HomeMy Public PortalAboutAgreement_2019-03-27_Progressive Solutions, Software MaintenanceProgressive Solutions Inc.
P O BOX 783
BREA, CA 92822
1. ORDER FORM — Invoice #19-3483
Invoice Details
Create Date: 3/27/2019
Expire Date: 6/30/2019
Account Information
Account Name: City of Temple City
Contact Name: Susan Paragas
Phone:
626/285-2171 x 2314
Name
PaymentCentral
Hardware Maintenance (1 each Drawer; Printer & credit card reader)
Sales Tax
TOTAL
PPROGRESSIVE SOLUTIONS
www.progressivesolutions.com
Prepared By: Shawn Cobarrubias
Phone: 714/671-1597
IT: Ms. Susan Paragas
Billing Address: 9701 Las Tunas Drive
Temple City CA 91780
Email: sparagas@templecity.us
Designated Caller
Susan Paragas
Sandra Scott
Maintenance Fee
$4,284.96
$337.58
$32.07
$4,654.61
Page 1 of 6
Progressive Solutions Inc.
P O BOX 783 PROGRESSIVE SOLUTIONS
BREA, CA 92822 1A www.progressivesolutions.com
USAGE RIGHTS
Upon timely
payment of the above total
due, Customer shall be licensed to
use the above identified Progressive
Solutions Inc.
software/modules for the
License Term and number of Users
as defined in this Order.
LICENSE TERM
License Start Date:
7/1/2019
License End Date:
6/30/2020
*Customer's License
Start Date will commence
no earlier than the signature date of
this Order
TERMS OF USE
See Software Maintenance Agreement below
PAYMENT TERMS
Payment Annually
Frequency
CITY OF TEMPLE CITY
Signature
Q( Dir\ ecok
Name
PROGRESSIVE SOLUTIONS INC.
Signature
STEVE t.a:VAN
Name
Payment Terms The Above Total Is Due Prior to
License Expiration To Avoid
Cessation of Software/Services
and a 25% Reinstatement Fee
Title
Date
Mand�u-
Title
*Please Note - To avoid late
penalties and to ensure continuation
of service, receipt of a signed agreement prior to
expiration entitles you to a 30 -day payment
grace period without
penalty. Please SIGN &RETURN attached Software
Maintenance Agreement or
remit payment,
by 6/30/2019
Page 2 of 6
PROGRESSIVE SOLUTIONS
www. progressi vesol utions. com
P O Box 783
Brea, California 92822-0783
(714)671-1597 Voice
(866)936-0963 Fax
Ms. Susan Paragas, Administrative Services Director
City of Temple City
9701 Las Tunas Dr
Temple City, CA 91780
June 27, 2019
Dear Ms. Paragas,
Thank you for your continued interest in Progressive Solutions° and for giving us
the opportunity to serve you. Our staff will constantly strive to earn your
continued confidence.
Enclosed is the signature page of the Software Maintenance Agreement. If we
may be of any additional assistance or may answer any questions, please feel
free to contact us at (714)671-1597.
Sincerely,
(�i4VAU .i�%:A,
Shawn Cobarrubias
Enclosures
lnnnvntive Snffwnre — Tnilnred fo Fit - Onlstnnding Service
PROGRESSIVE SOLUTIONS INC.
I. NATURE AND DURATION OF SUPPORT,
Progressive Solutions Inc., a California corporation herein after referred to as "Licensor'
is in the business of providing software maintenance services (herein after referred to as
'Software Maintenance°). Software Maintenance is intended to facilitate smooth &
efficient ongoing operations of the Licensed software. Licensee as idenfified above as
'Account Name' desires to obtain Software Maintenance for the.specifed Licensed
software. This Agreement provides for remote services to be performed in Orange
County, California, only during normal business hours (6.,30am PST to 5pm PST).
Maintenance services shall staff and end on the dates specified above in the section
titled LICENSE TERM. Services shall expire at 5:00 PM Pacific Standard Time on the
end date specified above unless renewed (WHETHER AUTOMATIC OR MANUAL) as
set forth below. Support outside of normal business hours is available for purchase.
