CONTRACT 4535 Professional Services Agreement Agreement No. 4535
PROFESSIONAL SERVICES AGREEMENT
BETWEEN
THE CITY OF EL SEGUNDO AND
PROGRESSIVE TECHNOLOGY FEDERAL SYSTEMS,INC.
This AGREEMENT is entered into this 6th day of November, 2013, by and between the
CITY OF EL SEGUNDO, a municipal corporation and general law city ("CI'T'Y") and
Progressive Technology Federal Systems,Inc.,a Maryland corporation ("CONSULTANT').
1. CONSIDERATION.
A. As partial consideration,CONSULTANT agrees to perform the work listed in the
SCOPE OF SERVICES, below;
B. As additional consideration, CONSULTANT and CITY agree to abide by the
terms and conditions contained in this Agreement;
C. As additional consideration, CITY agrees to pay CONSULTANT a sum not to
exceed nineteen thousand, eighteen dollars and eighty cents ($19,01$.80) for
CONSULTANT's services. CITY may modify this amount as set forth below.
Unless otherwise specified by written amendment to this Agreement, CITY will
pay this sum as specified in the attached Exhibit "A," which is incorporated by
reference,
2. SCOPE OF SERVICES.
A. CONSULTANT will perform services listed in the attached Exhibit"B," which is
incorporated by reference.
B. CONSULTANT will, in a professional manner,furnish all of the labor, technical,
administrative, professional and other personnel, all supplies and materials,
equipment, prir.ting, vehicles, transportation, office space and facilities, arkd all
tests, testing and analyses, calculation, and all other means whatsoever, except as
herein otherwise expressly specified to be furnished by CITY,necessary or proper
to perform and complete the work and provide the professional services required
of CONSULTANT by this Agreement.
3. PERFORMANCE STANDARDS. While performing this Agreement, CONSULTANT
will use the appropriate generally accepted professional standards of practice existing at the time
of performance utilized by persons engaged in providing similar services. CITY will
continuously monitor CONSULTANT's services, CITY will notify CONSULTANT of any
deficiencies and CONSULTANT will have fifteen (15)days after such notification to cure any
shortcomings to CITY's satisfaction. Costs associated with curing the deficiencies will be borne
by CONSULTANT.
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4, PAYMENTS, For CITY to pay CONSULTANT as specified by this Agreement,
CONSULTANT must submit a detailed invoice to CITY which lists the hours worked and
hourly rates for each personnel category and reimbursable costs (all as set forth in Exhibit"A")
the tasks perforted, the percentage of the task completed during the billing period, the
cumulative percentage completed for each task, the total cost of that work during the preceding
billing month and a cumulative cash flow curve showing projected and actual expenditures
versus time to date.
3. 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.
6. ADDITIONAL WORK.
A. CITY's city manager("Manager')may determine, at the Manager's sole
discretion; that CONSULTANT must perform additional work("Additional
Work") to complete the Scope of Work. If Additional Work is needed, the
Manager will Dive written authorization to CONSULTANT to perform such
Additional Work.
B. If CONSULTANT believes Additional Work is needed to complete the Scope of
Work, CONSULTANT will provide the Manager with written notification that
contains a specific description of the proposed Additional Work, reasons for such
Additional Work, and a detailed proposal regarding cost.
C. Payments over$19,018.80 for Additional Work must be approved by CITY's city
council. All Additional Work will be subject to all other terms and provisions of
this Agreement.
7. FAMILIARITY WITH WORK.
A. By executing this Agreement,CONSULTANT agrees that it has:
i. Carefully investigated and considered the scope of services to be
performed, t
ii. Carefully considered how the services should be performed, and
iii. Understands the facilities, difficulties. and restrictions attending
performance of the services under this Agreement.
B. If services involve work upon any site, CONSULTANT agrees that
CONSULTANT has or will investigate the site and is or will be fully acquainted
with the conditions there existing, before commencing the services hereunder.
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Agreement No. 4535
Should CONSULTANT discover any latent or unknown conditions that may
materially affect the performance of the services, CONSULTANT will
immediately inform CITY of such fact and will not proceed except at
CONSULTANT's own risk until written instructions are received from CITY.
&. TERM. The term of this Agreement will be for one (1) year from the date of the last
signature affixed to this Agreement. 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 15,
9. TIME FOR PERFORMANCE.
A. CONSULTANT will not perform.any work under this Agreement until:
i. CONSULTANT furnishes proof of insurance as required under Section 23
of this Agreement: and
ii. CITY gives CONSULTANT a written notice to proceed.
