period; or (ii) correct the default within ninety (90) days following receipt of the Default Notice, Harris may terminate the whole of this Agreement effective upon written notice to Organization and in such case the Organization will be responsible for payment to Harris of only that part of the fee earned by Harris for that part of the Services performed in accordance with this Agreement up to the time of communication of such notice of termination to the Organization. (e) If Organization has failed to pay the fees or other amounts due in accordance with Article 4.2 then Harris shall have the right to terminate this Agreement effective immediately upon written notice to Organization to that effect. (f) Notwithstanding any other provision of this Agreement, if the Organization breaches (i) any intellectual property right of Harris; or (ii) its confidentiality obligations under Section 6.2, then Harris shall have the right to terminate this Agreement effective immediately upon written notice to Organization to that effect and the license rights granted herein shall immediately terminate. IMIN (g) Either party may terminate this Agreement effective immediately upon written notice to the other party if the other party: (i) becomes insolvent; (ii) becomes the subject of any proceeding under any bankruptcy, insolvency or liquidation law, whether domestic or foreign, and whether voluntary or involuntary, which is not resolved favourably to the subject party within ninety (90) days of commencement thereof; or (iii) becomes subject to property seizure under court order, court injunction or other court order which has a material adverse effect on its ability to perform hereunder. (h) The termination of this Agreement prior to the Completion of Services shall result in the concurrent termination of the Support and Maintenance Agreement and of the Software License Agreement. The termination or expiration of this Agreement following the Completion of Services shall not affect the rights of either party in either the Support and Maintenance Agreement or the Software License Agreement. This Agreement shall automatically terminate in the event that the Software License Agreement or the Support and Maintenance Agreement is terminated or expires. 6.4 Mediation The parties agree to submit any claim, controversy or dispute arising out of or relating to this Agreement or the relationship created by this Agreement to non -binding mediation before bringing a claim, controversy or dispute in a court or before any other tribunal. The mediation is to be conducted by either an individual mediator or a mediator appointed by mediation services mutually agreeable to the parties. Such mediator shall be knowledgeable in software system agreements. The mediation shall take place at a time and location which is also mutually agreeable; provided; however, in no event shall the mediation occur later than ninety (90) days after either party notifies the other of its desire to have a dispute be placed before a mediator. The costs and expenses of mediation, including compensation and expenses of the mediator (and except for the attorneys' fees incurred by either party), is to be shared by the parties equally. If the parties are unable to resolve the claim, controversy or dispute within ninety (90) days after the date either party provides the other notice of mediation, then either party may bring and initiate a legal proceeding to resolve the claim, controversy or dispute unless the time period is extended by a written agreement of the parties. Nothing in this Section shall inhibit a party's right to seek injunctive relief at any time. 6.5 Addresses for Notice Any notice required or permitted to be given to any party to this Agreement shall be given in writing and shall be delivered personally, mailed by prepaid registered post or sent by facsimile to the appropriate address or facsimile number set out below. Any such notice shall be conclusively deemed to have been given and received on the day on which it is delivered or transmitted (or on the next succeeding business day if delivered or received by facsimile after 5:00 p.m. local time on the date of delivery or receipt, or if delivered or received by facsimile on -14- a day other than a business day), if personally delivered or sent by t��csimile or. if mailed, fln the third business day followine, the date of mailing, and addressed, in the case of Harris, to: N. HARRIS COMPUTER CORPORATION 1 Antares Drive, Suite 400 Ottawa, Ontario K2E 8C4 Attention: C10 Telephone: 61-1226-551 1, extension 2149 and in the case of the Organization, to: Cite of Huntington Beach 2000 Main Street Huntington Beach, CA 92649 Attention: .lien Slobojan, Fiscal Services Manager, Telephone: 714-960-8820 With a copy to: jracla'i't?surtcity-hb.[�r: Each paiiy may change its particulars respecting notice, by issuing notice to the Other party in the manner described in this Section 6.5. 6.6 Assignment Neither party may assign any of its rights or duties under this Agreement without the prior written consent of the other party, such consent not to be unreasonably withheld, except that either party may assign to a successor entity in the event of its dissolution, acquisition, sale of substantially all of its assets, merger or other change in legal status. The Agreement shall inure to the benclit of and be binding upon the parties to this Agreement and their respective ,uccessors and permitted assigns. 6.7 Reorpanizat ions The Organization acknowledges that where a "Reorganization" occurs as that term is defined in the Software License Agreement, the same provisions related thereto shalt apply to this Agreement. The application ofa Reorganization ntay result in a change in the fees provided for in these provisions. 6.8 Entire Attreement This Agreement shall constitute the entire agreement between the parties hereto with respect to the matters covered herein. No other understandings, agreements, representations, warranties or other matters, oral or written, purportedly agreed to or represented by or on belialf of Harris by any of its employees or agents, or contained in anv sales materials or brochures, shall be deemed to bind the parties hereto with respect to the subject matter hereof. Organization acknowledges that it is entering into this Agreement solely oil the basis of the representations - 15 - contained herein. However, the parties agree that two other agreements are being, entered into concurrently with this Agreement which are in addition to any of (lie third party agreements detailed herein. 7-hest: two other agreements are the Support and Maintenancc ,Agreement and the SoRN-vare license Agreement, each of which are separate agreements and are binding in their own right and upon their own terms. The terms of this Agreement may not be changed except by an amendment signed by an arthorized representative of each party. No provisions in any purchase orders, or in any other documentation employed by or on behalf of the Organization in connection with this Agreement, regardless of the date of such documentation, will aft'ect the terms of this Agreement, even if' such document is accepted by Harris, with such provisions being deemed deleted. 6.9 Section Pleadings Section and other headings in this Agreement are for reference purposes only, and are. in no ►vay intended to describe, interpret, define or limit the scope or extent of any provision hereof. 6.10 Governing Law This Agreement shal I be gave. -reed by the laws of the State ofCulil'ornia in which Organization is located. 6.11 Trial by Jury Organization and Harris hereby waive, to the fullest extent permitted by applicable law, the right to trial by.jury in any action, proceeding or counterclaim filed by any party, whether in contract, tort or otherwise, relating directly or indirectly to this Agreement or ally acts or omissions of Harris in connection thcrewith or contemplated thereby. 6.12 Invalidity The invalidity or unenforceability of any provision or covenant contained in this Agreement shall not affect the validity or enforceability of any other provision or covenant herein contained and any such invalid provision or covenant shull be deemed modified to the extent necessary in order to render such provision valid and enforceable; if such provision may not be so saved_. it shall be severed and the remainder of this Agreement shall remain in full force and effect. 6.13 Waiver No waiver of any breach of any provision of this Agreement shall constitute a waiver of"any prior, concurrent, or subsequent breach ofthe same or any other provisions hereof. and no waiver shrill be effective unless made in writing and signed by an authorized representative. of the waiving party. 6.14 Counterparts 'This Agreement may be executed in cuiuiterparts (whether by facsimile or PDF 9Wd1 signature or otherwise), each of which when so executed shall constitute an original and all of which together shall constitute one and the same instrument. 6.15 Survival Article 1, Section 3.2, Section 4.1 and Articles V and VI and any other provisions which are required to ensure that the parties fully exercise their rights and obligations hereunder shall survive the termination and/or expiration of this Agreement. 6.16 Competitive laid Organization has conducted a competitive evaluation and has concluded such efforts with this negotiated Agreement (including any addenda hereto); therefore, this Agreement may serve as the basis for similar agrcements whereby other entities may contract separately with Harris. Organization agrees that Harris may disclose all or any portion of this Agreement to any of its current or prospective customers. 6.17 Further Assurances The parties shall do all such things and provide all such reasonable assurances as may be required to consummate the transactions contemplated hereby, and each party shall provide such further documents or instruments required by any other party as may be reasonably necessary or desirable to effect the purposes of this Agreement and carry out its provisions. 6.18 Currency All amounts specified in this Agreement shall be in United Slates currency. EVA 6.19 Relationship The parties are and shall at all times remain, independent contractors in the performance of this Agreement and nothing herein shall be deemed to create a joint venture, partnership or agency relationship between the parties. Neither party will have the power to bind the other party or to contract in the name ofor create any liability against the other party in any wily for any purpose. Neither party will be responsible for the acts or defaults of the other party or of those for whom the other party is in law responsible. 6.20 Equitable Relief Organization acknowledges and agrees that it would be difficult to compute (lie monetary loss to Harris arising fi-om it breach or threatened breach of this Agreement and that, accordingly, Harris will be entitled to specific performance, injunctive or other equitable relief in addition to, or instead of monetary damages in the event of a breach or threatened breach of this Agreement by Organization. 6.21 Language The parties confirm than it is their wish that this Agreement as well as all other documents relating to this Agreement, including notices, be drawn up in English only. Les parties aux presentcs conferment que c'est lcur volon(d clue la pr6sente convention de memc Clue taus les documents, y compris les avis, s'y rattaehanl, soient rediges cn Anglais seulement, -18- IN WITNESS WI.IEREOF the parties hereto have duly cxecutt;d this; Software Implemenn tatio Services Agreement to be cft'e.ctive as of the Effective Date first written above. CONSULTANT. SVS'I'r.M INNOVATORS, A DIVISION OF N. HARRIS COMPUTER CORPORATION C(IMPAN'i NAME. By: nan,a S: (circle uu8) Chairman) esidcnt icc Presidullt AND By: �©/2 �D 2CU�4RAJca/ pint name ITS: (circicn,tanciw olliccreAsst. �cc,� ar+ - Trcasuier CITY OF HUNTINGTON - a ACH' municipal corporatioNq'illepate ot•)Afornia Mayor RE.0 IV " ND I=11,,1.: City Clerk `tsS 1124115 INITIATED AND APPROVED: iiief kliOfiice;r RIM " D AI'1'ROVED.. Cityy a jer W APPROVED AS • - 19- Schedule "A" Statement of Work This Statement of Work ("SOW") is subject to all terms and conditions of the "SOFTWARE IMPLEMENTATION SERVICES AGREEMENT" (the "Agreement") between Organization ("Customer"), and Harris, with an Effective Date of 09/19r2017. The parties have entered into the Agreement for the provision of certain services and deliverables to Customer. All terms of the Agreement arc incorporated herein by this reference. In the event of a conflict, the terms of the Agreement control over the terms of this SOW. The Customer has requested the following professional services to implement iNovah. Harris will use its extensive cashiering experience, Customer knowledge and industry expertise to facilitate the implementation and delivery of software and services for the Customer as defined within this SOW. System innovators will work closely with the Customer to manage the SOW and ensure success of the overall project. The Services described in this SOW are based on a list of documented assumptions which have a direct correlation to proiect scope and duration. Changes to proiect scope and/or duration effectively alter this SOW and will be processed in accordance with the project Change Control ('`PCR") procedure as described herein. Project Scope The following table represents a summary of the Software and Services "(Project Scope)" to be delivered by System Innovators as part of this SOW. 'rhe City will select which of the following tn•-dules to implement during the planning stage. Software Module Description Assumption iNovah Software Modules 1 iNovah Application— latcst version lwllhout modifications Basc Software Version up t0 750,000 receipts. iNovah Integrations Inlerfcrcc� eUlorltrlc�s} 1 JDE GL Expon Batch Export I RPS Payment Import Iateh Import 1 Union [lank Import Batch Import I Official Payments Import Batch Import I Cummins Cash (Manager Impart Batch Import I CIS Infinity Interface Iteal'Itme I JDE GI_ R. Activity Validation Reel Time for manual GL strings entered into iNovah I JDf Billing Interface Rcal-Time I Accela Interface Real=Time I RecTrack Interface Real -Time I invoice Cloud Integration (Credit Card) Real -Tillie 1 Union Bank linage Cash Letter Batch ICL Professional Services In Scope Deliveq Approach Consulting, Development, and Training Select one: N Yes O Onsite Support Business Process & Technical Assessment O No O Delivered Remotely N Combination of Onsite and Remote Base iNovah Software Installation N Yes Always Delivered Remotely and Database Configuration O No iNovah System Administration N Yes Training and Configuration Always Delivered at the Customer's Site Workshop O No N Yes Development of iNovall Integrations Always Delivered Remotely El No Select one: N Yes O Onsite Support Unit and System Testing O No O Delivered Remotely N Combination of Onsite and Remote Always Delivered at Customer's Site as either End User Training N Yes (select one) (Cashier/Supervisor) O No O System Innovators Lead Training N Customer Lead Training (i.e. Train -the -Trainer) N Yes Select one: Onsite Production Turnover/Go-Live Support O No N Onsite Support O Delivered Remotely ( I ) Project Deliverables and Activities are only appiicante ror --in )cope- r es n V1CbWV' a Proieet Overview S;stcm Innovators will provide cashiering software ("iNovah") to the Customer for the collection of payments. System Innovators will also provide project management, consulting, configuration, development, software installation, training, and go -live support services as defined in SOW. Timeline System Innovators will work closely with the Customer to manage the SOW and ensure success of the overall project. System Innovators expects the planning, design, development, testing„ training, and go -live phases to take approximately 180 days based on the following assumptions and the use of best practices established through similar implementations. ate ,`'t �,�"�a tti�*'. � 4� rP* �d,+'d4 . �. ,' •+`J� off' Pm tot PIWte ImUlts vc►aH nrt _ I { twrrttwlend teMeeulfatdlkatkn Cnstkn .�_ -.t-- — Analyst A.w.,�wrt wart.ho� • f _ �- :� j - -. s Wstln syttemcwoWaMenontlltnMTrslrd • - —�-- -- D"Op Mime" D" 10PI ser test 14nnhlhn Acu►YutTMWI i _. 1 I r - - - VIM 1 ILL 1 1 , • W.0 m".r....N.tr, rre•+W s-..7 e,ww r+n.wea Mara. Sample iNovah Project Timeline Assumntions The following assumptions have been made for this project; I . The following Customer resources will be available to work on this project: • Executive sponsor • Project Manager — minimum of 50% of time allocated to iNovah project • Payment processing subject matter expert • F-lost system subject matter expert • iNovah administrator • Network administrator 2. A high-speed remote VPN connection to iNovah is available for testing and production support. 3. The Customer is responsible for providing servers, workstations and third party software that meet the system requirements per Schedule "A" of the Software License Agreement. 4. 'The Customer is responsible for the configuration of servers, workstations, networks and third party software. 5. System Innovators stuff will be provided with workspace for up to lwo people when performing onsite services. The workspace will be equipped with a connection and access rights to the Customer's network. G. System Innovators staff will have console access to iNovah servers when Performing services onsite. 7. The Customer will provide the services described in this SOW in a timely fashion to allow System Innovators to meet agreed upon schedules. 8. To enable an interface to iNovah, the Customer or Customer's vendor will provide an application programming interface (API) to all applications to be interfaced. 9. The Customer is responsible for working with the Customer's Staff andlor the Customer's Vendor to provide System innovators the latest versions of technical documentation / specifications, testing material, and resources. 0.1"he Customer yvill provide a test and production environment for ►Novak. Note: An additional QA/training environment is recommended for larger projects. System innovators Deliverables Based on Project Scope, System Innovators will provide the following standtvd products and services: Phase Deliverable Description Initiate Project Kick -Off Initial meeting to introduce project seam members, ol�lec.ives, and nest steps And)'& iNovah Project Plan Final iNovah Project Inipleme.ntation plan and Design Assessment Workshop Meeting at Customer facilities to identify business requirements Functional and Integration Documented requirements for iNovah Specifications configuration and integration development iNovah Installation in Test Latest iNovah software version, without Environment modifications, in a test environment at Customer facilities Configuration Workshop Systern Innovators lead Configuration Workshop for up to (8) Customer representatives (sut�lcct matter experts and iNovah administrators.) System Administration Training System Innovators lead System Administration class for tip io eight (8) Customer representatives (iNovala administrators.). J Develop iNovah Integrations Delivery of in scope iNovah Integrations per specifications Deploy iNovah End -User Training End -user trainii?g for iNovah users per Project Scopc section of this SOW Transition Production Support Production support at iNovah production go -live Project Phase Activities Based on Project Scope, System Innovators' and the Customer will responsible for completing the following activities. Service Responsibility Activity System The Shared Innovators Customer Overall Project Management x Overall Change Management x Managing all System Innovators personnel assigned to the project x Managing all Customers personnel assigned to the project x Managing Customer's Vendor resources; including escalation x Coordinating; schedule changes with the System Innovators Project x Manager Managing the project schedule and reporting variances x Managing the activities assigned to Customer in this SOW x Coordinating; and participating in project related calls and x meetings Providing weekly progress reports to the Customer Project x Manager Reviewing and providing feedback on weekly progress reports x X Coordinating delivery of all Hardware and Software x 7Finaifizem Innovators resource plan and delivery resources X uctorncr's resource plan and delivery resources x Courdinale the project kick-off meeting x Define project governance structure and align implementation methodology x Share Customer's Proiect Plan, if applicable. (i,c, iNovah rollout in conjunctiL)n with EPR deployment) x Create the iNovah Project Platt X Develop and Publish Assessment Agenda X Conduct Kick-off Meeting X Schedule resources and manage logistics for Assessment Workshop per agreed upon schedule x Peripheral hardware, identified in the Agreement, delivered to Customer`s facilities x Provision VPN access to Test Fnvironments Lead workshops to gather design decisions x X Attend workshops with appropriate resources with authority to make design decisions x Ensure appropriate Customer representation in workshops x Make key design decision decisions around process and configuration X Documenting configuration requirements in functional specifications X Documenting recommendations Im site preparation and infrastructure changes X Coordinating delivery of all hardware and software with the Customer X verifying acceptance of all delivered products and services X Coordinating the delivery of all Software warranty ser%6ces and X Hardware Support Services Provide V N access to the production system for access by System x Innovators (if allo►ved) Coordinating the collection of information for tailoring, customization Y and configuration requirements Provide documented Acceptance Test Plan X Reviewing an Acceptance 'rest Plan provided by the Customer x Provide the business process and technical requirements for ihovah X solution Conduct System Administration class at the Customer`s facility X Attendance of Customer's representatives to the System Training class X Conduct System Configuration Workshop class at the CUStolTiC]"s x raci city Attendance of Customer's representatives to the System Configuration X Workshop class Provide printed copies of reference or training materials X Modify software routines within iNovah to handle input devices x included in the functional specifications Modify software routines within iNovah to call interface routines X included in the technical specifications Input all parameters in ihovah maintenance tables and configuration files required to create the configuration included in the Functional x Specification Provide technical specifications For each type of callable XML based X Web Services Aid in design of callable Web Service(s) to retrieve and post the Customer's account information from XML based documents supplied X by the Customer to support two-way inlei'fi`ices Design and code other custom features for iNovah as defined in the X functional and technical specifications Design and code callable interface API to retrieve the Customer's X account information from existing applications Design and code callable interface to suppo►l post payment information X 10 the Customer's accounts for batch interfaces Instal I al I Customer provided hardware and sonware for testing and X verity that the environment is working properly Work with the Customer to install iNovah at the Customer's facility for X acceptance IestlTlg Verify that all Hardware and So -Aware is properly installed at the X Customer's facility and ready for acceptance testing Unit test each modification to iNovah X Perform system tests on the delivered version of iNovah to ensure that the system performs standard functions as expected and meets all X requirements included in tile, functional and technical specifications Coordinate tesling activities with the Customer's personnel and third X party contractors/vendors Perform all tests documented in the Acceptance Test Plan X Assist the Customer in performing the Acceptance Test Plan X Document and manage any deficiencies found during the acceptance Y tests Maintain issues li$t for all iNovah defects reported during the testing X Phase Review the results of acceptance testing and correct documented X . deficiencies Retest corrected defects X Acceptance of delivery of iNovah X Coordinating training activities with the Customer's personnel, third party contractors x Conduct End Uscr "training as defined in Project Scope section of this SOW x Provide All training materials and documentation on electronic media x Provide a training room (appropriate for number of* instal led and netvvorketl personal computers) with access to lest or training servers x Provide a computer protector and screen for training classes x .Any required iNovah peripheral hardware for training classes x Providing desktop training for all cashiers and other users that do not have experience with the recommended Windows operating systern or Internet Explorer computer applications prior to System Innovators arrival x Ensure attendance of cashiers and supervisors during the end user training class x l-nsure end users participation in practice the exercises x Provide printed copies of reference or training materials x Update the functional and technical specifications (if required) to reflect all modifications to requirements, configuration, and schedule as agreed via the PCR Profess x Finalize the production roll out schedule x Insiall all required network cabling, hardware and software x Mine remote support process for System Innovators Client Services Tears. x Verify that VPN access to tine production system works properly (if provided) x Ensure that all site preparations Lire completed x Install all computer hardware and software for the production x Verify that all hardware, software and networks are working properly x Assist the Custoinur in troubleshooting installation problems related to installing iNovah in production environment Establish production user names and password on iNovah x Ensure that all staff members are appropriately trained X Verify acueptance of rirst production use of iNovah X Provide deployment support us defined in Project Scope section of this X SOW Assist the Customer in monitoring the performance of iNovah and X identifying any deficiencies Provide trained supervisors to assist new users with iNovah �+ Transition the Customer's project to System Innovators Client Services x "team Document any problems that occur and provide information on any deficiencies in iNovah to Systein Innovators Client Services Request acceptance of `Live' status of iNovah once the System has been x in production at any location for 30 days Provide acceptance of the `Live' status of iNovah once the System has X been in production at any location for 30 days Provide recommendations far server hardware. personal computers, and X network settings to the Customer Deliver peripheral hardware, identified in the Agreement, to the Customer's facilities Coordinate installation services with the Customer's personnel, third X party contractors Provide assistance with installation of provided peripheral hardware on X personal computers in testing environment at the Customer's Facilities At least two (2) servers (virtual or physical) per environment, meeting; X the hardware prerequisites provided by System Innovators Personal Cotnputers, for all cashiering and sttpervisory workstations, Y meeting the hardware prerequisites provided by System Innovators, Cortrputer network cooncetivity between all personal computers, servers x and other Coll] pute.rs where interfaced applications reside. Backup plan for all System Innovators products and databases Y Universal Power Supply (UPS) equipment for the computer servers x Installation and maintenance of all the Customer's provided hardware x iNovah delivered to the Customer's facilities X Installation of iNovah on servers and iNovah Client on one (1) X workstation in the Customer's Test Environment Installation of third party Software, provided by System Innovators, on servers andlor personal computers in the test environment at the 1 Customer's facilities _--- - Microsoft operating system sofbvare for all servers and personal computers per recommendations. - Microsoft SQL Server software per recommendations for the dalahase x serve], Computer neiNvork sof'ttvare supporting IP communications between all personal ( OInptlterS, servers and other computers Where interfaced X applications reside Backup software for the computer servers X Virus proteetion sof wme for all computer servers and personal x computers Installation and maintenance of all the Customer's provided software X Production environment sofware installation X Project Governance Project Management Structure Adhering to a formal project management structure is an essential component of a successful implementation, with reciprocal communication being the most fundamental element of the governance process. System Innovators recommends a Project Structure that empowers the Core Project Team with Ill.- responsibility of conducting daily project operations, allows Executive Sponsors the ability to monitor overall project progress through scheduled reviews, as well, as providing a resolution path for impasses or decisions that have the potential to affect the implementation timeline and/or scope. Steering Committee Executive Team Executive Sponsors Contract level L Customer Delegate Services Project Manager I Project Manager `: ,... Ovymes3Pfccess.. Experts Core Project Team i ITrtQscurcs 111 MINN ITechnical Tuns 4 Customer Verdar T Teami Recommended Project Management Structure Steering Committee The Steering Committee is the top escalation point for the project and performs the following Functions: o Provides,a controlling mechanism for overall project progress and Change Orders • Meets during project kick-offand at defined intervals during Implementation Members include: The Customer's Executive Sponsors Executive Sponsors at System Innovators Project Managers (as needed) (i) Contract Level The person or persons responsible for the contract side on the Customer side performs the following functions: o Owns the pro_len Change Order process e Manages any contract aspect of the project Members include: System Innovators Vice President of Professional Services or Vice President of Sales Responsible Cotnmercial/Relationship owner at the Customer (ii) Care Project Team System Innovators and Customer Core Project Teams are responsible 1'or successfully delivering the project per the SOW and perfonn the following functions: e Participates in all project phases Ensures that the delivered solution meets internal stakeholder expectations ® Responsible for communication and expectation management with project stakeholders Mernbers include: • bull program and delivery tcanis The Customer's project Manager will review the progress reports created by the Systen'r hrnovators Project Manager and provide feedback to resolve issues and changes. Proieet Change Conti ul A defined process for controlling scope issues and change requests must be in place and roll► wed to hcip ensure that proper visibility is given to change requests and any associated approvals required. items that modify the scope of work will be reviewed by the System Innovators Project Manager to determine if there is an impact to the cost or timelines for this proiect. Glut of scope services will be charged as outlined in Rate Card listed within the "Agreement''. Any change must be documcrtted in a mutually executed Project Change Request (PCR) Work Order. The following change control procedure shrill apply to [his SOW: 1. Project Resource(s) identity new or change in requirements and escalate to the respective Project Manager. 2. System iriilovators and Customer's Projcet Managers work together to gather required information to determine; ifa Change Order is required, 3. Project Managers determine ifa Change Order is valid a. II'no. Project Resources will be informed and the change management process ends. b. If yes, System Innovators Project Manager will facilitate the creation of the Change Order and promptly provide it to the Customer's Project Manager. 4. Customer Project Manager will review the proposed Change Order, with appropriate Customer resources, for content And completeness, and accuracy. 5. If proposed Change Order requires changes, Customer's Project Manager and System Innovators Projcet Manager will collaborate to consider necessary modifications. b. Change Orders must be reviewed and approved by the Contract level of the Project Steering T'earn. 7. If approved by Project Steering Team, the appropriate authorized Customer signatory may sign the Change Order; provided (fiat notwithstanding anything to the contrary in this SOW, no Change Order shall bind Customer unless approved expressly and in writing by the authorized Customer signatory or his/her designee. 8. The Customer Project Manager will inform the System Innovators Project Manr►ger and process required paperwork for tiny executed Change Order. 