CONTRACT 2774H AmendmentAgreement No. 2774H
Agreement No. 2774H
EIGHTH AMENDMENT TO
AGREEMENT NO.2774 BETWEEN
THE CITY OF EL SEGUNDO AND
PROGRESSIVE SOLUTIONS, INC.
THIS EIGHTH AMENDMENT ("Amendment") to Agreement No. 2774 ("Agreement") is made
and entered into this 10 day of June, 2023, by and between the CITY OF EL SEGUNDO, a
general law city and municipal corporation existing under the laws of California ("CITY"), and
PROGRESSIVE SOLUTIONS, INC., a California corporation ("LICENSOR'). The parties
agree as follows:
The Agreement is amended so that, in consideration of LICENSOR providing all services
listed in the attached Attachment 1, the CITY agrees to pay the annual support fees and
additional licenses specified for a total, not -to -exceed amount of $31,858.34 for the
period specified below.
2. The license term for the above services and the term of this Amendment will be from July
1, 2023 to June 30, 2024. Any Agreement term, including Agreement Section II
notwithstanding, the extension of the Agreement through this Amendment, and any
associated license term, must only be made via subsequent Agreement amendment or
new agreement.
3. This Amendment may be executed in any number of counterparts, and all such
counterparts so executed constitute one Amendment 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 Amendment 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.
4. Except as modified by this Amendment, all other terms and conditions of the Agreement
remain the same.
[SIGNATURE ON NEXT PAGE]
Agreement No. 2774H
Agreement No. 2774H
IN WITNESS WHEREOF the parties hereto have executed this Amendment the day and year
first liereinabove written.
CITY OF EL SEGUNDO,
a general law city
1: sell George, City Manager
t q rt�� �i ctor ..,._.._ _.
ATTEST:
T- —w _ ....-4-0�1 ,..._._
Tracy Weaver, ty Clerk
APPROVED AS TO FORM:
Mark D. Hensley, City Attorney
ey
2
PROGRESSIVE SOLUTIONS, INC.
a California Corporation
.��/ s
Name
Glenn Vodhanel, President/Chief Executive Officer
Title
Taxpayer ID:33-0113562
ATTACHMENT 1
Agreement No. 2774H
Progressive Solutions, Inc.
P 0 Box7
Brea, CA 92822
INVOICE
Invoice Details
Create Date: 6/1/2023
Due Date: 6/30/2023
Account Information
Account Name: City of El Segundo
Contact Name: Christian Bandley
Phone #: 310/524-2355
PROGRESSIVE SOLUTIONS INC.
waid"" . q-o ressi e's l tiioiis.coin
Invoice Number
3904
Prepared By: Shawn Cobarrubias
Phone #: 714/671-1597
IT:
Email: cbandley@elsegundo.org
Billing Address: 350 Main Street
El Segundo CA 90245-3895
Agreement No. 2774H
Progressive Solutions Inc.
P 0 BOX 783
BREA, CA 92822
USAGE RIGHTS
tANPROGRESSIVE SOLUTIONS
www.progressivesolutions.com
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: 7/1/2023 License End Date: 6/30/2024
*Customer's License Start Date will commence no earlier than the signature date of this Order
TERMS OF USE
See Software Maintenance Agreement and Addendum - Hosted below
PAYM ENT TERMS
Payment Annually Payment Terms The Above Total Is Due Prior to
Frequency License Expiration To Avoid
Cessation of Software/Services
and a 25% Reinstatement Fee
EXECUTION:
To avoid conflicting terms arising out of the integration of this Agreement, resulting purchase orders, letters and confirmation, the parties agree
that should any conflict arise with any other unllateral writings of either party, this Agreement shall govern. Both Parties via their signatures below
or electronically hereby certify 1) they are authorized to sign this agreement and 2) each signer accepts the attached terms and conditions on
behalf of the above referenced organization. The Receiving Party via their signature below or electronically hereby certifies that there are no
contractual conflicts with respect to any existing city charter or similar legislation or that any conflicts have been identified, fully disclosed to
Licensor 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.
CITY OF E EGUND,O
t re og
BSc
Name
PROGRESSIVE SOLUTIONS INC.
/V -24k'
Signatu re
Glenn Vodhanel
Name
7
Date
Title
06/15/2023
Date
President/Chief Executive Officer
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 6/30/2023.
