HomeMy WebLinkAboutAgreement A-19-034 with Levi Ray Shoup Inc..pdf Agreement No. 19-034
LEVI, RAY & SHOUP, INC.
Software License Schedule-Term
Version X2.0
CA0329
This License Schedule ("Agreement") is entered into on January 29 , 2019 between Levi, Ray &
Shoup, Inc., an Illinois Corporation ("Licensor" or "LRS") and the County of Fresno ("Licensee,"
"County," or "Customer"), who may be referred to as Parties" or individually, as a Party, and is an
Agreement to license the Software listed below pursuant to the terms of this License Schedule and
the General Terms and Conditions for Term License Agreement Version X2.0 ,which are attached
hereto as Exhibit B and incorporated by this reference ("General Terms").
1. Software. The following Software products are licensed pursuant to this Agreement subject
to the license restrictions set forth in Section 2 below: VPSX Enterprise® and
PageCenterX®
2. License Restrictions. Unless specified otherwise herein, the Software may be installed on
an unlimited number of Designated Servers provided Licensor is notified of the host name
and operating system of each Designated Server upon which the Software is installed, and
the Designated Servers are located at a single Installation Location. The Software will be
delivered with a license key that will restrict usage to Designated Servers for the Term and
enforce other license restrictions set forth herein. Subject to the license restrictions below, if
Licensee opts to run the Software on a different Designated Server or on a different
operating system, upon Licensee's request which shall include the requisite information to
generate a license key, Licensor will provide Licensee with a new license key that enables
the Software to operate on the newly designated server and/or operating system at no
charge.
Upon written request, Licensor shall provide Licensee with a license key to allow Licensee
to operate the Software on failover and/or disaster recovery server(s) provided that the
license key does not exceed the aggregate number of supported printers and/or users
licensed below and that Licensee shall not use the failover/disaster recovery server
concurrently in production with the Designated Server(s).
2.1 Software Licensed by Supported Printers
Software Operating System Supported Printers
Licensed
VPSX Enterprise Windows Twenty-Five 25
The number above is the maximum number of Software definitions of output devices
(e.g., printers, multi-function devices, fax servers, email servers) (hereafter
"Supported Printers"). If the Software is used on more than one Designated Server,
the Supported Printers shall be allocated among the Designated Servers.
VPSX/PDM, which is a component of the Software, may be installed on up to 10
workstations for every one Supported Printer.
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2.2 Software licensed by Users
Software Operating Concurrent Users Licensed
System
Pa eCenterX Windows Fifty 50
The number above is the maximum number of individuals that may use the Software
at any one time. Licensed users authorized by Licensee may be third parties
provided such licensed users shall only have access to the PageCenterX Software
via a web browser and shall have no access to the object code or Documentation.
3. Term: Three (3) years, beginning on February 1, 2019, and ending on January 31, 2022,
inclusive of both dates ("Initial Term"). The Initial Term will automatically renew annually for
two (2) additional one (1) year periods for the license fees set forth in section 5 below
("Renewal Terms") unless Licensee chooses not to renew the Term by providing Licensor
written notice on or before November 1st of the then current annual period. ("Non-Renewal
Notice"). If Licensor receives the Non-Renewal Notice, Licensee will not be responsible for
any Licensee Fees for the next annual time period of any Renewal Term.
4. Installation Location: 333 W. Pontiac Way, Clovis, CA 93612. Licensee may change the
Installation Location within the country where the Software was originally licensed by
providing Licensor with thirty (30) days prior written notice. The Installation Location may
not be changed to a country other than the country where the Software was originally
licensed without the prior written consent of the Licensor, which consent shall not be
unreasonably withheld.
Billing address/Invoices: Licensor shall submit invoices (which must reference the
provided contract number), either electronically or via e-mail to Licensee as follows:
If via mail: County of Fesno ISD, Accounts Payable, 333 W. Pontiac Way, Clovis, CA
93612
If by e-mail: Accounts Payable (ISDBusinessOffice(cD_Co.Fresno.Ca.US)
5. Consulting Services Agreement: LRS will provide consulting, training, and conversion
services related to this Agreement, as detailed in the attached Exhibit A, which is
incorporated by this reference.
6. Fees, and Payments: The License Fees payable under this Agreement shall be paid in the
amounts and on the dates set forth in the table below. Licensee shall not be entitled to a
refund or a reduction in license fees due should the usage of the Software be reduced
during the Term. The license fees due under this Agreement shall be due and payable
within forty-five (45) days of receipt of an invoice for the same.
6.1 License Fees
Time Period Covered License Fee
February 1, 2019 —January 31, 2020 $49,791.00
February 1, 2020 —January 31, 2021 $51,285.00
February 1, 2021 —January 31, 2022 $52,824.00
February 1, 2022 —January 31, 2023 $54,409.00
Firstt Option Year
February 1, 2023 —January 31, 2023 $56,041.00
Second Option Year
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In no event shall the compensation for License Fees under this Agreement exceed
$154,000.00 during the Initial Term of this Agreement. If the Initial Term is
automatically renewed for the First Option Year, the total compensation for License
Fees for the entire four (4) year term of this Agreement shall not exceed
$209,000.00. If the First Option Year is automatically renewed for the Second
Option Year, the total compensation for License Fees for the entire five (5) year
term of this Agreement shall not exceed $265,000.00.
6.2 Upgrade Fees: During the Term, Licensee may increase the license restriction
limits set forth above by entering into a supplement to this License Schedule and by
paying the additional license fees based on Licensor's then current price list for the
Software. Upon receipt of the executed supplement, Licensor shall invoice Licensee
for the additional license fees on a pro rata basis for the remainder of any prepaid
annual period. Thereafter, for the remainder of the Term, the annual license fee
shall be increased to include such additional license fees. Upon receipt of payment
for such additional license fees, Licensor shall provide Licensee with the necessary
key(s) to allow the Software to be used to support the new license restrictions.
6.3 Not to Exceed Amounts including Consulting Service Fees: In no event shall the
total compensation, including license fees and consulting service fees, for this
Agreement (collectively "Total Fee") exceed $244,000.00 during the Initial Term of
this Agreement. If the Initial Term is automatically renewed for the First Option
Year, the Total Fee for the entire four (4) year term of this Agreement shall not
exceed $299,000. If the First Option Year is automatically renewed for the Second
Option Year, the Total Fee for the entire five (5) year term of this Agreement shall
not exceed $355,000.00.
7. Non-Appropriation Termination. The continuation of this Agreement is contingent upon the
appropriation by the appropriating governmental agency ("Governing Agency"). If sufficient
funds as determined by the Governing Agency are not appropriated to provide for
continuation of this Agreement, the Agreement shall terminate on the first date in any fiscal
year on which sufficient funds are no longer available. Licensee will give thirty (30) days or
as much notice as possible of an appropriation problem. Licensee agrees that Licensee will
use its best efforts to obtain approval of necessary funds to continue the Agreement by
taking the appropriate action to request adequate funds to continue the Agreement in force.
8. The Parties agree to abide by the Health Insurance Portability and Accountability Act
("HIPAA) and HITECH Act as set forth in the attached Exhibit C, attached hereto and made
a part hereof.
9. Acceptance of Reproductions as Originals. The parties agree that any reproduction of
this Agreement made by reliable means (e.g., photocopy, facsimile, scanned image) may
be delivered, fully or partially executed, to the other party electronically (e.g., facsimile or
electronic mail). Any such reliable reproduction of this Agreement shall be considered an
original in all respects and any authorized signature thereon shall be deemed genuine
irrespective of whether the signature is an original or a reproduction made by reliable
means.
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10. Authorization. Each undersigned hereby represents and warrants that he or she has been
duly authorized by his or her respective Company to enter into and execute the Agreement.
11. Hold Harmless
Licensor agrees to indemnify, save, hold harmless, and at Licensee's request, defend
Licensee, its officers, agents, and employees from any and all costs and expenses
(including attorney's fees and costs), damages, liabilities, claims, and losses, and any and
all claims, damages, cons, fees, regulatory fines and penalties, and forms of legal action
involving cyber risks, resulting from Licensor's negligence or misconduct in connection with
the performance of Services, or failure to perform Services, by Licensor, its officers, agents,
or employees under this Agreement. The parties agree that the total liability under this
section shall not exceed $2,000,000.00.
The provisions of this Section 11 shall survive the termination of this Agreement.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the day and year
first hereinabove written.
LEVI, RAY, HOUP, INC. COUNTY OF FRESNO
John Howerter, Senior Vice Nathan Magsig, Chairman of the Board of
President EOM Supervisors of the County of Fresno
Levi, Ray, & Shoup, Inc.
30.rv.aa'�A U f a0 I
Date Li
ATTEST:
Bernice E. Seidel
Clerk of the Board of Supervisors
County of Fresno, State of California
By:
Dbpdty
FOR ACCOUNTING USE ONLY:
ORG No.: 89050000
Account No.: 7309
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Exhibit A
LEVI, RAY & SHOUP, INC.
Consulting Services Agreement
Account# CA0329 —County of Fresno
This Consulting Services Agreement ("Services Agreement") is incorporated into the Software
License Schedule for VPSX Enterprise® and PageCenterX® and governs consulting services
provided by LRS to Customer related to the Conversion and Migration of Customer's existing
archive system(s) to PageCenterX® pursuant to the terms of this wider Services Agreement.
1. Scope of Work
LRS is providing consulting services to Customer, for the purpose of migrating a single
instance, unless otherwise noted, of one archive, CA ViewDirect for Networks ("Archive"), to a
single instance of LRS's PageCenterX software ("PageCenterX"), which is licensed pursuant
to this Agreement. For purposes of this Services Agreement, "Conversion" shall mean
adapting and modifying the existing available user and report definitions/functions into a single
set of applicable and generally available PageCenterX definitions/functions, as described
herein (i.e., Users/Groups, Folders, Reports, Destinations, decollation, etc.). For purposes of
this Agreement, "Migration" shall mean providing and using a LRS-proprietary utility to migrate
Customer's existing historical report data from the Archive to a single instance of
PageCenterX, as described herein. Based on LRS review of Customer's Archive, (information
from January 26, 2018), there are 686,526 reports dating back to January 1996. Of those,
there are 2,226 unique reports. There are 555 unique Recipients, 22,580 distributions (they
have both full and partial distributions), 639 unique hierarchy codes. There are 3,814 Users
defined and 268 groups. There are 1,037 policy definitions.
