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HomeMy WebLinkAboutOpening of Proposals - Utility Billing System - Advanced Utility Systems - Part 3ADVANCED UTILITY SYSTEMS 9. Terms and Conditions Vendor will provide standard agreements for all software services and maintenance and support needed to provide the intended solution. The City reserves the right to reject any supplemental terms that are requested by the Vendor but deemed by the City not to be in its best interest. Terms and conditions are excluded from the total page count. The following are the standard agreements for Advanced Utility Systems, a division of N. Harris Computer Corporation. Software License Agreement City of South Bend, Indiana 76 SOFTWARE LICENSE AGREEMENT THIS AGREEMENT inade as of the day of _, BETWEEN: N. HARRIS COMPUTER CORPORATION ("Harris") - and - [ORGANIZATION] ("Organization") RECITALS Harris owns the Software (as defined below); 2. The Organization wishes to acquire a license to utilize the Software 3. Harris wishes to grant the Organization a license to utilize the Software. 4. 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, a Support and Maintenance Agreement and a Software Implementation Services Agreement. NOW THEREFORE, in consideration of the mutual covenants set out in this License 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 LOI Definitions Throughout this License 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. (b) "Completion of Services" shall have the definition ascribed to it in the Software Implementation Services Agreement. (c) "Concurrent User License" means a license that restricts the total number of Users who can access the Software at any one time to the number detailed in Schedule "A". (d) "Confidential Informations" means, with respect to a party to this License Agreement, all information or material which: is (A) marked "Confidential," "Restricted," or "Proprietary Information" or other similar marking, (B) known by the parties to be considered confidential or proprietary, such as the Software, 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; or (iv) is independently developed by the receiving party without reference to or use of the other party's Confidential Information. (e) "Designated Computer System" shall mean the Organization's platform and operating system environment which is operating the Software. (f) "Documentation" means user guides, operating manuals, educational materials, product descriptions and specifications, technical manuals, supporting materials, and other information regardless of the media on which it is provided. (g) "License" means the license granted to the Organization pursuant to Section 2.01 hereof and includes both a Concurrent User License and a Site License. (h) "License Agreement" means this Software License Agreement. (i) "Release" means an Update and an Upgrade. 0) "Required Programs" have the meaning set out in Section 3.03. (k) "Site License" means a license that restricts the Software such that it can reside in one production environment and unlimited non production environments. (1) "Software" means the software products that are listed in Schedule "A" and to which the License applies. (m) "Update" means a minor modification or enhancement to the Software related to a bug fix, or minor additional functionality. (n) "Upgrade" means a major overhaul of the Software which is a complete new version of the Software. -2- (o) "User" means any employee of Organization or any of Organization's agents who are authorized by Harris pursuant to the teems of this License Agreement to have access to the Software. Section 1.02 Currency Unless otherwise specified, all references to amounts of money in this License Agreement and the related Schedules refer to U.S. currency. Section 1.03 Schedules The Schedules described below and appended to this License Agreement shall be deemed to be integral parts of this License Agreement. Schedule `°A" - Description of Software Schedule "B" - License lees & Payment Schedule In the event of any conflict or inconsistency between the terms and conditions in the main body of this License Agreement and the terms and conditions in any Schedule, the terms and conditions of the main body of this License Agreement shall control. ARTICLE II. SOFTWARE LICENSES Section 2.01. Grant of Licenses (a) Subject to the teems and conditions of this License Agreement, Harris hereby grants to the Organization a personal, non-exclusive, non -transferable and limited right and license to use the Software in object code format on the Designated Computer System (the "License") in consideration for the payment of the License fees. All releases installed by Organization are subject to this License. (b) Any Software furnished by Harris in machine-readable form may be copied in whole or in part by Organization for use oil 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. To the extent that any temporary files associated with the Software are created during such use on terminals those temporary files are perrnitted under this License but only for such time that the temporary files are actually required. Organization agreesthat 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. (c) Any License granted under this License Agreement permits the Organization to: (i) use the Software for its Municipal and corporate purposes including, but not limited to, performing testing, disaster recovery, disaster testing, training, archival and backup as the Organization deems necessary, and (ii) use, copy and modify the Documentation for the purpose of creating and rising training materials relating to the Software, which training _3_ 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 any such independent contractors are bound by obligations of confidentiality and have been approved by Harris in advance of the independent contractors' access to the Software. The Organization shall be responsible for (i) all of the actions of and (ii) any misuse of the Software by any independent contractor. (d) The Organization may duplicate Documentation, at no additional charge, for the Organization's permitted uses so long as all required proprietary markings are retained on all duplicated copies. (e) The Software is licensed to the Organization on multiple levels. The Software is licensed on a "Concurrent User License" and "Site License" basis as set forth in Schedule "A". (i) A Concurrent User License permits the Organization to use the Software on the Designated Computer System (including all environments such as training, disaster recovery, etc.) provided that the number of Users who may be simultaneously using the Software is limited to the number of Concurrent Users specified for such Software on Schedule "A". A User is further defined as anyone authorized by the Organization who is logged onto the Software, regardless of the type of interface (i.e. graphical user interface or browser user interface). (ii) A Site License permits the Organization to use the Software on the Designated Computer System in one (1) production environment and unlimited non production environments for the purposes of disaster recovery, disaster testing, training, archival and backup. Organization requires a separate Site License for each production environment into which the Software or any portion thereof is read in machine-readable form. The Organization may purchase additional Software Licenses at the time such Licenses become necessary at Harris's then current prices and terms. (f) As between Harris and Organization, Harris reserves all rights, title and interest in and to the Software not expressly granted herein and the License specifically excludes all such reserved rights, title and interest. Section 2.02 Term of License The License commences on the date of this License Agreement. The License is perpetual and of indefinite duration and shall continue to be in force unless terminated pursuant to the terms hereof. Section 2.03 Restrictions on Use (a) Without limiting the generality of the License granted in Section 2.01 and the other restrictions listed therein, Organization shall not, and will not allow, direct or authorize -4- (directly or indirectly) any other 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 pact 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; (iv) rent, lease, lend, 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. Organization shall be wholly liable to Harris for any misuse of the Software and these restrictions are absolute except as and only to the extent that this License Agreement may expressly permit Organization to do otherwise. (b) 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. Section 2.04 Ownership of Software and Confidential Information (a) The Organization acknowledges that the Software contains proprietary information and Confidential Information of Harris which shall, at all times, remain the property of Harris and, in addition to its obligations outlined in Section 2.03, the Organization agrees to treat such Confidential Information in accordance with Subsections (b) and (c) herein, (b) The Organization will take the same care to safeguard the Software as it takes to safeguard its own Confidential Information of a like nature and such care shall not be any less than would be taken by a reasonable person to safeguard its own confidential information. (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, Organization shall permit Harris to visit during normal business hours any premises at which the Software is used or installed and shall provide Harris with access to its Software. Harris shall provide Organization with reasonable notice of any such audit. Section 2.05 Ownership and Disposition of Documents (a) The parties agree that no materials or documents are being created for Organization by Harris under this License Agreement as of the effective date. All materials and documents which were developed or prepared by Harris for general use and which are not the copyright of any other party or publicly available, including educational materials, the Software and any other computer applications, shall continue to be the property of Harris. -5- (b) Only where the Organization requests custom materials or documents, then upon the agreement of the parties in writing as evidenced by a duly executed scope of work, the Organization shall be the exclusive owner of all such custom, materials and documents which are developed or prepared by Harris specifically for the Organization so long as such customer materials and documents are specifically described as being deliverables that are subject to this Subsection 2.05 (b) in the relevant scope of work, except to the extent to which such materials or documents may contain pre-existing Harris materials, in which case the scope of work will describe the license for such pre-existing Harris materials. ARTICLE III. REPRESENTATIONS AND WARRANTIES Section 3.01 Warranty of Performance Harris warrants to the Organization that: (a) the Software will substantially perform as described in the Documentation if the Software is used in accordance with the Documentation, the terms of this License Agreement and where the Organization has the Required Programs and the hardware meets the requirements of Section 3.03 (b). The Organization's primary recourse in the event the Software does not conform to the Documentation is the repair and replacement of the Software. (b) it has the full right, authority and power to enter into this License Agreement and to grant to the Organization the Licenses and rights conveyed by this License Agreement; and (c) the Software is an original work of authorship. Section 3.02 No Other Warranties The express warranties contained in this Article Ill are in lieu of all other representations, warranties and conditions, express or implied, whether arising by statute or otherwise in law or from a course of dealing, or usage of trade, including all warranties related to the merchantability and fitness for a particular purpose of the Software. No warranties are provided in relation to Releases in this License Agreement. 