R14-007 1 RESOLUTION NO. R14 -007
2
3 A RESOLUTION OF THE CITY OF BOYNTON BEACH,
4 FLORIDA, APPROVING THE AWARD OF RFP #051 -2825-
5 13/TWH FOR "INTERACTIVE VOICE RESPONSE SYSTEM" TO
6 SELECTRON TECHNOLOGIES, INC., OF PORTLAND,
7 OREGON, FOR HOSTED SERVICES FOR AN INTERACTIVE
8 VOICE RESPONSE SYSTEM WITH WEB INTERFACE FOR AN
9 AMOUNT NOT -TO- EXCEED $300,000; AUTHORIZING THE
10 CITY MANAGER TO EXECUTE A CONTRACT AND RELATED
11 DOCUMENTS; AND PROVIDING AN EFFECTIVE DATE
12
13 WHEREAS, on July 24, 2013, Procurement Services received and opened two (2)
14 proposals and one "no bid" in response to the Request for Proposal for Interactive Voice
15 Response (IVR) System, RFP, #051- 2825 -13 /TWH; and
16 WHEREAS, an Evaluation Committee with representatives from the IT, Utilities,
17 Customer Service and Building Departments carefully reviewed the two (2) proposals and
18 Procurement Services requested references on the two proposing companies; and
19 WHEREAS, the City Commission, upon recommendation of staff, deems it to be
20 in the best interests of the citizens and residents of the City of Boynton Beach to award
21 this RFP ( #051- 2825 -13 /TWH) for Interactive Voice Response System to Selectron
22 Technologies, Inc., of Portland, Oregon in an amount not—to-exceed $300,000 and to
23 authorize the City Manager to execute a contract and related documents between the City
24 of Boynton Beach and Selectron Technologies, Inc.
25 NOW, THEREFORE, BE IT RESOLVED BY THE CITY COMMISSION
26 OF THE CITY OF BOYNTON BEACH, FLORIDA, THAT:
27 Section 1. The foregoing "Whereas" clauses are hereby ratified and confirmed as
28 being true and correct and are hereby made a specific part of this Resolution upon adoption
29 hereof.
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1 I Section 2. The City Commission of the City of Boynton Beach, Florida, upon
2 recommendation of staff, hereby approves the award of RFP ( #051- 2825- 13 /TWH) for
3 Interactive Voice Response System to Selectron Technologies, Inc., of Portland, Oregon in
4 an amount not —to- exceed $300,000 and to authorize the City Manager to execute a
5 contract and related documents between the City of Boynton Beach and Selectron
6 Technologies, Inc, a copy of which is attached hereto as Exhibit "A ".
7 Section 3. That this Resolution shall become effective immediately.
8 PASSED AND ADOPTED THIS 7th day of January, 2014.
9
10 CITY OF BOYNTON BEACH, FLORIDA
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12 n C )� ea �2 -
13 or — Je -Tayl
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15 L `•
1 6 Vice ayor — Woo. e .. .
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19 ` oner — D. id . erker
20
21
22 C l mmiss l er — ichael M. Fitz.. t
23
24 $
25 Co y missioner — Joe Casello
26 ATTEST:
27
28
29 S* / //.
30 Jane . Prainito, MMC
31 y Clerk
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36 rpxr t Seal)
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R i -I -oo7
VENDOR CONTRACT FOR AN
"INTERACTIVE VOICE RESPONSE (IVR) SYSTEM"
THIS CONTRACT is entered into between the City of Boynton Beach, hereinafter
referred to as the City ", and SELECTRON TECHNOLOGIES, INC., of Portland, OR
hereinafter referred to as "the Vendor ", in consideration of the mutual benefits, terms,
and conditions hereinafter specified
1 PROJECT DESIGNATION The Vendor is retained by the City to provide
Hosting /Management and maintenance of an Interactive Voice Response System in
connection with the project designated.
2 SCOPE OF SERVICES. Vendor agrees to perform the services, identified on Exhibit
"A" attached hereto and incorporated herein by reference, including the provision of
all labor, materials, equipment and supplies and to perform all the work as provided
in the
"Request for Proposal for Interactive Voice Response (IVR) System"
RFP No 051-2825-13/TWH
No modifications will be made to the original scope of work without the written
approval of the City Manager or her designee
3. TIME FOR PERFORMANCE. Work under this Contract shall commence upon the
giving of written notice by the City to the Vendor to proceed. Vendor shall perform all
services and provide all work product required pursuant to this Contract by 180
calendar days from the date written notice is given to proceed, unless an extension
of such time is granted in writing by the City
4 TERM This Contract shall be for a period of five (5) years commencing on the date
the Contract is executed by the City.
5. PAYMENT. The Vendor shall be paid by the Provider /City for completed work and
for services rendered under this Contract as follows:
a The total contract price not too exceed $300,000.00, shall be the maximum total
amount of payment to vendor for services provided under this Contract for the entire
term of the Contract
b Payment for the work provided by Vendor shall be made promptly on all invoices
submitted to the City properly, provided that the total amount of payment to Vendor
shall not exceed the total contract price without express written modification of the
Contract signed by the City Manager or his designee
c The Vendor may submit invoices to the City in accordance with Vendors' proposal
for RFP No. 051 - 2825- 13/TWH for partial payment during the progress of the work
on the project completed to date Such invoices will be reviewed by the City, and
upon approval thereof, payment will be made to the Vendor in the amount approved.
d Final payment of any balance due the Vendor of the total contract price earned will
be made promptly upon its ascertainment and verification by the City after the
completion of the work under this Contract and its acceptance by the City
e Payment as provided in this section by the City shall be full compensation for work
performed, services rendered and for all materials, supplies, equipment and
incidentals necessary to complete the work
f. The Vendor's records and accounts pertaining to this Contract are to be kept
available for inspection by representatives of the City and State for a period of three
(3) years after the termination of the Contract Copies shall be made available upon
request
6. OWNERSHIP AND USE OF DOCUMENTS. All documents, drawings, specifications
and other materials produced by the Vendor in connection with the services rendered
under this Contract shall be the property of the City whether the project for which
they are made is executed or not. The Vendor shall be permitted to retain copies,
including reproducible copies, of drawings and specifications for information,
reference and use in connection with Vendor's endeavors
7 COMPLIANCE WITH LAWS. Vendor shall, in performing the services contemplated
by this Contract, faithfully observe and comply with all federal, state and local laws,
ordinances and regulations that are applicable to the services to be rendered under
this Contract
8 INDEMNIFICATION. Vendor shall indemnify, defend and hold harmless the City, its
offices, agents and employees, from and against any and all claims, losses or
liability, or any portion thereof, including attorneys' fees and costs, arising from injury
or death to persons, including injuries, sickness, disease or death to Vendor's own
employees, or damage to property occasioned by a negligent act, omission or failure
of the Vendor
9 INSURANCE. The Vendor shall secure and maintain in force throughout the
duration of this contract professional liability insurance in the amount of $1,000,000
per occurrence to $2 million aggregate with defense costs in addition to limits
Said professional liability policy shall name the City of Boynton Beach as an
additional named insured and shall include a provision prohibiting cancellation of
said policy except upon thirty (30) days prior written notice to the City Certificates of
coverage as required by this section shall be delivered to the City within fifteen (15)
days of execution of this Contract
10. INDEPENDENT CONTRACTOR The Vendor and the City agree that the Vendor is
an independent contractor with respect to the services provided pursuant to this
Contract Nothing in this Contract shall be considered to create the relationship of
employer and employee between the parties hereto Neither Vendor nor any
employee of Vendor shall be entitled to any benefits accorded City employees by
virtue of the services provided under this Contract The City shall not be responsible
for withholding or otherwise deducting federal income tax or social security or for
contributing to the state industrial insurance program, otherwise assuming the duties
of an employer with respect to Vendor, or any employee of Vendor
11 COVENANT AGAINST CONTINGENT FEES. The Vendor warrants that he has not
employed or retained any company or person, other than a bona fide employee
working solely for the Vendor, to solicit or secure this contract, and that he has not
paid or agreed to pay any company or person, other than a bona fide employee
working solely for the Vendor, any fee, commission, percentage, brokerage fee, gifts,
or any other consideration contingent upon or resulting from the award or making of
this contract
For breach or violation of this warranty, the City shall have the right to annul this
contract without liability or, in its discretion to deduct from the contract price or
consideration, or otherwise recover, the full amount of such fee, commission,
percentage, brokerage fee, gift, or contingent fee.
