HomeMy WebLinkAboutP-23-401 Pen-Link Ltd.pdf CO,U County of Fresno
INTERNAL SERVICES DEPARTMENT
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PROCUREMENT AGREEMENT
Agreement Number P-23-401
August 8, 2023
Pen-Link, Ltd
5944 Vander Voort Dr.
Lincoln, Nebraska 68516
The County of Fresno (County) hereby contracts with Pen-Link, Ltd (Contractor)to provide PLX software
maintenance and support in accordance with the text of this agreement, Attachment"A", by this reference
made a part hereof.
TERM: This Agreement shall become effective June 1st, 2023 and shall remain in effect through May 31st
2026.
EXTENSION: This Agreement may be extended for two (2) additional one (1)year periods by the mutual
written consent of all parties.
MINIMUM ORDERS: Unless stated otherwise there shall be no minimum order quantity. The County
reserves the right to increase or decrease orders or quantities.
CONTRACTOR'S SERVICES: Contractor shall perform the services as described in Attachment"A"
attached, at the rates set forth in Attachment"A".
ORDERS: Orders will be placed on an as-needed basis by County of Fresno, Sheriff's Department under
this contract.
PRICES: Prices shall be firm for the contract period.
MAXIMUM: In no event shall services performed and/or fees paid under this Agreement be in excess of fifty
four thousand, five hundred twenty nine dollars and eighty three cents ($54,529.83).
ADDITIONAL ITEMS: The County reserves the right to negotiate additional items to this Agreement as
deemed necessary. Such additions shall be made in writing and signed by both parties.
DELIVERY: The F.O.B. Point shall be the destination within the County of Fresno. All orders shall be
delivered complete as specified. All orders placed before Agreement expiration shall be honored under the
terms and conditions of this Agreement.
DEFAULT: In case of default by Contractor, the County may procure the articles/services from another
source and may recover the loss occasioned thereby from any unpaid balance due the Contractor or by any
other legal means available to the County. The prices paid by County shall be considered the prevailing
market price at the time such purchase is made. Inspection of deliveries or offers for delivery, which do not
meet specifications, will be at the expense of Contractor.
333 W. Pontiac Way, Clovis, CA 93612 / (559) 600-7110
"The County of Fresno is an Equal Employment Opportunity Employer
PROCUREMENT AGREEMENT NUMBER: P-23-401 Page 2
Pen-Link, Ltd
August 8, 2023
INVOICING: An itemized invoice shall be sent to requesting County department in accordance with invoicing
instructions included in each order referencing this Agreement. The Agreement number must appear on all
shipping documents and invoices. Invoice terms shall be Net 45 Days.
INVOICE TERMS: Net forty-five (45)days from the receipt of invoice.
TERMINATION: The County reserves the right to immediately terminate this Agreement upon written notice
to the Contractor. In the event of such termination, the Contractor shall be paid for satisfactory services or
supplies provided to the date of termination.
LAWS AND REGULATIONS: The Contractor shall comply with all laws, rules and regulations whether they
be Federal, State or municipal, which may be applicable to Contractor's business, equipment and personnel
engaged in service covered by this Agreement.
AUDITS AND RETENTION: Terms and conditions set forth in the agreement associated with the purchased
goods are incorporated herein by reference. In addition, the Contractor shall maintain in good and legible
condition all books, documents, papers, data files and other records related to its performance under this
contract. Such records shall be complete and available to Fresno County, the State of California, the federal
government or their duly authorized representatives for the purpose of audit, examination, or copying during
the term of the contract and for a period of at least three years following the County's final payment under the
contract or until conclusion of any pending matter(e.g., litigation or audit), whichever is later. Such records
must be retained in the manner described above until all pending matters are closed.
LIABILITY: The Contractor agrees to:
Pay all claims for damage to property in any manner arising from Contractor's operations under this
Agreement.
Indemnify, save and hold harmless, and at County's request defend the County, its officers, agents and
employees from any and all claims for damage or other liability, including costs, expenses (including
attorney's fees and costs), causes of action, claims or judgments resulting out of or in any way connected
with Contractor's performance or failure to perform by Contractor, its agents, officers or employees under this
Agreement, and from any and all costs and expenses (including attorney's fees and costs), damages,
liabilities, claims, and losses occurring or resulting to any person, firm or corporation who may be injured or
damaged by the performance, or failure to perform, of Contractor, its officers, agents, or employees under
this Agreement.
