HomeMy WebLinkAboutHosting Service and Information System Agreement - Systems & Software Inc - Utility Billing System Implementation1316 COUNTY -CITY BUILDING
227 W.JEFFERSON BOULEVARD
SOUTH BEND_ INDIANA 46601-1 930
Cameron Mahbubian
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186
CITY OF • BEND
BOARD OF PUBLICWORKS
November 27, 2018
Systems & Software, Inc.
426 Industrial Avenue, Suite 140
Williston, VT 05495
RE: Hosting Service Agreement and Information System Agreement
Dear Mr. Mahbubian:
PHONE 574/235-9251
FAx 574/235-9171
The Board of Public Works, at its meeting held on November 27, 2018, approved the above
referenced agreement for the implementation of enQuesta utility billing software in the
amount of $2,132,273 for five (5) years.
Enclosed please find the original of the agreement for your signature. Please sign and return
the original agreement to our office and retain a copy for your records.
If you have any further questions regarding this matter, please call this office at (574) 235-
9251.
Sincerely,
Linda M. Martin, Clerk
Enclosure
GARY A. GILOT SUZANNA . FRITZBERG ELIZABETH A. MARADIK JAMES A. MUELLER THERESE J. DORAU
4 INTER -OFFICE MEMORANDUM
M
'^ Department of Innovation & Technology
City of South Bend 227 W Jefferson Blvd
1865
TO: Board of Public Works, Linda Martin
CC: Eric Horvath, Jitin Kain, Al Greek, Kim Thompson, Clara McDaniels, Dan
O'Connor, Michael Schmidt
FROM: Matt Coats
SUBJECT: Utility Billing Software & Implementation Services Agreement
DATE: 11/20/18
Linda and Members of the Board,
We are submitting for approval and signing agreements for software, implementation services,
and hosting of Utility Billing software (enQuesta) by Systems & Software, Inc., following their
award of contract for the Utility Billing RFP.
The first agreement, titled Information Systems Agreement, covers implementation services
and then commits the City to a 5-year maintenance and support term for the enQuesta
software. Supplementing the delivery of software and implementation services are Exhibits 1-9,
which include a total cost & payment schedule (Exhibit 2), a Statement of Work (Exhibit 4), and
Systems & Software's response to the Utility Billing RFP (Exhibit 6).
A second agreement, titled Hosting Services Agreement (Exhibit 7), is an annually renewed
agreement that covers cloud hosting services for the enQuesta software. This agreement is
supplemented by a Managed Service Detail document (Exhibit 9).
The total cost for implementation services and annually recurring costs (maintenance &
support, cloud hosting) from years 1-5 is $2,132,273; a complete breakdown of implementation
costs and annually recurring fees can be found in Exhibit 2, Budget Detail and Notes.
Note that the City's project management services for this project, which are to be performed by
Arcadis Inc., are not included in this request and are not included in the cost of this request.
Per the request of the Board of Public Works, we can assert that the enQuesta software can
support the Indiana Utility Regulatory Commission's approved water rates and charges.
Thank you,
Matt Coats
Date
Name
BOARD OF PUBLIC WORKS
AGENDA ITEM REVIEW REQUEST FORM
11 /19/2018
Matt Coats
Department Innovation & Technology......
BPW Date 11/27/2018 Phone Extension 5817
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........... ...... _.... ....vv
Required Prior to Submittal to Board
Legal Attorney Name Clara McDaniels
Controller review is required for all Contracts $5,000.00 or more
Controller and greater than one year in length per the City Purchasing
Policy
Purchasing
Check the
LXJ Agreement
® Professional Services
❑ Bid Opening
D Quote Opening
E Chg Order No.
Ease./Encroach.
Other:
Company or Vendor Name
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MBE/WBE Contractor
Project Name
Project Number
Funding Source
Account No.
Amount
Terms of Contract
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❑ Title Sheet
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❑ MBE Completed E-Verify Form Attached El Yes
❑ WBE [] No
Utility Billing Software Implementation
_Support mmmServices for Software Implementation
620-0640657-31-06, 641-0630-793-39-10
$2,132,273
5 Year Term Wfor Maintenance & Support, Annually Renewed ITmmmmm
Hostina
Purpose/Description Implementation of enQuesta Utility Billing Software by Systems &
Software. Inc. Annual cost of maintenance & support is constant
throughout 5-vear term. hosting costs increases
Amount of El Increase
[:] Decrease
Previous Amount $
Current Percent of Change:
New Amount
Total Percent of Change:
Time Extension:
For Chime Orders Onl
Dispersal After Approval
Copy Original
❑ ❑ Matt Coats, coats thin. v
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INFORMATION SYSTEM AGREEMENT
This Information System Agreement and all Exhibits attached hereto ("Agreement") is made and entered into as of the later
of the two dates on the signature page ("Effective Date") by and between Systems & Software, Inc., a Vermont corporation
with its principal offices at 10 E Allen Street, Suite 201, Winooski, Vermont 05404 ("S&S"), and the City of South Bend, a
municipal government, with its principal offices at 227 W. Jefferson Blvd, South Bend, IN 46601 (the "Customer").
BACKGROUND
A. S&S has developed application software for use in the utilities industry and is in the business of implementing
information systems and providing related services to customers; and
B. Customer desires to license from S&S certain software and for S&S to implement an information system and
provide related services on Customer's behalf.
In consideration of the mutual promises and covenants contained in this Agreement, the parties agree as follows:
AGREEEMENT
1. DEFINITIONS
"Application Software" means the commercial off the shelf ("COTS") version of enQuestaTM software licensed to
Customer pursuant to this Agreement.
"Change Order" means any written documentation between S&S and the Customer evidencing their agreement
to change particular aspects of this Agreement.
"Confidential Information" means, with respect to a party hereto, all information or material which (a) gives that
party some competitive business advantage or the opportunity of obtaining such advantage, or (b) which is either (i) marked or
identified as "Confidential," "Restricted," or "Proprietary Information" or other similar marking or identification, (ii) known
by the parties to be considered confidential and proprietary, or (iii) from all the relevant circumstances should reasonably be
assumed to be confidential and proprietary. Confidential Information includes Customer's individually identifiable customer
information and also the Application Software and related Documentation all screen generator programs, program codes,
routines, methods, designs or objects, new product features and functions, the performance of the Application Software and the
negotiations between the parties prior to execution of this Agreement.
"Conversion" means those actions required to transfer selected portions of existing data (as such are described in the
SOW) from Customer's current computerized data to the Information System.
"Current Base System" means the version of the Application Software that has been commercially released by S&S
as of the Effective Date and the related Documentation.
"Customization" means the changing of any component of the S&S Current Base System during the original delivery
and implementation period of the Application Software installed prior to the System Acceptance Date.
"Delivery" means, as applicable, the earliest date of (a) initial installation to Customer of the Information System (or
components thereof); (b) delivery of the Information System (or components thereof) by S&S to a common carrier for transport
to Customer; and (c) performance of services by S&S.
"Documentation" means (i) with respect to the Application Software, the standard user -oriented instructions and
related materials for the operation of the Application Software in the form distributed by S&S generally to its customers,
together with updates, modifications and enhancements thereto; and (ii) with respect to the System Equipment, the standard
user -oriented instructions and related materials for the operation of the System Equipment in the form distributed by each
applicable third party vendor generally to its customers, together with updates, modifications and enhancements thereto.
"Go Live" means the date on which the Application Software is operating in a production environment processing
Customer's actual data.
"Hardware" means computer hardware.
"Information System" means the composite of Hardware, Operating System Software, Application Software and
Third Party Software provided by S&S.
Systems & Software, Inc.
"Major Release" means the commercial release of a new version of the Application Software that is identified by a
release number that is to the left of the first decimal point, such as 4.x, and that contains significant amounts of new or
significantly enhanced functionality and/or major changes to the product's architecture or file structure.
"Minor Release" means the commercial release of (i) a version of the Application Software that is identified by a
release number that is to the right of the first decimal point, such as x.1; and /or (ii) a set of software corrections and system
performance adjustments for the Application Software.
"Milestone Acceptance" means each of the dates on which a milestone listed on the Milestone Payment Schedule (as
set forth in Exhibit 2 (Milestone Criteria and Payment Schedule)) has been completed in accordance with the milestone criteria
specified in the Statement of Work. The parties acknowledge that Milestone Acceptance is expected to occur multiple times
(i.e., once for each of the line items listed on the Payment Schedule in Exhibit 2 (Milestone Criteria and Payment Schedule)).
In the event that Customer fails to notify S&S within ten business (10) days after receipt of S&S' sign -off request form that
Customer believes a particular milestone has not been achieved and the reasons therefore, then Customer shall be deemed to
have agreed and the particular milestone shall be deemed to have been completed.
"Operating System Software" means the third party computer operating system software described in Exhibit 1
(Budget Detail and Notes) that S&S delivers to Customer under this Agreement but which is subject to the license agreement
provided by such third party unless otherwise specified.
"Peripherals" means all non -server related Hardware components including, without limitation, disk storage,
workstations, printers, tape drives, modems.
"Project" means the procurement, implementation, training of personnel, and acceptance testing tasks necessary for
the implementation of the Information System for use by Customer.
"Site Preparation" means those physical installation and environmental conditioning tasks necessary to support the
Information System, including specified cabling, telecommunications, InternetNPN accessibility, network infrastructure,
connections, power supply and air conditioning.
"Source Code" means computer code in high level, human readable language, including comments and
documentation reasonably necessary to build and/or modify such code.
"SOW" means the Statement of Work attached hereto as Exhibit 4.
"Support Services" means the software maintenance and support services to be provided by S&S as further described
in Section 7 and in the S&S Support Program General Guidelines, as such guidelines may be amended by S&S from time to
time.
"System Acceptance" means the date on which a module or group of interrelated modules of the Application Software
is operating in a production environment processing actual Customer data in material compliance with the applicable
Documentation and Specifications. Customer's failure to notify S&S of any material defect(s) within sixty (60) days of S&S
notice that the module or group of interrelated modules are ready for Go Live shall constitute System Acceptance.
"System Equipment" means the Hardware, Peripherals, Operating System Software and Third Party Software.