12 DISCRIMINATION PROHIBITED. The Vendor, with regard to the work performed by
it under this Contract, will not discriminate on the grounds of race, color, national
origin, religion, creed, age, sex or the presence of any physical or sensory handicap
in the selection and retention of employees or procurement of materials or supplies.
13 ASSIGNMENT The Vendor shall not sublet or assign any of the services covered
by this Contract without the express written consent of the City
14 NON - WAIVER Waiver by the City of any provision of this Contract or any time
limitation provided for in this Contract shall not constitute a waiver of any other
provision
15 TERMINATION
The City reserves the right to terminate this Contract at any time by giving ten (10)
days written notice to the Vendor
In the event of the, death of a member, partner or officer of the Vendor, or any of its
supervisory personnel assigned to the project, the surviving members of the Vendor
hereby agree to complete the work under the terms of this Contract, if requested to
do so by the City This section shall not be a bar to renegotiations of this Contract
between surviving members of the Vendor and the City, if the City so chooses.
16 DISPUTES. Any disputes that arise between the parties with respect to the
performance of this Contract, which cannot be resolved through negotiations, shall
be submitted to a court of competent jurisdiction in Palm Beach County, Florida
This Contract shall be construed under Florida Law
17 NOTICES
Notices to the City of Boynton Beach shall be sent to the following address:
City of Boynton Beach
P O Box 310
Boynton Beach, FL 33425 -0310
Attn Lori LaVerriere, City Manager
Notices to Vendor shall be sent to the following address.
Selectron Technologies, Inc
7405 SW Tech Center Drive, Suite 410
Portland, OR 97223
Attn: Todd Johnston
18 INTEGRATED CONTRACT. This Contract, together with attachments or addenda,
(Including Exhibit "A" — SCOPE OF SERVICES and Exhibit "B" — MASTER
SERVICES AND HOSTING AGREEMENT) represents the entire and integrated
Contract between the City and the Vendor and supersedes all prior negotiations,
representations, or Contracts written or oral This Contract may be amended only by
written instrument signed by both City and Vendor
18 1 This contract shall be governed by and construed in accordance with the
laws of the State of Florida, U S.A , without reference to its conflicts of
law provisions
18.2 In the event of a conflict between the contract and the exhibits, the
contract provision will followed.
18 3 Any dispute regarding this contract must be brought in State or Federal
Court in the Palm Beach County, State of Florida, U S.A
19 PUBLIC RECORDS
The City of Boynton Beach is a public agency subject to Chapter 119, Florida
Statutes The contractor shall comply with Florida's Public Records Law. Effective
July 1, 2013, Section 119.0701, Fla. Stat., the contractor shall:
19 1 Keep and maintain public records that ordinarily and necessarily would be
required by the City in order to perform the service,
19 2 Provide the public with access to such public records on the same terms
and conditions that the City would provide the records and at a cost that
does not exceed that provided in chapter 119, Fla Stat , or as otherwise
provided by law;
19 3. Ensure that public records that are exempt or that are confidential and
exempt from public record requirements are not disclosed except as
authorized by law, and
19 4 Meet all requirements for retaining public records and transfer to the City,
at no cost, all public records in possession of the contractor upon
termination of the contract and destroy any duplicate public records that
are exempt or confidential and exempt All records stored electronically
must be provided to the City in a format that is compatible with the
information technology of the agency
Failure of the contractor to comply with the provisions set forth in this General
Condition shall constitute a Default and Breach of the Agreement with the City.
DATED this day of , 20 .
CITY OF BOYNTON BEACH
City Manager Vendor
Attest/Authenticated:
Title
(Corporate Seal)
City Clerk
Approved as to Form Attest /Authenticated:
Office of the City Attorney Secretary
EXHIBIT "A"
SCOPE OF SERVICES
INTERACTIVE VOICE RESPONSE (IVR) SYSTEM
RFP No.: 051 - 2825- 13/TWH
SCOPE OF WORK:
Customer Relations Division Background
The Customer Relations Division functions as a responsible steward of the City of Boynton
Beach Utility Department The Division bills approximately 35,000 residents and businesses for
utility services (water, sewer, storm water, reuse and refuse) A business office with 10
customer service representatives manages customer billing and collection. The system will
interface and exchange data with SunGard's "hosted" CIS ASP system and complete a variety
of transactions without staff intervention 24 hours per day, 7 days per week This system will be
utilized to meet the Customer Relations mission of providing exceptional customer service
Customers in today's 21 century are requesting /demanding this information as this is the
expected technology An IVR system will provide the following functionalities.
Customers must at a minimum be able to
• Retrieve the current balance owed
• Retrieve the last billing date and amount
• Retrieve the last payment date and amount
• Retrieve the next scheduled billing date
• Access Transaction Logging
• Access a Professional Voice Recording to navigate the IVR system
Customers also may
• Request Payment History of Account status detail, to be delivered by fax or e-mail (if E-
mail address is on file in the account)
• Make payments with debit cards, credit cards or e- checks
All services must be available in English, Spanish and Creole City will determine the final
languages to be used with the awarded vendor
The system must also have the capability to perform automated outbound communication in
both text /e -mail or automated voice to include
• Send electronic bills (text/e -mail only)
• Send past due notification
• Send delinquency notification
1
Customer Relations Division Statement Of Needs
The City desires to maintain a high quality of service while reducing demands on staffing,
improving customer service and increasing revenue collection. With an IVR System, the most
directly affected programs will be ACD Telephones, Payment Processing and Collections. The
IVR System will enhance the ability to automatically select and contact delinquent customers by
telephone or email, a courtesy extended to our customers that is currently a manual operation
Over the past five (5) years, the Division has seen steady growth in some activities and services
offered We accept credit/debit cards and changed office hours to a 4 -day work week. Some
indicators over the last five (5) years that have increased over previous years -
Shut off for Non -pay accounts 40 6%
Cashier Walk In Payments 6.0%
Customer Service Transactions'
ACD Telephone Calls Received 21 0%
Abandon Call 190.0%
Call Average Handle Time 2 0%
Customer Relations Division Specific Requirements:
It is required that the voice system
1 Provide general information about the Customer Relations Division, including business
hours, locations and options for making payments along with any special notices.
2 Provide information about after -hours services and information in regard to after -hours
fees and specific requirements.
3 Provide customers the ability to inquire on general account information, including
account balance, due date, past due amount, final notice date, last payment received
amount and date
4. Allow the customer the ability to pay their bill using a credit or debit card (Visa,
MasterCard or American Express)
5 Allow the customer the ability to stop service.
6 Allow the customer to update contact information including, cell phone and home phone
7. Schedule and initiate outbound calls to customers notifying them of an overdue account
and schedule cut -off dates. The system gives the customer the option of making a
payment during the notification call
8 Support multiple calls or lines at one time Provide information on the recommended
number of phone Tines /simultaneous callers your proposed IVR system can support.
9 Allow caller to exit at anytime to talk with a customer service representative. Explain how
the proposed IVR system prevents callers from being hung up in a "loop" (unable to
escape from routine).