Requests for service for which the intended result is of negligible operational benefit are
not available free of additional charge under this Software Maintenance Agreement.
(i.e. Changing the name of a non -Licensor hosted server absent a hardware upgrade
which consequently results in the need to refnstalWedfy the SQL data base software,
the operating system, the Licensed software and to update every Licensee machine that
runs the Licensed software.) Licensees that purchase after hours support will be
provided with the appropriate contact information. Licensor reserves the right to prorate
the software maintenance fee and provide more or less than one year of coverage so
that subsequent Software Maintenance Agreements expire on June 30u. UNLESS
WRITTEN NOTICE OF TERMINATION HAS BEEN PROVIDED BY LICENSEE TO
LICENSOR NO LATER THAN 60 DAYS PRIOR TO EXPIRATION OF THIS
SOFTWARE MAINTENANCE AGREEMENT, THIS AGREEMENT SHALL
AUTOMATICALLY RENEW THEREAFTER FOR A PERIOD OF TIME EQUAL TO
THE DURATION OF THIS AGREEMENT AT THE SPECIFIED MAINTENANCE
RATES IN EFFECT AT THAT TIME FOR THE RENEWAL PERIOD, NO OTHER
TERMINATION OF THE AUTOMATIC RENEWAL PROVISION IS AVAILABLE. UPON
EXPIRATION OF THE LICENSED SOFTWARE, SOME OR ALL OPERATIONAL
FEATURES MAY NO LONGER FUNCTION AND NO SUPPORT SHALL BE
AVAILABLE, THE LICENSED SOFTWARE MAY BE REACTIVATED WITHIN 30
DAYS BY PAYMENT OF THE OUTSTANDING SOFTWARE MAINTENANCE
INVOICE PLUS A 25% REINSTATEMENT FEE,
II. LICENSEE'S RIGHTS, OBLIGATIONS 8 REPRESENTATIONS
a) Training for users, managers and other personnel is essential for efficient
operation of the Licensed software. Licensee shall designate one employee as a
primary contact for each Licensed software application. The designee must have been
trained to use the Licensed software, must regularly use the system(s) and be primarily
responsible for daily results/operation of the system(s). While designee may assign
follow-up on a request for service to another staff member, designee must initiate
contact with Licensors support personnel and relate their questions or issues. Designee
shall ceordinate and/or lesWerify all configurations including but not limited to: general
ledger accounts, rates, rate types billing & charge groups. In addition, designee shall
coordinate availability of necessary IT staff for software updates and installation (when
required by your local policy). Licensor understands that staff turnover is inevitable.
Should a change to the designee be required, a proposed designee shall meet at least
one of these requirements 1) be well trained by the previous trained designee (passage
of test on software functionality may be requited) 2) have scheduled/received onsite or
remote training from Licensor at current rales or 3) agreed to regularly attend Licensors
annual user conference (only if conference is scheduled to occur within 3 months of the
proposed designee change as training is crucial to smooth operations). Once at least
one of the above conditions has been met, please contact Licensor to obtain the
designee change form for subsequent submittal to Licensor. Such training is neither
available nor appropriate via customer support lines. Licensee acknowledges that
updates/version releases/patches made available to Licensee from time to time are an
integral part of the overall performance and value of the Licensed commercial configured
software. For local implementations, Licensee shall make a good faith effort to 1) install
all software updates/version releases/ operating system patches in a test environment
for thorough evaluation and testing prior to deployment in a production environment.