9. The Customer Project Manager and System Innovators Proicct Manager will perforni administrative project tasks associated to the project and inform the Project Resources accordingly. Schedule "B" Fee Structure and Payment Schedule The total fees payable under this Software Implementation Services Agreement are $525,895.00 which amount is not inclusive of those elements which are specifically excluded as described in the Software Implementation Services Agreement. The fees shal! be paid in the following manner as delineated below: Professional Services Fees Professional Services Rate Card Professional Services Rates Hourly Rate Project Manager $220.00 Developer $220.00 Business Analyst $180.00 Trainer $180.00 DBA / System Engineer $180.00 Additional Interface Rate Card Interface Type License Cast Interface Maintenance Services Cost Batch Interface $15,000 $3,750 $17,600 Low Complexity Interface $20,000 $5,000 $32,600 Real -Time Medium Complexity Interface $30,000 $7,500 $55,204 Real -Time Iligh Complexity Interface $40,000 $10,000 $82,800 Real -Time Payment Schedule Milestone Payment Amount Final Contract Executed - 50% of License Fees $87,300.00 50% of Project Initiation Phase Due Upon Start $2,859.84 50% of Project Initiation Phase Due Upon Complete $2,859.84 50% of Analyze and Design Phase Initiation Due Upon Start $28,297.39 Installation of Base iNovah in Test Environment - 50% of License Fees $87,300.00 50% of Analyze and Design Phase Initiation Due Upon Complete $28,297.39 50% of Develop Phase Initiation Due Upon Start $65,264.60 50% of Develop Phase Initiation Due Upon Complete $65,264.60 50% of Test Phase Initiation Due U on Start $12,492.98 50% of Test Phase Initiation Due Upon Complete $12,492.98 50% of Deploy Phase Initiation Due Upon Start $5,810.00 50% of Deploy Phase Initiation Due Upon Complete $5,810.00 50% of Transition Phase Initiation Due Upon Start $9,934.19 50% of Transition Phase Initiation Due Upon Complete $9,934.19 Travel as incurred $18,000.00 10% Holdback to be paid upon final acceptance or 30 days after production implementation, whichever comes first. $49,102.00 Total $491,020.00 Hardware Fees Milestone Description Value QTY Total Cognitive/TPG A776 USB/Serial Receipt/Slip/ Printer Blacl< no MICR $560.00 25 $14,000.00 Canon CR-120 Imager with OCR and Barcode $895.00 25 $22,375.00 APG Cash Drawer with till and locking cover $235.00 25 $5,875.00 Total Hardware 42,250.00 Client Client Contact Client Email Attachments: ❑ pprova 000 Chargeable Hours 000 Schedule "C" Sample Form Change Order Change Order Rate 000 Non -Chargeable Hours Total Hours Date Software Applicati on $0.00 Amount Client Signature Date Your signature serves as an acceptance of tile "Amount" listed above as it relates to the description of work contained in this Change Order. Your signature also indicates you have reviewed and agree to the scope of work as detailed in any accompanying enclosures or attachments. This signed document indicates that you have provided all of the accurate information necessary to produce the work as stated in the above Change Order. Customer Application Originated by PO# 00000 E # # ;+# 00 i t i P t ATTACHMENT #2 SUPPORT AND MAINTENANCE AGREEMENT THIS SUPPORT AND MAINTENANCE AGREEMENT (the "Agreement") made as of the t day of F2"L (the "Effective Date"). BETWEEN: SVSTEM INNOVATORS, A DIVISION OF N. HARRIS COMPUTER CORPORATION ("Harris') - and - TIIE CITY OF HUNTINGTON BEACI-I ("Organization") RECITALS Harris has licensed Software to Organization pursuant to a software license agreement entered into between the parties on the same date as the Effective Date (the "Software License Agreement") and shall provide related services pursuant to a software implementation services agreement dated the same date as the Effective Date ([lie "Snfhvare Implementation Services Agreement"); The Organization wishes to receive support and maintenance services related to the Software; and t-larris has agreed to provide the support and maintenance services related to the Software on the terms and conditions set out in this Agreement; NOW THEREFORE, in consideration of the mutual covenants set out in this Agreement and for other good and valuable consideration (the receipt and strffic-icncy of which is hereby acknowledged), the parties agree as follows; I . Definitions. Throughout this Agreement, the following words and expressions shall have the following meanings. All defined terms not otherwise defined herein shall have the meaning ascribed to them in the Software I..iecnse Agreement. (a) "Update" means a minor release of the Software which includes minor published modifications or enhancements to the Software related to a bug fix, minor additional functionality or legislative changes. An Update is designated by a change in the right -most digit in the version number (for example, a change from X.I to x.2). (b) '`Upgrade" means a major release of the Software which is it complete new published version of the Software that jsignificantlyj modifies; revises or alters the Soliware and adds features, functionality or enhancement to such Software. An Upgrade is designated by a change in the number to the left of the decimal point in the version number (for example, a change trdm I .X to 2.X). (c) `'Release" means Updates and Upgrades. All Releases are provided in object code. Entire Agreement. This Agreement {including the Change Order document referred to herein and the schedules and exhibits hereto) supercedes all prior representations, arrangements, negotiations, understandings and agreertitents between lire parties, both written and oral, including; without limitation, the Software License Agreement, relating to the subject matter hereof and sets forth the entire and exclusive agreement and understanding between Harris and Organization relating to the subject matter hereof. The terms of this Agreement may not be changed except by an amendment signed by the authorized representative of each party. No provisions in any purchase orders, or in any other documentation employed by Organization in connection with this Agreement, regardless of the date of such documentation, will affect the terms of this Agreement, even if such document is accepted by Harris, with such provisions being deemed deleted. 3. Support Services. Harris shall provide support services in accordance with the Standard Support and Maintenance Services — Harris Standard Guidelines, as may be modified or supplemented from time to time by Harris in its sole discretion, a current copy of which as of the Erfe.clive Date is attached to this Agreement zs Exhibit 2 (the "Support and Maintenance Services"). Support and N'laintenance Services shall be provided primarily via telephone and electronic mail, and Harris will provide site visits at Customer's request sut?ject to additional fees or when deemed necessary by Harris, in its sole discretion, to resolve an issue. The Support Services will be provided only during the hours of operation as described in Exhibit 2 hereto and which are in effect as of the Start Date (as defined below). To enable I-larris to provide effective Support and Maintenance Services, the Organization will establish auto remote access procedures compatible with Harris's then current practices which may be revised over time. }. Support and Maintenance Fee. In consideration for the Support and Maintenance Services, Organization shall pay the "Support and Maintenance Fee" as detailed in Exhibit I below. The Support and Maintenance Fee will be billed annually in advance. The first billing date shall be the pro rata amount for the period beginning upon Go live (as defined in the Software Implementation Services Agreement) (the "Start Date") to the "Renewal Date", which is defined as being either January I or July 1 as chosen by tite Organization in the applicable order form. Thereafter, the Support and Maintenance Fee shall be paid for the period beginning on each subsequent Renewal Date and ending at 23:59 eastern time, the day preceding the Renewal Date. Harris may change the Support and Maintenance Fee fi-om time to time in relation to each renewal term but Organization shall only be billed once per year. The Support and Maintenance Fees shall only be changed according to the Additional Receipt Volume Rate Card as shown in Exhibit I where a reorganization oCcurs or clue to any additional Licenses or other growth -2- of•Organization during the term based upon bd Harris's then current billing practices. 5. Billable Fees. In addition to the Support and Maintenance Fee, Organization shall pay Harris for Billable Fees which are defined as fees fear the support and maintenance services for Third Party Software and for Harris's direct expenses in providing support services pursuant to this Agreement for services that are not included in this Agreement (" i3illahle Fees"). The Billable Fees will cover reasonable and documented expenses related to the installation/implementation of an Upgrade, or any necessary services provided at Organization's premises, when the parties mutually agree that additional services are required, The Billable Fees shall be owed only when authorized in advance and in writing by the Organization and shall be invoiced separately to Organization. The Billable. Fees include as of the Start Date. (a) courier services, telecommunication services, and reproduction services, (b) direct travel espenses preapproved by the Organization which include airfare, lodging, travel time per diem and mileage., Any airfare Billable Fees shall be at a rate for , unrestricted coach flights and will not cover any upgrades. Overnight lodging, if necessary, must be preapproved by the Organization at lodging establishments with reasonable and competitive: overnight rates. Additional in -room amenities such as movies, mini -bar, and room service are not reimbursable. Car rental, tolls, parking and airline fees are considered Billable Fees; each individual',, travel time may be billed at $75.00/hour and a per diem rate equal to the current U.S. Oeneral Services Administration on all meal and food expenses (no receipts will be provided) for the zip code ol'Organization; and a mileage charge consistent with the htternal Revenue Service recommended rate per mile. Third Party Sollware will be separately billed on each invoice. Harris may update its reimbursement policies from time to time, in which case such updated policies shall apply for purposes of this Agreement. The Billable Fees and Third Party Maintenance Fees shall automatically increase for each renewal period based on Harris's then current rates. 6. Upgrades. Conditional upon Organization paying the Support and Maintenance Fee, the Billable Fees, and any other additional amounts applicable to such Upgrades. Harris shall supply Upgrades to Organization. Upgrades may require additional services to be performed by Harris outside of the scope of the Support and Maintenance Services including additional training not covered by the Software Implementation Services Agreement and professional services for the installation and implernentalion of the Upgrade that Nvill be subject to Harris's then -prevailing policies, terms and Billable Fees related to pricing and hourly rates. 7. Updates. All Updates of the Software and all those services listed in Exhibit 2 which are included as part of the Support and Maintenance Set -vices will be made available to Organization at no additional charge other than the payment of the Support and Maintenance Fee, the Billable Fees, and any other amounts payable under this Agreement. -3- 8. Compliance with Laws. The Organization shall comply with all applicable local, state, federal, and foreign laws, treaties, regulations, and conventions in connection with its configuration and use of the Software, including without limitation those related to privacy, electronic communications and anti-spam legislation. Organization is responsible for ensuring that its configuration and use of the Software to store or process credit card data complies with applicable Payment Card Industry Data Security Standards ("PCI DSS") and The Fair and Accurate Credit Transactions Act ("FACTA") requirements and shall not store credit card and social security data in the system except in the designated encrypted fields for such data. Organization is solely responsible for re- validating the configuration settings used with the Software following the installation of any Updates or Upgrades prior to using such Update or Upgrade in a production environment. 9. Payments. All payments hereunder shall be in U.S. dollars and shall be net of any taxes, tariffs or other governmental charges. Organization agrees to pay all foreign, federal, state, provincial, county or local income taxes, value added taxes, use, personal, property sales and any other taxes, tariff, duty or similar charges that may be levied by a taxing authority (excluding taxes on Harris' net income) on the Support and Maintenance Fee, the Billable Fees and any other fees set out in this Agreement. 10. Term. Unless terminated earlier in accordance with this Agreement, the initial term of this Agreement shall be for the period that begins on the Start Date ending on December 3 1 " or June 30`h of that same year depending on whether Organization selected January l" or July I" as the Renewal Date (the "Initial Term"). Thereafter, this Agreement shall be effective for ongoing one year terms that shall automatically renew on an annual basis on the Renewal Date, unless terminated by either party upon giving to the other not less than three (3) month notice in writing prior to the end of any subsequent renewal term (such notice to be received by Harris no later than October I` of the year preceding the date on which such renewal term is not being renewed) (a "Renewal Term"). Organization shall pay the then prevailing Support and Maintenance Fee (including any Third Party Software related fees) in advance for each term of this Agreement and where the notice of non -renewal has not been provided in accordance with these terms, the Organization is obliged to pay the Support and Maintenance Fee for the next applicable Renewal Term. l 1. Ownership. Title to and ownership of all copyright, trademarks, trade secrets, patents and all other intellectual property and proprietary rights in the Releases and all related proprietary information supplied by Harris in providing the Support and Maintenance Services shall at all times remain with Harris, and Organization shall acquire no proprietary rights by virtue of this Agreement. Any updates related to Third Party Software shall be subject to the applicable Third Party Software licensor's agreement. 12. Termination. (a) Harris shall have the right to terminate this Agreement and/or suspend the provision of Support and Maintenance Services immediately if: 10 {i) Organization attempts to assign this Agreement or any of its rights hereunder, or undergoes a reorpnization, without complying with the .Software License Agreement, Organization has not paid an invoice within ninety (90) days ofthe start of 1 Renewal "Perm; -5- (iii) Organization (i) becomes insolvent; (ii) becomes the subject of any proceeding under any bankruptcy, insolvency or liquidation law, whether voluntary or involuntary, which has not been resolved within ninety (90) days of commencement thereof; or (iii) becomes subject to property seizure under court injunction or other court order which has a material adverse effect on its ability to make payments when due hereunder; or (iv) Organization has breached or violated any obligations of confidentiality or any intellectual property or proprietary right of Harris. (b) This Agreement shall automatically terminate in the event that the Software License Agreement expires or is terminated, or in the event that the Software Implementation Services Agreement is terminated prior to the Completion of Services, as that term is defined therein. 13. Effects of Termination. The termination or expiration of this Support and Maintenance Agreement shall result in the concurrent termination of the Software License Agreement and Software Implementation Services Agreement. Harris shall neither refund any Support and Maintenance Fees nor any Billable Fees if this Support and Maintenance Agreement is terminated. 14. Disclaimer of Warranty. TO THE GREATEST EXTENT PERMITTED BY LAW, THE SUPPORT AND MAINTENANCE SERVICES PROVIDED BY HARRIS ARE PROVIDED "AS IS" AND THERE ARE NO WARRANTIES REPRESENTATIONS OR CONDITIONS EXPRESSED OR IMPLIED WRITTEN OR ORAL ARISING BY STATUTE OPERATION OF LAW COURSE OF DEALING USAGE OF TRADE OR OTHERWISE REGARDING THE SUPPORT AND MAINTENANCE SERVICES OR ANY OTHER PRODUCT OR SERVICE PROVIDED HEREUNDER OR 1N CONNECTION HEREWITH. HARRIS DISCLAIMS ANY IMPLIED WARRANTY OR CONDITION OF MERCHANTABLE QUALITY,. -..MERCHANTABILITY, DURABILITY FITNESS FOR A PARTICULAR PURPOSE TITLE OR NON - INFRINGEMENT. HARRIS DOES NOT REPRESENT OR WARRANT THAT THE SOFTWARE SHALL MEET ANY OR ALL OF ORGANIZATION'S PARTICULAR REQUIREMENTS THAT ALL ERRORS OR DEFECTS IN THE SOFTARE CAN BE FOUND OR CORRECTED. Organization acknowledges and agrees that the Support and Maintenance Services are not designed nor intended to be used to maintain or manage any products requiring fail- safe operation and where the failure of the products or Support Services could lead to death personal iniury or environmental damage HARRIS DISCLAIMS ANY AND ALL WARRANTIES AND LIABILTY WITH RESPECT TO THE USE OF THE SUPPORT AND MAINTENANCE SERVICES IN SUCH HIGH RISK ACTIVITIES. 15. Notice. Unless otherwise agreed to by the parties, all notices required hereunder shall be made in accordance with the provisions of the License Agreement. In 1 b. Waiver. Either party's lack of enfiXcemcnt of any provision in this Agreement in the event of a breach by the other shall not be construed to be a waiver orally such provision and the non -breaching party may elect to e►iforce any such provision in the event of any repeated or continuing breach by the other. 17, Cont-identialiti% The particular provisions of this Agreement shall be deemed contide►itial in nature and neither Organization nor Harris shall divulge any of its provisions as set forth herein to any third party except as may be required by law and the provisions related to Confidential Information as detailed in the Software License Agreement shall apply equally to this Agreement. 18. Limitation of Liability. (a) Termination of this Agreement shall not affect any right of action of either party arising From anything which was done or not done, as the case may be, prior to the termination taking effect. (b) The Organization and Harris recognize that circumstanczs may arise entitling the Organization to damages for breach or other fault on the pant of 1-larris arising from this Agreement. The parties agree that in all such ciretunstances (he Organization's remedies and Harris's liabilities will be limited as set `orth below and that these provisions will survive notwithstanding the termination, expiration or other discharge of the obligations of the parties under this Agreement. (c) THE AGGREGATE LIABILITY OF HARRIS TO ORGANIZATION FOR ALL CLAIMS, SUITS, ACTIONS AND PROCEEDINGS HOWSOEVER ARISING, DIRECTLY OR INDIRECTLY, UNDER OR RELATING '1'O THIS SUPPORT' AND MAINTENANCE AGREEMENT OR ITS SUBJECT MAT`l'ER, INCLUDING THOSE RASED ON BREACH OR REESCISSION OF CONTRACT, TORT, BREACH OF 'I'RUST, OR BREACH OF FIDUCIARY DUTY SHALL NOT EXCEED, IN THE AGGREGATE, THE AMOUN"f OF FEES ACTUALLY PAID I3Y THE ORGANIZATION TO HARRIS UNDER THIS SUPPORT AND MAINTENANCE AGREEMENT DURING "rl-IL THEN - CURRENT `PERM (AND IN NO EVENT BEING GREATER "THAN 12 MONTI-IS) OF THE SUPPORT AND MAINTENANCE AGREEMENT UP TO AND INCLUDING THE DATE OF TERMINATION. (d) IN ADDITION'f0 THE FOREGOING, NEITHER PARTY SHALL BE LIABLE TO THE OTHER FOR ANY CLAIMS FOR CONSEQUENTIAL DAMAGES, INCIDENTAL DAMAGES, INDIRECT DAMAGI_S, SPECIAL DAMAGES, AGGRAVATED DAMAGES, LOSS Of- REVENUE, LOSS OF PROFITS. FAILURE TO REALIZE EXPECTED SAVINGS, LOSS OF DATA, LOSS Of -'BUSINESS OPPOKFUNITY EITHER UNDER Olt RELATING TO THIS SUPPORT AND MAINTENANCE AGREEMENT OR ITS SUBJECT MATTER, WHETHER BASED ON BREACH OF RESCISSION OF CONTRACT, TORT, BREACH OF TRUST, OR BREACH OF FIDUCIARY DUTY EVEN IF SUCH OTHER PARTY HAS BEEN ADVISED OF THE -7- LiKELIHOOD OF THE OCCURRENCE OF SUCH DAMAGES AND NOTWITHSTANDING ANY FAILURE, OF ESSENTIAL, PURPOSE OF ANY LIMITED REMEDY 19, Rentcdies. Where remedies are expressly al'lorded by this Agreement, such remedies are intended by the parties to be the sole and exclusive remedies of the Organization for Inabilities of the Harris arising out of` or in connection with this Agreement, notwithstanding any remedy otherwise available at law or in equity. 20. Allocation of Risk. The parties agree that the limited warranties, disclaimers and limitation of liability as set out in in this Agreement are fundamental elements of the basis of bargain between Harris and Organization and set north an allocation of risk reflected in the fees and payments hereunder. 21, Governing Law. This Agreement shall be governed by the laws ofthe State of California in which Organization is located 22. Assignment. This Agreement may not be assigned by the Organization (including by way of Reorganization) unless, concurrently with any su::h assignment, the Organization assigns its rights tinder, and complies with the provisions of the License Agreement. This Agreement shall be binding upon and entire to the benefit of the parties, their successors and permitted assigns. 23. Severability. If any provision of this Agreement is determined by a court of competent jurisdiction to be invalid or unenforceable under any applicable law, then such provision shall be deemed modified to the extent necessary in order to render such provision valid and enforceable. If such provision may not be so saved. it shall be severed and the remainder of this Agreement shall remain in full force and effect. 24. Counterparts. This Agreement may be executed in counterparts (whether by facsimile signature or in PDF format via a -mail or otherwise), each of which when so executed shall constitute an original and all of which together shall constitute one and the same agreement. 25. Mediation. The parties agree to submit any claim; controversy or dispute arising out of or relating to this Agreement to non -binding mediation before bringing a claim, controversy or dispute in a court or before any other tribunal. The mediation is to be conducted by either an individual mediator or a mediator appointed by mediation services mutually agreeable to the parties, The mediation shall take place at a time and location which is also mutually agreeable, provided, however, in no event shall the mediation occur later than ninety (90) days after either party notifies the other of its desire to have a dispute be placed before a mediator. Such mediator shall be knowledgeable in software system agreements. The costs and expenses of mediation, including compensation and expenses of the mediator (and except for the attorneys' fees incurred by either party), is to be shared by the parties equally. If the parties are unable to resolve the claim, 21.1 controversy or dispute within ninety (90) days after the (late either party provides the other notice of mediation, then either party may brim and initiate a legal proceeding to resolve the claim, controversy or dispute unless the time period is extended by a written agreement of the parties. 26. Survival. Sections I, 2, 4, 5, 8, 9, 11, 13-27, and any other provision of this Agreement which is required to ensure that the parties fully exercise their rights and their obligations hereunder shall survive any termination or expiration unless and until Waived expressly in writing by the party to wlzOrn they are of benefit, 27. Relationship. The parties are and shall at all times, independent contractors in the performance of this Agreement and nothing herein shall be deemed to create a joint venture, partnership or agency relationship between the Parties. Neither party will have the power to bind the other party or to contract in the name of or create any liability against the other party in any way for any purpose. 28. Force Maieeure. No default, delay or failure on the part of Harris shall be considered a breacli of this Agreement where such default, delay or failure is due to a force ma.Ieure or to circumstances beyond its control. Such circumstances will include, without limitation, acts or omissions on the part of the School, strikes, riots, civil disturbances, actions or inactions concerning government authorities; epidemics, war, terrorist acts, embargoes, severe weather, fire, earthquakes, acts of God or the public enemy or default of a common carrier, the Internet or other electronic communications outside the control of larris, or (other disasters or events. 0 IN WITNESS WHEREOF, the prties hereto have caused this Agreement to be executed by and through their authorized oflicers. CONSULTANT, SYSTEM INNOVATORS, A DIVISION CITY OF 11UNTINC'fON WHACH, a municipal OF N. HARRIS COMPUTER corporatiP71 Cthe%�'tate of ornia CORPORATION lot.' Zn d i A,_ COMPANY NAME 13y: '- ((-( f, �jc—'J CJ print narnu ITS: (ci)cle nue) Chuinum t�ice President AND ®2 By:—, cam---� ITS: (circle on_ stere►arylchie:rl'in,uIr )tli>sst. Secretary - Treasurer Mayor City Clerk � tf 2311$ INITIATED AND PPROVED: Ch is r Financial Officer PVIND APPROVED: m Exhibit l Annual Support and Maintenance Fee Year l Support and Maintenance Fees: $38,800.00 (includes 16 hours oNedicated after hours support at no additional charge) Year 2 Support and Maintenance Fees: S39,964.00 Year 3 Support and Maintenance Fees: S41,162.92 Year 4 Support and Maintenance Fees: $42,397.81 Year 5 Support and Maintenance Fees: $43,669.74 Additional Receipt Volume Rate Card Additional Receipt Volume Additional License Cost Additional Support and Maintenance For every additional 100,000 25,000.00 $5,000.00 receipts ATTACHMENT #3 SOFTWARE LICENSE AGREEMENT T141S SOFTWARE LICENSE AGREEMENT made as of the leday of , '1 2. ("Effective Date"). BETWEEN: N. HARRIS COMPUTER CORPORATION (A l a rris") - and - THE CITY OF HUNTINGTON 13EACH ("Organization") RECITALS -Farris wishes to grant the Organization a license to utilize the Software; ?. 'file Organization wishes to acquire a license to utilize the Software. The Organization and Harris agree to enter into three (3) separate agreements each dealing With a separate aspect of the Software: this Software License Agreement, a support and maintenance agreement (the- "Support :and Maintenance Agreement") and a soRtivare implementation services agreement (the "Software Implementation Services Agreement"), ctwh dated the same elate as the E.Ffcctive Date. NOW THEREFORE, in consideration of the mutual covenants set out in this Agreement and 11or other good and valuable consideration (the receipt and sufficiency of which is hereby acknowledged). the parties agree as follows: Article I. I NTH'. RPRETATION Section 1.0.1 Definitions Throughput this Agreement, except as otherwise expressly provided, the following words and expressions shall have the lbilowing meanings: (a) "Agreement" and similar expressions mean this Software License Agreement, including all of its SChedUIES and all instruments supplementing, amending or confirming this Agreement. All references to "Articles" or "Sections' mean and refer to the specified Article or Section of this Agreement except where a different agreement is explicitly identified. (b) "Annual Receipt Volume` means [lie total number of Receipts paid for by Organization for the current Annual Support `Perm. (c) "Annual Support Term" means the arrtaUal term of maintenance and support services as set out in (lie Support and Maintenance Agreement. (d) "C.ompletiott of Services" shall have the definition ascribed to it in the Software Implementation Services Agreement, (e) "Confidential information" means the Software and all information or material that either party treats as confidential and any information relating to third parties that a party has an obligation to treat as confidential, which is disclosed by or obtained by a party in connection with this Agreement, whether such information is in oral, written, graphic nr electronic form, which: is (A) imarked "Confidential," "Restricted," or "Proprietary Information" or other similar marking, (B) known by the parties to be considered confidential or proprietary, or (C) which should be known or understood to be confidential or proprietary by an individual exercising reasonable commercial judgment in the circumstances. Confidential Information does not include information to the extent that such information: (i) is or bec7mcs generally known to the public by any means other than a bre.fielt of the obligations of receiving party hereunder; (ii) was previously known to the receiving party as evidenced by its written records; (iii) is rightly received by the receiving party from a third party who is not underan obligation of confidentiality; (iv) it independently developed by the receiving party without reference to or use of the other party's Confidential Information which such independent development can be established by evidence that would be acceptable to a court of competent jurisdiction. Organization's customers and their information is not considered to be Confidential In formation. (f) "Designated Computer System" shall mean one (1) production environment, up to three (3) test environments (non -production), and up to one (1) of each of the follo"ving additional non -production environments; disaster recovery, disaster testing, archival, and backup (each of which may only be accessed for the related purposes anr E, d fo►rly so long as the related purpose retluires) ownM or controlled by the Organization. (t;) "Doctimentration" means user guides, operating manuals, educational materials, product descriptions and specifications, technical munuals, supporting materials, and other information regarding the Software regardless of the media on which it is provided. (h) 1'End user" means a customer of Organization to whom Organization will provide access to tits interface portion of the Software and whose use of the SoNvare is for its own account and not for another co►nmercial purpose. (i) "License" means the license rights granted t,) the Organization pursuant to Section 2.01 11Creof: () "Receipl(s)" Weans each bill or invoice issued by Organization that has been paid by a custamer of Organization and is recorded or stored ill the Software during, the Annual Support "Perm. N "Release" means an Update and an Upgrade (1) "Required Programs" and "Required Harchvare" have the meaning set out in Section 3.03. (m) "Site" means solely at the production environment described in Schedule "A" and at an unlimited number ot'non-production environments. (n) "Softvare" means the software products that -ire listed in Schedule "A" and includes any Update(s) or Upgrade(s) that have been provided to Organization pursuant to the Support and Maintenance Agreement that has been entered into between Harris and the Organization. Third Party Software is not included in the definition of Software except where this Agreement explicitly states othenvise. (o) "Subcontractor" means a third party with which Harris has an agreement to provide certain Services related to its resale of Third Party Software. The Subcontractors as of the EflecOve Date arc those listed in subsection 4.4 of the Software Implementation Services Agreement. (p) "Systim Softvare" means third party softwtrre that is provided by a third party and which is provided to Organization on hardware as further described in Schedule "ID". (q) 66,1'hird Patty Software" means the third part), soffi are product that is provided by Subcontractor as delineated in Schedule "C". All licenses related to Third Party Software shall be between Organization and the Third Party Soffi are licensor even though Harris may invoice and collect the licensing fees on the Subcontractor's and Third Party Software licensor's behalf. Future Releases of the Software may require alternate third party sof fare to be licensed by Organization, which will be subject to a third party license agreenicot between Organization and the relevant third party software licensor. In such case Schedule "C" shall be amended in accordance with Section 6.09 to add any such third party software and it shall be deerned "Third Party Software" for the purposes of this Agreement. (r) "Update" means any published changes, additions or corrections to the. Software that primarily include a minor trtoditication or enhancement to the Sollware related to a bug Fix, minor additional functionality or legislative changes. An Update is designated by a change in the right -most di—eir in the version number (for example, a change from X.1 to X.2). (s) "Upgrade" means a major overhaul of the Software which is a complete new published version of the Software that modifies, revises or alters the Software and adds features, functionality or enhancements to such Software. An Upgrade is designated by a change in the number to the left of the decimal point in the version number (for example; a change from I .X to 2.X. (t) "User" means any employee of Organization or any of Organization's agents who have been authorized by Organization, in advance of the agents' access to the Software. pursuant to the terms of this Agreement to have access to the Software. - 3 - Section 1.02 Currency Unless otherwise specified, all references to amounts of money in this Agreement ;and the related Schedules refer to U.S, currency. Section 1.03 Schedules 'File Schedules described below and appended to this Agreement shall be deemed to be integral parts of this Agreement. Schedule "A" - Description of Software Schedule "B" - License Pees & Payment Schedule Schedule "C" - Third Party Software License and Third Party Software Terms Schedule "D" - System Soflware In the event of any conflict or inconsistency between the terms and conditions in the main body of this Agreement and the terns and conditions in any Schedule, the terms and conditions of the main body of this Agreement shall control unless otherwise expressly stated in the provision giving rise to the conflict or inconsistency. Article IL SOFTWARE LICENSES Section 2.01 Grant of Licenses (a) Subject to the terms and conditions of this Agreunent including without limitation the payment of-thc: License Pees (as defined in Section 4.01) and all applicable fees under the Support and Maintenance Agreement, Harris hereby grunts to the Organization a personal, non-exclusive, non -transferable and limited right and license to: (i) use the Documentation and the Software in object code format on the Designated Computer System at the Site solely for the Annual Receipt Volume solely for the purposes set out in Section 2.01(b), (ii) copy- (A) the Software for use at the Site on the Designated Computer System, Access to which by Users can be from any computer terminal, whether Internal to or external to Organization's facility incorporating the Designated Computer System; and (B) the Documentation, provided it}at Organization must reproduce any copyright or other notice marked on any part of the Software and Documentation on all authorized copies and Hurst not alter or remove any such