INSURANCE: Without limiting the COUNTY's right to obtain indemnification from CONTRACTOR or any
third parties, CONTRACTOR, 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:
A. Commercial General Liability: Commercial General Liability Insurance with limits of not less than Two
Million Dollars ($2,000,000.00) per occurrence and an annual aggregate of Four Million Dollars
($4,000,000.00). This policy shall be issued on a per occurrence basis. County may require specific
coverage including completed operations, product liability, contractual liability, Explosion-Collapse-
Underground, fire legal liability or any other liability insurance deemed necessary because of the nature
of the contract.
B. 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.
C. Professional Liability: If Contractor 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.
D. Worker's Compensation: A policy of Worker's Compensation insurance as may be required by the
California Labor Code.
P-23-401 Pen-Link,Ltd
PROCUREMENT AGREEMENT NUMBER: P-23-401 Page 3
Pen-Link, Ltd
August 8, 2023
Additional Requirements Relating to Insurance:
Contractor shall obtain endorsements to the Commercial General Liability insurance naming the County of
Fresno, 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 County, its officers,
agents and employees shall be excess only and not contributing with insurance provided under Contractor's
policies herein. This insurance shall not be cancelled or changed without a minimum of thirty (30) days
advance written notice given to County.
Contractor hereby waives its right to recover from County, its officers, agents, and employees any amounts
paid by the policy of worker's compensation insurance required by this Agreement. Contractor is solely
responsible to obtain any endorsement to such policy that may be necessary to accomplish such waiver of
subrogation, but Contractor's waiver of subrogation under this paragraph is effective whether or not
Contractor obtains such an endorsement.
Within Thirty (30)days from the date Contractor signs and executes this Agreement, Contractor shall provide
certificates of insurance and endorsement as stated above for all of the foregoing policies, as required
herein, to the County of Fresno, Sheriff's Office, 2200 Fresno Street, Fresno, CA 93721 stating that such
insurance coverage have been obtained and are in full force; that the County of Fresno, its officers, agents
and employees will not be responsible for any premiums on the policies; that such Commercial General
Liability insurance names the County of Fresno, 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 County, its officers, agents and employees, shall be excess only and not
contributing with insurance provided under Contractor'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 County.
Certificates of Insurance are to include the contract number at the top of the first page.
In the event Contractor fails to keep in effect at all times insurance coverage as herein provided, the County
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.
COMING ON COUNTY PROPERTY TO DO WORK: Contractor agrees to provide maintain and furnish
proof of Comprehensive General Liability Insurance with limits of not less than $500,000 per occurrence.
INDEPENDENT CONTRACTOR: In performance of the work, duties and obligations assumed by Contractor
under this Agreement, it is mutually understood and agreed that Contractor, including any and all of
Contractor'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 the County. Furthermore, County shall have no right to control or supervise
or direct the manner or method by which Contractor shall perform its work and function. However, County
shall retain the right to administer this Agreement so as to verify that Contractor is performing its obligations
in accordance with the terms and conditions thereof. Contractor and County 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, Contractor shall have absolutely no right to employment
rights and benefits available to County employees. Contractor shall be solely liable and responsible for
providing to, or on behalf of, its employees all legally-required employee benefits. In addition, Contractor
shall be solely responsible and save County harmless from all matters relating to payment of Contractor's
employees, including compliance with Social Security, withholding, and all other regulations governing such
P-23-401 Pen-Link,Ltd
PROCUREMENT AGREEMENT NUMBER: P-23-401 Page 4
Pen-Link, Ltd
August 8, 2023
matters. It is acknowledged that during the term of this Agreement, Contractor may be providing services to
others unrelated to the County or to this Agreement.
NON-ASSIGNMENT: Neither party shall assign, transfer or sub-contract this Agreement nor their rights or
duties under this Agreement without the written consent of the other party.
AMENDMENTS: This Agreement constitutes the entire Agreement between the Contractor and the County
with respect to the subject matter hereof and supersedes all previous negotiations, proposals, commitments,
writings, advertisements, publications, Request for Proposals, Bids and understandings of any nature
whatsoever unless expressly included in this Agreement. This Agreement supersedes any and all terms set
forth in Contractor's invoice. This Agreement may be amended only by written addendum signed by both
parties.