Page 2 of 6
Agreement No. 2774H
PROGRESSIVE SOL UTIONS INC.
L NATURE AND DURATION OF SUPPORT.
Progressive Solutions Inc., a Califomla 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 identified above as
'Account Name' desires to obtain Software Maintenance for the specified Licensed
software. This Agreement provides for remote services to be performed in Orange
County, California, only during normal business hours (6:30am PST to Spm PST).
Maintenance services shall start and end on the dates specified above in the section
tided 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 gf a non-t.insor hosts server absent a hardware upgrade
which consequently results in the need to reinstalUveirfy the SOL 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 the above referenced
License End Date. 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 THE REINSTATEMENT FEE IDENTIFIED ON THE
COVER PAGE OF THIS AGREEMENT.
IL LICENSEE'S RIGHTS, OBLIGATIONS & REPRESENTATIONS
a) Training for users, managers and other personnel is essenfial for efficient
operation of the Licensed software. Licensee shad 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 coordinate and/or test/verify all configurations including but not limited to: general
ledger accounts, rates, rate types biding & 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 a test on software functionality may be required) 2) have scheduled/received onsfte or
remote training from Licensor at current rates 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 upgradestversion releases/ opeaaUng 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 B: (Requirements) are met by all machines intended to execute the
Licensed software. Licensee understands that software corrections are typically
EXHIBIT A: SOFTWARE
MAINTENANCE AGREEMENT
Implemented via new software releases. Failure to implement those identified software
corretdions or to maintain the specified requirements shall relieve Licensor from any and
all Software Maintenance responsibilities relating to any Licensee reported Issue(s) that
the Licensor corecUon(s) was/were offered to address for local non -hosted
implementations. In the event Licensee fails to implement identified software
corrections, any subsequent services relating to the Licensee reported issue(s) will only
be provided on an emergency Ume 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
that Licensee staff regularly attend Licensors annual user training/conferences 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 Acf), Licensee wHI 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 conscientiously ensure the existence of functional daily backups for
at least the last 10 business days and shall not remove or disable any SOL agent or
backup plan initialed 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
loss, an addi0onal 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 intemet, (2) permit access through any
routerKrewall 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 TeamVlewerm 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 B:
(Requirements and Project Implementation Matrix) at the lime 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® SOL tools and other mutually agreed requirements
such as: Microsoft® Terminal Services, Cibix 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 Ume 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 Ume 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 account for the additional
costs incurred to provide such additional support. Should Licensee desire emergency
support, on -site support services are available at Licensors 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 intemet access 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
local 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 local 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.
I) Network Performance: Licensee understands and acknowledges that network
performance 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
AGSOFTMT(4.2) Page 3 of 6
Agreement No. 2774H
PROGRESSI VE SOL UTIONS INC.
staff, a Licensee retained consultant or Licensor (at Licensee's cost) to evaluate
network/software performance. Such network evaluation shall utilize "Network Sniffer"
or equivalent tools to facilitate generation of quantitative results. Licensee agrees to
request & incorporate Licensor's recommendations in the network evaluation 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) islare 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.
t) PCI Compliance: While Licensors payment processing solutions are designed to
CISP (Cardholder Information Security Program) & PCI (Payment Card Industry Dale
Security Standard) guidelines, Licensee understands that Licensors PCl/PADSS
compliance and certification does not automatically result in Licensee compliance.
Licensee acknowledges that to maintain CISPIPCI 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, eta 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 partners/vendors 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 II of this agreement, Licensee shall discontinue use of Licensors
databaselshucture, software & related electronic forms as described in Section V-
Default.
III. LICENSOR'S RIGHTS, OBLIGATIONS & REPRESENTATIONS
a) Support Services: During the term of this Agreement, Licensor shall make
available to Licensee without additional 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 person(s) 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
2. Assistance to isolate the source of problems and/or to troubleshoot difficulties
resulting from sources other than Licensor's provided products or services,
such as:
• Virlualization and/or Remote Access configuration & setup
• Personal Computer setup, configuration & optimization
■ Basic Microsoft Wlndowsn 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 31d 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 Licensors right 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
EXHIBIT A: 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 Licensee's designated
support representative(s) of an apparent error in any supported release of the Licensed
software, 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 ma(edally 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
corn leyon iarrteu
Call
Description
Standard
Prloft
Completion
A System
Fatal Issues that result in Licensee's inability to fulfill critical business
Within 12
Down
functions Q,e. those pertaining to core functionality such as billing and
hours
reoeipft & that have no reasonable workaround.
