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HomeMy WebLinkAboutIT18-118 - Original - System Innovators - iNovah Enterprise Revenue Management (ERM) System Solution - 03/06/2018 KE T r%l necords Management Document CONTRACT COVER SHEET This is to be completed by the Contract Manager prior to submission to the City Clerk's office. All portions are to be completed. If you have questions, please contact the City Clerk" ffice at 253-856-5725. Blue/Motion Sheet Attached Pink Sheet Attached Vendor Name: System Innovators Vendor Number (JDE): 172693 Contract Number (City Clerk): _..III Category: Contract Aq eement Sub-Category (if applicable): Cho�ose ar? rtern. Project Name: iNovah Enterprise Revenue Solution Contract Execution Date: TBD Termination Date: Until svcs completed Contract Manager: Somen Palit Department: IT Contract Amount: $275,116.90 Approval Authority: EJ Director ❑ Mayor E City Council Other Details: *N. Harris Computer Corporation dba System Innovators SOFTWARE LICENSE AGREEMENT THIS SOFTWARE LICENSE AGREEMENT made as of the 61h day of March, 2018 "Effective Date"). BETWEEN: SYSTEM INNOVATORS,A DIVISION OF N. HARRIS COMPUTER CORPORATION ("Harris") -and- City of Kent, WA ("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 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. - 1 - (b) "Annual Receipt Volume" means the total number of Receipts paid for by Organization for the current Annual Support Term. (c) "Annual Support Term" means the annual term of maintenance and support services as set out in the Support and Maintenance Agreement. (d) "Completion 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 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 party 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 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 Information. (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 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 Section 3.04. (m) "Site" means solely at the production environment described in Schedule "A" and at an unlimited number of non-production environments. (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 Harris 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 Software. The Subcontractors as of the Effective Date are those listed in subsection 4.4 of the 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 the third 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 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.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 1.X to 2.X. W "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 terns of this Agreement to have access to the Software. - 3 VVI - 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 The 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 Fees& Payment Schedule 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 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 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 Fees (as defined in Section 4.01) and all applicable fees under the Support and Maintenance Agreement, Harris hereby grants 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 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 files 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. (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, - 4 - 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 as such 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 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 Effective 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: (i) use the Software for any purpose other than in connection with Organization'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 except 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 open source or quasi- open source license agreement. (b) 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 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 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 - 5 - 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. (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 Organization, Organization agrees that, upon execution of the Agreement, Organization will — upon Harris's request- participate in a joint release with Harris regarding the Agreement which shall not be released prior to obtaining written approval from Organization as to the content of that joint release; and thereafter, Organization will allow Harris to use it as a reference - 6 - account for marketing purposes,including(i)allowing Harris to reference Organization on its reference account customer lists in print and on its website; (ii) providing quotes for Harris's press releases and website, subject to Organization'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". Harris 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 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 licensed to Organization by the applicable licensor listed in Schedule"A"and subject to the terms 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, 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) require 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 Harris be responsible for such Third Party Software maintenance except where the Third Party Software license may expressly state otherwise. Section 2.06 System Software (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. - 7 - (b) Harris 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 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 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, F.O.B. point of destination, provided that Organization shall pay the shipping charges, or (ii) the date on which 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 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, 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 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 the 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 System Software maintenance. Article III. REPRESENTATIONS AND WARRANTIES Section 3.01 Warranties.Harris makes the following representations and warranties concerning the Software provided under this Agreement: (a) Virus Warranty. Harris warrants that at the time of delivery