2
It is requested that an option for web - access include the above activities and
10 Allow customer the ability to update email contact information
OVERALL SYSTEM REQUIREMENTS
It is required that the IVR system
• Provides touch -tone telephone responses
• Includes a warranty and long -term maintenance contracts for five (5) year term
• Allows on line access to customer information.
Explanation of System Capabilities
It is required that Proposers submit details on the system capabilities by responding to each of
the following
Experience with database information vendor
1 Explain the integration with SunGard H T E.
2 Described your relationship and work experience with SunGard H T.E
3 Is your company a "Preferred " or "Non- Preferred" SunGard Public Sector Vendor?
System
4 Explain the general architecture of the proposed system. Provide specifications on the
hardware components that comprise the IVR system.
5 Define the operating system requirements Define the scalability of the proposed system
Define the redundancy and failover built into the system.
6 Explain your hosting services and the options available. It is desired that the contractor
host and maintain the IVR system
Customer experience
7 Explain how callers are directed through a menu of choices What is done to keep these
options brief and concise for callers?
8 Explain the expected amount of time a caller will be on the line for each of the requested
functions
9 Explain how the system prevents a caller from being hung in a "loop ", unable to exit from
a menu or routine. What are the time -out options'?
3
10 Explain the multi - lingual capabilities of the system
11 Describe security options available to ensure that customers are hearing information for
their own correct account, as well as to ensure that callers cannot randomly access
other customers' account information
City experience
12 Explain how the general information announcement about the Customer Relations
Division can be updated by City staff.
13 Explain how the system interfaces with a credit /debit card processor to authorize
electronic payments.
14 Explain how funds and payment files are received by the City of Boynton Beach
15 Explain how the system supports delinquent notifications sent as email or a text
message
16 Explain the reporting capabilities and options of the system. Is the caller ID, date and
time captured? Provide samples of the reports available within the system What
statistical usage reports are available?
17 Explain how modifications to call flows and announcements are made What role will
City staff play in this process?
18 Explain how the system will be maintained and supported What role will City staff play?
19 Describe how the proposed system handles call transfer routines during normal
business hours and outside normal business hours
20 Explain how the proposed system's interface will be made to the City's PBX and ACD
systems
21 Explain how the IVR System will interface with the City of Boynton Beach's existing
SunGard H T E System
System Implementation and Operating Requirements
It is required that -
1 The Proposer provides a comprehensive implementation plan to include the following
• Project Timeline with key milestones
• Resource allocation plan (City and Proposer)
• Installation /Setup Plan
• Training Plan
• Testing /Acceptance Plan
4
2 The proposed system be compatible with and interface with the City's "hosted" SunGard
system (Version 8)
3 The proposed system can be offered as hosted or non - hosted The submitted Proposal
must distinguish the differences, to include but not limited to implementation, services,
pricing.
4 It is preferred that the phone callout portion be a part of the IVR system or outsourced to
handle volume or demand.
5. The proposed system meets the following system operating requirements
a. Response Time
The City will require that system applications operate within a response time limit of less
than 3 seconds per on -line transaction Response time is defined as the time elapsed
between user execution of the transaction and the appearance of requested data.
Proposers may be required to demonstrate system performance under normal City
operating conditions Proposers will provide response time expectations and
benchmarks from similar customer configurations
b. Performance and Acceptance Period
The City will withhold 15% of the contract amount as final payment until final acceptance
of the system in the live environment Final acceptance will be determined by the
completion of a ninety (90) day testing period in the live environment and the completion
of staff training.
During the ninety (90) day period, the system will be tested for functional requirements,
response time, uptime and performance Any deficiencies will be addressed by the
awarded vendor during this time period At any time during the ninety (90) day period,
the City may sign off on the final acceptance and release the final payment
c. Security
Proposed systems shall provide necessary security features to maintain a controlled
access environment Security level features are needed to control access privileges
(view, edit, add, delete) by user. Proposers are to define all system protection
capabilities used to support a fully secure system.
d. Backup and Restore
Proposed systems must provide for the complete backup and recovery of data
Proposers shall specify procedures for the backup and recovery of all files related to the
system Proposers will describe system integrity features used to present data loss or
corruption from unforeseen system failures and restarts. Procedures for logging and
rolling back transactions must be included Proposers are required to define all system
procedures necessary for a completely recoverable system
5
e. Documentation
The Proposer shall provide full systems documentation. Documentation is to include a
detailed Users Guide, tool for Customer Service Representative, Systems Administrator
Guide and other documents needed to operate and maintain the application. The
Proposer shall give the City the right to make a sufficient number of copies of all
documentation for its own internal use
f. Maintenance
It is required that the Proposer provide a support services contract for the proposed
system Proposers are to identify the options, coverage levels and costs available under
a service Contract. The Proposers will be responsible for correcting all errors in their
software in an acceptable manner and timeframe. Proposers will define how such
corrections are made and in what timeframe Proposers will quote annual service
support costs per year for a five year time period
It is required that the Proposer supply the source code of all application software
Proposers are to indicate if the source code is provided with the application If the
Proposer does not provide the source code, the Proposer will be required to establish an
escrow account to hold all source codes.
In event the Proposer sells their business, merges or becomes insolvent the City will
have the right of acquiring the source code at no additional cost. The Proposer will be
responsible for upgrading the escrowed source code with new software releases
g. System Upgrades / New Releases
It is required to ensure that updates do not compromise the integration with H T E and
H T E updates will not compromise the IVR software Proposer must demonstrate their
ability to work with a hosted H T E System to address this issue
It is required that the Proposers explain their approach to enhancing the software and
what types of modifications will be included in upcoming released The Proposer will
notify the City in advance of software releases that significantly affect the hardware
and /or software required to operate the new release. The Proposer will continue to
support previous releases of the software for a minimum of two years after a release
upgrade
6
EXHIBIT "B'
Selectron
TECHNOLOGIES. I N C
Master Services and Hosting Agreement
This Master Services and Hosting Agreement (this "Agreement ") by and between Selectron Technologies, Inc, an Oregon
corporation having a principal place of business at 7405 SW Tech Center Drive Suite 140, Portland, OR 97223, and its
successors and assigns ( "Licensor"), and ( "Customer").
Recitals
Whereas, as between Licensor and Customer, Licensor is the owner of all rights, titles, and interest in and to certain
software and materials, identified more particularly in this Agreement as the "Licensed Software;" and
Whereas, Licensor wishes to grant to Customer, and Customer desires to obtain from Licensor, certain rights to access and
use, and to permit authorized Customer employees to access and use the Licensed Software through Licensor's application
hosting service, as more particularly described below and in accordance with the terms and conditions of this Agreement,
Now, Therefore, in consideration of the mutual promises and covenants contained herein, the parties agree to the following
terms and conditions, which set forth the rights, duties and obligations of the parties:
Agreement
1. Definitions 1.6 "Server Program" shall mean the object
code form of those portions of the Licensed Software that are
For purposes of this Agreement, the following terms shall have both designed to be installed and used on a server, and are
the following meanings. Any capitalized terms used in this expressly designated as "Server Program(s)" in Exhibit A.
Agreement that are not defined in this Section 1 shall have the
meaning given to them elsewhere in this Agreement. 1.7 "Service" shall mean the service by which
1.1 "Derivative Work shall mean a new or software products and services (including, without limitation,
modified work that Is based on or derived from a preexisting the Server Programs) hosted on servers controlled by Licensor
work, including, without limitation, a work that, in the absence and, as applicable, its designees, are made available through the
of a license, would infringe the copyright in such preexisting
Internet for remote use by third parties
work or that uses trade secrets or other proprietary information
with respect to such preexisting work. 1.8 Term" shall have the meaning set forth in
Section 12.1.
