HomeMy WebLinkAboutCity Council Committees - Operations Committee - 02/20/2018 (2)
Unless otherwise noted, the Operations Committee meets at 4 p.m. on the first and third
Tuesday of each month in Kent City Hall, Council Chambers East, 220 Fourth Ave S, Kent, WA
98032.
For additional information please contact Jennifer Hays at 253-856-5700, or via email at
jhays@KentWA.gov.
Any person requiring a disability accommodation should contact the City Clerk’s
Office at 253-856-5725 in advance. For TDD relay service call Washington
Telecommunications Relay Service at 1-800-833-6388.
Operations Committee Agenda
Councilmembers: Bill Boyce – Dennis Higgins – Les Thomas, Chair
February 20, 2018
4 p.m.
Item Description Action Speaker Time Page
1. Call to order Chair Thomas 1
2. Roll Call Chair Thomas 1
3. Changes to the Agenda Chair Thomas 1
4. Approval of Check Summary Reports
dated 1/16/18 thru 1/31/18
YES Chair Thomas 1
5. Approval of Minutes dated February 6,
2018
YES Chair Thomas 2 1
6. N. Harris Computer Corporation, iNovah
Solution/Point-of-Sale (POS) System
YES Mike Carrington 5 3
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Operations Committee
Minutes
Approval Pending
Page 1 of 2
Date: February 6, 2018
Time: 4:02 p.m.
Place: Chambers East
Attending: Bill Boyce, Dennis Higgins, and Les Thomas, Chair
Agenda:
1. Call to Order.
2. Roll Call.
3. Changes to the Agenda.
There were no changes to the agenda.
4. Approval of Check Summary Reports dated 1/1/18 thru 1/15/18.
D. Higgins moved to approve the check summary report dated 1/1/18 thru
1/15/18. B. Boyce seconded the motion, which passed 3-0.
5. Approval of Meeting Minutes dated January 16, 2018.
B. Boyce moved to approve the Operations Committee meeting minutes dated
January 16, 2018. D. Higgins seconded the motion, which passed 3-0.
6. Budget Certification for Annexation Sales Tax Credit-Resolution -
Recommend.
Finance Deputy Director Barbara Lopez asked committee members to move
forward the resolution certifying the Panther Lake annexation sales tax credit
of $4,977,770 for the period of July 1, 2018 through June 30, 2019. Estimated
costs for the Panther Lake annexation area for the State’s fiscal year 2018 is
anticipated to be $14,243,180 in expenditures to provide city services to those
residents, with anticipated revenues of $9,265,410 from property taxes, sales
taxes and other sources. The net of the revenues and costs produces a deficit
of $4,977,770, which is the amount being certified as the amount of
annexation sales tax credit we are requesting from the State.
The City is required to certify to the State of Washington before March 1st of
each year, this certification period is the ninth year the City will receive the
annexation sales tax credit, which will expire June 30, 2020.
D. Higgins moved to recommend Council approve the resolution certifying
the Panther Lake annexation sales tax credit of $4,977,770 for the period
July 1, 2018 through June 30, 2019. B. Boyce seconded the motion, which
passed 3-0.
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Operations Committee
Minutes
Approval Pending
Page 2 of 2
7. 2018 ECD Staffing Proposal - Recommend.
Economic and Community Development (ECD) Deputy Director Kurt Hanson
made a request to approve three new hires to the department’s building plan
review and inspection capacity. These positions would be term-limited,
meaning that they will be hired to work full-time with benefits, but for a limited
period of up to three years. In addition to the three new hires, Mr. Hanson also
requested overtime funding for existing permit review staff as well as contract
permit review help in the Development Engineering section. Also proposed to
address permit volume-related support needs was to increase a Planning
Technician position that is currently a .75 FTE to 1.0 FTE.
The robust local economy has created an increase in building activity and a
high demand for city review of construction projects. While productivity among
ECD staff remains high, the demand has resulted in a growing backlog of work
and strain on staff throughout the permit review and inspection process. One
result of the increased activity is revenues significantly in excess of the City’s
budget for the ECD department. Revenue for 2017 was approximately $2.9
million over budget and the current economic forecast indicates the city will
experience a similar level of activity into the next biennium.
Since committee members moved the request forward and because of the
need to eliminate the existing backlog on permit review and inspections as
quickly as possible, this item was added to the Consent Calendar for full
Council to approve this same night, February 6, 2018.
B. Boyce moved to recommend that Council authorize the Mayor to fill two
new limited-term Plans Examiner positions and one new limited-term building
inspector position. Also, fund additional overtime and contract permit review,
and increase a Planning Technician position from .75 FTE to 1.0 FTE. D.
Higgins seconded the motion, which passed 3-0.
8. Adjournment.
The meeting was adjourned at 4:26 p.m. by L. Thomas.
J. Hays
Jennifer Hays
Operations Committee Secretary
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INFORMATION TECHNOLOGY DEPARTMENT
Mike Carrington, Director
Phone: 253-856-4607
Fax: 253-856-4700
Address: 220 Fourth Avenue S.
Kent, WA. 98032-5895
DATE: February 20, 2018
TO: Operations Committee
FROM: Michael Carrington, Director
SUBJECT: Finance/Police Department Point of Sale Replacement Project -
Recommend
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
Departments 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 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
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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
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KENT
CITY OF KENT
INFORMATION TECHNOLOGY
220 4th Avenue South
Kent, WA 98032
Fax: 253-856-4700
PHONE: 253-856-4600WASHtNGToN
Memo
to:
From:
CC:
Date:
Re:
The Finance and Police Departments are working with Information Technology to acquire a new
Point of Sale (POS) system to update and improve the City's ability to process receivables onsite
and over the internet. IT has evaluated the market and surveyed the potential vendors who offer a
POS system that meets the City needs. Based on this research, Information Technology believes
that iNovah is the vendor best situated to meet these needs. For that reason, Information
Technology respectfully requests that the Mayor find that competitive bidding, in this circumstance,
is not in the City's best interest or otherwise practicable, and authorize Information Technology to
enter direct negotiations with iNovah.
iNovah's products are preferred due to the demonstrated quality, reliability, and scalability of its
software program, ease of use by City Staff and residents, and the program's interoperability 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, Bankcard Service Fees; Licensing & Permitting and compliance
projects to be completed,
In addition, iNovah is the sole vendor that meets the entirety of IT and Finance's requirements,
For all these reasons, and after discussions with the city attorney, we feel that negotiation of a direct
purchase with iNovah meets the city's standards to waive competitive bidding for the new software
product because iNovah not only meets the requirements of the POS, but also the receipting
requirements of UB, B&O, Bankcard Service Fees, Licensing/Permitting 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 (AX2) & (AX3).
Thank you very much for your time and consideration on this matter. If you concur with this
recommendation, please indicate your approval by signing below.
CITY
Mayor
Suzette Cooke, Mayor
Annette Pape, Project Manager/Business Analyst
Mike Carrington, Information Technology Director
December IB, 2077
Request for Waiver of competitive bid requirement for purchases under KCC 3.70,110(A) for
Finance and Police Department Point of Sale (POS) System
t*/2q/r z
//
Date:
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iNovah Pricing Overview for
the City of Kent, WA
10.30.2017
7
iNovah Enterprise Revenue Management System (iNovah ERM)
We are pleased to provide the City of Kent this price quote for the replacement of
the City’s existing Payment Manager Cashiering with System Innovator’s iNovah
Enterprise Revenue Management (ERM) Solution which has been built specifically
for local governments. The pricing is based on our discovery and demonstration
with the City.
Software Licenses
iNovah ERM 100,000 receipt license $50,000.00
Kent Interface Bundle (Detail below) $47,500.00
Total Software $97,500.00
Annual Software Maintenance $24,375.00
Professional Services (600 hours) $108,000.00
Includes all services to implement iNovah ERM on site
within the City. City to provide all workstations and
servers.
Services include the following project phases:
1. Initiation, kick off and planning
2. Analysis and Design Services
3. Development and Configuration of iNovah and
Interfaces
4. Testing, integration, and functional testing
5. Deployment to production and go-live
6. Transition, go-live support and transition to
client services.
Cashiering Peripheral Hardware (per unit cost in $USD)
Canon CR-120 Check Scanner $895.00 (x8=$7160)
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TPG A776 Receipt Printers $600.00 (x8=$4800)
Honeywell Hyperion 1300 Bar Code Readers $175.00 (x8=$1400)
APG Cash drawers (if required) $268.00 (x8=$2144)
Total $15,504
Travel $16,000.00
Additional Optional Interfaces
JDE GL Validation $14,400
iCart for B&O Tax (online shopping cart) $40,000
The City may purchase peripherals from a third party or have us supply. We
would obtain quotes at the time of purchase if purchased through us.
The Kent Interface Bundle includes the following interfaces/modules:
1. Business and Occupation Tax - Web Services Real-Time integration
2. Utility Billing to DataNow (Harris Product) Real-Time stored procedures
3. Kiva Permitting - stored procedures (Kiva purchased by Accela), real-time inquiry,
batch update
4. JDE - GL Export
5. Elavon Simplify (if the City chose TR Multi option, costs could be less)
6. iNovah API (No Charge)
This quote is valid for 60 days from date of receipt.
Sincerely,
Don Schulte
Sr. Account Executive
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NOTICE: The data on the pages of this estimate identified by an asterisk (*) or marked along the margin
with a vertical line, contain information which are trade secrets and/or whose disclosure would cause
substantial injury to the System Innovators competitive position. System Innovator requests that such
data be used only for the evaluation of its estimate, but understands that disclosure will be limited to
the extent the City determines proper under federal, provincial, and local law.
Software $97,500 (including interface bundle) $107,250
Hardware $15,504 $17,054.40
Professional Services $108,000
Travel $16,000
Annual License Renewal $24,375 $26,182.50
Sub Total $261,379
Tax (10%) $13,108
Total $274,487
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SOFTWARE IMPLEMENTATION SERVICES AGREEMENT
THIS SOFTWARE IMPLEMENTATION AGREEMENT made as of the ____ day of
________, _______ (“Effective Date”).
BETWEEN:
SYSTEM INNOVATORS, A DIVISION OF
N. HARRIS COMPUTER CORPORATION
(“Harris”)
- and -
City of Kent, WA.
