HomeMy WebLinkAboutAgreement A-19-073 with Daptiv Solutions LLC.pdf-1 -
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A G R E E M E N T
THIS AGREEMENT (“Agreement”) is made and entered into this _______ day of ___________, 2019
(“Effective Date”), by and between the COUNTY OF FRESNO, a political subdivision of the State of
California, ("COUNTY"), and Daptiv Solutions LLC., a Washington Limited Liability Company, whose
corporate address is at 1111 Third Ave., Suite 700, Seattle, WA 98101, ("CONTRACTOR").
R E C I T A L S
WHEREAS, COUNTY desires to license software as a service of CONTRACTOR’S software called
Daptiv PPM (“Subscription Service”) as well as installation, training, data conversion services
(“Professional Services”), from CONTRACTOR, as set forth in the COUNTY’s Request for Proposal
(RFP) 18-063, dated July 3, 2018; and
WHEREAS, CONTRACTOR provided a Response to COUNTY’s RFP No 18-063, dated August 14,
2018, in which it offered certain software license, installation, training, and software maintenance of
Software by CONTRACTOR, along with professional services from CONTRACTOR, as a solution to
meet the stated needs of the COUNTY; and
WHEREAS, COUNTY and CONTRACTOR desire to enter into this Agreement for the license and
access to the Service, and for maintenance and support of the Subscription Service.
NOW, THEREFORE, for and in consideration of the promises herein, and for other good and valuable
consideration, the parties agree as follows:
W I T N E S S E T H
I.DOCUMENTS CONSTITUTING AGREEMENT
This Agreement includes COUNTY’s RFP No 18-063, and CONTRACTOR’s Response to RFP No
18-063, and these documents are incorporated by this reference.
II.DEFINITIONS
The following terms used throughout this Agreement shall be defined as follows:
Agreement No. 19-073
12th February
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Change Control Process:
Process used by the Information Services Division of COUNTY’s Internal Services Department
(ISD) to inform staff of new or updated production use systems.
License:
The meaning assigned to the term 'License” as defined in Section III-A of this Agreement and the
rights and obligations which it creates under the laws of the United States of America and the
State of California including without limitation, copyright and intellectual property law.
Monies:
The terms "Monies", "Charges", "Price", and "Fees" will be considered to be equivalent.
Public Records:
Public Records includes any writing containing information relating to the conduct of the public's
business that is prepared, owned, used, or retained by any state or local agency, regardless of
physical form or characteristics.
Supplier:
The terms "Supplier", "Vendor", and "Daptiv Solutions, LLC" all refer to CONTRACTOR and are
considered to be equivalent throughout this Agreement.
Documentation:
The documentation relating to the Subscription Service, and all manuals, reports, brochures,
sample runs, specifications and other materials comprising such documentation provided by
CONTRACTOR in connection with the Subscription Service pursuant to this Agreement.
User:
The terms "User", "Customer" and "Licensee" all refer to COUNTY and are considered to be
equivalent throughout this Agreement.
III.OBLIGATIONS OF THE CONTRACTOR
A)SUBSCRIPTION SERVICES
1)GRANT OF LICENSE
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CONTRACTOR grants to COUNTY and COUNTY accepts a non-exclusive, non-
transferable, worldwide right during the Term to access the Subscription Service and permit
the number of individual users specified in the Order to use the Subscription Service solely
for the COUNTY’s own internal business purposes (“Authorized Users”). Unless otherwise
specified, the term “quantity” as used in the Order Invoice refers to the number of
Authorized Users that are permitted to access the associated Subscription Service.
2)OWNERSHIP
The parties acknowledge and agree that, as between CONTRACTOR and
COUNTY, title and full ownership of all rights in and to the Subscription Service,
Documentation, and all other materials provided to COUNTY by CONTRACTOR under the
terms of this Agreement shall remain with CONTRACTOR. COUNTY will take reasonable
steps to protect trade secrets of the Subscription Service and Documentation. Ownership
of all copies is retained by CONTRACTOR. COUNTY may not disclose or make available
to third parties the Subscription Service or Documentation or any portion thereof.
CONTRACTOR shall own all right, title and interest in and to all corrections, modifications,
enhancements, programs, and work product conceived, created or developed, alone or
with COUNTY or others, as a result of or related to the performance of this Agreement,
including all proprietary rights therein and based thereon. Except and to the extent
expressly provided herein, CONTRACTOR does not grant to COUNTY any right or license,
express or implied, in or to the Subscription Service and Documentation or any of the
foregoing. The parties acknowledge and agree that, as between CONTRACTOR and
COUNTY, full ownership of all rights in and to all COUNTY data, whether in magnetic or
paper form, including without limitation printed output, are the exclusive property of
COUNTY.
3)POSSESSION, USE AND UPDATE OF SOFTWARE
COUNTY agrees that only COUNTY will use the Subscription Service for its own
internal purposes. CONTRACTOR may, at reasonable times, inspect COUNTY’s premises
and equipment to verify that all of the terms and conditions of this license are being
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observed. CONTRACTOR may create, from time to time, updated versions of the
Subscription Service and Documentation and CONTRACTOR shall make such Updates
available to COUNTY. All Updates shall be licensed under the terms of this Agreement.