B. Should CONSULTANT begin work on any phase in advance of receiving written
authorization to proceed, any such professional services are at CONSULTANT's
own risk.
14. 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:Budget;
B. Exhibit B: Scope of Work;and
C. Exhibit C: Maintenance and Support.
11. CHANGES. CITY may order changes in the services within the general scope of this
Agreement, consisting of additions. deletions, or other revisions, and the contract sum and the
contract time will be adjusted accordingly. All such changes must be authorized in writing,
executed by CONSULTANT and CITY. The cost or credit to CITY resulting from changes in
the services will be determined in accordance with written agreement between the parties.
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Agreement No. 4535
12. TAXPAYER IDENTIFICATION NUMBER. CONSULTANT will provide CITY with a
Taxpayer Identification Number.
13. PERMITS AND LICENSES. CONSULTANT, at its sole expense, will obtain and
maintain during the terra of this Agreement, all necessary permits, licenses, and certificates that
may be required in connection with the performance of services under this Agreement.
14.WAIVER. CITY's review or acceptance of. or payment for, wort: product prepared by
CONSULTANT under this Agreement will not be construed to operate as a waiver of any rights
CITY may have under this Agreement or of any cause of action arising from CONSULTANT's
performance. 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 breach of the same or any
other term, covenant,or condition contained in this Agreement, whether of the same or different
character_
1S. TERMINATION.
A. Except as otherwise provided, CITY may terminate this Agreement at any time
with or without cause.
B. CONSULTANT may terminate this Agreement at any time upon thirty (30 days
written notice.
C, Upon receiving a termination notice, CONSULTANT will immediately cease
performance under this Agreement unless otherwise provided in the termination
notice. Except as otherwise provided in the termination notice,any additional
work performed by CONSULTANT after receiving a termination notice will be
performed at CONSULTANT" own cost;CITY will not be obligated to
compensate CONSULTANT for such work.
D. Should termination occur, ail finished or unfinished documents, data, studies,
surveys,drawings.maps, reports and other materials prepared by CONSULTANT
will, at CITY's option, become CITY's property, and CONSULTANT will
receive just and equitable compensation for any work satisfactorily completed up
to the effective date of notice of termination, not to exceed the total costs under
Section I(C).
E. Should the Agreement be terminated pursuant to this Section, CITY may procure
on its own terms services similar to those terminated.
F. By executing this document. CONSULTANT waives any and all claims for
damages that might otherwise arise from CITY's termination under this Section.
16. OWNERSHIP OF DOCUMENTS. All documents, data. studies, drawings, maps, models,
photographs and reports prepared by CONSULTANT under this Agreement are CITY's
property. CONSULTANT may retain copies of said documents and materials as desired, but
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will deliver all original materials to CITY upon CITY's written notice. CITY agrees that use of
CONSULTANT's completed work product, for purposes other than identified in this Agreement,
or use of incomplete work product,is at CITY's own risk.
17.PUBLICATION OF DOCUMENTS. Except as necessary for performance of service
under this Agreement, no copies, sketches, or graphs of materials, including graphic art work,
prepared pursuant to this Agreement. will be released by CONSULTANT to any other person or
public CITY without CITY's prior written. approval. All press releases, including graphic
display information to be published in newspapers or magazines, will be approved and
distributed solely by CITY,unless otherwise provided by written agreement between the parties.
18.INDEMNIFICATION.
A. CONSULTANT agrees to the following-
i. 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.
ii. 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. .mould 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
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Agreement No. 4535
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 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.
CONSULTANT's liability to CITY for any claims, liabilities, actions or damages arising out of
or relating to this Agreement,howsoever caused and regardless of the legal theory asserted,
including breach of contract or warranty,tort,strict liability, statutory liability or otherwise,shall
not, in the aggregate, $500,000 or the proceeds received from an insurance policy, whichever is
less. In no event shall CONSULTANT be liable to the CITY for any punitive, exemplary,
special,indirect, incidental or consequential damages (including, but not limited to, lost profits,
lost revenues, lost business opportunities, loss of use or equipment down time, and loss of or
corruption to data) arising out of or relating to this Agreement, regardless of the legal theory
under which such damages are sought and even if the Parties have been advised of the possibility
of such damages or loss.
19.ASSIGNABILITY. This Agreement is for CONSULTANT's professional services.