(“Organization”)
RECITALS
1. The Organization wishes retain Harris to perform certain software implementation services
as set out herein in respect of certain Harris software licensed by Organization pursuant to
a Software License Agreement entered into between the parties on the same date as the
Effective Date.
2. The Organization and Harris agree to enter into three (3) separate agreements each dealing
with a separate aspect of the software: a software license agreement and a support and
maintenance agreement each dated the same date as the Effective Date (the “Software
License Agreement” and “Support and Maintenance Agreement”, respectively), and
this Software Implementation Services Agreement.
NOW 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
1.1 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 Implementation
Services Agreement, including all of its Schedules and all instruments
supplementing, amending or confirming this Agreement. All references to
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“Articles” or “Sections” mean and refer to the specified Article or Section of this
Agreement except where a different agreement is explicitly identified.
(b) “Change Order” means any written documentation between the Organization and
Harris evidencing their agreement to change particular aspects of this Agreement.
(c) “Completion of Services” means that the Software is operational and performing
in conformity with the specifications set out herein and as set out in the acceptance
testing criteria in the Statement of Work, or from any additional requirements
resulting from the Design and Analysis Phase. Minor and/or inconsequential
deviation shall not constitute breach of the required specifications. For purposes of
this Agreement, Completion of Services will be deemed to have occurred on the
date on which the Organization commences using the Software in a production
environment.
(d) “Confidential Information” shall mean 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.
(e) “Designated Computer System” shall mean the Organization’s platform and
operating system environment which is specified in the Statement of Work for the
installation and operation of the Software.
(f) “Go-Live” means the event occurring when the Organization first uses the
Software as the Organization’s predominant Software.
(g) “Required Programs” has the meaning set out in Schedule “A” of the Software
License Agreement.
(h) “Statement of Work” means the statement of work appended hereto as Schedule
“A” delineating, among other things, the Services that will be provided by Harris
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to Organization pursuant to this Agreement, as such schedule may be amended or
modified by mutual specific written agreement of the parties’ respective
representatives from time to time in accordance with the terms of this Agreement.
(i) “Services” has the meaning set out in Section 2.1 hereof.
(j) “Software” shall mean the Harris software products listed in Schedule “A”. The
term “Software” excludes any third party software except where this Agreement
explicitly states otherwise.
(k) “Third Party Software” shall mean the third party software product, if any, listed
in Schedule “A”.
(l) “Update” means a minor release of the Software which includes minor published
modifications or enhancements to the Software related to a bug fix, minor
additional functionality or legislative changes. An Update is designated by a
change in the right-most digit in the version number (for example, a change from
X.1 to X.2).
(m) “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).
Terms not otherwise defined in this Agreement shall have the meaning attributed
to it in the Software License Agreement executed concurrently with this Agreement. Any
discrepancy between a defined term in this Agreement and one in the Software License
Agreement shall be resolved in favour of the definition in this Agreement, to the extent that there
is an inconsistency.
1.2 Schedules
The Schedules described below and appended to this Agreement are incorporated
by this reference and made a part of this Agreement.
Schedule “A” - Statement of Work
Schedule “B” - Fee Structure & Payment Schedule
Schedule “C” - Sample Form Change Order
In the event of any conflict or inconsistency between the terms and conditions in
the main body of this Agreement and the terms and conditions in any Schedule, the terms and
conditions of the main body of this Agreement shall control.
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ARTICLE II
CONSULTING SERVICES
2.1 Harris’s Services
In order to achieve the Completion of Services, Harris agrees, subject to the terms
and conditions of this Agreement, to perform the following services (the “Services”) to the
reasonable satisfaction of the Organization and in accordance with the relevant Statement of Work:
(a) Oversee and implement the conversion from the Organization’s existing software
applications to Harris’s Software.
(b) Install the Software and perform necessary installation and configuration
operations.
(c) Provide training.
(i) Harris recommends a maximum of ten (10) people in each training
class for optimal training. In any training class exceeding ten (10) people,
Organization may be assessed an additional charge for additional
instructors.
(ii) Organization is required to make copies of the training manuals
required for the training classes either by photocopy or electronic
duplication each of which is subject to the restrictions and obligations
contained in this Agreement.
(iii) On-line reference documentation is delivered with each release.
Organization may print this documentation solely for its internal use.
(d) The Statement of Work describes in greater detail the Services to be provided by
Harris, the method by which the Services shall be performed, any acceptance
testing required by Organization, and other obligations on the part of the two
parties. Despite the foregoing, any warranties or representations on the part of
Harris in the Statement of Work are not binding on Harris and are merely provided
for information purposes; the only warranties provided by Harris in respect of the
Services and this Agreement are found in Article III .
2.2 Performance by Harris
(a) Harris’s Discretion -- Harris’ agrees that its services shall be performed timely, in
a professional manner, and in accordance with industry practices in effect at the
time those services are performed, by qualified personnel familiar with the software
and its operation. Harris shall not be responsible for any delays to the project
schedules as a result of the actions or omissions by Organization or any third
parties. Harris shall determine in its sole discretion the manner and means by which
the Services shall be performed, with due consideration of Organization’s concerns.
Organization acknowledges that Harris has expertise in providing the Services.
(b) In addition to any other duties provided for under this Agreement, Harris shall
manage the delivery, installation, and configuration of the system and the
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performance of all services in connection therewith as described in, and in
conformance with, the attached and incorporated Schedule A, Statement of Work.
(c) Throughout implementation, Harris will promptly correct all defects to the extent
those defects originate from the acts or omissions of Harris’ Software, products,
personnel, or subcontractors. Harris agrees to notify the Organization in writing of
all material defects, whether discovered by other parties or by Harris, within 10
business days of their discovery and fix the problem within a commercially
reasonable time. If Harris is unable to fix the problem, then Harris shall provide a
work around acceptable to the Organization. A defect is considered material if it
has the potential to delay or inhibit the primary functionality of the Software or if
said defect has the potential to corrupt Organization data.
(d) Harris understands and agrees that its staff members in key roles will remain on
this project, that their level of involvement will not decrease beyond that proposed,
and they will not be reassigned or replaced by less proficient Harris staff through
implementation of the system. Any proposal by Harris for changes to, or
replacement or substitution of, key Harris staff for any reason throughout the
duration of the project must be submitted to the Organization for review and
approval. Approval shall not be unreasonably withheld. Key Harris staff for this
project have been identified as the persons performing the following roles: project
manager, technical lead, and end-user trainer.
(e) Conduct on Organization’s Premises -- The Services shall be performed with the
Organization’s full co-operation, on the premises of the Organization or, if agreed
to by both parties, at an alternative location. Harris agrees, while working on the
Organization’s premises, that Harris and its personnel shall observe the
Organization’s rules and policies, administrative codes, and ethics codes relating to
security thereof, access to or use of all or part of the Organization’s premises and
any of the Organization’s property, including proprietary and confidential
information, so long as Harris is provided with such rules, policies, and codes in
advance of Harris’s and its personnel’s attendance at Organization’s premises.
(f) Independence -- As an independent consultant, Organization retains Harris on an
independent contractor basis and not as an employee.
(g) Maintenance and Inspection -- Harris shall maintain complete and accurate records
with respect to all costs and expenses incurred under this Agreement. All such
records shall be clearly identifiable. Harris shall allow a representative of
Organization, no more than once in a calendar year, unless otherwise required by
law, during normal business hours and with adequate notice, to examine, audit, and
make transcripts or copies of such records and any other documents created,
pursuant to the Agreement. Harris shall allow inspection of all work, data,
documents, proceedings, and activities related to the agreement for a period of two
(2) years from the date of final payment under this Agreement unless Harris is
required to maintain such records pursuant to any law or regulation for a further
period of time, after which Harris shall be permitted to destroy all such information.
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2.3 Performance by Organization
(a) Co-operation by Organization -- The Organization acknowledges that the success
and timeliness of the implementation process shall require the active participation
and collaboration of the Organization and its staff and agrees to act reasonably and
co-operate fully with Harris to achieve the Completion of Services.
(b) Required Programs and Hardware -- The Organization acknowledges that in order
for Harris to supply the Services that the Required Programs shall be installed and
operational prior to Harris beginning the Services. The Organization further
acknowledges that the operation of the Software requires the Organization’s
hardware to be of sufficient quality, condition and repair, and the Organization
agrees to maintain its hardware in the appropriate quality, condition and repair at
its sole cost and expense, in order to permit Harris to provide the Services. If the
Organization has not properly installed the Required Programs and/or the hardware
is of insufficient quality, condition and repair, Harris shall have the right to suspend
the Services and the related scheduled time frames until Organization complies with
the requirements of this Section 2.3(b) to Harris’s reasonable satisfaction.
(c) Project Manager -- The Organization shall appoint a project manager (the “Project
Manager”) who shall work closely with Harris to facilitate the successful
completion of the implementation process and who shall be responsible for
supervising the staff of the Organization and their co-operation with and
participation in such process. The Project Manager’s duties shall be delineated in
the Statement of Work.
(d) Compliance – The Organization shall comply with all applicable local, state,
federal, and foreign laws, treaties, regulations, and conventions in connection with
its use of the Software, including without limitation those related to privacy,
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.
(e) Additional Organization Obligations
(i) Organization shall install all Updates within a reasonable period of time of
Organization’s notification of their availability. However, any Update or
other fix or correction designated as “critical” by Harris shall be
implemented by Organization within thirty (30) days of notification to the
Organization by Harris of its availability.
(ii) Organization shall notify Harris of suspected defects in any of the Software
supplied by Harris. Organization shall provide, upon Harris’s request,
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additional data deemed necessary or desirable by Harris to reproduce the
environment in which such defect occurred.
(iii) Organization shall allow the use of online diagnostics on the Software
supplied by Harris to Organization, if required by Harris during problem
diagnosis. Organization shall provide to Harris, at Organization’s expense,
access to the Designated Computer System via the Organization’s firewall
to communications software (e.g. PC Anywhere, WebEx, Web Demo).