"Term" means that the duration of the license for use of the Application Software described in Section 6(B) of this
Agreement, which duration shall be perpetual, subject to the provisions of the Information Systems Agreement.
"Third -Party Software" means the computer software that is described in Exhibit 1 (Budget Detail and Notes) that
S&S delivers to Customer under this Agreement but which is subject to the license agreement provided by such third party.
For avoidance of doubt, this term does not include the Application Software.
2. SCOPE OF PROJECT
S&S shall provide to Customer and implement the Information System comprised of the components described in Exhibit 1
(Budget Detail Notes). S&S shall use commercially reasonable efforts and work with designated Customer personnel to deliver
the Information System in accordance with the schedule set forth in the SOW. Customer shall fulfill its obligations set forth
in the SOW in a timely manner, ensure compliance with the specified Site Preparation, and otherwise provide and make
available to S&S such resources necessary for S&S to successfully implement the Information System.
Systems & Software, Inc.
AUTHORIZATION TO PROCEED; IMPLEMENTATION PROCESS
A. Authorization to Proceed. S&S shall, upon the Effective Date, commence with the procurement and
implementation of the Information System. Customer's execution of this Agreement constitutes Customer's agreement to the
terms herein and authorization for S&S to commence with the implementation of the Information System.
B. la tp& rza atatta a,wP'roce s. Each party shall comply with its respective obligations in connection with the
implementation process and as such are further described in Exhibit 4 (SOW).
4. FEES AND PAYMENT SCHEDULE
A. Fees. Customer's financial obligation to S&S for the Delivery of the Information System and related services
(as such services are expressly set forth herein) is set forth in Exhibit I(Budget Detail Notes). Each payment shall be payable
by Customer to S&S upon the completion of project payment milestones as provided in Exhibit 2 (Milestone Criteria and
Payment Schedule). S&S shall be entitled to invoice Customer immediately upon, as applicable, Delivery and/or Milestone
Acceptance. Upon execution of this Agreement, Customer shall also remit to S&S an initial deposit in the amount specified in
Exhibit 2 (Milestone Criteria and Payment Schedule) as Payment Number 1.
B. Invoices. All invoices submitted under this Agreement shall be due and payable within thirty (30) days of
delivery receipt date of the invoice. All amounts listed in this Agreement are in U.S. Dollars and shall be paid in U.S. Dollars.
C. Project Delays. If delays in the Project SOW occur on account of Customer's failure to timely complete its
responsibilities as set forth in the SOW, or as otherwise agreed by the parties, S&S shall have the right to issue an invoice and
collect respective payments at the time S&S has fulfilled its completed Delivery and/or Milestone Acceptance requirements
(with the exception of any requirements that S&S is unable to fulfill on account of Customer's failures), including the final
payment related to the final Milestone Acceptance. In the event the Information System becomes available for use in a
production environment but Customer decides to delay implementation of the Information System, such delayed
implementation shall not affect S&S' right to receive payment in accordance with the payment schedule set forth in this
Agreement.
D. Additional Items. In the event S&S provides Customer with additional hardware, software and/or related
services not specified in this Agreement, S&S shall be entitled to invoice Customer for such items pursuant to S&S' standard
fees for such items or other mutually agreed upon amounts, and such invoiced amounts shall be due and payable in accordance
with the terms set forth in this Section 4. All Additional Items and other changes to project scope shall be subject to Change
Order.
Systems & Software, Inc.
SYSTEM ACCEPTANCE
System Acceptance shall be deemed to occur in each subject or module area at such time an Application Software module or
group of interrelated modules (including any Customization) within thirty (30) (60) days of the date it is made available for use
by Customer from a test environment to a production environment and it performs in material compliance with the applicable
Documentation. If Customer notifies S&S in writing of material non-compliance of the Application Software during such
thirty (30) day period, S&S shall correct such material non-compliance with the Application Software and Customer shall have
an additional fifteen (15) days to test the corrected module or group of interrelated modules. In the event Customer fails to
notify S&S in writing of any material non-compliance of the Application Software within such thirty (60) day period (or, as
applicable, such fifteen (15) day period), System Acceptance shall be deemed to have occurred upon the expiration of the
applicable period. 6. OWNERSHIP; LICENSE
A. Owners 'Wo. S&S and its licensors shall have and retain sole and exclusive ownership of all right, title and
interest in and to the Application Software, including ownership of all trade secrets and copyrights pertaining thereto, subject
only to the license rights and privileges expressly granted to the Customer herein. Customer agrees that S&S and its licensors
shall have sole ownership of all improvements and modifications made to the Application Software, including without
limitation those made in connection with the Customization, regardless of whether such improvements and modifications are
made by S&S alone or together with the Customer or third parties. Nothing in this Agreement shall be construed as a
commitment of S&S to create improvements, modifications or future enhancements to the Application Software, other than
those expressly specified in this Agreement. Upon request and without the necessity for further consideration, Customer shall
take all necessary actions to assign ownership of the Application Software and Customizations to S&S.
B. 'License. In consideration of Customer's payment of amounts set forth in Section 4, S&S grants to Customer
a nonexclusive and nontransferable right and license to use the Application Software solely for Customer's internal business
purposes in accordance with the provisions in this Agreement for the duration of the Term. Customer may use the Application
Software on Hardware upgrades, additions or replacements; provided, however, the Customer must give S&S written notice in
advance of any such change so as to permit S&S to provide support and to be aware from a licensing perspective of the numbers
and types of Hardware on which the Application Software resides or is intended to reside. Customer agrees that it will not sell,
assign, transfer, disclose, sublicense, or otherwise make the Application Software available to others without the prior written
consent of S&S. Customer shall not create derivative works of the Application Software, meaning that the Customer shall not
create any software or other works that are based upon the Application Software or recast, transform or adapt the Application
Software in any manner. Customer shall not disassemble, decompile or "reverse engineer" the Application Software for any
purpose.
C. Additional License Terms.
(i) Customer may prepare one copy of the Application Software for backup purposes only; provided
that the backup copy may be used only during the term of the license and the copy shall be destroyed or returned to S&S upon
termination of the license. Customer may prepare a reasonable number of copies of the Documentation for internal use only;
provided that the copies of Documentation may be used only during the term of the license and the copies shall be destroyed
or returned to S&S upon termination of the license. All copies of the Application Software and Documentation must contain
the proprietary notices appearing on the copies as initially furnished to Customer. Except as permitted in this paragraph,
Customer shall not copy or otherwise reproduce the Application Software or the Documentation, in whole or in part, without
the prior written consent of S&S.
(ii) The Application Software is licensed in object code only. The Customer shall have no rights to the
Source Code except as expressly specified in this Agreement.
(iii) The Application Software is for use by the Customer in the current utility entity at the projected
User level and the current Customer Account volume (being the current number of metered or non -metered water, wastewater,
electric, gas, rental, refuse and other customers) specified in Exhibit 1 (Budget Detail Notes). The parties agree that, for
purposes of this Agreement, Customer's current account volume is considered to be accounts (the "Current
Account Volume"). The parties agree that, for purposes of this Agreement, the Customer's current number of users is
(the "Current Number of Users"). Customer agrees that, if Customer expands the number of Users beyond the
Current Number of Users, Customer shall pay an additional per User fee. The additional per User fee for the period of twelve
(12) months following the Effective Date shall be as specified in Exhibit 1 (Budget Detail Notes) and after such date the fee
Systems & Software, Inc.
4
shall be subject to pricing at S&S' then -current fees. Customer shall provide S&S with an annual report specifying the then
current number of Users.
(vii) The Application Software shall be used solely on the server environment described in Exhibit 1
(Budget Detail Notes) or as agreed to in writing by S&S. Third Party Software use and limits, including with respect to the
number of named or concurrent users, will be subject to the terms of each third party vendor's own license which will be entered
into separately between Customer and each third party vendor.
(viii) Customer shall take all reasonable steps to preserve the confidential and proprietary nature of the
Application Software and Documentation.
(ix) Customer shall limit access to the Application Software to employees, auditors, consultants and
agents of Customer who need access to the Application Software in order for the Customer to use the Application Software as
permitted herein. Customer shall inform all persons with access to the Application Software of the confidential and proprietary
nature of the Application Software and of the restrictions set forth in Section 10 of this Agreement.
(x) All Third Party Software is licensed to Customer solely and directly by the third party supplier of
such software, not by S&S. Customer, therefore, acknowledges and agrees that, notwithstanding the Delivery to the Customer
and Customer's payment to S&S for such software, Customer's rights, obligations and remedies regarding such software shall
be determined solely and exclusively by the terms and conditions of Customer's agreements with the third party supplier of
such software.
(xi) The parties acknowledge and agree that (a) the Application Software may include embedded third
party software components licensed by S&S for use in the Application Software; (b) the terms and conditions of Sections 8C,
8F, 8G, 8I and 10 of this Agreement shall inure for such third party's benefit and (c) subject to the license and sublicense rights
granted to S&S in connection with its use and distribution as part of the Application Software, the third party software owner
retains right, title and interest in such software, including statutory enforcement rights in the event of infringement.
SUPPORT SERVICES
A. S&S Su pg[LPrq rain. Beginning at initial installation of the Application Software, the Customer is required
to participate in the S&S Maintenance and Support Program ("S&S Support Program") for a period of five (5) years. Upon
completion of this five (5) years period, participation in the S&S Support Program shall be optional. Participation in this
Program is required to continue to receive support from S&S. Guidelines of this S&S Support Program are defined in Exhibit
3 (S&S Support Program General Guidelines). S&S may modify said guidelines from time to time. The Application Software
and systems support services described herein will be invoiced on a prorated basis through the end of then -current calendar
year and thereafter annually in -advance on a January through December calendar year basis. Thereafter on an annual basis,
S&S will provide Customer a support renewal quote for the upcoming year prior to the renewal date. The Customer must
provide sixty (60) days notice prior to their scheduled renewal date of their intent to renew or cancel the program. S&S reserves
the right to modify the S&S Support Program throughout the Term.