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. Without limiting the generality of the foregoing, Harris does not represent or warrant and the Organization acknowledges that there are no further representations or warranties: (a) that the functions contained in the Software will operate in the combinations which may be selected for use by the Organization or will meet the Organization's requirements and satisfy its intended results; (b) that the operation of the Software will be error free. Section 3.03 Required Programs (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) 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 hnplementation Services Agreement. 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 Section 3.04 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, 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 License 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 License 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) natural disasters, power surges, lightning strikes, and the like. ARTICLE IV. FEES AND PAYMENTS Section 4.01 Fees and Payments (a) The Organization agrees to pay Harris total license fees detailed in Schedule "B", which is not inclusive of any applicable taxes. The Organization shall be responsible for the -7- payment of any applicable duties and sales/consumption taxes. The fee structure and payment schedule is outlined in the attached Schedule "B". The License is subject to the full payment of the license fees. (b) Except for any aspect of the license fee which is payable on the date that this License Agreement is executed, in which case the payment is due on the date of execution, during the term of this License Agreement Organization shall have thirty (30) days after the date outlined in the payment schedule in Schedule "B" to pay Harris the applicable license fee. ARTICLE V. REMEDIES, LIABILITY AND INDEMNITY Section 5.01 Remedies and Liability (a) Termination of this License 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 License 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 License Agreement. (i) EXCEPT FOR DAMAGES ARISING OUT OF (a) HARRIS'S BREACH OF ITS CONFIDENTIALITY OBLIGATIONS, (b) HARRIS'S INTENTIONAL MISREPRESENTATION, GROSS NEGLIGENCE OR WILLFUL MISCONDUCT, OR (c) HARRIS'S INDEMNIFICATION OBLIGATIONS SET FORTH IN SECTION 5.03, BOTH PARTIES AGREE THAT HARRIS'S LIABILITY (UNDER BREACH OF CONTRACT, NEGLIGENCE, STRICT LIABILITY OR OTHERWISE), IF ANY, FOR ANY DIRECT DAMAGES RELATING TO OR ARISING UNDER THIS LICENSE AGREEMENT SHALL NOT EXCEED IN THE AGGREGATE THE LICENSE FEES PAID TO HARRIS BY THE ORGANIZATION IN CONNECTION WITH THIS LICENSE AGREEMENT. (ii) IN ADDITION TO THE FOREGOING, NEITHER PARTY SHALL BE LIABLE FOR CONSEQUENTIAL, INCIDENTAL, INDIRECT, SPECIAL OR OTHER DAMAGES OF ANY KIND, INCLUDING BUT NOT LIMITED TO LOST REVENUE OR LOSS OF PROFITS, EVEN IF SUCH OTHER PARTY HAS BEEN ADVISED OF THE LIKELIHOOD OF THE OCCURRENCE OF SUCH DAMAGES AND NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY. -8- (iii) CLAUSES (i) AND (ii) SHALL APPLY IN RESPECT OF ANY CLAIM, DEMAND OR ACTION BY A PARTY IRRESPECTIVE OF THE NATURE OF THE CAUSE OF ACTION UNDERLYING SUCH CLAIM, DEMAND OR ACTION, INCLUDING, BUT NOT LIMITED TO, BREACH OF CONTRACT OR TORT. Section 5.02 Intent The parties hereby confirm that the waivers and disclaimers of liability, releases from liability, limitations and apportionments of liability, and exclusive remedy provisions expressed throughout this License Agreement shall apply even in the event of default, negligence (in whole or in part), strict liability or breach of contract of the person released or whose liability is waived, disclaimed, limited, apportioned or fixed by such remedy provision, and shall extend to such person's affiliates and to its shareholders, directors, officers, employees and affiliates. Section 5.03 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 License Agreement constitutes an infringement of a Canadian or United States' patent, copyright, trade -mark or trade secret or other intellectual property that is valid and enforceable in Organization's jurisdiction, Harris shall, at its expense, defend and indemnify Organization and pay any final judgment (including all damages awarded against Organization) against Organization or settlement agreed to by Harris on Organization's behalf. This indemnity is only effective where (i) Organization has not made any admissions or begun settlement negotiations either prior to or after providing notice to Harris of the applicable claim except with Harris's prior written consent, (ii) Harris has sole control of the defense of any claim or proceeding and all negotiations for its compromise or settlement; (iii) Organization assists and provides information to Harris throughout the action or proceeding, and (iv) Organization has not modified the Software in any manner whatsoever except with the prior written consent of Harris. Any breach by Organization of its covenants under this Section 5.03 shall nullify this indemnity but not the sole right of Harris to have full and complete authority of the defense to defend such claim or proceeding and of all negotiations related therewith and the settlement thereof. In the event that the Organization's use of the Software is finally held to be infringing or Harris deems that it may be held to be infringing, Organization agrees that the only remedy available to it is that Harris shall be, at Harris's election, for Harris to: (1) procure for the Organization the right to continue use of the Software; or (2) modify or replace the Software so that it becomes non -infringing. (b) 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 property interest rights relating to the Software, or any part thereof or use thereof. (c) 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. Section 5.04 Remedies Where remedies are expressly afforded by this License 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 License Agreement, notwithstanding any remedy otherwise available at law or in equity. ARTICLE V[. GENERAL Section 6.01 Confidentiality (a) Duty Owed to the Organization .... Harris acknowledges that it may receive information from the Organization or otherwise in connection with this License Agreement. Except for information in the public domain, unless such information falls into the public domain by disclosure or other acts of the Organization or through the fault of the Organization, Harris agrees: (i) to maintain this information in confidence; (ii) not to use this information other than in the course of this License Agreement; (iii) not to disclose or release such information; (iv) not to disclose or release such information to any third person without the prior written consent of the Organization, except for authorized employees or agents of Harris; and (v) to take all reasonable actions, whether by instruction, agreement or otherwise, to ensure that third persons with access to the information under the direction or control or in any contractual privity with Harris, do not disclose or use, directly or indirectly, for any purpose other than for performing the Services during or after the term of this License Agreement, any material or information, including the information, without first obtaining the written consent of the Organization. (b) Duly Owed to Harris -- The parties agree that if the Organization breaches any term of Section 2.03 or Section 2.04 then Harris shall have the right to terminate this License Agreement and the grant of Licenses herein forthwith without giving notice as set forth in Section 6.02(a). Section 6.02 Termination (a) if either party should fail to comply with its obligations under this License 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 -10- 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 correct the default, or issue a notice disputing the alleged default, in either case within ninety (90) days following receipt of the Default Notice, the other party may terminate the whole of this License Agreement. (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 and this License Agreement immediately without complying with Section 6.04. Section 6.03 Procedure one Termination (a) If this License Agreement is terminated prior to the Completion of Services, then within thirty (30) days following such termination, 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) If this License Agreement is terminated following the Completion of Services, then the Organization may retain the copy of the Software in its possession as of the Completion of Services. Notwithstanding the foregoing, the Organization will remain subject to the obligations imposed upon it pursuant to this License Agreement with respect to the Software, including, but not limited to, such obligations relating to ownership of the Software and confidentiality and all of the restrictions on the Organization as set out in Article It. (c) Despite Subsection (d) below, all warranties related to the Software automatically terminate upon the termination of this License Agreement. (d) The following sections and articles shall survive the termination of this License Agreement: Section 3.02, Section 3.04, Section 5.01, Section 5.02, Section 5.04, Article IV and Article V1, Section 6.04 Mediation Except where this License Agreement explicitly states that this Section does not apply, the parties agree to submit any claim, controversy or dispute arising out of or relating to this License Agreement or the relationship created by this License Agreement to non -binding mediation before bringing a claim, controversy or dispute in a court or before any other tribunal. The mediation is to be conducted by either an individual mediator or a mediator appointed by mediation services mutually agreeable to the parties. The mediation shall take place at a time and location which is also mutually agreeable; provided; however, in no event shall the mediation occur later than ninety (90) days after either party notifies the other of its desire to have a dispute be placed before a mediator. Such mediator shall be knowledgeable in software system agreements. The costs and expenses of mediation, including