CONSULTANT's attempts to assign the benefits or burdens of this Agreement without CITY's
written approval are prohibited and will be null and void.
20.INDEPENDENT CONTRACTOR. CITY and CONSULTANT agree that
CONSULTANT will act as an independent contractor and will have control of all work and the
manner in which is it performed, CONSULTANT will be free to contract for similar se.;ice to
be performed for other employers while under contract with CITY. 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. Any provision in this Agreement that
may appear to give CITY the right to direct CONSULTANT as to the details of doing the work-
or to exercise a measure of control over the work means that CONSULTANT will follow the
direction of the CITY as to end results of the work only.
21. AUDIT OF RECORDS. CONSULTANT will maintain full and accurate records with
respect to all services and matters covered under this Agreement. CITY will have free access at
all reasonable times to such records, and the right to examine and audit the same at CITY's sole
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Agreement No. 4535
cost and to make transcript therefrom, and to inspect all program data, documents, proceedings
and activities. CONSULTANT will retain such financial and program service records for at least
three (3) years after termination or final payment under this Agreement.
22. 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:
Type of Insurance Limits
Commercial general liability: $1,000,000
Professional Liability $1,000,000
Business automobile liability $1,0007000
Workers compensation Statutory requirement
B, Commercial.general liability insurance will meet or exceed the requirements of
ISO-CGL Form No. CG 00 01 11 85 or 88. 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 he 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.
�..
I IWILI JLvl Aal liab11AL�evYLrag.;will bG on au"ol.l.uil Giilrc baJ3s"if ow-11 4v YGrasu
is available, or on a"claims made"basis if not available. When coverage is
provided on a "claims made basis,"CONSULTANT will continue to renew the
insurance for a period of three(3) years after this Agreement expires or is
terminated. Such 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. Automobile coverage will be written on ISO Business Auto Coverage Form CA
00 0106 92, including symbol I (Any Auto).
E. CONSULTANT will furnish to CITY duly authenticated Certificates of Insurance
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evidencing maintenance of the insurance required under this Agreement 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."
F, 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 pursuant to Section 15„
23. USE OF SUBCONTRACTORS. CONSULTANT must obtain CITY's prior written
approval to use any consultants while performing any portion of this Agreement, and such
approval will not be unreasonably withheld. Such approval must approve of the proposed
consultant. The consultants listed in Exhibit"B"are hereby approved.
24. INCIDENTAL TASKS. CONSULTANT will meet with CITY monthly to provide the
status on the project, which will include a schedule update and a short narrative description of
progress during the past month for each major task, a description of the work remaining and a
description of the work to be done before the next schedule update.
25. NOTICES. All communications to either party by the other party will be deemed nrade
when received by such party at its respective name and address as follows:
If to CONSULTANT: If to CITY:
PTFS City of El Segundo
11501 Huff Court I l l W.Mariposa Avenue
North Bethesda,MD 20895 El Segundo,CA
Attention: Lynn Clark Attention:Mark Herbert
Any such written communications by mail will be conclusively deemed to have been received by
the addressee upon deposit thereof in the United States Mail, postage prepaid and properly
addressed as noted above. 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.
26. CONFLICT OF INTEREST. CONSULTANT will comply with all conflict of interest
laws and regulations including,without limitation,CITY's conflict of interest regulations.
27.SOLICITATION. CONSULTANT maintains and warrants that it has not employed nor
retained any company or person,other than CONSULTANT's bona ride employee, to solicit or
secure this Agreement. Further, CONSULTANT warrants that it has not paid nor has it agreed
to pay any company or person,other than CONSULTANT's bona fide employee, any fee,
commission,percentage, brokerage fee, gift or other consideration contingent upon or resulting
from the award or making of this Agreement. Should CONSULTANT breach or violate this
warranty, CITY may rescind this Agreement without liability.
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Agreement No. 4535
28. THIRD PARTY BENEFICIARIES. This Agreement and every provision herein is
Qenerally for the exclusive benefit of CONSULTANT and CITY and not for the benefit of any
other party. There will be no incidental or other beneficiaries of any of CONSULTANT's or
CITY's obligations under this Agreement.
29. INTERPRETATION. This Agreement was drafted in, and will be construed in accordance
with the laws of the State of California, and exclusive venue for any action involving this
agreement will be in Los Angeles County. 4
30. COMPLIANCE WITH LAW. CONSULTANT agrees to comply with all federal, state,
and local laws applicable to this Agreement.