of the Software, the Software does not contain any malicious code, program, or other internal component (e.g., computer virus, computer worm, computer time bomb, or similar component)that could damage, destroy, or alter any computer program, firmware, or hardware or which could in any manner, reveal, damage, destroy, or alter any data or other information accessed through or processed by - 8 - the software product(s) or other products in any manner. Harris shall promptlyadvise the Organization, in writing, upon reasonable suspicion or actual knowledge that the software product(s) or other products may result in the harm described above. (b) Compatibility and Maintenance Warranty. Harris represents and warrants that, at the time of Completion of Service, the Software is compatible with Organization's computing environment, including without limitation, database software, network, and platforms, including the interface modules identified in the Statement of Work. (c) Performance Warranty. For a period equal to one hundred eighty (180) days following Completion of Services (as that term is defined in the Software Implementation Services Agreement) date, Harris warrants to Organization that the Software will perform as described in the Software Implementation Services Agreement (which for the purposes of this Section shall include the Functional Requirements in the Statement of Work), if the Software is used in accordance with the Documentation,the terms of this Agreement, and where 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. (d) Warranty of Authority. Harris warrants that it has the full 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; or (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. - 9 - 00 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 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 THE SOFTWARE PROVIDED HEREUNDER. HARRIS, ITS LICENSORS AND SUPPLIERS DISCLAIM ANY IMPLIED WARRANTIES OR CONDITIONS REGARDING THE SOFTWARE PROVIDED HEREUNDER, 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, 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 SHALL BE BINDING ON EITHER PARTY UNLESS IN 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 Organization acknowledges 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 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 - 10 - notify Organization in writing of the hardware deficiencies. Organization 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 PAYMENTS Section 4.01 Fees and Payments (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 in Schedule "B". The 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 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. - 11 - 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. (i) EXCEPT FOR HARRIS'S INDEMNIFICATION OBLIGATIONS SET FORTH IN Section 5.02, TO THE GREATEST EXTENT PERMITTED BY APPLICABLE LAW,THE TOTAL LIABILITY OF HARRIS,ITS AFFILIATES, AND EACH OF THEIR RESPECTIVE DIRECTORS,OFFICERS,EMPLOYEES AND SHAREHOLDERS ANDORGANIZATION'S EXCLUSIVE REMEDY WITH RESPECT TO THE SOFTWARE 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, IN THE AGGREGATE, THE LICENSE FEES PAID BY ORGANIZATION TO HARRIS UNDER THIS AGREEMENT. (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 FOR ANY CONSEQUENTIAL , INCIDENTAL, INDIRECT, SPECIAL , AGGRAVATED, EXEMPLARY OR PUNITIVE DAMAGES WHATSOEVER, INCLUDING BUT NOT LIMITED TO, LOSS OF REVENUE, LOSS OF PROFITS, FAILURE TO REALIZE EXPECTED SAVINGS, COSTS OF SUBSTITUTE GOODS AND SERVICES, LOSS OF DATA, LOSS OF BUSINESS OPPORTUNITY, AND LOSS OF REPUTATION ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT. (iii) CLAUSES (i) AND (ii) SHALL APPLY IN RESPECT OF ANY CLAIM, DEMAND, ACTION, OR PROCEEDING HOWSOEVER ARISING BY A PARTY IRRESPECTIVE OF THE NATURE OF THE CAUSE OF ACTION UNDERLYING SUCH CLAIM, DEMAND, ACTION, OR PROCEEDING INCLUDING, BUT NOT LIMITED TO, BREACH OF CONTRACT - 12 - (INCLUDING FUNDAMENTAL BREACH), RESCISSION OF CONTRACT, 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. 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, Harris shall, at its expense, defend, indemnify, and hold the Organization harmless from and against any and all losses, liabilities, damages, costs, assessments, expenses (including, without limitation, interest, penalties, fines, expert fees and reasonable attorneys' fees), incurred in connection with any and all third-party causes of action, claims, demands, actions, suits, proceedings, settlements and judgments (collectively, "Claims") which Organization may incur or suffer or be put to by reason of or in connection with or arising directly or indirectly from any claim that Organization's use of the Software constitutes an infringement of the third party's intellectual property rights. This indemnity is effective when:(i) Organization gives Harris reasonably 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 5.02 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) 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 5.02 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 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. - 13 - QV (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: (i) this Section 6.01 applies to records prepared, owned, used, or retained by the Organization that contain Confidential Information only to the extent that such provision is consistent with the Public Records Act, Chapter 42.56 of the Revised Code of Washington ("RCW"); (ii) If Harris has identified any record as containing Confidential Information, the Organization will: (a) use its best efforts to give Harris notice of a public records request or subpoena that seeks such Confidential Information, and (b) provide Harris a reasonable time period under the circumstances to obtain an injunction to enjoin the Organization from disclosing the requested Confidential Information to the party who has requested it. Regardless of any other provision in this Agreement to the contrary,the Organization will not assert on Harris' behalf any exemption on the basis of the record's confidential or proprietary nature. Harris agrees to hold the City harmless from any damages, claims, or attorneys' fees that may be incurred by or assessed against the City and related to Harris' pursuit of an injunction to enjoin the City's disclosure of the requested record or information; (iii) except as otherwise provided for in this Agreement, 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; - 14 - (iv) 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; (v) except as otherwise provided above, 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 (vi) 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. (vii) Notwithstanding anything to the contrary, the Software shall at all times remain Confidential Information and the confidentiality obligations in this Agreement remain in effect. 