CONTRACT 6229 Service AgreementAgreement No. 6229
SERVICES AND EQUIPMENT AGREEMENT
BETWEEN THE CITY OF EL SEGUNDO
AND
SCANTRON CORPORATION
THIS SERVICES AND EQUIPMENT AGREEMENT ("Agreement"), is entered into
this 14th day of October, 2021, by and between CITY OF EL SEGUNDO, a municipal
corporation ("CITY") and SCANTRON CORPORATION, a California Corporation
("CONSULTANT").
1. CONSIDERATION; WARRANTY.
A. As partial consideration, CONSULTANT agrees to furnish the equipment
("Equipment") and perform the related scope of services included in its
proposal attached as Exhibit "A," and incorporated by reference
("SERVICES"). The SERVICES include installing and maintaining a
software program for various tasks associated with SCANTRON
CORPORATION ("SOFTWARE").
B. As additional consideration, CONSULTANT and CITY agree to abide by
the terms and conditions contained in this Agreement.
C. As additional consideration, CITY will pay CONSULTANT the
compensation set forth in Exhibit A, but in no event more than ten
thousand dollars ($10,000).
D. The terms, conditions, and warranties applicable to the Equipment
referenced in Section 1(A), are set forth in Exhibit "B" and incorporated by
reference, and Equipment will include the Scantron IN4ES scanner, as
identified in Exhibit "A."
E. CITY will not be liable for any costs or expenses exceeding the sum paid
to CONSULTANT pursuant to Section 1(C) unless otherwise agreed to by
the Parties and by written amendment to this Agreement.
2. TERM. The term of this Agreement will be for one (1) year. This Agreement will
automatically renew, on an annual basis, on its anniversary date unless otherwise
terminated. Unless otherwise determined by written amendment between the parties,
this Agreement will terminate in the following instances:
A. Completion of the work specified in Exhibit "A";
B. Termination as stated in Section 7,
3. "SELF-HELP" AND "MALICIOUS" CODES PROHIBITED.
Agreement No. 6229
A. CONSULTANT understands and agrees that CONSULTANT's use of any
"self-help" or "malicious" codes, as defined by this Section, is prohibited
and constitutes an "unfair business practice" as defined by California law.
Notwithstanding any other provision of this Agreement that limits
CONSULTANT's liability, CONSULTANT will be fully liable for all penalties
and damages arising from use of a self-help or malicious code.
B. "Self-help code" means any back -door, time -bomb, drop -dead, time-out,
lock -up, slow -down, data freezing, logic bombs, or other software routine,
code, devices, techniques intended to disable, slow, prevent operation of,
or otherwise interfere with or change any operation of any computer
system, software or other property automatically with the passage of time
or under the prior instruction, triggering event or control of someone other
than Client.
C. "Malicious Code" means any virus, "spyware," "Trojan horse," "worm,"
"Easter egg," "cancelbot," "trapdoor," or other unapproved or malicious
software routine, code, command, device, technique, or instruction or
other contaminant intended to
Permit unauthorized access to, detection of, modification of, or
monitoring of any code, system, or data;
Alter, supplement, disable, erase, limit, threaten, infect, assault,
vandalize, defraud, disrupt, damage, disable, shut down or delete,
threaten, slow or otherwise inhibit the functioning of, or otherwise
harm any of the code, documentation or data or any computer
system, software or other property;
iii, Render any data irretrievable, modified, or disrupted so as to be
unreliable in any regard;
iv. Perform any other unauthorized action, or prevent, limit, condition
or inhibit performance of authorized actions or any function
including, without limitation, to its security or end user data.
4. LAWS AND REGULATIONS. CONSULTANT will be responsible for complying
with any and all applicable Federal, State, County, and Municipal laws and regulations
and the conditions of any required licenses and permits before entering into this
Agreement. Such compliance will be at CONSULTANT's sole cost and without any
increase in price or time on account of such compliance, regardless of whether
compliance would require additional labor, equipment, and/or materials not expressly
provided for in the Agreement or CONSULTANT's proposal.
5. INDEMNIFICATION.
Agreement No. 6229
A. CONSULTANT agrees to the following:
Indemnification for Professional Services. CONSULTANT will
save harmless and indemnify and at CITY's request reimburse
defense costs for CITY and all its officers, volunteers,
employees and representatives from and against any and all
suits, actions, or claims, of any character whatever, brought
for, or on account of, any injuries or damages sustained by
any person or property resulting or arising from any negligent
or wrongful act, error or omission by CONSULTANT or any of
CONSULTANT's officers, agents, employees, or
representatives, in the performance of this Agreement, except
for such loss or damage arising from CITY's sole negligence
or willful misconduct.
Indemnification for other Damages. CONSULTANT indemnifies
and holds CITY harmless from and against any claim, action,
damages, costs (including, without limitation, attorney's fees),
injuries, or liability, arising out of this Agreement, or its
performance, except for such loss or damage arising from
CITY's sole negligence or willful misconduct. Should CITY be
named in any suit, or should any claim be brought against it
by suit or otherwise, whether the same be groundless or not,
arising out of this Agreement, or its performance,
CONSULTANT will defend CITY (at CITY's request and with
counsel satisfactory to CITY) and will indemnify CITY for any
judgment rendered against it or any sums paid out in
settlement or otherwise.
iii. Intellectual Property Infringement. Notwithstanding any
provision to the contrary, CONSULTANT will, at its own
expense, indemnify and defend CITY against any claim that
CONSULTANT's services or work product furnished under this
Agreement infringes a patent or copyright in the United States
or Puerto Rico. In such event, CONSULTANT will pay all costs
damages and attorney's fees that a court finally awards as a
result of such claim. To qualify for such defense and payment,
CITY must (a) give CONSULTANT prompt written notice of any
such claim; and (b) allow CONSULTANT to control, and fully
cooperate with CONSULTANT in the defense and all related
settlement negotiations. CITY agrees that if the use of
CONSULTANT's services or work product becomes, or
CONSULTANT believes is likely to become, the subject of such
an intellectual property claim, CITY will permit CONSULTANT,
at its option and expense, either to secure the right for CITY to
Agreement No. 6229
continue using CONSULTANT's services and work product or
to replace it with comparable services and work product.