B. Exuhisions from Suyoort Services. S&S shall not be required to perform corrective maintenance as part of
its Support Services with respect to Application Software malfunctions caused by:
(i) Customer's modifications to the Application Software unless performed at the direction of S&S;
(ii) Customer's failure to use updates, enhancements or program error corrections;
(iii) Failure to use the Application Software in accordance with this Agreement; or
(iv) Actions beyond S&S' reasonable span of control with respect to Customer's actions which alter the
turnkey implementation environment, or cause Hardware or Third Party Software malfunctions.
C. Enrollment & Pricin . Customer agrees to begin participation in the S&S Support Program commencing at
initial installation of Application Software. Applicable pricing for the S&S Support Program for Years 1-5 are set forth in
Exhibit 1 (Budget Detail Notes). Thereafter on an annual basis, S&S will provide Customer a support renewal quote for the
upcoming year prior to the renewal date. The Customer must provide sixty (60) days notice prior to their scheduled renewal
date of their intent to renew or cancel the program. If the Customer elects to discontinue their participation in the S&S Support
Program S&S shall be under no obligation to continue providing maintenance services past the period for which Customer has
paid for enrollment in the S&S Support Program.
D. Reserved.
Systems & Software, Inc.
E. Maior and Minor Releases. S&S shall provide Major and Minor Releases to Customer as part of Support
Services; provided, that Customer is participating in the S&S Support Program.
F. 7:"ertnin tion of S pport Scrviccs• Trwisition to New Vendor; 'NDA 'Required from New Vendor
(i) In the event that Customer elects to replace the Information System with another vendor's product,
S&S will work with Customer to develop S&S' role in the transition. In order to protect the proprietary interests of S&S in the
Application Software, Customer agrees that any replacement vendor shall have only such access to the Application Software
as necessary to assist in the actual conversion. In the event a replacement vendor indicates that access to the Application
Software is necessary to implement the actual conversion, the Customer shall deliver a notice to S&S, containing an explanation
for the replacement vendor's need to access the Application Software, at least fifteen (15) days prior to allowing the replacement
vendor access to the Application Software. S&S shall have the right, in its discretion, to have a representative of S&S present
at the Customer's facility at all times when any replacement vendor has access to the Application Software. Customer will
cooperate by providing S&S with scheduling information necessary to facilitate such presence. Any replacement vendor or
other outside party required to assist in transition from the Application Software to another vendor shall execute a
confidentiality and non -disclosure agreement in a form reasonably satisfactory to S&S, prior to the time said vendor or other
third party has access to the Application Software.
(ii) Customer shall provide written notice to S&S at least sixty (60) days in advance of the conversion.
Customer and S&S shall develop a plan for services that the Customer desires in connection with a transition period to its new
system. In the event the transition plan requires S&S to provide services in addition to its standard support services under this
Agreement (and provided that S&S agrees to provide such services), Customer shall pay S&S for any such services in
accordance with S&S' then -current hourly or other applicable rates. Customer shall be responsible to pay S&S under the then
current Annual Maintenance and Support Contract through the end of the calendar year in which the conversion is completed;
provided that, if the conversion is completed prior to June 30 of that year, S&S will prorate the fees for said final year in such
manner to require the Customer's payment of six months rather than twelve months. S&S shall continue to support the
Customer as outlined in the S&S Support Program through the transition period so long as the Customer continues to pay S&S
the applicable fees and is not in material breach of this Agreement.
WARRANTIES; DISCLAIMERS; INDEMNIFICATION
A. S&S warrants that all Application Software products delivered under this Agreement will perform in material
compliance with the Documentation for the period ending thirty (30) days after System Acceptance (the "Warranty Period").
S&S further agrees to furnish promptly and without additional charge, all labor and parts necessary to remedy any such defect
that occurs during the Warranty Period; provided that S&S must receive the notice of defect during the Warranty Period.
Thereafter support of the Application Software will be performed under the S&S Support Program, provided that Customer is
validly participating in the S&S Support Program and is current with all fees due to S&S in connection therewith.
B. S&S agrees that, to the extent permitted, it will pass through to the Customer any and all warranties that S&S
receives from any manufacturer or supplier of any of the System Equipment. In the event that any component of the System
Equipment has a defect in materials or workmanship or has an operating failure that occurs from normal use thereof, S&S shall
use commercially reasonable efforts to work with the third -party supplier to provide a timely solution for the Customer.
C. Customer acknowledges that any warranty provided by S&S is limited to the Application Software and used
on the Customer's computer system listed in Exhibit 1 (Budget Detail Notes). Customer further acknowledges that
modifications made to the Application Software by Customer, and not at the direction of S&S, will void S&S' warranty of the
Application Software, unless specifically stated otherwise in writing by S&S. Customer also acknowledges that S&S cannot
be responsible for the Customer's use of third -party software or hardware products that are used or implemented in conjunction
with S&S' Information System, including Third Party Software and Hardware, and such other systems and modules where
S&S did not consult on, provide, or configure the systems.
D. S&S represents and warrants that all Third Party Software product manufacturers, listed in the Budget Detail,
have authorized S&S to grant licenses or sub -licenses to such software.
E. S&S' obligation for breach of warranty shall include timely correction or replacement of the module or
component of the Application Software that fails to conform to such warranty. In no event shall S&S be liable for any breach
of warranty unless notice thereof is given to S&S by the Customer during the Warranty Period.
F. UNDER NO CIRCUMSTANCES SHALL S&S BE LIABLE FOR ANY SPECIAL, INDIRECT,
CONSEQUENTIAL, PUNITIVE OR INCIDENTAL DAMAGES OF ANY KIND INCLUDING, BUT NOT LIMITED TO,
Systems & Software, Inc.
DAMAGES FOR LOSS OF PROFITS, WORK STOPPAGE, SYSTEM FAILURE OR MALFUNCTION, LOSS OF DATA
OR ANY OTHER DAMAGES OR LOSSES IN CONNECTION WITH THE USE OF THE INFORMATION SYSTEM OR
OTHERWISE, EVEN IF S&S HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
G. To the extent permitted by applicable law, except with respect to (a) S&S' intellectual property
Indemnification obligation set forth in Section 8(h), or, (b) damages to tangible property or injury or death to persons, both
parties agree that the aggregate liability of S&S for all claims, suits, actions and proceedings however arising, directly or
indirectly, under or relating to this Agreement or its subject matter, including those based on breach or rescission of contract,
tort, breach of trust, or breach of fiduciary duty shall not exceed, in the aggregate, the total value of fees paid by Customer to
S&S for the item of software or services giving rise to such liability. Nothing in this paragraph shall be construed as creating a
right on the part of Customer to receive any indirect, special, incidental or consequential damages, except to the extent such
damages are expressly mandated by statute.
H. In the event there is a third party claim alleging that Customer's use of the Application Software in accordance
with this Agreement constitutes an infringement of a United States patent, copyright, or trade secret, S&S shall, at its expense,
defend Customer and pay any final judgment against Customer or settlement agreed to by S&S on Customer's behalf, provided
that Customer promptly notifies S&S of any such claim or proceeding and shall give S&S full and complete authority,
information, and assistance to defend such claim or proceeding. S&S shall have sole control of the defense of any claim or
proceeding and all negotiations for its compromise or settlement, provided that S&S shall consult with the Customer regarding
any settlement of the claim.
In the event that the Application Software product is finally held to be infringing and its use by the Customer
is enjoined or S&S deems that it may be held to be infringing, S&S shall, at S&S' election: (1) procure for the Customer the
right to continue use of the Application Software; or (2) modify or replace the Application Software so that it becomes non -
infringing; or (3) in the event S&S determines that (1) or (2) is not commercially practicable, S&S may terminate the license
with respect to the infringing module and refund or credit to Customer the license fees paid by Customer under this Agreement
in connection with such module, less a pro rata credit for each full or partial month of the ten (10) year period and Customer
shall return the original and all whole or partial copies of the module and related Documentation.
S&S shall have no liability hereunder if the Customer has modified the Application Software in any manner
without the prior written consent of S&S.
The foregoing states S&S' entire liability, and the Customer's exclusive remedy, with respect to any claims
of infringement of any copyright, patent, trade secret, or other property interest rights relating to the Information System, or
any part thereof, or use thereof.
I. The warranties contained in this Section-8 are in lieu of all other warranties, express or implied. S&S' express
warranties shall not be enlarged, diminished or affected by, and no obligations or liabilities shall arise out of, S&S' rendering
of technical or other advice or service in connection with the Third Party Software, Hardware and any other products. EXCEPT
FOR THE WARRANTIES EXPRESSLY SET FORTH IN THIS AGREEMENT, S&S DISCLAIMS AND EXPRESSLY
WAIVES ALL WARRANTIES, EXPRESS AND IMPLIED, INCLUDING WITHOUT LIMITATION, ANY IMPLIED
WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE. CUSTOMER ACKNOWLEDGES THAT NO
REPRESENTATIONS OTHER THAN THOSE CONTAINED IN THIS AGREEMENT HAVE BEEN MADE WITH
RESPECT TO THE GOODS OR SERVICES TO BE PROVIDED UNDER THIS AGREEMENT, AND THAT CUSTOMER
HAS NOT RELIED ON ANY REPRESENTATION OR WARRANTY NOT EXPRESSLY SET OUT HEREIN.
9. SOURCE CODE ESCROW
The Customer may, at Customer's option, enter into an escrow arrangement with S&S. Upon the Customer's request, Customer
shall be presented with the standard escrow beneficiary enrolment document for participation in S&S's source code escrow
arrangement with an escrow agent (the "Escrow Agreement"). The Escrow Agreement shall specify that the Source Code may
be made accessible to the Customer only in the event that S&S (a) whether directly or through a successor or affiliate, shall
cease to be in the software business, (b) should be declared bankrupt or insolvent by a court of competent jurisdiction. The
Source Code supplied pursuant to this Section shall be subject to each and every restriction on use and disclosure set forth in
this Agreement, and the Customer acknowledges that the Source Code and its associated documentation is the property of S&S
and will use its best efforts to prevent unauthorized use or disclosure of the Source Code.
10. CONFIDENTIALITY
Systems & Software, Inc.