(iv) Organization shall ensure that its personnel are, at relevant stages of the
project, educated and trained in the proper use of the Software in accordance
with applicable Harris manuals and instructions. If Organization’s
personnel are not properly trained as mutually determined by Harris and
Organization, acting reasonably, Organization agrees that such personnel
will be trained by Harris or Organization within fifteen (15) days of
determination. If Organization desires Harris to perform the required
training then Harris shall be compensated in accordance with this
Agreement.
(v) Organization is solely responsible for the ongoing backup of all data.
Organization shall establish proper backup procedures necessary to replace
critical Organizational data in the event of loss or damage to such data from
any cause. Organization acknowledges that Harris is not backing up any
data under this Agreement and that any loss of data as a result of the
Services is entirely an issue to be addressed by Organization and not Harris.
(vi) Organization shall provide Harris with access to qualified functional or
technical personnel to aid in diagnosis and to assist in repair of the Software
in the event of error, defect or malfunction.
(vii) Organization shall test the Software in accordance with the acceptance test
plan developed under Schedule A and shall Go-Live with the Software if,
after completing these tests, the Organization determines that the Software
conforms to the specifications provided for in Schedule A. At such time as
the Software complies with the acceptance criteria required for Completion
of Services, the Organization shall execute a form provided by Harris that
states that the Services have achieved Completion of Services status.
Acceptance shall not be unreasonably withheld. Until such time, the
Software will not be deemed to have achieved the acceptance criteria
associated with Completion of Services. For purposes of clarity, it is the
objective of the parties to achieve Completion of Services status within
__10 business_ days following Organization’s Go-Live.
(viii) Organization shall have the sole responsibility for:
(A) the performance of any tests it deems necessary prior to the use of
the Software;
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(B) providing information to Harris in the event Organization disputes
that the Services have achieved either Go-Live and/or Completion
of Services. The information must be detailed enough to
specifically document what functionality that is described in the
Statement of Work has not been met, which acceptance tests’
failures demonstrated that such functionality was not met, and the
anticipated outcome from Organization regarding the acceptance
test that was performed. Once any disputed issues are resolved to
Organization’s reasonable satisfaction, Organization shall be
presented the applicable form again and shall execute such form
within ten (10) days.
(C) assuring proper Designated Computer System installation,
configuration, verification, audit controls and operating methods;
(D) implementing proper procedures to assure the accuracy of any input
and the reviewing of output, and implementing procedures to restart
the Designated Computer System for recovery in the event of
malfunction/error;
(E) timely upgrade and keeping current all third party releases and/or
software/hardware products and related license rights to meet the
requirements of the Software; and
(F) maintaining proper configuration settings of the Software to ensure
use of the Software in compliance with applicable laws, including
performing re-validation of configuration settings following the
installation of any Updates or Upgrades.
ARTICLE III
REPRESENTATIONS AND WARRANTIES
Harris makes the following representations and warranties concerning the products and services
provided under this Agreement:
3.1 Service Warranty
Harris represents and warrants that all services shall be provided in a timely manner in
accordance with Schedule A, Statement of Work, 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.
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3.2 No Other Warranties
TO THE GREATEST EXTENT PERMITTED BY LAW, EXCEPT FOR THE LIMITED
WARRANTY PROVIDED IN SECTION 3.1, THE SERVICES ARE PROVIDED TO THE
ORGANIZATION “AS IS” AND THERE ARE NO WARRANTIES, REPRESENTATIONS OR
CONDITIONS, EXPRESSED OR IMPLIED, WRITTEN OR ORAL, ARISING BY STATUTE,
OPERATION OF LAW, COURSE OF DEALING, USAGE OF TRADE OR OTHERWISE,
REGARDING THEM OR ANY OTHER PRODUCT, SERVICE OR MATERIAL PROVIDED
HEREUNDER OR IN CONNECTION HEREWITH.
HARRIS, ITS LICENSORS AND SUPPLIERS DISCLAIM ANY IMPLIED
WARRANTIES OR CONDITIONS REGARDING THE SERVICES, SOFTWARE AND
MATERIALS PROVIDED HEREUNDER OR IN CONNECTION HEREWITH, INCLUDING,
BUT NOT LIMITED TO, WARRANTIES OF MERCHANTABLE QUALITY,
MERCHANTABILITY, DURABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE
OR NON-INFRINGEMENT.
HARRIS DOES NOT REPRESENT OR WARRANT THAT THE SERVICES SHALL
MEET ANY OR ALL OF THE ORGANIZATION’S PARTICULAR REQUIREMENTS, OR
THAT ALL ERRORS OR DEFECTS IN THE SOFTWARE CAN BE FOUND OR
CORRECTED.
NO AGREEMENTS VARYING OR EXTENDING ANY EXPRESS WARRANTIES
SET FORTH IN THIS AGREEMENT SHALL BE BINDING ON EITHER PARTY UNLESS IN
WRITING AND SIGNED BY AN AUTHORIZED SIGNING OFFICER OF HARRIS.
ARTICLE IV
FEES AND PAYMENTS
4.1 Fees and Payments
(a) The Organization agrees to pay Harris total fees as delineated in Schedule “B” in
total compensation for all implementation services provided by Harris. The fee
structure, payment schedule and pricing for Hardware is outlined in the attached
Schedule “B”. Organization may purchase the Hardware through Harris. No
warranties or liability shall be provided or incurred by Harris for the Hardware.
Organization shall be entitled to the manufacturer’s warranties. The fees set out in
this Agreement are exclusive of taxes. Organization agrees to pay all foreign,
federal, state, provincial, county or local income taxes, value added taxes, use,
personal, property, sales and any other taxes, tariff, duty or similar charges that may
be levied by a taxing authority (excluding taxes on Harris’ net income).
(b) As approved by the Organization in advance, the Organization shall reimburse
Harris for (1) its direct travel expenses including, but not limited to hotel, airfare,
car rental, tolls, parking and airline and travel agent fees; (2) a travel time rate of
$75.00 per hour; (3) a per diem rate of $70.00 for week days and a $125.00 for
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weekends and statutory holidays that includes all meal, food and
telecommunications expenses (no receipts will be provided); (4) a mileage charge
based on the current Internal Revenue Service recommended rate per mile; and (5)
all other reasonable expenses incurred in the performance of Harris's duties
including courier services and documentation copying or production. These costs
are excluded from the total fee amount described in Section 4.1 (a), but to be
reimbursable, these costs must be expressly approved by the Organization in
advance of Harris having incurred them. These fees and rates and those expenses
that are reimbursable are specific to the first Statement of Work agreed to by the
parties and thereafter the rates, fees, and applicable expenses shall be set separately
for each then applicable Statement of Work as negotiated by the parties.
(c) During the term of this Agreement, and in accordance with the project milestones
provided for by Schedule B, Harris shall deliver invoices to Organization.
(d) Each invoice delivered to Organization by Harris, and undisputed by Organization,
shall be due and payable upon receipt thereof by Organization. The Organization
shall notify Harris of any disputed amount within twenty (20) business days of
receipt of the applicable invoice. Harris will delay the imposition of interest or other
penalties under the parties have resolved the disputed invoice.
(e) In the event Organization fails to pay all or any portion of an invoice on or before
thirty (30) days after the date it becomes due, in addition to all other remedies Harris
has under this Agreement or otherwise, Harris shall have the option to suspend or
terminate all Services under this Agreement. Suspension or termination of any such
Services shall not relieve the Organization of its obligation to pay its outstanding
invoices and other ongoing fees, including any applicable late charges. Where the
Services are suspended, all related scheduled time frames shall be suspended and
extended as necessary.
(f) Any fees based on a fixed price agreement are provided based on the Statement of
Work in existence as of the Effective Date. Any delays that result from
Organization’s actions, inaction, or requests for modifications – whether
incorporated into a Change Order or not – will affect the basis on which Harris
provided the fixed price; and as such, Harris reserves the right to charge for
additional time and expenses where the duration of the Statement of Work is
extended as a result of Organization’s actions, inaction, or requests for
modifications.
4.2 Change Orders
With respect to any proposed changes to the Services defined by this Agreement,
the parties will cooperate in good faith to execute Change Orders in respect thereof, and will not
unreasonably withhold approval of such proposed changes. If either party causes or requests a
change that, in the reasonable opinion of the other party, materially impacts the scope of the parties'
work effort required under this Agreement, such as, but not limited to, changes in the allocation of
the resources of the Organization and of Harris applied to a task, changes in completion schedules
20
for individual tasks or for overall implementation, and changes in staffing that require a party to
provide additional work hours, the other party may propose a change to cover the additional work
effort required of it. Approval of any such proposed changes will not be unreasonably withheld
(it being acknowledged that any such material changes may require modifications to the
consideration paid, and timelines governing, the Services), and any disputes regarding changes
shall be handled initially by discussions between the parties which will be convened in good faith
by the parties to resolve any such matters in dispute. A sample change order is presented in
Schedule “C”.
ARTICLE V
REMEDIES AND LIABILITY
5.1 Remedies and Liability
(a) Termination of this Agreement shall not affect any right of action of either party
arising from anything which was done or not done, as the case may be, prior to the
termination taking effect.
(b) Harris shall indemnify, defend and save harmless Organization, its officers,
officials, employees and agents, 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 negligent acts or omissions of Harris, or any
wrongful act or willful misconduct of Harris, its officers, employees, agents or
subcontractors which relates to this Agreement, however arising. This indemnity
is only effective where (i) Organization has provided reasonably prompt notice of
the claim, action or demand to Harris; (ii) Organization has not made any
admissions of liability or settlement offers either prior to or after providing notice
to Harris of the applicable claim except with Harris’s prior written consent, except
to the extent required by applicable law, (iii) Harris has sole control of the defense
of any claim or proceeding and all negotiations for its compromise or settlement;
(iv) Organization provides reasonable assistance to Harris, at Harris’s expense
throughout the action or proceeding; (v) Organization may, at Organization’s sole
cost and expense, retain counsel of its own choosing who shall be permitted to
attend settlement conferences and hearings or other court appearances and hearings
(except where the court has specifically ordered otherwise) related to the
proceeding; and (vi) where Organization requires independent counsel due to a
conflict of interest between Harris and Organization, such counsel shall be provided
at Harris’s sole cost and expense.