1.1 LRS will provide appropriate consulting resources for the Conversion and Migration
services as described above. LRS tasks may be performed remotely or onsite, as
required, at LRS' discretion.
1.2 LRS shall provide a Conversion Specifications Document for Customer's signature
after collaborating with Customer during the Conversion Planning Meeting.
Deliverables from the Conversion Planning Meeting will include 1) a spreadsheet of
any mapping or translation issues addressed between Customer's Archive and
PageCenterX, and 2) a specifications document outlining decisions that were made in
how metadata from the Archive will be converted to PageCenterX.
1.3 LRS will bring forward the available metadata from Customer's Archive and populate
PageCenterX with the information. Metadata not available will be entered manually by
the Customer or programmatically from a spreadsheet, if made available to LRS. This
will be determined in the Conversion Planning Meeting and documented in the
Conversion Specifications Document.
1.4 LRS will provide implementation planning guidelines to the Customer for parallel
processing and production.
1.5 LRS will develop and/or customize LRS proprietary programs and scripts necessary for
migrating existing historical reports from Customer's Archive into PageCenterX (the
"LRS Proprietary Programs").
1.6 The LRS Proprietary Program may include selection criteria of date range and/or report
name/prefix.
1.7 LRS Proprietary Programs will be provided to Customer for use in the Migration of their
historical reports. The LRS Proprietary Programs shall remain the sole property of
LRS. LRS hereby grants Customer a non-exclusive, nontransferable license to use the
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LRS Proprietary Programs until the completion of the Migration of the Archive or twelve
(12) months after providing the Migration Approval. The LRS Proprietary Programs are
not part of PageCenterX and are not covered under Customer's license maintenance
agreements for PageCenterX. LRS represents and warrants that it has all rights in and
to the LRS Proprietary Programs necessary to grant the license set forth in this
Section.
1.8 The Migration process will include an audit program that will compare the files in
PageCenterX to the files that were in the Customer's Archive to confirm that all of the
documents were migrated successfully.
1.9 LRS will assist the Customer to successfully migrate at least four (4) of Customer's
historical reports from the Archive. This exercise is meant to prove that the migration
utility works as designed and that the PageCenterX metadata is correct.
1.10 LRS will provide instructions and remote support to the Customer to run the LRS
Proprietary Programs so Customer can migrate any remaining historical reports from
the Archive.
1.11 LRS will provide up to twenty-four (24) hours of implementation, administrator, and
end-user training to assist Customer in the successful implementation and Migration
from Customer's Archive to PageCenterX. Training may be performed at the
Customer's site or via remote desktop sharing, as agreed upon by Customer and LRS.
The LRS Project Manager will provide sample training objectives, agendas, and
supplemental administrative & end user training guides during the Conversion Planning
Meeting.
1.11.1 Remote desktop sharing training must be used in minimum increments of
two (2) hours or more. If requested, LRS will provide one (1) onsite training
session for a minimum of eight (8) hours, and such onsite training shall be
counted towards Customer's twenty-four (24) hour training limit.
1.11.2 The training provided pursuant to this section must be utilized by the
Customer within one (1) year from the date of Customer's signature below;
any remaining unused training will expire.
1.12 Any command procedure that has similar functionality in PageCenterX and can be
made available with minor changes, will be provided at no additional cost. Command
procedures that require significant custom development will be estimated and
planned outside the current scope.
1.13 LRS will provide the necessary EOM System Engineer(s) ("SE") to perform the
following non-Migration Services remotely or onsite, as required. The services in
Section 1.13 shall be collectively referred to as "Integration Services":
1.13.1 General installation and configuration of VPSX Enterprise® and
PageCenterX for use in a production environment.
1.13.1.1 Assist with the installation and system level configuration of VPSX
Enterprise on a Windows® server.
1.13.1.2 Assist with installation aond configuration of the LRS infrastructure
component (LRS/Web Connect) on a Microsoft Internet
Information Server (IIS) web server, as required to enable the
browser interface for VPSX Enterprise.
1.13.1.3 Assist with the installation and configuration of the LRS Directory
Integration Server (LRS/DIS) including assistance with the
configuration of Active Directory integration with VPSX Enterprise.
1.13.1.4 Installation and configuration of LRS/Queue job submission agent
on a production Windows®server.
1.13.2 Installation and system level configuration of PageCenterX on a Windows
server.
1.13.2.1 Assist with basic configuration of PageCenterX.
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1.13.2.2 Assist with PageCenterX basic administration services, including
baskc "Folder", and "Report" definition procedures — up to three
(3) reports and usage.
1.13.2.3 Demonstrate loading and accessing reporsts in PageCenterX.
1.13.3 LRS Systems Engineer(s) will provide basic knowledge transfer training to
Customer personnel in conjunction with these Integration Services:
1.13.3.1 Basic architecture, installation, and configuration.
1.13.3.2 VPSX Enterprise basic administration, including system settings,
printer definition — up to five (5) printers, user definition, and
usage.
1.13.3.3 Define up to five (5) users in PageCenterX, to provide basic level
access to PageCenterX 'Folder' and reports
1.13.3.4 LRS will provide Customer with initial architecture
recommendations and best practices for integrating the
Customer's Application Delivery Controllers (commonly referred
to as Network Load Balancers) with LRS solutions to achieve
high availability and/or disaster recovery capability.
1.13.3.5 LRS will provide Customer with general sizing guidelines and
guidance for initial sizing of hardware to support the LRS
solutions. LRS recommendations are general guidelines based
on product knowledge and past experience with representative
LRS customers.
The Migration and Conversion services set forth in Sections 1.1 — 1.2 and the Integration
Services set forth in Section 1.13 above shall be collectively referred to as "Services".
If LRS determines that the Customer needs services performed beyond the scope of this
Services Agreement, then LRS shall consult with the Customer about such services. If the
Customer chooses to proceed, the parties shall enter into a separate agreement before such
services are commenced.
Services not specifically identified herein (or in any document specifically incorporated herein
and signed by both parties) are specifically excluded.
Notwithstanding anything stated to the contrary in the section below titled Limited Warranty
and Limitation of Liability, the parties agree that any scripts, filters, utilities or code delivered
pursuant to this Services Agreement ("Supported Script") shall be considered an
Enhancement to LRS' VPSX Enterprise product. Upon delivery, the Supported Script(s) shall
be governed by the parties' software license agreement applicable to VPSX Enterprise
("License Agreement") in all respects and will be maintained and supported pursuant to the
terms of the License Agreement.
2. Performance and Scheduling of Integration Services. The Integration Services will be
performed onsite at Customer's location and/or remotely via telephone, email, and/or via
remote desktop sharing sessions as agreed upon by Customer and LRS. LRS does not
anticipate allocating an SE to provide the Integration Services on an "on demand" or full-time
basis. LRS will work with the Customer on scheduling of Integration Services to meet the
Customer's requirements as closely as possible, subject to the availability of LRS SE
resources.
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3. Customer Responsibilities and Requirements
3.1 The Customer is responsible for performing the necessary set-up of the required
hardware as well as ensuring that network preparation has been made for the
installation of the licensed LRS products in Customer's environment, as outlined in the
LRS-provided product manuals. This includes testing and historical reports Migration.
Customer is responsible for monitoring these resources during installation and
historical reports Migration phases.
3.2 The Customer must provide report/file data from the Archive in the original formats or
in a format suitable for processing.
3.3 If LRS reasonably requires any other information for the PageCenterX system that is
not accessible from machine readable sources or cannot be externally loaded into
PageCenterX, the Customer will manually enter this information directly into
PageCenterX.
3.4 Due to differences of certain fields in the Archive versus PageCenterX, in some cases
the Customer may be required to supply either a workable algorithm and/or table to
map/translate Archive data fields to related PageCenterX data fields.
3.5 Portions of the Migration tasks may be performed via remote desktop sharing sessions.
Customer will allow use of remote desktop sharing software or an equivalent meeting
software, as reasonably required for LRS to remotely access necessary systems and
applications (with monitoring by and assistance from
Customer staff where reasonably required). LRS can only view and gain access to
Customer's systems after Customer logs onto remote desktop sharing, control of the
remote desktop sharing session is passed to Customer, and Customer grants said
access to the LRS staff.
3.6 The Customer will identify internal personnel to participate as part of the Customer's
Migration team. Skill sets required by Customer throughout the project will be provided
by the LRS Project Manager before the project begins.
3.7 The Customer must designate a primary contact with knowledge of and access to all
applicable Customer systems, at the required security levels, to be available to LRS
during all remote desktop sharing sessions, as well as during any onsite work. In order
to complete these tasks in the time allotted, the Customer must be fully available and
committed to accomplishing these tasks. Remote desktop sharing sessions shall take
place during times mutually agreed to by the parties.
3.8 Customer shall provide existing datasets from the Archive, where required, to provide
information for PageCenterX users/groups, and report characteristics (i.e., report
names, report generations to retain, etc.) LRS is not able to process any permissions
that are defined in external security products.
3.9 Customer will provide information on the installation of the Archive, setup and
implementation. This may include, but is not limited to, file layouts and access to
documentation on the Archive.
3.10 Customer will determine and notify LRS of the PageCenterX folder structure, within the
PageCenterX capabilities that the software provides, to be used for the reports coming
from the Archive.
3.11 Customer will participate in a three (3) day on-site planning session to discuss details
of the Archive project ("Conversion Planning Meeting"). During the Conversion
Planning Meeting, Customer shall collaborate with LRS to develop and execute a
document which will contain detailed information on how decision points taken in the
Conversion Planning Meeting will be implemented ("Conversion Specifications
Document"). This Conversion Specifications Document will be technical in nature,
detailing specific technical issues which were discovered that need to be addressed as
part of the Conversion process. The Conversion Specifications Document will be used
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as the specification to which the Conversion team will work. If any questions arise
during the Conversion work, the parties will work in good faith to amend the
Conversion Specifications Document.