A. S&S and Customer shall each hold the other's Confidential Information in confidence. Neither party shall
make the other's Confidential Information available in any form to any third party or use the other's Confidential Information
for any purpose other than as specified in this Agreement. Information shall not constitute Confidential Information if it is
publicly known or in the public domain through no breach of this Agreement by Customer or S&S. Neither party's obligations
of non -disclosure and non-use shall extend to information that is required to be disclosed or requested in connection with any
judicial or quasi-judicial proceeding, including, but not limited to, any administrative proceedings or public records requests,
provided the disclosing party shall give the other party reasonable notice of its intention to disclose information.
B. This Agreement does not diminish, revoke or supersede any existing confidentiality, non -disclosure or
similar agreement between the parties. The obligations of the parties set forth in this Section are in addition to the obligations
of the parties set forth in any existing confidentiality, non -disclosure or similar agreement or otherwise arising under applicable
law. In the event that this Section is in conflict with any provision of an existing agreement covering confidentiality or non-
disclosure obligations, the provision that provides stronger protection to the disclosing party shall govern.
11. TERMINATION, CANCELLATION OR MODIFICATION
A. This Agreement shall automatically terminate, and the license granted hereunder shall be automatically
revoked, at such time as (i) Customer ceases to use the Application Software in a production environment; or (ii) Customer
breaches this Agreement in such manner that adversely impacts S&S' proprietary rights in the Application Software and fails
to cure such breach upon notice pursuant to Section 11(B) below.
B. This Agreement may not be canceled or modified except by the written mutual consent of both parties or as
otherwise provided in this Agreement. If either party is in material breach of any of the terms and conditions of this Agreement,
the aggrieved party shall give written notice thereof, including a reasonably detailed statement of the nature of such breach, to
the breaching party. The breaching party will have thirty (30) days after notice is given to cure such breach or, if the breach
cannot reasonably be cured within thirty (30) days, the breaching party shall provide a written estimate of the time needed to
cure such breach, shall commence to cure such breach within ten (10) days of notice from the aggrieved party and shall
diligently continue to prosecute such cure to completion. If the breaching party fails to cure, commence to cure in a timely
manner, or diligently prosecute such cure to completion, the aggrieved party, at its option, shall be entitled to terminate this
Agreement or suspend its performance under the Agreement for as long as the breach remains uncorrected, and avail itself of
any and all remedies available under this Agreement.
C. Upon termination of this Agreement, Customer shall cease use of the Application Software and return to
S&S or destroy all copies of the Application Software and all Documentation in the Customer's possession or under its control.
Within ten (10) days after termination of this Agreement, Customer shall send written confirmation to S&S, by first class
certified mail, return receipt requested, that Customer (i) has completed such destruction or return of the Application Software
and Documentation; (ii) has not permitted any improper disclosure, use of, or access to the Application Software or
Documentation; and (iii) acknowledges and agrees that Customer remains bound by the confidentiality provisions set forth in
Section 10 of this Agreement. Customer agrees that S&S shall have the right to disable the Application Software upon the
termination of this Agreement; provided that S&S shall not disable the Application Software if the Customer is contesting the
termination of this Agreement in good faith and Customer continues to pay all fees required by this Agreement and any future
agreements when due. In the event that the Customer contests the termination in good faith, the parties shall use their best
efforts to promptly resolve the dispute.
*�3WI&ITA.
In the event that a court of competent jurisdiction holds that a particular provision or requirement of this Agreement is in
violation of any applicable law, each such provision or requirement shall be enforced only to the extent it is not in violation of
such law or is not otherwise unenforceable and all other provisions and requirements of this Agreement shall remain in full
force and effect.
13. DISPUTE RESOLUTION
In the event of a dispute under this Agreement (except any dispute involving confidentiality or infringement, in which case the
non -breaching party is not barred from directly pursuing any legal remedy available to it, including litigation), S&S and
Customer agree that they will work together in good faith in the following manner: first, to resolve the matter internally by
Systems & Software, Inc.
discussions among the persons who are responsible for the particular issue; second, to resolve the matter internally by
discussions among the executives of the parties; and third, if the first two methods are not successful, to attempt to resolve the
dispute by means of mediation. Except as otherwise stated in this Section, any dispute, issue, conflict, or controversy arising
from, under or in relation to this Agreement which cannot otherwise be resolved by the parties shall be subject to mediation.
The mediation shall occur at a location in St. Joseph County in the State of Indiana (or another mutually agreeable state) agreed
to by the parties. The mediation shall be conducted by an impartial mediator who has experience with computer software
contract disputes and who is acceptable to both parties. The parties shall engage in mediation in good faith and use
commercially reasonable efforts to resolve their dispute via mediation. If, after using such efforts, the parties have not resolved
their dispute, either party may, at its option, resort to litigation. The mediation will commence upon 90 days' written notice of
a demand for mediation or such other date agreed to by the parties. If one party unilaterally refuses to commence mediation
within said time frame, the other party shall no longer be bound to mediation and may, at its option, initiate litigation. Each
party shall be responsible for its own attorneys' fees and all costs of mediation shall be borne equally by the parties.
14. MUTUAL INDEMNIFICATION
A. S&S agrees to indemnify, defend and hold harmless the Customer, its directors and officers, and its
employees and agents (collectively, the "Customer Indemnified Parties") from any and all claims, costs, expenses (including
reasonable attorneys' fees), damages, liabilities or judgments, relating to injuries to persons or damage to property to the extent
that the same arise out of the work or activities of S&S or its employees, subcontractors, or agents in connection with the
Project. Notwithstanding the foregoing, S&S shall have no obligation under the foregoing sentence if the claim, cost or other
item was due to the negligence of the Customer or any of the other Customer Indemnified Parties.
B. Customer agrees to indemnify, defend and hold harmless S&S, its directors and officers, and its employees
and agents (collectively, the "S&S Indemnified Parties") from any and all claims, costs, expenses (including reasonable
attorneys' fees), damages, liabilities or judgments, relating to injuries to persons or damage to property to the extent that the
same arise out of the work or activities of Customer or its employees, subcontractors, or agents in connection with the Project.
Notwithstanding the foregoing, Customer shall have no obligation under the foregoing sentence if the claim, cost or other item
was due to the negligence of S&S or any of the other S&S Indemnified Parties.
15. INSURANCE
S&S represents that the Certificate of Insurance attached hereto as Exhibit 5 (Certificate of Insurance) (the "Certificate of
Insurance") properly reflects the insurance coverage that S&S currently has in place for commercial general liability, workers'
compensation, and errors and omissions policies.
16. FORCE MAJEURE
Neither party shall be responsible for delays or failures in performance resulting from major substantive acts beyond the control
of such party. Such acts shall include, for example, but not be limited to, acts of God, riots, acts of war, epidemics,
governmental regulations superimposed after the fact, earthquakes or other natural disasters.
17. NOTICES; PARTY REPRESENTATIVES
All notices required or permitted to be given hereunder shall be in writing and shall be delivered in hand or sent by first-class
mail, postage prepaid, or by a nationally recognized overnight courier, to the parties at the following addresses or other such
address or addresses as to which a party shall have notified the other party in accordance with this Section:
If to S&S:
Systems & Software, Inc.
10 E Allen Street, Suite 201
Winooski, Vermont 05404
Attention: EVP, Cameron Mahbubian
If to Customer:
City of South Bend, Utility Billing Office
209 N Main Street, Suite #207
South Bend, Indiana 46601
Attention: Director of Utilities
The City of South Bend's Project Manager shall act as representatives of the Customer, and the EVP shall act as representative
of S&S with respect to this Agreement. These persons shall have the authority to transmit instructions, receive information,
Systems & Software, Inc.
interpret and define policies and make decisions with respect to the Project. Additional and substitute representatives of S&S
and the Customer may be added by written notice of one party to the other.
18. INDEPENDENT CONTRACTORS
The relationship of the parties is that of independent contractors, and nothing herein shall be construed to create a partnership,
joint venture, franchise, employment, or agency relationship between the parties. Neither party shall have any authority to
enter into agreements on behalf of the other or to bind or obligate the other in any manner.
19. NAMING THE CUSTOMER AS A REFERENCE; PRESS RELEASE
Customer agrees that S&S may, at its option, name Customer as a reference for prospective customers and identify Customer
as a customer for S&S' promotional purposes, including without limitation in press releases, on S&S' web site, and in
presentations to prospective customers. Customer agrees to work with S&S to plan and conduct demonstrations of the
Application Software for prospective S&S customers at the Customer's offices; provided that S&S shall provide reasonable
notice to Customer in advance and shall coordinate with Customer to ensure that the demonstration does not disrupt Customer's
business. S&S agrees that timing and number of requests for demonstrations to prospective S&S customers at the Customer
site shall be not be unreasonable.
20. GOVERING LAW; JURISDICTION; VENUE
This Agreement shall be governed by the laws of the State of Indiana, without giving effect to the principles of conflicts of
laws. Each party consents to exclusive jurisdiction and venue in the state and federal courts sitting in St. Joseph County,
Indiana. Each party waives all defenses of lack of personal jurisdiction and forum nonconveniens.
21. ENTIRE AGREEMENT
This Agreement, including the Exhibits attached hereto, constitutes the entire agreement between the parties with respect to the
Information System. Accordingly, all prior agreements, representations, statements, negotiations and undertakings are hereby
superseded, except as otherwise specified in Section 10(B) above.
22. BINDING EFFECT; ASSIGNMENT.
This Agreement shall be binding upon and inure to the benefit of S&S and the Customer and their permitted successors and
assigns. Neither party may assign this Agreement or any right or interest under this Agreement, nor delegate any work or
obligation to be performed hereunder, without the other party's prior written consent. Notwithstanding the foregoing, either
party may assign this Agreement to its successor, without the other party's consent, in the event of a sale of substantially all of
its assets or in the event of a merger pursuant to which substantially all of its assets are transferred to the surviving entity, as
long as said successor assumes all liabilities and obligations hereunder.
23. COUNTERPARTS
This Agreement may be executed in any number of counterparts and by the different parties hereto on separate counterparts,
each of which when so executed and delivered shall be an original document, but all of which counterparts shall together
constitute one and the same instrument.