The Organization's inspection or acceptance of any of Harris’ work when
completed shall not be grounds to avoid any of these covenants of indemnification.
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The provisions of this section shall survive the expiration or termination of this
Agreement.
(c) 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) BOTH PARTIES AGREE THAT, EXCEPT FOR DAMAGES ARISING
OUT OF (i) DAMAGE TO TANGIBLE PROPERTY (ii) INJURY OR
DEATH TO PERSONS, OR (iii) INTENTIONAL
MISREPRESENTAITON, 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
SERVICES AND ANY OTHER PRODUCTS, MATERIALS OR
SERVICES SUPPLIED BY HARRIS IN CONNECTION WITH THIS
AGREEMENT FOR DAMAGES FOR ANY CAUSE AND
REGARDLESS OF THE CAUSE OF ACTION, SHALL NOT EXCEED,
IN THE AGGREGATE, THE FEES PAID BY ORGANIZATION TO
HARRIS PURSUANT TO THE RELEVANT STATEMENT OF WORK.
(ii) IN ADDITION TO THE FOREGOING, TO THE GREATEST EXTENT
PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL HARRIS,
ITS AFFILIATES AND EACH OF THEIR RESPECTIVE DIRECTORS,
OFFICERS, EMPLOYEES AND SHAREHOLDERS BE LIABLE TO
ORGANIZATION FOR ANY CONSEQUENTIAL, INCIDENTAL,
INDIRECT, EXEMPLARY, PUNITIVE, SPECIAL, OR AGGRAVATED
DAMAGES WHATSOEVER, INCLUDING WITHOUT LIMITATION
FOR LOSS OF REVENUE, LOSS OF PROFITS, FAILURE TO REALIZE
EXPECTED SAVINGS, COSTS OF SUBSTITUTE GOODS OR
SERVICES, LOSS OF DATA, OR LOSS OF BUSINESS
OPPORTUNITY ARISING OUT OF OR IN CONNECTION WITH THIS
AGREEMENT.
(iii) CLAUSES (a) AND (b) SHALL APPLY IN RESPECT OF ANY CLAIM,
DEMAND, ACTION, OR PROCEEDING HOWSOEVER ARISING BY
A PARTY, IRRESPECTIVE OF THE NATURE OF THE CAUSE OF
ACTION UNDERLYING SUCH CLAIM, DEMAND, ACTION, OR
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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.
(d) Harris shall procure and maintain for the duration of the Agreement, insurance of
the types and in the amounts described in Exhibit ____ attached and incorporated
by this reference.
5.2 Allocation of Risk
The parties agree that the limited warranties, disclaimers and limitation of liability
as set out in in this Agreement are fundamental elements of the basis of bargain between Harris
and Organization and set forth an allocation of risk reflected in the fees and payments hereunder.
5.3 Remedies
Where remedies are expressly afforded by this Agreement, such remedies are
intended by the parties to be the sole and exclusive remedies of the Organization for liabilities of
Harris arising out of or in connection with this Agreement, notwithstanding any remedy otherwise
available at law or in equity.
ARTICLE VI
GENERAL
6.1 Force Majeure
Except for Organization’s failure to make any payments owing under this
Agreement when due, neither party shall be liable for delay or failure in performance resulting
from acts beyond the control of such party including, but not limited to, acts of God, acts of war
or of the public enemy, riots, fire, flood, or other natural disaster, acts of government, strike,
walkout, communication line or power failure, failure in operability or destruction of the
Organization’s computer, or failure or inoperability of any software other than the Software. Any
applicable delivery schedule shall be extended by a period of time equal to the time lost because
of any such delay.
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6.2 Confidentiality
The parties each acknowledge that each party may receive Confidential Information
from the other party or otherwise in connection with this Agreement. Each of the parties agree:
(i) this Section 6.2 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;
(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 application law or during the courses
of or in connection with any litigation, arbitration or other proceeding based upon
or in connection with the subject matter of this Agreement, provided that the
receiving party shall first give reasonable notice to the disclosing party prior to such
disclosure so that the disclosing party may obtain a protective order or equivalent
and provided that the receiving party shall comply with any such protective order
or equivalent;
(vi) not to disclose or release the Confidential Information to any third person without
the prior written consent of the disclosing party, except for authorized employees
or agents of the receiving party who have a need to know such information for the
purpose of performance under this Agreement and exercising its rights under this
Agreement, and who are bound by confidentiality obligations at least as protective
of the disclosing party’s Confidential Information as this Agreement; and
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(vii) to take all appropriate action, whether by instruction, agreement or otherwise, to
ensure that employees and third persons under the direction or control or in any
contractual privacy with the receiving party, who have access to Confidential
Information do not disclose or use, directly or indirectly, the Confidential
Information for any purpose other than for performing obligations or exercising
rights of the receiving party under this Agreement, without first obtaining the
written consent of the disclosing party.
6.3 Cancellation and Termination
(a) Cancellation of any on-site Services by Organization is allowed for any reason if
done in writing more than fourteen (14) days in advance of such Services.
Organization will be billed for any non-recoverable direct costs incurred by Harris
that result from a cancellation by Organization with fourteen (14) days or less of
scheduled on-site Services. Additionally, Organization hereby acknowledges that
cancellation of on-site Services means that such on-site Services will be
rescheduled as Harris’s then current schedule permits. Harris is not responsible for
any delay in Organization’s project resulting from Organization’s cancellation of
Services. If upon Harris arrival, the Organization is not adequately prepared or has
not completed the assigned tasks for such visit by Harris, then the Organization will
be billed 100% of the on-site fee and scheduled on-site Services can be cancelled
by Harris. If additional Services are required because the Organization was not
adequately prepared, Harris will provide a Change Order to the Organization for
the additional Services.
(b) This Agreement shall commence on the Effective Date and shall expire upon the
Completion of Services. The parties may at any time revive this Agreement upon
mutual written agreement so that it may be used in relation to a new Statement of
Work.
(c) If Harris should neglect to perform the Services properly or otherwise fail to comply
with the requirements of this Agreement, the Organization must notify Harris in
writing of such default (a “Default Notice”). Upon receipt of a Default Notice,
Harris must either correct the default at no additional cost to the Organization, or
issue a written notice of its own disputing the alleged default, in either case within
thirty (30) days immediately following receipt of a Default Notice. If Harris fails
to (i) issue a notice disputing the alleged default within such thirty (30) day period;
or (ii) correct the default within ninety (90) days following receipt of the Default
Notice, effective upon written notice to Harris the Organization may terminate the
whole of this Agreement or the applicable Statement of Work and in such case the
Organization will be responsible for payment to Harris of only that part of the fee
earned by Harris for those Services performed up to the time of communication of
such notice of termination to Harris.
(d) If the Organization should fail to comply with its obligations under this Agreement,
Harris must notify the Organization in writing of such default (a “Default Notice”).
Upon receipt of a Default Notice, the Organization must correct the default at no
25
additional cost to Harris, or issue a written notice of its own disputing the alleged
default, in either case within thirty (30) days immediately following receipt of a
Default Notice. If the Organization fails to (i) issue a notice disputing the alleged
default within such thirty (30) day period; or (ii) correct the default within ninety
(90) days following receipt of the Default Notice, Harris may terminate the whole
of this Agreement effective upon written notice to Organization and in such case
the Organization will be responsible for payment to Harris of only that part of the
fee earned by Harris for that part of the Services performed in accordance with this
Agreement up to the time of communication of such notice of termination to the
Organization.
(e) If Organization has failed to pay the fees or other amounts due in accordance with
Article 4.2 then Harris shall have the right to terminate this Agreement effective
immediately upon written notice to Organization to that effect.
(f) Notwithstanding any other provision of this Agreement, if the Organization
breaches (i) any intellectual property right of Harris; or (ii) its confidentiality
obligations under Section 6.2, then Harris shall have the right to terminate this
Agreement effective immediately upon written notice to Organization to that effect
and the license rights granted herein shall immediately terminate.
(g) Either party may terminate this Agreement effective immediately upon written
notice to the other party if the other party: (i) becomes insolvent; (ii) becomes the
subject of any proceeding under any bankruptcy, insolvency or liquidation law,
whether domestic or foreign, and whether voluntary or involuntary, which is not
resolved favourably to the subject party within ninety (90) days of commencement
thereof; or (iii) becomes subject to property seizure under court order, court
injunction or other court order which has a material adverse effect on its ability to
perform hereunder.
(h) The termination of this Agreement prior to the Completion of Services shall result
in the concurrent termination of the Support and Maintenance Agreement and of
the Software License Agreement. The termination or expiration of this Agreement
following the Completion of Services shall not affect the rights of either party in
either the Support or Maintenance Agreement or the Software License Agreement.
This Agreement shall automatically terminate in the event that the Software License
Agreement or the Support and Maintenance Agreement is terminated or expires.
Resolution of DisputesIf 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
26
construed to limit the Organizations right to indemnification under Section 5.1(b) of this
Agreement.
6.4 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
and in the case of the Organization, to:
XXX
XXX
XXX, XX, XXXXX
Attention: XXX
Telephone: XX-XXX-XXXX
Each party may change its particulars respecting notice, by issuing notice to the
other party in the manner described in this Section 6.5.
6.5 Assignment
Neither party may assign any of its rights or duties under this Agreement without
the prior written consent of the other party, such consent not to be unreasonably withheld, except
that either party may assign to a successor entity in the event of its dissolution, acquisition, sale of
substantially all of its assets, merger or other change in legal status. The Agreement shall inure to
the benefit of and be binding upon the parties to this Agreement and their respective successors
and permitted assigns.
6.6 Reorganizations
The Organization acknowledges that where a “Reorganization” occurs as that term
is defined in the Software License Agreement, the same provisions related thereto shall apply to
this Agreement. The application of a Reorganization may result in a change in the fees provided
for in these provisions.