3.12 Customer must approve the Conversion Specifications Document, which includes the
structure and naming conventions of the PageCenterX folders, before LRS will
generate the metadata for PageCenterX. If no response is received from the Customer
within ten (10) business days, the Conversion Specifications Document will be deemed
approved.
3.13 Within ten (10) business days of receipt, the Customer will review and approve the final
metadata Conversion results. If no response is received from the Customer within
these ten (10) business days, the metadata Conversion results will be deemed
approved. If Customer rejects the metadata Conversion results, LRS shall make any
necessary and mutually agreed upon revisions to the metadata Conversion results,
and Customer shall have an additional five (5) business days after receipt of the
revised metadata Conversion results to either approve or reject the metadata
Conversion results in writing.
3.14 If it is determined that parallel processing is required, the Customer will provide
sufficient space on a server that will be used for re-queuing reports to the Archive once
VPSX Enterprise has processed them for PageCenterX to allow for parallel processing
between Customer's Archive and PageCenterX. The simplest way to achieve this is to
leave all Production jobs unchanged and have the Customer send their reports
wherever the reports are currently sent. LRS will set VPSX Enterprise up to intercept
these reports, then pass the reports on to the other directory in addition to
PageCenterX. The one change necessary is to get the Archive to read the other
directory.
3.15 Customer is responsible for reviewing and approving the results of the four (4)
historical reports migrated by LRS (see Scope of Work) ("Migration Approval"). The
Migration Approval must occur within five (5) business days after LRS has informed
Customer that the reports have been migrated. If no response is received from the
Customer within five (5) business days, the results will be deemed approved. If the
Customer rejects the historical reports, LRS shall make any necessary revisions to the
LRS Proprietary Program, and Customer shall have an additional five (5) business
days after receipt of the revised historical reports to either accept or reject the historical
reports in writing.
3.16 Customer is responsible for migrating historical reports required by Customer and
running the audit program supplied by LRS. Customer is responsible for reviewing and
processing any exceptions found during the audit to ensure that all required historical
reports are migrated without any duplication or omission.
3.17 Customer shall remove LRS Proprietary Programs from its environment upon the
completion of the Migration of the Archive or twelve (12) months after providing the
Migration Approval, whichever occurs earlier. At LRS's request, Customer shall notify
LRS in writing when LRS Proprietary Programs have been removed.
3.18 In the event that the Customer adds new reports or users to the Archive system
between the completion of the Conversion Planning Meetings and the PageCenterX
production cut-over, it will be the Customer's responsibility to migrate any metadata
and reports to PageCenterX.
3.19 If applicable, the Customer shall be responsible for ensuring the cooperation of any IT
outsourcer engaged by Customer where required to enable LRS to perform the
Conversion and Migration services described herein. LRS shall not be responsible for
any delay in providing services to the extent caused by such outsourcer's failure to
cooperate as reasonably required for the completion of the services.
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3.20 The Customer shall be responsible for implementing Support for ActivePerl® on the
VPSX® and PageCenterX® servers, if it is not already available. If necessary and
requested by LRS, the Customer may need to upgrade or install ActivePerl® because
the LRS Proprietary Programs include some that are written in ActivePerl®. Should
Customer prefer not to install ActivePerl® in its environment, LRS can instead deliver
ActivePerl® scripts as executables.
3.21 The Customer is responsible for all initial and ongoing configuration and maintenance
of their Appplication Delivery Controllers and associated configurations for high
availability and/or disaster recovery of the LRS solutions.
3.22 The Customer is ultimately responsible for selecting the hardware size and
configuration and is responsible for all maintenance of the associated hardware and
supporting software.
3.23 The Customer shall provide resources with the appropriate authority and access to all
areas of the system necessary to accomplish the Integration Services.
3.24 The Customer shall coordinate its resources to ensure LRS has sufficient opportunity
to perform the requested Integration Services under this Services Agreement.
3.25 The Customer shall furnish LRS all technical data and information as may be
reasonably determined by LRS to be necessary to prove the Integration Services
included under this Services Agreement, including but not limited to, reference and
instructional materials about Customer's computing environment, standards,
procedures, etc., and to any documentation relating to relevant Customer applications.
4. Key Assumptions
4.1 Report formats from Customer's Archive are consistent throughout the period to be
back filled or the Customer can identify where to implement changes.
4.2 Decisions on how to handle the Migration of the Customer's data from the Archive will
be determined jointly by LRS and Customer during the Conversion Planning Meeting.
4.3 Based on LRS' understanding of Customer's planned business usage of PageCenterX,
LRS will recommend naming conventions to be used for the PageCenterX folder
structure, as required. However, the Customer will make the final determination on the
naming conventions that will be used for the migration.
4.4 Only reports from Customer's Archive will be migrated to PageCenterX. No other
archives will be included in this scope of work.
4.5 If Customer uses external security or custom security code for accessing reports, the
Customer is responsible for setting up the security surrounding users, user groups and
permission in PageCenterX.
4.6 Historical reports that will be migrated will be processed from the Archive.
PageCenterX definitions are set up to capture reports based on the source creation
system. There will NOT be separate PageCenterX definitions for the historical reports.
4.7 If historical reports do not match the defined PageCenterX capture criteria, then
Customer will need to decide the approach to handle historical reports to be migrated.
Options will be discussed and presented to Customer before proceeding.
4.8 Any z/OS output must be routed through the JES spool in order to be captured by
PageCenterX.
4.9 The Customer can identify reports requiring overlays.
4.10 Overlays have remained consistent throughout the period to be back filed or the
Customer can identify where to implement changes.
4.11 PageCenterX cannot directly support AFP documents, and conversion software
products to convert data from AFP or MMD to PDF may be required and can be
licensed from LRS under a separate license agreement. These conversion software
products support the transformation of most reports generated in production AFP
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environments. However, during the process of a Conversation/Migration, it is
occasionally possible to uncover reports that use non-standard AFP resources and/or
constructs that may cause them to transform to PDF incorrectly. Handling unusual
requirements of this nature may result in a change to the overall cost for the
Conversion/Migration.
4.12 If Xerox reports or data stream need to be supported for either ongoing reporting or for
historical reports in PageCenterX, this will be addressed when the full requirements are
known. Depending on the requirements this may result in a change to the overall cost
for the Conversion/Migration.
4.13 Any Existing Bundling of reports in the Archive will NOT be brought forward to
PageCenterX.
4.14 No special exits or customizations appear to be in use in the Customer's Archive, so
no equivalent special processing will be needed in PageCenterX.
5. Fees and Payment
Customer shall pay LRS a total fixed fee of $80,000.00 for Services performed under this
Agreement, ("Total Service Fee"). The Total Service Fee represents $60,000.00 for Migration
and Conversion Services and $20,000.00 for Integration Services. The fee for all Services
provided hereunder shall not exceed $80,000.00 without prior written approval from Customer
and does not include any travel-related expenses incurred by the project team when
performing these services.
LRS shall invoice Customer for the Services based on the milestones set forth in the table
below. Customer shall pay all invoices within forty-five (45) days from receipt of the invoice.
Milestone Amount to
be Invoiced
1. Upon the execution of the Agreement by Customer $ 25,000.00
2. Upon completion of Integration Services as set forth in Section $ 20,000.00
1.13.1
3. Upon completion of Conversion Planning Meetings and Basic $ 15,000.00
Administrative Training.
4. Delivery of PageCenterX Advanced Import Definitions. $ 15,000.00
5. Delivery of Migration utility and assistance with sample Migration of $ 5,000.00
reports from Customer's Archive.
Any expenses for "reasonable and customary" travel by the project team (e.g. air fare, car
rental, hotels, meals, etc.) to/from Customer's location for Services (collectively, "Expenses")
will be billed and invoiced monthly as incurred.
LRS agrees that Expenses will not exceed $7,500.00 without prior written approval from
Customer.
In no event shall the compensation for services and related expenses, including taxes, exceed
$90,000 during the term of this Services Agreement.
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6. Changes to Scope of Work
Changes to the Conversion Specifications Document will be managed as change requests
signed by both parties and may result in modifications to the milestones, deliverable schedule,
and/or fees. Change requests that result in delays or additional work as a result of those
changes shall be billable at a rate of $250.00 per hour, plus expenses, unless otherwise
agreed by the parties. LRS shall not begin work on any change request or modification to the
Conversion Specifications Document until the parties agree to such request in writing.
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Exhibit B
LEVI, RAY & SHOUP, INC.
GENERAL TERMS AND CONDITIONS FOR TERM LICENSE AGREEMENT
Version X2.0
These General Terms and Conditions ("General Terms") will apply between Levi, Ray & Shoup,
Inc., an Illinois Corporation ("Licensor") and Licensee. These General Terms will be effective as of
the Effective Date. Agreements to license additional Software, or to re-license Software upon the
expiration of a Term, may be accomplished by amending the Agreement and executing new
License Schedules incorporating these General Terms.
1.0 Definitions.
1.1 Affiliate means in relation to the County of Fresno or any various County
departments.
1.2 Agreement means a License Schedule signed by Licensor and Licensee that
references and incorporates these General Terms pursuant to which Licensor
licenses Software to Licensee.
1.3 Company means any natural person or any corporation, partnership, trust,
association or any other type of legal entity.
1.4 Critical Problem means a problem caused by the Software resulting in a material
interruption to the Licensee's business operations.
1.5 Designated Server means any server upon which the Software is installed and
which is enabled by a license key provided by Licensor.
1.6 Documentation means the technical information and user manuals pertaining to
the Software which are made available to Licensee pursuant to the Agreement.
1.7 Effective Date in reference to the Agreement is the earliest signature date on the
Agreement between Licensor and Licensee.
1.8 Enhancement means generally available improvements, fixes, modifications,
changes, filters or new releases or versions of the Software and any accompanying
Documentation.