B. For purposes of this section "CITY" includes CITY's elected and appointed
officials, officers, employees, and volunteers.
C. It is expressly understood and agreed that the foregoing provisions will
survive termination of this Agreement.
D. The requirements as to the types and limits of insurance coverage to be
maintained by CONSULTANT as required by Section 6, and any approval
of said insurance by CITY, are not intended to and will not in any manner
limit or qualify the liabilities and obligations otherwise assumed by
CONSULTANT pursuant to this Agreement, including, without limitation, to
the provisions concerning indemnification.
6. INSURANCE.
A. Before commencing performance under this Agreement, and at all other
times this Agreement is effective, Consultant will procure and maintain the
following types of insurance with coverage limits complying, at a minimum,
with the limits set forth below:
Commercial general liability:
Professional Liability
Workers compensation
$1,000,000
$1,000,000
Statutory requirement.
B. Commercial general liability insurance will meet or exceed the
requirements of the most current ISO-CGL Form. The amount of
insurance set forth above will be a combined single limit per occurrence
for bodily injury, personal injury, and property damage for the policy
coverage. Liability policies will be endorsed to name City, its officials, and
employees as "additional insureds" under said insurance coverage and to
state that such insurance will be deemed "primary" such that any other
insurance that may be carried by City will be excess thereto. Such
insurance will be on an "occurrence," not a "claims made," basis and will
not be cancelable or subject to reduction except upon thirty (30) days prior
written notice to City.
C. Professional liability coverage will be on an "occurrence basis" if such
coverage is available, or on a "claims made" basis if not available. When
coverage is provided on a "claims made basis," Consultant will continue to
maintain the insurance in effect for a period of three (3) years after this
Agreement expires or is terminated ("extended insurance"). Such
Agreement No. 6229
extended insurance will have the same coverage and limits as the policy
that was in effect during the term of this Agreement, and will cover
Consultant for all claims made by City arising out of any errors or
omissions of Consultant, or its officers, employees or agents during the
time this Agreement was in effect.
D. Consultant will furnish to City duly authenticated Certificates of Insurance
evidencing maintenance of the insurance required under this Agreement,
endorsements as required herein, and such other evidence of insurance
or copies of policies as may be reasonably required by City from time to
time. Insurance must be placed with insurers with a current A.M. Best
Company Rating equivalent to at least a Rating of "A:VII."
E. Should Consultant, for any reason, fail to obtain and maintain the
insurance required by this Agreement, City may obtain such coverage at
Consultant's expense and deduct the cost of such insurance from
payments due to Consultant under this Agreement or terminate.
7. TERMINATION OF AGREEMENT
A. During the term of this Agreement, CITY may, in its sole discretion,
terminate this Agreement with or without cause by giving written notice to
CONSULTANT. Termination will become effective immediately upon the
giving of notice as provided in this section of the Agreement. The City
Manager may exercise such right of termination on behalf of CITY.
B, Except as otherwise provided, upon termination of this Agreement, CITY
will be liable to CONSULTANT only for all work done by CONSULTANT
up to and including the date of termination of this Agreement unless the
termination is for cause, in which event CONSULTANT need be
compensated only to the extent required by law.
8. NOTICES
A. CONSULTANT will notify CITY of changes in address. All notices given or
required to be given pursuant to this Agreement will be in writing and may
be given by personal delivery or by mail. Notice sent by mail will be
addressed as follows:
To CITY: City of El Segundo
350 Main Street
El Segundo, CA 90245
Attention: Human Resources Dept
Phone: (310) 524-2381
Email: hr@elsegundo.org
Agreement No. 6229
To CONSULTANT: Scantron Corporation
1313 Lone Oak Rd
Eagan, MN 55121
Attention: Tom Hansen
Phone: (651) 683-6152
Email: tom.hansen@scantron.com
and, when addressed in accordance with this paragraph, will be deemed
given upon deposit in the United States mail, postage prepaid. In all other
instances, notices will be deemed given at the time of actual delivery.
Changes may be made in the names or addresses of persons to whom
notices are to be given by giving notice in the manner prescribed in this
paragraph.
9. AUDIT AND ACCESS TO RECORDS. CONSULTANT, including
CONSULTANT's subcontractors, will maintain records and other evidence of all
expenses incurred in the performance of this Agreement for a period of three (3) years
after completion. CITY or any of its duly authorized representatives will, for the purpose
of audit and examination, have access to and be permitted to inspect such records and
other evidence of expenses and costs charged to CITY and/or incurred for work related
to SERVICES. For purposes of audit, the date of completion of the Agreement will be
the date of CITY'S payment for CONSULTANT's final billing (so noted on invoice) under
this Agreement.
10. NON -APPROPRIATION OF FUNDS. Payments due and payable to CONSULTANT
for current services are within the current budget and within an available, unexhausted
and unencumbered appropriation of the CITY. In the event the CITY has not
appropriated sufficient funds for payment of CONSULTANT services beyond the current
fiscal year, this Agreement will cover only those costs incurred up to the conclusion of
the current fiscal year.