B - Urgent
Serious issues significantly impacting use of Licensed software but do
Within 24
not prevent core functions defined above from belgg fulfilled.
hours
C - Normal
All other issues, except those classified as D (low)
Within 36
hours
D—Low
Issues with minimal impact on operations requiring Incommensurate
None
support effort. (Work will be performed on a best efforts basis when
requests with higherpnorNes do not take precedence.) Issues such as
proposed elective configuration changes that are by nature riot time
sarWfivaa and may be undertaken as pianneed Ueensee service
initiatives outside the of this Weement
Licensee may request a ranking of the call priority when initially reporting the incident.
Should there be any disagreement over the priority assigned to a particular incident, 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:
1. Those required to remedy problems that stem from changes to or defects In the
initially installed/approved system configuration or in subsequent
modified/approved Licensor system configurations;
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 strudurelconfiguration
C. modifications to Licensee's data without use of Licensor approved methods
(i.e. appYcation programming interfaces-AP4.
5. Report rewrites requiring more than 15 minutes after approval of initial report
custornization(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) Limped 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 those who perform similar
services at the time the services are performed, and in accordance with accepted
industry practice. 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(4.2) Page 4 of 6
Agreement No. 2774H
PROGRESSIVE SOLUTIONS INC.
the Agreement, Licensor will, at no cost to Licensee, re -perform or perform the services
so that the services conform to the warranties.
f) Nothing contained in this Agreement shall be construed to obligate Licensor to
provide any services whatsoever subsequent to the expiration of this Agreement or any
IV. SUPPORT FEES AND PAYMENTS
EXHIBIT A: 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.
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 terminate 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 eadier), 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 IV) 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 atemations 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 reinstatement fee based of the
delinquent maintenance balance (identified on the cover page of this agreement) shall be due for failure to tender payment either by the original expiration dale 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 dale shall in addition to the reinstatement 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 date of written notice by the non -defaulting party, then the
non -defaulting party shall be entifled 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 -defaulting party may suspend
performance & observance of any or all its obligations under this Agreement,
without liability, until the other partys default is remedied. However, Licensee
may only suspend its obligation to make payments for Software Maintenance
and other Services provided a writen'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 notice, 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 (f) 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: Fer t t mclememlatiQms, upon 30 days from
demand by Licensor made pursuant to the default provisions (Section V) of this
agreement and/or the corresponding Software License Agreement pertaining to local
licensed software implementations, Licensee shall discontinue use of Licensors
databaselstructure, software 1£ related electronic forms. In addition, Licensee shall
provide Licensor with written confirmation 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 31d party
vendors II) all backup tapes which contain a copy of Licensor's 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" III) no attempt shall be
made to restore Licensor's 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 Licensor's 'Confirmation of Proprietary Rights 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 dale shall result in a $1,000 charge for each
subsequent 7 day period until such statement has been provided. Should any
representation provided via a transmitted 'Confirmation of Proprietary Rights and
Destruction' subsequently be found not to be true, the weekly penalty provision shall
apply as N 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,
VL GENERAL PROVISIONS
(a) The Licensed software is subject to design and operational 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 Licensoes 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 Licensor's sole liability for such inherent
defects and as Licensee's sole remedy for such inherent defects, Licensor will
provide, during the teen of this Agreement, all reasonable software maintenance
services adsing from a ho ted and/or unaltered loca#v Ire l n,�d 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 meet 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's to create most reports and forms. To ensure maximum
flexibility, customers have the option to independently design, create and maintain
additional fortes, mailings, and/or reports. Licensor's annual software maintenance
does not include technical support for user written Crystal Reports7or for minor
individual modifications to ar;oted/comtriakedf fortes 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 Licensoes 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 tax, 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 partes knowledge of the event giving rise to such cause of
action. This limitation does not apply to confidentiality obligations or to software
license rights.