copyright or other notice. To the extent that any temporary miles associated with the Software are created on any computer terminal used by Users to access the Designated Computer Systern, those temporary files are permitted but only for such time that the temporary files are actually required. Organization agrees that the original copy of all Soll►vare furnished by Harris and all copies thereof made by Organization are and at all times remain the sole property of Harris. _q_ (b) The Organization may: 0) use the Soflware, solely for its municipal and corporate purposes including, but not limited to, performing testing, olisnstcr recovery, disaster testing, training, archival and backup as the Organiza4ion deems necessary, and (ii) modify the Documentation solely for the purpose of creating and using training materials relating to the Software, which training materials may include flow diagrams, system operation schemaiics, and/or screen prints from operation of' the Software. Access to and use of the Sofitivare by independent contractors of the Organization shall be considered authorized use under this Section so long assuch independent contractors are bound by obligations of confidentiality at least as protective of Harris' Confidential Information, and terms and conditions at Fast as protective of Harris' rights in and to the Software, as the terms and conditions ofthis Agreement. The Organization shall be responsible for (i) all of the actions ofand (ii) an), misuse of the Software by any independent contractor. (c) 'File license rights granted in this Section 2.01 do not include tite right to use any Third Party Sof fare. (d) "file license rights granted in this Section 2.01 is sulaject to the Organization continuing to have the Support and Maintenance Agreement in effect and having paid all Support Fees as required under the Support and Maintenance Agreement. Section 2,02 Term This Agreement commences on the Iffcelive Date and shall continue to be in force unless terminated pursuant to the terms hereof (the "Term"), Section 2.03 Restrictions on Use (a) Without limiting the generality of Section 2.01 and in addition to the other restrictions listed therein, Organization shall not, and will not allow, direct or authorize (directly or indirectly) any third party to: (1) use tlac Software for any purpose other than in connection vvitla Organization's primary business or operations; (5) disassemble, de- conlpile, reverse engineer, defeat license encryption mechanisms, or translate any part of the Software, or otherwise attempt to reconstruct or discover the source code of the Sofware except and only to the extent that applicable law expressly permits, despite this limitation; (iii) modify or create derivate works of the Soflwarc or merge all or any part of the Software with another program; (iv) rent, lease, lend, distribute, transfer, assign or use the SOflware fig►' timesharing or bureau t►se or to publish or host the Software for others to use; or (v) take any actions that would cause the Software to become suhject to jury open source or quasi -open source license agreement. (b) The Organization shall comply with all applicable local, state, federal, and foreign Paws, treaties, regulations, and conventions in connection with its configuration and use of the Software, including without Limitation those related to privacy, electronic communications and anti -spans legislation. Organization is solely responsible for ensuring that its configuration and use of the Software to store or process credit card data complies with applicable Payment Card Industry Data Security Standards ('110 DSS") and The fair and Accurate &edit Transactions Act ("FACTA") requirements and shall 5 not store credit card and social security data in the system except in the designated encrypted fields for such data. Organization is solely responsible for re -validating the configuration settings used with the Software following the installation of any Updates or Upgrades prior to using such Update or Upgrade in a production environment. Section 2.04 Ownership of Soft,vare (a) The Software and related materials supplied by Harris are protected by copyright and trademark laws. The Software is licensed and may not be resold by Organization. Any rights not expressly granted herein are reserved. Organization may not obscure, remove or otherwise alter any copyright, trademark or other proprietary notices from the Software and related materials supplied by Harris. (b) Organization acknowledges and agrees that Harris is and shall remain the sole and exclusive owner of the Software, including without limitation any and all proprietary rights under (a) patent law; (b) copyright law; (c) trade -mark law; (e) design patent or industrial design law; or (d) any other statutory provision or common law principle applicable to this Agreement, including trade secret law, which may provide a right in either ideas, formulae, algorithms, concepts, inventions or know-how generally, or the expression or use of such ideas, formulae, algorithms, concepts, inventions or know-how. Organization shall report to Harris any infringement or misappropriation of Harris' rights in the Software of which Organization becomes aware. (c) In order to assist Harris with the protection of its proprietary information and Confidential Information and to enable Harris to ensure that the Organization is complying with its obligations (including those related to volume of generated receipts by Organization in terms of calculating the License fee), Organization shall permit Harris to: (i) visit during normal business hours any premises at which the Software is used or installed and shall provide Harris with access to its Software with reasonable notice and no more than once in any twelve (12) month period, unless the Organization has been found during a previous audit to not have adhered to the License obligations in this Article II or to have reported an up to date volume of generated receipts. Harris shall provide Organization with reasonable notice of any such audit; (ii) remotely connect with the Designated Computer System and obtain data that either permits Harris to determine the volume of receipts generated using the Software or whether Organization is complying with the terms of the License and otherwise perform telemetry to determine Organization's compliance with the terms of this Agreement; and (iii) to obtain aggregate data for Harris's internal use or for Software and other product enhancements. As a partial consideration for the license and net fees charged to Customer, Customer agrees that, upon execution of the Agreement, Customer will — upon Harris's request - participate in a joint release with Harris regarding the Agreement which shall not be -6- released prior to obtaining v.,ritte►t approval from Customer.and thereafter, Customer will allow Harris to use it as a reference account for marketing purposes, includim, 0) allowing Harris to reference Customer on its reference account customer lists in print and on its website; (ii) providing quotes for Harris's press releases and wcbsite, subject to Customer's prior review and approval of text; and (iii) participating in one phone interview for the development of webinar. Section 2.05 Third Party Software (a) Harris shall distribute to Organization the Third Party Software which is described as Third Party Software. i►l Schedule "C`' and which may also be referenced as being "Purchased Software" throughout the schedules. Organization shall pay Harris for the. Third Party Software in the amount of the purchase price(s) listed on Schedule "B": Harris and/or the Third Party Software manufacturer(5) will provide Organization with one copy of the then etn•rcnt user documentation fi.)r use with the Third Party Software. (b) it is acknowledged by the parties hereto that the Third Party Software provided by Harris to Organization pursuant to this Agreement was developed and delivered to Harris by one or more third party software companies. As such, the Third Party Software is licerised to Organization by the applicable licensor listed in Schedule "A" and subject to the ternls and conditions of the applicable license agreement for such Third Party Software. Harris makes no warranties, express or implied, with respect to the Third Party Software, inch.1ding, without limitation, their merchantability or fitness for a particular purpose and Harris accepts no liability of tiny kind whatsoever with respect to the Third Party Software. Any warranty Organization has with respect to the Third Party Software shall be solely provided by the "Third Party Software licensor except where this Agreement may expressly state otherwise. (c) Organization acknowledges that its interest in the Third Party Software shall be in the nature ofa license or sublicense with one or more of the Third Party Softwarc licensors which may: (i) require Organization to enter into one or more. separate end user license agreements wilh such 'third Party software licensors, and/or (ii) place restrictions on Organizations use of'the Third Party Software. Concurrently with the execution of this Agreement, the Organization shall execute the end user license agreements for the Third Party Software attached hereto as Sched tile "C". Tile Organization acknowledges that all remedies available to the Organization in relation to the Third Party Softwarc are provided only by the Third Party Softwarc licensor in the end user license agreement. The parties agree that although the Support and Maintenance Agreement may contain estimated prices fur the }annual maintenance of the Third Party Softwarc, any maintenance of the 'I"bird Party Software shall be provided solely by the Third Party Software licensors through separate agreements between Organization and such Third Party Software licensors. In no event shall I larris be responsible for such Third Party Software maintenamce except where the 'third Party Softwarc I icense may expressly state otherwise. Section 2.06 System Sofhvare -7- (a) This Section 2,06 shall only be applicable in the event any System Software is listed on Schedule "D" and/or is included with the purchase of any hardware, (b) I larris shall distribute to Organization the System Software, and Organization shall pay Harris for the System Software, in the amount of the purchase price(s) listed on Schedule "B" and/or which may be included in the purchase price of the hardware. Upon delivery pf the System Software to Organization, Harris shall invoice Organization for the System Software (unless the price of the System Software is included in the price of the hardware), and Organization shall pay for the same within thirty (30) days. Delivery of the System Software shall be deemed to have occurred: (i) on the date for which Harris delivers hardware to Organization with the System Software installed thereon, I O.B. point of destination; provided that Organization shall pay the shipping charges, or (ii) the date o» ivliich Harris installs the System Software on Organization's hardware, Harris and/or the System Software manufacturer(s) will provide Organization with one copy of the then current user documentation for use with the System Software. (c) Except as otherwise provided in this Agreement, Organization shall be responsible for the installation of the System Software at Organization's location. if Organization desires Harris to perform any installation which is not described in this Agreement, Harris and Organization shall follow the procedures set forth in this Agreement. (d) It is acknowledged by the parties hereto that the System Sottwarc provided by Harris to Organization pursuant to this Agreement was developed and delivered to Harris by one or more third party software companies. As such, Harris makes no warranties, express or implied, with respect to the System Software, including, without limitation, their merchantability or fitness for a particular purpose. Any rvarrartty Organization has with respect to the System SottNvarc shall be solely provided by the third party software companies. Additionally, Organization acknowledges that its interest in the Systern Software tray be in the nature of a license with one or more of the third party software companies which may: (i) require Organization to enter into one or more separate license agreements with such third party software companies; and/or (ii) place restrictions on Organization's use of the System Software. (e) The parties agree that although this Agreement may contain estimated prices for the annual maintenance of the System Software, any maintenance of tile. System Software shall be provided solely by the third party software companies through separate agreements between Organization and such third party software companies. In no event shall Harris be responsible for such Systeal Software maintenance. Article Ill. REPRESENTATIONS AND WARRANTIES Section 3.01 Warranty of Performance I larris warrants to the Organization that: (a) the Software will substantially perform as described in the Documentation if the Software is used in accordance with the Documentation, the terms of this Agreement; and where -S- the Organization has used the Required Programs and the Required Hardware and properly configured the Software. The Organization's sole remedy in the event the Software does not conform to the Documentation is the repair and replacement of the Software. (b) it has the ftill right, authority and power to enter into this Agreement. Section 3.02 Exclusions to Warranty Harris shall not be liable for any breach of the foregoing warranties which results from causes beyond the reasonable control of Harris, including (a) where the installation, configuration, integration, modification or enhancement of the Software has not been carried out by Harris or its authorized agent, or where Organization has taken any action which is expressly prohibited by the Documentation or this Agreement; (b) any use or combination of the Software with any software, equipment or services not supplied by or on behalf of Harris; (c) user error, or other use of the Software in a manner or in an operating environment for which it was not intended or other than as permitted in the relevant scope of work or in this Agreement; (d) Organization's failure to install a new Update which has been released to remedy an error or bug, and which Harris has stated to Organization is a required Update necessary for security purposes or for legislative compliance purposes or other reasons as Harris may determine is important in its sole discretion; (e) Organization's failure to perform a re -validation of configuration settings following the installation of an Update before using the Update in a production environment; or (� any other event of force majeure as set out in Section 6.21. Section 3.03 No Other Warranties EXCEPT AS EXPRESSLY STATED IN SECTION 3.01, TO THE GREATEST EXTENT PERMITTED BY LAW, THE SOFTWARE IS LICENSED AND ALL OTHER MATERIALS AND SERVICES ARE PROVIDED TO THE ORGANIZATION "AS IS" AND THERE ARE NO WARRANTIES, REPRESENTATIONS OR CONDITIONS, EXPRESSED OR IMPLIED, WRITTEN OR ORAL, ARISING BY STATUTE, OPERATION OF LAW, COURSE OF DEALING, USAGE OF TRADE OR OTHERWISE, REGARDING THEM OR ANY OTHER PRODUCT, SERVICE OR MATERIAL PROVIDED HEREUNDER OR IN CONNECTION HEREWITH. HARRIS, ITS LICENSORS AND SUPPLIERS DISCLAIM ANY IMPLIED WARRANTIES OR CONDITIONS REGARDING THE SOFTWARE AND ANY OTHER PRODUCTS, SERVICES AND MATERIALS PROVIDED HEREUNDER OR IN CONNECTION HEREWITH, INCLUDING, BUT IVE 1kARRANTIES OF MERCIIANI'ABLE QUALITY, MERCHANTABILITY, DURABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE OR NON -INFRINGEMENT. HARRIS DOES NOT REPRESENT OR WARRANTTHAT IAT THE SOFTWARE. SHALL OPI RATE FiZROR FREE OR INTHE COMBINATIONS SEI.EC'fI D,'I'I-IAT IT SHALL MEET ANY OR ALL 01"THE ORGANIZATION'S PARTiCULAR REQUIREMENTS, OR THAT ALL ERRORS OR DEI-I CTS IN THE SOFTWARE CAN BE POUND OR CORRECTED, NO AGREEMENTS VARYING OR EXTENDING ANY EXPRESS WARRANTIES SET FORTH IN T iIS AGREEMENT SHALL BE BINDiNG ON FITHER PARTY UNLESS IN WRITING AND SIGNED BY AN AUTHORIZED SIGNING OI=FICER OF HARRiS. Subject to the requirements of Section 3.01, Harris reserves the right to correct any defects about which it is made aware and to produce Releases at a time of Harris's own choosing and at Harris's discretion. Seclion 3.04 Required Programs and H.irti►vare (a) 'I'lic Organization acknowledges that the use of the Software requires that the Organization obtain and install additional required sofi.tvare programs (the "Required Programs"), as detailed in the attached Schedule "A". The Organization agrees that the acquisition of the Required Programs shall be at its sole cost and that the cost Ihereof is not included in the fees herein, including for any future updates about which Organization is provided with commercially reasonable advance notice. (b) The Organization acknowledges that the use o1' the Soltwarc requires the that the Organization have at minimum the hardware as may be referenced by Harris programs (the "..Required Hardware") as detailed in the attached Schedule "A". Organizatii n's hardware most also be of'sufticient quality, condition and repair, and the Organization agrees to mainlain its hardware in the appropriate quality, condition anel repair at its sole cost and expense, in order to facilitate the achievement of the proper installation and implementation of the Software in accordance the Software Implementation Services Agreement; Upgrades about which Organization is provided with commercially reasonable advance notice; and the general use of the SORware by Organization. If Harris determines that Organization's hardware is not of sufficient quality, condition and repair, Harris shall notify Organization in writing of the hardware deficiencies. Organisation will strive to remedy any hardware deficiencies within 30 days of notification. In no event shall Harris be responsible for such hardware maintenance, except as contracted for in writing with the Organization. Article IV. FEES AND PAYMENT S Section 4.01 Fees and Payments (a) The Organization agrees to pay I -tan -is the total license fees detailed in Schedule "B" (the "License Fees") in accordance with the payment schedule set out in Schedule `-`B". The. - 10- License Fees and any other fees set out in this Agreement are exclusive of taxes. Organization agrees to pay all foreign, federal, state, provincial, county or local income taxes, value added taxes, use, personal, property, sales and any other taxes, tariff, duty or similar charges that may be levied by a taxing authority (excluding taxes on Harris' net income). (b) The License fee is based on the total number of Receipts in each calendar year (or with respect to the first year, the pro -rated amount). Where the Organization generates Receipts in any subsequent calendar year that exceeds the Annual Receipt Volume, the Organization shall inform Harris of such additional number of Receipts (or pursuant to Harris's audit rights under Section 2.04(c), based on the number of Receipts determined by Harris) and thereafter Harris shall invoice for the then current year (and any applicable previous year) the additional License fee applicable to such additional Receipts. (c) Except for any aspect of the License fee which is payable on the Effective Date, during the Term Organization shall have thirty (30) days after the date outlined in the payment schedule in Schedule "B" to pay Harris the applicable License Fee (or part thereof). Section 4.02 Additional License Fee (a) Despite the information provided in Schedule "B" to this Agreement, whenever Harris has the right to invoice Organization for additional License Fees based on the total number of Receipts, the new License Fee will be based according to the Additional Receipt Volume Rate Card as shown in Schedule B. (b) The License Fee cannot be decreased even where the volume of Receipts decreases. Article V. REMEDIES, LIABILITY AND INDEMNITY Section 5.01 Remedies and Liability (a) Termination of this Agreement shall not affect any right of action of either party arising from anything which was done or not done, as the case may be, prior to the termination taking effect. (b) The Organization and Harris recognize that circumstances may arise entitling the Organization to damages for breach or other fault on the part of Harris arising from this Agreement. The parties agree that in all such circumstances the Organization's remedies and Harris's liabilities will be limited as set forth below and that these provisions will survive notwithstanding the termination or other discharge of the obligations of the parties under this Agreement. (r) EXCEPT DAMAGES ARISING OUT OF (' O CONFIDENTIALITY ITYOBLIGATIONS, (b) HARRIS' S INTENTIONAL ITS L MISREPRESENTATION, GROSS NEGLIGENCE OR WILLFUL MISCONDUCT, OR (c) HARRIS'S INDEMNIFICATION OBLIGATIONS SET FORTH IN SECTION 5.03, BOTH PARTIES AGREE THAT HARRIS'S LIABILITY (UNDER BREACH OF CONTRACT, NEGLIGENCE, STRICT LIABILITY OR OTHERWISE), IF ANY, FOR ANY DIRECT DAMAGES RELATING TO OR ARISING UNDER THIS LICENSE AGREEMENT SHALL NOT EXCEED IN THE AGGREGATE THE LICENSE FEES PAID TO HARRIS BY THE ORGANIZATION IN CONNECTION WITH THIS LICENSE AGREEMENT. IN ADDITION TO THE FOREGOING, NEITHER PARTY SHALL BE LIABLE FOR CONSEQUENTIAL, INCIDENTAL, INDIRECT, SPECIAL OR OTHER DAMAGES OF ANY KIND, INCLUDING BUT NOT LIMITED TO LOST REVENUE OR LOSS OF PROFITS, EVEN IF SUCH OTHER PARTY HAS BEEN ADVISED OF THE LIKELIHOOD OF THE OCCURRENCE OF SUCH DAMAGES AND NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY. CLAUSES (i) AND (ii) SHALL APPLY IN RESPECT OF ANY CLAIM, DEMAND OR ACTION BY A PARTY IRRESPECTIVE OF THE NATURE OF THE CAUSE OF ACTION UNDERLYING SUCH CLAIM, DEMAND OR ACTION, INCLUDING, BUT NOT LIMITED TO, BREACH OF CONTRACT OR TORT. Section 5.02 Intellectual Property Indemnity (a) In the event there is a third party claim against Organization alleging that Organization's use of the Software in accordance with this Agreement constitutes an infringement of a Canadian or United States' patent, copyright, trade -mark or trade secret or other intellectual property that is valid and enforceable in Organization's jurisdiction, Harris shall, at its expense, defend and indemnify Organization and pay any amounts finally awarded by a court of competent jurisdiction or agreed to in a settlement approved by Harris in advance, provided that:(i) Organization gives Harris prompt written notice of any such claim and full opportunity to defend the same; (ii) Organization has not made any admissions or entered into any settlement negotiations either prior to or after providing notice to Harris of the applicable claim except with Harris's prior written consent, (iii) Harris has sole control of the defense of any claim or proceeding and all negotiations for its compromise or settlement; and (iv) Organization assists and provides information to Harris throughout the action or proceeding. (b) Harris' liability for any claims under this Section 5.03 shall be reduced to the extent such claim arises from (i) alterations or modifications to the Software by Organization or a third party in any manner whatsoever except with the prior written consent of Harris; (ii) - 12- combination, integration or use of the Software with software, hardware or other materials not approved by Harris where such claim would not have arisen but for such combination, integration or use; (iii) use of the Software other than in compliance with this Agreement; (v) compliance with the Organization's written instructions or specifications; or (vi) use of the Software after notice from Harris that it should cease due to possible infringement. (c) Any breach by Organization of its covenants under this Section 5.03 shall nullify this indemnity but not the sole right of Harris to have full and complete authority of the defense to defend such claim or proceeding and of all negotiations related therewith and the settlement thereof. In the event that the Organization's use of the Software is finally held to be infringing or Harris deems that it may be held to be infringing, Organization agrees that the only remedy available to it is that Harris shall be, at Harris's election, for Harris to: (1) procure for the Organization the right to continue use of the Software; or (2) modify or replace the Software so that it becomes non -infringing. (d) The foregoing states Harris's entire liability, and the Organization's exclusive remedy, with respect to any claims of infringement of any copyright, patent, trade -mark, trade secret or other intellectual property and property interest rights relating to the Software, or any part thereof or use thereof. (e) Organization may, at Organization's sole cost and expense —which is outside the scope of this indemnity —retain counsel of its own choosing who shall be permitted to attend all settlement conferences and hearings or other court appearances (except where the court has specifically made an order against such attendance) related to the proceeding. (f) The indemnity provisions of this Section 5.03 shall not apply to any Third Party Software and System Software and Harris shall have the right to substitute the licensor of the Third Party Software to perform Harris's obligations hereunder and the Organization agrees to release Harris from any obligations related to such Third Party Software. Article VI. CONFIDENTIALITY Section 6.01 Confidentiality The parties each acknowledge that each party may receive Confidential Information from the other party or otherwise in connection with this Agreement. Each of the parties agree: (i) to maintain the Confidential Information of the other party in confidence and to take all reasonable steps, which shall be no less than those steps it takes to protect its own confidential and proprietary information, to protect the Confidential Information of the other party from unauthorized use, disclosure, copying or publication; - 13 - not to use the Confidential Information of the other party other than in the course of exercising its rights or performing its obligations under this Agreement; (iii) not to disclose or release such Confidential Information except to the extent required by applicable law or during the courses of or in connection with any litigation, arbitration or other proceeding based upon or in connection with the subject matter of this Agreement, provided that the receiving party shall first give reasonable notice to the disclosing party prior to such disclosure so that the disclosing party may obtain a protective order or equivalent and provided that the receiving party shall comply with any such protective order or equivalent; and (iv) not to disclose or release such Confidential Information to any third person without the prior written consent of the Organization, except for authorized employees or agents of the receiving party who have a need to know such information for the purpose of performance under this Agreement and exercising its rights under this Agreement, and who are bound by confidentiality obligations at least as protective of the disclosing party's Confidential Information as this Agreement. Article VII. TERMINATION Section 7.01 Termination This Agreement may be terminated as follows: (a) If either party should fail to comply with its obligations under this Agreement, the other party must notify the breaching party in writing of such default (a "Default Notice"). Upon receipt of a Default Notice, the breaching party must correct the default at no additional cost to the other party, or issue a written notice of its own disputing the alleged default, in either case within thirty (30) days immediately following receipt of a Default Notice. If the breaching party fails to (i) issue a notice disputing the alleged default within such thirty (30) day period; or (ii) correct the default within ninety (90) days following receipt of the Default Notice, the other party may terminate the whole of this Agreement effective upon written notice to the other party. (b) If Organization has failed to pay the license fees in accordance with Article IV then Harris shall have the right to terminate the license rights granted herein and this Agreement effective immediately upon written notice to Organization to that effect. (c) Notwithstanding any other provision of this_ Agreement, if the Organization breaches (i) any term of Section 2.03, Section 2.04 or any other intellectual property right of Harris; or (ii) its confidentiality obligations under Section 6.01, then Harris shall have the right to terminate this Agreement effective immediately upon written notice to Organization to that effect and the license rights granted herein shall immediately terminate. (d) Either party may terminate this Agreement effective immediately upon written notice to the other party if the other party: (i) becomes insolvent; (ii) becomes the subject of any -14- proceeding under any bankruptcy, insolvency or liquidation law, whether domestic or foreign, and whether voluntary or involuntary, which is not resolved favourably to the subject party within ninety (90) days of commencement thereof; or (iii) becomes subject to property seizure under court order, court injunction or other court order which has a material adverse effect on its ability to perform hereunder. (e) This Agreement shall automatically terminate in the event that the Software Implementation Services Agreement is terminated prior to the Completion of Services, as that term is defined therein, or in the event that the Support and Maintenance Agreement is terminated or expires. The termination of this Agreement shall result in the automatic concurrent termination of the Support and Maintenance Agreement and of the Software Implementation Services Agreement. Section 7.02 Effects of Termination (a) If this Agreement is terminated or expires, then within thirty (30) days following such termination/expiration, the Organization shall either return to Harris or delete the Software fi-om all of its locations (except as required under any statute related to retention requirements) and shall certify, under the hand of a duly authorized officer of the Organization, that all copies of the Software or any part thereof, in any form, within the possession or control of the Organization have either been returned to Harris or deleted. (b) Despite anything in this Agreement to the contrary, all warranties related to the Software automatically terminate upon the termination of this Agreement. Article VIII. GENERAL Section 8.01 Mediation Except where this Agreement explicitly states that this Section does not apply, the parties agree to submit any claim, controversy or dispute arising out of or relating to this Agreement or the relationship created by this Agreement to non -binding mediation before bringing a claim, controversy or dispute in a court or before any other tribunal. The mediation is to be conducted by either an individual mediator or a mediator appointed by mediation services mutually agreeable to the parties. Such mediator shall be knowledgeable in software system agreements. The mediation shall take place at a time and location which is also mutually agreeable; provided; however, in no event shall the mediation occur later than ninety (90) days after either party notifies the other of its desire to have a dispute be placed before a mediator. The costs and expenses of mediation, including compensation and expenses of the mediator (and except for the attorneys' fees incurred by either party), is to be shared by the parties equally. If the parties are unable to resolve the claim, controversy or dispute within ninety (90) days after the date either party provides the other notice of mediation, then either party may bring and initiate a legal proceeding to resolve the claim, controversy or dispute unless the time period is -15- extended by a written agreement of the parties. Nothing in this Section shall inhibit a party's right to weir injunctive relief at any time. Section 8.02 Addresses fir NNice ,Any notice required or permitted to be given to any party to this Agreement shall be given in writing, and shall be delivered personally, mailed by prepaid registered post or sent by facsimile to the appropriate address or facsimile number set out below. Any such notice shall be conclusively deemed to have been given and received on the day on Which it is deliverer) or transmitted (or on the next succeeding business day if delivered or received by facsimile alter 5:00 p.m, local tinie on the date of delivery or receipt, or if delivered or received by facsimile on a day other than a business day), if personally delivered or sent by facsimile or, ifmailed, on the third business day following the date of mailing, and addressed, in the case of Harris, to: N. HARRIS COMPUTER CORPORATION Antares Drive, Suite 400 Ottawa, Ontario K213 8C4 Attention: CIE-0 Telephone: 613-226-551 1, extension 2149 With a copy to: Icgal@harriscomputer.com and in the case of the Organization, to: City of Huntington Beach 2000 Main Street Huntington Beach, CA 92649 Attention: Jim Slobojan, Fiscal Services Manager Telephone: 714-960-8820 With a copy to: j7_ilChS(�4su'IctIv-hb.or',.? Each party may change its particulars "respecting poticc, by issuing notice to the other party in the manner described in this Section 8.02. Section 8.03 Assig-nment Neither party may assign any of' its rights or duties under this Agreement without the prior written consent of the other party, such consent not to be unreasonably withheld, except th_rt either party may assign to a successor entity in the event of its dissolution, acquisition, merger, sale of substantially all of its assets, or other change in legal status. The Agreement shall inure to the benefit of and be binding upon tite parties to this Agreement and their respective successors and permitted assigns Section 8.04 Reomanizations The Organization acknowledges that the Lieense Fee set out in this Agreement has been established on the basis of the structure of the Organization as of the Effective mate. To the extent that the Organization amalgamates, consolidates or undergoes any similar form of corporate reorganization or transition (a "Reorganization"), and the