INCONSISTENCIES: In the event of any inconsistency in interpreting the documents which constitute this
Agreement, the inconsistency shall be resolved by giving precedence in the following order of priority: (1)the
text of this Agreement (excluding Attachment"A); (2)Attachment"A".
GOVERNING LAWS: This Agreement shall be construed, interpreted and enforced under the laws of the
State of California. Venue for any action shall only be in County of Fresno.
ELECTRONIC SIGNATURES: The parties agree that this Agreement may be executed by electronic
signature as provided in this section.
A. An "electronic signature" means any symbol or process intended by an individual signing this Agreement
to represent their signature, including but not limited to (1) a digital signature; (2) a faxed version of an
original handwritten signature; or(3) an electronically scanned and transmitted (for example by PDF
document) of a handwritten signature.
B. Each electronic signature affixed or attached to this Agreement (1) is deemed equivalent to a valid
original handwritten signature of the person signing this Agreement for all purposes, including but not
limited to evidentiary proof in any administrative or judicial proceeding, and (2) has the same force and
effect as the valid original handwritten signature of that person.
C. The provisions of this section satisfy the requirements of Civil Code section 1633.5, subdivision (b), in
the Uniform Electronic Transaction Act (Civil Code, Division 3, Part 2, Title 2.5, beginning with section
1633.1).
D. Each party using a digital signature represents that it has undertaken and satisfied the requirements of
Government Code section 16.5, subdivision (a), paragraphs (1)through (5), and agrees that each other
party may rely upon that representation.
This Agreement is not conditioned upon the parties conducting the transactions under it by electronic means
and either party may sign this Agreement with an original handwritten signature.
Please acknowledge your acceptance by returning all pages of this Agreement to my office via email or
USPS.
Please refer any inquiries in this matter to Chanvathei Lonh, Purchasing Analyst, at(559) 600-7110 or
clonh(cDfresnocountyca.gov .
P-23-401 Pen-Link,Ltd
PROCUREMENT AGREEMENT NUMBER: P-23-401 Page 5
Pen-Link, Ltd
August 8, 2023
FOR THE COUNTY OF FRESNO
Gary Co rn u e I I e Digitally signed by Gary Cornuelle
Date:2023.08.28 09:10:56-07-00'
Gary E. Cornuelle
Purchasing Manager
333 W. Pontiac Way
Clovis, CA 93612
GEC:CL
P-23-401 Pen-Link,Ltd
PROCUREMENT AGREEMENT NUMBER: P-23-401 Page 6
Pen-Link,Ltd
August 8,2023
CONTRACTOR TO COMPLETE:
Company: PenLink, Ltd
Type of Entity:
❑ Individual ❑ Limited Liability Company
❑ Sole Proprietorship ❑ Limited Liability Partnership
0 Corporation ❑ General Partnership
5944 VanDervoort Drive Lincoln NE 68372
Address City State Zip
402-421-8857 402-421-9287 accounting@penlink.com
TELEPHONE NUMBER FAX NUMBER E-MAILADDRESS
Print
Title:Name& Pat Severson, CFO P. Kevin Pope CEO
Print Name 8�Title:
Dot*Wmd by PW Severson
Pat Severson- :zoz3.oe.1s 1o:�o:as
Signature: -Dann Signature: 7�
ACCOUNTING USE ONLY
ORG No_: 31112425
Account No_: 7309
Requisition No.: 3111247009
(08/2022)
P-23-401 Pen-Link,Ltd
PROCUREMENT AGREEMENT NUMBER: P-23-401 Attachment "A" Page 1 of 4
Pen-Link, Ltd
August 8, 2023
ATTACHMENT'A"
PENLOINK
Company Address 5944 Vandervoort Dr. Quote Number 00031487
Lincoln,Nebraska 68516 Created Date 8/3/2023
United States
Bill To: Ship To:
Fresno County Sheriffs Office Fresno County Sheriffs Office
Harpreet Singh Harpreet Singh
2200 Fresno Street 2200 Fresno Street
Fresno,California 93721 Fresno,California 93721
United States United States
Prepared By John Spomer Expiration Date 8/31/2023
Freight Terms N/A Payment Terms Net 45
Quantity Product Name Sales Price Discount . .