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 - 15 - (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 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 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 terminate upon the termination of this Agreement. However,a warranty will be deemed to have applied if the warranty was in effect at the time an event occurred that gave rise to the claim. Article VIII. GENERAL Section 8.01 Resolution of Disputes If the parties are unable to settle any dispute, difference, or claim arising from the parties' performance of this Agreement,the exclusive means of resolving that dispute,difference, or claim,shall only be by filing suit exclusively under the venue,rules,and jurisdiction of the King County Superior Court, King County, Washington, unless the parties agree in writing to an alternative dispute resolution process. In any claim or lawsuit for damages arising from the parties' performance of this Agreement, each party shall pay all its legal costs and attorney's fees incurred - 16 - 00 in defending or bringing such claim or lawsuit, including all appeals, in addition to any other recovery or award provided by law; provided, however, nothing in this paragraph shall be construed to limit the Organizations right to indemnification under Article 5 of this Agreement. 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 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 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 Ottawa, Ontario K2E 8C4 Attention: CEO Telephone: 613-226-5511, extension 2149 With a copy to: legal@harriscomputer.com and in the case of the Organization, to: CITY OF KENT Information Technology 220 4th Ave. S. Kent, WA 98032 Attention: ITA@kentwa.gov Telephone: 253-856-4600 Each party may change its particulars respecting notice, by issuing notice to the other party in the manner described in this Section 8.02. Section 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,merger, sale of substantially all of its assets, or other change in legal status. The Agreement shall inure to - 17 - the benefit of and be binding upon the parties to this Agreement and their respective 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 8.04 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 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 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. Section 8.07 Governing Law This Agreement shall be governed by and construed according to the laws of the State of Washington. This Agreement excludes that body of law applicable to choice of law, 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. - 18 - Section 8.08 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. Section 8.09 Attorneys' Fees Subject to the indemnification provisions set forth in this Agreement, if any action or suit is brought with respect to a matter or matters covered by this Agreement, each party shall be responsible for all of its own costs and expenses incident to such proceedings,including reasonable attorneys' fees and costs. Section 8.10 Public Records Act Harris acknowledges that the Organization is a public agency subject to the Public Records Act codified in Chapter 42.56 of the Revised Code of Washington and documents, notes, emails, and other records prepared or gathered by Harris, and used by the Organization, may be subject to public review and disclosure, even if those records are not produced to or possessed by the Organization. As such, Harris agrees to cooperate fully with the Organization in satisfying the Organization's duties and obligations under the Public Records Act. Section 8.11 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 of this Agreement shall remain in full force and effect. Section 8.12 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 in writing and signed by an authorized representative of the waiving party. Section 8.13 Counterparts This Agreement may 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 8.14 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 - 19 - 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 volume of receipts generated by Organization, and other generic information about Organization which may include published contact information. Section 8.15 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 Harris and set forth an allocation of risk reflected in the fees and payments due hereunder. Section 8.16 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 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 8.17 Equitable Relief Organization acknowledges and agrees that it would be difficult to compute the monetary loss to Harris arising from a breach or threatened breach by Organization of Section 2.01 in 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 by Organization of Section 2.01 in this Agreement by Organization. Section 8.18 Force Maieure No default, delay or failure to perform 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, 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, 1.02,2.03,2.04,2.05,2.06„3.02,3.03, 3.04,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. -20 - IN WITNESS WHEREOF the parties hereto have duly executed this Agreement to be effective as of the date fast written above. N.HARRIS CqWUTER CORPORATION Per: N J iI'rey Sumner Tit e: ecutive Vice President Per: i4 Ik Name: Todd Richardson Title Chief Financial Officer CITY OF KENT,WA Per: '0**'*L0DaAQ.jz-L/U Name: Dana Ralph Title: Mayor Per: Name:Mike Carringto