1.9 Installation Location(s) is Licensee's facility(ies) located at the address(es) listed
on or identified pursuant to the applicable License Schedule indicating where the
Software is or may be installed.
1.10 License Schedule means the Agreement signed by Licensor and Licensee that
incorporates these General Terms and by which Licensor licenses Software to
Licensee.
1.11 Licensee means the County of Fresno.
1.12 Licensor means Levi, Ray & Shoup, Inc.
1.13 Software means the software products listed on the License Schedule and such
term shall also include the Documentation and Enhancements.
1.14 Term means the period designated as such in the applicable License Schedule.
2.0 Pricing and Payment Terms.
2.1 Fees. The license fees for the Software shall be set forth on the applicable License
Schedule and shall include maintenance as described in Section 7.0.
2.2 Interest. Licensor reserves the right to charge interest at the rate of 1.5% per month,
or the maximum amount allowed by law, whichever is less, on such unpaid amounts
for each calendar month or fraction thereof that any payment to Licensor is more
than forty-five (45) days in arrears.
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2.3 Taxes. Licensee shall be responsible for the payment of all applicable taxes based
or measured thereon, or on this transaction, and such taxes, excluding taxes based
on Licensor's income. Licensor's invoice shall not include any amount for taxes
unless the same are listed apart from the fees and Licensor is authorized to collect
the same.
2.4 Tax Exempt Licensee. If Licensee is tax exempt, Licensee will not be responsible for, nor
will it be invoiced for any tax, provided Licensor receives a copy of Licensee's tax exempt
certificate prior to the issuance of the applicable invoice.
3.0 Grant of License. Subject to the terms and conditions of the Agreement, Licensor grants,
and Licensee accepts, a non-exclusive, nontransferable license to use the Software for the
Term.
4.0 Restrictions on Use and Audit Rights.
4.1 The Software may only be used in machine-readable form and only by the Licensee
for the internal business purposes of the Licensee and its Affiliates. Notwithstanding
anything to the contrary stated herein, Licensee may not use the Software for the
benefit of unaffiliated third parties who pay, directly or indirectly, for its benefit.
4.2 Licensee may allow its contractors temporary access to the Software and
Documentation, but only to the extent such access is necessary to allow the
Licensee to directly use the Software or its computer systems effectively and
provided that the contractors have signed a nondisclosure agreement which
effectively prohibits those contractors from disclosing or disseminating to third
parties, or using for their own benefit, all or part of the Software and Documentation.
Such nondisclosure agreements do not have to specifically name the Software and
Documentation in order to comply with this section.
4.3 Licensee may keep such copies of the Software as is customary and necessary as
part of its automated back-up system. In addition, Licensee may keep one other
copy of the Software for archival purposes.
4.4 No more than annually, upon written request by Licensor, Licensee shall provide
Licensor with a certified statement which describes how and where the Software is
being used and such certified statement must include any records, reports, or other
information reasonably requested by Licensor to determine Licensee's compliance
with the licensing restrictions in the Agreement. Further, no more than annually,
upon prior written notice, Licensor may visit Licensee's places of business in order
to determine compliance with this Agreement.
4.5 Audits and Inspections. Licensee shall at any time during Licensor's normal
business hours, and upon prior written notice, no more than annually, make
available to the Licensee for examination all of its records and data with respect to
the matters covered by this Agreement. Licensor shall, upon request by Licensee,
permit Licensee to audit and inspect all of such records and data necessary to
ensure Licensor's compliance with the terms of this Agreement. Any such
examinations or audits shall be at the Licensee's expense.
If this Agreement exceeds ten thousand dollars ($10,000.00), Licensor shall be
subject to the examination and audit of the California State Auditor for a period of
three (3) years after final payment under contract (Government Code Section
8546.7).
5.0 Protection of Software and Licensee's Confidential Information.
5.1 Acknowledgment of Trade Secrets. The Agreement does not transfer any ownership
or title in the Software or the Documentation to Licensee and all ownership rights
Version X2.0,June 1,2017 CA0329
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will remain in Licensor or its suppliers. Licensee acknowledges Licensor's
representation that the Software and its Documentation contain valuable trade
secrets and are protected by United States and international copyright laws and
treaties. Licensee may not disclose or make available to third parties the Software,
its Documentation or any portion thereof without Licensor's prior written approval,
except as specifically allowed under Section 4.0. Licensor has the exclusive right to
modify and enhance the Software and its Documentation, and the Licensee agrees
that it will make no effort to reverse engineer, reverse assemble, decompile or
otherwise attempt to derive source code from the Software except as expressly
authorized by applicable law for purposes of achieving interoperability. Licensee
shall not make any attempt to circumvent the technological measure(s) that controls
access to, or use of, the Software.
5.2 Delete Copies. Upon termination of the Agreement, or any Software license granted
pursuant to the Agreement, that is not superseded by another Agreement, Licensee
must immediately delete or otherwise destroy all copies of the applicable Software
and Documentation other than copies which have been created pursuant to
automatic archiving or back-up processes that cannot reasonably be deleted. Upon
request, Licensee shall certify in writing to Licensor its compliance with this
paragraph within five (5) days after such request.
5.3 Proprietary Notices. All copies of the Software, in whole or in part, shall contain all
restrictive and proprietary notices as they appear on the copy of the Software
provided by Licensor. In no event may Licensee copy in whole or in part the
Software or the Documentation without the Licensor's prior written consent except
as allowed in the applicable License Schedule.
5.4 Licensee's Confidential Information. All information, documents or records to which
Licensor has access as a result of the Agreement shall be treated by Licensor as
the Licensee's proprietary information and shall not be disseminated or disclosed to
third parties without Licensee's prior written consent. Licensor agrees not to disclose
Licensee's Confidential Information (defined below) other than to persons in its
organization who have a need to know and who will be required to comply with this
Section. Licensor will not use Licensee's Confidential Information for a purpose
inconsistent with the terms of this Agreement. "Licensee's Confidential Information"
means Licensee's Software, Licensee's documentation, all information and
intellectual property related to Licensee as well as information related to the
business of Licensee. Licensee's Confidential Information will not include: (i)
information publicly known prior to disclosure; (ii) information coming into the lawful
possession of the recipient without any confidentiality obligation; and (iii) information
required to be disclosed pursuant to regulatory action or court order, provided
adequate prior written notice of any request to disclose is given to Licensee.
Licensor will exercise at least the same degree of care to safeguard Licensee's
Confidential Information as it does to safeguard its own proprietary confidential
information, but not less than a reasonable degree of care.
5.5 Injunctive Relief. Nothing contained in the Agreement shall prohibit either party from
seeking injunctive relief or specific performance for violation or threatened violation
of Section 5.0, as both parties agree that a material breach of Section 5.0 would
give rise to irreparable harm not adequately compensable by money damages.
6.0 Warranty Against Infringement.
6.1 Warranty/Exclusive Remedy. Licensor warrants that the Software will be delivered
free of the rightful claim of any third party by way of infringement or misappropriation
of rights arising under the laws of the country in which the Software is licensed.
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LICENSEE'S SOLE AND EXCLUSIVE REMEDY FOR BREACH OF THIS
WARRANTY IS SET FORTH IN SECTIONS 6.2 AND 6.3.
6.2 Licensor's Duty To Indemnify. If a claim is made by a third party against Licensee
that alleges a breach of the warranty set forth in Section 6.1, then Licensor shall
defend against such claim at its own expense and shall indemnify Licensee and
hold it harmless against any demands, costs and expenses, penalties, attorney's
fees, claims and losses, actions, settlement or any judgment, including an award of
attorneys' fees, that may be awarded by a court of competent jurisdiction against
Licensee as a result of the foregoing; provided that Licensee gives Licensor prompt
written notice of such claim, allows Licensor to control the defense, and provides
Licensor with all reasonable cooperation. Further, Licensor shall have no liability or
duty to Licensee for any claim of infringement pursuant to this section if the claim is
based on Licensee's, or third party's addition or modification to the Software when
the claim of infringement is based on the addition or modification and the addition or
modification was not authorized in writing by Licensor.
6.3 Licensor's Right To Correct. If a claim is made by a third party against Licensee that
alleges a breach of the warranty set forth in Section 6.1, or if Licensor believes that
a likelihood of such a claim exists, Licensor shall, in Licensor's sole discretion,
procure for Licensee the right to continue using the Software, modify it to make it
non-infringing but continue to meet the Software's functionality, or replace it with
non-infringing software of like functionality; provided, however, if none of the
foregoing is reasonably available to Licensor, either party may terminate the
applicable Agreement, in which case the Licensee shall return the Software to
Licensor pursuant to Section 5.2 and Licensee's obligation to pay license fees shall
cease and Licensee will be refunded on a pro rata basis any prepaid license fees for
the remainder of the Term.
7.0 Maintenance and Support. The maintenance and support services in this Section 7.0 shall
only be provided in conjunction with the current release of the Software and the release
immediately preceding the current release of the Software and only if no fees are owed
under the Agreement. Licensor shall provide the following maintenance and support
services to Licensee subject to the terms and conditions of the Agreement.
7.1 Telephone support by qualified personnel shall be available between the hours of
8:00 a.m. and 5:00 p.m. Monday through Friday current U.S. Central Time,
excluding Licensor holidays (a list of which for any year shall be made available).
7.2 Emergency telephone support for Critical Problems by qualified personnel shall be
available every day of the year, twenty-four hours a day, with a response time of two
hours or less.
7.3 Licensor maintains a support section on its Web site for all of its Licensees. All
software code and product documentation contained within and made available to
Licensee via the support section shall be a part of the Software.
7.4 Licensor shall make available to the Licensee all Enhancements to the Software.
7.5 Licensor shall make available Enhancements to the Software if and as required to
cause it to operate with new releases of the operating system so long as such
updates are technically and commercially feasible.
8.0 Licensee Obligations. Licensee will: (a) Ensure that the Software is used only as set forth
in the Agreement and operated and maintained in accordance with its Documentation; (b)
Ensure that only adequately trained, competent and authorized persons are allowed to
operate the Software; (c) In the event of an actual or apparent malfunction of the Software,
take all reasonable actions to document or record the form, nature, apparent cause or
Version X2.0, June 1, 2017 CA0329
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symptoms of the malfunction. Upon request, such documents or records must be supplied
or provided to Licensor during the course of problem resolution.