And 2) install the tested upgradesNersion releases/ operating system patches promptly
after completion of testing occurring no later than nine (9) months from the date such
updates are made available by Licensor. if the corrective nature of software upgrades
are not promptly reviewed and/or the software upgrade installed shortly after notification
of availability from Licensor, Licensor staff shall NOT provide further support (i.e.
workarounds) relating to any issues where Licensor has offered Licensee a
recommended resolution that requires implementation of a software update. Further as
software versions older than one year are more expensive to support, when appropriate
an obsolescence surcharge may be added to the next support invoice.
b) Software corrections are defined as: Licensor software updates as well as
specified operating system patches. Licensee agrees to implement software corrections
that have been identified as necessary by Licensor and to ensure that the requirements
identified in Exhibit 8: (Requirements) are met by all machines intended to execute the
Licensed software. Licensee understands that software corrections are typically
implemented via new software releases. Failure to implement those identified software
SOFTWARE
MAINTENANCE AGREEMENT
corrections or to maintain the specified requirements shall relieve Licensor from any and
all Software Maintenance responsibilities relating to any Licensee reported issue(s) that
Ue Licensor conection(s) was/were offered to address for local non -hosted
implementations. In the event Licensee fails to implement idenfified software
corrections, any subsequent services relating to the Licensee reported issue(s) will only
be provided on an emergency fime and materials basis. Unlike the business models of
other providers where products become obsolete, Licensor continually improves the
software and offers to schedule at least one complimentary software version upgrade
each year as a component of annual software maintenance. It is highly recommended
Thal Licensee staff regularly attend Licensor's annual user traininglconferences so staff
may learn of, receive training on and take full advantage of accumulated new features
and functionality. It is vital that at least one Licensee staff member for each Licensed
product attend Licensors user conference at least every 5 years. Licensee
representatives who insist on obtaining training via telephone support may result in
Licensor passing on such training costs along via an additional increase in the Software
Maintenance Agreement.
c) To the extent permitted by any pertinent transparency legislation (such as a
federal, state or local Public Records Act), Licensee will preserve the confidential nature
of the Licensed software and related media and will not make copies, including partial
copies or updated versions thereof, except for internal reference, archive or backup
purposes. For local implementations, Licensee is solely responsible for the backup of its
data and agrees to consdentiously ensure the existence of functional daily backups for
at least the last 10 business days and shall not remove or disable any SQL agent or
backup plan initiated by Licensor without both notification to Licensor and at least
monthly testing of any subsequently implemented alternate backup plan. If the backup
plan is altered or disabled without notification to Licensor, and there is a resulting data
lass, an additional charge may be incurred for requested data recovery services.
d) Licensee agrees to provide Licensor with access to the licensed software and data
for the sole purpose of providing technical support. As a result, Licensee agrees to (1)
maintain a working connection to the internet, (2) permit access through any
router/firewall or permit a Virtual Private Network -VPN connection to Licensee's network
and (3) allow access to a technical support requeslors workstation via Licensors
workstation via Licensor's licensed TeamViewer'" plugin or provide an equivalent
alternative at Licensee's expense. In addition, Licensee agrees that all designated
workstations shall meet at least the minimum requirements as specified in Exhibit 8:
(Requirements and Project Implementation Matrix) at the time of the initial
implementation in order to accommodate the software version initially installed.
Licensee for local implementations further agrees to have completed installation of the
licensed software, the Microsoft° SQL tools and other mutually agreed requirements
such as: Microsofta Terminal Services, Citrix or other similar functionality. In the event
Licensor deems such remote access necessary, Licensor shall request confirmation that
required access (one of the options listed above) is available. Upon receipt of such
confirmation, Licensor shall attempt remote access. If remote access is not functional
despite Licensee's confirmation of functional remote access, Licensor shall provide
remote access verification services free of charge for one time during each annual
agreement. Should Licensee require remote access verification services in excess of
the one free service, Licensor will request approval to invoice for such services at the
rate in effect at the time of service prior to providing such remote access verification. In
the event remote access is not and will not be available in the course of Licensors
attempt(s) to provide Software Maintenance, Licensee understands that Licensors
ability to provide support will be severely limited and an additional service surcharge
may be applied to the Software Maintenance Agreement to amount for the additional
costs incurred to provide such additional support. Should Licensee desire emergency
support, on-site support services are available at Licensor's current support rate plus
expenses for each partial or full day required to provide Software Maintenance.