resulting entity, (whether or not the Organization is the resulting or continuing entity) requires additional Licenses to support the system, Harris shall he entitled to receive, and the Organization shall pay, an additional License Pee based on the then prevailing License Pee in effect. The provisions of this Section 6.07 shall apply to any subsequent Reorganizations occurring following the first Reorganization. The provisions of this Section 8.04 shall not apply where the Organization undergoes a Reorganization involving only other organizations that already [lave a valid license to Usethe same Software. Section 8.05 Entire Agreement This Agreement shall constitute the entire agreement between the parties hereto with respect to the subject matter hereof: No other understandings, agreements, representations, warranties or other platters, oral or written, purportedly .agreed to or represented by or on behalf of Harris by any of its employees or agents, or contained in any sales materials or brochures, shall be deemed to bind the parties hereto with respect to the subject matter hereof. However, the parties agree that two other agreements are being entered into concurrently with this Agreement which are in addition to any of the Third Party Software and System Software agreements detailed herein. These two other agreements are the Support and Maintenance Agreement and the Software Implementation Services Agreement, each of which are separate agreements and are binding in their own right and upon their sawn terms. The terms of this Agreement may not be changed except by an amendment signed by an authorized representative ofcach party. No provisions in any purchase orders, or in any other documentation employed by or on behalf of the Organi/mlion in connection with this Agreement, regardless of (lie elate of such documentation, will affect the terms ol'this Agreement, even if such document is accepted by Harris. with such provisions being deemed deleted. - f7- Section 8.06 Section Headings Section and other headings in this Agreement are for reference purposes only, and arc in no way intended to describe, interpret, define or limit the scope or extent orally provision hereof. Section 8.07 Governing -Law This Agreement shall be governed by the laws of the State. of Calitbrnia in which Organization is located. Section 8.08 Trial by Jury Organization and Harris hereby waive, to the Fullest extent permitted by appl►cable law, the right to trial byiury in any action, proceeding or counterclaim filed by any party, whether in contract, tort or otherwise, relating directly or indirectly to this Agreement or anv acts or omissions of Harris in connection therewith or contemplated thereby. Section 8.09 IIII-validitV The invalidity or unenforceability of any provision or covenant contained in this Agreement shall not affect the validity or enforceability of any other provision or covenant herein contained and Tiny such invalid provision or covenant shall be deemed modified to the extent necessary in order to render such provision valid and enforceable; if such provision n►ay not be so served, it shall be severed and the remainder of this Agreement shall remain in fill force and effect. Section 8.10 Waiver No waiver of any breach of any provision of this Agreement shall constitt►tc a waiver of any prior, concurrent, or subsequent breach of the same or any other provisions hereof, and no waiver shall be effective unless made in writing and signed by an 7utll0l-iZCd representative of the waiving party. Section 8.11 Counterparts This Agreement may be executed in counterparts (whether by It►csintfle signature, in an email PDI: or otherwise).. each of which when so executed shall constitt►te an original and all of which together shall constitute one and the same instrument. Section 8.12 Further Assurances The parties shall do all such things and provide all such reasonable assurances its may he rectttired to consummate the transactions contemplated hereby, and each party shall provide such liurther documents or instruments required by any other party as may be reasonably necessary or desirable to effect the purposes of this Agreement and carry out its provisions. Additionally, the Organization agrees that it may be listed as a being a `customer' of I larris when Harris responds to other customer requests or potential customer requests (including all third -IB- party requests for proposals} which may include data such as the name and size of Organization, the- volume of receipts generated by Organization, and other generic inforinaiion about Organization which may include published contact information. Section 8.13 Allocation of Risk Organization acknowledges that the limited warranties, disclaimers and limitations of liability contained in this Agreement are fundamental elements of the basis of bargain between Organization and Flarris and set forth an allocation of risk reflected in the fees and payments due hereunder. Section 8.14 Relatinnship The parties are and shall at all times remain, independent contractors in the performance of this Agreement and nothing herein shall be deemed to create a joint venture, peg-tnership or agency relationship between the parties. Neither party will have the power to bind the other party or to contract in the name of or create any liability against the other party in any way for any purpose. Neither party wil I be responsible for the acts or defaults of Cite other party or of those for whom the other party is in law responsible. Section 8.15 U.S. Government End -Users The Software (1) was developed exclusively at private expense; (ii) is a trade secret of Harris for the purposes of the Freedom of Information Act; (iii) is "commercial computer software" subject to limited utilization (Restricted Rights); and (iv) including all copies ofthe Software, in all respects is rind shall remain proprietary to Harris or its licensors. Use, duplication or° disclosure by the U.S. Government or any person or entity acting on its behalf is subject to restrictions for soflivarc developed exclusively at private expense as set forth in: (i) for the DoD, the Rights in Technical Data and Computer Software clause at DFARS 252.227-7013 and/or 252.227.7014 or any successor clause, and (ii) for all government agencies, the Commercial Computer Sollware — Restricted Rights clause at FAR 52.227-19 or any successor clause. 'fhe U.S. Government must refrain from changing or removing ally insignia or lettering from tlrc Software or from producing copies of the Soliware and manuals (except one copy ofthe Sofhvare for backup purposes). Use ofthe Software shall be limited to the facility f'orwhich it was acquired. All other U.S. Government personnel using the Software are hereby on notice that use of•the Sotfivare is subject to restrictions that are the same as, or similar to, those specified above. The manufacturer/owner is N. Harris Cortlputer Corporation, I Antares Drive, Suite 200, Ottawa. ON If 2E 8C4. Section 8.16 Eguitiblc Relief Organization acknowledges and agrees that it would be difficult to compute the monetary loss to Harris arising from a breach or threatened breach ohthis Agreement and that, accordingly, Harris will be entitled to specific perfonnance, injunctive or other equitable relief in -19- addition to, or instead of monetary damages in the event of a breach or threatened breach of this Agreement by Organization. Section 8.17 Langust�e T'he parties confirm that it is their wish that this Agreement as well as all other documents relating to this Agreement, including notices, be drawn up in English only. Les parties rill', presentee confirment que c'cst ]cur MOW que la presentc convention de n3eme que tour les documents, y compris Ies avis, s'y ratlachant, soient rediges en Anglais seulement. Section 8.18 Force Maicure No default, delay or failure to perlorm on the part of Harris shall be considered a breach of this Agreement where such default, delay or failure is due to a force majeure or to ci,-cLill) stances beyond its control. Such circumstances will include, without limitation, strikes, riots, civil disturbances, actions or inactions concerning government authorities, epidemics, war, terrorist acts, embargoes, severe weather, fire, earthquakes, acts of God or the public enemy or default of a common carrier or other disasters or events. Section 8.19 Survival The following sections and articles shall survive the termination or expiration of this Agreement: Sections 1.01, 1.02, 2.03, 2.04, 2,057 2.06„ 3.02, 3.03, 3.04, Articles IV, V, VI, Section 7.02, Article Vill and any other previsions which are required to ensure that the parties fully exercise their rights and obligations hereunder. -20- IN WITNESS WHEREOF the parties hereto have duly execkitcd this .Agreement to be effective as of the date first written above. CONSULTANT, SYSTEM INNOVATORS, A DIVISION CITY OF HUNTdNOTOAh CH, a municipal O1� N. hIARRIS CUYiPUTER corporatepit 1,1111tate ornia CURYURATIUN /4%a D A. COMPANY NAME ay: i prii,t ntum: ITS: tchyle one) Chainnan 'r idcnl.l ice President AND By: ITS: (circle our ccrt WraChicf Pinaiui;d (M)Asst. Scuctary - Trea.wrvr Mayor IZ1=CElVE ND F[L —m4ou �&�anzd� City Clerk --eg 'Wes INITIATED AND AI'TROVEU: Chief financial Officer RGV'N ND APPIZOVCD: City I pager -- -21 Schedule "A" Description of Sofhvare Covered Programs - iNovah Software - 750,000 Annual Receipts I, JDE GL Export 2, RPS Payment Impart 3. Union Batik Import 4. Official Payments import 5. Cummins Cash Munager Impart 6. CIS Infinity Real Time Integration 7. JDE GL & Activity Validation Integration 8, JDE Billing Real Time Integration 9, Acccla Rcal Time Integration 10. RecTrac Real Time Integration 11. Invoice Cloud Credit Card Integration 12, Image Cash Letter Module — [in ion Bank Required Programs (provided by Organization) Microsoft Windows Application Server Component Requirements Windows Server 2012 R2 ,Net Framework 4.6 Internet Information Services (I1:S) SQL Server Express 2014 Required Hardware (provided by Organization) Application Server Component. Recom iiended Processor and CPU (Core) AMD or Intel, 4 Care Processor, 3.2GHz 8M0 Cache Memory 8 GB Storage 2x100 GB 10k 5A5 RAID RAID 1 Database Server Microsoft SQL Server Operating System Requirements SQL Server 2014 running on Windows Server 2012 R2 SQL Server Reporting Services (Corresponds to the version and edition of SQL Server installed.) Component Recommended Processor and CPU (Core) AMD or Intel, 6 Core Processor, 2.4GHz TOMB Cache Memory 24 GB Storage 2x100 GB 15k SAS RAID RAID 1 iNovah2 Workstation Requirements Sofhvare Requirements Windows 8.1 or Windows 10 .NET Framework 4.6 Internet Explorer I I Hardware and OLE for Retail POS (OPOS) drivers Hardware Requirements The following table identifies the minimal configuration necessary to operate the iNovah Cashier Module. Component Recommended Processor Intel i5 or AMD Equivalent Processor, 3.6Ghz 6MB Memory 4 GB Storage 40GB Ultra ATA/100 720ORPM Hard Drive Peripheral Monitor, keyboard and mouse Schedule `B" License Fees and Payment Schedule Novak Sofhvare License and Modules iNovah Enterprise License Up to 750,000 Annual Receipts, Unlimited Users, Unlimited Workstations $230,000 iNovah License Discount $(120,000) Interface Module(s) — Real Time CIS Infinity Real Time Interface $10,000 JDE Billing Real Time Interface $20,000 JDE GL Validation Real Time Validation for manually entered GL codes $10,000 Accela Real Time Interface $15,000 RecTrac Real Time Interface $10,000 Credit Card Interface (Invoice Cloud) $20,000 Additional Modules JDE GL Export $10,000 RPS Payment Import $10,000 Union Bank Import (Lockbox) $10,000 Image Cash Letter Module (Import) $10,000 Official Payments Import $5,000 Cummins Cash Manager Import $10,000 Multi -interface discount $(56,000) TOTAL LICENSE COSTS $194,000 Payment Schedule Milestone Description Value Final Contract Executed $97,000 50% of Total Licenses Fees Installation of Base iNovah product in test environment $97,000 50% of Total Licenses Fees Total $194,000 100% of Total License Fees Additional Receipt Volume Rate Card Additional Receipt Volume Additional License Cost Additional Support and Maintenance For every additional 100,000 25,000.00 $5,000.00 receipts Schedule "C" Third Party Software Licenses and Third Party SoftwHre Terms No Third Pary Software is being provided to Organization. Schedule "D" Svstena Softivrare No System Software is being provided to Organization. ATTACHMENT #4 SOFTWARE CONTRACT SERVICES SERVICE: Enterprise Cashiering Software SERVICE DESCRIPTION: Purchase of enterprise cashiering software, along with the necessary implementation services to replace current cashiering system. VENDOR: System Innovators, iNovah Cashiering Software OVERALL RANKING: 1 SUBJECT MATTER EXPERTS/RATERS: 1. Treasury Manager, 2. Fiscal Services Manager, 3. Account Technician Supervisor, 4. Senior Info Technology Analyst, 5. Info Technology Analyst II I. MINIMUM QUALIFICATIONS REVIEW • Written Proposal Score: 330 System Innovators — Minimum Qualifications Review Total Weighted Maximum Criteria Score Score Clarity 45 45 Functional Requirements 70 75 Experience & Qualifications 58 60 Compatibility 42 45 Acceptance of Terms 28 30 Price 45 45 Implementation & Support 42 45 Total II. DUE DILIGENCE REVIEW • Interview Ranking: 1 • Vendor Demonstration Ranking: 1 ystem Innovators — Summary of Review • Staffing — Excellent • Experience — Excellent • Qualifications — Excellent • Implementation - Excellent • In use by the cities of Anaheim; Santa Ana; Peoria, AZ; Kansas City, MO; and Henderson, NV. System )nnovators — Pricing; • Total 5 year software and maintenance is $697,014.47 Item 10. - 81 HB _J34- SOFTWARE CONTRACT SERVICES SERVICE: Vendor #2 SERVICE DESCRIPTION: Purchase of enterprise cashiering software, along with the necessary implementation services to replace current cashiering system. VENDOR: #2 OVERALL RANKING: 2 SUBJECT MATTER EXPERTS/RATERS: 1. Treasury Manager, 2. Fiscal Services Manager, 3. Account Technician Supervisor, 4. Senior Info Technology Analyst, 5. Info Technology Analyst II I. MINIMUM QUALIFICATIONS REVIEW Written Proposal Score: 281 System Innovators - Minimum QualificationsReyiew Total Weighted Maximum Criteria Score Score Clarity 39 45 Functional Requirements 65 75 Experience & Qualifications 52 60 Compatibility 36 45 Acceptance of Terms 26 30 Price 27 45 Implementation & Support 36 45 Total 345 II. DUE DILIGENCE REVIEW • Interview Ranking: 2 • Vendor Demonstration Ranking: 2 System Innovators — Pricing • Total 5 year software and maintenance is $1,226,255 HB -335- Item 10. - 82 City of Huntington Beach 2000 Main Street ♦ Huntington Beach, CA 92648 (714) 536-5227 ♦ www.huntingtonbeachca.gov Office of the City Clerk Robin Estanislau, City Clerk January 23, 2018 N. Harris Computer Corporation 1 Antares Drive, Suite 400 Ottawa, Ontario K2E 8C4 Attn: CEO Dear Sirs: Enclosed for your records are fully executed copies of the "Support and Maintenance Agreement Between System Innovators, A Division of N. Harris Computer Corporation and the City of Huntington Beach," the "Software License Agreement Between N. Harris Computer Corporation and the City of Huntington Beach," and the "Software Implementation Services Agreement Between N. Harris Computer Corporation and the City of Huntington Beach." Sincerely, Robin Estanislau, CIVIC City Clerk RE:ds Enclosure Sister Cities: Anjo, Japan o Waitakere, New Zealand Esparza, Patty From: Saraye, Shari Sent: Thursday, January 04, 2018 3:20 PM To: Agenda Alerts Cc: Adams, Chuck, Slobojan, Jim. Zacks, Joyce Subject: 1/16/17 RCA - Cashiering Software Hello All, Wanted to give you all a heads up on what is going on with this RCA for the Cashiering Software. Below is an image of the RCA and attachments we will need to go with the Cashiering RCA. Att#2jMaintenance Agreement anc,,Att#3 , Software License Agreement are being updated by the City Attorneys office the ones I uploaded to SIRE are place holders, you can disregard the originals I submitted before the 12/18 Council meeting. Once we get the final versions I will walk them up to the City Clerk's Office. - I '[}] Att#I Implementation & Services Agree... 1/4/2018 243 PM Adobe Acrobat D... 2,665 KB a Att#2 Maintenance Agreement.docc 1/4/2018 2:26 PM Att#3 Software License Agreement.docr 1/4/2018 2:26 PM f�} Att*4 Contrace Services Review Sheet.pdf 12/12/2017 5:21 PM Final Version - RCA Cashiering Software.... 1/4/2018 2:19 PM If you have any questions please feel free to call or email me. Thank you, Shari Saraye Assistant to the CFOiFinance City of Huntington Beach Tel: 714 536-56301 Fax: 714 536-5934 Shari. Sa rave(o)su rfcity-Worc Microsoft Office ... 49 KB Microsoft Office ... 75 KB Adobe Acrobat D... 169 KB Microsoft Office... 38 KB Dept. ID FIN17-018 Page 1 of 3 Meeting Date. 12/18/2017 lgpw deb —�—o �N1)�Dib C'DkT1NUe- "Tl� 1 / vI13 CITY OF HUNTINGTON BEACH REQUEST FOR. CITY COUNCIL ACTION MEETING DATE: 12/18/2017 SUBMITTED TO: Honorable Mayor and City Council Members SUBMITTED BY: Fred A. Wilson, City Manager PREPARED BY: Chuck Adams, Interim Chief Financial Officer SUBJECT: Approve and authorize execution of three contracts for N. Harris Computer Corporation for the replacement of the City's Cashiering System and Software License, in the amount of $491,020 and the first year of maintenance and support for $38,800 Statement of Issue: The City's current cashiering software is responsible for the processing of approximately $130 million in annual revenue for items such as utility bill payments, recreational classes, transient occupancy taxes, permits and parking revenue. The system is 14 years old and is no longer supported by the current vendor. A Request for Proposals for a new system was issued on October 4, 2016, notifying 30 prospective bidders. Staff is recommending iNovah's cashiering software, a Harris Computer Corporation company. Financial Impact: The cost to purchase and implement the system is $491,020 which is comprised of: a total of $194,000 for the new software and licenses; $169,200 for the specialized programming expertise required to integrate the new cashiering software with the City's 12 other stand-alone software systems that must interface with the cashiering software and general ledger on a nightly basis; and, $127,820 for software customization, testing, project management, and staff training. The first year's maintenance and support cost is $38,800 post go -live, for a total cost of $529,820. Budgeted funds are available in the Non -Departmental account 10040101.84000 for equipment replacement. Future costs of maintenance and support will be included in future budget submittals. The cost of the system will be allocated to operating funds based on FY 15/16 revenues processed through the current cashiering system. FUND Amount General Fund 56.4% $298,818.48 Water Fund 27.8% $147,289.96 Sewer Fund 7.7% $40,796.14 Refuse Fund 8.1 % $42,915.42 TOTAL 100% $529,820 Recommended Action: Approve and authorize execution of three contracts for N. Harris Computer Corporation for the replacement of the City's Cashiering System and Software License, in the amount of $491,020 and the first year of maintenance and support for $38,800. HR _347- Item 19. , 1 Dept. ID FIN17-018 Page 2 of 3 Meeting Date: 12/18/2017 Alternative Action(s): Do not approve the purchase and instruct staff accordingly. Analysis: Background -The City's current cashiering system, Paypoint, is 14 years old and, no longer supported by the vendor. This requires extensive daily support from both Information Services and Finance staff. Paypoint is limited to operate only on older versions of Windows (2000 or prior). Customer Service staff must navigate through numerous screens in order to access account information on the different software systems used within all City departments. In addition, the system is not efficient with the City's current financial system, JD Edwards. This often requires staff to work after hours or to be on -call to troubleshoot problems and glitches. System Selection Process — Staff created a committee which included subject matter experts from the Information Services and Finance Departments. This committee worked with an IT consultant to develop a Request for Proposal (RFP) for the purchase and implementation of a new cashiering software system. The proposal included a list of 223 functional requirements that the City requires in an enterprise cashiering system. The city received proposals from four firms: CORE Technologies US eDirect (Neptune POS Systems) DataTech Corporation (NCR Counterpoint) System Innovators (iNovah) Staff began the work of reviewing proposals and short -listing those systems that best fit the City's functional requirements. Of the four proposals received, staff determined that Data Tech Corporation did not meet the City's needs and, therefore, would not warrant further review. The remaining three companies, Neptune, iNovah, and CORE Technologies, were asked to provide on -site demonstrations of their systems. Concurrent to the demonstrations, staff conducted reference checks. After the demonstrations, staff recommended two firms to continue in the process: iNovah, and CORE Technologies. Staff reviewed pricing of the final two vendors. CORE Technologies was approximately $450,000 higher than iNovah over a 5 year period. Based on the needs of the City, it was determined that iNovah would provide the best level of service. To further validate the committee's recommendation, a final check was performed by evaluating the iNovah software in a real -world environment. Staff visited the City of Anaheim to examine how the system performs in a similar environment. From a functionality standpoint, iNovah was more intuitive, much easier to navigate than the other systems and helped staff create greater efficiencies in their daily work processes. Based on system functionality and long-term cost, staff selected Systems Innovator's iNovah cashiering software and began the process of negotiating final contract terms. iNovah is a N. Harris Computer Corporation company. Implementation and testing of the system is estimated to take between 6-9 months from start to the go -live date. Systems Innovator's will provide the ongoing maintenance and support services at 20% of the software license cost of $194,000. This is within industry's standards of 18-25%. The ongoing maintenance agreement costs will ensure the support of the systems' twelve custom interfaces, quarterly software maintenance and functionality updates. Toll Free telephone support services, email support service, peripheral device support, and regulatory and payment industry updates, including ongoing PCI compliance updates are also provided. In year one, 16 hours of dedicated after hours support at no additional charge is available. Item 19. - 2 to Q -348- Dept. ID FIN17-018 Page 3 of 3 Meeting Date: 12/18/2017 Environmental Status: Not applicable. Strategic Plan Goal: Enhance and Maintain City Service Delivery Strengthen Economic and Financial Sustainability Attachment(s): 1. Software Implementation Services Agreement with N. Harris Computer Corporation 2. Support and Maintenance Agreement with N. Harris Computer Corporation 3. Software License Agreement with N. Harris Computer Corporation 4. Software Contract Services Review Sheets HB -349- Item 19. - 3 ATTACHMENT #1 SOFTWARE IMPLEMENTATION SERVICES AGREEMENT THIS SOFTWARE IMPLEMENTATION AGREEMENT made as of the day of ("Effective Date"). BETWEEN: N. HARRIS COMPUTER CORPORATION ("Harris") -and- THE CITY OF HUNTINGTON BEACH ("Organization") RECITALS The Organization wishes retain Harris to perform certain software implementation services as set out herein in respect of certain Harris software licensed by Organization pursuant to a Software License Agreement/entered into between the parties on the same date as the Effective Date. 2. The Organization and Harris agred to enter into three (3) separate agreements each dealing with a separate aspect of the software: a software license agreement and a support and maintenance agreeriient each dated the same date as the Effective Date (the "Software License Agreement" and "Support and Maintenance Agreement", respectively), and this Software Implementation Services Agreement. NOW THERE, FORE/ in consideration of the mutual covenants set out in this Agreement and for other good and valuable consideration (the receipt and sufficiency of which is hereby acknowledged), the,parties agree as follows: ARTICLE I INTERPRETATION 1.1 / Throughout this Agreement, except as otherwise expressly provided, the following/words and expressions shall have the following meanings: (a) "Agreement" and similar expressions mean this Software Implementation Services Agreement, including all of its Schedules and all instruments supplementing, amending or confirming this Agreement. All references to "Articles" or "Sections" mean and refer to the specified Article or Section of this Agreement except where a different agreement is explicitly identified. -I- s (b) "Change Order" means any written documentation between the Organization and Harris evidencing their agreement to change particular aspects ,,of this Agreement. (c) "Completion of Services" means that the Software is operational and performing in substantial conformity with the specifications set out herein hand as set out in the acceptance testing criteria in the Statement of Work. For purposes of this Agreement, Completion of Set -vices will be deemed to haveroccurred on the date on which the Organization commences using the Software in a production environment. (d) "Designated Computer System" shall mean the,f brganization's platform and operating system environment which is specified ,ih the Statement of Work for the installation and operation of the Software. �x (e) "Go -Live" means the event occurring when the Organization first uses the Software as the Organization's predominant Software. (f) "Required Programs" has the meaning set out in Schedule "A" of the Software License Agreement. (g) "Statement of Work" means the statement of work appended hereto as Schedule "A" delineating, among other things, the Services that will be provided by Harris to Organization pursuant to'this Agreement, as such schedule may be amended or modified by mutual specific written agreement of the parties' respective representatives from time to time in accordance with the terms of this Agreement. (h) "Services" has the'meaning set out in Section 2.1 hereof. (1) "Software" shall mean the Harris software products listed in Schedule "A". The term "Software" excludes any third party software except where this Agreement explicitly states otherwise. (j) "Third' Party Software" shall mean the third party software product, if any, listed,in Schedule "A". (k) "Update" means a minor release of the Software which includes minor published ;modifications or enhancements to the Software related to a bug fix, minor additional functionality or legislative changes. An Update is designated by a rye change in the right -most digit in the version number (for example, a change from X.1 to X.2). (1) "Upgrade" means a major overhaul of the Software which is a complete new published version of the Software that modifies, revises or alters the Software and adds features, functionality or enhancements to such Software. An Upgrade is designated by a change in the number to the left of the decimal point in the version number (for example, a change from LX to 2.X. -2- S'Y Tenns not otherwise defined in this Agreement shall have the meaning attributed to it in the Software License Agreement executed concurrently with this Agreement. Any", ,' discrepancy between a defined tern in this Agreement and one in the Software License _.' Agreement shall be resolved in favour of the definition in this Agreement, to the extent that there is an inconsistency. 1.2 Schedules The Schedules described below and appended to this Agreement shall be deemed to be integral parts of this Agreement. Schedule "A" - Statement of Work Schedule "B" - Fee Structure & Payment Schedule Schedule "C" - Sample Form Change Order In the event of any conflict or inconsistency between the terms and conditions in the main body of this Agreement and the terms and conditions in any Schedule, the terms and conditions of the main body of this Agreement shall control. ARTICLE II CONSULTING SERVICES 2.1 Harris' Services r, In order to achieve the,Completion of Services, Harris agrees, subject to the terms and conditions of this Agreement;<°°lo perform the following services (the "Services") for the Organization in accordance with the relevant Statement of Work: (a) Oversee and implement the conversion from the Organization's existing software applications to Harris's Software. (b) Install the Software and perform necessary installation and configuration operations. (c) Provide training. r -3- 2.2 (i) Harris recommends a maximum of ten (10) people in each training./ class for optimal training. In any training class exceeding ten (10) people, Organization may be assessed an additional charge for additional instructors. r" (ii) Organization is required to make copies of the training4nanuals required for the training classes either by photocopy or electronic duplication each of which is subject to the restrictions and obligations contained in this Agreement. (iii) On-line reference documentation is delivered with each release. Organization may print this documentation solely for its internal use. (d) The Statement of Work describes in greater detail the Services, the method by which the Services shall be performed, any acceptance testing required by Organization, and other obligations on the part of the two parties. Despite the foregoing, any warranties or representations on the part of Harris in the Statement of Work are not binding on Harris/nd are merely provided for information purposes; the only warranties and reppresentations provided by Harris in respect of the Services and this Agreement are found in Article III . Performance by Harris a (a) Harris's Discretion -- Hary�A shall determine in its sole discretion the manner and means by which the Services shall be performed, with due consideration of Organization's concerns. Organization acknowledges that Harris has expertise in providing the Services. (b) Conduct on Orgazation's Premises -- The Services shall be performed with the Organ ization's"full co-operation, on the premises of the Organization or, if agreed to by both parties, at an alternative location. Harris agrees, while working on the Organization's premises, that Harris and its personnel shall observe the Organization's rules and policies, administrative codes, and ethics codes relating to security thereof, access to or use of all or part of the Organization's premises and/Any of the Organization's property, including proprietary and confidential information, so long as Harris is provided with such rules, policies, and codes in Avarice of Harris's and its personnel's attendance. at Organization's premises. d (c) Independence -- As an independent consultant, Organization retains Harris on an independent contractor basis and not as an employee. (d) Maintenance and Inspection -- Harris shall maintain complete and accurate records with respect to all costs and expenses incurred under this Agreement. All such records shall be clearly identifiable. Harris shall allow a representative of Organization, no more than once in a calendar year, during normal business hours and with adequate notice, to examine, audit, and make transcripts or copies of such records and any other documents created, pursuant to the Agreement. Harris shall allow inspection of all work, data, documents, proceedings, and activities -4- 2.3 related to the agreement for a period of two (2) years from the date of final payment under this Agreement unless Han -is is required to maintain such records pursuant to any law or regulation for a further period of time, after which Harris shall be permitted to destroy all such information. Performance by Organization (a) Co-operation by Organization -- The Organization acknowledges that the success and timeliness of the implementation process shall require,tlie active participation and collaboration of the Organization and its staff and,.agrees to act reasonably and co-operate fully with Harris to achieve the Completion of Services. (b) (c) (d) Required Programs and hardware -- The Organization acknowledges that in order for Harris to supply the Services that the Required Programs shall be installed and operational prior to Harris beginning the Services. The Organization further acknowledges that the operation of the.,Software requires the Organization's hardware to be of sufficient quality, condition and repair, and the Organization agrees to maintain its hardware in the "appropriate quality, condition and repair at its sole cost and expense, in order to'permit Harris to provide the Services. If the Organization has not properly.,•�installed the Required Programs and/or the hardware is of insufficient quality, condition and repair, Harris shall have the right to suspend the Services and the related scheduled time frames until Organization complies with the requirements of tlus Section 2.3(b) to Harris's reasonable satisfaction. Project Manager --.N The Organization shall appoint a project manager (the "Project Manager") who shall work closely with Harris to facilitate the successful completion of the implementation process and who shall be responsible for supervising the staff of the Organization and their co-operation with and participation"in such process. The Project Manager's duties shall be delineated in the Statement of Work. Y Compliance — The Organization shall comply with all applicable local, state, federal, and foreign laws, treaties, regulations, and conventions in connection with its "use of the Software, including without limitation those related to privacy, lectronic communications and anti -seam legislation. Organization is responsible or ensuring that its configuration and use of the Software to store or process redit card data complies with applicable Payment Card Industry Data Security standards ("PCI DSS") and The Fair and Accurate Credit Transactions Act "FACTA") requirements and shall not store credit card and social security data n the system except in the designated encrypted fields for such data. additional Organization Obligations (i) Organization shall install all Updates within a reasonable period of time of Organization's notification of their availability. However, any Update or other fix or correction designated as "critical" by Han -is shall be -5- implemented by Organization within thirty (30) days of notification to,the Organization by Harris of its availability. (ii) Organization shall notify Harris of suspected defects in any of the Software supplied by Harris. Organization shall provide, upon Harris's request, additional data deemed necessary or desirable. -by Harris to reproduce the environment in which such defect occurred (iii) Organization shall allow the use of online diagnostics on the Software supplied by Harris to Organization, if required by"Harris during problem diagnosis. Organization shall provide to Harris, at Organization's expense, access to the Designated Computer System via the Organization's firewall to communications software (e.g. PC Anywhere, WebEx, Web Demo). (iv) Organization shall ensure that its personnel are, at relevant stages of the project, educated and trained in the proper use of the Software in accordance with applicable .Harris manuals and instructions. If Organization's personnel are -not properly trained as mutually determined by Harris and Organization, acting reasonably, Organization agrees that such personnel will be trained by Harris or Organization within fifteen (15) days of determination. If Organization desires Harris to perform the required training then'Harris shall be compensated in accordance with this Agreement. (v) Organization is solely responsible for the ongoing backup of all data. Organization shall establish proper backup procedures necessary to replace critical Organizational data in the event of loss or damage to such data from any cause. Organization acknowledges that Harris is not backing up any data under this Agreement and that any loss of data as a result'of the Services is entirely an issue to be addressed by Organization and, not Harris. (vi) Organization shall provide Harris with access to qualified functional or technical personnel to aid in diagnosis and to assist in repair of the Software in the event of error, defect or malfunction. Organization shall execute a form provided by Harris that states that the Services have achieved Go -Live status and/or Completion of Services. Where the Organization has not executed such a form and has provided no information as required under subsection (viii) (B) below, then the Organization is deemed to have executed such document and Go -Live and/or Completion of Services (as applicable) is deemed to have occurred on the date the form was first provided to Organization. (viii) Organization shall have the sole responsibility for: (A) the performance of any tests it deems necessary prior to the use of -6- the Software; (B) providing information to Harris in respect of a form provided under subsection (vii) above where Organization disputes that the Services have achieved either Go -Live and/or Completion of Services. The information must be detailed enough to specifically document what functionality that is described ,in the Statement of Work has not been met, which acceptance tests' failures demonstrated that such functionality was not met, and the anticipated outcome from Organization., regarding the acceptance test that was performed. Once any disputed issues are resolved to Harris's reasonable satisfaction, Organization shall be presented the applicable form again and shall execute such form within ten (10) days, the failure of which shall deem the form to have been executed on the date first provided to Organization. Organization agrees that a dispute can only relate to issues that is directly related to an acceptance test and:is detailed in the Statement of Work; (C) assuring proper Designated Computer System installation, configuration, verification, audit controls and operating methods; (D) implementing, proper procedures to assure the accuracy of any input and the reviewing of output, and implementing procedures to restart therDesignated Computer System for recovery in the event of malfunction/error; (E) timely upgrade and keeping current all third party releases and/or software/hardware products and related license rights to meet the requirements of the Software; and (F) maintaining proper configuration settings of the Software to ensure use of the Software in compliance with applicable laws, including performing re -validation of configuration settings following the ' installation of any Updates or Upgrades. f' ARTICLE III 'REPRESENTATIONS AND WARRANTIES ,sue 3.1 Warranty Harris warrants that the Services will be performed in a professional and diligent manner by personnel who are competent in performing their individual tasks. Harris shall have no liability hereunder if the Organization has modified the Software in any manner without the prior written consent of Harris. 