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6.7 Entire Agreement
This Agreement shall constitute the entire agreement between the parties hereto with
respect to the matters covered herein. No other understandings, agreements, representations,
warranties or other matters, oral or written, purportedly agreed to or represented by or on 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. Organization
acknowledges that it is entering into this Agreement solely on the basis of the representations
contained herein. However, the parties agree that two other agreements are being entered into
concurrently with this Agreement which are in addition to any of the third party agreements
detailed herein. These two other agreements are the Support and Maintenance Agreement and the
Software License Agreement, each of which are separate agreements and are binding in their own
right and upon their own terms. The 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.
6.8 Section Headings
Section and other headings in this Agreement are for reference purposes only, and are in
no way intended to describe, interpret, define or limit the scope or extent of any provision hereof.
6.9 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.
6.10 Trial by Jury
Organization and Harris hereby waive, to the fullest extent permitted by applicable
law, the right to trial by jury in any action, proceeding or counterclaim filed by any party, whether
in contract, tort or otherwise, relating directly or indirectly to this Agreement or any acts or
omissions of Harris in connection therewith or contemplated thereby.
6.11 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
28
responsible for all of its own costs and expenses incident to such proceedings, including reasonable
attorneys' fees and costs.
6.12 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.
6.13 Invalidity
The invalidity or unenforceability of any provision or covenant contained in this
Agreement shall not affect the validity or enforceability of any other provision or covenant herein
contained and any such invalid provision or covenant shall be deemed modified to the extent
necessary in order to render such provision valid and enforceable; if such provision may not be so
saved, it shall be severed and the remainder of this Agreement shall remain in full force and effect.
6.14 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.
6.15 Counterparts
This Agreement may be executed in counterparts (whether by facsimile or PDF
signature or otherwise), each of which when so executed shall constitute an original and all of
which together shall constitute one and the same instrument.
6.16 Survival
Article 1, Section 3.2, Section 4.1 and Articles V and VI and any other provisions
which are required to ensure that the parties fully exercise their rights and obligations hereunder
shall survive the termination and/or expiration of this Agreement.
6.17 Competitive Bid
Organization has conducted a competitive evaluation and has concluded such
efforts with this negotiated Agreement (including any addenda hereto); therefore, this Agreement
may serve as the basis for similar agreements whereby other entities may contract separately with
Harris. Organization agrees that Harris may disclose all or any portion of this Agreement to any
of its current or prospective customers.
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6.18 Further Assurances
The parties shall do all such things and provide all such reasonable assurances as
may be required to consummate the transactions contemplated hereby, and each party shall provide
such further documents or instruments required by any other party as may be reasonably necessary
or desirable to effect the purposes of this Agreement and carry out its provisions.
6.19 Currency
All amounts specified in this Agreement shall be in United States currency.
6.20 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.
IN WITNESS WHEREOF the parties hereto have duly executed this Software Implementation
Services Agreement to be effective as of the Effective Date first written above.
N. HARRIS COMPUTER CORPORATION
Per:
Name:
Title:
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[ORGANIZATION]
Per:
Name:
Title:
31
Schedule “A”
Statement of Work
This Statement of Work (“SOW”) is subject to all terms and conditions of the “SOFTWARE
IMPLEMENTATION SERVICES AGREEMENT” (the “Agreement”) between Organization
(“Customer”), and Harris, with an Effective Date of MM/DD/YYYY. The parties have entered
into the Agreement for the provision of certain services and deliverables to Customer. All terms
of the Agreement are incorporated herein by this reference. In the event of a conflict, the terms of
the Agreement control over the terms of this SOW.
The Customer has requested the following professional services to implement iNovah®. Harris
will use its extensive cashiering experience, Customer knowledge and industry expertise to
facilitate the implementation and delivery of software and services for the Customer as defined
within this SOW. Harris, will work closely with the Customer to manage the SOW and ensure
success of the overall project.
The Services described in this SOW are based on a list of documented assumptions which have a
direct correlation to project scope and duration. Changes to project scope and/or duration
effectively alter this SOW and will be processed in accordance with the Project Change Control
(“PCR”) procedure as described herein.
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Project Scope
The following table represents a summary of the Software and Services “(Project Scope)” to be delivered
by Harris, as part of the Agreement and this SOW.
Software Module Description Assumption
iNovah Software Modules
1 iNovah ERM 100,000 Receipts Base Software Version
iNovah Integrations
Interface Module(s)
Business and Occupation Tax - Web Services Real-Time
integration
Utility Billing to DataNow (Harris Product) Realtime stored
procedures
Kiva Permitting - stored procedures (Kiva purchased by
Accela), real-time inquiry, batch update?
JDE - GL Export
Elavon Simplify
iNovah API
Additional Modules
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Professional Services In Scope (1) Delivery Approach
Consulting, Development, and Training
Business Process & Technical
Assessment
☒ Yes
☐ No
Select one:
☐ Onsite Support
☐ Delivered Remotely
☒ Combination of Onsite and Remote
Base iNovah Software Installation
and Database Configuration
☒ Yes
☐ No
Always Delivered Remotely
iNovah System Administration
Training and Configuration
Workshop
☒ Yes
☐ No
Always Delivered at the Customer’s Site
Development of iNovah Integrations
☒ Yes
☐ No
Always Delivered Remotely
Unit and System Testing
☒ Yes
☐ No
Select one:
☐ Onsite Support
☐ Delivered Remotely
☒ Combination of Onsite and Remote
End User Training
(Cashier/Supervisor)
☒ Yes
☐ No
Always Delivered at Customer’s Site as either
(select one)
☐ Harris Lead Training
☒ Customer Lead Training (i.e. Train-the-Trainer)
Onsite Production Turnover/Go-Live
Support
☒ Yes
☐ No
Select one:
☒ Onsite Support
☐ Delivered Remotely
(1) Project Deliverables and Activities are only applicable for “In Scope – Yes” Professional Services.
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Project Overview
Harris will provide cashiering software (“iNovah”) to the Customer for the collection of payments. Harris
will also provide project management, consulting, configuration, development, software installation,
training, and go-live support services as defined in SOW.
Timeline
Harris will work closely with the Customer to manage the SOW and ensure success of the overall project.
Harris expects the planning, design, development, testing, training, and go-live phases to take
approximately 180 days based on the following assumptions and the use of best practices established
through similar implementations.
Sample iNovah Project Timeline
Assumptions
The following assumptions have been made for this project:
1. The following Customer resources will be available to work on this project:
• Executive sponsor
• Project Manager – minimum of 50% of time allocated to iNovah project
• Payment processing subject matter expert
• Host system subject matter expert
• iNovah administrator
• Network administrator
2. A high-speed remote VPN connection to iNovah is available for testing and production
support.
3. The Customer is responsible for providing servers, workstations and third party software
that meet the system requirements per Schedule “A” of the Software License Agreement.
4. The Customer is responsible for the configuration of servers, workstations, networks and
third party software.
5. Harris staff will be provided with workspace for up to two people when performing onsite
services. The workspace will be equipped with a connection and access rights to the
Customer’s network.
6. Harris staff will have console access to iNovah servers when performing services onsite.
7. The Customer will provide the services described in this SOW in a timely fashion to allow
Harris to meet agreed upon schedules.
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29
Project Phase Activity
Initiate Kick-off and Planning
Assessment Workshop
Base iNovah Installation in Test
System Configuration and Admin Training
Functional and Technical Specification Creation
Requirements Sign-Off
Develop Interface Development
iNovah User Acceptance Testing
iNovah Acceptance
End User Training
Production Cutover
Transition iNovah Go-Live & Post Go-Live Support
Indicates onsite activity with Customer Resources
Indicates a Key Milestone requiring Customer Agreement to move forward
Week
Analyze
& Design
Test
Deploy
35
8. To enable an interface to iNovah, the Customer or Customer’s vendor will provide an
application programming interface (API) to all applications to be interfaced.
9. The Customer is responsible for working with the Customer’s Staff and/or the Customer’s
Vendor to provide Harris the latest versions of technical documentation / specifications,
testing material, and resources.
10. The Customer will provide a test and production environment for iNovah. Note: An
additional QA/training environment is recommended for larger projects.
36
Harris Deliverables
Based on Project Scope, Harris will provide the following standard products and services:
Phase Deliverable Description
Initiate Project Kick-Off Initial meeting to introduce project team
members, objectives, and next steps
Analyze and
Design
iNovah Project Plan Final iNovah Project Implementation plan
Assessment Workshop Meeting at Customer facilities to identify
business requirements
Functional and Integration
Specifications
Documented requirements for iNovah
configuration and integration development
iNovah Installation in Test
Environment
Latest iNovah software version, without
modifications, in a test environment at
Customer facilities
Configuration Workshop Harris lead Configuration Workshop for up to
(8) Customer representatives (subject matter
experts and iNovah administrators.)
System Administration Training Harris lead System Administration class for up
to eight (8) Customer representatives (iNovah
administrators.).
Develop iNovah Integrations Delivery of in scope iNovah Integrations per
specifications
Deploy iNovah End-User Training End-user training for iNovah users per Project
Scope section of this SOW
Transition Production Support Production support at iNovah production go-live
37
Project Phase Activities
Based on Project Scope, Harris’ and the Customer will responsible for completing the following activities.