Title: Information Technology Director -21 - Schedule "A" Description of Software Covered Prograr s Software,Mr�dr� e �escritia Assuatic�n iNovah Software Modules l iNovali ERM 100,000 receipts Base Software Version �iNo'A fnt6grat ores Interface Module(s) Business and Occupation Tax Web Services Real-Time integration Data Now (Utility Billing/Harris Product) Real-time stored procedures lava Permitting- stored procedures (Accela), Real-time inquiry, batch update. JDE GL/ Export Elavon Simplify iNovah API Additional Modules Schedule "B" License Fees and Payment Schedule � r r l / r ✓ ! rG / ✓ (,Y f r,,, r �j r / , r'/�r/ r, F ✓ o ,, � ,r �✓ r/l' ..t�( r(�r/lll�ft/✓��t r��//���� �/ � � l 11,rr:iNovah ERM - Up to 1 Q0,000 Annual Receipts, $50,000.00 'Unlimited Users, Unlimited Workstations Interface Module(s)—DENT WA Bundle $85,000.00 Business and Occupation Tax Web Services Real-Time integration Data Now/ Utility Billing Kiva Permitting- stored procedures ( Accela) JDE - GL Export Elavon Simplify iNovah API Interface Modules Multi Interface Discount ${37,500.00) TOTAL LICENSE COSTS $97,500.00 Payment Schedule Y, 011 /� / /-," / �e ��/„�, //�/%��Jiii i.,,,.r,,trl, r,,,r/f/il�/w„r�///J/r /l ,,.iirri/l�lr,,,,�,1/l�, //��i„r,rJ,,!✓/,,,/,.r Final Contract Executed $48,750.00 50% of Total license Fees Installation of Base lNovah product $24,375.00 in test environment 25% of Total license Fees Completion of deployment and Go $24,375.00 25% of Total License Fees Live Total S97,500.00 Schedule"C" Third Party Software Licenses and Third Party Software Terms As of the Effective Date of this Agreement,no Third-Party software is required,and the references to such in the Agreement are not applicable. These terms were included in the Agreement for convenience in the event a future amendment to the Agreement were to occur that implicated those provisions. Schedule "D" System Software As of the Effective Date of this Agreement, no System Software or Hardware is being provided to Organization, and the references to such in the Agreement are not applicable. These terms were included in the Agreement for convenience in the event a future amendment to the Agreement were to occur that implicated those provisions. Exhibit 1 Annual Support and Maintenance Fee Year 1 Support and Maintenance Fees: $24,375.00 Year 2 Support and Maintenance Fees: $25,594.00 Year 3: Support and Maintenance Fees: $26,873.00 Year 4: Support and Maintenance Fees: $28,217.00 Year 5: Support and Maintenance Fees: $29,628.00 Exhibit 2 Standard Support and Maintenance Services— Standard Guidelines The purpose of this Exhibit 2 is to provide our clients with information on our standard coverage, the services which are included as part of the annual software support and maintenance services, a listing of call severities, an outline of our escalation procedures and other important details. Harris reserves the right to make modifications to this document as required; provided, however, Harris shall not reduce the scope of support provided hereunder without the prior consent of the Organization. I Description of Support Services 1.1 Support Request Flow -AMM ITS rz -NO. YE ............ 1.2 Support Request Process In order to initiate the support process, the client is required to notify Harris Client Services of a support request by phoning support or by sending an email. In the future a Web Portal Ticketing Tool will be available. In either case the client will receive a case reference number for tracking the progress of the support request. ■ All client support requests must include at a minimum: organization name, contact person, software product and version, module and/or menu selection, nature of issue, detailed description of the question or issue and any other information believed to be pertinent. ■ A support analyst will record the request into the support tracking system. The client will receive a case number for issue tracking. ■ The request will be logged to a queue and the first available support analyst will be assigned to work the support request with the client. ■ While the support analyst investigates the issue,the client will be contacted for additional information, advised of issue status, and course of action for resolution. ■ Should the support request uncover a product defect,the issue will also be logged into the development tracking system.Now, along with the case number,the client will also receive a bug number. At this time, the support case will be placed in a deferred state. The case will reference the bug number. Issues escalated to development will be scheduled for resolution in a future software maintenance release. The resolution timeline is dependent on the nature and complexity of the defect. ■ Should the support request uncover new feature/functionality, the request will be logged into the development tracking system. Now, along with the case number, the client will also receive a change request number. At this time,the support case will be placed in a deferred state. The case will reference the change request number. Clients may be charged for new feature/ functionality requests. ■ Contact the support department at your convenience for a status update on any and all support requests. 1.3 Standard Support Services and Activities The support services listed below are included as part of annual software support and maintenance: ■ 800 toll free telephone support ■ Email support call logging and notification ■ Technical troubleshooting and issue resolution ■ Periodic software maintenance updates that incorporate new product features/functionality ■ Periodic maintenance updates of the software that incorporate corrections of defects, fixes of minor bugs ■ Product release notes ■ Product manuals ■ Training guides ■ Installation documentation ■ Technical service bulletins ■ Peripheral device support; drivers, firmware ■ New software release notifications 0 State and/or Federal mandated changes (charges may apply) ■ Scheduled assistance for installations, upgrades and other special projects (charges may apply) ■ Design review for potential enhancements or custom modifications(charges may apply) ■ Limited training consultation(15 minute