1 PLX SOFTWARE MAINTENANCE AND SUPPORT-STANDARD USD 44,993.60 USD 0.00 USD 44,993.60
1 PenLink Academy Training Subscription USD 9,536.23 USD 0.00 USD 9,536.23
Subtotal USD 54,529.83
Discount USD 0.00
Tax USD 0.00
Total price USD 54,529.83
6/1/23—5/31/24—PLX Software Maintenance and Support-Standard-$8,474.75
6/1/23—5/31124—Training Subscription-$1,796.19
6/1/24—5/31/25-PLX Software Maintenance and Support-Standard-$8,728.99
6/1/24—5/31/25—Training Subscription-$1,850.08
6/1/25—5/31/26-PLX Software Maintenance and Support-Standard-$8,990.86
6/1/25—5/31/26—Training Subscription-$1,905.58
6/1/26—5/31/27-PLX Software Maintenance and Support-Standard-$9,260.59
6/1/26—5/31/27—Training Subscription-$1,962.75
6/1/27—5/31/28-PLX Software Maintenance and Support-Standard-$9,538.41
6/1/27—5/31/28—Training Subscription-$2,021.63
Please note,year 4&5 are optional.
The Training Subscription encompasses the following benefits:
•Unlimited seats to all Live Online(virtual)classes for all users
Pen-Link,Ltd is a U.S.-Based Small Business DUNS:195956636/TIN:47-0707585/CAGE:OK6H9
This document contains confidential and proprietary information and is the copyrighted property of Pen-Link,Ltd.Distribution of this document
within the receiving agency or company is permitted,but only to such personnel as may be required to meet the goals of the project for which
this document was provided.Recipients of this document may not reproduce it,in part or in whole,in any form,or convey its contents to
external agencies by any means,without the express written consent of Pen-Link,Ltd.This document may not be distributed,in part or in
whole,in any form,to any commercial,non-government entity.
P-23-401 Pen-Link,Ltd
PROCUREMENT AGREEMENT NUMBER: P-23-401 Attachment "A" Page 2 of 4
Pen-Link, Ltd
August 8, 2023
PENLOINK
Quote
•Unlimited seats to all webinars for all users
•Unlimited access to over 160 self-paced modules in the Online Learning Library for all users
•4 seats to in-person classes per Training Subscription cycle.
Pen-Link,Ltd,Maintenance and Support Terms and Conditions
1.Terminology
The following terms and definitions apply throughout this document.
1.1.Pen-Link Software.Pen-Link Software is software developed and manufactured by Pen-Link,Ltd.
1.2.Pen-Link Customer(also"Customer").A Pen-Link Customer,or Customer,is any agency or other entity that has one or more
current,valid Licenses for Pen-Link Software purchased from or through Pen-Link,Ltd.
Pen-Link,Ltd,Maintenance and Support Terms and Conditions
1.3.Basic Technical Support Package.Entitles our customers to normal business hours telephone support at Pen-Link,Ltd.s
published number and/or assistance via e-mail.
1.4.Standard Maintenance and Support.Standard Maintenance is a Maintenance option that includes Software Updates,Software
Upgrades,and Basic Technical Support as defined herein.
1.5.Premium Maintenance and Support.Premium Maintenance is a Maintenance option that includes Software Updates,Software
Upgrades,and Premium Technical Support as defined herein.
1.6.Software Update.A Software Update is an enhancement including additions,changes,and bug fixes to Pen-Link Software that is
already in the applicable commercial market.Software Updates occur within the same major version number of an existing software
product.For example,replacing Pen-Link v8.1.29.0 with Pen-Link v8.1.30.0 would constitute a Software Update.Such an update is
often referred to as a New Build of the Pen-Link Software.
1.7.Software Upgrade.A Software Upgrade is the replacement of an older major version of an existing Pen-Link Software product or
products,with a newer major version of a Pen-Link Software product or products,to the extent required to maintain the same
operational functionality that was supported by the Pen-Link Software prior to the upgrade.For example,upgrading from Pen-Link
Version 7 to Pen-Link Version 8(where 8 is the newer major version)would constitute a Software Upgrade,so long as the installation
of the newer version of the PenLink Software supported at least the same operational functionality that the Customer had under
Pen-Link version 7.Upgrades do not apply to new software products that Pen-Link,Ltd.may release to the commercial market from
time to time in the future.
