CONTRACT 4547 Professional Services AgreementAgreement No. 4547
PROFESSIONAL SERVICES NGREEN414,NT
BETWEEN
THE CITY OF El, SEGUNDO AND
SEMS Technologies, LLC.
This AGREEMENT is entered into this 5"' (lay of December, 2013, by and between the
CITY OF EL SEGUNDO, a municipal corporation and general law city ("CITY") and SEMS
Teclinoloc,ies,, a Georgia LLC ("CONS UL:rANT"),
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I. CONSIDERATION.
A. As partial consideration, CONSULTANT agrees to perform the work listed in the
PROJECT PROPOSAL, below,
B. As additional consideration, CONSULTANT and CITY agree to abide by fl -le
tern -is and conditions contained in this Agreement;
C. As additional consideration, CITY agrees to pay CONSULTANT a SUrn not to
exceed fOUT thousand dollars ($4,000) for CONSULTAN'.1"s services. CI`l"Y may
modify this an-iount as set forth below. Unless otherwise specified by written
amendinent 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 13xhibit "A," which is
incorporated by reference.
B. CONSULTANT will, in a professional nianner, furnish all of the tabor, technical,
administrative, professional and other personnel, all supplies and materials,
Equipment, printing, vehicles, transportation, office space and facilities, and 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 sand 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 y accepted professional standards of practice existing at the time.
of performance utilized by persons engaged in providing similar services. CITY will
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continuously monitor CONSULTANT's services. CITY will notify CONSuurANTof 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 boric
by CONSULTANT.
Agreement No. 4547
4, PAYMENTS. For CITY to pay CONSuurANT as specified by this Agreement,
CONSULTANT must submit a detailed invoice to CITY which lists the hours worked and
hourly rates :Far each personnel category and reimbursable costs (all as set forth in Exhibit "A")
the tasks performed, 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 mooch and a cumulative cash flow curve showing projected and actual expenditures
versus tiryte to (late.
5. NON -APPROPRIATION OF FUNDS. Payments due and payable to CONSULTANT for
current, services are within the current budget and within an available, unexhausted and
i.iiienciii-nl-.)cred,.tl)l)ropriatioii of the CITY. In the event the CITY has not appropriated sufficient
funds for payment of CONSULTANT services hoyond the current: fiscal year, this Agreemelit
will cover only those costs incurred up to the conclusion of the current fiscal year.
ADDITIONAL WORK.
A. C'rFY's city manager ("Manager") may determine, at the Manager's sole
discretion, that CONSULTANTinust perforin additional work ("Additional
Work") to complete the Scope of Work. If Additional Work is needed, the
Manager will give 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.
C1. Payments over $ 4,000 for Additional Work must be approved by CITY's city
council. All Additional Work will be subject to all other tern -is and provisions of'
this Agreement.
7. FAMILIARITY WITH WORK.
A. By executing this Agreement, CONSULTANT agrees that it has:
Carefully investigated and considered the scope of services to be
performed;
ii. Carefully considered how the services should be performed; and
iii. Understands the facilities, difficulties, and restrictions attending
performance of the Services Linder 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 set -vices hereunder,
Agreement No. 4547
Should CONSULTANT discover any latent or unknown conditions that may
materially affect the performance of" the services, CONSULTANT will
immediately inrori-n CITY of' such fact and will not proceed except at
CONSuL'rANT's own risk until written instructions are received from CITY,
8. TERM. The term of this Agreement will be For one (1) year, This Agreement will
automatically renew, on an annual basis, on ills anniversary date Unless otherwise terminated.
Unless otherwise determined by written amendment between the parties, this Agreement will
terminate in the l"ollowing instances:
A. Completion of the work specified in, Exhibit"A',
13. Termination as stated in Section 15.
9. TIME FOR PERFORMANCE.
A. CONSULTANT will not perform any work under this Agreement Luitil:
CONSULTANT furnishes proof of -insurance as required Linder Section 23
ol'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
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authorization to proceed, any such professional services are at CONSULTANT's
own risk.
10. CONSISTENCY. In interpreting this Agreernent and resolving any ambiguities, the inain
body of this Agreement takes precedence over the attached Exhibit; this Agreerneritsupersedes
any conflicting provisions.