Activity
Service Responsibility
Harris The
Customer Shared
All Phases
Overall Project Management X
Overall Change Management X
Managing all Harris personnel assigned to the project X
Managing all Customer’s personnel assigned to the project X
Managing Customer’s Vendor resources; including escalation X
Coordinating schedule changes with the Harris Project Manager X
Managing the project schedule and reporting variances X
Managing the activities assigned to Customer in this SOW X
Coordinating and participating in project related calls and meetings X
Providing weekly progress reports to the Customer Project Manager X
Reviewing and providing feedback on weekly progress reports X X
Coordinating delivery of all Hardware and Software X
38
Initiate Phase
Finalize Harris resource plan and delivery resources X
Finalize the Customer’s resource plan and delivery resources X
Coordinate the project kick-off meeting X
Define project governance structure and align implementation
methodology X
Share Customer’s Project Plan, if applicable. (i.e. iNovah rollout in
conjunction with EPR deployment) X
Create the iNovah Project Plan X
Develop and Publish Assessment Agenda X
Conduct Kick-off Meeting X
Schedule resources and manage logistics for Assessment Workshop per
agreed upon schedule X
Peripheral hardware, identified in the Agreement, delivered to
Customer’s facilities X
Provision VPN access to Test Environments X
Analyze & Design Phase
Lead workshops to gather design decisions X
Attend workshops with appropriate resources with authority to make
design decisions X
Ensure appropriate Customer representation in workshops X
Make key design decision decisions around process and configuration X
Documenting configuration requirements in functional specifications X
Documenting recommendations for site preparation and infrastructure
changes X
Coordinating delivery of all hardware and software with the Customer X
39
Verifying acceptance of all delivered products and services X
Coordinating the delivery of all Software warranty services and
Hardware Support Services X
Provide VPN access to the production system for access by Harris (if
allowed) X
Coordinating the collection of information for tailoring, customization
and configuration requirements X
Provide documented Acceptance Test Plan X
Reviewing an Acceptance Test Plan provided by the Customer X
Provide the business process and technical requirements for iNovah
solution X
Develop Phase
Conduct System Administration class at the Customer’s facility X
Attendance of Customer’s representatives to the System Training class X
Conduct System Configuration Workshop class at the Customer’s
facility X
Attendance of Customer’s representatives to the System Configuration
Workshop class X
Provide printed copies of reference or training materials X
Modify software routines within iNovah to handle input devices
included in the functional specifications X
Modify software routines within iNovah to call interface routines
included in the technical specifications X
Input all parameters in iNovah maintenance tables and configuration
files required to create the configuration included in the Functional
Specification
X
Provide technical specifications for each type of callable XML based
Web Services X
Aid in design of callable Web Service(s) to retrieve and post the
Customer’s account information from XML based documents supplied
by the Customer to support two-way interfaces
X
40
Design and code other custom features for iNovah as defined in the
functional and technical specifications X
Design and code callable interface API to retrieve the Customer’s
account information from existing applications X
Design and code callable interface to support post payment information
to the Customer’s accounts for batch interfaces X
Test Phase
Install all Customer provided hardware and software for testing and
verify that the environment is working properly X
Work with the Customer to install iNovah at the Customer’s facility for
acceptance testing X
Verify that all Hardware and Software is properly installed at the
Customer’s facility and ready for acceptance testing X
Unit test each modification to iNovah X
Perform system tests on the delivered version of iNovah to ensure that
the system performs standard functions as expected and meets all
requirements included in the functional and technical specifications
X
Coordinate testing activities with the Customer’s personnel and third
party contractors/vendors X
Perform all tests documented in the Acceptance Test Plan X
Assist the Customer in performing the Acceptance Test Plan X
Document and manage any deficiencies found during the acceptance
tests X
Maintain issues list for all iNovah defects reported during the testing
phase X
Review the results of acceptance testing and correct documented
deficiencies X
Retest corrected defects X
Acceptance of delivery of iNovah X
Deploy Phase
41
Coordinating training activities with the Customer’s personnel, third
party contractors X
Conduct End User Training as defined in Project Scope section of this
SOW X
Provide All training materials and documentation on electronic media X
Provide a training room (appropriate for number of installed and
networked personal computers) with access to test or training servers X
Provide a computer projector and screen for training classes X
Any required iNovah peripheral hardware for training classes X
Providing desktop training for all cashiers and other users that do not
have experience with the recommended Windows operating system or
Internet Explorer computer applications prior to Harris arrival
X
Ensure attendance of cashiers and supervisors during the end user
training class X
Ensure end users participation in practice the exercises X
Provide printed copies of reference or training materials X
Update the functional and technical specifications (if required) to reflect
all modifications to requirements, configuration, and schedule as agreed
via the PCR Process
X
Finalize the production roll out schedule X
Install all required network cabling, hardware and software X
Define remote support process for Harris Client Services Team. X
Verify that VPN access to the production system works properly (if
provided) X
Ensure that all site preparations are completed X
Install all computer hardware and software for the production X
Verify that all hardware, software and networks are working properly X
42
Assist the Customer in troubleshooting installation problems related to
installing iNovah in production environment X
Establish production user names and password on iNovah X
Ensure that all staff members are appropriately trained X
Verify acceptance of first production use of iNovah X
Provide deployment support as defined in Project Scope section of this
SOW X
Assist the Customer in monitoring the performance of iNovah and
identifying any deficiencies X
Provide trained supervisors to assist new users with iNovah X
Transition Phase
Transition the Customer’s project to Harris Client Services Team X
Document any problems that occur and provide information on any
deficiencies in iNovah to Harris Client Services X
Request acceptance of ‘Live’ status of iNovah once the System has been
in production at any location for 30 days X
Provide acceptance of the ‘Live’ status of iNovah once the System has
been in production at any location for 30 days X
Hardware and Software Installation
Provide recommendations for server hardware, personal computers, and
network settings to the Customer X
Deliver peripheral hardware, identified in the Agreement, to the
Customer’s facilities X
Coordinate installation services with the Customer’s personnel, third
party contractors X
Provide assistance with installation of provided peripheral hardware on
personal computers in testing environment at the Customer’s Facilities X
At least two (2) servers (virtual or physical) per environment, meeting
the hardware prerequisites provided by Harris X
43
Personal computers, for all cashiering and supervisory workstations,
meeting the hardware prerequisites provided by Harris. X
Computer network connectivity between all personal computers, servers
and other computers where interfaced applications reside X
Backup plan for all Harris products and databases X
Universal Power Supply (UPS) equipment for the computer servers X
Installation and maintenance of all the Customer’s provided hardware X
iNovah delivered to the Customer’s facilities X
Installation of iNovah on servers and iNovah Client on one (1)
workstation in the Customer’s Test Environment X
Installation of third party Software, provided by Harris, on servers
and/or personal computers in the test environment at the Customer’s
facilities
X
Microsoft operating system software for all servers and personal
computers per recommendations. X
Microsoft SQL Server software per recommendations for the database
server X
Computer network software supporting IP communications between all
personal computers, servers and other computers where interfaced
applications reside
X
Backup software for the computer servers X
Virus protection software for all computer servers and personal
computers X
Installation and maintenance of all the Customer’s provided software X
Production environment software installation X
44
Project Governance
Project Management Structure
Adhering to a formal project management structure is an essential component of a successful
implementation, with reciprocal communication being the most fundamental element of the governance
process.
Harris recommends a Project Structure that empowers the Core Project Team with the responsibility of
conducting daily project operations, allows Executive Sponsors the ability to monitor overall project
progress through scheduled reviews, as well, as providing a resolution path for impasses or decisions that
have the potential to affect the implementation timeline and/or scope.
Recommended Project Management Structure
Steering Committee
The Steering Committee is the top escalation point for the project and performs the following functions:
• Provides a controlling mechanism for overall project progress and Change Orders
• Meets during project kick-off and at defined intervals during Implementation
45
Members include:
• The Customer’s Executive Sponsors
• Executive Sponsors at Harris
• Project Managers (as needed)
(i) Contract Level
The person or persons responsible for the contract side on the Customer side performs the
following functions:
• Owns the project Change Order process
• Manages any contract aspect of the project
Members include:
• Harris Vice President of Professional Services or Vice President of Sales
• Responsible Commercial/Relationship owner at the Customer
(ii) Core Project Team
Harris and Customer Core Project Teams are responsible for successfully delivering the project per the
SOW and perform the following functions:
• Participates in all project phases
• Ensures that the delivered solution meets internal stakeholder expectations
• Responsible for communication and expectation management with project stakeholders
Members include:
• Full program and delivery teams
The Customer’s Project Manager will review the progress reports created by the Harris Project Manager
and provide feedback to resolve issues and changes.
Project Change Control
A defined process for controlling scope issues and change requests must be in place and followed to help
ensure that proper visibility is given to change requests and any associated approvals required.
Items that modify the scope of work will be reviewed by the Harris Project Manager to determine if there
is an impact to the cost or timelines for this project. Out of scope services will be charged as outlined in
Rate Card listed within the “Agreement”. Any change must be documented in a mutually executed Project
Change Request (PCR) Work Order.
The following change control procedure shall apply to this SOW:
46
1. Project Resource(s) identify new or change in requirements and escalate to the respective Project
Manager.
2. Harris and Customer’s Project Managers work together to gather required information to
determine if a Change Order is required.
3. Project Managers determine if a Change Order is valid
a. If no, Project Resources will be informed and the change management process ends.
b. If yes, Harris Project Manager will facilitate the creation of the Change Order and
promptly provide it to the Customer’s Project Manager.
4. Customer Project Manager will review the proposed Change Order, with appropriate Customer
resources, for content and completeness, and accuracy.
5. If proposed Change Order requires changes, Customer’s Project Manager and Harris Project
Manager will collaborate to consider necessary modifications.
6. Change Orders must be reviewed and approved by the Contract Level of the Project Steering
Team.
7. If approved by Project Steering Team, the appropriate authorized Customer signatory may sign
the Change Order; provided that notwithstanding anything to the contrary in this SOW, no
Change Order shall bind Customer unless approved expressly and in writing by the authorized
Customer signatory or his/her designee.
8. The Customer Project Manager will inform the Harris Project Manager and process required
paperwork for any executed Change Order.
9. The Customer Project Manager and Harris Project Manager will perform administrative project
tasks associated to the project and inform the Project Resources accordingly.
47
Schedule “B”
Fee Structure and Payment Schedule
The total fees payable under this Software Implementation Services Agreement shall not exceed
$108,000.00, which amount excludes any costs that may be authorized in accordance with
Section 4.1 of the Agreement. Implementation services will be paid in accordance with
milestone payments as provided below, which schedule reflects the Organization implementing
all interface and additional modules listed under the Project Scope. Milestone payments will be
adjusted accordingly for modules not selected during the project stage.