24. EXHIBITS
The following Exhibits, attached hereto and incorporated herein by reference, form a part of this Agreement:
Exhibit 1
- Budget Detail and Notes
Exhibit 2
- Milestone Criteria and Payment Schedule
Exhibit 3
- S&S Support General Guidelines
Exhibit 4
- Statement of Work (SOW)
Exhibit 5
- Certificate of Insurance
Exhibit 6
- RFP Functional Requirements (including S&S response)
Exhibit 7
- Hosting Agreement
Systems & Software, Inc.
10
Exhibit 8 - Escrow Agreement
Exhibit 9 - Managed Services Details
IN WITNESS WHEREOF, the parties accept and agree to the terms of this Agreement.
City of South Bernd
Board of Public Works
Date:
�,,..
_.................................................. ...............W... _ ._............... .......
.....
Gary Gilot, 'President
Therese Dorau,M cniber
i nna °citzberg, Me Aber
Elizabeth Maradik, Member
James Mueller, Member
1 rya Martin, Clerk
Systems & Software, tile.
Date:
Signature
Printed Name
Title
Systems & Software, Inc.
11
Hosting Service Agreement
This Hosting Service Agreement (the "Agreement"), is entered into on 11/27/2018 (the "Effective Date") by
and between the City of South Bend ("City") and Systems & Software, Inc. ("Systems & Software").
WHEREAS, concurrently with the execution of this Hosting Agreement, the City will enter into an Information
Systems Agreement with Systems & Software to acquire a license to use the Software from Systems & Software
and receive Support Services as defined within the S&S Support Program General Guidelines (Exhibit 3 of the
Information Systems Agreement) in respect of the Software.
WHEREAS, Systems & Software wishes to offer the use of Hosting and Managed Application Services, and the
City wishes to use these Services for the Software. Please see appendix A, S&S Managed Services, for details
of the Environments and Applications to be Hosted, the Managed Infrastructure SLA, and the Managed
Application SLA.
NOW THEREFORE, in consideration of the mutual covenants set out in this Hosting Agreement and for other
good and valuable consideration (the receipt and sufficiency of which is hereby acknowledged), the parties agree
as follows:
1. Definitions
The following terms shall have the meaning set out below, all other capitalized terms not otherwise defined in this
Section shall have the meaning set forth in the Agreement:
(a) "Annual Hosting Fees" means the annual Hosting fees set out in Information Systems Agreement.
(b) "Change Order" means any written documentation between the City and Systems & Software
evidencing their agreement to change particular aspects of this Agreement.
(c) "Completion of Services" means the Professional Services are complete and shall be deemed to
have occurred on the date which the City commences using the Hosting Services.
(d) "Confidential Information" means, with respect to a party hereto, all information or material which: is
marked "Confidential," "Restricted," or "Proprietary Information" or other similar marking, is confidential
under federal or state law. Confidential Information of Systems & Software shall include, without
limitation, the Software, the Documentation marked "Confidential," "Restricted," or "Proprietary" by a
Party, including without limitation, all information disclosed by Systems & Software relating to the
security of its facilities, computer systems and products. 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 and which
such independent development can be established using evidence that would be acceptable to a court
of competent jurisdiction. Neither party's obligations of non -disclosure and non-use shall extend to
information that is required to be disclosed or requested in connection with any judicial or quasi-judicial
proceeding, including, but not limited to, any administrative proceedings or pursuant to Indiana's
Access to Public Records Act (I.C. 5-14-3-1 et seq.)
(e) "Data" means all data that is provided by City to Systems & Software and all other content transmitted,
posted, received or created through City's use of the Hosting Services or the Software.
(f) "Documentation" means user guides, operating manuals, education materials, product descriptions
and specifications, technical manuals, supporting materials, and other information relating to the
Software or used in conjunction with the Software, whether distributed in print, magnetic, electronic, or
1 of 12
video format, in effect as of the date the Software are provided to the City.
(g) "Fees" means the Annual Hosting Fees and Professional Services Fees.
(h) "Professional Service(s)" means the set-up activities required at the hosting site to ensure that the
Hosting Services will be provided in accordance with this Agreement.
(1) "Professional Services Fees" means the professional service(s) fees set out in Information Systems
Agreement of this Agreement.
Q) "Hosting Services" means the hosting services to be provided by or on behalf of the Systems &
Software under this Agreement that includes hosting, monitoring, and operating the systems and
software owned or controlled by Systems & Software required to deliver the Software granted to the
City pursuant to the Information Systems Agreement.
(k) "Software" means the software product(s) that Systems & Software licensed to City pursuant to the
Information Systems Agreement.
(m) "Support Services" means those support services provided pursuant to the S&S Support Program
General Guidelines.
(n) "Third Party Components" means any third party telecommunications, energy/utility transportation,
managed facilities and/or software applications and services that Systems & Software or its service
providers has licensed or purchased and provided access to or otherwise made available to City as
part of the Hosting Services.
(o) "User" means an employee or agent of City that has been authorized by the City in writing to access
and use the Software solely for such City's internal use as part of the Hosting Services.
2. Authorization
Subject to the terms and conditions of this Agreement, including without limitation, payment by City of the Annual
Hosting Fees, Systems & Software hereby grants to City a personal, non-exclusive, non -transferable limited right
during the Term to allow Users to access and use the Hosting Services solely in connection with its use of the
Software as, permitted pursuant to the Information Systems Agreement.
3. Fees
In consideration of receiving the Hosting Services and the Professional Services, City agrees to pay to Systems &
Software the Fees as described in the Information Systems Agreement in accordance with the payment terms set
out in Information Systems Agreement.
4. Hosting Services Term
Unless terminated earlier in accordance with the terms hereof, this Agreement shall commence on the Effective
Date and shall continue for a period of one (1) year (the "Initial Term"). Thereafter on an annual basis, Systems
& Software will provide City a renewal quote for the upcoming year prior to the renewal date. The City must
provide sixty (60) days notice prior to their scheduled renewal date of their intent to renew or cancel the Hosting
Services. The Initial Term and Renewal Term(s) shall collectively be referred to as the "Term".
5. Restrictions on Use
(a) Except as expressly provided herein, the City may not give away, rent, lease or otherwise sell, re -sell,
sublicense, distribute or transfer the license rights granted under this Agreement or otherwise use the Hosting
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Services or the Software except as expressly permitted by this Agreement and the Information Systems
Agreement without the prior written consent of Systems & Software.
(b) The City agrees that it will not reverse engineer, decompile, translate or otherwise attempt to derive, or permit
or help others to derive the source code relating to all or any part of the Software or attempt to otherwise
convert or alter the Software into human readable code, except to the extent applicable law expressly prohibits
the foregoing restriction.
(c) No third party, other than duly authorized agents or employees of the City authorized pursuant to Section 2
hereunder, shall have access to or use of the Software.
(d) The City shall not copy, frame or mirror any part or content of the Hosting Services, other than copying or
framing on City's own intranets or otherwise for City's own internal business purposes.
(e) The City shall not access the Hosting Services in order to (i) build a competitive product or service; (ii) copy
any features, functionality or graphics of the Software; or (iii) knowingly allow access to any competitor of
Systems & Software.
(f) The City shall not transmit, upload, post, distribute, store or otherwise publish, through use of the Hosting
Services, any data, material or Information that: (i) contains a software virus, Trojan horse, worm or other
harmful or deleterious computer code, files or programs that may adversely affect any hardware or software,
or that intercepts or misappropriates any data or information; (ii) is threatening, defamatory, libelous, harassing,
profane, is an invasion of privacy, offensive, obscene or harmful; (iii) infringes or otherwise violates any patent,
copyright, trademark, trade secret or other intellectual property or proprietary right of any third party; (iv)
violates any law, statute, ordinance or regulation
(g) The City shall not interfere with or disrupt services or networks connected to the system used to provide the
Hosting Services and shall not attempt to gain unauthorized access to the Hosting Services or such services
or networks connected to the system used to provide the Hosting Services.
(h) The City shall not provide the results of using the Hosting Services for the purposes of monitoring its availability,
performance, functionality, benchmarking or competitive analysis to any third party.
(i) In addition to its termination rights under Section 11, Systems & Software my restrict or limit City's access to
the Hosting Services if Systems & Software reasonably determines that City has engaged in or is likely to
engage in (whether knowingly or unknowingly) any prohibited conduct described herein and such conduct, in
Systems & Software's reasonable opinion poses any risk of any kind or nature to Systems & Software or its
service providers' network, business or other Cities. As promptly as practicable after becoming aware of City's
engagement in any such prohibited conduct, Systems & Software will use reasonable efforts to notify City of
the restriction or limitation to City's access to the Hosting Services and will promptly restore City's access after
Systems & Software has had reasonable assurance that such conduct has been permanently discontinued.
In addition to and without limiting the foregoing, Systems & Software reserves the right to refuse to post or to
remove in whole or in part any information or materials provided or submitted by or on behalf of City in
connection with its use of the Hosting Services that Systems & Software determines, in its reasonable
discretion, are either in violation of this Agreement or pose any risk of any kind or nature to Systems & Software
or its service provider's network, business or other Cities.
6. Hosting Services
(a) The Systems & Software shall provide the facilities, equipment, and software to deliver the Hosting Services.
The Systems & Software shall have the right to manage all resources used in providing the Hosting Services,
as the Systems & Software deems appropriate. The system resources that are used by Systems & Software
to provide the Hosting Services may be used for the applications of other Systems & Software customers or
third parties.
(b) Systems & Software shall host and provide access to the Software Users, subject to scheduled periods of non-
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availability as described in Appendices "B" and "C".
The City and Systems & Software agree that assignment of responsibilities for the maintenance of the Hosted
Infrastructure and Hosted Application will be as contracted in the Information Systems Agreement and defined
in appendix A, RFQ5 SS Managed Services.
(e) The Systems & Software shall comply with the terms and conditions regarding access and use of Data as set
out in Section 13 of this Agreement.