COUNTY agrees to follow the prescribed instructions for updating Subscription Service and
Documentation provided to COUNTY by CONTRACTOR.
4)DELIVERY OF SUBSCRIPTION SERVICE AND MATERIALS
COUNTY shall not rent, lease, license, distribute, sell, transfer, or assign this
license, the Subscription Service, or the Documentation, or any of the information
contained therein other than COUNTY data, to any other person or entity, whether on a
permanent or temporary basis, and any attempt to do so will constitute a breach of this
Agreement. No right or license is granted under this Agreement for the use or other
utilization of the licensed programs, directly or indirectly, for the benefit of any other person
or entity, except as provided in this Agreement.
5)RESTRICTIONS ON USE:
COUNTY shall not (i) license, sublicense, sell, resell, transfer, assign, distribute or
otherwise commercially exploit or make available to any third party the Subscription
Service or the Documentation in any way; (ii) modify or make derivative works based upon
the Subscription Service or the Documentation; (iii) create Internet “links” to the
Subscription Service or “frame” or “mirror” any Documentation on any other server or
wireless or Internet-based device; (iv) send spam or otherwise duplicative or unsolicited
messages in violation of applicable law; (v) send or store infringing, obscene, threatening,
libelous, or otherwise unlawful or tortious material, including material harmful to children or
material that violates third party privacy rights; (iv) send or store material containing
software viruses, worms, Trojan horses or other harmful computer code, files, scripts,
agents or programs; (vii) interfere with or disrupt the integrity or performance of the
Subscription Service or the data contained therein, including but not limited to COUNTY
Data; (viii) attempt to gain unauthorized access to the Subscription Service or its related
systems or networks; (ix) reverse engineer or access the Subscription Service in order to
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(a) build a competitive product or service, (b) build a product using similar ideas, features,
functions or graphics of the Subscription Service, or (c) copy any ideas, features, functions
or graphics of the Subscription Service.
8)INTELLECTUAL PROPERTY, TRADEMARK AND COPYRIGHT
CONTRACTOR retains ownership of the Subscription Service, any portions or copies
thereof, and all rights therein. CONTRACTOR reserves all rights not expressly granted to
COUNTY. This License does not grant COUNTY any rights in connection with any
trademarks or service marks of CONTRACTOR, its suppliers or licensors. All right, title,
interest and copyrights in and to the Subscription Service and the accompanying
Documentation and any copies of the Subscription Service are owned by CONTRACTOR,
its suppliers or licensors. All title and intellectual property rights in and to the content which
may be accessed through use of the Subscription Service are the property of the
respective content owner and may be protected by applicable copyright or other intellectual
property laws and treaties. This License grants COUNTY no rights to use such content.
B)SERVICES TO BE PROVIDED BY CONTRACTOR TO COUNTY
1)ACCESS
Commencing on the latter of the Effective Date of this Agreement or the
Subscription Term Start Date in the Order, CONTRACTOR shall make available to
COUNTY the unique instance of the CONTRACTOR Subscription Service for use by the
number of Authorized Users specified under the terms of this Agreement.
2)TRAINING
CONTRACTOR will conduct “train-the-trainer” training of COUNTY staff at a
COUNTY-designated location and at a time approved in writing by COUNTY, as
specified in CONTRACTOR’s Response to RFP No 18-063.
3)DOCUMENTATION
Upon request, CONTRACTOR shall make available to COUNTY Documentation,
which shall consist of electronic media files. CONTRACTOR shall provide new
Documentation corresponding to all new Upgrades. COUNTY may print additional copies
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of all documentation. All Documentation shall be used by COUNTY only for the purposes
identified within this Agreement.
C)SYSTEM MAINTENANCE AND SUPPORT BY CONTRACTOR
CONTRACTOR’s Service Level Agreement policy and Customer Response Policy which are
incorporated herein, are also attached as Exhibit 3.
D)ADDITIONAL SYSTEM MAINTENANCE SERVICES BY CONTRACTOR
CONTRACTOR may provide additional maintenance services (“Additional Maintenance and
Support Services” or “Additional Maintenance Services”) at an additional charge. Charges will be
as identified in Section VII-F of this Agreement; or, if not included in this Agreement, charges will
be at current prices in effect at the time goods or services are provided. Any Additional
Maintenance and Support Services requested by COUNTY and determined by CONTRACTOR to
be billable by CONTRACTOR must be identified as a chargeable service prior to the service being
performed and must be approved in writing in advance by COUNTY’s Contract Administrator.
Additional Maintenance Services include, but are not limited to, the following:
1)ADDITIONAL TRAINING
Initial administrator and report generation training is included in the initial
implementation. Additional training at a County facility is available upon request by
COUNTY at an additional charge under the terms of this Agreement. Requests for
additional training will be reviewed by CONTRACTOR and must be requested in writing in
advance by COUNTY’s Contract Administrator. Charges will be at rates identified in this
Agreement.