compensation and expenses - 11 - of the mediator (and except for the attorneys fees incurred by either party), is to be shared by the parties equally. If the parties are unable to resolve the claim, controversy or dispute within ninety (90) days after the date either party provides the other notice of mediation, then either party may bring and initiate a legal proceeding to resolve the claim, controversy or dispute unless the time period is extended by a written agreement of the parties. Nothing in this Section shall inhibit a party's right to seek injunctive relief at any time. Section 6.05 Addresses for Notice Any notice required or permitted to be given to any party to this License 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 I 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 -12- Each party may change its particulars respecting notice, by issuing notice to the other party in the manner described in this Section 6.05. Section 6.06 Assignment Neither party may assign any of its rights or duties under this License 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 License Agreement shall inure to the benefit of and be binding upon the parties to this License Agreement and their respective successors and permitted assigns Section 6.07 Reorganizations The Organization acknowledges that the License fee set out in this License Agreement has been established on the basis of the structure of the Organization as of the Effective Date. To the extent that the Organization amalgamates, consolidates or undergoes any similar form of corporate reorganization or transition (a "Reorganization"), and the resulting entity (whether or not the Organization is the resulting or continuing entity) requires additional Licenses to support the system, Harris shall be entitled to receive, and the Organization shall pay, an additional License fee based on the then prevailing License fee in effect. The provisions of this Section 6.07 shall apply to any subsequent Reorganizations occurring following the first Reorganization. The provisions of this Section 6.07 shall not apply where the Organization undergoes a Reorganization involving only other organizations that have already purchased a License from Harris only to the extent that the License is for the same Software. For purposes of this License Agreement, any corporate changes undergone by the Organization will be characterized as either an assignment, in which case Section 6.06 will apply, or a Re- organization, in which case Section 6.07 will apply, but it is not intended that Section 6.06 and Section 6.07 will apply to any single sequence of events, if such application would result in a duplication of the fees provided for in those provisions. Section 6.08 Entire A i•eement This License Agreement shall constitute the entire agreement between the parties hereto with respect to the matters covered herein with respect to the License of the Software. No other 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 License Agreement. 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. - 13 - Section 6.09 Section HeadinLys Section and other headings in this License 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 6.10 Governing Law This License Agreement shall be governed by the laws of the province of Ontario and Canada therein. The United Nations Convention on Contracts for the International Sale of Goods (UNCCISG) does not apply to this Agreement. Section 6.11 Trial by Jury Organization and Harris hereby waive, to the fullest extent permitted by applicable law, the right to trial by jury in any action, proceeding or counterclaim filed by any party, whether in contract, tort or otherwise, relating directly or indirectly to this License Agreement or any acts or omissions of Harris in connection therewith or contemplated thereby. Section 6.12 Invaliditv The invalidity or unenforceability of any provision or covenant contained in this License 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 to be severable. Section 6.13 Waiver A term or condition of this License Agreement may be waived or modified only by written consent of both parties. Forbearance or indulgence by either party in any regard shall not constitute a waiver of the term or condition to be performed, and either party may evoke any remedy available under the License Agreement or by law despite such forbearance or notice. Section 6.14 Counterparts This License 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 6.15 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 License Agreement and carry out its provisions. -14- Section 6.16 Allocation of Risk Organization acknowledges that the limited warranties, disclaimers and limitations of liability contained in this License Agreement set forth an allocation of risk reflected in the fees and payments due hereunder. - 15 - IN WITNESS WHEREOF the parties hereto have duty executed this License Agreement to be effective as of the date first written above. N. HARRIS COMPUTER CORPORATION Per: Name: Bryce Cooper Title: President [ORGANIZATION] Per: Name: Title: - 16- Schedule "A" Description of Software Software License Type Quantity CIS Infinity Concurrent User License Infinity.Link Site License Required Operating System & Programs for CIS Infinity (V4) and Add - On Products CIS Infinity Version 4 Requirements Application Server Operating System • Windows Server 2008 or Higher • Microsoft Internet Information Service (IIS 7.5) • PHP/DokuWiki for CIS Help wiki system Optional Software • On Application Server, or workstation accessible to Advanced Support staff with access to application server and database server • For Advanced Support use: Any modern office suite that supports Open Document Format file (ODF), such as Microsoft Office (Word/Excel) 2007 or Higher (2010/2013/365), OpenOffice, etc. • Microsoft Access or another SQL data access tool. Database Server • Windows Server 2008/2012 running Microsoft SQL Server 2008 R2 or Higher (2012, 2014) or; • Windows Server 2008/2012 or Higher running Oracle 9 or Higher or; • Unix/Linux/AIX (any version) running Oracle 9 or Higher Linlc/Mobile Database Server • Windows Server 2008/2012 running Microsoft SQL Server 2008 R2 or higher (2012, 2014) • . NET 4.5.1 or higher Framework Installed Network • Widely accepted network infrastructure utilizing TCP/IP as its primary communication protocol. Workstation Operating System • Windows 7 or Higher (Windows 7, Windows 8/8.1, Windows 10) • 8GB RAM Recommended Required Workstation Software • NET 4.51 Framework Installed • PowerShell 4.0 or Higher (separate install not required for Windows 7/8/8.1) • Crystal Reports Runtime installer (located in the CIS Infinity V4 Reports folder) • SQLite ODBC installer (located in the CIS Infinity V4 Reports folder) Optional Workstation Software • Any modern office suite that supports Open Document Format file (ODF), such as Microsoft Office (Word/Excel) 2007 or Higher (2010/2013/365), OpenOffice. etc. • A comprehensive list of all optional workstation software cannot be provided; it is possible other workstation software may be required for specific client interfaces. Note: All software must be running the latest recommended patches from the respective provider of such software. Infinity.Link Requirements Application Server Operating System • Windows Server 2008 or Higher with Microsoft Internet Information Service (IIS 7.5) • NET 4.6 Framework Installed Network • Widely accepted network infrastructure utilizing the TCP/IP as its primary communication protocol. Supported browsers • Latest versions of common browsers (Microsoft Internet Explorer, Mozilla I; irefox, Google Chrome, Apple Safari) • Any of the above browsers that are available on popular smartphones and tablets Note: All software must be running the latest recommended patches from the respective provider of such software. Infinity.Mobile Requirements Application Server Operating System • Windows Server 2008 or Higher with Microsoft Internet Information Service (IIS 7.5) • NET 4.6 Framework Installed Network • Widely accepted network infrastructure utilizing the TCP/IP as its primary communication protocol. Supported browsers Network Latest versions of common browsers (Microsoft Internet Explorer, Mozilla Firefox, Apple Safari) Any of the above browsers that are available on tablets Widely accepted network infrastructure utilizing the TCP/IP as its primary communication protocol. Supported browsers Latest versions of common browsers (Microsoft Internet Explorer, Mozilla Firefox, Apple Safari) Any of the above browsers that are available on tablets Schedule "B" License Fees and Payment Schedule Description Quantity . Cost License Fees CIS Infinity — Concurrent User License (inclusive of Infinity.Link Site License) Infinity.Mobile — Site License Total License Fees License fees due upon contract execution, SOFTWARE IMPLEMENTATION SERVICES AGREEMENT THIS AGREEMENT made as of the _ day of BETWEEN: N. HARRIS COMPUTER CORPORATION ("Harris") - and - fORGANIZATION] ("Organization") RECITALS 1. The Organization wishes retain Harris to perform the Services (as defined herein). 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, a Support and Maintenance Agreement and a 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 LI 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 AgreerneDt. All references to "Articles" or "Sections" mean and refer to the specified Article or Section of this Agreement except where a different agreement is explicitly identified. (b) "Change Order" means any written documentation between the Organization and Harris evidencing their agreement to change particular aspects of this Agreement. ADVANCED U T I L I T Y S Y S T L M S Software implementation Services Agreement City of South Bend, Indiana 77 (c) "Completion of Services" means that the Software is fully operational and performing in conformity with the specifications set out herein. For purposes of this Agreement, Completion of Services will be deemed to have occurred on the date which the Organization commences using the Software as its predominate business system. (d) "Required Programs" has the meaning set out in Section 2.3(b) hereof. (e) "Scope of Work" means the scope of work appended hereto as Schedule "A" delineating, among other things, the Services that will be provided by Harris to Organization pursuant to this Agreement, as such schedule may be amended or modified by mutual specific written agreement of the parties' respective representatives from time to time in accordance with the terms of this Agreement, (f) "Services" has the meaning set out in Section 2.1 hereof. To the extent that a capitalized word is used in this Agreement, should it not be properly defined in this Agreement then it 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 shall be deemed to be integral parts of this Agreement. Schedule "A" - Scope of Work Schedule "B" - Fee Structure & Payment Schedule Schedule "C" - Sample Form Change Order In the event of any conflict or inconsistency between the terms and conditions in the main body of this Agreement and the terms and conditions in any Schedule, the terms and conditions of the main body of this Agreement shall control. ARTICLE 11 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") for the Organization: (a) Oversee and implement: the conversion from the Organization's existing software applications to Harris's Software. -2- (b) Install the Software and perform necessary set Lip 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. (iv) 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. (d) The Scope of Work describes in greater detail the Services, the method by which the Services shall be performed and other obligations on the part of the two parties. To the extent that the Scope of Work more explicitly details the Services or the obligations of a party, then those details shall prevail over any other document that is less explicit. Any warranties or representations on the part of Harris in the Scope of Work are not binding on Harris and are merely provided for information purposes; the only warranties and representations provided by Harris in respcct of the Services and this Agreeinerrt are found in Article III . 