guideline) ■ Attendance at the annual customer conference (attendance fees apply) 1.4 Out of Scope Services and Activities ■ Extended training consultation ■ Setup of peripheral devices; printers, scanners, barcode readers, imagers, cash drawers ■ Custom software modifications - Source system interfaces - File imports and exports - Bills/scanlines/barcodes - Cashiering customizations - Reversal of customizations ■ Data conversions/global modification to setup table data ■ Database maintenance, repairs and optimization ■ Database refreshes, backups, restores ■ Operating system installation/upgrades of servers/workstations ■ iNovah Public API consulting(billable service) ■ Custom report development(billable service) ■ Form creation or re-design(billable service) ■ On-site installation, upgrade or troubleshooting ■ Reconfiguration of hardware, fileservers, and virtual environments ■ Hardware system upgrades ■ Third party software upgrades ■ Assistance with creation of backup scripts/backup recovery ■ Assistance with database installation, configuration and updating ■ Preventative maintenance monitoring or other services ■ Recommending or assisting with disaster recovery plans ■ Assistance with recovering data resulting from system crashes (charges may apply) 1.5 Third Party Support The purpose of this section is to provide our clients with information on the standard coverage and the services which are included in annual maintenance with regard to third party software support(if applicable). This section serves as a guideline for the support department but is superseded by any existing third party or other agreement. ■ 800 telephone support—first line phone support for troubleshooting (more complex issues will be escalated to the actual third party vendor of the product) ■ "On call"after hours support (scheduled assistance for installations, upgrades and other special projects—there may be charges depending on the scope of work) ■ Technical troubleshooting ■ Limited training questions (15 minute guideline) ■ Support provided for installed database issues (30 minute guideline) ■ Web Service installation and connection to database assistance ■ Updating system to support new versions of licensed applications 2 Severity Levels 2.1 Definitions In an effort to assign resources to incoming calls as effectively as possible, we have identified four types of call severities, 1,2, 3, and 4. A Severity 1 call is deemed as an Urgent Priority call, Severity 2 is classified as a High Priority, Severity 3 is Medium Priority, and Severity 4 is Low Priority. The criteria used to establish guidelines for these calls are as follows: IN Severity I The total unavailability of the production application,or a repeatable malfunction within the production application causing impact to business operation it'not promptly restored. • System Down(Software Application) • Inability to process payments • Program errors without workarounds ■ Incorrect calculation errors impacting a majority of records • Aborted postings or error messages preventing data integration and update • Performance issues of severe nature impacting critical processes Severity 2 Reproducible issues that affect the functioning of components within the application, or data inconsistencies with no work-around available. • Calculation errors impacting a minority of records • Report calculation issues • Printer related issues(related to interfaces with our software and not the printer itself) • User Security/Permission issues • Workstation connectivity issues(Workstation specific) Severity 3 Reproducible or intermittent Issues that affect the functioning of components within the application,or data inconsistencies. Workaround available. • Usability issues • Performance issues not impacting critical processes • Report formatting issues • Training questions,how to,or implementing new processes • Recommendations for enhancements on system changes Severity 4 Requests for information,assistance on application capabilities,and other requests that do not fit the criteria for Severity. I,,Severity?,or Severity 3. • Questions about documentation • Requests for documentation or information • Questions about products • Aesthetic issues 3 Service Levels 3.1 Response Time Jig? Severity I I - 4 Business Hours Severity 2 1 -2 Business Days Severity 3 1 -5 Business Days Severity 4 1 - 10 Business Days • Response times are not applicable during office closure for published holidays, or natural disasters, and/or other exceptional unplanned events, Harris does not guarantee case resolution during the response time, only acknowledgement of the support request. 4 Client Desi,2nated Support Contacts The client will assign two (2) named resources, a primary and a backup, to be client designated support contacts responsible for: I. Assisting with the support relationship between Harris and the client 2. Initiating and managing the priority case handling process 3. Distributing proactive notifications to the client's end users (as applicable) 4. Ensuring appropriate follow up and feedback from the client's end user 5. Ensuring that a communication link is operational for remote troubleshooting purposes; direct internet, virtual private network (VPN), rernote access server(RAS) 5 Contact Information and Support Hours 5.1 Contact Information Phone 800.963.5000 x2 Email clie:ntservices@systeminiiovators.com 5.2 Support Hours Monday thru Friday 8arn— 8pm Eastern Time 5.3 Holiday Schedule Please note that support services will be closed on designated days as outlined below. An asterisk * next to the holiday indicates that the Harris office is closed, however, client support is available. New Year's Day Closed President's Day (Observed) Closed Memorial Day (Observed) Closed 41" of July(Observed) Closed Labor Day Closed Columbus Day * Closed Thanksgiving Day Closed Day after Thanksgiving * Closed Christmas Day (Observed) Closed Day after Christmas * Closed 6 Support Request Escalation 6.1 Process This escalation process was implemented to ensure that client issues are handled in an efficient and timely manner. If at any time you are not completely satisfied with the handling of the support request, escalate