2)DATA AND SYSTEM CORRECTIONS
Data Corrections include any corrective actions accomplished by CONTRACTOR
on-site or via VPN which are necessary due to COUNTY errors or unauthorized source
code or data access by COUNTY. Unauthorized access to the data is defined as any
COUNTY editing of data through other than normal system usage as defined in
Documentation. Unauthorized access to source code is defined as any COUNTY access
whatsoever to system source code. Services provided by CONTRACTOR are not billable
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when they result from errors caused by Subscription Service or instruction provided by
CONTRACTOR.
3)COUNTY SITE VISITS
Site visits to COUNTY sites, as may be requested in writing by COUNTY and that
are within the scope of the project services, are available for reasons such as, but not
limited to, additional training on hardware or software usage. Site visits outside of the
scope of project services will be reviewed by the CONTRACTOR and must be requested in
writing in advance by COUNTY’s Contract Administrator. Charges will be at rates identified
in this Agreement.
4)CUSTOM PROGRAMMING
Requests for supplemental programming or customization of system features not
covered under this Agreement are available to COUNTY. Such requests will be reviewed
by CONTRACTOR and must be requested in writing in advance by the COUNTY’s
Contract Administrator. Charges will be at rates identified in this Agreement.
E)CONTRACTOR PROJECT COORDINATOR
Upon execution of this Agreement, CONTRACTOR shall appoint a Project Coordinator who
will act as the primary contact person to interface with COUNTY for implementation, maintenance
and support of Subscription Service. CONTRACTOR will notify COUNTY in writing of the Project
Coordinator’s name and contact information upon execution of this Agreement.
F)SYSTEM UPDATES AND NEW PRODUCTS
1)SYSTEM UPDATES
From time to time CONTRACTOR will develop and make available Updates to the
Subscription Service. Updates shall be subject to the terms and conditions of this
Agreement and shall be deemed licensed Subscription Service hereunder and will be made
available to COUNTY at no additional charge to COUNTY. Updates will be made available
to COUNTY at the discretion of CONTRACTOR but will not be unreasonably withheld.
IV.OBLIGATIONS OF THE COUNTY
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A)COUNTY CONTRACT ADMINISTRATOR
COUNTY appoints its Chief Information Officer (CIO) or his designee, as COUNTY's Contract
Administrator with full authority to deal with CONTRACTOR in all matters concerning this
Agreement.
B)SAFEGUARDING SYSTEM SOFTWARE
COUNTY will follow its present practices to safeguard Subscription Service accessed by the
COUNTY by CONTRACTOR. A copy of COUNTY’S “Information Technology (IT) Standards and
Preferences” will be made available upon request.
C)COUNTY PROJECT MANAGER
Upon execution of this Agreement, COUNTY’s Contract Administrator shall designate one
individual from ISD who will function as Project Manager (“Project Manager”). The Project
Manager and COUNTY personnel shall have the necessary and appropriate training and
experience to implement the terms of this Agreement. COUNTY acknowledges CONTRACTOR’S
reliance on same.
D)OTHER COUNTY OBLIGATIONS
a)Network connectivity and troubleshooting assistance.
b)Ability to monitor network traffic and isolate bottlenecks.
c)Technical assistance concerning the integration with existing COUNTY systems (if
applicable).
V.TERM
This Agreement shall become effective on the Effective Date for a term of three (3) years, with the
option for two (2) automatic additional one (1) year renewal periods, upon payment of Annual Fees
unless either party provides written notice of its intention not to renew to the other party at least sixty
(60) days prior to expiration of the commencement of the optional renewal period.
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VI.TERMINATION
A)NON-ALLOCATION OF FUNDS
The terms of this Agreement, and the services to be provided thereunder, are contingent on
the approval of funds by the appropriating government agency. Should sufficient funds not be
allocated, the services provided may be modified, or this Agreement terminated, at any time by
giving the CONTRACTOR thirty (30) days advance written notice.
B)BREACH OF CONTRACT
The COUNTY may immediately suspend or terminate this Agreement in whole or in part, where in
the determination of the COUNTY there is:
1)An illegal or improper use of funds;
2)A failure to comply with any term of this Agreement;
3)A substantially incorrect or incomplete report submitted to the COUNTY that
constitutes a material breach;
4)Improperly performed service that constitutes a material breach.
In no event shall any payment by the COUNTY constitute a waiver by the COUNTY of any breach
of this Agreement or any default which may then exist on the part of the CONTRACTOR. Neither
shall such payment impair or prejudice any remedy available to the COUNTY with respect to the
breach or default. The COUNTY shall have the right to demand of the CONTRACTOR the
repayment to the COUNTY of any funds disbursed to the CONTRACTOR under this Agreement,
which in the judgment of a court of law were not expended in accordance with the terms of this
Agreement.