Professional Services Rate Card
Professional Services Rates Hourly Rate
Project Manager $220.00
Developer $220.00
Business Analyst $180.00
Trainer $180.00
DBA / System Engineer $180.00
Implementation Services Payment Schedule under this Agreement
50% of Project Initiation Phase Due Upon Start $5,400.00
50% of Project Initiation Phase Due Upon Complete $5,400.00
50% of Analyze and Design Phase Initiation Due Upon Start $13,500.00
50% of Analyze and Design Phase Initiation Due Upon Complete $13,500.00
50% of Develop Phase Initiation Due Upon Start $21,600.00
50% of Develop Phase Initiation Due Upon Complete $21,600.00
50% of Test Phase Initiation Due Upon Start $8,100.00
50% of Test Phase Initiation Due Upon Complete $8,100.00
50% of Deploy Phase Initiation Due Upon Start $2,700.00
50% of Deploy Phase Initiation Due Upon Complete $2,700.00
50% of Transition Phase Initiation Due Upon Start $2,700.00
50% of Transition Phase Initiation Due Upon Complete $2,700.00
Travel and Lodging – 8 trips @ $2000 per trip (billed as incurred) $16,000.00
Total $124,000.00
48
Hardware Fees
Milestone Description Value QTY Total
Cognitive/TPG A776 USB/Serial Receipt/Slip/
Printer(4) Black no MICR
$560.00 8 $4,480.00
Canon CR-120 Imager with OCR and Barcode $895.00 8 $7,160.00
APG Cash Drawer with till and locking cover(6) $258.00 8 $2,064.00
APG Cash Drawer Interface Cable $10.00 8 $80.00
Tax 10% 1 $137.84
Freight F.O.B. Origin (estimate) N/C N/C
Total Hardware $13,921.84
49
Schedule “C”
Sample Form Change Order
Change Order
(a) Contact & General Information
Client Date
Client
Contact
Software
Applicati
on
Client Email
(b)
(c) Description of Work
Attachments:
(d) Client Approval
000 $0.00
Chargeable Hours Rate Amount
000 000
Non-Chargeable Hours Total Hours
Client Signature Date
Your signature serves as an acceptance of the “Amount” listed above as it relates to the
description of work contained in this Change Order. Your signature also indicates you have
reviewed and agree to the scope of work as detailed in any accompanying enclosures or
50
attachments. This signed document indicates that you have provided all of the accurate
information necessary to produce the work as stated in the above Change Order.
(e) Internal Use Only
Customer
#
Application
#
Originated by
#
PO# 00000
00
51
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52
SOFTWARE LICENSE AGREEMENT
THIS SOFTWARE LICENSE AGREEMENT made as of the ____ day of ________,
_______ (“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.
53
(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.
54
(k) “Release” means an Update and an Upgrade.
(l) “Required Programs” and “Required Hardware” have the meaning set out in Section
3.03.
(m) “Site” means solely at the production environment described in Schedule “A” and at an
unlimited number 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.
(t) “User” means any employee of Organization or any of Organization’s agents who have
been authorized by Organization, in advance of the agents’ access to the Software, pursuant
to the terms of this Agreement to have access to the Software.
55
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,
56
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
57
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
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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.
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(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
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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 substantially 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.
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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
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advance notice; and the general use of the Software by Organization. If Harris determines
that Organization’s hardware is not of sufficient quality, condition and repair, Harris shall
notify Organization in writing of the hardware deficiencies. Organization will strive to
remedy any hardware deficiencies within 30 days of 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.
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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
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(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.
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(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;
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(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
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(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
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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:
XXX
XXX
XXX, XX, XXXXX
Attention: XXX
Telephone: XX-XXX-XXXX
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
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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.
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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 Invalidity
The invalidity or unenforceability of any provision or covenant contained in this
Agreement shall not affect the validity or enforceability of any other provision or covenant herein
contained and any such invalid provision or covenant 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
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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
Section 8.16 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.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 Majeure
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.
IN WITNESS WHEREOF the parties hereto have duly executed this Agreement
to be effective as of the date first written above.
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N. HARRIS COMPUTER CORPORATION
Per:
Name: Jeffrey Sumner
Title: Executive Vice President
N. HARRIS COMPUTER CORPORATION
Per:
Name: Todd Richardson
Title Chief Financial Officer
[ORGANIZATION]
Per:
Name:
Title:
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Schedule “A”
Description of Software
Covered Programs
Software Module Description Assumption
iNovah Software Modules
1 iNovah ERM 100,000 Receipts Base Software Version
iNovah Integrations
Interface Module(s)
Business and Occupation Tax Web Services Real-Time integration
Data Now (Utility Billing/Harris Product) Real-time stored procedures
Kiva Permitting - stored procedures (Accela), Real-time inquiry, batch update.
JDE GL/ Export
Elavon Simplify
iNovah API
Additional Modules
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Schedule “B”
License Fees and Payment Schedule
iNovah Software License and Modules
1 iNovah ERM - Up to 100,000 Annual Receipts,
Unlimited Users, Unlimited Workstations $50,000.00
Interface Module(s) – KENT WA Bundle
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
$85,000.00
Interface Modules Multi Interface Discount $(37,500.00)
TOTAL LICENSE COSTS $97,500.00
Payment Schedule
Milestone Description Value
Final Contract Executed $48,750.00 50% of Total License Fees
Installation of Base iNovah product
in test environment
$24,375.00
25% of Total License Fees
Completion of deployment and Go
Live $24,375.00 25% of Total License Fees
Total $97,500.00
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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.
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Schedule “D”
System Software
As of the Effective Date of this Agreement, no System Software or Hardware is being
provided to Organization.
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SUPPORT AND MAINTENANCE AGREEMENT
THIS SUPPORT AND MAINTENANCE AGREEMENT (the “Agreement”)
made as of the ____ day of ________, _______ (the “Effective Date”).
BETWEEN:
SYSTEM INNOVATORS, A DIVISION OF N. HARRIS
COMPUTER CORPORATION
(“Harris”)
- and -
City of Kent, WA
(“Organization”)
RECITALS
1. Harris has licensed Software to Organization pursuant to a software license agreement
entered into between the parties on the same date as the Effective Date (the “Software
License Agreement”) and shall provide related services pursuant to a software
implementation services agreement dated the same date as the Effective Date (the
“Software Implementation Services Agreement”);
2. The Organization wishes to receive support and maintenance services related to the
Software; and
Harris has agreed to provide the support and maintenance services related to the Software
on the terms and conditions set out in this Agreement;
NOW THEREFORE, in consideration of the mutual covenants set out in this Agreement
and for other good and valuable consideration (the receipt and sufficiency of which is hereby
acknowledged), the parties agree as follows:
1. Definitions. Throughout this Agreement, the following words and expressions shall have
the following meanings. All defined terms not otherwise defined herein shall have the
meaning ascribed to them in the Software License Agreement.
(a) “Update” means a minor release of the Software which includes minor published
modifications or enhancements to the Software related to a bug fix, minor
additional functionality or legislative changes. An Update is designated by a
change in the right-most digit in the version number (for example, a change from
X.1 to X.2).
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(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 Go-Live in production environment(the “Start Date”) to the “Renewal Date”,
which is defined as being January 1. 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.
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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 and Updates or Upgrade 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.
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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;
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(iii) Organization (i) becomes insolvent; (ii) becomes the subject of any
proceeding under any bankruptcy, insolvency or liquidation law, whether
voluntary or involuntary, which has not been resolved within ninety (90)
days of commencement thereof; or (iii) becomes subject to property seizure
under court injunction or other court order which has a material adverse
effect on its ability to make payments when due hereunder; or
(iv) Organization has breached or violated any obligations of confidentiality or
any intellectual property or proprietary right of Harris.
(b) This Agreement shall automatically terminate in the event that the Software License
Agreement expires or is terminated, or in the event that the Software
Implementation Services Agreement is terminated prior to the Completion of
Services, as that term is defined therein.
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
OTHERWISE, REGARDING THE SUPPORT AND MAINTENANCE SERVICES OR
83
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.
84
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
MISREPRESENTAITON, 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
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
85
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.
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.
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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 Majeure. . 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.
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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. HARRIS COMPUTER CORPORATION
Per:
Name:
Title: Executive Vice President
Per:
Name:
Title: Vice President, Finance
City of Kent WA.
Per:
Name:
Title:
Per:
Name:
Title:
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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
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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.
1 Description of Support Services
1.1 Support Request Flow
System Innovators Standard Support Request Flow
Le
v
e
l
1
Su
p
p
o
r
t
Cl
i
e
n
t
Le
v
e
l
2
Su
p
p
o
r
t
Le
v
e
l
3
Su
p
p
o
r
t
Client contacts
support team
with request
Opens case Provides
response?
Investigates
question or
issue
Resolved?
Updates case
and assigns to
L2 queue
Reviews case
and investigates
further
Provides
response?
Resolved
NO
YES
NO
YES
Updates case
and assigns to
L3 queue
NO
NO
Reviews case
and investigates
further
Provides
resolution?
Update case and
assign to L2
Defect or
New
Functionality
?
YES
NO
TFS Bug TFS Change
RequestDEFECTUpdate case and
assign to L2
NEW FUNCTIONALITY
EndStartYES
YES
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
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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
State and/or Federal mandated changes (charges may apply)
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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)
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“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:
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Severity Levels Definition
Severity 1 The total unavailability of the production application, or a repeatable malfunction within the production
application causing impact to business operation if 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 1, Severity2, or Severity 3.
Questions about documentation
Requests for documentation or information
Questions about products
Aesthetic issues
3 Service Levels
3.1 Response Time
Severity Levels Response Time
Severity 1 1 - 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.
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Harris does not guarantee case resolution during the response time, only acknowledgement
of the support request.
4 Client Designated Support Contacts
The client will assign two (2) named resources, a primary and a backup, to be client
designated support contacts responsible for:
1. 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), remote access server (RAS)
5 Contact Information and Support Hours
5.1 Contact Information
Phone 800.963.5000 x2
Email clientservices@systeminnovators.com
5.2 Support Hours
Monday thru Friday 8am – 8pm Eastern Time
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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
4th 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
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IT/Finance System Requirements
Requirements/Features:
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1
Financial Transactions / Point-of-Sales
1 Solution supports and allows for segregation of duties for individual staff based on
their roles. A staff member should not have control over BOTH 1) City asset [monies]
AND the related accounting records.