31. ENTIRE AGREEMENT. This Agreement, and its Attachments, sets forth the entire
understanding of the parties. There are no other understandings, terms or other agreements
expressed or implied, oral or written. There are three (3) Attachments to this Agreement. This
Agreement will bind and inure to the benefit of the parties to this Agreement and any subsequent
successors and assigns.
32. RULES OF CONSTRUCTION. Each Party had the opportunity to independently review
this Agreement with legal counsel. Accordingly, this Agreement will be construed simply,as a
whole, and in accordance with its fair meaning;it will not be interpreted strictly for or against
either Party.
33.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.
34. AUTHORITY/MODIFICATION. The Parties represent and wart-ant that all necessary
action has been taken by the Parties to authorize the undersigned to execute this Agreement and to
engage in the actions described herein. This Agreement may be modified by written amendment.
CITY's executive manager.or designee,may execute any such amendtnent on'behalf of CITY.
35.ACCEPTANCE OF FACSIMILE SIGNATURES. 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
facsimile transmission. Such facsimile signature will be treated in all respects as having the
same effect as an original signature.
36. CAPTIONS. The captions of the paragraphs of this Agreement are for convenience of
reference only and will not affect the interpretation of this Agreement.
37, TIME IS OF ESSENCE. Time is of the essence for each and every provision of this
Agreement.
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Agreement No. 4535
38. 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.
39. STATEMENT OF EXPERIENCE. By executing this Agreement, CONSULTANT
represents that it has demonstrated trustworthiness and possesses the quality, fitness and capacity
to perform the Agreement in a manner satisfactory to CITY. CONSULTANT represents that its
financial resources, surety and insurance experience, service experience, completion ability,
personnel, current workload, experience in dealing with private consultants, 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 CITY.
[Signatures on next pagel
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Agreement No. 4535
IN WITNESS WHEREOF the pardes hereto have executed this, contract the day and year
first hereinabove written.
,,
1,5 'GUNI)Or
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017 L ,J� Prog Ovejhnolo I
Greg -perater AntlYon J. Berkant
C 4inager Chief Finaticial Officer
ATYEII�T
Taxpayer ID No. 52-1942959
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APPROVED A, r5, �iv%,rvr-�2
MARK D. 1-1,
By:
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Agreement No. 4535
Exhibit A
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002 1 FnVesslttrtal Seer tnelalltxion Servk4s,PTFS L 32.350,8117 S2.30.00
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00 t Trahng 83ay flues Training Session via Wabex:User and Edit $2,35000 52.354.
004 1 Tfsviing Gray tlser T'r"Session via Mom Load arA $2.350,t'sl $2,354.00
Adminastrative
006 1 M&S ist year Maintenance ana Sappwl-Rich kidudes u (as mailable)and $2,164.38 S2,154.38:
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2 oy VpkAlAo Pedera,S1taa and Local taxes wig be an addhbraal cost app4lad t1 the inwak,,.
Agreement No. 4535
Exhibit B
END USER SOFTWARE LICENSE AGREEIMENT
This End User Software License Agreement (the "Agreement") is entered into as of this 22nd
day of Gciober 2012 by and between Progressive Technology Federal Systems, lne. ("PTFS"), a
Maryland corporation with its principal office located at 11501 Huff Court, North Bethesda, ;Maryland
2 0895, and Oty of El Scoundo ("Licensee"), a municipal corporation and general Imv city with its
principal office located at 350 Main Street, El Segundo, CA 911245. PTFS and Licensee are also
sometimes referred to herein as a"Party"or collectively as the"Parties".
RECITAL
1_ PTFS has developed and owns certain software applications and utilities related to the
digitization and retrieval of archived documents and other materials:and
Il. Licensee wants to license certain software from PTFS.and PTFS is willing to license the
Software to Licensee,upon the terms and conditions set forth below.
NOW, THEREFORE, in consideration for the Recital, which is an integral part of this Agreement, and
for other good and valuable consideration the receipt and sufficiency of which are hereby
acknowledged,the Parties intending to be legally bound agree as follows:
I DEFINITIONS
The following terms shall have the indicated meaning=
"Critical Error" means a material defect in the Software that causes the Software to fail to operate
substantially in accordance with the Specifications and materially prevents or impairs use of
the Software by Licensee.
"Documentation" means the written or electronic materials prepared by PTFS for the internal use
of Licensee, describing the operation and functionality of the Software, all rights to which
shall remain exclusively with PTFS.