e) To minimize Licensee costs, to eliminate any requirement for manual update of
validation and/or zip plus four (4) codes, to allow for other on line validations (such as
contractors license, sales tax permit, pet microchip owner information retrieval, etc.) and
to maximize uptime of zip plus four (4) & Licensed software validations, the Licensed
software should optimally be configured for secure internet aceess to the Licensor
designated internet address. Consequently users of the Licensed software that is locally
implemented may periodically obtain the latest zip plus four (4) data and validation
codes. Absent this configuration, to obtain automated zip plus four (4) functionality, for
locaI implementations, Licensee must purchase a zip plus four (4) data subscription from
Licensor and designate staff to install such zip plus four (4) updates every two (2)
months. Failure to promptly update zip plus four (4) data for [oral implementations will
cause disruption of the zip plus four (4) functionality. Furthermore absent internet
access or maintenance of a current data subscription from licensor, the automated
validations provided at the time of installation shall cease and all such validations will
need to be performed manually.
Network Performance: Licensee understands and acknowledges that network
rm
perfoance is solely the responsibility of Licensee. Should any questions arise as to
whether a performance issue is software or network related, Licensee agrees to direct
staff, a Licensee retained consultant or Licensor (at Licensee's cost) to evaluate
AGSOFTMT(4.1) Page 3 of 6
PROGRESSIVE SOLUTIONS INC.
network/software performance. Such network evaluafon shall utilize °Network Sniffer"
or equivalent tools to facilitate generation of quantitative results. Licensee agrees to
request & incorporate Licensor's recommendations in the network evaluafon work plan.
Licensee further agrees to transmit the results of such work to Licensor for review and
to withhold publication of such results until after implementation of all Licensor
recommendations. Requests of Licensor for performance troubleshooting (such as
speed and network connection issues) in which Licensor receives prior written
authorization to collect factual data and subsequently presents a determination that
performance issue(s) is/are network related will be billed at the rates in effect at the time
of service.
g) Licensee assumes any and all responsibility and liability for 1) any modification to
the Licensed software and/or database structure not made by Licensor (i,e. changes to
Crystal reports, additions or deletions of data base tables, fields, etc.) and 2) any
modification to the Licensee's data which is not made by Licensor or the Licensed
software. If, after providing corrective maintenance, Licensor determines that an error
condition is not a Licensed software error or that the error condition results from either
condition 1 or 2 above, Licensee agrees to pay Licensor for the reasonable services so
provided at the rates in effect at the time of service plus reasonable expenses.
h) Call Monitoring: Licensee may monitor and record any calls between Licensee
(including designated Sub -Agencies) and Licensor.
1) PCI Compliance: While Licensor's payment processing solutions are designed to
CISP (Cardholder Information Security Program) & PCI (Payment Card Industry Data
Security Standard) guidelines, Licensee understands that Licensor's PC'/PADSS
compliance and certification does not automatically result in Licensee compliance.
Licensee acknowledges that to maintain CISP/PCI compliance, Licensee must provide
staff with PCI security training and ensure that staff actions maintain compliance.
Licensee understands that local PCI compliance is not possible without Licensee's
internal staff effort to achieve such compliance. Licensee accepts their critical role in
maintaining compliance as required by Visa, MasterCard, etc. Licensor accepts
responsibility for facilitating such compliance by neither encouraging the storage of credit
card data via non -secured methods nor configuring the system for the express purpose
of retaining such information. It is Licensee's responsibility to assure that all other 3rd
party padners/vendom as well as their own internal operations staff facilitate compliance
in their specific areas of process control.
j) Software License Expiration: Upon expiration of the software license pursuant to
Section It of this agreement, Licensee shall discontinue use of Licensors
database/structure, software & related electronic forms as described in Section V -
Default.