CONTRACTOR may, upon thirty (30) days prior written notice to COUNTY, terminate this
Agreement if COUNTY fails to comply with any material term or condition of this Agreement unless
COUNTY cures such failure within such thirty (30) day period, or other such timeframe as may be
mutually agreed upon in writing by the parties.
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VII.COMPENSATION/INVOICING
COUNTY agrees to pay CONTRACTOR and CONTRACTOR agrees to receive compensation as
follows:
A)IMPLEMENTATION AND TRAINING SERVICES
Software implementation shall be invoiced at the following rates. CONTRACTOR will provide
Statements of Work which shall be approved by the Director of Internal Services or his/her
designee.
Role Hourly Rate
Project Manager $175.00
Solution Architect $250.00
Delivery Consultant $200.00
Technical Consultant – Report Development $175.00
Business Analyst (Technical Services) $175.00
In addition to the hourly rates above, training for COUNTY staff may be included in a
Statement of Work. In no event shall the compensation for implementation services exceed
$200,000.
B)SOFTWARE SUBSCRIPTION FEES:
Software Subscription fees for the initial three (3) year term of this Agreement shall be as
follows:
Product Name Annual Rate
Daptiv PPM Enterprise User Subscription (minimum 500 Users) $395.00
Daptiv PPM Enterprise User Subscription (minimum 300 Users) $495.00
Daptiv PPM Portfolio Manager Subscription $795.00
Daptiv PPM Manager Subscription $595.00
Daptiv PPM Team Member Subscription $395.00
Daptiv PPM Timesheet Subscription $225.00
Daptiv Connect-Platform $5,000.00
Daptiv Active Directory Connector $3,000.00
The COUNTY may increase the number of user subscriptions throughout the agreement as
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needed. Additional user subscriptions will modify quantity of user subscriptions above and will be
pro-rated through the next renewal date.
Upon each of the optional one-year extensions, CONTRACTOR may increase the annual
Software Subscription rates by up to 3%.
C)OPTIONAL PREMIER SUPPORT
The COUNTY may purchase additional Premier Support as described in Exhibit 3 after the
implementation services above are completed.
D)TOTAL CONTRACT AMOUNT
In no event shall the compensation for all services performed under this Agreement exceed
$650,000.00 during the initial three (3) year term of this Agreement. If the first one-year extension
is executed, the total compensation for the entire four (4) year term of this Agreement shall not
exceed $876,500. If the second one-year extension is executed, the total compensation for the
entire possible five (5) year term of this Agreement shall not exceed $1,100,000. It is understood
that all expenses incidental to CONTRACTOR'S performance of services under this Agreement
shall be borne by CONTRACTOR.
E)INVOICING
CONTRACTOR shall submit invoices (which must reference the provided contract number),
either electronically or via mail to the County of Fresno ISD, Accounts Payable, 333 W. Pontiac
Way, Clovis, CA 93612 or Accounts Payable (ISDBusinessOffice@FresnoCountyCA.gov).
COUNTY will pay CONTRACTOR within forty-five (45) days of receipt of an approved invoice, by
mail addressed to CONTRACTOR’s remittance address at Daptiv Solutions LLC., 1111 Third Ave.,
Suite 700, Seattle, WA 98101.
VIII.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 the
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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 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.
IX.CONFIDENTIALITY
A Party receiving Information (defined below) of the other will not disclose such Information other
than to persons in its organization who have a need to know and who will be required to comply with this
Section. The Party receiving Information will not use such Information for a purpose inconsistent with the
terms of this Agreement. “Information” means the Subscription Service, Documentation and all
information and intellectual property related thereto (including, but not limited to all databases provided
to COUNTY by CONTRACTOR whether created by CONTRACTOR or its third party licensors such as,
without limitation, the mapping product databases) as well as information related to the business of
CONTRACTOR or COUNTY. Information will not include: (i) information publicly known prior to
disclosure; (ii) information coming into the lawful possession of the recipient without any confidentiality
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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 the Party whose information
is to be disclosed. Each Party will exercise at least the same degree of care to safeguard the
confidentiality of the other’s Information as it does to safeguard its own proprietary confidential
information, but not less than a reasonable degree of care.
X.MODIFICATION
Any matters of this Agreement may be modified from time to time by the written consent of all the
parties without, in any way, affecting the remainder.
XI.NON-ASSIGNMENT
Neither party shall assign, transfer or sub-contract this Agreement nor their rights or duties under
this Agreement without the prior written consent of the other party (which shall not be unreasonably
withheld, delayed or conditioned).
XII.WARRANTY, LIMITATION ON LIABILITY, AND HOLD HARMLESS
Each party represents and warrants to the other that it is duly authorized to execute this Agreement and
perform the obligations set forth herein. CONTRACTOR represents and warrants that: (i) it shall make the
Subscription Services available according to the SLA and CRA; and (ii) any Professional Services
performed pursuant to an SOW shall be performed (1) in accordance with the delivery schedule, if any (2)
with a high degree of care and that it possesses the requisite competence, skills and training for its
assigned role, and (3) in a diligent, workmanlike and professional manner.