1.2 "Documentation" shall mean the standard
documentation for the Licensed Software, as generally provided 1.9 "Trademarks" shalt mean (a) the
by Licensor to its other customers, trademarks, trade names, and service marks used by a party,
whether registered or unregistered; (b) the respective stylistic
1.3 "Employee" shall mean a then - current marks and distinctive logotypes for such trademarks, trade
employee of Customer. names, and service marks; and (c) such other marks and
logotypes as either party may designate from time to time in
writing.
1.4 "Intellectual Property Rights" shall mean
worldwide statutory and common law rights associated with 1.10 "Updates" shall mean any modifications,
(a) patents and patent applications; (b) works of authorship, error corrections, bug fixes, new releases, or other updates of or
including copyrights, copyright applications, copyright to the Server Programs and Documentation that may be
registrations, and "moral rights "; (c) the protection of trade and provided or otherwise made available hereunder by Licensor to
industrial secrets and confidential information; (d) Trademarks Customer during the Term.
(as defined herein); and (e) divisions, continuations, renewals,
and re- issuances of any of the foregoing, now existing or
2. Grant of License; Restrictions
acquired in the future.
1.5 "Licensed Software" shall mean, 2.1 Grant of License to Use Server Programs.
collectively, (a) those Server Programs that are set forth in Subject to the terms and conditions of this Agreement and the
Exhibit A; (b) the Documentation, and (c) any Updates. timely payment of all fees hereunder, Licensor hereby grants to
1
Customer a non - exclusive, nontransferable, nonsublicensabte, 3. Deliverables and Services
limited license, during the Term, to access and use the Server
Programs as made available by Ucensor through the Service, 3.1 Delivery of Documentation. Licensor shall
solely in accordance with the Documentation and solely for provide Customer with the Documentation according to the
Customer's own internal business use. Customer may only delivery terms and conditions set forth in Exhibit A. All
access and use the Server Programs with valid customer deliveries under this Agreement, including, without limitation,
identifications) and password(s) granted to Customer by any Documentation, shall be F.O.B. Licensor's facilities.
Licensor pursuant to Section 3.2. Except as set forth in this
Section 2.1, no other right or license of any kind is granted by 3.2 Customer identification and Passwords.
Licensor to Customer hereunder with respect to the Server Licensor shall provide Customer with identification and
Programs passwords, which Customer must use to access and use the
Licensed Software and /or the Service Customer shall receive
2.2 Restrictions. Customer hereby one "Administrator identification" and one "Administrator
acknowledges and agrees that it shall not use the Service for any Password" that may be used by Customer's system
purpose other than the purpose for which Licensor has administrator or other qualified Employee, in accordance with
developed the Service, and that it shall use the licensed the Documentation, to access certain Customer account
Software and the Service in accordance with all applicable laws, Information and to obtain and issue individual "User
rules, and regulations. Customer shall not, and shall not permit Identification" and "User Passwords" for each individual
any Employee or third party to: (a) copy all or any portion of the Employee who shall be accessing the Licensed Software and /or
Licensed Software or the Service; (b) decompile, disassemble or the Service. Licensor and /or its suppliers or licensors shall
otherwise reverse engineer the Licensed Software or the control the issuance of each Administrator Identification,
Service, or any portion thereof, or determine or attempt to Administrator Password, User identification, and User
determine any source code, algorithms, methods, or techniques Password. Customer (a) hereby acknowledges that it bears sole
used or embodied in the Licensed Software or Service or any responsibility for protecting all Administrator Identifications,
portion thereof, except and only to the extent that applicable Administrator Passwords, User identifications , and User
law, notwithstanding this limitation, expressly permits such Passwords granted in connection with this Agreement; (b) shall
activity; (c) modify, translate, or create any Derivative Works not provide any such information to any third party; and (c) shall
based upon the Licensed Software or the Service; (d) distribute, remain fully responsible and liable for (and Licensor shall not be
disclose, market, rent, lease, sell, timeshare, assign, sublicense, responsible or liable for) any unauthorized use of any
pledge, or otherwise transfer the Licensed Software or the Administrator Identifications, Administrator Passwords, User
Service, in whole or in part, to any third party, or use the Identifications, or User Passwords.
Licensed Software for the commercial or other benefit of a third
party; (e) remove or alter any copyright, Trademark, or other 3.3 Hosting. During the Term, Licensor and /or
proprietary notices, legends, symbols, or labels appearing on or Its designees shall host and maintain the Server Programs and
in the Licensed Software or the Service; (f) perform, or release the Service, and provide access thereto, subject to the terms
the results of, benchmark tests or other comparisons of the and conditions of this Agreement.
Licensed Software or the Service with other software or
materials; (g) permit the Licensed Software to be used for or in 3.4 Updates, Maintenance, and Technical
connection with any facility management, service bureau, or Support. During the Term, Licensor shall provide Customer with
time - sharing purposes, services, or arrangements, or otherwise (or, with respect to Server Programs, make available to
used for processing data or other information on behalf of any Customer) Updates as they are made generally available by
third party; (h) incorporate the Licensed Software or any portion Licensor to its other customers, as well as maintenance and
thereof into any other materials, products, or services, or use technical support, in accordance with the terms and conditions
the Licensed Software for production purposes; or (i) use the set forth in Exhibit B. Any Update provided or made available by
Licensed Software for any purpose other than in accordance Licensor hereunder shall be deemed part of the Licensed
with the terms and conditions of this Agreement. In the event Software and shall be subject to the terms and conditions of this
of any violation of this Section 2.2, Licensor may terminate this Agreement.
Agreement in accordance with Section 11.2, and shall be
entitled to equitable relief in accordance with Section 12.5, 3.5 Further Customer Obligations. Customer
shall be solely responsible for accessing the Server Programs
2.3 Restrictions. Licensor hereby acknowledges and the Service, and for any and all costs and fees in connection
that the Customer Materials will contain sensitive, personally- with accessing and using the Licensed Software and /or the
identifiable information Licensor will not disclose Customer Service, including, without limitation, Internet service provider
Materials to any third -party and will maintain and use the fees, telecommunications fees, and the costs of any and all
Customer Materials only for purposes of making the Customer equipment used by Customer in connection with accessing the
Materials available to Customer. Licensor will promptly delete Licensed Software and /or the Service. Customer acknowledges
any Customer Materials that Customer requests in writing to be that Licensor shall have no obligation to assist Customer in using
deleted (except for data retention required by law).
2
or accessing the Licensed Software or the Service except as the receiving party prior to its first receipt from the disclosing
expressly set forth in this Agreement. Party. The receiving party shall be entitled to disclose the
disclosing party's Proprietary Information if required by law or a
4. Fees and Payment judicial order; provided that the receiving party first provides
prompt notice of the required disclosure to the disclosing party,
Customer shall pay to Licensor service fees ( "Service Fees ") in and complies with any protective or similar order obtained by
the amounts and according to the terms and conditions set the disclosing party limiting the required disclosure.
forth in Exhibit A.