A. Exhibit A: Project Proposal
B. Exhibit B: Software as a Service (SaaS) Agreement
11. CHANGE S. CITY may order changes in the services within the general scope of this
Agreen-icrit:, 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.
12. TAXPAYER IDENTIFICATION NUMBER. CONSULTANT will provide CITY with a
I I I axpayer Identification Number.
11 PERMITS AND LICENSES. CONSULTANT, at its sole expense, will obtain and
maintain during; the term of this Agreement, all necessary permits, licenses, and certificates that
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may be required in connection with the performance of services under this Agreement.
Agreement No. 4547
14. WAIVER. CITY's review or acceptance of, or payment for, work product prepared by
CONS ULI'ANTurider this Agreement. will not be construed to operate as a Waiver of any rights
CITY may have under this Agreeinew, or of any cause of action arising from CONS U LTANT' s
performance. A waiver by CITY of any breach of any terry), covenant, or condition contained ill
this Agreement Will not: be deemed to be a waiver of any subsequent breach of the sande or any
other terni, covenant, or condition contained in this Aureement, whether of the same or differetit
cliaracter.
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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 tinic upon thirty (30 days
written notice.
C. LJpoii receiving a termination notice, CONSM,"FANTwill. immediately cease
performance udder this Agreeryient runless otherwise provided in the termination
notice, Except ,is otherwise provided in the termination notice, any additional
work performed by CONSULTANT after recei viii g a termination notice will be
performed at CONSULTAN't... own cost.; CITY will not be oblioated to
compensate CONSULTANT For such work.
D� Should termination OCCU, all finished or unfinished docunlelits, data, studies,
surveys, drawings, maps, reports and other materials prepared by CONS Lf LTANT
will, at CITY's option, become Cl'IY'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(Q.
E. Should the Agreement be terminated PLU'RIMIL to this Section, CITY may procure
on its owli terms services similar to those 11crininated.
R By executing this doMmeil(, CONSULTANT waives any and all claims for
damages that inight otherwise arise from CITY's termination under this Section,
16, OWNERSHIP OF DOCUMENTS. A] I documents, data, studies, drawings, maps, niodels,
photographs and reports prepared by CONSM,TANT under (his Ag0reement are CITY's
property. CONSUL'T'ANT may retain copies of said documeats, and materials its closired, but
will deliver all original materials to CITY upon CITY's Written notice. CITY agrees that use of
CONS ULTANT's completed work product, for purposes other than identified in this Agreement,
or use of incomplete work- product, is at CITY's owri risk.
17. PUBLICATION OF DOCUMENTS. Except as necessary for performance of service
under this, Agreement, no copies, sketches, or graphs of rnateriats, including graphic art work,
Agreement No. 4547
prepared PUPWant 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
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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 Pro �,ssional 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), Wuries, or
liability, arising out of this Agreement, or its performance, except for
such loss or damage arising from CITY's sole negligence or willful
misconduct. Should CITY be named in any suit, or should any claim
be brought against, it by stmt 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 indemniry CITY for any
judgment rendered against it, or any sums paid out in settlement or
otherwise.
iii. Intellectual Properly litfi-ingeineid. Notwithstanding any provision to
the contrary, CONSULTANT will, at its own expense, indemnify and
defend CITY against any claim that CONSULTANT's services or
work product furnished under this Agreement infringes a patent or
copyright in the United States or Puerto Rico. In such event,
CONSULTANT will pay all costs damages and attorney's fees that a
court finally awardsas a result of such claim. To qualify ['or such
defense and payment, CITY must (a) give CONSULTANT prompt
written notice of away such claim; amid (b) allow CONSULTANT to
control, and fully cooperate with CONSULTANT in the defense and
kill related settlement negotiations. CITY agrees that if the use of
CONSULTANT's services or work product becomes, or
Agreement No. 4547
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.
D, The requirements as to the types and limits of insurance coverage to be
maintained by CONSULTANT' as required by Section 22, and any approval of
said insurance by CITY, are not intended to and will not in any manner limit Or
qualify the liabilities and obligations otherwise assumed by CONSULTANT
Pursuant to this Agreement, including, without limitation, to the provisions
concerning indemnification.