with the support department as follows: ■ Contact the analyst working the issue ■ Contact the Manager of Support ■ Contact the Vice President of Support ■ Contact the Executive Vice President of Harris (b) "Upgrade" means a major release of the Software which is a complete new published version of the Software that [significantly] modifies,revises or 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 the decimal point in the version number(for example, a change from 1.X to 2.X). (c) "Release"means Updates and Upgrades. All Releases are provided in object code. 2. Entire Agreement. This Agreement (including the Change Order document referred to herein and the schedules and exhibits hereto) supersedes all prior representations, arrangements, negotiations, understandings and agreements between the parties, both written and oral,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 as provided by this Agreement and 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 so long as such changes do not diminish the overall level of services, 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 and 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. The first billing date shall be the pro rata amount for the period beginning on the date the Software is Go-Live in the production environment (the "Start Date") to the "Renewal Date", which is defined as being January 1 of the following calendar year. 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. The Support and Maintenance Fee shall be fixed for the first five (5) years of support in accordance with the rates provided for in Exhibit 1. 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. -2- 5. Billable Fees. In addition to the Support and Maintenance Fee, the Organization shall reimburse Harris for fees related to 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 ("Billable Fees"). The Billable Fees will cover expenses related to the installation/implementation 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. The 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$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); and a mileage charge consistent with the Internal Revenue Service recommended rate per mile, (c) and all other reasonable expenses incurred in the performance of Harris's duties hereunder. To be reimbursable, these Billable Fees must be expressly approved by the Organization in advance of Harris having incurred them. 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 upon the Organization's written approval of such updates. 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 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 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. 8. Compatibility. In the event any future Updates or Upgrades are incompatible with Organization's computing environment, including without limitation, database software, network, and platforms, including the interface modules identified in the Software Implementation Services Agreement, Harris will use commercially reasonable efforts to achieve compatibility. -3- 9. 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. 10. 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. 11. Term. Unless terminated earlier in accordance with this Agreement,the initial term of this Agreement shall be for the period of five (5) years that begins on the Start Date and ends five (5)years after that Start Date (the "Initial Term"). Thereafter, the parties may agree to extend this Agreement by a written amendment to this Agreement or a new Support and Maintenance Agreement. 12. 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. 13. Termination. (a) Harris shall have the right to terminate this Agreement and/or suspend the provision of Support and Maintenance Services immediately if- (i) Organization attempts to assign this Agreement or any of its rights hereunder, or undergoes a reorganization, without complying with the Software License Agreement; (ii) Organization has not paid an invoice within ninety (90) days of the start of a Renewal Term; (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) -4- 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) Organization may terminate this Agreement,with or without cause,upon providing Harris with at least ninety(90)days advance written notice of Organization's intent to not renew the Agreement after December 31 of the current annual term. (c) 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. 14. 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. 15. Warranties. (a) Service Warranty. Harris represents and warrants that all services shall be provided in a timely manner and with a reasonable standard of care, in a workmanlike and professional manner, and consistent with generally accepted industry standards. Each of Harris' representatives and agents assigned to perform services under this Agreement shall be fully qualified,experienced,and technically trained, and shall perform the services in a reasonably cost-efficient manner. (b) Virus Warranty. Harris warrants that, any Updates and/or Upgrades delivered to Organization, on the date of delivery, do not contain any malicious code, program, or other internal component (e.g., computer virus, computer worm, computer time bomb, or similar component) that could damage, destroy, or alter any computer program, firmware, or hardware or which could in any manner, reveal, damage, destroy, or alter any data or other information accessed through or processed by the software product(s) or other products in any manner. Harris shall promptly advise the Organization, in writing, upon reasonable suspicion or actual knowledge that the software product(s) or other products may result in the harm described above. 16. EXCEPT AS OTHERWISE EXPRESSLY PROVIDED FOR WITHIN THIS AGREEMENT, AND 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 -5- 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 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 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. 17. Notice. Unless otherwise agreed to by the parties, all notices required hereunder shall be made in accordance with the provisions of the License Agreement. 18. 