11. INDEPENDENT CONTRACTOR. CONSULTANT, CONSULTANT's
subconsultants, employees, agents, and representatives, will act as independent
contractors while performing the SERVICES and will have control of CONSULTANT's
work and the manner in which it is performed, except as is otherwise provided herein.
CONSULTANT will be free to contract for other services performed during the term of
this Agreement. CONSULTANT is not an agent or employee of CITY and is not entitled
to participate in any pension plan, insurance, bonus or similar benefits CITY provides for
its employees.
12. ASSIGNMENT. An essential element of this Agreement is the skill and creativity
of CONSULTANT. CONSULTANT may not, therefore, assign the creative portions of
the work to a third party for the production of the work without CITY's prior written
consent. Failure to conform to this provision may result in termination of the
Agreement_
Agreement No. 6229
13.CONSISTENCY. In interpreting this Agreement and resolving any ambiguities, the
main body of this Agreement takes precedence over the attached Exhibits; this
Agreement supersedes any conflicting provisions. Any inconsistency between the
Exhibits will be resolved in the order in which the Exhibits appear below:
A. Exhibit A;
B. Exhibit B.
14. ENTIRE AGREEMENT. This Agreement, and its Attachments, sets forth the
Parties' entire understanding. There are no other understandings, terms or other
agreements expressed or implied, oral or written. There are three (3) attachments to
this Agreement. Except as otherwise provided, this Agreement will bind and inure to the
benefit of the Parties to this Agreement and any subsequent successors and assigns.
15. MODIFICATION. No alteration, change or modification of the terms of the
Agreement will be valid unless made in writing and signed by both Parties hereto and
approved by appropriate action of CITY. The city manager may exercise this authority
on behalf of CITY.
16. ELECTRONIC SIGNATURES. This Agreement may be executed by the Parties on
any number of separate counterparts, and all such counterparts so executed constitute
one Agreement binding on all the Parties notwithstanding that all the Parties are not
signatories to the same counterpart. In accordance with Government Code §16.5, the
Parties agree that this Agreement, Agreements ancillary to this Agreement, and related
documents to be entered into in connection with this Agreement will be considered
signed when the signature of a party is delivered by electronic transmission. Such
electronic signature will be treated in all respects as having the same effect as an
original signature.
17. TAXPAYER IDENTIFICATION NUMBER. CONSULTANT will provide CITY with
CONSULTANT's Taxpayer Identification Number.
18. STATEMENT OF EXPERIENCE. By executing this Agreement, CONSULTANT
represents that CONSULTANT has demonstrated trustworthiness and possesses the
quality, fitness, and capacity to perform the Agreement in a manner satisfactory to
CITY. CONSULTANT represents that CONSULTANT's financial resources, surety and
insurance experience, service experience, completion ability, personnel, current
workload, experience in dealing with private parties, and experience in dealing with
public agencies all suggest that CONSULTANT is capable of performing the proposed
contract and has a demonstrated capacity to deal fairly and effectively with and to
satisfy a public agency.
19. WAIVER. A waiver by CITY of any breach of any term, covenant, or condition
contained in this Agreement will not be deemed to be a waiver of any subsequent
Agreement No. 6229
breach of the same or any other term, covenant, or condition contained in this
Agreement whether of the same or different character. The payment or acceptance of
fees for any period after a default will not be deemed a waiver of any right or
acceptance of defective performance.
20. SEVERABILITY. If any portion of this Agreement is declared by a court of
competent jurisdiction to be invalid or unenforceable, then such portion will be deemed
modified to the extent necessary in the opinion of the court to render such portion
enforceable and, as so modified, such portion and the balance of this Agreement will
continue in full force and effect.
21. TIME IS OF ESSENCE. Time is of the essence for each and every provision of
this Agreement.
22. FORCE MAJEURE. Should performance of this Agreement be prevented due to
fire, flood, explosion, acts of terrorism, war, embargo, government action, civil or military
authority, the natural elements, or other similar causes beyond the Parties' reasonable
control, then the Agreement will immediately terminate without obligation of either party
to the other.
23. INTERPRETATION; VENUE. This Agreement and its performance will be
governed, interpreted, construed and regulated by the laws of the State of California.
Exclusive venue for any action involving this Agreement will be in Los Angeles County.
[SIGNATURES ON NEXT PAGE]
Agreement No. 6229
IN WITNESS WHEREOF the parties hereto have executed this contract the day
and year first hereinabove written.
CITY OF EL SEGUNDO
Rebecca Redyl,
Human Resources Director
ATTEST,-
Tracy- Wea r,
City Clerk
APPROVED AS TO FORM;
MARK D. HEN, L Y, City Attorney
By:
Joaquin aque, I7iput City Attorney
�a
Insu-raance Approval
�xd
Hank Lu,
Risk Manager
SCANTRON CORPORATION
By: A"'A
Title: JoAnn Smith, VP of Finance
Agreement No. 6229
EXHIBIT A
S C A N T R 0 N
ASSESSMENT SOLu-riONS
Scantron's Response to:
El Segundo Police Department
August 25, 2021
W,
Aebecca Redyk
350 Main Street
§---1 -Segli.-ndo, CA 90245
S-16-440-8484
rnicheiAe.fac,hicaos[-iDd.ca.gov
Tom Hansen
Account Rep resza niadve
Puiblic- Sechm, - SUate & Lm;a!
Direct: 6-51.68-016-15'2
2:
Toll Free: 3 (110.7 22. b 8 7 6 x 16 152'
Scantron Corporation
Address: 1313 Lone Oak Rd., Eagan, MN 55121-1334 1 Office: 651.683-6000
Website www.scantron.com
Agreement No. 6229
EXHIBIT A
S C A N T R 0 N
Project Scope:
The El Segundo Police Department is looking to add a Scantron solution for their Human
Resources department_ Staff at the department have used the Scantron technology in the past
and are looking for a product that will interface with their NeoGov software.