III. LICENSOR'S RIGHTS, OBLIGATIONS &REPRESENTATIONS
a) Support Services: Ouring the term of this Agreement, Licensor shall make
available to Licensee without addifonal charge any updates and/or minor enhancements
to Licensed software, data or data structures, which Licensor releases. In addition,
Licensor shall provide Licensee with unlimited support services (via telephone, facsimile,
remote internet connection, email and/or mail communications) for ongoing problem
resolution to assist the persons) designated by Licensee (or an alternate in the absence
of the designated caller). It may include but is not limited to requests for service
regarding operation (including requests for assistance with workstation accessory
hardware purchased from Licensor), installation, updates, administration & general
technical assistance requested by Licensee's designee(s). The designee(s) shall know
the Licensed software, use the Licensed software and be responsible for the results of
their efforts. Such support also includes "Limited Assistance" with the items listed below,
provided such assistance may be provided in fifteen (15) minutes or less:
1. Training (especially of untrained personnel), assistance with report customization
and searching of data within the Licensed software, and
Assistance to isolate the source of problems and/or to troubleshoot difficulties
resulting from sources other than Licensor's provided products or serv
ices,
such as:
• Vidualizafon and/or Remote Access confguration&setup
• Personal Computer setup, configuration &opfmizafon
• Basic Microsoft Windows'"' functionality
• Personal Computer & hardware troubleshooting
• General network support (i.e. network access, printing, backup & restores)
• Network operating system configuration & functionality
• Data corruption due to lack of disk space or backup failure; and
• Loss of supervisor or other password
But expressly excludes any services or assistance relating to database or 3" party mail
services issues, unless purchased via an addendum to this agreement. °Limited
Assistance" in excess of fifteen (15) minutes per call will be billed at
the rate in effect at
the time of service. Prior to and as a condition of Licensor's night to bill for such "Limited
Assistance", Licensor shall inform Licensee that the free support is over and that any
additional support will. be billable. Licensor reserves the rights to: A) limit the number
SOFTWARE
MAINTENANCE AGREEMENT
and the duration of these communications and B) periodically transmit surveys to
Licensee for evaluation of the software, support and other services.
b) Maintenance Services: Upon receipt of notification from Licensees designated
support representative(s) of an apparent error in any supported release of the Licensed
are, Licensor will use commercially reasonable efforts to promptly investigate the
issue and determine whether or not there is in fact an error and advise Licensee that
either an error does not exist or confirm that one does exist and what if any work -around
exists. Errors will be deemed to be any design or programming error in the Licensed
software which prevents the Licensed software from substantially complying with the
functionality as set out in the user documentation (on-line or hard -copy) delivered with
the Licensed Software and which materially affects the use, function or performance of
the Licensed Software. When errors are confirmed, Licensor will use commercially
reasonable efforts to correct such errors and provide Licensee with a correction or
service pack for the Licensed Software as soon as it is practical in Licensors sole
discretion.
c) Assignment of Priorities for Support Issues: New support incidents are
assigned one of the following four priority levels, each with its respective standard
completion target:
It
Licensee may request a ranking of the call priority when initially reporting th
Description
Standard
drolly
Cam letion
A-
Fatal Issues that result in Licensee's inability to fulfill cancel business
Within 12
System
functions (i.e. these pertaining to core functionality such as billing
hours
_ Down
and recepuml & that have no reasonable workaround.
e -Urgent
Serious Issues signincamiy Impacting use of Licensed software but
Within 24
do not prevent core functions defined above from being fulfilled.
hours
C-
All other Issues, except those classified as D(low)
Within 36
Normal
hours
D - Low
Issues with minimal impact on operations requiring Incommensurate
None
support el/on.. (Work will be performed on a best of/ons basis when
requests with higherprialess do not rake precedence.) Issues such
as proposed elective configuration changes that are by nature not
Ilene-senslUve and may be undertaken as planned Licensee seMce
In htfives outside the scope Of this areement
e incident.
Should there be any disagreement over the priority assigned to a particular inddenl, or
any other aspect of its handling by Licensors support staff, Licensee's designated
representative is encouraged to speak directly to the support representative dealing with
the issue in order to arrive at an acceptable solution. In cases where escalation is
desired or necessary, please contact the Support Services Supervisor with any concerns
you may have.
d) Excluded Services: Without limitation, the following services are excluded from
Software Support:
t Those required to remedy problems that stem from changes to or defects in the
inifally installed/approved system configuration or in subsequent
modified/approved Licensor system confgurafons;
2. Those required to remedy problems which do not stem from any defect in the
Licensed Software
3. Those required to remedy issues resulting from untrained or inadequately trained
Licensee staff.