"Effective Date" means the date first set forth above.
"Quotation" means the written proposal of PTFS that contains the pricing, Maximum Records
and other specifics regarding installation,use and support of the Software.
"Software" means PTFS' ArchivalWare computer program provided by PTFS to Licensee under
the terms of this Agreement.
"Specifications" means the description of the Software functionality contained in the materials
provided by PTFS that accompany delivery of the Software to Licensee.
"User" means each employee, contractor or other individual employed or engaged to provide
services by Licensee and authorized to log onto Licensee's system or otherwise access the
Software.
Agreement No. 4535
"Records" means the digital files which are indexed by the Software and assigned a unique
document identification number and which include a unique metadata record, as determined
by PTFS with Licensee input.
"Maximum Records" means the total number of records permitted to be active in the Software
under the License granted. If the number of active records exceeds the Maximum Records,
the License and applicable fees shall increase to the next Maximum Records level as defined
in the Quotation. Maximum Records does not include Records which have been permanently
removed from the Software.
"Single Server"means a single board computer system.
2 GRANT OF LICENSE
2.I The License. PTFS hereby grants to Licensee, and Licensee hereby accepts a perpetual
unless terminated in accordance with Section 6 of this Agreement, non-exclusive and
non-assignable right under this Agreement for its internal use of the Software and
Documentation without the right of sublicense, sale, assignment or other distribution in
any manner and subject to the terms, conditions and restrictions of this Agreement (the
"License"). Licensee shall have no right or interest in the Software, Documentation or
any other property of PTFS except as expressly set forth in this Agreement,
2? Limitations on Use.
2.2.1 Proprierail, hfurerials. Licensee acknowledges that the Software and
Documentation embody valuable intellectual property owned exclusively by PTFS.
Licensee shall not use, modify, duplicate, create derivative works of, sell, sublicense or
otherwise transfer, convey or make any other commercial use of the Software or
Documentation,or any portion or derivative works thereof, or create any software or any
products that in any manner are based on or relate to the Software and Documentation,
other than as expressly permitted under this Agreement.
2.2.2 Restrictions. The Software and Documentation shall be used solely for
Licensee's internal business operation on the specific Single Server and only for the
Maximum Records permitted hereunder. Licensee shall not: (i) permit any other party,
including but not limited to its affiliates, to use the Software or Documentation for any
reason, without PTFS' prior express written consent; (ii) use the Software or
Documentation in the operation of a service agency,as an application service provider or
in any similar capacity unless expressly authorized by PTFS; (iii) use the Software or
Documentation for any purpose not expressly described in the Specifications, it being
understood that the Software is not designed for any other function or licensed for any
such use; (iv) engage in or allow the assignment, sublicensing, sharing, publishing,
distribution, leasing or other use or conveyance of the Software or Documentation or any
portion thereof;or(v)permit the Software andlor Documentation to be used by other than
the permitted or licensed use,or for more than the Maximum Records.
12.3 Reverse Engineering atul Modifications. Licensee shall not,nor permit any other
person or entity to disassemble, reverse engineer, de-compile or attempt to derive the
source code of the Software or any portion thereof. Licensee shall have no right to
independently modify or alter any portion of the Software in any manner for any reason.
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Agreement No. 4535
23 License Limitations, The License shall be limited to the specific Single Server and the
Maximum Records in that Server,and subject to any and all other limitations set forth in
the Quotation and this Agreement. In the event that the number of active Records in the
Software exceeds the Quotation and Software configuration limit, Licensee shall pay
additional License Fees, as applicable. In the event that additional Servers are required;
Licensee shall pay additional License Fees for additional Licenses for each additional
Server. All additional License Fees shall be based on PTFS standard rates, Quotation
terms and the terms of this Agreement, subject to modification, with or without notice,
from time to time by PTFS in its sole discretion.
2A System Use. It is understood and agreed that the License is for the Software to be
installed and run on a single server, with single or multi-core processors as defined in the
Specifications. Any installation or use of the Software in any secondary, peripheral,
duplicate, additional or other server or distributed or virtual environment shall require
payment by Licensee of an additional License Fee. Licensee is permitted to make a
reasonable number of copies of the Software solely for back up purposes.
2.5 Proprietary Notices. Licensee shall not remove, obliterate, conceal or modify in any
manner any copyright, trademark, servicemark, confidentiality or other proprietary
notice, legend, information or marking appearing on the Software or Documentation or
output generated from the Software. Licensee shall reproduce and include all such
notices, legends, information and marks on each copy of the Software and
Documentation permitted hereunder.