1.8.Basic Technical Support(also"Basic Support").Basic Technical Support is a Support option that includes telephone-based
Technical Support for the Pen-Link Software licensed by the Customer.Basic Technical Support also includes assistance via email or
other automated processes such that Pen-Link,Ltd.may deem fit to offer.Basic Technical Support may be obtained by contacting
Pen-Link,Ltd.via its published,main telephone number(currently 402-421-8857),its general support email account
(support@penlink.com),or its World Wide Web site(www.penlink.com).Basic Technical Support is available Monday through Friday,
from 8:00 AM to 5:00 PM Central time,except for holidays.
1.9.Premium Technical Support(also"Premium Support").Premium Technical Support is a Support option that includes all of the
support services offered with Basic Technical Support(Section 1.8),plus Emergency After-Hours support for live communication
interception and collection operations.Emergency After-Hours support services may be accessed through methods,including
telephone access,that are provided to the customer at the time of purchase.Emergency After-Hours support services are available
Monday through Friday,from 5:01 PM-7:59 AM Central time and all day Saturday&Sunday,including holidays.
1.10.Maintenance and Support Agreement("Agreement').This Maintenance and Support Agreement is the Agreement between
Pen-Link,Ltd.and the Customer regarding the terms and conditions under which the Maintenance and Support Services described in
this document are purchased and provided.
2.Software
2.1.Maintenance is an optional service offered by Pen-Link Ltd.to augment a purchase of Pen-Link Software. Maintenance may be
purchased by a Pen-Link Customer along with,or subsequent to,the purchase of Pen-Link Software.
2.2.Maintenance is offered only pursuant to a Maintenance and Support Agreement between the Customer and Pen-Link,Ltd.
2.3.Pen-Link,Ltd.offers two levels of Maintenance that a Customer may purchase:Standard Maintenance and Premium
Maintenance,as defined in Sections 1.4 and 1.5 respectively.
2.4.Maintenance applies only to software developed and manufactured by Pen-Link,Ltd.Maintenance does not apply to software
developed and manufactured by companies other than Pen-Link,Ltd.Unless otherwise specified in a separate,written agreement
Pen-Link,Ltd is a U.S.-Based Small Business DUNS:195956636/TIN:47-0707585/CAGE:OK6H9
This document contains confidential and proprietary information and is the copyrighted property of Pen-Link,Ltd.Distribution of this document
within the receiving agency or company is permitted,but only to such personnel as may be required to meet the goals of the project for which
this document was provided.Recipients of this document may not reproduce it,in part or in whole,in any form,or convey its contents to
external agencies by any means,without the express written consent of Pen-Link,Ltd.This document may not be distributed,in part or in
whole,in any form,to any commercial,non-government entity.
P-23-401 Pen-Link,Ltd
PROCUREMENT AGREEMENT NUMBER: P-23-401 Attachment "A" Page 3 of 4
Pen-Link, Ltd
August 8, 2023
PENLOINK
Quote
between Pen-Link,Ltd.and the Customer,to which Pen-Link,Ltd.is a signatory party,Maintenance does not include updates,
upgrades,or bug fixes to,or new releases of,any third-party software or hardware purchased through Pen-Link,Ltd.or with the
assistance of Pen-Link,Ltd.Support for third party software and hardware products bundled with Pen-Link,Ltd.licensed Pen-Link
Software is available only according to the third-party manufacturer's support policies.
2:5.All Maintenance deliveries are subject to the terms and conditions of the applicable End User License Agreement EULA for the
Licensed Software.
3.Technical Support("Support")
3.1.Technical Support Support is an optional service offered by Pen-Link,Ltd.to support a Customer in the authorized use of licensed
PenLink Software.
3.2.Support is offered only pursuant to a Maintenance and Support Agreement between the Customer and Pen-Link,Ltd.
3.3.Pen-Link,Ltd.offers two levels of Technical Support:Basic Technical Support and Premium Technical Support,as defined in
Sections 1.8 and 1.9 respectively.
3.4.Pen-Link,Ltd.will make every reasonable attempt to answer a Customers Support questions and address a Customer s Support
concerns.However,Support is offered on a good faith,diligent effort basis only,and Pen-Link,Ltd.may not be able to resolve every
request for Support.