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. 19. 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 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, expiration or other discharge of the obligations of the parties under this Agreement. (c) EXCEPT FOR DAMAGES ARISING OUT OF (i) DAMAGE TO TANGIBLE PROPERTY (ii) INJURY OR DEATH TO PERSONS, OR (iii) INTENTIONAL MISREPRESENTATION, GROSS NEGLIGENCE OR WILLFUL MISCONDUCT, 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 SUPPORT SERVICES AND ANY OTHER PRODUCTS, MATERIALS OR SERVICES SUPPLIED BY -6- HARRIS IN CONNECTION WITH THIS AGREEMENT FOR DAMAGES FOR ANY CAUSE AND REGARDLESS OF THE CAUSE OF ACTION, SHALL NOT EXCEED, IN THE AGGREGATE, THE AMOUNT OF SUPPORT AND MAINTENANCE FEES ACTUALLY PAID BY THE ORGANIZATION TO HARRIS UNDER THIS AGREEMENT DURING THE THEN-CURRENT TERM(AND IN NO EVENT BEING GREATER THAN 12 MONTHS) OF THIS AGREEMENT UP TO AND INCLUDING THE DATE OF TERMINATION. (d) 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 ORGANIZATIONFOR ANY CONSEQUENTIAL, INCIDENTAL, INDIRECT DAMAGES, EXEMPLARY, PUNITIVE, SPECIAL, OR AGGRAVATED DAMAGES WHATSOVER, INCLUDING WITHOUT LIMITATION FOR LOSS OF REVENUE, LOSS OF PROFITS, FAILURE TO REALIZE EXPECTED SAVINGS, COSTS OF SUBSTITUTE GOODS OR SERVICES, LOSS OF DATA, LOSS OF BUSINESS OPPORTUNITY ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT. (e) CLAUSES (c) AND (d) SHALL APPLY IN RESPECT OF ANY CLAIM, DEMAND, ACTION, OR PROCEEDING HOWSOEVER ARISING BY A PARTY IRRESPECTIVE OF THE NATURE OF THE 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. (f) 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 the Harris arising out of or in connection with this Agreement, notwithstanding any remedy otherwise available at law or in equity. 19. 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. 20. Governing Law. This Agreement shall be governed by and construed by the laws of the State of Washington. 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. -7- 21. Assignment. This Agreement may 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. 22. 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. 23. 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 shall constitute an original and all of which together shall constitute one and the same agreement. 24. Resolution of Disputes. If the parties are unable to settle any dispute,difference, or claim arising from the parties' performance of this Agreement,the exclusive means of resolving that dispute, difference, or claim, shall only be by filing suit exclusively under the venue, rules, and jurisdiction of the King County Superior Court, King County, Washington, unless the parties agree in writing to an alternative dispute resolution process. In any claim or lawsuit for damages arising from the parties'performance of this Agreement,each party shall pay all its legal costs and attorney's fees incurred in defending or bringing such claim or lawsuit, including all appeals, in addition to any other recovery or award provided by law; provided, however, nothing in this paragraph shall be construed to limit the Organizations right to indemnification under Article 5 of this Agreement. 25. 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. 26. 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. 27. Force Maieure. . No default, delay or 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 Harris, or other disasters or events. -8- IN WITNESS WHEREOF,the Parties have executed this Support and Maintenance Agreement to be effective as of the date first written above. SYSTEM INNOVATORS,A DIVISION OF N. S R CORPORATION Per: Na�Ex Sumner Titve Vice President Per: t4 1� Name: Todd Richardson Title: Chief Financial Officer City of Kent,WA Per t e: Dana Itatplt ayor Per. Name:Mike an Title:Information nol Director -9- 0 0 m m C) CD C) C) CD U) C) CY) CF) C� 0 't Q <D 00 'LO T fb 4 't CD C.0 w "t m t'- CY) L6 -- 00 N Co (N N (Y) 0 CV CV' x C) o cq co CD CD 6 6 6 ci 6 P C:) M �r — m co oc� U� CIL C0 0') ^r CD CD 0 CD 0 0 0 0 0 0 x E E q q " ll� q q q q q q m U) -0 0 0 m 0 0 0 CD C) 0 m F- 00 ry < 00 M M N 0 C a) L) x co m 0 CO Lu U) (f) C) (1) It 0) c C 0:) LIJ Y7) V- Z I;zr CY) 0) 0 co (D 0 clq > L) > 0 z a) 4-1 c D a) (D ,a V 5, L. 3— < cu 0 0 0 0 = 1 CY LM (D m 0fll o CL OR a) of U') 0 0 0 E U) CL n E Ln a a) co co u LM C:3 CD 0 CD CD co 70 �: CO CY) 0 -0 C7 o> cli (n Q C) cts (n c as -0 :D qk co LL IL 0CL C:) 'M 0 u C:) LL 0 L.L 0- rp - -0 ch a C) cn IL 00 co w cn c 0 c U) c C) C? a) a)cr da) a CJ was r 0 mdbm U) U) C) V) (n _0 LL cL LL CL.. — N -Fz 6 a) (D , Cl...LD .LD LL iD > cu > > -C m 0 2 (1) U) 0 'r T- IL CL < < E a) (D 0 -0 E o o a) 0 0 ez� 7C) Co N U) CL 0 (n E E 0 r- 0 .0 < > o E 0 (D E 1- 0 'F CL (D CL >% -F w ;: R a CL RS 6 -1 — M M fD CO 0) , 0 N U) y 0 CITY OF KENT INFORMATION TECHNOLOGY 2zow" Avenue south n xvxeuo3z ���~ — Kent,Fax: 253-856-47OO =^*"'"°`0" P*omE: 253-856-4600 Memo To: Suzette Cooke, Mayor Fr,o�mm: Annette Pape, Project Manager/Bus|nessAOa|yst CC: Mike Carrington, Information Technology [}|nackor Date: Decenmber18, 2017 Re: Request for Waiver of competitive bid requirement for purchases under KCC 3.70.110(A) for Finance and Police Department Point of Sale (P0S) System The Finance and Police Departments are working with Information Technology to acquire a new Point of Sale (PL)S) system to update and improve the [ity's ability to process receivables oms|te and over the internet. IT has evaluated the market and surveyed the potential vendors who offer a P{)Ssystenn that meets the City needs. Based on this research, Information Technology believes that iNovoh is the vendor best Situated to meet these need*. For that reason, Information Technology respectfully requests that the Mayor find that competitive bidding, in this circumstance, is not in theCih/'S best interest Orotherwise practicable, and authorize Information Technology to enter direct negotiations with iNovah. |Novah's products are preferred due to the demonstrated quality, reliability, and sca|abi|ity of its software program, Base of use by City Staff and residents, and the pn)gxarn'G |nteroperabiK|iy with key systems within the City. The iNovah system will