(f) Notices: All notices 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) Should any conflict arise with any other unilateral writings of either party, this
Agreement shall govern. This Agreement and arty 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
AGSOFTfv1T(4.2) Page 5 of 6
Agreement No. 2774H
PROGRESSIVE SOLUTIONS INC.
written, and all previous and current negotiations and other communications between
the partes 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 obligations set forth In this Agreement shag be construed in
accordance with and governed by Federal law or the laws of the state 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 Califomia 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
EXHIBIT A: SOFTWARE
MAINTENANCE AGREEMENT
of which is expressly excluded. This Agreement may be signed in several
counterparts, each of which shall be deemed an original.
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 rules of the American Arbitration Association, and judgment upon the award
rendered by the arbitrators) may be entered in any court having jurisdiction thereof.
(h) Any change or revision to this 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 specwficalions, requested or suggested by either
party, shall be made except by written agreement of both patties..
Congress enacted the Electronic Siggnatures in Global and NAonat Commerce Act
( -Sign Act) on June 0, 2000, to vakldate the legality of electronic contraois. Should
either party receive a document sighed with a valid Oecttonlc signature, such
documents shall be accepted as'Ifthey were signed with a pen.
AGSOFTMT(4.2) Page 6 of 6
Agreement No. 2774H
PROGRESSIVE SOLUTIONS
PSI -Hosted
Licensee has elected Licensor's Fully Offerin that
includes:
• Microsoft Azure Cloud Services for the data and
application
• Well known reliable uptime and monitoring.
• Secured Socket Layer encrypted communication
• Hardware that is and remains fully compliant with licensed
software
• All wont' free, automated Data Back-ups.
• Ability to promptly adjust computing resources to
accommodate increases/decreases in citizen demand.
• Instant ability for Licensor to provide assistance as well as
seamless enhancements.
• Virtually eliminating the (cost associated with and) burden
to Licensee Information Technology staff resources!
• Vastly reduced Licensee PCI compliance burden
1. 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, 'Confidential Information', and related
media. Further, Licensee shall not transfer or make copies,
including partial copies or updated versions thereof, except for
internal reference, archive or backup purposes.
2. Because of the confidential nature of the goods and services
supplied under this Agreement, it is agreed that the Licensee
will not sell, give, or lease the software or related 'Confidential
Information' (to the extent permitted by a pertinent federal,
state orlocal Public Records Act) about any of the'Confidential
Information' or capabilities of the provided software to any
other firm or person or group without the express written
approval of Licensor or make any use thereof other than as
expressly permitted under this Agreement. Licensee will further
use its best efforts to maintain the security thereof. It is
mutually understood that since 1979 Licensor has invested
millions of dollars to produce and refine the product(s) licensed
via this agreement. Should Licensee provide or allow any
unauthorized third party access to any Licensor's 'Confidential
Information' and/or 'Trade Secrets' Licensee may have
obtained, Licensee shall be liable for damages. In addition
Licensee agrees not to contest or do or aid others in contesting
or doing anything which impairs the validity of any proprietary
and intellectual property rights, title or interest of Licensor in
and to any of Licensor's software. It is agreed, however, that
such information and capabilities which Licensee can show to
be in its possession prior to receipt of any disclosure by
Licensor shall not be subject to the provisions of this section.
3. Should Licensee anticipate termination of software
maintenance (and use of a Licensed application), Licensee
shall either extract all required Licensee data from Licensor's
data structures as Excel, csv or flat files (to prevent theft of
code that resides within Licensor's database) via any readily
available tools prior to expiration of the relevant application's
software maintenance or authorize specific data extraction
services from Licensor for a nominal fee (these services
reduce the chances of confidentiality breaches) prior to
destruction of the implemented licensed software and data
structure. Licensee agrees that the software/components
furnished by Licensor and all copies and versions thereof made
by the Licensee are and shall remain the sole property of
Licensor.
ADDENDUM: LICENSEE'S RIGHTS,
OBLIGATIONS & REPRESENTATIONS
4. Master Account Data (Account number, Name, addresses, and
other related fields), Contacts (people or entities associated
with master accounts), Notes (dated staff comments about
accounts), Payments (dated payment detail for each account)
Permits (subsidiary taxes related to a master account), photos
and scanned documents are the exclusive property of
Licensee. Log files, configurations, indices, data values
generated automatically by the Licensed software and all other
data are the exclusive property of Licensor, When Licensee
data is not hosted by Licensor and resides on a Licensee
device, access to, management and control of access to
Licensor's database/data structures (and Licensee's data
within) shall be the sole obligation and responsibility of
Licensee.