3.5.Technical Support is provided for ongoing,operational use of the licensed Pen-Link Software;Support is not intended to be a
substitute for training or professional services necessary for the implementation or system redesign of the licensed Pen-Link Software,
which are outside the scope of this agreement.All such services,including without limitation,training,on-site assistance,consultation,
custom programming and other software customizations,network design,and database and network administration,may be provided
pursuant to separate agreements with and by Pen-Link,Ltd.
3.6.Unless otherwise specified in a separate,written agreement between Pen-Link,Ltd.and the Customer,to which Pen-Link,Ltd.is
a signatory party,Support is available only for the current and immediately preceding version of the licensed Pen-Link Software.
Support for a previous version of Pen-Link Software is provided up to a maximum of eighteen(18)months after the release of the
current version of software,provided that the Customer and Pen-Link,Ltd.are parties to a current Maintenance and Support
Agreement.
3.7.Unless otherwise specified in a separate,written agreement between Pen-Link,Ltd.and the Customer,to which Pen-Link,Ltd.is
a signatory party,Support does not include any of the following:
3.7.1.Support for database products or so-called DBMS or Database Management Systems,including without limitations,setup and
alteration and/or configuration of such products,and resolution of errors related directly to such products.
3.7.2.Resolving network,workstation,or other environmental errors not directly related to the licensed Pen-Link Software.3.7.3.
Support for any licensed Pen-Link Software working on or with any version of any database,Database Management System,
operating system,or other hardware or software product or system that is not specifically identified as interoperable and compatible
with the specific version of the license Pen-Link Software being used.
3.7.4.Support for any alpha,beta,or other preproduction release of any software,including Pen-Link Software.3.7.5. Support for any
changes to Pen-Link Software made outside of the product s scope by a customer or by any third party.3.7.6. Support for any
licensed Pen-Link Software that is used for a purpose,or in a manner,for which it was not designed.
4.Terms and Conditions
4.1.Maintenance and Support Agreements are options made available by Pen-Link,Ltd.for a Customer to purchase.
4.2.Maintenance and Support Agreements are offered on an annual basis.
4.3.Unless otherwise specified in a separate,written agreement between Pen-Link,Ltd.and the Customer,to which Pen-Link,Ltd.is
a signatory party,Maintenance and Support Agreements will renew automatically at the end of each annual term,provided that the
Customer pays the applicable renewal fees.
4.4.Unless otherwise specified in a separate,written agreement between Pen-Link,Ltd.and the Customer,to which Pen-Link,Ltd.is
a signatory party,a Customer s Maintenance and Support Agreement is to be paid at the start of each annual term.
4.5.Payment.The Customer will be invoiced prior to any annual Maintenance and Support term(initial or renewal terms).The
Customer agrees to make payment to Pen-Link,Ltd.no later than thirty(30)days from the date of the invoice,unless otherwise
agreed upon in writing.Unless otherwise instructed,the Customer will make payment directly to Pen-Link,Ltd.
4.6.Pen-Link,Ltd.s obligations hereunder are subject to the Customer s timely payment for Maintenance and Support.Failure of the
Customer to pay fees in a timely manner for any term of Maintenance and Support may,at the sole discretion of Pen-Link,Ltd.,result
in the termination or suspension of Maintenance and Support services.
4.7.Lapses and Reinstatement.If a Customers Maintenance and Support agreement terminates as a result of expiration or otherwise
pursuant to this Agreement,and the Customer decides to reinstate the Agreement,the Customer will be required to pay the applicable
Maintenance and Support fees for the lapsed period(the time elapsed between the Agreement expiring and subsequently being
reinstated),plus a reinstatement fee equal to 10%of the fees for the lapsed period.
4.8.Taxes.The Customer is responsible for payment of all applicable taxes,value added taxes,or other taxes(however designated)
related to the Maintenance and Support of the Licensed Software,unless otherwise agreed upon and stated in writing.
4.9.This Agreement will automatically terminate for each Licensed Pen-Link Software product upon termination of the EULA
Pen-Link,Ltd is a U.S.-Based Small Business DUNS:195956636/TIN:47-0707585/CAGE:OK6H9
This document contains confidential and proprietary information and is the copyrighted property of Pen-Link,Ltd.Distribution of this document
within the receiving agency or company is permitted,but only to such personnel as may be required to meet the goals of the project for which
this document was provided.Recipients of this document may not reproduce it,in part or in whole,in any form,or convey its contents to
external agencies by any means,without the express written consent of Pen-Link,Ltd.This document may not be distributed,in part or in
whole,in any form,to any commercial,non-government entity.