(f) City acknowledges that in order to provide the Hosting Services City may be required to purchase access to
Third Party Components. City further acknowledges that the availability of such Third Party Components is
based solely on the best information available to Systems & Software and its service providers as of the
Effective Date including third party representations and government regulations and is subject to change
during the Term with little or no advance notice. If any necessary Third Party Components are determined by
Systems & Software to be unavailable as a result of changes to any third party availability, governmental
regulations or other condition or circumstance outside of Systems & Software's control, then (a) Systems &
Software shall not be in breach hereof or otherwise liable for any failure or inability to provide the Hosting
Services as a result of such unavailability of any Third Party Components; and (b) City may be required to
change or replace the applicable Third Party Components or otherwise attempt to mitigate the impact of the
such unavailability of Third Party Components.
7. City Responsibilities
(a) Co-operation by City -- The City acknowledges that the success and timeliness of the implementation process
shall require the active participation and collaboration of the City's and its staff and agrees to act reasonably
and co-operate fully with Systems & Software to achieve the Completion of Services related to any
Professional Services supplied by Systems & Software. To enable Systems & Software to provide effective
Support Services, the City will establish auto remote access based on remote access procedures compatible
with Systems & Software's practices.
(b) Project Manager -- The City shall appoint a project manager who shall work closely with Systems & Software
to facilitate the successful completion of the implementation process and who shall be responsible for
supervising the staff of the City and their co-operation with and participation in such process during any
Professional Services.
(c) City Equipment. City agrees that it shall be responsible, at its sole expense, for providing Internet access,
including but not limited to obtaining, installing and maintaining all equipment, hardware, network, Internet or
direct telecommunications connections and software applications (e.g. web browser) at its facilities required
for Users to access and use the Software. Systems & Software shall not be responsible for the operation of
the City's Internet, network or other communication services. The City further acknowledges that the operation
of the Software requires the City's and Users' hardware to be of sufficient quality, condition and repair, and the
City agrees to maintain their applicable hardware in the appropriate quality, condition and repair at its sole cost
and expense. These requirements may also be necessary in order to facilitate the achievement of Completion
of Services related to any Professional Services supplied by Systems & Software.
(d) Passwords. City and its Users shall be responsible for keeping any and all passwords and user ID's assigned
to it its Users secret and confidential. City agrees that it is and shall remain solely and completely liable for any
communications or other uses that are made using City's or its Users' passwords and user ID's, as well as any
obligation that may result from such use. City agrees to notify Systems & Software in writing if it believes that
a password has been stolen or might otherwise be misused. City agrees to notify Systems & Software
immediately of any unauthorized use of any password or user ID or any other breach of security suspected by
City.
(e) Users. The City is responsible for: (i) the actions of Users using the Hosting Services in accordance with this
Agreement; (ii) ensuring that Users agree to any further terms and conditions as may be provided by Systems
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& Software from time to time for Users; and (iii) informing Systems & Software of any information about Users'
actions that may affected either the Software or third party data contained in the Software, or Systems &
Software's ability to provide Hosting Services as contemplated by this Agreement.
M Compliance with Laws. City represents and warrants to Systems & Software that it and its Users will at all
times be in compliance with all applicable local, state, provincial, and federal laws including but not limited to
those laws regarding restrictions on exports, defamation, libel, harm to reputation, invasion of privacy, misuse
or failure to protect personal information, violation of secrecy, confidentiality, unfair competition and other
situations which could generate liability.
(g) Data Security. City acknowledges and agrees that use of or connection to the Internet is inherently insecure
and provides opportunity for unauthorized access by a third party to City's and its Users' (as well as Systems
& Software's) computer systems, networks and any and all information stored therein. City is solely
responsible for ensuring that (i) City's computer systems are secure and protected from unwanted interference
(such as "hackers" and viruses), (ii) all transmissions are free from viruses or other harmful code prior to
transmission to Systems & Software's servers; and (iii) that Data transmitted to Systems & Software is
encrypted. Some content may be subject to governmental regulations or may require security measures
beyond those specified by Systems & Software for an offering. City will define and provide the Systems &
Software with the specifications for encryption in accordance with City's standards and needs.
WHERE THE PRIVACY, SECURITY, AUTHENTICITY, OR ACCURACY OF ANY INFORMATION ARE
IMPACTED BY TRANSMISSION ACROSS THE INTERNET THE SYSTEMS & SOFTWARE WILL NOT BE
HELD RESPONSIBLE. THE SYSTEMS & SOFTWARE SHALL NOT BE RESPONSIBLE FOR ANY
ADVERSE CONSEQUENCES WHATSOEVER OF CITY'S OR ITS USERS' CONNECTION TO OR USE OF
THE INTERNET, AND SYSTEMS & SOFTWARE SHALL NOT BE RESPONSIBLE FOR ANY USE BY CITY
OR ANY USER OF CITY'S INTERNET CONNECTION IN VIOLATION OF ANY LAW, RULE OR
REGULATION.
8. Warranty and Warranty Disclaimer
a) Limited Warranty. Systems & Software warrants to City that the Hosting Services shall be performed at a
level and shall substantially conform to the specifications, as stated in Systems & Software's manuals and
other documentation provided to City, provided that all use of the Hosting Services is for the purposes and in
the environment for which they were designed and in accordance with such specifications. City's sole remedy
in the event the Hosting Services do not conform to the foregoing limited warranty is for Systems & Software
to use commercially reasonable efforts to correct such non-conformance and the right to terminate this
Agreement in accordance with Section 11(a).
b) Warranty Disclaimer. TO THE GREATEST EXTENT PERMITTED BY LAW, EXCEPT FOR THE EXPRESS
LIMITED WARRANTY SET OUT IN SETION 13(A), THE HOSTING SERVICES, THE SOFTWARE, THE
PROFESSIONAL SERVICES AND ANY OTHER PRODUCTS OR SERVICES PROVIDED UNDER THIS
AGREEMENT ARE PROVIDED TO CITY "AS IS" AND THERE ARE NO OTHER WARRANTIES,
REPRESENTATIONS OR CONDITIONS, EXPRESSED OR IMPLIED, WRITTEN OR ORAL, ARISING BY
STATUTE, OPERATION OF LAW, COURSE OF DEALING, USAGE OF TRADE OR OTHERWISE,
REGARDING THEM OR ANY OTHER PRODUCT, SERVICE OR MATERIAL PROVIDED HEREUNDER OR
IN CONNECTION HEREWITH.
SYSTEMS & SOFTWARE, ITS LICENSORS AND SUPPLIERS DISCLAIM ANY IMPLIED WARRANTIES OR
CONDITIONS REGARDING THE SOFTWARE, THE HOSTING SERVICES, THE PROFESSIONAL
SERVICES AND ANY OTHER PRODUCTS, SERVICES AND MATERIALS PROVIDED HEREUNDER OR IN
CONNECTION HEREWITH, INCLUDING, BUT NOT LIMITED TO, WARRANTIES OF MERCHANTABLE
QUALITY, MERCHANTABILITY, DURABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE OR NON -
INFRINGEMENT.
SYSTEMS & SOFTWARE DOES NOT REPRESENT OR WARRANT THAT THE HOSTING SERVICES OR
THE SOFTWARE SHALL OPERATE ERROR FREE OR UNINTERRUPTED, SHALL MEET ANY OR ALL OF
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CITY'S PARTICULAR REQUIREMENTS, THAT ALL ERRORS OR DEFECTS IN THE HOSTING SERVICES
OR SOFTWARE CAN BE FOUND OR CORRECTED.
WITHOUT LIMITING THE FOREGOING, SYSTEMS & SOFTWARE DOES NOT MAKE ANY
REPRESENTATIONS OR WARRANTIES WHATSOEVER WITH REGARD TO PRODUCTS OR SERVICES
FROM THIRD PARTIES (INCLUDING WITHOUT LIMITATION THE THIRD PARTY COMPONENTS, THE
HARDWARE, THE OPERATION OF THE INTERNET, NETWORK OR OTHER COMMUNICATION
SERVICES) AND ASSUME NO RESPONSIBILITY OR LIABILITY WITH RESPECT TO THE FOREGOING
OR THE APPROPRIATENESS OF YOUR DATA MANAGEMENT SYSTEM OR THE ACCURACY OF DATA
CONTAINED IN SUCH SYSTEM.
NO AGREEMENTS VARYING OR EXTENDING ANY EXPRESS WARRANTIES SET FORTH IN THIS
AGREEMENT SHALL BE BINDING ON EITHER PARTY UNLESS IN WRITING AND SIGNED BY AN
AUTHORIZED SIGNING OFFICER OF SYSTEMS & SOFTWARE.
9. Limitations on Liability
TO THE GREATEST EXTENT PERMITTED BY APPLICABLE LAW, CITY AGREES THAT THE ENTIRE
LIABILITY OF SYSTEMS & SOFTWARE AND CITY'S EXCLUSIVE REMEDY WITH RESPECT TO THE
HOSTING SERVICES, THE PROFESSIONAL SERVICES AND ANY OTHER PRODUCTS, MATERIALS OR
SERVICES SUPPLIED BY SYSTEMS & SOFTWARE IN CONNECTION WITH THIS AGREEMENT FOR
DAMAGES FOR ANY CAUSE AND REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT
OR IN TORT, INCLUDING FUNDAMENTAL BREACH OR NEGLIGENCE, SHALL BE LIMITED TO ACTUAL
DIRECT DAMAGES AND SHALL NOT EXCEED IN THE AGGREGATE THE ANNUAL HOSTING FEES PAID
BY CITY TO SYSTEMS & SOFTWARE
UNDER THIS AGREEMENT DURING THE THEN -CURRENT TERM (AND IN NO EVENT BEING GREATER
THAN 12 MONTHS) OF THE AGREEMENT UP TO AND INCLUDING THE DATE OF TERMINATION.
PURCHASER FURTHER AGREES THAT IN NO EVENT SHALL SYSTEMS & SOFTWARE BE LIABLE,
REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT OR IN TORT, INCLUDING
FUNDAMENTAL BREACH OR NEGLIGENCE, FOR ANY INDIRECT, PUNITIVE, CONSEQUENTIAL,
INCIDENTAL, SPECIAL, OR EXEMPLARY DAMAGES WHATSOEVER, INCLUDING WITHOUT LIMITATION
FOR LOST PROFITS, LOSS OF REVENUE, FAILURE TO REALIZE ANTICIPATED SAVINGS, LOST OR
DAMAGED DATA, LOSS OF GOODWILL, BUSINESS OPPORTUNITIES OR REPUTATION, OR ECONOMIC
LOSS, ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT, EVEN IF IT HAS BEEN ADVISED
OF THE POSSIBILITY OF SUCH POTENTIAL LOSS OR DAMAGES, OR SUCH LOSSES OR DAMAGES ARE
FORESEEABLE.