Recommendation:
Scantron is recommending the Scantron I1\14ES scanner with Remark Classic OMR software for
a Single Workstation License installation with NeoGov user pricing.
Remark Classic OMR Software V.6: Single Workstation User Version
■ Test scoring and test question analysis
• Ability to capture enrollment data
• Ability to capture Questionnaire Data
• On screen verification (double bubbles filled in)
• Create multiple reports
IN 4ES Scanner
Image capture technology
0 Multi -feed detection
N Dual Scan (single pass reads two sides)
100 sheet auto -feed input hopper
13E.5 Lowe Oak Road. Eagan, 'MN 5.5121 1800 722.6876 I www.sccantron.com
SMART STARTS HERE
R2
a
I
Agreement No. 6229
EXHIBIT A
S C A N T R 0 N
Hardware, Software, Maintenance,
&—training
. . . ............................
Measure
Price -
Total
'RC01
Remark Classic OMR - Single
1
Each
.... .
$ 1,425.00
.. ...
$ 1,425.00
Workstation v6 includes Freight &
First Year Support included,
RC�b SA
Remark Classic OMR Workstation
4
Each
$ 350.00
$ "1,218.00
Annual Software Assurance (*13%
multi -year discount applied)
Onfinnal 4 Years
IN4/2304SSW
7��IWarranty
IN 4ES scanner, w/Dust Cover, Dual
1
Each
$4_,87000
$ 4,870.00
Read, Image and OMR, 100 Sheet
Auto -feeder w/1 " Year Depot
,41P
Freight
1
Each
$ 55.00
$ 55.OD
ININSTALL
Onsite Installation .................
1
ffa_ch_$
300,00
$ 300.00
6800WG
Remark Classic OMR v6 Group
I
Each
$ 450.00
$ 450.00
Training Online.- Live with an
Instructor two hours)
Total Without Optional
TOTAL
$ 7,100.90
1313 Lone Oak Road, Eagan, NIN 55121 1 600 722 6876 1 u✓wmsccntran.com
SMART STARTS HERE
Agreement No. 6229
EXHIBIT
S C A N T R 0 N
Additional Quote Terms:
❑ Pricing is valid for 30 days from date on this quote, unless extended in writing by Scantron.
❑ Pricing does not include sales tax or shipping, if applicable.
❑ Payment terms are net 30 with a valid purchase order (on approved credit), or pre -paid with a credit card.
FJ All Quotes/Proposals are subject to product availability. Scantron reserves the right to cancel the quote in the event
the requested product is or becomes unavailable,
❑ All products will be shipped F.O.B. Origin.
❑ If Customer requests changes to the scope of the project. Scantron reserves the right to make related changes to
price, hardware, software or services, and to adjust deliverable dates.
❑ Fees for services not scheduled within 9 months of invoice date will be forfeited, unless extended in writing by
Scantron.
❑ In addition to the terms set forth herein, all sales in this quote shall be governed by Scantron Corporation's Terms
and Conditions of Sale located at http://www,scantron,com/legal/terms ("Terms and Conditions").
❑ The terms of any Customer issued purchase order or any other communication which are additional to or
inconsistent
with this quote are not binding unless expressly agreed to in writing by Scantron.
❑ Customer's agreement with the terms of this quote shall be indicated by either a signature hereon, or by issuance
of
a purchase order confirming Customer's intent to purchase the products and/or services included on this quote.
Once accepted by Scantron„ all sates in this quote are finat.
Accepted by:
Customer's Authorized Signature Date
Company Name
Title of Person Who Signed
...
Print Name of Person Who Signed
Qu®te_te— Rev, 02-19-2020
1313 L one Oak Road Eagan, MN 55121 1 800,722 6876 1 www.scantron.coni
SMART STARTS HERE
Agreement No. 6229
��"�"�,����` EXHIBIT
STANDARD TERMS AND CONDITIONS
HARDWARE, SOFTWARE AND SERVICES
1. ORDERS, These Standard Terms, together with any Schedules (collectively the "Agreement') form
a legal agreement between Scantron Corporation ('Scanlron") and the legal entity that orders
Products and/or Services from a proposal, order form or other sales documentation ('Order")
incorporating this Agreement ('Customer"). Products and Services may be set forth in a Purchase
Order, but Purchase Order terms are not binding unless Scanlron expressly assents to such terms in
writing, This Agreement forms the complete contract for this transaction between Scantron and
Customer.
2. DEFINITIONS.
'Custom Productions' means the reproduction by Scantron of materials provided by Customer, or the
creation or printing by Scantran of Fortes or other materials pursuant to Customer's directions or
specifications.
"Customer Content" means all materials posted by Customer within Software or provided to Scanlron
for Customer's use with a Product, including but not limited to Customer's item bank of testing
materials and item banks or other materials owned by third parties.
"Documentation- means any user manuals and/or other materials accompanying the applicable
Product or Service that describe product features orfunctonality.
'Product' means any hardware, software, forms printed by Scantron (the 'Forms"), third party
products or other items provided by Scantron and/or its affiliates and subcontractors as described in
the applicable Schedule or Documentation.
'Purchase Order' means any Customer -issued order forth or other communication authorizing or
memorializing the purchase of Products and/or Services.
'Schedule' means any Scantron Orders, attachments, statements of work, click -through license
agreements, specifiralion documents or other documents, either signed by the parties or incorporated
by reference in another Schedule, that provide the terms applicable to specific Products or Services.
In the event of an inconsistency, the specific terms of a Schedule govern over these Standard Terms.