5. Customization of the Licensed software shall be limited to
modifications and enhancements that will not limit Licensor's
ability to support the product through standard releases.
Licensed functionality shall include the ability to access/export
Licensee owned data as defined in the paragraph
above. Upon request and at additional charge, Licensor may
produce a backup copy of all PSI hosted scanned documents.
6. Training for users, managers and other personnel prior to
going live is essential for efficient operation of the Licensed
software. Licensee will 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 resultsioperation of the system(s). Once system is used
for live daily activities, designee may assign follow-up on a
request for service to another staff member. However,
designee must initiate contact with Licensor's support
personnel and relate their questions or issues. Designee shall
coordinate and/or test/verify 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 Licensee's local policy).
7. Neither Licensee nor Licensor wish to incur additional time,
effort Wor costs for Licensor to get staff back up to speed with
Licensee's data migration. Should Licensee purchase data
migration services for any product, Licensee acknowledges
that data migrations are a cooperative effort that without
committed & conscientious cooperation, any data migration will
be needlessly delayed. Up to 30 hours of Licensor effort are
included with each purchasedlauthorized data migration. To
date most previous data migrations have been fully
accommodated within those 30 hours. However, when
Licensee staff or contractors delay migration and/or add
requirements for customized data modification/cleanup not
part of the approved specifications, such additional services
will be provided post approval and billed either on a time and
materials basis (at the rate in effect at the time of senrice-
CurrenNy $195/hour) or via a fixed price quote. Licensee
accepts full responsibility to provide:
a. For each licensed! software product a designated
contact who has been directed by management to devote time
to this project as a high priority, is intimately familiar with the
existing data/software/operations and has been empowered to
make decisions regarding implementation, configuration and
forms design.
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Agreement No. 2774H
PROGRESSIVE S .;UTIONSs
PSI -Hosted
b. Licensor with one balance calculation (or one balance due
amount) for all accounts with non -zero balances that Licensee
desires to migrate. (Experience migrating other systems has
taught us that many other systems have more than one way to
calculate a 'Prue"balance which may or may not correlate with
historical financial transactions.)
c. Complete and consolidated migration data to Licensor
transmitted in their entirety at one time in a consistent
computer readable format (with understandable field labels
which clearly identify the field contents). Unless otherwise
mutually agreed in writing, data will be transferred as is without
manipulation or alteration.
d. Notification to Licensor that Licensee's migrated data is either
available or has been transmitted to Licensor.
e. Functional remote desktop sharing as described in the "Most
Cost Effective Access" below which may be initiated by
Licensee's designated staff members at their workstation at
least until the go live date and for the duration of any
approved customization projects. This functionality is
essential to facilitate efficient review of the data by Licensee
and to provide instruction on the Licensed software by
Licensor.
f. Review of the migrated data and notification to Licensor in
writing of any dataiconfiguration issues relating to each V data
migration no later than either: 1) 30 days (or less if specified
otherwise in an attached Scope of Work) from the day Licensor
has notified Licensee that the 15r migrated data became
available for Licensee review or 2) Licensee prior to the go live
date provides Licensor with a written acknowledgment that
Licensee has completed their review and accepted the data as
migrated by Licensor.
g. Prompt verification that requested corrections have been
completed to Licensee's written specifications or automatic
acceptance of any corrections absent written documentation to
the contrary 7 days from the date Licensee was notified of the
availability of any specific correction.
If after the 30 day review period (or receipt of written
acceptance by Licensor) Licensee requests program or data
changes that could have been requested during review of the
1n migrated data, upon mutual written agreement Licensor
shall respond and correct such issues on a time and materials
basis. Licensee agrees that addition of calculations (especially
balance), form revisions, migration data (such as additional
records or tables not originally provided) or changes to the
format of the migration data may result in a delay of product
implementation and shall result in additional time and materials
charges. In the unlikely event any previously reported issues
resurface, such reoccurrence(s) shall be corrected without
additional charge.
8. Licensee agrees that all dead rated workstations shall meet at
least the minimum requirements (specified via the
htf .Zl ro ressivesolutidns,com link in the looter referred to as
'RequirementsExhibit B) at the time of the initial
implementation in order to accommodate the version of the
application initially installed.