9.0 Date Mechanism. The Software may contain a mechanism that will cause the Software to
cease to operate on the date that is set by Licensor. The date mechanism shall never be
fully disabled during a term license; however, if all payments are timely made, Licensee will
be provided with the necessary license files and/or product keys which will prevent the
Software from being disabled by the date mechanism. Licensor has no remote access to
the Software.
10.0 Warranties, Disclaimers, Remedy.
10.1 Limited Warranty for Services.
a. Limited Warranty for Maintenance and Support Services. Licensor warrants
that it will perform the services detailed in Section 7.0 with reasonable care
and skill and that, during the Term, the Software will function substantially in
accordance with its Documentation. Licensor does not warrant that the
Software will be error free.
b. Limited Warranty for Consulting Services: Licensor shall perform consulting
services under any applicable consulting services agreement governed by
these Terms and Conditions, in a workmanlike manner using reasonable
care and skill.
10.2 NO OTHER WARRANTIES FOR SOFTWARE AND CONSULTING SERVICES.
a. NO OTHER WARRANTIES FOR SOFTWARE: EXCEPT FOR THE
WARRANTIES CONTAINED IN SECTION 6.0 AND IN SECTION 10.1(a),
LICENSOR MAKES NO WARRANTY, EXPRESS OR IMPLIED, CONCERNING
THE SOFTWARE INCLUDING ANY WARRANTY OF MERCHANTABILITY,
ACCURACY, OR FITNESS FOR A PARTICULAR PURPOSE.
b. NO OTHER WARRANTIES FOR CONSULTING SERVICES: EXCEPT FOR
THE EXPRESS LIMITED WARRANTY SET FORTH IN SECTION 10.1(b)
ABOVE, LICENSOR MAKES NO OTHER WARRANTY, EXPRESSED OR
IMPLIED, INCLUDING WITHOUT LIMITATION ANY WARRANTY OF FITNESS
FOR A PARTICULAR PURPOSE OR MERCHANTABILITY.
10.3 EXCLUSIVE REMEDY FOR SOFTWARE AND SERVICES.
a. EXCLUSVIE REMEDY FOR SOFTWARE: LICENSEE'S EXCLUSIVE AND
SOLE REMEDY FOR THE BREACH OF THE WARRANTIES CREATED IN
SECTIONS 10.1(a) AND 10.2(a) IS LIMITED TO REPAIR OF DEFECTS,
REPLACEMENT OF SOFTWARE, OR LICENSEE MAY TERMINATE THE
LICENSE FOR THE APPLICABLE SOFTWARE AND RECEIVE A REFUND OF
LICENSE FEES ACTUALLY PAID TO LICENSOR FOR THE APPLICABLE
SOFTWARE UNDER THE AGREEMENT DURING THE FIRST THREE YEARS
OF THE TERM OR, IF THE TERM IS LESS THAN THREE YEARS, THE
LICENSE FEES ACTUALLY PAID UNDER THE AGREEMENT DURING THE
TERM.
b. EXCLUSIVE REMEDY FOR CONSULTING SERVICES: EXCEPT FOR A
CLAIM FOR PERSONAL INJURY OR TANGIBLE PROPERTY DAMAGE,
LICENSOR'S TOTAL LIABILITY FOR DAMAGES UNDER ANY APPLICABLE
CONSULTING SERVICES AGREEMENT, REGARDLESS OF THE FORM OF
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ACTION OR THEORY OF LIABILITY (INCLUDING CONTRACT, TORT, OR
WARRANTY), SHALL BE LIMITED TO SERVICE FEES ACTUALLY PAID TO
LICENSOR UNDER THIS AGREEMENT. IN NO EVENT SHALL LICENSOR
BE LIABLE FOR ANY INCIDENTAL, CONSEQUENTIAL, SPECIAL, PUNITIVE
OR INDIRECT DAMAGES OR DAMAGES FOR ECONOMIC LOSS OF ANY
KIND (INCLUDING WITHOUT LIMITATION, LOST PROFITS, LOSS OF DATA,
LOSS OF USE OR CLAIMS OF THIRD PARTIES) THAT MIGHT ARISE AS A
RESULT OF THE PERFORMANCE OR BREACH OF CONSULTING
SERVICES SET FORTH IN AN APPLICABLE CONSULTING SERVICES
AGREEMENT GOVERNED BY THESE GENERAL TERMS OR IN ANY WAY
ARISES OUT OF OR IN CONNECTION WITH ANY CONSULTING SERVICES
AGREEMENT GOVERNED BY THESE GENERAL TERMS.
11.0 Exclusions. Licensor's limited warranty in Section 10.1(a) will be void and its service
obligations in Section 7.0 will not apply when: (a) A hardware failure or fault occurs and
causes corruption or loss of the Software or data, although Licensor personnel will use
reasonable efforts to assist if such problems arise; (b) Licensee or a third party interferes
with or modifies the Software and the interference or modification causes corruption or loss
of the Software or data, unless such modification is allowed in the Documentation or with
Licensor's written permission; (c) Licensee fails to implement recommendations to correct
faults previously advised by Licensor or fails to install Enhancements made available
pursuant to the Agreement; or, (d) Licensee is in material breach of the Agreement.
12.0 LIMITATION OF LIABILITY AND CONSEQUENTIAL DAMAGES/INDEPENDENT
CLAUSES.
12.1 EXCEPT FOR CLAIMS UNDER SECTIONS 2.0, 5.0, OR 6.0, EITHER PARTY'S
TOTAL LIABILITY FOR CLAIMS IN ANY WAY ARISING OUT OF OR IN
CONNECTION WITH THE AGREEMENT, REGARDLESS OF THE FORM OF
ACTION OR THEORY OF LIABILITY (INCLUDING CONTRACT, TORT OR
WARRANTY), IS LIMITED TO THE AGGREGATE AMOUNT OF (1) SERVICE
FEES SET FORTH IN AN APPLICABLE SERVICES AGREEMENT, AND (2)
LICENSE FEES SET FORTH IN THE LICENSE SCHEDULE FOR THE FIRST
THREE YEARS OF THE TERM OR, IF THE TERM IS LESS THAN THREE
YEARS, THE AGGREGATE AMOUNT OF LICENSE FEES SET FORTH IN THE
LICENSE SCHEDULE FOR THE TERM. IN NO EVENT, EXCEPT FOR A CLAIM
UNDER SECTIONS 5.0, AND 6.0, SHALL EITHER PARTY BE LIABLE TO THE
OTHER FOR ANY INCIDENTAL, CONSEQUENTIAL, SPECIAL, PUNITIVE, OR
INDIRECT DAMAGES OF ANY KIND (INCLUDING, WITHOUT LIMITATION, LOST
PROFITS, LOSS OF DATA, LOSS OF USE, OR CLAIMS OF THIRD PARTIES)
THAT MIGHT OCCUR AS A RESULT OF THE PERFORMANCE OR BREACH OF
THE AGREEMENT OR IN ANY WAY ARISING OUT OF OR IN CONNECTION
WITH THE AGREEMENT.
12.2 SECTION 12.1 IS INDEPENDENT OF SECTION 10.3 AND SHALL BE VALID AND
ENFORCEABLE WHETHER OR NOT SECTION 10.3 FAILS OF ITS ESSENTIAL
PURPOSE OR IS FOUND TO BE UNCONSCIONABLE.
12.3 No action, regardless of form, arising out of the Agreement may be brought by
either party more than two (2) years after either party has become aware of
the cause of action.
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13.0 Assignment. A party may assign the Agreement without the prior written
permission of the other only in the following circumstances: 1) to an Affiliate; 2)
where all or substantially all of the assets of a party are sold to, or merged or
consolidated with, another Company; or 3) only in the case of the Licensor, where
all or substantially all of the Software licensed hereunder is sold to another
Company. Any other attempted assignment shall be invalid and void.
Notwithstanding anything to the contrary stated herein, no assignment allowed
hereunder shall be valid until the other party receives a valid assignment signed by
both the assignor and assignee transferring all rights and obligations hereunder to
the assignee.
14.0 Termination/Remedies.
14.1 Termination. Each Agreement shall automatically terminate upon expiration
of the Term. Either party may terminate the Agreement before the expiration
of the Term if the other party is in breach of the Agreement and such party
fails to remedy such breach within thirty (30) days after written notice thereof
by the non-breaching party. Further, either party may terminate the
Agreement immediately upon written notice of a breach of Section 5.0.
14.2 Force Majeure. Notwithstanding anything to the contrary stated herein,
neither party shall be liable for any breach of its obligations resulting from
causes beyond its reasonable control including but not limited to fire,
earthquakes, tornadoes, nuclear disasters, acts of terrorism, insurrection or
riots, wrecks or delays in transportation, or regulation of civil or military
authority (an "Event of Force Majeure"). If a default due to an Event of Force
Majeure continues for more than three (3) months then either party may
terminate the Agreement without cause or liability, except that which may
have accrued up to the Event of Force Majeure.
14.3 Effect of Termination. Sections 4.4, 5.0, 6.0, and 12.0 shall survive the
termination of the Agreement and termination of the Agreement is without
prejudice to the rights and obligations of the parties that have accrued up to
and including the date of termination. No refund of fees paid under the
Agreement shall be made in the event of termination unless caused by
Licensor's breach.
14.4 Remedies. All rights and remedies of the parties shall be cumulative but shall
always be limited by Sections 6.0, 10.2, 10.3, and 12.0.
15.0 General and Miscellaneous Clauses.
15.1 Notice/Primary Escalation Contact Information. All notices or demands relating
to indemnification, warranty, or any breach, default, violation or dispute shall be in
writing and shall be delivered personally or sent by certified mail with return receipt
requested or a nationally recognized overnight courier service. Any such notice or
demand shall be deemed to have been delivered on the date of delivery or refusal
as set forth on the return receipt. Any other notice or demand required hereunder
shall be sufficient if sent electronically and shall be deemed to have been delivered
upon confirmation the e-mail was successfully sent by the Party. The Parties agree
that any such electronic notice sent by either Party and receive by the other Party
shall be deemed an authentic original and any signature thereon will be deemed
genuine.