2.2 Performance by Harris (a) Manner of Performance -- Harris shall perform the Services in an efficient, competent and timely manner and exercise reasonable care, skill and diligence in the performance thereof. -3- (b) Harris's Discretion -- Harris shall determine in its sole discretion the manner and means by which the Services shall be performed, with due consideration of adequate knowledge transfer to the Organization personnel. Harris will communicate openly with the Organization on its methodology, manner and means. (c) 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, to observe the Organization's rules and policies relating to the security thereof, access to or use of all or part of the Organization's premises and any of the Organization's property, including proprietary or confidential information. Harris agrees that when it is working on the Organization's premises, its personnel shall observe the Organization's administrative and ethics codes relating to the security, access or use of all or part of the Organization's premises and any of the Organization's property, including proprietary or confidential information. (d) Inquiries by Organization -- Harris shall respond expeditiously to any inquiries pertaining to this Agreement from the Organization. (e) Independence -- As an independent consultant, Organization retains Harris on an independent contractor basis and not as an employee. (f) Coordination of Services -- Harris agrees to work closely with Organization staff in the performance of Services and shall be available to Organization's staff, consultants, and other staff at all reasonable times. (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, during normal business hours, 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. 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 -- The Organization acknowledges that the use of the Software requires that the Organization obtain and install additional required -4- software programs (the "Required Programs"), as detailed in Schedule "A" of the Software License Agreement, and 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. 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 facilitate the achievement of Completion of Services. If the Organization has not properly installed the Required Programs on hardware of sufficient quality, condition and repair, Harris shall have the right to suspend the Services and the related scheduled time frames until these issues have been dealt with by Organization sufficiently and 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. (d) Additional Organization Obligations (i) Organization shall install all Updates within a reasonable period of time of Organization's notification of their availability. However, any 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 request, additional data deemed necessary or desirable by Harris to reproduce the environment in which such defect occurred. (iii) Organization shall allow the use of online diagnostics on the Software supplied by Harris to Organization, if required by Harris during problem diagnosis. Organization shall provide to Harris, at Organization's expense, access to the Designated Computer System via the Organization's firewall to communications software (e.g. PC Anywhere, WebFx, 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, 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 -5- training then Harris shall be compensated in accordance with this Agreement. (v) 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 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. (vi) Organization shall have the sole responsibility for: (A) the performance of any tests it deems necessary prior to the use of the Software. (B) assuring proper Designated Computer System installation, configuration, verification, audit controls and operating methods. (C) implementing proper procedures to assure security and accuracy of input and output and restart and recovery in the event of malfunction. (D) timely upgrade and keeping current all third party license releases and/or Software products to meet the requirements of the Software. ARTICLE III REPRESENTATIONS AND WARRANTIES 3.1 Warranty Harris warrants that the Services will be performed in a professional and diligent manner by personnel who are competent in performing their individual tasks. Harris shall have no liability hereunder if the Organization has modified the Software in any manner without the prior written consent of Harris. 3.2 No Other Warranties The express warranties contained above are in lieu of all other representations, warranties and conditions, express or implied, whether arising by statute or otherwise in law or from a course of dealing, or usage of trade. Without limiting the generality of the foregoing, Harris does not represent or warrant and the Organization acknowledges that there are no further representations or warranties, whether express or implied, including any warranties regarding the merchantability of the Services nor for any outcome. ARTICLE IV FEES AND PAYMENTS 4.1 Fees and Payments (a) The Organization agrees to pay Harris total fees as delineated in Schedule "B". The fee structure and payment schedule is outlined in the attached Schedule "B". (b) During the term of this Agreement, Harris shall, from time to time, deliver invoices to Organization. Each invoice delivered to Organization by Harris shall be due and payable upon receipt thereof by Organization. (c) The Organization shall reimburse Harris for (1) its direct travel expenses including, but not Iimited to hotel, airfare, car rental, tolls, parking and airline and travel agent fees; (2) a travel time rate of $95.00 per hour; (3) a per diem rate of $70.00 for week days and a $125.00 for weekends and statutory holidays that includes all meal, food and telecommunications expenses (no receipts will be provided); (4) a mileage charge based on the current Internal Revenue Service recommended rate per mile; and (5) all other reasonable expenses incurred in the performance of Harris's duties including courier services and documentation copying or production. These costs are excluded from the total fees amount described in Section 4.1 (a). (d) In the event Organization fails to pay all or any portion of an invoice on or before ninety (90) 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, including any applicable late charges. (e) Harris shall be responsible for paying all taxes, fees, assessments and premiums of any kind payable on its employees and operations. Any tax Harris may be required to collect or pay upon the delivery of the Services described in this Agreement shall be paid by Organization and are excluded from a the prices listed in Schedule "B" and such sums (including the payment of the taxes) shall be due and payable to Harris upon receipt of an invoice. Any taxes levied after delivery of the Services described in this Agreement shall be paid by Organization. The Organization shall be responsible for the payment of any applicable duties and sales/consumption taxes. 4.2 Change OY•ders With respect to any proposed changes to the Services defined by this Agreement that do not materially impact the scope of either party's work effort required under 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 -7- of the parties' work effort required under this Agreement, such as, but not limited to, changes in the allocation of the resources of the Organization and of Harris applied to a task, changes in completion schedules for individual tasks or for overall implementation, and changes in staffing that require 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) 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. (c) EXCEPT FOR DAMAGES ARISING OUT OF (a) DAMAGE TO TANGIBLE PROPERTY OR (b) INJURY OR DEATH TO PERSONS, BOTH PARTIES AGREE THAT THE AGGREGATE LIABILITY OF HARRIS TO ORGANIZATION FOR ALL CLAIMS, SUITS, ACTIONS AND PROCEEDINGS HOWSOEVER ARISING, DIRECTLY OR INDIRECTLY, UNDER OR RELATING TO THIS AGREEMENT OR ITS SUBJECT MATTER, INCLUDING THOSE BASED ON BREACH OR REESCISSION OF CONTRACT, TORT, BREACH OF TRUST, OR BREACH OF FIDUCIARY DUTY SHALL NOT EXCEED, IN THE AGGREGATE, THE FEES PAID BY ORGANIZATION TO HARRIS PURSUANT TO THE RELEVANT STATEMENT OF WORK. (d) IN ADDITION TO THE FOREGOING, NEITHER PARTY SHALL BE LIABLE TO THE OTHER FOR ANY CLAIMS FOR CONSEQUENTIAL DAMAGES, INCIDENTAL DAMAGES, INDIRECT DAMAGES, SPECIAL DAMAGES, AGGRAVATED DAMAGES, LOSS OF REVENUE, LOSS OF PROFITS, FAILURE TO REALIZE EXPECTED SAVINGS, LOSS OF DATA, LOSS OF BUSINESS OPPORTUNITY EITHER UNDER OR RELATING TO THIS AGREEMENT OR ITS SUBJECT MATTER, WHETHER BASED ON BREACH OF RESCISSION OF CONTRACT, TORT, BREACH OF TRUST, -8- OR BREACH OF FIDUCIARY DUTY EVEN IF SUCH OTHER PARTY HAS BEEN ADVISED OF THE LIKELIHOOD OF THE OCCURRENCE OF SUCH DAMAGES. 5.2 Intent The parties agree that the limitation of liability as set out in Section 5.1 above shall apply under any circumstances (including as a result of a default under this Agreement, a tort related claim or breach of contract). For the purposes of Section 5.1 only, a party relying on the limitation of liability shall be deemed to include that parry's shareholders, directors, officers, employees, elected officials and affiliates. 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 Maieure 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 (unless by reason of the negligence of a party to this Agreement) or failure or inoperability of any software other than the Software. Any applicable delivery schedule shall be extended by a period of time equal to the time lost because of any such delay. 