3.2 No Other Warranties TO THE GREATEST EXTENT PERMITTED BY LAW, EXCEPT FOR THE LIMITED WARRANTY PROVIDED IN SECTION 3.1, THE SERVICES:, ARE PROVIDED TO THE ORGANIZATION "AS IS" AND THERE ARE NO WARRANTIES, REPRESENTATIONS OR CONDITIONS, EXPRESSED OR IMPLIED, WRITTEN OR,:ORAL, ARISING BY STATUTE, OPERATION OF LAW, COURSE OF DEALING, USAGE OF TRADE OR OTHERWISE, REGARDING THEM OR ANY OTHER PRODUCT, SERVICE OR MATERIAL PROVIDED HEREUNDER OR IN CONNECTION HEREWITH. HARRIS, ITS LICENSORS AND,,,- SUPPLIERS DISCLAIM ANY IMPLIED WARRANTIES OR CONDITIONS REGARDING THE SERVICES, SOFTWARE AND MATERIALS PROVIDED HEREUNDER OR IN CONNECTIO..N HEREWITH, INCLUDING, BUT NOT LIMITED TO, WARRANTIES OF MERCHANTABLE„`QUALITY, MERCHANTABILITY, DURABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE OR NON -INFRINGEMENT. HARRIS DOES NOT REPRESENT OR WARRANT THAT THE SERVICES SHALL MEET ANY OR ALL OF THE ORGANIZATION'S PARTICULAR REQUIREMENTS, OR THAT ALL ERRORS OR DEFECTS IN THE,SOFTWARE CAN BE FOUND OR CORRECTED. NO AGREEMENTS VARYING OR EXTENDING ANY EXPRESS WARRANTIES SET FORTH IN THIS AGREEMENT" SHALL BE BINDING ON EITHER PARTY UNLESS IN WRITING AND SIGNED BY AN AUTHORIZED SIGNING OFFICER OF HARRIS. ARTICLE IV FEES AND PAYMENTS 4.1 Fees,and Payments f (a) The Organization agrees to pay Harris total fees as delineated in Schedule "B". zThe fee structure and payment schedule is outlined in the attached Schedule "B". The fees set out in this Agreement are exclusive of taxes. Organization agrees to pay all foreign, federal, state, provincial, county or local income taxes, value added taxes, use, personal, property, sales and any other taxes, tariff, duty or similar charges that may be levied by a taxing authority (excluding taxes on Harris' net income). (b) The Organization shall reimburse Harris for (1) its direct travel expenses including, but not limited to hotel, airfare, car rental, tolls, parking and airline and f' travel agent fees; (2) a travel time rate of $75.00 per hour; (3) a per diem rate of %r $70.00 for week days and a $125.00 for weekends and statutory holidays that <' includes all meal, food and telecommunications expenses (no receipts will be r -8- �p. 0 e provided); (4) a mileage charge based on the current Internal Revenue:. -Service recommended rate per mile; and (5) all other reasonable expenses incurred in the performance of Harris's duties including courier services and documentation copying or production. These costs are excluded from the total fees amount described in Section 4.1 (a). These fees and rates and those expenses that are reimbursable are specific to the first Statement of Work agreed to by the parties and thereafter the rates, fees, and applicable expenses shall be set separately for each then applicable Statement of Work as negotiated;by the parties. (c) During the term of this Agreement, Harris shall, from time to time, deliver invoices to Organization. Each invoice delivered to Organization by Han -is shall be due and payable upon receipt thereof by Organization. (d) In the event Organization fails to pay all or any portion of an invoice on or before thirty (30) days after the date it becomes due, in addition to all other remedies Harris has under this Agreement or otherwise, Harris shall have the option to suspend or terminate all Seryices under this Agreement. Suspension or termination of any such Services shall not relieve the Organization of its obligation to pay its outstanding invoices and other ongoing fees, including any applicable late charges. Where the Services are suspended, all related scheduled time frames shall be suspended and extended as necessary.. f (e) Any fees based on a fixed price agreement are provided based on the Statement of Work in existence as of the Effective Date. Any delays that result from Organization's actions, inaction, or requests for modifications — whether incorporated into a Change Order or not — will affect the basis on which Harris provided thc, fixed price; and as such, Harris reserves the right to charge for additional time and expenses where the duration of the Statement of Work is extended,, as a result of Organization's actions, inaction, or requests for modifications. 4.2 Change Orders With respect to any proposed changes to the Services defined by this Agreement, the parties will cooperate in good faith to execute Change Orders in respect thereof, and will not unreasonably withhold approval of such proposed changes. if either party causes or requests a change that, in the reasonable opinion of the other party, materially impacts the scope of the parties' ;work effort required under this Agreement, such as, but not limited to, changes in the allocation of the resources of the Organization and of Harris applied to a task, changes in completion schedules for individual tasks or for overall implementation, and changes in staffing thaf require a party to provide additional work hours, the other party may propose a change to cover the additional work effort required of it. Approval of any such proposed changes will not .be unreasonably withheld (it being acknowledged that any such material changes may require modifications to the consideration paid, and timelines governing, the Services), and any disputes regarding changes shall be handled initially by discussions between the parties which will be convened in good faith by the parties to resolve any such matters in dispute. A sample change order is presented in Schedule "C". l ARTICLE V REMEDIES AND LIABILITY 5.1 Remedies and Liability (a) Termination of this Agreement shall not affect any right of action,of either party arising from anything which was done or not done, as the case may be, prior to the termination taking efrect. (b) The Organization and Harris recognize that circumstances may arise entitling the Organization to damages for breach or other fault on -the part of Harris arising from this Agreement. The parties agree that in `all such circumstances the Organization's remedies and Harris's liabilities will be limited as set forth below and that these provisions will survive notwithstanding the termination or other discharge of the obligations of the parties under this Agreement. (i) EXCEPT FOR DAMAGES ARISING OUT OF (a) DAMAGE TO TANGIBLE PROPERTY OR ,(b) INJURY OR DEATH TO PERSONS, BOTH PARTIES AGREE.°'THAT TO THE GREATEST EXTENT PERMITTED BY APPLICABLE LAW, THE AGGREGATE LIABILITY OF HARRIS, ITS AFFILIATES AND EACH OF THEIR RESPECTIVE DIRECTORS, OFFICERS, EMPLOYEES AND SHAREHOLDERS AND ORGANIZATION'S EXCLUSIVE REMEDY WITH RESPECT TO THE SERVICES AND ANY OTHER PRODUCTS, MATERIALS OR SERVICES SUPPLIED BY HARRIS IN CONNECTION WITH THIS AGREEMENT FOR DAMAGES FOR ANY CAUSE AND REGARDLESS OF THE CAUSE OF ACTION, SHALL NOT EXCEED, 1N THE AGGREGATE, TILE FEES PAID BY ORGANIZATION TO HARRIS PURSUANT TO THE RELEVANT STATEMENT OF WORK. (ii) IN ADDITION TO THE FOREGOING, TO THE GREATEST EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL HARRIS, ITS AFFILIATES AND EACH OF THEIR RESPECTIVE (DIRECTORS, OFFICERS, EMPLOYEES AND SHAREHOLDERS BE LIABLE TO ORGANIZATION FOR ANY CONSEQUENTIAL, EMPLARY, PUNITIVE, SPECIAL, OR INCIDENTAL, INDIRECT, EX AGGRAVATED DAMAGES WHATSOEVER, INCLUDING WITHOUT LIMITATION FOR LOSS OF REVENUE, LOSS OF PROFITS, FAILURE TO REALIZE EXPECTED SAVINGS, COSTS OF SUBSTITUTE GOODS OR SERVICES, LOSS OF DATA, OR LOSS OF BUSINESS OPPORTUNITY ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT. (iii) CLAUSES (a) AND (b) SHALL APPLY IN RESPECT OF ANY CLAIM, DEMAND, ACTION, OR PROCEEDING HOWSOEVER ARISING BY A PARTY IRRESPECTIVE OF THE NATURE OF THE -10- CAUSE OF ACTION UNDERLYING SUCII CLAIM, DEMAND, ACTION, OR PROCEEDING INCLUDING, BUT NOT LIMITED TO, BREACH OF CONTRACT, RESCISSION OF CONTRACT,, --- (INCLUDING FUNDAMENTAL BREACH), TORT (INCLUDING NEGLIGENCE), BREACH OF TRUST, OR BREACH OF FIDUCIARY DUTY, EVEN IF HARRIS HAS BEEN ADVISED OF fi THE LIKELIHOOD OF THE OCCURRENCE OF SUCH DAMAGES OR SUCII LOSS OR DAMAGE IS FORSEEABLE AND NOTWITHSTANDING ANY FAILURE OF ESSENTIA.L`PURPOSE OF ANY LIMITED REMEDY. 5.2 Allocation of Risk The parties agree that the limited warranties, disclaimers and limitation of liability as set out in in this Agreement are fundamental elements of the basis of bargain between Harris and Organization and set forth an allocation of risk reflected in,the fees and payments hereunder. 5.3 Remedies Where remedies are expressly afforded by this Agreement, such remedies are intended by the parties to be the sole and exclusive remedies of the Organization for liabilities of Harris arising out of or in connection with this Agreement, notwithstanding any remedy otherwise available at law or in equity. ARTICLE VI GENERAL 6.1 Force Ma.jeure , Except for Organization's failure to make any payments owing under this Agreement when due, neither party shall be liable for delay or failure in performance resulting from acts beyond the control of such party including, but not limited to, acts of God, acts of war or of the public enemy, riots, fire, flood, or other natural disaster, acts of government, strike, walkout, communication line or power failure, failure in operability or destruction of the Organization's computer, or failure or inoperability of any software other than the Software. Any applicable. delivery schedule shall be extended by a period of time equal to the time lost because of any such delay. 6.2 Confidentiality The parties each acknowledge that each party may receive Confidential Information from the other party or otherwise in connection with this Agreement. Each of the agree: (i) to maintain the Confidential Information of the other party in confidence and to take all reasonable steps, which shall be no less than those steps it takes to protect its own confidential and proprietary information, to protect the Confidential Information of the other party from unauthorized use, disclosure, copying or publication; (ii) not to use the Confidential Information of the other party other, than in the course of exercising its rights or performing its obligations under this Agreement; (iii) not to disclose or release such Confidential Information except to the extent required by application law or during the courses of or in connection with any litigation, arbitration or other proceeding based upon or in connection with the subject matter of this Agreement, provided that the receiving party shall first give reasonable notice to the disclosing party prior to such disclosure so that the disclosing party may obtain a protective order or equivalent and provided that the receiving party shall comply with any such protective order or equivalent; (iv) not to disclose or release the Confidential Information to any third person without the prior written consent of the disclosing party, except for authorized employees or agents of the receiving party who have a need to know such information for the purpose of performance under this Agreement and exercising its rights under this Agreement, and who are bound by confidentiality obligations at least as protective of the disclosing party's Confidential Information as this Agreement; and (v) to take all appropriate action, whether by instruction, agreement or otherwise, to ensure that employees: and third persons under the direction or control or in any contractual privity with the receiving party, who have access to Confidential Information do not disclose or use, directly or indirectly, the Confidential Information for any purpose other than for performing obligations or exercising rights of the receiving party under this Agreement, without first obtaining the written consent of the disclosing party. 6.3 Cancellation and Termination (a) Cancellation of any on -site Services by Organization is allowed for any reason if done ",in writing more than fourteen (14) days in advance of such Services. Organization will be billed for any non -recoverable direct costs incurred by Harris that result from a cancellation by Organization with fourteen (14) days or :less of scheduled on -site Services. Additionally, Organization hereby acknowledges that cancellation of on -site Services means that such on -site Services will be rescheduled as Harris's then cut -rent schedule permits. Harris is X not responsible for any delay in Organization's project resulting from Organization's cancellation of Services. If upon Harris arrival, the Organization r' is not adequately prepared or has not completed the assigned tasks for such visit by Harris, then the Organization will be billed 100% of the on -site fee and scheduled on -site Services can be cancelled by Harris. If additional Services are required because the Organization was not adequately prepared, Harris will provide a Change Order to the Organization for the additional Services. -12- (b) This Agreement shall commence on the Effective Date and shall expire upon the Completion of Services. The parties may at any time revive this Agreement upon mutual written agreement so that it may be used in relation to a new Statement of Work. (c) If Harris should neglect to perform the Services properly or otherwise fail to comply with the requirements of this Agreement, the Organization must notify Harris in writing of such default (a "Default Notice"). Upon receipt of a Default Notice, Harris must either correct the default at no ,additional cost to the Organization, or issue a written notice of its own disputing the alleged default, in either case within thirty (30) days immediately following receipt of a Default Notice. If Harris fails to (i) issue a notice disputing the alleged default within such thirty (30) day period; or (ii) correct the default within ninety (90) days following receipt of the Default Notice, effective upon written notice to Harris the Organization may terminate the whole of this Agreement or the applicable Statement of Work and in such case the Organization will be responsible for payment to Harris of only that part of the fee earned by Harris for those Services perfomed up to the time of communication of such notice of termination to Hands. (d) If the Organization should fail to comply with its obligations under this Agreement, Harris must. notify the Organization in writing of such default (a "Default Notice"). Upon receipt of a Default Notice, the Organization must correct the default at no additional cost to Harris, or issue a written notice of its own disputing the alleged default, in either case within thirty (30) days immediately following receipt of a Default Notice. If the Organization fails to (i) issue a notice disputing the alleged default within such thirty (30) day period; or (ii) correct:tlie default within ninety (90) days following receipt of the Default Notice, Harris may terminate the whole of this Agreement effective upon written notice, to Organization and in such case the Organization will be responsible for payment to Hands of only that part of the fee earned by Harris for that part of the Services performed in accordance with this Agreement up to the time of communication of such notice of termination to the Organization. (e) If Organization has failed to pay the fees or other amounts due in accordance with Article 4.2 then Harris shall have the right to terminate this Agreement effective immediately upon written notice to Organization to that effect. (f) Notwithstanding any other provision of this Agreement, if the Organization breaches (i) any intellectual property right of Harris; or (ii) its confidentiality obligations under Section 6.2, then Harris shall have the right to terminate this Agreement effective immediately upon written notice to Organization to that effect and the license rights granted herein shall immediately terminate. (g) Either party may terminate this Agreement effective immediately upon written notice to the other party if the other party: (i) becomes insolvent; (ii) becomes the subject of any proceeding under any bankruptcy, insolvency or liquidation law, -13- whether domestic or foreign, and whether voluntary or involuntary, which is not resolved favourably to the subject party within ninety (90) days of` commencement thereof; or (iii) becomes subject to property seizure under court order, court injunction or other court order which has a material adverse effect on its ability to perform hereunder. (h) The termination of this Agreement prior to the Completion of Services shall result in the concurrent termination of the Support and Maintenance Agreement and of the Software License Agreement. The termination or expiration of this Agreement following the Completion of Services shall not affect the rights of either party in either the Support and Maintenance Agreement or,.,` the Software License Agreement. This Agreement shall automatically terminate in the event that the Software License Agreement or the Support and,Waintenance Agreement is terminated or expires. 6.4 Mediation The parties agree to submit any claim, controversy or dispute arising out of or relating to this Agreement or the relationship created by this Agreement to non -binding mediation before bringing a claim, controversy or dispute in a court or before any other tribunal. The mediation is to be conducted by either an individual mediator or a mediator appointed by mediation services mutually agreeable to the parties. Such mediator shall be knowledgeable in software system agreements. The mediation, s`halI take place at a time and location which is also mutually agreeable; provided; however, in no event shall the mediation occur later than ninety (90) days after either party notifies the,other of its desire to have a dispute be placed before a mediator. The costs and expenses of%inediation, including compensation and expenses of the mediator (and except for the attorneys' fees incurred by either party), is to be shared by the parties equally. If the parties are unable to resolve the claim, controversy or dispute within ninety (90) days after the date,either party provides the other notice of mediation, then either party may bring and initiate a legal proceeding to resolve the claim, controversy or dispute unless the time period is extended, by a written agreement of the parties. Nothing in this Section shall inhibit a party's right to seek injunctive relief at any time. 6.5 Addresses for Any'notice required or permitted to be given to any party to this Agreement shall be given in writing and shall be delivered personally, mailed by prepaid registered post or sent by facsimile torthe appropriate address or facsimile number set out below. Any such notice shall be conclusively deemed to have been given and received on the day on which it is delivered or transmitted' (or on the next succeeding business day if delivered or received by facsimile after 5:00 pp' `local time on the date of delivery or receipt, or if delivered or received by facsimile on a day other than a business day), if personally delivered or sent by facsimile or, if mailed, on the third.business day following the date of mailing, and addressed, in the case of Harris, to: N. HARRIS COMPUTER CORPORATION 1 Antares Drive, Suite 400 r Ottawa, Ontario K2E 8C4 PA -14- �dr` r� 'l I Attention: CEO Telephone: 613-226-5511, extension 2149 and in the case of the Organization, to: City of Huntington Beach 2000 Main Street Huntington Beach, CA 92648 Attention: Jun Slobojan, Fiscal Services Manager Telephone: 714-960-8820 With a copy to: izacks a surfcity-hb.or f� Each party may change its particulars respecting notice, by issuing notice to the other party in the manner described in this Section 6.5.,.'` 6.6 Assignment Neither party may assign any of its rights or duties under this Agreement without the prior written consent of the other party,,such consent not to be unreasonably withheld, except that either party may assign to a successor entity in the event of its dissolution, acquisition, sale of substantially all of its assets, merger,or other change in legal status. The Agreement shall inure to the benefit of and be binding upon the parties to this Agreement and their respective successors and permitted assigns. <°L f 6.7 Reorganizations' The Organization acknowledges that where a "Reorganization" occurs as that term is defined in the Software License Agreement, the same provisions related thereto shall apply to this Agreement: The application of a Reorganization may result in a change in the fees provided for in these provisions. 6.8 Entire Af!rcemcnt This Agreement shall constitute the entire agreement between the parties hereto with respect to the( matters covered herein. No other understandings, agreements, representations, warranties 0r other matters, oral or written, purportedly agreed to or represented by or on behalf of Harris',6y any of its employees or agents, or contained in any sales materials or brochures, shall be deemed to bind the parties hereto with respect to the subject matter hereof. Organization acknowledges that it is entering into this Agreement solely on the basis of the representations contained herein. However, the parties agree that two other agreements are being entered into concurrently with this Agreement which are in addition to any of the third party agreements detailed herein. These two other agreements are the Support and Maintenance Agreement and the Software License Agreement, each of which are separate agreements and are binding in their own right and upon their own terms. The ternls of this Agreement may not be changed except by -15- rFA~ an amendment signed by an authorized representative of each party. No provisions``in any Al purchase orders, or in any other documentation employed by or on behalf of the Organization in connection with this Agreement, regardless of the date of such documentation, will affect the terms of this Agreement, even if such documents is accepted by Harris, with uch provisions being deemed deleted. 6.9 Section Headings Section and other headings in this Agreement are for reference purposes only, and are in no way intended to describe, interpret, define or limit the scope or extent of any provision hereof. 6.10 Governing Law This Agreement shall be governed by the laws of4he Province of Ontario and the federal laws of Canada applicable therein. This Agreement excludes the Uniform Commercial Code and the United Nations Convention on Contracts for the,fiiternational Sale of Goods (UNCCISG and any legislation implementing such Convention), if`otherwise applicable. P f 6.11 Trial by Jury Organization and Harris hereby waive, to the fullest extent permitted by applicable law, the right to trial by jury,in any action, proceeding or counterclaim filed by any party, whether in contract, tort or otherwise, relating directly or indirectly to this Agreement or any acts or omissions of Harris in connection therewith or contemplated thereby. 6.12 Invalidi The invalidity'or unenforceability of any provision or covenant contained in this Agreement shall not affect the validity or enforceability of any other provision or covenant herein contained and any such invalid provision or covenant shall be deemed modified to the extent necessary in order to render such provision valid and enforceable; if such provision may not be so saved, it shall be severed and the remainder of this Agreement shall remain in full force and effect. 6.13 Waiver f No waiver of any breach of any provision of this Agreement shall constitute a waiver of any prior, concurrent, or subsequent breach of the same or any other provisions hereof, and no waiver shall be effective unless made in writing and signed by an authorized representative of the waiving party. 6.1V Counterparts This Agreement may be executed in counterparts (whether by facsimile or PDF 'signature or otherwise), each of which when so executed shall constitute an original and all of which together shall constitute one and the same instrument. -16- 6.15 Survival Article 1, Section 3.2, Section 4.1 and Articles V and VI and any other provisions which are required to ensure that the parties fully exercise their rights and obligations,hercunder shall survive the termination and/or expiration of this Agreement. 6.16 Competitive Bid Organization has conducted a competitive evaluation and has"concluded such efforts with this negotiated Agreement (including any addenda hereto); therefore, this Agreement may serve as the basis for similar agreements whereby other entities may contract separately with Harris. Organization agrees that Harris may disclose all or any,portion of this Agreement to any of its current or prospective customers. 6.17 Further Assurances The parties shall do all such things and provide all such reasonable assurances as may be required to consummate the transactions contemplated hereby, and each party shall provide such further documents or instruments required by any other party as may be reasonably necessary or desirable to effect the purposes of this;Agreement and carry out its provisions. d., r` 6.18 Currency All amounts specified in 6.19 Relationship Agreement shall be in United States currency. The parties are andshall at all times remain, independent contractors in the performance of this Agrecment,and nothing herein shall be deemed to create a joint venture, partnership or agency relatiotr'ship between the parties. Neither party will have the power to bind the other party or to contract`in the name of or create any liability against the other party in any way for any purpose. Neither party will be responsible for the acts or defaults of the other party or of those for whom the other party is in law responsible. I 6.20 Equitable Re ief Organization acknowledges and agrees that it would be difficult to compute the monetary loss to Harris arising from a breach or threatened breach of this Agreement and that, accordingly ,"Harris will be entitled to specific performance, injunctive or other equitable relief in addition to;'or instead of monetary damages in the event of a breach or threatened breach of this Agreement by Organization. 6.21 Language The parties confirm that it is their wish that this Agreement as well as all other relating to this Agreement, including notices, be drawn up in English only. Les -17- panties aux pres6ntes conferment que c'est leur volont:6 que la pr6sente convention de nidnic que tous les documents, y cornpris les avis, s'y rattachant, soient r6dig6s en Anglais sculement. -18- IN WITNESS WHEREOF, the parties have caused the Agreement to be executed by and through their authorized officers. CONSULTANT, N. I-IARRIS COMPUTER CORPORATION (HARRIS) <:::-, j By: print name ITS: (circle one) Chainnan/PresidentNice President AND CITY OF HUNTINGTON BEACH, a municipal corporation of the State of California f' Mayor City Clerk By: print name INITIATED`AND APPROVED: ITS: (circle one) Secretary/Chief Financial Officer/Asst. Secretary - Treasurer Chief Financial Officer REVIEWED AND APPROVED: City Manager APPROVED AS iORM: rrty orney Oka a(-ttl\1 -19- Schedule "A" Statement of Woi•k This Statement of Work ("SOW") is subject to all terms and conditions of the "SOFTWARE IMPLEMENTATION SERVICES AGREEMENT" (the "Agreement") between Organization ("Customer"), and Harris, with an Effective Date of 09/19/2017. The parties have entered into the Agreement for the provision of certain services and deliverables to Customer. All terns of the Agreement are incorporated herein by this reference. In the event of a conflict, the terms of the Agreement control over the terms of this SOW. The Customer has requested the following professional services to implement iNovah. Hands will use its extensive cashiering experience, Customer knowledge and/industry expertise to facilitate the implementation and delivery of software and services for the Customer as defined within this SOW. System Innovators will work closely with the Customer to manage the SOW and ensure success of the overall project. / The Services described in this SOW are based on a list of documented assumptions which have a direct correlation to project scope and duration. Changes to project scope and/or duration effectively alter this SOW and will be processed in accordance with the Project Change Control ("PCR") procedure as described herein. / Project Scope The following table represents a summary of the Software and Services "(Project Scol delivered by System Innovators as pant of this SOW. The City will select which of the modules to implement during the planning stage. Softivare Module Description Assumption iNovali Software Modules Base Software Version up to 750,000 iNovali Application — latest version without modifications r receipts. Per r ,r iNovali Integrations InWfuce Modules) 1 JDE GL Export % Batch Export 1 RPS Payment Import - r Batch Import I Union Bank Import Batch Import Official Payments Import Batch Import 1 Cummins Cash Manager Import Batch Import 1 CIS Infinity Interface Real Time Real Time for manual GL strings I JDE GL & Activity Validation entered into iNovah 1 JDE Billing Interface Real -Tune 1 r l Accela Interface Real -Time ,r 1 RecTrack'Interface Real -Time 1 r l Invoice Cloud Integration (Credit Card) Real -Time Union Bank Image Cash Letter Batch ICL 1 Professional Services I In Scope Consulting, Development, and Training Deliveiy.Approach Select one: :f Business Process & Technical ® Yes ❑ Onsite Support A' Assessment ❑ No ❑ Delivered Remotely` ® Combination of'Onsite and Remote ® Yes Y", Base iNovah Software Installation Always Delivered Remotely and Database Configuration ❑ No iNovah System Administration ® Yes Training and Configuration Always Delivered at the Customer's Site Workshop ❑ No ® Yes Development of iNovah Integrations Always Delivered Remotely ❑ No+l Select one: ® Yes ❑ Onsite Support Unit and System Testing ❑ No ❑ Delivered Remotely r ® Combination of Onsite and Remote ©Yes Always Delivered at Customer's Site as either End User Trailu(select one) ng '' (Cashier/Supervisor) �.' ❑ No ❑ System Innovators Lead Training ® Customer Lead Training (i.e. Train -the -trainer) ® Yes Select one: Onsite Production'Turnover/Go-Live Support / ❑ No ® Onsite Support ❑ Delivered Remotely rofessional Services. (I) Proiect Deliverables and Activities are only applicable for "In Scope — Yes" P Project Overview System Innovators will provide cashiering software ("iNovah") to the Customer for the collection of payments. System Innovators will also provide project management, consulting, configuration, development, software installation, training, and go -live support services as defined in SOW. f" Timeline r; System Innovators will work closely with the Customer to manage the SOW and ensure success of the overall project. System Inmovators expects the planning, design, dev,,elopment, testing, training, and go -live phases to take approximately 180 days based on the,­klowing assumptions and the use of best practices established through similar implementations. .. _ a D � .... te, - '.