19, ASSIGN ABluTy. This Agreeineirt is for CONS [JLTANT,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. INDE'PENDENT CONTRACTOR. CITY in d CONSLJLTANT a€aree that
CONWLTANT 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 service to
be performed for other employers while under contract with CITY, CONSULTANT is not an
agent or ernployee 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. CONSLJLTANT 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 Luider this Agreement. CITY will have free access ,it.
all reasonable times to such records, and the right to examine and audit the same and to rnal<e
transcript therefrom, and to inspect all program data, documents, proceedings and activities.
CONS M.TANT will retain such financial and program service records for at least three (3) years
after termination or final paVincrit under this Agreement.
22. INSURANCE,
A, Before commencing performance under this Agreement, and at all other tines 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:
Agreement No. 4547
ive of -Insurance Limits
Conii-ne,rcial general liability: $1,000,000
Professional Liability $1,000,000
Business automobile liability $1,000,000
Workers compensation Statutory requirement
B. Commercial general liability insurance will t-nect or exceed the requirernents 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
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endorsed to nairie CITY, its officials, and employees as "additional insureds"
under said insurance coverage and to state that Such insurance will be deemed
„primary" such that any other Insurance that may be carried by CITY will be
excess thereto. Such insui'ance will be on an "occurrence," not a "claims made,"
basis and will not be cancelable or sLit1ject, to reduction except upon thirty (30)
days prior written notice to CITY.
C. Professional liability coverage will be on an "occurrence basis" if such coverage
is available, or on a "claims made" basis if not available. When coverage is
provided on "claims made basis," CONSuurANT will continue to renew the
insurance fora period of three (3) years after (11iis Agreement expires or is
terminated. Such insurance, will have the same coverage and lit -nits as the policy
d-lat. 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, eiliployces or agents during the. timeCD
this Agreement was in effect,
DAutomobile coverage will be written on .ISO Business Auto Coverage Form CA
00 01 06 92, including symbol I (Any Auto).
E. CONSULTANT will furnish to CITY duly authenticated Certificates of Ills It n,111ce
evidencing maintenance of the insurance required Linder this Agreement and such
other evidence of insurance or copies of policies as may be reasonably required
by CITYfromtime to time. Insurance must be placed with insurers with a current
A.M. Best Company Rating equivalent to at least a Rating of "A:Vll.."
R Should CONSULTANT, for any reason, fait to obtain and maintain the insurance
required by this Agreement, CITY may obtain such coverage at
CONsuurANT's expense and deduct the cost of such insurance from payments
due to CONSULTANT under this Agreement or terminate pursuant to Section 1.5.
Agreement No. 4547
23. USE OF SUBCONTRACTORS, CONSUL 'CANT must obtain CtTY's prior written
approval to use any consultants while performing arty portion of this Agreement. Such approval
must approve of the proposed consultant and the terms of compensation. The consultants listecl
in Exhibit "A" are hereby approved.
24. INCIDENTAL TASKS. CONSULTANT will meet with CITY monthly to provide the
status on the pro.ject, 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 flic work to be clone before the, next: schedule Update.
25. NOTICES, All communications to either party by the other party will be deemed made
when received by such party at its respective name and address as follows.,:
If to CONSULTANT:
SEMS Technologies, LLC
3325 Paddocks Parkway, Ste 360
Suwanee, GA 30024
AttentiomMitel-i Copman
If to CITY:
City of El Segundo
350 Main Street
El Segt,nido, CA
Attention: Larry Klingarnan
Any such written cornmLinications 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 (lie manner prescribed in this paragraph.
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26. CONFUCTOF INTEREST, CONS U1A.'ANT will comply with all conflict of interest
J aw-s and regulations including„ without limitation, CITY, s coni'lict. of interest regulations.
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27. SOLICITATION. CONSULTANT maintains and warrants that it has not employed nor
retained any con-tpany or person, other than CONSULTANT' s bona fide 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 CONS UlTANT,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. SliotilcICONSUI-'I'ANTbreaci-iorviolatctliis
warranty, crry may rescind this, Agreement without liability.
28. THIRD PARTY BENEFICIARIES. This Agreement and every provision herein is
generally for the exclusive benefit of CONSULTANT and CITY and not for the benefit of any
Agreement No. 4547
other party. There will be no incidental or other beneficiaries of any of CONS ULTANT' 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.