EXCEPT AS EXPLICITLY SET FORTH IN THIS SECTION, THE SUBSCRIPTION SERVICES AND
ANY COMPANY TRAINING, INSTRUCTION AND SUPPORT OR OTHER PROFESSIONAL SERVICES
PROVIDED IN CONNECTION WITH THIS AGREEMENT ARE PROVIDED STRICTLY ON AN "AS IS"
BASIS. ALL CONDITIONS, REPRESENTATIONS AND WARRANTIES, WHETHER EXPRESS,
IMPLIED, STATUTORY OR OTHERWISE, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED
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WARRANTY OF MERCHANTABILITY, TITLE, FITNESS FOR A PARTICULAR PURPOSE, OR
SATISFACTORY RESULTS ARE HEREBY DISCLAIMED TO THE MAXIMUM EXTENT PERMITTED BY
APPLICABLE LAW BY CONTRACTOR, ITS SUPPLIERS AND ITS LICENSORS.
CUSTOMER ACKNOWLEDGES AND AGREES THAT SUBSCRIPTION SERVICES MAY BE
SUBJECT TO INTERRUPTION, LIMITATIONS, DELAYS, AND OTHER PROBLEMS INHERENT IN THE
USE OF INTERNET APPLICATIONS AND ELECTRONIC COMMUNICATIONS. CONTRACTOR IS NOT
RESPONSIBLE FOR ANY SUCH DELAYS, DELIVERY FAILURES, OR ANY OTHER DAMAGE
RESULTING FROM EVENTS BEYOND CONTRACTOR’S REASONABLE CONTROL, WITHOUT
REGARD TO WHETHER SUCH EVENTS ARE REASONABLY FORESEEABLE BY COMPANY.
7.4 Limitation. CUSTOMER’S EXCLUSIVE REMEDY AND COMPANY’S, ITS SUPPLIERS’ AND
LICENSORS’ TOTAL AGGREGATE LIABILITY RELATING TO, ARISING OUT OF, IN CONNECTION
WITH, OR INCIDENTAL TO THIS AGREEMENT, WHETHER FOR BREACH OF CONTRACT, OR
BREACH OF WARRANTY, SHALL BE LIMITED TO THE ACTUAL DIRECT DAMAGES INCURRED BY
CUSTOMER, UP TO THE TOTAL AMOUNT OF FEES RECEIVED BY CONTRACTOR FOR THE
TWELVE (12) MONTHS PRIOR TO THE EVENT GIVING RISE TO THE LIABILITY. THE EXISTENCE
OF MULTIPLE CLAIMS OR SUITS UNDER OR RELATED TO THIS AGREEMENT WILL NOT
ENLARGE OR EXTEND THIS LIMITATION OF DAMAGES. THE PROVISIONS OF THIS SECTION DO
NOT WAIVE OR LIMIT CONTRACTOR’S ABILITY TO OBTAIN INJUNCTIVE OR OTHER EQUITABLE
RELIEF FOR BREACH OF THIS AGREEMENT.
7.5 Exclusion of Certain Damages and Limitations of Types of Liability. IN NO EVENT WILL
CONTRACTOR BE LIABLE FOR ANY SPECIAL, CONSEQUENTIAL, INCIDENTAL, INDIRECT OR
PUNITIVE DAMAGES, OR LOST PROFITS OR LOST REVENUE ARISING OUT OF OR RELATED TO
THE SUBJECT MATTER OF THIS AGREEMENT OR THE USE OF OR INABILITY TO USE THE
SUBSCRIPTION SERVICE OR PROFESSIONAL SERVICES. THE FOREGOING EXCLUSION AND
LIABILITY LIMITATIONS APPLY EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY
OF SUCH DAMAGES AND EVEN IN THE EVENT OF STRICT OR PRODUCT LIABILITY.
CONTRACTOR agrees to indemnify, save, hold harmless, and at COUNTY'S request, defend the
COUNTY, its officers, agents, and employees from any and all costs and expenses (including attorney’s
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fees and costs), damages, liabilities, claims, and losses, and any and all claims, damages, costs, fees,
regulatory fines and penalties, and forms of legal action involving Cyber Risks, occurring or resulting to
COUNTY in connection with a third party claim to the extent due the gross negligence or willful misconduct
by CONTRACTOR, its officers, agents, or employees under this Agreement, and from any and all costs
and expenses (including attorney’s fees and costs), damages, liabilities, claims, and losses, and any and
all claims, damages, costs, fees, regulatory fines and penalties, and forms of legal action involving Cyber
Risks, 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.