7. Representations and Warranties; Warranty
5. Proprietary Rights Disclaimer.
As between Licensor and Customer, Licensor and /or its licensors 7.1 Mutual Representations. Each party
own and shall retain all right, title and interest, including, represents and warrants to the other party that the execution,
without limitation, all intellectual Property Rights, in and to the delivery and performance of this Agreement (a) is within its
Licensed Software and the Service and any portions thereof, corporate powers, (b) has been duly authorized by all necessary
including, without limitation, any copy or Derivative Work of the corporate action on such party's part, and (c) does not and shall
Licensed Software or Service (or any portion thereof) and any not contravene or constitute a default under, and is not and
Updates and upgrades thereto. Customer agrees to take any shall not be Inconsistent with, any judgment decree or order, or
action reasonably requested by Licensor to evidence, maintain, any contract, agreement, or other undertaking, applicable to
enforce, or defend the foregoing. Customer shall riot take any such party.
action to jeopardize, encumber, limit, or interfere in any manner
with Licensor's or its licensors' ownership of and rights with 7.2 Limited Warranty. Subject to the limitations
respect to the Licensed Software or Service, or any Derivative set forth in this Agreement, Licensor represents and warrants to
Work or Update or upgrade thereto. The Licensed Software is Customer that the Server Program, when used in accordance
licensed, not sold, and Customer shall have only those rights in with the Documentation, shall throughout the Term
and to the Licensed Software and Service and any Derivative substantially conform to the functional specifications in such
Work or Update or upgrade thereto as are expressly granted to Documentation as delivered to Customer If Customer finds
it under this Agreement. what it reasonably believes to be a failure of the Server Program
to substantially conform to the functional specifications in the
6. Proprietary Information Documentation, and provides Licensor with a written report
that describes such failure in sufficient detail to enable Licensor
During the Term of this Agreement and after the termination of to reproduce such failure, Licensor shall use commercially
this Agreement, the parties will take all steps reasonably reasonable efforts to correct or provide a workaround for such
necessary to hold the other party's Proprietary Information in failure at no additional charge to Customer. Outside the United
confidence, will not use the other party's Proprietary States, this limited warranty is only available with proof of
Information in any manner or for any purpose not expressly set purchase from an authorized non -U.S. source. EXCEPT FOR THE
forth in this Agreement, and will not disclose any such EXPRESS WARRANTY ABOVE, LICENSOR PROVIDES THE
Proprietary Information to any third party without the disclosing LICENSED SOFTWARE AND SERVER PROGRAM TO CUSTOMER
party's express prior written consent. "Proprietary Information" "AS 15" AND AS AVAILABLE." LICENSOR MAKES NO WARRANTY
includes, but is not limited to (a) the Licensed Software and the THAT ALL ERRORS, FAILURES, OR DEFECTS SHALL BE
Service (including any and all Derivative Works and Updates and CORRECTED, OR THAT ACCESS TO OR USE OF THE SERVICE OR
upgrades thereto); (b) all Administrator Identifications, SERVER PROGRAM SHALL BE UNINTERRUPTED, ERROR -FREE, OR
Administrator Passwords, User Identifications, and User SECURE. NO ORAL OR WRITTEN INFORMATION OR ADVICE
Passwords, Reports; (c) trade secrets, inventions, ideas, PROVIDED BY LICENSOR, ITS AGENTS, OR ITS EMPLOYEES, SHALL
processes, formulas, source and object codes, data, other works CREATE ANY WARRANTY OR IN ANY WAY INCREASE THE SCOPE
of authorship, know -how, improvements, discoveries, OF THE WARRANTIES EXPRESSLY PROVIDED IN THIS
developments, designs, and techniques; (d) information AGREEMENT. Except as provided in Section 3.4, this Section 7.2
regarding plans for research, development, new products, states the entire liability of Licensor and the sole and exclusive
marketing and selling, budges and unpublished financial remedy of Customer with respect to any express or implied
statements, licenses, prices and costs, suppliers and customers; warranties hereunder or otherwise in connection with this
and (e) information regarding the skills and compensation of Agreement, regardless of whether Licensor knows or has reason
employees. Nothing will be considered to be Proprietary to know of Customer's particular needs.
Information if (1) it is readily available to the public other than
by a breach of this Agreement; (2) it has been rightfully received
7.3 Exclusive Warranty THE EXPRESS
by the receiving party from a third party without confidential WARRANTY SET FORTH IN SECTION 7.2 CONSTITUTES THE ONLY
limitations; (3) it has been independently developed by the WARRANTY MADE BY LICENSOR WITH RESPECT TO THE
receiving party without reference to or use of the disclosing LICENSED SOFTWARE, THE SERVER PROGRAM, THE SERVICE,
party's Proprietary information; or (4) it was rightfully known to AND ANY OTHER SUBJECT MATTER OF THIS AGREEMENT.
3
LICENSOR MAKES NO OTHER, AND HEREBY DISCLAIMS ALL not operate or control the Internet and that Licensor shall have
OTHER, REPRESENTATIONS, WARRANTIES, OR CONDITIONS OF no responsibility or liability in connection with a breath of
ANY KIND, WHETHER EXPRESS, IMPLIED (EITHER IN FACT OR BY security or privacy regarding the Licensed Software, Server
OPERATION OF LAW), OR STATUTORY, WITH RESPECT TO THE Program, or the Service or information contained therein that is
LICENSED SOFTWARE, THE SERVER PROGRAM, THE SERVICE, OR caused by (1) viruses, worms, Trojan horses, or other undesirable
ANY OTHER SUBJECT MATTER OF THIS AGREEMENT. LICENSOR data or software; (ii) unauthorized users, e.g., hackers; or (iii)
EXPRESSLY DISCLAIMS ALL WARRANTIES OR CONDITIONS OF any other third party or activity beyond Licensor's reasonable
MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, control.
TITLE, AND NONINFRINGEMENT, AND ALL WARRANTIES THAT
MAY ARISE FROM COURSE OF DEALING, COURSE OF 8.2 Outbound Services Disclaimer. Outbound
PERFORMANCE, OR USAGE OF TRADE. LICENSOR DOES NOT services are intended to create additional methods of
WARRANT THAT ANY USE OF OR ACCESS TO THE LICENSED communication to Customer's employees who use the Licensed
SOFTWARE, THE SERVER PROGRAM, OR THE SERVICE SHALL BE Software and Server Program in support of existing processes.
ERROR -FREE OR SECURE, OR THAT OPERATION OF THE These services are not intended to replace all interaction with
LICENSED SOFTWARE, THE SERVER PROGRAM, OR THE SERVICE Customer's end users or employees. While the outbound
SHALL BE UNINTERRUPTED, AND HEREBY DISCLAIMS ANY AND services have been created with the best available tools and
ALL LIABILITY IN CONNECTION THEREWITH. CUSTOMER practices, they are dependent on infrastructure that is
ACKNOWLEDGES THAT IT HAS RELIED ON NO WARRANTIES inherently not fail - proof, including but not limited to
OTHER THAN THE EXPRESS WARRANTY IN SECTION 7.2 OF THIS infrastructure such as software, computer hardware, network
AGREEMENT. Sections 8.2 and 8.3 shall be enforceable to the services, telephone services, and e-mail Examples of situations
fullest extent allowed by applicable law. that could cause failure include but are not limited to: down
phone lines, all lines busy, equipment failure, email address
7.4 Defects Not Covered by Warranties. changes, Internet service disruptions. For this reason, while
Licensor shall have no obligations under Section 8.2 to the outbound services are valuable in providing enhanced
extent any nonconformance or failure of, or error in, the communication, they are specifically not designed to be used as
Licensed Software, Server Program, or Service Is caused by: the sole method to deliver critical messages. Customer
(a) use of any attachment, feature, hardware, software, or acknowledges that it is aware of the potential hazards
device in connection with the Licensed Software, Server associated with relying on an automated outbound service
Program, or the Service, or combination of the Licensed feature, when using the Licensed Software and Server Program,
Software, Server Program, or Service with any other materials or and Customer acknowledges and agrees that it is giving up in
service, unless the combination is performed by Licensor; advance any right to sue or make any claim against Licensor,
(b) transportation, neglect, misuse, or misapplication of the and that Customer forever releases Licensor from any and all
Licensed Software, Server Program, or the Service, or any use of liability caused by (a) any failed call attempts (including excess
the Licensed Software, Server Program, or the Service that is not of calls over and above network or system capacity), incomplete
in accordance with this Agreement and/or the Documentation; calls, or any busy -outs; (11) any failure to transmit, obtain or
(c) alteration, modification, or enhancement of the Licensed collect data from callers or for human and machine errors,
Software, Server Program, or the Service, except as may be faulty or erroneous input, inarticulate taller communication,
performed by Licensor; or (d) failure to provide a suitable use caller delays or call lengths exceeding estimated call lengths or
environment for all or any part of the Licensed Software, Server omissions, delays and losses in connection with the Services
Program, or the Service. provided hereunder; or (111) if Customer, or Customer's
employees, suffer injury or damage due to the failure of
8. Security Disclaimer outbound services to operate, even though Customer does not
know what or how extensive those injuries or damages might
8.1 Internet Security. Licensor's Licensed be, unless such Losses were directly attributed to Company's
Software is made available through the Internet and may be gross negligence or willful misconduct.