'Service' means installation, training, consulting, implementation, support, hosting or other services
provided by Scantron and/or its affiliates and subcontractors as described in the applicable Schedule
or Documentation.
3. Tfrl.C' PJSK of Loss` DEuWER'Y Scanlron will use reasonable efforts to deliver the Products and
Services to Customer on or before specified delivery dates.: Delivery of Software occurs when it is
shipped, made available for download, or otherwise provided to Customer. For Software hosted by
Scanlron, delivery occurs when the Software is first made available to Customer for use. If hardware
Products are purchased by Customer under this Agreement, Scantron transfers title to Customer
upon shipment of the hardware Products, However, Scanlron retains a purchase money security
interest in the hardware Products until paid in full by Customer. Customer agrees to execute
appropriate documents to permit Scantran to perfect its purchase money security interest. Sranlron
bears the risk of loss for Products up to and including their dale of shipment. Thereafter, Customer
assumes all risk of loss. All Products will be shipped FOB Origin. If Customer is to lease any
hardware Products, a separate leasing agreement must be executed. Customerwill promptly inspect
and accept or reject the Products and/or Services upon delivery. Absent Customer's earlier written
acceptance, Products and Services are accepted 30 days following delivery.
4. SOFTTrWARE_fwIOENSE Gf1ANT. To the extent that software Products are acquired by Customer under
this Agreement (the 'Software'), Scantron grants a non-exclusive, non -transferable license to the
Software (the 'License Grant'). Documentation is included in and with the license for the 'Software'
Each License Grant is only for the United Slates and Canada and provides Customer with the righl to
use the Software object code (not source code) for Customer's internal purposes only, to perform
services in the normal course of Customers business, and consistent with the applicable
Documentation. A Schedule, including any click -through license agreement that accompanies the
Software, may define additional or alternative terms and conditions. If you do not agree to any click -
through license agreement that is not made available for review before placing your order, you must
notify Scantron within 15 days of delivery of your rejection of such terms, and must promptly return
the Product and accompanying items for a refund of the applicable fee. Scanlron or its designated
agents shall have the right to enter and inspect Customers records and/or its computer systems for
the purpose of auditing Customers use of the Software. Access will be permitted with reasonable
advance notice during business hours.
5. SERVICES. To the extent any Services are purchased by Customer under this Agreement, all
technical Information, custom software, know-how and other intellectual property supplied by
Scantron to Customer in the course of performing any Services (the 'Work Product') is licensed to
Customer in accordance with the provisions of this Agreement. Upon delivery, Work Product shall be
'Software' under the terms of the Agreement. Scantron may charge a reinstatement fee to support or
service Products not continuously under warranty and then service, support and/or maintenance (as
applicable). CUSTOMER ACKNOWLEDGES THAT AS PART OF ANY INSTALLATION SERVICES.
SCANTRON MAY "ACCEPT" CLICK -THROUGH AGREEMENTS FOR THE PRODUCTS AND
THIRD PARTY PRODUCTS ON BEHALF OF CUSTOMER. Hardcoptes of such click -through
agreements are available upon request,
S. COMPENSATION. In addition to applicable Product and Service fees, Customer will reimburse
Scantron's out-of-pocket costs including shipping and reasonable travel and living expenses.
Invoices shall be paid within 30 days of receipt without deduction, withholding or offset. Scantron may
suspend any License Grant and/or Services provided under this Agreement until payments are
brought current. Amounts not paid when due are subject to finance charges of 1.5 % per month or the
highest rate permitted by law (whichever is lower). Customer will pay or reimburse Scanlron for all
duties, taxes (other than lazes on Scantron's income), fees or other similar amounts assessed or
imposed by governmental authorities. Scanlron may at any time change fees for Products, Services
or other items respecting future orders, Fees for Services not scheduled within 9 months of invoice
date will be forfeited unless extended in writing by Scanlron.
7. TERM' TE�,,,_,miNA.'sPON This Agreement remains in effect until Services are Complete and all License
Grants extended under this Agreement, if any, cease. Products or Services provided pursuant to a
Schedule that defines a term may not be terminated during such tern except as provided in such
Schedule. Notwithstanding the foregoing, If a party fails to cure a default within 30 days after written
notice explaining the default, the non -defaulting parry may immediately terminate any License Grants,
Services or other items to which the default relates, Termination of this Agreement terminates further
performance by the non -terminating party. If the termination is based upon a default with respect to
Software, Customer must immediately uninstall and slop using all copies of such Software, return to
Scanlron or destroy all copies of any Software and Documentation in Customers possession or
control within 20 days of termination, and certify the return or destruction of all Software and
Documentation if requested by Scantron. Early termination does not relieve Customer of any
payment obligations which arise prior to the effective dale of such termination. Sections 6, 6, 9F, 10,
12B, 12D, together with any terns of the Agreement that can be reasonably interpreted to survive
termination. shall survive.
9. PAOPRIETAKYR_PgffTa:CMFIDF.taLA9yAgYiSECURITY.
by copyright, trade secret and other proprietary rights of Scantron and its suppliers. Software and
Work Product are licensed, not sold, to Customer. Scantron reserves all rights in Products,
Services and Documentation not expressly granted to Customer.
B. LIMITATIONS ON USE. Customer will not: reproduce Products or Services; sell or sublicense
Products or Services; permit the use of Software, Services or Documentation by others or
otherwise operate Software for third parties (e.g.. as a service bureau or data processing service);
modify or translate Software; disassemble, reverse engineer or decompile Software or otherwise
attempt to discover trade secrets related to Software; use the Software in excess of the licenses
granted and license fees paid.