In the event of a claim of alleged infringement of patent rights, copyright, trade secret rights, or
intellectual property rights, to the fullest extent permitted by law, CONTRACTOR agrees to and shall
indemnify, save, hold harmless and defend COUNTY, including its officers, officials, agents, and
employees from any and all demands, costs and expenses, penalties, attorney’s fees and court costs,
damages of any nature whatsoever (including, without limitation, injury or damage to or loss or destruction
of property), judgments (including, without limitation, amounts paid in settlement and amounts paid to
discharge judgments), liabilities, claims and losses, suits, actions or proceedings of every name, kind and
description occurring or resulting to COUNTY, out of or in connection with any claim that is based on the
infringement (or assertions of infringement) of any of patent rights, copyright, trade secret rights, or
intellectual property rights with respect to the Subscription Services. If, in any suit, action, proceeding or
claim relating to the foregoing, a temporary restraining order or preliminary injunction is granted,
CONTRACTOR shall make every reasonable effort to secure the suspension of the injunction or
restraining order. If, in any such suit, action, proceeding or claim, the Subscription Services is held to
constitute an infringement and its use is enjoined, CONTRACTOR shall immediately (a) pay the
reasonable direct out-of-pocket costs and expenses to secure a license to use such infringing work,
replace the infringing work or modify the same so that it becomes non-infringing, and (b) make every
reasonable effort to secure for the COUNTY a license, at no cost to COUNTY, authorizing COUNTY’s
continued use of the infringing work. If CONTRACTOR is unable to secure such license within a
reasonable time, CONTRACTOR, at its own expense and without impairing performance requirements as
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part of this Agreement, shall either replace the affected services, software, or any Equipment provided by
CONTRACTOR as part of this Agreement, combination or process thereof, with non-infringing services,
software, or other equipment, or modify the same so that they become non-infringing.
A party seeking indemnification hereunder shall promptly notify in writing the other party of any claim for
which defense and indemnification is sought. Each party agrees that it will not enter into any settlement or
compromise of any claim that: (a) results, or creates a likelihood of a result, that in any way diminishes or
impairs any right or defense that would otherwise exist absent such settlement or compromise; or (b)
constitutes or includes an admission of liability, fault, negligence or wrongdoing on the part of the other
party without first notifying the other party in writing. Each indemnifying party has the sole right to control
the defense of any claim for which it is providing indemnification hereunder with counsel mutually
acceptable to the parties. The indemnified party may, at its own expense, participate in the defense of any
such claim.
The provisions of this Section XII shall survive the termination of this Agreement.
XIII.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 coverages
including completed operations, products liability, contractual liability, Explosion-Collapse-
Underground, fire legal liability or any other liability insurance deemed necessary because of the
nature of this contract.
B)AUTOMOBILE LIABILITY
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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.
E)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
CONTRACTOR’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.
F)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 CONTRACTOR.
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
COUNTY, 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 CONTRACTOR’s
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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
CONTRACTOR’s obligations under this Agreement regarding electronic information, including
information provided by COUNTY, 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 CONTRACTOR’s obligations under this Agreement regarding electronic information,
including information provided by COUNTY, information provided by or obtained from an inmate,
or personal-identifying information relating to any inmate; and (xi) credit monitoring expenses.
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 executes this Agreement,
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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, Chief Information Officer, 333
W Pontiac Way, Clovis CA 93612, stating that such insurance coverages 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 for such worker’s compensation insurance the
CONTRACTOR has waived its right to recover from the COUNTY, 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 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.
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.
XIV.AUDITS AND INSPECTIONS
CONTRACTOR shall at any time during CONTRACTOR’S normal business hours, and upon prior
written notice of not less than 20 days, not more than once (1X) in any 12 month period, make available
to the COUNTY for examination all of its records and data with respect to the matters covered by this
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Agreement to ensure CONTRACTOR'S compliance with the terms of this Agreement. Any such
examinations or audits shall be at the COUNTY’S expense.
If this Agreement exceeds ten thousand dollars ($10,000.00), CONTRACTOR 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).
XV.NOTICES
The persons and their addresses having authority to give and receive notices under this Agreement
include the following:
COUNTY CONTRACTOR
Chief Information Officer Daptiv Solutions LLC.
333 W. Pontiac Way 1111 Third Ave. Suite 700
Clovis, CA 93612 Seattle, WA 98101
ISDBusinessOffice@FresnoCountyCA.gov info@changepoint.com
All notices between the COUNTY and CONTRACTOR provided for or permitted under this
Agreement must be in writing and delivered either by personal service, by first-class United States
mail, by an overnight commercial courier service, or by secure e-mail transmission. A notice
delivered by personal service is effective upon service to the recipient. A notice delivered by first-
class United States mail is effective three COUNTY business days after deposit in the United
States mail, postage prepaid, addressed to the recipient. A notice delivered by an overnight
commercial courier service is effective one COUNTY business day after deposit with the overnight
commercial courier service, delivery fees prepaid, with delivery instructions given for next day
delivery, addressed to the recipient. A notice delivered by secure e-mail is effective when
transmission to the recipient is completed (but, if such transmission is completed outside of
COUNTY business hours, then such delivery shall be deemed to be effective at the next beginning
of a COUNTY business day), provided that the sender maintains a read-receipt of the completed
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transmission. For all claims arising out of or related to this Agreement, nothing in this section
establishes, waives, or modifies any claims presentation requirements or procedures provided by
law, including but not limited to the Government Claims Act (Division 3.6 of Title 1 of the
Government Code, beginning with section 810).