•1 ,.. �. ��. ^1• ..'V� �• ,�1 1Y pS. �1 . :., .., „� .,�. 1Y �� M1. 1''' .-. - .. ....r`�=?M9;%A'tti"vi 'r``.•z•:r.<._. ' ��...zk. 're �a.,sr. r,rr� , i fa t ,"'• ' '-1+.; r"P.ioJect PFio`se 'Inftlate.. ... Planning Y� 14 nA,. yY �1: �9:; l/i �_„ K , - •a "i=:u�=-.ram', i'r.. ,i` ' .4;`�r``y:.a..�;:, 1p :.�.,„F�"'>±i__ - ':tii5_`'t?,.. _ � - - - - - ..-.,... .' Kkk-olf and Technical Specification Creation ---Y Analyze Functional and Assessment Workshop —i ®--, ( —� �— �/� __ — ._ I _.i _L_---�— i & Design System Configuration and Admin Tralnin , I i ---�—j— Test T INmrah User Acceptance Testing {IT -I _I _.- __ _ _ _. L_ ® I----i---�-' - ---1 i — �- u�. m Inelrates onate wmfv ,,vy me for morel aynem i..Man nawr...:. Sample iNovah Project Timeline ;'Assumptions The following assumptions have been`made for this project: 1. The following Customer resources will be available to work on this project: ® Executive sponsor ® Project Manager — minimum of 50% of time allocated to iNovah project m Payment processing subject matter expert o Host system subject matter expert o iNovah administrator ® Network administrator 2. A high-speed remote VPN connection to iNovah is available for testing and production support. 3. The Customer -is responsible for providing servers, workstations and third party oftware that meet the system requirements per Schedule "A" of the Software License Agreement. 4. e configuration of servers, workstations, The Customer is responsible for th networks and third party software. 5. System Innovators staff will be provided with workspace for up to two people when performing onsite services. The workspace will be equipped with a connection and access rights to the Customer's network. / 6. System innovators staff will have console access to iNovah servers when performing services onsite. / 7. The Customer will provide the services described in this SOW in a, timely fashion to allow System Innovators to meet agreed upon schedules. 8. To enable an interface to iNovah, the Customer or Customer's' vendor will provide an application programming interface (API) to all applications to be interfaced. 9. The Customer is responsible for working with the Customer's Staff and/or the Customer's Vendor to provide System innovators the latest versions of technical documentation / specifications, testing material, and resources. 10. The Customer will provide a test and production environment for iNovah. Note: An additional QA/training environment is recommended for larger projects. i i System Innovators Deliverables Based on Project Scope, System Innovators will provide the following standard services: Phase Initiate Analyze and Design Develop Deploy Deliverable Description Project Kick -Off Initial meeting to introduce"project team members, objectives, and next steps iNovah Project Plan Final iNovah Project Implementation plan Assessment Workshop Meeting at Customer facilities to identify business requirements Functional and Integration Documented requirements for iNovah Specifications configuration and integration development iNovah Installation in Test Latest iNovah software version, without Environment modifications, in a test environment at Customer facilities P dP Configuration Workshop, r System Innovators lead Configuration Workshop for up to (8) Customer r" representatives (subject matter experts and flr' iNovah administrators.) r System Administration Training System Innovators lead System Administration class for up to eight (8) Customer representatives (iNovah administrators.). r iNovah Integrations Delivery of in scope iNovah Integrations / per specifications 'iNovah End -User Training End -user training for iNovah users per Project Scope section of this SOW Production Support Production support at iNovah production go -live Project Phase Activities Based on Project Scope, System Innovators' and the Customer will responsible for the following activities. Service pleting Activity FSystem7"'I Shared hmovators ` Customer Overall Project Management r' Overall Change Management Managing all System Innovators personnel assigned to the project Managing all Customer's personnel assigned to the project x Managing Customer's Vendor resources; including escalation Coordinating schedule changes with the System' IInnovators Project Manager Managing the project schedule and reporting variances f r Managing the activities assigned to Customer in this SOW Coordinating and participating in`project related calls and meetings Providing weekly progress4eports to the Customer Project Manager a Reviewing and providing feedback on weekly progress reports i Coordinating delivery of all Hardware and Software X X X X X X X X X X X X X Finalize System Innovators resource plan and delivery resources X .F Finalize the Customer's resource plan and delivery resources X Coordinate the project kick-off meeting X Define project governance structure and align implementation X methodology Share Customer's Project Plan, if applicable. (i.e. iNovah rollout in X conjunction with EPR deployment) Fs Create the iNovah Project Plan X,f' r' Develop and Publish Assessment Agenda fj/ X Conduct Kick-off Meeting r Schedule resources and manage logistics for Assessment Workshop"" er X agreed upon schedule f` Peripheral hardware, identified in the Agreement, delivered to X Customer's facilities r` Provision VPN access to Test Environments ,•' X Lead workshops to gather design decisions X Attend workshops with appropriate resources with authority to make X design decisions Ensure appropriate Customer representation in workshops X Make key design decision' decisions around process and configuration X Documenting configuration requirements in functional specifications X r` Documenting recommendations for site preparation and infrastructure X changes `t delivery of all hardware and software with the Customer I X Verifying acceptance of all delivered products and services X / Coordinating the delivery of all Software warranty services and X Hardware Support Services t Provide VPN access to the production system for access by System X Innovators (if allowed) Coordinating the collection of information for tailoring, customization X and configuration requirements Provide documented Acceptance Test Plan X Reviewing an Acceptance Test Plan provided by the Customer X Provide the business process and technical requirements for iNovah , X solution =� E,. F Conduct System Administration class at the Customer's facility X Attendance of Customer's representatives to the System Training class X r Conduct System Configuration Workshop class at the Customer's X facility // Attendance of Customer's representatives to the System Configuration X Workshop class Provide printed copies of reference for training materials X r Modify software routines withinsiNovah to handle input devices X included in the functional specifications Modify software routines within iNovah to call interface routines X included in the technical/specifications Input all parameters in iNovali maintenance tables and configuration X files required to create the configuration included in the Functional Specification r Provide technical specifications for each type of callable XML based X Web Services 11 nyr Aid in design of callable Web Service(s) to retrieve and post the Customer's account information from XML based documents supplied X by the`Customer to support two-way interfaces Design and code other custom features for iNovah as defined in the X functional and technical specifications Design and code callable interface API to retrieve the Customer's X account information from existing applications Design and code callable interface to support post payment information r,"�X to the Customer's accounts for batch interfaces Install all Customer provided hardware and software for testing and yr X verify that the environment is working properly' Work with the Customer to install iNovali at the Customer's facility for X acceptance testing Verify that all Hardware and Software is properly installed at theF X Customer's facility and ready for acceptance testing f� Unit test each modification to iNovah �`' X Perform system tests on the delivered version of iNovah to'"ensure that the system performs standard functions as expected andArneets all X requirements included in the functional and technical specifications Coordinate testing activities with the Customer's,personnel and third X party contractors/vendors fa, Perform all tests documented in the Acceptance Test Plan X Assist the Customer in performing the./Acceptance Test Plan X Document and manage any deficiencies found during the acceptance X tests Maintain issues list for all iNovah defects reported during the testing X phase Review the results of acceptance testing and correct documented � X deficiencies Retest corrected,defects X Acceptance/of delivery of iNovah X I/ Coordinating training activities with the Customer's personnel, third X party contractors Conduct End User Training as defined in Project Scope section of this X SOW Provide All training materials and documentation on electronic media X Provide a training room (appropriate for number of installed and X networked personal computers) with access to test or training servers Provide a computer projector and screen for training classes X Any required iNovah peripheral hardware for training classes ,.'" X ,r Providing desktop training for all cashiers and other users that do not f` . have experience with the recommended Windows operating system or X Internet Explorer computer applications prior to System Innovators ar arrival Ensure attendance of cashiers and supervisors during the end user X training class Ensure end users participation in practice the exercises X Provide printed copies of reference or training materials X r Update the functional and technical specifications (if required) to reflect all modifications to requirements, configuration, and schedule as agreed X via the PCR Process;f. Finalize the production roll out sched4e X Install all required network cabling", hardware and software X Define remote support process for System Innovators Client Services X Team. Verify that VPN access to the production system works properly (if X provided) Ensure that all site preparations are completed X Install all c'Omputer hardware and software for the production X Verify/fhat all hardware, software and networks are working properly X / Assist the Customer in troubleshooting installation problems related to X installing iNovah in production environment Establish production user names and password on iNovah X' Ensure that all staff members are appropriately trained X Verify acceptance of first production use of iNovah X Provide deployment support as defined in Project Scope section of this X,'', SOW Assist the Customer in monitoring the performance of iNovah and X identifying any deficiencies E` Provide trained supervisors to assist new users with iNovah f X r Transition the Customer's project to System Linovators ClientFServices X Team Document any problems that occur and provide information on any X deficiencies in iNovah to System Innovators Client Services Request acceptance of `Live' status of iNovah once the System has been I X in production at any location for 30 days Provide acceptance of the `Live' status of iNovah once the System has ( I X been in production at any location for 30 days Provide recommendations for server hardware, personal computers, and X network settings to the Customer` Deliver peripheral hardware ,}identified in the Agreement, to the X Customer's facilities Coordinate installation,§ervices with the Customer's personnel, third X party contractors ! Provide assistance with installation of provided peripheral hardware on X personal computers in testing environment at the Customer's Facilities At least two'"(2) servers (virtual or physical) per environment, meeting X the hardyvare prerequisites provided by System Innovators Personal computers, for all cashiering and supervisory workstations, Xf`l meeting the hardware prerequisites provided by System Innovators. Computer network connectivity between all personal computers, servers X and other computers where interfaced applications reside Backup plan for all System Innovators products and databases X Universal Power Supply (UPS) equipment for the computer servers X Installation and maintenance of all the Customer's provided hardware / X iNovah delivered to the Customer's facilities X Installation of iNovah on servers and iNovali Client on one (1) X workstation in the Customer's Test Environment histallation of third party Software, provided by System Innovators, on servers and/or personal computers in the test environmcnt,at the X Customer's facilities Microsoft operating system software for all servers and personal X computers per recommendations. �A Microsoft SQL Server software per recommendations for the database r X server r Computer network software supporting ff'communications between all Personal computers, servers and other computers where interfaced X applications reside Backup software for the computerpservers X rf Virus protection software for all computer servers and personal X computers f Installation and maintenance of all the Customer's provided software X F�. Production environment software installation X r Project Governance Project Management Structure f Adhering to a formal project management structure is an essential component,,of a successful implementation, with reciprocal communication being the most fundamental" element of the governance process. System Innovators recommends a Project Structure that empowers the"Core Project Team with the responsibility of conducting daily project operations, allows Executive Sponsors the ability to monitor overall project progress through scheduled reviews, as well, as providing a resolution path for impasses or decisions that have the potential to affect the implementation timeline and/or scope. r •r,i �,.; 'z __ o�^:-7 is �.s i .n n•r-ai7."'.�. Steering Committee ? Executive Sponsors? -— — �. r - Customer Delegate Contract Level 7�rr- _�•.-�'-at;',�'r. :r �-".s �:-�_:._Z = `'s._ :.l - c�l�.i:+T �:'a'�sl".'"r �• ?s„i'."` — ti��—"v.;F�. i,�.'. i U Project Manager � fil. - :.� _- - - -r.t%i `,?_�1:-.'s ���F.'I � tip. .h}4•��du',x+�:- "y�F .i Fr* - Business Process ^ z-a;..alli� if' Experts p � Sh.Yz+iz �.���ii: .• c_�"€;=�'" ..�n•-�is' ��••I�-----�-- - = ..__._ ��.^CYj�3 Core Project Team f ,-r,:a •� . .�d; IT Resources �✓ I✓ ''`''it^{ t i Technical Teams ' Customer Vendor Teams.. 4 Recommended Project Management Structure Steering Committee The Steering Committee is the top escalation point for the project and performs functions: ® Provides a controlling mechanism for overall project progress and Change Orders o Meets during project kick-off and at defined intervals during Implementation J ,f Members include:-' • The Customer's Executive Sponsors • Executive Sponsors at System Innovators r • Project Managers (as needed) r` (i) Contract Level The person or persons responsible for the contract sick on the Customer side performs the following functions: d' e' ® Owns the project Change Order process ® Manages any contract aspect of the project 11 1 Members include: System Innovators Vice President of Professional Services or Vice President of Sales Responsible Commercial/Relationship owner at the Customer (ii) Core Project Team System Innovators and Customer Core Project Teams are responsible for successfully delivering the project per the SOW{and perform the following functions: Participates inrall project phases Ensures that4he delivered solution meets internal stakeholder expectations Responsible for communication and expectation management with project stakeholders Members include: 1 program and delivery teams Customer's Project Manager will review the progress reports created by the System iators Project Manager and provide feedback to resolve issues and changes. rF 'f. r r Project Change Control A defined process for controlling scope issues and change requests must be in,"place and followed to help ensure that proper visibility is given to change requests and any associated approvals required. Items that modify the scope of work will be reviewed by the System Innovator`s Project Manager to determine if there is an impact to the cost or timelines for this project. Put of scope services will be charged as outlined in Rate Card listed within the "Agreemcnt''f Any change must be documented in a mutually executed Project Change Request (PCR) Work Order. The following change control procedure shall apply to this SOW: 1. Project Resource(s) identify new or change in requirements and escalate to the respective Project Manager. /. 2. Systcm Innovators and Customer's Project Managers work together to gather required m inforation to determine if a Change Order is required. 3. Project Managers determine if a Change Orderrs valid a. If no, Projcct Resources will be informed and the change management process ends. b. If yes, System Innovators Project Manager will facilitate the creation of the Change Order and promptly,Orovide it to the Customer's Project Manager. 4. Customer Project Manager will review the proposed Change Order, with appropriate Customer resources, for conten(and completeness, and accuracy. 5. If proposed Change Order requires changes, Customer's Project Manager and System Innovators Project Manager will collaborate to consider necessary modifications. 6. Change Orders must be reviewed and approved by the Contract Level of the Project Steering Team. 7. If approved by Project Steering Team, the appropriate authorized Customer signatory may sign the Change Order; provided that notwithstanding anything to the contrary in this SOW, noFChange Order shall bind Customer unless approved expressly and in writing by the authorized Customer signatory or his/her designee. 8. The Customer Project Manager will inform the System Innovators Project Manager and process -required paperwork for any executed Change Order. 9. ThesCustomer Project Manager and System Innovators Project Manager will perform administrative project tasks associated to the project and inform the Project Resources ..accordingly. J Schedule "B" Fee Structure and Payment Schedule The total fees payable under this Software Implementation Services Agreement are $5 , 25,895.00 which amount is not inclusive of those elements which are specifically excluded a.s'described in the Software Implementation Services Agreement. The fees shall be paid in /fo the llowing manner as delineated below: Professional Services Fees S es,, -a" Project Manager $220.00 Developer 1 $220.00 Business Analyst $180.00 Trainer $180.00 DBA Systern Engineer $180.00 Additional Interface Rate Card :Iiterface:Typer£ r' , I:�cense Cost ' Interface Maintenance Services t Batch Interface $15,000 $3,750 $17,600 Low Complexity Interface $20,000 $5,000 $32,600 Real -Time' Medium Complexity Interface $30,000 $7,500 $55,200 Redl-Til-ne High CO'mplexity Interface $40,000 $10,000 $82,800 Real -Time Payment Schedule . to , Milestone Payment Amount' Final Contract Executed - 50% of License Fees $87,300.00 50% of Project Initiation Phase Due Upon Start f $2,859.84 50% of Project Initiation Phase Due Upon Complete ,' $2,859.84 50% of Analyze and Design Pliase Initiation Due Upon Start f"' $28,297.39 Installation of Base iNovah in Test Envirorunent - 50% of License Fees ` /`r $87,300.00 50% of Analyze and Design Phase Initiation Due Upon Complete % $28,297.39 50% of Develop Phase Initiation Due Upon Start / $65,264.60 50% of Develop Phase Initiation Due Upon Complete % $65,264.60 50% of Test Phase Initiation Due Upon Start $12,492.98 50% of Test Phase Initiation Due Upon Complete $12,492.98 50% of Deploy Phase Initiation Due Upon Start f� $5,810.00 50% of De 1oy Phase Initiation Due Upon Complete $5,810.00 50% of Transition Phase Initiation Due Upon Start $9,934.19 50% of Transition Phase Initiation Due Upon Complete $9,934.19 Travel as incurred $18,000.00 10% Holdback to be paid upon final acceptance or 30 days after production implementation, whichever comes first. $49,102.00 Total $491,020.00 / Hardware Fees .:,,Milestone_Descla tlon :,, __ ....: =.: _.;..:.:.-:..s Value.: TY`:.:_-__x :: ':= = _:T9taL_::.: _ ...... . zb- .. Cognitive/TPG A776 USB/Serial Receipt/Slip/ Printer $560.00 25 $14,000.00 Black no MICR / Canon CR-120 Imager with OCR and Barcode $895.00 25 $22,375.00 APG Cash Drawer with till and locking cover $235.00 25 $5,875.00 Total Hardware 42,250.00 Schedule "C" Sample Form Change Order Change Order Client Client e _r4 Chargeable Hours Rate Amount 000 000 Non -Chargeable Hours,. `' Total Hours Client Signature ,<" Date Your signature`serves as an acceptance of the "Amount" listed above as it relates to the description of work contained in this Change Order. Your signature also indicates you have reviewed and agree to the scope of work as detailed in any accompanying enclosures or attachments. This signed document indicates that you have provided all of the accurate information necessary to produce the work as stated in the above Change Order. Application Originated by 11111' 11 ATTACHMENT #2 SUPPORT AND MAINTENANCE AGREEMENT THIS SUPPORT AND MAINTENANCE AGREEMENT (the "Agreement") made as of the day of (the "Effective Date"). BETWEEN: SYSTEM INNOVATORS, A DIVISION OF N. COMPUTER CORPORATION ("Harris") -and- THE CITY OF HUNTINGTON ("Organization") RECITALS Harris has licensed Software to Organizatiop/ pursuant to a software license agreement entered into between the parties on the sazric date as the Effective Date (the "Software License Agreement") and shall proy�ide related services pursuant to a software implementation services agreement dated the same date as the Effective Date (the "Software Implementation Services Agreement"); 2, The Organization wishes to receive support and maintenance services related to the Software; and / Harris has agreed to prove the support and maintenance services related to the Software on the terms and conditions set out in this Agreement; NOW THERE FO}ZE, in consideration of the mutual covenants set out in this Agreement and for other good and valuable consideration (the receipt and sufficiency of which is hereby acknowledged),//the parties agree as follows: l . Definitions/Throughout this Agreement, the following words and expressions shall have the following meanings. All defined terms not otherwise defined herein shall have the meaning ascribed to them in the Software License Agreement. (a) "Update" means a minor release of the Software which includes minor published modifications or enhancements to the Software related to a bug fix, minor additional functionality or legislative changes. An Update is designated by a change in the right -most digit in the version number (for example, a change from X.1 to X.2). -1- (b) "Upgrade" means a major release of the Software which is a complete�"`new published version of the Software that [significantly] modifies, revises "oi alters the Software and adds features, functionality or enhancement to such/,Software. An Upgrade is designated by a change in the number to the left of-.Fthe decimal point in the version number (for example, a change from LX to 2.X�). (c) "Release" means Updates and Upgrades. All Releases are,; provided in object code. F° 2. Entire Agreement. This Agreement (including the Change Oi•der document referred to herein and the schedules and exhibits hereto) supercedes all prior representations, arrangements, negotiations, understandings and agreements between the parties, both written and oral, including without limitation, the Software License Agreement, relating to the subject matter hereof and sets forth the entire and exclusive agreement and understanding between Harris and Organization relaiing to the subject matter hereof. The terms of this Agreement may not be clianged/except by an amendment signed by the authorized representative of each party. No provisions in any purchase orders, or in any other documentation employed by Organization in connection with this Agreement, regardless of the date of such documentation, will affect the terms of this Agreement, even if such document is accepted by Harris, with such provisions being deemed deleted. 3. Support Services. Harris shall provide support services in accordance with the Standard Support and Maintenance Services — Harris Standard Guidelines, as may be modified or supplemented from time to time by Harris in its sole discretion, a current copy of which as of the Effective Date is attached to this Agreement as Exhibit 2 (the "Support and Maintenance Services")./Support and Maintenance Services shall be provided primarily via telephone and electronic mail, and Harris will provide site visits at Customer's request subject to additional fees or when deemed necessary by Harris, in its sole discretion, to resolve' an issue. The Support Services will be provided only during the hours of operation/as described in Exhibit 2 hereto and which are in effect as of the Start Date (as defined below). To enable Harris to provide effective Support and Maintenance Services, the Organization will establish auto remote access procedures compatible with Harris's then/current practices which may be revised over time. 4. Support land Maintenance Fee. In consideration for the Support and Maintenance Services; Organization shall pay the "Support and Maintenance Fee" as detailed in Exhibit 1 below. The Support and Maintenance Fee will be billed annually in advance. Theyfirst billing date shall be the pro rata amount for the period begimring on the date the Software is installed (the "Start Date") to the "Renewal Date", which is defined as being either January 1 or July 1 as chosen by the Organization in the applicable order form. Thereafter, the Support and Maintenance Fee shall be paid for the period beginning on each subsequent Renewal Date and ending at 23:59 eastern time, the day preceding the Renewal Date. Harris may change the Support and Maintenance Fee from time to time in relation to each renewal terra but Organization shall only be billed once per year. The Support and Maintenance Fees shall increase where a reorganization occurs or due to any additional Licenses or other growth of Organization during the term based upon Harris's then current billing practices. ri 5. Billable Fees. In addition to the Support and Maintenance Fee, Organization shall reimburse Harris for fees related to support and maintenance services for Third Ba •ty Software and for Harris's direct expenses in providing support services pursuant to this Agreement for services that are not included in this Agreement ("Billable Feeg"). The Billable Fees will cover expenses related to the installation/implement tion of an Upgrade, any necessary services provided at Organization's premises, and/at any other time when the parties may agree that additional services are required. 'l'he Billable Fees include as of the Start Date: (a) courier services, photocopying, faxing, long distance phone/calls and reproduction services, (b) all direct travel expenses including, but not limited/to hotel, airfare, car rental, tolls, parking and airline and travel agent fees;,'/each individual's travel time billing rate of $75.00/hour; a per diem rate of $7,0.00 for week days and a $125.00 for weekends and statutory holidays that includes all meal, food and telecommunications expenses (no receipts will be provided); and a mileage charge consistent with the Internal Revenue Service recommended rate per mile, (c) and all other reasonable expenses ineurred in the performance of Harris's duties hereunder. !� Third Party Software will be separately billed on each invoice. Harris may update its reimbursement policies from time.to time, in which case such updated policies shall apply for purposes of this Agreement. The Billable Fees and Third Party Maintenance Fees shall automatically increase for each renewal period based on Iarris's then current rates. 6. Upgrades. Conditional r pon Organization paying the Support and Maintenance Fee, the Billable Fees, and any other additional amounts applicable to such Upgrades, Harris shall supply Upgrades to/Organization. Upgrades may require additional services to be performed by Harris outside of the scope of the Support and Maintenance Services including additional training not covered by the Software Implementation Services Agreement an, services for the installation and implementation of the Upgrade that will be subject to Harris's then -prevailing policies, terms and Billable Fees related to pricing and hourly rates. 7. Updates All Updates of the Software and all those services listed in Exhibit 2 which are included as part of the Support and Maintenance Services will be made available to Or anization at no additional charge other than the payment of the Support and 7. Mntenance Fee, the Billable Fees, and any other amounts payable under this Agreement. 8. Compliance with Laws. The Organization shall comply with all applicable local, state, federal, and foreign laws, treaties, regulations, and conventions in connection with its configuration and use of the Software, including without limitation those related to privacy, electronic communications and anti -span legislation. Organization is -3- responsible for ensuring that its configuration and use of the Software to store or process' credit card data complies with applicable Payment Card Industry Data Security Stand -ds ("PCI DSS") and The Fair and Accurate Credit Transactions Act ("FA A") requirements and shall not store credit card and social security data in the syst i except in the designated encrypted fields for such data. Organization is solely responsible for re- validating the configuration settings used with the Software following the,'rnstallation of any Updates or Upgrades prior to using such Update or Upgrade.,411 a production environment. J 9. Payments. All payments hereunder shall be in U.S. dollars andAall be net of any taxes, tariffs or other governmental charges. Organization agrcesF,.to pay all foreign, federal, state, provincial, county or local income taxes, value added;{axes, use, personal, property sales and any other taxes, tariff, duty or similar charges; that may be levied by a taxing authority (excluding taxes on Harris' net income) on the Support and Maintenance Fee, the Billable Fees and any other fees set out in this Agreement. 10. Term. Unless terminated earlier in accordance `with this Agreement, the initial term of this Agreement shall be for the period that begins on the Start Date ending on December 31" or .Tune 30`1' of that same year dependirig on whether Organization selected January l" or July IS` as the Renewal Date (the "In"itial Term"). Thereafter, this Agreement shall be effective for ongoing one year terms="that shall automatically renew on an annual basis on the Renewal Date, unless terminated by either party upon giving to the other not less than three (3) month notice in writing prior to the end of any subsequent renewal term (such notice to be received by Harris no later than October ISM of the year preceding the date on which such renewal term is not being renewed) (a "Renewal Term"). Organization shall pay the then prevailing Support and Maintenance Fee (including any Third Party Software related fees) in advance :for each term of this Agreement and where the notice of non -renewal has not been provided in accordance with these terms, the Organization is obliged to pay the Support and Maintenance Fee for the next applicable Renewal Term. 1 1. Ownership. Title to and ownership of all copyright, trademarks, trade secrets, patents and all other ,intellectual property and proprietary rights in the Releases and all related proprietary ,,information supplied by Harris in providing the Support and Maintenance Services shall at all times remain with Harris, and Organization shall acquire no proprietary rights by virtue of this Agreement. Any updates related to Third Party Software shall be subject to the applicable Third Party Software licensor's agreement. 12. Termination. Harris shall have the right to tenninate this Agreement and/or suspend the provision of Support and Maintenance Services immediately if- a (i) Organization attempts to assign this Agreement or any of its rights hereunder, or undergoes a reorganization, without complying with the Software License Agreement; M 13. 