2.6 Hardware and Other Software. Licensee acknowledges that other products such as
operating systems, database applications and programs and other third party software, as
well as hardware with adequate capacity and specifications, will be necessary For the
proper and efficient operation of the Software in accordance with the Specifications.
Except for third party software licensed by PTFS and incorporated in and sublicensed to
Licensee in connection with, the Software, Licensee shall be solely responsible for
obtaining, installing, operating and maintaining all such products at Licensee's expense.
Licensee's failure to adequately obtain. install, operate and maintain such products in
compliance with PTFS Specifications and Documents shall release PTFS from any
obligation regarding compliance with the Specifications and maintenance obligations,
and void all representations and warranties by PTFS under this Agreement. The Parties
acknowledge that PTFS will rely upon Licensee to procure, setup, implement and
otherwise make operational the necessary compliant hardware, operating system,
software, and network connectivity. Licensee shall install and configure the hardware
and system software prior to installation of the Software. PTFS` obligations under this
Agreement are based on the written representations made by Licensee with respect to its
hardware, software and system configuration.
3 LICENSE FEE
3.1 License fee and annual service and maintenance fees are due and payable according to
the terms and conditions of the Quotation. Unless changes in License fee are negotiated
and implemented with the mutual consent of the Parties to accommodate additional
Maximum Records or additional Servers, such changes shall be based on PTFS standard
rates then in effect.
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Agreement No. 4535
4 INSTALLATION,ACCEPTANCE AND SUPPORT
4.1 Termination of Sgpport. Notwithstanding any provision of this Agreement to the
contrary, neither PTFS nor any direct seller of the Software to Licensee shall have any
obligation to provide technical support, maintenance, Maintenance Modifications,
Critical Error correction or any other services as a result of, following, or in connection
with (i) any modification of the Software or Documentation by anyone other than PTFS
or its authorized representatives; (ii)any anomaly or other defect, error or malfunction in
the hardware, system, communications, third party software used by Licensee or any
other aspect of Licensee's business operation; or (iii.) Licensee's default under any
provision of this Agreement.
S OWNERSHIP
5A PTFS Ownership. All right, title and interest in and to the Software and Documentation,
and all derivatives, modifications, enhancements and other products based on, resulting
from or otherwise developed, created or produced in connection with the Software and
Documentation shall remain exclusively with PTFS. In no event shall Licensee be
deemed to have acquired any interest therein, other than the License for internal use as
expressly provided under the terms of this Agreement
5.2 Cooperation. Licensee shall fully cooperate and take all appropriate action as reasonably
required to prohibit and prevent the unauthorized use of the Software and
Documentation, and provide all reasonable assistance to PTFS in the enforcement of its
proprietary rights. PTFS shall have the right, upon reasonable advance notice,to inspect
Licensee's records and facilities with respect to the use of the Software and
Documentation, and to verify compliance with all obligations,restrictions and provisions
of this Agreement.
6 TERMINATION
6.1 Termination. The License shall be deemed revoked, and all rights of Licensee under this
Agreement shall be terminated, upon the occurrence of any of the following events:
Licensee fails to comply in any material manner with all of the terms, conditions,
restrictions and obligations of this Agreement which failure is not cDrnpletely remedied
by Licensee within ten(10)business days of receipt of notice from PTFS;
6.2 Obligations Upon Termination. Within thirty (30) business days of the termination of
this Agreement for any reason, Licensee shall (i) destroy the Software, Documentation
and all copies thereof; (ii)erase the Software and Documentation from its system and all
memory and back-up storage;and (iii)deliver to PTFS written certification,signed by an
authorized executive officer, that the foregoing actions have been taken and that
Licensee, its contractors, affiliates and all others with whom it does business have not
retained the Software, Documentation, or any copies thereof, in whole or in part in any
form. From and after the termination of this Agreement, Licensee shall have no further
right to use the Software or Documentation for any reason and all obligations of PTFS
shall cease. The termination or expiration of this Agreement shall not relieve Licensee
from its obligations to pay any sums remaining due hereunder. The Parties' respective
rights,obligations and duties with regard to publicity, proprietary rights,indemnification,
confidentiality, limitation of liability,export regulation, and dispute resolution,as well as
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Agreement No. 4535
rights, obligations and duties which by their nature extend beyond the termination or
expiration of this Agreement shall survive any termination or expiration.