PRIMARY ESCALATION CONTACT INFORMATION
The persons and their contact information that the COUNTY or CONTRACTOR can use to
escalate problems or situations. These contacts are listed in Exhibit 2 and may be updated on an
as-needed basis by either Party by notifying the other Party.
XVI.GOVERNING LAW
Venue for any action arising out of or related to this Agreement shall only be in Fresno County,
California.
The rights and obligations of the parties and all interpretation and performance of this Agreement shall
be governed in all respects by the laws of the State of California.
XVII.DISCLOSURE OF SELF-DEALING TRANSACTIONS
This provision is only applicable if the CONTRACTOR is operating as a corporation (a for-profit or
non-profit corporation) or if during the term of this agreement, the CONTRACTOR changes its status to
operate as a corporation.
Members of the CONTRACTOR’s Board of Directors shall disclose any self-dealing transactions
that they are a party to while CONTRACTOR is providing goods or performing services under this
agreement. A self-dealing transaction shall mean a transaction to which the CONTRACTOR 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 1) and submitting it to the COUNTY prior to
commencing with the self-dealing transaction or immediately thereafter.
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XVIII.ENTIRE AGREEMENT
This Agreement constitutes the entire agreement between the CONTRACTOR and
COUNTY with respect to the subject matter hereof and supersedes all previous Agreement negotiations,
proposals, commitments, writings, advertisements, publications, and understandings of any nature
whatsoever unless expressly included in this Agreement. In the event of any inconsistency in
interpreting the documents comprising this Agreement, the inconsistency shall be resolved by giving
precedence in the following order of priority: (1) the text of this Agreement (excluding COUNTY’s RFP
No. 18-063 and CONTRACTOR’s Response thereto); (2) COUNTY’s RFP No. 18-063; and (3)
CONTRACTOR’s Response to RFP No. 18-063.
1 IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the day and year first
2 herein above written .
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5 1-1---~::._i..::::;.._.::~------
(Authorized Signature)
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10 Mailing Address
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16 FOR ACCOUNTING USE ONLY:
17 ORG No .: 890500 00
18 Account No.:7309
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Nathan Magsig
Chairman of the Board of Supervisors of
the County of Fresno
ATTEST:
Bernice E. Seidel
Clerk of the Board of Supervisors
County of Fresno, State of California
By: Su~ D1sba::p
Deputy
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Exhibit 1
SELF-DEALING 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, inclu de 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:
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Job
Title:
(2) Company/Agency Name and Address:
(3) Disclosure (Please describe the nature of the self-dealing transaction you are a party to):
(4) Explain why this self-dealing transaction is consistent with the requirements of Corporations Code
5233 (a):
(5) Authorized Signature
Signature
:
Date:
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Exhibit 2
(1)
COUNTY CONTRACTOR
Contact # 1: Contact # 1:
Americo Papaleo Name: Keith DeMonbreun
Information Technology Manager Title: Enterprise Account Executive
Office Phone: (559) 600-5800 Office Phone: 678-908-6700
Email: apapaleo@FresnoCountyCA.gov
Email:
keith.demonbreun@changepoint.com
(2)
COUNTY
Contact # 2:
Sheri Walden
Information Technology Division Manager
Office Phone: (559) 600-5800
Email: swalden@FresnoCountyCA.gov
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Exhibit 3
Optional Premier and Report Assurance Services
Overview of Premier Services
This full set of subscription services is designed to provide you with the assistance needed to drive user
optimization of the Daptiv PPM solution within your organization once the initial implementation has been
completed. This service includes an annual value assessment designed to measure your current usage of Daptiv
PPM with a documented actionable plan to provide focus and direction as you seek to gain the most value from
the Daptiv PPM solution. Optimization services provides for consulting services each quarter to put into action the
personalized value assessment and provide continuous business improvement. A dedicated premier consultant will
coordinate your premier subscription services program throughout the term of the subscription. Access to
ongoing web based training classes each quarter help you ramp new employees and increase the knowledge of
existing employees. As part of Premier Services a discount off of professional services list rates which provides you
with access to further consulting, optimization, training and adoption services is guaranteed for the term of the
subscription. All Premier Subscription Service customers receive priority tier 2 support, which means that all support
cases logged start at the tier 2 level. Based on the level of Premier Subscription Services selected, access to a
hosted sandbox environment, which is a duplicate of your production environment and can be refreshed once per
quarter by request, is included. This benefit also provides early access to upgrades as the Daptiv PPM sandbox is
upgraded prior to the Daptiv PPM production environments.
Premier Subscription Service Options
I. Silver
Term of Service: 12 months Total Price: $9,000
Services Q1 Q2 Q3 Q4
Value Assessment Once during the 12 month subscription: 8 hrs total: 5 hours
remote discovery & 3 hours remote write up/review
Optimization Services* 4 hrs. 4 hrs. 4 hrs. 4 hrs.
Web Based Training* 2 seats 2 seats 2 seats 2 seats
Dedicated Premier Consultant* 10 hrs. 10 hrs. 10 hrs. 10 hrs.