4. Those required remedying problems caused by:
a. improper use of the software
b. unauthorized modifications to Licensors data structure/confgurafon -
a modifcations to Licensee's data without use of Licensor approved methods
(i.e. application programming ii ferfaces-API),
5. Report rewrites requiring more than 15 minutes afar approval of inifal report
customizafion(s).
6. Any & all hardware support, maintenance or troubleshooting issues, except as
described in Section IV(a) regardless of the source of such hardware.
e). Limited Warranty of Service: Licensor warrants that all maintenance services
provided hereunder will be performed in full conformity with this Software Maintenance
Agreement, with the skill & care which would be exercised by (hose who perform similar
services at the fime the services are performed, and in accordance with accepted
industry procfce. The following actions shall void all maintenance and support
obligations of this Software Maintenance Agreement:
• Use of any non -authorized application or support tool that modifies data in the
database, whether created by Licensee or another party. (Licensor regularly engages
in custom projects to accomplish such objectives and is pleased to do so.)
• Use or creation of any application that competes with or replaces a module available
from Progressive Solutions Inc. to work with either the licensed application or the
licensed application's database
In the event of a breach of the express warranties contained herein and/or in the event
of non-performance and/or failure of Licensor to perform the services in accordance with
AGSOFTMT(4.1) page 4 of 6
PROGRESSIVE SOL UTIONS INC.
the Agreement, Licensor will, at no cost to Licensee, re -perform or perform the services
so that the services conform to the warranties.
Q Nothing contained in this Agreement shall be constmed to obligate Licensor to
provide any services whatsoever subsequent to the expiration of this Agreement or any
SOFTWARE
MAINTENANCE AGREEMENT
subsequent renewals of this Agreement. Upon expiration of this Agreement, Licensee
may offer and Licensee may purchase continued Software Maintenance on a periodic
basiS.
IV. SUPPORT FEES AND PAYMENTS
Payment for 'Software Maintenance' services is due in advance and non-refundable. 'Software Maintenance' services will not be provided until such advance payment has been
received. Licensor agrees to provide at least 90 days prior written notification prior to implementation of any annual fee change. Any annual fee change shall not become effective until
the first day of any annual extension. Maintenance for Revenue Enhancement functionality is excluded from any and all caps.
Should Licensee terminale this agreement at any time after the most recent automatic renewal and cease all use of the Licensed software post expiration of the Licensed software, both
parties agree that any billed and/or unpaid annual maintenance invoice amount submitted to Licensee prior to the automatic renewal shall be immediately due and promptly payable. If
payment is not received by Licensor within 30 days from invoice date or 60 days post expiration of Licensee's right to use the licensed software (whichever is earlier), a late fee of 10
of the invoiced amount shall also be due and payable. If Licensee continues use of the Licensed software for more than 60 days post Licensee's right to use the software without
payment and absent alternate written arrangements, Licensee shall remove the licensed software per the provisions of the Default Section (V) of this agreement.
To encourage Licensees to receive the benefits of the latest Software Maintenance Agreement, Licensor offers a 30 day Software Maintenance payment extension to Licensees that
sign and return the Licensor provided Software Maintenance Agreement renewal without alternations to Licensor prior to expiration of each Software Maintenance term. Unless
Licensor has received a newly signed Software Maintenance Agreement (to extend the payment due date) prior to the software expiration date, a late fee equal to 10% of the delinquent
maintenance balance shall be due for failure to tender payment either by the original expiration date or by the Licensor extended due date obtained by signing the new Maintenance
Agreement. Further any payments not received by Licensor within 30 days from the invoice date, original contractually specified expiration or by any Licensor extended due date shall in
addition to the 10% late fee be subject to a finance charge of .05% per day from the support expiration date up to and including the date payment is received.