used to access and transfer information over the Internet. 9. Indemnification
Customer is solely responsible for the security and integrity of
information it transfers from the Licensed Software, if any 9.1 Indemnity Obligations of Licensor. Licensor
Licensor makes no representations or warranties to Customer shall defend any action brought against Customer to the extent
regarding (1) the security or privacy of Customer's network it is based on a third party claim that use by Customer of the
environment, or (11) any third -party technologies' or services' Licensed Software as furnished hereunder, which use is in
ability to meet Customers security and privacy needs. These accordance with the terms and conditions of this Agreement,
third -party technologies and services may include, but are not directly infringes any valid United States patent, copyright, or
limited to, operating systems, database management systems, trade secret. Licensor shall pay any liabilities, costs, damages,
web servers, and payment processing services. Customer is and expenses (including reasonable attorney's fees) finally
solely responsible for ensuring a secure environment for awarded against Customer in such action that are attributable
information It transfers from the Licensed Software, if any. to such claim, provided: (a) Customer notifies Licensor in writing
Further, Customer acknowledges and agrees that Licensor does of any such claim within three (3) days of learning of such claim;
4
(b) Licensor has sole control of the defense and all related LICENSOR OR ITS SUPPLIERS OR LICENSORS BE LIABLE FOR ANY
settlement negotiations; and (c) Customer cooperates with LOSS OF PROFITS, LOSS OF BUSINESS, LOSS OF USE OR DATA, OR
Licensor, at Licensor's expense, in defending or settling such INTERRUPTION OF BUSINESS, OR FOR INDIRECT, SPECIAL,
claim (provided that Licensor shall not enter into any settlement INCIDENTAL, CONSEQUENTIAL, EXEMPLARY, OR PUNITIVE
or other compromise that materially adversely affects Customer DAMAGES OF ANY KIND OR OTHER ECONOMIC LOSS ARISING
without Customer's written approval, not to be unreasonably FROM OR RELATING TO THIS AGREEMENT OR THE SUBJECT
withheld, delayed, or conditioned). in addition to the foregoing, MATTER HEREOF, EVEN iF LICENSOR HAS BEEN ADVISED OF THE
Customer agrees to promptly notify licensor of any known or POSSIBILITY OF SUCH DAMAGES, HOWEVER CAUSED.
suspected infringement or misappropriation of Licensor's
proprietary rights of which Customer becomes aware. Should 102 Maximum Liability. Notwithstanding
the Licensed Software, Server Program, or the Service become, anything in this Agreement to the contrary or the failure of
or be likely to become in Licensor's opinion, the subject of any essential purpose of any limited remedy or limitation of liability,
claim of infringement, Licensor may, at its option. (I) procure for Licensor's entire liability arising from or relating to this
Customer the right to continue using the potentially infringing Agreement or the subject matter hereof, under any legal theory
materials; (i1) replace or modify the potentially infringing (whether in contract, tort or otherwise), shall not exceed the
materials to make them non - infringing; or (11) terminate this amounts actually received by Licensor from Customer
Agreement and provide Customer with a refund equal to the hereunder in the twelve (12) months immediately preceding the
set -up fees paid by Customer, less an amount equal to the action that gave rise to the claim. Customer acknowledges that
depreciated portion of such fees calculated on a five (5) year the License Fees and Service Fees reflect the allocation of risk
stralght -line basis. set forth In this Agreement and that Licensor would not enter
into this Agreement without the limitations on liability set forth
9.2 Exclusions. Licensor shall have no liability in this Agreement.
for any claim based upon: (a) the use, operation, or combination
of the Licensed Software, Server Program, or the Service with 11. Term and Termination
non - Licensor programs, data, equipment, or documentation if
liability would have been avoided but for such use, operation, or 11.1 Term. The term of this Agreement (the
combination; (b) use of other than the then - current, unaltered 'Term ") shall commence on the Effective Date and continue for
version of the Licensed Software, Server Program, or Service; an Initial period of one (1) year therefrom, and shall
(c) Customer's or its agents' or Employees' activities after automatically renew for successive one (1) year periods unless
Licensor has notified Customer that Licensor believes such either party notifies the other of its intention not to renew prior
activities may result in Infringement; (d) any modifications to or to ninety (90) days before the end of the then- current term.
markings of the Licensed Software, Server Program, or the
Service that are not specifically authorized in writing by 11.2 Termination for Default. If either party
Licensor; (e) any third party software; (f) any Customer materially defaults in any of its obligations under this
Materials; or (g) Customer's breach or alleged breach of this Agreement, the non-defaulting g parry, at its option, shall have
Agreement. Customer shall pay any liabilities, costs, damages, the right to terminate this Agreement by written notice to the
and expenses (including reasonable attorney's fees) awarded other party unless, within sixty (60) calendar days after written
against Licensor in such action that are attributable to such notice of such default, the defaulting party remedies the
claim provided: (1) Licensor notifies Customer in writing of any default, or, in the case of a default which cannot with due
such claim within three (3) days of learning of such claim; diligence be cured within a period of sixty (60) calendar days,
(ii) Customer has sole control of the defense and all related the defaulting party institutes within the sixty (60-) day- period
settlement negotiations (provided that Customer shall not enter substantial steps necessary to remedy the default and
into any settlement or other compromise that materially thereafter diligently prosecutes the same to completion.
adversely affects Licensor without Licensor's written approval, Notwithstanding anything herein to the contrary, in the event
which shall not be unreasonably withheld, delayed, or Customer breaches Sections 2.2, 6 and /or 6 of this Agreement,
conditioned), and (iii) Licensor cooperates with Customer, at Licensor may immediately terminate this Agreement. Customer
Customer's expense, in defending or settling such claim. shall notify Licensor within twenty -four (24) hours of Customer's
becoming aware of any breach (other than by Licensor) of the
9.3 This Section 10 states the entire liability of terms and conditions of this Agreement, including, without
Licensor and the exclusive remedy of Customer with respect to limitation, any breach of Sections 2.2, 6 or 6.
infringement of any third -party intellectual property or other
rights, whether under theory of warranty, indemnity, or
11.3 Termination for Bankruptcy. Either party
otherwise. may terminate this Agreement If the other party (a) becomes
Insolvent; (b) fails to pay its debts or perform its obligations in
10. Limitation of Liability the ordinary course of business as they mature; (c) is declared
insolvent or admits its insolvency or inability to pay Its debts or
10.1 Limited Remedy. TO THE MAXIMUM perform its obligations as they mature; or (d) becomes the
EXTENT ALLOWED BY APPLICABLE LAW, IN NO EVENT SHALL subject of any voluntary or involuntary proceeding in
5
bankruptcy, liquidation, dissolution, receivership, attachment, to and shall not be used to interpret this Agreement. Any
or composition, or makes a general assignment for the benefit dispute regarding this Agreement must be brought in the state
of creditors, provided that, in the case of an involuntary or federal courts located in Multnomah County, Oregon, U.S.A.