Hosted Sandbox Environment Not Available at the Silver Level
Professional Services Discount 10% List Rate Discount on any additional Professional
Services purchased during the 12 month subscription
Priority Tier 2 Support All support cases begin at the Tier 2 Support Level
* Hours/Seats expire at the end of each quarter. Future allotted hours/seats can be utilized in the current quart er
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II. Gold
Term of Service: 12 months Total Price: $18,000
Services Q1 Q2 Q3 Q4
Value Assessment Once during the 12 month subscription: 32 hrs total: 3 days
(24 hrs) onsite & 1 day (8 hrs) remote write up/review
Optimization Services* 10 hrs. 10 hrs. 10 hrs. 10 hrs.
Web Based Training* 4 seats 4 seats 4 seats 4 seats
Dedicated Premier Consultant* 15 hrs. 15 hrs. 15 hrs. 15 hrs.
Hosted Sandbox Environment One hosted sandbox environment provided during the 12
month subscription
Professional Services Discount 15% List Rate Discount on any additional Professional
Services purchased during the 12 month subscription
Priority Tier 2 Support All support cases begin at the Tier 2 Support Level
* Hours/Seats expire at the end of each quarter. Future allotted hours/seats can be utilized in the current quarter.
III. Platinum
Term of Service: 12 months Total Price: $50,000
Services Q1 Q2 Q3 Q4
Value Assessment Once during the 12 month subscription: 48 hrs total: 4 days
(32 hrs) onsite & 2 days (16 hrs) remote wr ite up/review
Optimization Services* 40 hrs. 40 hrs. 40 hrs. 40 hrs.
Web Based Training* 10 seats 10 seats 10 seats 10 seats
Dedicated Premier Consultant* 20 hrs 20 hrs 20 hrs 20 hrs
Hosted Sandbox Environment One hosted sandbox environment provided during the 12
month subscription
Professional Services Discount 20% List Rate Discount on any additional Professional
Services purchased during the 12 month subscription
Priority Tier 2 Support All support cases begin at the Tier 2 Support Level
* Hours/Seats expire at the end of each quarter. Future allotted hours/seats can be utilized in the current quarter.
Overview of Reporting Services
Reporting Subscription Services are designed to provide you with the ongoing assistance needed to deliver
visibility to key metrics within the organization. Daptiv Reporting Assurance subscription service packages include
report performance optimization, modifications, report development, requirements gathering and training in
accordance with the purchased subscription level.
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Reporting Assurance Subscription Service Options
IV. Silver
Term of Service: 24 months Total Price: $18,000
Term of Service: 36 months Total Price: $27,000
Services Quarter Annual
Business Analysis, Requirements, Modifications,
Coaching and Development*
24 hours 96 hours
System Upgrade Modifications Not Included at the Silver Level
Training Annual
Report Studio Fundamentals - web based 1 seat
Report Studio Fundamentals - classroom 1 seat
Report Studio Advanced - classroom Not Included at the Silver Level
Training Webinars 1 seat
Discount
Customer Enablement Discount 15% List Rate Discount on any additional Customer
Enablement Services (excluding other Subscription
Services) purchased during the subscription period.
Customer Enablement Services discounts are not
cumulative.
* Hours/Seats expire at the end of each quarter. Future allotted hours/seats can be utilized in the current quarter. Additional hours will
require an additional order at the stated discount rate.
V. Gold
Term of Service: 24 months Total Price: $26,000
Term of Service: 36 months Total Price: $39,000
Services Quarter Annual
Business Analysis, Requirements, Modifications
and Coaching*
15 hours 60
Report Development (minimum 2 reports) 20 hours 80
System Upgrade Modifications Not Included at the Gold Level
Training Annual
Report Studio Fundamentals - web based 4 seats
Report Studio Fundamentals - classroom 2 seats
Report Studio Advanced - classroom Not Included at the Gold Level
Training Webinars 1 seat
Discount
Customer Enablement Discount 15% List Rate Discount on any additional Customer
Enablement Services (excluding other Subscription
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services) purchased during the subscription period.
Customer Enablement Services discounts are not
cumulative.
* Hours/Seats expire at the end of each quarter. Future allotted hours/seats can be utilized in the current quarter. Additional hours will
require an additional order at the stated discount rate.
VI. Platinum
Term of Service: 24 months Total Price: $40,000
Term of Service: 36 months Total Price: $60,000
Services Quarter Annual
Business Analysis, Requirements, Modifications
and Coaching*
20 80
Report Development (minimum 4 reports) 34 136
System Upgrade Modifications Included
Training Annual
Report Studio Fundamentals - web based 8 seats
Report Studio Fundamentals - classroom 2 seats
Report Studio Advanced - classroom 2 seats
Training Webinars 2 seats
Discount
Customer Enablement Discount 15% List Rate Discount on any additional Customer
Enablement Services (excluding other Subscription
services) purchased during the subscription period.
Customer Enablement Services discounts are not
cumulative.