Standard
Yes. All security permissions in iNovah are based on user and group
roles. In addition, iNovah can segment entire departments and
only police to take PD payments, Public Works to take permits,
while allowing finance and auditors full access, etc.
Standard Standard
2 Solution records ALL transactions immediately once completed and once recorded,
cannot be deleted or altered from the Solution.
Standard
All system activities such as transcations, user actions, config
changes, drawer opens, imports, integration data is loggged our
audit log. The audit log cannot be deleted.
Standard Standard
3 Solution allows authorized staff to void transactions. Voided transactions can be
independentaly authorized and monitored.
Standard
Voids can be set to require a supervisor override. All voids are
tracked and audited. There are specific void reports that are out of
the box.
Standard Standard
4 Solution reports should accurately report ALL transactions and include details (ex:
customer name, account number, transactions date/time; transaction amount;
purpose/description/mode of payment).
Standard
iNovah is a COTS system (commercial off the shelf) that is highly
configurable. You can determine what fields/data should be
captured. Payment screens are configurable and editble by the City
without programming using our included Form Editor tool.
Optional
Requires Customization
Optional
Requires Customization
5 Solution supports a direct interface and/or reporting tools to allow staff to
electronically export and import transactions into the city's JDE financial Solution.
Use of journal entries supported by appropriate reports is acceptable but not
preferred. Transaction information should integrate in a summarized format with
detailed transactions reports available in the point-of-sale solution. Format and file
specifications to be provided by the city.
Standard
This is common in almost every one of our clients. We have JDE
integrations in our client base now. GL Tender Details report is a
standard report in iNovah. It provide drill down capability from the
summary GL account data right down the transaction level without
leaving the report. The report also provides various grouping
operations. iNovah comes with over 110 standard reports. An
export to JDE GL has been proposed
Requires Customization Optional
Requires Customization
6 Interface between the point-of-sale and application should be electronic and support
pass-thru user authentication.
Standard
Interfaces between iNovah and host account receivable systems
are performed through application programming interfaces. No
need to manage user authentication in the host system.
Requires Customization Not Available
7 Have Information Technology and Finance department staff reviewed the proposed
solution and signed-off in hard copy?
8 Does the solution require the payment of a convienence fee and if so, how will the
conveinence fee be determined or calculated? (Please note, that any customer
payed convenience fee will need to be reviewed and approved by city administration).
Standard
Convenience fees/Services fees are configurable. The fees are set
by your agreement with your processor and we configure the fee in
iNovah. Fees can be set to be a percentage, flat or custom. Fees
must be shown separately on receitps and your customers must be
given the opportunity to cancel the transaction if they do not wish
to pay the fee. All of this is supported through configuration. We
can even permit the City to configure fee messages on the credit
card terminal as well as determine if the Customer should sign both
both fee and service payment or just once for both. There are a lot
of options for our clients when using service fees.
Requires Customization Not Available
9 Will the payments be directly deposited into a city held bank account?Optional (Payment Processor)Optional Optional
10 If payments are not deposited into a city held bank account, will the payments be
deposited to an authorized Washington Public Depository (Chapter 39.58 RCW)?
N/A N/A N/A
11 If payments are not deposited into a city held bank account, will the payments be
transferred into a city held bank account in a timely manner (preferrably 1 day, no
longer than 2 to 5 business days)?
N/A N/A N/A
12 Can the solution provide the most recent SAS 70, SSAE 16, AUP, Security, Disaster
Recovery, PCI, GLBA, NACHA, PIN, TG3 or similar reports?
3.2 PCI DSS
13 Can the solution vendor provide proof of insurance and/or surety bond?Standard Standard Standard
14 Can users/agency configure custom reports or data extracts?Standard
Agencies with MSFT SSRS reporting capabilites can create reports
and include them in the system. We have a built in adhoc query
module that is wizard driven and can be used to create custome
queries. These can be shared. Permissions for reporting apply to
custom/ad hoc queries.
Requires Customization Requires Customization
15 Does the point-of-sale and related equipment comply with the latest PCI and credit
card industry requirements (TLS, SHA, strong cypers, etc.)?
Standard
16 Does the point-of-sale system allow for the Interchange Fees tied to the transactions
to be passed along to the paying customer?
Standard Requires Customization Not Available
User Authentication / Security
1 Does the solution integrate with Active Directory for user authentication?Standard
SSO through AD integration is supported.
Not Available Not Available
2 If hosted solution and does NOT integrate with Active Directory, does the solution
support single sign-on?
Proposed not hosted Not Available Not Available
3 If the solution does not integrate with Active Directory, does it support complex
password requirements and allow the site to configure the password requirements?
Current standards require:
1) at least 8 characters in length,
2) 1 or more Upper Case characters,
3) 1 or more Lower Case characters, and
4) 1 or more Numeric or Special Character
Standard
password management is compliant and driven by the PA-DSS
requirements.
Standard
Requires customization to
meet requirements
Standard
Requires customization to
meet requirements
4 If the solution does not integrate with Active Directory, does it support password
changes every 90 days and remember the past 10 password used?
Standard
Last 8 Passwords
Requires Customization Requires Customization
5 If the solution does not integrate with Active Directory, does it support locking the
account after 3 failed login attempts?
Standard
5 failed login attempts
Standard Standard
6 If the solution does not integrate with Active Directory, does it support user passwords
being reset and require the user to specify a new password upon the next login to the
solution?
Standard Standard Standard
7 If the solution does not integrate with Active Directory, does it support automatically
disabling user accounts that have not been logged into for a configured amount of
time (such as 90 days)?
Standard Requires Customization Requires Customization
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Records Retention / Public Records Requests
1 If solution is hosted, can the city report/export all of the resident data in the system for
city record retention purposes?
On premise proposed.Optional
Requires Customization
Optional
Requires Customization
2 If hosted solution, ability to report/export all resident data in system for preservation of
records?
On premise proposed.Optional
Requires Customization
Optional
Requires Customization
4 Will the system support standard or customizable reporting that will allow users to
specify criteria in order to retrieve all relevant records in support of a public records
request? Please describe.
Standard
There are many ways to access data in the database - there is an
entire section of reporing dedicated to research. The methods that
that may be employed to find data include: Using a find payments
capability, browsing payment data, using our 110+ standard
reports, using the Ad hoc query module to search. Most of the
reports are parametric allowing users to enter date parameter, and
select other grouping options to retrieve the data. Report data can
be exported in six different formats including, pdf, csv, excel and
word.
Optional
Requires customization to
meet requirements
Optional
Requires customization to
meet requirements
Web-based Solutions
1 Solution supports the currrent/latest versions of major browsers?Standard Internet Explorer 11 and 9 supported Standard Standard
2 If solution is site-hosted, does the architecture support currrent IIS versions?Standard Standard Standard
3 Does the solution support IOS-based devices?Not Available Not Available Not Available
4 Does the solution have and support an API/SDK for business system integrations?
Open application plug ins needed for:
Utility Billing (DataNow)
Licensing/Permitting (Kiva/FileLocal/State Business Licensing Service/B&O Tax
Portal/Laserfiche Imaging System/JDEdwards)
Standard
API that provides access to any integrations created to host
accounts receivable. We have discussed the integrations to the
systems identified and our API with the City. iNovah is an
Enterprise Revenue Management Hub that integrates to host AR
systems to inquire on amounts owing, take a payment and update
the host with the payment information. We are of course propsing
a GL update through a batch (file export proess). This approach is
standard across our client base. iNovah has been integrated over
700 times to almost every accounts receivable system used by
modern governments today.
Requires Customization Requires Customization
Database for Solution
1 For on-site solutions, is the solution certified to work with currently supported SQL
Server versions?
Standard
In Q1 of every year, add support for newly released versions of
Microsoft environments (sqlserver, web server, windows, etc.)
Standard
When applicable
Standard
When applicable
Operating Systems
1 For on-site solutions, is the solution certified to work with currently supported versions
of Microsoft Server operating systems?
Standard Standard No
2 For on-site solutions, is the solution certified to work with currently supported versions
of Microsoft workstation operating systems?
Standard Standard No
Certification and Compliance
1 List the security certifications or independent audits the solution has successfully
completed and achieved. These may include, but are not limited to: HIPAA, PCI,
SSAE 16, ISO 27001/2, FRPA, NIST 800-63 and 64, FTI, CJIS, or others.
Standard PCI
PA-DSS validation to Version 3.2
Requires Customization
Based on Customer
Requirements
Requires Customization
Based on Customer
Requirements
2 Describe the solution’s capabilities to maintain security and control for documents that
are shared or exported. Examples may include time-limited access, revocation and
printing
Standard
Max idle time based on PCI rules for auto logout is 15 minutes.
Requires Customization
Based on Customer
Requirements
Requires Customization
Based on Customer
Requirements
3 Describe how the solution supports logging of user activity in local system logs Standard
See description for requirement 2. - Cashiers can be monitored in
real-time. Everything happening in the system is recorded to the
audit log including login attemps, successful logins, cash drawer
opens, config changes, overrides, reason codes are required for
many functions (voids, overrides, approvals etc.)
Standard
Reports
Requires Customization
Based on Customer
Requirements
Business Continuity / Disaster Recovery / Performance
1 If hosted solution, is there a redundant system in place in order to ensure high
availability and operation?
Standard
Although we are not proposing hosted. iNovah supports the
Microsoft High Availability architecture capabilities
Standard Standard
2 If hosted solution, mitigation plan for worst case scenario (disaster recovery) and time-
frame for recovery?
On premise proposed. Responsibility of the City.Standard Not Available
3 Describe the solution's ability to encrypt or manage storage of data at-rest / inactive.Standard Not Available Not Available
4 Per the vendor's recommended server architecture, please describe the number of
servers and their associated use/roles for the solution proposed. Please provide and
diagrams and related server requirements.
Standard
Regional Municipal Vendor References
1 Please provide lists and contact information for agencies (preferably government and
city customers) in Washington or Northwestern States
Seattle/Tacoma/Spokane/Peoria, KS Edmonds/Tumwater/Walla
Walla
Bremerton/Renton/Puyallup
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