10. Change Order Process
With respect to any proposed changes to the Professional Services defined by this Agreement, the parties will
cooperate in good faith to execute Change Orders in respect thereof, and will not unreasonably withhold approval
of such proposed changes. If either party causes or requests a change in the allocation of the resources of
Systems & Software applied to a task, changes in completion schedules for individual tasks or for overall
implementation, and changes in staffing that require Systems & Software to provide additional work hours,
Systems & Software 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 Professional 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.
11. Cancellations and Termination
This Agreement may be terminated as follows:
a. If either party is in material breach of any of its obligations or any provision under this Agreement, the other
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party must notify the breaching party in writing of such default (a "Default Notice"). Upon receipt of a
Default Notice, the breaching party must correct the default at no additional cost to the other party within
ninety (90) days, or issue a written notice of its own disputing the alleged default within thirty (30) days, of
the date of receipt of a Default Notice. If the breaching party fails to correct the default within such ninety
(90) day period, and did not issue a notice disputing the alleged default within such thirty (30) day period,
the other party may terminate this Agreement upon written notice to the other party to that effect
b. If City has failed to pay any amounts when due under this Agreement, Systems & Software shall have the
right to (i) suspend performance of the Hosting Services (including City access to the Hosting Services)
until all amounts are paid in full; and/or (ii) terminate this Agreement effective immediately upon written
notice to City to that effect.
c. Systems & Software may terminate this Agreement effective immediately upon written notice to City if City
has breached its obligations of confidentiality or any intellectual property right or proprietary right of Systems
& Software.
d. Either party may terminate this Agreement effective immediately upon written notice to the other party if the
other party: (i) becomes insolvent; (ii) becomes the subject of any proceeding under any bankruptcy,
insolvency or liquidation law, whether domestic or foreign, and whether voluntary or involuntary, which is
not resolved favorably to the subject party within ninety (90) days of commencement thereof; or (iii)
becomes subject to property seizure under court order, court injunction or other court order which has a
material adverse effect on its ability to perform hereunder.
e. This Agreement shall automatically terminate in the event that the Information Systems Agreement is
terminated.
12. Effects of Termination
In the event of termination or expiration of this Agreement:
(a) All rights granted to City in this Agreement shall immediately terminate and Systems & Software will
immediately cease to perform the Hosting Services.
(b) City will pay all amounts due under this Agreement up to and through the date of termination and all costs
reasonably incurred in collecting the amounts due to Systems & Software (including court costs, attorney fees,
and repossession charges to the extent not prohibited by law).
(c) City shall return to Systems & Software or at Systems & Software's option purge or destroy all copies of any
Confidential Information of Systems & Software in its possession or under its control (except as required under
any statute or legislation related to retention requirements), and provide a duly authorized certificate of an
officer of City confirming same within thirty (30) days.
(d) Except as otherwise provided in this Agreement, 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.
(e) Any cancellation and/or termination of this Agreement prior to the end of the Initial Term shall result in the
following: an acceleration of all Annual Hosting Fees due for each year of the Initial Term not already invoiced
and/or paid, which amount will be due immediately. This section will not affect Systems & Software's right to
collect any further invoiced amounts for other Professional Service Fees.
(f) Conditional upon City's payment of all Fees that are due to Systems & Software, Systems & Software will
furnish the City with a copy of the Data in a format to be mutually agreed upon between the parties in writing.
The anticipated services to provide a copy of the Data are one to two weeks and will be billed at Systems &
Software's then current daily rate. Upon receipt of notice from City confirming receipt of the Data, Systems &
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Software shall destroy all copies of the Data and delete all Data on the database and an Officer of Systems &
Software shall certify the destruction and deletion to the City. Subject to any legal requirement that Systems
& Software must retain a copy of the Data, Systems & Software shall not delete the Data for 90 days from the
date of termination except: (i) where Systems & Software has provided the Data to City pursuant to this
Subsection; or (ii) where it has received written instructions from City to delete the Data. Following 90 days
from the date of termination if City has not communicated with Systems & Software regarding the Data,
Systems & Software shall have the right to delete all Data at any time as either required by law or as determined
by Systems & Software in its sole discretion. Systems & Software shall not be required to adhere to the time
frames detailed above where Systems & Software is required by law to delete such Data.
13. Ownership
(a) By Systems & Software. City acknowledges that at all times Systems & Software, its service providers or
licensors are and shall remain the owner of all hardware, servers, equipment, networks or other software
Systems & Software uses in the performance of the Hosting Services. Systems & Software, its service
providers and licensors are and shall at all times remain the owner of all copyright, trademarks, trade secrets,
patents and any other intellectual property rights in and to the Hosting Services and Software and related
documentation, materials, logos, names and other support materials provided pursuant to the terms of this
Agreement. City shall acquire no right whatsoever to all or any part of the Software except the limited right to
access and use the Software in accordance with the terms of this Agreement and the Information Systems
Agreement and Systems & Software and its licensors reserve all rights not expressly granted to City. City
must fully reproduce any copyright or other notice marked on any part of the documentation or other materials
on all authorized copies and must not alter or remove any such copyright or other notice. City hereby grants
to Systems & Software a royalty -free, worldwide, irrevocable, perpetual license to use and incorporate in to
the Hosting Services any suggestions, ideas, enhancement requests, recommendations or other feedback
provided by City relating to the operation of the Hosting Services or the Software.
(b) City Data. As between Systems & Software and City, all Data will remain the sole and exclusive property of
City. City is solely responsible for ensuring the accuracy, quality, integrity, reliability, appropriateness and right
to view and use the Data. Subject to the terms and conditions of the Agreement, City grants to Systems &
Software a world-wide, non-exclusive, royalty -free license to access the Data for the purpose of performing
the Hosting Services. Access to the Data shall only be by Systems & Software's employees and/or
subcontractors whose job function requires access. Except as specified in this Agreement, Systems &
Software may not access the Data for any other purpose without the express written consent of City. Access
to Data by any outside party shall only be in accordance with the terms of this Agreement or where required
by law.
City grants to Systems & Software a world-wide, non-exclusive, royalty -free license to aggregate or compile
Data with the City data of other City's using the Hosting Services so long as such aggregation or compilation
omits any data that would enable the identification of City, its clients or any individual, company or City
("Aggregated Data"). Systems & Software shall have a worldwide, perpetual, royalty -free license to use,
modify, distribute and create derivative works based on such Aggregated Data, including all reports, statistics
or analyses created or derived therefrom. Additionally, City grants Systems & Software the right to access
Data to provide feedback to City concerning its use of the Hosting Services. The intended purpose of aggregate
or compiled Data is to provide enhanced service offerings to City and other customers. Possible examples
include usage heat maps or performance analytics.
(c) Data and Privacy Policy of City
The City represents and warrants to Systems & Software that:
a. Data that is either provided to or acquired by Systems & Software is owned exclusively by City and
that the City has full right and title to provide the Data to Systems & Software;
b. Data that is either provided to or acquired by Systems & Software is subject to a privacy policy in effect
as of the Effective Date and Cities have provided to City their written consent for its collection, use
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and storage by Systems & Software and its third -party service providers in accordance with this
Agreement and in any jurisdiction in North America;
c. City complies with all applicable privacy legislation as of the Effective Date in the performance of its
obligations hereunder in respect of any Data collected, used, transferred, created or disclosed
pursuant to this Agreement; and
d. City will not provide Systems & Software with data of any kind for which Systems & Software either
has no need or does not have the right to collect, use and store under the terms of this Agreement.
14. Confidential Information
The parties agree to keep confidential any and all Confidential Information with respect to the other party which it
has received or may in the future receive in connection with this Agreement and shall only disclose such
Confidential Information of the other party (i) to its agents, employees or representatives who have a need to know
such information, for the purpose of performance under this Agreement and exercising the rights granted under
this Agreement, and who have entered into a non -disclosure agreement at least as protective of the other party's
Confidential Information as this Agreement, or (ii) to the extent required by applicable law or during the course of
or in connection with any litigation, arbitration or other proceeding based upon or in connection with the subject
matter of this Agreement, provided that the receiving party shall give the disclosing party reasonable notice prior
to such disclosure and shall comply with any applicable protective order or equivalent. The parties each agree to
hold the other party's Confidential Information in confidence and to take all reasonable steps, which shall be no
less than those steps it takes to protect its own confidential and proprietary information, to protect the Confidential
Information of the other party.
In addition to any other restrictions on Systems & Software's use of the Data, the confidentiality obligations above
apply except to the extent that both parties agree that the Data may be subject to privacy laws providing for the
owners of the Data to review such Data or to challenge the collection and storage of the Data. City represents
and warrants to Systems & Software that as of the Effective Date no individual, government body or third party
has requested a review of the Data or challenged the collection and storage of the Data to be stored in the Software.
15. Indemnity
City is solely responsible for its Data, its use, and its Users' use, of the Hosting Services in any way, and all legal
liability arising out of or relating thereto. City shall defend, indemnify and hold Systems & Software and its third
party service providers, if applicable, and each of their respective officers, directors, employees and agents (the
"Indemnities") harmless from and against any and all losses, costs, damages and expenses (including reasonable
attorney's fees) that the Indemnities may suffer in connection with any demands, claims, actions, suits or
proceedings arising out of or in connection with (i) the use of the Hosting Services including but not limited to any
Third Party Components by City or its Users; (ii) any breach by City or its Users of this Agreement; or (iii) City's
Data, including but not limited to any third party claims that the inclusion, use, reference, incorporation of or linking
to any third party materials or the City's Data violates such third party's copyright and/or other intellectual property,
privacy or other rights, or that such use is illegal.