proceeding, the proceeding is not dismissed with prejudice
within sixty (60) days after the institution thereof. 12.3 Construction. This Agreement has been
negotiated by the parties and their respective counsel. This
11.4 Effect of Termination. Upon the expiration Agreement shall be interpreted fairly in accordance with its
or termination of this Agreement, all rights and licenses granted terms and without any construction in favor of or against either
to Customer hereunder shall immediately and automatically party.
terminate. Within ten (10) days after any termination or
expiration of this Agreement, Customer shall, at its sole 12.4 Attorneys' Fees. If any legal action is
expense, return to Licensor (or destroy, at Licensor's sole brought relating to this Agreement or the breach hereof, the
election) all Licensed Software and Confidential Information prevailing party in any final Judgment shall be entitled to the full
(and all copies, summaries, and extracts thereof) then in the amount of all reasonable expenses, including all court costs and
possession or under the control of Customer and its current or actual attorney fees paid or incurred in good faith.
former employees. Customer shall furnish to Licensor an
affidavit signed by an officer of Customer certifying that, to the 123 Injunctive Relief. In the event that
best of its knowledge, such delivery or destruction has been Customer breaches any provision of Sections 2, 6, or 7 or any
fully effected Termination of this Agreement by either party other material provision of this Agreement, Customer
shall not act as a waiver of any breach of this Agreement and acknowledges and agrees that there can be no adequate
shall not act as a release of either party from any liability for remedy at taw to compensate Licensor for such breach, that any
breach of such party's obligations under this Agreement. such breach will allow Customer or third parties to compete
Neither party shall be liable to the other for damages of any unfairly with Licensor resutting in Irreparable harm to Licensor
kind solely as a result of terminating this Agreement in that would be difficult to measure; and, therefore, that upon
accordance with Its terms. Either party's termination of this any such breach or threat thereof, Licensor shall be entitled to
Agreement shall be without prejudice to any other right or injunctive and other appropriate equitable relief (without the
remedy that it may have at law or in equity, and shall not relieve necessity of proving actual damages or of posting a bond or
either party of breaches occurring prior to the effective date of other security), in addition to whatever remedies Licensor may
such termination. The provisions of Sections 1 ( "Definitions "), have at law, in equity, under this Agreement, or otherwise.
2 2, 2 4 ("Restrictions"), 5 ("Proprietary Rights "), 6 ("Proprietary
Information "), 7 ( "Representations and Warranties; Warranty 12.6 Waiver. The waiver by either party of a
Disclaimer "), 8 ( "Security Disclaimer"), 10 ("Indemnification "), breach of or a default under any provision of this Agreement,
11 ( "Limitation of Liability") 12 ("Term and Termination ") and shall be in writing and shall not be construed as a waiver of any
13 ( "General Provisions "), and Sections 3.4 ( "Updates, subsequent breach of or default under the same or any other
Maintenance, and Technical Support") and 4 ( "Fees and provision of this Agreement, nor shall any delay or omission on
Payment ") (with respect to amounts accrued but as -yet unpaid), the part of either party to exercise or avail itself of any right or
shall survive the expiration or any termination of this remedy that it has or may have hereunder operate as a waiver
Agreement of any right or remedy.
12. General Provisions 12.7 Severabiiity. If the application of any
provision of this Agreement to any particular facts or
12.1 Notices Any notice, request, demand or circumstances shall be held to be invalid or unenforceable, then
other communication required or permitted hereunder shall be
in writing, shall reference this Agreement, and shall be deemed (a) the validity and enforceability of such provision as applied to
any other particular facts or circumstances and the validity of
to be properly given (on the earliest of): (a) when delivered other provisions of this Agreement shall not in any way be
personally; (b) when sent by facsimile, with written affected or b impaired thereby, and such
p y (b) provision shall be
confirmation of receipt; or (c) upon receipt three (3) days after enforced to the maximum extent possible so as to effect the
having been sent by registered or certified mail, return receipt intent of the parties and reformed without further action by the
requested, postage prepaid. All notices shall be sent to the parties to the extent necessary to make such provision valid and
address set forth below (or to such other address as may be enforceable. Without limiting the generality of the foregoing,
designated by a party by giving written notice to the other party Customer agrees that Section 8.3 will remain in effect
pursuant to this Section 13.1): notwithstanding the unenforceability of any provision in
Sections 8.2 and /or 8.4.
12.2 Governing Law; Jurisdiction. This
Agreement shall be governed by and construed in accordance 12.8 independent Contractor Relationship.
with the laws of the State of Oregon, U.S.A., without reference Licensor's relationship with Customer will be that of
to its conflicts of law provisions. The United Nations Convention independent contractor, and nothing contained in this
on Contracts for the international Sale of Goods does not apply Agreement shall be deemed or construed as creating a joint
6
venture, partnership, or employer - employee relationship (b) The parties agree that, in the event that Customer is a
Customer is not an agent of Licensor and is not authorized to governmental entity, all other state and local governments
make any representation, contract, or commitment on behalf of within Customer's state may purchase a license from Licensor to
Licensor, or to bind Licensor in any way. Licensor is not an use the Licensed Software and Server Program and may
agent of Customer and is not authorized to make any purchase the Service, under the same terms and conditions as
representation, contract, or commitment on behalf of set forth In this Agreement by entering into a master services
Customer, or to bind Customer In any way. Licensor will not be and hosting agreement with the same terms and conditions as
entitled to any of the benefits that Customer may make set forth herein with Licensor
available to its employees, such as group insurance, profit
sharing, or retirement benefits. 12.12 Export Controls. The Licensed Software, Server
Program, and the Service are subject to the export control laws
12.9 Force Majeure. Except for the payment of of the United States and other countries. Customer may not
monies due hereunder, neither party shall be responsible or export or re -export the Licensed Software, Server Program, or
have any liability for any delay or failure to perform to the Service, unless Customer has first obtained Licensor's prior
extent due to unforeseen circumstances or causes beyond its written permission and the appropriate United States and
reasonable control, including, without limitation, acts of God, foreign government licenses, at Customer's sole expense.
earthquake, fire, flood, embargoes, labor disputes and strikes, Customer must otherwise comply with, and contractually
riots, war, error in the coding of electronic files, Internet or require that all of its employees comply with, all applicable
other network "brownouts" or failures, power failures, novelty export control laws and regulations in the use of the Licensed
of product manufacture or other unanticipated product Software, Server Program, and the Service. None of the
development problems, and acts of civil and military authorities, Licensed Software, and no part of the Service, may be
provided that such party gives the other party prompt written downloaded or otherwise exported or re- exported (a) into any
notice of the failure to perform and the reason therefor and country for which the United States has a trade embargo, or
uses its reasonable efforts to limit the resulting delay in its (b) to anyone on the U.S Treasury Department's list of Specially
performance and to mitigate the harm or damage caused by Designated Nationals or the U.S. Commerce Department's
such delay Denied Persons List. Customer represents and warrants that it
Is not located in, under the control of, or a national or resident
12.10 Public Announcements. Customer shall of any such country or on any such list. Customer shall defend,
cooperate with Licensor so that Licensor may issue a press indemnify and hold Licensor and all successors, assigns,
release concerning this Agreement; provided, however, Licensor affiliates, suppliers, and each of their officers, directors,
may not release any such press release without the prior employees, and agents harmless for, from, and against any and
approval of Customer (which shall not be unreasonably all claims, allegations, damages, liabilities, and costs and
withheld, delayed, or conditioned). However, without seeking expenses (including without limitation attorneys' fees and costs)
prior approval in each instance, Licensor shall have the right to arising out of Customer's violation of such export control laws
use Customer's name as a customer reference, and to use Licensor further agrees to comply with the United States
Customer's trade name on Licensor's customer lists. Foreign Corrupt Practices Act, as amended.