V. DEFAULT
(a) In the event Licensor or Licensee fails to exercise due care (defaults) with
regard to its obligations under this Agreement, and has not remedied such default
within 30 days after the dale of written notice by the non -defaulting party, then the
non-defaulfing party shall be entitled to exercise any one or more of these remedies:
1. The non -defaulting party may terminate this Agreement, accelerate all amounts
due and unpaid hereunder such that all amounts will become immediately due
and payable.
2. Suspension of Obligations: The non-defaulfing party may suspend
performance & observance of any or all its obligations under this Agreement,
without liability, until the other party's default is remedied. However, Licensee
may only suspend its obligation to make payments for Software Maintenance
and other Services provided a written 'Notice of Default' has been transmitted to
Licensor prior to the most recent automatic renewal date. At such time as the
noticed default has been remedied, such suspended payment shall be
immediately released to licensor.
3. If Licensee is the defaulting party, Licensor may allow the Licensed software to
expire without demand or nofice, without court order or other process of law,
and without liability to Licensee for any damages occasioned by such expiration
of the Licensed software.
4. The non -defaulting party may pursue any other remedy available at law or in
equity, including injunctive relief. While an attempt at good faith Mediation
participation per Section XI (Q of the 'Software and Services Agreement' is
required in order for either party to collect any costs of litigation, therefore it is
mutually agreed that any 'Notice of Default' transmitted to Licensee shall be
deemed adequate notification of a Licensor claim to protect its private
intellectual property per California Government Code Section 905.1 (or similar
code sections from any state where the software has been installed).
(b) Removal of Licensed Software: For local implementations, upon 30 days from
demand by Licensor made pursuant to the default provisions (Section (VI)) of this
agreement and/or the corresponding Software License Agreement pertaining to local
licensed software implementations, Licensee shall discontinue use of Licensors
database/structure, software & related electronic forms. In addition, Licensee shall
provide Licensor with written confirma9on that: 1) all previously licensed components
have been erased and copies no longer reside on any computer system maintained
or operated by: Licensee, Licensee's staff members, or Licensee authorized 3rd party
vendors 11) all backup tapes which contain a copy of Licensors proprietary property
shall be securely maintained with the same care as other confidential data and
overwritten as part of the normal backup plan after execution of the transmitted
Licensors "Confirmation of Proprietary Rights and Destruction" 111) no attempt shall be
made to restore Licensors proprietary property from backup tapes and IV) no breach
of confidentiality relating to Licensor's intellectual property has occurred. Licensee
agrees to complete and transmit Licensors 'Confirmation of ProprietaryRights and
Destruction' to Licensor within 30 days from expiration of the licensed software unless
an alternative written agreement has been executed. Failure to transmit such
statement prior to the 30 day due date shall result in a $1,000 charge for each
subsequent 7 day period unfit such statement has been provided. Should any
representation provided via a transmitted 'Confirmation of Proprietary Rights and
Destruction' subsequently be found not to be We, the weekly penalty provision shall
apply as if the statement had not been provided until the date subsequent proof has
been tendered which verifies that any misrepresentation (intentional or unintentional)
has been rectified.
VI. GENERAL PROVISIONS
(a) The Licensed software is subject to design and operafional changes to allow for
the use of new technologies and to correct known bugs as they are brought to the
attention of the Licensor, either by the Licensor's own quality -control mechanisms or
by the Licensee.
(b) Licensee acknowledges that the Licensed software is of such complexity that it
may have inherent defects and agrees that as Licensors sole liability for such inherent
defects and as licensee's sole remedy for such inherent defects, Licensor will
provide, during the term of this Agreement, all reasonable software maintenance
services arising from a hosted andlor unaltered locally implemented version of the
delivered Licensed software to correct 1) documented programming or
documentation errors reported by Licensee and 2) failure of the Licensed software to
meaI the specifications identified in the electronic documentation provided with each
release of the software.