16. General
(a) Governing Law; Venue: This Agreement shall be governed by and construed in accordance with the laws of
the Indiana] and the federal laws of the United States applicable therein. This Agreement expressly excludes
that body of law applicable to choice of law, the Uniform Commercial Code and the United Nations Convention
on Contracts for the International Sale of Goods and any legislation implementing such Convention, if
otherwise applicable. City and Systems & Software hereby waive, to the fullest extent permitted by applicable
law, the right to trial by jury in any action, proceeding or counterclaim filed by any party, whether in contract,
tort or otherwise, relating directly or indirectly to this Agreement or any acts or omissions of Systems &
Software in connection therewith or contemplated thereby.
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(b) Mediation: Except where this Agreement explicitly states that this Section does not apply, the parties agree
to submit any claim, controversy or dispute arising out of or relating to this Agreement or the relationship
created by this Agreement to non -binding mediation before bringing a claim, controversy or dispute in a court
or before any other tribunal. The mediation is to be conducted by either an individual mediator or a mediator
appointed by mediation services mutually agreeable to the parties. Such mediator shall be knowledgeable
in software system agreements. The mediation shall take place at a time and location which is also mutually
agreeable; provided; however, in no event shall the mediation occur later than ninety (90) days after either
party notified the other of its desire to have a dispute be placed before a mediator. The costs and expenses
of mediation, including compensation and expenses of the mediator (and except for the attorneys' fees
incurred by either party), is to be shared by the parties equally. If the parties are unable to resolve the claim,
controversy or dispute within ninety (90) days after the date either party provides the other notice of mediation,
then either party may bring and initiate a legal proceeding to resolve the claim, controversy or dispute unless
the time period is extended by a written agreement of the parties. Nothing in this Section shall inhibit a party's
right to seek injunctive relief at any time.
(c) Notice
Any notice required or permitted to be given to any party to this Agreement shall be given in writing and shall
be delivered either 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 the Consultant,
to:
SYSTEMS & SOFTWARE, INC.
10 East Allen Street, Suite 201
Winooski, VT 05404
Attention: Kyle Rainey
Telephone: 612-670-6191
and in the case of the City, to:
City of South Bend, Utility Billing Office
209 N Main Street, Suite #207
South Bend, IN 46601
Attention: Director of Utilities
Each party may change its particulars respecting notice, by issuing notice to the other party in the manner
described in this Section 16(c).
(d) Currency: Unless otherwise indicated, all dollar amounts referred in this Agreement are in lawful money of
United States.
(e) Entire Agreement: This Agreement together with the Schedules attached to this Agreement constitute the
entire agreement between the parties with respect to the subject matter hereof and supersedes all prior and
contemporaneous agreements, representations, negotiations, understandings, arrangements, and
communications between the parties, both written and oral, relating to the subject matter hereof. No terms
and conditions in any City orders, or in any other documentation employed by or on behalf of City in
connection with this Agreement, regardless of the date of such documentation, will affect the terms of this
Agreement, even if such document is accepted by the receiving party, with such provisions being deemed
deleted. This Agreement may only be modified by a written amendment signed by an authorized
representative of each of the parties.
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(f) Waiver. No waiver of any breach of any provision of this Agreement shall constitute a waiver of any prior,
concurrent, or subsequent breach of the same or any other provisions hereof, and no waiver shall be effective
unless made in writing and signed by an authorized representative of the waiving party.
(g) Assignment: City may not assign any of its rights or duties under this Agreement without the prior written
consent of Systems & Software, such consent not to be unreasonably withheld. This Agreement shall inure
to the benefit of and be binding upon the parties to this Agreement and their respective successors and
permitted assigns.
(h) Severability: If any provision of this Agreement is determined by a court of competent jurisdiction to be
invalid or unenforceable under any applicable law, then such provision shall be deemed modified to the extent
necessary in order to render such provision valid and enforceable. If such provision may not be so saved, it
shall be severed and the remainder of this Agreement shall remain in full force and effect.
(1) Allocation of Risk: City acknowledges and agrees that the warranty disclaimer and limitation of liability
contained in this Agreement are fundamental elements of the basis of the bargain between Systems &
Software and City and set forth an allocation of risk reflected in the fees and payments due hereunder.
(j) Relationship: The parties are and shall at all times remain independent contractors in the performance of
this Agreement and nothing herein shall be deemed to create a joint venture, partnership or agency
relationship between the parties. Neither party will have the power to bind the other party or to contract in
the name of or create any liability against the other party in any way for any purpose. Neither party will be
responsible for the acts or defaults of the other party or of those for whom the other party is law responsible.
(k) Equitable Relief: City acknowledges and agrees that it would be difficult to compute the monetary loss to
Systems & Software arising from a breach or threatened breach of this Agreement by City and that,
accordingly, Systems & Software will be entitled to specific performance, injunctive or other equitable relief
in addition to or instead of monetary damages in the event of a breach or threatened breach of this Agreement
by City.
(1) Force Majeure: No default, delay or failure to perform on the part of Systems & Software shall be considered
a breach of this Agreement where such default, delay or failure is due to a force majeure or to circumstances
beyond its control. Such circumstances will include, without limitation, strikes, riots, civil disturbances, actions
or inactions concerning government authorities, epidemics, war, terrorist acts, embargoes, severe weather,
fire, earthquakes, acts of God or the public enemy or default of a common carrier, unavailability of Third Party
Components or other disasters or events.
(m) Survival: Sections 1 (Definitions), 3 (Fees), 5 (Restrictions on Use), 7(f) (Compliance with Laws), 7(g)
(Security), 8 (Warranty Disclaimer), 9 (Limitation of Liability), 12 (Effects of Termination), 13 (Ownership), 14
(Confidential Information), 15 (Indemnity), 16 (General) and any other provision of this Agreement which is
required to ensure that the parties fully exercise their rights and their obligations hereunder shall survive any
termination or expiration of this Agreement unless and until waived expressly in writing by the party to whom
they are the benefit.
(n) Counterparts: This Agreement may be executed in counterparts (whether by facsimile signature, PDF via
email, or otherwise), each of which when so executed shall constitute an original and all of which together
shall constitute one and the same instrument.
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IN WITNESS WHEREOF, Systems & Software and the City have duly executed this Agreement to be effective
on the Effective Date first written above.
City of South Bend
Board of Public Works
Date:
Gary Cilot, Pre ide t
Therese Dorau, M tuber
Suzanna Fritzberg, ember
I�lizabe Marad k, Member
James Mueller, Member
,NEST:
Linda Martin, Clerk
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Systems & Software, Inc.
Date:
Signature:
Printed Name:
Title:
PROPOSAL FORM E
PRICE FORMS
(To be submitted in a sealed envelope separate from proposal documents and marked
with Vendor's name and "Price Forms")
REQUEST FOR PROPOSALS:
CONSULTANT'S NAME AND
ADDRESS:
NAME/TELEPHONE NO. OF
AUTHORIZED
REPRESENTATIVE:
Lltilit , Billing S item
Vendor will be compensated by either:
Systems & Software
426 Industrial Ave. Ste 140
Williston VT 05495
Kyle Rainey
612-670-6191
1) Lump Sum Price related to the verifiable completion of agreed upon project milestones. Project
milestones will be determined during contract negotiation and shall be accompanied by defined
acceptance criteria. Lump Sum Prices shall be inclusive of all time, materials, and expenses and
shall be paid to vendor after receipt and approval of an invoice itemizing the milestone number
and amount due.
2) Unit Price for applicable hardware, software, or other approved project costs. The vendor will be
compensated for the number of units delivered at the agreed upon Unit Price.
Vendor to complete Price Form E.1 — Price Proposal. If an item is marked as Lump Sum, vendor will
provide total price for that item. If the item is marked as Unit Price, vendor will provide the unit price,
and will calculate the total price based on the quoted unit price and the quantity indicated by the City on
the price form.
If the vendor makes any mathematical errors on its Price Form E.1 — Price Proposal, the City will correct
those errors as follows: the Unit Price stated on the fee table by the vendor shall be accepted as being
correct; the actual sum and extension based upon the unit price and quantity shall then govern; and the
unofficial total shall be revised accordingly. The City also reserves the right to correct any mathematical
errors in the summation of the extensions, and to correct any errors made in transferring (recopying) the
figures.
Vendor shall provide a listing of labor classifications and hourly rates in effect for approved project change
orders in Price Form E.2 - Project Labor Rates. The rates and classifications will be in effect for the
duration of the implementation project through final system acceptance. The labor rates should be
inclusive of all project expenses. These rates will only be used to develop the costs associated with
approved project change orders.
Utility Billing System Proposal Form E - Page 1 of 6
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PRICE FORM E.2
PROJECT LABOR RATES
Are there any other additional or incidental costs which will be required by your firm in order to
the requirements of the System Requirements?
Yes X No
If you answered "Yes", please provide detail of said additional costs:
II Have you included in vour proposal all reauested informational items and forms? I
X Yes No
If you answered "No", please explain:
Utility Billing System Proposal Form E - Page 8 of 9
Please list
used in developing this
• All DB and OS licensing to be procured by the City.
• Implementation costs remain the same for on -premise vs. cloud/hosted.
• Hosting/Cloud refers to the hosting and management of your hardware and infrastructure needs in our state-of-
the-art, purpose-built datacenters. S&S will manage the hardware as detailed int eh SLA that accompanies the
contract. Depending on the level of Cloud services required, some additional fees may apply
• Travel is included in the pricing. 40 Trips are included at an estimate of $2,500 per trip.
• A trip is one person for one week, and the cost includes hotel, airfare, travel agent fees, car rental, parking, tolls,
mileage and per diem.
• Travel is billed as incurred.
Terms and conditions as set forth in this RFP apply to this proposal.
In signing this proposal, vendor warrants that all certifications and documents requested herein
are attached and properly completed and signed.
REMOVED PER ADDENDUM 1
a WT.4i ii 11111104 dl g , 1 fil I a � . wq
AUTHORIZED SIGNATURE:
PRINT SIGNER'S NAME AND TITLE: Cameron Mahbubian
Executive Vice President and General Manager
DATE SIGNED:
COMPANY NAME & ADDRESS: Systems & Software, Inc.
426 Industrial Ave. Ste 140
Williston, VT 05495
PHONE: 802-865-1170 FAX: 802-865-1171
Utility Billing System Proposal Form E - Page 9 of 9