C. CONFIDENTIALITY. Both parties may acquire certain information that is confidential, proprietary
or trade secret information of the other party or a third party ("Confidential Information') in the
performance of this Agreement. The party receiving Confidential Information will: use such
information solely for performance under this Agreement; not disclose such informalion to any
third party (excluding agents and, in the case of Scanlron, its affiliated companies); and otherwise
protect such information from any unauthorized use or disclosure. The receiving party shall bind
its employees, agents and affiliates having access to Confidential Information to confidentiality
obligations consistent with this provision. Neither party will be obligated to keep confidential any
information that is: publicly available through no fault of such party; received by such party from a
third party not under a confidentiality obligation regarding the information; Independently
developed by such party without referring to the Confidential Information; or required by applicable
law to be disclosed by such party. Scanlron may reflect the Customer's name in a customer list
and the respective products involved,
D. CUSTOMER CONTENT AND CUSTOM PRODUCTIONS. No ownership Interest In Customer Content
or Custom Productions shall be transferred to Scantron, and Scantron will not use Customer
Content or Custom Productions other than as contemplated by the Agreement. Customer
warrants that any Customer Content and Custom Productions are either owned by Customer, or
Customer has all rights required for Scanlron to use or reproduce such Customer Content and/or
Custom Productions in the manner intended pursuant to the Agreement. Customer will indemnify,
defend and hold Scanlron harmless from any Claims, causes of action, costs (including, without
limitation, reasonable atlomeys' fees) and any other liabilities of any nature arising from or related
to claims that Custom Productions and/or Customer Content violate the rights of any third party.
E. PRIVACY/SECURrry. Scanlron will maintain and monitor policies and procedures to meet the
data privacy and security objectives of the Family Educational Rights and Privacy Act (FERPA),
the Health Insurance Portability and Accountability Act of 1996 ('HIPAA'), the Gramm -Leach -
Bliley Act ('GLBA"), the Fair and Accurale Credit Transactions Act ('FACTA'), the Fair Credit
Reporting Act ('FCRA"), and other related laws and regulations (collectively, the "Privacy Laws'),
by addressing administrative, technical and physical safeguards designed to (i) ensure the
security and confidentiality of nonpublic personal information relating to students, patients or other
consumers; (it) protect against any anticipated threats or hazards to the security or integrity of
such information; and (iii) protect against unauthorized access to or use of such information that
could result in substantial harm or inconvenience to Customer. Unless otherwise specifically
agreed in a Schedule, Customer shall be solely responsible for responding to third party requests
to disclose or change any such information. With reasonable advance notice, Scanlron will permit
a review during regular business hours to assess whether appropriate controls are in place, or will
provide documentation to verify compliance with its obligations under this paragraph. If Customer
is a "covered entity' under HIPAA, Scanlron will execute a business associate agreement ('BAA")
upon the reasonable request of Customer and to the extent required by law. Upon execution by
both parties, such BAA shall be incorporated herein by this reference. To the extent of an
inconsistency the terns of such BAA shall govern.
9. WARRANTIES.
A. FORMS. Upon delivery, Scantran warrants the Fortes against material defects in materials and
workmanship when used normally in accordance with the applicable Documentation. If a problem
occurs with the Forms caused by an error in Scantron's manufacturing process, Scantron will
replace any defective Fortes. Scantron reserves the right to examine all Fortes claimed to be
defective. If Scantron determine the Forms to be defective, Scanlron will take the necessary steps
to correct the problem by reprinting or using alternative data capture methods.
B. HARDWARE PRODUCTS. For a period of 30 days (or such other period as agreed in a Schedule,
hereinafter the "Hardware Warranty Period') following the delivery, Scantron warrants hardware
Products against material defects in materials and workmanship when used normally in
accordance with the Documentation„ A Schedule for hardware Products may include one of the
following speck warranties:
DEPOT WARRANTY. During the Hardware Warranty Period, Customer shall ship, at its own
expense, defective hardware Products to the Scanlron Depot Service Center for repair. The
cost of return shipping shall be paid by Scantron,
CENTRAt Ex_CtiiANG . WAD Y,„ During the Hardware Warranty Period, Customer shall
promptly call Scantron's Call Center for diagnosis and consultation. Upon Scantron's diagnosis
that the hardware is defective, Scantron will ship a replacement for the hardware Product.
Customer shall install the replacement per Scantron's specifications. Within 5 business days
of receipt of the replacement. Customer shall return the original defective Product to Scantron
via the enclosed shipping label. If Customer fails to return the Product within 10 business days,
Customer shall be charged the full retail value of the Product.
ON -SITE WARRANTY. During the Hardware Warranty Period, Scantron shall provide repair
services at Customers premises (during Scanlron's regular business hours).
Scantron will use reasonable efforts to Correct any hardware Product (by either repair or
replacement, at Scantron's sale discretion) that fail to comply with the applicable warranty.
Customer must give Scantron prompt written notice of failure during the applicable warranty
period, and Scanlron must be able to reproduce the noncompliance. Unless otherwise specified
in a schedule, the terms of the Depot Warranty apply to Scanlron hardware Products. Even if
delivered as an inseparable part of a hardware Producl, Software is covered exclusively by the
Software Warranty. Customer will provide reasonable assistance to Scanlron in reproducing the
failure.