(c) Software maintenance is offered by Licensor to ensure that Licensee receives
the quality support necessary to remain a highly satisfied customer. Support is
offered for Licensed software and minor modifications to forms designed and/or
created by Licensor to operate with the released software. Licensor utilizes Seagate's
Crystal Report Writer'" to create most reports and forms. To ensure maximum
flexibility, customers have the option to independently design, create and maintain
additional forms, mailings, and/or reports. Licensors annual software maintenance
does not induce technical support for user written Crystal Reports"or for minor
individual modifications to accepted/cempleted forms that require more than 15
minutes technical support. However, Licensor is pleased to offer such support on a
time expended or fixed fee basis (should complete written specifications be available).
(d) All documentation, programming and/or modifications shall be delivered via
remote telecommunications from Licensors place of business, to or through the
Licensee's computer. Licensor shall not provide Licensee with possession of any
tangible personal property such as storage media. Licensee shall reimburse Licensor
for any state and or local requirements, which Licensor must meet or obtain to provide
services under this Agreement (e.g. business licenses, additional insured statements,
sales lax, etc.).
(e) No action regarding services or deliverables, regardless of form, may be
brought more than one (1) year after the first to occur of either 1) the conclusion of
services and/or delivery of any deliverables arising from this or the Software License
Agreement, or 2) such party's knowledge of the event giving rise to such cause of
action. This limitation does not apply to confidentiality obligations or to software
license rights.
(Q Notices: All nofices and other communications required or permitted to be given
or made pursuant to this Agreement shall be in writing and deemed delivered one (1)
day after being sent by a nationally recognized overnight courier service or three (3)
days after being sent certified U.S. mail, return receipt requested, postage prepaid.
All notices will be given to the designated contact at the address indicated in this
Agreement.
(g) This Agreement and any written modifications, amendments or addenda,
executed pursuant to this Agreement constitute the entire agreement between the
parties and supersede all negotiations and other proposals, oral or written, and all
previous and current negotiations and other communications between the parties
pertaining to the subject matter herein. Any payment related obligations that occur
one year after execution of this agreement shall be construed in accordance with and
governed by Federal or state law where any resulting action is filed. All other
AGSOFTMT(4.1) Page 5 of 6
PROGRESSIVE SOLUTIONS INC.
obligations set forth in this Agreement shall be construed in accordance with and
governed by Federal law or the laws of the slate in which the software is situated,
except when software licenses are granted for use in the state of Louisiana or in
countries such as Canada or Mexico where the laws of California will apply. When
California law applies, the Court of Orange County, California shall have non-
exclusive jurisdiction over all disputes relating to this Agreement. This Agreement will
not be governed by the conflict of law rules of any jurisdiction or the United Nations
Convention on Contracts for the International Sale of Goods, the application of which
is expressly excluded. This Agreement may be signed in several cwunlerparts, each
of which shall be deemed an original.
SOFTWARE
MAINTENANCE AGREEMENT
Any controversy or claim arising out of or relating to this Agreement or the breach
thereof, may be settled by arbitration, if agreeable to both parties at in accordance
with the rales of the American Arbitration Association, and judgment upon the award
rendered by the arbitrator(s) may be entered in any court having jurisdiction thereof.
(h) Any change or revision to the terms and conditions hereof shall be made by
written amendment and shall be executed by persons authorized to do so by the
respective parties. No changes in specifications, requested or suggested by either
party, shall be made except by written agreement of both parties.
Congress enacted the Electronic Signatures in Global and Naflonal Commerce Act
(E -Sign Act) on June 30, 2000, to validate the legality of electronic contracts. Should
either party receive a document signed with a valid electronic signature, such
documents shall be accepted as if they were signed with a pen.
VII. EXECUTION
Both Parties via their signatures below hereby certify 1) they are authorized to sign this agreement and 2) each signer accepts the above terms and conditions on behalf of the above
referenced organization. Licensee via their signature below hereby cedifies that there are no contractual conflicts with respect to any exisfing city charter or similar legislation or that
any conflicts have been identified, fully disclosed to PSI in writing and such written documentation has been attached to/made a part of this agreement; further any
unidentified/unincorporated legislative conflicts shall be deemed waived.
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