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All written notices shall be sent to the following either via certified mail or
electronically to the physical addresses and/or e-mail addresses listed below.
Licensee Licensor
County of Fresno Levi, Ray & Shoup, Inc.
Chief Informaiton Officer Jenni Manning
333 W. Pontiac Way 2401 W. Monroe Street
Clovis, CA 93612 Springfield, IL 62704
IDSBusinessOffice(a7FesnoCountyCA.gov Jenni.Manning(d-)lrs.com
The persons and their contact information that the Licensee or Licensor can use to
escalate problems or situations related to this Agreement are listed below and may
be updated on an as-needed basis by either Party by notifying the other Party.
Licensee Primary Escalation Contacts Licensor's Primary Exclation Contacts
Contact#1 Issues Contract#1/Business Related Issues
Americo Papaleo David Manning
Information Technology Manager Senior Account Representative
Office Phone: (559) 600-5800 OfficePhone: (217) 793-3800, ext 1628
Email: apapaleo@FresnoCountyCA.gov David.Manning(aD-lrs.com
Contact #2 Issues Contact#2/Contractual Related Issues
Sheri Walden Chris Colliver
Information Technology Division Manager Sr. Contracts Manager, EOM NA
Office Phone: (559) 600-5800 Office Phone: (217) 793-3800, ext. 1641
Email: swalden(cDFresnoCountyCA.gov Email: Chris.ColliverCcD-lrs.com
15.2 Severability. If any provision of the Agreement or the application of a provision to
any Company or circumstance is held invalid, the remainder of the Agreement, or
the application of the provision to Companies or circumstances, other than those as
to which it is held invalid, will not be affected. But if a court rules that any part of
Section 5.1 is not enforceable because it is invalid, then the Agreement in its
entirety may terminate at Licensor's option and Licensee must immediately return all
copies, in whole or in part, of the Software and Documentation. Under these
circumstances, Licensee's obligation to pay future license fees will cease and any
prepaid license fees will be refunded on a pro rata basis.
15.3 Parties Bound. The Agreement shall be binding upon the parties, their successors,
permitted assigns, and legal representatives.
15.4 No Intended Third Party Beneficiaries. The Agreement is for the sole benefit of the
parties and their successors and permitted assigns and the Agreement shall not be
construed as conferring any rights or remedies on any other Company.
15.5 Applicable Law. The Agreement shall be governed by the laws of the State of
California, without giving effect to its choice-of-law provisions. This Agreement shall
not be governed by the provisions of the 1980 United Nations Convention on
Contracts for the International Sale of Goods or the United Nations Convention on
the Limitation Period in the International Sale of Goods.
15.6 Export Compliance. Licensee agrees to comply with all applicable export laws and
regulations of the United States, the EU, the UN and the country of the Installation
Location (collectively, "Export Controls"). Licensee will not, directly or indirectly,
export, re-export, divert, or transfer the Software to any locations, to any end-user,
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or for any end-use, without complying with the Export Controls. Without limiting the
foregoing, the Licensee specifically agrees that it will not export or re-export the
Software (1) to any embargoed country, currently including Cuba, Iran, North
Korea, Sudan and Syria or (2) to any person or Company listed on the denied or
restricted party list, or (3) for any restricted end-use related to the development,
design, production or use of nuclear, chemical or biological weapons or missiles.
15.7 Headings, Gender. All section headings contained in the Agreement are for
convenience of reference only, do not form a part of the Agreement and shall not
affect in any way the meaning or interpretation of the Agreement. Words used
herein, regardless of the number and gender specifically used, shall be deemed and
construed to include any other number, singular or plural, and any other gender,
masculine, feminine, or neuter, as the context requires. Further, reference to a
single section number ending in a zero, e.g., 5.0, is a reference to all of the sections
starting with the same number. For example, a reference to Section 5.0 is a
reference to Sections 5.1, 5.2, 5.3, 5.4, and 5.5 as well.
15.8 Waiver. A waiver of a breach of any term of the Agreement shall not be construed
as a waiver of any later breach or as a waiver of the provision itself. A party's
performance after the other party's breach shall not be construed as a waiver of that
breach.
15.9 Final Agreement/Conflicts. The Agreement constitutes the complete, final and
exclusive expression of the parties' agreement, and supersedes all proposals and
other communications made between the parties concerning the subject matter
hereof. The Agreement cannot be modified except by a written agreement signed by
the parties except as may be set forth in the applicable License Schedule. If there is
a conflict between these General Terms and any License Schedule, the terms of the
License Schedule shall control and prevail. If there is a conflict between these
General Terms and any consulting services agreement, the terms of the consulting
services agreement shall control and prevail. All capitalized terms in any License
Schedule shall have the same meaning as set forth in these General Terms, unless
otherwise defined therein.
15.10 Electronic Delivery. The Software and Documentation (and any previously licensed
software products and documentation) will be made available to Licensee only by
electronic or another mode of intangible delivery. Licensor reserves the right to
change the mode of delivery if the change is generally applicable to all of its
licensees. Certain states under certain circumstances do not assess sales or use
tax on software licenses and software maintenance where the software,
maintenance and documentation are delivered electronically. For all such electronic
transactions Licensor will not assess sales or use tax in applicable states.
Notwithstanding Section 2.3, Licensee hereby agrees to reimburse Licensor for any
and all use or sales tax and attendant interest, if any, that may be assessed against
Licensor by the local taxing authority for such electronic transactions should
Licensor be required to pay the local taxing authority on Licensee's behalf.
15.11 Infrastructure and No Charge Code. Any client-based code of the Software may be
installed on the applicable client whether inside or outside of the Installation
Location. All infrastructure and other no-charge code that is shipped or bundled with
the Software is automatically licensed for the Term as Software pursuant to this
Agreement. To the extent that the Documentation specifies usage rights for the
infrastructure and other no-charge code that are broader than the usage rights
specified in this Agreement, such broader usage rights shall become part of this
Agreement as it applies to such code. Similarly, all fonts that are bundled as a part
of the Software product without charge are licensed for the Term and as set forth in
the Documentation. All supported scripts, utilities or other software code that are
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provided to Licensee pursuant to a trial, evaluation or proof of concept agreement
signed by the parties are automatically licensed for the Term as Software pursuant
to this Agreement unless agreed otherwise in a services agreement or statement of
work signed by the parties.
15.12 Third Party Software. The software programs listed in the License Schedule may
include software programs under the licenses from third parties ("Third Party
Software" and "Third Party License"). Any Third Party Software is licensed to
Licensee subject to the terms and conditions of the corresponding Third Party
License. The Third Party Licenses are located in the Documentation. If the Third
Party Licenses include licenses that provide for the availability of source code (such
as the GNU General Public License) and the corresponding source code is not
included with the Software, then contact Licensor support to learn how to obtain
such source code.
15.13 No Credit Card. The License fees and all other amounts due under this Agreement
cannot be paid by credit card.
15.14 Independent Contractor. In performance of the work, duties and obligations
assumed by Licensor under this Agreement, it is mutually understood and agreed
that Licensor, including any and all of the Licensor's officers, agents, and employees
will at all times be acting and performing as an independent contractor, and shall act
in an independent capacity and not as an officer, agent, servant, employee, joint
venturer, partner, or associate of Licensee. Furthermore, Licensee shall have no
right to control or supervise or direct the manner or method by which Licensor shall
perform its work and function. However, Licensee shall retain the right to administer
this Agreement so as to verify that Licensor is performing its obligations in
accordance with the terms and conditions thereof.
Licensor and Licensee shall comply with all applicable provisions of law and the
rules and regulations, if any, of governmental authorities having jurisdiction over
matters the subject thereof.
Because of its status as an independent contractor, Licensor shall have absolutely
no right to employment rights and benefits available to Licensee's employees.
Licensor shall be solely liable and responsible for providing to, or on behalf of, its
employees all legally-required employee benefits. In addition, Licensor shall be
solely responsible and save Licensee harmless from all matters relating to payment
of Licensor's employees, including compliance with Social Security withholding and
all other regulations governing such matters. It is acknowledged that during the term
of this Agreement, Licensor may be providing services to others unrelated to
Licensee or to this Agreement.
15.15 Insurance
Without limiting Licensee's right to obtain indemnification from Licensor or any third
parties, Licensor, at its sole expense, shall maintain in full force and effect, the
following insurance policies or a program of self-insurance, including but not limited
to, an insurance pooling arrangement or Joint Powers Agreement (JPA) throughout
the term of the Agreement:
15.15.1 Commercial General Liability
Commercial General Liability Insurance with limits of not less than One
Million Dollars ($1,000,000.00) per occurrence and an annual aggregate of
Two Million Dollars ($2,000,000.00). This policy shall be issued on a per
occurrence basis.
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15.15.2 Automobile Liability
Comprehensive Automobile Liability Insurance with limits of not less than
One Million Dollars ($1,000,000.00) per accident for bodily injury and for
property damages. Coverage should include any auto used in connection
with this Agreement.
15.15.3 Professional Liability
If Licensor employs licensed professional staff, (e.g., Ph.D., R.N.,
L.C.S.W., M.F.C.C.) in providing services, Professional Liability Insurance
with limits of not less than One Million Dollars ($1,000,000.00) per
occurrence, Three Million Dollars ($3,000,000.00) annual aggregate
15.15.4 Worker's Compensation
A policy of Worker's Compensation insurance as may be required by the
California Labor Code.
15.15.5 Technology Professional Liability ((Errors and Omissions)
Technology professional liability (errors and omissions) insurance with
limits of not less than Two Million Dollars ($2,000,000.00) per occurrence.
Coverage shall encompass all of the Licensor's duties and obligations that
are the subject of this Agreement. Coverage shall include, but not be
limited to, any and all claims, damages, costs, fees, regulatory fines and
penalties, or forms of legal action involving Cyber Risks.