P-23-401 Pen-Link,Ltd
PROCUREMENT AGREEMENT NUMBER: P-23-401 Attachment "A" Page 4 of 4
Pen-Link, Ltd
August 8, 2023
PENLOINK
Quote
corresponding to such Pen-Link Software product.
4.10.The Customer may terminate this Agreement for Convenience,but the Customer will not be entitled to a refund of any paid fees
in such an event.
4.11.Additional Orders.Orders by the Customer for additional Pen-Link Software products or additional licenses of Pen-Link Software
products will increase the Customers Maintenance and Support fees under this Agreement.
4.12.We reserve the right to impose a convenience fee of 2.0%for credit card processing on amounts over$10,000.
5.Warranty and Liability Disclaimer
5.1.Pen-Link,Ltd.warrants that the Maintenance and Support services provided to the Customer under this Agreement shall be
performed with due care,and in a professional and workmanlike manner.Pen-Link,Ltd.does not otherwise warrant the accuracy or
completeness of any services provided pursuant this Agreement.PEN-LINK,LTD.DISCLAIMS ANY AND ALL OTHER
WARRANTIES,EXPRESS,IMPLIED OR OTHERWISE,IN CONNECTION WITH THE SUBJECT OF THIS AGREEMENT.IN NO
EVENT,UNDER ANY THEORY OF LAW,SHALL EITHER PARTY AND/OR ITS AFFILIATES BE LIABLE TO THE OTHER FOR ANY
INDIRECT,SPECIAL,INCIDENTAL OR CONSEQUENTIAL DAMAGES OR LOST PROFITS AND/OR ITS AFFILIATES ARE
ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.PEN-LINK,LTD.S LIABILITY UNDER THIS AGREEMENT SHALL NOT
EXCEED THE PREPAID AND UNUSED PORTION OF THE CUSTOMER S MAINTENANCE AND SUPPORT FEES PAID TO
PEN-LINK,LTD.PEN-LINK,LTD.SPECIFICALLY DISCLAIMS ALL RESPONSIBILITY FOR ANY SERVICES PROVIDED BY ANY
PARTNER OR ANY OTHER THIRD PARTY.
5.2.It is the sole responsibility of the Customer to make and maintain adequate backup copies of software and data.
5.3.In no event will Pen-Link,Ltd.be responsible for lost data.
6.Miscellaneous
6.1.Entire Agreement.This Agreement constitutes the entire Agreement between the Customer and Pen-Link,Ltd.related to the
subject matter hereof,and additions or modifications shall be binding upon the parties only if the same shall be in writing and duly
executed by the Customer and a duly authorized officer of Pen-Link,Ltd.The Licensed Pen-Link Software is licensed under a separate
End User License Agreement(EULA)and professional services,if any,are provided under a separate professional services
agreement.The terms and conditions of any Customer purchase order are only binding on Pen-Link,Ltd.if they are agreed to in
writing by an authorized Pen-Link,Ltd.officer and in a document other than the purchase order.
6.2.Waiver.The waiver or failure of either party to exercise in any respect any right shall not be deemed a waiver of any further or
future right.
6.3.Assignment.The Customer may assign this Agreement only in connection with a proper and valid assignment of the
corresponding EULA to the extent permitted there under;provided that the Customer gives written notice of such assignment to
Pen-Link,Ltd.Pen-Link,Ltd.may freely assign this Agreement to a purchaser of that portion of Pen-Link Ltd.s business to which this
Agreement relates,to the surviving corporation in the event of a merger,and to any affiliate or third-party whom Pen-Link authorizes to
provide Maintenance and Support for the Licensed Pen-Link Software of the nature contemplated hereby.
Pen-Link,Ltd is a U.S.-Based Small Business DUNS:195956636/TIN:47-0707585/CAGE:OK6H9
This document contains confidential and proprietary information and is the copyrighted property of Pen-Link,Ltd.Distribution of this document
within the receiving agency or company is permitted,but only to such personnel as may be required to meet the goals of the project for which
this document was provided.Recipients of this document may not reproduce it,in part or in whole,in any form,or convey its contents to
external agencies by any means,without the express written consent of Pen-Link,Ltd.This document may not be distributed,in part or in
whole,in any form,to any commercial,non-government entity.
P-23-401 Pen-Link,Ltd