6.2 Confidentiality (a) Duty Owed to the Organization -- Harris acknowledges that it may receive information from the Organization or otherwise in connection with this Agreement or the performance of the Services. Except for information in the public domain, unless such information falls into the public domain by disclosure or other acts of the Organization or through the fault of the Organization, Harris agrees: (i) to maintain this information in confidence; (ii) not to use this information other than in the course of this Agreement; (iii) not to disclose or release such information except on a need -to -know only basis; -9- (iv) not to disclose or release such information to any third person without the prior written consent of the Organization, except for authorized employees or agents of Harris; and (v) to take all appropriate action, whether by instruction, agreement or otherwise, to ensure that third persons with access to the information under the direction or control or in any contractual privity with Harris, do not disclose or use, directly or indirectly, for any purpose other than for performing the Services during or after the term of this Agreement, any material or information, including the information, without first obtaining the written consent of the Organization. 6.3 Termination (a) Except for those terms that explicitly survive the expiration or termination of this Agreement, this Agreement shall expire upon the Completion of Services. The parties may at any time revive. this Agreement so. that. it may be.used in relation to a new Scope of Work. (b) 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 correct the default, or issue a notice disputing the alleged default, in either case within ninety (90) days following receipt of the Default Notice, the Organization may terminate the whole of this Agreement or the part of this Agreement relating to the provision of Services and in such case 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. (c) If the Organization should fail to comply with its obligations under this Agreement, Harris must notify the Organization in writing of such default (a "Default Notice"). Upon receipt of a Default Notice, the Organization must correct the default at no additional cost to Harris, or issue a written notice of its own disputing the alleged default, in either case within thirty (30) days immediately following receipt of a Default Notice. If the Organization fails to correct the default, or issue a notice disputing the alleged default, in either case within ninety (90) days following receipt of the Default Notice, Harris may terminate the whole of this Agreement 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. -10- (d) The termination of this Agreement prior to the Completion of Services shall result in the concurrent termination of the Support and Maintenance Agreement and of the Software License Agreement. The termination or expiration of this Agreement following the Completion of services shall not affect the rights of either party in either the Support and Maintenance Agreement or the Software License Agreement. 6.4 Mediation The parties agree to Submit any claim, controversy or dispute arising out of or relating to this Agreement or the relationship created by this Agreement to non -binding mediation before bringing a claim, controversy or dispute in a Court or before any other tribunal. The mediation is to be conducted by either an individual mediator or a mediator appointed by mediation services mutually agreeable to the parties. The mediation shall take place at a time and location which is also mutually agreeable; provided; however, in no event shall the mediation occur later than ninety (90) days after either party notifies the other of its desire to have a dispute be placed before a mediator. Such mediator shall be knowledgeable in software system agreements. The costs and expenses of mediation, including compensation and expenses of the mediator (and except for the attorneys fees incurred by either party), is to be shared by the parties equally. If the parties are unable to resolve the claim, Controversy or dispute within ninety (90) days after the date either party provides the other notice of mediation, then either party may bring and initiate a legal proceeding to resolve the claim, controversy or dispute unless the time period is extended by a written agreement of the parties. 6.5 Addresses for Notice Any notice required or permitted to be given to any party to this Agreement shall be given in writing and shall be delivered personally, mailed by prepaid registered post or sent by facsimile to the appropriate address or facsimile number set out below. Any such notice shall be conclusively deemed to have been given and received on the day on which it is delivered or transmitted (or on the next succeeding business day if delivered or received by facsimile after 5:00 p.m. local time on the date of delivery or receipt, or if delivered or received by facsimile on. 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 I 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 7.5. 6.6 Assignment Neither party may assign any of its rights or duties under this Agreement without the prior written consent of the other party, such consent not to be unreasonably withheld, except that either party may assign to a successor entity in the event of its dissolution, acquisition, sale of substantially all of its assets, merger or other change in legal status, The Agreement shall inure to the benefit of and be binding upon the parties to this Agreement and their respective successors and permitted assigns. 6.7 Reorganizations The Organization acknowledges that where a "Reorganization" occurs as that term is defined in the Software License Agreement, the same provisions related thereto shall apply to this Agreement. The application of a Reorganization may result in a change in the fees provided for in these provisions. 6.8 Entire Agreement This Agreement shall constitute the entire agreement between the parties hereto with respect to the matters covered herein. No other 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. 6.9 Section Headings Section and other headings in this Agreement are for reference purposes only, and are in no way intended to describe, interpret, define or limit the scope or extent of any provision hereof. 6.10 Governing Lair This Agreement shall be governed by the laws of the State in which Organization is located, 6.11 Trial by Ju 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 -12- party, whether in contract, tort or otherwise, relating directly or indirectly to this Agreement or any acts or omissions of Harris in connection therewith or contemplated thereby. 6.12 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 to be severable. 6.13 Waiver A term or condition of this Agreement may be waived or modified only by written consent of both parties. Forbearance or indulgence by either party in any regard shall not constitute a waiver of the term or condition to be performed, and either party may evoke any remedy available under the Agreement or by law despite such forbearance or notice. 6.14 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. 6.15 Survival Section 4.1 and Articles V and VI shall survive the termination and/or expiration of this Agreement. 6.16 Competitive Bid Organization has conducted a competitive evaluation and has concluded such efforts with this negotiated Agreement (including any addenda hereto); therefore, this Agreement may serve as the basis for similar agreements whereby other entities may contract separately with Harris. Organization agrees that Harris may disclose all or any portion of this Agreement to any of its current or prospective customers. 6.17 Further Assurances The parties shall do all such things and provide all such reasonable assurances as may be required to consummate the transactions contemplated hereby, and each party shall provide such further documents or instruments required by any other party as may be reasonably necessary or desirable to effect the purposes of this Agreement and carry out its provisions. - 13 - IN WITNESS WHEREOF the parties hereto have duly executed this Software Implementation Services Agreement to be effective as of the date first written above N. HARRIS COMPUTER CORPORATION Per: Name: Bryce Cooper Title: President [ORGANIZATION] Per: Name: Title: - l4- Schedule "A" Scope of Work Schedule "B" Fee Structure and Payment Schedule The total fees payable under this Software Implementation Services Agreement are $XXX.00, which amount is not inclusive of those elements which are specifically excluded as described in the Software Implementation Services Agreement, The fees shall be paid in the following manner as delineated below: Description Quantity/ Hours Cost Services Fees Project Management Discovery Data Conversion Configuration Training Interfaces Modifications Custom Reports Infinity.Link Post Live Support Total Implementation Service Fees Estimated Travel Related Expenses Total Implementation Service Fees Payment Milestones CITY will be billed monthly by Advanced for milestones completed during the month, The service fees milestones are as follows: Milestone CITY will be billed monthly for all milestones Estimated Month Reference Invoice Amount completed during the month of Completion (i.e. one invoice per month). Totals � $ Schedule "C" Sample Form Chanj4e Order Change Order Date Client Client Software Contact Application Client Email Attachments: ❑ $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" lis€ed above as it relates to the description of work contained in this Change Order. Your signature also indicates you have reviewed and agree to the scope of work as detailed in any accompanying enclosures or attachments. This signed document indicates that you have provided all of the accurate infonnation necessary to produce the work as stated in the above Change Order. Customer # Application # Originated by # PO# 0000000 ADVANCED U T{ L I T Y S Y S T E M S Support and Maintenance Agreement City of South Bend, Indiana 78 SUPPORT AND MAINTENANCE AGREEMENT THIS AGREEMENT made as of the day of _, BETWEEN: N. HARRIS COMPUTER CORPORATION ("Harris") - and - [ORGANIZATION] ("Organization") RECITALS Harris owns the Software which has been licensed to Organization pursuant to a Software License Agreement; 2. The Organization wishes to receive support and maintenance services related to the Software; I Harris shall provide the Support and maintenance set -vices related to the Software; 4. The Organization and Harris are entering into three (3) separate agreements with each dealing with a separate aspect of the Software: a Software License Agreement, a Support and Maintenance Agreement and a Software Implementation Services Agreement. NOW THEREFORE, in consideration of the mutual covenants Set Out in this support and maintenance agreement (the "Support and Maintenance Agreement") and for other good and valuable consideration (the receipt and sufficiency of which is hereby acknowledged), the parties agree as follows: 1. Unless otherwise defined herein, all defined terms used herein shall have the meaning ascribed to them in the Software License Agreement (the "License Agreement"). This Support and Maintenance Agreement is the exclusive statement of the entire support and maintenance agreement between Harris and Organization. 3. Harris shall provide software support primarily via telephone and electronic mail in addition to site visits only when necessary. 