30, COMPLIANCE WITH LAW. CONSUi.,TANT agrees to comply with all federal, state,
and local laws applicable to this Agreement.
31. ENTIRE AGREE MENT. This Agreement, and its Attachments, sets forth the entire
understanding of the parties. There are no other understandings, terins or other agreerricals
expressed or implied, oral or written. There are two (21) 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 competelit
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 stick portion enforecable and, as so
modified, such portion and the balance of this Agreement will continue in full force and e.l'fwt,,
34. AUTHORITY/MODIFICATION. The Parties represent and warrant that all necessary
action has been taken by the Parties to authorize (fie undersigned to execute this Agreement and to
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engage in the actions described herein. This Agreement may be modified by written aniendment.
CITY'S CXeCLItiVC manager, or designee, may execute any such arriendment on behalf of CITY.
35, AccEvrANCE OF FACSIMILE SIGNATuRE'S. The Parties agree that this Agreement,
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agreements ancillary to this Agreement, anitinen
d related docits to be entered into in connection
with this A-reen-iont will be considered signed when the signature of a party is delivered by
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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 ol'this Agreemci-itare for convenience of
reference only and will not affect the biterpretal ion of this Agreement.
37, TIME IS OF ESSENCE. Time is of the essence for each and. every provision of this
Agreement.
38. FORCE MAJE URE. Should performance of this Agreement be prevented due to fire, Flood,
explosion, acts of terrorism, war, embargo, governmej it action, civil or military authority, the
Agreement No. 4547
MR demento cu odwr sknHar causes beyond die Parties' reasonable control, then the,
Agreernwit MH Innn-imMy terminde whhout oblyadon of other pany to to oflwi%
W KFATEN41INT OF EXPE'RIENCE. By exec:artlaa tlalaa Agreement, C',ONSULTANT
reprosents Ihat it. has demonstrated and, possesses the quality,, fitness and c-apacity
to perf"orm the AfVcmncnt hi a rnanner sMkRwUwy to CTITY. (UNSOur,wr represents thou ii.,;
financial resources, suivy as insurance exl.wrience, servile experimme, amplelmi abilty,
pemminch current wokkmd, experience in dealing whh l6vac consulunits, arid experience in
dealing whh public agencies M suggest that. (A)MUl,"'I"ANT is capable of perf"(wriflng Oic
proposed c"ontrac't and has a Monshated cafnwhy to deal fairly arid effectively with and to
satisfy as public CITY
Q:. Signatures on next pagel
Agreement No. 4547
IN WIT'NESS WflI"Rl"l`l'Ol"a1,hc, pardes jj,,rve executed this coranact the dayalicl year
G'irsl hereinabove wrilten.
CITY 1," 17 LSEl"' ND110
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Cil y lagel,
Tr y Weaver
APPROVED "1"' 1
MARKDA-1- SVI Atcortiey
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K H 11. Bcrgt.,r ssis;u I C ity A
Taxpayc.r ID Nor 0-.82'76558 a
x t1'i'g;eeia ht/No. 4547
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.5"PIALES ORDER
3325 Paddocks Parkway, Suite 360 PHONE: 866-758-6582
T E C_ E
o MS
Suwanee, GA 30024 FAX: 678-455-0034
Bill To: Ship To: Same
Account Manager: Kurtis Warne Date: 10/9/2013
Main Contact James Turner Utility EI Segundo, CA
New Customer Current Customer Special Arrangements
Payment Terms
Payment due upon acceptance of this sales order.