15.15.6 Cyber Liability
Cyber liability insurance with limits of not less than Two Million Dollars
($2,000,000.00) per occurrence. Coverage shall include, but not be limited
to, any and all claims, damages, costs, fees, regulatory fines and
penalties, or forms of legal action involving Cyber Risks. The cyber liability
policy shall be endorsed to cover the full replacement value of, damage to,
alteration of, loss of, theft of, ransom of, or destruction of intangible
property (including but not limited to information or data) that is in the care,
custody, or control of Licensor.
For purposes of the technology professional liability insurance and the
cyber liability insurance required under this Agreement, Cyber Risks
include, but are not limited to, (i) security breaches, which include
disclosure of, whether intentional or unintentional, information provided by
Licensee, information provided by or obtained from any inmate, or
personal-identifying information relating to any inmate, to an unauthorized
third party; (ii) breach of any of Licensor's obligations under this
Agreement relating to data security, protection, preservation, usage,
storage, transmission, and the like; (iii) infringement of intellectual property
including, but not limited to, infringement of copyright, trademark, and trade
dress; (iv) invasion of privacy, including any release of private information;
(v) information theft by any person or entity, whatsoever; (vi) damage to or
destruction or alteration of electronic information; (vii) extortion related to
Licensor's obligations under this Agreement regarding electronic
information, including information provided by Licensee, information
provided by or obtained from any inmate, or personal-identifying
information relating to any inmate; (viii) network security; (ix) data breach
response costs, including security breach response costs; (x) regulatory
fines and penalties related to Licensor's obligations under this Agreement
regarding electronic information, including information provided by
Licensee, information provided by or obtained from an inmate, or personal-
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identifying information relating to any inmate; and (xi) credit monitoring
expenses.
15.15.7 Additional Requirements Relating to Insurance
Licensor shall obtain endorsements to the Commercial General Liability
insurance naming Licensee, its officers, agents, and employees,
individually and collectively, as additional insured, but only insofar as the
operations under this Agreement are concerned. Such coverage for
additional insured shall apply as primary insurance and any other
insurance, or self-insurance, maintained by Licensee, its officers, agents
and employees shall be excess only and not contributing with insurance
provided under Licensor's policies herein. This insurance shall not be
cancelled or changed without a minimum of thirty (30) days advance
written notice given to Licensee.
Licensor hereby waives its right to recover from Licensee, its officers,
agents, and employees any amounts paid by the policy of worker's
compensation insurance required by this Agreement. Licensor is solely
responsible to obtain any endorsement to such policy that may be
necessary to accomplish such waiver of subrogation, but Licensor's waiver
of subrogation under this paragraph is effective whether or not Licensor
obtains such an endorsement.
Within Thirty (30) days from the date Licensor executes this Agreement,
Licensor shall provide certificates of insurance and endorsement as stated
above for all of the foregoing policies, as required herein, to the County of
Fresno, Chief Information Officer, 333 W Pontiac Way, Clovis CA 93612,
stating that such insurance coverages have been obtained and are in full
force; that Licensor, its officers, agents and employees will not be
responsible for any premiums on the policies; that for such worker's
compensation insurance Licensor has waived its right to recover from the
Licensee, its officers, agents, and employees any amounts paid under the
insurance policy and that waiver does not invalidate the insurance policy;
that such Commercial General Liability insurance names the Licensee, its
officers, agents and employees, individually and collectively, as additional
insured, but only insofar as the operations under this Agreement are
concerned; that such coverage for additional insured shall apply as primary
insurance and any other insurance, or self-insurance, maintained by the
Licensee, its officers, agents and employees, shall be excess only and not
contributing with insurance provided under Licensor's policies herein; and
that this insurance shall not be cancelled or changed without a minimum of
thirty (30) days advance, written notice given to Licensee.
In the event Licensor fails to keep in effect at all times insurance coverage
as herein provided, the Licensee may, in addition to other remedies it may
have, suspend or terminate this Agreement upon the occurrence of such
event.
All policies shall be with admitted insurers licensed to do business in the
State of California. Insurance purchased shall be purchased from
companies possessing a current A.M. Best, Inc. rating of A FSC VII or
better.
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15.16 Disclosure of Self-Dealing Transactions
This provision is only applicable if Licensor is operating as a corporation (a for-profit
or non-profit corporation) or if during the term of this agreement, Licensor changes
its status to operate as a corporation.
Members of Licensor's Board of Directors shall disclose any self-dealing
transactions that they are a party to while Licensor is providing goods or performing
services under this Agreement. A self-dealing transaction shall mean a transaction
to which Licensor is a party and in which one or more of its directors has a material
financial interest. Members of the Board of Directors shall disclose any self-dealing
transactions that they are a party to by completing and signing a Self-Dealing
Transaction Disclosure Form (Exhibit D) and submitting it to Licensee prior to
commencing with the self-dealing transaction or immediately thereafter.
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Exhibit C
HIPAA & HITECH Acts
HEALTH INSURANCE PORTABILITY AND ACCOUNTABILITY ACT
A.The parties to this Agreement shall be in strict conformance with all applicable
Federal and State of California laws and regulations, including but not limited to Sections
5328, 10850, and 14100.2 et seq. of the Welfare and Institutions Code, Sections 2.1 and
431.300 et seq. of Title 42, Code of Federal Regulations (CFR), Section 56 et seq. of the
California Civil Code, Sections 11977 and 11812 of Title 22 of the California Code of
Regulations, and the Health Insurance Portability and Accountability Act (HIPAA), including
but not limited to Section 1320 D et seq. of Title 42, United States Code (USC) and its
implementing regulations, including, but not limited to Title 45, CFR, Sections 142, 160, 162,
and 164, The Health Information Technology for Economic and Clinical Health Act (HITECH)
regarding the confidentiality and security of patient information, and the Genetic Information
Nondiscrimination Act (GINA) of 2008 regarding the confidentiality of genetic information.
Except as otherwise provided in this Agreement, Licensor, as a Business Associate of
Licensee, may use or disclose Protected Health Information (PHI) to perform functions,
activities or services for or on behalf of Licensee, as specified in this Agreement, provided
that such use or disclosure shall not violate the Health Insurance Portability and
Accountability Act (HIPAA), USC 1320d et seq. The uses and disclosures of PHI may not be
more expansive than those applicable to Licensee, as the "Covered Entity" under the HIPAA
Privacy Rule (45 CFR 164.500 et seq.), except as authorized for management,
administrative or legal responsibilities of the Business Associate.
B. Licensor, including its subcontractors and employees, shall protect, from
unauthorized access, use, or disclosure of names and other identifying information, including
genetic information, concerning persons receiving services pursuant to this Agreement,
except where permitted in order to carry out data aggregation purposes for health care
operations [45 CFR Sections 164.504 (e)(2)(i), 164.504 (3)(2)(ii)(A), and 164.504 (e)(4)(i)]
This pertains to any and all persons receiving services pursuant to a Licensee funded
program. This requirement applies to electronic PHI. Licensor shall not use such identifying
information or genetic information for any purpose other than carrying out Licensee's
obligations under this Agreement.
C. Licensor, including its subcontractors and employees, shall not disclose any such
identifying information or genetic information to any person or entity, except as otherwise
specifically permitted by this Agreement, authorized by Subpart E of 45 CFR Part 164 or
other law, required by the Secretary, or authorized by the client/patient in writing. In using or
disclosing PHI that is permitted by this Agreement or authorized by law, Licensor shall make
reasonable efforts to limit PHI to the minimum necessary to accomplish intended purpose of
use, disclosure or request.
D. For purposes of the above sections, identifying information shall include, but not be
limited to name, identifying number, symbol, or other identifying particular assigned to the
individual, such as finger or voice print, or photograph.
E. For purposes of the above sections, genetic information shall include genetic tests
of family members of an individual or individual, manifestation of disease or disorder of family
members of an individual, or any request for or receipt of, genetic services by individual or
family members. Family member means a dependent or any person who is first, second,
third, or fourth degree relative.
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F. Licensor shall provide access, at the request of Licensee, and in the time and
manner designated by Licensee, to PHI in a designated record set (as defined in 45 CFR
Section 164.501), to Licensee in order to meet the requirements of 45 CFR Section 164.524
regarding access to individual's PHI. With respect to Licensee requesting PHI for an
individual, access shall be provided to Licensee within thirty (30) days from request. Access
may be extended if Licensor cannot provide access and provides Licensee with the reasons
for the delay and the date when access may be granted. PHI shall be provided in the form
and format requested by the Licensee.
Licensor shall make any amendment(s) to PHI in a designated record set at the request
of Licensee, and in the time and manner designated by Licensee in accordance with 45 CFR
Section 164.526.
Licensor shall provide to Licensee, in a time and manner designated by Licensee,
information collected in accordance with 45 CFR Section 164.528, to permit Licensee to
respond to a request by the individual for an accounting of disclosures of PHI in accordance
with 45 CFR Section 164.528.
G. Licensor shall report to Licensee, in writing, any knowledge or reasonable belief that
there has been unauthorized access, viewing, use, disclosure, security incident, or breach of
unsecured PHI not permitted by this Agreement of which it becomes aware, immediately and
without reasonable delay and in no case later than two (2) business days of discovery.
Immediate notification shall be made to Licensee's Information Security Officer, within two (2)
business days of discovery. The notification shall include, to the extent possible, the
identification of each individual whose unsecured PHI has been, or is reasonably believed to
have been, accessed, acquired, used, disclosed, or breached. Licensor shall take prompt
corrective action to cure any deficiencies and any action pertaining to such unauthorized
disclosure required by applicable Federal and State Laws and regulations. Licensor shall
investigate such breach and is responsible for all notifications required by law and regulation
or deemed necessary by Licensee and shall provide a written report of the investigation and
reporting required to Licensee's Information Security Officer and Privacy Officer and
Licensee's DPH HIPAA Representative. This written investigation and description of any
reporting necessary shall be postmarked within thirty (30) working days of the discovery of
the breach to the address below:
County of Fresno
Information Technology Services
(559) 600-5800
333 W. Pontiac Way
Clovis, CA 93612
H. Licensor shall make its internal practices, books, and records relating to the use and
disclosure of PHI received from Licensee, or created or received by the Licensor on behalf of
Licensee, in compliance with HIPAA's Privacy Rule, including, but not limited to the
requirements set forth in Title 45, CFR, Sections 160 and 164. Licensor shall make its
internal practices, books, and records relating to the use and disclosure of PHI received from
Licensee, or created or received by the Licensor on behalf of Licensee, available to the
United States Department of Health and Human Services (Secretary) upon demand.