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), as Such services may, at I larris, s sole discretion, be modified or supplemented frorn time to time. To enable Harris to provide effective support, the Organization will establish auto remote access procedures compatible with Harris's then current practices which may be revised over time. 4. This Support and Maintenance Agreement becomes effective the date the Software is installed (the "Start Date"). 5. In consideration for the support services specified in Section 2, Organization shall pay the "Support and Maintenance Fee" as detailed in Exhibit I below. The Year 1 Support and Maintenance Fee will be prorated and billed in advance beginning on the Start Date through December 31" of the same year. Thereafter Organization will be billed annually in advance on January lst. Harris may change the Support and Maintenance Fee from time to time in relation to each renewal term but Organization shall only be billed once per year. b. In addition to the Support and Maintenance Fee, Organization shall reimburse Harris for its direct expenses in providing support services (`Billable Fees") pursuant to this Support and Maintenance Agreement which 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 $95.00/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. Harris may update its reimbursement policies from time to time, in which case such updated policies shall apply for purposes of this Support and Maintenance Agreement, provided that such updated reimbursement policies must generally apply to all clients of Harris. 7. Harris shall supply all Upgrades to Organization at no additional charge other than the payment of the Support and Maintenance Fee. Upgrades may require additional services to be performed by Harris outside of the scope of those services provided by Harris as described in Section S 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 the Harris's then -prevailing policies, terms and Billable Fees related to pricing and hourly rates. 8. All Updates of the Software and all those services listed in Exhibit 2 which are included as part of Organization's Software support will be made available to Organization at no additional charge other than the payment of the Support and Maintenance Fee. -2- 9. All payments hereunder shall be in U.S. dollars and shall be net of any taxes, tariffs or other governmental charges. Harris shall be responsible for paying all taxes, fees, assessments and premiums of any kind payable on its employees and operations. Any tax Harris may be required to collect or pay upon the sale, use or delivery of the support and maintenance services described in this Support and Maintenance Agreement shall be paid by Organization and such sums shall be due and payable to Harris upon receipt of an invoice therefore. Any taxes levied in relation to the services required for a Release shall be paid by Organization. The Organization shall be responsible for the payment of any applicable duties and sales/consumption taxes. I.O. The initial term of this Support and Maintenance Agreement shall begin on the Start Date and end on December 31" of the same year. Thereafter, this Support and Maintenance Agreement shall automatically renew on an annual basis, unless terminated by either party upon giving to the other not less than 90 days' notice in writing prior to the end of the initial term or any subsequent anniversary of such date. Organization shall pay the then prevailing Support and Maintenance Fee in advance for each term of the Support and Maintenance Agreement and where the notice of non -renewal has not been provided in accordance with these terms, the Organization is obliged to pay the Support and Maintenance Fee for the then applicable term.. The termination of this Support and Maintenance Agreement by Organization shall not affect the License or the Software License Agreement. Harris shall neither refund any Support and Maintenance Fees nor any Billable Fees if this Support and Maintenance Agreement is terminated. Organization acknowledges that if this Support and Maintenance Agreement is terminated, then it will not be eligible to receive the benefits of this Support and Maintenance Agreement including the right to Releases or to access the source code in escrow upon the occurrence of any Event of Default. 1 1. Title to and ownership of all proprietary rights in the Releases and all related proprietary information supplied by Harris in providing the services pursuant to this Support and Maintenance Agreement shall at all times remain with Harris, and Organization shall acquire no proprietary rights by virtue of this Support and Maintenance Agreement. 12. Harris shall have the right to terminate this Support and Maintenance Agreement immediately if - (a) Organization attempts to assign this Support and Maintenance Agreement or any of its rights hereunder, or undergoes a Reorganization, without complying with the License Agreement; or (b) Organization has not paid an invoice within ninety (90) days of the start of a renewal term. 13. Unless otherwise agreed to by the parties, all notices required hereunder shall be made in accordance with the provisions of the License Agreement. 14. Either party's lack of enforcement of any provision in this Support and Maintenance Agreement in the event of a breach by the other shall not be construed to be a waiver of -3- 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. 15. The parties agree that the terms and conditions contained herein shall prevail notwithstanding any variations on any orders, e-mails or other correspondence submitted by Organization. 16. The particular provisions of this Support and Maintenance Agreement shall be deemed confidential in nature and neither Organization nor Harris shall divulge any of its provisions as set forth herein to any third party except as may be required by law. 17. (a) Termination of this Support and Maintenance 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 Support and Maintenance 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 Support and Maintenance Agreement. (c} THE AGGREGATE LIABILITY OF HARRIS TO ORGANIZATION FOR ALL CLAIMS, SUITS, ACTIONS AND PROCEEDINGS HOWSOEVER ARISING, DIRECTLY OR INDIRECTLY, UNDER OR RELATING TO THIS SUPPORT AND MAINTENANCE AGREEMENT OR ITS SUBJECT MATTER, INCLUDING THOSE BASED ON BREACH OR REESCISSION OF CONTRACT, TORT, BREACH OF TRUST, OR BREACH OF FIDUCIARY DUTY SHALL NOT EXCEED, IN THE AGGREGATE, THE AMOUNT OF FEES ACTUALLY PAID BY THE ORGANIZATION TO HARRIS UNDER THIS SUPPORT AND MAINTENANCE AGREEMENT DURING THE THEN - CURRENT TERM (AND IN NO EVENT BEING GREATER THAN 12 MONTHS) OF THE SUPPORT AND MAINTENANCE AGREEMENT UP TO AND INCLUDING THE DATE OF TERMINATION. (d) IN ADDITION TO THE FOREGOING, NEITHER PARTY SMALL BE LIABLE TO THE OTHER FOR ANY CLAIMS FOR CONSEQUENTIAL DAMAGES, INCIDENTAL DAMAGES, INDIRECT DAMAGES, SPECIAL DAMAGES, AGGRAVATED DAMAGES, LOSS OF REVENUE, LOSS OF PROFITS, FAILURE TO REALIZE EXPECTED SAVINGS, LOSS OF DATA, LOSS OF BUSINESS OPPORTUNITY EITHER UNDER OR RELATING TO THIS SUPPORT AND MAINTENANCE AGREEMENT OR ITS SUBJECT MATTER, WHETHER BASED ON BREACH OF RESCISSION OF CONTRACT, TORT, BREACH OF TRUST, OR BREACH OF FIDUCIARY DUTY EVEN IF SUCH OTHER PARTY HAS BEEN ADVISED OF THE LIKELIHOOD OF THE OCCURRENCE OF SUCH DAMAGES AND -4- NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY. 17. The parties hereby confirm that the waivers and disclaimers of liability, releases from liability, limitations and apportionments of liability, and exclusive remedy provisions expressed throughout this Support and Maintenance Agreement shall apply even in the event of default, negligence (in whole or in part), strict liability or breach of contract of the person released or whose liability is waived, disclaimed, limited, apportioned or fixed by such remedy provision, and shall extend to such person's affiliates and to its shareholders, directors, officers, employees and affiliates. 18. Where remedies are expressly afforded by this Support and Maintenance 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 Support and Maintenance Agreement, notwithstanding any remedy otherwise available at law or in equity. 19. The Organization may, at Organization's option, enter into an escrow arrangement with Harris. Upon the Organization's request: (i) Organization shall be presented with the standard escrow beneficiary enrolment document for participation in Harris's source code escrow arrangement with an escrow agent (the "Escrow Arrangement"). (ii) By entering into this Escrow Arrangement, the Organization shall have all the rights as stipulated in the escrow agreement together with those rights which are more specifically outlined in Schedule "A", Escrow Terms, which shall form part of this Support and Maintenance Agreement in accordance with the terms of Schedule "A". 20. This Support and Maintenance Agreement shall be governed by the laws of the province of Ontario and Canada applicable therein. 21. This Support and Maintenance Agreement may not be assigned by the Organization unless, concurrently with any such assignment, the Organization assigns its rights under, and complies with the provisions of the License Agreement. 22. This Support and Maintenance Agreement shall be binding upon the successors and assigns of the parties and enure to the benefit of the successors and permitted assigns of the parties. 23. The invalidity or unenforceability of any provision or covenant contained in this Support and Maintenance 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 to be severable. 