enable the completion of several other projects that are dependent on a POS system with an open API (Application Programming Interface), allowing the Utility Billing, B&O, Banhcard Service Fees; Licensing & Permitting and compliance projects tDbecompleted. In addition, |Novah is the sole vendor that meets the entirety ofITand Finonce's requirements. For all these reasons, and after discussions with the city attorney, we feel that negotiation ofadirect purchase with |NoVah meets, the C|Ly'5 standards towaive competitive bidding for the new software product because l0ovah not only meets the requirements of the POB, but also the r8ceipting requirements ofUB, B&O, Bankcard Service Fees, Licensing/Perm itting and PCI (Payment Card Industry) Compliance and it is otherwise not in the city"s best interests to go out to bid in this circumstance. See Kent City Code § 3.70.110 /A\/2\ & (A)(3). Thank you very much for your time and consideration on this matter. If you concur with th,is recommendation, please indicate your approval by signing below. • KENT Agenda Item: Consent Calendar - 8C W•5*11.Gr ON TO: City Council DATE: March 6, 2018 SUBJECT: N. Harris Computer Corporation, iNovah Solution/Point-of-Sale System - Authorize MOTION: Authorize the Mayor to sign the software license, implementation, and support and maintenance agreements with N. Harris Computer Corporation to replace the City's existing point of sale system, subject to final terms and conditions acceptable to the Information Technology Director, and the City Attorney, in an amount not to exceed $300,000. SUMMARY: The point of sale ("POS") system used by the City's Finance and Police Department is at its end of life and is no longer supported by the vendor (CLASS). City staff surveyed potential replacement options and selected the iNovah solution, manufactured by N. Harris Computer Corporation, as its preferred system due to its open application programming interface, which allows the City to integrate the iNovah solution with other systems. These agreements will allow for the replacement of the current CLASS system and includes the core POS application, POS hardware, and Europay Mastercard Visa (EMV) Chip Card Readers. The deployment will also include an updated database platform and the potential for implementing Merchant Bankcard Service Fees in the future. The iNovah solution also allows the City to come into full Payment Card Industry (PCI) compliance. On December 18, 2017, former Mayor Suzette Cooke issued a waiver under KCC 3.70.110(A)(3) authorizing the City to enter into direct negotiations with N. Harris Computer Corporation for the iNovah solution. The City and N. Harris are still negotiating the agreements' final terms, but the substantive provisions will be as provided for within the attached agreements. EXHIBITS: A. February 5, 2018 Memo to the Operations Committee B. Memo to the Mayor Requesting Waiver of Competitive Bid Requirement C. iNovah Pricing Overview D. Software Implementation Services Agreement E. Software License Agreement F. Support and Maintenance Agreement G. Vendor Matrix RECOMMENDED BY: Operations Committee YEA: Boyce, Troutner NAY: Budget Impact: None STRATEGIC PLAN GOAL(S): ® Innovative Government - Empowering responsible citizen engagement, providing outstanding customer service, leveraging technologies,and fostering new opportunities and industries that benefit our community. ® Authentic Connectivity and Communication - uniting people to people, to places, and to their government through superior infrastructure,enriched community interactions,and responsive, trusting relationships. INFORMATION TECHNOLOGY DEPARTMENT Mike Carrington, Director Phone: 253-856-4607 I's • Fax: 253-856-4700 KENT WASHINGTON Address: 220 Fourth Avenue S. Kent, WA. 98032-5895 DATE: February 5, 2018 TO: Operations Committee FROM: Michael Carrington, Information Technology Director SUBJECT: Finance/Police Department Point of Sale (POS) Replacement Project MOTION: Recommend Council to authorize the Mayor to sign software license, implementation, and support and maintenance agreements with N. Harris Computer Corporation to replace the City's existing Point of Sale system, subject to final terms and conditions acceptable to the Information Technology Director, and the City Attorney, in a total amount not to exceed $300,000. SUMMARY: The point of sale ("POS") system used by the City's Finance and Police Department is at its end of life and is no longer supported by the vendor (CLASS). City staff surveyed potential replacement options and selected the iNovah solution, manufactured by N. Harris Computer Corporation, as its preferred system due to its open application programming interface, allowing the City to integrate the iNovah solution with other systems. These agreements will allow for the replacement of the current CLASS system and includes the core POS application, POS hardware, and Europay Mastercard Visa (EMV) Chip Card Readers. The deployment will also include an updated database platform and the potential for implementing Merchant Bankcard Service Fees in the future. The iNovah solution also allows the City to come into full Payment Card Industry (PCI) compliance. On December 18, 2017, former Mayor Suzette Cooke issued a waiver under KCC 3.70.110(A)(3) authorizing the City to enter into direct negotiations with N. Harris Computer Corporation for the iNovah solution. The City and N. Harris are still negotiating the agreements' final terms, but the substantive provisions will be as provided for within the attached agreements. EXHIBITS: A) Vendor License Agreement B) Vendor Implementation Agreement C) Vendor Support and Maintenance Agreement D) Vendor Proposal BUDGET IMPACT: Funding for this system was approved in the City's 2017 - 2018 Capital Biennial Budget. Item Price Hardware $ 15,504.00 Software $ 97,500.00 Professional Services $ 108,000.00 Travel $ 16 000.00 Annual License Renewal $ 24,375.00 Subtotal 261 379.00 Tax $ 13,108 Total $ 274,487 Vendor: N. Harris Computer Corporation d.b.a. System Innovators Procurement: Finance/PD POS Replacement Product: iNovah Accounting: • 10001640.63500.1340 - Finance - 80% 10002221.63500.3221 - PD - 20%