SEMS Software Subscription: COST
1 SEM5 Software SUiteTM: $ 2,600.00
Asset Management Component
Water Quality Component
1 Backflow Component
5 SEMS Server Concurrent Users (Includes 5with Add'l$4Bo) $ -
SEMS Hosted/Web-Based User (Per User/Log-In $500) $
SEMS Add-ons:
SEMS Analytics'"
ESRI ArcGIS Server Integration
ESRI GIS Desktop Integration
SEMS Connect"
LAB
SCADA
Financial/Billing Software
SEMSSYNCT" (Per Block ofS Computers)
$ "
SEMS Mobile App doFormsT"
$
Implementation & Setup:
Asset Mangement Component
$ -
WaterQualityComponent
$ -
1 Backflow Component
$ 1,500.00
SEMS AnalyticsT"
$ -
ESRI GIS Desktop
$
ESRI ArcGIS Server
$
SEMS Connect"
$ -
SEMSMobileAppdoFormsT" (Includes 4 devices and l Work Order Form)
$ -
Remote Setup Assistance ($125 perhr)
$ -
Training Services:
Onsite Discovery (per day) ••
Onsite Training (perday) --
Onsite Follow Up/Refresher Training (perdav) ••
Remote Webinar Training ($12sper hr)
Accepted By:
Note: Sales order price onlygood for 30 days of date above.
$ 500.00
Total; $ 4;000.00
Annual Subscription: $ 1,200.00
Date: 8 V
I. ,t IS ° I Agreement No. 4547
SEMS TECHNOLOGIES, LLC
SOFTWARE AS A SERVICE (SaaS) AGREEMENT
1. Parties. The parties to this Agreement are you, City of El Segundo, a municipal
corporation and general law city, the licensee ("You") and SEMS Technologies, LLC (SEMS
Technologies). If You are not acting on behalf of Yourself as an individual, then "You" means
Your company or organization.
2. The Software. The Software licensed under this Agreement consists of computer
programs only in compiled, object code form, data compilation(s), and documentation referred to
as SEMS Technologies Software Suite (the "Software").
3. Subscription Term. The term of the license granted herein for the registered version of
the Software shall be on a subscription basis with an initial term of twelve (12) months, and
optional renewal terms of one year each, unless prior to renewal this license is terminated by
written notice by You for convenience or terminated by either party for material breach.
Renewal procedures are described in the accompanying documentation, and unless such
procedures are strictly satisfied, including the payment of any required license fee, Your use of
the Software for any purpose after the expiration of the initial term is not authorized. Upon
expiration of the initial subscription term, the Software may automatically disable itself.
Immediately upon expiration or termination of this license for any reason, You shall return to
SEMS Technologies all copies of the Software and documentation.
4. License Grant for Single Copies (Non -Network Use). You are hereby granted non-
exclusive rights to install and use the Software on multiple computers or workstations, but only
for Your internal use. You may copy the Software for archival purposes, provided that any copy
must contain the original Software's proprietary notices in unaltered form.
5. Restrictions. You may not: (i) permit others to use the Software, except as expressly
provided above for internal use within Your organization; (ii) modify or translate the Software;
(iii) reverse engineer, decompile, or disassemble the Software, except to the extent this
restriction is expressly prohibited by applicable law; (iv) create derivative works based on the
Software; (v) merge the Software with another product except for internal use only; (vi) copy the
Software, except as expressly provided above; or (vii) remove or obscure any proprietary rights
notices or labels on the Software.
6. Transfers. You may not transfer the Software or any rights under this Agreement without
the prior written consent of SEMS Technologies, which consent shall not be unreasonably
withheld. A condition to any transfer or assignment shall be that the recipient agrees to the terms
Agreement No. 4547
of this Agreement. Any attempted transfer or assignment in violation of this provision shall be
null and void.
7. Ownership. SEMS Technologies and its suppliers own the Software and all intellectual
property rights embodied therein, including copyrights and valuable trade secrets embodied in
the Software's design and coding methodology. The Software is protected by United States
copyright laws and international treaty provisions. This Agreement provides You only a limited
use license, and no ownership of any intellectual property.