24. This Support and Maintenance Agreement may be executed in counterparts (whether by -5- 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. IN WITNESS WHEREOF, the Parties have executed this Support and Maintenance Agreement to be effective as of the date first written above. N. HARRIS COMPUTER CORPORATION Per: Name: Bryce Cooper Title: President [ORGANIZATION NAME] Per: Name: 'Title: w Schedule "A" Escrow Terms Where the Organization has agreed to be a beneficiary of the Escrow Agreement (as defined below) by entering into the Escrow Arrangement, the following sections shall apply to the Support and Maintenance Agreement upon the execution of the Escrow Arrangement. (a) Harris and Lincoln -Parry (the "Escrow Agent") have entered into an escrow agreement (the "Escrow Agreement"). The Source Code is provided by Harris to the Escrow Agent pursuant to the terms of this Agreement. The Organization has a right to the Source Code pursuant to the provisions of this Schedule and the Escrow Agreement as it has agreed to participate in the Escrow Arrangement and is a beneficiary because the Organization has completed the Escrow Arrangement document. Harris agrees that if an "Event of Default" occurs, then the Organization shall have the right to one copy of the most current version of the Source Code for the affected Software and associated Documentation. (b) An Event of Default is defined as and shall be deemed to have occurred if Harris: (1) ceases to market or make available maintenance or support services for the Software during a period in which the Organization is entitled to receive or to purchase, or is receiving or purchasing, such maintenance and support and Harris has not promptly cured such failure despite the Organization's demand that Harris make available or perform such maintenance and support, (2) becomes insolvent, executes an assignment for the benefit of creditors, or becomes subject to bankruptcy or receivership proceedings, and it continues to be subject to bankruptcy proceedings ninety (90) days following either its application into bankruptcy protection or the commencement of such proceedings, or (3) has transferred all or substantially all of its assets or obligations set forth in this Agreement to a third party which has not assumed all of the obligations of Harris set forth in this Agreement. (c) Harris will promptly and continuously update and supplement the Source Code as necessary with all corrections, improvements, updates, releases, or other changes developed for the Software and Documentation. Such Source Code shall be in a form suitable for reproduction and use and shall consist of a full source language statement of the program or programs comprising the Software. (d) The governing License for the Software includes the right to use Source Code received under this Schedule as necessary to modify, maintain, and update the Software but for no other purposes outside the normal business operations of the Organization. (e) The termination of the Support and Maintenance Agreement shall immediately end the Organization's rights as a beneficiary under the Escrow Agreement and Escrow Arrangement, as applicable. (f) This Schedule "A" shall form part of the Support and Maintenance Agreement only where an Escrow Arrangement is entered into by the parties. The Escrow Agreement provides that either the Escrow Agent or Harris will annually send notices to the Organization of the Escrow Agent's continued possession of the Source Code and will also state the activity related to the Source Code provided to the Escrow Agent by Harris for the previous year. The Escrow Agreement cannot be terminated without the consent of each beneficiary (licensee) of the Escrow Agreement. Exhibit I Annual Support and Maintenance Fee Year I Support and Maintenance Fees: $xxx,00 Exhibit 2 Standard Support and Maintenance Services — Standard Guidelines The purpose of this Exhibit 2 is to provide our customers with information on our standard coverage, the services which are included as part of your annual software support, a listing of call priorities, 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. The services listed below are services that are included as part of your software support. • 800 Toll Free Telephone support • Software for Life - Guaranteed Support on your existing applications for life - Scheduled assistance for installations, upgrades and other special projects (there may be charges depending on the scope of work) • Technical troubleshooting and issue resolution • E-mail support call logging and notification • eSupport access 24 x 7 with the following on-line benefits: - Log and close calls - View and update calls - Update contact information - Access published documentation - Access available downloads - Access Support knowledge base - Participate in Discussion Forums • Standard software releases and updates - Defect corrections (as warranted) - Planned enhancements - State and/or Federal mandated changes (charges may exist depending on scope) - Participation in beta program - Release notes • Customer Care Program - Quarterly News Letter with support tips - Technical support bulletins - Communication on new products and services - On -site visits (as required) • Design review for potential enhancements or custom modifications • Ability to attend the annual customer conference (attendance fees apply) Help Desk Hours Our standard hours of support are from 8:00 a.m. EST to 8:00 p.m. EST, Monday to Friday, excluding designated statutory holidays. After hours telephone support is available from 8:00 p.m. EST through to 8:00 a.m. EST. Weekend and holiday assistance is available and must be scheduled in advance and in most cases is billable. Response Times Response times will vary and are dependent on the priority of the call. We do our best to ensure that we deal with incoming calls in the order that they are received, however calls will be escalated based on the urgency of the issue reported. Our response time guidelines are as follows: Priority 1: 1 - 4 hours Priority 2: 1 - 8 hours Priority 3: 1 - 24 hours Call Priorities In an effort to assign our resources to incoming calls as effectively as possible, we have identified three types of call priorities, 1, 2 and 3. A Priority 1 call is deemed by our support staff to be an Urgent or High Priority call, Priority 2 is classified as a Medium Priority and Priority 3 is deemed to be a Low Priority. The criteria used to establish guidelines for these calls are as follows: Priority 1— High • System Down (Software Application, Hardware, Operating System, Database) • Inability to process bills • Program errors without workarounds • Aborted postings or error messages preventing data integration and update • Performance issues of severe nature impacting critical processes Priority 2 - Medium • System errors that have workarounds • Reports calculation issues • Printer related issues (related to interfaces with our software and not the printer itself) • Security issues • Hand-held issues not preventing billing • Performance issues not impacting critical processes • Usability issues • Workstation connectivity issues (Workstation specific) Priority 3 - Low • Report formatting issues • Training questions, how to, or implementing new processes • Aesthetic issues • .Issues with workarounds • Recommendations for enhancements on system changes • Questions on documentation Call Process All issues or questions reported to support are tracked via a support call, our support analysts cannot provide assistance unless a support call is logged. Our current process for logging calls includes the following: eSupport (via website), email, phone and fax. • Your call must contain at a minimum: your organization name, contact person, software product and version, module and/or menu selection, nature of issue, detailed description of your question or issue and any other information you believe pertinent. • Our support system or one of our support analysts will provide you with a call ID to track your issue and your call will be logged into our support tracking database. • Your call will be stored in a queue and the first available support representative will be assigned to deal with your issue. • As the support representative assigned to your call investigates your issue, you will be contacted and advised as to where the issue stands and the course of action that will be taken for resolution. If we require additional information, you will be contacted by the assigned support representative to supply the information required. • All correspondence and actions associated with your call will be tracked against your call in our support database. At any time, if available to you, you may log onto our website to see the status of your call. • Once your call has been resolved, you will receive an automated notification by email that your call has been closed. This email will contain the entire event history of the call from the time the call was created and leading up to the resolution of the call. You also have the option of viewing both your open and closed calls, if available to you, via our website. • If your issue needs to be escalated to a development resource or programmer for resolution, your issue will be logged into our development tracking database and you will be provided with a separate ID number to track the progress of the issue. At this time, your support call will be closed and replaced by the development ID number. The development ID number will remain open until your issue has been completely resolved. Issues escalated to development will be scheduled for resolution and may not be resolved immediately depending on the nature and complexity of the issue. Contact the support department at your convenience for a status update on your development issues, or log onto our website (if available to you) to view your issues on- line. Escalation Process Our escalation process is defined below. This process has been put in place to ensure that issues are being dealt with appropriately. If at any time you are not completely satisfied with the resolution of your issue, you are encouraged to escalate with the support department as follows: Level 1: Contact the support representative working on your issue Level 2: Contact the support supervisor or group lead Level 3: Contact the Director of Support Level 4: Contact the Vice President of Operations Level 5: Contact the Executive Vice President Holiday Schedule Below is a listing of statutory holidays. Please note that support services will be closed on designated days as outlined below. New Year's Day Closed President's Day Closed Memorial Day Closed Independence Day Closed Labor Day Closed Thanksgiving Closed Christmas Eve Early Closure Christmas Day Closed New Year's Eve Early Closure Billable Support Services The services listed below are services that are out of scope of your support and maintenance agreement and are therefore considered billable services. • Extended telephone training • Forms redesign or creation (includes Bill Prints, Notice prints and Letters) • Setup and changes to interfaces or creation of new interface • Setup of new services or changes to services ( PAP, ACH, etc.) • File imports/exports • Custom modifications (reports, bills, forms, reversal of customizations) • Setting up additional companies / agencies / tokens / general ledgers • Data conversions / global modification to setup table data • Database maintenance, repairs and optimization • Installations I re -instal Iations (workstations, servers) Test Databases and Environments We support customers in the maintenance of independent test environments for testing purposes. This allows customers the opportunity to test fixes, modifications, new business processes and/or scenarios without risking any potentially unwanted changes to the live environment. Connection Methods To ensure we can effectively support our clients, we require that a communication link is established and maintained between our two sites. It is the Organization's responsibility to ensure the connection is valid at your location so that we can connect to your site and resolve any issues. Our supported methods of connection are: Direct internet, Virtual Private Network (VPN), Remote Access Server (RAS), and Terminal Services (a backup connection may be required for file transfers) however; Harris will work with the client to establish a mutually agreeable remote connection policy. ADVANCED U T I L. I T Y 5 Y S T E M S Safety during performance of the work is of paramount concern to the City. Vendor agrees to comply with the provisions of'the Occupational Safety and Health Act of 1970 and the standards and regulations issued there under and certifies that all actions furnished under this order will conform to and