6.3 Other Remedies. In the event of any breach of this Agreement by Licensee,PTFS may,in
addition to termination of this Agreement, seek all remedies available under law or at
equity and recover from Licensee all costs and expenses, including but not limited to,
court costs and reasonable attorneys and expert witness fees,all costs of investigation and
all other damages and expenses resulting directly or indirectly from such breach.
7 RESTRICTIONS
7.1 Export Restrictions. Neither Party shall export,directly or indirectly, the Software or any
portion thereof,or any other technical data or materials acquired under this Agreement or
the direct product thereof, to any country for which the United States Government or any
agency at the time of export requires an export license or other government approval,
without first obtaining such license or approval. With respect to any export transactions
under this Agreement, both Parties will cooperate in any reasonable manner to effect
compliance with all applicable export regulations.
8 WARRANTIES AND LIMITATIONS
8.1 Licensee's Benefit. Any and all warranties made by PTFS under this Agreement are for
the sole and exclusive benefit of Licensee and may not be transferred or assigned by
Licensee for any reason.
8.2 Limited Warranty. PTFS represents and warrants that it holds exclusive ownership in
and to the Software and Documentation and has the right to grant the License under the
terms of this Agreement and that the Software will operate in substantial conformity with
the Specifications for ninety(90)days after its delivery.
8.3 DISCLAIMER. EXCEPT FOR THE WARRANTY SET FORTH ABOVE, THE
SOFTWARE AND DOCUMENTATION ARE PROVIDED "AS IS" WITH ALI.
FAULTS, AND PTFS MAKES NO ADDITIONAL EXPRESS OR IMPLIED
WARRANTIES OF ANY KIND. INCLUDING WITHOUT LIMITATION, ANY
WARRANTY OF MERCHANTABILITY, QUALITY, ACCURACY, OR FITNESS
FOR A PAR1'IC ULAR PURPOSE,. PTFS HEREBY DISCLALMS WARRANTIES
THAT MAY BE IMPLIED FROM USAGE OF TRADE, COURSE OF DEALING OR
COURSE OF PERFORMANCE. THE RISK OF SATISFACTORY QUALITY,
PERFORMANCE,ACCURACY,AND EFFORT IS WITH LICENSEE,AND is TO BE
DETERMINED DURING THE TESTING PERIOD DESCRIBED ABOVE AND NOT
THEREAFTER. PTFS DOES NOT WARRANT THAT THE SOFTWARE WILL
OPERATE WITHOUT INTERRUPTION OR BE ERROR FREE.
8.4 THE PROCEEDS RECEIVED UNDER AN INSURANCE POLICY THAT COVERS
SUCH DAMAGES.
8.5 LIMITATION OF LIABILITY FOR CONSEQUENTIAL DAMAGES. IN NO EVENT
SHALL PTFS BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, OR
CONSEQUENTTIAL DAMAGES, OR FOR ANY LOSS OF PROFITS, LOSS OF
REVENUES, LOSS OF DATA, LOSS OF USE, OR ANY OTHER ECONOMIC
DISADVANTAGE OR COST INCURRED BY LICENSEE UNDER ANY THEORY
OF LIABILITY, WHETHER IN AN ACTION IN CONTRACT, STRICT LIABILITY,
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Agreement No. 4535
TORT (IN'CLUDING NEGLIGENCE) OR OTHER LEGAL OR EQUITABLE
THEORY, REGARDLESS OF WHETHER OR NOT SUCH DAMAGES WERE
FORESEEABLE OR ANTICIPATED. LN NO EVENT WILL PTFS BE SUBJECT TO
OR LIABLE FOR ANY PUNITIVE OR EXEMPLARY DAMAGES.
8.6 No Further Changes. PTFS' warranty as set forth above will not be enlarged, diminished
or affected by and no liability shall arise out of PTFS' rendering of technical advice or
service in connection with the Softwtu-e or Documentation. No change in the warranty
provisions above shall be effective unless in writing signed by PTFS' chief executive
officer.
8.7 Representations and Warranties of Licensee. Licensee represents and warrants to PTFS
that (i) this Agreement has been validly executed and delivered by Licensee and
constitutes a valid and binding obligation of Licensee enforceable in accordance with its
terms; (ii) Licensee has all requisite corporate and organization power and authority to
enter into this Agreement and perfionn the obligations on its part required hereunder, and
that the execution, delivery and performance of this Agreement have been duly
authorized by all requisite corporate and organizational action; (iii) Licensee's execution
and delivery of this Agreement and compliance with all terms hereof will not conflict
with or result in a breach of, or require the consent of any third party under any license,
contract or other instrument to which Licensee or its property is subject; and(iv)there are
no pending or threatened actions or other legal or administrative proceedings that would
have a material adverse affect on Licensee's right or ability to perform its obligations
under this Agreement.