Licensor shall cooperate with the compliance and investigation reviews conducted by
the Secretary. PHI access to the Secretary must be provided during the Licensor's normal
business hours, however, upon exigent circumstances access at any time must be granted.
Upon the Secretary's compliance or investigation review, if PHI is unavailable to Licensor
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and in possession of a Subcontractor, it must certify efforts to obtain the information to the
Secretary.
I. Safeguards
Licensor shall implement administrative, physical, and technical safeguards as required
by the HIPAA Security Rule, Subpart C of 45 CFR 164, that reasonably and appropriately
protect the confidentiality, integrity, and availability of PHI, including electronic PHI, that it
creates, receives, maintains or transmits on behalf of Licensee and to prevent unauthorized
access, viewing, use, disclosure, or breach of PHI other than as provided for by this
Agreement. Licensor shall conduct an accurate and thorough assessment of the potential
risks and vulnerabilities to the confidential, integrity and availability of electronic PHI.
Licensor shall develop and maintain a written information privacy and security program that
includes administrative, technical and physical safeguards appropriate to the size and
complexity of Licensor's operations and the nature and scope of its activities. Upon
Licensee's request, Licensor shall provide Licensee with information concerning such
safeguards.
Licensor shall implement strong access controls and other security safeguards and
precautions in order to restrict logical and physical access to confidential, personal (e.g.,
PHI) or sensitive data to authorized users only. Said safeguards and precautions shall
include the following administrative and technical password controls for all systems used to
process or store confidential, personal, or sensitive data:
1. Passwords must not be:
a. Shared or written down where they are accessible or recognizable by anyone
else; such as taped to computer screens, stored under keyboards, or visible in a
work area;
b. A dictionary word; or
c. Stored in clear text.
2. Passwords must be:
a. Eight (8) characters or more in length;
b. Changed every one hundred (100) days;
c. Changed immediately if revealed or compromised; and
d. Composed of characters from at least three (3) of the following four (4) groups
from the standard keyboard:
1) Upper case letters (A-Z);
2) Lowercase letters (a-z);
3) Arabic numerals (0 through 9); and
4) Non-alphanumeric characters (punctuation symbols).
Licensor shall implement the following security controls on each workstation or portable
computing device (e.g., laptop computer) containing confidential, personal, or sensitive data:
1. Network-based firewall and/or personal firewall;
2. Continuously updated anti-virus software; and
3. Patch management process including installation of all operating system/software
vendor security patches.
Licensor shall utilize a commercial encryption solution that has received FIPS 140-2
validation to encrypt all confidential, personal, or sensitive data stored on portable electronic
media (including, but not limited to, compact disks and thumb drives) and on portable
computing devices (including, but not limited to, laptop and notebook computers).
Licensor shall not transmit confidential, personal, or sensitive data via e-mail or other
internet transport protocol unless the data is encrypted by a solution that has been validated
by the National Institute of Standards and Technology (NIST) as conforming to the Advanced
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Encryption Standard (AES) Algorithm. Licensor must apply appropriate sanctions against its
employees who fail to comply with these safeguards. Licensor must adopt procedures for
terminating access to PHI when employment of employee ends.
J. Mitigation of Harmful Effects
Licensor shall mitigate, to the extent practicable, any harmful effect that is suspected or
known to Licensor of an unauthorized access, viewing, use, disclosure, or breach of PHI by
Licensor or its subcontractors in violation of the requirements of these provisions. Licensor
must document suspected or known harmful effects and the outcome.
K. Licensor's Subcontractors
Licensor shall ensure that any of its contractors, including subcontractors, if applicable,
to whom Licensor provides PHI received from or created or received by Licensor on behalf of
Licensee, agree to the same restrictions, safeguards, and conditions that apply to Licensor
with respect to such PHI and to incorporate, when applicable, the relevant provisions of
these provisions into each subcontract or sub-award to such agents or subcontractors.
L. Employee Training and Discipline
Licensor shall train and use reasonable measures to ensure compliance with the
requirements of these provisions by employees who assist in the performance of functions or
activities on behalf of Licensee under this Agreement and use or disclose PHI and discipline
such employees who intentionally violate any provisions of these provisions, including
termination of employment.
M. Termination for Cause
Upon Licensee's knowledge of a material breach of these provisions by Licensor,
Licensee shall either:
1. Provide an opportunity for Licensor to cure the breach or end the violation and
terminate this Agreement if Licensor does not cure the breach or end the
violation within the time specified by Licensee; or
2. Immediately terminate this Agreement if Licensor has breached a material term
of these provisions and cure is not possible.
3. If neither cure nor termination is feasible, the Licensee's Privacy Officer shall
report the violation to the Secretary of the U.S. Department of Health and
Human Services.
N. Judicial or Administrative Proceedings
Licensee may terminate this Agreement in accordance with the terms and conditions of
this Agreement as written hereinabove, if: (1) Licensor is found guilty in a criminal proceeding
for a violation of the HIPAA Privacy or Security Laws or the HITECH Act; or (2) there is a
finding or stipulation that the Licensor has violated a privacy or security standard or
requirement of the HITECH Act, HIPAA or other security or privacy laws in an administrative
or civil proceeding in which the Licensor is a party.
O. Effect of Termination
Upon termination or expiration of this Agreement for any reason, Licensor shall return or
destroy all PHI received from Licensee (or created or received by Licensor on behalf of
Licensee) that Licensor still maintains in any form, and shall retain no copies of such PHI. If
return or destruction of PHI is not feasible, it shall continue to extend the protections of these
provisions to such information, and limit further use of such PHI to those purposes that make
the return or destruction of such PHI infeasible. This provision shall apply to PHI that is in the
possession of subcontractors or agents, if applicable, of Licensor. If Licensor destroys the
PHI data, a certification of date and time of destruction shall be provided to the Licensee by
Licensor.
P. Disclaimer
Licensee makes no warranty or representation that compliance by Licensor with these
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provisions, the HITECH Act, HIPAA or the HIPAA regulations will be adequate or satisfactory
for Licensor's own purposes or that any information in Licensor's possession or control, or
transmitted or received by Licensor, is or will be secure from unauthorized access, viewing,
use, disclosure, or breach. Licensor is solely responsible for all decisions made by Licensor
regarding the safeguarding of PHI.
Q. Amendment
The parties acknowledge that Federal and State laws relating to electronic data security
and privacy are rapidly evolving and that amendment of these provisions may be required to
provide for procedures to ensure compliance with such developments. The parties
specifically agree to take such action as is necessary to amend this agreement in order to
implement the standards and requirements of HIPAA, the HIPAA regulations, the HITECH
Act and other applicable laws relating to the security or privacy of PHI. Licensee may
terminate this Agreement upon thirty (30) days written notice in the event that Licensor does
not enter into an amendment providing assurances regarding the safeguarding of PHI that
Licensee in its sole discretion, deems sufficient to satisfy the standards and requirements of
HIPAA, the HIPAA regulations and the HITECH Act.
R. No Third-Party Beneficiaries
Nothing express or implied in the terms and conditions of these provisions is intended
to confer, nor shall anything herein confer, upon any person other than Licensee or Licensor
and their respective successors or assignees, any rights, remedies, obligations or liabilities
whatsoever.
S. Interpretation
The terms and conditions in these provisions shall be interpreted as broadly as
necessary to implement and comply with HIPAA, the HIPAA regulations and applicable State
laws. The parties agree that any ambiguity in the terms and conditions of these provisions
shall be resolved in favor of a meaning that complies and is consistent with HIPAA and the
HIPAA regulations.
T. Regulatory References
A reference in the terms and conditions of these provisions to a section in the HIPAA
regulations means the section as in effect or as amended.
U. Survival
The respective rights and obligations of Licensor as stated in this Exhibit shall survive
the termination or expiration of this Agreement.
V. No Waiver of Obligations
No change, waiver or discharge of any liability or obligation hereunder on any one or
more occasions shall be deemed a waiver of performance of any continuing or other
obligation, or shall prohibit enforcement of any obligation on any other occasion.
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Exhibit D
SELF )EALJNG TRANSACTION DISCLOSURE FORM
In order to conduct business with the County of Fresno (hereinafter referred to as "County"),
members of a contractor's board of directors must disclose any self-dealing transactions that
they are a party to while providing goods, performing services, or both for the County. A self-
dealing transaction is defined below:
"A self-dealing transaction means a transaction to which the corporation is a party and in which
one or more of its board members has a material financial interest"
The definition above will be utilized for purposes of completing this disclosure form.
INSTRUCTIONS
(1) Enter board member's name, job title (if applicable), and date this disclosure is being
made.
(2) Enter the board member's company/agency name and address.
(3) Describe in detail the nature of the self-dealing transaction that is being disclosed to the
County. At a minimum, include a description of the following:
a. The name of the agency/company with which the corporation has the transaction;
and
b. The nature of the material financial interest in the Corporation's transaction that
the board member has.
(4) Describe in detail why the self-dealing transaction is appropriate based on applicable
provisions of the Corporations Code.
(5) Form must be signed by the board member that is involved in the self-dealing transaction
described in Sections (3) and (4).
(1) Company Board Member Information:
Name: Date
Job
Title:
(2) Company/Agency Name and Address:
(3) Disclosure (Please describe the nature of the self-dealing transaction you are a party
to):
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(4) Explain why this self-dealing transaction is consistent with the requirements of
Corporations Code 6233 (a):
5 Authorized Signature
Signatur Date:
e:
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