9. All implementations shall automatically receive software
corrections. Software corrections are defined as: Licensor
software updates as well as specified operating system
patches. Failure to maintain the specified published
requirements shall relieve Licensor from any and all 'Software
Maintenance' responsibilities relating to any Licensee reported
ADDENDUM: LICENSEE'S RIGHTS,
OBLIGATIONS & REPRESENTATIONS
issue(s) that the Licensor correction(s) was/were offered to
address. It is highly recommended that Licensee staff regularly
attend PSI annual user training/conferences 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 a PSI
user conference at least every 5 years.
10. Licensee may use remote assistance technologies to share an
active session without obtaining any additional licenses for the
software. Remote assistance allows a support technician to
connect directly to a user's computer, usually to correct
problems.
11. Licensee understands and acknowledges that intemetlnetwork
performance 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 network/software performance. Such network
evaluation shall utilize "Network Sniffer" or equivalent tools to
facilitate generation of quantitative results. Licensee agrees to
request & incorporate Licensor's recommendations in the
network evaluation 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) istare network
related will be billed at the rates in effect at the time of service.
12. Licensee has no obligation to give Licensor any suggestions,
comments or other feedback ("Feedback") relating to the
Licensed software. However, any Feedback Licensee
voluntarily provides may be used in Licensor Products,
marketing, related specifications and/or other documentation
(collectively, "Licensor Offerings") which in turn may be relied
upon by other third parties to develop their own products,
services or technology ("Third Party Products"). Accordingly, if
Licensee gives Licensor Feedback on any version of Materials
or Licensor Offerings to which they apply, Licensee agrees: (a)
Licensor may freely use, reproduce, license, distribute, and
otherwise commercialize Licensee's Feedback in any Licensor
Offering; (b) Licensee may also grant third parties, without
charge, only those patent rights necessary to enable Third
Party Products to use, implement or interface with any specific
parts of a Licensor Product that incorporate Licensee's
Feedback; and (c) Licensee will not give Licensor any
Feedback (i) that Licensee has reason to believe is subject to
any patent, copyright or other intellectual property claim or right
of any third party; or (ii) subject to license terms which seek to
require any Licensor Offering incorporating or derived from
such Feedback, or other Licensor intellectual property, to be
licensed to or otherwise shared with any third party.
13. While Licensor's software payment processing solutions are
designed to CISP (Cardholder Information Security Program)
& PCI (Payment Card industry Data Security Standard)
guidelines, Licensee understands that Licensor's PCl/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
Last Modified 10/1/2018 Page 2 of 3
Agreement No. 2774H
PROGRESSIVE SOLtd IONg "
PSI -Hosted
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 non -secured credit card
data nor configuring the system for the express purpose of
retaining non -secured private information. It Is Licensee's
responsibility to assure that all other 3rd party partners/vendors
as well as their own internal operations staff facilitates
compliance in their specific areas of process control.
14. Non-Interference/Non-Solicitation/'Trade Secrets': Each party
agrees that, during the period that Licensor is providing
services hereunder ("Services Period") and for a period of
twelve (12) months following the termination of such work
("Post Services Period"), neither party will, except with the
other party's priorwritten approval, directly or indirectly through
a third party, solicit, hire or contract with any employee, agent
or staff member of such other party (the Retained Party")
directly or indirectly for any pgsition where the to al and
ADDENDUM: LICENSEE'S RIGHTS,
OBLIGATIONS & REPRESENTATIONS
complete fulfillment of its duties would hkgly re uire 'the
Retain d Partto reveal make 'ud ment on or otherwise use
any confidential business information or trade secrets of
Licensor to which "the Retained Part had access (ago
internal a li ed software spa orl concepts).
If Licensee has breached the above restriction by retaining
(hiring orcontracting with) an individual in a position in or under
the direction of any department where one or more staff
members utilize Licensor's software, Licensee shall at
Licensor's sole option shall forfeit the above identified license
for use of Licensors software upon Licensors providing written
notification of said license termination to Licensee. Under no
circumstances shall any retained individual divulge Licensor
Trade Secrets'. Any damages paid under this clause shall only
be for breach of this non-interference/non-soliciation clause.
Such damages paid shall not waive any other remedies that
may exist under any other statute for misappropriation of
Licensors' Trade Secrets'.
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