14 (ii) Organization has not paid an invoice within ninety (90) days of the start of a Renewal Term; (iii) Organization (i) becornes insolvent; (ii) becomes the subject of airy proceeding under any banlauptcy, insolvency or liquidation law, whether voluntary or involuntary, which has not been resolved within rur-l'ety (90) days of commencement thereof; or (iii) becomes subject ,to property seizure under court injunction or other court order which has a material adverse effect on its ability to make payments when due hereunder; or (iv) Organization has breached or violated any obligations'of confidentiality or any intellectual property or proprietary right of Harris. 1 (b) This Agreement shall automatically terminate Ili the event that the Software License Agreement expires or is terminated, or in the event that the Software Implementation Services Agreement is terminated prior to the Completion of Services, as that term is defined therein. Effects of Termination. The termination or expiration of this Support and Maintenance Agreement shall result in the concurrent termination of the Software License Agreement and Software Implementation Services Agreement. Harris shall neither refund any Support and Maintenance Fees nor any Billable Fees if this Support and Maintenance Agreement is terminated. Disclaimer of Warranty. TO THE GREATEST EXTENT PERMITTED BY LAW, THE SUPPORT AND MAINTENANCE SERVICES PROVIDED BY HARRIS ARE PROVIDED "AS IS" AND THERE ARE NO WARRANTIES REPRESENTATIONS OR CONDITIONS EXPRESSED OR IMPLIED WRITTEN OR ORAL ARISING BY STATUTE OPERATION ,OF LAW COURSE OF DEALING USAGE OF TRADE OR OTHERWISE REGARDING THE SUPPORT AND MAINTENANCE SERVICES OR ANY OTHER PRODUCT OR SERVICE PROVIDED HEREUNDER OR IN CONNECTION HEREWITH. HARRIS DISCLAIMS ANY IMPLIED WARRANTY OR CONDITION OF MERCHANTABLE QUALITY MERCHANTABILITY, DURABILITY, ;FITNESS FOR A PARTICULAR PURPOSE, TITLE OR NON - INFRINGEMENT. HARRIS DOES NOT REPRESENT OR WARRANT THAT THE SOFTWARE"SHALL MEET ANY OR ALL OF ORGANIZATION'S PARTICULAR REOUIRENIENTS, THAT ALL ERRORS OR DEFECTS IN THE SOFTARE CAN BE Organization acknowledges and agrees that the Support and Maintenance Services are not/desivned nor intended to be used to maintain or manage any.products requiring fail- safe operation and where the failure of the products or Support Services could lead to ''death personal injury or environmental damage HARRIS DISCLAIMS ANY AND ALL WARRANTIES AND LIABILTY WITH RESPECT TO THE USE OF THE SUPPORT AND MAINTENANCE SERVICES IN SUCH HIGH RISK ACTIVITIES. -5- E" f 15. Notice. Unless otherwise agreed to by the parties, all notices required hereunder shall be/ made in accordance with the provisions of the License Agreement. 16. Waiver. Either party's lack of enforcement of any provision in this Agreement in the event of a breach by the other shall not be construed to be a waiver of any such provision and the non -breaching party may elect to enforce any such provision in the event of any repeated or continuing breach by the other. 17. Confidentiality. The particular provisions of this Agreement shall be deemed confidential in nature and neither Organization nor Harris ; s17a11 divulge any of its provisions as set forth herein to any third party except as may'`be required by law and the provisions related to Confidential Information as detailed in the Software License Agreement shall apply equally to this Agreement. '' 18. Limitation of Liability. (a) Termination of this Agreement shall no(affect any right of action of either party arising from anything which was done or not done, as the case may be, prior to the termination taking effect. �. (b) The Organization and Harris recognize that circumstances may arise entitling the Organization to damages forF`breach or other fault on the part of Harris arising from this Agreement. The parties agree that in all such circumstances the Organization's rernedies:and Harris's liabilities will be limited as set forth below and that these provisro,ns will survive notwithstanding the termination, expiration or other discharge of/the obligations of the parties under this Agreement. (c) THE AGGREGATE LIABILITY OF HARRIS TO ORGANIZATION FOR ALL CLAIMS, SUITS, ACTIONS AND PROCEEDINGS HOWSOEVER ARISING, DIRECTLY,OR INDIRECTLY, UNDER OR RELATING TO THIS SUPPORT AND MAINTENANCE AGREEMENT OR ITS SUBJECT MATTER, INCLUDING THOSE BASED ON BREACH OR REESCISSION OF CONTRACT, TORT, BREACH OF TRUST, OR BREACH OF FIDUCIARY DUTY SHALL NOT EXCEED, IN THE AGGREGATE, THE AMOUNT OF FEES ACTUALLY PAID BY THE ORGANIZATION TO HARRIS UNDER THIS SUPPORT AND MAINTENANCE AGREEMENT DURING THE THEN - CURRENT "TERM (AND IN NO EVENT BEING GREATER THAN 12 MONTHS) OF THE SUPPORT AND MAINTENANCE AGREEMENT UP TO AND INCLUDING THE DATE OF TERMINATION. IN ADDITION TO THE FOREGOING, NEITHER PARTY SI-LALL BE LIABLE TO THE OTHER FOR ANY CLAIMS FOR CONSEQUENTIAL DAMAGES, INCIDENTAL DAMAGES, INDIRECT DAMAGES, SPECIAL DAMAGES, AGGRAVATED DAMAGES, LOSS OF REVENUE, LOSS OF PROFITS, FAILURE TO REALIZE EXPECTED SAVINGS, LOSS OF DATA, LOSS OF BUSINESS OPPORTUNITY EITHER UNDER OR RELATING TO THIS SUPPORT AND MAINTENANCE AGREEMENT OR ITS SUBJECT -6- d' MATTER, WHETHER BASED ON BREACH OF RESCISSION OF CONTRACT, TORT, BREACH OF TRUST, OR BREACH OF FIDUCIARY DUTY EVEN IF SUCH OTHER PARTY HAS BEEN ADVISED OF THE LIKELIHOOD OF THE OCCURRENCE OF SUCH DAMAGES AND NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY fir, f 19. Remedies. Where remedies are expressly afforded by this Agreement, such remedies are intended by the parties to be the sole and exclusive remediesr/of the Organization for liabilities of the Harris arising out of or in connection with this Agreement, notwithstanding any remedy otherwise available at law or in equity. 20. Allocation of Risk. The parties agree that the limited warranties, disclaimers and limitation of liability as set out in in this Agreement are fundamental elements of the basis of bargain between Harris and Organization and set forth an allocation of risk p reflected in the fees and payments hereunder. ' 21. Governing Law. This Agreement shall be"governed by the laws of the Province of Ontario and the federal laws of Canada applicable therein. This Agreement excludes the Uniform Commercial Code and the United Nations Convention on Contracts for the International Sale of Goods (UNCCISG and any legislation implementing such Convention), if otherwise applicable:.' 22. Assignment. This Agreement>inay not be assigned by the Organization (including by way of Reorganization) unless; concurrently with any such assignment, the Organization assigns its rights under, and�complies with the provisions of the License Agreement. This Agreement shall be binding upon and enure to the benefit of the parties, their successors and permitted assigns. JJf 23. Severability. If any"provision of this Agreement is determined by a court of competent jurisdiction to be invalid or unenforceable under any applicable law, then such provision shall be deemed modified to the extent necessary in order to render such provision valid and enforceable. If such provision may not be so saved, it shall be severed and the remainder of'this Agreement shall remain in full force and effect. 24. Counterparts. This Agreement may be executed in counterparts (whether by facsimile signature or in PDF format via e-mail or otherwise), each of which when so executed shalt/constitute an original and all of which together shall constitute one and the same agreement. 25. /Mediation. The parties agree to submit any claim, controversy or dispute arising out of or relating to this Agreement to non -binding mediation before bringing a claim, % controversy or dispute in a court or before any other tribunal. The mediation is to be f conducted by either an individual mediator or a mediator appointed by mediation services mutually agreeable to the parties. The mediation shall take place at a time and location which is also mutually agreeable; provided; however, in no event shall the mediation -7- Rr k occur later than ninety (90) days after either party notifies the other of its desire to have`a dispute be placed before a mediator. Such mediator shall be knowledgeable in software system agreements. The costs and expenses of mediation, including compensation and expenses of the mediator (and except for the attorneys' fees incurred by either, -party), is to be shared by the parties equally. If the parties are unable to resolve' the claim, controversy or dispute within ninety (90) days after the date either party` provides the other notice of mediation, then either party may bring and initiate a legal proceeding to resolve the claim, controversy or dispute unless the time period is extended by a written agreement of the parties. 26. Survival. Sections 1, 2, 4, 5, 8, 9, 11, 13-27, and any other provision of this Agreement which is required to ensure that the parties fully exercise their rights and their obligations hereunder shall survive any termination or expiration unless and until waived expressly in writing by the party to whom they are of benefit. r jrr 27. Relationship. The parties are and shall at all times, independent contractors in the performance of this Agreement and nothing herein shall be deemed to create a joint venture, partnership or agency relationship between the Parties. Neither party will have the power to bind the other party or to contract in the name of or create any liability against the other party in any way for anyRpurposc. 28. Force Maieure. No default, delay oi" failure on the part of Harris shall be considered a breach of this Agreement where such default, delay or failure is due to a force majeure or to circumstances beyond its control. Such circumstances will include, without limitation, acts or omissions on the part of the School, strikes, riots, civil disturbances, actions or inactions concerning government authorities, epidemics, war, terrorist acts, embargoes, severe weather, fire, earthquakes, acts of God or the public enemy or default of a common carrier, the Internet or other electronic communications outside the control of r Harris, or other disasters or events. r' a -8- IN WITNESS WHEREOF, the parties have caused the Agreement to be executed,:,` by and through their authorized officers. CONSULTANT, CITY OF HUNTINGTON BEACH, N. HARRIS COMP7RPORATION a municipal corporation of the State of California (I-1ARRIS) By: , print name 1TS: (circle ore) Chairman/President/Vice President AND By: print name ITS: (circle one) Secretary/Chief Financial Officer/Asst. Secretary - Treasurer f` Mayor .r rf . City Clerk f' ,F INITIATED AND APPROVED: Chief Financial Officer REVIEWED AND APPROVED: City Manager APPROVED ity l�° T _._I_ _1_ -1 ATTACHMENT #3 SOFTWARE LICENSE AGREEMENT THIS SOFTWARE LICENSE AGREEMENT trade as of the day of ("Effective Date"). BETWEEN: N. HARRIS COMPUTER CORPORATION ("Harris") - and - THE CITY OF HUNTINGTON ("Organization") RECITALS 1. Harris wishes to grant the Organization a license to°utilize the Software; 2. The Organization wishes to acquire a license to utilize the Software. 3. The Organization and Harris agree to enter into three (3) separate agreements each dealing with a separate aspect of the Software: this Software License Agreement, a support and maintenance agreement/(the "Support and Maintenance Agreement") and a software implementation services agreement (the "Software Implementation Services Agreement"), each dated the same date as the Effective Date. NOW THEREFORE, in/ consideration of the mutual covenants set out in this Agreement and for other good and valuable consideration (the receipt and sufficiency of which is hereby acknowledged), the parties agree as follows: Article I. INTERPRETATION Section 1.01 Definitions Throughout this Agreement, except as otherwise expressly provided, the following words and expressions shall have the following meanings: (a) "Agreement" and similar expressions mean this Software License Agreement, including a`ll of its Schedules and all instruments supplementing, amending or confirming this / Agreement. All references to "Articles" or "Sections" mean and refer to the specified Article or Section of this Agreement except where a different agreement is explicitly identified. -I- (b) "Annual Receipt Volume" means the total number of Receipts paid for by for the current Annual Support Term. s (c) "Annual Support 'Perin" means the annual term of maintenance and support services as set out in the Support and Maintenance Agreement. r' (d) "Completion of Set -vices" shall have the definition ascribed to it in the Software Implementation Services Agreement. �r (e) "Confidential Information" means the Software and all,,information or material that either party treats as confidential and any information relating to third parties that a party has an obligation to treat as confidential, which is disclosed by or obtained by a party in connection with this Agreement, whether such inforination is in oral, written, graphic or electronic form, which: is (A) marked "Confidential," "Restricted," or "Proprietary Information" or other similar marking, (B) known by the parties to be considered confidential or proprietary, or (C) which should be known or understood to be confidential or proprietary by an individual ,,exercising reasonable commercial judgment in the circumstances. Confidential Information does not include information to the extent that such information: (i) is or becomes generally known to the public by any means other than a breach of the obligations./of a receiving party hereunder; (ii) was previously known to the receiving party as evidenced by its written records; (iii) is rightly received by the receiving party from a third," arty who is not under an obligation of confidentiality; (iv) is independently developed/by the receiving party without reference to or use of the other party's Confidential lnformation which such independent development can be established by evidence that would be acceptable to a court of competent jurisdiction. Organization's customers/and their information is not considered to be Confidential Information. (f) "Designated Computer System" shall mean one (1) production cnvirormient, up to three (3) test environments (non -production), and up to one (1) of each of the following additional non -production environments: disaster recovery, disaster testing, archival, and backup (each of which may only be accessed for the related purposes and for only so long as the related/purpose requires) owned or controlled by the Organization. (g) "Documentation" means user guides, operating manuals, educational materials, product descriptions and specifications, technical manuals, supporting materials, and other information regarding the Software regardless of the media on which it is provided. (h) "End User" means a customer of Organization to whom Organization will provide access to the interface portion of the Software and whose use of the Software is for its %own account and not for another commercial purpose. i) "License" means the license rights granted to the Organization pursuant to Section 2.01 hereof. (j) "Receipt(s)" means each bill or invoice issued by Organization that has been paid by a customer of Organization and is recorded or stored in the Software during the Annual Support Term. -2- (k) "Release" means an Update and an Upgrade. (1) "Required Programs" and "Required Hardware", have the meaning set out in&ction 3.04. (m) "Site" means solely at the production cnvirorunent described in Schedulca�'. A" and at an unlimited number of non -production enviromnents. (n) "Software" means the software products that are listed in Schedule "A" and includes any Update(s) or Upgrade(s) that have been provided to Organization pursuant to the Support and Maintenance Agreement that has been entered into between I-Iairis and the Organization. Third Party Software is not included in the definition of Software except where this Agreement explicitly states otherwise. (o) "Subcontractor" means a third party with which Harris has an agreement to provide certain Services related to its resale of Third Party S,ohware. The Subcontractors as of the Effective Date are those listed in subsection 4.4 of'ihe Software Implementation Services Agreement. (p) "System Software" means third party software that is provided by a third party and which is provided to Organization on hardware as further described in Schedule "D". (q) "Third Party Software" means the4hird party software product that is provided by Subcontractor as delineated in Schedule "C". All licenses related to Third Party Software shall be between Organization and the Third Party Software licensor even though Harris may invoice and collect the licensing fees on the Subcontractor's and Third Party Software licensor's behalf. Future Releases of the Software may require alternate third party software to be licensed by Organization, which will be subject to a third party license agreement between Organization and the relevant third party software licensor. In such case Schedule `,C" shall be amended in accordance with Section 6.08 to add any such third party software and it shall be deemed "Third Party Software" for the purposes of this Agreement. (r) "Update" means'I'any published changes, additions or corrections to the Software that primarily include a minor modification or enhancement to the Software related to a bug fix, minor additional functionality or legislative changes. An Update is designated by a change in the right -most digit in the version number (for example, a change from X.I to X.2). 11/ (s) "Upgrade" means a major overhaul of the Software which is a complete new published version of the Software that modifies, revises or alters the Software and adds features, functionality or enhancements to such Software. An Upgrade is designated by a change uia the number to the left of the decimal point in the version number (for example, a ;`change from 1.X to 2.X. "User" means any employee of Organization or any of Organization's agents who have been authorized by Organization, in advance of the agents' access to the Software, pursuant to the terms of this Agreement to have access to the Software. - 3 - Section 1.02 Currency Unless otherwise specified, all references to amounts of money in this A and the related Schedules refer to U.S, currency. Section 1.03 Schedules The Schedules described below and appended to this Agrcement''shall be deemed to be integral parts of this Agreement. Schedule "A" - Description of Software Schedule "B" - License Fees & Payment Schedule sd"i Schedule "C" - Third Party Software License and,Third Party Software Terms Schedule "D" - System Software ' In the event of any conflict or inconsistency between the terms and conditions in the main body of this Agreement and the terms and conditions in any Schedule, the terns and conditions of the main body of this Agreement shall control unless otherwise expressly stated in the provision giving rise to the conflict or inconsistency. Article II`. SOFTWARE, LICENSES Section 2.01 Grant of Licenses (a) Subject to the terms and conditions of this Agreement including without limitation the payment of the License Pees (as defined in Section 4.01) and all applicable fees under the Support and Mai ntenance,rAgreement, Harris hereby grants to the Organization a 11 personal, non-exclusive, non -transferable and limited right and license to: (1) use the Documentation and the Software in object code format on the Designated Computer System/ gat the Site solely for the Annual Receipt Volume solely for the purposes set out,.in Section 2.01(b). (ii) copy: (A) the' Software for use at the Site on the Designated Computer System, access to which by Users can be from any computer terminal, whether internal to or external to Organization's facility incorporating the Designated Computer System; and (B) the Documentation, provided that Organization must reproduce any copyright or other notice marked on any part of the Software and Documentation on all authorized copies and'must not alter or remove any such copyright or other notice. To the extent that any temporary files associated with the Software are created on any computer terminal used ,,,,'by Users to access the Designated Computer System, those temporary files are permitted but only for such time that the temporary tiles are actually required. Organization agrees that the original copy of all Software furnished by Harris and all copies thereof made by Organization are and at all times remain the sole property of Harris. -4- (b) The Organization may: (i) use the Software solely for its municipal and corporate purposes including, but not limited to, performing testing, disaster recovery, disaster testing, training, archival and backup as the Organization deems necessary, : and (ii) modify the Documentation solely for the purpose of creating and using training"materials relating to the Software, which training materials may include flow diagrams, system operation schematics, and/or screen prints from operation of the Software. Access to and use of the Software by independent contractors of the Organization shall be considered authorized use under this Section so long assuch independent contractors are bound by obligations of confidentiality at least as protective of Harris' Confidential Information, and terms and conditions at least as protective of Harris' rights in and to the Software, as the terms and conditions of this Agreement. The Organization "'shall be responsible for (i) all of the actions of and (ii) any misuse of the Software by any independent contractor. (c) The license rights granted in this Section 2.01 do not include the right to use any Third Party Software. (d) The license rights granted in this Section 2.01 is.subject to the Organization continuing to have the Support and Maintenance Agreementfin effect and having paid all Support Fees as required under the Support and Maintenance Agreement. Section 2.02 Ter►n This Agreement commences on the Effective Date and shall continue to be in force te unless ternunated pursuant to the terms hereof (the "Ter►n"). Section 2.03 Restrictions on Use (a) Without linuting the generality of Section 2.01 and in addition to the other restrictions listed therein, Organization shall not, and will not allow, direct or authorize (directly or indirectly) any tlurd,:party to: (1) use the Software for any purpose other than in connection with Or" nization's primary business or operations; (ii) disassemble, de - compile, reverse engineer, defeat license encryption mechanisms, or translate any part of the Software, or' otherwise attempt to reconstruct or discover the source code of the Software excgpt and only to the extent that applicable law expressly permits, despite this limitation; (iii) modify or create derivate works of the Software or merge all or any part of the Software with another program; (iv) rent, lease, lend, distribute, transfer, assign or use the ,Software for timesharing or bureau use or to publish or host the Software for others.:to use; or (v) take any actions that would cause the Software to become subject to any peen source or quasi -open source license agreement. (b) The Organization shall comply with all applicable local, state, federal, and foreign laws, ./ireaties, regulations, and conventions in connection with its configuration and use of the .`' Software, including without limitation those related to privacy, electronic conununications and anti -spans legislation. Organization is solely responsible for ensuring that its configuration and use of the Software to store or process credit card data complies with applicable Payment Card Industry Data Security Standards ("PCI DSS") and The Fair and Accurate Credit Transactions Act ("FACTA") requirements and shall - 5 - 4 not store credit card and social security data in the system except in the designated encrypted fields for such data. Organization is solely responsible for re -validating the configuration settings used with the Software following the installation of any Updates or Upgrades prior to using such Update or Upgrade in a production environment. Section 2.04 Ownership of Software (a) The Software and related materials supplied by Harris are protected by copyright and trademark laws. The Software is licensed and may not be resold by Organization. Any rights not expressly granted herein are reserved. Organization may not obscure, remove or otherwise alter any copyright, trademark or other ,,proprietary notices from the Software and related materials supplied by Harris. of (b) Organization acknowledges and agrees that Harris' is and shall remain the sole and exclusive owner of the Software, including without limitation any and all proprietary rights under (a) patent law; (b) copyright law;, (c) trade -mark law; (e) design patent or industrial design Iaw; or (d) any other statutory provision or common law principle applicable to this Agreement, including trade secret law, which may provide a right in either ideas, formulae, algorithms, concepts, inventions or know-how generally, or the expression or use of such ideas, formulae, algorithms, concepts, inventions or know-how. Organization shall report to Harris ari. infringement or misappropriation of Harris' rights in the Software of which Organization becomes aware. (c) In order to assist Harris with the protection of its proprietary information and Confidential Inforination and to enable Harris to ensure that the Organization is complying with its obligations (including those related to volume of generated receipts by Organization in terms of calculating the License fee), Organization shall permit Harris to: (i) visit during normal business hours any premises at which the Software is used or installed and shall provide Harris with access to its Software with reasonable,notice and no more than once in any twelve (12) month period, unless the Organization has been found during a previous audit to not have adhered to the License obligations in this Article II or to have reported an up to date volume of generated receipts. Harris shall provide Organization with reasonable notice of any��'such audit; t° (ii) remotely connect with the Designated Computer System and obtain data that either permits Harris to detennine the volume of receipts generated using the Software or whether Organization is complying with the terms of the License and otherwise perform telemetry to determine Organization's compliance with the terms of this Agreement; and (iii) to obtain aggregate data for Harris's internal use or for Software and other product enhancements. As a partial consideration for the license and net fees charged to Customer, Customer agrees that, upon execution of the Agreement, Customer will — upon Harris's request - ' participate in a joint release with Harris regarding the Agreement which shall not be -6- released prior to obtaining written approval from Customer; and thereafter, Customer will allow Harris to use it as a reference account for marketing purposes, including (1) allowing Harris to reference Customer- on its reference account customer lists in print and on its website; (ii) providing quotes for Harris's press releases and website,s"subject to Customer's prior review and approval of text; and (iii) participating in " one phone interview for the development of a webinar. Section 2.05 Third Party Software (a) Harris shall distribute to Organization the Third Party Software which is described as Third Party Software in Schedule "C" and which may also be referenced as being "Purchased Software" throughout the schedules. Organization shall pay Harris for the Third Party Software in the amount of the purchase price(s) listed on Schedule "B". Hands and/or the Third Party Software manufacturer(s) will provide Organization with one copy of the then current user documentation for use with the Third Party Software. (b) It is acknowledged by the parties hereto that the 'Third Party Software provided by Hands to Organization pursuant to this Agreement was "developed and delivered to Harris by one or more third party software companies. As,such, the Third Party Software is licensed to Organization by the applicable licensor listed in Schedule "A" and subject to the terms and conditions of the applicable license,.,agreenient for such Third Party Software. Harris makes no warranties, express or implied, with respect to the Third Party Software, including, without limitation, their merchantability or fitness for a particular purpose and Harris accepts no liability of any kind whatsoever with respect to the Third Party Software. Any warranty Organization has with respect to the Third Party Software shall be solely provided by the Third Party Software licensor except where this Agreement may expressly state otherwise. (c) Organization acknowledges that its interest in the Third Party Software shall be in the nature of a license or,sublicense with one or more of the Third Party Software licensors which may: (i) requi`re Organization to enter into one or more separate end user license agreements with such Third Party Software licensors, and/or (ii) place restrictions on Organization's use of the Third Party Software. Concurrently with the execution of this Agreement, the Organization shall execute the end user license agreements for the Third Party Software attached hereto as Schedule "C". The Organization acknowledges that all remedies available to the Organization in relation to the Third Party Software are provided,,only by the Third Party Software licensor in the end user license agreement. The parties agree that although the Support and Maintenance Agreement may contain estimated prices for ',the annual maintenance of the Third Party Software, any maintenance of the Third Party Software shall be provided solely by the Third Party Software licensors through separate agreements between Organization and such Third Party Software licensors. In no event shall Hands be responsible for such Third Party Software maintenance except where the Third Party Software license may expressly state otherwise. f /Section 2.06 ,r f" -7- i Section 2.07 System Software (a) This Section 2.06 shall only be applicable in the event any System Softwarexs listed on Schedule "D" and/or is included with the purchase of any hardware. (b) Harris shall distribute to Organization the System Software, and Organization shall pay Harris for the System Software in the amount of the purchase prices) listed on Schedule "B" and/or which may be included in the purchase price of the hardware. Upon delivery of the System Software to Organization, Harris shall invoice Organization for the System Software (unless the price of the System Software is included in the price of the hardware), and Organization shall pay for the same withiri:4hirty (30) days. Delivery of the System Software shall be deemed to have occurred:,(i) on the date for which Harris delivers hardware to Organization with the System Software installed thereon, F.O.B. point of destination, provided that Organization shalYpay the shipping charges, or (ii) the date on which Harris installs the System Software on Organization's hardware. Harris and/or the System Software manufacturers) wilfprovide Organization with one copy of the then current user documentation for use with the System Software. f (c) Except as otherwise provided in this Agreement, Organization shall be responsible for the installation of the System Software at ,Organization's location. If Organization desires Harris to perform any installation which is not described in this Agreement, Harris and Organization shall follow the procedures set forth in this Agreement. (d) It is acknowledged by the parties hereto that the System Software provided by Harris to Organization pursuant to this Agreement was developed and delivered to Harris by one or more third party software c6mpanies. As such, Harris makes no warranties, express or implied, with respect to `?the System Software, including, without limitation, their merchantability or fitness for a particular purpose. Any warranty Organization has with respect to the System,/Software shall be solely provided by the third party software companies. Additionally, Organization acknowledges that its interest in the System Software may be in the nature of a license with one or more of the third party software companies which nay: (i) require Organization to enter into one or more separate license agreements with such third party software companies, and/or (ii) place restrictions on Organization'Vs use of the System Software. (e) The parties agree that although this Agreement may contain estimated prices for the annual niaintenauce of the System Software, any maintenance of the System Software shall ,,,be provided solely by the third party software companies through separate agreeiiients between Organization and such third party software companies. In no event shall Harris be responsible for such System Software maintenance. x 11 1 i� R Article III. REPRESENTATIONS AND WARRANTIES Section 3.01 Warranty of Performance Harris warrants to the Organization that: (a) the Software will substantially perform as described in the Documentation if the Software is used in accordance with the Documentation, the terms of this,4reement, and where the Organization has used the Required Programs and the "',Required Hardware and properly configured the Software. The OrgarizationIs sole remedy in the event the Software does not conform to the Documentation is the repair and replacement of the Software. (b) it has the full right, authority and power to enter into tliis Agreement. Section 3.02 Exclusions to Warranty Harris shall not be liable for any breach of the foregoing warranties which results from causes beyond the reasonable control of Hai.Tis, including 11 (a) where the installation, configuration,,'integration, modification or enhancement of the Software has not been carried out by Harris or its authorized agent, or where Organization has taken any action{which is expressly prohibited by the Documentation or this Agreement; (b) any use or combination of,the Software with any software, equipment or services not supplied by or on behalf of`Harris; (c) user error, or other use of the Software in a manner or in an operating enviromnent for which it was not intended or other than as permitted in the relevant scope of work or in this Agreement; (d) Organization's'failure to install a new Update which has been released to remedy an error or bug, and which Harris has stated to Organization is a required Update necessary for security purposes or for legislative compliance purposes