C. SOFTWARE. For a period of 90 days following the delivery of the Software (or such other period
as agreed in a Schedule, hereinafter the "Software Warranty Period'), Scantron warrants the CD,
DVD downloaded files or other media against defects in materials or manufacture. If Customer
nofifies Scanlron during the Software Warranty Period, Scanlron will, at its expense, replace any
defective media returned to Scentron and will use reasonable efforts to correct material failures of
the Software to function In accordance with applicable Documentation. If Scantron is unable to
comply with the foregoing limited warranty, Customers sole and exclusive remedy shall be to
terminate the License Grant by returning the Software for a refund of the Software fees,
Scantron's sole obligation, and Customers sole remedy, is to correct such errors, which may
include reasonable 'workaround' solutions. If the failure reported is attributable to user error, to
Customers failure to provide an acceptable operating environment, or to any other non -warranted
A. PROPRIETARY RIGHTS. The Products and Services (including any Work Product) are protected
SCANTRON CORPORATION CONFIDENTIAL
STANDARD TERMS AND CONDITIONS PAGE 1 OF 2 Rrv.rn-mill
HARDWARE, SOFTWARE AND SERVICES
cause, then Customer will be obligated to pay Scanlron for its time and expenses incurred in 12. MISCELLANEOUS.
Aiannneinn IPoa rat tea al Cr9nlrnn'e APoen_elnnAarA rsl®e.
D. SERVICES. For a period of 30 days following completion Services (or during such other period
as agreed in a Schedule, hereinafter the 'Services Warranty Period"), Scantron warrants that the
Services will be provided in a professional and workmanlike manner consistent with the definition
of the Services to be performed, and that Work Product, it any, will substantially meet the
specifications slated in a Schedule when delivered by Scantron for installation. Provided that
Customer gives Scantron written notice of a failure to meet the foregoing warranty within the
Services Warranty Period, Scanlron will use reasonable efforts to correct any Services that fail to
comply with the foregoing warranty. There is no assurance that Work Product will be enror-free,
but Scanlron will undertake to identify and correct material, reproducible Work Product and/or
Documentation errors that Customer timely brings to Scantron's attention. If Scantron is unable to
correct or re -perform the Services, Customer's sole and exclusive remedy shall be a refund of the
reasonable portion of the fees paid with respect to such Services,
E. THIRD PARTY PRODUCTS. Some Products and Services may include or operate in conjunction
with computer programs, data or hardware supplied by a third party. Other than third party
programs or data that are embedded in, and delivered as, an inseparable part of the Product or
Services, all third party computer programs, data and hardware ("Independent Third Party
Products") are supplied 'AS IS" by Scanlron. If Independent Third Party Products are supplied
with separate warranty and support terms that can be passed through to Customer, the third party
that supplies such programs and data is responsible for fulfilling such warranty and support temps,
and Scanlron makes no warranty and assumes no obligation with respect to such items.
F. EXCLUSIVE WARRANTIES AND REMEDIES. Scanlron does not warrant that the Products are free
from all bugs, errors or omissions, or that Services will uninterrupted or error -free. The foregoing
warranties do not extend to any failure of the Products or Services caused by: modification or
change not made by Scanlron; noncompliance because of use of the Products or Services in
combination with items furnished by anyone other than Scanlron or not approved in writing for use
with the Products or Services by Scanlron; or use of the Products in an operating environment
other than as specified in writing by Scanlron; damage caused by accident, abuse, misuse, liquid
contact, power surge, tire, earthquake or other external cause.. THE WARRANTIES AND
REMEDIES SET FORTH IN THIS SECTION ARE EXCLUSIVE AND ARE IN SUBSTITUTION
FOR ALL OTHER WARRANTIES, OBLIGATIONS AND LIABILITIES OF SCANTRON,
INCLUDING, BUT NOT LIMITED TO, ANY IMPLIED WARRANTY OF MERCHANTABILITY,
NON -INFRINGEMENT OR FITNESS FOR A PARTICULAR PURPOSE,
10. I_MTAnONS OF LIAgIuaY. SCANTRON'S ENTIRE LIABILITY, WHETHER IN CONTRACT,
TORT (INCLUDING NEGLIGENCE), PRODUCT LIABILITY, STRICT LIABILITY, OR OTHER LEGAL
OR EQUITABLE THEORY, FOR ANY CLAIM ARISING FROM OR RELATED TO THIS
AGREEMENT OR ANY PRODUCTS, SERVICES, DELIVERABLES OR OTHER ITEMS FURNISHED
OR TO BE FURNISHED UNDER THIS AGREEMENT, WILL IN NO EVENT EXCEED THE FEES
PAID TO SCANTRON BY CUSTOMER FOR THE APPLICABLE ITEM WHICH IS THE BASIS FOR
THE CLAIM DURING THE 12 MONTHS IMMEDIATELY PRECEDING THE OCCURRENCE OF THE
EVENT GIVING RISE TO THE CAUSE OF ACTION, NOTWITHSTANDING ANY FAILURE OF
ESSENTIAL PURPOSE OF ANY LIMITED REMEDY. NO ACTION RELATED TO THIS
AGREEMENT MAY BE BROUGHT MORE THAN 2 YEARS AFTER THE OCCURRENCE OF THE
EVENT GIVING RISE TO THE CAUSE OF ACTION. IN NO EVENT WILL SCANTRON BE LIABLE
TO CUSTOMER OR ANY OTHER PERSON OR ENTITY FOR LOST DATA, LOST PROFITS,
INTEREST OR COST OF MONEY; OR FOR COVER; OR FOR ANY PUNITIVE, INDIRECT,
INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES ARISING OUT OF SCANTRON'S
PERFORMANCE OR NONPERFORMANCE OR THE USE OF, INABILITY TO USE OR RESULTS
OF USE OF ANY PRODUCTS, SERVICES, DELIVERABLES, OR OTHER ITEMS.
11. arrvise. OF tarRINGrMw S6&M5. Scantron will defend Customer against any claim based
upon infringement of any U.S. patent, copyright or trademark by the Products (not including the
Independent Third Party Products), provided that: Customer promptly notifies Scantron of such
proceeding: Scanlron has exclusive control over the defense and settlement of the proceeding;
Customer provides reasonably requested assistance in the defense and settlement of the proceeding;
and Customer complies with any settlement or court order made in connection with such proceeding.