8.8 Limitations on Indemnity. PTFS shall have no obligation under this Section for any
claim that results directly or indirectly from(i) any modification, alteration, or change to
the Software or Documentation by Licensee or any other party other than PTFS and its
authorized agents; (ii)PTFS's use of accepted industry standards or protocols; (iii) use of
the Software in a manner not expressly authorized by PTFS or inconsistent with the
Software's documentation or provisions of this Agreement; (iv) use of the Software in
combination with other products if the Software standing alone would not have been
infringing; (v) the unlicensed or unauthorized use or distribution of the Software by
Licensee; (vi) use of a superseded release of the Software where such release is the
greater of one (1) year old or two major releases (the then current release and the prior
release) behind or an altered release of the Software if such infringement would have
been avoided by the use of a current unaltered release of the Software; or (vii) any
combination of the forgoing.
8.9 Replacement. In the event the use of the Software and Documentation_ as delivered to
Licensee is, or in PTFS's sole discretion may reasonably be expected to be, subieet to a
claim under this Section 9, then PTFS may, at its sole option and expense (t) procure for
Licensee the right to continue use of such licensed materials as set forth in this
Agreement; (ii) replace or modify such licensed materials to make its use non-infringing,
while maintaining comparable functionality; or (iii) buy back the Software at the
Licensee's net book value.
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Agreement No. 4535
8.10 Notice and Assistance. An indemnifying Party shall be obligated to provide
indemnification hereunder if the indemnified Party (i) notifies the indemnifying Party in
writing of any claim within thirty (30) days of first becoming aware of such claim: (ii)
permits the indemnifying Party to have sole control of the defense and/or settlement; and
(iii) provides all available information, assistance and authority at the indemnifying
Party's reasonable expense. The indemnified Party,at its expense,may participate in, but
not control, the defense or settlement. If the indemnifying Party fails to assume the
defense of such claim within thirty (30) days after receipt of notice of such claim, the
indemnified Party will (upon delivering notice to the indemnifying Party) have the right
to undertake, at the indemnifying Party's cost and expense, the defense, compromise or
settlement of such claim,provided however, that such claim shall not be compromised or
settled without the prior written consent of the indemnifying Party, which consent shall
not be unreasonably withheld.conditioned or delayed_ In the event the indemnified Party
assumes the defense of the claim,the indemnified Party will keep the indemnifying Party
timely informed of the progress of any such defense,compromise or settlement.
10.12 The attached ArchivalWare Maintenance&Support Program summary is hereby
incorporated as part of this Agreement.
Compatibility and Technical Requirements
Software: ArchivalWare Version 4.3
Application Servers
!Boss 4.0.3 SP
Web Servers
IIS 5.0 and later,Apache 2.0 and later
Operating Systems
Windows 2008 Server Standard Edition,Windows 2000/2003 Server,Windows 2000 Advanced Server,
SUN Solaris 9& 10, RedHat 3 &4
Browsers
Internet Explorer 6 and later, Netscape Navigator 7.2 and later,Mozilla Firefox 2.0 and later
Databases
CIS SQL Server 200012005,Oracle 9i Release 2,Oracle I OG Release 2,MySQL 5.0 and later
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Agreement No. 4535
iyr'F-,S does not warrant that ArchivalWare Version 4.3 is or will tv compatible with any other software,
e0i'llponents used in place of the software components above. The use of any such other-software,
component shall release,P117 RS and its Reseller from any abligation rqarding,compliance with Ihe
Specifications and maintenance obligations, and v(,)id all represnentations and murandes,by P,rFS umler
this Agreenica All future ftnictionality and Software requi rame tits shal I be subject to VMS' prior
written apprmd,
Agreement No. 4535
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support mainterumce,and
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ArchivaWare knaMedgebase WhWh. IndWes dwurymAeftri and questions,is
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Technical support is available Monday- y,&30 am to T,excluding Federal
li d a r i a .lia.com, .. t rt ti orby phone at 1-88"54-8M x111,
Federal, Ali are deffned as the t
New Yeses Day
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Labor Day Columbus
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