8. Limited Warranty; Limitation of Liability. SEMS Technologies warrants only to you that
the Software shall perform substantially in accordance with accompanying documentation under
normal use for a period of ninety (90) days from the purchase date. The entire and exclusive
liability and remedy for breach of this Limited Warranty shall be, at SEMS Technologies' option,
either (i) return of the purchase price for the Software license, or (ii) replacement of defective
Software and/or documentation provided the Software and/or documentation is returned to
SEMS Technologies with a copy of your purchase confirmation. EXCEPT FOR THE LIMITED
EXPRESS WARRANTY PROVIDED ABOVE, NEITHER SEMS TECHNOLOGIES NOR
ANY OF ITS SUPPLIERS OR RESELLERS MAKES ANY WARRANTY OF ANY KIND,
EXPRESS OR IMPLIED, AND SEMS TECHNOLOGIES AND ITS SUPPLIERS
SPECIFICALLY DISCLAIM THE IMPLIED WARRANTIES OF TITLE, NON -
INFRINGEMENT, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE,
SYSTEM INTEGRATION, AND DATA ACCURACY. THERE IS NO WARRANTY OR
GUARANTEE THAT THE OPERATION OF THE SOFTWARE WILL BE
UNINTERRUPTED, ERROR -FREE, OR VIRUS -FREE, OR THAT THE SOFTWARE WILL
MEET ANY PARTICULAR CRITERIA OF PERFORMANCE, QUALITY, ACCURACY,
PURPOSE, OR NEED. YOU ASSUME THE ENTIRE RISK OF SELECTION,
INSTALLATION, AND USE OF THE SOFTWARE. THIS DISCLAIMER OF WARRANTY
CONSTITUTES AN ESSENTIAL PART OF THIS AGREEMENT. NO USE OF THE
SOFTWARE IS AUTHORIZED HEREUNDER EXCEPT UNDER THIS DISCLAIMER.
9. Local Law. If implied warranties may not be disclaimed under applicable law, then ANY
IMPLIED WARRANTIES ARE LIMITED IN DURATION TO THE PERIOD REQUIRED BY
APPLICABLE LAW. Some states do not allow limitations on how long an implied warranty
may last, so the above limitations may not apply to You. This warranty gives you specific rights,
and You may have other rights which vary from jurisdiction to jurisdiction.
10. Limitation of Liability. INDEPENDENT OF THE FORGOING PROVISIONS, IN NO
EVENT AND UNDER NO LEGAL THEORY, INCLUDING WITHOUT LIMITATION,
TORT, CONTRACT, OR STRICT PRODUCTS LIABILITY, SHALL SEMS
TECHNOLOGIES OR ANY OF ITS SUPPLIERS BE LIABLE TO YOU OR ANY OTHER
PERSON FOR ANY INDIRECT, SPECIAL, INCIDENTAL, OR CONSEQUENTIAL
DAMAGES OF ANY KIND, INCLUDING WITHOUT LIMITATION, DAMAGES FOR
LOSS OF GOODWILL, WORK STOPPAGE, COMPUTER MALFUNCTION, OR ANY
OTHER KIND OF COMMERCIAL DAMAGE, EVEN IF SEMS TECHNOLOGIES HAS
BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THIS LIMITATION
SHALL NOT APPLY TO LIABILITY FOR DEATH OR PERSONAL INJURY TO THE
EXTENT PROHIBITED BY APPLICABLE LAW. .
Agreement No. 4547
11. Export Controls. You agree to comply with all export laws and restrictions and
regulations of the United States or foreign agencies or authorities, and not to export or re-export
the Software or any direct product thereof in violation of any such restrictions, laws or
regulations, or without all necessary approvals. As applicable, each party shall obtain and bear
all expenses relating to any necessary licenses and/or exemptions with respect to its own export
of the Software from the U.S. Neither the Software nor the underlying information or
technology may be electronically transmitted or otherwise exported or re-exported (i) into Cuba,
Iran, Iraq, Libya, North Korea, Sudan, Syria or any other country subject to U.S. trade sanctions
covering the Software, to individuals or entities controlled by such countries, or to nationals or
residents of such countries other than nationals who are lawfully admitted permanent residents of
countries not subject to such sanctions; or (ii) to anyone on the U.S. Treasury Department's list
of Specially Designated Nationals and Blocked Persons or the U.S. Commerce Department's
Table of Denial Orders. By downloading or using the Software, Licensee agrees to the foregoing
and represents and warrants that it complies with these conditions.
12. U.S. Government End -Users. The Software is a "commercial item," as that term is
defined in 48 C.F.R. 2.101 (Oct. 1995), consisting of "commercial computer software" and
"commercial computer software documentation," as such terms are used in 48 C.F.R. 12.212
(Sept. 1995). Consistent with 48 C.F.R. 12.212 and 48 C.F.R. 227.7202-1 through 227.7202-4
(June 1995), all U.S. Government End Users acquire the Software with only those rights set forth
herein.