Scantron will: indemnlfy Customer against any and all damages, costs and attorneys' fees finally
awarded against Customer in any such proceeding; reimburse Customer's reasonable, out-of-pocket
expenses incurred in providing assistance requested by Scantron; pay any amounts agreed by
Scanlron in settlement of any claims of infringement. Scantron's obligations under this Section will
not apply to any infringement arising out of: use or combination of the Products with products, goods,
services or other items not furnished for use with the Products and/or Services by Scantron;
modification or change not made by Scanlron; use of an infringing version of the Products when a
comparable noninfringing version has been made available to Customer, or Products developed to
specifications which Customer has supplied or required of Scantron. In the event that Scantron
reasonably believes it will be required to discontinue offering the Products, Scantron will, at its option,
do one of the following: obtain for Customer the right to continue use of the Products; modify the
Products to make them noninfringing; or if Scantron is not reasonably able to accomplish the
foregoing, terminate Customer's right to use the infringing Products and refund to Customer a pro-rela
portion of the fees Customer paid to Scanlron for such Products, amortized on a three-year straight
line basis from the date of delivery. THIS SECTION STATES THE ENTIRE LIABILITY OF
SCANTRON WITH RESPECT TO INFRINGEMENT OF ANY INTELLECTUAL PROPERTY RIGHT
BY ANY PRODUCTS, SERVICES, WORK PRODUCT OR OTHER ITEMS FURNISHED UNDER
THIS AGREEMENT.
Agreement No. 6229
EXHIBIT B
A. No WAIVER, The failure of either party to enforce any rights under this Agreement or to take
action against the other party will not be deemed a waiver by that party as to subsequent
enforcement of rights.
B. ASSIGNMENT. This Agreement may not be assigned or transferred in any way by Customer
without Scantron's prior written consent. Attempted assignments without Scantron consent are
void,
C. NOTICE& Notices shall be in writing and delivered by hand, mail or courier and will be deemed
delivered only upon receipt.
D. DISPUTES; APPLICABLE LAW AND VENUE. This Agreement will be interpreted, construed and
enforced in all respects in accordance with the local laws of the Slate of Minnesota, USA, or the
laws of such other state as identified in a Schedule, without reference to its choice of laws
principles. Customer and Scanlron each waive application of the 1900 UN Convention on
Contracts for the International Sale of Goods. In the event of a dispute, the parties will first
attempt to resolve the matter informally through good faith negotiations involving executives from
each party.. Failing resolution, the parties agree to mediation administered by the American
Arbitration Association. The costs of mediation shall be shared equally by the parties, All
disputes shall be brought in the federal or state court with jurisdiction over residents of Dakota
County, Minnesota, or such other venue as is specified in a Schedule, and each party consents to
the exclusive jurisdiction of such courts.,
E. EQUAL EMPLOYMENT OPPORTUNITY; AFFIRMATIVE ACTION. In connection with Scantran's
performance under this Agreement, unless exempt, the Equal Opportunity Clauses as set forth in
Section 202 of Executive Order 11246, as amended, 41 C.F.R. § 1,4(a), Section 402 of the
Vietnam Era Veterans Readjustment Act of 1974, as amended, 41 C.F,R. § 250,.5(a), Section 503
of the Rehabilitation Act of 1973. as emended, and 41 C.F.R. § 741,.5(a) are incorporated by
reference. Scanlron has developed and maintains an affirmative action program.
F. INSURANCE Scanlron shall carry and maintain commercial general liability insurance in an amount
not less than $1 million per occurrence with a $2 million aggregate covering claims for bodily injury,
death, personal injury or property damage,
G. RESTRICTED RIGHTS. If Customer is the United Stales Government or any agency or instrumentality
thereof, the Software and Documentation are provided with RESTRICTED RIGHTS. Use, duplication or
disclosure by the United States Government is subject to restriction as set forth in (i) subparagraph
(c)(1)(ii) Of the Rights in Technical Data and Computer Software Cause at DFAR 252.227-7013
(October 1988), if Customer is subject to Department of Defense Federal Acquisition Regulations; or (il)
FAR 52,227-19 (June 1987). it Customer is not subject to ft DFAR, but is the United Stales
Government or any agency or instrumentality thereof. The -manufacturer" or "contractor', for purposes
of such provisions, is Scantron Corporation, 1313 Lone Oak Road, Eagan, MN 55121-1334. The
Software is a "commercial item" as that tern is defined at 48 C,F.R. 2.101 (Oct 1995). consisting of
'commercial computer software' and 'commercial computer software documentation,' as such terms
are used in 48 C,F.R.12.212 (Sept 1995). Consistent with 40 C.F.R, 12.212 and 48 C.F.R.. 227-7202-1
through 227.7202-4 (June 1995), all U.S. Government End Users acquire the Software and
Documentation with only those rights set forth herein-
H. COMPLIANCE NTH LAWS. Customer shall, at at times, use the Products and Services in compliance
with all applicable laws, including observing the terms and Conditions of its own privacy polices and
applicable copyright laws when requesting the design and printing of forms..
I. EN71RE AGREEMENT. This Agreement in Conjunction with the applicable purchase order and
Schedules supersedes any and all prior agreements among the parties related to the Products, the
Services and any other items provided hereunder. No modification of any of the provisions of this
Agreement will be valid unless set forth in a written instrument signed by both parties.,
-END-
SCANTRON CORPORATION CONFIDENTIAL
STANDARD TERMS AND CONDITIONS PAGE 2 OF 2 ar. oa-zr-zale
HARDWARE, SOFTWARE AND SERVICES