or other reasons as Harris may determine is important in its sole discretion; (e) Organization's failure to perform a re -validation of configuration settings following the installation of an Update before using the Update in a production environment; or (f) %any other event of force maj eure as set out in Section 6.21. Section 3.03 No Other Warranties EXCEPT AS EXPRESSLY STATED IN SECTION 3.01, TO THE GREATEST i' EXTENT PERMITTED BY LAW, THE SOFTWARE IS LICENSED AND ALL OTHER MATERIALS AND SERVICES ARE PROVIDED TO THE ORGANIZATION "AS IS" AND -9- THERE ARE NO WARRANTIES, REPRESENTATIONS OR CONDITIONS, EXPRESSED OR IMPLIED, WRITTEN OR ORAL, ARISING BY STATUTE, OPERATION OF LAW, COURSE OF DEALING, USAGE OF TRADE OR OTHERWISE, REGARDING THEM OR ANY OTHER PRODUCT, SERVICE OR MATERIAL PROVIDED HEREUNDER OR IN CONNECTION HERE WITH. HARRIS. ITS LICENSORS AND SUPPLIERS DISCLAIM ANY IMPLIED WARRANTIES OR CONDITIONS REGARDING THE SOFTWARE AND ANY OTHER PRODUCTS, SERVICES AND MATERIALS PROVIDED HEREUNDER OR IN CONNECTION HEREWITH, INCLUDING, BUT NOT LIMITED TO, WARRANTIES OF MERCHANTABLE QUALITY, MERCHANTABILITY, DURABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, OR NON -INFRINGEMENT. HARRIS DOES NOT REPRESENT OR WARRANT THAT THE SOFTWARE SHALL OPERATE ERROR FREE OR IN THE COMBINATIONS SELECTED, THAT IT SHALL MEET ANY OR ALL OF THE ORGANIZATION'S PARTICULAR REQUIREMENTS, OR THAT ALL ERRORS OR DEFECTS IN THE SOFTWARE CAN BE FOUND OR CORRECTED. NO AGREEMENTS VARYING OR EXTENDING ANY EXPRESS WARRANTIES SET FORTH IN THIS AGREEMENT SIIALL BE BINDING ON EITHER PARTY UNLESS M WRITING AND SIGNED BY AN AUTHORIZED SIGNING OFFICER OF HARRIS. Subject to the requirements of Section 3.01, Harris reserves the right to correct any defects about which it is made aware and to produce Releases at a time of Harris's own choosing and at Harris's discretion. Section 3.04 Required Programs and Hardware (a) The Organization acknowledges that the use of the Software requires that the Organization obtain and install additional required software programs (the "Required Programs"), as detailed in the attached Schedule "A". The Organization agrees that the acquisition of the/Required Programs shall be at its sole cost and that the cost thereof is not included in the fees herein, including for any future updates about which Organization is"provided with commercially reasonable advance notice. (b) The Orgap zation acluiowledges that the use of the Software requires the that the Organization have at minimum the hardware as may be referenced by Harris programs (the "Required Hardware") as detailed in the attached Schedule "A". Organization's hardware must also be of sufficient quality, condition and repair, and the Organization agrees to maintain its hardware in the appropriate quality, condition and repair at its sole cost and expense, in order to facilitate the achievement of the proper installation and .'implementation of the Software in accordance the Software Implementation Services ;s' Agreement; Upgrades about which Organization is provided with commercially reasonable advance notice; and the general use of the Software by Organization. If Harris determines that Organization's hardware is not of sufficient quality, condition and repair, Harris shall notify Organization in writing of the hardware deficiencies. Organization will strive to remedy any hardware deficiencies within 30 days of - 10- I notification. In no event shall Harris be responsible for such hardware maintenance $� except as contracted for in writing with the Organization. p4. Article IV. FEES AND PAYMENTS Section 4.01 Fees and Payments fi (a) The Organization agrees to pay Harris the total license fees detailed in,`Schedule "B" (the "License Fees") in accordance with the payment schedule set out "iii Schedule "B". The License Fees and any other fees set out in this Agreement rare exclusive of taxes. Organization agrees to pay all foreign, federal, state, provincial, county or local income taxes, value added taxes, use, personal, property, sales and any other taxes, tariff, duty or similar charges that may be levied by a taxing authority( excluding taxes on IIarris' net income).. (b) The License fee is based on the total number of Receipts in each calendar year (or with respect to the first year, the pro -rated amount). Where the Organization generates Receipts in any subsequent calendar year that `exceeds the Annual Receipt Volume, the Organization shall inform Harris of such additional number of Receipts (or pursuant to Harris's audit rights under Section 2.04(c); based on the number of Receipts determined by Harris) and thereafter Harris shall invoice for the then current year (and any applicable previous year) the additional License fee applicable to such additional Receipts. � f. (c) Except for any aspect of the License fee which is payable on the Effective Date, during the Term Organization shall have thirty (30) days after the date outlined in the payment schedule in Schedule "B" to pay Harris the applicable License Fee (or part thereof). Section 4.02 Additional Li (a) Despite the iiiformation provided in Schedule `B" to this Agreement, whenever IIarris has the right to invoice Organization for additional License Fees based on the total number of Receipts, the new License Fee will be based on Harris's then current License Fees for that applicable volume of Receipts. (b) The License'Fee cannot be decreased even where the volume of Receipts decreases. Article V. REMEDIES, LIABILITY AND INDEMNITY 5.01 Remedies and Liability a) Termination of this Agreement shall not affect any right of action of either party arising from anything which was done or not done, as the case may be, prior to the termination taking effect. - 11 - Y, (b) The Organization and Harris recognize that circumstances may arise entitling the ,/' Organization to damages for breach or other fault on the part of Harris arising from this Agreement. The parties agree that in all such circumstances the Organization's remedies and Harris's liabilities will be limited as set forth below and that these provision's will survive notwithstanding the termination or other discharge of the obligations of the parties under this Agreement. (i) EXCEPT FOR DAMAGES ARISING OUT OF (a) HARRIS'S' BREACH OF ITS CONFIDENTIALITY OBLIGATIONS, (b) HARRIS'S" INTENTIONAL, MISREPRESENTATION, GROSS NEGLIGENCE OR WILLFUL MISCONDUCT, OR (c) HARRIS'S INDEMNIFICATION OBLIGATIONS SET FORTH IN SECTION 5.03, BOTH PARTIES AGREE THAT HARRIS'S LIABILITY (UNDER BREACH OF CONTRACT;! NEGLIGENCE, STRICT LIABILITY OR OTHERWISE), IF ANY, FOR- ANY DIRECT DAMAGES RELATING TO OR ARISING UNDER THIS LICENSE AGREEMENT SHALL NOT EXCEED IN THE AGGREGATE THE LICENSE FEES PAID TO HARRIS BY THE ORGANIZATION ,JN CONNECTION WITH THIS LICENSE AGREEMENT. IN ADDITION TO THE FOREGOING, NEITHER PARTY SHALL BE LIABLE FOR CONSEQUENTIAL, INCIDENTAL, INDIRECT, SPECIAL OR OTHER DAMAGES OF ANY KIND, INCLUDING BUT NOT LIMITED TO LOST REVENUE OR LOSS; -OF PROFITS, EVEN IF SUCH OTHER PARTY HAS BEEN ADVISED OF -`THE LIKELIHOOD OF THE OCCURRENCE OF SUCH DAMAGES AND NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE'OF ANY LIMITED REMEDY. (iii) CLAUSES (i) AND (ii) SHALL APPLY IN RESPECT OF ANY CLAIM, DEMAND OR ACTION BY A PARTY IRRESPECTIVE OF THE NATURE OF THE CAUSE .OF ACTION UNDERLYING SUCH CLAIM, DEMAND OR ACTION, INCLUDING, BUT NOT LIMITED TO, BREACH OF CONTRACT OR TORT./ Section 5.02 Intellectual Pro (a) In the event there is a third party claim against Organization alleging that Organization's use of the eSoftware in accordance with this Agreement constitutes an infringement of a Canadian or United States' patent, copyright, trade -mark or trade secret or other intellectual property that is valid and enforceable in Organization's jurisdiction, Harris shall, at its expense, defend and indemnify Organization and pay any amounts finally awarded by a court of competent jurisdiction or agreed to in a settlement approved by ,/Har is in advance, provided that:(i) Organization gives Harris prompt written notice of ,r any such claim and full opportunity to defend the same; (ii) Organization has not made any admissions or entered into any settlement negotiations either prior to or after providing notice to Harris of the applicable claim except. with Harris's prior written consent, (iii) Harris has sole control of the defense of any claim or proceeding and all -12- a negotiations for its compromise or settlement; and (iv) Organization assists and provides information to Harris throughout the action or proceeding. (b) Han -is' liability for any claims under this Section 5.03 shall be reduced to the extent such claim arises from (i) alterations or modifications to the Software by Organizationor a third party in any manner whatsoever except with the prior written consent of Harris; (ii) combination, integration or use of the Software with software, hardwarc,' or other materials not approved by Harris where such claim would not have arisen -'but for such combination, integration or use; (iii) use of the Software other than in compliance with this Agreement; (v) compliance with the Organization's written" instructions or specifications; or (vi) use of the Software after notice from Harris that" it should cease due to possible infringement. (c) Any breach by Organization of its covenants under this Section 5.02 shall nullify this indemnity but not the sole right of Harris to have full and complete authority of the defense to defend such claim or proceeding and of all Negotiations related therewith and the settlement thereof. In the event that the Organizati`on's use of the Software is finally held to be infringing or Harris deems that it may be' held to be infringing, Organization agrees that the only remedy available to it is thatAarns shall be, at Iarris's election, for Harris to: (1) procure for the Organization the right to continue use of the Software; or (2) modify or replace the Software so that it becomes non -infringing. P (d) The foregoing states Harris's entire liability, and the Organization's exclusive remedy, with respect to any claims of infringement of any copyright, patent, trade -mark, trade secret or other intellectual property,,and property interest rights relating to the Software, or any part thereof or use thereof... (e) Organization may, at Organization's sole cost and expense —which is outside the scope of this indemnity retain counsel of its own choosing who shall be permitted to attend all settlement conferences and hearings or other court appearances (except where the court has specifically made an' order against such attendance) related to the proceeding. (f) The indemnity provisions of this Section 5.02 shall not apply to any Third Party Software and System Software and Harris shall have the right to substitute the licensor of the Third Party Software,,to perform Harris's obligations hereunder and the Organization agrees to release Harris -'from any obligations related to such Third Party Software. Article VI. CONFIDENTIALITY Section 6.01 Confidentiality The parties each acknowledge that each party may receive Confidential Information from the other party or otherwise in connection with this Agreement. Each of the parties agree: -13- G) to maintain the Confidential Information of the other party in confidence and 'Jo take all reasonable steps, which shall be no less than those steps it takes to protect its own confidential and proprietary information, to protect the Confidential Information of the other party from unauthorized use, disclosure, copying or publication; (ii) not to use the Confidential Information of the other party other than in the course of exercising its rights or performing its obligations under this Agreement; (iii) not to disclose or release such Confidential Information' except to the extent required by applicable law or during the courses of or " in connection with any litigation, arbitration or other proceeding based upon `or in connection with the subject matter of this Agreement, provided that thc'Aeceiving party shall first give reasonable notice to the disclosing party priot-%io such disclosure so that the disclosing party may obtain a protective order or equivalent and provided that the receiving party shall comply with any such protective order or equivalent; and (iv) not to disclose or release such Confidential Information to any third person without the prior written consent of"the Organization, except for authorized employees or agents of the receiving party who have a need to know such information for the purpose of performance under this Agreement and exercising its rights under this Agreement,_ and who are bound by confidentiality obligations at least as protective of the disclosing party's Confidential Information as this Agreement. Article VII. TERMINATION Section 7.01 Termination This Agreement may be terminated as follows: (a) If either party should fail to comply with its obligations under this Agreement, the other party must notify the breaching party in writing of such default (a "Default Notice"). Upon receipt`of a Default Notice, the breaching party must correct the default at no additional cost to the other party, or issue a written notice of its own disputing the alleged default, in either case within thirty (30) days immediately following receipt of a Default Notice. If the breaching party fails to (1) issue a notice disputing the alleged default within such thirty (30) day period; or (ii) correct the default within ninety (90) days following receipt of the Default Notice, the other party may terminate the whole of this Agreement effective upon written notice to the other party. (b)" If Organization has failed to pay the license fees in accordance with Article IV then Harris shall have the right to terminate the license rights granted herein and this Agreement effective immediately upon written notice to Organization to that effect. s� (c) Notwithstanding any other provision of this_Agreement, if the Organization breaches (1) any term of Section 2.03, Section 2.04 or any other intellectual property right of Harris; - 14- t�' or (ii) its confidentiality obligations under Section 6.01, then Harris shall have the r1g4t4o terminate this Agreement effective immediately upon written notice to Organization to that effect and the license rights granted herein shall immediately terminate. (d) Either party may terminate this Agreement effective immediately upon written notice to the other party if the other party: (i) becomes insolvent; (ii) becomes the`'subject of any proceeding under any bankruptcy, insolvency or liquidation law, whether domestic or foreign, and whether voluntary or involuntary, which is not resolved favourably to the subject party within ninety (90) days of commencement thereof; or (Ili) becomes subject to property seizure under court order, court injunction or otherjeourt order which has a material adverse effect on its ability to perform hereunder. (e) This Agreement shall automatically terminate in the event that the Software Implementation Services Agreement is terminated priorrio the Completion of Services, as that term is defined therein, or in the event that the Support and Maintenance Agreement is terminated or expires. The termination of this Agreement shall result in the automatic 'Ieconcurrent termination of the Support and Maintenance Agreement and of the Software Implementation Services Agreement. ,f Section 7.02 Effects of Termination (a) If this Agreement is terminated or expires, then within thirty (30) days following such termination/expiration, the Organization shall either return to Harris or delete the Software from all of its locations (except as required under any statute related to retention requirements) and shall certify;" under the hand of a duly authorized officer of the Organization, that all copies of the Software or any part thereof, in any form, within the possession or control of the Organization have either been returned to Harris or deleted. (b) Despite anything in this Agreement to the contrary, all warranties related to the Software automatically terniinate`upon the termination of this Agreement. Article VIII. GENERAL Section 8.01 Mediation 'Except where this Agreement explicitly states that this Section does not apply, the parties agree to submit any claim, controversy or dispute arising out of or relating to this Agreement or the relationship created by this Agreement to non -binding mediation before bringing a claim, controversy or dispute in a court or before any other tribunal. The mediation is to be.:conducted by either an individual mediator or a mediator appointed by mediation services mutually agreeable to the parties. Such mediator shall be knowledgeable in software system agreements. The mediation shall take place at a time and location which is also mutually ,.agreeable; provided; however, in no event shall the mediation occur later than ninety (90) days after either party notifies the other of its desire to have a dispute be placed before a mediator. The costs and expenses of mediation, including compensation and expenses of the mediator (and -15- F l except for the attorneys' fees incurred by either party), is to be shared by the parties equally. If the parties are unable to resolve the claim, controversy or dispute within ninety (90) days after ; the date either party provides the other notice of mediation, then either party may bring and initiate a legal proceeding to resolve the claim, controversy or dispute unless the time period is extended by a written agreement of the parties. Nothing in this Section shall inhibit a party's right to seek injunctive relief at any time. Section 8.02 Addresses for Notice Any notice required or permitted to be given to any party to this'Agreement shall be given in writing and shall be delivered personally, mailed by prepaid registered post or sent by facsimile to the appropriate address or facsimile number set out below.,,, Any such notice shall be conclusively deemed to have been given and received on the day o,n'wwhich it is delivered or transmitted (or on the next succeeding business day if delivered or,received by facsimile after 5:00 p.m. local time on the date of delivery or receipt, or if delivered or received by facsimile on a day other than a business day), if personally delivered or sent by facsimile or, if mailed, on the third business day following the date of mailing, and addressed 'in the case of IIarris, to: N. HARRIS COMPUTER CORPORATION 1 Antares Drive, Suite 400 Ottawa, Ontario K2E 8C4 Attention: CEO Telephone: 613-226-5511, extension 2149 With a copy to: legal@liarriscomputer.com f and in the case of the Organization, to: City of Huntington Beach 2000 Main Street` Huntington Beach, CA 92648 Attention: ,:' Jim Slobojan, Fiscal Services Manager Telephone': 714-960-8820 With,d copy to: jzacks a surfeits-hb.org Each party may change its particulars respecting notice, by issuing notice to the other party in the manner described in this Section 8.02. 8.03 Assignment ` Neither party may assign any of its rights or duties under this Agreement without the prior written consent of the other party, such consent not to be unreasonably withheld, except that either party may assign to a successor entity in the event of its dissolution, acquisition, -I6- merger, sale of substantially all of its assets, or other change in legal status. The Agreement inure to the benefit of and be binding upon the parties to this Agreement and their resspf successors and permitted assigns ,. Section 8.04 Reorganizations The Organization acknowledges that the License Fee set out in this Agreement has been established on the basis of the structure of the Organization as of the Effective Date. To the extent that the Organization amalgamates, consolidates or undergoes any/similar form of corporate reorganization or transition (a "Reorganization"), and the resulting entity (whether or not the Organization is the resulting or continuing entity) requires additional Licenses to support the system, Harris shall be entitled to receive, and the Organization shall pay, an additional License Fee based on the then prevailing License Fee in effect./The provisions of this Section 6.07 shall apply to any subsequent Reorganizations occurring'fohlowing the first Reorganization. The provisions of this Section 8.04 shall not apply where the Organization undergoes a Reorganization involving only other organizations that already have a valid license to use the same Software. Section 8.05 Entire Agreement This Agreement shall constitute the entire agreement between the parties hereto with respect to the subject matter hereof. No other understandings, agreements, representations, warranties or other matters, oral or written purportedly agreed to or represented by or on behalf of Harris by any of its employees or ,agents, or contained in any sales materials or brochures, shall be deemed to bind the parties Hereto with respect to the subject matter hereof. However, the parties agree that two other agreements are being entered into concurrently with this Agreement which are in addition to any of the Third Party Software and System Software agreements detailed herein. These two other agreements are the Support and Maintenance Agreement and the Software/Implementation Services Agreement, each of which are separate agreements and are binding in their own right and upon their own terms. The terms of this Agreement may not be changed except by an amendment signed by an authorized representative of each party. No provisions in any purchase orders, or in any other documentation employed by or on behalf of the Organization in connection with this Agreement, regardless of the date of such documentation, will affect the terms of this Agreement, even if such document is accepted by Harris, with such provisions being deemed deleted. Section 8.06 /Section H /' Section and other headings in this Agreement are for reference purposes only, and are in noway intended to describe, interpret, define or limit the scope or extent of any provision hereof.' See on 8.07 Governint; Law This Agreement shall be governed by the laws of the province of Ontario and the federal laws of Canada applicable therein. This Agreement excludes that body of law applicable to choice of law, the Uniform Commercial Code and the United Nations Convention on -17- r' r a' Contracts for the International Sale of Goods (UNCCISG), and any legislation implementing such Convention, if otherwise applicable. Section 8.08 Trial by Jury f' Organization and Harris hereby waive, to the fullest extent permitted by applicable law, the right to trial by jury in any action, proceeding or corulterclaim filed by any party, whether in contract, tort or otherwise, relating directly or indirectly to this Agreement or any acts or omissions of Harris in connection therewith or contemplated thereby. Section 8.09 Invaliditv The invalidity or unenforceability of any provision or covenant contained in this Agreement shall not affect the validity or enforceability, of any other provision or covenant herein contained and any such invalid provision or covenant shall be deemed modified to the extent necessary in order to render such provision valid and enforceable; if such provision may not be so saved, it shall be severed and the remainder,1of this Agreement shall remain in full force and effect. Section 8.10 Waiver No waiver of any breach of any provision of this Agreement shall constitute a waiver of any prior, concurrent, or subsequent breach of the same or any other provisions hereof, and no waiver shall be effective unless made ifi writing and signed by an authorized representative of the waiving party. Section 8.11 Counterparts r This Agreement'inay be executed in counterparts (whether by facsimile signature, in an email PDF or otherwise), each of which when so executed shall constitute an original and all of which together shall constitute one and the same instrument. Section 8.12 F'urther,Assurances The parties shall do all such things and provide all such reasonable assurances as may be required to consummate the transactions contemplated hereby, and each party shall provide such further documents or instruments required by any other party as may be reasonably necessary or desirable to effect the purposes of this Agreement and carry out its provisions. Additionally:,,the Organization agrees that it may be listed as a being a `customer' of Harris when Harris responds to other customer requests or potential customer requests (including all third party requests for proposals) which may include data such as the name and size of Organization, the voe of receipts generated by Organization, and other generic information about Organizlumation which may include published contact information. n 8.13 Allocation of Risk Organization acknowledges that the limited warranties, disclaimers and limitations of liability contained in this Agreement are fundamental elements of the basis of -18- bargain between Organization and Harris and set forth an allocation of risk reflected and payments due hereunder.Relationship The parties are and shall at all times remain, independent contractors in the performance of this Agreement and nothing herein shall be deemed to create a joint venture, partnership or agency relationship between the parties. Neither party will have therpower to bind the other party or to contract in the name of or create any liability against the other party in any way for any purpose. Neither party will be responsible for the acts or defaults`'of the other party or of those for whom the other party is in law responsible. ` Section 8.14 U.S. Government End -Users The Software (i) was developed exclusively at private expense; (ii) is a trade secret of Harris for the purposes of the Freedom of lnformation/Act; (iii) is "commercial computer software" subject to limited utilization (Restricted Rights); and (iv) including all copies of the Software, in all respects is and shall remain proprietary to Harris or its licensors. Use, duplication or disclosure by the U.S. Government or any person or entity acting on its behalf is subject to restrictions for software developed exclusively at private expense as set forth in: (i) for the DoD, the Rights in Teel-mical Data and Computer Software clause at DF'ARS 252.227-7013 and/or 252.227.7014 or any successor clause, and/(ii) for all government agencies, the Commercial Computer Software — Restricted Rights clause at FAR. 52.227-19 or any successor clause. The U.S. Government must refrain from changing or removing any insignia or lettering from the Software or from producing copies of the Software and manuals (except one copy of the Software for backup purposes). Use of the Software shall be limited to the facility for which it was acquired. All other U.S. Government personnel using the Software are hereby on notice that use of the Software is subject to restrictions that are the same as, or similar to, those specified above. The manufacturer/owner is Harris Computer Corporation, 1 Antares Drive, Suite 200, Ottawa, ON K2E 8C4. / Section 8.15 Ecluitabl Organization acknowledges and agrees that it would be difficult to compute the monetary loss to Harris arising from a breach or threatened breach of this Agreement and that, accordingly, Harris will be entitled to specific perfonnance, injunctive or other equitable relief in addition to, or instead of monetary damages in the event of a breach or threatened breach of this Agreement by Organization. Section 8.16 Zielating The parties confirm that it is their wish that this Agreement as well as all other documentsto this Agreement, including notices, be drawn up in English only. Les parties aux presentes confrnnent que c'est leur volonte que la presente convention de meme que tons lc�/documents, y compris les avis, s'y rattachant, soient rediges en Anglais seulernent. -20- Section 8.17 Force Majeure Section 8.18 Survival The following sections and articles shall survive the termination or expiration of this Agreement: Sections 1.01, 1.02. 2.03, 2.04, 2.05, 2.06„ 3.02, 3.03, 3.0,4, Article IV, V, Article VI, Section 7.02, Article VIII and any other provisions which are required to ensure that the parties fully exercise their rights and obligations hereunder. A,. f, IN WITNESS WHEREOF, the parties have caused the Agreement to be by and through their authorized officers. CONSULTANT, N. HARRIS COMPUTER CORPORATION (HARRIS) By: c-pi:xn name ITS: (circle one) Chairman/President/Vice President AND By. print name ITS: (circle one) Secretary/Chief Financial a municipal corporation cG� cZ-J: Chief Financial Officer REVIEWED AND APPROVED: City Manager APPROVED AS --DO- FORM: ttorney hKC� Rkq'Wt) -22- Schedule "A" Description of Software Covered Programs - iNovah Software - 750,000 Annual Receipts 1. JDE GL Export 2. RPS Payment Import 3. Union Bank Import 4. Official Payments Import 5. Cununins Cash Manager Import 6. CIS Infinity Real Time Integration 7. JDE GL & Activity Validation Integration 8. JDE Billing Real Time Integration 9. Accela Real Time Integration 10. RecTrac Real Time Integration 11. Invoice Cloud Credit Card Integration 12. Image Cash Letter Module — Union Bank Required Programs (provided by Organization) Micros Requirements Windows Server 2012 R2 .Net framework 4.6 Internet Information Services (IIS SQL Server Express 2014 oft Windows Application Server Component Required Hardware (provided by Organization) ication Database Server Microsoft SQL Server Operating System Requirements SQL Server 2014 running on Windows Server 2012 R2 SQL Server Reporting Services (Corresponds to the version and edition of SQUS 41 installed.)'' Component - R eco,e mmended Processor and CPU (Core) AMD or Intel, 6 Core Processor, 2.4GHz 10MB Cache d Memory 124 GB , ��" Storage 2x100 GB 15k SAS RAID RAID 1 F� iNovah2 Workstation Requirements Software Requirements Windows S.1 or Windows 10 r ,NET Framework 4.6 r . Internet Explorer 11 Hardware and OLE for Retail410S (OPOS) drivers Hardware Requirements The following table identifies the minimal configuration necessary to operate the iNovah Cashier Module. / - Component Recommended Processor`s Intel i5 or AMD Equivalent Processor, 3.6Ghz 6MB Memory 4 GB Storage 40GB Ultra ATA/100 720ORPM Hard Drive Peripheral Monitor, keyboard and mouse Schedule "B" License Fees and Payment Schedule -M d U CS-,-,,- iNovah Enterprise License Up to 750,000 Annual Receipts, Unlimited Users, $23,01000 Urlimited Workstations` Y t. iNovah License Discount i'x3(120,000) Interface Module(s) — Real Time .r CIS Infinity Real Time Interface �'$10,000 JDE Billing Real Time Interface}' $20,000 JDE GL Validation Real Time Validation,for $10,000 manually entered GL codes` Accela Real Time Interface $15,000 RecTrac Real Time Interface fF: $10,000 Credit Card Interface (Invo,i'ce Cloud) $20,000 Additional Modules f JDE GL Export :' $10,000 RPS Payment Import $10,000 Union Bank Import (Lockbox) $10,000 ,' Image Cash Letter Module (Import) $10,000 FY OCffrcral Payments Import $5,000 f° s P' ' Cummins Cash Manager Import $10,000 Multi -interface discount $(56,000) TOTAL LICENSE COSTS $194,000 Payment Schedule M es-tonei es�ription v Final Contract Executed $97,000 50% of Total Licenses Fees Installation of Base Novah product in test environment $97,000 50% of Total Licenses Fees Total $194,000 100% of Total�Lieense Fees Fn Schedule "C" Third Party Software Licenses and Third Party Software Terms No Third Party Software is being provided to Organization. Schedule "D" System Software No System Software is being provided to Organization. ATTACHMENT #4 SOFTWARE CONTRACT SERVICES SERVICE: Enterprise Cashiering Software SERVICE DESCRIPTION: Purchase of enterprise cashiering software, along with the necessary implementation services to replace current cashiering system. VENDOR: System Innovators, iNovah Cashiering Software OVERALL RANKING: 1 SUBJECT MATTER EXPERTS/RATERS: 1. Treasury Manager, 2. Fiscal Services Manager, 3. Account Technician Supervisor, 4. Senior Info Technology Analyst, 5. Info Technology Analyst II I. MINIMUM QUALIFICATIONS REVIEW Written Proposal Score: 330 Total Weiahted Maximum Criteria Score Score Clarity 45 45 Functional Requirements 70 75 Experience & Qualifications 58 60 Compatibility 42 45 Acceptance of Terms 28 30 Price 45 45 Implementation & Support 42 45 Total II. DUE DILIGENCE REVIEW • Interview Ranking: 1 • Vendor Demonstration Ranking: 1 C-f, _ • Staffing — Excellent _ • Experience — Excellent • Qualifications — Excellent • Implementation - Excellent • In use by the cities of Anaheim; Santa Ana; Peoria, AZ; Kansas City, MO; and Henderson, NV. System Innovators - Pricing • Total 5 year software and maintenance is $697,014.47 Item 19. - 80 xB -426- SOFTWARE CONTRACT SERVICES SERVICE: Vendor #2 SERVICE DESCRIPTION: Purchase of enterprise cashiering software, along with the necessary implementation services to replace current cashiering system. NW 107-;N:x OVERALL RANKING: 2 SUBJECT MATTER EXPERTS/RATERS: 1. Treasury Manager, 2. Fiscal Services Manager, 3. Account Technician Supervisor, 4. Senior Info Technology Analyst, 5. Info Technology Analyst II I. MINIMUM QUALIFICATIONS REVIEW • Written Proposal Score: 281 Total Weiahted Maximum Criteria Score Score Clarity 39 45 Functional Requirements 65 75 Experience & Qualifications 52 60 Compatibility 36 45 Acceptance of Terms 26 30 Price 27 45 Implementation & Support 36 45 Total II. DUE DILIGENCE REVIEW • Interview Ranking: 2 • Vendor Demonstration Ranking: 2 • Staffing — Above Average • Experience — Excellent • Qualifications — Above Average • Implementation - Average • In use by the City & County of San Francisco; San Diego County; Tucson, AZ; Tallahassee, FL system innovators — Pricing • Total 5 year software and maintenance is $1,226,255 xB -427- Item 19. - 81 Exhibit 1 Annual Support and Maintenance Fee Year 1 Support and Maintenance Fees: $38,800.00 (includes 16 hours of dedicated after hours support at no additional charge) Year 2 Support and Maintenance Fees: $39,964.00 Year 3 Support and Maintenance Fees: $41,162.92 Year 4 Support and Maintenance Fees: $42,397.81 Year 5 Support and Maintenance Fees: $43,669.74 IECEM FROM AS PUkJC %2kn K. COUNCIL MEETW �J OF /'�;k i Y -,-f o / Z CITY CLERK OFF .� _ -7", R09M ESTANOW. CITY CLF.P --9