13. Licensee Outside The U.S. If You are located outside the U.S., then the following
provisions shall apply: (i) Les parties aux presentes confirment leur volonte que cette convention
de meme que tous les documents y compris tout avis qui siy rattache, soient rediges en langue
anglaise (translation: "The parties confirm that this Agreement and all related documentation is
and will be in the English language."); and (ii) You are responsible for complying with any local
laws in your jurisdiction which might impact your right to import, export or use the Software,
and You represent that You have complied with any regulations or registration procedures
required by applicable law to make this license enforceable.
14. Severability. If any provision of this Agreement is declared invalid or unenforceable,
such provision shall be deemed modified to the extent necessary and possible to render it valid
and enforceable. In any event, the unenforceability or invalidity of any provision shall not affect
any other provision of this Agreement, and this Agreement shall continue in fall force and effect,
and be construed and enforced, as if such provision had not been included, or had been modified
as above provided, as the case may be.
15. Mediation. Prior to initiating litigation of any dispute arising out of or relating to this
Agreement, the parties must first attempt in good faith to resolve their dispute by participating in
a negotiation between executives with authority to settle the controversy. Any party may give
the other party written notice of any dispute not resolved in the ordinary course of business, and
within 10 days after the other party's receipt of that notice, the parties shall meet in person or by
telephone to attempt to resolve the controversy. Unless otherwise agreed to in writing by the
negotiating parties, the above -referenced negotiation shall end at the close of the first meeting of
Agreement No. 4547
executives described above, although such closure will not preclude continuing or later
negotiations if so desired.
In the event that the parties are unable to resolve their dispute through negotiation, and prior to
initiating litigation or any other proceeding, the parties shall submit the matter to nonbinding
mediation by a neutral, certified mediator agreed upon by both parties. The parties agree that
they will participate in the mediation in good faith, and they shall split the cost of the mediator,
but shall be responsible for their own attorneys' fees. All offers, promises, conduct and
statements, whether oral or written, made in the course of the negotiation or mediation by any of
the parties, their agents, employees, experts, and attorneys, and by the mediator, are confidential
and privileged statements made for the purposes of settlement only, and are inadmissible for any
purpose, including impeachment, in any other proceeding involving the parties
16. Jurisdiction And Venue. The courts of the State of California, USA and the U.S. District
Courts of California, shall be the exclusive jurisdiction and venue for all legal proceedings that
are not mediated under this Agreement.
17. Force Majeure. Neither party shall be liable for damages for any delay or failure of
delivery arising out of causes beyond their reasonable control and without their fault or
negligence, including, but not limited to, Acts of God, acts of civil or military authority, fires,
riots, wars, embargoes, Internet disruptions, or communications failures. Neither party shall be
liable for damages caused by hacker attacks upon the other party. Notwithstanding anything to
the contrary contained herein, if either party is unable to perform hereunder for a period of thirty
(30) consecutive days, then the other party may terminate this Agreement immediately without
liability by ten (10) days written notice to the other.
18. Miscellaneous. This Agreement constitutes the entire understanding of the parties with
respect to the subject matter of this Agreement and merges all prior communications,
representations, and agreements. This Agreement may be modified only by a written
agreement signed by the parties. If any provision of this Agreement is held to be
unenforceable for any reason, such provision shall be reformed only to the extent
necessary to make it enforceable. This Agreement shall be construed under the laws of
the State of California, USA, excluding rules regarding conflicts of law. The application
the United Nations Convention of Contracts for the International Sale of Goods is
expressly excluded. The parties agree that the Uniform Computer Transactions Act or
any version thereof, adopted by any state, in any form ("UCITA"), shall not apply to this
Agreement, and to the extent that UCITA may be applicable, the parties agree to opt out
of the applicability of UCITA pursuant to the opt -out provision(s) contained therein.
Agreement No. 4547
By executing this Agreement, the parties acknowledge tbat they have reviewed the terms and
conditions incorporated into this Agreement and they agree to be legally bound by these terms
and eenditions, The parties hereby cause this Agreement to be executed by their respective, duty
authorized rpry esciltatives, effective as of the date of" execution of this Agreement,
I
City of El Segundo S,EMS Tech.nologies, LL(
N arn e Narne
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