12.11 U.S. Government Rights. (a) The Licensed Software, 12.13 Captions and Section Headings. The
Server Program, and Service are "commercial items ", as that captions and Section and paragraph headings used in this
term is defined at 48 C.F.R. 2.101, consisting of "commercial Agreement are inserted for convenience only and shall not
computer software" and "commercial computer software affect the meaning or interpretation of this Agreement,
documentation ", as such terms are used In 48 C.F.R. 12.212 or
48 C.F.R. 227.7202, as applicable, Consistent with 48 C.F.R. 12.14 Counterparts. This Agreement may be
1.2.212 and 48 C.F.R 227.72024 through 227.7202.4, the signed in one or more counterparts, each of which will be
Licensed Software, Server Program, and Service are licensed to deemed to be an original copy of this Agreement, and, when
any U S. Government End Users (1) only as a commercial end taken together, shall be deemed to constitute one and the same
item and (11) with only those rights as are granted to all other agreement. Each party agrees that the delivery of this
end users pursuant to the terms and conditions herein. Agreement by facsimile transmission or by PDF attachment to
Manufacturer is Selectron Technologies, Inc., 7405 SW Tech an e-mail transmission will be deemed to be an original of the
Center Drive, Suite 140, Portland, Oregon 97223, USA. This Agreement so transmitted and, at the request of either party,
Section, consistent with 48 C F.R. § 12.212 and 48 C.F.R. § the other party will confirm facsimile or e-mail transmitted
227.7202 is in lieu of, and supersedes, any other Federal signatures by providing the original document.
Acquisition Regulation, Defense Federal Acquisition Regulation
Supplement, or other clause or provision that addresses United 12.15 Modification; Subsequent Terms. No
States Government rights in computer software, technical data, amendment or modification of any provision of this Agreement
or computer software documentation. shall be effective unless in writing and signed by a duly
authorized signatory of Licensor and Customer. To the extent
that the terms and conditions of the Exhibits hereto or Exhibits
7
to subsequent amendments or modifications of or to the 12.16 Entire Agreement; Amendment. This
Agreement ( "Subsequent Terms ") differ from those herein, Agreement, including the Exhibit (s) attached hereto, constitutes
those Subsequent Terms shall control the interpretation and the entire agreement between the parties concerning the
any conflict resolution thereof. The terms on any purchase subject matter hereof, and supersedes (a) all prior or
order or similar document submitted by Customer to Licensor contemporaneous representations, discussions, proposals,
will not modify the terms and conditions of this Agreement or negotiations, conditions, agreements, and communications,
have any force or effect whether oral or written, between the parties relating to the
subject matter of this Agreement, and (b) all past courses of
dealing and industry custom.
8
In Witness Whereof, the parties have caused this Agreement to be executed by duly authorized representatives of the
parties as of the Effective Date.
SELECTRON TECHNOLOGIES, INC. CUSTOMER
By: By:
Signature Signature
Name: Name:
Title: Title,
Date: Date:
Address: 7405 SW Tech Center Drive, #140 Address:
Portland, OR 97223
9
EXHIBIT A
License and Service Fees
Interest. Any amounts payable by Customer to Licensor hereunder which remain overdue for thirty (30) days or longer shall be
subject to interest equal to the lesser of one and one -half percent (1.5 %) per month and the maximum amount permitted by
taw, calculated on a daily basis.
Taxes. Ali prices set forth In this Agreement are in U.S. Dollars and are exclusive of any applicable taxes. Customer shall pay,
indemnify, and hold Licensor harmless from all import and export duties, customs fees, levies, or imposts, and all sales, use,
value added, or other fees, governmental charges, or taxes of any nature (other than U.S. taxes on Licensor's income), including
penalties and interest, and all government permit or license fees assessed upon or with respect to any products sold, leased, or
licensed to Customer and any services rendered to Customer.
10
EXHIBIT B
Maintenance and Technical Support
This Exhibit describes the software maintenance and support services that Licensor shall provide for Customer.
Unless defined otherwise herein, capitalized terms used in this Exhibit shall have the same meaning as set forth in the
Agreement.
A. "Error" means any failure of the Licensed Software or the Service, as applicable, to conform in
any material respect with the Documentation.
B. "Error Correction" means either a bug fix, patch, or other modification or addition that brings the
Licensed Software or the Service, as applicable, into material conformity with the Documentation.
C. "Priority A Error" means an Error that renders Licensed Software or the Service, as applicable,
inoperative or causes a complete failure of the Licensed Software or the Service, as applicable.
D. "Priority B Error" means an Error that substantially degrades the performance of Licensed
Software or the Service, as applicable, or materially restricts Customer's use of the Licensed Software or the
Service, as applicable.
E. "Priority C Error" means an Error that causes only a minor impact on Customer's use of Licensed
Software or the Service, as applicable.
11. Error Reporting and Resolution
A. Error Reporting. Licensor shall provide Customer with telephone customer support twenty -four
(24) hours per day, seven (7) days per week for the reporting of Priority A Errors, and telephone support during
Licensor's normal business hours for the reporting of Priority 8 and Priority C Errors, in each event excluding
Licensor holidays.
B. Licensed Software Error Resolution. Licensor shall use commercially reasonable efforts to:
(a) notify applicable Vendors of all Licensed Software Errors properly reported by Customer in accordance with
Section II(A) of this Exhibit A. (b) make available to Customer any Error Corrections that are made available by such
Vendor(s) to Licensor promptly after such Error Corrections are delivered to Licensor; and (c) update Customer
with respect to the progress of the resolution of all Licensed Software Errors.
C. Service Error Resolution. Customer shall report all Errors in the Service to Licensor in sufficient
detail, with sufficient explanation of the circumstances under which the Error occurred or is occurring, and shall
reasonably classify the Error as a Priority A, 8, or C Error. Licensor shall use commercially reasonable efforts to
correct any Error in the Service reported by Customer, in accordance with the priority level actually assigned by
Licensor to such Error, as follows:
1. Priority A Service Errors. In the event of a Priority A Error in the Service, Licensor shall,
within two (2) hours of receiving Customer's report, commence verification of the Error. Upon verification,
Licensor shall use commercially reasonable efforts to resolve the Error with an Error Correction. Licensor shall use
commercially reasonable efforts to provide a workaround for the Service Error within twenty -four (24) hours of
receiving Customer's report of such Error, and an Error Correction within forty -eight (48) hours of receiving
Customer's report. Licensor shall provide Customer with periodic reports (no Tess frequently than once every
eight (8) hours) on the status of the Service Error Correction.
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2. Priority 8 Service Errors. In the event of a Priority B Error in the Service, Licensor shall,
within six (6) hours of receiving Customer's report, commence verification of the Error. Upon verification, Licensor
shall use commercially reasonable efforts to resolve the Error with an Error Correction. Licensor shall use
commercially reasonable efforts to provide a workaround for the Service Error within forty -eight (48) hours of
receiving Customer's report of such Error, and an Error Correction within six (6) business days of receiving
Customer's report. Licensor shall provide Customer with periodic reports (no less frequently than once every
twelve (12) hours) on the status of the Service Error Correction.
3. Priority C Service Errors. In the event of a Priority C Error in the Service, Licensor shall,
within two (2) business days of receiving Customer's report, commence verification of the Error. Upon verification,
Licensor shall use commercially reasonable efforts to resolve the Error with an Error Correction. Licensor shall use
commercially reasonable efforts to provide a workaround for the Service Error within six (6) business days of
receiving Customer's report of such Error, and an Error Correction within three (3) weeks of receiving Customer's
report. Licensor shall provide Customer with periodic reports on the status of the Service Error Correction.
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EXHIBIT C
Statement of Work
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