comply with said standards and regulations. Supplier further agrees to indemnify and hold harmless the City for all damages assessed against the City as a result of Vendors" failure to comply with the Act and standards issued there under. Advanced agrees to comply with the provisions of the Occupational Safety and Health Act of 1970 and the standards and regulations issued there under and certifies that all actions furnished under this order will conform to and comply with. said standards and regulations. Advanced further agrees to indemnify and hold harmless the City for all damages assessed against the City as a result of Vendors' failure to comply with the Act and standards issued there under. City of South Bend, Indiana 79 ADVANCED UTILITY SYSTEMS 11. Affidavit Vendor shall complete the Contractor's Non -Collusion and Non-Deparment Affidavit, Certification Regarding Investment with Iran, Employment Eligibility Verification, Non - Discrimination Commitment and Certification of Use of United States Steel Products or Foundry Products. This form is found in Attachment 3. Attachment 3 City of South Bend, Indiana 8o When tare prospective Contractor is unable to certify to any of the statements below, it shall attach an L-vplanation to this Affidavit. CONTRACTOR'S NON -COLLUSION AND NON -DEBARMENT AFFIDAVIT, CERTIFICATION REGARDING INVESTMENT WITH IRAN, EMPLOYMENT ELIGIBILITY VERIFICATION, NON-DISCRIMINATION COMMITMENT AND CERTIFICATION OF USE OF UNITED STATES STEEL PRODUCTS OR FOUNDRY PRODUCTS (Must be completed for all quotes and bids. Please type or print) STATE OF_QnU6Vi0 C4 N ) SS: 151; —A-) eER4N+Y The undersigned Contractor, being duly sworn upon his/her/its oath, affirms under the penalties of perjury that: I . Contractor has not, nor has any other member, representative, or agent of the firm, company, corporation or partnership represented by hire, entered into any combination, collusion or agreement with any person relative to the price to be bid by anyone at such letting nor to prevent any person from bidding nor to induce anyone to refrain from bidding, and that this bid is made without reference to any other bid and without any agreement, understanding or combination with any other person in reference to such bidding. Contractor further says that no person or persons, firms, or corporation has, have or will receive directly or indirectly, any rebate, fee, gift, commission or thing of value on account of such sale; and 2. Contractor certifies by submission of this proposal that neither contractor nor any of its principals are presently debarred, suspended, proposed for debarment, declared ineligible, or voluntarily excluded from participation in this transaction by any Federal department or agency; and 3,. Contractor has not, nor has any successor to, nor an affiliate of, Conti -actor, engaged in investment activities in Iran. a. For purposes of this Certification, "Iran" means the government of Iran and any agency or instrumentality of Iran, or as otherwise defined at Ind. Code § 5-22-16.5-5, as amended from time -to -time. b. As provided by Ind. Code § 5-22-16.5-8, as amended from time -to -time, a Contractor is engaged in investment activities in Iran if either: i. Contractor, its successor or its affiliate, provides goods or services of twenty million dollars ($20,000,000) or more in value in the energy sector of Iran; or ii. Contractor, its successor or its affiliate, is a financial institution that extends twenty million dollars ($20,000,000) or more in credit to another person for forty-five (45) days or more, if that person will (i) use the credit to provides goods and services in Non-Cofiusi on Non-Debannent Affidavit Non Juni Form 2016 the energy sector in Iran; and (ii) at the time the financial institution extends credit, is a person identified on list published by the Indiana Department of Administration. 4. Contractor does not knowingly employ or contract with an unauthorized alien, nor retain any employee or contract with a person that the Contractor subsequently learns is an unauthorized alien. Contractor agrees that he/she/it shall enroll in and verify the work eligibility status of all of Contractor's newly hired employees through the E-Verify Program as defined by I.C. 22-5-1.7-3. Contractor's documentation of enrollment and participation in the E-Verify Program is included and attached as part of this bid/quote; and 5. Contractor shall require his/her/its subcontractors performing work under this public contract to certify that the subcontractors do not knowingly employ or contract with an unauthorized alien, nor retain any employee or contract with a person that the subcontractor subsequently learns is an unauthorized alien, and that the subcontractor has enrolled in and is participating in the E-Verify Program. The Contractor agrees to maintain this certification throughout the term of the contract with the City of South Bend, and understands that the City may terminate the contract for default if the Contractor fails to cure a breach of this provision no later than thirty (30) days after being notified by the City. b. Persons, partnerships, corporations, associations, or joint venturers awarded a contract by the City of South Bend through its agencies, boards, or commissions shall not discriminate against any employee or applicant for employment in the performance of a City contract with respect to hire, tenure, terms, conditions, or privileges of employment, or any matter directly or indirectly related to employment because of race, sex, religion, color, national origin, ancestry, age, gender expression, gender identity, sexual orientation or disability that does not affect that person's ability to perform the work. In awarding contracts for the purchase of work, labor, services, supplies, equipment, materials, or any combination of the foregoing including, but not limited to, public works contracts awarded under public bidding laws or other contracts in which public bids are not required by law, the City, its agencies, boards, or commissions may consider the Contractor's good faith efforts to obtain participation by those Contractors certified by the State of Indiana as a Minority Business ("MBE") or as a Women's Business Enterprise ("WBE") as a factor in determining the lowest, responsible, responsive bidder. In no event shall persons or entities seeking the award of a City contract be required to award a subcontract to an MBE/WBE; however, it may not unlawfully discriminate against said WBE/MBE. A finding of a discriminatory practice by the City's MBE/WBE Utilization Board shall prohibit that person or entity from being awarded a City contract for a period of one (1) year from the date of such determination, and such determination may also be grounds for terminating the contact for which the discriminatory practice or noncompliance pertains. 7. The undersigned contractor agrees that the following nondiscrimination commitment shall be made a part of any contract which it may henceforth enter into with the City of South Bend, Indiana or any of its agencies, boards or commissions. Non -Collusion Non -Debarment Affidavit Non Iran Form 2016 Contractor agrees not to discriminate against or intimidate any employee or applicant for employment in the performance of this contract with privileges of employment, or any matter directly or indirectly related to employment, because of race, religion, color, sex, gender expression, gender identity, sexual orientation, handicap, national origin or ancestry. Breach of this provision may be regarded as .material breach of contract. I, the undersigned bidder or agent as contractor on a public works project, understand tray statutory obligations to the use of steel products or foundry products made in the United States (I.C. 5-16-8-1). I hereby certify that I and all subcontractors employed by me for this project will use steel products or foundry products made in the United States on this project if awarded. I understand I have an affirmative duty to notify the City in my bid that my proposal does not include the use of steel products or foundry products made in the United States. I understand it is my sole obligation and responsibility to provide a justification to the City, subject to review and approval, why the cost of United States made steel or foundry products is unreasonable. Prior to award and upon submission of bid which does not use steel products or foundry products made in the United States, the City, through its director of public works, shall make a determination if the price of United States made steel or foundry is unreasonable. I understand that violations hereunder may result in forfeiture of contractual payments, f hereby affirm under the penalties of perjury that the facts and information contained in the foregoing bid for public works are true and correct. f Dated this day of 9 20 l Advanced Utility Systems, a division of N. Harris Computer Corporation ContractorlB"rider (Firm) Si nature of Contracfor/Brdder or ItsAgent 4- Subscribed and sworn to before me this My Commission Expires Ccaurowof id -once Non-Colluaon Non-Debarnient Affidavit Non Iran Form 2016 Peter Fanous, Executive Vice President Printed Name and Title day of ( vsAke Y , 20 Notary Public c—S C.t ` ADVANCED UTILITY SYSTEMS 12. Appendices Information considered by vendor to be pertinent to this project and which has not been specifically solicited in any of the aforementioned sections may be placed in a separate appendix section. Vendors are cautioned, however, that this does not constitute an invitation to submit large amounts of extraneous materials, appendices should be relevant and brief. Advanced and our customers have received the following awards and recognitions which validate the quality of our implementations. These include: • CS Week Expanding Excellence Awards Best Mobility Implementation - Awarded to Padre Dam Municipal Water District, CA for developing an innovative approach to improving customer service in the meter -to -cash Customer Experience Lifecycle by deploying Infinity.Mobile to serve their customers' needs • CS Week Expanding Excellence Awards - Best CIS Implementation - Finalist award presented to Connexus Energy for their highly successful CIS Infinity project • National Association of Counties (NACo) Achievement Award - Enhancing Customer Service through Technology - Awarded to Chesterfield City Utilities, VA for their implementation of CIS Infinity and Infinity.Link • CS Week and Electric Light & Power's Expanding Excellence Awards program - Best CIS Implementation - Awarded to Saint Paul Regional Water Services, MN for the implementation of CIS Infinity • Energy Planning Network - CIS Implementation Excellence Award for our implementation at the City of Bellevue, WA. The project was scored on project innovation, benefits, and project management and application quality. • Center for Digital Government - Best of California - Best Application Serving the Public - Awarded to Los Angeles City Department of Public Works for their deployment of Infinity.Link, utility customer self-service (My Waterworks Account Manager) City of South Bend, Indiana 81